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Why Most People Thought Steven Avery Was Guilty Before Netflix Released 'Making a Murderer'

By Dustin Rowles | Streaming | January 12, 2016 |

By Dustin Rowles | Streaming | January 12, 2016 |

Like so many of you, after I completed my quick one-day binge of Netflix’s 10-episode documentary, Making a Murderer, I was furious. Enraged. I was completely appalled with a judicial system in Wisconsin that had allowed a man to be wrongly convicted not once, but twice, essentially because of his socioeconomic status. Steven Avery was poor. He was from a troubled family that had been frequent run-ins with the law. As a result, he’d lost his presumption of innocence.

But after my blood cooled from a boil to a simmer, I was struck by something that Avery’s defense attorney, Dean Strang, had said in the final episode of the documentary. Strang had said something along the lines of, “I hope that Avery is guilty, because I can’t stomach the thought that he is serving life in prison for a crime he didn’t commit.”

What that suggested to me was that — in spite of what I thought I knew from watching the documentary — Dean Strang was not entirely convinced of Avery’s innocence. He was convinced that a miscarriage of justice had occurred, and that Steven Avery was not afforded a fair shake, but he wasn’t convinced of Avery’s innocence. Somehow, that gave me a small sense of relief, but not enough.

As I’ve written before, however, Making a Murderer was not about whether Avery was guilty or not. It was about a judicial system that is unfair to the poor. The documentarians will agree as much.

Like Dean Strang, though, I couldn’t stomach the thought that Avery was serving a life sentence for a crime he didn’t commit. Like the millions of others who have watched the documentary, that thought troubled me. I also wondered — if the case against Avery’s guilt was as open and shut as Making a Murderer seemed to have presented — why hadn’t the Innocence Project taken up the case on appeal in the years since Avery’s conviction? That’s right up their alley, exactly the kind of case they would take. Ultimately, Avery was left in the wind, forced to fend for himself without an attorney (at least, until this documentary brought more attention to the case). What did the Innocence Project know that we didn’t know? Why weren’t there a line of attorneys around the block fighting to take Avery’s case on appeal? Is Avery really as charismatic and sympathetic as he appeared in the documentary?

I began digging into it, trying to find out if there was evidence against Avery that didn’t appear in the documentary. I read some old interviews, I checked some Reddit threads that took me to trial transcripts, and I pored through a lot of information in a short period of time.

On the Monday after Christmas, I collected that evidence into a post, a post that is not unusual for anyone who has read this site and knows of my penchant for yarn walls. At the time, Making a Murderer was not the phenomenon it has since become, and I had no way of knowing that a post that I wrote mostly to set my own mind at ease would become one of the most popular in the site’s history, having been cited by a number of outlets far better known than this one.

A lot of people read that post and thought, “Oh, maybe it’s not as cut and dry as the documentary suggests. Maybe we were being manipulated by the documentarians a little, and maybe Avery is guilty.” A lot of other people, however, refuted the post, wrote scathing comments, and sent me angry emails. There was even an open letter to me on Reddit taking me to task for the post. I think a lot of people skipped straight to evidence collected and vilified me for siding with Ken Kratz and ignored all the parts where I wrote that I thought the police were unethical, Ken Kratz was a puke bucket, and that Avery had clearly been given an unfair trial.

It is the Internet, where people often respond to headlines or skim something quickly and respond to what stuck out. For instance, many, many of the comments that took me to task for suggesting that the doc had left out the part about Avery killing a cat; I don’t dispute that the cat killing was in the doc. I was merely providing the detail left out: That he’d doused it in oil before throwing the cat in a bonfire, which reveals a level of depravity not suggested in the docuseries.

I’ve continued to keep up with the back-and-forth in the media from the participants in the documentary since its release, yet I haven’t been able to escape a nagging feeling that the Making a Murderer had an agenda — a very noble one — and that the trial of Steven Avery (and later Brendan Dassey) was presented to support that agenda. I love agendas!

But despite all I have read, I wanted a different perspective of the trial, one that was not colored by Making a Murderer. I went back and watched on YouTube several local newscasts covering the original trial to get a better sense of how it was covered then, but that wasn’t much help because even the Wisconsin news anchors seemed absolutely convinced of Avery’s guilt.

Eventually, I settled upon the book about Avery written by Michael Griesbach, The Innocent Killer: A True Story of a Wrongful Conviction and its Astonishing Aftermath. Griesbach is convinced of Avery’s guilt, but I’m sure your first thought about reading a book from Griesbach would be the same as mine: He’s a prosecutor from Manitowoc County, so he’s clearly in on the conspiracy.

However, the book largely covers Avery’s first wrongful conviction, and Griesbach was instrumental in helping to free Avery after DNA evidence exonerated him from the 1985 rape. The first two-thirds of his book is basically an indictment of Manitowoc County and how they handled Avery’s prosecution for attempted rape. In fact, against his own colleagues, Griesbach testified on Avery’s behalf in the deposition in the $36 million lawsuit against Manitowoc County. Moreover, a book suggesting that Avery had been wrongfully convicted a second time probably would’ve sold a ton more copies than the one Griesbach eventually wrote (see, for instance, the popularity of Making a Murderer).

Moreover, he was not directly involved in the case against Avery for the murder of Halbach. He knew some of the people involved, but in covering the Halbach case, he was basically an observer with some inside knowledge about the participants. His account of the Halbach trial is dry and even-handed, but in some ways, a mirror of the perspective offered by Making a Murderer. Where the documentary wanted to poke holes in the prosecution, Griesbach sees holes in the defense.

Where Making a Murderer presented both sides (again, leaving out some evidence), the clear emphasis of the documentary was on Avery’s defense. The documentary presented the prosecution’s narrative from only trial footage and press conferences, but they specifically honed in and emphasized the cross-examination of Avery’s lawyers. They further bolstered Avery’s defense with interviews with his very likable attorneys, as well as other family members, including extensive interviews with Avery’s parents, in order to create more sympathy for Avery. Neither the prosecution, the police, nor Halbach’s family were afforded such a perspective.

I should also add that Brendan Dassey had almost nothing to do with Steven Avery’s trial. His confession — which I, like most people, think was illegally, or at least amorally obtained — was not admitted into Avery’s trial, nor was Dassey’s involvement. The prosecution convicted Avery based only on the physical evidence in front of them without the benefit of Dassey’s confession.

Indeed, what’s interesting about Griesbach’s book is that it mostly presents the same evidence as did Making a Murderer, but the emphasis is elsewhere. For instance, Making a Murderer spent an a great deal of time focusing on the vial of Avery’s blood the police had from 1985, which the docuseries clearly suggested was used to frame Avery.

Griesbach, however, suggested that from the perspective of those watching then, the EDTA testing blew a hole in the frame-up defense, which we were not necessarily given to believe in Making a Murderer. The blood vial they claimed was used to plant Avery’s blood evidence in the RAV4 had EDTA, a chemical the labs use to keep the blood from degrading. There was no such chemical in the blood discovered in Halbach’s car. The defense, however, argued that the FBI had no jurisdiction with which to test for the EDTA, that the EDTA tests were unreliable and, further, even if the EDTA tests were reliable, the lack of EDTA didn’t mean it couldn’t have come from the vial. It just meant that there wasn’t any EDTA in the specific samples they tested.

Indeed, Avery’s lawyers called the testing for EDTA “voodoo science” and “palm reading,” which we the viewer believed because we liked the defense lawyers, and we had sympathy for Avery. Why is it “voodoo science”? Because Dean Strang said it was. Why do we believe him? Because we like Dean Strang, who is presented as something of the hero of Making a Murderer because he was trying to save the victim, Steven Avery, when in fact, the victim was Teresa Halbach, who was for a fact burned and shot (and possibly raped and had her throat slashed, if you believe the prosecution’s version of events).

In Griesbach’s version of the story, Strang again is presented as an appealing, intelligent lawyer doing everything in his power to free Avery, but we’re also left more convinced that the EDTA testing was decisive in blowing a hole in Avery’s conspiracy theory about the police. In other words, in Making a Murderer, the EDTA testing was inconclusive. In Griesbach’s version, the EDTA testing was damning.

Moreover, Griesbach leaves us to believe that Avery’s lawyers had wisely used the jury’s assumptions from shows like CSI to persuade them. For instance, Strang argued that shooting Teresa at close range would’ve necessarily resulted in blood spatter on the gun, which is not always the case, However, because of what we know from police procedurals, we think it’s always the case.

Griesbach conceded that he, too, was occasionally given to believe the conspiracy theories, and admitted himself that the ambitious Ken Kratz loved the limelight had acted wrongly in “pushing well beyond the limits of what prosecutors are supposed to say to the media.” But he also said that Sergeant “Coburn was one of the most honest and ethical cops he’d ever worked with … and one of “the last ones on Earth to plant evidence.” That impression is certainly not suggested by the documentary, where we were left to make up our minds based on the edited testimony of a man who looks kinda sleazy, which left us with an impression that Sergeant Coburn had an axe to grind with Avery, though he had no involvement with the earlier 1985 attempted rape conviction.

Something else that struck me about Griesbach’s account was his coverage of Judge Willis’ legal decisions. In the documentary, we learned of Willis’ decisions mostly through title cards.

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Those title cards usually left me frustrated, under the assumption that no thought was given to the decisions beyond, “Steven Avery can go to hell.” However, Griesbach explains how Willis — a reputable and well-respected judge — arrived at those decisions, and the reasoning is legally sound. Why didn’t Avery’s defense point at other possible murderers, for instance? Because legally you’re not allowed to point at someone else unless you can provide evidence of opportunity and motive. Avery could provide opportunity — there were others in the salvage yard at the time Halbach disappeared — but he could provide no motive, even against his brothers (who he now claims may have killed Halbach based in their history of violence against women, nevermind his own).

The holes the prosecution leveled against the defense’s theories, again, weren’t as emphasized in Making a Murdererer as they were in Greisbach’s book, but it’s not his coverage of the trial that is as decisive — to me, anyway. It’s what Greisbach reiterates about Avery’s character. Because that’s the thing about Making a Murderer: Steve Avery is depicted as a sympathetic, wronged figure with a fiercely loyal family; loving, supportive parents; and lawyers who were in his corner. Once sympathy for Avery is stripped away, however, the conspiracy theories about the police become less compelling.

And again, most of this was presented in the documentary, but it was either downplayed, rationalized, or Avery (or his family) gave excuses. Reduced to bullet points, however, Avery doesn’t seem so sympathetic.

Here’s as short list of strikes against Avery which we know about:

— The cat burning incident

— Repeatedly running naked in front of the car of the deputy’s wife. In fact, when Penny Beeerstein was attacked, Avery was out on bail for ramming into the neighbor’s car with his pick up and holding her at gunpoint with the intent to rape her. Griesbach said that six years of his original 18 year prison sentence were for those crimes, for which he was rightfully convicted.

— He threatened to burn down his girlfriend’s house.

— There were several incidents of domestic violence.

— After he was released from jail, he also beat his fiancee, choked her until she lost consciousness, dragged her out to the car and said, “I should get the gun and kill you.” His fiance’s story changed a few days later, however, and Avery was given a citation for disorderly conduct (this incident was largely missed by the media at the time). In other words, he had nearly killed and raped a woman before, but like a lot of victims of domestic violence, his fiance recanted the story.

— During the trial for his girlfriend’s DWI — after she drunkenly drove her car into a ditch — Avery testified, saying that he was the one who had driven the car into a ditch. He was clearly lying. His girlfriend had told the police several times that she was driving and said that no one else was with her.

— It’s not mentioned in the book, but it does bear repeating that Brendan Dassey admitted that Steven Avery had molested him and several other members of his family on multiple occasions.

Knowing all of that, it’s easy to see why Griesbach might think Avery is a “depraved sociopath.” Does being a depraved sociopath make him the murderer of Teresa Halbach? No, of course it doesn’t.

But it does make some of us less inclined to believe — as the defense suggested — that someone else murdered Teresa Halbach but knew enough about Avery’s situation with the police to alert the cops, who covered up the actual murderer’s involvement and instead moved the body parts of a burned woman — along with her cell phone and rivets from her jeans — from another location to Steven Avery’s burn barrel (which just happened to be burning the night that Halbach disappeared), broke into a lab to steal some of Avery’s blood, smeared it inside of Teresa’s car without anyone noticing, which they then drove onto Avery’s salvage yard buried under a bunch of branches, wiped Avery’s sweat on hood latch, and waited until Teresa was reported missing, devilishly twirling their mustaches in the hopes that their evil, cunning plan to frame a woman-beating, rape-attempting Steven Avery would come to fruition!

Did multiple law enforcement officials sworn to uphold the law risk their careers and lives to conspire to frame Avery for a murder someone else committed of a woman who Avery just happened to call on the day she disappeared (three times!)? Has none of those unscrupulous bastards yet collected the bounty of money and exposure they’d received by blowing the conspiracy wide open? Did the police also stage a car crash that injured the step-daughter of juror #11 to insure he would be dismissed?

Maybe. Or maybe Steven Avery killed Teresa Halbach, shot her in the head, burned her body, and then went crying to media — against the advice of his lawyers — claiming his innocence.

“Sometimes I feel like it’s easier [ in prison],” Steven Avery told a reporter not long after he was released from prison. “Some days, just put me back there, get it all over with.”

Maybe Steven Avery got exactly what he wanted.