On July 29, 1985, 36-year-old Penny Ann Beerntsen, co-owner of a small business and a part-time physical fitness instructor, checked her watch as she jogged along a stretch of Lake Michigan shoreline near Two Rivers, Wisconsin. The time was 3:50 p.m. and she was planning on meeting 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 unconscious.
After Beerntsen regained consciousness, she crawled to the beach where a couple wrapped her in a towel and walked with her until she found her husband, who had already notified by police.
Based on a physical description of her attacker, police compiled a photo array of nine men. Beerntsen selected the photograph of 23-year-old Steven Avery. Beerntsen then viewed a live lineup and again selected Avery, although he was the only person who was in both the photographic and live lineups. The man who ultimately would be identified as her attacker, Gregory Allen, was not in either lineup.
Avery was arrested the following day at his home in Two Rivers.
At trial in Manitowoc County, Beerntsen identified Avery as her attacker. A state forensic serologist testified that a hair recovered from a shirt of Avery’s was consistent with Beerntsen’s hair.
Avery presented 16 alibi witnesses, including the clerk of a store in Green Bay, Wisconsin, who recalled Avery, accompanied by his wife and five children, buying a gallon of paint. A checkout tape put the purchase at 5:13 p.m.
Beerntsen put the attack at 3:50 p.m. and estimated it lasted 15 minutes, which meant that 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.—a time span of just over an hour.
A police officer told the jury that he managed to make this trip in 57 minutes—although he did not account for loading the family into the car and he exceeded the speed limit by an average of 10 miles an hour.
The jury deliberated for four hours over two days and convicted Avery on December 14, 1985. 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 Beerntsen’s fingernails contained the DNA of an unknown person. The tests were unable to eliminate Avery, however, and a motion for a new trial was denied.
In April of 2002, attorneys for the Wisconsin Innocence Project at the University of Wisconsin obtained a court order for DNA testing of 13 pubic hairs recovered from Beerntsen at the time of the crime.
On September 10, 2003, the Wisconsin Crime Laboratory reported that the hair belonged to Gregory Allen. The link was made by submitting the DNA profile from the hair—which was not Avery’s—to the FBI DNA database. The profile matched to 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 Beerntsen.
At the time Beerntsen was attacked, Allen, 32, was a suspect in several prowling cases and an attempted breaking and entering following a window-peeping incident. Police had authorized surveillance of Allen 12 days prior to the attack on Beerntsen, but on the day of the attack, the surveillance was limited to one check on Allen’s location. Allen bore a striking resemblance to Avery.
On September 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 Avery was released.
On March 9, 2005, prompted by Beerntsen and Avery, the Wisconsin Department of Justice adopted a model eyewitness identification protocol.
Avery received the maximum state compensation of $25,000. In 2004, he filed a federal lawsuit seeking $36 million from Manitowoc County.
On October 31, 2005, 25-year-old Teresa Halbach, a free-lance photographer, came to Avery’s salvage yard in Mishicot, Wisconsin, to photograph a vehicle there. She was attacked and murdered. Days after her disappearance, her vehicle was found in the salvage lot under branches, pieces of wood and car parts.
Investigators found her bone fragments in a pit, Avery’s and her blood in her vehicle and two guns hanging above Avery's bed. A rifle was linked to a bullet found in Avery's garage with Halbach’s DNA on it.
Prior to his trial, Avery settled his lawsuit for $400,000. Legislative efforts to enact a bill that would have provided $425,000 in state compensation were abaondoned.
In 2007, Avery and his nephew, Brendan Dassey, were convicted in separate trials and both were sentenced to life in prison.
– Maurice Possley