The science of deoxyribonucleic acid (DNA) was just beginning to seep into the practice of law in the early 1990s. The nation’s top-notch criminal defense attorneys immediately grasped its potential. They saw in DNA a great new hope for wrongfully convicted defendants who have exhausted their remedies for relief in the courts of appeal. With increasingly sophisticated methods of analysis to identify its genetic footprints, DNA gave them one more shot to prove their clients’ innocence.
Attorney Steven Glynn of Milwaukee was one of those top-notch attorneys. He is widely regarded as one of the best, if not the best, criminal defense attorneys in the state of Wisconsin. As a lawyer friend of mine once put it, Steve Glynn has the whole package—he’s an expert in the law, but he’s also great with a jury. His intelligent appearance and gentleman’s demeanor make you like him immediately, and his full mane of prematurely gray hair reassures the jury of his wisdom and professional sincerity.
Sales of junk cars must have been brisk in the mid-1990s because in October 1994, seven years after the court of appeals rejected the defendant’s first appeal, Allan Avery retained Steve Glynn to represent his son. Like the attorneys before him, Glynn and his associate, Robert Henak, reviewed the entire file—the police reports, the crime lab reports, transcripts from the motion hearings and from the trial, and other miscellaneous papers common to a case file. They had their work cut out for them—the trial transcript alone was 1,029 pages long.
The lawyers were on the lookout for evidence that might contain DNA. The police had retrieved a good deal of physical evidence—hair, blood, clothing, fingernail scrapings—from both the defendant and the victim and Glynn hoped it was still around. He sent a letter to the current district attorney, Jim Fitzgerald, advising him that he’d been retained to investigate and pursue post-conviction relief on behalf of Steven Avery. He asked Fitzgerald if the physical evidence still existed, and if it did, to make sure it wasn’t destroyed.
Jim Fitzgerald had defeated Elma Anderson in a hotly contested race for district attorney in 1986. Both he and Elma had been assistant district attorneys under Denis Vogel, and although Elma was appointed by the governor after Vogel unexpectedly left town, the regular election took place six months later. Fitzgerald threw his hat in the ring, and after the recently departed but still well-connected Denis Vogel put his political weight behind him, he defeated Anderson and became the new DA.
Now it was eight years later and Fitzgerald had inherited the Avery file. He called the sheriff’s department after he received Glynn’s letter, and asked if they still had the physical evidence from the Avery file. None other than Chief Inspector Gene Kusche replied a few days later by memo. Gene said he checked the evidence room and there was no physical evidence from the Avery case on file.
Fitzgerald thought he better check with the clerk of courts’ office—maybe the court file would at least have the physical evidence that was introduced during the trial. A week or so later, the chief deputy clerk—there’s never a shortage of chief deputies in government—advised Fitzgerald by memo that she finally found the exhibits in a box in the communal vault in the courthouse basement. She explained that she hadn’t taken the exhibits out of the box, but it looked like they were all there. She also noted in her memo that Gene Kusche had stopped in a few weeks earlier looking for the evidence.
Fitzgerald called Steve Glynn to tell him the evidence had been preserved in the court file, and they arranged a time for Glynn to come up to Manitowoc to view the exhibits. Glynn drove up a few days later and pored over the contents of the box. Two of the exhibits immediately caught his eye. The first was a pubic hair, possibly the assailant’s, that was collected from the victim on the night of the assault. The second was biological material retrieved from underneath the victim’s fingernails. Either one could contain the biological blueprint of the true assailant and prove Steven Avery’s innocence once and for all.
One more thing about that box. It would be retrieved from the basement vault again ten years later, this time in connection with one of the highest profile criminal cases in Wisconsin history. Two attorneys in that case would raise Cain about lax security procedures for storing evidence in the clerk of courts office.
A few weeks later, Steve Glynn filed a post-conviction motion in the trial court seeking release of the pubic hair and the fingernail scrapings for DNA analysis. Still on the bench, Judge Hazlewood conducted the hearing a few months after that. Glynn asked the court to release the evidence so it could be tested for DNA and run through the state’s new sex offender DNA data bank. The case was an extremely close one, Glynn argued, and since the day he was arrested, Steven Avery had consistently professed his innocence.
Under the law, newly discovered evidence is not a sufficient basis for granting a defendant a new trial unless the evidence creates a reasonable probability that there would be a different result on retrial. At first blush, the pubic hair and the fingernail scrapings from the court file weren’t “new evidence” since they existed at the time of the original trial. But Glynn argued that they should be treated as such because the current DNA analysis employed science that did not exist in 1985, so depending upon the results of the testing, his client should be granted a new trial. All he was asking, he pressed convincingly, was to have it retested. And besides, wouldn’t the public itself benefit if the test results proved his client was innocent—especially if there was a hit in the data bank and the real assailant was brought to justice?
Jim Fitzgerald argued that Glynn hadn’t laid a sufficient foundation to justify retesting the evidence. But Judge Hazlewood sided with the defense and granted the motion. “It’s arguably probable that the result of the testing may be beneficial and consistent with justice,” he ruled, “and justice is best served by allowing a test under controlled conditions by agencies, persons, or entities with appropriate skills in this area.”
The attorneys settled on a private firm in Virginia—Laboratory Corporation of America—to conduct the DNA analysis. It took a long time, but nine months later, the results were in.
The scientist who performed the analysis, Anita Lynn Matthews, compared the DNA in the pubic hair and the fingernail scrapings to known samples of DNA from Penny Beerntsen and Steven Avery. The pubic hair did not contain a sufficient amount of biological material for analysis, but the fingernail scrapings did. A portion of the specimen contained Penny Beerntsen’s DNA, but not Steve’s—and both their DNA was excluded as a possible contributor to the rest. The bottom line—someone else’s DNA was retrieved from underneath Penny’s fingernails after the assault.
Armed with physical evidence suggesting someone other than Steven Avery committed the assault, Glynn called Judge Hazlewood’s judicial assistant and scheduled a hearing on his motion. The defense would be requesting a new trial based upon newly discovered evidence under Wisconsin Statutes Section 974.06.
A few weeks later, Glynn filed a second unrelated motion. Like Jack Schairer did in Avery’s first appeal ten years earlier, he alleged that the state had withheld exculpatory information. But this time, it wasn’t about a mystery man on the beach or a neighborhood canvass that came up empty. This time, the allegation was more specific and it sounded like it might even have teeth.
Never accused of being overly discreet, former Detective Leo Jadowski had spilled the beans. Leo told Glynn’s investigator that the sheriff’s department had identified an alternate suspect from Sheboygan County early on in the investigation who matched the description of the assailant, but the prosecution never shared the information with the defense. Glynn argued that the state’s conduct violated his client’s right to due process under the law and entitled him to a new trial. He also wanted to ferret out the facts at an evidentiary hearing.
Jim Fitzgerald got right on it. He instructed the newly promoted Chief Inspector Gene Kusche to interview each of the detectives who worked the case back in 1985 and ask them if they ever heard about an alternative suspect from Sheboygan. Over the next several weeks, Kusche conducted a series of interviews. Although several of the detectives had retired, he managed to catch up with all of them. The settings for the interviews varied; some were at retired detectives’ residences, one was at a restaurant, and another was at Leo Jadowski’s pawn shop.
Kusche tape-recorded each of the interviews and forwarded the transcripts to Fitzgerald so he could prepare for the hearing. The detectives circled the wagons. “Who, me? I never heard anything about an alternative suspect from Sheboygan,” was the common refrain. But years later, an independent investigation conducted by the Wisconsin Department of Justice would suggest otherwise.
On July 30, 1996, Steven Avery was back in the same courtroom where he was convicted a decade earlier. Judge Hazlewood conducted the hearing on Glynn’s motion for a new trial.
Anita Lynn Matthews, the scientist from the lab in Virginia who tested the fingernail scrapings and the pubic hair, testified by phone. She explained the fundamentals of DNA science and the latest testing procedures, saying that DNA is a microscopic chemical compound found in the nucleus of every cell in our bodies. It’s divided into pairs of spiraled strands called double helixes. Each cell contains about ten thousand double helixes, and each double helix contains twenty-three pairs of chromosomes, with one member of each pair coming from the mother and one from the father.
“As human beings,” Matthews continued, “we share many physical traits—we all have hair and eyes and skin, for example, so we have many similarities in our DNA. But there are regions on each strand of our DNA called loci, where the number and the order of chromosomes vary from one person to another. It’s these regions that scientists examine to identify the source of a particular specimen of DNA.”
Then Glynn asked her how scientists test the DNA to determine who it came from.
“Police submit a questioned sample, or specimen, of biological material—blood, skin, hair, semen, saliva, that sort of thing, along with a known sample that was collected from the suspect,” Matthews explained. “DNA testing is simply a comparison of the DNA patterns between the questioned sample and the known sample. If the DNA profiles are consistent with each other, then they could have originated from the same source, and we assign a statistical likelihood of that, such as 1-in-2 billion Caucasians, or 1-in-5 billion Hispanics, etcetera. On the other hand, if the DNA profiles are different from each other, then they could not have originated from the same source.”
“What did you find in this case?” Glynn asked.
“In this case, there were two questioned samples—fingernail scrapings and a pubic hair—and the two known samples, one purported to be from Penny Beerntsen and the other from Steven Avery.”
“Specifically, how did you analyze the pubic hair and the fingernail scrapings in this case?” Glynn asked.
“The DNA testing performed in this case involved first purifying the DNA in one-half of the evidentiary sample to remove cellular debris, resulting in a clean DNA solution. Then I used the polymerase chain reaction (PCR) technique to amplify the DNA at the specific regions, or loci, where variability is generally noted. PCR essentially copies the DNA until there is enough to analyze. Then a detection method is applied to visualize the different ‘alleles,’ or forms of DNA, which are present at each locus, permitting a comparison of the DNA in the evidentiary sample with that from the known samples.”
Matthews explained that after isolating DNA from the preparations of the fingernail scrapings, she was able to characterize the DNA at three loci. The results of the first sample were consistent with the known sample of DNA from Penny Beerntsen. But the results of the second sample indicated a mixture of DNA from at least two individuals. And, as Matthews testified, “neither Penny Beerntsen nor Steven Avery could have contributed to the number eight allele—it had to have come from some person other than Steven Avery or Penny Beerntsen.”
Jim Fitzgerald fought tooth and nail against the defendant’s request for a new trial. The defendant’s own expert can’t say who else contributed to the DNA, he argued, only that it doesn’t belong to either the defendant or to the victim. And he reminded the court that Matthews admitted on cross-examination that DNA can be transferred casually. It could have come from the victim’s spouse, her children, or even the nurse who collected the fingernail scrapings at the hospital that night.
“The only new evidence the defendant really has,” Fitzgerald said, “is that some of the DNA underneath the victim’s fingernails came from somebody else, Judge, and that’s not enough for this court to grant a new trial.”
Judge Hazlewood agreed with Fitzgerald, and on September 23, 1996, he issued a written decision denying both of the defendant’s motions.
While the judge agreed with Glynn that the DNA evidence was “truly newly discovered in the sense that the type of DNA testing at issue here didn’t exist in a practical sense at the time of the trial,” in order to warrant a new trial, the judge explained, the newly discovered evidence must create a reasonable probability that there would be a different result on retrial—and in this instance, he ruled, it didn’t.
The ruling on Glynn’s second motion—that the prosecution failed to disclose information about an alternate suspect from Sheboygan—was even worse for the defense. Fitzgerald had planned to call each of the detectives and former detectives that Kusche had interviewed, but Judge Hazlewood denied the motion without even granting the defendant a hearing, so the detectives didn’t even have to testify.
Steve Glynn did what every good defense attorney does who loses at the trial court level but still believes in the rightness of his client’s cause—he appealed. So ten years after the conviction, and five years since the initial appeal, the case of State of Wisconsin vs. Steven A. Avery was back in District II of the Wisconsin Court of Appeals.
As Jack Schairer did in the first appeal, Glynn began his brief by pointing out that Penny Beerntsen was the sole eyewitness against his client and the only one to identify him. Sixteen other witnesses testified that Avery was elsewhere at the time of the attack, but the jury nonetheless convicted him. Then he got to the meat of his argument.
“Given the extent of her injuries and the blood on her hands, one source of the DNA underneath the victim’s fingernails was certainly the victim herself,” Glynn argued. “Likewise, given her clawing at the assailant and his forcing her to stroke his penis with her right hand while grabbing that hand with his own, another source was almost as certainly the assailant. While the DNA results themselves could not show whether there were only two sources, the most likely conclusion on the facts in this record is that there were only two—the victim and her assailant.”
Glynn also addressed the state’s argument that the DNA could have come from someone other than the perpetrator. “It was the perpetrator whom the victim clawed at with such force as to break her own fingernails, and it was the perpetrator who forced her to stroke his penis with her right hand,” he wrote. “The state’s assertion that the DNA could have originated from some sort of casual contact with someone else is wholly speculative on this record.”
Then he addressed the trial court’s denial of his second motion, his request for a new trial based upon the state’s failure to disclose that they’d had an alternative suspect in Sheboygan. He argued that Judge Hazlewood erred when he summarily denied the motion without permitting him to call the detectives who investigated the case and question them on the record.
“Evidence that the sheriff’s department had identified an alternate suspect in the next county who matched the description of the perpetrator is material and exculpatory,” he began. “This was an extremely close case, and the withheld information goes directly to the sole contested issue at trial—that of identification. There was a strong case on Mr. Avery’s side in terms of alibi, and no physical evidence tied him to the crime. Under these circumstances, evidence that someone else from a nearby county who resembled the assailant was suspected by the police creates a reasonable probability of a different result on retrial.”
But on September 3, 1997, the court of appeals sided with the state and affirmed the lower court’s decision. Glynn filed a petition for review with the Wisconsin Supreme Court a few weeks later, but the petition was promptly denied. For the second time in the eleven years since he was convicted, Steven Avery came up short in his quest for a new trial.
Steve Glynn was disappointed with the court’s decision, but he wasn’t really surprised since he knew that the cards are stacked heavily against defendants when their cases go up on appeal. Avery, on the other hand, was more than just disappointed—he was devastated. He’d spent the last eleven years of his life in prison for a crime he swore he didn’t commit, years he should have spent on the outside with Lori and the kids and the rest of the Avery clan. Instead, he and Lori were divorced and he was estranged from his children. The state had taken it all away.