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.
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.