The Smoking Gun in the Steven Avery Defense May Not Have Been Smoking. Or Even a Gun

By Dustin Rowles | Streaming | January 18, 2016 |

By Dustin Rowles | Streaming | January 18, 2016 |

I am clearly incapable of going a day without writing about Making a Murderer, and for those who are sick of it, you have my sympathies. I’m sick of my brain thinking about it, but I can’t make it stop. Today’s topic is not about missing evidence, it’s not the perspective of something following the trial back in 2005, and it’s not about the victim shaming.

Today’s topic is the blood vial.

Last Friday, Steven Avery’s defense attorneys and Internet folk heroes Dean Strang and Jerry Buting appeared on CBS This Morning and insisted that Steven Avery’s blood from Teresa Halbach’s car should be retested, as the DNA tests have improved since the original one the prosecution used to test for EDTA, or lack thereof.

As you almost certainly recall, Steven Avery’s defense argued that the blood of Steven Avery found in Teresa Halbach’s car was planted by the police. They argued that the police took blood from a vial collected during Avery’s trial for rape in 1985, a crime for which was he exonerated by DNA evidence. In the documentary, the defense team discovered that the blood vial had allegedly been tampered with, noting that the rubber stopper had a needle hole in it and that the seal on the evidence had been broken.

The prosecution, however, argued that if the blood had been planted, it would’ve contained EDTA, a chemical added to the blood sample to keep it from degrading. Testing was done by the FBI on the blood, which concluded that no such EDTA was present in the blood in Halbach’s car, and therefore, it couldn’t have been planted by the police.

The defense, meanwhile, argued that the EDTA testing was faulty — and several DNA scientists have backed them — and that EDTA could have been present in three of the samples from Halbach’s car that the prosecution didn’t test.

Here’s the interesting rub, however. The blood vial may not have been the “smoking gun” that gave the defense the “red-letter day” they had celebrated in the documentary. Why? Because the “evidence tampering” wasn’t as clear cut as the documentary made it seem.

Much was made of in the documentary, at least in the way it was shot, of the needle hole in the rubber stopper on the blood vial. That seemed to me, and anyone else watching, to be a solid evidence of tampering, that someone had stuck a needle into the vial and extracted blood.

But maybe not. According to Jessica McBride at OnMilwaukee, a nurse “who originally drew Steven Avery’s blood and put it into the vial” was originally scheduled to appear at the Avery trial to testify that she had put the hole in the rubber stopper when she originally put the blood in the vial. In fact, it was very common for these vials to have needle holes because that’s how the blood was added into the vials.

Furthermore, two national experts - including the chair of the committee that writes the industry standards on drawing blood samples - told OnMilwaukee that such blood vials are supposed to have holes pierced in their rubber stoppers. According to the experts, that’s how the blood gets into the vial.

Not only is it not uncommon, but it’s the way the vials - in this case, according to court records, a purple-stopped Vacutainer - are supposed to work.

Moreover, an expert “said that the only way such a blood vial would not have a hole is if the medical professional violated standards and did not properly insert the blood in the tube and instead just ‘dumped it in there.’”

The prosecution ultimately didn’t call the nurse because they felt it was unnecessary, that they had a strong enough case without her (the nurse has since passed away).

And what about the broken seal? That can be explained, too.

A review of court records in the case shows that the court was told by the defense that then Manitowoc County DA E. James Fitzgerald and members of Avery’s defense team met and opened packages of evidence in the 1985 court file with the court’s approval to determine what to send out for additional tests. On June 19, 2002 at 12:25 p.m., Fitzgerald opened the box with the blood vial in it and closed it again two minutes later. It was believed the evidence tape seal was broken at that time, the court records say.

In other words, the blood vial wasn’t as big a smoking gun as depicted in the documentary, and there’s some question about whether the blood needed to be tested for EDTA at all, if evidence that it had been tampered with could so easily be explained away.

via OnMilwaukee