It’s often said that a man should be judged by his actions, not his words. His words are, after all, ultimately empty if actions don’t support them.
“Making a Murder” puts a lot of weight behind Steven Avery’s words, and those of his attorney, Kathleen Zellner—words proclaiming his innocence, words alleging a conspiracy, words promising to prove his innocence.
“Making a Murderer’s” third episode, though, is notable not for those words, but for the lack of actions that support them and, more significantly, for failing to show the actions that directly contradict them.
I’m Dan O’Donnell and this is “Rebutting a Murderer.”
Words were what convicted Brendan Dassey, his own words sealing his fate as he told investigators a thorough, detailed account of how he and his uncle Steven Avery raped and murdered Teresa Halbach—an account that was corroborated at every step by physical evidence that pointed directly at Avery’s actions.
But it was Dassey’s words that put him in prison, but his attorneys pin their hopes on the investigators’ words getting him out.
"Once somebody is convicted, they have to move mountains to get out of prison," Dassey's attorney Laura Nirider says. "Our task is to upend an entire system that is now weighted in favor of the prosecutors, in favor of the state, in favor of keeping this conviction in place."
Nirider and her co-counsel Steven Drizin contend that this is because of the concept of “finality”—a concept that they claim was made nearly impossible to overcome by a change in the law.
"It used to be that the federal courts did not place as much weight on this concept of finality," Drizin says. "Then in 1996, the U.S. Congress really tied the hands of federal court judges in the ways in which that they're allowed to review state court decisions. The statute is known as AEDPA, which is known as the Anti-Terrorism and Effective Death Penalty Act."
The dramatic music playing beneath Drizin's words is a nice touch to reinforce the notion that somehow this law has made it all but impossible for federal courts to overturn state court decisions in what are known as “writs of habeas corpus.”
"Because of AEDPA, we have to show the federal court that when we told the state courts that the Constitution was violated and they disagreed with us, that the state court didn't just make a mistake, it made an unreasonable mistake," Nirider explains.
This isn’t nearly as great of a burden as it’s made out to be. Reasonability is generally the standard in the law. In changing the standard to an “unreasonable mistake,” Congress merely placed a burden on the defendant to show that the court’s mistake was the reason he is falsely imprisoned.
Say for example a trial court sustained a minor motion at trial that an appellate court ruled should have been overturned. If this error at trial didn’t have any actual bearing on the ultimate ruling, should the defendant really be set free because of it?
The reasonability standard is, well, reasonable to ensure that only material errors that actually affected the result of a trial are grounds for federal review. The law has no impact on a defendant’s state court appeals, and it does not eliminate the defendant’s ability to make a habeas petition in federal court—it just forces the defendant to demonstrate that the trial court’s error was material enough to impact the decision.
Dassey’s attorneys claim that this sets an impossible hurdle for a defendant to overcome, but the Supreme Court has repeatedly disagreed. AEDPA is most certainly constitutional, and the Court has refined and over the past two decades even strengthened its requirement that defendants prove that state trial court errors were unreasonable for them to successfully appeal in federal court.
Meanwhile, “Making a Murderer’s” third episode finds Zellner working on Avery’s appeal in state court.
"It's just incredible to me that the prosecution was able to pull this off," she says . "It is one of the all-time stupid cases, really. I just cannot imagine how people put this together."
More words. More aspersions cast on prosecutors and more promises to expose them. And now words from fire expert John DeHaan to supposedly back them up.
"One of the mythologies about destroying a body is that if I pour gasoline on it, that's a really hot fire and that's going to destroy the body," he says. "Well, no. The gasoline burns off in a couple minutes, scorches the skin, and just goes out."
"It just goes out?" Zellner asks.
"It just goes out," DeHaan answers. "To have flames in an open area 10-15 feet high, it would require an enormous fuel load."
"What kind of fuel would be required?" Zellner asks.
"You'd have to have a continuous supply."
"Well you'd have to have hundreds of gallons, right? You'd have to have a fuel tank."
"Yes."
Not necessarily. You could also have a seat from a van filled with polyurethane padding, which Avery did. And you could have far more tires than the two that Zellner and DeHaan pretend there were.
"This looks like the remains of maybe two tires," DeHaan says as he looks at pictures of the remains of the fire in Avery's burn pit. "Well those will help keep a body burning but they're not going to be a primary fuel to achieve this kind of destruction."
Two tires didn’t. At least six or seven and possibly many more tires did. Earl Avery, Steven’s father, told investigators that on November 2nd, 2005, his son told Brendan Dassey to get rid of steel belts from at least five or six tires that were near his burn pit. During Avery’s trial, Wisconsin’s foremost arson investigator, Department of Justice Special Agent Rodney Pevytoe, testified that the van seat’s polyurethane padding and the tires could have easily reduced a body to bone and ash in just a few hours.
And as for the bones that weren’t fully consumed, it was entirely likely that Avery moved them to his burn barrel along with Halbach’s clothes and personal effects like palm pilot, cell phone, and camera, where their charred remains were found along with more human bone fragments.
Even DeHaan admits that a burn barrel was a great place to consume the bones that just wouldn’t be completely consumed in Avery’s pit.
"The best thing, of course, is to put it in some sort of enclosure--preferably metal--which will reflect the radiant heat back into the location of the body," he says. "That ensures that there is enough radiant heat on the body to keep the fuel supply coming. There have been a number of cases across the U.S. where bodies have been disposed of in a front yard burn barrel."
Like, say, the burn barrel found behind Brendan Dassey’s home. Yet again, Zellner has unwittingly undercuts her own case. While she presents DeHaan’s statement as a “gotcha” moment that proves that the burning of Halbach’s body couldn’t have happened in the manner the state says it did, it actually demonstrates that it was entirely consistent with the state’s case.
Halbach’s charred remains were most definitely moved...but not to Avery’s burn pit, from Avery’s burn pit to the barrel where the pieces of bone that didn’t burn up in the fire were burned again.
There was no evidence that all of the bone fragments were moved to or from the burn pit or even that most of the bone fragments were; only that some of them were. And some of them were found in the burn barrel—along with Halbach’s personal effects found fused to the steel belts from the tires used as accelerant.
By far the most likely reason for this is that Avery saw that the bones didn’t completely burn up in the burn pit and then raked them up, bagged them, and burned them in the burn barrel.
A rake was found with steel belts from a burned tire caught in its teeth. Brendan’s brother Blaine Dassey said he saw Avery put a white plastic bag in the burn barrel. Earl Avery’s friend Robert Fabian saw Steven tending the fire in the burn barrel.
Expert testimony at trial from forensic pathologist Leslie Eisenberg concluded that bone fragments found in the burn pit were from every part of the body of a woman who was no more than 30-35 years old.
DNA expert Sherry Culhane testified that DNA pulled from a piece of a femur showed definitively that that femur belonged to Teresa Halbach. At trial, even Avery’s own forensic expert, Scott Fairgrieve, agreed with nearly every one of the prosecution’s conclusions about the burn pit and the bones found there.
“Making a Murderer” again raises the possibility that a bone that might have been from a human pelvis was found at the Radandt quarry, suggesting that Halbach’s bones were moved from there, there’s no evidence that that bone was actually human. It very well could have been an animal bone, especially since it was found with other animal bones.
Naturally, Zellner ignores this and the possibility that bones were moved from the burn pit to the burn barrel and not the other way around.
"Dr. DeHaan is very clear that it was impossible for her body to have been cremated in that burn pit," says Zellner. "He was positive that no human body had ever burned in that burn pit because of the lack of ash and lack of residue that he's seen in every one of the burned body cases that he's seen and he's seen more of those than anyone in the world."
Ultimately, though, this appeal to authority is misleading, as it implies that there are no other possibilities other than the conclusion that Dr. DeHaan draws. In fact, four other experts (including Avery’s own forensic expert) all contradicted that conclusion. The result is a war of words known in the law as a “battle of the experts.” The prosecution presents experts who say one thing, the defense presents experts who say something else.
Zellner has merely produced one expert who says something different than other experts who have said something else.
And the state’s experts were backed by both physical evidence and direct evidence of witnesses who saw a fire in the burn pit and Avery tending a fire in the burn barrel—the two places where Halbach’s charred remains were found.
This is the point at which Zellner’s words in “Making a Murderer” directly contradict her deeds in filing Avery’s appeal. She makes it seem in the show as though Dr. DeHaan’s statements are slam-dunk evidence of a conspiracy to frame Avery, she doesn’t use this claim as such in the 1,200 page post-conviction motion she filed in Sheboygan County Circuit Court.
Instead, she used it to bolster a claim of ineffective assistance of counsel. She used it to maintain that Avery’s trial attorneys were incompetent because they didn’t have an expert examine the actual remains in the quarry and the Avery burn pit—only pictures of that pit.
If trial defense counsel had obtained a competent forensic anthropologist who had performed a microscopic and histological examination of the suspected human bones found in the quarry, it would have conclusively established that Ms. Halbach's bones were transported to Mr. Avery's burn pit from another site.
That’s right; she is alleging that the brilliant attorneys from “Making a Murderer’s” first season, Dean Strang and Jerome Buting, were incompetent. And they, being the pros they are, aren’t insulted but understand completely what Zellner is doing.
"You don't have the luxury at this point if you're picking up the case this late of overlooking any possible reason for a new trial, any possible area of new evidence," Strang says. "Steven Avery's lawyers ought to be looking at ineffective assistance of counsel by Dean Strang and Jerry Buting just as they ought to be looking at every other possible area of newly discovered evidence or unlikely grounds for relief."
In laying out her case for appellate relief, Zellner doesn’t present any new evidence that would show that the bones were planted. In fact, in the section of her post-conviction motion devoted to new evidence, the bones and the burn pit are not mentioned.
This means that for all of her and her fire expert DeHaan’s words, she was unable to find any new evidence that the bones were planted or that the burn pit was not the primary place where Teresa Halbach’s body was burned.
As Zellner herself outlined, the new evidence she was able to present after extensive investigation was limited to the bullet that killed Halbach, Avery’s DNA on the hood latch of her SUV, and his DNA on her car key.
The court rejected all three of these arguments and denied the motion for a new trial last October. When Zellner filed another motion, she again presented no evidence that the bones were ever moved, instead relying on a claim that prosecutors didn’t share evidence with the defense at trial.
The court rejected this motion, too.
Zellner’s, and by extension “Making a Murderer’s” words about the burn pit and bones are thus revealed to be just words. As Zellner’s actions in actually bringing Avery’s case clearly demonstrate, there is no new evidence to support them.