"Rebutting a Murderer" Episode 6: The Real Key

At the heart of every criminal case—every case in the law, really—there is a key.  There is a piece of evidence so critical that the case itself turns on it.

In the case of Teresa Halbach’s murder, the key is literally the key.

And the key to understanding it is to understand that everything “Making a Murderer” has told you about it is wrong.

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

 

The most vulnerable piece of evidence to attack is the key," says Avery’s attorney Kathleen Zellner. "That's because of the evidence the state presented. The key isn't found until there have been repeated searches of Avery's trailer. But overriding all of that is Steven Avery's DNA on the key."

First of all, she isn’t telling the truth about how the key was found.  There weren’t repeated searches of Avery’s trailer at all.  There was one.  And the key was found during the first search of the bookcase next to Avery’s bed.

On November 5th, 2005—the day that Teresa Halbach’s RAV 4 was found in the Avery scrapyard—an investigative team began searching the Avery property for Halbach’s body.  Yet as the Wisconsin Court of Appeals noted in its decision against Avery, investigators never performed a full search of Avery’s trailer that day.

[Special Investigator Tom] Fassbender testified that most of the investigators in the trailer had already been working for twelve hours or more and exhaustion and safety issues were becoming factors that could affect the searchers’ ability to locate and collect evidence. In addition, there was “a horrendous rainstorm going on” that created a risk of evidence being destroyed or lost as officers went in and out of  the trailer to get equipment. 

Thus, the officers were focused on looking for the type of evidence that would be most at risk of being destroyed under those conditions.  Fassbender testified that in debriefing the officers that night, he was telling people: “[W]e are not done in that house.”  Fassbender testified, as of Saturday night, the trailer “was still part of my scene.  This is an ongoing search.”

The search, however, was suspended.  The next day, investigators did indeed enter Avery’s trailer, but only to obtain items that they had noticed the night before and listed in reports—most notably Avery’s guns.  Technicians from the Wisconsin State Crime Lab then went in to swab for DNA but did not perform any sort of search of the trailer.

The following day, investigators entered the trailer again but never entered Avery’s bedroom at all. They went in only to get the serial number from Avery’s computer.

Only on November 8th did the search that was suspended on November 5th resume, and it was during that search of Avery’s bedroom—the first search of Avery’s bedroom—that the key was found.

The officer who found it, Sgt. Andrew Colborn, testified that this was the first time any investigators had gone room-by-room through the trailer looking for evidence and that they were instructed to collect the large number of pornographic photos of Avery’s ex-wife and girlfriend that he had kept in his bookcase.

Colborn said he was frustrated and disgusted at having to sort through all of the pictures and he slammed other items he found in the bookcase back into it when he was searching it.  Because he had pulled the bookcase out from the wall to get better access to its contents, he picked it up to move it back when he was finished.  At that point, the key fell out of the back.  Photos of the bookcase submitted as evidence showed that the back panel was loose from the interior, making it easy for a key concealed in it to fall out onto the floor when the bookcase was moved.

“Making a Murderer” has claimed for three years now that the key was found only after repeated intense searches of the bedroom—a claim it has Kathleen Zellner make again—but it simply isn’t true.

It was found during the first search of the bedroom and the first search of the bookcase.

Zellner’s claim that Steven Avery’s DNA found on that key was planted is equally dubious.  To test it, she hires forensic consultant Dr. Karl Reich who, naturally, immediately suspects the evidence is planted.

"The thing that's suspicious about the DNA is the quantity of it because they said it was touch DNA," says Zellner.  "Dr. Reich could felt just looking at it that there was too much DNA on the key to have just been the result of handling."

Yet again, Zellner conducts a rather unscientific scientific experiment to show that it would be impossible for the amount of DNA the state says Avery left on the key to be left by mere touch.

"An identical vehicle was obtained and an identical key was obtained to try and reproduce what the state came up with in terms of the amount of DNA that was recovered," Dr. Reich says.  "Ms. Zellner went up to Mr. Avery's prison and was able to bring in a key and have Mr. Avery hold the key. And that was timed for 12 minutes so we could measure the amount of DNA we got from the same kind of key held for what we would imagine was the same amount of time from the same person.

"The state got 0.17 nanograms per microliter.  The amount of DNA that we got from the exemplar key is a tenth of the amount of DNA that the Wisconsin Lab obtained from their key--not half, not 80%, but a tenth.  Why did we recover so much less?  Maybe we weren't as efficient or maybe the key had some other history than simply being held by Mr. Avery."       

By Dr. Reich’s own admission, the experiment’s results could have been from his own testing being less efficient than the Wisconsin Crime Lab’s, but the real problem lies in its central conclusion—that Avery touched the key for exactly 12 minutes.  How does anyone know that?  Avery couldn’t have told them because, remember, he wasn’t the real killer and therefore didn’t touch the key at all.

How did Reich know that Avery held it for 12 minutes?

"So we could measure the amount of DNA we got from the same kind of key held for what we would imagine was the same amount of time from the same person," he explains. 

Oh, that’s it.  They simply imagined that was the amount of time Avery held the key. And were the conditions in prison the same as in the scrapyard when Avery held the key the last time?  Of course not.  There are a multitude of environmental factors that determine how much DNA is left on a given surface, and Dr. Reich doesn’t bother to account for them.

"Could you improve the item of evidence by rubbing it on a mouth swab or a toothbrush?" he asks. "The answer those would be great sources of DNA.  You would get lots of DNA simply and rapidly by rubbing an item of evidence against either one of those." 

This claim is never proven, and besides, it wasn’t saliva DNA that was found on the key, it was touch DNA.  And the idea that there was just “too much of it” for it to be the result of Avery’s touch is similarly ludicrous.

The range of touch DNA that experts generally expect to find on an object is between zero and 150 nanograms.  Investigators found 5.1 nanograms of Avery’s DNA on the key—not even close to “too much DNA.”

A 2012 article in Forensic Magazine article used various studies to provide examples of how much DNA might be expected to be found.  In one study, a mug held for 15 minutes produced 6.8 nanograms of DNA.  Using Dr. Reich’s wild guess that Avery held Halbach’s key for 12 minutes, it is perfectly reasonable that he left 5.1 nanograms of DNA.

And as for the suggestion that it’s suspicious that only Avery’s DNA was found on the key, Zellner herself disproved that with an experiment she did on the hood latch in “Making a Murderer’s”  second episode.

That experiment establishes that not every touch leaves a DNA trace and DNA isn’t always found even on items that had been touched even moments earlier, meaning that it’s entirely possible that even though Halbach had touched the key, there would be no traces of her DNA on it and that instead investigators would find the DNA of the person who had handled the key most recently: Steven Avery.

As “Making a Murderer’s focus turns to oral arguments in the Dassey case, the show achieves one of its most ironic moments, if not its most ironic moment: Accusing former Avery and Dassey prosecutor Ken Kratz of improperly publicizing the case during a press conference at the federal courthouse.

"Then we came downstairs and there was all this commotion," says Dassey's attorney Steven Drizin.  "I went over to see what was happening and Ken Kratz was holding a press conference."

"I think it's really unprecedented that in 2017 Ken Kratz is still on some sort of active character assassination tour," says Zellner.  "He's talking about crimes he wishes Steven Avery was charged and convicted of but wasn't and I think it's going to come back to haunt him because I think he's gone from what would certainly be in incredibly bad taste to doing things that are unethical under the canon of ethics to now really interfering in Mr. Avery's efforts to have a court reexamine constitutional violations."            

Really.  “Making a Murderer” has done nothing but assassinate Kratz’s character for three years but it’s improper for him respond?  “Making a Murderer,” which has done nothing but publicize the Steven Avery case for three years has a problem with someone else publicizing the Steven Avery case?

The mind boggles.

And Zellner herself has done interview after interview, press conference after press conference since taking the Avery case and has routinely tweeted cryptic messages about finding new evidence that will uncover Kratz and his cohorts’ corruption.

Really? She of all people is worried about unnecessary publicity surrounding her client’s appeal process but agreed to do star in a documentary about her client’s appeal process that would be viewed by millions of people? Okay then.

Let’s take her argument at face value; that Kratz has violated what’s known as a prosecutor’s “duty of silence” after the conclusion of his involvement in a criminal case.

There is actually no specific duty of silence of prosecutors in the Wisconsin Rules of Professional Conduct for Attorneys.  Rules about trial publicity are set out generally, and prosecutors are only instructed to take “special care” that they aren’t violated.

And listen to the specific language regarding  publicity, because if Kratz violated it then Zellner is most certainly violating it, too:

A lawyer who is participating or has partic ipated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Gosh, what is the likelihood that an adjudicative proceeding could be prejudiced by an entire Netflix documentary series devoted to convincing millions of people that a couple of murderers are actually innocent and were really framed by law enforcement?

“Making a Murderer” wants its viewers to believe that what Zellner called Ken Kratz’s “character assassination tour” is a violation of the rules of professional conduct, but under the same interpretation, “Making a Murderer” itself is a violation of the rules of professional conduct.  

"I requested in the motion for scientific testing source testing that was done at Dr. Reich's laboratory," Zellner says.  "So we picked up the hood latch swab from the Attorney General and Dr. Reich did that testing at his laboratory." 

And that testing is quite possibly the most dishonest handling of the evidence that this season of “Making a Murderer” has thus far showcased.

"When it was tested by a microtrace chemist, he confirmed that it was completely dissimilar to hood latch swabs he gathered for purposes of comparison," Zellner explains.  "His sample that was actually taken from a car of similar vintage had dark marks on it and there was absolutely nothing like that on the Avery hood latch swab."  

Not exactly.  In his sworn affidavit, that expert, Dr. Christopher Palenik actually testified that:

A microscopical analysis of the hood latch swab fragment submitted to us (Item ID swab from hood latch/ trial exhibit #205 / Independent Forensic Ex. 1) shows that it is composed largely of fine mineral grains and other particles of airborne dust (e.g., pollen). This is qualitatively consistent with the size range and composition of debris collected from the hood latch of an exemplar 2012 Toyota Rav 4.

In other words, there was nothing substantially different between the DNA swab from Halbach’s RAV 4 and a swab taken from a control vehicle.  The problem, Zellner asserts, is that there is less debris on the RAV 4 swab and that it’s not visible to the naked eye.

This simply isn’t true.  When Dr. Reich first obtained the hood latch swab, he admitted that it had a dark mark on it, just like one would expect to find.  He said in his affidavit:

As presented the seals on the evidence were intact. The evidence consisted of cotton batting, a portion of which was discolored / soiled and presented in a plastic bag.   

This means that when he received the swab, it was discolored and soiled.  So why wasn’t it visible when Dr. Palenik received it?  Because Dr. Reich had soaked it in water during his testing. As he said in his affidavit:

The process of performing forensic body fluid testing requires that the item I evidence (swab batting or stain on fabric) be 'soaked' or wetted to promote the solubilization of the bio-marker; in more prosaic terms the evidence is dunked in water and agitated to promote the release of the biological material into the liquid phase.

This perfectly innocent explanation for the lack of visible smudging on the hood latch swab (which, remember, was in fact there when Zellner received it) is never mentioned in “Making a Murderer,” and Zellner instead concocts an elaborate conspiracy theory for how Avery’s DNA ended up on the hood latch of Halbach’s SUV.

"We started looking for other swabs that might have been substituted for the hood latch swabs and lo and behold we found that when Steven Avery was first taken into custody he was taken to a hospital and swabs were gathered from his body," says Zellner.  

Naturally, there’s no evidence to suggest that those swabs were ever substituted for the one the state collected from the RAV 4 and, if it was in fact used, how does Zellner account for the smudging on the swab that her own expert testified is entirely consistent with a control swab obtained from a similar vehicle?    

She doesn’t, and instead presents a highly implausible theory that the groin swabs weren’t actually thrown out at all, but substituted for the swab the state presented as coming from the RAV 4.

"[Investigators] Wiegert and Fassbender had a search warrant," Zellner says.  "The nurse took the groin swabs and they said, 'Oh, the warrant doesn't call for us to take groin swabs' and they documented that the nurse threw them into a receptacle.  The nurse, though, did not document that they had been taken so immediately you know something's wrong.

"I think that they kept the swabs."   

And where is she getting all of this evidence that Wiegert and Fassbender kept the swab?  From Steven Avery.  Seriously.  His affidavit in which he claims that he saw Wiegert keep the groin swabs.  
As Zellner writes in her motion for a new trial:

As Mr. Avery followed Agent Fassbender and Nurse Fritsch out of the examination room, Mr. Avery heard Inv. Wiegert tell Nurse Fritsch to give him the groin swabs, and Mr. Avery observed Inv. Wiegert walk to the examination room receptacle as if to discard the groin swabs. Mr. Avery observed that Inv. Wiegert's did not drop the groin swabs into the receptacle.

Of course, Avery wouldn’t have any motivation to lie about this, would he?  Zellner herself acknowledges that besides Avery, Wiegert, and Fassbender, there were two other people who witnessed all of this—the nurse, Faye Fritsch and Dr. Laura Vogel-Schwartz.

Yet Zellner never obtains an affidavit from either of them.  Why not?  Why not have two witnesses to obvious evidence tampering and a massive conspiracy to frame Steven Avery testify about what they saw?

The answer is as obvious as it is simple: Because they didn’t see any evidence tampering.  Because it never happened.   

 
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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