That’s Entertainment

I watch Netflix. But then, when I watch their dramatizations, and enjoy them as I do, I realize one thing. They’re not real. They’re not documentaries. They’re entertainment. They’re shows written by screenwriters whose dialogue is made up, played by actors who know nothing about their characters, presenting stories that reflect whatever the producers and directors want them to present. They can be great TV, but they’re still just entertainment.

Not everybody gets this.

Before “Making a Murderer” aired, a Google search of his name “would have revealed two nondescript news articles about routine local crime,” he alleges in a lawsuit. Now it turns up hundreds of thousands. He and his family have received violent threats that “fill the capacity of 28 compact discs,” the lawsuit claims. (Mr. Colborn, who retired in 2018, declined an interview request.)

I remember first learning about “Making a Murderer,” and the arguments raised about what went wrong. It was so banal as to be laughable. “That’s what every defendant says,” I explained to a reporter, for whom the passionate denials were new and shiny. The first time you hear them, they appear novel, perhaps even compelling.

Not so much the thousandth time, after you’ve wasted far too many hours following claims of innocence only to see them end in conclusive guilt. And when you go visit the defendant and let him know how much fun you had chasing down his lies, he gives you that sheepish look and says, “Well, I had to try, right?”

Does Netflix know this?

Netflix has made a major push into original documentaries. Lisa Nishimura, who oversees the effort, has said the company’s objective is to “create a cultural moment” and “allow people to enter a distinct experience to help us try to better understand the world around us.”

Yeah, that’s a load of hogwash. Netflix wants to tell its service, and what they claim to be original documentaries are nothing of the sort. And when challenged, such as the defamation suit by Linda Fairstein against Netflix and Ava Duvernay, they hide behind “dramatic license” and the claim that nobody actually believes that their documentaries are, you know, true. Who would be so stupid to believe their documentaries were factual when they’re trying to “create a cultural moment”? While it’s unclear what that means, I surmise it means get unduly passionate people to pay them money.

After the success of “Making a Murderer,” I received a flurry of emails and telephone calls from reporters and TV folks who pressed me to give them other cases from which they could manufacture compelling stories of innocence and injustice. I demurred. The problem wasn’t that I didn’t know of such stories, but that they weren’t so simplistic, one-sided and nefarious as they wanted them to be, and I was disinclined to participate in what would basically be a lie. If they wanted to create a sham story, that was on them. I chose not to be a party to it.

“Making a Murderer” is particularly egregious, but it’s part of a broader campaign by Netflix against police and in support of progressive causes. Former prosecutor Linda Fairstein described in these pages last year how another true-crime series, “When They See Us,” was “so full of distortions and falsehoods as to be an outright fabrication.” Texas Ranger Bob Prince has also complained about significant omissions and distortions in the 2019 series “The Confessions Killer.” The Netflix cultural moments always tilt in the same political direction.

For years, criminal defense lawyers complained about flagrantly biased reporting of their cases, ignoring issues and evidence and, almost always, regurgitating the prosecution or cop story wholesale. One of my favorites was in the Bernie Goetz case, where my client, Troy Canty, was invariably described as possessing a “sharpened screwdriver.” It was just a screwdriver, like any other screwdriver, but no matter how many times I explained this, the word “sharpened” always preceded screwdriver.

Do you enjoy Netflix too? Great. Just remember that it’s about fun stories, produced to make you want to pay their monthly tariff and otherwise fictional. Remember that their writers have no clue what they’re writing about, the dialogue never happened, the scenes are fantasies and the pro- and antagonist are there to get you to watch and gain some viral traction given pop sensibilities of their target audience.

For Mr. Colborn to prevail in court, he would likely have to meet the high standard the Supreme Court has established for defamation plaintiffs who are public figures or officials. Yet it’s clear to anyone who’s read the trial transcripts and court records that “Making a Murderer” is far from balanced. In reflecting a “cultural moment” of skepticism and hostility toward law enforcement, it ignores evidence that exculpates the police and supports the convictions of Messrs. Avery and Dassey. Sometimes cops are the ones who get framed.

On the one hand, there is a certain satisfaction to see the cop side get burned the way the defense side had been for so long. How cool is it that suddenly we’re the good guys, our clients are the ones maligned and cops are not to be believed? But on the other hand, it was all a bunch of lies before, when it was our butts getting burned, and it’s still a bunch of lies now that it’s the cops getting framed. You can applaud the swing of the pendulum, but it’s still a bunch of lies.

In a March 2020 legal filing, Netflix argued that any omissions were “constitutionally protected editing decisions the filmmakers had to make in order to condense the material into a manageable time frame.” The document says Mr. Tyson’s testimony was “not materially changed” in the documentary. It also says the documentary merely reports on, but does not endorse, the defense lawyers’ theory that Mr. Avery was framed.

Enjoy Netflix. I do. But don’t believe, because it’s not real.