This is not an article about the controversial murder of Theresa Halbach in 2003 that Avery was convicted of. Analyzing that case would get hairy quickly. But this is article is about the clear-cut wrongful conviction of Avery for the 1985 sexual assault of Penny Beerntsen. In 1985, Beerntsen was jogging along the beach of Lake Michigan. She was assaulted, dragged into the woods, and the perpetrator attempted to rape her before running away. When the sheriff’s deputy who interviewed the victim heard the description, she said, “that sounds like Steven Avery”. Law enforcement is not supposed to do that. Suggesting things like this contaminates the witness. And this case was never the same. She was shown a sketch of Steven Avery and identified him as the attacker. But this was done before she was shown any sort of lineup. And when she was shown a lineup, surprise, surprise, she identified the one man who she had been shown a picture of previously.

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Contradictory Evidence

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At trial Steven was able to provide 16 alibi witnesses. He was miles away pouring concrete with his family at the time of the assault. And every minute of his time around the assault was accounted for. But it didn’t matter. Beerntsen said that the perpetrator was about 5’6”. Steven Avery is 6’0” tall. Beerntsen said her attacker was wearing white underwear. Steven Avery didn’t even own underwear. But despite all this Avery was convicted.

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Forensic Evidence Leads to the Actual Perpetrator

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It wasn’t until years later that the pubic hairs in the case were tested, and there was a male pubic hair on Penny Beerntsen that was excluded as being Avery’s. The hair was run through the database, and it was a cold hit for Greggory Allen. Allen was a serial offender of sexual crimes against women. He had been charged by the very same prosecutor 2 years prior to Beerntsen's sexual assault for lewd conduct on the same beach very near where Beerntsen was sexually assaulted. Back at the time that Avery was being charged, a police officer from a nearby city advised the sheriff’s office that Greggory Allen who was being surveilled because of his frequent sexual crimes, was missing during the time of Beerntsen's attack. And it was suggested that he was the perpetrator. Three other people independently communicated to the sheriff’s office that Allen was a likely perpetrator of this offense. Did the sheriff’s office investigate Allen? No. Did they include Allen’s picture in lineups when shown to Beerntsen? No. Instead he was allowed to continue committing sexual crimes while Steven Avery sat in prison for a crime he did not commit. It took 18 years for him to be freed.

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Takeaways for the Falsely Accused

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False identification is a serious problem. Challenging identification procedures becomes very important in cases such as these. If you are falsely accused, make sure that the proper procedures were used to identify you. The Lake Michigan Jogger case also illustrates how important it is to investigate potential alternative perpetrators. It’s unconscionable that the sheriff’s office was given information suspecting that another person committed the crime and they never investigated. But there’s no way to force a police department to investigate alternative perpetrators. That’s where a skilled criminal defense attorney becomes invaluable. They can investigate leads and develop alternative theories the police may not have thought about.