Making a Murderer, Part 4

40% done and, I just feel like I need to take a shower. The title of this episode is “indefensible” and, that’s appropriate. One of my friends has said, “Why does TV always find the dumbest, trashiest members of society to glorify?”


By Pat Merriman
Dunn Co. State’s Attorney

This episode opens with Barb Janda (the confessed, juvenile killer’s mother) claiming that the “cops” told her son Brendan what to say. Yet, even Dassey’s own attorney claims that Steven Avery is “evil incarnate” and knocks heads with his client’s mother who becomes more strident in her public criticism of her brother having led her baby boy astray while still, accusing the police of wrongdoing too. Licking his chops and playing to the media, Avery’s attorney then claims “it’s a horror story.” And, the media begins the orgy of one-upmanship with NBC’s Dateline’s producer stating, “Murder is hot…we’re trying to beat out the other networks.” Of course, prompting Avery’s attorney to start the “Steve can’t get a fair trial because of the media coverage” gambit. Which, of course, rings hollow with all of the Avery impromptu press conferences held on his own behalf.
Netflix seems to focus in on the original WI BCI investigators’ interview with the juvenile Dassey. Where was his mother? Where was his attorney? They lied to him? At the end of the day, again, Judge Fox declines to become Lance Ito and, correctly rules that the juvenile’s rights were sufficiently safeguarded and, his confession is not coerced. Which curiously, then, starts Avery himself claiming “I feel sorry for him” and sending the not-too-subtle message (as posited by Dassey’s own attorney), “We all hang together or, surely we hang separately” my nephew. And, Netflix begins another curious ploy by using the phrase “alleged” in reference to the rape and murder of Teresa Halbach. Ummm…guys… spoiler alert…these 2 guys were convicted before you filmed this documentary, so, nothing is alleged. It was proven beyond a reasonable doubt.
In reviewing Dassey’s handwriting samples depicted on the show, I note that the argument of his low IQ seems to be rebutted by some of the self-corrected spelling and, there is no indication of low self esteem. I also note that the lower case spelling of his friend Blaine’s first name sometimes indicates deception or unsureness of the guy as an alibi. Dassey is clearly concerned about his case and the likely outcome if he doesn’t (as suggested by both his lawyer and his mother) “cut a deal” to testify against his uncle. Suffice it to say that the video segments depicting Dassey show classic deflecting and self-soothing when the investigators press him on the details of Halbach’s rape and murder. And, the cardinal rule of interrogations? When a suspect keeps mentioning a subject…it’s what’s on his mind. Here, repeatedly, “the bonfire” even in his remarks to his own private investigator Michael O’Kelly. Or, as others would refer to it, the pit where at least parts of Halbach’s corpse was burned.
I’m also not sure what defense counsel, Len Kachinski, was thinking when he agreed to allow Dassy to be interviewed by BCI Agent Fassbender with only his investigator present. Logically, if your strategy is to “cut a deal”, that might be on your mind but, as Judge Jerome Fox points out later, on August 26, 2006, when he fires Kachinski, certainly not professional conduct because it, “puts his representation of Dassey under a cloud of uncertainty.” Judge Fox wants to make sure that this case is only tried once and, to avoid even the appearance of impropriety, Kachinski is gone. However, for Netflix even to imply that not having his attorney present at this “proffer” somehow tainted Dassey’s confession is not the law. An attorney is present, particularly during a juvenile interrogation after he has already confessed, to do one of two things: (1) have his client remain silent; or (2) tell the truth and cut a deal. So, at the end of the day, there is poetic license with the nefarious nature of this dismissal of Dassey’s attorney, but, that does not equate with a tainted confession. Kachinski should have, at least, participated by telephone.
These appeals to sympathy because Avery’s “fiancé” Jodi Stachowski’s is “harassed” by her probation officer are really goofy too? Really? The woman is on supervised probation because she has a serious drinking problem and/ no PO (or court) allows a probationer to associate with a known felon, let alone, one whose criminal prosecution “increases her stress” and motivates her to drink. Also, please note that on January 18, 2016, TMZ reported that Ms. Stachowski has consistently claimed that “Avery… tied her to a bedpost with rope and tried to videotape it… to have sex while she was restrained but she was so adamant he backed down”. She is convinced that Brendan Dassey’s version of the Halbach rape/ murder is true and, she remains terrified of Avery. Hopefully, Netflix will include all this information in a later episode.
Another problem with Dassey’s alibi gambit is that it’s too specific. In my experience, most people can’t remember what they did last week with any specificity. So, as a veteran prosecutor, this “reconstructed” timeline (alleged to be accurate to the minute) just doesn’t wash. At the end of the day, the charred remains of Halbach were found in Avery’s yard right next door to Dassey. Further, much ado is made about DNA (both Avery’s and Halbach’s) on car keys and in the victim’s car (admittedly with a visible cut on Avery’s finger). Yet, Netflix ignores the fact that Halbach’s DNA was also on the bullet that plowed through her skull recovered from Avery’s garage. After all, if DNA analysis is good enough to exonerate Avery of his 1985, wrongful conviction; why is it incompetent to establish that Avery shot Halbach in the head with his .22 rifle 18 years later?
I’m also confused by the argument that Avery had not gotten around to crushing Halbach’s SUV at the junk yard. Crushing it would have destroyed any claim of “frame up” by the cops and would be a tacit admission of guilt by attempting to destroy evidence. In addition, some Netflix viewers take great poetic license with Judge Patrick Willis’ change of venue ruling to Calumet County. He did not rule that Manitowoc County Sheriff Peterson and his staff were barred from testifying in the Avery trial. He simply moved the trial to the adjoining county so that Calumet County Sheriff’s personnel would be in the courtroom and acting as bailiffs. Again, to avoid even an appearance of impropriety in front of the jury.
And, as the NY Daily News reported on January 4, 2016, there are other pieces of evidence that Netflix “glosses over.” Here’s the summary: Avery met Halbach at his trailer, on 1 of her 6 trips out there (before the murder), wearing only a towel which “creeped her out” enough she complained to a co-worker that she didn’t want to work with him anymore; Avery specifically requested her as his photographer; he “knew she was wary of him and used a different name to get through to her at work; he used his sister’s name when he made the fatal photo appointment; he called her three times on the day she went missing and at least twice blocked her caller ID when he did; he had recently purchased leg irons and handcuffs (the same ones he tried to use on Jodi Stachowski) that matched his nephew/ cohort Brendan Dassey’s description; his SWEAT was found both on Halbach’s keys, in her SUV and on the hood latch, not, just his blood referenced by Netflix; he was accused of molesting his nephews (Dassey and his brothers) before the killing– something Netflix edited from Dassey’s confession to his mother; and, the bullet used to kill Halbach both had her DNA and forensically matched Avery’s rifle (which Dassey told police was) and, officers recovered, hanging above Avery’s bed.
Defense arguments about the search lasting 8 days is, well, just wrong. All you have to do is look at the size of the Avery junkyard, the number of nooks and crannies where guns, ammo, car keys, etc. could be hidden. A search takes as long as it takes and, it’s not unusual to return to a search site numerous times even with “piggy back” warrants on a homicide case. And, so, the cliffhanger this week– the vial of blood in Avery’s 2005 case file and all of the smoke about Lt. James Lenk’s conspiracy conveniently ignores this wealth of other physical evidence to the contrary. Oh…and as I stated 3 weeks ago, a laboratory technician, claiming 21 years after a crime, that a needle would not have been used by them is ludicrous. Remember, it was blood typing that tied Avery to that original 1985 crime and how does one get blood out of a sealed vacutainer vial? My experience is with a needle. Oh well, see you next week.

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