By Stephanie D'Atri, Hatch, Little & Bunn L.L.P.
Most of you are familiar with the popular Netflix documentary, “Making a Murderer,” produced by filmmakers Laura Ricciardi and Moira Demos but, in case you are not, here is an abbreviated summary of what the 10-part, real-life series depicts:
Steven Avery of Manitowoc County, Wisconsin, was convicted of the sexual assault, attempted murder, and false imprisonment of Penny Beerntsen in March of 1986. After serving approximately 18 years in prison, Avery was exonerated by DNA evidence and released in September of 2003. The Wisconsin State Legislature introduced “The Avery Bill” several months later to review prosecutorial and police practices and recommended that Avery be awarded $450,000.00 as compensation for his wrongful conviction. Avery also filed a civil lawsuit against Manitowoc County, the Manitowoc County District Attorney who prosecuted him in the Beernsten case, and the Manitowoc County Sheriff, based upon allegations of personal hostility and obstruction of justice – among other things, he claimed that they should have considered the actual assailant, who was known to them at the time and who later confessed to Beernsten’s attack in 1995, over 8 years before Avery was released. Sergeant Andrew Colborn with the Manitowoc County Sheriff’s Office was notified of this confession, but he failed to act and Avery remained in prison until 2003. At least six individuals related to Avery’s civil case were deposed in October of 2005 for purposes of the civil lawsuit, including Sergeant Colborn and Lieutenant James Lenk from the Manitowoc County Sheriff’s Office.
On October 31, 2005, while depositions and discovery in Avery’s civil case were underway, a local photographer by the name of Teresa Halbach drove to Avery’s residence to photograph a van for Auto Trader Magazine. After not hearing from her for several days, Halbach’s family contacted the Calumet County Sheriff’s Office to report her disappearance. On November 5, 2005, volunteers aiding Halbach’s family in the search for their missing daughter discovered Halbach’s 1999 Toyota Rav4 vehicle at the Avery auto salvage and towing yard in Manitowoc County. Investigators obtained a search warrant covering the salvage yard and Avery’s trailer. Firearms were recovered during one of the many searches at Avery’s property and, on November 9, 2005, Avery was arrested for being a felon in possession of a firearm. Investigators for Calumet County, rather than Manitowoc County, were charged with handling the investigation of Halbach’s disappearance to reduce any impropriety.
Calumet County Sheriff Jerry Pagel held several press conferences to update the public as searches of Avery’s residence continued, including a press conference on November 10, 2005. Sheriff Pagel, sitting alongside the Calumet County special prosecutor assigned to Avery’s case, Ken Kratz, said as follows:
“Well, as I am sure everybody is aware, the scope of this investigation is now criminal in nature and we are classifying it as a homicide investigation. It appears that an attempt was made to dispose of a body by an incendiary means… Pieces of human… teeth were found on the Avery property… the key that was used to start Teresa Halbach's vehicle was found in Steven Avery’s bedroom… the Manitowoc County Sheriff Department’s role in this investigation was to provide resources for us when they were needed. As we needed items on the property to conduct searches, they provided that piece of equipment and that’s their role and their only role in this investigation…” (emphasis added).
Sheriff Pagel appears to go out of his way to explain and overemphasize the limited role of the Manitowoc County Sheriff’s Department. Yet, despite being witnesses and deponents in Avery’s civil case, Lieutenant Lenk and Sergeant Colborn both actively participated in the investigation of Halbach’s disappearance. Sergeant Colborn, in particular, searched Avery’s bedroom and emptied his nightstand during an initial search of the Avery property. He did not uncover any evidence at that time and no Calumet County deputies were present. During a subsequent search, Lieutenant Lenk discovered Halbach’s Toyota Rav4 key lying in plain sight on the floor in Avery’s bedroom. A deputy with the Calumet County Sherriff’s Office was present for this second search, along with Sergeant Colborn. Despite Sheriff Pagel’s assertion that the Manitowoc County Sheriff’s Department only provided resources to aid in searches by Calumet County detectives, Lieutenant Lenk and Sergeant Colborn both participated in searches of Avery’s property that ultimately yielded key (pun intended) evidence in the investigation.
On February 27, 2006, several months after Avery’s arrest, detectives interviewed Avery’s 16-year-old nephew, Brendan Dassey. Dassey, who had a low IQ, was interviewed at his high school without a parent present. After several conversations with detectives, Dassey admitted to taking part in the crime, for which he was charged with first-degree intentional homicide, mutilating a corpse, and first-degree sexual assault under the Wisconsin penal code.
In a pre-trial press conference on March 1, 2005, Kratz and Sheriff Pagel explained these new developments revolving around Avery’s nephew:
Pagel: “Late this afternoon, a 16-year-old juvenile male, who was a relative of Steven Avery, was taken into custody and he is currently being detained at a juvenile facility. The 16-year-old juvenile admitted his involvement in the death of Teresa Halbach as well as Steven Avery’s involvement in this matter.”
Kratz: “Sheriff Pagel and I will be releasing to the media the specifics of this case. I will be filing, as I mentioned, a criminal complaint tomorrow and by 2:00 p.m. that will be available for release to all of you.”
A criminal complaint was in fact filed on March 2, 2006, the day after Brendan Dassey was detained. Kratz and Sheriff Pagel then held a follow-up press conference, at which time Kratz announced as follows:
“I know that there are some news outlets that are carrying this live and perhaps there may be some children that are watching this. I'm going to ask that if you are under the age of 15 that you discontinue watching this press conference…
We have now determined what occurred some time between 3:45 p.m. and 10 or 11 p.m. on the 31st of October. 16-year-old Brendan Dassey, who lives next door to Steven Avery in a trailer returned home on the bus from school about 3:45 p.m. He retrieved the mail and noticed one of the letters was for his uncle, Steven Avery. As Brendan approaches the trailer, as he actually gets several hundred feet away from the trailer, a long, long way from the trailer, Brendan already starts to hear the screams. As Brendan approaches the trailer, he hears louder screams for help, recognizes it to be of a female individual, and he knocks on Steven Avery's trailer door. Brendan says that he knocks at least three times and has to wait until the person he knows is his uncle, who is partially dressed, who is full of sweat, opens the door, and greets his 16-year-old nephew. Brendan accompanies his sweaty 43-year-old uncle down the hallway to Steven Avery's bedroom and there they find Teresa Halbach completely naked and shackled to the bed. Teresa Halbach is begging Brendan for her life. The evidence that we've uncovered establishes that Steven Avery at this point invites his 16-year-old nephew to sexually assault this woman that he’s had bound to the bed. During the rape, Teresa is begging for help, begging 16-year-old Brendan to stop, that you can stop this. 16-year-old Brendan, under the instruction of Steven Avery, cuts Teresa Halbach’s throat but she still doesn’t die.” (emphasis added.)
Did Kratz go too far? Rule 3.6 of the North Carolina Rules of Professional Conduct, which is modeled after the American Bar Association’s Model Rules of Professional Conduct, governs a lawyer’s duties and permissible conduct as it relates to trial publicity. Specifically, “a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Protecting the right to a fair trial is of utmost importance. Comment 6 of this Rule further explains that criminal jury trials, in particular, “will be most sensitive to extrajudicial speech.”
So what may a lawyer disclose? A lawyer may announce the offense and identity of the persons involved, report that an investigation is underway, provide any information contained in the public record, request assistance in obtaining evidence, and detail the results of an investigation. A lawyer may also provide “a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest.” In criminal cases in particular, a lawyer may also provide the identity, residence, occupation, and family status of the accused, any information necessary to aid in the apprehension of the accused, the time and place of the arrest, the identity of the investigating and arresting officers or agencies handling the investigation, and the length of the investigation.
Beyond this, prosecutors have special responsibilities under Rule 3.8 of the North Carolina Rules of Professional Conduct that they must follow in all criminal cases: “Except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose,” prosecutors must “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.”
Page 4 of the criminal complaint that Kratz filed on March 2, 2006, sets forth the following allegations related to Dassey’s arrival upon Avery’s trailer: “Dassey stated that on October 31, 2005, he went to pick up the mail on his bike and, upon returning, he saw that there was a letter for Steven Avery. Dassey stated that on his way to Steven Avery’s trailer, he passed a burn barrel located on Avery’s property. Dassey stated that he looked into the burn barrel and observed a cell phone and camera inside of the barrel. Dassey stated that while approaching the Avery residence on his bike, he heard screams for help coming from Avery’s trailer.”
The criminal complaint does not mention that Dassey was “several hundred feet away from the trailer.” It also does not indicate that Dassey was “a long, long way” from Avery’s trailer as Kratz specifically informed the public during his pre-trial statements on March 2, 2006. Kratz employs a story-telling technique during his press conference and utilizes descriptive words that embellish the actual information presented in the criminal complaint. Even if these words were true, they were absent from the charging documents and do not appear to be necessary to inform the public about the ongoing investigation. They also hardly serve a legitimate purpose other than inciting and playing upon the emotions of potential jurors and implicating Avery as the only possible suspect in Halbach’s murder before a trial even begins.
Dassey apparently made a statement to the investigating detectives that “Avery was covered in sweat.” The criminal complaint, however, does not indicate that Avery was “partially dressed” when he answered the door, nor does it indicate that Halbach “beg[ed]” for help. Rather, this information also appears to have been inserted as another descriptive and unimportant embellishment by Kratz during his pre-trial press conference. Even if these statements were also true, the effect – whether intended or unintended – seems to have been to heighten public confirmation of Avery’s involvement in Halbach’s murder in the very early stages of the investigation.
What’s worse, Kratz begins the press conference by directing all persons under the age of 15 to stop watching, inferring that the events he intends to describe will be too frightening for young ears. He immediately follows this warning by letting the public know that “we have now determined what occurred” (emphasis added). In six carefully chosen words, Kratz uncloaks the sacred pre-trial armor of innocence and sends a clear message that Avery and Dassey have already been “determined” guilty – and not just by the prosecution and the detectives. Instead, by using the first-person plural pronoun, “we,” Kratz intentionally includes his audience as part of the group who have already “determined” the events implicating Avery and Dassey. The very safeguard that Kratz is ethically required to protect with reasonable care is broken by this cavalier and presumptive proclamation. Perhaps these words didn’t have a quantifiable impact on Kratz’s captivated audience of potential jurors, many of whom were already familiar with Avery as a result of his 1986-overturned conviction, but Avery’s lawyers certainly believed that they caused enough of a problem.
I had the unique pleasure of meeting Avery’s lawyers, Dean Strang and Jerry Buting, while they were speaking at an engagement in Durham, North Carolina. When asked to discuss venue, Strang said that all but one person in the Calumet County jury pool believed that Avery was guilty before the trial even began. The trial ultimately occurred less than 45 miles outside of Manitowoc County in none other than the county in which the Halbach family resided – Calumet County. During a seminar for the Wisconsin Association for Justice in March of 2016, Strang further explained that, given the pre-trial publicity, “there was not one of the 71 other counties in Wisconsin that we could have gone to get (an impartial) jury... It was pointless to try to go to another county to get a jury.” Regardless of intent, the numerous pre-trial statements appear to have played at least some role in stripping Avery of his right to a presumption of innocence.
Beyond Kratz’s own statements, did he have any obligation to control the statements made by Sheriff Pagel in the November 2005 press conference? As the District Attorney assigned to prosecute this case, Kratz was aware, or should have been aware, that Sergeant Colborn actively searched Avery’s bedroom and that Lieutenant Lenk discovered the key next to Avery’s nightstand during a search on November 8, 2005. Kratz did not affirmatively claim that the Manitowoc County Sheriff’s Office had no role in the investigation other than providing resources during this press conference, but he sat alongside Sheriff Pagel, who failed to disclose the extent to which Sergeant Colborn and Lieutenant Lenk were involved. Rule 3.8 requires a prosecutor to exercise “reasonable care” to prevent investigators from making extrajudicial statements. Does this Rule affirmatively require Kratz to correct and/or address Sheriff Pagel’s statement that the Manitowoc County Sheriff’s Office had no role other than providing resources and equipment used during searches at Avery’s property? Kratz’s decision to sit quietly after hearing this gross misstatement may not have been a blatant attempt to circumvent his ethical obligations, but they also seem contrary to the intent of this Rule.
In the wake of Making a Murderer, Kratz explained to USA TODAY NETWORK-Wisconsin that, “as my comments fit within the rules, there was no professional sanction imposed… I made no attempt to poison the jury pool and in fact made no further comment until the Avery trial began, as I recall.” Kratz may not genuinely believe that he violated his ethical obligations, but he also commented that “if I had it all to do over again, I would have simply released the criminal complaint rather than making a verbal statement. Not because I was not allowed to make the comments I did, but due to the criticism I received in the 10 years since.”
I guess Kratz wants the public to find him innocent of any ethical violations unless he is “determined” guilty by the Wisconsin Bar… Oh, and in case you were wondering, Avery and Dassey were both convicted in 2007.
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