Remaking a murderer

There are no two ways about it: Either Steven Avery, Wisconsin’s most famous prison exoneree, murdered a 25-year-old photographer named Teresa Halbach on Oct. 31, 2005, or he didn’t. Either his nephew, Brendan Dassey, was complicit in this crime or he wasn’t.

These questions matter to people all over the world, thanks to the explosive success of Making a Murderer, a multi-part Netflix documentary released in late 2015. Tens of millions of people tuned in to watch. Thousands became amateur sleuths, digging into case files in search of answers.

“It is neither blasphemy nor hyperbole to say that no criminal case since the trial of Jesus of Nazareth had been as closely studied by so many people,” writes Jerome Buting, one of Avery’s defense lawyers, in his new book Illusion of Justice.

The convictions of Avery and Dassey raise profound questions about the integrity of our system for dispensing justice. In 2003, Avery was freed after serving 18 years in prison for a crime he did not commit. Was he wrongfully convicted again a few years later for Halbach’s death, this time with evidence planted by police, as his defense lawyers and the documentary suggest? Was Dassey, a 16-year-old with diminished mental capacity, conned by the cops into making admissions that implicated himself?

Buting’s book and three others set out to answer these questions. Unfortunately for those who like to know things for certain, their conclusions are contradictory.

Illusion of Justice argues that both men are innocent, as does Convicting Avery, by Wisconsin lawyer Michael D. Cicchini. Buting’s book was released late last month; Cicchini’s is slated for release on April 4. Both books include the words “broken system” in their subtitles, reflecting a belief that these cases reflect much larger failings.

Meanwhile, Ken Kratz, the lead prosecutor for Avery and Dassey’s separate trials in 2007, has a new book called Avery, which, as its subtitle proclaims, is about “what Making a Murderer gets wrong.” It joins a book that came out last August, Indefensible by Michael Griesbach, a prosecutor in the county where Halbach was killed, in arguing that the defendants are guilty. Not just probably guilty, but guilty beyond a shadow of a doubt.

But little about these cases resides in this comfortable realm of certainty.

As others have noted, the public response to Making a Murderer is as astonishing as the story it tells. No one, including filmmakers Laura Ricciardi and Moira Demos, would have been surprised if their efforts had been largely overlooked. This was a 10-part, 10-hour documentary released just before Christmas 2015, mostly about a murder that was then 10 years old, involving hardscrabble folk in nowhere, Wisconsin.

Yet in the 35 days after its release, each episode of Making a Murderer averaged 19.3 million viewers. It spawned sprawling online networks of fans and foes, including YouTube posters who believe, apparently correctly, that all they have to do is talk about the Avery and Dassey cases and people will tune in.

Making a Murderer made Buting and his co-counsel, Madison attorney Dean Strang, international celebrities. It won four Emmys, including outstanding documentary or nonfiction series.

And it is, according to Kratz and Griesbach, a load of crap.

The documentary, writes Kratz, “is filled with distortions and omissions—editorial choices that slanted the show to the defense perspective at almost every turn.”

Griesbach calls it “a propaganda piece disguised as an objective documentary.”

Here’s an example of what has them so riled: One clip from Avery’s trial was edited to make it appear as though a deputy answered affirmatively to a question, when he really hadn’t. But the significance of this and other omissions is murky. Like the authors’ fixation on incidents that make Avery look bad but got short shrift in Making a Murderer, its details have little to do with anyone’s actual culpability. Even if the documentary were hopelessly compromised by the filmmakers’ bias, the two could still be innocent. Or guilty.

Avery’s defense attorneys feel the documentary was accurate and fair, especially compared to the statements put forth by the prosecution. When I interviewed Dean Strang in January 2016, during the height of Making a Murderer mania, he offered a full-throated rebuttal to attacks on the series:

“We live in a country in which every time the police department or a prosecutor wants to issue a press release or hold a press conference, the overwhelming majority of media outlets treat what the police or prosecutors say as received wisdom. As if it came down on tablets, from the mount,” Strang told me. “Kratz’s March 2, 2006, press conference turned out to be factually unsupportable, factually refuted by the evidence… And yet, for the 10 months preceding his trial, that was accepted and repeated by the media as the truth about what happened.”

Kratz’s sensational televised press conference was held one day after police interrogators obtained statements from Dassey admitting involvement in Halbach’s death. After admonishing anyone under age 15 to “discontinue watching,” Kratz declared, “We have now determined what occurred” on Oct. 31, a crime for which Avery had already been arrested and charged.

The prosecutor described how Dassey, hearing screams, entered Avery’s trailer to find him covered with sweat and Halbach shackled naked to the bed. Dassey, whom Avery has chided for being too skittish to gut a dead deer, accepted his uncle’s invitation to rape Halbach. Then Avery stabbed her in the stomach. Then Dassey cut her throat. Then Avery began punching her face. Then she was strangled and shot.

Buting finds this scenario incredible (“literally, overkill”), noting that none of it was presented at Avery’s trial. If it had been, he writes, the defense would have “shredded” Dassey’s account. About two months later, Dassey came up with a new version of the crime, in which Halbach was taken alive to Avery’s garage and shot to death.

In his book, Kratz calls this press conference, which was widely criticized by legal experts, his “one major regret” in how he handled the prosecutions. He wishes he had “simply released the Dassey charging document and said nothing at all.” But when I interviewed him on March 2, the press conference’s 11th anniversary, Kratz denied it was prejudicial to the defense: “Anything that was communicated in the press conference was something that would have been disseminated anyway.”

But was Dassey’s story true? Kratz, in our talk, allowed that “clearly, Brendan’s versions were inconsistent,” and argued that he was merely conveying details of Dassey’s just-rendered account. “I don’t know if that was factually wrong or not factually wrong,” he said, declining to confirm that parts of the story he presented seem to have been untrue.

There is plenty of reason to question Dassey’s account. Avery’s trial judge, Patrick Willis, stipulated that “no physical or scientific evidence” ever placed Halbach in Avery’s trailer where she was allegedly raped and stabbed. Not a single drop of her blood or strand of her DNA was found.

Griesbach, however, has a simple explanation for this, albeit one never entered into evidence: “Avery may have had everything—mattress, carpeting, and furniture—encased in plastic wrap.”

Griesbach finds Dassey’s confession convincing, even though he concedes that “for at least some of his responses, he simply told [detectives] what they wanted to hear.”

That point was driven home for millions in a portion of Dassey’s confession shown in Making a Murderer. The two detectives, knowing that Halbach was shot, quiz him at length about what Avery did to her head. Dassey responds with a series of guesses. “That he cut off her hair.” “That he punched her.” “Cut her… on her throat.” Finally, one of the detectives blurts out, “Who shot her in the head?” Responds Dassey, “He did.”

During this interview, Dassey so little understood his circumstances that, after admitting his involvement in Halbach’s rape and murder, he expressed concern about getting back to school because “I have a project due in sixth hour.”

In August, U.S. Magistrate Judge William Duffin overturned Dassey’s conviction, ruling that police made repeated false promises during his interrogations, that “when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth amendments.”

Kratz, in his book, regards this ruling with contempt, saying the judge “seemed, to me, determined to spring Dassey—logic and applicable law be damned.”

The state of Wisconsin, represented by Attorney General Brad Schimel, is appealing Duffin’s ruling, and successfully intervened to keep Dassey from being released as these proceedings play out.

While Dassey’s conviction hinges on a single piece of evidence—his confession—the case against Steven Avery is much more complex.

For those who consider him guilty, here are some relevant facts:

On Oct. 31, 2005, Avery called to have Halbach take a photo at his family’s scrap yard. He apparently tried to hide who made the call, and gave inconsistent accounts of his interactions with Halbach. Her car was found on his property, partially covered; his blood was found in six places inside, his DNA found on the hood latch. Halbach’s car key, containing Avery’s DNA, turned up in his trailer. Her burned remains and electronic devices were found on his property. A bullet containing Halbach’s DNA was found in his garage.

The defense suggests someone else killed Halbach and burned her body. This person moved her car and partial remains to Avery’s salvage yard, knowing his pending $36 million lawsuit against Manitowoc County over his earlier wrongful conviction would make police eager to pin the crime on him. The police, convinced that Avery was guilty, planted the key in his trailer, his DNA in her car, and perhaps the bullet fragment.

“On close inspection,” Buting writes, “virtually every piece of what looked like damning prosecution evidence was riddled with flaws. Taken together, they form a panorama of rampant bias, conflicts of interest, misconduct, sloppy practice, and grotesque overreach.”

The defense argues that two members of the Manitowoc County Sheriff’s Department, Lt. James Lenk and Sgt. Andrew Colborn, had opportunity and motive to plant this evidence. Buting stresses in his book, as he did at trial, that no one is accusing the cops of murder. But at trial Kratz said the defense theory meant believing that police “killed her, mutilated her, burned her bones, all to set up and to frame Mr. Avery.” He echoes this theme in his book.

In our interview, Kratz defended those statements, saying the defense was “all over the board on who did what” and thus he was justified in conveying that the cops were being accused of the killing. (Griesbach goes even further, alleging that the defense theory implicates cops from four jurisdictions, the state Justice Department, the Wisconsin crime lab, and three prosecutors, among others.)

At Avery’s trial, Kratz also told the jury that “all of the evidence points to only one person”: Steven Avery. But at Dassey’s trial, a few weeks later, the prosecution argued the crime was committed by two people.

Kratz told me his hands were tied by the judge’s ruling that information from Dassey’s confession could not come into play. Telling the two juries different things was, he said, his “only option.”

In his book, Griesbach declares early and often that he finds the idea of Lenk and Colborn planting evidence offensive, repeatedly lamenting the damage done to their reputations. He knows them personally, and says they are “two of the most honest cops you could find.”

Kratz writes the deputies had “virtually no connection” to Avery’s 1985 assault case and no motive to frame him. But they had enough of a connection that both were deposed in Avery’s civil suit just three weeks before Halbach’s disappearance. Kratz acknowledges, both were “instructed that, as members of the Manitowoc Sheriff’s Department, [they] would not be allowed to search any area of the property on their own.” They would need to be chaperoned.

It was Lenk, in an admittedly unchaperoned moment, who discovered Halbach’s car key in plain view on the floor in Avery’s trailer, on what Buting says was the seventh time it was “thoroughly” searched. Kratz contends the earlier searches were cursory and the key became dislodged when Colborn roughly interacted with a bookcase.

In fact, Kratz argues that “any cop smart enough to set up a man for murder… would certainly be smart enough to know that he should not find the planted evidence himself.” Thus the fact that Lenk and Colborn found the key, he says, underscores the credibility of their account.

The most damning evidence against Avery were his bloodstains in Halbach’s car. The defense contends that deputies had access to a vial of Avery’s blood in a police storage locker. It dismisses as unreliable testing that failed to find the presence of a preservative added to the vial, performed on three of the six stains.

Buting, in his book, hints that improved testing could yet prove the bloodstains contain this preservative, known as EDTA, indicating they came from the police vial. If this were to happen, would Kratz regard this as evidence that Avery was set up?

“If all six of those stains had EDTA in them, yes,” he told me. But if any of them do not, he wouldn’t. For instance, Kratz said, if the tests did not show EDTA in the blood found near the car’s ignition switch, that would show there was “active bleeding of Steven Avery sitting in the driver’s seat of Teresa Halbach’s vehicle.”

The suggestion appears to be that the cops may have planted some pilfered blood but not all of it.

Controversies also rage over other bits of evidence. Why would a guy who owes his freedom to DNA be so careless about leaving it in Halbach’s car? And why did he not promptly dispatch the car into oblivion using the crusher at the salvage yard? Cicchini says the prosecution requires people to believe “the same man who was dumb enough to park a car on the very edge of his property—the one place it was sure to be discovered—was smart and skilled enough to eliminate Halbach’s blood and all traces of her DNA from the trailer and garage.”

Both Cicchini and Buting use their books to sharply critique the justice system as slanted against the accused, especially after a verdict is reached, no matter how questionable. They cite Avery’s conviction for the 1985 assault as an example of how the system can get things wrong and how resistant it is to admitting error. Police steered a traumatized rape victim into identifying Avery and ignored evidence pointing to another suspect, a known sexual predator. A jury disregarded the complete lack of physical evidence and 16 witnesses who placed Avery far from the crime.

When crime-scene DNA did not match either Avery or the victim, the trial judge, who earlier stated that such a discovery would constitute “highly significant new evidence,” changed his mind. He denied a request for a new trial, dismissing this discovery as unimportant. A state appeals court agreed. Not until the DNA was matched to the known sexual predator was Avery set free.

Though he ultimately concludes that Avery and Dassey are guilty, Griesbach unearths disquieting information about another potential suspect: Wolfgang Braun (a pseudonym), whom he personally prosecuted for an incident of domestic violence that occurred one week after Halbach’s murder.

The victim, Braun’s wife, “told our office that she suspected her husband was involved in” killing Halbach. She reported finding another woman’s panties hidden in their house, as well as a gasoline can “with what looked like blood on it” and bloody surgical gloves. She said her husband had gone to the auto salvage yard on the day Halbach disappeared and returned in a huff about a “stupid” photographer; he had a cut finger and scratches on his back.

Griesbach says the woman related that Manitowoc County Sheriff’s Department officials, when apprised of her concerns, said they “didn’t have time for such nonsense.” She even purportedly “turned over some physical evidence to one of the detectives, who seemed none too interested in following up.” Griesbach says his own review concluded that this man, who has since moved out of state, is “dangerous and depraved.”

In his book and in a recent interview, Griesbach says he confirmed that this information was provided to Kratz and forwarded to defense attorneys Buting and Strang. He suggests they thought little of it, as does he. Strang, in an email, confirms the defense was “given some information about ‘Braun’ that was sufficient to alert us that he might have been an overlooked suspect.” But much of what the defense learned about Braun, he says, came “only after Mr. Avery’s trial.”

Avery’s new attorney, Kathleen Zellner, has filed a motion seeking new scientific testing that states Avery is “completely and totally innocent” of killing Halbach; new testing is being done. Filmmakers Ricciardi and Demos are working on a new season of Making a Murderer for release late this year.

There’s a reason Making a Murderer is so popular, and why books about the subject find receptive audiences. It’s because justice matters, for Teresa Halbach, for Avery and Dassey, for the accused cops. And based on all available evidence, we can’t trust the courts to get it absolutely right.