On January 3, 1985, again at approximately five-thirty a.m., Sandra drove past Steven and Lori’s house and then noticed Steven’s vehicle coming up behind her at a rapid pace. He started passing her, but then rammed into the side of her car, forcing her off the roadway. He confronted her, pointing a rifle at her, and ordered her to get into his vehicle. She pleaded with him to let her go because her baby would freeze to death if he didn’t allow her to take the child to her parents’ home. Steven looked into her vehicle, saw the child in the front seat, and let her get back into her car. He followed her for a while. When she arrived at her parents’ residence, she called 911. Police later searched Steven and Lori’s house and underneath a child’s bed they found a 30-06 rifle with a live round in the chamber.
The relevance of the Morris incident to Teresa Halbach’s murder was a stretch, but the state stretched it nonetheless. They compared the “fixation” Avery developed with Sandra Morris to what he had with Teresa Halbach. “He began by exposing himself to both Ms. Morris and Ms. Halbach,” argued the prosecution—again stretching the facts unless they had undisclosed evidence that he had exposed himself to Halbach on a prior occasion. “After these contacts failed to generate the desired result,” they continued, “Steven Avery used a firearm in an effort to force the unwilling victims to submit to sexual intercourse.”
* * *
Judge Willis had his work cut out for him. The law required him to apply a three-step analysis for every item of “other acts” evidence offered by the state: Was the evidence “material to proof of Steven’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”? Was it relevant? And was its “probative value substantially outweighed by the danger of unfair prejudice”?
As I reviewed the court’s lengthy written decision, it forced me to carefully consider whether and how much Steven Avery’s history of physical and sexual abuse had to do with whether he was guilty of Teresa Halbach’s murder. I thought the judge would side with the prosecutors on two of the “other acts”: Avery’s sexual assault of his seventeen-year-old niece in 2004 and his telephone call to Melissa Hansen the day before Teresa Halbach was murdered when he asked her to come over and “have a little fun.” But in the end the court decided not to allow any of the “other acts” into evidence, which I’m sure was a none-too-popular decision in the prosecution camp.
Judge Willis ruled that Steven Avery’s sexual assault of his niece had no relationship to the charges he currently faced and that its only “probative value” was to show that Avery had a “propensity to commit sexual assaults,” which is exactly what is forbidden by the law. He pointed out that the niece was not only an “acquaintance, but a relative of the defendant”; while Teresa Halbach was a business acquaintance and her sexual assault ended in murder.
Whatever probative value such evidence may have would be far outweighed by the prejudice which attended the introduction of such evidence, the judge concluded. The evidence is not admissible.
The prosecution fared no better with the telephone call to Melissa Hansen asking her if she’d “like to come over and have a little fun,” and his suggestion that they could “have the bed hit the wall, real hard.” I found the prosecution’s argument convincing. It occurred only one day before Halbach’s disappearance, and, as the prosecutors put it in their motion: The defendant’s failed attempt to lure [Melissa Hansen] to his trailer for a stated sexual purpose less than 24 hours before Ms. Halbach’s arrival is highly relevant to the murder and sex assault charges—so highly probative that its admissibility again appears obvious.
But it wasn’t so obvious to Judge Willis. Since the state does not assert that Mr. Avery had any thoughts of killing Melissa Hansen, he wrote, it has not clearly articulated any reason for admission of the Melissa Hansen evidence (on the murder charge). Nor, the judge wrote, [do I] perceive any meaningful relationship between the offered other acts evidence and the first-degree sexual assault charge.
As I read further and considered Judge Willis’s reasoning, I thought he was right. The offered evidence would show that the defendant attempted to induce Melissa Hansen to come to his residence to have sexual relations with him, he explained. However, it also shows that he asked her to do so voluntarily and when she spurned his advances, he did not pursue the matter any further. That is a far cry from kidnapping a business acquaintance, sexually assaulting her, and then murdering her.... The evidence is clearly inadmissible.
I thought Avery’s strangulation of Jodi Stachowski, occurring months, not years before Teresa’s murder, stood a better chance. But again, after reviewing Judge Willis’s decision, I thought he was right. The defendant’s alleged behavior against Jodi Stachowski is significantly different (than the murder of Teresa), he explained, both in terms of the nature of the acts involved and Avery’s relationship to her. Domestic violence is unfortunately an all-too-common occurrence in today’s world.
The prosecution also wanted the jury to hear about Avery and Jodi’s sexual habits—information I would have omitted from these pages if they did not have some bearing on his state of mind around the time Halbach was murdered.
Jodi told investigators that Avery kept pornographic magazines and movies all over the house. They had sex every day, sometimes as many as five times a day, she said, and several times they experimented with bondage and had sex after he tied her up.
The prosecution also seized upon statements from a few of Avery’s former fellow inmates—unaffectionately known as “jailhouse snitches”—that he planned to build a “torture chamber” when he got out. Avery shared with them details of how he would rape, torture, and murder young women. From the prosecutors’ perspective, all of this evidence was highly relevant to Halbach’s murder and the horrific manner in which she died.
Again, despite our natural reluctance to consider these things, I thought the prosecutors had a point. However, that’s not how Judge Willis saw it.
The Court fails to find any meaningful relationship between the other acts evidence and the charged offense. There is not a significant relationship between men who are unusually sexually active with their girlfriends and those who commit forcible assaults against some other victim, the judge wrote. The evidence has virtually zero probative value and would be highly prejudicial. It is clearly not admissible.
One of the deciding factors for determining whether “other acts” evidence should be admitted at trial is its nearness or remoteness in time—how long ago did the event occur? Most of the rest of the evidence offered by the prosecution was two decades old, which was a major factor in the judge’s decision to exclude it.
The court was especially unimpressed with the state’s argument that the jury should be allowed to consider Avery’s throwing the cat in the fire nearly a quarter century earlier. In unusually blunt language—particularly from him—Judge Willis could find “no serious argument” to the state’s contention that Avery’s “placing the object of his torture,” as the prosecution had referred to the cat, bore a “striking similarity” to the burning of Halbach’s body after the murder.
* * *
As I wrapped up this stage of my journey, I wondered if the court made the right call. Judge Willis’s rejection of all the “other acts” evidence the state wanted to present to the jury was, I’m sure, met with dismay by the prosecution team. They undoubtedly thought it was inordinately favorable to the defense.
Like so many other standards in the law, whether the “probative value” of evidence is “substantially outweighed by the danger of unfair prejudice” is in the eye of the beholder. The eyes of a cautious judge, like Judge Willis, rarely behold “other acts” evidence worthy of admission. I’m sure he was guided by what he believed the law required, and there is no doubt that erring on the side of the defense is the better part of valor when it comes to having a conviction upheld on appeal. Steven Avery certainly received a fair trial.
On the other hand, the jury had returned a ve
rdict of not guilty, the consternation concerning the court’s decision not to admit all that damning evidence against Avery would have rivaled the level of discord throughout the state of Wisconsin after a Green Bay Packer loss.
CHAPTER 15
A MOUNTAIN OF EVIDENCE AND A MOLEHILL OF DOUBT
Rummaging around in Steven Avery’s past had not been a pleasant task—at least examining his history of violence and sexual deviancy hadn’t been—but it provided a context with which I could approach his actions leading up to and through the day Teresa Halbach disappeared. Not bound by the “other acts” evidence rules of evidence—a man’s liberty, after all, was not in my hands—I was free to consider his prior criminal conduct in my pursuit of the truth. There was no escaping the fact that Avery posed a grave risk to women he was close to, as well as to those who had the misfortune of crossing his path.
There are more than enough sexually aggressive and violent men to fill the nation’s prisons and jails, but not many of them have the capacity to commit a murder as horrific as the one Avery is alleged to have done. When coupled with the fact that he was the last person known to have seen Teresa Halbach alive, Avery was a likely suspect, perhaps the main suspect.
I had to be careful not to give Steven Avery’s propensity for violence more weight than it deserved. His prior crimes of physical and sexual violence did not prove, in the words of the “other acts” evidence statute, that he had acted “in conformity therewith” on this particular occasion. As the stockbrokers are fond of saying, past performance does not guarantee future results.
For this final leg of my journey, I had to examine Avery’s conduct, both his actions and his words, before, during, and after Halbach disappeared—hour by hour, minute by minute, if I could.
In fact, it turned out I had to begin my journey ten months before she disappeared.
* * *
Alison Lang, Teresa Halbach’s predecessor at Auto Trader magazine, was in charge of Manitowoc County and the surrounding area until Halbach took over in spring 2005. On January 25, 2005, she was assigned to take a photo of a vehicle at Avery’s residence. She knocked on his door and he said he’d be right out, so she took the photos of the vehicle and then asked what text he wanted to use for the ad. Avery said he forgot to write one up and went into his trailer.
After taking much longer than normal to draft a few lines, Avery ducked out and asked Lang, who had been waiting on the porch, if she wanted to come in. She told Avery it was against Auto Trader policy to go inside a customer’s residence, so she went to wait in her car. He “creeped me out,” she told police because of the way he was staring at her.
Teresa Halbach had a similar experience on one of her prior dealings with Avery.
On October 10, three weeks to the day before she disappeared, Halbach did a “hustle shot” for Avery, which is an assignment taken at the customer’s request and not through the photographer’s employer. In other words, Avery had contacted her directly and asked her to come out to the salvage yard. When she arrived, the silver 1984 Pontiac Grand Prix that he was putting up for sale was parked right in front of his garage, closer to his trailer than the cars were in most of the other appointments she had with him, when the cars were parked either up front outside the office or closer to his sister Barb’s residence. The receptionist at Auto Trader told police that Halbach confided in her that on one prior occasion, probably the October 10 appointment, Avery had come out wearing nothing but a towel. Halbach was concerned by the incident.
On November 4, Halbach’s colleague in her freelance business, Thomas Pearce, told police that Halbach had received repeated calls on her cell phone recently from an unknown number. She told him she had received similar calls from early to midsummer, but they’d stopped until right around the time of her October 10 appointment with Avery. The caller would never leave a message; and as far as Pearce knew, she never answered the calls. She also told him one of her male customers had invited her into his residence and made some comments that made her uncomfortable enough that she decided to leave. Pearce had warned her to be careful when she was alone in rural areas.
Avery had purchased leg irons on October 9, the day before he called Halbach and then met her wearing only a towel. Jodi Stachowski, his girlfriend who told police about their daily sex life, was in jail at the time, serving a sentence on her drunk-driving conviction. Had Avery, deprived of his daily sexual relations with Stachowski, planned to assault Halbach, but lost his nerve? When police searched his residence after the murder, they found a picture of an erect penis on his computer desk with an indication it was taken on October 10, the day he had called Halbach.
* * *
It was time to examine the events of October 31. Was there more I could learn about that day that might bring me closer to the truth?
One thing I learned was that Avery didn’t own the van he called Auto Trader to take a photo of that day. It was his sister Barb’s, and she didn’t even want the vehicle sold. Two weeks after Halbach disappeared, Barb told two state investigators that she got into an argument with her brother about selling the van. She did not want a picture of it in Auto Trader because she was going to keep it for one of her sons, who was getting his driver’s license. Barb said her brother was very demanding and told her she was doing a bad job raising her kids.
By having Barb sell her vehicle, Avery could use her name to set up the appointment—and that’s exactly what he did. Barb lived with her sons, Bryan, Bobby, Blaine, and Brendan, at the salvage yard right next to Steven Avery’s trailer.
The receptionist stated that when she took the call for Auto Trader on October 31, at eight-twelve a.m., it was from “somebody who identified himself/herself as ‘B. Janda’” (Barb’s married name is Janda), and was “difficult to understand.” The caller gave her Barb’s home phone number and address and also asked her to send the same photographer “who had been out there before.”
The receptionist told the caller that they typically needed more than twenty-four-hour notice, but she’d see what she could do and someone would get back to him as soon as possible.
Why did Avery give Barb’s telephone number? Not only did she not want to sell her van, she would be at work all day and not home to meet with the photographer. If he gave the receptionist his cell phone number instead, he could be reached when they called him back. And why did he use “B. Janda” and not give his sister’s full name? B could be the first initial of a male or female name—maybe that had something to do with it. Was Avery trying to hide his identity from Halbach? He knew he made her feel uncomfortable at the last appointment and she would probably not want to come back.
This scenario seemed likely, and as I investigated further, I found out that it worked—Teresa Halbach had no idea she was meeting with Steven Avery that day.
At nine forty-six a.m., the receptionist left Halbach a voice mail asking if she could fit in an appointment that day for “B. Janda,” adding that she couldn’t find a record for him, but the caller said she had been out there before. The receptionist gave Halbach the name and number Avery had given her and asked Halbach to call her back and let her know if she should schedule the appointment for that day or for the following Monday instead.
What would Teresa Halbach have thought? The receptionist had told her that she could not find a “B. Janda” in their system because they go by phone numbers, not names. Halbach would have recognized the address as the Avery Salvage Yard, but with the information she was given, she would assume she was meeting with “B. Janda,” not Steven Avery.
As I thought back to my late-night binge on Making a Murderer two months earlier, I was struck by the series’ portrayal of how Halbach’s appointment with Avery came about that day. His eight-twelve a.m. phone call requesting a photo shoot from “that same girl they sent out last time” was omitted; as was any hint that if she knew it was Avery who had called for the appointment that day, she probably would have never gone to the salvage yard. There was no mentio
n that Avery’s sister, Barb, owned the van, or that Barb didn’t even want to sell it, or that he used the name “B. Janda” when he set up the appointment and gave Barb’s home phone number instead of his own.
I remembered hearing the message that Halbach left for someone that viewers could only assume was Steven. In reality it was left on his sister Barb’s answering machine. By withholding that fact the series gave the clear impression that she was willing to meet Avery that day—something that could not be any further from the truth. She even asked to be called back as she did not yet have the address.
“Hello. This is Teresa with Auto Trader Magazine. I’m the photographer, and just giving you a call to let you know that I could come out there today, in the afternoon. It would probably be around two o’clock or even longer, but if you could, please give me a call back and let me know if that will work for you, because I don’t have your address or anything, so I can’t stop by without getting a call back from you. And my cell phone is 920-737-**** Again, it’s Teresa 920-737-****. Thank you.”
Halbach had just unknowingly told the man who would murder her later that day—I was having fewer doubts by the minute—that she would meet him at the salvage yard in just a few hours.
As I looked closer at the timing of events, it was obvious that Steven Avery had planned his day around Teresa Halbach’s expected appearance at the salvage yard. Steven told his brother Earl before lunch that he had to go home because someone was meeting him from the magazine. The receptionist told him that morning he would get a call at the number he left—his sister Barb’s home number—to let him know if “the same girl they sent last time” could fit him in that day. Earl later told police that Steven had to go home to meet someone for an appointment—somebody from the Auto Trader, Earl thought.
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