"Rebutting a Murderer" Episode 1: Experimentation

Nearly three years ago, "Making a Murderer" was less a TV series than a force of nature, exposing systemic injustice in a murder trial in rural Wisconsin.

It was also one of the most dishonest documentaries I've ever seen.  I'm Dan O'Donnell and I would know.  I was a reporter who covered the trials of Steven Avery and Brendan Dassey and nearly three years ago what I saw in that documentary shocked me.

I knew the truth, and "Making a Murderer" wasn't showing it.  "Making a Murderer" was showing the truth that the murderers wanted you to see.  So nearly three years ago, I created a podcast to present the evidence that you didn't see; to rebut the murderers' case with one of my own.

Before I got into journalism, I graduated from the University of Wisconsin Law School, so I used my training and my experience covering this story for more than a decade to tell the other side of the story--the one that "Making a Murderer" didn't.

Now "Making a Murderer" is back and still telling the part of the story that its murderers want told.  So I'm back too to bring you the evidence that's left out, the facts that are glossed over, and the truth that you deserve to know.

I'm Dan O'Donnell and this is "Rebutting a Murderer."

 

The first episode of “Making a Murderer’s” second season opens with a retrospective on the impact of the first season, and its lengthy introduction goes out of its way to address criticisms of what very quickly became a cultural phenomenon...and demonized those it cast as its villains.

The intro also pays very brief lip service to the very substantive critique that the first season either mischaracterized or left out altogether the very damning evidence of Steven Avery’s and Brendan Dassey’s guilt.

Almost immediately, though, the filmmakers establish that the second season is still very much Steven Avery’s story, as they return to the family’s property and talk with his mother.

After she laments all of the Christmases she has spent without her son, Avery himself calls to bolster what is essentially a logical fallacy known as “argumentum ad populum”—an “argument to the people.”  Since Avery has received so many letters of support, he is innocent because the whole world seems to think he’s innocent.

He even comes out and says it.

"It seems like I got the whole world for me," he proudly declares.

The purpose of this is twofold: It reestablishes Avery as the sympathetic hero of the story and falsely suggests that very few people believe him to be guilty.  The same pattern is established with Dassey. 

"He loves all his supporters," says Dassey's mother Barb Tadych.  "He gets anywhere from 30 to 100 letters a week. And that was in the beginning and he's still getting them." 

Ultimately, though, what “Making a Murderer” is able to make people believe is largely irrelevant.  What matters is what Avery and Dassey are able to demonstrate through the presentation of evidence on appeal.

After Dassey won favorable rulings from a Magistrate Judge in Milwaukee and a three-judge panel of the Seventh Circuit Court of Appeals, the full Seventh Circuit ruled against him, finding:

Dassey spoke with the interrogators freely, after receiving and understanding Miranda warnings, and with his mother’s consent. The interrogation took place in a comfortable setting, without any physical coercion or intimidation, without even raised voices, and over a relatively brief time. Dassey provided many of the most damning details himself in response to open‐ended questions. On a number of occasions he resisted the interrogators’ strong suggestions on particular details. Also, the investigators made no specific promises of leniency.

The Seventh Circuit found that it most certainly wasn’t noted its decision that even the Magistrate Judge who ruled in Dassey’s favor recognized that his theory that Kachinsky was somehow acting as an agent of the prosecution totally lacked merit.  The Wisconsin Court of Appeals agreed in a separate action, and thus despite Dassey’s attorney’s claims, she was wholly unable to prove that Dassey received ineffective assistance of counsel by Len Kachinsky.

In part because of Dassey’s inability to present sufficient evidence of this or that his confession was coerced, both the Wisconsin Supreme Court and U.S. Supreme Court declined to review his case, meaning that barring the introduction of actual new evidence, he is out of chances.  

Barring any new evidence, so is Steven Avery.  Years before “Making a Murderer” premiered, a state appeals court affirmed his conviction and the State Supreme Court declined to hear his appeal.

Meanwhile, "Making a Murderer's" first episode features Avery's ex-fiancee Sandra Greenman painting a sympathetic picture of Avery and continues to maintain his innocence, “Making a Murderer” declines to mention his other ex-fiancee, Jodie Stachowski—who was featured prominently in the show’s first season.

There’s a good reason for that.  She told a producer with HLN Network’s “The Nancy Grace Show” that he threatened to kill her when they were together.

 

Greenman tells the “Making a Murderer” cameras that she had been working on Avery’s behalf for years, trying without any luck to get noted appellate attorney Kathleen Zellner to take his case.

But it was only after Zellner saw what a massive phenomenon “Making a Murderer” was that she decided to take Avery’s case.  And then she got right to work, focusing in particular on the bloodstains found in Teresa Halbach's SUV.

Zellner calls it the most significant evidence against Avery.

Well, there was also the bullet that was fired from Steven Avery’s gun found in Avery’s garage with Theresa Halbach’s DNA on it and her charred remains and personal items found in his burn barrel, but for the sake of arguments, let’s accept that premise.

Zellner brings in bloodstain analyst Stuart James to look at the blood Avery left near the ignition of Halbach’s RAV 4.

Because of the lack of blood everywhere, they theorize, the blood could not have possibly come from the cut on Avery’s finger.

"There was no blood on the steering wheel, nothing on the key," James asserts.

There wasn’t blood on the steering wheel, but it is simply not true that there was “nothing on the key.”  In fact, Avery’s sweat DNA was found on that key.  This episode never mentions that fact and instead focuses on the lack of blood everywhere in the car as somehow providing evidence that there couldn’t possibly be blood in the specific places in the car that Avery likely would have touched.

His blood was indeed found on the ignition, but Zellner makes it seem as though it was impossible for Avery to have put it there himself because of where exactly on the ignition it was found.

In a completely uncontrolled environment—a parking garage with some fake blood dropped on a hand (not flowing from a cut)—Zellner performs what she calls an experiment, but would more properly be described as a show.

The “experiment” is run just twice before Zellner declares that it would be impossible for Avery to have left blood on the ignition.  However, both times she runs it, the key is put into the ignition the exact same way.  The only difference is the amount of blood on the experimenter’s finger which, remember, is not flowing from a cut, but rather haphazardly dumped onto his hand.

The experiment never takes into account whether the blood could have been deposited on the ignition by Avery clumsily fumbling with the key and not putting it directly into the keyhole on the first try; say, if he was nervous and trying to move quickly because he had just killed someone and was trying to get rid of the body.

That possibility is never even entertained, and the experiment is presented as conclusive when it is only run twice in almost the exact same manner.

Zellner here has engaged in a logical fallacy known as argumentum ad ignorantium or “argument from ignorance.”  Because there is no blood everywhere in the car, she claims, it is impossible for there to be blood anywhere in the car and therefore the prosecution must have somehow planted the blood.

This presupposition is rather easily rebutted with a rather simple truth: Absence of evidence is not evidence of absence.  In other words, the fact that blood from Steven Avery’s finger is not distributed more evenly throughout the car does not preclude the possibility that blood from Steven Avery’s finger could have dripped in some places in the car.

Consider also the possibility that Avery was in the process of hastily concealing evidence of a murder. While he didn’t have time to or think it necessary to bandage his bleeding finger, is it not possible that he was actively trying to keep blood from dripping in the car, thereby leaving evidence tying him to the crime?

Even if efforts to keep his finger from dripping blood weren’t a direct attempt at keeping DNA evidence out of the car, Avery might very well have been simply holding his hand in such a way that blood wasn’t likely to flow freely from his finger.  Think of the last time you had a cut on your hand.  Before you were able to put a bandage on it, did you try to keep blood from dripping everywhere or did you just kind of let it drip everywhere?

This consciousness is never even raised as a possibility, though it is very likely that this was exactly what Avery was doing—trying to keep blood from dripping in the SUV and for the most part succeeding.

Zellner and her bloodstain experts then turn their attention to Halbach’s blood found in the trunk of the SUV, which investigators learned was from her hair when Brendan Dassey told them that he and Avery loaded her body in it in an effort to submerge the RAV 4 in a nearby pond.

They claim it was impossible that the blood actually came from Halbach's hair.

To test this, Zellner and her team again perform an experiment exactly twice in the same uncontrolled environment of the parking garage...using a mannequin weighted down to be the same weight as Halbach’s body.  Because they couldn’t get the blood to disperse in the exact same manner that it was dispersed on the door when Avery and Dassey put the actual body in the car, Zellner concludes that the blood couldn’t possibly have come from Halbach’s hair.

Then they try a third time after removing all of the weight from the mannequin.  Only then are they able 

Once again, this experiment is presented as somehow conclusive when it is anything but.  The weighted mannequin is thrown in the SUV in almost the exact same way both times—first with one experimenter and then with two.  How does Zellner know that that is the exact way that Halbach’s body was thrown in.  How does she know it was thrown at all and not put in far more clumsily—again, as one would expect if a couple of murder suspects were doing it very quickly?

Her conclusion derives from the same basic logical fallacy as does her conclusion about Avery’s blood in the car; that because her two experiments done in almost the exact same way both times didn’t show the evidence that actually existed in Halbach’s RAV 4, that evidence could not possibly have existed in Halbach’s RAV 4.

"Experimentation in the case is extremely important because you can test the theories of what you think happened," Zellner says.  "It's like if you could go to a crime scene when it was fresh and you can redo the whole thing.  That's what I'm doing: I'm recreating it."   

She certainly is, but because her experiments are not controlled and not performed nearly enough times to account for natural variations in the distribution of bloodstains, they are absolutely worthless as evidence.        

"It's demonstrably false what [Kratz] told them," Zellner declares.  "I intend to that on each piece of evidence that he presented to the jury." 

For her sake, one hopes she does a better job than she did with the bloodstains in the SUV.

 
Dan O'Donnell

Dan O'Donnell

Common Sense Central is edited by WISN's Dan O'Donnell. Dan provides unique conservative commentary and analysis of stories that the mainstream media often overlooks. Read more

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