UNREASONABLE INFERENCES-Michael Griesbach

sign up now at chumbuck Casino dot com. That's chumbuck Casino dot com.

case about innocence and guilt. On July twenty ninth, nineteen eighty five, Penny Beernstein set out for a late afternoon jog along a remote stretch of beach on the Lake Michigan shoreline, unaware that just minutes later, a deranged sex offender would shatter her world to pieces. It would be a jog that would change her life forever in more ways than she could have imagined. Within hours, police and prosecutors zeroed in on Stephen Avery, a known offender who

was out on bail for another crime. Armed only with suspicion and lacking a warrant, they dragged their suspect from his home and took them to jail. What followed was a twenty year crime saga. The gripped the entire state, made Stephen Avery a household name in Wisconsin, and left the local justice system nearly in ruins. My special guest this evening is journalist and author and prosecutor Michael Breeseback, and we're going to try to connect with him again.

We're having technical problems. I just was speaking with Michael breesback for the last ten minutes or so previous to getting the show back on the road again from being disconnected.

nineteen eighty five. So let's go back to that must be important why you started your book that and describe the scene that you first described in the very beginning of your book on July fourteenth, nineteen eighty five.

they didn't have enough to bring him in. And so what happens after that the reader, hopefully in the back of his mind, is her his or her mind is thinking, I wonder if this guy's up to it again, because it quickly moves on today that you described that that the main part of the book opens.

And it's a community. It's actually about eighty thousand, that eight thousand and eighty thousand, quite right, and we're right on Lake Michigan, and it's a real scenic area and it's just you know, part of Wisconsin. The first crime occurred in a remote action as you were reading the beach on Wake Michigan in a state forest called Point Beach State Forest, with a woman who was jagging along

the beach. She was in the habit of jagging. She was a fitness physical fitness instructor at the WAYNCAA, and she had a six mile jag per day, really up and down the beach, but a very desolate part of the Lake Michigan beach where the first crime occurred.

the way. Tell us a little bit about a little bit more about Penny, why she was doing this, uh, this this hour run, and then what she finally encountered while she was jogging that night.

their children to the beach that day. And as the day, late afternoon comes along, Penny decides she's going to take her her job. She was very fit, and the public beach where they were is a regular public beach, plenty of people there enjoying the day. But when she took her jag from that, she went north of there, and it very quickly becomes a desolate area. She had passed sort of a scraggly looking fellow on the way away

from the beach as she continued jagging north. Didn't think too much of it, although he had a leather jacket on, and you know, it's in the mid eighties, and she kind of wondered about that, and the guy made some tim into him. But it's on her way back forty minutes later that this fella basically jumps out from behind a poplar tree or bush close to the water right

at the beach. Penny, I don't want to give the whole book away, but I think that the people will, the readers and your listeners, though they need to know what the first crime's about, because this is kind of a templicated story. But Penny angles out into the water. She tries to run away from this high stepping over the waves, and not able to do it. She thought about diving into the water, but she was afraid he

was going to grab her and strangle her. And now he overpowered her and manhandled her over the side the sand dunes. Basically, she's a very petite woman, but she's also a very strong woman. And by the way, Penny appreciates the fact that this book was written. She's very supportive of it. She wrote a blurb or a review on the back of the book. So she's fighting with us using her name, and she's gone on to do

some really good things in the criminal justice system. But anyhow, despite her kicking and struggling and trying to push back against this assailant, he got her over the sand dunes header where no one could see her, then into the forest and just brutally attacked her.

it's actually sexual intercourse without consent. And it really doesn't matter. It matters to the victim. And Penny fortunately was able just through kicking and screaming and pleating and not getting and in her mind she wasn't raped in the law, under the law's eye, she was because he pore off her clothes and when she said, my husband will come looking for me, he swore, used every name you could imagine. He pounded her brutally on her face. She received serious injuries.

Tenny was left naked, bloodied, badly bruised, completely dazed, kind of staring off into the waters of Lake Michigan after this fellow left. It's just a horrible crime, as bad as it can get for any woman to experience.

She kept her wits about her by telling, you know, she's going to be late getting back to her husband. She's sure he'll be out looking for her. The assailant to win, and in the end I think that's what saved her. But after a while, after he beat her basically to a bloody pope, he ran away, scampered into the woods.

for her. He had already sent some some kids on a jet ski north looking for her, and he had already called it's amazing, He had already called nine one one, and there was an ambulance waiting back at the parking lot at the beach. When when he tried, actually he carried his wife down the beach until she got sick, and then she walked the rest of the way. So

that's how she was found. And then she was taken quickly to the hospital in Manitowac, which is a slightly larger city here where I live and work in and uh treated at the hospital.

police should not do. They closed their minds and they thought he had a bear after all, and he lived sworded near there. He was no lifer there, and I guess it's reasonable that they thought it was him, but they closed their their minds after their and just out up with just Avery must be the guy, basically.

you can tell us why. The reason is because her relationship to Steven Avery is important, like where she lives, So tell us why she thought that, and what was her relationship and what did she know or what she did she think she knew? About Stephen Avery.

was going to assault her. She pointed out that her baby was in the car, even that he wouldn't go below a circle.

eighty five come out much later. So tell us a little bit about Sheriff Cook Kheric and hopefully that's the way you pronounce his name, So it's.

Deputy Boat Duty Devorrex, she thought it was Avery. She used the name Avery, and she found it pretty certain about it for whatever reason. So Sheriff Kusurrek at that point thought, oh, it's probably Stephen Avery. So he had a photo array prepared. But before he did that, he had a police artist, his detective Cuchet, do a composite with a description from Penny Burnsam And here's the thing

where they blew it. At least in my opinion and in anybody's opinion, I think they had the mudshot of Avery on this scene when the composite sketch was drawn, and amazingly, the composite sketch, the police artist's sketch looked almost exactly like Avery's mugshot. So it makes you wonder whether the police artist didn't take a look at Avery's mugshot and kind of suggest to the victim while he was doing the composite sketch, well, maybe could the person

look a little bit more like this? And I have to tell you it's hard. Composite sketches are tough when the person had facial hair, you know, because people with beards you're missing a large part of the features of their faces. So you kind of looked with eye color and length of hair and that sort of thing, and the sheriff sort of you know, he knew about the Avery's too, so he was more than happy to make a case as soon as he thought that Stephen Avery was his guy.

not fully aware too. At this point, we talk about this heinous crime where he pulls this sheriff or pulls this woman out of a car, and there is, if I'm correct, not correct, that there is talk about dragging her into his vehicle, so you know, and then you say, the sheriff knows about his past, and the woman that lives across the street, this is a deputy, thinks that she knows his family, so that they instantly think that that this person that's capable of this rather heinous rape

and assault on the beach has to be this guy. Is there a sexual Does this Stephen Avery have a sexual history? Maybe fill us in on all the criminal past that he has so that maybe we can understand what they think that this person is capable of. And certainly as soon as there is some suspicion, they pick him up and run with it. So what is it about his criminal past, that implies that he's able to do this crime of this nature.

He was out in the community. But when this crime occurred, but he had been charged six months earlier with this incident of basically ramming this woman's car, neighbor's car off the side of the road, and he had kept an eye on this woman for the month's preceding. I said, was very disturbed individual, and really he was. He would watch her with binaculars down the road as she left her vehicle five thirty six in the morning in the summertime. He ran out to the road naked right in front

of her car. One time he masturbated at the hood of his truck while she drove by. I mean, one's sick puppy, I guess is the best way to put it. Yeah, So I called it reasonable that it's.

to work. Now, what happens when now continue with the story then, and what do police do now that they think they have Steven Avery in their sights?

they didn't. They used kind of a trick. I think they had Stephen Avery's uncle, who also was a sheriff deputy, and they used him to get into the house and then they arrested Avery, the only thing they had at that time. And again, you know, you can look at what they did at that point is reasonable. At this point, I think what they did is still reasonable. Other than that getting a warrant, I guess that's one hundred pound

gorilla right there. But in terms of thinking Avery was it, it was reasonable because at this point the victim, remember, had done the composite sketch with the police, and she actually picked Avery out of a photo array where there were six or eight suspects and she was able to say, yep, that's the guy who did it, and that was Stephen

Avery's mugshot. However, it became pretty clear a trial that once they did the composite sketch, in her mind, that composite sketch not the real one, but in her mind that sort of became her assailant. But at any rate, you know, they had an identification, so they felt they had enough and they made an arrest.

happened there? Like, not to say, not to accuse, but say an assumption of what may have happened with this young guy and the sheriff and the deputy and a small place and a character like Steven Avery. What do you think happened?

The judge at the trial mentioned that that sketch, and these are the judges' words, bore an uncanny resemblance to the mugshot was in the sheriff's pocket that night at the hospital. And the last thing to sit here is that eventually and we had too far ourselves here but in the wrongful conviction lawsuit, because you know, we might as well let the cat out of the bag. Here it's called unreasonable inferences, of course, because in the end it wasn't Aver that did this, but it draw suit.

The defense lawyers convinced that they pretty well had it proven. Jeane Cuchet, the police art a sketch pretty much either traced it or not quite traced, but drew it off of or had some access to that mug as he was doing this sketch, right, misketch, I can't prove that. And you know, and Jeane Cluchtes and no with us, he was actually a very nice person. I did some

work with him, but he was a character. And I will say that sometimes police, if they think they have the right guy, some of the rules get bent a little bit in their minds just to do what they think is is justice. Getting a bad guy like Stephen Aby off the.

and the duration and everything else. So we know the timeline tell us what happens with Steve Avery and police arresting him.

to prove he was. There was a receipt from the shop Ghost Store, which is a department store here chain basically in Wisconsin, showing five thirteen pm and the assault. Tenny Burnson did keep very good track of her time. She was a routine runner. She ran, she knew how

long things took, and she had her watch. The act ended at four to five pm, so within about an hour and thirteen minutes, Stephen Avery with his family, including the newborn twins, are at the checkout counter of the shop Ghost Store, thirty miles north of where the assault occurved.

But he also would have had to have gotten from the location of the assault back to the parking lot, because that's the only place to park there in street shoes, and that's about a three quarter mile walk, and given home to where he would have had to pick up his wife and children, or actually to his parents' house

excuse me, which is about twelve miles away. The police ran a kind of a check if it was possible for him to commit the crime, given the receipt at chap Go ten or fifteen miles over the speed limit, just to make it possible. And that doesn't even include a staff to pick up the kids and get him in the car, and that sort.

call some witnesses. These two officers that say they know they had seen Steven Avery with this black leather jacket that matches the description perfectly of the black leather jacket that Penny said her assailant was wearing. I can interject here really quickly too, that Stephen Avery had blue eyes Penny burns. And the victim immediately told the police and told them several things that her assailant had brown eyes.

She also told the police that the assailant had a sort of a beer belly, sort of pudgy, and that he was about five six. I believe well, Steven Avery's only five feet one inches tall and at the time he wasn't a pudgy and Steven Avery, as I said, had blue eyes. She also told the police, and the

police were very interested in this issue. They were hoping that she would say that the assailant's hands were greasy and that they were smelly, that he was kind of he smelled head because they knew that Steven Avery's hands were always greasy because he worked at a car a salvage shop, and he professionally had greasy hands. Kenny Birds had said, now her assailant had perfectly clean hands, no grease, no dirt, no grime, and her assailants smelled, frankly smell good.

He said. There was nothing, no how older, about her assailant. There are lots and lots of inconsistencies, including the alibi that Avery had twelve or fifteen. I think witnesses had said he couldn't have done it because he was with them all day at the salvag.

and Billy Junior. So I don't know if any of your listeners are familiar with the American movie Deliverance, but it's close to that kind of there at the old Avery salvage here.

their victim after a crime. And you can imagine Penny at home recovering a couple of days after leaving the hospital, receiving this call from this guy who says, you know, is Penny there and or is Tom there? And he knows her number, he knows where she lives, presumably, and this is the mo of who had turned out actually did assault Penny Burson. But anyhow, Stephen Eavery was in jail with no access to a phone, so it couldn't have been him. But the police ignore that. They tell Penny,

you know, you must you have the right guy. Let us handle this. So the police did their thing. And when it gets to the prosecution, that's when the trial is when the case I think, really takes off in terms of how the system is not supposed to work.

an unfortunate thing. She seems to be a real fighter and believes that Steven Avery is innocent, So tell us what happens there and who ends up being tell us about Judge Fred Hazelwood and his reputation as a judge before all of all this occurs.

as prosecutor or as a defense lawyer. Even the defense lawyers get pretty jaded after awhile and they don't really believe their clients, and they say they're not guilty. Hopefully we're not charging people they're guilty. But she was so convinced that her client was innocent that she would not go down there to investigate the case or take pictures or talk to people or anything. Penny filed eighteen motions. Excuse me that Penny Resa, the first attorney, filed eighteen

motions in court. I think one was granted and it was a fairly meaningless motion. And then she became ill, there was a physical illness, and she had to leave the case. So another public defender was then appointed and

had to come up to speed really quick. Judge Fred Hazelwood was the judge in the case, a trial judge, and I think it's I'm hoping that it comes out in the book what kind of judge he is, you know, and there may not be too many of those left, the very kind of down to earth, friendly, humorous judge trying to do his best. And the trial. You know, it's really a book that includes a lot of the trial and how trials work, how jury selection works, how

jury gets sequestered, and was in the United States. You know, they spend the time in a hotel, and of course it's a cold time. It's in January. When this or December, I should say when the trial occurs. And I'll say one other thing, just that maybe there's some interest from your listeners here too. The time of This trial was about two weeks before Christmas in December of nineteen eighty five.

And if you're a criminal defendant and a serious case like this one was, it's hard to get a worse time to have a trial than around two weeks before Christmas, because the last thing the jury wants to do is send a victim like Tenny Bernston home with a not guilty verdict. Penny got up on that stand and explained, you know, and was so good at explaining the trauma of everything that happened to her and was a very

very sympathetic person. And as much as the jury would look at this and say, you know, we can't find guilt unless it's proved beyond a reasonable doubt, it would be really tough for them to send that not guilty

verdict because that would just crush her. And right around Christmas, people, the people are you know, sugar problems are dancing in their head, and they're worried about their shopping, and they're not paying perhaps quite as close attention as they should be to legal issues like proof beyond a reasonable doubt and circumstantial evidence and credibility and that sort of thing.

As much as you you try to make sure that doesn't happen a child, but you know, so you had jurors answering questions about, well, do you know the Averis and how well sure I used to you know, know them from school before you know, Johnny got kicked out of school or something like that. So some of those things that come out. And then at the same time, a few of the jurors were, you know, this police officer I go to church with, and this was my boy scout, my son's boy scout leader, things like that.

So it's a tough jury for the Avery, for Steven Avery to have as far as the trial itself. You know, if you don't have the goods on a trial side, what you do is you play to emotion. It's the thing that prosecutors should not do. We're supposed to be interested in, you know, truth and justice and frankly it has more to do with reason. And this is the proof,

you know. But this prosecutor knew he had a weak case, and he really played on the jury's sympathy, including to the point where he had the victim, Penny and her husband Tom, basically reenact the crime in front of the jury.

Not quite all the way, but he had Penny's husband show how her assailant grant her and what you know, how he pushed her onto the ground and their Penny is on the growth with her husband on top of her, only using this to try to show the jury how horrible this claim was and really rely just and sympathy. So the prosecution didn't have much. And when you don't have much, you know, you explain to what you do it?

And how was it not grounds from some form of appeal? And for us simplistic folks, how to explain why this is wrong?

what occurred more helped the jury understand the crime. Perhaps, I think, you know, with the attempted murder charge, the prosecution could argue that exactly how the beating occurred would be relevant because we have to show what's called unequivocal intent to commit the murder, that he absolutely intended to kill her. So exactly how the assailant grants her and what he did with her, I suppose, you know, could be deemed relevant and not just an appeal to emotion.

But as a prosecutor and as a lawyer, you know, it just didn't pass the smell test. I know, when a prosecutor is doing something just to show emotion, and having her husband there and these are wonderful people, and having her basically re victimized in court and bringing that picture to the mind of the jury. It really isn't what we're supposed to be about. The jury should be looking at evidence based on you know, mostly reason. You know,

what does this really show? And most of this trial was met so much about reason is what a horrible crime this was, and we think this guy did it, so therefore, please just sign him guilty and we'll put him away.

we have down here. And then I'm sure there were other people in the audience at the time too. And then of course, you know, his lawyers both believed so strongly in his innocence and bothered them for years as every's appeal failed. After he was I've taught one of these latters, and it just it severely affected him as years went on. It just bothered him immensely to know that he represented some guy who he was sure was innocent but was spending year after year after year in prison behind bars.

terms of Steven Avery's chances? And then ultimately you've you've already alluded to that he is ultimately sentenced. So tell us what happens in the trial wrap up and what is he sentenced to?

would have thought. The police had confiscated his shoes that night, and they're looking for sand that was on the beach, I suppose, and they wouldn't have seen any sand, so that wasn't didn't do much for him. And then they were out another later that next evening, the second day at deliberations. I believe it was when they walked Avery over from the jail. It was a sun was setting kind of four point thirty at night and winter time,

bitter cold. Here he and his family stood to hear the jury pronounce the word guilty of both counts attempted murder and first degree sexual Judge Hazelwood two or three months later, at the sentencing hearing, sentenced mister Avery to thirty six years excuse me, thirty two years prison in

prison in the Wisconsin State Prison. So he was shipped off to a Dodge Correctional Institute, and here in Wisconsin is the receiving institution for anyone who sent to prison from Milwaukee or any other part of the state.

called the judge immediately after the sentencing. And maybe you can tell us this little antidote, because again it shows the character of the family and the father.

at night and asked for his guns. Back, and the judge sent a letter back about probable cause and and Anne Avery's response was, well, I'm going to start making my own probable cause determinations if you don't get those guns back to me.

found it very, very unusual. I don't know how often this would happen, but a prosecutor trumpeting the case of a convicted person is usually done from the defense attorneys that are digging some up or from law schools where you know the innocent projects where people are looking into cold cases where people claim that they are innocent and they look at the merit of those cases. Tell us how you got involved with us and why.

of what happened is I became involved. I wasn't here obviously when the runfel conviction occurred, but I was here in two thousand and three when we got a call from the State Crime Laboratory in Wisconsin saying that the DNA evidence on this case, evidence from a HARE that was located on the victim's body Antenny's person on her back in nineteen eighty five. It's still preserved in evidence.

And the call was that the DNA came back not to Stephen Avery, but to a different sex offender, a known sex offender who was in prison, and his DNA was on the prison DNA bank, the sex offender bank, and it was a guy by the name of Gregory Allen. So here we are, eighteen years after Avery was first sentenced to prison, proof coming out in the form of DNA that it was a different guy. It was Gregory

Allen and Dan we started this show. The first question you asked me was that first scene I started with that crime before the crime to Penny Burnson two weeks before in July of nineteen eighty five, and that was Gregory Allen. Gregory Allen had been committing horrible crimes worse than Avery leading up to Penny Bernson's attack deck in

nineteen eighty five. And I don't know how much time we have and I don't want to be too conclusive, too much conclusion here ahead of time, but you know the police were really watching Gregory Allen, and the other police departments were convinced at the time it was Gregory Allen and that's Stephen Avery. But they didn't go after Gregory Allen. They went after Stephen Avery.

in the Avery file. And I looked and it was the same date of birth. And what it was is a criminal complaint where Gregory Allen, the real assailant here, had been charged with trying to commit the same type of offense, basically lunging at a woman who was walking her dog along the same stretch of beach on Lake Michigan.

So here it gets a little complicated. But here now I know that the prosecutor who prosecuted Avery, Dennis Vogel, had also prosecuted Gregory Allen, the real assailant, for a very similar crime that occurred almost exactly a year earlier, on the same beach. And the Allen complaint was in the Avery file. And I tell you my aren't just drapped. I knew something wasn't looking right here at that point, that that this just wasn't an accident. It was just way too coincidental.

It's very it's very strange, very strange tale. Now the thing is that we go ahead, well, I'm just going.

who is the one who wrongfully convicted Avery. He staff members of the DA's office actually came up to him during that case and said, look, we think you have the wrong guy. We think it's Gregory Allen. Because Allen was in court on other things and the DA lied. The DA said that, now I checked with Gregory Allen's probation officer, and the agent said that the approbation officer said he had an alibi that he was with He's sure that he was in Kiwani, a different city thirty

miles north all day. Well, the Attorney General's report, after we took it to the Attorney General's office, ended up making it clear that Gregory Allen wasn't even on probation. So it's pretty clearly intentional at that part that the district attorney, although he and the police probably I'm sure they thought it was Avery in the first couple of days,

they soon discovered that it wasn't Avery. But that whole feeling of well, he's a bad guy and we can't turn back now, so too bad, so sad, let's send him the prison. That's exactly what occurred here.

The appeals were based upon the state withholding or at least allegations that the state was withholding some of that evidence. But anyhow, those appeals failed, and then the Innofence Project finally got a hold of it, and the DNA was determined to be Allen. At that point, we did not feel comfortable just based on the DNA to just release mister Avery immediately, because you know, we didn't know all

this at the time. And it's funny how one piece of physical evidence, the last hair, it was a pubic hair to be tested in this whole five well eighteen years later, was one thing we had linking the real assailant, Gregory Allen. But before we did that, we wanted to look at the whole file to make sure that just because that one here was there, that that doesn't necessarily

mean that Avery wasn't somehow involved. So we looked through those boxes of evidence, poured through them all night actually, and it became pretty clear that no, Avery wasn't guilty. There was no other evidence other than a faulty identification of him under weird circumstances with the composite drawing, and we quickly did a stipulation with the Innocence Project and Avery was released from prison about three or four days later.

And Paul Back was a freelance photographer from this area of Wisconsin, Appleton, Wisconsin actually, and she is called out to the Avery Salvage Yard, sent there by her employer after Stephen Avery called and specifically asked for her to come out and take some pictures of a vehicle that he was putting up for sale and the Car Trader magazine. So she had been out there a few times before

to do the same thing. And then on this particular date happened to be Halloween actually of two thousand and three October thirty one, two thousand and three, she went out to the Avery salvage Yard in rural Manitoa County to take this picture of a car that Avery was selling.

they did a quick look. They did not see her vehicle. She rove a Suva rav four think is what it was. And they, you know, they of course look at the last place she's known to be and that was the avery seller Jayard. But at first they did not see her vehicle, so they loved you know, as time goes on, it's getting worse. The story is getting media attention throughout Wisconsin because this is a you know, anyone that goes missing, of course, it's a story. Teresa Halbach was. I don't

know how to say. She's a beautiful young woman, well known, well liked, and she was missing and days went by and she still wasn't found. So her family and friends, there was a group of volunteers that were searching for her. And eventually that group, about a week after she went missing, we're on the Avery sellar Jard property. They let him come on and they are the ones that found her suv garry and concealed with is a corner of the w yard.

scene I'll never forget. Police dogs as as it turned into night, kind of a nice fall day turned into a driving cold rain as we were searching for what everybody thought was likely to be Teresa's body. You know, we didn't We didn't have that. We had our vehicle. But that night the police dogs hit on a burning barrel basically, and in that burning barrel, Teresa's remains were were discovered, along with parts of her cell phone.

that was an accepted thing. And now with the Teresa hallback and her body being found on the property, we're hearing the same story. So again I won't give the rest of the book away because there's still a lot more to happen. It's such an ironic twist, I think, and I think if people can keep that in mind, they'll when they finish this book, they'll realize, my god, yeah, that's that's an ironic twist if there ever was one. So I want to thank you Michael for coming on

and weaving the story of this book Unreasonable Inferences. It's a great book, and I want to thank you very much for coming on and explaining it so very well for us.

You can't make this stuff up kind of a story.

great book, and it's very well deserved. If this book's a little bit different than a lot of books because of the perspective that you you have being a prosecutor, and then again later like the person that gets them out of prison, then later is going to an investigate a crime that again this guy's accused of again. So it's an amazing twist. It's one of the most incredible stories with just when you think the thing has ended now it's more to come. So thanks very much, Michael,

and have yourself a great evening. Great you too, day, Thank you very much. You've been listening to the program True Murder, the most shocking killers in true crime history, and the authors that have written about them. Thank you, good night,