The Netflix documentary series Making a Murderer opens with wobbly video footage of the release from jail of Steven Avery, a Wisconsin man convicted in 1985 of violent sexual assault. He’d been in prison for 18 years, we learn, until advances in DNA technology revealed that he was innocent of the crime. Then a cello strikes up, and we cut to the succession of images that will open each episode: birds moving through a darkening sky, bare trees, a trailer home, reflections warping in the bruised metal panels of an abandoned car. As the images succeed one another, the mournful cello becomes more urgent. Typed chargesheets and blurred family photographs wash across a snowy landscape. The camera closes in on a rack of knives, then on a dirty window leaking light into a hallway. It moves over a field of junked cars. This is the Avery family’s salvage yard, where the incinerated remains of a young photographer called Teresa Halbach were discovered in November 2005. Steven Avery and his 17-year-old nephew Brendan Dassey were found guilty of Halbach’s murder in 2007, and both were sentenced to life imprisonment. Four years after the quashing of his wrongful conviction for sexual assault, Avery went back to jail.
In ten hours of television that took almost ten years to produce, Moira Demos and Laura Ricciardi minutely reconstruct the investigation of Halbach’s death. In particular, their series explores the possibility that the police framed Steven Avery for the killing and obtained a false confession from Brendan Dassey. The show has been a huge hit. It so moved and angered its audience that in January 2016, a few weeks after the series first aired, more than 130,000 people petitioned President Obama to pardon both Avery and his nephew. By August, Dassey’s conviction had been overturned by a federal court. Avery’s lawyers, meanwhile, hope that further DNA advances will exonerate their client. A follow-up documentary is being filmed.
The traditionally schlocky true-crime genre has been invested with new purpose by such shows. As well as Making a Murderer, there is The Jinx, a 2015 HBO series about a rich New Yorker suspected of several murders, and Serial, a public radio podcast of 2014 that picks over the trial of a Baltimore high-school student convicted of killing his girlfriend. These programmes have attracted large audiences as well as admiring reviews: 19 million people watched Making a Murderer in its first five weeks; 68 million downloaded Serial in its first five months. Since the programmes remain available on the internet, they continue to be debated on Twitter and in blogs and online chatrooms. They are a new phenomenon, then, but they play, sometimes dangerously, with the established shapes of detective fiction.
Though the credits to Making a Murderer suggest a whodunnit, the show has no detective hero to offer us. The police are the suspected villains, and the judicial process is portrayed as weighted against the poor. In the chronically underfunded American justice system, 95 per cent of those charged with a crime plead guilty and waive their right to a trial in exchange for a reduced sentence; those who insist on a trial will be assigned a public defender who may have only a few hours to prepare. The producer and director of Making a Murderer, by contrast, spent years studying one case. They provide no narrative voiceover, but present the words and images they have gathered as evidence for us to evaluate: documents, maps, photographs, aerial shots, tapes of police interviews, news reports, recordings of the trial. The style is patient, understated, anti-sensational. We are invited to act as detectives and jurors, sorting the truths from the fictions and the clues from the red herrings.
In the 12 weekly episodes of Serial, Sarah Koenig investigates the murder in 1999 of Hae Min Lee, for which Adnan Syed is serving a life sentence. Between episodes, Koenig receives information from listeners that changes the story we’re being told: its shape shifts as we listen. Koenig tells us what she’s thinking as she goes along, splicing her account with the voices of the convicted man, the witnesses, the police, the lawyers and the members of her production team. She expresses her doubts about Syed’s guilt, then about his innocence; she explores false leads, admits to reversals and errors and changes of mind. The programme strives for a solution, but it also charts how imperfectly an investigation matches up with its fictional model.
In Making a Murderer and Serial, we ask whether outsiders have been denied justice; in The Jinx, we ask whether a man’s money has protected him. Before directing the documentary, Andrew Jarecki had already made a feature film, All Good Things (2010), inspired by the life of Robert Durst, a Manhattan real-estate heir suspected of killing three people. Durst had watched the film, phoned Jarecki and offered to be interviewed. Jarecki had flushed him out with fiction. In the resulting six-part series, Durst emerges as a slippery, damaged and manipulative figure, and it is hard to tell whether his involvement is driven by a desire to control the story or to surrender to it, to lie or to confess, to be relieved of his fictions or to perpetuate them.
The Jinx opens with a cinematic montage, and its documentary footage is punctuated with dramatisations: it re-creates an episode as described by one witness, and later constructs it again with key details altered. We cannot dispense with fictionalising, Jarecki implies, any more than Durst can, but we can at least be alert to what the fictions are up to. Towards the end, Jarecki himself appears on screen, plotting with his fellow producers to coax Durst into owning up. The director has become a character in the story he is telling, trying to engineer its ending – and showing us that he is doing so.
In the final episode, Durst is shown on tape talking to himself in the bathroom. ‘There it is,’ he whispers. ‘You’re caught. You’re right, of course. But you can’t imagine. Arrest him. I don’t know what’s in the house. Oh, I want this. What a disaster. He was right. I was wrong. And the burping … I’m having difficulty with the question. What the hell did I do? Killed them all, of course.’ It seems to be a confession. Yet we still don’t know: Durst’s speech sounds as if it’s lifted from a drama in which he is playing several parts. Does he know he is being recorded? Would that make it more or less likely that he was telling the truth? The effect is strange, as if Durst were rehearsing a false confession to something he truly did. The viewer gets the feeling that the subject of the documentary has lost his purchase on the difference between fact and fiction.
We are aware that such programmes can effect change, spill into life – this is part of their allure. Durst was arrested for murder in March 2015, on the day before the broadcast of The Jinx’s finale. Last July, Adnan Syed was granted a retrial. Yet while we hope that the documentaries will free the innocent and capture the guilty, we know that along the way – or instead – they may traduce and hurt people. Even to argue that there’s been a miscarriage of justice is often to incriminate a new suspect. Jarecki has been accused of altering the chronology of events in The Jinx in order to create a dramatic climax. Ricciardi and Demos have been criticised for leaving out information that might count against Steven Avery.
Viewers and listeners can themselves feel compelled to resolve the tension set up by such shows. We want to be relieved of the suspicion of being voyeurs. If we see justice done, it will be as if that were what we’d been looking for all along, the blood merely a means to an end. To find a satisfying resolution is to transform our experience from squalor to virtue. It’s the motive of our attention that’s at stake.
If fact can borrow from fiction to snare an audience, fiction can borrow back from fact to conjure authenticity. Crime drama increasingly aspires to the hypnotic detail of documentary, favouring protracted interrogations in police interview rooms over shootouts and chases. The true-crime genre is so dominant now that in the BBC series Murder, a series of one-hour dramas aired in March 2016, the actors speak straight to the camera, to an imagined audience of police detectives or jurors.
The eight-part HBO drama The Night of, broadcast last summer, also adopts the documentary aesthetic: grey, muted, methodical, ambivalent. The series follows the fortunes of a Muslim student accused of killing a young woman in Manhattan after a drink and drugs binge, and, though it opens with a murder and derives its momentum from the whodunnit, it refuses to fulfil the expectations of the form. We don’t find out, for sure, who did it. Instead, it reveals itself as a story about the difficulty – and the danger – of being sure. ‘A chase for the truth in a criminal trial can be vain,’ as one of Avery’s lawyers warns in Making a Murderer. ‘Justice, it seems to me, is staying true to the set of principles we have about what we do when confronted with uncertainty about the truth.’ In form as well as content, these shows are about the value of doubt, the need to tolerate ambiguity. The Night of is so keen to reject the grammar of the whodunnit that it sets itself at an ironic distance from fiction. In one scene, the embattled lawyer played by John Turturro hands a floor plan of the murder scene to an employee at a New York copy shop. ‘Is this for Law & Order?’ the shop assistant asks as he makes the duplicates. ‘I do a lot of props like this for them.’ ‘Yeah, yeah, Law and Order,’ Turturro says laconically.
The tangle of fact and fiction gets to the suspects themselves. In his bathroom soliloquy in The Jinx, Durst seems to be scripting a finale to Jarecki’s documentary. He has become a collaborator. In Making a Murderer the 16-year-old Brendan Dassey appears to confess to a crime he didn’t commit, later claiming he took the detail of his account from a novel he had read. By the time of his incarceration, the viewer doubts whether the boy knows any longer what he has and hasn’t done. In The Night of, the defendant falls silent when the prosecutor finally asks him: ‘Did you kill her?’ He looks up from the witness stand. ‘I don’t know,’ he says.
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