Attorney for Steven Avery, Kathleen Zellner, filed a motion for post conviction scientific testing on her client’s behalf on Friday, August 26, 2016. According to the motion, “Mr. Avery has already completed a series of tests that will conclusively establish his innocence in conjunction with the additional forensic tests he is seeking. . . “
The victim, Ms. Halbach, was murdered on October 31, 2005. The motion details a strange series of events, with supporting documentation, that establish some of Ms. Halbach’s voicemail messages were deleted after her death on October 31, 2015 but before her disappearance was reported on November 3, 2005.
The motion also provides documentation that Ms. Halbach’s vehicle was seized by the Manitowoc County Sheriff’s Department on November 3, 2005, yet strangely was “discovered” in the southeast corner of the Avery salvage yard on November 5.
The motion points out conduct by the DNA analyst at trial that is not uncommon and one of my personal pet peeves. The motion states, “Although no presumptive blood testing was done by the State which would suggest whether the DNA came from blood, their expert nonetheless testified that Mr. Avery’s blood from his cut finger had masked Ms. Halbach’s DNA profile.” Whether Ms. Halbach’s DNA was even on the key is speculation. Whether the DNA matching Mr. Avery was blood is speculation. Whether the blood came from Mr. Avery’s finger is speculation. And speculation that cannot be proven by science. It also appears there was testimony about Mr. Avery’s “sweat DNA” being found on the hood latch of the victim’s car. The motion correctly points out there is no such thing as “sweat DNA.”
Mr. Avery, through his attorney, is seeking to obtain the original swabs for testing. Some of these swabs are sought not for DNA testing, but for screening to determine whether the DNA on the swabs is from saliva or skin cells. Because they are asserting the evidence was planted, if it is determined that the so called “sweat DNA” is actually from saliva, this could lend credence to the argument. According to the motion, “skin cells are anucleated and karatinaized and buccal cells are nucleated and lack keratin.” The defense seeks similar testing on the now famous key to Ms. Halbach’s car, found in Mr. Avery’s home.
Mr. Avery also seeks “new and improved” DNA testing on a variety of items in an attempt to identify the true perpetrator. DNA testing has certainly gotten more sensitive over the past 10 years, so a sample that did not yield a result in 2006 may very well provide a profile today. (Although, if the defense theory is correct, that the evidence was planted, this may well yield additional planted evidence.) Mr. Avery requested DNA testing on items that have not previously been DNA tested. This includes burnt material found at an alternate suspect’s residence.
The defense asserts advancements in radiocarbon testing now make it possible to determine whether the blood evidence from the RAV-4 was taken from a 1996 blood vial taken from Mr. Avery and planted. As a backup in case the radiocarbon testing doesn’t work, the defense seeks permission to have an expert, Dr. Horvath, analyze the cells, using a method that can provide an age estimate of the person the cells inhabited at the time the cells were removed from the body. This is based on the premise that natural aging would produce “variable methylation patterns,” thus, if the blood was planted from a 1996 sample, this would be provable by this method, according to the motion.
In what is likely the most shocking request, the motion requests known fingerprint exemplars of Officers Colborn and Lenk for comparison to print previously unidentified inside the victim’s vehicle.
Christine Funk, JD, is a District of Columbia based writer. She has extensive experience in criminal law and procedure. She has written and presented on forensic science issues on 3 continents. Funk has been published by the National Clearinghouse for Science, Technology and Law; the Journal of the American Association for Justice; the Journal of Forensic Sciences; and Science. She has also authored chapters in three books; and a publication for the National Institute of Justice. She enjoys cooking, travel, and writing.