Here is Colborn’s unedited testimony concerning the key at Avery’s trial to help you decide.
DA Kratz (K.): In performing that search, Sergeant Colborn, did you move or manipulate this piece of furniture at all?
Colborn (C.): Yes, sir.
K.: Can you describe that for the jury, please?
C.: As I stated before, we were looking for specific printed [materials] or photographs. There is a narrow area between this cabinet and this desk, right there. And in order to make sure that there was no evidence or anything else that we needed lodged between there, I actually tipped this to the side and twisted it away from the wall.
K.: If you can describe that further, I don’t know if you can do it with your words, or show us with your hands, how you did it?
C.: I will be the first to admit, I wasn’t any too gentle, as we were, you know, getting exasperated. I handled it rather roughly, twisting it, shaking it, pulling it.
K.: And that’s the cabinet that you are talking about?
C.: Yes, this piece of furniture right here, a cabinet.
K.: I’m sorry. Sergeant, in shaking and twisting that particular cabinet, did you pull it away from the wall itself that you can see behind there? C.: Yes, I did.
K.: After that process was complete, were the items—The binder that we can see in the lower left-hand corner of the cabinet; can you point to that, please? Was that, and the other items within that cabinet, removed and examined by yourself and your . . . other members of your team?
C.: Yes, sir.
K.: Did you have occasion to replace those items into that cabinet after having pulled it from the wall?
C.: Yes, sir.
K.: What was done with the cabinet after that thorough search of the . . . of those materials was completed?
C.: The items that we didn’t use or collect as evidence—that binder and some of the other things there were kind of stuffed, rather forcefully, back in there. And other items that we were going to collect as evidence were—we had so many that we didn’t have a container in the room large enough to hold them all. So Lieutenant Lenk exited the bedroom to get a larger container and I began to search this desk here.
K.: By a “larger container,” what are you talking about?
C.: A box.
K.: Now, at this time, that is, as the search was completed, what was done with that piece of furniture; what was done with the cabinet itself?
C.: It was still kind of away from the wall, but it was more or less stuffed back into its original position.
K.: Now, other than the bedroom slippers being pushed to the side, had anything else changed, other than the pulling out and the twisting and the jostling of the cabinet?
C.: As we looked at the cabinet, it appeared that in the process of us stuffing everything back into the cabinet, we had separated the back of the cabinet, the small piece of paneling that would be the back of the cabinet, from the frame of the cabinet itself.
K.: Let me stop you there. Did you have occasion, then, to go look at the back of this piece of furniture, the back of the cabinet, after this key was processed?
C.: Yes.
K.: I know I’m jumping ahead just a little bit, but could you describe what you saw; could you describe the back panel of the cabinet?
C.: It would be made out of a . . . I’m trying to think of the right word, like a piece of wood, the same thickness maybe as a piece of paneling that one would put on a wall. You know, it’s a thin piece of wood, it’s not—it’s not like it’s a quarter-inch piece of plywood nailed to the back of the cabinet. It’s a thin piece of wood. The piece of furniture itself is old and not in the best state of repair. And I believe it was just very small, short brads or nails that held the piece of paneling or the piece of wood to the back of the cabinet. And I’m sure that when we were putting things in, we exercised more than enough force to push it away. And there was a gap now between the back of the—the piece of paneling on the back of the cabinet and the frame of the cabinet itself.
Colborn is then cross-examined by Strang:
Attorney Strang (S.): Now, that thorough search, had you been working on the cabinet and on the desk?
C.: Yes, sir.
S.: You described yourself as being, I think you said, “none too gentle”?
C.: That’s true.
S.: With the cabinet. And explained, “I wasn’t any too gentle, as we were getting exasperated”?
C.: Yes, sir.
S.: What was exasperating you about the cabinet, or that bedroom, on November 8, 2005?
C.: The content of the material that we were collecting.
S.: So you felt exasperated and that caused you to take it out on the cabinet?
C.: Didn’t exactly take it out on the cabinet. It just caused us to not be gentle in the handling of the material.
While Colborn and Lenk’s explanation of how they found the key did not make the cut for Making a Murderer, carefully selected portions of Calumet County deputy Daniel Kucharski’s testimony did.
Per the decision to permit Manitowoc County officers to participate in the search, as long as they were teamed up with an officer from another jurisdiction, Kucharski was assigned to accompany Colborn and Lenk on the day the key was found. With extensive editing—at times even interposing words and phrases from different points in Kucharski’s testimony—along with misleading images of the key and the cabinet taken on different days and at a different time than when the key was found, the documentarians beautifully set up the police conspiracy theory. And, of course, they left out Calumet County deputy Kucharski’s explanation of how the key was found. The documentarians may think the explanation is bunk, but viewers and readers should have all the facts in order to decide. Here, then, is Kucharski’s response from the witness stand when asked how the key came to be found.
“We were searching the cabinet. Lieutenant Lenk and Sergeant Colborn were searching the cabinet next to the desk. They were pulling books in and out of the cabinet, photographs in and out of the cabinet. They were moving the cabinet, eventually putting the books and photographs and things back into the cabinet, banging things around, moving it. We believe it either fell out of the cabinet or from some place hidden inside the cabinet or underneath the cabinet, or in back of the cabinet.”
With the key a major part of both sides’ case, I wanted to learn as much as possible from the most reliable source. Calumet County deputy Kucharski seemed like an obvious choice. Not accused of being part of the Manitowoc frame-up, and in the room with Colborn and Lenk when the key was found, if anyone should be able to shed some light, it was Kucharski. Police reports are more thorough than court testimony, so that’s where I turned.
On November 8, the day the key was found, the search team of Kucharski, Lenk, and Colborn were given specific and detailed instructions about what they were to look for. Kucharski’s reports indicated: [They were to] collect the HP computer in living room, any computer related storage devices, all pornographic material, and a swab of DNA testing of suspected blood in the bathroom.
All three officers were together in the relatively small bedroom and in visual and verbal contact at all times while searching the bedroom, the report continued. Kucharski photographed and collected pornographic material found in the bedroom along with misc. ammunition, a cloth rope and a pillow with a red stain on it.
I was surprised to learn how close Kucharski was to Colborn and Lenk when the key was found: Sgt. Colborn was approximately two to three feet away from me finishing up the search of a desk area, and Lt. Lenk was approximately one foot from me finishing up the search of a cabinet located next to the desk.
Given the significance of the key and how it was found, here is Deputy Kucharski’s unedited recounting of how the key was found:
LENK had gone through the cabinet and then he and COLBORN moved the cabinet around looking for pictures stuck in the back of the cabinet. I was in visual contact when they were doing this as they were only a couple of fee
t from me. Sgt. COLBORN began to put the books that were taken out of the cabinet back into it. He was having some resistance against the books, they were caught on something, and he pushed on the books banging them into the back of the cabinet. Lt. LENK left the room to call the command post for some boxes for the pornographic materials that we had found. Sgt. COLBORN went back to searching through the magazines under the desk area. I was completing the search of the nightstand. After approximately two minutes, Lt. LENK came back to the room. He entered the doorway of the room approximately one foot away from me, pointed to the floor and said, “There’s a key here.” He pointed to the floor next to the cabinet by a pair of men’s slippers.
It was strike two against Making a Murderer. The documentarians had done a masterful job. By repeatedly showing video clips of the key in plain view on the floor, with books inside the cabinet and items on top, and by carefully editing testimony from Deputy Kucharski and altogether omitting the details from Colborn and Lenk, they convinced Netflix viewers worldwide—beyond a shadow of a doubt—that Colborn and Lenk had planted the key.
Granted, had they included Colborn and Lenk’s explanation of how they happened upon the key, viewers’ opinions of their account’s credibility would be split and, like every other issue in the Avery case, hotly contested. By choosing to hide the explanation of the police because it ran counter to their chosen agenda, the documentarians denied viewers the opportunity to decide for themselves. By skillful editing and their expert use of video and sound, they made the decision for everyone else, and not for the first time in the upcoming weeks did the word “censorship” come to my mind.
I had promised myself I would not let my favorable impression of Colborn and Lenk affect my evaluation of whether they were telling the truth. After all, I could imagine without justifying it for a minute that convinced of Steven Avery’s guilt, but concerned there was not enough evidence to convict him, Colborn and/or Lenk could have planted the key to strengthen the case. Short of being in the room when they found the key, I realize it’s impossible to know with 100 percent certainty. My opinion is just that—an opinion. But at least it’s based upon the “totality of the facts and circumstances,” as encouraged by the law—not just the ones pushed by the defense and fed to me by Making a Murderer.
CHAPTER 10
THE BLOOD
In one of the most dramatic turns of events since Teresa Halbach went missing, topped only by Ken Kratz’s press conference where he recounted Brendan Dassey’s confession in unnecessary and horrific detail, Jerome Buting proclaimed a “red-letter day” for the defense.
The defense had requested to examine the court file from Steven Avery’s 1985 wrongful conviction case. It was the same file—actually a box full of court records and exhibits—the deputy clerk had found during Avery’s appeal ten years earlier. Buting walked into the clerk’s office at the appointed time and saw the box just sitting there, unattended, behind the counter.
Buting had stumbled upon an explanation for how Avery’s blood found its way into Halbach’s car—it was from the vial! The defense needed to tie the sheriff’s department to the vial, but it helped if the alleged conspirators had conspired previously. The courthouse bailiffs were sheriff’s department deputies with keys to the clerk’s office and therefore access to the vial. They, or one or more of their colleagues, must have gone into the clerk’s office after hours, opened the package of evidence from the 1985 file, and secreted some of Avery’s blood from the vial. Local reaction to the blood vial defense varied with opinions largely depending upon the opinion holder’s preconceived notions with regard to the police.
Half a block from the courthouse, right downtown, Warrens Restaurant has been the pulse of the community in Manitowoc for almost fifty years. It’s one of those greasy spoons that grace most every American small town. With bottomless cups of coffee and a menu of breakfast items that are more than just passable, it’s an early-morning gathering spot for local attorneys and anyone else who enjoys shooting the bull. Local, state, national, or beyond—there is no problem too large or too small for the folks at Warrens to solve. Mostly, though, it’s a place of friendship and fellowship, where like at Cheers, everyone knows your name.
As a morning person and a hopeless coffee addict, I’m a semi-regular at Warrens, stopping in a few mornings every week. It opens at six and I like to get there around six-thirty to join the earliest of the early-morning crowd.
The Avery case was the chief topic of discussion at Warrens from the day Teresa Halbach disappeared until the end of the trials. From Mike the window washer to the county executive, everyone at Warrens had an opinion about the case, and given what I do for a living, they inevitably asked me about mine.
Opinions for the most part did not evolve. Some thought from the start that Steven Avery was guilty as sin, that the conspiracy theory was nothing but a pack of lies spewed out by a couple high-priced, out of-town attorneys. Their opinions didn’t change when Lenk and Colborn found the key; it was just more conspiracy-theory nonsense as far as they were concerned.
Take Joe, for instance, whose nephew was a sergeant at the sheriff’s department. Each time I’d walk by, he’d sarcastically shake an imaginary blood vial. Then he’d ask if I’d been out at the salvage yard lately, helping the cops plant some more of Avery’s blood, just to make sure.
Tammy, on the other hand, bought the defense wholeheartedly. Of course the cops set up Avery, Tammy explained; that department is corrupt from top to bottom. Just last month they nailed her teenage son for writing another forged check. And this time he didn’t even do it and took the plea bargain only to avoid going to jail. She was 100 percent certain that the conspiracy theory was true.
My own reaction was one of astonishment and concern. The defense team’s stumbling upon the blood vial could tip the balance in favor of an acquittal. It was bad enough that Colborn and Lenk were the ones to find the key. But now, with the sensational blood vial defense, there was a legitimate chance that the perpetrator of one of Wisconsin’s most horrific murders since Jeffrey Dahmer could go free.
* * *
Ten years later, in a scene of magnificent suspense, Making a Murderer showed the lawyers in the clerk’s office huddled around the vial as though it held, if not the secret mystery of how the universe was formed, then at least the answer to whether the police had set up Steven Avery again. Unbound by the rules of evidence, much less the duty of presenting both sides, Making a Murderer persuaded Netflix viewers worldwide into believing that the Manitowoc County Sheriff’s Department had done it again. For the first time in history, an innocent man was wrongly convicted twice.
Viewers were treated to several close-up shots of the blood vial with a tiny, but distinct, hole on the rubber stopper on its top, similar to what would be left from a syringe. When considered in light of several other scenes supportive of the defense’s blood-planting claim, it was for many viewers powerful evidence that the police had secreted some of Avery’s blood from the vial and planted it in Halbach’s RAV4. Not having previously heard about the hole in the vial, the imagery was so persuasive that it even left me perplexed for a while.
In exploring the blood vial defense, my first thought was: What’s with the hole on top of the vial? I don’t remember hearing about that. And with good reason I found out, because neither side paid much attention to it during the trial.
Twenty minutes of online research was all it took. There was nothing unusual about the hole on the stopper of the vial. What would be unusual, instead, would be its absence, because that’s how blood gets into a vial. It was a red herring—a misleading piece of filmmaking if ever there was one, using an argument so outlandish that not even Avery’s attorneys made much of it during the trial.
Asked on Dateline a month after Making a Murderer aired if the hole in the stopper should have been there, Dennis Ernst, the director at the Center for Phlebotomy Education in Corydon, Indiana, and chair of the committee that writes the standards on dr
awing blood samples, replied, “Well, it had better be there. There’s always a telltale puncture mark in the tubes that are properly filled, so the presence of a hole means absolutely nothing.”
Ernst had told OnMilwaukee magazine reporter Jessica McBride a few weeks earlier that there are two different methods by which blood vials are filled. In one, the nurse draws the blood with a syringe and then sticks the syringe into the rubber stopper top of the vial to insert the collected blood into the tube of the vial. The other method uses a “tube holder adapter,” a device with needles on both sides. One needle goes into the person whose blood is being drawn and the other goes into the tube stopper to insert the person’s blood into the vial. Ernst elaborated that in either method, “If it’s properly filled, that stopper will always have a pierced marking.”
It’s hard to imagine that by then Jerry Buting was not aware of the insignificance of the hole, but he was still peddling the theory during his interview in the Dateline episode a month after the documentary aired. “And get this,” he said to the host, “right in the center of the top of the tube is a little tiny hole, just about the size of a hypodermic needle.” I’d put my money on the chair of the national committee that writes the industry standards rather than Jerry Buting.
Given the play afforded to the presence of the hole in the documentary, complete with a dramatic scene of the apparently astonished attorneys huddling around the vial in the clerk of courts’ office, Netflix viewers might be surprised to learn that Buting and Strang presented no evidence concerning the hole during the trial. They knew it would be folly, because in an excellent bit of proactive lawyering, the prosecution had subpoened the nurse who had collected Avery’s blood specimen and injected it into the vial.
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