Opinion on ‘Making a Murderer’ (The Steven Avery Case)

Thomas Mollett – March 2021

This short preliminary Opinion will only look at some points regarding this case as specifically displayed in Netfix’s Making a Murderer (P1 and P2). I am still exploring the case (which includes looking wider than MAM) and I will, at a later stage, publish a more comprehensive Opinion and video on the case. For now, I will concentrate only on a few forensic aspects, and also on the approach of Kathleen Zellner, Avery’s attorney, and on the input of her experts.

What I specifically want to focus on, for now, is Zellner’s firm assertion and allegation that the police framed Avery by planting his blood in the murdered Teresa Halbach’s vehicle. I am not going into the background of the case, and more background can be found on the internet, such as on Wikipedia.

I need to start with Kathleen Zellner. Zellner is famous for getting 17 wrongful convictions overturned. I do not know enough about the merits of any of these cases to say anything about them. But, what is clear to me, at least, is that the Avery case is simply a challenge for Zellner – nothing more – it is simply to add another wrongful conviction case to her list. Early on, before a proper and full investigation, she declared that her firm “is looking forward adding the Avery case to their list of overturned cases”. She also declares on Netflix that she firmly believes that Avery is innocent and that “she would bet her life on it”. At the same time, Zellner declares that apart from her needing to destroy the State’s case, she is “actually more interested in knowing what really happened”. There are a lot of contradictions and signs of an erroneous approach here.

It is clear that Zellner already decided that Avery is innocent – and it soon becomes evident in the way she conducts experiments and how she engages with her experts, that this is all she wants to prove – she is not really interested in what really happened. It is clear that Zellner does not investigate all possibilities, and that she is only out to disprove the police’s version at all cost, and to get back at State Attorney Ken Kratz, who she clearly detests. Zellner is out to grind axes. In another case (also on Netflix), she talks about “getting revenge”.

It is fine that Zellner is Avery’s attorney, but when you investigate forensic matters, you do not mingle with the family, as this can lead to a biased approach creeping in. You do not sit with them and console them, and promise them how you would free their son. Zellner must decide if she is an attorney or a forensic investigator. She is clearly way too emotionally invested in the case, and it becomes very clear in the way she approaches her investigation. A forensic investigator investigates a case irrespective of what the outcome may be – but can certainly drive campaigns once firm and robust evidence has been uncovered. Evidence you are not only willing to defend in a court of law, but evidence that you can actually defend. But, the investigation itself cannot be driven by emotion and sentiment.

Just to put a few things on the table first. I do not make any case here that Avery is guilty, or that the police’s conduct was all above board, or that Ken Kratz is a savoury character. The question simply is: How right and robust is Zellner’s approach?

Let’s look at Zellner’s approach regarding the blood in the victim’s vehicle. Just a short background, for context. Steven Avery’s blood was found in the victim’s vehicle. Next to the ignition, there was what appears to be a swipe-like contact-transfer bloodstain mark. On the side of the left front seat, there was an elongated bloodstain mark – that shows signs of flow. There were some other bloodstain marks and blood flakes as well but no blood was found on the steering wheel and on the gear lever knob. What we do know, is that at some stage circa the murder, Avery sustained a rather severe cut to his right middle finger.

So, Zellner set out to prove that the bloodstain mark next to the ignition could not have been made by Avery’s bleeding finger. To prove this, she pasted a piece of paper where the mark was found and then asked her associate, with blood on his middle finger, to stick the key into the ignition and turn it, a couple of times, to see if the middle finger would touch that area. It did not. So she found that it can’t. “Even if you do it a hundred times.” And that this is now “a lie” by the police. “If you find one lie like this, there must be more …” Zellner then set out to prove that there would have been blood on the door handle if Avery opened the door of the vehicle (on the premise that he committed the crime). With her experts, she asks why no blood was found on the steering wheel and on the gear lever knob.

There are quite a lot of issues here, most of which left me dumbfounded. Regarding the mark close to the ignition, this “test” was done in a highly controlled and “perfect-world” way (with calculation not excluded) – not what you would necessarily find with an anxious man, perhaps in the dark, trying to start a vehicle, when he may not get the key in the first time – and, where he may have elevated his injured finger away from the others so that it does not touch the key or the other fingers – because the finger is sensitive. It may then well touch that area where the bloodstain mark can be seen. Zellner did not consider or test this possibility.   

But, then it became weird. So, Zellner “proved” that blood would have come onto the door handle if Avery opened the door. But, she conveniently assumed that he can only open the door with his right hand – as if it is impossible that he could have opened it with his left hand. On the premise that Avery is guilty, one can only wonder what conceivable reason can there be that he could not have opened the door with his left, uninjured hand.

[In fact, when you open a left-sided door of a vehicle, you will most likely use your left hand to do so – since when you use the right hand, your body is in the way of the opening door. Standing to the right of the door as you face it and while opening it with your left hand, the door will swing open past your left side, without you having to move one bit. So, it would not have been strange if Avery opened the door with his left hand. Why was this never raised by Zellner? This goes way beyond a mere oversight and ventures to the realm of plain dishonesty.]

Then, Zellner and her experts, a bloodstain pattern expert (Stuart James) and a forensic pathologist (Dr. Larry Blum), wonder how an open, bleeding wound could have left such isolated and widespread stains, and not all over the place. It must have escaped them that it is very easy to wipe a bleeding finger off on your clothes – which would remove blood for a while, for it to yield more blood, to be wiped off again. Or you can keep it tucked in your shirt to limit the bleeding. This may explain why no blood was found on the steering wheel and on the gear lever knob. (Even if he wiped his finger off on his clothes, or lifted it away from the others, one may still expect minute traces of blood on the steering wheel and lever knob, from transfer from the hand or other fingers that may have had some blood on, but it may depend on how well these areas where swabbed. It is unlikely that every square millimeter was swabbed.) There is also the possibility that he could simply have elevated his finger not to touch the steering wheel or knob, simply because it was hurting and sensitive (so the finger is essentially dangling in the air). Whether this happened or not, it is disconcerting (but not surprising) that these possibilities were not raised and considered by Zellner, which confirms her selective and biased approach.

[Of course, a vehicle’s door can be opened without using all your fingers, and the cut on his finger was on the outside. So, even if he opened the door with his right hand, blood transfer onto the handle was not a given. Then also, a steering wheel can be operated by using only one hand, or with the assistance of, say, the palm of the other hand. Ten fingers on the steering wheel are not required. Whether automatic or manual, the gear lever knob also does not necessarily require a full grip with all fingers.]

Then, while I thought the bloodstain pattern expert, Stuart James, tried to be reasonable (one could sense his discomfort at times), he was pushed and led by Zellner to give the explanations and answers that she wanted. Their experiments to disprove the police’s claim that the spatter on the back door was caused when the body was “flung into the back”, were particularly odd. The police’s version may not be true (not that is necessarily a lie, simply that it is not the real explanation) but even if it is not quite what had happened, it still does not mean that there are no other possibilities that would still implicate Avery. And this is a problem throughout with Zellner’s approach. She only wants to disprove the police’s claims at all cost, without looking at all possibilities.

So, they flung a dummy with short, stiff, artificial hair, drained with blood (of which we don’t know the make-up of), into the back of the vehicle, to disprove the police’s version. Not taking into account many variables, one which is the viscosity of blood at the time of the action. If Halbach was deposited into the back of the vehicle, nobody can simply assume that it would have been immediately after she died. Another variable is the distance between the source of the blood and the stained surface, as small drops can fly in an arc when the distance is rather long – and therefore directionality is not always crystal clear from the shape of a stain on the stained surface.

Zellner’s associate, then, with his back to the back-door, performs a rather strange experiment, by flicking a hammer backward as he tries to simulate an attack with a hammer, trying to establish how the cast-off spatter pattern on the door would look like. All well, but that is not how a hammer is moved backward when cocking it up for the next blow. The action is much slower and there is no turn of the hammer. Why did the tester not rather face the back-door, to see what may happen from forward cast-off – where blood droplets could have flown off the hammer’s head as it was projected forward at an exponential speed, as is the case with hammer blows? Or why did they not do simulated blunt impact tests on a head, with the head positioned close to the door? Zellner asked James about this, but when he said, “then it becomes difficult”, it was simply left there. Again proving a selective and pedantic effort to disprove the police’s “flung in” version at all cost, as if there are no other possibilities. That is not “to find out what really happened”. That is to selectively prove what you want to be true, at all cost. And that is not the way to go.

Then the input of DNA expert Karl Reich was quite peculiar, to say the least. This with regards to the “sweat DNA” that was found on the latch below the bonnet – Avery’s DNA. In a smug and very confident way, Reich declared that one cannot test for sweat. Which is simply not true. The police may not have tested for sweat, and it may not be a standard test and not routinely done, but to say that there is no test for sweat, is untrue. While non-specific, and while not widely used, there are ways to detect certain chemical compounds (i.e. sodium, phosphorus, sulfur, chlorine, potassium, calcium, and other metal traces) in relative concentrations in sweat, which would at least distinguish it from other body fluids such as blood, saliva, vaginal fluid, breastmilk, urine, or semen. Read more about body fluid identification for forensic purposes here.

Let’s look at exclusion. While bloodstains may not always be visible with the naked eye, given the quantity of DNA found, one would expect that if blood was the source (or carrier) of the DNA, it would have been visible. If there was reason to believe that it may be blood, routinely used reagents such as Luminol or Blue Star would give a presumptive indication. So we can rule blood out. Also semen. Apart from pretty obvious practical problems (i.e. where would they get his semen?) sperm DNA is haploid (i.e. it only has only one set of chromosomes as opposed to diploid DNA, of say, blood), so it would be detected and distinguished as such. That leaves saliva and sweat. Breastmilk and vaginal fluid can be excluded for obvious reasons. Urine carries very little DNA, as pure urine also does not contain DNA. (It mainly carries loose cells collected from the urinary tract.)

Presumptively one can test for saliva with the alpha-amylase test. But, where would they have gotten Avery’s saliva? From a swab? (As Zellner implies) Unlikely, the swabs that were taken would have been used in the extraction (lysis) process, where the cotton tip is wholly dumped into a test tube with a solution in, to break the cells open to release the DNA for further downstream processes in the profiling process. Even if they had an extra swab – it would be difficult to transfer any significant amount of DNA from an absorbent and dry swab. If they wettened it, it would have diluted the sample.

Reich declares that blood and saliva are very rich in DNA, which is not necessarily untrue, but it may depend. Blood actually only contains 1% DNA, as of all cells in blood, only white blood cells (WBC) contain DNA – and WBCs constitute only 1% of blood cells. In saliva, it may depend on the amount of loose epithelial buccal cells in the mouth at the time of sampling, as pure saliva does not contain DNA. WBCs contribute significantly to the DNA constitution of saliva.

It is also important to note that contrary to popular belief, pure sweat also does not contain DNA. Sweat simply collects and carries loose epithelial cells from the skin and transfers them onto surfaces. While there is a debate (among a very few) about “shedding” – it can reasonably be understood and accepted that a person who did not shower for a day, who is sweaty and has dry skin, may yield significantly more sweat (or transfer) DNA than that very same person who had a shower recently, and who sits lotioned in an air-conditioned laboratory.

Reich’s experiments to show how unrealistically “high” the DNA quantity under the hood is, by doing laboratory-bound and controlled experiments, are simply not robust and reliable. In a certain set of conditions, sweat can transfer a whole lot of DNA (imagine a man stroking his hands through his sweaty, dandruff-rich hair). Furthermore, an anxious person (i.e. one that just committed a murder and needs to get rid of the body) can sweat profusely, and by virtue of that, the sweat may collect and transfer more DNA onto surfaces than is normally the case. Whatever the case may be, these issues were not explored by the DNA expert. Reich gave Zellner the answers that she wanted.

I actually found their arguments rather self-defeating. It does not seem to be disputed that it was Avery’s DNA under the hood, on the latch, and that the DNA count is high (they use this high count to dispute sweat, so they accept the high count). But, they argue that it was planted on the latch and dispute that it was by sweat transfer. So, that only leaves us with saliva. But, again, where did they get Avery’s saliva from? [Just again, a person that did not bathe or shower recently – whose skin is dry and flaky (i.e with dandruff), and who is sweating profusely, can transfer a lot of DNA by sweat, as the sweat picks up loose epithelial cells from the skin. This is a much more realistic proposition than stealing Avery’s saliva.]

While saliva is routinely used in DNA tests and while it yields enough DNA for that purpose, it is not necessarily and always an incredibly rich source of DNA. DNA in saliva would come from loose buccal epithelial cells and white blood cells – WBC which only constitutes 1% of blood – so while it may be a good source it is not necessarily incredibly rich in DNA. It is quite possible that a cell-rich sweat sample can yield the same (or more) DNA as a saliva sample. A further problem with saliva is that degrading enzymes and bacteria within the sample attack DNA integrity and decrease quality very quickly. (A human’s mouth is full of bacteria – that is why a human bite can be so infectious – bacteria is not good on the integrity of DNA). Therefore, DNA in a saliva sample may not last very long, and a planted sample under the hood may have expired soon in terms of DNA yield. Based on this conspectus of points against saliva, saliva can be ruled out. So too vaginal fluid, breastmilk, and urine. Which leaves us with sweat. So where did they get Avery’s sweat from?

What must be borne in mind is that nearly all DNA in your house, as you read here, was transferred there by sweat. DNA is all over the place because of sweat transfer. Sweat is a popular carrier of DNA. Sweat collects loose cells containing DNA from the skin and carries it onto surfaces. Therefore, sweat transfer onto a latch is not an unreasonable proposition to believe.  [Apart from transfer by body fluids, DNA transfer onto surfaces can only happen when loose cells (such as dry skin flakes) fall from the body onto surfaces, and from hair and nail clippings. Retention properties and quantities would be minimal and, therefore, these can also be excluded as the source of the DNA under the hood. Which leaves us with sweat as the most likely candidate.]

Then a particularly weird statement by Karl Reich. He found it an “anomaly” that if Avery was guilty and given that his finger bled, that there was not a mixture of his blood and the victim’s blood. Zellner, theatrically, declares how strange it is that “all her blood was found in the back” and “all his blood in the front” of the vehicle. I would really like to ask both Reich and Zellner: Assuming for the sake of the argument that Avery is guilty, who said he bled at the same time that the body was put in the back of the vehicle? It is quite possible that he could have killed Halbach – chucked her into the back of the vehicle – and then injured himself (but before getting into the vehicle). In fact, it is quite possible that he injured himself minutes or even a few hours later. Nothing about the bloodstains can indicate that they were deposited at the same time, or even close to the same time. Or even hours or days apart. On the assumption that Avery is guilty, it would actually be unlikely that he sustained the incision wound on his finger during the attack – as the victim was unlikely to have had a sharp weapon handy to inflict that incised wound. So, it is very possible that he sustained the wound afterwards; say, when he went into the house after he killed her – in whatever way. We do know that he had a cut on his finger. It is common cause. He could have sustained the wound in the minutes or hours after the murder just as he could have sustained it at any other time. The point is, the fact that there was no mixture of their blood, means absolutely nothing. Also, it is possible that he recurringly and concurrently wiped his finger off on his clothes while he placed her in the back of the vehicle. Things do not always happen as we see it in our heads.

There are some other issues too, especially on the circumstantial side, which I will get to at a later stage, but for now, just a brief but important question to Zellner, and to those that slurp up her every word. Steven Avery himself told anybody who cared to listen, that at some point after the murder, his finger re-bled and that he bled into the sink in the kitchen. He then alleges that the framers (which must be the police) drew his blood up from the sink – and that this blood was used to frame him by planting it in the vehicle. The question is: How did the police know that his finger was going to re-bleed – or that it re-bled at a particular time – and that they needed to stand ready with a syringe pump to quickly go to the sink to draw the blood up? This would also entail breaking into his house – he could have arrived back anytime. How could they know his movements?

The police would also have needed an impossible amount of foresight to move the vehicle around on the Avery property and to burn the victim just about next to Steven Avery’s house without being seen (or fearing to be seen); it was impossible for the police to have had this type of foresight. And it would have needed an incredible amount of luck not to have been seen by the various occupants living on the property, including by Avery himself. Coincidence can be ruled out – they needed to be near Avery when he re-bled in order to have sucked the blood up before it congealed – and how much can a healing wound bleed? The stains in the vehicle suggest a reasonable amount of blood, not only a drop or two. (On Avery’s own argument the “hospital blood” is ruled out as the source of the stain in the car. He said it was blood from his finger after it re-bled.)

Therefore, reader, in the meantime, be careful what you simply believe. Don’t be gullible and be careful to be duped. The fact that a lot of things are said in a one-sided TV documentary, albeit on the mighty Netflix, does not make it true. And yes, the series is one-sided – if it was not, they would not have featured only Kathleen Kellner’s experts; they would have consulted with other experts as well. Otherwise, if it was supposed to be about Zellner and her theories, they could have called it ‘The Zellner Diaries’, or something like that. Even the suggestive name ‘Making a Murderer’ implies it as a fact that Avery was made into a murderer.

When you explore a case like this, you consult wider. Netflix has the resources to do a properly balanced series, but at the moment it seems like they simply want to milk this hopscotching narrative. Why Zellner’s word on this must be seen as the final answer and premise of this series, is actually plain strange.

It is one thing to flaunt “facts” around in a documentary – it is something completely different to defend them in a court of law, under cross-examination. So far I have seen nothing from the Zellner camp that would stand up in court, even under below-par cross-examination.

Zellner may have noble intentions but that does not make her approach or assertions right. The mere fact that she did not even consider that Avery may have opened the vehicle’s door with his left-hand shows us that her investigation cannot be trusted one bit. To use her own words, “If you find one lie like this, …”

Zellner made up her mind, decided on the end-point, and is doing everything in her power to selectively shape and fit the path to the end-point that she had decided upon.

Also by Thomas Mollett:

Essay on Familial Searches

On the Removal of Blood and DNA from Surfaces and Objects

The Chris Watts Case: Opinion on the Toxicology

Covid: Too much too late

The Oscar Pistorius Case – Some key points

The Shrien Dewani Case – Some key points

Opinion on the Michael Peterson and Elisa Lam cases (and respective videos exclusively on MurderUncut.com) to follow on this website soon.

Free Full-length HD TV MurderUncut Video on the triple murder Van Breda case.

Murder Uncut

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