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‘Making a Murderer:’ Was There Really A Conflict Of Interest In The Steven Avery Case?

By Jim Hagerty
Published on: 18:13 PST, Sep 7, 2017

As viewers await the second season of Making a Murderer, discussion still swirls about the conflict of interest the Manitowoc County Sheriff’s Department had in the Teresa Halbach investigation and whether deputies broke the law by not staying out of it.

It is widely known that Manitowoc County, at the time of Halbach’s murder, was being sued by Steven Avery over the 18 years he spent in prison for a 1985 rape he didn’t commit, the case chronicled in the first episode. Not only was he wrongfully convicted, deputies failed to pass along a phone message about the real rapist, ultimately costing Avery another eight years behind bars. Not long after his release, Avery filed a $36 million lawsuit against the county.

With the suit pending, Calumet County Sheriff Jerry Pagel publicly announced that Manitowoc County would only provide tools for his department during the murder investigation, which within the first 48-hours of Halbach being reported missing was isolated to the Avery property. Other than providing those tools, Manitowoc County was not to play an investigative role. Calumet County deputies were even assigned to shadow those from Manitowoc County while they were on the property. They weren’t to be left alone.

As far as the public knew, that changed when Manitowoc County Lt. James Lenk found Teresa Halbach’s key in Avery’s bedroom, and another deputy found her bones. It was clear that while it was Calumet County’s case, the trenches were full of Manitowoc men. As it turned out, they had an investigative role from the onset.

Manitowoc County Sgt. Andy Colborn was sent to Avery’s by Calumet County investigator Mark Wiegert, hours after Halbach was reported missing on November 3, 2005. And Colborn remained close. Although he is not credited with finding the car, he’s been accused of knowing about the RAV4 before it was discovered on November 5.

Colborn is also allegedly responsible for overturning an area of Avery’s bedroom moments before Lenk found the Toyota’s key. The state claimed the key likely popped out from inside a bookcase Colborn had been searching.

Even after Halbach’s bones were found three days later, Manitowoc County’s involvement not only continued, it appeared to have increased.

“I started to see their names on warrants,” journalist Aaron Keller said in a March conversation with Avery trial lawyer Jerry Buting.

Keller covered the case for NBC Channel 26 in Green Bay, and appears in Making a Murderer. He has since gone to law school and is now a trial host for LawNewz. Like millions of Making a Murderer viewers, he sought an answer to why deputies with a perceived conflict of interest were investigating the crime after Pagel promised the public they wouldn’t be there. When he didn’t receive that answer, he let the public know about it.

“I went on TV that night and basically accused the sheriff’s department of pulling the wool over our eyes,” Keller said. “I didn’t necessarily accuse the sheriff’s investigators of lying, but it was close.”

But was there truly a conflict? Is there a legal authority Manitowoc and Calumet officials ignored by allowing Colborn, Lenk, and company to work the case? They’re fair questions, Keller says. Defense lawyers cannot legally represent clients with whom they have conflicts. Judges must recuse themselves from conflicting cases. And juries must be unbiased. Prosecutors are also bound by such rules. Law enforcement officers, however, are not.

“There are best practices and there are handbooks,” Buting said. “But, they are not legal authorities.”

That means that even when police have a conflict like in the Avery case, evidence they collect is fair game. In fact, in the American court system, the decision to consider such evidence is largely decided by juries, not precedent. It is set up that way to allow jurors to gauge the level of bias police may have in a case by examining the type of evidence they collect against defendants. And therein lies a problem and the Steven Avery case reveals it, Keller says.

“It draws up the distinction of a matter of law versus a matter of fact,” he said. “If the law says [something] can’t happen, it is dealt with before it goes to the jury.”

The rest is decided in the jury box.

Judges have a part when it comes to evidence collected by officers with conflicts of interest, too, although it’s not the stringent role most people believe it should be. And it continues to perplex Making a Murderer viewers. Millions wonder why the key, bone fragments, not to mention the admittedly contaminated trace evidence, were even admitted.

“Some judges might decide that there is so much of a conflict that they don’t even allow [evidence] to a jury,” Buting said. “By and large that’s unusual in American courts.”

Most evidence in a criminal case, if it’s relevant, makes it to the jury if it has the tendency of proving facts, he said. In a criminal case like Avery’s, jurors decide if the evidence will influence their decision.

To Avery supporters, who collected the evidence is tantamount to the findings themselves. To his lawyer, Kathleen Zellner, not only did Manitowoc County law enforcement appear suspicious by finding the key, for example, they planted it, she claimed in her latest appellate brief. And the bones seemed to follow a rapid succession of evidence on Avery’s property that began as soon as he left town for the weekend.

And while there is no authority that could have kept Manitowoc County deputies out of the Avery investigation, it is a common belief that where his case stands today is an outcropping of their involvement. To some, that means had Manitowoc stayed out of it as Pagel promised, a perception of conflict and possibly Making a Murderer would not exist. To Zellner, it’s not that simple. Certain officers were part of the probe for one reason, she says, and that was to help stage a crime scene.

[Featured Image By Bruce Halmo/AP Images]

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