Indefensible

by Michael Griesbach

  Steven admitted the same to a detective at the family’s cabin up north where he and some of the other family members, including Brendan Dassey, had gone on the weekend following Halbach’s disappearance. He told the detective that he had worked at the garage at the salvage yard until eleven that morning; then he went up to his trailer to wait for the photographer.

  “On Monday, after Teresa left, you didn’t go back to work,” the detective asked him. “Why not?”

  “Well, I made some, couple phone calls,” Avery replied.

  “Okay. But you didn’t go back to the shop.”

  “No, no.”

  “You stayed in your house. Did they know that? Did Chuck and Earl know that you’re not coming back after lunch, or whatever?”

  “No, no, they didn’t know that.”

  The detective pressed further: “Is it unusual—I mean, did they care?”

  “Oh, yeah, they care,” Avery assured him.

  “Okay, but I mean, can you just kind of come and go like that, as you please?”

  “No, I mostly . . .”

  “Is it common?”

  “This is the first time that I stayed home.”

  Interviewed months later by Calumet County investigator Wiegert, Jodi Stachowski said the same thing.

  “Would he ever come home from work during the day?”

  “Never,” replied Jodi, though she later qualified her answer by saying, “Once, maybe twice he came home.”

  “Otherwise he’d stay at work all day?”

  “Uh-huh. He’d eat up at his mom’s and stay there.”

  When questioned by the detective at the family cabin up north about what he did after leaving work that morning, Steven Avery said he spoke with Bobby Dassey, Barb’s son and Brendan’s brother, who lived next door to his trailer.

  But that’s not what Bobby said. Interviewed by Investigator Wiegert back in Manitowoc on the same day, Bobby said he worked third shift and was home sleeping that afternoon. No, he said, he had not spoken with his uncle Steven at all that day.

  Did Avery go to Barb’s house after leaving work that morning to see if Auto Trader had called? If so, he would have heard Halbach’s eleven forty-three a.m. voice mail on Barb’s answering machine, saying she would be able to make it later that day. Only Steven Avery knows and he isn’t talking, but it sure looked that way to me.

  * * *

  The pace of events picked up as the lives of a victim and her assailant were about to intersect. Halbach arrived at George and JoEllen Zipperer’s residence on Highway B, outside of Manitowoc, to take a picture of a ’77 Firebird they had up for sale, around two-fifteen that afternoon. JoEllen later told police that Halbach was smiling ten minutes later as she walked back to her car, but JoEllen was in the backyard and did not see which direction the photographer went as she left the property.

  Cell phone records indicate that Avery called Halbach’s cell phone at two twenty-five p.m., about the same time she left the Zipperer residence. He used the *67 function again, making it an anonymous call.

  Two minutes later, at two twenty-seven p.m., Halbach received a return call from the receptionist at Auto Trader, Teresa told her she’d be able to go get that photo at the salvage yard, and said she was on her way there right now.

  Avery called Halbach a second time, at two thirty-five p.m., again using *67 to block his identity. The call lasted zero seconds, which meant Halbach didn’t answer that call. But as far as Avery was concerned she did even better—she arrived at his residence approximately ten minutes later.

  Out of curiosity, a detail-oriented Avery-obsessed Redditor friend of mine checked Avery’s other fourteen calls that day, and learned that in not one of them besides those two to Halbach, did he use *67. His other calls included four to family members, one unblocked call to Halbach after she died, one to Auto Trader, and the eight remaining to various businesses and government agencies.

  Whether or not Avery planned ahead of time to murder Theresa at the salvage yard that day, there was little doubt that he lured her there with the intent to rape her. Why else would he leave the name “B. Janda” with her employer and give them his sister’s home phone number to call back? What made him decide to take off work that afternoon, something he almost never did? Why did he keep changing stories with police about his interaction with Halbach that day?

  Steven Avery had arranged, if not a murder, an assault. There was no doubt in my mind.

  * * *

  I had learned everything I could about the hours leading up to Teresa Halbach’s arrival at the salvage yard. Now it was time to examine what happened after she got there.

  Bobby Dassey told police he saw her drive up; he witnessed this from his window as he got up at approximately two-fifty p.m. After that, things get sketchy until four thirty-five p.m., when records indicate that Avery placed a call to Halbach’s cell phone. Although by that point it either was powered down or destroyed, for there was no cell site communicating with the phone. Avery later told police that he was hoping to catch her so she could come back for a hustle shot before she drove too far, but if he had already killed her, it would be a good way to cover his tracks. There was no reason for him to think she was still in the area, because he placed the call nearly two hours after, by his own account, Halbach had left.

  If Avery killed Halbach, as all the physical evidence and Brendan Dassey’s confession suggested, what did he do with her body after he murdered her?

  Earl Avery and his brother-in-law Robert Fabian provided information to Calumet County investigators that might give us a clue. They had been rabbit hunting and drove up in the family’s golf cart—the Averys use it to get around the salvage yard—to Steven’s trailer home, at about five that night. They noticed Steven unloading his snowmobile off a trailer, which they both found rather odd.

  Earl thought something was wrong with Steven. He was in a daze, standing straight up, stiff as a board, and staring at the snowmobile or looking down at the ground. Steven was clean and had showered, but he did not at all look relaxed.

  Steven was planning to sell the snowmobile or trade it in to TA Motorsports in Manitowoc, so it didn’t make sense to Earl that he was unloading it off the trailer and storing it in his garage. He’d have to reload it later and take it to town.

  Robert Fabian spoke with investigators on November 10. He said he could see smoke coming from the burn barrel in front of Steven’s residence when he and Earl drove up in the golf cart. It smelled like plastic, he said. Also, Steven’s garage door was closed and his pickup truck had been parked so that it blocked the view of the inside of the garage.

  Robert told the officer he saw Steven walk outside toward his pickup truck with his snowmobile already on the trailer. It looked like he had cleaned up, as Robert put it, and he had changed into a white short-sleeved T-shirt and blue jean shorts from what he was wearing when Robert first arrived. Robert and Earl drove up in the golf cart and tried to chat with Steven for a while, but he was quieter than usual. Steven was very quiet, Robert continued, and didn’t even chuckle when Robert asked him if wanted to buy a Polaris instead of the Ski-Doo on the trailer, though it was some kind of standing joke between the two of them.

  Calumet County investigator Wendy Baldwin and Special Agent Kim Skorlinski from DCI (the state police division) interviewed Barb Janda. Barb said three of her sons—Blaine, Bobby, and Brendan—were all inside the house when she came home from work at five o’clock. When her boyfriend, Scott Tadych, dropped her off between seven forty-five and eight p.m. after visiting his mother, who had back surgery that day, she saw a fire in the pit behind her brother’s garage. According to Barb, it was about three feet high, though other witnesses would tell police it was higher.

  Barb saw two people standing near the fire. She couldn’t tell who they were, but she mentioned that her son Brendan had been spending a lot of time with his uncle Steven lately. Brendan didn’t have a lot of friends and he helped his uncle with stuff around his house.


  Later, Barb told investigators that Brendan had helped her brother Steven clean up his garage the evening Halbach disappeared and his jeans had been stained with bleach.

  * * *

  Police interviewed Steven Avery several times. He was cooperative and answered their questions at first.

  After a confession the next best thing for a prosecutor is a series of conflicting statements from a suspect who thought he could talk his way out of being in trouble. Inconsistent statements can be put to good use by suggesting at trial that the defendant was lying.

  A more savvy offender will exercise his right to remain silent—“Sorry, Officer, I’d rather not talk today, but I’ll call my lawyer to tell him you stopped by.” It’s one of the things that every criminal defense attorney worth his salt reminds his clients for next time they get in trouble. The right to remain silent applies not only on the streets, but also in the courtroom. If an officer or a prosecutor comments on a defendant’s silence, it’s grounds for mistrial because it violates a defendant’s Fifth Amendment right not to be compelled to incriminate himself.

  Avery could have said nothing, but instead he spoke freely with the police and gave them inconsistent details about his contact with Teresa Halbach. He also spoke with family members and anyone else who would listen to him. It would all come back to haunt him at trial.

  When Robert Fabian first arrived to meet Earl around four-thirty, he overheard Chuck ask Steven if the photographer from Auto Trader had arrived yet. Steven replied that no, she hadn’t shown up yet.

  When Jodi Stachowski called collect that night at eight fifty-seven p.m. from the jail, Avery didn’t say anything about a photographer. Although he did tell her Brendan Dassey was over and that he had been doing some cleaning.

  Three days after Halbach was murdered, on November 3, Avery called Auto Trader and told them that the photographer had not made the scheduled appointment at the salvage yard on October 31. He said Halbach notified him by phone that she wouldn’t be able to make it after all.

  Later that same evening Avery told Andy Colborn, who had driven out to the salvage yard between six-thirty and seven-thirty, that Teresa Halbach was there on October 31 and took pictures of the van, but he only saw her from his window and never spoke to her. She had only been there for a few minutes and then she left. Colborn recounted his conversation with Steven Avery from the witness stand at Avery’s trial, with Ken Kratz doing the questioning.

  “Did you inquire of Mr. Avery whether or not he had personal contact with this woman on the date she was out there?”

  “I asked Mr. Avery if she had said where she was going. And he said, ‘I never talked to her. She was only here five or ten minutes and she left.’ ”

  “But he never talked to her?”

  “That’s what he told me, he never talked to her.”

  “Did he describe that further, how he knew she was there?”

  “He said he saw her out the window taking the pictures.”

  Avery’s memory changed when he was interviewed by the police again the following day.

  It was November 4, now four days after Teresa disappeared. After Calumet County investigator Mark Wiegert requested their assistance, Detective Dave Remiker and Jim Lenk drove out to the salvage yard and spoke with him from ten-twenty until ten thirty-five a.m. This time Avery said he had engaged in small talk with Teresa Halbach and that she had been in his trailer, where he paid her for the job.

  “All right,” Kratz asked Remiker during the trial, “at that time, Detective Remiker, did you have any reason to believe that Mr. Avery had been involved in this missing person’s case? In other words, other than information that you’d received from Calumet County?”

  “No,” Remiker replied. “He said he had contact with her. He said that she had been in his residence, where he paid her for the services, and said, ‘Hi, how are you doing?’ Some small talk.”

  * * *

  During the two years since his exoneration, Steven Avery had become a hero of sorts—an improbable, yet compelling icon of innocence. A legendary survivor of an imperfect court system, he was accustomed to wearing the mantle of victimhood with ease. Holed up at the family cabin up north, Steven called in live to the Nancy Grace show shortly before being charged with Halbach’s murder. He shared his troubles with America and accused the sheriff’s department of framing him in revenge for his thirty-six-million-dollar wrongful conviction lawsuit.

  “Mr. Avery,” Nancy Grace asked, “why do you feel that you’re being framed?”

  “Because every time I turn around, the county’s always doing something to me.”

  When asked about the tooth fragments and bones that were found in his fire pit, Avery explained that the salvage yard was rarely locked and anyone could just drive right in.

  “I worry about it every minute,” he said. “I look out the window. Is a squad car here? Are they going to pick me up? When are they going to pick me up? When I’m sleeping, are they going to come in? I always have that fear.

  “I think Manitowoc County is trying to set me up real good because they’re taking everything,” he said, “but they don’t seem like they found anything because there ain’t nothing there. They’ve been watching us. They’ve been sitting up by the end of the driveway. But I’m done talking to them.”

  On November 9, 2005, Avery was charged with being a felon in possession of a firearm—the sexual assault and murder charges would be added later. Two days later, the governor was scheduled to appear in the Manitowoc courtroom where Avery was wrongfully convicted twenty years earlier to sign into law a criminal justice reform bill that was to bear Avery’s name.With news of the legislation’s namesake’s arrest, the ceremony was promptly called off. The “Avery Bill” was rather blandly renamed the “Criminal Justice Reforms Package.”

  CHAPTER 16

  MOTIVE AND INTENT

  I once heard from a speaker at a prosecutors’ conference that jurors in a criminal case are in a constant state of conflict—they’re afraid to send an innocent person to prison, but they don’t want to let a guilty one go free. With the exception of an occasional juror who takes a kind of perverse joy in passing judgment on another, I have found the speaker’s observation to be true—jurors have an exceedingly difficult job. The prosecutor’s job, the speaker continued, is to “ease their pain” by presenting evidence so clearly and forcefully that the defendant’s guilt is unmistakable.

  One way a prosecutor can do that is by giving jurors a credible explanation for why the defendant committed the crime—his motive, if one can be found, which is closely related to his intent. It helps them put the pieces together and allows them to leave the courtroom with their heads held high, comfortable in the knowledge that they reached a just and true verdict.

  After examining one piece of physical evidence after another in the Avery case—the RAV4, Avery’s blood inside it and his DNA on its hood latch, its ignition key in his bedroom, a bullet from his gun in the garage, and Halbach’s bones in a burn pit behind his garage—I was increasingly convinced that Steven Avery, and probably Brendan Dassey, too, were guilty as charged. The “other acts” evidence proffered by the prosecution and the circumstances in which Avery called for and met Teresa Halbach at the salvage yard the day she disappeared added to my confidence. I had arrived well beyond the point of reasonable doubt. In addition to direct evidence, investigators look for opportunity and motive. There’s no question that Avery had the opportunity to rape and murder Halbach. He was the last person known to have seen her alive, and after first denying it, he reluctantly admitted to police that he had spoken with her at the salvage yard on the afternoon she disappeared.

  But where, you ask, is the proof of his motive? There is, of course, only one place where things like motive and intent reside—in a person’s minds. It’s a dark and dreary trip—one that should only be taken with care and from which one is immensely grateful to return, but if I were to complete my overall journey, it was a
trip I had to take. I had to try to get inside Steven Avery’s mind on the day Teresa Halbach was murdered. While motive and intent are rarely apparent from physical evidence alone—and with Steven’s denial, his own words were of no help either—we can, as the courts encourage in regard to so many issues that arise in the law, infer their existence by considering the “totality of the facts and circumstances” surrounding the case.

  * * *

  My examination of Steven Avery’s motive began where most viewers of Making a Murderer ended theirs: Why would someone poised to reap millions of dollars in a wrongful conviction lawsuit run the risk of being sent back to prison? Having been led by the film makers to conclude that the police planted evidence to set up Avery for the murder, viewers naturally answered the question posed above by simply stating that, he wouldn’t. In effect, they finished their analysis of what may have motivated Avery to murder Halbach before they even began.

  But if the evidence-planting claim was nonsense, and by this time I was confident it was, then the question was worth pursuing. Why did Avery risk being sent back to prison when he was on the cusp of receiving millions of dollars? Like most questions about human motivation, the answers are best found by looking well into the person’s past, which in Avery’s case meant going back twenty years.

  Anger and frustration had settled into Avery’s heart during his years of confinement after the 1985 wrongful conviction, as evidenced by the threatening letters he sent to his soon-to-be-ex-wife Lori from prison. Add his propensity for violence and inability to control his runaway sexual desires, both of which were a deeply disturbing part of his psychological makeup long before he was wrongly convicted in 1985, and you have the makings for an unmitigated disaster when he was released.

  Prison records corroborate the fact that Avery was and would continue to be a danger to society upon his release. Eight years into his sentence, in 1993 he described himself succinctly to his caseworker at the prison in an “ORDER TERMINATING RESPONDENT’S PERIODS OF PHYSICAL PLACEMENT AND RETAINING MONITORED CONTACT BY TELEPHONE AND CORRESPONDENCE.” The caseworker’s notes read: He describes himself as an impulsive man, a person who acts out of anger, an individual who possibly would be better off if he thought before he acted.