Kathryn Schulz’s Confused Take On The Steven Avery Case

In a rather confused take on the Steven Avery case–the subject of the Netflix documentary Making a Murderer, Kathryn Schultz of the New Yorker writes:

“Making a Murderer” raises serious and credible allegations of police and prosecutorial misconduct in the trials of Steven Avery and Brendan Dassey. It also implies that that misconduct was malicious. That could be true; vindictive prosecutions have happened in our justice system before and they will happen again. But the vast majority of misconduct by law enforcement is motivated not by spite but by the belief that the end justifies the means—that it is fine to play fast and loose with the facts if doing so will put a dangerous criminal behind bars.

Pardon me, but the belief that the end justifies the means, which then prompts egregiously immoral actions–like the kind so clearly on display in Making a Murderer, is spiteful and malicious; it leads to actions that trample over all and any that get in the way of the particular end being realized. In the Steven Avery case, that belief–a rule for action–is spiteful because it disregards the moral and professional standards that are supposed to govern the conduct of law enforcement activity. I don’t mean to give Schulz a little lesson in moral philosophy but acting on the basis that the end justifies the means, which can mean treating a person as not a person–you know, one deserving to be treated as innocent until guilty–is a spectacular moral failure. It treats a person–like Brendan Dassey, abused in order to produce a coerced confession–as a means to an end, the kind of moral catastrophe Kant warned against.

Moreover, given Schultz’s apparent passion for the truth and for empirical assessments of the claims of investigative journalism, what does she base such a perception of law enforcement on? It cannot be the vast literature on prosecutorial misconduct or the racist system of mass incarceration which is this nation’s greatest current moral failure. Or is she simply taking law enforcement’s claims at face value? Still, it is nice to see a journalist sticking up for the side with the power to ruin innocent people’s lives. Those folks really don’t get enough positive press.

Ricciardi and Demos instead stack the deck to support their case for Avery, and, as a result, wind up mirroring the entity that they are trying to discredit.

Schultz imagines that journalism needs to be governed by the ‘both sides are equally culpable’ rule. But that is precisely not what journalism is supposed to be about. The best journalism is always partisan, a case often made quite eloquently by Glenn Greenwald (here is the most recent instance.) Moreover, most importantly, in the Avery case, plenty of supposed evidence against him was presented–he is in jail, after all. Perhaps someone should present Avery’s side of the story and concentrate on that so that the full dimensions of the tragedy at play can be brought out–rather than have it obfuscated once again by the considerations that led to his conviction in the first place.

Schulz is confused about both the issues that are supposedly the focus of her essay: the morality of ends-justifies-means behavior and the standards governing investigative journalism.

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