Making A Murderer, Part 2

“It could only be described as the good ole’ boy system run amok.”


By Pat Merriman

Dunn Co. State’s Attorney

Netflix follows up episode 1 with how much egg Wisconsin had on its face in wrongly convicting Steven Avery in 1985 THEN acquitting him in 2003… and, then, re-arresting him for murder 2 weeks later. Slice, by painful slice, the documentary depicts Sheriff Tom Kocourek, Chief Deputy Eugene Kusche and initial investigator Judy Dvorak make fools out of themselves during their depositions in Avery’s $36 million civil suit. But, then, immediately after he’s released, the CURRENT Manitowoc County DA requested that Wisconsin BCI perform a 2-year investigation into the breakdowns which occurred in the original case. Then Attorney General Peggy A. Lautenschlager exonerated the county officers of any criminal wrongdoing (in her 15- page, comprehensive report) but, predictably, was less than thrilled with the investigation itself. That doesn’t stop Netflix, or Avery supporters, from continuing to cry “foul” and opine their conspiracy theories—the obvious point—Manitowoc County framed him for the new murder of Teresa Halbach too. Heck, why waste time arguing with someone whose mind is already made up, right?

It is also painfully obvious that everyone in Wisconsin, not just the local Sheriff, District Attorney, judge and jury, were embarrassed too. A relatively small county where locals assumed that because Avery was a troublemaker, particularly against women, he had to be guilty of the sexual assault of victim Penny Beernsten on July 29, 1985. Just because she pointed at him in court and said, “He’s the man”. And, keep in mind, all while he was out on bond for his confessed felony of running his cousin Sandra Morris off the road and pointing a handgun at her. Just because, as Avery put it, she “bad mouthed” and embarrassed him. There’s some hillbilly logic for ya! In what can only be described as the “Good ‘ol Boy system” run amok in Manitowoc County, in 2003, the state of Wisconsin, including its Governor and Legislature, post haste, convene the Avery Task Force to “review the criminal justice process in Wisconsin”. In short order, the Legislature votes to award him $450,000 (eighteen times the statutory allotment) and passes the Avery Bill which updated DNA science and witness identifications. You know, bringing police work into the 20th century, like it should have been since 1985. Of course, the Legislature looked a bit foolish when Avery was arrested for the murder of Halbach which occurred on the very same day they awarded him the cash. And, it didn’t take them long to rename the “Avery Bill” the “Criminal Justice Reform Bill,” since it passed that same day too. Netflix wants us to ignore those facts and, instead, focus on the nefarious timeline of events from the day Chief Deputy Kuscha is deposed until the news story breaks on Halbach’s disappearance. However, what piqued my interest were the comments of Avery’s lead trial attorney in the civil rights case who observed that the taxpayer’s first $450,000 allowed them “to stay in the lawsuit”. And, never forget, it’s always the money (not the principle) of the thing. From experience, federal lawsuits are expensive and the attorneys usually wind up with the lion’s share of that $36 million in their coffers. So, no accusations here, just personal experience, but, I’m afraid I have to take what these guys say with a grain of salt. And, remember, it’s the taxpayers of Manitowoc County who will be paying this bill since the 6 insurance carriers are denying coverage because of the “outrageous” actions of these 1985 officials.

Another annoying aspect of the documentary is this “report” logged by Sgt. Andrew Colburn (written shortly after Avery’s release) that a decade earlier he had received a different report of another suspect (Gregory Allen) who had “confessed” to a detective in a sister jurisdiction. Much ado is made about the fact that this first report was made and never investigated. And, guys, the fact that Gregory Allen should have been a suspect was actually reported by city Detective Tom Bergner back in 1985. That’s the real constitutional violation here, not, some conveniently remembered, butt-covering, memo some 18 years later. I have intimate familiarity with jailhouse confessions and, you’d be amazed how many times someone “confesses” to other crimes (they did not commit) just because they know they are going away for the rest of their life and, want to mess with “the system”. It happens every day because idle hands are— well, you know. And, our legal system gets caught between a rock and a hard place…the victim ID’d their assailant twice, evidence has been presented and 12 people said this guy is guilty. Where do you draw the line AFTER trial? Just because a new convict SAYS they did it does not make it true.

In the Avery case it’s simple—law enforcement SHOULD have followed up on Mr. Allen as a suspect BEFORE Avery’s trial. The fact that someone else “confessed” 10 years later simply isn’t the real issue. And, for the prosecutor and Sheriff to hide that evidence, back in 1985, is inexcusable. Enough said. But, make no mistake, if every case is re-opened because a criminal (by definition untrustworthy) admits to being the perp after someone else’s conviction, there would be no finality to any serious criminal case…ever. Hence, again, why the courts (not Marsy’ Law advocates, Netflix or the media) have to review these cases. And, remember, the Wisconsin courts did that every step of the way in the Avery case. So, to focus on the events which occurred after Avery was convicted, in my humble opinion, misses the mark. It’s the shoddy actions of law enforcement BEFORE the conviction that should be vilified.

And, an additional comment on Jefferson Grubs, FOX entertainment reporter, who claimed that the most “chilling” moment in this documentary was a quote from Sheriff Kenneth Petersen that “it would have been easier just to kill Steven Avery than to frame him” for the Halbach murder. Huh? If one actually reads the transcript of that interview in 2006 with FOX reporter Lauren Cook, I cannot imagine a more STUPID response to allegations from the Avery camp that the police “planted evidence” in the Halbach murder. Not because, as FOX and Netflix believe that remark is “shocking”. Or, “with this quote, a sheriff is openly contemplating the relative ease of someone committing murder during an interview with a local news affiliate. There is no overstating how inappropriate this is.” Rather, because it’s unprofessional and, just fuels the flames of the conspiracy theorists. Really, Sheriff? I understand the logic of your statement but, maybe you should get a press secretary, eh?

And, here are some additional facts to remember. First, as a result of this documentary, 300,000 signatures have asked for executive clemency. Hysteria trumps the criminal justice system? Second, Wisconsin Governor Scott Walker refuses to release Avery because he’s guilty. Third, at least for now, President Barrack Obama lacks the authority to release him. Unless, of course, the Prez signs another executive order. Fourth, the only person who claims that Avery’s IQ is functionally challenged is his original defense attorney. And, as a forensic interrogator for over a decade, I direct your attention to the following observations which pique my interest—watch Avery’s micro-expressions and demeanor during his television interviews in the Halbach investigation…from day one. And, remember, the disposal of Halbach’s body (on the Avery property) was by burning her corpse. And, even more ominous–every budding serial killer starts with their modus operandi early in life and pets are a common first victim as they hone their craft…Avery incinerated a pet cat and obviously had a problem with sex and violence against women.

Are my observations conclusive evidence of guilt? Nope…but, if I had been called in to witness this guy’s interview, and knew this was in his background, it would certainly send a chill up my spine and merit follow up. Finally, remember that $36 million lawsuit? According to the Associated Press, Avery settled in 2006 for $400,000. So, he got a total of $850,000 in cash from the Wisconsin taxpayers. Finally, please note the thorough professionalism of the Halbach investigation, thus far, in 2003. WI BCI, an adjoining county’s sheriff as lead investigator and, a special prosecutor to “avoid even the appearance of impropriety”. Sounds like a summary of last week’s suggestions. See you next week.

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