Court of last resort
Can true crime stories help fix a broken justice system?
by Nathan J. Comp December 15, 2016
Bradley Ross was on his way to pick up his fiancée the night of Nov. 19, 2004, when he ran a red light in Fort Wayne, Indiana, and collided with another vehicle. According to the police report, Ross, 25, exited the car and fled the scene.
Over the last decade, “true crime” has saturated American pop culture, with an offering of serialized documentaries, television shows and podcasts that revel in their potential as crusaders for truth and justice. Purveyors of true crime increasingly are pushing the boundaries of a genre long seen as tabloid fodder into a court of last resort for those the justice system has failed.
Since 2011, “new true crime” documentaries and podcasts have been instrumental in helping get at least three wrongfully convicted men released from prison (Paradise Lost), at least two convictions overturned (Making a Murderer and Serial), and one suspected serial murderer arrested (The Jinx: The Life and Deaths of Robert Hurst).
Featured in Netflix’s Making a Murderer — a documentary that raised questions around the convictions of two Manitowoc men for a grisly 2005 murder — Madison defense attorney Dean Strang says it’s impossible to know how much influence these serials had on the cases they documented.
Another Wisconsin-based documentary — tentatively scheduled for release late next year — explores the unsolved disappearance of Fitchburg resident Amos Mortier. Based on my investigative reporting, What Happened to Amos? raises questions about one man’s innocence and another’s guilt.
I asked Strang whether the genre can make a meaningful difference in the judicial system. “I think in a particular case where some sort of treatment of a true crime identifies, convincingly, new suspects, or raises new doubt about the accuracy of a conviction, is where they have the most impact,” he says.
When I graduated from Middleton Alternative High School in 1996, I wanted to make movies. That summer I discovered the kind of films I wanted to make after watching Paradise Lost: The Child Murders at Robin Hood Hills.
Filmed in the cinéma vérité tradition of the 1960s, filmmakers Joe Berlinger and Bruce Sinofsky documented the trial of three teens accused of murdering three 8-year-old boys, whose sexually mutilated bodies were discovered in an isolated woods in West Memphis, Arkansas, on May 6, 1993.
Authorities claimed Jason Baldwin, 16, Jessie Misskelley, 17, and Damien Echols, 18, killed the boys in a show of fealty to Satan.
“We came down on the scene a week after the arrest of the West Memphis Three to explore how these kids became so disaffected with life that they would take three 8-year-olds into the woods and sacrifice them to the devil,” recalls Berlinger during a recent phone interview. “There was no agenda for social justice; we thought they were guilty.”
The kids-killing-kids storyline was consistent with what was happening elsewhere. That February, two 10-year-old boys in Britain were caught on camera leading 2-year-old James Bulger from a Liverpool shopping mall before beating him to death. Grainy images of the toddler holding his killer’s hand were broadcast around the world.
By the time filming began, Misskelley had confessed to restraining one boy as Baldwin and Echols sodomized and murdered the other two.
“All of the papers had printed the alleged confession of Jessie Misskelley,” Berlinger says. “We later find out it was a highly manipulated statement, and the confession that was printed wasn’t even as given, but was the result of multiple interrogations.”
Twenty-three years later, 16-year-old Brendan Dassey confessed to helping his uncle, Steven Avery, rape and murder 25-year-old Teresa Halbach before burning her remains in a fire pit.
Like nearly everybody interrogated by police over the past 60 years, detectives in both cases used the Reid Technique, which relies on “reading” nonverbal cues for signs of dishonesty, exaggerating the physical evidence — real or not — to induce feelings of hopelessness and wearing down psychological resistance.
“We’re the last English-speaking country to cling tenaciously to the Reid Technique,” Strang says. “There are more reliable techniques...that are grounded in good behavioral psychology, not 1940s psychology.”
Both teens — Misskelley and Dassey — had below-average IQs. Their statements exhibit telltale signs of coercion, but in 1994, when Misskelley went on trial, false confessions weren’t well understood.
West Memphis police recorded only the last 41 minutes of Misskelley’s 12-hour interrogation, so defense experts had little to work with. Dassey’s four-hour police interview in 2006, on the other hand, was videotaped per Wisconsin law and was cited by the U.S. magistrate who overturned his conviction on Aug. 12, 2016.
Strang says without the videotape, now available online in its entirety, the written police report would have become the definitive account of the interrogation.
“That report would have presented a spontaneous, unburdening, articulate young man,” Strang says. “That video puts the lie to any sanitized written description of that interview.”
Even champions of the Reid Technique have said the detectives who interrogated Dassey crossed lines that shouldn’t have been crossed.
“Those lines often are crossed,” Strang says, “and even when they’re not, the Reid Technique, by design, is psychologically coercive, manipulative, and the results can be false confessions by people who think the only way out is to tell police what they want to hear.”
In August 1996, a man named Mike Polkinghorn took his 15-year-old daughter to meet detective David Miller at the Middleton Police Department after finding a quarter-ounce of marijuana hidden in her pillowcase.
Miller then called me.
“I contacted Comp at work and told him I would be forwarding a charge of delivery of THC to the district attorney’s office,” Miller wrote in a Sept. 9, 1996, report.
The girl, and her friend, accused me of selling them the weed and identified me from photo lineups. I didn’t know either of them; neither could recall the date or time this deal allegedly occurred. But that didn’t matter. At 18, I already had too many run-ins with Middleton police, and Miller knew I smoked copious amounts of weed.
Innocence notwithstanding, the wrongful accusation taught me an important lesson: When it comes to crime, the truth is what authorities decide it is.
The only presumption was guilt. Family and friends asked the same accusatory question: Why would she accuse you?
There wasn’t a satisfying answer until weeks later when I learned the girl had lied. According to Miller’s report, “...her dad was pressing her very hard for the seller’s name and she had to name someone, so she picked Nate Comp as...his name came to mind.”
There it is: Because my name came to mind.
The outcome didn’t reaffirm any faith that justice prevails. In the CCAP-era, a record of being charged bears little distinction from a conviction. Criminal charges, regardless of severity, are always life changing. It frightens me still to think how easily such a change can come.
Miller could have let the district attorney hash it out, with lifelong repercussions for me. To his credit, when provided new details, he did the difficult thing; he copped to being wrong.
If one is destined for a wrongful conviction, selling weed to a minor isn’t the worst charge. It isn’t like triple murder, or killing a cop, which Randall Dale Adams came within three days of being executed for in 1979.
Filmmaker Errol Morris’ 1988 documentary, The Thin Blue Line, re-examined the 1976 murder of Dallas police officer Robert Wood. Adams was convicted in part because of testimony from 16-year-old David Ray Harris.
But Harris had bragged to others about killing “that pig in Dallas,” and had stolen the car and gun used in the crime.
Arrested for a different murder a decade later — on the day Morris planned to interview him — Harris joked during his prison interview, “I often say it’s my favorite excuse for missing an appointment: ‘I’m sorry, I was off killing someone.’”
Harris eventually admitted to killing Wood but was never charged. He was executed in 2004 for a 1985 murder. The Thin Blue Line — a seminal work of new true crime — inspired a generation of filmmakers, journalists, advocates and others to begin taking a closer look at the work of police and prosecutors.
According to the University of Michigan’s National Registry of Exonerations, 435 of more than 1,900 exonerations on record resulted from advances in DNA testing. Of these, 232 stemmed from mistaken witness identification, 159 involved official misconduct, 132 involved perjured testimony and false accusations, and 79 involved false confessions.
“This is just the tip of the iceberg, because not every case makes its way through the system, and not every case has DNA evidence,” Berlinger says. “Twenty of those DNA exonerations were death row cases like Damien Echols. Paradise Lost was my wake-up call.”
As much as 4 percent of the nation’s prison population are wrongful convictions. “That’s a lot of people in a nation with 2.2 million in prison on any given day,” Strang says.
The same year I was accused of selling drugs, a 19-year-old Eau Claire man fled to Madison after selling drugs to an undercover officer. That man, Amos Mortier, lived in Dane County until he went missing on Nov. 8, 2004.
In August 2007, 17 search warrants implicating local musician Jake Stadfeld in Mortier’s presumed murder were unsealed in Dane County Circuit Court. I later began working on a book about the case, intrigued by people who’ve gone missing and those who’ve gotten away with murder.
But the deeper I dug, the more I doubted Stadfeld’s guilt.
In fact, the evidence eventually pointed to a man who, like Stadfeld, allegedly owed Mortier a large amount of money relating to Mortier’s marijuana business. A former neighbor of this man told authorities in October 2005 that he had confessed to killing Mortier, providing numerous details that jibed with facts not publicly known.
Asked what ruled out this man as a suspect, former Fitchburg detective Shannan Sheil-Morgan last month told me, “Well, the person who told us that story is a crackhead, and I didn’t find him to be a credible person.”
The man had allegedly told his “crackhead” neighbor that he had stabbed and disposed of Mortier on a farm near Poynette. Phone records show the man called a farm northeast of Poynette prior to Mortier’s disappearance. Sheil-Morgan couldn’t recall what connection the man had to the farm, but said photos of the farm taken by investigators were proof the search had been thorough.
Thoroughness, however, didn’t include searches of any homes, vehicles, barns, garages or computers. Sheil-Morgan places the man outside of Dane County that day; he has claimed to have worked all day — in Madison. After a request for an on-camera interview was sent to the man from What Happened to Amos? director and Verona native Kristina Motwani in August, he put his East Washington Avenue house up for sale.
It sold in October.
Authorities haven’t shown any interest in reviewing the evidence.
I asked Strang about this almost uniform response from law enforcement when challenged. “There would be humiliation, embarrassment and uncomfortable political questions asked of people who might lose their public offices,” he says. “That’s why police and prosecutors so often close ranks and seek to avoid scrutiny, and even to deny the obvious.”
Berlinger and Sinofsky underwent an evolution following their first interviews with the West Memphis Three.
“Damien was hard to read because he was a narcissistic, nihilistic teen who was digging the fact that people thought he was capable of doing this,” Berlinger says. “But [Baldwin] struck me as incredibly credible in his denial of guilt.”
Baldwin’s scrawny limbs hinted that something was off. “If you believed the prosecution’s story, he was wielding a 10-inch serrated hunting knife and castrated one of the boys,” Berlinger says. “It was a gut feeling that this does not seem believable.”
Paradise Lost didn’t challenge the prosecution’s theory, but kept a critical distance from its subjects. “The film was an exercise in journalistic storytelling where we didn’t tell the audience what to think,” Berlinger says. “We decided we wanted to treat the audience like a jury, and that’s a bold decision because you have somebody’s life in your hands potentially.”
The film earned awards and great reviews, but it didn’t move the needle in the case. “We were haunted by the fact that even though we were getting pats on the back, these guys were still rotting in jail, one of them on death row,” he says.
He and Sinofsky, who died in February 2015 from diabetes-related complications, eventually made two more Paradise Lost films, Revelations and Purgatory. As Purgatory was being filmed, new DNA evidence led to the 2011 release of the West Memphis Three, by then in their 30s, under an Alford plea. They could maintain their innocence, despite pleading guilty to three counts of first-degree murder. Each was subsequently sentenced to time served.
“These guys did get out, but they’re not really exonerated, and if it wasn’t for the films, Echols himself has said that he would be dead,” says Berlinger. “If the state of Arkansas believed these guys were guilty they wouldn’t have let them out.”
I asked Berlinger if blowback from authorities ever led him to second-guess himself.
“No, because I didn’t burden myself with having to prove innocence,” he says. “I burdened myself with there being too many questions in this case to put somebody to death. Even though my personal belief was total innocence, the mission of the film does not take on that burden.”
Even when a case is clearly flawed, authorities often dig in their heels. When Dassey’s conviction was overturned, Wisconsin Attorney General Brad Schimel successfully fought to keep him behind bars pending resolution of the matter.
“It’s easier and more appealing to use the state’s interest in finality to hide the truth or to sweep it under the rug,” says Strang. “Much less cynically, there is the confirmation bias. Once we come to a conclusion on something, it is very hard to change our minds.
Media scholars like Thomas Joseph Watson have admonished new true crime for failing to acknowledge the artifice of its own constructed nature.
“The Paradise Lost...films have intervened in the progression of an ongoing criminal case, shifting and revising assertions of guilt and culpability,” Watson wrote in a 2014 paper, “Rethinking History Through Documentary.” “In an attempt to document the story and the events that emerged following this violent triple homicide, the violent reality of the case has been continually re-contextualized.”
Berlinger shrugs off the criticism. “If it’s the only way to bring attention to a case that is flawed, where an innocent person is sitting in prison, I’ll take that flawed approach,” he says. “The film is not the court of law. The film is saying, ‘Hey, there is something fucked up here, and we need to re-look at it.’”
Serial’s Sarah Koenig has also been criticized for playing “hide the ball” with what traditionally would have been “the news” for a big reveal at the end of 12 episodes.
Filmmakers Andrew Jarecki, Marc Smerling and Zachary Stuart-Pontier came under fire for their HBO series The Jinx: The Life and Deaths of Robert Hurst. Some questioned how long they held on to new evidence linking Durst, a Manhattan real estate heir, to a 2000 murder in L.A., along with a seeming hot-mic confession, before handing it to police.
Strang downplays suggestions that Making a Murderer omitted key details to curry sympathy for Steve Avery. He says the series was “quite” faithful to the truth.
“As someone who had a front-row seat to that entire trial and pretrial process for 16 months, it looked like an accurate description on the whole of what happened.”
In 1840, writer William Thackeray’s first-person essay, “Going to See a Man Hanged,” chronicled the cheer among the 40,000 attendees of a public execution in Britain.
“We asked most of the men who were near us, whether they had seen many executions — most of them had,” Thackerey wrote, noting that most also were unmoved by the spectacle. “People did not care about them at all; nobody ever thought of it after a bit.”
Many still view convicts in a similar way. Thousands of innocent unknowns languish in American prisons today because they’re too poor to prove their innocence. Ever heard of the War on Injustice? Probably not.
Although it has yet to be officially declared, new true crime journalists might be its front-line soldiers, shining a light on the judicial system’s darkest moments. As a genre, its lasting influence is likely more diffuse. “It can affect the culture in years ahead in ways that lead to reform in the public’s willingness to accept reform,” Strang says. “I do think these things become important in opening minds and shaping popular views of the justice system.”
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