When Making a Murderer was released a week before Christmas, 2015—exceptionally good timing for the series’ success, it turned out—I was less surprised by the widespread interest the documentary generated than I was with the extent to which the Avery story had previously been ignored. Except for a few summary accounts, as well as a lengthier piece that appeared in the New York Times, the national media largely ignored the story even after Steven Avery was arrested for Teresa Halbach’s murder. But then, a lot of interesting and tragic things happen in the Midwest that go largely ignored on the East and West Coasts.
I thought the 1985 wrongful conviction, even without the subsequent murder, warranted more attention than it received at the time. Most wrongful convictions happen by mistake or, at worst, because of overzealousness on the part of the police and prosecutors hung up on the notion of winning at all costs. Rarely are they the result of the degree of police and prosecutor misconduct that led to Avery’s wrongful conviction when—despite the contrary opinion of Wisconsin’s attorney general at the time—the former sheriff and district attorney appear to have sent an innocent man to prison and knowingly allowed the real assailant to go free.
Wrongful convictions more commonly stem from mistaken eyewitness identifications, unreliable forensic evidence, false confessions, the use of incriminating statements provided by jailhouse snitches with something to gain, a Brady violation made by the prosecution for suppressing evidence favorable to the defendant, and other instances of overzealousness on the part of police and prosecutors—all of these are serious problems in their own right. The shortcomings of the police and prosecutors in these cases fall far short of the corruption at work in those exceedingly rare cases when police and prosecutors knowingly convict an innocent man, a category to which most lawyers and non-lawyers alike who have carefully examined the Avery wrongful conviction case believe it belongs.
The creators of Making a Murderer devoted much less attention to the 1985 wrongful conviction case than I thought was warranted, which is ironic since that case contains powerful lessons of what can go wrong when police and prosecutors lose sight of their calling to uphold the law justly. Perhaps they glossed over it because video of the 1985 wrongful conviction trial was not available and reconstructing a thirty-year-old case would be difficult at best.
I should not have been surprised that it took Hollywood to give the Steven Avery story the attention it deserved. Who wants to read a book when you can watch a riveting documentary? Released at the end of a year when a seemingly endless series of police shootings of unarmed suspects produced a growing distrust of law enforcement, and combined with the resurgence of true crime in the popular media and a rapidly expanding effort of Internet giants, such as Netflix, to produce original programming, Making a Murderer rode a perfect storm to the screens of tens of millions of viewers across the globe.
For months it was the most common fodder for watercooler and coffee break discussions across the land. It made it onto the front page of the Beijing News, and Al Jazeera devoted a piece on its website to a topic close to its heart—coercive interrogation techniques of U.S. law enforcement agencies—although it’s hard to imagine a wider chasm than that which exists between county sheriff’s department detectives in rural Wisconsin and the CIA.
By its skillful use of film and sound techniques and omission of facts that belied its conclusion, Making a Murderer has all but convicted two intelligent, honest, and well-respected police officers of planting evidence to frame Avery a second time. This is a narrative now widely accepted by legions of Netflix viewers whose only familiarity with the Avery case is the documentary itself.
Transformed into would-be jurors, who are cleverly manipulated by an all-knowing judge in the form of the documentarians, viewers are shown only one side of the evidence. The prosecution’s refutation of evidence-planting claims during cross-examination and rebuttal—the “truth-seeking machinery” of jury trials, as one legal scholar put it—is minimal. Avery’s criminal history is deconstructed beyond credulity. His lighting a cat afire after dousing it with gasoline when he was twenty years old is passed off as an accident while horsing around with friends. He didn’t intend to cause any harm to his neighbor after he ran her off the road and held her at gunpoint. As Making a Murderer would have it, he did so because the woman was spreading rumors about him. Never mind that he had been using a pair of binoculars to watch her for weeks, sexually gratifying himself as she drove by. I had to admit, though, I was impressed. The skill with which the documentarians made light of Avery’s criminal history rivaled that of seasoned criminal defense attorneys whom I have seen turn sinners into saints countless times at sentencing.
Nor are viewers informed of the handcuffs and leg irons found by police in Avery’s trailer home after the murder. There was no evidence he used the items on the day Teresa Halbach disappeared, but they were in keeping with what appears to have been on his mind in the days leading up to her murder. Left out, too, was his sketch of a “torture chamber” and his fantasizing to fellow inmates about using it to sexually assault and murder young women when he got out, foretelling the atmosphere surrounding his real victim’s final hour.
Clinging to claims of objectivity, the documentarians have pointed out that truth is elusive in the Steven Avery case, which is true enough. However, by excluding facts that don’t fit their aim and manipulating others, they have distorted the truth beyond recognition and have decided for the rest of us what we are to believe. “High-brow vigilante justice” is how columnist Kathryn Schulz put it in her column about the documentary in The New Yorker (“Dead Certainty”). To which I respond, “Right on.”
Aiming to draw attention to the shortcomings of a criminal justice system badly in need of reform, the producers set out with a laudable goal, and the fruits of their labor are already contributing mightily to the ongoing discussion concerning criminal justice reform. The unwarranted certainty that some police and prosecutors have in their interpretation of equivocal facts, along with the overzealousness of some in our ranks and our tendency toward a self-righteous belief that we are always in the right, when combined with our awesome and often unchecked authority, has too often led to the abuse of power. The system’s inability or unwillingness to treat with dignity and respect those on the bottom rung of the economic and social ladder has caused unnecessary suffering for many who faced long odds of making it even before they drew the attention of the police and the courts by engaging in crime.
The documentary raises other issues, too, including the role of class bias in criminal proceedings, and the disparity in the quality of representation between those with money and those without. The cozy relationship between the media and the prosecution in high-profile murder cases is also worthy of exploration and thoughtful debate, in both legal and media circles.
The success of Making a Murderer has brought massive attention to these and other shortcomings of the criminal justice system, and therein lays its opportunity for redemption. But there are other issues at play in the Making a Murderer phenomenon that pose perhaps even a greater threat to the criminal justice system than the ones the documentarians identified.
In a world where the line between reality and entertainment is fading fast, where the impact of raw emotion routinely trumps the more reliable conclusions of reason, Making a Murderer is part of a troubling trend—the courting of public opinion in support of a cause by the production of a propaganda piece disguised as an objective documentary. Efforts like these have been around a long time, but their application to court cases is new.
In court issues of guilt or innocence are decided based on a full presentation of evidence in a process designed over centuries to ensure that both sides receive a fair trial. Rules developed over centuries are in place to make sure the finder of fact receives only reliable evidence. The documentarians in this case succeeded in transforming in the court of public opinion a disturbed and dangerous man, who murdered a young woman, into a sacrificial lamb at the altar of
police and prosecutorial power.
Steven Avery’s future will not be decided in the court of public opinion. It will be decided in a court of justice, where the decision belongs. He will get his chance to argue, through his attorneys, why he should be entitled to a new trial. The burden has shifted and he will need more than speculation that police planted evidence. The authorities got it right this time, and barring the revelation of new evidence pointing squarely to his innocence, the nation’s most famous exoneree is now “rightfully” where he belongs—in a state prison for life without the possibility of parole.
These are difficult days for law enforcement in Manitowoc County. That an injustice perpetrated by a local sheriff and district attorney three decades ago persists to this very day is one of the many profound lessons of the Steven Avery story. A deplorable injustice perpetrated on Avery thirty years ago has come full circle, and now we are paying for the sins of our forefathers. Nobody who works in the justice system is perfect—far from it. But as a court instruction reminds jurors before they begin deliberations, we have been “called upon to act in the most important affairs of life,” so we must try our hardest to do what’s right. If we don’t, an injustice can fester for years.
Readers may wonder what happened to my concern in the opening chapters of this book with respect to Wolfgang Braun and his possible involvement in Teresa Halbach’s murder. In addition to all the evidence clearly pointing to Avery’s guilt, there are other reasons I am satisfied Wolfgang was not involved. His wife, Sophie, resumed living with him in Oregon after he left Wisconsin and apparently no longer believes he was involved. Sophie was either exaggerating the facts or making them up out of fear, or perhaps even spite. I also confirmed that the memo I asked our victim witness specialist to draft concerning her suspicions that Wolfgang was involved was forwarded to Ken Kratz, who in turn forwarded them to Buting and Strang. They too apparently discounted Sophie’s statements, as Wolfgang was not included in their list of potential alternate suspects before the start of the trial.
ACKNOWLEDGMENTS
I knew I had to write a second book about the Steven Avery case at about the midpoint of watching Making a Murderer. The documentary had taken the story to a new level and had raised additional issues that I wanted to explore. A two-month sabbatical from work helped get the manuscript off the ground, but completing it in a relatively short period of time while still working as a prosecutor was not an easy task. To do so, I needed the help and support of many individuals, some of whom are listed below.
A person could spend a lifetime researching the Avery and Dassey cases, and with a limited time to complete the manuscript I did not have a lifetime to give. Fortunately there were others who were willing to share their research.
Special thanks in this regard go to Mandy H, creator of the Facebook Group “Avery/Dassey Case Discussion Group,” and two of her tenacious admins, Diana and Emma, for their diligence in researching all sides without bias and encouraging logical and factual debates. Your online discussions helped me understand and see details I may have otherwise missed.
Thanks to my editor, Michaela Hamilton, who kept me on track through the completion of this project. Michaela has been in the book business for a long time and knows what it takes to produce a successful book. She was firm because she had to be, but not once was she unkind.
I owe a special debt of gratitude to my agent, Washington DC attorney and author Ronald Goldfarb, who recognized early on the singular nature of the Avery story and the multitude of lessons it offers for the criminal justice system. Ron is an accomplished lawyer, author, agent, media commentator, and a whole lot more. I can’t think of anyone from whom I’ve learned more about the writing and publishing world than Ron, during our conversations and email exchanges over the past eight years.
I also appreciate my colleagues at work, especially Bob and Jill, for covering my court appearances during my absence, and attorney Joseph Thuermer who filled in as a special prosecutor while I was away.
A special thanks to Brenda Schuler, whose webpage outline “Wrong-Righting Writing, a comprehensive resource for events leading up to and beyond the murder of Teresa Halbach” is far and away the most thorough and accurate compilation of all things having to do with the Avery trial. Brenda is as smart as a whip. Her fierce commitment to fairness and setting things right is inspiring. Brenda, I can’t thank you enough.
Thanks also to a particularly astute Redditor who wishes to remain anonymous. You know who you are.
A warm thanks to then Green Bay, now Cincinnati television reporter Angenette Levy who covered the Avery and Dassey cases from beginning to end when she worked in Green Bay. Angenette figured prominently in Making a Murderer, probing the strengths and weaknesses of each side’s case by questioning the attorneys at nightly press conferences during the trials. She generously shared with me her perspective on the trials.
My wife and I are blessed with four of the most wonderful children you could imagine—except of course, your own. Each of them helped in their own way and not once did they complain when I exhibited the self-centered orneriness that can overcome an author or anyone else working under the gun of a deadline.
Our son Joseph provided invaluable computer technical assistance whenever I was in a fix, and all four of them reviewed the manuscript and enjoyed giving their dad feedback, which I enjoyed even more. Tom, in his second year of law school, grasped the new issues that were injected into the Avery case by Making a Murderer more quickly than I did and was especially helpful on the issues of false confessions and coercive interrogation techniques.
Finally, but formost forever, I am forever grateful to my wife, Jody. She contributed mightily to this book, sharing ideas on our nightly walks and pitching in when the manuscript needed some shaping up. She is by far the most wonderful blessing of my life.
Photographer Teresa Halbach was last seen on October 31, 2005.
Members of a volunteer search party located Teresa Halbach’s RAV4 at the edge of the Avery Salvage Yard on the morning of November 5, 2005. (Photo courtesy of Calumet County Sheriff’s Department)
A smear of Steven Avery’s blood was found on the interior of the RAV4 driver’s side instrument panel. (Photo courtesy of Calumet County Sheriff’s Department)
Avery’s blood was found on the door frame of the RAV4.
(Photo courtesy of Calumet County Sheriff’s Department)
Items found on the front passenger seat of Halbach’s RAV4 included a CD case with Steven Avery’s blood on it. (Photo courtesy of Calumet County Sheriff’s Department)
Avery’s DNA was found on the hood latch of Halbach’s vehicle after Brendan Dassey’s confession on March 1, 2006. (Photo courtesy of Calumet County Sheriff’s Department)
The Avery Salvage Yard, located about ten miles north of Manitowoc, WI, was the site of what is believed to be the largest criminal investigation in Wisconsin history.
(Photo courtesy of Calumet County Sheriff’s Department)
Steven Avery called Auto Trader magazine and asked them to send “the photographer that had been out there before” to take a picture of this Plymouth Voyager owned by his sister, Barb Janda.
(Photo courtesy of Calumet County Sheriff’s Department)
The car crusher at the Avery Salvage Yard. Numerous crushed cars can be seen in the background.
(Photo courtesy of Calumet County Sheriff’s Department)
Avery’s defense lawyers argued that this tiny hole in the rubber stopper on the vial of his blood was indicative of tampering by the police.
(Photo courtesy of Calumet County Sheriff’s Department)
Avery’s lawyers also cited this dried blood between the rubber stopper and the glass on the vial as further evidence of police tampering. Expert witnesses disputed the claims.
(Photo courtesy of Calumet County Sheriff’s Department)
This police photo of a cut on Steven Avery’s hand was taken on November 9, 2005, nine days after Teresa Halbach was
murdered.
(Photo courtesy of Calumet County Sheriff’s Department)
The key to the RAV4 with its blue fob was found next to a cabinet in Avery’s bedroom.
(Photo courtesy of Calumet County Sheriff’s Department)
The back of the book case in Steven Avery’s bedroom where police believe he hid the ignition key to the RAV4. The key fell out when the paneling on the back separated from the wood frame.
(Photo courtesy of Calumet County Sheriff’s Department)
A bullet fragment was found in a crack in Steven Avery’s garage floor on March 1, 2006. The investigator who found it testified it resembled the head of a nail.
(Photo courtesy of Calumet County Sheriff’s Department)
The inside of Avery’s garage is shown in a photo taken after the first bullet fragment was found. Marker #9 marks its location. (Photo courtesy of Calumet County Sheriff’s Department)
A second bullet fragment was found underneath a green air compressor in the back of Avery’s garage.
(Photo courtesy of Calumet County Sheriff’s Department)
Close up of the bullet fragment (Marker 23A) with Teresa Halbach’s DNA on it. (Photo courtesy of Calumet County Sheriff’s Department)
A .22 caliber rifle was found in Steven Avery’s bedroom.
(Photo courtesy of Calumet County Sheriff’s Department)
This photo shows a bullet comparison for Item FL against a test fire from Steven Avery’s .22 caliber rifle. It also shows the bullet fragment containing Halbach’s DNA, found in Avery’s garage.
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