Making A Murderer: An Alternate Theory


(If not evident from the title, this write-up contains spoilers for the entire series and assumes a reasonable familiarity with the details of the case.)

 
 
If anything can be said about Netflix’s Making A Murderer, it’s that it will make you think. Oh it will make you swear, too — a lot. But after the emotion whipsaw has subsided and the rhapsodic conversations with family and friends taper off, questions both big and small continue to beckon. Questions about the efficacy of our criminal justice system. Questions about DNA evidence and crime scene protocol. Questions about the average competence of a jury. Questions about human nature, about how far lawmen might go to secure a wrongful conviction when incentive is strong.

These and other questions touch on the larger context to which the documentary clearly and successfully points, but many of us can’t help but be transfixed by the most intriguing question of all: did Steven Avery do it? Well, did he? While filmmakers Moira Demos and Laura Ricciardi don’t come right out and answer this question, it’s clear where their sympathies lie. The series is told from the perspective of the defense, with the inbuilt narrative making an impressively powerful case that the undisputed miscarriage of justice which befell one low-class Wisconsin resident in 1985 was merely the lead-in to a more disquieting and drawn-out sequel.

Lead prosecutor Ken Kratz has fired back, airing evidence presented in court but omitted from the documentary. The directors responded, saying they had no choice but to leave out certain details given that Steven’s story spans three decades and their 10-hour production is condensed from more than 700 hours of material, but that the information left on the cutting room floor was not significant. Avery’s defense attorneys have also been quite vocal since the series’ release, with Jerry Buting speaking with Rolling Stone and Dean Strang appearing on The Kelly File and elsewhere.

Who are we to trust? The amphetaminic web series, and the ensuing public interest in the case, has essentially split viewers into two camps, either of which are reasonable destinations after weighing all available evidence. One side concludes that despite some terribly shady-looking activity on the part of law enforcement, Steven Avery was indeed responsible for the murder of Teresa Halbach. One can be convinced both that the right man was put away while fully acknowledging the fallibility of the criminal justice system and the myriad failings of those in its employ. Put differently, the notion that an institution is shot through with corruption and ineptitude isn’t necessarily at odds with justice ultimately being won for the bereaved family.

The other camp, a more impassioned bunch no doubt, finds the abuses of power too overt and too legion, contending that the preponderance of evidence (or lack thereof) not only warrants grounds for reasonable doubt, but exonerates Avery entirely. Let’s review briefly the apparent breakdowns of due process that have given rise to reasonable doubt in the minds of many viewers:

  • Why it took two different police departments four days to find the victim’s valet key in Avery’s bedroom (the first search was on 11.5 but the key wasn’t found until 11.8), when as many as 200 police officers began combing the Avery property the day Teresa’s vehicle was found.
  • Why it just so happened to be Lt. Lenk, a Manitowoc County cop, who found the key and not one of the Calumet officers who were in charge of the case due to the deep conflict of interest.
  • Why the key only had Avery’s DNA on it and none of the victim’s.
  • Why none of Halbach’s DNA was ever found in Avery’s trailer, when according to the prosecution’s own theory that is where she is tied up, raped and stabbed with a knife.
  • Why Lt. Lenk’s timeline for the day the victim’s vehicle is found was altered during his testimony at trial, notably in the direction of absolving suspicion. In his earlier deposition, he said he arrived AFTER the timesheet was started (2:00 PM), but then at trial his story changed, placing his arrival BEFORE 2 PM, presumably because he needed to explain why he had signed out on that sheet but never signed in if he did indeed arrive after 2 PM.
  • Why Avery didn’t destroy Halbach’s vehicle and the mysterious valet key using his very own car compactor located a short distance from where the victim’s vehicle was found. Others on the property testified to him using it the very day before the vehicle was found. Most killers could be so lucky.
  • Why Teresa’s blood DNA was found next to Avery’s in her vehicle, since this also does not fit with the prosecution’s own theory. According to the State, Avery killed the victim in his garage and then burned her in the pit outside his house.
  • Why the bullet fragment in the garage later tied to Halbach’s murder wasn’t found until four months into the investigation, on a day that Lt. Lenk, again, just happened to be on the scene, and why Lenk was there at all given that this was Calumet County’s case, not Manitowoc’s.
  • Why no other DNA from Teresa was ever found in Avery’s garage, apart from that bullet, despite county police’s claim that this was the murder site and that she was shot multiple times.
  • If Avery shot Halbach in his garage, per the prosecution’s own theory, why was there evidence presented at trial that Avery’s gun had not been fired for some time?
  • Given that the body was clearly moved after being burned, why would someone burn a body somewhere else, then bring it back to their own house? And why would he have left Teresa’s personal artifacts (i.e., phone, camera and PDA) in a barrel 20 feet from his door when he had ample time to more properly dispose of them?
  • And finally, most perplexing of all is motive: Why would Avery, a man who was recovering his life after being wrongfully imprisoned for 18 years, do anything to return to prison? Why would he target Halbach, who was there to snap photos of a car to be sold? And why would Avery, on the cusp of winning a $36 million payout from the county in his civil suit, endanger his winnings?

Naturally, if we accept this stronger claim that Avery was framed for the second time in his life, we are confronted with the question of what did happen on that ominous Halloween day. A young woman met her end, her life ripped away in an undoubted tragedy. And if Steven Avery is serving time for another crime he didn’t commit, the culprit is still out there, uncharged and unconvicted.

Several alternate theories have been floated around, but I think the one described below — cobbled from two laps through the documentary, uncounted hours of Reddit sleuthing, and careful review of the transcripts from both the Avery and Dassey trials — is maximally plausible given the available facts of the case. What follows in no way proves Avery’s innocence; indeed, there are several problematic aspects of this case that may never be resolved unless new evidence comes to light. But if the third-party liability statute which precluded Avery’s defense from pursuing other suspects did not apply, I believe this is the account that would fall out with the least amount of friction.

This is a Scott-and-Bobby theory, loosely adapted from one that’s recently received a lot of play. I deviate from the original construction in several places but ultimately pin the murder on the same suspects: Brendan’s brother, Bobby Dassey, and Brendan’s stepfather, Scott Tadych, both of whom live in the house directly across from the Avery residence.

The circumstantial and other non-forensic evidence are as follows. It was their van Halbach was on the property to photograph to begin with, and it’s likely they knew in advance she would be there. They are the only other people we know of who were on the property the same time Halbach was, and both said they saw each other during the time of the crime, thus serving as each other’s alibi. It was their burn barrels in which some of the victim’s remains are found. Let’s take a closer look at them in turn.

Scott Tadych. It’s clear from how many of Scott’s co-workers Calumet investigators spoke with that he was taken seriously as a suspect. One co-worker described him as a chronic liar who “screams a lot” and is a “psycho.” A different co-worker characterized him as “not being hooked up right” and someone who would “fly off the handle at everyone at work.” Another said he “is a short-tempered and angry person capable of murder.” Scott has a history of sexual assault against women and spasmodic violence, which you can read all about here and here. One woman even filed a restraining order against him.

Yet another co-worker, Jay Mathis, said Scott tried to sell him a .22 rifle in the days following Halbach’s disappearance, the same type of gun police alleged had killed her. On the day of Steven’s arrest, a co-worker reported that he was a “nervous wreck” when he left. Another co-worker remembered Scott commenting that one of the Dassey boys had blood on his clothes, and that the clothes had “gotten mixed up with his laundry.”

Scott gave questionable testimony at trial. He initially told police that the flames from Steven’s bonfire were 3 feet high, but in court he said the flames were 10 feet high. That’s not a minor difference and could be interpreted as a gross exaggeration made by someone who wants to put Steven away.

Finally, according to court transcripts, DNA Technical Lead Sherry Culhane testified that buccal swabs were obtained from Barb Janda, Bobby, Brendan and Brian Dassey, and Earl, Chuck, Delores and Allen Avery to create DNA profiles for testing forensic evidence. Who is missing from this list? Scott Tadych. I have yet to hear an explanation as to why the DNA lab did not have a profile prepared for Mr. Tadych, especially given that he was the one of the few people on the property during the critical period. This has bothered me profoundly from the moment I came across this information.

This is all the more agonizing when you learn that a “questionable stain” found at the quarry (Exhibit 313, item CX), which later tested positive for blood, and a “mystery fingerprint” recovered from the hood of the victim’s vehicle, were never tested against Scott — again, because there was no DNA profile ever made for him. The blood stain is only tested against three people: Steven and Alan Avery and Bryan Dassey (all negative), and the print did not match Steven Avery, Avery’s mom or dad, Avery’s brothers, the three Dassey brothers, Barb Janda, or Scott Bloedorn (Halbach’s roommate). At trial, the defense asked if the print was compared to Tadych, the state said it was irrelevant per the third-party ruling, and the court sustained the objection.

Bobby Dassey. Bobby had scratch marks on his back when he came in for questioning. He said they were from a puppy, though it’s never clear whose puppy since the Dasseys did not own a dog. According to the transcripts, “the examining physician stated that the scratches looked recent, and that it was unlikely they were over a week old.”

Bobby was not even able to establish a full alibi for the day in question. He told police that Scott “would be able to verify precisely what time he had seen” him leave to go hunting. This sounds rehearsed, as if he knows their stories need to match, so he simply defers to his accomplice.

Finally, almost none of Bobby’s testimony at the Avery trial was corroborated, and parts of it were outright refuted. He claims to have seen Halbach going into Steven’s trailer at 3:00 after snapping the photos. Not only was none of her DNA ever found there, but this timeline was refuted by the schoolbus driver at Avery’s trial, who said she saw Teresa taking photos at 3:30-3:40 when she dropped off Brendan and Blaine Dassey.

He was also caught in a lie on the stand when he recounted a joke Steven allegedly made about “getting rid of the body.” It was Bobby’s friend (who did not testify) who originally claimed to have heard the joke on 11.10, per an earlier witness statement to that effect. Bobby places the joke on 11.3 instead, before Halbach had even been reported missing, effectively requiring Steven to explain an awkwardly self-incriminatory joke. Why?

According to Avery’s appeal documents filed in 2009, the defense suggested it could have been Bobby in their closing arguments, but due to the aforementioned third-party liability statute, it was stricken from the record. The appeal itself includes both Bobby and Scott in their list of alternative suspects, with Scott chief among them.

I reserve judgment on whether Scott was the main perpetrator or whether Scott and Bobby were equally responsible. Thus, wherever you see “they” below, this is meant to be read as “Scott and/or Bobby”. At any rate, both of them lied throughout the investigation and at Avery’s trial. They clearly wanted Steven gone, perhaps due to bad blood between the families, or because they wanted him to take the fall for something they did. Given the available facts of the case, we can assign a fairly low probability that either of them are entirely innocent of Halbach’s disappearance and subsequent death.

So how did they do it? I’ll start by sketching the basic arc of events, then shape it up by addressing the various outstanding questions readers may find the most difficult to answer. So that you are better able to follow along, I recommend bookmarking the case timeline from here, the layout of the entire Avery property from here, and the trial transcripts from here.

What Really Happened

The day is Monday, 10.31.2005. Scott takes the day off from work. He has asked Steven for help in selling his van, since Steven normally does this sort of thing and has met with other Auto Trader reps before, including Halbach, who had been on the property as many as 15 times in the past year, according to Steven’s own statement.

Halbach arrives sometime after 3:00 PM, meets briefly with Steven, takes her photos and proceeds to leave shortly after 3:30-3:40 (the time the bus driver testifies to seeing her taking photos). It is at this point that an altercation occurs between Halbach and Scott or Bobby. They either cross paths before she makes it back to her vehicle (we don’t know where she parked) or as she is driving off the property. They detain and toss her in the back of her SUV, violently enough that traces of her bloodied hair are smeared on the walls of the cargo area.

They drive Halbach to the Michels Materials Quarry, a gravel quarry a quarter-mile away from the property, where they shoot her with Scott’s .22 rifle. (She may have been raped, but we have no evidence one way or the other.) Immediately afterward, or at some point over the next few days, they burn her body. The forensic expert at the Avery trial says that in cases where bones have been moved, most of the bones are usually found where the bones have been moved to. If so, this is inconsistent with the original burn happening in the fire pit by Avery’s house since this is where the majority of the bone fragments are found. The evidence points to an off-site burn location.

In attempt to frame Steven, they use one of Barb Janda’s burn barrels to gather Halbach’s cremains from the gravel quarry and distribute them around the burn pit near Steven’s trailer. They leave some of the cremains, along with Teresa’s charred phone, camera and PDA, in the burn barrel and place it 20 feet from Avery’s door. They aren’t thorough and some bones are left behind at the quarry pile. This explains why Halbach’s cremains were found at three different sites.

This version of events also explains why none of the victim’s DNA was ever found in Avery’s trailer, which would be virtually impossible if Brendan’s “confession” was true, and hence no physical evidence corroborating Bobby’s testimony that he saw Teresa going into Steven’s trailer.

At some point on or before 11.3, they move Halbach’s vehicle to the rear edge of the salvage yard, cover it with a few branches, and take the keys. Whether they intended to come back later and destroy the vehicle using the nearby compactor is unclear. Perhaps neither of them know how to operate the machine, or are worried that using it would attract too much attention. Regardless, they leave the vehicle intact, without cleansing the inside of possible DNA and prints. The original RAV4 keys are never found.

At this point Bobby and Scott simply play the waiting game, anticipating that the evidence will eventually lead an already incentivized Manitowoc County to Avery’s front door.

On 11.3, Sergeant Colborn arrives at the Avery property to question Steven. This is where the story about the license plates comes in. Colborn (or perhaps his private investigator) returns to the Avery property later that night sub rosa and locates Halbach’s vehicle. This is an illegal search as he is on private property. He calls in the plate number to dispatch, who confirms the car belongs to Teresa Halbach. At this point, Colborn realizes how fishy it would seem that he was reading off a plate number from a vehicle before it was officially found, and that his illegal search directly violates the exclusionary rule. He then removes the plates, crumples them and throws them into a nearby car. This explains how, according to the transcripts, Teresa’s plates are found 11.8 in a junked vehicle on the path to Steven Avery and Brendan Dassey’s residence.1

Assuming the valet key found five days later in Steven’s bedroom was planted, this may have been the time it was obtained. Colborn, either of his own accord or under the direction of Lenk, may have decided to take something from the inside of her vehicle to plant later, as an insurance policy against the vehicle not being admitted into evidence. It’s also possible the key was taken after the vehicle was impounded and taken to the Wisconsin State Crime Lab.

To ensure the vehicle is part of an untainted tree of evidence, Colborn coordinates with Lenk and they arrange a volunteer search team led by Mike Halbach (Teresa’s brother) and Ryan Hillegas (Teresa’s ex-boyfriend). Two days later, on 11.5, the search team arrives at the Avery property and Steven’s brother Earl agrees to let them search the property. It’s not clear how much advance guidance Colborn and Lenk gave the search party, but given that Pam Strum finds it just 20 minutes after arriving at the 44 acre property, it’s fairly obvious someone was tipped off ahead of time. Search warrants are obtained and Teresa’s vehicle is now in police custody.

The discovery of the vehicle sets off a massive investigation (Special Agent Tom Fassbender is appointed lead investigator) in which hundreds of officers from Calumet and Manitowoc Counties swarm the Avery property. Manitowoc personnel, operating under the heel of Avery’s lawsuit, are thrilled at this new development. But after three days of searching Avery’s trailer, garage and salvage yard, investigators turn up no forensic evidence linking Avery to Halbach’s disappearance.

On 11.8, four days after having official access to the Avery property, Lt. Lenk plants Halbach’s valet key — daubed with Avery’s DNA and only Avery’s DNA — on Avery’s bedroom floor. He is able to do this because, as Sgt. William Tyson of Calumet County PD testified in court, Mr. Tyson did not accompany Lenk and Colborn when they re-entered Avery’s residence for the second time on 11.8. This is also the day that DNA from Avery’s blood is found in the RAV4 and Halbach’s cremains are found outside Avery’s trailer.

The evidence uncovered up to this point, while convincing, isn’t necessarily dispositive, given that they had yet to find a shred of the victim’s DNA in either of the proposed sites of the murder — Avery’s house or garage. The stakes of this case are as high as ever. Nearly four months later (on 3.1.2006), after questioning Brendan for the second time, another warrant is issued and law enforcement officers return to Steven’s property to search for additional evidence. Lenk is on the scene this day — despite Calumet, not Manitowoc, having primary purview of the case — and plants a bullet fragment in Avery’s garage, later confirmed to contain Halbach’s DNA.

With the victim’s cremains outside Avery’s trailer, the valet key in Avery’s bedroom, both Avery’s and the victim’s blood in the victim’s vehicle, and a bullet fragment with the victim’s DNA in the garage, Manitowoc County have enough to secure a conviction. What they don’t realize is that Bobby Dassey and Scott Tadych killed Halbach and distributed evidence to frame Steven for a crime they committed. That is, both Scott-and-Bobby and Manitowoc police framed Steven, albeit completely independently.

It’s critically important to emphasize here that Manitowoc County Sheriff’s Department genuinely believed Avery murdered Halbach. It’s not that they doubted Avery’s guilt but framed him anyway, knowing all the while that the true killer was still out there. It’s precisely the other way around: they framed him for a crime they believed he DID commit.

Given the stakes of the case, law enforcement grew desperate, and salted the evidence in their favor. The threat of Avery’s pending lawsuit loomed large, the payout of which would leave the county in dire financial straits. Even a lesser settlement would drain them of their resources. There would be widespread layoffs within and without the law enforcement community. Though not personally liable for the lawsuit, key players would be forced to resign out of social pressure or personal shame for allowing the actual rapist to roam free and reoffend while Avery sat in prison. And if they got this one wrong, too, the potency of Avery’s suit would have multiplied tenfold. The incentive to clinch this case was nothing short of spectacular. Manitowoc County wanted guarantees.

Lingering Questions

This chain of events hardly settles all of the mysteries swirling around nearly every corner of this grisly and fact-deprived case. Let’s examine some of the questions left open by the scenario sketched above.

Motive? Manitowoc’s couldn’t be more clear, but what about Scott and Bobby? The fanged hostility both of them show toward Steven during depositions and at trial indicates that they did not like Steven. Bobby told a Calumet investigator that Steven would lie in order to “stab ya in the back.” Perhaps they were fed up with the cavalcade of negative attention and press their family received because of him. Perhaps due to a long-running animosity, Steven told them they would get none of the money from his lawsuit. Lastly, there have been unverified rumors that Steven molested one or more members of the family. Sending Steven back to jail may have been viewed as penance.

None of their DNA in the vehicle? This is a big one, and could possibly collapse this theory singlehandedly. You have to accept that neither Scott nor Bobby left their DNA in the victim’s vehicle from moving it to its discovered location. Since they didn’t use the nearby compactor or make any effort to rid the vehicle of Halbach’s blood later discovered by forensics, any traces of their DNA would have been preserved, too. Perhaps they were exceedingly careful in moving it; perhaps the forensics team didn’t find any when it was in fact in there (false negative); perhaps law enforcement systematically crushed leads and evidence escorting them to suspects not named Steven Avery. Or perhaps they aren’t responsible for this crime. Ultimately, for this theory to work you have to believe that Scott or Bobby were capable of pulling this off without incriminating themselves.

How Avery’s DNA did end up in and on Teresa’s vehicle? On 11.8, 6 male blood stains are found inside the victim’s RAV4. All 6 were DNA-matched to Steven. Given that the EDTA test — EDTA is an anticoagulant used to preserve blood samples — conducted by the FBI was inconclusive, the possibility remains that county investigators tampered with the blood vial held in Avery’s evidence locker from the 1985 case and planted his blood in the vehicle. Contrary to the documentary’s “eureka!” moment inspired by the vial’s pierced rubber stopper, this is actually standard protocol. However, the prosecution’s own expert testified that the rubber cap itself had been removed, which Strang and Buting incorporated into their closing arguments as part of their planting theory. Without a more robust EDTA screen, we may never get to the bottom of this one.2

Another potentiality (less likely) is that since Scott and Bobby had access to Steven’s trailer, one of them obtained Avery’s bloody wrap from the cut on Steven’s finger and smeared some of it in various places inside the vehicle after leaving it at the edge of the salvage lot, careful to not leave any of their own in the process.

As for the alleged “sweat DNA” found under the vehicle’s hood latch also matched to Avery, something Kratz has made heavy weather of in recent weeks, a few points are in order. First, there isn’t actually any such thing as “sweat DNA”; sweat can contain DNA in the form of sloughed off skin cells or other types of cells, of course, but sweat consists purely of water and electrolytes. During the trial, DNA Technical Lead Culhane testified that the sample was too small to determine the source of the DNA (which is why she didn’t run a presumptive test for blood). Like the bullet retrieved from the garage, the DNA was considered “unspecified.”

Secondly, the blood spatter expert (Nick Stahlke) who retrieved the sample from the vehicle testified that he went under the hood to see why the car wouldn’t start after handling other evidence and did not change his gloves. Stahlke could have transferred residual blood from the vehicle to the hood inadvertently, as Buting and Strang argued in court, and Stahlke indeed testified to this possibility. This would explain why Avery’s fingerprints weren’t found on the hood latch he would had to have touched to leave that DNA in the first place, and, for that matter, why none of Avery’s fingerprints were found anywhere on Halbach’s Toyota. The matter was left unresolved at trial.

No one else saw anything? This theory also does not seem to explain why Steven, or Brendan and Blaine Dassey, also on the property at the time, didn’t notice or hear anything out of the ordinary when all of this was going on. Teresa would have been intercepted before exiting the property. Was it really the case that no one else detected anything suspicious?

Brendan Dassey’s confession. For many viewers, Brendan’s “confession” (video and transcripts here) is the hardest to explain, or even understand. Most people cannot begin to grasp what it is like inside the head of a person of limited mental capacity bordering on intellectual disability (his IQ falls between 69 and 73) and the ease with which a confession can be elicited by an authority figure given the substantial power imbalance at play. In fact, it’s not very difficult at all.

This is one area the documentary got exactly right. Brendan — who was enrolled in special education classes at school — was in no way responsible for this crime. The only confession that 16 year old gave was a coerced one. The documentary shows excerpts from his third session on 3.1.2006, because those were videotaped, but if you want to witness how the mechanics of Reid-style interrogations play out in real time, you need to start with Brendan’s first session with agents Wiegert and Fassbender at his high school on 2.27.2006 (transcript here). It’s not Brendan — who barely speaks at all — but the detectives who do all of the talking and verbalize all of the incriminating details. The two are relentless in their concern for Brendan’s “honesty” — code for giving his interrogators what they want to hear — and apply all of the tactics proven to extort guilt and false confessions from innocent youth.

This calculated nudging toward their version of the truth becomes obvious when Fassbender says “I know you saw something and that’s what’s killing you more than anything else, knowing that Steven did this, it hurts.” They are leading a compliant individual with selective placement of misinformation — prompting the phenomenon known as imagination inflation.

This is why all of Brendan’s statements contradict one another. Through repetition and suggestion, the detectives have implanted a general narrative in his head, and it doesn’t hold up to scrutiny when they press him for specifics; Brendan is shooting in the dark as much as they are. He simply wants out of that room, and feeds them what he thinks they want to hear. The one thing Brendan is truthful about is his weight loss, which was not from wrestling with an unspeakable secret, but unrequited affection from a recently lapsed relationship.

Whatever we decide about his uncle, there is no doubt that our justice system utterly and tragically failed Brendan Dassey. That was one confused, helpless, manipulable boy in those interrogations, and the very flawed circumstances surrounding his supposed “confession” should have rendered it inadmissible. And that’s before we even get to that pox of a lawyer the court appointed him. Who is there to speak for Brendan, and for others with his cognitive limitations? When the very powers that ought to protect the disadvantaged betray them with coercion and ill will, it erodes our trust in the system as a whole.3

The bleach on Brendan’s jeans. This was submitted into evidence at the Dassey trial but was left out of the documentary. When questioned by Fassbender and Wiegert on 3.1.2006, Brendan says that on the day Teresa met with Steven he was helping his uncle fix up cars in the garage, when Steven “poked a hole in somethin’ and then it started leaking,” and that he helped Steven clean up the spill later that day. When they asked him what he was wearing that day, Brendan said he was wearing jeans and that they were at his house. When the detectives searched his house, they found his jeans and they had bleach stains on them. Brendan’s mother Barb corroborated Brendan’s story, stating that the stains were from Brendan helping Steven clean the garage on Halloween.

Luminol tests indeed showed evidence of bleach being used in the garage. The expert during the trial says that there was a “random distribution” throughout the garage but that one spot stood out in particular — a 3×3 or 3×4 ft area which lit up the luminol test. Bleach, both of the chlorine and oxygen variety, are capable of breaking down DNA, and we know that none of Halbach’s DNA was found in the garage other than the bullet retrieved the same day Brendan is questioned that second time. What are we to make of these facts?

Either we believe Brendan’s explanation that they cleaned up a car spill, or we believe the state’s theory that they cleaned up after murdering Teresa. Here I have to believe Brendan, because I find it highly implausible that these two absurdly low-IQ individuals were able to scrub that garage such that no DNA of the victim they allegedly shot and killed was left behind, without any seepage into any of the cracks or breaks in the concrete. Not only do I think they’re incapable of such a feat, it strains credulity to suppose that they accomplished this while leaving the other evidence — Teresa’s vehicle, her cremains, and her personal artifacts — all in plain sight. And given how many times law enforcement combed that garage and still came up empty-handed, I’m inclined to believe Brendan and his mom. Teresa simply was not killed in that garage.

Then how did a bullet with Halbach’s DNA on it end up in the garage? It’s known that several people living on the Avery premises owned .22 rifles and that they were used often for hunting purposes. That there would be bullet fragments and shell casings scattered all over the Avery property is not the least bit surprising. That Halbach’s DNA would be found on one of them, but not anywhere else in the garage, the same garage Avery supposedly scrubbed clean but somehow forgot the inculpating bullet? Well, that’s a different story.

It’s obvious to me the bullet was planted, and I think it likely that Lenk was the one who planted it since it mysteriously went unnoticed until the day he shows up on the scene, just like the key. Moreover, he specifically chose a flattened bullet since he would know this would be difficult to trace back to a specific gun.

The other piece to this particular puzzle is Culhane, the DNA technician assigned to the belatedly found bullet. Like the hood latch DNA, the sample she was provided was too small to determine whether it contained blood or some other DNA source. There seems to have been some unusual pressure from certain Manitowoc law enforcement on Culhane. According to her notes from 4 or 5 months earlier, Culhane was encouraged by Detective Fassbender to “put her [Halbach] in the trailer or garage”. This is sketchy enough, but we then learn that Culhane had contaminated the sample with her own DNA due to carelessness.

My own theory here is that Culhane knew what they were asking of her was unethical and thus intentionally contaminated the already very small sample as a way out, as opposed to going along with their demands or blowing the whistle on her colleagues during a high-profile case. You can get away with saying you made a mistake in the lab, but not with admitting that you fabricated a DNA match. In the event that it was eventually proven that Teresa was not even shot (e.g., the real killer confesses one day to killing Teresa a different way), she did not want to be implicated in Manitowoc’s scheme to plant DNA evidence at a crime scene. So her original plan was to contaminate the sample with her own DNA to rid herself of the matter. Having used up all of the sample at that point, it could not be re-tested.

In the end, though, she gave them what they wanted. Due to the mounting pressure of the case, and being guaranteed by Fassbender that Avery is the guilty party, reminded of the stakes, and told how badly the DNA match was needed to secure the conviction, she changed her mind. Either the detectives sent her something new to use in order to make the match, or she used Teresa’s DNA that was already in her lab from the vehicle DNA tests, which she admitted in court was also on her workbench during the fragment testing. This is why she seems so obviously guilty on the stand, because she knows she cannot recount this full story without severely damaging her own reputation and that of the county’s.

Alternatively, it’s possible the bullet was not planted, that the sample Culhane contaminated was a genuine snafu, and that a false match to Halbach was produced from another careless mistake.

But the bullet found in the garage not only had Halbach’s DNA on it, but it was forensically tied to Avery’s gun. This one’s actually not true. Buting discusses this in detail in his interview with Rolling Stone, saying that even though in theory a gun will leave behind a unique footprint or “tool mark” on any bullet fired from it, the ballistics expert could not definitively say the fragment they found in Avery’s garage was fired from Avery’s gun because it was flattened, masking the tool marks needed to definitively pair it to the gun. Secondly, there was evidence presented at trial that Avery’s gun had not been fired in a while. These two facts meant that the prosecution was not able to rule out that the flattened bullet was fired from a different gun.

The handcuffs and leg irons. Authorities found restraints — handcuffs and leg irons he had bought from a novelty store — in Steven’s bedroom, in accordance with Brendan’s “confession”. This goes back to the verity of that confession. If it was bogus, and we have every reason to believe it was, then it’s likely he simply cobbled a bizarre story together from objects he had seen around his uncle’s house. But in fact, we can be reasonably certain the story was a fabrication due to the total lack of forensic evidence supporting it. Culhane tested the handcuffs, leg irons, headboard and carpeting from Steven’s bedroom. Halbach’s DNA wasn’t found on any of it. They did find a mixture of DNA from 2 or more people on the irons and cuffs, leading us to more innocent reasons for the restraints. BDSM, anyone?

The “torture chamber.” Following the release of Making A Murderer, Kratz has come out and alleged that Avery, while in jail, told fellow inmates “of his intent to build a ‘torture chamber’ so he could rape, torture and kill young women when he was released,” and that “he even drew a diagram,” while “another inmate was told by Avery that the way to get rid of a body is to ‘burn it’…heat destroys DNA.”

If this sounds to good to be true, that’s probably because it is. If you want to survive past a day in prison, the one thing you don’t do is blab about raping women, the very crime for which Steven was serving. Rapists occupy the lowest rung in jail. Voicing his intentions to reoffend would be a certain deathwish for a long-term felon like Steven. And it goes without saying that the State is never short of inmates who heard ‘Defendant X’ say compromising things. Jailhouse snitches are a dime a dozen.

Secondly, the only evidence we have for this allegation is Kratz’s say-so. Insofar as it exists and was actually submitted to the court, the judge clearly didn’t allow it, as neither the diagram nor the hearsay evidence appear on the trial exhibits list. But quite apart from never being produced, it would not be enough to convict Avery even if true.

Jodi Stachowski’s allegations. A month after the documentary aired, Steven’s ex-fiancee agreed to an interview with HLN. She paints a very Jekyll-and-Hyde picture of Steven, much of which we already knew about, though she says he repeatedly beat her and threatened to kill her.

It’s difficult to determine who we should believe: the Jodi we see in the documentary or the Jodi we see today, more than a decade removed from her life with Steven. In 2005, we see her consistently sticking up for Steven and refusing to capitulate to the detective’s prodding. Moreover, if Jodi was as genuinely scared of Steven as she lets on, and truly believed Avery was guilty at the time — as she multiply affirms in this interview — then why didn’t she tell the police? There are no police statements or recorded conversations of Jodi rolling on Steven, anywhere. The filmmakers have also explicitly denied Jodi’s allegation that she asked Moira and Laura to leave her out of their documentary.

Steven’s rap sheet is aflush with unsavory behavior. He served 10 months for burglarizing a bar at age 18. At age 20, he and a friend poured gasoline on his own cat and threw it into a bonfire, a crime for which he served 9 months. And in 1985, mere months before his misbegotten sexual assault conviction, Steven was charged with running his cousin off the road and approaching her at gunpoint. We also know that he threatened to kill his ex-wife and kids, because the documentary showed the letters he had written her from jail saying just that. This is certainly information I’d want to know were I on the jury. In my opinion, the cumulative effect of Steven’s dissolute past suggests he is capable of murder generally, but it’s not enough to assign blame for Teresa’s murder in particular.4

The *67 calls from Avery. Teresa’s phone records and Steven’s phone records show 3 calls from Steven’s cell to Teresa’s on 10.31: the first at 2:24, the second at 2:35, and the third at 4:35. The first two calls, both made before she arrives, are placed using the *67 feature. She doesn’t answer either call. The third call is a direct call, placed without *67, and occurs after Teresa is believed to be either detained by the perpetrator(s) or already dead.

This bit, perhaps more than any other, has caused the most confusion among those defending Steven’s innocence. For me at least, it represents the strongest piece of circumstantial evidence against him. Note that the only *67 calls he made that day were to Teresa. To understand its significance, you have to inhabit the mind of a killer, and more specifically, a killer with the IQ level of Steven Avery.

Suppose Steven plans to rape (or murder) Teresa the day of their appointment. He is expecting her at the agreed upon time, but she is running late and he wants to make sure she’s still coming. He calls her using *67 not to hide his number from her, since he plans to talk to her, but due to a mistaken belief that this would hide his number absolutely, preventing anyone from proving he had talked to her that day. Steven is not tech-savvy, and doesn’t realize that telecom can still trace the source of *67 calls, even though they register as unlisted for the recipient. As Kratz has suggested, perhaps the third call is an alibi call so Avery can say she never showed up and that he was unable to reach her.

Since Halbach did show up, those committed to Steven’s innocence have proposed all sorts of innocuous explanations for that third and final call, after Steven says she had left: maybe he called to ask Teresa out on a date; to schedule their next appointment; to reschedule one they had just made prior to her leaving; or, as Steven says in his initial statement to police, to tell her he needed another picture for a different vehicle. None of these make sense of the two *67 calls, however, which are harder to decipher.

While at first glance the call history between Avery and Halbach seems to bespeak premeditation, it’s difficult to pinpoint exactly how it helps or hurts his case. And as far as can be told from the transcripts, very little was made of it at trial. It just doesn’t seem to have been a major interest for either side, most likely because it isn’t sufficient to establish guilt in isolation, and the State felt they had more than enough forensic and other evidence without confusing jurors with the *67 story.

Teresa’s deleted voicemails. Records from Cingular Wireless showed that one or more of Teresa’s voicemails were deleted after Teresa was reported missing. Strangely, both Mike and Ryan testified that they correctly guessed her voicemail password and Cingular account password, respectively — independently of each other — after a few attempts. Mike was able to access her voicemail from another phone, and Ryan was able to print off her cellular records, but both testified that they didn’t erase any voicemails, at least not knowingly.

Theories abound for this one as well. Perhaps Mike or Ryan had left some angry or unpleasant messages on her phone they didn’t want getting out. In this case, their hand in this extends no further than tampering with evidence. Others have wondered whether the voicemail(s) were deleted by mistake, possibly by impatiently skipping to the next message. Of course, that doesn’t explain why they didn’t just own up to this when the issue was raised. Regardless, we will never know the content of those deleted message(s) because telecom companies don’t hold on to phone records past a certain date, leaving another uncertainty lost to history.

Teresa’s mystery caller. During the trial, Teresa’s boss testified that she received a number of harassing phone calls in the days leading up to her disappearance, that she recognized the number, but “didn’t want to talk about it.” The caller has never been identified. Since Avery became a prime suspect very early on in the case, few if any resources were apparently spent in pursuing this line of investigation (among others). Failure to pursue other significant leads has always been central to the appeals filed by Avery’s lawyers. From whom was she screening calls? Answer this question, and we may have new compelling evidence to reopen the case.
 

 
If you’ve made it this far, congratulations: you’ve found a fellow obsessive. It’s also likely you can bring a good deal of insight to bear on the preceding theory. Let me know what I’ve missed, chime in with new developments (which seem to trickle in every other week), or tear this one down with a better one.

 

Supplement with:

 

  1. This is probably the most significant departure from the theory linked earlier, which has Mike Halbach and Ryan Hillegas, not Colborn, snooping around Avery’s salvage yard the day Colborn called in the plate number to dispatch. In that theory, the two show up under the cover of night at the last place Teresa was seen missing and stumble on her RAV4. They promptly call Manitowoc police, who send Colborn out to investigate. From here, the theories converge as Colborn calls in the plates, informs them about the unconstitutional search, and organizes a search party two days later.

    While intriguing, this sequence is implausible for a few very basic reasons. The first is that evidence discovered by a private citizen and later turned over to law enforcement, even if he or she was trespassing at the time, is legally admissible evidence. What’s more, that turned-over evidence establishes probable cause for police to conduct a legal search. The only instance where the evidence would be suppressed is if the citizen was not acting on their own, but under the direction of law enforcement or a public official, in which case that would constitute an illegal search.

    Second, if Mike and Ryan identified the car as Teresa’s point blank, there would be no need for Colborn to call in the plates. So we would still need to explain why he did that.

    Third, any calls made to the police department are recorded and logged on the department’s server. We have no record of any such call.

    And fourth, why would Teresa’s brother just sit on this information until the coordinated search two days later? Imagine how huge of a moment this would be if it were your sibling. Twiddling your thumbs at home for two days knowing all the while where her car is but that nothing has been done about it? I suspect not.

    Mike and Ryan’s being there is supposed to explain their strange body language when they are asked how they found the car and how oddly insistent they were that they had never been on the property. I think this is simply a red herring. The two are unaccustomed to being in front of the camera, and any signs of nervousness are better interpreted as them being affected by the sheer gravity of the tragedy in which they and their town are now embroiled. [↩]

  2. People have also pointed to the fact that the evidence seal containing the vial was cut and not properly resealed. Here again, the hype is louder than the reality. Court records show that Avery’s previous defense team met with the then Manitowoc DA in 2002 to reexamine evidence from Avery’s 1985 court file. The records show that on June 19, 2002 at 12:25 p.m., DA Fitzgerald “opened the box with the blood vial in it and closed it again two minutes later. It was believed the evidence tape seal was broken at that time, the court records say.” Far from being some nefarious event, the court approved the meeting prior to its taking place and Steven’s lawyers were present when it happened.

    [↩]

  3. Brendan’s letter he wrote from prison is on the short list of things in this convoluted case we can be all but certain are truthful.

    [↩]

  4. The other two allegations — that Steven sexually assaulted an underaged relative (unidentified) in 2004, and raped a 41 year old woman — have never been substantiated. These were reportedly affidavits filed by Ken Kratz at Steven’s bail hearing. These documents (or the women’s identities) have not been produced, and I’ve turned up zero concrete information. We should keep in mind that the standard for introducing a claim into a motion to deny bail is very weak. It’s not clear what the pretrial judge thought of these allegations, or whether he even saw the affidavits, but nothing related to them was submitted in evidence at either Avery’s or Dassey’s trial. If anyone has more information on this, drop it below.

    [↩]