Making a murder on Netflix
EPISODE VI: TESTING THE EVIDENCE PRESS CONFERENCE—Pros. Kratz and Sherriff Pagel hold press conference 1.Based on what you have learned about a prosecutor’s ethical duties, what do you think of the statements made by Ken Kratz during the press conference on March 2, 2005. 2.Defense Attorneys, Jerry Buting and Dan Strang, discuss the case. Why does Dan Strang comment that it is clever on the prosecution’s part not to call Brendon Dassey as a witness. WITNESS; SPECIAL AGENT HEIMERL WISCONSIN DOJ DIVISION OF CRIMINAL INVESTIGATIONS Four months after the initial November search, on March 1st and 2nd, law enforcement sought search warrants and returned to Avery’s property to search for additional evidence. Law enforcement discovered a flattened bullet in the garage. WITNESS: DETECTIVE DAVE REMIKER MANITOWOC COUNTY SHERRIFF’S DEPARTMENT Remiker testifies that during the searches, eleven (11) empty shell cases were found on the floor of the garage. 3.Defense attempts to minimize the impact of this discovery. Do you think its strategy was effective? Q: “Did you find any bullets?” A: No bullets were found in November 5th-12th, 2005 search (5 entries into garage). Four months later on March 2, 2006, investigators found a bullet fragment Q: Was Lieutenant Lenk at the search on March, 2006? A: Yes 4.Afterward, defense makes a point that the Manitowoc County should not have been involved in the searches. In light of the conflict of interest, do you find anything wrong with the fact that Manitowoc officials were heavily involved in the investigation? Important Dates: March 1st and 2ndMarch 1st—Brendan Dassey’s confession March 2nd-press conference relaying confession New Search WITNESS: TOM FASSBENDER CO-LEAD INVESTIGATOR/ CALUMET COUNTY During the initial searches (Nov. 5th -12th, 2005), there was no evidence found that Teresa was shot. In late February, police discovered that Halbach had been shot in the head. Coincidently, four months after the initial search, they found a bullet fragment in the garage.
WITNESS: TOM FASSBENDER… DIRECT EXAMINATION Fassbender government witness CROSS EXAMINATION Defense establishes that before March 1st and 2nd (until Feb. 28) there was “not one shred” of physical evidence linking Halbach’s DNA to Avery’s trailer or garage. REDIRECT EXAMINATION Prosecution asks about Bill of Sale and paper displaying Halbach’s cellphone number stating that this links her to the trailer. Prosecution also asks, “How many items seized?” Answer: >970 RE-CROSS EXAMINATION Defense comes back with “None of these exhibits show that Halbach was inside the trailer or garage, do they?” *Prosecutor Kratz makes strange comment–“That’s evidence that Bobby provided right?” Objection: Defense objects to his comment and moves to strike the question and answer stating that it was not the testimony. “Bobby Dassey never said that he saw Halbach in the trailer.” Judge Willis sustains the objection stating that “…it’s beyond the scope of redirect.” DISCUSSION: Read the above summary. Pay attention to the examinations. What do you think of the judge’s ruling on the objection—Beyond the scope of redirect??? Does this make sense to you? WITNESS: DR. LESLIE ELSENBERG FORENSIC ANTHROPOLOGIST Witness testifies that the manner of death was homicide/violence. SHERRY CULHANE DNA TECHINICAL UNIT (DIRECT EXAMINATION) Witness testifies that Halbach’s DNA was found on bullet fragment found in the garage (EX. 237) Culhane’s DNA was inadvertently introduced into the control group and she could not explain exactly how her DNA got into the mix. WITNESS: SHERRY CULHANE… CROSS EXAMINATION Defenses position is summed up by a male reporter—if you don’t know where Culhane’s DNA came from, you don’t know where Halbach’s DNA came from. Witness cannot pinpoint source of DNA, that is, witness does not know whether the DNA on the bullet came from blood, saliva or any other source. Witness failed to follow protocol. According to protocol, if a manipulation control is contaminated in some manner, the examiner is supposed to report that the test was inconclusive for match purposes. Witness knew the manipulation control was contaminated but she didn’t run another test nor state that the test results were inconclusive per protocol. No other test results put Halbach in the garage or trailer.
Additionally, according to defense, the bullet was found under suspicious circumstances. It was not found in the November search (despite five entries into the garage) but was found in the March search (after they discovered that Halbach had been shot in the head. Also, the test was performed in March, four months after the other tests were performed. 5. What are your thoughts about all this? Defense projects a note from Fassbender on the screen. Fassbender had asked the witness to, “Try to put her in the house or garage.” Witness did link Halbach to the garage through her testimony, however, in doing so, she violated protocol. PETER BAETZ (Defense investigator) states that had victim been shot in the head with a 22 caliber gun, there would’ve been blood splatter and pools of blood in the garage. Avery could not have cleaned the blood off of every single item in that garage. 6. What is your opinion regarding the lack of blood found in the garage? Would you like to hear from a blood splatter expert? Why? 7. Defense asks witness. “Did you find Brendon Dassey’s DNA?” What is the point of this question? 8. What do you think about the fact that she didn’t find Brendan’s DNA in the garage? PRESS CONFERENCE: KRATZ-Until my closing argument you are not going to hear a summary from me as to how this murder occurred. 9. Why do you think the prosecution is holding its theory and theme under wraps? CIRCUMSTANTIAL EVIDENCE Kratz states that is evidence is not “circumstantial” because there is “…lots of scientific evidence that points to one individual as having committed the crime.” 10. Considering the definition of circumstantial evidence, is Kratz comment correct? In the next scene, the defense attorneys talk about the most incriminating evidence that the prosecution has. List each item of evidence. State whether it is direct evidence or circumstantial evidence? 11. Defense attorney comments that out of 18 days of testimony, they were able to bring in their theme 15-16 days. Explain. DR. LESLIE EISENBERG FORENSIC ANTHROPOLIGIST DIRECT EXAMINATION Witness testifies that of the three pits where human bones were found (behind garage/ burn barrel/ quarry pile (pelvic bones) she believes that the primary burn site was behind the garage (where the vast majority of bones were found). Witness opines that the body was burned behind the garage and then the bones were moved to the other two sites. She reaches this opinion based on the breakage of the bones. CROSS EXAMINATION Q: “You can’t rule out the possibility of another possible burn site can you?”
A: No 12. At this point, what do you think happened? Where do you think the body was burned? WITNESS: SCOTT FAIRGRIEVE FORENSIC ANTHROPOLOGIST NOTE: Witness is a defense witness. Due to editing, he appears to be a state witness introduced during the prosecution’s case-in-chief. Witness testifies that based on recovery method (no systematic approach to the excavation), he cannot give an opinion on where the bones were burned. Witness does not agree that the primary burn site was behind the garage. He has been involved in other cases where the burnt bones were moved, and states that the location where the bones were moved is where most of the bones were found. 13.What is the defense’s theory with respect to how the bones ended up in three locations on Avery’s property? WITNESS: NICK STAHLKE BLOOD STAIN PATTERN ANALYST Witness testifies about Halbach’s blood in the RAV4 14. How does the fact that Halbach’s blood was found in the RAV 4 help the defense’s case? WITNESS: SCOTT TADYCH BARB’S HUSBAND Witness testifies that on October 31, 2005, he went to his trailer/home about 2:30-2:45 p.m., reached the woods about 3 p.m. (to deer hunt), observed Bobby Dassey on Highway 147 before then at approximately 2:45 p.m. and later that day, saw a fire in Avery’s yard with flames rising 10 feet tall. CROSS EXAMINATION Defense used an investigatory report to refresh Tadych’s recollection. He had initially reported to law enforcement that he got home about 3:15 p.m. and that the flame from the fire in Avery’s yard was 3 feet high. Bobby Dassey and Scott Tadych alibied each other. WITNESS: LISA BUCHNER HIGH SCHOOL BUS DRIVER NOTE:This witness is a defense witness. Due to editing, she appears to be a state witness introduced during the prosecution’s case-in-chief. Witness testifies that she dropped the Dassey brothers off at their home at 3:30 or 3:40 pm the day in question (as she does every day). She saw Halbach taking photographs of the van at that time. 15. What do you think about the fact that this witness (bus driver) gives a different arrival time than Bobby Dassey? Also, it contradicts Tadych’s testimony making it impossible for Tadych to have seen Bobby Dassey on the highway prior to 3 p.m. Remember–Kratz put Bobby Dassey on the stand to establish a timeline. Are you suspicious of either men?
EPISODE VII: FRAMING DEFENSE WITNESS: SERGEANT WILLIAM TYSON CALUMET COUNTY SHERRIFF’S DEPARTMENT Witness understood that no Manitowoc deputy should be alone on the Avery’s property due to the conflict of interest. Witness was to accompany Manitowoc deputies into the trailer and document their conduct and any items they seize. Witness was teamed up with Lenk and Colburn and Detective Remiker from the Manitowoc County Sherriff’s Department. SERGEANT WILLIAM TYSON…. CROSS EXAMINATION Q: Have you ever had to be a watchdog for officers conducting a search? A: No Q: Do you agree it would have been very difficult for Lenk or Colburn to plant evidence (key) under your watch? A: Yes. Q: But you were not with Lenk or Colburn when they re-entered the trailer again on November 8, the day the key was found, were you? A: No 1. What is the defense trying to show with this line of questioning? DEPUTY DANIEL KUCHARSKI CALUMET COUNTY SHERRIFF’S DEPARTMENT DIRECT EXAMINATION Q: “Do you believe that Lenk or Colburn had an opportunity to plant the key “out of your sight”? A: the only person who had the key was the person who killed Thresa. OBJECTION: Speculation 2. Please explain the objection- speculation. 3. Judge Willis sustained the objection. What does that mean? 4. Defendant moved to strike. What does “move to strike” mean? To cover his @$$, Kratz throws in a comment, “Is that in the sense that anything is possible?”
5. An attorney prepares his witness for court. Do you think Kratz did a good job prepping this witness. Why? Why not? CROSS EXAMINATION Defense reiterates that it was the function of the witness to be a watchdog. Q: When you came into the bedroom during the first search, there was no key on the floor, was there? A: No. The key somehow fell off the book shelf. 6. What is the defense trying to demonstrate with respect to the key? Was this effective? WITNESS: LT. JAMES LENK MANITOWOC COUNTY SHERRIFF’S OFFICE CROSS EXAMINATION Q: November 8th was at least your third time searching the residence, right? On November 5th someone searched the bookshelves, right? Colburn took everything out of the book case so he could search inside, right? Q: Did you look at it when it was empty? A: Yes Q: Did you see a black lanyard in the bookcase? A: No 7. What do you think about the late discovery of the key? Do you think they missed the key during the searches on Nov. 5,6, and 7? Do you think the key was there all along? If not, how do you think the key got there? Defense makes the point that Lenk volunteered to search the trailer, then asks–Did you mention to Fassbendber (lead investigator) or any other Calumet officials that you’d been deposed in the wrongful imprisonment charge (Avery v. Manitowoc County)? Q: Would it had been “more fair” to Avery if a person, other than someone who’d ben deposed in the civil lawsuit, had searched the trailer? A: No 8. What objection could Kratz have asserted to the defense’s above question? 9. The Manitowoc Sherriff’s Department had a conflict of interest with respect to the investigation of Avery’s residence. Do you think the Manitowoc Sherriff’s office did anything wrong by investigating the murder case? Why?
WITNESS: ANDREW COLBURN MANITOWOC COUNTY SHERRIFF’S OFFICE DIRECT EXAMINATION On November 8th, Colburn re-entered Avery’s bedroom with Lenk and Kucharski. Witness says he shook, pulled and twisted the bookcase, and then Lt. Lenk said, “There’s a key on the floor.” (It’s a miracle!) Witness states that Avery said that “…he never talked to Halbach when she came to take photos of the van.” Witness testified that in 1994 or 1995, working the capacity of a correctional officer, he received a phone call from a detective who stated that someone who had committed an assault in Manitowoc county was in their custody and Manitowoc County may have someone in jail who may not have committed the crime. Colburn transferred the call to a detective. ANDREW COLBURN…. CROSS EXAMINATIONWitness knew that Holbach was reported missing on November 3, 2005. This was three weeks after his deposition in the Avery v Manitowoc County case. Q: As the shift commander, you could’ve asked assigned anyone in road patrol to the address, but you went yourself? A: Yes Q: When did you make a written report of your conversation with Avery that took place on November 3, 2005. FACT: On June 6, 2006, almost 8 months later, Colburn wrote down what Avery had said to him. FACT: Colburn was in the Avery residence on November 5, 6, 7, and 8. Lenk was with him each time. Colburn’s investigatory report (one page) said nothing about the discovery of the RAV4 key? Defense asks him—Were there things you didn’t want to commit to paper? 10. What is the defense insinuating? What would you have asked him? Q: Did you write a report about a phone call you received in which the caller informed you that the wrong guy was in jail. A: No Defense’s response: Actually, you did write a report, but it was eight years later. You wrote a statement in 2003, the day after Steven Avery finally walked out of prison, didn’t you? REDIRECT EXAMINATION 11. What does “rehabilitating a witness” mean? 12.Do you think prosecution does a good job rehabilitating this witness on redirect?
RE-CROSS EXAMINATION Q: How many calls have you received from another police officer stating that the wrong guy is in jail? 13.Is this an effective re-cross? Why? Why not? 14. Do you think Colburn is a credible witness? Deceitful? Truthful? 15. What is the legal definition of a conspiracy? 16. Why do you think the defense is confident about their case? WITNESS: SERGEANT JASON ORTH MANITOWOC COUNTY SHERRIFF’S DEPARTMENT Witness was the first officer to arrive at the salvage yard after Pamela and Nikole Sturm discovered the RAV4 in the Avery salvage yard. Witness testifies that he took rough field notes but tore them up. His sign-up log starts at 2:45 p.m. WITNESS: SPECIAL AGENT TOM FASSBENDER CO-LEAD INVESTIGATOR/CALUMET COUNTY DIRECT EXAMINATION Witness arrived at the salvage yard (location of RAV4) at approximately 2:25 pm and told officer Orth to start logging in those people coming to and leaving the property. CROSS EXAMINATION 17. What does the defense try to show with respect to the fact that Lenk did not sign in the log? WITNESS: LT. JAMES LENK MANITOWOC COUNTY SHERRIFF’S DEPARTMENT Witness arrived to the salvage yard at approximately 2:00 pm. He arrived before the log was put into place. Witness testifies that he had no contact with the RAV4. Witness testifies that he didn’t plant Avery’s blood in the RAV4. CROSS EXAMINATION Q: When did you arrive to the salvage yard (checkpoint). A: Approximately 2 o’clock. FACT: During an August 9, 2006 deposition, Witness testified under oath that he arrived to the salvage yard between 6:30 p.m.—7:00 p.m.
18.Witness signed out at 10:41 p.m., however, he never signed in between 6:30 p.m.–7:00 pm when the log was in effect. What is the significance of this? What is the defense trying to show? FACT: In 2002, one year before Steven Avery’s exoneration, evidence from his 1985 case file was sent to the state crime lab for DNA analysis. (hair and fingernail cuttings). Lt. James Lenk was involved with transmitting the evidence in 2002, and therefore, knew that Avery’s blood (taken during the old case) was in the clerk’s office when Halbach’s vehicle was found in 2005. 19. How is the defense using this information?WITNESS: LYNN ZIGMUNT CLERK OF MANITOWOC COUNTY CIRCUIT COURT 20. Do you think this is prosecution or defense witness? Witness testifies that the court file contains exhibits and paperwork. The sheriff’s office has 24-hour access to the clerk’s office. The security bailiff has the master key. 21. What is the defense trying to show through this witness’s testimony? EDTA TESTS: When blood is kept for tests, the preservative, EDTA, is added to preserve the blood. Human’ do not have EDTA in the blood stream so if it’s found in a blood stain, then the argument is that the EDTA came from preserved blood. ISSUE: There is no accurate test to determine if EDTA was contained in the blood stain found in Halbach’s RAV4. The prosecution asked the FBI to create a test. One week before the prosecution rests it’s case, it announces that the results are in from the FBI’s newly developed EDTA test. *Judge Willis ruled that the test results were admissible. Willis is the first judge to allow the results of this unreliable test into evidence. 22. What is the criteria to admit scientific evidence into trial? WITNESS: DR. MARC LEBEAU CHEMISTRY UNIT CHIEF, FBI, QUANTIOC, VIRGINIA 23. What was the witness’ conclusion with respect to the EDTA test? Q: Do you have an opinion to a reasonable degree of scientific certainty whether the blood stains were planted in the RAV4? A: The blood did not come from an EDTA tube. CROSS EXAMINATION
Witness testified that he ran the test because he was concerned about law enforcement being accused of illegal conduct. In fact, the prosecution requested FBI services in order to establish a lack of EDTA in the blood stains found in the RAV4. This would eliminate the possibility that the police planted Avery’s blood in the RAV4. Witness testified that based on the test results of three swabs (out of six swabs) found in the RAV4, none of the blood in the RAV4 was planted (because none of it contained EDTA). 24. What is the problem here? Do you find this witness credible? WITNESS: JANINE AVIZU LABORATORY DATA QUALITY AUDITOR NOTE:This is a defense witness. Due to editing, she appears to be a state witness introduced during the prosecution’s case-in-chief. Witness testimony: Test is specific in that you are looking for EDTA. If the result is positive, there is definitely EDTA present in the blood. However, the test is not sensitive meaning there is a possibility that EDTA is present in the blood but it is not detected because the detection level was set too high. NOTE: There is no evidence to show at what level detection was set. There is no evidence that the FBI even validated the test. The FBI witness didn’t calibrate the machine to determine the concentration or show that the machine would accurately measure the EDTA in the blood. FBI witness (Dr. Marc LeBeau) should have produced records showing the detection levels and proof that he had calibrated the machine and the test was accurate (standard procedure). Witness Avizu states that the three stains tested could have come from the vial even though there was no EDTA detected because the test was not validated and the detection level could have been set low.
EPISODE VIII: THE GREAT BURDEN 1.Steven Avery decides not to testify. The documentary doesn’t show the defense’s case-in-chief. Defense, however, did put on some witnesses. Does defense even have to put on its own witnesses or produce evidence? 2.Summarize the prosecution’s closing argument. That is, explain the prosecution’s theory and list the evidence that the prosecution referred to in the closing argument to support its theory. 3.Summarize the defense’s closing argument. That is, explain the defense’s theory and list the evidence the defense referred to in the closing argument to support its theory. 4. DELIBERATIONS One of the jurors had to leave due to a family emergency. Defense had to figure out what to do about the vacant seat. What were the defense’s options? 5. VERDICT The judge is shuffling papers prior reading to the verdict? What are the papers? 6.Do you agree with the verdict? Do you feel the prosecution proved each element of murder beyond a reasonable doubt? Do you feel the defense raised reasonable doubt? 7.If you don’t think Avery did it, are you suspicious of anyone else? Who? 8.What is your theory as to what happened in this case? 9.What do you think about Brendon Dassey? Do you think he knows more than he’s letting on? 10.Discuss three facts about the case which were discovered after the documentary aired.
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