Words and Words Only

“**Words and Words Only**” is the second episode of the second season of *Making a Murderer* and the 12th episode overall. It was written and directed by Moira Demos and Laura Ricciardi. The title of the episode is a reference to Brendan Dassey's conviction about which his attorney's state it relies solely on Brendan's confession.

## Synopsis

Brendan's lawyers work to prove his conviction was based on a coerced confession. Kathleen tests Steven in new ways and visits the alleged crime scene.

## Recap

The season's second episode shows more focus on Steven's nephew Brendan Dassey. The episode begins with a postconviction hearing in Brendan Dassey's case. Many members of each of the involved families, the Halbachs and the Avery's, can be seen in the courtroom. At the hearing Dassey was being represented by Steve Drizin and Laura Nirider. The duo call Kenneth Kratz to the stand and the documentary series hightlights a selection of their examination of Kratz.

Drizin: “*Mr. Kratz, at the time that you made the decision to charge Mr. Avery with the homicide in this case, you did not know exactly what had happened to Teresa Halbach prior the time that her body had been burned, correct?*”
Kratz: “*I think that's fair.*”
Drizin: “*Okay. And at the time that you filed criminal charges against Steven Avery for the murder of Teresa Halbach you did not have sufficient evidence to support sexual assault charges against Mr. Avery, correct?*”
Kratz: “*That's true.*”
Drizin: “*Okay. And so, would it be fair to say you did not get a narrative of Teresa Halbach's final hours, if you will, until Brendan Dassey gave a statement on March 1st.*”
Kratz: “*That was the first individual who was involved in the criminal enterprise to give me a narrative of what had happened. Narrative, eh, you know, can be provided by, ehm, crime lab personnel 'and here's what the physical evidence suggest and this came first and then...*”
Drizin: “*But prior that time...*”
Judge: “*...one at a time. Finish your answer.*”
Kratz: “*...I had received ehm a narrative in, eh, in that respect from the forensic scientists that were involved.*”
Drizin: “*You had some evidence, you were getting some reports from various crime lab people, but there were significant gaps in the narrative that were filled in only when Brendan Dassey's statement was presented to you.*”
Kratz: “*I think that's fair.*”
The series then shows a brief re-examination between Tom Fallon and Kratz.

Fallon: “*Mister Kratz. In order to convict Steven Avery of first degree murder did you need the testimony of Brendan Dassey to do that?*”
Kratz: “*No. It wasn't offered at Steven Avery's trial.*”
Fallon: “*Would it be fair to say the only benefit to mister Dassey's testimony would have been to support the charges of sexual assault, kidnapping and false imprisonment.*”
Kratz: “*No. I think there were side-benefits. If we felt less comfortable trying this case from a forensic science standpoint rather than a, ehm, statement of witnesses or co-defendants' statement, eh, that certainly would've had collateral benefit. Having said that, ehm, as you and probably now knows we chose to try the Avery case very much as a circumstantial forensic science case.*”
And at that point the opening score begins to play.

### Nirider and Drizin presentation

We then get to see Laura Nirider and Steve Drizin holding a presentation in which Brendan Dassey's interrogation plays an important example part. The presentation questions the validity of the so-called Reid Technique, a technique developed by a certain John E. Reid that is widely used by investigators to interrogate suspects. Nirider and Drizin have come to believe that innocent people may confess to crimes they did not do due this Reid Technique. The duo also questions that some of the characteristics of a potential suspect that are potential red flags according to the Reid Technique, may not actually be red flags. As an example they show Brendan Dassey, who, according to Nirider, had all these characteristics.

If the investigators were simply applying the Reid Technique and considered Brendan (might be) guilty *because of* the Reid Technique, then do we have to blame Wiegert and Fassbender for Brendan's allegedly coerced confession? Or the technique they, and many investigators with them, used?

### Anomalies?

We are then introduced to another one of the forensic experts that Zellner called upon for scientific testing: forensic DNA consultant Karl Reich. Reich explains he was requested by Zellner to look for anomalies in Avery's case, and he says he found more than what you normally find, thus wanted to look into them.

   There is some talk going on between Zellner and Reich about the blood in the RAV4 and the absence of mixture of Avery's and Halbach's blood. Reich explains that if someone is bleeding while loading a person in the back of the car and then driving the car, you'd expect there to be mixture. But what makes them assume Avery should've been bleeding while loading the body in the truck? The trial transcripts of Steven Avery's case do not show that the jury was ever told something like that.

Zellner shares that she believes that even Ken Kratz had a strong suspicion the blood in the RAV4 was planted. Avery's blood is in the front, Halbach's is in the back. Other than that she does not explain why she had come to believe Kratz doubted the blood.

The confession of Brendan Dassey is discussed as well. We get to see the investigators talking to Dassey about whether his uncle went under the hood of the RAV4. It indeed does look like Dassey doesn't really know whether he went under there or not. Zellner seemingly enjoys pointing out that following this interrogation the investigators found Steven Avery's DNA on a hood latch under the hood of Halbach's car.

   It seems Zellner is basically saying that the investigators made Dassey say that Avery went under the hood, so that they could test the hood latch based on Dassey's words. The question then becomes, *why* would the investigators want Dassey to say this? Did they already know they'd find something there? If so, how did it get there? And why the hood latch area? If they had his DNA, they could've put it *anywhere*, right? They know that Avery had at least come in contact with the door, seat, steering wheel, etc, because the car was moved, so why steer (if that is what happened) Dassey in the direction of the hood?

Following this we see a scene from Steven Avery's 2007 trial: we see Ken Kratz informing the jury about the RAV4's battery being disconnected, and that Avery is responsible for this because his DNA is on the hood latch. Kratz explains that DNA can be left via skin cells and that sweat can help transfer DNA from the host to the substrate.

Back in Karl Reich's laboratory Zellner suddenly states that Kratz said it was "sweat DNA" and that they "locked onto that". Reich responds that's just wishful thinking and that there are no tests to determine whether the source was sweat or not. But, didn't Kratz merely point out that it's a *possibility*that DNA was transferred through sweat? If it's possible, and Zellner does not prove it isn't possible, then what point is she trying to make here?

Zellner then addresses "Touch DNA" - leaving your DNA on an object by simply touching it. Reich explains that the amount of DNA you're gonna get from handled objects is "pretty low". Important to remember, though, is that he also states that the amount increases the more you handle that object.

    Reich's DNA Technical Leader Liz Kopitke then gets to talk about an experiment she did on an example car to see how much DNA people on average would leave behind on a hood latch. She explains that a small selection of people would take turns in opening the hood and touching the hood latch. Between each touch a sample was taken. Only on four of the fifteen touches a detectable trace of DNA was found. The four traces that were found were of very low quantity, much lower than what Avery was said to have left on the hood latch of Halbach's Toyota RAV4. Note how none of the test subjects actually resemble the state Avery possibly was in.

The trio then discusses the possible source of the hood latch DNA, but first we get to see another flashback to the 2007 trial of Steven Avery where DNA Technical Unit Leader Sherry Culhane of the Wisconsin State Crime Lab talks about the hood latch DNA. She says, and this too is important to remember, that she received a swab that was taken from the hood latch of Halbach's RAV4 and that the swab **was discoloured**, but that it didn't look like a discolouration consistent with blood.

Back to Zellner, Reich and Liz; Reich explains there are four tests available to determine the source of a DNA profile: a test for blood, a test for saliva, a test of semen and a test for urine. He says that the blood, urine and semen test are not an issue here so they're left with the saliva test.

Quite interesting, because if the test comes back positive for saliva then that would be quite the game changer for Zellner and Avery. Nobody is going to believe he licked the hood latch. But on the contrary, what if it *isn't* saliva? Then we are left to believe it is Touch DNA. Wouldn't that seal the deal for Avery? Or are we to believe that someone even planted (invisible) Touch DNA?

Unfortunately, the series will never tell us what the result of the experiment actually was. There was, of course, a result though.

The series then gives Avery a chance to take a stab at the former District Attorney Ken Kratz. He says that they only do what they wanna do and they're trying to make fit what ain't true. They're too powerful and that has to change.

### Lie detector test: Brain Fingerprinting

The episode continues with Kathleen Zellner explaining she proposed Steven Avery to do a lie detector test. Not the well-known polygraph test, but another test called "Brain Fingerprinting", a test created by scientist Lawrence Farwell. A confident Zellner explains she proposed Steven to do this test. She told him that if he failed the test they would have a big problem, but Steven enthusiastically agreed himself to this testing. Zellner explains this with a confident expression as if saying this is not something a guilty person would do, even though she is talking about a point in time in which the test had yet to decide whether Avery was actually guilty or not.

    But then, Farwell begins explaining to the viewer how his test actually works. He says the test can measure whether certain information is stored in someone's brain. For example, if somebody killed another person on Christmas Eve by stabbing that person in the heart with a blue army knife, then these facts of the murder would be stored in the murderer's brain and the Brain Fingerprinting-test can then measure that terms such as "blue army knife", "heart" and "Christmas Eve", details only the killer would know, are indeed stored in that person's brain, or not.
Sounds like interesting science. Sounds reliable as well. But it comes with a downside. As Farwell himself explains, the best moment to subject someone to a Brain Fingerprinting-test is not too long after the crime and *before* many of the facts of the crime leak out to the media.

     Else, there is a chance that facts of the case have been stored in the suspects brain because of the media. At the very least, there is no way of knowing how the suspect learned of the facts, thus his knowledge of it doesn't mean much. In Steven Avery's example, not only was he exposed to media, but, as Farwell points out, he went through a long trial. In that trial, *all* the evidence that was collected during the investigation was talked about extensively.

The series does not really tell us exactly what "facts" were offered to Steven Avery. We do see terms like ".22 caliber rifle" briefly appear in the screen in front of Avery. At the end Farwell tells Avery that he passed the test and that he is not guilty of the crimes they tested him for. "Well, we knew that already" says Avery, laughing. I wonder what's so funny about all this.

### Filler

    Following this there's a bunch of filler, such as Zellner visiting the Avery's and talking to Dolores Avery about her son's wishes once he gets out of prison and some other topics. There's too much of this going on in season 2 and it just feels like they're using this to be able to get to 10 episodes. There's also an introduction to the judge on this case, Angela Sutkiewicz, but other than just being sort of mentioned and briefly shown here she doesn't get much time in the series.

Zellner explains her plan for Avery's release. She tries to undermine confidence in the Jury's verdict in three ways: by delivering new evidence, by proving there was a so-called "Brady" violation (a term for withholding evidence) and by proving ineffective assistance of counsel. In other words, that Dean Strang and Jerome Buting from Avery's 2007 trial could've and should've done a much better job than they did.

Sandra Greenman gets some screentime again as she talks about her relationship and past engagement to Avery. We are also introduced to Lynn Hartman, Avery's new sweetheart.

The last bit of filler is about the current state of Avery’s Auto Salvage. It's not doing well since Avery's conviction.

### Search dogs

    The last part of the episode focusses on a carefully selected bunch of scent trails that some of the search dogs followed. Scent trails that supposedly were Teresa's. Zellner says that they went right over the berm behind the RAV4 into the quarry, as if that means Halbach's scent came from somewhere in the quarry, or at least somewhere other than Avery’s Auto Salvage territory.

It's pretty interesting to see how many scent tracks there actually were and how many of them were not on the Avery property but outside of it. But I couldn't help but notice that the map that the series has of the scent tracks shows a pretty crowded trail near Avery's trailer and garage. Why isn't that explained? Scent dogs K9 Loof and K9 Brutus were active on Avery's ground and one picked up Halbach's scent, the other hit alarm for the scent of death. The dog that apparently went right over the berm into the quarry was actually a cadaver dog. Cadaver dogs don't follow scent trails. They are taken to areas by their handler. So it was the handler who decided to take the dog over the berm in the quarry... it was not a scent that guided the dog there.

    Also, notice on the map how there is a scent track from Avery's area to the area of the RAV4 and another one to the Kuss road area that Zellner talks about in a later episode.

Zellner points out that someone could've entered the Avery territory via an entrance in the southeast corner of the area, but there were some cars blocking the road. There was one red Pinto among those and it looked as if it was pushed. Halbach's RAV4 also had some front light damage, so Zellner suspects someone drove the RAV4 onto the property by the southeast road and bumped into the red Pinto, damaging the front of the car.

Finally Zellner mentions to Chuck Avery that a lot of material was found in the quarry, including a pelvis bone. Chuck comments he didn't know that (despite it being an issue at his brother's 2017 trial).

## Appearances

### Notable people

* Kathleen Zellner
* Steven Avery
* Brendan Dassey
* Ken Kratz

### Evidence discussed

* Brendan Dassey’s confession
* Blood in the RAV4
* Hood latch DNA
* Search dog scent trails
* Red Ford Pinto

## Criticism

* About **Brain Fingerprinting**: according to Zellner's 2017 motion Steven Avery was tested on having knowledge of Zellner's newly created theory that Halbach was bludgeoned to death behind her car, somewhere away from Avery’s Auto Salvage. Avery was not tested on having knowledge about evidence presented by the State in his 2007 trial.

* The **hood latch experiment** was done with just a small selection of people and none of them seemed to resemble Steven Avery. Avery, a car mechanic often appearing unkempt, was probably stressed and perspirating. The people seen in the experiment seem well rested and neat. They are not in a hurry to dispose of something and not in fear of being caught. Being unkempt and perspirating increases the amount of DNA available for transfer. Also, we do not know how many times Avery touched the hood latch, but the people in the experiment touch the latch just once.
* According to an article on touch DNA by Meakin and Jamieson the amount of DNA Avery left on the hood latch falls within the expected amount.

* The series never mentions the *search dogs* that picked up scent on Steven Avery's own soil.

* Neither does it mention the scent trail from Avery's trail to Kuss Road and to the area where the RAV4 was found.