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“Making a Murderer,” “The Night Of,” and the case against the criminal justice system

News that Brendan Dassey’s conviction was overturned was no doubt a jolt of happiness for those of us who watched Making a Murderer, the Netflix documentary series about the bizarre and cruel persecution of Stephen Avery and his cousin Dassey. The Netflix documentary series became a nationwide obsession over the Christmas holiday last year. Netflix posted it on Dec. 18, just in time for viewers to escape into an hours long binge-watch of, not a fictional crime drama like Breaking Bad, but an all-too-true deep-dive into the modern American criminal justice system.

I’d venture to guess that the sort of people who watch documentaries on Netflix are not likely to be that familiar with the everyday workings of police and prosecutors, nor with the everyday existence of people like Stephen Avery and Brandon Dassey—poor whites with well below average intelligence (according to the series) whose extended family live in cheap houses or trailers gathered near the family business—a junkyard—and pass the evenings drinking, smoking, and shooting guns around a bonfire. Surely people like this should be characters in a babymama drama on The Jerry Springer Show, not pawns in a Kafkaesque crime procedural?

Making a Murderer caused many who saw it to seriously question, if not abandon, one of the convenient fictions that most Americans believe—that, in the unlikely event we get arrested for a crime we didn’t commit, all we have to do is explain ourselves and the system will quickly realize that it made a mistake. After all, only guilty people hire lawyers.

When you see outrage after outrage pile up in the cases against Avery and Dassey, it’s hard to not come to the unsettling realization that the criminal justice system is so big and so powerful that most defendants are effectively defenseless, even if they have excellent defense attorneys, like Avery’s attorneys Dean Strang and Jerry Buting.

Every time Strang and Buting expose a lie, discover a fact, or impeach a witness, judges, prosecutors, and police investigators simply stick to their story. Injustice continues even when everyone sees it. The many different arms of the criminal justice complex work quite well together when applying force downward onto the accused, or anyone else they need evidence from. Everyone in the machine benefits by making and winning cases. And no one risks paying the price for mistakes that destroy lives and pervert justice. Police and prosecutors operate with sovereign immunity and the mountains of case law in which judges have granted all kinds of leeway, or discretion, to law enforcers at the expense of those of us whose rights should be covered under the Bill of Rights.

And when injustice is done, no one stands to benefit by making things right. In fact, admitting a mistake or challenging the actions of a peer is, at the very least, career suicide in the criminal justice complex. Judges seldom contradict other judges. Cops don’t snitch on other cops. Some might call this a respect for precedent or professional courtesy. But it looks a lot like a non-aggression pact that keeps everyone safe in well-paid, high-status positions in society.

The new HBO limited series The Night Of expertly dramatizes all this—the apathy and inertia that’s occasionally tinged with malevolence. Set in New York City in 2014, it’s about a Pakistani-American college student from Queens (Nasir “Naz” Khan, played by Riz Ahmed) and his ordeal after being arrested for murder. Naz makes a series of very bad, but harmless, decisions that put him in a house with an obviously troubled young woman, drugs, alcohol, and a very big knife. They have sex, then he passes out. When he wakes up, she’s been stabbed to death.

When veteran homicide detective Dennis Box (played by Bill Camp) swoops in to build the case against Naz, you know that the ordinary young man’s life is ruined. The “subtle beast” (as he’s called by Naz defense attorney John Stone, played by John Turturro) cajoles and inveigles not only Naz, but the handful of witnesses involved, into statements that build what looks like an unassailable circumstantial case.

But it’s not really cases were talking about, where fact and falsehood matter, where public servants and innocent bystanders offer accurate, complete, and disinterested information that’s weighed carefully by the police, the prosecution, the preliminary judges, and, finally, by a trial jury eager and equipped to rule fairly on the facts and the law.

That’s how Naz, raised in American public schools, thinks the system works. He starts to tell Stone what really happened, why he’s innocent, but Stone stops him. It doesn’t matter what the facts are, Stone says, were telling a story, and we have an advantage because we get to hear the State’s story first.

The bad news for Naz, and for any defendant brave enough to go to trial instead of taking a plea bargain, is that the State has almost unlimited resources available to tell their story, and The Night Of catalogs a lot of them. Camera footage from all over the city. Exhaustive information on defendants, their families, and witnesses, including school and criminal records, financial information, and wireless phone records. The power to use this information to pressure witnesses to come forward, stay silent, or slant their stories. The right to seize and hold indefinitely anything—cars, computers, phones, etc.—from the defendant’s friends and family on nothing more than a suspicion that they might yield evidence. The right to trick defendants and witness by lying to them. The right to extort testimony by threatening witnesses with the prospect of a criminal charge from an entirely different case. An army of cops, crime scene and lab technicians, paramedics, medical examiners, and assorted bureaucrats well-disposed to interpret the facts in a way that fits the State’s story.

After seven episodes—with the eighth and final episode to be released Sunday, August 28—it’s clear that, whatever the outcome in court—it will come far too late for Naz, whose time in the Purgatory of Rikers Island has swiftly prepared him only for Hell, whether in this life or the next.

If our hearts break when we see a doe-eyed kid inhabited by a demon on screen, how are we to react upon making a reasonable guess at what 10 years in prison has done to Brandon Dassey? Quitting our allegiance to and reliance on the system whose raison d’être, like Satan himself, is to accuse, and then cultivating a desire to look at the accused with love is the least we can do.

As of Monday, Aug. 22, it looks like you can watch at least the first episode of The Night Of at this link.

The first episode of Making a Murderer is available free on YouTube.