Why the Midterms Were Good News For Steven Avery and Brendan Dassey

The midterm election results are in, and in addition to winning control of the House of Representatives, Democratic candidates managed to unseat Republican incumbents in other key positions — including “the top two elected officials most determined to keep [Steven Avery] and [Brendan Dassey] convicted.”

That’s how defense attorney Jerry Buting described Wisconsin’s now former Governor Scott Walker and Attorney General Brad Schimel, who both lost their respective bids for reelection to their democratic challengers. Walker was defeated by Tony Evers, while Schimel will be replaced by Josh Kaul; in addition to the many potential policy changes that could accompany the shift in power, Evers and Kaul also offer the state’s two most high-profile prisoners fresh hope of overturning their convictions for the 2005 murder of Teresa Halbach.

Avery and Dassey were tried separately for Halbach’s murder, and their respective appeals are at very different stages — Avery, who is represented by attorney Kathleen Zellner, is at the beginning of his first attempt at appealing his conviction and life sentence, while Dassey exhausted his appeal chances earlier this year.

Making a Murderer’s second season, which was released by Netflix last month, documented the Dassey family’s joy when Federal District Court Judge William Duffin ruled that the then-16 year old’s confession in 2006 was coerced, overturned his conviction and ordered his immediate release from prison. That never happened, because then-AG Schimel not only appealed Duffin’s decision to vacate the conviction, but his office successfully convinced the Court of Appeals for the 7th Circuit to block Dassey’s release in the interim. Dassey’s attorneys, Laura Nirider and Steven Drizin, achieved a second victory when the 7th Circuit’s three judge panel denied the state’s appeal, but Schimel’s office only dug in its heels, and it was all downhill from there. The state was granted an en banc hearing — meaning all the judges of the court were present — which rendered the panel’s decision moot, the entire 7th Circuit ultimately ruled against him and reinstated his conviction. Dassey’s last shot was to convince the Supreme Court of the United States to take his case under consideration, but they declined.

Supreme Court’s refusal to hear Dassey’s case marked the end of the road for his federal appeals. The most damning piece of evidence against him, his confession — really, the only evidence the prosecution ever had — has ultimately been deemed admissible and he won’t be able to seek relief by arguing otherwise again. His best hope of getting relief through the court system now really depends on Zellner and her work on the Avery case, specifically the new and withheld evidence she says she has uncovered.

Avery clearly has an opportunity to benefit from a changing of the guard in the AG’s Office; Schimel doubled and tripled down on the validity of Dassey’s conviction and won, and thus far, his office’s response to Avery’s appeal was similarly resistant to reconsidering the evidence in the case. At the very least, how Attorney General-elect Kaul will choose to wield his power won’t be quite so predictable.

“The Attorney General can tell the Department of Justice whether to fight a particular case or not, or whether to concede in certain areas or not,” Avery’s trial attorney, Jerry Buting, tells Rolling Stone. “So for instance, the allegations of deliberately withheld exculpatory evidence by the prosecution in the Avery case — [which] I think it would apply to [Dassey] as well — if the new Attorney General decided that the evidence seems to support that kind of a claim, he could direct his lieutenants, so to speak, enter into some sort of agreement that, yeah, this is a violation, now what’s the remedy? Kaul can order that a transparent review be done of their files and the special prosecutor’s files, as well as a reinvestigation of the case.”

Kaul does have one thing tying him to the Avery and Dassey case — his mother, the late Peg Lautenschlager, was the Attorney General of Wisconsin when Avery was exonerated in his first wrongful conviction in 2003, and a few years later, members of her office assisted in the investigation and prosecution of both Avery and Dassey for Halbach’s murder.

“I’m sure she was a very influential person in his life,” Buting says of Kaul and Lautenschlager “but that doesn’t mean that he isn’t his own person. I’m sure that the Attorney General-elect will listen to anybody who wants to present their side to him. Whether it will result in exoneration or release from prison, that’s that’s a whole different question. … it’s too early to handicap what could happen.”

One thing is certain — the change in leadership in the Governor’s office is a big deal for any prisoner who applies for clemency in the form of a pardon or commuted sentence. That’s something the soon-to-be former Governor made clear he would never consider — in the Avery/Dassey cases or any other.

“To me, the only people who are seeking pardons are people who have been guilty of a crime and I have a hard time undermining the actions of a jury and of a court,” Walker told the Associated Press in 2013.

Walker was supposed to make appointments to a state advisory board to review pardons, but he eschewed the process altogether, and during his nearly eight years in office, he has not considered a single pardon, despite receiving thousands of applications.

“The only governor in our history to do that,” Buting notes.

While Governor-elect Evers hasn’t publicly expressed any opinion on the Avery/Dassey case, he’s certainly more of a progressive on criminal justice issues than Walker, including the need to reduce over-incarceration. While Avery and Dassey’s attorneys would have to apply to be considered, the fact that Evers isn’t opposed to granting clemency is good news.

Time will tell what kind of impact Kaul and Ever may have on Avery and Dassey in the months and years to come, but Kathleen Zellner, Avery’s current attorney, tells Rolling Stone she is “guardedly optimistic.”

“It would be a refreshing change if the newly elected governor and attorney general did not make pronouncements about the two cases for political gain, as their predecessors did, without taking the time to evaluate all of the evidence or lack thereof.”