What Was Left Out of Making a Murderer Episodes 2–4

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Photo: Netflix

Spoilers ahead. Click here to read more about the story behind episode one.

In episode one, we learn that Wisconsin’s Steven Avery was wrongfully convicted and incarcerated for a crime for which he was not guilty. He served 18 years in prison and was freed only when DNA evidence definitively tied a different assailant, Gregory Allen, to the crime. When episode two, “Turning the Tables,” begins, legislators from both parties, and even Wisconsin’s then-governor, embrace Avery after his exoneration. They launch an Avery Task Force, holding him up as an example for why prosecutorial and police reform were needed.

Avery’s feel-good story takes a hairpin turn into feel-bad territory, though, when he is arrested not long after for the murder of local woman Teresa Halbach. In episode three, “Plight of the Accused,” we learn that Brendan Dassey, Avery’s 16-year-old nephew, and originally a key part of his alibi, confessed to taking part in the crime, which he claimed to do at his uncle’s behest. Originally this looks terrible for Avery: According to the cops, Dassey implicated himself and his uncle in kidnapping and rape as well as murder. But the filmmakers pick apart both Dassey’s “confession” — in actuality, a series of assents to various claims fed to him, line by line, by investigators — and the dubious methods used by law enforcement to extract said confession from a teen whose own mother calls him “slow” and who was questioned numerous times without a lawyer.

In episode four, “Indefensible,” Dassey’s state-appointed lawyer continues to serve him poorly. “He thinks I’m guilty,” Dassey mumbles to the judge during his family’s attempt to get him new counsel. The judge refuses the petition but later, when he discovers that Dassey’s attorney arranged for Dassey to be interrogated again without a guardian or legal counsel present, the judge loses patience with the lawyer and eighty-sixes the man himself. Meanwhile, Avery’s much more competent lawyers dig into the old evidence kit from Avery’s case and discover that it has been tampered with: The outer box was cut open, the inner box was cut open, and the vial of Avery’s blood — which is still liquid — has a puncture in the cap the size of a hypodermic needle. Not our work, insists the lab. So it seems that the prosecution did indeed have the means and opportunity to frame Avery by sprinkling his blood around the crime scene.

A lot is packed into these episodes. What is left out? Ahead, the most salient details.

The state legislature’s Avery Bill did indeed pass, and pass unanimously — but it was swiftly rebranded.
The Wisconsin Innocence Project, which was instrumental in springing Avery from prison, hailed the bipartisan bill as “a good step in the right direction” the summer before it passed. It included a number of reforms, among them new best practices for handling eyewitnesses.

If you Google it, though, you will not turn up much information. That’s because “Avery Bill” is not the preferred nomenclature: “Criminal Justice Reforms Bill,” please. Supposedly out of respect for Halbach’s family, the legislators involved wasted no time in distancing themselves from a man who had gone from villain to hero and back again.

Halbach and Avery knew each other.
This fatal encounter wasn’t their first; Halbach and Avery had worked together numerous times before — Halbach had photographed vehicles Avery was selling through Auto Trader magazine. That doesn’t necessarily imply some sort of forethought or planning on Avery’s part, nor does it indicate a motive, but it seems relevant.

Avery had requested that Halbach’s magazine, Auto Trader, send her specifically, saying, “Send the girl who was out here before.”

Avery’s relationship with his girlfriend, Jodi Stachowski, introduced in episode two, was more tumultuous than depicted.
According to a 2006 longform piece on Avery in Milwaukee Magazine, he was arrested in 2004 over an “altercation” with Stachowski, fined, and ordered to stay away from her for three days.

Yes, it was legal for investigators to question Brendan Dassey without a lawyer present.
Although we hear nothing about investigators giving Dassey a Miranda warning in episodes three or four, investigators maintain that he was indeed read his rights and waived them. Those rights, in case you need a refresher, include a suspect’s ability to remain silent, even while being officially interrogated, because anything they say can and will be held against them; and the fact that a suspect is entitled to an attorney, regardless of their ability to afford one.

The Supreme Court has since ruled, in 2011, that police officers have to exercise caution while interrogating minors. “Children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave,” wrote Justice Sotomayor, on behalf of the majority, which reasoned that, “because of their relative immaturity and lack of experience, children ‘cannot be viewed simply as miniature adults.'

There is a legitimate reason judicial officials keep bringing up IQ scores.
In episode one, the court declares that Avery’s IQ was recorded to be 70. Dassey’s IQ, the judge tells us in episode four, is comparable, ranging from 69-73. Why does it matter? Because a score of 70 is often used as a cut off for intellectual disability.

North Carolina defines mental retardation as “significantly subaverage general intellectual functioning” with “[a]n intelligence quotient of 70 or below.” And in 1978, a case went to the U.S. Supreme Court because a defendant, who was found guilty of rape and murder and was sentenced to death, had an IQ of 71, and the Florida Supreme Court held that “his intellectual disability rendered him ineligible for execution.”

Wisconsin seems to have a more holistic definition of intellectual disability, based on a number of criteria rather than the results of one specific test. Still, it seems particularly egregious in Dassey’s case that he should be treated the way he was when his IQ should have served as yet another indication that he was not equipped to fully understand the scope and ramifications of a police interrogation — and certainly not on his own.