Looking at Making A Murderer and the Steven Avery Case

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                  Indianapolis Criminal Defense Attorney Blog:  Making A Murderer a Look at the Case from a Former Deputy Prosecutor Turned Defense Attorney
Today our blog takes a look at the hugely popular Making a Murderer documentary film that has become a huge hit on Netflix.  This blog is being written by Banks & Brower part-owner Brad Banks.  Brad Banks spent nearly 10 years as a deputy prosecutor including 2 years assigned to the homicide unit of the Indianapolis Prosecutor’s office, he has tried 11 homicide cases to jury.  As of the date of this blog Mr. Banks has been working as a criminal defense attorney for little over three years.
In my capacity as a criminal law attorney, I have been asked by numerous friends and family what my take was on Making a Murderer and the now infamous Steven Avery case.  This blog will be written by breaking down several key components of the investigation and the trial.

  1. James Lenk and Sgt. Andrew Colborn:  I start with these two as this is where the crux of the problem with this case ends up.  It is preposterous that the Manitowoc County Prosecutor’s office proclaimed a conflict of interest in Manitowoc handling the investigation of this homicide due to the civil suit maintained by Avery only to have Lt. Lenk and Sgt. Colborn play an enormous part in the investigation of this homicide.  Once there was a conflict of interest determined to have been in place, these two members of the Manitowoc Sheriff’s Department should have been nowhere near this criminal investigation.  No one from the Manitowoc County Sheriff’s office should have been involved at all, let alone two individuals directly involved in the civil case.  It is inappropriate and a complete malfeasance that these two were allowed to be involved in the investigation.  They should not have been at the crime scene (supervised or not) and they should certainly not have been looking for evidence.
  2. Tampering with Avery’s Prior Blood Sample in the Evidence Room: It was a breathtaking moment in the documentary when it was found that Avery’s blood sample had been tampered with after the rape trial but before the arrest on the murder case.  The chain of custody showed that Lt. Lenk had inexplicably accessed the blood in the evidence locker and that there was what appeared to be a syringe type hole in the top of the blood vile.  First, it is important to note that evidence rooms are to be highly secured and highly limited in their access.  There should be no reason any evidence should be touched without there being a very good reason as to why and that reason being well documented.  It would be HIGHLY unusual for a lieutenant to access a vial of blood on an already closed case.  There really isn’t any explanation for this that I can think of.  This is quite possibly the most perplexing unexplained piece of evidence.  The blood being accessed for purposes of framing Avery is an explanation, it is hard to think of another.  So what about the FBI agent that said the preservative EDTA was not found in the samples recovered from the crime scene, therefore, Avery’s blood could not have come from the blood tube in the evidence room?  I researched the issue of the admission of the FBI agent’s testimony and the test for the presence of EDTA in recovered evidence and it is highly controversial.  There are many examples of similar types of testing being found to be too unreliable to be admitted into evidence.  For example, lie detector test results and results of portable breath tests are both generally reliable, but they are too unreliable to be used in a court of law.  The EDTA science seems to be very controversial in its acceptability in the scientific community, and therefore it is questionable as to whether it should have been allowed into the trial at all.
  3. Teresa Halbach’s Key Found in Avery’s bedroom: This is a huge piece of evidence for the state.  The dead victim’s key is found in the defendant’s bedroom.  EXCEPT law enforcement had previously searched this bedroom numerous times and not until Lt. Lenk arrived on the scene was the key found.  Again, as mentioned earlier, Lt. Lenk shouldn’t have been on the property, let alone in the room where part of the crime was alleged to have occurred.  It is very difficult to believe that this evidence was simply overlooked by numerous other members of law enforcement and then low and behold Lt. Lenk finds it.  Not only does he find it, but Avery’s DNA is present on it.  In my experience, finding DNA on a victims key of a suspect under normal circumstances would be highly unlikely.
  4. DNA Found on the Bullet but Missing from the Garage: Again, DNA is very unstable under extreme conditions.  A bullet is put through extreme conditions and it is very rare to have recoverable DNA on a spent bullet found outside of the body.  Additionally, the DNA expert tested that the control sample was compromised and therefore the tests would normally be considered invalid, but because the DNA sample was completely consumed, they decided to make an exception and report the result regardless of the error in the testing.  Scientific laboratories operate under strict guidelines and procedures which should be followed to the letter.  The decision to ignore protocol and report a result despite of a known compromise in the testing would be questionable at best in a normal homicide trial, let alone one where the theory is that the defendant is being framed and that evidence is being tampered with.  A judge could have very easily ruled this evidence as inadmissible and it would likely have been upheld by the appellate courts.  Second, those of us who have dealt with homicide cases that are the result of a gunshot wound to the head know what a messy scene that is left behind.  If the victim was shot in the head in a very discombobulated garage it is pretty shocking that DNA evidence of the victim was not found in numerous places within the garage.
  5. DNA Found in the Victim’s Vehicle: Avery’s DNA found in the victim’s vehicle is again something that looks like a smoking gun.  Except, LT. Lenk who had access to Avery’s blood signs out of the crime scene where the car was found.  Again, what in the world was Lenk doing at the car crime scene?  Why didn’t someone stop him from being there.  Lastly, why is he singed out of the car crime scene but never signed into it.  Horribly sloppy police work at its best, terrifyingly corrupt at its worst.
  6. Evidence that the Skeletal Remains had been Moved: This was the evidence I found the most interesting.  It is just simply strange that the majority of the decedent’s remains were in the fire pit, but that portions of the remains were found at two other locations.  This evidence is intriguing and at least raises questions as to where the murder scene really occurred.  Hard to explain this part of the evidence from either side of this case.
  7. Ken Kratz: In all fairness to Ken Kratz, he seemed to really do what any good prosecutor would do.  I don’t think you can fault him for defending and standing behind law enforcement and their work.  His job is to present the State’s case and to seek justice, you can’t expect a prosecutor to agree that the “fix” was in for Mr. Avery.  If there is any fault of Mr. Kratz is that he could have kept the trial in the courtroom instead of in the media.  The prosecutor has an ethical obligation to avoid poisoning potential jury pools, the press conference that described the allegations as supposedly confessed by Brendan Dassey probably should have been avoided.  Otherwise, it appeared that Mr. Kratz did his job and did it well.
  8. Avery’s Defense Team: Dean Strang and Jerome Buting should be commended for taking on the state in this case.  It is uncontroverted by all involved that members of law enforcement that had been previously deemed to have a conflict, played a substantial role in the investigation of the homicide that led to the re-arrest of Avery.  These two attorneys took the police to task and pointed out the at minimum major flaws in the investigation and at worst corruption and framing of Avery.  This case demonstrates why the criminal defense attorney is such an important part of the criminal justice system.
  9. Brendan Dassey’s “Confession”: You know a confession is troubling when the prosecutor decided to not even use it against Avery(kudos to Katz for that decision).  The one thing that the documentary did a good job of is demonstrating how coercive criminal interrogation is allowed to be.  Detectives can lie, misdirect, and state that they have evidence they don’t in fact have all in the name of eliciting a confession.  The thought process being that regardless of what is told to someone, they won’t confess to something unless they did it.  There is lots of debate over the accuracy of that though process.  However, a mentally handicapped juvenile definitely is not your typical criminal suspect and is definitely more susceptible to coercion and outside influences.  In having watched and listened to Dassey’s multiple statements, it is hard to place much stake in them at all either way.
  10. Dassey’s First Attorney and Investigator: One word, TERRIBLE.  Len Kaschinsky(Dassey’s first lawyer) and Michael O’Kelly(Dassey’s investigator) were simply reprehensible in their actions.  Kaschinsky is under an ethical obligation to defend his client with zealous advocacy.  What does he do, he talks to the media about the possibility of his client cooperating with the state prior to even speaking with his client and then he lets his client be interviewed by a detective without being with his client.  This is a juvenile with a mental disability.  How on earth could an attorney allow any client to meet with investigators about a homicide they are being investigated for without being there with them?  Not only does the attorney allow his client to be interrogated without being present, he then sends his investigator to coerce his client into a more detailed confession again without being present.  The actions of Kachinsky were simply deplorable.  It was atrocious to see the complete lack of representation offered to Brendan Dassey in the early stages of this case.  His confession to the investigator that was supposed to be on his side and his attorney failing to represent him could have and probably should have resulted in his later confessions and the picture he drew from being allowed into evidence.  Brendan’s case has a chance to still be looked at in the federal courts.  It is hard to imagine a representation of a client being less effective than what Kaschinsky offered to Dassey.

In conclusion, our justice system is built on the principle that a person is presumed innocent until proven guilty.  In the Avery murder case, it is chalked full of possible police corruption.  From the finding of the key to the inexplicable invasion into the previously acquired blood sample of Mr. Avery from the rape case.  Lt. Lenk’s involvement in the case is just difficult to understand and explain.  In a system that is designed to allow a guilty man go free before sending and innocent man to jail, I believe Mr. Avery should have been not guilty.  There is reasonable doubt as to all of the crucial pieces of evidence plain in simple.  Did he do it?  Who knows, probably never will.  Did the evidence prove him guilty beyond a reasonable doubt, not in my opinion.
Banks & Brower, LLC is a Indianapolis based Criminal Defense and Family Law firm with its main office in Indianapolis and satellite office in Noblesville.  To reach the attorneys at Banks & Brower contact them at 317-870-0019.