Is it because I am a criminal lawyer that I have become obsessed with the latest online true-crime documentary, or is it the fact that the world has always been intrigued and fascinated by the drama of crime that has seen the Netflix series, ‘Making a Murderer’ stir up global interest, opinion and debate? Either way, I am hooked!

I consumed all 10 hours of the documentary in three days and chances are that like millions of others, you have done the same.

In brief, the series follows Steven Avery, from Wisconsin, USA who spent 18 years in prison for a violent sexual assault which it was later proved that he could not have committed. Upon his release, Avery filed a Civil Law Suit for $36 million against Manitowoc County (the area where he lived), its Sherriff and its District Attorney.

All appears to be going well for Avery, however what happens next shocked me and millions of others of viewers around the world. Avery is arrested once again and finds himself back behind bars within two years of his release, this time accused of the murder of Teresa Halbach. Avery and his nephew, Brendan Dassey, were both tried and convicted of the crime.

This 10 episode docu-series was the brainchild of graduate students Laura Ricciardi and Moira Demos. When they read about Avery they were compelled to document the trial. The series has generated mass publicity and prompted petitions to have Avery’s case reviewed.

As a viewer I was a melting pot of emotion ranging from anger and sadness to curiosity and frustration, but above all grateful. Grateful that I am part of a legal system in which I would like to think, would recognise that certain evidence that led to Avery’s conviction would not be admissible in a UK Court.

I am often asked by friends “so, do you think Stephen Avery is guilty?” The fact of the matter is that I don't know. Only Avery knows that; but in my opinion Stephen Avery should not have been found guilty in law.

The burden of proof in both English and Wisconsin criminal law is on the prosecution. They must prove guilt. The standard of proof is very high in that the prosecution must prove guilt beyond reasonable doubt. This means that if a Jury believes that the defendant may be guilty, is more than likely guilty or even probably guilty, that they must acquit. A person can only be guilty of an offence if the Crown can prove, so that a Jury is sure beyond a reasonable doubt that the defendant has committed it.

The true crime tale left many questions unanswered and in my opinion this creates doubt, and with such doubt the pragmatic lawyer in me questions whether Avery should have been convicted at all? Let me elaborate;

Firstly, there is Theresa Halbach's car. Why would Avery go to the endeavour of burning Halbach’s body only to leave her car intact on his land? Avery lived on a scrap metal yard and had access to an industrial car crusher. If he went to the effort and trouble of burning Halbach's body, why didn't he take the time and effort to also crush her car rather than leaving it in the poorly camouflaged state in which it was discovered?

Secondly, the lady who discovered the vehicle on Avery’s vast land located it in a very short amount of time. She was the only member of the search party who also (coincidentally perhaps) had a camera. This all came following the rather suspicious ‘911’ call from a police officer who (before the vehicle was discovered) called in quoting the vehicle registration number, make and model asking if that was the vehicle that he should be looking for. Had he discovered the vehicle at this point? Was it on Avery’s land at this point? I seem to recall that this officer was indeed also from the Manitwoc police department which at the time of course was the defendant in Avery’s civil suit.

Thirdly, Avery lived in a static caravan (or a ‘trailer’ for those across the pond) which was searched for seven days by trained police officers from neighbouring Camulet County (as of course Manitwoc officers should not have been involved in the investigation due to Avery’s previous wrongful conviction). No evidence was found during this extensive search. Then again, coincidentally perhaps, on the eighth day officers from Manitwoc County entered the trailer and all of a sudden Halbach’s car key is discovered on the floor! How did Camulet officers fail in discovery? Not long after the expelled Manitwoc officers entered the trailer the key was discovered by officers and this formed a large part of the case against Avery.

Let’s move onto DNA evidence, or should I say the lack of it. DNA evidence forms a vital part in many serious cases in English law. It can be found virtually everywhere, not least where by a violent and allegedly sexually motivated murder has taken place.

It was the State's case that Theresa Halbach had been murdered in Avery’s garage. Brendan Dassey however ‘confessed’ that actually Avery had killed Halbach in his bedroom and that she had been sexually assaulted before being killed. If either of these things had happened, one would assume that there would be a significant amount of blood and DNA at these locations. Indeed the expert witness who gave evidence at trial said that as an expert, he could not have carried out a “clean up job” as good as Avery would have had to, if he had indeed killed Halbach in either of these locations. This in itself raises doubt that Avery killed Halbach.

Watching Brendan Dassey’s confession was particularly emotive. I often represent vulnerable clients, so my sorrow, horror and shock when watching Dassey’s ‘interrogation’ struck a chord with me.

The persistent interviewing by officers which eventually led to his confession would not have happened in England or Wales. Dassey was repeatedly interrogated over several days alone. He had learning difficulties and in addition to having no legal representative or parent present, he was interviewed by experienced police officers without an intermediary (or Appropriate Adult as we call it here) in attendance. Dassey continually denied any knowledge of Halbach’s disappearance until he eventually confessed to being involved in her murder as he later revealed to his mother that the detectives “got to him”. Dassey was convicted on the basis that Halbach had been murdered in Avery’s bedroom. At Avery’s trial, it was the prosecutions case that she had been killed in the garage. Which was it?

In the documentary, viewers then saw a polystyrene box being brought out of archive, and placed on a table. It is clear for all to see that the tape which seals the box has been ripped open, and furthermore that the vial of blood has a pin prick hole in the top and has obviously been injected into. Why has this happened? Who has done this? For what purpose?

It was alleged in the documentary that the few tiny specks of Avery’s blood found in Halbach’s car could have come from this vial, but no traces of the substance which preserves blood in it’s liquid form was found in the vehicle. For me however this still does not sit right, and I still find the ‘tampered with’ blood very suspicious indeed.

In my opinion alone each one of these factors may not be enough to raise reasonable doubt, but together having considered them there is no question that in my mind I simply unsure that Avery was Theresa Halbach’s killer.

There are other things which the Jury would have placed emphasis on. The fact that Avery did not give evidence, that he was the last person to see Theresa Halbach alive, the fact that her bones were found on his land, and the fact that whilst Avery’s defence team can could challenge the prosecution case on Avery’s behalf,, they can not give evidence, an explanation or an account on his behalf or for him.

Making a Murderer makes for compelling viewing, the world is talking about it and asking “do you think Stephen Avery killed Theresa Halbach?” My answer would be that had I been on the jury, I would have had a doubt as to whether or not he did and therefore would have not been able to convict him of murder. However, only one living person knows for sure whether Stephen Avery killed Theresa Hallbach and that’s Avery himself.

 

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