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Reasonable Doubt

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Abandoned sneaker on a beach (phunkstarr/flickr/CC-BY-2.0)

On July 29th, 1985, a 36-year-old woman named Penny Beerntsen went for a jog on the beach near her home. About a mile into her run, she passed a man in a leather jacket, said hello and kept running. On her way back, he re-appeared. What happened next would cause Penny to question everything she thought she knew about judging people — and, in the end, her ability to be certain of anything.

NOTE: This segment contains graphic descriptions of sexual assault and violence.

Comments [40]

Patrick Burr

Was Gregory Allan in the original line up? If he wasn't and the police knew about Allan's previous history then they really dropped the ball.

May. 30 2014 10:52 AM
Johnny

Oh my god Penny. I feel for you. I am glad you found some healing in letting go of anger... but please let go of the guilt. You have been so strong and absolutely done your best in some of the most horrific circumstances anyone could go through. Humans aren't perfect. But you have tried really hard. Thanks for your courage, your honesty, and your work. Huge respect to you, from one survivor to another.

Feb. 07 2014 07:49 PM
Jon Rakos from Phoenix

I started listening to Radiolab a few weeks ago and worked my way up from the first episode on the recommendation of a coworker. I heard Pat say, Penny Beerntsen, but nothing clicked. I tuned in when i heard "on the shores of lake michigan" i thought, hey, i grew up on the shores of lake michigan. Then, "in a little town called manitowoc", i thought....I GREW UP IN MANITOWOC. I said to myself, the world cant get any smaller, then her husband said Beerntsens and i almost had a stroke. We lived right up 8th street next to waldo blvd. I remember thinking when i was little...i could live in this candy store...yes i could and it would be amazing. The people were always nice, they gave me tasty treats and the fortune scale was always a laugh.

The reason i decided to post something was because i saw you were commenting and i thought, this lady who was so nice to me went through this. The last statement about having to be comfortable with uncertainty, really hit me. I couldn't stop thinking about the little chocolate bears with tutu's you made for my moms dance students that they got after their recital at the CCC in the 90's. I just kept remembering all the little girls, and from time to time boys, being so happy to get that little bear. I just wanted you to know, my sister and i, were always ecstatic when we heard we were stopping by beerntsens. Its a safe bet that all children in manitowoc were more than happy at the news of a trip to your store. I suppose my recollection of you is that of a child, simple but honest. So, WITHOUT A DOUBT, thank you and keep all us kids in mind anytime you feel down.

Aug. 07 2013 08:03 AM
Kyle from Joliet, IL

I have a request of people posting - please read all the posts before asking questions. Several posts ask questions that have been addressed previously.

Regarding eyewitness testimony of unknown persons: this can always be a slippery slope, especially if detectives are steering a victim towards a particular suspect and this happens too often.

Some suggest Penny had a "sixth sense" about Avery when she saw him in the lineup: Please folks this is how the Salem Witch Trials were conducted and while Avery had committed horrid acts previously I must ask - Do you really want to introduce this kind of superstition into the justice system?

Hindsight is 20/20 but we should not throw people into prison for 18 years based on "creepy feelings" or someone's hair standing on edge.

I would be interested to learn more about the facts and evidence in the Avery murder trial. There are some unanswered questions for me but I hope they were addressed in the six-week trial. I understand TV shows, articles and interviews can't cover every detail.

I also understand prosecutors can be overzealous and can manipulative evidence. I don't necessarily mean planting evidence (although I am sure it happens) but it also includes errors of omission such as ignoring or eliminating evidence that contradicts the evidence they consider useful.

I also know defense attorney's are master spin doctors and will suggest every crazy story they can think of to create reasonable (or unreasonable) doubt.

This makes it tough for jurors to get to the truth when one or both sides are playing dirty pool.

Jul. 01 2013 10:04 AM
Dianne Martinez

I heard this broadcast interviewing Penny and it has haunted me. I can't imagine what she went through. He teooing the story was very moving and gut wrenching. I will never forget it.

Jun. 04 2013 03:48 PM
beautifulleper

haha, trolls are hilarious, I don't understand why people take them selves so seriously that they would care that much about what is obviously a trolling.

Jun. 02 2013 05:36 PM
TrollToll

She was probably wearing skimpy clothing to stay cool while running. Her fault for provoking him.

Jun. 02 2013 08:02 AM
one of many

Penny,
There aren't the words or the space to express my empathy for your experience. There's one comment I want to make regarding research, published articles, and experts on memory: they have limitations. Having experienced sexual assault at a very young age (as many have), there are few studies, published articles, and experts that I have come across that have explained how my memory worked in the recall and processing of the trauma. However, there are some, Jennifer Freyd to name one. I agree with Daniella (and Joseph, I know what you are saying but I think there is a misunderstanding of what she was describing.) To me it seems you sensed accurately even if you identified inaccurately. Have you considered that when you met Steven Avery maybe both of your responses to him (distrust then assurance ) were accurate? That maybe he had two responses to you as well (from possible prey to a human being he wouldn't harm)? Maybe it was the interaction and dynamics that changed how both of you perceived and treated each other in that encounter. Clearly though, Steven Avery didn't have control over his ability to treat all other human beings (and purportedly animals) humanely. Sadly, that is quite common but I believe changeable. Starts with healing.

May. 31 2013 03:37 PM
Ezwages from NW Florida

big fan of the show; I hated this episode. I expected science and analysis. the first two parts were find, I enjoyed them. the third segment will probably live in my mind for years. I hate to know what happened to those people that I can never have an influence over or help. LEAVE THE DRAMA to "This American Life" and stick to science. If I wanted to read a horror novel I would read one. stick to the science.
Yours truely
ezwages

May. 21 2013 11:29 PM
Leah from Idaho

This is one of the most compelling stories that I have ever heard. I want to thank Radiolab for their amazing work, and especially Penny for her bravery in sharing this story. This piece really represents all of the best things about this show-it's incredibly compelling and thought provoking. I have to admit, I almost bailed on this episode halfway through, but I'm so glad I stuck it out. Amazing.

May. 08 2013 12:53 AM
Nancy from Chicago

This is a compelling story and after listening to the podcast I did a little online research. It appears that there is some doubt as to the guilt of Steven Avery and his nephew in the death of Teresa Halbach. (Penny - I live one town away from your current residence.) http://justicedenied.org/wordpress/archives/736

May. 03 2013 11:12 PM
Rose from New York

Thank you, Penny, and your husband, and the producers, for having the courage to tell this story. I was deeply moved.

I had a few questions I was left with - I'm not sure if this is the correct forum, so please re-direct if so (Radiolab crew):

1) Was Gregory Allen in the original line up (along with Steven Avery) and if not, why? if the police had been following him?

2) Perhaps this could constitute an entire other episode, but I thought it was a tribute to Ms. Beernsten's character and strength that she continued to run, cross country ski, alone, and find solace in that. How did she manage this after the attack?

3) Ms. Beernsten spoke of her guilt regarding the unfortunate and tragic death of Teresa Halbach. Perhaps Ms. Beernsten can find comfort in the fact that because of her testimony (however false) she may have saved other women's lives over the course of Mr. Avery's sentence? Of course, this is part of a larger ethical and legal discussion, but could be a perspective that could bring her comfort?

Thank you for your consideration, and again, thanks to Penny and the Radiolab team.

Rose

Apr. 27 2013 12:03 PM
Hilary

This was an incredible story. Thank you Penny Beerntsen and your husband for both the original story and for your follow up answers (I was wondering about the line up as well).

Apr. 26 2013 01:46 AM
Joseph from New York

I actually want to reply to the comment left by Daniella which is pretty disturbing to me. What Daniella is prescribing is really just prejudice and it opens the door to racism and bigotry of all sorts. Moreover it seems to have completely missed the point of this entire episode.

Anyway I'm really sorry to hear about your tragedy Penny. There's no way you could have known so you shouldn't be hard on yourself.

Apr. 22 2013 05:48 PM
Hannah

I want to express my deep appreciation for Penny, her openness and honestness about a traumatizing experience in a public forum, and her continuing education and commitment to whatever clarity can be found on this forum. Ms. Beernsten you are a woman of extraordinary strength and I hope all the other survivors out there who hear your story can gain some solace from at least knowing they are not alone.

Apr. 14 2013 03:43 PM
Daniella from Israel

Dear Penny, I am a self-defense instructor and I wanted to tell you that you are not crazy and you did not misjudge anyone. You judged Steven Avery *exactly right* the second you lay eyes on him. Your intuition very accurately told you that this man was dangerous. The hairs on the back of your neck, your visceral reaction--you knew what he was capable of. You just interpreted the feeling to mean that you knew he was the man who assaulted you. No one could blame you for this misinterpretation. When our intuition gives a signal, the signal is emotional, physical, not logical. But it is real, and you felt it and responded in the most logical way possible under the circumstances.

Later, you quieted your intuition about Avery and managed--with some difficulty--to "erase" your initial reaction, but that initial, intuitive reaction did turn out to be correct.

What I'm saying is, you were not as "wrong" as you think you were. Please don't be so hard on yourself. You did the best you could under the circumstances. And trust yourself! You were right about Avery, even if it wasn't in the way you thought!

I was glad to hear you have managed to move forward and wish you only the best. You have incredible courage in sharing your story. Thank you.

Apr. 14 2013 05:35 AM
Sarah from San Francisco

Thank you, Penny, for sharing your story! It really resounded with me and I appreciate your openness and honesty. This whole episode is one of my favorite Radiolabs.

Apr. 11 2013 07:46 PM
Penny Beerntsen from Chicago, IL

As the woman involved in the assault in the third segment, I just want to lay to rest some of the speculation regarding whether I was assaulted by two men.

I CAN ASSURE YOU THAT GREGORY ALLEN WAS THE SOLE ASSAILANT. There was no semen to be tested, only DNA on hairs which were preserved. Steven Avery's 16 alibi witnesses were telling the truth: he was at his father's auto salvage yard pouring concrete at the time of the assault, then took his wife and five children to Green Bay, where they ran a number of errands. Although my husband and others who attended the trial felt that the alibi testimony of the various witnesses sounded rehearsed, it was true. (It's possible for testimony to be both rehearsed and true, if what you're rehearsing is the truth.)

The sheriff's dept. had a deputy recreate the trip from the beach to Green Bay, but it really wasn't a re-enactment of Avery's journey. The sheriff's deputy left the beach, got in his squad car and took the interstate from Two Rivers to Green Bay, exceeding the speed limit by 10-15 mph but no more than 15mph. He did not go through a drive through lane at a restaurant or to a car wash, but made it to the Shopko store in the 68 minutes time allotted. (I testified the assault started at 3:50 p.m., lasted 10-15 minutes. Steve had a time stamped receipt showing he went through the checkout at Shopko at 5:13 p.m.)

Steve testified that he gathered his family into the car following the 4 p.m. conclusion of a TV show. He took country roads to Green Bay (and did not exceed the 55 mph speed limit), went through a car wash, stopped at a fast food restaurant, arrived at Shopko, went to the back of the store to the paint department, spent time trying to find the right paint, and went through the check-out at 5:13 p.m. This testimony was all verified as true.

Although I faded in and out of consciousness, I was never unconscious for a lengthy period of time. THERE WAS ONLY ONE ASSAILANT, AND THAT ASSAILANT WAS GREGORY ALLEN. I wish I could say that both men assaulted me, because then I wouldn't have been mistaken about the identify of my assailant. However, I clearly made an error.

Unfortunately, eyewitness testimony can be highly unreliable. Dr. Gary Wells, an expert on how memory works, says eyewitness testimony should be viewed as "trace evidence"----the assailant left a trace in the memory of the survivor. My assailant told me he had a knife. When a perpetrator uses or threatens to use a weapon, victims often focus on the weapon. In my case, I spent time trying to figure out where he had the knife hidden and how much I could struggle before he decided to pull it out and use it. I gave a very detailed description of the leather jacket he was wearing because I spent time looking at it and trying to see if there was a knife visible in one of the pockets.

Victims should report the crime. However, it's very dangerous to convict someone if eyewitness testimony is the ONLY evidence.

Apr. 07 2013 08:24 PM

Thank you for responding, Penny!

Apr. 05 2013 05:33 PM
Tracy from CA

Penny may have been right after all. Steven Avery may have knocked her unconscious then Gregory raped her whike she was out. He may have been following Steven's case because he wasa partner in crime.

Apr. 03 2013 03:55 PM
Penny Beerntsen from Chicago, IL

Dear egbeier,
Please don't beat yourself up because your assailant was not prosecuted after your attack!! The decision whether or not to prosecute is made by police and prosecutors, not by victims. You survived---thank God----and did everything you could to convince the powers that be to press charges. I can't begin to imagine how horrible it was for you to be certain of your identification, and not have the person responsible be held accountable.

Your last paragraph says it all. As a survivor, despite initially wanting to vanish from the face of the earth, I realize that to have lived is the greatest gift of all, and carries with it a responsibility to move forward. We have to seek support wherever we can find it, and then make each day count. I was blessed to have the help of family and many friends during my healing journey. When Theresa Halbach was murdered by Steven Avery it was the worst way to be reminded of my responsibility as a survivor. Theresa didn't get a second chance. I did. Making the most of each day is one small way of honoring her.

I have been blessed with two beautiful granddaughters. Three year old Chloe bounds out of bed each morning and declares, "It's a beautiful day!" What a glorious reminder to live in the moment and to greet each morning with enthusiasm for what might be! Wishing you a beautiful day and many more to follow. Thanks for writing, and be kind to yourself!

Apr. 03 2013 08:33 AM

TRIGGER WARNING: My comment includes descriptions of violence.
Hello. Penny if you are reading this, thank you so much for telling your story. You did your best to move forward at every point and your service is a wonderful thing.

Your story really touched me because I was also attacked and raped by a stranger who made me feel that he would kill me. When I saw his picture later, I felt CERTAIN that it was him and wanted to prosecute. However, attorneys told me that my identification wasn't sufficient evidence because of witness mistakes. That was one of the most painful and frustrating parts of my journey - to know who did caused me the pain, yet to not be able to fight back against him. I had gone to the hospital immediately, and just like you Penny, tried to preserve the evidence as much as possible. But, there wasn't enough evidence left on my body and the detective did not believe me.

Eventually, unfortunately, my attacker went on to attack several other women and a little girl. He kidnapped and maimed many of his later victims. He is now in jail where he belongs. I had in some ways the opposite experience as Penny because I felt that if I had been more persuasive in convicting him earlier, other people would not have suffered so much.

One thing I take away from this is that we can only do our best, as survivors. We have to find it within ourselves to move forward, and only part of that is placing our assailants in jail... part of it is community service and other things that make our lives worth while. I am SO glad that you weren't hit by a train Penny, because you have SO much more to offer. Thank you.

Apr. 02 2013 05:50 PM
Mila

I found it incredibly disturbing that Steven Avery was met with free makeovers, donations, and support from the community on his return. I understand that he was misidentified and had to face 18 years for a crime he did not commit. But this was a man that threatened a woman at gunpoint and was guilty of other troubling offenses PRIOR to the misidentification. Police were watching him, he was not an innocent hero wrongfully convicted. It is frustrating that the love and support the community provided to Steve was not focused on (or perhaps not mentioned in the story) the survivor of an incredibly violent sexual assault. Penny is an incredible woman and should not feel any guilt whatsoever.

Apr. 02 2013 05:02 PM

I've read and seen allot of documentaries and such about this kind of thing. Witness testimony, line ups and such. I saw a tedtalk (much recommended, Scott Fraser: The problem with eyewitness testimony) about this kind of thing to. One thing that is an extremely driving factor in witnessing is the wish to get that f***er back for what he did... this invariably will mess with objectivity.
In the ted talk there was allot of people who identified a drive by shooter. After appealing, the defense where able to show that the light was not even good enough for the judge (or any one else), in a reconstruction on location, to identify who or even how many where in the a car that was standing perfectly still. In other words, none of the witnesses had been able to see even how many people where in the car and still a young man was put in jail for this and only let out after appeal...

The biggest conclusion I draw from this is that witness testimony can not be used to identify a unknown person in a court of law. It is simply not accurate enough.
Testimony can be used to determine order of events and to place people (known or unknown) in to these events. In some cases it can be used to give investigators suspects, but this can never beyond the shadow of a doubt prove anything.

Testimony can, in the best case, lead to a uncertain, correct conviction, witch ofc can never be verified to be correct and should not be carried through. And in the absolutely worst case a wrongfull death sentence, like in the case of Cameron Todd Willingham (look it up, much recomended).

Apr. 02 2013 04:49 AM
Terry A Miller from Oakland, CA

Isn't it possible that Penny Beerntsen was right but not in the right case in one of those inexplicable events in which you're able to read a character? I have a job in which I do a lot of hiring and sometimes I've gotten a creepy feeling about someone but ignored it because they looked fine on paper. Almost every time I dismissed it, I've regretted hiring that person because they end up doing things that inevitably get them fired.

Penny stated that when she saw Steven Avery "her hair stood on end." Could that be because she had a feeling that he was capable of such a thing? Perhaps by accidently fingering Avery she kept him out of the community where he could have murdered someone earlier he eventually did.

Apr. 01 2013 10:51 PM
Roz from California

I listened to this episode twice because something was tickling the back of my neck too, and the second time both my husband and I found ourselves wondering if, just as in Teresa Halbach's case later, there hadn't been two men involved in the assault on Mrs. Beerntsen. She could well have gotten glimpses of Steve as she went in and out of consciousness. In fact, he could even have made the initial assault and then invited Gregory Allen to rape Mrs. Beerntsen, just as he later got his nephew to rape Ms. Halbach. This might also explain why Mr Allen was keeping such close track of Steven Avery's appeals.

Mar. 31 2013 11:53 PM
JenW from Coastal Bend of TX

Penny, your story left me breathless over and over. I am in awe of your courage, determination, and honesty. After all that was taken from you, you continue to give. So glad you persisted and survived.

Mar. 31 2013 01:49 PM
Austin from Brisbane, Australia

At the age of 22 I was next in line to be President of one of my college's religious groups. Realizing that I would have to stand up in public and defend the existence of God I went through an intense two weeks of prayer...then thought...then of reading all St Thomas Aquinas' reasons for the existence of god. None of them stood up. I then, in a few days, "saw the dark" as I jokingly put it. I went through, in reverse, the stages Billy Graham says you have to go through in "accepting" god. It was a huge relief. I walked lighter and am now not agnostic but truly atheist and have never looked back. I'll be eternally grateful for having had to make a definite decision. I lost my friends as I used to lunch with that religious group, but it didn't matter. I was free, and still feel that way. Re the story I feel really sad for people who retain that nagging doubt. It isn't fun.

Mar. 31 2013 03:33 AM
girlwithglasses

Regarding Mrs. Beerntsen's comments on judging the character of Steven Avery, I would have thought it would be almost impossible for her to make any kind of accurate assessment of whether he'd be capable of murder. It sounded as if the release from jail made him into something of a local hero, and with his compassionate performance at the meeting with Mrs. Beerntsen, it would be easy to see him as a poor innocent guy who had been dealt a terrible injustice. It would be difficult for anyone to accurately judge Avery at that point.

That Avery committed murder after his stretch in prison makes me wonder what an appropriate treatment for people like him would be. He had shown signs (animal abuse, attempted abduction) before the Beerntsen affair that he was headed down the wrong track; it would be interesting to know whether he thought that he would get away with the murder, or whether the thought of going back to jail was not enough of a deterrent to stop him killing the photographer. If you have people who seem to lack empathy and/or morality like Avery, is there any way to instill these senses into them, or is the best thing to lock them up and throw away the key?

Mar. 30 2013 11:04 PM
Donna Woomer

This was one of the best segments I have heard. Honest and sincere emotion. All I have to add is that although she misidentified the assailant there was something that made her know his true nature. Forgive yourself. Thank you for this story.

Mar. 30 2013 01:30 PM
Penny Beerntsen from Chicago, IL

Yes, Becca, Steven Avery and the actual perpetrator, Gregory Allen, did look alike in some respects. One would never mistake them for twins, but others without an emotional tie to this story, commented that they looked as if they could be brothers.

However, the fact that the hair on the back of my neck stood up when I saw Steven Avery in the live line-up might have happened even if the two men did not look much like one another, because of the way memory works. I would refer you to published articles by Dr. Gary Wells from Iowa, Dr. Steven Penrod, who I believe may now be at John Jay University in NYC, or Dr. Elizabeth Lofton. All of them have published extensively on memory and how it works.

In a nutshell, our memories are affected by post-event occurrences. I initially had a picture in my head of what my assailant looked like. Then I gave a description to a police artist, who completed a sketch. At that point I have two images in my head----the original image of my assailant and the image of the artists sketch. Immediately after completion of the sketch I was shown nine photos simultaneously of suspects. I selected Steven Avery's photo. I now have three images of my assailant in my memory. A day or two later, because I had received a threatening phone call, the sheriff put together a live line-up "to make sure we have the right person in custody". Steven Avery was in the live line-up and I selected him. As stated in my initial comments above, he was the only individual in both the photo array and the live line-up, and my actual perpetrator was in neither.

Based on extensive research, best practices indicated that line-ups should be sequential, rather than simultaneous, whether they are photo or live line-ups. A simultaneous line-up is sort of like a multiple choice test: if it's a halfway decent line-up, one of the individuals will look most like the perpetrator. A sequential line-up, where the witness views one photo or one person at a time, is more like a true/false question. The witness isn't able to compare the individuals in the line-up to one another. Rather, the witness must compare one individual at a time to the image in their memory. The problem in my case was that both line-ups were perpetrator ABSENT, so I never had an opportunity to identify my actual assailant. Once memory has been "contaminated" by post-event occurrences, it's impossible to go back and extract the original memory.

This is a VERY abridged description of the research, but hope it helps answer your question. Interestingly, when I saw Gregory Allen's picture for the first time, 18 plus years after the assault, I would swear I've never seen him before in my life. This was also to be expected, according to the social scientists and researchers. For 18 years, the face I saw in my nightmares and flashbacks (and whenever I was in court), was Steven Avery's.

Mar. 29 2013 06:02 PM
Karl James from London, UK

A stunning piece of audio. Penny Beernsten, thank you so much for sharing your painful story so honestly. Radiolab: this is some of your best work. No frills. Delicate use of music. Great story telling.

Mar. 29 2013 01:06 AM
Becca from Chicago

Thank you so much for sharing your story. Did Steve and the true perpetrator look alike? If not, how do you explain why the hair stood up on the back of your nek?

Mar. 28 2013 10:21 PM
Brenna

Thanks so much for the feedback everybody -- we've added a warning to our web copy.

Mar. 28 2013 12:47 PM
Nicole

Penny, your story is amazing. You are amazing. Your effort to own this experience and everything that came after it is nothing short of heroic. It is terribly difficult to question your judgment and live without certainty. You can be sure that you always acted in good faith. It's all any of us can do.

Mar. 28 2013 12:00 PM
Duncan Birch

Such a harrowing story must of been so difficult to deal with all those emotions!

Mar. 28 2013 11:16 AM
Penny Beerntsen from Chicago, IL

Ann, Gregory Allen was not in the photo line-up I viewed or the live line-up. Steven Avery, the man I misidentified, was in both line-ups, and was the ONLY individual present in both line-ups. I never had an opportunity to identify my actual assailant because both line-ups were perpetrator absent. It was the city police department who had been keeping tabs on Gregory Allen and tailing him in the two weeks prior to my assault. It was the county sheriff's department which had jurisdiction because I was assaulted on county, not city, property.

Molly and Jen and any other listeners: my apologies if the episode was upsetting. I think your suggestion to put a written warning on the website is excellent. (I have not yet downloaded the podcast, so I haven't heard how the interviews in this segment were edited.)

Mar. 27 2013 10:22 PM
Ann

At the time of Penny's assault, the police had been keeping tabs on Gregory Allen, the "known sex offender" eventually identified as Penny's actual assailant. Mr. Allen presumably matched the physical description Penny provided of the man who attacked her. I am curious if Mr. Allen was one of the other 8 men standing in the line-up in which Penny mistakenly identified Steven Avery?

Mar. 27 2013 09:26 PM
Jen from Pittsburgh

I agree so much, Molly. This one made me cry.

Mar. 27 2013 03:07 PM
Molly

Within the broadcast is a warning that this story could be upsetting, but please put in writing on your website a trigger warning for sexual assault and violence.

Mar. 27 2013 01:30 PM

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