Andy Colborn Loses Making A Murderer Defamation Suit V. Netflix

MILWAUKEE — Retired Manitowoc County Sheriff's Deputy Andy Colborn, who gained worldwide infamy in the Netflix Emmy award-winning docu-series, "Making A Murderer," learned Friday that his defamation lawsuit against Netflix and its creators failed and has come to an end.

On Friday, U.S. District Judge Brett Ludwig of Milwaukee issued his 31-page ruling dismissing Colborn's federal lawsuit against Netflix accusing the docu-series creators of defamation over the December 2015 10-part series, "Making a Murderer."

Colborn's defamation lawsuit against Netflx and the creators was dismissed on the defendants' summary judgment motion. Colborn's summary judgment motion was denied by the judge.

"In the end, Colborn’s turn in Making a Murderer may not have been to his liking, but that does not make it defamatory," Judge Ludwig wrote. "Few aspire to enter the cultural zeitgeist on such controversial terms. That possibility, though, is a necessary byproduct of the freedom of press that the First Amendment protects. If media could portray us only at our best, we would be a country of antiseptic caricatures, and less intelligent for it. We have not sunken so low just yet. "

The docu-series chronicled the Manitowoc County Sheriff's Department murder investigation in the death of Teresa Halbach, 25, that involved allegations Colborn and Detective Jim Lenk teamed up to plant multiple items of evidence against murder suspect Steven Avery. Avery was arrested and convicted of the murder, even though he has always insisted his innocence.

Manitowoc County framed Avery during the tenure of Sheriff Tom Kocourek back in the 1980s, involving a false allegation that Avery raped a prominent Manitowoc businesswoman along the sandy shoreline of Lake Michigan. Avery lost 18 years of his life to prison for that crime, which was committed by a notorious rapist named Gregory Allen.

Here are some of the key findings by the Milwaukee federal judge:

• Colborn affirmatively seeks summary judgment in his own favor based on a host of specific aspects of Making a Murderer. His kitchen-sink approach identifies 52 instances of alleged defamation. He cites the series’ use of music and graphics, its inclusion of certain statements of and concerning other people, its incorporation of true statements or protected opinions, and the alteration of reaction shots from Avery’s homicide trial. None of these can support a claim for defamation.
• Colborn also challenges the producers’ decision to show him agreeing that he could understand how someone might think he was looking at Halbach’s Toyota based only on the audio of his dispatch call. In fact, Colborn never answered that question because his attorney objected, and the judge sustained the objection ... Colborn implicitly admitted that, based only on the audio of his dispatch call, it sounded like he had Halbach’s license plate in his field of vision. This is not materially different from saying that he could understand why someone would think he was looking at Halbach’s license plate when he made the call. On top of this, Making a Murderer includes Colborn forcefully denying that he ever saw Halbach’s vehicle on November 3, 2005. In context, this captures the sting of his testimony—Wiegert must have given him the license plate number, and although it sounded like he was reading the license plate number off a car, he was not in fact doing so.
• Colborn argues that Making a Murderer falsely implies that he committed criminal acts planting evidence and is thus defamatory per se ... Defendants assert that Colborn’s case falls short for at least three reasons: (1) the implication that Colborn planted evidence is not reasonably conveyed and attributable to Defendants; (2) Colborn cannot prove that he did not plant evidence; and (3) Colborn cannot satisfy defamation by implication’s heightened actual malice standard. The first two arguments fail; a reasonable jury might find that Making a Murderer falsely implied that Colborn planted evidence. But because Defendants are correct that Colborn cannot show actual malice, this theory also fails.

In Friday's ruling against Colborn, the judge wrote: "In addition, as a matter of law, Netflix exhibited actual malice only if it intended to imply a defamatory, materially false, and unprivileged statement. But even if Netflix intended to imply that Colborn planted evidence, Colborn has no evidence that Netflix knew that statement to be false," Judge Ludwig announced in his ruling.

On Friday night, Patch reached out to Avery's post-conviction lawyer, Kathleen Zellner, for her reaction to Friday's news. The world-famous wrongful conviction lawyer continues to fight to get Avery a new trial on the basis. Zelllner insists that Avery is innocent of Halbach's murder and she has accused Bobby Dassey, one of Avery's nephews, of committing the murder, concealing the evidence and working to frame his uncle to avoid casting suspicion on himself.

"Colborn's defamation case has crashed and burned in a spectacular fashion," Zellner remarked on Friday night. "In a beautifully crafted 31-page opinion the judge points out that Colborn's unflattering portrayal in the first season of 'Making a Murderer' is protected by the First Amendment. The judge found no distortion of the truth or malicious intent in the series."

Related Patch coverage: Andy Colborn Tried To Sue Buting, Strang And John Ferak

Read the 31-page ruling here: