Indefensible

by Michael Griesbach

  The caseworker believed that Avery was in need of serious help but pointed out that he wasn’t willing to assist in his rehabilitation.

  Mr. Avery is an individual who has significant needs, and perhaps of most concern to me is that fact that he is not involved in any programming as a result of his own choice.

  Programs that would provide him with insights into parenting skills; hopefully tools to deal with the type of anger flashes that flare up in a [sic] domestic violence; anger management programs; sexual treatment; sexual behavior programs. They are all available as well as academic programming, in the institution.

  Avery’s risk factors multiplied when he got out. No longer residing under the structure of a carefully regimented prison system where behavior is strictly monitored and opportunities to offend are minimized, he faced a whole new set of challenges upon his release. Not least among them was his choice of where to live. His decision to move into an ice shanty when winter arrived is a case in point. After living eighteen years in an eight-by-twelve prison cell, perhaps he felt the need for confinement. Its close quarters made it feel just like home: “I wanted somethin’ small,” he told a reporter, “everything was, I don’t know, just too big. It didn’t feel right.”

  * * *

  Continuing to explore what may have motivated Avery to commit such a heinous crime, I moved forward to the last time he made an appointment with Teresa prior to the day she disappeared. What was he thinking with regard to Halbach when she snapped a picture of a Grand Prix that he was selling just weeks before she died?

  It had been less than two months since his fiancée, Jodi, who later informed police that they were accustomed to having sex every day, and sometimes multiple times per day, was incarcerated. On his desk Avery had copies of a picture of his erect penis, along with a note (back to patio door) and another with Teresa Halbach’s personal cell phone number. He came out to do business with her while he was dressed “just in a towel,” which concerned her enough to at least mention it to a coworker shortly after it occurred. Driven perhaps by the same kind of madness that led to his drawing of a torture chamber in prison and comments he made to other inmates, he bought handcuffs and leg irons the day before her visit, just a short time before she was murdered. Jodi would not be released from jail for months, and Barb Janda told police she didn’t think the handcuffs and leg irons were intended for Jodi—begging the question, then whom were they for?

  Fast-forward to the night before Halbach disappeared. Avery called his nephew’s ex-girlfriend and invited her over so they could “have some fun,” suggesting that they could have sex and “have the bed hit the wall real hard.” Presumably, he was referring to the same bed upon which he tortured, raped, and murdered Teresa Halbach less than twenty-four hours later. If this isn’t proof of motive and intent, I don’t know what is.

  The next morning, at eight-twelve a.m., Avery concealed his identity when he called Auto Trader magazine and asked for “the same girl they sent last time.” The receptionist wasn’t sure if the caller was a male or a female, as the voice was too hard to understand. He left a name with an ambiguous gender, “B. Janda,” and gave Barb’s telephone number instead of his own, even though he was the one planning to meet the photographer.

  Why didn’t he call Halbach directly, as he had done on the prior occasion when he called her for a hustle shot? He obviously had her phone number. Why go through the Auto Trader receptionist unless he didn’t want Halbach, who he’d upset on the previous appointment, to know he was calling?

  After I considered all these facts, it seemed clear to me that the overriding motive behind Avery’s actions was to act upon his perverse satisfaction from engaging in physical violence and unwanted sexual aggression, without a whit of remorse or concern for the harm he inflicted upon his victims.

  Would Avery have been capable of committing such a horrific murder if he not spent eighteen angry years in prison after suffering his own injustice at the hands of the former sheriff and district attorney? Would his heart and soul have been sufficiently depraved?

  It’s impossible to know. His wrongful conviction certainly didn’t help, but given the violent and sexually deviant conduct he engaged in from his young adulthood to the very night before he murdered Teresa Halbach as set forth in the state’s “other acts” motion, it’s hard to conclude with any level of confidence that he wouldn’t. His sexual deviancy knew no bounds and never lay dormant, not even in prison, where he told fellow inmates of his violent plans regarding women when he was released.

  On March 9, 2006, police interviewed a former cellmate of Steven Avery. He was no longer incarcerated and therefore had no expectation of a reduced sentence if he provided information. Ex-con Ronald Rieckhoff spoke with Investigator Gary Steier from Calumet County in a telephone interview that was summarized as follows:

  RIECKHOFF indicated he had seen the news in which inmates had been telling the police that AVERY had shown them a torture chamber on a piece of paper. RIECKHOFF indicated he was in prison with STEVEN AVERY in STANLEY PRISON in the Wausau area and had spoken to STEVEN approximately 20 times. RIECKHOFF indicated he was in Unit 3 and AVERY was in Unit 2, but he would talk to STEVEN AVERY in the recreation field and in the prison library. RIECKHOFF indicated STEVEN hated all women and would resort to the saying about women, find them, feel them, fuck them, forget them.

  At approximately 3:30 p.m., I (Inv. STEIER) again had telephonic contact with RONALD RIECKHOFF. RONALD stated he had been in prison with STEVEN AVERY since 2001 and had spoken with STEVEN approximately 20 times while he was in prison. RIECKHOFF stated he was a paralegal and from time to time AVERY would ask him questions. RIECKHOFF stated STEVEN AVERY had told him he wanted to kill that young bitch that had set him up for the rape when he got out. RIECKHOFF again stated he would talk to STEVEN AVERY in the recreation field or in the prison library. RIECKHOFF again indicated in RIECKHOFF’s words, he hated all bitches, he hated all women. RIECKHOFF again reiterated STEVEN’s comment to him, I’ll find them, feel them, fuck them, forget them.

  Years later, long after Avery was convicted of Halbach’s murder, Jodi Stachowski’s words to Nancy Grace concerning Avery’s attitude toward women revealed that he was true to his word after his release: “We all owed him,” Jodi explained, “and he could do whatever he wanted.”

  Unlike intent, the prosecution need not prove motive at trial. But if motive can be divined, as it can in the Avery case, it adds context and meaning to the crime. My journey into Avery’s mind had done just that, though I was glad to leave it behind. His obsession with aggressive and violent sex doesn’t prove he raped Halbach, any more than his fascination with fire and history of threatening to burn people and burning a live animal prove that he burned her body. It does, however, provide context and meaning and shows what was likely on his mind that afternoon as he awaited Halbach’s arrival. Nothing comes within a thousand miles of excusing his crime, but it had proven worthwhile to explore what was going on in his mind—if for nothing else than to dispel or confirm my increasingly solid belief that he murdered her.

  * * *

  It wasn’t only Avery’s motive I had to explore. Out of fairness to the defense and to Making a Murderer, and for my own peace of mind, I also had to consider the motives of Colborn, Lenk, and the sheriff’s department as a whole. What drove their conduct while they investigated the crime? Was there any evidence that they were driven by a desire to frame Avery for Halbach’s murder?

  Who could forget the moment in Making a Murderer when the camera zoomed in on a group of lawyers huddled around a blood vial with a puncture the size of a hypodermic needle in the rubber stopper on its top? It was the cornerstone, the lynchpin for the defense, and its powerful imagery was skillfully put to use by the documentarians in subsequent episodes when it was suggested that police had planted other evidence as well. The image of the key to Halbach’s SUV lying on the floor in Avery’s bedroom had a similar effect.

  Exposed to this convinc
ing but disingenuous clip of video, viewers were like putty in the hands of the documentarians. Avery’s blood in Halbach’s vehicle? Planted. The SUV’s ignition key found by Colborn and Lenk in Avery’s bedroom? Planted. The bullets in Avery’s garage? Planted. Halbach’s bones, including portions of her skull, found in the burn pit in Avery’s backyard? Planted again.

  Once you accept as fact that the police planted the evidence, it’s easy to conjure up the motive that drove them to do so—or as the defense and Making a Murderer suggested, several. Revenge, anger, an effort to avoid embarrassment or financial ruin because of Avery’s wrongful conviction lawsuit. Each of these separate but related motives were at work in the actions of the police, at least as the defense and Making a Murderer would have it.

  Given the close-knit nature of law enforcement agencies, where little remains a secret for long, if Colborn and Lenk were trying to frame Avery, others in the department would presumably be aware of it too. So I would need to consider their possible motivation too. What would make these individual police officers and the department as a whole so hell-bent on framing Steven Avery? What did they have to gain, and why would they risk getting caught? It had been ten years and counting since the alleged frame-up occurred. The case had been in the sights of conspiracy theorists worldwide since December 2015, and at the mercy of tireless, self-styled vigilante justice groups, threatening to blow the lid off the conspiracy. Yet there was still no evidence of a cover-up. Could even the police code of silence keep something this big under the lid for this long?

  Rather than assuming that the lack of evidence that the cops were dirty meant they weren’t, I dug into the facts and circumstances surrounding the evidence-planting claims.

  The first thing I discovered was that this was no easy conspiracy to pull off. For it to work, somebody else had to have murdered Teresa Halbach. The defense made it abundantly clear they were not suggesting the police had anything to do with her death. “In this, the police had something in common with Steven” was how Dean Strang put it in his opening statement.

  If the killer was someone other than the police, how did he know evidence pointing to the real killer would not arise, like his own DNA in the RAV4? What if someone saw suspicious activity and called it in? How did the police know the real killer would not get liquored up and brag to his buddies that he killed Halbach? Or that his wife, tired of being abused and with the hope that he would be put away for a long time, would not call the police and tell them what he had confided to her in a momentary lapse of judgment when a few honest words came out of his mouth?

  Careers were at stake; and in many instances, including those of Colborn and Lenk, these were long, distinguished careers, with retirement not far off on the horizon. Would smart, accomplished, and well-respected officers like Colborn and Lenk risk all that? If they were found guilty of planting any evidence—their DNA in the RAV4 or fingerprints on the blood vial as examples of tangible proof—losing their jobs would be the least of their worries. They’d be put away in prison, and that is the last place a police officer wants to end up.

  And for what? Getting back at Steven Avery because they were embarrassed by a lawsuit in which they stood to lose not a dime? To regain respect for their department, which had been given a pass by the attorney general in her independent review of the conduct of a sheriff and district attorney who had long since moved on? The more I considered their possible motivation for planting evidence, the less it made sense. The pros were badly outweighed by the cons. In fact, they stood to gain nothing and lose everything.

  While it’s true that individuals occasionally act against their self-interest, it would be rare for dozens to do so in concert. Those knowing of, but not participating in, an alleged frame-up would be in trouble, too. It’s hard to imagine that dozens of officers and staff would not hear about a conspiracy as grand as that alleged by Buting and Strang. If deemed part of the conspiracy or its cover-up, the additional officers would run the risk, too, of getting caught and losing their jobs.

  Even for police familiar with physical evidence and traces of DNA and fingerprints left behind at crime scenes, the logistics of framing Avery for Halbach’s murder would be a nightmare. It wasn’t just one piece of evidence that police are alleged to have planted—it was seven—the bone fragments and teeth, the RAV4 and its license plates found in another vehicle closer to Avery’s trailer, the blood, the DNA on the hood latch, the key, and the bullets. Another piece that would have had to be part of the planting, and didn’t make the cut for Making a Murderer, was Halbach’s electronics that were found in a burn barrel in front of Avery’s trailer.

  They weren’t all planted at the same time. Avery’s blood first had to be placed in the RAV4 or added with others present while it was being guarded, possibly by sneaking under the tarp the day the vehicle was found on the property on November 5. The key would have to have been placed in Avery’s bedroom a few days later, then the bones, which may or may not have been planted on the same day. And finally the bullet fragment found months later with Halbach’s DNA on it, fired from Avery’s gun after Dassey confessed. How many cops were involved? How many crime lab analysts? How did they communicate? Who was the leader? Who planted what and when?

  What role did the real killer have? Did he simultaneously plant evidence without being caught? Or was he just the recipient of good fortune who became ecstatic when he learned that Steven Avery was being charged with the murder instead of himself?

  Why, during the intense search for Teresa Halbach, did nobody notice—not a motorist, a bicyclist, or a pedestrian—Andy Colborn driving Halbach’s oft-reported and well-described SUV as he made his way to the salvage yard? One man did come forward stating that he recalled seeing a “green SUV” while he was in the vicinity of the salvage yard between three-thirty and four p.m. on October 31. He testified in court: “It was possible that it was hers, but it was also possible that it wasn’t.” That’s certainly not very damning evidence, especially when he also never saw who was driving.

  None of the Averys saw anything, either, other than headlights a few days later, but not where the RAV4 was hidden. Not Steven Avery, his parents, his sister, Barb, and her sons, who resided in a separate residence on the property, or neither of Steven’s two brothers, one of which resided on the property and both working there daily. Depending upon which item of evidence they were planting, the officers would have to remain undetected by all of them and a very protective, loud-barking dog named Bear, which had held them at bay away from the burn pit on the first few days, while they searched other places on the massive property.

  Someone also had to place Teresa Halbach’s cell phone, PDA, and camera in a burn barrel on the other side of the driveway in front of Steven Avery’s trailer to make it look as if they were burned inside the barrel—the same barrel that had emitted the smell of burning plastic, on the evening Teresa disappeared and in to which Avery was observed throwing a bag. Before planting the items there, the malefactor would have had to smash them to pieces and then place them into the barrel. Why would the officers destroy them first and lug along a large tire rim to place on top of the barrel? They could have achieved the same result by tossing the phone, PDA, and camera in the barrel, each intact.

  Did police know that Avery would build a large fire in the burn pit behind his garage on the night Halbach disappeared and deem it a suitable site to plant her bones? Foresight like that is reserved for tea leaves and crystal balls.

  For argument’s sake, let’s say they didn’t actually plant bone fragments belonging to Teresa Halbach, and instead dug up her grandmother’s bones for mitochondrial DNA. This ridiculous claim was made by an excessively imaginative conspiracy theorist. Police spoke with Teresa’s mother and were told that Teresa’s grandmother was very much alive, albeit in poor health. That put an end to that line of speculation. But perhaps they were able to plant the bones of another girl who died around the same time that Teresa Halbach did, as suggested by a slew of o
nline commentators after Making a Murderer.

  In either scenario, how did police get a tibia, a bone fragment with a small amount of charred tissue, the only one that DNA testing could be done on? Although only a partial profile could be created, due to the extent of the damage, Sherry Culhane testified that it matched Halbach’s DNA profile and that only one person out of every billion would meet that same criteria. Did police find Teresa Halbach deceased inside the RAV4, burn her, and plant her bones? Or did they find her already burned by the real killer, and decide to move her bone fragments, more than twenty teeth fragments, and five rivets from her Daisy Fuentes jeans, which she was wearing, to Avery’s burn pit? And did they, for good measure, put four of the larger bone fragments next door in his sister Barb’s burn barrel? It doesn’t make sense. And then there’s the blood. Halbach’s blood was found in the back of her SUV and so was Avery’s. His blood was identified in six different places confirmed by DNA testing. One of those stains was located right next to the ignition and Avery had a substantial cut on his finger, on his right hand—presumably, the finger he would have used in turning the ignition key.

  Nick Stahlke, the forensic scientist called as a blood spatter expert from the crime lab, testified that along with other stains, the ignition stain was consistent with being left by a person who was actively bleeding. Are we to believe that when Colborn, and whoever else was helping to plant the blood, opened both the driver door and the rear passenger door. And carefully left the active bleeding type of bloodstain? Even discounting the bloodstain on the ignition, which conspiracy theorists demonstrated on the Internet could be duplicated with a simple Q-tip, the remaining five stains could not have been placed there in the same manner.