Taking the license plates off the RAV4 and then tossing them in a salvaged station wagon in a much more populated area of the property seems like another unnecessary risk to take. Why not leave them on? Or, for that matter, why fold them in half if you are trying to frame somebody?
Testing on three of Avery’s bloodstains in the RAV4 proved negative for EDTA. Are we to believe the defense’s contention that police planted his blood, which was extracted from a blood vial drawn years ago and kept in the clerk’s office, in Teresa Halbach’s vehicle? In Avery’s favor a defense expert testified that minuscule traces of EDTA preservative would not be able to be detected under any test devised. But it was well argued then, and in the aftermath, that the FBI EDTA test was the best test in existence at this point in time. The blood in the vial was tested and proved positive for EDTA. That container with the alleged planted blood came from tested positive for EDTA, but the blood in the RAV4 did not goes a long way to negate the theory that it was the same blood.
Let’s look at the defense’s accusation that Manitowoc County detectives Jim Lenk and Andy Colborn planted the ignition key in Avery’s bedroom. The key was found by Lieutenant Lenk when he, Sergeant Colborn, and Calumet County deputy Kucharsky were searching Avery’s bedroom. How could Lenk handle the key and toss it without getting his own DNA on it while the other officer was two feet from him? Why not plant it during one of the earlier searches? Most of all, why would a trained and experienced lieutenant haphazardly drop the key when a Calumet County officer was sitting on the bed two feet away? Wouldn’t it work better if he put it somewhere else? He’d know where investigators had searched previously.
Unlike the documentarians, I had gone well beyond the visual impact of a blood vial with a syringe hole or a key lying in plain view on the floor to investigate the evidence-planting claims, and after peeling back the layers, the defense accusations had evaporated into thin air. The experience reminded me of a U.S. presidential candidate’s television advertisement a quarter century ago when he chided his opponent for a policy proposal’s lack of substance: “Where’s the beef?” There was simply nothing there. Neither Buting nor Strang nor the documentarians themselves had produced a shred of affirmative evidence that Lenk, Colborn, or anyone else associated with the Manitowoc County sheriff’s department had conspired to set up Avery for Halbach’s murder. It was nothing but innuendo. I was convinced more than ever that Avery had murdered Halbach, probably just as Dassey had described.
* * *
There are social media commentators even more obsessed than I am with Steven Avery’s case and with Making a Murderer, and I am certain they will find fault with my analysis of his motive and that of the police. But I had seen enough. The contrast between the clearness of his motive to rape and murder Halbach with the sheriff’s department’s lack of motive to frame him could not have been clearer. Steven Avery had lost yet another round in my mind.
* * *
Whoever said jury instructions are boring is wrong. It’s one of the shortest on the books, but after the instruction that explains the meaning of “beyond a reasonable doubt,” it’s my favorite by far. The statute’s unassuming title is “Juror’s Knowledge,” and its purpose is to advise jurors that when they walk into the courtroom they don’t have to leave their common sense at the door:
WI JI 195: Juror’s Knowledge:
In weighing the evidence, you may take into account matters of your common knowledge and your observations and experience in the affairs of life.
The instruction is especially applicable to circumstantial evidence, and once I carefully examined the common sense implications of the circumstantial evidence in the Avery case, I was surprised how convincing it was as further proof of his guilt.
First, it’s easy to overlook the significance of the fact that he was the last person to see Teresa Halbach alive, especially because he denied ever seeing her that day when he spoke with Robert Fabian and his brothers, Chuck and Earl. At four-thirty in the afternoon, probably within an hour of murdering Teresa, he told them the photographer had not shown up. He was obviously covering his tracks.
He gave conflicting statements to the police, another sign that he had something to hide. First, he told them he saw the photographer through the window, but never talked to her; she took the picture of Barb’s van and drove away. The next day, he told them that he spoke with her briefly, paid her, and then she drove off. His inconsistent statements, especially when considered in light of his calling Auto Trader and using *67 on his phone is convincing evidence that Avery lured Teresa to the salvage yard that day with the intent to assault her.
Further, both Dassey and Avery admitted they were together on October 31. In fact, they said they happened to be cleaning the very same garage where Dassey told investigators Avery shot Halbach. Dassey’s mother even told police that he had bleach on his jeans when she saw him later that day.
What are the odds that two men accused of killing a woman in a garage would be cleaning that very same garage on the very same day that they are accused of killing her and using bleach to clean the floor?
* * *
One of the most common, and understandable, questions of those who have watched Making a Murderer is that with a murder as violent as that which befell Teresa Halbach according to the account of Brendan Dassey, why was there no blood or hair found in Avery’s residence? There are a few plausible explanations. A plastic covering on the mattress would be easy to remove and destroy. Avery may have had everything—mattress, carpeting, and furniture—encased in plastic wrap.
Those of us in the business sometimes refer to the CSI effect. Because of it and similar television crime shows, most people assume that almost every crime, especially one as violent as that depicted by Dassey in his confession, leaves a wealth of physical evidence in its wake. The facts are otherwise. Blood spatter on walls, for instance, even in a stabbing case, is not as common as one may think.
Moreover, Dassey’s description of Halbach’s wounds before she was shot by Avery may not have resulted in a great deal of blood spatter. He stated that Avery stabbed her once in the stomach, not numerous times, and his description of how he cut her throat when his uncle told him is suggestive of a superficial wound, considering that by Dassey’s account, Halbach was still breathing when Avery started to choke her. We will never know exactly what happened in the trailer that afternoon, but it would be inaccurate to assume that Halbach was not murdered there as Dassey said she was solely because of the lack of physical evidence that some of us might expect.
There are other explanations for the lack of evidence in the bedroom and the rest of the trailer home. Avery and Dassey had from October 31 to November 5 to clean up evidence of the murder. A great deal of cleaning can be accomplished in five days..
Second, Making a Murderer portrayed Avery as someone who did not go out of his way to clean or declutter. It implied that he was not capable of cleaning up thoroughly enough to hide every ounce of DNA from a crime scene. I was surprised to read that there were contradictions to that assumption. Jodi Stachowski told police that she and Avery were both “clean freaks.” And on February 23, 2016, a retired Calumet County officer told Fox 6 News in Milwaukee that she was inside Avery’s home early in the investigation and it was extremely clean. She was surprised when she heard Dean Strang tell a news reporter, “Steven Avery can be accused of being a lot of things, but a really good housekeeper doesn’t make the list.”
“Just the bleach containers on his kitchen cupboard and how immaculate his house was, he cleaned that house. I believe he spent all of his time cleaning that house and trying to get rid of the remains, and that’s why he didn’t have time to crush the car. It’s just my opinion,” the Calumet County officer said.
“All I can remember is his house was so clean. And when his attorney, this kind of struck me, a couple weeks ago, his attorney and Ken Kratz [the prosecutor] were on one of the news shows and I can’t quote him, but his attorney said, ‘O
ne thing I can say about Steven Avery is that he’s not a very good housekeeper,’ and my jaw dropped when he said that, because when I was in there, it was so clean. It was so clean. Not just uncluttered, but clean, clean,” the deputy said.
Given he had five days between the murder and the discovery of the RAV4, and based upon the Calumet County deputy’s observations that the trailer home was extremely clean, the lack of physical evidence like blood or hair is not as unbelievable as was implied.
More convincing evidence comes from the blog entry of a reporter who interviewed Steven’s father, Allan, during the time of the trial:
Then, Allan Avery told me about how Earl and Chuck said, “They lost the best janitor they ever had.” Steve was “clean.” Allan said that was all Steve did in prison, was clean. He said he could sweep up a floor in 15 minutes flat. He said that Steve’s trailer was clean and that he didn’t like a dirty house.
Another item of interest on this point is that Avery moved the furniture in his bedroom after Halbach was killed. I located this information in the court transcripts for Brendan Dassey’s trial. Jodi Stachowski was shown a depiction of how the bedroom was found by police on their first entry and asked if that’s the way the furniture was positioned before she went to jail in August 2005:
Q.: Now, before you went into jail, looking at Exhibit No. 73, was the room set up or configured that way?
A.: No, it wasn’t.
Jodi was then asked to explain how the bedroom was different:
Q.: Could you tell the jurors, please, how it was different? What . . . First of all, where was the bed when—when you went into jail? How was it situated?
A.: In the corner underneath the two windows. When you first walk in the door, you’d walk straight into the bed.
Q.: Which, uh, side, or which wall was the headboard on?
A.: The headboard was on the farthest wall, the small window.
Jodi’s description of where the bed was situated matched a sketch (Exhibit 208) that Brendan Dassey drew on March 1, 2006, and what he told police per Detective Mark Wiegert’s testimony in Dassey’s trial:
Q.: Okay. What is 208?
A.: Two-oh-eight is Brendan’s drawing.
Q.: Okay.
A.: And that’s how he claims the bedroom was on October 31, right?
Q.: Yes.
Without any further explanation, the defense claim that there should have been physical evidence of Halbach’s gruesome murder in the trailer home is quite convincing. Add the selective editing of Making a Murderer, and it’s easy to see why so many viewers were convinced that the murder did not occur there. But if you spend the time to investigate why the police may not have found physical evidence other than the key in the trailer home, you come away with an entirely different picture—especially if you keep all the rest of the evidence in mind.
Stepping back to consider the evidence-planting claim in its entirety, as opposed to the lack of evidence found in the trailer home, led me to a similar conclusion. The police were not accused in this case of planting a single item like a gun or a knife at the crime scene, as is typical in such cases. They were accused of planting hundreds of partial bones, bullets, a vehicle, blood, a key, electronics and DNA material on a hood latch. Such a feat would require the involvement of more than a few revenge-minded officers.
It isn’t just the evidence planters who would have to be involved. There isn’t a police officer or a prosecutor in the country who will tell you that a dozen, or even a few bad cops could hide their misdeeds from at least some of the other participants in a criminal investigation. Prosecutors, especially, by the time the case goes to trial are acutely aware of every detail of the investigation, including how the pieces fit together and the timing and manner of their discovery. Not only that, the code of silence would have to continue for more than ten years and counting, for no one in law enforcement or anywhere else has come forward to report the misdeeds of their colleagues.
So who would likely have been “in on it, too,” as my former Facebook friend accused me of being, so many months ago? Police from four jurisdictions, including the state police under the governance of the Wisconsin Department of Justice, the Wisconsin Crime Lab, also under DOJ’s governance, and three prosecutors, one of them from DOJ and none of them from Manitowoc County.
If that weren’t enough, the conspiracy would have to be hatched soon after Colborn fortuitously came upon Halbach’s SUV on November 3, 2005, and lasted all the way until March 1, 2006, the day police allegedly planted the bullets from Avery’s gun in his garage. As the defense and Making a Murderer would have us believe, this was the opportunity police had been patiently waiting for: a multi-month, multi-agency, multi-disciplinary, multi-jurisdiction conspiracy and a master plan to get Steven Avery once and for all!
CHAPTER 17
COLBORN AND LENK
Whatever one thinks of Making a Murderer, there is no question that it has caused a great deal of suffering to a number of people, harmed some on a minor level, but others on a grander scale.
Take Ryan Hillegas, Teresa Halbach’s ex-boyfriend for example. After Making a Murderer aired, Ryan was the number one alternate suspect, at least in the eyes of one viewer, who believed so strongly that Hillegas was the killer that he got on a plane and flew across the country to meet with the Avery family. He showed up and knocked on their door on Christmas Day. He sat down with them, telling them he agreed that Steven and Brendan were innocent, and that Hillegas was the killer. Even the Averys tired of his theory, and they called the police to come to the salvage yard and escort him off the property.
Bobby Dassey, Steven’s nephew and Brendan’s brother, and his future stepfather, Scott Tadych, who later married Steven’s sister, Barb, didn’t escape public scrutiny either. At around three-ten on the afternoon of Halbach’s death, Dassey and Tadych passed each other on the road, each on their way to hunt for a few hours before it got dark but in the opposite direction. But neither of them could give police an account of their whereabouts other than that provided by the other. They had opportunity and no alibi, except for each other, and that was enough reason for vigilante viewers of Making a Murderer all over the land to accuse them of murder. Neither Dassey nor Tadych had anything to do with Halbach’s murder, but by carefully editing court testimony, the makers of Making a Murderer had made them into murderers.
* * *
Jodi Stachowski, Avery’s ex-fiancée who stood by him in Making a Murderer, was, according to Avery in a letter he wrote to a Milwaukee television station, a backstabbing alcoholic after she dared to set the record straight in an interview with Nancy Grace. She told Grace what life was like with Steven Avery, how he choked her for not telling him she went out and where on one particular evening, how she tried to poison herself just to get away from him.
But it was too late. Netflix watchers had already formed their opinion that Avery was innocent, and the internet was abuzz with insults that any money Jodi made from the interview probably just went to booze. Perhaps her reputation could be restored if readers took the time to review the police reports, which are available online. What they will find is that Jodi gave similar statements about being abused by Avery both before and after the murder, long before Making a Murderer aired. Much of what she said to Nancy Grace is substantiated by those reports.
Steven’s niece—Candy Avery’s daughter and the adopted daughter of Earl—was only seventeen when she was victimized by Steven Avery. Had anyone read her statement before Making a Murderer, he or she would have seen that she was a young girl, who was taken advantage of by her deviant uncle. When Avery didn’t get his way, he threatened to kill himself and harm her family.
Not surprisingly, the incident did not make the cut in Making a Murderer, and the victim is left knowing that millions of Netflix viewers consider the monster who assaulted her to be a harmless man down on his luck because of a justice system out to get him. One viewer from the United Kingdom saw fit to mention online that having s
ex with a minor of Avery’s niece’s age is not considered a crime in European nations.
* * *
The “Truthers” are visitors on the Reddit website who believe Avery is innocent. The “Guilters” believe the opposite. And then there’s another group who have not yet come up with a suitable name. Most of them believe that Avery is guilty or lean toward his guilt, but they feel strongly that he did not receive a fair trial. Without knowing what part of the trial they specifically feel was unjust, it’s hard to comment on their concerns, but presumably, they are mostly upset by Colborn and Lenk and what they consider irrefutable proof that the two of them planted evidence. And again, who wouldn’t if all you know about these two officers and about the Avery case was what you learned from Making a Murderer?
I believe I was successful in my effort to not allow my impression of Colborn and Lenk to color my thinking along this journey as we near its end. But having satisfied myself, and perhaps some of you as well, that they did not plant evidence, it is appropriate to share a bit of their character as I have come to know it over the years. Certainly there were others—Detective Dave Remiker, Detective Mark Wiegert, and Special Agent Thomas Fassbender come to mind—but Colborn and Lenk bore the brunt of the accusations from both the defense and the documentary, so it seems fitting to set the record straight.
Neither of these men will be destroyed by Making a Murderer. Their strength of character will not allow it. I have witnessed how their lives were upended by the series, and I thought they deserved more than just my giving readers my opinion of them. I wanted to back it up with facts.
I reviewed county records—the personnel files of Andy Colborn and Jim Lenk. In truth, I was not looking to redeem them. Rather, I was putting them under a microscope. I was not only searching for supporting documentation of the flattering adjectives I frequently used to describe them, but I was also looking for any bit of corruption, or unsavory act, committed by them.
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