Attorney Michael Griesbach located a criminal complaint: on August 12, 1983, Gregory Allen had “exposed himself” and lunged at a woman not only in the same manner, but on the same stretch of beach where Penny was attacked almost exactly two years later. The file of this complaint was, curiously, found in Vogel’s file on the Avery case. Rather an unlikely coincidence, that such a similar case file would end up with the Avery papers, unless it had been placed there purposefully; if that was the case, it assured with sickening certainty that Vogel had not only known about Gregory Allen, he had kept his potential as a suspect from the others involved with Avery’s conviction. Griesbach followed up his finding and confirmed: Allen had been in and out of the courthouse in the 1980s for peeping in women’s windows and stalking, and despite the suggestions of female prosecutors, Vogel had completely disregarded these. Vogel had prosecuted Allen’s 1983 case himself. He knew.
Griesbach and fellow attorney Mark Rohrer worked together to investigate Avery’s case post-conviction and post-DNA testing. They investigated Allen thoroughly, as well as the shadowed circumstances that led to Avery’s wrongful conviction. Unsettlingly, they found that Gene Kusche, of the oh-so-accurate composite sketch, had almost zero training in the art of creating a composite sketch. The little training he did receive was in the form of a two-hour introductory course in the subject area at Quantico. As if this were not enough, the day that the sketch was drawn, Kocourek had officers on alert, having apparently been notified to prepare to pick up Steven Avery at the inevitable advent of his identification. The police had their suspect in mind when creating the lineup, and this fact alone contaminated the results.
At this point, Keith Findley of the Wisconsin Innocence project was contacted and told the news, which was then passed on enthusiastically to Steven Avery himself. The DNA was retested in a week, and their results held firm: Avery was not the pubic hair donor. He was innocent.
In the follow-up on Allen, Griesbach confirmed that while Allen had spent much of his time in the years preceding Penny’s attack in and out of jail, he had been a free man on July 29, 1985. Another truly chilling detail: a week after her assault, Penny received a call from a detective at the police department, sharing with her that they had obtained information on a suspect other than Avery. Doubting herself, she phoned the station and had what she thought was a direct conversation with Kocourek, in which he assured her that he would personally look into this line of investigation. Kocourek’s claim was that upon researching the situation, he had found that Allen was with his probation officer on the day of the crime and therefore could not have been the perpetrator. This is, of course, utterly preposterous, as Allen had no probation officer at the time of the assault. Later, Kocourek would deny any memory of this conversation with Penny.
As if this were not damning enough: allegedly, ten years into Avery’s prison sentence, Gene Kusche had gotten a call from the jail. An inmate had been talking, saying that he had raped a woman jogging on the beach of Lake Michigan in Manitowoc County the day of Penny’s attack. The information had the potential to overturn Avery’s conviction, and recognized as such, it began to make its way up the law enforcement chain, a momentum that was abruptly halted by Kocourek.
Suspiciously, In Kocourek’s safe, there was an affidavit from Raymond Crivitz, a seemingly standard jailhouse snitch claiming to have had a conversation with Avery in which Avery confessed. The affidavit was composed eleven years after the conversation was claimed to have occurred. Why was he holding it so dear as to lock it in a safe? And why was the time frame of the conversation and the claim so skewed? Another crack in the foundation of the Avery case.
Griesbach and Rohrer’s investigation into Allen yielded increasingly frightening results. On July 14, 1985, just weeks before the assault of Penny Beerntsen, Allen was the lead suspect in the attempted rape of a seventeen year old girl. He was on a crime spree, and he was becoming bolder. The police had him on their radar; all they lacked was definitive proof of guilt. Perhaps what they needed truly wasn’t available, or perhaps they simply were acting too slow, with gross inadequacy; no matter the reason, the stark fact remains: Allen was free on July 29 to assault Penny Beerntsen, and arguably due to Vogel and Kocourek’s methods in conducting the investigation, he remained free a decade later. On July 27, 1995, Gregory Allen broke into a home and viciously raped a woman while her daughter slept in a room down the hall.
All these ugly truths, and more, were uncovered in the post-conviction investigation. However, an Attorney General reviewed all the evidence pointing to Kocourek and Vogel as the men behind the wrongful conviction, but he “whitewashed the entire affair,” blaming the conviction on poor police communication. His judgement in this matter effectively stifled any further investigation.
The 137th person to be exonerated through DNA testing, Steven Avery was released from prison on September 11, 2003. He returned to live with his parents at the family Salvage Yard, then moved into an ice shanty, apparently accustomed to the smaller quarters he had so long lived with while incarcerated. A law from 1913 said that those who are wrongfully convicted could petition for compensation; however, the original limits had not been adjusted for economic inflation since its drafting that year, and still stood at $5,000 per year with a cap of $25,000.
Findlay, from the Innocence Project, wrote a document grandiosely entitled “Steven Avery’s Petition for Compensation for Wrongful Imprisonment,” bidding the claims board not only to adjust their monetary limits, but to entirely disregard any limits whatsoever in this case. The board of claims responded by proposing a limit of $25,000 per year and resetting the cap at $450,000.
Steven Avery employed Walt Kelly and Steve Glynn, the legal representatives from his second appeal, to advocate for him in a “$36 million wrongful conviction lawsuit,” in which they filed what was termed a “1983 Action” claiming that Vogel and Kocourek intended to send him away while knowing he was innocent, and that his civil rights were violated. To win the case, Kelly and Glynn would be required to prove either intent or negligence, or some combination thereof. Avery was a celebrity, well liked by the press and the public alike, who relished in rallying around his campaign. He and his team were set to win the lawsuit as the grim twenty year anniversary of the original case rolled around in 2005. They were set to win it all – until the disappearance of photographer Teresa Halbach on October 31st, 2005. Her charred and mutilated corpse was found in a barrel in the Avery Salvage Yard, and every lofty ideal or remote sense of justice reclaimed came hurtling violently down.
The Circumstance of Steven Avery 