A Legal Miracle

“**A Legal Miracle**” is the third episode of the second season of *Making a Murderer* and the 13th episode overall. It was written and directed by Moira Demos and Laura Ricciardi. The title of the episode is a reference to what is required to have someone who is incarcerated released.

## Synopsis

Kathleen's forensic experts review the evidence found in Steven’s burn pit. A 1996 statute limits Brendan's chances of success in federal court.

## Recap

The episode begins with Kathleen Zellner explaining a downside of her work: causing pain to the victim's family. The family has accepted the verdict, believe the person or persons convicted are the actual perpetrators and have been held accountable, and since have tried to move on. Then, years later, Zellner comes along and, as she puts it,

"*they start reading these things y'know like maybe it isn't so certain and then... and so they can focus a lot of their animosity, ehm, towards me.*"
Is Zellner genuine here though? Or is this her way of saying she has a strong case and that even the victim's family is starting to doubt the conviction of Steven Avery? (though it doesn't seem like they actually do have doubts).

Chris Nerat, former friend and classmate of Teresa Halbach, points out how actively Zellner is working on the case and he, sort of sceptically, adds that "*[Zellner]* may *think that he is honestly innocent*". Why Nerat may not be convinced of Zellner's belief in Avery's innocence we are not told, unfortunately.

    Perhaps it's because of the timing? She didn't pick up the case until *Making a Murderer* became a huge hit. Many people all over the world had become convinced Avery was set-up by the cops. It looked so obvious in the documentary that he was. And on top of that, Avery's, sort of lesser known, local advocates Jerome Buting and Dean Strang were viewed as heroes due to their portrayal in *Making a Murderer*and it probably wasn't bad for their law-firms either.

Nerat doubts Zellner would have taken Avery's case if it hadn't become such a high profile case due to *Making a Murderer* and he could very well be right. Remember in episode 1 of this season we learn that Zellner was asked to take the case twice before the release of the docu-series, but didn't. Zellner's Twitter-activity is also mentioned and the series shows how her tweets about the Avery case actually make it to the news and thus get spread to the public.

Nerat wonders "*if she is just trying to find a loophole in the system then... and Steven may still have done it, but she thinks he- that she can get him out because of a technicality or something like that - I don't think that's right obviously*".

   　The series then quickly switches back to Zellner: "*I don't think anyone has to worry about a technicality*", she responds. She adds: "*if [Steven]'s guilty, I'll fail*". Well, so far she hasn't gotten very far with this case.

### More on Brendan

For the first time in the series we meet Brendan Dassey’s father Peter. He is about to meet with his ex-wife and Brendan's mother Barb Janda and her husband Scott Tadych and drive with them to meet Brendan in prison. The three of them talk about how difficult it is to leave Brendan behind after a visit and how his brothers, especially Bryan and Bobby, struggle with Brendan's incarceration. I'll skip through most of these scenes from now on since they're, imo, just filler.

This episode also dives a bit deeper into the politics and constitutional aspect of habeas corpus involving Brendan's case which explains some insight into AEDPA (the Antiterrorism and Effective Death Penalty Act), which was signed by Congress in 1996.

The episode explains that the act was put into play following the Oklahoma City bombing to ensure that those given the death penalty are brought to justice quickly. But this act isn't restricted to terrorist acts, in fact, it applies to everyone, which is why it proved difficult in Brendan's case.

Laura Nirider explains how difficult it is to get someone released who has been convicted. Does she come across as if she feels that's unfair? It felt like she did, to me, but I would disagree.

Brendan's former attorney Len Kachinsky says Brendan's case is practically over. Well, he's probably right. And if Brendan's case is over, then what about Steven's? Brendan's team had done a much better job than Kathleen Zellner has done so far and have climbed much higher up the legal ladder, whereas Zellner has been dwelling at the bottom of the ladder in the Circuit Court level throughout most of her representation of Steve Avery.

Anyway, more on Brendan... we get to see a glimpse of Teresa's younger brother Mike Halbach's speech on August 2nd, 2007, during Brendan Dassey's sentencing hearing. He says:

"*On October thirty-thirst, 2005, Brendan Dassey had the opportunity to choose a life-long title for himself. Rapist and murderer or hero. It's such an easy decision that the fact that any person, young or old, who can choose the former has to be held accountable. He's consistently refused plea deals which would have made our lives easier amidst this strategy and to his benefit would have made his sentence shorter for doing so. Judge Fox I will ask you to send this rapist and murderer to prison for the rest of his life without ever becoming eligible for parole. Thank you.*"
Brendan's mother Barb is shown next:

"*My name is Barbara Tadych and all I gotta say is my son did not do this. He was more or less coarsed in saying what he said and I believe that he should be maybe get a little bit for saying a story but I don't think he oughta deserve life.*"
But Judge Fox decided to send Dassey to a life in prison for intentional homicide. He is eligible for parole on November 1st, 2048.

    Zellner also has something to say, with that typical sceptical or scynical smile on her face. She's surprised the State managed to get Dassey convicted. She says she can't imagine how people can put such a case/conviction together, which she described as "fascinating". She adds she doesn't like to blame the jury, because she does believe in the jury system. "It really works", she says, "if they got the evidence they don't make mistakes like this", implying the State controlled the outcome of the trial.

### Back to Avery's case: the burn pit

Time for some more evidence examination. Next up are the burn pit, burned bones and other remains of the bonfire. The expert that Zellner is consulting on this matter is John DeHaan, a well-known name in forensic arson science. In fact, Zellner stated she consulted several forensic scientists and they all recommended John DeHaan.

In this scene Zellner is sitting on one side of a table, while John DeHaan and his colleague Steven Symes are on the other side of the table. On the table and behind Zellner are papers and a small selection of photos of the burn pit. Zellner obviously goes in with one goal: to get this man to say it wasn't possible for Avery to have burned Halbach to such a degree.

DeHaan notes that a lot of fuel is needed if you want to burn a body to the degree in which Halbach's body was burned. A little bit of fuel will just scorch the skin before the flames go out. A body itself is not a combustible. So, to completely burn away a body a continuous supply of fuel is needed. Okay, interesting information so far, however I don't think the State ever claimed that a continuous supply of fuel was used.

Zellner points out that the State presented evidence that a couple of tires were used. DeHaan responds that two tires are not enough to keep a fire burning long enough to consume a body. A salvage yard full of tires, and we are to believe Avery only used two?

DeHaan's colleague Dr. Symes explains how the burn pit is flat and that a fire would not be protected from the sides to keep the heat in place. He also notes that if something is burned in that pit we should see some leftovers of that.

    Another expert and again I just wasn't really convinced. I've heard how good an arson scientist DeHaan is and I've seen him in other documentaries as well (one of them being *The Confession Tapes*, also on Netflix), but in those documentaries he delivered a much more compelling analysis than he did here. This one gave me the impression he was assuming the burn pit area was *not altered* after the bonfire and before it was discovered by investigators about a week later (hence his analysis on the "two" tires). Obviously, if Avery burned her there, he wouldn't leave everything behind. We know Brendan Dassey was spotted removing tire remnants from Avery's burn pit. The scene was altered before the police photos were taken. Of course it was.

Following this scene Zellner tells the viewer that DeHaan said it was impossible for Halbach's body to have been cremated in that burn pit. She adds that DeHaan believes that no body had ever been burned there because of the lack of ash and the lack of dark residue from the body. Why would there by *any* residue if the body had been almost *completely consumed*?

Zellner points out to the DeHaan that the Avery's actually have experience with burning deer carcasses (to hide them). So burning a body is not unfamiliar territory for Steven, apparently.

After this scene with DeHaan and Symes there's more filler with Steven, Steven's hopes of being free, his girlfriend Sandra Greenman, Ma Avery being ill, etcetera. Not interesting.

### Zellner's law clerks

    Next we see Zellner and some of her law clerks. One of them, a certain Kira, was apparently tasked to look into the various burn barrels that were found on the Avery property. Kira explains she learned that on the 6th of November the barrels behind the Janda/Dassey residence were collected by the cops. One of them contained some of Halbach's remains. According to Kira there is something fishy about this though, because the barrels were actually searched through on the 7th and 8th of November and apparently, according to Kira, nothing of note was found. Then, on the 12th, the barrels get searched again, according to Kira for an unknown reason, and bones are suddenly found.

That did sound fishy to me when I watched this season for the first time. This was just a clerk's claim though.. I was more interested in what Zellner actually had to say about it, so I looked up her 2017 post-conviction motion and skimmed through it... but guess what? Nothing on this burn barrel mystery. Apparently it wasn't as mysterious as it sounds on *Making a Murderer*?

### Dean, Jerry and Brendan

The episode highlights an interview Avery did with a magazine in which he slams his former attorneys Dean Strang and Jerome Buting, saying they could've done what Zellner has done for him, not that Zellner has had any success with what she has been doing so far though. Now, Strang and Buting get their chance to respond. Buting says "*I know in my heart we worked as hard as we possibly could*". Strang comments about Zellner's tactical "ineffective counsel" claim: "*if you're picking up a case this late [...] Steven Avery's lawyer's ought to be looking at ineffective assistance of counsel*".

And he's right. No options to waste for Zellner. The fact that Zellner is looking into them, doesn't mean they *were* ineffective. It's just another strategic decision to explore that aspect of her clients case, hoping to find something to work with.

Near the end of the episode we hear that a Federal Judge has overturned the conviction of Brendan Dassey. Wisconsin Attorney General Brad Schimel announces the intention to look into how to respond to the Federal Judge's overturning.

## Appearances

### Notable people

* Kathleen Zellner
* Steven Avery
* Brendan Dassey
* Steve Drizin
* Laura Nirider

### Evidence discussed

* Steven Avery’s burn pit
* Burned remains
* Brendan Dassey’s confession