Indefensible

by Michael Griesbach

  It was unlikely I would find anything. If they had blackmarks on their records they would have been found by Strang and Buting and used to Avery’s advantage in court.

  As I sifted through their files, I saw a trend. The two qualities that stood out most were professionalism and integrity. I wasn’t surprised. I’ve known both Colborn and Lenk for decades and their personnel files only confirmed my impression.

  I’ve shared examples throughout the book to show that they aren’t the villains they were made out to be. They were cast in that role without an audition because someone had to play that part. In the interest of full disclosure, I did find one mark on Colborn’s record. He caused some minor damage to his squad car on one occasion. Aside from that, I really couldn’t find any other negative information. Allow me to introduce you to the real Andrew Colborn.

  * * *

  After graduating from high school, Andy Colborn served for twelve years in the United States Air Force. When he was honorably discharged in 1988, his final rank was that of staff sergeant E5. He won awards and medals for meritorious service, and his dedication, along with relentless and unselfish devotion, are cited repeated by his superiors.

  “Exceptional performance and leadership” and “outstanding daily performance and contributions” led to his status as a noncommissioned officer in March 1982.

  In February 1992, Colborn was hired as a corrections officer at the Manitowoc County Jail. This was the time frame when he took a phone call and transferred it to another party in the Detective Unit to investigate. Although he had no authority to do anything other than transfer the call, he was accused of hiding evidence that would have exonerated Steven Avery a decade earlier than he was.

  Colborn held that position until March 23, 1996, when he was hired on as a sworn law enforcement officer with the county sheriff’s department. Over the years he received awards and recognition, promotions, and took on many tasks and roles: evidence technician and photographer, grants management and field-training program leader are just a few. In 2013, he received the Officer of the Year Award for his work with domestic violence victims and was nominated three other times.

  Lieutenant Colborn quickly earns and maintains the highest level of trust by being sincere and honest with others. His integrity and standards of business ethics are unquestionably high. He is especially respectful and shows a great deal of consideration in dealing with people. I have observed Lieutenant Colborn communicate and develop information from very hesitant and unwilling victims in several sexual assault cases. Lieutenant Colborn’s demeanor and attitude makes for a comfortable presence during these contacts. He is a strong supporter of organizational values and actively upholds them through all aspects of his work. He can always be trusted to honor his commitments.

  Jim Lenk’s records show the same glowing reports of professionalism and integrity, not one involving discipline. Lenk is retired now, with his wife to Arizona, where it’s warm. The last few years he’s been battling a medical condition. His wife told me she thinks Making a Murderer has been bad for his heart.

  For months now, I’ve seen my share of Andy Colborn and Jim Lenk memes. Their key-finding skills have been the brunt of Internet jokes.

  A friend of mine spoke to Colborn about Making a Murderer and how he felt about it. He responded that he hadn’t watched it, but had heard about it. When asked what he’d say to defend himself, his response spoke volumes about who he is.

  “Thank you, that’s very kind of you, but this isn’t about me. It’s about Teresa.”

  CHAPTER 18

  THE CONFESSION

  The most damning piece of evidence against Steven Avery, at first glance, appears to be the confession of his nephew and accomplice, Brendan Dassey. Ken Kratz shocked all who watched his March 2, 2006, press conference when he described Dassey’s statement in excruciating detail:

  “I know that there are some news outlets that are carrying this live, and perhaps there may be some children that are watching this. I’m gonna ask that if you’re under the age of fifteen, that you discontinue watching this press conference. We have now determined what occurred sometime between three forty-five p. m. and ten or eleven p.m., on the thirty-first of October. Sixteen-year-old Brendan Dassey, who lives next door to Steven Avery in a trailer, returned home on the bus from school about three forty-five p.m. He retrieved the mail and noticed one of the letters was for his uncle, Steven Avery.

  “As Brendan approaches the trailer, as he actually gets several hundred feet away from the trailer, a long, long way from the trailer, Brendan already starts to hear the screams. As Brendan approaches the trailer, he hears louder screams for help, recognizes it to be of a female individual, and he knocks on Steven Avery’s trailer door. Brendan says that he knocks at least three times and has to wait until the person he knows as his uncle, who is partially dressed, who is full of sweat . . . opens the door and greets his sixteen-year-old nephew.

  “Brendan accompanies his sweaty forty-three-year-old uncle down the hallway to Steven Avery’s bedroom. And there they find Teresa Halbach completely naked and shackled to the bed. Teresa Halbach is begging Brendan for her life. The evidence that we’ve uncovered . . . establishes that Steven Avery at this point invites his sixteen-year-old nephew to sexually assault this woman that he has had bound to the bed. During the rape Teresa’s begging for help, begging sixteen-year-old Brendan to stop, that “you can stop this.” Sixteen-year-old Brendan, under the instruction of Steven Avery . . . cuts Teresa Halbach’s throat . . . but she still doesn’t die.”

  For all who heard this press conference, and believed that it was true, Dassey’s confession was the last straw for Steven Avery. Here was a potential alibi witness, a person whom Avery had told Jodi he was with on the night of Halbach’s murder. Yet, instead of coming forward and saying that he was with his uncle that night, and there was no way that his uncle could have murdered Halbach, Dassey came forward with details about how he and Avery brutally sexually assaulted and murdered Halbach. It left all, including myself at the time, shocked and convinced that Steven Avery was guilty. But like all things with the Avery case, Dassey’s confession is not necessarily what it appears to be on first sight.

  Confessions are odd things. Prosecutors love them, and defense attorneys hate them. In the end they are nothing more than statements, but juries often give a confession more weight than hard scientific evidence. They readily dismiss the drunk at the bar who brags about bringing his car up to 150 miles per hour, but they have a difficult time grasping the possibility that a defendant who confessed might not have been telling the truth. To be fair, false confessions are counterintuitive. Why would someone confess to a crime, especially a murder, and face going to prison for the rest of his life if he did not in fact commit the crime. On the surface, it makes no sense, but the truth is that it happens more often than you think.

  Dassey’s confession was never admitted into Avery’s trial because a deal had not been cut, hence the prosecution could not call Dassey to the stand, and a police rendition of the confession would be inadmissible hearsay. As such, the jurors, most of whom knew all about the confession were instructed to put it out of their minds. Leaving aside whether that’s even possible and how hard the jurors may have tried the confession is still worthy of our attention because if true, it is the most solid evidence that Avery is guilty. It’s also worth exploring because the methods of interrogation that elicited it understandably upset a great many viewers of Making a Murderer. As with many other things, my own opinion about Dassey’s confession drastically changed after I watched Making a Murderer.

  As the trial unfolded in 2007, everything I knew about Dassey’s confession came from Kratz’s press conference. From his secondhand account, there was little reason to doubt its truthfulness, or for that matter, its voluntariness. Making a Murderer, in the eyes of many of the viewers, showed otherwise.

  The documentary showed a quiet, troubled, sixteen-year-old boy. He sat in a bleak room
on a small sofa with two middle-aged investigators appearing sympathetic and concerned, but not very convincingly. The two officers were displaying more than a fair amount of anxiousness, in their all-too-eager desire to get the goods on Steven Avery. Dassey leaned back into the sofa, almost never looking up, occasionally gnawing on a fingernail or two. He took his time responding to questions, and when he did respond, it was often nearly inaudible. It took all of thirty seconds for a theme to emerge from the investigators’ questions:

  “We know there were some things you left out. And we know there were some things that maybe weren’t totally correct that you told us. We’ve been investigating this a long time now. We pretty much know everything. If, in fact, you did some things, and we believe some things may have happened that you didn’t want to tell us about, it’s okay.... As long as you are honest with us, it is okay.”

  Dassey’s most common response to a question was silence. He never lifted his head.

  Things took a turn for the worse when the investigators used leading questions in order to get some very important information that Dassey appeared not to know:

  Wiegert: Come on. Something with the head.

  Brendan? What else did you guys do? Come on.

  What he made you do, Brendan. We know he made you do something else. What was it? What was it? We have the evidence, Brendan. We just need you to . . . to be honest with us.

  Brendan: That he cut off her hair.

  Wiegert: He cut off her hair? Okay. What else? What else was done to her head?

  Brendan: That he punched her.

  Wiegert: What else? It’s okay. What did he make you do?

  Brendan: Cut her.

  Wiegert: Cut her where?

  Brendan: On her throat.

  Wiegert: You cut her throat? What else happens to her? In her head? Extremely, extremely important you tell us this . . . for us to believe you. Come on, Brendan. What else? We know. We just need you to tell us.

  Brendan: That’s all I can remember.

  Wiegert: All right, I’m just gonna come out and ask you. Who shot her in the head?

  Brendan: He did.

  * * *

  I was stunned. If I had known the circumstances of Brendan Dassey’s confession in 2006, when Kratz held his press conference, I would not have been so easily convinced of his and Avery’s guilt. In court, when questioning one’s own witness, an attorney is prohibited from using leading questions, and for good reason. Leading questions suggest an answer. The concern is—and it is a legitimate concern—that an attorney will shape the witness’s testimony if he is allowed to ask leading questions. The attorney might as well just take the stand and tell the jury what he wants it to hear. The same problems are at work when police use leading questions to interrogate a suspect; the suspect’s responses are not only used by the police to shape their investigation, they are admissible in court.

  After watching Making a Murderer, I was convinced that Dassey’s confession at a minimum, wasn’t reliable—which is a slightly different issue than whether it is true. So, in keeping with my overall plan to journey through the Avery case, I dug deeper into its details.

  When it comes to confessions, there are two questions. One, is it true? And second, is it reliable? The voluntariness of a confession, which is what the law is traditionally most concerned with, has more to do with whether a confession is reliable than it does with whether it is true. If the defendant was coerced into making the confession, the law prohibits its use at trial because its reliability is in question, and people should not be imprisoned based upon unreliable evidence. The confession may very well be true, but it also might not be.

  When determining whether a confession is admissible, the courts only look at whether the confession was voluntary. By considering the circumstances surrounding the confession, the judge is supposed to determine whether a confession was voluntarily made. Was there police misconduct? Did the police physically coerce the defendant? Did they place undue mental or emotional pressure upon the defendant? For how long was the defendant interrogated? What is the defendant like? How old is he? Is he intelligent? Was he fed? What is his education level? Is he easily manipulated? All of this should enter into the judge’s analysis. If the defendant voluntarily made the confession, it is admissible; if not, it is not admissible. The courts are not supposed to let the truthfulness of a confession influence their analysis of whether it is voluntary. They are two separate questions. An involuntary confession is inadmissible even if it can be shown to be true.

  Before Brendan Dassey’s trial, Judge Jerome Fox ruled that his confession was voluntary and allowed the state to admit it at trial. Dassey’s attorneys raised the issue on appeal, but the Court of Appeals affirmed the lower court’s ruling. Dassey has now raised this issue in federal court, and the parties anxiously await its decision.

  The task of deciding whether a defendant voluntarily made a confession is not an easy one. It requires one to view police conduct from the perspective of the defendant. Only the circumstances surrounding the confession and the defendant’s personal characteristics can be considered. Readers need to decide for themselves whether Dassey’s confession was voluntary, but there are some things to consider that were not presented in the documentary.

  * * *

  After watching Making a Murderer, I viewed the entire four-hours March 1, 2006, video taped interrogation of Brendan Dassey. It was painful to say the least. Here are my observations, which I’ll state in an overview first and then in detail:

  Brendan was not physically hurt. He was not physically threatened. In fact, his interrogators never raised their voices. In a nutshell, Investigator Mark Wiegert and Special Agent Thomas Fassbender, sometimes unfairly dubbed “Liegert” and “Fact-bender” by critics, did not force, threaten, hurt, or yell at Brendan. They offered him breaks, snacks, and drinks to keep him comfortable.

  None of this means that Dassey voluntarily confessed. The days of false confessions caused by overt police intimidation and brutality are thankfully, for the most part, in the past. Today most police departments use a method of questioning called the Reid Technique. It is very effective in obtaining confessions, which is great if the police have the correct suspect. However, it is also prone more than some would like to admit to obtain false confessions. This is especially true in the case of young, poorly educated, and easily manipulated individuals, who are already at a higher risk of falsely confessing, like Brendan Dassey.

  The Reid Technique has two stages. First the interrogator asks simple questions to lower the suspect’s guard and get a feel for when he is telling the truth. Then the interrogator begins asking substantive questions about the crime. Interrogators are trained in the “skill” of detecting when suspects are lying or being evasive. Once the interrogator determines the suspect is lying and is involved in the crime in some way, he moves on to the next stage, which is to elicit a confession.

  The biggest problem with the Reid Technique is that an interrogator cannot accurately determine whether a suspect is lying. In fact, studies have shown that officers trained to detect lies are slightly worse at doing so than others, most likely because they deal with criminals on a regular basis and are more likely to assume deception. That bias poses a problem because the officer may proceed with the interrogation with an unfounded confidence in the suspect’s guilt, aiming for a confession instead of the truth.

  The second stage of the Reid Technique is eliciting the actual confession. The interrogator will control the discussion and go off on long monologues. He may act as if he knows everything and is simply trying to help the suspect get off as easily as possible “if he only tells the truth.” Sometimes the interrogator will try to get the suspect to admit guilt in some mitigated manner. He will try to provide the suspect with an “out,” even though it will really be an admission of guilt. If done effectively and for a long-enough period of time, such techniques can be emotionally taxing upon a suspect to the point that he falsely confesses. It
has happened before, and many believe that it happened to Brendan Dassey.

  Independent of whether Dassey’s confession was voluntary is the question of whether the details he gave in his statement were true. From some of the segments of his interrogation that were played in Making a Murderer, it seemed as if he did not know details about the murder that he should have known if he and his uncle Steven had killed Halbach in the manner he confessed. Why couldn’t he remember that Avery shot her in the head? Why did the police have to suggest this fact in their questioning before he could answer it?

  I went back and looked at the reason that police were speaking to Dassey in the first place. After all, Making a Murderer insinuated that police “targeted” him in order to build a more solid case against Avery. But this seems unlikely because there was plenty of evidence against Steven Avery by the time Brendan Dassey confessed. Avery was already in jail on high cash bail, having been arrested four months earlier.

  I learned that Dassey’s confession on March 1, 2006, shown in Making a Murderer, was not only an extremely small clip of the entire interview, but it also contained spliced footage. Furthermore, it was not the first time they had spoken to Brendan Dassey. It was the fourth.

  The first time police interviewed him was at the same time as the rest of the family in November 2005. Law enforcement was unaware of much of the evidence leading to Steven Avery at the time. They were just trying to ascertain what occurred by speaking to potential witnesses, and hoping to get a few leads to look into. When Dassey was interviewed, he told them minor details of that day, none of which implicated himself. Police didn’t consider his involvement again, until months later, but not without good reason.