Desperation makes people do desperate things; to cling to a faint hope that a longshot play might win them the game or, in Steven Avery’s case, his freedom.
In “Making a Murderer’s” eighth episode, Avery’s attorney, Kathleen Zellner, has just submitted a Hail Mary of a motion for a new trial centered in part on a desperate theory that a bullet fired from Avery’s gun never traveled through Teresa Halbach’s head at all...and an even more desperate search for someone, anyone else to blame for her murder.
I’m Dan O’Donnell and this is Rebutting a Murderer.
"We can win this and get this convicted vacated just on the fact that there's no bone and there's wood on this fragment," Zellner says as she attempts demonstrate that the bullet fragment found in Avery’s garage was never fired through Halbach’s head at all, but was rather fired through the wall of the garage, picking up wood fragments and red paint—not bone fragments and blood.
To test this theory, Zellner fires a few rounds through the wall using a .22 caliber pistol and then takes one of the bullet fragments that she declares looks a lot like the one investigators found to her ballistics expert.
One wonders why Zellner used a pistol, though, since Avery used a rifle to kill Halbach—and even Avery’s own expert at trial conceded that the bullet found in the garage was definitely fired from that gun. If Zellner wanted her recreation of the shooting to be as faithful to the actual shooting as possible, why not use that gun or a similar one? Why not use any rifle at all and instead use a pistol?
This discrepancy would seemingly render Zellner’s experiment useless since it did not faithfully recreate the shooting at all, but she declares it a success nonetheless.
"Look at that!" she exclaims. "That's crazy! Look at the wood. That's the paneling. That looks just like our bullet."
Zellner then takes that bullet to Dr. Christopher Palenik.
"So here is one of your exemplar shots and here is FL on the left," he says. "In the FL bullet, you have this buildup of some sort of material."
"Wax," Zellner exclaims.
And what exactly is that waxy material? Zellner asserts that it’s ChapStick that investigators took from Halbach’s home and then rubbed on the bullet fragment to frame Avery.
"We've got DNA on the bullet that's much more consistent with ChapStick DNA than blood or the inside of the scalp," she says. "I believe that what happened is that ChapStick was removed with a cotton swab because we can see cotton fibers on the bullet, and the ChapStick was put on the bullet."
Naturally, there’s no evidence whatsoever that this is true. In her motion, Zellner even admits that it is most likely “wax...used by firearms analysts to orient and hold bullets during their analysis.”
Nowhere in that motion does Zellner ever raise her ChapStick theory.
This is most likely because in his affidavit, Dr. Palenik admits that the waxy substance is almost certainly from DNA analysis of the bullet fragment and testifies that “further analysis of the waxy material could clarify this point.”
Either further analysis was never completed or it was but didn’t show what Zellner had hoped it would, but in either case it is clear that Zellner is unable to prove what she explosively claims in “Making a Murderer’s” eighth episode in what seems to be more and more like an act of desperation.
Brendan Dassey’s attorneys, though, are anything but desperate after a three judge panel in the Seventh Circuit Court of Appeals sides with them.
Their giddiness was of course short-lived when the full Seventh Circuit, sitting en banc, reverses that decision a few months later. No wonder “Making a Murderer” finds it so outrageous that the state would dare to appeal the three-judge panel’s decision.
After it does in fact appeal, Dassey’s attorney Laura Nirider insists that there’s just no way that the court will reverse the panel’s decision because she claims that the state courts never applied what’s known as “special care” in evaluating Dassey’s confession.
"Not once did the state courts ask themselves, 'How would a sixteen year-old understand these questions that are being said to him? How would a sixteen year-old with limitations like Brendan's understand the questions that are said to him?' That's special care that the Constitution requires," Nirider insists. "The Seventh Circuit concluded not just that the state court was wrong in the way it handled Brendan's case, but that it was so unreasonably wrong that no other reasonable judge could have ever agreed with them."
Only a few reasonable judges did. They’re on the U.S. Supreme Court. And they have decided in cases almost identical to this one that there was no coercion.
In its en banc decision, the Seventh Circuit made note of this and concluded that “the requirement that courts take ‘special care’ in analyzing juvenile confessions does not call for habeas relief here.”
“The state appellate court met the requirements for analyzing juvenile confessions by considering Dassey’s age, his intellectual capacity, and the voluntary absence of his mother during the interrogation.”
The full Seventh Circuit applied the very reasonable standard from the very reasonable Supreme Court and determined that since the interrogators did not do anything that would overbear Dassey’s free will, his confession was voluntary.
And it’s notable that at no point do Dassey’s attorneys or “Making a Murderer’s” second season ever address a key moment from the first season—when Dassey confesses to the murder to his mother in a jailhouse phone call:
Dassey: Yeah, but you might feel bad with... if I say it today.
Dassey: About what all happened.
Dassey: About what all happened.
Janda: What all happened? What are you talking about?
Dassey: About what me and Steven did that day.
Janda: So Steven did do it?
Janda: Oh, he makes me so sick.
Dassey: I don't even know how I'm gonna do it in court, though.
Janda: What do you mean?
Dassey: I ain't gonna face him.
Janda: Face who?
Janda: You know what, Brendan? Dassey: What?
Janda: He did it. You do what you gotta do. So in those statements, you did all that to her too?
Dassey: Some of it.
Janda: But what about when I got home at five, you were here.
Janda: Yeah. When did you go over there?
Dassey: Well, I went over earlier and then came home before you did.
Janda: Why didn't you say something to me then?
Dassey: I don't know, I was too scared.Janda: You wouldn’t have had to be scared because I would've called 911 and you wouldn't have been going back over there. Maybe she would've been alive yet.
“Making a Murderer’s” first season presents this as evidence that the two interrogators had so rattled Dassey that he repeated his false confession to his mother, but in listening to him, it’s rather obvious that he’s telling her the truth.
Yes, they did urge him to tell his mother what really happened, but by the time Dassey eventually does, he has had hours to think about it. The interrogators must have had some sway over him if even outside of their presence, Dassey confesses to things he didn’t do.
In the law, this is known as a “statement against penal interest” that is presumed to be true since the person making it would be presumed not to make it if it were untrue. Why would someone say “Yeah, I killed her” if he didn’t actually kill her when he would know that saying something like that could put him in prison?
Why would Brendan Dassey lie and say he helped his Uncle Steven kill Teresa Halbach if he really didn’t? Why, even when there was no pressure on him whatsoever to make up a story, did he tell his mother that he helped kill Teresa Halbach?
Because he was telling her the truth.
"What we're undoing is the prosecution's case," says Zellner. "The prosecution's case was Teresa came to the property and never left the property; the car never left the property. That's the theory, and that theory is completely wrong."
This, Zellner asserts, is because Brendan Dassey’s brother Bobby was lying when he testified to seeing Halbach’s SUV parked in front of Avery’s trailer but not trace of Halbach herself.
"Bobby Dassey was lying," she asserts. "I have an affidavit from another witness who says that Bobby Dassey told him that Teresa left the property, [saying] 'I saw her leave.'"
That new witness is another Dassey brother, Bryan, who was never called as a witness at trial. Why? Because his testimony would have been inadmissible hearsay. The statement “Bobby told me Teresa Halbach left Uncle Steven’s trailer” thus could not be used to prove that Halbach indeed left Avery’s trailer.
But let’s ignore that for a moment and indulge Zellner’s theory—that Bobby Dassey was lying about never seeing Halbach leave the trailer.
"The only reason that I can think of that Bobby Dassey would lie would be if the prosecution pressured him into lying," Zellner says. "If they said to him, 'Look, it's either going to be you or Steven and Steven has already told us that you're the last person that saw Teresa, so you either agree with that and we go after you or you tell us a different story."
There is and has never been any evidence linking Bobby Dassey to the murder, but that doesn’t stop Zellner from raising the possibility that he was the real killer anyway.
"We have got our own forensic examiner and we have found thousands and thousands of images that could have only been accessed by Bobby Dassey," she says. "Torture, bondage, pedophilia, nightmare stuff, and a fascination with death: many, many bodies of drowned girls, decapitated girls, things like that."
The implication is that because Bobby was into such graphic, violent pornography, he could have enacted his fantasies and killed Halbach himself. Could have. Violent pornography—even illegal pornography—is not in itself evidence of a murder. It’s evidence of illegal pornography.
After Zellner’s expert finds that pornography, she files a second motion seeking a new trial.
But she never argues that Dassey was the real killer (because, again, she has no evidence linking him to the crime); she instead argues that the prosecution in Avery’s trial never provided the defense with CD-ROMs containing that violent pornography on Bobby Dassey’s computer.
This, she argues, would have constituted a violation of the Brady standard established in the U.S. Supreme Court case Brady v. Maryland, in which prosecutors are required to turn over evidence to the defense that tends to show that the defendant is innocent.
Avery’s defense, Zellner argues, never had the violent pornographic images and thus couldn’t have raised a Denny argument that Bobby was the real killer or at the very least used those images to impeach Bobby’s credibility on the witness stand.
That simply isn’t true. In December of 2006—several months before Avery’s trial started—the state turned over seven CD-ROMs that contained almost every single one of the violent images, meaning that the defense had all the evidence they needed to either raise a Denny argument or impeach Bobby’s credibility.
They just never did.
In September 2018, Judge Angela Sutkiewicz flatly denied Zellner’s motion for a new trial, holding that “in light of all the evidence submitted, it is clear that the defense was in possession of the same evidence as the prosecution prior to trial.”
So why didn’t Avery’s defense at trial use that evidence to claim Bobby Dassey was the real killer? Because it’s not real evidence of a murder at all. Again, there is no physical evidence tying Bobby Dassey to the crime, despite what an increasingly desperate Kathleen Zellner would have “Making a Murderer” viewers believe.
There has been and still is only one person on Earth that the physical evidence has ever tied to the murder of Teresa Halbach: Steven Avery.