Top-10 Stories of 2016 – Number two

Making of a Murder – Part Seven


We’re FINALLY up to the “framing defense” this week. Which, unfortunately for Steven Avery, just never gets off the ground.

By Pat Merriman

Netflix makes much ado about the fact that Manitowoc County deputies were supposed to have a very limited role in the search at the Avery junk yard. Unfortunately, this is NOT exactly true for one simple reason — this is a small rural county. Recall that their actual role, after handing the ball off to WI BCI and Calumet County was to provide “logistics and support,” NOT completely stay out of the crime scene.

Again, take a look at the huge expanse of the Avery compound —  some 40 acres. Civilian volunteers had to be recruited to help search it. It takes a lot of boots on the ground to search every square inch of that place with all its rat holes. And, the reality was NOT that Manitowoc County was barred from the premises but, rather, according to Calumet County Sgt. William Tyson, to avoid any later complaints from Avery (to protect the integrity of the investigation), they were not to search “unsupervised.”

But, because of the “logistics” of searching a huge junk yard, they were “teamed” with BCI/ Calumet cops not, barred. The term “barred” is from Steven Avery, no one else.

So, first up for Team Avery is Halbach’s car keys which they claim were “found” by Lt. James Lenk. The obvious import is that Lenk planted those keys because “why would Avery have kept them in his bedroom behind a book case.”

What is he stupid? OK … I can only refer you back to the TV series Dexter again and, my experience with serial killers. IF Avery falls into this category, and I have NO hard evidence to suggest that he does, killing is part of that killer’s ritual … his sexual fantasy if you will. And, between killings, what keeps this “dark passenger” under control is reliving the event until the pressure to kill again becomes too much to control. How? By keeping a “trophy” from the event close-at-hand. And, if someone grew up in an automobile graveyard and had a fetish for “dead” automobiles, a set of car keys in your room is one heck of a trophy. This theory is just as reasonable as the “dirty cops framed me” claim. And, I’m sorry, but, Steven Avery does not look like a person you would leave alone with your sister.

Calumet County Sgt. Tyson, who was with Lenk when the keys “fell out” during the third pass through this bedroom, says it best, “It would have been improbable” for those keys to be planted. Guys, anything is “possible” but, that’s not the standard in a criminal trial. And, remember, this particular room contained a lot of evidence that would take more than one pass to process.

Handcuffs, leg irons, the murder weapon, ad nauseum. And, the timing of the recovery or the fact that Lenk had been deposed a few days before is … well …  irrelevant, frankly. You just ignore evidence because you don’t like the investigator who found it? Because, at the end of the day, that’s what you’re trying to sell. And, having a defense investigator from Edwardsville, Ill., (with a population of 267,899) come in to a small, rural community and “opine” his theories about the search conducted here was too long or, improperly tainted is, well, absurd.

This entire episode really centers around Avery’s claim that Lt. Lenk or Sgt. Colburn planted the blood which dried in the victim’s SUV. That’s it. And, remember, the defendant has the burden of establishing that NOT the state in rebutting it. So, when the 11th hour FBI lab steps up here, Netflix seems to be implying that something shady was taking place because of the timing of the report as well as its findings. The conspiracy now grows, again, to include the FBI lab. But, remember, Avery has “speedy trial” rights (you can’t keep him languishing in jail forever) and, in a normal state homicide case, the FBI’s crime lab can’t help you because they are backed up for years. That all started with the 1932 Linbergh baby kidnapping in New Jersey. Simply put, the FBI lab at Quantico, Virginia is the Rolls Royce of forensic testing and, nothing else even comes close. Hence, why they have a huge caseload of just federal cases. State cases wait their place in line depending on the type of crime and the federal jurisdiction.

And, here’s the bad news for Steven Avery — Dr. Marc LeBeau, PhD (another Missouri boy), the actual head of the chemistry unit at FBI headquarters testified that Avery’s blood “almost certainly was not planted in Halbach’s car.” Now armchair conspiracy theorists want to violate the prime directive — if you weren’t there and, you really didn’t see it, you’re not entitled to an opinion about this trial. This jury heard the HEAD of the FBI’s lab say that Avery’s “framed me” defense was a lie. And, that’s the end of it as far as that jury will be concerned. Here’s what’s in playright now: (1) the Defense accuses the cops of planting evidence; (2) Avery has speedy trial rights so we are going to trial ASAP; (3) the FBI did not get the lab tests done until after this trial started; (4) under normal circumstances, the state would not be allowed to bring in those lab results because there was “late disclosure” to the defense; but, (5) a defendant waives that claim when he raises the specter of police corruption. The same reason that Mr. LeBeau bumped this test to the top of the list at Quantico.

Avery’s lead attorney, Dean Strang, even threw out the O.J. Simpson gauntlet to Judge Willis in arguing not to allow the test results, carte blanche, because they were unreliable. But, Willis correctly ruled that Strang opened the door to this test and, he could cross-examine the FBI chemist if he wanted to. Again, the only foundation for LeBeau’s opinion? “Based on a reasonable degree of scientific certainty I believe that…”

And, Judge Willis also correctly pointed out something else—the defense had over 7 months to order their own test of the blood in the 1985 vial vs other bloodstains in the SUV if they believed that the preservative EDTA was present. You know, definitely prove Avery was framed. What’s good for the goose, as they say.

EDTA is a synthetic chemical that is used in almost every blood vial to preserve blood to keep if from clotting and drying up and, it works for decades. The FBI tested samples of Avery’s blood found in three places in Halbach’s SUV and found no EDTA. Now, because of the Avery team’s gambit in just throwing out “planted blood evidence” with no attempt to analyze for EDTA on their own behalf, the battle of the experts begins in this episode and, it does NOT bode well for Avery. Dr. Marc LeBeau, PhD, is an FBI Unit Chief. And, despite the lurid comments on the Internet about his moustache, those credentials are virtually impossible to beat. His resume reads that he has been a forensic chemist & toxicologist for the FBI since 1994, has testified as an expert throughout the United States, has both a Bachelor of Arts (Cum Laude) in Chemistry and Criminal Justice and, a Master of Science in Forensic Science. The guy is also the author of “numerous peer-reviewed papers/ articles in scientific journals” and, actually trains other scientists in this stuff. Guys, he is the guru of forensic science as far as any jury is going to believe.

So, after what I consider to be a totally ineffective cross examination by Avery’s attorney, the battle of the experts shifts to the Defense’s paid hireling Janine Arvizu. Who, you might ask, is Ms. Arvizu? Well, she will (for a fee) travel to your jurisdiction, from her company Consolidated Technical Services, Inc., in Albuquerque, NM and testify that she is a chemist (B.S. Biochemistry & ABD Chemistry) who claims to be a “quality consultant”. Which means, for a price, she can poke holes in any cocaine, DNA, urine, blood alcohol, or other forensic case which does not, in her opinion, meet her “independent” standards. Her website lists a lurid list of claims that forensic science has finally come full circle since 1932. Now, it’s just, well, unreliable because of poor quality control, ineffective internal reviews, inadequate documentation of laboratory work, inappropriately trained or unqualified analysts and, a complete lack of independent oversight and monitoring. Most importantly, she is endorsed by the National Association of Criminal Defense Lawyers. Enough said. Oh, and if Dr. LeBeau’s moustache is fair game, why isn’t Arvizu’s lack of false teeth?

Suffice it to say that the NY Daily News reports that Attorney Strang is still, in 2016, yet to be successful in having any scientist prove that there was any EDTA in those incriminating SUV blood stains and, until that is proven, or, unless vampires surreptitiously sucked out Avery’s blood while he slept and delivered to Manitowoc County investigators, that totally destroys the argument that the latter framed him. See you next week.

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