‘Making a Murderer’ Roundtable – Episodes 2 & 3 (Note: Spoilers!)

Alejandra de la Fuente — January 29, 2016 @ 4:00 PM — Comments (0)

This week we bring you the second installment of Innocence Project of Florida’s (IPF) roundtable discussion on Making a Murderer. The second episode, “Turning the Tables,” and the third episode, “Plight of the Accused” are covered. Once again, the discussion will first give a recap of what happened in each episode, then IPF’s executive director, Seth Miller, and intake coordinator, Dr. Adina M. Thompson, will discuss the episodes.

Recap:

Episode 2—“Turning the Tables”

After being released from prison on September 11, 2003, Steven Avery became somewhat of a celebrity; even politicians wanted to take their photo with him.

Representative Mark Gundrum founded the Avery Task Force, hoping to prevent what happened to Avery from happening again. In December of 2003, the Avery Task Force began hearings to review police and prosecutorial practices statewide, with Avery testifying first. The Task Force made recommendations for criminal justice reforms, and the state legislature began drafting The Avery Bill.

At the time of Avery’s exoneration, Wisconsin statute for compensation of those wrongfully convicted allowed exonerees to receive a mere $5,000 a year, with a $25,000 cap. Astounded by such a low number, Reps. Gundrum suggested that they should receive $25,000 a year. Following this suggestion, a bipartisan group of legislators worked on a measure to pay Avery $450,000 in wrongful conviction compensation.

Avery’s civil rights attorneys Stephen Glynn and Walt Kelly filed a civil lawsuit, stating that the district attorney and the sheriff were constitutionally obliged to turn exculpatory evidence about Gregory Allen over to the defense. The suit alleged $36 million in damages—$1 million for each year Avery spent in prison, and the other $18 million for punitive damages. The suit focused on the accountability of those who wronged Avery.

In October of 2005, legislators moved forward on a draft bill to compensate Avery for his wrongful conviction.

During litigation, Avery’s civil rights lawyers learned information that was not known before. In 1995, after Avery had been in prison for a decade, the Manitowoc County Sheriff’s Department (MCSD) received a call from another law enforcement agency, saying that they had someone in custody that said he committed an assault in Manitowoc for which someone was in prison. Sergeant Andrew Colborn took this call from the Brown County Sheriff’s Department. Sgt. Colborn did not report this call until the day of or after Avery’s release in 2003. He finally reported it to his superior officer, Lieutenant James Lenk, who told him to write a report–eight years after Colborn first learned of this information. Sheriff Kenneth Petersen told Lt. Lenk to get him the report, and upon receiving it, Sheriff Petersen placed the report in a safe.

Avery’s attorneys also received a September 18, 2003 memo written by Manitowoc County’s Assistant District Attorney Douglass Jones, detailing a recorded a phone conversation between ADA Jones and Chief Deputy Eugene Kusche of the MCSD. The call, which was about Avery’s case, took place after Avery had been exculpated and Allen had been inculpated. ADA Jones stated that as he tried to close the conversation, Chief Deputy Kusche told him that in 1995, Sgt. Colborn said to Sheriff Tom Koucorek that an officer from Brown County had told Sgt. Colborn that Allen and not Avery might have actually committed the Beerntsen assault. Deputy Chief Kusche stated that Sheriff Kocourek told Sgt. Colborn something to the effect that they already had the right guy and that he should not concern himself. ADA Jones asked Deputy Chief Kusche if this information was known, and he responded that Lt. Lenk was aware. This memo was not given to the Attorney General’s Office during its investigation discussed in the first episode.

Manitowoc County, the sheriff, and the DA had insurance. However, because of the nature of the allegations against them, insurance would not cover them. This meant that they would all be held responsible for the damages sought in the civil suit.

On November 1, 2005, The Avery Bill passed the state legislature.

On November 3, 2005, Teresa Halbach was reported missing. Halbach was a photographer who was last seen on October 31 of that year. She was taking pictures for Auto Trader magazine, and had three clients that day, including Avery. Avery stated that she had been to his property several times before on similar assignments. Avery was the last client she visited that day. After going to Avery’s, she did not make or receive any phone calls, did not make any credit card transactions, and did not open any voicemails.

A search party for Halbach was created, consisting of family and friends. A member of the search party made a call from the Avery property to report that she had found a dark green Toyota RAV4 that matched the description of Halbach’s vehicle. She stated that the car had no plates and that it was covered up, as if someone was trying to hide it.

Following the discovery of the vehicle, the Calumet County Sheriff’s Department launched an investigation, and the county’s District Attorney Ken Kratz was assigned as the special prosecutor for the case. The Avery family was not allowed on their property while law enforcement conducted an eight-day search on the premises.

On November 8, 2015, the fourth day of the Avery property search, human cremains were found, suggesting that an attempt was made to dispose of the body by incendiary means. Pieces of human bones and teeth were found on the property, along with a key used to start Halbach’s vehicle that was found in Avery’s bedroom.

Calumet County Sheriff Jerry Pagel told reporters that the MCSD’s role in the investigation was to provide resources as needed, and that when investigators needed an item on the property to conduct searches, the MCSD provided that piece of equipment. He reiterated that this was their only role in the investigation.

On November 9, 2005, investigators Mark Wiegert and Tom Fassbender conducted an interrogation. Avery alleged that evidence was planted, and the investigators insisted that Avery murdered Halbach, but Avery maintained that he was innocent.

DA Kratz addressed evidence-planting rumors to reporters. He stated that hopefully that absurd idea would quickly dissipate, given that Avery’s DNA was on the key found in his bedroom and that his blood was found inside Halbach’s vehicle.

Episode 3—“Plight of the Accused”

At the same time Steven Avery was arrested for the murder of Teresa Halbach, the Avery Bill passed unanimously. Governor Jim Doyle agreed to sign the bill despite the pending charges against Avery. However, because of those same charges, the state of Wisconsin discontinued its efforts to compensate Avery for his wrongful conviction.

Avery’s preliminary hearing took place on December 6, 2005. District Attorney Ken Kratz called his first witness to the stand—the woman who found Halbach’s vehicle. DA Kratz also called upon Special Agent Tom Sturdivant, who stated that he could clearly see bone matter in the burn pit from eight feet away. A deputy was also called to the stand, and he stated that the key in Avery’s bedroom was found on the floor next to a cabinet. He explained that Lieutenant James Lenk and Sergeant Andrew Colborn had been searching the house. The deputy stated that when slippers near the cabinet were first moved, the key was not seen and was not there. He revealed that Lt. Lenk was the one who saw the key first, pointed to the floor, and mentioned that it was there.

While incarcerated, Avery settled the civil lawsuit for $400,000. However, $160,000 went to lawyer fees, so Avery only received $240,000. The settlement meant that in exchange for payment, Manitowoc County did not admit fault or liability for Avery’s wrongful conviction.

On February 16, 2006, Avery called his civil rights lawyer Stephen Glynn, who recommended Avery hire Dean Strang and Jerry Buting as his defense lawyers. Later that month, he hired them using money from his settlement.

On March 1, 2006, law enforcement called their first press conference since November. Authorities told reporters that a 16-year-old male relative of Avery was taken into custody and was being detained at a juvenile facility. They stated that the youth had admitted both his and Avery’s involvement in the death of Halbach.

On March 2, 2006, law enforcement held another press conference to reveal details about the case. DA Kratz stated that Avery’s 16-year-old nephew, Brendan Dassey, returned home from the school bus around 3:45 PM on October 31, 2005. Dassey retrieved the mail, noticed one of the letters was for his uncle, and as he approached Avery’s trailer he heard screams. After knocking several times, Avery finally answered the door, partially dressed and very sweaty. Dassey followed Avery down the hall to his bedroom, where he saw Halbach completely naked and shackled to Avery’s bed. Avery then invited Dassey to sexually assault her, which he admitted he did. Dassey cut Halbach’s throat upon Avery’s instructions, but she still did not die. The men choked her, dragged her body outside, and threw her in the burn pit after shooting her in the head and stomach.

Dassey’s initial court appearance took place on March 3, 2006. DA Kratz requested bail to be set at $250,000, to which Dassey’s public defender argued that it was excessive.

The Wisconsin Innocence Project distanced themselves from Avery, temporarily removing his picture (and that of every former client) from their website.

Dassey’s public defender removed himself from the case, as he was a distant relative of Halbach.

Barb Janda, Dassey’s mother, stated that she believed her son’s original statement and that officers made him say what they wanted to hear in later interrogations. In his initial statement, Dassey told investigators that he had no contact with Halbach and had no knowledge of what happened to her.

The pre-trial hearing in Steven’s case took place on March 17, 2006. Based on Dassey’s statements, DA Kratz added three new charges against Avery, including sexual assault, false imprisonment, and kidnapping. The judge ruled that he would not allow Avery’s parents to post their property as part of their son’s bail. Avery’s bail was also increased to $750,000.

Under Sheriff Robert Hermann of the Manitowoc County Sheriff’s Department stated that if Avery had not been released from prison originally, Halbach might still be alive. Representative Mark Gundrum stated that maybe it was a good thing that Avery was in jail for so long because perhaps he would have committed more crimes if he were released sooner.

Investigators Mark Wiegert and Tom Fassbender interrogated Dassey on March 1, 2006. They repeatedly told him to be honest and tell the truth, as well as suggested scenarios in a leading fashion in order to get Dassey to give detailed answers about how the murder occurred. After questioning him alone for three hours, Janda spoke with her son and he told her that he did not do anything and that the investigators got to his head.

Janda stated that if Dassey testified against Avery, he will get 20 years plus parole, but if he does not testify against him, he will receive life without parole.

Discussion:

Seth Miller (SM) and Dr. Adina M. Thompson (AT) responded to questions about the episodes.

Law enforcement did not discover the human cremains and the key in Avery’s bedroom until the fourth day of their investigation. Both types of evidence were seemingly in plain sight, as corroborated by the special agent and deputy who testified for the state during the preliminary hearing. Why do you think it took so long for them to find such crucial pieces of evidence that were in plain sight?

AT: Both the State and the defense attest that the key was not on the floor during the previous searches. The state said the key fell off the nightstand/shelf during the search and landed on the floor in the spot where it was discovered. The defense said the key was planted in that spot in an attempt to frame Steven Avery.  I agree that the key was not found because it likely wasn’t there. What I cannot answer is how it got there. The jury, in convicting Avery, may have come to the conclusion that the key was not planted but arrived on the floor by the slippers by innocent means. Whether or not this is true may be a matter that resurfaces in post-conviction.

SM:

Adina is right that this is the big question for viewers and the jury alike. These folks are diligently searching Avery’s trailer for any semblance of evidence and they turned up nothing over many days. Then suddenly such a vital piece of evidence appears. There isn’t any dispute that the key was not seen in plain sight on the earlier searches. It is certainly odd and leads to the inference that it was placed where it was found. Given that Lenk miraculously found the key where others had failed and given his earlier involvement in covering up evidence of Avery’s innocence on the earlier rape charge, this is one of those rare instances where the defense attorneys were handed a plausible, evidence-based planting theory as part of their defense.

Calumet County District Attorney Ken Kratz, when addressing Avery’s evidence-planting accusations, informed reporters that Avery’s DNA was found on Halbach’s key and his blood was found in her car. This announcement appeared to be made only days after this evidence was discovered. How long does DNA testing usually take? Is it even possible that authorities could have known it was Avery’s DNA in such a seemingly short amount of time? 

AT: DNA testing in a case can be affected by a whole lot of things—for example, how busy the laboratory is, or how far backlogged they are. Also, testing can be affected by how many items of evidence are being submitted from the case, and how many kinds of testing are being done. I can’t tell you a definite amount of time it will take, because it’s going to be different in each situation. What I can tell you is this: It is not like Law and Order. Nobody here at Innocence Project of Florida is walking a bloody something-or-other down to the basement and getting a text message with “a match” seven minutes later. It’s possible that the State in Avery’s case asked the laboratory to expedite the test; it’s possible the lab wasn’t particularly backed up or that they had plenty of staff to cover their work. Most probably, this was one of the highest-profile cases ever see in the county, to they probably prioritized the work. In an expediting procedure at a nearby lab, I don’t think it’s unheard of to get results within a week, especially if all other work at that lab is being put on the back burner.

SM: Adina is right that a lot of factors affect how long it takes to complete DNA testing. Given the high stakes nature of this criminal investigation it is certainly possible to finish the testing and report the results in a day or two. In the case of IPF client James Bain, who was exonerated after 35 years in prison for a rape he did not commit, authorities were able to get FDLE to expedite confirmatory DNA testing in a matter of days ahead of a court hearing set to free James.  So it is possible if the authorities have a reason to want it to go quickly.

Brendan Dassey told investigators that he cut Teresa Halbach’s throat after Avery told him to do so. However, there was no blood found in Avery’s bedroom when there should have been a decent amount if Dassey’s story were true. With no blood present to back this up, doesn’t this compromise the rest of Dassey’s confession?

SM:

The lack of blood at the scene is one factor strongly suggesting Dassey’s confession was false and fabricated. Given the universal agreement that Avery wasn’t very sophisticated and the general disarray of his trailer, it is implausible that such a gruesome and violent murder could have occurred in the trailer and no blood from the victim would have been deposited–even with the best and most sophisticated effort to scrub the scene of any such blood. What is so odd about Dassey’s confession is that when someone is as limited as Dassey and so susceptible to a false confession, the facts fed to the confessor by the interrogators are usually at least consistent with the physical evidence as it is known. Here, Dassey’s explanation of how the murder occurred was wildly at odds with what the law enforcement officials were actually seeing at the scene. Situations like this, where the confessor is providing known false facts, is a tell-tale sign that they are falsely confessing and simply making stuff up. Yet, the interrogators here were very willing to accept Dassey’s amazing story probably because their tunnel vision was squarely focused on Avery and they were unconcerned with information that undermined their preconceived notions about the case

AT: I would venture that it isn’t only the lack of blood that compromised Dassey’s confession. There is a set of factors that combined to make this a dangerous situation with conditions ripe for a false confession to happen. Some things that may increase the likelihood of a false confession that were present in Dassey’s case include: age, in that children may be more likely to falsely confess than adults; mental acuity, in that people with lower IQs may be more likely to confess than people with higher IQs; and custody, in that children who do not have a parent, guardian or attorney present may be more likely to make a false statement. When those factors are combined with the fact that investigators asked Dassey leading questions (“Who shot her in the head?”) after he failed to introduce the facts independently, AND the fact that Dassey continued to change his story to please his interviewers…well, it’s a dangerous situation. A false confession is of course possible. As Seth pointed out, the story Dassey told about slitting Halbach’s throat does not line up with the evidence collected from the location where that supposedly happened, which only adds to my suspicion about this confession. For more information about false confession and admission, I suggest reading work by Dr. Saul Kassin of John Jay College of Criminal Justice. He’s one of the people doing cutting-edge social science research in this area. Of course, I can’t say for certain whether Dassey falsely confessed or not. I can only identify the risk factors.

SM: While anything is possible, I’ll go out on a limb and posit that Dassey’s admission was in fact a false confession.

Under Sheriff Robert Hermann made a comment insinuating that had Avery not been released from prison originally, Halbach might still be alive. Representative Mark Gundrum made a comment suggesting that Avery may have committed more crimes had he been released sooner. However, these two men were referencing a crime that Avery did not commit. Why do you think they would insinuate that Avery would commit crimes based off his original conviction, even though he was completely exonerated for that crime?

AT: Emotions run high when a person is convicted of a crime, and those emotions are just as powerful when a person is exonerated of a crime. I don’t think Hermann and Gundrum believe Avery committed the Beernsten rape. I think they spoke the way they did because there is sometimes a tendency to believe that people who get caught up in criminal investigations must have done something wrong, or police wouldn’t be interested in them in the first place. The analysis might be that, yes, Mr. Avery didn’t do that rape, but he “probably” did something else, and he got what was coming to him. Statements like those are often made from a place of fear, and suggest that a person would ever get caught up in a police investigation if he wasn’t a criminal to begin with.

This kind of question is similar to the kinds of thing I studied as a graduate student. My research looked at whether the public is more likely to stigmatize exonerated people than they are those people who have never had an encounter with the justice system. What I was looking for was whether or not that sense of dislike of exonerees, that sense of assigning criminal qualities, is actually there.  My co-authors, Lora Levett and Oscar Molina and I found that the public didn’t generally view exonerees more negatively than “regular” people. But here’s the thing—despite what we found in quantitative  (numbers-based) research, scholars are still finding stigma and prejudice of exonerees when they look at it in qualitative (interview- and observation-based research). We hear suspicion, fear, and poor treatment from the exonerees’ own stories. Exonerees’ own stories suggest to us that despite the fact that we know Avery was innocent of that rape, and despite the fact that the biological evidence proved it, there are still some people who will be unwilling to accept that he was not a rapist.

SM: I think what this comes down to is people want to believe when the criminal justice system gets it right it is putting away bad guys and, conversely, people have this pristine picture of the individuals that are exonerated. But this binary view of system outcomes is facile. Politicians and the public love exonerees when they can make a positive character assessment. Yet, most people exonerated of crimes had previous criminal records. It is those previous interactions with law enforcement that often led them to be ensnared in a subsequent criminal investigation and wrongfully convicted of a new crime. So among the class of folks we are dealing with, many of them have been in trouble before. What people need to understand is that we don’t (or shouldn’t) incarcerate people because we assign a poor character to them for things they have done in the past and for which they already paid their penance.  This isn’t the Minority Report where we put otherwise law abiding people away to avoid crimes we think they may have the propensity to commit in the future. What’s more, it doesn’t appear to dawn on these folks that a rush to judgment wrongfully convicted Avery the first time and we evidently just fell into that same mindset and behavior. A criminal justice system based on character assessments instead of evidence should concern all of us.

Stay tuned for the next installment of this series next week.

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