Avery Steven - Convicting Avery: the bizarre laws and broken system behind Making a murderer

That's the thrill of living on the Hellmouth. There's a veritable cornucopia of fiends and devils and ghouls to engage.

Wisconsin criminal defense lawyers sometimes refer to our state as the Hellmouth. A lot of strange, inexplicable things happen here. The upside, of course, is that we defense lawyers are rarely bored. Whenever we are fighting on behalf of our clients, there is, metaphorically, a veritable cornucopia of fiends and devils and ghouls to engage.

For example, Wisconsin is the state where a prosecutor threatened to arrest and criminally charge our school teachers for teaching sex educationeven though the sex education materials had already been approved by our state's legislature and governor.

Wisconsin is the state where the police are allowed to force their way into our locked, underground parking garages without a warrant.

Wisconsin is the state where a judge made up facts out of thin air to justify sending a nonviolent, autistic defendant to prisoneven though the prosecutor was only asking for probation.

Wisconsin is the state where we put people on the sex offender registry when they've never been convicted, or even accused, of a sex crime.

And Wisconsin is the state where a trial judge allowed the prosecutor's own employee to serve on a defendant's juryand then our state supreme court upheld the inevitable conviction.

I could go on (and on) with tales from the dark side, but my examples might simply be dismissed as anecdotal in nature. So I'll provide a compelling piece of empirical evidence: even though Wisconsin's population and demographics are nearly identical to our neighboring state, Minnesota, we incarcerate more than twice as many people.

In sum, Wisconsin loves its massive, draconian, ever-expanding, and increasingly irrational criminal justice industrial complex. Given this, I wasn't at all surprised that the events in Making a Murderer unfolded here, on the Hellmouth, just a two-hour drive north from where I practice criminal defense.

ONE DOCUMENTARY, TWO DEFENDANTS, AND THREE JURY TRIALS

Nearly everyone who picks up this book has already seen the Netflix documentary Making a Murderer. For those who haven't, put this book down and go watch it immediatelyand allow for a sizeable block of time; once you start watching, you likely won't want to stop. For the vast majority of readers who have already seen it, the next few paragraphs will serve as a brief recap of the three court cases featured in the documentary. (The chapters that follow will discuss the facts in much more detail.)

In 1985, Steven Avery was criminally charged for the rape and beating of Penny Beerntsen in Manitowoc, Wisconsin. Avery denied the allegations and had sixteen alibi witnesses who placed him far away from the crime scene. The state presented no physical evidence linking Avery to the crime. Yet, despite all of this, Avery was convicted based solely on the word of Beerntsen who identified him as her attacker. He spent eighteen years in prison until he was eventually exonerated by DNA evidence that proved, beyond any doubt, that serial rapist Gregory Allen was the real perpetrator.

Soon after Avery was released from prison, he filed a multimillion-dollar lawsuit against the Manitowoc Sheriff's Department and others for their role in his wrongful conviction. But shortly before key government agents were about to be deposed in the civil suit, Avery was again arrested and charged with multiple crimesthis time for allegedly murdering Teresa Halbach and burning her corpse.

In the Halbach case, unlike the Beerntsen case, the state had actual physical evidence against Averyevidence that, on its face and according to the media, appeared to prove Avery's guilt beyond all doubt. Readers will probably remember, for example, that Halbach's car key was found inside Avery's bedroom, his blood was found inside her car, and her remains were found incinerated right outside his bedroom window. But a closer examination of the evidence revealed several problems for the state.