“Making a Murderer” Sparks Public Outrage (as well it should)

by John Taylor

Netflix delivers a must-see documentary with Making a Murderer. Is it biased? Does it leave out evidence? Yes and yes, but comprehensive and neutral are not what make a great and compelling documentary. Making a Murderer highlights material flaws regarding how many police, prosecutors, and others in authority operate within our judicial system. It begs the question, is the system tilted too far in one direction?

avery17On July 29, 1985, Penny Beernsten was jogging on the beach along Lake Michigan. A stranger grabbed her, dragged her to a nearby wooded area, and sexually assaulted her. When she described her assailant to a Manitowoc County [Wisconsin] Sheriff Deputy, he thought the description sounded like Steven Avery, a local man with a criminal record.

A police sketch artist drew a composite sketch of the perpetrator, but he likely drew the sketch from Steven Avery’s previous mug shot rather than from the victim’s description. Penny Beernsten was shown the sketch and then provided a photo array of possible perpetrators. She picked out Steven Avery and again identified Avery as her assailant during a live line-up. Beernsten’s identification was confident and emphatic.

There was no physical evidence tying Steven Avery to the crime scene or the sexual assault. Regardless, the police arrested Avery based on the victim’s eyewitness identification. At trial, Avery presented over 10 alibi witnesses, including a store clerk who stated Avery was at his store shortly after the attack occurred. For Avery to have been the perpetrator, he had to walk a mile to the nearest parking lot, drive home, load his family into their car [his family was also present at the store], and drive 45 minutes to the store in just over an hour’s time. However, the prosecution successfully refuted the alibi witnesses and demonstrated that Avery could have covered that distance in the allotted time. Based almost exclusively on eyewitness testimony, the jury found Steven Avery guilty of rape, and he was sentenced to 32 years in prison.

avery10In 2003, DNA testing of 13 hairs that were recovered from Penny Beernsten’s assault linked the rape to Gregory Allen, thus exonerating Steven Avery. Avery was released from prison in September of 2003. During the time Avery was in prison, the actual perpetrator, Gregory Allen, raped another woman.

After serving 18 years in prison for a crime he did not commit, Steven Avery initiated a civil lawsuit against Manitowoc County and several individuals. During the initial investigation, the police had another suspect in mind, but they chose not to show Beernsten his picture. The police avery5worried it might confuse her. The alternative suspect was Gregory Allen, who was known to law enforcement because he had committed another sexual assault on the same strip of beach where the Penny Beernsten attack occurred.

Sergeant Andrew Colborn of the Manitowoc County Sheriff’s Office received a phone call in 1995 from a police officer in another county. During the call, the officer told Colborn that Gregory Allen confessed to Penny Beernsten’s rape. Sergeant Colborn told Lieutenant James Lenk, also of Manitowoc County, of the call, but no one acted on this information. There was no documentation of the call until September 12, 2003; the day after Steven Avery was released. On that day, Lenk instructed Colborn to write a report on the 1995 phone call. This information was not discovered until Avery’s civil lawsuit.

avery9As initial depositions were taken for Avery’s $36 million wrongful-conviction, civil lawsuit against various Manitowoc County and several sheriff’s deputies, he became the prime suspect in a homicide. Teresa Halbach, a photographer for Auto Trader Magazine, went missing on October 31, 2005. Her last confirmed destination was the sprawling, 40 acre Avery Auto Salvage yard where she met Steven Avery to take a photograph of a vehicle for sale. After they were unable to locate her for several days, Teresa’s family reported her missing. On November 5, 2005, search volunteers found Teresa’s vehicle [Toyota Rav-4] hidden behind debris among thousands of cars in the salvage yard on the Avery property.

With Steven Avery’s pending $36 million civil lawsuit against Manitowoc County and several of its officers, there was a very clear and obvious conflict of interest. As a result, once Halbach’s Rav-4 was found on Avery’s property, Manitowoc County District Attorney, Mark Rohrer, requested that the investigation be turned over to the authorities in neighboring Calumet County. The Manitowoc County Sheriff’s Office was not to be involved in Teresa Halbach’s missing person investigation or any derivative thereof.

avery16Based on the discovery of the Rav-4, the police obtained search warrants for the property and various buildings and houses located nearby. On November 6, 2005, Teresa Halbach’s remains were found in a fire pit on the Avery property. The police also found two weapons linked to Steven Avery; and as a result, arrested him on November 9, 2005 for possession of a firearm by a felon.

As the search of the Avery property continued, police collected additional circumstantial evidence against Steven Avery with regard to Teresa Halbach’s murder. Police discovered Steven Avery’s blood inside the Rav-4. While searching Steven Avery’s bedroom, police also found Teresa’s Rav-4 key, later determined to have Avery’s DNA on it. During a later search, police found a bullet casing in a garage on the Avery property with Teresa Halbach’s DNA on it.

It is not clear how assurances that Manitowoc County would not be involved in the Halbach investigation were completely disregarded and ignored. Regardless, Manitowoc County Sheriff’s deputies were present on the day the Rav-4 was found and during all of the searches of the Avery property and buildings. Further, almost every critical and compelling piece of evidence against Steven Avery was found by a Manitowoc County Sheriff’s deputy. The appearance of impropriety emanated from the investigation. Why were individuals who had been deposed as part of Steven Avery’s civil lawsuit collecting evidence against him?

avery13Investigative bodies are supposed to be disinterested in the outcome or direction of a criminal investigation. Even under the best of circumstances, police officers have engaged in dishonest activities that materially affected judicial outcomes. However, Manitowoc County’s blatant disregard for how their involvement would be perceived, significantly and adversely impacted the impartiality and credibility of the evidence collected.

To further muddy the waters, two men who were specifically named in Avery’s civil lawsuit, Sergeant Andrew Colborn and Lieutenant James Lenk, found key pieces of evidence. Both men had significant motivation to incriminate Steven Avery. Avery’s arrest for murder would impair his credibility in the lawsuit. However, Avery’s arrest resulted in a far better outcome: he was forced to settle the lawsuit for a fraction of what he was seeking [$400,000], in order for him to pay his legal defense.

Colborn and Lenk clearly recognized the perception issue and conflict of interest they were engaging in. So it begs the question, why were they searching Steven Avery’s house and property for evidence? Their involvement could have compromised the entire investigation and possibly allowed a killer to go free. Based on their role in preventing Avery from getting out of prison years earlier and their prominence in the civil lawsuit, their actions should be viewed skeptically, as they would benefit materially from Steven Avery’s undoing.

avery7When the police initially searched a garage on the Avery property, eleven .22 shell casings were found. After several other searches and almost six months later, an additional .22 shell casing was located in the same garage containing trace amounts of Teresa Halbach’s DNA. Due to the small amount of DNA recovered, only one sample could be tested. During the testing process, the technician contaminated the sample with her own DNA. Though according to protocol, the technician should have reported the results as “inconclusive,” she ignored standard procedures and concluded the DNA sample matched Teresa Halbach.

Finding Teresa Halbach’s DNA on a bullet casing implied that Steven Avery shot her while in the garage. However, the police did not find a single drop of blood or even a hair follicle from Halbach in the garage. Further, there was no blood anywhere in the garage, including the cracks in the concrete floor, which would have been nearly impossible (certainly improbable) for Avery to clean up.

The Rav-4 key police found in Steven Avery’s bedroom was discovered in plain view. Yet, his small bedroom had been searched six times prior and no one saw the key. The officers present claimed the key fell from behind a desk after one of them shook it.

Police found Steven Avery’s blood in the Rav-4. Suspecting the police may have planted the blood evidence, Avery’s attorneys pulled Steven Avery’s blood evidence (vial) from his 1985 rape case file. When the county clerk presented the box containing the vial, the evidence tape had been cut and replaced with plain tape. No one had signed the evidence form indicating they opened it. An unknown person had opened the box containing Avery’s vial of blood. When the attorneys viewed the vial, they noticed a pin hole in the top of the vial, which the testing agency claimed they would not have done. It was also later determined that Manitowoc County officers had access to the evidence room.

avery19Initially, Steven Avery had a partial alibi in his 16 year-old nephew, Brendan Dassey. The investigators who talked to Dassey, Tom Fassbender and Mark Wiegert, were not Manitowoc County Sheriff’s deputies. Fassbender worked as an investigator for Wisconsin Division of Criminal Investigation and Wiegert was a sergeant with Calumet County Sheriff’s Department. These two investigators interviewed Dassey several times. Dassy was reported to have a 70 I.Q. and his reading proficiency was well below average. [Steven Avery was also reported to have a 70 I.Q.] From viewing interviews and reading transcripts, it is quite evident that Dassey lacked basic intelligence and social skills, though he mainly came across as shy and lacking in confidence. Regardless, the investigators guided him through numerous confessions involving Teresa Halbach’s murder.

The investigators bullied and lied to Dassy. [It is acceptable for police to lie to witnesses and suspects.] Dassey’s incriminating statements appeared to be nothing more than a regurgitation of information provided by the detectives. Many of Dassey’s statements to police implicate Steven Avery in the murder of Teresa Halbach. However, at one point during the documentary Dassey is seen asking him mom what the word “inconsistent” means and then admitted his answers were guesses at what the police were trying to uncover.

The interviews of Brendan Dassey consisted of two adults in positions of authority leading a young boy with low-intelligence to their desired outcome. He was helpless to their persuasion. At one point during an interview, Dassey described how he and Steven Avery raped and stabbed Teresa Halbach on his uncle’s bed and then killed her in the garage. Yet, there is zero forensic evidence to substantiate these assertions. As one of Avery’s attorneys stated, “It simply could not have happened the way Dassey described it.” Though many of Dassey’s statements are incriminating for both him and Avery, it is hard to place much emphasis on his “confessions.” With the deliberate leading of Dassey by the investigators, his low IQ, and his ever-changing stories, there is little reliable information to be gleaned from his hours of interviews. However, the police perceived these interviews as additional proof of Avery’s guilt, though ultimately the prosecution decided not to use any of Dassey’s statements against Steven Avery.

avery14Based on his incriminating statements, the detectives arrested Dassey on March 3, 2006. At that point, he was assigned a public defender by the name of Len Kachinsky. Prior to even talking to his client, Kachinsky held a press conference where he essentially acknowledged that Dassey was guilty. Kachinsky’s next step was to allow this minor, with below average intelligence, to be interrogated again by police detectives outside of his presence. It is hard to conjure up any justification for allowing this “interview” to take place. As if Kachinsky had not violated enough of his client’s rights, he hired an investigator, Michael O’Kelly, to also interrogate Dassey.

During the interrogation, O’Kelly directed Dassey to confess to killing Teresa Halbach; ordered him to draw pictures of the killing, and then called Kachinsky to boast about the confession. As if his professional judgment (and that of Kachinsky’s) could not diminish any further, O’Kelly video-taped the entire interview session. It has never been made clear why Dassey’s own investigator strong-armed him into a taped murder confession.

avery1Due to the conflicts of interest between Steven Avery and Manitowoc County, Ken Kratz, a special prosecutor, was brought in from Calumet County. After one of Brendan Dassey’s confessions, Kratz held a press conference detailing how Teresa Halbach was tortured, sexually assaulted and raped by Dassey and Avery. Kratz’ statements seemed to rob both Avery and Dassey of the presumption of innocence and potentially corrupted the pool of jurors. Kratz’s statements were inflammatory and prejudicial. Further, none of the information he provided to the public was presented during Steven Avery’s trial.

Steven Avery’s trial was moved to neighboring Calumet County. However, other than the prosecutor who was from Calumet County, everyone else came from Manitowoc County. The presiding judge, Patrick Willis, was a Manitowoc County Circuit Court Judge and the jurors were Manitowoc County residents. On March 18, 2007, Steven Avery was found guilty of murder and illegally possessing a firearm, but not guilty of mutilating a corpse.

After Avery’s conviction, Ken Kratz set his sights on Brendan Dassey. Aside from Dassey’s own words, and depending on which of his statements were believed, there was no forensic evidence linking Brendan Dassey to Teresa Halbach’s murder. This is not to say he is innocent; however, if you remove the forced confessions, there is no evidence pointing towards his guilt. Regardless, Brendan Dassey was found guilty of first-degree murder, mutilation of a corpse, and sexual assault on April 25, 2007.

Recent investigations by various news outlets have uncovered information about the Avery jury. Allegedly, one of the jurors was the father of a Manitowoc County Sheriff’s deputy and another was married to a Manitowoc County clerk. One juror claimed that jurors feared reprisal by the Manitowoc County Sheriff’s Department if they returned a not guilty verdict. Most troubling about the jury, when one juror was asked why he voted guilty, he cited evidence that was excluded from the trial, but was present in Kratz’s televised press conference.

avery15Manitowoc public officials ignored the obvious appearance of impropriety when they pursued Steven Avery as a murder suspect. When Teresa Halbach’s Rav-4 was found, Lieutenant Lenk of Manitowoc County Sheriff’s Department arrived at the Avery property before there was even a sign-in sheet for the crime scene. He had access to the vehicle, which was later found to contain Steven Avery’s blood. Lieutenant Lenk found the Rav-4 key in Steven Avery’s bedroom. Further, Lenk was in the garage when the police found the bullet casing with Halbach’s DNA on it, after numerous other searches failed to uncover the casing.

Lieutenant Lenk had the means, motive, and opportunity to plant evidence incriminating Steven Avery. However, there is no clear or direct evidence indicating he or anyone else from the Manitowoc County Sheriff’s Department tampered with evidence. Yet, due to their conscious decision to be directly involved in Steven Avery’s investigation, they left themselves justifiably open to the accusation. The cloud of suspicion grows with the coincidental facts that almost all of the compelling forensic evidence collected on the Avery property was discovered by Lieutenant Lenk.

Though there is considerable evidence against Steven Avery, much of the evidence ties to the 40 acre property itself, rather than specifically to Steven Avery. The location where Teresa’s car and remains were found and her DNA on a bullet casing in a garage do not point directly to Steven Avery, but rather someone living or working on the property. Numerous other family members lived on the property and several had reputations and histories that should have warranted closer law enforcement scrutiny. Regardless of the fact that the initial evidence pointed toward a location rather than a specific person, Manitowoc County exhibited tunnel vision with regard to Steven Avery.

avery8By providing compelling evidence that Manitowoc County deputies likely planted evidence, Steven Avery’s attorneys may well have sealed his guilt. Jurors may have realized exactly how far the Manitowoc County Sheriff’s Department was willing to go in order to administer retribution. They had already helped put Steven Avery in prison for 18 years for a crime he did not commit. With the support of The Innocence Project, considerable favorable media coverage, and two of the best lawyers in Wisconsin, Steven Avery was still facing murder charges. When Manitowoc County’s Sheriff was asked about the accusations of planting evidence, he responded that, “it would have been easier to kill Steven Avery.” Jurors had to be thinking about what would happen to them if they made Manitowoc County look bad again.

Though Steven Avery’s innocence is far from certain, through actions and poor decision-making by individuals in the Manitowoc County Sheriff’s Department, there is clearly reasonable doubt. It is reasonable to think Manitowoc County may have done something unprincipled. It is reasonable to believe Manitowoc County may have sought vengeance against Steven Avery, even if only to ensure his guilt.

avery4Brendan Dassey was not a victim of Manitowoc County, but of over-aggressive police tactics. Dassey is not a credible witness, not even against himself. Without corroborating evidence, there is significant doubt regarding his guilt. However, just because there is doubt does not mean he is innocent. It just does not meet the legal standard. The detectives who interviewed him twisted and turned his mind so much that he probably does not know or remember what he actually did on the night Teresa Halbach went missing.

The real injustice falls upon Teresa Halbach’s family and friends. They must cling to the belief that the persons responsible for Teresa’s murder were held accountable, but they too must have doubts, due to the highly questionable decisions and actions by the authorities in this case. Judgments regarding Avery and Dassey’s guilt or innocence are far from a certainty, but the means which law enforcement utilized to achieve their convictions can and should be judged negatively and suggest a disturbing degree of impropriety that cannot be justified.
Works Cited:

Abad-Santos, Alex, and Lopez, German, “Netflix’s ‘Making a Murderer:’ the case of Steven Avery, explained,” Vox, http://www.vox.com/2016/1/8/10734268/netflix-making-a-murderer-avery, January 23, 2016.

Beernsten, Penny, The Forgiveness Project, http://theforgivenessproject.com/stories/penny-beernsten-usa/, March 29, 2010.

Cleasby, Sam, “The 12 WTF moments in ‘Making a Murderer,’” Metro, http://metro.co.uk/2016/01/05/the-12-most-wtf-moments-in-making-a-murderer-5600879/, January 5, 2016.

Grubbs, Jefferson, “This ‘Making a Murderer’ Timeline Shows Steven Avery’s Long History With Law Enforcement,” Bustle, http://www.bustle.com/articles/133321-this-making-a-murderer-timeline-shows-steven-averys-long-history-with-law-enforcement-infographic, January 21, 2016.

Kertscher, Tom, “’Making a Murder’ compelling, but is it a game-changer for Steven Avery?” Milwaukee Wisconsin Journal Sentinel, http://www.jsonline.com/news/crime/making-a-murderer-compelling-but-is-it-a-game-changer-in-steven-avery-case-b99647809z1-364794271.html, January 10, 2016.

Nededog, Jethro, “’Making a Murderer’ Prosecutor Admits 2 Crucial Mistakes in the Case Against Steven Avery,” Business Insider, http://www.businessinsider.com/making-a-murderer-prosecutor-mistakes-2016-1, January 5, 2016.

Thomas, Michael, “Looking at the ‘Evidence’ in the Steven Avery case,” Exposing the Truth, http://www.exposingtruth.com/looking-at-the-evidence-in-the-steven-avery-case/, December 29, 2015.

Thompson, Christie, “Penny Beerntsen, the Rape Victim in ‘Making a Murderer,’ Speaks Out,” The Marshall Project, https://www.themarshallproject.org/2016/01/05/penny-beernsten-the-rape-victim-in-making-a-murderer-speaks-out#.7ENv3kVHF, January 5, 2016.

Innocence Project, Steven Avery, http://www.innocenceproject.org/cases-false-imprisonment/steven-avery.

Making a Murderer, Netflix, December 18, 2015, https://www.netflix.com/title/80000770.

Reddit Inc., https://www.reddit.com/r/MakingaMurderer/comments/41rre7/steven_avery_jury_trial_transcripts_are_now/accessed January 2016.

WSAW Staff, “Steven Avery case: What did the court documents say?” WSAW, http://www.wsaw.com/content/news/Steven-Avery-case-What-did-the-court-document-say-364171451.html, January 5, 2016.

Click below to view John W. Taylor’s previous intriguing posts:

The Deep Sleeper – Darlie Routier’s Plight for Innocence

Drew Peterson – A Legend in His Own Mind

Not How It Was Supposed To Go: Joanna Madonna and the Murder of Jose Perez

johntJohn W. Taylor writes in the true crime genre at www.truecrimewriting.com. He has written short pieces and articles on the death of Marilyn Monroe, JFK, and Martin Luther King, Jr., among others.  John wrote and published Umbrella of Suspicion: Investigating the Death of JonBénet Ramsey and Isolated Incident: Investigating the Death of Nancy Cooper in 2012 and 2014, respectively. 

John’s interest in the darker side of human nature has compelled him to conduct numerous research and writing projects on various unsolved crimes.  He currently resides in Raleigh, North Carolina. 

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