Avery Request for Retrial Denied

On 25 January, 2010, Manitowoc County Judge Patrick Willis issued his ruling on the request of Steven Avery for a new trial. Avery was convicted in 2007 for the October, 2005 murder of Teresa Halbach.

Avery’s appeals attorneys requested a new trial based upon two issues. The first had to do with the substitution of a juror after jury deliberations had begun. The second was the claim that Judge Willis had incorrectly denied the introduction of evidence of that a third party was responsible for the crime.

Judge Willis first addressed the juror issue. Willis claimed that the discharged juror, Rich Mahler, was not credible in his testimony. But, Willis gave no evidence for this other that what Willis recalled from the trial was different from what was stated at the retrial hearing. Willis’ notes regarding the discharge seem to match juror Mahler’s testimony.

One item in the opinion was particularly interesting. This had to do with Calumet County Sheriff Jerry Pagel’s involvement with the circumstances leading to the dismissal.

It is unusual for a sheriff to be directly involved with jurors in lieu of a bailiff. State Police were assigned to guard the sequestered jurors during deliberations. A trooper contacted the bailiff identified only as Oscar about a communication with juror Mahler. For an undetermined reason, Oscar contacted Calumet County Sheriff Jerry Pagel instead of Judge Willis. Pagel should have directed the bailiff to the proper course of action. Instead, Pagel made direct contact with the juror. His subsequent communication with Judge Willis was at odds with the Mahler testimony.

Judge Willis claimed that Sheriff Pagel was neutral in the trial of Steven Avery. But, Pagel has participated in news conferences led by Calumet County District Attorney Ken Kratz who was a special prosecutor in the Avery trial. Further, Sheriff Pagel made statements to the press about his claims that Avery was guilty far in advance of the trial. Pagel was committed to the outcome of the jury finding Avery guilty.

Judge Willis stated that Pagel’s actions did not effect the final jury verdict. But, that is guesswork. Mahler could have been the person to keep most of the jury voting not guilty. Clearly, two jurors voted guilty by reason of their relationship to Manitowoc County Courthouse and Sheriff’s Department. And clearly these two were ultimately influential. Mahler testified that one of the jurors had attempted to bully him.

We do not have any recording of the conversation between Sheriff Pagel and Juror Mahler. Judge Willis stated that Pagel was merely a messenger. But, then, why not simply instruct bailiff Oscar to do his duty? Sheriff Pagel’s physical presence was not required for that instruction. When Pagel stepped in to replace Oscar, the normal bailiff Judge relationship became corrupted. Even if Pagel’s actions were benign to the outcome, his sudden appearance into the proceedings still can be construed as a conflict of interest since Pagel was not a neutral party.

A root issue was whether Wisconsin law required a mistrial because of the discharge of a juror. There is some fine footwork by Judge Willis here. His opinion is that since Avery agreed to the substitution of the juror that the substitution was permissible.

Both of Avery’s trial attorneys admitted that they were unaware of the statutory requirement for a mistrial when they conferred with their client. Avery agreed to go with the substitute.

From my point of view, if the alternate juror sat in the jury box for the entire trial, then there is some strength to Willis’ finding. Willis also made an argument that the statute wording of requiring a mistrial does not mean that the statute prohibits a juror substitution.

The other issue was the pretrial ruing by Judge Willis that prohibited the defense from introducing evidence that the Halbach murder was committed by anyone other than Avery or his nephew, Brendan Dassey. This ruling prohibited the defense from introducing evidence that named third parties could have committed the crime.

Judge Willis relied on State v. Denny for his ruling. Avery’s new attorneys argued that this was the wrong standard. Or, if Denny were appropriate Willis applied it wrong.

Willis replied that he did not prohibit defense attorneys from introducing evidence that applied to unnamed third parties. He merely prohibited the defense from introducing evidence showing a named third party committed the crime. The defense was restricted only to evidence introduced by the State. I’m not sure how he made that distinction clear.

Since the State controls evidence, this is a severe restriction. From the time of the discovery of the Halbach vehicle, the case was slanted. Witnesses who approached investigators with information that was contrary to what the investigators wanted were ignored.

The appeals attorneys argued that since Denny required a motive of a named third party to introduce evidence of the third party involvement, that it was not applicable. They pointed out that no motive was developed to show that Avery was involved.

During the various interrogations of Brendan Dassey, the interrogators were under orders to produce a motive. The best they could come up with was that Dassey said that Avery wanted to go back to prison. Special Prosecutor Ken Kratz even advanced that claim in one of the hearings for Dassey.

There was no discernible motive for Avery to commit the crime. He had good reason to look forward to a lawsuit settlement stemming from false imprisonment due to bad behavior by the Manitowoc County Sheriff. He was free at last. The person coerced (and victimized) by law enforcement to falsely implicate Steven Avery in her sexual assault found Avery to be remarkably free from resentment after the two met.

One of the persons that defense attorneys wanted to implicate was Bobby Dassey. Bobby Dassey’s timeline was essential for the State. When a witness approached Calumet County Investigator Mark Wiegert, he ignored her because of the crimp that put in the plans of the State. Avery was going to be accused no matter what.

Willis also noted that both defense and State introduced evidence in the retrial papers that was not present when the third party liability motion was argued. One of his specific mentions was about a Bobby Dassey pre‑hunting shower. This was however testified at trial by Dassey. This testimony was integral to the State’s claimed timeline.

Willis stuck by his Denny rulings.

I would like to see the appeals attorneys attack the State witness Mark LeBeau. LeBeau was the FBI chemist who fast tracked a protocol to not find ethylenediaminetetraacetic acid (EDTA) in the Avery blood found in the Halbach vehicle.

LeBeau was chastised by the Florida Appeals Court for his actions in Sybers v. Florida. There, LeBeau developed a protocol to convict Sybers. He did not attempt to verify the accuracy of his protocol which turned out to give false results. The Florida Appeals Court accused LeBeau of institutional bias.

Florida requires that protocols be independently verified before used by prosecutors. Apparently, Wisconsin has no such safeguard.

In the Avery trial, LeBeau testified that his mission was to convict. There were anomalies in LeBeau’s testimony as well.

I would expect Judge Willis to do what he could to uphold the results of the Avery trial. While he generally appeared to be careful and thoughtful about his decisions, there were a few incidents in the trial where he demonstrated a bias against the accused. I’m not sure of those would rise to the level of reversible error, but they were noticeable.

We’ll now see what the Appeals Court will rule.

Special Prosecutor Kratz was uncharacteristically quiet. He declined interviews with the press.