Thousands of people have signed petitions asking President Obama to pardon Steven Avery for his conviction in the murder of Teresa Halbach, the subject of the Netflix documentary Making a Murderer. While President Obama has no jurisdiction over the matter, Wisconsin Governor Scott Walker does. However, it appears that he is not sympathetic to the pleas of Avery.
In spite of strong evidence suggesting corruption in the trial against Steven Avery for the murder of Teresa Halbach, the Wisconsin Governor and former candidate for the Republican nomination for President has not been persuaded. In fact, Avery’s new legal team will face an uphill battle if they seek to have Avery pardoned by the Governor, as tough-on-crime Scott Walker has never issued a pardon during his five-year tenure.
In implying that no pardon was forthcoming, Walker cites the unanimous opinion of the Wisconsin Court of Appeals, which admittedly gets it right from a technical, legal standpoint. In his appeal, Avery cited three reasons he deserved a new trial: 1) There were others on his property who could have committed the murder; 2) the search on his property that uncovered the key to the RAV4 was improper because it came two days after the initial search warrant; and 3) he deserves a new trial because a juror was improperly excused.
From a legal standpoint, the Appeals Court ruled properly on the only three issues in front of them. Legally, Avery was not allowed to point to any number of people who were also on his property during the time that Halbach was murdered unless he could show that one of those people had a motive to kill Halbach. Avery could show no such motive. As to the continuation of the search, the key was admissible because it is both legal to continue a search under a warrant for several days and because of the inevitable discovery doctrine (in his appeal, Avery did not contend the key was planted by police, although the Netflix documentary strongly makes that case).
Finally, Avery lost on the third point, as well, arguing that the excusal of the juror warranted a new trial. However, Avery — and his lawyers — agreed at the time of the trial to the removal of the juror, though it turns out that the “family emergency” was not as urgent as the juror made it out to be (the juror’s stepdaughter had been in a car accident). However, the appeals court reasoned, there was no reason for the lawyers on either side to know that the emergency wasn’t as urgent as the juror suggested. The juror said that he would have a difficult time focusing on the case because of the accident, and Steven Avery, lawyers for both sides, and the judge took him at his word.
All of which is to say: Unfortunately for Steven Avery, he’s not allowed to retry the facts of his case on appeal. He’s only allowed to argue legal points. His lawyers, however, have not been able to muster a legal defense to convince the courts to overturn.
Scott Walker, however, has the right as Governor to overlook the legal aspects of a case and pardon Avery based on any number of factors introduced in Making a Murderer. What the Governor does not have the ability to do — and what is the best recourse in light of the details presented in the Netflix documentary — is to grant Avery a new trial. Walker can’t do that; only an appeals court can.