The Avery “file” consisted of hundreds of documents that were packed inside expandable file folders in three separate boxes, which were still in Fitzgerald’s corner office, the office now occupied by Rohrer. I began skimming through the file while we were still on the phone. Starting with what looked like the most organized part of the file, I came across some police reports and a criminal complaint that didn’t belong in the file. What caught my attention was the name of the defendant: Gregory Allen. It was the same name of the person that Sherry Culhane had just told us was the real assailant. That’s kind of strange, I thought.
I skimmed the criminal complaint. On August 2, 1983—almost two years to the day before Penny Beerntsen was attacked—Allen was charged with exposing himself and lunging at a woman who was walking her dog along the same beach where Beerntsen was assaulted two summers later. I flipped to the signature line on the last page to see who prosecuted the case against Allen. It was Denis Vogel, the former DA who, with the former sheriff, was responsible for Avery’s wrongful conviction. A sinking, sickening feeling came over me and would return with varying degrees of intensity over the next several weeks.
After Culhane hung up, Rohrer and I delved further into Gregory Allen’s past. CCAP (Consolidated Court Automation Program) revealed that by the time he assaulted Beerntsen in 1985, Allen had already chalked up a considerable record. Worse, because he wasn’t charged with assaulting Beerntsen, Allen not only had a past, but he had a future, too. Culhane had alluded to it.
On June 27, 1995, ten years after he avoided prosecution for assaulting Penny Beerntsen, Allen broke into a residence on the north side of Green Bay and assaulted the woman inside, while the woman’s daughter lay sleeping in a room nearby. He was convicted of kidnapping, burglary, and second-degree sexual assault “while possessing a bulletproof garment.” The presiding judge sent him away for sixty years.
The records also revealed that while Allen was in custody, awaiting trial for the Green Bay assault, authorities in South Carolina issued a Fugitive Complaint asking Wisconsin to return him to South Carolina once the prosecution here was complete. He was wanted on “suspicion of murder” for a crime that occurred in the 1970s. That complaint was later dismissed, but regardless, Allen was one scary guy.
Some of our staff members worked in the office when Denis Vogel prosecuted Steven Avery back in 1985, and one still worked for the county, but in a different capacity. None of them thought Avery was the assailant. Each of them thought Gregory Allen was. Allen had been in and out of court during the preceding six months for stalking, window peeping, and stealing women’s underwear—not the types of offenses that go unnoticed by women who work in prosecutors’ offices—and they felt certain it was him.
Brenda Petersen, our victim witness coordinator, in particular worked with detectives from the various police agencies in the county. She told us the Manitowoc Police Department was keeping a close eye on Gregory Allen during the summer Beerntsen was attacked, and some of the officers were also convinced that Gregory Allen, not Steven Avery, was Beerntsen’s assailant. Brenda also said she watched the entire trial, and she never believed Avery was the assailant. In fact, Brenda and two other staff members were so convinced the attacker was Allen that they went into Vogel’s office and told him so. Vogel, however, said it was impossible because Allen was on probation in Door County. The district attorney claimed he called Allen’s probation agent and the agent told him that Allen was in Sturgeon Bay at the time of the assault—he had an alibi.
The independent investigation conducted by the DOJ later found out otherwise. Gregory Allen wasn’t on probation the day Penny Beerntsen was attacked, as Denis Vogel had said. The “sandman,” as some of the officers had taken to calling Allen, was free to roam the beach and terrorize his next victim, which is exactly what he did when he grabbed Beerntsen and manhandled her over the dunes.
I thought back to the telephone conversation I had with Denis Vogel a few days after Sherry Culhane from the crime lab had called us with the news. He seemed unconcerned about Avery’s wrongful conviction and interested only in covering his tracks.
In the ensuing week we were confronted with a disturbing body of evidence all but proving that Steven Avery’s wrongful conviction did not happen by mistake. It was instead a colossal injustice perpetrated upon Avery and his family by the misconduct of the sheriff, the district attorney, and a handful of others who circled the wagons. After moving too fast to arrest him with the scantest of evidence, they soon found out they had the wrong man. Rather than cut him loose and start over, they knowingly and intentionally sent him to prison for eighteen years. At least that’s the way it looked to us and most others who carefully examined into the facts.
The Steven Avery saga did not end with his exoneration, however. I reflected that day upon all that had happened since. Public outcry, private lawsuits, and independent investigations followed his exoneration. He became an instant hero and household name in Wisconsin, even posing for a picture with the governor, who soon regretted the not-so-positive association. Aiming to reform police interrogation and eyewitness identification techniques, the state assembly passed the “Avery Bill.” Having filed a wrongful conviction lawsuit, Steven Avery was poised to reap millions.
Somewhere along the line the wrongly convicted man had turned into a cold-blooded killer. Or had he?
My thoughts increasingly turned back to the turmoil I felt ten years earlier when my then-solid belief in Avery’s guilt collided with my fear that the frame-up defense might set him free.
It was only two weeks until the start of the murder trial and two major issues remained unresolved—both of which were bound to have a major impact on its outcome. The first issue was whether the court would permit the defense to present an alternate suspect theory, so-called “Denny” evidence, named after a 1984 Wisconsin Court of Appeals decision bearing the same name. Under Denny and similar cases in other states, the defense is allowed to introduce evidence that a specific person or persons other than the accused may have perpetrated the crime. In other words, they get to name names.
But they can only do so under very strict criteria. They must be able to show that the alternate suspect had motive, opportunity, and at least some evidence connecting him to the crime—as the court in Denny put it, “not remote in time, place, or circumstances.” The rule is called the “legitimate tendency test,” and it makes sense because without its restrictions, a jury trial with one or more alternative suspects could rapidly devolve into a glorified courtroom whodunit—especially in the hands of skilled trial lawyers like Buting and Strang.
Hoping to prevent that from happening, the prosecution months earlier had filed a “Motion Concerning Third-Party Liability.” Filing the motion so early was a preemptive strike by Kratz and the prosecution team, because the defense had not yet tipped its hand by naming the person or persons they planned to blame for Teresa Halbach’s murder. In fact, they waited until January 10, 2007, less than a month before trial, to file the defendant’s “Statement on Third-Party Responsibility.”
In it they identified as possible third-party perpetrators “every customer of the salvage yard, every family friend, and every member of the Avery extended family who was present at the salvage yard during the hours in question.”
The pleading was broad, perhaps impermissibly so, but the motion carried weight because Steven wasn’t the only member of the Avery family to have had trouble with the law.
His older brother, Chuck, had a violent past, most notably an incident six years earlier when his former wife accused him of rape and attempting to strangle her with a telephone cord. Steve’s younger brother, Earl, having been convicted of battery and sexual assault charges in 1992, stemming from an attack on his current wife—apparently, wives don’t fare well in the Avery family—had potential, too.
Chuck and Earl both worked at the salvage yard and were on the premises the day Teresa Halbach was murdered, so they both had “opportunity”
as required by State v. Denny.
But did they have motive? If the court found in favor of the defense, the floodgates would open wide. Buting and Strang would spend days deflecting the jury’s attention away from Steven Avery and toward one or more of his aforementioned siblings—or, for that matter, anyone else with an unsavory past who happened upon the Avery Salvage Yard on the day Halbach was murdered.
They wouldn’t have to prove that Earl or Chuck or someone else was the perpetrator—the defendant never has to prove anything because it would shift the burden of proof away from the prosecution, where it belongs. All they would have to do would be to convince one or two strong-minded jurors that someone else might have done it and Steven Avery would walk away a free man.
On January 30, 2007, just two weeks before the start of what was expected to be a six-week long trial, the parties gathered in court for the final pretrial conference. Shackled in handcuffs and leg irons, and clumsily clad with a stun belt, Steven Avery was escorted into the courtroom by five deputies standing ready with sidearms and Tasers, just in case. Security outside the courtroom had been ramped up, too. With so much riding on his decision concerning the defendant’s third-party responsibility Denny Motion, Judge Willis had taken the matter under advisement a few weeks earlier, but now he was ready to announce his decision.
It wasn’t good news for the defense. After conceding that the persons identified by the defense had the opportunity to murder Teresa Halbach, the judge said there was nothing to demonstrate that any of them had a motive to kill her. And without evidence of motive, he explained, the evidence failed the legitimate tendency test under the Denny case.
Not allowed to blame someone else for Halbach’s murder, the defense team would be left with arguing the conspiracy theory and harping on reasonable doubt. The jury would never learn about Chuck or Earl Avery or any other violent miscreant that was roaming the salvage yard that day. It was very good news for the prosecution.
* * *
The defense fared much better with the blood vial defense. With each side wanting to shape how the issue would evolve, it had been a long and torturous route. At that same hearing on January 30, Judge Willis sided with the defense and denied the state’s motion to exclude the blood vial evidence. The way was cleared for Buting and Strang to accuse the police of secreting some of their client’s blood from the vial and planting it inside Halbach’s car.
With Judge Willis’s decision to permit the frame-up defense, Avery’s trial for Halbach’s murder would become intertwined with his wrongful conviction case twenty-two years earlier. With the blood vial defense still viable and the allegations that Colborn, Lenk, and a group of unnamed and unnumbered cronies from the sheriff’s department planted Halbach’s SUV at the salvage yard and its ignition key in the defendant’s bedroom, he had a legitimate shot of walking away a free man—especially with Strang and Buting at his side.
The prosecution, I thought, was in trouble. At the time—a decade before researching the matter in full—I was disconcerted by the fact that Colborn and Lenk were the officers who found the key, and only after other searches failed to turn it up. If only Kratz could get Brendan Dassey’s confession in front of the jury, I thought, the defense would not stand a chance. But Dassey’s Fifth Amendment right not to incriminate himself meant Kratz and his team could not force him to take the stand.
There was one more option. It strikes some as unseemly, but prosecutors do it all the time. We use little fish to get bigger fish by cutting them a deal. Kratz could offer Brendan Dassey a plea agreement in return for his testimony against his uncle, maybe a reduction in the charges, or, more likely, an agreement to recommend a parole eligibility date that would get him out of prison when he was still relatively young. I heard rumblings of an offer at the time and years later learned that Kratz had, indeed, offered a deal. The state would recommend parole eligibility after fifteen years of confinement—not a bad deal, given the severity of the crime.
Convincing Brendan Dassey to accept a plea agreement wouldn’t be easy. The close-knit Avery family is fiercely loyal to each other, and Allan Avery would undoubtedly pressure his grandson not to testify against Steven. Kratz had to be careful. You don’t offer much lenience to a cold-blooded killer, even if he’s a sixteen-year-old boy with diminished mental capacities whose role model in life is Steven Avery. In the end the parties failed to strike a deal. Without Dassey’s confession the outcome of Steven Avery’s trial was anyone’s guess.
The six-week trial, streaming live on the Internet from Milwaukee to Madison to Green Bay, would begin on February 5, 2007—precisely fifteen months after the SUV was discovered at the edge of the Avery Salvage Yard. Weeks earlier the Green Bay and Milwaukee television stations had decided how they would cover the trial. Key moments, like the opening statements and closing arguments, would be broadcast live and all six stations would cover the lawyer’s daily press conferences on their evening news. The astonishing twists and turns of the past fifteen months were about to culminate in a dramatic trial. DEFENSE GEARING UP TO ARGUE BLOOD WAS PLANTED, read one of the headlines in the Manitowoc Herald Times Reporter.
* * *
On the eve of trial I thought the chances of a conviction were better than even, but “better than even” isn’t good enough for the state. Shouldering the burden of proving guilt beyond a reasonable doubt, the prosecution must present overwhelming evidence. The Manitowoc County Sheriff’s Department and the prosecution team were under a great deal of stress—not only because an acquittal would add to the suffering of the Halbach family, but because in a sense they were also on trial.
No one in the public outside law enforcement and the court system knew at the time, but on the night before the trial began, and a few days after the Herald Times reported that the defense would be allowed to present evidence of the wrongful conviction lawsuit and the blood vial, former chief inspector Gene Kusche died unexpectedly, sitting in his favorite living-room chair in the comfort of his home. Kusche was a diabetic and the official cause of death was acute myocardial infarction—a heart attack. Although friends said he wasn’t a religious man, he had a Bible at his side. Had the stress of the upcoming trial and Judge Willis’s recent decision to allow the defense to introduce testimony supporting their evidence-planting claim taken a toll on Kusche’s health? There’s no way to know if his heart finally succumbed to the stress of knowing that Avery might go free because of his and the sheriff’s and DA’s conduct in 1985, but there is no question that elevated anxiety is bad for the heart, especially for someone with diabetes. Kusche had obviously been in denial. I ran into him in the courthouse parking lot a few weeks before he died. In the midst of television trucks, with their live feeds and monstrous antennae rising thirty feet high into the sky, we spoke briefly about the Avery case. It was a shame Avery was released from prison, he said with a straight face, because Allen and Avery could have both assaulted Penny Beerntsen on the beach that day. The not-so-subtle inference: If we hadn’t cut him loose, Teresa Halbach would still be alive.
Kusche had expressed similar doubts at his deposition in the wrongful conviction lawsuit a year earlier. “Yes,” he replied to one of the plaintiff’s attorneys, “I’ve heard that DNA evidence supposedly exonerated Mr. Avery, but I don’t know that on personal knowledge because I haven’t seen the reports. I don’t believe everything I read in the newspapers. Who knows,” he suggested, “maybe the DNA evidence was fabricated? Or maybe they both did it.”
The headline in the local paper the night before he died covered the judge’s decision to allow the jury to hear the blood vial and wrongful conviction evidence. Was the bravado Kusche showed during our conversation in the parking lot a few weeks earlier his way of masking his fear that Avery might walk for Halbach’s murder, in part because of his role in the wrongful conviction two decades earlier? Maybe this fear was too much stress for Gene Kusche’s aging heart to take. Or was his death just another odd coincidence in a case that was chock-full
of odd coincidences from the very beginning?
* * *
Judge Willis is no Lance Ito—in fact, he’s just the opposite. Despite its complexity, he was determined that the trial would be concluded in six weeks or less. But given the amount of pretrial publicity, as well as the strongly held views of some on the panel, it took a full week to select the jury. Nevertheless, by week’s end the 144 prospects on the panel had been winnowed down to the chosen sixteen—eight women and eight men, four of whom would serve as alternates.
The first day of trial arrived. Kratz delivered a three-hour opening statement that was compelling, if predictable. Using PowerPoint slides and high-tech schematic drawings, he showed the jury the Avery Salvage Yard, with its cluster of trailer homes and outbuildings. Speaking in a pleasant, low-key, comforting way, he laid out a convincing account of Avery’s guilt. “I promise,” Kratz assured them, “by the end of this case, you will have no doubt who murdered Teresa Halbach.”
Dean Strang hit a home run for the defense. With his sincere and thoughtful tone and demeanor, he asked the jurors not to prejudge his client’s guilt. Once they heard all the facts, he told them, they would have serious doubts about the state’s evidence, including how the ignition key for Halbach’s RAV4 car got into Avery’s bedroom and how his blood got into her car. He said the sheriff’s department focused almost exclusively on the defendant in the investigation because of their disdain for him, calling their technique “tunnel vision.”
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