Brendan Dassey May Be Innocent, But Steven Avery Is Still Guilty As Sin
David Harsanyi
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The following is a rant about Netflix’s docuseries “Making a Murderer.” Here is the background on the tragic story of Steven Avery. Here’s a piece I wrote earlier this year contending that Avery is guilty as hell. If you haven’t seen the series for some reason, and you don’t want it ruined, don’t read any further.

This week, I received a number of gloating emails letting me know that a Wisconsin judge has overturned the conviction of Avery’s nephew Brendan Dassey, who was also convicted in the murder of Teresa Halbach. Didn’t I feel stupid now, they wondered. Well, there seems to be a big misconception about the case.

Even when I argued that Avery had stalked, murdered and attempted to dispose of Halbach’s charred body, I conceded that his nephew’s confession was problematic. Although the directors, Moira Demos and Laura Ricciardi, engaged in journalistic malpractice throughout the documentary, expediently ignoring events and facts that would have put Avery’s actions in an unfavorable light, it was obvious that the investigators who’d questioned then-16-year-old Dassey — without an attorney or family member present despite his obviously low IQ — were out of line. Dassey was barely coherent and often confused, wondering aloud if he would be able to go back to class after he’d just confessed to helping his uncle rape and kill a young woman.

So Judge William E. Duffin ruled that the police made false statements and enticed Dassey with promise of leniency. Although the judge didn’t give relief on the matter of Dassey’s pre-trial attorney Len Kachinsky — from what we saw, a bungling unethical pushover who should never have been practicing law in the first place — he did characterize the lawyer’s behavior as “inexcusable both tactically and ethically.”

The state is almost certainly going to appeal this ruling. But if it’s upheld in a federal appeals court, the confession will be thrown out. Again, judging from what we saw, that is probably the right outcome, because there are no heroes in this story — not the cops, and definitely not Ken Kratz.

This doesn’t necessarily mean Dassey didn’t participate in the crime. I’m skeptical about his innocence. As you can see in testimony that was left out of the first season of “Making a Murderer,” the teen was, on occasion, quite specific without being prompted. So if you concede that Dassey wasn’t bright enough to comprehend his situation, then we must also probably concede that he’s not smart enough to conjure up such a vivid and detailed murder scene. Well, unless he had witnessed or participated in the event.

Mostly, though, none of this really matters even a little bit when it comes to the conviction of Steven Avery. While the directors lingered on Dassey’s confession for extended periods of time, his case was separate from Avery’s. Initially, Avery, the main focus of the docuseries, was prosecuted and convicted as the sole perpetrator of the Halbach murder. During that trial, prosecutors didn’t even call on Dassey to testify and never used his confession.

It’s obvious why. At worst, investigators pressed Dassey until he lied. At best, the investigators pressed Dassey until he gave them some misleading snippets and half-truths.

According to Dassey, on the day of murder, he wandered over to Avery’s trailer to deliver his uncle’s mail. He heard screams from inside the house. He knocked, and a disheveled and partially naked Avery answered the door and invited him in. Avery then led Dassey into the bedroom where Halbach was tied to the bed. It was then that Avery urged his nephew to commit rape and murder. He complied. But since no blood was found in that bedroom, and since, for some reason, people seem to believe that the prosecution has a duty to provide a pool of blood to get a conviction, Dassey’s unreliable confession — one that he reneged on, anyway — would only have created doubt.

More importantly, the evidence against Avery was overwhelming. Prosecutors never needed the confession during the trial because every single piece of evidence points to his guilt.

Let’s review: If your contention is that Avery is innocent, you must also believe that a string of clandestine schemes were pulled off by a group of law enforcement officials (or some other unknown person) who exhibited a level of proficiency that rivals SPECTRE. You would have to believe that these people either murdered an innocent woman, or found her and then, presumably, set up Avery because he had been exonerated in the earlier rape case; that they then drove Halbach’s car into the Avery family auto yard and dumped it there without being noticed; that they got their hands on Avery’s blood and sweat and then smeared it on Halbach’s car; that they then scorched her body in his fire pit and dumped her remains on his property without anyone noticing; that they took more of Avery’s DNA and smeared it on Halbach’s car keys, which were planted in the trailer; and then, somehow, they also deposited a bullet from his gun with her DNA (a fact not mentioned in the documentary, incidentally) and planted in it the garage. That’s just for starters.

A lot of folks find this a plausible scenario. That’s the reason the show does so well, I guess. The Dassey decision also happens to work out quite well for the producers of “Making a Murderer,” who are shooting season two right now. No doubt the directors will be working to humanize Avery, allowing boosters to make an array of unsubstantiated accusations and float conspiracy theories without any pushback or evidence.

Demos and Ricciardi claim one of the jurors only convicted Avery because they “feared for their personal safety.” Perhaps the conspiracy runs even deeper than we thought. I look forward to seeing the evidence. Did someone threaten this juror? We’ll see. Avery’s new lawyer claims she has someone else in mind as the murderer. I’m sure we’ll hear a lot about that, as well. And maybe, with the emergence of new evidence, I’ll be convinced that I was wrong the entire time. But even if that does happen, it’ll have absolutely nothing to do with Dassey’s confession being overturned.

David Harsanyi is a former Senior Editor at The Federalist. He is the author of First Freedom: A Ride Through America's Enduring History with the Gun. Follow him on Twitter.

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