Jason Smathers

USA TODAY NETWORK-Wisconsin

Those who watched Netflix's "Making a Murderer" heard from multiple advocates of Steven Avery, but one voice was conspicuously absent — his original trial attorney, Sheboygan County Circuit Court Judge James Bolgert.

The Netflix documentary features an interview with Reesa Evans-Marcinczyk, an assistant public defender who represented Avery prior to trial. But while Evans-Marcinczyk speaks about the case and her belief in Avery's innocence, she did not carry the case to trial.

Evans-Marcinczyk became ill before the case moved forward, leaving the case in the hands of then-defense attorney James Bolgert, who now serves as the Branch 5 Sheboygan Circuit Court judge, who carried the heft of Avery's defense in the 1985 trial that led to his wrongful conviction for the rape of Penny Beernsten.

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While the documentary points to moves by the Manitowoc County Sheriff's Department that may have stacked the deck against Avery, it spends little time explaining what defense did to try and bolster Avery's case.

While Bolgert chose not to work with the documentary filmmakers and did not return phone messages left by the Sheboygan Press seeking comment for this article, Bolgert's role in the trial has been explained at length before in the book "The Innocent Killer," Michael Griesbach's recounting of the events of Avery's wrongful conviction and eventual arrest and conviction of the murder of Teresa Halbach.

Griesbach's book makes clear that Bolgert did almost everything he could to steer a jury toward acquittal. While Bolgert lost several pre-trial motions to suppress evidence — those filed by Evans-Marcinczyk before she left as Avery's counsel — Bolgert is portrayed in the book as going toe-to-toe with then-Manitowoc District Attorney Denis Vogel.

Whereas Vogel began his case with emotional appeals to the jury, including restaging the assault, Bolgert marshaled several alibi witnesses to put the state's timeline in doubt, he also brought in an expert witness to cast doubt on rape victim Penny Beernsten's ability to recall and identify her attacker.

"But all things considered, when Jim Bolgert rested his case, he felt pretty good about the prospects of acquittal," Griesbach wrote. "He believed firmly in his client's innocence, and left nothing on the table in presenting his defense."

While the jury obviously believed Beernsten's identification of Avery, at least one part of Griesbach's book suggests that testimony from a cement truck driver may have played a key role in the conviction.

The driver testified that he left the Avery residence at 2:30 p.m. rather than 3:30 pm., as Avery said. That would have given Avery a larger window to have possibly committed the sexual assault. Griesbach notes in his book that the jury explicitly asked to review a note the driver used to recount his hours on that day.

While Bolgert didn't speak to the documentary makers about the impact of the trial, Griesbach wrote that the conviction had "worn heavily" on Bolgert.

"At times, he testified at his deposition, he felt 'grief stricken' over the whole thing," Griesbach wrote. "In 2000, he had a conversation with Denis Vogel and told him they had to do something about the case, that it was 'a travesty' that kept him up at night. But Vogel replied that he never lost any sleep over it."

Reach Jason Smathers at 920-453-5167 or jsmathers1@sheboyganpress.com.