‘Making A Murderer’: A Thorough Look At The Case That Put An Innocent Man In Prison For 18 Years

While the trial in Netflix’s popular crime documentary Making a Murderer takes place in 2006, the story behind it spans back all the way to 1985, when Steven Avery was first jailed for the sexual assault and attempted murder of Penny Beerntsen. DNA evidence would free him in 2003, revealing the true culprit to be Gregory Allen, a man with an extensive rap sheet that local police were actively monitoring at the time of the crime.

When Steven Avery was again arrested in 2005 for the murder of Teresa Halbach, he claimed he was being framed by the Manitowoc County Sheriff’s Department. A strong accusation, but it all starts to make sense when you look into his treatment by them in his 1985 case. Let’s take a deep look at that original case and the relationship between Steven Avery and the sheriffs of Manitowoc County.

The following evidence was gathered from depositions made during the 2004 Wisconsin Attorney General’s Office investigation into the handling of the Penny Beerntsen / Steven Avery case, Avery’s 2005 civil suit against Manitowoc County, and the Making A Murderer documentary itself.

Before the Penny Beerntsen case, the Manitowoc Sheriff’s Department had come down like a ton of bricks on Steven Avery in another case where he ran his cousin Sandra Morris off the road. Morris was married to a deputy sheriff and Steven’s lawyer Reesa Evans contends is the reason he had the book thrown at him. Avery was charged with two felonies: endangering safety regardless of life and being a felon in possession of a firearm.

But where things go really bad for Avery is when Deputy Judy Dvorak takes Beerntsen’s statement after her assault and tells her superiors the perpetrator sounds like Avery. That’s despite several key differences in Penny’s original written statement between the perpetrator and Avery: different height (5-foot-11 vs 5-foot-1), different builds (athletic vs. stocky), different eye color (brown vs. blue), and different hair color (blonde vs. brown).

According to Deputy Arland Avery (Steven Avery’s uncle), Sheriff Kocourek’s right hand man Deputy Sheriff Gene Kusche made a composite drawing based not on Penny Beerntsen’s description but a copy of Steven Avery’s mugshot from the incident with his cousin (a charge Kusche denies). They presented that image to Beerntsen, who confirmed it looked like the assailant. They then showed her a lineup of mugshots with the image of Avery.

Steven Avery’s lawyer Reesa Evans was not happy with the way any of that went. “So they show Penny Beerntsen Steven’s picture,” she says in Making a Murderer. “And then she sees a lineup later and Steven is the only person she’s seen before. Plus she had the sheriff’s deputy saying ‘I think it sounds like this guy.’ That’s pretty suggestive.”

It was also enough for Avery to be picked up. At 11:30 on the night of the attack, Avery was arrested at his home by Manitowoc Deputy Kenneth Petersen, who would later become sheriff. And here’s where things start to get really strange.

“The public defender’s office gets a list every day of people who were arrested the night before,” Evans, Avery’s lawyer, says in Making a Murderer. “And that was so the public defender could go in and make sure they had an attorney for the first appearance. But Steven’s name wasn’t on the list. And the only reason I knew he was in jail — and they knew I was his lawyer because Man is a small town — a lawyer called me and told me he was in jail.”

“So I went over and asked to see him and the deputy told me that the sheriff (Kocourek) had told him to leave him off the jail list, that he not be given access to the phone, which is illegal, that he not be allowed any visitors, and that he be held in a cell block all by himself so he could have no contact with anybody. The sheriff didn’t want him to be able to talk to anybody, including a lawyer. And I never saw that before, or since.”

It didn’t take long for people in law enforcement to note the attack on Penny Beerntsen sounded like the work of Gregory Allen. Shortly after his arrest, Manitowoc Police Detective Thomas Bergner visited Sheriff Kocourek and told him about Allen. Bergner recalls Kocourek responding, “We’ve got our man.”

There’s good reason for the Manitowoc city police to suspect Allen. He was under constant surveillance by the department after a string of disturbing sexual crimes and had had a detail of police assigned to track his movements for the 13 days leading up to the Beerntsen attack. On average, they checked up on him about four times a day. One day they investigated him 14 times.

The police even called Beerntsen to inform her of the existence of Gregory Allen. When she contacted the sheriff’s department, she was told to stop talking to the police. Note these are two different groups: the Manitowoc police handle city affairs while Manitowoc sheriffs are responsible for the county.

When charges were laid, several women in the District Attorney’s Office also noted the case sounded like the work of Gregory Allen, but they were ignored by prosecutor Denis Vogel. After Avery was cleared by DNA evidence in 2003, his file on the case was reviewed and it included a criminal complaint from 1983 against Allen, where he attempted to sexually assault a woman on the same beach Beerntsen was attacked.

The man who prosecuted that case? Denis Vogel. This file would end up kicking off an investigation from the Wisconsin Attorney General’s Division of Criminal Investigation into the handling of the 1985 Avery case.

But for now, the wheels of justice were turning, and they were set to crush Steven Avery. The defense offered up testimony from more than a dozen people who confirmed Steven’s alibi: He was pouring concrete on the Avery property leading up to the time of the attack, and at a gravel pit with his sister when the crime was committed. The prosecution brought Penny Beerntsen onto the stand, where she identified Steven Avery as the attacker with certainty.

There was almost no physical evidence linking Avery to the crime. But there was one convincing item: a hair found on Steven Avery’s shirt was deemed “consistent with” Penny Beerntsen’s hair. The person who presented this analysis to the prosecution was Sherry Culhane, the Wisconsin State Crime Lab technician who is featured prominently in Making a Murderer.

Steven Avery was found guilty of sexual assault, attempted murder, and false imprisonment and sentenced to 32 years in prison. Because he refused to admit guilt, he was ineligible for parole until his full sentence was served.

Avery refused to plead guilty, and instead took a series of appeals all the way up to the Wisconsin Supreme Court. In 1995 his lawyers had scrapings from under Penny Beerntsen’s fingernails tested for DNA. These kinds of samples can only be broken down into groups called alleles, with Beerntsen and Avery sharing the same alleles. But another grouping of alleles was discovered in the scrapings, which Avery’s lawyers contended belonged to the true attacker.

Yet even with this, his appeal was denied, with the judge claiming there was no evidence to prove the alleles didn’t come from Beerntsen’s husband or another person who may not be the attacker. As Stephen Glynn, Avery’s civil-rights lawyer, notes in Making A Murderer, “If you ever want to read an opinion that will show you how strongly this system is designed to perpetuate a conviction as opposed to examine whether or not someone could in fact be innocent, read the court of appeals decision in the Steven Avery case.”

In 2003, The Innocence Project got a motion passed to have additional tests done on evidence from the case. A DNA check on pubic hair collected by police resulted in a match in the police’s database: none other than Gregory Allen. But even this major positive break for Avery wasn’t without controversy. Avery’s lawyers complained that the Wisconsin Crime Lab’s Sherry Culhane held up the testing of the evidence for nearly a year.

Immediately after Avery’s release, the Manitowoc Sheriff’s Department started drafting memos related to the events of the 10-year-old case. A letter from Sheriff Petersen to the entire office declared “Employees shall make NO comments concerning the Steven Avery case.”

After discovering the Gregory Allen criminal complaint in prosecutor Denis Vogel’s file on the Steven Avery case, the Wisconsin attorney general started an investigation into the handling of the case. And while that case eventually cleared all those involved of wrongdoing in the case, the findings of the agents would come up again in the 2004 civil suit launched by Avery.

Emails from the investigation showed agent Debra Strauss commenting that “there was really no real investigation done” and while there was a lack of evidence pointing to Avery, those involved “were going to make it work.” Agent Amy Lehmann noted that Kocourek was heavily involved in the case, which was extremely unusual. He even reached out to the district attorney, telling him not to mess up the case because he wanted to see Avery convicted of the crime.

Also discovered by the lawsuit filed by Avery: a damning interaction between the Brown County police and Manitowoc County sheriffs departments in 1995. A Brown County detective called Manitowoc County, reaching Sgt. Andrew Colborn, to inform him they had Gregory Allen in custody for a rape and he had just confessed to another rape in Manitowoc County. Not only was nothing done with this information in 1995, but the existence of the call was never disclosed during the Wisconsin attorney general’s 2004 investigation into wrongdoing.

This is where the edges of Avery’s civil suit against the Manitowoc County Sheriff’s Department starts to press up against the murder of Teresa Halbach. Depositions investigating the 1995 phone call began just three weeks before Teresa Halbach’s murder. Not only did it implicate everyone who knew about the phone call of letting Avery rot in prison for a crime he didn’t commit, but it also indicates they purposefully hid the call from the Division of Criminal Investigation.

Officers involved: Sgt. Andrew Colborn, who took the initial call from Brown County about Gregory Allen. He testified he discussed the call with Lt. James Lenk and transferred the call to Gene Kusche, who at the time was chief of the investigative unit. He was also Kocourek’s right-hand man and the one who created the suspicious composite drawing of Avery in 1985.

By 2005, Sheriff Kocourek had retired, and in his place was Sheriff Kenneth Petersen. In the 2005 depositions, Peterson denied knowing anything about the 1995 phone call. But in a recent interview on Dr. Phil, Peterson admits he had heard Sergeant Colborn discussing it. With it being omitted from the recent criminal investigation into the handling of the case, anyone who knew about the call’s existence was in hot water.

When Steven Avery’s civil case was opened, it was against the Manitowoc County Sheriff’s Department, Sheriff Tom Kocourek, and District Attorney Denis Vogel. After the revelations relating to the 1995 call, it was expected that the $36 million lawsuit would be expanded to include Kusche, Colborn, Lenk, and Peterson. Kocourek was set to be deposed on Nov. 10, and Vogel on the 15th. And a filing from Kocourek’s insurer State Farm threw into question whether the defendants would be on the hook for any financial rulings made in the case.

While this doesn’t settle anything conclusively regarding Avery’s claims that the Manitowoc County Sheriff’s Department framed him in 2005, it does show how he was effectively framed in the rape of Penny Beerntsen. It’s undeniable that both the Sheriff’s Department and district attorney knew Gregory Allen was a likely suspect and never investigated him. The 1995 call getting ignored only further proves that they had no interest in considering anyone for the crime but Steven Avery.

The people involved in Avery’s 1985 case were willing to let him go to jail for decades over a crime he didn’t commit. They were willing to let a dangerous rapist roam free — a man who was later convicted of two more violent sexual crimes. All this because they did not like Steven Avery. If this was possible, what was possible in the face of a $36 million dollar lawsuit that could ruin their careers and lives?

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