Indefensible

by Michael Griesbach

  What was it about Making a Murderer that so firmly convinced people that lightning had struck twice, that Steven Avery had been wrongly convicted a second time? And why were they so mad?

  There was only one way to find out. I had to watch the show.

  CHAPTER 2

  WRONGFULLY CONVICTED

  When I first met Laura Ricciardi and Moira Demos, the filmmakers and creators of Making a Murderer, they were graduate students from Columbia University’s prestigious film program. Laura was also an attorney. I had interviewed with them nearly a decade earlier in 2007, not long after the Avery and Dassey trials. Although I was already a veteran prosecutor and a good deal older than they were, I shared their enthusiasm for the Avery case’s enormous potential to expose to a large audience the infirmities of a criminal justice system badly in need of reform, more so, I thought, than any other case that had or is likely to come along again. But none of us, least of all Laura and Moira, I suspect, had the slightest idea that the skill and tenacity with which they approached their work would result a decade later in a worldwide television phenomenon. I’m not even sure that Netflix had introduced streaming video to their customers back then.

  Fast-forward to autumn of 2015, a few months before Making a Murderer aired. I received an e-mail from Ricciardi, and later a call from someone working on her behalf. She was giving me a heads-up that their persistence had paid off. At long last, she and Moira had found a home for their film, though they did not disclose to me that their producer and distributor was the mother of all streaming-video giants—Netflix!

  I was well into my obsession with the Avery case by the time I’d met the future Netflix documentarians, and when I interviewed with them in 2007, it was a cold and bitter time in northeastern Wisconsin, as nearly every scene depicted in their documentary. I was halfway through writing the manuscript for The Innocent Killer’s self-published precursor, with the title Unreasonable Inferences.

  I aimed to focus my book on Steven Avery’s wrongful conviction in 1985 and not on what at that time I confidently believed was his rightful conviction for murder twenty years later. The murder case is the more sensational part of the story—mayhem and murder trump everything else in the world of true crime. But Avery’s wrongful conviction spoke much more directly to the criminal justice system and how it can so badly misfire, which is where my interests lay. I knew, too, that anything that brought more public attention to Teresa Halbach’s murder would be difficult for her badly shaken family to bear. A book that concentrated on the lessons for the criminal justice system from Avery’s wrongful conviction would be the lesser of two evils for them versus a cheap true-crime thriller about her gruesome death.

  A week or so before my interview, Ricciardi, Demos, and I had shared our admittedly sanctimonious disgust at the former sheriff’s and district attorney’s misconduct when they railroaded Steven back in 1985. In retrospect, this is why I was under the impression that my interview with them was to focus almost exclusively upon the wrongful conviction case, and not the murder.

  Our opinions about the murder differed sharply. The physical and circumstantial evidence reported by the media had convinced me—not just beyond a reasonable doubt, but any shadow of a doubt—that Avery and Dassey were guilty as hell. I was confident then that the defense team’s evidence-planting accusation was nonsense, an unfounded allegation that unfairly besmirched the reputation of Lieutenant James “Jim” Lenk and Sergeant Andrew “Andy” Colborn, the two most directly targeted officers whose character was defamed. I had known and worked with Lenk and Colborn for years. They were two of the least likely law enforcement officers I could think of to be involved in any type of misconduct, much less planting evidence to frame an innocent man. I thought Steven Avery had received an exceedingly fair trial, which in the filmmakers’ minds was really the only question that mattered, not whether he was innocent or guilty. At least that’s what I thought at the time.

  The interview started predictably enough. They asked me to recount the brutal assault of Penny Beerntsen on an isolated stretch of Lake Michigan shoreline about ten miles north of Manitowoc. Penny was the victim in the case for which Avery was wrongly convicted in 1985 and is one of the unsung heroes in a case lacking many others, unsung or not. I spoke extensively about the misconduct of the former sheriff and the district attorney who led the charge to falsely convict Steven back in 1985, about three minutes of which would make the final cut for the film

  But halfway through the interview the mood shifted dramatically. Maybe I was overreacting, but I sensed that Ricciardi and Demos believed Avery had been wrongly convicted a second time or, worse, that they would adopt that narrative even though they had to know he was probably guilty. Either way, they appeared virtually certain that local police had planted evidence to strengthen their case, and it seemed to me that they were doing their level best to get me to agree or, short of that, to say something on camera they could later manipulate so it would look that way.

  Now it was less than a week before Christmas, and only a few days after Making a Murderer initially aired. The discomfort I had felt so poignantly during the second half of my interview not quite ten years earlier flooded over me again as I prepared to spend the next several nights, watching the Netflix series that was about to turn our previously unknown little Midwestern town into the center of the Netflix universe.

  * * *

  I sat spellbound as I began watching episode one—not because of its content, but from seeing the places and faces I have contact with nearly every day. It was an audio and visual masterpiece complete with a pitch-perfect piece of haunting music. The effect was Fargo-ish in a way, but more emotionally complex. If only I had not been involved in the Avery story myself, perhaps then I could have simply enjoyed the craftsmanship that made the film so engrossing rather than turn into an increasingly nervous wreck.

  In one of dozens of national media appearances that Laura Ricciardi and Moira Demos would make in the upcoming weeks, Ricciardi told an interviewer that “truth is elusive” in the Steven Avery case, and in some respects she is right. Even the title they, or someone at Netflix, chose could be interpreted in different ways. It might suggest that spending eighteen angry years in prison for a crime he did not commit made Steven Avery into a murderer. Or it may signify a belief that police and prosecutors made him into a murderer by planting evidence to frame him for Teresa Halbach’s murder. The ambiguity of the title seemed to foreshadow a fair-and-balanced account of the Avery story.

  * * *

  It was an emotionally powerful beginning: Steven Avery, walking out of the prison gates in his red flannel shirt, sporting a shaved head, long beard, and twinkling bright blue eyes, reunited with his family on a clear September day, with green grass still covering the gently rolling hills of east-central Wisconsin. His extended family had turned out in full force to greet him at home as Steven’s father, Allan, drove up with Steven in the backseat, smiling from ear to ear. The Avery Salvage Yard, which was also home to Steven’s parents, Allan and Delores, was not filled with darkness and death on that warm September day. Instead, it was filled with happiness and life.

  “I missed you,” said Steven’s cousin as they embraced. “It was like the same old Steve was back,” chimed in a voice-over from the same cousin. “He was happy. He was smiling.” Laughter, hugs, and kisses all around, and a genuine heartfelt excitement filled the air at the salvage yard that day. They may not have slaughtered the fatted calf for Steven, but Allan and Delores Avery’s prodigal son had come home!

  The tone shifted less than a minute and thirty seconds into the documentary. “This was one of the biggest miscarriages of justice I ever saw in twenty years in criminal defense work and thousands of cases,” intoned Reesa Evans, Avery’s public defender from previous charges.

  “But I did tell him be careful. There was just something I felt, Manitowoc County’s not done with you. They are not even close to being finished with you,” added his cousin Kim Duc
at as the video cut to a flock of geese taking flight into a gloomy and threatening-looking sky. As the night wore on, I grew increasingly fond of the birds’ mysterious honking, expertly mixed in with the vaguely foreboding theme music, which together made for an excellent opening and closing to each episode.

  Referring to his client’s pending lawsuit, Walt Kelly succinctly stated the law as it applies to police misconduct. “There is a distinction in the law between simple mistakes, for which officers like that are immune,” Kelly explained, “and purposeful conduct that violates constitutional rights, for which they’re not immune.” Steven Avery appeared on camera, speaking to reporters, and was heard voicing patience and restraint: “Just a little bit more waiting. I waited long enough. A little bit more ain’t gonna bother me.” The video then cut away to court document highlights from Avery’s wrongful conviction lawsuit: targeting Steven Avery, personal hostility, obstruction of justice.

  For the few remaining viewers whose hearts had not been sufficiently filled with sympathy for the protagonist, the camera turned to Judge Fred Hazlewood, who presided over Mr. Avery’s 1985 trial. “The family sticks together. They have a very strong sense of family. They support each other. They do a number of things that are quite admirable,” Judge Hazlewood explained from inside the very courtroom where Avery was wrongly convicted so many years ago.

  I knew the focus of the series was the murder case, but I was surprised how little of the earlier case was included. No doubt my perspective played a role in my surprise. Avery and Dassey’s arrest and conviction for Teresa Halbach’s murder only figures into the last section of my book, and then only in the context of the wrongful conviction twenty years earlier. Still, why would they tread so lightly on the egregious abuse of power by the sheriff and the district attorney in the first case?

  Past midnight, and with a busy day at work slated for tomorrow, I decided to go to bed. I’d have to watch a few more episodes of Making a Murderer to appreciate why its creators were not satisfied with rehashing a thirty-year-old injustice that had already been resolved. Why would people get riled up over that? The hacker group Anonymous doesn’t threaten to reveal ten-year-old e-mails to prove a conspiracy, unless they think something can still be done about the supposed conspirators. Hollywood stars Alec Baldwin to Khloé Kardashian don’t make fools of themselves trying to outdo each other weighing in on an ancient injustice, with “ancient” defined as more than two weeks old. Thousands of obsessed citizens don’t spend untold hours and considerable energy contriving conspiracy theories, some of them spewing hatred and threats of violence against anyone who has the nerve to disagree. Nor do demonstrators take to the street three stories below my courthouse office shouting for justice for Steven Avery and Brendan Dassey. None of this happens unless people are mad as hell and they think they can do something about it.

  * * *

  I heard Steven Avery’s familiar, folksy voice from somewhere off camera: “I really ain’t got much on my record, two burglaries with my friends. We just rode around, get something to do, and we decided to rob a tavern and that . . . was the first time that I got busted with them friends.”

  The camera zoomed into highlights on a court document: crawled into the bar through a broken window, $14.00 in quarters, two six packs of Pabst beer, and two sandwiches.

  Avery’s cousin Kim put an even kinder spin on her cousin’s run-ins with the law: “Stevie did do a lot of stupid things. But he always, always owned up to everything he did wrong.

  “He was always happy, happy, happy, always laughing,” she continued, “always wanted to make other people laugh. I think the people in the outside community viewed him as an Avery, you know, viewed him as [a] troublemaker. You know, ‘There goes another Avery. They’re all trouble,’ ” she summed up as the camera panned to bleating sheep and crying seagulls off in the distance.

  The documentary went on to offer an example of what kind of trouble a young twenty-year-old Steven Avery would get into: “Another mistake I did . . . I had a bunch of friends over, and we were fooling around with the cat . . . and, I don’t know, they were kind of negging it on and . . . I tossed him over the fire . . . and he lit up. You know, it was the family cat. I was young and stupid and hanging around with the wrong people.”

  I have heard this excuse many times before. When a criminal defendant minimizes his conduct by saying he was hanging with the wrong crowd, the hangers-on usually say the same thing: “I wouldn’t have done it, Judge, if I had better friends.” It isn’t a very good excuse and almost never finds sympathy with a judge.

  I thought back to the police report where I had read about this incident years earlier and remembered that there was more to the story than Making a Murderer was letting on. Not quite ten years earlier, I had spent months researching Steven Avery and his family for my first book, and I knew that the cat-burning incident was much more than a childish prank.

  The police report stated that Avery took a cat, poured gas and oil on it, threw it in a bonfire, and then watched it burn until it died. A friend who was present at the time told police that the cat jumped out of the fire, and Avery caught it and poured more gasoline on it before the animal died.

  Thousands of Netflix viewers would never know that Avery intentionally threw the cat in a fire, and watched it burn and suffer a miserable death, managing to score two of the most common psychological signposts for potential homicidal behavior—animal cruelty and a fascination with fire—into a single act. As far as they would know, the cat mistakenly ended up in the fire when Avery was messing around with some friends. Happens all the time, right?

  Avery told the documentarians that he missed his first daughter’s birth because he was, as he put it, “locked up for that cat incident.. . . It kinda sucked. You know, you’re supposed to be bringing your kid into the world . . . and then you gotta miss it.”

  Hmm, I thought as I scratched my head. Interesting way to end a segment about burning the family pet. They had just transformed a deliberate and disturbing act of animal cruelty into nothing more than a harmless accident and suggested that it happened when he was an adolescent when he was actually twenty years old.

  I wondered if ordinary viewers, whose only familiarity with the case was what the documentary chose to show them, would view Steven Avery as favorably as the filmmakers intended. Like every human that ever was or will be, Steven Avery is not some biological specimen that can be placed under a microscope and pronounced as either all good or all bad.

  In fact, on the few occasions I met him, he struck me as polite, even sincere, and with a hint of lightheartedness about him. However, there is another side to Steven Avery that I came to know while researching my book—a darker side that includes his propensity toward violence and sexual deviance. So far, it seemed that the documentarians were trying to redefine Steven’s trouble with the law, and I thought they were smart to do so early on.

  He certainly had racked up a considerable record prior to his wrongful conviction in 1985, and his next brush with the law was a bit more serious.

  He had graduated from torturing an animal to endangering a person’s life, and I was eager to see how Making a Murderer would depict that incident. I’d also read the police report on this case and was familiar with the facts.

  It was January 3, 1985, less than seven months before his arrest in the wrongful conviction case, when Avery rammed his 1978 Ford LTD into the side of a light green Plymouth Volare driven by his neighbor, Sandra Morris, as she drove past his residence. When Morris stopped her car and was getting out, he approached and held her at gunpoint. Morris, by the way, was the wife of a Manitowoc County deputy sheriff. Morris lived right up the road from Steven and his wife, Lori, and she had to drive past their house on her way to work at five-thirty a.m. Her troubles with him had started a few months earlier. He would get up early, grab his field glasses, and peer down the road to see when Morris was leaving. Then he’d wait for her to drive past and, depending on how messed up he was
that day, he’d either rub himself on the hood of the car or expose himself. One time he was wearing nothing but his shoes.

  The January incident was a continuation of his prior behavior, and Making a Murderer gave us a watered-down version I’d soon see. Sandra Morris pulled out of her driveway at the usual time and started driving down the road past Avery’s house. She had her infant daughter in the car that morning, and she planned to drop her off at her parents’ house in town. Just past the Avery residence she looked in her rearview mirror and saw lights approaching from behind. The car seemed to come out of nowhere. It began passing on her left, and then without warning it struck the side of her car, causing her to careen back and forth in the road, but eventually gaining control without sliding into the ditch.

  She came to a stop on the side of the road, thinking that someone had lost control and hit her accidentally. Before she got out of her car, she looked up and saw Steven Avery walking toward her. He was pointing a rifle at her head. He ordered her to get into his vehicle, but she motioned to her daughter on the front seat, and told him that her baby would freeze to death if she left her alone. He then looked inside the car and told her she could go.

  Three deputies arrested him within the hour, and when they searched his house, they found a .30-06 rifle stashed under one of the kids’ beds with a live round in the chamber. Steven Avery even confessed. Yes, he rammed his car into Mrs. Morris’s car. Yes, he pointed the gun at her. And yes, he planned to force her into his vehicle.