UPDATE OCTOBER 3, 2017: A circuit court judge has denied Steven Avery's request for a new trial in the murder of Teresa Halbach. Sheboygan County Judge Angela Sutkiewicz issued a decision and order saying, "the defendant has failed to establish any grounds that would trigger the right to a new trial in the interests of justice. As such, no further consideration will be given to this issue."
Avery's attorney, Kathleen Zellner, released this statement to Action 2 News: "We are filing an amended petition because we have additional test results and witness affidavits. The scientific testing is not completed. We remain optimistic that Mr. Avery's conviction will be vacated."
Patch spoke with Zellner by phone from Seattle. She said the ruling by the Sheboygan judge should not be viewed as a major setback for her and her client.
Zellner said she and the Wisconsin Attorney General's Office recently worked out an agreement to allow for additional physical evidence testing upon the RAV4 of murder victim Halbach, and the judge apparently did not know this at the time she decided to move forward and issue her ruling against Avery."
"It's not really a big deal," Zellner said of the decision. "We'll be submitting a motion to vacate the order because we have an agreement reached between both parties and the judge assumed that all the scientific evidence had been submitted. We'll have more scientific evidence as well as new witness affidavits that we'll be submitting before Thanksgiving."
More case updates at this link:
http://georgezipperer.blogspot.com/2017/06/kathleen-zellner-files-post-conviction.html
END UPDATE
At about 10:30 a.m. on 11/5/2005, after 20 minutes of searching a 40-acre property with 4,000 vehicles, Pam Sturm found Teresa Halbach's RAV-4. At 11:30 a.m., about 30 minutes after law enforcement swarmed the Avery property, Manitowoc County deputy Jacobs asked: "Do we have Steven Avery in custody?"
The following are excerpts from the 1,200-page post-conviction petition filed on June 7, 2017.
Please take notice that the Petitioner, Steven A. Avery ("Mr. Avery"), by his undersigned attorneys, respectfully moves the Court pursuant to Wis. Stat. § 974.06 for an Order vacating the judgment of his convictions and sentence and ordering a new trial. In the alternative, he asks that this Court grant a new trial in the interests of justice pursuant to Wis. Stat. § 805.15 or its inherent authority because the real controversy was not fully tried. In support of this motion, Mr. Avery alleges the following: Mr. Avery requests an evidentiary hearing and that he be produced for that hearing. ...
Mr. Avery's current post-conviction counsel have completed scientific testing and conducted an extensive re-investigation of his case, which demonstrates that planted evidence and false testimony were used to convict Mr. Avery of the first degree intentional homicide of Teresa Halbach ("Ms. Halbach"). Mr. Avery's trial defense counsel, Jerome Buting and Dean Strang ("trial defense counsel"), and prior post-conviction counsel, Suzanne Hagopian ("Ms. Hagopian") and Martha Askins ("Ms. Askins"), were ineffective in failing to hire the experts needed to establish that all of the evidence used by the State to convict Mr. Avery was planted or fabricated. Trial defense counsel and post-conviction counsel failed to conduct a proper investigation to refute the State's timeline and theory of when, where, and how this homicide occurred and to meet the standard necessary to name third party suspects. ...
To understand how this happened, one must examine the other side of the coin: the performance of Mr. Avery's trial defense counsel. The State relied upon the following items of forensic evidence that allegedly linked Mr. Avery to the crime:
1) Mr. Avery's blood in the RAV-4;
2) Mr. Avery's DNA on the hood latch;
3) the electronic components (camera, palm pilot, and cell phone) in Mr. Avery's burn barrel;
4) the bones and remnants of Ms. Halbach's clothing in Mr. Avery's burn pit;
5) the Toyota key in Mr. Avery's bedroom with Mr. Avery's DNA; and
6) Ms. Halbach's DNA on the damaged bullet found in Mr. Avery's garage.
The State convicted Mr. Avery on this ludicrous theory because trial defense counsel only had two experts to combat the State's 14 experts. One of the trial defense counsel's experts performed at a substandard level, and the other was not as qualified as the State's expert. Trial defense counsel claimed evidence was planted but failed miserably in proving that assertion by lacking experts in bloodstain pattern analysis, DNA, ballistics, forensic fire, trace, forensic pathology, and police procedure and investigation. Additionally, trial defense counsel failed to conduct a thorough investigation of the victim's background, deleted cell phone calls, potential third party suspects, or to construct an accurate timeline of Ms. Halbach and Mr. Avery's activities on October 31, 2005. ...
Trial defense counsel, by not carefully reviewing the discovery and not having the appropriate experts, failed to realize the following:
1) Mr. Avery's groin swab had been substituted for the hood latch swab by law enforcement;
2) the key discovered in Mr. Avery's bedroom was a sub-key and was planted by Lt. Lenk and Sgt. Colborn immediately before its discovery;
3) Ms. Halbach's voicemail messages had been deleted by the killer to keep her voice mailbox open and delay her family and friend's realization that she was missing;
4) Ms. Halbach's last appointment was at the Zipperer's not the Avery's, and the CD of her voicemail left on the Zipperer's answering machine was concealed and/or destroyed by the State to mislead the jury into believing Ms. Halbach's last stop was Mr. Avery's;
5) the fuel level in Ms. Halbach's car was concealed by the State so that the mileage the vehicle had been driven on October 31 could not be determined, thereby preventing Mr. Avery from arguing that Ms. Halbach's vehicle had been driven many more miles after it left his property;
6) Ms. Halbach was at a higher risk for being a victim of violence because of her involvement in nude photography and her affair with a married man and with her ex-boyfriend's best friend;
7) Ms. Halbach's ex-boyfriend was verbally and physically abusive to her during their relationship;
8) Ms. Halbach's ex-boyfriend had sustained visible injuries to his hands, from fingernail scratches, around the time of her disappearance; and
9) Ms. Halbach's ex-boyfriend initially gave the police a false name, minimized his relationship with her, lied about crime scene evidence, controlled and led the searchers to Ms. Halbach's vehicle, had unrestricted access to the Avery property to plant evidence, assisted law enforcement in locating her car, and was living in her house after her murder in complete control of the evidence, disseminated to law enforcement, from her personal papers and effects. ....
Prior post-conviction counsel never had an investigator develop evidence about third party suspects that would meet the Denny standard, and they never hired experts in blood spatter, DNA, ballistics, forensic fire, trace, forensic pathology, police procedure and investigation, brain fingerprinting, or prosecutorial misconduct, or a competent forensic anthropologist, or investigator. Current post conviction counsel has retained 10 experts and 2 investigators who have developed strong evidence that undermines confidence in Mr. Avery's verdict. ...
THE SOURCE OF STEVEN AVERY'S BLOOD THAT WAS PLANTED IN THE RAV4
On the evening of November 3, 2005, Mr. Avery was having dinner at his mother's residence and when he walked outside her residence, a uniformed officer pulled up in a MCSD squad car and asked if he could speak with him. Later, Mr. Avery learned that this individual's name was Sgt. Colborn. Sgt. Colborn asked Mr. Avery if a female from AutoTrader Magazine had come to the property on Monday to take pictures of a vehicle they were selling. Mr. Avery told Sgt. Colborn that a female from AutoTrader had come to the property at approximately 2:30 p.m. and had photographed a van his sister was selling. Mr. Avery contended that she was on the property for less than five minutes. Mr. Avery told Sgt. Colborn that he noticed her photographing the van and he exited his trailer to pay her. Mr. Avery observed Ms. Halbach leave the property and turn left on Highway 147. Sgt. Colborn misrepresented, in a report written months later, that Mr. Avery said 3:00 p.m., not 2:30 p.m. Mr. Avery's affidavit is consistent with all of his prior statements to police that Ms. Halbach was on the Avery property sometime between 2:00 p.m. and 2:30 p.m. (Affidavit of Steven A. Avery, Sr., "Affidavit of Steven Avery," attached and incorporated herein as P-C Exhibit 4).
Mr. Avery then drove his Pontiac Grand Am from his parents' residence to its usual parking spot in front of his garage. Mr. Avery then walked next door to his sister's trailer, where he attempted to unhitch the trailer. In so doing, Mr. Avery broke open the cut on the middle finger of his right hand. His finger was dripping blood as he walked back to his car to retrieve his cell phone charger. While in his car, Mr. Avery dripped blood from his finger onto the seats and the gear shift. From his car, Mr. Avery walked to his trailer, entering through the door at the south end. Mr. Avery dripped blood on the floor as he entered the bathroom to find a piece of tape to put on the cut. Mr. Avery dripped blood onto the rim and basin of the sink and the bathroom floor. He did not wash away or wipe up the floor or sink because his brother Charles Avery ("Chuck") was waiting for him to go to Menards in Manitowoc with him. He hastily wrapped his finger in masking tape and exited the trailer through the front door. Mr. Avery forgot to lock the south door on the front of the trailer. He did not clean the blood out of his sink prior to leaving the trailer at approximately 7:30 p.m. to go to Menards with his brother Chuck. (Affidavit of Steven Avery, P-C Exhibit 4). Menards in Manitowoc was an approximately 23-minute drive from the Avery property (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Avery and Chuck checked out at Menards at 8:06 p.m. (Menards Surveillance Video, attached and incorporated herein as P-C Exhibit 5).
Blood stains were noted on the molding (Item AA) and the inside living room door (Item CQ) of Mr. Avery's trailer (3/31/2006 WSCL DNA Report, attached and herein as P-C Exhibit 6, STATE 5245, 5249). Mr. Avery's Pontiac was unlocked and visible blood was on the gear shift. Anyone who examined the interior of his trailer or vehicle would have recognized that the locations of the various blood stains indicated Mr. Avery had a cut on his hand (Affidavit of Steven Avery, P-C Exhibit 4).
Mr. Johnson, a family friend of the Avery's and owner of Mr. Avery's trailer, remembers observing the cut on Mr. Avery's finger at least one week prior to October 31, 2005 (Affidavit of Roland A. Johnson, "Affidavit of Rollie Johnson," attached and incorporated herein as P-C Exhibit 7).
At approximately 7:30 p.m. [on November 3, 2005], Mr. Avery was exiting the Avery property onto Highway 147 when he observed taillights of a vehicle close to the front of his trailer (Affidavit of Steven Avery, P-C Exhibit 4; Menards Surveillance Video, P-C Exhibit 5). Mr. Avery contends that the only way the vehicle could enter his property from the direction it was pointed was if it was driven by way of Kuss Road and then across the field to the front of his trailer. Mr. Avery believes the vehicle's taillights were similar to those of the RAV-4 and not a squad car. Mr. Avery instructed his brother Chuck to turn around and drive back to the trailer, but by the time they drove back to Mr. Avery's trailer, the vehicle had departed into the darkness (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Avery and Chuck went to Menards and the county jail to drop off money for Mr. Avery's girlfriend (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Avery arrived home at approximately 10:00-10:30 p.m. Mr. Avery did not enter the bathroom and went straight to bed (Affidavit of Steven Avery, P-C Exhibit 4).
On November 4, 2005, Mr. Avery awoke at his normal time of 6:00 a.m. When he entered the bathroom of his trailer to take a shower, he observed that most of the blood in and around his sink had been removed (Affidavit of Steven Avery, P-C Exhibit 4).
Mr. Avery consistently expressed his belief to his attorneys and the media that the blood of his found in Ms. Halbach's vehicle was planted and that it came from his trailer. In one interview, he said he dripped blood from his finger into his bathroom sink (Video Clips from 11/9/05 NBC-26 WFRV interview and 11/18/05 WBAY interview, attached and incorporated herein as P-C Group Exhibit 8).
At 10:30 a.m. on November 4, 2005, Lt. Lenk and Det. Remiker arrived at the Avery property to interview Mr. Avery (Pages from MTSO Summary Report, P-C Group Exhibit 11, STATE 80). In the early evening, Mr. Avery smelled cigarette smoke when he entered his bedroom to retrieve a cable for his mother's television. Neither Mr. Avery nor his girlfriend smoked. Mr. Avery believes his trailer was entered unlawfully a second time (Affidavit of Steven Avery, P-C Exhibit 4; 11/9/05 Interview of Steven Avery and Execution of Search Warrant, "11/9/05 Execution of Search Warrant," attached and incorporated herein as P-C Exhibit 9, STATE 553-54).
On November 5, 2005, when Mr. Avery was preparing to leave for a trip to the family properly in Crivitz, he noticed the south front door of his trailer had been pried open. Specifically, Mr. Avery observed pry marks on the south door of his trailer (Affidavit of Steven Avery, P-C Exhibit 4; Affidavit of Rollie Johnson, P-C Exhibit 7). He remembered locking this door after Lt. Lenk and Det. Remiker left on the morning of November 4, 2005 (Affidavit of Steven Avery, P-C Exhibit 4).
As Mr. Avery's brother Chuck left for Crivitz [on November 4, 2005], he observed headlights in the area where Ms. Halbach's vehicle was discovered by the pond. Chuck called Mr. Avery at 7:20 p.m. to check on the headlights, but by the time Mr. Avery arrived by Chuck's trailer, the lights were gone (Affidavit of Steven Avery P-C Exhibit 4; Page from Steven Avery's Phone Records, attached and incorporated herein as P-C Exhibit 10; Pages from MCSD Summary Report verifying Chuck's phone number, attached and incorporated herein as P-C Exhibit 11, STATE 93). ...
BLOOD PATTERN ANALYSIS
Mr. James, a renowned blood spatter expert, has examined all of the relevant blood spatter evidence produced in discovery to trial defense counsel. Mr. James oversaw a number of blood spatter experiments and formed opinions based upon a reasonable degree of scientific certainty as a bloodstain pattern analyst.
Mr. James, based upon the experiments that he oversaw, opines that the blood spatter found in the RAV-4 was selectively planted because the experiments demonstrated that if the State's theory that Mr. Avery was actively bleeding from the cut on his right middle finger was true, then blood would have been deposited in many more places in the RAV-4 than where it was deposited.
The blood spatter experiments conducted with actual blood on the subject's middle finger conclusively demonstrate that the blood would have been deposited on the RAV-4's outside door handle, key, key ring, steering wheel, the gear shift lever, brake lever, battery cables, and hood prop. The blood found in the RAV-4 was only deposited in six places, not 15, and consisted of small drops of blood in the front of Ms. Halbach's RAV-4 on the driver and passenger seats, driver's floor, and the rear passenger door jamb.
Mr. James oversaw experiments that conclusively refute Mr. Kratz's argument that the "sheer volume, the sheer number of places rule out that the blood in the RAV-4 was planted." The experiments demonstrated that it was actually a small amount of blood that was planted in the RAV-4, and it was selectively dripped and one stain most probably was applied with an applicator (Affidavit and CV of Stuart James ("Affidavit of Stuart James"), attached and incorporated herein as P-C Group Exhibit 16).
Mr. James opines that the blood flakes detected on the carpet of the RAV-4 were planted because experiments demonstrated that blood dripped on RAV-4 carpeting would be absorbed in the carpet and would not form flakes on top of the carpet (Affidavit of Stuart James, P-C Group Exhibit 16).
Mr. James opines that the most likely source of Mr. Avery's planted blood was the blood deposited by Mr. Avery in his sink on November 3, 2005, and not blood from the 1996 blood vial. Mr. James, because of his familiarity with EDTA blood vials, opines that the hole in the top of the 1996 blood vial tube was made at the time Mr. Avery's blood was put in the tube, and the blood around the stopper is a common occurrence and does not indicate that the tube was tampered with (Affidavit of Stuart James, P-C Group Exhibit 16).
Mr. James opines that the blood spatter on the inside of the rear cargo door was the result of Ms. Halbach being struck with an object consistent with a hammer or mallet while she was lying on her back on the ground behind the vehicle after the rear cargo door was opened.
Mr. James opines that the State expert, Mr. Stahlke, mistakenly described the blood on the rear cargo door as having been projected from Ms. Halbach's bloodied hair after she had been shot and as she was thrown into the cargo area of the vehicle (Affidavit of Stuart James, P-C Group Exhibit 16).
Mr. James, by overseeing a series of experiments, opines that the State's description of the cause of the blood spatter on the rear cargo door, resulting from Ms. Halbach being thrown into the cargo area and blood being projected from her bloodied hair on the cargo door, is demonstrably false (Affidavit of Stuart James, P-C Group Exhibit 16).
The erroneous blood spatter testimony of the State's expert Mr. Stahlke resulted in the State presenting a false narrative to the jury about the sequence of events surrounding the attack on Ms. Halbach. The State presented a scenario where Ms. Halbach was already fatally injured in Mr. Avery's garage prior to being thrown in the back of the RAV-4. The experiments overseen by Mr. James demonstrate that Ms. Halbach was struck on the head after she opened the rear cargo door. She fell to the ground next to the rear bumper on the driver's side where she was struck repeatedly by an object similar to a mallet or hammer (Affidavit of Stuart James, P-C Group Exhibit 16).
THE BULLET
Dr. Palenik will testify that "there is no evidence to indicate that the bullet (Item FL) passed through bone. In fact, the particulate evidence that is present strongly suggests an alternate hypothesis, which is that the trajectory of the fired bullet took it into a wooden object, possibly a manufactured wood product. Furthermore, the presence of red droplets deposited on the bullet suggests that the bullet had picked up additional contamination from its environment at some point after coming to rest (i.e., droplets of potential red paint or a red liquid)." The State's theory that Ms. Halbach's cause of death was the result of being shot twice in the head with .22 caliber long rifle bullets is completely disproven by Dr. Palenik's testing. Because Dr. Palenik has determined that the damaged bullet (Item FL) never passed through bone (i.e., Ms. Halbach's skull), the State's evidence that Ms. Halbach's DNA was found on the damaged bullet (Item FL) is completely discredited. ...
Dr. Palenik examined the control samples submitted by Mr. Haag and determined that they did have bone particles embedded in them, even after they were washed in a solution in a similar manner to Item FL at the Wisconsin State Crime Lab ("WSCL"). Mr. Haag will offer the opinion that damaged bullet (Item FL) would have had bone particles embedded in it if it had been shot through bone such as a human skull. ...
THE HOOD LATCH
Dr. Palenik examined the hood latch swab (Item ID) that allegedly was used to swab the hood latch of Ms. Halbach's vehicle and allegedly contained Mr. Avery's DNA. Dr. Palenik has concluded, by a series of experiments of the trace materials on the hood latch swab (Item ID), that it was never used to swab a hood latch.
Dr. Reich will testify that the DNA on the hood latch did not come from Mr. Avery touching the hood latch, and most probably came from a relabeled groin swab. ...
THE KEY
Dr. Palenik has also examined the victim's key (Item C) found in Mr. Avery's bedroom, with his DNA on it, and has conducted a trace examination and experiments and has concluded that the victim's key (Item C) was not a key used every day by Ms. Halbach. ...
Dr. Reich will testify that the DNA on Ms. Halbach's sub-key located in Mr. Avery's bedroom did not come from Mr. Avery touching the key, but rather it came from another more prolific DNA source such as a toothbrush. ...
THE BONES
Dr. DeHaan will testify that Ms. Halbach's bones were planted in Mr. Avery's burn pit after being burned in a burn barrel. Dr. DeHaan will testify that Ms. Halbach's body was not burned in Mr. Avery's burn pit. ...
Dr. Symes will testify that the suspected human pelvic bone found in the Manitowoc County quarry should have been examined microscopically and histological slides should have been taken to definitively establish that this bone was human in origin. Establishing that the bone was, in fact, human would have supported trial defense counsel's theory that the bones in Mr. Avery's burn pit were planted. ...
THE BLOOD IN THE RAV-4
Mr. James will testify that the blood stains in the RAV-4 were selectively planted and 1 blood stain was placed by the ignition with an applicator. Mr. James will testify that Mr. Avery's blood did not come from the 1996 blood vial, but was instead blood dripped by Mr. Avery into his bathroom sink in 2005, which was removed and dripped into the RAV-4. Mr. James will testify that the blood stain on the rear cargo door was not the result of Ms. Halbach being thrown into the rear cargo area of the RAV-4 after she had been shot as the State contended. ...
THE INVESTIGATION
Mr. McCrary has investigated thousands of violent crime cases nationally and internationally. Mr. McCrary has worked extensively with international and national law enforcement agencies including Scotland Yard, the New York City Police Department, the Texas Rangers, the Boston Police Department, the Florida Department of Law Enforcement, and the California Attorney General's Office. Mr. McCrary has been qualified as a police procedure and crime scene investigation expert in the Seventh Circuit. Jimenez v. City of Chicago, 732 F.3d 710, 719-23 (7th Cir. 2013). Mr. McCrary will testify that the law enforcement investigation into the Halbach murder was deeply flawed. The investigation prematurely focused on Mr. Avery as a suspect while failing to study the victim, Ms. Halbach, to determine if she was at an elevated risk of becoming a victim of violent crime. Because the investigation shifted prematurely to a "suspect-based investigation," it ignored significant evidence that pointed to another potential suspect as the murderer of Ms. Halbach.
THE EXPERTS
James Kirby ("Mr. James Kirby") and Steven Kirby ("Mr. Steven Kirby").
Mr. James Kirby and Mr. Steven Kirby are both licensed Illinois and Wisconsin investigators. Mr. James Kirby has interviewed over 35 witnesses in regard to the Halbach murder case. He has uncovered evidence of the abusive relationship between Ms. Halbach and Mr. Hillegas. Mr. James Kirby has found evidence that Mr. Hillegas lied to law enforcement about the broken parking light in Ms. Halbach's car. He has interviewed witnesses whose statements were misrepresented by law enforcement officers investigating the Halbach murder.
Mr. James Kirby has conducted experiments that refute the State's theory that Ms. Halbach's electronic components were burned in Mr. Avery's burn barrel. Mr. James Kirby has investigated Mr. Avery's garage and participated in experiments producing information that was provided to Mr. Haag and Dr. Palenik, current post-conviction counsel's ballistic and trace evidence experts, respectively. Mr. Steven Kirby has interviewed Scott Bloedorn ("Mr. Bloedorn"), who inadvertently mentioned another suspect. ...
Dr. Blum will offer the opinion that the injury pattern on one potential suspect's hands is consistent with fingernail scratches that were inflicted during the timeframe of Ms. Halbach's murder. ...
Mr. Gershman is one of the nation's leading experts in prosecutorial misconduct. He has authored numerous articles and a book on prosecutorial misconduct. He is a former Manhattan prosecutor and current professor of law at Pace University. He has identified the ongoing ethical and Constitutional violations committed by prosecutor Kenneth Kratz before, during, and after Mr. Avery's trial. ...
Dr. Farwell has testified in court as an expert witness on Brain Fingerprinting. He has conducted research on Brain Fingerprinting at the FBI, the CIA, and the US Navy. TIME magazine named him one of the TIME 100: The Next Wave, the top innovators of this century who may be "the Picassos or Einsteins of the 21st Century." Brain Fingerprinting has been used in wrongful conviction cases and worldwide by different intelligence agencies. Dr. Farwell has conducted extensive brain fingerprint testing on Mr. Avery. He will offer his opinion, with a statistical confidence of 99.9 percent, "that Mr. Avery does not know certain specific details about the attack on Ms. Halbach. This salient crime-relevant information, which was experienced by the perpetrator when he committed the crime, is not stored in Mr. Avery's brain." The opinions of all of these experts, combined with the new investigation conducted by current post-conviction counsel's investigators, so strongly undermines confidence in Mr. Avery's verdict that justice demands that his conviction be vacated. ...
THE STATE'S TIMELINE AND NARRATIVE
Mr. Avery Was the Last Person to See Ms. Halbach Alive
According to Mr. Kratz, the only reason that law enforcement focused exclusively on Mr. Avery, almost immediately, was because Mr. Avery was the" last person to see [Ms. Halbach]." (TT:3/14:51). Mr. Kratz described a timeline of Mr. Avery's and Ms. Halbach's alleged activities on October 31, 2005, in an attempt to link Mr. Avery to the murder and mutilation of Ms. Halbach:
a. 8:12 a.m.: Mr. Avery called AutoTrader to set up a photo shoot appointment of his sister Barb Janda's ("Barb") Plymouth van. Mr. Kratz argued that Mr. Avery was using a pseudonym by giving AutoTrader the name "B. Janda." (TT: 3/14:82).
b. 9:46 a.m.: A voicemail from Dawn Pliszka ("Ms. Pliszka"), an AutoTrader receptionist, to Ms. Halbach, informed her of the B. Janda appointment and told her the phone number and address that was left.
c. 11:43 a.m.: Ms. Halbach called the number left by Mr. Avery and left a message on Barb's answering machine. Detective Dave Remiker ("Det. Remiker") testified that he searched Barb's trailer and came across a voicemail from Ms. Halbach saying she did not know the address and that she would arrive around 2:00 p.m. or a little later. (TT:3/14:86).
d. 1:30 p.m.: Steve Schmitz ("Mr. Schmitz") testified that Ms. Halbach was at his property to take a photograph while wearing a light colored or white shirt, waist length jacket, and jeans. (TT:3/14:88).
e. 2:24 and 2:35 p.m.: Mr. Kratz contended that Mr. Avery placed two calls to Ms. Halbach using the *67 feature, which prevents the called party from seeing who was calling, before her arrival. (TT:2/12:123).
f. 2:27 p.m.: A call between Ms. Pliszka and Ms. Halbach in which Ms. Halbach told Ms. Pliszka she was on her way to the Avery property. (TT:3/14:86, 89).
g. 2:30-2:45 p.m.: Barb's son Bobby Dassey ("Bobby") testified that he saw Ms. Halbach finishing her photo shoot of the Janda van and walking toward Mr. Avery's trailer. After taking a shower and leaving the Janda trailer, Bobby saw Ms. Halbach's RAV-4 parked next to Barb's Plymouth van that she had photographed. Bobby testified that he did not see Ms. Halbach. Mr. Kratz argued that because a photo shoot only takes five to ten minutes, Ms. Halbach should have left before Bobby got out of the shower. (TT:3/14:91-92).
h. 2:41 p.m.: A voicemail was received by Ms. Halbach's phone but was never retrieved. (TT:3/14:90).
i. 3:30-3:45 p.m.: Another of Barb's sons, Blaine Dassey ("Blaine"), testified that he remembered seeing Mr. Avery place a white plastic bag in his burn barrel. (TT:3/14:67, 90).
j. 4:35 p.m.: Mr. Avery placed an "alibi call" to Ms. Halbach's phone. (TT:3/14:93). Mr. Kratz claimed by this time, Mr. Avery had disposed of Ms. Halbach's phone in his burn barrel and had burned it. (TT:3/14:93). Mr. Avery had the foresight to call Ms. Halbach's phone so it would look like he was actually trying to reach her. (TT:3/14:93-94).
k. Around Dusk (approximately 5:20 p.m.): Mr. Fabian testified that he saw smoke and smelled plastic being burned in Mr. Avery's burn barrel. (TT:2/27:114-16).
l. 7:00-7:30 p.m.: Scott Tadych ("Mr. Tadych") testified that the fire behind Mr. Avery's garage was already burning and had flames reaching above the roof of the garage. Mr. Kratz claimed that Ms. Halbach had been killed by this time and Mr. Avery was then in the process of mutilating and burning her body. (TT:3/14:95).
m. 11:00 p.m. Blaine testified that he saw a large fire behind Mr. Avery's trailer. (TT:2/27:70- 71 ). ...
TERESA HALBACH WAS NOT KILLED BY TWO GUNSHOTS TO HEAD
Two Gunshots Caused the Death of the Victim
20. The State's forensic anthropology expert, Leslie Eisenberg ("Dr. Eisenberg"), claimed that the cause of Ms. Halbach's death was two gunshot wounds to her head that were "pre-burning." The State relied upon the testimony of Dr. Eisenberg, Kenneth Olson ("Mr. Olson"), and Dr. Jeffrey Jentzen ("Dr. Jentzen") to establish that the manner of death was a homicide. (TT:3/14:127-129).
Mr. Avery's Garage Had Room/or a Body
21. Mr. Kratz also relied on Blaine's testimony that one of Mr. Avery's vehicles, a Suzuki Samurai, and his snowmobile were not inside Mr. Avery's garage on October 31, 2005. (TT:3/14:67). Therefore, according to Mr. Kratz, Mr. Avery could have placed "something else" presumably a body, in his garage on October 31, 2005. (TT:3/14:67). ...
Ms. Halbach's DNA on Damaged Bullet (Item FL)
23. According to Mr. Kratz, the damaged bullet found under the air compressor in Mr. Avery's garage was subsequently found to have Ms. Halbach's DNA on it. (TT:3/14:79). Mr. Kratz stated, "Teresa Halbach is killed. She's laying down. She's shot twice, once in the left side of her head, once in the back of her head, or I guess I should more accurately say she's shot at least twice. Because two bullets were found, two entrance wounds were found to her head." (TT:3/14:98). Mr. Kratz explained that WSCL DNA analyst Sherry Culhane's ("Ms. Culhane") contamination of the control sample with her own DNA, during the testing process at the WSCL, did not diminish the results of Ms. Culhane's DNA comparison and subsequent identification of Ms. Halbach's DNA. (TT:3/14:114). Mr. Kratz argued that Ms. Culhane could not have inadvertently transferred Ms. Halbach's DNA from a "sealed envelope" onto the damaged bullet. (TT:3/15:88). Mr. Kratz stated that the WSCL contamination log showed only 89 contaminated cases out of 50,000 cases. (TT:3/15:94 ). ...
More Thorough Garage Search Done in March 2006
24. Mr. Kratz claimed that investigators searched the garage more thoroughly in March than they did in November, and for the first time removed the "junk" from the garage. (TT:3/14:79-80). The State's ballistics expert William Newhouse ("Mr. Newhouse") opined that the bullet containing Ms. Halbach's DNA and a casing were fired from the .22 caliber rifle Mr. Avery kept mounted above his bed. (TT:3/14:80). Mr. Newhouse testified that the ammunition found in Mr. Avery's bedroom was manufactured by the same manufacturer as the shell casings from his garage. (TT:3/14:80).
TERESA HALBACH'S BODY WAS NOT BURNED IN AVERY'S PIT
Primary Burn Site was Mr. Avery's Burn Pit
25. Mr. Kratz relied on evidence from the trial defense counsel's forensic anthropology expert, Dr. Scott Fairgrieve ("Dr. Fairgrieve"), to support the State's claim that Ms. Halbach's whole body was burned in one session in Mr. Avery's burn pit. The State pointed out that Dr. Fairgrieve testified that it would take between 1.5 and 2.5 hours to cremate a body at 1,600 degrees Fahrenheit. Mr. Kratz argued that Mr. Avery was able to achieve such a temperature by burning tires in his burn pit with the body. (TT:3/14:96). Mr. Kratz relied upon the testimony of Blaine and Mr. Tadych that the fire was burning from 7:30 p.m. or so until past 11:00 p.m., giving Mr. Avery "plenty of time" to cremate Ms. Halbach's body. (TT:3/14:96).
26. Mr. Kratz argued that the burn pit bones were" intertwined or mixed" in with the steel belt from the tires, and that was Mr. Kratz's strongest evidence that the burn pit was the primary burn site. (TT:3/14:97). Mr. Kratz explained that Mr. Avery's "vicious" dog, Bear, delayed the discovery of the bones on November 8, 2005, by intimidating the scent tracking dogs and their handlers. (TT:3/14:97).
27. Mr. Kratz admitted that WSCL analyst John Ertl ("Mr. Ertl") began recovering bones from the burn pit on November 8 using a shovel. (TT:3/14:98). Mr. Kratz claimed that a shovel was used by Mr. Avery to dismantle Ms. Halbach's body as it burned. (TT:3/14:98-99). ...
To support the identification of Ms. Halbach as the cremains in Mr. Avery's burn pit, Mr. Kratz relied upon the testimony of forensic dentist Dr. Donald Simley ("Dr. Simley"), who could not positively identify the only tooth recovered as belonging to Ms. Halbach, but testified that the identification "was as close to a positive match" as one could get, given that there was only one tooth available to be identified. (TT:3/14:102). Mr. Kratz cited the testimony of Ms. Culhane, who claimed she was able to identify a partial DNA profile of Ms. Halbach from one piece of bone and tissue recovered from Mr. Avery's burn pit. (TT:3/14:102-103). ...
Mr. Kratz showed the jury an animation image of a human skeleton and told them that at least fragments of each bone were recovered. (TT:3/14:105).
33. Mr. Kratz admitted in its rebuttal that "bones were moved in this case." (TT:3/15:75). Mr. Kratz argued that Mr. Avery "moved the big bones into his sister's burn barrel to direct attention away from himself." (TT:3/15:76).
34. In the closing, Mr. Kratz stated that he would take "20 seconds" to talk about the bones in the Manitowoc County pit. He said that these bones were "possibly human" so "it means that we don't know what it is" and neither did Dr. Eisenberg or Dr. Fairgrieve. (TT:3/15:78). ...
THE KEY WAS PLANTED
Mr. Kratz argued that even if the key was planted, as trial defense counsel claimed, the jury should "set the key aside" because there is "enough other evidence of Mr. Avery's guilt" and "that key, in the big picture, in the big scheme of things here, means very little." (TT:3/15:64). ...
LATENT FINGERPRINTS AND BLOOD FROM THE BATHROOM
Latent Prints on Car Were Not Suitable for Identification
39. Mr. Kratz pointed out that the eight latent fingerprints lifted from Ms. Halbach's vehicle by WSCL analyst Michael Riddle ("Mr. Riddle") "were not suitable for identification." (TT:3/15:82).
Mr. Avery's Blood from his Bathroom Could Not have been Planted in Victim's Vehicle
40. Mr. Kratz argued that the blood from Mr. Avery's bathroom could not have been planted in Mr. Avery's vehicle because that blood was collected by Det. Remiker and Sgt. Tyson on November 5, 2005, around 10:00-11:00 p.m. and the SUV was already enclosed and locked in a trailer on its way to the WSCL in Madison. (TT:3/15:87). ...
TERESA HALBACH WAS NOT KILLED IN THE GARAGE
State's Theory of Murder, Mutilation of Body, and Concealment of Vehicle
41. To combat the undisputed fact that none of Ms. Halbach's blood was found in Mr. Avery's trailer, Mr. Kratz claimed that it was the AutoTrader Magazine and bill of sale that linked Ms. Halbach to Mr. Avery's trailer. Mr. Kratz asserted, "she was in the trailer but she was not killed in that trailer." (TT:3/15:93). Mr. Kratz repeatedly stated that Ms. Halbach was "killed in Steven Avery's garage." (TT:3/15:97).
42. Mr. Kratz claimed that Ms. Halbach's vehicle was backed into Mr. Avery's garage. (TT:3/15:98). Ms. Halbach was killed by two gunshot wounds, one to the left side of her head and one to the back of her head, while she was lying down on the garage floor. (TT:3/15:98). Dr. Eisenberg described two entrance wounds to Ms. Halbach's head but no exit wounds. There were two damaged bullets eventually found on Mr. Avery's garage floor. (TT:3/15:98). Mr. Kratz relied upon Dr. Eisenberg, who testified that the defect in the parietal bone, above the left ear, showed the characteristic sign of an entrance bullet wound, and a second defect in the occipital region shows Ms. Halbach was also shot in the back of the head with a .22 caliber gun. (TT:3/14:128). Additionally, Mr. Kratz relied upon Mr. Olson, the State's trace metal expert, who testified that x-rays of the skull defects in the parietal region showed particles of lead. (TT:3/14: 128).
43. Mr. Kratz contended that Mr. Avery threw Ms. Halbach in the back of the cargo area of her own RAV-4 and, as he did so, blood from her hair spattered on the inside of the rear cargo door. (TT:3/15:99). Ms. Halbach landed diagonally in the back of the SUV and left a hair imprint on the side panel of the interior of the rear cargo area. (TT:3/15:99).
44. According to Mr. Kratz, Mr. Avery had to act quickly because "he [did not] know if the police [were] coming." (TT:3/15:100). According to Mr. Kratz, Mr. Avery burned Ms. Halbach's electronics on October 31, 2005, at 3:45 p.m., moved the RAV-4, then removed the license plates. (TT:3/15:77-78) ...
Mr. Kratz contended that by 7:30 p.m. on October 31, 2005, there was already a "big fire in the back." Mr. Kratz claimed that Mr. Avery completely burned the body in his burn pit and moved some of the bones into his sister Barb's burn barrel. (TT:3/15:98-100; TT:3/15:76-77) ...
THE CASE AS PRESENTED BY TRIAL DEFENSE COUNSEL
Mr. Avery was represented by retained attorneys Dean Strang and Jerome Buting. Trial defense counsel presented seven witnesses, two of whom were qualified as experts and one of whom was the prosecution's witness, Inv. Wiegert. ...
INVESTIGATOR BIAS
Because of the media attention he received after his 2003 release from prison and due to his lawsuit against Manitowoc County, Mr. Avery received more attention than another person might have. (TT:3/14:133). According to trial defense counsel, MCSD officers wanted to believe that Mr. Avery was guilty and therefore had an investigative bias that was exploited by the real killer. (TT:3/14: 133). Trial defense counsel stated that when someone is framed, there is a lack of evidence and the jurors are entitled to draw reasonable inferences from this lack of evidence. (TT:3/14: 135).
Partial Skeletal Remains Found in Mr. Avery's Burn Pit
50. According to trial defense counsel, "the most damning piece of evidence in the case" was that Ms. Halbach's remains were found in the burn pit outside of Mr. Avery's garage and trailer. Trial defense counsel noted Dr. Eisenberg's testimony that only 40 percent of Ms. Halbach's skeletal remains were recovered, so 60 percent of Ms. Halbach's bones were missing. No expert testified at trial that the other 60 percent of her remains were burned up or consumed by the fire. (TT:3/14:136-137). Trial defense counsel argued that while five of six rivets from a pair of Daisy Fuentes jeans were found in Mr. Avery's burn pit, the button that closed the waist of the jeans was never located even though magnets and sieves were used. (TT:3/14:137). Trial defense counsel pointed out that Ms. Halbach's house and work keys were never found. (TT:3/14: 137). ...
Bones in Mr. Avery's Burn Pit were Moved
51. Trial defense counsel claimed that "all the experts agree these bones were moved," but Mr. Kratz had failed to explain "how that happened." (TT:3/14: 137-38). While Mr. Kratz presented evidence of the cause and manner of death, there was no evidence about how or where Ms. Halbach was killed. (TT:3/14: 138). Trial defense counsel claimed that the bones were found in a burn barrel belonging to Barb's family, located 150 feet away from Mr. Avery's burn pit, and there was a third site where "suspected human bones" were found in the Manitowoc County pit adjacent to the Radandt Pit. (TT:3/14:139). Trial defense counsel criticized the State's investigators for not taking photographs of the bones found in the Manitowoc County pit upon their discovery. (TT:3/14: 140).
52. Trial defense counsel stipulated to the FBI doing mitochondrial typing of the pelvic bone and agreed with the FBI findings that nothing could be determined from these bones. However, trial defense counsel pointed out that Dr. Eisenberg agreed that the bones from all 3 burn sites were burned to the same degree. According to trial defense counsel, it was clear that the bones were moved, but the State's theory did not account for their removal. (TT:3/14:138-39).
53. Trial defense counsel claimed that Dr. Eisenberg was not able to definitively answer the question of whether the burn pit was the original burn site. (TT:3/14:143). Dr. Eisenberg testified that the burn pit was probably the primary burn site because in it were numerous small, fragile bones that one would have expected to break if moved. However, trial defense counsel pointed out that Dr. Fairgrieve testified that in his experience, small bones usually wind up at the secondary site, and that the site where the majority of bones are recovered is usually the secondary site to which bones are transported. (TT:3/14: 143). Due to the manner of excavation, Dr. Fairgrieve could not offer an opinion as to whether the burn pit behind Mr. Avery's garage was the primary site. (TT:3/14:144). Trial defense counsel relied upon Dr. Fairgrieve's opinion that the State should have had a forensic anthropologist come to Mr. Avery's burn pit to supervise the original excavation of bones.
54. Trial defense counsel claimed that Dr. Fairgrieve said that at the original burn site, the bones would have some anatomical connection to each other, but if the bones were moved, they would "fall apart and they would be rearranged." (TT:3/14:144).
55. Trial defense counsel offered the jury the hypothesis that Ms. Halbach was burned in the Manitowoc County pit, and that a Janda burn barrel was used to transport her remains. Trial defense counsel claimed that because the burn barrels were heavy and were transported in the dark, bones were inadvertently left in the barrel. (TT:3/14:146-47).
56. Trial defense counsel pointed out that Bobby testified that Barb's residence only had 3 barrels, yet 4 barrels were found. Trial defense counsel contended that the fourth barrel was used to transport the bones from the original burn site. (TT:3/14: 148). Trial defense counsel claimed, "if that body was burned elsewhere and then moved and dumped on Mr. Avery's burn pit, then Steven Avery is not guilty, plain and simple. Because no one would burn a body somewhere else and then move the remains and dump them in your own backyard. No one would do that." (TT:3/14:148-149).
Trial Defense Counsel's Theories About the Blood, Bullets, and Key
57. Trial defense counsel also made the following arguments to the jury in their closing about the blood, bullets and key:
a. According to the State's theory, Mr. Avery was actively bleeding in Ms. Halbach's RAV-4. However, Mr. Riddle did not identify any of Mr. Avery's fingerprints in the RAV-4. If Mr. Avery was not wearing gloves, it would have been reasonable to expect him to leave behind fingerprints. If Mr. Avery was wearing gloves, it would have been unreasonable to expect him to leave behind blood. (TT:3/14: 150-51 ).
b. Regarding fingerprints found on the RAV-4 by Mr. Riddle, there were 8 unidentified prints. Standards from Lt. Lenk and Sgt. Colborn were not compared to the 8 unidentified prints. (TT:3/14: 151-52).
c. None of the investigators saw blood stains in the RAV-4 while it was at the scene. It was not until the RAV-4 was transported and processed at the WSCL that the blood stains were noticed. Trial defense counsel specifically discussed DCI Agent Thomas Fassbender’s ("Agent Fassbender") and Mr. Ertl's testimony about shining a flashlight into the RAV-4 and how implausible it was that they would not look for a key in the ignition and not notice the nearby stain. (TT:3/14:153). Trial defense counsel referred to the blood stain by the ignition as a "rather peculiar looking bloodstain that looks sort of like you might get if you take a Q-tip and dab it." (TT:3/14:153).
d. The most obvious lack of evidence was the lack of any trace of Ms. Halbach in Mr. Avery's trailer. Further, there were no rope fibers on the headboard and no indications that anyone was restrained there. (TT:3/14:153-54). Trial defense counsel noted that Mr. Kratz was now alleging that the crime took place in the garage, but in pre-trial publicity Mr. Kratz said Ms. Halbach was killed in the bedroom. (TT:3/14: 154-55).
e. If Ms. Halbach was shot in the garage, her blood should have been found in the garage. (TT:3/14:159). Further, Mr. Avery's blood was found in the garage, which was inconsistent with the theory that Mr. Avery cleaned up Ms. Halbach's blood in the garage. (TT:3/14:160). Trial defense counsel claimed that if Mr. Avery had cleaned up blood in the garage, it would be expected that he would have also picked up the shell casings. (TT:3/14: 161).
f. Trial defense counsel argued that had Mr. Avery killed Ms. Halbach he would not have put her car key in his home unless he wanted to drive the RAV-4, which was inconsistent with the fact that Mr. Avery allegedly disconnected a battery cable. (TT:3/14:162-63).
g. Mr. Avery was approached by news media and law enforcement on November 3 and 4, 2005, so he knew that he was a person of interest and would not have kept Ms. Halbach's car key in his bedroom. (TT:3/14:163). Further, the key was not found until the seventh search of the trailer on November 8, 2005, and after hours spent searching Mr. Avery's bedroom. (TT:3/14:163). Dep. Kucharski testified that he was there to search the bedroom, not to watch Lt. Lenk and Sgt. Colborn. (TT:3/14: 165-66).
h. Trial defense counsel argued that it was impossible for the key to have landed in the position it did if it had fallen out of the back of the bookcase. (TT:3/14: 166-67). Trial defense counsel pointed out that there were no pictures of the bookcase because they "don't want you experimenting with that bookcase and this key, because they know you will see that it is incredibly improbable" that the key, the ring, the cloth fob, or the plastic clip would not get "hung up on anything." (TT:3/14:168). Trial defense counsel noted it was unusual that there was no mixture of DNA on the key and that there was no blood observed on the key despite the State's theory that Mr. Avery was bleeding from his right hand. Trial defense counsel also emphasized that Mr. Avery's fingerprints were not found on the key. (TT:3/14:169-170).
i. Trial defense counsel suggested that the DNA on the key was planted from Mr. Avery's toothbrush. (TT:3/14:170). Trial defense counsel suggested that further evidence that Mr. Avery's DNA was planted on Ms. Halbach's key was that only Mr. Avery's DNA was found, as if someone had wiped clean her DNA and placed his on the key. (TT:3/14: 172). Trial defense counsel claimed that if Mr. Kratz had nothing to hide regarding the key and the bookcase, he would have brought the bookcase to court; Mr. Kratz responded that the "defense has just as much right to bring that [bookcase] up here as Mr. Kratz did." (TT:3/15:84-85). Neither side brought the bookcase to court.
j. Trial defense counsel pointed out that Mr. Kratz had misrepresented to the jury, in his opening statement, that Mr. Avery's blood was on the rear of the vehicle on the tailgate; no proof was presented at trial that Mr. Avery's blood was found at that location. (TT:3/14:169). Trial defense counsel also claimed that there was not one microliter of blood in the RAV-4 by relying upon his own visual observation of the small amounts of blood in the vehicle. (TT:3/14: 173). Trial defense counsel claimed you "can't even find any blood, can't see any blood" on the CD case. (TT:3/14:173). ...
61. According to trial defense counsel, the opportunity to plant blood in the RAV-4 occurred on November 5, prior to MCSD turning the investigation over to CCSD, and that MCSD kept their officers in control of the RAV-4 for four hours. Trial defense counsel stated that the car was not secured until 2:25 p.m., when Agent Fassbender arrived and started a log. (TT:3/14: 180). Trial defense counsel also argued that the tarp placed over the RAV-4 was like a tent with an opening that would allow someone to plant evidence. (TT:3/14: 181).
62. Trial defense counsel referenced Pam's testimony that she and her daughter Nikole Sturm ("Nikole") did not know with certainty that the rear cargo door of the RAV-4 was locked ...
Trial defense counsel claimed that a police officer would know how to open a locked car. (TT:3/14:183). Trial defense counsel also stated that it is not entirely clear that Ms. Halbach's vehicle was locked when it arrived at the WSCL. (TT:3/14:183). Trial defense counsel asserted that it would only require someone to open two of the vehicle's doors to plant all of the evidence. (TT:3/14:183). ...
Damaged Bullet (Item FL) Not Linked to Shell Casings Found in the Garage
65. On March 1, 2006, a damaged bullet was located by the main garage door in plain sight. The second damaged bullet, found on March 2, 2006, was found under the air compressor. (STATE 5651; TT:2/12:102).
66. Trial defense counsel claimed that Rollie Johnson ("Mr. Johnson") fired .22 caliber firearms on the property around the garage and the bullet remnants were never picked up. (TT:3/8:161-162). Mr. Johnson owned the .22 caliber rifle that the State claimed was the murder weapon and was hanging above Mr. Avery's bed. Trial defense counsel argued that the State's expert, Mr. Newhouse, identified the shell casings as coming from Mr. Johnson's gun, but he could not say that the damaged bullet (Item FL) came from any of the recovered shell casings. None of Mr. Avery's fingerprints were on the shell casings. (TT: 3/14:187-88).
67. According to trial defense counsel, Mr. Newhouse testified that he was unable to match the second damaged bullet (identified as Item FK) to Mr. Johnson's gun, and testified that the bullet could have come from a pistol with a different brand name. Therefore, Mr. Newhouse could not say that the second bullet (Item FK) had any connection to the case. (TT: 3/14: 188-89).
68. Trial defense counsel compared Mr. Newhouse's testimony to discredited hair comparison analysis. Trial defense counsel also criticized the State and Mr. Newhouse for not showing photos of the comparison of the bullets side-by-side. Trial defense counsel claimed that he could see a lot of differences between "those two fields of view." Even if Item FL was fired from Mr. Johnson's gun, it did not mean that it was connected to the case according to trial defense counsel. Trial defense counsel also noted that Mr. Newhouse was not asked to determine if there was copper present in his examination of the damaged bullet because both bullets were copper-coated. (TT:3/14:189-91).
Ms. Culhane's Bias Against Mr. Avery
69. Trial defense counsel pointed out that, although Ms. Culhane helped to eventually exonerate Mr. Avery for the rape charge in 2003, she also helped to convict him of that rape in 1985. (TT:3/14:192).
70. Trial defense counsel referenced a phone message from Agent Fassbender to Ms. Culhane directing her "to try to put [Ms. Halbach] in [Mr. Avery's] house or garage." (Trial Exhibit 341). Trial defense counsel told the jury that "this is not blind testing." (TT:3/14:192). According to trial defense counsel, at the point that Ms. Culhane discovered Ms. Halbach's DNA on Item FL, she must have been feeling pressure because this was "the biggest case of her career" and 180 items had been submitted to her laboratory for analysis and she "still ha[d] not found" one item that linked Ms. Halbach to Mr. Avery's house or garage. (TT:3/14:193). Trial defense counsel suggested that because Ms. Culhane had contaminated the control sample for Item FL, she may also have transferred Ms. Halbach's DNA onto Item FL. (TT:3/14:194). Trial defense counsel stated that Ms. Culhane had Ms. Halbach's DNA from the RAV-4 cargo area "sitting right there on her bench" so "you can't tell how and whether Teresa Halbach's DNA ended up there in the same extraction mechanism." (TT:3/14:195). Trial defense counsel stressed that, of all of these other items, Item FL is "the only thing that's ever come up with Teresa Halbach's DNA." (TT:3/14:196). ...
Dr. LeBeau's Opinion is Flawed
75. Trial defense counsel referred in their closing to the testimony of Dr. LeBeau regarding the testing of the ethylenediaminetetraacetic acid (EDTA) tube and RAV-4 swabs as deserving "the award for the most absurd expert opinion" in this case. Trial defense counsel disputed Dr. LeBeau's opinion that just because 3 of the items tested did not have EDTA, the 3 untested items also did not have EDTA. (TT:3/14:201).
76. Trial defense counsel pointed out that Mr. Avery's expert, Janine Arvizu ("Ms. Arvizu"), correctly stated that Dr. LeBeau's experiment did not account for the absence of a limit of detection, his protocol was rushed, and no one had attempted such an EDTA experiment in ten years. (TT:3/14:203). Mr. Strang corrected his co-counsel's assertion that Ms. Arvizu was a doctor, as Ms. Arvizu had not actually completed her dissertation. (TT:3/15:40).
The Defense Timeline Placed Ms. Halbach at the Avery Property at 3:30-3:45 p.m.
77. Trial defense counsel disputed the testimony of Bobby that he saw Ms. Halbach at 2:45 p.m. because Bobby "[had] no good way of verifying the time." (TT:3/14:205).
78. Trial defense counsel argued that Bobby and Mr. Tadych were each other's alibis, no one saw Bobby go hunting in the woods, and the time when Bobby claims he left -- 5:00 p.m. -- makes no sense for deer hunting. (TT:3/14:206). They claimed that Mr. Tadych's testimony that he knew precisely what time it was [was] contrived and appeared to be the result of collaborating with Bobby to come up with their story. (TT:3/14:205-206).
79. Trial defense counsel relied on the testimony of Ms. Buchner, the bus driver, that she saw a woman taking pictures of a van on the Avery property when she dropped Brendan and Blaine off at 3:30-3:40 p.m. Trial defense counsel admitted that Ms. Buchner was uncertain of the date, whether it was October 31 or November 1 or 2. (TT:3/14:207).
80. Trial defense counsel also cited the testimony of Mr. Leurquin, a propane driver, who believed he saw a green SUV around the same time Ms. Buchner described seeing the woman taking the photographs. (TT:3/14:208).
Other Witnesses's Suspicious
81. Trial defense counsel suggested that no one checked out Mr. Tadych's story that he allegedly visited his mother at the hospital on October 31, 2005, or that he knew he saw a bonfire behind Mr. Avery's garage at 7:45 p.m. because he wanted to get home to watch Prison Break at 8:00 p.m. (TT:3/14:209).
82. Trial defense counsel pointed out that when Mr. Tadych was first interviewed by the police, he never mentioned a bonfire behind Mr. Avery's garage, much less a bonfire with "flames to the top of the roof ' as he testified to at trial. (TT:3/15:44).
83. Bobby's testimony was contradicted by Blaine, who testified that Bobby was asleep when Blaine arrived at home between 3:30 p.m. and 3:45 p.m. on October 31, 2005 (TT:2/27:85-86); therefore, Bobby could not have seen Ms. Halbach at 3:45 p.m.
84. Trial defense counsel also pointed out that George Zipperer ("Mr. Zipperer") was belligerent while Mr. Avery was cooperative, Mr. Hillegas had no alibi, Mr. Bloedorn did not report Ms. Halbach missing for four days, Bradley Czech ("Mr. Czech") provided no alibi, and Thomas Pearce ("Mr. Pearce") also did not report her missing for four days. (TT:3/14:210-11).
85. Trial defense counsel also pointed out that Ms. Halbach attended a Halloween party in Green Bay on Saturday night but no one came forward saying they were with her on Saturday night. (TT:3/14:212).
State's Expert Testimony that Voicemail Deletions Require Use of Password
86. Trial defense counsel argued that the State's expert Anthony Zimmerman ("Mr. Zimmerman") confirmed that the 18 messages discovered in Ms. Halbach's voicemail (Trial Exhibit 372) did not constitute a full mailbox. Trial defense counsel claimed that Mr. Zimmerman admitted that if Ms. Halbach's voicemail was indicating that the mailbox was full at a certain point, then this meant that messages had been erased by someone and that that person had to have known Ms. Halbach's password. (TT:3/14:213). ...
Sgt. Colborn Called-in Ms. Halbach's Plates on November 3 or November 4, 2005
88. Trial defense counsel suggested that Sgt. Colborn's call to dispatch regarding the license plate check on Ms. Halbach's car was made either on November 3 or November 4, 2005, but more likely on November 4 because Sgt. Colborn called from his cell phone instead of his squad car radio. (TT:3/15:31-32). Trial defense counsel argued that the call was from November 4, 2005, because that was Sgt. Colborn's day off and he would not have been in his squad car. (TT:3/15:32).
89. In their closing argument, trial defense counsel played both the Sgt. Colborn dispatch call tape and the MCSD Detective Dennis Jacobs ("Det. Jacobs") tape from November 5, 2005, at 11:30 a.m. after Ms. Halbach's vehicle was discovered. (TT:3/15:35-36). On the tape, Det. Jacobs asked if Mr. Avery was "in custody" yet. (TT:3/15:36).
90. Trial defense counsel contended that if Ms. Culhane had followed the WSCL protocol in testing the damaged bullet found on March 2, 2006, she would not have been able to offer the opinion that Ms. Halbach's DNA was found on the damaged bullet (Item FL) because it was contaminated. (TT:3/15:37-38). Ms. Culhane deviated from protocol for the first time in 23 years. (TT:3/15:37).
91. Trial defense counsel claimed that the FBI EDTA protocol presented by the State was flawed because it was put together in "a couple of weeks" and it could not detect the absence of EDTA. Trial defense counsel did not provide a scientific explanation as to why the EDTA could not be detected, but instead provided analogies to a telephone ringing and smelling apple pie. (TT:3/15:40-42).
92. Trial defense counsel, in arguing that the evidence was planted, offered the rationale that the investigators were not "doing it to frame an inncent man;" rather, they were trying "to ensure the conviction of someone they ha[d] decided [was] guilty." (TT:3/15:46). ...
97. Trial defense counsel tried to combat the State's 14 experts merely by using cross-examination without their own experts in blood spatter, DNA, forensic pathology, ballistics, and forensic fire analysis. Trial defense counsel's forensic anthropologist was incompetent for failing to do a microscopic analysis of CCSD Property Tag No. 8675, the suspected human pelvic bones found in the Manitowoc County gravel pit ("Manitowoc Pit") or a histological slide analysis of these bones to determine with certainty if they were human. If a determination had been made that these bones were human and linked to Ms. Halbach, trial defense counsel could have conclusively demonstrated that Ms. Halbach's other bones had been planted in Mr. Avery's burn pit.
98. Trial defense counsel failed to thoroughly investigate other suspects and instead chose a scattergun approach of simply naming individuals without meeting the requirements of State v. Denny, 357 N.W. 2d 12, 120 Wis. 2d 614 (Wis. Ct. App. 1984). Trial defense counsel also failed to utilize available evidence which confirmed that the vehicle was moved onto the Avery property after Ms. Halbach was killed elsewhere. ...
THE 1996 BLOOD VIAL
Failure of Trial Defense Counsel, Because of Not Having a Blood Spatter Expert, to Recognize 1996 Blood Vial Was Not the Source of Blood in the RAV-4
139. Mr. Avery's trial defense counsel were unaware of the EDTA preserved whole blood sample stored in the Manitowoc County Clerk of Court's office until the summer of 2006. Prior to that time, trial defense counsel failed to develop a credible explanation for the presence of Mr. Avery's blood in the RAV-4. Trial defense counsel waited until December 2006 to present a motion requesting that they be allowed to examine the blood vial. (Motion for Order Allowing Access to Prior Court File, attached and incorporated herein as P-C Exhibit 17).
140. Mr. Avery's trial defense counsel relied exclusively upon a frame-up theory of defense, correctly arguing that all evidence inculpating Mr. Avery was fabricated. However, they incorrectly argued that Mr. Avery's found in Ms. Halbach's vehicle was planted by law enforcement and that it came from a 1996 blood vial held in the Manitowoc County Clerk of Courts office. (TT:3/14:177-81). Trial defense counsel represented to the jury that the seal of the 1996 blood vial package had been broken and resealed with a strip of Scotch tape. (TT:3/14: 177). Trial defense counsel would have been aware that this package was opened by members of the Wisconsin Innocence Project in 2002 to examine forensic evidence that could be tested. (12/11/16 Interview of former Manitowoc County District Attorney, Edward Fitzgerald ("12/11/06 Fitzgerald Interview"), attached and incorporated herein as P-C Exhibit 18, STATE 1_9950; 12/21/06 DCI report regarding review of Manitowoc County Clerk of records ("12/21/06 Records Review"), attached and incorporated herein as P-C Exhibit 19, STATE 2_1068). At that time, Mr. Avery's Wisconsin innocence Project attorneys broke the seal of the 1996 blood vial package, and resealed the enclosed box using only a strip of Scotch tape. (12/11/06 Fitzgerald Interview, P-C Exhibit 18, STATE 1_9951; 12/21/06 Records Review, P-C Exhibit 19, 2_1068-9). There was no credible proof presented to the jury establishing that Lt. Lenk and Sgt. Colborn accessed the Clerk of Court's file to obtain Mr. Avery's blood to plant it in the RAV-4.
141.Mr. Avery's trial defense counsel further inaccurately represented Lt. Lenk's knowledge of the 1996 blood vial to the jury. Trial defense counsel argued that Lt. Lenk had personal knowledge of the 1996 blood vial of Mr. Avery's blood in the Clerk of Court's office. (TT:2/21:31-35; TT:3/14:178-79). However, trial defense counsel failed to present evidence that proved, in any manner, that Lt. Lenk had knowledge of the 1996 blood vial. (TT:2/21: 18). Trial defense counsel relied on a transmittal form that showed that other evidence from Mr. Avery's 1985 case was sent to the WSCL for testing. Simply stated, there is no evidence that Lt. Lenk ever had possession of or even knew about the 1996 blood vial of Mr. Avery's blood stored in the Clerk of Court's office. Despite knowing that there was no provable connection between Lt. Lenk and the 1996 blood vial, trial defense counsel represented to the jury that Lt. Lenk must have inadvertently found the 1996 blood vial in examining the file. (TT:2/21:26-29). This argument was totally lacking in credibility because there was no corroborative evidence to support it.
142. The Court was aware that no provable connection existed between Lt. Lenk and the 1996 blood vial, but allowed the planting defense to proceed to the jury. (Order on State's Motion to Exclude Blood Vial Evidence, attached and incorporated herein as P-C Exhibit 20, p. 4).
143. Trial defense counsel was aware that the nurse who drew Mr. Avery's blood in 1996 created the needle hole in the blood vial when she deposited Mr. Avery's whole blood into the EDTA prepared tube. (Trial Defense Counsel's Statement on Planted Blood, attached and incorporated herein as P-C Exhibit 21, ~ 5). Trial defense counsel had no reason to believe that the hole in the top of the 1996 blood vial was created by anyone except this nurse.
144. Trial defense counsel's theory about the 1996 blood vial was carelessly constructed without corroboration. The blood vial theory was abandoned during the trial and it resulted in no viable theory being presented to the jury about trial defense counsel's claim that the blood in the RAV-4 was planted. Trial defense counsel lost credibility with the jury when it was unable to present any evidence that Mr. Avery's blood in the RAV-4 was planted.
145. Current post-conviction counsel's blood spatter expert has been able to demonstrate that all of Mr. Avery's blood in the RAV-4 was selectively planted and that the blood spatter on the rear cargo door was not the result of Ms. Halbach being thrown into the cargo area by her attacker as the State told the jury. (Affidavit of Stuart James, P-C Group Exhibit 16). The failure of trial defense counsel to have a viable theory supported by expert testimony explaining how Mr. Avery's blood was planted in Ms. Halbach's vehicle all but guaranteed his conviction and life sentence without parole.
THE KEY, AND AVERY'S DNA ON THE KEY, WAS PLANTED
148. The key was not present in the initial photographs of the bookcase and Mr. Avery's slippers. (Trial Exhibit 208; MHT:8/9:210; TT:2/20:130). During Sgt. Colborn's frenetic interaction with the bookcase, Lt. Lenk left the bedroom. (TT:2/20: 129-30). When Lt. Lenk returned, he noticed a Toyota key had suddenly appeared. (TT:2/21:12-13). Rather than being located where one would expect the key to have fallen behind the bookcase, based on Sgt. Colborn's actions, the key was lying on the northwest side of the bookcase on the carpet. (Trial Exhibit 210). Lt. Lenk provided the only explicit account of the slippers being moved (as shown in the comparison of Trial Exhibits 208 and 210). (TT:2/21:10-11). Prior to the key's discovery, Lt. Lenk reportedly picked the slippers up and set them back down after checking within and under them, while searching Mr. Avery's bedroom on November 8, 2005. (TT:2/21:10-11).
149. Neither side subpoenaed Mr. Avery's bookcase to the trial. Trial defense counsel's failure to have the bookcase at trial to demonstrate the impossibility of the State's story about the discovery of the key was a fatal error. A simple experiment with the bookcase and Toyota key would have conclusively demonstrated that the key was planted next to the bookcase by Sgt. Colborn and Lt. Lenk. Conclusive proof that this one piece of evidence was planted would have collapsed the State's house of fabricated evidence. Current post-conviction counsel had experiments performed with an identical bookcase ("experiment bookcase") an identical 1999 Toyota RAV-4 key on a blue fabric lanyard ("experiment key and lanyard") that demonstrates that Sgt. Colborn's and Lt. Lenk's testimony about the discovery of Ms. Halbach's key in Mr. Avery's bedroom is demonstrably false.
150. Current post-conviction counsel's law clerk conducted a bookcase experiment and produced the following results:
Failure of Trial Defense Counsel to Investigate and Demonstrate that Planted Toyota Key was a Sub-Key and Not a Master Key as Mr. Kratz Claimed
151. Mr. Kratz wanted the jury to believe that the key found in Mr. Avery's bedroom was the victim's everyday key because, if the key was a spare key, it is more likely that the key was planted by Sgt. Colborn and Lt. Lenk after it was obtained from the victim's residence by law enforcement. The 1999 Toyota RAV-4 manual clearly shows that the key recovered from Mr. Avery's bedroom was Ms. Halbach's spare or sub-key. Comparing evidence photos of the key found in Mr. Avery's bedroom (Trial Exhibits 219 and 316) with the 1999 Toyota RAV-4 manual, it is apparent that the key found in Mr. Avery's bedroom was a spare or sub-key and not Ms. Halbach's master key. The shape of the key discovered in Mr. Avery's bedroom matches the shape of the sub-key illustrated in the RAV-4 manual, whereas the shape of the master key illustrated in the manual is more square. (RAV-4 Manual, P-C Exhibit 1).
152. A photograph of Ms. Halbach standing in front of her RAV-4 was admitted as Trial Exhibit 5. In this photograph, Ms. Halbach is holding a ring of keys on a white lanyard. (Trial Exhibit 5). Her master key is readily observable because of its square shape. Additionally, Ms. Halbach's RAV-4 had electronic locks. (RAV-4 Manual, P-C Exhibit 1; Driver's Door Photos, P-C Group Exhibit 2, STATE 9788, 1_0209). Based upon the photograph of Ms. Halbach, it is clear that Ms. Halbach kept her key fob attached to her master vehicle key. There was no fob attached to the key found in Mr. Avery's bedroom on November 8, 2005. The master key to Ms. Halbach's vehicle, which did have electronic locks and a fob, was never located, nor was the white lanyard that was attached to the master key as seen in Trial Exhibit 5.
153. On November 4, 2005, news media crews filmed the interior of the house Ms. Halbach shared with Mr. Bloedorn. While interviewing Mr. Bloedorn in the kitchen, news media filmed what appeared to be the RAV-4 sub-key and blue lanyard, which was next to the kitchen sink. (November 4, 2005, WFRV Interview of Scott Bloedorn stills, attached and incorporated herein as P-C Group Exhibit 23). It is indisputable that the key that was found Mr. Avery's bedroom on November 8, 2005 was Ms. Halbach's sub-key with a blue lanyard attached. Trial defense counsel failed to demonstrate this simple undisputed fact to the jury by using Trial Exhibit 5 and the RAV-4 manual which was critical to the success of proving the sub-key and blue lanyard were planted. (RAV-4 Manual, P-C Exhibit 1). ...
Failure of Trial Defense Counsel to Present a DNA Expert to Establish that Mr. Avery's DNA Was Planted on the Sub-Key by Law Enforcement
157. Allegedly, Ms. Halbach's sub-key had Mr. Avery's complete DNA profile but not Ms. Halbach's. (TT:2/23:181-83; TT:2/26:103-4). Although no presumptive blood testing was done by the State which would establish whether the DNA came from blood, their expert nonetheless testified that Mr. Avery's blood from his cut finger had masked Ms. Halbach's DNA profile. (TT:2/26:96; TT:2/19:133).
158. Current post-conviction counsel's DNA expert, Dr. Reich, conducted experiments that demonstrate that the DNA on the sub-key was planted because the amount of DNA detected by the WSCL on the sub-key found in Mr. Avery's bedroom is of much greater quantity than the amount of DNA Mr. Avery deposited on an exemplar sub-key by holding it in his hand for 12 minutes as a part of Dr. Reich's experiment. (Affidavit of Steven Avery, P-C Exhibit 4). Specifically, Dr. Reich found that Mr. Avery deposited 10 times less DNA on the exemplar sub-key than what the WSCL detected on the sub-key recovered from Mr. Avery's bedroom. As illustrated by Dr. Reich's experiments, Mr. Avery could not deposit the amount of DNA identified on the sub-key by the WSCL simply by holding it in his hand. (Affidavit of Dr. Reich, P-C Group Exhibit 15, ~ 31). Because Dr. Reich's experiments have refuted the State's claim that the DNA on the sub-key came from Mr. Avery holding the key, the only remaining plausible explanation is that the DNA was planted on the key from another source of Mr. Avery's DNA.
159. New scientific source testing was performed on the exemplar sub-key to determine the source of the DNA. An experiment eliminated skin cells, rubbed from slippers identical to the ones photographed in Mr. Avery's bedroom on November 8, 2005, as the source of the DNA on the Toyota Key (Item C). The quantity of skin cells detected by Dr. Reich on the exemplar sub-key after it had been rubbed in worn slippers identical to Mr. Avery's, was not comparable to the quantity detected by Ms. Culhane on the key. Mr. Avery's toothbrush was taken by law enforcement, and current post-conviction counsel's DNA experts' experiments have shown that rubbing a toothbrush on a exemplar sub-key would produce a comparable quantity of DNA. Mr. Avery's toothbrush was taken by law enforcement from his bathroom but suspiciously was never logged into evidence. Mr. Avery, after reviewing a law enforcement photograph taken of his bathroom during one of the multiple searches, immediately noticed that his toothbrush was missing. Mr. Avery had not removed the toothbrush prior to leaving for Crivitz on November 5, 2005. The only plausible explanation for the missing toothbrush was that law enforcement removed the toothbrush but never logged it into evidence so that it could be rubbed on the sub-key of Ms. Halbach. (Affidavit of Steven Avery, P-C Exhibit 4; Affidavit of Dr. Reich. P-C Group Exhibit 15, r 37; Trial Exhibit 206).
AVERY'S DNA SAMPLES - THE GROIN SWAB WAS SWAPPED FOR THE HOOD LATCH SWAB
166. Two groin swabs were taken from Mr. Avery at Aurora Medical Center by a nurse on November 9, 2005. Mr. Avery was escorted by Inv. Wiegert to Aurora Medical Center at approximately 1:20 p.m. Agent Fassbender met Inv. Wiegert, who was escorting Mr. Avery for the examination. Mr. Avery was taken into an examination room. Present in the examination room were Faye Fritsch, RN and SANE Medical Director Laura Vogel-Schwartz, MD. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635). Towards the end of the examination, Nurse Fritsch took two swabs of Mr. Avery's groin area in direct contravention of the search warrant, which specifically restricted that DNA samples were to be taken from Mr. Avery's saliva and blood. There was no reference to groin swabs in the search warrant. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1643). Significantly, Nurse Fritsch's documentation of taking swabs from Mr. Avery excludes any mention of taking groin swabs. A well-qualified nurse following acceptable standards of charting would never fail to document taking the groin swabs unless she were instructed not to document taking the groin swabs by Agent Fassbender or Inv. Wiegert. (Forensic Evidence Checklist, attached and incorporated herein as P-C Exhibit 26, STATE 2875, 2877). Agent Fassbender and Inv. Wiegert "conferred and determined that the search warrant did not call for that type of exam. Inv. Wiegert immediately stopped Fritsch and the exam was concluded." Again, Nurse Fritsch would never have taken the groin swabs without being specifically instructed to do so by Agent Fassbender and Inv. Wiegert. Agent Fassbender and Inv. Wiegert's explanation that they did not realize that the search warrant did not call for taking groin swabs is not credible.
167. Furthermore, according to Agent Fassbender's report, Nurse Fritsch disposed of the groin swabs. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635). Agent Fassbender's report is not credible because Nurse Fritsch never mentions, in her charting, disposing of the groin swabs. Agent Fassbender's report directly contradicts Mr. Avery's account of this examination as described in his affidavit. Contrary to Agent Fassbender's report, Inv. Wiegert told Nurse Fritsch that he would discard the swabs while Agent Fassbender escorted Mr. Avery into a separate room to get his fingerprints. As Mr. Avery followed Agent Fassbender and Nurse Fritsch out of the examination room, Mr. Avery heard Inv. Wiegert tell Nurse Fritsch to give him the groin swabs, and Mr. Avery observed Inv. Wiegert walk to the examination room receptacle as if to discard the groin swabs. Mr. Avery observed that Inv. Wiegert's did not drop the groin swabs into the receptacle.(11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635; Affidavit of Steven Avery, P-C Exhibit 4).
168. Inv. Weigert, as an experienced investigator, would have known that taking groin swabs was not authorized by the search warrant, which permitted only the collection of saliva and blood samples. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1643). It is therefore reasonable to conclude, from this clear violation of Mr. Avery's Fourth Amendment rights, that Inv. Wiegert planned to use the illegally seized groin swabs from Mr. Avery to plant Mr. Avery's DNA on other crime scene evidence.
Hood Latch Story Fabricated by Inv. Wiegert and Agent Fassbender in Brendan's Confession
169. It was not until four months after Ms. Halbach's RAV-4 was analyzed by the WSCL in Madison that investigators became interested in the hood latch. The hood latch was first introduced by Agent Fassbender and Inv. Wiegert in their March 1, 2006, interrogation of Brendan. Agent Fassbender asked Brendan, "Did he, did he, did he go and look at the engine, did he raise the hood at all or anything like that? To do something to that car?" (Pages from March 1, 2006, interrogation of Brendan Dassey ("3/1 /06 Interrogation", attached and incorporated herein as P-C Exhibit 27, STATE 4674). In a subsequent interview, Brendan denied seeing Mr. Avery open the hood. (Pages from Ma y 13, 2006, interrogation of Brendan Dassey, "5/13/06 Interrogation"), attached and incorporated herein as P-C Exhibit 28, STATE 7300). In the May 13 interview, under pressure by Agent Fassbender and Inv. Wiegert, Brendan capitulated and changed his story to fit their narrative - that Mr. Avery opened the hood of Ms. Halbach's RAV-4.
Failure of Trial Defense Counsel to Investigate and Detect Hood Latch Swab Chain of Custody Fabrication Which Allowed Swab Substitution; Failure to Interview Mr. Avery about Groin Swabs, and Failure to Present DNA and Trace Evidence Experts
170. In an effort to corroborate Brendan's confession taken on March 1, Agent Fassbender and Inv. Wiegert ordered that the hood latch be swabbed for DNA evidence. On April 3, 2006, Agent Fassbender and Inv. Wiegert specifically directed Deputy Jeremy Hawkins ("Dep. Hawkins") and Sgt. Tyson to go into the storage shed where the RAV-4 was located to swab the hood latch, battery cables, and interior and exterior door handles. ( 4/3/06 CCSD report by Dep. Hawkins, attached and incorporated herein as P-C Exhibit 29, STATE 1_2145). At 19:37 hours, Sgt. Tyson swabbed the hood latch. Dep. Hawkins took photographs, including a photograph of the swab. (4/3/06 CCSD report by Dep. Hawkins, attached and incorporated herein as P-C Exhibit 30, STATE 1_2095-96).
171. The instructions Agent Fassbender and Inv. Wiegert gave Dep. Hawkins and Sgt. Tyson are inconsistent with a good faith effort to recover forensic evidence. If they really thought Mr. Avery had opened the hood and wanted to collect any possible DNA of his from the RAV-4, they should also have instructed Sgt. Tyson and Dep. Hawkins to swab the interior hood release lever and hood prop, which, by necessity, Mr. Avery would have handled when opening the hood to disconnect the battery cable.
172. After Sgt. Tyson swabbed the hood latch, he gave the swab to CCSD Dep. Hawkins for storage. (CCSD Evidence/Property Custody Document, P-C Exhibit 31, STATE 1_6975). The next day, April 4, 2006, Dep. Hawkins signed the hood latch swab (CCSD Property Tag #9188) over to Inv. Wiegert for transport to the WSCL in Madison. (4/4/06 CCSD Report by Hawkins, P-C Exhibit 32, STATE 1_2099-100). Inv. Wiegert transferred custody of the swab to WSCL personnel, purportedly delivering the swab collected from the hood latch for analysis. (CCSD Evidence/Property Custody Document, P-C Exhibit 31, STATE 1_6976). However, on WSCL custody transmittal documents, Dep. Hawkins' name is typed as the submitting officer. (WSCL Receipt of Physical Evidence, attached and incorporated herein as P-C Exhibit 33, STATE 4881). Additionally, Dep. Hawkins' name is printed by hand as the submitting officer on the Wisconsin Department of Justice Evidence Transmittal Form labeled M05-2467-27. (WSCL Transmittal of Criminal Evidence, attached and incorporated herein as P-C Exhibit 34, STATE 4917). There is no evidence that Dep. Hawkins submitted swabs to the WSCL, and all of the evidence establishes that it was Inv. Wiegert who delivered the hood latch swab and printed Dep. Hawkins' name on the transmittal form. It is therefore reasonable to conclude that Inv. Wiegert printed Dep. Hawkin's name by hand in direct violation of all established chain of custody standards and protocols.
173. According to Agent Fassbender's report, the groin swabs taken of Mr. Avery at Aurora Medical Center were discarded. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635). In light of Nurse Fritsch's failure to report that groin swabs were taken from Mr. Avery and Wiegert and Fassbender's intentional violation of the scope of the search warrant, it is a reasonable probability that they intended to plant DNA from the groin swabs and conceal, from the official medical report, that groin swabs were taken. Inv. Wiegert clearly fabricated the chain of custody form given to WSCL. In light of the new scientific testing done on the hood latch, Inv. Wiegert substituted the groin swabs for the hood latch swabs collected by Sgt. Tyson.(Affidavit of Steven Avery, P-C Exhibit 4; Affidavit of Dr. Reich, P-C Group Exhibit 15, 1133-35) (See Paragraphs 169-172).
Failure of Trial Defense Counsel to Present a DNA Expert to Establish that Mr. Avery's DNA Was Never Deposited on the RAV-4 Hood Latch
174. According to current post-conviction counsel's expert, Dr. Reich, the most common way for forensic evidence to be planted is by re-labeling the forensic swabs. (Affidavit of Dr. Reich, P-C Group Exhibit 15,138).
175. The State claimed that Mr. Avery's DNA profile on the hood latch was the result of Mr. Avery opening the hood and touching the latch with "sweaty" fingers. (TT:3/7:102-103; TT:3/14:119-20; TT:3/15:83). The WSCL identified 1.9 nanograms (30 microliters of a DNA solution at a concentration of 0.0616 nanograms/microliter) of DNA on the hood latch. (Affidavit of Dr. Reich, P-C Group Exhibit 15, 1 18; WCSL hood latch DNA quantities, attached and incorporated herein as P-C Exhibit 35).
176. Current post-conviction counsel's DNA expert, Dr. Reich, oversaw experiments in which individuals touched a hood latch identical to the one on Ms. Halbach's vehicle. The hood latch was then swabbed. The swabs were source tested for the presence of skin cells and analyzed for the presence of DNA. In 11 of the 15 experiments, no detectable DNA was present on the swab. The remaining four experiments yielded 0.0519 nanograms, 0.0936 nanograms, 0.0696 nanograms, and 0.0729 nanograms of DNA, respectively. The results of these experiments illustrate the complete improbability of an individual leaving a full DNA profile by simply touching the hood latch in order to open the hood. Instead, Dr. Reich has opined that the most logical explanation for such a high yield of DNA is that it was actually obtained from the swab of Mr. Avery's groin, which was substituted for the hood latch swab by Inv. Wiegert (see ~~ 166-173, supra). (Affidavit of Dr. Reich , P-C Group Exhibit 15, ~~ 25-30 , 32-35; Affidavit of Dr. Palenik, P-C Group Exhibit 24, ~ 10).
177. If trial defense counsel had discovered that the groin swab had been substituted for the hood latch swab, that would have been powerful evidence to present to the jury that would have undermined the State's entire theory and demonstrated that Mr. Avery was being framed.
THE BURNING OF THE BODY AND THE PLANTED BONES
Failure of Trial Defense Counsel to Present a Forensic Fire Expert to Establish that Ms. Halbach's Body Was Not Burned in the Avery Burn Pit and Her Bones Were Therefore Planted
178. Trial defense counsel certainly understood the necessity of having such experts, as is demonstrated by the fact that they had the curriculum vitae, in their trial file, of one of current post-conviction counsel's experts, Dr. DeHaan. (Affidavit of Lauren Hawthorne, attached and incorporated herein as P-C Exhibit 36).
179. Dr. DeHaan has been a forensic scientist/criminalist since 1970, having served with the Alameda County Sheriffs Department, California Department of Justice - Bureau of Forensic Services, and the U.S. Treasury Department - Bureau of Alcohol, Tobacco and Firearms. He has served as President of Fire-Ex Forensics, Inc., since its incorporation in January 1999. He has been involved with various aspects of fire and explosion investigation since 1971. In the past 12 years, he has testified as an expert witness in over 50 cases. In the past 30 years, he authored a major textbook, co-authored one textbook, chapters in three text books, and over 30 articles. (Affidavit of Dr. DeHaan , attached and incorporated herein as P-C Group Exhibit 37, 12).
180. Dr. DeHaan has expressed, to a reasonable degree of scientific certainty based upon his expertise in the area of fire and fire debris examination, the following opinions:
a."The documentation, examination, and recovery of the remains at the Avery scene were all below acceptable professional standards of practice. A properly conducted recovery would have involved more comprehensive photography of the burned bones in the "burn pit" and better documentation as to from where and when all bones were recovered. It is my opinion that someone better qualified to recover potential human remains should have been summoned to perform this excavation. There were incomplete and confusing descriptions of where various possible "burn barrels" were located and incomplete numbering and chain of custody." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 116).
b. "The appearance of the remains as found is often critical to the reconstruction of a fatal event or the destruction of a body. In this case, the minimal photographs taken before the excavation revealed very little useful information as there were few close-up photos taken before or during the recovery/excavation process. In the pre-excavation overall photos, the area of interest was largely obscured by the shadows cast by the team of investigators standing nearby. In the few photographs of the" burn pit," there appeared to be numerous dried leaves that obscured nearly all identifiable detail of the material below (Item 26). From Sgt. Jost's and Wisconsin DOJ Special Agent Sturdivant's descriptions, it appeared that the remains showed no anatomical relationship to each other. Some remains were found outside the "burn pit" and no large bones (more resistant to fire) were visible at all. There was not sufficient pre-excavation documentation of the condition of the materials in the pit to establish the sequence or time of deposit of the remains ultimately recovered from the "burn pit." There was no assessment of fuels associated with the fire, other than describing the remains of the steel belts and beading of burned vehicle tires." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 117). ...
e. "Many of the bone fragments shown in Dr. Eisenberg's forensic anthropology photographs appear to be coated with a yellow or tan soil or dust. Dr. Eisenberg reported that she rinsed some of the recovered bone fragments to allow detailed examination. The bone fragments shown in Dr. Eisenberg's forensic anthropology photos, largely consisted of fragments 1-4 cm in length (0.4 to 2"). Many were completely calcined with no charring of organic tissue visible. Others bore charred residues of organic material in the cancellous or spongy structure within. Such damage can be induced by exposure to an open-air fire of ordinary combustibles for six to eight hours or for shorter times (three to four hours) in a well-ventilated fire in a metal enclosure such as a burn barrel or automobile trunk."(Affidavit of Dr. DeHaan, P-C Group Exhibit 37, ~ 20). ...
The process of stoking a fire with additional lumber or stirring with an implement during its active burning will cause the mechanical destruction of the bones as they are calcined by the flames and often, considerable displacement. The larger bone masses (hip joints, shoulder blades, base of skull at the spine) will remain mostly intact even after stoking an extended cremation of an adult body. The appearance, size, and type of bone fragments documented in Dr. Eisenberg's forensic anthropology reports and photographs exactly mirror the fragments recovered after burn-barrel cremations involving frequent stirring and stoking observed by this author. Such destruction was observed in wood-fueled, burn barrel cremations as short as three and one half hours. (Exhibit C, photographs, attached to Affidavit of Dr. DeHaan, P-C Group Exhibit 37,122). ...
In one recent case investigation, the accused described stoking a large, wood-fueled "pyre" with numerous adult human bodies for some 15 hours, then crushing most of the bones with rocks or wood clubs, and then removing the larger, more identifiable body parts that survived for disposal in the river. The hundreds of small fragments that were recovered from the burn site were very similar in size, shape, and condition to the fragments in Dr. Eisenberg's forensic anthropology photos in this case. Note this involved no confinement except for the wood fuel and was accomplished over a span of 15 hours in an open-air burning pit." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, ii 22).
h."It is the opinion of the undersigned that the human remains recovered and examined by Dr. Eisenberg were physically entirely consistent with cremation of an adult human body in a" field" cremation involving a sustained and re-stoked fire for an extended period of time. In tests conducted as part of FFDIC exercises, open field (roadside dump) fires on flat ground, it was observed that the more massive portions of the adult anatomy (base of the skull, shoulders, pelvis) were charred but were not reduced to calcined bone fragments in fires lasting 4-7 hours, but they did retain their anatomical relationship unless mechanically stirred during the fire. The duration of the fire necessary would depend on whether the fire was in the open (like the shallow "burn pit" suggested by the investigators) or in a well-ventilated metal vessel such as a large drum. Such destruction has been seen to be accomplished in as little as three and one half hours in a well-ventilated, well-tended 55 gallon steel drum with wood fuel. Similar destruction in an open pit would require much more time, on the order of six hours or more." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, ii 24).
i. It is the opinion of Dr. DeHaan that "Teresa Halbach's body was not burned in the burn pit behind Steven Avery's garage." Dr. DeHaan bases this opinion on "the reported lack of anantomical continuity of the remains, the findings of similarly calcined fragments in burn barrels and other locations on the property, and the absence of the more massive fragments that normally resist such exposure." Dr. DeHaan has observed "transfers of heavily burned remains under a variety of conditions that resulted in the largest amount of the fragmentary remains being transferred to another location (with the loss of anatomical relationships)." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 125).
j. It is the opinion of Dr. DeHaan "that someone transferred Teresa Halbach's bones to Steven Avery's burn pit. The discovery of larger fragments outside the margins of the burn pit and the finding of human bone fragments with similar degrees of fire damage in numerous other areas (including burn barrels on site) is also consistent with the" dumping" of burned remains into the pit, with some rolling away. I have observed the survival of numerous small bones after being dumped from a burn barrel or similar enclosure onto a tarp or examination table. It should be noted that there were numerous steel vessels on the salvage yard and surrounding properties that could have been used to burn a human body. These were not examined. The wood-fueled boiler and smelter were examined by [Agent] Pevytoe and no residues were detected there." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 125).
k. It is the opinion of Dr. DeHaan that the State's theory of the burning of Ms. Halbach's body in an open-air burn pit behind Steven Avery's garage from around 7:00 p.m. to 11:00 p.m. on October 31, 2005, a period of only 4 hours, is incorrect. Specifically, Dr. DeHaan states that "the State's theory is not supported by the physical evidence." Dr. DeHaan states that "burning a body in an open-air burn pit takes six to eight hours to accomplish to the degree I observed in Dr. Eisenberg's reports and photos." It is Dr. DeHaan's opinion that "the burned bones found in Steven Avery's burn pit could not have been burned to the degree I observed after four hours of burning in an open-air pit like the one behind Steven Avery's garage." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, r 26).
l. It is the opinion of Dr. DeHaan that the State's theory was also incorrect" in its assertion that the burned vehicle bench seat was used to fuel the burning of Ms. Halbach's body. (TT:3/14:98). The burned remains of the bench seat were not found in the burn pit but near it. Its involvement as an external fuel to aid the combustion of a body in the burn pit is speculative and unsupported by any documents I have reviewed." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, r 27).
m. It is the opinion of Dr. DeHaan that the State's theory was also incorrect "in its assertion that burned bones were intertwined with metal belts resulting from the burning of tires. (TT:3/14:99). The State represented to the jury that the bones were fused with the metal belts in a manner that suggested that the tires from which the steel belts came were burned with the body in Mr. Avery's burn pit. Based upon my review of photographs taken on November 8, 2005 and November 10, 2005, on the occasion of the second excavation of Steven Avery's burn pit, the bone fragments appear to simply be mixed among the metal belts. I have had personal experience with burning steel-belted automobile tires in combination with human bodies. During fire exposure, the steel multi-strand wires degrade, break, and fray to form bristles that readily trap any material coming into contact with them, during or after the fire. Small calcined bone fragments are especially easy to trap. This has been observed in test fires where the tires were under or alongside a burned body as well as on top. It should be noted that [Agent] Sturdivant noted that the guard dog's lead was sufficiently long to give him access to at least some of the burn pit. A quantity of the tire wires/belting was observed to be tangled in the dog's lead at one point. Dragging the tire remains across the burned fragments after the fire would result in the accumulation of fragments in the wire. The "burn pit" may have been used previously to dispose of tires, so there was no evidence that the entrapment of the debris occurred during the fire that consumed the remains. From my review of these photographs and reports generated by law enforcement agents at the scene and Dr. Eisenberg in later examinations, there is nothing to suggest that the tires were, in fact, burned with the human bones recovered in Steven Avery's burn pit in the manner described by the State." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 128).
Failure of Trial Defense Counsel to Present a Competent Forensic Anthropologist to Establish that Bones in the Manitowoc County Pit were Human
181. Current post-conviction counsel has retained Dr. Symes, a renowned forensic anthropologist who has worked extensively in the areas of human skeletal biology and skeletal anatomy, forensic toolmark fracture pattern interpretation, including most aspects of trauma to bone, sharp force trauma, special expertise in knife and saw marks in bone, ballistic trauma, healing and acute trauma to bone, peri - vs. postmortem influences on bone, blunt force trauma, and burned bone trauma. Dr. Symes was the recipient of the 15th T. Dale Stewart Award, which is a lifetime achievement award recognized by the American Academy of Forensic Sciences, Anthropology Section. The award recognizes enduring contributions to the field of forensic anthropology and a career marked by accurate, detailed scholarship and remarkable productivity. Dr. Symes' qualifications far exceed those of Dr. Eisenberg or Dr. Fairgrieve in the analysis of traumatic injury to skeletal remains. (Affidavit and CV of Steven Symes, PhD, "Affidavit of Dr. Symes", attached and incorporated herein as P-C Group Exhibit 38, ~ 2).
182. Dr. Symes has offered the opinion, to a reasonable degree of scientific certainty in the field of forensic anthropology, that:
a. A microscopic examination, if performed in 2005, would have determined with a high percentage of accuracy whether the pelvic bones found in the Manitowoc County pit were human in origin; and
b. Histological slides, if made in 2005 from the suspected human pelvic bones, would have determined with a high percentage of accuracy whether the pelvic bones found in the Manitowoc County pit were human.
183. Dr. Symes opines that it was below the standard of practice for a reasonably well qualified and competent forensic anthropologist, such as Scott Fairgrieve, PhD, the defense expert, to have relied exclusively upon photographs of the pelvic bones to complete their forensic examination. (Affidavit and CV of Steven Symes, PhD, P-C Group Exhibit 38, ~ 5).
184. If trial defense counsel had obtained a competent forensic anthropologist who had performed a microscopic and histological examination of the suspected human bones found in the quarry, it would have conclusively established that Ms. Halbach's bones were transported to Mr. Avery's burn pit from another site. ...
FALSE WITNESS TESTIMONY
Current post-conviction counsel's investigator's experiments demonstrate Mr. Fabian's trial testimony is false. Using photographs of Mr. Avery's burn barrel taken by investigators in November 2005, Mr. James Kirby, current post-conviction counsel's investigator, with the assistance of two other witnesses placed Mr. Avery's burn barrel in the same location it was in when Mr. Fabian, according to his testimony, observed it on October 31, 2005. Whenever Mr. Avery burned garbage in his burn barrel, he started the fire using brush and a lighter, not an accelerant. (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Kratz, in his closing, attributed the odor and smoke described by Mr. Fabian to Mr. Avery's burning of Ms. Halbach's electronic devices. (TT:3/14:68). Mr. James Kirby, in his experiment, attempted to recreate the odor of burning plastic described by Mr. Fabian by burning electronic devices identical to those owned by Ms. Halbach in Mr. Avery's bum barrel. Mr. James Kirby allowed the experiment Palm Zire 31 PDA to burn for approximately 14 minutes and the experiment RAZR cell phone to bum for over an hour. Upon taking the RAZR out of the burn barrel, Mr. James Kirby observed that it was burned to a similar degree as the identical cell phone discovered in Mr. Avery's bum barrel. Two witnesses, when standing in the location described by Mr. Fabian at trial, as well as leaning over the burn barrel, detected no odor of burning plastic. (Affidavit and CV of James Kirby, attached and incorporated herein as P-C Group Exhibit 40).
189. On April 11, 2017, a second experiment was conducted where a Canon PowerShot A3l0, the same camera issued to Ms. Halbach by AutoTrader, was burned at a higher temperature than possible in Mr. Avery's burn barrel to determine whether it would emit a detectable odor of burning plastic. Again, there was no detectable odor of burning plastic or heavy smoke emanating from the fire. (Affidavit of Lauren Hawthorne, P-C Exhibit 36; Second Affidavit of Kurt Kingler, attached and incorporated herein as P-C Exhibit 78). In light of the above-described experiments, Mr. Fabian could not have observed heavy smoke and detected the smell of burning plastic as a result of Mr. Avery burning Ms. Halbach's electronic devices in his burn barrel on October 31, 2005. Mr. Avery has consistently maintained that he did not burn garbage in his burn barrel on October 31, 2005. (Affidavit of Steven Avery, P-C Exhibit 4).
Applicable Case Law Re: State's Coercion of Witness to Provide False Trial Testimony
190. A prosecutor's knowing use of false or incredible evidence to obtain a conviction violates a defendant's right to due process guaranteed by the Fourteenth Amendment to the United States Constitution. State v. Nerison, 136 Wis 2d 37, 54 (1987). On occasion it may be discovered that the prosecution's case rests on perjured testimony that the prosecution knew or should have known was perjured. Tucker v. State, 84 Wis. 2d 630, 642 (1978). In such a case, a defendant's conviction must be set aside "... if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976); United States v. Verser, 916 2d 1268, 1271 (7th Cir.1990).
191. The State violates a defendant's due process rights to a fair trial by using and failing to correct false testimony. The crux of a denial of due process is deliberate deception. ...
Unlike the defendant in Whiting, Mr. Avery is not arguing that he was convicted because a State witness contradicted the testimony of other witnesses. Here, Mr. Avery's conviction must be set aside because it has been discovered through recent investigation that Mr. Fabian provided false testimony at Mr. Avery's trial.
194. Mr. Fabian's testimony that he observed heavy smoke and smelled burning plastic, presumably of Ms. Halbach's burning electronic components, has been completely refuted by a simple experiment. Therefore, Mr. Avery has established a due process violation occurred because he has established that:
(1) there was false testimony;
(2) the State knew or should have known it was false; and
(3) there is a likelihood that the false testimony affected the judgment of the jury.
See, State v. Cramer, 2013 WI App 138, ~ 22, 351 Wis. 2d 682 (2013). Additionally, Mr. Avery has established ineffective assistance of trial defense counsel for their failure to detect, by a simple experiment, that Mr. Fabian's trial testimony was false and could have been impeached by them if they had performed such a simple experiment.
195. Mr. Avery must be granted relief because implicit in any dignified concept of due process, and well rooted in American jurisprudence, stands the principle that a conviction obtained through the use of false evidence or testimony, known by representatives of the prosecution, must be set aside in favor of a new trial. See, Miller v. Pate, 386 U.S. 1, 6-7 (1967). This fundamental tenet does not cease to apply merely because the false testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269 (1959). The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. ...
IMPROPER AND INCOMPLETE INVESTIGATION
Significantly, Mr. Avery's trial defense counsel failed to obtain an expert in police procedures and investigations, such as Mr. McCrary, who could have educated the jury about the fundamental failures of the investigation of the homicide of Ms. Halbach. Specifically, trial defense counsel could have presented testimony, through an expert in police procedures and investigations, that:
a. Law enforcement failed to study the lifestyle and relevant history shared by Ms. Halbach and those close to her;
b. Law enforcement failed to begin their investigation with a credible investigation of those closest to Ms. Halbach;
c. Law enforcement failed to identify which witnesses intentionally misled the investigation;
d. Law enforcement's investigation of the homicide of Ms. Halbach failed when they constructed a flawed narrative of the crime and built organizational momentum toward the resolution of that flawed narrative;
e. Law enforcement's investigation was characteristic of tunnel vision and premature closure when they closed the investigation to alternative theories; and
f. Law enforcement's investigation was characteristic of confirmation bias, anchor bias, and groupthink when they failed to consider suspects other than Mr. Avery. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, i 25).
204. Mr. McCrary holds all following opinions to a reasonable degree of professional certainty in the fields of police practices and investigative procedures. Every meaningful investigation or analysis begins with a study of the victim. For example, investigators must seek to identify who the victim was and what was going on in his or her life at the time of the event when initiating a death investigation. Other salient details of the victim's life include whether the victim had expressed any concerns about his or her security, whether the victim had expressed any fears, whether the victim was in a relationship, and whether the victim had any significant issues in past dating relationships. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, ~ 4).
205. According to the FBI Uniform Crime Report, most victims of homicide are killed by someone known to them. Further, the motive to kill typically is rooted in interpersonal conflict between the victim and the offender. Therefore, credible homicide investigations begin with those closest to the victim - e.g., family members, intimate partners, and close friends - and move out, as if in concentric circles, only when those closest to the victim have been thoroughly investigated and eliminated as suspects. If, through methodical investigation, those closest to the victim can be ruled out as suspects, the investigation moves out incrementally to people who knew the victim, like associates, colleagues, and acquaintances. Mr. McCrary has offered the opinion that someone who had no substantial prior relationship with the victim is unlikely to be the offender. (Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 5). ...
210. Cognitive biases such as confirmation bias, anchor traps, organizational momentum, and groupthink commonly cause investigators to make avoidable mistakes and jeopardize the successful resolution of their investigation. The failure of such criminal investigations are rarely examined. Therefore, the presence and effect of these biases often remain unexamined. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 110).
211. Tunnel vision emerges when investigators unduly limit the alternatives to their fixed hypothesis such that other suspects who should be investigated are eliminated from the investigation and evidence that cuts contrary to the dominant narrative is discounted or ignored. Similarly, premature closure results when investigators make early judgments about the resolution of their investigation and defend those judgments tenaciously, even in the face of conflicting evidence. Both tunnel vision and premature closure are evidence of a tendency to put more weight on evidence that supports the dominant hypothesis than evidence that weakens it." Arresting the first likely suspect, then closing the investigation off to alternative theories, is a recipe for disaster; tunnel vision has been identified as a leading cause of wrongful convictions." (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 1110-11).
212. Confirmation bias is a type of selective thinking in which an individual is more likely to notice or search for evidence that confirms his or her hypothesis while ignoring or refusing to search for contradicting evidence. Anchor traps occur when "a person does not consider multiple possibilities, but quickly and firmly latches onto a single one, sure that he has thrown his anchor down just where he needs to be." Group think is the reluctance to think critically and challenge the dominant theory (no one wants to tell the emperor he has no clothes). It occurs in highly cohesive groups under pressure to make important decisions." These cognitive biases contribute to investigators moving prematurely from an evidence-based investigation to a suspect-based investigation, where the attitude becomes, "We know who did it. Now let's get the evidence that proves it." (Affidavit of Gregg McCrary, P-C Group Exhibit 42, r 12, 14).
213. Regardless of what seemingly valid alibis are offered, potential suspects should be examined for injuries when investigators believe that a violent crime has occurred. Injuries are best considered to be transient evidence and if they are not documented early in an investigation, they will be lost. All alibis and statements should be thoroughly investigated and corroborated before eliminating anyone as a suspect. Any statements that contain non-public information about the crime or crime scene are of particular importance as it is the type of evidence that can turn a non-suspect into a suspect or elevate a given suspect into a prime suspect. The key issue in those situations is how the individual obtained that information. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, r 15).
Failure of Law Enforcement to Investigate Ms. Halbach's Background to Realize that She Was At An Elevated Risk of Becoming a Victim of Violence
214. "[Ms.] Halbach, the victim in this case, could be considered to be at an elevated risk for becoming the victim of violence due to her prior abusive relationship with her ex- boyfriend, [Mr.] Hillegas, and her business, which involved nude photography." Third party advertisers began advertising Ms. Halbach's business as providing "adult entertainment services." Although there is no proof that Ms. Halbach herself chose to advertise her business as providing "adult entertainment services," her nude photography business led others to advertise her business as providing "adult entertainment services." (Affidavit of Thomas Pearce, attached and incorporated herein as P-C Exhibit 44; Affidavit of Gregg McCrary, P-C Group Exhibit 42, 1 17) ("Second Affidavit of James Kirby," attached and incorporated herein as P-C Exhibit 79).
VALID THIRD PARTY SUSPECT
Failure of Law Enforcement to Identify Prior Abuse in Ms. Halbach's Romantic Relationships to Correctly Assess the Motive for Her Murder
215.According to Mr. McCrary, based upon violent crime statistics, the killer most likely knew Ms. Halbach and may have been involved, at some point in time, in a romantic relationship with her. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 15). The relationship was characterized by verbal and physical abuse by the killer towards Ms. Halbach. (Affidavit of Thomas Pearce, attached and incorporated herein as P-C Group Exhibit 44). Even after Ms. Halbach ended their relationship, the killer continued to attempt to exert control over her by living nearby and coming to her home frequently. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 118).
216. Before Ms. Halbach's murder, the killer most likely became aware that she was sexually involved with a married man and a second male who was Avery close friend of the killer's. (11/4/05 CCSD Interview of Bradley Czech ("Mr. Czech") ("Bradley Czech Interview"), attached and incorporated herein as P-C Exhibit 43) (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 117).
The Killer's Post-Mortem Activities to Conceal Evidence and Frame Mr. Avery
217. The killer wanted as much time as possible before the people close to Ms. Halbach realized she was gone. As she received more and more phone calls, her voice mailbox became full, something uncharacteristic of Ms. Halbach. The killer, who knew the password to her voice mailbox, deleted several of Ms. Halbach's voice messages to buy himself time before Teresa's family and friends realized that she was missing and began searching for her. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 122).
218. Before her death, Ms. Halbach was known to regularly check and respond to her voicemails. (11/9/05 DCI Interview of Thomas Pearce, attached and incorporated herein as P-C Exhibit 52, STATE 770). If family and friends were to call Ms. Halbach and receive a message that Ms. Halbach's voicemail was full, it can be assumed that they would have been alarmed. When Ms. Halbach's voicemail was discovered to be full on November 3, 2005, it triggered her friends and family to notify law enforcement that she was missing. The killer deleted voice messages from Ms. Halbach's voicemail in order to prolong the window of time before Ms. Halbach was reported missing, thereby increasing the amount of time the killer had to dispose of Ms. Halbach's body and personal effects. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 122).
219. The method of deletion, in order to leave no record in Ms. Halbach's cell phone records, could only be accomplished in one way: her voicemail had to be accessed from another phone by using Ms. Halbach's voicemail password. Ms. Halbach's phone records do not indicate that her voicemail was accessed using her own phone after 2:12 p.m. on October 31, 2005. This indisputable fact means the person who accessed Ms. Halbach's voicemail, prior to the authorities realizing she was missing on November 3, 2005, had to be the killer who knew Ms. Halbach's password, which would be required to delete voicemails recorded to her phone. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, ~ 22). The killer knew Ms. Halbach very well in order to know her password. Clearly this person was not Mr. Avery.
220. Knowing that he was likely to be a prime suspect due to his prior romantic relationship with Ms. Halbach, the killer, who was highly organized, devised a plan to burn the body and plant evidence which would focus law enforcement on someone else. Because the killer found appointment details in the paperwork in the RAV-4, he knew Ms. Halbach had an appointment with Mr. Avery earlier that afternoon. The killer formulated a plan to move the body and the vehicle near the Avery property with the intent of planting the RAV-4 on the Avery property and Ms. Halbach's bones and electronic components as soon as the body and electronic components were burned in the adjacent gravel pit. (Trial Exhibits 17, 20; TT:2/13:79-80, 92). The killer would have been familiar with Mr. Avery and his fame as a wrongfully convicted exoneree who was suing Manitowoc County. (Trial Exhibit 17; TT:2/13:79-80) (Affidavit of Gregg McCrary, P-C Exhibit 42, ~~ 7, 17, 25).
221. The killer wanted to control the investigation and direct it towards the single goal of framing Mr. Avery for the murder. To accomplish that goal, he volunteered to take control of the citizen search as a means of both staying informed and controlling the focus of the investigation. In his initial contact with law enforcement, the killer immediately attempted to misdirect their investigation by not telling them about his relationship with Ms. Halbach or her relationship with other men. (TT:2/13: 189). The killer participated in the discovery of major pieces of evidence, even going as far as leading searchers to the vehicle that he planted. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, i 7).
The Killer, And Not Law Enforcement, Planted Mr. Avery's Blood in the RAV-4
222. Current post-conviction counsel's blood spatter expert has demonstrated that Mr. Avery's blood was planted in Ms. Halbach's RAV-4 (see i,i 129-134). The only parties who may have had motive to plant evidence inculpating Mr. Avery were the killer and law enforcement, namely MCSD, in light of Mr. Avery's pending civil action against Manitowoc County.
223. However, current post-conviction counsel has determined that MCSD officers did not have time to plant Mr. Avery's blood in the RAV-4 on November 3, 2005. After Sgt. Colborn came to the Avery properly on November 3 to speak with Mr. Avery around 7:00 p.m., he attended a meeting at the MCSD at 8:00 p.m. (T:2/20: 73, 78). Sgt. Colborn's presence at the MCSD was corroborated by Inv. Dedering. For Sgt. Colborn to arrive at the MCSD, an approximately 23-minute drive from the Avery property (Google Maps Directions from Avery Property to MCSD, attached and incorporated herein as P-C Exhibit 49), by 8:00 p.m., he must have departed the Avery property by 7:37 p.m. Therefore, Sgt. Colborn would have had a short window of opportunity to obtain a spare key to Ms. Halbach's RAV-4, locate Ms. Halbach's RAV-4, drive Ms. Halbach's RAV-4 from Kuss Road to Mr. Avery's trailer through the field, drive back to a hiding place after being detected, return to the trailer a second time, collect Mr. Avery's blood from his bathroom sink, and plant Mr. Avery's blood in Ms. Halbach's RAV-4.
224. The killer was familiar with the Radandt and Manitowoc County pits. He devised a plan to bring the RAV-4 from the murder scene to the Avery property. His chief objective was to plant the vehicle on the Avery property. The killer was organized and methodical, and likely had a background in science. He knew that he needed to put something with the DNA of Mr. Avery in the RAV-4. Evidence from the scent and cadaver dogs supports the conclusion that the killer drove the RAV-4 onto the Avery property from Kuss Road, across a field to the vicinity of Mr. Avery's trailer. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 42-43; Affidavit of Steven Avery, P-C Exhibit 4).
225. Once Mr. Avery departed, the killer began to drive the RAV-4 onto the Avery property. When Mr. Avery spotted the RAV-4's tail lights and turned around and drove back to check it out (Affidavit of Steven Avery, P-C Exhibit 4), the killer retreated to Kuss Road. Once Mr. Avery left again, the killer drove back to the trailer. The south door on the east side of Mr. Avery's trailer was unlocked. (Affidavit of Steven Avery, P-C Exhibit 4), and the killer entered the trailer, intent on finding an item of Mr. Avery's with his DNA that he could use to plant DNA in the RAV-4 to connect Mr. Avery to Ms. Halbach's murder. In the small trailer, the killer noticed fresh blood in the bathroom sink. The killer recognized from his scientific background that if this blood was in Ms. Halbach's RAV-4, Mr. Avery would immediately become the only suspect. The killer quickly collected the blood from the sink in Mr. Avery's bathroom and deposited the blood in several spots throughout the RAV-4. The killer recognized that the blood had to be planted quickly, within 15-28 minutes and before it coagulated. (Affidavit of Dr. Blum, P-C Group Exhibit 47, ~ 12). He then hid the RAV-4 in the vicinity of the Kuss Road cul-de-sac.
226. On November 3, the killer learned vital information from law enforcement during his police interview. He quickly realized that law enforcement was focused on Mr. Avery and not on him. He was not asked to explain his past relationship with Ms. Halbach or to provide an alibi for the afternoon and evening of October 31. He was not asked about the scratches on his left hand or why he knew Ms. Halbach's voicemail password. The killer was not treated like a suspect. (TT:2/13:194-95). Mr. Avery would immediately become the only suspect.
227. On November 4, the killer decided to make another attempt to plant the vehicle on the opposite side of the Avery property, that is, in the southeast corner, close to the crusher. The killer, who drove the RAV-4 into the Radandt Pit in the late afternoon of November 4, was aided by an accomplice who drove another vehicle into the Radandt Pit to give the killer a ride out after the killer planted Ms. Halbach's vehicle on the Avery property.
228. The killer led law enforcement to Ms. Halbach's vehicle later in the evening on November 4. The killer represented to law enforcement that he would be willing to search the Avery property, something that the police could only do with a warrant based on probable cause which they did not have on November 4. The killer, accompanied by law enforcement, went to the Avery property and the killer proceeded to Ms. Halbach's vehicle in the southeast corner of the salvage yard. When the killer looked into Ms. Halbach's vehicle, he called out," it's hers ," because he recognized her personal items in the vehicle in addition to her vehicle itself.
229. Once the vehicle was found on the Avery property, the investigation of any other potential suspects halted and, just as the killer planned, the whole case was focused on Mr. Avery. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 121). The killer duped law enforcement into focusing exclusively on Mr. Avery and helped them justify planting additional evidence to frame Mr. Avery.
The Killer Planted the Bones and the Electronic Devices
230. As the leader of the search team, the killer had unrestricted access to the Avery salvage yard and surrounding properties, closed off to public access. This was critical, because the killer still was in possession of the burned bones and the electronic devices of Ms. Halbach. Access to the Avery property allowed him to plant the bones and electronic devices of Ms. Halbach in Mr. Avery's bum pit and burn barrel.
The Killer Knocked Out the RAV-4 Parking Light While Trying to Plant RAV-4 on Mr. Avery's Property
231.Mr. Avery did not see any front-end damage to Ms. Halbach's vehicle when she came to his property on October 31, 2005. (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Schmitz, an earlier appointment of Ms. Halbach's, noted that Ms. Halbach's vehicle "looked very new," and did not note any damage. (11/3/05 CCSD Interview of Steven Schmitz, attached and incorporated herein as P-C Exhibit 50, STATE 1210). However, when Ms. Halbach's vehicle was discovered on the Avery salvage yard on November 5, the driver's side parking light was broken out and the killer had placed the broken light in the rear cargo area of her RAV-4. When the killer damaged the vehicle, he did not want the parking light found anywhere other than the Avery property because if any pieces of the parking light were found elsewhere, the State's entire theory that Mr. Avery was the killer and the RAV-4 never left Mr. Avery's property would disintegrate. The killer would be highly motivated to pick up the parking light if he had a collision with a post that knocked the parking light to the ground near Mr. Avery's trailer. The killer put the parking light in the rear cargo area of the RAV-4 and planted the RAV-4 on the Avery properly.
232. Only someone who committed the murder and/or was involved in the effort to plant the vehicle on the Avery property would know the significance of the broken parking light and that it had been placed in the RAV-4 to conceal the fact that the vehicle was moved onto Mr. Avery's property from elsewhere. Northwest of Mr. Avery's trailer, between the Avery property and the cul-de-sac at Kuss Road, there was a metal post protruding approximately 2 ½ feet from the ground. (Photo showing post, P-C Exhibit 51). When the killer attempted to plant Ms. Halbach's vehicle near Mr. Avery's trailer, he collided with this post, causing the damage to the front end of Ms. Halbach's RAV-4 and knocking out the driver's side parking light. He recognized the need to retrieve the parking light because leaving it, or any pieces of it, in the field would show the RAV-4 left the Avery property contrary to Mr. Kratz's theory that the RAV-4 never left the Avery property. (TT:3/15:77-78).
Only One Person Meets the Requirements of Denny as a Third Party Suspect With Motive, Opportunity and a Connection to the Crime Abusive History
233. Mr. Hillegas was Ms. Halbach's ex-boyfriend. Mr. Hillegas and Ms. Halbach knew each other since they were freshmen in high school, and dated on and off for five years. (TT:2/13:156, 173). Although Ms. Halbach and Mr. Hillegas were romantically involved during their high school and college years, they were no longer together in 2005, although Ms. Halbach reported to friends that Mr. Hillegas continued to check her out despite being broken up for years. (Email from Ms. Halbach, attached and incorporated herein as P-C Exhibit 53, STATE 4030).
234. According to Mr. Pearce, a friend and colleague of Ms. Halbach, Ms. Halbach had been in a verbally and physically abusive relationship prior to or during her internship with Mr. Pearce. Ms. Halbach interned with Mr. Pearce in 2003 during her senior year of college when she was still involved with Mr. Hillegas. (Affidavit of Thomas Pearce, P-C Exhibit 44).
Jealousy Was The Motive
235. While Mr. Hillegas maintained an interest in Ms. Halbach, she was no longer romantically interested in him. (Email from Ms. Halbach, P-C Exhibit 53). Ms. Halbach became sexually involved with her housemate, Mr. Bloedorn, in the months preceding her disappearance. (Bradley Czech Interview, P-C Exhibit 43, STATE 2523-24). Reportedly, Mr. Bloedorn was also Mr. Hillegas' best friend. (TT:2/13:175). Mr. Hillegas committed perjury at trial when he described Ms. Halbach's relationship with Mr. Bloedorn as platonic and never romantic or sexual in nature. (TT:2/13: 157). Current post-conviction counsel's investigator Mr. Steven Kirby attempted to interview Mr. Bloedorn about false statements he had made to the police in 2005. Mr. Bloedorn refused to sit for an interview with Mr. Steven Kirby, but when he was told that current post-conviction counsel planned to name a suspect in Ms. Halbach's murder, Mr. Bloedorn immediately blurted out, "You mean Ryan Hillegas." (Affidavit of Steven Kirby, attached and incorporated herein as P-C Exhibit 83). Another point of jealousy for Mr. Hillegas might have been the fact that Ms. Halbach, as part of her business, took nude photographs of men and women and this activity led her to become sexually involved with one of her clients, Mr. Czech. Mr. Czech was married to someone else at the time. Ms. Halbach kept the nude photographs that she had taken of Mr. Czech and his then-wife in the bedroom of her residence (11/4/05 CCSD Interview of Jolene Bain, "11/4/05 Jolene Bain Interview", attached and incorporated herein as P-C Exhibit 54, STATE 2511), a home that Mr. Hillegas frequented and moved into after Ms. Halbach's death. (11/14/05 CCSD Report by Sgt. Tyson, attached and incorporated herein as P-C Exhibit 55, STATE 1466; Correspondence Regarding Nude Photography, attached and incorporated herein as P-C Group Exhibit 56, STATE 3898, 3849; Affidavit of Thomas Pearce, P-C Exhibit 44).
236. Mr. Czech left a text message for Ms. Halbach at 12:45 p.m. on October 31, 2005. Mr. Czech was completely forthcoming in his interview with law enforcement on November 4, 2005 that he had texted Ms. Halbach. He was not asked the content of the message nor to show the message to law enforcement during his interview. At no point did law enforcement attempt to obtain the text message from Mr. Czech. (11/4/05 CCSD Interview of Bradley Czech, P-C Exhibit 43). Although Mr. Czech did not have an alibi for October 31, and another witness had described that Ms. Halbach had broken off her relationship with Mr. Czech but he continued to call her, Mr. Czech did not meet the Denny requirements. (11/4/05 CCSD Interview of Jolene Bain, P-C Exhibit 54).
237. For some unknown reason, Mr. Hillegas called Mr. Czech on November 3, 2005. According to their phone records, this was the first time Mr. Hillegas talked to Mr. Czech on the phone. (Ryan Hillegas Phone Records, attached and incorporated herein as P-C Exhibit 57; Bradley Czech Interview to verify Bradley Czech's phone number, P-C Exhibit 43).
Mr. Hillegas Intentionally Misled Investigators
238. When Mr. Hillegas volunteered false information about when the parking light damage occurred, it raised red flags about his involvement in the murder and the effort to frame Mr. Avery. (12/14/05 DCI Report, attached and incorporated herein as P-C Exhibit 58, STATE 1144). Certainly, Mr. Hillegas had no motive to frame Mr. Avery unless he himself murdered Ms. Halbach. It is difficult to imagine a much more compelling motive to frame Mr. Avery than the one possessed by the murderer of Ms. Halbach. The alleged motive, presented by trial defense counsel, that MCSD investigators were trying to derail Mr. Avery's civil rights lawsuit against them pales in comparison to the killer's motive to frame Mr. Avery.
239. Mr. Hillegas intentionally diverted investigators by reporting that the damage to the driver's side bumper and parking light of Ms. Halbach's RAV-4 occurred months before her disappearance and that she had filed an insurance claim for the damage. (12/14/05 DCI Report, P-C Exhibit 58, STATE 1144). Current post-conviction counsel, through its investigator, has confirmed that Ms. Halbach never filed an insurance claim for this damage to her vehicle, and further contends that the damage to Ms. Halbach's vehicle occurred after she left the Avery property on October 31, 2005. (Response to Subpoena to Erie Insurance, attached and incorporated herein as P-C Exhibit 59). The most reasonable explanation for Mr. Hillegas' intentional misleading of law enforcement regarding the damage to Ms. Halbach's parking light is that Mr. Hillegas wanted to divert attention from the parking light that was tossed in the rear cargo area of the RAV-4 by the killer when he was trying to plant the car on Mr. Avery's property and inadvertently hit a post on Radandt's property. Mr. Hillegas would not want the searchers looking for other pieces of the parking light on the Radandt property because, if those pieces were found, it would destroy the State's narrative that, after the murder, the RAV-4 never left the Avery property. If the narrative implicating Mr. Avery was refuted, the investigators might begin looking at more likely suspects such as Mr. Hillegas himself.
Opportunity
240. Mr. Hillegas was trained as a nurse but was unemployed in October and November 2005. He had no alibi for October 31, 2005, the date Ms. Halbach was murdered, or the subsequent days when her body was burned and bones planted. (TT:2/13:174).
241. Mr. Hillegas was never asked by law enforcement to provide an alibi for October 31, 2005. (TT:2/13: 194). Trial defense counsel failed to conduct any substantive investigation of Mr. Hillegas, choosing to name him as a potential suspect at one point but failing to meet the requirements of Denny.
242. Mr. Hillegas' cell phone records show significant gaps during time periods in question. On October 31, 2005, there was a six hour gap -- a time frame in which there were neither incoming nor outgoing calls -- from 9:41 a. m. to 3:48 p.m. (Ryan Hillegas Phone Records, P-C Exhibit 57). It is most likely that, during this time frame, Ms. Halbach departed the Avery property, departed the Zipperer property, and was killed after she arrived home at approximately 3:40-3:50 p.m. Ms. Halbach's day planner indicated that she wanted to "get Sarah's stuff from mom" at about 3 p.m. and "do biz paperwork" at approximately 4:30 p.m. ("Ms. Halbach's day planner," attached and incorporated herein as P-C Exhibit 45). Also on October 31, there was an over two-hour gap in Mr. Hillegas' phone records from 3:50 p.m. to 6:01 p.m. (Ryan Hillegas Phone Records, P-C Exhibit 57).
243. Mr. Hillegas' phone records have an over 17-hour gap from 7:47 p.m. on October 31, 2005, to 1:31 p.m. on November 1, 2005, during the time where Ms. Halbach's body was transported and burned. Subsequently, Mr. Hillegas had more suspicious gaps in calls. There was a six-hour gap in phone activity on November 2, 2005, from 10:06 a.m. to 4: 12 p.m., and a gap on November 3, 2005, from 7:31 p.m. to 8:10 p.m, the time when Mr. Avery reported seeingheadlights taillight on his property. (Affidavit of Steven Avery, P-C Exhibit 4). His last call on November 3, 2005, was at 10:44 p.m.; Mr. Hillegas did not make another call until 7:52 a. m. the next morning. On November 4, from 4:15-7:25 p.m., Mr. Hillegas received 21 calls from an unidentified, hidden phone number. It is reasonable to conclude that the calling party intentionally hid its phone number and may have been law enforcement. It is during this time period that Sgt. Colborn called dispatch to confirm the license plate on Ms. Halbach's car. (See ,i 256, infra) (Ryan Hillegas Phone Records, P-C Exhibit 57, pp. 8-10; Trial Exhibit 212, Track 3).
244. Mr. Hillegas had access to Ms. Halbach's Cingular Wireless account and knew her username and password, as evidenced by Mr. Hillegas' admission that he used her username and password to obtain her phone records after she went missing. (TT: 2/13:159).
Opportunity to Conceal and Plant
245. Mr. Hillegas called Ms. Halbach's phone at 6:42 p.m. on November 1, 2005. Mr. Hillegas has admitted that when he called on Thursday, November 1, 2005, an automatic message played saying that Ms. Halbach's voicemail box was full. (TT:2/13:183). However, Mr. Hillegas' testimony is undermined by the fact that his call only lasted 4 seconds; by comparison, Mr. Avery's call, which also generated an automated message that the voicemail box was full, lasted 13 seconds, more than three times longer than Mr. Hillegas' call. (Ms. Halbach's cell phone records ("New Cell Records"), attached and incorporated herein as P-C Exhibit 72). Sometime after that call and before the call of Mr. Pearce when her voicemail box was full again, the killer deleted voice messages.
246. Scratches are visible on the back of Mr. Hillegas' left hand in footage taken prior to the discovery of the RAV-4 on November 5, 2005. Current post-conviction counsel's forensic pathologist, Dr. Blum, has opined that Mr. Hillegas' injuries are consistent with scratches from fingernails. Dr. Blum has confirmed that photographs of Ms. Halbach taken close to her death establish that her fingernails were of adequate length to inflict such scratches on Mr. Hillegas left hand. (Photographs of Mr. Hillegas' Hands, attached and incorporated herein as P-C Group Exhibit 60; Affidavit of Dr. Blum and video reenactment of likely scenario creating injury pattern, P-C Group Exhibit 47; Affidavit of Gregg McCrary, P-C Group Exhibit 42, i 25).
247. The most obvious motive for burning Ms. Halbach's body would be if the killer had a known and established relationship with Ms. Halbach and his DNA was on her body from a struggle or rape. Additionally, the burning of the body would allow him to move or plant the bones and divert the suspicion away from himself, because he was likely to be a prime suspect due to his prior abusive relationship with Ms. Halbach. Mr. Avery would not need to risk detection by others by burning Ms. Halbach's body in an open pit 20 feet from his trailer. Mr. Avery could have crushed the vehicle and disposed of the body on the hundreds of acres surrounding his properly.
Mr. Hillegas Accessed Ms. Halbach's Voice Mailbox
248. After hearing Ms. Halbach's voicemail was full, Mr. Hillegas, who had no trouble accessing Ms. Halbach's Cingular Wireless account, would be able to delete some of her voicemails in order to prevent family and friends from becoming concerned by a full voice mailbox. Clearly, the killer would not want Ms. Halbach's voice mailbox to be full because friends and family calling her would become concerned about her well-being and contact the authorities.
249. Ms. Halbach's voice mailbox had a twenty-minute capacity. (Cingular Basic Voicemail Features, attached and incorporated herein as P-C Exhibit 61). When Mr. Avery called Ms. Halbach's phone at 4: 35 p.m. on October 31, his phone call went directly to the automated message which indicated that the voice mailbox was full, meaning her voice mailbox was occupied by twenty minutes of voicemails. When Ms. Halbach's colleague, Mr. Pearce, called her on November 2 around noon, her voice mailbox was full, meaning her voice mailbox was occupied by twenty minutes of voicemail again. (TT:2/12: 199- 200). According to Agent Fassbender's report documenting his receipt of voicemail records from Cingular, five minutes and eleven seconds worth of voice messages were left between when Mr. Avery found Ms. Halbach's voicemail to be full and when Mr. Pearce found Ms. Halbach's voicemail to be full. Therefore, to make room for the voice messages that were recorded between Mr. Avery's call and Mr. Pearce's call, at most five minutes and eleven seconds worth of voice messages were deleted by the killer between when Mr. Avery called and when Mr. Pearce called. (6/12/06 DCI Report ("Agent Fassbender VM Report"), attached and incorporated herein as P-C Exhibit 62).
250. After Mr. Pearce called around noon on November 2, 2005, three minutes and 45 seconds of voice messages were recorded to Ms. Halbach's voicemail before her voicemail was widely reported to be full on the evening of November 3, 2005. Therefore, space in Ms. Halbach's voicemail had to be freed up for more voicemails to be recorded, so at most three minutes and forty-five seconds worth of voice messages were deleted after Mr. Pearce called. (Agent Fassbender VM Report, P-C Exhibit 62). The killer could have deleted Mr. Czech's text message without leaving proof that he entered the phone.
TRIAL DEFENSE ATTORNEYS DID NOT PROPERLY INVESTIGATE - IF SO, THEY WOULD HAVE NAMED RYAN HILLEGAS AS THIRD PARTY SUSPECT
Trial Defense Counsel Failed to Properly Investigate a Variety of Topics: Sgt. Colborn's Dispatch Call; Time lines; Voicemail Deletions; Items from Maribel Park; Suspected Burial Site; Veracity of Police Reports; Witness to the RAV-4 Planting on November 4 Applicable Case Law Re: Trial Defense Counsel's Duty to Investigate
265. In State v. Thiel, 264 Wis.2d 571 (2003), the Wisconsin Supreme Court granted post-conviction relief after the defense attorney at trial failed to conduct a significant investigation. There, the defendant set forth precisely what would have been revealed had the defense attorney conducted an investigation consistent with the defendant's constitutional right to counsel. As in Thiel, relief is warranted. Thiel also supports Mr. Avery's position that relief is warranted because his trial defense attorneys were ineffective in failing to properly review the discovery prior to Mr. Avery's trial. In Thiel, the defendant's allegation that his trial attorney had not reviewed all of the discovery constituted an additional basis for the Supreme Court to grant relief. The same result is compelled here.
Trial Defense Counsel's Failure to Investigate and Establish the Correct Timing of Sgt. Colborn's Dispatch Call and Discovery of the RAV-4
266. On November 4, 2005, Sgt. Colborn discovered Ms. Halbach's vehicle and called dispatch, on a personal line (TT:3/15:74-78), to confirm Ms. Halbach's license plate number. (TT:2/20: 180-182). Audible in a recording of Sgt. Colborn's call to Manitowoc dispatch regarding the victim's plate number, a third party states, "it's hers." (Enhanced Audio Clip from Track 3 of Trial Exhibit 212, P-C Exhibit 66).
Scent Tracking Dogs Showed that Ms. Halbach's Vehicle Was Moved Onto the Avery Property
251. Scent tracking dogs gave trained alerts in the wooded area south of the Kuss Road cul-de-sac and between Mr. Avery's trailer and the Kuss Road cul-de-sac. (Sent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 43, 45-46). Some of the scent tracking dogs deployed in the search for Ms. Halbach were trained to detect decomposing human remains. These dogs are trained to give alerts when they smell human blood or other decomposing tissue. (TT:2/16: 17). The other scent tracking dogs deployed to the Avery property were trained to follow the scent of a living person when given an exemplar scent, e.g., the insole of a shoe belonging to Ms. Halbach, as was used in this case. The live scent tracking dogs' alerts establish that Ms. Halbach's vehicle, with her body still inside, was driven between Kuss Road and Mr. Avery's trailer and was in the wooded area south of the Kuss Road cul-de-sac. A human remains detection dog gave a trained alert in the wooded area south of the Kuss Road cul-de-sac, where a suspected burial site was discovered. Many dogs converged on this suspected burial site. A shallow ditch had been dug wherein plastic similar to a tarp was discovered. Sgt. Colborn persuaded everyone it was not a burial site, but no evidence supported that conclusion. Other scent tracking dogs led their handlers through the Radandt Pit, traveling from the place Ms. Halbach's RAV-4 was discovered to Jambo Creek Road, where a new witness observed a vehicle matching the description of Ms. Halbach's enter the Radandt and Manitowoc County Pits prior to its discovery on November 5, 2005. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46) ("11/7/05 WSCL Report regarding Suspected Burial Site," attached and incorporated herein as P-C Exhibit 82).
252. Mr. Hillegas was aware of Sheriff Pagel's intention to conduct aerial surveillance of the Avery and surrounding properties on November 4, 2005, to search for Ms. Halbach's vehicle. Mr. Kratz admitted that the RAV-4 was not visible in footage taken during the November 4, 2005, aerial surveillance. (TT:3/14:53). After the flyover ended around 6:00 p.m. on November 4 (11/4/05 CCSD Report, attached and incorporated herein as P-C Exhibit 63, STATE 1244), the killer drove Ms. Halbach's vehicle to the southeast corner of the Avery property. A new witness describes seeing a vehicle similar to Ms. Halbach's RAV-4, followed by a white jeep, enter the Radandt Pit from Jambo Creek Road using an access road immediately south of his house. Only the white jeep returned. (See ~~ 290- 291, inf,-a).
253. The killer parked the RAV-4 in the southeast corner of the Avery property on a ridge overlooking a pond. The killer parked the RAV-4 facing west although the vehicles surrounding the RAV-4 all faced east and tried to conceal the RAV-4 using tree branches, cardboard boxes, and a rusty car hood as an explanation for why the car was not seen in the flyover video.
254. The killer returned to the Avery property with Sgt. Colborn in the evening on November 4, 2005, under the pretense of helping Sgt. Colborn search for Ms. Halbach's vehicle. Mr. Avery's brother Chuck told police that on November 4 he saw unidentified headlights in the salvage yard that evening. (P-C Group Exhibit 10, STATE 109). Sgt. Colborn, without probable cause for a search warrant for the Avery property, unwittingly relied upon the killer, a civilian, to find Ms. Halbach's vehicle on the Avery property.
Above are images captured by Google Maps in September 2009 of Andy Colborn's driveway, and in his driveway is a 1999 white Isuzu Rodeo (SUV).
255. The individual who helped Sgt. Colborn to the RAV-4 on the Avery property was most likely the killer because he was able to enter the Avery property and quickly located the vehicle in the dark or with limited lighting. His words "It's hers," shouted out when he looked in the vehicle and clearly recognized her personal effects, established that he was a close friend of Ms. Halbach. Sgt. Colborn called MCSD dispatch to confirm Ms. Halbach's license plate number. (Trial Exhibit 212, Track 3). The dispatcher who answered Sgt Colborn's call usually worked from 2:00-10:00 p.m. (MCSD work dispatch records for 2007, attached and incorporated herein as P-C Exhibit 65). At 7:20 p.m. on November 3, 2005 Chuck called Mr. Avery about seeing headlights in the area where Ms. Halbach's vehicle was found. (Page from Steven Avery's Phone Records, P-C Exhibit 10, STATE 1586; Pages from MCSD Summary Report to verify Chuck's phone number, P-C Exhibit 11, STATE 93). By the time Mr. Avery went to check out this sighting, the headlights were off. Mr. Avery called Chuck back at 7:25 pm to report that he could not see the headlights. The headlights were from Sgt. Colborn's personal vehicle and he had a friend of Ms. Halbach with him to search the Avery property without a search warrant because he did not have probable cause to be on the Avery property at that point in time. (Enhanced Audio Clip From Trial Exhibit 212, Track 3, attached and incorporated herein as P-C Exhibit 66).
Mr. Hillegas' Activities After Ms. Halbach's Death
256. In the days following Ms. Halbach's disappearance, Mr. Hillegas spearheaded the citizen search for Ms. Halbach. (TT:2/13:162). Mr. Hillegas misrepresented his identity when he became the leader of the search. (Ryan "Kilgus" Map, attached and incorporated herein as P-C Exhibit 67, State_1_3783). Mr. Hillegas continued to misrepresent his true identity as evidenced by Wisconsin Department of Justice Report of November 16, 2005 in which he was still described as "Ryan Kilgus" and "Avery close friend of Teresa's." At that time, Mr. Hillegas provided addresses for where Ms. Halbach donated blood and plasma and addresses of her doctors including a cardiologist, an OB/GYN, and a dermatologist. Mr. Hillegas also provided a phone number for Ms. Halbach's pharmacy. (Wisconsin Department of Justice Report of November 16, 2005 pages STATE 744-46, attached and incorporated herein as P-C Group Exhibit 64).
257. Mr. Hillegas made maps for searches and directed volunteers as to where they should be looking for Ms. Halbach. (TT:2/13: 164-165). He also made a hand-drawn sketch of his investigation, noting that he found a condom wrapper on the corner of the lot by the first house on Jambo Creek Road. (Ryan "Kilgus" Map, P-C Exhibit 67). Mr. Hillegas directed Pam to search the Avery property and gave her the phone number of the direct line to Manitowoc Sheriff's Department in case she found anything. (TT:2/13:215) ("11/5/05 CCSD Interview of Pamela Sturm"), attached and incorporated herein as P-C Exhibit 81). Mr. Hillegas gave other search parties only maps, but he gave Pam a camera in anticipation that she would be the one to find the RAV-4. (TT:2/13:194; Affidavit of Gregg McCrary, P-C Exhibit 42, r 19).
258. After Ms. Halbach's death and despite his prior abusive relationship with her, Mr. Hillegas moved into the house shared by Mr. Bloedorn and Ms. Halbach while the searches were ongoing in order to maintain tighter control over investigators' access to Ms. Halbach's belongings and home. Mr. Hillegas was present almost every time investigators entered Ms. Halbach's home, even months after Ms. Halbach was killed, and frequently directed investigators to items of evidentiary value, such as her dirty clothing including lingerie, the boxes for her phone and camera, and medical records. (11/14/05 CCSD Report By Sgt. Tyson, PC Exhibit 55, STATE 1466; 12/1/05 CCSD Report by Inv. Wiegert, attached and incorporated herein as P-C Group Exhibit 68, STATE, 2759). It is reasonable to conclude that he would also have had access to Ms. Halbach's sub-key and given it to law enforcement to facilitate the sub-key being planted by Sgt. Colborn and Lt. Lenk.
259. In addition to maintaining control over Ms. Halbach's home and possessions, Mr. Hillegas personally searched property surrounding the Avery Salvage Yard and entered the salvage yard on multiple occasions. Even after November 5, 2005, the police allowed Mr. Hillegas through checkpoints to come and search the area. (TT:2/13: 195). On November 7, 2005, Mr. Hillegas accessed the Avery property from 9:03 a.m. to 9:53 a.m. (Crime Scene Sign-in/sign-out Logs, attached and incorporated herein as P-C Group Exhibit 69, STATE 6124-25). Mr. Hillegas made a second entry to the Avery properly on November 7, 2005, exiting the property at 4:28 p.m. (Crime Scene Sign-in/Sign-out Logs, P-C Group Exhibit 69, STATE 6130). Suspiciously, Mr. Hillegas never logged into the property when he entered the second time, meaning there is no way to know when he arrived or how long he had access to the property. (Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 20). This access to the salvage yard would give Mr. Hillegas opportunity to then plant the bones of Mr. Halbach, and her electronic devices, on November 6 and 7, now that the investigation was already focused on Mr. Avery. On at least one occasion, Mr. Hillegas also accessed the Avery and surrounding properties using a fake name. (Ryan "Kilgus" Map, P-C Exhibit 67, STATE 1_3783). This would also explain why, despite previous searches of the Avery and Janda burn barrels, bones were not discovered until November 8, 2005.
260. Mr. Hillegas was not asked to provide an alibi. (TT:2/13:194). When asked by police about his last interactions with Ms. Halbach, Mr. Hillegas testified that on October 30, 2005, he dropped something off for Ms. Halbach at her house. Suspiciously, Mr. Hillegas does not recall what he delivered to Ms. Halbach nor can he remember anything about what time of day it was when he went to Ms. Halbach's residence even though this was supposedly the last time when he saw Ms. Halbach alive. (TT:2/13:180; Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 18).
261.At first, Mr. Hillegas told law enforcement that he was just a friend of Ms. Halbach's. (TT:2/13: 189). Despite authorities eventually learning that Mr. Hillegas was Ms. Halbach's ex-boyfriend, he testified that he was never treated like a suspect in any way. (TT:2/13:195; Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 25).
262. On the afternoon and evening of November 4, 2005, Mr. Hillegas received twenty-two phone calls from a number or numbers with no identifiers. (Ryan Hillegas Phone Records, P-C Exhibit 57, p. 10). It is reasonable to conclude that law enforcement officers were calling Mr. Hillegas in connection with conducting an illegal search of the Avery Salvage Yard using Mr. Hillegas to access the property.
263. In his pre-trial hearing testimony, Mr. Hillegas stated that although he was not sure how many times he talked with Sheriff Pagel on November 4, 2005, they spoke at least once. (MHT:8/9/06:99). Mr. Hillegas did not recall whether he had contact with Inv. Wiegert on November 4, 2005. (MHT:8/9/06:100-101).
264. On November 5, 2005, with information obtained from law enforcement in twenty-two unrecorded calls on November 4, 2005, Mr. Hillegas directed Pam to search Avery's Auto Salvage. While Mr. Hillegas provided only maps and missing person posters to other citizen searchers, Mr. Hillegas provided Pam and her daughter Nikole, the only searchers allowed access to the Avery Salvage Yard, with a digital camera and Calumet County Sheriff Pagel's direct line. Clearly, Mr. Hillegas knew that Pam would discover Ms. Halbach's vehicle. Pam located Ms. Halbach's vehicle on the Avery salvage yard - among 4000 other vehicles on the forty acres of uneven topography - within thirty minutes of her arrival, a true statistical improbability. It is clear that Pam was provided information pertaining to the location of Ms. Halbach's vehicle by Mr. Hillegas. (TT:2/13:168-69; Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 19).
Trial Defense Counsel Failed to Properly Investigate a Variety of Topics: Sgt. Colborn's Dispatch Call; Timelines; Voicemail Deletions; Items from Maribel Park; Suspected Burial Site; Veracity of Police Reports; Witness to the RAV-4 Planting on November 4
Applicable Case Law Re: Trial Defense Counsel's Duty to Investigate
265. In State v. Thiel, 264 Wis. 2d 571 (2003), the Wisconsin Supreme Court granted post-conviction relief after the defense attorney at trial failed to conduct a significant investigation.There, the defendant set forth precisely what would have been revealed had the defense attorney conducted an investigation consistent with the defendant's constitutional right to counsel. As in Thiel, relief is warranted. Thiel also supports Mr. Avery's position that relief is warranted because his trial defense attorneys were ineffective in failing to properly review the discovery prior to Mr. Avery's trial. In Thiel, the defendant's allegation that his trial attorney had not reviewed all of the discovery constituted an additional basis for the Supreme Court to grant relief. The same result is compelled here.
Trial Defense Counsel's Failure to Investigate and Establish the Correct Timing of Sgt. Colborn's Dispatch Call and Discovery of the RAV-4
266. On November 4, 2005, Sgt. Colborn discovered Ms. Halbach's vehicle and called dispatch, on a personal line (TT:3/15:74-78), to confirm Ms. Halbach's license plate number. (TT:2/20: 180-182). Audible in a recording of Sgt. Colborn's call to Manitowoc dispatch regarding the victim's plate number, a third party states, "it's hers." (Enhanced Audio Clip from Track 3 of Trial Exhibit 212, P-C Exhibit 66).
267. Sgt. Colborn's dispatch call was produced to trial defense counsel among other calls recorded by Manitowoc County Sheriffs Department on a CD. The recordings, which are labeled "Track l" through "Track 30," give no outward indication of when they were left. However, based upon a review of the content of the recordings, it is apparent that the recordings are organized chronologically on the CD.
268. Sgt. Colborn's dispatch call was titled "Track 3." The preceding recording, "Track 2," is a call to Manitowoc Dispatch from an unnamed officer regarding George Zipperer. The officer requested a criminal records check of George Zipperer from the dispatcher. It is reasonable to conclude that this call was placed by one of the MCSD officers who were with CCSD Det. Dedering before they proceeded to the Zipperers on November 3, 2005. Therefore, it follows that Sgt. Colborn's call to dispatch occurred after he responded to the Avery property to make contact with Mr. Avery and after he drove back to the MCSD. (TT:2/20:75-78.) Further, based upon the order with which Inv. Dedering organized his report, Sgt. Colborn's call to dispatch occurred after he (Sgt. Colborn) informed the officers assembled at the MCSD about his contact with Mr. Avery.
269. Sgt. Colborn's explanation that he called MCSD dispatch to confirm information obtained from CCSD Inv. Wiegert (TT:2/20: 184-85) is contradicted by the chronological order of the MCSD dispatch calls as produced to trial defense counsel. Sgt. Colborn testified that he placed this call to dispatch after speaking with Inv. Wiegert about Ms. Halbach. (TT:2/20: 184-85). Sgt. Colborn testified that he spoke with Inv. Wiegert while he was driving from the Avery property to MCSD after making contact with Mr. Avery. (TT:2/20:77-78). However, based upon the chronological organization of the MCSD dispatch calls as produced to trial defense counsel, Sgt. Colborn called dispatch after meeting the assembled officers at MCSD, long after leaving the Avery property and speaking with Inv. Wiegert.
270. After departing the MCSD for the Zipperers property, Sgt. Colborn had no viable reason to call MCSD dispatch regarding Ms. Halbach's vehicle. From the time Sgt. Colborn arrived at the MCSD to the time he checked out and returned home, Sgt. Colborn was with at least Det. Remiker and Inv. Dedering, both of whom could have confirmed information regarding Ms. Halbach's vehicle.
271.Further, Sgt. Colborn placed this call from his personal phone, not his squad car's radio. Sgt. Colborn testified that after completing contact with the Zipperers, he checked out at MCSD, which would have included leaving his squad car in the secure MCSD lot, and drove his personal vehicle home. (TT:2/20/80). If Sgt. Colborn was on-duty and in his squad car, it would be reasonable to expect transmissions to and from MCSD dispatch to come over the radio. Because Sgt. Colborn called dispatch from his personal phone, it is reasonable to conclude that he made the call on Friday November 4, 2005, his day off.
272. Sgt. Colborn confirmed the identity of Ms. Halbach's vehicle by calling MCSD dispatch on his cell phone around 7:30 p.m. on November 4. (MCSD Work Records, P-C Exhibit 65). Sgt. Colborn was with Mr. Hillegas who led him to Ms. Halbach's vehicle, which had been previously planted by Mr. Hillegas on the afternoon of November 4, 2005, after a failed attempt to plant it closer to Mr. Avery's residence on November 3, 2005. Realizing such a call would be recorded, Sgt. Colborn removed the license plates from Ms. Halbach's vehicle to conceal that he had actually located the vehicle at the point in time when he made the call about the license plate. ("Timothy Austin Overlay of Location of License Plates ," attached and incorporated herein as P-C Exhibit 80).
273. Current post-conviction counsel, using new telephone records of Ms. Halbach, has reconstructed the correct timeline and route that Ms. Halbach took on October 31, 2005. (Ms. Halbach's New Cell Records, P-C Exhibit 72 11 ): ...
TRIAL DEFENSE COUNSEL FAILURE TO INVESTIGATE
Trial Defense Counsel's Failure to Construct an Accurate Timeline for Mr. Avery's Activities on October 31, 2005
274. Mr. Avery has given an affidavit that the following is the correct timeline for his activities on October 31, 2005:
a. 8:12 a.m.: Mr. Avery called AutoTrader to schedule an appointment for his sister Barb Janda. According to Angela Schuster (" Ms. Schuster "), manager of the AutoTrader office, Mr. Avery was already linked to Barb's husband Tom Janda's AutoTrader account.
b. 11:04 a.m.: Mr. Avery called AutoTrader from his landline (920-755-4860) (Toll Free Records, P-C Exhibit 74), which was linked in the AutoTrader records to Tom Janda's account. (11/6/05 DCI interview of Angela Schuster ("11/6/05 Schuster Interview"), attached and incorporated herein as P-C Exhibit 75). Mr. Avery confirmed that a photographer was coming to the Avery property to photograph the Janda van and that the photographer would be arriving at approximately 2:00 p.m. Mr. Avery confirmed the address of the Barbara Janda appointment as being 12932 Avery Road. (Affidavit of Steven Avery, P-C Exhibit 4). At this point in time, there can be no question that Ms. Pliszka knew that the appointment, scheduled at 8:12 a. m. was made by Mr. Avery and that it was to take place at the Avery property. The State omitted Mr. Avery's call to Auto Trader at 11:04 p.m. from its timeline to the jury. (Trial Exhibit 360).
c. 2:24 p.m.: Mr. Avery called Ms. Halbach to see when she would be arriving. (Affidavit of Steven Avery, P-C Exhibit 4).
d. 2:31 p.m.: Ms. Halbach arrived at the Avery property. Mr. Avery recalls that when he looked out of his trailer window, he saw Ms. Halbach snap one photograph of the Janda van. Mr. Avery put on his shoes and went outside. Ms. Halbach began walking towards Mr. Avery's trailer, but when she saw Mr. Avery, she waved and turned around to go to her car to get his magazine. When Mr. Avery approached the car, Ms. Halbach was in the driver's seat with the door open and the engine running. Mr. Avery approached the driver's door which Ms. Halbach left open and handed Ms. Halbach cash totaling $40.00. Ms. Halbach handed an AutoTrader magazine to Mr. Avery. Mr. Avery remembers there was no mud splattered on Ms. Halbach's car, or visible damage to the driver's side bumper or parking light of her vehicle, and the back seats were in the upright position. Ms. Halbach turned left on Highway 147 after leaving the Avery property. (Affidavit of Steven Avery, P-C Exhibit 4).
e. 2:35 p.m.: Mr. Avery read that AutoTrader advertised for sale front-loaders. He called Ms. Halbach to ask her to come back to his property in order to take a photograph of a loader that he wished to sell. Mr. Avery hung up before Ms. Halbach picked up the phone because he wanted to go see Bobby. (Affidavit of Steven Avery, P-C Exhibit 4).
f. 4:35 p.m.: Mr. Avery called Ms. Halbach again at 4:35 p.m. that evening to set up an appointment for her to photograph the front-loader to advertise it in Auto Trader. (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Avery's call went to the automated voicemail.
g. 5:36 p.m.: Mr. Avery's girlfriend Jodi called Mr. Avery from jail. The couple spoke for fifteen minutes, the maximum time allowed from jail phones. These calls were recorded by the jail. (Jail Phone Log, attached and incorporated herein as P- C Exhibit 76, STATE 1 _9308).
h. Around 7:00 p.m.: Mr. Avery had a bonfire. The fire burned for about two or two and a half hours. His nephew Brendan came over as well. They burned brush. (Affidavit of Steven Avery, P-C Exhibit 4).
i. 8:57 p.m.: Jodi called Mr. Avery from the jail phone and the couple again spoke for the maximum time allowed from jail phones. This call was recorded by the jail. Brendan went home before Jodi called and by the time Brendan left, the fire had burned down to ash. (Jail Phone Log, P-C Exhibit 76, STATE 1_9308).
Trial Defense Counsel Failed to Detect the Voicemail Deletions From Ms. Halbach's Phone
275. Ms. Halbach owned a Motorola Razr V3 in October 2005 (TT:2/13:256; Trial Exhibit 380). Her Cingular wireless plan included Basic Voicemail (Trial Exhibit 380), which could retain a maximum of twenty minutes of voice messages. (Cingular Basic Voicemail Features, P-C Exhibit 61).
276. On October 31, 2005, six minutes and forty-one seconds worth of voice messages were recorded to Ms. Halbach's voicemail. (New Cell Records, P-C Exhibit 72, lines 1337, 1338, 1339, 1343, 1349/50, 1356/57, 1353/54). As explained above, these messages would not have filled the voicemail box to capacity on October 31, 2005, because the voicemail box could hold twenty minutes of recorded messages. Of the seven messages recorded on October 31, 2005, only two were not deleted. Before October 31, 2005, 15 minutes and 21 seconds of Ms. Halbach's voicemail was occupied by voice messages.
277. At 8:17 a.m. on October 31, AutoTrader called Ms. Halbach and recorded a one minute and six second voice message to her voicemail box. (New Cell Records, P-C Exhibit 72, line 1337). At 9:46 a.m., AutoTrader called Ms. Halbach again, this time recording a 33 second voice message. (New Cell Records, P-C Exhibit 72, line 1338). At 10:44 a.m., Denise Coakley called and recorded a 37 second voice message to Ms. Halbach's voicemail. (New Cell Records, P-C Exhibit 72, line 1339) Daniel Morrow, an Auto Trader client, recorded a 43 second voice message at 11:25 a.m. (New Cell Records, P-C Exhibit 72, line 1343). At 12:29 p.m., Don Breckheimer, a friend of Ms. Halbach, called and left a forty second long voicemail. (New Cell Records, P-C Exhibit 72, line 1346). In total, four minutes and 39 seconds worth of voice messages were recorded to Ms. Halbach's voicemail on October 31, 2005, before Ms. Halbach began her AutoTrader appointments.
Trial Defense Counsel's Failure to Investigate and Request DNA Testing of Items Recovered from Maribel Caves Park
278. A civilian submitted items of potential evidentiary value that were allegedly found at Maribel Caves Park on November 6, 2005, to Sgt. Colborn. (CCSD Evidence/Property Custody Document, attached and incorporated herein as P-C Exhibit 77, STATE 1_6851). Investigators inventoried items of potential evidentiary value found at Maribel Caves Park on November 6, 2005, including torn women's blue jeans and a box containing personal lubricant. (CCSD Evidence/Property Custody Document, P-C Exhibit 77, STATE 1_6851). Neither of these items were subjected to forensic analysis by the State or trial defense counsel.
Trial Defense Counsel Failed to Investigate the Veracity of the Police Reports Regarding Joshua Radandt
279. When Mr. Radandt told investigators that he saw a fire on the Avery properly on October 31, 2005, he described the fire as appearing to be contained to a fifty-five gallon drum. (11/5/05 Handwritten Statement of Joshua Radandt, attached and incorporated herein as P-C Exhibit 84, STATE 7019). When investigators re-interviewed Mr. Radandt on November 10, 2005, they pressured him to describe the fire as large, behind Mr. Avery's garage, and in an open burn pit. Mr. Radandt never told investigators that the fire was behind Mr. Avery's garage. Mr. Radandt sets forth in his affidavit that he remembers seeing the fire, contained to a burn barrel, and between several trailers on the Avery property. (Affidavit of Joshua Radandt, attached and incorporated herein as P-C Exhibit 85).
280. Trial defense counsel failed to investigate Mr. Radandt's observation of a fire on the Avery property. Had trial defense counsel investigated Mr. Radandt, they would have learned that investigators had pressured Mr. Radandt to exaggerate the size of the fire and he refused to do so. If trial defense counsel had called Mr. Radandt as a witness his testimony would have demonstrated to the jury that the investigators knew Ms. Halbach's vehicle had been driven through his gravel pit and planted on Mr. Avery's property. The jury would also have learned of the efforts of the investigators to pressure Mr. Radandt to exaggerate the size of the fire.
Trial Defense Counsel's Failure to Investigate the Veracity of the Police Reports Re: Paul Metz Interview
281. An example of the reckless investigation by law enforcement in the police report memorializing the interview of Paul Metz ("Mr. Metz"), a cattle farmer who lived approximately four and one half miles north of the Avery property," heard a big 'whoosh'" that reminded him of starting a fire with gasoline on November 1, 2005. Reportedly, Mr. Metz told investigators that he then smelled a vile odor that he could not identify. The reports state that the smell was coming from the direction of the Avery property. (11/18/05 CCSD Interview of Paul Metz, attached and incorporated herein as P- C Exhibit 86, STATE 2768).
282. Mr. Metz, in his affidavit, describes a different scenario. The date was October 31, 2005, not November 1, 2005. As dusk approached, Mr. Metz heard a loud buzzing sound that reminded him of electrical wires surging. Mr. Metz then smelled an odor that reminded him of insulation burning. At no time did Mr. Metz hear a sound that reminded him of gasoline igniting or smell and indescribable odor. Mr. Metz is familiar with the smell of a burned body because he was a volunteer firefighter. At no time on October 31, 2005, or November 1, 2005, did Mr. Metz detect an odor of a burning body. Mr. Metz never told investigators that he heard a "whoosh" and does not know how that statement came to be attributed to him. (Affidavit of Paul Metz, attached and incorporated herein as P-C Exhibit 99).
283. Trial defense counsel failed to conduct any investigation of Mr. Metz. Had trial defense counsel investigated the story investigators attributed to Mr. Metz, they would have learned that investigators misrepresented Mr. Metz's detection of a foul odor on October 31, 2005.
Trial Defense Counsel Failed to Investigate the Evidence of a Possible Burial Site
284. Scent-tracking dogs, as well as human remains detection dogs, identified a burial site south of the Kuss Road cul-de-sac, approximately 500 yards west of Mr. Avery's residence. Human remains detection dogs, trained to give alerts on decaying human tissue and fluids, indicated the presence of human remains at the burial site. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 65).
285. Between November 5 and November 8, 2005, there were numerous opportunities for cadaver and scent dogs to discover the bones in the fire pit of Mr. Avery if they were indeed present there from the time Mr. Avery left the property early in the morning on November 5 to go to the family cabin in Crivitz. (Affidavit of Steven Avery, P-C Exhibit 4, iJ 30).
a. They searched around the general vicinity of Mr. Avery's residence but did not identify human remains or Ms. Halbach's scent. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 63-67).
b. Jill Cramer ("Ms. Cramer") testified that Brutus was a "high drive" cadaver dog, meaning that he is capable of finding very small scent sources from large distances and will persist in working despite inclement weather. (TT:2/16:7). Given that Brutus was drawn to the RAV-4 from the area of the cars along the elevated ridgeway south of the car crusher, which was approximately 205 feet from the RAV-4, it is reasonable to conclude that Brutus was capable of detecting a scent source within a range of at least 200 feet. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 63).
c. Ms. Cramer also testified that Brutus has an extremely low false negative rate and that he "very rarely has missed a source" during his years as a cadaver dog. (TT:2/16:37).
d. On November 6, sometime between 7:30 a.m. and 12:00 p.m., another cadaver dog, Trace, was assigned specifically to check the exterior of Mr. Avery's residence, including the driveway and red Plymouth van that Ms. Halbach had photographed. Trace identified no human remains on November 7. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 64).
Therefore, if Ms. Halbach's remains were concentrated in the burn pit on November 5 when Brutus was searching around Mr. Avery's trailer, it is highly unlikely that he would not alert at that particular site.
286. The cadaver dog alerts on the attached map are as follows:
1) on Ms. Halbach's RAV-4 where it was discovered;
2) on several spent shell casings along the conveyor road at the southwestern edge of the Avery property ("11/8/05 CCSD Report STATE1376-77"), attached and incorporated herein as P-C Exhibit 87);
3) north of Alert 2, along the conveyor road at the southwestern edge of the Avery property;
10) in the same area as Alerts 2 and 3;
12) the potential burial site south of the Kuss Road cul-de-sac;
15) several burn piles in the area of large concrete slabs in the Manitowoc County gravel pit.
Additionally, the live scent dogs alerted in the area of brush and trees between Kuss Road and Mr. Avery's trailer and in the area of the berm on the west border of the Avery property. The State conspicuously avoided mentioning any of these alerts because they were not on the Avery property. Trial defense counsel failed to mention these alerts. (Map of Cadaver and Scent Dog Alerts, attached and incorporated herein as P-C Exhibit 90).
SCENT AND CADAVER DOGS
287. The WSCL field response team was dispatched to the burial site to take photographs and conduct an examination. (11/23/05 WSCL Field Response, attached and incorporated herein as P-C Exhibit 88, STATE 1616). However, it was Lt. Lenk and Sgt. Colborn, along with Sgt, Tyson, who performed the excavation of the burial site and reported that it was of no evidentiary value. (11/7/05 CCSD Report, attached and incorporated herein as P-C Exhibit 89, STATE 1338).
288. Based upon the scent dogs' interest in the suspected burial site, it is very probable that Ms. Halbach's body was buried at this location for a period of time after her death and before her body was burned.
Trial Defense Counsel's Failure to Locate and Interview Witness Who Observed the RAV-4 Being Driven onto Avery Property by Way of the Radandt Pit Prior to November 5, 2005
289. Wilmer Siebert, ("Mr. Siebert") observed a vehicle similar in color, size, and style to Ms. Halbach's RAV-4 enter the Radandt Pit using an access road immediately south of his house. Mr. Siebert's house is immediately north of the east entrance to the Radandt Pit off of Jambo Creek Road. After observing the vehicle enter the Radandt Pit, Mr. Siebert saw pictures of Ms. Halbach's vehicle on the news. Mr. Siebert remembers the vehicle he saw driving into the Radant Pit had the same spare wheel and wheel cover on the rear cargo door as Ms. Halbach's RAV-4. Mr. Siebert observed a white Jeep accompanying the other vehicle into the Radandt Pit. Mr. Siebert remembers the paint was chipping off of the hood of the white Jeep. Mr. Siebert remembers the two vehicles were traveling at a high rate of speed when they drove down Jambo Creek Road and turned east onto the gravel road that leads into the gravel pits. Shortly after the two vehicles entered the Radandt Pit, Mr. Siebert observed the Jeep, unaccompanied by the other vehicle, exit using the same gravel road immediately south of Mr. Siebert's house. (Affidavit of Wilmer Siebert, attached and incorporated herein as P-C Exhibit 98). Mr. Siebert's daughter, Vicki Siebert ("Ms. Siebert"), called Manitowoc County dispatch to report the activity observed by Mr. Siebert. (Trial exhibit 218, Track 27). Suspiciously, the recording of this call was not turned over to trial defense counsel.
290. In addition to Mr. Siebert's affidavit witnessing the RAV-4 being brought onto the Avery property through the Radandt Pit, the scent and cadaver dogs corroborate Mr. Siebert's observations that the RAV-4 was brought into the Radandt Pit from Jambo Creek Rd. and driven to various places in the Radandt Pit. (Scent and cadaver dog reports and maps, attached and incorporated herein as P-C Group Exhibit 46)
291. The State misrepresented to the jury that it was impossible to access the Avery property from the the south (TT:3/14:53-54), where the Radandt Pit borders the Avery yard. Although trial defense counsel claimed that the Avery property could be accessed through the Radandt property, they failed to rely on the dog tracks to corroborate their claim that this is exactly how the vehicle was moved onto the Avery property. (Affidavit of Joshua Radandt, P-C Exhibit 85). Ms. Halbach's vehicle was moved from the Radandt Pit to the Avery property using either the Jambo Creek entrance and road east of the conveyor road, or the conveyor road that led onto the Avery property from the Radandt property. (TT:2/15:75; 11/7/05 CCSD Report, attached and incorporated herein as P-C Exhibit 97, STATE 1342).
BRADY VIOLATIONS
Investigators Withheld the Zipperer Voicemail CD which contained favorable and exculpatory evidence for Mr. Avery
296. When Ms. Halbach first arrived in the vicinity of the Zipperers' residence she made a phone call which was answered by the Zipperers' answering machine. Allegedly, Ms. Halbach left a voicemail that she could not locate the Zipperer residence. On November 3, when the Zipperers were interviewed at 9:30 p.m., they told the investigators that Ms. Halbach had left a voice message on their answering machine. The voicemail was listened to by Det. Remiker of the MCSD and it was copied by MCSD Detective Dennis Jacobs ("Det. Jacobs") onto a CD. (11/6/05 CCSD Report, attached and incorporated herein as P- C Exhibit 101, STATE 1311; 11/3/05 CCSD Report, P-C Exhibit 73, STATE 2497).
297. The CD of Ms. Halbach's voicemail recording on the Zipperer answering machine was never turned over to trial defense counsel and has allegedly disappeared. Current post-conviction counsel, through their investigators, sent a FOIA request for the CD and neither Manitowoc nor Calumet Counties claimed to have possession of the voicemail CD. (P-C Group Exhibit 70). Furthermore, although trial defense counsel's discovery requests would have encompassed the CD, it was never turned over by Mr. Kratz in discovery. Mr. Fallon confirmed in a letter to current post-conviction counsel on April 20, 2017, that neither Calumet nor the Manitowoc Sheriffs Departments have been able to locate the CD of Ms. Halbach's voicemail left on the Zipperer answering machine. (4/20/2017 Letter fron~ AAG Thomas Fallon, P-C Exhibit 25).
298. Suspiciously, Mr. Kratz never played the recording of the 2:12 p.m. voicemail for the jury. It is reasonable to conclude that Mr. Kratz concealed the 2:12 p.m. voicemail because it confirmed that the Zipperers' residence was Ms. Halbach's last stop. Corroboration of this assertion is found in a recorded conversation between Inv. Wiegert and Det. Remiker on November 5, 2005, about the sequence of Ms. Halbach's appointments on October 31, 2005. In that conversation, which occurred after interviews with Mr. Schmitz, Mr. Avery, and Mr. Zipperer, they concluded that Ms. Halbach's first appointment was with Mr. Schmitz, her second appointment was with the Averys, and her third appointment was with the Zipperers. (11/5/05 Wiegert/Remiker recording, P-C Exhibit 71). Obviously, Inv. Wiegert and Det. Remiker based their conclusion on the Zipperer voicemail left by Ms. Halbach, which was listened to by investigators on November 3, 2005, at the Zipperer residence and recorded to a CD on November 6, 2005 (11/3/05 CCSD Report, P-C Exhibit 73, STATE 2497), and having interviewed both Mr. Avery and Mr. Zipperer. Clearly, the destruction and/or concealment of Ms. Halbach's voicemail to the Zipperers' leads to the reasonable conclusion that her voicemail refuted Mr. Kratz's timeline and so it was concealed from trial defense counsel.
299. Investigators concealed the voicemail left by Ms. Halbach on the Zipperers' answering machine because it refuted their theory that Ms. Halbach's final appointment was Mr. Avery.
Investigators Concealed the Amount of Gas Remaining in the RAV-4's Fuel Tank from Trial Defense Counsel
300. Although the odometer reading from Ms. Halbach's vehicle was noted at the WSCL, no reference was made by law enforcement or the WSCL to the amount of gas remaining in the RAV-4's fuel tank, which would have provided vital information about how far the car had traveled since its tank was filled to capacity on October 29, 2005. When Ms. Halbach used her credit card to purchase $38.06 worth of, presumably, fuel from an Exxon station in De Pere, WI. (11/4/05 CCSD Report, attached and incorporated herein as P-C Exhibit 103, STATE 2506). The average price of a gallon of fuel in the United States was $2.48 on October 31, 2005. (Environmental Impact Assessment Data, attached and incorporated herein as P-C Exhibit 91). According to manufacturer specifications, the fuel capacity of a 1999 Toyota RAV-4 is 15.3 gallons. (RAV-4 Manual, P-C Exhibit 1). Assuming Ms. Halbach paid $2.48 per gallon of fuel on October 29, 2005, she would have spent $37.94 to fill her tank to capacity. It is reasonable to conclude that Ms. Halbach completely filled her gas tank on October 29, 2005. Mr. Fallon has confirmed on April 20, 2017, that the State failed to determine and document the gas level remaining in Ms. Halbach's vehicle when it was discovered on the Avery's property. (4/20/17 Letter from AAG Thomas Fallon, P-C Exhibit 25). Clearly, the State did not want the mileage revealed because it would have completely refuted its theory that Ms. Halbach was killed on the Avery property and demonstrated that Ms. Halbach and her car were driven many more miles after she left the Avery property.
The Flyover Video was Edited to Conceal that the RAV-4 Was Not Present on the Avery Property Before 6 p.m. on November 4
301. Wendy Baldwin ("Ms. Baldwin") and Sheriff Pagel were in the air for around four hours (11/4/05 CCSD Report, P-C Exhibit 63, STATE 1244), yet the State produced only three minutes of footage. Mr. Kratz saw the unedited flyover video and knew that the RAV-4 was not there at that time, but knew that the State's case might fail if the RAV was not present before 6 p.m. on November 4. The video was intentionally edited to conceal the fact that the RAV-4 was not present at the time of the flyover on November 4. (11/4/05 CCSD Report, P-C Exhibit 63, STATE_1244).
Investigators Concealed Their Knowledge that Ms. Halbach's RAV-4 was Driven Onto Mr. Radandt's Property
302. Mr. Radandt has provided an affidavit to current post-conviction counsel that State's the following: "At that time, I was told by the Department of Justice agents that they believed Teresa Halbach's vehicle was driven to the Kuss Road cul-de-sac by driving west through an empty field, then south down the gravel road past my hunting camp until reaching an intersection with a gravel road that ran northeast into the Avery property. They told that me that they believed Teresa Halbach's vehicle turned northeast onto that gravel road and entered the Avery property at its southwest corner. It is my understanding that this theory was based on the work of scent tracking dogs." (Affidavit of Joshua Radandt, P-C Exhibit 85).
DOJ Investigators never authored a report documenting their conversation with Mr. Radandt about the RAV-4 being drive from his property and planted on Mr. Avery's property. Mr. Kratz did not call Mr. Radandt as a witness at Mr. Avery's trial. The failure to produce this evidence to trial defense counsel was a clear Brady violation because this information could not only have been used to impeach the State's witnesses, it also would have provided exculpatory evidence for Mr. Avery that the RAV-4 was planted on his property.
NEW EVIDENCE
New Scientific Evidence Demonstrates that the Damaged Bullet (FL) in Mr. Avery's Garage was Not Shot Through Ms. Halbach's Head Causing Her Death as the State Contended
303. Mr. Kratz claimed that Ms. Halbach was killed by two gunshot wounds, one to the left side of her head and one to the back of her head, while she was lying down on the garage floor. (TT:3/15:98). Dr. Eisenberg described two entrance wounds to Ms. Halbach's head but no exit wounds. Two damaged bullets were eventually found on Mr. Avery's garage floor. (TT:3/15:98). Mr. Kratz relies upon Dr. Eisenberg who testified that the defect in the parietal bone, above the left ear, shows the characteristic sign of an entrance bullet wound and a second defect in the occipital region shows Ms. Halbach was also shot in the back of the head with a .22 caliber gun. (TT:3/14:128). Additionally, Mr. Kratz relied upon Mr. Olson, the State's trace metal expert, who testified that x-rays of the skull defects in the parietal region showed particles oflead. (TT:3/14: 128).
304. Current post-conviction counsel has obtained the opinions of Mr. Haag, a renowned ballistics expert, and Dr. Palenik, the trace expert referred to above. Dr. Palenik, utilizing a 2016 scanning electron microscope, has determined that Item FL, the damaged bullet that the State claimed was shot through Ms. Halbach's skull and caused her death, was not shot through bone. Mr. Haag has concluded, to a reasonable degree of scientific certainty in the field of ballistics and illustrated by testing he has carried out, that the damaged bullet (Item FL) ... recovered from Mr. Avery's garage was never shot through Ms. Halbach's skull. The damaged bullet (Item FL), which was identified as a .22 caliber long rifle bullet, was comprised of such soft metal that there would be detectable bone fragments embedded in the damaged bullet if it had been fired through Ms. Halbach's skull. Because no bone fragments were identified in the damaged bullet (Item FL) over the course of its examination - including DNA and firearms/tool marks analysis - at the WSCL, it is Mr. I Haag's opinion, to a reasonable degree of scientific certainty if the field of ballistics, that the damaged bullet (Item FL) was never fired through Ms. Halbach's skull. (Affidavit of Luke Haag, P-C Group Exhibit 92, 17)....
307. Mr. Haag conducted tests to illustrate that bone fragments would become embedded in .22 caliber long rifle bullets when fired through bone. Mr. Haag selected copper plated .22 caliber long rifle CCI Minimag® bullets for his experiment because fired copper plated CCI Minimag® casings were recovered from Mr. Avery's garage (TT:3/1: 106-107) and unfired copper plated CCI Minimag ® bullets were found in Mr. Avery's bedroom. (Trial Exhibit 246; TT:2/22:38-39) (Affidavit of Luke Haag, P-C Group Exhibit 92, 18).
308. Mr. Haag fired two copper plated CCI Minimag® .22 caliber long rifle bullets through approximately two millimeter thick flat bone and into a soft tissue simulant. Mr. Haag fired two other copper plated CCI Minimag® .22 caliber long rifle bullets through one sheet of approximately two millimeter thick flat bone, through five inches of soft tissue simulant, through a second section of approximately two millimeter thick flat bone, and into soft tissue simulant. Bone particles, embedded in the soft lead, were visible in a microscopic examination performed by Dr. Palenik for both the bullets fired through one thickness of bone and two thicknesses of bone (See 11 312-326). Dr. Palenik's examination supports Mr. Haag's op1mon that, to a reasonable degree of scientific certainty in the field of ballistics, the damaged bullet (Item FL) was not fired through Ms. Halbach's skull because there were no bone particles embedded in it when it was examined by WSCL analysts. (Affidavit of Luke Haag, P-C Group Exhibit 92).
309. Mr. Newhouse, a WSCL firearms examiner, analyzed the damaged bullet (Item FL), using a microscope. According to Mr. Newhouse's bullet worksheet (attached and incorporated herein as P-C Exhibit 93), Mr. Newhouse identified no trace evidence on the damaged bullet. If there were bone fragments embedded in the damaged bullet (Item FL), Mr. Haag would expect a reasonably competent firearms examiner to have identified them during their microscopical examination. Mr. Haag has concluded, upon review of Mr. Newhouse's trial testimony, that Mr. Newhouse is a reasonably competent firearms examiner who would have identified bone fragments embedded in the damaged bullet had they been present. Because Mr. Newhouse did not identify any embedded bone fragments during his microscopical examination of the damaged bullet (Item FL) it is the opinion of Mr. Haag, to a reasonable degree of scientific certainty in the field of ballistics, that the damaged bullet (Item FL) was never fired through Ms. Halbach's skull. (Affidavit of Luke Haag, P-C Group Exhibit 92).
310. Ms. Culhane testified that she washed the damaged bullet in a test tube filled with reagent. (TT:2/23:163-64). Before Mr. Newhouse analyzed the damaged bullet, Ms. Culhane washed the bullet to extract DNA from it. Ms. Culhane's wash would not have dislodged or otherwise removed the embedded particles from the damaged bullet. The particles, therefore, would have remained in place and would have been visible to Mr. Newhouse during his examination. (Affidavit of Dr. Palenik, P-C Group Exhibit 48l0(b)).
Microtrace Examination of Damaged Bullet (Item FL) with 2016 Stereomicroscopy Digital Video Microscropy and Scanning Electron Microscopy and Energy Dispersive X-Ray Spectroscopy (SEMIEDS) Demonstrates that the Damaged Bullet (Item FL) was Never Shot Through Ms. Halbach's Skull
311. The purpose of Dr. Palenik's trace examination with a 2016 Stereomicroscopy Digital Video Microscropy and Scanning Electron Microscopy and Energy Dispersive X-Ray Spectroscopy (SEM/EDS) was to determine if bone could be detected on the surface of the damaged bullet (Item FL). ...
Dr. Palenik's Examination of the Damaged Bullet (Item FL)
318. On 23 May 2017, a damaged bullet (Item FL) was hand carried to Microtrace by Special Agent Jeff Wisch ("SA Wisch") of the Wisconsin Department of Justice. The bullet remained in the custody of SA Wisch during the analysis performed at Microtrace.
319. Dr. Palenik opened, photo-documented, and examined the damaged bullet (Item FL) using a combination of 2016 stereomicroscopy and digital video microscopy.
320. Dr. Palenik's examination revealed that the bullet surface was covered in debris exhibiting the following characteristics:
a. Wood fragments appear to be directly adhering to or embedded in the lead of the bullet. This later observation suggests that at least some of the wood was deposited when the energized bullet encountered a wooden object. Some of the fragments observed are individual particles of wood. One particle appears to be an agglomeration of woody fragments, possibly originating from a manufactured wood product such as chip or particle board. Isolation and analysis of these 142 particles would be required to identify the species or type of wood product.
b. A rounded red droplet (-. 073 mm 2) adjacent to a smaller red droplet (-0.005 mm 2) is present on one side of the bullet. The identity of this dried liquid is presently unknown. Based upon its color and the fact that the bullet was previously extracted for DNA, it seems unlikely that this is blood. The color, texture, and shape of the deposit suggests that the material may be paint. Regardless of its identity, the texture of the bullet in the area where the droplets are observed strongly suggests that the droplet was deposited after the bullet was fired and came to rest. This material could be identified if subjected to further analysis.
c. No particles consistent with bone were detected by an examination using 2016 stereomicroscopy or digital video microscopy.
d. A waxy substance covers a significant portion (-40%) of the leading surface of the bullet. According to Mr. Haag, this wax is used by firearms analysts to orient and hold bullets during their analysis.
e. Numerous fibers are observed adhering to the waxy substance. Most of these are colorless; however, red and black fiber fragments were also noted. Other white fibers not associated with the waxy surface were observed in association with the bullet. These fibers could be more specifically identified after isolation and further analysis.
321. Dr. Palenik notes that the criteria for classification of each material described above is based upon in situ observations and are not necessarily inclusive of all particle types that may be present.
322. The sample was examined without any further preparation in a JEOL 7100FT field emission scanning electron microscope with a 50 mm 2 Oxford SDD EDS detector. The base of the bullet was fixed upon a piece of conductive, double sided, carbon tape. An image of the bullet was obtained at 20 kV. The sample was examined by a combination of backscatter and secondary electron imaging at magnifications ranging from -50x to 2000x. Elemental maps were collected from various areas on the leading surface of the bullet that showed surfaces with exposed lead (i.e., away from the waxy deposit). The elemental maps were examined for areas with elevated levels of calcium and phosphorous. Each area analyzed was rotated toward the EDS detector to increase the number of x-rays detected. No areas with elevated levels of calcium and phosphorous were detected, indicating the absence of detectable bone. A few silicon-rich areas were noted, which may suggest the presence of silicate compounds (e.g., minerals).
Dr. Palenik's Opinion s Re: The Damaged Bullet (Item FL)
323. Dr. Palenik opines that "there is no evidence to indicate that the bullet passed through bone. In fact, the particulate evidence that is present strongly suggests an alternate hypothesis, which is that the trajectory of the fired bullet took it into a wooden object, possibly a manufactured wood product. Furthermore, the presence of red droplets deposited on the bullet suggests that the bullet had picked up additional contamination from its environment at some point after coming to rest (i e., droplets of potential red paint or a red liquid)." (Affidavit of Dr. Palenik, P-C Group Exhibit 48, 19).
324. Based upon these findings, it is Dr. Palenik's understanding that an investigator was sent by Kathleen Zellner & Associates, P. C., to the Avery garage to review the area for possible sources of the particulate types described above. It is Dr. Palenik's understanding that the following possible sources were identified:
a. Particle board in the garage with apparent bullet holes.
b. Red painted surfaces including a ladder in the garage and a red painted ceiling.
325. Each of the above listed materials observed on the bullet could be identified specifically. The potential sources for the particulate matter that were recently collected from the Avery garage could be directly compared to materials on the bullet. (Affidavit of Dr. Palenik, P-C Group Exhibit 48, ~ 20).
326. On June 2, 2017, Mr. James Kirby and Kurt Kingler, current post-conviction counsel's investigator and law clerk, collected wood and paint samples from the Avery garage. Mr. Kingler test fired .22 long rifles through the exterior garage wall and wood samples into the interior of the garage. Those samples have been submitted to Dr. Palenik for further tes ting to determine if the samples obtained on June 2, 2017, are, in fact, the source of the red particles and wood product observed by Dr. Palenik on the damaged bullet (Item FL). Dr. Palenik will supplement his affidavit after he completes testing of these items.
327. Mr. Johnson, the owner and previous resident of Mr. Avery's trailer, often fired his .22 caliber rifle into gopher holes near the doors of Mr. Avery's garage. Mr. Johnson would expect spent casings to be ejected into the garage and not picked up. Further, Mr. Johnson would expect damaged bullets or bullet fragments to end up in the garage. (Affidavit of Rollie Johnson, P-C Exhibit 7; Affidavit of Steven Avery, P-C Exhibit 4)
BRAIN FINGERPRINTING
Dr. Farwell is highly qualified to testify to the results of the brain fingerprinting analysis he conducted on Mr. Avery. Dr. Farwell received his B.A. from Harvard University and a Ph.D. in biological psychology from the University of Illinois. Dr. Farwell invented and developed brain fingerprinting through the course of research he conducted for the FBI, CIA, and United States Navy. His research has been published in leading peer-reviewed scientific journals in the field of forensic science, neuroscience, and psychophysiology. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, 12). 331.Moreover, Dr. Farwell's brain fingerprinting analysis meets the standards governing the admission of expert testimony set forth in Wisconsin Statute § 907.02( 1): ...
Briefly stated, brain fingerprinting detects information stored in the brain by measuring brainwave activity in response to certain stimuli, i.e., the P300, and/or the more recently developed P300-MERMER, effect. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, 110). 334. The methodology employed by Dr. Farwell in conducting his brain fingerprinting analysis of Mr. Avery is set forth in Appendix 1 to his report. ...
Brain Fingerprinting detects information stored in the brain. It does not claim to detect lies, truth-telling, guilt, innocence, or any past or present action or non-action. Brain Fingerprinting is applied in forensic settings to determine whether or not a suspect knows 148 specific salient information about a crime that is known only to the perpetrator and investigators, and would not be known to an innocent person. The purpose of Brain Fingerprinting is to determine scientifically whether the record stored in the suspect's brain matches the record of what actually took place when the crime was committed. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 5).
340. Brain Fingerprinting works by assessing - in real time - a subject's psychophysiological response to stimuli in the form of words or pictures presented on a computer monitor. As a forensic method, the test assess the subject's knowledge of a crime scene or of the instrumentalities or fruits of a crime, and it can also be used to assess knowledge of the particulars of an alibi scene or sequence of events. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 9).
341. Brain Fingerprinting uses electroencephalography (EEG) to measure a specific event- related potential known as the P300 - an electrical event in the brain beginning 300 milliseconds after exposure to a stimulus. The P300 is characteristic of the information processing that accompanies recognition of stimuli in comparison to a remembered context. Dr. Farwell has extended the analysis of this event-related potential farther in time to take account of additional information. This extension of the P300 is known as a "memory and encoding related multifaceted electroencephalographic response" (MERMER) or "P300-MERMER." (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 10).
342. If the subject is a witness to or perpetrator of the crime in question, his or her response to stimuli that embody accurate details of the crime will evoke a P300 response. The human brain emits a characteristic P300 (and MERMER) electrical response whenever the subject 149 responds to a stimulus by updating his or her memory context to take account of the stimulus. The P300 (and MERMER) response is not evoked when the stimulus is irrelevant to the subject's memory context.
343. These stimuli are crime- or situation-related words, phrases, or pictures are referred to as "probes." For the purposes of the Brain Fingerprinting test, probes are selected such that they contain information that is known only to the perpetrator and investigators, and has not been disclosed to the public. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 12-13).
344. In order for information detected in a suspect's brain to be useful to the trier of fact in determining whether or not the suspect was present when the crime was committed, a Brain Fingerprinting test must detect the presence or absence of information that is known only to the perpetrator and investigators. This must be information that is not known to the general public, has never been disclosed to the suspect after the crime, and thus would not be known to an innocent suspect. For example, information that the suspect knows from reading a newspaper, from interrogations, or from hearing testimony at trial is not applicable in a Brain Fingerprinting test. A finding that an individual knew such information would prove nothing about his participation in the crime. Knowledge of such information could be explained by his having read the newspaper, participated in the trial, etc. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 59).
345. Other items known to the person regardless of whether he or she was present at the crime ("targets") also evoke the P300 (and MERMER) response and permit Dr. Farwell to establish a baseline from which to compare the person's responses to the probes. Other stimuli that have no relevance either to the crime or to anything in the subject's memory ("irrelevants") establish a baseline for a flat response (no P300 or MERMER evoked), i. e., a response ( or lack of response) to unknown and irrelevant information. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 12).
346. The signals obtained from the subject's response to multiple presentations of probes, targets, and irrelevant stimuli are averaged using analytical tools that are standard in the field of EEG psychophysiology. In this way, an overall result is obtained that demonstrates whether the probes have evoked a P300 recognition response or a flat non- recognition response (i.e., the lack of a recognition response). (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 12). ...
However, previously unknown facts - that Ms. Halbach was behind her car and the cargo door was open when she was attacked - about the events surrounding the killer's attack on Teresa were not revealed to Mr. Avery at trial or in the preceding investigation and had not been revealed to Mr. Avery prior to Dr. Farwell's Brain Fingerprinting test on Mr. Avery. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 50).
Dr. Farwell's Brain Fingerprinting Test Results for Mr. Avery
353. On May 2, 2016, Dr. Farwell performed a Brain Fingerprinting test on Mr. Avery. The specific purpose of this test was to determine definitively and scientifically whether or not two specific features of the attack on Ms. Halbach were stored in Mr. Avery's brain:
a. Where the victim was in relation to her vehicle when the perpetrator attacked and wounded her behind her car.
b. The configuration of the victim's vehicle when the perpetrator attacked the victim: cargo door open. ...
(Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 57).
354. In Dr. Farwell's Brain Fingerprinting test, the subject's brain responses to targets provide a template for that subject's response to known, relevant information. The responses to targets are expected to elicit a large P300 brain response because the subject's brain is expected to have the target information stored. Dr. Farwell used the following target information to provide a template of Mr. Avery's response to known, relevant information: a. What kind of car did Ms. Halbach drive: Toyota RAV-4. Mr. Avery selected widely known answer from three options, the two irrelevants being "Saab 9 5" and "Volvo S40." b. What killed Ms. Halbach: .22 bullet. Mr. Avery selected the widely known answer from three options, the two irrelevants being "deep stream" and "golf club." (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 59, 62). ...
These results mean that scientific testing has determined with a 99 .9% statistical confidence that Mr. Avery does not know certain specific details about the attack on Ms. Halbach. This salient, crime-relevant information, which was experienced by the perpetrator when he committed the crime, is not stored in Mr. Avery's brain. Specifically, this information comprises the details that were revealed by the newly discovered blood- spatter evidence and embodied in the probe stimuli. This provides scientific evidence that Mr. Avery does not know specific critical, salient crime-relevant information regarding what actually took place at the time that the perpetrator attacked Ms. Halbach. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 69).
Microscope Examination of Hood Latch Swab
359. Dr. Palenik has used a microscope developed in 2016 to analyze the hood latch swab. Dr. Palenik has offered the opinion that the swab was not used to swab the hood latch. (Affidavit of Dr. Palenik, P-C Group Exhibit 24, ~ 10).
Source Testing of the Hood Latch Swab
360. Dr. Reich has applied newly developed DNA source testing methods to the hood latch swab, ruling out blood, saliva, semen, and urine as the source of Mr. Avery's DNA allegedly detected on the hood latch swab. Dr. Reich, through a series of experiments, has demonstrated that the DNA allegedly discovered on the hood latch was not the result of Mr. Avery touching the hood latch as he opened the hood. (Affidavit of Dr. Reich, P-C Group Exhibit 15, i 25-30).
Source Testing of Sub-key Demonstrated that the DNA of Mr. Avery on the Sub-key was Planted
361.Dr. Reich has determined that the source of the DNA on the key, Item C, was not blood, as the State implied to the jury. (TT:2/19: 132-33). Instead, Dr. Reich determined that the DNA extracted from the swab of the Toyota sub -key came from skin cells of Mr. Avery. However, Dr. Reich concluded that the DNA on Item C was planted because the amount of DNA detected by the WSCL was ten times greater than what Mr. Avery actually deposited on an exemplar sub-key by holding it. (Affidavit of Dr. Reich, P-C Group Exhibit 15, r 31).
362.For the purposes of Dr. Reich's experiment, Mr. Avery held the exemplar sub-key in his hand for 12 minutes. The exemplar sub-key was then transported to Dr. Reich's lab, where it was swabbed. The exemplar sub-key, which Mr. Avery was touching for 12 minutes, yielded ten times less DNA than what the WSCL extracted from the Toyota sub-key, Item C. Therefore, Dr. Reich has concluded that Mr. Avery did not deposit his DNA on the sub-key recovered from his bedroom.
363. Mr. Avery recalls that the law enforcement photos taken of bathroom show that his toothbrush had been taken from the bathroom.
364. Dr. Reich has offered the opinion that, to a reasonable degree of scientific certainty, Mr. Avery's DNA on the Toyota sub-key, Item C, was planted frorn a DNA-rich source, such as Mr. Avery's toothbrush. (Affidavit of Dr. Reich, P-C Group Exhibit 15, r 37)
Applicable Case Law Re: Planting and Fabrication of Evidence Violated Mr. Avery's Due Process Rights
365. Mr. Avery has demonstrated that forensic evidence was planted to incriminate him. Specifically, Mr. Avery has demonstrated that the following evidence was planted: the victim's DNA on the damaged bullet (Item FL); his blood in the RAV-4; his DNA on the victim's key; the victim's electronic components in the burn pit; the victim's bones in the bum pit and bum barrels; and his DNA on the hood latch swab. This planting of evidence is equivalent to the fabrication of evidence. No matter what the label, the result is the same. Mr. Avery was convicted on false evidence. The State presented evidence that Mr. Avery was forensically tied to the murder. The jury likely believed that evidence as illustrated by its guilty verdict, but current post-conviction counsel has demonstrated that evidence was false. Therefore, Mr. Avery's due process rights were violated by the State's presentation of the false evidence and his conviction must be vacated.
366. A conviction obtained through the use of false evidence violates due process as guaranteed by the 14th Amendment. State v. Yancey, 32 Wis. 2d 104, 113, (1966); State v. Nerison, 136 Wis. 2d 37, 54 (1987). ...
Mr. Avery has conclusively demonstrated that evidence was planted and fabricated against him. The fact that that evidence was false evidence has been established through new information discovered pursuant to the recent investigation. The application of new technology that did not exist at the time of his conviction has revealed that the evidence presented at the trial to cause his conviction was false. For that reason, Mr. Avery should be granted relief because the new evidence demands the conclusion that Mr. Avery's conviction is the result of a manifest injustice committed against him.
369. Due process may require granting a new trial under § 974 .06 on the basis of evidence discovered after the time for bringing post-verdict motions has passed. Due process warrants a new trial when newly discovered evidence meets the following criteria: (1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial. State v. Boyce, 75 Wis. 2d 452, 457 (1977). If the above criteria are met, the court will conclude that a manifest injustice has occurred, warranting relief. State v. Plude, 310 Wis. 2d 28 (2008).
Applicable Case Law Re: New Evidence
370. As described in great detail herein, Mr. Avery has presented new evidence that entitles him to relief. ...
Mr. Avery has discovered new evidence that shows his conviction was the result of a manifest injustice. Much of the evidence was discovered diligently after the new technology became available. Further, the evidence is crucial to the issue of Mr. Avery's guilt or i1mocence and is not cumulative. As in Plude, relief is warranted.
372. Mr. Avery acknowledges that after satisfying the four prong test, the Court must assess the impact of the new evidence on the evidence presented at trial and find that the reasonable probability exists that the new evidence would have resulted in a different outcome. For example, in State v. Aver/ 4, 2013 WI 13, 345 Wis. 2d 407, the Comi applied the test set forth in Plude to the defendant's argument that he was entitled to a new trial in the interest of justice as the result of new evidence. The defendant submitted that his new "photogranunetry" evidence could not have been presented at his trial because the teclmology was not available. For that reason, he had not been negligent in seeking the evidence. The defendant further argued that the new evidence showed he had not participated in the crime for which he had been convicted, therefore it was material. Finally, the defendant submitted that the evidence was not cumulative because the new evidence showed the perpetrator's height while no such evidence had done so at his trial. The Avery court agreed and found that the defendant met all four prongs of the test. The defendant in Avery was not granted relief because, although he could satisfy the four prong test, he was unable to show that the jury would have reached a different result had his new evidence been presented to the jury. In Avery, strong eyewitness identifications were presented at the trial and the defendant gave a detailed confession. Although the defendant recanted his confession at trial, the jury did not believe him.
373. Just like the defendant in Avery, Mr. Avery has satisfied the first four prongs of the test. The 2016 SEM/EDS examination of the damaged bullet fragment (Item FL) by Dr. Palenik only became available through technological advancements after Mr. Avery's 2007 trial. Similarly, the source testing developed by Dr. Reich at Independent Forensics was not available in 2007, and Dr. Farwell's newest version of Brain Fingerprinting was also not available at the time of the trial. Therefore, Mr. Avery was not negligent in failing to have any of these tests conducted. Clearly, the results of these tests are material and non-cumulative to establishing his i1mocence in the murder of Ms. Halbach. 374. The abundant scientific evidence presented by Mr. Avery in this petition would have had a strong impact on the jury such that one must surely conclude there is a reasonable probability that had the jury heard it, Mr. Avery would have been acquitted.
NEW EVIDENCE SUMMARY, PAGE 177
Mr. Avery has demonstrated the discovery of new evidence by experts. Mr. Avery has shown the following:
A) the damaged bullet (Item FL) did not penetrate the skull of Ms. Halbach, absorb her DNA, or cause her death;
B) the crime-relevant information is not stored in Mr. Avery's brain;
C) the hood latch swab (Item ID) did not swab a hood latch;
D) Mr. Avery did not deposit his DNA on the victim's key by holding it in his hand; rather, it was deposited by applying Mr. Avery's DNA to his key with a DNA rich source such as his toothbrush.
Unlike Avery and consistent with Scheidel!, Plude, McCallum and Edmunds, Mr. Avery's new evidence addresses the heart of the controversy before this Court as to whether the forensic evidence used against Mr. Avery was valid or credible. Mr. Avery has demonstrated that it is not. ...
PROSECUTORIAL MISCONDUCT
a. Mr. Kratz's statements at his press conferences constituted professional misconduct;
b. Mr. Kratz's charging Mr. Avery based upon Brendan's confession constituted professional misconduct;
c. Mr. Kratz's attempt to introduce allegations of Mr. Avery's prior wrongful acts into his 2007 criminal trial constituted professional misconduct;
d. Mr. Kratz's pursuit of inconsistent and irreconcilable theories at the separate trials of Mr. Avery and Brendan constituted professional misconduct;
e. Mr. Kratz's request for an aiding and abetting instruction in Mr. Avery's trial constituted professional misconduct;
f. Mr. Kratz's public dissemination of inflammatory information about Mr. Avery constituted professional misconduct; and
g. Mr. Kratz's jailhouse contacts with Mr. Avery constituted professional misconduct. (Affidavit of Bennett Gershman, P-C Group Exhibit 96, ,i 7) ("Mr. Kratz and Sheriff Pagel 3/2/05 press conference video," attached and incorporated herein as P-C Exhibit 95).
Fabrication of Evidence Pre-Trial: Mr. Kratz Press Conference
382. On March 2, 2006, Mr. Kratz held a press conference following Brendan's confession on March 1, 2006. After warning children not to watch, Mr. Kratz related to the assembled media and live television audience the horrific details in Brendan's confession, outlining Brendan's statements about how he saw Ms. Halbach naked and shackled to Mr. Avery's bed, how he and Mr. Avery repeatedly raped, tortured, and gruesomely butchered Ms. Halbach to death, all based entirely on Brendan's confession. Mr. Kratz knew there was no evidence to corroborate Brendan's confession and implicate Mr. Avery, despite the four-month long police investigation and exhaustive search of Mr. Avery's trailer, garage, and property. Mr. Kratz also knew that this new account of the rape-torture-murder of Ms. Halbach contradicted virtually every fact Mr. Kratz had alleged in his original criminal complaint against Mr. Avery - the place where Ms. Halbach was killed (garage), the weapon used (gun), and the cause of death (shot in the head). Mr. Kratz asserted that "[w]e have no determined what occurred sometime between 3:45 p.m. and 10 or 11:00 p.m. on the 31st of October." He then proceeded to recount for the media, the viewing audience, and ultimately a nationwide audience the following allegations:
a. Mr. Avery, "partially dressed and full of sweat," invited Brendan, his sixteen-year-old nephew, into his trailer;
b. Ms. Halbach, "completely naked and shackled to the bed, scream[ed] louder and ouder for help;"
c. Mr. Avery "invite[d] [Brendan] to sexually assault [Ms.] Halbach, telling him that he ha[d] repeatedly sexually assaulted her;"
d. Brendan "proceed[ed] to sexually assault [Ms.] Halbach, who begged the sixteen-year-old for help;"
e. Mr. Avery "watche[d] as his sixteen-year-old nephew rape[d] this woman;"
f. Mr. Avery complimented Brendan on "what a good job he did;"
g. Mr. Avery told Brendan "of his intent to murder [Ms.] Halbach;"
h."Brendan watche[d] as [Mr.] Avery [took] a butcher knife from the kitchen and stab[bed] [Ms.] Halbach in the stomach;"
i. Mr. Avery, "while [Ms.] Halbach [was] still begging for her life, hand [ed] the knife to the sixteen-year-old boy and instruct[ed] him to cut her throat;"
j. Brendan "cut [Ms.] Halbach's throat but she still [didn't] die;" and
k. Mr. Avery and Brendan together sadistically inflict on Ms. Halbach "additional torture, additional mutilation, additional mechanisms of death which include manual strangulation and gunshot wounds."
383.Mr. Kratz's statements at his press conferences constituted professional misconduct. Mr. Kratz, an experienced prosecutor, knew that a prosecutor is not allowed to disparage the character and reputation of the accused, disclose the existence of a confession or other physical evidence, discuss any information that is likely to be inadmissible in evidence and if disclosed would create a substantial risk of prejudicing an impartial trial, and express an opinion on a defendant's guilt. Mr. Kratz knew that his statements would make it virtually impossible for anyone watching his press conference to keep an open mind about the case and the guilt of the defendants. Mr. Kratz knew what he had accomplished. In a subsequent interview he stated, "I was hoping the media would not choose to release all of the disturbing details." Mr. Kratz knew that his statements would have a "substantial likelihood of materially prejudicing an adjudicative proceeding" and a" substantial likelihood of heightening public condemnation of the accused." (ABA Model Rules 3.6, 3.8; Affidavit of Bennett Gershman, P-C Exhibit 96, ~ 14).
384. Moreover, although a prosecutor is barred from expressing an opinion on the merits of a case and the guilt of an accused, Mr. Kratz bolstered his grisly description of the crime by representing that everything he said was a truthful and accurate account. He asserted in his March 1, 2006, press conference that law enforcement "now has a definitive set of answers as to what happened to [Ms.] Halbach "and that law enforcement is presently executing a search warrant on the Avery property where" we know exactly what to look for and where to look for it." Then, at his press conference the next day, Kratz assured his listeners that "we have now determined what occurred sometime between 3:45 p.m. and 10 or 11 p.m. on the 31 st of October." (Affidavit of Bennett Gershman, P-C Group Exhibit 96, ~ 15; 3/1/06 and 3/2/06 Press Conference, P-C Group Exhibit 95).
385. Given Mr. Kratz's prestige and prominence as the special prosecutor appointed by the governor to lead the investigation, Mr. Kratz's assertions that law enforcement had "solved" the case would almost certainly be greeted by public with both relief that the supposed perpetrators had been apprehended and an outcry to punish them. (Affidavit of Be1mett Gerslunan, P-C Group Exhibit 96, ~ 16).
Mr. Kratz Charged Mr. Avery Despite Knowing that Brendan's Confession was Fabricated
386. Mr. Kratz knew at the time of his March 2, 2006, press conference that every statement he made accusing Mr. Avery of the horrific acts against Ms. Halbach - shackling, raping, torturing, and butchering her to death - was based exclusively on the uncorroborated confession of 16-year-old Brendan, which has recently been found by a federal court to have been coerced by the police. Mr. Kratz knew that Brendan was of borderline intelligence, attended special education classes, and was known as a mild-mannered, introverted young man who was never before in trouble with the law. As head of the investigation, Mr. Kratz knew several other critical facts: the police interrogated Brendan several times without his lawyer or parent being present; there were no independent facts or circumstances to corroborate Brendan's confession; Brendan's confession presented a narrative that was totally different than the version Mr. Kratz used in filing the original murder charges against Mr. Avery; and Brendan's confession was legally inadmissible against Mr. Avery for constitutional and statutory reasons. In short, Mr. Kratz had no evidence and therefore no legal basis to support the new charges of sexual assault and torture against Mr. Avery contained in the amended complaint and announced at the press conference. (Affidavit of Bem1ett Gerslunan, P-C Group Exhibit 96, r 17).
387. In addition to saturating the media and the public with an extraordinarily horrific description of Mr. Avery repeatedly raping, torturing, and sadistically butchering to death a young woman, Mr. Kratz knew when he brought the new charges against Mr. Avery that he had no legal basis to do so. Mr. Kratz knew that a four-month police investigation that had conducted at least eight separate searches of Avery's trailer, garage, and every part of the properly had yielded no forensic or physical evidence to corroborate Brendan's confession. A prosecutor engages in professional misconduct when he makes unwarranted claims and brings unwarranted criminal charges. ...
Due Process Violations: Mr. Kratz's Presentation of Inconsistent and Irreconcilable Theories
397. A prosecutor's fundamental interest in criminal prosecutions is "not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Although the prosecutor is allowed to prosecute with earnestness and vigor, and "may strike hard blows, he is not at liberty to strike foul ones." Id. Constitutional and ethical rules impose a special obligation on prosecutors to serve and vindicate the truth and administer justice. Thus, a prosecutor violates due process and his ethical duty to serve the truth when he presents inconsistent and irreconcilable theories at two different trials against two different defendants. Such conduct is inherently unfair, deserves the truth, renders any resulting conviction umeliable, and undermines confidence in the verdict. (Affidavit of Be1mett Gerslunan, P-C Group Exhibit 96, ,r 28).
398. At Mr. Avery's trial, Mr. Kratz argued in his summation that the "uncontested and uncontroverted facts" proved several issues. First, he argued that uncontested and uncontroverted facts pointed to Mr. Avery as the "one person" who was exclusively responsible for the death of Ms. Halbach. Mr. Kratz argued in his closing:
a. There is no question about who is responsible for the death and the mutilation of Ms. Halbach;
b. All of the evidence points to one person. That's the one person being responsible;
c. I'm going to argue at the conclusion of this case who that one person is. I bet you can guess who I'm going to suggest was responsible;
d. The facts are uncontested, uncontroverted;
e. Mr. Avery was the last person to see Ms. Halbach alive;
f. All the early clues pointed to one man. One person. The last person to see her alive;
g. Who's involved in the mutilation process? The evidence keeps pointing to one individual;
h. All of the evidence points to only one person; and
i. Other suspects were checked out. There was no evidence pointing to suspects other than Mr. Avery.
399. Mr. Kratz also argued that Ms. Halbach's death was caused by two gunshots to her head. He argued:
a. We're going to hear about gunshots to the head;
b. The instrumentality of the murder was a .22 caliber rifle;
c. We will actually be arguing to you that Mr. Avery handled, held that weapon in his hands when Ms. Halbach was killed;
d. Ms. Halbach's death caused by two gunshot wounds to the head;
e. Ms. Halbach's potential and future aspirations were snuffed out by one act, and by one act from one person; and
f. Ms. Halbach was killed by gunshot wounds.
400. Mr. Kratz also claimed that the place where Teresa Halbach was killed was in Avery's garage. He argued:
a. No blood was found in the trailer. But since Teresa wasn't killed in the trailer, there shouldn't be;
b. She was not killed in the trailer;
c. Where was Teresa killed? This is an easy answer, or at least it is an answer that is directed by all the physical evidence in this case. Teresa Halbach was killed in the garage; and
d. She was killed in Steven Avery's garage. (Affidavit of Bennett Gershman, P-C Group Exhibit 96, ~~ 29-31).
401. But when trying Brendan, Mr. Kratz claimed that Brendan killed Ms. Halbach, or at least participated in her killing with Mr. Avery. Mr. Kratz claimed that she was killed by Mr. Avery stabbing her in the stomach, Brendan slitting her throat, Mr. Avery manually strangling her, and then incidentally adding a gunshot. Mr. Kratz argued that she was killed in Mr. Avery's trailer, not in his garage.
402. Mr. Kratz's inconsistent contentions at the trials of Mr. Avery and Brendan violate due process as well as a prosecutor's duty to promote the truth and serve justice. See Stumpf v. Houk, 653 F.3d 426 (6 th Cir. 2011); Smith v. Groose, 205 F.3d 1045 (8 th Cir. 2000); State v. Gates, 826 So.d 1064 (Fla. App. 2002). A prosecutor may not advance at separate trials theories of guilt which cannot be reconciled factually. Mr. Kratz could not in good faith argue at Mr. Avery's trial that Mr. Avery was the only killer, and then argue at Brendan's trial that Mr. Avery along with Brendan killed Ms. Halbach. Mr. Kratz could not in good faith argue at Mr. Avery's trial that Ms. Halbach's death was caused by gunshot wounds and then argue at Brendan's trial that her death was caused by stab wounds to her stomach and throat and manual strangulation as well as gunshots. Mr. Kratz could not in good faith argue in Mr. Avery's trial that Ms. Halbach was killed in the garage and then argue in Brendan's trial that she was killed in Mr. Avery's trailer.
KEN KRATZ, PAGE 195
Interestingly, quite similar allegations in the disciplinary proceeding against Mr. Kratz are present in Mr. Kratz's solicitation of Mr. Avery. Thus, in the disciplinary proceeding Mr. Kratz was found to have acted with a "selfish motive," manipulated a "vulnerable victim," engaged in "exploitative behavior," engaged in "harassing behavior," showed a "crass placement of his personal interests above those of his client," and "crossed the line separating the unprofessional conduct from the acutely offensive and harassing." The referee also noted as an aggravating factor Mr. Kratz's considerable legal experience and leadership on victims' rights.
421. To be sure, Mr. Avery was neither a client of Mr. Kratz nor a crime victim, and so his conduct toward Mr. Avery may not have been as "boorish," and "appalling," the way the Wisconsin Supreme characterized Mr. Kratz's conduct towards the vulnerable victims of his sexual pursuits. But as a matter of professional ethics, Mr. Kratz's conduct towards Mr. Avery was as intimidating, self-interested, and manipulative as it was to the women Mr. Kratz abused. Mr. Avery was in a hopeless position and an easy target for Mr. Kratz's solicitations. Mr. Kratz knew the prison authorities had objected to Mr. Avery speaking to Mr. Kratz and that Mr. Kratz's overtures might hurt Mr. Avery. Particularly disingenuous was Mr. Kratz's ploy to suggest falsely that Mr. Kratz was simply a disinterested person trying to assist Mr. Avery to tell his "honest" story to the world, but knowing full well that he wanted Mr. Avery's story only if Mr. Avery told his story in a way that served Mr. Kratz's selfish interests in writing a book and promoting himself. Mr. Kratz exploited his former status as Mr. Avery's prosecutor "who knows more about your case than anyone." Mr. Kratz disparaged Mr. Avery's" continued nonsense about being set up." He intimidated Mr. Avery as he did with the women he abused, trying to convince Mr. Avery to talk to him by the veiled threat that it was "too bad" that Mr. Avery refused to talk to him "because you had ONE opportunity to finally tell all the details, but now that will never happen."
422. That same "ugly picture" depicted in Mr. Kratz's offensive sexual misconduct with women appears in Mr. Kratz's solicitation of Mr. Avery. Mr. Kratz acted out of his own self-interest, in an utterly unethical way, abused his professional office, and engaged in conduct prejudicial to the administration of justice. (Affidavit of Bennett Gershman, P-C Group Exhibit 96, 11 49-53). ...
Instead, the prior post-conviction attorneys argued that the defense should not have been barred from arguing that a third party was responsible for the crimes charged. The trial defense counsel had not identified a specific perpetrator. Instead, they argued that Mr. Avery's family members were potential suspects, as were customers of the Avery Salvage Yard. Those unnamed suspects, according to the trial attorneys, had the same opportunity as Mr. Avery had to commit the crime. The prosecution argued that State v. Denny, 120 Wis. 2d 614,357 N.W.2d 12 (Ct.App.1984) set forth the test to be applied. The trial court agreed, and barred the evidence.
429. Denny mandates that a defendant seeking to introduce third party liability evidence must demonstrate a legitimate tendency that a third person could have committed the crime. To show a "legitimate tendency," a defendant may not introduce third party liability evidence that simply affords a possible ground of suspicion against another person. Pursuant to Denny, a defendant must show motive, opportunity and additional evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances. Id. at 120 Wis. 2d at 623-24, 357 N.W.2d 12.
430. There was no realistic possibility that the post-conviction attorneys would be successful in reversing the trial court's decision barring the third-party evidence at trial....
DENNY STANDARD
Further, the prior post-conviction attorneys claimed that the trial attorneys were barred from introducing evidence of other sources of Mr. Avery's blood that could have been used to frame him, but the trial attorneys were permitted to do so, and they did introduce such evidence. (Order, P-C Exhibit 94, p. 70).
446. Simply put, the trial attorneys were not barred from introducing evidence and presenting arguments that the prior post-conviction attorneys contended they were barred from introducing and presenting. (Order, P-C Exhibit 94, p. 70- 71 ).
447. The prior post-conviction attorneys improperly cited an unreported decision that bore no factual relationship to the case at bar. (Order, P-C Exhibit 94, p. 73).
448. The prior post-conviction attorneys argued that the trial attorneys were barred from offering their "frame up evidence" but the trial attorneys were not barred from doing so, and they did. (Order, P-C Exhibit 94, p. 74).
449. The trial attorneys presented an offer of proof that related to the opportunity of third parties to commit the crime, but not to any effort on the part of those third parties to frame Mr. Avery for the crime. (Order, P-C Exhibit 94, p. 74).
450. The trial attorneys claimed they were not offering any evidence that a third party had a motive to commit the murder, but they actually did seek to offer motive evidence; for example, the trial attorneys attributed a motive to Scott Tadych, Andres Martinez, Charles Avery and Earl Avery. (Order, P-C Exhibit 94, p. 76). ...
FAILURES BY PRIOR DEFENSE COUNSEL
Mr. Avery's prior post-conviction counsel failed to retain experts in blood spatter, DNA, ballistics, trace, fire forensics, forensic pathology, police procedure and investigation, prosecutorial misconduct, and brain fingerprinting, as well as a competent investigator and forensic anthropologist, who would have been able to demonstrate that all of the forensic evidence used to convict Mr. Avery for Ms. Halbach's murder was planted.
471. Ms. Hagopian and Ms. Askins raised claims that were clearly less strong than the current claims of ineffectiveness raised by Mr. Avery's current post-conviction counsel. They confined the ineffectiveness claim against Mr. Buting and Mr. Strang to the narrow issue of juror removal. They overlooked the clearly stronger ineffectiveness claim of trial defense counsel's failure to hire a blood spatter expert who would have demonstrated as Mr. James has done that the blood deposited in the RAV-4 was selectively planted and did not originate from an actively bleeding finger as Mr. Kratz told the jury. A blood spatter expert would also have refuted the testimony of the State's expert, Mr. Stahlke, that the blood spatter on the rear cargo door was created when Ms. Halbach was thrown into the rear cargo area of the RAV-4. The correct explanation of the blood spatter on the rear cargo door would have provided a completely different scenario of the attack upon Ms. Halbach than the one presented by Mr. Kratz.
472. If Ms. Hagopian and Ms. Akins had hired a DNA expert such as current post-conviction counsel's expert Dr. Reich, the DNA expert would have conducted a number of experiments to demonstrate that it is highly improbable that Mr. Avery would have been able to leave a full DNA profile on the hood latch by simply opening the hood as Mr. Kratz alleged to the jury in his closing argument. Additionally, if Ms. Hagopian and Ms. Askins had retained a trace expert such as Dr. Palenik they would have discovered that the alleged hood latch swab did not come from swabbing the hood latch; rather, it most likely came from Inv. Weigert substituting the hood latch swab for the groin swabs taken from Mr. Avery at the Aurora Medical Center. If Ms. Hagopian and Ms. Akins had done a thorough review of the discovery and interviewed Mr. Avery about the groin swabs taken from him, they would have recognized the suspicious circumstances surrounding the acquisition and disposal of the groin swabs by Inv. Wiegert from Mr. Avery. If Ms. Hagopian and Ms. Askins had investigated the chain of custody forms for the hood latch swab, they would have discovered that it was Inv. Wiegert not Dep. Hawkins who delivered the alleged "hood latch" swabs to the WCL. Ms. Hagopian and Ms. Askins would have been able to present this compelling information about the alleged hood latch swab to the trial court and been able to undermine confidence in the verdict against Mr. Avery.
473. If Ms. Hagopian and Ms. Askins had hired a police procedure and investigation expert such as Mr. McCrary, current post-conviction counsel's expert, they would have been able to present admissible evidence that law enforcement's investigation of Mr. Avery was fatally flawed because of its premature focus on Mr. Avery rather than developing evidence as to Ms. Halbach's background and her enhanced risk for becoming a victim of a violent crime. Additionally, an expert such as Mr. McCrary and a competent investigator would have developed invaluable information about one potential suspect that had a prior history of verbal and physical abuse of Ms. Halbach; an injury pattern consistent with a struggle at the relevant time; and had deleted voicemail messages from Ms. Halbach's phone. An expert such as Mr. McCrary and a competent investigator would also have learned that the suspected lied to investigators about cnme scene evidence, his relationship with Ms. Halbach, and his identity during the search; and controlled the search and the dissemination of information to law enforcement after he moved into Ms. Halbach's house. A competent investigator would have discovered Mr. Siebert, who witnessed the RAV-4 being brought onto the property prior to November 5, 2005.
474. Current post-conviction counsel found a letter dated May 4, 2008 and received by the State Public Defender Madison Office on June 20, 2008 from an inmate Bobby Don Salas ("Mr. Salas"), inmate number 420573. Remarkably, Mr. Salas suggested that Mr. Avery get a blood spatter expert, DNA expert on the key to determine the source of the DNA, and "brain fingerprint" testing. This letter was forwarded to Ms. Hagopian and was ignored by her. (Letter from Mr. Salas, attached and incorporated herein as P-C Exhibit 105).
475. Ms. Hagopian and Ms. Askins should have discovered and raised the Brady violations discussed in paragraphs 293-303.
476. Ms. Hagopian and Ms. Askins should have interviewed Mr. Avery to learn that the source of his blood that was planted in the RAV-4 came from his trailer sink, his observation of the RAV-4 being driven up to his property on November 3, 2005, and his description of the groin swabs taken from him and concealed by Inv. Weigert. ...
Mr. Avery had no way of knowing the factual and legal basis the claims set forth herein. As a learning disabled, indigent prisoner, Mr. Avery simply could not have known them. His attempt to file a meritorious pleading was thwarted by his lack of legal knowledge.
492. The current motion is the product of over a thousand hours of attorney time, hundreds of hours expended by private investigators, numerous consultations with experts, the expenditure of funds to retain those experts, and more. To expect an indigent prisoner acting pro se to compile a meritorious motion under these circumstances would be unreasonable. Mr. Avery's lack of legal knowledge, cognitive deficiencies and the complexity of this unique case provide the sufficient reason that the current claims should be addressed on the merits. IN THE ALTERNATIVE, MR. AVERY IS ENTITLED TO A NEW TRIAL IN THE INTEREST OF JUSTICE PURSUANT TO§ 805.15.
493. Alternatively, Mr. Avery is entitled to a new trial in the interest of justice. If this court were to conclude that this new evidence warrants a new trial in the interest of justice, this court need not resolve whether the new evidence satisfies the test for granting a new trial based upon newly discovered evidence.
"It's not really a big deal," Zellner said of the decision. "We'll be submitting a motion to vacate the order because we have an agreement reached between both parties and the judge assumed that all the scientific evidence had been submitted. We'll have more scientific evidence as well as new witness affidavits that we'll be submitting before Thanksgiving."
More case updates at this link:
http://georgezipperer.blogspot.com/2017/06/kathleen-zellner-files-post-conviction.html
END UPDATE
At about 10:30 a.m. on 11/5/2005, after 20 minutes of searching a 40-acre property with 4,000 vehicles, Pam Sturm found Teresa Halbach's RAV-4. At 11:30 a.m., about 30 minutes after law enforcement swarmed the Avery property, Manitowoc County deputy Jacobs asked: "Do we have Steven Avery in custody?"
The following are excerpts from the 1,200-page post-conviction petition filed on June 7, 2017.
Please take notice that the Petitioner, Steven A. Avery ("Mr. Avery"), by his undersigned attorneys, respectfully moves the Court pursuant to Wis. Stat. § 974.06 for an Order vacating the judgment of his convictions and sentence and ordering a new trial. In the alternative, he asks that this Court grant a new trial in the interests of justice pursuant to Wis. Stat. § 805.15 or its inherent authority because the real controversy was not fully tried. In support of this motion, Mr. Avery alleges the following: Mr. Avery requests an evidentiary hearing and that he be produced for that hearing. ...
Mr. Avery's current post-conviction counsel have completed scientific testing and conducted an extensive re-investigation of his case, which demonstrates that planted evidence and false testimony were used to convict Mr. Avery of the first degree intentional homicide of Teresa Halbach ("Ms. Halbach"). Mr. Avery's trial defense counsel, Jerome Buting and Dean Strang ("trial defense counsel"), and prior post-conviction counsel, Suzanne Hagopian ("Ms. Hagopian") and Martha Askins ("Ms. Askins"), were ineffective in failing to hire the experts needed to establish that all of the evidence used by the State to convict Mr. Avery was planted or fabricated. Trial defense counsel and post-conviction counsel failed to conduct a proper investigation to refute the State's timeline and theory of when, where, and how this homicide occurred and to meet the standard necessary to name third party suspects. ...
To understand how this happened, one must examine the other side of the coin: the performance of Mr. Avery's trial defense counsel. The State relied upon the following items of forensic evidence that allegedly linked Mr. Avery to the crime:
1) Mr. Avery's blood in the RAV-4;
2) Mr. Avery's DNA on the hood latch;
3) the electronic components (camera, palm pilot, and cell phone) in Mr. Avery's burn barrel;
4) the bones and remnants of Ms. Halbach's clothing in Mr. Avery's burn pit;
5) the Toyota key in Mr. Avery's bedroom with Mr. Avery's DNA; and
6) Ms. Halbach's DNA on the damaged bullet found in Mr. Avery's garage.
The State convicted Mr. Avery on this ludicrous theory because trial defense counsel only had two experts to combat the State's 14 experts. One of the trial defense counsel's experts performed at a substandard level, and the other was not as qualified as the State's expert. Trial defense counsel claimed evidence was planted but failed miserably in proving that assertion by lacking experts in bloodstain pattern analysis, DNA, ballistics, forensic fire, trace, forensic pathology, and police procedure and investigation. Additionally, trial defense counsel failed to conduct a thorough investigation of the victim's background, deleted cell phone calls, potential third party suspects, or to construct an accurate timeline of Ms. Halbach and Mr. Avery's activities on October 31, 2005. ...
Trial defense counsel, by not carefully reviewing the discovery and not having the appropriate experts, failed to realize the following:
1) Mr. Avery's groin swab had been substituted for the hood latch swab by law enforcement;
2) the key discovered in Mr. Avery's bedroom was a sub-key and was planted by Lt. Lenk and Sgt. Colborn immediately before its discovery;
3) Ms. Halbach's voicemail messages had been deleted by the killer to keep her voice mailbox open and delay her family and friend's realization that she was missing;
4) Ms. Halbach's last appointment was at the Zipperer's not the Avery's, and the CD of her voicemail left on the Zipperer's answering machine was concealed and/or destroyed by the State to mislead the jury into believing Ms. Halbach's last stop was Mr. Avery's;
5) the fuel level in Ms. Halbach's car was concealed by the State so that the mileage the vehicle had been driven on October 31 could not be determined, thereby preventing Mr. Avery from arguing that Ms. Halbach's vehicle had been driven many more miles after it left his property;
6) Ms. Halbach was at a higher risk for being a victim of violence because of her involvement in nude photography and her affair with a married man and with her ex-boyfriend's best friend;
7) Ms. Halbach's ex-boyfriend was verbally and physically abusive to her during their relationship;
8) Ms. Halbach's ex-boyfriend had sustained visible injuries to his hands, from fingernail scratches, around the time of her disappearance; and
9) Ms. Halbach's ex-boyfriend initially gave the police a false name, minimized his relationship with her, lied about crime scene evidence, controlled and led the searchers to Ms. Halbach's vehicle, had unrestricted access to the Avery property to plant evidence, assisted law enforcement in locating her car, and was living in her house after her murder in complete control of the evidence, disseminated to law enforcement, from her personal papers and effects. ....
Prior post-conviction counsel never had an investigator develop evidence about third party suspects that would meet the Denny standard, and they never hired experts in blood spatter, DNA, ballistics, forensic fire, trace, forensic pathology, police procedure and investigation, brain fingerprinting, or prosecutorial misconduct, or a competent forensic anthropologist, or investigator. Current post conviction counsel has retained 10 experts and 2 investigators who have developed strong evidence that undermines confidence in Mr. Avery's verdict. ...
THE SOURCE OF STEVEN AVERY'S BLOOD THAT WAS PLANTED IN THE RAV4
On the evening of November 3, 2005, Mr. Avery was having dinner at his mother's residence and when he walked outside her residence, a uniformed officer pulled up in a MCSD squad car and asked if he could speak with him. Later, Mr. Avery learned that this individual's name was Sgt. Colborn. Sgt. Colborn asked Mr. Avery if a female from AutoTrader Magazine had come to the property on Monday to take pictures of a vehicle they were selling. Mr. Avery told Sgt. Colborn that a female from AutoTrader had come to the property at approximately 2:30 p.m. and had photographed a van his sister was selling. Mr. Avery contended that she was on the property for less than five minutes. Mr. Avery told Sgt. Colborn that he noticed her photographing the van and he exited his trailer to pay her. Mr. Avery observed Ms. Halbach leave the property and turn left on Highway 147. Sgt. Colborn misrepresented, in a report written months later, that Mr. Avery said 3:00 p.m., not 2:30 p.m. Mr. Avery's affidavit is consistent with all of his prior statements to police that Ms. Halbach was on the Avery property sometime between 2:00 p.m. and 2:30 p.m. (Affidavit of Steven A. Avery, Sr., "Affidavit of Steven Avery," attached and incorporated herein as P-C Exhibit 4).
Mr. Avery then drove his Pontiac Grand Am from his parents' residence to its usual parking spot in front of his garage. Mr. Avery then walked next door to his sister's trailer, where he attempted to unhitch the trailer. In so doing, Mr. Avery broke open the cut on the middle finger of his right hand. His finger was dripping blood as he walked back to his car to retrieve his cell phone charger. While in his car, Mr. Avery dripped blood from his finger onto the seats and the gear shift. From his car, Mr. Avery walked to his trailer, entering through the door at the south end. Mr. Avery dripped blood on the floor as he entered the bathroom to find a piece of tape to put on the cut. Mr. Avery dripped blood onto the rim and basin of the sink and the bathroom floor. He did not wash away or wipe up the floor or sink because his brother Charles Avery ("Chuck") was waiting for him to go to Menards in Manitowoc with him. He hastily wrapped his finger in masking tape and exited the trailer through the front door. Mr. Avery forgot to lock the south door on the front of the trailer. He did not clean the blood out of his sink prior to leaving the trailer at approximately 7:30 p.m. to go to Menards with his brother Chuck. (Affidavit of Steven Avery, P-C Exhibit 4). Menards in Manitowoc was an approximately 23-minute drive from the Avery property (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Avery and Chuck checked out at Menards at 8:06 p.m. (Menards Surveillance Video, attached and incorporated herein as P-C Exhibit 5).
Blood stains were noted on the molding (Item AA) and the inside living room door (Item CQ) of Mr. Avery's trailer (3/31/2006 WSCL DNA Report, attached and herein as P-C Exhibit 6, STATE 5245, 5249). Mr. Avery's Pontiac was unlocked and visible blood was on the gear shift. Anyone who examined the interior of his trailer or vehicle would have recognized that the locations of the various blood stains indicated Mr. Avery had a cut on his hand (Affidavit of Steven Avery, P-C Exhibit 4).
Mr. Johnson, a family friend of the Avery's and owner of Mr. Avery's trailer, remembers observing the cut on Mr. Avery's finger at least one week prior to October 31, 2005 (Affidavit of Roland A. Johnson, "Affidavit of Rollie Johnson," attached and incorporated herein as P-C Exhibit 7).
At approximately 7:30 p.m. [on November 3, 2005], Mr. Avery was exiting the Avery property onto Highway 147 when he observed taillights of a vehicle close to the front of his trailer (Affidavit of Steven Avery, P-C Exhibit 4; Menards Surveillance Video, P-C Exhibit 5). Mr. Avery contends that the only way the vehicle could enter his property from the direction it was pointed was if it was driven by way of Kuss Road and then across the field to the front of his trailer. Mr. Avery believes the vehicle's taillights were similar to those of the RAV-4 and not a squad car. Mr. Avery instructed his brother Chuck to turn around and drive back to the trailer, but by the time they drove back to Mr. Avery's trailer, the vehicle had departed into the darkness (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Avery and Chuck went to Menards and the county jail to drop off money for Mr. Avery's girlfriend (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Avery arrived home at approximately 10:00-10:30 p.m. Mr. Avery did not enter the bathroom and went straight to bed (Affidavit of Steven Avery, P-C Exhibit 4).
On November 4, 2005, Mr. Avery awoke at his normal time of 6:00 a.m. When he entered the bathroom of his trailer to take a shower, he observed that most of the blood in and around his sink had been removed (Affidavit of Steven Avery, P-C Exhibit 4).
Mr. Avery consistently expressed his belief to his attorneys and the media that the blood of his found in Ms. Halbach's vehicle was planted and that it came from his trailer. In one interview, he said he dripped blood from his finger into his bathroom sink (Video Clips from 11/9/05 NBC-26 WFRV interview and 11/18/05 WBAY interview, attached and incorporated herein as P-C Group Exhibit 8).
At 10:30 a.m. on November 4, 2005, Lt. Lenk and Det. Remiker arrived at the Avery property to interview Mr. Avery (Pages from MTSO Summary Report, P-C Group Exhibit 11, STATE 80). In the early evening, Mr. Avery smelled cigarette smoke when he entered his bedroom to retrieve a cable for his mother's television. Neither Mr. Avery nor his girlfriend smoked. Mr. Avery believes his trailer was entered unlawfully a second time (Affidavit of Steven Avery, P-C Exhibit 4; 11/9/05 Interview of Steven Avery and Execution of Search Warrant, "11/9/05 Execution of Search Warrant," attached and incorporated herein as P-C Exhibit 9, STATE 553-54).
On November 5, 2005, when Mr. Avery was preparing to leave for a trip to the family properly in Crivitz, he noticed the south front door of his trailer had been pried open. Specifically, Mr. Avery observed pry marks on the south door of his trailer (Affidavit of Steven Avery, P-C Exhibit 4; Affidavit of Rollie Johnson, P-C Exhibit 7). He remembered locking this door after Lt. Lenk and Det. Remiker left on the morning of November 4, 2005 (Affidavit of Steven Avery, P-C Exhibit 4).
As Mr. Avery's brother Chuck left for Crivitz [on November 4, 2005], he observed headlights in the area where Ms. Halbach's vehicle was discovered by the pond. Chuck called Mr. Avery at 7:20 p.m. to check on the headlights, but by the time Mr. Avery arrived by Chuck's trailer, the lights were gone (Affidavit of Steven Avery P-C Exhibit 4; Page from Steven Avery's Phone Records, attached and incorporated herein as P-C Exhibit 10; Pages from MCSD Summary Report verifying Chuck's phone number, attached and incorporated herein as P-C Exhibit 11, STATE 93). ...
BLOOD PATTERN ANALYSIS
Mr. James, a renowned blood spatter expert, has examined all of the relevant blood spatter evidence produced in discovery to trial defense counsel. Mr. James oversaw a number of blood spatter experiments and formed opinions based upon a reasonable degree of scientific certainty as a bloodstain pattern analyst.
Mr. James, based upon the experiments that he oversaw, opines that the blood spatter found in the RAV-4 was selectively planted because the experiments demonstrated that if the State's theory that Mr. Avery was actively bleeding from the cut on his right middle finger was true, then blood would have been deposited in many more places in the RAV-4 than where it was deposited.
The blood spatter experiments conducted with actual blood on the subject's middle finger conclusively demonstrate that the blood would have been deposited on the RAV-4's outside door handle, key, key ring, steering wheel, the gear shift lever, brake lever, battery cables, and hood prop. The blood found in the RAV-4 was only deposited in six places, not 15, and consisted of small drops of blood in the front of Ms. Halbach's RAV-4 on the driver and passenger seats, driver's floor, and the rear passenger door jamb.
Mr. James oversaw experiments that conclusively refute Mr. Kratz's argument that the "sheer volume, the sheer number of places rule out that the blood in the RAV-4 was planted." The experiments demonstrated that it was actually a small amount of blood that was planted in the RAV-4, and it was selectively dripped and one stain most probably was applied with an applicator (Affidavit and CV of Stuart James ("Affidavit of Stuart James"), attached and incorporated herein as P-C Group Exhibit 16).
Mr. James opines that the blood flakes detected on the carpet of the RAV-4 were planted because experiments demonstrated that blood dripped on RAV-4 carpeting would be absorbed in the carpet and would not form flakes on top of the carpet (Affidavit of Stuart James, P-C Group Exhibit 16).
Mr. James opines that the most likely source of Mr. Avery's planted blood was the blood deposited by Mr. Avery in his sink on November 3, 2005, and not blood from the 1996 blood vial. Mr. James, because of his familiarity with EDTA blood vials, opines that the hole in the top of the 1996 blood vial tube was made at the time Mr. Avery's blood was put in the tube, and the blood around the stopper is a common occurrence and does not indicate that the tube was tampered with (Affidavit of Stuart James, P-C Group Exhibit 16).
Mr. James opines that the blood spatter on the inside of the rear cargo door was the result of Ms. Halbach being struck with an object consistent with a hammer or mallet while she was lying on her back on the ground behind the vehicle after the rear cargo door was opened.
Mr. James opines that the State expert, Mr. Stahlke, mistakenly described the blood on the rear cargo door as having been projected from Ms. Halbach's bloodied hair after she had been shot and as she was thrown into the cargo area of the vehicle (Affidavit of Stuart James, P-C Group Exhibit 16).
Mr. James, by overseeing a series of experiments, opines that the State's description of the cause of the blood spatter on the rear cargo door, resulting from Ms. Halbach being thrown into the cargo area and blood being projected from her bloodied hair on the cargo door, is demonstrably false (Affidavit of Stuart James, P-C Group Exhibit 16).
The erroneous blood spatter testimony of the State's expert Mr. Stahlke resulted in the State presenting a false narrative to the jury about the sequence of events surrounding the attack on Ms. Halbach. The State presented a scenario where Ms. Halbach was already fatally injured in Mr. Avery's garage prior to being thrown in the back of the RAV-4. The experiments overseen by Mr. James demonstrate that Ms. Halbach was struck on the head after she opened the rear cargo door. She fell to the ground next to the rear bumper on the driver's side where she was struck repeatedly by an object similar to a mallet or hammer (Affidavit of Stuart James, P-C Group Exhibit 16).
THE BULLET
Dr. Palenik will testify that "there is no evidence to indicate that the bullet (Item FL) passed through bone. In fact, the particulate evidence that is present strongly suggests an alternate hypothesis, which is that the trajectory of the fired bullet took it into a wooden object, possibly a manufactured wood product. Furthermore, the presence of red droplets deposited on the bullet suggests that the bullet had picked up additional contamination from its environment at some point after coming to rest (i.e., droplets of potential red paint or a red liquid)." The State's theory that Ms. Halbach's cause of death was the result of being shot twice in the head with .22 caliber long rifle bullets is completely disproven by Dr. Palenik's testing. Because Dr. Palenik has determined that the damaged bullet (Item FL) never passed through bone (i.e., Ms. Halbach's skull), the State's evidence that Ms. Halbach's DNA was found on the damaged bullet (Item FL) is completely discredited. ...
Dr. Palenik examined the control samples submitted by Mr. Haag and determined that they did have bone particles embedded in them, even after they were washed in a solution in a similar manner to Item FL at the Wisconsin State Crime Lab ("WSCL"). Mr. Haag will offer the opinion that damaged bullet (Item FL) would have had bone particles embedded in it if it had been shot through bone such as a human skull. ...
THE HOOD LATCH
Dr. Palenik examined the hood latch swab (Item ID) that allegedly was used to swab the hood latch of Ms. Halbach's vehicle and allegedly contained Mr. Avery's DNA. Dr. Palenik has concluded, by a series of experiments of the trace materials on the hood latch swab (Item ID), that it was never used to swab a hood latch.
Dr. Reich will testify that the DNA on the hood latch did not come from Mr. Avery touching the hood latch, and most probably came from a relabeled groin swab. ...
Dr. Palenik has also examined the victim's key (Item C) found in Mr. Avery's bedroom, with his DNA on it, and has conducted a trace examination and experiments and has concluded that the victim's key (Item C) was not a key used every day by Ms. Halbach. ...
Dr. Reich will testify that the DNA on Ms. Halbach's sub-key located in Mr. Avery's bedroom did not come from Mr. Avery touching the key, but rather it came from another more prolific DNA source such as a toothbrush. ...
THE BONES
Dr. DeHaan will testify that Ms. Halbach's bones were planted in Mr. Avery's burn pit after being burned in a burn barrel. Dr. DeHaan will testify that Ms. Halbach's body was not burned in Mr. Avery's burn pit. ...
Dr. Symes will testify that the suspected human pelvic bone found in the Manitowoc County quarry should have been examined microscopically and histological slides should have been taken to definitively establish that this bone was human in origin. Establishing that the bone was, in fact, human would have supported trial defense counsel's theory that the bones in Mr. Avery's burn pit were planted. ...
THE BLOOD IN THE RAV-4
Mr. James will testify that the blood stains in the RAV-4 were selectively planted and 1 blood stain was placed by the ignition with an applicator. Mr. James will testify that Mr. Avery's blood did not come from the 1996 blood vial, but was instead blood dripped by Mr. Avery into his bathroom sink in 2005, which was removed and dripped into the RAV-4. Mr. James will testify that the blood stain on the rear cargo door was not the result of Ms. Halbach being thrown into the rear cargo area of the RAV-4 after she had been shot as the State contended. ...
THE INVESTIGATION
Mr. McCrary has investigated thousands of violent crime cases nationally and internationally. Mr. McCrary has worked extensively with international and national law enforcement agencies including Scotland Yard, the New York City Police Department, the Texas Rangers, the Boston Police Department, the Florida Department of Law Enforcement, and the California Attorney General's Office. Mr. McCrary has been qualified as a police procedure and crime scene investigation expert in the Seventh Circuit. Jimenez v. City of Chicago, 732 F.3d 710, 719-23 (7th Cir. 2013). Mr. McCrary will testify that the law enforcement investigation into the Halbach murder was deeply flawed. The investigation prematurely focused on Mr. Avery as a suspect while failing to study the victim, Ms. Halbach, to determine if she was at an elevated risk of becoming a victim of violent crime. Because the investigation shifted prematurely to a "suspect-based investigation," it ignored significant evidence that pointed to another potential suspect as the murderer of Ms. Halbach.
THE EXPERTS
James Kirby ("Mr. James Kirby") and Steven Kirby ("Mr. Steven Kirby").
Mr. James Kirby and Mr. Steven Kirby are both licensed Illinois and Wisconsin investigators. Mr. James Kirby has interviewed over 35 witnesses in regard to the Halbach murder case. He has uncovered evidence of the abusive relationship between Ms. Halbach and Mr. Hillegas. Mr. James Kirby has found evidence that Mr. Hillegas lied to law enforcement about the broken parking light in Ms. Halbach's car. He has interviewed witnesses whose statements were misrepresented by law enforcement officers investigating the Halbach murder.
Mr. James Kirby has conducted experiments that refute the State's theory that Ms. Halbach's electronic components were burned in Mr. Avery's burn barrel. Mr. James Kirby has investigated Mr. Avery's garage and participated in experiments producing information that was provided to Mr. Haag and Dr. Palenik, current post-conviction counsel's ballistic and trace evidence experts, respectively. Mr. Steven Kirby has interviewed Scott Bloedorn ("Mr. Bloedorn"), who inadvertently mentioned another suspect. ...
Dr. Blum will offer the opinion that the injury pattern on one potential suspect's hands is consistent with fingernail scratches that were inflicted during the timeframe of Ms. Halbach's murder. ...
Mr. Gershman is one of the nation's leading experts in prosecutorial misconduct. He has authored numerous articles and a book on prosecutorial misconduct. He is a former Manhattan prosecutor and current professor of law at Pace University. He has identified the ongoing ethical and Constitutional violations committed by prosecutor Kenneth Kratz before, during, and after Mr. Avery's trial. ...
Dr. Farwell has testified in court as an expert witness on Brain Fingerprinting. He has conducted research on Brain Fingerprinting at the FBI, the CIA, and the US Navy. TIME magazine named him one of the TIME 100: The Next Wave, the top innovators of this century who may be "the Picassos or Einsteins of the 21st Century." Brain Fingerprinting has been used in wrongful conviction cases and worldwide by different intelligence agencies. Dr. Farwell has conducted extensive brain fingerprint testing on Mr. Avery. He will offer his opinion, with a statistical confidence of 99.9 percent, "that Mr. Avery does not know certain specific details about the attack on Ms. Halbach. This salient crime-relevant information, which was experienced by the perpetrator when he committed the crime, is not stored in Mr. Avery's brain." The opinions of all of these experts, combined with the new investigation conducted by current post-conviction counsel's investigators, so strongly undermines confidence in Mr. Avery's verdict that justice demands that his conviction be vacated. ...
THE STATE'S TIMELINE AND NARRATIVE
Mr. Avery Was the Last Person to See Ms. Halbach Alive
According to Mr. Kratz, the only reason that law enforcement focused exclusively on Mr. Avery, almost immediately, was because Mr. Avery was the" last person to see [Ms. Halbach]." (TT:3/14:51). Mr. Kratz described a timeline of Mr. Avery's and Ms. Halbach's alleged activities on October 31, 2005, in an attempt to link Mr. Avery to the murder and mutilation of Ms. Halbach:
a. 8:12 a.m.: Mr. Avery called AutoTrader to set up a photo shoot appointment of his sister Barb Janda's ("Barb") Plymouth van. Mr. Kratz argued that Mr. Avery was using a pseudonym by giving AutoTrader the name "B. Janda." (TT: 3/14:82).
b. 9:46 a.m.: A voicemail from Dawn Pliszka ("Ms. Pliszka"), an AutoTrader receptionist, to Ms. Halbach, informed her of the B. Janda appointment and told her the phone number and address that was left.
c. 11:43 a.m.: Ms. Halbach called the number left by Mr. Avery and left a message on Barb's answering machine. Detective Dave Remiker ("Det. Remiker") testified that he searched Barb's trailer and came across a voicemail from Ms. Halbach saying she did not know the address and that she would arrive around 2:00 p.m. or a little later. (TT:3/14:86).
d. 1:30 p.m.: Steve Schmitz ("Mr. Schmitz") testified that Ms. Halbach was at his property to take a photograph while wearing a light colored or white shirt, waist length jacket, and jeans. (TT:3/14:88).
e. 2:24 and 2:35 p.m.: Mr. Kratz contended that Mr. Avery placed two calls to Ms. Halbach using the *67 feature, which prevents the called party from seeing who was calling, before her arrival. (TT:2/12:123).
f. 2:27 p.m.: A call between Ms. Pliszka and Ms. Halbach in which Ms. Halbach told Ms. Pliszka she was on her way to the Avery property. (TT:3/14:86, 89).
g. 2:30-2:45 p.m.: Barb's son Bobby Dassey ("Bobby") testified that he saw Ms. Halbach finishing her photo shoot of the Janda van and walking toward Mr. Avery's trailer. After taking a shower and leaving the Janda trailer, Bobby saw Ms. Halbach's RAV-4 parked next to Barb's Plymouth van that she had photographed. Bobby testified that he did not see Ms. Halbach. Mr. Kratz argued that because a photo shoot only takes five to ten minutes, Ms. Halbach should have left before Bobby got out of the shower. (TT:3/14:91-92).
h. 2:41 p.m.: A voicemail was received by Ms. Halbach's phone but was never retrieved. (TT:3/14:90).
i. 3:30-3:45 p.m.: Another of Barb's sons, Blaine Dassey ("Blaine"), testified that he remembered seeing Mr. Avery place a white plastic bag in his burn barrel. (TT:3/14:67, 90).
j. 4:35 p.m.: Mr. Avery placed an "alibi call" to Ms. Halbach's phone. (TT:3/14:93). Mr. Kratz claimed by this time, Mr. Avery had disposed of Ms. Halbach's phone in his burn barrel and had burned it. (TT:3/14:93). Mr. Avery had the foresight to call Ms. Halbach's phone so it would look like he was actually trying to reach her. (TT:3/14:93-94).
k. Around Dusk (approximately 5:20 p.m.): Mr. Fabian testified that he saw smoke and smelled plastic being burned in Mr. Avery's burn barrel. (TT:2/27:114-16).
l. 7:00-7:30 p.m.: Scott Tadych ("Mr. Tadych") testified that the fire behind Mr. Avery's garage was already burning and had flames reaching above the roof of the garage. Mr. Kratz claimed that Ms. Halbach had been killed by this time and Mr. Avery was then in the process of mutilating and burning her body. (TT:3/14:95).
m. 11:00 p.m. Blaine testified that he saw a large fire behind Mr. Avery's trailer. (TT:2/27:70- 71 ). ...
TERESA HALBACH WAS NOT KILLED BY TWO GUNSHOTS TO HEAD
Two Gunshots Caused the Death of the Victim
20. The State's forensic anthropology expert, Leslie Eisenberg ("Dr. Eisenberg"), claimed that the cause of Ms. Halbach's death was two gunshot wounds to her head that were "pre-burning." The State relied upon the testimony of Dr. Eisenberg, Kenneth Olson ("Mr. Olson"), and Dr. Jeffrey Jentzen ("Dr. Jentzen") to establish that the manner of death was a homicide. (TT:3/14:127-129).
Mr. Avery's Garage Had Room/or a Body
21. Mr. Kratz also relied on Blaine's testimony that one of Mr. Avery's vehicles, a Suzuki Samurai, and his snowmobile were not inside Mr. Avery's garage on October 31, 2005. (TT:3/14:67). Therefore, according to Mr. Kratz, Mr. Avery could have placed "something else" presumably a body, in his garage on October 31, 2005. (TT:3/14:67). ...
Ms. Halbach's DNA on Damaged Bullet (Item FL)
23. According to Mr. Kratz, the damaged bullet found under the air compressor in Mr. Avery's garage was subsequently found to have Ms. Halbach's DNA on it. (TT:3/14:79). Mr. Kratz stated, "Teresa Halbach is killed. She's laying down. She's shot twice, once in the left side of her head, once in the back of her head, or I guess I should more accurately say she's shot at least twice. Because two bullets were found, two entrance wounds were found to her head." (TT:3/14:98). Mr. Kratz explained that WSCL DNA analyst Sherry Culhane's ("Ms. Culhane") contamination of the control sample with her own DNA, during the testing process at the WSCL, did not diminish the results of Ms. Culhane's DNA comparison and subsequent identification of Ms. Halbach's DNA. (TT:3/14:114). Mr. Kratz argued that Ms. Culhane could not have inadvertently transferred Ms. Halbach's DNA from a "sealed envelope" onto the damaged bullet. (TT:3/15:88). Mr. Kratz stated that the WSCL contamination log showed only 89 contaminated cases out of 50,000 cases. (TT:3/15:94 ). ...
More Thorough Garage Search Done in March 2006
24. Mr. Kratz claimed that investigators searched the garage more thoroughly in March than they did in November, and for the first time removed the "junk" from the garage. (TT:3/14:79-80). The State's ballistics expert William Newhouse ("Mr. Newhouse") opined that the bullet containing Ms. Halbach's DNA and a casing were fired from the .22 caliber rifle Mr. Avery kept mounted above his bed. (TT:3/14:80). Mr. Newhouse testified that the ammunition found in Mr. Avery's bedroom was manufactured by the same manufacturer as the shell casings from his garage. (TT:3/14:80).
TERESA HALBACH'S BODY WAS NOT BURNED IN AVERY'S PIT
Primary Burn Site was Mr. Avery's Burn Pit
25. Mr. Kratz relied on evidence from the trial defense counsel's forensic anthropology expert, Dr. Scott Fairgrieve ("Dr. Fairgrieve"), to support the State's claim that Ms. Halbach's whole body was burned in one session in Mr. Avery's burn pit. The State pointed out that Dr. Fairgrieve testified that it would take between 1.5 and 2.5 hours to cremate a body at 1,600 degrees Fahrenheit. Mr. Kratz argued that Mr. Avery was able to achieve such a temperature by burning tires in his burn pit with the body. (TT:3/14:96). Mr. Kratz relied upon the testimony of Blaine and Mr. Tadych that the fire was burning from 7:30 p.m. or so until past 11:00 p.m., giving Mr. Avery "plenty of time" to cremate Ms. Halbach's body. (TT:3/14:96).
26. Mr. Kratz argued that the burn pit bones were" intertwined or mixed" in with the steel belt from the tires, and that was Mr. Kratz's strongest evidence that the burn pit was the primary burn site. (TT:3/14:97). Mr. Kratz explained that Mr. Avery's "vicious" dog, Bear, delayed the discovery of the bones on November 8, 2005, by intimidating the scent tracking dogs and their handlers. (TT:3/14:97).
27. Mr. Kratz admitted that WSCL analyst John Ertl ("Mr. Ertl") began recovering bones from the burn pit on November 8 using a shovel. (TT:3/14:98). Mr. Kratz claimed that a shovel was used by Mr. Avery to dismantle Ms. Halbach's body as it burned. (TT:3/14:98-99). ...
To support the identification of Ms. Halbach as the cremains in Mr. Avery's burn pit, Mr. Kratz relied upon the testimony of forensic dentist Dr. Donald Simley ("Dr. Simley"), who could not positively identify the only tooth recovered as belonging to Ms. Halbach, but testified that the identification "was as close to a positive match" as one could get, given that there was only one tooth available to be identified. (TT:3/14:102). Mr. Kratz cited the testimony of Ms. Culhane, who claimed she was able to identify a partial DNA profile of Ms. Halbach from one piece of bone and tissue recovered from Mr. Avery's burn pit. (TT:3/14:102-103). ...
Mr. Kratz showed the jury an animation image of a human skeleton and told them that at least fragments of each bone were recovered. (TT:3/14:105).
33. Mr. Kratz admitted in its rebuttal that "bones were moved in this case." (TT:3/15:75). Mr. Kratz argued that Mr. Avery "moved the big bones into his sister's burn barrel to direct attention away from himself." (TT:3/15:76).
34. In the closing, Mr. Kratz stated that he would take "20 seconds" to talk about the bones in the Manitowoc County pit. He said that these bones were "possibly human" so "it means that we don't know what it is" and neither did Dr. Eisenberg or Dr. Fairgrieve. (TT:3/15:78). ...
THE KEY WAS PLANTED
Mr. Kratz argued that even if the key was planted, as trial defense counsel claimed, the jury should "set the key aside" because there is "enough other evidence of Mr. Avery's guilt" and "that key, in the big picture, in the big scheme of things here, means very little." (TT:3/15:64). ...
LATENT FINGERPRINTS AND BLOOD FROM THE BATHROOM
Latent Prints on Car Were Not Suitable for Identification
39. Mr. Kratz pointed out that the eight latent fingerprints lifted from Ms. Halbach's vehicle by WSCL analyst Michael Riddle ("Mr. Riddle") "were not suitable for identification." (TT:3/15:82).
Mr. Avery's Blood from his Bathroom Could Not have been Planted in Victim's Vehicle
40. Mr. Kratz argued that the blood from Mr. Avery's bathroom could not have been planted in Mr. Avery's vehicle because that blood was collected by Det. Remiker and Sgt. Tyson on November 5, 2005, around 10:00-11:00 p.m. and the SUV was already enclosed and locked in a trailer on its way to the WSCL in Madison. (TT:3/15:87). ...
TERESA HALBACH WAS NOT KILLED IN THE GARAGE
State's Theory of Murder, Mutilation of Body, and Concealment of Vehicle
41. To combat the undisputed fact that none of Ms. Halbach's blood was found in Mr. Avery's trailer, Mr. Kratz claimed that it was the AutoTrader Magazine and bill of sale that linked Ms. Halbach to Mr. Avery's trailer. Mr. Kratz asserted, "she was in the trailer but she was not killed in that trailer." (TT:3/15:93). Mr. Kratz repeatedly stated that Ms. Halbach was "killed in Steven Avery's garage." (TT:3/15:97).
42. Mr. Kratz claimed that Ms. Halbach's vehicle was backed into Mr. Avery's garage. (TT:3/15:98). Ms. Halbach was killed by two gunshot wounds, one to the left side of her head and one to the back of her head, while she was lying down on the garage floor. (TT:3/15:98). Dr. Eisenberg described two entrance wounds to Ms. Halbach's head but no exit wounds. There were two damaged bullets eventually found on Mr. Avery's garage floor. (TT:3/15:98). Mr. Kratz relied upon Dr. Eisenberg, who testified that the defect in the parietal bone, above the left ear, showed the characteristic sign of an entrance bullet wound, and a second defect in the occipital region shows Ms. Halbach was also shot in the back of the head with a .22 caliber gun. (TT:3/14:128). Additionally, Mr. Kratz relied upon Mr. Olson, the State's trace metal expert, who testified that x-rays of the skull defects in the parietal region showed particles of lead. (TT:3/14: 128).
43. Mr. Kratz contended that Mr. Avery threw Ms. Halbach in the back of the cargo area of her own RAV-4 and, as he did so, blood from her hair spattered on the inside of the rear cargo door. (TT:3/15:99). Ms. Halbach landed diagonally in the back of the SUV and left a hair imprint on the side panel of the interior of the rear cargo area. (TT:3/15:99).
44. According to Mr. Kratz, Mr. Avery had to act quickly because "he [did not] know if the police [were] coming." (TT:3/15:100). According to Mr. Kratz, Mr. Avery burned Ms. Halbach's electronics on October 31, 2005, at 3:45 p.m., moved the RAV-4, then removed the license plates. (TT:3/15:77-78) ...
Mr. Kratz contended that by 7:30 p.m. on October 31, 2005, there was already a "big fire in the back." Mr. Kratz claimed that Mr. Avery completely burned the body in his burn pit and moved some of the bones into his sister Barb's burn barrel. (TT:3/15:98-100; TT:3/15:76-77) ...
THE CASE AS PRESENTED BY TRIAL DEFENSE COUNSEL
Mr. Avery was represented by retained attorneys Dean Strang and Jerome Buting. Trial defense counsel presented seven witnesses, two of whom were qualified as experts and one of whom was the prosecution's witness, Inv. Wiegert. ...
INVESTIGATOR BIAS
Because of the media attention he received after his 2003 release from prison and due to his lawsuit against Manitowoc County, Mr. Avery received more attention than another person might have. (TT:3/14:133). According to trial defense counsel, MCSD officers wanted to believe that Mr. Avery was guilty and therefore had an investigative bias that was exploited by the real killer. (TT:3/14: 133). Trial defense counsel stated that when someone is framed, there is a lack of evidence and the jurors are entitled to draw reasonable inferences from this lack of evidence. (TT:3/14: 135).
Partial Skeletal Remains Found in Mr. Avery's Burn Pit
50. According to trial defense counsel, "the most damning piece of evidence in the case" was that Ms. Halbach's remains were found in the burn pit outside of Mr. Avery's garage and trailer. Trial defense counsel noted Dr. Eisenberg's testimony that only 40 percent of Ms. Halbach's skeletal remains were recovered, so 60 percent of Ms. Halbach's bones were missing. No expert testified at trial that the other 60 percent of her remains were burned up or consumed by the fire. (TT:3/14:136-137). Trial defense counsel argued that while five of six rivets from a pair of Daisy Fuentes jeans were found in Mr. Avery's burn pit, the button that closed the waist of the jeans was never located even though magnets and sieves were used. (TT:3/14:137). Trial defense counsel pointed out that Ms. Halbach's house and work keys were never found. (TT:3/14: 137). ...
Bones in Mr. Avery's Burn Pit were Moved
51. Trial defense counsel claimed that "all the experts agree these bones were moved," but Mr. Kratz had failed to explain "how that happened." (TT:3/14: 137-38). While Mr. Kratz presented evidence of the cause and manner of death, there was no evidence about how or where Ms. Halbach was killed. (TT:3/14: 138). Trial defense counsel claimed that the bones were found in a burn barrel belonging to Barb's family, located 150 feet away from Mr. Avery's burn pit, and there was a third site where "suspected human bones" were found in the Manitowoc County pit adjacent to the Radandt Pit. (TT:3/14:139). Trial defense counsel criticized the State's investigators for not taking photographs of the bones found in the Manitowoc County pit upon their discovery. (TT:3/14: 140).
52. Trial defense counsel stipulated to the FBI doing mitochondrial typing of the pelvic bone and agreed with the FBI findings that nothing could be determined from these bones. However, trial defense counsel pointed out that Dr. Eisenberg agreed that the bones from all 3 burn sites were burned to the same degree. According to trial defense counsel, it was clear that the bones were moved, but the State's theory did not account for their removal. (TT:3/14:138-39).
53. Trial defense counsel claimed that Dr. Eisenberg was not able to definitively answer the question of whether the burn pit was the original burn site. (TT:3/14:143). Dr. Eisenberg testified that the burn pit was probably the primary burn site because in it were numerous small, fragile bones that one would have expected to break if moved. However, trial defense counsel pointed out that Dr. Fairgrieve testified that in his experience, small bones usually wind up at the secondary site, and that the site where the majority of bones are recovered is usually the secondary site to which bones are transported. (TT:3/14: 143). Due to the manner of excavation, Dr. Fairgrieve could not offer an opinion as to whether the burn pit behind Mr. Avery's garage was the primary site. (TT:3/14:144). Trial defense counsel relied upon Dr. Fairgrieve's opinion that the State should have had a forensic anthropologist come to Mr. Avery's burn pit to supervise the original excavation of bones.
54. Trial defense counsel claimed that Dr. Fairgrieve said that at the original burn site, the bones would have some anatomical connection to each other, but if the bones were moved, they would "fall apart and they would be rearranged." (TT:3/14:144).
55. Trial defense counsel offered the jury the hypothesis that Ms. Halbach was burned in the Manitowoc County pit, and that a Janda burn barrel was used to transport her remains. Trial defense counsel claimed that because the burn barrels were heavy and were transported in the dark, bones were inadvertently left in the barrel. (TT:3/14:146-47).
56. Trial defense counsel pointed out that Bobby testified that Barb's residence only had 3 barrels, yet 4 barrels were found. Trial defense counsel contended that the fourth barrel was used to transport the bones from the original burn site. (TT:3/14: 148). Trial defense counsel claimed, "if that body was burned elsewhere and then moved and dumped on Mr. Avery's burn pit, then Steven Avery is not guilty, plain and simple. Because no one would burn a body somewhere else and then move the remains and dump them in your own backyard. No one would do that." (TT:3/14:148-149).
Trial Defense Counsel's Theories About the Blood, Bullets, and Key
57. Trial defense counsel also made the following arguments to the jury in their closing about the blood, bullets and key:
a. According to the State's theory, Mr. Avery was actively bleeding in Ms. Halbach's RAV-4. However, Mr. Riddle did not identify any of Mr. Avery's fingerprints in the RAV-4. If Mr. Avery was not wearing gloves, it would have been reasonable to expect him to leave behind fingerprints. If Mr. Avery was wearing gloves, it would have been unreasonable to expect him to leave behind blood. (TT:3/14: 150-51 ).
b. Regarding fingerprints found on the RAV-4 by Mr. Riddle, there were 8 unidentified prints. Standards from Lt. Lenk and Sgt. Colborn were not compared to the 8 unidentified prints. (TT:3/14: 151-52).
c. None of the investigators saw blood stains in the RAV-4 while it was at the scene. It was not until the RAV-4 was transported and processed at the WSCL that the blood stains were noticed. Trial defense counsel specifically discussed DCI Agent Thomas Fassbender’s ("Agent Fassbender") and Mr. Ertl's testimony about shining a flashlight into the RAV-4 and how implausible it was that they would not look for a key in the ignition and not notice the nearby stain. (TT:3/14:153). Trial defense counsel referred to the blood stain by the ignition as a "rather peculiar looking bloodstain that looks sort of like you might get if you take a Q-tip and dab it." (TT:3/14:153).
d. The most obvious lack of evidence was the lack of any trace of Ms. Halbach in Mr. Avery's trailer. Further, there were no rope fibers on the headboard and no indications that anyone was restrained there. (TT:3/14:153-54). Trial defense counsel noted that Mr. Kratz was now alleging that the crime took place in the garage, but in pre-trial publicity Mr. Kratz said Ms. Halbach was killed in the bedroom. (TT:3/14: 154-55).
e. If Ms. Halbach was shot in the garage, her blood should have been found in the garage. (TT:3/14:159). Further, Mr. Avery's blood was found in the garage, which was inconsistent with the theory that Mr. Avery cleaned up Ms. Halbach's blood in the garage. (TT:3/14:160). Trial defense counsel claimed that if Mr. Avery had cleaned up blood in the garage, it would be expected that he would have also picked up the shell casings. (TT:3/14: 161).
f. Trial defense counsel argued that had Mr. Avery killed Ms. Halbach he would not have put her car key in his home unless he wanted to drive the RAV-4, which was inconsistent with the fact that Mr. Avery allegedly disconnected a battery cable. (TT:3/14:162-63).
g. Mr. Avery was approached by news media and law enforcement on November 3 and 4, 2005, so he knew that he was a person of interest and would not have kept Ms. Halbach's car key in his bedroom. (TT:3/14:163). Further, the key was not found until the seventh search of the trailer on November 8, 2005, and after hours spent searching Mr. Avery's bedroom. (TT:3/14:163). Dep. Kucharski testified that he was there to search the bedroom, not to watch Lt. Lenk and Sgt. Colborn. (TT:3/14: 165-66).
h. Trial defense counsel argued that it was impossible for the key to have landed in the position it did if it had fallen out of the back of the bookcase. (TT:3/14: 166-67). Trial defense counsel pointed out that there were no pictures of the bookcase because they "don't want you experimenting with that bookcase and this key, because they know you will see that it is incredibly improbable" that the key, the ring, the cloth fob, or the plastic clip would not get "hung up on anything." (TT:3/14:168). Trial defense counsel noted it was unusual that there was no mixture of DNA on the key and that there was no blood observed on the key despite the State's theory that Mr. Avery was bleeding from his right hand. Trial defense counsel also emphasized that Mr. Avery's fingerprints were not found on the key. (TT:3/14:169-170).
i. Trial defense counsel suggested that the DNA on the key was planted from Mr. Avery's toothbrush. (TT:3/14:170). Trial defense counsel suggested that further evidence that Mr. Avery's DNA was planted on Ms. Halbach's key was that only Mr. Avery's DNA was found, as if someone had wiped clean her DNA and placed his on the key. (TT:3/14: 172). Trial defense counsel claimed that if Mr. Kratz had nothing to hide regarding the key and the bookcase, he would have brought the bookcase to court; Mr. Kratz responded that the "defense has just as much right to bring that [bookcase] up here as Mr. Kratz did." (TT:3/15:84-85). Neither side brought the bookcase to court.
j. Trial defense counsel pointed out that Mr. Kratz had misrepresented to the jury, in his opening statement, that Mr. Avery's blood was on the rear of the vehicle on the tailgate; no proof was presented at trial that Mr. Avery's blood was found at that location. (TT:3/14:169). Trial defense counsel also claimed that there was not one microliter of blood in the RAV-4 by relying upon his own visual observation of the small amounts of blood in the vehicle. (TT:3/14: 173). Trial defense counsel claimed you "can't even find any blood, can't see any blood" on the CD case. (TT:3/14:173). ...
61. According to trial defense counsel, the opportunity to plant blood in the RAV-4 occurred on November 5, prior to MCSD turning the investigation over to CCSD, and that MCSD kept their officers in control of the RAV-4 for four hours. Trial defense counsel stated that the car was not secured until 2:25 p.m., when Agent Fassbender arrived and started a log. (TT:3/14: 180). Trial defense counsel also argued that the tarp placed over the RAV-4 was like a tent with an opening that would allow someone to plant evidence. (TT:3/14: 181).
62. Trial defense counsel referenced Pam's testimony that she and her daughter Nikole Sturm ("Nikole") did not know with certainty that the rear cargo door of the RAV-4 was locked ...
Trial defense counsel claimed that a police officer would know how to open a locked car. (TT:3/14:183). Trial defense counsel also stated that it is not entirely clear that Ms. Halbach's vehicle was locked when it arrived at the WSCL. (TT:3/14:183). Trial defense counsel asserted that it would only require someone to open two of the vehicle's doors to plant all of the evidence. (TT:3/14:183). ...
Damaged Bullet (Item FL) Not Linked to Shell Casings Found in the Garage
65. On March 1, 2006, a damaged bullet was located by the main garage door in plain sight. The second damaged bullet, found on March 2, 2006, was found under the air compressor. (STATE 5651; TT:2/12:102).
66. Trial defense counsel claimed that Rollie Johnson ("Mr. Johnson") fired .22 caliber firearms on the property around the garage and the bullet remnants were never picked up. (TT:3/8:161-162). Mr. Johnson owned the .22 caliber rifle that the State claimed was the murder weapon and was hanging above Mr. Avery's bed. Trial defense counsel argued that the State's expert, Mr. Newhouse, identified the shell casings as coming from Mr. Johnson's gun, but he could not say that the damaged bullet (Item FL) came from any of the recovered shell casings. None of Mr. Avery's fingerprints were on the shell casings. (TT: 3/14:187-88).
67. According to trial defense counsel, Mr. Newhouse testified that he was unable to match the second damaged bullet (identified as Item FK) to Mr. Johnson's gun, and testified that the bullet could have come from a pistol with a different brand name. Therefore, Mr. Newhouse could not say that the second bullet (Item FK) had any connection to the case. (TT: 3/14: 188-89).
68. Trial defense counsel compared Mr. Newhouse's testimony to discredited hair comparison analysis. Trial defense counsel also criticized the State and Mr. Newhouse for not showing photos of the comparison of the bullets side-by-side. Trial defense counsel claimed that he could see a lot of differences between "those two fields of view." Even if Item FL was fired from Mr. Johnson's gun, it did not mean that it was connected to the case according to trial defense counsel. Trial defense counsel also noted that Mr. Newhouse was not asked to determine if there was copper present in his examination of the damaged bullet because both bullets were copper-coated. (TT:3/14:189-91).
Ms. Culhane's Bias Against Mr. Avery
69. Trial defense counsel pointed out that, although Ms. Culhane helped to eventually exonerate Mr. Avery for the rape charge in 2003, she also helped to convict him of that rape in 1985. (TT:3/14:192).
70. Trial defense counsel referenced a phone message from Agent Fassbender to Ms. Culhane directing her "to try to put [Ms. Halbach] in [Mr. Avery's] house or garage." (Trial Exhibit 341). Trial defense counsel told the jury that "this is not blind testing." (TT:3/14:192). According to trial defense counsel, at the point that Ms. Culhane discovered Ms. Halbach's DNA on Item FL, she must have been feeling pressure because this was "the biggest case of her career" and 180 items had been submitted to her laboratory for analysis and she "still ha[d] not found" one item that linked Ms. Halbach to Mr. Avery's house or garage. (TT:3/14:193). Trial defense counsel suggested that because Ms. Culhane had contaminated the control sample for Item FL, she may also have transferred Ms. Halbach's DNA onto Item FL. (TT:3/14:194). Trial defense counsel stated that Ms. Culhane had Ms. Halbach's DNA from the RAV-4 cargo area "sitting right there on her bench" so "you can't tell how and whether Teresa Halbach's DNA ended up there in the same extraction mechanism." (TT:3/14:195). Trial defense counsel stressed that, of all of these other items, Item FL is "the only thing that's ever come up with Teresa Halbach's DNA." (TT:3/14:196). ...
Dr. LeBeau's Opinion is Flawed
75. Trial defense counsel referred in their closing to the testimony of Dr. LeBeau regarding the testing of the ethylenediaminetetraacetic acid (EDTA) tube and RAV-4 swabs as deserving "the award for the most absurd expert opinion" in this case. Trial defense counsel disputed Dr. LeBeau's opinion that just because 3 of the items tested did not have EDTA, the 3 untested items also did not have EDTA. (TT:3/14:201).
76. Trial defense counsel pointed out that Mr. Avery's expert, Janine Arvizu ("Ms. Arvizu"), correctly stated that Dr. LeBeau's experiment did not account for the absence of a limit of detection, his protocol was rushed, and no one had attempted such an EDTA experiment in ten years. (TT:3/14:203). Mr. Strang corrected his co-counsel's assertion that Ms. Arvizu was a doctor, as Ms. Arvizu had not actually completed her dissertation. (TT:3/15:40).
The Defense Timeline Placed Ms. Halbach at the Avery Property at 3:30-3:45 p.m.
77. Trial defense counsel disputed the testimony of Bobby that he saw Ms. Halbach at 2:45 p.m. because Bobby "[had] no good way of verifying the time." (TT:3/14:205).
78. Trial defense counsel argued that Bobby and Mr. Tadych were each other's alibis, no one saw Bobby go hunting in the woods, and the time when Bobby claims he left -- 5:00 p.m. -- makes no sense for deer hunting. (TT:3/14:206). They claimed that Mr. Tadych's testimony that he knew precisely what time it was [was] contrived and appeared to be the result of collaborating with Bobby to come up with their story. (TT:3/14:205-206).
79. Trial defense counsel relied on the testimony of Ms. Buchner, the bus driver, that she saw a woman taking pictures of a van on the Avery property when she dropped Brendan and Blaine off at 3:30-3:40 p.m. Trial defense counsel admitted that Ms. Buchner was uncertain of the date, whether it was October 31 or November 1 or 2. (TT:3/14:207).
80. Trial defense counsel also cited the testimony of Mr. Leurquin, a propane driver, who believed he saw a green SUV around the same time Ms. Buchner described seeing the woman taking the photographs. (TT:3/14:208).
Other Witnesses's Suspicious
81. Trial defense counsel suggested that no one checked out Mr. Tadych's story that he allegedly visited his mother at the hospital on October 31, 2005, or that he knew he saw a bonfire behind Mr. Avery's garage at 7:45 p.m. because he wanted to get home to watch Prison Break at 8:00 p.m. (TT:3/14:209).
82. Trial defense counsel pointed out that when Mr. Tadych was first interviewed by the police, he never mentioned a bonfire behind Mr. Avery's garage, much less a bonfire with "flames to the top of the roof ' as he testified to at trial. (TT:3/15:44).
83. Bobby's testimony was contradicted by Blaine, who testified that Bobby was asleep when Blaine arrived at home between 3:30 p.m. and 3:45 p.m. on October 31, 2005 (TT:2/27:85-86); therefore, Bobby could not have seen Ms. Halbach at 3:45 p.m.
84. Trial defense counsel also pointed out that George Zipperer ("Mr. Zipperer") was belligerent while Mr. Avery was cooperative, Mr. Hillegas had no alibi, Mr. Bloedorn did not report Ms. Halbach missing for four days, Bradley Czech ("Mr. Czech") provided no alibi, and Thomas Pearce ("Mr. Pearce") also did not report her missing for four days. (TT:3/14:210-11).
85. Trial defense counsel also pointed out that Ms. Halbach attended a Halloween party in Green Bay on Saturday night but no one came forward saying they were with her on Saturday night. (TT:3/14:212).
State's Expert Testimony that Voicemail Deletions Require Use of Password
86. Trial defense counsel argued that the State's expert Anthony Zimmerman ("Mr. Zimmerman") confirmed that the 18 messages discovered in Ms. Halbach's voicemail (Trial Exhibit 372) did not constitute a full mailbox. Trial defense counsel claimed that Mr. Zimmerman admitted that if Ms. Halbach's voicemail was indicating that the mailbox was full at a certain point, then this meant that messages had been erased by someone and that that person had to have known Ms. Halbach's password. (TT:3/14:213). ...
Sgt. Colborn Called-in Ms. Halbach's Plates on November 3 or November 4, 2005
88. Trial defense counsel suggested that Sgt. Colborn's call to dispatch regarding the license plate check on Ms. Halbach's car was made either on November 3 or November 4, 2005, but more likely on November 4 because Sgt. Colborn called from his cell phone instead of his squad car radio. (TT:3/15:31-32). Trial defense counsel argued that the call was from November 4, 2005, because that was Sgt. Colborn's day off and he would not have been in his squad car. (TT:3/15:32).
89. In their closing argument, trial defense counsel played both the Sgt. Colborn dispatch call tape and the MCSD Detective Dennis Jacobs ("Det. Jacobs") tape from November 5, 2005, at 11:30 a.m. after Ms. Halbach's vehicle was discovered. (TT:3/15:35-36). On the tape, Det. Jacobs asked if Mr. Avery was "in custody" yet. (TT:3/15:36).
90. Trial defense counsel contended that if Ms. Culhane had followed the WSCL protocol in testing the damaged bullet found on March 2, 2006, she would not have been able to offer the opinion that Ms. Halbach's DNA was found on the damaged bullet (Item FL) because it was contaminated. (TT:3/15:37-38). Ms. Culhane deviated from protocol for the first time in 23 years. (TT:3/15:37).
91. Trial defense counsel claimed that the FBI EDTA protocol presented by the State was flawed because it was put together in "a couple of weeks" and it could not detect the absence of EDTA. Trial defense counsel did not provide a scientific explanation as to why the EDTA could not be detected, but instead provided analogies to a telephone ringing and smelling apple pie. (TT:3/15:40-42).
92. Trial defense counsel, in arguing that the evidence was planted, offered the rationale that the investigators were not "doing it to frame an inncent man;" rather, they were trying "to ensure the conviction of someone they ha[d] decided [was] guilty." (TT:3/15:46). ...
97. Trial defense counsel tried to combat the State's 14 experts merely by using cross-examination without their own experts in blood spatter, DNA, forensic pathology, ballistics, and forensic fire analysis. Trial defense counsel's forensic anthropologist was incompetent for failing to do a microscopic analysis of CCSD Property Tag No. 8675, the suspected human pelvic bones found in the Manitowoc County gravel pit ("Manitowoc Pit") or a histological slide analysis of these bones to determine with certainty if they were human. If a determination had been made that these bones were human and linked to Ms. Halbach, trial defense counsel could have conclusively demonstrated that Ms. Halbach's other bones had been planted in Mr. Avery's burn pit.
98. Trial defense counsel failed to thoroughly investigate other suspects and instead chose a scattergun approach of simply naming individuals without meeting the requirements of State v. Denny, 357 N.W. 2d 12, 120 Wis. 2d 614 (Wis. Ct. App. 1984). Trial defense counsel also failed to utilize available evidence which confirmed that the vehicle was moved onto the Avery property after Ms. Halbach was killed elsewhere. ...
THE 1996 BLOOD VIAL
Failure of Trial Defense Counsel, Because of Not Having a Blood Spatter Expert, to Recognize 1996 Blood Vial Was Not the Source of Blood in the RAV-4
139. Mr. Avery's trial defense counsel were unaware of the EDTA preserved whole blood sample stored in the Manitowoc County Clerk of Court's office until the summer of 2006. Prior to that time, trial defense counsel failed to develop a credible explanation for the presence of Mr. Avery's blood in the RAV-4. Trial defense counsel waited until December 2006 to present a motion requesting that they be allowed to examine the blood vial. (Motion for Order Allowing Access to Prior Court File, attached and incorporated herein as P-C Exhibit 17).
140. Mr. Avery's trial defense counsel relied exclusively upon a frame-up theory of defense, correctly arguing that all evidence inculpating Mr. Avery was fabricated. However, they incorrectly argued that Mr. Avery's found in Ms. Halbach's vehicle was planted by law enforcement and that it came from a 1996 blood vial held in the Manitowoc County Clerk of Courts office. (TT:3/14:177-81). Trial defense counsel represented to the jury that the seal of the 1996 blood vial package had been broken and resealed with a strip of Scotch tape. (TT:3/14: 177). Trial defense counsel would have been aware that this package was opened by members of the Wisconsin Innocence Project in 2002 to examine forensic evidence that could be tested. (12/11/16 Interview of former Manitowoc County District Attorney, Edward Fitzgerald ("12/11/06 Fitzgerald Interview"), attached and incorporated herein as P-C Exhibit 18, STATE 1_9950; 12/21/06 DCI report regarding review of Manitowoc County Clerk of records ("12/21/06 Records Review"), attached and incorporated herein as P-C Exhibit 19, STATE 2_1068). At that time, Mr. Avery's Wisconsin innocence Project attorneys broke the seal of the 1996 blood vial package, and resealed the enclosed box using only a strip of Scotch tape. (12/11/06 Fitzgerald Interview, P-C Exhibit 18, STATE 1_9951; 12/21/06 Records Review, P-C Exhibit 19, 2_1068-9). There was no credible proof presented to the jury establishing that Lt. Lenk and Sgt. Colborn accessed the Clerk of Court's file to obtain Mr. Avery's blood to plant it in the RAV-4.
141.Mr. Avery's trial defense counsel further inaccurately represented Lt. Lenk's knowledge of the 1996 blood vial to the jury. Trial defense counsel argued that Lt. Lenk had personal knowledge of the 1996 blood vial of Mr. Avery's blood in the Clerk of Court's office. (TT:2/21:31-35; TT:3/14:178-79). However, trial defense counsel failed to present evidence that proved, in any manner, that Lt. Lenk had knowledge of the 1996 blood vial. (TT:2/21: 18). Trial defense counsel relied on a transmittal form that showed that other evidence from Mr. Avery's 1985 case was sent to the WSCL for testing. Simply stated, there is no evidence that Lt. Lenk ever had possession of or even knew about the 1996 blood vial of Mr. Avery's blood stored in the Clerk of Court's office. Despite knowing that there was no provable connection between Lt. Lenk and the 1996 blood vial, trial defense counsel represented to the jury that Lt. Lenk must have inadvertently found the 1996 blood vial in examining the file. (TT:2/21:26-29). This argument was totally lacking in credibility because there was no corroborative evidence to support it.
142. The Court was aware that no provable connection existed between Lt. Lenk and the 1996 blood vial, but allowed the planting defense to proceed to the jury. (Order on State's Motion to Exclude Blood Vial Evidence, attached and incorporated herein as P-C Exhibit 20, p. 4).
143. Trial defense counsel was aware that the nurse who drew Mr. Avery's blood in 1996 created the needle hole in the blood vial when she deposited Mr. Avery's whole blood into the EDTA prepared tube. (Trial Defense Counsel's Statement on Planted Blood, attached and incorporated herein as P-C Exhibit 21, ~ 5). Trial defense counsel had no reason to believe that the hole in the top of the 1996 blood vial was created by anyone except this nurse.
144. Trial defense counsel's theory about the 1996 blood vial was carelessly constructed without corroboration. The blood vial theory was abandoned during the trial and it resulted in no viable theory being presented to the jury about trial defense counsel's claim that the blood in the RAV-4 was planted. Trial defense counsel lost credibility with the jury when it was unable to present any evidence that Mr. Avery's blood in the RAV-4 was planted.
145. Current post-conviction counsel's blood spatter expert has been able to demonstrate that all of Mr. Avery's blood in the RAV-4 was selectively planted and that the blood spatter on the rear cargo door was not the result of Ms. Halbach being thrown into the cargo area by her attacker as the State told the jury. (Affidavit of Stuart James, P-C Group Exhibit 16). The failure of trial defense counsel to have a viable theory supported by expert testimony explaining how Mr. Avery's blood was planted in Ms. Halbach's vehicle all but guaranteed his conviction and life sentence without parole.
THE KEY, AND AVERY'S DNA ON THE KEY, WAS PLANTED
148. The key was not present in the initial photographs of the bookcase and Mr. Avery's slippers. (Trial Exhibit 208; MHT:8/9:210; TT:2/20:130). During Sgt. Colborn's frenetic interaction with the bookcase, Lt. Lenk left the bedroom. (TT:2/20: 129-30). When Lt. Lenk returned, he noticed a Toyota key had suddenly appeared. (TT:2/21:12-13). Rather than being located where one would expect the key to have fallen behind the bookcase, based on Sgt. Colborn's actions, the key was lying on the northwest side of the bookcase on the carpet. (Trial Exhibit 210). Lt. Lenk provided the only explicit account of the slippers being moved (as shown in the comparison of Trial Exhibits 208 and 210). (TT:2/21:10-11). Prior to the key's discovery, Lt. Lenk reportedly picked the slippers up and set them back down after checking within and under them, while searching Mr. Avery's bedroom on November 8, 2005. (TT:2/21:10-11).
149. Neither side subpoenaed Mr. Avery's bookcase to the trial. Trial defense counsel's failure to have the bookcase at trial to demonstrate the impossibility of the State's story about the discovery of the key was a fatal error. A simple experiment with the bookcase and Toyota key would have conclusively demonstrated that the key was planted next to the bookcase by Sgt. Colborn and Lt. Lenk. Conclusive proof that this one piece of evidence was planted would have collapsed the State's house of fabricated evidence. Current post-conviction counsel had experiments performed with an identical bookcase ("experiment bookcase") an identical 1999 Toyota RAV-4 key on a blue fabric lanyard ("experiment key and lanyard") that demonstrates that Sgt. Colborn's and Lt. Lenk's testimony about the discovery of Ms. Halbach's key in Mr. Avery's bedroom is demonstrably false.
150. Current post-conviction counsel's law clerk conducted a bookcase experiment and produced the following results:
Failure of Trial Defense Counsel to Investigate and Demonstrate that Planted Toyota Key was a Sub-Key and Not a Master Key as Mr. Kratz Claimed
151. Mr. Kratz wanted the jury to believe that the key found in Mr. Avery's bedroom was the victim's everyday key because, if the key was a spare key, it is more likely that the key was planted by Sgt. Colborn and Lt. Lenk after it was obtained from the victim's residence by law enforcement. The 1999 Toyota RAV-4 manual clearly shows that the key recovered from Mr. Avery's bedroom was Ms. Halbach's spare or sub-key. Comparing evidence photos of the key found in Mr. Avery's bedroom (Trial Exhibits 219 and 316) with the 1999 Toyota RAV-4 manual, it is apparent that the key found in Mr. Avery's bedroom was a spare or sub-key and not Ms. Halbach's master key. The shape of the key discovered in Mr. Avery's bedroom matches the shape of the sub-key illustrated in the RAV-4 manual, whereas the shape of the master key illustrated in the manual is more square. (RAV-4 Manual, P-C Exhibit 1).
152. A photograph of Ms. Halbach standing in front of her RAV-4 was admitted as Trial Exhibit 5. In this photograph, Ms. Halbach is holding a ring of keys on a white lanyard. (Trial Exhibit 5). Her master key is readily observable because of its square shape. Additionally, Ms. Halbach's RAV-4 had electronic locks. (RAV-4 Manual, P-C Exhibit 1; Driver's Door Photos, P-C Group Exhibit 2, STATE 9788, 1_0209). Based upon the photograph of Ms. Halbach, it is clear that Ms. Halbach kept her key fob attached to her master vehicle key. There was no fob attached to the key found in Mr. Avery's bedroom on November 8, 2005. The master key to Ms. Halbach's vehicle, which did have electronic locks and a fob, was never located, nor was the white lanyard that was attached to the master key as seen in Trial Exhibit 5.
153. On November 4, 2005, news media crews filmed the interior of the house Ms. Halbach shared with Mr. Bloedorn. While interviewing Mr. Bloedorn in the kitchen, news media filmed what appeared to be the RAV-4 sub-key and blue lanyard, which was next to the kitchen sink. (November 4, 2005, WFRV Interview of Scott Bloedorn stills, attached and incorporated herein as P-C Group Exhibit 23). It is indisputable that the key that was found Mr. Avery's bedroom on November 8, 2005 was Ms. Halbach's sub-key with a blue lanyard attached. Trial defense counsel failed to demonstrate this simple undisputed fact to the jury by using Trial Exhibit 5 and the RAV-4 manual which was critical to the success of proving the sub-key and blue lanyard were planted. (RAV-4 Manual, P-C Exhibit 1). ...
Failure of Trial Defense Counsel to Present a DNA Expert to Establish that Mr. Avery's DNA Was Planted on the Sub-Key by Law Enforcement
157. Allegedly, Ms. Halbach's sub-key had Mr. Avery's complete DNA profile but not Ms. Halbach's. (TT:2/23:181-83; TT:2/26:103-4). Although no presumptive blood testing was done by the State which would establish whether the DNA came from blood, their expert nonetheless testified that Mr. Avery's blood from his cut finger had masked Ms. Halbach's DNA profile. (TT:2/26:96; TT:2/19:133).
158. Current post-conviction counsel's DNA expert, Dr. Reich, conducted experiments that demonstrate that the DNA on the sub-key was planted because the amount of DNA detected by the WSCL on the sub-key found in Mr. Avery's bedroom is of much greater quantity than the amount of DNA Mr. Avery deposited on an exemplar sub-key by holding it in his hand for 12 minutes as a part of Dr. Reich's experiment. (Affidavit of Steven Avery, P-C Exhibit 4). Specifically, Dr. Reich found that Mr. Avery deposited 10 times less DNA on the exemplar sub-key than what the WSCL detected on the sub-key recovered from Mr. Avery's bedroom. As illustrated by Dr. Reich's experiments, Mr. Avery could not deposit the amount of DNA identified on the sub-key by the WSCL simply by holding it in his hand. (Affidavit of Dr. Reich, P-C Group Exhibit 15, ~ 31). Because Dr. Reich's experiments have refuted the State's claim that the DNA on the sub-key came from Mr. Avery holding the key, the only remaining plausible explanation is that the DNA was planted on the key from another source of Mr. Avery's DNA.
159. New scientific source testing was performed on the exemplar sub-key to determine the source of the DNA. An experiment eliminated skin cells, rubbed from slippers identical to the ones photographed in Mr. Avery's bedroom on November 8, 2005, as the source of the DNA on the Toyota Key (Item C). The quantity of skin cells detected by Dr. Reich on the exemplar sub-key after it had been rubbed in worn slippers identical to Mr. Avery's, was not comparable to the quantity detected by Ms. Culhane on the key. Mr. Avery's toothbrush was taken by law enforcement, and current post-conviction counsel's DNA experts' experiments have shown that rubbing a toothbrush on a exemplar sub-key would produce a comparable quantity of DNA. Mr. Avery's toothbrush was taken by law enforcement from his bathroom but suspiciously was never logged into evidence. Mr. Avery, after reviewing a law enforcement photograph taken of his bathroom during one of the multiple searches, immediately noticed that his toothbrush was missing. Mr. Avery had not removed the toothbrush prior to leaving for Crivitz on November 5, 2005. The only plausible explanation for the missing toothbrush was that law enforcement removed the toothbrush but never logged it into evidence so that it could be rubbed on the sub-key of Ms. Halbach. (Affidavit of Steven Avery, P-C Exhibit 4; Affidavit of Dr. Reich. P-C Group Exhibit 15, r 37; Trial Exhibit 206).
AVERY'S DNA SAMPLES - THE GROIN SWAB WAS SWAPPED FOR THE HOOD LATCH SWAB
166. Two groin swabs were taken from Mr. Avery at Aurora Medical Center by a nurse on November 9, 2005. Mr. Avery was escorted by Inv. Wiegert to Aurora Medical Center at approximately 1:20 p.m. Agent Fassbender met Inv. Wiegert, who was escorting Mr. Avery for the examination. Mr. Avery was taken into an examination room. Present in the examination room were Faye Fritsch, RN and SANE Medical Director Laura Vogel-Schwartz, MD. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635). Towards the end of the examination, Nurse Fritsch took two swabs of Mr. Avery's groin area in direct contravention of the search warrant, which specifically restricted that DNA samples were to be taken from Mr. Avery's saliva and blood. There was no reference to groin swabs in the search warrant. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1643). Significantly, Nurse Fritsch's documentation of taking swabs from Mr. Avery excludes any mention of taking groin swabs. A well-qualified nurse following acceptable standards of charting would never fail to document taking the groin swabs unless she were instructed not to document taking the groin swabs by Agent Fassbender or Inv. Wiegert. (Forensic Evidence Checklist, attached and incorporated herein as P-C Exhibit 26, STATE 2875, 2877). Agent Fassbender and Inv. Wiegert "conferred and determined that the search warrant did not call for that type of exam. Inv. Wiegert immediately stopped Fritsch and the exam was concluded." Again, Nurse Fritsch would never have taken the groin swabs without being specifically instructed to do so by Agent Fassbender and Inv. Wiegert. Agent Fassbender and Inv. Wiegert's explanation that they did not realize that the search warrant did not call for taking groin swabs is not credible.
167. Furthermore, according to Agent Fassbender's report, Nurse Fritsch disposed of the groin swabs. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635). Agent Fassbender's report is not credible because Nurse Fritsch never mentions, in her charting, disposing of the groin swabs. Agent Fassbender's report directly contradicts Mr. Avery's account of this examination as described in his affidavit. Contrary to Agent Fassbender's report, Inv. Wiegert told Nurse Fritsch that he would discard the swabs while Agent Fassbender escorted Mr. Avery into a separate room to get his fingerprints. As Mr. Avery followed Agent Fassbender and Nurse Fritsch out of the examination room, Mr. Avery heard Inv. Wiegert tell Nurse Fritsch to give him the groin swabs, and Mr. Avery observed Inv. Wiegert walk to the examination room receptacle as if to discard the groin swabs. Mr. Avery observed that Inv. Wiegert's did not drop the groin swabs into the receptacle.(11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635; Affidavit of Steven Avery, P-C Exhibit 4).
168. Inv. Weigert, as an experienced investigator, would have known that taking groin swabs was not authorized by the search warrant, which permitted only the collection of saliva and blood samples. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1643). It is therefore reasonable to conclude, from this clear violation of Mr. Avery's Fourth Amendment rights, that Inv. Wiegert planned to use the illegally seized groin swabs from Mr. Avery to plant Mr. Avery's DNA on other crime scene evidence.
Hood Latch Story Fabricated by Inv. Wiegert and Agent Fassbender in Brendan's Confession
169. It was not until four months after Ms. Halbach's RAV-4 was analyzed by the WSCL in Madison that investigators became interested in the hood latch. The hood latch was first introduced by Agent Fassbender and Inv. Wiegert in their March 1, 2006, interrogation of Brendan. Agent Fassbender asked Brendan, "Did he, did he, did he go and look at the engine, did he raise the hood at all or anything like that? To do something to that car?" (Pages from March 1, 2006, interrogation of Brendan Dassey ("3/1 /06 Interrogation", attached and incorporated herein as P-C Exhibit 27, STATE 4674). In a subsequent interview, Brendan denied seeing Mr. Avery open the hood. (Pages from Ma y 13, 2006, interrogation of Brendan Dassey, "5/13/06 Interrogation"), attached and incorporated herein as P-C Exhibit 28, STATE 7300). In the May 13 interview, under pressure by Agent Fassbender and Inv. Wiegert, Brendan capitulated and changed his story to fit their narrative - that Mr. Avery opened the hood of Ms. Halbach's RAV-4.
Failure of Trial Defense Counsel to Investigate and Detect Hood Latch Swab Chain of Custody Fabrication Which Allowed Swab Substitution; Failure to Interview Mr. Avery about Groin Swabs, and Failure to Present DNA and Trace Evidence Experts
170. In an effort to corroborate Brendan's confession taken on March 1, Agent Fassbender and Inv. Wiegert ordered that the hood latch be swabbed for DNA evidence. On April 3, 2006, Agent Fassbender and Inv. Wiegert specifically directed Deputy Jeremy Hawkins ("Dep. Hawkins") and Sgt. Tyson to go into the storage shed where the RAV-4 was located to swab the hood latch, battery cables, and interior and exterior door handles. ( 4/3/06 CCSD report by Dep. Hawkins, attached and incorporated herein as P-C Exhibit 29, STATE 1_2145). At 19:37 hours, Sgt. Tyson swabbed the hood latch. Dep. Hawkins took photographs, including a photograph of the swab. (4/3/06 CCSD report by Dep. Hawkins, attached and incorporated herein as P-C Exhibit 30, STATE 1_2095-96).
171. The instructions Agent Fassbender and Inv. Wiegert gave Dep. Hawkins and Sgt. Tyson are inconsistent with a good faith effort to recover forensic evidence. If they really thought Mr. Avery had opened the hood and wanted to collect any possible DNA of his from the RAV-4, they should also have instructed Sgt. Tyson and Dep. Hawkins to swab the interior hood release lever and hood prop, which, by necessity, Mr. Avery would have handled when opening the hood to disconnect the battery cable.
172. After Sgt. Tyson swabbed the hood latch, he gave the swab to CCSD Dep. Hawkins for storage. (CCSD Evidence/Property Custody Document, P-C Exhibit 31, STATE 1_6975). The next day, April 4, 2006, Dep. Hawkins signed the hood latch swab (CCSD Property Tag #9188) over to Inv. Wiegert for transport to the WSCL in Madison. (4/4/06 CCSD Report by Hawkins, P-C Exhibit 32, STATE 1_2099-100). Inv. Wiegert transferred custody of the swab to WSCL personnel, purportedly delivering the swab collected from the hood latch for analysis. (CCSD Evidence/Property Custody Document, P-C Exhibit 31, STATE 1_6976). However, on WSCL custody transmittal documents, Dep. Hawkins' name is typed as the submitting officer. (WSCL Receipt of Physical Evidence, attached and incorporated herein as P-C Exhibit 33, STATE 4881). Additionally, Dep. Hawkins' name is printed by hand as the submitting officer on the Wisconsin Department of Justice Evidence Transmittal Form labeled M05-2467-27. (WSCL Transmittal of Criminal Evidence, attached and incorporated herein as P-C Exhibit 34, STATE 4917). There is no evidence that Dep. Hawkins submitted swabs to the WSCL, and all of the evidence establishes that it was Inv. Wiegert who delivered the hood latch swab and printed Dep. Hawkins' name on the transmittal form. It is therefore reasonable to conclude that Inv. Wiegert printed Dep. Hawkin's name by hand in direct violation of all established chain of custody standards and protocols.
173. According to Agent Fassbender's report, the groin swabs taken of Mr. Avery at Aurora Medical Center were discarded. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635). In light of Nurse Fritsch's failure to report that groin swabs were taken from Mr. Avery and Wiegert and Fassbender's intentional violation of the scope of the search warrant, it is a reasonable probability that they intended to plant DNA from the groin swabs and conceal, from the official medical report, that groin swabs were taken. Inv. Wiegert clearly fabricated the chain of custody form given to WSCL. In light of the new scientific testing done on the hood latch, Inv. Wiegert substituted the groin swabs for the hood latch swabs collected by Sgt. Tyson.(Affidavit of Steven Avery, P-C Exhibit 4; Affidavit of Dr. Reich, P-C Group Exhibit 15, 1133-35) (See Paragraphs 169-172).
Failure of Trial Defense Counsel to Present a DNA Expert to Establish that Mr. Avery's DNA Was Never Deposited on the RAV-4 Hood Latch
174. According to current post-conviction counsel's expert, Dr. Reich, the most common way for forensic evidence to be planted is by re-labeling the forensic swabs. (Affidavit of Dr. Reich, P-C Group Exhibit 15,138).
175. The State claimed that Mr. Avery's DNA profile on the hood latch was the result of Mr. Avery opening the hood and touching the latch with "sweaty" fingers. (TT:3/7:102-103; TT:3/14:119-20; TT:3/15:83). The WSCL identified 1.9 nanograms (30 microliters of a DNA solution at a concentration of 0.0616 nanograms/microliter) of DNA on the hood latch. (Affidavit of Dr. Reich, P-C Group Exhibit 15, 1 18; WCSL hood latch DNA quantities, attached and incorporated herein as P-C Exhibit 35).
176. Current post-conviction counsel's DNA expert, Dr. Reich, oversaw experiments in which individuals touched a hood latch identical to the one on Ms. Halbach's vehicle. The hood latch was then swabbed. The swabs were source tested for the presence of skin cells and analyzed for the presence of DNA. In 11 of the 15 experiments, no detectable DNA was present on the swab. The remaining four experiments yielded 0.0519 nanograms, 0.0936 nanograms, 0.0696 nanograms, and 0.0729 nanograms of DNA, respectively. The results of these experiments illustrate the complete improbability of an individual leaving a full DNA profile by simply touching the hood latch in order to open the hood. Instead, Dr. Reich has opined that the most logical explanation for such a high yield of DNA is that it was actually obtained from the swab of Mr. Avery's groin, which was substituted for the hood latch swab by Inv. Wiegert (see ~~ 166-173, supra). (Affidavit of Dr. Reich , P-C Group Exhibit 15, ~~ 25-30 , 32-35; Affidavit of Dr. Palenik, P-C Group Exhibit 24, ~ 10).
177. If trial defense counsel had discovered that the groin swab had been substituted for the hood latch swab, that would have been powerful evidence to present to the jury that would have undermined the State's entire theory and demonstrated that Mr. Avery was being framed.
THE BURNING OF THE BODY AND THE PLANTED BONES
Failure of Trial Defense Counsel to Present a Forensic Fire Expert to Establish that Ms. Halbach's Body Was Not Burned in the Avery Burn Pit and Her Bones Were Therefore Planted
178. Trial defense counsel certainly understood the necessity of having such experts, as is demonstrated by the fact that they had the curriculum vitae, in their trial file, of one of current post-conviction counsel's experts, Dr. DeHaan. (Affidavit of Lauren Hawthorne, attached and incorporated herein as P-C Exhibit 36).
179. Dr. DeHaan has been a forensic scientist/criminalist since 1970, having served with the Alameda County Sheriffs Department, California Department of Justice - Bureau of Forensic Services, and the U.S. Treasury Department - Bureau of Alcohol, Tobacco and Firearms. He has served as President of Fire-Ex Forensics, Inc., since its incorporation in January 1999. He has been involved with various aspects of fire and explosion investigation since 1971. In the past 12 years, he has testified as an expert witness in over 50 cases. In the past 30 years, he authored a major textbook, co-authored one textbook, chapters in three text books, and over 30 articles. (Affidavit of Dr. DeHaan , attached and incorporated herein as P-C Group Exhibit 37, 12).
180. Dr. DeHaan has expressed, to a reasonable degree of scientific certainty based upon his expertise in the area of fire and fire debris examination, the following opinions:
a."The documentation, examination, and recovery of the remains at the Avery scene were all below acceptable professional standards of practice. A properly conducted recovery would have involved more comprehensive photography of the burned bones in the "burn pit" and better documentation as to from where and when all bones were recovered. It is my opinion that someone better qualified to recover potential human remains should have been summoned to perform this excavation. There were incomplete and confusing descriptions of where various possible "burn barrels" were located and incomplete numbering and chain of custody." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 116).
b. "The appearance of the remains as found is often critical to the reconstruction of a fatal event or the destruction of a body. In this case, the minimal photographs taken before the excavation revealed very little useful information as there were few close-up photos taken before or during the recovery/excavation process. In the pre-excavation overall photos, the area of interest was largely obscured by the shadows cast by the team of investigators standing nearby. In the few photographs of the" burn pit," there appeared to be numerous dried leaves that obscured nearly all identifiable detail of the material below (Item 26). From Sgt. Jost's and Wisconsin DOJ Special Agent Sturdivant's descriptions, it appeared that the remains showed no anatomical relationship to each other. Some remains were found outside the "burn pit" and no large bones (more resistant to fire) were visible at all. There was not sufficient pre-excavation documentation of the condition of the materials in the pit to establish the sequence or time of deposit of the remains ultimately recovered from the "burn pit." There was no assessment of fuels associated with the fire, other than describing the remains of the steel belts and beading of burned vehicle tires." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 117). ...
e. "Many of the bone fragments shown in Dr. Eisenberg's forensic anthropology photographs appear to be coated with a yellow or tan soil or dust. Dr. Eisenberg reported that she rinsed some of the recovered bone fragments to allow detailed examination. The bone fragments shown in Dr. Eisenberg's forensic anthropology photos, largely consisted of fragments 1-4 cm in length (0.4 to 2"). Many were completely calcined with no charring of organic tissue visible. Others bore charred residues of organic material in the cancellous or spongy structure within. Such damage can be induced by exposure to an open-air fire of ordinary combustibles for six to eight hours or for shorter times (three to four hours) in a well-ventilated fire in a metal enclosure such as a burn barrel or automobile trunk."(Affidavit of Dr. DeHaan, P-C Group Exhibit 37, ~ 20). ...
The process of stoking a fire with additional lumber or stirring with an implement during its active burning will cause the mechanical destruction of the bones as they are calcined by the flames and often, considerable displacement. The larger bone masses (hip joints, shoulder blades, base of skull at the spine) will remain mostly intact even after stoking an extended cremation of an adult body. The appearance, size, and type of bone fragments documented in Dr. Eisenberg's forensic anthropology reports and photographs exactly mirror the fragments recovered after burn-barrel cremations involving frequent stirring and stoking observed by this author. Such destruction was observed in wood-fueled, burn barrel cremations as short as three and one half hours. (Exhibit C, photographs, attached to Affidavit of Dr. DeHaan, P-C Group Exhibit 37,122). ...
In one recent case investigation, the accused described stoking a large, wood-fueled "pyre" with numerous adult human bodies for some 15 hours, then crushing most of the bones with rocks or wood clubs, and then removing the larger, more identifiable body parts that survived for disposal in the river. The hundreds of small fragments that were recovered from the burn site were very similar in size, shape, and condition to the fragments in Dr. Eisenberg's forensic anthropology photos in this case. Note this involved no confinement except for the wood fuel and was accomplished over a span of 15 hours in an open-air burning pit." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, ii 22).
h."It is the opinion of the undersigned that the human remains recovered and examined by Dr. Eisenberg were physically entirely consistent with cremation of an adult human body in a" field" cremation involving a sustained and re-stoked fire for an extended period of time. In tests conducted as part of FFDIC exercises, open field (roadside dump) fires on flat ground, it was observed that the more massive portions of the adult anatomy (base of the skull, shoulders, pelvis) were charred but were not reduced to calcined bone fragments in fires lasting 4-7 hours, but they did retain their anatomical relationship unless mechanically stirred during the fire. The duration of the fire necessary would depend on whether the fire was in the open (like the shallow "burn pit" suggested by the investigators) or in a well-ventilated metal vessel such as a large drum. Such destruction has been seen to be accomplished in as little as three and one half hours in a well-ventilated, well-tended 55 gallon steel drum with wood fuel. Similar destruction in an open pit would require much more time, on the order of six hours or more." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, ii 24).
i. It is the opinion of Dr. DeHaan that "Teresa Halbach's body was not burned in the burn pit behind Steven Avery's garage." Dr. DeHaan bases this opinion on "the reported lack of anantomical continuity of the remains, the findings of similarly calcined fragments in burn barrels and other locations on the property, and the absence of the more massive fragments that normally resist such exposure." Dr. DeHaan has observed "transfers of heavily burned remains under a variety of conditions that resulted in the largest amount of the fragmentary remains being transferred to another location (with the loss of anatomical relationships)." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 125).
j. It is the opinion of Dr. DeHaan "that someone transferred Teresa Halbach's bones to Steven Avery's burn pit. The discovery of larger fragments outside the margins of the burn pit and the finding of human bone fragments with similar degrees of fire damage in numerous other areas (including burn barrels on site) is also consistent with the" dumping" of burned remains into the pit, with some rolling away. I have observed the survival of numerous small bones after being dumped from a burn barrel or similar enclosure onto a tarp or examination table. It should be noted that there were numerous steel vessels on the salvage yard and surrounding properties that could have been used to burn a human body. These were not examined. The wood-fueled boiler and smelter were examined by [Agent] Pevytoe and no residues were detected there." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 125).
k. It is the opinion of Dr. DeHaan that the State's theory of the burning of Ms. Halbach's body in an open-air burn pit behind Steven Avery's garage from around 7:00 p.m. to 11:00 p.m. on October 31, 2005, a period of only 4 hours, is incorrect. Specifically, Dr. DeHaan states that "the State's theory is not supported by the physical evidence." Dr. DeHaan states that "burning a body in an open-air burn pit takes six to eight hours to accomplish to the degree I observed in Dr. Eisenberg's reports and photos." It is Dr. DeHaan's opinion that "the burned bones found in Steven Avery's burn pit could not have been burned to the degree I observed after four hours of burning in an open-air pit like the one behind Steven Avery's garage." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, r 26).
l. It is the opinion of Dr. DeHaan that the State's theory was also incorrect" in its assertion that the burned vehicle bench seat was used to fuel the burning of Ms. Halbach's body. (TT:3/14:98). The burned remains of the bench seat were not found in the burn pit but near it. Its involvement as an external fuel to aid the combustion of a body in the burn pit is speculative and unsupported by any documents I have reviewed." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, r 27).
m. It is the opinion of Dr. DeHaan that the State's theory was also incorrect "in its assertion that burned bones were intertwined with metal belts resulting from the burning of tires. (TT:3/14:99). The State represented to the jury that the bones were fused with the metal belts in a manner that suggested that the tires from which the steel belts came were burned with the body in Mr. Avery's burn pit. Based upon my review of photographs taken on November 8, 2005 and November 10, 2005, on the occasion of the second excavation of Steven Avery's burn pit, the bone fragments appear to simply be mixed among the metal belts. I have had personal experience with burning steel-belted automobile tires in combination with human bodies. During fire exposure, the steel multi-strand wires degrade, break, and fray to form bristles that readily trap any material coming into contact with them, during or after the fire. Small calcined bone fragments are especially easy to trap. This has been observed in test fires where the tires were under or alongside a burned body as well as on top. It should be noted that [Agent] Sturdivant noted that the guard dog's lead was sufficiently long to give him access to at least some of the burn pit. A quantity of the tire wires/belting was observed to be tangled in the dog's lead at one point. Dragging the tire remains across the burned fragments after the fire would result in the accumulation of fragments in the wire. The "burn pit" may have been used previously to dispose of tires, so there was no evidence that the entrapment of the debris occurred during the fire that consumed the remains. From my review of these photographs and reports generated by law enforcement agents at the scene and Dr. Eisenberg in later examinations, there is nothing to suggest that the tires were, in fact, burned with the human bones recovered in Steven Avery's burn pit in the manner described by the State." (Affidavit of Dr. DeHaan, P-C Group Exhibit 37, 128).
Failure of Trial Defense Counsel to Present a Competent Forensic Anthropologist to Establish that Bones in the Manitowoc County Pit were Human
181. Current post-conviction counsel has retained Dr. Symes, a renowned forensic anthropologist who has worked extensively in the areas of human skeletal biology and skeletal anatomy, forensic toolmark fracture pattern interpretation, including most aspects of trauma to bone, sharp force trauma, special expertise in knife and saw marks in bone, ballistic trauma, healing and acute trauma to bone, peri - vs. postmortem influences on bone, blunt force trauma, and burned bone trauma. Dr. Symes was the recipient of the 15th T. Dale Stewart Award, which is a lifetime achievement award recognized by the American Academy of Forensic Sciences, Anthropology Section. The award recognizes enduring contributions to the field of forensic anthropology and a career marked by accurate, detailed scholarship and remarkable productivity. Dr. Symes' qualifications far exceed those of Dr. Eisenberg or Dr. Fairgrieve in the analysis of traumatic injury to skeletal remains. (Affidavit and CV of Steven Symes, PhD, "Affidavit of Dr. Symes", attached and incorporated herein as P-C Group Exhibit 38, ~ 2).
182. Dr. Symes has offered the opinion, to a reasonable degree of scientific certainty in the field of forensic anthropology, that:
a. A microscopic examination, if performed in 2005, would have determined with a high percentage of accuracy whether the pelvic bones found in the Manitowoc County pit were human in origin; and
b. Histological slides, if made in 2005 from the suspected human pelvic bones, would have determined with a high percentage of accuracy whether the pelvic bones found in the Manitowoc County pit were human.
183. Dr. Symes opines that it was below the standard of practice for a reasonably well qualified and competent forensic anthropologist, such as Scott Fairgrieve, PhD, the defense expert, to have relied exclusively upon photographs of the pelvic bones to complete their forensic examination. (Affidavit and CV of Steven Symes, PhD, P-C Group Exhibit 38, ~ 5).
184. If trial defense counsel had obtained a competent forensic anthropologist who had performed a microscopic and histological examination of the suspected human bones found in the quarry, it would have conclusively established that Ms. Halbach's bones were transported to Mr. Avery's burn pit from another site. ...
FALSE WITNESS TESTIMONY
Current post-conviction counsel's investigator's experiments demonstrate Mr. Fabian's trial testimony is false. Using photographs of Mr. Avery's burn barrel taken by investigators in November 2005, Mr. James Kirby, current post-conviction counsel's investigator, with the assistance of two other witnesses placed Mr. Avery's burn barrel in the same location it was in when Mr. Fabian, according to his testimony, observed it on October 31, 2005. Whenever Mr. Avery burned garbage in his burn barrel, he started the fire using brush and a lighter, not an accelerant. (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Kratz, in his closing, attributed the odor and smoke described by Mr. Fabian to Mr. Avery's burning of Ms. Halbach's electronic devices. (TT:3/14:68). Mr. James Kirby, in his experiment, attempted to recreate the odor of burning plastic described by Mr. Fabian by burning electronic devices identical to those owned by Ms. Halbach in Mr. Avery's bum barrel. Mr. James Kirby allowed the experiment Palm Zire 31 PDA to burn for approximately 14 minutes and the experiment RAZR cell phone to bum for over an hour. Upon taking the RAZR out of the burn barrel, Mr. James Kirby observed that it was burned to a similar degree as the identical cell phone discovered in Mr. Avery's bum barrel. Two witnesses, when standing in the location described by Mr. Fabian at trial, as well as leaning over the burn barrel, detected no odor of burning plastic. (Affidavit and CV of James Kirby, attached and incorporated herein as P-C Group Exhibit 40).
189. On April 11, 2017, a second experiment was conducted where a Canon PowerShot A3l0, the same camera issued to Ms. Halbach by AutoTrader, was burned at a higher temperature than possible in Mr. Avery's burn barrel to determine whether it would emit a detectable odor of burning plastic. Again, there was no detectable odor of burning plastic or heavy smoke emanating from the fire. (Affidavit of Lauren Hawthorne, P-C Exhibit 36; Second Affidavit of Kurt Kingler, attached and incorporated herein as P-C Exhibit 78). In light of the above-described experiments, Mr. Fabian could not have observed heavy smoke and detected the smell of burning plastic as a result of Mr. Avery burning Ms. Halbach's electronic devices in his burn barrel on October 31, 2005. Mr. Avery has consistently maintained that he did not burn garbage in his burn barrel on October 31, 2005. (Affidavit of Steven Avery, P-C Exhibit 4).
Applicable Case Law Re: State's Coercion of Witness to Provide False Trial Testimony
190. A prosecutor's knowing use of false or incredible evidence to obtain a conviction violates a defendant's right to due process guaranteed by the Fourteenth Amendment to the United States Constitution. State v. Nerison, 136 Wis 2d 37, 54 (1987). On occasion it may be discovered that the prosecution's case rests on perjured testimony that the prosecution knew or should have known was perjured. Tucker v. State, 84 Wis. 2d 630, 642 (1978). In such a case, a defendant's conviction must be set aside "... if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976); United States v. Verser, 916 2d 1268, 1271 (7th Cir.1990).
191. The State violates a defendant's due process rights to a fair trial by using and failing to correct false testimony. The crux of a denial of due process is deliberate deception. ...
Unlike the defendant in Whiting, Mr. Avery is not arguing that he was convicted because a State witness contradicted the testimony of other witnesses. Here, Mr. Avery's conviction must be set aside because it has been discovered through recent investigation that Mr. Fabian provided false testimony at Mr. Avery's trial.
194. Mr. Fabian's testimony that he observed heavy smoke and smelled burning plastic, presumably of Ms. Halbach's burning electronic components, has been completely refuted by a simple experiment. Therefore, Mr. Avery has established a due process violation occurred because he has established that:
(1) there was false testimony;
(2) the State knew or should have known it was false; and
(3) there is a likelihood that the false testimony affected the judgment of the jury.
See, State v. Cramer, 2013 WI App 138, ~ 22, 351 Wis. 2d 682 (2013). Additionally, Mr. Avery has established ineffective assistance of trial defense counsel for their failure to detect, by a simple experiment, that Mr. Fabian's trial testimony was false and could have been impeached by them if they had performed such a simple experiment.
195. Mr. Avery must be granted relief because implicit in any dignified concept of due process, and well rooted in American jurisprudence, stands the principle that a conviction obtained through the use of false evidence or testimony, known by representatives of the prosecution, must be set aside in favor of a new trial. See, Miller v. Pate, 386 U.S. 1, 6-7 (1967). This fundamental tenet does not cease to apply merely because the false testimony goes only to the credibility of the witness. Napue v. Illinois, 360 U.S. 264, 269 (1959). The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend. ...
IMPROPER AND INCOMPLETE INVESTIGATION
Significantly, Mr. Avery's trial defense counsel failed to obtain an expert in police procedures and investigations, such as Mr. McCrary, who could have educated the jury about the fundamental failures of the investigation of the homicide of Ms. Halbach. Specifically, trial defense counsel could have presented testimony, through an expert in police procedures and investigations, that:
a. Law enforcement failed to study the lifestyle and relevant history shared by Ms. Halbach and those close to her;
b. Law enforcement failed to begin their investigation with a credible investigation of those closest to Ms. Halbach;
c. Law enforcement failed to identify which witnesses intentionally misled the investigation;
d. Law enforcement's investigation of the homicide of Ms. Halbach failed when they constructed a flawed narrative of the crime and built organizational momentum toward the resolution of that flawed narrative;
e. Law enforcement's investigation was characteristic of tunnel vision and premature closure when they closed the investigation to alternative theories; and
f. Law enforcement's investigation was characteristic of confirmation bias, anchor bias, and groupthink when they failed to consider suspects other than Mr. Avery. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, i 25).
204. Mr. McCrary holds all following opinions to a reasonable degree of professional certainty in the fields of police practices and investigative procedures. Every meaningful investigation or analysis begins with a study of the victim. For example, investigators must seek to identify who the victim was and what was going on in his or her life at the time of the event when initiating a death investigation. Other salient details of the victim's life include whether the victim had expressed any concerns about his or her security, whether the victim had expressed any fears, whether the victim was in a relationship, and whether the victim had any significant issues in past dating relationships. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, ~ 4).
205. According to the FBI Uniform Crime Report, most victims of homicide are killed by someone known to them. Further, the motive to kill typically is rooted in interpersonal conflict between the victim and the offender. Therefore, credible homicide investigations begin with those closest to the victim - e.g., family members, intimate partners, and close friends - and move out, as if in concentric circles, only when those closest to the victim have been thoroughly investigated and eliminated as suspects. If, through methodical investigation, those closest to the victim can be ruled out as suspects, the investigation moves out incrementally to people who knew the victim, like associates, colleagues, and acquaintances. Mr. McCrary has offered the opinion that someone who had no substantial prior relationship with the victim is unlikely to be the offender. (Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 5). ...
210. Cognitive biases such as confirmation bias, anchor traps, organizational momentum, and groupthink commonly cause investigators to make avoidable mistakes and jeopardize the successful resolution of their investigation. The failure of such criminal investigations are rarely examined. Therefore, the presence and effect of these biases often remain unexamined. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 110).
211. Tunnel vision emerges when investigators unduly limit the alternatives to their fixed hypothesis such that other suspects who should be investigated are eliminated from the investigation and evidence that cuts contrary to the dominant narrative is discounted or ignored. Similarly, premature closure results when investigators make early judgments about the resolution of their investigation and defend those judgments tenaciously, even in the face of conflicting evidence. Both tunnel vision and premature closure are evidence of a tendency to put more weight on evidence that supports the dominant hypothesis than evidence that weakens it." Arresting the first likely suspect, then closing the investigation off to alternative theories, is a recipe for disaster; tunnel vision has been identified as a leading cause of wrongful convictions." (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 1110-11).
212. Confirmation bias is a type of selective thinking in which an individual is more likely to notice or search for evidence that confirms his or her hypothesis while ignoring or refusing to search for contradicting evidence. Anchor traps occur when "a person does not consider multiple possibilities, but quickly and firmly latches onto a single one, sure that he has thrown his anchor down just where he needs to be." Group think is the reluctance to think critically and challenge the dominant theory (no one wants to tell the emperor he has no clothes). It occurs in highly cohesive groups under pressure to make important decisions." These cognitive biases contribute to investigators moving prematurely from an evidence-based investigation to a suspect-based investigation, where the attitude becomes, "We know who did it. Now let's get the evidence that proves it." (Affidavit of Gregg McCrary, P-C Group Exhibit 42, r 12, 14).
213. Regardless of what seemingly valid alibis are offered, potential suspects should be examined for injuries when investigators believe that a violent crime has occurred. Injuries are best considered to be transient evidence and if they are not documented early in an investigation, they will be lost. All alibis and statements should be thoroughly investigated and corroborated before eliminating anyone as a suspect. Any statements that contain non-public information about the crime or crime scene are of particular importance as it is the type of evidence that can turn a non-suspect into a suspect or elevate a given suspect into a prime suspect. The key issue in those situations is how the individual obtained that information. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, r 15).
Failure of Law Enforcement to Investigate Ms. Halbach's Background to Realize that She Was At An Elevated Risk of Becoming a Victim of Violence
214. "[Ms.] Halbach, the victim in this case, could be considered to be at an elevated risk for becoming the victim of violence due to her prior abusive relationship with her ex- boyfriend, [Mr.] Hillegas, and her business, which involved nude photography." Third party advertisers began advertising Ms. Halbach's business as providing "adult entertainment services." Although there is no proof that Ms. Halbach herself chose to advertise her business as providing "adult entertainment services," her nude photography business led others to advertise her business as providing "adult entertainment services." (Affidavit of Thomas Pearce, attached and incorporated herein as P-C Exhibit 44; Affidavit of Gregg McCrary, P-C Group Exhibit 42, 1 17) ("Second Affidavit of James Kirby," attached and incorporated herein as P-C Exhibit 79).
VALID THIRD PARTY SUSPECT
Failure of Law Enforcement to Identify Prior Abuse in Ms. Halbach's Romantic Relationships to Correctly Assess the Motive for Her Murder
215.According to Mr. McCrary, based upon violent crime statistics, the killer most likely knew Ms. Halbach and may have been involved, at some point in time, in a romantic relationship with her. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 15). The relationship was characterized by verbal and physical abuse by the killer towards Ms. Halbach. (Affidavit of Thomas Pearce, attached and incorporated herein as P-C Group Exhibit 44). Even after Ms. Halbach ended their relationship, the killer continued to attempt to exert control over her by living nearby and coming to her home frequently. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 118).
216. Before Ms. Halbach's murder, the killer most likely became aware that she was sexually involved with a married man and a second male who was Avery close friend of the killer's. (11/4/05 CCSD Interview of Bradley Czech ("Mr. Czech") ("Bradley Czech Interview"), attached and incorporated herein as P-C Exhibit 43) (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 117).
The Killer's Post-Mortem Activities to Conceal Evidence and Frame Mr. Avery
217. The killer wanted as much time as possible before the people close to Ms. Halbach realized she was gone. As she received more and more phone calls, her voice mailbox became full, something uncharacteristic of Ms. Halbach. The killer, who knew the password to her voice mailbox, deleted several of Ms. Halbach's voice messages to buy himself time before Teresa's family and friends realized that she was missing and began searching for her. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 122).
218. Before her death, Ms. Halbach was known to regularly check and respond to her voicemails. (11/9/05 DCI Interview of Thomas Pearce, attached and incorporated herein as P-C Exhibit 52, STATE 770). If family and friends were to call Ms. Halbach and receive a message that Ms. Halbach's voicemail was full, it can be assumed that they would have been alarmed. When Ms. Halbach's voicemail was discovered to be full on November 3, 2005, it triggered her friends and family to notify law enforcement that she was missing. The killer deleted voice messages from Ms. Halbach's voicemail in order to prolong the window of time before Ms. Halbach was reported missing, thereby increasing the amount of time the killer had to dispose of Ms. Halbach's body and personal effects. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 122).
219. The method of deletion, in order to leave no record in Ms. Halbach's cell phone records, could only be accomplished in one way: her voicemail had to be accessed from another phone by using Ms. Halbach's voicemail password. Ms. Halbach's phone records do not indicate that her voicemail was accessed using her own phone after 2:12 p.m. on October 31, 2005. This indisputable fact means the person who accessed Ms. Halbach's voicemail, prior to the authorities realizing she was missing on November 3, 2005, had to be the killer who knew Ms. Halbach's password, which would be required to delete voicemails recorded to her phone. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, ~ 22). The killer knew Ms. Halbach very well in order to know her password. Clearly this person was not Mr. Avery.
220. Knowing that he was likely to be a prime suspect due to his prior romantic relationship with Ms. Halbach, the killer, who was highly organized, devised a plan to burn the body and plant evidence which would focus law enforcement on someone else. Because the killer found appointment details in the paperwork in the RAV-4, he knew Ms. Halbach had an appointment with Mr. Avery earlier that afternoon. The killer formulated a plan to move the body and the vehicle near the Avery property with the intent of planting the RAV-4 on the Avery property and Ms. Halbach's bones and electronic components as soon as the body and electronic components were burned in the adjacent gravel pit. (Trial Exhibits 17, 20; TT:2/13:79-80, 92). The killer would have been familiar with Mr. Avery and his fame as a wrongfully convicted exoneree who was suing Manitowoc County. (Trial Exhibit 17; TT:2/13:79-80) (Affidavit of Gregg McCrary, P-C Exhibit 42, ~~ 7, 17, 25).
221. The killer wanted to control the investigation and direct it towards the single goal of framing Mr. Avery for the murder. To accomplish that goal, he volunteered to take control of the citizen search as a means of both staying informed and controlling the focus of the investigation. In his initial contact with law enforcement, the killer immediately attempted to misdirect their investigation by not telling them about his relationship with Ms. Halbach or her relationship with other men. (TT:2/13: 189). The killer participated in the discovery of major pieces of evidence, even going as far as leading searchers to the vehicle that he planted. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, i 7).
The Killer, And Not Law Enforcement, Planted Mr. Avery's Blood in the RAV-4
222. Current post-conviction counsel's blood spatter expert has demonstrated that Mr. Avery's blood was planted in Ms. Halbach's RAV-4 (see i,i 129-134). The only parties who may have had motive to plant evidence inculpating Mr. Avery were the killer and law enforcement, namely MCSD, in light of Mr. Avery's pending civil action against Manitowoc County.
223. However, current post-conviction counsel has determined that MCSD officers did not have time to plant Mr. Avery's blood in the RAV-4 on November 3, 2005. After Sgt. Colborn came to the Avery properly on November 3 to speak with Mr. Avery around 7:00 p.m., he attended a meeting at the MCSD at 8:00 p.m. (T:2/20: 73, 78). Sgt. Colborn's presence at the MCSD was corroborated by Inv. Dedering. For Sgt. Colborn to arrive at the MCSD, an approximately 23-minute drive from the Avery property (Google Maps Directions from Avery Property to MCSD, attached and incorporated herein as P-C Exhibit 49), by 8:00 p.m., he must have departed the Avery property by 7:37 p.m. Therefore, Sgt. Colborn would have had a short window of opportunity to obtain a spare key to Ms. Halbach's RAV-4, locate Ms. Halbach's RAV-4, drive Ms. Halbach's RAV-4 from Kuss Road to Mr. Avery's trailer through the field, drive back to a hiding place after being detected, return to the trailer a second time, collect Mr. Avery's blood from his bathroom sink, and plant Mr. Avery's blood in Ms. Halbach's RAV-4.
- If Mr. Avery left at 7:15 p.m., Sgt. Colborn would have had 22 minutes to accomplish all of those tasks.
- If Mr. Avery left at 7:20 p.m., Sgt. Colborn would have had 17 minutes to accomplish all of those tasks.
- If Mr. Avery left at 7:25 p.m., Sgt. Colborn would have had 12 minutes to accomplish all of those tasks.
- If Mr. Avery left at 7:30 p.m., Sgt. Colborn would have had 7 minutes to accomplish all of those tasks.
224. The killer was familiar with the Radandt and Manitowoc County pits. He devised a plan to bring the RAV-4 from the murder scene to the Avery property. His chief objective was to plant the vehicle on the Avery property. The killer was organized and methodical, and likely had a background in science. He knew that he needed to put something with the DNA of Mr. Avery in the RAV-4. Evidence from the scent and cadaver dogs supports the conclusion that the killer drove the RAV-4 onto the Avery property from Kuss Road, across a field to the vicinity of Mr. Avery's trailer. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 42-43; Affidavit of Steven Avery, P-C Exhibit 4).
225. Once Mr. Avery departed, the killer began to drive the RAV-4 onto the Avery property. When Mr. Avery spotted the RAV-4's tail lights and turned around and drove back to check it out (Affidavit of Steven Avery, P-C Exhibit 4), the killer retreated to Kuss Road. Once Mr. Avery left again, the killer drove back to the trailer. The south door on the east side of Mr. Avery's trailer was unlocked. (Affidavit of Steven Avery, P-C Exhibit 4), and the killer entered the trailer, intent on finding an item of Mr. Avery's with his DNA that he could use to plant DNA in the RAV-4 to connect Mr. Avery to Ms. Halbach's murder. In the small trailer, the killer noticed fresh blood in the bathroom sink. The killer recognized from his scientific background that if this blood was in Ms. Halbach's RAV-4, Mr. Avery would immediately become the only suspect. The killer quickly collected the blood from the sink in Mr. Avery's bathroom and deposited the blood in several spots throughout the RAV-4. The killer recognized that the blood had to be planted quickly, within 15-28 minutes and before it coagulated. (Affidavit of Dr. Blum, P-C Group Exhibit 47, ~ 12). He then hid the RAV-4 in the vicinity of the Kuss Road cul-de-sac.
226. On November 3, the killer learned vital information from law enforcement during his police interview. He quickly realized that law enforcement was focused on Mr. Avery and not on him. He was not asked to explain his past relationship with Ms. Halbach or to provide an alibi for the afternoon and evening of October 31. He was not asked about the scratches on his left hand or why he knew Ms. Halbach's voicemail password. The killer was not treated like a suspect. (TT:2/13:194-95). Mr. Avery would immediately become the only suspect.
227. On November 4, the killer decided to make another attempt to plant the vehicle on the opposite side of the Avery property, that is, in the southeast corner, close to the crusher. The killer, who drove the RAV-4 into the Radandt Pit in the late afternoon of November 4, was aided by an accomplice who drove another vehicle into the Radandt Pit to give the killer a ride out after the killer planted Ms. Halbach's vehicle on the Avery property.
228. The killer led law enforcement to Ms. Halbach's vehicle later in the evening on November 4. The killer represented to law enforcement that he would be willing to search the Avery property, something that the police could only do with a warrant based on probable cause which they did not have on November 4. The killer, accompanied by law enforcement, went to the Avery property and the killer proceeded to Ms. Halbach's vehicle in the southeast corner of the salvage yard. When the killer looked into Ms. Halbach's vehicle, he called out," it's hers ," because he recognized her personal items in the vehicle in addition to her vehicle itself.
229. Once the vehicle was found on the Avery property, the investigation of any other potential suspects halted and, just as the killer planned, the whole case was focused on Mr. Avery. (Affidavit of Gregg McCrary, P-C Group Exhibit 42, 121). The killer duped law enforcement into focusing exclusively on Mr. Avery and helped them justify planting additional evidence to frame Mr. Avery.
The Killer Planted the Bones and the Electronic Devices
230. As the leader of the search team, the killer had unrestricted access to the Avery salvage yard and surrounding properties, closed off to public access. This was critical, because the killer still was in possession of the burned bones and the electronic devices of Ms. Halbach. Access to the Avery property allowed him to plant the bones and electronic devices of Ms. Halbach in Mr. Avery's bum pit and burn barrel.
The Killer Knocked Out the RAV-4 Parking Light While Trying to Plant RAV-4 on Mr. Avery's Property
231.Mr. Avery did not see any front-end damage to Ms. Halbach's vehicle when she came to his property on October 31, 2005. (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Schmitz, an earlier appointment of Ms. Halbach's, noted that Ms. Halbach's vehicle "looked very new," and did not note any damage. (11/3/05 CCSD Interview of Steven Schmitz, attached and incorporated herein as P-C Exhibit 50, STATE 1210). However, when Ms. Halbach's vehicle was discovered on the Avery salvage yard on November 5, the driver's side parking light was broken out and the killer had placed the broken light in the rear cargo area of her RAV-4. When the killer damaged the vehicle, he did not want the parking light found anywhere other than the Avery property because if any pieces of the parking light were found elsewhere, the State's entire theory that Mr. Avery was the killer and the RAV-4 never left Mr. Avery's property would disintegrate. The killer would be highly motivated to pick up the parking light if he had a collision with a post that knocked the parking light to the ground near Mr. Avery's trailer. The killer put the parking light in the rear cargo area of the RAV-4 and planted the RAV-4 on the Avery properly.
232. Only someone who committed the murder and/or was involved in the effort to plant the vehicle on the Avery property would know the significance of the broken parking light and that it had been placed in the RAV-4 to conceal the fact that the vehicle was moved onto Mr. Avery's property from elsewhere. Northwest of Mr. Avery's trailer, between the Avery property and the cul-de-sac at Kuss Road, there was a metal post protruding approximately 2 ½ feet from the ground. (Photo showing post, P-C Exhibit 51). When the killer attempted to plant Ms. Halbach's vehicle near Mr. Avery's trailer, he collided with this post, causing the damage to the front end of Ms. Halbach's RAV-4 and knocking out the driver's side parking light. He recognized the need to retrieve the parking light because leaving it, or any pieces of it, in the field would show the RAV-4 left the Avery property contrary to Mr. Kratz's theory that the RAV-4 never left the Avery property. (TT:3/15:77-78).
Only One Person Meets the Requirements of Denny as a Third Party Suspect With Motive, Opportunity and a Connection to the Crime Abusive History
233. Mr. Hillegas was Ms. Halbach's ex-boyfriend. Mr. Hillegas and Ms. Halbach knew each other since they were freshmen in high school, and dated on and off for five years. (TT:2/13:156, 173). Although Ms. Halbach and Mr. Hillegas were romantically involved during their high school and college years, they were no longer together in 2005, although Ms. Halbach reported to friends that Mr. Hillegas continued to check her out despite being broken up for years. (Email from Ms. Halbach, attached and incorporated herein as P-C Exhibit 53, STATE 4030).
234. According to Mr. Pearce, a friend and colleague of Ms. Halbach, Ms. Halbach had been in a verbally and physically abusive relationship prior to or during her internship with Mr. Pearce. Ms. Halbach interned with Mr. Pearce in 2003 during her senior year of college when she was still involved with Mr. Hillegas. (Affidavit of Thomas Pearce, P-C Exhibit 44).
Jealousy Was The Motive
235. While Mr. Hillegas maintained an interest in Ms. Halbach, she was no longer romantically interested in him. (Email from Ms. Halbach, P-C Exhibit 53). Ms. Halbach became sexually involved with her housemate, Mr. Bloedorn, in the months preceding her disappearance. (Bradley Czech Interview, P-C Exhibit 43, STATE 2523-24). Reportedly, Mr. Bloedorn was also Mr. Hillegas' best friend. (TT:2/13:175). Mr. Hillegas committed perjury at trial when he described Ms. Halbach's relationship with Mr. Bloedorn as platonic and never romantic or sexual in nature. (TT:2/13: 157). Current post-conviction counsel's investigator Mr. Steven Kirby attempted to interview Mr. Bloedorn about false statements he had made to the police in 2005. Mr. Bloedorn refused to sit for an interview with Mr. Steven Kirby, but when he was told that current post-conviction counsel planned to name a suspect in Ms. Halbach's murder, Mr. Bloedorn immediately blurted out, "You mean Ryan Hillegas." (Affidavit of Steven Kirby, attached and incorporated herein as P-C Exhibit 83). Another point of jealousy for Mr. Hillegas might have been the fact that Ms. Halbach, as part of her business, took nude photographs of men and women and this activity led her to become sexually involved with one of her clients, Mr. Czech. Mr. Czech was married to someone else at the time. Ms. Halbach kept the nude photographs that she had taken of Mr. Czech and his then-wife in the bedroom of her residence (11/4/05 CCSD Interview of Jolene Bain, "11/4/05 Jolene Bain Interview", attached and incorporated herein as P-C Exhibit 54, STATE 2511), a home that Mr. Hillegas frequented and moved into after Ms. Halbach's death. (11/14/05 CCSD Report by Sgt. Tyson, attached and incorporated herein as P-C Exhibit 55, STATE 1466; Correspondence Regarding Nude Photography, attached and incorporated herein as P-C Group Exhibit 56, STATE 3898, 3849; Affidavit of Thomas Pearce, P-C Exhibit 44).
236. Mr. Czech left a text message for Ms. Halbach at 12:45 p.m. on October 31, 2005. Mr. Czech was completely forthcoming in his interview with law enforcement on November 4, 2005 that he had texted Ms. Halbach. He was not asked the content of the message nor to show the message to law enforcement during his interview. At no point did law enforcement attempt to obtain the text message from Mr. Czech. (11/4/05 CCSD Interview of Bradley Czech, P-C Exhibit 43). Although Mr. Czech did not have an alibi for October 31, and another witness had described that Ms. Halbach had broken off her relationship with Mr. Czech but he continued to call her, Mr. Czech did not meet the Denny requirements. (11/4/05 CCSD Interview of Jolene Bain, P-C Exhibit 54).
237. For some unknown reason, Mr. Hillegas called Mr. Czech on November 3, 2005. According to their phone records, this was the first time Mr. Hillegas talked to Mr. Czech on the phone. (Ryan Hillegas Phone Records, attached and incorporated herein as P-C Exhibit 57; Bradley Czech Interview to verify Bradley Czech's phone number, P-C Exhibit 43).
Mr. Hillegas Intentionally Misled Investigators
238. When Mr. Hillegas volunteered false information about when the parking light damage occurred, it raised red flags about his involvement in the murder and the effort to frame Mr. Avery. (12/14/05 DCI Report, attached and incorporated herein as P-C Exhibit 58, STATE 1144). Certainly, Mr. Hillegas had no motive to frame Mr. Avery unless he himself murdered Ms. Halbach. It is difficult to imagine a much more compelling motive to frame Mr. Avery than the one possessed by the murderer of Ms. Halbach. The alleged motive, presented by trial defense counsel, that MCSD investigators were trying to derail Mr. Avery's civil rights lawsuit against them pales in comparison to the killer's motive to frame Mr. Avery.
239. Mr. Hillegas intentionally diverted investigators by reporting that the damage to the driver's side bumper and parking light of Ms. Halbach's RAV-4 occurred months before her disappearance and that she had filed an insurance claim for the damage. (12/14/05 DCI Report, P-C Exhibit 58, STATE 1144). Current post-conviction counsel, through its investigator, has confirmed that Ms. Halbach never filed an insurance claim for this damage to her vehicle, and further contends that the damage to Ms. Halbach's vehicle occurred after she left the Avery property on October 31, 2005. (Response to Subpoena to Erie Insurance, attached and incorporated herein as P-C Exhibit 59). The most reasonable explanation for Mr. Hillegas' intentional misleading of law enforcement regarding the damage to Ms. Halbach's parking light is that Mr. Hillegas wanted to divert attention from the parking light that was tossed in the rear cargo area of the RAV-4 by the killer when he was trying to plant the car on Mr. Avery's property and inadvertently hit a post on Radandt's property. Mr. Hillegas would not want the searchers looking for other pieces of the parking light on the Radandt property because, if those pieces were found, it would destroy the State's narrative that, after the murder, the RAV-4 never left the Avery property. If the narrative implicating Mr. Avery was refuted, the investigators might begin looking at more likely suspects such as Mr. Hillegas himself.
Opportunity
240. Mr. Hillegas was trained as a nurse but was unemployed in October and November 2005. He had no alibi for October 31, 2005, the date Ms. Halbach was murdered, or the subsequent days when her body was burned and bones planted. (TT:2/13:174).
241. Mr. Hillegas was never asked by law enforcement to provide an alibi for October 31, 2005. (TT:2/13: 194). Trial defense counsel failed to conduct any substantive investigation of Mr. Hillegas, choosing to name him as a potential suspect at one point but failing to meet the requirements of Denny.
242. Mr. Hillegas' cell phone records show significant gaps during time periods in question. On October 31, 2005, there was a six hour gap -- a time frame in which there were neither incoming nor outgoing calls -- from 9:41 a. m. to 3:48 p.m. (Ryan Hillegas Phone Records, P-C Exhibit 57). It is most likely that, during this time frame, Ms. Halbach departed the Avery property, departed the Zipperer property, and was killed after she arrived home at approximately 3:40-3:50 p.m. Ms. Halbach's day planner indicated that she wanted to "get Sarah's stuff from mom" at about 3 p.m. and "do biz paperwork" at approximately 4:30 p.m. ("Ms. Halbach's day planner," attached and incorporated herein as P-C Exhibit 45). Also on October 31, there was an over two-hour gap in Mr. Hillegas' phone records from 3:50 p.m. to 6:01 p.m. (Ryan Hillegas Phone Records, P-C Exhibit 57).
243. Mr. Hillegas' phone records have an over 17-hour gap from 7:47 p.m. on October 31, 2005, to 1:31 p.m. on November 1, 2005, during the time where Ms. Halbach's body was transported and burned. Subsequently, Mr. Hillegas had more suspicious gaps in calls. There was a six-hour gap in phone activity on November 2, 2005, from 10:06 a.m. to 4: 12 p.m., and a gap on November 3, 2005, from 7:31 p.m. to 8:10 p.m, the time when Mr. Avery reported seeing
244. Mr. Hillegas had access to Ms. Halbach's Cingular Wireless account and knew her username and password, as evidenced by Mr. Hillegas' admission that he used her username and password to obtain her phone records after she went missing. (TT: 2/13:159).
Opportunity to Conceal and Plant
245. Mr. Hillegas called Ms. Halbach's phone at 6:42 p.m. on November 1, 2005. Mr. Hillegas has admitted that when he called on Thursday, November 1, 2005, an automatic message played saying that Ms. Halbach's voicemail box was full. (TT:2/13:183). However, Mr. Hillegas' testimony is undermined by the fact that his call only lasted 4 seconds; by comparison, Mr. Avery's call, which also generated an automated message that the voicemail box was full, lasted 13 seconds, more than three times longer than Mr. Hillegas' call. (Ms. Halbach's cell phone records ("New Cell Records"), attached and incorporated herein as P-C Exhibit 72). Sometime after that call and before the call of Mr. Pearce when her voicemail box was full again, the killer deleted voice messages.
246. Scratches are visible on the back of Mr. Hillegas' left hand in footage taken prior to the discovery of the RAV-4 on November 5, 2005. Current post-conviction counsel's forensic pathologist, Dr. Blum, has opined that Mr. Hillegas' injuries are consistent with scratches from fingernails. Dr. Blum has confirmed that photographs of Ms. Halbach taken close to her death establish that her fingernails were of adequate length to inflict such scratches on Mr. Hillegas left hand. (Photographs of Mr. Hillegas' Hands, attached and incorporated herein as P-C Group Exhibit 60; Affidavit of Dr. Blum and video reenactment of likely scenario creating injury pattern, P-C Group Exhibit 47; Affidavit of Gregg McCrary, P-C Group Exhibit 42, i 25).
247. The most obvious motive for burning Ms. Halbach's body would be if the killer had a known and established relationship with Ms. Halbach and his DNA was on her body from a struggle or rape. Additionally, the burning of the body would allow him to move or plant the bones and divert the suspicion away from himself, because he was likely to be a prime suspect due to his prior abusive relationship with Ms. Halbach. Mr. Avery would not need to risk detection by others by burning Ms. Halbach's body in an open pit 20 feet from his trailer. Mr. Avery could have crushed the vehicle and disposed of the body on the hundreds of acres surrounding his properly.
Mr. Hillegas Accessed Ms. Halbach's Voice Mailbox
248. After hearing Ms. Halbach's voicemail was full, Mr. Hillegas, who had no trouble accessing Ms. Halbach's Cingular Wireless account, would be able to delete some of her voicemails in order to prevent family and friends from becoming concerned by a full voice mailbox. Clearly, the killer would not want Ms. Halbach's voice mailbox to be full because friends and family calling her would become concerned about her well-being and contact the authorities.
249. Ms. Halbach's voice mailbox had a twenty-minute capacity. (Cingular Basic Voicemail Features, attached and incorporated herein as P-C Exhibit 61). When Mr. Avery called Ms. Halbach's phone at 4: 35 p.m. on October 31, his phone call went directly to the automated message which indicated that the voice mailbox was full, meaning her voice mailbox was occupied by twenty minutes of voicemails. When Ms. Halbach's colleague, Mr. Pearce, called her on November 2 around noon, her voice mailbox was full, meaning her voice mailbox was occupied by twenty minutes of voicemail again. (TT:2/12: 199- 200). According to Agent Fassbender's report documenting his receipt of voicemail records from Cingular, five minutes and eleven seconds worth of voice messages were left between when Mr. Avery found Ms. Halbach's voicemail to be full and when Mr. Pearce found Ms. Halbach's voicemail to be full. Therefore, to make room for the voice messages that were recorded between Mr. Avery's call and Mr. Pearce's call, at most five minutes and eleven seconds worth of voice messages were deleted by the killer between when Mr. Avery called and when Mr. Pearce called. (6/12/06 DCI Report ("Agent Fassbender VM Report"), attached and incorporated herein as P-C Exhibit 62).
250. After Mr. Pearce called around noon on November 2, 2005, three minutes and 45 seconds of voice messages were recorded to Ms. Halbach's voicemail before her voicemail was widely reported to be full on the evening of November 3, 2005. Therefore, space in Ms. Halbach's voicemail had to be freed up for more voicemails to be recorded, so at most three minutes and forty-five seconds worth of voice messages were deleted after Mr. Pearce called. (Agent Fassbender VM Report, P-C Exhibit 62). The killer could have deleted Mr. Czech's text message without leaving proof that he entered the phone.
TRIAL DEFENSE ATTORNEYS DID NOT PROPERLY INVESTIGATE - IF SO, THEY WOULD HAVE NAMED RYAN HILLEGAS AS THIRD PARTY SUSPECT
Trial Defense Counsel Failed to Properly Investigate a Variety of Topics: Sgt. Colborn's Dispatch Call; Time lines; Voicemail Deletions; Items from Maribel Park; Suspected Burial Site; Veracity of Police Reports; Witness to the RAV-4 Planting on November 4 Applicable Case Law Re: Trial Defense Counsel's Duty to Investigate
265. In State v. Thiel, 264 Wis.2d 571 (2003), the Wisconsin Supreme Court granted post-conviction relief after the defense attorney at trial failed to conduct a significant investigation. There, the defendant set forth precisely what would have been revealed had the defense attorney conducted an investigation consistent with the defendant's constitutional right to counsel. As in Thiel, relief is warranted. Thiel also supports Mr. Avery's position that relief is warranted because his trial defense attorneys were ineffective in failing to properly review the discovery prior to Mr. Avery's trial. In Thiel, the defendant's allegation that his trial attorney had not reviewed all of the discovery constituted an additional basis for the Supreme Court to grant relief. The same result is compelled here.
Trial Defense Counsel's Failure to Investigate and Establish the Correct Timing of Sgt. Colborn's Dispatch Call and Discovery of the RAV-4
266. On November 4, 2005, Sgt. Colborn discovered Ms. Halbach's vehicle and called dispatch, on a personal line (TT:3/15:74-78), to confirm Ms. Halbach's license plate number. (TT:2/20: 180-182). Audible in a recording of Sgt. Colborn's call to Manitowoc dispatch regarding the victim's plate number, a third party states, "it's hers." (Enhanced Audio Clip from Track 3 of Trial Exhibit 212, P-C Exhibit 66).
Scent Tracking Dogs Showed that Ms. Halbach's Vehicle Was Moved Onto the Avery Property
251. Scent tracking dogs gave trained alerts in the wooded area south of the Kuss Road cul-de-sac and between Mr. Avery's trailer and the Kuss Road cul-de-sac. (Sent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 43, 45-46). Some of the scent tracking dogs deployed in the search for Ms. Halbach were trained to detect decomposing human remains. These dogs are trained to give alerts when they smell human blood or other decomposing tissue. (TT:2/16: 17). The other scent tracking dogs deployed to the Avery property were trained to follow the scent of a living person when given an exemplar scent, e.g., the insole of a shoe belonging to Ms. Halbach, as was used in this case. The live scent tracking dogs' alerts establish that Ms. Halbach's vehicle, with her body still inside, was driven between Kuss Road and Mr. Avery's trailer and was in the wooded area south of the Kuss Road cul-de-sac. A human remains detection dog gave a trained alert in the wooded area south of the Kuss Road cul-de-sac, where a suspected burial site was discovered. Many dogs converged on this suspected burial site. A shallow ditch had been dug wherein plastic similar to a tarp was discovered. Sgt. Colborn persuaded everyone it was not a burial site, but no evidence supported that conclusion. Other scent tracking dogs led their handlers through the Radandt Pit, traveling from the place Ms. Halbach's RAV-4 was discovered to Jambo Creek Road, where a new witness observed a vehicle matching the description of Ms. Halbach's enter the Radandt and Manitowoc County Pits prior to its discovery on November 5, 2005. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46) ("11/7/05 WSCL Report regarding Suspected Burial Site," attached and incorporated herein as P-C Exhibit 82).
252. Mr. Hillegas was aware of Sheriff Pagel's intention to conduct aerial surveillance of the Avery and surrounding properties on November 4, 2005, to search for Ms. Halbach's vehicle. Mr. Kratz admitted that the RAV-4 was not visible in footage taken during the November 4, 2005, aerial surveillance. (TT:3/14:53). After the flyover ended around 6:00 p.m. on November 4 (11/4/05 CCSD Report, attached and incorporated herein as P-C Exhibit 63, STATE 1244), the killer drove Ms. Halbach's vehicle to the southeast corner of the Avery property. A new witness describes seeing a vehicle similar to Ms. Halbach's RAV-4, followed by a white jeep, enter the Radandt Pit from Jambo Creek Road using an access road immediately south of his house. Only the white jeep returned. (See ~~ 290- 291, inf,-a).
253. The killer parked the RAV-4 in the southeast corner of the Avery property on a ridge overlooking a pond. The killer parked the RAV-4 facing west although the vehicles surrounding the RAV-4 all faced east and tried to conceal the RAV-4 using tree branches, cardboard boxes, and a rusty car hood as an explanation for why the car was not seen in the flyover video.
254. The killer returned to the Avery property with Sgt. Colborn in the evening on November 4, 2005, under the pretense of helping Sgt. Colborn search for Ms. Halbach's vehicle. Mr. Avery's brother Chuck told police that on November 4 he saw unidentified headlights in the salvage yard that evening. (P-C Group Exhibit 10, STATE 109). Sgt. Colborn, without probable cause for a search warrant for the Avery property, unwittingly relied upon the killer, a civilian, to find Ms. Halbach's vehicle on the Avery property.
Above are images captured by Google Maps in September 2009 of Andy Colborn's driveway, and in his driveway is a 1999 white Isuzu Rodeo (SUV).
255. The individual who helped Sgt. Colborn to the RAV-4 on the Avery property was most likely the killer because he was able to enter the Avery property and quickly located the vehicle in the dark or with limited lighting. His words "It's hers," shouted out when he looked in the vehicle and clearly recognized her personal effects, established that he was a close friend of Ms. Halbach. Sgt. Colborn called MCSD dispatch to confirm Ms. Halbach's license plate number. (Trial Exhibit 212, Track 3). The dispatcher who answered Sgt Colborn's call usually worked from 2:00-10:00 p.m. (MCSD work dispatch records for 2007, attached and incorporated herein as P-C Exhibit 65). At 7:20 p.m. on November 3, 2005 Chuck called Mr. Avery about seeing headlights in the area where Ms. Halbach's vehicle was found. (Page from Steven Avery's Phone Records, P-C Exhibit 10, STATE 1586; Pages from MCSD Summary Report to verify Chuck's phone number, P-C Exhibit 11, STATE 93). By the time Mr. Avery went to check out this sighting, the headlights were off. Mr. Avery called Chuck back at 7:25 pm to report that he could not see the headlights. The headlights were from Sgt. Colborn's personal vehicle and he had a friend of Ms. Halbach with him to search the Avery property without a search warrant because he did not have probable cause to be on the Avery property at that point in time. (Enhanced Audio Clip From Trial Exhibit 212, Track 3, attached and incorporated herein as P-C Exhibit 66).
Mr. Hillegas' Activities After Ms. Halbach's Death
256. In the days following Ms. Halbach's disappearance, Mr. Hillegas spearheaded the citizen search for Ms. Halbach. (TT:2/13:162). Mr. Hillegas misrepresented his identity when he became the leader of the search. (Ryan "Kilgus" Map, attached and incorporated herein as P-C Exhibit 67, State_1_3783). Mr. Hillegas continued to misrepresent his true identity as evidenced by Wisconsin Department of Justice Report of November 16, 2005 in which he was still described as "Ryan Kilgus" and "Avery close friend of Teresa's." At that time, Mr. Hillegas provided addresses for where Ms. Halbach donated blood and plasma and addresses of her doctors including a cardiologist, an OB/GYN, and a dermatologist. Mr. Hillegas also provided a phone number for Ms. Halbach's pharmacy. (Wisconsin Department of Justice Report of November 16, 2005 pages STATE 744-46, attached and incorporated herein as P-C Group Exhibit 64).
257. Mr. Hillegas made maps for searches and directed volunteers as to where they should be looking for Ms. Halbach. (TT:2/13: 164-165). He also made a hand-drawn sketch of his investigation, noting that he found a condom wrapper on the corner of the lot by the first house on Jambo Creek Road. (Ryan "Kilgus" Map, P-C Exhibit 67). Mr. Hillegas directed Pam to search the Avery property and gave her the phone number of the direct line to Manitowoc Sheriff's Department in case she found anything. (TT:2/13:215) ("11/5/05 CCSD Interview of Pamela Sturm"), attached and incorporated herein as P-C Exhibit 81). Mr. Hillegas gave other search parties only maps, but he gave Pam a camera in anticipation that she would be the one to find the RAV-4. (TT:2/13:194; Affidavit of Gregg McCrary, P-C Exhibit 42, r 19).
258. After Ms. Halbach's death and despite his prior abusive relationship with her, Mr. Hillegas moved into the house shared by Mr. Bloedorn and Ms. Halbach while the searches were ongoing in order to maintain tighter control over investigators' access to Ms. Halbach's belongings and home. Mr. Hillegas was present almost every time investigators entered Ms. Halbach's home, even months after Ms. Halbach was killed, and frequently directed investigators to items of evidentiary value, such as her dirty clothing including lingerie, the boxes for her phone and camera, and medical records. (11/14/05 CCSD Report By Sgt. Tyson, PC Exhibit 55, STATE 1466; 12/1/05 CCSD Report by Inv. Wiegert, attached and incorporated herein as P-C Group Exhibit 68, STATE, 2759). It is reasonable to conclude that he would also have had access to Ms. Halbach's sub-key and given it to law enforcement to facilitate the sub-key being planted by Sgt. Colborn and Lt. Lenk.
259. In addition to maintaining control over Ms. Halbach's home and possessions, Mr. Hillegas personally searched property surrounding the Avery Salvage Yard and entered the salvage yard on multiple occasions. Even after November 5, 2005, the police allowed Mr. Hillegas through checkpoints to come and search the area. (TT:2/13: 195). On November 7, 2005, Mr. Hillegas accessed the Avery property from 9:03 a.m. to 9:53 a.m. (Crime Scene Sign-in/sign-out Logs, attached and incorporated herein as P-C Group Exhibit 69, STATE 6124-25). Mr. Hillegas made a second entry to the Avery properly on November 7, 2005, exiting the property at 4:28 p.m. (Crime Scene Sign-in/Sign-out Logs, P-C Group Exhibit 69, STATE 6130). Suspiciously, Mr. Hillegas never logged into the property when he entered the second time, meaning there is no way to know when he arrived or how long he had access to the property. (Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 20). This access to the salvage yard would give Mr. Hillegas opportunity to then plant the bones of Mr. Halbach, and her electronic devices, on November 6 and 7, now that the investigation was already focused on Mr. Avery. On at least one occasion, Mr. Hillegas also accessed the Avery and surrounding properties using a fake name. (Ryan "Kilgus" Map, P-C Exhibit 67, STATE 1_3783). This would also explain why, despite previous searches of the Avery and Janda burn barrels, bones were not discovered until November 8, 2005.
260. Mr. Hillegas was not asked to provide an alibi. (TT:2/13:194). When asked by police about his last interactions with Ms. Halbach, Mr. Hillegas testified that on October 30, 2005, he dropped something off for Ms. Halbach at her house. Suspiciously, Mr. Hillegas does not recall what he delivered to Ms. Halbach nor can he remember anything about what time of day it was when he went to Ms. Halbach's residence even though this was supposedly the last time when he saw Ms. Halbach alive. (TT:2/13:180; Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 18).
261.At first, Mr. Hillegas told law enforcement that he was just a friend of Ms. Halbach's. (TT:2/13: 189). Despite authorities eventually learning that Mr. Hillegas was Ms. Halbach's ex-boyfriend, he testified that he was never treated like a suspect in any way. (TT:2/13:195; Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 25).
262. On the afternoon and evening of November 4, 2005, Mr. Hillegas received twenty-two phone calls from a number or numbers with no identifiers. (Ryan Hillegas Phone Records, P-C Exhibit 57, p. 10). It is reasonable to conclude that law enforcement officers were calling Mr. Hillegas in connection with conducting an illegal search of the Avery Salvage Yard using Mr. Hillegas to access the property.
263. In his pre-trial hearing testimony, Mr. Hillegas stated that although he was not sure how many times he talked with Sheriff Pagel on November 4, 2005, they spoke at least once. (MHT:8/9/06:99). Mr. Hillegas did not recall whether he had contact with Inv. Wiegert on November 4, 2005. (MHT:8/9/06:100-101).
264. On November 5, 2005, with information obtained from law enforcement in twenty-two unrecorded calls on November 4, 2005, Mr. Hillegas directed Pam to search Avery's Auto Salvage. While Mr. Hillegas provided only maps and missing person posters to other citizen searchers, Mr. Hillegas provided Pam and her daughter Nikole, the only searchers allowed access to the Avery Salvage Yard, with a digital camera and Calumet County Sheriff Pagel's direct line. Clearly, Mr. Hillegas knew that Pam would discover Ms. Halbach's vehicle. Pam located Ms. Halbach's vehicle on the Avery salvage yard - among 4000 other vehicles on the forty acres of uneven topography - within thirty minutes of her arrival, a true statistical improbability. It is clear that Pam was provided information pertaining to the location of Ms. Halbach's vehicle by Mr. Hillegas. (TT:2/13:168-69; Affidavit of Gregg McCrary, P-C Exhibit 42, ~ 19).
Trial Defense Counsel Failed to Properly Investigate a Variety of Topics: Sgt. Colborn's Dispatch Call; Timelines; Voicemail Deletions; Items from Maribel Park; Suspected Burial Site; Veracity of Police Reports; Witness to the RAV-4 Planting on November 4
Applicable Case Law Re: Trial Defense Counsel's Duty to Investigate
265. In State v. Thiel, 264 Wis. 2d 571 (2003), the Wisconsin Supreme Court granted post-conviction relief after the defense attorney at trial failed to conduct a significant investigation.There, the defendant set forth precisely what would have been revealed had the defense attorney conducted an investigation consistent with the defendant's constitutional right to counsel. As in Thiel, relief is warranted. Thiel also supports Mr. Avery's position that relief is warranted because his trial defense attorneys were ineffective in failing to properly review the discovery prior to Mr. Avery's trial. In Thiel, the defendant's allegation that his trial attorney had not reviewed all of the discovery constituted an additional basis for the Supreme Court to grant relief. The same result is compelled here.
Trial Defense Counsel's Failure to Investigate and Establish the Correct Timing of Sgt. Colborn's Dispatch Call and Discovery of the RAV-4
266. On November 4, 2005, Sgt. Colborn discovered Ms. Halbach's vehicle and called dispatch, on a personal line (TT:3/15:74-78), to confirm Ms. Halbach's license plate number. (TT:2/20: 180-182). Audible in a recording of Sgt. Colborn's call to Manitowoc dispatch regarding the victim's plate number, a third party states, "it's hers." (Enhanced Audio Clip from Track 3 of Trial Exhibit 212, P-C Exhibit 66).
267. Sgt. Colborn's dispatch call was produced to trial defense counsel among other calls recorded by Manitowoc County Sheriffs Department on a CD. The recordings, which are labeled "Track l" through "Track 30," give no outward indication of when they were left. However, based upon a review of the content of the recordings, it is apparent that the recordings are organized chronologically on the CD.
268. Sgt. Colborn's dispatch call was titled "Track 3." The preceding recording, "Track 2," is a call to Manitowoc Dispatch from an unnamed officer regarding George Zipperer. The officer requested a criminal records check of George Zipperer from the dispatcher. It is reasonable to conclude that this call was placed by one of the MCSD officers who were with CCSD Det. Dedering before they proceeded to the Zipperers on November 3, 2005. Therefore, it follows that Sgt. Colborn's call to dispatch occurred after he responded to the Avery property to make contact with Mr. Avery and after he drove back to the MCSD. (TT:2/20:75-78.) Further, based upon the order with which Inv. Dedering organized his report, Sgt. Colborn's call to dispatch occurred after he (Sgt. Colborn) informed the officers assembled at the MCSD about his contact with Mr. Avery.
269. Sgt. Colborn's explanation that he called MCSD dispatch to confirm information obtained from CCSD Inv. Wiegert (TT:2/20: 184-85) is contradicted by the chronological order of the MCSD dispatch calls as produced to trial defense counsel. Sgt. Colborn testified that he placed this call to dispatch after speaking with Inv. Wiegert about Ms. Halbach. (TT:2/20: 184-85). Sgt. Colborn testified that he spoke with Inv. Wiegert while he was driving from the Avery property to MCSD after making contact with Mr. Avery. (TT:2/20:77-78). However, based upon the chronological organization of the MCSD dispatch calls as produced to trial defense counsel, Sgt. Colborn called dispatch after meeting the assembled officers at MCSD, long after leaving the Avery property and speaking with Inv. Wiegert.
270. After departing the MCSD for the Zipperers property, Sgt. Colborn had no viable reason to call MCSD dispatch regarding Ms. Halbach's vehicle. From the time Sgt. Colborn arrived at the MCSD to the time he checked out and returned home, Sgt. Colborn was with at least Det. Remiker and Inv. Dedering, both of whom could have confirmed information regarding Ms. Halbach's vehicle.
271.Further, Sgt. Colborn placed this call from his personal phone, not his squad car's radio. Sgt. Colborn testified that after completing contact with the Zipperers, he checked out at MCSD, which would have included leaving his squad car in the secure MCSD lot, and drove his personal vehicle home. (TT:2/20/80). If Sgt. Colborn was on-duty and in his squad car, it would be reasonable to expect transmissions to and from MCSD dispatch to come over the radio. Because Sgt. Colborn called dispatch from his personal phone, it is reasonable to conclude that he made the call on Friday November 4, 2005, his day off.
272. Sgt. Colborn confirmed the identity of Ms. Halbach's vehicle by calling MCSD dispatch on his cell phone around 7:30 p.m. on November 4. (MCSD Work Records, P-C Exhibit 65). Sgt. Colborn was with Mr. Hillegas who led him to Ms. Halbach's vehicle, which had been previously planted by Mr. Hillegas on the afternoon of November 4, 2005, after a failed attempt to plant it closer to Mr. Avery's residence on November 3, 2005. Realizing such a call would be recorded, Sgt. Colborn removed the license plates from Ms. Halbach's vehicle to conceal that he had actually located the vehicle at the point in time when he made the call about the license plate. ("Timothy Austin Overlay of Location of License Plates ," attached and incorporated herein as P-C Exhibit 80).
273. Current post-conviction counsel, using new telephone records of Ms. Halbach, has reconstructed the correct timeline and route that Ms. Halbach took on October 31, 2005. (Ms. Halbach's New Cell Records, P-C Exhibit 72 11 ): ...
TRIAL DEFENSE COUNSEL FAILURE TO INVESTIGATE
Trial Defense Counsel's Failure to Construct an Accurate Timeline for Mr. Avery's Activities on October 31, 2005
274. Mr. Avery has given an affidavit that the following is the correct timeline for his activities on October 31, 2005:
a. 8:12 a.m.: Mr. Avery called AutoTrader to schedule an appointment for his sister Barb Janda. According to Angela Schuster (" Ms. Schuster "), manager of the AutoTrader office, Mr. Avery was already linked to Barb's husband Tom Janda's AutoTrader account.
b. 11:04 a.m.: Mr. Avery called AutoTrader from his landline (920-755-4860) (Toll Free Records, P-C Exhibit 74), which was linked in the AutoTrader records to Tom Janda's account. (11/6/05 DCI interview of Angela Schuster ("11/6/05 Schuster Interview"), attached and incorporated herein as P-C Exhibit 75). Mr. Avery confirmed that a photographer was coming to the Avery property to photograph the Janda van and that the photographer would be arriving at approximately 2:00 p.m. Mr. Avery confirmed the address of the Barbara Janda appointment as being 12932 Avery Road. (Affidavit of Steven Avery, P-C Exhibit 4). At this point in time, there can be no question that Ms. Pliszka knew that the appointment, scheduled at 8:12 a. m. was made by Mr. Avery and that it was to take place at the Avery property. The State omitted Mr. Avery's call to Auto Trader at 11:04 p.m. from its timeline to the jury. (Trial Exhibit 360).
c. 2:24 p.m.: Mr. Avery called Ms. Halbach to see when she would be arriving. (Affidavit of Steven Avery, P-C Exhibit 4).
d. 2:31 p.m.: Ms. Halbach arrived at the Avery property. Mr. Avery recalls that when he looked out of his trailer window, he saw Ms. Halbach snap one photograph of the Janda van. Mr. Avery put on his shoes and went outside. Ms. Halbach began walking towards Mr. Avery's trailer, but when she saw Mr. Avery, she waved and turned around to go to her car to get his magazine. When Mr. Avery approached the car, Ms. Halbach was in the driver's seat with the door open and the engine running. Mr. Avery approached the driver's door which Ms. Halbach left open and handed Ms. Halbach cash totaling $40.00. Ms. Halbach handed an AutoTrader magazine to Mr. Avery. Mr. Avery remembers there was no mud splattered on Ms. Halbach's car, or visible damage to the driver's side bumper or parking light of her vehicle, and the back seats were in the upright position. Ms. Halbach turned left on Highway 147 after leaving the Avery property. (Affidavit of Steven Avery, P-C Exhibit 4).
e. 2:35 p.m.: Mr. Avery read that AutoTrader advertised for sale front-loaders. He called Ms. Halbach to ask her to come back to his property in order to take a photograph of a loader that he wished to sell. Mr. Avery hung up before Ms. Halbach picked up the phone because he wanted to go see Bobby. (Affidavit of Steven Avery, P-C Exhibit 4).
f. 4:35 p.m.: Mr. Avery called Ms. Halbach again at 4:35 p.m. that evening to set up an appointment for her to photograph the front-loader to advertise it in Auto Trader. (Affidavit of Steven Avery, P-C Exhibit 4). Mr. Avery's call went to the automated voicemail.
g. 5:36 p.m.: Mr. Avery's girlfriend Jodi called Mr. Avery from jail. The couple spoke for fifteen minutes, the maximum time allowed from jail phones. These calls were recorded by the jail. (Jail Phone Log, attached and incorporated herein as P- C Exhibit 76, STATE 1 _9308).
h. Around 7:00 p.m.: Mr. Avery had a bonfire. The fire burned for about two or two and a half hours. His nephew Brendan came over as well. They burned brush. (Affidavit of Steven Avery, P-C Exhibit 4).
i. 8:57 p.m.: Jodi called Mr. Avery from the jail phone and the couple again spoke for the maximum time allowed from jail phones. This call was recorded by the jail. Brendan went home before Jodi called and by the time Brendan left, the fire had burned down to ash. (Jail Phone Log, P-C Exhibit 76, STATE 1_9308).
Trial Defense Counsel Failed to Detect the Voicemail Deletions From Ms. Halbach's Phone
275. Ms. Halbach owned a Motorola Razr V3 in October 2005 (TT:2/13:256; Trial Exhibit 380). Her Cingular wireless plan included Basic Voicemail (Trial Exhibit 380), which could retain a maximum of twenty minutes of voice messages. (Cingular Basic Voicemail Features, P-C Exhibit 61).
276. On October 31, 2005, six minutes and forty-one seconds worth of voice messages were recorded to Ms. Halbach's voicemail. (New Cell Records, P-C Exhibit 72, lines 1337, 1338, 1339, 1343, 1349/50, 1356/57, 1353/54). As explained above, these messages would not have filled the voicemail box to capacity on October 31, 2005, because the voicemail box could hold twenty minutes of recorded messages. Of the seven messages recorded on October 31, 2005, only two were not deleted. Before October 31, 2005, 15 minutes and 21 seconds of Ms. Halbach's voicemail was occupied by voice messages.
277. At 8:17 a.m. on October 31, AutoTrader called Ms. Halbach and recorded a one minute and six second voice message to her voicemail box. (New Cell Records, P-C Exhibit 72, line 1337). At 9:46 a.m., AutoTrader called Ms. Halbach again, this time recording a 33 second voice message. (New Cell Records, P-C Exhibit 72, line 1338). At 10:44 a.m., Denise Coakley called and recorded a 37 second voice message to Ms. Halbach's voicemail. (New Cell Records, P-C Exhibit 72, line 1339) Daniel Morrow, an Auto Trader client, recorded a 43 second voice message at 11:25 a.m. (New Cell Records, P-C Exhibit 72, line 1343). At 12:29 p.m., Don Breckheimer, a friend of Ms. Halbach, called and left a forty second long voicemail. (New Cell Records, P-C Exhibit 72, line 1346). In total, four minutes and 39 seconds worth of voice messages were recorded to Ms. Halbach's voicemail on October 31, 2005, before Ms. Halbach began her AutoTrader appointments.
Trial Defense Counsel's Failure to Investigate and Request DNA Testing of Items Recovered from Maribel Caves Park
278. A civilian submitted items of potential evidentiary value that were allegedly found at Maribel Caves Park on November 6, 2005, to Sgt. Colborn. (CCSD Evidence/Property Custody Document, attached and incorporated herein as P-C Exhibit 77, STATE 1_6851). Investigators inventoried items of potential evidentiary value found at Maribel Caves Park on November 6, 2005, including torn women's blue jeans and a box containing personal lubricant. (CCSD Evidence/Property Custody Document, P-C Exhibit 77, STATE 1_6851). Neither of these items were subjected to forensic analysis by the State or trial defense counsel.
Trial Defense Counsel Failed to Investigate the Veracity of the Police Reports Regarding Joshua Radandt
279. When Mr. Radandt told investigators that he saw a fire on the Avery properly on October 31, 2005, he described the fire as appearing to be contained to a fifty-five gallon drum. (11/5/05 Handwritten Statement of Joshua Radandt, attached and incorporated herein as P-C Exhibit 84, STATE 7019). When investigators re-interviewed Mr. Radandt on November 10, 2005, they pressured him to describe the fire as large, behind Mr. Avery's garage, and in an open burn pit. Mr. Radandt never told investigators that the fire was behind Mr. Avery's garage. Mr. Radandt sets forth in his affidavit that he remembers seeing the fire, contained to a burn barrel, and between several trailers on the Avery property. (Affidavit of Joshua Radandt, attached and incorporated herein as P-C Exhibit 85).
280. Trial defense counsel failed to investigate Mr. Radandt's observation of a fire on the Avery property. Had trial defense counsel investigated Mr. Radandt, they would have learned that investigators had pressured Mr. Radandt to exaggerate the size of the fire and he refused to do so. If trial defense counsel had called Mr. Radandt as a witness his testimony would have demonstrated to the jury that the investigators knew Ms. Halbach's vehicle had been driven through his gravel pit and planted on Mr. Avery's property. The jury would also have learned of the efforts of the investigators to pressure Mr. Radandt to exaggerate the size of the fire.
Trial Defense Counsel's Failure to Investigate the Veracity of the Police Reports Re: Paul Metz Interview
281. An example of the reckless investigation by law enforcement in the police report memorializing the interview of Paul Metz ("Mr. Metz"), a cattle farmer who lived approximately four and one half miles north of the Avery property," heard a big 'whoosh'" that reminded him of starting a fire with gasoline on November 1, 2005. Reportedly, Mr. Metz told investigators that he then smelled a vile odor that he could not identify. The reports state that the smell was coming from the direction of the Avery property. (11/18/05 CCSD Interview of Paul Metz, attached and incorporated herein as P- C Exhibit 86, STATE 2768).
282. Mr. Metz, in his affidavit, describes a different scenario. The date was October 31, 2005, not November 1, 2005. As dusk approached, Mr. Metz heard a loud buzzing sound that reminded him of electrical wires surging. Mr. Metz then smelled an odor that reminded him of insulation burning. At no time did Mr. Metz hear a sound that reminded him of gasoline igniting or smell and indescribable odor. Mr. Metz is familiar with the smell of a burned body because he was a volunteer firefighter. At no time on October 31, 2005, or November 1, 2005, did Mr. Metz detect an odor of a burning body. Mr. Metz never told investigators that he heard a "whoosh" and does not know how that statement came to be attributed to him. (Affidavit of Paul Metz, attached and incorporated herein as P-C Exhibit 99).
283. Trial defense counsel failed to conduct any investigation of Mr. Metz. Had trial defense counsel investigated the story investigators attributed to Mr. Metz, they would have learned that investigators misrepresented Mr. Metz's detection of a foul odor on October 31, 2005.
Trial Defense Counsel Failed to Investigate the Evidence of a Possible Burial Site
284. Scent-tracking dogs, as well as human remains detection dogs, identified a burial site south of the Kuss Road cul-de-sac, approximately 500 yards west of Mr. Avery's residence. Human remains detection dogs, trained to give alerts on decaying human tissue and fluids, indicated the presence of human remains at the burial site. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 65).
285. Between November 5 and November 8, 2005, there were numerous opportunities for cadaver and scent dogs to discover the bones in the fire pit of Mr. Avery if they were indeed present there from the time Mr. Avery left the property early in the morning on November 5 to go to the family cabin in Crivitz. (Affidavit of Steven Avery, P-C Exhibit 4, iJ 30).
a. They searched around the general vicinity of Mr. Avery's residence but did not identify human remains or Ms. Halbach's scent. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 63-67).
b. Jill Cramer ("Ms. Cramer") testified that Brutus was a "high drive" cadaver dog, meaning that he is capable of finding very small scent sources from large distances and will persist in working despite inclement weather. (TT:2/16:7). Given that Brutus was drawn to the RAV-4 from the area of the cars along the elevated ridgeway south of the car crusher, which was approximately 205 feet from the RAV-4, it is reasonable to conclude that Brutus was capable of detecting a scent source within a range of at least 200 feet. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 63).
c. Ms. Cramer also testified that Brutus has an extremely low false negative rate and that he "very rarely has missed a source" during his years as a cadaver dog. (TT:2/16:37).
d. On November 6, sometime between 7:30 a.m. and 12:00 p.m., another cadaver dog, Trace, was assigned specifically to check the exterior of Mr. Avery's residence, including the driveway and red Plymouth van that Ms. Halbach had photographed. Trace identified no human remains on November 7. (Scent and Cadaver Dogs Reports, P-C Group Exhibit 46, STATE 64).
Therefore, if Ms. Halbach's remains were concentrated in the burn pit on November 5 when Brutus was searching around Mr. Avery's trailer, it is highly unlikely that he would not alert at that particular site.
286. The cadaver dog alerts on the attached map are as follows:
1) on Ms. Halbach's RAV-4 where it was discovered;
2) on several spent shell casings along the conveyor road at the southwestern edge of the Avery property ("11/8/05 CCSD Report STATE1376-77"), attached and incorporated herein as P-C Exhibit 87);
3) north of Alert 2, along the conveyor road at the southwestern edge of the Avery property;
10) in the same area as Alerts 2 and 3;
12) the potential burial site south of the Kuss Road cul-de-sac;
15) several burn piles in the area of large concrete slabs in the Manitowoc County gravel pit.
Additionally, the live scent dogs alerted in the area of brush and trees between Kuss Road and Mr. Avery's trailer and in the area of the berm on the west border of the Avery property. The State conspicuously avoided mentioning any of these alerts because they were not on the Avery property. Trial defense counsel failed to mention these alerts. (Map of Cadaver and Scent Dog Alerts, attached and incorporated herein as P-C Exhibit 90).
SCENT AND CADAVER DOGS
287. The WSCL field response team was dispatched to the burial site to take photographs and conduct an examination. (11/23/05 WSCL Field Response, attached and incorporated herein as P-C Exhibit 88, STATE 1616). However, it was Lt. Lenk and Sgt. Colborn, along with Sgt, Tyson, who performed the excavation of the burial site and reported that it was of no evidentiary value. (11/7/05 CCSD Report, attached and incorporated herein as P-C Exhibit 89, STATE 1338).
288. Based upon the scent dogs' interest in the suspected burial site, it is very probable that Ms. Halbach's body was buried at this location for a period of time after her death and before her body was burned.
Trial Defense Counsel's Failure to Locate and Interview Witness Who Observed the RAV-4 Being Driven onto Avery Property by Way of the Radandt Pit Prior to November 5, 2005
289. Wilmer Siebert, ("Mr. Siebert") observed a vehicle similar in color, size, and style to Ms. Halbach's RAV-4 enter the Radandt Pit using an access road immediately south of his house. Mr. Siebert's house is immediately north of the east entrance to the Radandt Pit off of Jambo Creek Road. After observing the vehicle enter the Radandt Pit, Mr. Siebert saw pictures of Ms. Halbach's vehicle on the news. Mr. Siebert remembers the vehicle he saw driving into the Radant Pit had the same spare wheel and wheel cover on the rear cargo door as Ms. Halbach's RAV-4. Mr. Siebert observed a white Jeep accompanying the other vehicle into the Radandt Pit. Mr. Siebert remembers the paint was chipping off of the hood of the white Jeep. Mr. Siebert remembers the two vehicles were traveling at a high rate of speed when they drove down Jambo Creek Road and turned east onto the gravel road that leads into the gravel pits. Shortly after the two vehicles entered the Radandt Pit, Mr. Siebert observed the Jeep, unaccompanied by the other vehicle, exit using the same gravel road immediately south of Mr. Siebert's house. (Affidavit of Wilmer Siebert, attached and incorporated herein as P-C Exhibit 98). Mr. Siebert's daughter, Vicki Siebert ("Ms. Siebert"), called Manitowoc County dispatch to report the activity observed by Mr. Siebert. (Trial exhibit 218, Track 27). Suspiciously, the recording of this call was not turned over to trial defense counsel.
290. In addition to Mr. Siebert's affidavit witnessing the RAV-4 being brought onto the Avery property through the Radandt Pit, the scent and cadaver dogs corroborate Mr. Siebert's observations that the RAV-4 was brought into the Radandt Pit from Jambo Creek Rd. and driven to various places in the Radandt Pit. (Scent and cadaver dog reports and maps, attached and incorporated herein as P-C Group Exhibit 46)
291. The State misrepresented to the jury that it was impossible to access the Avery property from the the south (TT:3/14:53-54), where the Radandt Pit borders the Avery yard. Although trial defense counsel claimed that the Avery property could be accessed through the Radandt property, they failed to rely on the dog tracks to corroborate their claim that this is exactly how the vehicle was moved onto the Avery property. (Affidavit of Joshua Radandt, P-C Exhibit 85). Ms. Halbach's vehicle was moved from the Radandt Pit to the Avery property using either the Jambo Creek entrance and road east of the conveyor road, or the conveyor road that led onto the Avery property from the Radandt property. (TT:2/15:75; 11/7/05 CCSD Report, attached and incorporated herein as P-C Exhibit 97, STATE 1342).
BRADY VIOLATIONS
Investigators Withheld the Zipperer Voicemail CD which contained favorable and exculpatory evidence for Mr. Avery
296. When Ms. Halbach first arrived in the vicinity of the Zipperers' residence she made a phone call which was answered by the Zipperers' answering machine. Allegedly, Ms. Halbach left a voicemail that she could not locate the Zipperer residence. On November 3, when the Zipperers were interviewed at 9:30 p.m., they told the investigators that Ms. Halbach had left a voice message on their answering machine. The voicemail was listened to by Det. Remiker of the MCSD and it was copied by MCSD Detective Dennis Jacobs ("Det. Jacobs") onto a CD. (11/6/05 CCSD Report, attached and incorporated herein as P- C Exhibit 101, STATE 1311; 11/3/05 CCSD Report, P-C Exhibit 73, STATE 2497).
297. The CD of Ms. Halbach's voicemail recording on the Zipperer answering machine was never turned over to trial defense counsel and has allegedly disappeared. Current post-conviction counsel, through their investigators, sent a FOIA request for the CD and neither Manitowoc nor Calumet Counties claimed to have possession of the voicemail CD. (P-C Group Exhibit 70). Furthermore, although trial defense counsel's discovery requests would have encompassed the CD, it was never turned over by Mr. Kratz in discovery. Mr. Fallon confirmed in a letter to current post-conviction counsel on April 20, 2017, that neither Calumet nor the Manitowoc Sheriffs Departments have been able to locate the CD of Ms. Halbach's voicemail left on the Zipperer answering machine. (4/20/2017 Letter fron~ AAG Thomas Fallon, P-C Exhibit 25).
298. Suspiciously, Mr. Kratz never played the recording of the 2:12 p.m. voicemail for the jury. It is reasonable to conclude that Mr. Kratz concealed the 2:12 p.m. voicemail because it confirmed that the Zipperers' residence was Ms. Halbach's last stop. Corroboration of this assertion is found in a recorded conversation between Inv. Wiegert and Det. Remiker on November 5, 2005, about the sequence of Ms. Halbach's appointments on October 31, 2005. In that conversation, which occurred after interviews with Mr. Schmitz, Mr. Avery, and Mr. Zipperer, they concluded that Ms. Halbach's first appointment was with Mr. Schmitz, her second appointment was with the Averys, and her third appointment was with the Zipperers. (11/5/05 Wiegert/Remiker recording, P-C Exhibit 71). Obviously, Inv. Wiegert and Det. Remiker based their conclusion on the Zipperer voicemail left by Ms. Halbach, which was listened to by investigators on November 3, 2005, at the Zipperer residence and recorded to a CD on November 6, 2005 (11/3/05 CCSD Report, P-C Exhibit 73, STATE 2497), and having interviewed both Mr. Avery and Mr. Zipperer. Clearly, the destruction and/or concealment of Ms. Halbach's voicemail to the Zipperers' leads to the reasonable conclusion that her voicemail refuted Mr. Kratz's timeline and so it was concealed from trial defense counsel.
299. Investigators concealed the voicemail left by Ms. Halbach on the Zipperers' answering machine because it refuted their theory that Ms. Halbach's final appointment was Mr. Avery.
Investigators Concealed the Amount of Gas Remaining in the RAV-4's Fuel Tank from Trial Defense Counsel
300. Although the odometer reading from Ms. Halbach's vehicle was noted at the WSCL, no reference was made by law enforcement or the WSCL to the amount of gas remaining in the RAV-4's fuel tank, which would have provided vital information about how far the car had traveled since its tank was filled to capacity on October 29, 2005. When Ms. Halbach used her credit card to purchase $38.06 worth of, presumably, fuel from an Exxon station in De Pere, WI. (11/4/05 CCSD Report, attached and incorporated herein as P-C Exhibit 103, STATE 2506). The average price of a gallon of fuel in the United States was $2.48 on October 31, 2005. (Environmental Impact Assessment Data, attached and incorporated herein as P-C Exhibit 91). According to manufacturer specifications, the fuel capacity of a 1999 Toyota RAV-4 is 15.3 gallons. (RAV-4 Manual, P-C Exhibit 1). Assuming Ms. Halbach paid $2.48 per gallon of fuel on October 29, 2005, she would have spent $37.94 to fill her tank to capacity. It is reasonable to conclude that Ms. Halbach completely filled her gas tank on October 29, 2005. Mr. Fallon has confirmed on April 20, 2017, that the State failed to determine and document the gas level remaining in Ms. Halbach's vehicle when it was discovered on the Avery's property. (4/20/17 Letter from AAG Thomas Fallon, P-C Exhibit 25). Clearly, the State did not want the mileage revealed because it would have completely refuted its theory that Ms. Halbach was killed on the Avery property and demonstrated that Ms. Halbach and her car were driven many more miles after she left the Avery property.
The Flyover Video was Edited to Conceal that the RAV-4 Was Not Present on the Avery Property Before 6 p.m. on November 4
301. Wendy Baldwin ("Ms. Baldwin") and Sheriff Pagel were in the air for around four hours (11/4/05 CCSD Report, P-C Exhibit 63, STATE 1244), yet the State produced only three minutes of footage. Mr. Kratz saw the unedited flyover video and knew that the RAV-4 was not there at that time, but knew that the State's case might fail if the RAV was not present before 6 p.m. on November 4. The video was intentionally edited to conceal the fact that the RAV-4 was not present at the time of the flyover on November 4. (11/4/05 CCSD Report, P-C Exhibit 63, STATE_1244).
Investigators Concealed Their Knowledge that Ms. Halbach's RAV-4 was Driven Onto Mr. Radandt's Property
302. Mr. Radandt has provided an affidavit to current post-conviction counsel that State's the following: "At that time, I was told by the Department of Justice agents that they believed Teresa Halbach's vehicle was driven to the Kuss Road cul-de-sac by driving west through an empty field, then south down the gravel road past my hunting camp until reaching an intersection with a gravel road that ran northeast into the Avery property. They told that me that they believed Teresa Halbach's vehicle turned northeast onto that gravel road and entered the Avery property at its southwest corner. It is my understanding that this theory was based on the work of scent tracking dogs." (Affidavit of Joshua Radandt, P-C Exhibit 85).
DOJ Investigators never authored a report documenting their conversation with Mr. Radandt about the RAV-4 being drive from his property and planted on Mr. Avery's property. Mr. Kratz did not call Mr. Radandt as a witness at Mr. Avery's trial. The failure to produce this evidence to trial defense counsel was a clear Brady violation because this information could not only have been used to impeach the State's witnesses, it also would have provided exculpatory evidence for Mr. Avery that the RAV-4 was planted on his property.
NEW EVIDENCE
New Scientific Evidence Demonstrates that the Damaged Bullet (FL) in Mr. Avery's Garage was Not Shot Through Ms. Halbach's Head Causing Her Death as the State Contended
303. Mr. Kratz claimed that Ms. Halbach was killed by two gunshot wounds, one to the left side of her head and one to the back of her head, while she was lying down on the garage floor. (TT:3/15:98). Dr. Eisenberg described two entrance wounds to Ms. Halbach's head but no exit wounds. Two damaged bullets were eventually found on Mr. Avery's garage floor. (TT:3/15:98). Mr. Kratz relies upon Dr. Eisenberg who testified that the defect in the parietal bone, above the left ear, shows the characteristic sign of an entrance bullet wound and a second defect in the occipital region shows Ms. Halbach was also shot in the back of the head with a .22 caliber gun. (TT:3/14:128). Additionally, Mr. Kratz relied upon Mr. Olson, the State's trace metal expert, who testified that x-rays of the skull defects in the parietal region showed particles oflead. (TT:3/14: 128).
304. Current post-conviction counsel has obtained the opinions of Mr. Haag, a renowned ballistics expert, and Dr. Palenik, the trace expert referred to above. Dr. Palenik, utilizing a 2016 scanning electron microscope, has determined that Item FL, the damaged bullet that the State claimed was shot through Ms. Halbach's skull and caused her death, was not shot through bone. Mr. Haag has concluded, to a reasonable degree of scientific certainty in the field of ballistics and illustrated by testing he has carried out, that the damaged bullet (Item FL) ... recovered from Mr. Avery's garage was never shot through Ms. Halbach's skull. The damaged bullet (Item FL), which was identified as a .22 caliber long rifle bullet, was comprised of such soft metal that there would be detectable bone fragments embedded in the damaged bullet if it had been fired through Ms. Halbach's skull. Because no bone fragments were identified in the damaged bullet (Item FL) over the course of its examination - including DNA and firearms/tool marks analysis - at the WSCL, it is Mr. I Haag's opinion, to a reasonable degree of scientific certainty if the field of ballistics, that the damaged bullet (Item FL) was never fired through Ms. Halbach's skull. (Affidavit of Luke Haag, P-C Group Exhibit 92, 17)....
307. Mr. Haag conducted tests to illustrate that bone fragments would become embedded in .22 caliber long rifle bullets when fired through bone. Mr. Haag selected copper plated .22 caliber long rifle CCI Minimag® bullets for his experiment because fired copper plated CCI Minimag® casings were recovered from Mr. Avery's garage (TT:3/1: 106-107) and unfired copper plated CCI Minimag ® bullets were found in Mr. Avery's bedroom. (Trial Exhibit 246; TT:2/22:38-39) (Affidavit of Luke Haag, P-C Group Exhibit 92, 18).
308. Mr. Haag fired two copper plated CCI Minimag® .22 caliber long rifle bullets through approximately two millimeter thick flat bone and into a soft tissue simulant. Mr. Haag fired two other copper plated CCI Minimag® .22 caliber long rifle bullets through one sheet of approximately two millimeter thick flat bone, through five inches of soft tissue simulant, through a second section of approximately two millimeter thick flat bone, and into soft tissue simulant. Bone particles, embedded in the soft lead, were visible in a microscopic examination performed by Dr. Palenik for both the bullets fired through one thickness of bone and two thicknesses of bone (See 11 312-326). Dr. Palenik's examination supports Mr. Haag's op1mon that, to a reasonable degree of scientific certainty in the field of ballistics, the damaged bullet (Item FL) was not fired through Ms. Halbach's skull because there were no bone particles embedded in it when it was examined by WSCL analysts. (Affidavit of Luke Haag, P-C Group Exhibit 92).
309. Mr. Newhouse, a WSCL firearms examiner, analyzed the damaged bullet (Item FL), using a microscope. According to Mr. Newhouse's bullet worksheet (attached and incorporated herein as P-C Exhibit 93), Mr. Newhouse identified no trace evidence on the damaged bullet. If there were bone fragments embedded in the damaged bullet (Item FL), Mr. Haag would expect a reasonably competent firearms examiner to have identified them during their microscopical examination. Mr. Haag has concluded, upon review of Mr. Newhouse's trial testimony, that Mr. Newhouse is a reasonably competent firearms examiner who would have identified bone fragments embedded in the damaged bullet had they been present. Because Mr. Newhouse did not identify any embedded bone fragments during his microscopical examination of the damaged bullet (Item FL) it is the opinion of Mr. Haag, to a reasonable degree of scientific certainty in the field of ballistics, that the damaged bullet (Item FL) was never fired through Ms. Halbach's skull. (Affidavit of Luke Haag, P-C Group Exhibit 92).
310. Ms. Culhane testified that she washed the damaged bullet in a test tube filled with reagent. (TT:2/23:163-64). Before Mr. Newhouse analyzed the damaged bullet, Ms. Culhane washed the bullet to extract DNA from it. Ms. Culhane's wash would not have dislodged or otherwise removed the embedded particles from the damaged bullet. The particles, therefore, would have remained in place and would have been visible to Mr. Newhouse during his examination. (Affidavit of Dr. Palenik, P-C Group Exhibit 48l0(b)).
Microtrace Examination of Damaged Bullet (Item FL) with 2016 Stereomicroscopy Digital Video Microscropy and Scanning Electron Microscopy and Energy Dispersive X-Ray Spectroscopy (SEMIEDS) Demonstrates that the Damaged Bullet (Item FL) was Never Shot Through Ms. Halbach's Skull
311. The purpose of Dr. Palenik's trace examination with a 2016 Stereomicroscopy Digital Video Microscropy and Scanning Electron Microscopy and Energy Dispersive X-Ray Spectroscopy (SEM/EDS) was to determine if bone could be detected on the surface of the damaged bullet (Item FL). ...
Dr. Palenik's Examination of the Damaged Bullet (Item FL)
318. On 23 May 2017, a damaged bullet (Item FL) was hand carried to Microtrace by Special Agent Jeff Wisch ("SA Wisch") of the Wisconsin Department of Justice. The bullet remained in the custody of SA Wisch during the analysis performed at Microtrace.
319. Dr. Palenik opened, photo-documented, and examined the damaged bullet (Item FL) using a combination of 2016 stereomicroscopy and digital video microscopy.
320. Dr. Palenik's examination revealed that the bullet surface was covered in debris exhibiting the following characteristics:
a. Wood fragments appear to be directly adhering to or embedded in the lead of the bullet. This later observation suggests that at least some of the wood was deposited when the energized bullet encountered a wooden object. Some of the fragments observed are individual particles of wood. One particle appears to be an agglomeration of woody fragments, possibly originating from a manufactured wood product such as chip or particle board. Isolation and analysis of these 142 particles would be required to identify the species or type of wood product.
b. A rounded red droplet (-. 073 mm 2) adjacent to a smaller red droplet (-0.005 mm 2) is present on one side of the bullet. The identity of this dried liquid is presently unknown. Based upon its color and the fact that the bullet was previously extracted for DNA, it seems unlikely that this is blood. The color, texture, and shape of the deposit suggests that the material may be paint. Regardless of its identity, the texture of the bullet in the area where the droplets are observed strongly suggests that the droplet was deposited after the bullet was fired and came to rest. This material could be identified if subjected to further analysis.
c. No particles consistent with bone were detected by an examination using 2016 stereomicroscopy or digital video microscopy.
d. A waxy substance covers a significant portion (-40%) of the leading surface of the bullet. According to Mr. Haag, this wax is used by firearms analysts to orient and hold bullets during their analysis.
e. Numerous fibers are observed adhering to the waxy substance. Most of these are colorless; however, red and black fiber fragments were also noted. Other white fibers not associated with the waxy surface were observed in association with the bullet. These fibers could be more specifically identified after isolation and further analysis.
321. Dr. Palenik notes that the criteria for classification of each material described above is based upon in situ observations and are not necessarily inclusive of all particle types that may be present.
322. The sample was examined without any further preparation in a JEOL 7100FT field emission scanning electron microscope with a 50 mm 2 Oxford SDD EDS detector. The base of the bullet was fixed upon a piece of conductive, double sided, carbon tape. An image of the bullet was obtained at 20 kV. The sample was examined by a combination of backscatter and secondary electron imaging at magnifications ranging from -50x to 2000x. Elemental maps were collected from various areas on the leading surface of the bullet that showed surfaces with exposed lead (i.e., away from the waxy deposit). The elemental maps were examined for areas with elevated levels of calcium and phosphorous. Each area analyzed was rotated toward the EDS detector to increase the number of x-rays detected. No areas with elevated levels of calcium and phosphorous were detected, indicating the absence of detectable bone. A few silicon-rich areas were noted, which may suggest the presence of silicate compounds (e.g., minerals).
Dr. Palenik's Opinion s Re: The Damaged Bullet (Item FL)
323. Dr. Palenik opines that "there is no evidence to indicate that the bullet passed through bone. In fact, the particulate evidence that is present strongly suggests an alternate hypothesis, which is that the trajectory of the fired bullet took it into a wooden object, possibly a manufactured wood product. Furthermore, the presence of red droplets deposited on the bullet suggests that the bullet had picked up additional contamination from its environment at some point after coming to rest (i e., droplets of potential red paint or a red liquid)." (Affidavit of Dr. Palenik, P-C Group Exhibit 48, 19).
324. Based upon these findings, it is Dr. Palenik's understanding that an investigator was sent by Kathleen Zellner & Associates, P. C., to the Avery garage to review the area for possible sources of the particulate types described above. It is Dr. Palenik's understanding that the following possible sources were identified:
a. Particle board in the garage with apparent bullet holes.
b. Red painted surfaces including a ladder in the garage and a red painted ceiling.
325. Each of the above listed materials observed on the bullet could be identified specifically. The potential sources for the particulate matter that were recently collected from the Avery garage could be directly compared to materials on the bullet. (Affidavit of Dr. Palenik, P-C Group Exhibit 48, ~ 20).
326. On June 2, 2017, Mr. James Kirby and Kurt Kingler, current post-conviction counsel's investigator and law clerk, collected wood and paint samples from the Avery garage. Mr. Kingler test fired .22 long rifles through the exterior garage wall and wood samples into the interior of the garage. Those samples have been submitted to Dr. Palenik for further tes ting to determine if the samples obtained on June 2, 2017, are, in fact, the source of the red particles and wood product observed by Dr. Palenik on the damaged bullet (Item FL). Dr. Palenik will supplement his affidavit after he completes testing of these items.
327. Mr. Johnson, the owner and previous resident of Mr. Avery's trailer, often fired his .22 caliber rifle into gopher holes near the doors of Mr. Avery's garage. Mr. Johnson would expect spent casings to be ejected into the garage and not picked up. Further, Mr. Johnson would expect damaged bullets or bullet fragments to end up in the garage. (Affidavit of Rollie Johnson, P-C Exhibit 7; Affidavit of Steven Avery, P-C Exhibit 4)
BRAIN FINGERPRINTING
Dr. Farwell is highly qualified to testify to the results of the brain fingerprinting analysis he conducted on Mr. Avery. Dr. Farwell received his B.A. from Harvard University and a Ph.D. in biological psychology from the University of Illinois. Dr. Farwell invented and developed brain fingerprinting through the course of research he conducted for the FBI, CIA, and United States Navy. His research has been published in leading peer-reviewed scientific journals in the field of forensic science, neuroscience, and psychophysiology. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, 12). 331.Moreover, Dr. Farwell's brain fingerprinting analysis meets the standards governing the admission of expert testimony set forth in Wisconsin Statute § 907.02( 1): ...
Briefly stated, brain fingerprinting detects information stored in the brain by measuring brainwave activity in response to certain stimuli, i.e., the P300, and/or the more recently developed P300-MERMER, effect. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, 110). 334. The methodology employed by Dr. Farwell in conducting his brain fingerprinting analysis of Mr. Avery is set forth in Appendix 1 to his report. ...
Brain Fingerprinting detects information stored in the brain. It does not claim to detect lies, truth-telling, guilt, innocence, or any past or present action or non-action. Brain Fingerprinting is applied in forensic settings to determine whether or not a suspect knows 148 specific salient information about a crime that is known only to the perpetrator and investigators, and would not be known to an innocent person. The purpose of Brain Fingerprinting is to determine scientifically whether the record stored in the suspect's brain matches the record of what actually took place when the crime was committed. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 5).
340. Brain Fingerprinting works by assessing - in real time - a subject's psychophysiological response to stimuli in the form of words or pictures presented on a computer monitor. As a forensic method, the test assess the subject's knowledge of a crime scene or of the instrumentalities or fruits of a crime, and it can also be used to assess knowledge of the particulars of an alibi scene or sequence of events. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 9).
341. Brain Fingerprinting uses electroencephalography (EEG) to measure a specific event- related potential known as the P300 - an electrical event in the brain beginning 300 milliseconds after exposure to a stimulus. The P300 is characteristic of the information processing that accompanies recognition of stimuli in comparison to a remembered context. Dr. Farwell has extended the analysis of this event-related potential farther in time to take account of additional information. This extension of the P300 is known as a "memory and encoding related multifaceted electroencephalographic response" (MERMER) or "P300-MERMER." (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 10).
342. If the subject is a witness to or perpetrator of the crime in question, his or her response to stimuli that embody accurate details of the crime will evoke a P300 response. The human brain emits a characteristic P300 (and MERMER) electrical response whenever the subject 149 responds to a stimulus by updating his or her memory context to take account of the stimulus. The P300 (and MERMER) response is not evoked when the stimulus is irrelevant to the subject's memory context.
343. These stimuli are crime- or situation-related words, phrases, or pictures are referred to as "probes." For the purposes of the Brain Fingerprinting test, probes are selected such that they contain information that is known only to the perpetrator and investigators, and has not been disclosed to the public. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 12-13).
344. In order for information detected in a suspect's brain to be useful to the trier of fact in determining whether or not the suspect was present when the crime was committed, a Brain Fingerprinting test must detect the presence or absence of information that is known only to the perpetrator and investigators. This must be information that is not known to the general public, has never been disclosed to the suspect after the crime, and thus would not be known to an innocent suspect. For example, information that the suspect knows from reading a newspaper, from interrogations, or from hearing testimony at trial is not applicable in a Brain Fingerprinting test. A finding that an individual knew such information would prove nothing about his participation in the crime. Knowledge of such information could be explained by his having read the newspaper, participated in the trial, etc. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 59).
345. Other items known to the person regardless of whether he or she was present at the crime ("targets") also evoke the P300 (and MERMER) response and permit Dr. Farwell to establish a baseline from which to compare the person's responses to the probes. Other stimuli that have no relevance either to the crime or to anything in the subject's memory ("irrelevants") establish a baseline for a flat response (no P300 or MERMER evoked), i. e., a response ( or lack of response) to unknown and irrelevant information. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 12).
346. The signals obtained from the subject's response to multiple presentations of probes, targets, and irrelevant stimuli are averaged using analytical tools that are standard in the field of EEG psychophysiology. In this way, an overall result is obtained that demonstrates whether the probes have evoked a P300 recognition response or a flat non- recognition response (i.e., the lack of a recognition response). (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 12). ...
However, previously unknown facts - that Ms. Halbach was behind her car and the cargo door was open when she was attacked - about the events surrounding the killer's attack on Teresa were not revealed to Mr. Avery at trial or in the preceding investigation and had not been revealed to Mr. Avery prior to Dr. Farwell's Brain Fingerprinting test on Mr. Avery. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 50).
Dr. Farwell's Brain Fingerprinting Test Results for Mr. Avery
353. On May 2, 2016, Dr. Farwell performed a Brain Fingerprinting test on Mr. Avery. The specific purpose of this test was to determine definitively and scientifically whether or not two specific features of the attack on Ms. Halbach were stored in Mr. Avery's brain:
a. Where the victim was in relation to her vehicle when the perpetrator attacked and wounded her behind her car.
b. The configuration of the victim's vehicle when the perpetrator attacked the victim: cargo door open. ...
(Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 57).
354. In Dr. Farwell's Brain Fingerprinting test, the subject's brain responses to targets provide a template for that subject's response to known, relevant information. The responses to targets are expected to elicit a large P300 brain response because the subject's brain is expected to have the target information stored. Dr. Farwell used the following target information to provide a template of Mr. Avery's response to known, relevant information: a. What kind of car did Ms. Halbach drive: Toyota RAV-4. Mr. Avery selected widely known answer from three options, the two irrelevants being "Saab 9 5" and "Volvo S40." b. What killed Ms. Halbach: .22 bullet. Mr. Avery selected the widely known answer from three options, the two irrelevants being "deep stream" and "golf club." (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 59, 62). ...
These results mean that scientific testing has determined with a 99 .9% statistical confidence that Mr. Avery does not know certain specific details about the attack on Ms. Halbach. This salient, crime-relevant information, which was experienced by the perpetrator when he committed the crime, is not stored in Mr. Avery's brain. Specifically, this information comprises the details that were revealed by the newly discovered blood- spatter evidence and embodied in the probe stimuli. This provides scientific evidence that Mr. Avery does not know specific critical, salient crime-relevant information regarding what actually took place at the time that the perpetrator attacked Ms. Halbach. (Affidavit of Dr. Lawrence Farwell, P-C Exhibit 100, ~ 69).
Microscope Examination of Hood Latch Swab
359. Dr. Palenik has used a microscope developed in 2016 to analyze the hood latch swab. Dr. Palenik has offered the opinion that the swab was not used to swab the hood latch. (Affidavit of Dr. Palenik, P-C Group Exhibit 24, ~ 10).
Source Testing of the Hood Latch Swab
360. Dr. Reich has applied newly developed DNA source testing methods to the hood latch swab, ruling out blood, saliva, semen, and urine as the source of Mr. Avery's DNA allegedly detected on the hood latch swab. Dr. Reich, through a series of experiments, has demonstrated that the DNA allegedly discovered on the hood latch was not the result of Mr. Avery touching the hood latch as he opened the hood. (Affidavit of Dr. Reich, P-C Group Exhibit 15, i 25-30).
Source Testing of Sub-key Demonstrated that the DNA of Mr. Avery on the Sub-key was Planted
361.Dr. Reich has determined that the source of the DNA on the key, Item C, was not blood, as the State implied to the jury. (TT:2/19: 132-33). Instead, Dr. Reich determined that the DNA extracted from the swab of the Toyota sub -key came from skin cells of Mr. Avery. However, Dr. Reich concluded that the DNA on Item C was planted because the amount of DNA detected by the WSCL was ten times greater than what Mr. Avery actually deposited on an exemplar sub-key by holding it. (Affidavit of Dr. Reich, P-C Group Exhibit 15, r 31).
362.For the purposes of Dr. Reich's experiment, Mr. Avery held the exemplar sub-key in his hand for 12 minutes. The exemplar sub-key was then transported to Dr. Reich's lab, where it was swabbed. The exemplar sub-key, which Mr. Avery was touching for 12 minutes, yielded ten times less DNA than what the WSCL extracted from the Toyota sub-key, Item C. Therefore, Dr. Reich has concluded that Mr. Avery did not deposit his DNA on the sub-key recovered from his bedroom.
363. Mr. Avery recalls that the law enforcement photos taken of bathroom show that his toothbrush had been taken from the bathroom.
364. Dr. Reich has offered the opinion that, to a reasonable degree of scientific certainty, Mr. Avery's DNA on the Toyota sub-key, Item C, was planted frorn a DNA-rich source, such as Mr. Avery's toothbrush. (Affidavit of Dr. Reich, P-C Group Exhibit 15, r 37)
Applicable Case Law Re: Planting and Fabrication of Evidence Violated Mr. Avery's Due Process Rights
365. Mr. Avery has demonstrated that forensic evidence was planted to incriminate him. Specifically, Mr. Avery has demonstrated that the following evidence was planted: the victim's DNA on the damaged bullet (Item FL); his blood in the RAV-4; his DNA on the victim's key; the victim's electronic components in the burn pit; the victim's bones in the bum pit and bum barrels; and his DNA on the hood latch swab. This planting of evidence is equivalent to the fabrication of evidence. No matter what the label, the result is the same. Mr. Avery was convicted on false evidence. The State presented evidence that Mr. Avery was forensically tied to the murder. The jury likely believed that evidence as illustrated by its guilty verdict, but current post-conviction counsel has demonstrated that evidence was false. Therefore, Mr. Avery's due process rights were violated by the State's presentation of the false evidence and his conviction must be vacated.
366. A conviction obtained through the use of false evidence violates due process as guaranteed by the 14th Amendment. State v. Yancey, 32 Wis. 2d 104, 113, (1966); State v. Nerison, 136 Wis. 2d 37, 54 (1987). ...
Mr. Avery has conclusively demonstrated that evidence was planted and fabricated against him. The fact that that evidence was false evidence has been established through new information discovered pursuant to the recent investigation. The application of new technology that did not exist at the time of his conviction has revealed that the evidence presented at the trial to cause his conviction was false. For that reason, Mr. Avery should be granted relief because the new evidence demands the conclusion that Mr. Avery's conviction is the result of a manifest injustice committed against him.
369. Due process may require granting a new trial under § 974 .06 on the basis of evidence discovered after the time for bringing post-verdict motions has passed. Due process warrants a new trial when newly discovered evidence meets the following criteria: (1) The evidence must have come to the moving party's knowledge after a trial; (2) the moving party must not have been negligent in seeking to discover it; (3) the evidence must be material to the issue; (4) the testimony must not be merely cumulative to the testimony which was introduced at trial; and (5) it must be reasonably probable that a different result would be reached on a new trial. State v. Boyce, 75 Wis. 2d 452, 457 (1977). If the above criteria are met, the court will conclude that a manifest injustice has occurred, warranting relief. State v. Plude, 310 Wis. 2d 28 (2008).
Applicable Case Law Re: New Evidence
370. As described in great detail herein, Mr. Avery has presented new evidence that entitles him to relief. ...
Mr. Avery has discovered new evidence that shows his conviction was the result of a manifest injustice. Much of the evidence was discovered diligently after the new technology became available. Further, the evidence is crucial to the issue of Mr. Avery's guilt or i1mocence and is not cumulative. As in Plude, relief is warranted.
372. Mr. Avery acknowledges that after satisfying the four prong test, the Court must assess the impact of the new evidence on the evidence presented at trial and find that the reasonable probability exists that the new evidence would have resulted in a different outcome. For example, in State v. Aver/ 4, 2013 WI 13, 345 Wis. 2d 407, the Comi applied the test set forth in Plude to the defendant's argument that he was entitled to a new trial in the interest of justice as the result of new evidence. The defendant submitted that his new "photogranunetry" evidence could not have been presented at his trial because the teclmology was not available. For that reason, he had not been negligent in seeking the evidence. The defendant further argued that the new evidence showed he had not participated in the crime for which he had been convicted, therefore it was material. Finally, the defendant submitted that the evidence was not cumulative because the new evidence showed the perpetrator's height while no such evidence had done so at his trial. The Avery court agreed and found that the defendant met all four prongs of the test. The defendant in Avery was not granted relief because, although he could satisfy the four prong test, he was unable to show that the jury would have reached a different result had his new evidence been presented to the jury. In Avery, strong eyewitness identifications were presented at the trial and the defendant gave a detailed confession. Although the defendant recanted his confession at trial, the jury did not believe him.
373. Just like the defendant in Avery, Mr. Avery has satisfied the first four prongs of the test. The 2016 SEM/EDS examination of the damaged bullet fragment (Item FL) by Dr. Palenik only became available through technological advancements after Mr. Avery's 2007 trial. Similarly, the source testing developed by Dr. Reich at Independent Forensics was not available in 2007, and Dr. Farwell's newest version of Brain Fingerprinting was also not available at the time of the trial. Therefore, Mr. Avery was not negligent in failing to have any of these tests conducted. Clearly, the results of these tests are material and non-cumulative to establishing his i1mocence in the murder of Ms. Halbach. 374. The abundant scientific evidence presented by Mr. Avery in this petition would have had a strong impact on the jury such that one must surely conclude there is a reasonable probability that had the jury heard it, Mr. Avery would have been acquitted.
NEW EVIDENCE SUMMARY, PAGE 177
Mr. Avery has demonstrated the discovery of new evidence by experts. Mr. Avery has shown the following:
A) the damaged bullet (Item FL) did not penetrate the skull of Ms. Halbach, absorb her DNA, or cause her death;
B) the crime-relevant information is not stored in Mr. Avery's brain;
C) the hood latch swab (Item ID) did not swab a hood latch;
D) Mr. Avery did not deposit his DNA on the victim's key by holding it in his hand; rather, it was deposited by applying Mr. Avery's DNA to his key with a DNA rich source such as his toothbrush.
Unlike Avery and consistent with Scheidel!, Plude, McCallum and Edmunds, Mr. Avery's new evidence addresses the heart of the controversy before this Court as to whether the forensic evidence used against Mr. Avery was valid or credible. Mr. Avery has demonstrated that it is not. ...
PROSECUTORIAL MISCONDUCT
a. Mr. Kratz's statements at his press conferences constituted professional misconduct;
b. Mr. Kratz's charging Mr. Avery based upon Brendan's confession constituted professional misconduct;
c. Mr. Kratz's attempt to introduce allegations of Mr. Avery's prior wrongful acts into his 2007 criminal trial constituted professional misconduct;
d. Mr. Kratz's pursuit of inconsistent and irreconcilable theories at the separate trials of Mr. Avery and Brendan constituted professional misconduct;
e. Mr. Kratz's request for an aiding and abetting instruction in Mr. Avery's trial constituted professional misconduct;
f. Mr. Kratz's public dissemination of inflammatory information about Mr. Avery constituted professional misconduct; and
g. Mr. Kratz's jailhouse contacts with Mr. Avery constituted professional misconduct. (Affidavit of Bennett Gershman, P-C Group Exhibit 96, ,i 7) ("Mr. Kratz and Sheriff Pagel 3/2/05 press conference video," attached and incorporated herein as P-C Exhibit 95).
Fabrication of Evidence Pre-Trial: Mr. Kratz Press Conference
382. On March 2, 2006, Mr. Kratz held a press conference following Brendan's confession on March 1, 2006. After warning children not to watch, Mr. Kratz related to the assembled media and live television audience the horrific details in Brendan's confession, outlining Brendan's statements about how he saw Ms. Halbach naked and shackled to Mr. Avery's bed, how he and Mr. Avery repeatedly raped, tortured, and gruesomely butchered Ms. Halbach to death, all based entirely on Brendan's confession. Mr. Kratz knew there was no evidence to corroborate Brendan's confession and implicate Mr. Avery, despite the four-month long police investigation and exhaustive search of Mr. Avery's trailer, garage, and property. Mr. Kratz also knew that this new account of the rape-torture-murder of Ms. Halbach contradicted virtually every fact Mr. Kratz had alleged in his original criminal complaint against Mr. Avery - the place where Ms. Halbach was killed (garage), the weapon used (gun), and the cause of death (shot in the head). Mr. Kratz asserted that "[w]e have no determined what occurred sometime between 3:45 p.m. and 10 or 11:00 p.m. on the 31st of October." He then proceeded to recount for the media, the viewing audience, and ultimately a nationwide audience the following allegations:
a. Mr. Avery, "partially dressed and full of sweat," invited Brendan, his sixteen-year-old nephew, into his trailer;
b. Ms. Halbach, "completely naked and shackled to the bed, scream[ed] louder and ouder for help;"
c. Mr. Avery "invite[d] [Brendan] to sexually assault [Ms.] Halbach, telling him that he ha[d] repeatedly sexually assaulted her;"
d. Brendan "proceed[ed] to sexually assault [Ms.] Halbach, who begged the sixteen-year-old for help;"
e. Mr. Avery "watche[d] as his sixteen-year-old nephew rape[d] this woman;"
f. Mr. Avery complimented Brendan on "what a good job he did;"
g. Mr. Avery told Brendan "of his intent to murder [Ms.] Halbach;"
h."Brendan watche[d] as [Mr.] Avery [took] a butcher knife from the kitchen and stab[bed] [Ms.] Halbach in the stomach;"
i. Mr. Avery, "while [Ms.] Halbach [was] still begging for her life, hand [ed] the knife to the sixteen-year-old boy and instruct[ed] him to cut her throat;"
j. Brendan "cut [Ms.] Halbach's throat but she still [didn't] die;" and
k. Mr. Avery and Brendan together sadistically inflict on Ms. Halbach "additional torture, additional mutilation, additional mechanisms of death which include manual strangulation and gunshot wounds."
383.Mr. Kratz's statements at his press conferences constituted professional misconduct. Mr. Kratz, an experienced prosecutor, knew that a prosecutor is not allowed to disparage the character and reputation of the accused, disclose the existence of a confession or other physical evidence, discuss any information that is likely to be inadmissible in evidence and if disclosed would create a substantial risk of prejudicing an impartial trial, and express an opinion on a defendant's guilt. Mr. Kratz knew that his statements would make it virtually impossible for anyone watching his press conference to keep an open mind about the case and the guilt of the defendants. Mr. Kratz knew what he had accomplished. In a subsequent interview he stated, "I was hoping the media would not choose to release all of the disturbing details." Mr. Kratz knew that his statements would have a "substantial likelihood of materially prejudicing an adjudicative proceeding" and a" substantial likelihood of heightening public condemnation of the accused." (ABA Model Rules 3.6, 3.8; Affidavit of Bennett Gershman, P-C Exhibit 96, ~ 14).
384. Moreover, although a prosecutor is barred from expressing an opinion on the merits of a case and the guilt of an accused, Mr. Kratz bolstered his grisly description of the crime by representing that everything he said was a truthful and accurate account. He asserted in his March 1, 2006, press conference that law enforcement "now has a definitive set of answers as to what happened to [Ms.] Halbach "and that law enforcement is presently executing a search warrant on the Avery property where" we know exactly what to look for and where to look for it." Then, at his press conference the next day, Kratz assured his listeners that "we have now determined what occurred sometime between 3:45 p.m. and 10 or 11 p.m. on the 31 st of October." (Affidavit of Bennett Gershman, P-C Group Exhibit 96, ~ 15; 3/1/06 and 3/2/06 Press Conference, P-C Group Exhibit 95).
385. Given Mr. Kratz's prestige and prominence as the special prosecutor appointed by the governor to lead the investigation, Mr. Kratz's assertions that law enforcement had "solved" the case would almost certainly be greeted by public with both relief that the supposed perpetrators had been apprehended and an outcry to punish them. (Affidavit of Be1mett Gerslunan, P-C Group Exhibit 96, ~ 16).
Mr. Kratz Charged Mr. Avery Despite Knowing that Brendan's Confession was Fabricated
386. Mr. Kratz knew at the time of his March 2, 2006, press conference that every statement he made accusing Mr. Avery of the horrific acts against Ms. Halbach - shackling, raping, torturing, and butchering her to death - was based exclusively on the uncorroborated confession of 16-year-old Brendan, which has recently been found by a federal court to have been coerced by the police. Mr. Kratz knew that Brendan was of borderline intelligence, attended special education classes, and was known as a mild-mannered, introverted young man who was never before in trouble with the law. As head of the investigation, Mr. Kratz knew several other critical facts: the police interrogated Brendan several times without his lawyer or parent being present; there were no independent facts or circumstances to corroborate Brendan's confession; Brendan's confession presented a narrative that was totally different than the version Mr. Kratz used in filing the original murder charges against Mr. Avery; and Brendan's confession was legally inadmissible against Mr. Avery for constitutional and statutory reasons. In short, Mr. Kratz had no evidence and therefore no legal basis to support the new charges of sexual assault and torture against Mr. Avery contained in the amended complaint and announced at the press conference. (Affidavit of Bem1ett Gerslunan, P-C Group Exhibit 96, r 17).
387. In addition to saturating the media and the public with an extraordinarily horrific description of Mr. Avery repeatedly raping, torturing, and sadistically butchering to death a young woman, Mr. Kratz knew when he brought the new charges against Mr. Avery that he had no legal basis to do so. Mr. Kratz knew that a four-month police investigation that had conducted at least eight separate searches of Avery's trailer, garage, and every part of the properly had yielded no forensic or physical evidence to corroborate Brendan's confession. A prosecutor engages in professional misconduct when he makes unwarranted claims and brings unwarranted criminal charges. ...
Due Process Violations: Mr. Kratz's Presentation of Inconsistent and Irreconcilable Theories
397. A prosecutor's fundamental interest in criminal prosecutions is "not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Although the prosecutor is allowed to prosecute with earnestness and vigor, and "may strike hard blows, he is not at liberty to strike foul ones." Id. Constitutional and ethical rules impose a special obligation on prosecutors to serve and vindicate the truth and administer justice. Thus, a prosecutor violates due process and his ethical duty to serve the truth when he presents inconsistent and irreconcilable theories at two different trials against two different defendants. Such conduct is inherently unfair, deserves the truth, renders any resulting conviction umeliable, and undermines confidence in the verdict. (Affidavit of Be1mett Gerslunan, P-C Group Exhibit 96, ,r 28).
398. At Mr. Avery's trial, Mr. Kratz argued in his summation that the "uncontested and uncontroverted facts" proved several issues. First, he argued that uncontested and uncontroverted facts pointed to Mr. Avery as the "one person" who was exclusively responsible for the death of Ms. Halbach. Mr. Kratz argued in his closing:
a. There is no question about who is responsible for the death and the mutilation of Ms. Halbach;
b. All of the evidence points to one person. That's the one person being responsible;
c. I'm going to argue at the conclusion of this case who that one person is. I bet you can guess who I'm going to suggest was responsible;
d. The facts are uncontested, uncontroverted;
e. Mr. Avery was the last person to see Ms. Halbach alive;
f. All the early clues pointed to one man. One person. The last person to see her alive;
g. Who's involved in the mutilation process? The evidence keeps pointing to one individual;
h. All of the evidence points to only one person; and
i. Other suspects were checked out. There was no evidence pointing to suspects other than Mr. Avery.
399. Mr. Kratz also argued that Ms. Halbach's death was caused by two gunshots to her head. He argued:
a. We're going to hear about gunshots to the head;
b. The instrumentality of the murder was a .22 caliber rifle;
c. We will actually be arguing to you that Mr. Avery handled, held that weapon in his hands when Ms. Halbach was killed;
d. Ms. Halbach's death caused by two gunshot wounds to the head;
e. Ms. Halbach's potential and future aspirations were snuffed out by one act, and by one act from one person; and
f. Ms. Halbach was killed by gunshot wounds.
400. Mr. Kratz also claimed that the place where Teresa Halbach was killed was in Avery's garage. He argued:
a. No blood was found in the trailer. But since Teresa wasn't killed in the trailer, there shouldn't be;
b. She was not killed in the trailer;
c. Where was Teresa killed? This is an easy answer, or at least it is an answer that is directed by all the physical evidence in this case. Teresa Halbach was killed in the garage; and
d. She was killed in Steven Avery's garage. (Affidavit of Bennett Gershman, P-C Group Exhibit 96, ~~ 29-31).
401. But when trying Brendan, Mr. Kratz claimed that Brendan killed Ms. Halbach, or at least participated in her killing with Mr. Avery. Mr. Kratz claimed that she was killed by Mr. Avery stabbing her in the stomach, Brendan slitting her throat, Mr. Avery manually strangling her, and then incidentally adding a gunshot. Mr. Kratz argued that she was killed in Mr. Avery's trailer, not in his garage.
402. Mr. Kratz's inconsistent contentions at the trials of Mr. Avery and Brendan violate due process as well as a prosecutor's duty to promote the truth and serve justice. See Stumpf v. Houk, 653 F.3d 426 (6 th Cir. 2011); Smith v. Groose, 205 F.3d 1045 (8 th Cir. 2000); State v. Gates, 826 So.d 1064 (Fla. App. 2002). A prosecutor may not advance at separate trials theories of guilt which cannot be reconciled factually. Mr. Kratz could not in good faith argue at Mr. Avery's trial that Mr. Avery was the only killer, and then argue at Brendan's trial that Mr. Avery along with Brendan killed Ms. Halbach. Mr. Kratz could not in good faith argue at Mr. Avery's trial that Ms. Halbach's death was caused by gunshot wounds and then argue at Brendan's trial that her death was caused by stab wounds to her stomach and throat and manual strangulation as well as gunshots. Mr. Kratz could not in good faith argue in Mr. Avery's trial that Ms. Halbach was killed in the garage and then argue in Brendan's trial that she was killed in Mr. Avery's trailer.
KEN KRATZ, PAGE 195
Interestingly, quite similar allegations in the disciplinary proceeding against Mr. Kratz are present in Mr. Kratz's solicitation of Mr. Avery. Thus, in the disciplinary proceeding Mr. Kratz was found to have acted with a "selfish motive," manipulated a "vulnerable victim," engaged in "exploitative behavior," engaged in "harassing behavior," showed a "crass placement of his personal interests above those of his client," and "crossed the line separating the unprofessional conduct from the acutely offensive and harassing." The referee also noted as an aggravating factor Mr. Kratz's considerable legal experience and leadership on victims' rights.
421. To be sure, Mr. Avery was neither a client of Mr. Kratz nor a crime victim, and so his conduct toward Mr. Avery may not have been as "boorish," and "appalling," the way the Wisconsin Supreme characterized Mr. Kratz's conduct towards the vulnerable victims of his sexual pursuits. But as a matter of professional ethics, Mr. Kratz's conduct towards Mr. Avery was as intimidating, self-interested, and manipulative as it was to the women Mr. Kratz abused. Mr. Avery was in a hopeless position and an easy target for Mr. Kratz's solicitations. Mr. Kratz knew the prison authorities had objected to Mr. Avery speaking to Mr. Kratz and that Mr. Kratz's overtures might hurt Mr. Avery. Particularly disingenuous was Mr. Kratz's ploy to suggest falsely that Mr. Kratz was simply a disinterested person trying to assist Mr. Avery to tell his "honest" story to the world, but knowing full well that he wanted Mr. Avery's story only if Mr. Avery told his story in a way that served Mr. Kratz's selfish interests in writing a book and promoting himself. Mr. Kratz exploited his former status as Mr. Avery's prosecutor "who knows more about your case than anyone." Mr. Kratz disparaged Mr. Avery's" continued nonsense about being set up." He intimidated Mr. Avery as he did with the women he abused, trying to convince Mr. Avery to talk to him by the veiled threat that it was "too bad" that Mr. Avery refused to talk to him "because you had ONE opportunity to finally tell all the details, but now that will never happen."
422. That same "ugly picture" depicted in Mr. Kratz's offensive sexual misconduct with women appears in Mr. Kratz's solicitation of Mr. Avery. Mr. Kratz acted out of his own self-interest, in an utterly unethical way, abused his professional office, and engaged in conduct prejudicial to the administration of justice. (Affidavit of Bennett Gershman, P-C Group Exhibit 96, 11 49-53). ...
Instead, the prior post-conviction attorneys argued that the defense should not have been barred from arguing that a third party was responsible for the crimes charged. The trial defense counsel had not identified a specific perpetrator. Instead, they argued that Mr. Avery's family members were potential suspects, as were customers of the Avery Salvage Yard. Those unnamed suspects, according to the trial attorneys, had the same opportunity as Mr. Avery had to commit the crime. The prosecution argued that State v. Denny, 120 Wis. 2d 614,357 N.W.2d 12 (Ct.App.1984) set forth the test to be applied. The trial court agreed, and barred the evidence.
429. Denny mandates that a defendant seeking to introduce third party liability evidence must demonstrate a legitimate tendency that a third person could have committed the crime. To show a "legitimate tendency," a defendant may not introduce third party liability evidence that simply affords a possible ground of suspicion against another person. Pursuant to Denny, a defendant must show motive, opportunity and additional evidence to directly connect a third person to the crime charged which is not remote in time, place or circumstances. Id. at 120 Wis. 2d at 623-24, 357 N.W.2d 12.
430. There was no realistic possibility that the post-conviction attorneys would be successful in reversing the trial court's decision barring the third-party evidence at trial....
DENNY STANDARD
Further, the prior post-conviction attorneys claimed that the trial attorneys were barred from introducing evidence of other sources of Mr. Avery's blood that could have been used to frame him, but the trial attorneys were permitted to do so, and they did introduce such evidence. (Order, P-C Exhibit 94, p. 70).
446. Simply put, the trial attorneys were not barred from introducing evidence and presenting arguments that the prior post-conviction attorneys contended they were barred from introducing and presenting. (Order, P-C Exhibit 94, p. 70- 71 ).
447. The prior post-conviction attorneys improperly cited an unreported decision that bore no factual relationship to the case at bar. (Order, P-C Exhibit 94, p. 73).
448. The prior post-conviction attorneys argued that the trial attorneys were barred from offering their "frame up evidence" but the trial attorneys were not barred from doing so, and they did. (Order, P-C Exhibit 94, p. 74).
449. The trial attorneys presented an offer of proof that related to the opportunity of third parties to commit the crime, but not to any effort on the part of those third parties to frame Mr. Avery for the crime. (Order, P-C Exhibit 94, p. 74).
450. The trial attorneys claimed they were not offering any evidence that a third party had a motive to commit the murder, but they actually did seek to offer motive evidence; for example, the trial attorneys attributed a motive to Scott Tadych, Andres Martinez, Charles Avery and Earl Avery. (Order, P-C Exhibit 94, p. 76). ...
FAILURES BY PRIOR DEFENSE COUNSEL
Mr. Avery's prior post-conviction counsel failed to retain experts in blood spatter, DNA, ballistics, trace, fire forensics, forensic pathology, police procedure and investigation, prosecutorial misconduct, and brain fingerprinting, as well as a competent investigator and forensic anthropologist, who would have been able to demonstrate that all of the forensic evidence used to convict Mr. Avery for Ms. Halbach's murder was planted.
471. Ms. Hagopian and Ms. Askins raised claims that were clearly less strong than the current claims of ineffectiveness raised by Mr. Avery's current post-conviction counsel. They confined the ineffectiveness claim against Mr. Buting and Mr. Strang to the narrow issue of juror removal. They overlooked the clearly stronger ineffectiveness claim of trial defense counsel's failure to hire a blood spatter expert who would have demonstrated as Mr. James has done that the blood deposited in the RAV-4 was selectively planted and did not originate from an actively bleeding finger as Mr. Kratz told the jury. A blood spatter expert would also have refuted the testimony of the State's expert, Mr. Stahlke, that the blood spatter on the rear cargo door was created when Ms. Halbach was thrown into the rear cargo area of the RAV-4. The correct explanation of the blood spatter on the rear cargo door would have provided a completely different scenario of the attack upon Ms. Halbach than the one presented by Mr. Kratz.
472. If Ms. Hagopian and Ms. Akins had hired a DNA expert such as current post-conviction counsel's expert Dr. Reich, the DNA expert would have conducted a number of experiments to demonstrate that it is highly improbable that Mr. Avery would have been able to leave a full DNA profile on the hood latch by simply opening the hood as Mr. Kratz alleged to the jury in his closing argument. Additionally, if Ms. Hagopian and Ms. Askins had retained a trace expert such as Dr. Palenik they would have discovered that the alleged hood latch swab did not come from swabbing the hood latch; rather, it most likely came from Inv. Weigert substituting the hood latch swab for the groin swabs taken from Mr. Avery at the Aurora Medical Center. If Ms. Hagopian and Ms. Akins had done a thorough review of the discovery and interviewed Mr. Avery about the groin swabs taken from him, they would have recognized the suspicious circumstances surrounding the acquisition and disposal of the groin swabs by Inv. Wiegert from Mr. Avery. If Ms. Hagopian and Ms. Askins had investigated the chain of custody forms for the hood latch swab, they would have discovered that it was Inv. Wiegert not Dep. Hawkins who delivered the alleged "hood latch" swabs to the WCL. Ms. Hagopian and Ms. Askins would have been able to present this compelling information about the alleged hood latch swab to the trial court and been able to undermine confidence in the verdict against Mr. Avery.
473. If Ms. Hagopian and Ms. Askins had hired a police procedure and investigation expert such as Mr. McCrary, current post-conviction counsel's expert, they would have been able to present admissible evidence that law enforcement's investigation of Mr. Avery was fatally flawed because of its premature focus on Mr. Avery rather than developing evidence as to Ms. Halbach's background and her enhanced risk for becoming a victim of a violent crime. Additionally, an expert such as Mr. McCrary and a competent investigator would have developed invaluable information about one potential suspect that had a prior history of verbal and physical abuse of Ms. Halbach; an injury pattern consistent with a struggle at the relevant time; and had deleted voicemail messages from Ms. Halbach's phone. An expert such as Mr. McCrary and a competent investigator would also have learned that the suspected lied to investigators about cnme scene evidence, his relationship with Ms. Halbach, and his identity during the search; and controlled the search and the dissemination of information to law enforcement after he moved into Ms. Halbach's house. A competent investigator would have discovered Mr. Siebert, who witnessed the RAV-4 being brought onto the property prior to November 5, 2005.
474. Current post-conviction counsel found a letter dated May 4, 2008 and received by the State Public Defender Madison Office on June 20, 2008 from an inmate Bobby Don Salas ("Mr. Salas"), inmate number 420573. Remarkably, Mr. Salas suggested that Mr. Avery get a blood spatter expert, DNA expert on the key to determine the source of the DNA, and "brain fingerprint" testing. This letter was forwarded to Ms. Hagopian and was ignored by her. (Letter from Mr. Salas, attached and incorporated herein as P-C Exhibit 105).
475. Ms. Hagopian and Ms. Askins should have discovered and raised the Brady violations discussed in paragraphs 293-303.
476. Ms. Hagopian and Ms. Askins should have interviewed Mr. Avery to learn that the source of his blood that was planted in the RAV-4 came from his trailer sink, his observation of the RAV-4 being driven up to his property on November 3, 2005, and his description of the groin swabs taken from him and concealed by Inv. Weigert. ...
Mr. Avery had no way of knowing the factual and legal basis the claims set forth herein. As a learning disabled, indigent prisoner, Mr. Avery simply could not have known them. His attempt to file a meritorious pleading was thwarted by his lack of legal knowledge.
492. The current motion is the product of over a thousand hours of attorney time, hundreds of hours expended by private investigators, numerous consultations with experts, the expenditure of funds to retain those experts, and more. To expect an indigent prisoner acting pro se to compile a meritorious motion under these circumstances would be unreasonable. Mr. Avery's lack of legal knowledge, cognitive deficiencies and the complexity of this unique case provide the sufficient reason that the current claims should be addressed on the merits. IN THE ALTERNATIVE, MR. AVERY IS ENTITLED TO A NEW TRIAL IN THE INTEREST OF JUSTICE PURSUANT TO§ 805.15.
493. Alternatively, Mr. Avery is entitled to a new trial in the interest of justice. If this court were to conclude that this new evidence warrants a new trial in the interest of justice, this court need not resolve whether the new evidence satisfies the test for granting a new trial based upon newly discovered evidence.
[–]makingacanadian
ReplyDeleteIt isn't just the blood in the rav. It isn't just the spare key. It isn't just the bullet. It isn't just the bones. It Isn't just because there is no known motive. It isn't just because they failed to prove the murder location. It isn't just because it makes no sense for him to leave her phone and camera in an identifiable form. After burning the body to a "near" unidentifiable state. Who does that anyway?? Why the fuck you would burn her cell phone? He could have done a million things to the little fucking phone. There is no need to burn it. And if one is going to burn it they would fucking burn it. Not half ass melt it ffs. I could go on and on and on as to why it makes no legitimate sense that he killed her. In almost every murder story I have ever looked into, where the guilty is actually guilty, it makes sense. You can combine all the circumstantial and physical evidence together Factor in a motive and it makes sense. This Avery case does not make sense and the Dassey case makes even less sense.
With all of the files available, all of the physical and circumstantial known evidence we have at our internet means. Give me your best. Connect it together. What happened to her? Where did it happen? Why did it happen?
These are the things you should be able to prove. as all of the evidence that was collected, all of the witnesses that were "questioned", all the information we have about this case is revolved around an Avery is guilty perspective.
[–]logicassist
There is too much missing from the case to know if he is guilty or not. There is not a single piece of evidence that TH was ever in the trailer or garage. None. The confession that put TH in either place has been thrown out as coerced and it was all over the place in the and impossible in the first place. No one's stories added up and everyone including LE lied. The RAV4 has an entry date in the LE computer system a day before it was found on the property. The death certificate has been muddled with and altered.
[–]Helen_uk58
Well I said before there is little likelihood of a new trial, the battle is the Brady's, if the State lost on them and without so many aspects of the first trial gone, a state and world so distrustful, even the State won't agree they can get a untainted jury. SA can't take a deal KZ will need paying .. then we will have the guiltiers screaming unfair Brady's, KZ has been clever with this bringing 4, she only needs one, if they chuck out all 4 she will have a good change to appeal and win. She knows how to play the game and it would be silly to dismiss her.
[–]chadosaurus
ReplyDeleteMaybe it's my fucked up morals or hatred for corruption, but I'd rather see a murderer get out on a technicality vs. LE getting away with possibly putting an innocent person in prison by playing judge and jury.
Say theoretically Avery was inccocent, think of how many years was taken away from his life, I'm sure some people would prefer a death sentence over it.
Or even take Brendan; who lost so many years of his life corroborated by almost an entirely fed confession by some severely fucked up people.
Then you got to ask how many people have they done this to? Is their entire department corrupt, and is this acceptable behaviour amongst themselves? Will this behaviour exist for many years and become more acceptable because no one is punished?
If Avery is given a retrial and is found guilty again, and police are punished severely for planting evidence I would be OK with that; but lets face it,that is a pipe dream.
The thing with SA, is there is no motive- the luring theory is ludicrous (and correct me if I'm wrong but isn't the *67 thing proven wrong with the newly released call records? He just got out of jail (after a wrongful convicition), I'm sure that's the last place he'd want to go back, and of course had a large court case, he was surely about to come into a significant amount of money.
RH was an ex boyfriend, lived with her, and comes across as a sketch bag in all his interviews. He hacked her voicemail, has some unusual activity on his phone, and shrugs off some important questions while on the stand.
Statistically speaking RH or SB are far more likely to be involved.
I could put together several theories and no matter who is the killer, LE played a role in planting evidence; and in my opinion- this is far more coherent and logical than the states theory or any guilters theory in which the police did not participate in any planting.
Do you have a workng theory of events that fits in with the evidence?
What's Avery's motive, corroborated by what evidence?
If he raped her, where's the evidence?
Where did he kill her, where's the blood splatter?
Where did he rape her if your theory includes rape.
Most importantly, can your theory be ripped apart with inconsistent evidence?
Would your guilter theory perhaps make far more sense if you to fit in LE planting evidence into it?
[–]plowbabe
ReplyDeleteI watched the documentary once. Couldn't believe all the "what the hell" moments. Did some googling for more info, kept coming across this Reddit stuff. Finally checked it out. Old MAM sub was great initially, then I migrated over here once shit went sideways over there. I find this group more in line with my thinking. I thought they were both railroaded from the get go. I can not stand to see the underdog continually get shafted. I believe Steve is a true underdog....Upstanding citizen, not so much, but neither are a lot of us. I think he said it best. Poor people never win. I think he's dead right. People are not disposable! One is not more worthy than another. The whole thing pissed me off with the injustice of it all. I cannot stand people in power thinking they are more entitled than the poorest among us. In those 18 years he never wavered from his stance that he was innocent. As I see it, he has admitted when he has done wrong. He does take accountability for his actions...I find it telling a lower intelligence individual appears to have more of an idea of truthfullness than law enforcement...The very ones we are raised to believe in. The work this group has done simply amazes me. I am not that dedicated to the research etc, but some of our members are fantastic at it. I keep coming back because this group has done some amazing work and I want to see justice done. I want to see Zellner prove to the world that they screwed Steve and Brendan and didn't care because they considered these two lesser human beings who didn't matter. Well, we all matter to someone. The Averys may be a little different, but they are human beings entitled to the same rights, love of their families and right to freedom as the rest of us.
[–]doorburg
ReplyDeleteBorn and raised about an hour south. We have a vacation cottage about an hour north, so ASY is right in between.
We are friends with a local family from Two Rivers which is close....and the men are all close with many of the LE involved through things like the gun club and trap shooting, etc. They grew up with the Janda and Dassey boys and claim to know the troublemakers this entire clan has been and everyone thinks they are guilty and don't want to hear any more about it. I have tried to give them some of the Ferek articles showing some of the inconsistencies and they won't even consider the possibilities. ETA....they grew up with the older generation of the families....such as in BDs father. I was just thinking about this group of kids in my own neighborhood...they are the druggies, they constantly skip school, they are the ones who go around smashing the little kids pumpkins. If something is stolen or broken it is them. I can imagine it is/was the same kind of thing. One gets sick of their behavior and it would take a lot to change the opinion of them.
November 5th, The Fox Hills Resort - Barb was told to bring Blaine with her to Fox Hills to spend the night "for their protection." Earlier that day, in Marinette County, the location of the family's vacation property, Brendan had been isolated and interrogated, without a guardian present, in O'Neill's patrol cae, after he and his older brother, Bryan, where pulled over in Steven's Grand Am.
ReplyDelete[–]ThorsClawHammer
(Fox Hills) overnight stay (and his mom) under the guise of protecting him from his Uncle
Had nothing to do with Avery. They said it was for "safety" reasons that someone might try to harm Dassey if they found out what he had been saying. Of course those concerns evaporated overnight as they were all sent to do their daily business the next day.
[–]Canuck64
They were not permitted to leave, if they tried they were told they would be arrested.
[–]ThorsClawHammer
if they tried they were told they would be arrested.
Really, on what grounds?
[–]Canuck64
At the high school Brendan had "confessed", under threat of prosecution, to mutilation of a body, accessory after the fact and obstructing a homicide investigation, at least those are the charges I can think of.
In order to circumvent Miranda they allowed him to return to class. They waited about an hour before taking him to the police station and Mirandizing him before he repeats his previously coerced confession. This is actually a very common technique used by police and upheld by various State appeal courts.
Miranda is only required when a person is in custody. After they read him Miranda at the police station they maintained custody of him until some the next morning. If at anytime they tried to leave they would and were told they would be arrested. Miranda only protects the conviction, not the person.
[–]ThorsClawHammer
Just curious what they could have been charged with had they tried to leave. The "safety" reason cited was bullshit, so I'm not sure what reason they would have to detain them in the first place.
[–]Canuck64
Like I said, accessory after the fact and for Barb and Blaine obstruction.
[–]doorburg
ReplyDeleteI just can't wrap my mind around several things which makes me lean toward innocence:
Virtually no crime scene: she is not in his trailer; no blood, no hair..if they cut it or pulled it; no fibers; no skin cells; no blood; nothing on the hand cuffs; no other method of binding; no bloody knife; nothing personal such as a purse/belt/clothing ....NOTHING. I don't buy into that SA was an amazing cleaner.
Garage crime scene: same thing. No blood; nothing in there of his possessions were disturbed; dust on everything.....an oddly placed bullet with her "DNA" on it found after many searches....although there were other bullets no one bothered to collect.
Almost no body: a bone that was only a partial match; no coroner; a disaster of a death certificate. No photos of where it was collected or where it was found.
If SA cleaned the entire inside to hide a crime, why would he leave the key (the whole cabinet shaking/perfect coins) and car to be found so easily....(or not..on the 7th or 8th search??)
The car: no prints of SA; odd sweat dna in a place where he would have had to have prints to open it. It was locked then under the mystery tarp and then unlocked?
The search ....that didn't seem to be of TH but more for her car....the strange stories of phone message/the Zips....the arrest timing of Barb; the juror leaving , the sheriff interacting with pizza to jury etc.
There are so many questions that make it a bizarre investigation more so than a thorough one.
He may be guilty as sin....but the investigation was a joke
https://www.reddit.com/r/TickTockManitowoc/comments/6e4dkq/what_an_undercover_cop_confessed_to_a_leaning/
[–]bigmouthlurker
ReplyDeleteI sincerely thought MaM was a mockumentary. A very good hoax because it was too slanderous to LE. There are so many hoaxes these days that I thought Netflix simply made these characters up and made the footage up. My feeling was so strong that I had to go research this more and now I can not say if TH ever existed or if she's simply a character in the mocumentary. I still don't know if she existed or if this is a very good "Twin Peaks" series.
It's like a script was written to see who was so gullible as to believe the insanity Kratz spewed and to ignore the coincidences of the law suit. When I start to feel anger toward LE then I remind myself that it's possible, in this age of hoaxes, that this is not even real...it's a hoax to get me to examine my own standards of gullibility and reasonable doubt. and it worked in that respect.
So, within the possible hoax, I think, if I were to write the script, like "Life of David Gale" movie, then I'd say TH was killed in an accident and then planted by an agreement between LE and RH. They paid the family off to go along with it, saving money in the long run, and murdered no one except SA whom they felt deserved it because of other things, and BD who simply got in the way and was collateral damage.
I still reserve some hesitation in believing that this is not a brilliant Netflix hoax in the realm of "war of the Worlds" broadcast and we are all duped big time.
I've even considered pitching a reality show based on this exact scenario, introducing a small town full of normal people, 'killing' one of them...and then setting retired cops and investigators and judges and jury to the test...while the entire time having 'footage' of the real 'murder'. so the viewer gets 10 episodes and a trial and possible conviction before we all learn if we got it right or if the truth is not remotely what we believed. I wonder if Netflix producers didn't go one step further and pretend the whole thing with TH really did happen.
https://www.reddit.com/r/TickTockManitowoc/comments/6nzxq4/your_thoughts/
[–]shooterwho
ReplyDeleteBack after long while but here since January and here is my thoughts. First we have "the pencil" he was in military intelligence during the Vietnam era and a wannabe high level black ops type. However he most likely had some training at this sort of skulduggery as it reaps of CIA text book operations. They needed to save 36m and to save their ass quick. If the boss was going down those under would go as well as generally he would rat out his underlings. Take out the target, create confusion, control the propaganda, control the investigation, distort the facts from every angle, have a patsy, have a fall guy if things go wrong. Think about those two characters for a minute and its easy to place a name on them. CIA does this on a regular basis all one need to do is read up on what they did in Iran during the 50's with the Shaw and you will get a clear picture. These types are also sexual deviants and just about all of them reap of it. Ring any bells from a certain prosecutor? "the pencil" also had the perfect "operative" to pull this off and not sure if he was available when all this went down but again I'm sure they had more than one to "arrange" their sexual escapades for every day fuck sessions. They had a huge selection of anyone that needed a fast track out of prison or a track to keep from going there. That is who done the "deed" "if" it was actually done. imo there is no proof it was which leads us back to articulated "confusion". Then again if she is alive methinks she would have surfaced by now or maybe even "sanctioned" again to prevent just that. It's a rabbit hole created by following tried and true methods by real experts and imo is why KZ knows what to look for in these types of scenarios. Many LE types find their training in intel as MP's etc. as there is really nowhere else for them to find employment once their back in the real world and my o' my like kids in a candy store handing out free drugs and sex acts to all of the players. "ok judge how about a hot roll with a fresh young hottie" and in that one act they have him hooked for ever. "you talk and it all comes out" etc. I seriously doubt the truth will ever come out I do feel the target will eventually get released though and that poor abused kid that was railroaded by yet another wannabe intel type that cries at the mention of a "blue ribbon."
https://www.reddit.com/r/TickTockManitowoc/comments/6nzxq4/your_thoughts/
By JJacks61 at TickTockManitowoc
ReplyDeleteI WAS manipulated by the series. Then I read the motions and transcripts. This revealed a much darker side of the State than was revealed in the series (to me anyways).
Then information about the low ethical character of these State actors came into focus and we found out how Brendan's lawyer was really working for the prosecutor, not Brendan.
The extreme steps LE Investigators took to isolate and manipulate a vulnerable mother and two teenagers, holy shit.
In every sense that I can think of, the filmmakers were VERY kind in their portrayal of the State and their actions. They acted with motive and intent.
This Special Prosecutor was given a directive and allowed a wide berth to operate. Due process was not the only casualty in this saga. The Presumption of Innocence, spoken far more eloquently than I ever could was destroyed, with intent and malice.
For me, Avery did not get a fair trial. Kratz played every dirty trick he could to get a win, not because he was looking for any truth, but to put Avery back in prison to halt a Lawsuit that Manitowoc was going to lose.
Brendan got fucked over and passed around for more handling by grown adult men that KNOW he is innocent. All to kill an alibi witness. Know any other organizations that kill off witnesses to stop them from testifying?
https://www.reddit.com/r/TickTockManitowoc/comments/6njcw4/i_cannot_watch_the_documentary_making_a_murderer/
[–]kent3334 2 points 9 hours ago
ReplyDeleteYes, the tire has dried mud in one crime lab photo of front left tire, then its wiped in the next. I have pics that leads me to believe the front left rim was damaged then straightened sometime while at the crime lab therefore cleaning the tire in the process. I dont believe a word was said in the reports about tracks. I wouldnt believe giving the age of the suvs and growth around them that any other car was put there in a month prior. IMO.
[–]MMonroe54 4 points 8 hours ago
the front left rim was damaged then straightened sometime while at the crime lab therefore cleaning the tire in the process
By LE, you mean? For what purpose? Seriously, why would they need to do that? It was obvious there was damage to the RAV, i.e. the blinker assembly, etc. So why straighten a damaged rim?
[–]kent3334 2 points 7 hours ago
I have not a clue, unless the tire would not hold air. Im guessing they pushed this car around to get it in and out of different garage bays. I believe the passenger rear tire was also flat and the spare was used on that side. All pics in lab (we were able to view) were of drivers side. so I am speculating.
Mud https://i.imgur.com/PITtIkJ.png
Wiped mud https://i.imgur.com/1NzqVWz.jpg
Bent bead https://i.imgur.com/DDS8KBU.png
Clamped and straightened bead. https://i.imgur.com/3QTfZxJ.png
Than there is this that I think is a tire tread mark. Have you ever changed a tire and leaned it up against the car so it don't roll to far away? That's what I think this is from.
https://i.imgur.com/iwTrgp7.png
All just my opinion.
https://www.reddit.com/r/TickTockManitowoc/comments/6rxym2/rewatching_mam_e5_whats_with_the_muddy_tires/
Teresa Halbach turned up at around 02:30, spent 5 minutes taking photos, and then left in the direction of Larabee or Larado or something like that.
ReplyDeleteA proper investigation that chased down the obvious leads would have found out, but since the police deliberately excluded anything from their files that would undermine their narrative it is an impossible question for anyone to answer.
1) The cops clearly hated Avery and had already proven they had no problem framing him for a heinous crime.
2) There were irregularities in the investigation, particularly key evidence found by officers who shouldn't have been involved.
3) At least some of the evidence appears planted.
4) The prosecutor deliberately poisoned the jury pool by making public statements about a key witness who never even testified against Avery.
5) Said witness's testimony appears coerced.
That's reasonable doubt.
[–]ThatKiwiBloke wrote at Reddit:
ReplyDeleteOK i'll give it my best shot.
TH leaves ASY on the afternoon of 31st Oct 2005 as SA said she did.
She continues her day until she arrives home. while at home she is confronted by RH about her relationship with Scott. Ryan isn't happy that she has been sleeping with Scott and he kills her in a fit of rage. coming to his senses he now realise what he has done and starts putting together a plan to either hide the body.
RH then starts digging through TH belongings to find out what her plan was and realises the last place she was before he sees her was at ASY. RH over the next 2 days buries her body near the ASY and leaves the car in the area to frame SA (this framing is poorly done and isn't well thought out). RH bust TH's Ravs tail light while driving at night without the lights on to stay hidden.
AC then discovers the RAV and TH's shallow grave on the 3rd (which can be proven by his phone call to dispatch). Realising what he has found AC calls his superiors to inform them of what he has found so close to SA's residence, and an idea is born to frame SA. The group of men involved in this frame job is very small, only involving AC, JL, and JP. They know if they can plant evidence without being seen that the rest of their force will put the pieces together and believe SA is guilty.
There is one problem though: at this point AC and his gang know that SA is the real killer, and they know that any attempt to frame him before they can silence the real killer could massively blow up in their face. If the public found out that LE planted anything against SA when someone else could be proven responsible, all faith in the local law enforcement would be eroded for years. LE knows they have to find the responsible party first.
Through proper detective skills, or by RH contacting them, LE confirm that RH is the real killer and that he had taken steps to conceal his involvement in the crime (destroying TH's camera, burning her body to hid forensic evidence, throwing away her real keys and murder weapon). LE convince RH that he should keep his mouth shut about his involvement if he wants to stay out of prison. RH agrees either by being intimidated or by his own selfishness not to take responsibility for his crime. This all takes place on the 3rd/4th. LE knows they have to move fast to pin this on SA as anyone could discover any of the evidence any day now. LE knows they are safe as both LE and RH would go down if the truth came out.
The RAV4 is planted on the Avery salvage yard on the night of the 4th, knowing that a search party will find it the next morning (because of the direction from RH/LE). TH's bones are also scattered into SA's burn pit. The next day, under the instructions of AC/RH, Pam and her daughter search the ASY for signs of TH (knowing that they will find the car). This is reinforced by the fact that Pam is the only searcher given a camera to document anything she finds (why would this be?) Also, she phones LE and describes the RAV4 in detail, asking if it's the correct vehicle because she "doesn't want to, you know."
After the RAV4 is discovered police swarm the ASY looking for clues. Cadaver dogs hit in many areas where they shouldn't, such as the original burial site for TH, which is never investigated properly. LE takes full control of the ASY at this point, and the framers know they can set up the rest of the framing fairly easily. AC drops the key on the floor of SA's trailer after shaking the night stand (without moving anything else). SA's blood is planted in the RAV4 sometime between it being discovered by PS and arriving at the crime lab to be checked in.
CONTINUED...
We can assume that the framers did the above by the fact they didn't photograph the burn pit after discovering TH's cremains (something that even a rookie cop would have known to do) and by the fact that they didn't contact a coroner (something else that is unheard of after finding remains). Why would LE want to keep away such details? It's because they know someone who isn't part of their plan with expert knowledge could very easily blow open their efforts to frame SA.
ReplyDeleteSteven, fresh from getting out of prison for the rape he never committed, faces the TV crews and declares that he feels like LE are trying to frame him. Key LE personnel listen carefully to his claims and know that if they are going to send him back to prison they will have to tarnish his name and pile a whole heap of evidence against him so that no one can question his guilt. LE hatch a plan to solidify their case against SA.
LE go after Jodi and try to convince her to turn against Steven, to no avail. Knowing they need a witness to back up their story, they then turn their attention to Brendan Dassey (at the time not knowing that he had a low IQ and learning difficulties).
LE strike gold when they interview BD after he starts to tell them what they want to know, rather than the truth. I believe they very quickly realise BD has many limitations but decide to pursue what they see as their last chance to convict SA using one of his own family and taking away his only alibi for the time of the murder.
Getting more than they expected LE are now forced to arrest BD for falsely confessing to rape and murder (something they didn't think they would have to deal with -- they simply wanted a testimony against SA).
After getting some crucial facts (that are feed to BD), LE now feels confident enough to again search many areas that they had previously gone over, like the garage where they find the .22 bullet sitting under the air compressor even though the area had already been swept many times over. It is important that BD tells LE about this evidence or people will become suspicious as to why LE could have missed such details.
To LE's surprise SA hires Dean Stang and Jerry Buting to help defend himself against these claims. The fight to get SA and BD thrown back in prison is much harder than LE expected, so the state throws everything they have at this case, wasting millions on two convictions.
The trial happens, as we see in MAM, with SA and BD being sent to prison, and LE think they are safe at this point. Little did they know that MAM would bring the case back to life in 2015 and all of their dirty work can be scrutinised by thousands of people instead of a few select attorneys and investigators.
And here we are now.
CONTINUED...
People love using the blood as undisputable evidence that SA was the killer but, really, it only opens a can of worms.
ReplyDelete1) if he cut himself, why is there only blood in 4 specific spots in the RAV4 that don't match up to a man driving a RAV4? Why wasn't his blood on the door handle that he would have opened? Where was his blood on the steering wheel that he would have used?
2) If he was bleeding, why is there no blood under the hood latch or in the engine bay where his "sweat DNA" was found?
3) If he was actively bleeding that means he wasn't wearing gloves, right? So if he didn't wear gloves why didn't he leave any finger prints anywhere?
If he did commit the crime like the state said he did, and he cleaned up all of TH's forensic DNA inside his trailer/garage, that means that SA was very a wear of leaving behind any evidence that would have linked him to the crime. So, if that's true, why did he leave the biggest piece of evidence laying around with his blood inside it?
"Guilters" love to say "Truthers" have straw man arguments for SA being innocent, so I'm calling on them this time to explain points 1, 2, and 3 to me from either a scientific or logical standpoint.
https://www.reddit.com/r/MakingaMurderer/comments/6t7ga0/which_truthers_wants_to_share_in_detail_what/
The blood is all they have... by Redbirdgrad in TickTockManitowoc
ReplyDelete[–]ZellnerWinsAgain 6 points 1 month ago
Based on KZ's motion and all the affidavits and information that came out of it, I don't see how the blood could not have been planted.
The key pieces of evidence against him: the key, the bones, the hood latch, the bullet fragment all have been proven by scientific experts around the world to be false or planted.
Key is a sub key with only his DNA on it. Planted. The bullet fragment didn't go through her skull and didn't have blood DNA on it. Planted. Hood latch DNA. Planted. Bones--not scientifically possible to burn a body to that degree in 4 hours. End of story. Planted.
Just the circumstances around the blood in the RAV4 should make one suspicious. No SA prints anywhere. Mr. Super Cleaner of blood in the garage but yet careless enough to leave six blood spots in the car and make it obvious to find as the only vehicle with branches and a hood on it.
Just use your common sense here. Seriously. KZ says the blood came from the sink. I don't doubt that. Her foremost blood spatter expert disputes the possibility that SA bled all over that truck.
How much hard evidence do we need to get people to look past the tips of their noses to figure this out?
KZ knows who did this. It was no doubt RH who murdered her. EVERYTHING points to him. LE helped along the way and colluded with him on planting evidence for sure so the are both culpable.
KZ has more up her sleeve too. You can bet on it.
SB, you better get it together asap and come clean. Otherwise, you are going down with RH.
https://www.reddit.com/r/TickTockManitowoc/comments/6jt4cn/the_blood_is_all_they_have/
Phone Records (self.TickTockManitowoc)
ReplyDeletesubmitted 1 month ago by ZellnerWinsAgain
What I find interesting are the calls between RH and SB on his cell.
Out of the 21 calls back and forth on their cells, RH initiates the call to SB 76% of those times.
There is a gap of no calls from 10/23-10/29 until SB calls RH on 10/29 at 2:39 PM, which is unusual as he was normally working at that time.
RH only has 3 calls on 10/30 and two of them were talking to SB.
On 10/31, RH has two calls that go unusually long based on his records.
He only had 4 calls the entire month of October that went longer than 20 minutes.
Just so happens that he has two calls of 21 and 23 minutes on the day TH was murdered. RH & SB talk twice (7:37 PM & 7:47 PM) that night.
It's also very interesting to me that RH and TH's last phone call was on 10/25, and it was a long one by RH standards--13 minutes. After that call, there is no cell activity between them until he calls her on 11/1, which, of course, she is dead by then and he knows it.
There had to have been pent up jealousy and anger built up when he found out she was involved with other guys. She probably informed him that she didn't want to see him anymore during that call on 10/25, and it just ate at him for a week. It all boiled over and he lost it on 10/31.
As KZ said from the beginning, and I said too, it's pretty obvious who the killer is.
https://www.reddit.com/r/TickTockManitowoc/comments/6igpcl/phone_records/
ReplyDeleteDelores told the truth but its completely ignored
http://www.waaf.com/blogs/making-murderer-full-discussion-including-interviews-dolores-avery-and-brad-dassey
Vid shows up after a while under the Dolores Avery paragraph, started with an advert for someone's photography website :/
From 4 mins
Who do you think killed Teresa?
I don't know but I wish the person would come forward. But I don't think she's even dead.
Oh really?
I don't think so. There's so many of them say that.
So do you believe she cooperated with the police in a conspiracy to set your son up?
It could be.
I wouldn't doubt it. The corrupt stuff that happened and god my heart goes out to you and, you know, just keep being strong for Steven at least.
Yeah
So I Just want to go back for a moment. You think that she's not dead even though her bones were found on your property?
How do you know if they were her bones?
Well the anthropologist testified, the medical examiner so do you think...
Cos somebody planted them then. They planted the key.
They planted the key yeah. They planted the key. Do you believe that the blood that was in the car came from that sample of blood that was Steven's blood sample?
Could have been anybody. When he went to the doctor when he first got out before, he had to go to the doctor and he gave blood there, it could have been that blood, who knows.
Yeah. Have you ever met Teresa because she had come to the property a lot to take pictures, had you ever met her?
Not really.
[Interviewer doesn't mention TH's blood in the RAV4 or the DNA from the bone planted near the pit]
From 6.25
If Teresa was killed, where do you think she was killed? You've got the bones on the property. Was it common for your son to have those kinds of fires?
That's only a bonfire it was. Other people all have them, bonfires.
Would it be a common thing that he would have them?
Sure. The people down the road had a bonfire that one night.
From 11m after Dolores has left:
How about the fact that she thinks that Teresa's not dead?
Right. That's very interesting.
Rob said that too.
That's very very interesting. What, did you say that?
At some point yeah.
I think it was off the [?]
That's a very interesting theory
The bones and whatnot that's a little tough for me.
I don't know about that
If we get to it I still want to talk, i know we're up against the clock now, but I still want to talk about the woman who was processing the bullet fragment and Sherry her DNA contaminated it. That whole thing was a mess.
[–]MnAtty 2 points 5 hours ago
Sometimes I think Steven Avery just had such clear-eyed chutzpah. I don't know if many could have walked right into the line of fire, especially a second time, head held high. He never wavered. I guess it would qualify as a case of speaking truth to power, although he was severely penalized for it.
It's like that town had such intransigent battle lines drawn, that they were all very hardened by it. Everything they did, from framing Avery the first time, to going back and burying him under the jail the second time—that is some hardcore feuding going on.
Maybe we just don't get it.
The staged disappearance and other non-death theories - please help me understand.
ReplyDeleteby Dontgetstrange
There is a lot of commentary on the sub that questions whether there is valid evidence that TH is dead based on the physical and scientific evidence produced at trial. I totally get that and agree. I totally agree that this helps to show how absurd SA and BD's convictions are.
I get that the timing of Teresa's disappearance in relation to Avery's civil case couldn't have been more fortuitous for LE and the State and that that means we should question everything related to this case. I believe evidence was planted.
But I am still struggling with understanding the stage disappearance and other non-death theories. What will help me (and I presume others) is specifics that point to more than just statements that there is no physical proof that she is dead and that evidence was planted.
If your theory is one of these please help me understand. I have read nearly every thread but I can't seem to pull this together in my mind. Is there evidence pointing to a planned disappearance I am missing?
CONTINUED...
ReplyDelete[–]JJacks61
There are a couple theories. Course Kratz has his ever changing theories, but ultimately he says SA and BD killed her and cremated her in the pit. Keeping in mind, somehow (through magic I guess) Avery was able to eliminate every trace of Teresa's dna (Brendans too) from his trailer/garage (but left his and Jodi's). But then he loses his magic and decides to leave trace evidence scattered all over the ASY. Avery knowing he was getting $450k dollars in the next few weeks just said screw it, I'm going on this rampage? I don't think so.
Another theory is that Teresa is still alive. The reasons for this is Teresa was never positively identified. There have been many heated debates about this, but this is a fact. The confusion comes from the mis-statements straight from Pagel, Culhane and others. 7 out of 15 loci markers is NOT a positive ID.
Just because someone cannot be eliminated from a dna profile does not make it a positive ID. You gotta let that sink in. The State claims 7 Loci markers is enough to make a positive ID. It's not, not by a long shot.
Then we get into how these bones were allegedly found and handled. There simply is no documentation to support the state's claims. So these bones could have come from anywhere. That's a big problem for many of us, regardless of what you believe. It would be different if there was an emergency that didn't allow for protocol to be followed, this simply wasn't the situation. Then allowing a veteran cop to get up in court and apologize for a massive breach in procedure is just embarrassing. AFAIK, he wasn't suspended or even disciplined.
Chain of Custody with the bones is also a problem for the State.
You mentioned the civil lawsuit and the timing of this event. Personally, I've never believed this was a coincidence. Something was a planned and executed thing to derail the civil suit. (Regardless if this was Teresa or not, I fully believe something was going to happen to allow LE to arrest Avery.)
Many people want to say there would be too many people involved. Not really, it only takes a few. Remember, LE had the ASY for eight days and executed at least 8 search warrants. (Might be more, can't recall atm) Also remember the people that should have been called were NOT allowed to be involved, like the county coroner.
Without getting into the whole shit story with Brendan, you have to consider motive. Steven had ZERO motive to hurt Teresa. The County had MILLIONS of reasons to hurt Avery. MOTIVE. Follow the money.
I HONESTLY don't know if she is dead. I think she is, but I'm NOT 100% positive. The state hasn't convinced me with their sleazy attempts. Kratz used the legal system like a club to benefit himself. He doesn't care about the Halbachs or Teresa. This was about getting a conviction at all cost. Avery HAD to be taken out of the picture.
Last thing I'll add. Avery did NOT get the $450k for his first wrongful conviction, the state kept that little pile of cash. How'd that happen? This didn't have anything to do with the Halbach case, right? But of course it did. Follow the money. MOTIVE.
https://www.reddit.com/r/TickTockManitowoc/comments/6w8nrz/the_staged_disappearance_and_other_nondeath/
MaM Forensic Files: 'evidence of WHAT?' (SA DNA in RAV4 evidence) (self.TickTockManitowoc)
ReplyDeletesubmitted 1 month ago * by OpenMind4U
I'm starting this post with my 'immature' visual presentation of blood in RAV4 based on SC forensic test results and other 'experts' testimonies.
http://imgur.com/a/1qQVd
'Red' dots are SA blood DNA on:
driver's seat (Item A6);
ignition area (Item A8);
front passenger seat (Item A9);
black CD case (Item A10);-------> this evidence was never tested for DNA but was referenced as SA full DNA profile, later on;
rear passenger door frame entrance (Item A12);
'Yellow" dots are unidentifiable DNA (we already talk about, just do 'search' for 'MaM Forensic Files' and you'll find that discussion):
floor between center console and drivers seat (Item A7)-----> this evidence was never tested for DNA but was referenced as SA full DNA profile, later on;
cargo area, driver's side floor (Item A11);
"Compact Flash card" from cargo area (Item A13A);
rear exterior door handle and LOCK of cargo door (Item A23).
'Blue' dots are TH blood DNA found inside of cargo area, on cargo door and on left side of cargo 'entrance' frame.
http://www.stevenaverycase.org/wp-content/uploads/2016/01/Steven-Avery-Trial-Exhibit-311.pdf
CONTINUED...
So, what I'll be talking about if we have discussed SA blood in RAV4 thousand times over? Ohhh well...I want to discuss this evidence a little bit differently, this time. I always said: look at ALL evidence with 'what's missing' and let ALL of that tells you the story.
ReplyDeleteThis time, I would like you to forget about all other evidence (hood, bullet, key, bones...) and simply concentrate on RAV4 blood evidence. Please take a look again on the drawing with all these dots. And I'll ask you this...
You have the murder case in which victim's blood DNA has been found in cargo area only, including internal cargo door. But the Killer's blood DNA is not in cargo...only inside, in 'driving area' (except, of course, erroneous Item A12)....You understand that the Killer was inside of the car and probably was driving this car because of ignition and gear shaft on center console...but all important victim's belonging were missing from cargo area and from glove compartment...and probably from the back raw seats as well...Did Killer took all of that? If yes then how: with hands or without?:). Did Killer drives this car before he killed the victim or after? In another words:
why Killer's blood is not in cargo?;
and if Killer dumped the body somewhere else and drives this car after body disposal then WHO opened and closed ALL RAV4 DOORS for him?;
what's wrong with the picture????!!!
Please don't tell me because of the rain therefore no external blood found....look! What do you see?
http://www.stevenaverycase.org/wp-content/uploads/2017/04/exhibit-137.jpg
Right!....at the minimum, the right rear passenger door handle (hello, Item A12) was protected!....
...and KZ told us about SA blood in his sink and experiment done by her experts who's claiming that all SA blood were planted (stupidly, btw...by dripping from pipette)...and we know how RAV4 was parked too close, in parallel with red car, which makes VERY hard to open the driver's door....so, why ALL SA blood is inside and absolutely NOTHING of his outside and in cargo???
I'll tell you what I think: when all will be done and over, KZ will reveal much worse 'story' behind SA blood in RAV4 than you ever imagine...it'll be much worse than hood and bullet evidence!
IMO, SA blood DNA in RAV4 will be the STRONGEST evidence of PLANTING than we ever see so far, in this case.
CONTINUED...
[–]OpenMind4U[S] 6 points 1 month ago*
ReplyDeleteSo sorry for delay response...It has been very interesting 'discovery' which for some reason I missed completely!!!...OK, let's talk about FLAKES.
RAV4 has Item A7 (see 'yellow' dot) which is SA blood DNA on front (on floor near console). I used 'yellow' color because SC had contradicting forensic reports for this item. And here is from KZ letter to Judge:
'Dr. Reich also examined Item A7 (Trial Exhibit 335), blood flakes recovered from between the center console and driver’s seat of the victim’s vehicle, to determine whether the DNA present was of sufficient quantity for radiocarbon testing. Dr. Reich determined that the quantity of DNA was too low for radiocarbon testing. Dr. Reich recommended that the flakes be sent to Dr. Mason to combine with the previously sent swabs to attempt DNA methylation testing again because only 1 nanogram of DNA is needed for a reliable DNA methylation test result. Mr. Avery’s counsel is expecting Dr. Mason to report on his efforts to conduct DNA methylation testing with the additional flakes added to the prior insufficient DNA samples from the swabs.'
http://media.graytvinc.com/documents/Zellner+letter.pdf
Meaning, KZ is waiting for Dr. Mason test result!!! And if Dr. Mason would NOT be able to perform his test (with COMBINED blood samples from more than Item A7) because not enough quantity to retract simple DNA quality - State will have HUGE problem on their hands...meaning, how come SC got SA DNA from Item A7 with full profile, without any problems...which swab did she used? which swab FBI used for their ETDA test??...IDK, maybe I'm wrong, but something is really big coming....and when I made my OP today, I simply used my 'gut feelings'...now, I have very-very good possibility that my 'gut feelings' were right on money.
[–]bonnieandy2 2 points 1 month ago
What do you mean "which is coming" KZ, has permission to do more testing? Or you just think it's coming?
CONTINUED...
[–]OpenMind4U[S] 2 points 1 month ago
ReplyDeleteIMO, TRACE test is 'coming'. We didn't see it's result, yet.
Fact is, we know from testimony what the truth is. Lab Tech Ertl testified that Averys blood was found on the floor in the bathroom, on the floor in the hallway, on the doorway leading to the bathroom, on the entry doorway (directly across the bathroom door), in the sink and on the vanity.
Furthermore, directly contracting your statement of "a drop on the floor" Ertl testifies to the following:
Q: one in the bathroom, one on the floor, right?
A: not just one, but several.
Q: okay. also one on the sink?
A: some in the sink and some on the vanity.
So. SA simply walks into his house & as he walks through that door, drops blood on the floor right in front on it and gets blood on that door frame. Then walks into the bathroom, which is directly in front of that entry door. And in doing so, gets blood on the door frame of the bathroom door, drops "several" areas of blood onto the floor of the bathroom and then drops more blood into the sink and on the vanity.
So, does that sound like a guy actively bleeding, leaving a trail of blood as he walks? Yes. Yes it does. He left all of this blood by simply walking into the bathroom, yet I'm suppose to believe he handled a body, opened doors & drove a car, leaving a mere six spots behind? All scattered throughout?
Simply doesn't add up. And common sense tells me that.
CONTINUED...
[–]Moonborne11 4 points 1 month ago*
ReplyDeleteI was just rereading KZ's letter to the judge and lo and behold this post comes up. Kismet. I've mentioned this before but here it goes...
Regarding A6, A8, A9, A10 and A12:
Dr. Reich said there was an insufficient amount of DNA on each sample to perform DNA methylation tests. Just to be sure, he recommended that Dr. Mason confirm his evaluation. Dr. Mason found that DNA was so low (even undetectable on some samples) that the test could not be performed.
Must need a lot of DNA to do this test right? Nope. ONE nanogram is all that is needed. That is 1/billionth of a gram.
To get one nanogram the defense experts are going to have to combine the above mentioned samples plus A7. Absolutely mind-boggling.
IMO, SA blood DNA in RAV4 will be the STRONGEST evidence of PLANTING than we ever see so far...
Totally agree. Or the lack of DNA.
I'm not even sure we are seeing real blood in the RAV or maybe its really watered down. I wonder if that is the reason they used a blue hue on the lab pics. Would it make it appear red/more red?
[–]Moonborne11 2 points 1 month ago
"It means that SWABS from RAV4 which KZ got it where NOT the swabs SC was taking her DNA from!!! Another swabbing????????"
I'm thinking the same thing. Another switcheroo. Do you know if she would have to keep her original sample?
BTW, meant to say I like your graphic . Interesting how the planter/s didn't get close to the cargo area. Wonder why?
[–]OpenMind4U[S] 2 points 1 month ago
Hey, maybe my 'Freudian slip' (by including blood items from GrandAm in my original drawing) was exactly what happens here: SC used SA blood from GrandAM in her test and in her reports (and shared these swabs with FBI for EDTA testing) but gives KZ non-usable, dissolved swabs from the sink which Dr. Mason is currently working on, now?????...and therefore KZ is asking for GrandAm swabs to re-test?????...wow...this would be great if KZ could proof such 'switch'!!!!
https://www.reddit.com/r/TickTockManitowoc/comments/6pad3d/mam_forensic_files_evidence_of_what_sa_dna_in/dkod7if/
[–][deleted] 3 points 1 month ago
ReplyDeleteYour welcome. Now answer me this, if you can.
On Nov 7th, SC collects blood found in the Rav and got 14 total spots, and labeled them A-14. (She later adds A23 after Mr. Riddle gives her that swab pg. 71-72 cross exam by Buting).
From those blood spots, according to her, out of those 14, only 4 were contributed to SA:
(A6) Driver Seat (A8) Ignition (A9) Passenger Seat (A12) Rear Passenger Door Panel
So. That equals 4 total matching SA. KZ (and even Buting during cross) claim there to be 6 total stains matching SA.
The other two areas KZ mentions in her brief that would bring the total to six are:
(A7) Driver Floor (A10) CD case
So. My question is. Why in her original findings did SC not mention the driver floor or cd case?
And. Were these items tested again, and by who? I'm assuming there is paper work (or lab testing) that I'm missing. Just confused why SC originally only attributed 4 stains to SA (and then two more were added).
What am I missing?
[–]OpenMind4U[S] 6 points 1 month ago*
Why in her original findings did SC not mention the driver floor or cd case?
Very interesting questions...Let's talk about CD first, Item A10. In preparation for 'dots' image, I was thinking add this 'red' dot or not because in her first original report, SC only mention about presumptive test positive for Item A10.
'Chemical analysis of the reddish/brown questioned stains of items A1-A4, A6- A10 , A11, A12, A23 and B1-B5 indicated the presence of blood.'
And after that - nothing about DNA retrieval for this item. Zilch, zero...so, I was thinking that she did NOT perform DNA on it at all...BUT in her much later reports, she was referencing this Item A10 as evidence with full SA DNA profile...hmmm...look yourself:
http://www.stevenaverycase.org/wp-content/uploads/2016/02/Trial-Exhibit-315-DNA-Report.pdf
To me it could mean only two things: SC is HORRIBLE report writer (and she already made typo with reference to pap smear as the partial DNA) OR SC is conniving bitch!...I think it's BOTH!!!...so, Item A10 is a questionable shit as well.
Now, Item A7...this is the same story...she got presumptive positive test (yes, it's blood) but who's blood she never said...but referenced later as it was SA DNA....smoke and mirror, indeed.
So, a lot of other testimonies were contributed to this CD case, identifying as a LOT of blood was there, on it...and if there was a lot of blood then I cannot understand why we cannot see her DNA work on these stains?...problem should not be in quantity but what? in quality? If in Quality then why did she compare such non-DNA profile to other people's DNA profile????
CONTINUED...
[–][deleted] 6 points 1 month ago
ReplyDeleteYep. You're right.
She clearly does NOT add items A7 or A10 in matching SA in her very first report.
Then. Later on, during the Dec. 4th testing sheet (the one you attached) she adds both of those as testing positive, matching SA.. her statement report
"The profiles developed between items:
KL (BJanda) KM (BDassey) KN (EAvery) KO (CAvery) and KP (DAvery)
were not consistent with the PREVIOUSLY DEVELOPED PROFILES.. .. items A6 -through -A10."
So she automatically includes A7 & A10 on Dec 4th. But left them out in November when she only notes A6, A8, A9 & A12 as matching SA.
Would love for somebody to explain this to me who may understand this paper work. Because it doesn't add up.
[–]OpenMind4U[S] 5 points 1 month ago
Ohhh her paperwork is horrible...One of our best science guy on old MaM did create spreadsheet and we was working with all her markers and items...and still couldn't get it completely because one report contradicts another...the only thing SC was good about is copy/paste of markers itself...never made mistake there....dammit.
[–][deleted] 6 points 1 month ago
Not to mention she completely admits to having all those SA & TH buccal swaps at her desk (and not in the evidence lockers were they should be) when she tested the bullet (one of the last possible items she can put TH in the garage).
People can roll their eyes all they want, but it is found that Lab Techs have been caught planting & fudging evidence in many cases across the country. That is undisputed.
Her work has been exposed & doesn't look good.
[–]OpenMind4U[S] 3 points 1 month ago
Her work has been exposed & doesn't look good.
Not look good at all....and if her work not looks good then Crime Lab work in ALL its cases would not look good...= a lot of $$$$$$
[–]OpenMind4U[S] 4 points 1 month ago
Did you read this comment yet????
I was just rereading KZ's letter to the judge and lo and behold this post comes up. Kismet. I've mentioned this before but here it goes... Regarding A6, A8, A9, A10 and A12: Dr. Reich said there was an insufficient amount of DNA on each sample to perform DNA methylation tests. Just to be sure, he recommended that Dr. Mason confirm his evaluation. Dr. Mason found that DNA was so low (even undetectable on some samples) that the test could not be performed.
Must need a lot of DNA to do this test right? Nope. ONE nanogram is all that is needed. That is 1/billionth of a gram. To get one nanogram the defense experts are going to have to combine the above mentioned samples plus A7. Absolutely mind-boggling.
IMO, SA blood DNA in RAV4 will be the STRONGEST evidence of PLANTING than we ever see so far...
Totally agree. Or the lack of DNA. I'm not even sure we are seeing real blood in the RAV or maybe its really watered down. I wonder if that is the reason they used a blue hue on the lab pics. Would it make it appear red/more red? Disclaimer: I did not go back and read SC's findings on these items although it would be interesting.
...are we dealing with another SWABBING here?????
https://www.reddit.com/r/TickTockManitowoc/comments/6pad3d/mam_forensic_files_evidence_of_what_sa_dna_in/
[–]TLCan2 3 points 1 day ago
ReplyDeleteI pretty much decided BD was likely innocent and was the unfortunate member of the family that questioning revealed was a potential alibi at trial. Otherwise I was on the fence.
I truly tackled everything I could find like a crazy person until I had exhausted what was out there and came to two conclusions: 1) At every turn there were procedural errors on the part of nearly every state investigation and/or witness that begged an explanation. 2) The timeline of known events, particularly phone calls, made the prosecution's presentation of events seem absurd.
I think one of the strongest pieces of defense in the timeline were the two calls between SA and his jailed fiancé. It's already a burdensome timeline, especially considering this is a business that was currently open to the public and family members and their possible visitors potentially coming and going. The prosecution's timeline would mean every angle was taken into account, every bit of physical evidence planned for and then a dash of just plain luck no one except SA's maleable nephew heard anything.
The state likely would have preferred having him club her and take her away to a secluded area...but then they'd have to explain the darn jail to landline calls there was no getting away from. The ridiculous notion of putting her in the RAV4 and him leaving DNA evidence behind due to that one mess-up in an otherwise masterful plan strains the imagination. These are areas where BD was certainly led...LE knew it sounded ridiculous but had to tie in the only thing with SA's physical evidence.. BD originally said they moved her on a creeper...which would be a logical guess and could be burned if a wooden one or cleaned much easier.
I personally think LE got the RAV4 on the 3rd. I think possibly between RH and Sgt C, they ended up at SA's on the 3rd as well. We know Sgt C went and questioned SA. Maybe he even learned SA would be away that evening. A trained nurse goes to collect evidence (hair, saliva, etc.) and stumbles on fresh blood. There isn't much, but enough to protect and prep a plant. They don't dare plant before moving the RAV4 to SA's in case they are caught and have to surrender the vehicle.
Anyway, it was the timeline that most convinced me. Given more time things might have been doable. Also a more cohesive confession or going ahead and letting BD be the alibi and sharply questioning him on stand might have made the difference. Obviously the diversion from normal procedure on the part of police was highly questionable too.
https://www.reddit.com/r/TickTockManitowoc/comments/6xaoz5/a_snippet_during_the_first_sa_th_interrogation/
[–]HuNuWutWen 7 points 2 months ago
ReplyDeleteAttorney Zellner's brief reads like 50 Shades of A Mistrial...
... everything is in there, it's almost TOO MUCH to digest...
... unlike many PCR proceedings, where Defense is arguing one or two potential violations/errors in process or application, this case is a veritable PCR for DUMMIES... in this instance, the "DUMMIES" are the Wisconsin DOJ...
... Brady ?... 4 violations at last count ?...bwahahahahaha...
... IAC ?... no problem, Dean and Jerry, bless their hearts, are hopelessly out-gunned by the State's multi-level prejudice against their client...there are several instances in this Gong Show which meet the prongs of Strickland, as I understand it...and, this needs to be said, D&J could've likely gotten a mistrial, but Steve had no money left...so, there's that...
... it is easy to see in hindsight, "if" D&J had refuted the State's "experts" with their own "experts", this case likely would never have gone to trial, let alone put 2 guys away for LIFE !...
... the testimonial evidence, the trial record, the "things" these "experts" have said, while under oath ?...these "experts" have uttered provably false statements, they are talking nonsense, relative to their now debunked "evidence"... they can't change it, they can't defend it, so, what's left to do ?... the wheels fall off, they are fucked ... hahahaha...
... the "Cause of Death" ?... they have no corpse, they have absolutely no legitimate method of determining how a missing person has died... and in this case, certainly no legitimate method of determining that the victim was choked, slashed, cut, stabbed, punched, hair cut, double-raped, shot 2,5,8,10 or 11 times...yet, Kratz and Krew are poisoning the airwaves with all manner of bullshit ...?... how is this okay with judge Willis ?...
...they don't even have a crime scene...
... but, the idiot judge allowed all of this nonsense...and he "helped the cause" by imposing Denny... Willis is a disaster...impartial ?... please...
... reasonable minds will agree, the State doesn't have a cogent "theory" of this alleged crime...
... but it's not so simple as just taking "another bite at the apple"...
... Defense does not get a "do-over" just because they found an "expert" with an opinion that agrees with their own...
... that said, when we apply Zellner's "new" information in the brief, to the Trial Record testimonial/physical/forensic evidence, one will reasonably question the blatant disparity of opinions relative to individual items of evidence, and the ridiculous prosecutorial violations tolerated by Judge Willis...
... it just goes on and on, the brief is loaded with all kinds of creamy, nutritious goodness...
... Ms. Zellner is exposing the Morons of Manitowoc...and it sure looks good on them...
https://www.reddit.com/r/TickTockManitowoc/comments/6o7e8p/need_a_little_help_understanding_from_a_legal/
[–]HuNuWutWen 8 points 3 months ago
ReplyDeleteThe "bullet", is the only bullet existing in the trial original record...
...so it's the only possible "bullet" which is utilized by the prosecution, when postulating a narrative of the crime...
...so any bullshit about "oh, it was a different bullet that beveled those skull fragments..." ...NOPE, SORRY, you can't just invent another piece of evidence, inject it into the sealed trial record...lol...
... expert testimony refers their expert opinions relative to this specific bullet to support their assertions and "consistent with..." testimony, with the full intent to influence the jury...
...it's this specific item of evidence which has been subjected to NEW testing, and subsequent NEW results...
...a process which was not available in '07...
...these NEW results, NEW evidence...DIRECTLY and UNDENIABLY CONTRADICT the testimony contained in the trial record...
...consider for a moment what this fact means...
...as we all know, you can't "change" the existing trial record...
...yet all of the testimony regarding this bullet is now proven to be incorrect, refuted, nullified, nonsense...WRONG...
...therefore, when considering the probable impact this NEW evidence would have on the outcome...
...at a minimum Avery gets a new trial...
...and that's this NEW evidence just standing on it's own...
...when combined with all the other good stuff that KZ and her team have brought to the fight...
...MTSO...take a knee...own up...man up...no huh ?...lol...
https://www.reddit.com/r/TickTockManitowoc/comments/6gnakg/is_kks_violation_of_sas_due_process_the_most/
Kathleen Zellner @ZellnerLaw 13m13 minutes ago More There has not been a single test result that implicates Steven or Brendan in TH murder. #makingamurder #kratzfiction by PlayswthFire in TickTockManitowoc
ReplyDelete[–]HuNuWutWen 4 points 3 months ago
Ms. Zellner has effectively shredded the State's case from every available legal perspective, and in the process drawn attention to several sadly undeniable faults and flaws which have infected our judicial system...
...all of the testing/re-testing, and subsequent "expert" opinions to refute the State's "experts", really serves to illustrate a couple of inconvenient truths...
...first and foremost, fight fire with fire, for every "expert" they throw at you, you've got to match and refute with your own, and KZ shows up with the "A" TEAM, God Bless Her...
...kinda like mutually assured destruction, without the nukes...
...also, let lawyers deal with the LAW, Dean and Jerry are both very capable professionals, but do not expect them to extract anything scientifically relevant, or beneficial to you, from the other side's "experts"...who is paying those "experts" ?...why ?...they aren't there to speak in your favor, so...
...but really, except for the simplest, least technically complex items of evidence, "expert" opinions are nothing more than a bunch of confusing stuff that NON-expert jurors DO NOT understand, because they're not "experts" themselves...and that includes fucking idiots like judge Patty Witless...
...so, what appears as multiple instances of IAC, in this case, are largely attributable to unrealistic expectations due to dwindling resources..
...not an excuse so much as a sad truth...
................................................................................................
... how many of us can access resources in the amounts required ?..
...the economics of this Zellnami would bankrupt all but the 1%...
...KZ, and her firm are in for 1 Million bucks already...where would Steven be without her ?...
...we need to address the economic inequity of our system...
................................................................................................
...KZ has dealt a serious blow to the State's entire case with that one tiny fragment of "evidence"...the bullet...
...everyone from Kratz right through to Culhane, Eisenberg, over to Fassbender/Weigert, Remiker, sandwiches by Jimmy "lightfingers" Lenk, they are ALL there...
...EVERY single one of those lying, incompetent bastards have woodchips and paint droplets on their hands, and in their microscopes...HA fucking HA...I LOVE it...
................................................................................................
...oh, and when this over, KZ should be nominated for President...
https://www.reddit.com/r/TickTockManitowoc/comments/6gd727/kathleen_zellner_zellnerlaw_13m13_minutes_ago/
Compilation of arguments for Evidentiary Hearing (self.TickTockManitowoc)
ReplyDeleteby ThackerLaceyDeJaynes
Key points argued by Zellner to date for an Evidentiary Hearing:
Ineffective Assistance of Counsel:
Failure to hire experts to combat State's 14 experts
Failure to investigate any other suspects that would meet Denny
Failure to investigate where blood source came from
Failure to demonstrate the Rav4 key was planted
Failure to determine Rav4 key was sub key and not master
Failure to investigate Colborn's dispatch call about plates
Failure to investigate Hood Latch Swab Chain of Custody
Failure to construct accurate timeline for TH or SA
Failure to detect Voicemail deletions from TH's phone
Failure to investigate Maribel Caves Park and request DNA
Failure to investigate possible burial sites
Failure to impeach Bobby Dassey's testimony as false
Failure to realize SA's rights had been violated with illegal groin swab
Brady Violations:
Lost Zipperer Voicemail
Concealed amount of gas in RAV4
Concealed knowledge that RAV4 was on Randant's property
Colborn failed to file report about witness seeing RAV4 at Hwy 147 and East Twin River Bridge
Detective Velie's CD of computer examination
Edited video of fly over showing RAV4 was not on Avery property during crucial time period.
New Evidence:
The bullet did not pass through TH's skull
Brain Fingerprinting (?)
Hood Latch Swab Tests
Sub-Key DNA Tests
BT and ST knew TH left property
Barb tried to remove evidence
Witness affidavit saying TH had her day planner 10/31. How was it in RH's possession?
Now, some of these can be interchanged for another. This is just a quick list I've made and may not include everything. I think it's very interesting everything KZ has uncovered to date, and she isn't done yet.
In my humble opinion, a hearing will be granted.
*Edited to add: I watched a CNN show last night focusing on the Andrea Yates case. Her entire conviction was overturned because of false testimony by the State's psychiatrist. He had testified that Andrea got the idea to drown her children by watching a Law and Order episode depicting a Mother drowning her kids. No episode existed. That's it. False testimony=overturned conviction. If SA doesn't get an evidentiary hearing, it would be ludicrous.
https://www.reddit.com/r/TickTockManitowoc/comments/7ebut3/compilation_of_arguments_for_evidentiary_hearing/
[–]dvb05 6 points 1 day ago*
ReplyDeletePosting from Scotland, UK.
I watched MaM on Netflix within a few weeks of it's UK release and was enthralled from the first episode.
My initial afterthought was how could a wronged man who spent several years inside for a crime he did not commit go from SA - local innocence project poster boy, soon to become a very rich individual (where he and his family would have a solid financial future and at the same time have the very people who wronged him brought to justice) then turn into the killer of an innocent young photographer?
I not long after went in search for forums to gain some insight into was I in the minority with this view of not thinking he was guilty beyond a reasonable doubt or not and landed on the original MaM sub.
I was a tad confused at the ardent guilter approach as my feeling was, why are you arguing something you are solid in your view was justice served against others that feel different - why the haste and mockery? I then thanks to these forums got my teeth sank into the trial transcripts and later CASO reports and was blown away at a monumental amount of further questionable LE ethics and lack of investigation into others with opportunity in better detail. MaM could easily have had a whole lot put in there that would put LE in even muddier waters.
I enjoy reading and engaging in the forums, there are obviously so many differing points of view and contributors who's efforts are both staggering and well articulated in their content and reasonings.
I learned more from here than the MaM documentary based on official documented facts and I ALWAYS came at it with an open mind and still do, I had made several visits to the other place as I have always said a healthy discussion/debate can often rely on the other side of the fence and had no issue with the forums coming together again like before but of course reality then kicks in and you see the extent that some internet flamers and trolls will go to in order to cause trouble, kill the debate and drive others away from posting and you accept the posters need to be segregated for a reason even though sadly there are plenty who can debate sensibly.
CONTINUED...
Anyone coming at this with open eyes and an awareness of the true facts should ask themselves why nothing in the TH murder case looks right? All evidence against SA is questionable, the facts show should be suspects were given carte blanche to do as they pleased while all time and effort by LE was spent making sure the SA problem went away.
ReplyDeleteThey turned some of his so called "family" against him in BJ now BT and her odious creep ST as well as of course BoD and look at the extent LE ultimately went to, a 16 year old kid BD with development challenges was framed as an accomplice - this should show anyone the level this shower of deplorable reprobates were happy to stoop down to.
Len K, Michael O'K.....Andy C, James L, Mark W, Tom F, Ken P, Jerry P, Ken K, Shelly C, further back Gene K, Tom K, Dennis V and plenty more....
There is a reason so many of those names are shady as f..k, it's because we have learned of their deceit and collusion to save the skin of a corrupted police county and those running it who yet again it appears have framed the same man for a different crime he did not commit while others have gained and people in serious shit have walked away scotfree until now.
I would ask anyone with doubts or concerns on KZ to stand down, this woman is without question the very best at what she does, you may question her ways or criticise a certain method (even I didn't like the Twitter stuff as much) but I have every faith in her - she is a remarkable human being who has performed wonders against all odds and against some of the most deplorable cases of injustice you could learn about. Her client Kevin Fox would be just one of many good examples and just see how that ended.
People in positions of authority have evil, LE when under attack can group together and coverup the lie, SA's 1985 botch up should teach you that and so it does not require a huge leap to understand why key individuals would ensure evidence documents and testimony could all be used against someone for a bent narrative like the bullshit KK and JP fed the press.
Tick Tock you evil b******s.
https://www.reddit.com/r/TickTockManitowoc/comments/7fdpvk/why_this_case/
[–]PayJay
ReplyDeleteIt's painfully obvious that they planted the key.
As it has been demonstrated, there isn't a court in Wisconsin willing to come within miles of the possibility of overturning either of these verdicts.
As the evidence mounts, it becomes more and more obvious why that is. There is a top-down order to keep this case closed because of how many people will be compromised if it's ever made official what actually happened. The cover up is still active. Wisconsin is not going to crucify their own police this way, no matter how much they deserve it.
Furthermore, it wouldn't end with the police. The DA, Attorneys General, the Governor... everyone is complicit in the crime, so they’re all complicit in the cover up, which now after Zellner has obliterated their false logic, has turned from cover up to stonewalling. It's "shut this down at all costs." That's a phrase you'd likely see in many email inboxes in the Wisconsin judicial system.
This is Fargo in real life. It really is.
I know Zellner knows what she's doing. But you said it yourself. The players in this game are CORRUPT. This time, the entire case hinges on this. Her previous exonerations were clean cut and didn't necessitate the police or government officials admitting to any wrongdoing. Chalked up as honest mistakes. But with Teresa's case, that's not possible. The proof of Steven's innocence is largely contingent on the acceptance that the cops not only planted evidence (which is an easier pill to swallow, we nail cops for this occasionally) but also that the cover up reached up into the high ranks to possibly even the governor’s office (a much larger and nastier pill), not to mention the obvious but denied fact that Manitowoc had it out for Steven and targeted him.
This is all disregarding the money factor. Add that in and you realize the scale of what we are up against. Forget bankrupting Manitowoc. A lawsuit from Steven and Brendan this point after a successful exoneration could bankrupt the entire state of Wisconsin. $36 million is chump change now. Upper 9 digits at the very least. Doubled because now we are talking 2 people.
The more WI digs their heels into this the more important it is for them to squash Zellner, because each successive step they take to blatantly derail attempts to free him are now seen as more complicity and covering up. If they lose this they are FUCKED. They will all go down.
But since flat out proof isn't enough to sway them, I'm starting to wonder what the odds really are.
Again like you said, "The only people who refuse to see that all this evidence was planted are those who have a lot to lose if the truth comes out", but instead it's not them refusing to see the truth -- they know the truth -- it's them refusing to let go of the cover up because it well bury them in a world of hurt.
Zellner isn't up against guilters -- she should stop referring to them that way. They aren't guilters. They are flat out Liars. Bad, bad people. And if not, they are acting under threat of those bad people.
Zellner is up against people fighting for their very livelihood. This creates desperation.
On a positive note, the seeds are planted. I believe trust in Wisconsin police and politics is at an all time low. It's really up in the air now. I pray every day for justice. We aren't going to get there with twitter pep rallies.
https://www.reddit.com/r/TickTockManitowoc/comments/7ka3p0/kz_playing_with_the_mouse/
[–]BigBankHank 10 points 3 days ago
ReplyDeleteIt would be nice to see this issue get a fraction of the press attention and interest from the public as the Avery case.
The problem runs so deep, and it’s so misunderstood, it’s hard to know where to start. But here’s a suggestion:
Every time you see/hear someone — whether a journalist, author, public figure on Twitter, or reddit commenter — sincerely use the phrase “innocent until proven guilty,” maybe take that opportunity to explain that the concept is explicitly not a thing in the American justice system.
Everyone needs to understand that “innocent until proven guilty” is a convenient mythology.
And it’s especially important that they understand that it’s not that it doesn’t apply because the system is broken — it doesn’t apply because the system is working precisely as intended.
All it takes for Americans to lose everything is to be arrested. And because we give our LEOs so much discretion, the bar for arrest is disturbingly low.
Prosecutors and cops (and in most cases, disturbingly, public defenders and judges) work hand in hand — explicitly not in the pursuit of justice, but in the pursuit of convictions.
Police routinely break the law, in spirit and letter. They punish suspects for doing what any good defense attorney would tell them to do, like decline to talk to police without a lawyer. They routinely lie on arrest reports and in court, and they do so comfortably, with impunity, knowing that there is no mechanism to hold them accountable. Prosecutors refuse to drop charges in the face of overwhelming exculpatory evidence, and then fight to keep that evidence from reaching judges an juries. Perhaps most disturbing of all, public defenders and judges act on the cynical assumption that everyone in the system is guilty or they wouldn’t have been arrested in the first place.
Anyway, I hope that people who have been motivated to action by the Avery case will continue to press for reforming the disincentives for justice that are woven so deeply into the system. I believe change has to begin with educating people about how the system really works, and how far the reality is from what Americans typically assume.
The good news is that this really is a bipartisan issue. The truth is disturbing enough to provoke outrage across the political spectrum.
https://www.reddit.com/r/TickTockManitowoc/comments/7qsbqo/kz_posted_a_great_article_on_twitter/