“Making a Murderer” Part 2: More Questions than Answers

October 23, 2018

Netflix released Part 2 of its polarizing series “Making a Murderer” on Friday, October 19. It follows the post-conviction journeys of Steven Avery and his nephew,Justice statue with scales Brendan Dassey, led by their respective attorneys. Avery is represented by high profile attorney Kathleen Zellner, who has obtained the release of 17 wrongfully convicted defendants. Her plan is to count Avery as number 18. Dassey is represented by Laura Nirider from Northwestern University’s Center on Wrongful Convictions of Youth.  Avery and Dassey are serving time in separate Wisconsin state prisons for the murder of Teresa Halbach.

Brendan Dassey:

Dassey’s attorney is seeking a new trial on the basis of an involuntary confession. Dassey was 16 years old at the time of his confession and has intellectual and social deficits. Because of this, his attorney argues he was highly suggestible and didn’t understand the consequences of what he was telling investigators. She suggests that investigators coerced Dassey to provide particular details that were likely made up, but he was telling investigators what he though they wanted him to say. There was no scientific evidence connecting Dassey to the crime and it was his confession alone that provided police the opportunity to locate (or plant, depending on your opinion) incriminating evidence against Avery.

In Part 2 we learn that the Wisconsin Court of Appeals denied Dassey’s request for a new trial and the Wisconsin Supreme Court denied review. His attorney then seeks habeas relief from the Eastern District of Wisconsin. Due to the Antiterrorism and Effective Death Penalty Act (AEDPA), the standard to be met on habeas review is very high. Nirider explains that the federal court can only grant relief if the state court was unreasonably wrong – so wrong that no other fair minded judge could possibly agree with the state court.

U.S. Magistrate Judge William Duffin from the Eastern District of Wisconsin granted Dassey’s request for habeas relief and the state appealed. Dassey’s attorney filed a request to have Dassey released pending appeal, which the state opposed. Release is granted by the district court, but the state filed an emergency motion to stop the release. The district court affirmed Dassey’s release.

The state then filed an emergency motion with the 7th Circuit who granted their request to stay Dassey’s release pending appeal. On appeal, the 7th Circuit panel affirmed the district court’s habeas relief. The state then sought en banc review, which was granted, and they vacated the 7th Circuit’s panel opinion. On en banc review, the 7th Circuit reversed the district court’s habeas relief in a 4-3 opinion.

Dassey’s attorneys then set their sights on the U.S. Supreme Court. They recruit Seth Waxman, former U.S. Solicitor General, who has argued before the Supreme Court approximately 80 times. Waxman believes the Supreme Court should accept review of the case to provide guidance to state and federal courts on how to evaluate the voluntariness of a confession by a juvenile and one with intellectual and social deficits.  Part 2 ends with the Supreme Court denying review of the Dassey case. Dassey is serving a life sentence with eligibility for early release on November 1, 2048. He will be 59 years old.

Steven Avery:

Prior to representing Avery, Zellner tells him to really think about whether he wants her to represent him because she will leave no stone unturned and, if he is guilty, she will know it. Avery wants her to represent him.

Part 2 follows Kathleen Zellner in her efforts to uncover new details and evidence to undermine confidence in Avery’s conviction. To do this, she is seeking new evidence, uncovering constitutional violations (potential Brady violations, ineffective assistance of counsel, and ethical violations by the prosecutor), and identifying possible Denny (third-party) suspect(s).

The state agreed to release to Zellner several pieces of evidence from Avery’s trial. The amount of new information uncovered by Zellner during re-testing of evidence, new tests, and reenactments is voluminous, but I will touch on a few items here:

  • Avery undergoes brain fingerprinting to see if how his brain recognizes or responds to details of the murder. Zellner told Steven that this test was reliable and admissible just to see if Avery would still agree to testing. He did. He underwent 13 hours of testing. The test results showed that Avery’s brain did not know what happened to Halbach. The tester concluded that this points to his innocence.
  • Zellner reviews the path dogs took to track Halbach’s scent. Multiple dogs, including a bloodhound and cadaver dog) had tracked her scent to a quarry neighboring the Avery property. This conflicts with the state’s theory that Halbach’s vehicle never left the Avery property. Zellner believes Halbach’s vehicle was moved from the quarry and planted on the Avery property. Along with this, a neighbor tells Zellner that when investigators spoke to him, they seemed to know that the vehicle came off the Avery property before it was found in southeast corner of the Avery property, but this was never presented to the defense.
  • A forensic report in excess of 2400 pages was taken from the computer at the Dassey home. The computer contained thousands of disturbing images of bondage, torture, pedophilia, drowned girls, and decapitated girls. While Zellner doesn’t explain exactly how, she asserts the images could only have been accessed by Brendan’s brother, Bobby Dassey.
  • On the day of Halbach’s disappearance, Bobby Dassey testified he left his home at about 2:45 pm to go hunting and when he left, Halbach’s vehicle was still at Avery’s but he did not see her. Avery maintains that very shortly, like a minute, after Halbach left his property on the day of her disappearance, Bobby Dassey left his own home (located next to Avery’s). Zellner and her team do a reenactment of Avery’s version of events to see if Bobby Dassey could have caught up to Halbach in her vehicle. The reenactment shows that he could have. Zellner believes Bobby Dassey is a possible Denny
  • Halbach had her dayplanner with her in her vehicle on the day she disappeared. Zellner knows this because while Halbach’s planner was from an Outlook program, she had handwritten appointments documented as well. The handwritten appointments were created on the day of her disappearance prior to going to the Avery property to take photos of a vehicle for AutoTrader. Her phone records and reports from the individuals she spoke with to schedule those handwritten appointments are consistent with this theory. Both individuals recall Teresa was driving while they were scheduling appointments. She told one woman that she had to pull over to write down the appointment. However, Halbach’s best friend reported that Ryan Hillegas, Halbach’s ex-boyfriend, had brought a print out of Halbach’s day planner – with the handwritten notes – when friends met on November 3. Halbach’s car wasn’t located on Avery’s property until November 5. So Zellner asks, how does Hillegas have the paper planner unless he had access to her car after she’s been to the Avery property? Could Hillegas be another Denny suspect?
  • A witness contacts Zellner about something that has bothered him for years. He said that on November 3 he was driving on a road near the quarry and Avery property and he saw Halbach’s car in the woods with the nose pointed in. The next day he stopped at a gas station in a neighboring town and saw the missing person poster for Halbach with pictures of her and her car. A Manitowoc County deputy was at the gas station and he reported to the deputy that he saw Halbach’s vehicle down the road. There was no report made the deputy documenting this witness account. The witness says that when he watched “Making a Murderer” Part 1, he recognized Sgt. Andrew Colburn as the deputy he had spoken with about the vehicle. Part 1 documents Sgt. Colburn calling in Halbach’s license plate to dispatch later in the day on November 4, the day before the vehicle was located on Avery’s property.

This is barely scratching the surface of what Zellner uncovered. If you watched Part 1, regardless of whether you felt like the state got it right or wrong, Part 2 will likely leave you with doubt that Avery and Brendan Dassey committed the crime that resulted in their convictions.

Zellner filed a petition for post-conviction relief in excess of 1200 pages. Sheboygan County Circuit Court Judge Sutkiewicz was assigned the case and denied Zellner’s request for a new trial without ordering an evidentiary hearing. Zellner and the state had already agreed to additional testing and had discussed scheduling issues, but had not yet filed a stipulation with the court. Zellner files a motion to vacate the court’s decision so additional testing can take place. The state says they will not join the motion to vacate, but they will not object in light of their earlier agreement. Zellner also files a motion for reconsideration. Judge Sutkiewicz denies both the motion to vacate and the motion for reconsideration and Zellner appeals to the Wisconsin Court of Appeals. On June 7, 2018, the Wisconsin Court of Appeals sets Avery’s case back to Judge Sutkiewicz, instructing her to hold any necessary hearings and to rule on the potential Brady violation concerning the CD of the report on the Dassey computer that was not disclosed to the defense. Avery is serving a life sentence and is not eligible for early release.

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