City Life

Reporters have interesting perspective on Steven Avery trial

What sets them apart from the countless others who've weighed in on the case is that each journalist also graduated from law school

By now almost everyone, including actors Alec Baldwin and Mia Farrow, has voiced their opinion on "Making a Murderer" and whether Steven Avery was guilty of the crime he was convicted of—or framed for, as the blockbuster Netflix series suggests.

But there are three people with a unique perspective that we haven't heard from. At least not together.

So, as the popularity of "Making a Murderer" continues to reverberate—and with the possibility of more courtroom drama in the Teresa Halbach murder case looming—let's hear what these three have to say.

I covered the 2007 Avery murder trial as well as Avery's exoneration four years earlier in a sexual assault case for the Milwaukee Journal Sentinel.

You may recall that the Wisconsin Innocence Project, based at the University Project, based at the University of Wisconsin–Madison law school, freed Avery from prison after 18 years based on new DNA evidence proving that another man had committed that sexual assault, which occurred in Manitowoc County in 1985.

Among the reporters who covered the murder trial with me were three who have an exceptional qualification in addition to journalism experience: a law degree. That's why we want to hear from them.

They are:

Colleen Henry (Marquette University Law School), a longtime reporter with WISN-TV in Milwaukee.

Aaron Keller (University of New Hampshire Law), who was a reporter with WGBA-TV in Green Bay during the trial. He is now an English and communications professor at NHTI-Concord Community College in New Hampshire.

And Dan O'Donnell (UW–Madison Law), who was a reporter with WTMJ radio in Milwaukee during the trial. He is now a news anchor and conservative talk show host with WISN radio in Milwaukee.

Henry and O'Donnell had their law degrees before the Avery trial; Keller earned his later.

All three agreed to take some questions from me. 

Before we jump in, a quick primer: 

Halbach, a 25-year-old photographer, went missing on Halloween in 2005. She was last seen alive with Avery outside of his trailer home in Manitowoc County. DNA evidence, ironically, was the strongest link tying Avery to Halbach's murder. But Avery's lawyers argued that Manitowoc County sheriff's deputies planted blood and other evidence to frame Avery because he was suing the county for $36 million over his wrongful conviction in the sexual assault.

In separate trials, both Avery and his then-teenage nephew, Brendan Dassey, were found guilty and sentenced to life in prison. The main evidence against Dassey was his confession, which his new lawyers argue was coerced. Avery also has a new lawyer, and both he and Dassey are hoping to win the right to another day in court sometime in 2016.

Opening Questions

Let's get this one out of the way first: Do you think Avery was guilty?

"Avery is absolutely guilty," says O'Donnell, who produced a 10-part "Rebutting a Murderer" podcast series that takes on the framing theory. 

O'Donnell is no longer a news reporter. But Henry is, so, understandably, she wouldn't offer an opinion, though she did tell me: "As for the verdict, I thought it could have gone either way. By the time they began deliberating, I wasn't surprised the jury convicted." 

Even though he's out of journalism, Keller (dubbed the "Silver Fox" after "Making a Murderer" aired) also didn't think it was appropriate to state an opinion on the verdict

One of the most controversial parts of the Halbach case occurred long before the verdict was handed down. It was a news conference, carried on live television in Wisconsin, called by special prosecutor Ken Kratz several months after the murder. Kratz, who prosecuted both Avery and Dassey, laid out lurid details of the murder that Dassey had purportedly confessed to. The news conference raised the question of whether it was possible to get impartial jurors from Manitowoc County.

Was it OK for Kratz to hold that news conference?

Keller was troubled by Kratz's legal ethics; O'Donnell was not.

"In Kratz's view at the time, he could engineer a heinously detailed criminal complaint, verbally repeat it at a news conference and skate past the general prohibition against lawyers tainting a jury pool," says Keller. "The legal community should examine this issue further in light of the public unease with this case."

Says O'Donnell: "Yes, it was OK. Just as it was OK that Avery was telling anyone who would listen that the Manitowoc County sheriff's department had framed him, even though he had literally no evidence to back that up."

Issues of Fairness

Another controversial part of the series was the conduct of Dassey's first lawyer, Len Kachinsky—including his decision to allow Dassey to be interrogated alone by investigators for the prosecution.

"Making a Murderer" portrays Kachinsky as virtually incompetent—is that portrayal accurate?

Kachinsky—who was taken off the case after a judge learned that Dassey was interrogated without Kachinsky being present—"was doing everything that he felt was in the best interest of his client," O'Donnell argues. "Namely, to take a plea deal that would have likely resulted in Dassey being released from prison at age 36." 

Henry also says that Dassey would have stood a chance of getting out on parole sooner if he had pleaded guilty rather than going to trial. But as for Kachinsky's allowing Dassey to be interrogated alone by the prosecuting investigators, she says: "Most lawyers I know would have been there if investigators were interviewing/interrogating their juvenile client in a homicide case." She adds: "I have never seen anything like the video of Kachinsky's investigator, Michael O'Kelly, asking Dassey to confess and to include drawings." 

One contrast between the series and the Avery trial is that so many viewers of the series believe Avery was framed, while there was no strong public reaction to that effect after the trial. 

Why was the reaction to the framing theory stronger after "Making a Murderer"?

Henry said she couldn't recall a case in which the defense "had better evidence of a setup." But as the six-week-long Avery trial progressed, she says, "The other evidence came in, the scale tipped." 

O'Donnell repeated a common criticism of the series, saying it presented evidence from only the defense point of view.

Keller offered a more detailed assessment.

"The Avery and Dassey trials occurred in a different time. The anti-government/anti-police narrative is stronger now than it was then," he says.

"The decision to acquit would have been a message from a Manitowoc County jury that its own sheriff's department was corrupt. Kratz might as well have asked Wisconsinites to state that the Green Bay Packers are a lousy football team."

Keller also points out that the filmmakers "had the benefit of weaving a story after all the evidence had come out. We in the daily press were chipping away at the facts as they unfolded over a year and a half. The film compresses the time frame and therefore the frame-up narrative was more compelling."

Verdicts on the Series

OK, so what should "Making a Murderer" viewers take away from the series?

Henry: "I hope viewers saw the fragility of the system. The framework for American criminal justice is sound, but it's applied by human beings with strengths, weaknesses, biases and overwhelming caseloads. What I find particularly interesting is the dichotomy between the quality of Avery's and Dassey's defenses. Ironically, it was Avery who was quoted as saying poor people don't get justice. He had one of the best defense teams money can buy. Dassey, on the other hand, had court-appointed counsel early on, who put him in a difficult posture moving forward."

Keller: "The film raises serious questions about whether the black-letter law is out of line with public morality. The public and the legal community could benefit from an even-tempered exchange about such matters.

"A full media history of the case would be worthwhile. We did the best we could to fairly cover a complex, twisted story. I doubt any great author could weave a tale so convoluted and so vexing as this one."

O'Donnell: "Cases aren't litigated on Netflix, and watching a TV show neither makes viewers a detective nor an attorney. Before they get on Reddit and try to crack the case from their living room, they might want to stop and actually consider the source of the information that they are being fed and question whether there is another side to the story that is being wholly ignored. ‘Making a Murderer' wholly ignored an entire side of the story and, in so doing, unfairly called into question the integrity of sheriff's deputies, their department and their entire county."

O'Donnell continues: "There very well could be problems with the criminal justice system, but this series doesn't expose them. This series exposes only the injustice of agenda-driven narrative journalism." 

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