EDTA Testing—Steven Avery’s Final Blow

Blog Posts 0 Comments

Murderer netflix pic

 

By: Jenni Lyman

The Netflix series, Making a Murderer, influenced 275,000 viewers to demand President Obama to overturn Steven Avery’s conviction.[1] Avery’s supporters believe he was framed by law enforcement and is innocent in the murder of Teresa Halbach.[2]

Avery’s blood was found on the inside of Halbach’s Toyota.[3] The defense’s theory is that police gathered the sample from a vial in Avery’s criminal file and subsequently planted the blood.[4] Armchair detectives cringed imagining the slimy detectives poking the vial to extract Avery’s blood.[5]

Avery’s defense team is comprised of two attorneys, Dean Strang and Jerry Buting.[6] Strang believes the critical point in Avery’s trial was the FBI test that discredited the linchpin of their argument–Avery was framed.[7] In Strang’s opinion, this fateful test was the turning point that shifted the proceedings in favor of the prosecution.[8]

What is this test and has the technology improved since Avery’s trial?[9] In sum, EDTA is the preservative the FBI tests for to see if the anticoagulant used for storing blood in vials is detected in the blood sample.[10] Unfortunately for Avery, the test came back negative for any trace of EDTA.[11] If the test came back positive it would prove the defense’s theory that the blood was planted in Halbach’s Toyota from the unassuming vial that sat dormant in Avery’s criminal file.[12]

Speculation proposes the chemical was too diluted to be detected.[13] As for improved technology, more experiments need to be conducted that replicate crime scene conditions to put the test to the test.[14]

In the meantime, the defense could appeal on the [somewhat shocking] fact that at the time of Avery’s trial, Wisconsin state law did not require a Daubert test to admit expert testimony.[15] The Daubert test holds expert testimony to a higher level of scrutiny.[16] Here, the EDTA test had not been done since the O.J. Simpson trial.[17] The arcane test’s bleak track record suggests it would not be admissible under a strict scrutiny test.[18]

In addition to the lack of the Daubert test and equally abhorrent is the fact there was no pre-trial Daubert hearing.[19] The bonus of a Daubert hearing is that it is conducted outside of the jury’s presence.[20] Here, the jury heard the damning evidence surrounding the test. So, the fetching defense was forced to scramble and convince the jury that the FBI’s sloppy work was not reliable.[21] Moreover, it would be difficult to find an apt limiting instruction to cure such a jury.[22]

For now, Avery remains behind bars while viewers await an EDTA test fit to render justice.

 

 

[1] See Edward Helmore, Making a Murderer Spurs 275,000 Viewers to Demand Pardon for Central Character, Guardian (Jan. 9, 11:48 AM), http://www.theguardian.com/world/2016/jan/09/netxflix-murder-whoddunit-petition (noting the White House later released a letter stating action must be done at state-level).

[2] Id.

[3] Id.

[4] Id.

[5] Making a Murderer (Netflix television series Dec. 2015).

[6] See Jethro Nededog, The Moment When Everything Turned Against Steven Avery in the ‘Making a Murderer’ Trial, Bus. Insider (Jan. 7, 2016, 3:11 PM), http://www.businessinsider.com/making-a-murderer-edta-test-blood-test-2016-1.

[7] Id.

[8] Id.

[9] Helmore, supra note 4.

[10] See Jen Yamato, ‘Making a Murderer’ Defense Attorney Dean Strang: We May Represent Steven Aver Again, Daily Beast (Jan. 7, 2016, 3:14AM), http://www.thedailybeast.com/articles/2016/01/07/making-a-murderer-defense-attorney-dean-strang-we-may-represent-steven-avery-again.html.

[11] Id.

[12] Id.

[13] Erika Engelhaupt, Are These Crime Drama Clues Fact or Fiction?, Nat’l Geographic, (Jan. 26, 2016), http://phenomena.nationalgeographic.com/2016/.

[14] Id.

[15] Yamato, supra note 10.

[16] Id.

[17] Id.

[18] Id.

[19] See also Fed. R. Evid. 702.

[20] See id.

[21] Yamato, supra note 10.

[22] See also Fed. R. Evid. 105.

 

Photo Source:  http://static.independent.co.uk/s3fs-public/styles/story_large/public/thumbnails/image/2016/01/01/14/Screen%20Shot%202016-01-01%20at%2014.48.45.jpg