"Rebutting a Murderer" Episode 10: Trust

Trust is the most fickle of human emotions.  It often takes us a long time to build it but only a moment to abandon it.  Some of us trust too easily while others trust almost no one.  Steven Avery’s attorney Kathleen Zellner admits that she is the latter.

"It's sort of a joke in my office," she says.  "I let my clerks do a lot of analysis and work and give me memos and all that, and I trust no one."

In the final episode of “Making a Murderer’s” second season, though, Zellner asks for everyone’s trust; that despite nine episodes of misrepresenting and mischaracterizing evidence, she can finally deliver on nine episodes of promises to overturn a murder conviction.

That’s asking for a lot of trust.  My answer is to demand that she verify.

 

The episode opens with disappointment for Avery’s attorney Kathleen Zellner, as a Sheboygan County Circuit Court Judge flatly denies her motion for a new trial.

"You know, I would like to be diplomatic about this opinion, but it's hard to do that when I've got somebody's life at stake, and on the receiving end of it is someone who obviously doesn't--who's making fundamental mistakes about the underlying facts in the case, and then is trying to go one-on-one with our scientist," Zellner asserts.  "It's just not at all what a judge should be doing."

As a matter of fact, it’s exactly what a judge should be doing—assessing the quality of the arguments made by both parties before her and making a ruling on the issues raised.  Zellner raises objections to Judge Angela Sutkiewicz leaving out of that ruling a discussion of several points Zellner raised in her motion, but Zellner leaves out a key commonality underlying all of them: they didn’t present any new evidence.

Since Avery already appealed his case all the way to the Wisconsin Supreme Court, the state’s court of last resort, and lost at every step of the way, Judge Sutkiewicz’s ruling was rightfully focused only on arguments that Avery had not raised before and new evidence uncovered by DNA testing.

That testing, performed on the hood latch of Teresa Halbach’s RAV 4, the key found in Avery’s bedroom, and the bullet found in his garage, quite simply did not yield definitive conclusions that would provide adequate grounds to grant a new trial.

As Judge Sutkiewicz noted in her opinion, Zellner’s own experts in their affidavits did not draw definite conclusions about those items and instead concluded that “more testing is needed.”

All three items of evidence were admitted at trial.  Each was thoroughly contested by defense counsel. The reports submitted by the defendant are equivocal in their conclusions and do not establish an alternate interpretation of the evidence.  Given the totality of evidence submitted at trial and the ambiguous conclusions as stated in the experts’ reports, it cannot be said that a reasonable probability exists that a different result would be reached at a new trial based on these reports.  As such, the defendant has not met his burden in order to obtain a new trial.    

Judge Sutkiewicz here merely acknowledged a reality that “Rebutting a Murderer” has been pointing out for nine-plus episodes now: Kathleen Zellner’s own experts do not support Kathleen Zellner’s grandiose pronouncements.

Undeterred by this resounding defeat, Zellner tries to bounce back by again advancing the evidence-free theory that Brendan Dassey’s brother Bobby and stepfather Scott Tadych are Teresa Halbach’s real killers.

Needless to say, Bobby’s father and Scott’s wife Barb Tadych—Steven Avery’s sister—was not pleased with this development and told her brother as much in a phone call to him in prison.

 

Barb Tadych is correct: there still is not a single shred of evidence tying either Bobby Dassey or Scott Tadych to the crime.  In fact, as Barb angrily reminded her brother in that phone call, Scott has an alibi for the night of the murder.  He was with her all night.

Before that, he had indeed been visiting his mother in the hospital in Green Bay and then, at about 3:00 that afternoon, went out to his deer stand to hunt for a little bit before returning home to pick up Barb and go back to Green Bay, where the two of them again visited his mother.

At about 7:40, they returned to the Avery property and Scott testified that when he dropped Barb off he saw Steven and Brendan standing next to a large fire behind Steven’s garage.  At 8:00 pm, Scott returned to his home to watch the TV show “Prison Break.”  Barb came over and watched it with him. 

On the way to his deer stand, he testified that he passed Bobby Dassey driving down Highway 147 abutting the Avery scrapyard.  While the common belief is that Bobby and Scott are each other’s only alibis, this simply isn’t true.  Barb provides an alibi for Scott while Bobby’s brother Bryan provides a partial alibi for him.

Bobby and Brendan’s brother Bryan testified that the two of them, along with a fourth brother, Blaine, were all home when he got back to shower up before heading to his girlfriend’s home.  Interestingly, Bryan Dassey’s testimony isn’t mentioned in “Making a Murderer” in the context of providing Bobby Dassey an alibi, and with good reason.

He also testified that he overheard “Brendan talking with Steven about needing some help doing something.”  When he left for his girlfriend’s house at about 6:30 that evening, he saw smoke coming from behind his Uncle Steven’s garage.

Most likely from a fire in the burn pit...the same burn pit where Teresa Halbach’s charred bones were found.

Was Bryan Dassey lying?  Zellner never bothers to answer.  She instead focuses on a Facebook post that Barb made the night of her angry phone call with Steven.

"That, for some reason, provoked Barb into talking to Bobby about exactly what he had said, uh, you know, what he was claiming about Teresa's visit to the property," Zellner explains.  "A new version emerged, according to Barb, which she posted on Facebook, from Bobby, that he actually had never seen Teresa walk towards Steven's trailer, which, of course, means he committed perjury at the trial.  We then took that information and that phone conversation and we filed a supplement on November 1st."

Interestingly enough, though, Zellner never bothered to obtain an affidavit from Barb or subpoena her to force her to testify under oath what she had said randomly on Facebook.  Why not?  If her Facebook statement was so damning to Bobby’s credibility, why not have her testify to that effect?

The answer is rather obvious; it’s hearsay and thus inadmissible as evidence.

"I had never looked at the underlying reports of Eisenberg," Zellner says. "And so, I was going through her notes, and what caught my eye was the numbering of the tag numbers."

Zellner claims she has found a bombshell; that forensic anthropologist Leslie Eisenberg, who examined the bone fragments found in Steven Avery’s burn pit and other bones found in the nearby quarry stated definitively that bone fragments found in the quarry were human.

"I, of course, knew 8675 was the quarry pile with the pelvic bone in it. But then I saw on the sheet of paper a different numbering sequence in the 7400s. This was different evidence. These were different bones. And then I started reading the content of it where, in great detail, Leslie Eisenberg has documented that there are more human bones. And then I'm noticing not only that, but she's documenting that they have cut marks on them."

Here, Zellner trusts that “Making a Murderer” viewers will not have gone back and read the trial transcripts.  Dr. Eisenberg did indeed mark those bone fragments as human bones...in her initial examination of them.  She testified at trial that upon closer examination, they were not human bones at all.  A total of 13 questionable bones were found in that quarry.  10 of them were determined to be animal bones.  Three of them were too small to be identified as either human or animal but are more than likely animal because they were found in an area where a hunter had rather obviously cut up a kill.  That explains the cut marks on the bones.

Amazingly, though, Zellner never clears this up and gives “Making a Murderer” viewers the impression that Teresa Halbach’s bones were definitely found in the quarry.  They most definitely were not.

And Zellner knows that they’re not.  Remember, she had what she claimed was a human pelvic bone in her possession and could have tested it.  She either didn’t or didn’t present the results of that testing in any of her motions for a new trial.  Why not?  If that testing showed Teresa Halbach’s pelvic bone was found in the Manitowoc County quarry and not in Steven Avery’s burn pit or burn barrel, why not present this bombshell evidence?

Because it’s not bombshell evidence at all.  It’s not a human bone.  None of those bones are.

If that wasn’t enough to shake your faith in what “Making a Murderer” has been showing you, its depiction of former Manitowoc County Coroner Debra Kakatsch should.

"I found out from the media that there was possibly some remains found on the Avery property [in 2005]," Kakatsch says. "There was a press conference that was on television. I believe it was November 9th, around 3:00 p.m. , that that was confirmed."

Kakatsch claims that the Manitowoc County Sheriff’s Department violated the law in refusing to allow her to come to the scene to investigate the death.

"I told him I wanted to come out to the scene," she says.  "They told me the scene was closed for the night. And I said, 'OK, that's fine. But why didn't you give us some kind of report, some kind of a heads-up as to what was going on?' And then he commented to me at that time, very rudely, 'Well, I don't have to call or tell you about bones.' And I said, 'Oh, yes, you do.' It's the law, it's the statute, 979, when there is a deceased body or remains, that a coroner or medical examiner are always notified. They handle the medical forensic side of the body.

"The next day, in the morning, I was going to go out to the scene, and I was called to a meeting by Sheriff Peterson. I thought, 'Oh, good, I'm finally getting I'm finally getting a meeting. I'm finally going to get an update on what's going on and when I will be able to come out to the scene.'  But when I got there, at that time, I was told I will not be going out to the case, I will not be going out to the scene, and if I do, I will be arrested."

This exchange—if it ever actually happened—is not nearly what “Making a Murderer” presents it to be.  Remember, because of the ongoing lawsuit Avery had filed against Manitowoc County—not just the Sheriff’s Department, but the government of Manitowoc County—the County allowed neighboring Calumet County to lead the investigation.  Because both counties are relatively small, Manitowoc County Sheriff’s Deputies were allowed to assist in the investigation.

Remember deputies James Lenk and Andrew Colborn—two of the villains of “Making a Murderer’s” first season?  They were allowed to assist in the investigation precisely because they personally had the fewest prior dealings with Avery and least ties to the lawsuit and thus were presumed to be far enough removed from the case to at least assist Calumet County and state investigators.  Ironic, huh?

Lenk and Colborn didn’t lead any investigation; they merely helped out.  Calumet County, which had no motive to frame Steven Avery and has never been implicated in any of the frame-up conspiracies, took the lead and, naturally, they notified the Calumet County Medical Examiner once human remains had been found.

Here’s the thing, though, investigators didn’t find a body.  They found tiny bone fragments.  Essentially, there was nothing for a coroner to investigate.  The bone fragments were immediately taken to the Wisconsin State Crime Lab to be analyzed.  A local coroner would not have been able to identify the body at the scene.  He or she would not have been able to identify a cause or manner of death at the scene.  A coroner at the scene was unneeded.

Deb Kakatsch was told to stay away because she had no jurisdiction over the matter at all.  This was not her investigation; it was not Manitowoc County’s investigation.  It was Calumet County’s.     

Zellner then returns to her analysis of the Dassey family’s computer and expresses outrage that a CD-ROM of data found by Grand Chute Police detective Michael Velie was never turned over to the defense until 2018—11 years after Avery’s trial.

"So, if you look at the fact that the Velie report, the forensic analysis of the computer, was completed on May 10th of 2006," Zellner insists.  "The Fassbender report was not turned over even mentioning the CD until December of 2006. And the Fassbender report says, 'The disc received from Detective Velie, as well as the hard copy pages of instant message conversations, were maintained in Fassbender's possession.'"

"So, 2,400 pages of evidence is kept by Fassbender and not given to the defense.  It was never, ever given to the trial team, the appellate team. It was not disclosed until it was given to me."

This is not even remotely true.  Steven Avery’s attorneys had every bit of data from the Dassey computer on December 14th, 2006.  All of the contents of the hard drive were turned over on seven CD-ROMs.  There was no new information given to Zellner 12 years later.  She already had access to all of it.  So did Avery’s attorneys at trial.

In a second motion for a new trial filed with Judge Sutkiewicz in 2018, Zellner alleged that withholding the so-called “Velie CD” amounted to a violation of Brady v. Maryland, which requires that the prosecution in a criminal matter turn over all potentially exculpatory evidence to the defense.

Sutkiewicz found that there was no Brady violation whatsoever, since, as she wrote “the defendant’s own computer expert asserts, the same information presented in the Velie CD was in the possession of the defense on the 7 CDs turned over by the prosecution in December of 2006, almost two months prior to the beginning of trial on February 12, 2007.”

In an even more damning passage in her ruling, Judge Sutkiewicz reminds Zellner that Avery’s trial defense actually stipulated to the conclusions of both the Velie CD and Fassbender’s report on it but chose not to raise them in court:

Attorney Strang was in possession of Special Agent Fassbender’s report revealing the work of Detective Velie, he acknowledged the detective’s review of the drives when discussing the stipulation proposals, and concluded that the information on the drive in question was irrelevant, a result of a strategic decision on the part of the defense rather than misconduct on the part of the prosecution.    

In other words, Zellner’s wild accusations about the state withholding evidence from her are either out-and-out lies or the result of her not knowing her client’s case as well as she thinks she does.  Either way, her motion was swiftly rejected in September of 2018.

After “Making a Murderer’s” final episode expresses the requisite outrage that the full Seventh Circuit Court of Appeals ruled against Brendan Dassey, his attorney, Laura Nirider, prepares viewers for the inevitable.

"The United States Supreme Court gets thousands of requests to take cases each year. And out of those thousands, they take about 80 cases," Nirider says.

And the Court didn't take Brendan's.

"Wisconsin's Attorney General saying he hopes Teresa Halbach's family can now find some comfort and closure with the court's decision," a reporter says in announcing the Court's decision.

The Halbach family will get neither, and neither will the Dassey family, because even as Brendan now knows that he will almost certainly spend several decades more in prison for his crimes, his uncle Steven is still trying to secure his freedom by having an attorney and a documentary crew pin the blame for his crimes on others, regardless of the fact that there is no evidence to support their ever wilder and more desperate theories.

Those theories—like every conspiracy theory both “Making a Murderer” and Steven Avery have ever advanced—essentially boil down to trust, the most fickle of human emotions.  Avery, through his attorney, Kathleen Zellner, is asking for your trust.  Zellner is asking for Avery’s trust and, by extension, yours. 

Trust her; she knows what she’s doing.  Trust her; she’s got another card up her sleeve.  Trust her; she will win in the end.

But by the end of “Making a Murderer’s” second season, she sounds like her trust in herself is waning.

"This story," she says, "you know, the story of Steven Avery's life, whether I win in court or just making known what happened to him if he doesn't survive, um, is something that I'm completely committed to doing. Because it is such, um, a tragic story."

It is, but not for the reasons she thinks it is.  The real tragedy is the betrayal of trust of millions of people. The real tragedy is that through a constant stream of misinformation, mischaracterization of evidence, and outright deception, a television show has tricked millions into believing a murderer’s lies.

The real tragedy is that in spite of a mountain of evidence proving Steven Avery’s guilt, there are still those willing to ignore it and to instead believe in theories for which no actual evidence exists.

That’s the funny thing about trust—sometimes it operates a whole lot like blind faith, and even when concrete, irrefutable evidence arises that disproves one’s theories, there is a tendency to ignore that evidence and continue to trust in the theory.

That’s all that the second season of “Making a Murderer” really was; an exercise in misplaced trust—trust in Steven Avery, trust in Kathleen Zellner, trust in the filmmakers themselves to tell an honest story.

For a second season, they didn’t and, in fact, spent ten episodes proving only that they are unworthy of your trust. 

It’s still unclear whether there will be a third season of “Making a Murderer,” whether there really is more of the Steven Avery story left to tell, but if there is, I will be right here to counter it.

Trust me.  

 
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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