The Innocent Killer: A true story of a wrongful conviction and tts astonishing aftermath

255 Pages·2014·1.26 MB·English

by  Griesbach

Praise for The Innocent Killer
“The Innocent Killer is a shocking yet effective example of what can happen
when our justice system fails. It poses the provocative question—one which
those involved in the criminal justice system must ask themselves time and time
again: ‘What if?’ What if the investigation of Steven Avery’s alleged crime and
its prosecution had gone differently? Would the tragic event that happened
eighteen years later still have come to pass? Unfortunately, we’ll never know.
Griesbach’s unflinching page-turner raises all the right questions and brings us
closer to the truth.” — Barry Scheck, Co-founder and Co-Director of the
National Innocence Project at the Benjamin N. Cardozo School of Law
“Brilliantly written, The Innocent Killer is an instant true-crime classic that will
either re-affirm or shake your faith in American justice. A non-fiction thriller
with more twists and surprises than any fiction novel. This shocking true story
will be talked about, and argued about, for decades to come.” — Burl Barer,
Edgar Award winning true crime author
“The Innocent Killer is about tragedy, but it’s also about hope. I survived my
own personal nightmare when I was assaulted on the beach that day only to learn
years later that I unwittingly played a starring role in someone else’s. The ripple
effect of this single injustice has lasted for decades, with devastating
consequences for other victims and their families. We can’t unring the bell of an
injustice, we can’t right the wrong, but we must joust with humility and learn
from our mistakes – because to do anything less would be unforgivable.” —
Penny Beerntsen, crime survivor and nationally known restorative justice
spokesperson
“In a narrative that reads like a novel, Michael Griesbach, a prosecutor in that
same Wisconsin county, passionately lays out the differences between working
for justice and just racking up a conviction. It should be required reading for
prosecutors and defense attorneys alike. It’s not just a good read. It’s an
important read.” — Michael Kiefer, Justice and Legal Affairs Writer, The
Arizona Republic

“The Innocent Killer is a shocking book: shocking for the jailing for 18 years of
an innocent person, but shocking, also, for the sequel where the innocent man,
once released, commits a heinous crime. The book is a compelling read and the
prosecutor-writer explains brilliantly the internal dynamics, and shortcomings, of
the many players in the cast. The rush to judgment to convict the “obvious”
killer tests the fiber of a state criminal justice system. The defense tactics in the
second murder case show how the “muddying the water” defense almost
succeeded in acquitting the same person in the second criminal case. I am using
the book in my criminal procedure class which focuses upon the Fourth, Fifth,
and Sixth Amendments to show how the pretrial errors in the first case
contributed to the wrongful conviction. I know that this book will be an
effective, exciting balance to the traditional case analysis and courtroom visits I
usually employ.” — Bruce Comly French, Director of Clinical Programs and
Professor of Law, College of Law, Ohio Northern University
“The Innocent Killer illustrates why it is so important for law enforcement and
prosecutors to follow the evidence and only the evidence. Hunches and ‘gut
instinct’ are a good starting point, but must be born out by the evidence. If not,
you risk outcomes like this. This is a scary tale every practitioner must
understand. If your hunch is right, there will be evidence. If there is no evidence
then your hunch may be wrong, or at a minimum your investigation has to
continue.” — Richard Cole JD, Police Science Instructor, Milwaukee Area
Technical College and Director of the Milwaukee Police Academy
THE INNOCENT KILLER
MICHAEL GRIESBACH
THE INNOCENT KILLER
A True Story of a Wrongful Conviction and its Astonishing
Aftermath
For Jody and the kids.
Cover design by Elmarie Jara/ABA Publishing.
The materials contained herein represent the opinions of the authors and/or the
editors, and should not be construed to be the views or opinions of the law firms
or companies with whom such persons are in partnership with, associated with,
or employed by, nor of the American Bar Association or the ABA Publishing
unless adopted pursuant to the bylaws of the Association.
Nothing contained in this book is to be considered as the rendering of legal
advice for specific cases, and readers are responsible for obtaining such advice
from their own legal counsel. This book is intended for educational and
informational purposes only.
A different version of this book, titled Unreasonable Inferences, was previously
published by Point Beach Publishing, LLC in 2010.
© 2014 American Bar Association. All rights reserved.
No part of this publication may be reproduced, stored in a retrieval system, or
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Library of Congress Cataloging-in-Publication Data
Griesbach, Michael, author.
The innocent killer: the true story of a wrongful conviction and its astonishing
aftermath / Michael Griesbach.
pages cm
Includes bibliographical references and index.
e-ISBN: 978-1-62722-364-5
1. Avery, Steven--Trials, litigation, etc. 2. Trials (Rape)--Wisconsin. 3. Trials
(Murder)--Wisconsin. 4. Murder investigation--Wisconsin. 5. Rape
investigation--Wisconsin. 6. Judicial error--Wisconsin. I. Title.
KF225.A84G75 2013
345.775’028230977567--dc23
2013044201
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Contents
ACKNOWLEDGMENTS
INTRODUCTION
PROLOGUE
PART I
PART II
PART III
EPILOGUE
AFTERWORD
POST-SCRIPT
AUTHOR’S NOTES
ABOUT THE AUTHOR
Index
ACKNOWLEDGMENTS
This book has not been easy to write. Not only is it my first, which means there
was a lengthy learning curve, but I am still a prosecutor in the Wisconsin county
where Steven Avery’s wrongful conviction occurred, and the book is highly
critical of the police and the prosecutor responsible for his conviction. Besides,
why would a prosecutor write a wrongful conviction book in the first place?
They are typically the province of defense attorneys, members of Innocence
Projects, or wrongly convicted individuals themselves.
It is with these thoughts in mind that I wish to express my deepest gratitude to
the following individuals, without whose wise counsel, encouragement, and
support, writing this book would have been a very lonely road to travel.
Thanks first to Penny Beerntsen whose courage and compassion turned what
could have been a life-long tragedy into a mission to serve. As an invaluable
member of the Wisconsin Criminal Justice Study Commission and the
Wisconsin Crime Victims Rights Board in the years following her assault, and as
a devoted volunteer for the Manitowoc County Sexual Assault Resource Center,
the Wisconsin Restorative Justice Program, and Northwestern University Law
School’s Center on Wrongful Convictions, Penny has devoted much of her time
and considerable talent to helping crime victims and offenders alike get their
lives back on track. Thanks Penny, your life is an inspiration!
Thanks also to University of Wisconsin law school professor Keith Findley.
Keith is the former director at the Wisconsin Innocence Project and served as
lead counsel in the litigation that resulted in Steven Avery’s exoneration. From
when we first learned about the DNA results until today, I’ve treasured our
conversations.
Thanks to Marquette University law school professor and former Wisconsin
Supreme Court Justice Janine Geske. Janine’s reputation is unmatched in
Wisconsin legal circles, but it was her compassion for her close friend, Penny
Beerntsen, that says the most about her character. Thanks Janine for your
support of this project.
Thanks to Milwaukee attorneys Steven Glynn and Walter Kelly, two of the
most highly skilled criminal defense attorneys in the state of Wisconsin who
represented Steven Avery in his wrongful conviction lawsuit. Generously
sharing with me their valuable time, they alerted me to some critical facts
surrounding Mr. Avery’s wrongful conviction, shedding further light on what I’d