8.Defense Closing Argument by Jerome Buting (Part 1)

MR. BUTING: Thank you, Judge. Good afternoon, ladies and gentlemen. This is the first time I have actually had a chance to talk to you. I have sort of been talking at you as we walk by the witnesses for 6, 5 weeks, whatever. And I'm really -- I feel honored and privileged to do so, just as I am honored and privileged to defend Mr. Steven Avery here, in this very, very serious case.

Let me make one thing very clear, right here at the outset. We do not and have never claimed that the police killed Teresa Halbach. But in that respect they have that in common with Steven Avery. However, the person or persons who did kill Teresa, knew exactly who the police would really want to blame for this crime.

And they were aided in that respect, by widespread media publicity as early as Friday morning, November 4th, the very morning after the day she was first reported. Widespread publicity that identified Mr. Steven Avery as one of the last people known to have seen her. And because of who he is, that drew even more media attention than perhaps it might other wise have. And the focus was on Mr. Avery, rather than one of the other customers that she saw that day.

And this was the very same Steven Avery who was suing the Manitowoc County and the Sheriff's Department, with a lawsuit asking for a whole lot of money, for the wrongful conviction and all the years in prison that he spent, from a 1985 wrongful conviction.

I believe that when the Manitowoc officers saw this, they very badly wanted to believe that he was guilty and that this was their way out. And that from that point forward, that they had this investigative bias, focused on Steven Avery, that was, then, skillfully exploited by the real perpetrator of this crime.

Now, from the very beginning, Steven Avery has proclaimed his innocence in this case. He told that -- everybody that had a camera, anybody who talked to him, that he was not guilty, and that he was being framed. That the police planted his blood.

And I want you to think for just a moment how difficult a situation you would be in if that had occurred to you. How, after all of this evidence comes out, and police, who better than anyone else would know how to plant evidence, how you would get back the presumption of innocence. How do you go about trying to get the community, and ultimately a jury such as you, to believe in our system of justice, to believe that in America you are presumed innocent, unless the State, which has the entire burden of proof, can prove you guilty, beyond a reasonable doubt.

What would you do? Remember, this morning and five weeks ago, you promised that you would do that, despite all of the pre-trial publicity you may have been exposed to and may or may not have retained. You promised each of us and the Court, and the Judge instructed you today, that you must presume Mr. Avery innocent, and that you must hold the State to the burden of proof, beyond a reasonable doubt. We will talk a little bit more about that later, but I want you to keep that in mind. Because as you go through this evidence, you have to apply that, because that is your sworn duty.

Now, we have offered a theory of defense. And that's what it is, it's a theory. Because if someone frames you, you are obviously not there to see how, exactly, it happened; where, how, when, the kinds of things that Mr. Kratz is going to argue we haven't presented. There is no videotape showing how this was done. There's no cop who, in a Perry Mason moment, breaks down on the witness stand and says, yes, I did it, I did it, you got me. This is real life, that doesn't happen.

You are entitled to reasonable inferences, however, and we're entitled to the inferences that can be drawn from circumstantial evidence, just as much as they are. And so you ask yourself, what would it look like, what would it look like, what would a case look like if somebody was being framed.

And we're going to do that for a little bit now. And I think when you do, you are going to see that it would look a lot like this case. You would look first and you would see, well, what about the lack of evidence, in areas that you would expect there to be evidence. And, then, you would look at the areas where there appears to be evidence linking the person to the crime and ask yourself why does all of that evidence appear suspicious or unreliable. And we're going to go back and forth on that a little bit, but those are the two main areas I want to talk about first. Evidence that's not there, that should be. And evidence that is there that appears suspicious or unexplained. And let me turn to that first.

In fact, let me turn to what probably is, at least on its face, the most damning piece of evidence in this case, and that is, Teresa Halbach's remains, found in the burn pit, outside Mr. Avery's garage, trailer, whatever.

We'll look at the -- what the evidence shows first. We know that not all of her remains have ever been found. I believe Dr. Eisenberg said only 40 percent of her skeletal remains. We're not talking the rest, obviously, that you would expect might be gone, but skeletal remains, only 40 percent. Not because the other 60 percent gets burned up. No expert has ever came into this court and said fire would consume bone completely.

What fire does, according to these experts, is it goes through these phases of charred to ultimately calcined -- calcinated, I believe the word was. Sixty percent of it is missing. All right. That's -- That's peculiar to begin with. But, then --

Well, before I move off that, there's something else that's missing and that is, Mr. Kratz points out, well, the jeans, we found these rivets in this pair of jeans here. But they only found five of six, assuming that these are the same jeans, and these are just a representative example. But what did they not find, the biggest item of all, the button that closes the waist.

They have got magnets they are using through all this dirt. They are the sifting through every thing and they don't find this button anywhere. They don't find her house keys anywhere, her work keys anywhere. They find one single key, which we'll certainly talk about.

But most importantly, all the experts agree, these bones were moved. And I have got to tell you, we have been here, now, for five weeks and we have still not heard any explanation from this side about how that happens.

In fact, we haven't heard any explanation about a lot of things. We have heard manner and cause of death, but that's not really how Teresa Halbach was killed, or even where Teresa Halbach was killed.

Unfortunately, from my standpoint on this point anyway, the State gets to go last. This is called sandbagging. This is where we don't get to respond to the theory or the argument that they have been harboring all this time and haven't told you folks either. So they are going to get up here after Mr. Strang and I are done and they are going to say, hey, this is the explanation, take our word for it. And we don't -- of course, don't have a chance to respond.

Well, I'm going to trust that between the 12 of you, ultimately 12, you will be able to answer those questions that they raise. You will be able to pick apart, as well as I can, whatever theory they come up with, because we have not heard any yet.

The bones were moved. The question is, were they moved to Mr. Avery's burn pit, or were they moved from Mr. Avery's burn pit. The State would have you believe that the original site of burning was the burn pit, behind his garage. But they have offered no explanation for why bones, human bones, would be found in the Janda burn barrel, some 150 feet, or whatever it is, away, in the other yard.

And Dr. Eisenberg told you -- By the way -- I can't believe I forgot this -- there's a third site. There's actually three different sites where human, or possible suspected human bones were found. Clearly identified human bones were found in the burn pit. And clearly undisputed human bones were found in the burn barrel.

But there's also this mysterious quarry site, a quarter mile or so away that -- You will have to forgive me, but I'm not as technologically savvy as Mr. Kratz, and so we're going to be using the ELMO instead of a laptop. But this is -- this is the map that was shown to you. This is the diagram that was created by Mr. Austin, with the assistance of Dr. Eisenberg.

This flag down here, is the third site, where pelvic bones were found, according to Dr. Eisenberg. They were sent to the FBI to do mito-typing (phonetic). We did a stipulation that nothing could be determined from them. But what she said was, all three locations where bones were found, or possible human bones in the case of the quarry, were all burned to the same degree, same amount of calcination. So there is a similarity here that continues forward through all of them. And, very important, no evidence of more than one body. I don't even know if there are other bodies missing in Manitowoc County, or people missing, but in this instance, Dr. Eisenberg concluded, and Dr. Fairgrieve agreed, no evidence of more than one body. So we have got these bones in three different locations.

Now, curiously, you have never seen a photograph of what this site looks like, or what the bones looked like, and neither have I. And neither has, I assume, any of the prosecution team because, for some curious reason, no photographs were taken of that site.

The method of recovery in this case was not skillfully done, as Mr. Kratz tried to argue, by these experienced arson experts. This investigation needed a forensic anthropologist to be called to that scene, before anything was touched. And Dr. Fairgrieve explained why.

Dr. Eisenberg admitted that by the time she got the bones, she was unable to determine some important information about its location, how it was sited. And not only was nobody called to the scene, but no photographs.

Have you seen one photograph of any of those bones in the burn pit, in this location, before it's picked up? One photograph? No, you see boxes of bones, tables where they are thrown out. You don't see them in their site. And Dr. Fairgrieve explained to you why that's important, especially important, if you're going to try and answer the question of, was that the burn site.

Dr. Fairgrieve is probably the expert in the world, or at least in this North America, on the forensic identification and interpretation of cremains, much more experienced than Dr. Eisenberg in this area. I don't have a problem with Dr. Eisenberg; she's a fine person, and a fine anthropologist.

But Dr. Fairgrieve has much more experience in the field, dealing with cremains. He's written a book that's coming out soon. He's worked for the Crown all of his life. This is the first case he's ever testified for the defense. So this is not some paid defense expert that we have just brought in here to try and -- try and do a smoke screen or something.

This is a world renown expert. And what he says is, he's had a lot of cases, or he's been called in and that very question has been presented, the bones were moved, where is the original site. Was it over here, or was it where the bones were found.

Dr. Eisenberg says, you have to listen carefully to her opinion, she concluded -- First of all, she could not rule out other possible burn sites, but her opinion was that it was most likely the original site was behind the garage. And that was based on the fact that most of the bones that were recovered were found in that location, that she would have expected more breakage, and that she found a lot of small delicate type of bones in that area, and so, therefore, she concludes this must be where the burn took place.

But Dr. Fairgrieve told you, that from his own case experience, real world case experiences, he has found the tiniest bones in the human body, the little bones in your middle ear. He has found those moved into the secondary site, not at the original burn site.

And he told you something else that, frankly, just makes common sense. In his experience, where the majority of the bones are found, that's the location where the bones were moved to. Why? Why does that make common sense? Because if you're -- if for whatever reason you are trying to disguise the original site where the burn took place, and you are going to plant them, or put them some place else, of course you are going to move as many of them as you can to the second location. That makes common sense. It would make perfect sense. And it fits with Dr. Fairgrieve's own real case experience.

The other thing Dr. Fairgrieve said is that, had an expert been called to the scene, a real forensic anthropologist, you can determine things about that. I believe he talked about a case where he was able to tell that this was the first, the original spot of burning, because there was some anatomically connected bones. Even though burned, they are close together, anatomically, so you can tell that's where they were burned. If you moved them, they would fall apart and they would be rearranged.

Unfortunately, Dr. Fairgrieve, again, he didn't go out on a limb. He said, I cannot tell you for certain, where the original burn site is, nobody can, because of the collection effort. And I'm not faulting these officers, there's nothing deliberate going on here. They probably never encountered a case like this before. And what they should have probably done is just put a tarp over it. Instead, Agent Sturdivant recalls -- I think it took five hours before Mr. Ertl to come to the scene. And it's already starting to get towards dark, 3:00, 3:30 or something. So they're hurriedly trying to get as much as they can, working up to dark, until it gets too dark, without light.

It's not that they deliberately destroyed the evidence at the scene, but by moving it without the kind of knowledge -- Well, you have seen archaeologists on TV and in movies, you know how they do it, how they move very carefully with brushes. They want to make sure that they can determine exactly where the location of these bones are. Because, if they are not in any kind of anatomical connection, that tells you something.

So, Dr. Fairgrieve -- I'm sorry -- Dr. Eisenberg tells us that these bones were found in the burn barrel. Zoom in first so you can read the top. This is Exhibit 401. Evidence Tag 7964, she told you was bones recovered from one of the four Janda burn barrels that were located.

She finds long bone shafts, metacarpal fragments, vertebral -- vertebral fragments, and a scapula fragment. And the helpful little diagram here describes where you would find these in your body. Now, obviously these are scattered all over ones skeleton. It's not like somebody dismembers an arm and burns that in the burn barrel and you would expect to find only those items. These were scattered and we'll talk about why in just one second.

I think this was -- This is Exhibit 402, the pelvic bones that were found in the quarry. Now, again, possible, I'm not going to overstate here. She was not conclusively able to determine that they were human, but they were all burned to the same degree. And she certainly could not rule it out.

What explanation is there for finding scattered bones of Teresa Halbach in the burn barrel and in the burn pit. I'm going to propose one possible theory, there could be others. You may come up with others on your own. But I want to show you, first, one of the instructions the judge read you that's in your packet.

Focusing here on the reasonable hypothesis. If you can reconcile the evidence upon any reasonable hypothesis, consistent with the defendant's innocence, you should do so and return a verdict of not guilty.

I suggest that a reasonable hypothesis is that somebody else burned Teresa Halbach's body elsewhere, maybe in the quarry, maybe somewhere else. And then they used that burn barrel that was found on the Janda's property as a container to transport the remains, as many as they could scoop in, to Mr. Avery's backyard.

And they dump it in the burn pit, or scatter it about, whichever, think that they've got it all, turn it back over. And think about how heavy these burn barrels are, you are not going to be able to lift them up and turn them upside down as easily as you would be tipping them over. And they inadvertently leave a few behind. This is most likely happening in the dark.

And the barrel gets, then, placed over on the Janda property, along with the other three that were there, and so there's four barrels found. That explains why there's scattered bones from all over, skeleton, found in the barrel. Explains why most of them are there in Mr. Avery's. And explains why any would be found in the burn barrel at all.

If Mr. Avery wanted to get rid of the bones, from his burn area, he would not put a scattered few in someone else's burn barrel and leave all the rest behind. That's not making sense. It doesn't make sense. No one would do that.

One other little interesting bit of testimony that almost slid by me, actually, was Mr. Dassey, Bobby Dassey's testimony. Sometimes the truth comes out in little dribs and drabs when people aren't expecting it. And on direct examination, as Mr. Kratz, I believe it was, was trying to lead Mr. Dassey through a number of photographs.

He asks him about the burn barrels that your mom has out back. And Bobby says, we have three. And then they try to correct him, and he's like, I thought we had three. And yet four are found on November 5th.

Where did that fourth one come from? I submit it was the transport item used, perhaps picked up, used to transport the bones and then placed over where the others would -- where the others were. Let me tell you something about who another possible suspect is. It may not, but it's a reasonable hypothesis to explain the bones the way they are. Now, when you realize -- The reason I'm spending some time on this, is when you realize that this is what may have happened here, then you realize why it's so important.

Because if that body was burned elsewhere and then moved and dumped on Mr. Avery's burn pit, then Steven Avery is not guilty, plain and simple. Because no one would burn a body somewhere else and then move the remains and dump them in your own backyard. No one would do that.

Now, that's why the State has gone to such trouble avoiding the fact that the bones were moved, that's why you heard nothing about it here. Because it does not fit with their theory that Avery is guilty. They know that if you come to believe that there is reasonable doubt about whether those bones were moved to Mr. Avery's backyard, then you are going to find him not guilty.

You have to find him not guilty. Even if, in the end, you aren't completely satisfied how it occurred. Because although we offer you a theory of defense, that does not mean that we take on the burden of proof. The State has the burden of proof. They have to answer the questions that come to your mind, beyond a reasonable doubt.

If someone is framed, they are not going to be there. They are not going to see how exactly it is done, but this is consistent with the evidence, I submit.

Now, let's turn from the evidence that appears to be incriminating, but is suspicious. Let me turn for a moment to some of the evidence that is lacking, that you would expect to find, if Mr. Avery was really guilty.

There was blood identified in the RAV4, that is, Mr. Avery's. And I don't know why, frankly, we went through this exercise in statistics in figuring out what a billion means, when we're not, we've never challenged that. We don't challenge that -- whether his profile -- when they come in and they say this is his blood, this is not his blood, or whatever, there is no dispute on that.

The question is, how did that blood get there. And as you think, again, what a case would look like if someone is framed, this is very important as well. Because in the RAV4, they find five, ultimately six stains, I believe, which they theorize must have come from an actively bleeding person, which means, the person was not wearing gloves, and yet, they find no fingerprints.

Why, because fingerprints are very difficult to plant. Can't say it's never been done, but it's extremely difficult to plant someone's fingerprints. Much easier to plant someone's blood, if you can get ahold of some. So that right there is peculiar.

Now, is it because he wiped off his fingerprints, took the time to wipe off all his fingerprints, but missed the blood. Come on, that doesn't make sense at all. Besides, we know that there are eight unidentified fingerprints, at this moment, that were found on that vehicle, including some very incriminating locations.

I went through it with Mr. Riddle. Right on the back rear cargo door of the RAV4 -- which of course I don't have -- right where you would expect, if somebody is opening that door to put a body in, they are going to find your fingerprints, if you're not wearing gloves. And if you're bleeding you're not wearing gloves. You can't be. You can't have it both ways.

I would also point out, Dr. -- Mr. Riddle, I asked him, well, you took the fingerprint standards of Lieutenant Lenk and Sergeant Colborn. You know what the defense here is. You know what we have been accusing them of for the last month or more. Did they ask you to compare these unidentified latents that were found on Teresa Halbach's vehicle with Sergeant Colborn or Lieutenant Lenk's standards, to see if you could rule them out, or match. The answer, no. Why, because they don't want you to know.

You cannot open this vehicle without touching that latch. And this is where he said he found them, the fingerprints. There, there, and there. Riddle also found them on the hood. Isn't that interesting. He says the lifting up of the hood has been a big part of the State's case. No one has compared those to Lenk and Colborn.

The other thing that's kind of curious is that no one at the scene sees any blood in the vehicle. Granted it's -- part of the windows are tinted, and it's -- but it's not dark. This vehicle was found at 10:30, 11:00 a.m. in the morning, on a Saturday. And I believe Mr. -- or Special Agent Fassbender, I believe he was the one, that says he came with his flashlight. Maybe that was Ertl. Was looking 5 or 10 minutes inside that vehicle and didn't see any blood. Now, maybe you won't see the blood on the black CD case, but if indeed the vehicle is locked, you might want to be looking inside to see if there's a key, wouldn't you think.

You are going to be shining your flashlight right there to see if maybe the key is in the ignition, no one sees this rather peculiar looking bloodstain that looks sort of like you might get if you take a Q-tip and dab it. Doesn't look consistent with the State's theory, as I understand it.

And then you look at maybe the most obvious lack of evidence. And that is the complete lack of any blood or DNA of Teresa Halbach anywhere inside Mr. Avery's entire trailer and you heard what the police did with that trailer. They peeled off the paneling, they ripped up the carpeting.

You heard Mr. Ertl talk about how in one instance he was familiar with, the suspect had cleaned up the carpet with carpet cleaner and it wasn't noticeable. When they peeled the carpet back, it had soaked through to the pad. Well, the police were at least smart enough to look for that.

Here no blood on that pad. No blood on the carpet. No bloody bedding. Admittedly, you could burn the bedding, sure. You could get rid of the bedding. But no blood on the mattress. And there's no evidence that there was any change in the mattress. And there's no evidence that any mattress or box springs or any of that was burned.

No blood spatter on the walls or the ceiling. No bloody trail of a body being carried out of that bedroom into the garage or into the burn pit. Nothing on the carpet. Nothing on the back stoop, the deck, anywhere. No scratches on the headboard. No rope fibers on the headboard. Nothing that would indicate somebody restrained, struggling for their life, was murdered in that bedroom.

Why am I telling you this? The State is now saying he was -- I believe they are trying to argue that she was killed in the garage, although that's still not clear either. Why do I care about the bedroom, because the Judge has told you that you bring your common experiences too, you can rely on those common experiences. And one of the common experiences that you have all, unfortunately, been exposed to, was the pre-trial publicity in this case.