"Rebutting a Murderer" Episode 5: Bloody Lies

In a very real sense, the most important thing each of us possesses is our reputation.  It is what defines us and, if we’re not careful, it can be lost in an instant.

One mistake can forever brand us, one bad decision can forever haunt us, and one lie can forever color who we are in the eyes of others.

All it takes is one moment of dishonesty, one quickly regretted fib, to plant the seeds of doubt about our word and chip away at a reputation we’ve spent a lifetime building.

All it takes is one lie.

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


"I inherited this defense theory that Steven Avery's blood in the RAV had come from the 1996 blood vial," Avery's attorney Kathleen Zellner says.  "So I started focusing on the viability of that theory and whether I wanted to continue with it." 

That theory was “Making a Murderer’s” great lie; a moment so dishonest that it couldn’t help but to call into question everything else the show has claimed.

"This is a red-letter day for the defense," Steven Avery's trial attorney Jerome Buting says in an excited phone call to his partner, Dean Strang featured in "Making a Murderer's" first season.  "It could not have been better.  The seal was clearly broken on the outside of the box and inside the box is a Styrofoam kit. The seal is broken in that.  We pulled the Styrofoam halves apart and there, in all of its glory, was a test tube that said "Steven Avery," inmate number, everything on it.

"The blood is liquid.  And get this.  Right in the center of the top of the tube is a little tiny hole.  Just about the size of a hypodermic needle."

Neither Jerome Buting nor “Making a Murderer” ever explains that the hole in the blood vial wasn’t from someone removing blood from that vial, it was from someone taking blood from Steven Avery and putting it in that vial.

In fact, prison nurse Marlene Kraintz was set to testify during Avery’s trial that she put the hole in the blood vial  when she drew Avery’s blood.  The only reason she didn’t was that prosecutors didn’t believe the defense had any evidence at all that blood from that vial was planted.

In other words, Avery’s defense team knew almost immediately why the vial had a hole in it and never even raised the issue at trial.  “Making a Murderer’s” filmmakers knew that, too, yet they still presented it as perhaps the most damning evidence of a conspiracy to frame Avery.

"Think about it, Dean," Buting continues.  "If LabCorp didn't stick the needle through the top, then who did?  Some officer went into that file, opened it up, took a sample of Steven Avery's blood and planted it in the RAV4."

That moment fooled millions of “Making a Murderer” viewers into believing Avery’s blood was planted and even though it has been thoroughly debunked, the show still has not admitted that it was not at all what it appeared to be.

Not even now, as Avery’s appellate attorney Kathleen Zellner pursues an ineffective assistance of counsel case centered on Buting and Dean Strang’s handling of the blood evidence.

"I began to explore other places the blood could have come from, she says."  

And both she and the show have settled on a theory that is nearly as misleading.

"For years, I mean all the way back to 2005, [Avery] has talked about the fact that the blood was taken from his trailer on the night of November 3rd," Zellner explains.  "He was bleeding and that he bled in the sink and on the floor."

"They put it there from my bathroom sink," Avery said in a phone call to a reporter after his arrest.   

And how would investigators get access to the bathroom sink in Avery’s trailer?  Zellner implies that they broke in after she finds what she declares definitively are pry marks on the trailer’s front door.

"Would there be any reason that Steven would have a pry bar?" she asks his brother.  "Because it looks like a pry bar was used to open his trailer." 

Let’s assume for the sake of arguments that these are in fact pry marks.  The only evidence that they are is that Avery said they are, saying in an affidavit that six days after Teresa Halbach’s murder, he thought someone had pried open his trailer.  Naturally, since Avery was at the time trying to claim that investigators snuck into his home to get blood from his sink to plant in the SUV that had been found on Avery’s property the same day, he had ample motivation to lie.

Forget about Avery’s incredible incentive to lie about this, let’s take his claim at face value.  Does Zellner ever provide evidence that the marks were in fact pry marks?  She does not.  The marks are mentioned just once in her lengthy post-conviction motion for a new trial and she uses only Avery’s affidavit to support the claim that someone pried open Avery’s trailer.

One would think a crime scene expert would have been able to determine rather quickly whether a door had been pried open, and it’s remarkably telling that Zellner has no expert make any such claim.

Meanwhile, an order keeping Dassey in prison pending the results of his appeal is presented in “Making a Murderer” as a shock and something of a tragedy, but it was not at all surprising.  For a defendant to be released while a federal appeal is pending, he must show two things: That he will not commit further crimes or run from the law while he is out and that he is likely to win on the issue before the court on appeal.

In keeping Dassey in prison, a three judge panel of the Seventh Circuit Court of Appeals was simply not convinced that Dassey would be able to show on appeal that his confession was coerced and therefore not voluntary.

It turns out that panel was correct, because a few months later, the full Seventh Circuit ruled definitively that Dassey’s confession was voluntary and he was properly convicted.  The U.S. Supreme Court declined to hear Dassey’s appeal, meaning that it did not believe that there was a novel issue of Constitutional law raised by the case that would merit Supreme Court intervention.

The Dassey interrogation wasn’t some extraordinary miscarriage of justice.  It was just a routine interrogation that produced a damning confession.

To test her theory that blood from Avery’s sink was collected and then planted in Teresa Halbach’s SUV, Zellner enlists blood spatter expert Stuart James.

"So let's talk about the blood in the car," Zellner says.  "We've got a description by the Wisconsin Crime Lab that on the carpet, they found flakes.  And I'm talking about the carpet that's right in front of the driver's seat.  So there were blood flakes on this carpet and the analyst picked those flakes up with tweezers."

Unless you have a considerable amount of blood on a carpet, you're not necessarily going to see flakes or drying effect because with one or two drops or three drops, it's going to absorb right into the carpet," James explains.  "To see flaking like that visually would be probably not very likely."

There is a rather large difference between “not very likely” and “impossible,” however, and yet again Zellner’s unscientific scientific testing undercuts her claim.  She drips a few drops of blood on the same sort of carpet found in Halbach’s RAV 4—essentially doing the experiment once—and then claiming that no drops of blood anywhere under any circumstance could produce flakes.

If this seems rather dubious, it is.  Zellner never explains in either “Making a Murderer’s” fifth episode or in her lengthy post-conviction motion how Dr. James can be so certain that the blood was taken from the sink and planted in the car...especially when there is no evidence that there ever even was blood in the sink to begin with.

The only one to ever see that blood was Steven Avery.  Consider this: Avery admitted that he had been bleeding from a cut on his finger and that blood from that cut dripped in his sink.  Yet it is impossible that it also dripped in Halbach’s SUV?  Even Zellner’s own blood spatter expert admits that it’s possible (though he claims it’s unlikely) that Avery bled in that SUV in the exact manner in which the prosecution said he did.

If it seems like Zellner is putting a lot of weight behind Steven Avery’s truthfulness about the cut, she apparently thought so, too, since she didn’t actually use the results of forensic testing on the blood to make a case that it was definitively planted; she merely uses the blood evidence to bolster her ineffective assistance of counsel case.

There is a big difference in the use of this evidence that she tries to explain away by claiming that it would be much easier to prove Steven Avery’s innocence through an ineffective assistance argument than through evidence proving that his blood was definitely planted in the car.

She can’t prove that, though, and she knows she can’t prove that, so she instead uses vague pronouncements by an expert she’s paying to make such pronouncements to make the case that Strang and Buting should have hired their own blood spatter expert at trial.       

"I still believe if you just had a blood spatter expert," she laments.  "You know, I've one cases just on blood spatter.  If you could have definitively taken one piece of evidence and shown it was planted.... It's not like this would have cost hundreds of thousands of dollars.  You could have gotten experts for, I think, 20 grand." 

Wait, wait, wait, wait.  Zellner has a blood spatter expert.  She’s won cases just on blood spatter alone. Why couldn’t her expert definitively take down one piece of evidence and show it was planted?

The fact is that Dr. James couldn’t definitively prove the blood was planted.  If he could, that would have been the crux of Zellner’s entire case because it would have cast substantial doubt on the verdict at trial.

"A lot of experts will help you just if you're in that situation," she laughs.  "I mean this was child's play for Stuart James.  He could tell immediately the blood spatter testimony was just completely wrong."

Oh really?  If that’s the case, then why when Zellner presents what she claims is new evidence to the Sheboygan County Circuit Court on appeal does she focus only on DNA from the hood latch, DNA from the key, and ballistic testing done on a bullet found in Avery’s garage?

Why doesn't she focus on the blood in the SUV as new evidence, too?

"It's hard to say that someone is ineffective," says Zellner.  "But when the state's got 14 experts and you've got two, there's something dramatically wrong."

What Zellner is saying here is that Strang and Buting were ineffective because they didn’t pay someone like Stuart James 20 grand to say what whatever it was that they wanted him to say.

The reality is that if Zellner’s blood spatter expert really had bombshell evidence that would disprove the prosecution’s entire theory of the case, she would have hammered it in every appeal and every motion she filed.

Instead, she used it only to claim that Buting and Strang were wrong not to hire someone like Stuart James to bolster what is still an entirely unproven blood planting theory.

A second component of Zellner’s ineffective assistance argument is that Strang and Buting failed to argue forcefully enough that someone besides Steven Avery could have murdered Teresa Halbach.

In Wisconsin, for a defendant to argue at trial that a third party committed the crime for which he is charged, he must meet strict standards set by the Wisconsin Supreme Court in State of Wisconsin v. Denny.  There, the Court held that “evidence that simply affords a possible ground of suspicion against another person should not be admissible. Otherwise, a defendant could conceivably produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased degenerating the proceedings into a trial of collateral issues.”

The Court set up what it called “a bright line standard requiring that three factors be present, i.e., motive, opportunity and direct connection.”

This means that Avery’s defense was barred from claiming at trial that someone else killed Teresa Halbach unless it could shows that that person had a clear motive to kill her, an opportunity to kill her, and was in close physical proximity to the crime scene.

The Denny standard was set up to prevent guilty parties from wildly claiming without any actual evidence that an innocent person actually committed the crime...an innocent person like Halbach’s friend Ryan Hillegas.

Hillegas and Halbach dated off and on for several years and were good friends. After Halbach disappeared, Hillegas helped the Halbach family coordinate the search effort.  “Making a Murderer” makes it seem as though there was deep tension between the two in the months before her murder, but her family never mentioned it.

“Making a Murderer” also finds it suspicious that Hillegas was never asked to provide an alibi for the night that Halbach disappeared.  This is most likely because there is and never has been a single shred of actual evidence tying him to the crime in any possible way.

In fact, the best that Kathleen Zellner can muster is Hillegas’ claims about a broken parking light on Halbach’s SUV.

"One of the most suspicious parts of the case is his story about the parking light on Teresa's vehicle," she says.  "He told police that he had talked to family and friends and had determined that Teresa had broken the light before October 31st, made an insurance claim, taken the cash payment, but she kept the money and didn't get the car repaired.

"That's interesting because that's elaborate, and over the years one of the things you learn is that people who lie usually have real elaborate lies."    

You know who else has real elaborate, detailed stories?  People who are telling the truth.  But of course, it’s never even considered a possibility that Hillegas is telling the truth.

"The first thing that I checked out was whether that parking light was broken when she went and visited some of her other appointments that day," says Zellner.  "Her client, Mr. Schmitz, said that the car looked new. The car is six years old.  Our interpretation of that was he didn't see any damage; the car wasn't banged up or anything."

Oh really. He remembers that 13 years later, huh?  Okay.

"So then we went back to the insurance company and they said that she never made a claim about the parking light," Zellner says.  "She made a claim about the windshield wiper--this little tiny expense--but she didn't make a claim about this really significant damage to the front of her vehicle."

She didn’t make a claim with her insurance.  Zellner never says anything about making a claim with someone else’s insurance.  In fact, it’s far more likely that Halbach would have made a third party claim to repair her parking light because it was far more likely than anything else that someone else hit it, either in a fender bender or backing into it in a parking lot.

And the possibility is never raised that for such a minor accident, Halbach and the other driver who hit her agreed not to get insurance involved at all and the other driver merely cut her a check out of pocket to pay for the damage.

To suggest that the fact that she didn’t make a claim with her insurance proves that Hillegas was lying—that the taillight must have actually been broken when the real killer drove Halbach’s SUV through an old car the Averys had blocking the entrance to their salvage lot—is one of the more dishonest claims that Zellner and “Making a Murderer” have made this season.

"The most important thing is the 'Missing' poster," explains Zellner.  "When you put out a description of a car and it's a detailed description, if it has any body damage you put that on there because that would have stood out above anything else if people have seen that RAV driving around with that parking light knocked out."

This more dishonesty, as it discounts the possibility that Hillegas simply forgot about the damage to the SUV when the family was making the missing posters and then remembered it later.  Seriously, how well could you remember all of the dents and dings to your significant other’s car right now?  How about a friend?

None of this stops Zellner from jumping to a rather remarkable conclusion.

"The parking light was not damaged before she was murdered.  It was damaged as part of the murder and Mr. Hillegas connected himself to the parking light and that is a huge piece of evidence linking him to the crime."  

No, it actually isn’t.  It actually demonstrates why Wisconsin has the Denny standard to begin with—to prevent lawyers like Kathleen Zellner from wildly claiming without any actual evidence that people like Ryan Hillegas committed the crimes for which their clients have been convicted.  Under Denny, Zellner needs to show that Hillegas had motive, opportunity, and direct connection.

The only motive she could show is that he and Halbach weren’t dating at the time of her death.  The only opportunity she could show isn’t supported by any evidence, only by her claim that he might have lied about a taillight.  And she has yet to show a direct connection at all.

Yet she still attempts to destroy Hillegas’ reputation by claiming without evidence that he might be a murderer.

Reputation, remember, might be the most important thing each of us possesses.  It is what defines us and, if we’re not careful, it can be lost or damaged in an instant.

One wonders whose reputation will be ultimately more damaged by these wild, desperate, totally unsubstantiated allegations; Ryan Hillegas’...or Kathleen Zellner’s?

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


Content Goes Here