Monday 10 December 2018

'If you're rich, you can get away with murder' - Making a Murderer lawyer Kathleen Zellner

Kathleen Zellner has freed more wrongly convicted men than any other lawyer in the US and the justice warrior's spellbinding presence dominates the second series of Netflix's 'Making a Murderer'

Quest for justice: attorney Kathleen Zellner speaks to the press
Quest for justice: attorney Kathleen Zellner speaks to the press
Steven Avery, the subject of Making a Murderer

Chris Harvey

'There's nothing as satisfying as doing this," says Kathleen Zellner. "Once you've experienced the success of saving someone's life, you can't really top that." The Chicago attorney whose spellbinding presence dominates the second series of Netflix's true-crime documentary Making a Murderer first saved an innocent man from death row in 1994. Since then, she has freed more wrongly convicted men than any other lawyer in America (20 in total).

Zellner's goal in the series is to overturn the verdict against salvage yard worker Steven Avery - sentenced to life without parole in Wisconsin in 2005 for the murder of 25-year-old Teresa Halbach. Sensitivities do not come into her attempts to dismantle the story told to the jury.

A weighted dummy with hair dripping in blood is flung into the boot of a car to try to reproduce the spatter of the victim's blood; bullets are fired through the shoulder blades of a cow to imitate them passing through her skull. "You've got to be an obsessive kind of personality to do this," the 61-year-old says.

Zellner is visually arresting, dressed in suits and snakeskin prints, her face a controlled mask, her precise arguments framed in a side of the mouth drawl; you notice the eloquence of her long fingers, with their long, painted nails, as she points out another hole in the prosecution's case - "it was full of holes," she tells me.

Steven Avery, the subject of Making a Murderer
Steven Avery, the subject of Making a Murderer

Zellner is aware that since the second series, following the case of Avery and his nephew Brendan Dassey, also convicted of photographer Halbach's murder on the basis of a controversial confession, her methods are being scrutinised by millions. "I've tried to block that as much as I can," she says.

Some have suggested she was drawn to take part in the high-profile series for the fame. "When people talk about that I wanna laugh," she says. "I was already well known (the Joseph Burrows case in 1994, where a female killer finally confessed to the murder, had international news coverage) and I'd already accomplished financial success.

"I've turned down book deals, I've turned down TV - Dick Wolf (the creator of Law & Order) approached me about doing a series in the mid-90s. If I were interested in all of that, I wouldn't be sitting here doing these cases pro bono."

She funds her work on wrongful convictions through other work at her practice and has spent up to $1m of her own money to win a case, as she did to free Ryan Ferguson in 2013. He had spent nearly 10 years in prison for the murder of a sports editor, based on two false testimonies.

She escapes from her days dwelling in darkness and death to a five-acre wooded country estate where she lives with her husband Robert, a commodities trader, and their dogs. Her daughter Anne is a lawyer in Nevada.

Zellner was born in Texas, but grew up in Oklahoma. She got her empathy from her mother, a chemist who later went into nursing. Her father discovered oil fields all over the world. "He was a very incisive thinker - I got my sense of adventure from him but also the ability to deconstruct arguments, look at evidence."

Zellner agreed to take on Avery's case in 2016, after Making a Murderer was released. Avery had been writing to her since 2012, after his fiancé Sandy Greenman had seen her on TV.

But Zellner's office had rejected him because of the forensic evidence tying him to the murder. "We have so many letters, and I've got my clerks doing initial reviews," Zellner says. "We have a criterion to get to the people that are innocent, and he was the outlier, because you learn that his blood is in her car, his DNA is on her key, her DNA is on a bullet in his garage, her bones are in his burn pit. There was so much."

She was finally persuaded to watch the series by a client she had exonerated. "I realised there was something really wrong with the forensic evidence," she recalls.

Zellner also had a conversation with the former FBI criminal profiling expert John Douglas, who wrote the book Mindhunter, on which the Netflix drama of the same name is based. Douglas told her that based on Avery's demeanour, he did not think he presented like a violent person.

She says she thinks there was a "tremendous push-back from the state" after the first series. "They thought they'd been embarrassed on a worldwide stage."

In the series, her 1,272-page motion for a retrial was denied. She is now preparing to file a brief at the appellate court in December. She may have a better chance with this since the midterm elections earlier this month changed Wisconsin's political landscape. Out went Governor Scott Walker, losing to Democrat Scott Evers, and out went Attorney General Brad Schimel to be replaced by Democrat Josh Kaul. "I have always believed that Schimel had never spent any time on the case files of Steven Avery and Brendan, he knew nothing about the facts," Zellner says. Has she been on the phone to the incomers? "I have not and that wouldn't be my approach," she says, but adds: "I think it's a good sign. The new attorney general has a very impressive background, he has a Stanford law degree. His mother was the attorney general, but he is not tied to the kind of old boys' club in Wisconsin in the legal community. That's extremely important."

She stresses, however, that if people think she may approach Evers and Kaul seeking a pardon for Avery, "that will never happen - you don't seek pardons for clients that are innocent".

Making a Murderer may even have influenced the election: Zellner says she had messages from Wisconsin residents who said they were going to vote against Walker and Schimel after watching the documentary.

She notes that the political dimension of the legal system in the US can get in the way of justice. Partisan politics are perhaps at their starkest in the make-up of the Supreme Court, although Zellner says in Avery's case, "the chances that you are going to end up at the US Supreme Court are almost zero. As you can see, they had no interest in Brendan Dassey's case."

Dassey's legal team asked the Supreme Court to hear the case in February, after an appeal reversed an earlier decision to free him on the basis that his confession was coerced.

"I'm very empathetic with his lawyers," she says, "because I know [that decision] had to be devastating to them." Zellner says the situation the vulnerable Dassey was thrown into, interviewed alone as a 16-year-old with a low IQ, was "a travesty".

She says that there is "no question" that the American justice system is set up to protect the strong over the weak.

"A guilty person who is wealthy is much more likely to get away with a murder than someone who is poor. They just have enormous resources. I would say without hesitation that the OJ Simpson case is the example of that."

The biggest flaw in the system, however, she says is that prosecutors enjoy absolute immunity, "so they can literally violate the constitution, suborn perjury, hide evidence and they're never gonna be held accountable… no one should be above the law.

"The way to stop this behaviour of stealing people's lives away from them is accountability, and the punishment has to be severe.

"So far in the US, there's just been one prosecutor, who became a judge (Ken Anderson in the Michael Morton exoneration case), who went to jail for framing somebody. But that's got to happen to make it stop."

Since the second series of Making a Murderer was released last month, viewers have been contacting her. "We've gotten a tip in the last 24 hours that we think is really significant. It has to do with Teresa Halbach's car - we spent most of yesterday following up on it."

A couple of potential witnesses have also claimed to have information on alternative suspects - "people are starting to talk".

She regularly takes to Twitter to discuss developments and respond to #AskZellner questions, including one recently from pop star Lily Allen. Ricky Gervais and Avril Lavigne are also following the case, she says.

I ask one of my own. Does she think it's possible that any of her alternative suspects - who include a nephew of Avery's, and Halbach's ex-boyfriend - would have the intelligence to take a pipette of blood from the sink in Avery's trailer, where he claims he had bled from a cut on his thumb, and plant it in Halbach's car.

"Yes, I do," Zellner says, "because I know that's happened on other cases. The average person has so much more knowledge about DNA or blood, and this was just a simple thing where they wiped up some blood - you literally could just take a wet sponge and wipe it out - then you just drip it."

Does she think the high-profile nature of the show harmed Avery's chances? "I think that it's created an additional risk, but I still believe that the system works." And if she fails? "Nothing can take away from me what I've already accomplished… I am funding this as a private individual. Who else is doing that in America?"

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