On Making a Murderer

BY foxsports • January 10, 2016

I believe Steven Avery probably murdered Teresa Halbach. I say probably because I didn't sit on a jury for multiple weeks hearing all the evidence and because all jury trials come down to probability. It's nearly impossible to know exactly what happened in any case and it's nearly impossible to forecast what any jury of 12 people will decide. That's why I've been opposed to the death penalty since I went to law school. The death penalty requires a level of certainty that our court systems simply can't provide. I'm confident we've executed innocent people in this country. I'm confident that every country with the death penalty has. Humans are imperfect beings, why would our criminal justice system be any different?

Our criminal justice system was wrong that Steven Avery raped a woman in 1985, but I believe it was right that he murdered Teresa Halbach in 2005.

I'm not sure whether I would have found Steven Avery guilty beyond a reasonable doubt if I'd been seated on this jury. My inclination is that I probably would have, but it's hard to speculate on how you'd render a verdict based on what you saw in a ten episode documentary that was slanted towards the defense. A ten episode documentary is really just a bit more than one trial day, so none of us have anywhere near the scope and details that the jurors and lawyers who worked on this case had. It's important to remember that a jury of 12 people convicted Avery and sent him to prison, not anyone in power in Manitowoc County.   

So if you're one of those people who embraced the documentary's conspiracy theory and believes that Manitowoc County police officers framed Avery -- and judging by Twitter there are tens of thousands of you -- you're not going to find a ton of support in my review.

For the next several thousand words I'm going to unpack the documentary and my notes that I took as I viewed it over the past several days.

So here we go:

1. This documentary advocates on behalf of Steven Avery's innocence.

It's not a neutral story. It takes a side. That's fine, but I'm sometimes stunned by the number of people who can't discern an unbiased neutrality from a studied advocacy. This is not an even and impartial examination of a criminal trial, the film makers believe that Steven is innocent and do their best to show him in a positive light.   

The documentary advocates based on Avery in many ways, but some of the most readily apparent are in the sympathetic treatment of Avery and his family, the musical accompaniment to favorable moments, the deification of his trial attorneys, the selective editing of trial testimony to make Avery's position appear stronger, the cliffhanger aspects of the episode endings -- all of which favor Avery -- and the manipulation and selection of facts and details designed to make a conspiracy seem readily apparent. None of the purported conspirators is afforded fair treatment, the design of the film is to make the Manitowoc police and prosecutors the clear villains.  

A trial is a battle of advocates and in this case the documentary film makers are Avery's strongest advocates. There are presently hundreds of thousands of people, believe it or not, asking President Obama to pardon Steven Avery for an unjust conviction.

I will not be one of them because I believe Avery murdered Teresa Halbach. 

2. Very important details were left out of the documentary. 

Like many of you I spent a great deal of time grappling with what Avery's motive to commit this crime would be. Why did he murder Halbach, what was his motive?

Ken Kratz, the "villainous" prosecutor who will will discuss in greater detail below, provided these omitted documentary facts to People Magazine. I've bolded it below. 

"Kratz cites Halbach's October 10, 2005 visit to the property owned by Avery's family for a photo shoot for AutoTrader magazine: According to Kratz, Avery allegedly opened his door "just wearing a towel."

"She was creeped out [by him]," Kratz says by phone, later adding by email: "She [went to her employer and] said she would not go back because she was scared of him."

At 8:12 a.m. on Oct. 31, the day Halbach was killed, Kratz says Avery called AutoTrader magazine and asked them to send "that same girl who was here last time." He says that Avery knew Halbach was leery of him, so he allegedly gave his sister's name and number to "trick" Halbach into coming.

"Phone records show three calls from Avery to Teresa's cell phone on Oct. 31," says Kratz. "One at 2:24 [p.m.], and one at 2:35 – both calls Avery uses the *67 feature so Teresa doesn't know it him...both placed before she arrives.  

"Then one last call at 4:35 p.m., without the *67 feature. Avery first believes he can simply say she never showed up...so tries to establish the alibi call after she's already been there, hence the 4:35 call. She will never answer of course, so he doesn't need the *67 feature for that last call."

For me the lack of a motive or even discussion of a motive was a glaring hole in this story. Why did Avery kill Halbach, a virtual stranger? Money? Lust? Anger? All three of these are the primary motives for virtually every crime committed, particularly murder. 

The documentary gave us no motive, strengthening the idea that Avery was framed. But with these added details that weren't included in the documentary it would seem that Avery's motivation was lust, he was attracted to Teresa, made advances, may have been rejected, raped and killed her. I believe that story. 

My issue in a larger context is that leaving out these details was a fundamental flaw of the story. Wouldn't you have liked to know that Avery had Teresa's cell phone number and that Teresa had visited him before and been creeped out by how he treated her? I would. 

You can read more details that were excluded from the film here.

You can also recall that Avery showed staggering flashes of violence. Look at his correspondence with his ex-wife while he was in jail. He threatened to kill her in writing. That's not normal behavior. What about the tormenting of the cat? Torturing animals is a clear sign of lack of empathy. Avery's physical appearance, he's slight and speaks in an unthreatening way, can hide multitudes. He never yells at anyone on a prison phone call in the documentary. Is that selective or did he never yell? Again, the documentary film makers constructed 10 hours of a story out of thousands and thousands of hours of footage. How would you look if you were defined by less than 1% of your interactions in a documentary? Wouldn't you be nervous to find out?

My point on this is simple -- you have to include Avery's prior interactions with Halbach in this film. It changes everything. 

3. Let's consider the evidence. 

A woman is murdered. Her bones are found in a fire pit at the residence of the last person who may have seen her alive. Her car is also found hidden on the property with blood from the alleged murderer inside. A key to the car is found in the man's house and a bullet that has the DNA of the victim on it is found in the garage. An unreliable witness says he participated in a rape and murder of the victim, and also saw her body burned there. Another witness says the alleged murderer joked about disposing of a body. 

Oh, and the murdered woman was creeped out the last time she visited the alleged murderer, who answered the door the first time he saw her in a towel and specifically requested she return to visit, and the victim didn't want to go back to see him that day. The alleged murderer called her twice using *67 to avoid her knowing who was calling and then called her again under his own number to try and establish that she never showed up at his house. Which was his initial, disproven, story. The alleged murderer has no alibi and eventually admits to seeing the woman who is murdered on that day. But he claims he has no idea what happened to her. 

Now if I'm the defense attorney of an alleged or convicted murderer -- a role I've actually had in my life as a lawyer -- you can pick away at the evidence. The key may well have been planted -- in fact, I think it probably was. The bullet fragment being found months after the fact is suspicious. There not being any blood in the house or the garage doesn't make sense if Halbach was murdered there. The blood inside the car is suspicious. (But Kratz points out that there was also DNA found under the hood of the car that wasn't blood, a fact left out of the documentary). 

But none of those things change the fact that a murder happened. Indeed, they are really just confusing details. Why did Avery ever need to get inside the car? Why does the car matter at all? In fact, why in the world would Avery have ever gotten inside the car? And why would he keep it on his lot? None of the details surrounding the car make sense, but do they really matter? 

We know a woman was murdered and her bones turned up in a fire pit directly outside the home of the accused. And we know her car was there too. So we know that the woman arrived at the house on that afternoon and no one can prove she ever left. If Steven Avery didn't kill her, who did? And if she ever left his property, wouldn't someone have seen her or wouldn't she have contacted someone? If she never left his property then someone had to kidnap her and take her away, before returning her burned remains to the Avery home. Or someone else had to kill her on the Avery property without anyone in the Avery family realizing it.  

Given these undisputed facts, the only real defense you have is that someone else killed her and the cops framed Avery.

Then you're faced witha problem, why would someone do that?

The Avery defense team's answer: Because they were afraid of the civil judgments that Avery might win in a trial that was still years away from going to court. Remember, the depositions were just taking place. The trial itself, if it ever went to trial, which is highly unlikely in a civil case, was years away. Even if their goal was to frame Steven, why do it now? They had years to wait. 

More importantly, do you really think a couple of cops killed Teresa Halbach and planted her body and her car? Even Avery's attorney's didn't argue that. They argued that Teresa was found dead and the cops immediately decided to frame Steven for it. That's just not logical. So cops found Teresa dead and rather than pursue the case they immediately decided to frame Steven because of his lawsuit?

And even if they did, that's a tough conspiracy to pull off because the DAs have to not catch them and then the DAs have to prove to 12 jurors that Avery murdered Teresa beyond a reasonable doubt. In a much derided clip in the documentary they play Sheriff Petersen of Manitowoc County saying it would have been easier to kill Steven than frame him. While it's not what you'd want your sheriff to say in public that's 100% true. If silencing Steven was the goal, framing him for a murder he didn't commit is infinitely more difficult than just killing him.

Here's the other thing -- all of this requires that the police not pursue the real murderer. They have to have willfully ignored the fact that a 25 year old innocent victim was killed in order to frame Steven for it. They have to have found her dead body, burned her dead body, snuck her car onto the property, all to frame Steven Avery.   

It just doesn't add up. 

All of the evidence supports the fact that Steven Avery killed Teresa Halbach.

And I don't see much reasonable doubt about the facts that matter.  

4. Now the prosecutors, like most of the people in this story, were idiots. 

They got hung up on details that didn't matter. They held a graphic press conference to explain how Teresa Halbach was murdered and their entire theory of the case turned out to be wrong. Indeed, in a total farce for the prosecution, they got a conviction of Steven Avery arguing that he murdered alone and then got another conviction of Brendan Dassey, whom we'll discuss below, arguing that he murdered Halbach in conjunction with Steven. I don't know how prosecutor Ken Kratz could sleep at night having advanced two different theories of the case to send two different men, one a juvenile, to life in prison for murder.

Both of these theories can't be true.

But the prosecutor and police's sins, the vast majority anyway, were sins of incompetence instead of signs of conspiracy.

Do we really need to know where Steven killed Teresa? Why not just say you aren't sure exactly where he killed her. It's a forty acre property and you didn't find blood inside the house or the garage. Couldn't he have killed her outside? Does whether he raped and tied her up beforehand matter? Wouldn't you have found her DNA inside if that had happened? Do we need his blood in her vehicle or her car keys in his trailer? A bullet in the garage with Teresa's DNA? No, all of these are distracting details. Focus on what is incontrovertibly true: we've got a dead body in the fire pit outside the last guy who ever saw her alive's window. And that guy isn't testifying in his own defense so how can he explain it away.

Put simply, he can't.  

Again, I don't think Steven Avery is smart enough to cover up all his wrongdoing, I think the police and prosecutors were just never able to figure out exactly where he killed her. Admit that. The jury clearly split the baby here, because they found Avery guilty of murder but not of mutilating her body. How, exactly, can you kill someone and burn their body and not mutilate it in the process? This wasn't a logical conclusion, but it's one the prosecutor's left open due to the flaws in the their presentation.

But it wasn't just the prosecutors and the police who appeared like incompetent idiots, it was the entire cast of characters in the county.  

Everyone in Manitowoc County speaks like they're playing without a full deck of cards. Did you notice how much smarter the Northwestern lawyers sounded in episode ten? I'm convinced they seemed infinitely smarter just because they talked fast. Manitowoc County is not a place renowned for producing brain surgeons. The pace of this documentary is incredibly slow not just because you could have cut four hours and not lost anything, but also because most of the principal speakers in this story are so damn slow.

It's not that I don't think conspiracies happen, it's just that I'm convinced these people are all too dumb to adequately and efficiently conspire. 

When they were asked how they ended up finding a shell casing inside the garage after searching for it six months before and not finding it, I wanted one of the police officers to just say, "Honestly, we're just not very good at our jobs." The same was true of the key, which may have been planted. I would have been much more likely to believe they found this evidence because they did a crappy job searching beforehand. I buy that much more than the fact that they enacted a grand conspiracy to catch Steven Avery. 

Everyone in this county is too dumb for a conspiracy to work. 

5. Ken Kratz is the perfect villain for this story. 

Even before we find out that he's been texting domestic abuse victims that he makes six figures in an effort to get them to sleep with him, did you not see this coming? He's a textbook example of a guy who plays the moralist because he's actually got deviant desires of his own. But even if that's the case, his speech patterns, his incredibly creepy voice, his labored movements, his mustache, his languid corpulence, I mean, good Lord, the real surprise here is that juries would convict anyone with this guy prosecuting them.

This was not a debonair trial lawyer conspiracist, this was a dude who tried to pick up a domestic abuse victim by inviting her to an autopsy.

It's impossible to be less smooth.  

But the fact that Kratz was trying to have sex with domestic abuse victims doesn't mean he couldn't have also been a good prosecutor. We have this odd fixation with believing that people behave the same at all times. Why couldn't Kratz have been a good DA and also chased women on the side via incredibly inappropriate sexual advances? Why are these mutually exclusive elements of his character? All of us dwell with good and evil inside us on a daily basis. Sometimes we're good, sometimes we're bad, neither is reflective of our entire character.

It's the same reason I believe that Steven Avery could have been wrongly convicted of rape and rightly convicted of murder. 

Kratz was an easy villain, but that doesn't mean he framed Avery for a crime he didn't commit.

(The documentary film makers say they invited Kratz to be interviewed, but he declined. That was probably a smart move. With editing they would have just made him look worse.) 

6. The treatment of Brendan Dassey in this case is indefensible. 

I have no idea what Brendan Dassey did or didn't do because from the moment he confessed to rape and murder and then asked if he was going to make sixth period because he had a project due, it has been clear that he should never have gone to trial. The way that the officers railroaded him, the way that his own first attorney, Len Kachinsky, worked in cahoots with prosecutors -- allowing him to talk to police without being present as his lawyer is borderline disbarrable to me -- and the fact that Brendan was found guilty of murder on a theory that Ken Kratz wasn't willing to advance in the Avery trial, is a criminal court tragedy.

And don't even get me started on that asshole who had Brendan draw those sketches? And they were admissible? These videos were sickening to watch. It's hard to imagine the criminal justice system taking more advantage of a teenager of below average intelligence. 

Brendan Dassey definitely deserves a new trial.

7. There were quite a few legal failings. 

The lawyering in this case raises a larger point that most in the general public doen't notice -- the difference between a good and bad lawyer is seismic. Lawyering is just like any other profession, some people are excellent, many are average, and some are downright awful. Sadly, some of the worst and most overworked lawyers are in the criminal justice system. So the people who often need the best lawyers frequently end up with the worst.

There were several legal issues that surprised me. How in the hell did Steven's attorney's not object when Bobby Dassey testifies as to what Steven told him about helping to dispose of a body? It's probably admissible as a hearsay exception, but you still need to object on the record. And how did they not know that was coming? Did they not ever interview the witness? That was a big miss on their part.

Also, if you really believe Manitowoc County is biased against your client, why did they change the venue of the county but allow Manitowoc County jurors? Wouldn't you want jurors from outside the county if you think everyone is already biased against your client? That seems like a poor strategic decision. 

Now, the simple fact of the matter is that most people who are charged with crimes are guilty. Remember, beyond a reasonable doubt is a difficult standard to meet. You don't get charged with a crime unless it's much more likely than not that you've done it. But there is also zero doubt that there are thousands of people, maybe even tens of thousands, like Steven Avery in his original rape case, who are presently serving time for crimes they didn't commit. Again, it's all probability. Every profession has an error rate, the difference when it comes to criminal cases is that our errors can send innocent people to jail for life.

Or worse.  

8. I loved Steven's parents and Barbara, Brendan's mom.

They were fantastic and went a long way towards making their sons sympathetic. It's hard not to root for Steven and Brendan's moms. A mother's love is truly the greatest gift. There's a reason lawyers want family victims of the accused and the victim in the courtroom. It humanizes everyone. 

But keep in mind that every killer has a mom. And that most of those moms still love their sons and daughters.

9. Very little time is spent on Teresa Halbach, who is the true victim in this story.

Halbach is murdered at the age of 25. Her family, as all families would, wants to see her killer or killers brought to justice. I found the treatment of the Halbach family, particularly the family's spokesperson Mike Halbach, to be remarkably unsympathetic. Why didn't we learn more about Teresa? Unlike Steven, who still has a chance to change his life story, Teresa's ended. Other than one or two minutes of video, we learned nothing about her. Imagine if we'd heard from her parents. Do you think Steven Avery would have seemed as sympathetic then?

And the attempt to make her ex-boyfriend seem like a murderer was, to me, pretty shameful pandering on the part of the film makers. 

Now these family members have to revisit the worst moments of their lives. And listen to everyone claim that Steven Avery, a man who probably killed their loved one, is innocent and was framed by the police.

How tough do you think a new trial would be on them.   

And if, as I believe is highly likely, Steven Avery did commit the murder then the opinions of the police officers in 1985, that Avery was a dangerous felon, was actually correct. 

Indeed, the most astounding irony here is that if Steven Avery wasn't freed from jail for an improper rape conviction, Teresa Halbach is probably still alive.

10. Okay, there was a lot of serious commentary in this article, now I've got some humor for you.

If you don't want any humor in a serious article about a serious crime, you can end the column at number nine. But for the rest of you -- which is all Outkick readers who have made it this far -- here we go. 

Barb hanging out the Jeep Cherokee giving a post-conviction press conference is the most jaw dropping moment of Netflix television since season two of House of Cards. When I saw this I thought that we have to do an Outkick press conference with me hanging out the door of a Jeep motherfucking everyone one day.

Also, how about her husband running around screaming at the media to give her space? Give her space? This is the most amazing non-Bengals collapsing in the post-season moment I've seen this year. Get closer, we need more of this. Even if her crazy ass husband swings at you.

Is it wrong of me to also assume that Barb must be incredible in bed? About halfway through the documentary every time she came on screen all I could think was, "I bet Barb fucks like a damn rockstar." Hell of a move for her to give up the blonde hair sometime in the mid 2000's too. I really liked her more as a blonde. 

When Barbara and Brendan were talking in the jail house conversation and neither of them knew what the word inconsistent meant, I immediately thought this is what every Bama fan who hates me sounds like in his jail house conversations. "Clay Travis? More like Gay Travis! Roll. Tide."

Steve Avery doesn't own underwear? They just dropped this line in the first episode like it wasn't a big deal. Hello, the man doesn't own underwear? I'm voting to convict just based on that detail. He's really walking around all the time in jorts with no underwear underneath there. Who puts denim directly against their cock and balls? Total psychopathic behavior. 

Also, how about Steven Avery continuing to get new girlfriends? There have to be a bunch of single dudes watching thinking, "This dude has been locked up for over twenty years and he's getting more chicks than me." There also have to be a lot of single women watching thinking, "I'm totally going to be the old chick who is pen pals with a convicted murderer and ends up in a sexless relationship with a convicted murderer. That's how few good men there are out there. Even the murderers in prisons can find girlfriends."

I loved the Dateline producer on tape saying, "Right now murder is hot." People who work in television are total cynics. But it's also true. Murder sells. As evidenced by the millions of people who watched this documentary.  

The dueling daily press conferences were fantastic. I loved how the other lawyers waited to talk off to the side. We just needed some WWE style lipreading, "Whatever, bitch," or maybe a near fight or shoulder bump? Lost opportunity here. Honestly, I don't know how Kratz didn't accidentally bump into everyone given how awkwardly hefty he was.

Speaking of Kratz, if you'd told me there was going to be a bombshell reveal about him in episode ten I would have gone with he used to be a woman and transitioned to a man.   

What about the sneaky hot brunette reporter? You know Kratz loved her. Odds he sent her an inappropriate text message saying he made six figures? (By the way, if you doubted how much of a dump Manitowoc County was, the fact that "I make six figures," is a pick up line just confirms it.) And I know some of you women liked that Anderson Cooper looking reporter dude. Honestly, I kind of liked him too.  

How about Brendan Dassey being upset that he was in prison for murder and rape because he was going to miss Wrestlemania. Also, being basically bankrupt and dropping $50 on Wrestlemania is a total Avery move. 

Where does Brendan Dassey citing "Kiss the Girls," a book!, a book!, as his defense for how he made up this murder and rape story, rank in all time worst alibis? And it's a book that they made into a movie! His defense attorneys couldn't have suggested he go with the movie angle instead. It would have been a savage move for the prosecutors to take that book to the witness stand and have him read it out loud.

After like two pages the prosecutors could have said, "And it's your testimony today that you read this entire book and this is how you made up your story?" If Dassey said, "Yes," the prosecutor could have been like, "We're ready to take this to the jury. No further questions, your honor."

...

You can also read Jason Martin's review of the documentary here. I purposefully haven't read anything else about this case prior to writing my own review, but I'm sure his review is fantastic. He's a talented TV writer you all should be reading.


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