Indefensible

by Michael Griesbach

  “Is there anything on Allen in the file?”

  I feigned ignorance and mumbled something inconsequential about the case instead. Then I told him that my boss, Mark Rohrer, and I had turned the file over to the attorney general the previous Friday, which I’m sure wasn’t news to him, since the media had already extensively covered Rohrer’s request for an independent review.

  I hung up the phone and just sat there in my office for a while, reflecting upon our conversation. Vogel’s question—“Is there anything on Allen in the file?”—implied he knew that Allen, not Avery, was the assailant, didn’t it? He was covering his tracks, and he must have thought I’d go along. How else could I take it?

  Despite their reputations, most attorneys possess as much integrity as the next person, and maybe even more. Denis Vogel appeared to be one of the exceptions. How could he prosecute someone he knew was innocent? And how could he let somebody as dangerous as Gregory Allen go free? Among his other terrifying acts that summer, Allen had held a seventeen-year-old girl at knifepoint after he stalked her and broke into her house.

  Being sanctimonious is a temptation for prosecutors, one I’m not immune from, so I tried to temper my judgment about what Vogel had done with an understanding of why he did it. Part of the problem, I thought, was that by rushing the decision to arrest Avery without consulting the district attorney, the sheriff had put into play a course of action that would have been difficult to reverse.

  I suppose Vogel could have cut Avery loose at the bail hearing and summoned him in later if he thought the case was strong enough to charge. But with such a prominent victim and with the media paying such close attention, letting Steven Avery go free would have been politically difficult. After all, district attorneys had to run for reelection every two years back then.

  It also would have been nearly impossible to convict the real assailant, Gregory Allen. After Sheriff Kocourek and Detective Kusche’s ridiculously suggestive eyewitness identification process achieved its objective of having Penny Beerntsen identify Steven Avery as her attacker. It would have been nearly impossible for Vogel to bring Allen to justice. Beerntsen would have to explain to the jury how she was now certain that it was Gregory Allen, although she had on three prior occasions positively identified Steven Avery as her assailant—in a photo array, a live lineup, and at a preliminary examination in court—before the state dismissed the charges against Avery and refiled them against Allen.

  When the sheriff sent out his deputies to arrest a man from the wrong side of the tracks, a man whom nobody at the sheriff’s department liked, and who just seven months earlier had rammed his car into a vehicle driven by the wife of a deputy and then held her at gunpoint—and when the sheriff did this, on the strength of nothing more than an eyewitness identification that was manipulated—he rang a bell that was impossible to unring. This was a bell that would rise from the ashes and ring in more pain and sorrow for the next three decades and counting.

  Regarding Vogel, was it possible he didn’t know? The more I tried to convince myself that Vogel didn’t know, the more convinced I became that he did. The more I thought about why he did it, the more I realized there was nothing that could possibly justify it. No doubt, the office of district attorney is fraught with political pressure, but you can’t play politics with an innocent man’s life. Ever.

  Then I recalled my conversation with some of the office staff a few days after the crime lab called with the DNA results, about how all three staff members who worked there at the time thought that Gregory Allen, and not Steven Avery, was the assailant. They even approached Vogel with their concerns. However, he told them they were mistaken. He had checked with Allen’s probation agent, who said that Allen had an airtight alibi, a statement that, like so many other statements made by the authorities in the first Avery case, turned out to be a big, fat lie.

  * * *

  I hadn’t stayed up all night in thirty years, but I sat spellbound that night watching Making a Murderer until six-thirty in the morning when the sun made its low, reluctant rise in the Wisconsin winter sky.

  The night was exhilarating and maddening at the same time. Exhilarating, because I’d been obsessed with the Avery case for more than a decade and the entire saga was being played in my living room on video and audio, instead of static black words on white sheets of paper.

  Maddening, too, because as soon as my confidence in Avery’s guilt was restored—at times by something as simple as a guilty and sinister expression on his face—the next scene would send me into a panic, convinced again that the police had set him up and had taken down his emotionally vulnerable and intellectually challenged sixteen-year-old nephew as collateral damage in the process.

  Take the discovery of Teresa Halbach’s vehicle at the salvage yard, for example. In real life it was the break investigators had been looking for. Had the RAV4 not been discovered by two volunteers from a search party two days after police had first been on the property, Steven Avery likely would have disposed of it in a “car crusher” on the premises the following day, and Halbach’s murder might never have been solved.

  I was especially curious about how the documentary would portray the discovery of the RAV4 because I was there shortly after it was found. DA Mark Rohrer and I were called out to the scene that Saturday, five days after Halbach had last been seen. Rohrer had called me at home, and from the tone of his voice, I knew it was serious.

  Could I meet him out at the Avery Salvage Yard, he asked. A volunteer search party had just found the SUV of a freelance photographer from Calumet County who was reported missing two days earlier, and the police needed a search warrant for what they feared would be her remains.

  “Where’d they find it?” I asked.

  “At the edge of the junkyard near the woods. Whoever did it, [they] threw a bunch of branches on top to conceal it.”

  “Do we know anything else yet?”

  “Well,” Rohrer replied, “her final shot that day was of a used car for sale at the salvage yard, and guess who called to set up the appointment?”

  “Oh, shit,” I replied.

  I hopped in our minivan and sped out to the scene, where more than a hundred police officers from several jurisdictions, including sixty state troopers, would later converge for a massive search while television helicopters circled overhead for what everyone feared would be Teresa Halbach’s remains. I remember gathering information from detectives for a search warrant and wondering where in the midst of the countless skeletons of junked cars, each surrounded by tall grass and weeds, the killer had hidden the body. The scene has been permanently etched in my mind.

  As darkness fell, a light drizzle that started in midafternoon turned into a cold, driving rain. A mobile unit from the state crime lab, equipped with a few floodlights and a space heater, served as the command post and a refuge from the dark and the wet and the cold. The rain got heavier as the night wore on, and the flimsy, transparent plastic that served as the canopy for the Crime Lab Unit flapped noisily in the gusty wind. I’ll never forget the eerie feeling evoked by the shrill sound of police dogs loudly barking as the search continued late into the night.

  Still, there was no body. Finally one of the dogs, a Belgian shepherd named Brutus, alerted on a burn barrel approximately one hundred feet behind the residence of Steven Avery’s sister, Barb Janda, and her son Brendan Dassey. Although four different types of human bone fragments would later be identified inside one of four burn barrels, it wouldn’t be until days later. In the meantime all four barrels were sent to storage for safekeeping.

  A few days later, Special Agent Tom Sturdivant would identify bone fragments in the fire pit. He testified at Avery’s murder trial: “Deputy Jost was standing in front of what appeared to be, in my opinion, a piece of bone fragment. It was approximately one inch in length. And, um, my opinion was, and I think we kind of agreed, that it was a piece of bone fragment. And after looking at that, I looked at this so-called burn pit at the end of that pil
e of gravel and also noticed other—what in my opinion were bone fragments . . . that were obvious around that, uh, pile of debris.”

  Three agents from the Wisconsin Crime Lab converged at the scene and began sifting through the contents of the burn pit and the grassy area around it. It didn’t take long before they found pieces of charred bones and teeth fragments. Later a forensic anthropologist would confirm that these belonged to an adult human female not older than thirty-five.

  The premise that Teresa Halbach was murdered there was confirmed by the lengthy investigation that followed. It uncovered evidence proving that she never left the salvage yard that day—at least not in one piece. At the very least, she was held against her will, shot, and her body burned. At the very worst, she was tied up, raped, and stabbed, too.

  Our office’s role in what turned out to be the Avery and Dassey cases began and ended the same day that the RAV4 was found and Brutus alerted on what would eventually be entered into evidence and referenced as “Burn Barrel No. 2.” When a search for a missing person changed to more of a criminal investigation, Rohrer and I both felt that with the wrongful conviction lawsuit still pending, there’d be a conflict of interest if we continued to be involved.

  As the investigation progressed in the weeks and months that followed, I knew no more about the Avery case than what was being shown almost daily on local news broadcasts. My regular caseload was more than enough to occupy my time, but like everyone else I paid attention as the investigation unfolded.

  * * *

  I occasionally thought back to that Saturday afternoon and what might have occurred between the day Teresa Halbach went missing and the day her vehicle was found. Had the police developed any leads? Had they come upon any information that gave them even a clue?

  I’d always assumed that whatever leads they developed in those couple of days had gone cold and that finding the RAV4 at the salvage yard was the break they were looking for. But I was about to learn that my assumptions might have been wrong.

  “Manitowoc County Sheriff’s Department, this is Lynn,” the familiar voice of one of our dispatchers announced.

  “Lynn?” Andy Colborn’s even more familiar voice said in reply.

  “Hi, Andy.”

  “Can you run Sam William Henry five-eight-two?”

  “Okay. Shows that she’s a missing person, and it lists to Teresa Halbach. Okay. Is that what you’re looking for, Andy?”

  “Yup, okay, thank you.”

  “You’re so welcome. Bye-bye.”

  I’m sure I wasn’t the only one who conjured up a vision of Sergeant Colborn sitting in his squad car, or even standing behind Teresa Halbach’s RAV4, staring at its license plate and calling it in.

  And now Dean Strang, standing in for Jerry Buting as the bad cop, was in my living room—well, sort of—grilling Colborn about why he would be calling dispatch to run a check on the plates for Halbach’s car two days before it was supposedly found.

  “But let’s—let’s ask . . . establish this first,” began the exceptionally well-spoken lawyer, who was caught by the court reporter posing a question in less than his typically clear and crisp style, “do you remember making the call?”

  “Not really, no,” Colborn replied in a not very confident tone.

  “Were you looking at these plates?” Strang asked, after which the witness looked around nervously without providing an answer.

  Then Strang went in for the kill: “Well, and you can understand how someone listening to that might think that you were calling in a license plate that you were looking at on the back end of a 1999 Toyota?”

  Weeks later I would parse Colborn’s entire testimony with a fine-tooth comb, but what I—and everyone else in the world who was watching that night—heard was merely: “Hm, yes.”

  I nearly jumped off my seat. No way, no way! Andy Colborn would never lie on the stand, much less plant evidence in a murder case.

  “I didn’t see them plant evidence, with my own two eyes,” said Dean Strang in a later episode. “I didn’t see it. But do I understand how human beings might be tempted to plant evidence under the circumstances in which the Manitowoc County Sheriff’s Department found itself?.... Do I have any difficulty understanding what human emotions might have driven police officers to want to augment or confirm their beliefs that he must have killed Teresa Halbach? I don’t have any difficulty understanding those human emotions at all.”

  And so it was for the rest of the night as I watched one episode after another of Making a Murderer hinting at police misconduct that, taken together, all but convicted Andy Colborn, Jim Lenk, and an unspecified number of unnamed others of planting evidence to frame Steven Avery for Teresa Halbach’s murder.

  The RAV4’s ignition key found in Avery’s bedroom? Planted, of course, by Colborn and Lenk.

  The six spots of Avery’s blood found in her car? Also planted—from a vial still kept in evidence from a post-relief conviction motion following his wrongful conviction.

  And the bullet fragment found in the garage, the one fired from Avery’s gun with traces of Halbach’s DNA? Planted again, this time by Lenk, but perhaps with the assistance of Detective Dave Remiker, who happened to be in the garage the day it was found.

  The cumulative effect of watching one disturbing episode after another was emotionally draining. A smoking gun—or, in this instance, a spot of blood with a preservative—that definitively proved the police planted evidence to frame Avery would have been easier to take. Like hundreds of thousands of other viewers, who were most likely in the same miserable hell I was, we were left hanging for hours, drawn in with the promise of an answer. In the end, we were left with more questions than answers, along with utter exhaustion and despair.

  * * *

  Some people can deal with uncertainty more comfortably than others. I think I can, at least concerning the big questions in life—questions of philosophy, religion, politics, and that sort of thing. I don’t need ironclad certitude, for instance, to believe in the existence of God.

  But Making a Murderer wasn’t musing about life’s ultimate questions. It was exploring a few practical questions and was inviting its audience to go along on the trip: Did the police plant evidence to frame Steven Avery for Teresa Halbach’s murder? Was he wrongly convicted again? Considering Avery’s pending lawsuit against the county, the involvement of the Manitowoc County Sheriff’s Department early on in the murder investigation, and the series of what I had hoped were merely uncanny coincidences in how some of the evidence was found, these were very appropriate questions. A documentary is the ideal medium in which to raise these issues.

  However, an unintended consequence of Making a Murderer is that it has invited the world to take part in a brainteasing adventure that is enormously harmful to real people with real lives. For these people, it is not an academic or cinematic exploration of the shortcomings of the criminal justice system.

  Teresa Halbach’s parents and her brothers and sisters, who have borne a greater burden than most of us will ever be asked to, now have to bear more. Penny Beerntsen and her family, who have dealt with the Avery case since it began thirty years ago, are bearing more pain, too. And even Sergeant Colborn and Lieutenant Lenk have been negatively and irrevocably impacted. Their sterling reputations have been forever tarnished on a scale perhaps never seen before.

  These heroes—and in my mind they are exactly that—knew from the start that their personal tragedies could never be kept completely private. But they never expected that their burdens and that of their families would be shared with the entire world. They never asked for that. Nobody ever would.

  CHAPTER 4

  STICKS & STONES . . .

  Threats to the sheriff’s department started pouring in two days after Making a Murderer aired. Viewers were outraged by the documentary’s not-so-subtle contention that police in some forsaken town in Wisconsin planted evidence and conspired with prosecutors to send a rough-around-the-edges but likeable man and his s
ixteen-year-old nephew to prison. Citizens from around the world took to their computers and cell phones to express their anger. Nor did they discriminate when choosing the objects of their disgust. Every member of the Manitowoc County law enforcement community, even those who had nothing to do with the case, was worthy of their disdain.

  The sheriff’s department bore the brunt of the anger. After Making a Murderer aired, the law enforcement office received over two hundred angry e-mails and telephone calls in the first week or so. Six of the calls contained threats directed at specific targets that were serious enough to warrant investigation by state agents and the FBI.

  Jim Lenk and Andy Colborn, all but convicted by the documentarians of planting evidence to frame Avery and Dassey, were the most common targets by far. One of them received a threatening call at home on Christmas Day. He had hoped to spend a peaceful day with his family, who still loved him even if hundreds of thousands around the world thought him the dirtiest of cops. Instead his and his family’s Christmas Day was ruined by the call.

  Some of the rage was misdirected. The City of Manitowoc Police Department, oftentimes confused with the County of Manitowoc Sheriff’s Office, did not participate in the investigation of Teresa Halbach’s murder, but dispatchers there were also fielding calls. Someone from Australia even sent an e-mail to the mayor, calling out the corruption in his despicable little Midwestern town. Even the county historical society took some heat as its rating on Facebook plummeted after scores of Netflix viewers posted negative ratings and ranting reviews about the city.