A few notes before I begin.
First: Major spoilers ahead for anyone who hasn’t seen the entirety of Netflix’s Making a Murderer, the compelling and well-made documentary about the murder of Teresa Halbach in Manitowoc County, Wisconsin, and the prosecution and subsequent conviction of Steven Avery.
Second: Please do not take this article as any kind of endorsement of Ken Kratz, whose behavior both during and after the trial of Steven Avery has fallen somewhere between “suspect” and “despicable.”
Third: Similarly, please do not take this article as a comment on Steven Avery’s guilt or innocence. It’s my opinion that filmmakers Laura Ricciardi and Moira Demos have, at the very least, exposed several (enraging) flaws in our judicial system.
That being said, there’s something more than a little off-putting about how Ricciardi and Demos have reacted to criticism of the way they presented their story—and what they left out—that I feel needs to be addressed. Making a Murderer obsessives will already know that prosecutor Ken Kratz has come out in severaloutlets claiming that they presented a false narrative that failed to include certain damning facts from the trial (and elsewhere) that pointed to Avery’s guilt. Namely:
*DNA from Steven Avery’s sweat that was found under the hood of Teresa Halbach’s car, and would have been difficult, if not impossible, to plant.
*Material from Halbach’s purse, including her phone and camera, were found burned in a barrel 20 feet from Avery’s door.
*Avery created a diagram of a torture chamber while in prison, and informed his fellow inmates of his intention to torture and kill women when he got out.
*A bullet with Halbach’s DNA, matched to Avery’s rifle, was found in his garage. The gun was confiscated on Nov. 5, 2005, and the bullet found in March 2006, which makes it difficult to think that it had been planted and left for over six months.
In short, Kratz thinks Demos and Ricciardi made a piece of slanted advocacy journalism, and purposefully omitted material that hurt their case in what anyone would consider a violation of journalism ethics. I want to reiterate that I am not endorsing any of Kratz’s arguments. Instead, if I have a thesis statement, it is this:
Journalists are responsible—absolutely responsible—for refuting fact-based criticism in the aftermath of their work. This is true even if those criticisms come from corrupt or disreputable sources, as they often will.
I have experience in this arena, unfortunately. In the process of writing a book about golf in early 2015, I published a story that included unflattering details about one of my subjects. That subject, in turn, appeared on national television to call me a liar, and to present so-called affidavits casting doubt on my work, and to threaten legal action. I knew I was right, and I knew my sources were solid, but I also knew that my sense inner belief wasn’t a sufficient defense. So I made it my business to fight back and make sure that everything he said was refuted, even though that process was stressful and nerve-wracking and arduous. (You can read a recap of the entire situation here, if you’re so inclined.)
What I did was not special. It’s standard practice for journalists, and it’s a necessary part of the job. Demos and Ricciardi have not responded with a fact-based defense. In fact, everything they’ve said has been evasive and vague, and—I hate to say this—casts doubt on the legitimacy of their work. Their strange modus operandi, full of sidesteps, raises suspicions that Kratz, for all his integrity issues, might have a point.
Let’s look at a few of those responses, starting with Vox:
There have been a lot of people digging into the things that happened at the trial that were left out of the documentary. Obviously even in 10 hours you can’t include everything, but in some cases, it seemed like some of what was left out was left out to influence our view of Steven Avery’s guilt or innocence. How did you make the call on what to leave in the film?
We looked to the [prosecution] to take our cues on what to include. So we included the things they said were the cornerstones of their case against Steven Avery.
What’s troubling now is that [former District Attorney] Ken Kratz is coming out in the media and making statements about evidence that was left out, but nobody’s asking him what his sources are, and nobody’s fact-checking that evidence. This is a man who takes a piece of information and stretches it and twists it and turns it into a story, and if you look at any one of these things he’s mentioning, the seed of where his story starts is very far away from what he’s saying in the media.
We would encourage anyone who is taking what Ken Kratz says at face value to take that information and claims of evidence and go back to the transcripts. Go to any part of the public record, and check what he’s saying.
Sorry, but this is nowhere near good enough. Believe me, I know how insanely unfair it feels when someone gets a national audience to spout their own version of the facts at the expense of your reputation. (And hey, at least those outlets reached out to Demos and Ricciardi for a response!) But asking anyone who reads Kratz’s claims to investigate them on their own?? That’s an alarming statement, and when I first encountered the words, I was hoping to read on and find out it was a joke. Demos and Ricciardi spent ten years making this film! They know the case better than almost anyone in the world, and if Kratz is lying, they’re best positioned to refute him. It’s incumbent on them to answer the hard questions that come next.
So why aren’t they? Why don’t they just address the facts and show that he’s being deceptive? “Go check it out yourself if you don’t believe us” is the exact wrong response here, and to call it frustrating is a massive understatement.
From The Wrap:
So when Kratz says that the DNA recovered from Avery’s car couldn’t have been planted or that the bullet had to have been fired while Avery had the gun, what do you say to that?
Ricciardi: Without getting into trying to refute specific pieces of evidence, I would say that our role here was as documentarians. We were not advocates. We’re not part of an adversarial system. We were documenting this case as it was unfolding.
Kratz told People magazine, “You don’t want to muddy up a perfectly good conspiracy movie with what actually happened.” He’s obviously disparaging your work. How do you respond?
Ricciardi: This is coming from a man who argued in closing arguments that reasonable doubts are for innocent people. This is coming from a man who said, “So what if the key was planted?” This is coming from a man who was forced out of office for admittedly sending sexually suggestive text messages to a domestic-violence victim whose case he was prosecuting. We are confident. We stand by the project we did. It is thorough. It is accurate. It is fair. That is why it took us 10 years to produce it.
As I’ve said before, Ken Kratz is entitled to his own opinion, but he’s not entitled to his own facts. If he’d like to put together a documentary and try to discredit us in some way, he’s welcome to do that. We’re not going to be pulled into re-litigating the Halbach case with him.
Those statements—”Without getting into trying to refute specific pieces of evidence” and “we’re not going to be pulled into re-litigating the Halbach case with him”—are akin to saying, “come on, just believe us.”
That’s more than just insufficient. With this tactic, I would argue, the filmmakers approach unethical territory. Ken Kratz is not some obscure Internet commenter shouting at them on Twitter. He is a central figure in the case, speaking to major outlets, and if they can’t refute his specific pieces of evidence, they have failed in some critical way. It swings back to the same argument—real journalists don’t ignore this kind of stuff, even it comes from dubious sources. If they’ve done their job well, they return to the facts as a conclusive defense, and they make people like Kratz look like an idiot. What they don’t do is employ vague language to put up a defensive wall between themselves and any criticism, and take pains to avoid doing the hard work of doubling down on their product.
That’s what guilty people do.
From The New York Times:
Ms. Ricciardi, Ms. Demos and one of Mr. Avery’s lawyers, Dean Strang, disputed Mr. Kratz’s remarks in interviews on Monday, arguing that the documentary couldn’t have included every facet of the case.
“Our opinion is that we included the state’s most compelling evidence,” Ms. Ricciardi said.
Ms. Ricciardi and Ms. Demos on Monday disputed the idea that they were working on Mr. Avery’s behalf. They were inspired to create the documentary after reading about the new charges against him on the front page of The New York Times in 2005, Ms. Ricciardi said.
“He was uniquely positioned to take us and viewers from one extreme of the American criminal justice system to the other,” she said.
Ms. Ricciardi rejected the accusations of bias from Mr. Kratz, saying that his refusal to be interviewed for the documentary rendered them baseless. Mr. Kratz, who resigned as prosecutor in 2010, said he declined to participate because he did not believe the film would be impartial.
Two things here. First, the quote up top reads like it could have come from an embarrassed public figure “responding” through a lawyer’s statement. If there’s one thing any journalist learns almost immediately, it’s not to trust statements that reek of lawyer-speak. They’re designed specifically to avoid engagement with the facts, and to “answer” an accusation without answering, or saying, anything meaningful at all. Again, this is a famous recourse of the guilty.
Second, the idea that Kratz’s critique is “rendered baseless” because he didn’t participate in the film is ridiculous on its face. Subjects who are going to be portrayed in a negative light in some journalistic piece very often will decline to be interviewed. It is so common as to be predictable. It’s always unfortunate, for the journalist, but it certainly doesn’t delegitimize any follow-up critique from that subject. Ricciardi’s seemingly sincere belief that Kratz’s non-participation in her documentary should disqualify him from commenting on said documentary…well, that kind of makes me want to rip my hair out, it’s so misguided.
Under normal circumstances, I might have written this piece a week ago. I’ve been having these thoughts for a couple days, but the fact is that I want to be on the side of Ricciardi and Demos. They presented their case so well, and Kratz comes off so poorly, that writing from the opposite angle feels a little dirty. So I read their responses, and tried to ignore the feelings of disquiet, and silently hoped for a better answer. But none was forthcoming, and an exchange on Twitter solidified my unease.
Until Ricciardi and Demos deign to actually stand their ground and engage with the facts, it’s impossible not to conclude that Kratz, for all his flaws, must be right. If that’s true, it casts a shadow over Making a Murderer that threatens to undermine a very important look at the corrupt state of America’s judicial system. And that would be a tremendous shame.
(Note: Several users on Twitter have pointed out that even if Ricciardi and Demos aren’t responding to Kratz, many viewers are. A good summary of counter-arguments can be found here.)