L'America: What Really Happened to Theresa Halbach?

Netflix is trying something new. This time, a documentary spanning ten hour-long episodes about a murder case. Seems like an incredibly long time for a single case, considering that other shows present the “same” content in a few minutes and then move on to the next. I thought for sure it would end up being boring. Instead, I found it gripping, a true blueprint for a new brand of show, not unlike when Truman Capote jump-started the true crime fiction genre with his In Cold Blood.

Before you read on, you must watch the documentary. This is not a review, this is not a presentation of facts, this is simply a reflection on the show. If you haven’t watched, you will not be able to follow. Also, spoilers abound. Finally, once I realized search engines presented the content here to a wider audience than my usual, I tried to clean up the text and will continue to do so.

First, on the issue of murder. Watching the show I had a very strong instant reaction that no one seemed to follow, namely that Theresa Halbach may have committed suicide. If any of the actors in the unfolding drama had found the body and decided to dispose of it as it was disposed of, this would make a whole lot more sense than either the prosecution’s or the defense’s theories.

My reaction was prompted by three independent facts. First, Theresa Halbach is introduced with a video in which she tells us that, no matter what happened to her, she wanted everyone to know she had been happy. I know this type of video too well. In Catholicism, suicide is considered a mortal sin, a variant of murder. The consequence of suicide is the same as that of murder: the victim (in Catholic thinking, the perpetrator) cannot be buried in consacrated soil, forcing the family to bury their loved one outside the cemetery. To avoid that, a person would leave evidence behind that indicates suicide was not an option. Catholics sometimes do that without thinking about suicide, but many suicidal Catholics with strong family ties are very keen on evidencing their happiness and lack of suicidal thought.

The second item that is reported but unexplained is that voicemail messages had been deleted from her phone answering system after she disappeared. Nobody admitted to doing it, but friends reported that logging onto her voicemail was easy for anyone that knew her well enough, since she used her birthday as password. This would allow anyone from the family to delete any voicemail messages that would indicate she was suicidal, or that provided content that would upset her enough to send her over the edge.

Third, and most surprising to me, was her brother’s first reaction on TV. Before anyone knew what happened to her he said something to the effect that the family just wanted to find her effects so they could start to move on. In other words, his first reaction was that she was dead (since all there was to find were her effects) and that it didn’t really matter who had done it (since all there was to do was move on). At that point, for all he knew, she might have decided to drive off to California to become a beach bum. Even if he suspected that nothing like that was in character, he still might have expressed the desire to find out what happened.

That left me with the strong impression that she not only could have committed suicide, but that her own brother had that instant suspicion, as well. There are a few items that would require verification to make the suicide hypothesis more plausible: Was Theresa or her family devout? Was the gunshot wound consistent with suicide (it seems to be, considering the evidence points at impact at the temple and the back of the head)? Did Theresa have access to the type of weapon with which she was shot?

If all of that is the case, the possible scenario changes dramatically. After the putative suicide, the story bifurcates: either Steven Avery finds the body, realizes that he’s going to be implicated at a crucial time in his lawsuit, and decides to dispose of it; or law enforcement finds it, realizes it’s easy to frame Steven Avery for murder, and runs with it. Either way, the case turns from murder to mutilation of a corpse. That’s something much more plausible than the notion, implied by the defense team and justly ridiculed by prosecution, that police killed Theresa Halbach to frame Steven Avery.

Note: At this point, I think it is important to emphasize this is just a hypothetical reconstruction. The possibility is certainly open that a completely different third party killed Theresa Halbach (Steven Avery presented possible alternate killers in his appeal, for instance). Also, the party that killed Theresa Halbach may also have disposed of the body. What this theory offers is a chance to explain the events in the framework of the documentary evidence.

In general, the option that law enforcement disposed of the body in a way that would implicate Steven Avery for murder seems much more probable than the disposal by Avery. For instance, there is the issue of the phone call in which one deputy phones in the license plate and car model information for verification. The deputy shouldn’t have known both unless he was standing by the vehicle. This would have happened after Halbach’s disappearance (she was already reported missing), but before the car was found on the Avery property. That is indication that law enforcement might have found the vehicle before the search party found it independently (and possibly in a different location).

There is the complete lack of traces of Theresa Halbach in the location of her putatitve murder in the Avery compound. There is no DNA in the trailer or the garage. While law enforcement and prosecution hint that Avery would have had five days to clean up after a murder, that’s not nearly enough for an unskilled person. At the same time, there is DNA evidence of Avery inside the car in the form of blood stains, but no other evidence. The entire (putative) crime scene is a strange riddle: the car key is found in plain sight, but only on the 8th search; the key contains traces of Avery’s DNA, but of nobody else (presumably not even Halbach); Avery has a cut on his finger from which the blood stains could stem, but there are no fingerprints, indicating he would have had to wear gloves; Avery is said to have cleaned up the murder scene of all DNA of the victim, but manages to forget the car key; somehow, in a cleanup that rid the scene of any DNA, he would have forgotten to remove blood stains visible in plain sight in the car.

Worse, despite knowing there was a clear conflict of interest in the case, such that it prompted the county to ask neighboring Calumet County to take over the investigation, the key items of evidence were all found on the property either by local law enforcement, or after local enforcement had accessed the location immediately prior to the finding. On that fact alone, reasonable doubt should have been created.

There is more: the victim’s body was resting in the trunk of the car at some point. If Avery had killed Theresa Halbach at the compound and burned her outside his bedroom, he wouldn’t have had the faintest need for the car. Also odd, the car was found at an outlying row of cars in the compound, crudely hidden behind plywood and branches that, if anything, made it stand out. Why would any murderer in their right mind put the car there after taking such precautions to remove evidence from the building?

Also of concern, the location of the body. Bone fragments were found in a burn pit behind the bedroom, but also strewn about around the pit. A few bone fragments were found at the bottom of a barrel. Some bone fragments, finally, were found at a burn site off the grounds in an adjacent property. That suggests that the body was burned at the off-site pit, piled into the barrel, then moved in the barrel to the Avery property and dumped into the pit.

There is the non-trivial matter of the evidence kit blood sample. When retrieved, the outside and inside seals had been broken and the vial with blood had been tampered with. A hole the right size for a hypodermic needle was present. The defense theorized that the blood stains inside the car would be explained by this vial, an argument with legs, as they say. After all, the kit had been under the custody of the county the entire time and there had never been any need for the blood sample to be taken out.

The prosecution argued that the blood from the sample would contain a preservative, EDTA. They went on to test the stains for the preservative and found nothing. The documentary shows testimony of an FBI official who asserts that no EDTA was found in the stains tested. When asked whether there is a possibility that the test may not have been sensitive enough, he asserts that’s not the case. When asked about the three blood stains not tested, he asserts that he’s certain they would have returned the same result. Which is a pretty odd statement to make, considering that for all he knew, the other stains could have been ketchup.

The chemical analyst who testified for the defense brought a little scientific reality to the matter. She said that the test had no controls, and she couldn’t tell what the limits of detection were. She also said that she couldn’t make a statement about the samples not tested, because that’s just not the way things work.

In the end, we are faced with an FBI officer that seems to have willingly overstated the validity of the test to the court, at least based on the footage shown. I am surprised he wasn’t pressed by the defense in the matter, but the testimony of the chemical analyst may have been that rebuttal.

The role of villain in the documentary is uncontested. While the judge talks about Steven Avery as “evil incarnate,” the impression we are left with is that law enforcement took that role in real life. This FBI officer seemingly willing to overstate facts under oath for the furtherance of a case of no relevance to the FBI is one example, however small. The very real and giant evil comes in the form of the confession of Steven Avery’s nephew, Brandon Dassey. Not as in the content of the confession, almost certainly a complete fabrication, but in the way it was obtained and then presented.

The special prosecutor, Ken Kratz, emerges out of the footage with his image particularly tarnished. This is long before it is revealed, in the end, that his law license was suspended and that he harassed a victim with a barrage of text messages. I believe the moment I became suspicious of his motivations came when he presented the Dassey confession as pure facts at a press conference. Such a wild story would require at least some corroboration of facts, one would think, if for no other reason as to not look like a fool if it turned out to be the action of an attention seeker or prankster with a very dubious sense of humor.

At some point, Ken Kratz has a moment of reckoning. He cannot plausibly prove that Theresa Halbach was killed in the trailer as the Dassey confession states, so he places the murder in the garage. There possibly isn’t enough evidence for a conviction in that location, either, but at least it’s not as ridiculous as inside the trailer. You would think that, at that point, the charges against Dassey would be dropped. If the murder happened in the garage, the confession, which places the murder in the trailer, is worthless. Since the confession is the only thing that ties Dassey to the murder, there is no reason to go to trial in his case.

Instead, that’s exactly what happens. Not only is Brandon Dassey tried for the murder of Theresa Halbach, he is convicted of committing the exact murder scene he describes in the confession, including rape.

It is at this point that my faith in jury trials was severely shaken. How twelve reasonable people could decide unanimously that there was no reasonable doubt a person committed the rape of a woman based solely on a confession recanted several times is beyond me. There was no evidence whatsoever aside from the defendant’s statements that a rape actually occurred. There was also no reason to convict him of rape, since he was convicted of murder, anyway. Again, there is no doubt that Theresa Halbach was dead. But how could there possibly be independent verification that sexual assault occurred?

The documentary goes to great length to show how the confession was obtained. In particular, it casts doubt on the statements in court statements by Ken Kratz, who opened by saying that Dassey recounted details unknown to anyone but the perpetrator. In fact, these details were not only unknown to anyone but the perpetrator, they were entirely unverifiable. More than just unverifiable, they were easily disprovable.

I think the most obvious example is the slashing of Theresa Halbach’s throat. No matter what the circumstances, blood splashing out of a slashed throat would be impossible to clean up to the level of detection. Theresa Halbach’s body, with the slashed throat, would have had to be removed from the trailer, as well. The scene described in the confession, in fact, is a bloodbath that could have come out of a slasher flick (as Brandon Dassey states at trial, it was actually from a slasher book he read). That anyone would believe this description, let alone law enforcement, is beyond belief.

The documentary makes much of the circumstances under which the confessions were obtained. While that’s laudable, it’s important to remember that the sequence of events described is simply so implausible as to defy human experience. It doesn’t matter how many times Brandon Dassey affirmed and then recanted the “facts.” It doesn’t matter that he was visibly coerced by law enforcement and his own defense team. It doesn’t really matter that he told his mother on the video footage from the interrogation room that the investigators “got to [him].” What matters is that he lied in his confession because the physical evidence does not support the story.

As the footage unfolds, we can see how the imagery was concocted. The investigators know that Theresa Halbach was shot in the head (the proximate cause of death, presumably). They want Dassey to say it, because it’s the only thing the public hasn’t been told. So they suggest he tell “the truth:” they know something happened to her head. Brandon, what happened to her head?

Brandon tries to please. First he says they cut her hair. That doesn’t please the investigators, who press on. Brandon says he slashed her throat. That doesn’t please the investigators, either. He is at a loss, he doesn’t know what else to say. Both statements make it into the confession, both statements make it to the press conference where Ken Kratz presents them as plain facts, well knowing they aren’t independently verified. Finally, the investigators lose patience and tell Brandon the answer they want to hear: she was shot in the head. The question is, who did it. Brandon says, “He did.”

What is truly heartbreaking is the realization, after the fact, that Brandon would have said almost anything, because he just wanted to be released. He is wondering whether he’s going to be able to make it back to school to finish an assignment. He just confessed to rape and murder, and he’s worried about a school assignment. At the very least it is at this point that the investigators should have stepped back and realized there was something terribly wrong.

Instead, they were blinded. By what, one can only speculate. One assumes they were happy they had found at the very least a lead in the case. Also, they were probably as frustrated and bored as Brandon was after hours of guesswork. Maybe they were proud of having found the break in the case.

Brandon repeated his confession. He repeated it to his mother and to his cousin, Kayla. The mother was not called to testify, at least not as far as the documentary is concerned. She is recorded as having an ambivalent stance, in turn accusing Steven Avery of dragging her son into this matter and realizing that accusing Avery will only make things worse for Brandon. Kayla, on the witness stand, recants her statement that her brother told her all about the murder. For all we know, Brandon possibly repeated his putative fabrication to many people, and child psychologists would probably back me up that it’s a common strategy to repeat lies to make them come true, in a sense.

There is one last item to mention. That is the odd role of Theresa’s brother. He seems to have formed a very strong opinion early on that the prosecution’s story was correct, to the exclusion of all other possibilities. He seems to have decided that Avery and Dassey brutally murdered his sister and continues to state that throughout the documentary. That’s slightly odd, because he does have an interest in the truth that prosecution doesn’t have. America’s justice system is adversarial: the prosecution’s job is to present the best case against the defendant, who’s after all defended by an attorney. Theresa’s brother has no interest in the conviction of innocent parties and the fact he so strongly sided with the prosecution, becoming a cheerleader for it, might one day come back to haunt him. It may well turn out that Avery and particularly Dassey are innocent of the crime of which they have been convicted. Not only would Mr. Halbach find himself without anyone to blame for his sister’s death, he would have dishonored her by helping ensure the conviction of the wrong parties.

So, what do I believe a possible sequence of events might have been? Theresa Halbach died on Halloween day 2005 outside her Toyota RAV4, from a possibly self-inflicted gunshot wound to the head. She may have been found by law enforcement, possibly detective Colburn, who after all phoned in the car information before having reason to know it. Realizing that there was nothing to do for her, a plan may have been concocted to use the body to frame Steven Avery, whose case against the county was arguably going to succeed.

Given that the body was off-site, contaminated with evidence from the location, and clearly that of a suicide victim, things would need to be re-arranged. The body would have been moved from its location to a gravel pit nearby, where it would have been burned. The blood sample from the old evidence kit would have had to be retrieved and blood from it planted in the car. The Toyota RAV4 would have had to then be driven to the Avery compound in a location that couldn’t be seen from the trailer and crudely hidden from view. The remains of Theresa Halbach would have been dumped in the burn pit outside the trailer. This would have probably occurred after the bonfire at the Avery home and possibly been prompted by it, since it was visible far and wide.

Days later, the RAV4 was found on the property. The blood stains inside were found, tying Steven Avery to the case. Also, Steven Avery was immediately a prime suspect, since he was the last person to have seen Theresa Halbach alive (a coincidence that is really hard to discount, requiring either a better explanation or denting the suicide/plant theory). At the earliest possibility, law enforcement would have had to plant the car key in Steven Avery’s bedroom. That local law enforcement (Lenk) would have had to find the key instead of just leaving it on the floor for someone else to find would have been necessary because that would have explained possible DNA found on the key chain.

Much later, when the bullet that killed Theresa Halbach was found, it would have been placed in the garage, possibly because it was the only other plausible location for a murder. At this point, though, the lawsuit against the county was already settled and additional planting of evidence would not have been necessary.

Logic dictates that either the death occurred close to the property, or (at least) two people would have to be involved. This is because, If Theresa Halbach’s body was transferred to the burn site in the RAV4 and the RAV4 was then left behind at the Avery compound, someone would have had to pick up the driver at the compound. Also, the RAV4 was almost certainly not used to transfer any burned remains, or there would be traces in it, requiring a second vehicle for the theory to work.

Steven Avery could still be responsible for the death of Theresa Halbach. He could have killed her off-site and left her body there, and the scenario above still be accurate. Brandon Dassey’s involvement, on the other hand, is with virtual certainty fiction as described by him. In fact, his simple, uncoerced statement that describes the dull every day of a school kid seems a lot more plausible than any story he may have come up with later.

How is it possible, on the other end, that two separate juries would have believed there is no reasonable doubt Steven Avery and Brandon Dassey committed the grisly murder they were accused of?

I recall from the 80s and 90s criminal trials against defendants accused of the most depraved horrors. Those cases were characterized by the same combustible mixture of circumstances: personal revenge started the accusation; suggestive techniques created testimony that “revealed” moral horrors; the media ate up the story and publicized it far and wide; prosecutors realized what boon they got from publicity and ran with it; convictions were secured almost invariably thanks to impressionable juries. On review, many of those convictions were eventually overturned and suggestive investigation techniques blamed for the children’s testimony (sounds familiar?).

The 90s were not that far away in 2005. In particular, forensics were not widely talked about (Bones, in fact, would premiere mere weeks before the killing). Still, it seems odd that the same mistakes were made.

In particular, it is entirely unclear why evidence found by an agency that had already declared a conflict of interest would be admissible, and not automatically raise suspicion.

The way Brandon Dassey was turned from a witness into a co-defendant raised eyebrows, as well. In particular, the form his own (appointed) lawyer’s investigator made him fill out left no doubt as to the options in the case. Instead of asking whether Brandon was guilty or not guilty, he was to declare himself sorry or not sorry. Not only that, he would receive help only if he declared himself sorry, as the investigator states. While that may have simply been an internal tool for the defense, it might have had the potential of directing an impressionable client to say things that he didn’t mean, and that were not true.

(I should mention that the Internet has taken a very, very dim view of Dassey’s lawyer, with several (anonymous, of course) comments calling for his disbarment. I do not believe the documentary makes a very strong case one way or the other.)

How could a confession obtained and recanted several times become the cornerstone of a prosecution if it isn’t backed by factual evidence? If, in fact, the factual evidence clearly implies the confession is untrue?

How could a prosecutor (Kratz) present a confession not backed by any factual evidence as true facts in a press conference? The documentary shows the statement made on TV, and there is no introduction as to the source and the lack of corroboration. This would have created, in both the media and subsequently the public, the impression that the events presented were factual and not, as they were, speculative. (As a side note, this morning (1/8) I saw Nancy Grace on her show saying that Dassey couldn’t have known the “forensic evidence” of the last words uttered by Theresa Halbach unless he was there, while the events unfolded. Of course, the “forensic evidence” consisted of Dassey’s confession, making it a weird form of circular reasoning.)

I assume there are legal reasons why the jury seated was local. In a case like this, though, where media tainted the jury pool so visibly, shouldn’t the jury have been selected from a location without media coverage of the events? I cannot imagine anyone living close to the killing not having been prejudiced against the defendants.

As a meta-point, I do not understand the point of a unanimous verdict in a criminal case. As I remember from politics, all consensus-based systems suffer from the problem that they empower the stubborn. Since everybody has to agree, it takes only one single person to block the proceedings. Something like that might have happened here, as initial show of hands indicated that the original inclination was 7-2-3 (not guilty-undecided-guilty) to find the defendant not guilty.

In conclusion. The American justice system is robust and powerful and certainly much less corrupt than any I have personally encountered elsewhere. Juries, in particular, are incredibly helpful in reducing the influence of government. Under certain circumstances, though, juries can be easily swayed by popular opinion and media. That seems to have been the case here. The evidence against Steven Avery and Brandon Dassey should not have been sufficient to convict either, as the documentary seems to argue, because the prosecution conclusively failed to prove beyond reasonable doubt that the defendants had done anything to the victim.

In particular, the prosecution’s case suffered from contradicting evidence and theories that were mutually exclusive. That the juries in the two cases believed the prosecution, as other juries have done in similarly publicized cases, may indicate that under certain circumstances, juries should be seated differently than they are now.

In the matter of the case itself, the evidence presented seems to point to a death separated in time and actors from the disposal of the body. That is, the death occurred independently of the disposal, and may have possibly been caused by the victim’s suicide. Whoever found the body may then have decided to dispose of it in an incriminating manner or in a manner that ended up incriminating Steven Avery.

The obvious problems with the evidence presented (in particular, the call that indicates law enforcement found Theresa Halbach’s vehicle much sooner than the search party, and knew who it belonged to, as well as the tainted blood sample kit) seem to imply local law enforcement may have been a part to the disposal. This is reinforced by the issue that local law enforcement found key items of evidence while there was an obvious (and self-declared) conflict of interest.

None of that seems enough evidence to initiate prosecution of any person, in law enforcement or otherwise. It provides an alternate theory, though, that much more plausibly explains the sequence of events and evidence than the prosecution’s theory as presented by the documentary (more evidence might have been presented in court and not in the documentary).

In any case, there seems to be no shred of proof that Theresa Halbach was sexually assaulted before her death, nor that her throat was slit, nor that she begged for her life, nor that she was tied to a bed, aside from a child’s recanted confession. That this confession was presented as factual truth seems to have colored the impression of many. But the factual evidence indicates that the bloodbath scenario it describes is fictional, casting doubt on the entire confession.