A Dark Cloud Hangs Over Manitowoc

Penny Beernsten

Kathleen Zellner’s most recent tweet,

Fassbender first suggested to BD that SA improperly touched.Allows BD to justify false confession-frame & defame#Factbender
got me thinking.  As we all have our opinions about who murdered Teresa Halbach, and how this was carried out, it’s easy to forget that Steven Avery and Brendan Dassey were originally charged with rape in 2005.  Strang and Buting managed to get those charges dropped for Avery, but Dassey’s legal team had worse luck, and they weren’t able to have any charges dismissed for their client.
From the perspective of those prosecuting Avery, ceding the rape charge to the defense mattered little overall since Avery was sentenced to life without the possibility of parole anyway. Nonetheless, it is the widely held perception of Steven Avery’s deviancy in Manitowoc, Wisconsin, stretching back several decades–comprising not only inappropriate and illegal sexual acts, but also documented cruelty to at least one animal– which really was the backdrop of the criminal case against Steven Avery in 2005.
In one of Making A Murderer’s more memorable scenes, Kenny Petersen, Steven Avery’s original arresting officers for the sexual assault of Penny Bernsteen in 1985, had the following exchange with Avery’s attorney, Dean Strang, during his trial in 2006:

Strang: In 1985, you were requested by the then-sheriff of Manitowoc County, Tom Kocourek to arrest Mr. Avery on a charge of attempted murder.

Peterson: Yes.

Strang: And that involved a violent assault on a beach here in Manitowoc County?

Peterson: Correct.

Strang: Later, the claim that Mr. Avery had made that he was innocent of those crimes proved to be true.

Petersen: Possibly.

Strang: I’m sorry?

Peterson: I would have doubt.

Strang: You have doubts about that?

Peterson: Yes.

Those doubts undoubtedly remain to this day given the remarks Mr. Petersen made more recently to an audience of millions on the popular Dr. Phil Show when asked by Dr. Phil whether he has any guilt for arresting an innocent man. Without a moments hesitation he replies, “No, none whatsoever”.

You’d have to be a pretty rotten bastard to not feel bad about that, even if you were just following orders, UNLESS you inwardly felt all along that the man you arrested so long ago was, in fact, guilty.

No so long ago, a reader recommended a piece by Lorrie Moore which ran in the February 25the edition of The New York Review of Books which very efficiently encapsulates my own impressions of the things I heard and the things I witnessed in Manitowoc:


A long-form documentary in ten parts, aired on Netflix, the ambitious series looks at social class, community consensus and conformity, the limits of trials by jury, and the agonizing stupidities of a legal system descending on more or less undefended individuals (the poor)…


The story one does see clearly here is really a story of small-town malice. The label “white trash,” not only dehumanizing but classist and racist—the term presumes trash is not ordinarily white—is never heard in this documentary. Perhaps the phrase is too southern in its origins. But it is everywhere implied. The Averys are referred to repeatedly by others in their community as “those people” and those “kind of people.” “You did not choose your parents,” says an interrogator, trying to ply answers out of sixteen-year-old Brendan, though his parents are irrelevant to the examination and are not being criminally accused of anything.

Yet the entire family is socially accused: outsiders, troublemakers, feisty, and a little dim. What one hears amid the chorus of accusers is the malice of the village. Village malice toward its own fringes has been dramatized powerfully in literary and film narrative—from Shirley Jackson’s “The Lottery” to Arthur Miller’s The Crucible to the Michael Haneke film The White Ribbon to Suzanne Collins’s The Hunger Games. Trimming the raggedy edges is how a village stays a village, how it remains itself. Contemporary shunning and cleansing may take new and different forms but they always retain the same heartlessness, the unacknowledged violence, the vaguely genocidal thinking. An investigator ostensibly on Brendan’s defense team speaks openly of his distaste for the Avery family tree and says, “Someone said to me we need to end the gene pool here.”

Given the insular nature of a small town, when a citizen as prominent as Ken Petersen publicly expresses under oath that he has doubts about Steven Avery’s innocence for the sexual assault of Penny Bernsteen in 1985, he is expressing the point of view of an informal consensus reached by far more people than just himself.  We can infer that his view was that of the law enforcement community in Manitowoc along with, in all likelihood, the prevailing view of prominent members of that community from whom they seek votes come election time. (The sheriff is an elected official in Manitowoc, just like in most places in the United States.)

This brings me back to the encounter at Starbucks, only part of which is shown in the video heading this article.  Unlike almost everywhere else in the world, the townspeople of Manitowoc seem to overwhelmingly believe in Avery’s guilt, and their sentiments on this score are colored with what seems like malice, resentment, and denial.  My experience with those in town who would speak to me (as you can see in the video) was that most preferred to let the jury’s official ruling of guilt serve as a proxy for a thoroughly reasoned opinion.


We might forgive many of the townsfolk for their stance on the matter of Steven Avery and Brendan Dassey’s guilt or innocence once we fully understand how strong some of the deeper currents run beneath the placid surface of this small town.  Perhaps an outsider, especially one from a larger city, cannot fully comprehend that to state a strong opinion on Steven Avery’s guilt or innocence is tantamount to abstracting the character of the town itself.  A citizen is not at liberty to  call in to question Steven Avery’s innocence without calling into question the nature of the town itself.  To state that an outsider such as Avery is guilty is to obliquely express that you believe in the righteousness of members of your own community, and that it is largely comprised of God-fearing, honorable men and women.

The part of my encounter that wasn’t show on video was of an elderly lady, about the age the Penny Bernsteen would now be, who openly expressed that she believed Steven Avery was guilty of the sexual assault of Penny Bernsteen in 1985.  She went on to further state that she knew Penny Bernsteen, and that Penny, despite her public pronouncements, secretly felt the same way.

Ironically, there was nothing about the elderly woman that gave me cause to doubt what she had said.  She was well dressed and well groomed, spoke in a forthright manner, and even had an openness and kindness of expression, a grandmotherly sweetness, shall we say.  What she related to me was said under the shouts of her daughter who had been stridently urging her not to speak to me, as though she might inadvertently reveal the dark face of small town prejudice.  But the old lady was undaunted, and further related that the only evidence which tied Gregory Allen to the sexual assault of Penny Bernsteen was a single pubic hair combed from a beach towel.  “What in the world does that signify?” she asked, and in a foreshadowing of the the nature of the evidence found in Teresa Halbach’s murder, she also stated, “that beach towel could have picked up a hair that had already been there.”

Because Penny Bernsteen has been unwavering in publicly stated that it was her mistaking Steven Avery for Gregory Allen that caused Steven Avery to be sent to prison, we are obliged to believe her.  And even if she does privately express a contrary view, even this must be looked at through a certain lens given the possible consequences, even for a woman in the town as prominent as she, for dissenting from the majority.

At least I try to see it this way even though Penny Bernsteen is now on record for just about coming out and saying she believes Steven Avery is guilty of murdering Teresa Halbach, and this view apparently predated the jury’s official verdict. This is what Kathryn Schultz wrote in The New Yorker as part of a de facto review of Making A Murderer (Emily Nussbaum is the New Yorker staff writer who normally reviews television shows)

Given her history, Beerntsen does not need any convincing that a criminal prosecution can go catastrophically awry. But when Ricciardi and Demos approached her about participating in “Making a Murderer” she declined, chiefly because, while her own experience with the criminal-justice system had led her to be wary of certitude, the filmmakers struck her as having already made up their minds. “It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

Penny seems not to comprehend the irony that she’s comes off as being as sure of the filmmaker’s motives as she did of Avery’s guilt in 1985.


And if you read an interview Penny gave to Christine Thomas of The Marshall Project on 1/05/2016, she states repeatedly how offended she was, after Avery’s conviction for the 1985 sexual assault, that he had the audacity to wage a legal battle to prove his innocence.  Throughout the years of Avery’s false imprisonment, doubts would creep in, Penny said–a school teacher, for example, who lived across the street and had Steven’s twins in his class had questioned Penny’s lack of doubt after the mother of the twins had repeatedly vouched for Avery’s alibi–but Penny always found an excuse to wave them off.  Without feeling a touch of arrogance, she must have told herself that people from Avery’s class, and there were many who swore they were with Avery, far away from the beach when the attack occurred, make no scruple to tell lies whenever it is convenient to do so.

I am not trying to suggest that Penny Bernsteen is in any way a bad person, at least not by the usual standards by which we gauge such things.  I am suggesting that one risks a great deal in a small town by going against the common current.



  • I recently visited Wisconsin on business and made it a point to ask people their thoughts on Avery. Over and over again, people there would say the family is bad. The majority kept referring to the first rape case and the burning cat. It’s like they refuse to believe the first case was bogus and that authority figures can never no wrong. I felt as if the entire state was in some alternate stepford-wives type universe.

  • Also unrelated to this post, but must be totally debunked–The allegation of SA molesting Brendan—Steven was in jail when Brendon was born. Brendon was almost 15 years old when he was released. The smear campaign always implies “when Brendan was younger” and it would have been physically impossible—
    They seem intent on a media campaign to prove he deserves this, “cause he’s a bad person.” Which means they have no evidence…that won’t matter if they can convince the public he’s a deviant that’s right where he belongs—–

    • It mainly seems to me that Steven was living a quiet life — working hard every day at the family business, staying away from alcohol, getting up early, hanging out with his girlfriend, going to bed early. These are not the habits of a killer. They are the habits of a man interested in getting his life back in order.

      • That seems so apparent–he has NO motive and millions to lose. The campaign to smear him is so blatant.

  • Daniel, Listening to the calls to the Manatowoc Sheriffs dispatch ( youtube, just audio)Officer Greg Shutter(sp) calls dispatch to get him Penny Bernsteins address and phone # (after they found the rav4) 1st dispatcher had no clue, she asks Kay, finally comes back on and says they don’t have it and Penny is probably not her real name. While they’re looking, you can hear Greg say to someone else “she already did an interview last night”–He tells him he’ll get the # from someone else. Why would they want to speak w/her? To warn her the guy who didn’t rape her was being investigated? Or were they trying to control who she spoke to about things? Any insight to them wanting her address and phone#? What were they trying to achieve?

    • A great question. Seems to support the idea that many in the town, including many in law enforcement, never really could bring themselves to believe that Steven Avery was innocent the first time.

      • I found this–Steven tells Fassbender in interview that Tammy said the cops planted the rav4 andHe also says that Tammy Weber told him that Theressa’s family and Penny Bernstein are friends. Steven claims that Weber told him that the Halbach family and the cops are trying to set him up. He is confused about how it was actually described to him, but that this was the jist of it. Yea, don’t know the validity of statement but if Penny is friends’ w/ the Halbach family..??

        • We know that Beerensten was a prominent member of that community. If the Halbach’s were too, or nearly so, then it is very likely that they knew or knew of each other. It’s a pretty small place, after all, and I would think all of the prominent families would know each other on some level. I think it’s this way pretty much everywhere. What’s striking to me is how little has been brought out about these various relationships given the level of attention this case haw drawn internationally. If you are familiar with In Cold Blood, Truman Capote traveled all the way to Holcombe Kansas in the 50s as a diminutive gay man from the South, no less, and spent quite awhile there to get his story. The result, of course, is literary history.

        • Tammy is an interesting point. Steven did bring her up in his interview, as the person that told him the police put the car on his lot. A great deal of the police reports and the trial transcripts can be found online, but nothing on Tammy anywhere. They must have questioned her. Neither the defense nor the prosecution ever brought her up in trial. I would like to see that police report/interview. I think they can be requested from Calumet County, but I have no idea how to.

          The other thing I found odd, was even though Fassbender has Tammy’s full name in his report, he did not initially ask Steven, “Tammy who?” Why would he not, in that moment, be interested in Tammy’s last name? Fassbender must have know who Steven was talking about. Which is a little odd.

          I wish I could remember where I read it, but I want to say Tammy is related to someone in the police department. (maybe her grandfather?) I know its a fairly worthless statement without a source, but maybe someone reading this knows and can either debunk or confirm?

  • Where I think this woman failed in truth was when she said she was ‘absolutely positive’ she had been raped by Steven Avery. Obviously, she was horribly mistaken. If you don’t know for sure, you have to think ‘am I willing to send someone to jail for the rest of their life’. No, I couldn’t live with that; always wondering…

    • I think she was positive. I don’t think she said that just to say it. I really don’t want anyone to blame her. I hope you can look at what the first responding officer did, suggesting it was Steven she had just described. Then having Gene Kuche draw, no trace, a picture of Stevens old conviction photo and show it to her, and then only after this put him in a line up without the “sandman” being there. This woman was traumatized. These officers made this happen. The sad coincidence is they do look similar in image. Not in size or eye color, but Penny reported the size correctly., it was the officer that decided that was not important. Had these officer not taken these liberties, we don’t know Penny would have ID him. They gave her background on Steven as well. Let’s try to place the blame where it belongs.. Steven did.

      Lets face it, if Steven blames the police and can forgive her…

  • “To Kill a mockingbird” comes to mind….

  • “unlearning” is much much harder than learning or coming to believe something in the first place. We’re wired that way so that things “stick”. Group impact is even harder to overcome because the ‘norms’ are reinforced subconsciously. The downside of that stickiness and ‘group think’ is when you learn something wrong.

    If you want to see the impact of media, read http://www.convolutedbrian.com/category/steven-avery and go back to the very first postings and read forward in time. Same on Reddit for the original case. The shift in attitude is startling. There is a PhD thesis in studying the psychology of small towns using this as a case study.

  • The irony! Watching this video of you talking with the Manitowoc townies reminded me of Arthur Miller’s ‘The Crucible’. And all the while in place named after the powerless First Mate in Moby Dick! Tragic, that’ll it could be a couple of years before Steven is fully exonerated. Moreover, I sincerely hope the Federal Court can cut through the horsesh!t that was Brenden’s trial and post conviction appeal.

  • I just want to add, she said the feeling of guilt was worse than the rape.

  • You should listen to her old interview with radio lab. The days following Stevens exoneration, she felt extreme guilt. She even said in the interview she had gone for a run on the tracks and for a moment in time just wished to be hit (or something close to that)

    She also indicates she was never really able to associate her rape with anyone else mentally, because she had thought it was him all those years. Her therapist told her she would not be able to change that.

    Its actually an interesting interview. She also originally did not think Steven was guilty of the TH murder.

    She stated his forgiveness was one of the best gifts she could have received (not her exact words, this is form memory) You can listen for yourself.

  • It really shows how polarized people can be. Small town thinking for small minds. They have to believe in what they believe because if they don’t then they world will come crashing down on them. Very sad,,, actually.