Could the midterm election results help get ‘Making a Murderer’s’ Steven Avery and Brendan Dassey out of jail?
A new Democratic Governor and Attorney General in Wisconsin might hold the key
The US midterm election results brought few surprises this week when, as expected, the Democrats took back control of the House and the Republicans strengthened their grip on the Senate.
But in local and state-wide races across the country, Democrats performed well by reclaiming state governments and governors’ mansions from Maine to Nevada.
One state where the Dems did particularly well was Wisconsin, which elected a new Democratic governor, Tony Evers, and a new Democratic attorney general, Josh Kaul.
The case, related to the 2005 killing of Wisconsin photographer Teresa Halbach, is one of the most complex and internationally renowned in the country thanks to the allegations of corruption, the years of legal wrangling and the Netflix docuseries.
So could the new Democratic leadership free Steven and Brendan?
On Twitter, Steven Avery’s former lawyer Jerry Buting and his current attorney Kathleen Zellner praised the election results and hoped it would lead to good things for the pair.
Buting explained to Rolling Stone how the new Attorney General might affect the case, saying: “The Attorney General can tell the Department of Justice whether to fight a particular case or not, or whether to concede in certain areas or not.
“So for instance, the allegations of deliberately withheld exculpatory evidence by the prosecution in the Avery case — [which] I think it would apply to [Dassey] as well — if the new Attorney General decided that the evidence seems to support that kind of a claim, he could direct his lieutenants, so to speak, enter into some sort of agreement that, yeah, this is a violation, now what’s the remedy?
“Kaul can order that a transparent review be done of their files and the special prosecutor’s files, as well as a reinvestigation of the case.”
One caveat, however, is that Attorney General-elect Josh Kaul is the son of the late Peg Lautenschlager who, as Wisconsin Attorney General from 2003 to 2007, oversaw the investigation and prosecution of both Avery and Dassey for Halbach’s murder.
So will Kaul want to interfere in a complex case that involved his own mother? Time will tell.
Avery and Dassey might find a friendlier path to a pardon through the governor’s mansion with Gov-elect Tony Evers.
While he hasn’t directly commented on the Making a Murderer case, Evers made criminal justice reform a central plank of his election campaign.
And Evers can’t be much worse than current Republican governor Scott Walker, who was vehemently opposed to issuing pardons.
“To me, the only people who are seeking pardons are people who have been guilty of a crime and I have a hard time undermining the actions of a jury and of a court,” Walker told the Associated Press in 2013.
In Wisconsin, governors have extensive pardoning powers under Article V, section 6 of the Wisconsin Constitution:
“Pardoning Power. Section 6. The governor shall have power to grant reprieves, commutations and pardons,1 after conviction,2 for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons.”
“In Wisconsin, the power to pardon belongs exclusively to the governor, who can exercise it essentially in any manner the governor sees fit,” writes legal expert Donald Leo Bach.
These are some options the Governor-elect might consider upon taking office to free Avery and Dassey:
1. Pardon - A pardon is an act of official forgiveness that restores all of the convicted person’s rights that were lost due to conviction for an offense.
2. Commutation - The second type of executive clemency is commutation. Commutation modifies a person’s sentence, that is, it shortens the sentence or makes consecutive sentences run concurrently. It only applies to persons currently serving a sentence.
3. Reprieve - A reprieve suspends a person’s sentence for a period of time, allowing the person to complete it at a later date.
In reality, it’s probably a long shot to think that the new Governor will want to get personally involved with these thorny legal cases. Is the political cost worth the reward?
The best hope for freedom, then, might well remain with Avery’s new lawyer Kathleen Zellner who has promised to fight until the better end, writing on Twitter yesterday: “No matter what may be offered, a plea deal, a shortened sentence, an Alford plea SA will never ever accept anything other than a complete exoneration. Innocence is not negotiable.”
(Images: Getty / Facebook / Netflix)