Steven Avery

After exoneration in rape case, he apparently committed a murder

Convicted in 1985 of a rape and attempted murder in Manitowoc County, Wisconsin, Steven A. Avery was exonerated by DNA tests in 2003. The tests established that the crime had been committed by Gregory A. Allen, who had been a logical suspect from the beginning but was not pursued.

In 2007, Avery, then forty-four, was convicted, based on DNA, of a murder that occurred after his release. He thus became the only defendant ever to have been exonerated of one crime and convicted of another by DNA.

The second victim was Teresa Halbach, a twenty-five-year-old photographer whose mutilated body was found on Avery family property in Manitowoc County after she disappeared on Halloween afternoon in 2005.

The rape of which Avery was wrongfully convicted occurred on July 29, 1985. That conviction rested on an erroneous identification by the victim, thirty-six-year-old Penny Ann Beerntsen. As Beerntsen jogged along a lonely stretch of the Lake Michigan shoreline near the town of Two Rivers, the man belatedly identified as Allen grabbed her from behind, dragged her into a wooded area, raped her, and strangled her until she lost consciousness. When she regained consciousness, she crawled back to the beach, where a young couple wrapped her in a towel and walked with her until they found her husband, who already had called police. An ambulance took her to a hospital. Among evidence put into a rape evidence kit were thirteen pubic hairs thought to have been left by the rapist.

Beerntsen described her assailant as white, stocky build, long sandy hair, brown scraggly beard, no glasses, and brown eyes. The description fit both Avery and Allen. The only discrepancy of note applied equally to both — their eyes were not brown but blue. The local sheriff, Thomas Kocourek, promptly pegged a suspect — Avery, then twenty-three, a father of five with two prior burglary convictions. Six months before the Beerntsen attack, Avery had been accused of trying to abduct the wife of one of Kocourek's deputies.

A photo of Avery was placed into an array of nine photos shown to Beerntsen six hours after the attack. She identified Avery, who was arrested the next day at his home in the town of Two Rivers. The array inexplicably did not include a photo of Allen. For twelve days preceding the crime, he had been under surveillance by the Manitowoc Police Department as a suspect in a recent series of sex related crimes — including an indecent exposure and apparent attempted rape on the very beach where Beerntsen had been attacked. The surveillance had entailed a dozen or so daily checks on the thirty-two-year-old Allen. On the day of the Beerntsen attack, however, the police were occupied with other matters and checked on him only once.

During Avery's trial in December 1985, Beerntsen identified him in open court. When District Attorney David Vogel asked is she had any doubt that he was the man, she replied, "There is absolutely no question in my mind." The only physical evidence suggesting a link between Avery and the crime came from Sherry Culhane, a state forensic serologist, who testified that a hair recovered from a shirt of Avery's was inconsistent with his and his wife's hair but consistent with Beerntsen's.

Avery took the stand and gave a detailed account of what he had been doing during, before, and after the crime. The defense then called sixteen alibi witnesses. Most were relatives, friends, or acquaintances of Avery's, who might be viewed as biased, but one unquestionably was independent — Patricia Lax, a clerk at a paint store in Green Bay, who had no personal connection to Avery. She testified that Avery, accompanied by his wife and five children, had purchased a gallon of paint from her the afternoon of the crime. The store was forty-five miles from the crime scene, and a checkout tape fixed the time of the purchase at only a little more than an hour after the attack. It was hardly conceivable that, in the time allotted, Avery could have made it from the crime scene to a parking area, nearly a mile away, changed out of his blood-stained clothes, gone home, loaded the children into his pickup, driven forty-five miles to the store, picked out the paint, and paid for it.

As strong as Avery's alibi seemed, Beerntsen's positive identification trumped it. On December 14, 1985, after a little more than four hours of deliberation, the jury found Avery guilty. The following March, Judge Fred Hazelwood sentenced him to thirty-two years in prison. The Wisconsin Court of Appeals unanimously affirmed the conviction. In 1995, Avery won a trial court order for DNA testing of biological material obtained from scrapings of Beerntsen's fingernails, but the results failed to exclude Avery.

By early 2002, however, DNA technology had advanced to a point that the pubic hair recovered from Beerntsen at the hospital seventeen years earlier could be tested. Over the objection of the prosecution, a legal team from the University of Wisconsin Law School Innocence Project — Keith Findley, John Pray, and Wendy Paul — obtained a court order for the testing to be preformed by the Wisconsin Crime Laboratory. On September 10, 2003, the laboratory released a report positively identifying the hair as Allen's — leaving no doubt that he, not Avery, had raped Beerntsen.

The identification was possible because Allen's DNA profile was in the FBI's Combined DNA Index System (CODIS) as a result of his conviction for a Green Bay sexual assault — a crime that would have been prevented had he been investigated for the Beerntsen crime a decade earlier. For the Green Bay crime, Allen had been sentenced to sixty years in prison — an extended term imposed because he had been identified as the perpetrator of other sex crimes that likewise would have been prevented if the 1985 investigation had been more thorough.

On September 11, 2003, on a joint motion of the Manitowoc District Attorney and the Wisconsin Innocence Project, Avery was released from prison, having served eighteen years and forty-eight days. Most rape victims who have made erroneous identifications leading to wrongful convictions have never acknowledged their mistakes, but Beerntsen was different. She not only apologized to Avery, but her mistake set her on a mission to reform eyewitness identification procedures — an effort that succeeded in March 2005, when the Wisconsin Department of Justice adopted a model eyewitness identification protocol that held the promise of significantly reducing eyewitness identification error. Under Wisconsin law, Avery qualified for $25,000 in automatic compensation — $3.78 for each day of his wrongful imprisonment. In 2005, Avery settled a civil rights claim against Manitowoc County for $400,000, most of which went for legal fees in the Halbach case.

The murder case went to trial in February 2007 before a jury and Manitowoc County Circuit Judge Patrick Willis. The prosecution, led by Calumet County District Attorney Kenneth Kratz, introduced evidence that blood from both Halbach and Avery was found in her car, that her car key was found in Avery's residence with his DNA on it, and that Halbach's DNA was on a bullet fragment found in Avery's garage. Avery's defense was that sheriff's deputies had planted the evidence to frame him. On March 18, 2007, after nearly five weeks of testimony and three days of deliberation, the jury found Avery guilty of first-degree intentional homicide carrying a mandatory life sentence.

— Keith Weghorst and Rob Warden