Indefensible

by Michael Griesbach

  If the new evidence makes us prosecutors doubt the defendant’s guilt, then we regroup and dismiss the case—at least that’s what we are supposed to do. In fact, even if we still think the defendant is guilty despite the new evidence, if we don’t think we can prove it beyond a reasonable doubt, we’re supposed to dismiss it. There are always other fish to fry, and, more often than not, the fish that got away will be back before long.

  Exculpatory evidence is ordinarily easy to spot. And if it’s not, there are more than enough federal and state court decisions to provide prosecutors with guidance when it’s a close call as to whether a particular piece of evidence or information is exculpatory or not. If after reviewing the case law, we’re still uncertain, then on the theory that it’s better to err on the side of caution, one would hope that most prosecutors would cough it up. If upholding a defendant’s constitutional right to a fair trial is not incentive enough for prosecutors, the possibility of losing their licenses to practice law should suffice.

  Wolfgang Braun’s statement to his wife Sophie is without doubt exculpatory evidence. And if the prosecution knew about it, they had to turn it over. And they should have known because Sophie said she relayed the same information she gave to Convoluted Brian to the police. If the prosecution team had her statement, I was sure they disclosed it to the defense. Unless they followed up on Sophie’s information and discovered there was no doubt she was making it up—which would also be fine.

  But what if the officers from the sheriff’s department who interviewed Sophie—it just had to be the sheriff’s department again—never passed the information on to the prosecutors? It’s not their call, but what if they thought it wasn’t true, so why bother the prosecutors with such nonsense when everyone knew that Steven Avery and Brendan Dassey murdered Teresa Halbach, not some German national who just recently moved into the area and, as far as they knew, never even met Halbach.

  Worse, what if the county sheriff’s officers thought there was something to it and intentionally failed to pass it on? That road led to disaster and a conclusion I did not want to draw.

  If all that weren’t enough, the prosecution’s problems did not end there.

  First, when it comes to exculpatory evidence, prosecutors don’t get to hide behind the police. We are deemed by the law to know what they know—even if we don’t. So if the sheriff’s department failed to tell Kratz and his team about Sophie and Wolfgang Braun, it would not alleviate the problem.

  Next, what if the prosecutors knew about Sophie’s statement, but did not disclose it to the defense? The day would only be saved if they had followed up on Sophie’s information and found out she was obviously lying, maybe to get back at her husband for something he’d done or perhaps because she was delusional.

  But unless it was very clear that she was making up her story, this road would likely also lead to disaster because neither cops nor prosecutors get to judge whether potentially exculpatory evidence is reliable. We’re not the gatekeepers of reliability of witnesses and the truth. The law, the judge, and ultimately the jurors are the gatekeepers of this realm—not the prosecutor.

  This last scenario presented an especially complex problem, the answer to which is not very clear in the law. Despite its well-earned reputation for being overly complex, the law generally makes sense. Judges and legal scholars have had hundreds of years to develop ways to deal with issues that invariably arise in conflicts between individuals or groups. Whether the fight is about money or kids, who’s at fault when someone gets hurt—or for our purposes, what rules apply when the government accuses someone of a crime and wants to put them in jail—the law has already answered most of the questions that might arise. And if it hasn’t fully answered a particularly thorny question, it is sure to have given it a good going-over and written its musings down.

  What happens when a prosecutor comes upon new and arguably exculpatory evidence after a defendant is convicted—like I just did when I was reading Sophie Braun’s explosive statement—is one of those complicated questions, the answer to which, like the devil, is always in the details.

  So I did what most lawyers do when they don’t know the answer—I opened a book, The Wisconsin Statutes, and specifically the section entitled “Special Responsibilities of a Prosecutor.” In relevant part, here is what I found:

  When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall promptly disclose that evidence to the defendant.

  Furthermore, [if a prosecutor knows of] clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. Meaning, I assume, we have to dismiss.

  New, credible, and material—but just how new, how credible, and how material? And exactly what is a “reasonable likelihood,” anyhow? Your reasonable likelihood might very well not be mine.

  Lawyers love words like these because they give them wiggle room to spin their arguments whichever way suits their clients’ interests that day. But as prosecutors, we have no business spinning arguments, at least not on issues of law, and especially not on the fundamental issue of innocence and guilt.

  I was fairly confident even without researching the issue that if Braun’s statement was not known to the prosecution team because the sheriff’s department kept it to themselves, it would qualify as “new” under the statute. And there was no question that, if true, her statement about Wolfgang’s behavior and statements during the week that Teresa went missing were “material.”

  It came down to the third squishy word in the statute—“credible.” Was Braun’s statement credible? Was she telling the truth? If she was, then under the rules—even a decade after Steven Avery and Brendan Dassey were found guilty, after both of their convictions had been upheld in the court of appeals, and after ten years of the Halbach family believing that Teresa’s killer had been brought to justice—her statement had to be turned over to the defense. A new trial would follow, and the prospects for a conviction would be slim, assuming the state would even refile it.

  * * *

  As concerned as I was about Braun’s statement that her husband might have been Teresa Halbach’s killer, and what that might mean for the Avery and Dassey cases, owing to our continued conflict of interest, it was not our office’s job to figure it out. I could do all the thinking I wanted, but I could do nothing to investigate whether she was telling the truth. I knew Sophie had provided enough detailed information that it could not be ignored, I forwarded it to the special prosecutor in charge.

  That night at home, I tried to figure it out. The possibilities of how the police and prosecutors in the Avery and Dassey cases could have handled Sophie’s information seemed endless, and almost all of the scenarios ended badly.

  Sophie would not be the first spouse in a dysfunctional marriage to spin a yarn to get her spouse in trouble with the police. Why did she tell her story to Convoluted Brian several years after the events occurred? Was she still bitter and not willing to give up the anger and hate, even after they divorced? Did she contact Convoluted after searching online for a pro-Avery blog?

  On the other hand, in the last twenty-eight years I’ve prosecuted over two thousand domestic violence cases. The “Battered Women’s Syndrome,” as domestic violence experts refer to it, is real. I’ve seen it in action.

  Domestic violence is far more prevalent than most people realize and they have no idea what victims go through. Bouncing back and forth between wanting to escape their abuser and not being able to leave him for fear, for financial reasons, or other factors, they tell police the truth one day and recant their statement the next, sometimes explaining away their swollen face and bruises as the result of a fall. Occasionally they exaggerate the beating to keep the abuser in jail so they can escape before he returns to make good on
his promise to beat her worse next time or even to kill her.

  But rarely will an untrue or exaggerated story be as detailed as Sophie Braun’s. If Sophie’s story was a lie, it was a whopper!

  * * *

  The next morning I sent an e-mail to Tom Fallon, the one remaining member of the prosecution team. I attached Convoluted Brian’s rendition of Braun’s statement, along with a short note that I was not vouching for or against its credibility, but that it included enough detail that it should probably be looked into.

  After not hearing back from Fallon, I spoke with my boss and we left a voice mail requesting that he give us a call. I was in court when he called back, but he told my boss he was unable to open up my e-mail for some reason so I should send it again. I did and he confirmed the receipt of same.

  There was comfort in knowing I had fulfilled my obligation under the law. I passed the information, as I understood it, on to the person in charge and now he would have to decide what to do with it.

  The comfort lasted for no more than a week. How did I know Fallon was going to follow up? He was in the middle of moving back to the attorney general’s office after transferring to the district attorney’s office in Madison for a few years. I’m sure he was swamped at work. Besides, I thought, he was probably none too pleased about being stuck with the Avery case, especially now that Making a Murderer had catapulted the case into the national spotlight. He was the only member of the prosecution team left. Kratz was no longer working or living in the area, and the other prosecutor, Assistant DA Norm Gahn, had retired. Fallon was solely responsible for both the Avery and Dassey cases—the entire mess.

  I figured there’d be no harm if I found out more from Convoluted Brian. Up to this point I did not even know the woman’s and the suspect’s names—Brian had omitted them to protect Sophie. I wanted to verify if Wolfgang was arrested in a domestic violence incident, as Sophie said he was, including when and where, to see if it matched up with what Sophie had claimed. But without their names I could verify nothing.

  Convoluted Brian was hard to track down, but shortly after I sent him an e-mail asking for the names of the suspect and the suspect’s wife, he sent a reply. Without any commentary the names of both individuals and the case numbers for the two domestic violence arrests appeared on my screen. I went on the Circuit Court Access Page (CCAP), our state’s online database for every criminal charge filed going back twenty-plus years, and after entering the first case number scrolled down to find out who had prosecuted Wolfgang Braun. It was me—as it was for the second set of charges two months later. The charges and the dates and the places where the offenses occurred matched up, too. At least with regard to the domestic violence cases, Sophie was a reliable reporter of events.

  But that she was telling the truth about where she and Wolfgang lived and when and where he was charged with unrelated crimes—no matter how close in proximity and time to Teresa Halbach’s murder—did not mean she was not lying about everything else. To find out more, I would need to retrieve the files.

  * * *

  We have a subscription in the office for the Manitowoc Herald Times Reporter, which included a story about the Avery case nearly every day for months after Making a Murderer aired. Before leaving for the day, I picked up the “Distorter”—as many of us in town somewhat fondly refer to our local paper—to check out that day’s installment on the Avery case. Brendan Dassey had written a letter from his prison cell and the paper had copied the handwritten note in full just as Dassey had scribbled it down.

  To The People of the World, the letter began, I am writing to let you know that me and my uncle Steven are innocent. The investigators tormented me until I said what they wanted me to say.... They tricked me. The investigators lied through their teeth on the stand. If I would get a new trial the truth would come out because I am not afraid of them anymore. They ruined me and my families lives.

  Dassey signed it, Sincerely yours, True and innocent, Brendan Dassey.

  I could hardly wait to get my hands on the 2005 Wolfgang Braun files! On my way out of the office, I asked our receptionist to retrieve them from our off-site storage facility. As I drove home that night, it occurred to me for the first time that Brendan Dassey and Steven Avery might really be just that—true and innocent.

  CHAPTER 6

  MERRY CHRISTMAS

  The tree had been up for a week, the decorations hung, the college kids back in the nest, the Nativity set displayed, cookies baked, and plenty of hot chocolate and schnapps on hand—all the traditions that make Christmas such a peaceful and joyful time for our family were finally in order. The next day the comfort of family would be replaced by fear, not by means of an unknown substance sent in the mail, as one of the officers received, but by information I would soon learn about Wolfgang Braun.

  No matter where I went or whom I talked to, I could not escape Making a Murderer. Extended family, neighbors, colleagues, friends—that was all anyone wanted to talk about. Having heard that I appeared briefly in episode one the documentary, a few of them assumed I shared its point of view. The media coverage was incessant, too—though after I began speaking out against what I considered the series’ obvious bias in dozens of radio, television, and print media interviews all across the country, I was hardly in a position to complain.

  It was not a surprise, then, when I came home after reading Brendan Dassey’s letter “To The People of the World” on the way out of the office, and I saw my wife, Jody, and the kids in the living room, already several episodes into Making a Murderer.

  “Hi, guys.” No answer.

  “Can you believe it—Christmas is only two days away!” No answer again.

  “The courthouse blew up today.” Still, no answer.

  I couldn’t blame them. The documentary was so absorbing that a friend told me that he and his wife watched the entire series straight through one night.

  I threw something into the microwave for dinner, and took the dog for a walk. I managed to catch Jody between episodes long enough to tell her that Convoluted Brian had e-mailed me Wolfgang and Sophie’s names and that I had been the prosecutor on the files. Jody has an excellent memory and she immediately recognized Wolfgang’s name—I probably forgot it an hour after he entered his plea.

  That meant there was something highly unusual about Wolfgang Braun because I rarely discuss cases at home. It’s not that I mind talking about my job or that I can’t—other than the juvenile cases, they are almost all a matter of public record. But most of my days are pretty boring, at least at this point in my career. Naturally patient, Jody is almost always willing to listen, but the kids will only pretend to listen to me for so long.

  Besides, my job is not exactly uplifting. As cops and prosecutors, we spend most of our time dealing with people when they are at their worst, when they have done something that will only make their already-difficult lives more difficult. Many of them wish they could take it back—until they get drunk or stoned the next time and repeat their criminal behavior, or maybe even take it up a notch or two in its severity. I suspect most cops feel the same way as I do—why bring all of that home?

  Criminal cases divide roughly into equal parts of booze, greed, drugs, violence, and sex. Some of our defendants mix these ingredients together in a variety of dismal ways. You might think with this kind of material, the life of a prosecutor would never get dull, but you’d be wrong. Pride, greed, lust, envy, gluttony, wrath, and sloth—Chaucer’s seven deadly sins. None of us escape them, but peering into others falling prey to their temptations becomes tiresome after a while. We spend most of our day scrounging around in other people’s lives, trying to figure out if we have enough evidence to prove their most recent transgression, and if so, what kind of punishment should be imposed and for how long.

  There is also a great deal of repetition involved. If you’ve seen one drunk-driving case, you’ve seen them all—especially after more than twenty-five years in the business. A patrol officer stops a vehicle
for weaving in or out of its lane. He approaches the vehicle and notices the driver has bloodshot eyes, slurred speech, and “the odor of intoxicants emanating from his person.” They might as well have an AutoText program for these last three observations. The driver bombs the field sobriety tests—including a few that most people would fail stone-cold sober. The drunk is arrested without incident unless he becomes unruly with the officer and must be “decentralized” and then “assisted to the ground.” After a quick stop at the hospital to take a blood sample, forcibly if necessary, which comes back later at two or three times the legal limit, the driver is hauled off to jail. A well-trained monkey could handle the prosecution.

  In a totally separate category, though, are the half-dozen or so cases every year that are serious enough or unique in some other way to warrant a discussion over the dinner table at home. Wolfgang Braun’s cases fell into the second category—not because of the run-of-the-mill domestic violence offenses he committed, but because of an aura of danger, intelligence, and manipulation that was sufficient to place him in that year’s fairly exclusive club of “I hope this guy doesn’t kill somebody, someday” membership.

  Jody remembered that I told her Wolfgang Braun was a German national and that he was creepy, but not much more. It was, after all, ten years ago. I recalled little more than what he looked like, and only after she reminded me how I’d described him to her after coming home from work after his plea hearing. He was a fit, trim, strong, middle-aged man, with close-cropped short gray hair and intelligent eyes—smarter than anyone else in the room, I thought at the time, as I’m sure he did, too. He was personable, if not outright friendly, with his attorney and everyone else in the courtroom before and during his sentencing hearing despite, or perhaps in part because of, his broken English.

  But still, I remember thinking in court that day that there was something very disturbing about Wolfgang Braun’s personality, but that’s as much as I could recall. To find out more, I needed to review his files, hopefully the next day.