"MAKING A MURDERER" REVISITED: PART III
WAS JUSTICE DONE? IS STEVEN AVERY GUILTY OR WAS HE FRAMED?
As I noted the other day, I’ve watched all ten episodes of “Making A Murderer” one more time. The first time through, I was shocked, outraged and deeply saddened by what I thought were the prejudicial actions of the public officials involved in the investigations of Steven Avery and Brendan Dassey and the conduct of their trials. I had concluded that whatever the motives of the documentary’s creators might have been, they had succeeded in casting doubt on whether or not the police, the prosecution and the trials had been conducted properly and whether or not bias was a part of how the cases unrolled. Don’t forget, Steven Avery and Brendan Dassey and their families were pretty much ostracized by the rest of the community as “poor trailer trash” and, therefore, not the most welcome of presences in Manitowoc Country.
My first time through, I concluded that I was not convinced of Steven Avery’s guilt or innocence. Of Brendan Dassey’s innocence, that's a very different story. I was convinced that his “spoon fed” and retracted four times confession was simply bogus. Also, Brendan has an IQ of around 70 which also sheds some light on why he was so easily led into making up the stories he did for the special investigator who was interviewing him. He wanted to go home. He also stated that he thought if he admitted that he killed Teresa and/or helped Steven, he would not go to prison.
Let’s recall for a moment, that no matter what you may think about Steven Avery, no matter how many crimes and infractions he committed in his past, (yes, he doused a cat with gasoline and threw it into a fire), no matter what details of Steven’s cell phone calls were left out of the documentary, Steven Avery was convicted of sexual assault, spent 18 years in prison convicted by the same judicial authorities in his murder case, and was eventually freed because – as he maintained all along – he did not commit the crime. Throw in his, at the time of his arrest for the murder of Teresa Halbach, the civil lawsuit pending against the authorities from his first conviction, and you have a prima facie case for at least panic on the part of the entire Manitowoc judicial system. In 2005 the entire budget for the country was round $23 million a great deal less than what Avery’s potential $36 million civil suit could have yielded. And, during depositions for Avery’s civil suit, the county’s insurance companies stated that they would not be liable if malfeasance were discovered in the conviction of Steven Avery. If Avery prevailed in his case, it could have bankrupted the County. And that, folks, is why some of us are suspicious of the motives and actions of the authorities in this case.
My second time through “Making A Murderer?” I am much more inclined this time to question the motives of those involved in investigating and prosecuting Steven Avery and more inclined to doubt that he murdered Teresa Halbach.
And here’s one reason why:
Watching Ken Kratz perform on “Making A Murderer” was very difficult for me both times even before I stumbled on his post-Avery dealings. There was something so sleazy, so smarmy, so vile about this man I wanted to throw things at the television screen. Remember, this scumbag was appointed by the Judge in the Avery case as Special Prosecutor from adjacent Calumet County to ensure that the investigation and prosecution of Avery would be untainted by prejudice, bias or revenge as a result of Avery’s prior case under the purview of the Manitowoc Police and his then-pending $36 million dollar lawsuit against his persecutors.
But here’s something that might throw some light on Special Prosecutor Ken Kratz character and professionalism:
In October 2009, Ken Kratz was prosecuting a domestic violence case against the boyfriend of a 26-year-old domestic violence victim. She filed a police report in Kaukauna, Wisconsin, alleging that Kratz had sent her 30 sexually coercive text messages over the span of three days. She said that she felt that he was trying to coerce her into a sexual relationship at the risk of dismissing the case against her boyfriend. The report was referred to the state's Division of Criminal Investigation. During the DCI investigation, two more women came forward accusing Kratz of harassing and intimidating them. At the time, Kratz was serving as chairman of the Wisconsin Crime Victims' Rights Board.
Kratz resigned in October 2010 after governor Jim Doyle sought his removal. After his accuser filed a federal civil suit against him, Kratz settled out of court in 2013.
In June 2014, Kratz's law license was suspended for four months by the Wisconsin Supreme Court. During the disciplinary hearing, Kratz admitted abusing prescription drugs and being treated for sexual addiction and narcissistic personality disorder, 
So much for the integrity of the Special Prosecutor Ken Kratz.
And here’s another reason:
Despite a judge’s order that the Manitowoc Sheriff’s Department not be directly involved in the Avery case (they were allowed to provide material assistance – supplies, documents, etc. as explained by Special Prosecutor Ken Kratz on television) both pieces of key evidence following the discovery of Halbach’s car, were found by Manitowoc deputies and not Calumet County folks. These are the only two pieces of evidence that (allegedly) connect Avery and Halbach together on his property, after four searches for the key and four months later, on the eighth search of the Avery property, regarding the bullet fragment after Dassey’s fantastic confession. I apologize if I find this suspicious. Why was it that despite the judge’s clear order, Manitowoc police officers were allowed to search the Avery property? Did they forget? And why is it that after two, three searches the key and bullet fragment were not found until during the fourth search for the key and the eighth search for the bullet fragment? Not exactly thorough and competent police work if you ask me.
Also much was made of Steven’s violent past record both in Schwarz’s article and during his trial. But the facts of his record don’t really support such a characterization:
In March 1981, at age 18, Avery was convicted of burglarizing a bar with a friend and sentenced to two years in prison. The sentence was stayed and instead Avery served ten months in the Manitowoc County Jail, was placed on probation for five years, and was ordered to pay restitution. In 1982, at age 20, Avery and another man were convicted of animal cruelty for pouring gasoline and oil on Avery's cat and throwing it into a fire; he was sentenced to prison for nine months. Avery said in an interview about the incident: "I was young and stupid, and hanging out with the wrong people."
In 1985, Avery was charged with assaulting his cousin after he ran her off the road at gunpoint. The cousin, the wife of a part-time Manitowoc County sheriff's deputy, had complained that Avery had exposed himself when she drove past his house. Avery was sentenced to six years for endangering the safety of another person. According to Avery, the gun was not loaded, and he was trying to stop her from spreading false rumors about him.
The 1985 six year sentence was overtaken by Avery’s indictment and conviction for the sexual assault on Penny Beernsten. When you see Avery’s cousin, wife of a Manitowoc Country Sherriff, discussing this event in “Making A Murderer,” even she sounds as if it wasn’t such a big deal, and certainly not one that should have resulted in a felony charge and conviction with a six year sentence. It’s called “don’t mess with the wife of a cop or we will bring the entire weight of the judiciary down on your head.”
While clearly not a clean, pristine record, to have heard the prosecutors – Ken Kratz in particular - and the media before and during his trial, one could have been forgiven for thinking that Steven Avery was 2005 reincarnation of Jeffery Daumer or some other serial killer. And I’m not kidding about this. Watch the documentary if you don’t believe me. I can’t help but believe that this constant characterization by the Special Prosecutor in his multiple television appearances did not prejudice potential jurors. The fact that these characterizations were made in what is clearly a fictional account of Avery’s past brushes with the law only leads me to believe that the authorities were simply hell bent on making sure that Avery would be convicted of the murder of Teresa Halbach.
And then there are the “secret” phone calls between Avery and Halbach on the day she came to photograph his sister’s car. Kratz’s “Big Deal” about this “evidence” (the Big Secret) is that the first call from Avery to Halbach was dialed but the following three were completed by using “*67” callback function, the purpose, according to Special Prosecutor Kratz, so that Steven Avery could hide his identity. Yet, to my way of truly warped, non-liner, nutso, way of thinking, Steven used the *67 feature like the rest of us do, to call back someone whose phone number we haven’t memorized. Or at least the way we used to. Newer cell phones use this feature by recording incoming calls and allow you to call back by simply pressing the number on your “Recents” screen. Me? Phone numbers? 911, I remember. I don’t have to look it up. Beyond that? Hmmmmmm…. I don’t even know my own daughter’s phone number by heart much less the number of the Angie’s List salesperson who keeps calling me.
And Kratz has trotted this “theory” around on countless television talk shows and keeps on repeating it. Well, he did until his own fall from grace for sexual harassment. Yet the simple reason, the logical explanation, for the *69 action could not be more apparent. And by the way, apparently there is no such thing as "sweat DNA" according to DNA experts. There is only DNA. And then there's the fact that while bleach will remove visible traces of blood, it does not remove all traces and those traces can still be detected.
This case, or these cases and the documentary, have caused a flood of news worthy analysis and commentary, including that of Nancy Grace, Fox News premier legal expert. Here's what she says about the guilt of Steve Avery:
And here's a response to Fox's legal expert's "analysis" of the Avery evidence:
I ask you, which analysis makes more sense to you?
As with all good journalism and story telling, Schwarz, at the conclusion of her New Yorker piece, circles back to her opening paragraphs with this:
As with all good journalism and story telling, Schwarz, at the conclusion of her New Yorker piece, circles back to her opening paragraphs with this:
“Yet in the decades since Earle Stanley Gardner launched his column, none of the forces that put those people in prison in the first place [those wrongly convicted] have changed for the better. Nor have we evolved a set of standards around extrajudicial investigations of criminal cases. However broken the rules that govern our real courts, the court of last resort is bound by no rules at all.”
This is a relatively undisguised slam at the “free-wheeling,” “biased” methods of Ricciardi and Demos as compared to the methods of by-gone novelists, true detective story tellers and television series dealing with real crimes and incarcerated criminals, like her example of Perry Mason created for us by Earle Stanley Gardner. Those of us of an age were molded by the calm, by-the-book, follow-the-rules, step-by-step uncovering of the truth and the frequent, dramatic witness stand confessions that were terrifically exciting. All of this exposure – as fictional as it was - became deeply ingrained in our mental and emotional picture of how our justice system works. But it’s false. Confessions on the witness stand? Never happens. Police cooperating with the Defense Attorney as they did with Perry Mason? Not in your dreams. Withholding of evidence? Coerced confessions? Biased and/or corrupt judges? None of these realties of our justice system back in the 1950’s as well as today were ever a part of the proceedings in the television world of Perry Mason.
But they are a reality. As I noted, Schwarz does acknowledge that such problems exist but dismisses them as one-off, rare and atypical. But then one would have to make the same argument on the side of our justice system and its actors when it comes to “arrested for being Black” or “railroaded for being poor” or “Blacks and Latinos suffer harsher punishments than Whites for the same crime” “he was resisting arrest” and a host of other anomalies evident in our judicial and law enforcement system. But doing so would fly in the face of data and statistical analysis proving that minorities of all stripes are treated more unfairly than others in our judicial system. As far as I’m concerned, whatever journalistic missteps that inhabit “Making A Murderer,” whatever problems Schwarz has with the non-journalistic credentials not held by Ricciardi and Demos, whatever flaws in reportage contained in the documentary, what it does do (and what the creators have stated is their purpose) is to cast a fairly dark shadow of doubt over the entire process and proceedings as they unrolled in the investigation, indictment, trial and imprisonment of Steven Avery and Brendan Dassey. And that, for my money, is sufficient validation.
Her closing sentence to the New Yorker article: “But, as defense lawyers remind people every day, it is reasonable to doubt.”
Precisely the point of “Making A Murderer.” Just not held against the creators, but held against our justice system.
Kathryn Schulz, Brown University graduate, is a credentialed journalist having authored pieces for the New York Times Magazine, Rolling Stone, The Nation and the New Yorker magazine as well as an award winning author. Her book, “Being Wrong” was subject to this quote from Bill Clinton:
"If you want to feel better about not being perfect and see the potential upside in your errors, read “Being Wrong” by Kathryn Schulz ... a brilliant book with a sweeping grasp of philosophy and physics and all points in between." —President Bill Clinton.
I guess her “Being Wrong” philosophy doesn’t apply in the case of the creators of “Making A Murderer.”
Frankly, after my second time through I am even more suspicious. There is no question in my mind that Kratz and company were very biased against Avery. And one more time, no one else was investigated for the murder of Teresa Halbach just as no one else was investigated for the attempted rape of Penny Beernsten. History repeating itself? Seems unimaginable doesn’t it. Then again, there are still claims by the right wing that Hillary Clinton murdered Vince Foster. So, yes, strange, unbelievable things do happen. Is Avery innocent or guilty? Still not sure. But I do think that he might have gotten another raw deal and deserves a new trail at the very least.