‘Making A Murder:’ Here’s Why Steven Avery’s Appeal Might Go Down The Drain

‘Making A Murder:’ Here’s Why Steven Avery’s Appeal Might Go Down The Drain
Making a Murderer Facebook

The ten-part Netflix docuseries Making a Murderer chronicles the convictions of Steven Avery.


Majority of the coverage in the documentary revolves around Avery’s second case, the murder of 25-year-old photographer Teresa Halbach. There has been significant evidence in the case suggesting that someone else killed the victim. However, the state of Wisconsin denied the defense based on the Denny rule from arguing that a third party, and not Avery and his nephew Brendan Dassey, had committed the crime.

Avery was convicted for the murder of Halbach in 2007. He had previously spent 18 years in prison on a sexual assault charge until DNA evidence proved he had not committed the crime.

In proving third-party liability at trial, a defendant has to show concrete evidence that provides a direct link between the third party and the crime, according to Wisconsin Law Journal. This takes birth from a 1984 Wisconsin Supreme Court ruling in the case of State v. Denny.

Like us on Facebook

Under the case, a legitimate tendency test is required by the defendant to claim a third-party liability. According to a Reddit user, for this to happen the defense has to provide motive, opportunity and evidence that connects the third party to the crime.

In his previous conviction, a sexual assault charge, Avery had referred to newly discovered evidence to form the basis of his appeal. Testing found out that the DNA collected from scrapings found under the fingernails of the victim did not belong to either the victim or Avery.

Moreover, Avery contended that his new evidence of third party liability should have considered his 16 alibi witnesses and the description of the perpetrator given by the victim herself.

The court denied Avery’s appeal on the basis on Denny. The court said it wasn’t enough “that Avery could point to another suspect and also demonstrate that DNA from the victim did not belong to her or Avery.” With this evidence that suggested third party liability, the court said that, at best, it provided “a possible ground of suspicion against another person.”

Also read: Dwayne ‘The Rock’ Johnson Running For Political Office?

Liked this story? Subscribe to our newsletter or follow us on Twitter and Facebook for more stories.


  • Gaia

    Isn’t the grounds of suspicion enough? If there is even a possibility that someone else committed the crime, shouldn’t there be another trial?

    • LivinInTheUSA

      No, suspicion is not enough. In Wisconsin the Prosecution would have to prove opportunity to commit the crime and a direct connect. However, in Wisconsin, as the result of State v. Denny, a Defense can introduce not other suspect other than the States unless the Defense can prove; opportunity to commit the crime, direct connect, and motive. In short, in Wisconsin the State not only places a burden of proof on defendant to prove innocence it places a burden of proof greater to prove innocence than the State has to prove guilt.

      • Gaia

        Thank you for your comprehensive answer. That helps me to understand. I still hope for an Avery/Dassey retrial. We shall see….

        • LivinInTheUSA

          You’re welcome. I suspect both will be grated a retrial at some point, but I doubt re-trials will be granted by the State. Personally, I doubt Zellner would be bothering with the State Appellate had it the appeal not already been put into motion before she took the case.

          Technically, the State should be granting a retrial based on the appeal. The reason for this is appeal basis is illegal search & seizure, which I believe happened. The original warrant on the 5th was for properties own by the Averys, but the trailer and its contents (Including the guns) & property (Including the garage & fire pit) belonged to Johnson. A warrant for that property was not obtained until the 9th, so the evidence seized from Johnson’s property between 11/5-11/8 should not have been admissible.

          Frankly, having read the case the the investigative reports the entire handling is a mess. The investigative report show the victim’s car was seized into evidence on 11/3 and Avery was made a suspect of non-negligent homicide that very day. How a car can seized into evidence than found two later on his property is beyond me. However, on 11/3 there was no probable cause to establish a non-negligent homicide occurred.

          The State’s test results were certainly oversold to the jury whereby the cuffs were clearly not used and the Luminol test results indicated neither the victim’s blood or bleach cleanup were found in the garage or trailer. The did match the bullet to the gun found in Johnson’s trailer, but they did not match it to any casing found nor did they do a trajectory analysis to explain how it got under the compressor. However, the real oddity with the bullet is it had no blood or skin staining. Normally, when a hot bullet comes in contact with either flesh or blood the heat from the bullet causes them to be seared to the bullet and it is the seared material that provides a source of DNA. That didn’t happen with that bullet, instead the bullet was washed and wash tested or the DNA which within the was was also found the lab technicians DNA. Thus, who knows if the lab technician also washed in some of the victim’s DNA in the process. The State sold this, to the jury, as the control sample was not contaminated. However, the control sample is little more than known sample from the victim (In this case, likely from the blood in the cargo area) it was the test sample that was contaminated and the State should have never presented findings from a sample known to be contaminated. Frankly, the ballistic match seems too consistent with the test bullet pulled from the shot tank.

          The hood latch “sweat” DNA seems more evident of tampering than it does incriminating. The State lab never tested for a source of the DNA on the swab delivered to the lab on April 3rd. Thus, how anyone would know the source of DNA to be “sweat” without ever testing is beyond me. However, it was DNA left from contact degrades over time. Typically full profiles can be obtained within the first 2 weeks from contact and thereafter partial profile for a period of 6 weeks, The upper limit for a profile has been 50 days, but the swab the officers delivered was some 153 days later yet somehow produced a full profile. The lab clearly opened the hood on the 7th, since that is when they took the photograph of the battery, and it stands to reason if the lab suspected the suspected opened the hood they should have swabbed the latch. Disconnecting the vehicle battery is common practice in vehicle recover and “sweat” certainly would have been easy to obtain from a jailed suspect.

          The blood vial hole being made by the nurse is misleading. Once a sample is taken by a nurse the sample is sent to a lab for testing. Thus, it is the lab protocol that defines if the hole should be present. Normal protocol, would be to remove the cap take what is needed for testing than replace the cap with a new. The reason or this protocol is to prevent cross contamination of a sample with any contaminates that may have been deposited on the cap during transport to the lab. The claim evidence tape was broken by Avery’s prior attorney is complete BS. The box that was opened, by his prior attorney at the DA’s office, was that of nail & hair clippings and DNA swab from Avery had been taken earlier. It was those samples that his prior attorney had used to vindicate him from his prior conviction.

          In short, the entire investigation should have been done to solve the crimes surrounding Ms. Halbach’s death. However, instead the entire focus from the day she went missing appears to have been to get Avery convicted. Dassey’s account of the crime clearly did not hold up the State forensic testing. Ironically, the State appeared to leveraged Dassey as if lead investigator rather than a witnesses. Clearly, additional forensic testing should have been done but it seems they limited the tested and mislead the jury on results obtained in order to get a conviction. Thus, to your point, I believe at minimum both should be granted a retrial. However, I will add to this by indicating Ms. Halbach should be granted a proper investigation in order to obtain justice for Ms. Halbach.

  • Dave Brooke

    The purpose of the Denny Rule is to GUARANTEE conviction by denying a logical defense to anyone that is ACCUSED. Almost impossible to overcome as can be seen when Steven was denied relief in 1995/96 appeal. Everything presented PROVED he could not have done the crime, but was denied on “technicality”.

    • LivinInTheUSA

      I certainly have to agree, given how State vs. Denny was interpreted. The interpretation was that a defendant can introduce no other suspects, other than the State’s, unless the defendant can prove motive despite the State does not have to prove motive. Thus, the State’s interpretation was such that a Defendant has a higher burden of proof to prove innocence than the State has to prove guilt. .

      Another interesting interpretation, done during pre-trial, was that of Brady v. Maryland. The States interpretation was that the State gets to decide was is truly exculpatory evidence whereby what must disclose per Brady Disclosure. The State’s ruling was a defendant must subpoena for information not disclosed, which is interesting in itself because the State would be denying information necessary to obtain a subpoena, and if a defendant does not issue a subpoena by the time the discovery phased close the State ruled it no longer has disclose the information to a defendant. Additionally, it was clear during the Avery trial that the State does not enforce the closure of the discovery phase to the State.

      One can certainly argue, given the State’s interpretations of both State v. Denny & Denny v. Maryland and the State not applying the same rules between the Defense & Prosecution, if it’s possible to obtain a fair trail in that State.

      • Dave Brooke

        The Denny Motion needs to be taken to US Supreme Court and banned from use due to the violation of rights for defending an innocent person. If not banned, put strict limitations to its application by the prosecution. It prevents an innocent person from defending themselves.

        It is true, that when someone is ACTUALLY guilty they should not be able to point the finger at someone else to create “reasonable doubt”, but when someone else DID COMMIT a crime it is almost impossible to defend if you CAN NOT CLAIM YOU DID NOT do it, so someone else had to have done it.

        It is easier to prove you DID something, if indeed you did, than to prove you DID NOT do something. Much like proving certain foods cause or prevent cancer. How do you PROVE “it” prevented cancer? Maybe you would not have got cancer anyway?

        • LivinInTheUSA

          I agree, the entire basis of the Denny motion goes against the concept of presumed innocence.

  • Dave Brooke

    As I see it, Kratz STACKED THE DECK with the Denny motion much like having a “Photo Lineup” with 10 photos of the same person to chose from and not allowing any others to be considered. He had virtually no evidence and had to PREVENT the Defense from defending their client.

    The fact that the State did not investigate anyone else, means the defense could not use anything but evidence offered. (All 10 of the same photo.) It is a travesty that the authority Kratz quoted to back up his motion was the 1996 Avery case WI Supreme Court decision!!!! Steven was later PROVEN innocent even though they used the Denny Motion to deny his relief in 1996!! That alone should have been reason to DENY use of the Denny Motion!!! The Judge had to be in on the conspiracy.

    Kratz complains that Making a Murderer left out key information. More information in favor of the defense was left out than for the prosecution. Yes they did not emphasize very much about the Denny Motion, which would have explained why key evidence never was presented by the defense. Only now after seeing comments by people about the program am I coming to realize what really happened. Primarily because of the Denny Motion, STEVEN WAS CONVICTED BEFORE THE TRIAL, AND COULD NEVER HAVE BEEN FOUND NOT GUILTY!! Worse than a kangaroo court.

  • Kochsboy

    Anyone who things Avery will ever see a honest day in court in Wisconsin has never been here. It is a myth since Walker championed truth in sentencing for his man david Koch.