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:
- 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.
- 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.
- 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.
- Different types of evidence were improperly co-mingled. You don't physically store biological evidence in the same box as other types of evidence.
- 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.)
- 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.
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.
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.
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.
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.
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.
WHERE AM I ON THE FBI TEST?
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.
Still, 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?
CLOSING THOUGHTS, EPISODE 7
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.