Scrutinizing the DNA Evidence – Teresa Halbach Investigation

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 not 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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Steven Avery case: New information questions if bones found were Teresa Halbach’s

Thanks, Global News for sharing my blog article on your site!

 

 

Making a Murderer subject Steven Avery may have even more hope for freedom after new research, conducted by Stop Wrongful Convictions campaigner and author Lynne Blanchard, has seen the light of day.

Blanchard points out a seemingly obvious fact: that people are taking for granted that the bone fragments discovered in Avery’s outdoor fire pit are those of murdered photographer Teresa Halbach.

Netflix’s Making a Murderer is a 10-part documentary series that follows the case of 53-year-old Wisconsin native Avery. He is serving a life sentence (without the possibility for parole) for the murder of Halbach and illegally possessing a firearm. Avery  had previously been jailed for 18 years for a sexual assault in 1985, but was exonerated in that case by DNA evidence in 2003.

READ MORE: Steven Avery’s lawyer: It’s “fairly obvious” who killed Teresa Halbach

Two years later, Avery brought a US$36-million lawsuit against Manitowoc County, Wis., for the wrongful conviction. Making a Murderer calls into question the investigation and trial that put Avery and his nephew, Brendan Dassey, behind bars in the Halbach killing. The program alleges that the investigators and police planted evidence and otherwise manipulated the outcome of the trial.

Steven Avery's fire pit

Steven Avery’s fire pit.

Netflix

In a blog post, Blanchard outlines why she doubts the bone-fragment analysis, and questions how the authorities knew they were Halbach’s.

“Obviously it appears to be very incriminating, but what is going on with this evidence?” she writes. “Why weren’t protocols followed? No coroner, forensic anthropologist, arson investigator or photographer was called to the scene when the evidence was discovered. They had all of these high paid experts at their disposal and didn’t call on them until after the evidence had been shoveled up and taken to the sheriff’s office.”

READ MORE: Juror involved in Making a Murderer homicide case stands by the verdict

“The DNA evidence described above is not conclusive,” she continues. “How is it even possible for tissue to survive a fire that disintegrated 60% of the bone mass? The teeth which are commonly used to identify a body because they outlast bone didn’t even survive the fire.”

According to Blanchard, lab analyst Sherry Culhane issued a report in December 2005, stating that a partial profile was retrieved from charred tissue, and that seven of 16 markers matched Halbach’s profile.

Netflix

Blanchard says the absence of a chain of custody of the bones is critical because it could have rendered the fragments inadmissible, especially considering all the accusations of police cover-ups and bias.

“They brought in the state officials right away to ensure that everything would be properly handled,” writes Blanchard. “Who dropped the ball? It is very suspicious given everything else that happened in this case. Since the scene wasn’t documented, there is no proof that any bones were ever on the Avery property.”

“As well, the Manitowoc County coroner was forbidden from entering the scene and none of the forensic experts were summoned until after the bones had been removed,” she continues. “We are to simply accept the word of the state witnesses who claimed to see the bones.”

Avery’s lawyer, Kathleen Zellner, was also sent new research involving the bones by a Reddit blogger known as Amberlea1879.

The blogger, who claims she’s been poring over Avery legal transcripts and documents online, asserts that prosecution lawyer Ken Kratz and analyst Culhane were colluding to frame Avery.

Amberlea1879 says the FBI did not confirm that the tested bone fragments belonged to Teresa Halbach, and that Culhane was sent only “charred material.”

On Jan. 20, 2006, Calumet County Sheriff Jerry Pagel released a statement to the media that confirmed the FBI matched the fragments found in the fire pit to Halbach. Shortly after, on Feb. 7, Kratz sent an email to Culhane reiterating that statement.

The new information put forward to Zellner suggests that the analyzed material is, in fact, a general mitochondrial DNA match connected to a relative of Halbach’s mother, and not the actual bones of Halbach herself.

All of these new findings suggest that evidence could easily have been tampered with, giving Avery and Zellner more opportunities to prove his innocence.

Zellner has been publicly announcing her discoveries on Twitter as the evidence-gathering continues. She recently told Dateline NBC that she has found evidence that proves Avery innocent.

Over 400,000 people have signed online petitions to see Avery freed or pardoned.

Steven Avery case: New information questions if bones found were Teresa Halbach’s

 

 

 

Scrutinizing the Bone Evidence – Teresa Halbach Investigation

There’s undoubtedly a lot of questionable evidence in this case – the magic key, the magic bullet and the possibility that Steven Avery’s blood was planted in the RAV 4. Should the bone evidence rise above similar scrutiny or can we consider the possibility that the bone evidence was also fabricated?  The suspicious mishandling of the bones is described in this article.

Summary of discovery and handling of bone evidence

  • Teresa’s ’99 Toyota RAV 4 was found at approximately 10:30 the morning of Saturday 11/5/05 on the Avery salvage yard. Investigators arrived at the scene and remained on site for eight days — searching for Teresa and/or evidence of foul play.
  • Bone fragments were allegedly found in the burn pit behind Avery’s garage on Tuesday 11/8/05.
  • Special Agent Tom Sturdivant requested sifting equipment from the Wisconsin crime lab (John Ertl).
  • No one photographed the bones or the collection process.
  • The (alleged) bones were placed into boxes and removed from the site.
  • Dr. Leslie Eisenberg, a Forensic Anthropologist with the crime lab received a box of bones on Wednesday 11/9/05.
  • Since Dr. Eisenberg often worked at the Dane County morgue, she carried the box to the morgue for examination on 11/10/05. She concluded that the bones were human. Specimens were submitted to the crime lab and the FBI for identification.
  • Special Agent Pevytoe allegedly discovered bones in the Janda burn barrel at the Calumet sheriff’s office on 11/12/05. No photos documented this discovery either.
  • Lab analyst Sherry Culhane issued a report on 12/5/05 stating that a partial profile was obtained from a charred piece of tissue and that seven of sixteen markers matched Teresa’s standard profile. The other markers were not present due to the condition of the sample.
  • On December 5, 2005 Dr. Eisenberg, Special Agent Pevytoe, John Ertl, Detective Wiegert and Special Agent Fassbender gathered at the crime lab (basement?) to sift through more of the ash and debris. They allegedly found metal grommets consistent with what would be common on blue jeans.

 

Sifting through ash and debris 12/5/05
Sifting through ash and debris 12/5/05

Exhibit-274-processing-debris-1024x676

The absence of a chain of custody of the bones is critical because it could very well have rendered it inadmissible. What happened? They brought in the state officials right away to ensure that everything would be properly handled. Who dropped the ball? It is very suspicious given everything else that happened in this case.

Since the scene wasn’t documented, there is no proof that any bones were ever on the Avery property. As well, the Manitowoc County coroner was forbidden from entering the scene and none of the forensic experts were summoned until after the bones had been removed. We are to simply accept the word of the state witnesses who claimed to see the bones.

Interestingly, the descriptions of the bones were inconsistent. Dr. Eisenberg claimed to have pieced together fifty-eight fragments of skull bones from the burn pit. That is consistent with them finding a considerable number of fairly large pieces; yet Agent Pevytoe described seeing very small pieces of bone fragments.

  “Yes, the fragmentation that I was finding from the burn pit was very small. Much of it was — in some cases was the size of half your little fingernail, if you will. Most of the bones were very fragmented there.” (Pevytoe testimony, day 18)

Pevytoe testified that three to four larger bones were found in the Janda burn barrel. If only a few bones were found in the barrel and tiny fragments were found in the burn pit, where did all the larger bones originate? This is a box of bones in evidence. Note that non-human charred bones were also found in each of the locations – burn pit, Janda barrel and quarry. Burnt insulation that appeared to be bone fragments was also found in the burn pit.bones3

 

Exhibit 391 skull bones
Exhibit 391 skull bones

DNA Testing

Crime lab analyst, Sherry Culhane reported that a partial DNA profile was obtained from a charred piece of tissue (item BZ) alleged to have been found in the burn pit ash. She used the STR Promega 16 amplification kit where fifteen markers are compared, with one gender marker. Culhane testified that since the specimen was degraded (likely due to extreme heat) she only obtained peaks for seven markers of the fifteen plus the gender marker, so less than 50%. The FBI CODIS database does not even record DNA profiles with less than nine identified markers.

The partial profile matched Teresa Halbach’s standard, but since it’s a partial profile it can’t be conclusively reported as matching Teresa’s DNA. What is the degree of certainty? Culhane reported that the probability of a random unrelated person matching the same seven (eight if including the gender loci) markers is 1 in a billion in the Caucasian population.

DNA stat

 

DNA pic

It’s unclear how she arrived at that statistic. Arizona is the only state that made their DNA database publicly accessible. Interestingly, based on the available DNA information from Arizona, it appears that the partial profile of item BZ would in fact be much more common than 1 in a billion. These are the actual matches based on a total of approximately 65,000 profiles:

  • 122 pairs match at 9 of 13 loci
  • 20 pairs match at 10 of 13 loci
  • 1 pair matches at 11 of 13 loci (full siblings)
  • 1 pair matches at 12 of 13 loci (full siblings)

(source)

This means that even with 12 of 13 markers matching there would be an occurrence of 1 in 65,000 — much more common than 1 in a billion. The less markers compared, the more common the occurrence. 122 pairs matched at 9 of 13 markers. Clearly a match of 7 of 15 would be considerably more common than the reported 1 in a billion at trial. The DNA evidence should have been reported more generally as “Teresa Halbach can not be excluded as source.”

FBI DNA Analysis

A section of the charred specimen (BZ) was also sent to the FBI in November, 2005. They conducted a mitochondrial DNA test and reported that Teresa could not be excluded as the source of the charred remains.

In 2006 investigators sent the FBI thirty-one additional samples – bone fragments. The FBI reported that no mitochondrial DNA testing was conducted due to the condition of the fragments but interestingly they also reported that some DNA was obtained and they were returning the processed DNA samples.

DNA fragments FBI

It is puzzling that they obtained DNA yet were unable to perform the mitochondrial testing. Is it possible it excluded Teresa Halbach as the contributor? Contrary to the DNA report, Calumet County Sheriff Jerry Pagel incorrectly informed the media that the FBI confirmed the bones were Teresa’s.

The 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

Why question this?

Everyone accepts as fact that Teresa’s remains were found in the burn pit. Obviously it appears to be very incriminating, but what is going on with this evidence? Why weren’t protocols followed?  No coroner, forensic anthropologist, arson investigator or photographer was called to the scene when the evidence was discovered. They had all of these high paid experts at their disposal and didn’t call on them until after the evidence had been shoveled up and taken to the sheriff’s office.

The DNA evidence described above is not conclusive. How is it even possible for tissue to survive a fire that disintegrated 60% of the bone mass? The teeth which are commonly used to identify a body because they outlast bone didn’t even survive the fire. Something’s wrong and it becomes difficult to accept this evidence as presented.

Since there’s circumstantial evidence that all of the other evidence was fabricated, is it such a stretch to consider that the bone evidence doesn’t hold up either?  If we can accept that the RAV4 was placed on the property, key planted in his residence, blood planted in vehicle, bullet planted in garage, should we blindly accept 100% that the bones were Teresa’s just because Culhane reported the partial profile as a “match?”  It’s difficult to trust it when proof of the bones on the property doesn’t even exist!

Is it possible that police were unable to find a body but wanted to secure a conviction so they fabricated the bone evidence?

A Similar Case

Around the time of Teresa Halbach’s disappearance, Kristine Rudy of Clark County, Wisconsin also went missing. She was last seen November 12, 2005.  She was twenty-one years old and six months pregnant, married to Shaun Rudy. Search efforts were unsuccessful and in December, 2005 investigators discovered a burn pit — sound familiar?

In December, detectives piecing together a case against Christine’s husband Shaun were led to the suspect’s mother’s home in northwestern Clark County. According to court documents, they found a burn pile they believe Shaun used to destroy evidence of the crime. In that burn pile, they found what a well-respected forensic anthropologist determined were fetal remains.

Court documents show Dr. Leslie Eisenberg of the State Crime Lab in Madison wrote investigators asking them to consider the mechanisms by which the fetal remains, yet very few adult remains, made their way to the burn pile, and says it’s possible the fetus was deliberately removed and burned independently of the majority of the adult remains. (link)

The really interesting thing is that the victim’s body was found a few months later – fetus intact.

But investigators were surprised when what’s believed to be Christine Rudy’s body was found last month in the Chippewa River – the fetus was still intact.

It kind of throws us for a loop. It raised a couple questions, says Clark County Sheriff’s Department Chief Deputy Jim Backus.

The bones found in the burn pile were severely charred, but Dr. Eisenberg has an excellent reputation and it’s seen as somewhat unlikely that her analysis was wrong, Backus says.(audio)

Dr. Eisenberg incorrectly identified bones as human. Though it may be possible to make a mistake like that, it certainly calls her credibility into question. Had they not found the woman, would they have prosecuted Shaun Rudy with the bone evidence?

We must consider the possibility that Dr. Eisenberg may have been mistaken with the Halbach case as well. We know there were charred animal bones mixed in. Is it possible there was nothing but animal bones?

We can also consider that maybe the state revealed just enough to convince the public that Teresa’s remains were found — photographs of random bones in a box and high priced experts sifting through debris. If true, it’s possible Teresa’s body was never found because it wasn’t on the Avery property. Police were searching in the wrong place.

 

 

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