Update & Show Notes
by Michael Griesbach
One year after Making a Murderer’s debut, with renewed vigor thanks in large part to the world-wide attention lavished upon their clients by the series, Steven Avery and Brendan Dassey’s lawyers continue to fight for their release. As the cases slowly grind their way on separate tracks through courts of law, their guilt or innocence continues to be vigorously debated in the court of public opinion, with no small amount of incivility in some quarters greeting every morsel of news.
Hopes for Dassey’s release were dashed just last week when a federal appeals court in Chicago blocked a lower court’s order granting his release on bond pending appeal. So confident was Dassey’s mother in his imminent homecoming that she scurried to raise funds for clothes that would fit the considerably larger frame of her seventeen year old son transformed into a twenty-six year old man while spending a decade in prison.
Although it was the back story of Avery’s previous wrongful conviction and his complicated personality that drew millions of Netflix viewers to Making a Murderer, Dassey’s confession and the interrogation methods used to elicit it have more deeply touched a public nerve, at least for now. His case is also moving faster in court. A federal magistrate in Milwaukee ruled three months ago that his confession was involuntary, that the police went over the line in their interrogation given his age and intellectual limitations, and that his statements had to be suppressed. There is some additional evidence that he participated in criminal activity in connection with Teresa Halbach’s murder, but without his confession, a new conviction for rape and murder is an unlikely bet. The state has appealed the magistrate’s decision, and the case is now before a three judge panel at the Seventh Circuit Court of Appeals – the same Court that recently blocked his release on bond.
Unlike Avery’s case, the legal battle in Dassey’s appeal does not directly concern his guilt or innocence, but rather whether his constitutional right to be free from being forced to incriminate himself was violated. Were his statements voluntary, or were they the product of unlawfully coercive police interrogation? If the latter, the prosecution should not have been permitted to use them at trial because coerced statements violate a citizen’s constitutional rights and are frequently not reliable.
The issue is more complex than it sounds, and despite both sides’ stated confidence that they will prevail, how the Seventh Circuit resolves it is anyone’s guess. The prosecution sees it as an obvious call, in part because the police made no explicit promise of leniency to get Dassey to confess. No one who has seen the videotaped confession doubts the police maneuvered, even exploited him to confess, but right or wrong, the law permits police to manipulate and use deceit to ferret out crime.
There is a line, though, across which police may not go, and the youth, inexperience with the system, and intellectual or emotional limitations of a suspect are key factors in determining whether the line was crossed, as is the extent of manipulation by the police.
In what some legal observers consider a less than in depth analysis, both the trial court and the Wisconsin Court of Appeals ruled that the detectives in this case did not cross the line, that Dassey is less intellectually limited than is apparent, and significantly, that police made no specific promise of leniency to get him to confess. But in a 91 page decision evaluating the three separate interrogations as a whole, a federal magistrate judge in Milwaukee found otherwise, concluding that taken in its entirety and viewed from Dassey’s perspective, the words and actions of the police amounted to a false promise of leniency, making the confession involuntary and, incidentally, potentially false.
Should the law draw a clearer and bolder line between police questioning of vulnerable youth like Brendan Dassey on one hand, and savvy career criminals who know the police interrogation drill on the other? Tens of millions of Netflix viewers around the world who watched the documentary seem to think so. But is it the job of the courts to reflect public opinion, or for that matter, their own? If the Seventh Circuit affirms the Magistrate’s decision, cries of judicial activism will be leveled in certain quarters. Praise for overdue development of confession law will be sung in others. As previously stated, how the Court will rule is anyone’s guess.
A court decision freeing Dassey would be devastating to Teresa Halbach’s family. They are firmly convinced of his guilt and understandably less aware or concerned with whether his confession was constitutionally sound. How can they be expected to appreciate the rule of law that excludes a constitutionally infirm confession when they believe the young man who uttered it helped rape and murder the daughter and sister they so dearly loved?
The Halbach’s confidence in the jury’s verdict is not misplaced, for there is additional evidence against Dassey that points to his involvement in Teresa’s death, albeit probably insufficient alone to prove guilt beyond a reasonable doubt. It’s uncontroverted that he was standing side by side with Avery at a raging fire in a pit in Avery’s back yard on the night of the murder—the pit where he admitted he saw part of a human body and where Teresa’s charred remains were later found by police. He spent time with Avery that night wiping up an apparent blood stained area in Avery’s garage in the same location where he told police Avery shot her, explaining later to his mother that it’s how his pants became stained with bleach. In a recorded phone call from the jail, he also admitted to her that he did some of what he told the police.
Steven Avery’s case is proceeding along a very different and slower track, at least so far. Despite his high powered attorney’s pervasive and confident tweets that she will not only prove her client innocent, but establish the identity of the true perpetrator, the legal skirmishes in Mr. Avery’s case have barely gotten under way. Last August Chicago attorney Kathleen Zellner led her well heeled entourage past dozens of state and national television and print reporters to file in person the defendant’s Motion for Additional Scientific Testing, a motion she could have filed by simply placing it in the mail. Having exhausted for now his appeals in state court, the Avery case is back where it began—at the Manitowoc County Courthouse.
“We are going to get to the bottom of who killed Teresa Halbach,” Zellner told a throng of reporters on the courthouse steps after filing her motion inside. “Mr. Avery is requesting the comprehensive, thorough and most advanced forensic testing currently known for one simple reason,” she continued: “he is completely and totally innocent of the murder of Teresa Halbach.”
Zellner sought testing on dozens of as yet untested items in her motion, including the battery cable on Teresa Halbach’s car, its hood release inside, the metal bar that props up the hood, and a pair of purple women’s underwear found in a trailer at the salvage yard. She also requested new technologically advanced testing on previously tested evidence, including the license plates from the Rav4 and its ignition key found by officers Colborn and Lenk in Avery’s bedroom. She has retained scientists from Sweden, Austria, California, and Illinois to conduct the tests. If evidence was planted, Zellner warned authorities, “science is going to catch up with you.”
In support of her motion for testing, she recycles the same accusations of evidence planting made by Avery’s attorneys ten years ago at his trial. Speculation is asserted as absolute fact, and allegations of egregious police corruption are made without a shred of actual evidence backing them up. One wonders if perhaps this is why Ms. Zellner recently settled for a significantly toned down battery of tests—that there is nothing to the evidence planting claim and no indication that anyone other than Avery and Dassey are responsible for Ms. Halbach’s death. As of this writing, it cannot be said with certainty that she will not revisit the issue, but she has signed a stipulation with prosecutors to test significantly fewer pieces of evidence than she sought in her motion.
Even if his own experts come back with ostensibly positive results for the defense, Avery faces additional hurdles in his quest for a new trial. If prosecutors believe the testing methodology employed by the defense experts is unreliable based upon other experts’ opinions in the field, they can urge the Court not to consider the results on the preliminary issue of whether Avery should be granted a new trial. In the unlikely event a new trial is ordered, they can challenge the test results’ admissibility on the same grounds.
The road ahead is fraught with danger. Inconclusive results in one or more tests, or mixed results among the various tests – with some suggesting evidence was planted and others confirming Avery’s guilt – would further complicate matters legally. Avery’s attorneys must convince the Court there is a reasonable probability that the result of a new trial would be different if the scientific testing results were admitted. Put another way, the testing results must “undermine the confidence in the verdict” to warrant a new trial. Barring smoking gun evidence that he was framed, his quest for a new trial is likely to fail.
The position of the prosecution is unlikely to fare nearly as well in the court of public opinion as it is in the court of law. A denial of Avery’s motion for a new trial would increase public mistrust and stoke the anger and suspicion of his most ardent supporters. Making a Murderer’s one-sided narrative has paved the way for Kathleen Zellner to even more firmly establish her client as the victim of unprecedented abuse of power in the minds of millions of viewers around the world. And with a second season of Making a Murderer in the works, its creators embedded with Zellner and Dassey’s attorneys this time, Wisconsin police and prosecutors, who have to date/so far proven either tone death or unconcerned about their reputations, will have them tarnished even more.
Like Buting and Strang before her, Kathleen Zellner has presented not one piece of actual evidence that her client was framed. She claims to be in possession of such evidence, both forensic and from new witnesses coming forward, but she continues to offer up nothing to the court or to the public other than accusations and innuendo, further riling up her audience whose minds have been paved by Making a Murder to accept whatever she claims. It’s already ugly out there, and it will likely get uglier before this is over.
As for me, I continue working with others to do what we can to set the record straight, believing perhaps naively that in a culture where emotion trumps reason and where the line between entertainment and reality is fading fast, there are still segments of society where reason and critical judgment prevails. Pushing back against what New Yorker magazine columnist Kathryn Schulz described as Making a Murderer’s “high-brow vigilante justice” is not an easy task. But when a conference attendee shakes his head in agreement or a reader posts a review that Indefensible changed her mind about Avery’s guilt, or at least led her to consider another view, it all seems worthwhile.
Of one thing I am certain. Steven Avery’s fate will not be decided in the court of public opinion; it will be decided in a court of law where the decision belongs. He will get his chance to argue why he deserves a new trial. But the burden has shifted, and he will need more than speculation that police planted evidence this time. I’ve said it before and I’ll say it again: the authorities got it right this time, and barring the revelation of new evidence pointing squarely to his innocence, the nation’s most famous exoneree is “rightfully” where he belongs—in a state penitentiary for the rest of his life without the possibility of parole.