EPISODE 7:
FRAMING DEFENSE
Episode 7 essentially brought three topics to the table;
The answers to each of these questions have significant implications, of course, and aspects which might not be obvious to everyone.
"WHY THE HURRY?"
Unusually, this episode of Making a Murderer cut to the chase pretty quickly. In the previous episodes, I got the distinct impression that the first third of each episode was being used simply to set a tone, generate emotion and reveal the various suspicions of different parties. This time, however, they began with information I believed was specific, and it had to do with who was really running the investigation of the Teresa Halbach murder.
As we all know, the Manitowoc County District Attorney's and Sheriff's offices, wisely recused themselves from the investigation of the disappearance of Teresa Halbach. They did so obviously because of a conflict of interest and a potential lack of impartiality. This decision was an excellent example of official integrity and ethics. Actually, I should say it would have been, had they actually done so. In reality, they said one thing, then did the opposite.
Looking at the entire situation from 30,000 feet, a couple of facts don't seem to fit, and really cause me to wonder about how much this case was pre-judged by Manitowoc County Sheriff's Office (MCSO).
Let's go back to the day Teresa Halbach was reported missing. She was a resident of Calumet County, and at the moment she was reported missing, there was little to indicate who was the last person known to have seen her alive. Within hours of her reported disappearance, however, and well before the vehicle or any other evidence had been found, Manitowoc County recused themselves from the entire investigation. Think about that for a moment. They had no way of knowing the circumstances of Teresa's disappearance, or the likelihood of Avery's involvement.
Obviously, by that time, they had learned that Steven Avery was the last person known to have seen her alive. Certainly, that puts him on the suspect list; a rather long and complicated suspect list. At that point, they had no idea whether Steven Avery was actually the murderer or not, so my expectation would have been for Manitowoc County to jointly work the investigation (based on the fact that Halbach was a Calumet County resident.) This would allow all investigation of Steven Avery -- which was warranted and important -- to be conducted by Calumet. Other suspects could be investigated by Manitowoc.
Turning the case completely over (at least theoretically) to Calumet County Sheriff's Office (CCSO) is circumstantial evidence that in fact, Steven Avery was the only suspect at that point. I believe that the (apparent) early and complete turn-over of the case to Calumet was a tacit and inadvertent indication of Manitowoc's pre-conceived conclusion that Steven Avery was the killer of Teresa Halbach.
- Was Calumet County Sheriff's Office really the primary investigating agency in the Halbach case?
- Who really had access to the Manitowoc Sheriff's Department evidence room?
- What do we make of the FBI test?
The answers to each of these questions have significant implications, of course, and aspects which might not be obvious to everyone.
"WHY THE HURRY?"
Unusually, this episode of Making a Murderer cut to the chase pretty quickly. In the previous episodes, I got the distinct impression that the first third of each episode was being used simply to set a tone, generate emotion and reveal the various suspicions of different parties. This time, however, they began with information I believed was specific, and it had to do with who was really running the investigation of the Teresa Halbach murder.
As we all know, the Manitowoc County District Attorney's and Sheriff's offices, wisely recused themselves from the investigation of the disappearance of Teresa Halbach. They did so obviously because of a conflict of interest and a potential lack of impartiality. This decision was an excellent example of official integrity and ethics. Actually, I should say it would have been, had they actually done so. In reality, they said one thing, then did the opposite.
Looking at the entire situation from 30,000 feet, a couple of facts don't seem to fit, and really cause me to wonder about how much this case was pre-judged by Manitowoc County Sheriff's Office (MCSO).
Let's go back to the day Teresa Halbach was reported missing. She was a resident of Calumet County, and at the moment she was reported missing, there was little to indicate who was the last person known to have seen her alive. Within hours of her reported disappearance, however, and well before the vehicle or any other evidence had been found, Manitowoc County recused themselves from the entire investigation. Think about that for a moment. They had no way of knowing the circumstances of Teresa's disappearance, or the likelihood of Avery's involvement.
Obviously, by that time, they had learned that Steven Avery was the last person known to have seen her alive. Certainly, that puts him on the suspect list; a rather long and complicated suspect list. At that point, they had no idea whether Steven Avery was actually the murderer or not, so my expectation would have been for Manitowoc County to jointly work the investigation (based on the fact that Halbach was a Calumet County resident.) This would allow all investigation of Steven Avery -- which was warranted and important -- to be conducted by Calumet. Other suspects could be investigated by Manitowoc.
Turning the case completely over (at least theoretically) to Calumet County Sheriff's Office (CCSO) is circumstantial evidence that in fact, Steven Avery was the only suspect at that point. I believe that the (apparent) early and complete turn-over of the case to Calumet was a tacit and inadvertent indication of Manitowoc's pre-conceived conclusion that Steven Avery was the killer of Teresa Halbach.
TIMELY REPORTING
It may seem obvious to those not in law enforcement, but when an interview takes place, especially one which is not been recorded in any way, it is mandated and absolutely necessary that the results of the interview be memorialized a timely manner. For instance, in the FBI, interview transcripts were recorded on form FD-302. At the top of the page of the '302 forms was a blank for the clerk/stenographer to log the date that the interview was transcribed. In the 'footer' of the form, the date the interview was dictated (or 'written') is specified, and in the first paragraph, FBI agents were required to note the date of the interview or investigative activity. We had five days (absent extenuating circumstances) to commit that interview or investigative activity to paper. If for any reason you went past five days, there had to be a good reason. Past 30 days, and you were potentially in some difficulty.
In the attached FD-302, you can see that the investigation was conducted on July 7th and 9th, the document was dictated on the 15th (just missed the 5-day deadline) and the document was transcribed by clerical personnel on July 22nd. We were not always perfect, but we were always conscious of those deadlines.
On November 3, three days after the disappearance of Teresa, Sgt. Colburn arrived at the Avery property to inquire about Avery's knowledge of the disappearance of Theresa Halbach According to Colburn's report, Steven Avery described Halbach taking pictures of the red van, but when asked to provide further information, Avery allegedly told Colburn that he "didn't talk to her." This, of course, contradicts later statements by Avery and constitutes important evidence.
The more important the evidence, the quicker you want it written up. In this case, however, no documentation of the interview in any way shape or form was made by Sgt. Colburn until June 6, more than seven months later. This, coincidentally, was during the time the prosecution was preparing for trial. Probably just coincidental. Besides the obvious question as to why the statement suddenly came out prior to trial, one has the right to question whether Colburn's recollection of a short conversation seven months prior remains accurate and valid.
If Colburn's statement is true, why did Kratz never mention this inconsistency in any of his press conferences or interviews with reporters? It's likely because Colburn never mentioned any inconsistency in Avery's testimony prior to June. At best, he had forgotten it. At worst, he had created a statement to help the prosecution.
It may seem obvious to those not in law enforcement, but when an interview takes place, especially one which is not been recorded in any way, it is mandated and absolutely necessary that the results of the interview be memorialized a timely manner. For instance, in the FBI, interview transcripts were recorded on form FD-302. At the top of the page of the '302 forms was a blank for the clerk/stenographer to log the date that the interview was transcribed. In the 'footer' of the form, the date the interview was dictated (or 'written') is specified, and in the first paragraph, FBI agents were required to note the date of the interview or investigative activity. We had five days (absent extenuating circumstances) to commit that interview or investigative activity to paper. If for any reason you went past five days, there had to be a good reason. Past 30 days, and you were potentially in some difficulty.
In the attached FD-302, you can see that the investigation was conducted on July 7th and 9th, the document was dictated on the 15th (just missed the 5-day deadline) and the document was transcribed by clerical personnel on July 22nd. We were not always perfect, but we were always conscious of those deadlines.
On November 3, three days after the disappearance of Teresa, Sgt. Colburn arrived at the Avery property to inquire about Avery's knowledge of the disappearance of Theresa Halbach According to Colburn's report, Steven Avery described Halbach taking pictures of the red van, but when asked to provide further information, Avery allegedly told Colburn that he "didn't talk to her." This, of course, contradicts later statements by Avery and constitutes important evidence.
The more important the evidence, the quicker you want it written up. In this case, however, no documentation of the interview in any way shape or form was made by Sgt. Colburn until June 6, more than seven months later. This, coincidentally, was during the time the prosecution was preparing for trial. Probably just coincidental. Besides the obvious question as to why the statement suddenly came out prior to trial, one has the right to question whether Colburn's recollection of a short conversation seven months prior remains accurate and valid.
If Colburn's statement is true, why did Kratz never mention this inconsistency in any of his press conferences or interviews with reporters? It's likely because Colburn never mentioned any inconsistency in Avery's testimony prior to June. At best, he had forgotten it. At worst, he had created a statement to help the prosecution.
THE TAIL WAGGING THE DOG
However, as we start to find out in more detail in this episode, Manitowoc's claim of ceding the investigation to Calumet was fiction; an operational contrivance that was completely untrue, yet important for public opinion. The investigation of the Teresa Halbach disappearance and murder was, for all intents and purposes, an MCSO activity.
Sheriff Pagel of Calumet County stated very clearly in the early press conferences that the only involvement at all by MCSO would be to "provide resources." Resources, in law enforcement parlance means manpower and equipment. So...what he said was, in reality, 'Manitowoc County Sheriff's personnel will have no involvement in the case - except that they will be doing the searches and investigations.' No involvement means no involvement. There is no "small involvement" in an investigation any more than a woman can be 'a little pregnant.' Imagine your surgeon coming into the operating room with one clean, gloved hand, and one bloody hand. If he said, "Don't worry, I'll only be using this hand when the clean hand needs help," that wouldn't be much of a comfort, would it?
I understand that Manitowoc County is nearly twice the size of Calumet County, and would likely have more law enforcement resources. However, any pretense that Calumet County was in control of the investigation was, at best, a fantasy. In reality, this was a case of the tail wagging the dog.
Let me digress for a moment for the purpose of an illustration. When my FBI squad was operating in Pakistan, we obviously didn't have law enforcement jurisdiction in a foreign country. However, if our squad of six or seven agents needed to accomplish a search, process a crime scene or interview a suspect, we could do so as long as we brought along at least one Pakistani police or military officer. That officer was "in charge" of the investigation, and therefore, we were simply assisting with a Pakistani investigation. Sure.
The officers had no idea what we were doing, rarely spoke much English, and didn't have the technical skills to participate in the investigations we were conducting. They usually stood outside and smoked cigarettes. But when we identified terrorists and Pakistani authorities arrested them, guess who was "in charge" of the investigation? Our allies, the Pakistani's of course. That's fine; terrorist off the streets and we don't have to explain how we did it.
Calumet County, I suspect, was playing the part of those clueless Pakistani "chaperons." This became evident early in the episode when Calumet deputy Sgt. William Tyson testified that he was told by investigator Wiegert, that no Manitowoc County Sheriff's Office deputies were allowed to be alone on the Avery property. Maybe this was an actual attempt at propriety by Wiegert. I don't know. Regardless of how impressive the words, however, the execution was a failure.
We learned from the testimony of Sgt. Tyson, that during the searches of the Avery property and Steven's room in particular, three Manitowoc County deputies were accompanied by a single Calumet deputy. (A search, I might add, in which no key was on the floor in the place Lenk later found it.) What does that tell you about who was in charge? There is no doubt in my mind, based on the unvetted information I have obtained from the documentary, that the searches of the Avery property were de facto searches by MCSO.
However, as we start to find out in more detail in this episode, Manitowoc's claim of ceding the investigation to Calumet was fiction; an operational contrivance that was completely untrue, yet important for public opinion. The investigation of the Teresa Halbach disappearance and murder was, for all intents and purposes, an MCSO activity.
Sheriff Pagel of Calumet County stated very clearly in the early press conferences that the only involvement at all by MCSO would be to "provide resources." Resources, in law enforcement parlance means manpower and equipment. So...what he said was, in reality, 'Manitowoc County Sheriff's personnel will have no involvement in the case - except that they will be doing the searches and investigations.' No involvement means no involvement. There is no "small involvement" in an investigation any more than a woman can be 'a little pregnant.' Imagine your surgeon coming into the operating room with one clean, gloved hand, and one bloody hand. If he said, "Don't worry, I'll only be using this hand when the clean hand needs help," that wouldn't be much of a comfort, would it?
I understand that Manitowoc County is nearly twice the size of Calumet County, and would likely have more law enforcement resources. However, any pretense that Calumet County was in control of the investigation was, at best, a fantasy. In reality, this was a case of the tail wagging the dog.
Let me digress for a moment for the purpose of an illustration. When my FBI squad was operating in Pakistan, we obviously didn't have law enforcement jurisdiction in a foreign country. However, if our squad of six or seven agents needed to accomplish a search, process a crime scene or interview a suspect, we could do so as long as we brought along at least one Pakistani police or military officer. That officer was "in charge" of the investigation, and therefore, we were simply assisting with a Pakistani investigation. Sure.
The officers had no idea what we were doing, rarely spoke much English, and didn't have the technical skills to participate in the investigations we were conducting. They usually stood outside and smoked cigarettes. But when we identified terrorists and Pakistani authorities arrested them, guess who was "in charge" of the investigation? Our allies, the Pakistani's of course. That's fine; terrorist off the streets and we don't have to explain how we did it.
Calumet County, I suspect, was playing the part of those clueless Pakistani "chaperons." This became evident early in the episode when Calumet deputy Sgt. William Tyson testified that he was told by investigator Wiegert, that no Manitowoc County Sheriff's Office deputies were allowed to be alone on the Avery property. Maybe this was an actual attempt at propriety by Wiegert. I don't know. Regardless of how impressive the words, however, the execution was a failure.
We learned from the testimony of Sgt. Tyson, that during the searches of the Avery property and Steven's room in particular, three Manitowoc County deputies were accompanied by a single Calumet deputy. (A search, I might add, in which no key was on the floor in the place Lenk later found it.) What does that tell you about who was in charge? There is no doubt in my mind, based on the unvetted information I have obtained from the documentary, that the searches of the Avery property were de facto searches by MCSO.
KEY EVIDENCE
In the search of the bedroom which revealed the RAV4 key, the searchers included Lt. Lenk (MCSO), Sgt. Colburn (MCSO), and investigator Dave Remiker, (MCSO). These three older, higher-ranking, experienced MCSO investigators were 'chaperoned' by a relative young deputy, Daniel Kucharsky. While the three MCSO investigators were conducting the search, Kucharsky was sitting on (and therefore contaminating) a piece of crucial evidence-the bed on which the murder allegedly took place. Kucharsky wasn't searching, he was documenting the evidence discovered by the Lenk, Colburn and Remiker. How in the world can this be considered a recusal by MCSO? Kucharsky wasn't even a detective, he was a patrolman.
In contrast to Tyson, Kucharsky was never told that he was there to babysit the other investigators. When pressed, Kucharsky admitted without reservation that during the "search," he had been taking photos and "doing other things," and that it would be entirely possible that the key could've been planted without him seeing it.
Before that admission, however, Kucharsky was asked if Lenk had an opportunity to plant the Toyota key. Kucharski declared with a surprising lack of awareness of the fallacy of his statement, that the other officers had no opportunity to plant the key because "they would have already had to have the key." This was one of those times when my jaw inadvertently fell open. Kucharski, bless his heart, was a young officer testifying only on his belief that an illegal act of planting evidence by another police officer was completely impossible. Therefore, it would be illegal for them to have the key and plant it, therefore they could not have done it. His answer assumed that the officers could not have been corrupt.
In the search of the bedroom which revealed the RAV4 key, the searchers included Lt. Lenk (MCSO), Sgt. Colburn (MCSO), and investigator Dave Remiker, (MCSO). These three older, higher-ranking, experienced MCSO investigators were 'chaperoned' by a relative young deputy, Daniel Kucharsky. While the three MCSO investigators were conducting the search, Kucharsky was sitting on (and therefore contaminating) a piece of crucial evidence-the bed on which the murder allegedly took place. Kucharsky wasn't searching, he was documenting the evidence discovered by the Lenk, Colburn and Remiker. How in the world can this be considered a recusal by MCSO? Kucharsky wasn't even a detective, he was a patrolman.
In contrast to Tyson, Kucharsky was never told that he was there to babysit the other investigators. When pressed, Kucharsky admitted without reservation that during the "search," he had been taking photos and "doing other things," and that it would be entirely possible that the key could've been planted without him seeing it.
Before that admission, however, Kucharsky was asked if Lenk had an opportunity to plant the Toyota key. Kucharski declared with a surprising lack of awareness of the fallacy of his statement, that the other officers had no opportunity to plant the key because "they would have already had to have the key." This was one of those times when my jaw inadvertently fell open. Kucharski, bless his heart, was a young officer testifying only on his belief that an illegal act of planting evidence by another police officer was completely impossible. Therefore, it would be illegal for them to have the key and plant it, therefore they could not have done it. His answer assumed that the officers could not have been corrupt.
Would have been hard to miss that key in a search of that little bookcase. The prosecution explains the miraculous appearance of the key by claiming that it fell from a bookcase that had been searched on November 5 and November 8. Lt. Lenk himself stated in his testimony that on those days, he witnessed the bookcase being emptied of magazines and paperwork so that it could be more carefully searched. This was not a large bookcase. It had just a couple of shelves and was easily searched. It is inconceivable to me that the bookcase could have been searched and the Toyota key missed. This borders on impossible in my opinion. Yet, the prosecution claims that the key was somehow in or on the bookcase, possibly lodged in a secret or invisible area. When the bookcase was moved, the keys were dislodged and fell on the floor. Let's think about that for a second:
Finally, the bookcase had been searched and more than once, and on at least one occasion moved around with some gusto. It didn't fall then?
Another completely senseless statement was made on the stand. It was testified that when they saw the key, they immediately knew that it was "...an important piece of evidence." Really? How?
I recall from early photographs of that exact same bookshelf, that a large wad of keys were visible on the shelf. Why, all of a sudden, was a single key nobody had ever seen before instantly determined to be a crucial piece of evidence--even if they recognized it as a Toyota key? In an auto yard where there are literally thousands of vehicles, most of which arrived at the recycle yard with keys in them, would a single unidentified key be instantly recognized as crucial evidence? No. In my humble opinion, they knew suspiciously quickly the significance of that key.
- For a key to have fallen from any point on the bookcase, (especially considering that nothing else fell at that time), it would have had to be adjacent to an edge of the bookcase; a shelf or on the top, etc.
- The key and fob would have been in plain sight. Why? Because if it was blocked from view by an object, that object would have had to have fallen first.
- The key couldn't have fallen through an object concealing it.
- Therefore, throughout the entire search that day, with three trained detectives and a new, enthusiastic deputy, with the key and fob in plain sight, they didn't see it until it was on the ground. I call shenanigans.
Finally, the bookcase had been searched and more than once, and on at least one occasion moved around with some gusto. It didn't fall then?
Another completely senseless statement was made on the stand. It was testified that when they saw the key, they immediately knew that it was "...an important piece of evidence." Really? How?
I recall from early photographs of that exact same bookshelf, that a large wad of keys were visible on the shelf. Why, all of a sudden, was a single key nobody had ever seen before instantly determined to be a crucial piece of evidence--even if they recognized it as a Toyota key? In an auto yard where there are literally thousands of vehicles, most of which arrived at the recycle yard with keys in them, would a single unidentified key be instantly recognized as crucial evidence? No. In my humble opinion, they knew suspiciously quickly the significance of that key.
LATE TO THE GARAGE SALE
And frankly, there was absolutely no reason to believe that any evidence of any significance would be found in that room.
You ever show up late to a garage sale? Anything good left when you got there? Usually just a few broken toys and an exercise machine. The first people at the garage sale got the good stuff. The second group likely found any bargains that the first missed, and the third mopped up. When you got there, the owners were cleaning up and about to toss the rest of the non-sold junk. Searches are like that. The first people in the search area find the best stuff. If there's a second search, anything missed by the first is discovered. Frankly, I've never been on a search that went through three 'passes' over the same territory. The expectations of finding anything in that room had to be near zero. But amazingly, we have Lenk, Colburn and Remiker there. Why? It's going to be a dry hole and these experienced investigators had to have known that. But there they were. That doesn't make sense to me. Neither does their immediate conclusion that they had something important that nobody else had found before....
SO?
And frankly, there was absolutely no reason to believe that any evidence of any significance would be found in that room.
You ever show up late to a garage sale? Anything good left when you got there? Usually just a few broken toys and an exercise machine. The first people at the garage sale got the good stuff. The second group likely found any bargains that the first missed, and the third mopped up. When you got there, the owners were cleaning up and about to toss the rest of the non-sold junk. Searches are like that. The first people in the search area find the best stuff. If there's a second search, anything missed by the first is discovered. Frankly, I've never been on a search that went through three 'passes' over the same territory. The expectations of finding anything in that room had to be near zero. But amazingly, we have Lenk, Colburn and Remiker there. Why? It's going to be a dry hole and these experienced investigators had to have known that. But there they were. That doesn't make sense to me. Neither does their immediate conclusion that they had something important that nobody else had found before....
SO?
- Based on what I know at this point, I cannot help but come to the conclusion that the Toyota key was planted in that room by Lenk, Colburn or Remiker, and my belief is that Lenk is the most likely candidate.
- That evidence was planted does not automatically make Steven Avery guilty of murder, nor does clear him of murder. As I have said many times, the police in different jurisdictions have "helped" the conviction of guilty men as well as innocent men. Just because the police are willing to plant evidence doesn't make the suspect innocent. It might make convicting him (legally) problematic, however.
- The claim that Manitowoc County Sheriff's Office was an uninvolved, uninterested party in this investigation is a sham.