Avery documentary finally getting some pushback

 By now we are all thoroughly familiar with the Steven Avery case, the Mischicot man and worker at a family-owned salvage yard who was convicted in the 2005 murder of Teresa Halbach just two years after his release from prison on a rape charge for which he was wrongfully convicted.

 The case became a national sensation with the airing of “Making a Murderer” on Netflix which made the compelling case that Manitowoc County, where the murder took place, framed Avery and his impressionable 16-year-old nephew, Brendan Dassey, because authorities held a grudge against Avery for his lawsuit against the county. Millions of viewers, whose only knowledge of the case was that series, reacted strongly to what they saw as another miscarriage of justice.

 The reaction was such that all those involved with the case received death threats, harassing phone calls and the county courthouse received a bomb threat. The documentary turned life upside down for two of the officers involved in the case and created the impression that residents of Manitowoc County, and even Wisconsin, are too stupid to see a frame up when it is put before them.

 The two filmmakers were embedded with Avery’s defense attorneys, James Buting and Dean Strang, from the beginning to the end of the case and word has it they are soon to release a second series of videos. I would presume the new episodes will follow the work of Avery’s appeal attorney, Kathleen Zellner and perhaps the parallel pending appeal of Brendan Dassey, who also received a life sentence as Avery’s accomplice.

 There is a saying that a lie can travel halfway around the world before the truth can pull its pants on and this case is a classic example. I compare “Making a Murderer” to the Planned Parenthood videos which purportedly made the case that Planned Parenthood was selling body parts. Selective editing and juxtaposition of clips made that appear to be the case, however the videos were soon exposed as fraudulent.

 “Making a Murderer” is just as fraudulent but much more sophisticated. Only those with an intimate knowledge of the case are in a position to point out its flaws and deception.  

 Fortunately, the truth now has its pants pulled at least halfway up. Ken Kratz, the former Calumet County District Attorney who prosecuted Avery has just released a book, “Avery, the case against Steven Avery and what “Making a Murderer” got wrong.”

 This is not the first work to debunk MaM. Michael Griesbach, an assistant district attorney in Manitowoc County during the Avery/Dassey cases, published “Indefensible. The Missing Truth about Steven Avery, Teresa Halbach and Making a Murderer” several months earlier. Apparently catchy titles are not an attorney thing.

 For those who don’t want to buy a book there is a forensic analysis of the series conducted by Dan O’Donnell, a Milwaukee radio talk show host, available on his website. He summarizes each episode and points out the misconceptions and falsehoods in both a podcast and text format.

  Kratz’s book obviously is the insider’s look at the case and provides side-by-side quotes from the series and from the trial transcripts, which exposes the selective editing. Kratz also deals forthrightly with his fall from grace as a result of a sexting scandal which the series dwelled on to further discredit the case against Avery. It’s also a quick read at 180 pages.

 Griesbach’s book is from the perspective of someone with a front row seat to the drama. Griesbach had written an earlier work about the miscarriage of justice that led to Avery’s wrongful conviction in a 1985 rape case. He approached the Avery book with the eye of a skeptic who knew that police and prosecutors are capable of dishonesty, as evidenced in the wrongful rape conviction. I was struck by two things in Griesbach’s book.

One, Griesbach spends time detailing a second suspect in the case, a German immigrant who lived in the area and whose wife was convinced he was Halbach’s killer. Griesbach reveals only much later in the book that the wife recanted her story and her initial motive was to end an abusive relationship by sending him to jail.  I expect you will be hearing more about this second suspect as Avery’s appeal moves along.

 Two, Griesbach, at the end of the book, constructs a tick tock of the day Halbach arrived at the Avery property to photograph a vehicle that purportedly was for sale, including the number of witnesses who saw Halbach approach the trailer and who saw Avery that night working over a burn barrel near his house. Griesbach melds all the evidence and testimony together to effectively leave no doubt Avery was Halbach’s killer.

 Whether you read one or both of the books or plug into O’Donnell’s analysis here are some takeaways:

  •  MaM mentions an incident in which Avery, in a moment of youthful high jinks, throws a cat into a fire, minimizing it as evidence of Avery’s depravity. In reality, Avery poured gas on the cat, then threw it into the fire from which it escaped. Avery then chased the cat down, poured more fuel on the smoldering cat and threw the wailing creature back into the fire, where it roasted alive. By the way, Avery was 20 years old at the time.

  • The “ah hah” moment in MaM in which viewers saw Avery’s legal team take possession of a foam container with a vial of blood. As you may recall the seal was broken on the container and the vial of Avery’s blood, which was drawn as part of his appeal in the rape case, had a hole in the end. “This is a great day for the defense,” were the words heard in that episode, which supports the theory that someone accessed the vial to plant blood evidence in Halbach’s vehicle. What the series doesn’t reveal is that the seal on the container was broken by attorneys for the Innocence Project in the presence of the Clerk of Courts at the time of the earlier case appeal and was not resealed. All of this is recorded in transmittal documents. And the hole in the vial? All blood vials have a hole in them. That is how the blood is put in.

  •  Also, about that blood. As you learned from watching the series, stored blood has a preservative present, EDTA, and presumably, if the blood in Halbach’s vehicle were tested and found to contain EDTA, it would confirm a frame up theory. So you would think the defense attorney’s would make that test a high priority. No, in fact, Buting and Strang resisted Kratz’s motion for testing and stalled in the hopes the trial date was too close to allow enough time. That is because they knew the samples of Avery’s blood from the vehicle would test negative for EDTA. Fortunately Kratz prevailed and the test did reveal the samples from the car were untainted.

  • MaM shows the trial testimony of Deputy Andrew Colborn, who two days prior to the finding of Halbach’s car in the salvage yard, calls dispatch seeking to confirm Halbach’s license plate number and make and model of her car, as if to suggest he is in possession of her vehicle. Colborn’s clumsy response to Strang’s questioning adds more intrigue. However, a review of the transcripts reveals his testimony was edited to make it appear he was fumbling for an answer and omits the fact that Colborn was simply seeking the information as part of the overall search which he had just explained on direct examination.

  •  In 1984, Avery became obsessed with his female second cousin who lived down the road from his residence. Her husband was a reserve deputy for the sheriff’s department. She would leave early in the morning for work, about 5:30, and Avery would be out by the roadside, naked, waiting for her to pass by and would simulate masturbation. After several weeks of this behavior a neighbor reported the incidents to police.  Avery became angry. One morning his car pulled behind hers, came up alongside and forced her off of the road. He ordered her out of her car at gunpoint, pointing a rifle at her head and telling her to come with him. She feared for her life and told Avery she had an infant in the car. He let her go but as a result was charged with reckless endangerment and sentenced to six years in prison. This sentence was concurrent to his wrongful conviction in the rape case. So while Avery was serving 18 years in prison for a crime he didn’t commit he was also serving six years for a crime he DID commit. In other “acts motions” filed in the Halbach murder, Kratz detailed two sexual assaults Avery allegedly committed with one of those victims being 17 years old. Avery was no choir boy.

  • Avery went to great lengths to disguise the fact he was the one Halbach would be meeting with at the photo shoot on Oct. 31. Avery called in the order to Auto Trader magazine under the name of B. Janda. His sister’s name is Barb Janda and it was her van he wanted photographed. He used Janda’s home number as a call back number. He later used *67 to disguise the origin of two more calls to Halbach’s cell phone. He knew that if Halbach was aware he was the caller she would probably refuse the assignment. Three weeks earlier Halbach had come to his residence for an assignment and Avery greeted her at the door wearing a towel. She made it known to her employers she was creeped out and afraid of Avery. Also, Barb Janda never wanted to sell her van. That was a ruse as well.

  • Avery, after his arrest, “lawyered up” and refused to talk to police. He professed his innocence and declared it was all part of a frame up. He remained silent and declined to take the stand at his trial, but prior to his arrest he was talkative and gave three different accounts of what happened on Oct. 31. In one account he said Halbach never arrived at the residence. He later changed his story to say she stayed outside, he stayed inside and she took her photos and left. The story then changed again and Avery told police she came in the trailer to collect her money and left.

 The documentarians would like us to believe Avery was the victim of an elaborate scheme orchestrated by dozens of people, law enforcement officers, DA’s, technicians and a code of silence has maintained the conspiracy. What is the motive for this frame up? A grudge over Avery’s earlier case? In which none of the current employees of Manitowoc County were directly involved?

 As Sherlock Holmes said, “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.”