Because of the overwhelming evidence against him, Avery’s defense had to be that all of the evidence was planted. That defense including alleging:
Steven Avery's blood in the Rav 4
The defense claimed a vial of Avery's blood, collected related to his previous false conviction, had been used to plant his blood in Teresa's car. They went to inspect the vial of his blood, and found the evidence tape on the box cut through. Upon opening the box, they noticed a small hole in the cap of the vial, and excitedly claimed a needle had been inserted to draw blood out to plant. They spoke to an employee at Labtech, who confirmed that they did not "do that" to test blood samples.
While it is true that the testing lab does not insert a needle through the cap to withdraw a sample, the hole in the blood vial is completely normal. In this YouTube video, you can watch the process of blood being collected and inserted into a vial. As you can see, a needle is inserted through the rubber cap of the vial, then the blood is transferred into the vial. This hole was not the "smoking gun" the defense had hoped when they saw it; in fact, all vials have this hole. A nurse was set to testify she had placed the hole in the vial, but Avery’s defense dropped their argument and prosecution decided not to call her. In addition, the evidence tape was cut in a meeting with Avery's own lawyers related to his wrongful conviction. Some have claimed the blood around the stopper is indicative of the stopper being removed, but again, there is a known reason. The blood vial was sent to Lab Corp for testing, and they removed the stopper to withdraw some blood. Avery's blood was found in six places in the car (front driver’s side portion, floor by the console, right of the ignition area, front passenger seat, CD case on front passenger seat, and a metal panel between the backseat and cargo area). Nick Stahlke, a blood pattern expert from the State Crime Lab, testified the blood pattern was consistent with transfer stains and "passive drops", which are indicative of active bleeding. Similar stains and drops were found in Avery's own Grand Am.
A test existed to determine if the blood in the car contained EDTA, an anti-coagulant used to preserve blood samples. If the blood samples taken from the car contained EDTA, which is present in preserved blood but not in blood from fresh wounds, it would lend great credence to the defense's claims of planting. For more on the EDTA test, see
Finally, the blood vial was held by the Clerk of Manitowoc County Courts, not the Manitowoc Sheriff's Department. The clerk testified she'd never seen Colborn in 2005, and only saw Lenk once in the summer of 2005. While Lenk had keys to the Clerk of Courts building, he did not have the access code to the room where the blood vial was stored. There's also no indication he knew the blood vial existed. He had not worked with the county during the 1985 case. While he had signed an evidence transfer form relating to the case, it did not list the blood vial on it, and he had not personally gone to the Clerk of Courts office to collect any evidence for transfer.
All evidence points to the blood in the Rav 4 not coming from the vial of Avery's blood in police custody.
Avery’s new lawyer, Kathleen Zellner, has claimed the blood was actually planted from fresh blood Avery left in his own sink. In her original Motion for Post-Conviction Relief, Zellner clarified Manitowoc County Sheriff’s Department officers could not have planted the blood, and instead blamed Ryan Hillegas, whose “scientific background” as a nursing student would’ve given him the required knowledge. Ryan was allegedly in Teresa’s Rav-4 coming from Kuss Rd to plant the blood, and Avery even submitted a sworn affidavit claiming the tail lights he saw looked like a Rav-4 coming from Kuss Rd. However, Ryan had the strong alibi of being at Teresa’s home with her friends and family, helping to search for her, on the night of November 3 when Zellner accused him of planting the blood.
Once this glaring error was pointed out, Zellner shifted to accusing Bobby, Avery’s nephew, of planting the blood. Avery even submitted a new affidavit saying he was now certain the tail lights were coming from Barb’s trailer, the opposite direction of Kuss Rd, which he had previously stated. A whole host of new memories come out in this affidavit, that were never mentioned before. Avery remembers he actually stopped by Barb’s trailer to show Bobby his bloody finger, he told Bobby cops had been by and Bobby suddenly got nervous, Avery had actually changed the van battery with Bobby so Bobby knew Teresa was coming that day (because of course having a charged battery is important when someone is snapping a few pictures of your vehicle), and that Scott Tadych had stopped by to visit Bobby on October 31. It should be stressed that Avery was interviewed three times by law enforcement in 2005, had submitted two affidavits to Zellner previously, and had given numerous media interviews, and none of these new “memories” had been mentioned before. In fact, he is directly contradicting his earlier affidavits. He is also contradicting Blaine’s 2005 interview, claiming Avery did not stop by at all prior to going to Menard’s.
Other than Avery’s new “memories”, there is absolutely no evidence that Bobby planted blood in Teresa’s car. In fact, Zellner previously claimed this would require a scientific background when she was accusing Ryan of planting the blood, which Bobby did not have. Bobby would have no reason to carry a pipette, which Zellner claims was used to move the blood to the sink to the Rav-4. Zellner has also switched from saying the Rav-4 was hidden at Kuss Rd to saying it was hidden at a turn-around a ways away from the salvage yard. As Avery claims to have not seen any light or activity when he returned from the end of the driveway to check out the taillights (a trip of possibly one minute), there is no explanation as to how Bobby managed to drive past Avery out to the main road and turn-around before the blood dried. Even if Bobby had used a back road through the quarry, tail lights or noise from his vehicle would’ve been noticeable. It’s unlikely anyone even could park, enter the trailer, pipette up some blood, exit, and drive their vehicle away before Avery got back from the end of the driveway. Because Avery had never mentioned these “memories” before, they contradict his earlier affidavits, they contradict Blaine’s 2005 interview, and they contradict common sense, this scenario seems incredibly unlikely.
Teresa's Rav 4 on the Avery lot
There are a number of pieces of evidence that come up to support the claim that the car was planted on Avery Salvage Yard. In Avery’s trial, his lawyers focus on a phone call Sgt. Andrew Colborn made to dispatch on Nov 3 or 4. In the call, Colborn asks the dispatch operator, Lynn, to run Teresa’s license plate, asking “See if it comes back to that missing [muffled].” Lynn confirms “It shows that she’s a missing person, and it lists to Teresa Halbach- that’s what you’re looking for Andy?” He asks “99 Toyota?” Lynn replies “Yep”, they exchange pleasantries and the call ends. This call is supposed to prove Colborn found the car on the 3rd or 4th, called dispatch to check it was Teresa’s, and then moved the car to the Avery Salvage Yard.
While Colborn’s explanation for the call is edited out of Making a Murderer, Colborn explains why he would’ve made it on stand at trial. He explains that he received the information on the missing person from Inv. Weigert while he was driving around, and later called dispatch to make sure he’d written everything down correctly and had it all straight. He agrees when Strang asks if it sounds exactly like hundreds of other calls he’d made to dispatch confirming information.
The fact that he asks “99 Toyota?” on the call further supports his explanation. Most of us, when looking at a car, cannot immediately identify the model year. Someone looking at the car would be more likely to ask “Toyota Rav-4” or “Green Toyota”, instead of giving the model year. A model year and manufacturer is the type of information that would be given by police officers working off a DMV registration. He also asks the dispatcher to “see if it comes back to that missing [muffled]”, so he is clearly not trying to hide whose car it is. If he had just found a car he intended to plant to frame an innocent man, it’s unlikely he would make a recorded call to dispatch about it. Hopefully he would already have the information on the car he was looking for, but even if he didn’t he could call Weigert directly, or look at a missing person’s poster, or do a number of other things to determine who the car belonged to.
While the attempt to make the dispatch call sound suspicious in trial fell flat, Kathleen Zellner has presented new evidence in her motions. One piece of evidence she has submitted is Kevin Rahmlow’s affidavit, who claims he saw Teresa’s Rav-4 on November 4 “by the East Twin River dam in Mischicot at the turnaround the bridge [sic].” He claims to have then driven to a Cennex station, where he saw both a missing poster for Teresa and a Manitowoc County Sheriff’s officer. He reported having seen the car to the officer. When he was watching Making a Murderer more than a decade later, he recognized Colborn, and believed he was the officer in the Cennex. However, it’s possible Rahmlow just recognized Colborn from when Colborn arrested him in 2006 for a DUI. Colborn was actually off work on November 4 and was nowhere near the Avery property. In fact, there is a dispatch call from an officer named Ryan who references “missing posters up at a Cennex”, and may have been the person Rahmlow talked to. It’s also possible Rahmlow made the encounter up, holding a grudge against Colborn for the DUI arrest. Another item of note is that Rahmlow was not the only person to see a car that looked like Teresa’s near the turnaround. A man named Ervin also did, and reported it. This lead was checked out, and it was not Teresa’s car. With those new pieces of information, we now have to believe there were both two officers in Cennex on November 4 looking at the missing posters- one not in uniform but still identifiable as an officer to the discerning eye of Rahmlow- and two cars at the turnaround that looked like Teresa’s- one actually being hers, and another a look-a-like. This seems like a huge coincidence, and Rahmlow’s history of being arrested by Colborn diminishes his credibility.
Teresa Halbach's key was found in Steven Avery's bedroom on November 8th. It was attached to the lanyard fob that Teresa's sister, Katie Halbach, testified she had given to Teresa after attending an event where it was given away as a promotional item. The key was swabbed for DNA, and returned a DNA profile that matched Steven Avery. None of Teresa's DNA was found. It was not separately tested for blood, so it is unknown whether this DNA was from blood or another source (such as skin cells).
This key was found after Avery's trailer had been entered multiple times. The first entry was a 10-minute sweep of the entire trailer, performed on November 5th after Teresa's car was found. This was just a cursory search to find any signs of Teresa alive. At 7:30pm on November 5th, officers again entered the trailer and searched for 2.5 hours, seizing around 50 pieces of evidence. They ended the search around 10:30pm, due to the late hour and bad weather. They didn’t want to destroy evidence by carrying it outside in a storm. On November 6th, officers again entered the trailer for about 20 minutes, with a list of specific items they’d noted the night before to collect. The list included weapons, a vacuum cleaner, and bedding from the spare bedroom. This entry did not constitute a search, merely a collection of items previously noted. Also on November 6th, members of the State Crime Lab used special lighting to search the trailer for DNA evidence, and collected swabs from a few spots of blood found. (These were later matched to Steven Avery.) On the morning of November 8th, officers again entered the trailer for seven minutes. Their purpose was only to collect the serial number from Avery's computer, and they did not enter the bedroom. Also on November 8th, officers entered and spent three hours and 43 minutes doing a thorough search of the trailer. This was the search during which the key was located, and was a continuation of the search ended at 10:30pm on November 5.
Officers testified they were collecting pornographic materials from the bookcase in the bedroom, and bumped and shook it while searching it. After searching the bookcase, they noticed a key on the floor next to it that had not been there before. They assumed it had been on or in the bookcase, and had fallen to the floor when the bookcase was moved. The back panel of the bookcase was separated from the body, so the key could've fallen through the back as it was turned and searched. The key was noticed by Lt. James Lenk, who had been deposed in Avery's wrongful imprisonment suit against Manitowoc County. He was under the supervision of Deputy Kucharski from the Calumet County Sheriff's Department, whose job was to oversee the search and keep watch over the Manitowoc County officers. Kucharski testifies that while he kept watch over the officers and did not believe the key was planted, it could have been possible when he was distracted.
The key is a challenging piece of evidence for either side. The prosecution must explain why the key was not found before November 8th. While most prior entries were short and only for collection of specific types of evidence, they did search for two and a half hours on November 5th, and did not find the key. Kucharski himself testified that it would've been possible for Lenk or Colborn to have planted it.
The defense has a number of questions to answer, as well. The key was found on a lanyard matching the one Teresa's sister testified Teresa used, the other piece of which was found in Teresa’s Rav-4. Unless the police had asked specific questions about the lanyard previously, they would have no way of knowing it would be found on such a lanyard. The key also successfully started Teresa's car. The State Crime Lab's DNA expert testified it would not be unusual for Teresa's DNA to have been degraded or rubbed off after having been handled by another person. The key also may have been wiped clean (if Avery had used it and had a cut on his right hand, it is reasonable to think he would've wanted to wash the blood off before putting it in his dresser), and then carried to the bedroom by Avery, also resulting in only his DNA being present. As the key was Teresa's, even if it were a spare, the question of how the police got it before planting it must be answered. It presumably would've been with Teresa's body or belongings, which were all found burned on Avery's property. This would imply the police were the ones to burn Teresa's body or belongings after finding them and retained the key, which is an extremely serious accusation and requires a high amount of planning, and skilled execution without being noticed in a high-profile case with media swarming and five other agencies on the scene. Another alternative is that the real killer simply left the key somewhere else, and the Manitowoc officers were lucky enough to find it quickly, before anyone else searching the property, and plant it in Avery's room. There is also the question of how Avery's DNA would've gotten on the key, although it would be possible to transfer his DNA by rubbing it on another item containing his DNA.
The bones in the burn pit
In Avery's case, the defense attempts to provide proof that bones had been moved to the burn pit from another location. Leslie Eisenberg, a forensic anthropologist, gives testimony regarding the bones found on the Avery property. She states that a fragment of almost every bone in the human body was found in the burn pit, which she believed to be the primary burn site of the body. She suspected two bone fragments found in a quarry on the Avery property appeared to be human pelvic bone. However, these bone fragments were never linked to Teresa. If the bones had been moved to the burn pit from another location, she would've expected to see breakage due to transport, which she did not see. She finds it "highly unlikely" that the bones were not burned in the fire pit.
Additionally, Rodney Pevytoe, who worked with the Arson Bureau at the Wisconsin Department of Justice, testified regarding his work in investigating the burn pit. He found wiring from in excess of five steel-belted radial tires in the burn pit. He found bone fragments "inside the wire, deeply inside of it in some cases [...] to the point where I actually had to, physically, pull apart the wire in order to get it there." The bones could not have been thrown on top of the wires after having been burned- they were almost definitely burned with the tires found in the burn pit. He also testifies to the heat generated by tire fires, stating the average tire can generate twice the amount of BTUs that an average home furnace does, and the polyurethane foam found in the van seat also burned in the fire is referred to as "solid gasoline" by fire investigators. Burning a body in a fire pit, accelerated by tires and polyurethane foam, would've been possible and taken several hours. There were also a number of implements found near the fire, with evidence of charring and oxidation, that clearly had been used in the fire pit at some point. A rake, which could've been used to stir the fire and had wires from steel-belted tires in its teeth, and a spade and screwdriver, which could've been used to chop up bones as the fire died down, where all found near the pit with evidence of charring. The soil in the pit was consistent with what soil looks like after being exposed to the oils from burning tires.
Dr. Scott Fairgrieve, who had not worked on the case, had been contacted by Strang and Buting and shown pictures and reports. He said that he could not, in his professional opinion, conclude with perfect certainty that the remains had not been moved. He stated that in cases where bones were moved, the majority of the bones ended up in the location the bones were moved to, not the original burn site.
In addition, bone fragments were in some cases less than 1/2" in diameter. Fragments of teeth were found in the burn pit. The rivets from jeans matching the brand Teresa was wearing were found in the pit. A zipper was found. It seems unlikely that someone would take such care as to move the tiniest of tooth fragments to the fire pit, but forget two larger pieces of pelvis bone.
Everyone who investigated the case, working with the Wisconsin DOJ, State Crime Lab, and an independent forensic anthropologist, believed the burn pit to be the location where Teresa's body was burned. All evidence seems to suggest the body was burned in the fire pit. The defense found one forensic scientist who could not reach a positive conclusion about the primary burn site based on the pictures he was shown. It is very hard to conclude that the bones were planted, and not burned in the pit.
One explanation is that the two bones found in the quarry were unrelated. They were found in a debris pile with other charred bones. Most proved to be animal bones. The quarry was likely where hunters would burn animal carcasses after hunting and removing the meat they wanted.
An alternative theory, if in fact the quarry bones are related, is that Avery attempted to burn the body in the fire pit. He attempted to chop up the bones, and moved some pieces that were not breaking down easily into a burn barrel in an attempt to burn them further. After breaking down the bones further in the burn barrel, he was left with two larger pelvis bones that he could not chop down. He drove them to the quarry pile, where there were a number of burned animal bones, thinking they would blend in there and not be identified as human. It seems more likely that Avery would want to move the largest pieces of bone out of his backyard, than that someone burned Teresa's body in the quarry and managed to collect tiny tooth fragments, but forgot the two larger pieces of pelvic bone. The planting theory also fails to explain why some bones would be found in the burn barrel. The bones in the pit were so burnt and chopped up that they fit into a milk jug, so there would be no reason to run to the Avery property and grab a 50 gallon burn barrel to lug to the quarry to transport the bones. There would also be no reason to plant the bones in the Janda burn barrel if one was trying to frame Avery. It makes more sense that Avery, after extinguishing the fire and noticing some bones were still clearly identifiable, would start a smaller fire in the burn barrel to break them down further, rather than getting the whole bonfire going again.
Tiny fragments of tooth were found in the pit. Pieces of larger bones were found in the barrel. Large pelvic bones were found in the quarry. It looks a lot more like someone was trying to move the largest and most identifiable pieces of bone away from their property, than that a planter was managing to scoop of the tiniest pieces of bones to plant, while forgetting the largest and most obvious.
In November of 2005, investigators searched and luminol tested Avery's garage. They were not focusing on the garage as a possible crime scene, so they did not move equipment out for a thorough search. They performed an 8 minute sweep on November 5, when looking for signs of Teresa alive. On November 6, they searched the garage for about two hours. The garage was luminol tested, and a number of areas reacted to the luminol, including one large 3' by 5' stain. Luminol can react to a number of materials, including blood, bleach, and iron. The removed the snowmobile in the garage, as it was easy to remove, but all other equipment and vehicles were left in place. They entered briefly again on Nov 8, looking for tools. It was not until after Brendan Dassey's March 1, 2006, confession that they focused on the garage as a possible crime scene. On that date, officers returned to the garage to perform a thorough search. They moved all equipment and a vehicle out during the search, and went through the large amount of debris. On this search, they found two bullet fragments. One was a small, partially destroyed fragment in a crack in the cement. The other was under an air compressor in the back of the garage.
Later testing determined the bullet found in the crack was too destroyed to match to a specific gun, but the groove marks that were identifiable did match to Avery's. The second bullet was in better condition, and was conclusively matched to Avery's .22 caliber rifle. This bullet was later tested for DNA, and the small amount of DNA on it was matched to Teresa. During the DNA test, Sherry Culhane contaminated the negative control sample by getting saliva on it as she spoke with students who were observing. The actual sample of DNA being used, however, was not contaminated.
It's entirely possible this bullet was found elsewhere and snuck into Avery's garage sometime before the March search. There is no evidence of that happening, but no evidence can conclusively prove it did not happen. However, the bullet was matched to a reasonable degree of scientific certainty to have been fired from Avery's exact rifle, not just a rifle of that model. The Manitowoc County Sheriff's Department had never been in possession of Avery's rifle; it was stored at Calumet County or the State Crime Lab in Madison, two and a half hours away. The Manitowoc County Sheriff's Department had never had possession of an item containing Teresa's DNA; her vehicle and remains were also stored at the State Crime Lab and Calumet County. No matter where the bullet was found, it had been fired from Avery's gun and had contact with Teresa's DNA, before her body was burned. The only alternative is that the State Crime Lab or Calumet County participated in the frame-job, and provided Manitowoc County officers with a bullet and DNA to plant.
In addition, Brendan Dassey testified that he helped Avery clean a large, reddish-black stain in the garage on October 31, 2005, with a mix of gasoline, paint thinner, and bleach. Luminol testing confirmed a large stain that reacted to luminol, which does react to bleach and blood. It is almost impossible to believe that Teresa was shot 11 times while standing up in a dirty garage, and all blood spatter managed to be cleaned. However, if she was shot in the back of the head while kneeling or laying on the ground, blood would be confined to the area below her head. Blood does not defy physics by spraying out the sides of the wound to coat everything nearby. Dassey's testimony and luminol tests together confirm a large area on the floor was cleaned with bleach on October 31. It is entirely possible the stain was Teresa's blood, and not motor oil as Dassey claimed to believe. Many people seem to believe that any time a person is shot it will look like a scene from Dexter, but crime scene evidence photos show that is not true. If you do not have a weak stomach because these are graphic images, you can look at many pictures of people who were shot without leaving pools of blood larger than the 3' x 5' stain bleached up from Avery's garage floor on 10/31.
The hood latch swab
On Making a Murderer, Kathleen Zellner claims “When [the hood latch swab] was tested by a microtrace chemist, he confirmed that it was completely dissimilar to hood latch swabs that he'd gathered for purposes of comparison. His sample that was actually taken from a hood latch of a car of similar vintage, there were dark marks on it, and there was absolutely nothing like that on the Avery hood latch swab.” She theorizes that a groin swab collected during Avery’s physical exam was switched with the swab used on the hood latch, therefore making it appear that Avery’s DNA was on the hood latch.
Her microtrace chemist, Dr. Palenik, doesn’t quite say what she claims. In his affidavit, he states:
A microscopical analysis of the hood latch swab fragment submitted to us (Item ID swab from hood latch/ trial exhibit #205 / Independent Forensic Ex. 1) shows that it is composed largely of fine mineral grains and other particles of airborne dust (e.g., pollen). This is qualitatively consistent with the size range and composition of debris collected from the hood latch of an exemplar 2012 Toyota Rav 4.
In other words, the hood latch swab from Avery’s case had “mineral grains” and “pollen” on it that were completely consistent with swabs taken from the hood latches of example vehicles. Zellner never explains why Avery would have mineral grains and pollen on his groin, that were consistent with the makeup of a hood latch swab. However, Palenik does say he did not see any dark marks on the hood latch swab from Avery’s case, unlike the exemplar swabs:
Swabs collected from the hood latches of two exemplar vehicles (a 2012 Rav 4 and a 2007 Volvo S60) each showed a considerably heavier loading of debris. Whereas particles on the hood latch swab (item ID / trial exhibit #205) could only be seen with the aid of a microscope, a swab from each exemplar vehicle showed a heavy, dark streak of collected debris that is clearly visible to the unaided eye.
While the makeup of the debris on Avery’s hood latch swab closely resemble exemplar hood latches, the amount of debris was different. It wasn’t visible to the naked eye. There is, however, an explanation for this. Before being sent to Dr. Palenik for microtrace analysis, the hood latch swab was sent to Dr. Reich. Dr. Reich, in his affidavit, actually says the dark mark was visible to the naked eye:
The evidence consisted of cotton batting, a portion of which was discolored / soiled and presented in a plastic bag.
Before sending the hood latch swab to Dr. Palenik with the visible stain, Dr. Reich did his own testing. In order to do his bodily fluid analysis on the swab, he “'soaked' or wetted” the swab in liquid to “promote the solubilization of the bio-marker.” Or, in his “more prosaic terms”:
the evidence is dunked in water and agitated to promote the release of the biological material into the liquid phase
In even more prosaic terms, Reich washed all the visible dirt off the swab before giving it to Dr. Palenik for testing. Is there still any mystery as to why it had a lesser quantity of debris as other hood latches, despite having the same make-up?
To lend credence to this theory of the hood latch swab being switched with Avery’s groin swab, Avery submits an affidavit claiming:
During the physical examination of my body on November 9, 2005, the nurse took two swabs near my groin at the request of Calumet County Investigator Wiegert. I saw the nurse who took the groin swabs hand them to Investigator Wiegert. As I was being taken out of the room by Agent Fassbender and the nurse, I saw Investigator Wiegert pretend to put the swabs in the hospital-type waste basket but I did not actually see the swabs leave his hand and fall into the basket.
He has never mentioned this in any previous interviews, since his arrest in 2005. The nurse who did the physical exam was interviewed, and specifically remembered putting the swabs in a sharps container that was locked and secured to the wall. As I’m sure any nurse would agree, she would not simply hand loose swabs to an investigator and leave the room. Avery’s new “memory” seems specious at best.
Aside from Avery’s “memory”, we have nothing indicating the hood latch swab was planted. The nurse herself refutes giving the groin swabs to Inv. Wiegert. The mineral grains and pollens found on the hood latch were consistent with exemplar hood latch swabs. The only difference was the amount of mineral grains and pollen found on the hood latch swab, which is easily explained by Dr. Reich washing the swab before Dr. Palenik examined it.