THE EV­I­DENCE

Steve Cavanagh, a prac­tis­ing lawyer with a cer­tifi­cate in Ad­vanced Ad­vo­cacy, made the case for the de­fence at the Crime­fest trial in­spired by Mak­ing A Mur­derer. Steve ques­tions Dean Strang about the ev­i­dence in the Avery case.

Crime Scene - - SPOTLIGHT - Wow.

What do you feel now about the EDTA ev­i­dence and the strength of it?

It was ut­terly without peer re­view at the time; there was no es­tab­lished pro­to­col, let alone work that had been val­i­dated by out­side re­searchers. I think had there been a more rig­or­ous ju­di­cial gate-keep­ing role for ex­pert opin­ion tes­ti­mony in Wis­con­sin at the time, this ev­i­dence prob­a­bly would not have been al­lowed. Ba­si­cally our stan­dard of ad­mis­si­bil­ity at the time was just rel­e­vance. Four years af­ter this trial, the Wis­con­sin leg­is­la­ture changed that and strength­ened the ju­di­cial gate-keep­ing role on such ev­i­dence. But at the time al­most any­thing could come in as pu­ta­tive ex­pert opin­ion.

Is that a strong point for the ap­peal?

No, it failed on ap­peal be­cause that was the stan­dard of ad­mis­si­bil­ity at the time, and the new stan­dard won’t be ap­plied retroac­tively.

Of­fi­cer Col­burn’s call, when he called in the li­cence plate check, was one of the most ex­tra­or­di­nary mo­ments in the doc­u­men­tary, and you were han­dling that cross-ex­am­i­na­tion. What was your the­ory about where he was or what he did with that in­for­ma­tion?

Well, my view was that there was a rea­son­able in­fer­ence that he was look­ing at the li­cence plate [of Theresa Hal­bach’s car] when he made that call. I didn’t know where he might have been, where he might have seen that li­cence plate, where the car might have gone at that time, and I didn’t care. Be­cause if in fact he was look­ing at the li­cence plate two days be­fore the car was sup­pos­edly dis­cov­ered in the Avery sal­vage lot, then there was a lot of false ev­i­dence given by the police and per­haps by ci­ti­zen wit­nesses in the case. Now, to be fair, his ex­pla­na­tion never changed, and it was “I was not look­ing at the li­cence plate, I was look­ing at my notes”. So I tried to un­der­mine the rea­son­able­ness of his ex­pla­na­tion and sup­port the op­pos­ing in­fer­ence that he in fact was look­ing at the li­cence plate at the time.

An­other thing I wanted to ask you about is the bones. There wasn’t a lot on this – and I know the doc­u­men­tary had to cover so much – but I was fas­ci­nated about the lack of the foren­sic col­lec­tion of that ev­i­dence, par­tic­u­larly in the quarry. It seemed that there was a clear in­fer­ence that the body was per­haps burned some­where else, and be­cause there wasn’t a foren­sic an­thro­pol­o­gist who looked at each site, that ev­i­dence was largely de­stroyed.

You are ex­actly right in your con­clu­sions about what the ev­i­dence was, and about what the film did not in­clude, so I can fill in some de­tail for you. There were no pic­tures of the bones in situ at any of the three places at which burnt bones were found…

No pho­to­graphs taken of them in place, you know, un­moved, un­touched. No pho­to­graphs from any of those three sites while the bones were in place, and when bones were re­trieved no ef­fort to ei­ther pho­to­graph­i­cally doc­u­ment that or to plot with a grid or any other sys­tem which frag­ment came from where. So the abil­ity to draw an in­fer­ence that the body was burned there, or the op­pos­ing in­fer­ence that it was burned some­where else and dumped there, was de­stroyed by the man­ner in which the police con­ducted that in­ves­ti­ga­tion and re­cov­ered that ev­i­dence. There was a fair amount of tes­ti­mony about that from a de­fence ex­pert, a Cana­dian foren­sic an­thro­pol­o­gist, Scott Fair­grieve, who ap­pears very briefly in the film – and the most im­por­tant part of his tes­ti­mony was not in­cluded there on that is­sue, on the bungling of the in­ves­ti­ga­tion. But he also opined that a hu­man body wouldn’t have been ren­dered to that level of cal­ci­na­tion or char­ring in a shal­low, open pit with un­even fuel sources. It was his opin­ion that the sus­tained and high tem­per­a­tures nec­es­sary to ren­der a hu­man body to that state prob­a­bly would have re­quired an en­closed space for burn­ing, and prob­a­bly with con­sis­tent fuel sources.

We have an “abuse of process” point in the UK, which is ba­si­cally say­ing that the police made such a dis­as­ter of the col­lec­tion of this ev­i­dence that it should be ex­cluded. Is there such a thing in the US?

There is no sim­i­lar doc­trine in the US; the rem­edy is viewed as cross-ex­am­i­na­tion re­veal­ing the po­ten­tial short­falls in the police work, and there­fore un­der­min­ing the cred­i­bil­ity of the police in­fer­ences. But it’s sim­ply left to cros­sex­am­i­na­tion or de­fence ev­i­dence.

Both Neil and I are mystery authors. I won­der, do you read mystery fic­tion – and do you have any favourite authors?

I al­most never do, and the only crime mystery fic­tion I’ve read in re­cent years was the Stieg Lars­son se­ries – you know, The Girl With The Dragon Tat­too, the first three be­fore Stieg Lars­son’s un­timely death. They are the only crime mys­ter­ies I’ve read in re­cent decades.

If there was ever to be a movie made of Mak­ing A Mur­derer, Dustin Hoff­man play­ing you and Kevin Spacey play­ing Jerry But­ing – what do you think?

I’d love it! I’d be enor­mously flat­tered.

The trial in progress.

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