Kratz, who was never one to shy away from the media, spared none of the gruesome details of a confession the police had elicited earlier that day from Brendan Dassey, Avery’s nephew and accomplice. It was the most dramatic event since Teresa Halbach’s RAV4 and charred remains were found at the salvage yard and it was carried live on TV.
The prosecutor’s words were unlikely to reach the tender ears of children, since they were broadcast in midafternoon during soap opera hours, but he suggested that anyone under the age of fifteen should leave the room, ensuring no doubt that the few kids who were watching would do just the opposite.
The details could not have been more horrific. Police had long suspected that Dassey knew more than he was letting on, and after months of denials he finally came clean. As police and prosecutors uncouthly refer to defendants’ confessions, Dassey had puked all over himself. It was the stuff of a cheaply made horror film, except this was real.
Kratz recounted the events as Dassey described them to the investigators. Dassey got off the school bus at the usual time, about three forty-five and found a letter addressed to his uncle in the mailbox. As he walked up to his uncle’s trailer, he heard a female voice inside screaming, “Help me!” When he answered the door, Steven Avery was “covered in sweat.” He invited his nephew inside and asked him if he wanted to “get some of that stuff.”
Brendan Dassey walked into the bedroom and saw Halbach naked and bound faceup on the bed with handcuffs and leg irons. Avery told him he already raped her and wanted to continue, encouraging him to join in. Halbach cried and pleaded with him, begging him not to do it, to let her go, and to get his uncle to stop. But instead, Dassey got on top of her and raped her for about five minutes while his uncle watched from the side.
Then if it’s possible, it got even worse. The two of them went into the living room and watched TV for ten to fifteen minutes, Kratz explained. “That’s how you do it,” Avery said, telling his nephew he was proud of him. While the TV played, Avery talked about killing Halbach and burning her body. He returned from the kitchen a few minutes later, carrying a knife with a six- to eight-inch blade. Then they returned to the bedroom, where Avery told his victim he was going to kill her. He stabbed her in the stomach and handed the knife to his nephew and told him to cut her throat. After he did as he was told, Avery told him to cut off some of her hair.
Having given up trying to keep his emotions in check by this point, Kratz told viewers that Avery then went over to Halbach and strangled her. Uncle and nephew took off the shackles and tied her with a rope and took her to the garage, where even though Dassey believed she was already dead, his uncle shot her about ten times with a rifle, including a couple of times in the left side of her head. The duo then threw Halbach’s body onto a fire pit, hardly twenty yards outside of Avery’s bedroom window, behind his garage, which was already burning when Dassey had come home from school.
They put tires and brush on top to accelerate the fire, and while her body burned, they drove her RAV4 to the edge of the salvage yard and hid it from view. Avery later told Dassey that he returned to the fire pit within days and broke up some of her bones with a shovel, and he then buried them two to three feet from the fire toward the garage. He also used a bucket to carry some of her remains and put some by a steep hill at Radandt’s, a neighboring quarry pit.
The prosecutor concluded his remarks by telling viewers that Dassey admitted he should have done something to stop his uncle, but he forced him to do it and threatened to stab him if he told anyone. When one of the detectives asked why he participated, Brendan Dassey replied, “I wanted to see how it felt . . . sex.”
* * *
A decade earlier I had watched the press conference with my colleagues at the office on a television set in our conference room. Our thoughts went immediately to the Halbach family. When Teresa Halbach’s remains were found in the fire pit, it was obvious that she’d met a horribly violent end, but other than Brendan Dassey and Steven Avery, nobody knew precisely how she died or the extent of her suffering. The fact that she had been raped by her assailant was a safe assumption, but the details of the assault and her subsequent torture went beyond what anyone imagined.
Had Teresa Halbach’s family watched the press conference? I couldn’t imagine that Kratz or his victim witness coordinator hadn’t first met with them in person to tell them the news. Or had they requested months ago not to be informed if the details of her final hours ever became known? That would be impossible, given the extent of the media coverage, and besides, I’m sure they wouldn’t want to remain in the dark: “Better the devil you know than the devil you don’t.”
Brendan Dassey’s excruciatingly detailed account of the madness and horror Teresa Halbach faced in the final hour she spent on this earth, how two depraved souls had tortured, raped, and murdered her, and then disposed of her body in a fire, changed everything. After hearing Kratz’s press conference nobody with an ounce of common sense bought the evidence-planting claim of the defense any longer—except those who knew something about false confessions.
Such was my mind-set when I sat down and waited for episode 2 to start streaming on Netflix, for what I thought would be an interesting but not terribly revealing evening at home.
* * *
October 31, 2005 Teresa Halbach, on a phone, read the caption as Making a Murderer began.
“Hello, this is Teresa with Auto Trader magazine. I’m the photographer and just giving a call to let you know that I could come out there today, um, in the afternoon. It would probably be around two or even a little later.... Again, it’s Teresa. If you could please give me a call back and let me know if that’ll work for you.”
When I look back at it, this was the point in the documentary when my focus shifted and would mark the beginning of a steady deterioration in my confidence level of Steven Avery’s guilt. I would soon find myself doubting much about the Avery case that I’d assumed for years to be true.
Notwithstanding the impression the documentary had just left by playing the recording of Halbach’s call, Avery had lured her to the salvage yard that day—at least that’s what the state had argued at trial, and what I believed to be true. Avery called her employer and requested “that photographer who had been out here before” and then followed up with three calls to her cell phone, blocking his identity on two of those calls with the *67 feature on his phone. But the waters were being muddied—as only a good defense lawyer at closing argument or a recording showing tone of voice and inflection can accomplish. It had become evident that Teresa Halbach knew exactly where she was going and whom she was meeting at the salvage yard that day.
The fact that Halbach left a message that day doesn’t disprove the prosecution’s contention that she was afraid of him. It’s nothing out of the ordinary for someone who is providing a service to confirm with her customer that she will be available at a certain time. But still, the tone of her voice and the very fact she called suggested that perhaps she was not as afraid of Steven as I had come to believe.
I had the impression from media accounts, and from what I’d heard from some of the detectives, that she was apprehensive about going to the salvage yard that day because on a prior occasion Avery had come outdoors wearing only a towel. Would I have been less certain about his guilt, had I known that Teresa Halbach left him a message that morning and did not sound nervous at all?
If guilt or innocence was decided on the basketball court instead of a court of law, some trials would be called before the opening tip-off, because one team, usually the prosecution, would have the clear advantage in size and strength, while the opposing team would be left to play scrappy defense with no plays to rely on for its offense. Cases with overwhelming evidence of guilt rarely go to trial, and when they do, it means that one or both parties were being unreasonable in plea negotiations and refused to settle the case. Either that or the defendant had nothing to lose.
Not so with the Avery case. From the very beginning the g
ame was destined to go into overtime. The defendant actually had a case, and he had hired a dream team of attorneys who could pitch to the jury a credible theory of the case. Oddly, much of their argument would be derived from the same pieces of evidence the state would use to prove Steven Avery was guilty. Where the state would introduce evidence of a key, a bullet, and some spots of the defendant’s blood in the victim’s car as proof of his guilt, the defense team would use the same evidence and, to continue the basketball analogy, cry foul. I could almost hear the defense lawyers proclaiming, “It’s a frame-up, ladies and gentlemen, the cops are up to their dirty tricks again. It’s obvious they planted this evidence and are trying to wrongly convict Mr. Avery again!”
But Steven Avery and Brendan Dassey had been found guilty nearly a decade earlier and the Wisconsin Court of Appeals had affirmed their convictions, in both of their cases. So why did it matter if a TV documentary suggested they might be innocent, or that I’d learned a few things myself that night that I wished I’d known before writing my book—a few that made me scratch my head and wonder if I really knew the truth for sure? Were Steven Avery and Brendan Dassey guilty or not? As I would discover as the night wore on, I no longer felt entirely sure.
* * *
As the night slowly crept into morning, scene after scene depicted in the documentary made me wonder even more. Here was Avery on the phone speaking to an unknown party on the other end.
“I’m doing good. I been working every day almost, waiting for Jodi to get out. She got locked up . . . drinking, you know, driving. I hollered at Jodi quite a few times to stop drinking. I guess it sunk into her because she did stop and she’s a different person now. I gotta give her a lot of credit. When Jodi gets out, hopefully, we can set a wedding date.” (Jodi Stachowski was Avery’s loyal girlfriend and fiancée at the time of his wrongful conviction lawsuit and subsequent murder charge.)
Then Avery was heard speaking on a more recent phone call from jail, to the documentarians, most likely.
“A lot of people told me to watch my back. Most of the time I didn’t even believe ’em. But then, sitting and doing depositions, I don’t know, it kinda changed my mind. They were covering something up. And they were still covering something up. Even with the sheriff who’s on there now, he’s . . . covering something up.”
By the end of the night I had seen clips of videos from several of the officers’ depositions and, I had to admit, they looked like they were being defensive. They were not happy about being grilled by a roomful of attorneys concerning a very black mark on their department, especially not with Steven Avery sitting there, watching them squirm. It’s a rare cop who does well when the tables are turned, when they are the one on the receiving end of a blistering interrogation by their accusers.
Most people do get nervous when being deposed. It’s not much different than testifying in court, especially with the lens of a video camera peering into your eyes from three or four feet away. You are sworn under oath and intense lawyers start by grilling you about uncomfortable topics that you may or may not know anything about. But as I tell witnesses before they testify during trials, if you stick only with what you know and tell the truth, you have nothing to fear. If you don’t understand the question, say that. If you don’t know the answer, say that. And by all means, don’t let the lawyers get under your skin!
On the other hand, nearly all of them looked more defensive than they should have if they had nothing to hide—at least in the video clips the documentarians chose to include in the series. When I later watched the complete video of the depositions of the officers who were most directly accused of wrongdoing—either in the first Avery case or in the second—my concern that they had something to hide, though significantly reduced, was not completely alleviated. This was not simply a case of only selective editing to make them look bad.
They say lawyers are the worst witnesses on the stand. We’re either too wordy, too full of ourselves, too prone to analyze questions before we respond—or all of the above. But lawyers can have their fair share of these occupational hazards, and still be a halfway decent witness on the stand. On the three or four occasions I had to testify, I did not find it difficult at all. It helps, of course, if you have no skin in the game, which is the position I was in when it was my turn to be deposed in Steven’s wrongful conviction lawsuit.
Almost a year to the day after Steven Avery was exonerated, my boss, DA Mark Rohrer, and I were both subpoenaed to appear for depositions at the local branch of a large Milwaukee law firm. Walt Kelly, one of Avery’s lawyers who was prominently featured in the early episodes of Making a Murderer, would be our inquisitor that day.
Whether at trial or in depositions, when it comes to grilling reluctant witnesses, Kelly is one of the best. He’s an aggressive attorney, but he’s not just a hired gun. Kelly passionately believes in his client’s cause, and to the extent he pushes the limits of civil advocacy, that’s why. His gray beard and piercing blue eyes match the personality of this aging but still vibrant activist of the sixties, and although we’d never met, I liked him immediately. Besides, my feelings about what happened back in 1985 weren’t a secret. I’d been open with the Wisconsin Department of Justice in the DOJ’s independent review of the circumstances surrounding Steven Avery’s wrongful conviction, and I intended to be the same the day I was deposed.
I walked into a not-big-enough conference room, where a crowd of red-eyed and weary attorneys were sitting around a table with pens and legal pads poised in front of them, ready to have at their next victim. In addition to Manitowoc County, the lawsuit named Denis Vogel, the former district attorney, and Tom Kocourek, our former sheriff, as defendants, both personally and in their official capacities as county employees. Since each party had his own attorney—including Walt Kelly for Steven, two each for Vogel and Kocourek, one for Manitowoc County, one for its insurance carrier, and one for Mark and me provided by the DOJ—when I started adding up the legal fees I gave up when I reached over twenty-five hundred dollars an hour.
I sat down in the witness chair—the one with the video camera positioned three feet in front of my face—and readied myself for battle. Steven Avery was sitting right beside me, and he appeared to be in good spirits. Who wouldn’t be? His thirty-six-million-dollar lawsuit was picking up steam.
Kelly methodically covered the basics first: name, occupation, dates of employment at the district attorney’s office, that sort of thing. Then he zeroed in on what I knew about Avery’s wrongful conviction. So I told him about finding a criminal complaint charging the real assailant, a sociopathic sex predator by the name of Gregory Allen, in the Steven Avery file. Allen had lunged at a woman after dropping his shorts to his knees on the same stretch of Lake Michigan shoreline where he did the same thing in the case for which Avery was wrongly convicted two summers later.
Then DA Denis Vogel had prosecuted the case himself, and it’s difficult to see how he failed to make the connection—especially since the complaint he signed charging Allen was in the Avery file. I told the roomful of attorneys about a series of telephone conversations I had with Vogel after the crime lab results came in showing that Gregory Allen, not Steven Avery, had committed the crime.
I’d been forthcoming with my answers, so when Kelly turned me over to the defense, they had very little to hone in on and I escaped pretty much unscathed. They’d each received a summary of my interview with the investigators from the attorney general’s office and they knew where I was coming from. I noticed as I walked out that the attorneys representing the county, Kocourek, and Vogel seemed none too pleased with my answers. But what did they expect?
The events I recounted at my deposition that day brought back memories, most of them not very good, about what had happened two years earlier. They had deeply troubled me at the time. No longer wanting to be a prosecutor—not after seeing what Vogel and Kocourek and a few cronies had done to Steven Avery—I seriously considered leaving my job and hanging out a shingle, t
hough having to put bread on the table squelched that plan before it got very far.
But until recounting the events that morning at my deposition, I’d moved on to other challenges at work and happier events, like birthdays and Christmas celebrations at home and camping trips in Wisconsin’s North Woods. I’m not sure time heals all wounds—certainly not the loss of a child. But this wound, though deep, was not nearly as personal to me as it was to those who were directly affected—Steven Avery and Penny Beerntsen, the victim of Gregory Allen’s vicious assault, primarily. Besides, with a family to support, there were not a lot of options.
Today it was different, though, and as I walked along our city’s pier that juts out into Lake Michigan and ends at a historic-looking lighthouse, my thoughts drifted back to the events of the previous September.
* * *
On the morning we presented him with the stipulation and order granting Steven Avery’s release, Fred Hazlewood, the trial judge in Avery’s wrongful conviction case, asked me to call Denis Vogel. He thought it was only fair that we should give the former district attorney a heads-up to give him time to digest the news before the media started hounding him. That sounded reasonable to me, so I called Vogel at his law firm in Madison.
We had met on a few prior occasions, but we didn’t really know each other, so our conversation was brief. I gave him the short version: the crime lab had retested some evidence and the DNA results made it clear that Gregory Allen, not Steven Avery, had been Penny Beerntsen’s assailant. Denis Vogel didn’t even try to feign surprise. I had just finished telling him that he’d sent an innocent man to prison for eighteen years, but he wasn’t bothered in the least—or if he was, he sure didn’t show it.
Now it was the following Monday. I was in court all morning and Vogel had left a message on my voice mail asking me to give him a call. It must have been serious because he called again that afternoon before I had a chance to return his call. Again, he was all business. He said an analyst from the crime lab had testified at the trial and his recollection was that her examination of some hairs had tied Avery to the crime. Yeah, right, Denis, I thought, you’re still relying on the “science” of hair examination. Then, almost mechanically, Vogel asked me a question I’ll never forget.
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