Making a Murderer (2015–…): Season 1, Episode 7 - Framing Defense - full transcript
As the murder trial continues, Steven's attorneys present their case that law enforcement officials planted evidence to frame him.
[Pagel] I want to emphasize
that the investigation
is being conducted by the Calumet County
Sheriff's Department,
the State of Wisconsin,
Division of Criminal Investigation,
and the FBI is also
going to be assisting us.
The Manitowoc County Sheriff's
Department's role in this investigation
was to provide resources for us
when they were needed.
As we needed items on the property
to conduct searches,
they provided that piece of equipment
and that's their role
and their only role in this investigation.
They had Stevie picked,
as far as I'm concerned, right away.
They set him up.
Right from the beginning.
But they said, "Oh, he's not no suspect."
What was he?
They didn't find nothing down that...
by his trailer for three or four days.
Then all of a sudden stuff starts...
"Oh, we found this" and "We found that."
And then the Manitowoc cops found the key.
But they weren't supposed to be
investigating this at all. Right?
- [theme music plays]
- [geese honking]
[man] Rolling up
to Steve Avery's residence.
This is the bedroom. Steve Avery's.
It was told to me that
no Manitowoc County deputy
should be alone on the property.
Investigator Wiegert told me
my responsibility
would be to go with them
into the Steve Avery trailer
and to document what they were doing
and if evidence was seized by them,
to take custody of all the evidence.
Now you said that you were teamed up
with other officers.
Do you remember who was in your team?
Yes, it was Lieutenant Jim Lenk from
the Manitowoc County Sheriff's Department,
Sergeant Andy Colborn from
the Manitowoc County Sheriff's Department
and Detective Dave Remiker from
the Manitowoc County Sheriff's Department.
[Buting] You knew that
the district attorneys told those officers
not to be alone on any property, right?
- Yes.
- [Kratz] Mischaracterization, Judge.
He said the Manitowoc County
District Attorney.
I don't particularly care
which district attorney.
It's a district attorney, all right?
- You knew that.
- Yes.
And you knew that if anything, of all
the places that they should not be alone,
it would be in Mr. Avery's trailer, right?
We did not know that on that day.
Mr. Avery was the one
who was suing them, right?
You knew that?
- I was aware of that fact, yes.
- You knew that. That's right.
And you knew that's why Manitowoc
transferred authority
- over to Calumet, right?
- Yes.
It was because of
this man right here, right?
I believe that's correct.
And it was this man right here's trailer
that you were in.
- Yes.
- And so that, of all places,
you knew was important
that you make sure
that these Manitowoc officers
not be alone.
Correct.
And so you kept an eye on them,
didn't you?
I was watching
what they were doing, yes.
Had you ever, in any other search
in your entire career...
had to act like a babysitter
or a watch dog
for the officers
who were conducting a search?
- No.
- This was a first for you, wasn't it?
- Yes.
- And would you agree with me
that it would've been very difficult...
for Lieutenant Lenk or Sergeant Colborn
to have planted a Toyota key
in that residence under your watch?
I believe it would've been difficult.
- 'Cause you were watching them.
- To the best of my ability, yes.
You were not with Mr. Lenk and Mr. Colborn
when they reentered
Steven Avery's residence...
on November 8th, were you?
That's correct.
And that is the occasion
when a key was found, right?
That is my understanding.
[Kratz] Did you believe that either
Lieutenant Lenk or Sergeant Colborn
had an opportunity out of your eyesight
to plant that key there?
- No, they did not.
- How can you be so sure?
Well, first of all,
they would've had to have the key.
Um, I think the only person
that would've had the key
- was the person that killed Teresa.
- [Buting] Objection. Speculation.
- [Judge Willis] Sustained.
- [Buting] Move to strike.
[Judge Willis] The court
will order the answer stricken.
[Kratz] I want you to limit your comments
to your observations.
What about your observations
do you believe
it was impossible or improbable for them
to plant that key?
My actual observations,
um, I would have to say that...
that it could be possible.
As in, I was doing other things,
I was taking photographs, I was, um...
searching the night stand.
So if we're just limiting it to
if it was possible
that they could do it
without me seeing it,
- I would say, yes, I guess it is possible.
- All right.
And is that in the sense
of anything's possible?
That's in the sense of it's possible
aliens put it there, I guess.
All right.
There weren't any aliens
in the room, right?
- Not that I know of.
- So it being possible
in the same way that aliens are possible
really isn't a fair characterization
of what you meant, is it?
- I don't understand.
- All right. Let me try it this way.
You were not told
at the beginning of that shift
that your function was to be a watch dog
for Mr. Lenk and Mr. Colborn, were you?
- That's correct.
- I take it it never occurred to you
that a law enforcement officer
would plant evidence, did it?
No.
That was not on your radar, was it?
No.
Now what we do know is that when
you came into that bedroom the first time,
there was no key on the floor,
was there?
That's correct.
The theory was then,
that this key and the cloth fob
and the plastic buckle...
somehow...
managed to come out that back corner,
walk around the side
and lay like that. Right?
[Fallon] Object, Judge.
That's a mischaracterization of evidence.
Uh, well, that's up to the witness
to answer. I'll allow the question.
The bookshelf was pulled away,
turned, searched.
And it was reasonable that while it was
turned away, it fell into that area.
[Buting] OK. But you didn't hear it
hit the floor when it...
whenever it got there, right?
Correct. The floor's carpeted.
Well, can I drop it on the floor here?
[Kratz] What are we doing, Judge?
Is this an experiment
in front of the jury?
If it is, then we need
to replicate the conditions.
[Buting] That's fine.
We'll hold off on that.
The bookcase hasn't come in
so I don't know if they intend to
introduce it or not, but it's not here.
[Strang] Lieutenant Lenk, November 8
was at least your third time
into Mr. Avery's bedroom.
Searching it. Right?
That's correct.
Now, you had been the first one
to empty out that bookcase?
- No, sir.
- OK.
But you know that somebody searched it
on November 5.
- Yes, sir.
- How about on November 8?
Do you know whether Mr. Colborn
took all of the stuff out of the bookcase?
All the magazines and the photos
and that type of thing
were taken out of the bookcase.
So that he could look in the bookcase.
I suppose.
And did you get a chance
to look into the bookcase
- when it was empty of its contents?
- I may... I've glanced in there.
I didn't really take
a hard look in there, no, sir.
You didn't see a blue lanyard
and a black clasp and the Toyota key
in that back of that bookcase, did you?
No, sir, I did not.
[Buting] It's not enough to just get
the key. He wants Avery's DNA on that.
And so he is gonna wait
until it is the right time.
And there is a Calumet deputy with him
on all of these searches.
Yep, there is, somewhere near.
Somewhere nearby, and he was
just waiting for the right time...
when he could do it.
That key does not fall from...
you know, in between the backboard
and the frame of that little bookcase.
And find its way underneath
a pair of slippers.
Yeah, it just does... You know, things fall
straight down, thanks to gravity.
- Right.
- It's, you know.
Um... and if we get them thinking,
"Look...
if the guy's capable of planting a key...
who's to say he's not capable
of planting blood?"
- Blood's easy.
- Yeah.
- Blood's easy if you...
- Blood's easy.
[Buting] The bottom line is,
they knew their boss
had just recused the department
and turned over lead authority
in this investigation
to the neighboring department
because of that lawsuit.
They were deposed in the lawsuit,
and they didn't tell... you know.
I'll connect that.
You volunteered to be
one of the officers...
who searched Steven Avery's residence.
We were asked to assist
in searching Av... residences, yes.
Well, all right.
You've given testimony
about that very topic before.
Yes, sir.
Do you recall being asked this question
and did you give this answer?
"So you volunteered
to be one of the officers
who searched Steven Avery's residence."
Your answer: "Yes, sir."
- Was that your testimony?
- Yes, sir.
Sergeant Colborn also volunteered
to be one of the searchers
of Steven Avery's residence.
Yes, sir, I believe so.
And you didn't mention
that you'd been deposed,
three, four weeks earlier,
to Special Agent Fassbender.
- That's correct, sir.
- You didn't mention it
- to Investigator Mark Wiegert.
- That's correct.
Didn't tell Sheriff Pagel
that you'd been deposed.
No, sir.
Without you telling them,
there's really no way they would have
known about it, would they have?
No, sir.
Would it have been a little bit fairer
to Mr. Fassbender
if you had given him this information
so that he as one of the two lead
investigators could've considered it?
Had I thought of it, yes, sir.
Would it have been fairer to give that
to Mr. Wiegert or Sheriff Pagel?
Same answer. Yes, sir.
And before you went rummaging
through Steven Avery's bedroom,
once, twice, three times,
whatever it was, for hours,
would it have been fairer to Steven Avery
if someone other than a person
who had been deposed in his lawsuit
had done that search?
No, sir,
I don't think it would've been.
[Kratz] At least around here,
maybe not in Milwaukee,
maybe not in Brookfield,
maybe not in Madison,
but around these parts, if you're
gonna suggest that a cop is crooked,
you're gonna suggest
that a cop committed crimes,
then you better have something other
than "Your elbow was on the table."
And in this case,
to suggest that these police officers
planted evidence with nothing, that is,
with not one shred, at least anything
that I've seen, that approaches evidence,
I think is absolutely deplorable.
[food sizzling]
[Steven on phone] I'm in
the same situation that I was before.
There's a couple of 'em
wanting to nail me.
And the other ones didn't.
But nobody speaks up.
I gotta go through this over and over.
Sometimes I just wonder, I don't know.
It's just hard to take all in, you know?
[Judge Willis] You may be seated.
Mr. Kratz, at this time,
you may resume your questioning.
Sergeant Colborn, that first day, that is,
the first day of the missing persons
investigation, the 3rd of November,
after Mr. Wiegert asked for your help,
did you have any conversation
with Steven Avery at that time?
[Colborn] Yes, I did.
I asked him if Teresa Halbach
had come out to their property
to photograph a vehicle
that they were selling.
[Kratz] Mr. Avery have a response for you?
[Colborn] He said that she
was taking some pictures of a van
that his sister was selling.
And I asked Mr. Avery if she had said
where she was going and he said,
"I never talked to her. She was only here
five or ten minutes, then she left."
That he never talked to her?
[Colborn] That's what he told me.
He never talked to her.
Let's move on then to the 8th of November.
Did you have occasion
to search Steven Avery's bedroom?
- Yes, sir.
- Who did you enter that bedroom with?
Deputy Kucharski and Lieutenant Lenk.
In performing that search,
did you move or manipulate
this piece of furniture?
Well, I'll be the first to admit
I handled it rather roughly,
twisting it, shaking it, pulling it.
Sergeant, did you see this image
on the 8th of November?
Yes. I was searching the desk here.
Deputy Kucharski was sitting
on the bed filling out paperwork.
Lieutenant Lenk said
something to the effect of,
"There's a key on the floor here."
Let me ask you, Sergeant Colborn,
did either yourself, Lieutenant Lenk
or Deputy Kucharski touch that key?
- No, sir.
- Why not?
I think all three of us knew
at the same time
that this was a very important
piece of evidence and...
you know, none of us
were gonna taint that.
Sergeant Colborn, you were asked,
as I understand,
as part of a civil lawsuit,
to provide what's called a deposition.
Can you tell the jury
what you were asked about?
In 1994 or '95,
I had received a telephone call
when I was working in my capacity
as a corrections officer
in the Manitowoc County jail.
The telephone call was from somebody
who identified himself as a detective
and began telling me that
somebody who had committed an assault
in Manitowoc County
was in their custody
and we may have somebody in our jail
on that assault charge that...
may not have done it.
Uh, I told this individual you're probably
gonna want to speak to a detective
and I transferred the call to a detective.
That's it?
That's your connection to Mr. Avery?
Yes, sir.
Well, let me ask you this,
Sergeant Colborn,
do you even know whether that call
was about Mr. Steven Avery?
No, sir.
Well, did that cause you enough
embarrassment and enough angst
that you obtained and planted blood
so that it would be found
and Mr. Avery would be wrongfully
accused of a homicide case?
No, sir.
Have you ever planted any evidence
against Mr. Avery?
I have to say that this is
the first time my integrity
has ever been questioned and,
no, I have not.
That's all I have for Sergeant Colborn,
Judge. Thank you.
This is the first time
your integrity's been questioned.
[Colborn] As it applies to being
a police officer, yes.
OK. And it's not the first time
Mr. Avery's has been,
so I have some questions for you.
November 3, 2005, when you learned
Teresa Halbach was missing,
was just three weeks after your deposition
in Steven Avery's lawsuit.
Yes, sir.
As shift commander, you could've assigned
anyone in the road patrol
to go out to the address on Avery Road.
Yes.
- You chose to do it yourself.
- Yes.
- Did you go alone?
- Yes, I did.
When, sir, did you first
make a written report
of anything having to do with the
November 3, 2005 meeting with Mr. Avery?
June of '06, I believe.
That is, it was almost eight months
after that conversation with Steven Avery,
the first conversation with him
in this investigation,
that you wrote down what you say
he said to you back on November 3.
Yes, sir.
[Baetz] The Manitowoc County
Sheriff's Department
had, by their own admission, in fact,
they're the first one that brought it up,
that there was a conflict
of interest there.
And a conflict of interest
in the investigation of a crime...
is probably the most serious violation
any investigating agency can make,
because it brings into question
their credibility
in actions throughout the case.
If I had to guess, I would say that
they declared it a conflict of interest
to dot the "i"s and cross the "t"s.
They didn't implement the procedure
that would follow a conflict of interest.
And that is quite simply
to totally back off.
They continued their active role
in the investigation,
they developed most of the evidence,
and when they took on that role
that they shouldn't have,
they also committed themselves...
to proving Steven Avery
had committed the crime.
[Strang] So you're in the house
on November 5, November 6,
November 7, November 8. True?
[Colborn] Yes, sir.
There was no time that
you went into Mr. Avery's home
when you were not also
with Lieutenant Lenk.
No, sir.
[Strang] No time you went
in Mr. Avery's garage
when Lieutenant Lenk
was not also with you?
Not that I recall.
This case you would describe
as the largest investigation
in which you personally
have participated
- as a law enforcement officer?
- Yes, sir.
Law enforcement agencies involved
have generated thousands of pages
of police reports.
Yes, sir.
Your total contribution is what,
a little bit under half a page?
Correct.
The report that you filed
makes no mention of the Toyota key?
That's correct, sir.
Were there things that you did not
want to commit to paper in a report?
No, sir.
While we're on Steven Avery
and your reports about him...
that phone call, the phone call where
a detective from another
law enforcement agency
told you you may have
the wrong guy in jail? That one?
Yes, sir?
Did you ever write a report about that?
No, I did not, sir.
Well, actually you did, didn't you?
It was about eight years later,
wasn't it?
I wrote a statement on it. Yes, sir.
You wrote that statement in 2003,
the day after Steven Avery
finally walked out of prison, didn't you?
I don't know what day
Steve was released from prison,
but I wrote the statement in 2003.
That's all I have.
Sergeant Colborn, back in 1994 or '95,
if you would've written a report...
what would it have been about?
[Colborn] I don't know what
it would've been about.
If I wrote a report
about every call that came in,
I would spend my whole day
writing reports.
That's all the redirect I have of this
witness. Thank you very much, Sergeant.
[Judge Willis] Mr. Strang?
How many calls have you ever gotten
from another police officer
suggesting you had the wrong guy in jail?
I don't know.
I can't recall any others.
That's all I have.
[female reporter] Sergeant Colborn
was up there for quite some time today.
This is a gentlemen who I think's been
a law enforcement officer for 13 years.
He puts on a uniform,
a badge and a gun every day
and goes to work and tries to do his best.
We're all here.
We're putting this on TV.
This guy's gonna go home tonight
and listen to his son maybe cry about
how everybody at school made fun of him
'cause his dad's a bad cop.
This was a hard day and there have been
some hard days for Sergeant Colborn.
But... any pain...
any burden that he's bearing...
pales in comparison
to what the State of Wisconsin
and the people working for it have
inflicted on Steven Avery and his family.
And right now Steven Avery
needs Jerry Buting and Dean Strang
and anybody out there
who believes in him, badly.
We do believe in him.
We are willing to do hard things
to advance his cause,
and he's been saying since November, 2005,
that someone must have
planted his blood if it's in that car.
[female reporter]
But my question is, though,
is that if you were gonna
put somebody on the stand
and accuse that person of a conspiracy,
Mr. Kratz kind of made it sound like
you should be able to offer some proof
that this planting actually took place.
You're hearing the evidence
of the conspiracy.
And I have sat in many a federal court
room and heard federal prosecutors
prove a conspiracy on less
than we've heard already here
and then you will hear
by the end of this trial, I think.
[Buting sighs]
[Buting] The way this case
is coming in at this point
is much better for the Defense
than I would've thought. Much better.
[car starts]
Every single day, we're reminding them
about Manitowoc's continued involvement,
about bias in the investigation.
[Kratz] Sergeant Orth, were you
the first law enforcement officer
- that was on the Avery property itself?
- Correct.
Where was it that you
stopped your vehicle?
I stopped the vehicle right where
Pamela and Nikole Sturm were standing.
They were positioned
right around this area
and they were directing my attention
to this row of vehicles.
All right. Do you recall about what time
you arrived at that scene?
Approximately 10:59 hours.
10:59 a.m.
Now Sergeant Orth, from your arrival,
would you have been in a constant position
to determine whether any
law enforcement officer or citizen
entered or disturbed that vehicle?
No police officer or citizen
approached or touched that RAV4.
I'm gonna come right out and ask you,
did you see a gentleman who works for
your department named Lieutenant Jim Lenk?
- I did not see him.
- Did you see a gentleman
who works for your department
named Andrew Colborn?
No, I did not see him.
That's all I've got
of this witness, Judge. Thank you.
[Buting] You didn't
actually start preparing a log
of anybody coming to and from that scene
of the RAV4 until... 2:45,
isn't that right?
As soon as I stood behind the vehicle
approximately 30 feet,
I used the small notepad
out of my shirt pocket.
That was a rough log that I started.
When I proceeded back to the staging area
is where I prepared a final log,
which is probably
what you're referring to.
All right, if you would just read
what you say
for the entry that says 14:45 hours,
that is 2:45, is it not?
- Correct.
- Read the last sentence.
"I started a log to document
the names of individuals
approaching the immediate area
around the vehicle."
- OK. "I started a log." Right?
- Correct.
Is there anyplace earlier in your report
where you mention
that you ever took any notes anywhere else
about who was coming and going,
other than this entry right here
that it says it's 2:45 p.m.?
No. My rough field notes,
that's when I started previously.
- Do you still have those?
- No, I do not.
So we just have to rely on your memory,
is that right?
As far as the time of breaks
and the time I approached.
- And who came and went, right?
- Correct.
[Fassbender] When I got there on Saturday,
ultimately I got down by the car crusher
about 2:25 I think it was,
and the officers
that were staged there, I told them,
or I recommended that they start a log.
Agent Fassbender,
any time after 2:00 p.m.,
did you see any law enforcement officer
or citizen tamper with that RAV4 vehicle?
No.
- Is that important to you?
- Yes.
Why?
'Cause that's probably right now
our main piece of evidence in this case.
Did it cause you concern
that for four hours,
the major piece of evidence in this case
was under the control
of the very department
that had already been determined to have
a conflict of interest in this case?
No, it didn't. I knew that officers were
on that scene, protecting that scene.
Well, did you suggest
that Manitowoc back off
and that the Calumet deputy take over?
- Was that part of your decision?
- I don't believe so.
It happened, but I don't believe
that was specifically my decision.
So it was just coincidental that
it happened around the time you arrived?
- Oh, probably. Yes.
- All right.
And in fact, you were trying
to shape things up a bit,
make sure that logs were taken
and all of that when you arrived.
I suggested a log be kept.
And that's good police practice
to do that, right?
- Certainly.
- You then have a record
- of everybody who comes and goes, right?
- Correct.
Even the top dog sheriff
has to sign a log like this, right?
You should, yes, if you're going
by that checkpoint, yes.
Well, unless you were eluding
the checkpoint in some way,
you would really have to sign in,
wouldn't you?
Correct.
All right, so the log shows that
Lieutenant Lenk signed out at 10:41 p.m.
- on Saturday, November 5th. Correct?
- Yes, if this is all November 5th. Yes.
OK. Well, if you take a minute
and look through there
and show me where
Lieutenant Lenk signed in.
Do you see an entry
that Lieutenant Lenk signed in
anywhere on that log on November 5th?
No, sir, I did not.
Theoretically, a trial is supposed
to be about the day your sister died
and how she died and who did it,
yet it seems as though the State
is spending an inordinate amount of time,
especially with law enforcement officers,
not talking about that,
but who had access to what,
to what scene, to what vehicle...
Are you concerned that, with each witness,
this window of reasonable doubt
keeps getting wider and wider?
No, I'm not concerned at all.
Um, I think it's a hand that's kind of
forced upon the prosecution team.
That's, you know, kind of my belief,
so not concerned at all.
[indistinct chatter]
[Kratz] As you sit here today,
Lieutenant Lenk,
do you recall about what time
you arrived at that scene?
Uh, it was just shortly after 2:00...
2:05, somewhere in there.
Now when you got to the scene,
the Avery Salvage scene,
had there been any kind of log in
or check in procedure put in place yet?
- I don't recall a log in at that point.
- All right.
I just don't recall.
Lieutenant Lenk,
any time on the 5th of November
did you have any contact
with Teresa Halbach's SUV?
No, sir, I did not.
Did you have any contact with her SUV
on the 4th of November
or the 3rd of November
or in fact any time there before?
No, sir, I did not.
Lieutenant Lenk, did you ever obtain
any blood from the clerk's office
or did you obtain any blood
from any location
and plant it anywhere
in Teresa Halbach's vehicle
or anywhere where it could be found
as part of this investigation?
No, sir, definitely not.
[Strang] Now, what you testified
on direct examination
was that you arrived at the Avery salvage
property just shortly after 2:00,
- 2:05 or something like that?
- Yes, sir.
If you arrived at about 2:00 or 2:05,
then that may have been before
anyone started keeping a log.
- That's correct.
- Under those circumstances,
the fact that you didn't sign in
would not look strange or odd.
No, sir.
The, uh... subject of when you arrived
at the Avery property that day
has come up before in this case,
hasn't it?
Yes, sir.
You gave testimony under oath
back on August 9, 2006?
I believe that was the date, yes, sir.
Now, the oath, of course,
was the same you took today.
Correct.
And were you asked on that occasion,
"And did you in fact arrive
at the Avery property?"
Your answer: "Yes."
Question: "Do you know what time?"
Answer: "I'm not sure of the exact time.
Somewhere 6:30 or 7:00 that evening.
I'm not positive."
Were you asked those questions
and did you give those answers?
Yes, sir, I did.
Now if you had arrived at 6:30 or 7:00,
it would be a little hard to explain
why you're not on the log signing in,
wouldn't it?
Yes, it would.
My blood starts to boil
when the Defense...
When I hear that these police officers,
these good solid citizens,
good decent men,
are accused of planting this evidence,
it starts to get my blood boiling.
They can get up here and act as offended
as they want, as often as they want.
But they're presenting this case,
the way it was done, who it was done by,
who was not excluded from it.
When the public was told
that Manitowoc was not involved...
They sat up here at press conferences
and told you
Manitowoc was not involved
in this investigation,
when in fact, now we know they were,
and that they were
four months later, even.
You gotta wonder, what's going on here?
If Lenk was involved
with the transmittal of evidence in 2002,
then he probably would've known
that this box of Steven Avery's blood
was in that case file.
And he would therefore have known
in October and November of 2005,
when the Halbach vehicle is discovered
on November 5th,
he would've known that there was a source
of Steven Avery's blood available
in the clerk's office.
[Buting] This is a picture that shows
the file in the clerk's office?
Correct.
And the file actually
has the exhibits in it
- as well as the paper documents, right?
- Correct.
All the exhibits are underneath all the...
I think all the paper
was pretty much at the top.
I mean, and when people go through it,
it doesn't necessarily
end back in that same condition,
and I think when it was kept over
on the side filing cabinet,
I tried to level things out too
so the cover could...
the flaps could come over because
I didn't think that was a very secure...
Sure. But there is that...
See that foam board exhibit
in the background?
Right and that would probably
stick out no matter where
- 'cause it was too big for the box.
- Yeah. So the box wouldn't close.
- Right.
- OK. No matter what you did.
All right. Now would it be fair to say
that the presence of sheriff's deputies
inside the interior part
of that clerk's office
was not that unusual an event, right?
That's correct.
Now in addition,
the sheriff's department has access
to the clerk's office with master keys,
isn't that right?
- The security bailiffs would.
- OK.
A master key would allow entry to the
inner part of the clerk's office, right?
- I guess.
- OK.
And that would include after hours,
on weekends or in the evenings, right?
Correct.
- [Dolores on phone] It seems suspicious.
- [Steven on phone] Yeah.
[Dolores] Them people ain't gonna
get away with everything.
[Steven] No. No.
- That's why Kratz is worried about it.
- [Dolores] Yeah.
[Steven] Yeah, he's scared now.
- [Dolores] Oh, yeah?
- [Steven] Well, why wouldn't he be?
- Dolores, how's Steven doing?
- How is he doing?
Can you comment?
[indistinct chatter]
[female reporter] ...while you were there
that you'd like to share with us?
- Is there anything you can share with us?
- [Dolores] I don't want to share.
[female reporter]
Can you tell us how he's doing?
Can you please comment on something
so we know what everyone is thinking?
- Can you talk to us?
- Where am I gonna walk?
I can't even see.
How are his spirits?
What did you guys talk about in this
20 minute period you were there for?
- Anything you'd like to say?
- Did he say anything about Brendan?
Can you talk to us at all today?
[Buting] When blood is taken
for a blood sample or blood tests,
it's put in a purple top tube.
It has a preservative
to keep it from spoiling,
and that's a chemical called EDTA.
We do not have EDTA
in our own bloodstream.
If you find it in a stain,
the argument is it must be
because the blood was planted.
And so I looked into could we test
the stains in the RAV4
to try and make any kind of
scientifically valid conclusion
about whether or not the blood stain
could've come from a tube
of preserved blood
as opposed to an actively bleeding person.
And there was nobody
who did those tests anymore.
But then the State somehow managed
to get the FBI to create such a test...
and have it ready sometime
in the middle of the trial.
[male reporter] How are you going to deal
with the issue that
in December you were told
this was gonna take four to six months,
which would've been way too late
to present at this trial,
and then all of a sudden,
they got it done in a couple of days?
Well, it wasn't a couple of days.
I think, um...
I don't see it as a problem.
- OK?
- [female reporter] Thank you.
- Thank you very much.
- [female reporter] Oh, I have one.
- Yes, ma'am.
- [laughter]
[female reporter]
This is a bit speculative,
but had the FBI not been able
to expedite that testing so quick,
would the trial have just gone on
without these test results?
Yes.
That's a pretty big thing.
- [Gahn] Now can I go?
- [male reporter] Thanks, Norm.
- [female reporter] Thank you.
- [male reporter] Run, Norm, run.
- Thank you.
- [laughter]
- Good, 'cause I'm chompin' at the bit.
- [male reporter] All right.
- I don't know why.
- Yes.
Oh, I'm happy to be here.
You know, this case,
as unusual as it has been already,
has now become even more
unusual and unique
because it's the first and only time
anywhere in the country
where an expert is being allowed
to express an opinion
about EDTA being on a blood stain or not
when there's a challenge.
The only other time it's ever
come in at all was the O.J. case.
And both sides agreed to it.
Here, uh, this judge is the first judge
who's ever ruled...
this kind of test to be admissible.
[female reporter] But the jury is still
going to hear these results.
Yes, they are. And that's unfortunate.
You know, we'll do our best
to explain to the jury
why they shouldn't be relied upon.
You know, we'll see what happens on that.
[Steven on phone] You know,
I always get my chances where...
yeah, I'm gonna get out,
and then this stuff comes
and I can just see that they're trying
to do their damnedest to keep me in.
So you know, this... it's scary.
Come down to it.
- [man] Morning.
- [Buting] Morning.
[Gahn] Dr. LeBeau, did you know that this
was a case that involved an allegation
- of police planting evidence?
- Yes, I did.
Why would a case such as that,
an allegation of law enforcement officers
planting evidence,
be of a concern to the FBI?
Well, one of the areas that the FBI
is responsible for investigating in this
country is crimes of public corruption.
If an individual is truly
in that political position
or in a law enforcement position
and they are doing something illegal
that erodes the public's trust
in that agency or that individual,
and we would want that, certainly,
that individual out
of that office or off the street.
Now I'd like to ask you, Doctor,
what was your thought process
in approaching this case
that was sent to you?
There's going to be one of two scenarios
when you're dealing with the notion
that blood was planted from an EDTA tube.
The first scenario is that if you find
the presence of EDTA on that blood stain,
then that's an indication that
that blood came from a tube,
such as a purple top tube.
The other scenario
is that you do not find EDTA,
and that would then suggest
that the blood came from active bleeding
and not from an EDTA preserved tube.
Were you able to reach a conclusion
concerning the presence of EDTA
on the blood swabs that you tested
from Teresa Halbach's RAV4
that were sent to you in this case?
Yes, sir. And we were not able to identify
any indication of the presence of EDTA
in any of the swabs
that were submitted to our laboratory
and were reported to us
as being collected from the RAV4.
Do you have an opinion to a reasonable
degree of scientific certainty
whether the blood stains from
Teresa Halbach's RAV4 that you tested
came from the vial of blood
of Steven Avery
that was in the Manitowoc County
Clerk of Courts office?
It's my opinion that the blood stains
that were collected from the RAV4
could not have come from the EDTA tube
that was provided to us in this case.
You think this is vindication?
[Gahn] Yes,
I clearly believe it's vindication.
You know, here are two officers who were
accused of something just terrible.
That's terrible that they would
plant evidence and try and frame someone
and basically ignore
whoever it may have been
that, uh, murdered Teresa Halbach.
I mean, what an awful thing to do,
it would be, to the family
of Teresa Halbach, to Teresa Halbach.
It's just a dastardly thing
to think about or even conceive.
It's clear vindication.
And it's just something welcome
to all of the law enforcement community
because it's just...
it's such a despicable allegation.
That's all I can say.
And I think that this testing,
uh, cleared that issue up
and, um, cleared it up in a very,
very strong powerful way.
[Buting] Look how quickly they got the FBI
to retool their instruments,
recalibrate everything, do these internal
validation studies they're gonna claim,
um, and get results
within a matter of weeks.
A few weeks.
On a test that they
haven't done for ten years.
And yet, the crime lab has, in 2002,
evidence in its lab
that Steven Avery is innocent, and it sits
for a year before it gets tested.
It shows the imbalance
between the individual
and the power of the government.
The full force of which they're
trying to bring to bear on this man.
Why? And why in this case?
Because we have accused,
and the evidence suspiciously points to
framing by one of them.
And when you do that,
"you do so at your peril,"
as the State would say, you know?
Hopefully, though, the jury's gonna see
that there's this imbalance
in the way that they're prosecuting
this case and investigating this case.
And I think what's going on here,
it's not...
Again, it's not like they think
they are framing an innocent man.
But they are.
They think he's guilty.
And they're doing whatever they can,
you know, to twist the evidence
or create a case that supports that.
- ...one of the conference rooms here.
- Yeah.
- Mark.
- Hi, how are you?
[indistinct chatter]
You testified about why the FBI
would have any interest in this case
in the first place.
- You recall that?
- Yes, I do.
You testified that
one of the FBI's concerns
was that if there's a corrupt cop
on the street doing something illegal,
and certainly planting evidence
to frame somebody would be illegal, right?
- Would you agree with me? OK.
- Yes, I would.
And that one of the functions of the FBI
was to ferret out bad cops like that.
Right?
- Generally, that's what I... Yes.
- OK.
- Generally, that's what I said. Yes.
- OK. I'm gonna show you
what's been marked as exhibit 479.
Would you read the sentence
on the top of page two?
It discusses the purpose of this request
for your services.
"The purpose of this request
is to establish the presence of EDTA
in the vial of blood,
thereby eliminating the allegation
that this vial
was used to plant evidence."
OK. Can you show me anywhere in there
where that request says,
"Our purpose is also to find out
if there might be any evidence
that there's a corrupt cop
in Manitowoc County"?
I don't see anything of that nature.
Is homicide of a citizen in the State
of Wisconsin a federal crime?
- No, sir, it's not.
- OK.
Is mutilation of a corpse
in the State of Wisconsin a federal crime?
- No.
- OK.
So, the purpose of you
getting your federal agency
involved in this state crime
was to eliminate the allegation
that this vial was used to plant evidence.
Isn't that true?
No, sir.
If I can elaborate,
I'd be happy to explain.
You can elaborate later, sir.
You only tested three swabs
that were reported to have been found
in the Teresa Halbach vehicle, right?
That's correct.
Do you know how many other stains
were also found in that vehicle?
- No, I don't.
- Your opinion
that there's no EDTA in the swabs
from the Halbach vehicle then
is limited to the three swabs that
were presented to you, isn't that right?
Could you repeat that?
You expressed an opinion a little more
broadly than perhaps you intended to,
I believe, which was that the blood stains
in the Halbach vehicle
could not have come from the purple vial
that you tested. Right?
That's correct.
But you're actually referring only
to the three stain swabs that you tested.
Correct?
No, I believe my original testimony
is what I meant.
Are you telling me right now
that even though you never tested
three other swabs of separate blood stains
found elsewhere in the RAV4 vehicle,
that you're willing to express an opinion
that none of those three swabs
have EDTA either?
I believe that to be true
within a reasonable degree
of scientific certainty, yes.
OK. Just wanted to know how far
you were willing to go.
The issue with this procedure
is not whether or not
it's a valid result if you got...
if you were actually detecting EDTA.
This is a good method...
If the results end up that you
detect EDTA and you identify EDTA,
that's a good indication that EDTA
was present in that sample.
The problem really occurs when EDTA
is not detected in a blood stain.
And the problem in that regard is,
from this method,
I don't know whether that's simply
because they didn't detect it
or because it wasn't there.
I can't tell the difference
between those two for this method.
I don't know really
what their method detection limit is.
So I don't know whether
they didn't see it or it wasn't there.
And looking at the data
that is available in this stack,
the validation tests that were done
and those sorts of things,
is there any indication that the FBI
ever found out what
the actual detection limit
or method detection limit would be
for this kind of a test?
No, there's no such indication
in these data.
And so from this data,
can you express any opinion
about whether the three stains
examined by Mr. LeBeau
could have come from the blood sample,
the blood tube Q-49
that was also examined?
It's quite possible that those blood swabs
could've come from Mr. Avery's blood tube,
but simply not been detectable
by the laboratory.
So even having gone through this test,
is it possible that EDTA is or was
in those three RAV4 stains?
Yes.
What about the three swabs from the RAV
that were not tested by Mr. LeBeau?
Can any conclusion be drawn on that?
I'm an analytical chemist.
I'm not in the business
of just guessing what's in samples.
We have to test samples
to decide what's in them.
So, can you conclude then
that any of the RAV4 stains
that were examined by the FBI
could not have come from the blood tube
that contained Mr. Avery's blood?
I can't conclude that.
[Buting] If we can convince them
on the major points,
then as long as there is a "reasonable
hypothesis" as the jury instruction says,
then I think we've got a chance
to convince them.
All this, of course, assumes
that we end up with 12 people
who really are unbiased and impartial,
despite, you know,
- the months of publicity that they've had.
- Right.
And you know?
That's asking a lot of human beings.
This case, you know, could've been
a futile exercise for the last month
if we ended up with people
that can't do that.
And there's just no way of knowing.
The false imprisonment count here
is the last vestige
of the unsupported, inaccurate,
uncorroborated claims
of Brendan Dassey that were broadcast
by agents of the State
to everyone who had a TV turned on,
that threatened the right to a fair trial,
that threatened the right
to have a jury drawn
from the venue in which
this crime was charged,
and that curled the hair
of anyone who listened to the description
of a naked woman manacled to a bed,
sexually assaulted, stabbed,
throat cut, strangled,
when the slashing
of her throat didn't kill her,
and then only later,
a corpse shot 11 times.
That was the story. That was
the horror story that was presented.
And the false imprisonment charge,
as I say,
is the last vestige of that horror story.
It was a fable.
An ugly, horrific fable,
but a fable all the same,
belied by the physical evidence
and by the testimony
in the State's own case-in-chief.
So I'm asking the court to, in a sense,
ratify what the State has already done.
Which is the abandonment of this charge
and the abandonment
of the theory that Brendan Dassey
had anything to do with this...
or that the story that Brendan Dassey told
under police questioning...
has any veracity, corroboration,
or foothold in the evidence
presented at this trial.
[Judge Willis] During voir dire,
a number of jurors indicated
they were at least somewhat familiar
with the case against Brendan Dassey.
To submit this charge to the jury would,
the Court believes,
invite the jury to fill in the blanks,
if you will,
by what they might otherwise remember
about allegations
that have not been supported
by evidence in this case.
The Court concludes there is not
sufficient evidence in the record
to support a jury finding
of guilt beyond a reasonable doubt
on the false imprisonment charge,
and the Court therefore grants the
defendant's motion to dismiss that charge.
[male reporter] The motion hearings
this morning on a litany of issues
that have already gone before the jury.
How do you unring that bell with the jury?
[Strang] In one way,
we're back to February 28, 2006.
We're back to the three counts
Steve faced originally.
And in another way,
we can never be back to February 28, 2006,
because March 1 and March 2, 2006,
happened with the State's
press conferences
and all of the ugly,
and as it turns out, untrue things
that were said publicly
against our client since then.
So is it nice to see the last vestige
of those allegations fall away?
Sure. And am I gloating over it?
No, because they never should've
been there in the first place.
[Judge Willis] If you can move
the microphone over to Mr. Avery then.
Uh, Mr. Avery,
do you understand that the decision
whether to testify or not
is yours to make?
Yes.
That means you can listen to your
attorneys and listen to their advice,
but ultimately it's your call.
Do you understand that?
Yes, I do.
Has anyone made any threats
or promises to you
to influence your decision?
No, they didn't.
Have you thoroughly discussed
your decision with your attorneys?
Yes, I did.
And have you made a decision
as to whether or not
you wish to testify in this case?
- Yes.
- What is your decision?
The decision is...
I'm an innocent man and I...
There's no reason for me to testify.
Everybody knows I'm innocent.
OK. So you wish not to testify,
is that correct?
Yes.
- Thank you. You may be seated.
- Thank you.
[indistinct chatter]
[female reporter] So Steve Avery
talked today. What was that like?
From what I've seen of him before,
he likes to talk,
so I think he probably would've liked
to be up on the stand, but, um...
You know, it's kind of counterintuitive.
Uh...
If he's innocent, he should go up
on the stand and say, you know...
He has nothing to hide,
so why isn't he up there? But, um...
- Yeah.
- [male reporter] Mike, what was going
through your mind
when he said he was an innocent man?
Um, same thing that's been going
through my mind for 16 months.
Everything I've heard him say
hasn't been the truth.
No different today.
You know, I think that he thinks
he's been let out of prison once,
he thinks it's probably
gonna happen again. But, um...
I don't think, uh... I don't think so.
[laughs]
All right, so that's it.
That's the evidence.
[Dolores] Now what?
Well, now we argue it.
And, uh, you know, you guys
will have the day off tomorrow,
by and large, yeah.
Let's talk about a couple of things.
You guys started with six counts
against Steve.
We're down to three counts.
That's the good news.
The bad news is, if we lose count one,
nothing else matters.
- No.
- Nothing else matters.
If we lose count one, he's going to prison
for the rest of his life.
Barring winning on appeal or, you know,
testing of the EDTA later,
but the sentence will be life in prison
if we lose count one.
[theme music plays]
that the investigation
is being conducted by the Calumet County
Sheriff's Department,
the State of Wisconsin,
Division of Criminal Investigation,
and the FBI is also
going to be assisting us.
The Manitowoc County Sheriff's
Department's role in this investigation
was to provide resources for us
when they were needed.
As we needed items on the property
to conduct searches,
they provided that piece of equipment
and that's their role
and their only role in this investigation.
They had Stevie picked,
as far as I'm concerned, right away.
They set him up.
Right from the beginning.
But they said, "Oh, he's not no suspect."
What was he?
They didn't find nothing down that...
by his trailer for three or four days.
Then all of a sudden stuff starts...
"Oh, we found this" and "We found that."
And then the Manitowoc cops found the key.
But they weren't supposed to be
investigating this at all. Right?
- [theme music plays]
- [geese honking]
[man] Rolling up
to Steve Avery's residence.
This is the bedroom. Steve Avery's.
It was told to me that
no Manitowoc County deputy
should be alone on the property.
Investigator Wiegert told me
my responsibility
would be to go with them
into the Steve Avery trailer
and to document what they were doing
and if evidence was seized by them,
to take custody of all the evidence.
Now you said that you were teamed up
with other officers.
Do you remember who was in your team?
Yes, it was Lieutenant Jim Lenk from
the Manitowoc County Sheriff's Department,
Sergeant Andy Colborn from
the Manitowoc County Sheriff's Department
and Detective Dave Remiker from
the Manitowoc County Sheriff's Department.
[Buting] You knew that
the district attorneys told those officers
not to be alone on any property, right?
- Yes.
- [Kratz] Mischaracterization, Judge.
He said the Manitowoc County
District Attorney.
I don't particularly care
which district attorney.
It's a district attorney, all right?
- You knew that.
- Yes.
And you knew that if anything, of all
the places that they should not be alone,
it would be in Mr. Avery's trailer, right?
We did not know that on that day.
Mr. Avery was the one
who was suing them, right?
You knew that?
- I was aware of that fact, yes.
- You knew that. That's right.
And you knew that's why Manitowoc
transferred authority
- over to Calumet, right?
- Yes.
It was because of
this man right here, right?
I believe that's correct.
And it was this man right here's trailer
that you were in.
- Yes.
- And so that, of all places,
you knew was important
that you make sure
that these Manitowoc officers
not be alone.
Correct.
And so you kept an eye on them,
didn't you?
I was watching
what they were doing, yes.
Had you ever, in any other search
in your entire career...
had to act like a babysitter
or a watch dog
for the officers
who were conducting a search?
- No.
- This was a first for you, wasn't it?
- Yes.
- And would you agree with me
that it would've been very difficult...
for Lieutenant Lenk or Sergeant Colborn
to have planted a Toyota key
in that residence under your watch?
I believe it would've been difficult.
- 'Cause you were watching them.
- To the best of my ability, yes.
You were not with Mr. Lenk and Mr. Colborn
when they reentered
Steven Avery's residence...
on November 8th, were you?
That's correct.
And that is the occasion
when a key was found, right?
That is my understanding.
[Kratz] Did you believe that either
Lieutenant Lenk or Sergeant Colborn
had an opportunity out of your eyesight
to plant that key there?
- No, they did not.
- How can you be so sure?
Well, first of all,
they would've had to have the key.
Um, I think the only person
that would've had the key
- was the person that killed Teresa.
- [Buting] Objection. Speculation.
- [Judge Willis] Sustained.
- [Buting] Move to strike.
[Judge Willis] The court
will order the answer stricken.
[Kratz] I want you to limit your comments
to your observations.
What about your observations
do you believe
it was impossible or improbable for them
to plant that key?
My actual observations,
um, I would have to say that...
that it could be possible.
As in, I was doing other things,
I was taking photographs, I was, um...
searching the night stand.
So if we're just limiting it to
if it was possible
that they could do it
without me seeing it,
- I would say, yes, I guess it is possible.
- All right.
And is that in the sense
of anything's possible?
That's in the sense of it's possible
aliens put it there, I guess.
All right.
There weren't any aliens
in the room, right?
- Not that I know of.
- So it being possible
in the same way that aliens are possible
really isn't a fair characterization
of what you meant, is it?
- I don't understand.
- All right. Let me try it this way.
You were not told
at the beginning of that shift
that your function was to be a watch dog
for Mr. Lenk and Mr. Colborn, were you?
- That's correct.
- I take it it never occurred to you
that a law enforcement officer
would plant evidence, did it?
No.
That was not on your radar, was it?
No.
Now what we do know is that when
you came into that bedroom the first time,
there was no key on the floor,
was there?
That's correct.
The theory was then,
that this key and the cloth fob
and the plastic buckle...
somehow...
managed to come out that back corner,
walk around the side
and lay like that. Right?
[Fallon] Object, Judge.
That's a mischaracterization of evidence.
Uh, well, that's up to the witness
to answer. I'll allow the question.
The bookshelf was pulled away,
turned, searched.
And it was reasonable that while it was
turned away, it fell into that area.
[Buting] OK. But you didn't hear it
hit the floor when it...
whenever it got there, right?
Correct. The floor's carpeted.
Well, can I drop it on the floor here?
[Kratz] What are we doing, Judge?
Is this an experiment
in front of the jury?
If it is, then we need
to replicate the conditions.
[Buting] That's fine.
We'll hold off on that.
The bookcase hasn't come in
so I don't know if they intend to
introduce it or not, but it's not here.
[Strang] Lieutenant Lenk, November 8
was at least your third time
into Mr. Avery's bedroom.
Searching it. Right?
That's correct.
Now, you had been the first one
to empty out that bookcase?
- No, sir.
- OK.
But you know that somebody searched it
on November 5.
- Yes, sir.
- How about on November 8?
Do you know whether Mr. Colborn
took all of the stuff out of the bookcase?
All the magazines and the photos
and that type of thing
were taken out of the bookcase.
So that he could look in the bookcase.
I suppose.
And did you get a chance
to look into the bookcase
- when it was empty of its contents?
- I may... I've glanced in there.
I didn't really take
a hard look in there, no, sir.
You didn't see a blue lanyard
and a black clasp and the Toyota key
in that back of that bookcase, did you?
No, sir, I did not.
[Buting] It's not enough to just get
the key. He wants Avery's DNA on that.
And so he is gonna wait
until it is the right time.
And there is a Calumet deputy with him
on all of these searches.
Yep, there is, somewhere near.
Somewhere nearby, and he was
just waiting for the right time...
when he could do it.
That key does not fall from...
you know, in between the backboard
and the frame of that little bookcase.
And find its way underneath
a pair of slippers.
Yeah, it just does... You know, things fall
straight down, thanks to gravity.
- Right.
- It's, you know.
Um... and if we get them thinking,
"Look...
if the guy's capable of planting a key...
who's to say he's not capable
of planting blood?"
- Blood's easy.
- Yeah.
- Blood's easy if you...
- Blood's easy.
[Buting] The bottom line is,
they knew their boss
had just recused the department
and turned over lead authority
in this investigation
to the neighboring department
because of that lawsuit.
They were deposed in the lawsuit,
and they didn't tell... you know.
I'll connect that.
You volunteered to be
one of the officers...
who searched Steven Avery's residence.
We were asked to assist
in searching Av... residences, yes.
Well, all right.
You've given testimony
about that very topic before.
Yes, sir.
Do you recall being asked this question
and did you give this answer?
"So you volunteered
to be one of the officers
who searched Steven Avery's residence."
Your answer: "Yes, sir."
- Was that your testimony?
- Yes, sir.
Sergeant Colborn also volunteered
to be one of the searchers
of Steven Avery's residence.
Yes, sir, I believe so.
And you didn't mention
that you'd been deposed,
three, four weeks earlier,
to Special Agent Fassbender.
- That's correct, sir.
- You didn't mention it
- to Investigator Mark Wiegert.
- That's correct.
Didn't tell Sheriff Pagel
that you'd been deposed.
No, sir.
Without you telling them,
there's really no way they would have
known about it, would they have?
No, sir.
Would it have been a little bit fairer
to Mr. Fassbender
if you had given him this information
so that he as one of the two lead
investigators could've considered it?
Had I thought of it, yes, sir.
Would it have been fairer to give that
to Mr. Wiegert or Sheriff Pagel?
Same answer. Yes, sir.
And before you went rummaging
through Steven Avery's bedroom,
once, twice, three times,
whatever it was, for hours,
would it have been fairer to Steven Avery
if someone other than a person
who had been deposed in his lawsuit
had done that search?
No, sir,
I don't think it would've been.
[Kratz] At least around here,
maybe not in Milwaukee,
maybe not in Brookfield,
maybe not in Madison,
but around these parts, if you're
gonna suggest that a cop is crooked,
you're gonna suggest
that a cop committed crimes,
then you better have something other
than "Your elbow was on the table."
And in this case,
to suggest that these police officers
planted evidence with nothing, that is,
with not one shred, at least anything
that I've seen, that approaches evidence,
I think is absolutely deplorable.
[food sizzling]
[Steven on phone] I'm in
the same situation that I was before.
There's a couple of 'em
wanting to nail me.
And the other ones didn't.
But nobody speaks up.
I gotta go through this over and over.
Sometimes I just wonder, I don't know.
It's just hard to take all in, you know?
[Judge Willis] You may be seated.
Mr. Kratz, at this time,
you may resume your questioning.
Sergeant Colborn, that first day, that is,
the first day of the missing persons
investigation, the 3rd of November,
after Mr. Wiegert asked for your help,
did you have any conversation
with Steven Avery at that time?
[Colborn] Yes, I did.
I asked him if Teresa Halbach
had come out to their property
to photograph a vehicle
that they were selling.
[Kratz] Mr. Avery have a response for you?
[Colborn] He said that she
was taking some pictures of a van
that his sister was selling.
And I asked Mr. Avery if she had said
where she was going and he said,
"I never talked to her. She was only here
five or ten minutes, then she left."
That he never talked to her?
[Colborn] That's what he told me.
He never talked to her.
Let's move on then to the 8th of November.
Did you have occasion
to search Steven Avery's bedroom?
- Yes, sir.
- Who did you enter that bedroom with?
Deputy Kucharski and Lieutenant Lenk.
In performing that search,
did you move or manipulate
this piece of furniture?
Well, I'll be the first to admit
I handled it rather roughly,
twisting it, shaking it, pulling it.
Sergeant, did you see this image
on the 8th of November?
Yes. I was searching the desk here.
Deputy Kucharski was sitting
on the bed filling out paperwork.
Lieutenant Lenk said
something to the effect of,
"There's a key on the floor here."
Let me ask you, Sergeant Colborn,
did either yourself, Lieutenant Lenk
or Deputy Kucharski touch that key?
- No, sir.
- Why not?
I think all three of us knew
at the same time
that this was a very important
piece of evidence and...
you know, none of us
were gonna taint that.
Sergeant Colborn, you were asked,
as I understand,
as part of a civil lawsuit,
to provide what's called a deposition.
Can you tell the jury
what you were asked about?
In 1994 or '95,
I had received a telephone call
when I was working in my capacity
as a corrections officer
in the Manitowoc County jail.
The telephone call was from somebody
who identified himself as a detective
and began telling me that
somebody who had committed an assault
in Manitowoc County
was in their custody
and we may have somebody in our jail
on that assault charge that...
may not have done it.
Uh, I told this individual you're probably
gonna want to speak to a detective
and I transferred the call to a detective.
That's it?
That's your connection to Mr. Avery?
Yes, sir.
Well, let me ask you this,
Sergeant Colborn,
do you even know whether that call
was about Mr. Steven Avery?
No, sir.
Well, did that cause you enough
embarrassment and enough angst
that you obtained and planted blood
so that it would be found
and Mr. Avery would be wrongfully
accused of a homicide case?
No, sir.
Have you ever planted any evidence
against Mr. Avery?
I have to say that this is
the first time my integrity
has ever been questioned and,
no, I have not.
That's all I have for Sergeant Colborn,
Judge. Thank you.
This is the first time
your integrity's been questioned.
[Colborn] As it applies to being
a police officer, yes.
OK. And it's not the first time
Mr. Avery's has been,
so I have some questions for you.
November 3, 2005, when you learned
Teresa Halbach was missing,
was just three weeks after your deposition
in Steven Avery's lawsuit.
Yes, sir.
As shift commander, you could've assigned
anyone in the road patrol
to go out to the address on Avery Road.
Yes.
- You chose to do it yourself.
- Yes.
- Did you go alone?
- Yes, I did.
When, sir, did you first
make a written report
of anything having to do with the
November 3, 2005 meeting with Mr. Avery?
June of '06, I believe.
That is, it was almost eight months
after that conversation with Steven Avery,
the first conversation with him
in this investigation,
that you wrote down what you say
he said to you back on November 3.
Yes, sir.
[Baetz] The Manitowoc County
Sheriff's Department
had, by their own admission, in fact,
they're the first one that brought it up,
that there was a conflict
of interest there.
And a conflict of interest
in the investigation of a crime...
is probably the most serious violation
any investigating agency can make,
because it brings into question
their credibility
in actions throughout the case.
If I had to guess, I would say that
they declared it a conflict of interest
to dot the "i"s and cross the "t"s.
They didn't implement the procedure
that would follow a conflict of interest.
And that is quite simply
to totally back off.
They continued their active role
in the investigation,
they developed most of the evidence,
and when they took on that role
that they shouldn't have,
they also committed themselves...
to proving Steven Avery
had committed the crime.
[Strang] So you're in the house
on November 5, November 6,
November 7, November 8. True?
[Colborn] Yes, sir.
There was no time that
you went into Mr. Avery's home
when you were not also
with Lieutenant Lenk.
No, sir.
[Strang] No time you went
in Mr. Avery's garage
when Lieutenant Lenk
was not also with you?
Not that I recall.
This case you would describe
as the largest investigation
in which you personally
have participated
- as a law enforcement officer?
- Yes, sir.
Law enforcement agencies involved
have generated thousands of pages
of police reports.
Yes, sir.
Your total contribution is what,
a little bit under half a page?
Correct.
The report that you filed
makes no mention of the Toyota key?
That's correct, sir.
Were there things that you did not
want to commit to paper in a report?
No, sir.
While we're on Steven Avery
and your reports about him...
that phone call, the phone call where
a detective from another
law enforcement agency
told you you may have
the wrong guy in jail? That one?
Yes, sir?
Did you ever write a report about that?
No, I did not, sir.
Well, actually you did, didn't you?
It was about eight years later,
wasn't it?
I wrote a statement on it. Yes, sir.
You wrote that statement in 2003,
the day after Steven Avery
finally walked out of prison, didn't you?
I don't know what day
Steve was released from prison,
but I wrote the statement in 2003.
That's all I have.
Sergeant Colborn, back in 1994 or '95,
if you would've written a report...
what would it have been about?
[Colborn] I don't know what
it would've been about.
If I wrote a report
about every call that came in,
I would spend my whole day
writing reports.
That's all the redirect I have of this
witness. Thank you very much, Sergeant.
[Judge Willis] Mr. Strang?
How many calls have you ever gotten
from another police officer
suggesting you had the wrong guy in jail?
I don't know.
I can't recall any others.
That's all I have.
[female reporter] Sergeant Colborn
was up there for quite some time today.
This is a gentlemen who I think's been
a law enforcement officer for 13 years.
He puts on a uniform,
a badge and a gun every day
and goes to work and tries to do his best.
We're all here.
We're putting this on TV.
This guy's gonna go home tonight
and listen to his son maybe cry about
how everybody at school made fun of him
'cause his dad's a bad cop.
This was a hard day and there have been
some hard days for Sergeant Colborn.
But... any pain...
any burden that he's bearing...
pales in comparison
to what the State of Wisconsin
and the people working for it have
inflicted on Steven Avery and his family.
And right now Steven Avery
needs Jerry Buting and Dean Strang
and anybody out there
who believes in him, badly.
We do believe in him.
We are willing to do hard things
to advance his cause,
and he's been saying since November, 2005,
that someone must have
planted his blood if it's in that car.
[female reporter]
But my question is, though,
is that if you were gonna
put somebody on the stand
and accuse that person of a conspiracy,
Mr. Kratz kind of made it sound like
you should be able to offer some proof
that this planting actually took place.
You're hearing the evidence
of the conspiracy.
And I have sat in many a federal court
room and heard federal prosecutors
prove a conspiracy on less
than we've heard already here
and then you will hear
by the end of this trial, I think.
[Buting sighs]
[Buting] The way this case
is coming in at this point
is much better for the Defense
than I would've thought. Much better.
[car starts]
Every single day, we're reminding them
about Manitowoc's continued involvement,
about bias in the investigation.
[Kratz] Sergeant Orth, were you
the first law enforcement officer
- that was on the Avery property itself?
- Correct.
Where was it that you
stopped your vehicle?
I stopped the vehicle right where
Pamela and Nikole Sturm were standing.
They were positioned
right around this area
and they were directing my attention
to this row of vehicles.
All right. Do you recall about what time
you arrived at that scene?
Approximately 10:59 hours.
10:59 a.m.
Now Sergeant Orth, from your arrival,
would you have been in a constant position
to determine whether any
law enforcement officer or citizen
entered or disturbed that vehicle?
No police officer or citizen
approached or touched that RAV4.
I'm gonna come right out and ask you,
did you see a gentleman who works for
your department named Lieutenant Jim Lenk?
- I did not see him.
- Did you see a gentleman
who works for your department
named Andrew Colborn?
No, I did not see him.
That's all I've got
of this witness, Judge. Thank you.
[Buting] You didn't
actually start preparing a log
of anybody coming to and from that scene
of the RAV4 until... 2:45,
isn't that right?
As soon as I stood behind the vehicle
approximately 30 feet,
I used the small notepad
out of my shirt pocket.
That was a rough log that I started.
When I proceeded back to the staging area
is where I prepared a final log,
which is probably
what you're referring to.
All right, if you would just read
what you say
for the entry that says 14:45 hours,
that is 2:45, is it not?
- Correct.
- Read the last sentence.
"I started a log to document
the names of individuals
approaching the immediate area
around the vehicle."
- OK. "I started a log." Right?
- Correct.
Is there anyplace earlier in your report
where you mention
that you ever took any notes anywhere else
about who was coming and going,
other than this entry right here
that it says it's 2:45 p.m.?
No. My rough field notes,
that's when I started previously.
- Do you still have those?
- No, I do not.
So we just have to rely on your memory,
is that right?
As far as the time of breaks
and the time I approached.
- And who came and went, right?
- Correct.
[Fassbender] When I got there on Saturday,
ultimately I got down by the car crusher
about 2:25 I think it was,
and the officers
that were staged there, I told them,
or I recommended that they start a log.
Agent Fassbender,
any time after 2:00 p.m.,
did you see any law enforcement officer
or citizen tamper with that RAV4 vehicle?
No.
- Is that important to you?
- Yes.
Why?
'Cause that's probably right now
our main piece of evidence in this case.
Did it cause you concern
that for four hours,
the major piece of evidence in this case
was under the control
of the very department
that had already been determined to have
a conflict of interest in this case?
No, it didn't. I knew that officers were
on that scene, protecting that scene.
Well, did you suggest
that Manitowoc back off
and that the Calumet deputy take over?
- Was that part of your decision?
- I don't believe so.
It happened, but I don't believe
that was specifically my decision.
So it was just coincidental that
it happened around the time you arrived?
- Oh, probably. Yes.
- All right.
And in fact, you were trying
to shape things up a bit,
make sure that logs were taken
and all of that when you arrived.
I suggested a log be kept.
And that's good police practice
to do that, right?
- Certainly.
- You then have a record
- of everybody who comes and goes, right?
- Correct.
Even the top dog sheriff
has to sign a log like this, right?
You should, yes, if you're going
by that checkpoint, yes.
Well, unless you were eluding
the checkpoint in some way,
you would really have to sign in,
wouldn't you?
Correct.
All right, so the log shows that
Lieutenant Lenk signed out at 10:41 p.m.
- on Saturday, November 5th. Correct?
- Yes, if this is all November 5th. Yes.
OK. Well, if you take a minute
and look through there
and show me where
Lieutenant Lenk signed in.
Do you see an entry
that Lieutenant Lenk signed in
anywhere on that log on November 5th?
No, sir, I did not.
Theoretically, a trial is supposed
to be about the day your sister died
and how she died and who did it,
yet it seems as though the State
is spending an inordinate amount of time,
especially with law enforcement officers,
not talking about that,
but who had access to what,
to what scene, to what vehicle...
Are you concerned that, with each witness,
this window of reasonable doubt
keeps getting wider and wider?
No, I'm not concerned at all.
Um, I think it's a hand that's kind of
forced upon the prosecution team.
That's, you know, kind of my belief,
so not concerned at all.
[indistinct chatter]
[Kratz] As you sit here today,
Lieutenant Lenk,
do you recall about what time
you arrived at that scene?
Uh, it was just shortly after 2:00...
2:05, somewhere in there.
Now when you got to the scene,
the Avery Salvage scene,
had there been any kind of log in
or check in procedure put in place yet?
- I don't recall a log in at that point.
- All right.
I just don't recall.
Lieutenant Lenk,
any time on the 5th of November
did you have any contact
with Teresa Halbach's SUV?
No, sir, I did not.
Did you have any contact with her SUV
on the 4th of November
or the 3rd of November
or in fact any time there before?
No, sir, I did not.
Lieutenant Lenk, did you ever obtain
any blood from the clerk's office
or did you obtain any blood
from any location
and plant it anywhere
in Teresa Halbach's vehicle
or anywhere where it could be found
as part of this investigation?
No, sir, definitely not.
[Strang] Now, what you testified
on direct examination
was that you arrived at the Avery salvage
property just shortly after 2:00,
- 2:05 or something like that?
- Yes, sir.
If you arrived at about 2:00 or 2:05,
then that may have been before
anyone started keeping a log.
- That's correct.
- Under those circumstances,
the fact that you didn't sign in
would not look strange or odd.
No, sir.
The, uh... subject of when you arrived
at the Avery property that day
has come up before in this case,
hasn't it?
Yes, sir.
You gave testimony under oath
back on August 9, 2006?
I believe that was the date, yes, sir.
Now, the oath, of course,
was the same you took today.
Correct.
And were you asked on that occasion,
"And did you in fact arrive
at the Avery property?"
Your answer: "Yes."
Question: "Do you know what time?"
Answer: "I'm not sure of the exact time.
Somewhere 6:30 or 7:00 that evening.
I'm not positive."
Were you asked those questions
and did you give those answers?
Yes, sir, I did.
Now if you had arrived at 6:30 or 7:00,
it would be a little hard to explain
why you're not on the log signing in,
wouldn't it?
Yes, it would.
My blood starts to boil
when the Defense...
When I hear that these police officers,
these good solid citizens,
good decent men,
are accused of planting this evidence,
it starts to get my blood boiling.
They can get up here and act as offended
as they want, as often as they want.
But they're presenting this case,
the way it was done, who it was done by,
who was not excluded from it.
When the public was told
that Manitowoc was not involved...
They sat up here at press conferences
and told you
Manitowoc was not involved
in this investigation,
when in fact, now we know they were,
and that they were
four months later, even.
You gotta wonder, what's going on here?
If Lenk was involved
with the transmittal of evidence in 2002,
then he probably would've known
that this box of Steven Avery's blood
was in that case file.
And he would therefore have known
in October and November of 2005,
when the Halbach vehicle is discovered
on November 5th,
he would've known that there was a source
of Steven Avery's blood available
in the clerk's office.
[Buting] This is a picture that shows
the file in the clerk's office?
Correct.
And the file actually
has the exhibits in it
- as well as the paper documents, right?
- Correct.
All the exhibits are underneath all the...
I think all the paper
was pretty much at the top.
I mean, and when people go through it,
it doesn't necessarily
end back in that same condition,
and I think when it was kept over
on the side filing cabinet,
I tried to level things out too
so the cover could...
the flaps could come over because
I didn't think that was a very secure...
Sure. But there is that...
See that foam board exhibit
in the background?
Right and that would probably
stick out no matter where
- 'cause it was too big for the box.
- Yeah. So the box wouldn't close.
- Right.
- OK. No matter what you did.
All right. Now would it be fair to say
that the presence of sheriff's deputies
inside the interior part
of that clerk's office
was not that unusual an event, right?
That's correct.
Now in addition,
the sheriff's department has access
to the clerk's office with master keys,
isn't that right?
- The security bailiffs would.
- OK.
A master key would allow entry to the
inner part of the clerk's office, right?
- I guess.
- OK.
And that would include after hours,
on weekends or in the evenings, right?
Correct.
- [Dolores on phone] It seems suspicious.
- [Steven on phone] Yeah.
[Dolores] Them people ain't gonna
get away with everything.
[Steven] No. No.
- That's why Kratz is worried about it.
- [Dolores] Yeah.
[Steven] Yeah, he's scared now.
- [Dolores] Oh, yeah?
- [Steven] Well, why wouldn't he be?
- Dolores, how's Steven doing?
- How is he doing?
Can you comment?
[indistinct chatter]
[female reporter] ...while you were there
that you'd like to share with us?
- Is there anything you can share with us?
- [Dolores] I don't want to share.
[female reporter]
Can you tell us how he's doing?
Can you please comment on something
so we know what everyone is thinking?
- Can you talk to us?
- Where am I gonna walk?
I can't even see.
How are his spirits?
What did you guys talk about in this
20 minute period you were there for?
- Anything you'd like to say?
- Did he say anything about Brendan?
Can you talk to us at all today?
[Buting] When blood is taken
for a blood sample or blood tests,
it's put in a purple top tube.
It has a preservative
to keep it from spoiling,
and that's a chemical called EDTA.
We do not have EDTA
in our own bloodstream.
If you find it in a stain,
the argument is it must be
because the blood was planted.
And so I looked into could we test
the stains in the RAV4
to try and make any kind of
scientifically valid conclusion
about whether or not the blood stain
could've come from a tube
of preserved blood
as opposed to an actively bleeding person.
And there was nobody
who did those tests anymore.
But then the State somehow managed
to get the FBI to create such a test...
and have it ready sometime
in the middle of the trial.
[male reporter] How are you going to deal
with the issue that
in December you were told
this was gonna take four to six months,
which would've been way too late
to present at this trial,
and then all of a sudden,
they got it done in a couple of days?
Well, it wasn't a couple of days.
I think, um...
I don't see it as a problem.
- OK?
- [female reporter] Thank you.
- Thank you very much.
- [female reporter] Oh, I have one.
- Yes, ma'am.
- [laughter]
[female reporter]
This is a bit speculative,
but had the FBI not been able
to expedite that testing so quick,
would the trial have just gone on
without these test results?
Yes.
That's a pretty big thing.
- [Gahn] Now can I go?
- [male reporter] Thanks, Norm.
- [female reporter] Thank you.
- [male reporter] Run, Norm, run.
- Thank you.
- [laughter]
- Good, 'cause I'm chompin' at the bit.
- [male reporter] All right.
- I don't know why.
- Yes.
Oh, I'm happy to be here.
You know, this case,
as unusual as it has been already,
has now become even more
unusual and unique
because it's the first and only time
anywhere in the country
where an expert is being allowed
to express an opinion
about EDTA being on a blood stain or not
when there's a challenge.
The only other time it's ever
come in at all was the O.J. case.
And both sides agreed to it.
Here, uh, this judge is the first judge
who's ever ruled...
this kind of test to be admissible.
[female reporter] But the jury is still
going to hear these results.
Yes, they are. And that's unfortunate.
You know, we'll do our best
to explain to the jury
why they shouldn't be relied upon.
You know, we'll see what happens on that.
[Steven on phone] You know,
I always get my chances where...
yeah, I'm gonna get out,
and then this stuff comes
and I can just see that they're trying
to do their damnedest to keep me in.
So you know, this... it's scary.
Come down to it.
- [man] Morning.
- [Buting] Morning.
[Gahn] Dr. LeBeau, did you know that this
was a case that involved an allegation
- of police planting evidence?
- Yes, I did.
Why would a case such as that,
an allegation of law enforcement officers
planting evidence,
be of a concern to the FBI?
Well, one of the areas that the FBI
is responsible for investigating in this
country is crimes of public corruption.
If an individual is truly
in that political position
or in a law enforcement position
and they are doing something illegal
that erodes the public's trust
in that agency or that individual,
and we would want that, certainly,
that individual out
of that office or off the street.
Now I'd like to ask you, Doctor,
what was your thought process
in approaching this case
that was sent to you?
There's going to be one of two scenarios
when you're dealing with the notion
that blood was planted from an EDTA tube.
The first scenario is that if you find
the presence of EDTA on that blood stain,
then that's an indication that
that blood came from a tube,
such as a purple top tube.
The other scenario
is that you do not find EDTA,
and that would then suggest
that the blood came from active bleeding
and not from an EDTA preserved tube.
Were you able to reach a conclusion
concerning the presence of EDTA
on the blood swabs that you tested
from Teresa Halbach's RAV4
that were sent to you in this case?
Yes, sir. And we were not able to identify
any indication of the presence of EDTA
in any of the swabs
that were submitted to our laboratory
and were reported to us
as being collected from the RAV4.
Do you have an opinion to a reasonable
degree of scientific certainty
whether the blood stains from
Teresa Halbach's RAV4 that you tested
came from the vial of blood
of Steven Avery
that was in the Manitowoc County
Clerk of Courts office?
It's my opinion that the blood stains
that were collected from the RAV4
could not have come from the EDTA tube
that was provided to us in this case.
You think this is vindication?
[Gahn] Yes,
I clearly believe it's vindication.
You know, here are two officers who were
accused of something just terrible.
That's terrible that they would
plant evidence and try and frame someone
and basically ignore
whoever it may have been
that, uh, murdered Teresa Halbach.
I mean, what an awful thing to do,
it would be, to the family
of Teresa Halbach, to Teresa Halbach.
It's just a dastardly thing
to think about or even conceive.
It's clear vindication.
And it's just something welcome
to all of the law enforcement community
because it's just...
it's such a despicable allegation.
That's all I can say.
And I think that this testing,
uh, cleared that issue up
and, um, cleared it up in a very,
very strong powerful way.
[Buting] Look how quickly they got the FBI
to retool their instruments,
recalibrate everything, do these internal
validation studies they're gonna claim,
um, and get results
within a matter of weeks.
A few weeks.
On a test that they
haven't done for ten years.
And yet, the crime lab has, in 2002,
evidence in its lab
that Steven Avery is innocent, and it sits
for a year before it gets tested.
It shows the imbalance
between the individual
and the power of the government.
The full force of which they're
trying to bring to bear on this man.
Why? And why in this case?
Because we have accused,
and the evidence suspiciously points to
framing by one of them.
And when you do that,
"you do so at your peril,"
as the State would say, you know?
Hopefully, though, the jury's gonna see
that there's this imbalance
in the way that they're prosecuting
this case and investigating this case.
And I think what's going on here,
it's not...
Again, it's not like they think
they are framing an innocent man.
But they are.
They think he's guilty.
And they're doing whatever they can,
you know, to twist the evidence
or create a case that supports that.
- ...one of the conference rooms here.
- Yeah.
- Mark.
- Hi, how are you?
[indistinct chatter]
You testified about why the FBI
would have any interest in this case
in the first place.
- You recall that?
- Yes, I do.
You testified that
one of the FBI's concerns
was that if there's a corrupt cop
on the street doing something illegal,
and certainly planting evidence
to frame somebody would be illegal, right?
- Would you agree with me? OK.
- Yes, I would.
And that one of the functions of the FBI
was to ferret out bad cops like that.
Right?
- Generally, that's what I... Yes.
- OK.
- Generally, that's what I said. Yes.
- OK. I'm gonna show you
what's been marked as exhibit 479.
Would you read the sentence
on the top of page two?
It discusses the purpose of this request
for your services.
"The purpose of this request
is to establish the presence of EDTA
in the vial of blood,
thereby eliminating the allegation
that this vial
was used to plant evidence."
OK. Can you show me anywhere in there
where that request says,
"Our purpose is also to find out
if there might be any evidence
that there's a corrupt cop
in Manitowoc County"?
I don't see anything of that nature.
Is homicide of a citizen in the State
of Wisconsin a federal crime?
- No, sir, it's not.
- OK.
Is mutilation of a corpse
in the State of Wisconsin a federal crime?
- No.
- OK.
So, the purpose of you
getting your federal agency
involved in this state crime
was to eliminate the allegation
that this vial was used to plant evidence.
Isn't that true?
No, sir.
If I can elaborate,
I'd be happy to explain.
You can elaborate later, sir.
You only tested three swabs
that were reported to have been found
in the Teresa Halbach vehicle, right?
That's correct.
Do you know how many other stains
were also found in that vehicle?
- No, I don't.
- Your opinion
that there's no EDTA in the swabs
from the Halbach vehicle then
is limited to the three swabs that
were presented to you, isn't that right?
Could you repeat that?
You expressed an opinion a little more
broadly than perhaps you intended to,
I believe, which was that the blood stains
in the Halbach vehicle
could not have come from the purple vial
that you tested. Right?
That's correct.
But you're actually referring only
to the three stain swabs that you tested.
Correct?
No, I believe my original testimony
is what I meant.
Are you telling me right now
that even though you never tested
three other swabs of separate blood stains
found elsewhere in the RAV4 vehicle,
that you're willing to express an opinion
that none of those three swabs
have EDTA either?
I believe that to be true
within a reasonable degree
of scientific certainty, yes.
OK. Just wanted to know how far
you were willing to go.
The issue with this procedure
is not whether or not
it's a valid result if you got...
if you were actually detecting EDTA.
This is a good method...
If the results end up that you
detect EDTA and you identify EDTA,
that's a good indication that EDTA
was present in that sample.
The problem really occurs when EDTA
is not detected in a blood stain.
And the problem in that regard is,
from this method,
I don't know whether that's simply
because they didn't detect it
or because it wasn't there.
I can't tell the difference
between those two for this method.
I don't know really
what their method detection limit is.
So I don't know whether
they didn't see it or it wasn't there.
And looking at the data
that is available in this stack,
the validation tests that were done
and those sorts of things,
is there any indication that the FBI
ever found out what
the actual detection limit
or method detection limit would be
for this kind of a test?
No, there's no such indication
in these data.
And so from this data,
can you express any opinion
about whether the three stains
examined by Mr. LeBeau
could have come from the blood sample,
the blood tube Q-49
that was also examined?
It's quite possible that those blood swabs
could've come from Mr. Avery's blood tube,
but simply not been detectable
by the laboratory.
So even having gone through this test,
is it possible that EDTA is or was
in those three RAV4 stains?
Yes.
What about the three swabs from the RAV
that were not tested by Mr. LeBeau?
Can any conclusion be drawn on that?
I'm an analytical chemist.
I'm not in the business
of just guessing what's in samples.
We have to test samples
to decide what's in them.
So, can you conclude then
that any of the RAV4 stains
that were examined by the FBI
could not have come from the blood tube
that contained Mr. Avery's blood?
I can't conclude that.
[Buting] If we can convince them
on the major points,
then as long as there is a "reasonable
hypothesis" as the jury instruction says,
then I think we've got a chance
to convince them.
All this, of course, assumes
that we end up with 12 people
who really are unbiased and impartial,
despite, you know,
- the months of publicity that they've had.
- Right.
And you know?
That's asking a lot of human beings.
This case, you know, could've been
a futile exercise for the last month
if we ended up with people
that can't do that.
And there's just no way of knowing.
The false imprisonment count here
is the last vestige
of the unsupported, inaccurate,
uncorroborated claims
of Brendan Dassey that were broadcast
by agents of the State
to everyone who had a TV turned on,
that threatened the right to a fair trial,
that threatened the right
to have a jury drawn
from the venue in which
this crime was charged,
and that curled the hair
of anyone who listened to the description
of a naked woman manacled to a bed,
sexually assaulted, stabbed,
throat cut, strangled,
when the slashing
of her throat didn't kill her,
and then only later,
a corpse shot 11 times.
That was the story. That was
the horror story that was presented.
And the false imprisonment charge,
as I say,
is the last vestige of that horror story.
It was a fable.
An ugly, horrific fable,
but a fable all the same,
belied by the physical evidence
and by the testimony
in the State's own case-in-chief.
So I'm asking the court to, in a sense,
ratify what the State has already done.
Which is the abandonment of this charge
and the abandonment
of the theory that Brendan Dassey
had anything to do with this...
or that the story that Brendan Dassey told
under police questioning...
has any veracity, corroboration,
or foothold in the evidence
presented at this trial.
[Judge Willis] During voir dire,
a number of jurors indicated
they were at least somewhat familiar
with the case against Brendan Dassey.
To submit this charge to the jury would,
the Court believes,
invite the jury to fill in the blanks,
if you will,
by what they might otherwise remember
about allegations
that have not been supported
by evidence in this case.
The Court concludes there is not
sufficient evidence in the record
to support a jury finding
of guilt beyond a reasonable doubt
on the false imprisonment charge,
and the Court therefore grants the
defendant's motion to dismiss that charge.
[male reporter] The motion hearings
this morning on a litany of issues
that have already gone before the jury.
How do you unring that bell with the jury?
[Strang] In one way,
we're back to February 28, 2006.
We're back to the three counts
Steve faced originally.
And in another way,
we can never be back to February 28, 2006,
because March 1 and March 2, 2006,
happened with the State's
press conferences
and all of the ugly,
and as it turns out, untrue things
that were said publicly
against our client since then.
So is it nice to see the last vestige
of those allegations fall away?
Sure. And am I gloating over it?
No, because they never should've
been there in the first place.
[Judge Willis] If you can move
the microphone over to Mr. Avery then.
Uh, Mr. Avery,
do you understand that the decision
whether to testify or not
is yours to make?
Yes.
That means you can listen to your
attorneys and listen to their advice,
but ultimately it's your call.
Do you understand that?
Yes, I do.
Has anyone made any threats
or promises to you
to influence your decision?
No, they didn't.
Have you thoroughly discussed
your decision with your attorneys?
Yes, I did.
And have you made a decision
as to whether or not
you wish to testify in this case?
- Yes.
- What is your decision?
The decision is...
I'm an innocent man and I...
There's no reason for me to testify.
Everybody knows I'm innocent.
OK. So you wish not to testify,
is that correct?
Yes.
- Thank you. You may be seated.
- Thank you.
[indistinct chatter]
[female reporter] So Steve Avery
talked today. What was that like?
From what I've seen of him before,
he likes to talk,
so I think he probably would've liked
to be up on the stand, but, um...
You know, it's kind of counterintuitive.
Uh...
If he's innocent, he should go up
on the stand and say, you know...
He has nothing to hide,
so why isn't he up there? But, um...
- Yeah.
- [male reporter] Mike, what was going
through your mind
when he said he was an innocent man?
Um, same thing that's been going
through my mind for 16 months.
Everything I've heard him say
hasn't been the truth.
No different today.
You know, I think that he thinks
he's been let out of prison once,
he thinks it's probably
gonna happen again. But, um...
I don't think, uh... I don't think so.
[laughs]
All right, so that's it.
That's the evidence.
[Dolores] Now what?
Well, now we argue it.
And, uh, you know, you guys
will have the day off tomorrow,
by and large, yeah.
Let's talk about a couple of things.
You guys started with six counts
against Steve.
We're down to three counts.
That's the good news.
The bad news is, if we lose count one,
nothing else matters.
- No.
- Nothing else matters.
If we lose count one, he's going to prison
for the rest of his life.
Barring winning on appeal or, you know,
testing of the EDTA later,
but the sentence will be life in prison
if we lose count one.
[theme music plays]