Indefensible

by Michael Griesbach

  Not unlike Steven Avery, Wolfgang Braun dabbled in animal abuse and fire. He frequently burned his wife’s clothing, and she once found him sitting near the basement furnace, dousing his body with paint thinner and charcoal lighter fluid. When a former girlfriend ended their relationship after he threatened her with a knife, he doused himself with gasoline and ignited himself at her door. He was no stranger to animal abuse, either. Three of Sophie’s house pets vanished or died when she lived with Wolfgang. A few months before Teresa Halbach was murdered, Sophie’s German shepherd puppy “suffered a mysterious double leg fracture.”

  At least this is what Braun said about her husband.

  * * *

  If even half the information Sophie provided about her husband’s criminal and mental health histories was true, it evidenced an extremely depraved mind capable of murder. It did nothing to prove he actually committed a murder—much less Teresa Halbach’s murder. However, when combined with other circumstantial evidence tying him to the murder—their crossing paths at the salvage yard the day she disappeared, his odd statements to Sophie about Teresa’s disappearance, and the incriminating physical evidence she found—his twisted, perverse mind and criminal history made a convincing case that Wolfgang was the culprit. The police must have taken a very close look at Wolfgang Braun, and they would have a great deal of explaining to do if they didn’t. And if Steven Avery and Brendan Dassey did not murder Teresa Halbach, which is what half the country believed—at least the half that watched or read about Making a Murderer—then Wolfgang Braun was almost certainly the killer.

  But it was all useless speculation if Braun was lying, and the only way to figure that out was to dig further into the documents I passed over in the office but now had at my side. On one side of the ledger was the accompanying documentation that Sophie provided with her statement. It corroborated much of her information, including dates and locations of prior arrests, along with the names, addresses, and telephone numbers of four mental health hospitals in Germany and Pittsburgh where Wolfgang had been treated, paired with the name of at least one of his physicians. Such detail was either ironclad proof that Wolfgang was certifiably crazy and capable of murder—or Sophie was the best manipulator I’ve seen. And with over twenty-five years in the business, I’ve seen more than my share of manipulators.

  But still, there was plenty of reason to doubt Sophie’s credibility. Tammy Henrickson noted in her memo that she had a “strange feeling” about Sophie. I’m not sure if she’s sincere, or maybe she’s very angry with the defendant and wants revenge, or if she’s just very manipulative, she wrote.

  Calling her husband a psychopath, Sophie angrily threatened to go to the media, the governor, and “whoever else she has to, in the state of Wisconsin, if he’s set free.” And in another call to Henrickson a few weeks later, she said our office would be held responsible if Wolfgang was released and came and killed her, adding that we don’t “have a very good track record of convicting the right people.”

  Later, when I had to dismiss a felony charge in return for Wolfgang’s agreement to plead in on two misdemeanors, because she showed up twenty minutes late for a preliminary hearing, Sophie had to admit that she was the one who contacted Wolfgang after his release from jail, and not the other way around—and then only after I told her the defense had two witnesses ready to testify to prove it.

  It was maddening. As soon as I was convinced Sophie was lying, something she said, with accompanying proof, changed my mind. They were classic statements of a domestic violence victim in the throes of fear and despair. It’s not unusual for a victim in an abusive relationship to initiate contact with the perpetrator soon after he beat her—sometimes the victim even posts his bail. The detail and sheer volume of the information, much less the extent of the abuse she suffered at his hands, showed she was terrified of her husband. Either that or she went to the most extraordinary lengths I’ve seen in twenty-eight years on the job to make it seem that way.

  I have experienced being held as his captive, he first destroys all telephones or cuts the phone line, he disconnects the electricity, and he tortures the victim with physical and mental abuse, she told Henrickson in an e-mail. If Mr. Braun is allowed to go free, he will certainly hunt me down and hurt me or kill me.

  Obviously, I had believed her at the time. Wolfgang’s lawyer had filed a motion to modify bail from cash to personal recognizance. For some inexplicable reason the INS had dropped his detainer, so if the motion was granted, Wolfgang would be released from jail. In what I thought was a pretty decent argument at the motion hearing, I pointed out the obvious flight risk, and the even greater risk to Sophie’s safety, even making a few of Sophie’s letters outlining his violent history and mental health treatment part of the record. Despite my objection the presiding judge granted the motion. When Sophie learned that Wolfgang was free to move around as he pleased, she sounded genuinely terrified that he would find her and kill her.

  There was, of course, another possibility. Sophie could be truthful about Wolfgang’s past and the abuse he inflicted upon her over the years, but lying about his apparent connection to Teresa Halbach’s murder. It wouldn’t be the first time a domestic violence victim exaggerated or even concocted a story to make certain her abuser was held in jail longer than he otherwise would be. By doing so, she would get some breathing space or more time to arrange things in order to flee.

  To come up with such a detailed account of why she thought Wolfgang may have been involved in the murder, Sophie would have had to follow the news about Teresa Halbach’s disappearance extremely carefully. But many of the details of her story matched what was objectively true, including the proximity in time and distance between Halbach’s murder and Wolfgang’s beating of Sophie after she refused to help him obtain legal status in the country—the only way he could leave the country without being stopped at the border. The incident occurred less than eighteen hours after Halbach’s vehicle was found only six miles up the road.

  Concern over his immigration status also led to Wolfgang’s second arrest, two and a half months later, when he barged in and ransacked Sophie’s house looking for his papers. He asked the deputies to check for his paperwork before they took him to jail. In the words of the police report, he appeared to become more agitated after no paperwork was found. He braced his feet against the kitchen’s door frame and had to be pepper-sprayed in the face by the deputies before they could haul him out of the house.

  * * *

  I had reviewed every document and note in both of Wolfgang Braun’s files and talked the meaning and import of their contents to death with anyone in the house who was willing to listen. But in the end it proved impossible to answer the question upon which the entire Avery case seemed to hinge: Was Sophie Braun telling the truth? If she was, her husband was almost certainly the killer.

  Well after midnight, when everyone else had gone up to bed, I sat in the living room, turned off all but the Christmas tree lights, and reflected about what had happened in the last week. A television documentary and a German national with an expired visa had transformed what for ten years I thought was an open-and-shut murder case into a classic whodunit. Millions—perhaps tens of millions worldwide—believed Steven Avery and Brendan Dassey were victims of a local justice system rivaling a banana republic in its corruption. Now I wondered myself if they might be right. Had I gone mad?

  Making a Murderer was leaping onto the national and even international stage—most notably in the United Kingdom and in the Far East, where it made front-page headlines in Beijing. Confirming its cultural import, it made its way into late-night television comedy shows and even the music industry in the form of the rock band The Arcs’ not-so-smashing hit, “Lake Superior,” and several others that followed. Legions of Netflix viewers who were transformed into online sleuths parsed through the minutiae of a case that took eighteen months to investigate and six weeks to try and formed unshakeable opinions about Avery’s and Dassey’s innocence or
guilt. If the O.J. Simpson case defined the last century’s obsession with American crime and its system of justice, Making a Murderer was making its own case for owning that distinction in this one.

  All of which meant exactly nothing for those of us at ground zero. With unyielding sympathy for its protagonists and considerable contempt for the police and prosecutors who sent them to prison, it added yet another layer to an already tragedy-laden crime story that had bedeviled my hometown for thirty years. In a narrative widely accepted by nearly everyone whose only familiarity with the Avery case was the documentary itself, local police were all but convicted of planting evidence to frame Steven Avery a second time and taking down his sixteen-year-old cognitively delayed nephew as an unfortunate but necessary bit of collateral damage.

  The success of the series heaped additional suffering upon two families that had already endured more pain than any family ever should. Any hope of privacy for Penny Beerntsen and her family vanished within a week’s time. But worst of all was the indifference with which the series treated a life-filled beautiful young woman named Teresa Halbach, whose memory was lost amidst the white noise of Making a Murderer and whose family was left to wonder if it could possibly get any worse.

  * * *

  A week earlier I had sat transfixed, captivated by the telling of a crime story I’d been obsessed with for years, but also threatened by its challenge to everything I thought I knew. The revelation or, more accurately, my rediscovery of an alternate suspect in the person of Wolfgang Braun had added to a growing doubt that I could no longer ignore. My efforts to determine whether Sophie Braun was telling the truth, though aided by my family, had reached a dead end.

  While clinging to claims of objectivity in one interview after another in the coming weeks, the creators of Making a Murderer would correctly point out that truth is elusive in the Steven Avery case. But elusive or not, I aimed to find out. I went to bed that night determined to find it. With as open and unbiased a mind as possible, I would start over from scratch. I would revisit the investigation and prosecution of Steven Avery and Brendan Dassey from beginning to end and follow the facts wherever they led. If they ended with a conclusion that Wolfgang Braun was the culprit, then I would come forward and notify the court of what I had learned. If not, my original beliefs were confirmed.

  CHAPTER 8

  THE RAV4

  Before setting out on what turned into a two-month journey through the ins and outs of the Avery case, I had to set some ground rules. First, what facts would I consider? Which of the trees in the forest were fair game to rely upon as I navigated my way through the thickets and the thorns of the Avery case? Should I limit myself to only the evidence the jury was allowed to consider at trial? Did I need to ignore everything else I knew or was able to find out about the case and about Steven Avery, including his past?

  There are good reasons for the law’s exclusion of certain evidence at trial. After all, a jury is entrusted to decide a defendant’s fate, sometimes for the rest of his life, and in some states his life itself. But I wasn’t deciding whether Steven Avery and Brendan Dassey should be imprisoned for life, or in Dassey’s case for the next thirty-two years. Two separate juries and judges and courts of appeal have already decided all that.

  I decided that my test would be the same question that is at the root of most of the rules of evidence that apply in trials—whether the evidence was reliable. I would approach the evidence with skepticism, but if it appeared reliable after due diligence and careful consideration, I would treat it as fair game. If not, it would be out of bounds or, in keeping with my chosen metaphor, not to be used as a guidepost in my journey through the Avery woods. Endeavoring to find the truth as best as I could, I would not be constricted by the rules of evidence, but would consider whatever common sense dictated, as long as it was reliable.

  Making a Murderer failed to contain itself to just the evidence admitted at trial. If I were to truly discover the whole truth behind Teresa Halbach’s murder, then I would have to consider all of the reliable but inadmissible evidence out there, not just the evidence the documentarians chose to present. Others would have to judge for themselves the reliability of the facts I chose to include. I would present the facts and let my readers decide.

  My other ground rule—and this one would be more difficult to follow—was that I would do everything in my power to prevent any preconceived notions from getting in the way. I had privately condemned the filmmakers for doing just that during numerous media interviews in the preceding weeks, and I did not want to make the same mistake. We are all susceptible to developing agendas or preconceived notions that blind us from the truth. It would not be easy, but I would need to be constantly on guard against this tendency to which none of us are immune.

  After hearing Special Prosecutor Ken Kratz recount Brendan Dassey’s confession in graphic detail at his breaking news press conference, a decade earlier, I had fallen into the trap myself. I turned off the critical thinking switch after that, even when I wrote Part 3 of The Innocent Killer. Why waste the time and effort? I thought. Steven Avery was obviously guilty.

  But I had missed a few important details and, as several Facebook commentators and Amazon reviewers pointed out after Making a Murderer aired, I had inaccurately stated a few of the facts. None of substance that would have affected my view of Avery’s guilt at the time, but it was sloppy and understandably upsetting to readers convinced after watching the documentary that Avery and Dassey were innocent. For some of them, it was evidence that I wrote the book as a tool of the state in order to cover up police and prosecutor misconduct.

  The accusation is nonsense. On the other hand, our minds are easily confused when we are overly confident about what we think we know. This time I was determined not to let that happen. Once we assume something to be true, by an unintended but skewed perspective from what we do for a living or stubborn habits of thinking, our false assumptions and opinions are difficult to dislodge. It is human nature—a weakness from which none of us are exempt—but it was completely at odds with what I was determined to accomplish: to once and for all find the truth, the whole truth, and nothing but the truth about the Avery case, so help me, God.

  I needed to do one more thing before I set out on my journey. I ask juries to do it all the time: Don’t lose the forest for the trees because you are sure to get lost amidst the fog. Concentrate on one bit of evidence to the exclusion of the rest, and you will never succeed in finding the truth. Like the other two ground rules I set before heading out on my journey, this rule had to be applied equally to both sides—to the facts and circumstances suggestive of innocence, and to those supporting guilt.

  In practice this meant that I had to keep two conflicting ideas in mind at the same time. Ever mindful of the defense theory that police had conspired to plant evidence in an effort to frame Avery and Dassey, I had to do so without forgetting the prosecution’s argument that the very physical evidence the defense claimed was planted pointed squarely to their guilt.

  I stood back for a few minutes and took in the size and basic shape of the Avery and Dassey cases. The trail wove through plenty of thickets and thorns, but even from this distance it looked well marked. This would be no easy journey, but not an insurmountable one, either, as long as I kept my wits about me and paid close attention to where I was going.

  * * *

  I began where all journeys do, at the trailhead. But in this case it was difficult to find. The prosecution maintained it was when Teresa Halbach’s RAV4 was discovered at the salvage yard on November 5, five days after she was murdered there on Halloween Day. The defense, however, insisted it began two days earlier when they claimed Manitowoc County sergeant Andy Colborn called in the RAV4’s license plates to dispatch after finding it somewhere out in the county before he, and presumably some of his partners in crime, planted it at the salvage yard to set up Steven Avery.

  To be fair to the defense, I had to start my journey where they claimed the
trail began, so my task at this early stage was to find out if there was anything to their accusation, parroted by Making a Murderer, that Colborn had seen the RAV4 somewhere other than the salvage yard two days before it was found. But I had to do so without losing sight of the entire forest, which required, as it did in most cases, that I hold two contradictory possibilities in my mind at the same time. First, that Steven Avery hid the RAV4 partly concealed under branches and another car’s hood at the edge of his property after he and his sixteen-year-old nephew murdered Teresa Halbach. And second, that Colborn, probably with help, planted the RAV4 at the salvage yard as part of a grand conspiracy to frame Avery for Halbach’s murder in retaliation for his thirty-six-million-dollar lawsuit against Manitowoc County.

  Was the RAV4 planted or not? The answer lay in the clumsy language of the law. When deciding questions disputed by the parties, the trier of fact is to consider the “totality of the facts” and “circumstances and the reasonable inferences therefrom.” To do so, I needed to compare two transcripts—one from Making a Murderer and the other from the trial—both of which, thanks to crowd-sourcing efforts of interested and concerned citizens, were available online.

  I assumed as I sat down and compared the transcripts that the answer would be a close call—that, as is typically the case, both sides had marshaled facts in support of their position, leaving the answer hidden among different shades of gray. Maybe the facts would be so convoluted that I would not feel comfortable enough to make the call one way or the other and, if so, I’d have to move on to the next stage of the journey.

  What I found, instead, was an instance of selective editing that would make any propagandist proud. First, portions of Colborn’s actual trial testimony (bracketed below) were removed from the documentary, to make it appear he answered a question in the affirmative that he never answered at all. Second, a question that would have helped explain his side of the story to the viewers is never heard. If you follow along carefully, you will see what I mean.