Indefensible

by Michael Griesbach

  Still working at the crime lab eighteen years later, Culhane remained the analyst assigned to this case, and it was she who isolated the DNA on the pubic hair that set Avery free. But this time the odds weren’t one in ten—this time they were 1 in 251 billion, and she made that fact abundantly clear in her report. There is no evidence to suggest that when Avery was accused of murder two years later, she had changed her stripes and willingly joined a conspiracy to distort evidence in a murder trial of a man she had helped to exonerate of an earlier crime. She readily admitted she made a mistake, but then maintained her devotion to objectivity and science by explaining that her error had no effect upon the DNA testing’s results.

  Even if it succeeded, attacking the reliability of crime lab analyst Culhane’s DNA test results would not be enough to blunt the impact of the bullets, because the bullets themselves had to be explained away. The method of doing so took on a number of forms—some offered by the defense in Avery’s trial, some by Making a Murderer, and others by myriad social media sites in its wake devoted to proving that Avery and Dassey were the victims of diabolical police and prosecutorial corruption.

  Dassey had told police that Avery shot Halbach somewhere between five and ten times in the garage, leading some to ask where the rest of the bullets were. A legitimate question to be sure, but one with an obvious answer, since Avery and probably Dassey presumably would have picked up the bullets and could easily have missed the two that police later found.

  The bullet underneath the air compressor and the fragment in the crack would have been difficult to find, as shown by the fact that the police missed them in their previous searches of the garage. It’s also likely that some of the bullets did not exit Halbach’s body, especially the ones Avery shot into her head.

  A more credible challenge is why weren’t the bullets found during prior searches of Avery’s garage? Such damning evidence, how could it have possibly been missed?

  But there was nothing nefarious in the way the bullets were found, at least it didn’t sound that way from the testimony of Kevin Heimerl, the state investigator who found them.

  “I was standing in the garage and I looked down at the floor. In front of me there was a crack in the concrete, and I observed this round, gray object that resembled the head of a roofing nail.”

  Investigator Heimerl explained how and where he found the second bullet fragment the next day:

  “We had been processing this garage, searching this garage. As you look at this photograph, we approached the compressor from its left, and it was a large object,” Heimerl testified. “As we reached this area, I had to get onto my hands and my knees in front of the compressor and utilized a flashlight to look under the compressor.... I found what appeared to be a bullet.”

  Despite the impression left by Making a Murderer, the bullets were not found by Manitowoc County officers—Colborn and Lenk as they did not participate in the search of the garage. Like every other evidence-planting claim raised by the defense, there was no affirmative evidence that the bullets were planted or an explanation of how the police managed to pull it off.

  If considered objectively, it should come as no surprise that the bullets were missed during the earlier searches. Initially the police had little information concerning the exact cause of Teresa Halbach’s death, or where she died. On February 28, they received the crime lab’s findings with respect to charred pieces of her skull, which had been retrieved from the fire pit behind Avery’s garage. Crime lab analyst Kenneth Olson detected traces of lead metal on the “suspected entrance defect” on a piece of the skull—suggesting that she had been shot in the head. Prior to then, the cause of death was unknown.

  On March 1, the day after the crime lab results were delivered, in one of the most controversial scenes captured during Making a Murderer, Dassey told Investigators Mark Wiegert and Thomas Fassbender that Avery shot Halbach with multiple rounds, in the garage. He answered them after they repeatedly and forcefully asked him, “What happened to her head?”

  This scene, a short clip of hours of interrogation footage, resulted in the loudest public outcry by far that Brendan was unfairly treated and coerced until he finally guessed answers that would please the police.

  Without solid physical evidence prior to this, police did not know how or where Halbach was murdered; investigators had no more reason to search the garage than anywhere else in Steven Avery’s home. But now, armed with specific new information and with a precise mission in mind, they spent hours that very day in Avery’s garage, searching for bullets and blood. The two bullets were in locations easily missed—one underneath the air compressor and another lodged in a crack. Bottom line: it’s easy to see how they missed them during the prior searches.

  * * *

  Social media observers have argued that if Steven shot Teresa in the head with a .22 caliber rifle as Brendan says he did, the bullets would not have exited her skull, which is interesting because the same bit of physics might also at least in part explain why only two bullets were found. It’s true that a .22 caliber bullet does not possess the kinetic energy necessary to exit a bone as thick as the skull, but if it passes through soft tissue instead, it will exit the body and sometimes carry the victim’s DNA with it, as one of the bullets in this case did.

  When Brendan Dassey was interrogated—and make no mistake, it was an interrogation in every sense of the word—he was asked to draw a diagram of where Halbach and Avery were in the garage when Avery shot her. When the crime lab analyst conducted the luminol test that evening, the glow appeared in the area where Dassey placed Halbach in the diagram. The bullet found underneath the compressor had apparently exited soft tissue, perhaps her cheek or her shoulder, and not bone.

  As in nearly every other stage of my journey, the more thoroughly I examined the “magic bullet” defense, the more I became convinced that it was nothing but smoke and mirrors.

  * * *

  If the search of the garage after Dassey’s confession was a bonanza for the police, the search of the bedroom was a bust. Despite the horrific scene depicted by Dassey, they came up empty-handed when they searched Steven Avery’s bedroom: not a drop of Halbach’s blood, not a strand of her hair, no biological evidence at all that would match her DNA.

  Its absence understandably makes people wonder. However, as I looked into it further, I found a few explanations that seemed to make sense. Besides, the lack of Halbach’s hair or blood in Avery’s bedroom took nothing away from the bullets that killed her being found in the garage—or, for that matter, the mountain of other evidence that pointed to Avery’s guilt. Two bullets, one confirmed as fired from the defendant’s gun and containing the victim’s DNA, discovered in a location where an accomplice said the defendant shot the victim. Evidence like this would typically make for an open-and-shut case for the state.

  Nevertheless, despite the mountain of additional evidence arrayed against the defendant, the jury was out for three days. To many, Steven Avery’s guilt somehow remained in doubt. His luring of Halbach to the salvage yard, the discovery of her SUV at the edge of the premises with his blood inside and its ignition key in his bedroom, the “other acts” evidence dating back decades and continuing to the night before Halbach was murdered, when he invited his nephew’s girlfriend over for rough sex—in addition to the bullets fired from Avery’s gun in the garage, where Dassey said he shot her—all of this pointed squarely toward Steven Avery’s guilt. I’m not fond of the phrase, but with evidence as compelling as this, if ever there was a “slam-dunk case,” the Steven Avery case should have been it.

  But for one reason and one reason alone it wasn’t—Avery’s wrongful conviction in 1985. Without it, the evidence-planting claim would have been laughed out of court, and Jerry Buting and Dean Strang probably run out of town.

  * * *

  And then there were the bones. Within days after the RAV4 was found, investigators found two “burn sites” on the premises containing some of Teresa Halbach’s charr
ed remains. In a burn barrel in a field behind Steven’s sister Barb’s residence, fragments were found from four different types of human bones. In a burn pit area behind Avery’s garage, they found more bones, including skull fragments and part of a tibia with enough charred tissue to later be identified by DNA testing as Halbach’s. In the same burn pit, they found teeth fragments and metal rivets from her jeans. Later another burn site was found in a nearby quarry, but with the exception of three bones that could potentially be human pelvis bone fragments, the remaining bones discovered there were not human.

  The defense claimed Halbach’s body was burned somewhere else and then planted at the salvage yard—just like the car, the blood, the key, and the bullets. The list was getting long. Clever online commentators later termed it the “traveling bones defense,” and it’s impossible to disprove it completely.

  * * *

  The majority of Teresa Halbach’s bones were found in the burn pit and the grassy area around it twenty yards from Avery’s bedroom window. “I would say that virtually every part of the skeleton, at least a fragment or more of almost every bone below the neck, was recovered in that burn pit,” Dr. Leslie Eisenberg, a forensic anthropologist and the state’s expert on all things bones, explained to the jury.

  She said it was “highly unlikely” that the bones in the burn pit were not burned there. If the bones had been moved to the pit from another location, she stated, she would expect to see breakage due to transport, but she didn’t.

  Cross-examined by Dean Strang, Dr. Eisenberg did, however, concede that the condition of Teresa’s bones—most were crushed into small pieces—could have resulted from being transported, either from the salvage yard to the crime lab by police or, theoretically, by someone who burned them elsewhere and then placed them where they were found.

  The defense expert, Dr. Scott Fairgrieve, who had reviewed the photos and reports concerning the bones, but had not observed them in person, testified it was possible the bones were transported to the salvage yard from some other location. However, based upon his examination, he would go no further than that, testifying that in his professional opinion it could not be concluded with perfect certainty that the remains had not been moved. A tepid response from an expert retained by the defense.

  * * *

  Rodney Pevytoe, with the Arson Bureau at the Wisconsin Department of Justice, on the other hand, investigated the burn pit and was almost certain the charred bone fragments had been burned in the pit behind Avery’s garage and not moved there from another location. He found wiring from what he believed were more than five steel-belted radial tires in the burn pit and some of the bone fragments were “inside the wire, deeply inside of it in some cases . . . to the point where I actually had to, physically, pull apart the wire in order to get in there.”

  He told jurors that Halbach’s bones could not have been thrown on top of the wires afterward and had to have been burned with the tires the way they were found. The soil in the pit appeared consistent with having been exposed to oils from burning tires, he added, and several objects near the fire had evidence of charring and oxidation. He found a rake with wires from steel-belted tires in its teeth and surmised that it was used to stir the fire, as well as a spade shovel and a screwdriver—perhaps to chop up bones as the fire died down.

  Nonscientific evidence also dispelled the defense claim that the bones were planted. Steven’s brother Earl told a Calumet County investigator that on Wednesday night, November 2, just two days after Teresa disappeared, Steven asked Brendan to remove the tire rims and wire out of his burn pit and put them on the large pile of tire rims out in the salvage yard. This struck Earl as unusual because the five or six rims and the wire had already been placed outside the burn area for their nephew to pick up. Brendan did not have to take the rims out of the fire pit; they were already set aside.

  * * *

  It’s all but inevitable that amid their presentation of evidence and occasional squabbles over the law, the lawyers and even the judge involved in a murder trial lose sight of the humanity of the victim. With testimony and photos as gruesome and grisly as those presented in the Avery case, by the end of the trial even jurors are prone to consider the evidence strictly in a clinical sense—forgetting, for example, in this instance that Teresa Halbach was a twenty-five-year-old life-filled, loving daughter and sister and friend of spectators in the courtroom who dearly missed her. This is to be expected since, if and until the proceedings move on to a sentencing hearing, a trial is not about the victim’s life—it’s about whether there is sufficient evidence to determine who took it.

  I suspect, however, that on an occasion or two during the trial—and perhaps on a less-mindful level of consciousness during its entirety—the lawyers, the judge, and certainly the jurors did not forget about the victim and her family at all. The best we can do is to make certain that we honor the spirit and the soul of the victim. Ken Kratz did just that when he addressed the jury during Steven Avery’s trial, and, not surprisingly, so did Dean Strang.

  With Teresa Halbach and her gorgeous smile beaming from the PowerPoint screen, Kratz addressed the jurors in his opening statement.

  “I’m going to introduce you to somebody, this remarkable young woman was twenty-five years of age, she was single, and she was a freelance photographer. She had her own photography business that, although in its infancy, was doing quite well. This woman—and I will remind you several times in this opening and throughout the trial, I will remind you that we’re talking about a real person. We’re talking about somebody’s daughter, somebody’s sister, a lot of people’s friend. Teresa Halbach had her whole life in front of her and the evidence is going to show that on Halloween of 2005, that all ended, that ended in the hands of the defendant, Steven Avery.”

  Given the role they play in a criminal trial, very few defense attorneys could pull this off, but before turning to what he perceived to be the shortcomings of the state’s case, Dean Strang sincerely paid tribute to Teresa Halbach as well:

  “The second thing you are not going to be able to do—I’m quite certain you are not going to be able to do—is bring Teresa Halbach back through that door, or, better yet, back through the door of her mom’s house. We are not going to be able to do that. Convicting a guilty guy, convicting the person who killed her, wouldn’t do it. Convicting someone who didn’t kill her, certainly won’t do it. The life that was before October 31, 2005, never will be lost. It’s etched in Mom’s heart. It’s etched in her brother’s, and her two sisters’ minds, in their memories, in the people they are. That life is not lost. The life that could have been, going forward beginning November 1, 2005, is forever lost, not forgotten, but lost. This is human tragedy, and if you or I understood why people have been killing each other since we crawled out of caves, we would stop it. But somebody killed this woman and that life going forward is lost. You can’t get it back. I can’t get it back. The gentleman at this table can’t get it back.”

  CHAPTER 14

  WHO IS STEVEN AVERY?

  It’s almost universal. Despite their initial idealism, most professionals who work in the criminal justice system develop an edge of cynicism after a while. We see too many repeat offenders, I suppose. So it isn’t surprising that from the moment Steven Avery walked out of prison, the courthouse crowd started taking bets on when he’d be back. They knew what he was like before he had been sent there, and if they didn’t, one of the old-timers filled them in. The cat-burning incident, ramming into the wife of a deputy’s car and accosting her at gunpoint—these and some of his other brushes with the law became part of courthouse lore.

  Avery had another strike against him, too, one not shared by most former offenders trying to stitch their lives back together after serving their time. Because his conviction and sentence had been vacated, when he walked out of prison, he wasn’t on parole. That meant no supervision, no counseling, no weekly meetings with a parole agent to keep tabs on him—no support.

  In
an interview with a Milwaukee Journal Sentinel reporter, he described how he was often depressed and full of frustration and anger.

  “Sometimes it’ll last all day,” he said. “That’s when I try to stay away from everybody. Sometimes I cuss them out, sometimes I just go for a ride—it ain’t nothing to put on a hundred miles.”

  He confided that he cried sometimes because his twin boys didn’t want anything to do with him. “There’s probably too much going on inside my head, brain can’t put it all in,” he told the reporter.

  He complained about the state not providing him with counseling or other help in the transition—“They just let you out the door”—but he also admitted that he would have refused to see a psychiatrist even if one had been offered. “I can’t tell him my problem. I’ll sort it out myself,” he said. “What can he do that I can’t?”

  Avery gave assurances that he didn’t really want to return to prison, but when he reflected about how he used to sit on a picnic bench in the prison yard and count the jets that flew by, his words didn’t sound very convincing: “Sometimes,” he said, “I feel like it’s easier in there. Some days, just put me back there, get it all over with.”

  The joy of freedom faded after a while and Avery’s life took a turn for the worse. While he beat the predictions of the most pessimistic courthouse prognosticators, it wasn’t long before he had a few run-ins with the law. After one particularly serious incident, perhaps Avery should have been “put back in there” for a while. Better yet, maybe he should have been placed on probation with someone to keep an eye on him, with jail or prison hanging over his head.