Steven Avery

The Crime

On July 29, 1985, 36-year-old Penny Ann Beerntsen, co-owner of a small business and a part-time physical fitness instructor, was jogging along a stretch of Lake Michigan shoreline near Two Rivers, Wisconsin when she checked her watch. 

The time was 3:50 p.m. and she planned to meet her husband farther up the beach at 4 p.m.  

Seconds later, a man grabbed her from behind, dragged her into a wooded area, raped her, and choked her until she lost consciousness. 

After Ms. Beerntsen regained consciousness, she crawled to the beach and sought help. A couple wrapped her in a towel and walked with her until she found her husband, who had already notified police.

The Investigation

Ms. Beernsten was taken to the hospital for treatment and a sexual assault kit was taken. In an interview there, she told Deputy Sheriff Judith Dvorak that her attacker was a white man with a stocky build, long sandy hair, a brown scruffy beard, and brown eyes. Sheriff Thomas Kocourek believed the description resembled that of 26-year-old Steven Avery, who had been accused of trying to abduct the wife of a sheriff’s deputy six months earlier. 

The police compiled a photo array of nine men. The array included Mr. Avery, but not Gregory Allen whose description also resembled that given by Ms. Beernsten. In the 12 days prior to the attack, Mr. Allen had been under surveillance by the Manitowoc police department as a suspect in a series of sex-related crimes, including an indecent exposure and apparent attempted rape along the same stretch of beach where Ms. Beernsten had been attacked. Ms. Beernsten identified Mr. Avery in the photographic lineup.

Later that day, Ms. Beerntsen viewed a live lineup and again selected Mr. Avery, although he was the only person who was in both the photographic and live lineups. This procedure is considered suggestive because a person can subconsciously convert the memory of seeing a person in the first lineup into a memory of that person being the perpetrator.

Mr. Avery was arrested the following day at his home in Two Rivers.

The Trial

In December 1985, Mr. Avery went to trial in Manitowoc County Circuit Court. Ms. Beerntsen identified him as her attacker. A state forensic serologist, Sherry Culhane, testified that a hair recovered from a shirt belonging to Mr. Avery was “similar” and “consistent” with Ms. Beerntsen’s hair. Ms. Culhane conceded that the hairs of many people are consistent with one another, that she could not give a probability that the hairs were from the same source, and that all she could say was “that it’s not impossible” the hairs were from the same source.

Mr. Avery presented 16 alibi witnesses, including the clerk of a store in Green Bay, Wisconsin, who recalled Mr. Avery, accompanied by his wife and five children, buying a gallon of paint. A checkout tape put the purchase at 5:13 p.m.

Ms. Beerntsen said the attack occurred at 3:50 p.m. because she had just checked her watch. She estimated that it lasted 15 minutes, which meant that Mr. Avery would have had to leave the scene of the attack, walk a mile to the nearest parking area, drive home, load his family into the car, and drive 45 miles to Green Bay to purchase the paint by 5:13 p.m., all in just over an hour.

A police officer told the jury that he managed to make the same trip in 57 minutes, although he did not account for loading the family into the car and had exceeded the speed limit by an average of 10 miles an hour.

On Dec. 14, 1985, after four hours of deliberation over two days, the jury convicted Mr. Avery of attempted murder, first-degree sexual assault, and false imprisonment. He was sentenced to 32 years in prison.

After losing his appeals, a petition for DNA testing was granted in 1995 and showed that scrapings taken of Ms. Beerntsen’s fingernails contained the DNA of an unknown person. The tests were unable to eliminate Mr. Avery, however, and a motion for a new trial was denied.

The Exoneration

In April 2002, attorneys for the Wisconsin Innocence Project at the University of Wisconsin-Madison obtained a court order for DNA testing of 13 pubic hairs recovered from Ms. Beerntsen at the time of the crime.

On Sept. 10, 2003, the Wisconsin Crime Laboratory reported that the hair belonged to Mr. Allen. The link was made by submitting the DNA profile from the hair, which was not Mr. Avery’s, to the FBI Combined DNA Index System (CODIS). The profile was matched to Mr. Allen, whose profile was in the database because by then he was serving a 60-year prison term for a sexual assault in Green Bay that occurred after the attack on Ms. Beerntsen.

On Sept. 11, 2003, a joint motion to dismiss the charges brought by the Manitowoc District Attorney’s Office and the Wisconsin Innocence Project was granted and Mr. Avery was released.

On March 9, 2005, prompted by Ms. Beerntsen and Mr. Avery, the Wisconsin Department of Justice adopted a model eyewitness identification protocol.

Mr. Avery received the maximum state compensation of $25,000. In 2004, he filed a federal lawsuit seeking $36 million from Manitowoc County and settled before trial for $400,000.