How Making a Murderer's Steven Avery Could Be Freed Without a Trial

From phone records to forensic tests, Avery's attorney is using the latest investigative techniques to keep her client out of the courtroom

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How Making a Murderer's Steven Avery Could Be Freed Without a Trial

Defense attorney Kathleen Zellner, who took on Steven Avery's case in late-January, has said that her goal is not to secure her client a new trial — she wants to see him exonerated and his conviction vacated. "I told [Avery], 'I'm a sprinter. I'm not a long-distance runner,'" Zellner recently told Newsweek. She took on Avery's case shortly after he filed his appeal in January. There's no guarantee that a judge will agree to hear it, but introducing evidence that clearly absolves Avery of the murder of 25-year-old photographer Teresa Halbach would make a retrial unnecessary. Zellner has been involved in the exoneration and release of 17 falsely convicted men, and has recently been making confident suggestions on Twitter that she can prove Avery was falsely convicted.

But what evidence can she and her team uncover to exonerate him outright? Zellner's strategy hinges on proving at least one of the following three claims:

Phone records show Teresa Halbach left Avery property alive
Halbach's cellphone records, in particular the brief conversation she had with AutoTrader saying she was on her way to the Avery property, were used by the prosecution to corroborate their timeline for the murder. However, Zellner alleges that cellphone tower pings tell a different story about Halbach's last location before her phone was shut off. According to Zellner, the last call Halbach's phone received pinged a cell tower located 12 miles from the Avery Salvage Yard. "It's absolutely shocking to see cellphone records that were part of the discovery that were turned over to the defense ... document her route leaving the property," Zellner told Newsweek. "It's really hard to figure out how in the world did the defense not seize on this. It would have created reasonable doubt."

Cellphone tower evidence is not an exact science — call records vary from carrier to carrier, and from year to year, so Zellner's claim will depend on expert testimony. Digital forensics investigator Jerry R. Grant — who is not consulting on the Avery case, but recently testified about the reliability of cell tower evidence at a hearing for Adnan Syed of Serial fame — told me that corroborating Zellner's claim requires more documentation than is currently available in the evidence file. "I would need to plot all of the cell towers in the area at the time to even attempt to determine what could and could not have happened," Grant explains. "Zellner will also need to put the phone in Halbach's hand and that typically is accomplished with corroborated outbound calls." Even if Zellner is correct that the last tower pinged was 12 miles from the Salvage Yard, Grant continues, "Remember the cell tower itself may be 12 miles away but the phone doesn't necessarily have to be right under the cell tower to access it."

Evidence was planted
Like many of Avery's defenders, Zellner believes that Manitowoc County Sheriff's Department officers, ostensibly recused from the investigation, planted physical evidence directly linking Avery to Halbach's murder. That, she tweeted on March 2, was the "easy part," but "avoiding scientific detection 10+ yrs later" will be more difficult. Doubling down on a tweet sent out in early February — "One thing perps & planters have in common is leaving their signatures at the crime scene. Science always transcribes" — Zellner is confident that her own tests will uncover proof that her client was framed. "They used forensic science to convict [Avery], and I'd be using it to convict them of planting the evidence," Zellner told Newsweek.

The detection of the preservative EDTA in the blood found in Halbach's car could prove, once and for all, that it came from a vial of Avery's blood held in the county clerk's office. During the 2006 trial, an FBI expert asserted that he had tested three blood samples from Halbach's car and did not detect EDTA. However, the FBI's test was devised at the behest of the prosecution, and executed in a rush; if an independent test of the blood does now detect EDTA, it would likely, at the very least, force a retrial. If Zellner can prove police planted evidence used to convict Avery, all of the physical evidence they collected could feasibly be called into question and create reasonable doubt. 

Zellner has also reportedly ordered advanced Luminol testing, which is used to detect blood that can't be seen during a visual examination, even after the area has been cleaned and decades have passed. According to Access Hollywood, Luminol was sprayed inside Avery's home and garage, where prosecutors claim Halbach was killed. If the results show that there is no blood inside the property, Zellner will be able to argue that Halbach's murder could not have occurred there. The results of any forensic tests Zellner orders will be disclosed to both the defense and the prosecution, however, so she runs the risk of bolstering the case against Avery if, for example, the Luminol test comes back positive for blood and a follow-up DNA test matches it to Halbach.

Someone else is guilty of the murder
"We've got access to documents the public doesn't have," Zellner told Newsweek. "We've got all the police reports. We can see exactly what they did and did not do. And it's a lot more about what they did not do." She points to the unusually limited DNA testing done by investigators as evidence that the police focused on Avery from the start and never considered other possible suspects. Just 12 people, in fact — and only members of the Avery, Dassey and Halbach families — underwent examination.

In accordance with Wisconsin's Third Party Liability law, Avery's attorneys in the original case, Jerry Buting and Dean Strang, were denied the opportunity to present evidence that someone else could have killed Halbach. Zellner told Newsweek that she and her team have other suspects in mind, and all of them are men who knew Halbach. "I'd say there's one, leading the pack by a lot," she said. "But I don't want to scare him off. I don't want him to run." Zellner also drew renewed attention to the fact that Halbach was receiving mysterious phone calls in the weeks before she died. An acquaintance of Halbach's told investigators that the calls started in the summer of 2005, then stopped briefly before starting up again about three weeks before the murder. The police never attempted to investigate or trace the calls.

Halbach's ex-boyfriend Ryan Hillegas has been the source of much Internet speculation. He was given special access to the Avery Salvage Yard during the investigation, and was seen during news interviews with mysterious cuts on his hands. Hillegas testified about last seeing Halbach the night before she disappeared, and told Buting during cross-examination that he never felt like a suspect.

Investigators also didn't use Halbach's phone records to trace her activities or personal contacts in the week prior to her murder. In her Newsweek interview, Zellner referenced a recent discovery making the rounds on Reddit suggesting that the night before her death, at 11:44 p.m., Halbach placed two calls to a number allegedly belonging to a guy named Christopher McKenna. A man named Christopher McKenna was arrested late last year in Arizona for soliciting sex with a minor and subsequently violated a no contact order.

At trial, Detective Mark Wiegert was asked specifically about a man named Bradley Czech, with whom Halbach had a "personal and business relationship." Whether that relationship was romantic isn't clear, but at the time of Halbach's murder, Czech was newly divorced and the subject of a restraining order filed by his ex-wife.

Of course, none of these details link Hillegas, McKenna or Czech to Halbach's murder. But they do serve as three examples of men in her life that police appear not to have considered, let alone eliminated, as possible suspects in her murder. If Zellner can uncover evidence that points to another viable suspect in Halbach's murder, while at the same time debunking the evidence used against her client, it will be that much harder for prosecutors to pursue Avery in the event that the conviction is thrown out.

Dean Strang and Jerry Buting recently embarked on a nation tour, in which they discuss the Avery case more in depth. Watch here.