01x07 - Framing Defense

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?


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.


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?


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.


And so that, of all places, you knew was important that you make sure that these Manitowoc officers not be alone.


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?


This was a first for you, wasn't it?


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?


That was not on your radar, was it?


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.


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.


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.


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.


You chose to do it yourself.


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?


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?


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?


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?


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?


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?


Is that important to you?



'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?


You then have a record of everybody who comes and goes, right?


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?


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.


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?


And the file actually has the exhibits in it as well as the paper documents, right?


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.


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.


A master key would allow entry to the inner part of the clerk's office, right?

I guess.


And that would include after hours, on weekends or in the evenings, right?


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.


female reporter: Thank you.

Thank you very much.

female reporter: Oh, I have one.

Yes, ma'am.


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?


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.


Good, 'cause I'm chompin' at the bit.

male reporter: All right.

I don't know why.


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.



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.


Generally, that's what I... Yes.


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.


Is mutilation of a corpse in the State of Wisconsin a federal crime?



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.


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?


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.


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?


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?


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?


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...


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.


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.

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