Wisconsin Innocence Project Mulls Avery Case 9 Years Too Late

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Image Source: Netflix

January 5, 2016; WISC-TV (Madison, WI)

It’s the case that everyone is talking about for all the right reasons. By now, you have likely seen or heard about Making a Murderer, the unprecedented 10-hour documentary on Netflix that showcases what it’s like to be on trial in America and what it takes to defend an accused person. While the filmmakers intended to start a discussion about the adequacy of the justice system, many viewers instead came away with a singular sense of purpose: helping Steven Avery and his nephew Brendan Dassey out of prison.

This is a very complicated case, and we urge readers to review the documentary and transcripts in their entirety to understand how Steven Avery has captured international attention. In short, after having been wrongfully convicted of a sexual assault in 1985 and serving 18 years in prison, Steven Avery could potentially have been wrongfully convicted a second time for the murder of 25-year-old Teresa Halbach, a photographer, in 2007. In Avery’s defense, as portrayed in the documentary, there is compelling evidence he was framed for the murder by some of the disgruntled police officers who helped wrongfully convict him in the rape case.

The reality of the situation for many viewers has been too much to bear. Avery has been in prison now—potentially wrongfully convicted—for almost nine years, in addition to the 18 years from his first conviction. He has exhausted his post-conviction appeals but still has the possibility of a federal habeas corpus petition and U.S. Supreme Court appeal. However, it’s quite possible he will spend the rest of his life in prison. Since the documentary was released, two jurors have also come forward, one of who insists he or she was “intimidated” into voting “guilty” for fear of his or her safety.

In these moments, the country has turned to the Wisconsin Innocence Project (WIP), part of the University of Wisconsin Law School, which helped overturn Avery’s initial 1985 conviction for rape by testing the DNA in the case. The DNA did not match Avery, but matched another criminal in the CODIS database, proving that he did not commit the rape for which he served 18 years. It was a major victory for the WIP, as is every exoneration. However, since Avery’s conviction in Halbach’s murder, the WIP has largely turned their backs on Avery. On its website, where it lists its exonerees, the WIP tries to distance itself from Avery’s case: “In 2007, Steven Avery was convicted of murdering 25-year-old Theresa Halbach and sentenced to life in prison. The Wisconsin Innocence Project did not represent him in that case.” The documentary notes that despite Avery’s repeated appeals to take on his case, the WIP has refused for the last nine years, until now.

For the first time since Avery’s conviction, the WIP’s founder Keith Findley has said he is talking to Avery’s attorneys, who valiantly represented him in trial, and thinks it’s possible the case can be re-opened if there is evidence of juror misconduct.

As is to be expected, WIP has inspired the ire of the Internet, particularly because an overwhelming number of people have come away from the documentary believing at the very least Avery was wrongfully convicted. Understandably, Avery’s case is any wrongful conviction center’s worst nightmare: to exonerate a client only for him to be accused and convicted of murder. Largely relying on individual and private donations, the WIP and most nonprofit organizations would want to protect the integrity of its brand.

But it shouldn’t have taken the release of a documentary eight years later to make the organization reconsider if it should have heeded Avery’s calls for help. Reading the transcript of the trial, there are several points where one will find serious lapses of justice, such as the use of discredited scientific tests and testimony. While the Innocence Project has certain criteria that have to be fulfilled before taking a case, namely whether the defendant can be exonerated through DNA evidence, were those justifications for refusing to consider his case, or was it the publicity? If it was for publicity, should the possibility of losing donations supersede the mission of the organization?

The American Civil Liberties Union faced a similar organizational dilemma in the ’70s when it took on the defense of a group of Neo-Nazis who wanted to march through a neighborhood in Skokie, Illinois, comprising a significant proportion of Holocaust survivors. Donors were outraged. According to David Goldberger, the legal director of the Illinois ACLU at the time, the overall organization lost close to 25 percent of its overall membership. In Illinois, 2,000 of the 8,000 ACLU members resigned because the organization stayed true to its mission: protecting Americans’ civil rights despite the heinousness of their ideas.

However, the WIP’s decision not to review Avery’s case cannot be viewed in a vacuum. It should be noted that the documentary does not include every detail and facet of the case, as would be difficult to do. The WIP likely felt similarly to the rest of Wisconsin when Avery was accused and convicted of murder—that he was guilty.

At this point, Avery would surely appreciate any help he can receive. Whether there is anything anyone can do is another story. Many have signed petitions asking President Barack Obama to pardon Avery, but the president does not have the authority to do so. The only person that can pardon Avery is Scott Walker, the governor of Wisconsin, who has refused. There is also a high burden to prove juror misconduct and none of the recent revelations from this week would meet those requirements at this time. Could Avery’s appeals have been successfully litigated had he the aid of experienced attorneys that helped him before?—Shafaq Hasan

  • reverse echo

    I feel like the only person who understands that the Innocence Project (it’s right there in the name) is in the business of freeing innocent people. If they made the determination that the case for his innocence wasn’t strong enough is it not obvious why they didn’t take it on? They are not the Prosecutorial Misconduct Project – maybe all of their keyboard critics can get that project started.

    Headlines like this are the reason that people went straight from not knowing IP existed to criticizing them, skipping the part where you thank them for freeing Avery the first time and the part where you donate to support their mission.

    • btnelson

      Seriously? How can anyone believe that Steven Avery is guilty? Oh sure, he’s going to keep the car key in his pocket (or wherever). Every piece of evidence seems pretty clearly planted. His trailer was searched before they came back to magically find the key. And for sure he would just leave her car on his property. And he didn’t have any history of violence except for the cases when someone else was harassing him. I know the cat thing was pretty sick but it did not seem characteristic of him. He didn’t have any history of torturing animals beyond that. Kids who torture animals grow up doing it. IF his case doesn’t meet the criteria for the IP it seems that they should be supporting the case for an in depth investigation but this is just sick! I hope that whole law enforcement department rots in hell and hopefully they will get what they deserve.

  • Graeme

    A typo here. The juror says they were coerced into voting ‘guilty’. Not ‘not guilty’!

    • Shafaq Hasan

      Thank you for pointing this out to us! The error has been fixed.

  • Stacia Robbins Hausler

    I tried watching the documentary “Making a Murderer” and got to the 4th episode and had to stop because I am literally crying my eyes out as if I just buried a loved one.

    I was so deeply disturbed by the atrocities that were committed within our own legal system related to this case, and the tactics that investigators used to get this baby, yes he was a baby at the time, that I was screaming at the tv! I can see how this case got so far out into the weeds that it scares me to be a citizen in the United States. Besides all of that…who the hell thought it was a good idea to allow this 16 year old kid with a 73% IQ level be interrogated by two grown men that he obviously saw as authority figures? They obviously didn’t give a DAMN how little evidence they had on this kid, and simply led him down the yellow brick road into a life time of hell. I pray that KARMA is a bigger bitch than I am and becomes the boomerang for them; so that they see one of their own loved owns penned up like the penned Brenden up. SHAME ON YOU!!!!
    I have personally seen first hand how defense attorney’s and prosecutors play the game “Lets Make a Deal” with our freedom. My own sister in law, ignorant to her own rights and the laws, was convinced by her attorney to plea no contest to a felony charge of which she absolutely did not commit! The reason? Her defense attorney just so happened to be friends with the DA that was prosecuting her case and didn’t want this friend to look bad in front of his peers, so he had his naive client take the fall to save his friends ass… think it doesn’t happen…you are WRONG!!!

    • Bob G

      I’m always skeptical about shows which are made for television. In this case where the interviews were actually filmed, their were clear ethics and legal violations throughout right up through and including the judge.

      If it weren’t for the actual interview and courtroom film footage I would suspect this was nothing more than a fictional account made on a Hollywood set.

      F. Lee Baily once said; Guilt or Innocence has little to do with the outcome of a trial….and he’s so right!