Kary:

This is the Crime Story Podcast with Kary Antholis where we have conversations about how and why narratives of crime and justice are told.

Today’s podcast is part 2 of a 2-Part conversation with Moira Demos and Laura Ricciardi, the makers of the breakout True Crime series Making a Murderer.

During this part of our conversation, we discussed Moira’s and Laura’s making a deal with Netflix to broadcast Making a Murderer as their first documentary series, the experience of watching the series become a cultural phenomenon, the process of making season two of the series and where things stand in the cases of Steven Avery and Brendan Dassey.

One final note before we begin.  Apologies for the sniffles and congested tone of my voice during this interview. I was fighting a pretty significant head cold that day. And with that said, here is Part 2 of our conversation.

Kary:

Okay, how did Netflix happen? 

Moira:

So we were applying to grants and spending a lot of time doing that. Again, they’re all for features. There was a point at which we decided to not spend our time cutting samples and writing proposals but to just keep making it. By the time we approached Netflix, we had rough cuts of the first three episodes, and we had sketches of Episodes 4 and 5. One of our goals was not to be asked, “Can you do this as a feature?” We wanted to give a sense of where it was going and how much more there was than what you saw in the first bit.

Moira:

We also had a 20-page outline of the entire series, so every episode was five acts. We work in five-act structure, so it was an outline of pretty much the series you see, small shifts in once we edited it.

Laura:

Yeah, and I would say, earlier you asked about influences. I think possibly the only example but certainly the best example we could point to was The Staircase, which at that time we knew to be an eight-part 45-minutes each, so eight times 45, story that aired on the Sundance Channel. It was a single case that was arced out over the episodes.

Laura:

I don’t know if you’re familiar with it, but Michael Petersen was a writer and a journalist living in Durham, North Carolina, well-off, and he was accused of murdering his wife and was… The filmmakers, it was a French filmmaking team, and they had incredible access to the defense and to Michael Petersen. He was out on bail, so they were in his home, which was the alleged crime scene. They had tremendous access. Anyway, so when we were thinking about this as a series, we were influenced by The Staircase as well and just-

Moira:

We certainly mentioned it in terms of trying to… because nobody was doing series in this period, in the ’07 to ’15 era, there really weren’t any documentary series, and so trying to point to the one that had been done in recent history to show audiences would be interested.

Laura:

Right. In fact, we were being told that it was a thing of the past, like no one would be interested in that now, The first time we met with Netflix, fortunately, they told us they wanted it and that they would make us a proposal, and we were thrilled, but it took another year to actually paper t became the first original documentary series for Netflix.

Kary

Moira:

Yeah, that was part of why it took the year, because the original docs didn’t exist when we first met with them, and then they did, so then we had to start over, yeah.

Kary:

Then it came out, and it became a sensation. Over that holiday period everybody binged it. Tell us about that experience.

Moira:

It was pretty surreal. The first thing that happened was the experience of finishing the series. What was so rewarding was actually, when we finished and then we were going to have to go out and do PR and hadn’t spoken publicly or talked about the work, we’d just been doing the work, we went back and looked at previous sales pitches and sales material, and it was incredibly rewarding to read a two-page thing about the series and realize this is describing the thing that we just made six years later. We really felt like we had made exactly the thing we had been trying to make and had finally gotten the money so that we could quit our day jobs and make it, so that was amazing, and that was really only a few days before it came out. It was in December.

Moira:

Then it came out on December 18th, which we credit Netflix with the genius of launching it right, the Friday before the holiday week. We’d had a big launch party, so our families were in town and here for the holidays, and so we were just sort of tracking things on social media, and it was pretty insane that so many people were responding to it and getting involved and caring about different issues. That had always been our goal, was to start a dialogue about this stuff.

Kary:

wo questions The conversation with Netflix about doing a Season 2 and the response from Manitowoc County, particularly about the impact of the film and the pressure that that put them under.

Laura:

irst we had to think about would we want to continue telling the story and what our criteria were, and a big part of that was, if we’re going to continue following these same subjects, will we be offering something new? We don’t want to just, we don’t want to retread ground. What we realized was, especially after sort of exploratory calls with Laura Nirider and Steve Drizin, who were representing Brendan, and Kathleen Zellner, who represents Steven, that what we would be documenting would be the post-conviction phase.

Laura:

So, we started to think about, we had a central dramatic question for the first season. Then we had a central dramatic question for the second season. It was basically like, okay, Steven Avery and Brendan Dassey are serving life in prison. Will they be able to overturn their convictions, regain their freedom, and regain their reputations essentially.

Laura:

We answered that question affirmatively yes, there would be something new, and we also realized that the post-conviction phase is such a lesser known phase to most people, so we thought that could be sort of cool to show. We wanted to make sure that we would have access to key players. Once we learned that Laura and Steve were on board, and Kathleen was on board, and of course the Averys themselves, we were really excited and thought, we’re going to go back out to all the people we went to before. We’ll reach out to the Halbachs. We’ll reach out to Ken Kratz. We’ll reach out to Len Kachinsky, all of these people, and if they all happen to turn us down, we think that there will be public events or enough happening that there still could be a story.

Kary:

This is after it aired or-

Laura:

Yeah. As Moira said, it aired in December. We did some traveling with it and actually took a vacation in, I don’t know, February or March, started having initial calls with our subjects in the spring, and then we were back in production in June.

Kary:

hat were the challenges of now having money but, a lot more money but a lot less time to tell the story?

Moira:

Yeah, it was an entirely different process. We had to learn a lot of new things. At first, it seemed great, we’d have support from the start, we could hire crews, we could hire post-production staff. It seems great. It’s funny. Both seasons happened very quickly. There was really no pre-production for either one. I think we went in and pitched to the officials, part two pitch to Netflix, and within a week it was official, and within the next week we were out there shooting. It was a quick staff-up. We opened the post offices here in LA, so we’re commuting back and forth. Now we don’t have time, so we’re not moving there, and we have the money to fly back and forth, but it’s very hard to be there for everything when you’re in LA, and it’s all happening in Chicago and Manitowoc, so that was a whole thing.

Moira:

Then we had a very open-ended arrangement with Netflix for Part 2, because nobody knew what was going to happen. They didn’t have the experience of just diving in without knowing where things are going to come out the way we had in Part 1, so they had to kind of learn that. We didn’t know would we have just one episode and then a few years later another episode or what was going to happen. Things started happening very quickly, so t you start building scenes, and you start arcing out episodes, but then more stuff that’s happening, and suddenly scenes are moving around, and you’re restructuring. Because I mentioned every episode is five acts, but then within the season, we’re really sort of working in three-act structure, so the seven episodes, the midpoint is in a different place than if it’s in ten episodes. There’s a lot of re-editing 

Kary:

Talk to us about starting the season with that cold opening. Then we’ll go back and talk about the challenges of putting the season together, but it feels like you’re confronting head on the controversy and the kind of out-of-control feeding frenzy that the first series, the first season, provoked.

Laura:

Well, when we’re working, we’re always thinking about the jobs, the job of a scene. We were thinking about, we have cold opens for all of our episodes, and we thought for 201, the first episode of Season 2, one of the jobs should be, in a way, to bridge the gap from the end of Season 1 to the beginning of Season 2. One of the major things that happened was that there were news reports that this series was coming, and that it was going to be a series about Wisconsin’s most notorious killer, so we wanted to capture… It doesn’t last very long but wanted to try help our audience understand what the dominant narrative was in Wisconsin at the time. So, before Season 2 came out, everybody thought the jury’s spoken-

Moira:

Season 1.

Laura:

Oh, yeah… everybody thought, the jury’s spoken, law enforcement was right all the time. This guy did do it, and it’s good that he’s put away. Let sleeping dogs lie, basically. But then we also thought we need to establish the context for Season 2. As you said, it was this dialogue that was happening, and it was playing out very publicly. Everybody had an opportunity to speak in the press. Dean and Jerry, Ken Kratz, ultimately Kathleen Zellner, so we really wanted to set the stage just in the hook for Season 2.

Moira:

Yeah, it was very clear as we went back to Manitowoc and went back to the Avery Salvage Yard, that the world had changed, and that we couldn’t avoid that it had changed, because the series had come out. We couldn’t pretend that wasn’t true. People would mention that in interviews of like, “Well, when the series… When Making a Murderer came out, or when I saw Making a Murderer,” or whatever, so it was becoming very reflective, but it was, as Laura said, we’re all about context and cause and effect. To really capture the multifaceted responses and the sort of frenzy of it all and how that had then impacted people’s lives.

Moira:

You’ll see in the first few scenes of 201 people now getting what we call sort of love mail, boxes of letters of support, whereas in Season 1, it was hate mail. It does have an impact on the world, this other world.

Kary:

When you went back to report the second season, how had Season 1 impacted Manitowoc County? We know how it impacted the rest of the world. I would imagine the vast majority of people felt like Steven and Brendan had been, in the case of Brendan coerced into the confession, in the case of Steven, set up for some potentially nefarious reasons, but what was the impact on Manitowoc County of the documentary?

Laura:

Well, it’s interesting, because I think we were concerned that it might have just repelled most people in the community, and we were hoping that wouldn’t be the case, because we spent a significant amount of time there. We felt like in a way like a part of the community or at least tried to do justice to the community in the first season and really felt like what we were doing with the first season was holding a mirror up.

Laura:

One of the things we didn’t talk about tonight, and I was saying earlier one of the reasons we chose Steven’s story was his unique status as a DNA exonerated charge in a new crime, but the other thing was, we thought that it would allow for an exploration of the system, because it was 2005, 13 years into DNA, and we had been hearing there have been these amazing scientific advances and legislative reforms, and these mistakes that have been happening in the criminal justice system for so long are a thing of the past. Part of what we wanted to do was test that theory.

Laura:

We really felt like we didn’t know what the community’s response would be. We had hoped that in some way, maybe through some of the PR we were doing, or whatever we could have an opportunity to describe our process and how organic we felt it was and what our intentions were, and then interestingly, we were really pleasantly surprised, because we knew there were people who were offended by it or didn’t appreciate it or thought it brought all this unwanted attention to Manitowoc, but then there were other people who were grateful and thought, “I had no idea. I didn’t know that certain things went on,” or, “I didn’t know the historical context for the Halbach case,” or whatever it was. We felt a lot better understanding that there was sort of a range of responses to the season.

Kary:

Tell us about the process by which you became aware that you would have enough material to do another ten-episode season, and in the context of talking about that, talk about when Kathleen Zellner came into the picture and how she became the driver of the second season.

Laura:

You can talk about Kathleen.

Moira:

We had secured the participation of Kathleen before we went forward with Part 2. She seemed crucial to it, because, as we had in Part 1, you know you’re not going to have access to Steven, and so who is enacting his want, like his attorney. So, if you don’t have access to his attorney either, what crazy solution are you going to find to tell his story. We knew we needed to get her participation if it was going to really work, so that was before we even started.

Kary:

Could you talk a bit about that? Was there compensation for her? How did all that work?

Laura:

We don’t pay our subjects, and I had initial calls with Kathleen. We learned that she’d been in another documentary called Dream/killer, and it was about a case she had, Ryan Ferguson’s case. We watched the documentary. We like to do research as much as we can, and so we did that, spoke to her. Interestingly, we found out from her that other outlets were interested in picking up this story and telling it and wanted to get access to her.

Laura:

I’d actually first learned about Kathleen taking the case. There was a feature on her in Newsweek, and I remember reading it. She sort of jumped off the page at me. I thought, she just sounds amazing in terms of her determination, her work ethic, her success in the system, and I thought she’d make a wonderful character. She’s so competitive, and she clearly wants to win. I was actually jealous when I read the Newsweek feature, because I thought, someone’s interviewing her, and I want to be doing that. We reached out to her and just left it up to her. We knew she had other offers, and we said, “We would like to film with you.”

Kary:

How does she finance her work?

Laura:

most of her clients, at least on the post-conviction side, so she has a very vibrant civil practice, so there’s that. When she takes on her post-conviction clients, I imagine most of them are indigent, and so she essentially takes them on pro bono, but then if she’s successful, which she has been, she represents them in a civil rights lawsuit, like the one Steven had going in the Season 1, and she’s just won, she’s won millions and millions of dollars for her exonerees, and that’s just apart from even the civil practice she has.

Kary:

There’s two different cases that we’re following in Season 2. There’s the Brendan Dassey case, and then there’s the Steven Avery case. Talk to us about the balance in following those two stories and the challenges in trying to balance those two stories.

Moira:

That’s definitely one of the main… It was the challenge too in Part 1 but especially in Part 2. Going in, we came back to Brendan’s story really where we had left it off in Part 1. His lawyers had taken his case out of the Wisconsin court system and into the Federal court system and filed a habeas petition, and they were just going to be waiting. There was a little bit of a question of, that’s not very cinematic, what’s going to happen there. That was certainly an open question of how are we going to capture that, but one of the things we did want to capture in Part 2 is the incredible amount of time that passes and how slow things are and how much waiting there is. We saw some potential in that storyline.

Moira:

Then from those early conversations with Kathleen that we had, she had told us that she was going to be filing what she was calling a post-conviction petition and that she was investigating the case and would put all of her new evidence in and file this petition, so we thought, well, that will be an arc. Whether that be the end of the first episode or the end of a second episode or, but we thought that would be what we were following with her, and we’d be trying to reach out to the other side, the Halbachs, spending time with the Averys and the Dasseys. Then unbeknownst to us at that time, but very quickly in the summer of 2016, we started in June, and by August 2016 there was a ruling in Brendan’s case, and suddenly his storyline started to eclipse Steven’s, because Kathleen’s just doing her investigation and major news is happening in Brendan’s story.

Moira:

That was part of how the season grew and kept growing. You asked earlier when did we know we had ten episodes, and probably not until the spring of ’18. It was four, and then it was five, and then it was six, and then it was seven, yeah.

Laura:

What we’re documenting here is the most active characters trying to win another day in court. Kathleen is trying to convince a circuit court judge that Steven is entitled to an evidentiary hearing or a new trial, if not to be released, and Laura and Steve are trying to get him, Brendan, a day in Federal court. None of that is guaranteed. I mean, Moira used the word “cinematic.”We were just uncertain all the time. We didn’t know how much our characters would be interacting with one another, how much their storylines would intersect, and we certainly had no idea how dynamic Brendan’s story would be, how dynamic his experiences would be.

Laura:

One of the challenges for us from the beginning has been, we refer to it as putting a face on the antagonist. At least in Season 1, there were court events and press conferences. It was really important to us to even if people in law enforcement wouldn’t sit down with us, Robert Hermann did briefly, would only allow us to talk about certain things, but anyway, we at least in Season 1 could include the point of view of the Halbachs or Ken Kratz because of the press conferences and the court dates. In Season 2 we had no idea if we’ll ever even get into court, if anyone will give a press conference.

Laura:

With Kathleen, part of the pitch, I’ll call it, to her was we really are interested in documenting your process. What does it look like for someone who’s advocating for someone serving life in prison to do what you do, to try to get them back into court or try to get them released outright. The thing about Federal courts too is we knew if there were any proceedings cameras would not be allowed in, so again we had to embrace our limitations and figure out what to do.

Commercial break for crimestory.com.

Kary:

Much of Season 2, focuses on Brendan Dassey’s post-conviction attorneys appealing the use of the conviction through various stages of the court system, initially, in state court and then going to Federal court. They win at two layers of… Well, at the first layer of Federal court, Federal District Court, and then they win at the appellate level in a three-judge panel. Then the prosecution succeeds in getting the entire appellate court to rehear it What we see and hear in the course of the film is we see drawings of the judges hearing that, and then we hear audio tape of that Q&A between the attorneys and the judges.

Kary:

On the other side, what we see is Kathleen Zellner doing a series of investigations of the various strands of evidence that were used to convict Steven Avery, and we also see her exploring alternative theories to how this could happen. What we become aware of over the course of the season is something called the Brady Rule, which is evidence that the prosecutors had, which they by law have to share with the accused, and which a Brady violation is not doing that, not sharing it. There are multiple pieces of evidence that the prosecution never shared with the defense. I think it’s probably worth exploring a few of those things and then kind of bringing us up to speed on where we are now in the Avery and Dassey cases.

Moira:

I think you did a great job summarizing. One of our jobs, one of the main jobs in our storytelling is also to educate the viewer, because if you’re lost as a viewer, we’re lost as storytellers. There’s a lot of graphics in Part 2, because, as you mentioned, so Brendan’s in the Federal court system, and Steven is still in the state court system, and they function in very different ways. They’re looking at very different issues. Even though there’s one murder here, these two sets of lawyers are employing very different strategies. It can be fascinating to watch.

Moira:

Brendan’s team, they talk about, it’s going to take a legal miracle. They’re not exuding confidence that they’re going to win, and yet what you see them do in the first couple episodes is win and then win again, so things are going great for them despite the odds, whereas Kathleen is incredibly confident, and yet it can seem like she’s taking a long time or things aren’t going her way, but there are points in the story where those arcs cross each other.

Moira:

What you do see with Kathleen, because she is incredibly thorough, that she really tries to address every piece of evidence that was used to convict Steven Avery, so whether that’s about times where you’re flashing back to something you saw in Season 1 and learning a lot more about it, because neither the prosecution nor the defense was actually getting at the truth of the matter in court, or sometimes she’s investigating something that didn’t seem like a major issue and wasn’t part of Part 1, so you’re seeing new material from court or from the interrogation.

Moira:

In a lot of ways, because what post-conviction, just by definition, post-conviction, the lawyers are looking back at what happened, what led to the conviction, arguing that it was wrong in some way. So, not only is the viewer learning about post-conviction, but they’re also actually learning a lot about what they saw in Part 1, either things that they didn’t, not to any fault of their own, but they didn’t put together, about what was going on, or going deeper into something and understanding it at a much deeper level.

Kary:

The key pieces of evidence that Kathleen Zellner uncovers or is ultimately given are, there’s a trove of digital evidence that Brendan Dassey’s brother had of pornography, child pornography, violent pornography, that was never shared with the defense team. There was also evidence, human bone evidence, that emerged that was in a place on an adjacent property to where the prosecution said Steven had committed the murder. What were the other Brady Rule violations?

Laura:

Oh, there are a number. I think Kathleen is up to at least six at this point.

Kary:

What happens is we’re taken through each of these pieces of evidence, and then on the Brendan Dassey side of things, ultimately, the seven-member court did, overturns the decision of the three-person court of appeals, and then the Supreme Court of the United States refuses to hear the case. All of Brendan’s appeals seem to have been exhausted. There remains a flicker of hope in Steven’s case, but what we also experience is that there’s this same appellate judge in the State of Wisconsin who has conflict of interest, but keeps denying Steven’s appeals. It gets sent up to a higher level of the state court system and then comes back to her, and she keeps denying it, so it seems like a vicious cycle.

Kary:

What is your sense post the airing of Season 2 of what the prospects are for Steven and Brendan’s ultimate release from prison?

Laura:

I’ll start with Brendan, because, as you said, it seems for now that there’s nowhere for him to go in the Federal system, because it did go, his case did go all the way to the US Supreme Court, and the US Supreme Court denied review. 

Moira:

But just on that one issue.

Laura: 

Yeah, so what was being litigated at the time was whether or not the confession he gave to the officers was voluntary, did he give it of his own free will. Of course Laura and Steve’s argument was that it was coerced and that was a violation of his constitutional rights.

Laura:

They had also made a claim of what they call ineffective assistance of counsel, arguing that Len Kachinsky breached his duty of loyalty to Brendan, that Brendan would have essentially been better off not even having an attorney, and that issue did not go very far. Brendan is sitting in prison today serving a life sentence. He’s eligible for parole, first eligible for parole, in 2048. I think he’ll be in his late fifties by then. I think I’ve heard at least that his best hope is if Kathleen were to get a break in the case that would somehow help his case.

Moira:

Yeah, because he could start over in state court with new evidence. He has that right. He’s only exhausted the entire chain on the issues that they were raising, but if they found new evidence, and right now Kathleen’s the one looking for new evidence, so she would be the one that might find something.

Laura:

Brendan’s confession can no longer be attacked as having been involuntary. That issue is dead. He would need lawyers to do what Kathleen’s doing essentially, try to develop new evidence. Kathleen’s, she’s developing her case on three different grounds. There’s so-called newly discovered evidence, which is evidence that was not known to the court or the jury at the time. Because essentially what the post-conviction lawyer is trying to do is trying to get back into court and say, “Look, Your Honor, you’ve never seen the complete picture,” or, “I have a fuller picture to present to you, and it’s material. It’s important, and you need to look at this new evidence.”

Laura:

She has tried to dismantle the state’s case by trying to take apart the nine pieces, I guess it’s nine pieces of physical evidence, including the hood latch, which was something we wanted to address in the hook. But the other thing that she’s doing, and she tells us flat out, she’s like, “Legally I don’t have to do this but practically I know I need to do this. I need to try to develop what’s called a third-party theory of liability, meaning I have to try to figure out who actually killed Teresa Halbach, and if I can do that and get back into court, then I can flip this case.”

Laura:

One of the threads in her through line is her trying to figure out who, if it wasn’t Steven and wasn’t Brendan, then who was it? She does develop a third-party theory, and she has suspects, and she files that with the court. We also have to be very careful, because you want to be careful of potential defamation claims and that sort of thing, that what we’re documenting and what we’re putting out there is actually part of the public record, because she does name names. The standard she’s trying to meet is she’s arguing to the court that this person or this person or this person could have done it, and so that’s a big part of her case as well.

Kary:

Two questions before I let our students ask some. At the tail end of Season 2, the fact that two members of Brendan Dassey’s family are suspected by Kathleen Zellner of having been involved in the murder, and we see a bit of the impact of that, the news of her suspicions, on Brendan’s family. What has been the residual impact of that on the Dassey family?

Moira:

That in itself was, that’s a tricky thing to navigate for us as filmmakers, because we’ve been filming with this family for 13 years, and they know us and trust us, and now this is happening, and are we going to include it in the series. So, there were a lot of just conversations of, of course we have to include this. You know we’re not taking any sides. We never take sides, but we have to document what’s happening. They already knew that this was what Kathleen was doing, and they knew we were following Kathleen’s process. But it’s a very strained time in the family, and that has a ripple effect to our ability to access people as well.

Moira:

From what we hear, ever since Kathleen filed the motions that included those names, things understandably have been very hard for those individuals, and it has done a lot to sort of tear at the family, but it’s also a family that has been through so much of this. You see it in this episode with Barb finding out about Brendan and telling Steven to rot in hell, but then they have a way of hashing it out and coming back to family. It’s a complicated question.

Kary:

Since Season 2 has come out, has there been anybody in the Teresa Halbach camp, in their family, who has begun to question whether justice was really done for her?

Moira:

Not to our knowledge, but quite possibly, but they certainly haven’t reached out to us.

Laura:

Yeah. I will say for Season 2, we were thrilled that one of Teresa’s college friends agreed to participate, because if we don’t have the material, we can’t include it in the series, and so Chris Nerat graciously sat down with us. I thought he gave a great interview, but, like Moira said, we haven’t spoken to the Halbachs about the substance of anything.

Kary:

Last question for both of you. We ask this of each of our guests. What is the best piece of advice you’ve ever received as a filmmaker, as an artist, or what piece of advice would you like to share with the class as they embark on careers as storytellers?

Laura:

I think you already mentioned one great piece of advice from Maureen, which was, embrace your limitations, because you can get really caught up in the camera you don’t have and the crew you don’t have and all of that stuff. But you probably have something else that’s worth a lot more than the camera and the crew. Definitely, that was a good piece of advice.

Moira:

What I would encourage all of you is if you’re passionate about something and you want to make it, if you don’t see it out there, it’s probably proof that the world needs it. Don’t feel like you have to see a model of what it is you want to do. If you want to do it, just do it.

Kary:

Okay. Please join me in thanking Laura and Moira. Thank you, guys. That was fantastic.

Kary.