By: Will Thompson
Associate Editor, American Journal of Trial Advocacy
Like many of you, Netflix’s hit docu-series, Making a Murderer occupied a large amount of my TV watching time over the holidays. I was captivated by the seemingly too-shocking-to-be-true story of Steven Avery. I found the main crux of the series to be difficult to grasp: after filing a lawsuit against the county officials who wrongfully put him behind bars for eighteen years, Avery is framed and (SPOILER ALERT: convicted) for a murder he did not commit.
After watching the series, I’ve read all of the follow up stories, done some of my own research, and watched the network TV specials on the Avery case. Upon further review, I’ve reached five conclusions on Making A Murderer.
1. The Steven Avery Saga is Far From Over
FAR from over. Steven Avery filed a motion for a new trial shortly after his conviction. In August 2011, an intermediate state appellate court denied the motion. The Wisconsin Supreme Court declined to hear the case.
Just over a month ago, Avery filed for a second appeal, arguing that his civil rights were violated. Since the release of the Making A Murderer series, Avery is now represented by new counsel: Kathleen Zellner, a successful Chicago-area lawyer who specializes in post-conviction issues. Since she agreed to take the Avery case, Zellner has pulled no punches, making her voice heard in print, on social media, and on television news.
“I think that the Avery family was discriminated against just because they were viewed, particularly Steven, as being dispensable,” Zellner said in a statement. “Certainly, the whole case revolves around the fact that he brought a civil rights case, and I think that’s one of the most important developments in all of these wrongful conviction cases is bringing civil rights cases. And so when I saw that there was a concerted effort to stop him from bringing that case showing the police misconduct, that really piqued my interest in it.”
It will be interesting to see how the dynamics of the Avery case will change with Zellner at the helm. In addition to Zellner, Avery is also represented by the Tricia Bushnell of the Midwest Innocence Project.
2. The Producers Either Didn’t Do Their Homework on Blood Collection or Intentionally Left Out Details That Guts the Avery Defense
To me, one cannot reach a fair conclusion regarding the outcome of the Avery case without watching the Dateline NBC special on the Avery case that aired about a month ago.
During the hour-long program, Andrea Canning interviewed Jerry Buting, one of Avery’s attorneys. One of the pillars of Avery’s defense was that someone from the Manitowoc County Sheriff’s Office removed Avery’s blood from a vial on file at the Manitowoc County Clerk of Court’s office, and planted it inside Halbach’s Toyota Rav4. Buting made several statements regarding the presence of blood between the vial glass and the stopper – a fact that Buting said supported the defense’s theory. In the series, Buting also stated that the presence of a small hole on the top of the stopper appeared as though it was made by a needle.
The blood collection expert interviewed by Canning on the Dateline NBC special completely refuted both of Buting’s claims. Holes on the top of a blood vial are completely normal. Additionally, the presence of blood between the glass and the stopper is a completely normal occurrence. Both claims by the blood collection expert shed light on the lack of due care the producers of the series exercised when researching the Avery case.
3. Brendan Dassey Deserves a New Trial
Just curious – was there anyone who watched the series that doesn’t agree with this? If one thing was clear from the entire Making A Murderer series, it may be the fact that the criminal justice system failed Brendan Dassey, a teenager with below-average intelligence who was more concerned about missing Wrestlemania than being interviewed by law enforcement in connection with an ongoing murder investigation.
From the moment he sat in the interview room with police officers and had his confession served to him on a silver platter, Dassey’s story is a tragedy. Dassey’s first attorney, Len Kachinsky, aided prosecutors on more than one occasion – even allowing Dassey to be interviewed by with police without Kachinsky in the room. And, lest we forget, the case theory that District Attorney Ken Kratz brought into the courtroom in the Dassey trial was not even mentioned in the Avery trial for the same crime.
4. Ken Kratz’s Pre-Trial Strategy is Indefensible
Holding a press conference months before trial for the sole purpose of describing, in graphic detail, your theory of the alleged crime is obscene. Not only that, but the theory of the crime advanced by Kratz in the pre-trial press conference turned out to be false.
But the graphic press conference describing Brendan Dassey’s confession was not an isolated incident. On at least SEVEN occasions prior to trial, Kratz made statements to the press that implicated Avery for the murder of Teresa Halbach. Consider the prejudicial impact those press conferences had on Steven Avery’s right to a fair trial. Not only does Avery have a right to a fair trial, but in the words of Ben Kempinen, Professor of Law and Director of the Prosecution Project:
“A defendant has a right to a fair trial, which means a trial in which guilt or innocence is determined only by evidence received in court and evidence only evaluated by a jury.”
5. I’m Convinced Steven Avery Killed Teresa Halbach, But I’m Not Convinced Beyond A Reasonable Doubt
This was tough, but I have to say it: I think Steven Avery killed Teresa Halbach. Am I convinced beyond a reasonable doubt? No.
Immediately after finishing the series, I was at the opposite end of the guilt/innocence spectrum. I thought Steven Avery was, for the second time in his life, the victim of a gross miscarriage of justice. My opinion was largely based on the framing defense asserted by Avery’s lawyers at trial, especially the fact that the vial of Avery’s blood appeared to have been tampered with.
The Dateline NBC special (see number 2.) proved to me otherwise. Without the planted blood, Avery and his attorneys barely have a leg to stand on as far as their framing defense is concerned. Making A Murderer advocated for Avery’s innocence. By doing so, a lot of important details were left out of the documentary. Take the series’ conclusions with a grain of salt. Weigh the evidence, and make your own conclusions, but read up on all the evidence that wasn’t addressed in the ten episodes.