'Making a Murderer' and the American injustice system

Viewers obsessed with murder documentary
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Story highlights

  • "Making a Murderer" and "Serial" have proved to be very popular
  • Issac Bailey: The popularity of reports on injustice reflects the reality that American justice doesn't live up to its ideals

Issac Bailey has been a journalist in South Carolina for the past two decades and was most recently the primary columnist for The Sun News in Myrtle Beach. He was a 2014 Harvard University Nieman Fellow. Twitter: @ijbailey The views expressed are his own.

(CNN)I received a speeding ticket recently for allegedly traveling 49 mph in a 35 mph zone. My reaction to it explains why so many of us have become obsessed with the Netflix documentary "Making a Murderer," and before that, the first year of the podcast "Serial."

Less than a mile after turning off a state highway on which I was driving 60 mph, a police officer who was sitting in his cruiser on the other side of trees at the 35 mph speed limit sign pulled me over. I was slowing down, but apparently not quickly enough. I didn't deserve the ticket because I was not a danger and was in the process of complying with the law.
Issac Bailey
Laws are designed to keep chaos at bay, to set a foundation for a civil society. My not slowing down fast enough was not a threat to the social order.
I initially complained to my wife that I had been victimized by an unfair speed trap in a small town I rarely visit. But then I had to admit that though it was my first speeding ticket in 20 years, it wasn't my first time speeding during the past two decades. I've been punished a lot less than I otherwise could have. I've committed moving violations just about every time I drive -- like most drivers -- even when I don't notice.
About the time of my last ticket, the country was fighting over O.J. Simpson. Most white Americans were horrified that because they believed he got away with a double murder and didn't want to know about prosecutorial mistakes and dubious police actions. Most black people cheered that a system they had long believed was corrupt had been beaten, for once. A lead detective lying on the stand, using the n-word and bragging about planting evidence were not incidental facts to them.

Confronting the reality

"Making a Murderer" is forcing us to confront those disparate views anew, as well as encouraging us to better understand that the people who are ticketed or jailed and imprisoned more, and more harshly, than the rest of us aren't necessarily more deserving of punishment than those of us who have skated by dent of birth, happenstance or policy design.
Michelle Alexander did a great job detailing that arbitrariness in "The New Jim Crow."
Here's one of many examples:
"The clear majority of Americans of all races have violated drug laws. But due to resource constraints (and the politics of the drug war), only a small fraction are arrested, convicted, and incarcerated," she wrote. "In 2002, for example, there were 19.5 million illicit drug users, compared to 1.5 million drug arrests and 175,000 people admitted to prison for a drug offense."
Steven Avery's ex-fiancé: He is not innocent
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It's more than that, though, because more of us are beginning to realize that long-held, foundational principles of the American justice system -- everyone is innocent until proven guilty; you will only be convicted if there is no real doubt that you committed the crime -- are either outright lies or fantastical tales we tell ourselves.
"It's just simple. Once Steven Avery is accused of this killing -- and a lot of things seem to clearly point to him having done it -- as much as you mentally want to give him the benefit of doubt, it becomes impossible," Wisconsin State Assembly Rep. Mark Gundrum said in "Making a Murderer."
To fully appreciate the power of that statement, you have to know that Gundrum pushed for an important criminal justice reform bill in Avery's honor. Avery spent almost 18 years in prison for a rape he didn't commit. DNA testing done by the Innocence Project proved that a different man was the assailant. While he served time, the actual rapist was free to hurt other women. That man, Gregory Allen, is serving a 60-year prison sentence for a 1995 rape.
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Gundrum led an effort to lessen the chances that another innocent man could be convicted, that is until Avery was charged with murder in the death of Teresa Halbach, a photographer whose body was found in the Avery family junkyard, while he was suing over his prior false imprisonment. Avery was convicted of the murder in 2007.
Gundrum knew about the flaws in the system, knew that not everything is what it seems, no matter how sure the cops and prosecutors sound. And still, even he couldn't hold fast to the presumption of innocence standard we pretend is a bedrock of our system.
Since the airing of the documentary, we've learned that a juror in the Avery case said the verdict was a sort of compromise, that not everyone in the room believed he had done what he had been charged with: the definition of reasonable doubt if ever there was one. No matter; they sent him to prison anyway.

History of 'reasonable doubt'

That shouldn't be surprising, given that the reasonable doubt standard today is responsible for things it wasn't designed for. While many people assume the standard grew out of a legal foundation, it began as something else entirely, James Q. Whitman of Yale Law School wrote in a paper called "Origins of Reasonable Doubt."
"The 'reasonable doubt' rule was not originally designed to serve the purpose it is asked to serve today: It was not originally designed to protect the accused. Instead, it was designed to protect the souls of the jurors against damnation," he wrote. "Convicting an innocent defendant was regarded, in the older Christian tradition, as a potential mortal sin. The purpose of the 'reasonable doubt' instruction was to address this frightening possibility, reassuring jurors that they could convict the defendant without risking their own salvation, as long as their doubts about guilt were not 'reasonable.'"
That would be little more than a curious historical footnote if it wasn't still resulting in so much harm today. Last year, I documented during a five-day series in The (Myrtle Beach) Sun News newspaper the plight of a man named Jamar Huggins. He's serving a 15-year prison sentence for his supposed role in a home invasion.
He was convicted even though nothing tied him to the crime or the victims, and the one person who fingered him was a woman convicted of a similar crime with a different man.
She was addicted to crack at the time and recanted on the stand. A juror I spoke to said they didn't believe a word of what she said, but they convicted him solely on her initial claim anyway.
An alternate juror told me there's no doubt he would have voted not guilty had he been the 12th, not 13th juror -- which would have been enough to set Huggins free. Talk about arbitrary. Because of that roll of the dice, Huggins sits in prison hoping an appeal is successful instead of raising his young kids and taking care of his elderly mother.
I complained about the arbitrariness of a cop giving me a ticket in a speed trap. That's nothing compared to what men like Avery and Huggins -- and too many others -- face. Finally, the public seems to be recognizing that ugly reality.