Scene of the crime
Could ‘Making a Murderer: Part 2’ get the conviction of Steven Avery overturned, asks Chris Harvey.
Could ‘Making a Murderer: Part 2’ get a conviction overturned?
‘I’d bet my life on Steven Avery being innocent. I’m positive he’s innocent. The question is, can we prove it.” So enters defence lawyer Kathleen Zellner — black hair, long fingernails and Midwest drawl — into series two of the true crime TV sensation Making a Murderer.
Zellner, 61, has overturned more convictions than any other attorney in the US, but she has a job on her hands. Back in December 2015, when Netflix released the original 10-part documentary about the arrest and conviction of Avery and his nephew, Brendan Dassey, the pair had already been in jail for eight-and-a-half years, for the 2005 murder of 25-year-old photographer Teresa Halbach.
The series had been 10 years in the making. It documented the case as it progressed to separate trials, where multiple strands of DNA evidence against Avery and a lurid confession from Dassey were enough to convince their respective juries to convict them. Both were sentenced to life imprisonment, Avery with no possibility of parole.
Shortly after Avery’s arrest, a singular detail about the case had attracted film-makers Moira Demos and Laura Ricciardi, both in their 30s and still at film school. Avery had been the victim of an earlier wrongful conviction, and had served 18 years in jail for a violent sexual assault, before advances in DNA profiling had exonerated him.
“We were taking a train up to Moira’s parents the day before Thanksgiving in 2005,” says Ricciardi, when I meet her and Demos in London. “We picked up the New York Times and Steven was on the front page.” They recognised that “there were at least allegations of a conflict of interest that we thought was an interesting complication in a story like this”. Avery was involved in a legal suit against the police department that had arrested him, and the film-makers realised that, “Steven’s unique status as someone who had been failed by the system and found himself back in it” had the makings of a good story.
“A lot of what we were documenting was this question of history potentially repeating itself,” says Demos.
Both were changing careers. Ricciardi had been a lawyer herself, Demos an editor in film and television. They made a decision to move to Wisconsin to follow the case. After 18 months, during which time they had recorded interviews with Avery and Dassey and their families, and filmed each man’s trial, they realised that their original idea for a feature-length documentary would not do justice to the material they had. There were limited outlets for a long-form non-fiction series, but the prospect of “putting it in a shoebox and not sharing it, ever” was not something they wanted to contemplate.
“We really felt a tremendous responsibility . . . we owed it to our subjects.”
In fact, they had to wait for Netflix to begin producing its own original content for the chance to tell the story as they wanted to.
And what a story it was. In Avery’s trial, his defence team had argued their client had been framed by Manitowoc County detectives, possibly in retaliation for a US$36 million ($55.2m) civil suit against the county for his earlier wrongful conviction. Troubling details had emerged, such as the fact that a patrol officer had phoned the police dispatcher to trace the registration number of a car, which turned out to be Halbach’s missing vehicle, two days before it was found at the Avery family’s breaker’s yard, suggesting the officer was looking at the car when he called it in — though he later denied this in court.
Another vital piece of evidence — a key to Halbach’s car — had also been found in plain view on the floor of Avery’s trailer by a Manitowoc County detective, although the property had already been searched six times. Prosecutor Ken Kratz claimed in court that it did not affect the case if the key had been planted.
“Oh yeah, it matters,” says Zellner in the new series, “because the whole case can collapse on one piece of evidence”.
Meanwhile, Dassey, who was 16 years old at the time, and has an IQ in the low 70s, was interrogated by detectives four times without a lawyer or appropriate adult present. Later, he told his mother he had “guessed” the answers to their