Readers of Science 2.0 and Keeping the Gate will be interested to read a recent paper published by my colleague, Jay Jarvis, in the Winter 2016 edition of Crime Lab Report. In it, he questions the motives and tactics used to produce a Netflix docudrama about the convictions and exonerations of Steven Avery in Wisconsin. If you think that Netflix got the story right, you may want to think again. And while you are at it, you may want to think about what "advocacy journalism" might mean for the future of science.
Netflix Docudrama Omits Key Facts about Steven Avery Conviction
January 16, 2016 by Jay Jarvis, Crime Lab Report, Volume 10, Number 1, Winter 2016
The docudrama “Making a Murderer” has captured the attention of millions of viewers around the world since its release on December 18, 2015 by the internet-streaming media provider Netflix.
Ten years in the making, the ten-part series was the work of Moira Demos and Laura Ricciardi, whose inspiration reportedly came after reading a November 23, 2005 article in The New York Times when they were both graduate students at Columbia University.
The story revolved around Steven Avery, a Wisconsin man who was released from prison in 2003 after DNA extracted from a pubic hair was linked to another individual, Gregory Allen. Avery was originally convicted for the 1985 attack of a jogger, Penny Beerntsen, and sentenced to 32 years. Avery’s conviction was based primarily on Beerntsen’s eyewitness identification of Avery as her attacker.
Following his release, Avery’s attorneys filed lawsuits seeking $36 million in damages for his wrongful conviction from Manitowoc County and an additional $1.09 million from the Wisconsin Claims Board for back wages.
This, according to the creators of the docudrama, is the reason why Avery was framed for murder in 2005.
According to media reports connected with the trial of Avery for the murder of Teresa Halbach in 2005, Avery lured the victim to his residence on October 31, 2005 near the family’s auto salvage yard under the guise of photographing a car for AutoTrader magazine. One of Avery’s nephews, Bobby Dassey, stated he saw Halbach walking toward Avery's trailer around 2:30 pm and a few hours later noticed that Halbach's Toyota RAV4 was gone. Brendan Dassey, Avery’s other 17-year-old learning-disabled nephew, told investigators he took mail to Avery's trailer that day after getting off the school bus when Avery invited Dassey to have sex with Halbach, who reportedly was handcuffed and shackled. Dassey reportedly went home briefly, then returned, stripped, raped Halbach, then, after a discussion with Avery, helped bind and stab her before the pair took her to a garage where Avery shot her. After that, according to the confession, the pair burned her body in a pit.
In 2007, Avery was convicted of murder and sentenced to life in prison with no chance of parole. Judge Patrick Willis reviewed Avery's previous convictions for burglaries, threatening a woman with a gun and dousing a cat with gasoline before throwing it in a bonfire, before sentencing him. “You are probably the most dangerous individual ever to set foot in this courtroom,” Judge Willis told Avery. “From what I see, nothing in your life suggests that society would ever be safe from your behavior.”
Enter Ricciardi and Demos. Ricciardi, who holds a law degree from New York Law School, told Mashable’s Saba Hamedy “Steven was uniquely positioned as he had this significant lawsuit pending against the county. If he had prevailed and been awarded those damages, I think it would have had a devastating impact on that county.”
But not everyone believes Avery was framed.
“Making a Murderer is a work of advocacy journalism. We know this because of how much the documentary left out,” wrote David Harsanyi in a January 6, 2016 article for The Federalist.
But Harsanyi seems to be in the minority, given the fact that an estimated 300,000 plus individuals have signed petitions to pardon Avery.
“This is utterly absurd,” Harsanyi says.
Key evidence conspicuously absent from the docudrama included touch DNA found on a latch under the hood of Halbach’s Toyota RAV4 and DNA from blood found inside Halbach’s vehicle, both linked to Avery. The victim’s car was found on the family’s auto salvage lot, partially concealed with plywood and vegetation. Despite the defense theory that blood evidence was planted there by investigators who had access to a vial containing Avery’s blood, testing conducted by the FBI failed to find any traces of the blood preservative EDTA in the samples. And a fired bullet, with Halbach’s DNA on it, was found in Avery’s garage and was forensically linked to a rifle that hung over Avery’s bed.
Other missing pieces included the fact that Avery had specifically requested Halbach to take the photos for AutoTrader and gave a false name when he did so. He also called Halbach’s cell phone three times the day she disappeared, utilizing the *67 feature to obscure his identity. Handcuffs and leg irons were found at Avery’s residence; he admitted to buying them so he could use them on his then-girlfriend. This evidence helps support the statement made by Brendan Dassey. Additionally, the key to the victim’s car was found in Avery’s residence, which had his touch DNA on it.
Now, to believe the theory that Avery was framed, one must also believe that a nearly improbable number of crimes were committed by numerous persons involved in the case, including two prosecutors, several local police investigators and forensic scientists at the Wisconsin State Crime Lab. The criminal acts would have included placing the victim's car on Avery’s property, along with the blood, the charred remains, the car keys, and fabricating the plethora of other evidence that implicated Avery. In an ironic twist, the DNA analyst who testified in the murder trial was also the person who tested the evidence that exonerated Avery in 2003.
Former Calumet County district attorney Ken Kratz was the special prosecutor on the Halbach murder case. In order to avoid any appearance of conflict due to Avery’s pending lawsuit, Manitowoc County requested that neighboring Calumet County authorities lead the investigation. Kratz told Maxim that before the documentary’s release, he asked to view a version of the film that had already been screened at a film festival but the filmmakers refused. “So I thought, well, this looks exactly like what I thought it was - I’m being set up. If I’m not being provided the same opportunity as the defense, if I’m not being shown a finished product that thousands of people had seen. There’s no justification for not showing that to me unless you are trying to ambush me,” Kratz was quoted as saying.
Kratz also claimed Avery created a diagram of a torture chamber while in prison, even telling other inmates of his plans to torture, rape and murder young women. The jury never heard that evidence, the trial judge deciding it was too prejudicial.
“You don't want to muddy up a perfectly good conspiracy movie with what actually happened and certainly not provide the audience with the evidence the jury considered to reject that claim,” Kratz told People magazine.
In response to Kratz’s claim, Ricciardi told The Wrap’s Daniel Holloway “I’d say that all of the most significant evidence of the state is in the series. It was a nearly six-week-long trial, and it would just be impossible for us to include all of the less significant evidence.” (emphasis added)
Perhaps David Harsanyi asked the most probative question of all; “If Avery’s defenders are convinced that DNA from one pubic hair completely exonerates him in the rape case, why does DNA evidence in this case not prove his guilt?
Jay Jarvis is the principal scientist and consultant at Arma Forensics near Atlanta, Georgia. He is the Associate Managing Editor of Crime Lab Report.