Convoluted Brian

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The Avery Appeal Step One

The first step of the appeals process for Steven Avery is underway. Avery was convicted in March 2007 for the Oct. 31, 2005 murder of Teresa Halbach. A hearing was held on 28 September, 2009, to request a new trial. Judge Patrick Willis, the original Avery trial judge heard the arguments and then requested briefs.

The attorneys for Avery, Suzanne Hagopian and Martha Askins of the state public defender’s office, asked for a new trial based upon two issues:

The first is that a juror was improperly dismissed, and the reason for the juror’s release was not truthfully conveyed to the defense attorneys and defendant. Further, the defense argues that state law required that a juror could not be released after the start of deliberations except for extreme incapacitation and if a juror were excused then a mistrial was required.

The second was that the trial judge erred by disallowing other likely suspects to be presented at trial. The judge allowed only the defense to name Brendan Dassey as the likely perpetrator and to name two Manitowoc County Sheriff’s officers as potential planters of evidence.

The juror issue is troubling. The court has bailiffs who are responsible for communicating with jurors, and the bailiffs are responsible to the court.

Here, it was Calumet County Sheriff Gerald Pagel who contacted the juror, Richard Mahler, and then had information delivered to the Judge. Judge Willis spoke with the juror without defense attorneys present and supposedly verified the juror’s reasons. Willis decided the juror needed to be excused and spoke defense attorneys Dean Strang and Jerome Buting by telephone.

The defense attorneys conferred with Avery and explained he could request a mistrial. However, Avery would then have new attorneys.

Pagel had early on stated his belief in Avery’s guilt to the local press and television. Pagel was also a close associate of the Special Prosecutor, Calumet County District Attorney Ken Kratz. Yet, he had direct contact with the juror rather than a bailiff of the court.

Pagel took part in the many press relation conferences set up by Kratz after the discovery of the Halbach vehicle on 3 November, 2005. And, Pagel was present when Kratz gave his inflammatory rendition of the Brendan Dassey confessions.

This seems very unusual to have the county sheriff personally acting as a bailiff. This wasn’t the only time Pagel interacted with jurors during this trial.

Mahler asked for dismissal from the jury due to a family emergency. According to Pagel and Willis, Mahler’s stepdaughter had been in an accident and Mahler’s wife was ready to end the marriage due to the trial.

Mahler also stated that he felt threatened by one of the jury members after the jury was sequestered for deliberations.

At the hearing, Mahler could not recollect with precision what his statements were.

I received an email from Mahler after the trial. He did not state why he had been removed from the jury, but did express concern that three members of the jury were likely biased from the start. One juror was the father of a Manitowoc Sheriff’s deputy, one was the husband of an employee at the Manitowoc County Clerks office, and one other was aware of the Ken Kratz supplied details of the Dassey confession. These three were the only ones to vote guilty at the initial jury vote.

I don’t understand why persons with close ties to the Manitowoc County Courthouse were one the jury. They may claim that they can be unbiased but given the behavior of law and courthouse persons in both Manitowoc and Calumet counties it is unlikely. Now, the judge can believe that prospective jurors can put their prejudgments aside, but the reality is that this is not a conscious process.

Plus, there is the business of conflict of interest. The State went through great pains to hand pick expert witnesses outside the counties and had them attend a group meeting in Madison before the trial. The Manitowoc County Coroner was initially stonewalled with no explanation. Finally, the Manitowoc County Counsel ordered the elected official off the case claiming conflict of interest. But it is likely the Coroner was not compliant enough for the State.

Yet, Manitowoc County Sheriff’s personnel continued to be active during the investigation and persons with close ties to Manitowoc County were on the jury.

The second issue was Judge Willis’ limiting of potential other culprits. The Judge limited the finger pointing to two Manitowoc County deputies. And this was only regarding planting of evidence.

There was a big problem with evidence integrity at the Manitowoc County Courthouse. One of the two named by Willis, Lieutenant James Lenk, was the Manitowoc County evidence custodian. But, he didn’t take an active role in securing evidence or the oversight of transfer of evidence. It is not clear if this was a flaw in job description or performance.

Lenk and the other that Judge Willis named, Sergeant Andrew Colborn, were two Manitowoc County Sheriff’s deputies who should not have been have been involved in the investigation. They were present when the mystery key surfaced in Avery’s bedroom after the seventh search of the room. A Calumet Count Deputy was also present who testified at trial that the key might have planted by aliens.

While Willis limited the persons the defense could go after, the prosecution and police blamed the defense for the ruling. This was irrational, but the intent was to blame the defense attorneys for an edict of the judge.

Willis relied on the 1985 State V. Denny Court of Appeals ruling regarding the “third party defense” to deny the introduction of other parties likely to have committed the crime.

This decision limited the introduction of third parties as possible or probable perpetrators to a test that “… is satisfied if motive and opportunity on the part of the third party are shown, and if there is ‘some evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances’.”(1)

Unfortunately, this test ignores such things as crimes of opportunity, random acts, or serial acts by a mobile perpetrator. While the courts cannot be bogged down with endless “somebody else did it” claims, the restrictions imposed by Denny guarantee that real perpetrators will be ignored when investigators exercise a rush to judgement.

The original defense attorneys were specific in which persons they wished to include as obvious suspects. They were, the Dassey brothers, Scott Tadych, Charles Avery, Earl Avery, Robert Fabian, and Andres Martinez. They gave the reasons for their suspicions of the persons as possible perpetrators. The defense limited the other persons to a small number rather than an open ended proposition.

The appeal defense attorneys refined the third party list to the Avery brothers, Bobby Dassey, and Scott Tadych. Their filing listed the reasons, including motivation, for including these persons.

The defense attorneys argued that other court decisions limit the effect of Denny.

The defense also stated that Judge Willis erred by applying a “super‑relevancy” test to the third party suspects. The argument here is that Wisconsin statues determine relevance rather than the so called (not so) bright line formulated in the Denny decision. The argument goes further in stating that Denny is wrong because it severely restricts defendants from providing a good defense besides being contrary to Wisconsin law.

Judge Willis was to deliver his decision on 1 December, 2009. But, Willis requested a delay until the end of January, 2010. Generally, Judge Willis appears to be careful about his decisions, although he did exhibit bias favoring the local prosecutor at times.

This step of the appeals process addressed only the two issues. And, these are primarily issues of law.

The defense filing gives examples of the bias in the investigation that started with the discovery of the vehicle. In the details are references to investigators feeding information to witnesses and potential suspects.

Other details that were not addressed in this appeal show the need for authorities to incriminate Steven Avery before investigating got underway.

Although Steven Avery was not in the area on the day of discovery, the immediate thrust was to incriminate him. Radio traffic from the Manitowoc County sheriff’s network made that clear. And, Manitowoc County deputies milled around the vehicle and did not attempt to secure a potential crime scene and preserve and document potential evidence.

No one would have faulted deputies if they made a reasonable attempt to determine if Halbach was still in vehicle, but that did not happen. The vehicle was loaded on a flatbed truck later in the evening and transported for a two‑hour plus trip to Madison without any attempt to determine if the vehicle would yield any information to the whereabouts of Teresa Halbach.(2)

There remains the problem of blood found in the Halbach vehicle that was identified as Steven Avery’s. The amount was quite small. The defense filing suggested that one of the alternate suspects had opportunity to plant a small amount of blood that was taken from a cloth Avery used to clean a cut.

But, the idea of planting blood from the Manitowoc County Courthouse sample remains viable. The blood vial was not secured, and the container had been opened. It appeared to me that there was a puncture mark in the vial stopper. I do not know how long a puncture mark remains in the stoppers, but I expect the stopper is self‑sealing.

The State’s witness said it was Avery blood. Hopefully, someone has compared the lab notes against the charts and testimony produced for the trial.

A key blood testimony witness for the prosecution also appears to have perjured himself in testimony he gave prior to testifying for the jury.(3)

The planting of blood evidence does not have to been done by the perpetrator. Rather someone with access to the blood who also wanted Avery convicted. Ideally, there is a log of all persons who had contact with the evidence at the courthouse. And, I would suspect a Calumet County person just as likely to taint the case.

The defense also noted the possibility of one of the third parties could have planted the key. The key remains very questionable in both the timing and circumstances of its discovery. Avery DNA was found on the key, but since it was found in his bedroom, the DNA is no doubt transfer DNA. We all shed DNA, some are greater shedders than others. The key did not yield any other evidence which is another oddity. It was a miraculous appearance.

The December 1, 2009 deadline for a decision on the appeal has come and gone. Judge Willis said he needed more time to examine the issues and plans on a decision by the end of January, 2010.


1. State of Wisconsin v Chester Hill 1996 Ct. App. No. 95‑2855‑CR
2. Pam Sturm testified at the the trial that the doors to the Halbach vehicle were locked when she found it, but Ron Groffy, a technician at the Madison Crime Lab, testified the doors were unlocked when the vehicle arrived at the lab.
Sturm also testified that she watched the Manitowoc County deputies to ensure they did not enter the vehicle. But, at the time of discovery no one knew about the unsecured blood vial at the Manitowoc County Courthouse. It would have made sense to try to discover the whereabouts of Halbach unless someone already knew of her death.
3. The Florida Court of Appeals called Marc Lebeau, the section chief of the FBI’s chemistry analysis unit, too biased in Sybers vs. Florida. LeBeau claimed that he discovered an error in the Sybers conviction and worked to set the record straight, but his altruistic claim is not reflected in the Florida Appeals Court decision.
The Florida Appeals Court stated, “The only testimony offered by the state to establish the general scientific acceptance of the testing procedures came from Dr. Ballard and Mr. LeBeau, each of who either had a personal stake in the procedure or was prone to potential institutional bias. Such assertions are not, alone, sufficient.” William Sybers v State of Florida 23 2003 FL Ct. App. 01‑1609/02‑0129
In the Sybers case, LeBeau tailored the tests and assumptions to give the State incriminating results. The Appeals Court rejected the tests because they had not been verified by an outside source.
Finally, LeBeau testified that he would not produce results friendly the a defendant because he worked for the other side. That statement alone should have disqualified him from testifying as an expert witness. The admonitions of the Florida count were lost.
LeBeau also claimed that the attorney of the FBI lab told him not to bring evidence items requested by the defense. This needs to be verified.
by Brian McCorkle
posted on 12 December, 2009 at 22:07 pm
in category Steven Avery

The first step of the Steven Avery appeals process hits a speed bump.

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