Strang: Well, and you can understand how someone listening to that might think that you were calling in a license plate that you were looking at on the back end of a 1999 Toyota. From listening to that tape, you can understand why someone might think that, can’t you?
[Kratz: It’s a conclusion, Judge. He’s conveying the problems to the jury.]
[The Court: I agree, the objection is sustained.]
[Strang: This call sounded like hundreds of other license plate or registration checks you have done through dispatch before?]
Colborn: Yes.
Whoa! The documentarians had literally spliced testimony to manipulate and distort the truth.
And that wasn’t all. Colborn explained to Kratz on direct examination that a detective from Calumet County had given him the plates of the missing young woman’s vehicle earlier that evening, and the purpose of his call into dispatch was merely to confirm that he had the right information before he started looking. But the documentarians chose not to include his explanation—just like they chose not to include his redirect examination, noted below, when he made the purpose for his call even clearer:
Kratz: Mr. Strang asked whether or not it was common for you to check up on other agencies, or perhaps I’m—I’m mis-phrasing that, but when you are assisting another agency, do you commonly verify information that’s provided by another agency?
Colborn: All the time. I’m just trying to get . . . You know, a lot of times when you are driving a car, you can’t stop and take notes, so I’m trying to get things in my head. And by calling the dispatch center and running that plate again, it got it in my head who that vehicle belonged to and what type of vehicle that plate is associated with.
I noticed when I watched the documentary that the inclusion of cross-examination and rebuttal during the Avery and Dassey trials appeared to depend upon whether doing so would advance or detract from the defense theory. At times it was as though the viewers were jurors who were only shown the case for the defense. Initially I had no idea the editing was this extreme.
Colborn had provided a reasonable explanation for calling in the plates that the filmmakers took great pains to prevent me and millions of other viewers from knowing. As I looked back on how I felt watching the documentary, I realized they had done it with great skill. Colborn’s call into dispatch, along with his sketchy and unconvincing testimony, had shocked me if not into disbelief, then at least into having serious doubt. But having reviewed the trial transcript, it was obvious they were trying to pull the wool over everyone’s eyes.
In a moment of high drama and with a spring in its step, Making a Murderer had jumped on the defense bandwagon with reckless abandon when it played the dispatch tape to conjure up an image of Colborn calling in the plate after finding the RAV4 somewhere out in the county other than at the salvage yard. They followed up with carefully edited portions of Colborn’s not very successful efforts to stay cool under the blistering cross-examination of Dean Strang, who had uncharacteristically taken over the bad-cop role from his partner, Jerry Buting, to whom the job came much more naturally.
The documentary hinted at Colborn’s answer as to why else he might have called in the plate, but only in the most oblique and unconvincing way. Add the foreboding music and footage of geese taking flight from a dismal-looking, fallow farm field—and the fact that they omitted the entire redirect examination of Colborn by Kratz, where he explained himself in a direct and clear answer to an equally direct and clear question—and you have an impressive, though pitiful, instance of unadulterated propaganda.
It was far too early to draw any firm conclusions about Avery’s and Dassey’s guilt or innocence and what, if any, evidence was planted by the police. But the documentarians had deliberately distorted the truth, and to be fair to the prosecution—as well as to Colborn, whose reputation the documentary has forever tarnished—I decided (reasonably, I think) to keep this in mind going forward as I evaluated the rest of the evidence.
* * *
Making a Murderer’s manipulation of the evidence alone did not prove that Colborn, and possibly others, did not plant the RAV4. I had promised myself not to give the cops or anyone else the benefit of the doubt. There’s a reason most states and the federal courts don’t permit the results of lie detector tests into evidence at trials—it’s simply not possible to tell scientifically, with 100 percent certainty, whether someone is telling the truth.
Also, it’s not just the facts that tell the whole story. The law’s clumsily worded rule puts it that “the totality of the facts and circumstances” are to be considered when deciding disputed issues. Maybe this oft-quoted rule of law is not as empty a phrase as it sounds. The more I considered not just the facts, but the circumstances surrounding the discovery of the RAV4 at the salvage yard, the more I was convinced that Colborn was telling the truth and was merely doing his job.
To many viewers, on one side of the equation was what appeared to be Colborn’s nervous, defensive appearance while testifying in court, but we all have different demeanors on the witness stand. If we’re a nervous sort, our discomfort is exaggerated under the glare of television lights in a packed courtroom hanging on our every word—especially if we happen to be an honest cop accused of serious misconduct that goes against everything we are trained to do.
You’re a cop walking up to the witness stand dressed in your uncomfortably starched and stiff sheriff’s department uniform. Your department-issued Glock, placed awkwardly in a holster at your side, scrapes against the microphone, emitting a loud screech as you try to maneuver it along with the rest of your body into the barely wide-enough witness stand. The defense has already accused you of being a corrupt cop out to get an innocent man. The case may very well hang in the balance, soon to tilt one way or the other, depending upon how you hold up under questioning by a highly skilled and intelligent defense attorney.
Now ask yourself, how would you feel? How would you do on the witness stand under the glaring lights of the camera and the watchful eyes of the jurors?
If you are blessed with being comfortable in your own skin, if you can rub shoulders effortlessly with anyone—anywhere—under any circumstance, if you’re a well-trained actor or politician, then even if you’re telling the biggest whopper you’ve ever told, you will come off as cool and collected on the witness stand.
In the end our appearance on the witness stand is much more a function of our personality than whether or not we are telling the truth. No doubt there are exceptions when a witness appears nervous because he or she is lying. In my experience, at least, people who perjure themselves on the witness stand, including the one or two cops I have suspected of doing so over the years, are accustomed to lying and come off just fine.
What about Colborn’s motivation, then, to plant evidence and set up Avery in revenge, out of anger, to escape financial ruin, to avoid embarrassment, or any of the other reasons associated with Avery’s thirty-six-million-dollar wrongful conviction lawsuit that the defense threw into the hopper? This was a recurring theme of the defense and of Making a Murderer in support of their entire frame-up defense. At first blush it was fairly compelling.
Sergeant Colborn and Lieutenant Jim Lenk had been deposed just a few weeks before Halbach disappeared, and they had reportedly taken a beating by Avery’s lawyers. Looking back at it, I’m sure they wished they could have stayed away from the investigation.
Upon closer inspection Colborn and Lenk’s connection to Avery’s 1985 wrongful conviction was tenuous at best. They weren’t defendants in the lawsuit because despite all the condemnation from the defense team at trial and in Making a Murderer, their sins were not even sins of omission, which is what Avery’s lawyers were accusing them of and Making a Murderer was condemning them for. It turns out they did exactly what they should have done—as the jurors evidently concluded, and as most Netflix viewers likely would have, if they had been given all the facts.
The defense theory rested upon a telephone call t
hat Colborn received from a Green Bay detective that could have led to Avery’s release in 1995, ten years after Avery was wrongly convicted and eight years before DNA finally did set him free. The detective had called to report that an inmate in the Brown County Jail was claiming that he had assaulted a woman jogging on a beach in Manitowoc County ten years earlier, presumably Penny Beerntsen, the victim in Avery’s wrongful conviction case. The inmate claimed that someone else had been convicted of the assault and was presently serving time in prison for a crime he did not commit. Gregory Allen, the real assailant, must have experienced a rare moment of shame.
Colborn was a corrections officer at the jail at the time, with neither the experience nor the authority to investigate any crime, much less a ten-year-old sexual assault and attempted he’d never heard of, where the court of appeals had already affirmed the defendant’s conviction. On duty he took the call from the Green Bay detective and did exactly what protocol required. He passed the information up the chain of command. The information must have made it to the very top because word came back down from the sheriff telling Colborn to stay out of it—they already had the right guy.
Colborn’s minimal involvement in the wrongful conviction—and the 1995 telephone call from the Green Bay detective was the extent of it—seems an unlikely motive to plant evidence and risk his entire career. Was it possible he was so upset by his recent grilling, at his recent deposition, or had some sort of a visceral reaction against Avery, who was present during most of the depositions? Was it possible that he was so loyal to his department and county that he would risk prosecution for evidence planting and perjury? Sure, but there was no evidence backing that up, and I had promised myself I would not engage in pure speculation on behalf of either side.
And there was another circumstance within the “totality of facts and circumstances” that made it less likely that Colborn had planted the car. While not impossible, it would be difficult to drive Halbach’s RAV4 to where they allegedly hid it on the salvage yard without being seen by a passerby or being noticed by one of the many family members who live there. The property is difficult to access from the rear, which is where the vehicle was found, so it would have to be pushed or driven through the entrance, right past the Avery family homes. It would be difficult to remain undetected, even at night.
The vehicle was hidden in the ideal location for Steven Avery—or I suppose some other culprit in the family or connected to the salvage yard—who would need to hide it before disposing of it later in the “car crusher.” The killer would have to put off that task until no one was around to wonder why he was destroying a relatively new and fair-conditioned vehicle. Also, the vehicle would need to be stripped of any identifying information, such as the VIN plate on the dashboard, possibly the engine, rims/tires, and also drained of all fluids, before being hoisted into the car crusher—all of it making plenty of noise.
* * *
Fairness for the defense required that I not allow my assumptions to cause a knee-jerk reaction. I knew and respected Colborn and Lenk for years, but I could not permit my gut instinct, which said they would never do such a thing, to affect my evaluation of the evidence.
For the prosecution, conversely, fairness forbade me to consider unwarranted speculation and attacks on the officers’ character and motivation if these allegations did not stand up to close scrutiny.
For both sides, going forward, I would not forget what I had learned about the RAV4. If the police planted it, I would not have lost sight of that damning fact. But the evidence suggested they didn’t. What’s more, it appeared the defense team and the documentarians manipulated the facts to suggest they did.
In the end I chalked up round one as a win for the prosecution. But the game—or the journey—had just begun and I had a feeling the next round would be a much closer call.
CHAPTER 9
THE KEY
It was one of the most damning pieces of evidence in Steven Avery’s entire trial. Not literally a smoking gun, the ignition key to Teresa Halbach’s RAV4 was trumpeted as such to the jury by both sides.
But whom did it damn? The accused or his accusers?
Neither side disputed that Halbach drove her RAV4 to the Avery Salvage Yard on Halloween Day, 2005, but their opinions concerning what happened to the RAV4’s ignition key after she arrived sharply diverged.
As the prosecution would have it, Avery tucked it into the back of a small bookcase cabinet in his bedroom after he and Dassey murdered her. It was the perfect place to hide the key until he could later retrieve it, when he had the time and the opportunity to dispose of the car. With the garage door shut and the RAV4 safely hidden from view, the theory went, Avery cleaned up the blood and anything else that might have drawn suspicion, until he could dispose of the final piece of evidence linking him to the murder—the RAV4. If he had succeeded, the volunteer search party would not have discovered the RAV4, and grounds for a search warrant would have been shaky at best. Teresa Halbach’s murder might have never been solved.
Steven Avery had already chosen the method of the vehicle’s demise, went the prosecution’s theory. He would flatten it out in the “car crusher,” which, as I recall from the day I was there, was located almost as far away from his house trailer as one could get. It was about 380 feet away from where Pam Sturm and her daughter found the RAV4. With the ignition key tucked safely in the back of his cabinet, close to his bed, he would bide his time until he had the opportunity to dispose of the car. To the prosecution it all made perfect sense.
The defense cried foul, however. As luck would have it, it was Colborn and Lenk, Making a Murderer’s designated villains, who found the key. It wasn’t just bad luck; it was dumb luck, too. Had it not been for the higher-ups’ well-intended but unwise decision to allow Manitowoc County officers to participate in the search, as long as an officer from another jurisdiction accompanied them, they never would have been in Avery’s residence. And opened themselves up to charges of evidence planting.
With Steven Avery’s thirty-six-million-dollar lawsuit pending against the county and its former sheriff and DA, the sheriff’s department had a clear-cut conflict of interest. In hindsight, it would’ve been better for both Colborn and Lenk if they had not been asked to assist in further searches, once the RAV4 was located at the salvage yard.
To make matters worse, a prior search to collect specific items in Steven Avery’s bedroom had come up empty-handed.
The gift could not have been wrapped any better for the dream team defense of Buting and Strang. They took what in a normal case would have been a compelling piece of evidence for the state and turned it on its head. Based on how Buting described the discovery of the key, it was nearly impossible to believe it had not been planted. Here’s an excerpt from Making a Murderer:
“That key does not fall from . . . you know, in between the backboard and the frame of that little bookcase and find its way underneath a pair of slippers. Yeah, it just does.... You know, things fall straight down, thanks to gravity.”
While permitting Manitowoc County officers to participate in the searches was perhaps not the best decision, it certainly doesn’t prove Colborn and Lenk planted the key. Earlier, I had assumed they had an explanation about how they found it when previous searches came up empty-handed. After all, the jury heard all the evidence—not just the media accounts or what a pair of documentarians a decade later chose to include. They obviously must have accepted the explanation, since there’s no other way to reconcile their verdict of guilt.
I assumed it was just one more in a series of uncanny coincidences in how the investigation unfolded, but it was just that—an assumption. Conflicted out of the Avery case and with my own caseload to keep up with, I knew no more about the Avery case than what the media reported. Now, though, I aimed to find out.
Gearing up for a deep dive into the details surrounding the discovery of the key, I turned to the trial and documentary transcripts, as I did concerning Colborn calling in t
he plates to the RAV4, but also to the video clips in the documentary itself. After three frustrating hours of searching for the relevant portions of the transcripts and tuning into the right episode of Making a Murderer, I waded in with eyes wide open to find out whether the documentary had at least presented both sides.
Aided again by two smart, determined, and detail-oriented Redditors as obsessed with the Avery case as I was, we were able to uncover what the documentarians were up to with regard to the key. The manipulation of Colborn’s testimony regarding calling in the RAV4’s plates could not hold a candle to its distortion of how he and Lenk found the key. It was the mother of all manipulations—at least up to that point in my review of the files. Making a Murderer had once again confounded the truth.
If a picture’s worth a thousand words, then streaming video is worth more than a million. The documentarians took full advantage of their awesome power by showing close-up images of the key sticking out like a sore thumb on the floor of Steven Avery’s bedroom and an empty cabinet after the key had been found and after the cabinet had been moved and emptied of its contents. Inserting these images into the midst of carefully edited testimony of police officers fumbling on the witness stand, trying to explain themselves, it was impossible to conceive how the key could have been missed during previous searches. The documentary effectively convicted Colborn and Lenk of planting the key.
Those who knew no more about the Avery case than what the documentary chose to show them would never know this, but both Colborn and Lenk did have an explanation for how they found the key. Running contrary to the documentarians’ views, their explanations did not make the cut. Netflix viewers may or may not have been satisfied with the explanation, but they should have been given the opportunity to decide for themselves.
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