System Failure: How Criminal Justice Flaws Are Letting Us All Down

Westchester-based filmmaker Joe Berlinger investigates issues of criminal justice for The System, an eight-part series on Al Jazeera America.

When we last met with filmmaker Joe Berlinger, a Northern Westchester resident and Chappaqua native, he’d just finished Crude, a documentary about a lawsuit filed against Chevron on behalf of the indigenous people of Ecuador, who were suffering health consequences from the company’s pollution. Since then, he hasn’t stopped shining his documentary light on behalf of the underrepresented. His three-film series Paradise Lost—about three teenagers, dubbed the West Memphis Three, who were wrongfully convicted of and imprisoned for murdering three young boys in Arkansas—had to change unexpectedly when, as Berlinger was putting finishing touches on the third film, he got the news that the State had accepted an Alford plea that let the West Memphis Three go free. (The Alford plea allowed them to maintain their innocence, but they had to admit that the prosecution probably could have proved the charge.) The resulting film, Paradise Lost 3: Purgatory—with its new ending—was nominated for an Academy Award. The Paradise Lost experience inspired Berlinger to make The System, an eight-part nonfiction television series that started airing on Al Jazeera America in May, which exposes various cracks in the criminal justice system, from false confessions, to faulty forensic evidence, to the efficacy of mandatory minimum sentencing. If that wasn’t enough, this summer Berlinger is also releasing Whitey: United States of America v. James J. Bulger, a documentary about Boston’s infamous crime figure. We caught up with the filmmaker to ask him about all of these projects.

The last time we spoke, Paradise Lost 3 hadn’t been finished. What was it like to see the West Memphis Three released from prison?

Oh, it was amazing. We make documentaries that we hope will change lives and have an impact, but you don’t often see that impact. And to have such a tangible result—that sticking with the story for almost two decades and three films actually was the catalyst for getting these guys out of prison—nothing could have been greater. That having been said, I don’t want the films to take the sole credit. It was an amazing confluence of things that spurred that action. Tens of thousands of people around the world just felt there was an injustice. Admittedly, the film was the catalyst—people got involved after seeing the films—but there was a tremendous effort put in by people from all walks of life.

The Alford plea means that they were set free, but they weren’t exonerated, right?

Unfortunately, the State of Arkansas, in a very cowardly fashion, made them plead guilty in this Alford plea situation, in which you maintain your innocence but, for legal purposes—even though they all felt this wasn’t the case—you acknowledge that the state had enough evidence to convict if it had gone to a retrial. And that’s all just gamesmanship on the part of the State of Arkansas to avoid any accountability for imprisoning three people wrongly for two decades. The going rate for someone being incarcerated incorrectly, the rule of thumb is that you get a million dollars a year. I think they were just looking to avoid a $54 million settlement. You have you ask yourself, if the State of Arkansas really believed that these were three blood-drinking, devil-worshipping teenage Satanists who sacrificed three eight-year-old boys to the devil, would they ever agree to this Alford plea and let them out of prison? The answer is, to me, obviously not. They were just looking to avoid accountability for prosecutorial misconduct.

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So, to the State of Arkansas, the case is closed. Are they going to investigate to find the real killer?

They’re not even looking. The State of Arkansas has no incentive. To look for the killer means they’ll have to change their position that the West Memphis Three are guilty. It’s sad—the families of the victims, most of whom have come to believe that the West Memphis Three are innocent, don’t have closure on who killed their children. 

What does this mean for the West Memphis Three?

All of us who care about this case are still fighting for exoneration—for their names to be fully cleared. I’ve traveled with Jason Baldwin of the West Memphis Three. His first trip out of the country was to a film festival in the Netherlands. And I took him to Berlin, because the film was being honored in Berlin. And every time we take him out of the country, it’s a rigmarole because certain countries don’t want to receive convicted killers. He wants to be a lawyer. He wants to help other people in his predicament. Unless things change, they won’t let him take the bar exam and become a lawyer because he’s a convicted killer. They have this sword of Damocles hanging over their heads. 

Is this what got you interested in doing The System?

Yes, exactly. The whole Paradise Lost experience was, for me, a wake-up call that wrongful convictions happen, that prosecutorial misconduct is real, and that it’s easier than you think for someone to be put away for something they didn’t do. I don’t want to universally point the finger and say the justice system is broken, because a lot of the times it works. But the bottom line is there are a lot of problems within our criminal justice system. I feel like it’s my mission as a filmmaker to shine a light on that, and to make sure the system is working, because, in my opinion, the most core American value we have, the thing that we hold most dear, the founding principle of this country, is our belief in our personal liberty. And a prosecutor has the unique power to take that liberty away. I just want to make sure it’s done fairly and appropriately.

Even so, the episodes of The System seem like they’re pretty even-handed.

I believe that you should treat the audience like a jury, let them hear both sides, and let them make up their own minds. If you are just being lectured to in a one-sided way, I think that’s a very passive experience. But if you’re in the audience, if you weigh the pros and cons of what you’re being told, when you come to your opinion—whatever opinion you come to—it’s a much more active experience, and therefore more persuasive. I think that’s one of the reasons that so many people responded to the first Paradise Lost movie. That film actually spent a lot of time trying to tell both sides of the story, and the truth rose to the top.

The episode that hits closest to home for us is the one about false confessions, which centers around Jeffrey Deskovic, who was convicted of a murder that happened in Peekskill before he was exonerated by DNA evidence.

I remember that case when it was unfolding; it was early in my career. It was interesting for me because I’ve traveled the globe making films and traveled the country looking into wrongful conviction cases, but it can happen in my backyard. I think it’s important for people, especially for your readers, to see these things can happen anywhere under the right circumstances. And we all get hurt by the wrongful convictions. Citizens of the county paid millions of dollars for this mistake. And it also meant that the wrong person wasn’t captured, and that person went on to kill a schoolteacher. There’s a heavy price to pay.

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Then, with Whitey, you shifted from wrongful convictions to someone who is definitely guilty.

I think the Whitey Bulger story, again, is a story about the integrity of our institutions. Bulger is a brutal, vicious killer who deserves to be behind bars. But there is a level of corruption within law enforcement and within institutions of justice that enabled him to happen. Here’s a guy who’s on the top of the Boston underworld for 25 years, and he’s not even charged with a misdemeanor. How does someone like this operate? Now, the official story is he was an FBI informant. Well, if that’s the case, we still need to know how an FBI informant is allowed to kill with impunity. Being an FBI informant isn’t supposed to give you a license to kill. But I think the film is controversial in that it challenges that conventional wisdom, because there’s evidence—now, I’m not saying he’s an informant, or not an informant; I don’t take a position—but I expose very troubling questions that suggest that he might not have been an informant after all. That it was Bulger paying off FBI agents to not be arrested. It was government officials using his name on indictments to bring down the mafia, which caused them to concoct the story that he was an informant, all the while knowing that he was still committing crimes. The FBI just decided that bringing down the mafia nationally was the objective, and in Boston they looked the other way at what the Irish criminals were doing because it advanced the cause of bringing down the mafia. Now, I don’t personally believe we should be empowering gangsters and criminals to run roughshod over a city even if it’s in the service of bringing down the mafia. There has to be integrity to our institutions, otherwise people lose faith in them.

Were you nervous making a movie about Whitey Bulger?

Everyone keeps asking me that. He’s an 83-year-old guy in an orange prison jumpsuit. What can he do to me? Frankly, I was more afraid of Chevron. 

How so?

I had a major lawsuit with Crude. They sued me for access to my dailies after the movie was over. They weren’t suing me for libel or defamation or anything; they decided they wanted my dailies to determine if there was anything in them that would help them fight the lawsuit that is the subject of my movie. As a journalist, I consider my dailies like a reporter’s notes, and I felt like I had to fight the subpoena. I ultimately lost and had to turn over my footage after several rounds. It was emotionally, psychologically, and financially draining. At the lowest point, I really started to question can I make these kinds of activist, social-issues films. Exactly one year later, I’m walking the red carpet [at the Academy Awards] with Jason Baldwin of the West Memphis Three, who nine months before was in a maximum-security prison in Arkansas on a life-without-parole sentence. That’s why that event was particularly impactful to me, because it had restored my faith that yes, these films can make a difference and yes, I need to keep making them. 

What’s next for you?

I jokingly tell people that I either make films about music or murder. I’ve done a lot of murder lately, so I’m about to start a film about Deep Purple. 


The System with Joe Berlinger airs Sundays at 9 pm on Al Jazeera America. Whitey: United States of America v. James J. Bulger will be released in New York City, Boston, and Washington, DC, on June 26 before expanding to additional cities throughout July.

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