Posts Tagged ‘Making A Murderer’


More Binge-Worthy Media of the Innocence World

Taylor Thornton — April 09, 2018 @ 3:44 PM — Comments (0)

For a long time it seems that the public has had an interest in crime. Crimes that are particularly violent, scandalous, or just simply awful always seem to capture the attention of the American public. This is why there are dozens of shows about murder, crime solving, and the minds of criminals. There are whole channels dedicated to such programs, like Investigation Discovery, where viewers can find programs like Wives with Knives or Nightmare Next Door.

In recent years, however, there has been a growing popularity for media not just involving crime but for those stories involving wrongful convictions. Bringing light to wrongful convictions and how they happen can only serve to help stop this from happening. The more aware and mindful the public is on how easily a wrongful conviction can happen and the type of damage it can cause, the more careful people will be. That being said, here are six more binge-worthy series, films, and podcasts from the world of wrongful convictions.

If you like any of these, be sure to check out our previous binge-worthy media post for eight more!

Series:

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To start with an obvious one that was touched on in our last post about this, the Netflix original Making a Murderer is one of the most popular series relating to wrongful conviction. This series follows the story of Steven Avery, sentenced to life in prison for the 2005 murder of Teresa Halbach, and his teenaged nephew Brendan Dassey, also sentenced to life for the same murder. Steven Avery was previously a client of the Wisconsin Innocence Project who helped exonerate him of his 1985 conviction of sexual assault and attempted murder. After serving 18 years for this wrongful conviction, Avery was free only two years before being arrested once again. This time, he is arrested for murder. To watch the trailer click here.

Image result for i am innocent netflix

Another more recent series is the 2017 docuseries I am Innocent. This series tells the stories of the victims of wrongful conviction in New Zealand. It also seeks to reveal the cracks in their justice system that cause these. This series can be streamed now on Netflix.

Image result for the murder of laci peterson

The 2017 A&E series The Murder of Laci Peterson calls into question the conviction and death sentence of Scott Peterson. This series brings back to the forefront one of the most infamous and high profile cases of the last twenty years over a decade after Laci Peterson’s Christmas Eve disappearance. Through interviews with reporters, family and neighbors, this series revisits the national fascination with Laci Peterson’s disappearance, how Scott Peterson became the most hated man in America, and what the police might have overlooked in order to convict Scott Peterson. For a trailer for this series click here.

Films:

Image result for the thin blue line

This 1988 film is an older one but still a must-watch for wrongful conviction junkies. The Thin Blue Line follows the story of Randall Adams, a man sentenced to death for a murder that he did not commit. The film shows a series of reenactments of the crime and interviews about the case with attorneys, police, and witnesses. The title refers to a statement by prosecutor Doug Mulder in his closing arguments for this case that police are the “thin blue line” that separates society and anarchy. To watch the trailer for this film click here.

Pocasts:

Image result for wrongful convictions with jason flom

Podcasts are a medium that grows more popular each day, and with this growth comes it’s fair share of wrongful conviction topics. This first podcast is called Wrongful Conviction with Jason Flom. In this podcast, the stories of all different exonerees are told based on the files of the lawyers who worked to exonerate them. In addition, the men and women themselves who were wrongfully convicted are interviewed. Click here to stream this podcast on Revolver podcasts.

Image result for accused podcast

This last binge-worthy podcast is Accused: The Unsolved Murder of Elizabeth Andes.  If you’re interested in going more in depth into a case than just one episode, this might be the right podcast for you. This series, as the title indicates, goes through the 1978 murder of Elizabeth Andes in her own home. The police decided they knew within hours who had committed this crime.  Follow this case episode by episode to decide if you agree and whether or not a killer walked free. Stream this podcast here.

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Steven Avery Updates

Alejandra de la Fuente — June 27, 2016 @ 3:30 PM — Comments (1)

Good news for Making A Murderer fans: Kathleen Zellner may be one step closer to proving her client’s innocence. Steven Avery’s new lawyer, known for her work in helping secure at least 16 exonerations, has examined every detail of the case in order to bolster her defense, from performing Luminol tests to even buying the exact model of the Toyota RAV4 that Teresa Halbach drove. It has recently been revealed that Zellner is having even more tests performed, including one on Halbach’s key that was found in Avery’s bedroom. The test could reveal the presence of a solvent on the key, which may have been used to wipe off Halbach’s DNA. This could also prove that Avery’s DNA may have been planted on the key, which was a crucial piece of evidence in the case against him.

Another new test Zellner is having done relates to the blood found in Halbach’s car. The test uses an internal compound to determine the age of blood and could prove that Avery’s blood found in Halbach’s car was old, which could also suggest that his DNA was planted.

Zellner plans to submit Avery’s appeal on August 29, with the hopes that his murder conviction will be vacated.

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Worldwide Protest to be Held in Support of Steven Avery and Brendan Dassey

Alejandra de la Fuente — June 07, 2016 @ 4:00 PM — Comments (0)

After its release in December, Making a Murderer took Netflix viewers by storm. People all over the nation binge-watched the series and formed their own opinions about the details of the case and whether Steven Avery and Brendan Dassey are innocent of murdering Teresa Halbach. The docuseries became so popular that even people from all over the world joined in on the craze that brought the topic of wrongful convictions to the forefront of public conversation. Now, those who believe in Avery and Dassey’s innocence can show their support on June 11 at a worldwide protest.

Injustice Anywhere, an organization that focuses on righting wrongful convictions, runs freebrendan.org, where details about the protest were posted. Along with cities nationwide including New York City, Washington D.C., and Sacramento, protests will also be held in Manchester, Dublin, and Melbourne. One will also be held in Avery and Dassey’s hometown of Manitowoc, Wisconsin, for which a GoFundMe page was created to raise money for an event following the protest where a guest speaker and silent auction will be featured.

Avery and Dassey supporters have created a number of online communities to share information such as articles about the uncle and nephew, pictures from prison, and updates from their family members. Facebook is one of the major platforms for those online communities, including the “Steven Avery Project” page, which has over 110,000 likes, and closed groups that encourage conversation. One noteworthy active member of those groups has been Carla Chase, Avery’s niece and Brendan’s cousin. The closed Facebook groups include the “We Stand 4 Innocence” rallies group, members of which firmly believe in the relatives’ innocence and have demanded that they be released and exonerated immediately. They feel that the misconduct of Manitowoc County officials should be enough to at least grant both Avery and Dassey new trials. Members also ask that Wisconsin’s Attorney General investigate accusations of Manitowoc County corruption and that law enforcement members who have participated in the misconduct be held accountable.

In addition to an obvious focus on Avery and Dassey, the protests on June 11 will also address the criminal justice system, particularly the issue of wrongful convictions. The long-term goals of the “We Stand 4 Innocence” group seek reforms to the criminal justice system in order to limit the future occurrences of wrongful convictions. Those reforms include police officers wearing body cameras, all interrogations to be videotaped, and guaranteeing that a lawyer is present while minors are interrogated.

Those who are interested or want to get involved can visit the “We Stand 4 Innocence” Facebook group for more information or to see if an event is planned nearby.

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Washington University School of Law Program’s Look at Ineffective Assistance and Brendan Dassey’s Case

Alejandra de la Fuente — May 16, 2016 @ 4:00 PM — Comments (0)

The American criminal justice system is not a perfect one, and a recent blog post on the Washington University School of Law’s master of legal studies program’s website addresses just one of the many issues individuals in the system face on a daily basis. The post discusses ineffective counsel in relation to the case of Making a Murderer’s popular character, Brendan Dassey. For anyone who is unfamiliar with story covered in the Netflix docuseries, the post provides an ample description of the case and details surrounding Dassey and his uncle, Steven Avery.

The post begins by identifying the relationship between the Miranda warning—which includes individuals being told of their right to an attorney if they cannot afford one—and the decision in Strickland v. Washington regarding the effectiveness of defense attorneys.

After describing the details of Dassey’s case, including how questionable the intentions of the teenager’s appointed lawyer were, the post delves into a deeper look at how the Strickland standard was born and the two-part test that came about as a result of the ruling in Strickland v. Washington. The post then addresses how Dassey appealed his conviction based on the standard, but was rejected because the Wisconsin appellate court felt his appointed attorney passed the question addressed in the first section of the test–that his decision was ultimately a reasonable strategic decision.

The post then briefly discusses the decision in Gideon v. Wainwright, which created the public defender system that provides the appointed attorneys referred to in the Miranda rights. The post argues that most public defender systems are not properly funded, therefore providing indigent defendants with underpaid attorneys who must handle large caseloads that leave them unprepared for court, such as in Dassey’s case. A quote is then provided from a research paper on ineffective assistance written by Peter Joy, a professor at the Washington University School of Law:

“There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor… The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.”

Joy goes on to say that because of the Strickland standard, new trials only occur when a defendant’s counsel has acted in an extreme manner.

The post concludes with a comment on how high the standards of the Strickland test are, and that Dassey’s case is proof that American citizens are not always guaranteed the effective counsel promised to them in their rights.

This post on the Washington University School of Law’s master of legal studies program’s blog highlights yet another example of the continuing and crucial need for reforms that must to be made in our nation’s criminal justice system. Until those necessary changes are carried out, the likelihood of wrongful convictions occurring will unfortunately remain an issue.

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‘Making a Murderer’ Roundtable – Steven Avery’s Trial (Note: Spoilers!)

Alejandra de la Fuente — February 19, 2016 @ 4:00 PM — Comments (0)

This week brings our fourth installment of Innocence Project of Florida’s roundtable blog series on Making a Murderer, and it is a big one. This week will cover episodes five through eight, as they all cover Steven Avery’s trial. As usual, we will first provide a recap of what happened in the episodes, then Seth Miller and Dr. Adina M. Thompson will discuss the information.

Recap:

Episode 5—“The Last Person to See Teresa Alive”

The state moved to have the blood vial that was tampered with excluded as evidence. Judge Willis denied their motion, to which the state then asked him during a pre-trial motion ten days before the actual trial to allow the FBI to create a new chemical test that would prove the blood found in Teresa Halbach’s RAV4 was not planted. During the hearing, the defense argued that no such test exists that can prove the state’s argument, and that the FBI was only agreeing to do it because the state was desperate. Judge Willis allowed the state and the FBI the chance to develop a test.

One week before the trial’s jury selection, the state had not indicated whether or not they intended to call Brendan Dassey as a witness. Therefore, the defense argued that without Dassey’s testimony, the court should dismiss the three charges of sexual assault, kidnapping, and false imprisonment that were added against Steven Avery following Dassey’s arrest, based only on facts provided in Dassey’s dubious confession. The state agreed to dismiss the charges of sexual assault and kidnapping. Going into trial, Avery faced charges for first-degree intentional homicide, mutilation of a corpse, a felon in possession of a firearm, and false imprisonment. February 12, 2007 was the first day of Avery’s trial.

During Avery’s trial, his nephew and Brendan Dassey’s brother, Bobby Dassey, testified. Bobby stated that he saw a vehicle drive up, Halbach got out and took pictures, and then she started walking over to Avery’s trailer. Bobby stated that he when he left to go hunting around 2:40 or 2:45 PM that day, Halbach’s vehicle was still in the driveway but he did not see her or any signs of her. He also mentioned that while his friend Michael was over, he (Bobby) and Avery had a conversation in which Avery asked him if he wanted to help him get rid of Halbach’s body.

Following Bobby’s testimony, the defense filed a mistrial motion, stating that they had no written summary of an interview with Bobby in which that statement was recited. The defense claimed that they did have a report of contact with Bobby’s friend, Michael, from November 10, 2005, in which he reported that he knew Avery was one of the last people to see Halbach and that he had jokingly asked Avery if he hid her in his closet. Michael stated that Avery then asked him if he wanted to help him bury the body, and both men laughed. Bobby claimed during his testimony that he was the one who had this conversation with Avery and that it took place on November 3, not seven days later, as Michael had stated. November 3 was before Halbach was even reported missing, whereas November 10 was after her cremains were found. The defense requested to have a mistrial granted or to at least have the jury regard all of Bobby’s testimony as false. Judge Willis denied the defense’s motion for a mistrial, and he also did not instruct the jury about Bobby’s testimony.

In a pre-trial hearing about third-party liability, Judge Willis ruled that the defense could not offer any alternative suspects to the jury by name except Brendan Dassey.

Mike Halbach, Teresa’s brother, also testified. He stated that his sister’s phone inbox was full when he tried calling her after their mother told him she was missing. He went into her voicemail and listened to all of her messages on November 3, but claimed that he did not delete any.

Tony Zimmerman, a Cingular Wireless network engineer, was then called to the stand. He reported that after October 31, 2005 at 2:41 PM, there was no activity in her account according to her phone bill. He also stated that this would not have filled up the full capacity of her mailbox, and therefore if someone heard a message that her mailbox was full on November 3 when they tried calling her, then this would indicate that at least one or more of her messages had been erased.

During Special Agent Tom Fassbender’s testimony, he told the defense that often times, victims’ loved ones are regarded as possible suspects and perhaps are even their assailants. He also stated that Avery was not the only person that was investigated for Halbach’s murder. However, the police never investigated anyone close to Halbach.

Ryan Hillegas, Halbach’s ex-boyfriend, also testified. He stated that following a phone call from Halbach’s roommate asking if he had seen her, he went to her house and the two men printed her cellphone records off the Internet to view her call history. Once Halbach was reported missing, Hillegas and Halbach’s roommate were interviewed together in the same room, but Hillegas said they never asked him for an alibi or his whereabouts on the day of her disappearance and that he was never treated as a suspect. The police even let him on the Avery property during their search, which was an area that was off limits to the general public during that time.

On November 5, 2005, Avery’s brother Earl granted Pamela and Nikole Sturm, members of the citizen’s volunteer search party headed by Hillegas, permission to search the Avery property. About 30 to 40 minutes after beginning her search on the Avery property, Halbach’s cousin Pamela Sturm found the RAV4 and called Sheriff Jerry Pagel of the Calumet County Sheriff’s Department to report it.

While Sergeant Andrew Colborn of the Manitowoc County Sheriff’s Department was on the stand, the defense argued that he called dispatch on November 3, 2005 with a license plate number, and the dispatcher responded that the number belonged to Halbach who was considered a missing person. Colborn then asked her to confirm that the vehicle was a Toyota RAV4. Colborn stated that Special Agent Mark Wiegert must have given him this license plate number on November 3. However, the defense then argued that there was no way Colborn should have been reading this number during the phone call with dispatch because the Toyota RAV4 was not reported to be found until two days later on November 5.

Episode 6—“Testing the Evidence”

On March 1, 2006, four months after initial searches, law enforcement returned to the Avery property to search for additional evidence in Steven Avery’s garage. A flattened bullet and 11 shell casings from 22 caliber rounds were found on the garage floor. While on the stand, Detective Dave Remiker of the Manitowoc County Sheriff’s Department stated that no bullets were found during the first search of the garage on November 6, 2005 or at any other time during subsequent November searches. He also stated that on March 2, when the flattened bullet was found, Lieutenant James Lenk was present for the search on that day and also on the previous day.

On March 2, one day after Brendan Dassey’s arrest and almost a year before Avery’s trial, prosecutor Ken Kratz and Sheriff Jerry Pagel held a press conference. Following Dassey’s interview, the men stated that they needed to reinvestigate because Avery’s garage was now included in the crime scene.

Special Agent Tom Fassbender stated during his testimony that no physical evidence linking Teresa Halbach to Avery’s trailer or garage was found right up until February 28, 2006.

Dr. Leslie Eisenberg, a forensic anthropologist, took the stand and stated that skull fragment defects found in Halbach’s cremains signify what happens to skull bones when they are subjected to gunshots. She stated that in her opinion, the manner of Halbach’s death was by homicidal violence.

Sherry Culhane, a DNA technical unit leader, tested the bullet fragment found in the garage. Fassbender asked her to try and place Halbach in Avery’s house or garage through testing, and she concluded and reported that Halbach’s DNA was indeed found on the bullet. Culhane admitted during her testimony that she had accidentally introduced her own DNA into the control during testing, which contaminated the sample. The defense argued that protocol requires that if a sample is contaminated, she must report the test as inconclusive for match purposes. However, Culhane deviated from protocol for the first time ever and instead reported that Halbach’s DNA was found in the testing of the bullet fragment. She also used the entire sample of DNA, so there was no way the bullet could be retested.

The defense argued that besides the burn pit outside Avery’s house and a burn barrel belonging to Avery’s relatives the Janda’s, there was a third burn location. Burned bone fragments found in a quarry pile miles from the Avery property were consistent with those found in the pit and the barrel, meaning that some burned bone fragments were moved.

Barb Janda’s—Dassey’s mother—husband, Scott Tadych, also took the stand. He stated that on October 31, 2005, he took a work vacation to be with his mother, who was recovering from surgery. He claimed that after he returned home from visiting her, he left to go hunting at about 3:00 PM. While driving west on his way to go hunting, he stated that he saw Bobby Dassey on Highway 147 driving east. Tadych stated that he returned home to the Janda property later that night and saw a big fire at Avery’s house, with flames about ten feet tall and Avery standing by the fire. During cross-examination, the defense presented Tadych with a document from when he spoke with law enforcement officers on November 29, 2005. During that conversation, he told officers that he got home from visiting his mother around 2:30 or 2:45 PM and that he arrived home around 3:15 PM. He also told the officers that the flames from Avery’s fire that he saw upon returning home from hunting were only about three feet tall.

Bobby took the stand again and stated that when he went hunting around 3:45 PM, Tadych saw him and that Tadych could confirm this because when he saw Bobby in his truck, maybe Tadych looked at his clock. However, this statement was inconsistent with Bobby’s statement from the previous episode when he claimed he went hunting around 2:40 or 2:45 PM.

Lisa Buchner, a Michicot High School bus driver, also testified. She stated that when she got to the end of Avery road on the day of Halbach’s disappearance, she dropped the Dassey boys off between 3:30 and 3:40 PM, which was about the same time and route every day. Buchner said she saw a woman taking photos of a van when she dropped the boys off.

Episode 7—“Framing Defense”

During a press conference in November of 2005, Sheriff Jerry Pagel emphasized that the Calumet County Sheriff’s Department (CCSD) and the State of Wisconsin’s Division of Criminal Investigation were conducting the investigation, and that the FBI was also assisting. He also stated that the Manitowoc County Sheriff’s Department’s (MCSD) only role in the investigation was to provide resources and equipment as needed.

While testifying, Sergeant William Tyson of the CCSD stated that Special Agent Mark Wiegert told him that his responsibility was to go with deputies from the MCSD into Steven Avery’s trailer, to document what they were doing, take custody of any evidence that they ceased, and to make sure that none of those deputies were alone on the property. On his team were Lieutenant James Lenk, Sergeant Andrew Colborn, and Detective Dave Remiker, all from the MCSD. Tyson stated that on November 8, 2005, when the key was found in Avery’s bedroom, he was not with Lenk and Colborn when they re-entered the residence.

Deputy Daniel Kucharsky of the CCSD was present when the key was found. He stated that when he went into the bedroom for the first time, the key was not on the floor.

November 8, 2005 was at least Lenk’s third time searching Avery’s bedroom. He stated that someone searched the bookcase on November 5. He then stated that on November 8, Colborn took everything out of the bookcase so that he could look in it. Lenk also admitted that he and Colborn volunteered to search the Avery residence, but did not mention to Special Agents Tom Fassbender or Wiegert or Sheriff Pagel that he had been deposed in Avery’s civil lawsuit a few weeks earlier.

During his testimony, Colborn discussed a conversation that he had with Avery on November 3, 2005 in which he asked if Teresa Halbach came to the property to take photos, to which Avery responded that she took pictures of a van that his sister was selling. Colborn then asked Avery if Halbach told him where she was going, and Avery responded that he never talked to her and that she was only there for five to ten minutes before she left. Colborn then stated that he entered Avery’s bedroom on November 8 with Kucharsky and Lenk, and that he handled the bookcase rather roughly. He also stated that during the searches on November 5 through 8, he did not enter Avery’s house or garage without Lenk.

Sergeant Jason Orth of the MCSD also testified. He was the first law enforcement officer to arrive on the Avery property once Halbach’s vehicle was found. He stated that he arrived around 10:59 AM and that no one approached or touched the RAV4, and that he also did not see Lenk or Colborn. He started a log of anyone coming to or from the scene at around 2:45 PM.

Fassbender stated on the stand that he arrived at the scene around 2:25 PM and recommended to officers that they start a log. He also stated that he did not see anyone tamper with the vehicle. The defense asked him to read a log entry that showed Lenk signing out at 10:41 PM on Saturday, November 5, 2005, but he did not sign in.

Lenk stated on the stand that he arrived on scene shortly after 2:00 or 2:05 PM and did not recall there being a log in sheet at that point, which would not have been strange considering the log was started until around 2:45 PM. However, in his testimony on August 9, 2006, Lenk said that he was not positive when he arrived on the scene, but that it was somewhere around 6:30 or 7:00 PM that evening.

In 2002, one year before Avery’s exoneration, evidence from his 1985 case file was sent to the State Crime Lab for DNA analysis. This file included an evidence transmittal form submitted by Lenk for the Penny Beerntsen case that contained the blood vial. Therefore, Lenk would have known that a source of Avery’s blood was available in the clerk’s office.

The defense explained that when blood is taken for samples and tests, it is put in a tube with a preservative chemical called EDTA that we do not have in our bloodstream. If EDTA was found in a bloodstain, then it was probably because it was planted. Jerry Buting, one of Avery’s defense attorneys, researched whether or not there was a test that could conclude if the blood found in the RAV4 was from a tube with preservative or from an actively bleeding person. Buting found that no such test existed anymore.

The state asked the FBI to create a test that could determine if EDTA was present in a bloodstain, and if they could have the test ready sometime in the middle of the trial. Originally in December, the FBI told the state that it would take four to six months to receive the results, which would have been too late to present during trial. However, in a matter of days, the week before the state rested its case, they announced that the FBI had the results of its newly developed EDTA test.

Dr. Marc LeBeau, the FBI’s Chemistry Unit Chief in Quantico, Virginia, testified on the EDTA test results. He stated that the FBI’s interest in the Avery case stemmed from the FBI’s responsibility for investigating crimes of public corruption. He stated that test results would show that either EDTA was present in a bloodstain and therefore show that the blood came from a tube, or that no EDTA would be found in a sample and therefore suggests that the blood came from an active bleed and not a tube with the preservative. Dr. LeBeau then stated that the EDTA test results concluded that the presence of EDTA was not identified in any of the three RAV4 swabs submitted to the lab. He stated that in his opinion, the bloodstains could not have come from the EDTA tube provided in the case.

During cross-examination, Buting argued that nothing in the request for testing stated that there was possible police corruption in Manitowoc County, intending to dismantle the FBI’s reason for taking an interest in the case in the first place. He also stated that there were three other swabs that were not submitted to the FBI for testing, and that Dr. LeBeau’s opinion about no EDTA being found in the swabs was limited to only the three that were tested. Inexplicably, Lebeau said his opinion of a lack of EDTA also applied to swabs he never even tested.

Janine Arrizu, a laboratory data quality auditor, also took the stand. She stated that in terms of EDTA tests, they can be considered reliable or good if the presence of EDTA is found in a sample. She stated that problems occur, however, when no EDTA is detected because there is no detection limit. This means that negative results cannot not distinguish when there actually is no EDTA present in the sample or when test simply did not detect it though it was present.

After the state rested their case, the defense filed a motion to dismiss the false imprisonment charge, which was the only remaining charge of the three that were added after Brendan Dassey’s arrest. The court granted the motion to dismiss the charge, which brought the defense back to the three original counts that Avery faced.

Avery announced to the judge that he would not testify, so with no witnesses remaining, both sides had two days to prepare for closing arguments.

If Avery were to be found guilty of count one—first-degree intentional homicide—then he would be sent to prison for the rest of his life.

Episode 8—“The Great Burden”

Over the course of two days, both the state and the defense presented closing arguments. At the conclusion of the closing arguments, the judge instructed the jury that their responsibility was to deliver a just and true verdict. After the closing arguments and final instructions, the jury began their deliberation.

On the second day of the jury’s deliberation, it was announced that one of the jurors had been excused the night before due to a family medical emergency. The judge stated that proceeding with 11 jurors was an option, but that it was up to Steven Avery to decide if he wanted to declare a mistrial or have a 12th, alternate juror brought in. Avery opted to have an alternate juror come into the jury pool. However, once this alternate juror was brought in, everything that the other jury members had discussed up until that point had to be thrown out and they had to start their deliberation back at square one.

On the fourth day of deliberation, after more than 20 hours of deliberation, the jury reached a verdict. The jury found Avery guilty of the first count of first-degree intentional homicide, not guilty of the second count of mutilation of a corpse, and guilty of the third count of a felon in possession of a firearm.

During an initial vote before members of the jury started deliberating, seven members stated that they thought Avery was not guilty, three stated that they thought he was guilty, and two were undecided.

After the trial had ended, Richard Mahler, the juror that was excused, told the documentary’s directors that he felt that the three jurors who believed Avery was guilty had their minds made up before the start of the trial, which made him feel uncomfortable and discouraged. He stated that those stubborn and closed-minded jurors were probably able to sway the other jurors to agree with them. He also stated that he did not know if the jury members agreed to compromise, but that they were all weak and tired going into deliberation. He also stated that he did not know if Avery was guilty or not, given the information presented to him during trial.

With the conclusion of Avery’s trial, Brendan Dassey’s trial was set to begin on April 16, 2007, and was expected to last two weeks. The defense filed a motion to bring in a jury from another county, which Judge Fox granted.

Discussion:

Following Bobby Dassey’s testimony, the defense filed a motion for a mistrial. The defense argued that documents showed Bobby’s friend Michael was the one who originally made the statements that Bobby claimed to have said during his testimony. The timeline of Bobby’s story also did not match up with that of Michael’s. However, Judge Willis denied the motion for a mistrial, and he also did not instruct the jury on Bobby’s testimony. Why do you think Judge Willis decided to take no action whatsoever in regards to the apparently questionable testimony of Bobby Dassey?

AT: Judge Willis’ ruling likely hinged on whether he believed the weight of the testimony would influence the outcome of the case. To declare a mistrial, he would have to believe that the testimony was so prejudicial that the jury would be unable to render a just verdict. Whether Bobby Dassey’s testimony truly did or did not impact the jury in this way, Judge Willis does not seem to believe including it hindered the pursuit of justice. Looking back now, we may wonder whether this was a correct decision.

SM: The Judge should have granted that mistrial. First, the prosecutor, for the first time is the one who inserted the November 3 date of this conversation and that Bobby was the one who had the conversation as part of his question to Bobby Dassey.  This was crucial because November 3 was before Halbach’s body was even found. If Avery was making comments about disposing of the body at that time, it could reasonably construed as a confession. Yet this was the first time this supposed statement by Avery on this early date was ever brought to the attention of the defense, which should have been a discovery violation. The defense only had statements suggesting that the conversation happened with Bobby’s friend on November 10, which was after Halbach’s cremains were recovered, making it impossible for Avery’s statement to be construed as anything but a joke, albeit a terribly tasteless one. So yes, this was a discovery violation, it was highly prejudicial because it suggested an incriminating admission by Avery and the Judge should have at least given the jury a curative instruction.

Judge Willis ruled during a pre-trial hearing that the defense could not offer any other possible suspects by name besides Brendan Dassey. What would have happened in terms of this ruling if the defense had actually discovered and presented evidence that would have pointed to another possible suspect, proving that Avery was innocent?

AT: Remember, the burden of proof in a criminal proceeding is on the State, and the burden to be met is guilt beyond a reasonable doubt. Therefore, Avery’s attorneys did not need to prove him innocent; they merely had to cast reasonable doubt. I imagine many viewers of Making a Murderer believe they did cast reasonable doubt, even though that doubt did not take the form of an alternative suspect.

SM: I think that’s right but the real issue is why on earth would the judge, in a pre-trial ruling, so hamper the defense attorney’s ability to present a defense for Avery. I have never heard of a court so limiting a defendant only to presenting evidence of a single, partocular alternative suspect, much less prohibiting the presentation of evidence connecting anyone else to the crime as as part of a reasonable doubt defense.

Contamination occurred when the bullet fragment found in Avery’s garage was tested. The woman who tested it admitted to this and also deviated from protocol when she reported that Halbach’s DNA was found on the bullet rather than reporting the test as inconclusive. This appeared to be a huge error that was made in regards to a crucial piece of evidence. Therefore, why do you think the bullet fragment was still allowed as evidence during the trial?

AT: I can only speculate as to why. What I can say is that laboratory protocol is in place for good reason. “Blanks,” or tubes without samples in them are placed between tubes containing samples in them when DNA testing is conducted, specifically in order to monitor for this type of contamination. If one observes DNA in the “blank,” that means something spilled/dripped/or was otherwise contaminated. Protocol in this situation is to start over. If there’s not enough genetic material to start over, that doesn’t mean an analyst should present sub-par results.

SM: People may be surprised by the issue of contamination but it is actually far more common that one would think. analysts invariably get their own DNA in the samples and this is why there are certain procedures designed to specifically catch it. It doesn’t necessarily mean the result is bad but the general rule is that you perform the testing again if there is sample remaining. More concerning is the reporting our of the result despite a protocol that required it to be called inconclusive and retested. It shows the bias of the lab that they were willing to violate their own protocol to report a result helpful to the prosecution. Generally, though, the notion of potential contamination or failing to follow a lab protocol is something that goes to the weight given to the forensic evidence by the jury and not its admissibility in the first place. Judges are often reticent to not let the jury hear about a forensic result, when DNA is something that is clearly generally accepted in the scientific community and the defense seemed to just trying to impeach what was an otherwise unhelpful result.

Teresa Halbach’s remains were burned in three different locations, including in one of the Janda family’s burn barrels. Because of this, and also given Bobby Dassey and Scott Tadych’s later inconsistent statements about the timeline of their whereabouts on the day of her disappearance, why do you think law enforcement didn’t consider any members of the Janda family as possible suspects and investigate them further?

AT: We don’t know that Halbach’s remains were burned in three locations so much as we know her burned remains ultimately ended up in three locations. As to the Janda family as suspects- I think law enforcement were victims of tunnel vision and confirmation bias. Once they settled on Avery and Dassey as the suspects, they were unwilling to consider other possibilities. Further, they accepted information that fit with their theory, such as Dassey’s confession, and rejected information that was contrary to their theory, such as the lack of Halbach’s blood in Avery’s bedroom even though Dassey said her throat was slashed there.

SM: Cognitive bias, such as law enforcement tunnel vision is a huge problem and once it sets in, it can erroneously influence the direction of the investigation and the lens through which law enforcement views evidence, such that it will reject evidence that is contrary to their preconceived notions about the case and make evidence fit where it shouldn’t because they believe the guy is guilty anyway. We see it in virtually every one of our cases where someone was eventually exonerated. As an aside, the multiple locations the cremains that only a few of the cremains were found in locations other than the burn pit suggested that Halbach’s remains were burned somewhere else, transported to the burn pit and those who did this just weren’t careful to gather all the cremains. This was a keen observation by the defense that poked a big hole in the state’s theory of the crime.

Sheriff Jerry Pagel of the Calumet County Sheriff’s Department, the lead agency in the investigation, emphasized that Manitowoc County Sheriff’s Department’s only role in the investigation was to provide resources and equipment as needed. However, it was brought up several times during trial that MCSD officers were present throughout different phases of the investigation and at several different scenes. This especially includes the fact that Lieutenant James Lenk and Sergeant Andrew Colborn were present inside Avery’s trailer when Halbach’s RAV4 key was found. If MCSD’s only role in the investigation was to provide resources and equipment only when they were needed, why were officers from that department even allowed to help search the property in the first place?

AT: Obviously, MCSD’s only role was NOT only resources and equipment. That was the party line, but in a small community where everyone knew each other, law enforcement seems to have all worked together. Perhaps the goal was to separate MCSD from the investigation at first, but that does not appear to be what happened.  This was a poor decision and reflects poorly on that agency. They should have removed themselves given the pending civil litigation.

SM: It really makes no sense why the individuals from the MCSD were continually involved in the investigation after the public statements to the contrary. Lenk and Colborn were so damn involved in the most important parts of the criminal investigation where evidence would be recovered and they had the much to gain from a frame up.

From Bobby Dassey to Lieutenant James Lenk, many people involved in the case seemed to give inconsistent stories in regards to their timeline of events and other details during the incident and investigation. For example, stating during original questioning that they arrived somewhere at a certain time, only to state later in their testimony during trial that they arrived hours later. Are so many inconsistencies on the part of both witnesses and law enforcement normal in these types of cases? If not, shouldn’t the testimonies of all the people who were shown to have made inconsistent statements been called into questioning? 

AT: It’s not weird to remember things differently after a long time has passed. However, the wide divergence in stories and the number of players who have divergent stories does make one wonder. Should Avery and Dassey ever receive retrials, it would be interesting to see how stories change now, after a decade and a documentary.

SM: I agree with Adina mostly. But the problem is that the stories tended to shift and evolve after the initial statements not because of a lapse in memory but instead because other facts came about after the initials statements of Lenk and Bobby Dassey that casted suspision on those initial statements. It appeared to me, as a viewer, to be a part of a broader effort to massage the facts in favor of the state.

When the state asked the FBI to create an EDTA test, the FBI originally told them that it would take four to six months to receive the results, which would be long after the trial. However, the FBI was apparently able to create the test and generate the results within a few days. Dr. Marc LeBeau concluded that no EDTA was found in the bloodstains that were sent to the FBI’s lab. But Janine Arrizu argued that the test did not show whether EDTA simply was not detected or was not actually present in the samples. It seems a little suspicious that the FBI originally stated that the test results would take months, but then miraculously procured the results, which were favorable to the prosecution and just in time before the trial ended. Given these circumstances, why do you think the judge allowed the prosecution to use the possibly unreliable and new EDTA as evidence during trial?

SM: At the time, Wisconsin used the Frye v. United States test for admissibility of new scientific techniques, which requires that such techniques be generally accepted within the relevant scientific community before being allowed to presented to the jury. It appears that no one in the entire country was doing this EDTA test, so it is hard to understand how it would be considered generally accepted. Indeed, the test was created solely for the resolution of a specific issue in this case.

Upon the excusal of one of the jury members, Steven Avery was given the options of asking for a mistrial, or to have a 12th, alternate juror brought in. Avery chose the latter. What would have happened if he had instead opted for a mistrial?

AT: Procedurally, Avery would have reverted to his pre-trial posture, and the State would have had to re-prosecute. Everything would have been done over again.

SM: Adina is right. It is easy in hindsight to say, “they should have taken the mistrial,” but that is a distorted view. The defense certainly had goals going into the trial and from my vantage point it appears they met most if not all of those goals to demonstrate reasonable doubt. Taking a mistrial and getting a do-over has its own risks, such as the prosecution being more prepared for your arguments or developing additional unfavorable evidence. Most defense attorneys, if they feel good about how the trial went, would not erase all of that.

Why do you think the jury found Avery guilty of the first count of first-degree intentional homicide, but did not find him guilty of the second count of mutilation of a corpse?

AT: Perhaps they believed Avery killed Halbach but that his codefendant burned her. Perhaps the jury was split on the homicide verdict and they compromised. Perhaps the jury did not consider burning to meet the definition of “mutilation,” or perhaps the jury didn’t feel the State proved that aspect of the case. Regardless of why the jury made the decision they did, finding Avery not guilty of the mutilation did not serve him in any meaningful way. Strang and Buting discussed this with the family at one point—they indicated that it all hung on that first charge, the homicide. However, what’s interesting is that it is unlikely the jury could have been justified in finding the opposite—if Avery was found not guilty of the homicide, he would almost certainly have been found not guilty of the mutilation as well.

SM: Juries are quirky and they often times “split the baby” in order to reach consensus. This is especially so in such a long deliberation like that in the Avery case where accounts suggest that the jury was highly divergent on the result at the outset of deliberations. Those deliberations are secret unless the jurors themselves choose to speak publicly, which happens from time to time. But laws and court rules protect jurors from witness investigation in criminal cases and from subpoena to court to testify about those deliberations. Thus, short of jurors speaking to the press about what actually happened, the rationale for the verdict will often remain obscured.

During a vote before deliberation began, most of the jury members felt that Avery was not guilty, while only a few thought that he was guilty. However, these opinions clearly changed once the final verdict was delivered. Do jury members often have complete changes of heart during the deliberation process, or was this an unusual or strange occurrence?

SM: This is the inverse of 12 Angry Men and with an update to today’s egalitarian times. Obviously, it is really concerning that a plurality of the jury, fresh off hearing all the evidence, felt that the prosecution didn’t meets its burden, yet they still convicted in the end. Were their doubts initially not reasonable? Were they brow beaten by the three who were hell bent on guilt to change? Was it because the jury was tired a weary and they gave in so the entire group could go home and return to their respective families? Again, we will likely never know unless someone from that jury gives us insight.

AT: Remember, a jury guilt vs. not-guilt. Basically, did the State prove its case? If not, the defendant must be found Not Guilty.

Jury deliberation is a popular area for psychological research. We know that there are two general ways that juries choose to deliberate—they either vote first and try to sway one another right away, or they debate and then vote. The way that different personalities on a jury influence each other is a fascinating area for study. I would offer that it is not unlikely for juror’s opinions to change. I refer you to Twelve Angry Men as a pop-culture example for how influence might operate.

Stay tuned for the last installment of our Making a Murderer blog roundtable.

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Steven Avery’s Twin Sons Speak Out for the First Time

Alejandra de la Fuente — February 16, 2016 @ 12:00 PM — Comments (1)

A lot has happened since the release of Making a Murderer on Netflix, including some people involved in the cases speaking out for the first time since the docuseries aired. Penny Beerntsen, the victim in the Steven Avery’s wrongful sexual assault conviction who declined to participate or comment during filming, was one of those people. Now, Avery’s twin sons, Steven Jr. and William, have spoken out for the first time with a reporter from Crime Watch Daily.

Steven Jr. and a reporter from the program discussed how he was “robbed” of having a relationship with his father, and William even told her that he considers his own father to be a complete stranger. The twins also discussed how the documentary’s widespread publicity has affected their family.

Steven Jr. told the reporter that when people hear his name, some are caught off guard. He even went on to tell her that he wanted to take his wife’s last name, but instead she took the Avery name, wanting to follow tradition. When the reporter asked him about any particular situations that have arisen because of the Avery name, Steven Jr. told her about how he applied to the military and that he was denied, despite being more than qualified. He claimed his denial came after one of the higher-ranking officers stated that it would be a cold day in hell before they—being the Avery’s—ever get hired.

The reporter asked the twins if they believe their father murdered Teresa Halbach, and she received mixed answers. William stated that he did not think he did it. However, Avery’s namesake said he had no idea, and that the only person who can answer that question is Halbach, who is no longer able to answer it. Although, Steven Jr. did go on to say that the entire case was very shady and that corruption was definitely involved. He also believes both his father and Brendan Dassey deserve fair trials because if they are found innocent, then Avery will have wrongfully wasted almost 30 years of his life behind bars.

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‘Making a Murderer’ Roundtable – Episode 4 (Note: Spoilers!)

Alejandra de la Fuente — February 05, 2016 @ 4:00 PM — Comments (0)

This week is the third installment of our Making a Murderer roundtable discussion. Episode 4, “Indefensible,” is covered. As always, we start off with a recap, then Seth Miller and Dr. Adina M. Thompson will discuss the episode.

Recap:

A new public defender, Len Kachinsky, was appointed to Brendan Dassey’s case. He sought to have Dassey’s confession thrown out because of the inconsistent statements he made.

On May 12, a hearing for a motion to suppress was held in which Judge Fox decided if Dassey’s statements would be admissible as evidence. Judge Fox denied the motion, allowing Dassey’s statements to be used.

Immediately following the hearing, Kachinsky made arrangements for his defense investigator, Michael O’Kelly, to meet with Dassey. O’Kelly met with Dassey alone on the afternoon of Friday, May 12 and interrogated him. Dassey repeatedly denied his involvement in the case, but then eventually signed a statement admitting his involvement, including drawings of what happened during the crime.

Following the statement, O’Kelly called Kachinsky and asked him if he should call Special Agent Tom Fassbender so that he could interview Dassey. O’Kelly called Fassbender and told him Dassey would like to speak with him. The next morning on May 13, investigators Fassbender and Mark Wiegert interrogated Dassey. The interrogation lasted 3 ½ hours, with Dassey continuing to give inconsistent stories, but eventually giving another confession. Kachinsky was not present during the interrogation.

In Avery’s case, the defense brought a pre-trial motion to exclude the Manitowoc County Sheriff’s Department from any involvement in Avery’s trial. Judge Willis approved this motion and excluded the sheriff’s department from any involvement in the upcoming trial.

Kachinsky advised Dassey to take a plea deal, to which Dassey responded by requesting new counsel. When asked why he wanted new counsel, Dassey told the judge that he thought Kachinsky thought he was guilty. Judge Willis denied the motion for new counsel.

In late summer, Judge Fox learned that Kachinsky allowed Dassey to be interrogated alone on May 13. Because of this, Judge Fox dismissed Kachinsky as Dassey’s counsel.

While Avery’s defense attorneys Dean Strang and Jerry Buting were conducting more research into the Manitowoc County Sheriff’s Department, they noticed that one name in particular kept popping up—Lieutenant James Lenk. Lieutenant Lenk was the one who found the key in Avery’s bedroom during the investigation and was deposed three weeks before Teresa Halbach disappeared. Strang and Buting found a transmittal form filled out by Lieutenant Lenk in a 1985 Avery file that went with evidence in 2002 to a crime lab.

Avery’s defense team obtained a court order to examine the contents of Avery’s 1985 case file. Upon examination, it was found that the seal on the outside of a box containing evidence was broken, as was the seal on the Styrofoam kit inside the box. The kit contained a test tube of Avery’s blood and in the center of the top of the rubber stopper in that tube, they discovered a tiny hole about the size of the hypodermic needle. Buting questioned someone who worked for the lab corporation about the hole, and he told them they do not do that.

Discussion:

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

During Brendan Dassey’s May 13 interrogation with investigators Tom Fassbender and Mark Wiegert, the juvenile was questioned alone. His attorney, Len Kachinsky, and Kachinsky’s investigator, Michael O’Kelly, called Fassbender to schedule this interview. Do attorneys usually choose not to be present during an interrogation with their client, especially if the client is a minor?

SM: It is not at all common for an attorney to volunteer their client for an interview and confession when the client is maintaining his innocence and even less common for the attorney to arrange the interview intentionally without the attorney present. This is especially so, when the client is a minor. Given what we know about minors, particularly their susceptibility to suggestion and confessing to please authority figures, it is so vital that attorneys protect them from the kind of techniques that we know lead to false confessions. One great way to do that is simply be there for your client to at least witness the coercive interrogation techniques so you can file an excellent suppression motion.

AT: No, this is an unusual thing to do.  Further, I imagine it may be a point that Dassey’s current attorneys could bring forth in post-conviction litigation. In fact, I believe that Mr. Kachinsky was required to testify in a post-conviction proceeding related to issues from trial (but don’t quote me on that!).

In post-conviction litigation, which is the type we do at Innocence Project of Florida, claims can be made that a trial attorney was ineffective. These are called Ineffective Assistance of Counsel (IAC) claims. However, many times IAC claims are denied because the trial attorney asserts that it was a strategic decision to behave in the manner s/he did.  So whether or not it is considered “usual” for an attorney to allow a juvenile client to be interrogated alone, the attorney can claim that the act was strategic.

Dassey stated that he requested new counsel because he thought that Kachinsky thought he was guilty.  This may have been supported by Kachinsky’s suggestion that Dassey take a plea deal.  If Kachinsky did in fact believe that Dassey was guilty, is it normal for an attorney to continue representing a client that they do not believe is innocent?

SM: Belief in your client’s innocence is certainly not a prerequisite for providing your client high-quality, zealous representation. Indeed, most people who move through the criminal justice system are in fact guilty and the fact that your attorney may not believe you are innocent, by itself, is not a reason to assume he or she won’t do a good job. The problem with Kachinsky’s actions was that he thought his client was guilty without a shred of evidence to support that guilt and despite his client’s protestations that he was innocent and his initial admissions to law enforcement appeared false. Heck, had Kachinsky done his job and been present as counsel, he would have seen for himself that Dassey’s confession lacked any reliability. You need to look no further than the actions of Kachinsky’s investigator to see how upside down things were for Dassey. His interrogation of Dassey, his own client, was more coercive than the police interrogation and like nothing that I’ve ever seen before. He left no room for Dassey to tell him the truth—that he was innocent of this horrible crime and had made up the story of his involvement. It was almost as if Kachinsky and the defense investigator were working with the cops and prosecutor to secure the confession, which is utterly insane for a defense team to play that roll.

AT: Kachinsky’s mandate, like that of all defense attorneys, is to advocate for the client to the best of his ability. Sometimes, that advocacy does extend to negotiating an advantageous plea agreement. In all, an attorney who, like Kachinsky, has been directed to serve as counsel for a defendant best keep his own feelings about culpability out of the mix, as those feelings should not be allowed to affect the quality of defense presented.

It is not unusual for a defense attorney to think the client committed the crime. At Seth said, most of those convicted by the American justice system are truly guilty. However, believing that the client committed the crime does not excuse the attorney from providing an adequate and competent defense on that client’s behalf.

We are in a unique position at IPF in that we get to pick our own cases. Because of that, we represent people whose innocence we believe in wholeheartedly. We are lucky in that respect. Not all private defense attorneys get to choose their cases, and public defenders certainly do not. Ultimately, it is not trial counsel’s job to determine whether a client is guilty or not guilty; that is the job of the jury.

Judge Willis denied Dassey’s request for new counsel. However, is it not a person’s right to choose who they want to represent them? Or is it different when a public defender rather than a private attorney is representing someone?

SM: The question identifies the distinction. Certainly you have a right to choose your counsel, to the extent that you can afford to hire an attorney. Generally speaking, however, if you are indigent and the court has appointed counsel for you, courts are not going to dismiss your counsel and appoint you substitute counsel absent some ascertainable and prejudicial conflict of interest. You not liking your counsel is not gonna cut it. Judge Willis, however, didn’t seem to care about getting down to the heart of the matter, which was that Kaschinksy was actively working to railroad his own client, instead just asking Dassey if Kaschinsky was nice to Dassey and whether they were able to communicate. Dassey gave affirmative answers to both. Again, the judge pivoted to issues that had little to do with the actual basis for the request for a new attorney.

AT: If you’ve ever watched a police procedure on TV, you’ve heard the Miranda rights that are required to be read to all arrestees. Included in those is the right of that arrestee to be represented by an attorney. It is not a guarantee that the arrestee be represented by an attorney of choice. As a result, those of lesser means are assigned public defenders, whereas those of greater means hire private attorneys who they select. One does not get to select a public defender—that attorney is assigned. While a person does not have a right to an attorney of choice, a person does have a right to a competent legal defense. A defendant may request new counsel if the defendant feels his attorney is not providing that competent defense. Dassey’s request to replace his attorney, he told the court, was because his attorney did not believe in his innocence. Judge Willis did not think this was a good enough reason. However, knowing now how Kachinsky behaved, one can see how Dassey’s request for a new attorney was necessary and likely should have been granted. Perhaps if Judge Willis had all of the information that viewers of Making a Murderer had, he would have assigned Dassey new counsel.

Judge Willis was the one who denied Dassey’s request for new counsel, but Judge Fox was the one who later discovered that Kachinsky allowed Dassey to be questioned alone on May 13 and therefore dismissed Kachinsky as Dassey’s attorney. Is there an explanation for why two different judges would be involved in this part of the case, or is this typical in big cases such as these? Why do you think the fact that Kachinsky allowed Dassey to be questioned alone was not brought up in the original request for new counsel to Judge Willis? 

SM: I have no idea why they would have a substitution of a judge in the middle of proceedings, but it could be due to a workload issue or simply new case assignments. I can only assume that the reason Judge Willis did not address the lack of counsel at Dassey’s interview with police on May 13 was because it was never presented to the judge.  Remember that Dassey, someone who has obvious intellectual limitations, was forced to make the motion to replace his counsel on his own. It’s obvious that he was not able to orally indicate the problems with Kachinsky to Judge Willis in the hearing, so it is likely he also could not effectively communicate the lack of counsel at the interrogation to the judge in the written pleading.

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More Recent Updates in the Steven Avery Case

Alejandra de la Fuente — February 03, 2016 @ 4:00 PM — Comments (1)

Earlier this month, IPF published a post to our blog detailing some recent updates surrounding the Avery family of the Netflix docuseries Making a Murderer. For those updates, click here.

As the series continues to gain popularity, more recent updates regarding the cases also continue to come about.

Avery continues to maintain his innocence in the murder of Teresa Halbach and is exhausting every legal option he can to prove his innocence to others. This includes filing another appeal on January 11, claiming that he was deprived of an impartial jury. A juror, who apparently felt Avery was guilty from the get-go, allegedly made several comments about Avery’s guilt to other jurors, which may have bullied them into convicting Avery. The appeal also claims that the search performed on the property that found incriminating evidence against Avery was done so illegally according to the limits of the search warrant.

Although filing the appeal himself, Avery has now hired a new defense team. His new attorneys include Kathleen Zellner of Chicago and the Midwest Innocence Project’s legal director, Trishia Bushnell. Zellner, Chicago Lawyer magazine’s 2014 “Person of the Year,” is not a new name in the world of wrongful convictions. According to her website, the lawyer has helped exonerate 17 people, including well-known exoneree Ryan Ferguson of Missouri. Ferguson was convicted in 2005 for strangling to death Kent Heitholt, a Columbia Daily Tribune sports editor, and was exonerated in 2013. Zellner hopes to add Avery to her long list of exonerations.

For fans that could not get enough of the series, there may be some hope. According to recent reports, there may be a second season of the popular documentary. Although Moira Demos and Laura Ricciardi, the directors of the series, would not confirm a second season, they have been gathering more material meaning a renewal may be in the early stages of development.

Avid supporters of Avery and Dassey planned protests in the hopes of getting them new trials. The protests were expected to draw attract around 200 people, with local and surrounding law enforcements preparing in case of violence. The protests took place on the morning of January 29, but only drew about 50 people—including both supporters and non-supporters—to the Manitowoc County Courthouse.

Speaking of the local protests, one side that has barely been covered amidst all the media attention is that of Manitowoc County. The media has tended to focus solely on the cases of Avery and Dassey. Unsurprisingly, the release of Making a Murderer has taken a serious toll on the community. Manitowoc County’s tourism office, law enforcement agencies, City Hall, and Historical Society have all received angry comments and inquiries, whether by telephone, email, or social media. Previously asked about beach views and the county’s quaint history, employees now receive hostile comments and questions regarding the town’s corruption. Residents of the community experienced animosity 10 years ago when the trial took place, but are now dealing with that animosity all over again on a much larger scale following the premiere of the series. Many citizens are reluctant to talk to the media when asked about the documentary or the cases, including Avery’s mother, Dolores, who now says tourists visit her property just to take pictures at the infamous crime scene. Demos and Ricciardi feel sorry for the backlash Manitowoc County has received, stating that they only intended for the docuseries to be a constructive look into the American criminal justice system.

Most recently, Zellner revealed that advances in technology and forensic testing will help prove Avery’s innocence and that there may be other suspects in the case. Zellner is doing everything she can to gather material that could help exonerate Avery, including buying the same RAV4 model that Teresa Halbach drove. She claims that within the next 30 days, new information will be presented in Avery’s appeal, so stay tuned.

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‘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.

exoneration,Innocence Project of Florida, , ,


‘Making a Murderer’ Roundtable – Episode 1 (Note: Spoilers!)

Alejandra de la Fuente — January 15, 2016 @ 10:00 AM — Comments (0)

By now, you have probably heard about the docuseries Making a Murderer released on Netflix last month. The series, which documents the life of Steven Avery from the time of his exoneration in 2005 to his current incarceration, immediately gained national popularity. While the concept of wrongful conviction is a new topic of interest for the general public, it has been an extremely important issue for those involved with and interested in the criminal justice system for quite some time now. It is incredible that interest in wrongful convictions continues to gain popularity because it represents a step in the right direction towards reforming the justice system in order to lessen the chances of these life-altering mistakes occurring.

Innocence Project of Florida’s (IPF) blog, Plain Error, has been revamped this year, producing new content every day. Because of the immense public interest in Making a Murderer and the continued following of the cases even after watching the entire series, IPF has decided to do a digital roundtable discussion about the docuseries on the Plain Error blog. Once a week, each episode will be discussed in order, and perhaps even a few episodes at a time. The posts will give a brief recap of what happened in the episode discussed, and IPF’s executive director, Seth Miller, and intake coordinator, Dr. Adina M. Thompson will discuss and answer questions about the content in each episode, along with the innocence movement’s response to the handling of the cases in the series.

Without further ado, the roundtable discussion will begin with the first episode, “Eighteen Years Lost.”

Recap:

Steven Avery of Manitowoc County, Wisconsin, was sentenced to 32 years in prison for the 1985 sexual assault, attempted murder, and false imprisonment of Penny Beerntsen. Although innocent of these crimes, he spent 18 years behind bars.

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On July 29, 1985, Penny Beerntsen was sexually assaulted while jogging at a beach along Lake Michigan

Beerntsen described her attacker to the responding officer at the hospital, Deputy Judy Dvorak, who commented that the description sounded like Steven Avery, who was not well-liked in the community. Chief Deputy Eugene Kusche drew his own composite from an mugshot of Avery was taken from jail records, instead of basing the migshot on the victim’s description of the attacker. This drawing was shown to Beerntsen, who confirmed that he was her attacker

Later that night, Avery was arrested. The next day, his lawyer was informed that the sheriff ordered Avery’s name not be on the jail list, that he not be allowed visitors, that he not be allowed access to the phone, and that he be held in a cellblock alone so he could not have contact with anyone. District Attorney Denis Vogel cited Avery’s past criminal record, and he was denied bail

While Avery was incarcerated, a man by the name of Gregory Allen, who had an extensive criminal history for sexual crimes by violence, repeatedly came up. Sheriff Tom Kocourek was approached by several officers, including Detective Thomas Bergner of the Manitowoc City Police Department, who suggested that the wrong man was in jail for the crimes against Beerntsen and recommended Allen may be responsible. Three women from the District Attorney’s office expressed their concerns to Vogel that the wrong man was incarcerated, also suggesting that Allen may be responsible. Yet the prosecutor did nothing. Due to his history of sex crimes, the city of Manitowoc required daily surveillance of Allen. On the afternoon of Beerntsen’s assault, the officers assigned to monitor him that day were called away to work on other crimes; therefore, Allen was not under surveillance during Beerntsen’s attack.

Avery had several alibi witnesses that accounted for his whereabouts on the day of the crime, in addition to a shopping receipt with a time stamp.

From 1986 to 1994, Avery appealed his conviction all the way up to the Wisconsin Supreme Court, but all of his appeals were denied.

In 1994, Stephen Glynn and Robert Henak agreed to reexamine Avery’s case. They obtained the sex crimes kit and tested the victim’s fingernail scrapings. The tests involved alleles at a single genetic marker, two of which Avery and Beerntsen shared; a third allele that did not match either of them, meaning there was DNA under the victim’s nails that could not have come from Avery.

Glynn and Henak presented these findings, but ultimately the court sided with the state; the court of appeals and the Wisconsin Supreme Court would later side with the state’s argument, too. The state argued that since tests could not prove who’s DNA was identified in the nail scrapings, they could not discount for the fact that the DNA could belong to Beerntsen’s husband, the couple that found her, the doctors that examined her, etc.

In 2001, the Wisconsin Innocence Project agreed to take Avery’s case. The organization also obtained the sex crimes kit and tested pubic hairs; one of the hairs generated a full profile from which Avery was conclusively excluded, meaning the pubic hair could not have come from him. The hair’s profile was run through the convicted offender DNA database and matched Gregory Allen, the alternative suspect.  Based on this evidence, Avery was exonerated in 2003.

Due to misconduct in the case, the Wisconsin Attorney General ordered the Division of Criminal Investigation to examine Manitowoc County’s handling of Avery’s 1985 case. Specifically, evidence existed that District Attorney was aware of Gregory Allen as the likely perpetrator but buried that information in his file. Inexplicably, the investigators concluded that no criminal or ethical violations occurred. Because the investigation did not hold the prosecutors accountable for their misconduct, Avery filed a lawsuit seeking $36 million in compensation for his loss of freedom and punitive damages for indifferent behavior of the defendants. The defendants in the suit included Manitowoc County, Sheriff Tom Kocourek, and District Attorney Denis Vogel.

Discussion:

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

Adina, you mentioned to me that it was hard to watch. What were your general feelings throughout the episode?

AT: It’s an interesting thing to see the work you do every day depicted dramatically. In fact, just the other day I was telling Seth that those who work in the Innocence movement are becoming the new CSIs. Just like those workers, most peoples’ first exposures to our work and our community is through the media. The first episode of “Making a Murderer” is likely the first time many people have heard about post-conviction litigation, Innocence organizations, or other things that are common discussion in my world.

Similarly, things that are shocking to the general public about the Avery case are du rigor for us who work in this field. Yes, I can believe that a heinous injustice occurred, because I see accounts of injustice every day. In my position as Intake Coordinator at Innocence Project of Florida, it is my specific job to find these cases and shine a light on them. I am not surprised by what happened to Steven Avery, because it happens to so many people. However, I am heartened that these issues are finally entering the collective consciousness through mainstream media. Documentaries like Making a Murderer, podcasts like Serial—each of these is a small window into the work Innocence workers do each day. This is just the beginning of the story. If Avery’s case is important to people, I urge them to learn more. Check out the over 1700 cases on the National Registry of Exonerations. Read a book like Picking Cotton or The Innocent Man. Check out the Innocence organizations operating in your state at InnocenceNetwork.org. Watching this documentary is only the first step.

SM: I didn’t find it necessarily hard to watch, though that doesn’t diminish the level of obvious misconduct that led to Avery’s wrongful conviction for the Beerntsen rape. Doing this work for a decade doesn’t provide for many surprises in these cases. In fact, the parallels between Avery’s case and parts of many of our own cases are there. So you kind of get hardened and used to seeing things that I think folks who are newer to this work or the public at large expect or assume just don’t happen. Remember that the innocence movement is really only a few decades old and the idea that wrongful convictions can happen and are widespread is a new one to enter the public consciousness. What I saw was a very typical situation where someone who is a usual suspect, from a family that was not active in (and was loathed by) the community, who had limitations in his intellectual functioning and was an easy target, gets entangled in a criminal matter. And once the authorities commit to this person as a suspect, the cognitive bias and tunnel vision sets in and then every action on the part of the authorities is designed to support their theory that this person committed the crime and they ignore contrary information suggesting innocence. They’ve already decided in their gut. My experience suggests that tunnel vision like that which existed in Avery’s initial case is far too common and probably a leading cause of wrongful conviction. It is  something that law enforcement needs real training to guard against.

Obviously, Avery’s exoneration and his reuniting with his family is a sweet picture of what it is like on exoneration day. I’ve been a part of a number of such moments and they are all different and special in their own way.

The fingernail scrapings tested in 1994 showed a third allele, which meant that the DNA under the victim’s nails could not be Avery’s.  However, the court sided with the state, which stated that because they could not identify who’s DNA it was, they could not discount for the fact that the DNA could belong to Beerntsen’s husband, the couple that found her, the doctors that examined her, etc.  Why do you think this is relevant/mattered?  Why do you think the court accepted the state’s argument?

SM: The state’s arguments, adopted by the judge, to deny relief based on the initial DNA results are the usual canards proffered by the state to urge the rejection of perfectly good evidence of innocence. These are the same arguments that the state asserted in our recent cases of Dean McKee and Dwight Dubose (both pending decisions by a Tampa court on overturning those  convictions). As a brief primer, the DNA testing method used Avery’s case looked at genetic markers that had two alleles at each marker (one from mom and one from dad). These alleles are highly variable so this type of DNA testing is useful in criminal cases where you are trying to either match or exclude a person from being a contributor.  Because each person only has two alleles at each marker, the presence of one or more additional alleles at any marker is proof of a foreign contributor. The complication for Avery appeared to have been that at the one marker showing the presence of the foreign contributor, he had the same alleles as the victim (though this shouldn’t really have mattered). The state made it seem like it is easy to get foreign DNA underneath a victim’s fingernails, which is simply false. There is about 20 years of scientific study on the transfer to and prevalence of foreign DNA underneath fingernails. And the consensus conclusion of that research is that it is unlikely for foreign DNA to transfer to fingernails through casual contact and everyday living. Rather, when it is identified, it gets there from intimate contact—sexual relations, scratching, violent struggles, which are all the things that happened during the rape in Avery’s case. Moreover, they could have obtained the DNA profiles of the husband, the doctor or the good samaritans to exclude them as contributors. The judge didn’t have to speculate and he could have simply relied on the science. Instead the judge just ignored this science, to incorrectly deny Avery and cause him to be wrongfully incarcerated longer.

AT: As Seth said, peer-reviewed scientific papers available now (and some that were available in 1994) have demonstrated that it is unlikely to get foreign DNA under one’s fingernails through casual contact. We now know that a foreign DNA profile under the fingernails of a victim who participated in a struggle is more likely to be from the person that victim struggled with than from someone that victim had casual contact with (shared towels, shook hands, etc.). Innocence Project of Florida recently litigated a case that dealt with this issue, in fact. However, these papers weren’t all available in 1994. In 1994, at the time that Avery’s DNA matter about the fingernails went before the court, the court may have believed that DNA could find its way under fingernails through casual contact. I also agree with a point made in the documentary—I think the court sided with the State in 1994 because sometimes, the system’s goal is not actually to uncover miscarriages of justice, but to uphold its own findings.

Despite the blatant misconduct on behalf of the Manitowoc County Sheriff’s Office (such as denying Avery phone calls following his arrest, dismissing several different authorities that came to Sheriff Kocourek regarding Gregory Allen, essentially ignoring Avery’s alibi, etc.), why do you think the Attorney General’s Office found no criminal or ethical violations in their investigation into the handling of Avery’s 1985 case?

SM: One thing that we have learned after more than 1,700 exonerations in the last two decades is that folks in power are rarely held accountable for their part in causing a wrongful conviction. I can think of one instance, where the prosecutor (turned judge) from the Michael Morton case in Texas was thrown off the bench and eventually sent to jail (albeit for 10 days) for his willful withholding of exculpatory evidence that led to Morton’s wrongful conviction. But the lack of accountability is a real problem and prevents real behavioral changes on the part of institutional actors.  The lack of consequences of misconduct creates an incentive to cut corners and a disincentive for agency leadership to root out the bad apples among them. Civil awards haven’t even been a deterrent because the individual members of police or prosecuting agencies rarely bear the brunt of that financial penalty. We need stronger ethical rule and discipline boards with some guts to, at minimum, take away the law licenses of prosecutors who intentionally withhold favorable evidence and there should be similar sanctions for law enforcement member who commit intentional misconduct. Such accountability would go a long way in changing police and prosecutorial practices to help prevent wrongful convictions before they happen.

AT: It is a hard task to turn a mirror on ourselves and own up to our mistakes. Add the code of silence and “have your brother’s back” that exists among law enforcement, and I think the outcome of the investigation is unsurprising. We are dealing with small-town politics and people who all know each other. In an environment like that, it may be a dangerous thing to admit one’s mistakes or point out others’ mistakes. In law enforcement communities, I get the sense that everyone sticks together. If that’s the case and everyone stuck together when they were challenged by the Attorney General, that put the AG in a precarious position. What if law enforcement revolted? What if it upset the community homeostasis in a larger way? Ultimately, I think the AG came at the decision from a utilitarian perspective. Utilitarian ethics suggest that the decision that is ethical is the one that does the greatest good for the greatest number of people. The AG may have made the decision they did because denying the wrong done to Mr. Avery hurt him and his family, but condemning the wrong done by the law enforcement actors could have had wide-reaching repercussions. Finally, in the documentary it was expressed that the Avery family was largely disliked in their community. Who knows how far and how high that dislike reaches? The lack of violation attributed to the police and prosecutors was just another way those in power in Wisconsin showed how little they cared for the Averys.

In regards to Avery’s $36 million lawsuit, I was surprised by such a large number.  Is this number within the usual price range exonerees seek in their lawsuits?  How does one decide how much money is acceptable compensation for being wrongfully imprisoned for so many years?

SM: I’m not sure how they came up with that number but I assume they landed on $2 million for each year of wrongful incarceration. Seems arbitrary but what is a year of your life worth? Avery lost his entire family and the best years of his life. Money just doesn’t restore that time. Many states have set compensation schemes where, if you can meet some standard of innocence, you can obtain an award from the State. Most have a set amount per day or year of wrongful incarceration and most have caps on the total award. Some even have exclusions from eligibility, such as making you ineligible if you falsely confessed, as it is seen as the exoneree having contributed to his or her own wrongful conviction. In Florida, we do not allow compensation to someone who had a felony conviction prior to or during their wrongful conviction.  So IPF client Bill Dillon was ineligible from statutory compensation because three years before he was wrongfully convicted of murder, he was convicted of felony possession of drugs for having one Quaalude pill. Similarly, Florida exoneree Orlando Boquete had the temerity to escape from his wrongful incarceration and that conviction for escape made him ineligible for compensation for his entire period of wrongful incarceration. These exclusions blame the victim of the wrongful incarceration for their own wrongful incarceration and must be eliminated. Again, how do you value your freedom? Would anyone really trade a few decades of the best years of his or her life to get $50,000 or even $2 million for each of those years lost? I know I wouldn’t.

AT: You know, it’s hard to put a value on a life. How do you assign a monetary value to a year of potential? To eighteen years of potential? How much money is 18 years of lost time worth? That’s a hard question to answer. When exonerees seek compensation through civil suits, a lot of that compensation is not direct compensation for wages lost—it’s for pain and suffering. Sometimes, it may be punitive as well. In a civil suit, two types of damages may be awarded—compensatory damages serve to restore the victim to whole, while punitive damages serve to punish the wrong-doer.

You can look at compensatory damages related to earning potential—how much money would that person have earned had he not been locked up? However, we are not our jobs, and we are worth so much more than our jobs. What is the value of a year with one’s children, lost? A year with one’s family? A year in one’s home?  We are responsible not only to restore the exoneree-victim monetarily, but also to compensate him for his suffering.  Exonerees seek compensation in three general ways: Through civil suits, such as Mr. Avery did; through compensation statutes, such as the one in place in Florida; and through special legislative action asking the state to pass a bill to compensate. In Florida, some exonerees may seek compensation under the Florida statue for $50,000 per year for each year of incarceration, up to $2 million. Compensation statutes vary widely by state, and some states have no statute in place. The value of monetary compensation is important, as these people need the help to eat, be sheltered, and be clothed; but it is not everything. Exonerees also require what is referred to as “holistic” compensation. This encompasses not just money but a wide range of social supports, including vocation training, medical and mental health care, housing assistance, and other services. Research has demonstrated that exonerees who are compensated may be more successful than exonerees who are not compensated, not only because of the intrinsic value of the money and services provided, but also because of the emotional value of receiving compensation and acknowledgement of wrongdoing. How does one put on monetary value on an apology?

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Stay tuned for our our next installment of the ‘Making a Murderer’ blog roundtable.

Compensation,exoneration, ,

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