Two months before Steven Avery’s trial for the murder of Teresa Halbach — a trial that would become the centerpiece of Netflix's brand new and very popular 10 part docu-series, "Making a Murderer" — and two months after filmmakers Laura Ricciardi and Moira Demos requested an interview with lead prosecutor Ken Kratz, co-director Ricciardi received an ominous phone call. It was the co-lead investigator of the Halbach case, asking where he could find Ricciardi so that he could serve her with subpoena for any footage related the investigation.
The filmmakers panicked, knowing that for all practical purposes, this subpoena had the ability to shut down their film.
"We were two independent filmmakers," co-director Demos told Indiewire in a recent interview. "We wouldn't have had the money, and certainly it would have taken a ton of time to duplicate our footage, close to 300 hours of footage at that time, just to produce all of that for the state would have shut us down."
It’s important to remember that in 2006 the two documentarians didn’t have Netflix, who didn't get involved in the project until 2013, and the company’s deep pockets to lean on. They were two filmmakers trying to make their first film after grad school. Luckily, Ricciardi had been a practicing lawyer for four years before going to Columbia University to study film, and she would serve as the film’s production counsel until Netflix came aboard.
"Ken Kratz was alleging in [the subpoena that we were] acting as an investigative arm of the defense," explained Ricciardi. "So we brought the motion to quash the subpoena, refuting Mr. Kratz’s accusations as baseless."
One of Kratz’s claims was that he believed the filmmakers might have evidence related to the murder of Halbach, a claim the filmmakers are emphatic was impossible.
"We were not trying to investigate the Halbach case in any way, in fact we were being very careful to avoid any discussion of the case because we didn't think that was our place," explained Ricciardi. "The case was pending, the stakes were very high and we did not want to put anyone in jeopardy. So that wasn't our role."
And had they come across evidence that would have helped prove Avery's innocence or guilt?
"I think we would have thought it through had that happened, and I think we would have sought legal advice and tried to do the legal and ethical thing," Demos said.
Another aspect of Kratz’s subpoena was that he wanted any electronically recorded material of the filmmakers' communication with Avery which, as Ricciardi explained, caused the filmmakers to be suspicious of the prosector’s motivations:
"What's really interesting about that is, any of the statements Steven would have made to myself or anyone working for our company would have been recorded by the jail itself. All of the calls Steven was able to make and all the visits were being monitored and recorded. So our argument in the motion to quash was [that] the state does not need these materials from us because the state already has these materials. When considering that, it's interesting because then you think, 'Okay, what's really the real reason behind the subpoena?'"
Do the filmmakers feel like Kratz was abusing his power, the way the series shows him doing with Avery's case, and was actually trying to stop them from filming?
"I agree with that on some level," Demos said. "Getting the subpoena felt like hostility coming toward us."
Ultimately, Judge Willis, who presided over the Halbach murder case, agreed with the filmmakers' claim that the subpoena was baseless and quashed it, ensuring that the filmmakers enjoyed the same protection as other journalists.
Three months later, the "Making a Murderer" team was filming the trial and gathering a large portion of the material that would become the heart of Netflix's latest hit and a bonafide pop cultural force.