The inconvenient truth is the criminal justice system considers the veracity of confessions, scientific evidence, and eyewitness accounts nevertheless inconclusiveness occasionally carries the day. Criminal law allows reasonable minds to disagree over questions of guilt vs. innocence. Filmmakers Laura Ricciardi and Moira Demos understand this point well as their blockbuster Netflix original documentary series, Making a Murderer, demonstrates. They have pieced together in 10 hour-long episodes compelling narratives about convicted murderer Steven Avery that raise vital questions about fairness in the legal system.
The film tracks the legal troubles of Steven Avery, a man with an IQ of 70 and part owner of an auto salvage yard who, in 2003, was freed after 18 years in prison when DNA evidence cleared him in a 1985 sexual assault. Fast-forward to 2005 when Steven is arrested for the murder of Teresa Halbach, a 25-year-old photographer whose charred remains were discovered at the Avery Salvage Yard.
The title of the popular series asks a very significant question: Who or what made Steven Avery a murderer? Is this a case of wrongful conviction and the reverse CSI effect? The groundswell of outrage compels us to closely review the “evidence.”
Penny Beerntsen set the Steven Avery story in motion. Penny pleaded for her life before losing consciousness when she was attacked and raped on a beach in 1985. Police knew Steven. He had poured gasoline on a cat and threw it in a fire. He rammed his pickup truck into the vehicle of a woman who was driving and held her at gunpoint. He also was convicted of burglary.
Cops showed Penny pictures of Steven, whom she selected as her assailant and also in a live lineup. At his trial, he produced an astonishing sixteen alibi witnesses yet he was convicted. The Wisconsin Innocence Project took his case and ordered two hairs that were found on Penny to be tested for DNA, proving Gregory Allen, not Steven, committed the crime. A judge exonerated Avery and freed him from prison.
The Penny Beerntsen case shows the system did not work. Former Calumet County District Attorney Ken Kratz claims Making a Murderer unfairly let viewers believe an unconscionable miscarriage of justice occurred. But it did, at least with regard to Steven who served nearly two decades behind bars for a crime he did not commit.
One would think in this day and age technology and scientific advancements would have gotten us out of the rabbit hole. It hasn’t. How do we increase forensic evidence’s reliability and minimize wrongful convictions?
In the Teresa Halbach murder, proof included so-called DNA from Steven’s sweat found on a latch under the hood of Teresa’s Toyota RAV4. Steven’s blood was found inside Teresa’s vehicle, and the documentary explains the defense theory that officers who had access to a vial of his blood could have planted it there. The defense discovered that a vial of Steven’s blood, on file from the 1985 case, had been tampered with as the outer and inner seal on the box in which it was kept had been broken, and the vial itself had a puncture in the top. One officer was allegedly left alone with Teresa’s vehicle for several hours after it was located and before Steven’s blood was discovered inside.
Teresa’s remains were found in burn barrels right next to Steven’s house. Was Steven so careless as to place the body of a woman he murdered directly in his yard? Defense attorneys argued that the bones were burned somewhere else and then dumped in tubs right outside Steven’s front door.
The key to Teresa’s car was discovered in Steven’s trailer. Was he again so careless as to leave a piece of evidence linking him to Teresa in plain sight? Did someone want to make it seem obvious that he killed her? The detective who found the key located it after that same space was searched multiple times without the key being located.
The bullet in the garage wasn’t discovered in a week’s worth of searches and it was the only piece of evidence that had Teresa’s DNA on it. The analyst who identified Teresa’s DNA on the bullet had allegedly been instructed by a county detective to try to come up with evidence that Teresa had been in Steven’s house or garage.
There were clearly holes in the detective’s case so what did they conceivably do to close the gap? Talk to Steven’s teenage nephew, Brendan Dassey, who was interrogated multiple times without his lawyer present.
Without Brendan, there is no narrative that fits the prosecutor’s theory of the case. With Brendan’s “confession,” Steven killing Teresa “now makes sense,” said DA Kratz on Dateline. In the early course of those interviews, Brendan claimed to have no knowledge of Teresa. Then, he gradually described an increasingly garish torture scene that culminates in her murder. The issue of murder by gunshot comes up only after investigators prod Brendan to describe what happened to Teresa’s head. The detectives, not Brendan, focus on the gunshot wound.
“Something with the head,” a detective probed Brendan. That’s a leading question and feeding him details. In response, Brendan tried guessing that Steven punched Teresa in the head or cut her hair. They needed him to say “shot her in the head with a gun” because that is what the forensics establishes happened. So eventually, the detective says, “Alright I’m just going to come out and ask you, who shot her in the head?”
A team of seasoned investigators influenced, persuaded, and threatened Brendan Dassey into saying what they wanted to hear, and asked leading questions that provided the answer before the examinee had a chance to respond. From the interrogation, it is obvious Brendan had no clue what actually happened to Teresa. Brendan repeatedly recanted his confession, including in a letter to the judge and on the witness stand.
Motive is not an element of the offense of murder. It is immaterial with respect to liability for a crime. However, the role motive plays in criminal cases is all too important. It is part of the litmus test of guilt or innocence. Why would Steven and Brendan murder Teresa?
Some think law enforcement officials in Steven’s hometown, Manitowoc County, Wisconsin, are guilty of framing him for the murder of Teresa Halbach. Two years after his exoneration and release for the Penny Beerntsen crime, Steven sued the Manitowoc County sheriffs department for $36 million over his false imprisonment. Think of the $36 million figure in this light: Why would Steven risk his freedom and abandon a large settlement to kill a woman he barely knew?
As a result of the pending civil litigation, the Manitowoc County Sheriff’s Department was supposed to have nothing to do with the investigation of Teresa Halbach beyond lending any necessary equipment to the jurisdiction in charge. This they did not do. After being charged with murder, Steven’s hand was forced to settle the lawsuit for $400,000 – he needed the money to pay for private defense lawyers in the murder case.
There was one simple way to avoid the allegations that Steven Avery was framed, and that was to keep Manitowoc County Sheriff’s officers away from the investigation. Just as Steven was poised to collect a substantial civil settlement for his wrongful conviction he was tossed in jail. In 2005, just weeks after depositions of local cops who were associated with the Beerntsen case, Steven was arrested.
Prosecutor Ken Kratz, who still believes the right man is behind bars for the murder of Teresa Halbach, resigned from his district attorney post in 2010. The Wisconsin office that regulates attorney conduct asked the state Supreme Court to suspend the former prosecutor’s law license for trying to spark an affair with a domestic abuse victim through a barrage of racy text messages and allegedly making sexual remarks to a number of other women. He didn’t face any criminal charges.
The documentary presents evidence suggesting that law enforcement officials framed Steven for Teresa’s murder because they were angry with him for suing them over the bogus rape charge. Motive is everywhere in this case, but not necessarily for the reasons you might initially think. Were the prosecutor’s alleged sexual harassment and ethical violations evidence of widespread corruption and/or misuse of power? Who had motive?
If Not Steven, Then Who?
Steven Avery claims that his brother Charles has a history of aggression toward women. Steven further asserts that Charles’ criminal conduct with regard to his wife in the past set precedent for violence against women. According to Steven, Charles had a desire to frame Steven over money following his wrongful imprisonment settlement, a share of the family business, and over Jodi Stachowski, Steven’s girlfriend at the time.
Steven’s other brother, Earl Avery, had a criminal history, having been charged with sexually abusing his two daughters in 1995. (He pleaded no contest.) He also assisted police in their investigation of Steven Avery.
Steven’s lawyers do not accuse law enforcement of killing Teresa, but argue that officers believed so strongly that he carried out the slaying, they planted evidence in order to ensure a conviction. Jurors often think homicides are personal in nature and sometimes they are. But Teresa Halbach may have been collateral damage in a family dispute over money.
The Manitowoc County jury of six men and six women deliberated for nearly 22 hours over three days before ultimately finding Steven guilty of intentional homicide and being a felon in possession of a firearm. The jury acquitted Steven of mutilation of a corpse. Those findings tell me jurors made a compromise verdict reached after some jurors gave up their views on certain issues to avoid a deadlock. Steven was sentenced to life in prison without parole.
The filmmakers of Making a Murderer explained that a juror who served on Steven Avery’s 2005 trial for the murder of Teresa Halbach told them how the jurors ultimately traded votes in the jury room and explicitly discussed, “If you vote guilty on this count, I will vote not guilty on this count.” Consider this in light of the fact that compromise verdicts are invalid because intrajury negotiations represent a failure of the jury process. Remember, criminal verdicts reflect a jury’s unanimous factual assessment. If that principal is upset when a juror votes for a verdict as a compromise, that verdict is typically dismissed as examples of jurors dishonoring their oath to apply the law and seek the truth.
Steven filed two motions in January alleging violations of due process rights in his prosecution for the 2005 murder of photographer Teresa Halbach. One of the motions claims a search warrant executed on the property was invalid; meaning evidence collected and presented to the jury from that search should have been excluded at trial. The second motion claims a juror pressured others into voting guilty. The idea is that a negotiated verdict contradicts the fundamental purpose of the criminal trial, which is to establish the material truth. There is also a claim by Steven that evidence was mishandled, especially the victim’s car, which was not sealed properly by authorities, thereby allowing someone to plant his DNA inside. The motion seeks a stay of enforcement of the judgment and release on bond. If the court decides to vacate Steven’s conviction, prosecutors would have to then decide whether to retry him without the impermissible evidence.
Brendan awaits a federal court decision on claims that his confession was coerced and that he had a right to a lawyer who would mount a defense.
The discovery of wrongful convictions in the United States has reshaped the debate about criminal justice. Grab your gavel, join the conversation, and let us know what you think about the trials and tribulations surrounding Steven Avery.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.