10.Defense Closing Argument by Jerome Buting (Part 2)

MR. BUTING: All right. Where were we. What I think this case is, is a good example of why it is so important that people not leap to quick judgments about a case, maybe decide something that's based -- that's not based on the evidence you hear in court. You promised, and I'm confident you all will decide this case based only on the evidence you have heard in court, and this case is a good example why.

Let's look at what else evidence -- what other evidence is lacking. Now, if the State's theory is that she was shot in the garage, where is her blood? None of her blood is found in that garage.

We have heard testimony about high velocity blood spatter that comes when someone is shot from a bullet. There's none on the floor. Maybe even more important, there's none on any of all that -- any of that clutter that you saw. When it's high velocity spatter, it can go anywhere.

How would Mr. Avery be able to clean up everything, not just on a floor, but every little item. Because, remember, at least in March, they picked up and handled every single, and examined every piece of evidence. Every cooler, every box, every can, every piece of junk that we all have in our garage, they looked at. And that's where you would expect to find spatter that no one would be able to clean up, even if they tried to clean up.

Now, is there evidence that he did clean up at all? Well, his blood was found in the garage. Why is that? If he's cleaning up, how is it that his blood is found there. Is he able to see a blood spot and say, oh, that's Teresa Halbach's blood. Oh, that's mine, I can leave mine, I will just clean up hers. Come on.

They have you believe that -- I'm assuming he's going to get up here and say, this is what happened because, of course, we haven't heard it yet, that the bottle of bleach is so incriminating. I don't know anybody who doesn't have a bottle of a bleach somewhere in their house. And an important part is, it was in his house. They say it's in his bathroom, what they didn't tell you until I got up and cross-examined them, is that the bathroom is the laundry room. So even there they try and mislead you into thinking something means more than it does. A bottle of bleach found in ones laundry room means nothing. And it means nothing in this case.

And, by the way, if the theory is that there's no blood of Teresa Halbach anywhere on the floor of that garage, is that because he is such a good cleaner, then why are there 10, 11 .22 shells laying all over the floor right in the open. Don't you think if they are going to go to the trouble of cleaning up the blood, after you kill somebody, that maybe you might pick up the shells that are right out there in plain view for the police to find. Don't you think that would be what you would do?

So those are some examples of the kind of evidence, that if someone is being framed, you might expect to find -- you might expect to find lacking, because it doesn't fit with the reality of what would have happened if the crime actually occurred as the State apparently alleges.

We talked about one piece of incriminating evidence and how that looked suspicious. Let's look at maybe the biggest, most glaring suspicious piece of evidence in this case. The magic key, Exhibit A, in this theory that the police planted evidence in this case.

Because if you believe that those police officers put that key in his room, that they are capable of planting that kind of evidence to try and link him, then why not plant -- why couldn't they have also planted blood. If they go to that extent that they -- that they plant Teresa Halbach's key in his bedroom to try and convict him, then that's it, it's over, case over, because you can't rely on anything else they have given you.

Now, let's look at this key. First of all, why would he bring the key in his house and put it in his own bedroom. Why would you do that? If you still got the vehicle, and you still wanted somehow to use the key, to drive it some place -- by the way, why would you want to disconnect the battery, if you're still going to use the key? What good does the key do if the battery is disconnected? So that's a disconnect, no pun intended here. But why wouldn't you just leave the key in the car? Why wouldn't you hide the key under the -- neath the car, or somewhere where you know it is? Why would you bring an incriminating item like that into your own bedroom, especially since you know, as of November 3rd, when Sergeant Colborn comes to visit him, and November 4th, when Lieutenant Lenk and Detective Remiker come to visit him and all the television cameras are there, that you are a person of interest, right? You are not going to put the key in your bedroom. Doesn't make sense.

And, then, the key is not found until the 7th search of that trailer. You already had four grown men in that little trailer. I'm sorry, in that little bedroom they had four men, for three hours, on Saturday night, November 5th. And they come in here and they try to tell you that's not really a thorough search. Three hours in a little bedroom with four men, is not enough time to do a thorough search? Who are they trying to kid here.

And, then, it's not until November 8th, when they have been in the bedroom, again, with three men: Lenk, and Colborn, and Kucharski, it's another hour or more before they find it then. There's a common theme, by the way, that we've been hearing in this case, whenever something is mysteriously found much, much later when it should have been, but earlier searches didn't count, those were just cursory searches, three hours cursory searches.

This computer rendering of the bedroom is helpful just to show you how small this bedroom is. How long does it take four men to go through a closet, a dresser that's over here, a desk and a bookcase, or World War II record album holder, whatever it is. Seven entries.

Now, I submit that the reason it wasn't found in the first entry is because there was a watchdog along, Sergeant Tyson. The one thing that they did was, they say it's okay to use these Manitowoc officers for searches because we're going to have a Calumet person there with them to make sure nothing goes wrong.

Sergeant Tyson admitted he had never been in a situation before where he had been told to keep an eye on those guys, your fellow cops, keep an eye on them. What are you doing putting those three men into the person of interest, he's a suspect in their eyes, what are you doing putting three cops who have that kind of potential conflict in that person's bedroom, that you need to have another officer from another agency watching over them, babysitting them. That is absurd.

Lenk and Colborn volunteered for that duty and they volunteered for a reason. But in the first search Sergeant Tyson did his job. I believe it when he says that he watched them. He looked like a watchdog. He was watching them like a hawk and he wasn't searching. That's important too. They were doing the searching and he was just doing the collecting. So the opportunity wasn't there for Lenk or Colborn to plant the key.

And then they are in there again, very briefly the next day, again, with Tyson. Note that each entry they are -- they are -- each time they go in there, they were with Tyson, except for November 8th and they go in with Deputy Kucharski, who tried to make light of it by saying that, you know, the possibility of planting is about as likely as aliens coming down and planting it.

But he had to admit, he was not told to watch those officers. He was there with Lenk and Colborn. He's told to search and that's what he's doing, he's doing his job. And he's sitting on the bed, after one hour. In fact, I think he said he was getting almost done and took off his gloves. He's sitting here, going through this drawer.

Lieutenant Lenk is right here with his back to him, like this, crouched down on the floor, so he's not going see what's going on. Lenk gets up, walks out the door, comes back in a minute later, oh, my gosh, look at that, there's a key. Low and behold, it's in plain view.

And so they come up with this theory, this absolutely preposterous theory on how this magic key, that no one ever finds before, suddenly appears in plain view, out of this bookcase. They find it right there, where those slippers are. Right like that. And how does it happen, well, they decide, maybe they help the back of this cabinet a little bit, but they decide that somehow this key must be secreted in this cabinet, by Mr. Avery, in his own bedroom, with everybody looking at him, and that it somehow magically fell out this -- this gap, bounces off the wall. And by the way, we're talking about key, fob, and plastic clip. Somehow bounces off the wall, turns around the corner and lands, what is it 90 degrees from where it should be, where it would have fallen.

Now, here is something else. I want you to contrast what the State -- what kind of evidence the State has given you. In this case, we have been presented with a wooden gun rack, as an Exhibit No. 196. This has really been important in this case, hasn't it, this wooden gun rack. It's meaningless. They have got -- And we have a got a photograph of it too. We have the real thing and the photograph. What do you need this for? Why do need this for? Why is this in evidence. This is totally irrelevant. They have pictures to show the guns are on the wall, okay.

We have got a photograph of an empty box. And we have got the box right here. We have got a photograph of another empty box, and we have got the empty box here too. What did they give you on this bookcase, that, a photograph. Where is the bookcase? Where is the bookcase? Don't you think that's a little more important in this case than that wooden gun rack.

They don't want you experimenting with that bookcase and this key, because they know you will see that it is incredibly improbable that this key is going to find it's way out, the key, the ring, the cloth fob, the plastic clip, and not get hung up on anything. It's going to bounce around like they say it will. So you ask yourself why you haven't seen that, right there in the property room. Nice picture of it.

MR. BUTING: While we're at it, while we're talking about candor with the jury, I don't know if you recall, but I do, in the opening statements, these nice PowerPoint presentations that Mr. Kratz has prepared, one of them he puts up there in his opening statement and he shows this tailgate. Puts up a nice PowerPoint slide showing the rear of the vehicle like this.

And he's going through where Mr. Avery's blood, DNA, was found on Teresa Halbach's vehicle. And he's got one of his nice slick arrows pointing right here with a circle. I see that and I think, my gosh, I have been working on this case for months, did I miss that; how could I miss that the client's blood is supposedly on the back tailgate. Well, when I looked more carefully, and as we heard from Sherry Culhane, he was wrong. There was no blood of Mr. Avery ever found on the rear of that vehicle on the tailgate. Now, Mr. Kratz is human, we all make mistakes; I have certainly made plenty here. But that's a pretty big mistake.

The key, also, by the way, has no blood. Remember, she swabbed it and the stains were clean and it only has his DNA. And, frankly, counsel misspoke when he said, it's always the last person -- when you are talking about trace DNA from the fingers, it's always the last person that touches it that's going to be on there, not what the testimony was as I recall it. Testimony was, the last person may have more of it, but you are going to find a multiple, most likely, at least two people. Particularly when it's an item like a key that someone handles every day and deposits their own DNA on.

And, finally, before we take a break here, the source of Mr. Avery's DNA in his house is plentiful. Toothbrushes, razors, all kind of personal items in ones home, if Mr. Lenk and Mr. Colborn wanted to put Mr. Avery's DNA on that key, that was easily available. It doesn't have Mr. Avery's fingerprints on the key; doesn't have any of Teresa Halbach's DNA on the key.

Keep in mind, also, when you think about the evidence that's lacking and evidence that's suspicious, you came into this case, and as I recall seeing up there on the PowerPoint slides, there were four charges, now there's three. Think about that, while we take our break. Is this okay, your Honor?

MR. BUTING: Thank you, Judge. Before I leave the magic key for a minute, I just want to make sure I was clear enough that, again, this is her car key, that obviously she used every single day. It was Teresa Halbach's key.

And I believe Ms Culhane said she swabbed all the way around that whole plastic holder, all the way around it. Not just along one edge of it. And yet she found none of Teresa Halbach's DNA, not a shred of it. And found only Mr. Avery's DNA, as if somehow the key had been wiped clean and his DNA was placed on it. He certainly is not going to do that. He's not going to wipe off her DNA and leave his behind.

And as to the bookcase, why it's not here, think about, again, it's their theory, that this key could have found it's way magically out of that bookcase and into its position. Their burden of proof in the entire case, and also their theory to explain to you how this very unusual key materializes out of nowhere and yet it is not here.

All right. Now, let's look at another piece of evidence that initially appears, certainly incriminating, but as you look more closely, looks more and more suspicious. And that is, Mr. Avery's blood in the RAV4.

Keep in mind that we're talking about a very little amount of blood here. Mr. Kratz maybe confused you when he made it seem like there was a lot. Yeah, there's not one microliter, but we're talking very small amounts of blood. As a matter of fact, the photographs that were taken by Mr. Groffy, before any swabs were taken, before any of the blood is wiped off. This is the front seat, I can barely see anything, unless that -- if that's the spot of blood, right there, that's awfully small, particularly when you are talking about fabric.

The CD case, can't even find any blood, can't see any blood. I believe Mr. Stahlke must have misspoke when he said it seemed like it was covered, that there was lots of blood on it.

The FBI guy who looked at it, the swabs, we'll talk about that, Mr. -- Dr. LeBeau, later. But he showed you pictures of those swabs and there was hardly any blood on it. If fact, they looked gray, like fingerprint dust, or something.

So, really, we have this and this, which Mr. Stahlke says is consistent with active bleeding. It is also consistent with active planting. So when I first saw this, I thought, you know, what is the source of Mr. Avery's blood.

Well, we have heard about how his -- he had blood in the bathroom. And so I looked at these pictures, these were pictures that I believe either Detective Remiker or Sergeant Colborn testified that they went around and took on Saturday night, at the apartment, before there was any kind of seizures of swabs.

The first thing you do when you go in is you take pictures and then you start collecting evidence. Well, you look at this particular swab, we'll do a close up on it. It's an awful odd looking blood drop, with a little whole in the middle, as if somebody would dab a Q-tip in it, that was my first thought.

And, then, the blood vial. And I offer that -- and we have offered that as a possible source of the blood that's found, Mr. Avery's blood that's found in the RAV4. It was in a public office, in an unsecured area; not in a vault where they keep locked up exhibits only; not down in the basement where they normally keep old files; but in that battered old cardboard box that we saw sitting in the Clerk's Office, because it was -- there were so many requests to see it, from the media and the public, that that made it more convenient.

They kept no good log back then, of people who were asking to see files, see any file, that one not withstanding. The clerk, Ms Zigmunt, later tightened that up in, I think it was October of '06, this past year. Now everybody has to sign in before they can look at any file. But back then she admitted that the deputy clerks would be more casual about it. And who would you be more casual about making someone sign in than a police officer, who you would normally trust.

So there would certainly be no reason for these clerks to take note or think that some police officer, Lieutenant Colborn, or Sergeant Colborn, I'm sorry, Lieutenant Lenk or Sergeant Colborn, would have any nefarious intent by looking at Mr. Avery's file. And that area of the file where it's kept is sort of screened off from the rest of the unit. And probably more likely, though, is the after hours access that the deputies have. The Manitowoc Sheriff's Department is responsible for security in the courthouse so, understandably, they have master keys that fit all the doors. And how difficult, really, would it be for someone like Lieutenant Lenk or Sergeant Colborn, veteran officers, to come in after hours, or on Saturday morning, and get what they needed. I submit it would be not difficult at all.

Now, Mr. Kratz, I can hear him now, he's going to get up here and say, where is the evidence. This is all speculation. Where is the evidence. As if he would expect anybody who was being framed to have a videotape of the officer taking the vial of blood and planting it.

Or as if he expects one of these police officers, in front of everybody, under oath, on streaming video on the internet, to admit, oh, yes, of course, I took the blood and planted it. Yes, I would admit that if I did it. Sure, I would go away to federal prison probably but, yeah, rather than lie under oath, I would rather go to prison than admit that.

Come on. This is real life. It's not TV. You can't expect a Perry Mason moment where you're going to get somebody to admit, to you guys, and everyone else in the world, that they did this.

So what do we have, though. We have reasonable inferences that can be drawn and circumstantial evidence, just like they do.

The box, you have seen the video, I'm not going to go through all that again, but I want to just remind you, show you the box. Evidence tape is very clearly cut, opened, and the box is resealed with nothing but a piece of scotch tape.

This one may show up a little better. Inside the box was the styrofoam container, and it was opened by all of us together, which also had -- which also had evidence tape sealing it, right along here. And on the video, you could see very clearly that that was slit, as if by a razor or scissors, or something sharp. So that one would easily open this sort of clam shell styrofoam container, and there is the vial of blood.

The vial of blood has a hole, what appeared to be any way, a hole in the middle, right there, which is where professionals would gain access to the blood, if they need it. But this vial has something more, as even Dr. LeBeau admitted. This vial has blood in between the rubber stopper and the glass, so that the experts who use these things all time, could say, even Dr. LeBeau, I believe is the one, who said this vial, clearly the top had clearly been taken off.

So, there's evidence that the box was unsecured and the top had been removed at some point. And the blood is still liquid. Can't really show you it in there, the way they have got it incapsulated in yet another glass tube. You can't really see it, but you did see, I think, in the video, as it was rocked back and forth, the blood was still liquid and, therefore, easily available to plant. And we're only talking about a few drops. That's all that's necessary to leave the amount of blood that they found in that RAV4, a few drops, that's all.

Now, Lieutenant Lenk, whose name keeps coming up at every important part of this case, had reason to know that that blood of Mr. Avery's was sitting in the courthouse. Because he was the evidence tech -- the whole head of the evidence department for Manitowoc. And he signs, in 2000 -- what's the date here -- 2002, September, he signed Exhibit 214, as the transmitting, or submitting officer to submit these items to the Crime Lab.

Now, I'm not trying to mislead you here, these items do not include the vial that we're talking about. But they clearly show that these came from exhibits held by the court since the end of the trial. And yet Lieutenant Lenk would have you believe, in his testimony, that he had no idea that that 1985 court file had any kind of exhibits like that in there.

The one thing they did look for fingerprints on, they looked for Lenk and Colborn's fingerprints on the blood vial. No surprise there. Second nature with cops when they handle anything like that, a biological piece of evidence, they are going to put their gloves on. So, okay, they look there, don't find any. But, again, they're looking for something that they know isn't going to be there in the first place, and trying to present that as if it means something. So then there's the question of the opportunity to plant blood. And that's why we heard all this testimony about the scene and whether it was secure or not secure. Well, keep in mind that that sheriff's department, even though their bosses said, within 45 minutes of getting there, that we're turning over this investigation to Calumet, the one item, the one item on that 40 acre property that they knew was important, the main piece of evidence, was that RAV4.

And they kept their officers in control of it for four hours. Talk about the fox guarding the hen house here, ladies and gentlemen. Come on. Is that just a coincidence, or is that Lenk and Colborn having some influence here?

How carefully was it being watched? Mr. Kratz told you that it was being maintained very securely and carefully. Well, we heard that until Special Agent Fassbender arrived at 2:25, there was no log at all of who was coming and going, looking at this main piece of evidence that they knew about.

They rely on two civilians, Nikole and Pamela Sturm, to be their watch dogs, so they can see from this crusher, distance 369 feet, I think it was, Mr. Austin measured. And, you know, I don't fault the Sturms. I mean, its revision is history, for them to say that they were watching that carefully the whole time they were there, that far away, to make sure nobody, even a police officer, approached.

Why would they care. Once they knew it was Teresa's vehicle, you know, the sad news that it was, that's where their attention would be drawn. They weren't watching this to see who approached the RAV4.

And there was a tarp over the RAV4, for, now, we find out, for an hour apparently, according to the digital signatures that we can find on digital photographs. And a tarp that's built up in such a way that it's practically a tent. That's not the best picture, but from a distance, this large tented over object, being very careful not to have the tarp touch the sides, with a nice little opening here.

Now, maybe that's not when it was planted, but it's certainly an opportunity. Probably more likely is that it's getting dark, and while the officer -- I don't believe, by the way, that there was any testimony that Mr. -- or Sergeant Orth was seated where Mr. Kratz said he was. But even not withstanding that, what we did hear was that there's other means of ingress and egress to that property.

Sergeant Orth testified that while the officers were somewhere in this area, remember this picture was taken after the vehicle had been removed, but that there's -- there's ways in and out from the west. I will show you in a moment, if I can find the overhead.

A little farther up, one can see the -- how the roads down here, we have lots of ways to get in and put that -- First of all, for someone to plant the vehicle. And, secondly, for anyone to approach it while it's there. And an even more distant shot that shows all the ways in to this plot of land.

So while maybe directly to the south of that berm it is not immediately accessible, there's all these other ways in from here, or from here. When somebody who knows the area, perhaps someone who's been a patrol sergeant for many years, knows the county like the back of his hand, is going to know how to get to that RAV4.

Then we have this whole question of whether the vehicle is locked or not. Well, the Sturms said they thought it was locked, but then when they were questioned more carefully it turns out that Nikole didn't check the rear tailgate. She checked it with her sleeve, the other four doors, but not the rear tailgate.

If it was locked, by the way, who do you go to when you lock your keys out. Most of the time you go to call the cops. Who better knows how to open up a car, quickly, than police? So the fact that it was or wasn't locked isn't crucial in this case, in my estimation.

But on this evidence, it's not entirely clear, when it gets to the Crime Lab, it really is locked. You will have to rely on your memory for that, but I think the record is unclear, frankly.

There is also, I want to point out, all you would have to open, by the way, are two doors, to put the blood where it was found. The driver's side, you can reach everything in that front seat and that one rear passenger door. So you wouldn't have to have them all open and sitting in the car in order to do this. And then we have the interesting circumstance of Lieutenant Lenk and his behavior on November 5th and since then, in which he testified, in a prior hearing in this case. Lieutenant Lenk is the only officer, the only witness in this case who was -- who has lied under oath. He gave sworn testimony one day that he didn't get to this site until 6:30 or 7:00, when it is getting dark, but came in front of you today and says, again, under oath, that it was 2:00.

Well, what happened in the interim? He forgot about the logs. And when you look at the logs, he signs out, but he never signs in. Fassbender had those logs starting at 2:25. So lo and behold, Lenk now appears on the scene at 2:00, to explain why he never logged in. Because otherwise the alternative is, he comes at 6:30 or 7:00 and evades the guard that's doing the log. That doesn't look good either.

So ask yourself, what evidence there is, what inferences you can draw from a witness who gives two different versions, under oath, about a critical point like this. His whereabouts, by the way, that entire day, he never writes a report.

So, I also expect, again, because they get to go last, I'm having to anticipate, and you may have to answer some other questions that they raise. But I expect that they are going to say this would have to be this complicated wide ranging conspiracy in order to frame Mr. Avery. Not true. Not true at all. This could be done by two officers, really one officer, the one officer who keeps coming up, Lieutenant Lenk, whose name is on the evidence transmittal from the 1985 case, just a couple years earlier.

Lieutenant Lenk, who shows up on November 5th without logging in. Lieutenant Lenk, who finds the magic key. Lieutenant Lenk, who four months later, four months after Manitowoc no longer is needed, with no legitimate reason, is back at that scene on March 1st and what's found the next day, the magic bullet, which we'll talk about in a moment.

Actually, let's talk about it now. Again, every time they try and -- Every time they find something that they should have found before, it was because, oh, that prior search was just for a missing person. We signed a search warrant affidavit in which we said we were looking for evidence of a homicide. But, oh, we were just looking for a missing person, we didn't know what we were looking for.

They are in that garage on November 6th, for an hour and 47 minutes, three officers. They find 10 or 11 shell casings, but they found -- if they saw a bullet, don't you think they would pick up that bullet? Don't you think that might be important?

Now, where was it found? Right smack dab in the middle, one of them. This is the March 1st photo, but No. 9, right as you walk in the door, the main overhead door, it's sitting right there in a crack. Now, to you and I, that may not look like much, but to an officer who's looking for -- if they found .22 shell cartridges, is going to be looking for a bullet, that's going to be pretty obvious. But it's not found until March 1st. And then the other, most important one, is found back here, up against the wall.

Now, one or two things had to happen, either they missed it, during the first search, or the scene had been altered between the first search and March 1st. And, in fact, we know that's what happened. We had the officers identify, look at this, there's a different car in there, there's this big engine hoist. Mr. Avery wasn't altering it, but other people in his family obviously had access, someone's car was parked in there. Things probably moved around, who knows.

But then we have testimony from Rollie Johnson, about his many gofer hunts. He says that if you go out there now, when the snow melts, you will find his .22 shells all over the place, including right -- most likely in that garage. His gun, his .22 and, yeah, those shell casings were fired in that .22, from that .22, you can tell that because of the way the pin hits.

But, according to Mr. Johnson, his -- the remnants of his firings, even years from now, are probably still there. Especially if you think about that, the Item FL, No. 23 that's under the air compressor. That probably hasn't been moved in years. Who knows how long that bullet had been there.

It didn't have Teresa Halbach's DNA on it, which we will talk about it in a moment. And that bullet is probably totally irrelevant to this case. Just one of many residues left over from Mr. Johnson's target practices and whatnot. I'm not sure it was entirely clear, so I just want to go over with you and make sure it's clear. The shell casings, we have two bullets and 11 shell casings. The shell casings, Mr. Newhouse was able to identify, came from that gun, but he can't say that the bullet, the ultimate bullet, FL, came from any of those shell casings. And he can't say that Mr. Avery, for that matter, ever handled any of them because nobody did any fingerprints of them.

And, then, the second bullet, the one they showed you that's down in the crack, that was designated as Item FK, Mr. Newhouse said he could not match to the gun, the .22 caliber Glenfield Marlin that was found in Mr. Avery's bedroom. He said that all he could say was that it would come from a class -- gun of a similar class, which I think included even a pistol that we talked about, with a different brand name.

But we know, that on that very property, the Avery 40 acre salvage yard area, there were other, at least one other, maybe two, .22 Glenfield Marlin rifles. In Bobby Dassey's bedroom, is one of them, exactly the same model, one of the most common models in the world.

So, even Mr. Newhouse couldn't say whether that bullet had any connection at all to this case, or to Teresa Halbach, or even to the gun that was found in Mr. Avery's bedroom, Rollie Johnson's gun. He did say, however, that that one item, under the air compressor, came from that gun and no other.

And when I questioned that, how reliable is that degree of science anyway. We're talking about these eyeball comparisons to these -- comparison microscopes. It sounds very much like the hair comparison analysis that had been discredited years ago. And I predict this so-called science is the next to go.

But at any rate, he was very defensive about his field, perhaps understandably, but when he wouldn't even admit that DNA is more objective than this comparison thing he does, you got to wonder. And, you also got to wonder why he didn't show you the photos of the comparison of the bullets, side by side, and neither did the State.

He didn't want you to see those comparison's, Mr. Newhouse, because he was afraid when you looked at them you would see what I saw, which is there's a lot of differences between those two fields of view. And that his opinion, that it came -- that they are one in the same, they came from the same rifle, is questionable.

But, putting all that aside for a second, even if he is correct, that that Item FL that was fired from the .22 rifle that was found -- Rollie Johnson's rifle, found in Mr. Avery's bedroom, that still doesn't mean it's connected to this case with any relevance.

Look at first, Mr. Olson, who does the lead analysis from the fragments of the cranium bones that he found. He said it's 99 percent lead. Well, Mr. Newhouse, in his notes, and I talked to him about this as well, he made a point that this -- Remember he talked about the two kind of bullets, some which are lead and some which were coated.

And this one, I believe he said, was coated with copper coating. Both of these bullets -- fragments that he found, were coated with copper. Where's the copper? I asked Newhouse, did you -- did you try and compare that -- the lead, little pieces of lead that he saw in those x-rays, with the type of lead that's in Item FL. And he said, no, he wasn't asked to.

So without some kind of connection between Teresa Halbach and that bullet, the bullet has no relevance in this case. It's just a random fragment, that's found in an old garage, that means nothing.

And so we come to Sherry Culhane. Now, you know, one of the odd things about trying a case with this kind of publicity, where other people can watch at home, or wherever, is that you get some feedback about how you do. Some of it not so good. And some people told me maybe I was a little hard on Sherry Culhane.

And if you think that, you know, I apologize if I offended anybody with my cross-examination of her, but I ask you not to hold it against Mr. Avery. Because I have a job to do and as an advocate, I need to point out, if someone goes over the line and goes too far, you have to understand it.

Now, I don't have a problem with almost everything that Sherry Culhane did in this case, and I said so. I haven't been up here disputing her statistical calculation. I haven't disputed any of her -- the Power Points where she's lining up the profile of one to the next. And it's true that she did help exonerate Mr. Avery in 2003, although she sat on it for a year and he spent an extra year in prison, she did exonerate him by finding an exclusion and then a match to Mr. Gregory Allen. And we appreciate that. And I didn't mean to not appreciate that.

But I also pointed out, it's not like she's a defense witness either. She helped convict him in 1985, with this now discredited science of hair comparison analysis, where she rendered opinions to jurors just like yourself. So most of what she did in this case was fine; in fact, it was more than fine. Because it really excluded Mr. Avery from -- either Teresa Halbach from all these items, or Mr. Avery from the other items. Really the other way around, she's looking for Teresa Halbach's DNA in incriminating places. And she doesn't find it.

So I can imagine how frustrating it might be when you get a phone message that tells you this, early on, try to put her in his house or garage. Now, this is not blind testing, by any means. These agents are telling Ms Culhane what they want. And this is November 11th.

Well, here it is, she's working on this bullet fragment now, in March. And she still has not found one item that links Teresa Halbach to Mr. Avery's house or garage. So she's got to feel some pressure. This is the biggest case of her career. The biggest case the Crime Lab has ever had: 380 items, 180, I think, submitted just to her unit.

It's almost five months late and nothing has been found. So when she gets this last bullet fragment, she recognizes, I think she said, it's a probative piece of evidence. She knew what it was. And when she gets this contaminated test, the pressure is on for her to go way out on a limb, farther than she's ever gone in her life. Never before has she ever asked to deviate from a protocol to make an inclusion, until this case.

Now, she probably convinced herself that it's okay because it's just in the control, who cares. There's no evidence that the bullet is contaminated, right? Well, we talked about that, what controls are, and why they have them, and how you can find contamination in controls very easily, because if a control has anything but zero DNA, it's been contaminated.

What you can't tell is when a piece of evidence shows up with someone's DNA, you can't tell whether it's there because it has been contaminated or not. And so what you do is, you run a control. And the protocol says, if that control is contaminated, you toss it out, and that's the end of it. Because they know, from their own tests, that there's cross contamination that can occur from one evidence item to the next. And they can never rule it out if there's a contaminated control.

So where is Teresa Halbach's DNA coming from? Ms Culhane says, she's theorizing and she thinks, well, maybe -- maybe I'm talking too much or I'm too close to the bench and that that's how her DNA got on there. But in truth, she doesn't know how her DNA got on there.

And what we do know is, that Teresa Halbach's DNA was right there at her bench, right underneath the same bench that she's working on, is her storage area. We talked about the central storage area for evidence. She checked it out in November. She never put it back until mid April, I think it was.

And all that while, she's got Teresa Halbach's DNA, from the RAV4, in the cargo area, sitting right there on her bench. That's a bad practice right there. But when you get a contaminated control, you can't tell how and whether Teresa Halbach's DNA ended up there in the same extraction mechanism that she's doing or not. You just can't tell.

And their own logs, their own contamination logs that I introduced, talk about how difficult it is. We went through it. I won't go through it again with you. But there are instances in here where it specifically says, evidence from one case has been contaminated into another.

And they look and they try and figure out why, corrective measures. And they can't figure it out. They can't figure it out. So how are we supposed to figure it out? How are you supposed to figure it out? You can't. And that's why the protocol says, you toss it out and you do it over.

Only she had a problem, because she had used it all up. She took a chance, rather than trying to swab it, to put it in this buffer and dissolve it all. And she had a one shot, one chance with this DNA test. And when it came back contaminated, she was kind of stuck, you know, this was probative. And so she went out on that limb and said, I'm asking for a deviation from the protocol. We're going to call this Teresa Halbach's DNA. And why is that so important? Why -- Why do we know that it's unreliable? What else is there to tell us, maybe, that it's an unreliable conclusion? It's the only place. All these other items, it's the only thing that's ever come up with Teresa Halbach's DNA.

You people look a little bit tired, anybody want to stretch for a moment? Would you like to get up and stretch? Is that okay, Judge?

MR. BUTING: All right. Let me -- There's one other area, though, where -- that we have to talk about, that Mr. Avery's DNA is found on. And that's the hood latch. But that's the most easy -- easiest to understand, really, because -- First of all, note that it's not found until month's later, which means that it wasn't found in the first sweep of the car that Sherry Culhane does.

And who followed Sherry Culhane into that vehicle, who's the next person? The first thing they do is DNA, so that no one is contaminating anything. Next one to come in is Mr. Stahlke, the blood spatter guy.

He admits he is leaning in, he's got his hands in there. He's touching. And I think he's even -- I don't remember if he admits actually touching the blood itself, but he's certainly all over the area where it was, with his gloves.

And then someone asked him to get the odometer reading. So he turns the key and there's nothing. So he realizes maybe the battery is dead. He comes around to the hood, and he said, he didn't change his gloves. And he opens the hood and, then, of course, sees the battery is disconnected. And they have to do something else to get the odometer reading.

But that's -- that's the problem with DNA, it's so easily translated -- or transferred in the environment. That's why you are supposed to peal off your gloves. And he didn't.

Let's move on to some of the other aspects of this case that are really peculiar. How about a complete lack of any motive for Mr. Avery to kill Teresa Halbach. Why would he kill Teresa Halbach? It's a man who's wrongly incarcerated, spent years in prison. Gets out, has a good lawsuit pending; he's going to get a whole lot of money, in all likelihood. Why would he kill somebody? That makes no sense.

First thing that leaps out at you when you heard about this charge, maybe more peculiar, is why Teresa Halbach? Why kill some woman that just comes over and takes pictures of your car four or five times? Why her?

And just quickly, this theory that somehow he was luring her over by using the name B. Janda, is completely bogus, because the very same day, one of the other customers did the same thing. You give the name of the owner. Mr. -- I may have it backyards, Mr. Schmitz, I believe, called for -- Mr. Sippel called and left Mr. Schmitz's name because he's the owner and he was the one who was going to be there when the car was looked at.

If he is really going to plan to kill Teresa Halbach, specifically, why not just call her on the cell phone? Why leave a paper trail? Why call the office, you know, leave your address, Avery Road? I mean, hello, Avery Road, doesn't take a rocket scientist to trace it back to him.

And where was she killed? In the garage? We still don't know, from the State's theory. But think about this, maybe he's got some explanation he's going to come up with here, but if she's killed in the garage and she's burned in the burn pit, what's she doing in the back of the RAV4?

He put's her into the cargo area of the RAV4 so he can drive 20 feet around the other side of the building to take her out and put her into the burn pit? Makes no sense at all. It's another reason to suspect that that burn pit is not the original site of burning, because her body was very clearly inside that rear of that RAV4.

Why burn the phone, and the camcorder, and the -- or I'm sorry, the camera, and the palm pilot? Why burn those items in your own burn barrel? You are surrounded by quarries. You are out in a rural area. You have got 4,000 junk cars. You have crushed cars you can put it in.

Why do you burn it? What's the point? Get rid of it. It's easy to get rid of. Toss it in one of the ponds. Bury it. No one is going to find pieces of metal. Especially, again, if after November 3rd and 4th, it's obvious, the police are looking at you.

Mr. Kratz says, the location of that car tells us it was going to be crushed. And think what would have happened if that car -- if Patricia Sturm had not found that car on Saturday afternoon, that car would have been crushed and we would have lost that evidence forever.

Well, ask yourself, why wasn't it crushed, already? You got a crusher, I mean, you got a crusher on your property. You got -- 54 cars are crushed there. It's obviously used all the time. Why isn't it already crushed on November 5th, especially if you know the cops are looking at you? Common sense. And why try and build this complicated outdoor fire to get rid of a body, when you have got something like this on your property, that can melt aluminum to liquid. Big enough, easily, to do the job you need, if that's what you are going to do. You would use that. But, of course, that doesn't fit with the State's theory, because if you did use the smelter, you wouldn't move the bones back on your property.

All right. Let me talk about the FBI, Dr. LeBeau. I suggest he is not a credible witness. And more importantly, the test, for what it was used, for the opinions that were given, is not credible for that.

He gets the award for the most absurd expert opinion of anybody that's come into this courtroom and this trial. When he says, I can conclude to a reasonable degree of scientific evidence, that when I test those three items, and don't find EDTA, these other three items that I never bothered to test, they don't have EDTA either.

How can you ever make that kind of conclusion? That tells you how sloppy he is with his opinions, how willing he is to give them what they want.

Compare his testimony to Dr. Janine Arvizu, who was forthright, not dogmatic. She gave Mr. -- Dr. LeBeau his due. She agreed with him when he was right and pointed out where he was wrong.

She said that this protocol is fine, perhaps, the test, if EDTA is, in fact, present. But to then use it beyond that and say that the absence of it, the absence of EDTA by doing this test proves it's not there, goes too far. It even goes beyond the scope of the protocol itself.

Because the protocol says that this procedure allows for the screening and confirmation of EDTA in the suspected bloodstain. Doesn't say that you can then conclude, if you don't get it, that's it's not there. And the reason why is -- it took Dr. Arvizu to figure out, I certainly couldn't -- it's this whole idea of limit of detection.

The test that he did, injecting something right into the -- into this instrument, this whatever it was, MS/MS thing, that's easy. I mean, yeah, you are going to get a low -- you know, you are going to be able to get a low limit of detection because it's pure, put right into there.

It's the extraction process, where you are taking something out of the fabric or a swab, diluting it, extracting it and going through that whole process of filtering, that it becomes more difficult. Your level of detection is now much higher.

In addition, the protocol was rushed. Think about that. Think about how this whole thing came about. The FBI has not tested for EDTA in 10 years, since the O.J. Simpson case. His explanation is, because no one asked. Think about that. Why do you think no one asked?

First of all, we can't ask for it, as the defense, the defense bar. Only the prosecution can ask for it. What did they do in that case? They screwed it up. They found EDTA and later argued, whether they were right or wrong, we will never know, later claimed, oh, that was just a carryover from a different sample. Well, the jury was told that there was EDTA in that case, look what happened.

What prosecutor is going to trust them to do this same kind of test and not screw up their case? This prosecution team. Because they were desperate to try and do something to discredit the defense of planting, whatever it took.

And, so, when it normally takes three to four months to develop one of these protocols, they suddenly come up with one in two weeks. And they are testing it and validating it and actually doing the test samples before, as Dr. Arvizu said, before they even got their results of their own competency tests from this procedure.

So why is the FBI involved in this case at all? Again, this shows credibility, a lack of it. They try to say, oh, we're concerned about police misconduct. We want our public officials to be truthful. And if there's some officer who is planting, we want to know about it.

Well, I asked them, what investigation did you start? Where is the grand jury? What's the U.S. attorney doing? Is there even any investigator on the case from the whole FBI, that's talked to any witness? No. All they have got is this lab that's asked to do this new protocol and here's what they are told. Purpose of this request is to establish the presence of EDTA in the vial of blood, thereby eliminating the allegation that this vial was used to plant evidence. That's it. It's not to find out whether these cops are corrupt. It's to eliminate the defense. So are we surprised at the results? I'm certainly not.

The real reason the FBI got involved in this case is because Mr. Avery had the audacity, and, you know, this is what I'm going to hear, probably, how dare he accuse these fine officers and besmirch their reputations.

And when that happens, they circle the wagons. Cops, when they get accused of misconduct, they circle the wagons. That's the code of silence, or that's the bond they have. And that's why Calumet and DCI were so quick to jump on the bandwagon, when Lenk and Colborn were professing they did nothing wrong. They had nothing to do with this. And Lenk and Colborn probably counted on that.

Quickly, a couple of other peculiar things about the timeline. The -- Bobby Dassey says that he sees Teresa Halbach at 2:45, he leaves at three, and the vehicle is still there, something like that. He has no good way of verifying the time, but he tells the officer, talk to Scott Tadych -- Tadych, he can tell you precisely, is the word he used, precisely what time it was.

Well, how does he know that Tadych can tell precisely what time it was that he supposedly is being seen, unless the two of them maybe got together, talked about a story they had come up with.

Remember, those two people, unlike anybody else that was asked about an alibi and maybe weren't, but those two people alibied themselves. Without each other, there is no alibi for either one of them. Nobody sees Dassey go hunting in the woods. Taking a shower, by the way, before he goes off hunting, like his Irish Spring soap is going to help attract deer. Come on.

And he goes there so that -- he wants to get there before dusk, because that's when the deer feed. I'm not a hunter, but we know what time he left and came home. It was well before dusk, he is home at 5. That doesn't make sense.

More importantly, Lisa Buchner, the school bus driver, is a completely disinterested party and she does have a reason to know the time, precisely, because she has got a regular route that she drives, 3:30 to 3:40 every day. School lets out 3:05. She's drives, drops the people off. She's dropping those Dassey boys off at that time.

What does she say? She says she saw a woman taking pictures of a van. Now, how many women are out there taking pictures of a van at that same time period. She's honest and says I don't remember if it was Monday, the 31st, Tuesday, the 1st, or Wednesday, November 2nd. That's what she tells Investigator Wiegert on November 7th, just one week afterwards now, when it's fresh in mind.

And she's so concerned about it, she went to the barricades on November 5th and said, hey, I think I saw her. I think I saw her. I don't remember what day but, you know. That's what she describes, this woman taking pictures. The State, 16, 17 months later, is able to confuse her, and say, well, yeah, maybe it was a week earlier, maybe it was a couple weeks earlier, but that's not what she said when it was fresh in her mind.

The State will argue that the location wasn't right. She said she saw someone taking -- she saw her taking the pictures of something down around the turn around circle. And it's true, that's not where Barb Janda's car was, or this van was. It was up the road a ways. Well, either she's mistaken about that or -- and I submit this is a very real possibility -- she is doing a hustle shot, because she's been flagged down on her way out and asked to take another picture. By who?

We know it's happened before. We have evidence. Angela Schuster said, just a few weeks earlier, Tom Janda had flagged her down and taken a hustle shot, on the way out.

And John Leurquin, the propane driver, yeah, he's not as certain, but he does corroborate Lisa Buchner in that he sees this green SUV around the same time. He doesn't know who's driving, and maybe it wasn't Teresa Halbach at that point. This person who was hustling a shot perhaps, was driving away with. But he recalled it because it was different, wasn't the usual regular vehicles that he always sees. So when the State tells you that Bobby Dassey is this credible witness, who's the last person to see Teresa Halbach alive, maybe he's right, if he's the killer. Or Scott Tadych, his only alibi. He tells him --

MR. BUTING: Police, when they interview Mr. Dassey, just accept his story, unquestioning -- unquestioningly. And they accept Mr. Tadych's story. They don't go check out his alibi for later, where he says he is visiting his mother at the hospital. Well, where is the proof of that?

Why do you believe him, especially when he tells you that, when he comes back, he sees this fire, and then he knows what time it is because he leaves around 7:45, he wants to get home so he can watch Prison Break. Prison Break, at 8:00, in Wisconsin. Did they check that out to see what time it comes on?

Do you still want to be heard or?

MR. BUTING: All right. I will talk briefly about the other, since Mr. Kratz said that these -- Mr. Fassbender and Wiegert were investigating, parallel, these other suspects, including the boyfriends, ex-boyfriends, whatever, but look at what they did. They admit that, yeah, sure, Mr. Avery may be a suspect or a person of interest because we know he was one of the people who saw her on the last day.

But who else saw her on the last day, George Zipperer, and look how he behaved. Mr. Avery says, come on in, very cooperative. Zipperer is belligerent. But we didn't know that.

Hillegas, former boyfriend, no alibi, didn't even ask him.

Male roommate, Mr. Bloedorn, who doesn't report her missing for four days. What's up with that? Don't ask him for an alibi. Where was he?

Bradley Czech, male friend with a little bit more personal relationship with her, perhaps. Again, no alibis checked.

Mr. Pearce, an employer who never bothers to report her missing, for four days.

All of these roles that these people play, the officers admitted would normally, in a normal missing person or homicide investigation, be considered possible suspects that you would at least look at and check out, but not here.

And what about all the other people on the Avery property on October 31st? What's up with that? Where are their alibis? Customers and other people who work and live there.

And, interestingly, going quickly back to this hustle shot for a minute, I asked, you know, you think maybe -- well, of course, if she was flagged down, there wouldn't be any record in her palm pilot.

But if it was a different kind of hustle shot that she was on her way to go do, the FBI technician, or whatever, that came here and talked about the electronics, said that he might have been able to recover that kind of data from the palm pilot, but wasn't asked to. They were concerned about him trying to prove that it was Teresa Halbach's palm pilot, not what was on it.

And, then, there's what I consider the mysterious part of Teresa Halbach's life. And I mean no disrespect to the Halbach's family, whatsoever, when I say this. But Teresa had her own private life. We know that. She had at least three circles of friends, I think it was described: Her family, people that she worked with in the community, marketing and whatnot, and the Green Bay friends.

And apparently they didn't intersect very much. Because she's missing for four days before anyone reports it. And maybe most interestingly is, we know that on Saturday night she was out, with somebody, or she was -- I can't say she was out with somebody, but we know that she went out, some Halloween party somewhere, bar, wherever, in Green Bay area is what Mr. Hillegas, I think, said he thought, or maybe Mike Halbach.

And yet, despite all those fliers that were sent around, all over the state, thousands of them, not one person has come forward to say I was with her Saturday night. Something is weird about that. Especially when you combine it -- I believe Mr. Pearce, I may be misquoting him, but I believe he, at one point, had some thought that maybe she had met somebody on the weekend and that's where she was and why she wasn't showing up.

But then we have the weird thing about the voice mail. Why did the police not follow up on this. We were not confused about these records, but I'm glad that Mr. Zimmerman was able to enlighten us, that the messages that are on this exhibit, 372, 18 of them, would not constitute a full mailbox. He said that very clearly.

And what he said was, when I asked him if this -- if this persons account was sending out a message when you called, that said mailbox is full, would something more have to be on it than what's on these records. And he said, yes. And he said that, yes, that meant something had to have been erased. Something on her voice mail was erased by somebody.

And to do that, you would have to have her password. And I'm not at all accusing the Halbachs of that. But somebody else close, that had her password, and for some reason thought it necessary to erase a message. What was so important on her voice mail, or perhaps so incriminating on her voice mail, that would necessitate somebody, close enough to her that has her password, erasing one or more messages.

These are all reasonable doubts, ladies and gentlemen. These are all questions that police and law enforcement ignored, because it points away from Steven Avery, who wouldn't have had her password and points to someone else. Mr. Strang will finish up and give you a little bigger picture in a moment, but I'm confident that you are going to find more than reasonable doubt and find Mr. Avery not guilty. Thank you.