“The police didn’t kill Teresa Halbach,” Strang said, “they have that in common with Steven Avery, but they wanted to believe he did.” He told the jurors he was going to ask them at the end of the case “to get it right this time.”
Kratz and the rest of the prosecution team started presenting their case the next day. With Tom Fallon from the attorney general’s office and Norm Gahn assisting, he began by laying out a timeline leading up to Halbach’s death, with phone calls and a paper trail detailing her whereabouts on Halloween Day, 2005.
The prosecution presented a steady stream of physical evidence, starting with the human remains found in Barb Janda’s burn barrel and Avery’s fire pit behind his garage. The bone fragments included a skull section that remained intact enough for an expert to determine the deceased had been shot twice in the head—just as Brendan Dassey had said.
Sherry Culhane, still a DNA analyst at the Wisconsin Crime Lab, said the chances were one in a billion that the charred tissue from one of the bone fragments found in the fire pit did not belong to Teresa Halbach. She also tested the bloodstains lifted from Halbach’s car, and they matched Avery’s DNA profile, as did biological evidence left on the vehicle’s key.
Jerry Buting turned the state’s presentation of the physical evidence on its head by suggesting in one blistering cross-examination after another that the evidence was planted. He relentlessly attacked the investigating officers for what he perceived as their lack of caution in following procedure. He questioned how four police officers failed to find a bullet fragment containing Teresa Halbach’s DNA before it was discovered months later in Steven’s garage, terming it the “magic bullet.”
“Did you see a bullet on November sixth?” he asked one of the officers from Calumet County, who immediately replied that he had not.
“Because if you had, you would have collected it, right?” Buting asked rhetorically, “because it would have been an extremely important piece of evidence, right? There were four of you in that garage, and not one of you found a bullet or a bullet fragment.”
“Correct,” the officer replied.
Buting pulled no punches when he challenged how the ignition key from the RAV4 ended up in Avery’s bedroom, all but indicting Colborn and Lenk on the stand for planting them. Kratz tried to soften the blow by suggesting the key wasn’t discovered earlier because the initial searches of the expansive buildings on the property, including Avery’s trailer, were cursory sweeps and not detailed examinations. But to many in the courtroom, the explanation rang hollow.
Kratz also called Calumet County deputy Kucharski, who was in the bedroom with Lenk and Colborn, when the key was found. “Based upon your positioning a couple feet away from that key, did you believe that either Lenk or Colborn had an opportunity, out of your eyesight, to place, or what’s called ‘plant,’ that key there?” Kratz asked.
“No, they did not,” the officer replied.
But Buting beat up on him on cross-examination and the deputy had to retreat: “My actual observations, I would have to say that it could be possible, as in I was doing other things, I was taking photographs, I was searching the nightstand.”
I recalled also the disputed blood evidence—the defense claim that police planted Avery’s blood in Halbach’s car from the blood vial kept in the clerk of courts’ office.
A television reporter interviewed Steven’s father, Allan, outside the courthouse a few days into the trial. “We’re sick and tired of them saying bones were found on Avery’s Auto Salvage,” Allan said. “They found nothing. All they found is somebody put a car there.
“Brendan Dassey is innocent and my son is innocent,” he continued. “If you start from the beginning, they plugged the highway off and kicked us out of our houses for eight days so they could plant evidence. This is not right. We need to give our justice system a good goin’ over.”
Kratz called Bobby Dassey, Brendan’s older brother, the following day. Bobby testified that he saw a girl walking toward his Uncle Steven’s trailer at two forty-five p.m. on Halloween Day. He also said a few days after Teresa Halbach went missing, his uncle jokingly asked him if he wanted to help hide a body, and then he kidded that she probably went to Mexico.
Brendan and Bobby’s brother, Blaine, also testified, telling the jury he saw a huge bonfire burning when he returned from trick-or-treating the night Halbach disappeared. He said he saw someone near the fire, but Blaine claimed he couldn’t remember who it was.
* * *
I remembered going home the night the jury began deliberations confident that they would see through the now-discredited conspiracy theory and swiftly return a guilty verdict the next day, probably in the morning. Now that the prosecution had shown the blood vial defense for what it was, a desperate attempt to shift blame, I couldn’t imagine how they could do otherwise.
Other than the happenstance of Lenk and Colborn finding the key, the defense had presented little of substance. In light of all the rest of the evidence, even that seemed fairly harmless now. For more than a year Buting and Strang had shouted “police conspiracy” to anyone with ears, but now I assumed the jurors had heard enough conjecture and were ready to decide.
I should not have been so confident. The jury resumed at nine the next morning. After several more hours of deliberating without reaching a verdict, they sent Judge Willis a note—the jury wanted a magnifying glass. That’s right, a magnifying glass.
Prosecutors squirm when deliberating jurors make a request or have a question they want answered by the judge because it usually means they’re having serious doubts about the state’s case. Why do they want a magnifying glass? I asked myself. Was it to inspect the photograph of the blood stains in RAV4? Were they buying the defense that the blood was planted and asking for a magnifying glass so they could take a look for themselves?
It was impossible to say, but Judge Willis gathered the parties and brought in the jury. They were not to conduct their own investigation, the judge told them, they were to base their decision on the evidence in the record, and nothing more.
The jury resumed deliberating a few minutes later and retired at six that evening. Still, there was no verdict. They’d sat stone-faced through five weeks of testimony and there was no way of knowing which way they were leaning. It had me on edge. I could only imagine the level of discomfort Kratz and the rest of the prosecution team felt—not to mention the Halbachs.
Not long after the jurors began deliberating the next morning, they sent an even more distressing note to Judge Willis. They wanted to review the testimony from Sherry Culhane—and, worse, they only wanted her cross-examination.
Now I was really worried.
Jerry Buting had established two things during his cross-examination of crime lab analyst Culhane, which I assumed were now on the minds of the jurors. First, Steven Avery’s DNA was not found on the trigger of the rifle that he allegedly used to shoot Teresa Halbach. Second, there was no blood on the rifle’s barrel.
“The victim in this case was shot at close range, wasn’t she?” Buting had asked. “And you would typically find blood spatter on a rifle barrel that was used to shoot someone at close range, wouldn’t you? Yet, when you examined the rifle that my client allegedly used to shoot the victim in this case, you didn’t observe any blood spatter, isn’t that right?”
Buting’s assumptions weren’t valid. A gunshot at close range doesn’t always leave blood spatter, and the absence of the shooter’s DNA on the trigger wasn’t unusual. But thanks to CSI and other popular TV crime shows, jurors often assume there’s always physical evidence left at crime scenes, and now they almost insist on proof by DNA. Sherry Culhane had appropriately qualified her answers, but it didn’t matter. Buting had sown doubt in the minds of some of the jurors.
Judge Willis called in the lawyers again. After some prodding by the judge, the parties agreed that the fairest way to handle the jury’s request was to read all of Culhane’s testimony concerning the rifle, not just
her cross-examination by Buting. So the clerk called in the jury and Judge Willis read the testimony in its entirety out loud. After deliberating a few more hours, the jury retired for the evening.
Two and a half days, and, still, no verdict.
I fell asleep that night thinking about Teresa Halbach’s parents. They’d sat stoically through the entire trial, expressing quiet confidence in the system that they hoped would bring justice to the man who murdered their daughter. No parent of a murdered child expects closure, but a guilty verdict would at least end the drawn-out legal proceedings against Teresa’s killer. I thought how an acquittal would devastate them, how it would add insult to an injury that you’d think could be insulted no further. If anyone could handle such pain, it would be the Halbach family with their unshakable faith, but hadn’t they already suffered enough?
* * *
Just after four-thirty the following afternoon, the bailiff made the announcement. After deliberating for three days, the jury had reached a verdict. The parties and a sizeable crowd assembled. When everyone was in place, the clerk called in the jurors. They filed into the courtroom with their heads down. Not a good sign for Steven Avery, I thought.
“Has the jury reached a verdict?” Judge Willis asked in a calm but firm voice.
“Yes, Your Honor,” the foreperson replied.
“Please hand the verdict forms to the bailiff.”
The bailiff handed over the papers while the courtroom seemed to wait in silence. The judge had previously warned the spectators against outbursts. After carefully, silently reading through the forms, he announced the verdicts.
“‘As to the charge of “Party to the Crime of First-Degree Intentional Homicide” as charged in count one of the Information, we the jury find the defendant, Steven A. Avery, guilty.’”
It was finished. Perhaps as a compromise offered by the jurors most convinced of his guilt to those who were not so sure, the jury found Avery not guilty on the “Mutilating a Corpse” charge. But with the homicide conviction, Avery’s fate was sealed—he would spend the rest of his life behind bars.
CHAPTER 13
BULLETS AND BONES
Newly discovered evidence, especially game-changing evidence like Brendan Dassey’s confession, opens up brand-new avenues for police and prosecutors to explore. An accomplice’s confession corroborated by physical evidence is a gold mine for the state. If even half of what Dassey told police was true, there was very likely physical evidence inside Steven Avery’s residence backing him up—blood, bullets, tissue, and who knows what else. So it wasn’t a surprise that within hours of eliciting Dassey’s confession, a new search warrant was obtained for Avery’s bedroom and his garage.
The search of the garage bore fruit in the form of two bullets—one partially intact and the other fragmented. The first was lodged inside a crack toward the front of the garage, the second found a day later underneath an air compressor in the rear of the garage. A firearms expert later determined that the second bullet was fired from Avery’s gun—and if that wasn’t damning enough for Avery, testing on that same bullet yielded Halbach’s DNA.
Additional scientific testing further corroborated Dassey’s confession that Halbach was shot in the garage. Investigator Gary Steier sprayed luminol liberally on the floor to see if there were signs of blood on the floor where Dassey said Steven Avery shot her in the garage. After closing the garage door and turning off the lights, he observed a faint bluish white glow in the north-east corner of the garage; another larger area contained a light luminescent glow on an area west and north of the garage floor. This second glow aligned with a sketch Dassey made for the police that included his indication of where he and his uncle used Halbach‘s clothes to clean up her blood on the floor before they burned her clothes. Wisconsin crime lab forensic scientist John Ertl was present when luminol testing was conducted initially on November 8, 2005.
“That wasn’t just a spot on the floor,” Ertl testified during Avery’s trial, “it was more of a smear . . . roughly three- to four-foot diameter area and faintly glowing under the luminol.”
That section was the area behind the lawn tractor and the rear of the snowmobile. It reacted to the luminol by glowing faintly, however it did not react when Ertl conducted a more specific test using phenolphthalein.
“Well, there was something that had been spread out in a large area that was reacting, I don’t know what,” Ertl explained to the jury. “Cleaning chemicals dilute blood and would react, but it may not show up with phenolphthalein if it was diluted enough.”
Ertl’s testimony squared with evidence that Avery and Dassey had tried to wipe clean any trace of the murder with bleach. Not only were there bullets in the garage, but one of them was intact enough to confirm it was fired from a Marlin Glenfield Model 60. 22-caliber rifle that had been hanging from a gun rack above Avery’s bed.
A firearms expert testified, “The patterns, the amount of agreement and correlation that I see, and saw, on this bullet, when I compared it to test fires, was enough for me to be able to conclude that it had been fired from this Marlin rifle, and could have been fired in none other.”
* * *
The discovery of two bullets in the garage, one fired by Avery’s rifle, where Dassey said his uncle shot Halbach multiple times, is powerful evidence of guilt in itself, but there was more. One of the bullets contained Halbach’s DNA.
Testing done by crime lab analyst Sherry Culhane matched the biological material on the bullet with Halbach’s DNA. Nothing, though, was ever uneventful in the thirty-year Steven Avery crime saga, and Culhane’s testing of the bullet for DNA was no exception. Culhane’s inadvertent, but nonfatal, error during the testing procedure was played for all its worth in Making a Murderer. The analyst’s own DNA, probably from her saliva, contaminated the control sample, and Buting ripped her apart on the stand. She had made a mistake, but her mistake did not affect the integrity of the results, since it was the control sample, and not the biological material found on the bullet, that was contaminated.
In a justice system where an attorney’s duty is to zealously represent his client, mischaracterizing evidence is rarely an obstacle for the defense. It certainly wasn’t in Jerry Buting’s words at the nightly press conference after Culhane had testified earlier in the day.
“Jerry, let me get this straight,” a reporter asked him. “So you’re saying that Halbach’s DNA may have wound up on this bullet test because the DNA may have already been in a test tube?”
“The DNA . . . is so sensitive that these contamination logs prove that they get contamination from cases that aren’t even in front of ’em,” Buting enthusiastically answered. “Cases that are put away, locked up, done with, lo and behold, all of a sudden, bingo . . . they get someone else’s profile. Where does that come from? They don’t know. Where did her DNA come from in that contaminated control? She doesn’t know.”
“So, in other words, if you don’t know where Culhane’s DNA came from, you might not know where Halbach’s DNA came from?” the reporter questioned.
“That’s right. Remember now, this bullet wasn’t even found in November. This bullet was found under suspicious circumstances, to begin with. So she’s testing it four months after all the other . . . after she does all these other tests. For some reason she still has the evidence from those other tests.”
* * *
The implication Buting wanted the jury and the media to draw was convincingly refuted by Sherry Culhane’s testimony.
“During the extraction procedure I inadvertently introduced my own DNA into the negative control,” she explained.
“Did that have any impact on your interpretation of your results?” the prosecutor asked.
“It did not have any impact as far as the profile from the evidence sample. It’s just the fact that I introduced my own DNA into the manipulation control.”
Asked to explain how a trace amount of her DNA could have made it into the control sample, Culhane said sh
e believed it happened during the extraction procedure when she was explaining something to two new analysts, who were being trained.
“I felt as if I was far enough away from my workbench not to introduce my DNA,” Culhane testified, “but apparently I was incorrect.”
The bottom line is that none of Culhane’s DNA was on the biological material from the bullet—it was only in the control.
Sherry Culhane—along with Colborn, Lenk, and Manitowoc County law enforcement in general—was one more public servant raked over the coals by Buting and Strang. The defense team had an excuse—they were doing it as part of their job. Not so with the creators of Making a Murderer, who through their skilled, but agenda-driven, editing distorted the truth even more than the defense.
It’s all but forgotten now, but in one of the many twists of irony in the Steven Avery crime story, it was Sherry Culhane whose work at the crime lab in 2003 exonerated Steven Avery of the 1985 assault of Penny Beerntsen on the beach. Even more ironic is that in the first Steven Avery trial, Culhane took pains to spell out the limits of what could be gleaned from hair analysis before the advent of DNA testing. Trying to dispel the significance of a hair recovered from Avery’s shirt that was similar to Beerntsen’s, Avery’s attorney asked Culhane whether it was possible to prove identification by hair analysis.
“No,” Culhane candidly replied.
“Is the hair of many people consistent with each other?” the attorney continued.
“Yes.”
“Can you give an opinion as to the probability whether the two hairs are from the same source?”
“No.”
“All you can say is that it’s not impossible that they’re from the same source, isn’t that correct?”
“That’s right.”
It’s not the job of the scientists at the crime lab to win convictions for the state. When Sherry Culhane worked on the Avery case in 1985, she did just what she should have: She used the tools of science available at the time to analyze the physical evidence objectively, and then she testified truthfully about the results. When she told the jury that the hair found on Avery’s shirt was consistent with the hair of the victim, “consistency” meant something less than 90 percent certain. It isn’t surprising that in the years following Avery’s wrongful conviction in 1985, hair examination lost whatever meager standing it previously held in the scientific community. Even before the advent of DNA, most courts throughout the nation ruled it inadmissible.
Indefensible Page 15