The Tragic Tale of Steven Avery

I have written several articles law enforcement. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on Law Enforcement.

I just finished my second season on Netflix of “Making A Muderer.” I quickly became hooked as did my wife. We watched the 20 episodes in just three days. We have since went to several websites to verify what we were watching. Frankly I am aghast at how the family has been treated and manipulated not only by the County of Manitowoc but the state of Wisconsin as well. To start off the key characters of the saga are comprised mainly of members of the Avery family. Unfortunately most of them are either below average intlligence or are just abouve the idiot level. Few of the family members have the benefit of a high school education. Many of them have had to drop out to help support the family. The main source of income is a family operated salvage yard where they not only gain their income from but they live on the property as well. The main character Steven, has an IQ of 70 and his nephew Brandon, who is also serving time has an IQ of 80. He however, has social issues so he may even even have lower coping skills in society then his uncle. They have both been manipulated by unscrupulous law enforcement members of the county. Not only are vast amounts of money at stake but so are careers and reputations. If all the details of their malfeasance comes out, several individuals may actually suffer criminal prosecution. Thanks to Netflix the events that have transpired since the mid 80’s to the present are finally coming out. The second season covered events up to the end of 2017. A third season is in the works which will bring us up to date. However associated websites can be referenced if you can’t wait for Netflix.

Because there is so much information involved in this saga, I am going to use some reference sources to help sort things out.

“Making a Murderer“

Making a Murderer is an American true crime documentary television series written and directed by Laura Ricciardi and Moira Demos. The show tells the story of Steven Avery, a man from Manitowoc County, Wisconsin, who served 18 years in prison (1985-2003) for the wrongful conviction of sexual assault and attempted murder of Penny Beerntsen. He was later charged in 2005, and convicted in 2007, for the murder of Teresa Halbach. The connected story is that of Brendan Dassey, accused and convicted as an accessory in the murder.

The first season mainly chronicles the period between 1985 and 2007, portraying Avery’s 1985 arrest and conviction, his subsequent exoneration and release in 2003, the civil lawsuit Avery filed against Manitowoc County, his 2005 arrest, and his ensuing trial and conviction in 2007. It also depicts the arrest, prosecution, and conviction of Avery’s nephew, Brendan Dassey, focusing on the accusations of coercion and attorney ineptitude.

The second season explores the aftermath of both Avery’s and Dassey’s convictions, focusing on Avery’s and Dassey’s families, the investigation and findings of Avery’s new attorney Kathleen Zellner, which supported the thesis of Avery’s innocence and him being framed for the murder of Halbach, and Dassey’s legal team’s efforts in arguing in court that his confession was coerced by prosecutors and his constitutional rights were violated.

The first season premiered on Netflix on December 18, 2015. It was filmed over the course of 10 years, with the filmmakers moving back and forth from New York City to Wisconsin during filming. To promote the series, Netflix released the first episode concurrently on YouTube and on Netflix, which it had not done for any other original programming.

In July 2016, Netflix announced the second season, to explore the aftermath of Dassey’s conviction and the numerous appeals that had taken place. The 10-episode second season was released on October 19, 2018.

Making a Murderer won several awards, including four Primetime Emmy Awards in 2016. As a production, the series was favorably compared to the HBO series The Jinx and the podcast Serial. Making a Murderer was widely viewed and has generated considerable controversy, both in Manitowoc County, the setting of events, and nationwide. A petition in December 2015 to the White House to pardon Avery garnered more than 500,000 signatures. The White House’s statement noted “the President cannot pardon a state criminal offense.”

Making a Murderer details the life of Steven Avery, a man whose family owned an auto salvage yard in Manitowoc County, Wisconsin. In 1985, Avery was arrested and convicted of the sexual assault of Penny Beerntsen, despite having an alibi. After serving 18 years in prison, Avery was exonerated with the aid of the Innocence Project, when the DNA in the case was matched to another man. After Avery was released from prison in 2003, he filed a $36 million civil lawsuit against Manitowoc County and several county officials associated with his arrest and conviction.

Two years later, in 2005, Avery was arrested and charged with the murder of Teresa Halbach, a photographer who disappeared after she photographed a vehicle at Avery’s salvage yard. The handling of the Halbach murder case was highly controversial. Steven Avery and his lawyers argued that he had once again been “set up”. Bloodstains recovered from the interior of Halbach’s car matched Avery’s DNA. Avery maintained that the murder charge was a frameup, promulgated to discredit his pending civil case. His attorneys accused Manitowoc officials of evidence tampering after a vial of Avery’s blood, stored in an evidence locker since the 1985 trial, was found with broken container seals and a puncture hole in the stopper, suggesting that blood from the vial could have been used to plant incriminating evidence in the victim’s vehicle. The Avery tube contained ethylenediamine-tetraacetic acid (EDTA), which prevents blood coagulation and degradation. EDTA is not naturally present in human blood, and the defense argued that if EDTA was found in the crime scene blood, it would prove the blood was planted. While the tampering charge was never substantiated, accusations of prosecutorial misconduct have persisted. The series further explores issues and procedures in the Manitowoc County Sheriff’s Department that led to Avery’s original conviction, and suggests that the department had a conflict of interest in investigating Halbach’s murder.

The series also covers the arrest, prosecution, and conviction of Avery’s nephew, Brendan Dassey, who was accused and convicted as an accessory to the murder, based largely on his confession under interrogation. The series depicts his trial, along with subsequent accusations of coercion and ineffective assistance of counsel.

On August 12, 2016, Dassey had his conviction overturned by a federal judge on the grounds that he was unconstitutionally coerced by the police into confessing to the murder, and this was the only substantial evidence in the case. On November 14, 2016, Federal Judge William Duffin ordered Dassey’s release from prison within 90 days, if Wisconsin prosecutors did not move forward with a retrial. On November 17, the U.S. Court of Appeals for the Seventh Circuit blocked Dassey’s release while the appeal was being heard. A three-judge panel from the 7th Circuit affirmed Judge Duffin’s decision to release Dassey, and stated that Dassey should be freed unless the state chose to retry him. In December 2017, an en banc panel of seven judges of the United States Court of Appeals for the Seventh Circuit ruled in favor of upholding the original conviction, in a split vote of 4 to 3, ruling that police had properly obtained Dassey’s confession. In June 2018, the U.S. Supreme Court declined to hear Dassey’s appeal of the 7th Circuit’s en banc decision.

In other media

The story of the crime for which Avery was initially charged and imprisoned was featured in the Radiolab episode, “Are You Sure?” (airdate March 26, 2013), in the segment “Reasonable Doubt”. The show featured an interview with Penny Beerntsen, the subject of the attack for which Avery was wrongfully convicted.

Persons featured

Avery family

Steven Avery – Wrongfully convicted of a sexual assault, for which he served an 18-year sentence. Defendant convicted of Halbach’s murder.
Allan Avery – Steven Avery’s father
Dolores Avery – Steven Avery’s mother
Chuck Avery – Steven Avery’s brother
Earl Avery – Steven Avery’s brother
Barb Dassey – Steven Avery’s sister, mother of Brendan and Bobby Dassey
Brendan Dassey – Avery’s nephew, son of Barb Dassey, defendant convicted of assisting Avery in Halbach’s murder.
Bobby Dassey – Brendan Dassey’s brother, son of Barb Dassey
Scott Tadych – married Barb Dassey (before the trials), stepfather of her children
Kayla Avery – Brendan Dassey’s cousin
Kim Ducat – Steven Avery’s cousin
Carla Chase – Steven Avery’s niece, Brendan Dassey’s cousin
Brad Dassey – Brendan’s half brother, voice actor, and aspiring rapper.

Victims

Penny Beerntsen – Victim of a sexual assault and attempted murder in 1985, for which Steven Avery was wrongfully convicted
Teresa Halbach – Murder victim in 2005
An unidentified and unnamed rape victim of Gregory Allen, convicted for an attempted rape on Penny Beerntsen.

Defense lawyers

Kathleen Zellner – post-conviction attorney for Steven Avery
Dean Strang – for Steven Avery
Jerome Buting – for Steven Avery
Robert Henak – post-conviction attorney for Steven Avery
Stephen Glynn – civil rights lawyer for Steven Avery
Len Kachinsky – Brendan Dassey’s first appointed lawyer
Mark Fremgen – for Brendan Dassey, appointed lawyer (second lawyer)
Ray Edelstein – for Brendan Dassey, appointed lawyer (second lawyer)
Steven Drizin – post-conviction attorney for Brendan Dassey
Robert Dvorak – post-conviction attorney for Brendan Dassey
Laura Nirider – post-conviction attorney for Brendan Dassey

Prosecution

Denis Vogel – Manitowoc County District Attorney, prosecuted Avery’s 1985 sexual assault case
Ken Kratz – special prosecutor, district attorney of Calumet County, Wisconsin, prosecuted Halbach murder case
Norm Gahn – special prosecutor, assistant district attorney of Milwaukee County

Judges

Patrick Willis – Manitowoc County Circuit Court Judge, presided over Steven Avery’s trial
Jerome Fox – Manitowoc County Circuit Court Judge, presided over Brendan Dassey’s trial
Angela Sutkiewicz – Manitowoc County Circuit Court Judge, presides over Steven Avery’s appeals

Law enforcement

Tom Kocourek – Manitowoc County Sheriff (1979–2001)
Kenneth Petersen – Manitowoc County Sheriff (2001–07)
Gene Kusche – Manitowoc County Chief Deputy Sheriff at time of Avery’s 1985 trial
James Lenk – lieutenant, Manitowoc County Sheriff’s Department
Andrew Colborn – sergeant, Manitowoc County Sheriff’s Department
Judy Dvorak – deputy, Manitowoc County Sheriff’s Department
Tom Fassbender – investigator, Wisconsin Division of Criminal Investigation, lead investigator in Halbach murder trial
Mark Wiegert – sergeant, Calumet County Sheriff’s Department
Jerry Pagel – Calumet County Sheriff

Private investigators

Michael O’Kelly – investigator hired by Len Kachinsky

Steven Avery

Steven Allan Avery (born July 9, 1962) is an American convicted murderer from Manitowoc County, Wisconsin, who had previously been wrongfully convicted in 1985 of sexual assault and attempted murder. After serving eighteen years of a thirty-two-year sentence (six of those years being concurrent with a kidnapping sentence), Avery was exonerated by DNA testing and released in 2003, only to be charged with murder two years later.

Avery’s 2003 exoneration prompted widespread discussion of Wisconsin’s criminal justice system; the Criminal Justice Reform Bill, enacted into law in 2005, implemented reforms aimed at preventing future wrongful convictions. Following his release, Avery filed a $36 million lawsuit against Manitowoc County, its former sheriff, and its former district attorney for wrongful conviction and imprisonment. In November 2005, with his civil suit still pending, he was arrested for the murder of Wisconsin photographer Teresa Halbach, and in 2007 was convicted and sentenced to life imprisonment without possibility of parole. The conviction was upheld by higher courts.

Avery’s 2007 murder trial and its associated issues are the focus of the 2015 Netflix original documentary series Making a Murderer, which also covered the arrest and 2007 conviction of Avery’s nephew, Brendan Dassey. In August 2016, a federal judge overturned Dassey’s conviction on the grounds that his confession had been coerced. In June 2017, Wisconsin prosecutors appealed this decision. Eight months later, a panel of seven judges of the United States Court of Appeals for the Seventh Circuit ruled in favor of upholding the original conviction by a vote of 4 to 3, ruling that police had properly obtained Dassey’s confession. On February 20, 2018, Dassey’s legal team, including former Solicitor General of the United States Seth Waxman, filed a petition for a writ of certiorari to the U.S. Supreme Court. On June 25, 2018, certiorari was denied.

Early life

Steven Avery was born in 1962 in Manitowoc County, Wisconsin, to Allan and Dolores Avery. Since 1965, his family has operated a salvage yard in rural Gibson, Wisconsin, on the 40-acre (16 ha) property where they lived outside town. Avery has three siblings: Chuck, Earl, and Barb. He attended public schools in nearby Mishicot and Manitowoc, where his mother said he went to an elementary school “for slower kids”. According to one of his lawyers in 1985, school records showed that his intelligence quotient was 70 and that he “barely functioned in school”.

On July 24, 1982, Avery married Lori Mathiesen, who was a single mother. They have four children together: Rachel, Jenny, and twins Steven and Will.

Early convictions

In March 1981, at age 18, Avery was convicted of burglarizing a bar with a friend. After serving ten months of a two-year sentence in the Manitowoc County Jail, he was released on probation and ordered to pay restitution.

In late 1982, two men admitted that, at Avery’s suggestion, they threw his cat “in a bonfire and then watched it burn until it died” after Avery had poured gas and oil on it. Avery was found guilty of animal cruelty and was jailed until August 1983. “I was young and stupid, and hanging out with the wrong people”, Avery said later, of his first two incarcerations.

In January 1985, Avery ran his cousin’s car off to the side of the road. After she pulled over, Avery pointed a gun at her. He was upset that she had been spreading rumors about him masturbating on the front lawn, which he stated was not true. Avery maintained that the gun was not loaded and that he was simply trying to stop her from spreading rumors about him. He was sentenced to six years for “endangering safety while evincing a depraved mind” and possession of a firearm.

Wrongful attempted sexual assault conviction

In July 1985, a woman was brutally attacked and sexually assaulted while jogging on a Lake Michigan beach. Avery was arrested after the victim picked him from a photo lineup, and later from a live lineup. Although Avery was forty miles away in Green Bay shortly after the attack – an alibi supported by a time-stamped store receipt and sixteen eyewitnesses – he was charged and ultimately convicted of rape and attempted murder, then sentenced to thirty-two years in prison. Appeals in 1987 and 1996 were denied by higher courts.

Around 1995, a Brown County police detective contacted the Manitowoc County Jail, saying that an inmate “had admitted committing an assault years ago in Manitowoc County and that someone else was in jail for it”. The jail officer transferred the call to the Manitowoc County detective bureau. Deputies recalled Sheriff Thomas Kocourek telling them, “We already have the right guy. Don’t concern yourself with it.”

Avery continued to maintain his innocence in the Beerntsen case. In 2002, after serving eighteen years (the first six concurrently on the prior endangerment and weapons convictions), the Wisconsin Innocence Project used DNA testing – not available at the time of Avery’s original trial – to exonerate him and to demonstrate that a different suspect, Gregory Allen, had in fact committed the crime. Allen, who bore a striking physical resemblance to Avery, had committed an assault in 1983 at the same beach where Beerntsen was later attacked in 1985, and was under police surveillance during the period of Beerntsen’s assault due to his history of criminal behavior against women. However, Allen was never a suspect in the Beerntsen case, and he was not included in the photo or live lineups presented to Beerntsen.

Avery was released on September 11, 2003. By that time, his wife had divorced him, and he was estranged from his family.

Avery’s wrongful conviction case attracted widespread attention. Rep. Mark Gundrum, the Republican chairman of the Wisconsin Assembly Judiciary Committee, impaneled a bipartisan task force to recommend improvements to the state’s criminal justice system aimed at decreasing the likelihood of future wrongful convictions. Recommendations included a revamped eyewitness identification protocol and new guidelines for interrogations of suspects and witnesses, and the collection and storage of material evidence. The recommendations were ultimately drafted into legislation that became known as the Avery Bill, which was passed and signed in October 2005, then renamed the Criminal Justice Reform Bill a month later after Avery was charged in the Halbach case.

Avery filed a civil lawsuit against Manitowoc County; its former sheriff, Thomas Kocourek; and its former district attorney, Denis Vogel, seeking to recover $36 million in damages stemming from his wrongful conviction. The suit was settled in February 2006 for $400,000 following his murder indictment.

Teresa Halbach murder

Photographer Teresa Halbach disappeared on October 31, 2005; her last alleged appointment was a meeting with Avery, at his home near the grounds of Avery’s Auto Salvage, to photograph his sister’s minivan that he was offering for sale on Autotrader.com.^[24] Halbach’s vehicle was found partially concealed in the salvage yard, and bloodstains recovered from its interior matched Avery’s DNA. Investigators later identified charred bone fragments found in a burn pit near Avery’s home as Halbach’s.

Avery was arrested and charged with Halbach’s murder, kidnapping, sexual assault, and mutilation of a corpse on November 11, 2005. He had already been charged with a weapons violation as a convicted felon. Avery maintained that the murder charge was a frameup, promulgated to discredit his pending civil case. Manitowoc County claimed to and did cede control of the murder investigation to the neighboring Calumet County Sheriff’s Department because of Avery’s suit against Manitowoc County. As part of the agreement for Calumet to use resources from Manitowoc County including personnel, Manitowoc sheriff’s deputies participated in repeated searches of Avery’s trailer, garage, and property, supervised by Calumet County officers. A Manitowoc deputy found the key to Halbach’s vehicle in Avery’s bedroom. His attorneys said there was a conflict of interest in their participation and suggested evidence tampering with no proof of same.

Avery’s attorneys also discovered that an evidence box containing a vial of Avery’s blood, collected in 1996 during his appeals efforts in the Beerntsen case, had been unsealed (by the Innocence Project) and contained what they later mistakenly assumed to be a new puncture hole visible in the stopper. They speculated that the blood found in Halbach’s car could have been drawn from the stored vial and planted in the vehicle to incriminate Avery. To combat this claim, the prosecution presented testimony by FBI technicians who had tested the blood recovered from Halbach’s car for ethylenediaminetetraacetic acid (EDTA), a preservative used in blood vials but not present in the human body, and found none. Avery’s defense team presented expert witness testimony stating that it was not possible to tell if the negative result meant that EDTA was not present, or if the test itself was inconclusive.

Prosecution

As of May 2006, Avery was the only one of the Innocence Project’s 174 exonerees to have been charged with a violent crime after release.

In March 2006, Avery’s nephew, Brendan Dassey, was charged as an accessory after he confessed under interrogation to having helped Avery kill Halbach and dispose of the body. He later recanted his confession, claiming that it had been coerced, and refused to testify to his involvement at Avery’s trial. He testified at his own trial and never mentioned coercion. Dassey was convicted of murder, rape, and mutilation of the corpse in a separate trial.

In pretrial hearings in January 2007, charges of kidnapping and sexual assault were dropped. Avery stood trial in Calumet County in March 2007, with Calumet District Attorney Ken Kratz leading the prosecution, and Manitowoc County Circuit Court judge Patrick Willis presiding. On March 18, Avery was found guilty of first-degree murder and illegal possession of a firearm, and was acquitted on the corpse-mutilation charge. He was sentenced to life in prison without possibility of parole on the murder conviction, plus five years on the weapons charge, to run concurrently.

After serving five years at the Wisconsin Secure Program Facility in Boscobel, Avery was transferred in 2012 to the Waupun Correctional Institution in Waupun.

In January 2016, after Making a Murderer had been released, People magazine reported that one of the Avery trial jurors was the father of a Manitowoc County sheriff’s deputy, and another juror’s wife was a clerk with Manitowoc County. Juror Richard Mahler, who was excused from the trial after the jury had begun deliberations because of a family emergency, later commented that early on, seven of the jurors had voted not guilty; he was mystified that the jury eventually agreed on a conviction. Mahler’s account has been disputed by other jury members, who claim that no early vote had taken place and that an informal vote was taken with only three jury members voting Avery not guilty. Another juror allegedly told the Making a Murderer filmmakers of feeling intimidated into returning a guilty verdict, fearing for personal safety. The filmmakers’ claims have also been disputed.

Appeals

In August 2011, a state appeals court denied Avery’s petition for a new trial, and in 2013, the Wisconsin Supreme Court denied a motion to review the ruling. In January 2016, Chicago attorney Kathleen Zellner, in collaboration with the Midwest Innocence Project, filed a new appeal, citing violations of Avery’s due process rights and accusing officials of gathering evidence from properties beyond the scope of their search warrant.

In December 2015, Dassey’s attorneys filed a writ of habeas corpus in federal district court for release or retrial, citing constitutional rights violations resulting from ineffective assistance of counsel and the coerced confession. In August 2016, Dassey’s conviction was overturned by federal magistrate judge William E. Duffin, who ruled that Dassey’s confession was involuntary. Duffin granted a defense petition for Dassey’s release on November 14, but the U.S. Court of Appeals for the Seventh Circuit overturned his ruling on November 17, ordering that Dassey remain incarcerated pending resolution of the state’s appeal of the habeas decision. He last filed for parole in 2021 but was denied. He is still currently trying to file for parole to this day.

In June 2017, the Seventh Circuit upheld the magistrate’s decision to overturn Dassey’s conviction, leaving the state with the options of appealing Duffin’s ruling to the U.S. Supreme Court, dismissing the charges, or retrying him. The state then petitioned the appellate court to hear the case en banc. The state’s petition was granted and the appellate court reversed the magistrate’s ruling, finding that Dassey’s confession did not violate the Constitution. Dassey’s attorneys filed a petition to have the Supreme Court hear his case, but the request was denied. Dassey remains in prison.

On August 26, 2016, Zellner filed a motion with the Manitowoc County circuit court for post-conviction scientific testing. Judge Angela Sutkiewicz signed a stipulation and order for the scientific testing to proceed on November 23, 2016.

On June 7, 2017, Zellner filed a 1,272-page post-conviction motion citing ineffective assistance of counsel, Brady violations, and affidavits by experts allegedly debunking the manner in which Halbach was killed, including alleged new evidence and ethical violations by Kratz. Zellner said that Avery’s conviction was based on planted evidence and false testimony, and was requesting a new trial “in the interests of justice.” On October 3, 2017, Avery’s motion for a new trial was summarily denied without the court holding an evidentiary hearing.

On February 26, 2019, the Wisconsin Court of Appeals granted Avery’s petition requesting that his case be remanded back to the trial court for an evidentiary hearing on his motion for a new trial. Zellner posted the news to her Twitter page several hours before, tweeting:

“Avery Update: We Won!!!!!! Back to the circuit court. #TruthWins @llifeafterten @ZellnerLaw @TManitowoc @michellemalkin #MakingaMurderer.”

Based on the bone fragments found in the county gravel pit, Zellner proffered a new theory, based on new evidence, to support Avery’s upcoming case. This began in 2018 when she filed a motion to have “suspected human” bones that were being held by the Wisconsin Department of Justice be tested for DNA. The bones came from three different burn piles within the Manitowoc County-owned quarry, and among them was a pelvic-bone fragment. New technology used to identify victims in the California wildfires would allow Zellner, if she had won the appeal, to test the bones for Teresa Halbach’s DNA. However, when the motion was filed, Zellner soon discovered that the state had returned the bones to Halbach’s family.

“By giving them [to the Halbach family] …” Zellner stated to Rolling Stone, “they have just confirmed they believe those bones are human.”

Zellner went on to file another motion, saying that the return of the bones to the Halbach family constituted an Arizona v. Youngblood violation, which meant that this potentially crucial exculpatory evidence could not be tested.

“It’s a very sneaky way to get evidence destroyed. It seems very deliberate that the thinking was, ‘We need to get rid of those bones, but we can’t just go in and cremate them ourselves.”

Zellner’s second motion was supported by a “never-before disclosed ledger sheet” indicating that the presence of the bones was not disclosed to Avery’s defense team before they were returned to the Halbach family. Zellner had fourteen days to file any “supplemental post conviction motions” before Avery’s new court date would be set.

On July 28, 2021, the Court of Appeals for the State of Wisconsin affirmed the Circuit Court’s denial of Steven Avery’s big brief filed by Zellner, pointing out many misrepresentations contained in that brief.

Petitions

On December 20, 2015, a petition was created at a White House petitioning site titled “Investigate and pardon the Averys in Wisconsin and punish the corrupt officials who railroaded these innocent men.” In a January 2016 response to the petition, a White House spokesperson said that since Avery and Dassey “are both state prisoners, the President cannot pardon them. A pardon in this case would need to be issued at the state level by the appropriate authorities.” A spokesman for Wisconsin Governor Scott Walker stated that Walker would not pardon Avery.

A second petition, titled “Initiate a Federal Investigation of the Sheriff’s Offices of Manitowoc County and Calumet County, Wisconsin,” was submitted to the White House petitioning site on January 7, 2016. The petition was archived because it did not meet the minimum signature requirements.

Brendan Dassey

Brendan Ray Dassey (born October 19, 1989) is an American convicted murderer from Manitowoc County, Wisconsin, who at 16 confessed to being a party to first-degree murder, mutilation of a corpse, and second-degree sexual assault. He was sentenced to life in prison with the earliest possibility of parole in 2048. His videotaped interrogation and confession, which he recanted at trial, substantially contributed to his conviction. Parts were shown in the Netflix documentary series Making a Murderer (2015). The series examined the 2005–2007 investigation, prosecution, and trials of Dassey and his uncle, Steven Avery, both of whom were convicted of murdering the photographer Teresa Halbach on October 31, 2005.

After his conviction, Dassey’s case was taken by the Center on Wrongful Convictions of Youth. In August 2016, a federal magistrate judge ruled that Dassey’s confession had been coerced and overturned his conviction and ordered him released, which was delayed during appeal. In June 2017, a divided panel of the United States Court of Appeals for the Seventh Circuit affirmed the magistrate’s order overturning Dassey’s conviction. In December 2017, the full en banc Seventh Circuit upheld Dassey’s conviction by a vote of 4–3, with the majority finding that the police had properly obtained Dassey’s confession.

Early life

Brendan Ray Dassey was born to Barbara and Peter Dassey in Manitowoc County, Wisconsin. He has three brothers (Bryan, Bobby, and Blaine) and a half-brother (Brad).

At the time of his indictment, Dassey was a 16-year-old sophomore at Mishicot High School. With an IQ in the borderline deficiency range, he was enrolled in special education classes. Dassey was described as a quiet, introverted young man with an interest in WWE (he was reportedly upset when he missed WrestleMania 22), animals, and video games. Before this case, he had no involvement with the criminal justice system.

Murder of Teresa Halbach

Photographer Teresa Halbach, born March 22, 1980, in Kaukauna, Wisconsin, was reported missing by her parents on November 3, 2005. Halbach, who had not been seen since October 31, resided next door to her parents in Calumet County. Halbach was known to have visited the Avery Salvage Yard in Manitowoc County on October 31, 2005.

On November 10, 2005, following the discovery of her Toyota RAV4 vehicle partially concealed on the Avery property, Calumet County Sheriff Jerry Pagel conducted a search and found the charred remains of Halbach. Her cell phone, license plates and car key were also recovered. On November 15, after Steven Avery’s blood was found in her vehicle, Avery was charged with the kidnapping and murder of Halbach, mutilation of a corpse, and illegal possession of a firearm.

During the investigation, Dassey, Avery’s alibi, underwent a series of interrogations without counsel or parent present, although Dassey and his mother consented to the interrogations, in which investigators made false promises to Dassey using approved interrogation techniques. While being interrogated, Dassey confessed in detail to being a co-conspirator in the rape and murder of Halbach and the mutilation of her corpse. His confession was later described as “clearly involuntary in a constitutional sense” by a US magistrate judge whose opinion was overturned by an appellate court. The U.S. Supreme Court upheld the appellate court by refusing to hear the case.

He was arrested and charged on March 1, 2006, with being party to a first-degree homicide, sexual assault, and mutilation of a corpse. The special prosecutor Ken Kratz held a major press conference about the two cases, discussing the charges against Avery and Dassey, and reading verbatim elements of Dassey’s confession. It was widely covered by TV and newspapers.

Dassey later recanted his confession in a letter to the trial judge. He said he got most of his ideas from a book.

Interrogation

Dassey was interrogated on four occasions over a 48-hour period, including three times in a 24-hour time frame with no legal representative, parent, or other adult present. Initially interviewed on November 6 at the family cabin in Crivitz, Dassey was interrogated via the Reid technique,^[18] which was developed to permit and encourage law enforcement officers to use tactics that pressure suspects to confess. Dassey had been clinically evaluated as being highly suggestible,^[20] which makes a suspect more compliant and can ultimately lead to improper interrogation outcomes such as false confessions.

Dassey recanted his confession and informed his defense counsel. He later charged that his first defense counsel collaborated with the prosecution to get Dassey to plead guilty in order to testify against Avery. The defense counsel was replaced. The Netflix series Making a Murderer (2015), which chronicles the trials of Dassey and Avery, has generated global dialogue centered around wrongful convictions, coerced confessions, interrogation of minors, and criminal justice reform.

Trial

Dassey’s first appointed lawyer, Len Kachinsky, was removed by the court on August 26, 2006, due to his decision not to appear with Brendan during the May 13 interrogation. He was replaced by two public defenders.

The Dassey trial began on April 16, 2007, with a jury from Dane County, Wisconsin. The trial lasted nine days, with a verdict delivered on April 25, 2007.

The jury deliberated for four hours, finding Dassey guilty of first-degree intentional homicide, rape and mutilation of a corpse. Though only 17 years old at the time, Dassey was tried and sentenced as an adult, and his intellectual limitations were ruled irrelevant. He was sentenced to life in prison with eligibility for parole in 2048 and incarcerated at the Columbia Correctional Institution in Portage, Wisconsin.

Public response and appeals

In January 2010, Dassey’s attorneys entered a motion for retrial, which was denied in December by Judge Fox. Fox’s ruling was affirmed by the Wisconsin Court of Appeals in January 2013, and the Wisconsin Supreme Court declined to review it.

The release of Making a Murderer in December 2015 generated a wide, international audience and was met with significant media attention. There were numerous discussions regarding the prosecution of criminal cases. Due to the unprecedented response to the Netflix docu-series, by July 2016, Making a Murderer 2 was in production, focusing on the post-conviction process for Dassey and his family. His conviction has been appealed through the state court system and a petition for habeas corpus was filed in federal court. Because of the nature of Dassey’s interrogations, there have been calls for the exoneration of Dassey with petitions for his freedom and the implementation of the “Juvenile Interrogation Protection Law in Wisconsin”, which would prohibit police from questioning minors without a lawyer present.

In December 2015, petitions were submitted for the investigation of the police officers who interrogated Dassey, and January 2016, on the federal government’s We the People website. Rallies in support of the exoneration of Dassey were held in the United States, London, Manchester, Melbourne, Sydney, and Perth. Supporters have been communicating with him via letters and contributing to his prison commissary.

Dassey is now represented by Steven Drizin and Laura Nirider, both professors at Northwestern University‘s Center on Wrongful Convictions of Youth and experts in false confessions from juvenile suspects. In December 2015, Dassey’s attorneys filed a writ of habeas corpus in federal district court for release or retrial, citing constitutional rights violations due to ineffective assistance of counsel and a coerced confession.

In August 2016, United States magistrate judge William E. Duffin ruled that Dassey’s confession had been coerced, and was therefore involuntary and unconstitutional, and ordered him released.^[39][40][41] In November, the Wisconsin Justice Department appealed Duffin’s decision to the United States Court of Appeals for the Seventh Circuit, which blocked Dassey’s release pending a hearing.

In June 2017, a three-judge panel of the Seventh Circuit upheld the magistrate’s decision to overturn Dassey’s conviction. Judge Ilana Rovner, joined by Judge Ann Claire Williams, affirmed, over the dissent of Judge David Hamilton. On July 5, the Wisconsin Department of Justice submitted a petition requesting a rehearing en banc—by the entire 7th Circuit panel. On August 4, 2017, the Seventh Circuit Court of Appeals granted the State of Wisconsin’s request for an en banc hearing with oral arguments set for September 26 in Chicago before a full panel of sitting judges.

On December 8, 2017, the full en banc Seventh Circuit upheld Dassey’s conviction by a vote of 4–3, with the majority finding that the police had properly obtained Dassey’s confession. Circuit Judges Joel Flaum and Amy Coney Barrett (who joined the court after argument in the case had been heard) recused themselves from the case and did not participate in the consideration or decision. Judge Hamilton’s majority opinion was joined by Judges Frank H. Easterbrook, Michael Stephen Kanne, and Diane S. Sykes. Then-Chief Judge Diane Wood and Judge Rovner both wrote dissents, joined by Judge Williams.

On February 20, 2018, Dassey’s legal team, including former U.S. Solicitor General Seth P. Waxman, filed a petition for a writ of certiorari to the United States Supreme Court. The case was assigned case number 17-1172. Justices were scheduled to discuss the case in conference to determine if they would hear the case on June 14, 2018, but the case was removed from the schedule without an explanation or a rescheduling order on the morning of the conference. On June 25, 2018, certiorari was denied.

Kathleen Zellner

Kathleen Zellner is an American attorney who has worked extensively in wrongful conviction advocacy. Notable clients Zellner has represented include Steven Avery (who was the subject of the 2015 and 2018 Netflix series Making a Murderer), Kevin Fox (who was falsely accused of murdering his daughter), Ryan W. Ferguson, Larry Eyler, and 19 exonerees who are listed in the National Registry of Exonerations.

Early life and education

Kathleen Zellner was born in Midland, Texas, the second of seven children. Her father Owen Thomas was a geologist, and her mother Winifred was a chemist who became a nurse. When she was nine years old, she and her family moved to Bartlesville, Oklahoma.

She attended Marquette University in Wisconsin, and then the University of Missouri, before graduating with a B.A. from Concordia University in Montreal, Canada. She received her Juris Doctor from the Northern Illinois University College of Law in 1981, where she was Editor-in-Chief of the Law Review, and clerked for 2nd District Illinois Appellate Court justice George W. Lindberg.

Career

She opened her firm, Kathleen T. Zellner & Associates in Downers Grove, Illinois, in 1991. Her firm handles wrongful conviction cases, civil rights violations, medical malpractice, and prisoner abuse cases. Zellner had achieved 19 exonerations as of October 2018, and now 20 exonerations for clients.

Notable clients Zellner has represented include Steven Avery (who was the subject of the 2015 and 2018 Netflix series Making a Murderer), Kevin Fox (who was falsely accused of murdering his three-year-old daughter), and 19 exonerees who are listed in the National Registry of Exonerations. Newsweek reported that a lawyer said that facing her at trial was “worse than my divorce.”

As of March 2016, she had won almost $90 million from wrongful conviction and medical malpractice lawsuits. In 2000, The National Law Journal named Zellner a top ten trial lawyer in the United States for a suicide malpractice verdict of $13 million. She also won a $15.5 million verdict for the violation of Kevin Fox’s civil rights in 2007, an $11 million verdict for Ryan W. Ferguson in Missouri who had served 10 years in jail, and a $9 million civil rights verdict for Ray Spencer in Washington in 2014. In 2012, she won the American Bar Association “Pursuit of Justice” Award.

In 2022, Zellner served as a consultant to Johnny Depp on the Depp vs Heard defamation trial.

Innocence Project

Innocence Project, Inc. is a 501(c)(3) nonprofit legal organization that is committed to exonerating individuals who have been wrongly convicted, through the use of DNA testing and working to reform the criminal justice system to prevent future injustice. The group cites various studies estimating that in the United States between 2.3% and 10% of all prisoners are innocent. The Innocence Project was founded in 1992 by Barry Scheck and Peter Neufeld who gained national attention in the mid-1990s as part of the “Dream Team” of lawyers who formed part of the defense in the O. J. Simpson murder case.

As of 2021, the Innocence Project has helped to successfully overturn over 300 convictions through DNA-based exonerations. In 2021, Innocence Project received the biennial Milton Friedman Prize for Advancing Liberty by Cato Institute, awarded in recognition and gratitude for its work to ensure liberty and justice for all. In March 2022, The Innocence Project won two Webby Awards for its Happiest Moments video, winning the Best Humanitarian & Services campaign in both the brand and non-profit categories. Happiest Moments was the organizations first-ever public service announcement that premiered in June 2021 and was produced by Hayden5.

Founding

The Innocence Project was established in the wake of a study by the U.S. Department of Justice and U.S. Senate, in conjunction with the Jewish Yeshiva University‘s Benjamin N. Cardozo School of Law, which claimed that incorrect identification by eyewitnesses was a factor in over 70% of wrongful convictions. The Innocence Project was founded in 1992 by Scheck and Neufeld as part of a law clinic at Cardozo. It became an independent 501(c)(3) nonprofit organization on January 28, 2003, but it maintains institutional connections with Cardozo. Madeline deLone was the executive director from 2004 until 2020, succeeded by Christina Swarns on September 8, 2020.

The Innocence Project is the headquarters of the Innocence Network, a group of nearly 70 independent innocence organizations worldwide. One such example exists in the Republic of Ireland where in 2009 a project was set up at Griffith College Dublin.

Mission

The Innocence Project’s mission is “to free the staggering number of innocent people who remain incarcerated, and to bring reform to the system responsible for their unjust imprisonment.”

The Innocence Project focuses exclusively on post-conviction appeals in which DNA evidence is available to be tested or retested. DNA testing is possible in 5–10% of criminal cases. Other members of the Innocence Network also help to exonerate those in whose cases DNA testing is not possible.

In addition to working on behalf of those who may have been wrongfully convicted of crimes throughout the United States, those working for the Innocence Project perform research and advocacy related to the causes of wrongful convictions.

Some of the Innocence Project’s successes have resulted in releasing people from death row. The successes of the project have fueled American opposition to the death penalty and have likely been a factor in the decision by some American states to institute moratoria on criminal executions.

In District Attorney’s Office v. Osborne (2009), US Supreme Court Chief Justice Roberts wrote that post-conviction challenge “poses questions to our criminal justice systems and our traditional notions of finality better left to elected officials than federal judges.” In the opinion, another justice wrote that forensic science has “serious deficiencies”. Roberts also said that post-conviction DNA testing risks “unnecessarily overthrowing the established system of criminal justice.” Law professor Kevin Jon Heller wrote: “It might lead to a reasonably accurate one.”

The Innocence Project, as of June 2018, receives 55% of its funding from individual contributions, 16% from foundations, 16% from events, 8% from investments, and the remaining 5% from corporations, Yeshiva University, and other sources.

Work

The Innocence Project originated in New York City but accepts cases from other parts of the country. The majority of clients helped are of low socio-economic status and have used all possible legal options for justice. Many clients hope that DNA evidence will prove their innocence, as the emergence of DNA testing allows those who have been wrongly convicted of crimes to challenge their cases. The Innocence Project also works with the local, state and federal levels of law enforcement, legislators, and other programs to prevent further wrongful convictions.

All potential clients go through an extensive screening process to determine whether or not they are likely to be innocent. If they pass the process, the Innocence Project takes up their case, resources permitting. About 2,400 prisoners write to the Innocence Project annually, and at any given time the Innocence Project is evaluating 6,000 to 8,000 potential cases. In addition to their co-directors and a managing attorney, the Innocence Project has six full-time staff attorneys and nearly 300 active cases.

In almost half of the cases that the Innocence Project takes on, the clients’ guilt is reconfirmed by DNA testing. Of all the cases taken on by the Innocence Project so far, about 43% of clients were proven innocent, 42% were confirmed guilty, and evidence was inconclusive and not probative in 15% of cases. In about 40% of all DNA exoneration cases, law enforcement officials identified the actual perpetrator based on the same DNA test results that led to an exoneration.

Overturned convictions

As of January 2022, 375 people previously convicted of serious crimes in the United States had been exonerated by DNA testing since 1989, 21 of whom had been sentenced to death. Almost all (99%) of the wrongful convictions were males, with minority groups constituting approximately 70% (61% African American and 8% Latino). The National Registry of Exonerations lists 2,939 convicted defendants who were exonerated through DNA and non-DNA evidence from January, 1989 through January, 2022 with more than 25,600 years imprisoned.

According to a study published in 2014, at least 4.1% of persons overall sentenced to death from 1973 to 2004 are probably innocent. The following are some examples of exonerations they helped bring about:

Steven Avery was exonerated in 2003 after serving 18 years in prison for a sexual assault charge. After his release, he was convicted of murder.
Cornelius Dupree was convicted of sexual assault and robbery in 1980, and exonerated by DNA evidence in 2011 by the Innocence Project.
Douglas Echols and Samuel Scott were convicted in 1987 of sexual assault and robbery, and exonerated in 2002 by DNA evidence by the Innocence Project.
Clarence Elkins was convicted in 1999 for rape and murder, and exonerated by DNA evidence in 2005; defended by Ohio Innocence Project.
Ryan Ferguson was convicted in 2005 for a 2001 murder, and exonerated in 2013 because the prosecution withheld exculpatory evidence and the witnesses who testified against him recanted their testimony; defended by Missouri Innocence Project.
Glenn Ford was exonerated in 2014 in the murder of Isadore Newman. Ford, an African American, had been convicted by an all-white jury without any physical evidence linking him to the crime and with testimony withheld. He served 30 years on death row in Angola Prison before his release.
Darryl Hunt was exonerated in 2004 after serving 19+¹⁄₂ years in prison of a life sentence for the rape and murder of a newspaper copy editor, Deborah Sykes.
Michael Morton was convicted of murder in 1987, spent over 24 years in prison, and exonerated through DNA and withholding of evidence in 2011 with help from the Innocence Project. In 2013 his prosecutor was convicted of withholding evidence, agreed to disbarment, and spent 4 days in jail.
Anthony Porter was convicted of murder in 1983, and exonerated in 1999 by the Medill Innocence Project.
James Calvin Tillman was exonerated in 2007 after an investigation begun by the Innocence Project, and after serving 16+¹⁄₂ years in prison for a rape he did not commit. His sentence was 45 years.
Archie Williams was convicted in 1983 of sexual assault and sentenced to life without the possibility of parole, but was exonerated in 2019 due to DNA evidence after over three decades in prison.
Ken Wyniemko was convicted in 1994 of sexual assault, and exonerated in 2003 through DNA evidence by the Innocence Project.

Innocence Network

The Innocence Project is a founding member of the Innocence Network, a coalition of independent organizations and advocates, including law schools, journalism schools, and public defense offices that collaborate to help convicted felons prove their innocence. As of 2021, there were 68 organizations in the network, operating in all 50 US states and 12 other countries, and had helped exonerate 625 people.

In South Africa, the Wits Justice Project investigates South African incarcerations. In partnership with the Wits Law Clinic, the Julia Mashele Trust, the Legal Resources Centre (LRC), the Open Democracy Advice Centre (ODAC), the US Innocence Project, and the Justice Project investigate individual cases of prisoners wrongly convicted or awaiting trial.

Causes of wrongful conviction

Wrongful convictions are a common occurrence with various causes that land innocent defendants in prison. Most common are false eyewitness accounts, where the accused are incorrectly identified by viewers of a crime. This accounts for 69% of the exonerations that took place due to the Innocence Project, further proving that eyewitness accounts are often unreliable. This measure has proven to be inaccurate in many police lineups, as there is much bias, and suspects can be singled out based on their appearance and the frequency that they are placed in front of witnesses.

Additionally, 52% of the Innocence Project cases’ wrongful convictions have resulted from the misapplication of forensic science. These include faulty hair comparisons, arson artifacts, and comparative bullet lead analysis. These methods of evidence collection evolve as new technology arises, but said technology can take decades to create, making cases based on the faulty forensic science cases difficult to overturn.

In 26% of DNA exoneration cases—and more than double that number in homicide cases—innocent people were coerced into making false confessions. Many of these false confessors went on to plead guilty to crimes they did not commit (usually to avoid a harsher sentence or even the death penalty). Currently, there is a racial aspect of this issue where many black people are discriminated against during both their trial and while in jail. The hashtag #blackbehindbars has allowed those exonerated after false confessions to share their stories and the injustice they faced due to the failure of the criminal justice system.

Another large contributor of wrongful convictions is fabricated testimonies that falsely incriminate defendants. The Innocence Project has found that 17% of its cases have been caused by false testimonies, allowing the person who gave the testimony a shorter or better sentence while the accused face harsher repercussions. Many of these stories are given by inmates who have been given an incentive to falsely testify against certain people with rewards such as reduction of their sentences or leniency in prison.

Conclusion

The police focused soley on the Avery family, particularly Steven, since he was most likely going to be the recipient of a substantial settlement for his wrongful imprisonment. There were a few other individuals that were likely suspects that were totally ignored, the ex-boyfriend of Teresa Halbach and her roomate and Bobby Dassey and Steve Tadych. They all had opportunities and in some cases motives as well. The defense attorney is the first one to look at other possible suspects. As you watch the documentary unfold you just shake your head at not only the incompetence exhibited on both sides also the malfeasance exhibited by both sides. It was blatant, with little to no regard towards doing what is right. They also had no concern for any repercussions for their actions. There was no evidence tying Brandon Dassey to the case or that Teresa was ever in Steven’s trailer. He prosecution was based soley on coerced testimony made by him. I just don’t know how they justified it. How can you stab and cut someone’s throat with no blood being present on the scene. There was no DNA present either. They supposedly both raped her. They did so without the use of condoms (at least they were not mentioned in the testimony), yet there was no semen found anywhere either. It was Steven’s bedroom, so the presence of his semen would not have been an issue. However, they did not find any of his semen. Don’t forget that the two masterminds reposnsible for all these activities had IQs just above the idiot level. How could they possibly know what to do. How could they dispose of all the evidence and clean up the crime scene.

Just think about this for a second, they cleaned up all the blood and DNA from a grissly murder scene, and then they left a key for her car behind in the room. They also supposedly dragged Teresa out to the garage where they then shot her, after they had raped her, stabbed her and slit her throat in the trailer. So she was bleeding out while they dragged her all the the way down the hallway, plus a 100 feet from the trailer to the garage, where they not only shot her, then they dragged her back to her RAV4 where they then hit her with a hammer and put her in the back, for god knows what reason. Then they drove her body around the property, before they decided to bring her right back to the garage and the firepit where they chopped her up and put her in the burn barrel first. They then took the body parts out and spread them to the firepit and to several other areas, just to cover up the scene of the crime. During this whole time there is no trace DNA or blood left anywhere, except for the RAV4. Where Steve so obligingly left blood and other DNA samples. Not to mention that is the only place where blood was found for Teresa. No DNA of her’s was even found on her keys. He did this after he had made serial killers envious around the world with his crime scene cleaning techniques. What did he do this for, just to level the playing field?

There were so many inconsistencies in these cases. It made your head spin. Just to add a little more heartbreak to story, Steven’s mother just passed away. I am sure his father will be following behind her, very soon. I thought that the Kennedy family was cursed, they have nothing over the Avery family.

Resources

en.wikipedia.org, ” Making A murderer.” By Wikipedia editors; en.wikipedia.org, “Steven Avery.” By Wikipedia Editors; en.wikipedia.org, ” Brandon Dassey.” By Wikipedia Editors; en.wikipedia.org, “Kathleen Zellner.” By Wikipedia Editors;en.wikipedia.org, “Innocence Project.” By wikipedia editors;attorneyhamilton.com, “The Anti-Terrorism and Effective Death Penalty Act.”;

Addendum

Legal Terms: (wikipedia)

habeas corpus

is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.

The writ of habeas corpus was described in the eighteenth century by William Blackstone as a “great and efficacious writ in all manner of illegal confinement”. It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be brought before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond their authority, then the prisoner must be released. Any prisoner, or another person acting on their behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus. For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad (“protection of freedom”).

Habeas corpus has certain limitations. Though a writ of right, it is not a writ of course. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. In some countries, the writ has been temporarily or permanently suspended under the pretext of a war or state of emergency, for example by Abraham Lincoln during the American Civil War.

The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the British Habeas Corpus Acts “declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”.

The writ of habeas corpus is one of what are called the “extraordinary”, “common law“, or “prerogative writs“, which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove their authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.

en banc

In law, an en banc session is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller panel of judges. En banc review is used for unusually complex or important cases or when the court feels there is a particularly significant issue at stake.

Federal appeals courts in the United States sometimes grant rehearing en banc to reconsider the decision of a panel of the court (consisting of only three judges) in which the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court.^[4] In rarer instances, an appellate court will order hearing en banc as an initial matter instead of the panel hearing it first.

Cases in United States courts of appeals are heard by three-judge panels, randomly chosen from the sitting appeals court judges of that circuit. If a party loses before a circuit panel they may appeal for a rehearing en banc. A majority of the active circuit judges must agree to hear or rehear a case en banc. The Federal Rules of Appellate Procedure state that en banc proceedings are disfavored but may be ordered to maintain uniformity of decisions within the circuit or if the issue is exceptionally important.

Each federal circuit has their own particular rules regarding en banc proceedings. The circuit rules for the Seventh Circuit provide a process where, under certain circumstances, a panel can solicit the consent of the other circuit judges to overrule a prior decision and thus avoid the need for an en banc proceeding. Federal law provides that for courts with more than 15 judges, an en banc hearing may consist of “such number of members of its en banc courts as may be prescribed by rule of the court of appeals.” The Ninth Circuit, with 29 judges, uses this procedure, and its en banc court consists of 11 judges. Theoretically, the Ninth Circuit can render en banc decisions with all 29 judges participating; such a hearing would overrule a prior 11-judge en banc hearing on the same case. Though no rule exists barring a party from requesting such a hearing, none has ever been granted. The Fifth Circuit, with 17 judges, adopted a similar procedure in 1986. State of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019 (5th Cir. 1985) (en banc). The Sixth Circuit has 16 judges, but as of September 2016, has not adopted such a policy yet. The FISA Court sat en banc for the first time in 2017 in a case concerning bulk data collection.

Certiorari

In law, certiorari is a court process to seek judicial review of a decision of a lower court or government agency. Certiorari comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review. The term is Latin for “to be made certain”, and comes from the opening line of such writs, which traditionally began with the Latin words “Certiorari volumus…” (“We wish to be made certain…”).

Derived from the English common law, certiorari is prevalent in countries utilising, or influenced by, the common law. It has evolved in the legal system of each nation, as court decisions and statutory amendments are made. In modern law, certiorari is recognized in many jurisdictions, including England and Wales (now called a “quashing order”), Canada, India, Ireland, the Philippines and the United States. With the expansion of administrative law in the 19th and 20th centuries, the writ of certiorari has gained broader use in many countries, to review the decisions of administrative bodies as well as lower courts.

Denny Standard in Wisconsin

Denny mandates that the defense in any trial cannot suggest other suspects for the crime the defendant is accused of without being able to support that accusation with a possible motive from the new suspect, a proven opportunity for the suspect to commit that crime, and the ability to place them within proximity to the…..

In short, State v. Denny mandates that the defense in any trial cannot suggest other suspects for the crime the defendant is accused of without being able to support that accusation with a possible motive from the new suspect, a proven opportunity for the suspect to commit that crime, and the ability to place them within proximity to the crime scene. So, if Zellner wants to introduce a new suspect and can find someone with a motive, but not opportunity, then they do not meet the Denny standard. The same goes for a suspect with opportunity, but no motive or proximity to the crime scene.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is one of many pieces of “get tough on crime” legislation that Congress passed to favor prosecutors at the expense of the accused and the unjustly convicted. Sold as “reform” legislation to cure a nonexistent problem, the AEDPA hampers the ability of wrongfully convicted defendants, and those who were convicted after unfair trials, to regain their freedom.

The AEDPA was enacted in response to complaints that the writ of habeas corpus was being abused by prisoners who filed multiple petitions challenging their convictions on frivolous grounds, often years after their convictions became final. To the extent that those complaints had any merit at all, the extra work imposed on prosecutors and judges was offset by the opportunity for prisoners to raise legitimate challenges that they did not know about at the time they pursued an appeal.

AEDPA Restricts Appeal Process

The AEDPA “reformed” habeas corpus by limiting its effectiveness. The most troubling procedural changes require a prisoner to raise all claims in one collateral attack (in the form of a 2255 motion for federal prisoners or a 2254 motion for state prisoners) and to file that challenge within a year after the prisoner’s conviction became final. With very limited exceptions, the AEDPA prohibits “successive” collateral attacks.

In other words, Congress intended to give prisoners one and only one chance to raise a collateral challenge in federal court. Prisoners who want to file a successive challenge may do so only with the permission of a federal appellate court.

The one year statute of limitations for filing a collateral attack met with well-deserved criticism. Prisoners do not always have the resources to mount an effective challenge within the one year limitations period. They often do not learn that they have grounds for a collateral attack until after the year has expired.

It takes time to investigate the facts, research the law, and draft an effective challenge. The AEDPA makes it almost impossible for prisoners to take on that task without help from an experienced post-conviction attorney.

The AEDPA also narrowed the grounds for relief that are available under habeas corpus. Although a challenge can still be based on the violation of a constitutional right that resulted in an unfair trial or sentence, the other grounds on which a collateral attack can be based are limited by the AEDPA. In particular, the AEDPA substantially limits the circumstances under which a change in the law that favors a defendant can be used as the basis for a collateral challenge to a conviction. Review of state convictions is further hampered by the AEDPA’s limitation of federal reconsideration of facts (and, to some degree, legal issues) that were decided by a state court.

In addition to the “reforms” noted above, the AEDPA’s attempt to create an “effective death penalty” included the addition of a six month limitations period in death penalty cases. Congress apparently believed that an “effective” death penalty is one that results in faster executions, increasing the likelihood that an innocent defendant will be put to death.

Responding to complaints about the harshness of the law, Congress also “encouraged” (but did not require) states to appoint attorneys for death row defendants who want to make a collateral challenge to their convictions in federal court.

Common Sense and Ramblings In America

The Tragic Tale of Steven Avery

In other media

Persons featured

Avery family

Victims

Defense lawyers

Prosecution

Judges

Law enforcement

Private investigators

Early life

Early convictions

Wrongful attempted sexual assault conviction

Teresa Halbach murder

Prosecution

Appeals

Petitions

Early life

Murder of Teresa Halbach

Interrogation

Trial

Public response and appeals

Early life and education

Career

Founding

Mission

Work

Overturned convictions

Innocence Network

Causes of wrongful conviction

AEDPA Restricts Appeal Process

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In other media

Persons featured

Avery family

Victims

Defense lawyers

Prosecution

Judges

Law enforcement

Private investigators

Early life

Early convictions

Wrongful attempted sexual assault conviction

Teresa Halbach murder

Prosecution

Appeals

Petitions

Early life

Murder of Teresa Halbach

Interrogation

Trial

Public response and appeals

Early life and education

Career

Founding

Mission

Work

Overturned convictions

Innocence Network

Causes of wrongful conviction

AEDPA Restricts Appeal Process

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