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From Serial to Making a Murderer: can true crime as entertainment ever be ethical?

Real life crime stories have long been treated as entertainment, but with the rise of global phenomenons like Serial and Making a Murderer, the line between investigation and titillation is more blurred than ever.

In her book The Journalist and the Murderer, Janet Malcolm wrote something that shocked and angered people. In her eyes, the objective analysis of evidence to determine a person’s guilt or innocence is an utterly futile endeavour. “It is like looking for proof or disproof of the existence of God in a flower,” she wrote. “It all depends on how you read the evidence. If you start out with a presumption of his guilt, you read the documents one way, and another way if you presume his innocence. The material does not ‘speak for itself’.”

The same goes for reading people: the presumption of guilt will load the person’s words, tone, expressions and actions with strangeness and darkness, the presumption of innocence will vindicate them. Objectivity is impossible.

It’s also boring.

I am no bystander in the wave of true crime dramas that have crashed into popular culture in recent times: from Sarah Koenig’s Serial podcast, to Andrew Jarecki’s HBO series The Jinx, and now, Laura Ricciardi and Moira Demos’s Netflix show Making A Murderer. I have prayed for Adnan Syed’s innocence, I have sworn my certainty of Robert Durst’s burping guilt, I have taped a picture of Dean Strang inside the locker of my heart. I love these shows for their strangeness, for their sheer spectacle, and for the thrill each time new and crazier evidence comes to light, confirming my insightful suspicions.

The makers of SerialThe Jinx, and Making a Murderer would all declare their purposes were twofold: to make an entertaining programme, and to find the truth. If finding the truth necessitates remaining objective, I’m not sure to what extent these aims are compatible.

Real life crime stories have long been treated as entertainment: from eighteenth-century tabloids to In Cold Blood to The Thin Blue Line. Take, for example, The early twentieth century magazine, True Detective, which splashed sensational stories across its covers like “The Riddle of Oregon’s Dismembered Brunette”, and spawned giants of the genre like Dashiell Hammett, Jim Thompson, and Ann Rule. SerialThe Jinx and Making a Murderer do show how far the genre has developed since then, but they also share some key similarities. They all concern the violent deaths of beautiful young women, they all suggest that the police were incompetent in securing justice for that woman’s death, and they all invite the audience to retrace the gory details of her killing (perhaps in order to “save” her by ensuring her real killer is punished).

This is just one of the immediate ways in which true crime can be ethically tricky. Do we want to know every gory detail of these crimes because we care about the victim, or because it excites us? Do we crane our necks at grieving parents for our own entertainment? Is it inherently unethical to treat real lives as spectacle? Aside from general distastefulness, what practical impact does taking evidence out of the courtroom, and into the laps of a potentially limitless audience, have over a case? What are the benefits, and the dangers, of deciding that the law is wrong? These questions are easily asked, and difficult to answer.

If, as Malcolm argues, our reading of a case is utterly dependent on our own presumptions, what do true crime programmes presume? Overtly or not, the ultimate goal of these programmes is to set out to contradict the current narrative surrounding these cases. On the latest series of Serial, Sarah Koenig says, “I don’t think the state’s story is the correct story.” That’s a provocative, rebellious, exciting statement. The most interesting conclusions is not, “We can never know for certain, and on balance, we agree with what the state decided at the time.” For better or worse, these programmes do begin with a presumption before they read the evidence, and the presumption is that the dominant narrative is wrong.

As its title suggests, Making a Murderer is in many ways a story about storytelling: it argues that the state, and contemporary media, fabricated the character of “Steven Avery, the Murderer” because the story was irresistible. It argues that the prosecution, newspapers and television networks manipulated the jury (many potential jurors said at the time they were unfit for court because they were already certain of Avery’s guilt) by offering them a shocking story of kidnap, rape, and murder. Their theory, that Avery was framed by police, is perhaps as shocking in its own way: it’s a tale of systematic deception and incompetence; lies, betrayal, injustice. Like Serial and The Jinx, it has to pose a more interesting alternative to an already interesting story (Serial posits that Hae Min Lee’s real killer still walks free, The Jinx that power, money and shrewdness enabled a violent serial killer to evade capture). Also like Serial and The Jinx, it’s an artistically rendered show, which ensures its subjectivity.

The makers of these programmes have all been accused of threatening their objectivity by becoming too close with their subjects. A large part of true crime’s appeal is the level of access it brings the viewer: they should be able to offer a more intimate and comprehensive portrait of their subjects than the courts. Koening and Jarecki in particular structure their stories around their own personal interactions with friends, family and, most importantly, their subjects themselves. Koenig said her relationship with Syed is “Definitely [...] weird and hard to define. It’s a personal relationship. It’s not truly professional.” Jarecki’s ultimate opinion of Durst changes when he (Durst) stops answering his calls. When these personal relationships eat significantly into the narrative, they command unusual power over audience’s final judgements.

So, too, has each programme been criticised for manipulating the evidence, or leaving out problematic pieces of information that dilute its narrative. Serial failed to include diary extracts that portay Adnan Syed (the man imprisoned for murder) as abusive to his girlfriend, the case’s victim, Hae Min Lee. The Jinx changed up the order of eventsMaking a Murderer did not disclose that Steven Avery called Teresa Halbach on the day she died, using a feature to disguise his number.

These programmes have also all been criticised for taking the law into their own hands – the argument being that they could jeopardise ongoing or potential future investigations. The makers of The Jinx, for example, used a key piece of evidence – a handwriting sample from the murderer that matched Robert Durst’s (pictured above) – in their show’s dramatic reveal. As they buried this lead for the sake of suspense, they didn’t give it to authorities, but held onto it for months in order to present it to Durst on camera. Durst was then arrested the evening the finale aired.

This, of course, has direct repercussions for the police, but more indirect ones too. By moving the power to assess guilt and innocence into the hands of the general public who sit outside of juries, audiences are encouraged to sleuth for their own information. After Serial aired, listeners poured over the private diary entries of a dead woman searching for clues of their own, posting conspiracy theories all over the internet. The same goes for other programmes. Steven Avery’s defence lawyers Jerry Buting and Dean Strang say, “There are people all over the world who are really picking this case apart now. Maybe someone who saw something or has kept a secret for 10 years will come forward. And judges read online news sources just like everybody else.” While potentially invasive, this is, then, a democratisation of the criminal justice system. But will that mean fewer Steven Averys in future, or more? Right now, it feels like the world is united in Avery’s defence, but Making of a Murderer seeks to demonstrate that Avery’s first false conviction was in part a result of prejudiced members of the public having undue influence over the state. If audiences are so swayed by these show’s subjective narratives, how truly democratic can this be?

One of the main themes Making a Murderer revisits again and again is the vulnerability of the Avery family. In Avery’s own words, “Poor people lose... poor people lose all the time.” “They didn’t dress like everybody else, they didn’t have education like everybody else... the Avery family didn’t fit in to the community,” explains one of Avery’s first lawyers. “Penny Beerntsen [the victim from Avery’s first conviction] was everything Stephen wasn’t.” Strang describes Steven Avery’s nephew Brendan – a key witness in his second conviction – as “a learning-disabled 16-year-old who’s not equipped to face the trouble in which he finds himself.” Here, then, are individuals who are easily taken advantage of, especially by authority figures with power, resources, and an agenda.

The journalist, too, is a figure of authority with power, resources, and an agenda. Why wouldn’t someone who feels that they have been wronged or humiliated want to believe that the journalist is the answer to their prayers, the person who could set the world to rights? In that case, what does it mean to take the lives of ordinary, vulnerable people, and turn them into entertainment for a potentially limitless audience? Could it rescue them, and others like them? Could it be another way for them to have their lives “taken away”?

Throughout the series, Brendan’s particular narrative is one of a young man who is not allowed to tell his own story for himself. He gives an initial statement saying he saw Steven for parts of that day, and nothing of note occurred. Investigators are suspicious, and bring him in for more questioning. “We know there’s some things you left out, and we know there’s some things that weren’t quite correct,” they insist. “We really need you to be honest this time.” An interview with a confessions expert is shown, who says “When they say to Brendan, ‘Be honest,’ what they sort of mean is... ‘Don’t tell us that, tell us something else.’” Brendan assents to leading questions from officers (Wiegert and Fassbender). When he is asked to give details himself, his suggestions are delivered like a student grasping for the plot details of a book they haven’t read, to an exasperated literature teacher.

Wiegert: Come on. Something with the head. Brendan? What else did you guys do? Come on.
Fassbender: What he made you do, Brendan. We know he made you do something else.
Wiegert: What was it? What was it?
Fassbender: We have the evidence, Brendan. We just need you to... to be honest with us.
Brendan: ... That he cut off her hair.
Wiegert: He cut off her hair? OK. What else?
Fassbender: What else was done to her head?
Brendan: ... That he punched her.
Wiegert: What else?
Fassbender: It’s extremely, extremely important you tell us this for us to believe you.
Wiegert: Come on, Brendan. What else?
Fassbender: We know. We just need you to tell us.
Brendan: That’s all I can remember.
Wiegert: All right, I’m just gonna come out and ask you. Who shot her in the head?
Brendan: He did.
Wiegert: Why didn’t you tell us that?
Brendan: ’Cause I couldn’t think of it.

He later tells his mother on the phone that he was “guessing”, explaining, “that’s what I do with my homework, too”. When Brendan tries to give a third statement contradicting this one (and confirming his first: that nothing of note happened), he is told “I want you to testify against Steven Avery and tell the truth. And this is how I can help you. But I can’t help you with those words that you wrote down. Those words, I can’t help you at all.” Brendan is not given ownership over his own narrative.

Arguably, by pointing this out, the producers of Making a Murderer are rescuing Brendan, offering him an alternative. Brendan looks better in their story, the one where he’s an impressionable young man who didn’t commit any violent crimes, rather than an impressionable young man who did. But it’s naive to assume that because it’s more positive, it’s any more his. Brendan is ill-equipped to defend himself to police, so does it follow that he is more equipped to handle the level of scrutiny that comes with being on an internationally-followed documentary series? We might hear Brendan’s voice and see his words on paper, but, arguably, he has even less power to assert himself here than he does in police custody.

The programme rightly asserts that it’s unethical to treat vulnerable young people like pliable evidence, moulding their stories to support your case. How far, in any sense, can Making a Murderer be considered guilty of doing the same?

Making a MurdererThe JinxSerial and the rest all play with using dramatic conventions to vitalise journalistic storytelling. That means that, to a degree, they turn their subjects into characters. Malcolm writes that perhaps the key difference between fictional characters and tangible, breathing humans is that the former “are drawn with much broader and blunter strokes, are much simpler, more generic (or, as they used to say, mythic) creatures than real people, and their preternatural vividness derives from their unambiguous fixity and consistency”. Real people, then, due to their nuance, their complexity, their ambiguity, and their capacity for change, make, for the most part, fairly dull comparisons. That means that when looking for their protagonist, true crime writers search for “people of a certain rare, exhibitionistic, self-fabulising nature, who have already done the work on themselves that the novelist does on his imaginary characters – who, in short, present themselves as ready-made literary figures.”

This is how we get Adnan the falsely imprisoned model minority, Robert Durst the bitter little rich boy with delusions of grandeur, and Steven Avery the everyman trampled by the system: twice.

When people become characters, objectivity is sidelined, and subjectivity rules. This is what allowed audience members to pronounce themselves not #TeamEdward or #TeamJacob, but #TeamAdnan on social media, or to see Avery’s defence team as more morally unblemished than Atticus Finch. It’s what caused someone convincingly purporting to be Hae Min Lee’s brother on Reddit to insist “TO ME ITS REAL LIFE. To you listeners, its [sic] another murder mystery, crime drama, another episode of CSI. You weren’t there to see your mom crying every night [...] I pray that you don’t have to go through what we went through and have your story blasted to 5mil listeners.” It’s what caused an outcry at the end of Serial’s first season when it failed to offer a crime drama-style closing revelation: even journalists like Mike Pesca on the Slate metapodcast, were frustrated. “Don’t let this,” he said, “wind up being a contemplation on the nature of truth.” And it’s what convinces people so utterly that their own take on each story is the right one.

In Making a Murderer, Dean Strang states, “Most of what ails our criminal justice system lies in unwarranted certitude on the part of police officers and prosecutors and defence lawyers and judges and jurors that they are getting it right. That they are simply right. Just a tragic lack of humility in everyone who participates in our criminal justice system.” Arguably, these programmes are extending the problem to those who don’t participate at all.

I wish I could handle these questions with Janet Malcolm’s fire and certainty, and insist that “every journalist who is not too stupid or too full of himself to notice what is going on knows that what he does is morally indefensible”, that these programmes have only “deepened my consciousness of the canker that lies at the heart of the rose of journalism”. Despite myself, I’m glad that The Jinx was made, not just because I devoured it, but because I think Robert Durst probably did it, and I’m glad he was arrested. If he is found guilty, shouldn’t we be grateful? I’m glad that Making a Murderer was made too, because I think law enforcement needs to be more intensely scrutinised, and whether the framing narrative proves to be true or not, the programme reveals the officers at its core to be, at the very least, worryingly incompetent.

I still believe that true crime can be sceptical, revealing, and challenging in way that is productive, not just titillating. But as with any artistic genre, it is doomed to remain subjective and impressionistic, and can be inaccurate and misleading. Audiences therefore have a responsibility to treat every new story as an artefact to be examined, analysed, and interrogated from a number of angles. It cannot be allowed to speak for itself.

Now listen to Anna discussing this on the NS pop culture podcast:

Anna Leszkiewicz is the New Statesman's deputy culture editor.

Samuel Beckett in Paris, 1960. Credit: OZKOK/SIPA/REX
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The poets’ home: how one small, heroic publisher shaped modern poetry

Founded in 1967, the pioneering Enitharmon Press established a new poetry world.

Some books make little impression, others earn our respect. And others again make us greedy not just to read but to own them and return to them time and again. Enitharmon’s aptly titled The Heart’s Granary belongs to this last group. Beautifully produced, and with “poetry and prose from 50 years of Enitharmon Press” bursting the seams of its 380-odd pages, it’s an anthology designed not to prove a theory or establish a canon, but to celebrate the work of one of our most remarkable small publishers.

Enitharmon is well-known for its wide-ranging poetry list, but there’s plenty of prose here too. I particularly enjoyed this section of The Heart’s Granary, a tight-focused, characterful set of extracts from, among others, Sebastian Barry, Edward Thomas and Edmund White. There’s also extraordinary artwork. Alongside his literary list, Stephen Stuart-Smith, Enitharmon’s editor for the last 30 years, has run Enitharmon Editions, publishing many of the major names in postwar British art. Peter Blake, Gilbert & George, David Hockney, RB Kitaj and Paula Rego have all worked with him, and are represented in here alongside recouped treasures from David Jones and Gwen Raverat. Also among the colour plates are stunning cover designs from the press’s half century.

So this book is an unusually beautiful object. But its beauty shouldn’t detract from its seriousness. Enitharmon was among the crop of independent poetry publishers that sprang up in the 1960s and 1970s. Poetry was then passing through one of its phases of heightened popularity – it was the era of the Liverpool poets, and of 1965’s International Poetry Incarnation gala at the Albert Hall – just as trade publishers began to trim their lists. Together with Anvil (also founded in 1968), Carcanet (founded a year later), Peterloo (founded in 1972) and Bloodaxe (founded in 1978), Enitharmon established a new poetry world, in which some of the best writing from home and abroad appeared thanks to the editorial flair of a handful of visionary individuals.

Editors like Enitharmon’s founder Alan Clodd, who ran the press for 20 years, and his gifted successor Stuart-Smith, act as both acute literary minds and as entrepreneurs. They present readers with established giants while also mentoring home-grown talent. Early, Enitharmon published Federico García Lorca, Jorge Luis Borges and David Gascoyne; as well as much from Kathleen Raine, who had encouraged the press’s foundation. The list has remained markedly cosmopolitan. This tendency for independent publishers to brave the commercial risks associated with translation means that they become the go-to lists for adventurous readers.

But Enitharmon has also supported an exceptional number of important British and Irish poets at all stages in their careers. To browse The Heart’s Granary is to realise again what a mighty body of work, solo and collective, 50 years of the press represents. Here are Dannie Abse, Fred D’Aguiar, Simon Armitage, Ronald Blythe, Alan Brownjohn, Frances Cornford, C Day Lewis, Douglas Dunn, Ursula Fanthorpe, Thom Gunn, David Harsent, Lee Harwood, Geoffrey Hill, Ted Hughes, Frances Horovitz, Michael Longley, John Montague, Paul Muldoon, Pascale Petit, Robin Robertson, Benjamin Zephaniah… not to mention four Nobel laureates: Beckett, Heaney, Pinter and Tranströmer. Even this roll-call of “headliners” – just a small proportion of the poets Enitharmon has published down the years – gives a sense of the tremendous range of work the press has nurtured.

Opening up such a broad church might risk diluting the publishing vision. How can, say, Geoffrey Hill and Benjamin Zephaniah be juxtaposed coherently? I suspect the answer lies partly in Stuart-Smith’s acute editorial sensibility, and partly in his poets’ shared shamelessness of artistic purpose. Enitharmon’s house style traditionally stands against hedging or fakery, and for sincerity in whatever poetic form. Open this book at random and, “Bury me up to my neck/in the sands of my father’s desert,” Pascale Petit’s incendiary “The Burning” declares, while in “Irting Valley” Frances Horovitz questions “can a star be lost/or a stone?”, and Isaac Rosenberg, in “August 1914”, asks “What in our lives is burnt/In the fire of this?/The heart’s dear granary?/The much we shall miss?”

Rosenberg’s is of course the anthology’s title poem. For, like Anvil and Peterloo, Enitharmon’s literary list was dealt a mortal blow when the Arts Council cut off funding. The work collected richly here adds up to a joyous read that should be on everyone’s bedside table. But it also reminds us that in certain fields – education, faith, philosophy, poetry – the market is not always right, and neither is cultural fashion. It reminds us, that’s to say, of “The much we shall miss” if every Enitharmon has to close, and the lights of writing, thinking and art go out. 

The Heart’s Granary: Poetry and Prose from Fifty Years of Enitharmon Press
Compiled by Lawrence Sail
Enitharmon Press, 384pp, £30

Fiona Sampson’s books include “In Search of Mary Shelley” (Profile)

This article first appeared in the 12 April 2018 issue of the New Statesman, Syria’s world war