‘Making A Murderer’: Kathleen Zellner Blood-Planting Theory Tall Tale But Believable [Opinion]

Corey WilsonAP

Few would disagree that parts of the 1,200-page motion for post-conviction relief filed by Kathleen Zellner on behalf of Making a Murderer subject Steven Avery reads like few legal petitions but a lot of crime stories.

The noted exoneration lawyer uses a witty blend of prose, psychology, and forensic science to weave a theory about how Avery’s blood ended up in Teresa Halbach’s Toyota RAV4 into a tale as tall as Hollywood has ever told. And with rural Wisconsin the backdrop and the framing of a junk dealer for a Halloween homicide the story, Zellner’s findings fit filmmakers Moira Demos and Laura Ricciardi’s project like a well-tailored suit. The first season of Making a Murderer had it all. And thanks to Zellner, there’s even more twists, ones even wilder than Avery’s claims that cops planted his blood in the Toyota. And not only are they believable, Zellner backs them up with expert testimony and testing on which she spent $600,000.

The docu-series does not broach Zellner’s blood theory, but chronicled Jerry Buting and Dean Strang’s testing of Avery’s blood for the presence of the anti-coagulant EDTA, hoping to link it to a vial of his blood to which Manitowoc County deputies James Lenk and Andy Colborn had access.

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Zellner was prepared to keep driving the Lenk and Colborn bus using advanced testing not available a decade ago, a type of carbon dating she hoped would show Avery’s blood found in the RAV4 was older than 2005 and prove the EDTA testing done at trial was flawed or fabricated.

For a year, Making a Murderer fans waited for Zellner to blow the prison doors wide open with the best piece of exculpatory evidence of all, even stronger than the RAV4 key or magic DNA bullet. Just like Buting and Strang hoped at trial, Avery’s blood would be Zellner’s “ah-ha!” moment on appeal. Not so, at least not because of carbon dating. It was never done.

But that’s not to say the story doesn’t culminate. The lawyer carefully takes the reader to the dark, unpaved trails of the Avery salvage yard. A killer, on November 3, 2005, enters the property, passing where he would eventually stash Halbach’s Toyota, toward the infamous red trailer where Steven Avery was preparing for a trip to Manitowoc. But there was a problem: Avery and his brother spot the RAV4, so the killer retreats. Avery gives him another chance to retrieve something — anything — to plant in the vehicle to prevent the investigation from moving away from Steven.

Inside, the killer finds fresh blood in Avery’s sink, scrapes it up, and beelines for the Toyota knowing he only has between 15 and 28 minutes before the blood dries. A farther-fetched story there may have never been.

While not as elaborate, the premise of the tale didn’t originate with Zellner. It came from Avery himself. As far ago as 2006, he told his trial lawyers that he bled into his bathroom sink on November 3, 2005, but didn’t clean it up because his brother was waiting for him outside. Instead, he taped his re-opened cut and proceeded to Menards. It was the same night Avery saw the SUV lights.

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At 6 a.m., November 4, Avery noticed the blood in the sink had been cleaned. It could not have been him, he said, because he did not enter the bathroom when he returned. He went straight to bed. Someone had been smoking in the trailer, too. Avery doesn’t smoke. A door had been jimmied. By all accounts, a missing girl, police and media presence, disappearing blood, and phantom cigarette smoke meant one thing to the already police-leery Steven Avery. The fix was on.

But basic physics disproves police involvement in blood planting, says Zellner. True crime fans, and those who want to see Steven Avery and Brendan Dassey released, needn’t worry. This is where it gets good.

Colborn, who questioned Avery November 3, has long been suspected of planting the blood in the RAV4 and the Toyota on the property. However, there simply was not enough time for Andy to pull off such a svelte feat. He met with Avery at 7 p.m., and later left the property for an 8 o’clock meeting at the Manitowoc County Sheriff’s Department. It’s about a 23-minute drive to the station, leaving Colborn only a short window of time. He would have had to ditch his squad; grab the RAV4; double back to Avery’s; wait until Steven left; grab, scoop, and plant the blood; re-hide the Toyota then race to his meeting. And if Colborn had planted the blood, he would have already had a copy of one of the Toyota keys.

“If Mr. Avery left at 7:15 p.m., Sgt. Colborn would have had 22 minutes to accomplish all of those tasks,” Zellner writes in her motion.

“If Mr. Avery left at 7:20 p.m., Sgt. Colborn would have had 17 minutes to accomplish all of those tasks. If Mr. Avery left at 7:25 p.m., Sgt. Colborn would have had 12 minutes to accomplish all of those tasks. If Mr. Avery left at 7:30 p.m., Sgt. Colborn would have had 7 minutes to accomplish all of those tasks. It is therefore extremely improbable that Sgt. Colborn planted Mr. Avery’s blood in Ms. Halbach’s vehicle on November 3, 2005. Further, Sgt. Colborn was driving a squad car when he met with Mr. Avery. Mr. Avery believes that the tail lights that he saw on his property were more similar to a RAV -4 than a squad car.”

The forensic scientist hired by Zellner claims he conducted an experiment in Avery’s bathroom using a volunteer’s blood. Before the test blood was scooped up and placed in an identical RAV4 Zellner purchased, James allowed it to dry for 30 minutes. The results were anything but consistent with what Calumet County District Attorney Ken Kratz told the jury.

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The state claimed Avery was actively bleeding when he deposited his blood in six places including about 2.25 inches from the ignition switch. That’s where the famous dashboard stain was allegedly left by the cut on Avery’s right middle finger. According to James, the stains throw up major red flags.

“Mr. Avery’s blood in the RA V-4 is consistent with being randomly distributed from a source because his blood is present in some locations but absent [in] some reasonably anticipated locations,” James writes. “The absence of blood stains in these locations is inconsistent with an active bleeder.”

In other words, the blood was selectively planted. Had he been there, bleeding as Kratz presented, Avery would have left a trail of blood, different droplets according to his movement and location of his hand. He left a similar trail in his own car November 3 when he was looking for a cell phone charger before he left for Menards. He bled on the Pontiac’s seats and gear shift before he left blood on a door jamb, in the bathroom sink, and on the floor inside his trailer.

As Zellner notes, scooping blood from a sink is not a common concept for most perpetrators. Someone with a background in science, perhaps a trained nurse, however, would certainly understand that slightly dried blood could be reconstituted with water and dripped elsewhere. James showed that the collection and planting process could have been completed in three minutes, well inside the 15 to 28 minutes blood typically takes to coagulate.

At the end of the day, the Avery jury bought a story so full of holes it still whistles when the wind blows. Kratz convinced two juries that the two marginally educated killers removed every trace of brutality that occurred in the trailer, perhaps like no other murderers in history. But it was as if the rest of the evidence was hidden by a drunken rugby team.

The Halbach investigation was bursting at the seams with hucksters that lent perfectly to the state’s case that unravels like a fallacious impossible-to-follow non-sequitur.

The “she died in the garage so there wouldn’t be any trace of her in the trailer” bit is getting a little old. Juxtaposing the state’s pieced-together version of the homicide and Zellner’s blood-planting theory leaves little doubt which is more believable.

[Featured Image by Corey Wilson/AP Images]