Making a Murderer: Rebutting the Rebuttals

Se is an update on my previous post about the Documentary, Making a Murderer. Once again, SPOILER ALERT, if you haven’t seen it, go watch it. You will have to complete the series to avoid spoilers here.

Before, I said that Making a Murderer is told from the side of the defense. That is true, and the documentary should be watched that way. As expected, people have come out and shown evidence and facts left out of the documentary. However, it is these responses which have been even larger proofs of my belief that Steven Avery is not guilty.

In short, the lackluster responses are evidence of a lackluster theory of guilt. The defense put out all the stops out in the documentary. With their entire case out there, the prosecution’s side could show exactly what was left out and re-present their case with a firm rebuttal. But the responses are flawed, logically unsound, and often are in conflict with what the jury found.

To illustrate my problems with the responses, I have chosen one response that absolutely believes that Steven Avery is guilty. I will respond to it point by point. It is not very good, but it is fairly representative example. You should read it first, but I will quote the relevant portions below.

First problem,

“Teresa Halbach was at Avery’s property to take photographs for an auto magazine, he was her final appointment of the day and there is no evidence she ever left the property.”

First, “There is no evidence she ever left the property.” Well, true. But there is very little evidence she stayed either. Absence of evidence is not evidence of absence. Just because Steven Avery cannot prove that Halbach left, that is not proof that Halbach did not leave.

This article tries to paint the lack of evidence on the part of the defense as the PRESENCE of evidence for the prosecution. But that just doesn’t work. This flaw is either bias or sloppiness on the part of the writer.

Second problem,

 “In Avery’s case, they don’t even really present a theory, no matter how preposterous, to explain how Avery’s sweat ended up on Teresa’s car and key”

Okay, first, let’s make something clear: There is NO SUCH THING as “sweat DNA.” Sweat is salt and water and a few other chemicals. DNA exists in human cells, and pure sweat has none. Now, sweat can be a mode of transferring DNA from one place to another, just like Styrofoam can be washed into a stream by rainwater. But to extend the simile, realize that “sweat DNA” is like saying “styrofoam water.” There is no such thing.

Second, remember that the entire Avery defense was that evidence was planted on him by the sheriff’s office that he was suing. Knowing that, can we just acknowledge how easy it is to get the DNA of someone who is in your custody in jail? Can we just acknowledge how easy it is to obtain DNA from somewhere on Avery’s property when you have access to all of his clothing? You realized you can get DNA from a person by touching them, or swabbing something that the person touched. Ken Kratz, the prosecutor, sarcastically asked in an interview, “Do the cops also have a vial of his sweat that they are carrying around?” But so long as they have ANY evidence from his house that they seized which was in close proximity to Steven Avery’s skin (maybe….bed-sheets?), the answer to this question is “Of course they do.” This is NOT a serious objection when you think about it for more than a minute.

Additionally, even if the evidence on the car hood and battery was not planted, what does this evidence prove exactly? It proves that Avery opened her hood and touched her battery cord. It is quite a jump from “the junkyard worker opened the hood and touched the battery cable” to “the junkyard worker killed the owner of the car and burned her body.” This is especially true when it is undisputed that Avery saw Halbach before she was murdered. This DNA evidence is obviously relevant, but it does not prove anything on its own. It must be supplemented by other stuff for it to mean anything. It is the utter lack of this “other stuff” that makes this evidence worthless.

Third problem,

Maybe the most compelling moment in the series comes when the defense team is first afforded access to the vial and they discover a small puncture hole in the tube top. It is hard not to moved by that moment. That is, unless you know that those sorts of punctures are at least somewhat common.  Well, that sure changes things but the filmmakers either didn’t know that or just didn’t care to share it with the audience.

Now, this is somewhat of a good rebuttal. But strangely, it doesn’t make much of a showing in most “what was left out” articles. Also, it doesn’t offer a knock-out punch.

If you follow the link in the quote, you’ll see that the prosecution was going to call a witness to rebut the theory of the blood vial being used to plant evidence. Supposedly, the vials are always punctured, as opposed to what the defense counsel said in the documentary. Because the blood vial did not make as big of a splash at the trial as it did in the documentary, that witness was not called.

Now, that’s all fine and good. But that means leaving this information out isn’t so much a problem as it is a non-issue. Why was this info left out of the documentary? Because it was left out of the trial.

But keep in mind: this evidence had zero effect on the conviction of Steven Avery. It was not evidence in the trial. Therefore, the reasonableness of the conviction is not affected by this particular extrinsic evidence. We’re fine to debate it, but it is still definitely an issue. Even if the top is punctured normally, that does not explain the broken evidence seal. There is still an extremely plausible way for the police to have planted the blood, which is the main thrust of Steven Avery’s defense.

Fourth Problem

“Without a doubt the most incriminating evidence is Teresa’s charred body parts found on Avery’s property where he had created a bonfire the night she went missing. Again, the defense suggests the remains were moved aka planted but it is unclear if the defense is suggesting the police or the real killer moved them.”

We are in agreement that this evidence is by far the most incriminating evidence against Steven Avery. No matter who you are, it is not good for you when the remains of a missing person are found outside of your house. But there are some major problems about pointing to this evidence as definitive for the prosecution.

First, we KNOW the bones were moved, because the bones were found in three different places on the property. It is not far-fetched to suggest that if we KNOW the bones were moved from one place to two places, the bones could have been moved from an off-site place to three places on the property.

Second, and this is big:


That is huge. This means that the most damning evidence for Steven Avery’s guilt was deemed to be NOT PROVEN that he did it. If that is the case, why do we treat the burning of Teresa Halbach’s body as evidence that Steven Avery murdered Teresa Halbach? Why isn’t this evidence against the murder conviction in that a key piece of evidence cannot be attributed to the defendant? The logic breaks down.

So According to the jury, he DIDN’T burn Teresa Halbach. So how do we know he murdered Teresa Halbach? Well, that’s the bullet, and…..   well, if you still think he’s guilty, then tell me what other evidence you have. See if there is any unquestionable physical evidence to corroborate it.

The ignorance of the acquittal is telling, and is an example of a bad explanation by the article and other apologies of the prosecution.

 Fifth problem,

 “Which leads to an interesting question if Avery didn’t do it, who did?”

Please, please, PLEASE don’t fall into this trap. This is an irrelevant question for Steven Avery’s guilt or innocence. If I accuse you of killing someone, you do not have to prove that somebody ELSE killed the person to prove your own innocence.

Additionally, if the documentary speculated as to who killed Teresa Halbach, that would be bad. VERY BAD. The speculation of Steven Avery’s guilt on the part of reporters and media is one of the major problems the documentary shows in Steven Avery’s trial. Why would the documentary repeat that mistake? Why would this speculation be DEMANDED as proof of Steven’s innocence?

If somebody is asking this question as an implied reason for Avery’s guilt, then this is evidence that they lack a solid case for Avery’s guilt.

Sixth problem,

 “The defense and documentarians also highlight the lack of certain evidence: Why was just Avery’s DNA on the car key and not Teresa’s? Why weren’t more of Avery’s fingerprints found on the car? Why wasn’t more of Teresa’s DNA found in the garage or home? Why wasn’t there blood spatter on the walls or ceilings? . . . Regardless, this is a typical, usually failing, defense strategy that emerges in case after case. As the saying goes “absence of evidence is not evidence of absence.”

Whoa…. whoa… whoa…. You realize that the police have to prove EVERY part of their crime beyond a reasonable doubt? It is not up to the defense to explain precisely why the police evidence is missing some rather spectacular things, including, but not limited to:

  1. The absence of Teresa Halbach’s DNA on the key that Steven Avery possessed for a few hours/days and which she possessed for years.
  2. The lack of blood stains or DNA at the the place where her throat was slit.
  3. The lack of blood stains or DNA in the messy garage where she was shot.
  4. The presence of Steven Avery’s DNA in the place where Steven Avery supposedly scrubbed the floor for DNA with bleach.
  5. The lack of an explanation as to why a Manitowoc County Sheriff’s Deputy who was involved in the $36 million dollar civil law suit called in the license plate of Teresa Halbach’s car days before the car was found by someone else.

And remember: it is not up to the defendant in a criminal trial to come up with any story. He can win his case simply by poking holes in the prosecution’s story. Avery does not have to explain anything except to refute what has been presented against himself.

However, the police are supposed to explain their case, on their own, beyond a reasonable doubt. Unfortunately, this paragraph basically admits huge swaths of missing information in the prosecution’s story, and then it basically says, “Meh… so what?”

So, while it is true that an absence of evidence is not evidence of absence (see point 1), in a criminal court, absence of evidence IS a reason for innocence. (…or at least it is supposed to be.)

Seventh Problem

“Maybe the greatest fallacy the defense offers is that it would just have required one person Lieutenant James Lenk (maybe with the help of Sgt. Andrew Colburn) to make the conspiracy work. But just through the course of the documentary, the defense team suggests a whole host of additional conspirators”

Here is yet another breakdown of logic. The defense has stated that it only takes ONE person to plant bad evidence. They demonstrated this in the documentary through their timeline. But the defense suggested SEVERAL people who could have fulfilled that role or been additional bad actors.

This is not a detriment to the defense. It actually makes the defense’s story MORE likely, not less likely. They have proposed a theory with SEVERAL ways for it to be true, any ONE of which will make their client innocent. It’s like buying several raffle tickets instead of one. The fact that you bought two raffle tickets does not mean you do not get the prize when only one of the tickets happens to be the winner. This is a nonsensical argument.

This bad logic is just more evidence of either the sloppiness or bias of the author.

Eighth Problem

Some version of: “Steven Avery hid his identity from Teresa Halbach by dialing *67 and giving a false name!”

Well, no. The “false name” was the name of his sister, the owner of the car that was to be photographed. That’s not a false name, that is an accurate statement to a merchant about who the customer is. Additionally, Teresa Halbach knew exactly where she was going when she went to photograph the car, and had been there six times before – on AVERY LANE. How’s that for incognito? Even more, Avery made an appointment with the AutoTrader office, not her personal cell phone, for Halbach to come take the photograph. How is that hiding anything?

This is not evidence of anything. And yet it is being construed as evidence that something sinister is at work. No matter how atypical you think dialing *67 is, how can you connect it with Steven Avery murdering Teresa Halbach unless you already think that Steven Avery murdered Teresa Halbach?

Ninth Problem

Some version of: “Steven Avery’s history of sexual assault complaints was left out, including evidence of LEG IRONS that he owned!”

This is a good example of what the law of evidence calls “relevance.” This is quite frankly not even relevant. It does not even have a remotely casual connection to whether or not Steven Avery killed Teresa Halbach. Let me explain.

If you’ve watched the documentary, you may have forgotten realize that Steven Avery was NOT EVEN CHARGED with a sexual crime. While he was charged with “false imprisonment,” being that he chained up Teresa Halbach before he shot her, that charge was DIMISSED because there was NO EVIDENCE FOR IT. There was not even enough evidence to pose the question to the jury. Therefore, the complaint that the film left out the evidence of his “leg irons” is essentially this: “the documentary did not present evidence of a crime which the evidence clearly shows did not occur.” Also, don’t forget that no DNA evidence of Teresa Halbach was found on the leg irons. So…. did the complaint of missing evidence leave out exculpatory evidence? The leg irons are evidence of nothing. The jury did not even consider a crime in which they would have been involved.

But remember this: If you were moved in any way about the claims of leg irons or complains of sexual harassment or assault when you read them, let this be an example of how tainted the trial was by bogus evidence and improper allegations of character. There was NOT EVEN A CHARGE of a sexual crime. And yet this continues to be an allegation that mars the defendant’s character. Steven Avery was charged with 4 crimes:

  1. First Degree Murder,
  2. Mutilation of a Body,
  3. Felon in Possession of a Firearm, and
  4. False Imprisonment.

He was convicted of the first and third. The fourth was dismissed. The jury found him innocent of the second. None of those was a sex crime.

Tenth Problem

Some Version of: “Steven Avery was a really bad character, and a violent murder is precisely within the character of the type of person he is.”

There is literally a rule of evidence in court against using this type of evidence against a person precisely because of how bad this evidence is. Even if Steven Avery had murdered someone, it would not be evidence of him murdering this person. This hardly deserves a response, and you should not fall for this.

Conclusion and Wrap Up

So… If you have ever become confused by any of these points, I hope that clarifies some things. Additionally, don’t forget my previous post about the bad science of the bullet.

Now, is it still possible that Steven Avery is guilty? Sure. Of course. Anything is possible. Avery could have killed her in a completely different way than the prosecution guessed (and yes, I said “guessed.”) But is there any good evidence that Steven Avery killed her? Nope.

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