***Note: Contains Making a Murderer Spoilers***

The second episode of Making a Murderer attempts to establish Steven Avery’s $36 million civil lawsuit against Manitowoc County as a potential motive for sheriff’s deputies to frame him for the murder of Teresa Halbach.

As in the first episode, none of the named defendants in said lawsuit are ever interviewed, so the context of it is provided entirely by Avery and his attorneys.

“We've alleged $36,000,000 in damages or a million dollars per year for the years that he spent in prison, and then the other $18,000,000 for penalty damages or deterrents damages,” says Avery’s civil attorney Walt Kelly. 

“From Steven's perspective, it couldn't have had less to do with what the numbers were," he continues. "It was entirely about, let's identify who did what here. Let's make sure that they are held up as examples to everybody else in law enforcement as to what you do not do, and what the consequences are when you do what you should not do. What we're really talking about is accountability.”

“Trying to prevent another family broken,” adds Avery. “So it don't happen again.”

Avery is presented as a humble crusader for justice who didn’t care about money, only helping others.

But the series omits the time he tried to get money from Penny Beernsten, the woman he supposedly forgave for mistakenly identifying him as her rapist.

She wrote a first-person essay for the Marshall Project explaining the incident:

A few months after I met Steve, he left a message for me. So I called him and he was kind of beating around the bush. He was telling me how he didn’t have any money and he couldn’t get a job and he was living on his parent’s property and it wasn’t going well and he wanted to get his own place to live and it would really be nice to have a house. I finally came out and said, “Steve, are you asking me to buy you a house?” And he said yes. I said, “That’s not possible. We probably should not be talking to each other. I will be deposed in your civil suit.” He was cordial, he wasn’t abusive or anything. It was just clear he wanted money from me. I called job services and passed that along to his attorney, but I don’t know if he ever followed up with them.  

That doesn’t sound like a man who just wants law enforcement to pay for setting him up; that sounds like a man who wants to be paid.

Naturally, this exchange isn’t mentioned in Making a Murderer, as it portrays Avery as somewhat less sympathetic.  Still, his lawsuit clearly had merit.  The Manitowoc County Sheriff’s Department was grossly negligent in the way it investigated Beernsten’s rape.

Attorney General Peg Lautenschlager, though, did not find evidence of criminal wrongdoing.  The series makes no mention of the fact that Lautenschlager was a Democrat who ran a very liberal Justice Department that was very concerned with issues of restorative and social justice.  

In other words, it may be reasonably presumed that were there any actionable evidence that an entire Sheriff’s Department conspired to frame an innocent man (instead of being, as the Justice Department found, staggeringly incompetent), Lautenschlager would have been inclined to prosecute or at least issue a reprimand.

Remember, from the day he was released in 2003 until Teresa Halbach’s vehicle was found on his property in November of 2005, Avery was something of a folk hero in Wisconsin.  Lautenschlager’s boss, Governor Jim Doyle (himself a former Attorney General who would have jumped at the chance to expose corruption in law enforcement), met and posed for pictures with him.  As the series notes, the State Legislature named a package of criminal justice reforms after him and allowed for a $450,000 compensatory payment to him.

Although the Manitowoc Sheriff’s Department is not held criminally liable, the basis of Avery’s lawsuit is that it intentionally deprived him of his civil rights.

“What we learn is that while Steven Avery is sitting in prison now for a decade, a telephone call comes in to the Manitowoc County Sheriff's Department from another law enforcement agency, which at least one of the officers involved in that process, believes to be the Brown County Sheriff's Department, saying that they had someone in custody who said that he had committed an assault in Manitowoc, and an assault for which somebody was currently in prison,” explains Avery attorney Stephen Glynn.

Manitowoc County Sergeant Andrew Colborn took the call but never filed a report or apparently followed up, and the Sheriff’s Department maintained the belief that they had their man—Steven Avery.  This is just as much evidence of extreme negligence as it is of a supposed conspiracy to keep Avery in prison.  As such, it should have been investigated further and the Justice Department clearly should have at the very least reprimanded the Sheriff’s Department if not sanctioned it for its ineptitude.

However, this phone call also raises a very interesting question: Why didn’t anyone at the Brown County Sheriff’s Department pursue an investigation into Gregory Allen’s claims?  If it was immediately clear that Allen was specifically talking about the Beernsten rape and the Manitowoc Sheriff’s Department refused to investigate, why didn’t anyone in Brown County ask the Justice Department or another local law enforcement agency to investigate?  Why didn’t anyone contact Avery or his attorney?

Glynn tells the Making a Murderer filmmakers:

The fellow who got that call was named Colborn. And you might say that there should be a record of him immediately making a report on this. There might be a record of his immediately contacting a supervising officer. There might be a record of him contacting a detective who handles sexual assault cases. Uh, there might be some record of it. But if you thought any of those things, you'd be wrong, because there isn't any record in 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003. Now 2003 is a year that has meaning because that's when Steven Avery got out. And the day he got out, or the day after, that's when Colborn decides to contact his superior officer named Lenk. And Lenk tells him to write a report, and they then go have contact with the sheriff.

One could very easily view this not as evidence of a widespread and powerful conspiracy, but rather of three relatively dopey law enforcement officers having an “Oh crap” moment and hastily trying to make up for their own negligence.

Is that wrong? Of course it is.  Did they deserve to be punished for it? Without question they did.

But the extraordinary claim that they were all starting to hatch a plot to frame Avery requires extraordinary evidence to support it, and Episode 2 provides none other than a potential financial motive in avoiding a $36 million judgment—which insurance may well have ended up covering.

Avery’s attorneys imply that the County’s insurance would not have covered damages in a case of intentional deprivation of civil rights, but this is not entirely certain.

“We were just on the absolute edge of getting ready to go after the named defendants in the case with depositions when I get a call from Walt, who tells me that he has gotten a call from a journalist asking if either of us would care to comment on the apparent intersection in life between Steven Avery and a woman who has gone missing in the Manitowoc area, whom we later learn to be Teresa Halbach,” explains Glynn.

Much is made about the fact that the depositions began just days before Halbach went missing, as though somehow the timing wasn’t a coincidence and the deputies suddenly had a reason to put their plan to frame Avery into action.

This relies on a logical fallacy known as “post hoc ergo propter hoc” (“after this, therefore because of this”) wherein it is assumed that simply because Halbach went missing the same month that Manitowoc County Sheriff’s employees were deposed, those depositions caused Halbach to go missing as the employees somehow had a hand in getting her car (and the cremains of her body) onto Avery’s property.

That suggestion, which Making a Murderer very obviously raises, is another extraordinary claim that requires even more extraordinary evidence.  But other than a potential financial motive, Episode 2 offers none.

And it also ignores evidence that suggests Avery specifically wanted Teresa Halbach on his property on October 31st, 2005.  She had been to his salvage yard six previous times that year.  One time, he answered his door wearing nothing but a towel, prompting her to call Auto Trader Magazine and tell a receptionist how weirded out she was by him.  She told her boss that she never wanted to go back to Avery’s property again, but on October 31st, she did.

Because Avery called Auto Trader to specifically request her.  In addition, phone records show that he called her cell phone from his three times on the 31st—twice using *67 to conceal his number.

Wouldn’t logic dictate that if he really was just calling her to set up a photography session, he would want her to see who was calling her?  Wouldn’t he want her to know that it was him calling?

But he didn’t.  Because he wasn’t really just calling to set up a photography session. 

He specifically wanted that girl who had been to his place before—the one he had previously creeped out by wearing nothing but a towel in front of her.  He wanted that girl.

He wanted Teresa Halbach. 

Click here for Rebutting a Murderer: Episode 3

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