The first episode of "Making a Murderer" appears to have two primary goals:
- Establish the fact that Steven Avery was wrongfully convicted of rape.
- Establish a motive for the Manitowoc County Sheriff’s Office to wrongfully convict Stephen Avery of the crime of murder.
The producers accomplished both goals nicely. There seems little doubt, based on much uncontested evidence, that Steven Avery had nothing to do with the rape of Penny Beerntsen.
As far as establishing motive for Manitowoc County, however, one has to realize that simply having a motive to do something doesn’t mean somebody or some organization is going to do the thing for which they have motive. There exists a large insurance policy on my life, of which my wife Michelle is the beneficiary. Michelle has not, as of this writing, killed me--but technically, she has motive.
Likewise, the fact that Manitowoc County has a potential motive to frame Steven Avery for murder means nothing, absent actual evidence of his involvement in the actual crime, or the complicity of Manitowoc county in an intentional conviction of a man they knew to be innocent.
In fact, no evidence of any kind was put forth in Episode 1 regarding Steven Avery’s culpability for, or innocence of, the death of Teresa Halbach. That said, I think it important that we discuss evidence in general, especially in light of how I will be evaluating evidence in this case analysis. This includes the value of certain evidence, and the weight I personally, as an investigator, give each type of evidence.
THE ‘CSI’ PROBLEM
Because of the ‘CSI’ television franchise, 48 Hours and dozens of other forensically-based television shows on the air now, the American public has been led to believe that certain types of evidence are better than others. This is true, but the best evidence is rarely what the public would assume, based on those shows. Here are some observations that I believe are relevant:
In my opinion and the opinion of many, possibly most prosecutors, I believe, one of the very worst pieces of evidence that can be brought into court is an eyewitness. Eyewitnesses are notoriously inaccurate. I investigated a school shooting where initial ‘eyewitness’ reports said that two Asian men in camouflage entered the building, shooting. The actual shooter turned out to be a lone white male in a polo shirt and jeans.
Eyewitnesses are usually asked to accurately remember things that happened at moments of terrible fear or confusion, and almost without exception, they are inaccurate. A case in point in Episode 1 is that the prosecution’s ‘eyewitness,’ Penny Beerntsen, who promised herself that she would absolutely remember the man who was hurting her, then fingered the man that physical evidence proved it could not be. This is an example of errors made even when the eyewitness is concentrating on gathering accurate information.
Remember, NFL referees are trained, professional eyewitnesses, and they get reversed every day they work.
Throughout these pages, you will likely see me take dim views of eyewitness accounts. Remember, Justice is blind, and so are most eyewitnesses.
Another "infallible" piece of evidence, we are led to believe, is DNA evidence. This is not a factual belief.
While DNA is an extremely useful and frequently excellent piece of evidence, it can also be misleading if improperly collected, handled, analyzed or interpreted. It is also found in widely varying amounts. Large amounts provide extremely strong evidence; tiny amounts can mislead.
The best analogy for DNA is that of a photograph. Remember when people used ‘darkrooms’ to develop photographs? I was trained to develop photographs that way. I learned that if you left the exposed print paper in a certain chemical too long, or removed it too soon, you radically effected the quality of the photograph. The photo would be too dark—to the point that it was simply black, or too light—to the point that you had only a solid-white print. And that was if the photograph itself was exposed perfectly.
This was the situation in the Amanda Knox case in Italy, on which I worked for years. At the crime scene, scientifically insignificant amounts of DNA were claimed to have been the DNA of Amanda, her boyfriend, and the victim. This wildly-false information was used to convict two innocent kids. In reality, the DNA available to the Italians was too small to accurately test. Therefore, the ‘picture’ created by the Italian crime lab was the equivalent of a perfectly black photograph of a room, on which the authorities disingenuously claimed that they could see the room clearly. This lie cost two innocent people four years of their lives—each, until the DNA evidence was thrown out and the innocent were exonerated by Italy’s highest court.
This is the problem with DNA. When a jury hears the letters “DNA,” they believe that the evidence is absolute and carved in granite. It might be, but then again, it might not be. The quality and quantity of the DNA sample and the quality of the processing will determine whether it is reliable. Like Ronald Reagan said, "Trust, but verify."
Polygraph. Don't get me started on polygraphs. There is a reason polygraph examinations are not admitted into court. They are more art than science and inherently dependent upon the skill of the polygrapher administering the test. In my opinion, the examinations of certain polygraphers are accurate more than 90% of the time. The examinations of others are no better than opening fortune cookies. In a case with which I am currently involved, a woman was murdered and dozens of men were polygraphed regarding the crime by one particular polygrapher. Many, many, many of those polygraphed were found to be “deceptive” in claiming they had nothing to do with the murder. The DNA of the men examined did not match the semen DNA left by the murderer and most had alibis for the night of the killing. Ultimately, an assessment of the polygrapher’s conclusions in this case convinced me that the police would have been better off flipping a coin than trusting his examinations.
Critical thinking required
Trials are more than simply looking at the evidence presented and following that to its logical conclusion. It is crucial that trials determine whether the claimed evidence is valid. In every case of wrongful conviction on which I have ever worked, it wasn’t the conclusions taken from the evidence that were incorrect, it was that the evidence itself was invalid, misinterpreted, falsified, or hidden.
CUT TO THE CHASE
As an investigator, watching Episode 1, I was struck by the reality of a family divided, and divided by which side of law enforcement they were on. One of Steven Avery's cousins was a deputy sheriff. At least one other was the wife of a Manitowoc County deputy sheriff. Not surprisingly, the family support for Steven Avery is split right along law enforcement lines. This has resulted in distrust on both sides.
The statement of (cousin) Sandy Williams that Steven Avery approached her car as she drove by – on more than one occasion – with his penis in his hands, is not a false allegation which would easily spring to mind. False allegations are usually simpler and less complicated. What was Steven Avery's response to this allegation?
Avery said, “She was telling everybody about it, and it wasn't true.”
Those were two separate statements separated by a comma. “She was telling everybody about it,” seems to this investigator to refer to something that existed or happened. He referred to “it,” as if it were a real thing; an event or an action. He adds, “And it wasn’t true,” almost as an afterthought or correction. That was a telling faux pas. Is that evidence? No. Does it make this investigator believe that the incident(s) occurred? Yes. Absolutely.
Likewise, the incident in which Steven Avery (by his own admission) chased down the same woman on a snowy road, stopped her car and pointed a shotgun at her is disturbing at least.
Finally, the fact that by his own admission, he (and others) committed three burglaries simply out of boredom is frightening. And regardless of how he tries to explain away throwing a beloved family cat in the fire to burn to death, that is the act of a disturbed mind. None of this convicts him of murder, however.
The Manitowoc City Police Department told the Sheriff’s Office that they had strong evidence that the man the Sheriff's Office had arrested for the Beerntsen rape (Avery) was the wrong man, and that information was disregarded. In my opinion, this is evidence of intent to wrongly convict, and is therefore criminal in nature.
Finally, Episode 1 provided no evidence whatsoever regarding the murder Steven Avery is alleged to have committed. As evidence is brought forth in upcoming episodes, I will do what I can to determine the validity and relevance of that evidence, and I will not limit myself to the evidence claimed by the television show itself.
After Episode 1, I have no opinion whatsoever on the guilt or innocence of Steven Avery.