Fast losing all confidence in the justice system

My wife and I made the mistake of getting hooked on the Netflix series, Making A Murderer, this weekend. Never watch sausage being made, and never take a look inside what the police do to make a case. It will ruin your trust in the system.

There were a couple of things that just infuriated me.

  • There were two clear cases of scientific dishonesty that ought to have simply been thrown out, or never even been presented to the jury.
    • They tested a bullet for blood, and announced that it was from the victim. But the lab tech also disclosed that the negative control was contaminated! My jaw dropped at that. You don’t get to make that claim when your test was invalidated by error.
    • To disprove that the accused’s blood at the crime scene was not planted from a sample in police custody, they declared that the FBI, using a new test, had found no preservatives in the blood, therefore the sample couldn’t have been planted. Again, you can’t do that. What were the limits of detection? The best you can do is say that the test failed, and without a lot of evaluation of the samples and the procedure, you can’t state how likely their answer was.


  • One of the prosecutor’s tools was this horrifically detailed story of the murder, which they claim to have gotten from a confession by the accused’s nephew. But we have the recording of the “confession”, and it’s appalling. The nephew is this lost, confused, slow-witted teenager, and the police lead him through the story. He didn’t provide any of the purported details. They did.

    The prosecutors didn’t exhibit a speck of shame at going on and on about knifings and stranglings and shooting and torture, with the only evidence being a fable fed to a not very bright kid. Is that a general character trait of prosecutors? I wouldn’t know.

Just to counterbalance the dismaying unprofessionalism, incompetence, and corruption of the police, though, I have to say I hope that if ever I’m accused of a crime, I want the defense attorneys, Dean Strang and Jerry Buting, on my side. They, at least, seemed to be well aware of the inconsistencies and falsehoods in the prosecution’s case. I don’t know whether the prosecutors weren’t very bright or were just doing their job to paper over the failings of their arguments.

I don’t know whether it’s the charitable assumption to guess that the prosecutors just didn’t care about the truth.

It’s also a shame because the victim was murdered, and my impression is that the Manitowoc police were more interested in pinning the blame on the accused than in actually figuring out what happened.


  1. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    There’s a reason it’s called the Criminal Justice System.

  2. EigenSprocketUK says

    And this is why you’re a scientist and not a prosecutor. You’d let things like pesky facts get in the way of a good case.

  3. tccc says

    Don’t listen to Serial S01 and the Undisclosed podcasts either, they detail another appalling case of investigator and prosecutor misconduct.

  4. Ogvorbis: failed human says

    . . . my impression is that the Manitowoc police were more interested in pinning the blame on the accused than in actually figuring out what happened.

    “A bird in the hand is worth two in the bush.”

    The police are ‘evaluated’* by the community, by the mayor/county commissioners/whoever controls the purse strings, by the supervisors, based on how many arrests, do the arrests stick, do we get good press for getting bad guys off the streets. Additionally, the District Attorney is ‘evaluated’** based on convictions, especially in high-profile cases such as murder. The prosecuting attorneys are also ‘evaluated’*** based on convictions, especially in high-profile cases such as murder. So a suspect is likely to remain a suspect, despite lack of evidence, despite evidence to the contrary, despite implausibility, because having a major suspect, or a suspect who has been arrested, because finding another one would require lots of effort, more resources, and a willingness to say to those evaluating the officer, the prosecutor, the system, that, oops, we screwed up.

    * How much will their budget be, do they get the new patrol car, do they get five more officers, etc.

    ** Will I get re-elected the voters on election day, will I be able to use my success here as a way to jump to bigger political positions.

    *** Do I

  5. Kevin Anthoney says

    To be fair, after the police had all been taught how to drive armoured personnel carriers, there probably wasn’t enough in the training budget for all that geeky stuff.

  6. says


    Is that a general character trait of prosecutors?

    More often than not, yeah. Mike Nifong comes to mind right away. And the Central Park Five. And as if all the cops who unfound rape reports weren’t bad enough, the reports that do make it through are most often declined by a prosecutor, who doesn’t do more than glance over it, if they do that much. And a whole lot more. People who have never been immersed in the criminal justice system, from cops on up, have no idea.

  7. slithey tove (twas brillig (stevem)) says

    Could this be a NETFLIX production simply because it is extra-ordinary (literally). That this is a single example of how the system CAN fail, not that it does so consistently.
    that reads like apologia.
    sorry, just felt it worth throwing out there for discussion.
    this is all _sincerely_ a question, not just rhetorical-JAQ’s

  8. Becca Stareyes says

    Slithey Tove @ 8

    If there were this many problems in one case, that suggests that there might be other problems with cases in the area, at the very minimum.

  9. says

    Yup. As an article over on (which I am too lazy to dig out right now) said: if the Innocence Project can prove that a large percentage of murder trials, which got serious attention from everyone involved, were unfair, then you have to admit that most common criminal trials must be absolutely packed with injustice.

  10. says

    A few years ago, I served on a jury in in the King County (Washington) Superior Court, for an attempted bank robbery. The defense came in that the accused was schizophrenic and had been off his meds, but was back on them now and doing much better. Two of the jurors had experience with mental health issues: one was a special ed teacher, and one was a secondary caregiver for a schizophrenic aunt. The watched the accused, and told us in no uncertain terms that the defense was a flat-out lie. We found him guilty.

    Afterwards, the jury had the opportunity to chat with the defense attorney and prosecutor. The special ed teacher called out the defense, noting that he lied in open court. The attorney just shrugged and said he was never under oath. The teacher laid into him with a vengeance, starting with something like “Scum like you are why lawyers have their bad reputation.” Then she saw the prosecutor smirking, and went off on her even worse. The teacher wanted to know how many innocent lives she had already destroyed to make her quota, and how many more she will destroy to get her next promotion. The look of guilt that crossed the prosecutor’s face spoke volumes.

    So if you really want to lose faith in the justice system, fulfill your civic obligation to be a juror. As bad as it is merely watching the sausage being made, it is worse when you are one of the gears doing the grinding.

  11. L. Minnik says

    The combination of being judged on an ancient system of collecting statistics and no real oversight can easily lead to some form of corruption.
    For example, in some European countries, the police have various methods of not taking on cases – like finding false reasons why there is no justification for the case or ‘making’ it be too late. Poor funding and incomplete education don’t help.

  12. Sastra says

    This all took place in the general area in which I live and today there was an article in the local paper which interviewed furious, defensive residents of Manitowoc (which is actually a rather nice place to visit.) There’s been a lot of silly and unfair out-of-town on-line hatred expressed towards things like the historical society, restaurants, and the city police (who are not the same as the county sheriff department.) Fair point.

    And yet again and again, people who insisted that Avery was absolutely, positively guilty as hell and the documentary was a hatchet job admitted that no, they had not actually watched the series. Nor would they. They didn’t have to and didn’t want to. They were there when it happened, see?

    Oh, dear, that’s just such a bad sign. I hear it all the time from advocates of alternative medicine, God, the paranormal, and conspiracy theories. “I know what I know.” The other side? The other side is close-minded to the truth. Why would they want to read stuff that’s only going to try to close their minds?

  13. Bernard Bumner says

    Slithey Tove @8,

    Netflix has systemic corruption within the American justice system covered too (not necessarily by their own productions). See Kids for Cash or The House I Live In.

    Of course, they also cover specific miscarriages of justice, or justick poorly sering the deprived. See West of Memphis, The Thin Blue Line, The Central Park Five, Cropsey, Nick Broomfield’s documentaries on Aileen Wuornos, any of Louis Theroux’s prison or crime documentaries.

    It is hard to escape the idea that the proliferation of cause celebre cases of injustice reflects anything other than a justice system which fails routinely, not only because of prejudice and racism, but because law enforcement is fragmented and under-resourced, and certainly poorly trained.

    The results can be seen in prison demographics and in the outcomes of the various Innocence Projects. I suspect that these documentaries only scratch the surface.

    Injustice is too easily found if looked for. The system is broken.

  14. says

    Are we at the point yet where we could replace the criminal ‘justice’ system with an AI? There’s too much evidence that shows that juries take physical attributes and whatnot into account, and that a preponderance of witnesses lie. The whole stinking edifice is bullshit; an AI-based system would be faster, fairer, and more reliable. It would also – because it’s not emotional – be able to have a long-term memory; it’d be a lot harder to tell the AI judge you were speeding because you were trying to get your cat to the vet: “oh? this is the 5th time you have offered that excuse.” And now we find that the FBI’s crime labs may as well be a “roll 3 D20” kind of arrangement. The current ‘justice’ system is not simply “Garbage In, Garbage Out” (GIGO) it’s “It’s All Garbage” (IAG)

    I also like the idea of lawyers’ work being optimized for clarity to the matching algorithms, instead of emotional impact. In fact, a side benefit of switching to an AI-based system is that lawyers would be revealed as useless except for doing what they really need to do: negotiating and clarifying terms of deals.

    I envision a world in which ‘jurors’ serve by filling out questionnaires pertaining to anonymized cases, spit out by the AI.
    Re: Case #1834716163,
    The defendant says they were speeding because they needed to get their cat to the vet. The defendant does not own a cat. Please tick all the boxes below that you agree with:
    [] Defendant is lying
    [] Cat was consumed by a grue
    [] State police officer embezzled cat
    [] Other (may delay case for review) _________________________________________

    Ok, that’s being silly. More realistic would be:
    Please enter the probability you assign that the defendant is lying: 0-100

    The AI would spit out a conclusion, by possibly asking samplings of ‘jurors’ about specific questions – there would be no need for jurors to sit through the entire case, or even see the witness. The preponderance of cases would be handled based on probability.
    AI: Be advised, 99% of the time that defendants have introduced cats into their defense, they have been found guilty. I am just saying.

    Nobody could possibly make the argument that an AI could be less fair than the current system. I wonder how wrong an AI would have to be, to be as unfair as the current system. 10%? 20%?

  15. Knight in Sour Armor says

    It shows up in media for public consumption too…

    Just how many times does Seely Booth from Bones lie to suspects in order to gain information? Considering he’s supposed to be a paragon of virtue…

  16. grumpyoldfart says

    I was being questioned by the Australian police about fifty years ago. One of the cops said to another, “How many break and enters have we got on the books?”

    “About twenty Sarge.”

    “Well this bastard’s got three of them,” said the copper trying to intimidate me.

  17. Muz says

    I think science and lab practice on the witness stand would be an endless nightmare. Not just in this case, but in pretty much every instance it’s used.
    As mentioned this show, Serial s1 and it’s offshoots, The Staircase and and its aftermath, the West Memphis 3 case etc etc are a horror show for the use of scientific evidence. But looking at the way those cases were handled I suspect its nothing out of the ordinary.

    Once these things meet the adversarial system they are going to get chewed up and spat out. A good lawyer can question everything into relativistic goop, A bad one can have not the slightest clue about it and their powerpoint presentation mangle the whole thing (or do it on purpose so the jury takes a certain reading). A scientist on the witness stand can trip themselves up, come across badly. A charismatic quack could be elevated to the level of sainted expert. A judge might allow something bogus, but disallow something pertinent. A lawyer might decide the stuff is too complex and drop it all together. And then if some hard to comprehend expert evidence makes it through all that the judge or the jury can just ignore it.
    The only real standard is who is more convincing, by any and all definitions of the term.

    Never mind this case with its corruption and malpractice, the whole thing doesn’t bear thinking about sometimes.

  18. komarov says

    Re: Marcus Ranum, #15:

    if (guilty) {
    else {

    A sufficiently advanced AI probably wouldn’t even need to bother with evidence or testimony. Alternatively, I could recommend Red Dwarf’s Cassandra as the supreme arbiter of justice with a very direct approach towards crime prevention. Just don’t get on her bad side.

  19. microraptor says

    Aren’t something like a minimum of 6-10% of death row inmates demonstrably innocent of the crimes they were convicted of? It wouldn’t surprise me at all if the percentage of innocent inmates with lesser convictions was even higher.

  20. doublereed says

    @15 Marcus Ranum

    Computers are not exactly well known for having good judgement. In fact, that’s kind of what they’re most terrible at. They certainly can’t be the judge in the case.

    Also, the AI would be “more reliable”? Please. Software development is terrible. The last thing I would trust is a software engineer to be reliable. Glitches, security flaws, and programming obscurity are endemic to the whole field and would not make anything even remotely reliable. And worse than that, because it would be relying on algorithms vaguely understood by the populace, it would make it more difficult to recognize the problems in the system. So yea, I could certainly make an argument that an AI would be way, way worse. If anything, it would be more like introducing that Chinese “Sesame Credit” system to the law system.

    If anything, computers need to be babied way more than humans when it comes to matters like this.

  21. doublereed says

    I mean, you look at the system now, and we can clearly see all the horrible terrible things that are going on once it is shown to us. It’s disgusting. But at least we can fix it. We can make evidence inadmissible, we can enhance protections to defendants, we can fix police intimidation tactics, etc. etc.

    For an AI, it would be way more obscure and difficult to fix. It would be based on complex algorithm that we would have to decide whether or not to trust.

  22. Beatrice, an amateur cynic looking for a happy thought says

    Besides, isn’t fantasizing about AIs in regard to this topic just again diverting the focus from fixing a corrupt system now to making up something completely different that may or may not work at some far away point in time?

  23. Nerd of Redhead, Dances OM Trolls says

    Micro raptor #21

    Aren’t something like a minimum of 6-10% of death row inmates demonstrably innocent of the crimes they were convicted of? It wouldn’t surprise me at all if the percentage of innocent inmates with lesser convictions was even higher.

    Data from Innocence Project.
    Illinois had more death row inmates exonerated than executed before a moratorium took place, which was later made permanent by the state legislature abolishing the death penalty.
    Major problems found were an over reliance on jailhouse hearsay (reduce your own sentence for making false claims), and lack of state appointed attorneys with skill/resources in death penalty cases.

  24. tbtabby says


    In shows like that., the suspect is always guilty and will continue to commit crimes if not convicted, so anything done to ensure that conviction is considered to be justified.. I worry that films and TV shows like this have given people a false idea of how law enforcement should work; we’ve got a Supreme Court justice using Jack Bauer as an example of why torturing suspects is okay, after all.

  25. doublereed says

    Well, I think Marcus was just messing around.

    But of course, Ed Brayton also has had so many blog posts that demonstrate that our justice system is broken at every conceivable level, and that it’s assured that many innocent people will be locked up or killed. It’s like @10 Vicar said: Death Penalty cases have much harsher scrutiny to them that other cases, and the Innocence Project has shown that they have disgustingly horrible track record. So non death penalty cases are probably significantly worse.

    And what’s makes it even worse, is when cops don’t even bother with certain cases like harassment and such. The whole fact that we have to deal with “entrapment” at all should make everyone extremely uneasy about what a cop’s job is supposed to be. If anything, cops should be a relatively neutral party in a trial, at least from an institutional perspective.

  26. Akira MacKenzie says

    I remember seeing the local news reports when Avery was released. At the time, I was willing to chalk it up to small-town cop incompetence/lack of respources gone wrong. When Avery and his nephew were accused, my right wing father claimed that he had been guilty of the first assault all along and proved various civil liberties groups were full of shit. If you were sent to prison, you MUST be guilty.

  27. slithey tove (twas brillig (stevem)) says

    Mentioning AI brings to mind an episode of ST:Voyager where 7of9 started delving into the copious database of Fed history. This led her to construct elaborate conspiracy theories based on this catalog of hard data. The episode went on to demonstrate that the theories were an inevitable result of having TOO MUCH data available. While not absolutely correct, still makes (at least to me alone) hesitant to turn over “justice” to pure AI. ~unless carefully monitored and evaluated continuously.

  28. slithey tove (twas brillig (stevem)) says

    Even Obama has commented on this case. Noting, that despite all the petition for pardon, since Avery was convicted by a State court, Federal pardon are inapplicable, so “would if he could, but he can’t”

  29. says

    slithey tove @ 31:

    Even Obama has commented on this case.

    Yes. Now imagine all the cases which don’t command presidential attention, nor the attention of a documentary film maker, or the attention of anyone at all.

  30. says

    And, I shouldn’t have to add to mine at 32 that the poorer you are, the worse it gets. And the less white you are, the worse it gets.

  31. Nerd of Redhead, Dances OM Trolls says

    And, I shouldn’t have to add to mine at 32 that the poorer you are, the worse it gets. And the less white you are, the worse it gets.

    That was noticed by the committee that investigated the Illinois death penalty. And one of the reasons the death penalty was deep sixed by the legislature. No way to make if fair to all, especially those rich white folks.

  32. says

    Obliquely related perhaps but over the last few years there have been a number of instances of forensic tests previously accepted by the FBI – fiber, hair and bite marks id, etc. that are no longer considered absolutely or sometimes even very reliable at all. There have also cropped up several instances of incompetence and even fraud and perjury from police forensic lab technicians.

    It seems astounding to me that in all the articles I have seen on these cases I don’t recall it ever being suggested that the introduction of double blind procedures in the testing would greatly limit the possibility for error in many of the tests. Even the FBI apparently does not test this way!

    Is the ignorance of scientific method really so widespread?


  33. doubtthat says

    I spent a couple of years working with a clinic that provided legal services to indigent clients on the South (and West) Side of Chicago. I saw some fucked up shit – the kind of widespread corruption that’s now coming to light.

    I then spent the better part of a decade working criminal cases on and off near a military base. Caught a few murders.

    I have never seen or heard of anything like what I watched in the last episode. The way Dassey’s attorney and his investigator worked to force his confession. I mean this as literally as possible: if attorneys, especially public defenders, are in the business of blatantly and directly working against their client’s interest to the benefit of the prosecution, our legal system will fail completely.

    Un-Fucking-Believable. I cannot understand how the hearing where they revealed the back room dealings didn’t result in a new trial and the immediate sanctioning, including disbarment, of everyone involved.

  34. unclefrogy says

    until we are observed and monitored on a continuous basis by computers I do not see how switching from a people based system to one based on computer systems will make any difference in the long run there will just as easily be errors and corruption creeping in through the human’s who will be supplying the data that the AI will use to make it’s decision.
    uncle frogy

  35. colinday says


    Now, now, Newton was a brilliant scientist who never let that get in the way of prosecutorial misconduct. See Newton and the Counterfeiter.

  36. dorght says

    Binge watched this on Netflix last night. Still have no clear idea of their respective degrees of guilt or innocence and skeptical to make that call on this somewhat one sided documentary. What I am very clear about is that this documentary is a primer on the many widespread abuses and failings of the system.
    I would suggest this book:
    Unfair: The New Science of Criminal Injustice by Adam Benforado
    I really liked his hope that in the future people would look back on our system and think it as ludicrous as we see tossing the accused in the water to see if the sank or floated. Additional it makes the point that the bad actors seldom perceive that what they are doing as wrong, at worse just stretching the bounds to serve their perception of justice. Very good book overall.

  37. says

    All you need to know about the American criminal justice system is that if they would have to close five out of every six prisons across the country just to get the prison population down to same level as the European Union’s.

    One in every 35 adults in America is under some form of court supervision.

    The entire system is rotten from one end to the other.

  38. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @Slithey Tove, #8:

    Could this be a NETFLIX production simply because it is extra-ordinary (literally). That this is a single example of how the system CAN fail, not that it does so consistently.

    Yes. Absolutely. It is an extra-ordinary case, and this is an example of how the system CAN fail. It does not provide data (and I doubt it could) that this case is “typical”.

    What makes the system criminal, IMO, is that there is no consistent correction mechanism. There are so many cases that aren’t just messed up in one big way, but in hundreds of tiny ways. Then there are all those cases that result in a convicted man (almost always a man) being turned free after years if not decades in prison where we find out that it was hundreds of tiny things and multiple big things. And there is always a hero in those stories. Some group of law students, some law professor, some appellate lawyer working pro bono, some somebody that just wouldn’t give up and clawed at the system til the secrets and shameful errors escaped.

    You never hear about a junior prosecutor or a newly elected DA that heard that someone has been claiming innocence for years and decided to read the original police reports or prosecutors files, check the original disclosure forms, or send out an untested DNA kit just to dot some i’s, cross some t’s, do the due diligence so that people can have some confidence. That’s never how this shit comes to light.

    When 99% of the miscarriages of justice are brought to light by ordinary, post-facto due-diligence by police and/or prosecutors and the heroic advocate fighting the system has a hard time doing anything heroic because prosecutors turn over materials, don’t fight DNA tests, etc…

    THEN there might be cause to believe that the system itself isn’t fucked up. But when the system can’t catch its own errors (or its own bad actors who fail to disclose evidence to the defense or coerce confessions, etc.), it is by definition impossible to have outsiders systematically catch those errors.

    Thus we don’t know now how many cases go badly, how many investigations or prosecutions are unethical. That should scare the shit out of the cops and prosecutors. But it doesn’t: not generally, not even frequently.

    So no, we can’t say this case is typical. But it should shock you to your bones that we can’t say it’s atypical – at least of cases that go to trial (it is atypical in that it gets to trial).

    I don’t need to know how many cases go horribly, horribly wrong to have the low opinion of the CJS that I do. All I need to know is that cases do go horribly, horribly wrong, and catching those errors is [almost] never common due diligence on the part of the offices responsible for the malfeasance.

    If I were prosecuting the prosecutors, I’d call that willful blindness.

  39. hiddenheart says

    slithey tove (twas brillig (stevem))@8: Someone linked to Illinois data above. To go with them, I highly recommend reading Scott Turow’s book Ultimate Sanction. He was a successful prosecutor before turning to fiction, and invited to be part of the Illinois panel that reviewed the death penalty in practice there. He writes clearly and movingly about how he ended up completely rejecting the death penalty, and vigorously campaigning for the panel’s recommendation that it be abolished, where in earlier years he’d routinely recommended it. His book combines careful presentation of evidence with open discussion of how it felt to go through the process and realize that he had to change his stance.

  40. vytautasjanaauskas says

    It’s really simple. They have a job to do, statistics to improve and quotas to meet. If the paperwork is fine they don’t give a single shit about justice. Justice is purely accidental to that profession. If the system is set-up in the way that their work coincides with justice – fine. Otherwise they don’t give a shit.

  41. EigenSprocketUK says

    @ColinDay #39 — interesting stuff, and I wish I had the time for it right now I did find an interesting write-up at Greg Laden’s blog (2012) about Newton and the Counterfeiter which outlines the book, the research, and introduces me to a whole side of Newton’s life I didn’t know.
    Maybe the best we can say about Newton-as-prosecutor was that he was following the accepted prosecutorial practises of the time. Weak apology, I know. But if the book also says that Newton-as-presenter-of-evidence was knowingly misleading/misrepresenting/crooked then that’s quite a shock. I don’t know if the book goes so far.

  42. mostlymarvelous says

    Marcus Ranum

    Are we at the point yet where we could replace the criminal ‘justice’ system with an AI?

    My own view is that, rather than computers, the US system would benefit from having people involved in policing and courts completely separated from electoral processes. To someone like me, an Australian, the idea of having police chiefs, prosecutors, district attorneys, judges, sheriffs or anyone else with legal and administrative power being subject to the whims, fancies and prejudices of voters is simply bonkers.

    These are either professional or management positions (or both) which ought to be filled by people selected *entirely* on merit criteria – legal knowledge, experience, demonstrated competence. Not door-knocking potential voters nor sweet-talking political allies or donors nor carrying out your duties with one eye on your re-election prospects being enhanced or damaged by the process or the outcomes.

    I know that the Westminster system of separation of powers used in commonwealth countries doesn’t apply in the USA, but shifting job selection away from voters and into the hands of properly conducted selection processes seems a much more sensible first step.

  43. says

    The 1980’s in Australia saw Lindy Chamberlain wrongly convicted and sentenced to life imprisonment for the supposed murder of her baby, Azaria. Lindy claimed that her baby was taken from her tent by a dingo, (the Australian native dog). The baby’s body was never found and the only physical evidence they had was some recovered clothing The conviction was based on highly suspect forensic evidence, a supposedly bloody hand print on the baby’s clothing and the presence of fetal hemoglobin forming a spray pattern under the dash panel of the car. Probable teeth marks from a dog on the clothing were dismissed. The claim was that Lindy had held the baby upside down in the car and cut the baby’s throat with a pair of scissors.
    No bloodstained scissors were produced. Complicating her defense was the fact that the Chamberlains were Seventh Day Adventists and the sensationalist media had a field day hinting that it was some bizarre religious sacrifice.

    When the defense wanted to challenge the fetal blood evidence on an appeal they were told that all samples and results had been destroyed after testing. A clear breach of rules for handling evidence. However the blood evidence was overturned when the manufacturers of the test reagent said that it was not designed detect fetal hemoglobin and comparative tests showed that the false positive was caused by a reaction with sound-deadening paint used on that model of car. Lindy was eventually acquitted and released after serving several years in jail. Lindy was pregnant at the time of her conviction and gave birth in prison and was almost immediately separated from her new daughter.

    An original inquest had concluded Lindy’s version of events was true but the the government decided to pursue the matter further and went shopping for “expert” witnesses who produced the suspect evidence used at a second inquest to frame the case against her. Several years later the baby’s outer clothing, (a jacket) was found in the desert. A new inquest was called and the original inquest finding was restored.

    Several years ago I worked in a lab which did occasional forensic work for the police. Standard procedure was to receive samples collected by the police with the police “version” of events. The implication was that they hoped the forensic testing would confirm their version. One case involved a murder where the victim had been kicked to death on a beach Samples for the victim’s face and the suspect’s shoes both showed high levels of zinc via X-ray fluorescence. The obvious assumption was that the zinc came from zinc-based sunscreen the victim was using on his face. The ever cautious scientist in charge decided to run a blank sample and the same high zinc levels were obtained. Instead of using the standard glue for fixing the samples to the X-ray stub the technician had used double sided sticky tape. In the normal analyses done in the lab this wouldn’t have mattered but in this case the high zinc levels were from the glue in the tape.

    On a lighter, or should I say higher note the police wanted to prove that a suspect had used his car to transport a large quantity of marijuana. The aim was to get our pollen expert to look for marijuana pollen in the dust vacuumed from the car trunk. As a comparison the police provided the lab with a large bag of marijuana complete with flower heads. Several years later the pollen expert left and I got the job of cleaning up his sample store and I discovered the marijuana stash. Being a good employee I took it to my supervisor who told me to burn it. Into the fume cupboard it went and I supervised its slow conversion to ash. The fume cupboards were rather old and not up to modern standards so it was a very happy afternoon of inhaling.

  44. spinynorman8 says

    Same reaction to the “scientific” testimony. A couple of points:

    1) Lab techs should not be allowed to claim that the conclusions they draw from evidence is “true within a reasonable degree of scientific certainty” without having their ability to judge or define what “scientific certainty” actually means. As you point out, their claims are not scientifically supported and therefore this remark is false, in actuality. What’s more, it bestows false legitimacy to dubious claims.

    2) I think the defense’s expert witness (a chemist I believe) could have done a much better job explaining the reason why the claims could not be made. In particular, the negative EDTA result seems to have been fairly persuasive, but wasn’t refuted strongly enough. Whenever a NEGATIVE result is to be given any credence, great pains must be taken to rule out the far more common ways that such results can occur (as any experimental scientist would be able to tell you). In cases where one would want to be able to interpret any experiment where conclusions might be drawn from a negative result, a control POSITIVE sample (as an “internal control”) should always be used. So, in this case, the questions to ask are: 1) Were positive controls used to rule out technical problems with the test (i.e., can it detect EDTA at all in a sample of the size provided?). 2) If the answer to 1 is “yes”, then what were the levels used for positive control? 3) Did the lab independently confirm that the provided blood sample belonged to Avery?

  45. spinynorman8 says

    When the FBI crime lab received the samples for EDTA testing, where they de-identified?

    That is, were they

    1) Given three swabs with blood and told that they belonged to Steven Avery and should be tested for the presence of EDTA?


    2) Given the following unidentified but labeled samples to test: three swabs of evidence blood, one (or more) swabs of blood from a sample known to contain EDTA, one (or more) swabs of blood from a sample known to NOT contain EDTA (freshly drawn blood from Steven Avery would be best), and one (or more) swabs with no blood or EDTA. Gold standard testing would also run a genetic marker profile on each sample that would allow further correlation of prior results with subject identity. BY AN INDEPENDENT INVESTIGATOR who is not aware of the identities (blinded).

    Only #2 is “science” and would qualify as a “reasonable degree of scientific certainty”.

    #1 is lab testing. Not science.

  46. shikko says

    @1 Crip Dyke said:

    There’s a reason it’s called the Criminal Justice System.

    As they point on out Popehat, “Criminal Justice System” is a name, not a description.

    @42 Crip Dyke said:

    What makes the system criminal, IMO, is that there is no consistent correction mechanism. There are so many cases that aren’t just messed up in one big way, but in hundreds of tiny ways.

    I don’t have sufficient knowledge about the court system to know if this would work, so please correct me if this won’t work…what about state laws requiring the public defender’s office budget to be ten percent above the state prosecutor’s budget?

    This (partially) addresses unequal access to legal representation based on SES, which is a huge part of the problem here. It also lives up to the spirit of the design of the American legal system, which is SUPPOSED to keep innocent people out of jail, not put the guilty in. It should also curtail lazy police work and prosecutorial misconduct. And for those of means, you want another lawyer? Go ahead and hire the second, and tell them who is in charge.

    Otherwise, the state will do what it’s supposed to do: work to prove you actually committed the crime. Want to spend less money on defense? Make damn sure you have the right person before charging them so the prosecutor’s budget is as small as possible.

  47. joseph4greaterglory says

    life will never give d masses room to express injustice nd d weighing balance has been corrupted to only speak for well to do wat can a mice do were a lion rule as a king

  48. colinday says


    Sorry for the delay. Some of the irregularities of the trial: The jury was taken from a different county from that in which the crimes were alleged to have occurred; many of the questions were improper (either leading or irrelevant, I’m not sure); and Newton just piled it on. It wasn’t even Newton’s, as it involved the Treasury rather than the Mint. He had to get Treasury to allow him to prosecute it.

  49. millssg99 says

    Having read the book about Steven Avery and then watched making a murderer I have been following this case for a long time. I was outraged about the first case. I just finished watching a Dateline on the whole Avery affair. The defense in this case and the film made a big deal about the puncture in the vial stopper and blood around the stopper inside it which had in fact bothered me – not being an expert. Dateline had an expert in blood drawing that said both of those things is what the stopper should look like. In fact he said that it had *better* have that puncture because that’s how the blood is put in the vial in the first place. Points above about the failure to find EDTA being as conclusive as presented taken but on the other hand there is no reason to believe the positive evidence, which it turns out doesn’t exist, about the fooling with the vial either. I got a lot out of the film but I felt it was extremely one-sided. People who are jumping to Avery’s defense should apply some skepticism in that regard.

    Steven Avery was royally screwed the first time and the people who participated in that should be charged with crimes. I don’t think there is evidence for it happening the second time. What is the defense theory? The police killed her right after she left his house and planted her burned body on his property along with the car and everything else? This evidence would have convicted anyone. Incriminating evidence was left out of the film. Evidence that both she and her cell phone ceased at Steven Avery’s house. She was afraid of him. He had to hide the fact it was him who was asking that it specifically be her that was sent for the photos. He called her back and blocked his caller id. He bought restraints. There was non-blood DNA found. A lot of people are drawing conclusions without having seen or heard the whole story. Maybe none of us has. I am NOT a supporter of police or our seriously flawed criminal justice system. The reason I was drawn to this case in the first place was his false conviction on the rape. He is just one of many innocent people who have been falsely imprisoned. However on balance I think he did kill Teresa Halbach and there is no plausible alternative theory to fit the evidence. Yes, at some point the conspiracy theory implodes on its own ad hoc pleading.

    On the other hand I DO have serious doubts about the nephew’s confession which was not used in Avery’s trial. I think there is a strong possibility he falsely confessed and was not involved.

    It’s sad that probable killers like Avery get sympathy because of the what the police and prosecutors often are guilty of – false convictions and imprisonment There are enough people out there who need publicity about their wrongful convictions *as did Avery the first time around.* Avery’s second conviction is not one I intend to question based upon what I know about it. I have followed a great many bad convictions a good number of which have thankfully been righted. Not one of them has ever had even remotely this much evidence against the convicted. In the last month I saw a story of a man with an ironclad alibi and no evidence against him get out of prison and be found not guilty in the second trial. It wasn’t that there wasn’t enough evidence, it was that it was clear the guy was innocent. I wish the public’s outrage could be directed toward the other truly innocent people rotting in prison.

    His murder conviction happened with “some of the best defense attorneys in the state” defending him. He didn’t have that the first time and most other falsely convicted people don’t ever get that either. His murder conviction was more justified and he had a better defense that any other I have seen with so many people believing otherwise. I’m sure O.J. is innocent too. Right. This murder conviction doesn’t deserve so much publicity and outrage based on the totality of evidence. Avery’s new lawyer is claiming new evidence – surprise surprise. I’ll wait and see. As of now I’m not losing any sleep over Avery being in prison *this time*.

  50. says

    millssg99 @55,

    If you want an accurate picture of what happened, you should try reading through the trial transcripts and official documents from the case records, available at Skip the media spin and bias and go right to the official source documents, if you want good solid information.

    Whether you realize it or not, the primary source of all of these talking points you are repeating is the then District Attorney and special prosecutor for the Avery trial, Ken “The Prize” Kratz. Kratz was sanctioned by the Wisconsin Supreme Court (but ultimately given just a slap on the wrist) for pressuring victims of domestic violence into sexual relationships with him, while he was prosecuting their attackers. At least one accused him of rape. In his own defense, Kratz cited his diagnosis and treatment for Narcissistic Personality Disorder, as if that were a mitigating factor. Here are a couple of the text messages Kratz sent to the women he was victimizing:

    Are you the kind of girl that likes secret contact with an older married elected DA . . . the riskier the better? Or do you want to stop right know [sic] before any issues?

    I’m the atty. I have the $350,000 house. I have the 6 figure career. You may be the tall, young, hot nymph, but I am the prize!

    It’s all in the WI Supreme Court document linked to above. Thought you might want to know where these talking points are coming from so you can perhaps adjust your level of skepticism accordingly.

    The defense in this case and the film made a big deal about the puncture in the vial stopper and blood around the stopper inside it which had in fact bothered me

    Yes, I agree that the way the hole in the vial was presented in the Netflix series was misleading. That said, it is still true that the evidence seal on the container that held the vial had been broken and was replaced by just a piece of scotch tape. It certainly doesn’t prove that blood was tampered with or planted, but it does show that proper protocols were not followed and it certainly opens the door, at least, to the possibility of tampering.

    People who are jumping to Avery’s defense should apply some skepticism in that regard.

    Agreed. The take-away lesson, IMO, should not be that Avery is necessarily innocent. He may very well be guilty, and the fact is that none of us really know either way. The take-away is that the system is deeply flawed and often fails, and that we all deserve the benefit of an impartial investigation and fair trial, which Avery and Dassey did not get.

    What is the defense theory? The police killed her right after she left his house and planted her burned body on his property along with the car and everything else?

    No, the defense is not obligated to present or prove some kind of alternate theory as to who did it. Their theory, if you will, was that the there was reasonable doubt because (among other things) the investigation was compromised by a clear conflict of interest due to intimate involvement of the Manaitowoc County Sheriff’s Department whom Avery was suing for $36 million; the D.A.’s disgraceful and salacious press conference(s) and subsequent media coverage prior to the trial tainted the potential jury pool and subverted Avery’s right to a presumption of innocence; and the state’s theory was not at all logical nor consistent with the physical evidence.

    Evidence that both she and her cell phone ceased at Steven Avery’s house.

    Partially true. There was no evidence showing that her phone “ceased at Avery’s house,” although it is true the charred remains were reportedly found in a burn pit and burn barrel located on Avery’s property. That said, charred remains were also located in a quarry more than a mile away and so it’s clear they were moved from one location to the other at some point.

    That being the case, perhaps you can explain the logic behind Avery burning a body in his own backyard, and then moving just small subset of the bones to the quarry, while leaving the rest sitting around a few yards behind his own home? Alternatively, can you explain the logic behind Avery burning a body at the quarry and then moving the majority of the bones into his own backyard?

    She was afraid of him.

    Completely false. She had been there many times before, and story about her being afraid of him is not corroborated by any testimony or recorded statement from anyone before or during the trial. The evidence that is most often cited for this piece of misinformation is one of her co-workers relaying a story about Avery answering the door wearing only a towel. The co-worker (Dawn Pliszka) testified on day 2 of the trial, and the way she described it was “she [Halbach] laughed and just said kind of, ewww, you know.” Halbach laughed and thought it was gross, but there is absolutely nothing to support the idea that she was afraid of him nor that she requested to not go back to his house.

    This rather innocuous story has been spun into “she was afraid of him”.

    He had to hide the fact it was him who was asking that it specifically be her that was sent for the photos. He called her back and blocked his caller id.

    Mostly false. He didn’t “hide the fact that it was him” – he made the appointment in the name of the person who owned the vehicle that was being sold and that Halbach was asked to photograph (his sister). Nonetheless, the address she was given was Avery Salvage Yard / Avery Road, and she had been there multiple different times in the past. The idea that she didn’t know where she was going or who she would likely see there is completely bogus.

    As to using *67, just play out the scenario in your head and ask yourself what happens when she picks up the phone. What do you imagine happens? “Hello?” “Hello, I’m not going to tell you my identity, but I’d like you to come out to Avery Salvage Yard around 2:30 pm to photograph a vehicle.” “What, who is this?” “I’m not going to tell you, why do you think I used *67? See you at 2:30, Avery Road.” Click. The idea that *67 was used to hide his identity doesn’t make any logical sense given the limitations of what that actually hides (i.e., just a phone number before the call is answered), and there are far more mundane explanations anyway.

    Lastly, Halbach was the only Auto Trader photographer who covered the regional area where Avery lived. The idea that he specifically requested her is not only false, but it would be completely unsurprising even if it were true, considering she’d been there so many times before.

    Again, innocuous things being exaggerated and spun into a nefarious plot.

    He bought restraints.

    Very misleading. If by “restraints” you mean novelty cuffs from a sex shop which he used with his wife, then yes. If you mean actual legit handcuffs and leg irons, then nope. This was testified to by Sergeant William Tyson on days 6 and 7 of the trial.

    There was non-blood DNA found.

    Assuming you’re referring to Avery’s DNA on the hood latch of Halbach’s vehicle, true, but the Crime Lab tech who took that sample testified that he had forgotten to change his gloves prior to collecting other evidence from the property, and that given the minute amounts that were discovered it very well could have been cross-contamination. Speaking of cross-contamination, Sherry Culhane (also of the Wisconsin Crime Lab) contaminated, with her own DNA, the sample that was used to test the key bullet fragment and she subsequently requested (and received) approval for deviation from standard protocol to account for this. Fun fact: Culhane also testified in Avery’s 1985 case using now discredited hair sample comparisons, which helped to wrongfully convict him. As for the Wisconsin Crime Lab, they self-reported 89 incidents of contamination between 2001 and 2006, and 50 incidents of contamination between 2004 and 2006 (meaning the error rate was increasing). Culhane’s Request for Deviation and the WI Crime Lab’s Contamination Log are posted at the site linked above if you care to review them yourself.

    Perhaps most importantly, zero trace evidence from Halbach was found in Avery’s trailer, where the state contends she was chained up (with the novelty sex restraints), raped, stabbed, and slashed. None of the victim’s blood or DNA was found anywhere, including on the so-called restraints. Same with the garage, where the state contends she was shot in the head. Not a trace of her blood was found anywhere, and they even jackhammered up a piece of the garage floor looking for it.

    A lot of people are drawing conclusions without having seen or heard the whole story.

    Indeed… But hopefully you’re not implying the book you read, the Netflix series, and the Dateline episode amount to the “whole story” because that would be a bit silly and pretentious.

    However on balance I think he did kill Teresa Halbach and there is no plausible alternative theory to fit the evidence.

    I agree the conspiracy theories are far-fetched and very difficult to swallow, but so is the state’s theory totally implausible as well. They presented two mutually exclusive versions of the crime, one used to convict Avery and one used to convict Dassey, and neither one is corroborated by the physical evidence. Nor does either one make any logical sense whatsoever.

    On the other hand I DO have serious doubts about the nephew’s confession which was not used in Avery’s trial. I think there is a strong possibility he falsely confessed and was not involved.

    The confession may not have been used at Avery’s trial, but Avery was convicted on the back of that confession anyway. Ken “The Prize” Kratz gave a lengthy and salacious press conference, prior to the trial, wherein he described how the crime had occurred as per that confession, and the local media repeated that story over and over again. By the time they got to the trial, the damage had long been done.

    Avery’s second conviction is not one I intend to question based upon what I know about it.

    Fair enough, but please don’t parrot debunked talking points and spread misinformation.

    Avery’s new lawyer is claiming new evidence – surprise surprise. I’ll wait and see. As of now I’m not losing any sleep over Avery being in prison *this time*.

    Avery’s new attorney, Kathleen Zellner, has helped to exonerate 17 people who were wrongfully convicted. You can laugh it off and conclude there’s no reason to lose sleep over it if you like, but that’s really not an attitude you should be bragging about or take pride in.