The Netflix documentary ‘Making a murderer’ has received critical acclaim,
sparking widespread condemnation for the imprisonment of Steven Avery and
Brendon Dassey. The documentary explores the conviction of both men for the
murder of Teresa Halbach, taking the view that Avery and Dassey are framed for
the murder by the Manitowoc County police force. It is argued this was done as
an act of revenge after Avery successfully sued Manitowoc County for a wrongful
conviction of attempted murder and sexual assault.
I
would like to point out that I do not consider Avery or Dassey to be either guilty
or not guilty. I consider it ill-advised to make such a determination, even after
10 hour long episodes and subsequent research. As with all trials, not being in the jurors’ seat puts
anyone in an impossible place to make a decision. In this article, by presenting arguments for the other side, I aim to illustrate that making up one’s mind over something as serious as a
murder charge, based on a documentary series, without equal opportunity for the opposition is highly unwise.
On behalf of the defence
The
10-part series, with episodes of approximately 1 hour each, totals 548 minutes
in running time. The documentary makers are unequivocally presenting the case
to the viewer that Avery and Dassey should not have been found guilty. In other
words, we hear almost ten hours of the defence. One can’t help but wonder then,
what one would have seen had there been a 10-part series of 548 minutes made by
the prosecution? The programme demonstrates why fair trials are so important.
It shows one side of the case, and from just that side, a finding of not
guilty appears so obvious. Yet, clearly, a jury didn’t find it obvious. Perhaps,
as unbelievable as it might be, we might have heard things that could have
explained the seemingly suspicious behaviour of the Manitowoc County police
force. The
jury was of the mind that they were sure Avery and Dassey were guilty of the
crimes which they were charged. Over 548
minuets, the only time we hear the prosecution’s evidence is where it is
shown in its worst light. But what didn’t we see?
The omitted evidence
There are five things the filmmakers omitted altogether from the documentary. The first relates to forensic evidence of Avery's sweat, the second concerns phone calls made from Avery to Halbach, the third relates to her phone, camera and PDA, the fourth focuses on statements made in Avery’s interview with the police, and finally, statements from other witnesses.
There are five things the filmmakers omitted altogether from the documentary. The first relates to forensic evidence of Avery's sweat, the second concerns phone calls made from Avery to Halbach, the third relates to her phone, camera and PDA, the fourth focuses on statements made in Avery’s interview with the police, and finally, statements from other witnesses.
There
is also something to be said for the blood vial, car crusher, bullets, bones
and keys, but this will be discussed later under the heading 'the planted evidence'.
Avery’s sweat
The phone calls
Avery
made two calls to Halbach on 31st October. He used the *67 feature to hide his
number from the recipient of the call. He did not use *67 to call anyone else
on 31st October. Why he used this to call Halbach remains unanswered.
There
are several arguments as to why Avery might have done this. Perhaps it suggests
his innocence; why would a man call a woman he knew to be dead? Perhaps it
suggests his guilt, as one might question the suspiciousness of attempting to
anonymise his phone calls.
Additionally,
Avery stated that Halbach had visited his yard to take pictures of cars he sold
on Autotrader previously on several different occasions. In court, the
prosecutor argued that Avery called Halbach’s manager and specifically
requested Halbach to come to his property to photograph the car.
Halbach’s phone, camera and
PDA
Halbach’s
phone, camera and PDA were discovered in a burn barrel on Avery’s property. Had
Avery been framed by the Manitowoc County Police Department, this evidence
would have to be placed there by them as well, including other items such as
the car, keys, and bones, though more on these items later.
Statements made by Avery at
interview
Avery
stated at interview he had not recently used the burn barrel where Halbach’s phone,
camera and PDA were found, and denied use of the burn pit,
where Halbach’s bones were found. On 31st October, he states he was
in his trailer alone for the afternoon and evening. Multiple witnesses state
they saw Avery using the barrel and burn pit on the 31st October.
Witness testimony
Related
to the point above, witness testimony that would have been of interest to a
viewer was omitted from the documentary. Robert Fabian, a friend of Avery’s
brother Earl, stated that he saw Avery acting strangely on the 31st
October, and was having a fire in the burn barrel where Halbach’s phone, camera and
PDA were found.
Kayla’s
counsellor stated that Kayla had confided in her counsellor, and in 2006 stated
that she was scared of Avery, and he had asked her cousin to move a body.
The planted evidence
The
documentary suggests the blood vial, the keys to Halbach’s car, bullets, and bones
were either planted or tampered with by the Police to frame Avery.
Blood
The
hole in the top of a vial containing Avery’s blood was presented by the
documentary as the smoking gun. They argued the hole in the top showed that
whoever was in possession of the vial had used it to extract blood, which they
then used to frame Avery.
However,
methods of inserting blood into a vial include using a needle to pierce the top
of a seal to insert blood from the top. Videos of this method can be found in
various places online. The lab employee confirmed they did not do this to test
blood samples. Indeed, they may not test this way, but they may be initially
collected this way.
It
is odd why a person familiar with this evidence would not point out that many
other blood vials had holes in the top, and this was a common method of
collecting this sample, if that is what is normal. Perhaps this was cut from
the interview, though if she did say this and the filmmakers left it out, it
would be highly misleading.
Additionally,
the prosecution had intended to call a nurse, Marlene Kraintz, to confirm that
she had put the hole into the vial at the point of collecting the sample. They decided not
to call her. Kratz, the prosecutor in the case, stated this was because the
defence did not raise the issue ‘significantly enough’ at trial, whereas the
documentary chose to rely on it heavily.
The
hole does not necessarily disprove the theory that the evidence was planted. The
existence of the hole would have made it possible for someone to re-insert a
needle into the top and extract blood to plant on the car. Indeed, it could
even be easier to do so undetected, due to the hole in the top already
existing. However, it would be difficult to find that the hole itself was
evidence of tampering if they are commonplace in such samples.
EDTA
is a chemical mixed with blood to preserve samples. It is present in preserved
blood, but not in blood which has not been preserved, such as in a vial. If the
test of the blood samples taken from the car contained EDTA, it might be more
reasonable to suggest the blood was planted using the vial already held. The
test conducted by the FBI in the Avery trial did not find EDTA.
The
defence contested the finding, stating the test was contaminated and rushed.
These points are accurate. The defence had knowledge of the blood vial before
it was submitted as evidence. In rejecting the defence’s request to verify the
FBI’s test, the court ruled ‘if the defendant had felt the testing of the blood
was important, the defendant had adequate opportunity in which to arrange for
such testing’. Previously the defence made applications to block the
prosecution from releasing the blood vial for testing. This may explain the
delay, and subsequent rushing of the FBI’s testing.
The
documentary appears to stop short of accusing the FBI of being complicit in the
conspiracy to frame Avery, but does not shy from inviting the viewer to do so
by presenting a snowball of suspicions in the investigation. Suggesting the FBI
is colluding with the Manitowoc County Police, without an apparent motive,
other than the arguably loose assumption that law enforcement will look after
their own (to the point that separate organisations will tamper with evidence),
seems quite unlikely.
The
seal on the evidence box that contained the blood vial was shown to be broken.
Manitowoc County DA confirmed he opened the box after both prosecution and
defence were authorised to look at the evidence from Avery’s previous trial,
where he was wrongfully convicted.
Keys
A
seemingly suspicious piece of evidence is presented in the form of Halbach’s
car keys, found on the floor of Avery’s trailer. The photo shows they were
discovered in clear, unobstructed view. The keys were found on the 5th
search entry to the property. The defence argues the police could not have
missed these keys in the position they were claimed to have been found in the
previous 4 searches. That they found them only on the 5th search could suggest they were planted. Whilst DNA of Avery was found on the key, the
defence also argued this was planted.
On
the 5th search, the police were collecting pornography from Avery’s small
bedside bookcase. The report states they shook the bookcase whilst searching
it. There is a photo showing the back board of the bookcase coming free from
the rear of the bookcase. They discovered the keys on
the floor after the bookcase was searched, suggesting the vigorous searching of
that specific piece of furniture damaged the rear of it, allowing the keys to
fall through an opening created from the backboard coming free, and on to the floor.
A picture of Avery's bookcase showing the backboard coming free from the rear can be found here:
https://static1.squarespace.com/static/5691be1b25981daa98f417c8/t/56a7140889a60afb608eebaa/1453790287548/?format=1000w
According
to the documents released, it is accurate to say that 4 searches were carried
out until the keys were found. The purpose and duration of those searches were
recorded as follows:
1. Search
1 – 10 minute search to check if Halbach was in the trailer
2. Search
2 – 2 hour 30 minute general search, collecting 50 items and ended the search
due to bad weather
3. Search
3 – 20 minute specific search, police had list of items they intended to
collect, and were not conducting a general search of the property
4.
Search
4 – 7 minute search, specifically collecting the serial number of his computer
5.
Search
5 – 3 hour 43 minute extensive search, searched bookcase and discovered key
This
does not mean that the keys could not have been planted. They could have been.
It could also be argued the police should have discovered the keys on the
second general search of the property, and the fact that they did not, suggests
they might have planted them.
Equally,
the prosecution may have argued that if the keys were hidden in the bookcase,
they would not have been as plainly obvious to officers as the documentary
suggests. Also, as their second search was cut short, they may not have had the
time to complete a search which was thorough enough to discover the keys, assuming they were hidden in the bookcase. As searches 3 and 4 were to obtain specific
pieces of evidence, locating the keys in the bookcase would have been
improbable as well.
The
discovery of the keys is again an example of the problems with hearing one side
of an argument in isolation. Whilst the opposing side may not defeat the
argument presented, it may provide another plausible explanation of how they
were located. Without hearing this evidence, the viewer is lead to a seemingly
unassailable conclusion.
Bullets
The
bullets were found under an air compressor, after the police focused on the
garage as the possible location for Halbach’s murder from interviewing Dassey
(irrespective of this there are many problems with Dassey’s interview). The
prosecution state they had not previously located the bullets because, again,
limited searches of the garage took place. Much like the searches of the
trailer, an initial search to locate Halbach was initially conducted, and then
another search which only removed a snowmobile. It left other vehicles and
heavy machinery in place as these items were cumbersome and difficult to move.
Without reason to do so, they were left in situ.
It
is possible the bullets were planted in the garage by the police. However,
whether the bullets were planted or not, forensics confirmed the bullets came
from Avery’s rifle. Manitowoc Police had never previously been in possession of
his of his rifle. DNA testing on one of the bullets matched DNA of Halbach. The
control sample of DNA was contaminated by the technician who conducted the testing,
however the actual sample of DNA from the bullet was not contaminated.
As
the police did not hold a sample of Halbach’s DNA, it is difficult to imagine
how her DNA came to be present on the bullet that was fired from Avery’s gun. Therefore,
it seems almost certain that Halbach was shot with Avery’s rifle. If Avery
did not shoot Halbach, either the Police shot Halbach with his rifle, or
another person shot Halbach with his rifle.
The
first theory deepens the conspiracy much further, and with greater severity. It
suggests the Police murdered a woman to frame a man who sued their police
force. The second theory would be that Police discovered the murder, not
conducted by Avery, and moved the bullets shot by an unknown third party. Taking
either theory, it does appear highly suspicious the bullets came from Avery’s
rifle.
Bones
The
bones found in the burn pit on Avery’s property were confirmed as those
belonging to Halbach. They were burned considerably. A forensic anthropologist
gave evidence that very small fragments of bone, including small fragments of
teeth, and parts of almost every bone found in the human body were found at
Avery’s burn pit. Bones were also found in a quarry on Avery’s property. The
defence argued that the quarry was the initial site of the burning, and the
bones were later moved by the police, to the burn pit, in order to frame Avery.
Evidence
provided at trial stated that the bones and tyres were burned with them, as
steel wire from the tyres was intertwined with the discovered bones. It was
reasoned this could only have been produced by burning them together. The bones
found in the quarry were larger bones, appearing to be a pelvic bone. It seems
unclear as to why smaller bones would be in the burn pit, whereas larger bones
were left behind, if the theory that the police moved the bones is to be
accepted. All evidence, however, points in the direction that the bones were
burned in the burn pit.
Whilst
the explanation as to why larger bones were found away from the burn pit is
left to speculation, the evidence presented at trial suggests that
the bones were burned at the burn pit. Someone moving the larger bones to a site such as the quarry from the burn pit may have done so in order to make it appear less obvious that remains were burnt there. It would logically follow that the larger bones would be moved first, rather than the smallest fragments moved first, only to leave the largest bones behind. As noted, the few larger pelvic bones were found in the quarry, and the much larger collection of tiny fragments were found in the burn pit. This evidence does not, however,
preclude the possibility that the bones were moved in the opposite direction, from quarry to burn pit, but it does appear less likely.
Not questioned at trial
If
a defendant refuses to answer questions at trial in England and Wales, the jury
is entitled to make an adverse inference from a defendant who does not answer
questions in his defence at court, under s.35 Criminal Justice and Public Order Act 1994. The
inference the jury may make is that
the defendant is guilty of the crimes he is charged with. This is distinct from
the more familiar ‘right of silence’ prior to trial, the warning of which many
will know: ‘you do not have to say anything, anything you do say…’. This operates
in a different way, and should not be conflated with what can be inferred by a
defendant who fails to give evidence in his defence at trial.
An
exception to this is where the physical or mental condition of the defendant would,
in essence, make it unjust to make such inferences. There is a high standard to
meet here, and it is very rarely the case as most who fall in to this category
would be considered unfit for trial. I think it would be highly unlikely, based
purely on the documentary, that Avery would fall into this category.
I
am not sure if an equivalent provision exists in the American criminal justice
system, though if Avery chose not to answer questions at a trial in England and
Wales, the jury could infer he was guilty of murder from him failing to answer
questions at trial. It is particularly uncommon to refuse to answer questions
at trial, mostly for the risk of what could be inferred if one does not.
Does an imperfect crime suggest
innocence?
The
defence lawyers for Avery argued if he really did place his vehicle on the
property, he would have used his car crusher to dispose of the vehicle. Since Avery
did not do so, this suggests he did not place his car there. The defence argue
that this suggests the car was planted. There was a period of 4 days where
there was opportunity to use the car crusher, since Halbach was last seen on
the 31st October and the car was found on the 5th
November.
First,
an opposing argument might be that just because a crime is committed
imperfectly does not necessarily mean that the accused did not commit it.
Indeed, many who commit very serious crimes behave irrationally, and largely without
logical thought. If a person is before a criminal court, defending themselves,
is it not likely that at least some are there because they are not criminal
masterminds able to evade the authorities? Surely many of whom we see at trial
are those who are there because they are unable to avoid prosecution and
conceal their crimes effectively.
Second,
using a car crusher is both time consuming and nosy. Completing the process
could have risked raising suspicion of Chuck, Avery’s brother, who lived 100
yards from the car crusher. Cars typically require draining the fluids, such as
oil, petrol, transmission fluid and so on, before they can be crushed. Other
parts of the car such as the tyres and engine block are removed as well, which
requires the use of loud and cumbersome machines, as well as the car to be
lifted. It might be difficult to argue that the car crusher could be operated
without detection.
Third,
interviews suggest that Avery rarely operated the car crusher, and it was
primarily Earl, his brother, who would use the machine. This could suggest
Avery was not competent in using the machine and would not have been able to
dispose of the vehicle quickly and easily. It could also mean that Avery knew
that if he was seen operating the machine, which was out of the ordinary, it
could raise suspicions as to why he was using it, and Earl, who normally
operated the machine, was not.
Finally,
the 4 days in which Avery had an opportunity to dispose of the car in the
crusher were limited by Avery being at the family’s cabin on the 5th,
at a car auction on the 4th, and the night of the 31st
would have been dark and would have possibly raised suspicion using the loud
machinery at that time of night. There would have been 3 days where Avery had
opportunity to crush the vehicle. Combined with the reasons above, Avery's failure to use a car crusher may not be such a conclusive indication of innocence as one might have originally thought.
The extent of the
conspiracy
The
case theory of the defence is that Dassey, and specifically Avery were framed
due to the law suit Avery successfully won against the local authority due to
his wrongful conviction. They argue that such was the anger of the police after
losing the suit, that faced with the opportunity to frame Avery with the murder
of a local photographer, they acted accordingly and planted evidence. The
defence did argue this, as shown in the documentary, before the jury. The jury
found him guilty regardless.
There
were 5 agencies involved in the investigation into Halbach’s murder, notably
the FBI and the Department of Justice were among them. Whilst it is not
impossible that all of them could have been part of the conspiracy to frame
Avery, it would be unlikely. If they are not all part of the conspiracy, it
would be exceptionally difficult and risky for the Manitowoc County Police
Department to frame Avery, knowing the other organisations would be involved,
and presumably have opportunity to discover the dishonesty.
The
documentary also suggests that the insurance company dealing with the civil
suit had refused to cover the costs, making the individuals named in the suit
and the Manitowoc County responsible for the costs. This suggests the motive to
frame Avery might be increased further, as the individuals would be financially
responsible for a suit that was up to tens of millions of dollars in damages.
However,
Dean Strang, the lawyer representing Avery, has since confirmed the insurance
company has paid the costs of the law suit. The individuals named in the suit,
Thomas Kocourek and Denis Vogel, were retired by the time of Halbach’s murder,
and were not involved in the investigation nor did they have to pay the damages. Lenk and Colborn, the investigating
officers on the Halbach case, were not facing any criminal or financial
consequences from the law suit.
Whilst
it is possible Vogel and Kocourek heavily influenced the officers at the
Manitowok County Police Department from retirement to frame Avery for Halbach’s
murder, it perhaps seems unlikely due to their remoteness by virtue of being
retired. It would also be logical to assume the motive to orchestrate such a
conspiracy would be muted since they were not facing any personal financial
responsibility. It additionally seems unlikely the Police Department were so
collegiate and devoted that they would frame Avery on their own behalf, simply
because their Police Force was successfully sued.
How do we know all this
information?
A
wealth of information, including court transcripts of what appears to be most of, if not all, the trial, can be found online.
The
transcripts for Steven Avery’s trial can be found here:
A word of caution
All
of the points made in this post are not designed to definitively show that Avery
is guilty. Rather, the purpose is to demonstrate that hearing the other side of
a case can, at the very least, show that the case was not as black and white as
once thought. Hearing both sides of a case, even if it seems obvious that a
defendant is guilty or innocent, is crucial to a fair trial.
Even
with all of the court transcripts and documentation that has now been uploaded
to the internet, it is still unwise to make a determination of guilt. There are
many things lost when evidence is reduced to just paper. The manner in which
evidence is given, the tone of voice, the emotion, body language, the length of pause before
a response and many other things are all lost from courtroom to transcript, yet all can alter how a
juror views the credibility of that evidence. As a juror is always in the best
position to make a judgement in a case, when one hears a criminal trial via
means other than that of a criminal trial, it is always best to exercise
caution when hearing just one side of the case.