2.Defense Closing Argument by Dean Strang

MR. STRANG: I'm No. 7. I'm getting nods, you hear me, whether you want to or not.

I want -- I want you to step back just a little bit here and let's try to work at assembling a bit what you might do in approaching your task. And you have got such a mass of information, really, over the last five weeks, let's call it. There are some things you are not going to be able to do, I think. But there are also some things you can do. And I want to talk about what I see as the line between those things.

You, unfortunately, are not going to be able to solve the murder here. And I say that for this reason, if Steven Avery did it, if -- if he's the guy who murdered Teresa Halbach, then -- then, in a sense you are not going to solve that. They already think that.

This is the person they think all the evidence points to, the person they have identified as doing it. You can agree or disagree with that, with that -- that theory of prosecution. But, fundamentally, you and I aren't solving a murder, because if Steven Avery didn't do it, we can't tell you who did.

You know, Jerry Buting, Jerome Buting, in Court, you know, is not going to tell you -- doesn't mean to tell you that, for instance, Bobby Dassey murdered Teresa Halbach. We don't mean to tell you that someone else murdered Teresa Halbach. It's really kind of a point, we don't have a police department, you don't have a police department.

We're not going to be able to solve the murder, if Steven Avery did not do it. So, you know, you can agree with the State, you can agree with the defense, but at some level you are not solving the murder, as much as it's natural for all of us to want do that.

Second thing I think you are not going to be able to do, I'm quite certain you are not going to be able to do, is bring Teresa Halbach back through that door, or better yet, back through the door of her mom's house. We are not going to be able to do that. Convicting a guilty guy, convicting the person who killed her, wouldn't do it. Convicting someone who didn't kill her, certainly won't do it.

The life that was before October 31, 2005, never will be lost. It's etched in mom's heart. It's etched in her brother's, and her sister's minds, in their memories, in the people they are. That life is not lost. The life that could have been, going forward beginning November 1, 2005 is forever lost, not forgotten, but lost.

This is human tragedy, and if you or I understood why people have been killing each other since we crawled out of caves, we would stop it. But somebody killed this woman and that life going forward is lost. You can't get it back. I can't get it back. The gentleman at this table can't get it back.

The other thing I think that you are not going to be able to do, you can't do, 13 people, 12 people, can't do, is we can't provide closure here in any real meaningful way. It's not what courtrooms are good for. You would like to be able to do that for Teresa Halbach's family.

I think you would like to be able to do that for Steven Avery's family, provide some closure. Provide it for him, for crying out loud. You would probably like to do that, too, if you could. But there again, the time since November of 2005 really, fundamentally, is lost, as a matter of closure for Steven Avery.

He's never really, in the broader public, been presumed innocent. He's never really had the presumption to which he was entitled as an American, as a citizen accused. You folks may be the only people in the world, other than those of us at my table, who do presume him innocent.

You can't do anything about it. We can't do anything about that, for the rest of the world. And as I say, courtrooms are pitiful, pathetic places to try and provide closure for Delores, closure for the Halbach family. Not that it's not important that the system not work, it is important that the system work. Because when it works, we can provide justice, or some semblance of justice. But justice and closure are -- are two different things.

Nobody is always happy with justice, or at peace necessarily with justice. And in that sense, closure would be something more. Something more personal for that family, and for this family, and for Steven. You'd provide it if you could, I know you would. You won't be able to do it. And in some ways you are going to be told that you ought not try to do any of these things. Because I think Judge Willis will tell you, after the lawyers are done speaking at long last, I think he will tell you that you have got to decide this case, as finders of fact, without sympathy, without prejudice, without passion, without all the things that might go into solving murders or providing closure. You will be told instead that you won't, you can't, be swayed by sympathy, or prejudice, or passion.

But there are some very important things that you can do here, now that I have identified the things you can't. There are some very important things you can do. You can honor your oath. You can keep a promise that you made before the world, more importantly, that you made for yourself. You put your own conscience on the line. You can honor the oath that you have taken and that you will take, as jurors. You can obey the oath.

That's no small thing. You are under an enormous amount of pressure, internally and externally. This table, my table, a courtroom full of people, a community at large, terribly serious issues for everybody. So when I say you can honor and obey your oath, it's a big deal.

You also can apply the law, honestly and courageously, part of what you are duty bound to do, as the Judge delivers the law to you in the form of those jury instructions. You can apply that. You can decide this case, if you choose, on the evidence in the courtroom and only the evidence in the courtroom.

You have the power to do that. You have a duty to do it, but more importantly you have the power to do it. You get to make the choice to do that. It's something you can do. You can decide whether allegations have been proved, beyond a reasonable doubt, in considering all of the evidence.

I don't take it for granted that jurors do that, in the end. Because jurors are all human, just like I am. But if you choose to do that, you can. It's within your grasp. And I think, finally, you can, if you choose, you can get it right.

In the limited parameters available to you, you can get it right. You can go home, whenever you are done, and say, I know in my head, because I used my head, I know in my heart, because I used my heart, I know in my conscience, because I listened to my conscience, that I got it right. You can do that. And if you do, you will also have set it right.

Just as I said I was going to ask you, when I spoke in opening statement, when it was about 19 below zero outside, or whatever it was that day, you will set a lot of things right, if you get it right, here. The 1985 case won't matter so much any more, if justice is done this time.

Will that ever go away? No, but it just won't matter so much any more, the injustice that was done to Steven then, because there is -- there is something redemptive in human beings going back and trying again and getting it right eventually.

So I want to ask you simply to commit to doing the things you can do, and to living with, reconciling yourself to the things you can't do. You are not going to solve a murder -- a murder, but you may spare someone who's not a murderer. You are not going to bring Teresa Halbach back to her family, but at some level, just by this trial ending, you can give her back to her family.

What I mean by that, I mean for crying out loud, what an artificial thing we do -- and I love this, I love being a lawyer, I love it -- but what an artificial strange thing it is that we do here, rules of evidence, formal procedures. And for crying out loud, right down to taking body parts and putting exhibit numbers on them, explain a person's phone records on a screen for a room full of strangers to look at.

It is what we do. It's what we have to do here, at some level. Clinical discussions of death, dry discussions of who you are calling, or who's calling you, on your cell phone, just for example. It's important. It's necessary.

But, when this trial ends, with a just verdict, although you can't bring her back, in some ways you can give her back, you know. We can be past that and remember the Teresa Halbach who was, rather than the 15 loci of her DNA. You won't give closure, but maybe, maybe, you can create an opening; if not closure, an opening when we finish this trial, for people to get out of these pews, out of these uncomfortable pews, go back about their lives, and in church, and in community, and wherever -- wherever the heck people hang out, in family rooms, there pursue closure.

And the sense of restoration or reconciliation that we find, or seek, in places other than courtrooms, with uncomfortable pews to sit in. So maybe, as you finish this case, although you can't give closure, maybe you can give the opening for it.

How do you undertake then, to do the things that you can do. It's witnesses, it was helpful for Mr. Kratz to give you pictures of the witnesses so you can associate the face with the name again. But much more fundamentally, how do you -- how do you assemble and assimilate this mass of information and approach it in a practical way.

You can't do it by hoping the DNA will tell you a story. You know, unfortunately, for example, DNA, doesn't tell stories. People tell stories. People have stories. DNA is submicroscopic bits of protein. Mine's a little different than yours, but, you know, fundamentally we're all about 99.9 percent the same, probably. Doesn't tell a story. It doesn't tell why someone did something, doesn't tell when it got where it got.

If a human being made a mistake with the DNA, it doesn't tell you anything at all about whether -- whether it should have been here, or wasn't here, or whatnot. It doesn't -- It doesn't tell you a story, unfortunately, although it makes good rhetoric, in a closing argument.

So what you have to do in the end is, you have to look and listen to people here. Even when they are talking about science, or filling their -- with the propane truck, or whatever. In this process, to do your job, to do the thing you can, you have got to look at real intently on the witness stand and listen to people. And you have got to sort out who you believe and who you don't, in the end.

So I want to at least suggest that you ask two very basic questions here as -- as a framework, a possible framework for getting at the things you can do here, if you choose. First question, you know, he says he is innocent. Anybody can say they are innocent.

Back at the time before you were around, before anybody was really looking at him, you might ask first, was he doing the things that an innocent person might do. As you look back at it, was he acting and was he behaving like an innocent man. That's one question you could ask, sort of approaching this whole mass of evidence.

A second question you might ask yourself is, for the law enforcement professionals and the prosecutors, primarily the state employees and state witnesses, call them law enforcement people generally, the ones who are so convinced he is guilty, back before they got here, were -- were they behaving as honest people acting in good faith do.

You could ask yourself that question, again, as sort of a framework for approaching this mass of evidence. Back before they knew you were going to look at them, as you see it now, were they behaving honestly, were they acting in good faith. Now, these -- these are just two suggestions, just some lawyer's idea. You can go about this whatever way you want. But this might be helpful.

And ask yourself, as to the folks who think Steven Avery is guilty, do you believe them in the end, and believe them to a level that you would not even pause or hesitate, when called upon to act in the most important affairs of life. That's language right out of this reasonable doubt instruction that you got.

And just taking a part of it, and it's sitting under your chairs, or wherever your instructions are, you don't have to pick it up and look at it now, but you will find that. I think it's a helpful practical guide in deciding whether something is proven, whether you believe it, beyond a reasonable doubt. It's, you know, would you -- given the information you have in the end, would you pause or hesitate in the most important affairs of life.

There's no getting around that this is one of the most important affairs of your life, of your lives. A young woman is dead, for no conceivable good reason. And a man is on trial for doing it. Enormous consequences. And Mrs. Halbach, and everybody who loved and cared about this young woman, brothers, sisters, friends, uncles, aunts, you name it. And to Mrs. Avery, whose own story is tragic. You know, and to the people who fought for his innocence, the handful of people who believed him, before the rest of the world finally got it right, who went through all that, Mrs. Avery, and then two years later to have this come crashing down on her. This is an important affair. And it is for you now, too.

So, I start with my first question, did he behave as an innocent man might behave. Let's go back, let's go back to roughly October, 2005. What's he doing? What's Steven Avery doing? Well, he is living in a trailer that he borrowed from Rollie Johnson. That's pretty modest. That's a damn sight better than a prison cell, that he had been in. He's got himself a girlfriend. He's working in the family business. This is all honest stuff. So far.

He has a lawsuit started, for a whole lot of money, based on he's got two indisputable points on his side in that lawsuit. One, he was innocent of the earlier case, but, you know, he rotted in prison for a while anyway. So, you know, he is innocent, but he went to prison. He's got two pretty good starting points in a lawsuit, in getting some money. And that's what he's got two other lawyers pursuing for him, back in 2005. He's got his mom and dad back. I don't mean to be ignoring Allen, but when I speak of Delores and anybody else, he's got his family back, is the point.

And as this -- as this case starts to take shape, you know, as Teresa gets reported missing, and they find out that she had a photo shoot out at the Avery property. The very night, November 3, she's reported missing, Sergeant Colborn comes out to the property, bumps into Steven Avery.

Steven is not expecting the police. There's no way he would have even known she had been reported missing at this point. Bumps into Sergeant Colborn and he is cooperative. By Sergeant Colborn's own account, he is cooperative, open, talks to Sergeant Colborn. Doesn't say I'm not talking to you, you know.

The next morning, same thing. Detective Remiker and Lieutenant Lenk come out to visit him. He's cooperative, cooperative to the point of saying you can come into my house, when they ask, go ahead, come in my house.

I think it's later on Friday, November 4, when David Beach comes and, you know, has the poster. He wants to put the poster up. This is Teresa's relative, nice younger guy who testified, I think the first day of testimony. And David Beach has a conversation with Steve Avery and Steve is forthright. He's calm. He appears concerned, according to Mr. Beach.

To me, this is useful, because at that point he is not posing. He is not in a courtroom. He doesn't know how this is all going to play out. These -- These are people who are seeing him real, if you will, just having, you know, encounters with him. And this is their take on what -- on what they are getting from his behavior and what he says.

Is he behaving like an innocent man? Well, he has Teresa Halbach's cell phone number. We get a glimpse of her, she's obviously willing to give this out. She says so in the voice mail message. She leaves her cell phone number on the voice mail message. They caught that, that she leaves on the Janda voice -- or answering machine.

And Steve has her cell phone number. He has got it written down in two places in his house. They are on his computer desk somewhere. They are there on November 5 when the police descend and the -- the Avery people get excluded from the property. And the police have it for a week. They are there. He hasn't destroyed her cell phone number, hasn't tried to get rid of it, you know. It is there in not one, but two places.

So, you know, I don't know, if you can burn a cell phone, and if you can burn an A310 Digital Power Shot Camera, I don't know why you can't burn two pieces of paper that have a cell phone number on it. That's not what he does, obviously. There was a van for sale. Heaven knows there was a van, you saw about 10 pictures of this silly maroon van sitting out there. Why -- Why do I, you know, why do I suggest that's evidence, if you will, of Steve behaving like an innocent guy would behave? Well, you know, if you're -- if you are going to lure the photographer to your property so you can have your evil way with her, and kill her, you don't need a car, you don't need anything for sale. You just lie and say, you know, I want you to come out and take a picture of a '73 Eldorado, or, you know, whatever it is.

There's a van. It's the van he tells Auto Trader. It's owned by Barb Janda, just like he tells Auto Trader, B. Janda. And gives B. Janda's telephone number. Turns out there is no dispute, of which I'm aware. The Dassey boys, you know, Scott Tadych, the people who know about this, who testified, yeah, there's a van. It's sitting there. She's trying to sell it. It's hers.

I think that's suggestive of innocent behavior. Not of, you know, luring, or concocting some scheme so that you can murder somebody.

Look, again, what he's doing in October and early November, 2005, while he's still in his house. The gun's over the bed. Are they hidden? Has he -- you know, has he run off and burned them, or asked his nephew to take them and thrown them in the bottom of a pond or something, or even moved them to the spare bedroom? No, the guns are where they are. They are right where Rollie Johnson left them.

Did he crush the car, no. Did he empty the burn barrel, try to hide, you know, whatever is in the burn barrel? Did he melt the license plates? Did he get rid of the key that supposedly is found, you know, next to the foot of his bed, or across the way from the foot of his bed, next to his desk? No, you know, he doesn't do any of that. I don't think the key is there. But if you believe that it's -- that it's there, you know, if you believe it's there, then it's awfully incriminating, if you believe he put it there.

But, you know, I don't know why he would keep the key, and that key alone, of all of Teresa Halbach's possessions, if he has previously disconnected the battery so that the key won't work, unless he reconnect the battery for some reason. And he's got a junkyard, for crying out loud. Leave the key in the trunk where the keys are for all the other junk vehicles. Leave it in the ignition, put it in the grass, I don't know. Bring that, and that alone, to your bedroom.

But you know, in general, the behavior you are seeing from Steven Avery on November 3 and November 4 is open, cooperative, sure you can search my house, contrasted to the behavior of a George Zipperer, who is one of the other appointments Teresa has that afternoon. Uncooperative, hostile, dishonest with the police, won't let him in the house for a long time, even after he knows this young woman is missing. You get this from -- some of it from JoEllen Zipperer and some of it from Detective Remiker.

How about burning trash, plastic smell, burning trash at about, give or take, 3:45 on Monday afternoon, how about. Well, that really sort of takes you to Bobby Dassey, and Blaine Dassey, and Lisa Buchner, and John Leurquin, to decide what burning trash means.

If Bobby Dassey is right and Teresa Halbach has been there at 2:45, then burning trash at 3:45 with a plastic smell is potentially incriminating. Bob Fabian sees this, smells the plastic burning as well. That's potentially incriminating if Bobby is right.

I'm wondering why Bob Fabian doesn't smell the quite distinctive odor of a burning tire. You know, rubber burning, with black smoke pouring thickly out of the burning barrel, if supposedly the tire is being used to burn the cell phone, the camera, and the palm pilot.

But setting that aside, to me there is a more fundamental problem with that. I don't think Bobby Dassey is right. You know, Blaine Dassey has a good reason to know when he gets off the bus every day, it's 3:30 to 3:40. He comes home, Bobby is sleeping. Bobby is there and he's sleeping. This is what his own brother remembers.

More, the bus driver has a pretty good reason to know what time. She's driving the same route every afternoon, dropping off the same kids, in the same place, at about the same time, every afternoon. She's no friend of Steven Avery. She's not connected to Steven Avery. She's not coached. She's not trying to oversell what she remembers. But that's when she drops the Dassey boys off. And one of the days that week, either Halloween, or Tuesday, the 1st, or Wednesday, November 2nd, she remembers seeing a female photographer taking pictures of a van.

If facts are stubborn, as counsel says, then that -- then that's a pretty stubborn fact. Just because she's not overselling it, and she has no reason to want -- to care how this case comes out, you know.

So is it possible that some other female photographer was there on Tuesday, November 2nd, taking a picture of a van? Well, is it possible? Sure, it's possible. But even Investigator Wiegert concedes, when pushed a little bit about that, that he doesn't have any information about another female photographer coming to take a picture of another van.

So this is pretty reliable stuff, that Teresa is there at more like 3:30 or 3:40, not 2:45. John Leurquin sees a green SUV leaving. What does he care about Steven Avery? For that matter, what does he really care about Teresa Halbach. And he doesn't have -- he doesn't have a dog in this fight.

What he has to do is sit and stare out the front windshield of his truck, every day for half an hour, 3:30 to 4, quitting time, as he fills the LP truck. He has got nothing to do except look at the world. Filters out the school bus, filters out, you know, the cars he sees coming and going every day. That's common sense, that makes sense.

When something new goes by, it's not a heavily traveled road, he notices. Is he overselling the point, no. Can't say it's that SUV, can't say it's a Toyota RAV4. Looks similar, can't say who is driving it. Didn't see whether it turned right or left at the stop sign on Highway 147. You know, he's not gilding the lily, so to speak. He's not overselling what he saw.

So, to me -- you guys are the ones that matter -- but to me, that's fairly reliable stuff. It's reported to the police, candidly, when they ask. Lisa Buchner for that matter goes up to the barricade, that Saturday, says I have some information maybe you want. They interview her two days later, you know, the following Monday, when it's fresh in mind. And she tells them what she knows. Tells them what she doesn't know, for that matter.

So, you know, you got Bobby stacked up against Blaine, Lisa Buchner and John Leurquin, and it looks to me like the more probable time frame is 3:30ish that she's there. And if that's so, then burning garbage in your burn barrel at 3:45 is just burning garbage in your burn barrel. It's innocent. Bob Fabian smells plastic, so what. It's a white plastic garbage bag that, you know, Blaine sees.

And you got plastic in your garbage, you know, I'll bet you do, unless you live in town where you've got a nice blue recycling tub or something, and you separate that stuff out. But this doesn't look like much, if the time frame is different than Bobby Dassey has it.

So how about -- how about the 4:35 p.m. phone call to Teresa's cell phone, what my colleague referred to as the alibi phone call. And the State argues he is doing that to create an alibi, because he knows that will create a record on the cell phone bills, cell phone company records.

Okay. All right. I mean, first of all, it makes the *67 calls not very important, because they are going to create a record too. And if he knows a 4:35 call is going to create a record, then he also knows that the 2:24 and 2:33 call are going to create a record. But maybe more importantly than that, this isn't much of a alibi.

It's a cell phone, calling a cell phone, you can be anywhere, doesn't place you in any particular, you know, spot on the planet. It's not like you are at home in your kitchen, because you called on your land line, you know, with a 6 foot cord keeping you from going any further. It's a cell phone. It's not a good alibi, you know, it doesn't get you anywhere, or suggest that it's guilty behavior.

This call, also, draws more attention to you, not less. I mean, you are going to show up on the cell phone records. It is your cell phone you are using. It's not -- This isn't something you do if you are trying to alibi yourself. But if, while we're looking at phone calls and moving through Steve's behavior on October 31, you know, hey, there are two telephone calls the State hasn't talked much about yet, if at all, but they stipulate on this. They agreed. There are two phone calls from the Manitowoc County Jail to Steven Avery's land line.

He's got a cordless phone, it may even be in one of the pictures in the bedroom, so he can wander around. But it is, you know, it is a cordless land line phone, they have stipulated. These phone calls come in from his girlfriend, Jodi, from the jail. First one is at 5:36 in the afternoon, 15 minutes of talking, tape recorded. Investigator Wiegert has listened to it. And then another one at 8:57 p.m., tape recorded, then listened to by the police, 15 minutes long, talking to his girlfriend.

This is what somebody who's in the process of burning a body is going to be doing? Are you kidding me? You know, I mean, you think maybe you would have heard those tapes played if there had been something incriminating, or out of the ordinary about the 15 minute conversations with the girlfriend, that night, Halloween night? It's more just evidence of every day life, doing what an innocent person might well be doing. And that's how October 31 comes to an end.

Later that week -- and I, you know, Blaine Dassey tells you this, he didn't make a big point out of it, but he told you, and I want to remind you about that, later that week Steve Avery suggests to Blaine, maybe he wants to invite some of his friends over for a bonfire, at Steve's place. Blaine's in high school, high school kids, bonfire, he makes the suggestion. It never happens, for whatever -- I don't even know that Blaine explained why, but it just -- the bonfire never happens later in the week.

But, you know, if you had burned a body in your burn pit, or you even knew that there were bones in your burn pit, spread around, human remains, you are going to invite some high school kids over to have a bonfire and sit around the same burn area? I'm not. That doesn't seem to me that somebody who's guilty, that that's something he would do, an invitation he would extend to his nephew. A bunch of random high school kids, come on over to my make shift crematorium for a bonfire and stand around.

What does he do here, in terms of behaving like an innocent guy, or not. Well, look at the witnesses we called on his behalf. Now, all walks of life, many fewer witnesses than the State called, but as I say, all walks of life. And what struck me, at least, about the folks who testified for you, because we called them, is I thought to a person, these folks were natural, they were real.

They weren't swiveling in their chair to look at you and give you a talk, as if they were an old friend of yours every time they are asked a question. They are not advocating anything, as far as I could pick up. Or as I say, sort of selling you something, overselling something. They are candid on cross-examination, just as they were on direct examination. I thought, at least, that's what this group of people shared.

Was I surprised that we had to call the bus driver, rather than the State calling, to help you with the time frame that afternoon, yeah, I was surprised. But we did it, since they didn't. And now you have got that information.

But, you know, these -- these people rang true to my ear, at least. And it's your ears that matter.

So let me move to my second question: Can you believe the police? Can you believe the law enforcement folks who are so sure that Steven Avery's guilty? What do you see about their behavior before they are on the stage here? Well, look at what they say and do when they don't know that you are going to be listening and seeing.

Let's start with Andy Colborn, since I sort of started with him on November 3. He calls in, does a license check on Teresa Halbach's car. He says he thinks it was probably on November 3, not sure, but probably November 3, that he did that. But remember he's working on November 3, so he would have had his radio.

And it's Detective Remiker who says ordinarily you would use your radio when you are calling in a license check to dispatch. He uses his cell phone instead. The tape you hear is clearly a phone call, not a radio in. So I think it's probably more likely that this license check is November 4, when Sergeant Colborn acknowledges he was off. Didn't work on November 4. And you may remember, Mr. Kratz asked him, do you remember what you were doing on November 4, 2005. He says, yes, I do. I was off. I remember what I was doing. Doesn't tell you what he was doing, other than to deny he went to the Avery Salvage yard, or denied he had anything to do with planting evidence. But he is off.

And I'm not going to play it for you again, it's in evidence, but -- Let's see if this comes up. That's -- That's what you hear on the tape that we played.

MR. STRANG: Thank you.

So five minutes later, five minutes after Detective Jacobs called with the dispatcher, he is on the phone with Detective Remiker, or the radio, I don't remember now, but you got the tape in evidence. Of course, Detective Remiker does testify, and you may remember him, kind of presented himself as someone who thought they were barking up the wrong tree, that Steve didn't do this, when he testifies. That morning, just about an hour after the Sturms have first found the Toyota.

Okay. Other than the car, do we have anything else?

Not yet.

Okay. Is he in custody?

MR. STRANG: It's not who are you talking about, who do you mean by he.

Negative, nothing yet.

One pronoun, he, and these guys know who they are talking about at 11:35 in the morning. Are these folks acting in a way that seems good faith and honest to you, back then? Six days after this, Special Agent Fassbender makes the telephone call to Sherry Culhane at the Crime Lab, try to give her some direction. And, you know, she's holding herself out as a scientist, that's how she holds herself out.

Is Special Agent Fassbender asking for science, on the exhibit that Mr. Buting showed you? Is he asking for science there, for a good cautious, objective, let's see where the science leads us kind of thing, when he's asking, try to put her -- put her in his house or garage. That's not a very good fit, in my view, with the State's, counsel's argument here, when they submit evidence, they are not looking for a specific answer. Oh, really.

The memo belies that. The phone memo does. And Sherry Culhane, on the stand, herself, tells you, that by the time these buccal swabs are taken in November, 2005, from all kinds of people other than Steven Avery, members of his family, these are elimination samples. Elimination samples. We have already decided they didn't do it, we're just trying to eliminate if we find their DA -- their DNA anywhere.

Sherry Culhane, for that matter, had she followed the protocol on her testing, the bottom line folks, had she followed her protocol on the testing of that bullet found in March. She can't say it's Teresa Halbach's DNA. First time in her career, 23 years, first time, on the last chance to put Teresa Halbach in his house or garage, she deviates from the protocol and includes Teresa Halbach.

Now, it was just the control that was contaminated. It was just Sherry Culhane's DNA. That doesn't turn the evidentiary sample into having Teresa Halbach's DNA. Okay. All right. Fine. But the protocol presumably is there for a reason. Protocols are the foundation of good science. And the protocol says, if you have got contamination, you set that experiment aside and you do it again, you don't rely on that one.

Science ought to be reliable. It ought to be consistent. And it ought to be cautious, otherwise, it's not science. And the results simply aren't reliable. That's why you have a control. And when you get contamination, you now know that something has gone wrong with this.

And to say that the contamination is over here, but not over here, is a little like saying, I don't know, maybe no one even eats TV dinners any more, maybe they're microwave dinners now, I guess, from what I see in the grocery store. But whatever, however you heat this stuff up, when you pull off the plastic, or the tin, or whatever covers the meal, you know, and the little peach cobbler has a fly in it, in that little compartment, you don't eat the Salisbury steak either, okay. You know, this is -- this is not fancy stuff in the end. It's -- It is and should be common sense, at some level, in the end. But she deviates, for the first time in 23 years.

The end -- This continues, the end of January, 2007, bringing us up to six weeks ago. Now, the State goes all the way to Virginia, to Quantico, to get the FBI. Are they trying -- Is the FBI trying to root out possible police corruption? Are they concerned about the integrity, of policing in northeastern Wisconsin? Trying to find out if there's a bad cop or not? I think the decision is already made.

You have this, too, Special Agent Gerald Mullen of the FBI, memo to the FBI laboratory, this January 30th --

MR. STRANG: I would be more concerned about boring you. Mr. Buting did cover it. It's there.

But I want to say something about EDTA that Mr. Buting did not. Janine Arvizu, who is not a doctor, Mr. Buting misspoke, she didn't complete her dissertation. She did the other Ph.D. work. I want to make sure you got out of that what she had to tell you. And it's this, the FBI protocol that they put together in a couple of weeks here, is good for identifying and confirming the presence of EDTA. It is not designed for confirming the absence of EDTA. It has to do with the detection limits. The instrument has a detection limit and the method has a detection limit.

So, look, if you were interested in finding out whether your friend is at home, and the instrument you chose was a telephone, call him at his house, ring his telephone number, if he answers the phone, you have confirmed his presence with your instrument. He is there, you have called his home, not his cell phone, he is there. He's got to be, if he's answering his phone. You have confirmed his presence.

However, if your instrument is your telephone and you call his home and it just rings and rings, and it's not answered, you have not confirmed his absence. He could be in the shower. He could be in the basement folding the laundry, he could be in bed sleeping. He could be pouting and just not answering the phone because he sees it's you calling on the caller ID and he doesn't want to talk to you today. Whatever it is, you haven't confirmed his absence with the telephone. You haven't designed a protocol to get you to that.

Your method, in other words, of detection, isn't suited to confirming absence, only presence. If you like fresh baked hot apple pie, and I put you in a room and I blindfold you and we walk in, a fresh baked hot apple pie, your nose is the instrument. It has a detection limit.

A dog has a better instrument, lower detection limit, fancier instrument. He can detect less of the smell of apple pie than you can, but you have got this instrument to use. If it's within your detection limits, and the pie is, you know, slid on the table under you while you are blindfolded, you will detect it with your instrument.

However, if the method is no good, because we have got to consider that, you are not smelling an apple pie. Well, is the room too big, are the windows open, is the pie too far away, does the room smell badly of something else that's interfering with your instrument detecting the fresh baked apple pie? We have method detection problems and limits. Or is the apple pie, not fresh baked, but it's an 11 year old apple pie? You may not detect that either, with your instrument. I don't think Janine Arvizu was really telling you more than that. And, unfortunately, Dr. LeBeau was trying to tell you more than that and overselling his case.

Now, others who matter, in the law enforcement group who think Steve is guilty. Mr. Lenk and Mr. Colborn. They denied here, of course, but what are they doing, in 2002, when the evidence slip has to be signed for transmission of the hair sample and fingernail clippings, or whatever it is, to the Crime Lab, and the evidence custodian at the time, Detective Sergeant James Lenk, signs off.

Is he really, as he claims here, simply signing the form, giving it to Sergeant Shallue and allowing Sergeant Shallue to fill out the otherwise blank form? You are entitled to disbelieve that. Or at least to say he's not an honest evidence custodian if he is doing that at the time. He is begging to be fired, because he is not documenting what's going where. Or if he's just telling you here, to distance himself from that file in the Clerk's Office, you are entitled to consider that too.

Would Lieutenant Lenk lie, in the end? Would he lie, as a sworn law enforcement officer? Well, all I can tell you is, he did, twice, and you heard it. I have the transcript from the earlier hearing. Here he says he arrives at 2:00. When he's asked under oath before, it's 6:30 or 7, once when he's asked, and the other time he's asked, it's late afternoon. This isn't 15 minutes off, folks. It's under oath and it's a difference of four and a half or five hours.

At that time of year, November, 2005, it's the difference between broad daylight and pitch black. He was under oath, and he gave two very different answers to the same question, at two different times, under oath. He was the only witness, in five weeks, shown to have made inconsistent statements, under oath. Others made inconsistent statements and were shown to have. Blaine Dassey comes to mind. Scott Tadych comes to mind. Both of them are asked, at first, by the police, was there a bonfire, on Halloween, no, no bonfire. Later they get asked again, now there is a bonfire. In fact, Scott Tadych comes here and says big bonfire, flames to the top of the roof. Same guy, again, I showed, when first asked by the police, no bonfire. Closer in time to October 31, no, didn't see a bonfire that night.

That's inconsistent statements, but they are not under oath. They still, as the Judge instructed you yesterday, are something you can consider, consistency or inconsistency of a witness' statements, over time. Still you can consider those when you decide who you believe, and not under oath.

Blaine explained that a little bit. Explained his changes of his story. Well, the police kept asking him. They didn't like the answer, they asked him again. Got angry with him and his mother, at the restaurant, when they wouldn't reject Uncle Steve. Is that because Blaine is scared of Uncle Steve?

My recollection, yours will govern, there's 12 of you and one of me, but my recollection of that testimony is that the question was whether Blaine Dassey was scared, and the answer was something like, no, not really, but he used to boss us around. You will decide that.

But in any event, Lieutenant Lenk, by the time he gets to you folks, is telling you some really implausible things. Like, I had never been to Steven Avery's house. I have never been on the Avery property, but somehow, just out of habit, I turned right at the end of Avery Road, and I -- I -- I just happened to drive straight to Steven Avery's trailer. Okay.

So this -- You know, what they are doing and whether -- whether you think you can trust them back when they are not aware they are going to be observed or revealed later, is important in the same way what he does, back before he knows it's going to be played out to you, is important in assessing who you believe. Are they acting honestly? Is he acting like an innocent person would act, or might act?

It is important because it comes down to the bias in the end. You know, would, in the end, police officers plant evidence? And that's a hard one, you know. That's why it's helpful to say, boy, are they behaving honestly and in good faith up to then. Because in the end, would they plant evidence against someone. Now, you will have to decide whether you have a reasonable doubt about that, or whether, you know, we have shown that to you at any level, or not.

But, look, it is a matter of bias, if it happened. And what you critically, I think, need to understand, that if and when police officers plant evidence, they are not doing it to frame an innocent man. They are doing it because they believe the man guilty. They are not doing it to frame an innocent man. They are doing it to ensure the conviction of someone they have decided is guilty.

That's why you plant evidence. Other than in the strangest, you know, most abandoned of conscience sort of police officer, they aren't after framing an innocent person, they are after ensuring the conviction of someone they just believe is guilty.

So as you approach the whole concept of planting you have got to understand the bias that would drive it, not, you know, boy, they are out to get an innocent guy. It's just the opposite. It's just the opposite. But it's also just as corrosive to do it. Because juries decide guilt, not police officers who are involved in the hunt. You know, they get invested too, in the outcome, and in whom they suspect, who they think is good for something.

And, you know, the State pooh-poohs the idea that a civil lawsuit, for a whole lot of money, against the Manitowoc Sheriff's Department, would have caused anyone to so dislike Steven Avery that they would plant evidence against him. Well, look what the mere suggestion that they did plant evidence has done, in terms of a reaction here.

The defensiveness of the case that the State presented to you, the anger about the mere suggestion of planting evidence, the self-righteousness, the hostility, the trying to have it both ways with you. We trusted the Manitowoc people, they were skilled. They were honest. They were the best available evidence technicians. But we also had somebody watching. We were short of manpower. We needed them. But, in the first search of Steven Avery's -- first lengthy search of Steven Avery's house, on the evening of November 5, we got enough people that two of them can be taking photos. Two of them can be taking photos, in this little trailer, as you heard. You hear the State trying to have it both ways, here.

And in sort of getting at the bias that would drive a police officer, potentially, to plant evidence, it's this -- it's this need, this belief that he is not really innocent. He's guilty, he's got to be guilty. It's what you hear from Detective Jacobs and Detective Remiker, it's that quality. It's the sense that this is where this is going, three hours in, when all we have got is the car, on a big property with a whole lot of other people there.

It's the -- After five weeks of evidence and 501 exhibits, it's the State standing up and telling you it's clear. What in the world is clear and simple when it takes five weeks and 501 exhibits to try to show. And whatever this is, whatever, whichever way you come out, this case isn't clear and simple.

And that's where the civil lawsuit feeds in. It's not that it feeds in with bad cops. It feeds in with good cops, in the sense that it erodes, fundamentally, the sense of identity, we get the bad guys, we don't get the good guys.

And here it is, they got it wrong, that department got it wrong. Not only do they get it wrong, but the right guy is still out there and he commits another rape, Gregory Allen. This goes to my identity, if I wear that same uniform. Even if I'm aligned with these people, as you hear the sort of reaction from the prosecutors to this.

And now, you know, since -- since he really couldn't have been that innocent, he's got to be guilty of this one. He must be the right guy this time. So you -- you know, nobody means to do this, but you start looking around things that are inconvenient, that don't quite square up with the theory that he did it.

One example, and one example only, from the blood, Teresa Halbach's blood in her own car. If it were true, as the State now says, that Steven Avery shot Teresa Halbach in his own garage, killed her there, and if it were true that he then burned her in the area immediately behind the garage, why, why is her bloody head ever in the Toyota at all. It's farther to take her back to her car than it is to take her around the corner of your garage, to the burn site, if that's what it is.

So the State sort of ignore's the fact that if Steve Avery had done it, and done it in the way they say, her blood wouldn't be in the car. The bloody hair stain wouldn't be there. It is there, of course, so it suggests that somebody did have to use the car as a transport. She wasn't burned there -- or wasn't killed there, but that's inconvenient. You guys have to be, in the end, if you're going to do what you can do here, more objective than that.

You can't overlook the inconvenient, because it doesn't fit. You can't overlook, for example, in deciding whether Lieutenant Lenk dropped the key on the floor, rather than finding it honestly.

You can't overlook the fact that all her other keys are gone, the three or four other keys that Tom Pearce described, and which common sense would tell you would be on your key ring, and they are not there. It's the kind of thing that's inconvenient, but you can't overlook it, even if they do.

The overlooking of the inconvenient, really, I think, reaches its peak, if you will, here in the State's opening statement, where knowing that human bone fragments are found, at least in the burn barrel, a long way from the burn area behind Steve's garage. And maybe, in the quarry, to the south.

Knowing, in other words, that their own experts will say, yeah, bones were moved here, the State never tells you in its opening statement, there's a second place, and maybe even a third, where human bone fragments, burnt human bone fragments, are found. And we have no evidence that it's more than one person. You don't get told that, it's inconvenient.

But it also is true. And that's why, in the end, it does become so important to decide, burned here and a few moved elsewhere, or burned somewhere else and most of them dumped here, behind Avery's garage. That's why that says so much about his guilt or innocence, in the end. Look, I have got to sit down. Which no defense lawyer ever likes to do because, in the closing argument, because the prosecution gets to stand back up. In a sense, they get the last word, in closing argument.

I'm not going to get to answer the passion, or the anger, or the replies that will come, when I sit down. I got to turn him over to you and let them have the last word. And as hard as that is on me, the greater burden is on you. The greater burden is on you. Because you have got to try to do the things you can do here, and you have got to find a way to live with the things you can't do, but would like to do here.

You have got the great burden of reaching a just, fair, and conscientious decision. And so, in a sense, I'm -- in a sense I'm going to rely on Judge Willis to give my rebuttal to their rebuttal, in a sense. Because I think he will tell you, when all is said and done, that you won't be swayed by sympathy, prejudice, or passion.

And I think that will be an answer to what's about to come. I think he will, Judge Willis will, I think, in the end, tell you, charge you, to be very careful and deliberate -- deliberate in weighing the evidence, and to keep your duty steadfastly. And that will be sufficient answer, for me, to what's about to come.

So I ask you, please, give it your full and fair consideration. Do that critically here, as citizens of Manitowoc County, where we stayed to pick a jury, where we stayed to pick the 12 of you, the 13 of you. And get it right. Get it right.

Steven Avery has not been proved guilty of murdering or mutilating the corpse of Teresa Halbach. He's not been proved guilty of that, beyond a reasonable doubt. It's because he is not guilty. And that's what I'm asking you to say in getting it right.