Thu
Sep 15 2016 10:00am

Indefensible: New Excerpt

Michael Griesbach

Indefensible: The Missing Truth about Steven Avery, Teresa Halbach, and Making a Murderer by Michael Griesbach exposes the shocking facts deliberately left out of the hit Netflix series Making a Murderer—and argues persuasively that Steven Avery was rightfully convicted in the 2005 killing of Teresa Halbach.

After serving eighteen years for a crime he didn’t commit, Steven Avery was freed—and filed a thirty-six-million-dollar lawsuit against Manitowoc County, Wisconsin. But before the suit could be settled, Avery was arrested again—this time for the brutal murder of Teresa Halbach—and, through the office of a special prosecutor, convicted once more.

When the saga exploded onto the public consciousness with the airing of Making a Murderer, Michael Griesbach, a prosecutor and member of Wisconsin’s Innocence Project who had been instrumental in Avery’s 2003 exoneration, was targeted on social media, threatened—and plagued by doubt. Now, in this suspenseful, thorough narrative, he recounts his own re-examination of the evidence in light of the whirlwind of controversy stirred up by the blockbuster true-crime series.

As Griesbach carefully reviews allegations of tampering and planted evidence, the confession by Avery’s developmentally disabled nephew, Brendan Dassey, and statements by Avery’s former girlfriend Jodi Stachowski, previously sealed documents deemed inadmissible at trial by Judge Patrick L. Willis—and a little-known, plausible alternate suspect—Griesbach shows how the filmmakers’ agenda, the accused man’s dramatic backstory, and sensational media coverage have clouded the truth about Steven Avery.

Now as Avery’s defense counsel files an appeal and prepares to do battle in the courtroom once more, Griesbach fights to set the record straight, determined that evidence should be followed where it leads and justice should be served—for as surely as our legal system should not send an innocent man to prison, neither should it let a guilty man walk free.

FOREWORD

Indefensible recounts a three-month journey I embarked upon after I watched the Netflix documentary Making a Murderer, along with tens of millions of other viewers around the globe in late December 2015. The trip was strange because I thought I’d already taken it—twice. Once, when I watched Steven Avery’s murder trial unfold in the county where I work as a prosecutor, and again three years later when I reviewed its high points for the final section of a book I was writing about the Avery case entitled The Innocent Killer. That book, published by the American Bar Association in 2014, focused on Avery’s wrongful conviction in 1985, not his 2007 trial.

In neither of those trips did I pay close attention to the land- scape of the murder trial. It wasn’t my trial, after all; I was not directly involved. To my surprise, I began to wonder while watching the series, whether I had taken a wrong turn ten years earlier and reached the wrong conclusion when, like everyone else in my line of work, I had assumed the evidence-planting defense in the Avery trial was nonsense. Avery’s accomplice, Brendan Dassey, had confessed and identified his uncle as the main culprit. And there was overwhelming physical evidence linking Avery to the scene of the crime. It was, as some prosecutors like to say, a slam- dunk case for the state. At least that’s what I thought at the time.

Was it possible we might all have been wrong? I knew the documentary’s producers were biased in favor of Avery. They had interviewed me for the project, and they even tried to get me to come around to their way of thinking. But some of the material in the docuseries was new to me, and none of it was complimentary to the police with regard to how the evidence was found and the interrogation methods used on Brendan Dassey, Avery’s sixteen-year-old learning disabled nephew and accomplice in Teresa Halbach’s murder.

So I decided to journey through the trial again, but this time more carefully—as if my life depended on it—because it might. Half the country, it seemed, was convinced the police had set up Avery again, that lightning had struck twice and that he had been wrongly convicted a second time. Many people were angry. Some made threats on my life and the lives of others because we were part of Manitowoc County law enforcement and had spoken out publicly of Avery’s guilt in the wake of Making a Murderer.

Indefensible recounts my independent search for the truth about the Steven Avery case. I thought I knew that truth, but it was to some extent fractured by Making a Murderer. As I delved deeper into the circumstances surrounding Teresa Halbach’s murder, the truth became whole again.

As in any issue as complicated and as controversial as this one, the truth is elusive in the Avery case. Peruse the Reddit pages on the topic of Steven Avery for an hour and you will see what I mean. I tried to be as careful and unbiased as possible when I conducted my research for this book, but in the end perfect objectivity is only something we can strive for.

I’m still a prosecutor in Manitowoc County, Wisconsin. This is the background I come from. I’m not “pro prosecution” in the usual sense. I have believed for a long time that the criminal jus- tice system is broken to some degree, and needs to be reformed. I have given presentations about wrongful convictions and police and prosecutor misconduct. I have written about these issues as well and about what can go wrong if prosecutors lose sight of their calling and seek convictions instead of justice.

I share with the creators of Making a Murderer a desire to draw attention to broken aspects of the criminal justice system so that it can be reformed where needed. I also serve on the advisory board at the Wisconsin Innocence Project, a role that should not be—but is—a rarity among prosecutors. That’s not to say my judgment is free from any and all bias. No one’s is. So take what you read as you will and decide for yourself.

There are a few things you should know at the outset. First, al- though I am still a prosecutor in Manitowoc County, I wrote this book in my personal capacity as a private citizen who has made his home in a Wisconsin community that has been bedeviled by the Avery case for thirty years. I played a role in Mr. Avery’s exoneration in 2003, but I was not involved in his wrongful conviction in 1985 nor in his murder trial in 2007. Mr. Avery’s thirty-six-million-dollar lawsuit against the county, its former sheriff, and former DA raised a conflict of interest for our office and required us to appoint a special prosecutor to act in our stead. I observed the murder trial as every other resident of the state of Wisconsin did and used the resources available to the public to write this book.

Second, you should be aware that some disturbing evidence is in this book. Some of it was deemed inadmissible in the murder trial. The rules of evidence are meant to ensure that only relevant and not unduly prejudicial evidence is presented to the jury. But these rules only apply to proceedings in court, since that is the forum where a defendant’s liberty is at stake, not in the writing of a book. As they should, these rules err on the side of caution in order to protect the liberty of a person charged with a crime. But neither Steven Avery nor Brendan Dassey’s liberty is at stake through the writing of this book. I have included these facts because when considered in light of all the other evidence, they have a bearing on whether or not Mr. Avery committed the murder. To ignore them would be to ignore evidence that might bring us closer to the truth, which is the ultimate aim of this book. It is worth noting that Making a Murderer did the same thing, with regard to evidence favorable to Mr. Avery and Mr. Dassey.

Nonetheless, caution must be exercised in determining the weight to assign to this evidence. Much of it was deemed inadmissible during the trial because of its tendency to elicit a strong emotional response and lead some jurors to conclude that because Avery acted in a certain way before, he probably did so again. To say the least, this evidence is not complimentary to Mr. Avery and if it is true, he is not the kind of man you want hanging around your daughter or your wife. The aim of this book is to ap- peal to reason, and as with the rest of the facts presented in these pages, it is hoped that readers will give to this evidence only the weight it truly deserves.

Readers should also know that I changed names of some of those involved to a lesser degree, including witnesses and victims in an effort to protect them. The three-decade-long Steven Avery case has caused enough harm over the years. The last thing I want to do is add to its impact by making known the identity of those who have to date largely avoided the public eye.

This book’s subject matter is a court case entitled State of Wisconsin v. Steven Avery, and like the case itself, its focus is on the factual and legal issues relevant to determining the defendant’s innocence or guilt. While Teresa Halbach and her family play an obvious role in the book, they are not its primary focus. This is by no means to suggest that the author does not care about Ms. Halbach or her family. No matter what one believes about Mr. Avery’s guilt and whether the police planted evidence to wrongly convict him a second time, one thing is sure—Teresa’s loved ones will never again see her walk through their front door. On another level, that fact makes all the rest nothing but white noise.


CHAPTER 1

“IN ON IT TOO”?

I sat there, frozen, staring over the open file. I couldn’t move. How could I have forgotten? I prosecuted the case myself. Did we do it again; did we wrongfully convict an innocent man? Twice!

The troubles began almost immediately after the documentary aired. It started with social media; the bomb threats came later. You’re an utter fool, pronounced the first message on my book’s Facebook page, either that or you’re in on it too.

“Utter fool,” I could live with. Everyone’s an utter fool some- times, some of us more often than others. But “in on it too”?

The documentary—such an innocuous-sounding word—that had upset my former Facebook friend had just been released on Netflix, but it would soon become an international smash hit. It was, of course, Making a Murderer, about the Steven Avery case.

Avery is the wrongly convicted Wisconsin man who, two years after his release from prison for a crime he did not commit, perpetrated one of the most horrific murders in the history of Wisconsin, a state with a long and ignominious past of horrific murders.

At least that’s what the majority of Wisconsinites and the few who paid attention to the story outside our borders thought before Making a Murderer turned the case upside down. All but the most conspiracy-minded agreed with the jury’s verdict: that Avery and his sixteen-year-old nephew and accomplice, Brendan Dassey, were guilty of the unspeakably brutal murder of Teresa Halbach.

Still employed as an assistant district attorney in Manitowoc County, Wisconsin, where these events occurred, but not directly involved in prosecuting either of Avery’s cases, I had written my own account of this now thirty-year crime saga in a book entitled The Innocent Killer. The American Bar Association published it in the summer of 2014—I began writing it more than seven years earlier—long before Making a Murderer was even a glimmer in the eyes of its Hollywood producers. The confidence I expressed in the final chapters of my book—Avery was guilty as charged of murdering Teresa Halbach, and that the police had not set him up a second time—was the source of my Facebook messenger’s anger. I knew this because he admitted he enjoyed The Innocent Killer when he read it several months earlier, but after bingeing his way through all ten episodes of the documentary, his opinion had changed, and as I would soon find, he was not alone.

I had minced few words when describing the gross misconduct of the former sheriff and former district attorney in Manitowoc County. Steven Avery and his family were the victims of an injustice, horrific in its own right, in his 1985 wrongful conviction. De- pending on whether you count the six year sentence Avery was serving concurrently for another unrelated but lawful charge, or not, he served either twelve or eighteen years in prison for a crime he did not commit. Either way, it’s one hell of a long time to be sitting behind bars for something you didn’t do. The county’s top two law enforcement officials had intentionally, or at the very least recklessly, sent an innocent man to prison.

I wrote the book because I believed, and still do, that the three-decade-long Steven Avery saga is the best example of what can go wrong when police and prosecutors lose sight of their calling by seeking convictions instead of justice, as required by their oaths of office. An injustice that began in 1985 has festered ever since, leaving many victims in its wake and nearly destroying a local justice system that is still reeling from renewed exposure.

Steven Avery’s arrest and trial for Teresa Halbach’s murder in 2005 figures only into the final chapters of The Innocent Killer, and then only in the context of how his murder trial became inter- twined with his wrongful conviction two decades earlier, nearly resulting in his acquittal. The book’s treatment of the Avery saga was the opposite of Making a Murderer’s, which concentrated heavily on the murder case, exhausting its treatment of the 1985 wrongful conviction case by the end of the first few episodes.

I thought I had been about as even-handed as anyone could be when writing a book. I spared no sympathy for Avery and his family in recounting the wrongful conviction in 1985, nor condemnation of the sheriff and the district attorney who were responsible. But at the same time, except for drafting the initial search warrant, I was not involved in the murder investigation or its lengthy trial. I experienced it from the same perspective as nearly every other Wisconsinite: from the media. After observing the murder case unfold, I had no doubt that the jury got it right that the innocent man had turned into a cold-blooded killer. Making a Murderer, despite its creators’ claim that it takes no position on Steven’s guilt, takes the opposite view.

My impression from watching the trial from afar was that the trail of evidence in the Teresa Halbach murder case led directly to Steven Avery. There was no way of escaping it, at least that’s what I had assumed at the time. Those who chose the other direction, I believed, had taken a misguided trip through the brambles and smoke-filled brush laid down for them by the defense in the form of claims of evidence-planting and a police frame-up.

I also believed that the trial judge, Mr. Avery’s skilled and de- voted defense team, and, yes, even the prosecutors had provided Steven Avery with an exceedingly fair trial. The issues had been joined, and after carefully considering their verdict over the course of three days of deliberations, the jury members had followed where the evidence objectively led.

*             *             *

Since I had called out my predecessors for inflicting on Steven Avery and his family an inexcusable injustice, you might think viewers of the documentary, incensed at what they believed was a second wrongful conviction perpetrated upon Mr. Avery, would think twice before assuming I was “in on it too.” But you would be wrong. Nor did it matter that during the past several years I had become an advocate for criminal justice reform, presenting frequently at conferences and other public forums on the topic of wrongful convictions, and particularly on those where police and prosecutor misconduct played a role. I’d written published articles on the topic and had become none too popular among a subset of my colleagues as a result. But none of that seemed to matter to those who were convinced after watching Making a Murderer that I was part of a corrupt, local law-enforcement com- munity that did the unthinkable by convicting an innocent man not once, but twice.

I had spoken out extensively on radio, television, and print interviews about how Steven Avery was, to use a colloquial term, screwed over by the former sheriff and DA. Dean Strang, co-counsel with Jerome Buting, for Avery in the murder trial, served as a panelist in a presentation I moderated in Milwaukee, just a few months before Making a Murderer aired. As did Walt Kelly and Steve Glynn, who were Avery’s attorneys in his thirty-six-million- dollar wrongful conviction lawsuit. I also serve on the advisory board at the Wisconsin Innocence project in Madison, a rarity among prosecutors but not enough to convince the conspiracy theorists that I was not “in on it too.”

So why had my former Facebook friend and thousands that would follow in his social media wake become so angry at anyone who disagreed with Making a Murderer? What kind of spell had the documentary cast over its viewers that over five hundred thou- sand citizens would sign two separate petitions, one to President Barack Obama and the other to Governor Scott Walker begging for Steven Avery and Brendan Dassey’s release? Why would legions of Netflix viewers all but convict local law-enforcement officers—some of them my friends, and none of them here when Avery was wrongly convicted thirty years earlier—of planting evidence to wrongly convict him again? And finally, how had one documentary so profoundly inflamed the nation’s passions that dozens of troubled individuals threatened my life and that of several others who work in local law enforcement?

What was it about Making a Murderer that so firmly convinced people that lightning had struck twice, that Steven Avery had been wrongly convicted a second time? And why were they so mad?

There was only one way to find out. I had to watch the show.

 

Copyright © 2016 Michael Griesbach.

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Michael Griesbach is a longtime Wisconsin prosecutor and a member of the board of advisers at the Wisconsin Innocence Project. He is a frequent presenter and panelist on the topic of wrongful convictions and their causes. He has also presented on other topics concerning the criminal justice system and its need for reform. Mr. Griesbach is the author of the widely acclaimed, The Innocent Killer: A True Story of a Wrongful Conviction and Its Astonishing Aftermath, published by the American Bar Association in 2014. He hopes to leave his readers better informed about the criminal justice system and more concerned about those whose lives it deeply affects. He lives in northeastern Wisconsin with his wife Jody and their four children.

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