America’s new favorite defense attorney is still fighting to win justice for Manitowoc County, Wisconsin, man Steven Avery, the subject of Netflix’s hit docuseries Making a Murderer.
Speaking with The Daily Beast Wednesday night from Milwaukee, Avery’s former counsel Dean Strang challenged the supposedly damning evidence used to convict Avery in 2007 for the murder of photographer Teresa Halbach, despite the plethora of holes that have outraged viewers since the series’ debut.
“This is a case where I think substantial, real, and reasonable doubts remain about whether an innocent man got convicted,” declared Strang.
Earlier in the day, the bespectacled attorney found himself sparring with former Calumet County District Attorney Ken Kratz on Fox News as both men argued over the case they debated, in and out of court, a decade ago.
Among the contested items of evidence: the bleach-stained jeans of Avery’s then-16-year-old nephew Brendan Dassey, who told investigators in a controversially obtained confession that he helped Avery rape, kill, and burn Halbach’s body; bones identified as Halbach’s found in Avery’s burn pit—but which were most likely burned elsewhere, then moved; leg irons and handcuffs supposedly purchased by Avery which were never admitted as evidence in Avery’s trial; and *67 calls made from Avery to Halbach, who had requested she return to the Avery salvage yard after previously photographing the family’s vehicle for Auto Trader Magazine.
Kratz, meanwhile, emphasized what he described as the case’s “most persuasive evidence”: that investigators found Avery’s DNA on the hood latch of Halbach’s RAV4, which had been discovered on the Avery property concealed in branches. The only problem: None of Avery’s fingerprints were found in or on the car.
Speaking with The Daily Beast, Strang scoffed at Kratz’s conclusion.
“Mr. Kratz feels aggrieved that the evidence of Steven’s DNA on the hood latch, or under the hood, is left out of the film. But there were also no fingerprints there. If the DNA transfer was from his skin to the hood, where are the fingerprints? And you have, probably, both hands on the hood—potentially eight or 10 fingers that could leave at least a partial print.”
The fingerprint issue also raises questions about one of the prosecution’s primary pieces of physical evidence, he says: Avery’s blood, found smeared inside Halbach’s car, supposedly from a cut on his finger—and yet, no fingerprints.
“You have a problem because if he’s wearing gloves, how’s he bleeding?” said Strang, incredulous. “How’s he bleeding externally? And where are the bloody gloves? That became a problem for the state because if he’s wearing gloves, that explains why there’s no fingerprints. But then, how is there blood? If he’s not wearing gloves, blood could be dripping from a cut, okay. But then why are there no fingerprints?
“Look, there aren’t always fingerprints,” he continued. “But that is a problem, because the state thinks he drove the car. You can’t do that without grabbing the steering wheel. You can’t turn the key in the ignition without potentially touching things. You can’t open a car door without using your hands and leaving a fingerprint, potentially.”
Unfortunately for Avery and co-counsel Jerry Buting, the defense’s framing theory—that Avery’s blood had been planted inside the car by overeager law enforcement officers trying to ensure his conviction—was stymied in turn by four letters: EDTA. If Avery had been framed, the anticoagulant used for storing blood in vials should have been detected in the blood sample. An FBI test for the preservative, however, came back negative.
“Initially we were told that the tests hadn’t been done since the O.J. Simpson trial, that they couldn’t be done, it would take weeks or months,” said Strang of the FBI laboratory test the prosecution used to argue that there had been no tampering with Avery’s blood sample.
“We had to have a hearing out of the jury’s presence to see if it was going to be admissible,” he said. “We had no chance at that point to do independent testing, or even to react terribly well to it because we’re being handed the report during trial and then, boom—[expert witness] Mark Lebow is on the stand the next morning.”
At the time of Avery’s trial, Wisconsin state law did not require a Daubert test to hold expert testimony to a higher level of scrutiny—a standard he notes that the state did begin enforcing in the last few years.
“Jerry did try to show that this wasn’t even relevant evidence—that it didn’t clear Wisconsin’s low bar [of admissibility],” Strang explained. “But the judge ruled against us on that. Jerry, in front of the jury, then tried to establish that there were reasons to view the FBI’s hasty work as unreliable.
“I think it was a point at which momentum shifted,” he sighed. “And maybe not fairly.”
Strang and Buting also found their hands tied when they attempted to introduce four alternate possible suspects who might have killed Halbach. But Wisconsin case law requires defense to prove motive in said suspects, which they could not do.
“That is a significant asymmetry, because the prosecution in a murder case and most other cases in Wisconsin never has to prove motive against the person on trial,” Strang said. “But Steven Avery didn’t have any motive, either! He had nothing against [Halbach]. She hadn’t done anything to him. There was nothing to suggest he had any motive or some reason to want her dead—and the state doesn’t have to prove motive.”
Strang declined to identify the four unnamed possible suspects he and Buting proposed in their motion, or confirm that they were the quartet Avery later named in a 2009 appeal filing pointing to Dassey’s brother Bobby, stepfather Scott Tadych, and Avery’s own brothers, Charles and Earl.
“I’ve never seen that filing,” said Strang, who admits he “unplugged” soon after the Avery conviction citing the exhausting seven-week trial. It was prudent, then, for new lawyers to take up Avery’s cause post-trial. “I don’t want to undermine him,” Strang said, declining to comment on Avery’s accusations.
Like every Making a Murderer obsessive, Strang took note of the revelation this week by filmmakers Moira Demos and Laura Ricciardi that an unidentified juror believes Avery was framed, and that said juror feared for their own safety if they did not vote to convict during the 2007 trial. He declined to comment on whether that juror’s story might help spur a second chance for Avery.
He confirmed that he and Buting had concerns about the juror revealed to be the father of a Manitowoc County sheriff’s deputy—but not as much as they had over the six potential jurors they struck during jury selection, exhausting their maximum strikes. “You don’t pick a jury. All you can do is unpick the people you think are least fit to serve on the jury,” he explained. “But the concerns about six other potential jurors were greater.”
Although he vividly remembers details of the Avery case, Strang discovered material he’d never before seen regarding the Dassey case that clearly now troubles him. In the documentary, he expresses guilt over seeing Dassey drown in the legal system that would eventually send him to prison for life. The teenager’s story is Making a Murderer’s more heartbreaking thread, as taped phone calls to his mother and footage of his confessional sessions with investigators indicate he has no concept of how badly he’s incriminating himself.
Strang was particularly shocked, he says, watching video of Dassey’s session with the investigator hired by his own defense. That attorney, Len Kachinsky, has since admitted to screwing up his own client’s case by serving him up to federal investigators, whose taped interrogations of Dassey also alarmed Strang.
“Why do we allow the police to pull a developmentally disabled, immature, unsophisticated boy out of class without his parents and take him off and interview him in a manipulative, psychologically sophisticated way with two intelligent adult men—teamed up against a developmentally delayed 16-year-old, naïve boy?” Strang demanded.
How possible was it that Dassey, as the film suggests, instead fabricated the Halbach rape and murder scenario used to convict him because he’d seen the movie Kiss the Girls? “I think there’s a good chance of that,” said Strang. “And the similarities are eerie. That’s a movie I think that would have made a pretty graphic impression on somebody his age. He probably shouldn’t have been watching it.”
There is one answer for the kinds of questions and inconsistencies that plagued both the Avery and Dassey cases, he says: reasonable doubt.
“Guilt has to be proven beyond a reasonable doubt. If there is reasonable uncertainty, we err on the side of liberty. There is a question here of whether that standard was really, faithfully applied—or whether the jury could, because of all the awful and largely inadmissible pre-trial information they heard over and over and over again in the more than a year leading up to this trial.”
Strang hinted that he and Buting may return to Avery’s side to fight for a new trial that could exonerate Avery—again.“Jerry and I both have always been in touch with Steven, on and off,” said Strang, who now leads his own law firm, Strang Bradley LLC in Madison. Buting is a partner in Buting, Williams & Stilling, S.C., an hour away in Brookfield, Wisconsin. “It’s clear that he probably needs formal legal representation [for] the specific, concrete things that a lawyer can do in the coming weeks and months.
“It would depend on what he wants, for one, and two, whether any future legal steps might involve examining whether Jerry and I dropped the ball in some way—whether we were inadequate or the legal term is ineffective, in some way. If some possible avenue of relief might be raising questions about our performance or criticizing our performance then we shouldn’t be the ones to do that.
“He’s not going to be able to pay anybody,” he added. “Money isn’t in the equation. But what is, right now in our eyes, is, what’s best for Steven?”
Strang readily admits he thinks it’s possible that Avery is guilty. But, he argues, “If our system worked on convicting people on maybes, then everybody could pat themselves on the back and go out and have a beer, convicting a man on a maybe. Our system isn’t supposed to work on convicting people on maybes.
“In our system, if we live the values we profess, that means you get to keep your liberty,” he continued. “That means you don’t spend the rest of your life in a cage. Could he be guilty? Sure, he could. Do I think he was proven guilty? No. Do I think there’s a real strong chance he could be innocent? Yes. But that’s just me. I wasn’t asked to decide.”