“Testing the Evidence” is another sensational sub-title which Netflix employs with, again, much innuendo but, no real juice for the squeeze.
By Pat Merriman
Dunn Co. State’s Attorney
We are promised that Steven Avery’s defense team is going to crush the state’s “contaminated evidence” and, then, there will be a lack of anything actually connecting him to the crime. But, that’s not what we actually SEE in this episode. The defense theory of the case is that since Teresa Halbach was stabbed in the stomach, had her throat slashed and suffered two .22 caliber rifle wounds to the head, there just isn’t enough blood splatter at the scene to incriminate Avery. Except for one problem…just like the OJ Simpson case, this defense team is NOT trying to disprove guilt by the 2 most common methods: alibi or reasonable doubt, they are putting the cops on trial for framing Avery. And, folks, that’s an all or nothing gambit. Without a “race card” to play, to distract and motivate a group of 12 people (with their own agenda), Mr. Avery either walks with this ploy or, he goes to prison. And, if the jury doesn’t buy it, they stop looking at reasonable doubt because only a guilty man would put the cops on trial like this.
Avery’s team is stuck with his infatuation, stalking and harassment of Halbach, so they attack the investigators. Remember, Special DA Ken Kratz is relying on Halbach’s SUV (found hidden in the Avery junkyard) containing his blood AND sweat, a bullet with Halbach’s DNA (Avery’s garage) and the victim’s keys (found in Avery’s bedroom) with handcuffs, leg irons, the .22 rifle (tied to the slug in the garage) and the bone/ teeth fragments found in the “burn pile” (just outside Avery’s trailer) and in 2 other locations on/near his property. Both Netflix and the Avery defense fall prey to the same, basic flaw in their thinking which you can summarize as, “don’t you just love a good coincidence?” All of this evidence (and there’s a ton of it here) does not spontaneously occur in nature and, it all ties this dead young lady to Avery—the self-confessed last person to see her alive. It corroborates the state’s theory, i.e., he wanted to engage in bondage sex, she objected and, he killed the only witness and burned her body after he raped her. Short, plausible and proveable.
Bloggers Alex Abad-Santos and German Lopez sum up the problem quite nicely, “Making a Murderer relies on a lot of tropes that are all too typical of true crime documentaries, including leaving out some major pieces of evidence that would hinder its overall thesis that Avery is innocent.” In this episode, the defense team is cutting its own throat in my opinion. First, they continually complain that the pre-trial publicity has destroyed their client’s right to a fair trial. Yet, and this is going to be a major problem on appeal, THEY keep thumping the media drum themselves. It’s hard to complain about pre-trial publicity when you’re throwing your own share of the poo too.
Second, Avery is attacking the validity of DNA testing in this episode. Uh… guys…you were crowing about it when it exonerated your client in the 1985 wrongful conviction but, now, you want to claim it’s unreliable and subject to adulteration? And, that cross-examination of DNA Lab Tech Sherry Culhane was a phenomenal waste of time. She contaminated the “control” with her own DNA (most likely sweat) and, that somehow, magically contaminated the actual bullet “wash” sample? Says who? A defense attorney? Jurors don’t care. There was only one shot at a DNA test (given the small amount of blood on the bullet) and, a deviation in the testing protocol occurred. No doubt! But, guys, it only matters to the jury what they believe the most credible expert witness says. And, as soon as the judge admits the evidence, based on the Frye standard, “In your opinion, based on a reasonable degree of scientific certainty, is this the DNA of Teresa Halbach?,” that’s it in my experience. The test is admissible if the expert says those magic words. The “reliability” of the test becomes a jury consideration and, sometimes, less is more.
I’ve never lost a case based on this argument and, in fact, in 1994, in my first civil jury trial, exactly this same tactic against my expert (impugning the world-renowned scientist who developed the field of study regarding this particular glue) cost the Defendant dearly when our jury awarded us $1.5 million for their destruction of my client’s lungs with their chemical. In my experience, jurors just try to be fair and, if they believed that Avery raped this young woman, that is going to be the end of this inquiry. She’s dead and gone and, therefore, the forest has been proven and the trees (each, isolated piece of evidence or mistake in gathering it) isn’t/aren’t going to get in the way of justice.
As Abad-Santos and Lopez also correctly point out, “Avery’s [defense] largely comes down to one piece of evidence: a blood vial” in the police evidence room from his 1985 conviction. It is essential because it’s the only “item used to discredit what is perhaps the most damning piece of evidence against Avery — his blood, found in Teresa Halbach’s SUV.” I think these 2 bloggers ignore Avery’s sweat under the RAV-4’s hood latch but, if the defense doesn’t, ultimately, prove that this “puncture” in the top of that vial came from the local cops, they are dead in the water with this defense. And, the defense’s chipping away at the bullet with Halbach’s DNA (found in Avery’s garage and fired from his rifle) is a huge waste of time. Because, if the cops didn’t plant the blood, they didn’t plant the bullet either and, this hangs Avery.
And, this implication that “if Avery shot Halbach in his garage, where’s the blood splatter and other DNA?” is NOT going to fly either guys. Anyone who ever watched one episode of the series Dexter or the Sopranos can answer that one for you. You just hang & put down plastic. And, remember those burned tires found in the same burn pile outside Avery’s trailer with pieces of Halbach’s corpse? Anyone who has been alive on this planet for at least 8 years knows how hot tires burn when they’re lit. No trace of plastic would have remained because very little trace of Halbach’s body remained. Tires burn like the fires of Hades and you can’t put them out. And, who would know that best? Someone (like me, my kid brothers or Steven Avery) who ever played/worked at a junk yard as a kid handling tires and knows what happens when a tire fire starts. Probably why witness Scott Tadych saw the flames shooting up into the sky, in that “bonfire” the night of Halbach’s murder.
And, the testimony of Forensic Anthropologist Dr. Leslie Eisenberrry was never impeached either. “So why would Avery leave bones right outside his home after making efforts to move them around his own family’s property?” How about this? No one ever said Avery burned the “entire” body in the burn pile outside his home. In fact, if the body had been dismembered (again ala Dexter), that would, just as logically, account for two things—the “hair” imprint in the Halbach blood located in the back portion of her SUV and, the small amount of blood in that same area. No one ever talks about that, although, Halbach’s tooth was found in the burn pile, again, this theory is not discounted. Because, if only her head and a portion of body parts were hauled in the SUV, one can draw one’s own conclusion. Remember my earlier concerns about Mr. Avery’s “serial” component. When fantasy becomes reality, the sexual component of dissecting a human body for these animals cannot be ignored. Is Avery a serial killer? I have no evidence to suggest that but, his creepy expressions and fascination with the evidence at his trial still makes the hair on the back of my neck tingle. And, guys, remember, it was also reported that, while in prison, Avery reputedly told an inmate that he was fascinated by building a sexual “torture chamber.”
This episode ends with the same ominous music and defense counsel’s statement that only two people could have pulled off this frame-up (and who better than a cop) as the camera focuses in on Manitowoc County Deputy James Lenk taking the stand. The obvious import is that: Lenk is alleged to have been in Avery’s garage during the search which found the bullet with Halbach’s DNA; Lenk should have stayed out of the 2007 investigation; Lenk (with an ax to grind with Avery) had a potential conflict of interest; therefore, Lenk planted the bullet. The problem? Again, there’s no actual evidence that this happened. See you next week.