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Sunday, April 20, 2014 |  Madison, WI: 60.0° F  Mostly Cloudy
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A new book revisits Steven Avery's conviction for a crime he didn't commit
The wronged guy

Steve Avery with his family the day before the arrest.
Steve Avery with his family the day before the arrest.
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Editor's note: What follows is drawn from Unreasonable Inferences: The True Story of a Wrongful Conviction and Its Astonishing Aftermath (Volume 1), by Michael Griesbach, a prosecutor with the Manitowoc County District Attorney's Office. Excerpted with permission.

I've been a prosecutor for 22 years, and I thought I'd seen it all. I've been called to crime scenes in the middle of the night to view victims with gunshot or stab wounds lying in pools of congealing blood. I've comforted overwrought rape victims paralyzed by fear so they could muster the courage to take the stand.

But none of that prepared me for the Steven Avery case, where the good guys were sometimes the bad guys and the bad guys the good. It's a case of violent crime with a mind-numbing twist, when a falsely convicted man was freed, only to be convicted again. But mostly, it's a case about innocence and guilt.

Tom and Penny Beerntsen made their home in Manitowoc, Wisconsin - a city of 38,000 on the western shore of Lake Michigan.

Penny would testify months later that it was precisely three o'clock that afternoon, on July 29, 1985, when she removed her red-and-white-striped T-shirt and got ready for her run. She said goodbye to Tom and the kids and started jogging north along the smooth wet sand at the edge of the water - barefoot in her bikini.

She made her way through Neshotah Park and crossed into a state forest a few minutes later. Point Beach State Forest transforms Lake Michigan's shoreline into an isolated wilderness. Undulating rows of sand dunes run like waves parallel to the shore, hiding from view whatever occurs in their troughs.

Penny passed a scraggly-looking man just beyond the public part of the beach, and despite temperatures in the mid-'80s, the man was wearing a leather jacket. Kind of odd given the temperature, she thought.

"Nice day for a jog," the man had said.

"Yes, it's a beautiful day," Penny replied over her left shoulder as she jogged past.

Thirty minutes later on her way back to the park, she spotted the odd-looking man again. He'd walked a half-mile further north, well into the wilderness, and was standing by a stubby poplar tree 10 feet from the water. The man's face looked different this time. He looked determined - determined to do something terrible.

Twenty minutes later, Penny was naked, bloodied and badly bruised, barely able to move. She rolled onto her hands and knees and tried to get up. She started crawling, but halfway to the water was too weak to go on. She looked down at her hands and wondered where all the blood came from, then lost consciousness briefly.

When she came to Penny resumed crawling toward the water, where she began washing the blood off her face. Then she saw a man approaching - it was her husband. Tom Beerntsen bolted toward his wife and lifted her into his arms. "Oh, my God, what happened?"

"A man tried raping me, Tom, he tried to kill me!"

Tom Beerntsen ran down the beach with his wife in his arms. An ambulance was waiting when they made it back to the parking lot, and the EMTs lifted her inside and rushed her to the hospital, sirens wailing.

Upon hearing the assailant's description, the deputy thought immediately of Steven Avery, a local ne'er-do-well with a history of bad behavior. He had committed crimes of domestic violence against his fiancée, rammed into the car of a deputy's wife and accosted her at gunpoint, and burned a cat. Avery wasn't nearly as tall as the man described, and his eyes weren't the right color, but that didn't matter to the sympathetic young female deputy.

After being identified by Beerntsen from a photo array, Avery was arrested and charged with first-degree sexual assault and attempted murder. Denis Vogel, the Manitowoc County DA, filed a petition to have Avery "preventively detained," and even though Vogel knew the crimes Avery was accused of did not meet the statutory standard, the intake judge agreed.

His trial began on Dec. 9, 1985, just two weeks before Christmas. The prosecution's case hinged almost entirely on Penny's dicey identification of her assailant in the face of an impressive alibi by the defense. But by placing the brutal details of the assault in front of them no less than three separate times, Vogel hoped the jurors would overlook the scantiness of his evidence and decide the case based primarily upon their emotions.

Jim Bolgert, Avery's attorney, called one witness after another to hammer home the alibi. They each repeated the same refrain: Steve couldn't have assaulted Penny Beerntsen - we saw him at the Salvage Yard that day. Avery and his family were adamant that he came home right after Divorce Court ended at 3:30. The assault began at 3:50, meaning he would have had just 20 minutes to drive 10 miles to the beach, shuffle a half-mile up the sand, and position himself to pounce on his prey. It was impossible.

Five days after the trial began, Bolgert anxiously awaited the jury's decision. Not only did he believe his client was innocent, he also believed the jury would find him not guilty - the alibi was that strong.

The winter sun was already low in the sky when the jailers walked Steve across the courtyard to receive his verdict. The lawyers feigned calm and put their game faces on as the jurors solemnly filed into the courtroom with their heads bowed down.

Judge Fred Hazlewood addressed the foreman: "Has the jury reached a verdict?"

"Yes, your honor."

The courtroom was silent as Judge Hazlewood leafed through the verdict forms.

"I'm not going to drag this out," he said. "The verdict of the jury with regard to the charge of first-degree sexual assault: 'Guilty.' With regard to the charge of false imprisonment: 'Guilty.' With regard to the charge of attempted murder in the first degree: 'Guilty.'"

It was a clean sweep for the prosecution.

Not long afterward, Steven Avery was escorted through three sets of steel gates inside Dodge Correctional Institute in Waupun, and as he walked further into the labyrinth each door clanged shut. It would be 18 years before his conviction was overturned.

In the late 1980s, the science of deoxyribonucleic acid, DNA, was just beginning to seep into the practice of law, and the nation's top-notch criminal defense attorneys immediately grasped its potential. They saw in DNA a great new hope for wrongly convicted defendants who had exhausted their remedies for relief in the courts.

Advances in technology during the late 1990s and the first years of the new century allowed scientists to examine ever-smaller samples of biological material for DNA, and the faculty and students at the Wisconsin Innocence Project hoped to use the new technology to uncover hard proof that Avery was innocent.

On a warm summer night in 1985, a nurse had retrieved 13 loose pubic hairs from Penny Beerntsen's body, any of which could have been left behind by her assailant. Now, 18 years later, the lab analyst observed that only two of the hairs contained a sufficient amount of DNA for testing. The DNA from one of the hairs matched Penny Beerntsen, but the DNA from the other one matched neither Penny nor Avery.

The analyst ran the DNA profile against the state and federal databases and waited for the reply. She received a hit! The DNA profile on the final hair - and the final hope for Steven Avery - matched a convicted sex offender by the name of Gregory A. Allen, a sex predator who was serving a 60-year prison sentence for a brutal rape he committed 10 years after he assaulted Penny Beerntsen.

Avery was released from prison on the morning of Sept. 11, 2003, amid clear blue autumn skies. Television and print reporters flocked to Stanley Correctional Institute in northwestern Wisconsin at the appointed time.

Appearing the day after he was released on a local TV station's nightly news program, Avery was all smiles as he relaxed in his house trailer and popped open a beer.

I first became a prosecutor in the Manitowoc County District Attorney's Office in 1991, so I wasn't involved when Steven Avery was prosecuted six years earlier.

But when DNA proved in 2003 that someone else committed the assault, I began to look into the circumstances surrounding his wrongful conviction. It felt like being in the middle of a storm. Each revelation was more disturbing than the last one, and taken together, they suggested that the former sheriff and DA might have knowingly sent an innocent man to prison while letting the real assailant go free.

Two summers before he attacked Penny Beerntsen, Gregory Allen had lunged at another woman on the same beach, and the criminal complaint charging him was in the Avery file. Why was it there? Did it mean that District Attorney Vogel knew Allen, and not Avery, was the perpetrator of the subsequent crime? How could he not make the connection?

Some of the staff in our office told me that from the very beginning they thought Allen, not Avery, was the assailant. But Vogel, who left the office shortly after Avery was convicted, had told them Allen had an alibi. Like so much else in this case, this turned out to be untrue.

When these revelations came out, my boss asked the state Justice Department to conduct an independent review. On Dec. 17, 2003, Attorney General Peg Lautenschlager faxed us her report (PDF).

The investigators had uncovered evidence of egregious conduct, but the attorney general ignored it - she effectively whitewashed the entire affair.

Avery's exoneration brought smiles to the faces of those who over the years believed so firmly in his innocence and fought tenaciously for his release. And it led to the creation of a state task force that crafted a series of reforms aimed at reducing wrongful convictions; these were passed by the Legislature with broad bipartisan support.

But from the moment Steven Avery walked out of prison, the courthouse crowd started taking bets on when he'd be back in. They knew what he was like before.

Avery had another problem, one not shared by most former offenders. Because his conviction had been vacated, when he walked out of prison he wasn't placed on parole. That meant no supervision, no counseling, no weekly meetings with a parole agent to keep tabs on him, and no support.

There were signs that Avery was in trouble. He reminisced with a Milwaukee Journal Sentinel reporter about how he used to sit on a picnic bench in the prison yard and count the jets flying by. "Sometimes, I feel like it's easier in there," he said. "Some days, just put me back there, get it all over with."

Teresa Halbach's mother started worrying when she hadn't heard from her daughter in three days. The 25-year-old freelance photographer's last shot that day was of a maroon Plymouth Voyager that Steven Avery was putting up for sale. Halbach never left the Avery Salvage Yard. She was tied up, raped, knifed, shot to death - and then cut into pieces and burned.

Media helicopters circled overhead when I arrived on Nov. 5, 2005, as nearly 200 police officers from three counties and the State Patrol conducted a massive search for what everyone feared would be Teresa's body. I remember gathering information from detectives for a search warrant and wondering where in the midst of the countless junked cars the killer had hidden the body.

As darkness fell, a light drizzle turned into a cold, driving rain. A mobile unit from the State Crime Lab with a couple floodlights and a space heater served as the command post. The rain got heavier as the night wore on, and the flimsy transparent plastic that served as the canopy for the crime lab unit flapped noisily in the gusty wind.

I'll never forget the eerie feeling evoked by the shrill sound of police dogs loudly barking as the search continued late into the night. Finally one of the dogs hit on a fire pit containing tooth fragments and bones that a forensic anthropologist later identified as belonging to an adult human female.

DNA tests confirmed that the bones belonged to Teresa.

News of Teresa's disappearance had already garnered some national media attention, but when it became known that the man suspected of killing her had spent 18 years in prison for a crime he didn't commit, the story took off. It was, and still is, the only time in the nation's history when an exonerated person was later arrested for a violent crime, and the grisly details of the murder guaranteed it a national audience.

Steven Avery called into the Nancy Grace show on CNN a few days after the human remains in the fire pit were identified. Holed up at the family cabin up north, he proclaimed his innocence, insisting he was being set up by the Manitowoc County Sheriff's Department in revenge for his $36 million lawsuit.

Avery was arrested on the same day that Gov. Jim Doyle was scheduled to sign into law the bill of reforms that bore his name. The ceremony was promptly called off and "the Avery Bill" was rather blandly renamed the "Criminal Justice Reforms Package."

On March 18, 2007, Steven Avery was convicted again - this time of Teresa Halbach's murder. Three months later, he was escorted through the gates at Dodge Correctional Institute in Waupun. The doors clanged shut again.

Since 1989, more than 250 wrongfully convicted persons have been exonerated by DNA testing in the United States. Seventeen of them served time on death row before their convictions were overturned.

It's impossible to know how many other wrongful convictions remain undetected since many criminal convictions are secured without physical evidence, leaving nothing to be tested for DNA. In fact, nearly a quarter of the cases closed by the national Innocence Project since 2004 were closed because of lost or missing evidence.

How many wrongful convictions are caused by official misconduct? No doubt honest mistakes account for many of them, but the Innocence Project estimates that police and/or prosecutorial misconduct were factors in 37 of the first 74 exonerations uncovered by DNA. The misconduct includes deliberate suggestiveness in identification procedures; mishandling, mistreatment or destruction of evidence; withholding of evidence from the defense; coercion of false confessions; and the use of unreliable government informants. Inexcusably, prosecutors whose misconduct factored into wrongful convictions almost always go unpunished and often even advance in their careers.

In response to the recent spate of high-profile exonerations, including Steven Avery's, the American Bar Association amended its Model Rules of Professional Conduct to include a section entitled "Special Responsibilities of a Prosecutor." Reminding prosecutors that they have "the responsibility of a minister of justice, and not simply that of an advocate," the model rule provides that if a prosecutor knows of clear and convincing evidence that a convicted person is innocent, he or she must promptly seek to remedy the conviction by disclosing the evidence to the defendant and to the court.

In the last few years, Wisconsin, New Jersey, North Carolina and several large city police departments throughout the country have implemented new procedures that have proved successful in improving the accuracy of eyewitness identifications.

In Wisconsin, the Avery Task Force inspired legislation that requires every police agency in the state to adopt new guidelines on identification procedures. The legislation also sets policies for post-conviction DNA testing.

But while such procedural safeguards may help, they don't get to the root of the problem. Larger issues are at stake.

Addressing a roomful of federal prosecutors in Washington, D.C., in 1940, U.S. Attorney General Robert H. Jackson began by defining the nature of the problem:

"It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peacetime forces known to our country. The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous.... While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."

Jackson closed by suggesting at least part of the solution:

"A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility."

None of us who work in the justice system is perfect, but as a court instruction charges jurors before they begin deliberations, we "have been called upon to act in the most important affairs of life," so we must try our hardest to do what's right.

Michael Griesbach will discuss his book Unreasonable Inferences at Booked for Murder on Saturday, Feb. 26, at 1 pm. [Note: The print version of this article incorrectly referred to Feb. 26 as being a Sunday.

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