John Ferak

USA TODAY NETWORK-Wisconsin

Legal experts are strongly criticizing the sensational pretrial press conferences conducted by special prosecutor Ken Kratz leading up to the 2007 jury trials of Steven Avery and Brendan Dassey.

Kratz's strategy, say experienced lawyers and legal scholars from across the country, crossed the line of ethical conduct, and are in the public eye again now because of the release of the smash-hit Netflix documentary "Making a Murderer."

Nearly a decade ago, Kratz revealed gory, unfounded allegations against Avery and Dassey while they were jailed for the Oct. 31, 2005, disappearance and murder of Teresa Halbach, a 25-year-old freelance photographer from Calumet County. Halbach visited the Avery Salvage Yard in rural Manitowoc County on the same day she was last seen alive. Human remains identified as Halbach's were later found on the Avery property.

Barely four months into the case, Kratz made at least seven statements to the press implicating Avery or Dassey, or both, in Halbach's murder, according to court records. By August, Manitowoc County Circuit Judge Patrick Willis rejected a motion filed by Avery's attorneys Jerome Buting and Dean Strang asking the judge to dismiss the charges against Avery because of "inflammatory and highly prejudicial" pretrial publicity. The judge from Manitowoc ruled there was no legal precedent for such "drastic" action.

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Timeline: History of the Steven Avery case

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Related:Avery defense team rips Ken Kratz on CBS show

Other legal scholars and law observers have a different view of Kratz's conduct.

"A defendant has a right to a fair trial, which means a trial in which guilt or innocence is determined only by evidence received in court and evidence only evaluated by a jury," said Ben Kempinen, University of Wisconsin Law School clinical professor of law and director of the Prosecution Project.

"To me, those press conferences would suggest a colorable violation of the (bar association) trial publicity rule. The risks of prejudice are magnified in smaller communities because of the pervasive nature of the publicity and the likelihood that virtually the entire community will have strong feelings about the case. The Avery case appeared to have captured the attention of the Fox Valley market ... and you cannot un-ring that bell."

On Thursday, Kratz told USA TODAY NETWORK-Wisconsin that his pretrial comments leading up to the jury trials of Avery and Dassey were proper, and his statements fit within the guidelines of the state's supreme court rule.

"As my comments fit within the rules, there was no professional sanction imposed," Kratz said. "I made no attempt to poison the jury pool and in fact made no further comment until the Avery trial began, as I recall. If I had it all to do over again, I would have simply released the criminal complaint rather than making a verbal statement. Not because I was not allowed to make the comments I did, but due to the criticism I received in the 10 years since."

Prosecutors bound by ethical standards

Wisconsin's rules of professional conduct for prosecutors resemble those that are recommended by the American Bar Association.

Prosecutors are not supposed to be making public statements prior to a defendant's trial regarding the following areas:

"The character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness."

"The identity or nature of physical evidence expected to be presented."

"Any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in deprivation of liberty."

"Information the lawyer knows or reasonably should know is likely to be inadmissible evidence in a trial and would, if disclosed, create a substantial risk of prejudicing an impartial trial."

Document:Wisconsin's guidelines for lawyer conduct

On March 2, 2006, Kratz began a press conference by warning children under the age of 15 years old not to watch or listen to the events that were about to unfold during his 25-minute session. Kratz made no such admonition for people who might be prospective jurors for Avery and Dassey.

"We have now determined what occurred sometime between 3:45 p.m. and 10 or 11 p.m. on the 31st of October," Kratz said.

"Sixteen year old Brendan Dassey ... retrieved the mail and noticed one of the letters was for his uncle Steven Avery. As Brendan approaches the trailer, as he actually gets several hundred feet away from the trailer, a long, long way from the trailer, Brendan already starts to hear the screams. As Brendan approaches the trailer and hears louder screams for help, he recognizes it to be of a female individual and he knocks on Steven Avery's trailer door. Brendan says he knocks at least three times and has to wait until a person he knows as his uncle, who is partially dressed and full of sweat, opens the door and greets his 16-year-old nephew."

Kratz told USA TODAY NETWORK-Wisconsin this week: "I gave a great deal of thought to the information I commented on, as my effort was to limit details which might be shared, trying to spare the victim's family from having all of the details in the (court) complaint released. In other words, by commenting on some of the details in the complaint, I was hoping the media would not choose to release all of the disturbing details."

Scholar calls publicity "unethical behavior"

Abbe Smith, director of the criminal defense and prisoner advocacy clinic at Georgetown University, said Kratz's opening declaration in his March 2, 2006, press conference exclaiming "we now have determined" and his continuing comments about Dassey supposedly hearing screams and running over to his uncle's trailer were highly improper for a press briefing.

"It's unethical behavior with no legitimate purpose," Smith told USA TODAY NETWORK-Wisconsin. "Prosecutors should err on the side of not inflaming the public. To prosecute a case in the media damages the legal system because you're prejudicing the jury process."

Outside Wisconsin, there are examples where criminal prosecutors received public censure for making improper statements to the press prior to the defendant's trial.

In 2003, the Maryland Court of Appeals censured Douglas Gansler, the state's attorney for Montgomery County, for making "extrajudicial" statements to the media that violated professional standards. The Reporters Committee for Freedom of the Press reported that Maryland's Attorney Grievance Commission found Gansler's statements potentially violated a defendant's right to a fair trial.

In 2012, the Indiana Supreme Court publicly reprimanded former Marion County Prosecutor Carl Brizzi. In 2009, Indiana's Supreme Court Disciplinary Commission filed a complaint accusing Brizzi of making press statements that went beyond the scope of informing the public and press. Some of Brizzi's comments pertained to an April 2008 press conference involving Bruce Mendenhall, an accused multistate serial killer, according to the the Indiana Lawyer website.

For a criminal prosecutor to discuss evidentiary tests, reveal statements made by a defendant, a confession or the prosecutor's personal beliefs about how a murder happened, "is rarely appropriate," said Joshua Marquis, a nationally-known prosecutor from Astoria, Oregon.

Here's more revelations Kratz gave the media during that March 2, 2006, televised press conference that is featured extensively in "Making a Murderer."

"Brendan accompanies his sweaty, 43-year-old uncle down the hallway to Steven Avery's bedroom," Kratz declared. "There they find Teresa Halbach completely naked and shackled to the bed. Teresa Halbach is begging Brendan for her life. The evidence that we've uncovered establishes that Steven Avery at this point invites his 16-year-old nephew to sexually assault this woman that he has bounded to the bed. During the rape, Teresa is begging for help, begging 16-year-old Brendan to stop, if he could stop this. Sixteen year old Brendan under the instruction of Steven Avery, cuts Teresa Halbach's throat, and she still doesn't die. ..."

Kratz's comments not acceptable

Randy Ritnour, a veteran former criminal prosecutor in Nebraska who has watched "Making a Murderer," said prosecutors in his state are keenly aware that they will be brought up for disciplinary measures by the state bar association if they violate the state's bar press guidelines regarding pretrial publicity. Discipline could consist of a public reprimand and be as harsh as a law license suspension, he said.

"There is absolutely no purpose for any of this stuff that Ken Kratz did," said Ritnour, who served two terms in two largely rural counties similar to Manitowoc and Calumet counties, from 2003 through 2010. "He likes and wants his name out there. He is definitely trying to get to the people who will then be in the jury pool. Even if Kratz loses (at trial), he still kind of wins anyway because he convicted Avery and Dassey in the court of public opinion."

Kratz was not the only courtroom lawyer whose professional conduct outside the courtroom in the Avery case has come under national scrutiny by the criminal justice community.

Len Kachinsky of Appleton huddled with the press outside the courtroom shortly after being appointed as Dassey's lawyer and Kachinsky referred to Avery, his client's uncle, as "the evil incarnate." Weeks later, Kachinsky openly disclosed to the press his strategy of trying to encourage the 16-year-old special education student to plead guilty. All the while, Dassey was insisting to his mother during tape-recorded jail phone calls that he was innocent and that Dassey had no idea whether Avery harmed the photographer.

On the other spectrum, Avery's lawyers, Jerome Buting and Dean Strang, gave "legitimate responses" in their pretrial interviews with the media, pointed out Kempinen, the University of Wisconsin law school professor now in his 40th year of teaching.

However, several lawyers and courtroom experts said that Kratz's behavior was clearly inappropriate for any prosecutor because his statements were eroding the opportunity for Dassey and Avery to receive a fair and impartial jury trial.

"Brendan watches Steven Avery take a butcher knife from the kitchen and stab Teresa Halbach in the stomach," Kratz continued. "What Steven Avery does then while Teresa is still begging for her life is he hands the knife to the 16-year-old boy and instructs him to cut her throat. Sixteen-year-old Brendan, under the instruction of Steven Avery, cuts Teresa Halbach's throat but she still doesn't die. There's additional information which includes manual strangulation and gunshot wounds."

Forensic expert: Kratz gives false story

Brent Turvey, a nationally recognized forensic scientist and criminal profiler in Alaska, said the crime scene evidence collected from inside of the Avery residence does not match up with Kratz's salacious and inflammatory press conference statements around the time of Dassey's arrest and purported confession to the pair of investigators.

"Ken Kratz gives this false story," Turvey said. "It's pure fantasy. The entire theory comes from the fantasies of these police investigators (interviewing Dassey). The problem here is that (Kratz) gave false information, this whole sexual fantasy, talking about Teresa Halbach talking and begging and yelling when none of this had any forensic science to back it up.

"Why does this matter? Because you are not allowed to gin up the public and misrepresent the evidence when talking to the press, and the only reason you do that is when you and the police don't have a good case to begin with. Ken Kratz was trying this case in the press to disparage the defendants. What these judges should have done was put a gag order in place. There should have been some consequences from the Wisconsin Bar Association, and the judge who is seeing this nonsense go on should have put a stop to this. Nobody in this case wanted a fair trial."

Marquis, who sits on the executive committee for the national district attorney group, said he has not yet watched the "Making a Murderer" documentary on Netflix that has drawn worldwide attention. However, he is familiar with Avery because of the national attention he gained in 2003 with his exoneration and once again in 2005 with Avery's arrest for murder.

As far as pretrial publicity, Marquis said there is a certain amount of information the public and press have a right to know. However, "a prosecutor has to be careful not to be polluting the jury pool. Generally speaking, you don't try a case on the courthouse steps, you try them in front of the jury."

'We should not be speculating and guessing'

Winnebago County District Attorney Christian Gossett said he has never engaged in similar pretrial conduct as Kratz did in the Halbach murder case.

"We really don't even do press conferences," Gossett said. "I am always leery when prosecutors are trying to grab headlines in cases. We always avoid trying a case in front of the public through the press. We know to limit what we can say to what you are presenting in court and oftentimes you guys doing the story are there regardless and you hear (in court) what we say."

Gossett said he watched the entire Netflix documentary. He drew a clear distinction between the pretrial press conference statements and the information presented in court at their trials.

"As prosecutors, we are trained professionals. We should not be speculating and guessing," Gossett said. "Some of the things (Kratz) talked about did not come to fruition in front of the juries. If you go and make a statement that you can't prove, in hindsight, it might not connect the way you think. In retrospect, people will now look at that."

Kratz served as the Calumet County prosecutor since 1992 but resigned in disgrace in 2010 after The Associated Press reported Kratz had sent more than 30 text messages over a three-day period back in 2009 to a 26-year-old woman whose ex-boyfriend Kratz was in the process of prosecuting for domestic violence.

Kratz's messages included, "Are you the kind of girl that likes secret contact with an older married elected DA ... the riskier the better? ... "You may be the tall, young, hot nymph but I am the prize!"

Kratz has since relocated nearly six hours away to Superior, Wisconsin, where he opened a private practice and works as a defense attorney. The top of his law firm's website proclaims, "Successfully tried one of the largest and most complex homicide cases in Wisconsin history (State of Wisconsin v. Steven Avery.)

He continues to stand by his handling of the pretrial publicity despite stinging criticism from others who watched the Netflix documentary.

"It became clear that it made no difference what I said, that all details in the complaint were released and discussed by the media," Kratz said Thursday. "This was the largest criminal investigation in state history, and no other case before or after can be used as a fair comparison."

When asked about Kratz's conduct as the special prosecutor in the Halbach case, Gossett said, "it was weird."

"There's an old saying I heard, you learn a lot more from the things that go wrong than the things that go right," Gossett said. "I don't think I will ever see anything again like that. You never want your life to be a cautionary tale."

Ritnour, the former Nebraska prosecutor now in private practice, said he remains troubled that Avery's jury pool was comprised of Manitowoc County residents.

Kratz was not the only powerful law enforcement official giving numerous interviews with the press that were designed to incriminate Dassey and Avery. Now-retired Manitowoc County Sheriff Ken Petersen told a television station before Avery's trial that Avery "would kill again" if he was ever released from custody. Petersen also testified at a pretrial hearing that he did not believe that Gregory Allen was the real rapist of the 1985 crime that Avery was wrongly convicted.

In 2007, Avery was convicted by a jury from Manitowoc County and given a life sentence. Dassey was later convicted by a jury comprised of Dane County residents. Dassey won't be eligible for parole until 2048. The Avery trial was moved to Chilton, which is 27 miles from Manitowoc.

"If the judge is from the Manitowoc County and the jury is from Manitowoc County, you don't really have a change of venue, all you have is a bunch of jurors taking a bus ride," Ritnour said. "It's completely a sham. There was no point in moving the trial to Calumet County. You still have the same jury pool for Steven Avery. How can anybody think it was a fair trial?"

John Ferak: 920-993-7115 or jferak@gannett.com; on Twitter@johnferak