EPISODE 9:
LACK OF HUMILITY
It was during this episode that I realized something very telling and significant; after more than 8 episodes of Making a Murderer, and only that show, I had developed (against my own intentions) a subliminal assumption that Steven Avery was innocent. That’s quite a statement about the persuasive power of a television documentary, especially in the absence of most of the evidence.
I consider this assumption, however, being based on only a small fraction of the information available regarding the case, invalid. (This is not to say I now assume Avery is guilty—I have to be careful, I’m already receiving hate mail from people who believe I think he’s guilty.)
In fact, not only have I only seen a small portion of the evidence, that evidence I’ve seen has been carefully selected by a group of people—the creators of Making a Murderer. And then it hit me; I now know how a juror feels. Jurors may have questions, but they can only depend on what a few people (attorneys and a judge) decide to show them. They cannot investigate on their own, nor delve into the aspects of the case which most perplex them. My advantage, obviously, is that before I pronounce my ‘verdict,’ I can do my own freelance investigation.
Just as this documentary began to create in me an assumption that I had tried to guard against, many jurors also begin trials with an assumption: That the police are to be trusted without question. This does not surprise me in rural Wisconsin. Generally, I subscribe to the belief that the police are the ‘white hats,’ that most police officers have the best intentions and few are so corrupt that they would plant evidence. I believe that most of the time, law enforcement evidence is correct and appropriate. That said, a positive predisposition towards law enforcement does not absolve jurors from the responsibility of ensuring that government-presented evidence is valid. Juries must take seriously their responsibility to examine carefully both defense and prosecution evidence, not necessarily because police are corrupt, but because they’re human. As Ronald Reagan once so famously said, “Trust, but verify.”
It is often said that locks exist to keep honest people honest. Part of a jury’s responsibility is to keep “the people,” honest. When they do not, they betray not just the defendant, but our entire system of justice. In the Avery and Dassey prosecutions, it is my belief that regardless of the ultimate actual guilt or innocence of Steven Avery, that the juries in the Avery and Dassey trials abdicated their responsibilities to the defendants and to the American system of justice.
I consider this assumption, however, being based on only a small fraction of the information available regarding the case, invalid. (This is not to say I now assume Avery is guilty—I have to be careful, I’m already receiving hate mail from people who believe I think he’s guilty.)
In fact, not only have I only seen a small portion of the evidence, that evidence I’ve seen has been carefully selected by a group of people—the creators of Making a Murderer. And then it hit me; I now know how a juror feels. Jurors may have questions, but they can only depend on what a few people (attorneys and a judge) decide to show them. They cannot investigate on their own, nor delve into the aspects of the case which most perplex them. My advantage, obviously, is that before I pronounce my ‘verdict,’ I can do my own freelance investigation.
Just as this documentary began to create in me an assumption that I had tried to guard against, many jurors also begin trials with an assumption: That the police are to be trusted without question. This does not surprise me in rural Wisconsin. Generally, I subscribe to the belief that the police are the ‘white hats,’ that most police officers have the best intentions and few are so corrupt that they would plant evidence. I believe that most of the time, law enforcement evidence is correct and appropriate. That said, a positive predisposition towards law enforcement does not absolve jurors from the responsibility of ensuring that government-presented evidence is valid. Juries must take seriously their responsibility to examine carefully both defense and prosecution evidence, not necessarily because police are corrupt, but because they’re human. As Ronald Reagan once so famously said, “Trust, but verify.”
It is often said that locks exist to keep honest people honest. Part of a jury’s responsibility is to keep “the people,” honest. When they do not, they betray not just the defendant, but our entire system of justice. In the Avery and Dassey prosecutions, it is my belief that regardless of the ultimate actual guilt or innocence of Steven Avery, that the juries in the Avery and Dassey trials abdicated their responsibilities to the defendants and to the American system of justice.
STRANG MAGIC
Whatever the outcome of the Avery and Dassey case(s), I have to admit to an admiration for defense attorney Dean Strang. This sentiment may not seem significant, but think about what you just read; an FBI agent (who does only one thing in court—prosecutes) admires a defense attorney.
This admiration is founded in Mr. Strang’s eloquent and perceptive view of the processes that lead to wrongful convictions and the human toll they leave in their wakes. In Episode 8, Mr. Strang spoke truth that I have personally witnessed, a brutal truth that reflects the loss of “life” suffered by innocents who are accused of horrible crimes.
“To be accused is to lose…..What you can hope to get is your Liberty back, eventually. That’s all you can ever hope to get.”
Certainly, it is easy to successfully accuse people of low social or financial status, but no one is safe. I watched as Amanda Knox and her ex-boyfriend Raffaele Sollecito, two of the more wonderful people I have had the privilege of knowing, were robbed of years of their lives, as well as their reputations, for no other reason than the accusations of an unscrupulous prosecutor.
In Episode 9, Strang once again succinctly nailed one of the main causes of the debacle known as the Avery investigation, deeming it “unwarranted certitude” by law enforcement. His description of their actions as “…a tragic lack of humility…” was so spot-on that it rightfully provided the title for that episode.
Whatever the outcome of the Avery and Dassey case(s), I have to admit to an admiration for defense attorney Dean Strang. This sentiment may not seem significant, but think about what you just read; an FBI agent (who does only one thing in court—prosecutes) admires a defense attorney.
This admiration is founded in Mr. Strang’s eloquent and perceptive view of the processes that lead to wrongful convictions and the human toll they leave in their wakes. In Episode 8, Mr. Strang spoke truth that I have personally witnessed, a brutal truth that reflects the loss of “life” suffered by innocents who are accused of horrible crimes.
“To be accused is to lose…..What you can hope to get is your Liberty back, eventually. That’s all you can ever hope to get.”
Certainly, it is easy to successfully accuse people of low social or financial status, but no one is safe. I watched as Amanda Knox and her ex-boyfriend Raffaele Sollecito, two of the more wonderful people I have had the privilege of knowing, were robbed of years of their lives, as well as their reputations, for no other reason than the accusations of an unscrupulous prosecutor.
In Episode 9, Strang once again succinctly nailed one of the main causes of the debacle known as the Avery investigation, deeming it “unwarranted certitude” by law enforcement. His description of their actions as “…a tragic lack of humility…” was so spot-on that it rightfully provided the title for that episode.
STUNNED AND NAUSEATED
I have to admit to being slack-jawed at Ken Kratz’ prosecution of Brendan Dassey. After completely ignoring or even dismissing Dassey’s ‘confession’ in the trial of Steven Avery, Kratz disgraced himself by shamelessly basing his prosecution of Dassey on the disproven statements.
Well, one might point out, Kratz was dealing with a different jury and different defense attorneys so his strategy was different. But truth isn’t a ‘strategy.’ For a prosecutor to change what he or she argues to be “true,” depending not on fact, but on the audience, is to treat truth as a personal concubine, who works only at their pleasure.
My overriding question personally is how professional investigators could put any credence in the ‘confession’ of Brendan Dassey. Brendan’s statements were so incredible that reasonable people around the world see them as ridiculous on their face. So why did Wiegert, Fassbender and Kratz believe them? In a word:
I have to admit to being slack-jawed at Ken Kratz’ prosecution of Brendan Dassey. After completely ignoring or even dismissing Dassey’s ‘confession’ in the trial of Steven Avery, Kratz disgraced himself by shamelessly basing his prosecution of Dassey on the disproven statements.
Well, one might point out, Kratz was dealing with a different jury and different defense attorneys so his strategy was different. But truth isn’t a ‘strategy.’ For a prosecutor to change what he or she argues to be “true,” depending not on fact, but on the audience, is to treat truth as a personal concubine, who works only at their pleasure.
My overriding question personally is how professional investigators could put any credence in the ‘confession’ of Brendan Dassey. Brendan’s statements were so incredible that reasonable people around the world see them as ridiculous on their face. So why did Wiegert, Fassbender and Kratz believe them? In a word:
gullible
[guhl-uh-buh l]
adjective
adjective
- easily deceived or cheated.
- credulous, trusting, naive, innocent, simple, green.
What struck me most about this episode, was the incredible lack of sophistication displayed by the investigators in this case. The naiveté of Mark Wiegert is terribly disappointing, and may be an indication of the investigative experience he accrued while working in rural Wisconsin. But even then, it is hard to accept. This lack of insight would doom an investigator in an organization such as the Los Angeles Police Department or Sheriff’s Department.
The ability to differentiate “S*** from Shinola” is an imperative in law enforcement. It’s not simply in determining who is lying to them or discerning truth in the course of an investigation, it’s a requirement of their daily duties. In the big city, criminals are pretty sophisticated, and if you aren’t, you’ll be taken for a bunch of ‘rides.’
Bluntly, unsophisticated law enforcement officers are victims in the big city. Sophistication in law enforcement is not an intrinsic characteristic. It is the result of hard experience. Some of the greatest teachers of sophistication are ‘sources;’ aka, “snitches,” or “informants.” Informants are frequently as good at reading police officers as officers are at reading them. Informants learn very quickly that information=money. Therefore, informants will provide information, whether the information has any basis in reality or not, whenever they happen to be in need of cash. A strong indication of a rookie investigator is one who is paying a lot of money to informants, yet not making any arrests.
Really good informants can get rich on a single naïve cop. Wiegert would be the golden goose. I don’t think he was unintelligent; I just think that his lack of real experience in complicated crimes is painfully obvious. He reminds me of a country doctor forced to undertake open-heart surgery.
An example of Wiegert’s inexperience is that he somehow believed that Avery and Dassey could “clean up” a bloody murder scene so completely that no DNA, hairs, blood evidence, fingerprints or any other physical evidence would exist, and do so in just five days. Yet, he also believes that following a near miraculous cleanup, they left a DNA-contaminated bullet in plain view.
In fact, anybody who has ever spent much time investigating actual murders know that the chances of cleaning a murder scene so completely that no blood evidence can be found is near zero. But Wiegert believed it.
Neither, by the way, did Wiegert or Kratz (to the best of my knowledge) present any information that Dassey and/or Avery conducted any cleanup of any kind. If you’re going to allege a cleanup, you can’t just assume it, you must provide evidence of the act.
The ability to differentiate “S*** from Shinola” is an imperative in law enforcement. It’s not simply in determining who is lying to them or discerning truth in the course of an investigation, it’s a requirement of their daily duties. In the big city, criminals are pretty sophisticated, and if you aren’t, you’ll be taken for a bunch of ‘rides.’
Bluntly, unsophisticated law enforcement officers are victims in the big city. Sophistication in law enforcement is not an intrinsic characteristic. It is the result of hard experience. Some of the greatest teachers of sophistication are ‘sources;’ aka, “snitches,” or “informants.” Informants are frequently as good at reading police officers as officers are at reading them. Informants learn very quickly that information=money. Therefore, informants will provide information, whether the information has any basis in reality or not, whenever they happen to be in need of cash. A strong indication of a rookie investigator is one who is paying a lot of money to informants, yet not making any arrests.
Really good informants can get rich on a single naïve cop. Wiegert would be the golden goose. I don’t think he was unintelligent; I just think that his lack of real experience in complicated crimes is painfully obvious. He reminds me of a country doctor forced to undertake open-heart surgery.
An example of Wiegert’s inexperience is that he somehow believed that Avery and Dassey could “clean up” a bloody murder scene so completely that no DNA, hairs, blood evidence, fingerprints or any other physical evidence would exist, and do so in just five days. Yet, he also believes that following a near miraculous cleanup, they left a DNA-contaminated bullet in plain view.
In fact, anybody who has ever spent much time investigating actual murders know that the chances of cleaning a murder scene so completely that no blood evidence can be found is near zero. But Wiegert believed it.
Neither, by the way, did Wiegert or Kratz (to the best of my knowledge) present any information that Dassey and/or Avery conducted any cleanup of any kind. If you’re going to allege a cleanup, you can’t just assume it, you must provide evidence of the act.
MIND-READER
But Wiegert had nothing on Det. Anthony O’Neill, Marinette County Sheriff’s Office who believed that he knew simply from Dassey’s affect that the kid was dealing with “an inner conflict….hiding something.” Anybody who believes that they can deduce truth or deception solely from a single conversation with a person is deluding themselves. And they’ve never met a sociopath.
O’Neill had apparently missed the (crucial) day at the Reid Interrogation school when they taught ‘affect.’ Affect is the expression of emotions and/or feelings via facial expressions, gestures, voice and posture. O’Neill described Dassey’s behavior during the interview as “head down, motionless…” that affect, he said, was strong evidence of Dassey’s aforementioned “inner struggle.” Can the physical demeanor of a person be used to determine stress or deception? Certainly. But the crucial point O’Neill apparently missed in class was that before one can determine if a behavior is indicative of deception, one must determine a ‘baseline’ behavior to compare to the instant behavior in order to detect a difference.
As an investigator, you’re not necessarily looking for lack of eye contact or a head-down posture as indicators of deception, you’re looking for deviations from normal behavior. Some people don’t make eye contact. Some people are morose. Some people look down all the time. Now if an investigator were to interview Richard Simmons and found him morose, lacking in eye contact and staring at the ground, then there might be validity to a perception of strange behavior. But if you’re interviewing Brendan Dassey, then that behavior would be the norm.
Further, the fact that O’Neill hadn’t mentioned anything in his report about Dassey’s demeanor is indicative of the fact that he didn’t think it important enough at the time to mention it. If I ever had any indication that the behavior of a person was unusual or different from their baseline, I would note it in interview reports. Even then, I would not make conclusions, I would simply note the difference in the behavior as opposed to what I believed to be the interviewee’s norm.
O’Neill is also the officer who told Dassey (prior to Dassey’s interview with Wiegert and Fassbender) that Teresa Halbach was seen taking photos of a van by Dassey’s bus driver and fellow students in the bus. That Dassey included the story about seeing Halbach taking photos—in almost the exact wording provided by O’Neill—is further evidence that O’Neill’s questioning of Dassey ‘poisoned the water.’ I find it interesting that O’Neill specifically uttered the hand-washing phrase, “I’m not putting anything in your mind.” O’Neill obviously knew the pitfalls of coaching a witness, and attempted to un-ring the bell he had just tolled. He gets no slack.
But Wiegert had nothing on Det. Anthony O’Neill, Marinette County Sheriff’s Office who believed that he knew simply from Dassey’s affect that the kid was dealing with “an inner conflict….hiding something.” Anybody who believes that they can deduce truth or deception solely from a single conversation with a person is deluding themselves. And they’ve never met a sociopath.
O’Neill had apparently missed the (crucial) day at the Reid Interrogation school when they taught ‘affect.’ Affect is the expression of emotions and/or feelings via facial expressions, gestures, voice and posture. O’Neill described Dassey’s behavior during the interview as “head down, motionless…” that affect, he said, was strong evidence of Dassey’s aforementioned “inner struggle.” Can the physical demeanor of a person be used to determine stress or deception? Certainly. But the crucial point O’Neill apparently missed in class was that before one can determine if a behavior is indicative of deception, one must determine a ‘baseline’ behavior to compare to the instant behavior in order to detect a difference.
As an investigator, you’re not necessarily looking for lack of eye contact or a head-down posture as indicators of deception, you’re looking for deviations from normal behavior. Some people don’t make eye contact. Some people are morose. Some people look down all the time. Now if an investigator were to interview Richard Simmons and found him morose, lacking in eye contact and staring at the ground, then there might be validity to a perception of strange behavior. But if you’re interviewing Brendan Dassey, then that behavior would be the norm.
Further, the fact that O’Neill hadn’t mentioned anything in his report about Dassey’s demeanor is indicative of the fact that he didn’t think it important enough at the time to mention it. If I ever had any indication that the behavior of a person was unusual or different from their baseline, I would note it in interview reports. Even then, I would not make conclusions, I would simply note the difference in the behavior as opposed to what I believed to be the interviewee’s norm.
O’Neill is also the officer who told Dassey (prior to Dassey’s interview with Wiegert and Fassbender) that Teresa Halbach was seen taking photos of a van by Dassey’s bus driver and fellow students in the bus. That Dassey included the story about seeing Halbach taking photos—in almost the exact wording provided by O’Neill—is further evidence that O’Neill’s questioning of Dassey ‘poisoned the water.’ I find it interesting that O’Neill specifically uttered the hand-washing phrase, “I’m not putting anything in your mind.” O’Neill obviously knew the pitfalls of coaching a witness, and attempted to un-ring the bell he had just tolled. He gets no slack.
NO MORE CALLS, WE HAVE A WINNER….
But by far, the most ignorant, naïve and unsophisticated comment made during the episode came from, of all people, Tom Fallon, Special Prosecutor, Wisconsin Department of Justice Assistant Attorney General, who uttered the inane statement;
“People who are innocent don’t confess.”
The mind boggles. Apparently, though Fallon apparently possesses the legal experience to achieve the position of Assistant Attorney General of the State of Wisconsin, he was (and possibly still is) unaware of one of the most commonly-accepted facts among actual investigators of serious crimes--innocent people confess. A lot.
Fallon must not peruse law journals, interact with experienced investigators, work complicated cases, speak to psychologists, watch the news—or crime shows, listen to the radio, read books, or accept the opinion of top experts in law enforcement. If he had done any of that, he would have known the truth: Innocent people frequently confess to crimes they did not commit. It is difficult for me to believe that Fallon is this naïve, and therefore part of me wonders whether he was intentionally lying to the jury. We may never know the truth of this matter.
But by far, the most ignorant, naïve and unsophisticated comment made during the episode came from, of all people, Tom Fallon, Special Prosecutor, Wisconsin Department of Justice Assistant Attorney General, who uttered the inane statement;
“People who are innocent don’t confess.”
The mind boggles. Apparently, though Fallon apparently possesses the legal experience to achieve the position of Assistant Attorney General of the State of Wisconsin, he was (and possibly still is) unaware of one of the most commonly-accepted facts among actual investigators of serious crimes--innocent people confess. A lot.
Fallon must not peruse law journals, interact with experienced investigators, work complicated cases, speak to psychologists, watch the news—or crime shows, listen to the radio, read books, or accept the opinion of top experts in law enforcement. If he had done any of that, he would have known the truth: Innocent people frequently confess to crimes they did not commit. It is difficult for me to believe that Fallon is this naïve, and therefore part of me wonders whether he was intentionally lying to the jury. We may never know the truth of this matter.
INVESTIGATORS NOTES:
CLOSING THOUGHTS
Very excited about being able (in a week or so) to begin delving into information on the case I have not yet been privy to. Almost always in cases of wrongful conviction, the presented evidence is enough to convict. However, in wrongful convictions, we find that the evidence is unreliable at best, and planted at worst. The big task before me after finishing Episode 10 is to determine which evidence is valid and reasonable. I will not, even among ‘friends’ working together toward learning the truth, accept a piece of evidence as valid without knowing the pedigree of that evidence.
After the conclusion of my next and last analysis of Making a Murderer. I will be initiating a new phase in the investigation; Interviewing witnesses! And you all will be witnesses! You have trial transcripts, you have read the statements of certain people, you have intimate knowledge on the cases, and some of you have areas in which you have specialized. When speaking with ‘witnesses,’ I was always searching for information, but I was also looking for a direction to take the investigation. So from all of you (if you have time) I will be asking you (not now, after Episode 10) to provide me with, or point me toward information you believe is relevant and important.
That will give me a head-start on the deep-dive I’m about to begin after Episode 10. Frankly, I’m excited about where that will take us. And I look forward to working with you all as we move forward.
- Anybody but me think it's weird that Sgt. Colburn is the deputy doing the transportation and courtroom duties with Brendan Dassey?
- Neither Episode 8 or 9 ‘moved the ball’ as far as the guilt or innocence of Steven Avery is concerned. These episodes have centered on the apparent malfeasance of Ken Kratz and the incompetence of the investigators involved in the Avery investigation.
- Still hasn’t provided enough information to prove Avery’s guilt or innocence.
- The story given by Brendan Dassey is completely impossible, given the physical evidence found, not found, and required for it to be true. Absent other evidence to the contrary, I see no indication that Dassey was involved in any way in the disappearance or murder of Teresa Halbach.
- Wiegert embarrassed himself on the stand. He made the (somewhat ignorant) point that Brendan Dassey and Steven Avery had five days to “clean up” the crime scene after the murder.
- What evidence did the prosecution present that the two spent five days cleaning a crime scene, much less an hour? So why is that allowed as evidence in trial?
- The blood evidence couldn’t be cleaned without a trace. Period. Sorry.
- Brendan Dassey and Steven Avery are portrayed as sick opportunists unable to successfully kill the victim even after several attempts utilizing different means. However, the moment the murder has been consummated, the two, (one with an IQ of 69) instantly became criminal geniuses, adept in concealing the most minute, cellular-level DNA evidence of the murder throughout the house, the carpeting, the bedding and the concrete in the garage. (Oh, and then they leave a bullet out in the open.)
- Kratz should have been forced to make up his mind and declare who he was prosecuting; bumbling opportunists or criminal masterminds. They can’t be both.
CLOSING THOUGHTS
Very excited about being able (in a week or so) to begin delving into information on the case I have not yet been privy to. Almost always in cases of wrongful conviction, the presented evidence is enough to convict. However, in wrongful convictions, we find that the evidence is unreliable at best, and planted at worst. The big task before me after finishing Episode 10 is to determine which evidence is valid and reasonable. I will not, even among ‘friends’ working together toward learning the truth, accept a piece of evidence as valid without knowing the pedigree of that evidence.
After the conclusion of my next and last analysis of Making a Murderer. I will be initiating a new phase in the investigation; Interviewing witnesses! And you all will be witnesses! You have trial transcripts, you have read the statements of certain people, you have intimate knowledge on the cases, and some of you have areas in which you have specialized. When speaking with ‘witnesses,’ I was always searching for information, but I was also looking for a direction to take the investigation. So from all of you (if you have time) I will be asking you (not now, after Episode 10) to provide me with, or point me toward information you believe is relevant and important.
That will give me a head-start on the deep-dive I’m about to begin after Episode 10. Frankly, I’m excited about where that will take us. And I look forward to working with you all as we move forward.