Indefensible

by Michael Griesbach

  Marlene Kraintz was the prison nurse who withdrew Avery’s blood specimen on January 2, 1996, during his second appeal. She told prosecutors and was prepared to testify that she put the hole in the vial with the syringe while filling the tube with his blood in the ordinary course of her job. Knowing that Kraintz was waiting in the wings, and with no way to rebut her testimony, the defense conceded defeat by not presenting evidence about the hole to the jury.

  But the hole in the stopper was not the only weapon in the arsenal of the defense. What about the blood between the stopper and the vial?

  “You could definitely see that right up to the edge, there was blood around, in between the stopper and the glass,” Buting insisted on Dateline. “The rubber stopper had to be removed from the tube after the blood was put in there, in some way or another, in order for blood to be trapped in there.”

  Dennis Ernst, the man who writes the national standards for blood draws, told Dateline that dried blood between the stopper and the vial is to be expected because the tube is not 100 percent airtight. “It’s not sinister at all. That stopper is not a complete tight fit down at the lower ends of it,” Ernst explained, “so it’s typical and common to see blood gathering around the stopper on the inside of the tube.”

  The evidence tape around the packaging of the vial was also shown prominently in the documentary. Surely, that is a telltale sign of tampering with the vial. Or is it?

  According to the clerk’s minutes in the court record of the 1985 wrongful conviction case, DA E. James Fitzgerald was the last person to open the package. Fitzgerald opened it on June 19, 2002, at twelve twenty-five p.m., pursuant to a court order granting the Wisconsin Innocence Project’s motion for additional DNA testing, and then closed it two minutes later with the vial still inside. The evidence tape had to be cut at that time in order to retrieve other items of evidence: fingernail clippings and hair. According to the prosecution, there was nothing suspicious about the evidence tape being broken.

  Fitzgerald had opened the package in the presence of Avery’s lawyers from the Innocence Project pursuant to the court’s instruction to the parties to try to reach an agreement regarding which items of evidence should be sent to the crime lab for DNA testing. Ironically, the crime lab used this very blood vial, which had become so controversial, in his murder trial five years later.

  It’s possible, and in my opinion likely, that Fitzgerald simply forgot to refasten the evidence tape on the package after removing the vial. But the defense legitimately pointed out that the evidence seal not being reaffixed begs the question of whether it had been opened again. A few drops of Avery’s blood could have been removed in some other way, including by an officer putting a syringe into the already existing hole or by simply removing the cap and failing to reseal the package.

  Still, it was clear that Making a Murderer had badly manipulated the significance of the vial’s condition—neither the hole in the stopper nor the dried blood were signs of tampering. But that still left the broken evidence tape on the package and the possibility that an officer could have accessed the blood by placing a syringe into the already-existing hole or by simply removing the cap.

  I had reached a dead end without knowing for certain whether the police did or did not secrete some of Avery’s blood from the vial. To find out more, I would need to turn to what freed Steven Avery in 2003 and what had apparently convinced the jury to send him back to prison four years later: hard, cold, objective science.

  CHAPTER 11

  EDTA

  When a blood specimen is collected for forensic testing, a tiny amount of a chemical compound called ethylenediaminetetraacetic acid, or EDTA, is added to the vial so that the blood doesn’t degrade over time. Blood in its natural form doesn’t contain EDTA, which means there should not be any—not even a trace—in Steven Avery’s bloodstains found in Teresa Halbach’s car. Unless, of course, his blood was planted from the vial.

  If it could be proven that there was no EDTA in the bloodstains, then Avery must have been “actively bleeding” when he was inside the car, especially because he had a fresh cut on his right finger when the police spoke with him a few days later. Having already dispelled the alleged signs of tampering to the vial—the hole in the rubber stopper and the dried blood between it and the glass tube—I considered the defense theory that the police had planted Avery’s blood as less likely.

  My confidence that Steven Avery had indeed murdered Teresa Halbach was growing by the day. Brendan Dassey’s account of how the two of them murdered her and what his uncle did with her body afterward added weight to this conclusion, since Avery had to drive the vehicle to its eventual resting place and some of his blood was near the ignition switch.

  With this backdrop, proof that Avery’s blood inside the RAV4 was not from the vial would be enough to prove beyond a shadow of any reasonable doubt that he had indeed murdered Halbach, I thought, and probably in the manner recounted by Dassey.

  * * *

  With so much riding on the evidence that Steven Avery’s blood was found in Teresa Halbach’s car, both sides fought tooth and nail in shaping how the issue would be resolved. It was one of the most complicated and consequential legal battles of the entire trial, with the prosecution trying desperately to keep out any mention of the vial to the jury and the defense equally desperate to prevent EDTA testing. The road to get to a final decision was long and complex.

  On January 3, 2007, just six weeks before the start of the trial, the prosecutors filed a “Motion to Exclude Blood Vial; or in the Alternative to Analyze the Vial of Blood.” Arguing that the defense had presented only speculation and no actual evidence that police had planted Avery’s blood in Halbach’s car, the prosecution sought to exclude any mention of the vial. But if the Court disagreed and allowed the blood vial evidence in, then they wanted to test it to prove that while the blood vial contained EDTA, the bloodstains in Halbach’s RAV4 did not. With Milwaukee County assistant DA Norm Gahn handling the motion for the prosecution, the hearing was held the next day.

  As a nationally recognized DNA expert, Gahn said that EDTA testing would either dispel or confirm whether the blood was planted and go a long way toward proving or disproving the defendant’s claim of innocence.

  “Too many allegations have been made against people who are public servants or law enforcement officers,” he added, “and we must have the opportunity to have the vial and do the testing that is suitable to meet the defense.

  “There will have to be assumptions by the jury,” the prosecutor explained, “that some law enforcement officer had access to this vial somehow. This isn’t a case of negligence we’re talking about here. It’s an intentional crime committed by LEOs [referring to law enforcement officers] and possibly along with the clerk of courts.

  “There are so many collateral issues that this evidence lacks probative value and would be a waste of time and confusion for the jury,” Gahn continued. “The state is asking the court to not allow the evidence to come in.”

  Dean Strang handled part of the motion for the defense.

  “The blood vial evidence goes directly to the integrity of some of the most damning evidence against Avery that the state intends to offer,” Strang retorted, “the small amounts of blood that the state will say were found in Teresa’s vehicle.”

  “Mr. Avery has been saying from the beginning to anybody with a microphone and TV camera, initially in early November 2005, that if his blood is in the Toyota RAV4, somebody planted it.”

  The defense had been playing cat and mouse with the vial ever since they became aware of it, at least seven months earlier—most likely because they did not want it tested for fear of not liking the results. It was only six weeks before the start of the trial and they still had not requested permission to admit evidence of their “frame-up” theory—including the vial.

  So the judge ordered the defense to file its frame-up motion by January 12, if they chose to file it at all and reserved ruling on the sta
te’s motion to preclude the blood vial defense or, in the alternative, to test the blood in the RAV4 for EDTA.

  In a bid to put an end to the cat-and-mouse game, he also ordered that if the blood was not tested, neither party would be permitted to make reference to the absence of a test during trial. His order applied to the defense, as well as the prosecution, because nothing had prevented Buting and Strang from requesting that the blood be tested.

  A week later, under seal but on time, the defense filed its “Statement on Planted Blood,” so the court and the parties convened again, on February 2, ten days before the start of the trial. Judge Patrick Willis, giving the conspiracy theory a major but not unexpected shot in the arm, agreed to allow the frame-up defense, including evidence concerning the blood vial.

  Left in the balance was whether the state’s request to permit EDTA testing of the defendant’s blood found inside Teresa Halbach’s car would be approved. Both parties staked out their positions again.

  Referring to Colborn and Lenk, Norm Gahn pleaded with the court to permit the testing: “We have a responsibility to be able to restore their good names. They’ve protected this community and put their lives on the line. They are both good, decent family men. They deserve to have their reputations protected. The best we can do is to allow us the opportunity to test the vial of blood.”

  Gahn also sought to set the record straight concerning why the prosecution team requested permission to conduct EDTA testing only weeks before the start of the trial. “While the defense knew about the blood vial at the very latest in July,” Gahn told the court, “they waited until December sixth to put this on us.”

  “Mr. Gahn is being disingenuous,” Buting shot back, “if he is comparing this in any way to DNA, where you can look at one, look at the other, and say, ‘Yes, there is a match.’ There is no such test.”

  When the wrangling was finished, Judge Willis found it only fair to permit the prosecution to have the blood tested. “If there is probative evidence that can be derived from testing the blood in the vial, I think it’s important to both parties that such evidence be presented to the jury,” he explained, “regardless of which party the evidence supports.”

  Aiming to strike a balance of fairness for both sides, he also ordered that the blood samples be split so that the defense could pursue independent testing if that was their wish—and if they could find another lab to do it. But with the start of the trial only ten days away, the parties would have to move fast.

  * * *

  The significance of Judge Willis’s decision to allow Dr. Marc LeBeau, the Unit Chief from the chemistry lab at the FBI, who developed the protocol for a test to determine the presence or absence of EDTA in blood stains, to testify about his results is hard to overstate. Would another judge have allowed the test and its results into evidence at the trial? Would another jury have discounted the results after an expert witness called by the defense testified that the protocol was not reliable? The likelihood that this particular jury discounted the blood vial defense hardly disproves it.

  There are those who believe that despite its infirmities, the adversarial justice system is the best way to resolve conflicts that in-evetibly arise, especially in a society as complex as ours. Pitting the opposing sides against each other, and letting them fight it out in front of a jury, proponents claim, is the best way to find justice and, theoretically, the truth. Whether it’s the best we can do—for there are other kinds of justice systems in different parts of the world—our system has its downsides.

  One of them is the vagaries of its results. Avery’s trial is a good example. Judge Willis made a difficult decision in the heat of trial to allow the prosecution to use a recently developed protocol by the FBI to determine whether Avery’s bloodstains in Halbach’s car could have come from the vial. And he did so even though the state requested it just five weeks before the start of the trial. In part, he allowed it because the defense attorneys had known about the vial since July 2006 and could have sought testing themselves, but primarily he allowed it because it offered perhaps the best chance to find the truth.

  If one hundred judges were presented with the same dilemma, some would allow the prosecution to proceed with the EDTA testing, and some would not. In fact, if you asked the same judges on a different day—perhaps when they were distracted by a difficult matter at home or their favorite sports team had blown a big lead the night before—some of them might have come to opposite conclusions themselves. Judges are human, and justice is not perfect.

  To some extent, juries are crapshoots as well—though in my experience they usually get it right. If one hundred different juries were presented with the exact same evidence heard by the jury in Avery’s case, their verdicts would undoubtedly not be the same.

  All of which is to say that I had more work ahead of me. The jury’s guilty verdict, after all, is not proof that Steven Avery murdered Teresa Halbach. It means only that the twelve people chosen to determine his fate found beyond a reasonable doubt that he was the killer, and only after the judge, who happened to be on intake when the complaint was filed, permitted them to hear the results of a newly developed test conducted by the FBI.

  I began by reading approximately five hundred pages of the trial transcript that dealt with the EDTA testing conducted by LeBeau, not to mention exhibit documents, to judge for myself the best I could whether the procedure for blood stain testing was legitimate and sound. In the process I learned much more than I’d ever hoped about EDTA, and what follows is what I found.

  * * *

  With the legal battle over the admission of the EDTA testing resolved only a month earlier, Norm Gahn called Dr. LeBeau to the stand on March 5. With Judge Willis, as is his habit, giving them an occasional break to stand up and stretch, the jurors listened attentively to LeBeau—as they did several days later to the testimony of the defense expert, Janine Arvizu, who challenged the method of detection in the FBI EDTA results.

  LeBeau told the jury he is the unit chief of the Chemistry Unit at the FBI Laboratory in Quantico, Virginia. As the unit chief, he oversees day-to-day operations—including making decisions about the types of cases the unit accepts for analysis, assigning cases to the most appropriate personnel, and reviewing the results of final reports to make sure they meet the quality requirements of the Quality Assurance Department at the lab.

  LeBeau testified that he has a Ph.D. in toxicology from the University of Maryland and four years of postdoctoral work at St. Louis University. He serves on the Board of Directors of the Society of Forensic Toxicologists, and is a member of the International Association of Forensic Toxicologists and the American Academy of Forensic Sciences. He has authored or coauthored fifteen to twenty peer-reviewed journal, professional, and scientific articles that are published in professional publications and is a frequent presenter at workshops and conferences.

  Not only did LeBeau have impeccable credentials as an expert in his field, he also used nontechnical terms to explain matters of science and technology to jurors in a non-condescending and ordinary way. He was a trial lawyer’s dream for an expert witness.

  LeBeau explained to the jurors that he supervised every process of this particular case—the method development, the receipt of the evidence, the decisions that were made on which items were to be analyzed, when it was analyzed, and how it was analyzed.

  “I took the results and compiled them,” he told the jury, “formed an opinion as to what they meant, wrote the report myself, issued the report after it had been reviewed by an independent scientist that works within my unit, and, of course, came here today to testify.”

  He explained that EDTA is a chelating agent—a chemical that latches onto metals in their environment and removes them from that environment. It’s found in many commercial products, such as shampoo, laundry detergent, fertilizers, and sodas, just to name a few.

  Most blood vials, LeBeau stated, have some form of a preservative anticoagulant like EDTA to allow this blood to be s
tored for some time so it’s still usable in the laboratory.

  He told the jury that with the sensitivity of the method they devised for this case, they were able to detect a concentration of the EDTA as low as thirteen parts per million.

  “And did you receive samples to test in this case?” prosecutor Norm Gahn asked.

  “We received a number of swabs that were reported to us as having been taken from bloodstains out of a Toyota RAV4, as well as control swabs that were collected in the areas near where those bloodstains were,” LeBeau answered. “And we also received a tube of blood in a purple-stoppered tube, an EDTA tube, which was collected from Mr. Steven Avery.”

  The specific bloodstains tested were the ones taken from the dashboard, the rear passenger door, and a CD case on the front passenger seat.

  After LeBeau explained the testing process, Prosecutor Gahn asked if he tested the bloodstains for the presence of EDTA and, if so, what were the results.

  “Yes, I did, or we did,” LeBeau replied. “We were not able to identify any presence, whatsoever, of EDTA or the EDTA iron complex on the controlled swabs, any of the controlled swabs from the RAV4,” the FBI chemist confidently replied.

  On the other hand, “The purple-stoppered tube from the clerk of courts office that was reported to have come from Steven Avery,” Dr. LeBeau answered, “did indeed contain significant amounts of EDTA.”

  Bringing the point home, Gahn asked, “Based upon your training and experience, and based upon your test results using the LC/MS/MS technique, and based upon all the data that you reviewed and all the compilations that were done in this case, do you have an opinion, to a reasonable degree of scientific certainty, whether the bloodstains from Teresa Halbach’s RAV4 that you tested came from the vial of blood of Steven Avery that was in the Manitowoc County Clerk of Courts Office?”