Indefensible

by Michael Griesbach

  This certainly wasn’t the story I was observing being played out in front of me. Ignoring many of the facts outlined above, Making a Murderer was using unscripted, but edited, video footage from Sandra Morris’s deposition to cast her as the villain and Steven Avery as the victim. The storyline seemed to be implying that he acted out of frustration and rammed into her car because she had been spreading lies about him while out drinking at all of the local taverns.

  To say I was taken aback would be an understatement. It is not often that the victim is blamed when recounting a past crime, especially in today’s climate. But this is the impression I got.

  * * *

  DA Denis Vogel, who would be responsible for Steven Avery’s wrongful conviction less than a year later, rightly threw the book at him this time, charging two counts of endangering safety by conduct regardless of life as a repeater, one count for the mother, Sandra Morris, and one for her child, and another charge of felon in possession of a firearm. By virtue of Avery’s prior convictions, he was a “habitual offender” under state law, so the prosecutor dutifully tacked on the appropriate penalty enhancer, increasing the maximum sentence on each count by six years. Avery faced a maximum sentence of forty-eight years in prison, but bail was set at only two thousand dollars and Avery’s mom and dad posted it right away. Judge Fred Hazlewood, who would sentence him to thirty-two years in prison for what would become the wrongful conviction case more than a year later, gave him six years concurrent at the same hearing. Routinely, if not understandably, overlooked by most of the media accounts, from the moment Steven Avery was exonerated until this very day, he would have served six of the eighteen years in prison for his wrongful conviction even if he had not been wrongly convicted.

  Avery had committed some stupid crimes over the years, but accosting the wife of a deputy sheriff was one of the most foolish. The men and women in blue, or brown in the case of the Manitowoc County Sheriff’s Department, pay close attention when one of their own is the victim of a crime. Right or wrong, you don’t victimize the wife of a deputy sheriff and expect it to go unnoticed. Cops are like family, they have to be, given what we ask them to do, and part of being a family is to watch each other’s back. But the close-knit nature has its downside, an example of which was made tragically clear in our sheriff department’s investigation of the assault and attempted murder seven months later that resulted in Avery’s wrongful conviction.

  With his crime against Sandra Morris still fresh in their minds, the sheriff and a few others jumped to the unwarranted conclusion that he was the perpetrator in that case, too. As one of the deputies put it in a deposition twenty years later, there was “talk among the officers” that Steven Avery might have been the assailant. As I will show later in this account, the sheriff, the female deputy who spoke first with the victim, and the department’s eccentric police sketch artist took their suspicion far beyond talk.

  * * *

  I was looking forward to seeing how the documentary would handle Avery’s wrongful conviction in 1985. I’d spent the better part of three years on weekends and in the early-morning hours before going to work, researching and writing about Manitowoc law enforcement’s darkest hour. Up until recently, Wisconsin enjoyed a reputation as a clean state with little corruption, at least compared to our neighboring state to the south with its corrupt Chicago political bosses and their connection with the mob. To me, Avery’s wrongful conviction remains one of the grossest miscarriages of justice in Wisconsin.

  I also knew I would be in this part of the documentary. Having my fair share of vanity, but hopefully not more, I was anxious about how I’d come off. It’s not that I had high expectations. Borrowing the words posted on my Facebook page from another viewer, I would be satisfied as long as I did not make an “utter fool” of myself.

  Photo taken July 28th, 1985, read the on-screen caption, referring to a photo of a beaming Steven Avery, posing with his family and new twin boys, taken one day before the assault of Penny Beerntsen. The camera panned to rolling waves on the shoreline, as I began recounting a series of events that would forever change the course of so many lives. I explained how Penny went to the beach with her husband, Tom, and their two young children that day. I explained how in addition to managing the couple’s charming candy store and ice-cream parlor in Manitowoc’s touristy downtown, she was also a physical fitness instructor at the local YMCA. On this day she started off on a six-mile jog along an isolated stretch of Lake Michigan shoreline around three o’clock. I told the viewers about the man wearing a black leather jacket and how odd that was on what was probably an 85-degree day. He made a comment to her as she passed him, about a half mile into her run. I finished my part, describing how she could see him up ahead on her way back, but this time the man was standing directly in her path.

  “To get away from him, she ran into the water, but he grabbed her and dragged her off into the woods. He knocked her down. She was clawing at him and he attempted to rape her, but he didn’t succeed in penetrating her,” continued an attorney that would represent Avery years later. Reesa Evans, his public defender, could be heard next, describing the more graphic details of how the man ripped Penny Beerntsen’s clothes off, sexually assaulted her, beat her up, and then basically left her for dead.

  Having adequately described the terror Beerntsen encountered on the beach that day, the documentary then shifted to Avery’s wrongful conviction and depositions being taken in preparation for his subsequent thirty-six-million-dollar lawsuit. His attorneys in his wrongful conviction lawsuit, Walt Kelly and Steve Glynn, were featured prominently in this part of the program.

  After Penny Beerntsen was taken to the hospital, it turned out that Sandra Morris’s friend Judy Dvorak was the deputy sheriff who was assigned to go to the hospital. This is where the Sandra Morris matter made a difference. When Penny Beerntsen described her assailant, Judy Dvorak said, “That sounds like Steven Avery.” Walt Kelly said this observation into the camera, in his engaging voice, accompanied by his equally engaging personality. It looked like they were filming in the same conference room in Kelly’s office where I’d spent the better part of an afternoon with him and Glynn several years earlier in preparation for writing The Innocent Killer. Prosecutors or not, they gathered from our earlier conversations that I shared their opinion that what happened to Steven Avery back in 1985 wasn’t just a mistake but the product of deplorable official misconduct.

  I was, and remain, grateful to them for their openness and for so generously sharing their time.

  Making a Murderer’s use of unscripted audio from recorded jail telephone calls and police dispatch tapes, as well as video from court hearings and depositions, is part of what makes it so captivating, and the next scene did not disappoint.

  Former Manitowoc County detective Gene Kusche was deposed in Steven Avery’s wrongful conviction lawsuit on October 26, 2005, just ten days before the discovery of a partially concealed RAV4 at the Avery Salvage Yard would catapult the Avery case into national headlines. Thanks to Making a Murderer, I was now watching Detective Kusche’s videotaped deposition ten years later in the comfort of my living room at eleven-thirty on the Monday night before Christmas, 2015.

  Walt Kelly was questioning Kusche, who had met Penny Beerntsen at the hospital just a few hours after she was brutally assaulted. He had developed a composite sketch of her assailant.

  With eyes nearly swollen shut, the victim’s vision was blurry, but the sheriff, who knew Penny and her husband, and should have stayed out of the investigation, was determined to find her assailant as fast as he could so he could bring him to justice. Having leapt to the conclusion that Steven Avery was the assailant based upon her description, which it turned out did not match Avery that much at all, the sheriff ordered one of his deputies to retrieve Avery’s most recent mug shot taken seven months earlier. The deputy brought it to the hospital, where the sheriff stuffed it into his pocket approximately thirty minutes before Detective Kusche started working
on his masterpiece composite. I could almost feel Kusche’s blood pressure rising as I was watching the former detective squirm under Kelly’s blistering interrogation.

  “I have one large framed composite drawing, if we could bring that up on the table and put it in camera range,” Kelly instructed as he asked Kusche whether he was the one who framed it.

  “It was the only one I ever did that was used in a court case. And I thought it’d make an interesting display in my office.”

  “Would you agree with me,” Kelly continued, “that it’s pretty remarkably coincidental that that would depict Steven Avery’s January 1985 mug photo, which was available to you that evening?”

  Kusche tried to deny it, but the photos, when placed side by side with his trophy, belied his denial.

  Those of us who have closely examined Steven Avery’s wrongful conviction case are convinced that Detective Kusche drew the composite sketch off Avery’s mug shot. He had little training and even less experience. Fred Hazlewood, the presiding judge in the 1985 wrongful conviction case, referred to the two images as bearing an “uncanny resemblance” to each other, made all the more strange since Avery’s hair was different on the day Penny Beerntsen was assaulted, and the drawing looking more like his mug shot taken six months earlier. Kelly put it this way in Making a Murderer:

  “We were able to present, embarrassingly, the difference between an older photograph and what we then had, which was the photograph from that night as to how Steven Avery actually looked. That opened the door to us being able to argue that Kusche drew the composite from the photograph of Steven Avery that was already in their files. And to argue that . . . that never would’ve happened without the sheriff’s participation as well. In other words, they made the case against Steven Avery that night themselves.”

  Watching all of this unfold on television was an odd experience for me. It was fascinating and disappointing at the same time. Fascinating by virtue of seeing the faces of the main characters in the wrongful conviction story and a visual portrayal of the various roles they played, but disappointing that some of the most compelling facts were left out. I imagine it’s how authors whose books have been made into movies feel—the movie did not do justice to the content in their book.

  There was no mention, for example, of Penny Beerntsen receiving disturbing telephone calls from a man who, in hindsight, she suspected was the real assailant, and not Steven Avery. Or the day when the district attorney told his staff that Gregory Allen, the real assailant, could not have been the perpetrator because he was on probation with an airtight alibi, a statement that turned out, like so much in the wrongful conviction case, to be a misstatement of fact, and a serious one at that. The list goes on, but more on that later.

  Still, Making a Murderer was a visual masterpiece, and the next scene in episode one drew me in further.

  A short clip was shown from September 11, 2003, the date Avery was released from prison after DNA proved his innocence.

  “I feel free!” he said, laughing, to a throng of reporters on a clear late-summer day at the moment of his release while the prison gate buzzed in the background.

  “When I left the prison, the anger left,” he said somewhere off camera as the moving scenery suggested that he was on his way home after eighteen years. “It was gone. It stayed there behind them gates. It didn’t come out with me,” he continued, in my view, untruthfully.

  The video returned to his welcome party, outside in the country, on that same gorgeous late-summer day.

  “How you doing?” asked a male friend or relative.

  “Oh, hello,” Avery replied sincerely.

  “How’s it feel?”

  “It feels wonderful.”

  When a television reporter asked Avery whether he forgave the victim, he replied both graciously and accurately:

  “It ain’t at all her fault, you know. Honest mistake, you know. I mean, most the time, I think the cops put it in her head more.”

  Episode one was almost over. With another busy day at work tomorrow, I decided to turn in early. I still had a lot of hours left to watch, but already I was surprised by how engrossed and fascinated I was. I looked forward to sitting down after work tomorrow night to a Making a Murderer marathon.

  As the final scene played out, I didn’t realize that I’d had a pretty good idea of what the answer was to my question from just minutes earlier, and I had it before the credits had even started rolling.

  “They weren’t just gonna let Stevie out,” one of Avery’s cousins said into the camera. “They weren’t gonna hand that man thirty-six million dollars. They just weren’t gonna do all that. And something in my gut said they’re not done with him. Something’s gonna happen.”

  “Do we have a body or anything yet?” An officer’s call to dispatch was overheard over his siren wailing in the background.

  “I don’t believe so,” the female dispatcher replied.

  “Do we have Steven Avery in custody, though?”

  CHAPTER 3

  HIJACKED

  The courthouse was abuzz all day with office workers hovering around their colleagues who had watched enough episodes of Making a Murderer to have its desired effect. I was swamped with preliminary hearings and plea dates, so I only caught bits and pieces of conversations. But between the little I did hear and the excited tones of voice and body language from those engaged in the conversations, there was no doubt that the documentary series had struck a chord.

  After work, but before settling in with Making a Murderer for another night, I checked my book’s Amazon page. I was curious what impact, if any, Making a Murderer was having on my reviews and, I’ll admit it, my sales, too. I had put two and a half years into researching and writing it and was interested in seeing what readers thought and if opinions had changed since the series debuted. I noticed that sales were up, but what caught my eye even more was that about a dozen reviews had been posted in the last few days. Typically, one or two had trickled in every other week.

  It was the beginning of a deluge of negative reviews, all of them one star and many of them saying the same thing. It would drive The Innocent Killer’s Amazon customer review ranking, a key factor for sales, from four stars, where it had steadfastly remained since its release eighteen months earlier, to barely over two—all in the space of three or four weeks after Making a Murderer aired.

  That the book was a waste of time and money was a common theme.

  Don’t waste your money! If I could give this no stars, I would! wrote one reviewer, who had to settle for clicking the one star button since zero was not an option.

  Waste of time unless you want fiction, 0 out of 5 stars, wrote another, also thwarted by the inability to select zero.

  I was also a liar:

  The only truth to this story is Griesbach is a liar.

  Lies, lies and more lies. Doesn’t deserve even one star!!!

  Guy proves himself to be a liar by the end.

  And one reviewer simply wrote: Worst book ever.

  Amazon added, 7 of 12 people found this helpful.

  It came as no surprise when I found out later that these and a slew of similar reviews to come were part of an online campaign to sabotage my book. A member of the Justice for Steven Avery and Brendan Dassey Facebook group, who may or may not have actually read the book, obviously did not like what I had to say. He posted a call to action on the group’s Facebook page, urging its members to write a damaging review to deep-six my book.

  Posts on other forms of social media were more personal, with not a small number of them filled with venom and hate. Here’s an exceptionally enlightening post, that besmirches the character of both myself and special prosecutor Ken Kratz, who was appointed to handle the trial owing to our office’s conflict of interest from the 1985 wrongful conviction case:

  You know what Mr. Griesbach, you’re a scumbag! I just watched your interview on Dateline. You are perpetuating the disinfo against Steven Avery. You do not dare say a word abo
ut the dishonest methods used by Kratz. I pray you all face justice and I pray Steven and Brendan get a front row seat. We all reap what we sow. And remember Mr. Griesbach that the love of money is the root of all evil. Enjoy your interview earnings. I pray they put you in the same cell with Kratz.

  Another person who posted on Facebook more quickly got to the point: Get fucked Michael Griesbach. I wouldn’t take your book for free.

  They even hijacked my book’s Facebook page and turned it into a forum to discuss their conspiracy theories and attack me for having the nerve to disagree with them. Such was the venom and hate that was one of many unforeseen consequences of Making a Murderer.

  I was less angry than amazed at their intolerance and their unwillingness, or perhaps inability, to consider arguments to the contrary. Figuring I should be able to express my opinions on my own Facebook page, I replied to a few of their accusations early on. I thought, naively, that reason and logic might change a few of their minds, or at least show that there might be another side. But rational thought carried little weight with those who developed such deeply personal views about Avery’s and Dassey’s guilt. They were on a mission. They had become zealots.

  * * *

  When I wrote my book years earlier, I spent much more time researching Steven’s 1985 wrongful conviction than I did on his arrest and conviction for murder two decades later—and then only in the context of how Steven was nearly acquitted because of the actions of the former sheriff and former district attorney. I considered the murder only as it related to the earlier wrongful conviction. It was not the story I was interested in.

  Besides, I thought Avery’s and Dassey’s guilt was so obvious that there was no need to dig deeper into the murder case to confirm their guilt. In a dramatic press conference almost four months after Avery’s arrest, special prosecutor Ken Kratz had all but destroyed Avery’s defense that the police had planted evidence in an attempt to wrongly convict him again.