Why was the EDTA test rushed?

A key piece of testimony revolved around the blood found in Teresa Halbach's car.  The defense proposed the blood came from a vial of Steven Avery's blood held by the Manitowoc County Clerk's Office, related to his 1985 wrongful conviction.  The evidence tape on the box had been cut during a meeting in 2002, with Avery's lawyers from that case present, while determining what evidence to re-test for his exoneration.  The box was not properly resealed, and therefore a Manitowoc County officer could have potentially snuck into the Clerk's Office and removed some blood to plant in Teresa's car.

When a blood sample is taken, it can be preserved with a substance known as ethylenediaminetetraacetic acid, or EDTA.  The tube Avery's blood was stored in was a purple-capped BD vacutainer, indicating it had been preserved with EDTA.  If the blood in Teresa's car contained EDTA, it would almost conclusively prove that the blood had been planted, as EDTA is not naturally found in blood from a fresh wound.  Unfortunately for this case, framing defenses involving planted blood are not common in the legal system, and no widely-used test for EDTA in blood was available.  This was a pivotal issue in the case- if EDTA was found, it would lend almost unbeatable credence to the defense's claim that the blood had been planted.  If it was not found, it would almost definitely prove the blood in Teresa's car came from an actively bleeding cut on Avery.

The defense had knowledge of the existence of the blood vial no later than July 20, 2006.  It is most likely they had previous knowledge, as Avery himself knew of the vial and was claiming the blood had been planted almost immediately after his arrest in November 2005.  However, the defense made no attempt to retrieve the blood vial, or attempt to test it for EDTA- which could potentially benefit their case more than any other evidence or testimony.  In fact, they made no mention of the vial in court records until December 6, 2006.  They arranged to visit the Manitowoc County Clerk's Office the following week with prosecution, on December 14, 2006.  The final deadline for general discovery was December 15, and the trial was scheduled to begin on February 12, 2007, a scant 2 months away.  Because of their decision to withhold knowledge of the vial until the last possible minute, it seemed there would be no way to develop an EDTA test in time to test the blood before the trial began.  

The prosecution objected to the last-minute introduction of the blood vial.  They claimed the defense was trying to use the blood vial to inject suspicion into the minds of jury members, as the box was improperly sealed, without giving prosecution time to properly rebut that claim with an EDTA test.  Prosecution requested a delay of the trial, in order to allow time to complete testing.  They identified two labs, the FBI and National Medical Services, with developed procedures to test for EDTA.  The FBI would require 3-4 months, and the NMS Lab would be able to complete the test in time for trial.  However, NMS Lab's reputation for EDTA testing wasn't reliable, so the prosecution stated a preference for the FBI.  The Motion also pointed out that not testing the vial would very likely lead to an appeal based on ineffective counsel were Avery convicted, stating, "the defense will be second-guessed for not having this supposedly exculpatory evidence, evidence that supports a frame-up, tested to provide support for the theory."  It would be best to test the vial before the original trial, to avoid the obvious appeal if no EDTA was found, or in the case of EDTA being present, "a miscarriage of justice will be avoided by having that blood subjected to analysis prior to the trial."

In that same motion, prosecution also requested time to research how much blood was originally drawn, and how much was used in the previous DNA testing, to determine how much blood should be left in the vial and potentially discover if any were missing.

The defense concurred that Avery "well may be innocent if someone planted his blood" and proof it was planted would be "central to this case."  They also agreed that Avery had claimed the blood was planted "from the beginning," implying they did have knowledge of the blood vial earlier than July 20, 2006.  However, the defense argued against delaying the trial for any sort of testing to be done on the blood vial, and the court denied an extension of time for that purpose.  When prosecution requested to have the vial released in an attempt to have EDTA testing completed before the trial, the defense once again filed a motion attempting to block the vial's release.

While the defense agreed finding EDTA would all but prove their "framing" allegations, and admitted knowledge of the blood vial much earlier than they submitted it into evidence, they made no effort to test the vial themselves, and made every attempt to block prosecution from testing it.  In fact, they wait until February 26, 2007, when the trial was already underway, to finally request an independent test of the blood vial and swabs from the Rav 4.  They requested the same delay of trial they had previously denied the prosecution, stating they had long ago spent the majority of their funds on other witnesses and interviews, and no longer had time to find a lab to verify the FBI's results while also attending to the trial.  The Court denied their request, stating:

The Court also concludes that if the defendant had felt the testing of the blood was important, the defendant had adequate opportunity in which to arrange for such testing. The defendant could have sought release of the blood vial much earlier and requested permission to test it himself under Section 971.23 (5).

In the alternative, if the defendant did not want to risk spending resources on a test which could possibly produce inconclusive or unfavorable results, the defendant could have disclosed the existence of the blood evidence earlier, asked the Court to set a deadline for the State to conduct any testing that it wished to conduct and still allow the defense adequate time to make its own decision as to whether or not it wanted to independently test the blood vial, all of which could accomplish — been accomplished well before the start of trial in this case.

The Court believes the defense decision not to pursue identification of the blood vial until very close to the discovery deadline was a decision that the defense was entitled to make.


Finally, by waiting until shortly before the time it was permitted to do so, the defense may have left the State with less time to prepare to meet the evidence and, specifically, with not enough time in which to conduct the State’s own tests. It certainly appeared, based on the original State request to adjourn the trial, that that may well have been the case here.

Based on the actions taken by the defense, it would certainly appear that while they wanted to use the blood vial with cut evidence tape to suggest planting in the minds of the jury, they failed to make any attempt to back up their theory with evidence by testing the blood, and in fact attempted to block the prosecution from testing the blood to offer a rebuttal.