This Ruthless World

Adventures in absurdity

Steven Avery’s Prosecutor Fights Back, Proving He Was Portrayed Fairly

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Not Ken Kratz

If you haven’t seen Netflix’s ten-part documentary, Making a Murderer, about a man who spent eighteen years behind bars for a crime he didn’t commit, and was later very likely framed for another crime, go see it now.  Have plenty of liquor and cute bunny pictures on hand; you are going to need both.  It is one of the most affecting documentaries of all time and a wholly infuriating look at the American criminal justice system.

If you have seen it, then you probably won’t be surprised to learn that the prosecutor in Steven Avery’s and Brendan Dassey’s trials for the murder of Teresa Halbach, Ken Kratz, has come to know the wrath of the Internet (the usual: furious Yelp reviews, harassing e-mails, death threats, and so forth).  And so, The Kratz is fighting back.  

My favorite response by America’s most hated high tenor is 9 Reasons Steven Avery Is Guilty 9 Reasons Ken Kratz Is Full Of Shit, an e-mail he sent to The Wrap, setting the record even straighter than it already was.

There is something very important that needs to be said before I get to The Kratz’s “reasons”.  First and foremost, the issues presented in the documentary go so far beyond the question of guilt or innocence, it doesn’t even matter, truly, whether Steven Avery did it or not. It may sound horrible, I know, but at this point, it makes no difference whether Steven Avery is guilty.  His conviction is so irretrievably tainted by blatant fabrication, law enforcement and prosecutorial misconduct, judicial rubber-stamping, and the system’s utter refusal to police itself, that it cannot possibly be seen as legitimate;  if justice really is to be served in this case, Steven Avery has to walk — even if he did it. This case is not a whodunit; it’s an indictment of the criminal justice system, at least as it exists in Wisconsin, though I’m sure the flaws aren’t limited to that state.

There is a profound dishonesty in Kratz’s approach even to defending himself here.  It brings to mind that part of Avery’s defense attorneys’ opening statement that dealt with the police framing who they believe is a guilty man.  Kratz would have us believe that as long as Steven Avery is the murderer, none of the appalling things in his prosecution that unquestionably happened should matter.  In other words, that yes, it is okay to frame a guilty man.  He denies any misconduct, of course, but he also broadly suggests that there is no such thing as withholding justice from a man who is guilty.  This is not surprising.  This is a prosecutor who made comments at the trial to the effect that innocent people don’t seek to enforce their rights. (He’s also a prosecutor who clearly doesn’t understand how the burden of proof works in criminal cases; sadly, most jurors don’t either.)

Maybe Steven Avery did it.  Maybe someone else did it.  Thanks to Kratz and his colleagues, we will never know that now, will we?

Second, I find it curious that Kratz doesn’t mention Brendan Dassey, the defendant who is almost certainly innocent. Dassey’s case was piggy-backed on his uncle’s, and yet, the same prosecutor presented a wildly different story of how the crime supposedly occurred at Dassey’s trial — and a wholly implausible one at that.  Not one piece of physical evidence ties Dassey to the alleged scene of the crime; and his “confession” is a sick joke.

Lastly, although I am not sure The Wrap posted Kratz’s e-mail in its entirety, the former prosecutor seems to be playing fast-and-loose with the word “evidence”.  I don’t want to get into the nitty-gritty of the Wisconsin Rules of Evidence (which I have looked at), but almost none of what Katz lists in his e-mail would be admissible in the normal world, and if Judge Willis actually allowed all that stuff into the trial, then the mess is even worse than I thought.

Anyway, let’s look at what Kratz has to say:

Examples for you to consider:

1. Avery’s past incident with a cat was not “goofing around”.  He soaked his cat in gasoline or oil, and put it on a fire to watch it suffer.

With very narrow exceptions, you can’t invoke unrelated bad acts as proof of other bad acts.  It’s bootstrapping.  It appeals to analytical laziness.  You can’t prove that the defendant committed Act B by proving that at some other time, he committed Act A.  It’s kind of like if I were to argue that, for instance, since Ken Kratz is a piece o’shit who used his authority to pressure crime victims into having sex with him, hey, maybe he killed Teresa Halbach.  After all, he wasn’t goofing around either.  Incidentally, does he have an alibi for the night of October 31, 2005?  See how that works?

2.  Avery targeted Teresa.  On Oct 31 (8:12 am) he called AutoTrader magazine and asked them to send “that same girl who was here last time.”  On Oct 10, Teresa had been to the Avery property when Steve answered the door just wearing a towel.  She said she would not go back because she was scared of him (obviously).  Avery used a fake name and fake # (his sister’s) giving those to the AutoTrader receptionist, to trick Teresa into coming.

Hearsay is the problem here.  There is a good reason why courts are not supposed to permit hearsay evidence and limit a witness’ characterization of someone else’s mental state.  It’s fundamentally unreliable.  I’m not sure I would be scared per se, if a man answered the door in a towel.  Creeped out, annoyed, uncomfortable, sure.  Scared?  On the basis of that one incident? That’s a bit excessive.  So did Teresa Halbach actually say she was “scared”?  Who did she say it to?  Or maybe she used a different word, and the person who heard it, later, in retrospect, interpreted it as fear?  This is pretty thin stuff, and so susceptible to interpretation as to be worthless.  Its only significance is to put the victim at Avery’s salvage yard on the day of the murder.

3. Teresa’s phone, camera and PDA were found 20 ft from Avery’s door, burned in his barrel.  Why did the documentary not tell the viewers the contents of her purse were in his burn barrel, just north of the front door of his trailer?

Found by whom?  Calumet and Manitowoc Counties’ processing of the crime scene was completely unprofessional and extremely suspicious.  Whoever planted other evidence at Avery’s property would have planted those items as well.

4.  While in prison, Avery told another inmate of his intent to build a “torture chamber” so he could rape, torture and kill young women when he was released.  He even drew a diagram.  Another  inmate was told by Avery that the way to get rid of a body is to “burn it”…heat destroys DNA.

More hearsay.  We don’t even know whether this conversation took place, or whether it was concocted in the fevered imagination of the same cops who got Brendan Dassey to “confess” and fed to the inmate in question in the like manner, in exchange for TV privileges or something.  Assuming it did take place, we don’t know the particulars.  Was it a sincere discussion, or just some tough talk in the prison environment?  Did Avery actually say all those things, or did he just nod approvingly at someone else saying them?  And the disconnected comment about the best way to get rid of a body is something that can be said by anyone in discussing crime.

5. The victim’s bones in the firepit were “intertwined” with the steel belts, left over from the car tires Avery threw on the fire to burn, as described by Dassey.  That WAS where her bones were burned!  Suggesting that some human bones found elsewhere (never identified as Teresa’s) were from this murder was NEVER established.

6.  Also found in the fire pit was Teresa’s tooth (ID’d through dental records), a rivet from the “Daisy Fuentes” jeans she was wearing that day, and the tools used by Avery to chop up her bones during the fire.

Lest we forget, the investigators destroyed the crime scene.  The protocol was to call the state Crime Lab and have specially trained professionals properly process and photograph the scene.  Instead, Calumet County law enforcement simply shoveled debris from Avery’s burn pit into boxes and then had people not trained to process crime scenes analyze the fragments.  The Crime Lab got involved very late in the investigation and only on limited issues.  Frankly, I cannot think of any reason cops would destroy a crime scene that doesn’t involve nefarious motives.  As a result, any statement about what was intertwined with what and what was found where, coming from Kratz, is completely lacking in credibility.

7.  Phone records show 3 calls from Avery to Teresa’s cell phone on Oct 31.  One at 2:24, and one at 2:35–both calls Avery uses the *67 feature so Teresa doesn’t know it him…both placed before she arrives.  Then one last call at 4:35 pm, without the *67 feature.  Avery first believes he can simply say she never showed up (his original defense), so tries to establish the alibi call after she’s already been there, hence the 4:35 call.  She will never answer of course, so he doesn’t need the *67 feature for that last call.

I will concede this is relevant and probative — but it is neither sufficient to prove he killed her, nor does it cancel out the apparent fabrication by investigators and the prosecution.

8. Avery’s DNA (not blood) was on the victim’s hood latch (under her hood in her hidden SUV).  The SUV was at the crime lab since 11/5…how did his DNA get under the hood if Avery never touched her car?  Do the cops have a vial of Avery’s sweat to “plant” under the hood?

You don’t need a vial of sweat.  You just need a dirty sock.  Which the investigators had access to.

9. Ballistics said the bullet found in the garage was fired by Avery’s rifle, which was in a police evidence locker since 11/6…if the cops planted the bullet, how did they get one fired from HIS gun?  This rifle, hanging over Aver’s bed, is the source of the bullet found in the garage, with Teresa’s DNA on it.  The bullet had to be fired BEFORE 11/5—did the cops borrow his gun, fire a bullet, recover the bullet before planting the SUV, then hang on to the bullet for 4 months in case they need to plant it 4 months later???

There were bullets from Avery’s rifle all over the property.  Besides, I don’t see why it had to be fired before 11/5 — the investigators held on to Avery’s property for 8 days, and could have fired it then.  What’s crucial is that had Teresa Halbach been shot in the garage, there would be lots of blood everywhere.   There was no DNA from the victim in the garage.    (In fact, there was no DNA from her anywhere in Avery’s trailer — not even on the Toyota key that magically turned up when Manitowoc County cops showed up at the trailer.)  The garage was full of junk; it would have been impossible for Avery to wipe it all clean.  Even the far-fetched theory that he might have done so anyway is disproved by the fact that his DNA was found in the garage.  Plus, there is the fact that the bullet fragment was not found on the initial search and only magically turned up later, but that’s just gravy.

There is more of course.  But I’m not a DA anymore.  I have no duty to show what nonsense the “planting” defense is, or why the documentary makers didn’t provide these uncontested facts to the audience.  You see, these facts are inconsistent with the claim that these men were framed—you don’t want to muddy up a perfectly good conspiracy movie with what actually happened, and certainly not provide the audience with the EVIDENCE the jury considered to reject that claim.

Oh yeah, there’s more “evidence”.

Like the fact that Steven Avery looked at nudie pictures.  That’s some powerful evidence!  I mean, what can we possibly expect of a man who (gasp!) looks at porn?

Or the fact, from the same breathless OnMilwaukee article, that Avery had leg irons in his possession that he claimed he was using with his girlfriend consensually.  Of course, those leg irons didn’t have any DNA from the victim on them – and “he must have wiped them clean” isn’t actually evidence — and it looks like the investigators were just making shit up as they were going along (“oh look, bondage stuff!  Let’s say he cuffed her to the bed because why not”) — but still!

Or the fact that Avery was once arrested for an “altercation” with his girlfriend, and ordered to pay a fine and stay away from her for 72 hours.  Which makes him an asshole, I guess.  But not as bad an asshole as a certain prosecutor who used his prosecutorial office to pressure and intimidate three women, at least one of whom was a victim of a violent crime.  Hmm.  As criming assholery goes, I think the evidence is stronger that maybe Kratz killed Teresa Halbach.  Just asking questions! “Evidence” is iffy that way, you see.

Or unverifiable bootstrapping shit from Kratz’s blunderbuss filings and newspaper articles with their anonymous sources.

Finally, I engaged in deplorable behavior, sending suggestive text messages to a crime victim in Oct 2009.  I reported myself to the OLR.

That behavior Kratz engaged in wasn’t just “deplorable”, it was criminal.  The text messages he sent weren’t merely “suggestive”; they were explicit and disgusting.  And it’s not as if Kratz woke up one morning, realized he was a pig and self-reported to the court system as an act of contrition.  He made a statement to the OLR because he was under a criminal investigation for harassment and abuse of office with respect to three women, not one.  In sum, at the risk of elucidating the obvious, Kratz is a shameless, remorseless liar.

 My law license was thereafter suspended for 4 months.  I have withstood a boat-load of other consequences as a result of that behavior, including loss of my prosecution career.  However, I’ve enjoyed sobriety from prescription drug use for over 5 years now, and refuse to be defined by that dark time of my life.  All of this occurred years after the Avery case was concluded…I’m unclear why the defense-created documentary chose to include this unpleasantness in this movie, especially if the filmmakers had no agenda to cast me as a villain.  I am not a victim in that whole texting scandal—then again, it’s exceedingly unfair to use that to characterize me as morally unfit.

And that, my friends, is what kids today call “cognitive dissonance”.

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One thought on “Steven Avery’s Prosecutor Fights Back, Proving He Was Portrayed Fairly

  1. I watched this whole series and found it truly amazing. People need to watch it.

    Unfortunately, after the series ended and I did further research on the case, I find myself strangely not caring. It’s the whole, people equation. Humans, doing what they do, acting unconsciously…

    I hate injustice as much as the next guy but when it was all said and done I’m left with 2 solid thoughts: Avery should walk, and Avery did it.

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