Prosecutor on 'Making a Murderer': "I think they went overboard"

Alison Bowen
Chicago Tribune (TNS)

Wisconsin prosecutor Michael Griesbach believes Steven Avery was wrongly convicted — but you may disagree on how many times.

Making a Murderer

Cast: Steven Avery, Danielle Ricciardi, Laura Ricciardi
Network: Netflix
Air date: 2015-12-18

Wisconsin prosecutor Michael Griesbach believes Steven Avery was wrongly convicted — but you may disagree on how many times.

Many viewers finished the final episode of Netflix documentary “Making a Murderer” feeling aghast, angry. The documentary tracks the initial 1985 wrongful conviction of Avery, who spent 18 years in prison for a sexual assault that DNA evidence later proved he didn’t commit. A few years after his exoneration, he was arrested again, this time for the 2005 murder of 25-year-old Teresa Halbach.

Warning, spoilers ahead.

Avery was convicted of Halbach’s murder in 2007 and remains in jail. Earlier this month, he asked to be released on bond, filing an appeal claiming an improper warrant and that a juror was out to get him, The Associated Press reported.

Griesbach wrote “The Innocent Killer” for the Chicago-based Ankerwycke, a publishing imprint of the American Bar Association. The book tracks the Avery case, from wrongful conviction to his eventual conviction and imprisonment for the Halbach killing. Griesbach appears in the documentary’s first episode, surprised by a former prosecutor’s reaction to the exoneration.

Now, Griesbach is a prosecutor in Manitowoc County, where the events occurred. And he is sure Avery was innocent one time.

“Lightning did not strike twice,” he said.

He hopes the case will inform citizens and law students alike about the criminal justice system. He appears on panel discussions on wrongful convictions, even crossing paths with Dean Strang, Avery’s former lawyer and now online celebrity due to the documentary. As Griesbach pointed out, Wisconsin is a small world.

This interview has been edited and condensed for space.

Q: What’s it like to see a case you wrote about explode in popularity?

A: It’s very strange. Part of (the filmmakers’) mission I feel like I share, in terms of drawing attention to some issues in the criminal justice system. What’s interesting is they say, correctly, that truth is elusive in the Steven Avery case. And it really is. (But) they sort of adopt what they believe to be the truth. And they present it as the truth. And the disturbing part is they don’t present it even close to thoroughly. And I understand that TV, and dramatic portrayals, you’re going to approach it with a specific angle. But I think they went overboard.

(For example), they didn’t include very much of, if any, the cross-examination by the prosecution and the rebuttal. That’s the time when evidence is really tested on both sides. They call that in the law, the truth-seeking engine.

Q: Many viewers who watch the documentary finish it feeling Avery was wrongfully convicted twice, not once. What do you think was left out, if anything?

A: There were bleach stains on (Avery’s nephew and also convicted in the murder) Brendan Dassey’s blue jeans. People are wondering if there’s a gruesome murder there, where’s the blood, where’s the hair? And Avery and Dassey, especially Avery I think, had a week to clean things up. That there’s bleach on his pants is pretty telling, at least something that should be included, for viewers to at least know.

They refer back to this cat burning. What they don’t tell you, (Avery) was 22, first of all, he wasn’t just a kid. They make it sound like it was just sort of horse-playing with some friends, that the cat got accidentally dropped in the fire. But in fact, Steven Avery doused the cat with gasoline and intentionally threw it in the fire. It’s pretty disturbing stuff.

They portray this incident when he rammed his pickup truck (into a woman’s car). And then he did approach her at rifle-point, they included that. (But) they portrayed it as nothing more than Steven Avery being upset at this woman because she was spreading rumors about him and his family. Now, for the rest of the story. (According to court documents,) he had been stalking, well, observing her down the road with binoculars as she got into her car early in the morning. He even ran into the road naked one time. This is one disturbed guy. That incident was very different than how it was portrayed.

Q: You write in a Wisconsin law journal that Avery bears responsibility for Halbach’s death. What convinces you?

A: All those viewers, they only know what’s in the documentary. They don’t have any other information about the Avery case. So you watch that, you’re thinking lighting struck twice, he was wrongly convicted again. I totally get that, how if you knew nothing else about the case you would be absolutely convinced that he was wrongly convicted a second time.

Back up and look at the basics. He’s the last one to see her; specifically he asks her to come there. Then, you have his blood, and I guess they’re saying it’s planted, and I can see why people believe that after only seeing these facts. But you have to believe a lot of stuff. His blood’s in her car. Her blood’s in her car. His DNA is on her key, in his bedroom. All those things as a prosecutor, usually when I have a case with that kind of strong both physical evidence and circumstantial evidence, it’s the kind of case that guilt is just so obvious. It’s an incredibly strong case for the prosecution.

Q: Many viewers are troubled that some of the main physical evidence was found by Manitowoc County officers.

A: (That was) some really bad judgment, in retrospect especially, but even at the time. They should have entirely removed themselves from anything having to do with the case.

Q: Upsetting to a lot of people is the confession of Dassey (a developmentally disabled teenager interviewed under what many call coercive interrogation techniques).

A: That was legitimately troubling to a lot of people. Those interrogation techniques that police use, those are the same techniques that are used all across the country. The whole thing assumes guilt, and then it’s designed to elicit a confession instead of objectively designed to elicit the truth, or what happened. So that’s problematic right off the top.

Q: What do prosecutors take into account about someone’s developmental abilities in these kinds of situations?

A: I’ll be honest. If we have a confession, we assume it’s the truth. (And) 99.9 percent of the time, the confession is true. We’re supposed to do justice. So if we have even a hint that we don’t believe that the confession is legitimate, we’ve got to back away. But I’ve never come across a case where the confession is false — 99.9 percent of people don’t generally confess to something they didn’t do.

If we’re convinced that the evidence shows some guilt, we have a confession, what are we supposed to do, ignore our best evidence? If so much other evidence points to guilt, I don’t think it’s our job to say, “We’re not going to believe that confession.”

Q: You hope people can learn lessons from this case, both citizens and attorneys. Talk about following evidence versus gut instinct during investigations.

A: The whole job of police investigations would be to follow the evidence wherever it leads. And that’s exactly what did not happen in the first Avery case. In fact, it was worse than that. This wasn’t one of the wrongful convictions that happened by mistake. Within a couple days of arresting Steven Avery, evidence suggests that they not only knew he didn’t do it, but they knew who did do it. And that’s pretty scary stuff.

(In the Halbach case), it wasn’t unreasonable to at least have a suspicion that Steven Avery, to have him as the most likely suspect. He’s the guy who called her. He’s the guy who was the last person known to see her alive.

Q: What do you think of everything coming out now — a juror saying he felt threatened, a new attorney for Avery. Are there any open questions, do you think, for the future?

A: I don’t think the juror thing’s going anywhere. That is troubling, that maybe there was some intimidation. But maybe there was, maybe there wasn’t, I don’t think that’s enough for a new trial. (The court proceedings surrounding) Dassey’s confession, that’ll be really interesting to see how that goes.

I wouldn’t be surprised if there’s a filing for a new trial. I guess we’ll just have to wait and see.

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