Making a Murderer, Part 3

Entitled “Plight of the Accused”, the more appropriate title of this episode, at its outset, would be “Plight of the Bemused”.

avery 3

By Pat Merriman

Dunn Co. State’s Attorney

As Steven Avery is charged with the new rape and murder of Teresa Halbach, the Avery Task Force is on TV running for the hills of Wisconsin distancing themselves as far as they can from him and the Wisconsin Innocence Project. Who also can’t wait to get his picture off their website. Governor Jim Doyle said it best, “I assume that the legislators who named this Task Force wish they had another name for it.” Avery’s spin, “they made this Avery Bill so an innocent person don’t sit in jail and their word ain’t no good on it.” That sets the tone for this segment which, frankly, didn’t need to be made since it adds absolutely nothing to the story except more salacious back and forth between Avery, his family and the media. Curiously, scant interviewing of any state investigator or anyone connected with law enforcement. It’s all about the Steve!

In the heart-wrenching ritual that has become the American phenomenon of public grieving, Avery’s preliminary hearing on the new charges comes with the Halbach family huddled together, wearing pins depicting their loved one and stoically listening to the litany of witness in front of Judge Patrick Willis on December 6, 2005. And, despite popular mythology to the contrary (presented both inside and outside this documentary), a preliminary hearing is not a mini-trial or chance to “present evidence for the defense”. In fact, it would be malpractice for a defense attorney to put his client on the stand or, give the state free discovery, or a preview of coming attractions. This is simply a “probable cause hearing” and, anything that Avery (or any of his witnesses) said would be evidence which could be used against him, later, at trial. Instead, the burden of proof is simply an early review of the prosecution’s case to insure, in Judge Willis’ mind, that it was more likely than not that Teresa Halbach had been raped/murdered and, Avery was somehow involved. Not dramatic but, true nonetheless.

Netflix also does a thorough job of innuendo depicting Manitowoc County deputies in the courtroom (even some who working there in 1985) in an obvious attempt (with the background music) to make the proceedings look sinister for their hero. However, again, they ignore one glaring, innocuous detail. Even though a special prosecutor and investigators OUTSIDE that county were conducting this investigation/ prosecution, the people of Manitowoc have the constitutional right to have that case actually heard in their county too, unless a Judge rules otherwise, to protect a defendant’s right to due process. And, the Sheriff of that county has sole responsibility for the judge’s courthouse security. Nothing sinister…just the truth. So close up shots of these deputies performing their security duties at the courthouse may be sensational but, they are really irrelevant. Predictably, the state meets its low, threshold burden of proof and Judge Willis allows the case to move forward to trial keeping Avery in jail with a $500,000 bond.

With Avery’s DNA (both SWEAT and blood) all over the murder victim’s car and on her car keys in his room, the bone/muscle fragments in his front yard and her DNA at the “bonfire” (her corpse burned to pieces with several car tires piled on for good measure), along with the fact that Avery was, conclusively, by his own admission, the last person to see her alive; the die appears to be cast. Yet, Avery continuous to play to the mob immediately assuming his mantle as the true “victim” (again)—his family has to put up their business and get him out on bond within 2 weeks or, he is going to commit suicide. We’ll see! Serial killers usually love themselves too much to end their own lives but, I digress and, again, there’s no real evidence of that. SO, just an observation NOT an accusation. The Avery family still rallies to his defense and complains about threatening letters THEY receive. Of course, curiously missing from all this dialogue is any mention of the true victim Teresa Halsbach. She is rapidly becoming irrelevant in Wisconsin as the conspiracy watchers, the local bar flies, and Netflix watchers make up their mind that Avery was framed. What motive could he possibly have after all?

Avery settles his $36 million lawsuit with the county for $400,000 and all of his civil team cry “foul” claiming he needed the money to defend himself now not become a millionaire at the taxpayer’s expense. Avery sums it up…the cops did it and now, they’re trying to railroad me again. Only Under-Sheriff Robert Hermann makes any real sense at this point in the documentary—it is IMPOSSIBLE for the authorities from BCI and Calumet County to have planted DNA evidence simply because it didn’t exist before Halbach’s death at the Avery junkyard. But, what does logic have to do with a good public lynching of law enforcement, right? By March 1, 2006, Avery’s 16-year-old nephew, Brandon Dassey (during a 4-hour interview… very short for a homicide case) admits to helping Avery rape, shoot, (twice), finally kill, dismember and burn the 25-year-old Halbach outside Avery’s trailer. Particularly fatal to Avery’s claims of innocence because (again) he was, admittedly, the last person to see her alive and his nephew Dassey was his alibi at the “bonfire” the day she disappeared. OOPS!

The national media descends on Manitowoc County like the plague and now the stage is set. After Dassey’s confession, public sentiment (including Avery’s own brother and sister) turns one-eighty and the mob (even at the local bar) is convinced that he DID do it now and, forced his young nephew to help. The new popular notion is that 18 years in prison “changed Steve” into a pervert, rapist and killer. Regardless, the focus of Netflix shifts to the “interrogation” of the juvenile and begins to paint the picture of “overbearing suggestion”. Again, curiously, only defense attorneys, their experts and Dassey’s mother are interviewed. Not really balanced and fair.

I already have ONE major problem with this special prosecutor Ken Kratz and the defense attorneys. That “press conference” they gave, after Dassey’s confession, is so blatantly improper that it makes my head ache. I refer you, dear readers, to the ABA’s Rule 3.6 which reads, in pertinent part, “A lawyer who is participating… in the investigation or litigation of a matter shall not make [any] statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing a [jury]…” I’m sorry, but ethically, as your States Attorney, all I can relate is “the charges filed, the identity of the person(s) involved, information contained in a public record, if there is an ongoing investigation, the scheduling/result of any hearing; a request for assistance in obtaining evidence and information necessary; a public warning if there is danger involved.” Anything else is unethical, particularly, for Prosecutors under NDR.Prof.Conduct 3.8(f).

So, except for statements that are necessary to inform the public of the nature and extent of my actions, and which “serve a legitimate law enforcement purpose”, I can’t even discuss the particular evidence in a case if it would “have a substantial likelihood of heightening public condemnation of the accused.” In fact, that same ND rule also tells me to “exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with [my office] from making an [out-of-court] statement” that I would be prohibited from making too. So, at the end of the day, “legally” ALL that should have been said by Mr. Kratz, the defense team, or any investigator in Wisconsin was Avery’s “identity, residence, occupation and family status; whether he had been apprehended or, information necessary to aid in his apprehension; the fact, time and place of his arrest; the identity of investigating and arresting officers or agencies and the length of the investigation.” That’s it guys. Probably why the WI BCI agents looked so distraught during Mr. Kratz’s melodrama. What he SHOULD have said was “No comment”. But, to paraphrase the comedian Ronnie White, “He had the right to remain silent…just not the ability”. See you next week.


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