Updated for clarity 8/30/16

My previous article addressed the issues with chain of custody and documentation of the bone evidence. The issues don’t stop there. The testimony and DNA reports contain even more serious concerns about the validity of the bone evidence. Recently Reddit contributor, Amber Lea pointed out major red flags with the way the DNA evidence was presented at trial. Her research indicates that the only bone fragment found with intact tissue was purportedly processed simultaneously in two separate locations at the same time.

Special Prosecutor Ken Kratz displayed this photo during opening arguments and stated that Teresa Halbach’s shin bone was the large bone on the left.

bone fragments

That’s what Kratz asserts, but is there proof that this shin bone was identified as Teresa’s? Two witnesses testified about this key piece of evidence — Dr. Leslie Eisenberg (Forensic Anthropologist) and Sherry Culhane, lab analyst with the Wisconsin crime lab. The photo above was referenced as Exhibit #150 during the Brendan Dassey trial.

First, let’s begin with Dr. Leslie Eisenberg’s testimony about Exhibit #150. Dr. Eisenberg testified that she examined the bone specimens at the Dade County Morgue on November 10, 2005 and discovered the bone with the tissue.

Q All Right. And what is, um, Exhibit 150?

A One-five-zero is a portion of burned human bone that was recovered with other smaller burned human bone fragments and fragments of dried or desiccated human muscle tissue.

Q All right. And is the a fragment that you transferred to the crime lab for DNA analysis?

A That is one of the fragments that I transferred to the Federal Bureau of Investigations for DNA analysis.

During the Avery trial, Dr. Eisenberg testified more affirmatively that she packaged and sent the items directly to the FBI when asked if she sent the items to the crime lab.

Q Now the one we’ve been examining more closely here, is that the bone that you arranged to be sent to the FBI, or excuse me, to the crime lab for further analysis?

A No, the contents of all of the items you see on this screen, this larger bone, which is about two and a half inches long, and some of these other bone fragments and this muscle tissue was packaged by me and transferred directly to the FBI in November of 2005.

So she was clear that the specimens did no go back to the crime lab and that is important.

Note that the FBI referenced the specimen as “charred remains“, rather than “bone fragments“, even though they referred to several subsequent samples that were sent by Dr. Eisenberg as bone fragments.

**Also very important is the evidence that the shin bone referenced in exhibit #150 is referenced as Q1 Charred remains in the FBI document.**

FBI report Q1The trial testimony revealed a contradictory claim about the shin bone fragment. Sherry Culhane testified that she received the bone fragment into her lab on November 11, 2005 and removed a portion of  tissue that she believed was suitable for DNA testing.

A Item BZ was taken into the laboratory on November 11th, 2005.

Q And when you examined this, was it a combination of bone and tissue?

A It appeared to be, yes.

She referenced it in her report as “charred tissue” and labeled it BZ.

Item BZ

Item BZ was the same specimen that Dr. Eisenberg claimed to have shipped to the FBI. How do we know that? This PowerPoint slide which was shown to the jury during Sherry Culhane’s testimony is proof.

Culhane powerpoint bone

Q When you examined this, was this a combination of bone and tissue?

A It appeared to be, yes.

Q And what is shown on the big screen here, which we will later get an exhibit for and mark it, is that the bone and tissue fragment that you examined?

A Yes, it is.

 

 

Sherry Culhane testified that she removed tissue from the very bone that Dr. Eisenberg packaged and shipped directly to the FBI.

A Um, this is a bone fragment here with a piece of charred tissue attached to it. When I sampled this, I took a portion of the tissue that appeared to be least burned towards the bone and that’s what I used for my examination.

Q And did you assign a crime lab designation to this?

A Yes, I did.

Q And what was that?

A Item BZ.

Q And did you conduct DNA testing on this tissue portion of this burned bone fragment?

A Yes I did.

 

What does this mean?

  • The shin bone photograph was used twice at both trials to illustrate how they were able to obtain testable material from a fire that caused such extensive damage that the crowns of the teeth were completely burned; yet the timeline and circumstances of the handling of the only tissue found on that single bone do not add up. Dr. Eisenberg stated that she sent it directly to the FBI. How could that be? Did Culhane receive the tissue/bone specimen before Dr. Eisenberg even identified it as human? If Culhane removed a section from it before Dr. Eisenberg received it, she would have been doing so with no confirmation that the bone was even human. She would have also been altering evidence before Dr. Eisenberg would have had a chance to examine it. It wouldn’t make sense.
  • Both the Wisconsin Crime Lab and the FBI characterized the specimen as  “charred tissue/remains,” even though it was described by Dr. Eisenberg as a “two-and-a half inch fragment of shin bone with intact tissue”. This is very suspicious in light of the fact that there are already obvious issues with the handling of the bones alleged to have been discovered on the Avery property.
  • Once again we are left with an enormous question mark related to the bones, the DNA and the identification of the victim. In fact, the absence of any characterization of a bone fragment in the lab reports could indicate that there were no bones at all! Perhaps the prosecution felt they needed to present solid proof that a bone from the pit was definitively identified as Teresa’s, and if there were no bones, maybe they had to get creative. Maybe there is nothing more than the photo of the shin bone of unknown origin and the box of bones, which by the way look very similar to pig bones.
bones3
Bones in Halbach investigation
Pig bones
Pig bones
  • One has to wonder where the tissue came from. Did the crime lab and FBI in fact test sections of the golf ball sized tissue alleged to have been discovered by Agent Pevytoe?

Pevytoe charred tissue

Summary of the bone discovery, collection and processing:

MTSO Deputy Jost finds 1 inch object believed to be a bone (11/8/05) 

Investigators dig up the burn pit, transfer everything to the Calumet SO (11/8/05)

Box of bones are transferred to Dr. Eisenberg (11/9/05)

Agent Pevytoe finds golf ball sized piece of charred tissue while examining debris at Calumet Sheriff’s Office (11/10/05)

Dr. Eisenberg examines bones at Dade County Morgue, identifies shin bone with charred, attached muscle – sends it to FBI (11/10/05)

Sherry Culhane claims to somehow receive same shin bone with charred, attached muscle, labels it item BZ (11/11/05) and reports that a partial profile was obtained and that seven markers matched Teresa Halbach’s profile.

 

There’s a lot of confusion and misinformation about the bone/tissue DNA evidence and exactly which types of tests were performed. There were three separate sets of specimens submitted for DNA identifications — one went to the Wisconsin crime lab, and two separate sets of specimens went to the FBI.

  1. We really don’t know where item BZ came from. We do however know that the reported result of the STR DNA test was grossly misstated. The reported “partial profile”  — 7 of 16 locations should have been recorded as “inconclusive” because it was an indication that the test didn’t work — the sample was too degraded to trust the result. Instead, it was reported that since seven alleles matched the standard profile, statistics indicate that only one person of a billion would have that partial profile in a Caucasian population. It was suggested that although it was not a conclusive match, it was very unlikely that the specimen could have originated from anyone beside Teresa. This was very misleading, but the defense never refuted it.

DNA stat

DNA pic

2. The FBI received charred remains purportedly from the shin bone on 11/16/05 and performed mitochondrial DNA testing. They compared it to DNA from Karen Halbach’s buccal swab. It is unclear why no one sent the FBI Teresa’s DNA to compare to the charred material (designated as Q1 by the FBI). Since the MtDNA database is small, the report only concludes that Teresa cannot be ruled out as the contributor. No one from the FBI testified at either the Avery or Dassey trials.

FBI DNA MT

To avoid confusion, the designation of the same shin bone/charred tissue specimens from Exhibit #150:

  • BZ – Wisconsin Crime Lab
  • 1B2 – Dr. Eisenberg
  • Q1 – FBI

3. In January, 2006 Calumet County Sheriff Jerry Pagel incorrectly informed the media that the FBI confirmed the bones were Teresa’s, even though the FBI report clearly stated simply that she could not be ruled out.

On January 19, 2006, Calumet County Sheriff says bones found at the family auto salvage yard of a man charged with murder match those of a freelance photographer.Sheriff Jerry Pagel says the FBI confirms that the bones found at Steven Avery’s family salvage yard are those of 25 year old Teresa Halbach. The report from FBI headquarters in Quantico, Virginia says Mitochondrial DNA analysis of evidentiary remains found in a burn pit match the DNA sample of Halbach’s mother.

Prosecutor Ken Kratz referenced this in an email to Sherry Culhane. Apparently the media was never instructed to edit their misleading articles about the FBI “match” so the public believed there was conclusive proof that Teresa’s remains were found on the Avery property.

Kratz Culhane email

4. In November and December of 2006, several additional bone fragments were sent to the FBI.  They reported that none of them were suitable for mitochondrial DNA testing.

DNA fragments FBI

This is not surprising, as many studies have shown that DNA cannot withstand high heat exposure — such as the heat alleged to have been generated in the raging bonfire.

Recent progress of DNA analysis techniques is improving its discrimination power and sensitivity on an ongoing basis and now this technique is routinely applied to the identification of skeletal remains.7476 DNA profiling was expected to be a useful tool for identifying severely burnt bones when morphological tests would fail because of the deformation and fragmentation. However, casework we have encountered and studies published on burnt bone DNA typing show the harsh reality of this application. As mentioned earlier, the organic matrix disappears at a comparatively early phase in the burning process, and DNA is no exception.

Several studies have reported the applicability of DNA typing to the investigation of burnt bones.28,33,36,45,52 As a pioneer of experimental study in this area, Cattaneo et al assessed the amplification of 120 bp products of the human mitochondrial DNA region V in experimentally burnt human compact bones (800°C–1,200°C, for 20 minutes) as well as in charred bones obtained from actual forensic cases.52 They found that none of these burnt specimens retained DNA that was amplifiable and concluded that DNA typing cannot be used successfully with charred bones. (source)

 

There is simply no evidence that bones were found during the investigation. No one documented the bones on site at any of the three locations where they were allegedly found. Not a single photo exists. No one documented the “charred material” — not a single photo is in evidence. The FBI and crime lab reports didn’t even designate the shin bone as bone. If true that no bones were found, one can only speculate about the origin of the tissue sent to the labs. Clearly there were problems identifying the remains as Teresa Halbach’s, though one wouldn’t  know that from trial testimony or media reports. The defense accepted Culhane’s report as proof that Teresa’s body was found. How can it be trusted when there is a huge problem with the chain of custody? If Dr. Eisenberg shipped it directly to the FBI as stated, how did Culhane test it at all?

The fact is the remains (if there were any found to begin with) were never conclusively identified and that means the fraud in this case may be much bigger than anyone could have imagined. Hopefully at some point Avery’s attorneys will look into this matter. It is too important to overlook.

 

 

 

 

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