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.
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.
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.