Sunday, March 26, 2017

Where it All Went Wrong - Kinda

I've been trying to figure out just why I found Michael D. Cicchini's deconstruction of the case(s) against Steven Avery so annoying.  

It's not that he says anything that's particularly wrong about how criminal law and procedure actually work (and don't).*  And it's not that Convicting Avery: The Bizarre Laws and Broken System Behind Making a Murderer is a polemic.  I mean, it is a polemic, but I'm OK with that.  Hell, half of what I write here is polemic.

And on the whole taking the book seriously won't make anyone stupider.  It's not bad.  It's just annoying.  And I think I've figured out why.

Go back to Mencken and what he wrote in "The Divine Afflatus" (1917).
Explanations exist; they have existed for all time; there is always a well-known solution to every human problem - neat, plausible, and wrong.
If you don't go for Mencken, try Trump.
Nobody knew that health care could be so complicated.
It's just not that neat.  Not that simple.  

Sure, a show up is a terrible way for the cops to get an identification if they want to be sure they're identifying the right person.  And one bad ID tends to taint the next, which combine to taint the next even further.

And yeah, police are very good at getting people to waive their right to silence.  (And the courts are enthusiastic partners in the effort.  I mean, really, you can't invoke your right to silence simply by refusing to speak.  You have to announce that you are invoking.  You must, that is, speak in order to remain silent.  Welcome to OZ - or perhaps Catch 22.)  And of course, what you say will be held against you.  

And yeah, cops tell stretchers on the witness stand.  All the time.  (Of course, so does nearly everyone else - mostly on total trivia. The first lie every witness tells is swearing to tell the truth, but it's particularly pernicious when the cops do it.  Their lies don't tend to be trivia.

So yeah, all of that.

But it's not all even.  And it's simply worthless to be equally outraged about everything.   Maybe the cases against Avery were/are that bad and the cops simply decided to frame him.  It happens.  Not often, but it happens.  

Except that I'm not convinced.  

There's a tunnel vision to law enforcement - cops and prosecutors both.  Once they've figured out what they think happened, they focus only on proving it.  There's little room for reconsideration or doubt.  They're not in the business of second guessing.  And they too often decide what happened by looking at the evidence through the lens of what they'd like to find.

So give them a reason to hate Steve Avery and it's no surprise that they'll find themselves readily convinced that he killed even if the evidence is less than compelling.  (And it's not as far fetched as Cicchini makes it sound.  Often the simplest explanation is the right one.  Even smart people do stupid things.)

As I said, it's annoying.  Cicchini doesn't understand (or pretends he doesn't) nuance.  His world (at least as presented in Convicting Avery) is black and white.  The real world isn't. Which is perhaps why I don't come away from the book convinced that Steve Avery was framed.  Though it seems pretty clear that he's not guilty beyond a reasonable doubt - and maybe not at all.

There's lots wrong with the way police and prosecutors pursue cases.  And maybe Avery's is a model of error and bad judgment and bad law and misconduct.  Maybe it's the grossest miscarriage of justice ever. 

Or maybe it was an excuse for a book that's not wrong exactly, not a bad book certainly, but just - well - annoying.  

I am grateful to the publisher for providing me with a copy.

*CAVEAT:  I'm one of the apparently very few people who didn't watch Making a Murderer, and I don't know the particulars of Wisconsin law or procedure, so I can't actually vouch for the factual accuracy of that stuff.  

1 comment:

  1. There ya go, violating the team rules. That huge distance between actual innocence and failure to prove guilt beyond a reasonable doubt is a no mans land where only haters live.

    I listened to the first episode of Making a Murderer, and was appalled at how relatively pedestrian argument for, and claims of innocence, the sort we have 97.3% of the time, were seen as glaring proof of a wrongful conviction. It didn't surprise me that people didn't realize it, but how easy it was to create a belief based on rhetoric and vapors.

    The only shame is jurors, them, their neighbors, their mommies, don't seem to share their beliefs. Go figure.