“If I were the State, I would welcome the opportunity to re-try Steven Avery because there is so much evidence that we didn’t even use because we didn’t have to in order to prove his guilt.” -Former Calumet County, WI District Attorney Ken Kratz
If you haven’t seen the acclaimed 10-part documentary series Making a Murderer yet (hey, guys! Nice to see you both!), allow me to set some expectations: it will take approximately five minutes before you want to hug exoneree, Steven Avery. You’ll be rooting for him to win his $35 million lawsuit against the law enforcement agency that wrongfully imprisoned him for eighteen grueling years. And then you’ll get angry. And angrier. And angrier, until you’re convinced that Avery is the victim of a police cover-up intended to frame him for the murder of freelance photographer Theresa Halbach (whose name, unfortunately, became forever linked with and often overshadowed by the circus-like fervor surrounding the case).
The documentary series portrays Calumet County District Attorney Ken Kratz as the de facto antagonist in this story -- and does it very effectively. But Kratz stands by the guilty verdict and seeks to set the record straight with his book Avery: The Case Against Steven Avery. Kratz gave me a preview of what to expect from his book and his intensive four-hour examination of the State’s evidence against Steven Avery at CrimeCon.
CCI: Tell me about some of the differences between Making a Murderer and the trial that you discuss in your book, presumably the other side of the narrative?
KK: What I present in the book is the original narrative. This is what the jury heard -- in two different trials. People who followed the case before MAM will recognize this narrative. Until MAM engaged in some deceptive editing, this was not as controversial a case as it was made to seem. So when you say “the other side” I kinda chuckle at that because “the other side” was presented 10-11 years ago. The docuseries is the real “other side.”
CCI: What would say to those people who have based their judgment on the docuseries and are somewhat resistant to other possibilities? How would you ask the skeptics to come hear your side of the story at CrimeCon?
KK: I would want them to understand, if they are open minded enough, that they saw exactly what the filmmakers wanted them to see and that is such an important point here. If I had ten years to create a narrative, I could make you believe whatever I wanted to, also. They engaged in things like splicing answers which are unheard of in legitimate documentary filmmaking.
Not only does the book illustrate that deception for those who think it’s important that we do that, but we will also be able to chronicle the investigation preparation and presentation of the case. It’s very compelling and interesting to see the series of facts that we presented.
We certainly have almost irrefutable physical evidence that the jury considered that establishes Avery’s guilt. Although not Brendan Dassey’s guilt, which is a much more complex case and is compelling for different reasons in and of itself.
The book discusses the behind the scenes part of the story that wasn’t portrayed in MAM. There are things that have never been disclosed, and it’s important stuff. If you’re a fan of MAM or true crime, I would think that having the lead investigator and prosecutor walk you through Day 1 all the way through the sentencing would be very sought after, but I don’t have a good sense of what the “skeptics” expect. There are people that don't believe the prosecution’s case, even though we got the guilty verdict. The prosecution deserves an opportunity to present their case.
CCI: Can you tell me a little about your decision to write the book? Was there a specific moment or any one catalyst that made you decide that you needed to set the record straight despite your departure from prosecution?
KK: When MAM was released on December 18, I immediately went public to say “This is wrong. This is not the way it happened; this is not the information the jury had; this advocacy piece is not a documentary.”
I realized around February of 2016 that it didn't matter. That I could say that all day long that it wasn't going to change the narrative, it wasn't going to change the opinions of that many people. Nineteen million watched it within the first 35 days, and forty million total. That's a lot of minds to change.
But I wanted to set the record straight out of respect for the victim, Theresa Halbach, and her family. And also for the integrity of the investigative process itself. The docuseries presents the prosecution and investigators as crooked or corrupt, but the fact is that none of those things happened in this case. The filmmakers ruined those officers’ reputation without a shred of evidence that tied either of them to any wrongdoing. That’s why I decided to write the book.
I didn’t know anything about writing books; I’m a trial lawyer. But I found an agent and a publisher and began writing the story of the case. From that perspective, it was rather easy to write. I believe the real story and the real narrative will highlight all the distortions that the filmmakers put forth. It's a pretty easy read. We’re just saying “Here's the case and here's how MAM lied to you folks.”
CCI: What is the most surprising thing you think readers will learn from the book?
KK: The prosecution was completely excluded from the docuseries. I have a laundry list of evidence that the jury saw that was omitted from MAM. When you ask somebody at the conclusion of watching that docuseries if Steven Avery is innocent or guilty, they all say Avery is not guilty. Which is their original response, but when you consider all the things excluded from the docuseries, you’ll be amazed. All evidence pointed to Steven Avery’s guilt. Because the filmmakers didn’t have an explanation for those things, they simply left them out.
I keep going back to this body of people who, if they know they have not been shown everything and if they know what they've been shown has been doctored or altered, how can they still believe that Avery is innocent? I don’t understand the willingness to set common sense aside to that extent, where people would believe some vast conspiracy rather than all the evidence supporting the jury’s verdict. Maybe I’m living in a bubble or don't appreciate the power that a docuseries can have over the general public’s opinion. If told all the facts that weren't in there, I can’t see people still believing Steven Avery is innocent.
CCI: Scenario: Steven Avery is exonerated on irrefutable evidence and walks free. What’s your reaction?
KK: I wouldn’t have a reaction. I’m not a DA anymore. I’m not involved in the case. I don’t have any official involvement in the case. I’m like everybody else at this point. I watch both Avery and Dassey, consider what the conclusions are, whether they are going to come up with evidence to be retested.
Avery’s ability to get a new trial is a really hard sell. He lost all the appeals throughout the appellate process. He lost appeals on new evidence on the ineffectiveness of his attorneys. Everything that has been raised has been rejected by the appellate courts. Other than new evidence, which is particularly difficult to find, especially the kind that will warrant a new trial, it’s unlikely to happen. Avery will stay right where he is. Even if one piece of evidence grants Avery a new trial, understand that with the bones, the blood, the bullet, the key, and the SUV on the property and the statements he made, he’s unlikely to be exonerated. There is still a lot of evidence that points to his guilt.
If one little piece of evidence gets Avery a new trial, if I were the State, I would welcome the opportunity to re-try Steven Avery because there is so much evidence that we didn’t even use because we didn’t have to in order to prove his guilt. We didn’t use mitochondrial DNA matches or other forensic evidence that we had because it was unnecessary. We didn’t use all the jail calls in which Avery made admissions to his family. So part of that was strategic and is still available to submit in case he gets a new trial.
CCI: With, as you mentioned, no official involvement in the case, what drives your efforts to address the public perception?
KK: I wouldn’t have written the book if it weren't for MAM. I could have done it at any point over the last ten years and did not. It wasn’t until this flip on the narrative and flip of public perception that I was required to stand up to do that. I was the only one who stood up in December. No law enforcement officer said anything at that point, and even now only Fassbender has come out. Everyone has remained quiet hoping it goes away. They don’t want to subject themselves to the same kind of criticism that I get.
The reaction people have to me is because I’m just saying what really happened in the case. It’s abusive, and it’s a death trap. This kind of animosity towards a DA from eleven years ago who was just doing his job is unprecedented. I can't remember of any public official or any prosecutor be so resoundingly criticized for having won a case. Having convicted someone of a really grisly murder. So I think that is unique to this case but also scared off any law enforcement officer or anyone else who wanted to stand up and support the verdict.
CCI: Your book seems to be a “final word” type thing. Does the book, in conjunction with the upcoming intensive CrimeCon session mark the end to your involvement in the Avery narrative? The end to the Avery story in general?
KK: No. I doubt it. The Dassey case is still next, and there will be a Dassey book. Whether I do it or somebody else does it because there are just too many issues on false confessions and that whole side of the case, which as I said, was very compelling stuff. It's different from the Avery part of it, and that's gotta be done. Lastly, will my book serve as a basis for its own docuseries or movie. Something that can reach many more people than Making a Murderer.
Ken Kratz and Thomas Fassbender will host an intensive, comprehensive, 3.5 hour overview of the Avery case at CrimeCon. Space for this session is limited and will be offered first to Gold VIPs. Space permitting it will then open to all registrants. if you’re interested in attending, keep an eye out for an email in coming weeks to reserve your spot and plan your schedule.