Episode 4: "Indefensible"
And finally, we arrive at what Rick Blaine, hero of Casablanca, would call, "The 'Wow Finish;'" the discovery of the vial of blood in Manitowoc County's evidence room. However, in some ways the significance of the 'dramatic' discovery of the blood vial may be misleading. I'm not saying the blood is insignificant, but I am saying that the simple existence of the blood in the evidence room is by no means a 'smoking gun' in and of itself. It may or it may not be such, but we (I) will find that out as we (I) see episodes 5-10.
Obviously, the inference communicated in the documentary is that the blood of Steven Avery in the Toyota RAV4 was planted in the vehicle. This would be hard to believe if there was not at least a source of Avery's blood available to MCSO. The vial provides that. As an early journalism major in college, I found that the "5 'W's'" (and the "H") of journalism was exceptionally well-adapted to criminal investigation; Who, What, When, Why, Where and How.
If we don't know at this point who may have planted the blood, or when, or where, or how, we now at least have the potential 'what;' the source of the blood.
But before we can really effectively discuss the vial and its significance, I want to make sure that you all know where I'm 'coming from' when I discuss evidence, and how investigators interact with it. It's a love-hate relationship.
For those with little or no experience with criminal evidence and/or its handling, let me give you a little glimpse into the 'evidence room.' Evidence, especially old evidence from long-closed cases is, frankly, a pain in the a--. It was a thorn in my side in the FBI, and I was not alone in this opinion. It was not a pain or an inconvenience because I was in any way, shape or form improperly handling it, but because of the intricate and arcane rules required for the proper handling of it.
There are legal requirements and there are purely scientific requirements. For instance, one of the main legal requirements is "chain-of-custody," meaning that at no time is the evidence not legally in the documented possession of an individual or secured in safe storage. If evidence is removed from the evidence room by an agent, the agent must sign accepting the evidence, and the evidence clerk who runs the evidence 'room' must sign releasing it, including the time of the transfer--to the minute. (Evidence 'room,' by the way is slang. For large departments or federal agencies, some evidence 'rooms' are warehouses.)
Scientific requirements are even more stringent. Violating a legal requirement risks having the evidence 'excluded' from trial. Violating a scientific rule risks the evidence being rendered useless. Improperly collected, stored or shipped evidence can be rendered useless if it spoils or otherwise deteriorates.
Think of it this way; even after a trial is concluded, evidence cannot be released or destroyed quickly for a number of reasons; the best example of which is that things like DNA samples could clear somebody like Steven Avery 20 years after the trial concluded. So the day the trial is over and your man (or woman) is locked up, you cannot discard or destroy the evidence for that case. Even the day I retired from the FBI, I believe that evidence from my first cases in the early 1980's almost certainly remained in evidence storage.
In those first FBI years, I worked 25 to 30 cases simultaneously, almost all of which required the storage and collection of evidence. Who "owns" evidence within the agency? The lead investigator/case agent. As an agent's career progressed, their 'collection' of evidence grew exponentially. This evidence, at least in the FBI, is the shared responsibility of both the case agent and the full-time evidence technicians. (Agents often participate in searches in which they collect evidence and log it in, but because they are not the lead investigator, they are not responsible for maintenance of the evidence.)
Think of the evidence room as a museum collection, with the evidence technicians as the "conservators," of the collection; the professionals who deal with the exhibits on a daily, full-time basis. The FBI agent himself or herself would be analogous to the "curator" of the collection, the one who decides what is going to go on display (trial) and what will be retained or discarded, but who interacts with the evidence rarely, and only at significant times. Still, agents must be experts on their collection and possess complete knowledge on what evidence they can and cannot dispose of.
I don't know how it works in Manitowoc County Sheriff's Department--but in the FBI, agents can go 'review' their evidence any time they want; but they cannot simply go and look at their stuff without that activity being logged and monitored. They have to plan ahead, make appointments, etc. This is likely not a problem shared with smaller departments. Agents cannot, however, review the evidence of other agents' cases without that agent's assistance. When an agent retrieves their evidence from the evidence technician, the tech 'logs' the evidence (in the 'chain-of-custody' log that accompanies the evidence) to your possession; again--down to the minute.
Imagine for a moment that I was the arresting officer in the 1985 rape case of Steven Avery, and Manitowoc's evidence-handling rules were similar to those of the FBI. After collection in a tube containing the anti-coagulant EDTA, Avery's blood would be placed in evidence storage pending sampling, testing and trial use.
If I then wanted to review that evidence later, for investigative (or hypothetically, even nefarious) purposes, I would contact the evidence technicians and make an appointment with them to view the case evidence. When I arrived at the evidence room at the appointed time, the requested evidence would have been selected and be ready to be viewed by the agent, much like requesting archived information from a library. The agent would not, except under unusual circumstances, actually enter the storage area. That would be like going to a bank to get money and having them bring you back to the vault. Sometimes, however, you do go to the evidence; searching for misplaced evidence or reviewing items too big to move; furniture, cars, etc.
If these steps are not taken, does it mean that the evidence will be inadmissible in trial? Maybe, maybe not. If these procedures are not followed, the defense can make a legitimate case that the evidence has not been properly managed and could have been manipulated, such as is inferred in Episode 4 by the film-makers in Making a Murderer. But even if the evidence is not excluded, it could be viewed with suspicion by a jury. The LAPD found this out to their chagrin during the O.J. Simpson trial, in which a guilty man essentially was set free in large part due to the fact that LAPD had not properly handled their evidence.
If I was the investigator for the defense on this case, here's what I would be doing immediately:
1. I would have the blood found in the RAV4 tested for EDTA, the anti-coagulant present in blood vials used to store sample blood. If the blood from the vial was used to make the blood smear in the RAV4, then it would show chemical signs of EDTA. If it doesn't, it would appear that the blood was not from the evidence vial. (I would have to speak at length with my buddies over at the FBI Lab to verify my theories.)
2. I would obtain a list of everybody who had any type of custody of that blood evidence -- going back to the day it was collected. I would obtain a list of anybody and everybody who had access to the evidence room, whether logged or not. This would include possessors of keys, and any electronic date recorded by access systems.
3. If at any time an individual could be determined to have been in the evidence room, yet chain-of-custody logs revealed no (logged) access to evidence in that individual's case load, then the question arises; "If you weren't reviewing your evidence (legally), then why were you in there?"
4. I would investigate, in detail, why and when the second and seal was broken on the Styrofoam box which contained the vial, and by whom. I would require to the sheriff's office to explain why the box had not been resealed. I would require this information under oath.
5. I would require that the box examined for fingerprints and/or DNA. Especially important would be the examination of the cellophane tape used to improperly seal the box, because when an individual pulls out cellophane tape from a dispenser, the 'pad' of their index finger invariably comes in contact with the sticky side of the tape, and tape is a wonderful collector of fingerprints. It is such a great collector that is used by evidence technicians to lift fingerprints. I would want to know who put that tape on that box and when.
6. I personally want to know why there is blood up and around the neck of the rubber stopper. These are supposed to be air-tight containers. Blood around the neck of the vial makes me suspect that the rubber stopper might have been removed at some time.
7. I would want the vial itself fingerprinted. I would require laboratory blood technicians going back to the date it was collected to testify about when and where this blood was tested and what blood (if any) was removed from the vial--and how.
8. I would obtain sworn statements from everybody involved, including Sheriff Peterson and Detective Lenk, about their knowledge and involvement with that vial of blood. This tends to make public officials think twice about perjuring themselves.
9. I would contact the FBI lab to determine whether old blood has any identifying characteristics; do red or white blood cell counts change with age? Is there any other biological change with age, such as cell wall thickness or any other arcane detail which could assist in determining the actual age of the blood near the ignition key of the Rav4.
9. I would obtain information from wound experts to attempt to determine the age of the wound on Steven Avery's middle finger--as shown in photographs. That appears to me to be a wound that some people would have wanted sutured or closed. It goes without saying, however, that some persons -- say the type that own and run junkyards, would probably not have the same threshold for seeking medical care as somebody who has grown up in a suburb.
10. Finally, I would want to identify what the physical result of puncturing the cap of the blood vial would be. I would want to know whether the use of a hypodermic needle would create a hole, enlarge an existing hole, or any other effect.
In short, the existence of the appearance of an improperly-accessed blood sample has opened a crack in the prosecution's case, or at least the public perception of that case.
Had Steven Avery never been obviously wrongly convicted by the Manitowoc County Sheriff's Office, then maybe these questions would not have to be asked. But the fact is, MCSO was run, at the time of Avery's second arrest, by a man who didn't even accept the validity of the DNA exoneration of Avery. Obviously, he was biased. Obviously he was convinced that Avery was a rapist and a murderer. Most disturbing however, is possibly not that Sheriff Peterson doesn't accept the evidence as valid, it's why he doesn't. Why not? Because, Sheriff Peterson explains, DNA evidence can be manipulated or planted. It reminds me of a truism; a spouse who could never cheat is rarely suspicious that their spouse--because cheating is incomprehensible.
A cheating spouse, however, frequently accuses their husband or wife of cheating. Why? Because it's something on their mind. I find it concerning that Peterson is so convinced that DNA could be so easily manipulated--while in Manitowoc County Sheriff's Office custody. Or maybe he believes that it was manipulated by the lab? Either way, it's a problem.
I have not come to many conclusions at all about these cases (Avery and now Dassey). I am convinced, however, of one thing at this point: The "confession" of Brendan Dassey was coerced, is false, and borders on criminal. If Brendan Dassey's statements were used in any way shape or form against Steven Avery in court, then the case against Avery and any conviction would have to be re-examined and/or set aside.
With regard to the search of the Avery property, I can add little to the statement about the search made by Illinois investigator Peter Baetz, a 25 year veteran investigator:
"I never witnessed a search like this....[It's the] most unprofessional mess I have ever seen."
A warrant doesn't give law enforcement ownership of the property. A warrant is not open ended. A warrant issued today does not allow law enforcement to enter your property a year from now. There are certain reasonable limits and timelines on search warrants. For them to have the property for eight days is incomprehensible to me. In 25 years in the FBI, I never saw a warrant service extend 8 days, and we searched some pretty significant locations. It seems to me that a competent group of investigators and crime scene technicians should have been able to complete their searches in 48 hours at most.
And make no mistake, Manitowoc County was involved with the search. Why give the investigation to Calumet County if Manitowoc Sheriff's Office personnel are on scene? That makes no sense. According to former detective Baetz, the search went on for eight days. And the specific room in which the murder allegedly occured was searched seven different times.
In this case, I don't have enough information to determine whether the statement made by Baetz about the 'repeated' searches is accurate or not. I have not seen the investigative product and I have not had the benefit of knowing what Baetz believes constitutes a 'separate' search. For instance, my experience was that (hypothetically) if the FBI began a search at three in the afternoon at a certain location, we might go until midnight before determining that we should secure the location for the night and pick it up the next morning so that the Evidence Response Team (ERT) agents and technicians would be well-rested and therefore more capable. This is not, in my opinion, two separate searches. This would be one search which was broken only by the need to rest personnel.
If, during those eight days, the room in question was searched seven different times on consecutive days, an argument could be made that it was not a separate search, but one seven-day search. The question would then arise; "What the hell took you so long??"
The way I personally define a separate search, is a search conducted after the property has been released back to the owners or occupants. And that search would require a separate warrant. If I hold the property for two days and search over those days with an eight hour break for sleep, then I have then I have conducted one search over the course of two days. An eight-day search, is difficult to understand in this case. However, that does not, in my mind, mean that it was necessarily seven or eight separate searches, because the property was never released.
There is a caveat to this, however,. If the same area was searched and re-searched by investigators, all looking for something that they could not find, it assumes that they were looking for something that they believed would be there. And it begs the question; "If you can't find "it" how did you know what it was, or that it was there?" And if you didn't know it was there, how did you know you hadn't found it? So to search a location seven different times (even if legally it was one search), indicates to me that the investigators had either pre-existing information that a certain thing was in a location, or a determination was made that they should (or needed to) find a specific thing at the location. One possibility is understandable, the other is frightening.
I once kept a search going for several extra hours because I had a receipt proving that the individual had purchased two high-powered rifles and we had only found one. That's the reason a search could go on. Without that receipt, if I only found one rifle, why would I have kept the search going? Re-searching a location PRE-SUPPOSES knowledge of the contents of the searched location. Of course, all search warrant applications have to indicate what is expected to be found at a location, and why. If you can't answer that question, you won't get a warrant. But the question is usually answered by vague statements such as "instrumentalities of the crime of murder..." etc., and rarely "A key to a RAV4," though that could be covered under "missing belongings of the victim," which might be expected to be at the location where she was believed to have been murdered.
If something is alleged to have been someplace or somebody testifies that something was there, or a confession (like Dassey's) requires that something like, say, blood would be in the room, if you searched seven times and don't find it, I understand that practice.
This evidence should have been in the searched area for Dassey's 'confession' to be true:
The bed frame to which Teresa Hall Bach was allegedly chained and tied was wood. Therefore, there would be evidence of the shackles. There is no way you can convince me that a wood bed frame to which a woman struggling for her life was chained, raped repeatedly, and murdered, would not be marred by the chains. Or even the rope.
Again, I have to include the caveat that I have only seen what's in the show to this point and it is possible that certain things I don't think were taken into account were actually collected and analyzed. I do not, however, think this is the case, because the bed and the bed frame were seen approximately the same location they were at the time of the crime. The bed sheets, of course, were gone, but blood seeps through bed sheets and a mattress with blood on it below bed sheets with blood on it is much better evidence than having to explain how the sheets miraculously stopped blood from getting through to a mattress hypothetically.
The only thing I have concluded (and even this could change if reliable contradictory evidence is provided) is that Brendan Dassey's confession was not simply improperly obtained, it was completely false and coerced.
However, I still have a ways to go before I declare that there is irrefutable proof of evidence tampering in the (second) prosecution of Steven Avery. I still believe that the evidence presented to this point -- if true -- strongly indicates that Avery is the likely killer of Teresa Halbach. The elephant in this room is simply this: Is the evidence reliable?