Making a Patsy

Spoiler Alert – he did it. I know, you just finished binge watching the Netflix series Making a Murderer and you’ve trawled around the internet soaking up outrage about the broken American justice system. I feel ya, I felt the same way. But I have this habit, born of being trained in math and a lifelong love for science, whenever I feel my emotions swayed into advocacy for a certain position, I pause to find out what I don’t know I don’t know, to borrow a Rumsfeldian phrase. Anybody looking to sign petitions advocating Steven Avery’s release is advised to slow down (don’t worry, he has plenty of time), dig a little deeper and think a little more about what you’ve seen.

So I’m making a big assumption here, that you’ve actually had a chance to pore through all ten episodes of the series on Netflix. If you did you probably know that this was one of the most compelling and infuriating true crime stories ever put to film. The story is so unbelievable and the characters so bizarre and/or intriguing that you can’t help but get swept up in its tidal wave of implied indignation. I say implied because the filmmakers wisely decided to leave themselves or any other narrator out of the story, and so we are left with the real impression that we are watching the whole thing happen without being told what to think. But make no mistake, the viewer is guided every step of the way and is in the position of being an extended member of the Avery family, god forbid, sympathizing naturally with your brothers, sisters and lawyers, who are all you know after all.

If you haven’t seen it yet, it revolves around Steven Avery, a man falsely accused of rape in 1985 and exonerated and released in 2003* due to new DNA evidence. It is implied that he was set up by the local police because of his shaky history with the law. Then, 2 years after he is released, and this is where it gets weird, he is arrested for the murder of Theresa Halbach, a woman last seen on his property on October 31, 2005. Repeated searches of his property turned up her car in his salvage yard, his blood in her car, a large cut on his hand, her burned remains in 3 locations in the yard, and her car key in his bedroom. But wait, it gets even stranger. 5 months after he is arrested, his nephew Brendan confesses to police about assisting his uncle in raping and killing Ms. Halbach. Now we have two trials, and, the filmmakers would have you believe, two miscarriages of justice highlighted by police misconduct and a massive conspiracy of law enforcement.

Oh, I forgot to mention that both Steven and Brendan were convicted and are serving long prison sentences as I type this. As a result of the doc, there is a massive effort underway, likely doomed to fail, to secure pardons for the Avery’s or at least new trials. The film, with the added hand holding of Avery’s defense team, the newly sexy Dean Strang and Jerry Butting, works to poke holes in all the evidence by positing a “frame-up” theory that never gets fully explored. That’s natural, as the defense only needed to create reasonable doubt on the evidence and attack it piecemeal without articulating any clear idea of “here’s what we think actually happened”. It didn’t work, as I suspect these gambits rarely do, because the jury is forced to engage in fanciful what-ifs while ignoring overwhelming evidence staring them right in the face.

I’ll say straight up that after reading Brendan’s various confessions I have no idea what his role was in the murder because he is not the brightest bulb on the Christmas tree and he seems to be led by the interrogators on certain points. I’ll also say that there are some open questions that don’t have completely satisfactory answers, like what happened to all the blood, assuming the murder scene was a bloody mess (not necessarily a given). But still, Brendan seems to know more than he should that jives with the evidence, and admitted that a bleach stain on his pants came from helping Steven clean his garage the night of the murder. He was probably there and took part in some way.

But Steven Avery is most likely guilty, and yes I’d say beyond a reasonable doubt. The fact is, large, hidden conspiracies like the one implied here, involving several people in different positions, don’t really exist, or don’t stay hidden very long. Oswald acted alone and 19 hijackers took down the twin towers. Actually, it’s ironic that people ignore the actual 9/11 conspiracy among the terrorists, and posit a hidden one amongst George Bush and his evil cronies. And so it is here that we are faced with the choice between Avery’s guilt and a bizarre cop/lawyer/judge/fbi conspiracy that doesn’t hold up to the slightest bit of scrutiny.

Let’s run through a few hypotheticals, shall we? First, there’s the very idea of the cops framing someone for murder. We are not talking about a rush to judgment and moving on a lack of evidence which clearly plagued the 1985 rape conviction. We are talking about taking aim at someone and fabricating or planting evidence that implicates that person. This is extraordinarily risky, not to mention mind-bogglingly stupid behavior for several reasons. For one, how can you be sure the subject of your frame doesn’t have an alibi? How can you be sure there isn’t evidence you haven’t found that might turn up pointing to someone else? Why risk a stable career with great benefits just to pin it on a guy you don’t like? Any one person in a comfortable position is capable of anything, I grant you that, but when you start suggesting that several people take these risks out of some mutual motive and mutual trust in each other’s ability to keep quiet, we should all take a breather. Would you put your career on the line in a criminal conspiracy that forces you to put ultimate trust in your coworkers, not to mention folks at the home office? We are led to believe that’s what happened here. The supposed motive is to shut down a massive lawsuit Avery brought against the town that wrongly put him away in the first place. As motives go, that’s a pretty good one, and is one of the reasons the doc is so convincing. But again, most of the people that would have needed to be involved in this conspiracy had no personal stake in the outcome. To use an extreme example, at one point in the case the prosecution, in order to counter the defense argument that Avery’s blood was planted in the car, sends a sample to an FBI lab to test for the presence of EDTA, a preservative found in vials of blood, particularly the vial of Avery’s blood the cops had access to from his previous case. Why on earth would they do this unless they knew the test would come back clean? It would not only risk the case, but bring the whole police department down with it. Was Prosecutor Ken Kratz in on the conspiracy? If so, was the FBI lab too? The test came back negative for EDTA and the defense was left arguing semantics over how conclusive the test was. Without going further, isn’t this the whole case? Unless the blood was planted from that vial, preserved with EDTA, it’s Avery’s blood and he did it. Did I mention he had a massive new cut on his right finger (blood was found near the ignition on the right side of the wheel) when he was arrested, caused by some “sharp object”? And while we are on this blood, how did the police even know to plant it? He was out of town when the car was found on his property and was arrested when he came back, with a massive bandage on his hand. How did the police know he cut himself? What if he had no cuts at all when they picked him up? How would they explain the planted blood then?

Unfortunately, it’s a relatively straightforward exercise to poke some pretty big holes in various elements of the frame up theory. If her bones were planted, why did they plant them in three spots (the fire pit, the burn barrel and the quarry) when one would have been more than enough. And how did they know whose bones they had, and that they matched the owner of the car they were planting? Did they kill and burn her just to frame him? Really? And much was made of her key being found on the third day of searching. Well, it must have been planted. But if you’re going to plant a key, why wait for the third day to do it? Officer Colburn to Officer Lenk – “why didn’t you plant the key today when you had the chance?”, Lenk – “that’s just what they’d be expecting me to do…mmmmhhhahahhahah!!”. Same goes for the bullet with Halbach DNA fired from Avery’s model of gun. And the cadaver dog that lit up near on the golf cart, the one that Brendan said he and Steven used to pick up stuff to throw on the fire after the murder, did the cops rub some bones on that for good measure? Huh?

You get the idea. Hop on reddit and you’ll find out how some thoughtful and some not so thoughtful people seek to explain away all this. “Cadaver dogs can be coerced by their handlers”; great, more people risking their careers to nail Avery, etc, etc. The thing you quickly realize is we are all susceptible to powerful propaganda, and it takes a deliberate effort to undo its effects. I’d say let’s step back and take a look at the whole picture before we decide Avery was framed. Avery, the guy who doused a cat with gas and threw it in a bonfire, the guy who raped his underage cousin, the guy who threatened another female cousin at gunpoint and masturbated on her car, the guy who beat and/or threatened to kill most of the significant women in his life, and the guy who disguised his identity and specifically requested Theresa be sent by her employer to his house the day she was killed, after she told coworkers she was “creeped out” when he answered the door dressed only in a towel on a previous visit. Maybe the jury and all the appeals courts that judged and denied him weren’t crazy, or in on the conspiracy. And maybe, just maybe, they got it right this time.

* The original article stated he was released in 2005.