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this post was submitted on 17 Oct 2023
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Huh, I could've sworn I had read that the DNA was confirmed to be hers. After looking more thoroughly you're absolutely correct. I did see a few articles that said it was matched via a partial tooth, but looking deeper into that it looks like the findings may have just been "consistent" with Halbach. Still compelling evidence, but not a direct DNA match.
I also think it's more than likely he did it, but that's an important clarification.
It's a really complex case. And just like the Depp v Heard documentary, Netflix didn't do it justice. Sometimes exaggerations make the validity of a claim harder to see. Judges don't like to offer mistrials or retrials to people they are convinced are guilty, whether the appeal was valid or not.
From my own (very ameteur) independent reading, there's a few big things that should've been slam-dunk for vacated verdict, and his attorney colluding with the prosecutor to have him interrogated unassisted is the top of the list, though Avery lost appeal on that already. Brendan Dassey had perhaps the strongest case to vacate verdict I've ever seen short of exoneration, and his eventually failed (after a very reasonable appeal verdict in his favor).
EDIT: I'd also like to note that Netflix's exaggeration has led to anti-Avery people who also exaggerate the case against him. People like Kathleen Zellner don't get involved in cases that are strong or clean. At the very least, a good lawyer would have a cakewalk winning the Reasonable Doubt standard and arguably would have with only the limited evidence that was available during his first trial. It's that exoneration cases are so hard, understandably so.
The hardest ethical question regarding law I think ask is this. If a person is guilty of a crime but can only be convicted by illegal and unethical behavior, should they be incarcerated? I've always thought we've allowed the "be certain they're guilty" standard to erode too much in the US between jurors who will convict on "I'm pretty sure" and the Federal Habeas Corpus changes.
I mean, if you boil it down, Steven Avery is arguably in prison today not because he might have committed murder but because he filed his Habeas Corpus appeal without the assistance of a lawyer and is forbidden to file another. And Brendon Dassey is definitely in prison because the current standard for that federal Habeas Corpus appeal is "no reasonable judge would ever rule this way" despite 2 reasonable federal judges agreeing he reached that standard. Hearing the appeal audio is chilling, with one of the judges constantly saying "you know we MUST reject this" without actually listening to the argument.
It's certainly very complex. I definitely agree he didn't get a fair treatment or trial and for that reason alone shouldn't be incarcerated
I also think that the Netflix documentary really skewed the view and understanding of the evidence, though. And, as you note, there can be confusion over what level of certainty a jury needs to reach. Beyond a reasonable doubt, not beyond any doubt.
All this being said, it bothers me to some degree that people will go to great lengths to fight for Avery's innocence, largely due to that documentary, when there are others whose cases are much more questionable and deserve attention too, such as Temujin Kensu.
I just hope that people, upon seeing documentaries (or really any information that drives them to a certain decision or thought, particularly based on an emotional response), would do further research.
Here's the Ninth Circuit opinion on reasonable doubt: "A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation". A single "I don't know", a single seemingly-minor inconsistency, a singular whiff of incompetence by the defense council. More complicatedly, a single defense line of questioning that gets suppressed (which, maybe a juror is supposed to disregard, but being told to disregard something favorable to the defense at all is something that gets my "common sense" aware)
There's a gap between reasonable doubt and doubt, but it's a lot narrower than the gap between reasonable doubt and preponderance of evidence. If the phrase "probably did it" shows up in deliberation, that should be the moment everyone stops and agrees to a "not guilty" verdict because of the "probably".
He's an Innocence Project exoneree who, as you just agreed, was railroaded again. I'd like to point out that Netflix didn't lead the publicity about him, they just profited from it. And the truth is, there's enough inconsistency with the prosecution's case that "probably did it" is honestly a bit strong and I vacillate between thinking he did it and that he's innocent because as bad as it looked for him, there were a couple stronger suspects that didn't have alibis. The only reason I'm not "team innocence" is the physical evidence, but even I have to admit it's evidence that prosecution couldn't form a cohesive narrative for but defense could.
Coincidentally, I watched a "Police Accountability" video just yesterday that matches the Defense story of this trial almost perfectly. Small car (let's say house), they keep searching for something and fail to find it... Then you hear them panicking that this is going to blow back if they don't find something. And then the cop plants a little marijuana thinking the angle on his body-cam won't catch it, and it only barely does. There are inconsistencies with how they discovered the only physical evidence that directly ties Steven Avery to the homicide (the bones weren't a smoking gun), evidence that is so weird it doesn't create a sensible story.
Both Lenk and Colborn are described like they had nothing against Avery, but both were caught in the exoneration crossfire, and their behavior could have prevented Avery from being convicted of the original rape.
See, there I go again. Just talking to you and remembering my own independent research about the whole key-and-blood situation, I'm leaning towards actually innocent again. I'll probably flop back the other way shortly. But that's why it's a complicated case. Netflix never shows both sides of everything. And FWIW, all the evidence we've been discussing is divulged in the Netflix documentary.