I’ve spent the week researching the Avery case after watching the seductive documentary "Making a Murderer." I wanted to know what was left out or glossed over. I conducted interviews, including with a juror, and read hundreds of pages of court transcripts, including Brendan Dassey's confession.
The complexity and amount of evidence was boiled down into a far simpler narrative by the Netflix documentarians. We are to believe the cops smear a little blood around, plant a key and bullet. Maybe they move a car.
Armed with more evidence, however, we can work out the framing plot hypothesis in our minds.
I think the defense poked holes in the case by raising serious questions. However, this would have been the most elaborate, complicated framing in the history of frames. Or at least one of them. Those cops up there in Manitowoc are geniuses.
Furthermore, it would have to be a DOUBLE FRAME by people not working together. Both the killer and cops would have to be planting lots of stuff separately and almost simultaneously – bones for the killer; key, blood and maybe sweat or skin cells for the cops – to get Avery. That is, unless you think the killer and cops are one and the same – but even Avery's defense did not argue that. Someone, the cops or someone else, not from the salvage yard property being the killer would raise a host of new questions, such as how they knew Teresa Halbach was there, how they got the bones back onto the property without being seen and more.
And it would take multiple agencies in cahoots, too – including agencies that would have no motive as they were not involved in the earlier wrongful conviction case or the civil suit that followed. It becomes fantastical at that point.
I am reminded of the principle called Occam’s Razor. This dates back to a 14th century friar, and it is often interpreted as "when you have two competing theories that make exactly the same predictions, the simpler one is the better." Occam’s Razor also holds that "one should not make more assumptions than the minimum needed."
So let’s walk through this complicated conspiracy.
Let’s borrow the defense theory and start with the assumption that someone else – not the officers and not Avery – killed Teresa Halbach. There were certainly other unsavory characters on the property with troubled backgrounds that the defense wanted to blame – although if one of these individuals did it, they were such geniuses that they didn’t leave a speck of DNA. The defense argued officers planted evidence to strengthen the case against Avery and specifically said they were not arguing the officers killed Halbach.
So let’s start with that premise.
Someone else, who knew she was at the property that day, killed Halbach and sneaked her bones into the burn pit at the salvage yard (and maybe also at a nearby quarry). We would have to then believe that the accused officers managed to slip into the Clerk of Courts office and draw Avery’s blood from an old sample. Not impossible, but didn’t anyone see them and remember them being there after all this controversy? OK, maybe they sneaked in at night. They pierce the blood vial with a syringe and draw out some of his blood.
Then, we have to believe that they stumbled upon Teresa Halbach’s car and that it was not on Avery’s property. This is great luck. Or maybe they stumble on the car and then sneak into the Clerk of Courts office to get the blood.
Perhaps the killer dumped the car off the salvage yard property. An officer on routine patrol sees it. And thinks: Halbach was last seen at Avery’s compound. Here’s our chance.
Now Netflix conspirators would argue that one of the deputies called in Halbach’s plate so he must have been looking at her car. Let’s say he was, for the sake of this exercise (he denies that). He – or they – would have to spot the car, with the key in it, abandoned on the side of the road (before anyone else does) and drive it somewhere to plant stuff. Unless they already had his blood from the courthouse vial with them. If they didn’t, where do they put the car while they run to get the blood?
But wait. They don’t just need his blood. They also need Avery’s sweat (or skin cells), according to what the prosecutor said in the Dassey opening statement (and to the media now). This is because DNA from Avery’s sweat (or skin cells) was found under the hood latch of Halbach’s car and on her key, the prosecutor insists. If that's the case – the defense now says it was not definitively proven it was sweat and didn't necessarily mean he'd touched it – the cops would have to obtain Avery’s sweat (or more implausibly, his sloughed off skin cells). How? I suppose they could have gotten it off an item of his clothing or bedding. Or from a buccal swab he was given at some point. Or something.
It's getting very complicated.
State DNA analyst Sherry Culhane testified at the Dassey trial, "Steven Avery is the source of the DNA that I developed from the swab of the hood latch." She testified, "There was no visual staining that was consistent with blood or anything," according to court transcripts.
Same with the key that was found in his bedroom. There was no visible sign of blood on that either, but his DNA turned up, she said, although the sample was too small to test it for blood. Later on, she explained such spots without visible blood stains were analyzed for DNA because Avery might have touched them. This is called "touch DNA."
She explained to the jury what "touch DNA" is. When there’s not a visible blood stain, Culhane testified, "What I’m looking for is a transfer of epithelial or skin cells that may have been transferred from my hand to the item." Unlike blood or semen, touch DNA often involves smaller amounts. According to Forensics Magazine, touch DNA "is simply DNA that is transferred via skin cells when an object is handled or touched." The magazine also says that "later research verified that the presence of sweat helps to contribute to the DNA profile obtained from touch DNA samples."
Either way, we know Avery's DNA is under the hood latch and on the key, according to Culhane's test. Touch DNA would be even tougher to plant, it seems to me. How would one pull that off? Yet the documentary got into none of this. At another point in the Dassey trial, Culhane was asked if she was looking, in part, for DNA from sweat, and she said yes. Back to the plot.
Let’s go with this a bit and say for the sake of argument that they get their hands on Avery’s sweat or sloughed off skin cells to create touch DNA. Then they smear the sweat and skin cells and blood around the car, which also contains Halbach’s blood. But how would they know at this point that the Halbach blood in the car was not the blood of the actual killer? I suppose they could have planted blood earlier and sweat or skin cells later. If they are just planting his blood around, as the defense would argue, it's still a complex frame.
After all, they also have to drip this blood in such a way that a blood spatter expert would later testify that his opinion was it came from someone "actively bleeding" (such as the cut which Avery, very coincidentally as it turns out, had on his hand), versus someone smearing old blood around, according to Dassey trial transcripts. So the cops now need to be blood spatter geniuses in order to outfox a real spatter expert or just pretty darn lucky as to how they dripped that blood around all those spots to make it look like it came from an actively bleeding person.
Getting complicated. Lots of moving parts now.
They would have to do all of this while not getting a speck of their own DNA in the car. If Avery was not the killer, how was it that the real killer did not leave a speck of his own DNA in the car, if cops planted evidence on Avery? To drive the car, the cops would have to touch the ignition.
But Avery’s blood was found on the ignition. So they would have to plant the blood after dumping it at the salvage yard – which would be harder to do without being seen. Unless the car was left at the salvage yard by the killer, and the cops snuck onto the property to plant stuff in it or planted all of it after it was found on the property by the citizen volunteer. At that point, of course, the place swarmed with citizens and officers roaming around. Or maybe they planted it all after it was moved into storage but before the crime lab started analyzing it. Except that trial testimony shows it was ensconced at the state crime lab and analysis was underway within 2 days of it being found. Then the calling in the plate part doesn't fit and you've got cops sneaking into the car when it's already evidence in a tight time frame.
If Avery didn’t do it, the real killer was a forensic genius. Not a speck left behind, not a hair, not a fingerprint, not perspiration, or sloughed off cells, not blood, in this car – of the real killer or the supposed planter. Who are two different people as this theory goes who are both forensic geniuses.
The cops have to decide to smear all of this stuff around the car. They don’t just smear a dab of the blood. Why not just stop there? Why not drop a little and get the heck out of there?
According to court transcripts, Avery’s blood was found in six locations in the vehicle, so they would need to smear it on a CD case, on the ignition and on the passenger door and its metal edge. They also need to drip his blood on the front seats and rear tailgate and on the front console floor. Then, they need to smear his DNA under the hood latch. But wait – why not put it somewhere more obvious?
Also the hood latch was swabbed for DNA (by an officer from another agency, not Manitowoc) after Dassey confessed (to yet more officers from two agencies that are not Manitowoc) months after the car was found. This was because he confessed that he had seen his uncle raise Halbach’s hood. In other words, he said Avery touched it. That’s according to the Dassey trial testimony.
So you’ve got to involve more officers in this now from multiple agencies. And, remember, Avery allegedly told investigators that he had never touched or been in Halbach’s car.
Let’s go back to the idea they sneak the car on the property since that’s what the documentary seemed to be implying with the calling in the plate thing. Now, these crafty cops must drive the Halbach vehicle – without anyone seeing them do it and without leaving their DNA in it – onto the Avery salvage yard property. I was there this week, and it’s a secluded compound down a dead-end road, with dogs, that was home to many people. So you’d have to do this maybe at night – and hope no one would hear or come out to check.
Then, the cops would have to remove the car’s license plates and sneak around the junk yard before sticking the plates in another junked car where they were later found. Not sure why they’d risk doing that. If they planted the car, wouldn’t they leave the plates on because they would want people to know it was Halbach’s car?
Not satisfied with the DNA motherlode they’d left in the vehicle, then or by sneaking into the storage locker, they would have to plant the Halbach car key in Avery’s bedroom later, too. The officer who found it had searched the residence several times and not found it before. Why wait to plant it? Wouldn’t you plant it right away? And why plant it and then find it yourself? Isn’t that kind of obvious? Why not just plant it and then walk away so a Calumet or State person finds it?
Anyway, he’d have waited eight days and then he has to find a way to wipe the key with Avery’s DNA before suddenly finding it on the bedroom floor. I suppose there was a lot of bedding and clothing in the bedroom that a key could be wiped on. He must do this when no one is looking. Magically, this key has Avery’s DNA, and it goes into the ignition that has Avery’s blood. Pretty crafty.
Then, months later, yet another cop – this one from Manitowoc – must be brought into the frame to plant a bullet in the garage, smeared with the victim’s DNA. Furthermore, this bullet forensically matches the gun that Avery kept in his bedroom. So the cops need to get a bullet from that specific gun to smear with DNA.
And two other cops – from entirely different agencies, Calumet and DOJ – have to somehow then get Avery’s nephew Brendan Dassey to say he saw Avery lift up the hood. Since pieces of Dassey’s confession tie into this evidence, how would he know to say those things if it was planted? You’d have to have the interrogators in on it, too.
Getting more complex. And again, they’re not even from Manitowoc. They’re from two different agencies.
The hood was not swabbed until after Dassey told cops that Avery lifted the hood and that was months after the crime. Now, in the Dassey interrogation, one investigator raised the hood lifting to Dassey first. That is important and very interesting. He asked him about it, and Dassey said, "Yeah, that happened." Of course, maybe they had seen a disconnected cable in the vehicle and wondered about that.
Furthermore, in his confession, Dassey also said he saw Avery put Halbach’s key in Avery’s bedroom dresser. He also said they burned the bed sheets to eliminate blood evidence. So somehow Dassey would need to be coaxed into falsely confessing about Avery taking the key and putting it in his bedroom so it matches the key being supposedly planted in Avery’s bedroom. But if you read Dassey’s confession, he’s pretty detailed on that point.
I suppose they could have planted the DNA under the hood after Dassey was lured into confessing to that detail to then get some corroboration to his confession. But the key was found way before the Dassey confession. Or I suppose the DNA analyst could have contaminated the sample. Or all of the samples. It’s now taking more than one or two people though, and is a multiple agency frame job with lots of moving parts.
And the motive of the civil suit disappears for those folks.
I have said from the beginning of this documentary hoopla that I think it raises some very troubling questions. If Manitowoc officials had just let other people handle it, these questions would be harder to raise. It is curious they kept finding evidence after others missed it, and Avery was wrongfully convicted once before.
However, when you walk through this knowing more of the evidence the documentary left out or glossed over, it gets pretty darn goofy.
I suppose you could also argue that someone planted some of the evidence, but not all of it, and that Avery actually did it.
I found Brendan Dassey’s case the most troubling – he was interrogated without parent or lawyer present for starters and seems to have a very low IQ and that defense PI didn’t seem to be operating in his best interest – and there is no DNA tying him to the crime. If he was involved, it seems obvious he was the pawn of the older uncle.
However, his confessions are extremely detailed – far more detailed than the documentary depicts, in fact – albeit contradictory in parts and interlaced with denials and later taken back. The jury, of course, heard all of it. Read for yourself.
But why not frame him, too, with DNA if you’re already planting evidence?
There’s also the bone fragments. How did they get into Avery’s burn pit and possibly in a nearby quarry? Not to mention Halbach's cell phone and other remnants and the way they were mixed with steel tire belts. If Avery didn’t burn the body and the real killer was framing him by putting the bones outside his door, why not just put the body outside his door?
And now you’ve got the non-cop killer framing Avery by planting bones near his garage and a bunch of cops planting a key and blood and maybe a car and other cops with no motive luring Dassey to confess to corroborate details for the planted key and planted DNA.
Man, that’s complex.
And Avery would have to coincidentally decide to bleach his garage in a junkyard where people don’t seem obsessed with cleanliness and have a bonfire.
Quite honestly, when you read the transcript of Dassey’s confession, that plotline sounds a lot simpler, doesn’t it?
Jessica McBride spent a decade as an investigative, crime, and general assignment reporter for the Milwaukee Journal Sentinel and is a former City Hall reporter/current columnist for the Waukesha Freeman.
She is the recipient of national and state journalism awards in topics that include short feature writing, investigative journalism, spot news reporting, magazine writing, blogging, web journalism, column writing, and background/interpretive reporting. McBride, a senior journalism lecturer at the University of Wisconsin-Milwaukee, has taught journalism courses since 2000.
Her journalistic and opinion work has also appeared in broadcast, newspaper, magazine, and online formats, including Patch.com, Milwaukee Magazine, Wisconsin Public Radio, El Conquistador Latino newspaper, Investigation Discovery Channel, History Channel, WMCS 1290 AM, WTMJ 620 AM, and Wispolitics.com. She is the recipient of the 2008 UWM Alumni Foundation teaching excellence award for academic staff for her work in media diversity and innovative media formats and is the co-founder of Media Milwaukee.com, the UWM journalism department's award-winning online news site. McBride comes from a long-time Milwaukee journalism family. Her grandparents, Raymond and Marian McBride, were reporters for the Milwaukee Journal and Milwaukee Sentinel.
Her opinions reflect her own not the institution where she works.