Indefensible

by Michael Griesbach

  “It’s my opinion that the bloodstains that were collected from the RAV4 could not have come from the EDTA tube that was provided to us in this case,” LeBeau replied. And with that, Gahn passed his witness to the defense, whose evidence planting claim had taken a major hit.

  * * *

  During his cross-examination of Dr. LeBeau, Jerry Buting demonstrated an impressive knowledge about EDTA testing and its short and not-so-successful use during criminal trials. After a few disarming pleasantries he sparred with the FBI chemist about his expertise in the specific field of EDTA testing and the reliability of his lab’s testing process in the Avery case.

  “Good afternoon, Doctor,” Buting began.

  To which, LeBeau offered an equally curt, “Good afternoon.”

  “I’m sure you’re anxious to get back to Virginia, where it’s not quite so cold.”

  “It would be nice, yes.”

  Then Buting launched into a headlong attack on the prosecution’s expert witness, first on his credentials, then on the hastily developed protocol for his test.

  “You said you authored or coauthored fifteen to twenty articles?”

  “That’s correct.”

  “How many of those articles did not involve drug-facilitated rape?”

  “Seventeen.”

  “And how many of those involved postmortem fluids, analysis of postmortem fluids? Do you know what I’m talking about, from deceased bodies?”

  “Yes, I know what you are talking about,” LeBeau replied calmly but firmly, already aware of what kind of inquisitor he was facing in the courtroom that day.

  Buting’s point was that most of Dr. LeBeau’s publications involved either drug-facilitated sexual assaults, also known as date rape drugs, or postmortem fluids—not EDTA testing.

  “You also give quite a few presentations, just this year alone, out of . . . looks like out of nine times that you have gone around presenting talks this year, six of those involve drug-facilitated sexual assaults, right? Have you ever, in your life, been asked to give a presentation on EDTA interpretation in bloodstains?”

  “No, I have not.”

  “You are not a sought-after presenter on that particular topic, are you?”

  “No, sir, I’m not.”

  “Have you ever before testified, in a court of law, as an expert who is giving opinions about the interpretation of EDTA and bloodstains?”

  “No,” LeBeau answered, which surely raised eyebrows among a few of the jurors.

  Buting moved on to attacking the testing itself, pointing out that the last time the FBI tested for EDTA was in the O.J. Simpson trial two decades earlier. Only two years on the job at the FBI at the time, LeBeau was not involved in the O.J. case, but that didn’t stop Buting.

  “And might the fact that the FBI had not tested for EDTA since the O.J. case be because your lab screwed up in the O.J. Simpson case?”

  “No, we did not screw up, as you say, in the O.J. Simpson case,” LeBeau replied.

  A skilled cross-examiner does not give the witness a chance to elaborate and Jerry Buting is a very skilled cross-examiner.

  LeBeau had explained in his direct examination that his lab at the FBI had agreed to take on the Avery case as part of its responsibility to investigate allegations of public corruption on the federal and state levels. If police officers had planted evidence in this case, it certainly constituted a crime of public corruption.

  But the FBI rarely gets involved in state crime investigations, which opened up another line of questioning for Buting concerning LeBeau’s “public corruption” rationale.

  LeBeau had spoken about the seriousness of public corruption in his direct examination: “If an individual is truly in that political position or in a law enforcement position, and they are doing something illegal that erodes the public’s trust in that agency or that individual, and we would want that, certainly, that individual out of that office or off the street.

  “But additionally,” LeBeau had continued, “if they are being wrongly accused, we want to be involved in that investigation to help set the record straight and hopefully clear their name . . . so again, the trust can be restored.”

  “Okay,” Buting asked, “can you show me anywhere in that request (from the prosecution) where it says our purpose is also to find out if there might be any evidence that there’s a corrupt cop in Manitowoc County?”

  “No, I don’t see anything of that nature,” LeBeau replied, “but I can elaborate if you like.”

  Again, not giving LeBeau a chance to elaborate, Buting charged that the actual reason the feds got involved was to “eliminate the allegation that this vial was used to plant evidence, isn’t that true?”

  “No, sir. If I can elaborate, I will be happy to explain.”

  “You can elaborate later, sir.”

  LeBeau had conceded that given the prosecution’s late request, his lab was “under a time crunch,” as Buting had put it.

  “As a matter of fact,” Buting asked, “no one has ever presented to any jury, anywhere, not just you, no one has ever presented a test for EDTA in bloodstains in a criminal trial before, other than the O.J. Simpson case?”

  To which, LeBeau said he wasn’t aware of one.

  Foreshadowing the position that would be taken by the defense’s own expert witness in a few days, Buting ended by suggesting that “even with this brand-new test you devised,” the prosecution could not prove with absolute certainty that there was no EDTA in the bloodstains.

  “All you can say is that there is none detectable, given your limits of detection, correct?”

  LeBeau believed that his test was “more than adequate,” but again he had to concede that there is necessarily some limit beyond which any testing—including the one he had devised in this case—cannot go beyond.

  * * *

  Regardless of the concession their expert made at the end, the prosecution had struck a major blow to the evidence-planting claim of the defense. The basics of their argument remained intact—the blood in the vial contained EDTA, while his blood in the RAV4 did not. With no other source of his blood available to the police, Steven Avery must have been bleeding inside Teresa Halbach’s car—powerful evidence, indeed.

  No one knows except the jurors themselves, and most of them aren’t talking, but having read Dr. LeBeau’s testimony, I would not be surprised if he swayed some jurors who up to that point might have been sitting on the fence.

  Buting may have done more harm than good for the defense. With my own caseload I was unable to attend the trial, so I didn’t have the chance to observe LeBeau’s demeanor. From the transcripts, however, he seemed to be an ideal expert witness—competent, credible, knowledgeable, fair—and, perhaps most important, able to convert complicated concepts into plain words that a jury can understand.

  Buting’s inquisitorial style might work with some witnesses, but it can backfire with others. It’s one thing to beat up on and demean a nervous, overly officious cop two years on the force, but it’s another to go after a witness with the credentials and intelligence of LeBeau.

  * * *

  Buoyed by LeBeau’s convincing testimony, the prosecution rested its case the next day. They had called over fifty witnesses and moved nearly five hundred exhibits into evidence, and now it was time for the defense to present its case, should they decide. The presumption of innocence stays with an accused throughout the trial unless, and until, the state proves his guilt beyond a reasonable doubt. The burden of proof is upon the state, where it belongs, and the defendant need not put on a case at all. Additionally, jurors are instructed by the court not to consider the number of witnesses each side calls during the trial because it has no bearing upon the defendant’s guilt or innocence.

  Still, typically, the defense puts on a case, and Buting and Strang followed suit in Steven Avery’s trial—though Avery himself chose to exercise his constitutional right not to testify. One of their key witnesses was an expert witness whom they had retaine
d to challenge the EDTA testing conducted by Dr. LeBeau.

  It often happens to jurors; and after reading the defense expert’s testimony in the Avery case, it happened to me. Two hours earlier I was convinced—not 100 percent but close—that LeBeau’s EDTA testing proved that the bloodstains in the RAV4 did not come from the vial. A few hours later, after reading the defense expert’s testimony, I was no longer sure.

  Working in the industry since the 1980s, Janine Arvizu was a laboratory quality auditor in Albuquerque, New Mexico, and it was obvious from her testimony that she was good at her job. As she explained, she did most of her work for the federal government because it is the largest consumer of lab results and makes important decisions based on those results.

  “The people who use lab results—it’s not like buying a pound of sugar or buying a pound of flour,” she explained to the jurors, because the quality of data varies among the labs and they make very important decisions based on the results of the data.

  “It’s a very technically driven job to place quality control practices and measures in to ensure that you consistently and reliably produce good quality data,” she stated.

  “Experience has shown in the measurement in science business, that the best way to ensure the reliability and the validity of the results is to have a very rigorous, quality assurance program in place.”

  She testified that a protocol or a testing method might be acceptable for use in one application but “completely inappropriate” in another. “So it’s really essential to understand exactly the scope of what you are trying to use the results for.”

  Arvizu was not impressed with the FBI’s EDTA testing’s protocol, nor with the operating procedure, nor with Dr. LeBeau’s final report.

  “The fact that EDTA is not detected in a stain does not mean that EDTA was not present in the stain,” she told the jury. The test was fine for screening and detecting EDTA in a bloodstain, but according to Arvizu, it was inadequate to determine its absence.

  “That’s really the problem,” she continued. “The issue with this procedure is not whether or not it’s a valid result. If you were actually detecting EDTA, this is a good method. The problem really occurs when EDTA is not detected in a bloodstain.”

  She was referring to what scientists call a “detection limit”—the lowest concentration of a chemical’s presence a test is able to detect.

  “In the procedure employed in this case, EDTA is readily identified at a concentration of thirteen micrograms per liter. The common term is parts per million,” she explained.

  She told the jurors that the FBI’s claimed detection limit was “theoretical” and did not account for “complicating factors associated with taking a real-world sample and getting it to the point where it’s clean and pristine enough to be able to inject it into an instrument.”

  Among the complicating factors in this case, she said, were “the swabbing of the bloodstain and extracting the sample from that stain and diluting it before you get it into the instrument.”

  “The problem is you just don’t know whether you didn’t detect EDTA because there was none there or because your detection limit wasn’t low enough to see it, even if it had been there. That’s really the problem.”

  She also disagreed with LeBeau’s decision to test only three of the six stains of Avery’s blood found inside Halbach’s car. When asked about this by Buting, she replied that she was “not in the business of just making guesses about what might be in samples. We have instrumentation to test samples and that’s how we determine results.”

  * * *

  Norm Gahn drew a tough assignment as Arvizu’s cross-examiner, because, theoretically, she was right. Even with the advanced stage of our science and technology, we are not yet able to prove the absence of a chemical substance as an absolute certainty like we can with the fact that one and one equals two. A molecule or two could be lurking in the solution and slip under the detection limit and its presence would remain unknown.

  Unable to challenge Arvizu’s bottom-line contention, Gahn was left with trying to chip away at the edges of her testimony. Arvizu was well prepared to meet even minor challenges to her most unessential points, so despite the prosecutor’s best efforts, she left the stand unscathed.

  As with Dr. LeBeau, I did not observe Arvizu’s appearance and demeanor. The physical characteristics of a witness should mean very little, but we base much of our assessment of the witness’s competence and credibility on his or her appearance and demeanor. Did she appear confident? Was her voice pleasant or harsh? Did she wear too much makeup? And so on.

  Still, without observing her, I was not completely confident that Avery’s bloodstains in the RAV4 did not contain EDTA. Either the FBI’s hastily developed test had some legitimate problems, or Arvizu was very good at making it look that way, and there was no way to tell from the transcripts.

  By their guilty verdict the jurors showed which side’s expert they believed, but that was not enough to fulfill the aim of my journey because my own conclusion was that I could not conclude. A new procedure quickly developed by the FBI based upon an earlier test that was heavily criticized since it was last used in the O.J. Simpson trial did not prove conclusively that Steven Avery’s blood in the RAV4 did not contain EDTA. To be fair I had to throw it away.

  On the other hand, the fact that the prosecution could not prove with absolute certainty that the police had not planted Avery’s blood in Halbach’s car did not prove that they did. The defense had presented no evidence, nothing beyond speculation and implied, but unproven, motivation to back up their claim. The same could be said for the RAV4 itself, the key, and, as we shall soon see, a bullet fragment with Halbach’s DNA found in Avery’s garage. The defendant had no obligation to prove his innocence; but using nothing but innuendo to accuse police officers of misconduct—an allegation that, if true, could land them in jail—proved nothing.

  Which officers snuck Avery’s blood out of the clerk of courts’ office and when? Were they the same officers who planted the blood in Halbach’s car, or did they hand it off to some co-conspiring cops? Did they know how to avoid contamination and to dilute the proper amount? You’d think it would take more than a few officers to plant so many items and that one of them would eventually talk, if not to the authorities then to someone in a coffee shop or a bar. Was the code of silence really that strong? And what about the prosecutors—knowing the case backward and forward, you’d think they would figure it out. Or were they in on it, too?

  At no time did the defense answer these questions. Nor—it occurred to me as I readied myself for the next chapter of my journey—did Making a Murderer.

  At the same time the frame-up defense would have gone nowhere if it weren’t for the glaring abuse of power by the former sheriff and the former district attorney. In fact, if it weren’t for the prior officials’ misconduct, Making a Murderer would have never been made, and I would not be spending all my waking hours trying to determine whether or not the jury got it right.

  CHAPTER 12

  A REPRIEVE

  For three weeks I had immersed myself in court records, news articles, online research, and anything else I could get my hands on concerning the Avery case. Overwhelmed by its details, I decided to take a day off to reflect more broadly about the thirty-year Steven Avery crime saga, and not just the slice of it that occurred between 2005 and 2007.

  Until December 2015 or even later, when they either watched for themselves or heard about Making a Murderer, the vast majority of Americans would not have even recognized Steven Avery’s name, much less that he was allegedly the victim of not just one, but two wrongful convictions—an astonishing set of facts when you stop to think about it. Even the main players in the murder case—Dean Strang, Jerry Buting, and Ken Kratz—knew about Avery’s story only in passing until he became a suspect in Teresa Halbach’s murder in early November 2005. I wondered how their perspective differed from mine, especially because the 1985 and 2005 cases were s
o intertwined and I had spent so much time examining the first.

  Did any of them really know what Steven and the Avery family were like—the good points and the bad? Did they understand the nuances of the Manitowoc County Sheriff’s Department and the District Attorney’s Office—its recent history and the complete reshuffling of those at the top? Did they know that both Colborn and Lenk are two of the most honest cops you could find?

  Were they aware of the change in leadership in our office in 2002 that ushered in a new way of thinking about the criminal justice system and concern for those who became caught up in its grasp—victims, of course, but offenders, too? Did they realize how Penny Beerntsen’s assault on the beach in the summer of 1985 and Avery’s wrongful conviction later that year forever changed her life and that of her family? Did the creators of Making a Murderer, especially, have any idea that their widely acclaimed series had wreaked havoc upon a community that had been dealing with the Avery case for thirty years and had finally moved on?

  Most of all, did they know that they were heaping additional suffering upon the Halbach family, who are having to revisit a nightmare that would have never passed completely, but that they, at least, could have used to honor Teresa’s memory and as a sign of their love for her by keeping it more or less to themselves?

  I thought back to the day when my own obsession with the Avery case began. It was in the morning on September 5, 2003 when our office received a phone call from Sherry Culhane, an analyst at the Wisconsin State Crime Lab who had just completed DNA testing on evidence associated with Avery’s 1985 conviction. After suggesting that DA Mark Rohrer and I sit down, she told us the DNA profile from the last shred of evidence in the Avery case that could be tested, a single pubic hair, matched the DNA of a convicted sex offender by the name of Gregory Allen. Allen was a sociopathic sex predator, with a record a mile long, who made Steven Avery look like a Boy Scout in comparison to his own propensity for sexual violence.

  Rohrer and I looked at each other in disbelief. Neither of us had ever heard of Gregory Allen. In fact, we knew very little about the Avery case itself, other than it involved the brutal assault of a prominent local woman along the beach on Lake Michigan. Rohrer was still an undergraduate when Avery was convicted, and by the time my wife and I moved here, Avery had already spent six years in prison. Former DA Jim Fitzgerald hadn’t relayed any of the issues or facts involved in the case when he left office and said nothing about a DNA analysis that might soon prove consequential.