'Making a Murderer': Steven Avery's Lawyer on the Evidence Left Out

Jerry Buting discusses bones, bullets, burn pits and the details left out of the documentary.

Steven Avery Defense lawyer Jerome Buting refutes prosecutor Ken Kratz's claims that important evidence was left out of 'Making a Murderer'
'Making a Murderer': Steven Avery's Lawyer on the Evidence Left Out

The Netflix documentary Making a Murderer was made over the course of 10 years. The murder trial at the center of the series took place over six weeks. The episodes themselves total just 10 hours. Rolling Stone spoke with defense attorney Jerry Buting about some of the evidence that was only briefly covered in the documentary or left out entirely.

There were some pieces of evidence that the series moved past so quickly  that viewers didn't always get a sense of their significance. For instance, did a theory ever emerge about why part of Teresa's pelvic bone was found in the quarry?

You're right. Mr. Kratz [who prosecuted the state's case against Steven Avery] has complained that big portions of the state's case were left out of the documentary. First of all, that's not true; the majority of their arguments were presented. But there are also defense arguments and defense evidence that wasn't covered. Not to any fault of the filmmakers, but we're talking about a six-week trial. They had five or six hundred hours of tape that they had to condense into 10, so certain decisions have to be made. But the issue about the bones — the bones were really a very important issue.

They're really an important issue because where the body was burned should have determined guilt or innocence alone, ignoring everything else, because if the jury believed or understood that this body was burned elsewhere then the fact that there were the majority of her bones were found in his burn pit should have proven that he was not the killer. Because nobody would burn a body somewhere else, gather up their bones and then go and dump them in their own backyard. That's ludicrous, right?

Yes.
Now, the state argued that most of [the bones] were burned there, but they have no explanation — never offered in either trial [an explanation] — as to why, if, in fact, the body was burned right outside Mr. Avery's garage, why would any of the bones move? And why were only a few of them moved? Why would you find some of them — that were clearly identified as her bones — in a burn barrel over by Bobby Dassey's house, for instance? And why would there be human pelvis bones found a quarter-, a half-mile away in a burn gravel pit? It's not like there were other missing women whose pelvises they were concerned might, you know — [authorities were not concerned that those bones] could have been bones from some other person.

There was a burn pit at the quarry? A third burn site?
There was a burn site where they found what the state expert believed were female human pelvic bones that were [Teresa Halbach's]. But, you see, the thing about bones [is] — unless there's tissue attached, they can't do a normal DNA test that would prove [with] a very high probability who's it is. In the burn pit, they did find a portion of one bone that had some of that tissue on it, and that's how they made an identification of Teresa Halbach. The bones in the burn barrel, likewise.

But the bones in the gravel pit — they were not able to identify whose bones they were exactly, but they were pelvis bones. They appeared, based on the expert's opinion, to be human and consistent with a female — I can't remember if she said "young" female — and most importantly, they appeared to have the same type of degree and pattern of burning or calcination, as they call it, as the ones that were found in the burn barrel behind the Bobby Dassey house and the burn pit behind Steven Avery's house.

So the other thing that wasn't [addressed at trial] — and the state really had no explanation for it — [was]: If Avery was the killer and he burned the body behind his garage, why would he move just a few of them, and put them in his burn barrel, and a few of them and put them in some quarry a quarter-, half-mile away? You would think that if you're going to try and dispose of evidence, you're not going to leave the majority of it right outside your garage, right? They never offered anything to explain that, and, in fact, in my closing argument I challenged the prosecution to explain to this jury. The way it goes in Wisconsin is, because the state has the burden of proof, they get to finish the closing arguments with a rebuttal argument. So they make their opening closing statement, and then the defense goes, and then they can follow up with their final. [In my closing statement, I said] "He's going to get up here in a few more minutes and I challenge him to explain to you why these bones were moved." Because there was absolutely no doubt that the bones had been moved, certainly to the burn barrel and possibly a third location as well. The state never even offered [an explanation about] that; they completely ignored it. Didn't even address it, and neither did they [address it] at the Dassey trial, I believe.

The other thing that wasn't covered in the documentary is, we presented an expert who's from Canada, and he had never testified for anybody but the Crown, the prosecution, before. He was really a world expert on finding cremains outside and in various locations [where one might] try to hide and dispose of a body. And he testified consistently with what we had found in the literature, which is: to burn a body takes either extremely high heat, or a very long, sustained, moderate medium-high type of heat, and it would be very difficult to burn a body in an open pit — an open fire — particularly to the degree that these bone fragments showed. At a crematorium, for instance, they use extremely high heat, and it still takes several hours.

Here, you would have had to continually stoke a fire over, and over, and over for 12, 14, 16 hours — something like that — in order to produce this [type of effect]. And there was no evidence that any fire [like that] had [taken place]. There was a bonfire, but there was no evidence that there was any intense fire like that for such a long, sustained period of time.

So we argued there were other, better spots where the bones could have been burned and really that these were inconsistent with having this burning take place right outside of his garage.

Would the barrel have been able to create that amount of heat? Was that something that was discussed?
There was some talk about that, not much about the burn barrel itself. The state really just tried to ignore that. One of the things that I looked into was [the idea that] maybe, if she had been dismembered, perhaps the bones in the barrel were just her arm, or a leg, or something that had been cut off separately, and burned in the barrel. But the fragments that were found in the barrel came from all over the body. They had a diagram of the skeleton. They came from the shoulder, the toe, the leg, the arm — it was a complete mix. It was more consistent with what we thought had happened, which is that the body was burned elsewhere, scooped up into this barrel, dumped on Avery's property, most of it, but then some remained in the muck — sort of just a mix of bone.

In terms of degree of heat, again, you would need a very long, sustained degree of heat and burn barrels don't generate that kind of heat. And someone would have to be constantly stoking it, and turning things over, and refueling, refueling, refueling.

So the bones were a very important part of the case that we thought pointed towards, at a minimum, reasonable doubt and that's something that didn't get a huge amount of coverage in the documentary.

Another detail that was kind of glossed over in the documentary was the fact that it appeared that voicemails had been deleted from Teresa's phone.
Yes.

Was that something you wanted to introduce at trial, that you thought might be able to create more doubt that Steven Avery was guilty?
Yes, and that's part of a broader question. In a pre-trial ruling, the judge denied us the opportunity to directly point the finger of guilt at one or more possible suspects, and we thought there were other possible suspects — people who had access, opportunity, could have done it. But the judge ruled, "Well, you can't prove that these other individuals had a motive to do so." And we said, "Well, wait a minute: the state doesn't have to prove the defendant had any motive, that's not a requirement, so why should the defense be required to prove the specific motive of a third party before we can even show the jury that there could have been someone else that may have done this?"

Because, in a very high-publicity case like this, that was what I thought was going to be the biggest problem. The jury would be asking, "Well, if he didn't do it, who did?" So, we were not allowed to direct evidence, but we were allowed to raise [questions]. 

And part of the argument [we made was] that law enforcement failed to properly, independently investigate this murder. [We showed] things that they didn't do that should have been done to show a sort of tunnel vision, and rush to judgment, and all of that. And that's the only reason that we were allowed to do any discussion about other possible suspects, or about missing voicemails and things of that nature — to try and show, "Look, these are the kinds of things that objective, unbiased law enforcement would do."

Anything in particular?
The thing that never made sense to me was: there was evidence that her friends had been calling and her voicemail was giving a message saying, "This mailbox is full." There was no more space, so they couldn't leave messages. Well we used the — I think it was Cingular Wireless at that point — to show that the data capability of her mailbox was not full when they looked three or four days later. So, if people were getting those messages — and there was no dispute that they were — then somebody had deleted some messages in order to free up the space that they later saw was there.

Then, I don't recall exactly how this developed, but I believe it was the morning of November 1st or November 2nd, and she wasn't reported missing to the police until the 3rd. Perhaps the morning of the 2nd there was an indication that somebody had called in and actually listened to or accessed the voicemail box and that was very important, I thought. Their theory was she was dead on the 31st. Well, who had access to her voicemail and why would somebody have listened — I think it was 8 a.m. on that morning — when she isn't reported missing for another 36 or more hours. Nobody came forward and had any explanation for that.   

This seems like something important that's missing.
After she was supposedly dead, someone accessed that phone mailbox — nobody admitted who it was that early. Because she was not reported missing by her roommate, her boyfriend, ex-boyfriend, her family, her brother — anybody — until late in the afternoon of November 3rd.

So here, 36 hours earlier, we have someone listening to her voicemail. Why? Either she's not dead and she's listening to them herself — which of course didn't sit with the state's theory — or somebody else is doing that. Now, think about this: she was just a missing person at that point. As a matter of fact, she wasn't even missing, or she hadn't been reported missing.

But if your sister or your ex-girlfriend or your roommate or whoever is missing, one of the things you would think that law enforcement is going to want to do is listen to those voicemails. Somebody may have called her and said, "Hey, I'm coming over, Teresa. I'm coming over, I'll be there in a half-hour," or whatever. It might give clues as to who may have seen her or where she might have been. You know, "Teresa, why don't you meet me in Green Bay at such and such bar." I couldn't fathom any reason why anybody who truly wanted her to be found would erase messages from someone's voicemail box.

We couldn't go beyond that at the trial, but that clearly was something that should have been investigated if they were being objective.

It wasn't discussed in the series, but in recent interviews Ken Kratz has said that ballistics testing proved the bullet found in Steven Avery's garage, with Teresa Halbach's DNA on it, was fired from Avery's gun. Can you explain how that might have happened?
OK, well here is something that didn't also get very much play in the documentary, but it's not actually called "ballistics," although it's within that field generally. It's called "tool mark evidence." And that is the ability of experts to look at a shell casing, or a bullet, and determine whether it may have come from a particular firearm, OK? And, the theory has been that when, let's say, when a rifle is manufactured, there are — even though it's the same model, and even if it comes off the same factory line the same day — that there are these supposedly microscopic slight differences in the barrel, bore, that might show up in a bullet. And so if those tool marks, those markings in the patients on the bullet match the very unique characteristic of a gun, then you can try and say that the bullet came from that particular gun. But there are different degrees and levels of these characteristics.

It turns out that this particular .22 that was found — there was more than one 22 found, by the way; there were also same make, same model, .22 rifle found in the Bobby Dassey house — and there was testimony that that particular rifle was the most popular, the most sold rifle in the world. Millions and millions and millions of the same make and model. I forget right now what it was — Smith & Wesson, or whatever the brand was. And, what they determined with pretty clear precision, I believe, was that a bunch of shell casings that were found in the garage had been fired from that gun, because the shell casing when the hammer strikes the back of the shell it leaves a little indentation and, you know, there's some wiggle room on that too — you know, scientists nowadays are challenging a lot of these toolmark evidence opinions that experts are presenting. But, that really didn't prove much, because there was also shell casings all over that junkyard, including outside the garage, and you know, these people shot rabbits, they sighted their rifles for deer hunting, shot at the cars. You know, that's just there were dozens, if not hundreds of shells all over the place.

What would've been more probative was that if there was an actual bullet that they could prove beyond any reasonable doubt had come from that gun and that gun and no other gun in the world, and unfortunately the science isn't that good. This single bullet that was recovered from the garage had her apparent DNA on it was a flattened bullet, it was not a pristine bullet where you could see the, clear tool marks. And so, you know, Mr. Kratz wants to argue that there was proof that that bullet came from the .22 rifle that was found in Mr. Avery's trailer, but that's not really the case. It was similar, but they could not completely exclude any other gun.

See 10 questions we still have about Making a Murderer below. Find out some of the answers and read more here.