Convoluted Brian

The report(1) considered Avery a viable suspect. This determination was based on his criminal history at the time of the investigation and findings of the investigation.

Avery’s history included convictions for burglary and cruelty to animals. At the time of the assault he was on bail release for running a woman off the road, pointing a rifle at her, and commanding her to get out of her vehicle. The woman pointed out her infant in her car and Avery allowed her to leave. This victim was the wife of a Manitowoc County deputy.

When Avery was arrested for the January 1985 assault, he readily confessed. He stated the woman had accused him of being naked in his yard. His intention after forcing the woman from her car is unknown. It can be argued that this was a sexually motivated attack however, there is no credible indication to verify such an assumption. Manitowoc County District Attorney Vogel assumed the incident was sexually motivated which then justified the prosecution.( VI‑1)

At the time of the July 1985 sexual assault, those with similar criminal histories to Avery would not reasonably be included as likely suspects. There was no compelling reasons to consider Avery as the likely, or the only, suspect. Manitowoc County Sheriff Tom Kocourek claimed a happenstance placed Avery at the top of the suspect list. The list had only one name.

The first step toward considering Avery as the only suspect started early in the process. According to the Sheriff, Deputy Sheriff Judy Dvorak, a neighbor of Avery, said that the description of the attacker given by the assault victim “sounded like Avery.”(2)

For some reason, Kocourek personally took the investigation rather than concentrating on his duties as Sheriff. Because of the Deputy’s statement, the Sheriff included Avery’s photograph in the photo array to be shown to the victim.(IV‑2)

According to the report, a composite drawing created from the victim’s description was complete at 10:20 P.M.(III‑1) The sheriff entered the hospital room immediately after with the photo array.(IV‑3) This indicates that the sheriff did not consult the composite drawing prior to involving the victim with the photo array.

The Sheriff placed nine photos before the victim with Avery’s photo in the center. Whether the Sheriff made facial gestures or paused while placing the center photo is a matter of conjecture, however, such behaviors are documented with other cases.(3) The sheriff stated that the suspect might be in the array. The victim picked Avery’s photo, the late and centered addition.

Kocourek stated he had no knowledge of Avery before this investigation. That statement is questionable, since Avery confessed to an attack on a county deputy’s wife earlier in the year. The Sheriff would certainly have knowledge of criminal activity directed toward a family member of one of his deputies.

Three days after the assault, the victim picked Avery from a lineup as her rapist. The sheriff stated that the suspect was in the lineup.(V‑3) Avery was the only person common to the photo array and the lineup. Although the appeals court called the lineup fair, there were several problems that undermine this finding. First was that Avery stood out like a sore thumb. It is true that all the members of the lineup had beards and were white. Others were substantially taller than Avery and their beards were much darker. Another suspicious element is that some members of the lineup were well‑dressed. Yet, the report claims the lineup was proper.(V‑7)

Another more ominous issue was that one of the lineup members stared at Avery during the procedure.(V‑1) The Attorney General’s investigation did not attempt to identify this person and determine what relation he had to the Manitowoc County Sheriff’s Department.

Steven Avery had alibis for the date and time. One of the alibis was that he had been working pouring cement. Analysis of his clothing did not reveal the presence of expected cement dust although it is unclear if his work clothes were tested or if he had changed clothes. More important, his clothing was not tested for the presence of plants and sand found in the beach area where the assault took place. The report ignored this important test as did the investigators in 1985.

In addition, Avery had sixteen alibi witnesses plus cash register receipts which placed him at a Shopko store about an hour and a quarter after the assault. He and his family, including newborn twins were at the store. County investigators made the trip from the crime scene to the store and passed through the checkout fifty‑seven minutes after leaving the crime scene. But, the investigators exceeded the speed limit by at least ten miles per hour.(VI‑3) And, they did not have a family, including newborns, to contend with. It is not clear if they shopped and purchased anything. Probably not.

No one placed a family waiting in a car at the scene. Nor did anyone question how Avery would have performed the assault, ran to his waiting family, and hastily driven to the store without showing disheveled clothing or beach debris.

According to a deputy, when Avery was arrested he told his wife that he was accused of murdering “a girl.”(VI‑2) (4) Whether this claim was verified by Avery or his wife is not stated. No one asked Avery what he meant by that statement but assumed that he was referring to the assault victim. It could have just as easily referred to the woman in the January attack. This statement, if true, was used for confirmation bias.

The jury and the judge all believed that Avery had to refer to the crime at hand. The report used this statement to bolster the claim that the investigation was correctly followed. However, if the deputy stated simply that the crime was attempted murder, guessing a the sex becomes a fifty‑fifty matter. If the deputy mentioned sexual assault, then the probability of guessing a female victim dramatically increases.

Curious behaviors of Sheriff Kocourek were not addressed very well. He performed the initial photo‑array without consulting the composite drawing and conducted continuous meetings with the victim in a secretive manner. The meetings were closed door, and the victim/witness coordinator was excluded. District Attorney Dennis Vogel was often present.(VI‑28) By the time of the trial, the victim was certain of her identification.

Other areas of the report demonstrated the fixation Sheriff Kocourek had with Avery. Lieutenant Leroy Bielke of the County Sheriff’s Traffic Division spoke with Don Belz, Captain of Detectives, about a sighting of a man in the area of the assault and that the man was known to commit these types of sexual crime. Belz responded that the Sheriff wanted Avery convicted.(VI‑22) For the Attorney General’s investigation, the Sheriff claimed any suspect brought to his attention would have been thoroughly investigated (VI‑24). Bielke was not the only person who expressed concern about the direction of the case.(VI‑27, VI‑29)

Additionally, the assault victim reported harassing sexual telephone calls after the assault, while Avery was in jail. She believes she spoke with Sheriff Kocourek about the calls. Kocourek denies knowledge of this contact.(VI‑10, VI‑11)

The claim that Avery was a viable suspect, let alone the only suspect, was not valid at the time of the assault and is not valid now. Once the Sheriff made Avery the only suspect, the investigation shaped all evidence to make it so; excluded any further investigation into viable suspects; and ignored reasonable questions. The fact that a deputy stated that Sheriff Kocourek wanted Steven Avery for this crime made the outcome inevitable.

The prosecutor, Dennis Vogel, assumed that the assault by Avery on the deputies wife was sexual although there was nothing upon which to base this assumption. And Vogel alibied for the person who was the perpetrator.

Kocourek and Vogel shaped the investigation and prosecution that led to conviction of the wrong person.

References

Memorandum Wisconsin Department of Justice – Steven Avery Wrongful Conviction

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