It is difficult not to rush to judgment when reading about a person charged with a crime or seeing his unflattering mug shot on the local news. But when people rush to judgment, it can lead to a horrific miscarriage of justice.
The Netflix series "Making a Murderer" is terrifying on a whole host of levels, not the least of which is because it tells the story of Steven Avery’s 1985 wrongful conviction for sexual assault, which was based in part on eyewitness misidentification. Avery spent 18 years in prison for a crime he did not commit. The Wisconsin Innocence Project ultimately obtained a court order for DNA testing of hairs recovered from the victim. The DNA test linked Gregory Allen, a man who was already serving a prison term for a different sexual assault in Green Bay, to the crime for which Avery was convicted in 1985.
In other words, the real perpetrator was found, and Avery was exonerated and released in 2003.
Misconduct was alleged in the rape case, including against then-Sheriff Tom Kocourek and then-Manitowoc County District Attorney Denis Vogel. The suit claimed Vogel knew about Gregory Allen, as criminal complaints surrounding Allen were found inside Vogel’s case file. A member of the sheriff’s department may have become aware of information following Avery’s rape conviction that suggested Avery did not commit the crime. The state Department of Justice conducted an investigation into the 1985 wrongful conviction and found “no basis to bring criminal charges or assert ethics violations against anyone involved in the investigation and prosecution of this case.”
After Avery was exonerated by DNA evidence in 2003, Wisconsin legislators responded by passing a bill with reforms designed to prevent wrongful convictions. The bill introduced by then-Rep. Mark Gundrum included requirements and updates for written police policies on eyewitness identification procedures, the recording of police interrogations and longer retention of DNA evidence.
The Netflix documentary has generated massive interest and significant controversy, because, according to a press release about the series, it “examines allegations of police and prosecutorial misconduct, evidence tampering and witness coercion.” The documentary includes a significant amount of footage from depositions in a $36 million, nearly unprecedented lawsuit filed by Avery against Manitowoc County.
In 2005, just two years after Avery’s exoneration and release from prison, Avery was charged with the murder of 25-year-old photographer Teresa Halbach, whose remains were found in a burn barrel on the Avery property, along with her vehicle. Avery’s murder trial became one of the most notorious in Wisconsin history. The defense argued that Avery was framed by law enforcement. Did the fact that an innocent man spent 18 years in prison for a crime he did not commit “make" a murderer, as the documentary title implies?
A jury ultimately convicted Avery of the murder, but that has not ended the controversy. Much of the public seems to have been unaware of many details of the case. Although the prosecution argued that Halbach was murdered in Avery’s trailer in a bedroom, why was no blood found in the trailer? Why was the key to Halbach’s vehicle not found during the first searches of Avery’s trailer, but only later during a subsequent search by a Manitowoc County Sheriff’s Deputy suspected of becoming aware of exculpatory evidence relating to Avery’s 1985 false rape conviction? Was Avery’s blood found in Halbach’s vehicle planted, as the seal to Avery’s blood evidence kit was broken?
The documentary will likely further inflame passions on both sides. Former Calumet County District Attorney Ken Kratz, according to a recent article in Post-Crescent Media, called the series a “defense advocacy piece.” Current Manitowoc County Sheriff Hermann, while admitting he has not seen the series, says that the backlash has been “frustrating” and asks people to keep an “open mind.” One of Avery’s defense attorney’s, Jerome Buting, says that people who watch the documentary will come away with reasonable doubt about the conviction, if not become convinced that Avery was innocent.
I would encourage you to watch this fascinating series. Keep in mind, however, regardless of the passionate feelings and controversy generated about Avery’s second case, it is indisputable that Avery spent 18 years in prison for a crime he did not commit and that many rushed to judgment in Avery’s sexual assault case.
The Innocence Project, based on the few studies on the issue, estimates that anywhere between 2.3 percent and 5 percent of all prisoners in the United States are innocent. In other words, up to 120,000 people are estimated to be sitting behind bars right now for crimes that they did not commit.
Certainly it is critical that our system works to minimize the number of wrongful convictions. When we get it wrong, the consequences are not only horrific for the accused and his or her family, but the real perpetrator is free to victimize more people.
Casey Hoff is a criminal defense attorney based in Sheboygan.