One of the oldest clichés in both fictional and actual criminal law is the concept of a “smoking gun”—a piece of evidence so damning that it is akin to finding the murder weapon in the suspect’s hand.
“Making a Murder’s” smoking gun is more of a smoking bullet—a bullet fired from Steven Avery’s gun that served as the prosecution’s literal smoking gun evidence at trial.
Yet Avery’s attorney Kathleen Zellner sets out to prove that gun wasn’t smoking at all, and that the bullet that killed Teresa Halbach never actually struck her at all.
Unfortunately, despite her claims, she has no smoking gun evidence whatsoever to prove this.
I’m Dan O’Donnell and this is “Rebutting a Murderer.”
"The state established cause of death through Dr. Jensen, who is a forensic pathologist from Milwaukee," Zellner explains. "Dr. Jensen testified that Teresa Halbach died as a result of being shot in the head, and in his opinion, the bullet fragment--which is FL--passed through her brain and ended up on Avery's garage floor."
It wasn’t quite that simple. Ballistic testing proved that the bullet had been fired from Steven Avery’s gun—a gun he kept above his bed. The bullet fragment matched complete bullets Avery kept in his bedroom.
So thorough was this smoking gun evidence that the bullet fragment was fired from no other gun in the entire world but Avery’s that Avery’s defense still has not contested this.
The bullet was fired from his gun.
After Brendan Dassey confessed that Avery had shot Teresa in the head in the garage—and pointed out the exact part of her head that forensic testing of her bones proved the bullet entered—investigators for the first time knew that Halbach had been killed in Avery’s garage.
“Making a Murderer’s” first season intimates that the bullet fragment (with Halbach’s DNA on it) found in the garage wasn’t found during repeated searches of the garage. This wasn’t true. Investigators only did a thorough search of the garage once Dassey told them the murder occurred there.
Investigators used jackhammers to dig up the concrete floor of the garage and did find traces of blood, but testing was unable to determine with any certainty that the blood was human. They did, however, find that the garage had been cleaned with paint thinner and bleach.
Dassey told investigators that he and his Uncle Steven had been cleaning the garage with bleach the night Halbach disappeared and even turned in to them a pair of bleach-stained jeans.
Naturally, none of this is mentioned in “Making a Murderer’s” seventh episode. Zellner instead travels to Arizona to have a ballistics expert demonstrate that Avery’s .22 caliber rifle couldn’t possibly generate enough power to fire a bullet directly through a human skull as the prosecution contends.
Whoops, he actually says that it is indeed entirely possible.
"And I was told it's a rare, rare event because it's such a small projectile that it doesn't have the energy to exit the skull," Zellner says. "But the expert I ended up with and the one I think is the most knowledgeable told me it could happen."
Well then. To show that it was unlikely, however, Zellner’s expert grabs pieces of a cow skull and shoots them a couple of times. Why a cow skull? Because, he says, the thinnest parts are most like a human skull.
But he admits that the skull he uses for testing is similar to a human skull but not exactly like a human skull and that most parts of a bovine scapula are much thicker. This experiment is thus completely useless as evidence as it fails to recreate even the material that the bullet traveled through.
Zellner is undeterred, though, and she takes the bullets that her expert shot through cow bones to a forensic expert who says that a bullet fired through bone should have bone fragments on it, even after the fragment is washed during DNA testing.
"And you can see this is before it was washed," he says. "And you can see that even after the washing for DNA extraction there's still almost as much material as we saw in the earlier image."
"I have requested the bullet fragment FL from the Wisconsin Attorney General's office--the bullet fragment that was under the air compressor in the garage," she explains. "The lead was examined by Sherry Culhane for blood and she never noted that there were any bone fragments."
Zellner is clear.
"If FL went through two layers of thickness of her skull--entrance and exit--there would absolutely be bone fragments in the lead," she says.
So she obtains the bullet fragment for her own testing.
After a brief check-in with Brendan Dassey’s family as they await the results of his appeal, “Making a Murderer’s” seventh episode returns to Zellner, who tries to make the case that Avery never lured Halbach to his trailer as the prosecution contended.
"The state's theory was that Steven was this sex-obsessed maniac who lured Teresa to his property to kill her after setting an appointment with her and that he was using deception by calling and using the name 'B. Janda,'" she says. "The truth is she knew where she was going."
Maybe, but that doesn’t mean Avery didn’t try to conceal his number when he contacted her. Avery in fact used *67 to hide his number when he called Halbach to try to set up what’s known as a “hustle shot”—a private appointment for a photo shoot of a van that Avery supposedly wanted to sell that didn’t go through Halbach’s employer, Auto Trader Magazine.
He did in fact call Auto Trader as well and used the name “B. Janda” but this could very well be because the van belonged to Dassey’s mother, who then went by “Barb Janda.”
That doesn’t change the days leading up to October 31st. On October 9th, Avery and Janda went shopping and she purchased some pink fur and steel handcuffs and leg irons. Steven purchased a pair of each for himself, too. This was especially bizarre because Avery’s girlfriend at the time, Jodi Stachowski was in jail and would be for the next several months.
She even asked him about them in a phone call from jail, but he said they were for her when she got out. In six months. He was apparently quite the planner.
The very next day, October 10th, Avery called Halbach directly to set up a “hustle shot.” When she arrived, he answered the door dressed in nothing but a towel. She left and told a co-worker how creeped out that made her and said she never wanted to go back to the Avery property.
At about the same time, Avery took a picture of his erect penis, which was found during a search of his trailer after Halbach’s death. It was even date-stamped “October 10th, 2005.”
Zellner then attempts to use data from Halbach’s cell phone on October 31st to prove that she left the Avery property after shooting Barb Janda’s van.
"Our theory is that Teresa leaves the Avery property and makes a left turn," Zellner says. "I believe that Teresa was heading home that afternoon because we found a day planner that she filled in for the 31st and one thing that it indicated was that she wanted to go to her mother's house by 3 pm. So she was on a schedule to be back in Hilbert on or before 3 pm."
Of course, that doesn’t mean she was able to keep to that schedule.
"What she would have done is take a left on Highway Q and head south on Q," Zellner adds. "The last call, the call that she forwards when her phone is still active at 2:41 pm, pings off of a cell phone tower that is miles away from the Avery property--the White Law Tower."
Zellner claims that it was impossible for Halbach’s cell phone to “ping” from that tower if it was still on the Avery property, but this is simply untrue, since cell phone tower pinging is not nearly as precise as one might think.
As The New Yorker reported in a comprehensive article detailing over-reliance on cell tower data in the law:
Rather than pinpoint a suspect’s whereabouts, cell-tower records can put someone within an area of several hundred square miles or, in a congested urban area, several square miles.
When you hit “send” on your cell phone, a complicated series of events takes place that is governed by algorithms and proprietary software, not just by the location of the cell tower. First, your cell phone sends out a radio-frequency signal to the towers within a radius of up to roughly twenty miles—or fewer, in urban areas—depending on the topography and atmospheric conditions. A regional switching center detects the signal and determines whether to accept the call. There are hundreds of such regional centers across the country.
The switching center determines the destination of your call and connects to the land lines that will take it to cell towers near the destination. Almost simultaneously, the software “decides” which of half a dozen towers in your area you’ll connect with. The selection is determined by load-management software that incorporates dozens of factors, including signal strength, atmospheric conditions, and maintenance schedules. The system is so fluid that you could sit at your desk, make five successive cell calls and connect to five different towers. During a conversation, your signal could be switched from one tower to the next; you’ll also be “handed off” to another tower if you travel outside your coverage area while you’re speaking. Designed for business and not tracking, call-detail records provide the kind of information that helps cell companies manage their networks, not track phones.
Put another way, if I’m making a cell-phone call from my couch and someone commits a murder in a bar half a mile away, my cell records may serve as corroborating evidence that I took part in the crime. That might be true if I’d claimed to be in another state at the time, but those records cannot place me next to the body. What they don’t show is the precise location of a cell phone.
This doesn’t stop Zellner from concocting an elaborate theory based on nothing more than a single ping.
"Could she have had something set up at the quarry to do a shot? Or if someone saw her, they could have just flagged her down to do a hustle shot," Zellner asserts. "Could something have happened, someone made a pass at her, some reason that she decided to leave? She's struck and knocked on the ground and then hit on the head and then ultimately shot? Yes, it definitely could have happened that way. It happened very quickly. I'm sure disposing of the body took a lot longer than the actual murder."
Literally all of this is just speculation based on a ping that came from a cell phone tower that didn’t even place Halbach at the quarry. Remember when Zellner was so upset about Kratz imagining details of Halbach’s murder? That was just one episode ago.
"He's talking about crimes he wishes Steven Avery was charged with and convicted of," she said in Episode 6. "But he wasn't."
This bothered her so much in Episode 6 that in Episode 7...she’s talking about crimes she wishes some imaginary killer committed. But she does claim to have some evidence that Halbach was actually where she says she was after leaving Avery’s property.
"Remember, that's where the scent dogs ran over to the suspected burial site," she says. "Law enforcement determines that it's not a burial site, but what they fail to think about is because the scent dogs ran over and a cadaver dog alerted on that spot."
And everyone knows scent dogs and cadaver dogs are never wrong, right? Except they generally get false hits about 10 percent of the time. Oh, and a cadaver dog also alerted inside Steven Avery’s trailer and twice on barrels outside his trailer plus several other alerts in a berm near the trailer.
But of course those are never mentioned in “Making a Murderer.”
Also never mentioned is the fact that the dogs hit on a scent traveling from Avery’s trailer to Kuss Road, not the other way around as Zellner suggests. This would tend to support Dassey’s confession that he and Avery drove Halbach’s SUV with her body in the back from the location of the murder—Avery’s garage—to a nearby pond in an attempt to dispose of both the SUV and the body. When they found that the pond had dried up, Dassey said they drove the SUV back to the scrapyard, hid it, and then burned Halbach’s body.
Zellner then obtains the bullet fragment found in Avery’s garage and has it tested. In a shocking twist, Dr. Christopher Palenik discovers that there is no trace of bone on the bullet fragment and instead there is wood.
"If a lot is based on that bullet, then..." he starts to say before Zellner cuts him off excitedly.
"The whole case," she says. "That's their cause of death."
"Well you now know that it isn't," Palenik says. "The fact of the matter is that there is something there, but it's the wrong stuff."
Only this isn’t what Dr. Palenik says in the affidavit Zellner presents to the Sheboygan County Circuit Court in her motion for a new trial. He says:
Note that the criteria for classification each material described above is based upon in situ observations and are not necessarily inclusive of all particle types that may be present. A more thorough examination would require the physical isolation of the debris for a more detailed analysis.
“Making a Murderer’s” seventh episode ends with Zellner heroically and rather triumphantly dropping off her motion for a new and declaring it to be the definitive document that will prove Avery’s innocence, so it’s only fitting to end this episode of “Rebutting a Murderer” by reading from the judge’s decision rejecting that motion dismissing what Zellner claims is her strongest evidence—her testing of the bullet.
The expert witness indicates that the tests used on the bullet are not inclusive to the point of discovering all particles present on the bullet surface. In order to completely rule anything out, the expert indicates that more detailed analysis would be necessary. Furthermore, the report indicates that the tests performed cannot determine what the red substance on the bullet is. Again, the expert indicates that further testing would be needed to rule blood in or out as the source of the stain. The expert also states that he would want to supplement his report after further test results were available. The reports do not support the defendant’s position.