<![CDATA[  MOORE TO THE STORY..... - \"Moore to the Story\"]]>Sun, 17 Apr 2016 22:11:17 -0700Weebly<![CDATA["Making a Murderer," An FBI Agent's Take; Episode 10]]>Wed, 13 Apr 2016 05:46:29 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-10EPISODE 10:


At the conclusion of all ten episodes of Making a Murderer, I find myself disappointed.
I had honestly believed that by Episode 10, I would be fighting off a strong belief in either Steven Avery's guilt or innocence, forcing myself to wait until I saw evidence that confirmed or contradicted my conclusions. This turns out not to be the case. Frankly, I have no better idea at this point whether Steven Avery is guilty of the murder of Teresa Halbach than I did after Episode 1.
Yes, the filmmakers presented substantial evidence which went to both Avery’s innocence as well as his guilt. However, like an unfinished musical composition, the chord they struck was never resolved. Much circumstantial evidence was presented early on that Steven Avery was culpable in the murderer of Teresa Halbach. As the documentary progressed, I expected the episodes to incrementally and convincingly make a case for Avery’s innocence. If they tried, they failed—at least as far as I am concerned. I am not saying that I believe Steven Avery is guilty (or innocent). The point I am making is that I found insufficient evidence in and of itself to make a determination either way.
Many concerning issues and actions were brought up, but not resolved. One prominent example is the curious call for registration information on Teresa Halbach’s vehicle by Sgt. Colburn—days before the RAV4 was found. I fully expected this enigma to be addressed further in the documentary. It was not. I have no idea whether this will ultimately be pertinent, but it is frustrating to be left hanging.
Another astounding broken thread is the reference to an obsessive caller (and potential stalker) of Teresa Halbach. How can you leave that hanging?

Maybe it is my ingrained desire for substantial, unassailable evidence that caused me to become so frustrated with the long, panoramic, artsy, views of the junkyard over the (non-evidentiary) monologue of one or more of the Avery clan lamenting an injustice. I do not intend to minimize their frustration or their grief. However, I believe that they might have been better served if the filmmakers had actually used some of that time to present concrete evidence. As a result, at the end of the day, too many questions in the Steven Avery case are left unanswered.
In the filmmakers’ defense, maybe that was their plan all along; to pose questions and let others answer them. If that was their goal, then the very fact that I wrote this article and you are reading it is proof that they succeeded.

To be clear, I am certain about some things, because they are self-evident and do not require scientific confirmation. I believe that the evidence provided in the documentary is conclusive proof (at least in my professional opinion) that the prosecution of Steven Avery was conducted by an unscrupulous prosecutor more concerned about a conviction than he was the truth.
The episodes also provided sufficient evidence to prove to me, beyond any reasonable doubt, that Brendan Dassey’s ‘confession’ was absolute, police-fed, fantasy. My strong belief is that Brendan Dassey had nothing to do with the disappearance or murder of Teresa Halbach in any way, though I still want to confirm that with the evidence I have not yet seen.
I believe that from a professional and moral standpoint, Len Kachinsky stabbed Brendan Dassey in the back, and with the help of Michael O’Kelly, bears significant responsibility for the loss of a decade (and counting) of the life of Brendan Dassey.

I am convinced that evidence proves conclusively that Teresa Halbach was not murdered in Steven Avery’s garage or home.
I believe that the investigation conducted by Manitowoc and Calumet County Sheriff’s investigators, as well as Special Agent Fassbender from the Wisconsin Department of Justice was pathetic. It was the result of either gross incompetence or intentional (criminal) evidence planting—or both. I am not yet ready to say where I come down on that aspect.
The rulings and courtroom conduct of Judges Patrick Willis and Jerome Fox were appalling. I personally believe that both judges were strongly biased in favor of the prosecution. How could Judge Fox remove a defense attorney for allowing an unrepresented interrogation of a client, then allow the results of that interrogation to be admitted as evidence?

The following are just some of the items about which I have a very preliminary opinion, which I believe might well be influenced by more substantial evidence.
  • I have serious questions as to the behavior of certain officers during this investigation, among them Lt. Lenk and Sgt. Colburn.
  • The fact that people who reasonable investigators around the country would consider prime suspects (ex-boyfriend, male roommate, obsessive caller), were apparently ignored during the investigation is stupefying.
At this juncture I must point out, as I suspected might happen, that I found that I have a tangential involvement with somebody involved in one of these cases. I am the chief investigative officer of an organization known as Judges for Justice, a group of former law enforcement, attorneys and judges as well as former elected officials, who are looking into several cases of alleged wrongful convictions. One of the cases in which I have been significantly involved is the pro bono defense of Christopher Tapp of Idaho Falls, Idaho. Christopher Tapp was convicted of murder approximately 18 years ago in a case strikingly similar to that of Brendan Dassey. In both situations, a person of, at best, low-average intelligence was fed information the police wished to use as testimony against a different suspect. In both cases, that information was used to convict a person who believed their only hope was to cooperate with the police.
Another person involved in the Tapp case is Steve Drizin. Drizin, of course, turns out to be Brendan Dassey’s post-conviction attorney; a fact of which I was not aware. I have never personally met Steve Drizin, and my efforts on the Tapp case were independent of his. We have been on the same E-mail string several times, but I have no recollection of ever even E-mailing him personally. That said, I believe that his conclusions in the Tapp case are spot-on. Mr. Drizin might recognize my name, but that would be the extent of our association.

  • Michael O’Kelly and Len Kachinsky were wildly biased against Brendan Dassey before they saw the first piece of evidence.
  • O’Kelly should never be allowed to testify in a courtroom again.
  • Len Kachinsky is an embarrassment to the legal profession.
  • Wiegert may not even have the ‘horsepower’ it would take to successfully plant evidence.
  • thought Kratz was enjoying the descriptions of an alleged sexual crime a little too much.
  • If you think about it, there’s now more demonstrative, proven evidence of sexual deviance by Ken Kratz than there is of Steven Avery and Brendan Dassey – combined. (A date to an autopsy? No wonder he looked a little sweaty describing the fictitious version of the murder of Halbach.)
  • If Kratz’ ability to keep his disgusting behavior (sexting the victim of domestic abuse???) a secret for a year with the help of the Wisconsin DOJ isn’t proof of a corrupt system, what is?
  • Why didn’t Governor Foley prosecute Kratz?
  • Kratz complains that his reputation would take a hit just because of an accusation? Really? Sucks, huh?
  • Kratz laments that he’s forgotten. As long as I’m alive, he won’t be.
As Creepy as he seemed.

In the Christopher Tapp case in which I’m involved, most, including myself have long given up on the State of Idaho providing justice. It’s simply a matter of biding time until the last state appeal is (inevitably) denied. Once that happens, the case can be removed to the federal appeals system, which seems to have less trouble recognizing injustice.
In the Avery and Dassey cases, the same dynamic holds true. Once the cases are clear of Wisconsin, real chances for justice come into play.
Ultimately, I am left with a couple of thoughts;

First; the best (but hopefully not the only) way to conclusively prove the innocence of Steven Avery and Brendan Dassey, is to conclusively prove the guilt of the actual killer.

Second; if it turns out that Steven Avery was not the killer of Teresa Halbach, and the actual killer murders again, then Ken Kratz, Len Kachinsky, Michael O'Kelly and a number of law enforcement investigators will have blood on their hands.


Please accept my sincere thanks for reading these articles and bearing with my schedule issues during the latter episodes.

At this time, I'm ready to receive input at this site which you might believe to be pertinent. I do want to point out that given the volume of material in the case file, (see photo), I will not likely be reading every word on every single page. Please remain patient as I am coming down to deadline on a book project as well as writing now for CNN.com. (See below)

<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 9]]>Sun, 03 Apr 2016 21:03:35 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-9EPISODE 9:


​It was during this episode that I realized something very telling and significant; after more than 8 episodes of Making a Murderer, and only that show, I had developed (against my own intentions) a subliminal assumption that Steven Avery was innocent. That’s quite a statement about the persuasive power of a television documentary, especially in the absence of most of the evidence.
I consider this assumption, however, being based on only a small fraction of the information available regarding the case, invalid. (This is not to say I now assume Avery is guilty—I have to be careful, I’m already receiving hate mail from people who believe I think he’s guilty.) 

In fact, not only have I only seen a small portion of the evidence, that evidence I’ve seen has been carefully selected by a group of people—the creators of Making a Murderer. And then it hit me; I now know how a juror feels. Jurors may have questions, but they can only depend on what a few people (attorneys and a judge) decide to show them. They cannot investigate on their own, nor delve into the aspects of the case which most perplex them. My advantage, obviously, is that before I pronounce my ‘verdict,’ I can do my own freelance investigation.

Just as this documentary began to create in me an assumption that I had tried to guard against, many jurors also begin trials with an assumption: That the police are to be trusted without question. This does not surprise me in rural Wisconsin. Generally, I subscribe to the belief that the police are the ‘white hats,’ that most police officers have the best intentions and few are so corrupt that they would plant evidence. I believe that most of the time, law enforcement evidence is correct and appropriate. That said, a positive predisposition towards law enforcement does not absolve jurors from the responsibility of ensuring that government-presented evidence is valid. Juries must take seriously their responsibility to examine carefully both defense and prosecution evidence, not necessarily because police are corrupt, but because they’re human. As Ronald Reagan once so famously said, “Trust, but verify.”

It is often said that locks exist to keep honest people honest. Part of a jury’s responsibility is to keep “the people,” honest. When they do not, they betray not just the defendant, but our entire system of justice. In the Avery and Dassey prosecutions, it is my belief that regardless of the ultimate actual guilt or innocence of Steven Avery, that the juries in the Avery and Dassey trials abdicated their responsibilities to the defendants and to the American system of justice.


Whatever the outcome of the Avery and Dassey case(s), I have to admit to an admiration for defense attorney Dean Strang. This sentiment may not seem significant, but think about what you just read; an FBI agent (who does only one thing in court—prosecutes) admires a defense attorney.

This admiration is founded in Mr. Strang’s eloquent and perceptive view of the processes that lead to wrongful convictions and the human toll they leave in their wakes. In Episode 8, Mr. Strang spoke truth that I have personally witnessed, a brutal truth that reflects the loss of “life” suffered by innocents who are accused of horrible crimes.

“To be accused is to lose…..What you can hope to get is your Liberty back, eventually. That’s all you can ever hope to get.”
Certainly, it is easy to successfully accuse people of low social or financial status, but no one is safe. I watched as Amanda Knox and her ex-boyfriend Raffaele Sollecito, two of the more wonderful people I have had the privilege of knowing, were robbed of years of their lives, as well as their reputations, for no other reason than the accusations of an unscrupulous prosecutor.
In Episode 9, Strang once again succinctly nailed one of the main causes of the debacle known as the Avery investigation, deeming it “unwarranted certitude” by law enforcement. His description of their actions as “…a tragic lack of humility…” was so spot-on that it rightfully provided the title for that episode.

I have to admit to being slack-jawed at Ken Kratz’ prosecution of Brendan Dassey. After completely ignoring or even dismissing Dassey’s ‘confession’ in the trial of Steven Avery, Kratz disgraced himself by shamelessly basing his prosecution of Dassey on the disproven statements.
Well, one might point out, Kratz was dealing with a different jury and different defense attorneys so his strategy was different. But truth isn’t a ‘strategy.’ For a prosecutor to change what he or she argues to be “true,” depending not on fact, but on the audience, is to treat truth as a personal concubine, who works only at their pleasure.
My overriding question personally is how professional investigators could put any credence in the ‘confession’ of Brendan Dassey. Brendan’s statements were so incredible that reasonable people around the world see them as ridiculous on their face. So why did Wiegert, Fassbender and Kratz believe them? In a word:


[guhl-uh-buh l] 
  1. easily deceived or cheated.
  2. credulous, trusting, naive, innocent, simple, green.
What struck me most about this episode, was the incredible lack of sophistication displayed by the investigators in this case. The naiveté of Mark Wiegert is terribly disappointing, and may be an indication of the investigative experience he accrued while working in rural Wisconsin. But even then, it is hard to accept. This lack of insight would doom an investigator in an organization such as the Los Angeles Police Department or Sheriff’s Department.
The ability to differentiate “S*** from Shinola” is an imperative in law enforcement. It’s not simply in determining who is lying to them or discerning truth in the course of an investigation, it’s a requirement of their daily duties. In the big city, criminals are pretty sophisticated, and if you aren’t, you’ll be taken for a bunch of ‘rides.’
Bluntly, unsophisticated law enforcement officers are victims in the big city. Sophistication in law enforcement is not an intrinsic characteristic. It is the result of hard experience. Some of the greatest teachers of sophistication are ‘sources;’ aka, “snitches,” or “informants.” Informants are frequently as good at reading police officers as officers are at reading them. Informants learn very quickly that information=money. Therefore, informants will provide information, whether the information has any basis in reality or not, whenever they happen to be in need of cash. A strong indication of a rookie investigator is one who is paying a lot of money to informants, yet not making any arrests.
Really good informants can get rich on a single naïve cop. Wiegert would be the golden goose. I don’t think he was unintelligent; I just think that his lack of real experience in complicated crimes is painfully obvious. He reminds me of a country doctor forced to undertake open-heart surgery.
An example of Wiegert’s inexperience is that he somehow believed that Avery and Dassey could “clean up” a bloody murder scene so completely that no DNA, hairs, blood evidence, fingerprints or any other physical evidence would exist, and do so in just five days. Yet, he also believes that following a near miraculous cleanup, they left a DNA-contaminated bullet in plain view.
In fact, anybody who has ever spent much time investigating actual murders know that the chances of cleaning a murder scene so completely that no blood evidence can be found is near zero. But Wiegert believed it.
Neither, by the way, did Wiegert or Kratz (to the best of my knowledge) present any information that Dassey and/or Avery conducted any cleanup of any kind. If you’re going to allege a cleanup, you can’t just assume it, you must provide evidence of the act.
But Wiegert had nothing on Det. Anthony O’Neill, Marinette County Sheriff’s Office who believed that he knew simply from Dassey’s affect that the kid was dealing with “an inner conflict….hiding something.” Anybody who believes that they can deduce truth or deception solely from a single conversation with a person is deluding themselves. And they’ve never met a sociopath.

O’Neill had apparently missed the (crucial) day at the Reid Interrogation school when they taught ‘affect.’ Affect is the expression of emotions and/or feelings via facial expressions, gestures, voice and posture.  O’Neill described Dassey’s behavior during the interview as “head down, motionless…” that affect, he said, was strong evidence of Dassey’s aforementioned “inner struggle.” Can the physical demeanor of a person be used to determine stress or deception? Certainly. But the crucial point O’Neill apparently missed in class was that before one can determine if a behavior is indicative of deception, one must determine a ‘baseline’ behavior to compare to the instant behavior in order to detect a difference.

As an investigator, you’re not necessarily looking for lack of eye contact or a head-down posture as indicators of deception, you’re looking for deviations from normal behavior. Some people don’t make eye contact. Some people are morose. Some people look down all the time. Now if an investigator were to interview Richard Simmons and found him morose, lacking in eye contact and staring at the ground, then there might be validity to a perception of strange behavior. But if you’re interviewing Brendan Dassey, then that behavior would be the norm.

Further, the fact that O’Neill hadn’t mentioned anything in his report about Dassey’s demeanor is indicative of the fact that he didn’t think it important enough at the time to mention it. If I ever had any indication that the behavior of a person was unusual or different from their baseline, I would note it in interview reports. Even then, I would not make conclusions, I would simply note the difference in the behavior as opposed to what I believed to be the interviewee’s norm.

O’Neill is also the officer who told Dassey (prior to Dassey’s interview with Wiegert and Fassbender) that Teresa Halbach was seen taking photos of a van by Dassey’s bus driver and fellow students in the bus. That Dassey included the story about seeing Halbach taking photos—in almost the exact wording provided by O’Neill—is further evidence that O’Neill’s questioning of Dassey ‘poisoned the water.’ I find it interesting that O’Neill specifically uttered the hand-washing phrase, “I’m not putting anything in your mind.” O’Neill obviously knew the pitfalls of coaching a witness, and attempted to un-ring the bell he had just tolled. He gets no slack.


But by far, the most ignorant, naïve and unsophisticated comment made during the episode came from, of all people, Tom Fallon, Special Prosecutor, Wisconsin Department of Justice Assistant Attorney General, who uttered the inane statement;

“People who are innocent don’t confess.”

The mind boggles. Apparently, though Fallon apparently possesses the legal experience to achieve the position of Assistant Attorney General of the State of Wisconsin, he was (and possibly still is) unaware of one of the most commonly-accepted facts among actual investigators of serious crimes--innocent people confess. A lot.

Fallon must not peruse law journals, interact with experienced investigators, work complicated cases, speak to psychologists, watch the news—or crime shows, listen to the radio, read books, or accept the opinion of top experts in law enforcement. If he had done any of that, he would have known the truth: Innocent people frequently confess to crimes they did not commit. It is difficult for me to believe that Fallon is this naïve, and therefore part of me wonders whether he was intentionally lying to the jury. We may never know the truth of this matter. 


  • Anybody but me think it's weird that Sgt. Colburn is the deputy doing the transportation and courtroom duties with Brendan Dassey?
  • Neither Episode 8 or 9 ‘moved the ball’ as far as the guilt or innocence of Steven Avery is concerned. These episodes have centered on the apparent malfeasance of Ken Kratz and the incompetence of the investigators involved in the Avery investigation.
  • Still hasn’t provided enough information to prove Avery’s guilt or innocence.
  • The story given by Brendan Dassey is completely impossible, given the physical evidence found, not found, and required for it to be true. Absent other evidence to the contrary, I see no indication that Dassey was involved in any way in the disappearance or murder of Teresa Halbach.
  • Wiegert embarrassed himself on the stand. He made the (somewhat ignorant) point that Brendan Dassey and Steven Avery had five days to “clean up” the crime scene after the murder.
  • What evidence did the prosecution present that the two spent five days cleaning a crime scene, much less an hour? So why is that allowed as evidence in trial?
  • The blood evidence couldn’t be cleaned without a trace. Period. Sorry.
  • Brendan Dassey and Steven Avery are portrayed as sick opportunists unable to successfully kill the victim even after several attempts utilizing different means. However, the moment the murder has been consummated, the two, (one with an IQ of 69) instantly became criminal geniuses, adept in concealing the most minute, cellular-level DNA evidence of the murder throughout the house, the carpeting, the bedding and the concrete in the garage. (Oh, and then they leave a bullet out in the open.)
  • Kratz should have been forced to make up his mind and declare who he was prosecuting; bumbling opportunists or criminal masterminds. They can’t be both.

Very excited about being able (in a week or so) to begin delving into information on the case I have not yet been privy to. Almost always in cases of wrongful conviction, the presented evidence is enough to convict. However, in wrongful convictions, we find that the evidence is unreliable at best, and planted at worst. The big task before me after finishing Episode 10 is to determine which evidence is valid and reasonable. I will not, even among ‘friends’ working together toward learning the truth, accept a piece of evidence as valid without knowing the pedigree of that evidence.
After the conclusion of my next and last analysis of Making a Murderer. I will be initiating a new phase in the investigation; Interviewing witnesses! And you all will be witnesses! You have trial transcripts, you have read the statements of certain people, you have intimate knowledge on the cases, and some of you have areas in which you have specialized. When speaking with ‘witnesses,’ I was always searching for information, but I was also looking for a direction to take the investigation. So from all of you (if you have time) I will be asking you (not now, after Episode 10) to provide me with, or point me toward information you believe is relevant and important.
That will give me a head-start on the deep-dive I’m about to begin after Episode 10. Frankly, I’m excited about where that will take us. And I look forward to working with you all as we move forward.
<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 8]]>Sun, 27 Mar 2016 19:22:09 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-8EPISODE 8:


Author’s note:
Thank you all for your patience in waiting for my post regarding Episode 8. I am, as some of you may know, a CNN contributor, and the attacks in Brussels have kept me so busy that I wasn’t able to keep up with sleep, much less outside projects. I sincerely hope that the world doesn’t need my kind of services for a while.
When I began to dictate Episode 8’s analysis, I started to say that “no new evidence had been presented” in the episode. Then I realized that while the statement might be true in one sense, it was false in another. While no new physical, probative evidence of the guilt or innocence of Steven Avery was presented in Episode 8, the reality was that a multitude of evidence regarding the legitimacy of his trial was presented.
Just under 1,500 years ago, the “Digest of Justinian,” codified then-existing Roman law, becoming the first written record of the doctrine of the presumption of innocence; Ei incumbit probatio qui dicit, non qui negat, i.e. -- “Proof lies on him who asserts, not on him who denies.” Ken Kratz had 1,500 years (3 of them at the Marquette School of Law) to learn and understand that doctrine, but has apparently failed to grasp it. Evidence of this failure is obvious in his statement; “Reasonable doubt is for innocent men.” Stunning. In the U.S., all men are innocent until after reasonable doubt has been decided, so what Kratz was telling the jury was that the defendant in that courtroom (Avery) did not deserve what every defendant in a U.S. courtroom is allegedly guaranteed—the presumption of innocence. I am surprised that even Judge Willis let that go by without comment.
The evidence I saw in Episode 8 consisted not of new facts regarding Avery’s culpability, but of Ken Kratz side-stepping real evidence while engaging in innuendo, theory, and guesswork in order to convict a man and send him away for the rest of his life, regardless of what the actual evidence indicated.

In Ken Kratz’ case in chief, (the prosecution up to, but not including the closing statement) not once did he present a single expert who was willing to go on record as saying that the murder of Teresa Halbach occurred in Steven Avery's garage. At least according to what I saw in the documentary. Not one expert. Yes, I know that there was testimony that a bullet with the victim's DNA was found in the garage, but that does not indicate that the murder occurred in that room—especially absent blood evidence that would have been there. Alleging as much is like saying that because a knife used to kill somebody was found in the kitchen, a year later, that the kitchen was where the murder occurred. It makes no probative sense.
But I suspect Kratz has never been intimidated or swayed by truth. Incredibly, in the absence of any proof, he had no problem telling the jury during closing arguments that the murder occurred in the garage. Frankly, I'm somewhat surprised that he was allowed to theorize in that manner. Federal judges rarely tolerate such conjecture when a person’s life is on the line. Maybe that's the difference between federal court and state court. The other day, I participated a panel discussion with a lawyer friend of mine whose defense practice is approximately 65% federal and 35% state trials. Though we did not speak about the Avery case in particular, this very competent attorney admitted to being astounded by what is allowed to be called “evidence” in a state court, and decried some of the behavior of defense attorneys and prosecutors allowed by judges. “It's a Circus.” She concluded.
If her statement is true (and I believe it is in some cases) Ken Kratz is the ringmaster of at least one circus. Or maybe just a clown. To be completely fair, not all state courts are so brazenly licentious, but many remain so.

One of the things Kratz did was to dispute the defense allegation of police corruption not by disproving it, but by denigrating the allegation. Whenever the defense alleged police planting of evidence, Kratz, rather than showing why such a thing could not and did not happen, instead argued that such an allegation was ‘vile,’ on the face of it, and seemed to deny the very possibility that police corruption exists in society. It is rare, but certainly not imaginary. Kratz treated the allegations as if Strang and Buting were alleging aliens in Area 51 or accusing the officers of molestation.
The sad truth that we all have to come to grips with, is that there is corruption in every part of life. From priests to doctors, to FBI agents, to prosecutors. It is a fact of life. For Kratz and Gahn to repeatedly impugn the legitimate discussion of police impropriety (rather than prove the allegation false) is especially hypocritical in light of the fact that the defendant had already lost 18 years of his life because of a much worse wrongful allegation at the hands of these very same men! Kratz’ duplicity is simply breathtaking.

The truth of the matter is that there was more than enough circumstantial evidence of police evidence planting, along with a demonstrative history of improper police investigative procedures that, had not Buting and Strang addressed it, they would have been guilty of failing to provide an adequate defense for Avery.
The only defense Kratz and Gahn had against these allegations was that “Jim and Andy” have families and jobs. So did Gary Ridgeway, who held a job as a painter at a truck factory for 30 years and whose wife called him “the perfect husband.” Ridgeway is now also known as the “Green River Killer,” who murdered 49 prostitutes during his ‘perfect’ marriage and vehicle-painting career. I’m not equating police corruption with serial murder, but if Kratz’ point was that the officers were to be viewed as more honest because they were married and employed, it was ludicrous.

I found it striking that Kratz found it necessary to explain to the jury why Steven Avery could be guilty even if Teresa Halbach’s “key” was not really found in Avery’s bedroom. Obviously, this was tacit evidence that Kratz believed that the prosecution had convinced the jury that the ignition key had been planted in Avery’s room. Kratz swept over the implications when he said, “even without the key….”  If the accusation of police corruption was so “vile,” why would Kratz even use an “even if it happened…” argument? If there was no evidence-planting, I would expect Kratz to defend the deputies right down to the mat. But, in effect, he did not. So which is it Mr. Kratz? Were the officers good men or did they plant evidence? There’s no such thing as “a little” corrupt. Corruption is no less ‘pass/fail’ than is pregnancy. There is no such thing of being ‘a little’ pregnant or ‘a little’ corrupt.
I was surprised to find that the initial jury vote immediately after the trial was 2 to 1 in favor of acquittal. That speaks volumes of the case against the sheriff’s office. Think about that; 2 to 1. If you include the two who were unsure, it’s 3 to 1 ‘innocent’ or not sure. Ultimately, though, it appears that the intransigence of one fourth of the jury (3 of 12), led to the others changing their minds rather than accept a mistrial.
The jury’s initial vote is even more amazing to me, when one realizes that there were really only two possible conclusions available to them at the end of the trial; either Steven Avery killed Teresa Halbach, or the police framed him. Juries rarely come down on the ‘police corruption’ side.
Besides the strength of the defense case, the other point that the jury votes and later verdict proved (at least to me) was that the jury pool had been significantly tainted prior to the trial. The juror who left after several hours of deliberation very clearly stated that he believed that the three “guilty” jurors had made their decision prior to opening arguments. That’s a pretty strong indictment.
So what (based solely on the documentary) are my conclusions?

I would ask that you read the following statements very carefully, because apparently I have been unclear in some of my earlier conclusions. I have found that some have taken the wrong inference from what I have written, or even attributed to me conclusions to which I have not come to. So here we go:
I do not believe that enough conclusive and reliable physical, testimonial or circumstantial evidence was provided in the course of the documentary to convict Steven Avery of murder. Nor, do I believe that the defense presented in court (at least as seen in the documentary) enough physical, irrefutable, and conclusive evidence to prove that the police planted evidence.
Now before you scroll down to the comments section and light me up like a road flare, please listen to my thoughts:

This was a case of strong circumstantial evidence of Steven Avery's guilt, balanced by strong circumstantial evidence that the evidence which made the case against Avery so strong, was itself, spurious. I am convinced (at least from what I've seen in the documentary) of neither Steven Avery's innocence nor of his guilt. If I were a juror, and I heard all that was presented on Making a Murderer through Episode 8, I would vote to acquit, because of reasonable doubt and lack of reliable evidence.

Picture"Jim 'n Andy"
That said, I am convinced (at least based solely on what I have been shown on Netflix) beyond a reasonable doubt that the police in this matter manipulated and/or planted at least some of the evidence. Therefore, I do not believe that the trial and investigation against Steven Avery were legitimate.
This is not my final and complete conclusion! This is a conclusion based solely and only on information attained from the documentary. I have yet to view Episodes 9 and 10.
I have received dozens and dozens of comments on my previous articles. Rather than answering each one individually, I have decided to discuss them as a group, because many comments are along similar veins.
I hope that I have established in this article that I have no particular pre-existing bias towards the guilt or innocence of Steven Avery, nor his trial. Therefore, what you are going to get from me is my actual feelings on the matter, not my view of what I wish were true or what might be true. What I am providing you is what I believe to be true to the best of my abilities.
In every trial, opposing experts face each other and contradict everything that the other one has said. Usually, one is not 100% right and the other 100% wrong. However, one is usually more right than the other. It's simple logic that both can't be right. So what does it jury do with that information? Is their job to assess which expert they believe to be more credible, for whatever reason. That is what I am endeavoring to do, but as an experienced FBI agent, rather than simply a ‘peer’ of the accused.

Based only on what I saw in the documentary, I find the FBI's test of the EDTA, absent any persuasive supporting or contradicting information at this point, to be the most credible. I don't say this because of my affiliation with the FBI. Let me give you an example. I am a huge fan of the San Francisco 49ers football team (please do not lay me out in the comments section for this. It’s a free country). If I were in Las Vegas the next time the 49’ers played the Arizona Cardinals, no amount of affection for my team could cause me to put any of my hard-earned money on San Francisco winning that game. My dough (all of it) would go on the Cardinals to win. This doesn’t mean I’m a Cardinals fan, nor does it mean that I have ceased to support the 49ers. It is simply an acceptance of reality. As much as I would like the 49ers to win that game, the odds are likely going to be very much against it.
If I believed that the FBI Lab was so compromised that none of their work could be trusted, then what you would've heard from me as a reasonable person was that I give more credibility to the defense expert because frankly, the prosecution seems crooked and the FBI Lab can’t be trusted. But my experience in 25 years in the FBI, even aware of the small fraction of the hundreds of thousands of prior FBI Lab examinations in error, leads me to believe that the FBI test is more likely correct than not. I say this not because I am a fan of the FBI, but because I believe it to be true. My integrity, my reputation and therefore “my money” depends upon my skill as an investigator and my ability to come to correct conclusions, not my loyalty to my former agency.
 If I am subsequently made aware of reliable scientific evidence which indicates that the FBI lab erred on this test, I will just as quickly allow that information to affect my conclusions. If you as a reader believe that my bias has influenced my decision in this matter, I would suggest that you stop wasting your time reading these articles, because if I am biased on that point, then why would anything else I say be of value to you? Blind, actionable bias, like corruption, is an all-or-nothing proposition.

That said, I did not mean to infer in earlier articles that because the EDTA test done by the FBI Lab was negative for the presence of EDTA that Steven Avery was definitively guilty of the crime. 
Yes, I completely accept the possibility that a source of blood different from the questioned vial was sent to the FBI. I noted that Kratz’ statement in court said only that the FBI test proved that the blood didn't come from “that vial.” I found that a curious way to state that fact. However, the FBI Lab not testing the vial in any way to ensure that the blood was—at least—Steven Avery’s, would be surprising to me. That type of error would seem to me to be similar to a doctor amputating the wrong leg. He may have done a nice, professional job with the amputation, but the results were doomed from the start because a basic and crucial validating step was missed. Again, I don't know the rest of the facts, such as whether the blood was typed or even DNA processed to validate that that blood sent to the FBI lab was the blood of Steven Avery.
Was the sample DNA-tested? I do not know the FBI procedures regarding this. However, DNA tests are expensive and they are time-consuming. If a rush was put on that test, it is less likely that DNA extraction and comparison, or even or even blood typing, was done. I would have to see the transmittal letter to the lab requesting the testing, in order to make a rough determination. For instance, if my doctor sends me in for a blood test and tells the lab he wants to check for diabetes or anemia, they might not do many other tests. Even if I had telltale signs of cancer antibodies in the blood, the lab might not detect them if they weren’t specifically tasked with checking for them. Therefore, while I might be deemed clean of diabetes or anemia, I might be dying of cancer and the doctor have no idea of it.

Is it possible that EDTA on in/on the RAV4 could have evaporated or in some way subsided in the drying process in the blood? I don't know because I don't know the scientific facts regarding EDTA in this matter, and I have intentionally not engaged in the necessary offline research at this point.

When I say that the EDTA results make it more likely that Steven Avery is guilty, I am saying that because in order for a police evidence-planting scheme to work, several more layers of conspiracy have to be added. Now, it's not just taking blood out and applying it to a vehicle, now it involves switching blood samples sent to the FBI. It's not impossible, but it raises the level of difficulty and probability.
I can't wait to see how Ken Kratz prosecutes Brendan Dassey, absent using Dassey’s ‘confession’ which Kratz has already invalidated in court. I also wonder how he's going to do it without physical evidence of any kind. I wonder how he's going to do it after repeatedly claiming that one man and one man only murdered Teresa Halbach. I wonder how he's going to do it and sleep at night.

Frankly, though, he might get away with it, because evidence doesn't seem to be a big issue for Ken Kratz or some jurors.

<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 7, Part 2 of 2]]>Sat, 19 Mar 2016 03:54:54 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-7-part-2-of-2EPISODE 7:


After working for years in a large FBI office, the sight of the Manitowoc County "evidence storage facility" shocked me. However, I reminded myself that I had the benefit of working at the FBI's mighty Los Angeles Field Office, which benefits from the latest and greatest equipment and facilities. I kind of felt like a doctor from Cedars-Sinai, horrified that an Appalachian medical clinic lacked  a Positive Emission Tomography scanner. Manitowoc County likely does not have the resources for a state-of-the-art evidence facility, I get that.

But while the doctors at the Appalachian clinic might not have a PET scanner, they must still wash their hands before surgery; that is basic, costs nothing and is just as crucial. Similarly, Manitowoc County is not absolved from the most basic requirements of evidence handling. They must handle evidence in a manner that prevents contamination, unauthorized access, loss or destruction. These requirements do not consume massive resources. Anybody with a hunting rifle takes the same care in their own home. Based on Episode 7, I believe that the following evidence handling issues were conspicuous:

  1. The evidence appeared not to be systematically filed, and therefore retrievable. Imagine taking all the Dewey Decimal markings from a library full of books, then randomly shelving them. How would you ever find the book for which you were searching? Or in this case, how could you find the evidence? This, frankly, would be more of a problem for the prosecution than the defense if they couldn't find evidence for trial.
  2. The evidence was not stored in a manner which would guarantee its safety and integrity. In truth, it was stored in a way that would tend to compromise (damage) the evidence.
  3. Access to the evidence during working hours was essentially uncontrolled. Clerks sat at their desks as law enforcement personnel accessed the evidence on their own. As hard as it would be on the egos of deputies and investigators, clerks must have someone monitor them when they access stored evidence. It's simply the minimum standard of care.
  4. Different types of evidence were improperly co-mingled. You don't physically store biological evidence in the same box as other types of evidence.
  5. I saw no access control log to record who visited the facility, and the purpose of the visit. (This doesn't preclude there being a log.)
  6. The evidence room was secured by metal key locks. Fine. But unlike key-card systems, metal lock & key cylinders do not maintain records of who accessed the facility and when. Metal-key-secured-doors are okay, but are vulnerable to misuse. As we have seen already, Manitowoc County deputies and investigators seem to have little trouble finding a key when they need one.
I was shocked to see that the entirety of the evidence for the case that put a man in prison for 18 years could fit inside of a small moving box. Well, at least most of it could, as much was poking out the top of the box. Maybe that wasn't all of it? I have never seen such a small amount of evidence for such a large felony trial. I could fill walk-in closets with the evidence for some of my cases.

During working hours, the deputies and investigators could obviously roam around the Clerk's Office unchecked. The reason they could do this was likely the social/professional dynamic in the office. The clerks did not seem to exercise control over the deputies, perceiving themselves as somewhat "outranked" by law enforcement personnel. Let me tell you that in the FBI, the evidence clerks were not impressed by a special agent's badge. They had a job to do and they were not going to let an agent screw-up "their" evidence.

The question of after-hours access to the blood evidence, to me, is not overly significant, because it would have been so much easier just to remove the blood from the Clerk's Office during the day and return it later. I don't see how any inventory of evidence could have been done, especially on a daily basis.

This leaves the final question of who would have known that there was blood evidence in the Avery file? The prosecutor of the case might, the lead detective in the case might also remember. But either of those people may have forgotten over time. The one person most likely to be aware of the fact, however, was Lt. Lenk.

Lenk had been given the assignment to transmit hair and fingernail scraping samples to the lab, three years before, in 2002. As we can see by the evidence mess, finding the appropriate samples was not going to be easy. Lenk would have had to rummage through the box of evidence looking for them. They wouldn't look like a binder or a case file. They would likely be stored in some type of special container used for such samples; say a Styrofoam container. Therefore, Lenk would have likely opened up each such container until he found the hair and scrapings. Even if the first container he opened contained the hair and fingernail samples (I hope they wouldn't both be in the same container), he would certainly have opened up all others to ensure that he was sending all of the requested evidence. Lenk almost certainly encountered the blood vial in the evidence room in 2002. The question now becomes, "Does it matter?"


This is going to be a difficult section for me to write. In the interest of 'full disclosure,' let me remind the readers that during the time that Making a Murderer was being filmed and the trial was ongoing, I was an FBI agent in L.A.. I am proud of the FBI. My belief is that the FBI is one of the (if not the) finest law enforcement organization(s) in the world. I believe it is also one of the most honest and reliable law enforcement organizations in the world. The work of the FBI Laboratory in Quantico has amazed me and has helped some of my cases immeasurably. I have several close friends who, at the time of the second Avery trial, held significant positions in the FBI Lab.

I assume that many Manitowoc and Calumet County deputies were also proud of their organizations. My articles have frequently called out MCSO and CCSO personnel for not confronting problems with the Avery case. I understand why it's difficult for them. But if I am to have any credibility, I have to practice what I've preached. Therefore, let me also tell you what I know to be painfully true about the FBI and it's history:
  • As a result of whistle-blower; Dr. Frederic Whitehurst, the FBI Lab has admitted to faulty procedures that provided incorrect scientific testimony. Because of this, lab testimony in several thousand cases has had to be reviewed. It was found that in some of the reviewed cases, the FBI's testimony was in error.
  • FBI agents are not infallible.
  • FBI agents are not immune to corruption. Over the course of the bureau's 100+ years, several agents have sold out to foreign governments, including one with whom I worked. 

Therefore, I must accept the possibility that FBI lab testimony might be incorrect, and so must be willing to consider valid evidence of that possibility with an open mind.

FBI LAB 101:

A short FBI history lesson and lab primer would be helpful at this point.

At the risk of overgeneralizing, the FBI as we know it came to be, because of the laws of the United States in the 1920's and 1930's, combined with the tactics of criminals who took advantage of those laws. Police officers of one state had no jurisdiction in other states, so frequently robbers like Bonnie and Clyde hit banks within sight of a state border, and were home free once they made it across the state line. 

The FBI predates this era, but as a much different, unarmed, organization called the "Bureau of Investigation," run by a young Department of Justice attorney, John E. Hoover. When interstate criminal activity became the newest fad and gangland wars wracked the country, the organization morphed into the Federal Bureau of Investigation and immediately began having an impact, as state boundaries were not limiting factors for them.

Since then, the FBI has had two major functions; investigating purely FBI cases, and assisting local law enforcement throughout the United States with local cases. One of the ways the FBI does this is by providing lab services that places like Manitowoc County cannot otherwise afford. In fact, the majority of the work of the FBI Lab is not on FBI cases, but the cases of local police and sheriff's departments. 

Example: Say I'm a detective in East Stirrup, Texas (population 500 people and 10,000 head of cattle) and I have a case which will rise or fall on DNA results. But East Stirrup doesn't have a crime lab, of course. The FBI laboratory would be a resource for them. The process is simple:

  • The East Stirrup detective would contact the nearest FBI office, in (for the sake of argument) Lubbock, Texas, and request lab assistance.
  • An agent in Lubbock would open a 'police cooperation' file which would authorize analysis at the FBI Laboratory in Quantico.
  • The Lubbock agent's request would include the facts of the crime, possible suspects and any exemplars from suspects with which to compare the sample.
  • The lab would complete their testing, provide a written report to the agent in Lubbock, who would pass it on to the detective in East Stirrup.
  • If the lab results are of value in the prosecution, the FBI will provide lab personnel to testify in the trial as to the results of the test(s).

During the entire process, the lab might or might not be in touch with the detective in East Stirrup. The point is that the lab has very little emotional investment in East Stirrup or that individual case. They have dozens, if not hundreds, of cases in their "in-box" at any given time. Some are more important than others, of course, but absent that, the lab technician is not really deeply invested in any particular case. There is little, if any, incentive to 'fudge' results for the prosecution.  Being of assistance to local law enforcement does not include the intentional manipulation of evidence. 

PictureFBI Laboratory, Quantico, Virginia
The reason that obtaining results from the FBI takes as much time as it does is usually not because a test takes so long to complete, it's because of how many requests the lab receives every day. When a test shows up at the lab, it's at the end of a long, long line.

In the Avery case, Calumet County Sheriff's Office (if procedure was followed) would have contacted the FBI office in Green Bay, Wisconsin and arranged for the testing. Much has been made of the fact that if the testing had revealed EDTA in the RAV4 sample, that the results would be evidence of police corruption, and the FBI would be required to respond. Yes and no.

Remember, the case for which the technician was undertaking tests was a murder/police cooperation case, not a police corruption case. Therefore, the technician could only respond with results of that test. Their choice wasn't "prosecution telling the truth" vs. "corrupt police." Their choice was EDTA: "Yes or no." If they knew about the implications of the results of the test at all, they likely didn't care that much. If the test had revealed EDTA, then Strang, Buting or even Judge Willis would have the option of reporting the fact to the FBI in Green Bay, and a police corruption case could have been opened. Ironically, if the tests had come back with EDTA traces, the person responsible for reporting (and possibly prosecuting) the corruption in Calumet County would be none other than Ken Kratz.

The FBI doesn't like cases like the Avery case. It's not an FBI case, so they can't get any positive points for a conviction, but the publicity provides much opportunity for bad press and criticism. When a case is making headlines, or enough pressure is put to bear, a test can be moved from the bottom to the top of the pile. Occasionally, local congressman hear prosecutors' frustration, and drop a call in to the FBI; this will usually get a case to magically levitate to the top of the in-basket. Whatever the reason was in this case, the test itself didn't miraculously take less time, the schedule for the testing miraculously changed. 

It is possible that FBI Green Bay expressed their interest in this case and the implications of the sample to the FBI Lab? Yes. I don't know if they did, and no evidence (at least shown on Making a Murderer) has been presented to indicate this, yet. I can tell you that the FBI was taking this case very seriously, because they didn't send out a technician to testify in trial. They didn't send out a Section Chief, (supervisor of the section which conducted the test), they sent out the Chief of the Chemistry Unit, the very head of that entire part of the lab. Unit Chief in the FBI is a big position, and having them testify is unusual.

I would be very surprised if Special Agent (Dr.) Marc LeBeau conducted the test in question. But sending a Unit Chief out to Wisconsin to testify indicates the bureau's sensitivity to this case. (For what it's worth, I have never met Dr. LeBeau, nor do I have any recollection of working with him on any of my cases, though I can't rule out that possibility.)

Unit Chief LeBeau testified that three of six samples had been tested and none contained EDTA. It was unclear to me whether all six collected swabs had been provided to the FBI Lab, but that wouldn't have been the FBI's decision. I agree with LeBeau's statement that all six would likely have evinced the same characteristics; if the blood and EDTA had been in the tube together for more than 18 years, the EDTA would have been completely admixed with the blood.

In response to the FBI Unit Chief, the defense witness, Janine Arvizu, a laboratory data quality auditor, testified (and forgive me if this is an over generalization) that tests for EDTA do not suffer from 'false positives,' that is; indicating the presence of EDTA when none exists. If the test showed the presence of EDTA, it would be reliable.

However, according to Arvizu, EDTA testing is vulnerable to 'false negatives,' which would be missing EDTA that is actually present. Therefore, according to the defense witness, the FBI test results would only be reliable if they had shown the presence of EDTA. That seems a little convenient to me. If it supports the defense, it's valid, and if it doesn't, it's invalid. Still, however, I am not a scientist, I do not know the FBI testing protocol and probably wouldn't fully understand it if it was explained to me.

I don't know how sensitive the FBI test was, and what the threshold of detection of EDTA would be in parts per million. Is it possible that the test wouldn't be sensitive enough to detect the presence? It seems so. But it also seems that after 18 years, that blood would be saturated with EDTA. If not, it would have coagulated.

I am a little curious as to why the entire vial wasn't (if it wasn't) provided to the FBI Lab as a control sample, in order to test the blood in the vial itself for the presence of EDTA (which we know was present). This would validate whether the FBI Lab's test would detect EDTA at the parts-per-million level of the blood in the vial. That seems to be a scientific control that would have been extremely useful.


I have a lot of confidence in the FBI Lab, despite its past errors. It was (and still is) undergoing a complete re-certification, and any questionable, invalid, or errant test -- especially in such a public case -- would have raised a pall over the lab which would damage it for decades.

The defense's single witness contradicting the FBI Chemistry Lab PhD Unit Chief was not, to me, persuasive. I did not hear any substantive evidence besides her opinion, that the FBI test was unreliable. What I would have liked to have seen was scholarly research, scientific conclusions, double-blind studies, or even historical accuracy statistics. Instead, I got the opinion of one person. I am not doubting Ms. Arvizu's credibility or knowledge, I am just pointing out that I have no idea (from MaM) whether her opinion was well-grounded.

I recognize that it is possible that the test results were in error. With the recent history of lab errors, the FBI Lab will need to prove their conclusions much more comprehensively than ever before in order for people to have confidence in them. I am completely open to further testing and validation (or invalidation) of the FBI testing regime.

If the FBI EDTA test is unreliable, then I need to see proof. Why not send (blind) swabs to several well-respected state police labs to see if the test results are replicated?

I found Judge Willis' dismissal of the false imprisonment charge both correct and surprising. I had lost all hope that he would ever rule in the favor of the defense, so I have to give him credit for that ruling. Still, that gesture could not possibly overcome the jury prejudice I am sure existed after the Kratz press conferences and news coverage.
I was disappointed that Steven Avery chose not to testify. Had he done so, I would have taken that as a strong indication of innocence. I understand, however, that the defense had a realistic fear of what somebody like Kratz could do to Avery on the stand; something like Fassbender and Wiegert got Brendan Dassey to do in an interview room. Refusing to testify doesn't make Avery guilty.
Finally, what if the FBI test was valid, and no EDTA was actually present in the blood in the RAV4? Certainly it makes Steven Avery a 'better' suspect for the crime, especially combined with a recent, unhealed, large gash on his right middle finger. But if the blood evidence in the RAV4 is true, it does not mean that other suspicious evidence in the investigation and trial is also valid. Once again, the bullet in the garage and the key in the bedroom appear to me (at this point) to have been planted. ​​​​And if Avery killed Teresa Halbach, he didn't do it in his house or garage, and Brendan Dassey's story is fiction.

I suppose that's what makes this case so interesting and simultaneously infuriating to so many people -- there are valid claims on both sides that some evidence against Avery is legitimate, and at the same time there is substantial reason to believe that some of the evidence against him is illegitimate. What we learn from this is that in real life, things are not always 'either/or.' Sometimes corrupt police convict innocent people. And sometimes the police can be corrupt and the defendant guilty. 

Did Steven Avery kill Teresa Halbach? I don't know yet. And we may never know unless a real investigation is ultimately conducted.

<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 7, Part 1 of 2]]>Wed, 16 Mar 2016 06:33:04 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-7-part-1-of-2EPISODE 7:


Episode 7 essentially brought three topics to the table;

  1. Was Calumet County Sheriff's Office really the primary investigating agency in the Halbach case?
  2. Who really had access to the Manitowoc Sheriff's Department evidence room?
  3. What do we make of the FBI test?

The answers to each of these questions have significant implications, of course, and aspects which might not be obvious to everyone.
Unusually, this episode of Making a Murderer cut to the chase pretty quickly. In the previous episodes, I got the distinct impression that the first third of each episode was being used simply to set a tone, generate emotion and reveal the various suspicions of different parties. This time, however, they began with information I believed was specific, and it had to do with who was really running the investigation of the Teresa Halbach murder.
As we all know, the Manitowoc County District Attorney's and Sheriff's offices, wisely recused themselves from the investigation of the disappearance of Teresa Halbach. They did so obviously because of a conflict of interest and a potential lack of impartiality. This decision was an excellent example of official integrity and ethics. Actually, I should say it would have been, had they actually done so. In reality, they said one thing, then did the opposite.
Looking at the entire situation from 30,000 feet, a couple of facts don't seem to fit, and really cause me to wonder about how much this case was pre-judged by Manitowoc County Sheriff's Office (MCSO).

Let's go back to the day Teresa Halbach was reported missing. She was a resident of Calumet County, and at the moment she was reported missing, there was little to indicate who was the last person known to have seen her alive. Within hours of her reported disappearance, however, and well before the vehicle or any other evidence had been found, Manitowoc County recused themselves from the entire investigation. Think about that for a moment. They had no way of knowing the circumstances of Teresa's disappearance, or the likelihood of Avery's involvement.

Obviously, by that time, they had learned that Steven Avery was the last person known to have seen her alive. Certainly, that puts him on the suspect list; a rather long and complicated suspect list. At that point, they had no idea whether Steven Avery was actually the murderer or not, so my expectation would have been for Manitowoc County to jointly work the investigation (based on the fact that Halbach was a Calumet County resident.) This would allow all investigation of Steven Avery -- which was warranted and important -- to be conducted by Calumet. Other suspects could be investigated by Manitowoc. 

Turning the case completely over (at least theoretically) to Calumet County Sheriff's Office (CCSO) is circumstantial evidence that in fact, Steven Avery was the only suspect at that point. I believe that the (apparent) early and complete turn-over of the case to Calumet was a tacit and inadvertent indication of Manitowoc's pre-conceived conclusion that Steven Avery was the killer of Teresa Halbach.

It may seem obvious to those not in law enforcement, but when an interview takes place, especially one which is not been recorded in any way, it is mandated and absolutely necessary that the results of the interview be memorialized a timely manner. For instance, in the FBI, interview transcripts were recorded on form FD-302. At the top of the page of the '302 forms was a blank for the clerk/stenographer to log the date that the interview was transcribed. In the 'footer' of the form, the date the interview was dictated (or 'written') is specified, and in the first paragraph, FBI agents were required to note the date of the interview or investigative activity. We had five days (absent extenuating circumstances) to commit that interview or investigative activity to paper. If for any reason you went past five days, there had to be a good reason. Past 30 days, and you were potentially in some difficulty.

In the attached FD-302, you can see that the investigation was conducted on July 7th and 9th, the document was dictated on the 15th (just missed the 5-day deadline) and the document was transcribed by clerical personnel on July 22nd. We were not always perfect, but we were always conscious of those deadlines. 
On November 3, three days after the disappearance of Teresa, Sgt. Colburn arrived at the Avery property to inquire about Avery's knowledge of the disappearance of Theresa Halbach According to Colburn's report, Steven Avery described Halbach taking pictures of the red van, but when asked to provide further information, Avery allegedly told Colburn that he "didn't talk to her." This, of course, contradicts later statements by Avery and constitutes important evidence.

The more important the evidence, the quicker you want it written up. In this case, however, no documentation of the interview in any way shape or form was made by Sgt. Colburn until June 6, more than seven months later. This, coincidentally, was during the time the prosecution was preparing for trial. Probably just coincidental. Besides the obvious question as to why the statement suddenly came out prior to trial, one has the right to question whether Colburn's recollection of a short conversation seven months prior remains accurate and valid.

If Colburn's statement is true, why did Kratz never mention this inconsistency in any of his press conferences or interviews with reporters? It's likely because Colburn never mentioned any inconsistency in Avery's testimony prior to June. At best, he had forgotten it. At worst, he had created a statement to help the prosecution.  

However, as we start to find out in more detail in this episode, Manitowoc's claim of ceding the investigation to Calumet was fiction; an operational contrivance that was completely untrue, yet important for public opinion. The investigation of the Teresa Halbach disappearance and murder was, for all intents and purposes, an MCSO activity.

Sheriff Pagel of Calumet County stated very clearly in the early press conferences that the only involvement at all by MCSO would be to "provide resources." Resources, in law enforcement parlance means manpower and equipment. So...what he said was, in reality, 'Manitowoc County Sheriff's personnel will have no involvement in the case - except that they will be doing the searches and investigations.'  No involvement means no involvement. There is no "small involvement" in an investigation any more than a woman can be 'a little pregnant.'  Imagine your surgeon coming into the operating room with one clean, gloved hand, and one bloody hand. If he said, "Don't worry, I'll only be using this hand when the clean hand needs help," that wouldn't be much of a comfort, would it?

I understand that Manitowoc County is nearly twice the size of Calumet County, and would likely have more law enforcement resources. However, any pretense that Calumet County was in control of the investigation was, at best, a fantasy. In reality, this was a case of the tail wagging the dog.

Let me digress for a moment for the purpose of an illustration. When my FBI squad was operating in Pakistan, we obviously didn't have law enforcement jurisdiction in a foreign country. However, if our squad of six or seven agents needed to accomplish a search, process a crime scene or interview a suspect, we could do so as long as we brought along at least one Pakistani police or military officer. That officer was "in charge" of the investigation, and therefore, we were simply assisting with a Pakistani investigation. Sure.

The officers had no idea what we were doing, rarely spoke much English, and didn't have the technical skills to participate in the investigations we were conducting. They usually stood outside and smoked cigarettes. But when we identified terrorists and Pakistani authorities arrested them, guess who was "in charge" of the investigation? Our allies, the Pakistani's of course. That's fine; terrorist off the streets and we don't have to explain how we did it.

Calumet County, I suspect, was playing the part of those clueless Pakistani "chaperons." This became evident early in the episode when Calumet deputy Sgt. William Tyson testified that he was told by investigator Wiegert, that no Manitowoc County Sheriff's Office deputies were allowed to be alone on the Avery property.  Maybe this was an actual attempt at propriety by Wiegert. I don't know. Regardless of how impressive the words, however, the execution was a failure. 

We learned from the testimony of Sgt. Tyson, that during the searches of the Avery property and Steven's room in particular, three Manitowoc County deputies were accompanied by a single Calumet deputy. (A search, I might add, in which no key was on the floor in the place Lenk later found it.) What does that tell you about who was in charge? There is no doubt in my mind, based on the unvetted information I have obtained from the documentary, that the searches of the Avery property were de facto searches by MCSO.


In the search of the bedroom which revealed the RAV4 key, the searchers included Lt. Lenk (MCSO), Sgt. Colburn (MCSO), and investigator Dave Remiker, (MCSO). These three older, higher-ranking, experienced MCSO investigators were 'chaperoned' by a relative young deputy, Daniel Kucharsky. While the three MCSO investigators were conducting the search, Kucharsky was sitting on (and therefore contaminating) a piece of crucial evidence-the bed on which the murder allegedly took place. Kucharsky wasn't searching, he was documenting the evidence discovered by the Lenk, Colburn and Remiker. How in the world can this be considered a recusal by MCSO? Kucharsky wasn't even a detective, he was a patrolman.

In contrast to Tyson, Kucharsky was never told that he was there to babysit the other investigators. When pressed, Kucharsky admitted without reservation that during the "search," he had been taking photos and "doing other things," and that it would be entirely possible that the key could've been planted without him seeing it. 

Before that admission, however, Kucharsky was asked if Lenk had an opportunity to plant the Toyota key. Kucharski declared with a surprising lack of awareness of the fallacy of his statement, that the other officers had no opportunity to plant the key because "they would have already had to have the key." This was one of those times when my jaw inadvertently fell open. Kucharski, bless his heart, was a young officer testifying only on his belief that an illegal act of planting evidence by another police officer was completely impossible. Therefore, it would be illegal for them to have the key and plant it, therefore they could not have done it. His answer assumed that the officers could not have been corrupt. 

PictureWould have been hard to miss that key in a search of that little bookcase.
The prosecution explains the miraculous appearance of the key by claiming that it fell from a bookcase that had been searched on November 5 and November 8. Lt. Lenk himself stated in his testimony that on those days, he witnessed the bookcase being emptied of magazines and paperwork so that it could be more carefully searched. This was not a large bookcase. It had just a couple of shelves and was easily searched. It is inconceivable to me that the bookcase could have been searched and the Toyota key missed. This borders on impossible in my opinion. Yet, the prosecution claims that the key was somehow in or on the bookcase, possibly lodged in a secret or invisible area. When the bookcase was moved, the keys  were dislodged and fell on the floor. Let's think about that for a second:
  • For a key to have fallen from any point on the bookcase, (especially considering that nothing else fell at that time), it would have had to be adjacent to an edge of the bookcase; a shelf or on the top, etc.
  • The key and fob would have been in plain sight. Why? Because if it was blocked from view by an object, that object would have had to have fallen first.
  • The key couldn't have fallen through an object concealing it.
  • Therefore, throughout the entire search that day, with three trained detectives and a new, enthusiastic deputy, with the key and fob in plain sight, they didn't see it until it was on the ground. I call shenanigans.
Finally, the bookcase had been searched and more than once, and on at least one occasion moved around with some gusto. It didn't fall then?

Another completely senseless statement was made on the stand. It was testified that  when they saw the key, they immediately knew that it was "...an important piece of evidence." Really? How?

I recall from early photographs of that exact same bookshelf, that a large wad of keys were visible on the shelf. Why, all of a sudden, was a single key nobody had ever seen before instantly determined to be a crucial piece of evidence--even if they recognized it as a Toyota key? In an auto yard where there are literally thousands of vehicles, most of which arrived at the recycle yard with keys in them, would a single unidentified key be instantly recognized as crucial evidence? No. In my humble opinion, they knew suspiciously quickly the significance of that key.

And frankly, there was absolutely no reason to believe that any evidence of any significance would be found in that room. 

You ever show up late to a garage sale? Anything good left when you got there? Usually just a few broken toys and an exercise machine. The first people at the garage sale got the good stuff. The second group likely found any bargains that the first missed, and the third mopped up. When you got there, the owners were cleaning up and about to toss the rest of the non-sold junk. Searches are like that. The first people in the search area find the best stuff. If there's a second search, anything missed by the first is discovered. Frankly, I've never been on a search that went through three 'passes' over the same territory. The expectations of finding anything in that room had to be near zero. But amazingly, we have Lenk, Colburn and Remiker there. Why? It's going to be a dry hole and these experienced investigators had to have known that. But there they were. That doesn't make sense to me. Neither does their immediate conclusion that they had something important that nobody else had found before....


  1. Based on what I know at this point, I cannot help but come to the conclusion that the Toyota key was planted in that room by Lenk, Colburn or Remiker, and my belief is that Lenk is the most likely candidate.
  2. That evidence was planted does not automatically make Steven Avery guilty of murder, nor does clear him of murder. As I have said many times, the police in different jurisdictions have "helped" the conviction of guilty men as well as innocent men. Just because the police are willing to plant evidence doesn't make the suspect innocent. It might make convicting him (legally) problematic, however.
  3. The claim that Manitowoc County Sheriff's Office was an uninvolved, uninterested party in this investigation is a sham.

<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 6, Part 3 of 3]]>Sun, 13 Mar 2016 23:37:23 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-6-part-3-of-3EPISODE 6


(Author's Note: "Doh!"

In my dad's FBI (he came aboard in 1962) and a majority of my own, (1983-2008), agents worked in open "bull-pens." Desks were lined up side-by-side, and facing another row. Imagine a shopping mall parking lot.  You would think that in an organization as 'compartmentalized' as the FBI, you would not want other agents to hear what you were doing. But that was back in the day when 90% of what the FBI 
was doing was criminal investigation and not classified, counter-intelligence and/or counter terrorism. 

The bullpen system was not created as a cost-saving factor; it was a J. Edgar Hoover mandate. Regardless of Hoover's 'eccentricities,' vindictiveness and whatever other evils people may ascribe to him (most of which have some basis in truth), he was also the father of modern forensics and criminology, and in my opinion had one foot planted firmly on either side of that fine line between genius and insanity. (Ask my dad, he met him during his tenure with the bureau).

One of Hoover's strokes of genius was the bullpen. He firmly believed that every agent should have as much information as possible about what other agents were investigating. It was an early form of mass intelligence sharing. One would literally hear what other agents were talking about on the phone, and they might, for instance be able to help. "Hey, you need someone inside the 'Lamplighter Club' on 6th and Wilshire? I've got an informant I can stiff in there for you..." or "Hey, I had a bank robbed by a guy who meets your suspect's description!" Cases were solved that way. But I think the greatest value of the bullpen was "coffee cup case reviews." Agents would grab a cup, put their feet up on their desks and talk to others about their cases. It was cathartic, fun and frequently resulted in "Aha!" moments.

Agents listening to others talk about their cases, unburdened by the case agent's deadlines or preconceived notions, would often see obvious problems with the case agent's conclusions or investigative plan. Many a time, I saw investigations destined for a train wreck put back on the rails by an astute comment from an otherwise uninvolved agent. Frequently, the astute comments would emanate from grizzled, senior agents like my own personal hero Dave Barker, who would begin his critique with, "Hey Sherlock...."

This process thickened agents' skins, forced them to come to grips with their own fallibility, and forced them to learn those important words, "I was wrong..." As we have seen in MaM, some investigators never learned those words.

I completely anticipated that these articles would be the web's version of the bullpen, and I am happy to see that proven true. In my last article, I wrote extensively about the fact that .22LR bullets do not (usually) possess the kinetic energy necessary to exit the skull, once fired into it. I stand by that statement. However, several readers pointed out something that should have been obvious to me, but that I missed: They reminded me that more than one bullet could have been fired, and that not all the bullets fired were certain to have hit the victim's head. If a bullet was fired into soft tissue like a forearm or a flank, and only had a few inches of flesh to penetrate, they would indeed exit, and could possibly then still have the victim's DNA aboard when exiting. They are correct.  That said, it still does not solve the issue of why the bullet was discovered in a bloodless garage, nor does reveal (to me, at least) the condition of the face of the bullet.

However, I would like to thank the readers who pointed this out, thereby giving me the opportunity to say, "I was wrong..." I still have faith in the bulk of my conclusions, but yes, that particular bullet could have exited the body. Unlike in the FBI bullpen, though, I do not owe any of you a case of beer.)

​On to the article....


This revelation is a game-changer. It was unclear to me from Episode 6, whether the bone fragments in each of the three burn locations were traced by DNA to Teresa Halbach. If they were human but not Teresa's, then Manitowoc County has a whole new problem. My comments will be based on my assumption that the bones were Halbach's.

First potential burn site was the quarry pile, which was a relatively long distance from the Avery trailer/garage. Second was "Burn Barrel #2" (which leaves open the question of what item wa designated "Burn Barrel #1" and what is its significance?) And finally, you have the Avery bonfire/burn-pit.

Here is my first assumption as an investigator: The body was burned only once. There is no need to burn it twice. It is possible that portions of the previously-burned body were dumped into an existing fire, but I consider that disposal, not evidence of the need to continue burning the body.

Even if I were trying to dispose of the body by burning it, and say, dumped the body in a fire and returned later only to find that the body was not consumed to my satisfaction, I would not move the bones to a different place to burn them, I would relight the fire in the same location, because obviously, the location had passed the first test--it hadn't been discovered. So,

1. Only one location was used to cremate Teresa's body.

So, how do we explain bones at three different sites?

The disturbing issue here is that if one had completely burned the body to the point that they were satisfied that no part of it would be useful as evidence, they would have no reason to move the remains/ashes. Therefore, I believe that whoever burned the body knew that the remains (bone fragments) were still potential evidence.

If I were the killer (or the person who burned the bones; they are not necessarily the same person(s)), I would be faced with a problem; what do I do with the small amount of remaining bones that I believed (see paragraph above) are still potential evidence?  Easy, I would bury the bones, wait until they cooled and put them in a garbage bag and dump it in somebody's trash bin, or whatever it took to ensure that the bones were not discovered.  With the remains now at a manageable volume, this would be relatively easy.

But the killer (or the person who burned the bones) did nothing of the kind. They transferred the bones to another location where another fire had taken place. A fire they likely would have known had taken place. Under this scenario, the body was turned after the Avery bonfire.

Dr. Leslie Eisenberg, Forensic Anthropologist, testified that at the quarry site, two fragments of human pelvic bone were found. The pelvic bone is roughly 18 inches by 6 inches and might weigh a few pounds. Burned and fragmented, it is substantially smaller, and could easily be moved in a container not much larger than a shoe box. Those fragments would not have been difficult to move.

But what if your need was to move the entire remains of Halbach from the quarry to the Avery burn pit?You would need a container entirely different. You would be shoveling the bones and ashes, likely from a pit still hot and filled with glowing coals and embers. You would need a large container and it could not be made of a substance which would either burn or melt. What would you use? What about a steel 55 gallon drum?

This leads us back to Burn Barrel #2 (BB2). Could the body have been burned in that container? Possibly, but keeping the fire going in that drum would have been difficult because it would have displaced the air necessary to burn, and would likely have required accelerants (flammable liquids, etc.) which would have left detectable traces inside the barrel and likely on at least some of the physical remains. I have heard no information from my admittedly limited vantage point that anybody saw a large burn being conducted in that container during the time Teresa was missing. 

To me, the discovery of remnants of Teresa Halbach's body in BB2 is strong evidence that the primary burn site was at the quarry, and that the remains were moved -- via BB2 -- from the quarry to the Avery pit. Using a 40 pound, unweidly 55 gallon drum -- which might be reported missing -- to transport two pieces of pelvis is implausible, and doesn't explain why other remnants were found within.

Dr. Eisenberg testified that the bones at the Avery burn pit did not display the damage she would expect of samples which had been moved. What she failed to take into account was that the bones had been moved before she saw them, and without any precaution against damaging them. They were literally retrieved with shovels, sifted and boxed. That observation alone invalidated Eisenberg's theory about movement damage. Her other theory, that the majority of the bones would be left behind when moved was really not testimony about forensic anthropology, it was testimony having to do with forensic  psychology, in which she has no more expertise (probably less) than anybody else in the courtroom.

Another forensic anthropologist, Dr. Scott Fairgrieve (a defense expert) testified that in his experience (not theory) when bones were moved after being burned, the location where the majority of the bones were found was the location to which they had been moved, not the location of the original burn. This seems more plausible to me; however, I have to point out that Fairgrieve was apparently hired by the defense. 

I have wracked my brain, and have no reasonable explanation why somebody would have taken a small portion of the bones from Steven Avery's burn pit and transported them to the quarry site. I therefore consider that implausible. I'm open to discussing this, obviously, but why would the bones have been moved? There are certainly several reasons, but high on the list would be to implicate another person in the murder.


Another head-shaking moment for me was that the Avery burn-pit itself was not 'gridded.' Gridding is essentially a survey taken of the actual crime evidence location. Everything is photographed and mapped, identifying the location of every single item in that area in relation to every single other item. For instance, if leg bone fragments were found inside skull bones, it would be prima facie evidence that the bones had been moved somehow post-burning, or that the bones were simply dropped at the site in a pile. Gridding of a site where a body was burned should show (within certain parameters) bones in normal relationship to each other, with deviations for the affects of heat.

Gridding could have been powerful evidence and likely proven whether the Avery burn pit was the primary burn site or not. However, because Manitowoc and Calumet SO's did such a poor job of managing the scene, this crucial evidence was lost. The frustration of Wisconsin State Crime Lab forensic scientist John Ertl was palpable as he testified to the lack of proper procedure used by the deputies. Due to the destruction of the crime scene, the ability of the state lab to assist was drastically reduced. 
One thing we know for sure: The bones of Teresa Halbach were moved. That is not in dispute. For Avery to have burned Teresa's body the night of the bonfire, he would have had to do so knowing that people might have shown up. The body would have to have been consumed dramatically quickly. The other possibility is that Avery burned the body at the quarry, then returned the remaining bones to his burn pit, which makes no sense at all.

I think that the evidence points strongly to the scenario of Teresa's body being burned at the quarry, then the remains transferred to Avery's pit in BB2. Additionally, Avery had an incinerator which would have made quick work of the body, negating his need to burn it in the open.
More evidence that Teresa's body was likely not burned behind Stephen Avery's house is the strong evidence that she was transported from the murder scene, wherever that was, in her own vehicle. It seems obvious at this point that she was not killed at the Avery trailer or garage. Why then, would Avery bring her back to his house to burn her body?  Then, take only a few of the bones and put them in the quarry burn site. It makes no sense. 
If the prosecutor believes that Stephen Avery killed Teresa Halbach in his trailer or his garage, and then piled her body in to the RAV4 to drive her 20 feet to the bonfire, Mr. Kratz has been overmedicating himself.

  • Scott Tadych had access to BB2
  • Tadych and his girlfriend's son Bobby Dassey (who live in the same house) go hunting at the same time on the same day, and don't go together?
  • Tadych and Bobby Dassey are each others' alibi witnesses?
  • Start looking at Scott Tadych.
Ultimately, I now think that while Steven Avery remains a suspect, I wouldn't put him at or near the top of my list. I still want to know how Ryan Hillegas was able to hack into Teresa Halbach's voicemail. It smacks of an obsessed boyfriend who could not let go of a girlfriend who broke up with him. What better way for a stalker to monitor his victim then to be able to see who's calling her and listen to every voicemail left for her? That would be 'stalker gold.'
Another suspect high on the list (besides Hillegas or Bloedorn) is the person who was obsessively calling Halbach. Obviously, the film-makers are holding that information for a more dramatic reveal. I wonder if it's Hillegas.

And now, finally, I have to add two names to the list of potential suspects: Scott Tadych and Bobby Dassey. I'm not accusing them, but neither am I sure that either one were properly investigated by either Manitowoc or Calumet County Sheriff's Offices. Frankly, I'm beginning to think that nobody was properly investigated in this case.
<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 6, Part 2 of 3]]>Fri, 11 Mar 2016 07:11:07 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-6-part-2-of-3EPISODE 6:



Now we come to the mysterious bullet found in Avery’s garage. There are so many uncertainties about the bullet that I really don’t know if it puts us nearer or farther away from Avery. The devil, as always, is in the details. I simply must have more information about the slug before I can form an independent opinion. However, lack of that detailed information doesn’t keep me from some parameters by which we should judge the evidence, and may give some insight to those of you who are familiar with the ballistics and physical evidence reports that may or may not be 'out there.'
Was the bullet ‘planted’? Well, Buting and Strang very appropriately question why, during five search entries during the week of November 4, the bullet was never discovered. I think that's an excellent question. However, the failure to find the bullet is not prima facie evidence that the slug was planted. Searchers are not infallible. There are other possible reasons that the bullet would not have been found in the earlier searches, and one main possibility revolves around what searchers were looking for in the earlier entries.


​I have been on searches where agents were searching for large items and therefore didn’t look in places where that large thing wouldn’t fit. For instance, if I was looking for a minivan, I might not look inside a closet. Warrants are specific for what is being sought. If my warrant was an authorization to search for a rifle, I likely wouldn’t look in a shoe box, and if I did and found illegal drugs, that part of the search might be thrown out for going "outside the scope" of the search warrant.

Therefore, based on “what were they looking for” in the earlier searches, then it’s possible for an item to go undetected. I mean, if they were looking for Teresa’s body, and the body wouldn’t fit under the compressor, why look there? (Except that under the plain sight doctrine, anything that is out 'in plain sight' is legitimately 'in-play.') The determining factor, then, would be what items were listed in the November search warrant as objects of the search. If the search listed anything as small (or that could be as small) as a bullet, then there is no logical reason the bullet wasn't found.

At a potential murder scene, you wouldn’t know what you were looking for. Frankly, you might be looking for a spot of blood the size of a pinhead. I find it difficult to understand that if they searched for eight days and collected more than 950 items, that they didn’t go through the garage with a fine-toothed comb. In fact, at the time of the March entry when the bullet was found, there appeared to be chalk outlines already on the garage floor. This indicates a search for physical evidence on the floor, not just a body. And the physical evidence for which they searched, as I said, could be the size of a pinhead. I have trouble understanding how they could miss the bullet. But I cannot say with authority that it is impossible that they did. Nothing about their procedures indicates to me that they were particularly well-versed in the subtleties and demands of crime-scene searches. Ultimately, as an investigator, I would want to know why the bullet was not found in the earlier searches, and I’d like to get a reasonable answer.
That said, regardless of how long “the bullet” had been under the compressor, I have some serious issues with the slug itself.

​I remind you all that I don't know what caliber the bullet is, at least from the documentary. That information is crucial in evaluating its importance. However, from the ruler in the photo, it appears that the bullet is likely a .22 to .25 caliber bullet. I suspect that it's a .22, because it's ubiquitous, and the .25 is usually used only in semi-automatic pistols that are rarely found in rural farm communities. Either way, both fire extremely small bullets--in fact, they are very close to the smallest projectile classified as a 'bullet.' To put it in perspective, the diameter of the .22 is only 43/1,000ths of an inch wider than the projectiles fired from kids' pellet guns.

​The discussion is going to be a little technical now, so to ensure we're all on the same page here, lets look at some terms of art. A cartridge or "round" is the entire unit most people colloquially refer to as a “bullet.” In reality, the 'bullet' is only one part of the object. The cartridge consists of a casing [2], usually made out of brass, a primer [5] in the center of the rim of the casing [4], and propellant [3], usually smokeless powder, inside the casing, all of it topped with a bullet or "slug" [1], which is pressed into the neck of the casing. So the term ‘bullet,’ in reality, only refers to the part of the ‘round’ which leaves the gun. The casing is what remains with the gun or in the area of the gun.

What was found under the compressor in Steven Avery's garage was the bullet [1], in the diagram above. Once a bullet has been fired, the empty casing will remain in, or within the immediate vicinity of the gun, and it would likely be possible to determine which casing matched the fired bullet, if the slug was found. 
Picture.22LR bullets "mushroomed"

​The problem I have with the retrieved bullet has to do with several issues, and I’ll try to explain them without getting too graphic. I am (or at least was) a trained sniper. I have been educated about the physics of a bullet striking the head. The head will stop a bullet as well or better than any other part of the body.  Why? B
ecause the skull -- especially the side -- is a pretty stout section of bone, designed to protect the brain.

​A bullet slows rapidly when it hits thick bone, and slows almost as rapidly when it hits a fluid-like substance—say, a brain. When the bullet hits the soft tissue, most are designed (especially hollow-point bullets) to "mushroom," which increases their diameter, creates a wider wound channel, and transfers more kinetic energy into the target. The more a bullet mushrooms, the less likely it is to exit the body. This 'mushrooming' is facilitated in part by the extremely soft lead used in many bullets.

Picture(L-R) .308 Sniper cartridge, 9mm pistol cartridge, .22LR cartridge.
Snipers fire high-powered rifle caliber rounds (frequently .308 caliber) weighing about 10.5 grams, which travel at approximately 2,700 feet per second (1,840 mph). These rounds, when they impact the skull, usually travel through the head fairly easily. But the bullet in the .22 “Long Rifle” or ‘LR’ cartridge (which I’m estimating may be the caliber of the bullet in the photo in Avery’s garage), weighs only about 2.5 grams (1/4 of the .308 sniper bullet) and travels at about 1,400 fps, or 975 mph (about half the speed of a .308.)
The .22LR, therefore does not, except in the most unusual circumstances, exit the skull after it is fired into the head. It  lacks the mass or velocity to punch through the second wall of bone. It is my opinion that if Teresa Halbach was killed with a .22LR bullet to the head -- even at point-blank range -- the bullet never exited her skull. So why, then, would it be on Avery’s garage floor? And why, then, does it even still exist? It should have been destroyed in the fire.

For a fire to have been hot enough to destroy Teresa's body the way it did, the temperature of the fire would have been had to of been over 1000°, probably closer to 1500°. Lead, which makes up the vast majority of .22LR bullets, melts at 621°. You see what I'm getting at here? If it was a .22, the bullet stayed in the skull. If the body was burned, the bullet melted. Period.
Could she have been killed by a larger caliber bullet that actually excited the skull? Certainly. But the bullet the prosecution claims bears Halbach's DNA is a .22, which poses a real problem for me.

What, you ask, if for some odd reason the .22 exited her skull? If the bullet which killed Teresa Halbach (if indeed a bullet ended her life), exited her skull, it would do so at a relatively high rate of speed. It would not have come out of her head and fallen onto the ground a few inches from her. It would've continued until it impacted something solid and then fell or ricocheted. 
When bullets hit solid objects, they either fragment or carry the marks of the impact with them. Therefore, examination of this bullet is crucial. It's not just whether Teresa's DNA is on it; the actual physical characteristics of the recovered bullet might provide valuable information. 

I tried to imagine a scenario where Teresa, in the garage, was killed with a .22 rifle bullet to the head, which then exited her head (highly unlikely) and resulted in the bullet remaining in the garage (in this case, under the compressor.) The problem I continued to run up against is that there is no patent or latent blood in the garage, so I cannot explain how she could have been killed in the garage. If she was not shot in that garage, the killer (or someone else) would have had to have come upon the spent bullet after the murder, kept it, and discarded it on the floor of the Avery garage. Not something Steven Avery was likely to do. Why take the time to burn her body, then drop a bullet with her DNA on it on the floor of your garage? Another thought I had was that she might have been shot somewhere outside the garage when the the garage door happened to be open. Then, against all odds, the bullet ended its flight in Avery's garage. I find those scenario far-fetched.

​Neither can I divorce the immaculate discovery of the bullet, from Fassbender's statement to the Sherry Culhane, the DNA Technical Unit Leader, “Try to put her in his house or garage."  This is simply mind-boggling to me. In discussing cases with lab experts, I have made statements along the lines of, "I can't put this person at the crime scene," or "I hope this gives me evidence that the suspect was at the crime scene." But never, never once, have I ever asked, wanted or expected the lab expert to "help" me in my case. Never would I expect them to even think that's what I wanted.

"Try to.." is an instruction, an action; not a hope, an observation or discussion of a case.  How do you "try to" put Teresa Halbach in the garage? Theoretically, a DNA technician can only prepare a sample and interpret the results. So how can she "try to" do anything with it? It indicates that there are ways of making something happen. So, in that statement, both Fassbender and Culhane implicitly indicated that there was a way to influence the results. If one improperly influenced the results, then the one thing that couldn't be allowed to exist would be extra DNA material -- because that would give the defense the opportunity to disprove the findings.  Conveniently, all of the DNA sample was consumed. I also find it very strange that (as far as I know) the very first time Culhane ever contaminated a sample with her own DNA was during this very test. Usually, mistakes of all kinds are made when regular procedures are not followed.

The subsequent finding of the victim's DNA on a bullet;  a bullet which, by my logic shouldn't even exist, four months after an extensive search of the crime scene didn't turn it up, combined with the improper conversation between Fassbender and Culhane, creates (at least for me) a significant appearance of wrongdoing. It's not as if I haven't seen this before.

I remember the horrible experience of Raffaele Sollecito, the Italian man accused with Amanda Knox of the murder of Meredith Kercher. The Italian authorities were desperate to "put him in the murder room." Yet there was no evidence of him there. So what happened? Six weeks after the extensive first search, the police went back and "found" the victim's bra clasp, and guess what? It was determined to have Raffaele's DNA on it. The defense, of course, wanted to be present at testing, but were denied. They then wanted to retest the DNA, but the prosecutors claimed that the DNA was completely consumed in testing. Before they were exonerated, Raffaele and Amanda each spent four years in prison for a crime they did not commit. Does this give anybody else a feeling of Deja vu?


Fassbender, on the stand, testified that deputies found shell casings that matched up to a rifle in the house. That might seem significant. However, unless that rifle was the same caliber as the bullet found in the garage, and testing proves that it was the rifle that fired the bullet, the statement is pretty much worthless. The mere existence of shell casings without a link to a body means nothing, and the fact there were shell casings "all around the property," leads me to believe that the Avery property is located in rural Wisconsin. The .22LR cartridge is what is known as a "varmint" round, used to shoot pests such as squirrels, gophers and small game.

Kratz went to great lengths to portray insignificant items as suspicious evidence. For instance, Halbach's phone number was written on a note pad on Avery's computer table. What does that evidence tell us? It tells us that Avery had business with Halbach. We already knew that. Several other people in the same town had business with Teresa that day. Likely they had her phone number written somewhere too. Importantly, though, it also tells us that Avery did not have Halbach's number memorized. This is important, because somebody who was stalking Teresa would likely have the number memorized.

The most critical takeaway from the searches, was that after four months of investigation, not a single person was able to find one shred of evidence that Teresa Halbach was ever in Steven Avery's house or his garage. 
The most significant thing about the searches is what they didn't find.

So where is the murder scene? When reporters asked Ken Kratz why he had not brought up the murder scene in trial, I was absolutely dumbstruck at his answer. He said that he was going to explain all that "...in closing arguments." Whiskey tango foxtrot? Closing arguments do not introduce new evidence, and are not evidence in and of themselves. A closing argument can only refer to evidence that has already been placed into the trial. What Kratz was admitting was that he had not a single shred of evidence to prove where the murder was carried out. But apparently that wasn't going to keep him from telling the jury where it was, without evidence of any kind. To put forward a theory of how the crime could have happened, without providing evidence for the conclusion(s) is appalling.  If the judge allowed that, well... I have no words...

Where does this leave us? Kratz doesn't know where the murder occurred, he probably suspects that using Brendan Dassey as a prosecution witness would be disastrous, and continues to try to make a criminal case against a defendant without the use of reliable or convincing evidence--and has no explanation for why the evidence was not found. But I can tell you one thing the evidence proves to me; regardless of who killed Teresa Halbach (even if it turns out it was Steven Avery), she was not killed in Avery's garage or trailer. 

(Pt. 3 of 3, Sunday: "Three burn sites??")

<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 6, Part 1 of 3]]>Wed, 09 Mar 2016 08:54:03 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-6-part-1-of-3EPISODE 6:


The needle has moved! Evidence presented in Episode 6 has changed my concept of the crime, if not the sheriff’s office investigation of it.
INVESTIGATOR’S NOTES: (Some or all of you probably already have the answers to these)

  • Dust on the Oldsmobile in the garage is months old. Was it even moved in November?
  • Prints on the Oldsmobile? What are the marks in the dust? Photos of the marks?
  • 6:25 PM entry; circles already on the floor in garage. Why?
  • Remiker found the bullet. Isn't that convenient?
  • Lenk wasn't properly logged into the search log. No way to know when he really arrived—could have been there for hours. Log is invalid.
  • Check all search photos and video for time-stamped evidence of Lenk at the search scene to determine arrival time.
  • Why was Lenk there?
  • Why is bullet on the floor? How many murder bullets are found (bloodless) on the floor of a garage?
  • Caliber of the bullet? Condition? Pistol? Rifle?
  • Couldn't the lab give us parameters of high and low calibers which could have caused the wound? Doesn’t seem unreasonable.

Episode 6 began with a somewhat pathetic (and in some ways disturbing) display by Calumet County District Attorney Ken Kratz. The D.A. sat next to Calumet County Sheriff Jerry Pagel at a hastily-called press conference and provided an unusually and unnecessarily detailed version of the killing of Teresa Halbach. I am at a complete loss as to why either Pagel or Kratz felt that press conference was appropriate or necessary. I have never seen anything like it during my tenure in law enforcement. I have been involved with the investigation of horrendous, disturbing and bloody crimes where publicity was essential to finding the killers before they struck again. Even then, descriptions of the crimes or the crime scenes were not necessary. When you have your suspect in custody, there is even less of a need for such exposure. Frankly, at times, I wondered if Kratz found the details personally salacious.
Because of Kratz’ incomprehensible decision to expose his case file like an exhibitionist in a trench coat, family and friends of Teresa Halbach were subjected to a horrific (though fictional) description of her death. “Stabbed in the stomach with a butcher knife….throat slit….still begging for her life…..not dying…” are gut-wrenching, heartbreaking mental images I doubt her loved ones will ever forget.
And why did they have to endure this? Why was this unverified, unsupported lie trotted out to the public before the first attempts to corroborate it were launched? If Kratz and Pagel had been willing to wait just a few days, the apocryphal ‘confession’ of Brendan Dassey would have been proven false. There was no hurry. In their minds, there was no threat to the public, they had their suspect, Steven Avery in custody. There was no reason, legally, forensically, or morally, not to wait until the outlandish fantasy dragged out of Brendan Dassey was tested. They didn’t even wait 24 hours.

Let’s review why Brendan’s confession was demonstrably false:

  • Blood evidence required to be in the Avery trailer: If Teresa Halbach was stabbed in the stomach, her throat cut, and shot in the head, that room would have been awash in her blood. The gunshot and the throat wound would have resulted in low-, medium- and high-velocity blood spatter all over the room. This could not be hidden from forensic investigation. Even if extensively cleaned up, it would leave unmistakable (and easy to find) latent blood patterns on the walls and furniture. The mattress and sheets would be soggy with the victim’s blood. It could not be cleaned out of the mattress foam and batting.

  • Physical damage to the bed required for the story to be true: The victim was allegedly shackled and tied to the wooden bed frame. But no evidence of any defects in the frame consistent with the shackles and/or ropes is alleged. Even if Teresa was simply confined in the trailer for several minutes, she would undoubtedly have attempted to escape and in doing so been restrained by Avery/Dassey, which would have left physical traces of her behind.

  • Blood evidence required to be in the garage: If shot in the garage, or even dragged into the garage, the victim’s blood would be everywhere. What didn’t soak into the concrete floor would have flowed into the deep cracks in the concrete where Avery could not have cleaned it.
But what do we find? No blood on the walls of the trailer. No blood in the carpet in the trailer. No allegation of blood on the mattress or the sheets. No blood in the garage, even though a spent “murder bullet” is found.” Teresa Halbach was not killed in the Avery trailer or garage. There is no other option. So had Kratz and Pagel waited, or had they even talked to anybody who had been at the crime scene, they would have realized the ridiculous nature of Dassey’s story before they subjected a grieving family to unnecessary pain.
So what motivated Pagel and Kratz to hold the presser when they did? I hope I am wrong, but there is a logical, though unpleasant explanation: They knew from the November searches that Dassey’s story was, at best, extremely unlikely. But until specific tests had been conducted to corroborate the version of events Fassbender had elicited, no lab testing existed to rule out the story. Therefore, they had to publicize the confession before the lab reports came back proving the ‘confession’ spurious. Until that time, they had ‘cover’ to publicize the details of the story. But why did they need to do so?
One reason is likely self-promotion on Kratz’ part. District Attorney is a political position and most DA’s have political ambitions. So, publicity is good. And losing a huge case like the Halbach murder would be a career ender. And how do you help guarantee a conviction? Poisoning the jury pool. That press conference ensured that every single potential juror in Manitowoc or Calumet County would not only believe that Steven Avery was a butcher, but know the salacious alleged details of the crime. The press conference was so wrong on so many levels, but it was so characteristic of Ken Kratz.

If anyone doubts Kratz’ motives in holding the presser, think about this dichotomy: Kratz spends an entire press conference giving a too-detailed, ‘R-rated’ version of the death of Teresa Halbach, and when asked by the press whether there was any DNA backing up the Dassey story, he says, “We’re not going to comment on that.” Why? Was the DNA too horrible to speak of? Would it violate the privacy of the victim’s family? It immediately made me think of the scene in the movie “Airplane!” when Ted Striker is letting his girlfriend Elaine know he’s leaving on a mission.
Striker: My orders came through. My squadron ships out tomorrow. We're bombing the storage depots at Daiquiri at 1800 hrs. We’re coming in from the north, below the radar."
Elaine: “When will you be back?"
Striker: "I can't tell you that. It's classified."
The reason Kratz would talk about the details of Teresa begging for her life before being raped, but not answer a question on DNA is because he knew he had no DNA evidence. Period. And as attorney Dean Strang so correctly noted, poisoning the jury pool with Dassey’s alleged confession, and then not calling him to testify was a brilliant move because it got the statement “in,” but made it impossible to cross-examine Dassey on the ‘confession. Innuendo and false testimony is not how jury trials are supposed to work. At least not since the late 1600’s in Salem, Massachusetts.
The fact that Judge Willis wouldn't even give a jury instruction regarding Dassey’s ‘confession’ in light of the March 2nd presser, makes me wonder how anybody could get a fair trial in those counties as long as Kratz is prosecuting and Willis is on the bench.


Another very subtle problem that the prosecution's theory of the crime poses to the defense is that the body of the victim is not available now to compare for knife or bullet wounds. This means that any bullet of any type and size, whether from a rifle or pistol of any caliber, could be considered the murder weapon. In that part of Wisconsin, hunting is a passion. How many homes don't have a gun in them? Steven Avery’s certainly did. How many homes anywhere don’t have knives in them? The problem with this is that Kratz (who I am now convinced is bound by neither honor nor decency) can now hold up any gun or knife in the possession of Steven Avery and claim that it was the murder weapon. Without wounds to compare it to, it could not be disputed in conclusive terms.

Many different logs are kept during the execution of a search warrant. One of the most important of which records the identity of all those who enter the crime scene, and when they do so. It also records when they leave the scene. Usually, one officer/deputy is given the duty of maintaining the crime scene log. Almost always it is the newest officer, or the one who has most recently pissed off the watch commander.
At the March search of Avery’s property, the handwriting on the sheet indicates that a single person kept the personnel log at the search site. There are two things about this log that are noteworthy to me. First, it is very rare that the sheriff of the county will actually come to a search. Searches happen all the time, and sheriffs generally are not at the scene. Frankly, non-investigative, high-ranking personnel only come to a search scene when there are news cameras, or major evidence is found—or both. We see Sheriff Pagel arrived at 5:38 PM, before anything significant is found. Next entry to the log is at 5:40 PM for Wendy Baldwin and Gary Steier of Calumet County SO, then at 6:08 PM, Dolores Avery, somebody obviously not part of the search team, failed to stop at the perimeter, likely not realizing what was going on. That the officer managing the log was dutiful enough to log this shows that the log was being taken seriously. The last legitimate entry in the log is at 6:12 PM, when Deputy Inspector Schetter of MCSO arrived.
The 6:10 log entry for Lt. Lenk is obviously added sometime after 6:12 PM. The fact that it was entered out of order calls into question the truthfulness of the entry. How do people get into crime scenes and search sites without logging in? Sometimes, they arrive at an area which is not an authorized entry point and duck under the tape. They then have to find the person handling the personnel log. If they are distracted for a while, they might not get their time entered correctly. However, unless they have participated in a recorded part of the search, many investigators just go to the log-holder and announce themselves. The log-holder will enter them in at the time they announced themselves. If they haven’t participated in any part of the search, it’s usually not thought to be a big deal. The fact that Lenk needed to have himself logged in at a certain time makes me wonder why the 6:10 time was so important.
What’s troublesome is that only one person seemed not to log-in correctly—at least on this page. The sequential nature of the log, however, is there for a reason. To keep out-of-order log entries from occurring. To keep that from happening, in fact, forms are used which have boxes in which each investigator’s entry is logged. The boxes keep post-arrival log-ins from occurring. In this case, Calumet County was apparently using a sheet of printer paper. Because Lenk did not sign in sequentially, there is no reason to believe that Lenk arrived at 6:10 PM, and much reason to believe he did not. It is too coincidental that he was logged-in exactly half-way between the two entries that bracketed his.

​Lenk, as inferred by the last scene in Episode 6, has some explaining to do.

My takeaway for me from this installment is that Kratz and possibly some deputies on Manitowoc and Calumet County Sheriff's Offices are suffering from the 'victory at any cost' syndrome. It doesn't happen just in the justice system. Maria Sharapova proved that this week. Sports is a great analogy to what we're seeing in Manitowoc and Calumet Counties. People remember Lance Armstrong now, not for winning the Tour de France, but for falling to the 'victory at any cost' syndrome. In any endeavor, a small minority of participants are willing to do anything to win. The majority are not so willing. The achievements of greats like Willy Mays are sometimes forgotten, though, when other heroes are caught using steroids.

As a member of the law enforcement family, I feel acute pain whenever I see a law enforcement officer fall victim to the belief that it's okay to cheat the system, "as long as I know he's guilty." But I take comfort in the fact that in law enforcement, like in professional sports, the vast majority play by the rules, and those who violate the trust people put in them are prominent because of their relatively small number. I find encouragement in the knowledge that for every Barry Bonds out there, there's ten Willy Mays'.

(On Friday, I'll be discussing "the bullet," which may not be "the" bullet.)

<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 5, Part 3 of 3]]>Sat, 05 Mar 2016 09:23:10 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-5-part-3-of-3EPISODE 5



The testimony of Bobby Dassey was largely unremarkable until the statement undoubtedly coached by Kratz rocked the courtroom.

Dassey had testified that at 2:30 in the afternoon, a vehicle arrived and "someone" began taking photographs of the red van. He testified just seconds later that he saw that person, who he then identified as  Teresa Halbach, walking toward Avery's trailer. Here's my problem: If he knew what Teresa Halbach looked like, why didn't he say he saw Teresa Halbach snapping photos? Bobby Dassey isn't courtroom-savvy enough to refer to the person taking the photographs as a "someone." He was coached. By whom? Kratz.

It is not unusual for witnesses to be coached before testimony. Prosecution witnesses are coached by prosecutors, and defense witnesses are coached by defense attorneys. I've been through the coaching. At no time have I ever been told what to say, but I have been given "better ways" of expressing the same thing. Bobby Dassey was, to my mind, extensively coached on what he would say, not just how he would say it.

When Bobby essentially accused Avery of trying to get help 'burying a body,' all hell broke loose in court. But when he uttered the words, the one person in the courtroom who did not seem surprised was Ken Kratz; likely because he knew it was coming. In fact, it couldn't have caught him by surprise because he asked 
Dassey about a statement Avery had made about "a body."

Bobby Dassey proceeded to tell a story of Steven Avery apparently attempting to engage the assistance of Dassey and one of his friends in burying a body. However, Dassey omits the most crucial details of the story; that the statement was apparently made in jest. This was a detail that Kratz likely coached him to omit. Dassey couches the discussion intentionally out of context and inferred that the request was serious.  I cannot express in this small an article how unethical, morally wrong and manipulative this Kratz-created testimony was.
The prosecution immediately--and correctly--objected to the testimony and moved for mistrial. In my opinion, that request would have been granted in 90% of the courtrooms in America. But not in the courtroom of Patrick Willis.

Remember in my last installment when I said that each side must have an even playing field and no surprises? It's to avoid exactly this type of misleading crap. Besides the fact that the statement was designed to mislead the jury and therefore undermine the judicial process, Kratz knew he was about to violate established judicial procedure. What Dassey said had never been given to the prosecution, and was therefore inadmissible.  Do not think the Kratz didn't grasp this well-known doctrine of legal proceedings any more than Pete Rose didn't know that gambling was against the rules of Major League Baseball. Kratz' misconduct was, in my opinion, intentional.
What Kratz did was have Dassey say something in front of the jury, which Kratz reasonably should have known would be disallowed. However, he knew that by making a statement in front of the jury, they could not forget this any more than a bell can be unrung. 
It turns out that the statement Avery allegedly made was a joking response to a smart-ass comment  from one of Dassey's friends. The friend, noting that Avery was a suspect in Halbach's disappearance, asked (in jest) whether Avery had the girl "in his closet." To which Avery replied, "Yeah, you want to help me get rid of the body?" Neither Dassey nor his friend went to the police with that alleged admission. Neither thought it significant. Both thought it was a joke. But that context was not provided to the court. As theologian D.A. Carson is famous for saying; "Text without context is pretext."

What's doubly ridiculous here is that the prosecution knew at the time that the body of Halbach was not buried and likely had been burned by the time the Avery statement was made. Therefore, trying to get assistance to bury a body contradicted their theory of the case. 

Again, when people ask, "how do injustices and wrongful convictions occur?" I point to actions like this, and judges that allow prosecutors or defense attorneys to get away with them. If this had occurred in front of a U.S. federal judge, a mistrial would almost certainly have been declared, and Kratz reported to the bar for malfeasance, if the judge didn't mete out his own very real punishment right in the courtroom. But in this courtroom of Judge Patrick Willis, not only was a mistrial not declared, but the statement by Dassey was not even struck. I suspect Kratz knew Willis wouldn't sanction him. I was left slack-jawed. All judges are not created equal. Some are over-matched by their task.
The press, however, was not as easily bamboozled as was Judge Willis. They literally clamored for an explanation for Kratz' reckless actions in a post-session press conference. Kratz'
 account of the testimony leaves little doubt as to the insidious calculation he made. He said that he first heard the allegation from Dassey during preparation for the trial.  

This reminds me of the time inveterate bank robber Willie Sutton was asked why he robbed banks. "Because that's where the money is," was his alleged answer. Didn't really absolve him of anything. Kratz' explanation that Dassey told him in pretrial preparation is just as ridiculous an excuse. 

As I said, attorneys frequently conduct pre-trial mock-testimony to help the witness testify and to avoid problems. They know, for instance, if the witness says something in court beyond what he or she's told police or their attorneys at that point, that he or she, the prosecutor, or the defense attorney(s) could be liable for statements such as Bobby Dassey made in that courtroom.
If it is true that Bobby Dassey came up with that ridiculous statement all on his own during pretrial preparation, Kratz' legal responsibility wasn't ambiguous. He was required to notify the judge of the statement, have the police record Dassey's new statement, then notify the defense attorneys, so they could evaluate the statement and determine their response. The judge would then give the defense a certain amount of time to prepare for the portion of trial that included that statement. 

Kratz is either lacks the competence to serve as a prosecutor or attorney, or he intentionally ignored the law in order to prejudice a jury with a statement he knew was a lie.


The fact that Judge Willis neither declared a mistrial, nor even required Dassey's statement to be stricken indicates to me either incompetence or a startling bias in favor of the prosecution. The judge in any courtroom is the last line of honesty and propriety in a court. He's like the referee on a football field, or an umpire on the baseball diamond. Officials keep the game from being futile exercise by holding both sides to the same rules. Absent officials, games would be pointless, because the contests would devolve into tests of who cheated the best. 

Judge Willis didn't allow it to get that bad in his courtroom. He made sure only one side cheated.


I'm trying something new out with this article. You've seen those small investigative notebooks every detective since Joe Friday carried. I carried one. They are not (usually) evidentiary in nature. They contain hunches, observations, feelings, and leads that the investigator believes need to be followed. In short, very few conclusions are reflected in the notebook and approximately 90% of the entries will be opinion or raw thoughts. 

After Episode 5 I realized I was falling into my same old 'investigators notebook' habit. I think it would be valuable to share some of my notes with you. Not because the notes are evidence, proof of anything, or even correct assumptions. That's the point; investigator's notebooks are brainstorming, initial opinions, and thoughts about what you want to know, not what you do know. And they can show you how an investigator thinks and reasons, and how his/her thoughts change as the investigation progresses. I'll include these notes from time to time in the articles so you can see what I was thinking as I watched the episode.

Notebook, Episode 5:

  • Hillegas guesses Hallbach's password? Really?
  • Guy who remembers girlfriend's phone password several years after breaking up is obsessed with her. Stalker?
  • Who was with Hillegas when he guessed the password?
  • Why didn't Bloedorn report Halbach missing after three days?
  • Who made harassing calls to T.H.?
  • Halbach has to have girlfriends who would know whether she was in a romantic relationship with anybody. Who was she dating? Interview her girlfriends.
  • Get profiles on--
    • Hillegas
    • Bloedorn
  • Get Colburn cell records November 2, 3, 4
  • Find Colburn location during 10–28 call (cell towers)
  • Get Colburn radio recordings and control log
  • Wiegert alibi the night Colburn called 10–28?
  • What proof of T.H. bones being moved?
  • Where did each volunteer searcher search? What guidance was given to the women in the junkyard search by Hillegas and/or Bloedorn
  • Hillegas/Bloedorn alibi for October 31?


Many of you are sure I'm going to come down on the side of Avery's innocence. Let me assure you that while at this point I see some terrible investigation, embarrassing judicial decisions and horrendous prosecutorial behavior, I have still not seen anything at all in the documentary which proves Steven Avery either guilty or innocent. Keep in mind that my assumption going in is that he is innocent until proven guilty. I just haven't seen that proof yet.

Note this; a documentary alone won't convince me-evidence will. I suspect most of you believe Avery is innocent and believe that the evidence I will soon see will convince me of this fact. Maybe or maybe not. While  I have no desire to have most of you readers think I'm wrong and even (it would happen) attack me, but I'm not afraid of taking an unpopular position if I believe it's the correct position. Ask those who disagree with my conclusions on the Amanda Knox case. I've been the target of vicious internet trolls since 2010. But in the end, Amanda is home, exonerated and free. 


All other things equal, to me, Hillegas or Bloedorn are more likely suspects than Avery. But the evidence I have at this point makes me more suspicious of Avery than Hillegas or Bloedorn. I also chafe at the statement "Avery had not motive to kill Halbach." That's not true. If Avery killed Halbach, he had the same motive as tens of thousands of other sex-killers; the desire for power, control over women and a deviate sexual drive. That's one of the most common criminal motives that exist.

Still, as my notes above point out, I feel that no adequate investigation of Hillegas and Bloedorn has been conducted (as far as I know.) So if I see contact between Hillegas and Halbach after 2:41 pm on October 31, all bets are off. 

If I find out that either of those are the mysterious harassing phone-caller, then hold on.

<![CDATA["Making a Murderer," An FBI Agent's Take      Episode 5, Part 2 of 3]]>Sat, 05 Mar 2016 06:51:33 GMThttp://gmancasefile.com/moore-to-the-story/making-a-murderer-an-fbi-agents-take-episode-5-part-2-of-3EPISODE 5:


My biggest takeaway so far in Episode 5? The testimony of Ryan Hillegas and the manner in which he gave it, raises significant questions in my mind about his involvement in this case.
First and foremost, Hillegas admits to hacking into Teresa's cellphone records (and likely her voicemail) by "guessing" her password. This claim is astounding and troubling. Guessing a password? How often does that really happen? Maybe I wouldn't be so bothered if he had a reasonable explanation of how he came to guess it. But when asked what the password was and how he came to decipher it, he couldn't remember either. He stumbled over something having to do with Halbach's sister. I would postulate that if Hillegas had been clever enough to to guess Teresa's password at a time of great need, and so quickly, he would be a minor hero, and certainly would have remembered how he accomplished it, and maybe the password itself. I think there might have even been a little bit of pride in him about the accomplishment. Instead, in court, he dismissed this Rubik's Cube achievement as an everyday thing.

To me, guessing a person's phone password--in such a timely manner, (absent some reasonable explanation) is highly suspicious. I do not believe that Hillegas has adequately explained how he divined Teresa's password. I may not believe that Hillegas guessed Teresa's password, but I do believe that he had access to Teresa's phone account. 

Interestingly, when asked if he had seen Teresa on the weekend of October 29 and 30th, he said, with apparently intentional vagueness,

​"I didn't talk to her on Saturday, I don't think so."

That wasn't the full question. When he said that, he knew with certainty that he had seen Teresa. He didn't say "I saw her Sunday," or "Just Sunday," or "Not on Saturday, but Sunday." His failure to mention Sunday was intentional. He  wasn't cut off by a defense question. No, I believe that he was hoping that the fact that he would not be asked if he was with Teresa on Sunday. When forced to admit the Sunday visit, he said that the reason he was there, was to drop "something" off for Scott. Surprisingly vague. It is amazing how when Hillegas was being questioned by the prosecutor, Ken Kratz, his answers were clear, immediate, and detailed. When he was answering Kratz' questions, he spoke with ease, was comfortable, and even smiled. He made eye contact constantly.

But when he began to answer the defense's questions, he became forgetful, vague and his answers became brief and cryptic. His physical demeanor also starkly changed. Some might say that being questioned by the defense is stressful for a prosecution witness. I get that. But I have observed that when a person is on the witness stand, they frequently begin uncomfortable, but get more and more comfortable as they get used to their situation. In this case, however, Hillegas appeared to get more nervous the longer he remained on the witness stand. 

For example: When asked about the password, Hillegas began looking away before he answered. His answers evolved rapidly from detailed explanations to equivocal conjecture. His lips seemed pursed to the point that they were losing color at times. His cheekbones and ears became red. He shrugged his shoulders and looked away repeatedly, and his nostrils flared, indicating his breathing had increased, though his mouth was closed. It appeared that he was attempting to camouflage the fact that he was breathing harder. None of this, however, is admissible.

He admitted that he had never been asked by the police about his alibi, but then surprisingly, didn't offer one to the court. Nor, apparently, did the prosecutor ask about his alibi (as far as I can tell based on my limited exposure.)

Hillegas also said that he was not treated as a suspect by the sheriff's department, which was evidenced by the department(s) allowing him to pass police lines, and therefore possibly, enter crime scenes. If he is a potential suspect, why would they let him inside the crime scene? That is incomprehensible. Then, it turns out that the police also allowed Hillegas and Bloedorn to lead and coordinate the citizens search around the area. This impacts so many aspects of the case it's hard to list them all. If allowed into a crime scene, or to search for "evidence," an actual killer would have the opportunity to remove, plant or manipulate evidence. It would also give the killer insight into what investigators were doing, and nullify any chance of using unique "culpable knowledge" of the crime as evidence.

In a real investigation, Hillegas and Bloedorn would still have been prime suspects. Yet the sheriff's department was willing to let them search for "evidence?" Allow them into police-only areas? Incredible.

Where does the search start? At the Avery auto recycling yard. What a coincidence! They sent Pam and Nicole Sturm (cousins of Teresa) into the yard to search 40 acres filled with thousands of cars. Sounds like an impossible task. Incredibly, however, they start their search within several hundred yards of the actual car. They then searched in a direct line towards that car. Think about the odds of that. They started close to the car, then searched in a straight line toward the RAV4. They found it within 30 minutes. 30 minutes! It's as if they were 'drawn' to the car. Those are two incredible coincidences! Add that to Hillegas guessing Teresa's cellphone password, and the odds of all three things happening are astronomical. We're talking about near-clairvoyant knowledge. Finally, what are the odds that of all the searchers, only Sturm and her daughter were given a camera? 

How did Sturm find the RAV4? She said that God showed her. I am someone who believes that God occasionally does things like that. I also believe, however, that people sometimes give God credit for involvement in endeavors he would have nothing to do with.


Exclusionary Hearing:

Before any trial starts, all sides have the right to know who is going to testify in trial, and to what what they are going to testify. Yet a week before Avery's trial, the prosecution had inexplicably failed to give notice to the defense whether Brendan Dassey would or would not be testifying in trial. This has nothing to do with evidence, it's gamesmanship. This is also the strongest indication I have seen that the prosecution knows that the interrogation of Dassey would be easily disassembled by the defense, and that his confession was not likely at all to help them in trial. Otherwise, he would've been their first witness.

Brendan Dassey was simply being used as a bargaining tool by the prosecution against the defense and judge. I was slack jawed to hear the prosecutor tell the judge that if a pretrial instruction was given, curative of the publications about Dassey's charges, then they would charge Dassey.

What was the jury instruction the prosecution feared? It was an order from the judge requiring that jurors disregard anything they heard in the press about Dassy, and that Dassey's alleged confession could not be considered in their deliberations about Avery's guilt. What the prosecution wanted, of course, was to be able to avoid Dassey's 'confession' being challenged in court, yet still have his allegations considered by the jury.

Such an instruction would cause the prosecution some serious problems. Because if Dassey did not testify, and the jury was given the curative instruction, then no testimony by Dassey was forthcoming, the jury could very responsibly come to the conclusion that had the confession been true and reliable, Dassey would have testified. It would essentially render Dassey's confession false to the jury. The prosecution, therefore, would have to have Dassey testify in order for that curative instruction not to be a ball and chain for the prosecution.

The prosecution's threat to charge Dassey if the jury instruction was given was  a cynical quid pro quo.  I found it frightening that Kratz complained that the jury instruction would have the prosecution "swimming upstream" at the outset of the trial.  Defense attorney Dean Strang's response was something that should be required reading for law students:

"The state," he said, "Is supposed to be swimming upstream." The presumption of innocence, he argued, was absolutely necessary for anybody to get a fair trial. For the state to complain that they were not on even ground, is to misunderstand the American legal system. One might as well rage against the blueness of the sky.

Remember, a lot of people don't understand that when a trial starts, the jury is not allowed to be unsure of whether the defendant is guilty. Before the first words of the trial are uttered, the jury must, must, consider the defendant in the courtroom an innocent man. The defendant is not someone about whom no decision about guilt or innocence has been made; he or she is legal innocent. If the prosecution fails to show a compelling case against the defendant, the person is simply innocent. 
Watching both the exclusionary hearing and the trial, it appeared to me that Kratz was behaving like an individual who didn't have the evidence to convict on a fair playing field. He reminded me of a football coach going into a game knowing that his team was outmatched in every way. So how does a team like that win the game? Well, some use underhanded tactics like holding, pass interference, or anything they can get away with. And, they are can utilize trick plays. In this trial, Ken Kratz used both; trick plays and underhanded tactics.

As soon as his opening argument, I saw an immediate, very clever ploy by  Kratz. He put a photograph up on the big screen of Teresa Halbach, next to a photograph of Steven Avery. I don't know if Kratz knows the official term for what he was doing, but it was an attempt at something called "imprinting." What that photo did was put in the minds of the jurors the face of Steven Avery next to the face of Teresa Halbach every time they visualize her. This is the kind of trick that advertising  firms have exploited for decades. 
Another thing the Kratz did in his opening statement was to overly inflate the emotional portion of the case. He talked about Halbach's bones not as 'Teresa's bones,' but as the "...tibia of Karen Halbach's daughter." Yes, I get it, Ken, you want everybody to be outraged about the death of Teresa Halbach. But we already were. What Kratz was trying to do was take the anger and horror of Halbach's death and place it squarely on the shoulders of a man who was (at least in theory) innocent until proven guilty.
We all know and accept that Teresa Halbach met a horrible end. However, the reality of that doesn't have anything to do with Steven Avery, absent valid evidence. Kratz' inference is simply that "We have the right man, and if you don't convict the guy we've put in front of you, then he's going to get away with it."


Before I discuss the statement of Bobby Dassey, we all have to be on the same page about what needs to be true before a trial can occur. First, all sides have to be on even footing as far as evidence to be presented in trial is concerned. This means that every party to the trial has to know all the information that is going to be presented in the trial by the other side, well before the trial starts. And if evidence comes up during trial, that evidence must be provided to the other side, whether the defense finds it or the prosecution finds it. The other side then gets a chance to review the new information, investigate the validity of it, and prepare to deal with it.

Decades ago, there was a TV show called Perry Mason, in which every episode invariably finished with a surprise new witness, or piece of evidence that the defense came up with at the last second. When the evidence or witness was presented, there were gasps in the courtroom and frequently, the real murderer (always conveniently in court) would blurt out a confession and his motive. It made for great TV. But it makes for horrible, unfair trials. And in reality, it's not allowed to happen, except apparently in the case of Ken Kratz and the Steven Avery case.

The testimony of Bobby Dassey was just such a ridiculous, unfair, and prejudicial Perry Mason moment.  The fact that Kratz engaged in such an underhanded ploy speaks volumes about his own doubts about winning the case on valid evidence alone.

Bobby Dassey's testimony on Sunday, Part 3.