Wisconsin State Journal

New book recounts injustice for Avery

dhall@madison.com | 608-252-6132
Posted: Wednesday, October 20, 2010 8:30 am

MANITOWOC — Michael Griesbach recalls the sinking feeling in 2003 when he realized Steven Avery’s proclamations of innocence for a grisly assault, made throughout his 18 years in prison, were true.

The assistant district attorney in Manitowoc County was on speakerphone with his boss, District Attorney Mark Rohrer, and Sherry Culhane, an analyst from the state Crime Laboratory.

Culhane said DNA tests of a hair taken from the 1985 assault victim — one of the same hairs that Culhane had testified nearly two decades earlier was “consistent” with Avery’s — was in fact from another man, Gregory Allen, a dangerous sexual offender who had been on the radar of local police for years.

As Culhane broke the news to the two prosecutors, Griesbach leafed through the voluminous Avery file and came across something out of place: A criminal complaint against Allen for an earlier crime. It was signed by then-Manitowoc County District Attorney Denis Vogel, the same prosecutor who helped put Avery behind bars for the attack on Penny Beerntsen.

Two years before Beerntsen was assaulted, Allen was charged with lunging at another woman on the same beach while she was walking her dog. Why was the complaint for that crime in Avery’s file? Did Vogel secretly suspect Allen?

“I couldn’t shake the feeling that something went horribly wrong back in 1985,” Griesbach wrote in a recently self-published book re-examining the case, “Unreasonable Inferences.”

In the book, Griesbach charges that Vogel and then-Manitowoc County Sheriff Tom Kocourek ignored evidence that Allen was the man responsible for the July 29, 1985, attempted murder and sexual assault of Beerntsen as she jogged on the beach near Two Rivers.

Unreasonable Inferences
The book is based on trial transcripts, documents from the district attorney’s files, interviews with Beerntsen and information from law enforcement officials who Griesbach says repeatedly warned Vogel and Kocourek that they were on the wrong track — including one who said he told Vogel that another man, possibly Allen, had confessed to the attack while in prison.

The story has a further tragic turn, which many in Wisconsin already know: Two years after he was ultimately vindicated and released from prison, Avery was charged with killing photographer Theresa Halbach at the Avery family’s salvage yard. Avery’s nephew, Brendan Dassey, was charged as an accomplice. Both were convicted and sentenced to life in prison.

Contrary evidence ignored?

Griesbach’s theory on the 1985 case is that, in their zeal to punish Avery for an earlier crime against the wife of a Manitowoc County sheriff’s deputy, Vogel and Kocourek missed clues pointing to Allen, a serial sex offender who went on to brutalize another woman after Beerntsen.

Griesbach said the two ignored mounting evidence that Avery was innocent: The attacker’s hands were clean, unlike Avery’s, which were perpetually grease-stained; Avery’s eyes are blue, even though Beerntsen clearly recalled her attacker had brown eyes; and the suspect was described as 5 feet 6 inches tall — half a foot taller than Avery. Sixteen Avery family members also independently vouched for his whereabouts the day Beerntsen was assaulted, Griesbach said.

Much of the case was based on Beerntsen’s identification of Avery as her attacker. She never got the chance to identify Allen.

It would take Avery nearly two decades and the help of the Wisconsin Innocence Project to win his release in 2003. But, as Beerntsen notes on the book jacket, “We can’t unring the bell of an injustice.”

Griesbach, 49, spent two and a half years investigating the story behind Wisconsin’s most famous wrongful conviction, which he calls a “colossal injustice.”

He’s a longtime prosecutor whose older brother, Bill, is the federal judge for the U.S. District Court in Green Bay.

Kocourek, the now-retired Manitowoc County sheriff, declined to discuss the Avery case, saying he didn’t want to contribute to any story that could be hurtful to the Halbach family. Vogel, who now practices law in Madison and serves as Maple Bluff’s municipal judge, didn’t return messages seeking comment.

A 2003 investigation by the office of then Attorney General Peg Lautenschlager investigated the events leading up to and following Avery’s 1985 wrongful conviction and uncovered much of the same information that alarmed Griesbach. Lautenschlager’s report found no ethical or criminal violations but concluded Allen should have been investigated as a suspect and included in the lineup and photo array that Beerntsen saw.

Griesbach called the report a “whitewash.”

Author: Avery no angel

After Avery was released, he sued Manitowoc County in federal court for $36 million, alleging officials had framed him. To prepare for trial, his attorneys began putting law-enforcement officials under oath.

But in 2006, after he was arrested for Halbach’s murder, Avery cut a deal with the county for $400,000 to help pay for his legal defense. Avery’s attorneys in the civil case never got to depose Kocourek or Vogel.

Griesbach said he decided to write the book after it became clear the full story of Avery’s wrongful conviction may never be told.

He said he took care to portray Avery as the dangerous criminal he was. At the time he fell under suspicion for the attack on Beerntsen, Avery had been charged with a chilling crime.

On Jan. 3, 1985, Avery rammed the car of the wife of a Manitowoc County sheriff’s deputy on a rural road near where her family and Avery’s family lived, then attempted to kidnap her at gunpoint. Avery let the woman go after she pointed out that her 6-month-old baby in the back seat would freeze to death if left alone.

Griesbach rejects the defense theory in the Halbach case that police framed Avery and his nephew. This time, he believes, the physical and circumstantial evidence are overwhelming.

But Griesbach is left to wonder: What does it do to a man to be trapped behind bars for 18 years, knowing he’s innocent?

Click HERE to order Unreasonable Inferences online.

Recommended Reading
Truth in Justice