Jerry Buting became a beloved figure to fans of Netflix’s series Making a Murderer as part of Steven Avery’s defense team, along with co-counsel Dean Strang. Now, viewers hungry for a deeper look at that case, the stories you didn’t see on TV, and Buting’s take on the shortcomings of the U.S. Justice System can pick up Buting’s book, Illusion of Justice, on shelves Feb. 28.
EW is thrilled to offer an exclusive excerpt from the book, in which Buting describes the search for victim Teresa Halbach’s missing RAV4 and its ignition key, and his suspicions about the ways in which the car and key were found.
Excerpt from Illusion of Justice by Jerome F. Buting
During the months leading up to the trial, Ken Kratz and I had been civil, even cordial, with each other. But once the jury was sworn in, his cordiality vanished.
Not a big deal. The mannerisms of another lawyer are usually not really of great moment for me, but I have to acknowledge that Ken Kratz’s approach to questioning witnesses got under my skin. When any civilian witness testified, he would soften his voice and make a conspicuous effort to appear gentler, more tender, as if he were so sorry that the defense was making them suffer through a trial and the ordeal of testifying in court. Perhaps he thought this would make him seem like a good guy to the jury, but it struck me as smarmy and fake. A criminal investigation and prosecution is not a popularity contest. A professional approach to the circumstances is not demonstrating cal- lousness to the survivors of a crime but rather the ethical duty of police and prosecutors. Not letting his manner bug me was part of my duty, I realized, so I did my best to filter him and concentrate on what the jury was hearing and seeing.
Perhaps the most important early witness from our perspective was Teresa Halbach’s former boyfriend, Ryan Hillegas, who led the search party that formed during the first days after her disappearance. Although they were no longer romantic partners, Hillegas testified, they spoke in person or by phone about once a week. In fact, Teresa had been living with Hillegas’s best friend, Scott Bloedorn. That most murder victims, especially female, are killed by people they know well does not seem to have ever crossed the investigative radar in Teresa’s murder. From the outset, investigators had their eyes on one suspect only, Steven Avery, and our efforts to suggest other suspects had been denied by Judge Willis. I tried to highlight this law enforcement bias in my cross-examination of Hillegas.
Q. Did the police ever ask you for any kind of alibi for October 31?
Q. They never asked your whereabouts whatsoever?
A. I don’t believe so.
Q. Okay. Anybody, point blank, ever ask you if you had any knowledge about her disappearance or were involved in it?
A. I don’t know if they did it like that, like they were accusing me but, of course, people asked me if I had talked to her or knew anything. And that’s why I was there to help.
Q. Okay. And to your knowledge, did you ever hear the police ever ask Mr. Scott Bloedorn if he had an alibi for Monday, October 31, in the evening, late afternoon hours?
A. I don’t know that.Q. So it would be fair to say that you weren’t in anyway treated like a suspect, hat you could tell?
A. That’s correct.
Right after Hillegas’s testimony, we heard from Pamela Sturm, a second cousin of Teresa Halbach’s who had found her RAV4 in a remote corner of the Avery scrap yard. She had been searching on foot for about thirty minutes with her daughter, Nicole, and somehow zoomed in on it at the far end of the property, among the four thousand other vehicles in the forty-four-acre yard. The vehicle was half heartedly obscured by boards and branches, in a way that made it actually stand out from the vehicles nearby. It was double-parked along a single-file row of vehicles, sticking out noticeably in the lane. Significantly, it was not in the car crusher that sat idle just one hundred yards away, surrounded by stacks of other vehicles that had been crushed that very week. We, of course, knew from the phone tapes that Sergeant Colborn, of the Manitowoc County Sheriff ’s Department, had a conversation with a dispatcher two days earlier during which he’d read off the plate number and description of the R AV4 as though he were looking right at it. If Pamela Sturm knew where to look, her quick discovery of the R AV4 was not all that remarkable. But she and Ken Kratz tried to make sure that remarkable was exactly how it played to the jury:
Q. Ms. Sturm, do you know how many vehicles are on this property?
A. I didn’t at that time. I had no idea.
Q. Looking at it now, do you think you got lucky?
A. Yea Well, not lucky, God showed us the way; I do believe that.
At the end of the day, the reporters asked me what I thought about God leading her to Teresa’s car. I scoffed but hastened to explain that this was not because of any doubts of mine in divine power.
“Not that I don’t believe that’s not possible,” I said. “I just don’t believe her. She’s too weird. They went right to that thing.”
The following week, the state presented Manitowoc County Sheriff ’s Department deputies James Lenk and Andrew Colborn, who—in addition to their involvement in Steven Avery’s 1985 wrongful conviction because of their failure to pursue the leads from another law enforcement agency that they had the wrong man imprisoned—seemed to be able to find what numerous other investigators could not. Both of them were present for the purported “discovery” of the RAV4’s ignition key on the floor of Steven Avery’s bedroom. Lenk had also been on hand when a bullet fragment was discovered in Avery’s garage four months later, when there was no pretense of needing Manitowoc personnel for a large-scale search of the yard. Once again, he’d made a vital discovery—the garage—that had already been searched many times. And we suspected that Colborn had located the RAV4 before Pamela Sturm because of his mysterious call two days before its discovery was reported. On the day Sturm found it, Lenk signed out of the property on a log of all officers entering or leaving the area of that property where the RAV4 was located. But he had never signed in. This meant either he arrived at the salvage yard much earlier than he now claimed (i.e., before the log was begun) or that he somehow eluded the officer responsible for recording all law enforcement checking in and out of the access point nearest the RAV4. Later, under oath, Lenk would give irreconcilably different stories of when he had arrived to the area of the RAV4. This opened the possibility that Lenk could have planted blood in the RAV4 after it was officially discovered, but before custody had transferred to Calumet or state law enforcement officers.
You would be hard-pressed to find more tension in a courtroom than that day as Dean began his cross-examinations. Colborn went first, and the following day, Wednesday, Lenk and another Manitowoc County Sheriff ’s Department investigator, Detective David Remiker—who had been awarded $100,000 by a civil court jury that included a woman now sitting in the jury box across the room—took the stand. And the next day, I would be cross-examining Dan Kucharski, a deputy of the Calumet County Sheriff ’s Department, which was the agency sup- posedly in charge of the investigation into Teresa Halbach’s murder. Kucharski was the only non-Manitowoc County officer present at the time that the “magic key” was discovered by Lenk.
On our way back to Lake Park Road after Lenk and Remiker had testified, it dawned on us that it was the first day of Lent: Ash Wednesday. Both of us are Catholic.
“Let’s go to church,” Dean suggested.
This seemed like the perfect way to reach inside for strength after the tough day behind us, and as a preparation for the one that was coming.
Although a break in our routine would be welcome, anytime we went out in public to a new place we had to map out the possibility of awkward encounters. The Halbachs were Catholic and might very well be going to services that evening. We knew which parish they belonged to and so we chose a church on the north end of town where we were unlikely to encounter them or their friends.
In the liturgical calendar, Ash Wednesday opens the forty days of preparation for Easter. A priest or deacon dabs the foreheads of congregants with a thumbful of ashes collected from the burned palms of the previous year’s Palm Sunday, evoking human mortality, and adds a verbal reminder from Genesis: “Dust thou are, and unto dust shalt thou return.”
As Dean and I made our way to the altar, I detected a slight stirring as we were spotted by the congregation, what seemed—at least to me—like waves of frowns and glares. Come on people, I thought, we’re all Catholics. Can’t we have a little respite with the Lord as fellow pilgrims through life? Later in the Mass, we received Communion. As a Catholic, I believe that it is a chance to taste the goodness of God. My walk down the aisle also gave me a taste of the condemnation of the community.
Afterward, we grabbed a quick bite to eat, so we didn’t get back to our apartments until 9:00 p.m.
Almost as soon as we walked in, there was knock on my door. It was the filmmakers, who of course had realized how pivotal a moment we were at in the trial.
“Do you mind if we come in and do a quick shot?” Laura Ricciardi asked.
We started grumbling. No. This is too much. We’re tired, and we have another big day staring at us.
“Come on,” Moira Demos pleaded. “We’ll just set up in the back- ground. We won’t say anything.”
We agreed, reluctantly, and started our work.
By then, we were not exactly oblivious to them, but their filmmak- ing apparatus no longer distracted us. When the trial finally began, the filmmakers were so much part of the courthouse scene that the other daily media were happy to let them run the pool camera feeds from the courtroom. Most of the news organizations had little interest in the vast majority of the testimony, and really did not want to devote technicians and reporters to monitoring every moment. But the filmmakers, with their heavy stake in documenting the entire process, were there for keeps. Cameras were trained on us all day—one that looked toward the witness stand and Judge Willis, and another toward the counsel table, which, in addition to capturing Avery, also took in spectators—and then in the press conferences afterward. Now, in the apartment, when they were plugged in and about to turn on the camera, Laura Ricciardi said something that probably had been on her mind since she came in the door.
“Don’t you want to clean up?” she asked.
Dean and I were puzzled. We never fussed or primped before their filming sessions. We were fine.
“Don’t you want to wipe the ashes off ?” Ricciardi prompted.
We laughed. I could see the big dark smudge on Dean’s forehead, and he was looking at the one on mine.
“No,” Dean said, “we don’t want to clean it off. You can film us like this.”
“You’re sure?” she asked. “This is who we are,” I said.
From our perspective, the following day’s star witness was Deputy Dan Kucharski, the Calumet Sheriff ’s Office deputy who had been in the room for Lieutenant Lenk’s discovery of the ignition key for Teresa’s RAV4. That was his first day inside Avery’s home, but it was not Lenk and Colborn’s. They had both previously searched Avery’s bedroom and found no key. I wondered why, if they planted the key in the bedroom, they did not do so at their earliest opportunity. I got the answer earlier in the trial, when I cross-examined Calumet County sergeant William Tyson. He explained that he had been instructed by his superiors to act as a watchdog and accompany Lenk and Colborn wherever they went inside Avery’s home to be sure they were not alone at any point. Why it wouldn’t have been easier for Calumet County to just assign their own officers to search Avery’s home was never explained. Tyson said he was watching Lenk and Colborn carefully enough that it would have been difficult for either of them to plant the R AV4 key on his watch. But Tyson was replaced by low-level deputy Dan Kucharski on the day the key was “discovered.”
At first, during the direct examination by Ken Kratz, Kucharski said that it would have been impossible for the other investigators to have planted the key without him knowing. But as Kratz’s questioning progressed, he backed away from that position.
“I would have to say that, that it could be possible, as in I was doing other things,” Kucharski testified. “I was taking photographs. I was searching the nightstand. So, if we’re just limiting it to if it was possible that they could do it without me seeing it, I would say, yes, I guess it is possible.”
This was not the answer Kratz was looking for, and he moved quickly to take the sting out of it.
“All right,” Kratz said. “And is that in the sense of, anything is possible?”
Kucharski ran with that.
“That’s in the sense of it’s possible aliens put it there, I guess,” he replied.
This wasn’t a star witness—this was a galactic witness, someone the prosecution had put on the stand in the hopes that he would vouch for the Manitowoc County investigators, and instead he did the opposite. Cross-examination was an opportunity for me to drive that message home, using Kucharski’s own memorable language.
Almost as soon as I began, I went to the question of extraterrestrials. “There weren’t any aliens in the room, right?” I asked.
“Not that I know of,” Kucharski said.
It seemed to me that believing Lenk and Colborn’s story of how that key was found—in a really small trailer bedroom, after it had already been searched multiple times, with Kurcharski standing there— required a suspension of credulity. Had he even been watching Lenk and Colborn?
This was the first essential point I wanted to make. Now it was time for me to move on to the reality of the situation and see what burden that put on the plausibility of the key discovery tale.
Q. What we do know, is that when you came into that bedroom the first time, there was no key on the floor, was there?
A. That’s correct.
Q. And you had been in that bedroom searching with Lenk and Colborn for about an hour, close to an hour, by the time that key was discovered, right?
A. Approximately, yes.
Q. Three people in that little bedroom, right?
Yet, suddenly, that key magically appeared in plain view on the floor next to a nightstand. Colborn, in his testimony, tried to explain that the key may have fallen out of the back of the nightstand when he “roughly” shoved items back into it. However, the location and position of the key on the floor, attached to a cloth fob and plastic buckle, made that highly unlikely.
There had been no aliens in the room that day. Only Lenk and Col- born, and he conveniently distracted Kucharski. It felt like a good day for the defense.
ILLUSION OF JUSTICE. Copyright © 2017 by Jerome F. Buting
Reprinted here with permission from Harper, an imprint of HarperCollins Publishers