EPISODE 6:
"TESTING THE EVIDENCE"
THE MYSTERIOUS BULLET
Now we come to the mysterious bullet found in Avery’s garage. There are so many uncertainties about the bullet that I really don’t know if it puts us nearer or farther away from Avery. The devil, as always, is in the details. I simply must have more information about the slug before I can form an independent opinion. However, lack of that detailed information doesn’t keep me from some parameters by which we should judge the evidence, and may give some insight to those of you who are familiar with the ballistics and physical evidence reports that may or may not be 'out there.'
Was the bullet ‘planted’? Well, Buting and Strang very appropriately question why, during five search entries during the week of November 4, the bullet was never discovered. I think that's an excellent question. However, the failure to find the bullet is not prima facie evidence that the slug was planted. Searchers are not infallible. There are other possible reasons that the bullet would not have been found in the earlier searches, and one main possibility revolves around what searchers were looking for in the earlier entries.
Was the bullet ‘planted’? Well, Buting and Strang very appropriately question why, during five search entries during the week of November 4, the bullet was never discovered. I think that's an excellent question. However, the failure to find the bullet is not prima facie evidence that the slug was planted. Searchers are not infallible. There are other possible reasons that the bullet would not have been found in the earlier searches, and one main possibility revolves around what searchers were looking for in the earlier entries.
INSIDE OR OUTSIDE THE SCOPE?
I have been on searches where agents were searching for large items and therefore didn’t look in places where that large thing wouldn’t fit. For instance, if I was looking for a minivan, I might not look inside a closet. Warrants are specific for what is being sought. If my warrant was an authorization to search for a rifle, I likely wouldn’t look in a shoe box, and if I did and found illegal drugs, that part of the search might be thrown out for going "outside the scope" of the search warrant.
Therefore, based on “what were they looking for” in the earlier searches, then it’s possible for an item to go undetected. I mean, if they were looking for Teresa’s body, and the body wouldn’t fit under the compressor, why look there? (Except that under the plain sight doctrine, anything that is out 'in plain sight' is legitimately 'in-play.') The determining factor, then, would be what items were listed in the November search warrant as objects of the search. If the search listed anything as small (or that could be as small) as a bullet, then there is no logical reason the bullet wasn't found.
At a potential murder scene, you wouldn’t know what you were looking for. Frankly, you might be looking for a spot of blood the size of a pinhead. I find it difficult to understand that if they searched for eight days and collected more than 950 items, that they didn’t go through the garage with a fine-toothed comb. In fact, at the time of the March entry when the bullet was found, there appeared to be chalk outlines already on the garage floor. This indicates a search for physical evidence on the floor, not just a body. And the physical evidence for which they searched, as I said, could be the size of a pinhead. I have trouble understanding how they could miss the bullet. But I cannot say with authority that it is impossible that they did. Nothing about their procedures indicates to me that they were particularly well-versed in the subtleties and demands of crime-scene searches. Ultimately, as an investigator, I would want to know why the bullet was not found in the earlier searches, and I’d like to get a reasonable answer.
That said, regardless of how long “the bullet” had been under the compressor, I have some serious issues with the slug itself.
I remind you all that I don't know what caliber the bullet is, at least from the documentary. That information is crucial in evaluating its importance. However, from the ruler in the photo, it appears that the bullet is likely a .22 to .25 caliber bullet. I suspect that it's a .22, because it's ubiquitous, and the .25 is usually used only in semi-automatic pistols that are rarely found in rural farm communities. Either way, both fire extremely small bullets--in fact, they are very close to the smallest projectile classified as a 'bullet.' To put it in perspective, the diameter of the .22 is only 43/1,000ths of an inch wider than the projectiles fired from kids' pellet guns.
The discussion is going to be a little technical now, so to ensure we're all on the same page here, lets look at some terms of art. A cartridge or "round" is the entire unit most people colloquially refer to as a “bullet.” In reality, the 'bullet' is only one part of the object. The cartridge consists of a casing [2], usually made out of brass, a primer [5] in the center of the rim of the casing [4], and propellant [3], usually smokeless powder, inside the casing, all of it topped with a bullet or "slug" [1], which is pressed into the neck of the casing. So the term ‘bullet,’ in reality, only refers to the part of the ‘round’ which leaves the gun. The casing is what remains with the gun or in the area of the gun.
I have been on searches where agents were searching for large items and therefore didn’t look in places where that large thing wouldn’t fit. For instance, if I was looking for a minivan, I might not look inside a closet. Warrants are specific for what is being sought. If my warrant was an authorization to search for a rifle, I likely wouldn’t look in a shoe box, and if I did and found illegal drugs, that part of the search might be thrown out for going "outside the scope" of the search warrant.
Therefore, based on “what were they looking for” in the earlier searches, then it’s possible for an item to go undetected. I mean, if they were looking for Teresa’s body, and the body wouldn’t fit under the compressor, why look there? (Except that under the plain sight doctrine, anything that is out 'in plain sight' is legitimately 'in-play.') The determining factor, then, would be what items were listed in the November search warrant as objects of the search. If the search listed anything as small (or that could be as small) as a bullet, then there is no logical reason the bullet wasn't found.
At a potential murder scene, you wouldn’t know what you were looking for. Frankly, you might be looking for a spot of blood the size of a pinhead. I find it difficult to understand that if they searched for eight days and collected more than 950 items, that they didn’t go through the garage with a fine-toothed comb. In fact, at the time of the March entry when the bullet was found, there appeared to be chalk outlines already on the garage floor. This indicates a search for physical evidence on the floor, not just a body. And the physical evidence for which they searched, as I said, could be the size of a pinhead. I have trouble understanding how they could miss the bullet. But I cannot say with authority that it is impossible that they did. Nothing about their procedures indicates to me that they were particularly well-versed in the subtleties and demands of crime-scene searches. Ultimately, as an investigator, I would want to know why the bullet was not found in the earlier searches, and I’d like to get a reasonable answer.
That said, regardless of how long “the bullet” had been under the compressor, I have some serious issues with the slug itself.
I remind you all that I don't know what caliber the bullet is, at least from the documentary. That information is crucial in evaluating its importance. However, from the ruler in the photo, it appears that the bullet is likely a .22 to .25 caliber bullet. I suspect that it's a .22, because it's ubiquitous, and the .25 is usually used only in semi-automatic pistols that are rarely found in rural farm communities. Either way, both fire extremely small bullets--in fact, they are very close to the smallest projectile classified as a 'bullet.' To put it in perspective, the diameter of the .22 is only 43/1,000ths of an inch wider than the projectiles fired from kids' pellet guns.
The discussion is going to be a little technical now, so to ensure we're all on the same page here, lets look at some terms of art. A cartridge or "round" is the entire unit most people colloquially refer to as a “bullet.” In reality, the 'bullet' is only one part of the object. The cartridge consists of a casing [2], usually made out of brass, a primer [5] in the center of the rim of the casing [4], and propellant [3], usually smokeless powder, inside the casing, all of it topped with a bullet or "slug" [1], which is pressed into the neck of the casing. So the term ‘bullet,’ in reality, only refers to the part of the ‘round’ which leaves the gun. The casing is what remains with the gun or in the area of the gun.
What was found under the compressor in Steven Avery's garage was the bullet [1], in the diagram above. Once a bullet has been fired, the empty casing will remain in, or within the immediate vicinity of the gun, and it would likely be possible to determine which casing matched the fired bullet, if the slug was found.
.22LR bullets "mushroomed" UNPLEASANT DETAILS
The problem I have with the retrieved bullet has to do with several issues, and I’ll try to explain them without getting too graphic. I am (or at least was) a trained sniper. I have been educated about the physics of a bullet striking the head. The head will stop a bullet as well or better than any other part of the body. Why? Because the skull -- especially the side -- is a pretty stout section of bone, designed to protect the brain.
A bullet slows rapidly when it hits thick bone, and slows almost as rapidly when it hits a fluid-like substance—say, a brain. When the bullet hits the soft tissue, most are designed (especially hollow-point bullets) to "mushroom," which increases their diameter, creates a wider wound channel, and transfers more kinetic energy into the target. The more a bullet mushrooms, the less likely it is to exit the body. This 'mushrooming' is facilitated in part by the extremely soft lead used in many bullets.
The problem I have with the retrieved bullet has to do with several issues, and I’ll try to explain them without getting too graphic. I am (or at least was) a trained sniper. I have been educated about the physics of a bullet striking the head. The head will stop a bullet as well or better than any other part of the body. Why? Because the skull -- especially the side -- is a pretty stout section of bone, designed to protect the brain.
A bullet slows rapidly when it hits thick bone, and slows almost as rapidly when it hits a fluid-like substance—say, a brain. When the bullet hits the soft tissue, most are designed (especially hollow-point bullets) to "mushroom," which increases their diameter, creates a wider wound channel, and transfers more kinetic energy into the target. The more a bullet mushrooms, the less likely it is to exit the body. This 'mushrooming' is facilitated in part by the extremely soft lead used in many bullets.
(L-R) .308 Sniper cartridge, 9mm pistol cartridge, .22LR cartridge. Snipers fire high-powered rifle caliber rounds (frequently .308 caliber) weighing about 10.5 grams, which travel at approximately 2,700 feet per second (1,840 mph). These rounds, when they impact the skull, usually travel through the head fairly easily. But the bullet in the .22 “Long Rifle” or ‘LR’ cartridge (which I’m estimating may be the caliber of the bullet in the photo in Avery’s garage), weighs only about 2.5 grams (1/4 of the .308 sniper bullet) and travels at about 1,400 fps, or 975 mph (about half the speed of a .308.)
The .22LR, therefore does not, except in the most unusual circumstances, exit the skull after it is fired into the head. It lacks the mass or velocity to punch through the second wall of bone. It is my opinion that if Teresa Halbach was killed with a .22LR bullet to the head -- even at point-blank range -- the bullet never exited her skull. So why, then, would it be on Avery’s garage floor? And why, then, does it even still exist? It should have been destroyed in the fire.
The .22LR, therefore does not, except in the most unusual circumstances, exit the skull after it is fired into the head. It lacks the mass or velocity to punch through the second wall of bone. It is my opinion that if Teresa Halbach was killed with a .22LR bullet to the head -- even at point-blank range -- the bullet never exited her skull. So why, then, would it be on Avery’s garage floor? And why, then, does it even still exist? It should have been destroyed in the fire.
For a fire to have been hot enough to destroy Teresa's body the way it did, the temperature of the fire would have been had to of been over 1000°, probably closer to 1500°. Lead, which makes up the vast majority of .22LR bullets, melts at 621°. You see what I'm getting at here? If it was a .22, the bullet stayed in the skull. If the body was burned, the bullet melted. Period.
Could she have been killed by a larger caliber bullet that actually excited the skull? Certainly. But the bullet the prosecution claims bears Halbach's DNA is a .22, which poses a real problem for me.
What, you ask, if for some odd reason the .22 exited her skull? If the bullet which killed Teresa Halbach (if indeed a bullet ended her life), exited her skull, it would do so at a relatively high rate of speed. It would not have come out of her head and fallen onto the ground a few inches from her. It would've continued until it impacted something solid and then fell or ricocheted. When bullets hit solid objects, they either fragment or carry the marks of the impact with them. Therefore, examination of this bullet is crucial. It's not just whether Teresa's DNA is on it; the actual physical characteristics of the recovered bullet might provide valuable information.
I tried to imagine a scenario where Teresa, in the garage, was killed with a .22 rifle bullet to the head, which then exited her head (highly unlikely) and resulted in the bullet remaining in the garage (in this case, under the compressor.) The problem I continued to run up against is that there is no patent or latent blood in the garage, so I cannot explain how she could have been killed in the garage. If she was not shot in that garage, the killer (or someone else) would have had to have come upon the spent bullet after the murder, kept it, and discarded it on the floor of the Avery garage. Not something Steven Avery was likely to do. Why take the time to burn her body, then drop a bullet with her DNA on it on the floor of your garage? Another thought I had was that she might have been shot somewhere outside the garage when the the garage door happened to be open. Then, against all odds, the bullet ended its flight in Avery's garage. I find those scenario far-fetched.
Could she have been killed by a larger caliber bullet that actually excited the skull? Certainly. But the bullet the prosecution claims bears Halbach's DNA is a .22, which poses a real problem for me.
What, you ask, if for some odd reason the .22 exited her skull? If the bullet which killed Teresa Halbach (if indeed a bullet ended her life), exited her skull, it would do so at a relatively high rate of speed. It would not have come out of her head and fallen onto the ground a few inches from her. It would've continued until it impacted something solid and then fell or ricocheted. When bullets hit solid objects, they either fragment or carry the marks of the impact with them. Therefore, examination of this bullet is crucial. It's not just whether Teresa's DNA is on it; the actual physical characteristics of the recovered bullet might provide valuable information.
I tried to imagine a scenario where Teresa, in the garage, was killed with a .22 rifle bullet to the head, which then exited her head (highly unlikely) and resulted in the bullet remaining in the garage (in this case, under the compressor.) The problem I continued to run up against is that there is no patent or latent blood in the garage, so I cannot explain how she could have been killed in the garage. If she was not shot in that garage, the killer (or someone else) would have had to have come upon the spent bullet after the murder, kept it, and discarded it on the floor of the Avery garage. Not something Steven Avery was likely to do. Why take the time to burn her body, then drop a bullet with her DNA on it on the floor of your garage? Another thought I had was that she might have been shot somewhere outside the garage when the the garage door happened to be open. Then, against all odds, the bullet ended its flight in Avery's garage. I find those scenario far-fetched.
THE IMMACULATE RECOVERY
Neither can I divorce the immaculate discovery of the bullet, from Fassbender's statement to the Sherry Culhane, the DNA Technical Unit Leader, “Try to put her in his house or garage." This is simply mind-boggling to me. In discussing cases with lab experts, I have made statements along the lines of, "I can't put this person at the crime scene," or "I hope this gives me evidence that the suspect was at the crime scene." But never, never once, have I ever asked, wanted or expected the lab expert to "help" me in my case. Never would I expect them to even think that's what I wanted.
"Try to.." is an instruction, an action; not a hope, an observation or discussion of a case. How do you "try to" put Teresa Halbach in the garage? Theoretically, a DNA technician can only prepare a sample and interpret the results. So how can she "try to" do anything with it? It indicates that there are ways of making something happen. So, in that statement, both Fassbender and Culhane implicitly indicated that there was a way to influence the results. If one improperly influenced the results, then the one thing that couldn't be allowed to exist would be extra DNA material -- because that would give the defense the opportunity to disprove the findings. Conveniently, all of the DNA sample was consumed. I also find it very strange that (as far as I know) the very first time Culhane ever contaminated a sample with her own DNA was during this very test. Usually, mistakes of all kinds are made when regular procedures are not followed.
The subsequent finding of the victim's DNA on a bullet; a bullet which, by my logic shouldn't even exist, four months after an extensive search of the crime scene didn't turn it up, combined with the improper conversation between Fassbender and Culhane, creates (at least for me) a significant appearance of wrongdoing. It's not as if I haven't seen this before.
I remember the horrible experience of Raffaele Sollecito, the Italian man accused with Amanda Knox of the murder of Meredith Kercher. The Italian authorities were desperate to "put him in the murder room." Yet there was no evidence of him there. So what happened? Six weeks after the extensive first search, the police went back and "found" the victim's bra clasp, and guess what? It was determined to have Raffaele's DNA on it. The defense, of course, wanted to be present at testing, but were denied. They then wanted to retest the DNA, but the prosecutors claimed that the DNA was completely consumed in testing. Before they were exonerated, Raffaele and Amanda each spent four years in prison for a crime they did not commit. Does this give anybody else a feeling of Deja vu?
UNIMPORTANT "BOMBSHELLS" FROM THE SEARCHES
Fassbender, on the stand, testified that deputies found shell casings that matched up to a rifle in the house. That might seem significant. However, unless that rifle was the same caliber as the bullet found in the garage, and testing proves that it was the rifle that fired the bullet, the statement is pretty much worthless. The mere existence of shell casings without a link to a body means nothing, and the fact there were shell casings "all around the property," leads me to believe that the Avery property is located in rural Wisconsin. The .22LR cartridge is what is known as a "varmint" round, used to shoot pests such as squirrels, gophers and small game.
Kratz went to great lengths to portray insignificant items as suspicious evidence. For instance, Halbach's phone number was written on a note pad on Avery's computer table. What does that evidence tell us? It tells us that Avery had business with Halbach. We already knew that. Several other people in the same town had business with Teresa that day. Likely they had her phone number written somewhere too. Importantly, though, it also tells us that Avery did not have Halbach's number memorized. This is important, because somebody who was stalking Teresa would likely have the number memorized.
The most critical takeaway from the searches, was that after four months of investigation, not a single person was able to find one shred of evidence that Teresa Halbach was ever in Steven Avery's house or his garage. The most significant thing about the searches is what they didn't find.
RULES OF CRIMINAL PROCEDURE 101
So where is the murder scene? When reporters asked Ken Kratz why he had not brought up the murder scene in trial, I was absolutely dumbstruck at his answer. He said that he was going to explain all that "...in closing arguments." Whiskey tango foxtrot? Closing arguments do not introduce new evidence, and are not evidence in and of themselves. A closing argument can only refer to evidence that has already been placed into the trial. What Kratz was admitting was that he had not a single shred of evidence to prove where the murder was carried out. But apparently that wasn't going to keep him from telling the jury where it was, without evidence of any kind. To put forward a theory of how the crime could have happened, without providing evidence for the conclusion(s) is appalling. If the judge allowed that, well... I have no words...
Where does this leave us? Kratz doesn't know where the murder occurred, he probably suspects that using Brendan Dassey as a prosecution witness would be disastrous, and continues to try to make a criminal case against a defendant without the use of reliable or convincing evidence--and has no explanation for why the evidence was not found. But I can tell you one thing the evidence proves to me; regardless of who killed Teresa Halbach (even if it turns out it was Steven Avery), she was not killed in Avery's garage or trailer.
(Pt. 3 of 3, Sunday: "Three burn sites??")
Neither can I divorce the immaculate discovery of the bullet, from Fassbender's statement to the Sherry Culhane, the DNA Technical Unit Leader, “Try to put her in his house or garage." This is simply mind-boggling to me. In discussing cases with lab experts, I have made statements along the lines of, "I can't put this person at the crime scene," or "I hope this gives me evidence that the suspect was at the crime scene." But never, never once, have I ever asked, wanted or expected the lab expert to "help" me in my case. Never would I expect them to even think that's what I wanted.
"Try to.." is an instruction, an action; not a hope, an observation or discussion of a case. How do you "try to" put Teresa Halbach in the garage? Theoretically, a DNA technician can only prepare a sample and interpret the results. So how can she "try to" do anything with it? It indicates that there are ways of making something happen. So, in that statement, both Fassbender and Culhane implicitly indicated that there was a way to influence the results. If one improperly influenced the results, then the one thing that couldn't be allowed to exist would be extra DNA material -- because that would give the defense the opportunity to disprove the findings. Conveniently, all of the DNA sample was consumed. I also find it very strange that (as far as I know) the very first time Culhane ever contaminated a sample with her own DNA was during this very test. Usually, mistakes of all kinds are made when regular procedures are not followed.
The subsequent finding of the victim's DNA on a bullet; a bullet which, by my logic shouldn't even exist, four months after an extensive search of the crime scene didn't turn it up, combined with the improper conversation between Fassbender and Culhane, creates (at least for me) a significant appearance of wrongdoing. It's not as if I haven't seen this before.
I remember the horrible experience of Raffaele Sollecito, the Italian man accused with Amanda Knox of the murder of Meredith Kercher. The Italian authorities were desperate to "put him in the murder room." Yet there was no evidence of him there. So what happened? Six weeks after the extensive first search, the police went back and "found" the victim's bra clasp, and guess what? It was determined to have Raffaele's DNA on it. The defense, of course, wanted to be present at testing, but were denied. They then wanted to retest the DNA, but the prosecutors claimed that the DNA was completely consumed in testing. Before they were exonerated, Raffaele and Amanda each spent four years in prison for a crime they did not commit. Does this give anybody else a feeling of Deja vu?
UNIMPORTANT "BOMBSHELLS" FROM THE SEARCHES
Fassbender, on the stand, testified that deputies found shell casings that matched up to a rifle in the house. That might seem significant. However, unless that rifle was the same caliber as the bullet found in the garage, and testing proves that it was the rifle that fired the bullet, the statement is pretty much worthless. The mere existence of shell casings without a link to a body means nothing, and the fact there were shell casings "all around the property," leads me to believe that the Avery property is located in rural Wisconsin. The .22LR cartridge is what is known as a "varmint" round, used to shoot pests such as squirrels, gophers and small game.
Kratz went to great lengths to portray insignificant items as suspicious evidence. For instance, Halbach's phone number was written on a note pad on Avery's computer table. What does that evidence tell us? It tells us that Avery had business with Halbach. We already knew that. Several other people in the same town had business with Teresa that day. Likely they had her phone number written somewhere too. Importantly, though, it also tells us that Avery did not have Halbach's number memorized. This is important, because somebody who was stalking Teresa would likely have the number memorized.
The most critical takeaway from the searches, was that after four months of investigation, not a single person was able to find one shred of evidence that Teresa Halbach was ever in Steven Avery's house or his garage. The most significant thing about the searches is what they didn't find.
RULES OF CRIMINAL PROCEDURE 101
So where is the murder scene? When reporters asked Ken Kratz why he had not brought up the murder scene in trial, I was absolutely dumbstruck at his answer. He said that he was going to explain all that "...in closing arguments." Whiskey tango foxtrot? Closing arguments do not introduce new evidence, and are not evidence in and of themselves. A closing argument can only refer to evidence that has already been placed into the trial. What Kratz was admitting was that he had not a single shred of evidence to prove where the murder was carried out. But apparently that wasn't going to keep him from telling the jury where it was, without evidence of any kind. To put forward a theory of how the crime could have happened, without providing evidence for the conclusion(s) is appalling. If the judge allowed that, well... I have no words...
Where does this leave us? Kratz doesn't know where the murder occurred, he probably suspects that using Brendan Dassey as a prosecution witness would be disastrous, and continues to try to make a criminal case against a defendant without the use of reliable or convincing evidence--and has no explanation for why the evidence was not found. But I can tell you one thing the evidence proves to me; regardless of who killed Teresa Halbach (even if it turns out it was Steven Avery), she was not killed in Avery's garage or trailer.
(Pt. 3 of 3, Sunday: "Three burn sites??")