Making a Murderer (2015–…): Season 1, Episode 6 - Testing the Evidence - full transcript
Steven's attorneys cross-examine forensic experts about contaminated evidence and the absence of proof linking Steven to the crime.
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.
[male reporter] 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.
- [theme music plays]
- [geese honking]
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.
[man] I got 18:26.
[man 2] 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.
[Kratz] 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.
[Kratz] Are you telling this jury
that every one of those items
was handled by law enforcement
and examined?
[Heimerl] Virtually every item, yes.
[Kratz] 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.
[Kratz] I've actually zoomed in
to that area.
Tell the jury what
we're looking at here, please.
[Heimerl] 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.
[Heimerl] This is a medium view photograph
of what was ultimately identified
with marker number 23: the bullet
that was found under the compressor.
[Kratz] Can you identify the individual
in this photograph, please?
[Heimerl] Detective Dave Remiker from
Manitowoc County Sheriff's Department.
[Strang] 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.
[Remiker] Correct.
[Strang] It was March 2, 2006...
and you were present when one bullet
fragment was found in that garage.
[Remiker] Correct.
[Strang] 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.
[Strang] 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.
[Buting] "Lieutenant Lenk."
Is that his name logged in
on the second to the last line?
[Fassbender] Correct.
[Buting] 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?
[Fassbender] 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.
[Kratz] That's evidence
that Bobby provided, isn't that right?
- That's correct.
- That's all I've got. Thank you, Judge.
[scoffs]
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.
[indistinct chatter]
- 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.
- [laughs] Wrong door.
Court is already in session
so you need to be real quiet.
Thank you.
[woman] 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.
[Fallon] 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.
[Fallon] 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.
[Gahn] 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. [clears throat]
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.
[Gahn] 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.
[female reporter] 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.
[Buting] 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.
[Steven on phone] 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.
- [woman] Where's the Morgan?
- [laughter]
[Allan] I say, where is the blood?
Now you cut a deer, uh...
Say you're butchering a deer
- and here's the table.
- [Strang] Yeah.
You're gonna have...
on the floor and all...
- I cut a lot of 'em up.
- Yeah.
[Strang] 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.
- [Strang] Maybe yes, maybe no.
- [laughter]
Maybe a little bullshit.
[Strang] That's a lot
of bullshit coming out.
- [woman] More ways than one.
- [laughter]
I won't shoot you. Don't worry.
- Thank you.
- Thank you.
High velocity spatter,
you standing over somebody...
[imitates gunshot] 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.
[Buting] The more cluttered it is,
the harder it is going to be
to clean up high velocity spatter.
[Strang] Yeah. I mean,
it's real small droplets.
You will not be able
to find every bit of it.
[Buting] 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.
[Buting] 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?
[Culhane] No, I wouldn't.
[Buting] But in this case, you did
find DNA. You found Mr. Avery's own DNA.
That's correct.
[Baetz] 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.
[Buting] You checked
item DD, .22 caliber gun.
- That's a rifle, right?
- [Culhane] 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.
[male reporter] 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.
[Kratz] 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.
[Buting] Let's see,
we've had 18 days of testimony.
- [Strang] 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.
- [Strang laughs]
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.
- [laughs] 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.
[Fallon] 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?
[Eisenberg] 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.
[Strang] 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.
[Eisenberg] 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.
- [Eisenberg] 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.
[Eisenberg] 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.
[indistinct chatter]
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.
[Buting] 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.
[Strang] 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.
[Steven on phone] 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.
- [Allan] What time you got?
- [Dolores] Five after.
[Allan] Five after already?
Good thing it ain't an emergency.
[laughs]
[Allan] Hey, that's hard on your diabetes.
I don't care.
[door opens]
- [woman] You can go in now.
- OK. Come on.
[man] 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.
[Gahn] Describe these stains that you
observed in this portion of the vehicle.
[Stahlke] 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.
[clears throat] 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.
[Kratz] The State will call Scott Tadych
to the stand.
It was the fire that I remembered
most of that day.
[Kratz] 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.
[Kratz] About what time was it
you got out into the woods?
[Tadych] 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?
[Strang] 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?
[Strang] 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.
[Buting] 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.
[Strang] 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...
[Buting] 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.
[Steven on phone]
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.
[Strang] 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...
[Buting] 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?
[bailiff] 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.
[theme music plays]
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.
[male reporter] 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.
- [theme music plays]
- [geese honking]
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.
[man] I got 18:26.
[man 2] 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.
[Kratz] 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.
[Kratz] Are you telling this jury
that every one of those items
was handled by law enforcement
and examined?
[Heimerl] Virtually every item, yes.
[Kratz] 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.
[Kratz] I've actually zoomed in
to that area.
Tell the jury what
we're looking at here, please.
[Heimerl] 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.
[Heimerl] This is a medium view photograph
of what was ultimately identified
with marker number 23: the bullet
that was found under the compressor.
[Kratz] Can you identify the individual
in this photograph, please?
[Heimerl] Detective Dave Remiker from
Manitowoc County Sheriff's Department.
[Strang] 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.
[Remiker] Correct.
[Strang] It was March 2, 2006...
and you were present when one bullet
fragment was found in that garage.
[Remiker] Correct.
[Strang] 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.
[Strang] 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.
[Buting] "Lieutenant Lenk."
Is that his name logged in
on the second to the last line?
[Fassbender] Correct.
[Buting] 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?
[Fassbender] 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.
[Kratz] That's evidence
that Bobby provided, isn't that right?
- That's correct.
- That's all I've got. Thank you, Judge.
[scoffs]
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.
[indistinct chatter]
- 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.
- [laughs] Wrong door.
Court is already in session
so you need to be real quiet.
Thank you.
[woman] 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.
[Fallon] 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.
[Fallon] 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.
[Gahn] 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. [clears throat]
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.
[Gahn] 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.
[female reporter] 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.
[Buting] 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.
[Steven on phone] 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.
- [woman] Where's the Morgan?
- [laughter]
[Allan] I say, where is the blood?
Now you cut a deer, uh...
Say you're butchering a deer
- and here's the table.
- [Strang] Yeah.
You're gonna have...
on the floor and all...
- I cut a lot of 'em up.
- Yeah.
[Strang] 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.
- [Strang] Maybe yes, maybe no.
- [laughter]
Maybe a little bullshit.
[Strang] That's a lot
of bullshit coming out.
- [woman] More ways than one.
- [laughter]
I won't shoot you. Don't worry.
- Thank you.
- Thank you.
High velocity spatter,
you standing over somebody...
[imitates gunshot] 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.
[Buting] The more cluttered it is,
the harder it is going to be
to clean up high velocity spatter.
[Strang] Yeah. I mean,
it's real small droplets.
You will not be able
to find every bit of it.
[Buting] 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.
[Buting] 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?
[Culhane] No, I wouldn't.
[Buting] But in this case, you did
find DNA. You found Mr. Avery's own DNA.
That's correct.
[Baetz] 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.
[Buting] You checked
item DD, .22 caliber gun.
- That's a rifle, right?
- [Culhane] 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.
[male reporter] 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.
[Kratz] 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.
[Buting] Let's see,
we've had 18 days of testimony.
- [Strang] 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.
- [Strang laughs]
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.
- [laughs] 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.
[Fallon] 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?
[Eisenberg] 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.
[Strang] 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.
[Eisenberg] 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.
- [Eisenberg] 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.
[Eisenberg] 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.
[indistinct chatter]
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.
[Buting] 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.
[Strang] 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.
[Steven on phone] 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.
- [Allan] What time you got?
- [Dolores] Five after.
[Allan] Five after already?
Good thing it ain't an emergency.
[laughs]
[Allan] Hey, that's hard on your diabetes.
I don't care.
[door opens]
- [woman] You can go in now.
- OK. Come on.
[man] 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.
[Gahn] Describe these stains that you
observed in this portion of the vehicle.
[Stahlke] 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.
[clears throat] 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.
[Kratz] The State will call Scott Tadych
to the stand.
It was the fire that I remembered
most of that day.
[Kratz] 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.
[Kratz] About what time was it
you got out into the woods?
[Tadych] 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?
[Strang] 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?
[Strang] 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.
[Buting] 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.
[Strang] 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...
[Buting] 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.
[Steven on phone]
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.
[Strang] 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...
[Buting] 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?
[bailiff] 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.
[theme music plays]