In "Trial 4" we saw how the prejudice against blacks can affect a criminal case in an urban setting. In "Making a Murderer", we have an example of the small-town prejudice against lower-class whites affecting a criminal case.
The Avery family operated an auto salvage yard on forty acres in rural Manitowoc County, Wisconsin. In July of 1985, a woman named Penny Beernsteen was attacked and sexually assaulted while jogging on a Lake Michigan beach. After describing her attacker to authorities, a Manitowox deptuy sherrif said, "It sounds like Steve Avery". From then on, the sheriff's office focused on Steve Avery and he was convicted. After serving 18 years of his sentence, the Wisconsin Innocence Project used DNA testing to exonerate him and he was realeased.
Two years after his release, a photographer named Teresa Halbach was murdered after photographing a van on Steve Avery's property. Halbach's vehicle was found on the Avery junkyard a few days later, and Steven was arrested and charged with her murder. The first season of "Making a Murderer", released in December of 2015, follows the trials and convictions of Avery, and his nephew Brendan Dassey, for the murder.
After the first season was released, the Avery and Dassey cases became quite well-known, and attorney Kathleen Zellner became involved on Avery's behalf, and the Northwestern Law School Innocence Project on Dassey's behalf. Season two follows their efforts to get justice for Avery and Dassey, but as of this writing they are both sitll incarcerated.
What I want to do is discuss a number of the issues in both the Avery and Dassey cases.
Steven's Trial Attorneys
Steven had two trial attorneys who wholeheartedly believed in his innocence, and poured their hearts and souls into defending him. The show often depicts them talking between themselves planning strategy, and it is obvious their goal was to leave no stone unturned in their efforts to obtain justice for their client.
After season one was released, the two became national celebrities, and nationwide speaking tours were arranged for them. Despite this fame, when post-conviction attonrey Kathleen Zellner got involved, she discovered many deficiencies in their representation, and part of her Motion for post-conviction relief was the incompetence of Steven's trial counsel. The thing which most jumps out at me in this regard is the failure of the defense attorneys to present evidence of the police dogs which were brought to the scene after the victim's vehicle was discovered on the Avery property. The dogs, consisting of both scent dogs and cadaver dogs, immediately went onto the neighboring property, which was a quarry. This could have led to a plausible theory that the victim was actually killed on the adjoining property, and then she and her car were later dumped onto the Avery property.
The State's Attorneys
The state brought in as a special prosecutor a DA from another Wisconsin county. This man, Ken Kratz, came across as a slimy, oily, sleazebag, and later events confirmed this impression. He has since lost his DA job and has been suspended from the practice of law. He has been vilified across the country for his obvious low character.
The impetus for his downfall was the plethora of sexting he engaged in with female domestic violence victims who he was supposed to be advocating for. At least fifteen women have come forward complaining of his harassment of them.
In discussing the trial afer it ended, one of Steven's trial attorneys lamented the prosecution's tunnel vision in pursuing Avery instead of keeping an open mind and looking into other theories of the crime. He stated that the prosecutor showed "a tragic lack of humility" in not admitting of the possibility that he might be wrong.
Kathleen Zellner has found a striking number of instances in which evidence which should have been turned over to the defense (called "Brady" evidence, meaning it might be exculpatory) was not turned over. Just another example of the incompetence and sheer hubris of the state's attorneys.
Depicting the Averys
The show spends a lot of time depicting the life of the Avery clan, who live on a series of trailer homes and pre-fab houses on their forty acres. At first this seems unnecessary, and even looks like an attempt to show what a pathetic lifestyle they have. These are cleasrly people who some might refer to as "poor white trash", or "trailer court trash". Indeed, comments made by towns people include "We need to end the gene pool here", and "The Avery family is pure evil".
However, as the series moves on, we begin to have sympathy for these people who are, after all, working hard and trying to scratch out a living under extremely adverse circumstances. The town people may not like them, but they still persevere and carry on with their hardscrabble lives.
And after the first season was released, the tide of public opinion turned in favor of the Averys, and they now get many letters of support on a daily basis, and they have a number of Facebook support groups. So, the approach Netflix took in depicting them in such detail has turned out to be a positive thing.
As of this writing, Steven's parents are still alive, well into their '80s, and are doing reasonably well.
The Denny Issue.
Steven's attorneys were prevented by the judge from presenting evidence that someone else could have committed this crime. This was based on the so-called Denny standard, which says that evidence that a third party committed the crime cannot be based on mere speculation; rather, the defense must show three things: 1) motive, 2) opportunity, and 3) evidence to directly connect the third person to the crime charged which is not remote in time, place or circumstances.
My first reaction was that this standard, which is based on a 1984 Wisconcin case, is unnecessariy harsh; after all, motive is not even an element of any crime. However, after reading the opinion, I see that the opinion was actually a relaxation of the previous standard, in that the word "substantial" was removed as a modifier of "evidence" in the third factor stated above.
Bobby Dassey
One of the state's key witnesses was Bobby Dassey, who is Steven's nephew and the brother of Brandan Dassey. He appeared on the stand as a clean-cut, neatly dressed young man, and surely made a good impression on the jury compared to the rest of the motley-looking Avery clan. Bobby testified that he saw the victim on Steven's property photographing the car she was hired to photograph, and then saw her heading toward Steven's trailer. A few minutes later, when Bobby left to go deer hunting, he said her car was still on the property, but she was not to be seen.
In the course of her work on Steven's behalf, Kathleen Zellner uncovered evidence that Booby had hundreds, perhaps even thousands, of photographs on his hard drive of women being raped, tortured, and killed. This was evidence the state had in its possession but failed to turn over to the defense, in violation of the state's duty under Brady. Kathleen's reinactments of the crime showed that Bobby could easiy have been the killer, by following Teresa's car over to the adjoining property, and then killing her. Had this eidence been available to the defense at trial, the Denny standard likely could have been met.
But the biggest bombshell regarding Bobby Dassey has just recently been unearthed by the zealous Ms. Zellner. She recently, since the second season was released, leaarned that there is a witness who saw Bobby and another man pushing the victim's car onto the Avery property! This witness, a newspaper delivery driver, says he called the county sheriff's office and related what he had seen, but was told "We already know who did it". Kathleen says tips are comiong in to her office daily with ideas about who the second man might have been, and it seems only a matter of time until her efforts prevail and Steven Avery finally receives the justice he has been waiting so long for. Stay tuned.
Kathleen Zellner
Like Rosemary Scapiccio in "Trial 4", we have in Ms. Zellner a tenacious, energetic attorney who doesn't quit unti she gets justice for her innocent clients. Her efforts on behalf of Steven are legendary. She consulted the top experts in the country in many areas of forensic science, in order to test the state's evidence, none of which has stood up to her close scurtiny. She has consulted experts in the fields of blood spattering, DNA testing, and body burning, among many others.
The result of her work is a 1276-page Motion for a New Trial filed on Steven's behalf in 2017. Despite this voluminous evidence presented on Steven's behalf, she was unsuccessful in obtaining a new trial. However, just within the past two months she filed another motion, after the newspaper delivery man came forward with his new evidence of seeing Bobby Dassey and another man pushing Teresa's vehicle onto the Avery property. It seems doubtful the courts can ignore this compelling new evidence.
When she took on the Avery case, Kathleen had obtained 17 exonerations of innocent defendants, and she is determined to make Steven her 18th. She says she takes on this work because of the satisfaction she feels when she walks an innocent client out of prison, after years of false imprisonment.
Brain Fingerprinting
At one point during Kathleen's reprsentation of him, Steven agreed to undergo brain fingerprinting, a procedure which can detect what information is stored inside a person's brain. Steven passed with flying colors, and there apparently is now way to fool this procedure.
The Brendan Dassey case was tried separately from Steven's, and presents a whole different set of issues, so it will be dealt with in another post.
