"THE LAST PERSON TO SEE TERESA ALIVE"
The Film-makers chose to title this episode of the documentary; “The Last Person to See Teresa Alive.” Maybe they are intentionally hanging a lantern on the use of that statement by all involved in the investigation and trial. The problem with that statement is that it assumes Avery’s guilt. The last person to see Teresa alive had to be the killer. Avery is only the last ‘known’ person to see her alive. I, however, would title this article ‘Malfeasance.’
- The performance by a public official of an act that is legally unjustified, harmful, or contrary to law; wrongdoing (used especially of an act in violation of a public trust).
I believe this word encapsulates in one word, the strategy of the film-makers in Episode 5. The malfeasance of which I speak were those actions committed, allowed, alleged, proven and unproven in the episode. The malfeasance alleged by the film-makers and observed by myself can be broken down into four categories:
I plan, therefore, to address each individually. At the outset I should say that in an actual investigation, the trail will frequently grow hotter or will grow colder, it will change directions, sometimes even misdirect you. But at all times, an investigator must follow the trail where it leads, not where he thinks it will lead. The problem is that investigators sometimes become convinced that they know where the trail is leading and take shortcuts to get there faster. This is how wrongful convictions happen. This particular segment of our trail, Making a Murderer, Episode 5, wound around quite a bit, but at the end of the day, I felt very little closer to my destination—the determination of the guilt or innocence of Steven Avery.
“What?!” I can hear you asking. “You’re not sure? Didn't you see the judicial bias? Didn't you see the prosecutorial misconduct?” I did. “Didn't you see that Sgt. Colburn called in the victim’s license plate two days before the vehicle was found and three days after it was reported missing?”
Yes, I did. And I think I can probably see where this trail is leading….but I’m not willing to take short-cuts and get there ahead of the evidence. If the police and prosecutors actually ‘framed’ Avery for the murder of Teresa Halbach, the evidence of that will be found at the end of a trail. I’m a patient man. I will not, in trying to right an injustice, surrender to the temptation to take the same actions which were the root cause of the (alleged) injustice in the first place.
Think about it; the reason that the sheriff’s department was so obsessed with convicting Avery (if they were) was because they believed he had gotten away with rape, and that justice hadn’t been served. They fell to the old deception; ‘the ends justify the means.’ Avery had skated on a rape conviction, they believed, because evidence had been manipulated. So manipulation of evidence was the way that true justice would be done. Poetic, ironic symmetry. If any of us, in our desire to see injustices reversed, take shortcuts while trying to untangle the chaos caused by others taking those shortcuts, we don’t fight injustice, we endorse it. We just want our side to win.
“But Steve, didn't the prosecutor, the investigators and the judge make you angry?”
Yes. I’m not saying that I believe that the investigators and the prosecutors acted appropriately. Far from it. And neither am I saying that the implicit allegations made by the filmmakers were incorrect or off-base. What I am saying is simply that regardless of how suspicious and inappropriate the actions of the prosecution in this case appeared, the film-makers gave precious little proof to back up their inferences. I suspect, however, because of the film-maker’s track-record, that they will resolve the issues in future episodes, that they created in episode five. Such as the discussed but complete unanswered; “Who the heck was repeat-calling Teresa Halbach??” Both the defense and the prosecution know the answer to that because it was on her phone records, and the phone records were part of discovery.
My guess: Ryan Hillegas. An ex-boyfriend who knows or even remembers his former girlfriend’s phone password two years after they broke up? Come on, that’s stalker territory.
The documentary kind of hung us out to dry on the blood vial issue in this episode, didn’t they? I had hoped we’d get more information on the blood in Episode 5. However, this is a great example of what a real investigation is like; there are a dozen different investigative leads an agent or detective might be following simultaneously. Once the blood is sent off to the lab, you as an investigator might not hear anything for a month. Or two. In the mean-time, you’re following up on searches, interviews and the like. Very little is linear, you don’t get the information you want immediately, and no two days are alike.
And just this quickly, the documentary brings us to the preliminary hearings and trial. Gotta love the magic of television. Getting this far would have taken you almost a year of your life as an investigator. The prosecution started the first hearing by losing their first motion. Judge Patrick Willis denied the state’s motion to exclude the blood as evidence in the trial. I was stunned that Willis didn’t agree with the state, given his apparent bias in favor of the prosecution.
I was bothered by both the prosecution and the defense’s stand on the blood vial evidence. If I were the prosecution (and I knew the sheriff’s office was innocent of any evidence-tampering), I would want the blood vial available for evidence. Have it tested, and show there is no EDTA in the RAV4 sample. That would be a major blow to the defense’s tactic of trying to convince a jury that the sheriff and the prosecution had framed Avery. Only if I didn’t know how the EDTA test would turn out would I want the blood vial evidence excluded.
However, Avery’s defense attorney, Jerry Buting argued against that test, which seemed odd to me. If Buting really believed that the police had framed Avery with that blood, I would think he would have clamored for an EDTA test. A positive EDTA test from the FBI would absolutely destroy any chance the prosecution had of convincing the jury that they weren’t corrupt.
Buting, however, claimed in court that the FBI no longer did the EDTA test because it was unreliable. He later alleged the FBI was dishonest and that he didn’t trust the results the FBI would return. This argument appears contradictory to me. The main reason for an EDTA test would be in situations like this; suspected evidence tampering. If the FBI was dishonest, they would want the EDTA test available, so they defend police departments accused of evidence tampering. The lack of an EDTA test precludes police officers accused of planting blood from defending themselves, and is therefore a loss only to the prosecution.
I understand that FBI lab technicians have made mistakes in trial (and worse), and that FBI Lab procedures were once found to be inadequate in certain areas. Because the FBI is made up of human beings, bad things have happened, and will unfortunately happen again. But to allege that the FBI as an agency is corrupt because of the actions of a few personnel is evidence of unrealistic bias, is offensive to me, and hurts Mr. Buting’s credibility. Never once in the FBI did I ever come across a case where any iota of dishonesty was ever evident. I can, however, give Mr. Buting some reassurance. I care about the truth, and I am no more or less likely to believe Mr. Buting now than I was prior to his incorrect statement about the FBI. Everybody is entitled to the benefit of the doubt.
The speed at which the Manitowoc County Sheriff's Department focused on Avery was a speed that would challenge the “Millennium Falcon.” When the RAV4 was found on the Avery Recycling yard, Teresa’s body had not been accounted for. However, the radio call, “Is Avery in custody?" indicates a rush to judgment had made the jump to light speed.
I must confess to a question I have had for many, many years. Why does it seem that so many investigators are in a hurry? It was a rare occasion in the FBI where I arrested a suspect before I had completely completed my investigation. Literally, in more than half of my cases, I could have gone to trial the day after the arrest, if not for the defense’s need for discovery and preparation of a defense. Why arrest Avery so quickly, unless you thought he was a danger to the community? I would suggest with the press coverage the way it was, that Avery was probably not a huge risk. Neither was he a flight risk. He had remained in Wisconsin the entire time of the investigation, up until his arrest. The investigators in the Halbach disappearance were in a rush to make an arrest. I say ‘disappearance,’ because the rush to arrest was obviously evident before body parts proved that she was deceased. Why?
Ryan Hillegas, as most of you know, was Teresa’s ex-boyfriend. Teresa lived with a man named Scott Bloedorn as ‘roommates.’ Whether this was the case or not has not been proven either way, as far as the first five episodes of Making a Murder. I would love to know the answer to that question. Regardless, it is a truism known to all law enforcement that statistically, spouses, significant others and roommates are so often responsible for murders of their friends that they cannot be ignored as suspects. Yet, in this case, they were.
The lack of a robust investigation of the alibis of Hillegas and Bloedorn is a glaring, blinding omission, which casts a shadow over the entire investigation. Ryan Hillegas actually stated that he was allowed past police crime-scene tape and was interviewed by police in the presence of Teresa’s roommate Bloedorn. When two people are interviewed simultaneously, those people are called ‘witnesses.’ Never are potential suspects interviewed in the presence of any other (non-investigative) person—especially another suspect. Interviewing in the presence of another suspect is a very efficient way of destroying any chance you have of getting an independent statement from individual suspects.
In essence, Colburn testifies that on the evening of November 3, 2005, three days after Teresa went missing and two days before the RAV4 was found, he was on patrol.
According to his testimony, while on patrol, Sgt. Colburn had received a telephone call from Sgt. Mark Wiegert of the Calumet County Sheriff’s office advising him of the missing person report involving Teresa Halbach.
Let’s just look at that call for just a second. Wiegert was working the missing person case because Halbach was missing from Calumet County. Why then, did he decide to call an individual deputy, from a different county, on the phone, to notify him of this case? I can understand that he wanted to get the news out to surrounding counties, but I would want to know what other counties Wiegert called. Or did he only call the county in which Steven Avery resided?
In this type of situation, the investigator in charge of the missing person case would, in my experience, do the following: Notify via police communications and computer networks, the details about the missing person and the case, along with vehicle information, possible suspect information, and any other thing that might be relevant. They would also try (at least in smaller towns) to get the information on the missing person broadcast on local television in hopes of leads or sightings. Finally, if they were really zealous, they would contact the watch commander at the surrounding counties and notify them of the details of the investigation. The watch sergeant, then, would, if appropriate, communicate simultaneously with all units on patrol, either by radio or by computer terminal (depending on the equipment used by different departments).
For a detective in one jurisdiction to single out a single deputy in a single county, at night, and call him directly indicates two things:
- The investigator had the deputy’s cellphone number. Why?
- This was not a normal communication.
It is fundamentally troubling to me that shortly after Colburn says he received the abnormal communication from Wiegert is when he telephoned in the request for registration information on “SWH-582.” Additionally, any standard missing-person report involving someone whose car was missing, would include the license plate number of the vehicle. So if Wiegert was simply providing a routine missing-person report to another law enforcement officer, Colburn would have had the license plate number. Absolutely. No doubt.
Frankly, this scenario is not inconsistent with an investigator from one jurisdiction calling an officer in his or another jurisdiction and having him check out a location for him. Those favors are not unusual. Did Wiegert call up a buddy (he had his personal cellphone number) and ask him to check a location for Halbach’s car? And was Colburn’s call to the dispatcher in Manitowoc County an attempt to verify what he found?
As troubling as this question is, it is small compared to the issue of how Colburn apparently called to check on SWH-582.
Every single time a policeman stops a vehicle on the freeway or road, (most of the time before the red lights even go on), the policeman calls is what we in California call a “10-28, 10-29;” the record of the vehicle registration and wants and warrants. This is for officer safety. It’s so that before the officer approaches the car, he knows whether the car he’s just stopped is listed is stolen, or the driver is wanted for a murder. This information is obviously crucial. Besides forgetting to put bullets in their gun at the beginning of the shift, failing to call in a 10-28/29 in to dispatch prior to a stop is the last thing that an officer would forget to do. So on the evening of November 3, 2005, Colburn calls for a 10-28/29. Standard operating procedure. But guess what? He doesn't do it on the radio. He uses his phone.
There is no good reason, especially if he’s in or near his cruiser, for him not to make the request on the radio. The deputies in Manitowoc County carry their radios on their bodies, with the microphones up by their left shoulder. Even if Colburn were out of his car, with one click, he could have requested the information he needed. In my entire career, the only time I didn’t use a radio for my 10-28, 10-29 checks were when I was writing a report at my desk. Using a cellphone to contact dispatch for wants and warrants when your radio is operational is unusual in the extreme. It's just not the way it's done, and it raises many serious questions.
One reason one would not want to call in a request for wants and warrants on the radio is that others would hear. Usually, that isn’t a problem. In fact, it’s another safety factor for officers. They get to hear the location of other officers and the cars they are stopping in case of an emergency or the stopping officer needs a backup. So why not use the radio if it’s the easiest, most efficient and safe thing to do?
I gave Colburn the benefit of the doubt. Strange things happen on patrol. I waited for Colburn to simply explain why he had done it that way; that he was writing a report and needed the information on that vehicle, that he had a suspect in the car with him and didn’t want the information broadcast back over a radio that could be heard by the suspect, or at least something that would explain the cryptic call. No answer came. If Colburn had a good answer, you would think that he would tell the court.
Absent any credible answer, one is allowed to suspect that there were nefarious reasons for the clandestine registration verification. Why, if Colburn had been given a missing-person report, did he not know the license plate of the RAV4? Why did he not just cross-reference it? Did he not know that the dispatch phone line was also recorded? Some officers don’t realize that.
If the call was after the 10-28/29 phone request, then Colburn’s problems are just as immense, because he didn’t know the license number of the missing person’s car prior to that. It could have been the moment that he stumbled on the car—wherever it was. I would want cellphone records to determine which cellphone towers were ‘pinging’ Colburn’s phone at that time he called in the registration request. If he wasn’t in the vicinity of the Avery Recycling yard, then there’s a big, big, problem. This radio call may be the most damning piece of evidence I have seen in Episode 5.
Interestingly, as Colburn was testifying to this strange, inexplicable action, he was literally wringing his hands and moving them up to his chest and down as if he’d momentarily forgotten the training he was given to ‘always get to keep your hands on the desk and speak in a matter-of-fact tone.’ His eyebrows took on a surprised, possibly fearful look.
Understand that I am not saying that those physical observations are indications of deception. I am not a human lie detector. However, they are obvious signs of stress on the part of the witness, Colburn. And when seeing such obvious signs of stress, one has to ask themselves why the witness has suddenly become so stressed when particular questions are posed. Deception is on the list of potential reasons for stress. But the important word in my last statement is ‘potential.’ It is not a certain determiner of guilt.
But I assure you, Colburn, Kratz, Bobby Dassey, Ryan Hillegas and Scott Bloedorn have a lot of questions to answer.
(Part II on Friday)