***Note: Contains Making a Murderer Spoilers***

The third episode of Making a Murderer is entitled “The Plight of the Accused” and focuses on how difficult it was for Steven Avery to defend himself against murder charges; specifically because, as his attorney Walt Kelly claimed, he did not enjoy a presumption of innocence.

“The transformation from Steven Avery as wronged victim of a miscarriage of justice to Steven Avery, the horrendous murderer of an innocent young woman... was breathtaking,” said Avery’s civil attorney Walt Kelly.  

“It left me stunned. The absence of any serious commentary that the presumption of innocence that he enjoys may, in fact, be valid," he continues. "That there should not be a rush to judgment. I thought it was just awesome how endangered he is as an accused.”

Never mind the fact that at a preliminary hearing, prosecutors provided evidence that Teresa Halbach’s RAV 4 was found hidden on Avery’s property, his DNA was found in that RAV 4 and on Halbach’s car key found in his bedroom, and that her bone fragments were found intertwined with steel belts in a burn pit near his front door.

Avery’s attorneys thought it was improper for people to view that evidence and conclude that it tends to point to Steven Avery’s guilt.  They thought no one should jump to any such conclusions.

That is a central theme of Episode 3; that jumping to conclusions—and not relying on actual physical evidence—led to Steven Avery’s arrest and the subsequent criminal charges against him.

However, the series has no problem showing people who jumped to the conclusion that investigators somehow planted evidence.  That is a conclusion to which the filmmakers want their audience to jump.

So they talked to conspiracy theorists in a local bar.  Seriously, a local bar.

“I really do think he was framed. You know? There's a lot that points to where the Sheriff's Department could've had something to do with it,” said one woman.

“I don't care if they hate me,” said another.  “Somehow, some way, something got set up. I don't care who it was. And they can say, ‘Oh, you really believe that Manitowoc Police Department and the FBI and everybody came in and they set this all up just to have Steven Avery guilty of this thing?’ Yes, I do. I'm sorry. Yes, I do.”

There is literally no way that this barfly could possibly have any evidence to support this conclusion, but the show allows her to make a wild and very defamatory allegation anyway.

Unfortunately for Avery, though, speculation from random tavern-goers is generally not considered admissible evidence in a court of law.

After a brief stop at the bar for some conspiracy theorizing, Making a Murderer presents Avery’s settlement of his lawsuit against Manitowoc County for what is presented as a paltry sum of $400,000.

Avery, of course, needs the money to pay for a criminal defense attorney, but the show’s central premise—that the Manitowoc County Sheriff’s Department framed Avery for murder to avoid having to pay $36 million relies on a rather large presumption; namely, that Avery would have settled.

While he needed money, it would have been very possible that he could have kept his lawsuit going and had his father sell his business to help pay for a defense attorney.

After all, the show makes clear that Allan Avery had unsuccessfully tried to put up his property as bond for Steven, and the two men discuss selling the salvage yard to help Steven out with his defense.  Allan believed his son was innocent and, as such, would not have hesitated to sell the business—something the show indicates that he was planning to do anyway so that he could retire.

Although the Avery family would have incurred a short-term loss of several hundred thousand dollars, they would have still been in line for a $36 million payout or—more likely—a settlement in the neighborhood of several million dollars if the evidence of intentional deprivation of civil rights was really as strong as Avery’s civil attorneys claimed that it was.

But Avery does settle and uses the money to hire Jerome Buting and Dean Strang, whose first comments in the series are again speculation based only on the investigators’ supposed motives.

“I didn't see them plant evidence with my own two eyes,” he says.  “I didn't see it. But do I understand how human beings might be tempted to plant evidence under the circumstances in which the Manitowoc County Sheriff's Department found itself after Steven's exoneration, of the lawsuit, of the Avery Commission, of the governor hugging Steven and holding him up as an example of the criminal justice system gone wrong? Do I have any difficulty understanding what human emotions might have driven police officers to want to augment or confirm their beliefs that he must have killed Teresa Halbach? I don't have any difficulty understanding those human emotions at all.”

That doesn’t mean that they did.  

Again, an extraordinary allegation requires extraordinary evidence to support it, and Episode 3 doesn’t present any other than the fact that Manitowoc County Sheriff’s Lieutenant James Lenk was the investigator who found Teresa Halbach’s RAV 4 key in Steven Avery’s bedroom.    

“They conclude that he's guilty right off the bat,” Buting adds. “This was all the way open... And they thought, 'We're gonna make sure he's convicted.' And they helped it along by planting his blood in the RAV4 and by planting that key in his bedroom.”

Here’s the problem: Avery’s DNA was found on that key.  And his DNA was found in six different places in and on Halbach’s car.  Avery’s defense centered on the possibility that investigators planted blood from a blood sample they had taken of him years earlier on the crime scene.

The DNA on Halbach’s car key wasn’t from blood.  It was from either sweat or skin cells.  Avery’s sweat DNA was also found on the hood latch of Halbach’s RAV 4.

The defense never even raised the possibility that the Manitowoc County Sheriff’s Department had any access to Steven Avery’s sweat, so how would they have obtained sweat and/or skin cells from him to plant on the key and hood latch?

Avery never once claimed that investigators collected sweat or other DNA evidence from him, and his attorneys never presented any evidence that they would have had sweat.

Yet sweat was found in Teresa Halbach’s car and on her car key.  Moreover, Avery’s nephew, Brendan Dassey, said that when Avery answered the door on the afternoon of October 31st, 2005, Avery was very sweaty.

In a news conference, special prosecutor Ken Kratz said:

Brendan says that he knocks at least three times and has to wait until the person he knows as his uncle, who is partially dressed, who is full of sweat... opens the door and greets his 16-year-old nephew. Brendan accompanies his sweaty 43-year-old uncle down the hallway to Steven Avery's bedroom. And there they find Teresa Halbach completely naked and shackled to the bed.

Making a Murderer omits the fact that Avery had in fact just purchased handcuffs and leg irons, which he told investigators were for kinky sex with his girlfriend.

Years earlier, when Avery was in prison, he told fellow inmates that he wanted to torture and rape women when he got out.  He even drew diagrams of a sex dungeon that he planned to build.

And Brendan Dassey’s statements to investigators seemed to indicate that Avery had finally put these plans in action…with a photographer from Auto Trader magazine who he knew from six previous trips to his property and with whom he very obviously was infatuated.

Remember, he called her cell phone from his three times that day, twice using *67 to conceal his number and when he called Auto Trader to set up the photography session, he specifically requested Halbach.

Moreover, Dassey’s confession is corroborated by physical evidence—that a sweaty Steven Avery used his handcuffs and leg irons in the rape of a young woman.

Both Dassey and Avery said they were together on the 31st.  Coincidentally enough, they said they happened to be cleaning the very same garage where Dassey told investigators Avery shot Halbach to death.

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 that woman?

Avery also admitted in a phone call with his sister, Dassey’s mother, that he and Dassey had a bonfire the night of the 31st.

“That night he came over, we had the bonfire and he was home by 9:00, 'cause Jodi called me at 9:00, and I was in the house already,” he said.

So Avery and Dassey are accused of killing a woman in Avery’s garage and then burning her body in a bonfire…and they both admit to cleaning that garage and then having a bonfire.

How does Avery’s defense counter this most unusual and very damning coincidence?

By engaging in a logical fallacy known as “argumentum ad populum” (“appeal to the people”), supposing that because many people believe that Steven Avery is innocent, then it must be true.

“They'd been working for about four months trying to build a case against Steven Avery and there were still a fair number of people out there who said, ‘I'm not convinced. I think Steven Avery might be innocent. You know, there may be more to what he says than that,’” Buting maintains.

What he says is that the Manitowoc County Sheriff’s Department set him up, planted evidence against him, helped the case against him along.  Yet in the third episode of Making a Murderer, Avery’s attorneys present no affirmative evidence to support this.

There is no DNA from Lt. James Lenk on the key that he supposedly planted in Avery’s room.  There is no DNA evidence from any law enforcement officer found on Halbach’s car, which they supposedly planted on Avery’s property.

No other investigator from any of the dozens of law enforcement agencies present during the searches of the Avery property reported seeing anyone from Manitowoc County planting evidence or even acting suspiciously.

Instead, Avery’s lawyers cast aspersions on the two investigators who interrogated Brendan Dassey, as his mother, Barb Janda, claims that they questioned Dassey without ever talking to her.

“They knew they could get to Brendan because he's a slow learner,” she says. “They told him that they talked to me and it was OK for them to talk to him. And it wasn't. They never called me. They never let me know. They just went and done it.”

But in an on-scene graphic, the series admits that the two interrogators did talk with Janda before interviewing Dassey, suggesting that Janda was lying.

Of course, Making a Murderer never follows up on this potential lie, because it would make Janda look less credible.

Instead, they focus on the interrogation itself.  The investigators aren’t bullying, they aren’t threatening, they aren’t overbearing.  They’re very calm but very insistent that they know Dassey is lying to them.

That’s generally how interrogations go when the investigators have physical evidence that contradicts what the suspect is telling them.

This sort of tactic is presented as somehow outside the norm for interrogations, when in fact it is very common.

But the defense presents it as a horribly unethical practice that got an innocent boy to falsely confess.

“When you look at him, he's just sort of sitting there with these long pauses and he... You can almost see, you know, the wheels in his head turning however slowly, saying, ‘What do they want from me?’” Buting theorizes. “And he's guessing.”  

One could also very easily surmise that those long pauses were the wheels in his head turning however slowly trying to figure out a way not to say that Avery shot Teresa Halbach in the head.

Buting makes a great deal out of the fact that the interrogators had been trying unsuccessfully to get Dassey to admit this, but he didn’t.  Finally, one of the investigators gets frustrated and finally asks him plainly: “Who shot her in the head?”

“He did,” Dassey responds.

The answer came almost instantly.  Dassey didn’t say “No one shot her.”  He didn’t say “I shot her.”  He said his uncle Steven shot her.  That is corroborated by Halbach’s DNA on a bullet that was proven to have been fired from a gun Avery kept above his bed.

Once again, physical evidence corroborates Dassey’s confession, but the show is more concerned with the manner in which Dassey confessed.

“Another troubling aspect was the fact that Brendan didn't really understand the precariousness of his own position,” says Professor Lawrence White, the defense’s confession expert.  “He has no understanding that he's not going to be released from custody at this point. He has just admitted to really awful crimes.”

No, he confessed that his uncle admitted to killing Halbach.  He may have thought that because he only confessed to lesser crimes, he could conceivably post bail.

The fact that he doesn’t understand the intricacies of when and how someone is released from custody ahead of a trial doesn’t preclude the very likely possibility that he was telling the truth about what he and Avery did to Halbach.

But Strang disagrees, saying:

It's not that there was a lack of physical evidence to corroborate Brendan, it's that there was a wealth of physical evidence to disprove the statements attributed to him. You know, he describes this horrible, bloody episode of stabbing and... and throat-slitting on a bed while this woman supposedly is handcuffed to the bed. There's no blood. There's no blood on the mattress. There's no blood on the sheets. There's no blood on the floor. There's no blood on the wall. There's no blood. Didn't happen.

How much blood would be on the sheets?  How much blood should be there?  Is there a set amount that would have been impossible to clean up given enough time?

What if Halbach was stabbed but, because it was not a fatal wound, she didn’t bleed all that much at all?

And what if she did bleed on the sheets but Avery got rid of those sheets and replaced them with another set at some point in the four days between when Halbach disappeared and when she was first reported missing.

Avery and Dassey had plenty of time to clean up a crime scene, but because Making a Murderer depicts both as quite stupid, it presupposes that they are simply too incompetent to clean up after themselves.

And it presupposes that there would have been simply too much blood for them to clean up.  How does anyone know how much or how little blood was in the bedroom or in the garage?  How does anyone know how much blood should have been there? And how does anyone know how much would be “impossible” to clean up?

Remember, Dassey said he was with Avery that night.  He said he the two of them were cleaning the garage.  The same garage in which Teresa Halbach died.  He admitted he was cleaning it before joining Avery for a bonfire.  The same bonfire that Teresa Halbach’s body was burned in.

And Dassey’s statement that he was helping to clean up the garage is also corroborated by physical evidence.

When he returned home from the bonfire that night, his mother asked him why his jeans were stained with bleach.

It was because he had been cleaning.

Click here for Rebutting a Murderer: Episode 4

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