Making a Murder, Part 1

So, the Herald’s publisher Stacy Swenson points out that Netflix’s Making a Murderer is all the rage right now.

Pat Merriman

By Pat Merriman

Dunn Co. State’s Attorney

And, she opines that if I personally watch all 10 “episodes” and write a weekly review of each, from a veteran prosecutor’s standpoint, that would be of keen public interest up here. So… here we go. In episode 1, it was patently apparent that Netflix’s December 18th release was designed to generate ratings and take a position on law enforcement. So, before I even watched that episode, I jumped on the Internet to sniff the breeze on a potential agenda. The result? Not kind to the Manitowoc County, Wisconsin, Sheriff’s Dept. who is accused (on behalf of Steve Avery) of railroading him to prison for 18 years. The only thing is, that the Sheriff who “railroaded him” retired in 2001 (15 years ago). And, if there’s one thing I’ve noticed about mob rule in my long, 35- year career, it’s that usually the villagers don’t really care who they lynch when they grab the pitchforks, torches, rope, tar or feathers. And, predictably, the cop haters were bashing the NEW Sheriff, his department and the District Attorney’s Office. None of which, today, has one darned thing to do with Steve Avery or, his $36 million civil lawsuit. Regardless, 350 hits, worldwide, all negative and all calling for blood including death threats just because they watched Netflix.

That’s why I always caution everyone that assuming anything, just because you saw it on TV, doesn’t make it true. So, first observation…FORMER Manitowoc County Sheriff Tom Kocourek violated the first rule of being a chief law enforcement officer—stay out of your subordinate’s cases. If you don’t trust your people, get rid of them but, don’t micromanage them. And, to complement that error, he also violated the very first rule of criminal investigation too—don’t make assumptions. The evidence leads where the evidence leads. Don’t pick a suspect (no matter how loathsome) and, then, back into a conviction. When you get personally involved in an investigation or prosecution, you lose your objectivity. And, that’s persecution NOT prosecution.

Assumption is the mother of all screw ups. Take a look at the California “Marsy’s Law” constitutional amendment fervor sweeping the US. It’s on our ballot this November in North Dakota. It’s entire thrust is designed to allow the victim in a criminal case to call the shots in the prosecution including hiring their own civil lawyer and demanding a conviction. Folks, the criminal law is a scalpel not a broad axe to be used by someone who believes they have been wronged by another person. It’s that whole “innocent until proven guilty” thing. Due process may be irrelevant in California but, assumptions that ALL victims are truly victims, or that a defendant is guilty, is the most dangerous proposition I can imagine. Remember, saying a victim has “rights” CAN be construed as having the right to BE a victim. And, remember too, Steve Avery’s victim Peggy Beernsten was who WRONGLY identified him in court and, according to the “experts”, was the straw that broke his back. When someone who, albeit believable, is too close to a crime to be objective, the inevitable result is going to be a wrongful conviction. And, blaming investigators is the easy part of the equation. Enough said.

Wrongful prosecutions or convictions serve no one. And, this Netflix documentary DOES make that point—repeatedly! SO, off the soapbox because I do believe the current Victims Rights Law in Chapter 34 of the Century Code does a great job of protecting victims, particularly children, AND balancing a criminal defendant’s rights. So, second, the Manitowoc County Sheriff’s Dept., in 1985, compounded their error of assuming guilt by, then, even conducting the interrogation of Steve Avery or, any follow-up with the victim after they ascertained that Avery was their suspect in this case. Every state in this union has some form of state Bureau of Criminal Investigation SPECIFICALLY to avoid this problem. In North Dakota, it is the Attorney General’s BCI and in Wisconsin it was their Dept. of Justice’s BCI. But, they can only act when they are “invited” into an investigation by the local, chief law enforcement officer. And, when that sheriff’s original investigator was best friends with a separate victim who is, herself, the chief witness against your prime suspect in the current investigation, Houston, you are just asking for problems! And, in it’s salacious, one-sided portrayal, Netflix does a thorough job of correctly explaining that the Manitowoc County PD MAY have had a grudge against their prime suspect. That, in and of itself, should have prompted Sheriff Kocourek to call in WI BCI to avoid even an appearance of impropriety.

Third, I’m not going to dignify Mr. Avery’s family or his lawyers or anyone else in his camp with an analysis of their profit-driven theories. Simply put, even if he were Jeffrey Dahmer, he would still have a mother and supporters who loved him and claimed he was innocent. However, one of the documentary interviewees Asst. DA Michael Griesbach (who wrote his own book on this case) says it best—the Sheriff should have turfed the case to WI BCI. And, of course, any competent investigator would have followed up on the other suspect (Gregory Allen) who was uncovered early in the investigation by Manitowoc City Detective Tom Bergner. But, once you’ve made up your mind that X happened…Y is just, plain irrelevant. And, it should be noted that ADA Griesbach (himself a member of the WI Innocence Project) is firmly convinced that Avery DID kill the photographer Teresa Halbach on October 31, 2005—2 short years after Avery’s release. So, let’s hold on to them pitchforks shall we?

And, folks Netflix downplays one critical thing! In 1985 when Avery was convicted, blood typing was the only reliable scientific comparison that could be done to EXCLUDE (not confirm) a rape suspect. And, that only narrows the suspects down by maybe 75%. It wasn’t until 1988 that DNA had evolved to the point where it could even begin to narrow down the 99.9% of human DNA sequences which are the same in every person. And, at that, it wasn’t until 1996 that DNA testing could be economically performed on body fluids with enough accuracy to pass the courts’ Fry (scientific reliability) test to be admissible in court. Ask all those dads who were paying child support for kids they didn’t sire for almost 50 years.

And, DNA mitochondrial testing wasn’t perfected until 2001, such that, pubic hair (not just blood) could be used like in the Avery case. So, at the end of the day, one can rant (quite correctly) against Manitowoc County for their “agenda” and slipshod investigation; but, there is also some cause to celebrate too I think. Modern technology is also exonerating the innocent who are accused/ convicted. But, lest we forget, DNA is not going to be the end of this road either. Because, in 2009, after well publicized frauds, police have been warned that DNA can be faked, “You can just engineer a crime scene…any biology undergraduate could.” So, in closing, Griesbach also sums up my impression of this documentary so far, Netflix, “sort of adopt what they believe to be the truth. And they present it as the truth. And the disturbing part is they don’t present it even close to thoroughly. And I understand that TV, and dramatic portrayals, you’re going to approach it with a specific angle. But I think they went overboard.” From the opening, heavy cello piece (reminiscent of the Game of Thrones) to their glossy non-portrayal of the $36 million that Avery is seeking, this “documentary”, so far, is really nothing more than a hit piece (maybe rightly so) on the sheriff, investigators, district attorney, judge and the Wisconsin criminal process in general. Let’s see what happens next week.


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