Making A Murderer (2015) s01e06 Episode Script
Testing the Evidence
Brendan watches Steven Avery take a butcher knife from the kitchen and stab Teresa Halbach in the stomach.
What Steven Avery does then while Teresa is still begging for her life is he hands the knife to the 16-year-old boy and instructs him to cut her throat.
Sixteen-year-old Brendan, under the instruction of Steven Avery cuts Teresa Halbach's throat, but she still doesn't die.
There's additional information which includes manual strangulation and gunshot wounds.
After obtaining the information that was obtained from Brendan, we felt that there might be areas that we needed to recheck for blood evidence, for items used in the commission of these crimes.
And we are searching his residence and searching the garage near his residence because we now know that the garage was part of the crime scene.
Is there any DNA evidence backing up the kid's story? Yeah, we're not gonna comment on on that.
We obviously have a lot of evidence and I guess we can say that there is a substantial amount of physical evidence that now makes sense.
The hardest thing about this case is trying to figure out, now that we've gotten Brendan Dassey out of the case, we think, unless they decide to call him on rebuttal or something, how do we deal with the fact that the jurors already know it all? It's a clever move by them to not call Brendan in their case in chief.
- He's not a good witness.
- Which we predicted months ago.
He's, you know even once he starts incriminating himself and Steve, he can't do that consistently.
I mean, the story is changing dramatically every time he tells it.
So they put it out there in news conferences.
The public knows about it.
They believe it.
Um, they think it's the last nail in Steven's coffin.
And now the State leaves us in a position - of shadowboxing.
Um - Right.
By not putting it in.
I think our best option out of a lot of not so great options is is to work in ways to disprove this story as we go, without putting the story in.
I got 18:26.
After we had made entry into the garage, I had done initial overall photography.
We then spent some time just kind of walking around the garage, looking.
Did you and other investigators - begin moving items within this garage? - Yes.
We basically started in the northeast corner of the garage and began to remove items to see if there was any obvious sign of potential trace evidence on them or biological evidence.
Are you telling this jury that every one of those items was handled by law enforcement and examined? Virtually every item, yes.
Next, item 266.
Did you find anything near that compressor that you thought was interesting? As we reached this area, I was on I had to get onto my hands and my knees and utilized a flashlight to look under the compressor.
And I saw what appeared to be a flattened or a flattened bullet.
I've actually zoomed in to that area.
Tell the jury what we're looking at here, please.
The bullet right between the tent and the scale.
Let's look at exhibit number 2-7-0, please.
Tell us what we're looking at here.
This is a medium view photograph of what was ultimately identified with marker number 23: the bullet that was found under the compressor.
Can you identify the individual in this photograph, please? Detective Dave Remiker from Manitowoc County Sheriff's Department.
November 6.
I think that's the first time you actually searched the garage rather than simply sweeping through it to look for Ms.
Halbach? Yes, I believe so.
You folks found some empty shell casings for what looked like .
22 caliber rounds? - Yes.
- Ten of these? Something like that? - I think 11.
- Eleven? - I believe so.
- On the floor? Yes.
Uh, where there are shell casings, there may be bullets? - We found shell casings.
- Were you looking for bullets? We were looking for everything.
Found no bullets in the search on November 6 of the garage.
Correct.
Found no bullets any other time in Steven Avery's garage any time in November 2005.
Correct.
It was March 2, 2006 and you were present when one bullet fragment was found in that garage.
Correct.
Again, March 1 and 2, you were physically present both days.
Yes.
Did you see Lieutenant Lenk there on site at the Averys' on either day? - In March? - Yes.
March 1 and March 2.
Yeah, he was there.
He was, um - Yeah, he was there.
- Both days? I believe so.
Yes.
By March, why do you need any of the Manitowoc people? You've got two people charged with this.
You're searching one garage and one trailer.
That's it.
Uh And you have a well-established team of people outside Manitowoc County who now are intimately familiar with this investigation.
You need Manitowoc County investigators for what? For what? On March 1st and March 2nd.
"Lieutenant Lenk.
" Is that his name logged in on the second to the last line? Correct.
Now, this search is the search where a couple of bullet fragments were discovered, right? - Yes.
- Five months after the previous searches.
Four months.
I keep My math's bad, I guess.
- Four months? - Yes.
OK.
What was it, five entries to his garage the week of November 5th to the 12th? Correct.
At that time, though, none of the investigators knew that there would be evidence that suggested that perhaps Teresa Halbach had actually been shot in the head.
- That information came later.
- Correct.
Shortly before this March 1st and March 2nd search.
I don't know.
I'm not sure when that information came.
What I'm talking about here is by March 1st and March 2nd of 2006, which are important dates in this investigation.
You know that, right? Yes.
Additional search warrants were issued, right? Yes.
And by that time, through all of your investigation, you had found no physical evidence linking Teresa Halbach to Mr.
Avery's trailer or garage right up to February 28th.
I don't believe that's accurate.
What'd you find? We found shell casings in the garage that did match up to a rifle in the house.
I mean, you found shells all over the place.
Forty acres, right? - Oh, certainly, yes.
- A junkyard.
These people were sighting rifles, you knew that.
Shooting rabbits.
The mere existence of shells without a link to a particular body doesn't prove anything, does it? It could've been.
You know, we just No.
We didn't know.
OK, so in short, then, by March 1st and March 2nd when those search warrants were issued four months of investigation had found not one shred of Teresa Halbach's DNA anywhere in Mr.
Avery's trailer or garage.
Correct.
Thank you.
Do you remember on that first search a note with Ms.
Halbach's phone number being seized - from Mr.
Avery's computer table? - Yes, I do.
You recall now that that was seized on November 5th? - Yes.
- Would you say that that is some evidence - that is obviously linked to Ms.
Halbach? - Yes.
Also found on Mr.
Avery's computer table was a bill of sale.
You recall that now being seized on the 5th of November, don't you? - Yes, I do.
- Let me ask you, Mr.
Fassbender, do you know how many items of physical evidence were seized in this case alone, the Avery homicide investigation? Upwards of 970.
Can you remember all 970 items of evidence that were seized? No, I can't.
None of those exhibits ever show that Teresa was inside the trailer, do they? No.
Thank you.
That's all I have.
That's evidence that Bobby provided, isn't that right? - That's correct.
- That's all I've got.
Thank you, Judge.
I object.
Move to strike the question and the answer 'cause it's not the testimony.
Bobby Dassey never said he saw her in the trailer.
I'm gonna sustain the objection.
I think that's beyond the scope of redirect.
- How's it going? - Real good.
- How you doing? - Great.
- Huh? - They just started.
The judge is in.
Oh, yeah? Want me to hang your coat? I can take your coat.
Yeah.
Go ahead.
- Allan.
Right here.
- Wrong door.
Court is already in session so you need to be real quiet.
Thank you.
This is the top of the left eye socket, the top of the right eye socket, the left nasal bone.
We also have the entire right cheek bone, as well as a portion of the left cheek bone and a portion of bone that continues over and above the opening for the left ear.
And the next photograph? This is exhibit 3-8-4.
A sampling of skull fragments, two fragments in particular, showed defects or unnatural openings.
This semi-circular defect here that has another smaller unnatural opening here.
Was there anything else about this defect that was unusual? The cranial bones were taken for x-ray and what I'd like to call your attention to are these flecks, called radio opaque particles.
What does the presence of the internal beveling, coupled with the localized radio opaque particles, signify to you? What those defects look like signifies what happens to skull bone when it's subjected to a gunshot or gunshots.
All right, doctor.
Do you have an opinion as to the manner of death of this individual? The manner of death in this case was by homicidal violence.
I told you at the beginning of this case that we would be presenting not only cause of death but manner of death.
And when the jury has to put this whole puzzle together, the expert opinions by people like Leslie Eisenberg should all go a long way towards them making their final conclusion as to who it was who caused the death of Teresa Halbach.
I would ask if Detective Wiegert would bring you exhibit 237.
And can you identify that exhibit that's in front of you, Ms.
Culhane? Yes.
This is crime lab item designation "FL" and it is a lead bullet fragment.
And how did you process that bullet? In order to remove any residual DNA that might have been on the bullet, I washed it.
I put it in a test tube and washed it with some buffer that we use to extract the DNA.
And the liquid is what I performed the rest of my procedure on.
And were you able to develop a DNA profile from that washing - on item FL, the bullet? - Yes.
Do you have an opinion to a reasonable degree of scientific certainty whether Teresa Halbach is the source of the DNA on item FL, the bullet? Yes.
I believe she is the source of the DNA on the bullet.
Um let me ask you, did this match differ in any way from the previous matches that you culled? Yes, it did.
And could you explain to the jury what happened? When we begin the extraction, we begin what's called a manipulation control.
And it's basically a negative blank control.
And it helps us monitor if any unintentional DNA is introduced into the sample.
During the extraction procedure, I inadvertently introduced my own DNA into the negative control.
Did that have any impact on your interpretation of your results? It did not have any impact as far as the profile from the evidence sample.
It's just the fact that I introduced my own DNA into the manipulation control.
And how do you think your DNA profile got into that control? I believe my DNA profile was introduced during the extraction procedure when I was talking.
I was training two newer analysts, so I was explaining to them what I was doing as I was setting it up.
And apparently I felt as if I was far enough away from my work bench not to introduce my DNA, but apparently I was incorrect.
That manipulation control is designed - to catch a mistake that was made.
- Correct.
So does that mean though that a mistake couldn't have been made with the fragment itself? - That's what I'm That's my question.
- No.
No - The testing - I mean, are you - Do you feel you cleared that up then? - Yes.
Yes, I think it's clear that the profile on the bullet was Teresa Halbach's.
And the fact there was the contamination and Sherry Culhane's DNA profile was in the control had nothing to do with the DNA profile on the bullet.
I'm not wording this properly.
I'm sorry.
I mean, that Teresa's DNA couldn't have somehow just gotten swabbed on there in the lab.
Do you do understand what I'm saying? On the fragment.
- You know, that that mistake made - No.
No, that mistake was not made.
I know what you're saying.
That mistake was not made.
When we argued, by the way, in last March and filed a motion and said, "We want fair forensic testing.
All we want is someone to be there to observe this.
" They opposed it.
They said, "No.
We don't want anybody on Oh, there's so much more potential for contamination.
" That's what they said.
That our person being there would be more risk of contamination when she's contaminated it herself.
And used it all up so that we can't retest it.
You know, that's a concern.
Jerry, let me get this straight.
So you're saying that Halbach's DNA may have wound up on this bullet test because the DNA may have already been in a test tube? The DNA is so sensitive that these contamination logs prove that they get contamination from cases that aren't even in front of 'em.
Cases that are put away, locked up, done with, lo and behold, all of a sudden, bingo they get someone else's profile.
Where does that come from? They don't know.
Where did her DNA come from in that contaminated control? She doesn't know.
First she says "talking.
" Then she says "handling.
" They don't really know.
All they know is she's the source, but they don't know how it got there.
And that's the same thing If you go through these logs, you'll see how many times these errors come up and they really can't tell you how it got on there.
So in other words, if you don't know where Culhane's DNA came from, you might not know where Halbach's DNA came from.
That's right.
Remember now, this bullet wasn't even found in November.
This bullet was found under suspicious circumstances to begin with.
So she's testing it four months after all the other after she does all these other tests.
For some reason she still has the evidence from those other tests.
At her desk.
At her bench.
I'm showing you exhibit 341.
Does that look, uh Does that form look familiar to you? Yes.
This is something that's called a case communication record.
- Yes.
- And what you do is when you get a phone call from somebody, you'll be jotting notes as to the gist of the conversation? - That's correct.
- And did you do that in this case? - Yes.
- Is that your initials at the top? - Yes.
- All right.
Let me put this up on the Elmo, if I may.
This is one of those phone messages that you got from, - in this case, Mr.
Fassbender.
Correct? - Yes.
And he says there's gonna be a couple of items - from the house and the garage, right? - Right.
And then he says, or you wrote down, "Try to put her in his house or garage.
" Correct? Correct.
So you're being told before you do any of these tests that Mr.
Fassbender wants you to come up with results that put Teresa Halbach in Mr.
Avery's house or garage.
Isn't that right? I had that information, but that had no bearing on my analysis at all.
Of course not.
But that's what you're being told to do.
That was information in the investigation.
That's what Mr.
Fassbender told you he hoped you would be able to do with your tests.
Isn't that right? - Yeah, I assume so.
- OK.
Let's go to the bullet for a minute just to clear up a couple of things.
To the eye, you didn't see any blood visible.
- Correct.
- So you can't really say whether the DNA on that bullet came from blood or some other source, can you? All I can say was that it was nucleated cells.
Which could mean blood or any other source.
Right.
All right, now your lab's protocol, it recognizes that there may be some contamination in these tests.
Right? Yes.
And it tells you that if you go through these tests and the manipulation control is contaminated, that you are to report it as inconclusive for match purposes.
Correct.
Now here, you ran this test on the bullet and you got a result that showed the manipulation control was contaminated.
- Right? - Correct.
And according to protocol, you should've not said that that was Teresa Halbach's DNA on the bullet.
Your protocol told you that you were to report it as inconclusive.
- Isn't that right? - Yes.
And if that happens, usually what you do is you try and re-extract and run it again.
- Yes.
- But in this case, it was a one-time deal.
You put that bullet into a buffer and you took whatever sample there was - and you ran it all.
- Yes.
- So you could not redo the test.
- That's correct.
And if the test came back inconclusive you would not be able to put Teresa Halbach in Mr.
Avery's garage at any time.
Right? Like Mr.
Fassbender asked.
- There were reasons why - I'll get to that.
My point is this: this is the only time in your entire career you have ever filed a deviation of protocol so that you could make a call and include somebody, isn't it? The deviation that I requested was appropriate for this situation.
- It was OK'd and it was reported.
- But, ma'am you did not disclose in that report, that official report, that courts and juries and judges and lawyers and everybody else relies on, you did not disclose that in order to make that call, you had to do something so rare, you've never done it before, did you? No, I did not.
And you didn't put that in there because if you did, you wouldn't be able to satisfy Mr.
Fassbender's request that you put Teresa Halbach in Steven Avery's garage.
Right? That's not correct.
Well, let's close with this: other than that bullet, all your other tests, none of them put Teresa Halbach ever in his garage or his house - or any of his vehicles, right? - Correct.
Thank you.
If it's not a big deal, and it's a good sample, then why is the rule that you should toss it? Because I think the rule Well, I don't think anyone tossed it here.
The rule is a And I think as Sherry stated, 90 percent of the time, 99 percent, you know, is followed.
You need that guideline.
You need that standard.
But when you're dealing with such sensitive, sensitive technology, you have to allow an element of common sense and this clearly called for it, and Sherry made the right call.
Does it happen often? No.
And I think that shows the consistency and how good the scientific community is, that it's not something that has to be called upon often.
There was no sample left to redo, and it just had no impact at all on the interpretation of Teresa Halbach's DNA profile on that bullet.
I I know you feel that's clear, but it's up to the jury, you know, 12 people sitting in that box, to see whether it's, whether or not it's clear.
- Certainly.
- And we probably all understand that, understand your point, um, but I mean, does Do you really think that played very well with the jury? Sure.
I believe so.
I think they can understand it.
I think they're also normal, common sense people and they're gonna look back and say, "Yeah, it makes complete sense.
" She knew it was her profile and she knew she was teaching at the time and talking, so I mean, it all makes sense.
That's what I'm trying to get across.
If you want to be very rigid and say the protocol is the protocol and you can never deviate from this whatsoever, I don't think most people believe that's how life operates.
That sometimes you do have to deviate just to make sense.
Somethin' ain't right.
That's all I know.
They checked that property over.
They didn't find nothin'.
That's all I know.
Then they're finding something.
I don't know no more than that.
How can I know any more than that? You're the captain.
You get the captain's chair.
Where's the Morgan? I say, where is the blood? Now you cut a deer, uh Say you're butchering a deer - and here's the table.
- Yeah.
You're gonna have on the floor and all - I cut a lot of 'em up.
- Yeah.
No, I understand.
There's about five quarts of blood in the human body and, you know, there's no evidence of that, but we certainly can argue and we are going to argue "where is the blood?" Well, Jerry shoots me right now, something's gonna come out of me.
Maybe yes, maybe no.
Maybe a little bullshit.
That's a lot of bullshit coming out.
More ways than one.
I won't shoot you.
Don't worry.
- Thank you.
- Thank you.
High velocity spatter, you standing over somebody it goes - All over and it's tiny, tiny little - It's tiny, it's fat, it spreads, it's just gonna, like, cover all the junk.
The more cluttered it is, the harder it is going to be to clean up high velocity spatter.
Yeah.
I mean, it's real small droplets.
You will not be able to find every bit of it.
Let's talk about some specific results we haven't heard.
Gonna put on exhibit 237 right now.
See that crack that sort of runs north-south? Law enforcement actually took a jack hammer and tore up concrete chunks, right? That was my understanding.
And they did that because they thought, "Well, if the victim had been killed here, perhaps her blood would've soaked into those cracks," right? I assume so.
Did you find Teresa Halbach's DNA on any of those swabs? No, I did not.
If somebody had cleaned that garage floor with bleach before the police came, you would not expect to find any DNA, would you? No, I wouldn't.
But in this case, you did find DNA.
You found Mr.
Avery's own DNA.
That's correct.
She was shot a number of times.
There would be massive pools of blood.
It wasn't there.
Steven, I don't believe, is capable of sanitizing that house.
Very few evidence technicians would be capable of fully sanitizing an area like that.
And they know what to hide and how to hide it.
I don't think Steven could do that.
You checked item DD, .
22 caliber gun.
- That's a rifle, right? - Yes.
You know that if someone shoots another human being with a gun that's very close to them, there may be blowback, spatter of blood onto that weapon? I assume that's possible.
Well, that's what you were looking for.
I was simply looking for blood stains, yes.
- On the barrel.
- Correct.
- And you found none.
- Correct.
You never found any of Teresa Halbach's DNA on any kind of mattress or bedding, did you? I don't believe I examined any mattress or bedding.
OK.
So none of that was even sent to you, right? Correct.
You never found any DNA of Teresa Halbach's - on any carpet in his house, did you? - No.
There was a stain that was found that appeared to be a blood drop on a bathroom floor.
Right? There were several items on a bathroom floor.
I don't know which one you're referring to.
Well, let's put 'em all together.
All the bathroom items, the floor, the vanity, the sink, - you tested all of those? - Correct.
None of them had Teresa Halbach's blood on it, did they? No.
You tested many knives that were sent to you, right? - Yes.
- I see at least seven - just in the May 8th report.
Right? - Yes.
- No DNA of Teresa Halbach's.
- Correct.
By the way in all of this evidence that you've tested, all of it, did you ever find any DNA of a gentleman named Brendan Dassey anywhere? - In all of your tests? - No, I did not.
Not one shred, right? - No, I did not find his DNA.
- And you had his profile.
Yes, I did.
In March of '06, we heard you in this room say that you believed Teresa Halbach was stabbed in Steven Avery's trailer and we heard versions of Steven Avery's involvement in this case, attacking her in the trailer.
Um, do you believe Do you I didn't hear you present evidence as to where exactly you believe parts of this crime were committed.
Yeah, and until my closing argument, you're not gonna hear a summary from me as to how I believe that this entire crime occurred.
And let me also just remind you that there is another case that is pending at this time, the Brendan Dassey case, which may or may not be something that's raised in this prosecution.
If it is not, some of those details you may not hear.
Is that just the nature of having a circumstantial case? Um Part of the trick of prosecuting a case - of that nature? - I don't necessarily think this is a trick and I don't necessarily think it's circumstantial.
We have lots and lots of scientific evidence in this case that points to one individual having committed the crime and I'm confident that the verdict will will speak the truth.
Let's see, we've had 18 days of testimony.
- Mm-hm.
- At least 15 or 16 of those days, we have been able to bring out a theme of our defense again and again.
And that's remarkable.
But it still all comes down to a key in his bedroom on the seventh search, bones outside of his bedroom when there's a perfectly good working smelter that would be a much better place to burn, - blood in the RAV4 - His.
His.
His blood in the RAV4.
And a contaminated bullet in the garage.
But even there, in describing these, you're already doing some of the explaining that we've gotta do and let me put it this way: if ever someone's bones are found 20 feet out my bedroom window in my backyard, - I'm gonna be a worried guy.
- Yeah, I would be, too.
There were no entire bones that were found, but at least a fragment or more of almost every bone below the neck was recovered in that burn pit.
Did you find evidence of any human bone identified as being collected from a site other than the burn pit behind the defendant's garage? Human bone also was collected from what was designated "burn barrel number two.
" Now, you did offer an opinion that you believe the location for the primary burning episode was the burn pit behind the defendant's garage, is that correct? That is correct.
There was a third site, was there not? Yes.
- And this would be the quarry pile.
- Yes, sir.
You found in the material from the quarry pile two fragments that appeared to you to be pelvic bone.
That's correct.
You suspected them of being human pelvic bone.
That's correct.
The charring and calcined condition that you saw was essentially consistent with the charring and the calcined condition in the Janda burn barrel and behind Steven Avery's garage.
- That is correct, sir.
- Nowhere did you find evidence that you were looking at bone fragments from more than one body.
That is correct, sir.
So what you conclude is that by human agency, bone fragments here were moved.
Some bone fragments identified as human had been moved.
- That's correct.
- All right.
Um The vast majority of the human bone fragments was found behind Steven Avery's garage.
That's correct.
Why were they inconsistent with human bone fragments that could've been moved to that site after burning? I would expect to see some breakage to some fragments with that transport and I did not see anything like that.
Well, we do know that the very recovery of burnt bone fragments from behind Mr.
Avery's garage involved shoveling.
Correct? - That's correct.
- Transport to a sifting screen.
- Yes, sir.
- Sifting on the screen.
That's correct.
So you're not able to say that the bone fragments you found are inconsistent with having been transported to the burn area and poured out there.
Based on the volume of human bone fragments behind the garage, I find it highly unlikely that that was not the primary burn location.
All right.
But I guess that rests on an opinion that transport in a barrel or some other container and being poured out would've done more damage to those human bone fragments than shoveling, sifting, putting into a box and transporting to Madison would've done? - I really don't know.
I don't know.
- You don't know one way or the other? That's correct.
And you cannot reasonably rule out another possible burn site, can you? Based on the information I have at hand, I cannot.
That's all I have.
Mr.
Ertl, showing you exhibit number 160, can you identify that, please? It's an email to and from Tom Fassbender and myself.
All right.
And in this email, you state, "In regards to the burn pit, our involvement began with a request to use our sifting equipment.
The scene had obviously been altered at that point.
" - Is that right? - Correct.
And then would you go on and read the next sentence, please? "Had we been working any of these scenes from start to finish, there would likely have been more thorough photo record done by us.
However, under the circumstances, we were merely able to provide technical assistance rather than complete scene processing.
" OK.
More typically, if you're called to the scene to process potential evidence, you're able to do so from start to finish, right? I'd say in the majority of cases, when we arrive at the scene we are given over control and we take the lead.
To your knowledge, did Ms.
Fassbender call a forensic anthropologist out to the scene of the burn pit? - Not to my knowledge.
- OK.
And this area, the whole area that was excavated was about how big? Probably roughly the size of this table I'm sitting at.
And when you'd bring over a shovel here or there, nobody kept track of where exactly in that area any particular suspected bone may have been, right? No.
Everything that was collected in this area was placed together in a box.
- This area being that four by five feet - This four by five foot ash pile was placed together in a box.
There was no systematic approach to the collection of the evidence at first processing uh, from what I saw.
I know there was no grid imposed at that time during the initial excavation.
Um, I was informed that shovels were used in order to do that, and it wasn't, shall we say, a more forensic archaeological approach.
OK, so other than nitpicking, why does this matter? Why does it matter? Well, it matters as far as being able to tell things about the circumstances surrounding the burn of the body.
Where the body was burned.
Was it moved? Is this the actual location or not? And based on the recovery method that was used here, are you able to offer an opinion about where these human remains were burned? - No, I'm not.
- Can you agree with Dr.
Eisenberg's opinion that probably the area behind Mr.
Avery's garage was the original burn site? - No.
- Why not? I've been involved in cases where human cremains have been burned in one location and moved to another location.
And in those cases, in fact, the actual location where the bones have been moved to, tends to be the location where most of the remains are.
The dispute is not whether the bones were moved after they were burned.
They were.
I don't think any reasonable person would disagree with that.
But, you know, the key issue is the State says they were burned behind Steven's place and then a few of them were moved from there.
We say they most likely were burned somewhere else.
There were better burn sites to cremate a body to that condition.
And then somebody who knew the cops would be very interested in pinning this on Steven, dumped most of the bones, probably thought he was dumping all of the bones in a pile in Steven's burn area and then sort of sprink you know, sprinkled them around in the grass so there'd be no missing them.
Um And then put the burn barrel back in its place, not knowing that a few of the bones remained in the muck and ash in the Janda burn barrel.
I try to rack my brain and think and think, "Who's doing this to me?" I can't figure it out.
I still come up to a dead end.
Just like the last case, I couldn't figure it out.
I'm not in there.
- What time you got? - Five after.
Five after already? Good thing it ain't an emergency.
Hey, that's hard on your diabetes.
I don't care.
- You can go in now.
- OK.
Come on.
This is the rear cargo area of the Toyota RAV4.
In this area, there are numerous stains, and they all are, basically they're described as contact transfer stains.
Describe these stains that you observed in this portion of the vehicle.
This stain right here, this is a just a classic example of bloody hair transferring onto an unstained surface.
It is has enough blood there that it also shows a bit of a flow pattern off of the bottom of that.
But you can see that it is thicker here and as the length draws out, it comes to a point.
This is indicative of bloody hair, transferring the blood from those from that head hair onto this surface.
The blood in the RAV4, frankly, helps us.
Her blood.
Helps us a lot.
Because if he killed her in the garage or killed her in his own house somewhere or nearby, he doesn't need to use the RAV4 to carry her body over to the burn pit if that's where you're saying she was burned.
The only reason you would put her body in the car is if you're gonna take it somewhere farther than your own backyard burn pit.
And that's further evidence, we think that goes to show she was not burned where they found her.
That she was wherever she was killed, she was thrown in the back of the the RAV4 and taken someplace to be burned.
The State will call Scott Tadych to the stand.
It was the fire that I remembered most of that day.
All right, let's back up just a little bit.
Would you tell the jury what you did that afternoon, please? That morning I was up at my mother's, she had surgery.
And then I left her and I went to the woods hunting.
I went to my trailer, then I went to the woods hunting.
About what time was it you got out into the woods? About 3:00.
On your way to deer hunting, that would be just before 3:00 p.
m.
, - did you observe anybody on the roadway? - Yes, I did.
I saw Bobby Dassey on highway 147.
I was going west and he was going east.
Later that night, did you return to the Janda property? - Yes, I did.
- Could you tell the jury - what you saw at that time, please? - I saw a big fire.
And can you tell the jury where you saw the fire, please? - Right there.
- Are you able to estimate how high or how tall the flames were as you were watching there about 7:45? They were almost as tall as the garage.
- All right.
So - Eight, ten feet.
I don't know.
Ten feet, maybe.
Ten feet tall is what the flames were.
- Big fire.
- It's a big fire.
All right.
Did you see Steven Avery standing next to or near that fire? Yes, I did.
You remember October 31, 2005 because you skipped work entirely that day.
I didn't skip work.
I took vacation that day to go to be with my mother.
Other than your mother, who would've seen you on October 31st before you say Bobby Dassey saw you as the two of you drive past one another on highway 147? Nobody.
Just I went from the hospital to my trailer.
You get home, you very quickly get ready to go off deer hunting.
Yes.
On your way to hunting is when you see Bobby Dassey.
Correct.
And you got home from the hospital at about 3:15 that afternoon, - you say, to your home? - No.
I got home from the hospital between 2:30 and quarter to 3:00.
And that's your recollection today, oh, 15, 16 months after the events? - Yes.
- All right.
Do you remember talking to a couple of law enforcement officers about this back on, uh November 29, 2005? Yes.
And do you remember what you told them then about when you got home from the hospital? No, I don't recall.
I'll show you exhibit 356, which is a Division of Criminal Investigation report.
The second paragraph may be the most helpful, which you're welcome to read to yourself, any or all of that report.
- Did that help refresh your recollection? - Yeah, it did.
Did you tell the police on November 29 that you arrived home at 3:15? I may have.
Well, do you remember telling them that or not? No, I don't remember telling them that.
It's been such a long time.
Do you think maybe your recollection back on November 29, 2005, was maybe a little better than it is today? Yeah.
It was just one month after the events in question at that point.
Right.
Was November 29 also the day that you told the police that the flames were three feet high? Must have.
And sometime around the time you talked to Investigator Dedering on the occasion we just described, were you trying to sell one of the Dassey boys' .
22s to a man named Jay Mathis at work? - No.
- You weren't? You had, I think, said that on Halloween you see Ms.
Halbach walking towards your Uncle Steven's trailer? Yes.
Not too long after that, you leave the house with your bow to go hunting.
Yes.
As you drove off then to go deer hunting, it's what, 2:45 or 3:00, - somewhere in that range? - Yes.
- Anybody see you as you're going hunting? - Yes.
- Who? - Scott Tadych.
- Scott Tadych? - Yes.
OK.
What you told Investigator Dedering is that Mr.
Tadych would be able to verify precisely what time he had seen you? - Yes.
- Why did you think that? Maybe he looked at his clock in his truck.
Had you talked with Mr.
Tadych about whether he could - verify precisely when he saw you? - No.
You were just hoping or guessing that maybe he could? Yes.
We had two people who alibied only themselves.
They alibied each other.
Nobody else saw them during this critical time period.
They were on the property, they had access, they One of them was directly contradicted by an independent witness um as to the critical time of when she was supposedly last seen.
What time did you find that you got to the end of Avery Road where you would drop the Dassey boys off? Um, between 3:30 and 4:00 Or 3:40.
- Between 3:30 and 3:40? - Yes.
And how do you know that? 'Cause it was about the same time every day.
Same route.
OK.
During the week that began on Monday, October 31, 2005, do you remember seeing anything that, you know, you remembered later when you dropped the Dassey boys off Monday that week? I, um, remember seeing a woman taking photographs.
Could you tell what the woman was taking photographs of? A van.
OK, so and again, that would've been about when? What time of day? 3:30.
I'm sorry, 3:30 to 3:40.
That's all I have.
Thank you.
And I assume you're trying to sort of poke holes in the State's timeline, is that what that was all about? The implicit premise in your question is that the State has a timeline and we're sitting poking holes.
I think this is the most reliable person to offer a timeline.
She is not connected to any of the parties.
She, as a matter of employment, had a very good reason to know what the time was within about a ten minute window.
And I'm surprised that it's the Defense who had to call this witness to try to establish a reliable idea about time.
Except that the time doesn't fit with their theory.
- That's the problem.
- Well, that's kind of what I'm getting at.
The time doesn't fit with their Brendan Dassey theory.
I don't know that they've actually said when this all happened.
They did say during the whole Dassey, you know, scenario that he got off the bus, he got the mail, rode over and could hear the screams.
And this really is a problem for that.
Bobby Dassey testified here that at about 2:45 in the afternoon, he sees the female photographer out the window and she appears to be taking photographs.
And then sees her walking towards Mr.
Avery's trailer.
Takes a shower, doesn't see her afterward.
How does this help Steve Avery? I mean So if what this defense said I mean, what the prosecution says happened, happened an hour later? I mean, I That's kind of what I'm getting at.
Standing alone outside the Brendan Dassey house Listen to the argument that Mr.
Kratz made on why he thinks that charge of false imprisonment shouldn't be dismissed.
What was it based primarily on? One witness.
Bobby Dassey.
This witness today, with no interest whatsoever, has a completely different timeline that would not fit Mr.
Dassey.
The evidence don't make no sense.
The State ain't gotta prove nothin'.
A innocent person always gotta prove his self.
And how do you prove the Sheriff's Department's doing something? I got a hunch that's gonna be hard to do.
No sane lawyer looks forward to presenting an argument to a jury that the police framed his client.
No sane lawyer looks forward to doing that.
You know, the police many people, outside of large cities, at least, are raised to believe are the good guys.
And for many Americans, their experiences with the police essentially confirm the idea that the police are the good guys.
So when you When you confront the the need to present a defense that your client was framed and worse yet, framed by law enforcement officers, you're not happy.
The doorway where he comes out One of the things that the State argued was that it would've taken a wide ranging conspiracy of so many people to pull this off and that there's just no way this could be possible.
But in fact, that's not true.
Really, two people could've done this easily enough if they had the motive to do it.
Maybe one, even.
And the whole argument, "Well, why would they risk doing this and risk getting caught?" You have to understand, they probably would have no fear of ever being caught doing this.
You know? Who better than a police officer would know how to frame somebody? Please raise your right hand.
Do you solemnly swear that the testimony you shall give in the matter now before the court be the truth, the whole truth and nothing but the truth, so help you God? - I do.
- Please be seated.
Please state your name and spell your last name for the record.
James M.
Lenk.
L-E-N-K.
What Steven Avery does then while Teresa is still begging for her life is he hands the knife to the 16-year-old boy and instructs him to cut her throat.
Sixteen-year-old Brendan, under the instruction of Steven Avery cuts Teresa Halbach's throat, but she still doesn't die.
There's additional information which includes manual strangulation and gunshot wounds.
After obtaining the information that was obtained from Brendan, we felt that there might be areas that we needed to recheck for blood evidence, for items used in the commission of these crimes.
And we are searching his residence and searching the garage near his residence because we now know that the garage was part of the crime scene.
Is there any DNA evidence backing up the kid's story? Yeah, we're not gonna comment on on that.
We obviously have a lot of evidence and I guess we can say that there is a substantial amount of physical evidence that now makes sense.
The hardest thing about this case is trying to figure out, now that we've gotten Brendan Dassey out of the case, we think, unless they decide to call him on rebuttal or something, how do we deal with the fact that the jurors already know it all? It's a clever move by them to not call Brendan in their case in chief.
- He's not a good witness.
- Which we predicted months ago.
He's, you know even once he starts incriminating himself and Steve, he can't do that consistently.
I mean, the story is changing dramatically every time he tells it.
So they put it out there in news conferences.
The public knows about it.
They believe it.
Um, they think it's the last nail in Steven's coffin.
And now the State leaves us in a position - of shadowboxing.
Um - Right.
By not putting it in.
I think our best option out of a lot of not so great options is is to work in ways to disprove this story as we go, without putting the story in.
I got 18:26.
After we had made entry into the garage, I had done initial overall photography.
We then spent some time just kind of walking around the garage, looking.
Did you and other investigators - begin moving items within this garage? - Yes.
We basically started in the northeast corner of the garage and began to remove items to see if there was any obvious sign of potential trace evidence on them or biological evidence.
Are you telling this jury that every one of those items was handled by law enforcement and examined? Virtually every item, yes.
Next, item 266.
Did you find anything near that compressor that you thought was interesting? As we reached this area, I was on I had to get onto my hands and my knees and utilized a flashlight to look under the compressor.
And I saw what appeared to be a flattened or a flattened bullet.
I've actually zoomed in to that area.
Tell the jury what we're looking at here, please.
The bullet right between the tent and the scale.
Let's look at exhibit number 2-7-0, please.
Tell us what we're looking at here.
This is a medium view photograph of what was ultimately identified with marker number 23: the bullet that was found under the compressor.
Can you identify the individual in this photograph, please? Detective Dave Remiker from Manitowoc County Sheriff's Department.
November 6.
I think that's the first time you actually searched the garage rather than simply sweeping through it to look for Ms.
Halbach? Yes, I believe so.
You folks found some empty shell casings for what looked like .
22 caliber rounds? - Yes.
- Ten of these? Something like that? - I think 11.
- Eleven? - I believe so.
- On the floor? Yes.
Uh, where there are shell casings, there may be bullets? - We found shell casings.
- Were you looking for bullets? We were looking for everything.
Found no bullets in the search on November 6 of the garage.
Correct.
Found no bullets any other time in Steven Avery's garage any time in November 2005.
Correct.
It was March 2, 2006 and you were present when one bullet fragment was found in that garage.
Correct.
Again, March 1 and 2, you were physically present both days.
Yes.
Did you see Lieutenant Lenk there on site at the Averys' on either day? - In March? - Yes.
March 1 and March 2.
Yeah, he was there.
He was, um - Yeah, he was there.
- Both days? I believe so.
Yes.
By March, why do you need any of the Manitowoc people? You've got two people charged with this.
You're searching one garage and one trailer.
That's it.
Uh And you have a well-established team of people outside Manitowoc County who now are intimately familiar with this investigation.
You need Manitowoc County investigators for what? For what? On March 1st and March 2nd.
"Lieutenant Lenk.
" Is that his name logged in on the second to the last line? Correct.
Now, this search is the search where a couple of bullet fragments were discovered, right? - Yes.
- Five months after the previous searches.
Four months.
I keep My math's bad, I guess.
- Four months? - Yes.
OK.
What was it, five entries to his garage the week of November 5th to the 12th? Correct.
At that time, though, none of the investigators knew that there would be evidence that suggested that perhaps Teresa Halbach had actually been shot in the head.
- That information came later.
- Correct.
Shortly before this March 1st and March 2nd search.
I don't know.
I'm not sure when that information came.
What I'm talking about here is by March 1st and March 2nd of 2006, which are important dates in this investigation.
You know that, right? Yes.
Additional search warrants were issued, right? Yes.
And by that time, through all of your investigation, you had found no physical evidence linking Teresa Halbach to Mr.
Avery's trailer or garage right up to February 28th.
I don't believe that's accurate.
What'd you find? We found shell casings in the garage that did match up to a rifle in the house.
I mean, you found shells all over the place.
Forty acres, right? - Oh, certainly, yes.
- A junkyard.
These people were sighting rifles, you knew that.
Shooting rabbits.
The mere existence of shells without a link to a particular body doesn't prove anything, does it? It could've been.
You know, we just No.
We didn't know.
OK, so in short, then, by March 1st and March 2nd when those search warrants were issued four months of investigation had found not one shred of Teresa Halbach's DNA anywhere in Mr.
Avery's trailer or garage.
Correct.
Thank you.
Do you remember on that first search a note with Ms.
Halbach's phone number being seized - from Mr.
Avery's computer table? - Yes, I do.
You recall now that that was seized on November 5th? - Yes.
- Would you say that that is some evidence - that is obviously linked to Ms.
Halbach? - Yes.
Also found on Mr.
Avery's computer table was a bill of sale.
You recall that now being seized on the 5th of November, don't you? - Yes, I do.
- Let me ask you, Mr.
Fassbender, do you know how many items of physical evidence were seized in this case alone, the Avery homicide investigation? Upwards of 970.
Can you remember all 970 items of evidence that were seized? No, I can't.
None of those exhibits ever show that Teresa was inside the trailer, do they? No.
Thank you.
That's all I have.
That's evidence that Bobby provided, isn't that right? - That's correct.
- That's all I've got.
Thank you, Judge.
I object.
Move to strike the question and the answer 'cause it's not the testimony.
Bobby Dassey never said he saw her in the trailer.
I'm gonna sustain the objection.
I think that's beyond the scope of redirect.
- How's it going? - Real good.
- How you doing? - Great.
- Huh? - They just started.
The judge is in.
Oh, yeah? Want me to hang your coat? I can take your coat.
Yeah.
Go ahead.
- Allan.
Right here.
- Wrong door.
Court is already in session so you need to be real quiet.
Thank you.
This is the top of the left eye socket, the top of the right eye socket, the left nasal bone.
We also have the entire right cheek bone, as well as a portion of the left cheek bone and a portion of bone that continues over and above the opening for the left ear.
And the next photograph? This is exhibit 3-8-4.
A sampling of skull fragments, two fragments in particular, showed defects or unnatural openings.
This semi-circular defect here that has another smaller unnatural opening here.
Was there anything else about this defect that was unusual? The cranial bones were taken for x-ray and what I'd like to call your attention to are these flecks, called radio opaque particles.
What does the presence of the internal beveling, coupled with the localized radio opaque particles, signify to you? What those defects look like signifies what happens to skull bone when it's subjected to a gunshot or gunshots.
All right, doctor.
Do you have an opinion as to the manner of death of this individual? The manner of death in this case was by homicidal violence.
I told you at the beginning of this case that we would be presenting not only cause of death but manner of death.
And when the jury has to put this whole puzzle together, the expert opinions by people like Leslie Eisenberg should all go a long way towards them making their final conclusion as to who it was who caused the death of Teresa Halbach.
I would ask if Detective Wiegert would bring you exhibit 237.
And can you identify that exhibit that's in front of you, Ms.
Culhane? Yes.
This is crime lab item designation "FL" and it is a lead bullet fragment.
And how did you process that bullet? In order to remove any residual DNA that might have been on the bullet, I washed it.
I put it in a test tube and washed it with some buffer that we use to extract the DNA.
And the liquid is what I performed the rest of my procedure on.
And were you able to develop a DNA profile from that washing - on item FL, the bullet? - Yes.
Do you have an opinion to a reasonable degree of scientific certainty whether Teresa Halbach is the source of the DNA on item FL, the bullet? Yes.
I believe she is the source of the DNA on the bullet.
Um let me ask you, did this match differ in any way from the previous matches that you culled? Yes, it did.
And could you explain to the jury what happened? When we begin the extraction, we begin what's called a manipulation control.
And it's basically a negative blank control.
And it helps us monitor if any unintentional DNA is introduced into the sample.
During the extraction procedure, I inadvertently introduced my own DNA into the negative control.
Did that have any impact on your interpretation of your results? It did not have any impact as far as the profile from the evidence sample.
It's just the fact that I introduced my own DNA into the manipulation control.
And how do you think your DNA profile got into that control? I believe my DNA profile was introduced during the extraction procedure when I was talking.
I was training two newer analysts, so I was explaining to them what I was doing as I was setting it up.
And apparently I felt as if I was far enough away from my work bench not to introduce my DNA, but apparently I was incorrect.
That manipulation control is designed - to catch a mistake that was made.
- Correct.
So does that mean though that a mistake couldn't have been made with the fragment itself? - That's what I'm That's my question.
- No.
No - The testing - I mean, are you - Do you feel you cleared that up then? - Yes.
Yes, I think it's clear that the profile on the bullet was Teresa Halbach's.
And the fact there was the contamination and Sherry Culhane's DNA profile was in the control had nothing to do with the DNA profile on the bullet.
I'm not wording this properly.
I'm sorry.
I mean, that Teresa's DNA couldn't have somehow just gotten swabbed on there in the lab.
Do you do understand what I'm saying? On the fragment.
- You know, that that mistake made - No.
No, that mistake was not made.
I know what you're saying.
That mistake was not made.
When we argued, by the way, in last March and filed a motion and said, "We want fair forensic testing.
All we want is someone to be there to observe this.
" They opposed it.
They said, "No.
We don't want anybody on Oh, there's so much more potential for contamination.
" That's what they said.
That our person being there would be more risk of contamination when she's contaminated it herself.
And used it all up so that we can't retest it.
You know, that's a concern.
Jerry, let me get this straight.
So you're saying that Halbach's DNA may have wound up on this bullet test because the DNA may have already been in a test tube? The DNA is so sensitive that these contamination logs prove that they get contamination from cases that aren't even in front of 'em.
Cases that are put away, locked up, done with, lo and behold, all of a sudden, bingo they get someone else's profile.
Where does that come from? They don't know.
Where did her DNA come from in that contaminated control? She doesn't know.
First she says "talking.
" Then she says "handling.
" They don't really know.
All they know is she's the source, but they don't know how it got there.
And that's the same thing If you go through these logs, you'll see how many times these errors come up and they really can't tell you how it got on there.
So in other words, if you don't know where Culhane's DNA came from, you might not know where Halbach's DNA came from.
That's right.
Remember now, this bullet wasn't even found in November.
This bullet was found under suspicious circumstances to begin with.
So she's testing it four months after all the other after she does all these other tests.
For some reason she still has the evidence from those other tests.
At her desk.
At her bench.
I'm showing you exhibit 341.
Does that look, uh Does that form look familiar to you? Yes.
This is something that's called a case communication record.
- Yes.
- And what you do is when you get a phone call from somebody, you'll be jotting notes as to the gist of the conversation? - That's correct.
- And did you do that in this case? - Yes.
- Is that your initials at the top? - Yes.
- All right.
Let me put this up on the Elmo, if I may.
This is one of those phone messages that you got from, - in this case, Mr.
Fassbender.
Correct? - Yes.
And he says there's gonna be a couple of items - from the house and the garage, right? - Right.
And then he says, or you wrote down, "Try to put her in his house or garage.
" Correct? Correct.
So you're being told before you do any of these tests that Mr.
Fassbender wants you to come up with results that put Teresa Halbach in Mr.
Avery's house or garage.
Isn't that right? I had that information, but that had no bearing on my analysis at all.
Of course not.
But that's what you're being told to do.
That was information in the investigation.
That's what Mr.
Fassbender told you he hoped you would be able to do with your tests.
Isn't that right? - Yeah, I assume so.
- OK.
Let's go to the bullet for a minute just to clear up a couple of things.
To the eye, you didn't see any blood visible.
- Correct.
- So you can't really say whether the DNA on that bullet came from blood or some other source, can you? All I can say was that it was nucleated cells.
Which could mean blood or any other source.
Right.
All right, now your lab's protocol, it recognizes that there may be some contamination in these tests.
Right? Yes.
And it tells you that if you go through these tests and the manipulation control is contaminated, that you are to report it as inconclusive for match purposes.
Correct.
Now here, you ran this test on the bullet and you got a result that showed the manipulation control was contaminated.
- Right? - Correct.
And according to protocol, you should've not said that that was Teresa Halbach's DNA on the bullet.
Your protocol told you that you were to report it as inconclusive.
- Isn't that right? - Yes.
And if that happens, usually what you do is you try and re-extract and run it again.
- Yes.
- But in this case, it was a one-time deal.
You put that bullet into a buffer and you took whatever sample there was - and you ran it all.
- Yes.
- So you could not redo the test.
- That's correct.
And if the test came back inconclusive you would not be able to put Teresa Halbach in Mr.
Avery's garage at any time.
Right? Like Mr.
Fassbender asked.
- There were reasons why - I'll get to that.
My point is this: this is the only time in your entire career you have ever filed a deviation of protocol so that you could make a call and include somebody, isn't it? The deviation that I requested was appropriate for this situation.
- It was OK'd and it was reported.
- But, ma'am you did not disclose in that report, that official report, that courts and juries and judges and lawyers and everybody else relies on, you did not disclose that in order to make that call, you had to do something so rare, you've never done it before, did you? No, I did not.
And you didn't put that in there because if you did, you wouldn't be able to satisfy Mr.
Fassbender's request that you put Teresa Halbach in Steven Avery's garage.
Right? That's not correct.
Well, let's close with this: other than that bullet, all your other tests, none of them put Teresa Halbach ever in his garage or his house - or any of his vehicles, right? - Correct.
Thank you.
If it's not a big deal, and it's a good sample, then why is the rule that you should toss it? Because I think the rule Well, I don't think anyone tossed it here.
The rule is a And I think as Sherry stated, 90 percent of the time, 99 percent, you know, is followed.
You need that guideline.
You need that standard.
But when you're dealing with such sensitive, sensitive technology, you have to allow an element of common sense and this clearly called for it, and Sherry made the right call.
Does it happen often? No.
And I think that shows the consistency and how good the scientific community is, that it's not something that has to be called upon often.
There was no sample left to redo, and it just had no impact at all on the interpretation of Teresa Halbach's DNA profile on that bullet.
I I know you feel that's clear, but it's up to the jury, you know, 12 people sitting in that box, to see whether it's, whether or not it's clear.
- Certainly.
- And we probably all understand that, understand your point, um, but I mean, does Do you really think that played very well with the jury? Sure.
I believe so.
I think they can understand it.
I think they're also normal, common sense people and they're gonna look back and say, "Yeah, it makes complete sense.
" She knew it was her profile and she knew she was teaching at the time and talking, so I mean, it all makes sense.
That's what I'm trying to get across.
If you want to be very rigid and say the protocol is the protocol and you can never deviate from this whatsoever, I don't think most people believe that's how life operates.
That sometimes you do have to deviate just to make sense.
Somethin' ain't right.
That's all I know.
They checked that property over.
They didn't find nothin'.
That's all I know.
Then they're finding something.
I don't know no more than that.
How can I know any more than that? You're the captain.
You get the captain's chair.
Where's the Morgan? I say, where is the blood? Now you cut a deer, uh Say you're butchering a deer - and here's the table.
- Yeah.
You're gonna have on the floor and all - I cut a lot of 'em up.
- Yeah.
No, I understand.
There's about five quarts of blood in the human body and, you know, there's no evidence of that, but we certainly can argue and we are going to argue "where is the blood?" Well, Jerry shoots me right now, something's gonna come out of me.
Maybe yes, maybe no.
Maybe a little bullshit.
That's a lot of bullshit coming out.
More ways than one.
I won't shoot you.
Don't worry.
- Thank you.
- Thank you.
High velocity spatter, you standing over somebody it goes - All over and it's tiny, tiny little - It's tiny, it's fat, it spreads, it's just gonna, like, cover all the junk.
The more cluttered it is, the harder it is going to be to clean up high velocity spatter.
Yeah.
I mean, it's real small droplets.
You will not be able to find every bit of it.
Let's talk about some specific results we haven't heard.
Gonna put on exhibit 237 right now.
See that crack that sort of runs north-south? Law enforcement actually took a jack hammer and tore up concrete chunks, right? That was my understanding.
And they did that because they thought, "Well, if the victim had been killed here, perhaps her blood would've soaked into those cracks," right? I assume so.
Did you find Teresa Halbach's DNA on any of those swabs? No, I did not.
If somebody had cleaned that garage floor with bleach before the police came, you would not expect to find any DNA, would you? No, I wouldn't.
But in this case, you did find DNA.
You found Mr.
Avery's own DNA.
That's correct.
She was shot a number of times.
There would be massive pools of blood.
It wasn't there.
Steven, I don't believe, is capable of sanitizing that house.
Very few evidence technicians would be capable of fully sanitizing an area like that.
And they know what to hide and how to hide it.
I don't think Steven could do that.
You checked item DD, .
22 caliber gun.
- That's a rifle, right? - Yes.
You know that if someone shoots another human being with a gun that's very close to them, there may be blowback, spatter of blood onto that weapon? I assume that's possible.
Well, that's what you were looking for.
I was simply looking for blood stains, yes.
- On the barrel.
- Correct.
- And you found none.
- Correct.
You never found any of Teresa Halbach's DNA on any kind of mattress or bedding, did you? I don't believe I examined any mattress or bedding.
OK.
So none of that was even sent to you, right? Correct.
You never found any DNA of Teresa Halbach's - on any carpet in his house, did you? - No.
There was a stain that was found that appeared to be a blood drop on a bathroom floor.
Right? There were several items on a bathroom floor.
I don't know which one you're referring to.
Well, let's put 'em all together.
All the bathroom items, the floor, the vanity, the sink, - you tested all of those? - Correct.
None of them had Teresa Halbach's blood on it, did they? No.
You tested many knives that were sent to you, right? - Yes.
- I see at least seven - just in the May 8th report.
Right? - Yes.
- No DNA of Teresa Halbach's.
- Correct.
By the way in all of this evidence that you've tested, all of it, did you ever find any DNA of a gentleman named Brendan Dassey anywhere? - In all of your tests? - No, I did not.
Not one shred, right? - No, I did not find his DNA.
- And you had his profile.
Yes, I did.
In March of '06, we heard you in this room say that you believed Teresa Halbach was stabbed in Steven Avery's trailer and we heard versions of Steven Avery's involvement in this case, attacking her in the trailer.
Um, do you believe Do you I didn't hear you present evidence as to where exactly you believe parts of this crime were committed.
Yeah, and until my closing argument, you're not gonna hear a summary from me as to how I believe that this entire crime occurred.
And let me also just remind you that there is another case that is pending at this time, the Brendan Dassey case, which may or may not be something that's raised in this prosecution.
If it is not, some of those details you may not hear.
Is that just the nature of having a circumstantial case? Um Part of the trick of prosecuting a case - of that nature? - I don't necessarily think this is a trick and I don't necessarily think it's circumstantial.
We have lots and lots of scientific evidence in this case that points to one individual having committed the crime and I'm confident that the verdict will will speak the truth.
Let's see, we've had 18 days of testimony.
- Mm-hm.
- At least 15 or 16 of those days, we have been able to bring out a theme of our defense again and again.
And that's remarkable.
But it still all comes down to a key in his bedroom on the seventh search, bones outside of his bedroom when there's a perfectly good working smelter that would be a much better place to burn, - blood in the RAV4 - His.
His.
His blood in the RAV4.
And a contaminated bullet in the garage.
But even there, in describing these, you're already doing some of the explaining that we've gotta do and let me put it this way: if ever someone's bones are found 20 feet out my bedroom window in my backyard, - I'm gonna be a worried guy.
- Yeah, I would be, too.
There were no entire bones that were found, but at least a fragment or more of almost every bone below the neck was recovered in that burn pit.
Did you find evidence of any human bone identified as being collected from a site other than the burn pit behind the defendant's garage? Human bone also was collected from what was designated "burn barrel number two.
" Now, you did offer an opinion that you believe the location for the primary burning episode was the burn pit behind the defendant's garage, is that correct? That is correct.
There was a third site, was there not? Yes.
- And this would be the quarry pile.
- Yes, sir.
You found in the material from the quarry pile two fragments that appeared to you to be pelvic bone.
That's correct.
You suspected them of being human pelvic bone.
That's correct.
The charring and calcined condition that you saw was essentially consistent with the charring and the calcined condition in the Janda burn barrel and behind Steven Avery's garage.
- That is correct, sir.
- Nowhere did you find evidence that you were looking at bone fragments from more than one body.
That is correct, sir.
So what you conclude is that by human agency, bone fragments here were moved.
Some bone fragments identified as human had been moved.
- That's correct.
- All right.
Um The vast majority of the human bone fragments was found behind Steven Avery's garage.
That's correct.
Why were they inconsistent with human bone fragments that could've been moved to that site after burning? I would expect to see some breakage to some fragments with that transport and I did not see anything like that.
Well, we do know that the very recovery of burnt bone fragments from behind Mr.
Avery's garage involved shoveling.
Correct? - That's correct.
- Transport to a sifting screen.
- Yes, sir.
- Sifting on the screen.
That's correct.
So you're not able to say that the bone fragments you found are inconsistent with having been transported to the burn area and poured out there.
Based on the volume of human bone fragments behind the garage, I find it highly unlikely that that was not the primary burn location.
All right.
But I guess that rests on an opinion that transport in a barrel or some other container and being poured out would've done more damage to those human bone fragments than shoveling, sifting, putting into a box and transporting to Madison would've done? - I really don't know.
I don't know.
- You don't know one way or the other? That's correct.
And you cannot reasonably rule out another possible burn site, can you? Based on the information I have at hand, I cannot.
That's all I have.
Mr.
Ertl, showing you exhibit number 160, can you identify that, please? It's an email to and from Tom Fassbender and myself.
All right.
And in this email, you state, "In regards to the burn pit, our involvement began with a request to use our sifting equipment.
The scene had obviously been altered at that point.
" - Is that right? - Correct.
And then would you go on and read the next sentence, please? "Had we been working any of these scenes from start to finish, there would likely have been more thorough photo record done by us.
However, under the circumstances, we were merely able to provide technical assistance rather than complete scene processing.
" OK.
More typically, if you're called to the scene to process potential evidence, you're able to do so from start to finish, right? I'd say in the majority of cases, when we arrive at the scene we are given over control and we take the lead.
To your knowledge, did Ms.
Fassbender call a forensic anthropologist out to the scene of the burn pit? - Not to my knowledge.
- OK.
And this area, the whole area that was excavated was about how big? Probably roughly the size of this table I'm sitting at.
And when you'd bring over a shovel here or there, nobody kept track of where exactly in that area any particular suspected bone may have been, right? No.
Everything that was collected in this area was placed together in a box.
- This area being that four by five feet - This four by five foot ash pile was placed together in a box.
There was no systematic approach to the collection of the evidence at first processing uh, from what I saw.
I know there was no grid imposed at that time during the initial excavation.
Um, I was informed that shovels were used in order to do that, and it wasn't, shall we say, a more forensic archaeological approach.
OK, so other than nitpicking, why does this matter? Why does it matter? Well, it matters as far as being able to tell things about the circumstances surrounding the burn of the body.
Where the body was burned.
Was it moved? Is this the actual location or not? And based on the recovery method that was used here, are you able to offer an opinion about where these human remains were burned? - No, I'm not.
- Can you agree with Dr.
Eisenberg's opinion that probably the area behind Mr.
Avery's garage was the original burn site? - No.
- Why not? I've been involved in cases where human cremains have been burned in one location and moved to another location.
And in those cases, in fact, the actual location where the bones have been moved to, tends to be the location where most of the remains are.
The dispute is not whether the bones were moved after they were burned.
They were.
I don't think any reasonable person would disagree with that.
But, you know, the key issue is the State says they were burned behind Steven's place and then a few of them were moved from there.
We say they most likely were burned somewhere else.
There were better burn sites to cremate a body to that condition.
And then somebody who knew the cops would be very interested in pinning this on Steven, dumped most of the bones, probably thought he was dumping all of the bones in a pile in Steven's burn area and then sort of sprink you know, sprinkled them around in the grass so there'd be no missing them.
Um And then put the burn barrel back in its place, not knowing that a few of the bones remained in the muck and ash in the Janda burn barrel.
I try to rack my brain and think and think, "Who's doing this to me?" I can't figure it out.
I still come up to a dead end.
Just like the last case, I couldn't figure it out.
I'm not in there.
- What time you got? - Five after.
Five after already? Good thing it ain't an emergency.
Hey, that's hard on your diabetes.
I don't care.
- You can go in now.
- OK.
Come on.
This is the rear cargo area of the Toyota RAV4.
In this area, there are numerous stains, and they all are, basically they're described as contact transfer stains.
Describe these stains that you observed in this portion of the vehicle.
This stain right here, this is a just a classic example of bloody hair transferring onto an unstained surface.
It is has enough blood there that it also shows a bit of a flow pattern off of the bottom of that.
But you can see that it is thicker here and as the length draws out, it comes to a point.
This is indicative of bloody hair, transferring the blood from those from that head hair onto this surface.
The blood in the RAV4, frankly, helps us.
Her blood.
Helps us a lot.
Because if he killed her in the garage or killed her in his own house somewhere or nearby, he doesn't need to use the RAV4 to carry her body over to the burn pit if that's where you're saying she was burned.
The only reason you would put her body in the car is if you're gonna take it somewhere farther than your own backyard burn pit.
And that's further evidence, we think that goes to show she was not burned where they found her.
That she was wherever she was killed, she was thrown in the back of the the RAV4 and taken someplace to be burned.
The State will call Scott Tadych to the stand.
It was the fire that I remembered most of that day.
All right, let's back up just a little bit.
Would you tell the jury what you did that afternoon, please? That morning I was up at my mother's, she had surgery.
And then I left her and I went to the woods hunting.
I went to my trailer, then I went to the woods hunting.
About what time was it you got out into the woods? About 3:00.
On your way to deer hunting, that would be just before 3:00 p.
m.
, - did you observe anybody on the roadway? - Yes, I did.
I saw Bobby Dassey on highway 147.
I was going west and he was going east.
Later that night, did you return to the Janda property? - Yes, I did.
- Could you tell the jury - what you saw at that time, please? - I saw a big fire.
And can you tell the jury where you saw the fire, please? - Right there.
- Are you able to estimate how high or how tall the flames were as you were watching there about 7:45? They were almost as tall as the garage.
- All right.
So - Eight, ten feet.
I don't know.
Ten feet, maybe.
Ten feet tall is what the flames were.
- Big fire.
- It's a big fire.
All right.
Did you see Steven Avery standing next to or near that fire? Yes, I did.
You remember October 31, 2005 because you skipped work entirely that day.
I didn't skip work.
I took vacation that day to go to be with my mother.
Other than your mother, who would've seen you on October 31st before you say Bobby Dassey saw you as the two of you drive past one another on highway 147? Nobody.
Just I went from the hospital to my trailer.
You get home, you very quickly get ready to go off deer hunting.
Yes.
On your way to hunting is when you see Bobby Dassey.
Correct.
And you got home from the hospital at about 3:15 that afternoon, - you say, to your home? - No.
I got home from the hospital between 2:30 and quarter to 3:00.
And that's your recollection today, oh, 15, 16 months after the events? - Yes.
- All right.
Do you remember talking to a couple of law enforcement officers about this back on, uh November 29, 2005? Yes.
And do you remember what you told them then about when you got home from the hospital? No, I don't recall.
I'll show you exhibit 356, which is a Division of Criminal Investigation report.
The second paragraph may be the most helpful, which you're welcome to read to yourself, any or all of that report.
- Did that help refresh your recollection? - Yeah, it did.
Did you tell the police on November 29 that you arrived home at 3:15? I may have.
Well, do you remember telling them that or not? No, I don't remember telling them that.
It's been such a long time.
Do you think maybe your recollection back on November 29, 2005, was maybe a little better than it is today? Yeah.
It was just one month after the events in question at that point.
Right.
Was November 29 also the day that you told the police that the flames were three feet high? Must have.
And sometime around the time you talked to Investigator Dedering on the occasion we just described, were you trying to sell one of the Dassey boys' .
22s to a man named Jay Mathis at work? - No.
- You weren't? You had, I think, said that on Halloween you see Ms.
Halbach walking towards your Uncle Steven's trailer? Yes.
Not too long after that, you leave the house with your bow to go hunting.
Yes.
As you drove off then to go deer hunting, it's what, 2:45 or 3:00, - somewhere in that range? - Yes.
- Anybody see you as you're going hunting? - Yes.
- Who? - Scott Tadych.
- Scott Tadych? - Yes.
OK.
What you told Investigator Dedering is that Mr.
Tadych would be able to verify precisely what time he had seen you? - Yes.
- Why did you think that? Maybe he looked at his clock in his truck.
Had you talked with Mr.
Tadych about whether he could - verify precisely when he saw you? - No.
You were just hoping or guessing that maybe he could? Yes.
We had two people who alibied only themselves.
They alibied each other.
Nobody else saw them during this critical time period.
They were on the property, they had access, they One of them was directly contradicted by an independent witness um as to the critical time of when she was supposedly last seen.
What time did you find that you got to the end of Avery Road where you would drop the Dassey boys off? Um, between 3:30 and 4:00 Or 3:40.
- Between 3:30 and 3:40? - Yes.
And how do you know that? 'Cause it was about the same time every day.
Same route.
OK.
During the week that began on Monday, October 31, 2005, do you remember seeing anything that, you know, you remembered later when you dropped the Dassey boys off Monday that week? I, um, remember seeing a woman taking photographs.
Could you tell what the woman was taking photographs of? A van.
OK, so and again, that would've been about when? What time of day? 3:30.
I'm sorry, 3:30 to 3:40.
That's all I have.
Thank you.
And I assume you're trying to sort of poke holes in the State's timeline, is that what that was all about? The implicit premise in your question is that the State has a timeline and we're sitting poking holes.
I think this is the most reliable person to offer a timeline.
She is not connected to any of the parties.
She, as a matter of employment, had a very good reason to know what the time was within about a ten minute window.
And I'm surprised that it's the Defense who had to call this witness to try to establish a reliable idea about time.
Except that the time doesn't fit with their theory.
- That's the problem.
- Well, that's kind of what I'm getting at.
The time doesn't fit with their Brendan Dassey theory.
I don't know that they've actually said when this all happened.
They did say during the whole Dassey, you know, scenario that he got off the bus, he got the mail, rode over and could hear the screams.
And this really is a problem for that.
Bobby Dassey testified here that at about 2:45 in the afternoon, he sees the female photographer out the window and she appears to be taking photographs.
And then sees her walking towards Mr.
Avery's trailer.
Takes a shower, doesn't see her afterward.
How does this help Steve Avery? I mean So if what this defense said I mean, what the prosecution says happened, happened an hour later? I mean, I That's kind of what I'm getting at.
Standing alone outside the Brendan Dassey house Listen to the argument that Mr.
Kratz made on why he thinks that charge of false imprisonment shouldn't be dismissed.
What was it based primarily on? One witness.
Bobby Dassey.
This witness today, with no interest whatsoever, has a completely different timeline that would not fit Mr.
Dassey.
The evidence don't make no sense.
The State ain't gotta prove nothin'.
A innocent person always gotta prove his self.
And how do you prove the Sheriff's Department's doing something? I got a hunch that's gonna be hard to do.
No sane lawyer looks forward to presenting an argument to a jury that the police framed his client.
No sane lawyer looks forward to doing that.
You know, the police many people, outside of large cities, at least, are raised to believe are the good guys.
And for many Americans, their experiences with the police essentially confirm the idea that the police are the good guys.
So when you When you confront the the need to present a defense that your client was framed and worse yet, framed by law enforcement officers, you're not happy.
The doorway where he comes out One of the things that the State argued was that it would've taken a wide ranging conspiracy of so many people to pull this off and that there's just no way this could be possible.
But in fact, that's not true.
Really, two people could've done this easily enough if they had the motive to do it.
Maybe one, even.
And the whole argument, "Well, why would they risk doing this and risk getting caught?" You have to understand, they probably would have no fear of ever being caught doing this.
You know? Who better than a police officer would know how to frame somebody? Please raise your right hand.
Do you solemnly swear that the testimony you shall give in the matter now before the court be the truth, the whole truth and nothing but the truth, so help you God? - I do.
- Please be seated.
Please state your name and spell your last name for the record.
James M.
Lenk.
L-E-N-K.