Affidavits of Stuart James

The **affidavits of Stuart James** are two affidavits by Stuart James, a bloodstain pattern analyst. Kathleen Zellner requested the expertise of James to analyze the blood found in the victim's vehicle.

## Affidavit of Stuart H. James

### Pages

11 (excluding exhibits)
38 (including exhibits)

### Date signed

3 May 2018

**Now comes your affiant, Stuart H. James, and under oath hereby states as follows:**

1. I am of legal majority and can truthfully and competently testify to the matters contained herein based upon my personal knowledge and to a reasonable degree of scientific certainty. The factual statements herein are true and correct to the best of my knowledge, information, and belief.
2. I am a forensic scientist and bloodstain pattern analyst with James and Associates Forensic Consultants, Inc. in Fort Lauderdale, Florida. A copy of my current CV is attached and incorporated herein as Exhibit A. All of the opinions expressed herein are expressed to a reasonable degree of certainty in the field of bloodstain analysis.
3. In my professional experience, it is extremely difficult to clean blood stains with heavy applications of bleach and paint thinner.
4. I have examined the following materials in the case of *State of Wisconsin v. Steven A. Avery*, Manitowoc County Case No. 05-CF-381, received from Attorney Kathleen T. Zellner:

a. Photographs of RAV-4 vehicle
b. Photographs of bone fragments
c. Photographs of burn area behind garage
d. Photographs of burn barrel contents
e. Photograph of blood sample container
f. Video and photograph of blood tube packaging
g. Photographs of garage and contents
h. Photograph of burned cell phone
i. Photographs of blood stain on Steven Avery's bathroom floor
j. Preliminary Hearing testimony of Forensic Anthropologist Dr. Leslie Eisenberg
k. Trial testimony of Forensic Anthropologist Dr. Leslie Eisenberg
l. Trial testimony of Forensic Scientist Nick Stahlke (Bloodstain Pattern Analyst)
m. Trial testimony of DNA Analyst Sherry Culhane (DNA Analyst)
n. Closing argument of Defense Attorney Dean Strang
o. Closing argument of Defense Attorney Jerry Buting
p. Closing argument of Prosecutor Ken Kratz
q. Reports of the Wisconsin State Crime Laboratory
i. DNA (11/14/05)
ii. DNA (12/5/05)
iii. DNA (3/31/16)
iv. DNA (5/8/06)
v. DNA (12/4/06)
vi. Field response (11/05/05)
vii. Field response (11/06/05)
viii. Bloodstain Pattern Analysis (1/31/06)
ix. Firearms report (2/21/06)
x. Firearms report (5/10/06)
xi. Trace evidence (2/27/06)
xii. Trace evidence (5/26/06)
xiii. Fingerprints (3/8/06)
xiv. Fingerprints (4/26/06)
r. Two photographs of circled areas on cargo door
s. Portion of plastic dashboard from RAV-4 vehicle
t. Case communication record of Sherry Culhane
u. Excerpt of testimony John Ertl
v. Case communication record
w. Trial testimony of Kevin Heimerl
x. Chapters from Ken Kratz's book, Avery: The Case Against Steven Avery and what "Making a Murderer" Gets Wrong, pertaining to blood
5. All opinions rendered in this affidavit are based on new bloodstain pattern recommended terminology. Specifically, the use of velocity as a determinative characteristic of bloodstains was abandoned with the production of the Working Group on Bloodstain Pattern Analysis ("SWGSTAIN") terminology. Bloodstain analyst Nick Stahlke ("Stahlke") used velocity to define and interpret the bloodstain pattern observed on the rear cargo door of Ms. Halbach's RAV-4. TT:2/27:49

**OPINIONS REGARDING MR. AVERY'S GARAGE**
6. I have reviewed the testimony of Kevin Heimerl ("Heimerl"), special agent with the Wisconsin Department of Justice Division of Criminal Investigation. Heimerl described there being no blood spatter in Mr. Avery's garage. TT:2/22:201.
7. I have reviewed the trial testimony of John Ertl ("Ertl"), field response technician for the Wisconsin State Crime Lab. Ertl testified that he had some experience as a bloodstain pattern analyst (TT:2/19:95-96) and that he saw no bloodstain patterns whatsoever in Mr. Avery's garage. TT:2/19:96-98.
8. To a reasonable degree of scientific certainty, the absence of bloodstain patterns from a gunshot, in Mr. Avery's garage is inconsistent with Ms. Halbach being shot in the head in that location.

**OPINIONS REGARDING MR. AVERY'S TRAILER**
9. Ertl also testified that he was asked to identify bloodstain patterns in Mr. Avery's residence. TT:2/19:36. Ertl found no evidence of bloodstain patterns in Mr. Avery's trailer. TT:2/19:37; 96-98; 143.
10. To a reasonable degree of scientific certainty, the absence of bloodstain patterns in Mr. Avery's trailer is inconsistent with a brutal attack occurring in that location. Further, the complete absence of Ms. Halbach's blood in Mr. Avery's trailer is inconsistent with her being stabbed or otherwise having sustained a significant, blood-letting injury in Mr. Avery's trailer.

**OPINIONS REGARDING MS. HALBACH'S RAV-4 — CARGO DOOR**
11. SWGSTAIN defines impact pattern as follows: "A bloodstain pattern resulting from an object striking liquid blood." SWGSTAIN Recommended Terminology, attached and incorporated herein as Exhibit B.
12. SWGSTAIN defines cast-off pattern as follows: A bloodstain pattern resulting from blood drops released from a bloodied object in motion. SWGSTAIN Recommended Terminology, Exhibit B.
13. I have reviewed photos and video of the blood tube containing EDTA preserved whole blood sample of Steven Avery. It is my opinion that the appearance of the blood tube is consistent with a normal EDTA blood tube that has not been tampered with. The needlehole observable in the center of the purple stopper does not indicate the tube had been tampered with. In my experience with similar blood tubes, that hole is created with the blood sample is deposited in the blood tube at the time of its collection. It is my opinion that the apparent ring of dried blood observable under the stopper does not indicate that the blood had been tampered with.
14. I have reviewed the trial testimony of Stahlke, bloodstain pattern analyst for the Wisconsin State Crime Lab. It is my opinion that Stahlke incorrectly identified the bloodstain pattern on the interior of the cargo door of the RAV-4. Stahlke testified that this pattern was consistent with an impact pattern. TT:2/26:228; Photograph of bloodstain pattern on Ms. Halbach's RAV-4 cargo door. It is my opinion that this pattern is consistent with a cast-off pattern, not an impact pattern.
15. Stahlke described impact stains as having been flung from a bloody object, which is actually characteristic of cast-off patterns, not impact patterns. TT:2/28:225-26
16. Stahlke expressed an incorrect opinion about the origin of the bloodstain pattern on the interior of the cargo door. He testified that it would be possible for the resulting stain to be produced as a result of a body with bloody hair being flung into the rear cargo area. TT:2/26:228-29.
17. The prosecutor, Ken Kratz ("Kratz"), argued that Ms. Halbach was thrown into the rear cargo area of the RAV-4 and that her blood was in motion when it struck the interior panel of the cargo door. TT:3/14:61.
18. The cargo door of the RAV-4 opens with hinges on the passenger side of the vehicle to create a ninety degree angle with the threshold of the cargo area, as depicted in the attached photograph of Ms. Halbach's RAV-4, attached as Exhibit C.
19. If the bloodstain pattern observed on the interior cargo door had been created when Ms. Halbach was thrown into the cargo area and while the cargo door was open it would likely produce elongated stains that indicate a right to left direction of travel relative to the cargo door. No such pattern was observed on the interior of the cargo door. In fact, Stahlke accurately described the bloodstains on the rear cargo door as being "circular or near-circular." TT:2/26:228.
20. Additionally, the blood spatter on the rear of the cargo door is concentrated on the bottom left corner. The bottom of the cargo door is 17 inches from the ground. The concentration of bloodstains in this area is not consistent with blood being deposited as a result of Ms. Halbach's body being thrown into the rear cargo area.
21. It is difficult to distinguish the differences in shape of bloodstains with angles of impact from 60°-90°. If blood droplets impact a surface from an angle between 60°-90°, circular or near-circular stains are produced. Stahlke described the individual stains on the rear cargo door as being "circular or near circular." TT:2/26:228. See attached bloodstain comparison, Exhibit D.
22. The bloodstain pattern observed on the interior panel of the rear cargo door is inconsistent with a moving blood source, such as Kratz described. TT:3/15:99. The pattern on the rear cargo door is consistent with a stationary blood source being struck with a bloodied object and creating a cast-off pattern where the blood droplets have traveled from left to right relative to the rear of the vehicle and onto the open cargo door. I have directed experiments where similar cast-off patterns were created using a hammer swung at a low angle to deposit blood onto the rear cargo door of a 1999 RAV-4.
23. Through a series of experiments that I observed, I have determined that the bloodstain pattern observed on the interior of the cargo door was not deposited by a bloody body being flung into the cargo area.
24. For one experiment, a mannequin was obtained to reenact the scenario presented to the jury by the prosecution. Weights were attached to the mannequin to achieve a weight of approximately 135 pounds to replicate Ms. Halbach's body weight. A wig of human hair was obtained that was similar in length and style to Ms. Halbach's at the time of her death. Layers of blank white sheets of paper were attached to the interior of the rear cargo door to collect any blood spatter produced when the body was flung into the cargo area. When a bloodstain pattern was created on the top sheet of paper, that layer was torn off to preserve the created pattern. After soaking the mannequin's hair with EDTA preserved blood, volunteers from Kathleen T. Zellner & Associates, P.C., lifted and tossed the mannequin into the cargo area of a 1999 Toyota RAV-4 that is owned by Ms. Zellner. The goal of the experiment was to reenact the prosecution's version of events, i.e., that the bloodstain pattern on the cargo door was created when Mr. Avery threw Ms. Halbach into the cargo area of her RAV-4. TT:2/26:228-29; TT:3/14:61. First, one volunteer attempted to create a bloodstain pattern on the cargo door by flinging the mannequin, but he was not able to do so. Then, two volunteers threw the mannequin into the cargo area. They could not create a bloodstain pattern similar to what was observed on the rear cargo door of Ms. Halbach' s vehicle. As part of this experiment, the mannequin's hands and feet were bound with rope in an effort to replicate the scenario described by Brendan Dassey in his confession. Excerpts from the 3/1/06 interview of Brendan Dassey, attached as Exhibit E. The addition of the rope had no effect on the experiment. After I concluded that no blood was being deposited on the cargo door when the mannequin was being thrown into the cargo area, the weights were removed from the mannequin to see what, if any, pattern was created when the weight of the mannequin was reduced to a fraction of Ms. Halbach's body weight. Without the added weight, the mannequin weighed approximately fifteen pounds. Even still, we were unable to create a bloodstain pattern that resembled the cast-off pattern observed on the interior of the cargo door.
25. In another experiment that I observed, an attempt was made to recreate the bloodstain pattern observed on the interior cargo door of Ms. Halbach's RAV-4. The interior cargo door was lined with layers of blank white paper to collect any blood spatter created in the course of this experiment. After creating a bloodstain pattern on the top sheet of paper, that layer was torn off to preserve the created pattern. During this experiment, the cargo door of Ms. Zellner's 1999 RAV-4 was open. When completely open, the cargo door sits perpendicular to the threshold of the cargo area. A volunteer from Kathleen T. Zellner &
Associates, P.C., created cast-off bloodstain patterns on the cargo door by wetting the head of a mason's hammer with EDTA preserved blood and swinging. Cast-off bloodstains are created when blood is flung from a bloodied object. To a reasonable degree of scientific certainty, the bloodstain pattern observed on the rear cargo door of Ms. Halbach's RAV-4 was a cast-off pattern created by a blunt instrument. This bloodstain was not consistent with a knife because the blood droplets cast off by the blade of a knife are usually smaller than those observed on the rear cargo door. This bloodstain was not consistent with a gunshot because droplets of blood resulting from a gunshot are smaller than those observed on the rear cargo door. The bloodstain patterns that were most similar to the pattern observed on Ms. Halbach's rear cargo door were consistent with when the victim's body was in a prone position on her back on the ground with her head near the driver's side of the rear bumper and the attacker was kneeling over her, striking her with a bloodied object, consistent with a hammer or mallet, while the rear cargo door was open. A bloodstain pattern was created that closely resembled the pattern on Ms. Halbach's cargo door, which was photographed and attached as Exhibit F.
26. To a reasonable degree of scientific certainty, it is my conclusion that the bloodstain pattern on the rear cargo door of Ms. Halbach's RAV-4 was not created in the manner described by the prosecution and their experts at Mr. Avery's trial.

**OPINIONS REGARDING MS. HALBACH'S RAV-4 — IGNITION STAIN**
27. Through a series of experiments that I observed, I have concluded to a reasonable degree of scientific certainty that the distribution of Mr. Avery's blood in various locations in the passenger compartment of the RAV-4 are not consistent with purposeful behavior. The prosecution told the jury that all of the blood deposited in the RAV-4 was from the cut on the middle finger of Mr. Avery's right hand and that he was actively bleeding. TT:2/12:85. However, there was no blood on the door handle, key, gearshift, interior hood release, hood latch, hood prop, and battery cable.
28. It is my opinion that Mr. Avery's blood in the RAV-4 is consistent with being randomly distributed from a source because his blood is present in some locations but absent is some reasonably anticipated locations, such as those listed in ¶ 27. The absence of blood stains in these locations is inconsistent with an active bleeder.
29. The bloodstains belonging to Mr. Avery are consistent with an explanation other than Mr. Avery being in the RAV-4 and depositing his blood in those locations with his actively bleeding cut finger. Had Mr. Avery been actively bleeding in the RAV-4, it is my opinion that his blood and bloody fingerprints would have been deposited elsewhere in the vehicle.
30. One experiment that represented the purposeful application of blood was clone using a pipette to drip blood onto the driver's and passenger seats, a CD case, the metal frame surrounding the rear passenger door, between the driver's seat and center console. An applicator was used to create the stain near the ignition. I had previously attempted to recreate the ignition stain using fresh blood applied by an applicator on paper and a piece of plastic cut from the ignition area of a 1999 Toyota RAV-4. Photographs of the stains produced are attached to this affidavit as Exhibit G. For this experiment I used fresh blood to better represent the time it would take for blood shed by Mr. Avery in his bathroom sink to coagulate and dry. Blood was drawn from a volunteer and was deposited on the bathroom sink from Mr. Avery's residence. The blood dried on the sink for approximately thirty minutes. Dried flakes of blood were then lifted from the sink using a scalpel.
31. More fresh blood was drawn from the volunteer and deposited into the basin and rim of the sink. Using a pipette, blood was taken from the sink and transported to Ms. Zellner's 1999 RAV-4. Blood was then dripped on the driver's seat, the passenger's seat, between the driver's seat and center console, on a CD case sitting on the passenger seat, and on the door jamb of the rear passenger door. An applicator was used to recreate the stain near the ignition. Depositing blood in this manner and at these locations took less than three minutes. Blood was also dripped onto the carpet of Ms. Zellner's RAV-4 between
the driver's seat and the center console. The fresh blood absorbed into the carpet and did not form flakes.
32. To a reasonable degree of scientific certainty, the bloodstains attributable to Mr. Avery that were observed in Ms. Halbach's RAV-4 can be classified as follows:
a. Passive drop on driver's seat;
b. Passive drop on passenger seat;
c. Passive drops on CD case;
d. Passive drop with flow pattern on passenger door jamb; and
e. Stain produced with an applicator near the ignition.

33. The stain near the ignition of Ms. Halbach's RAV-4 was approximately 2.25 inches from the ignition. Evidence photos of ignition and blood stain, attached as Exhibit H. To a reasonable degree of scientific certainty, Mr. Avery would not have deposited blood at that location with his right middle finger while turning the key in the ignition.

## Affidavit of Stuart H. James

### Pages

4 (excluding exhibits)
31 (including exhibits)

### Date signed

6 July 2018

Now comes your affiant, Stuart H. James, and under oath hereby states as follows:

1. I am of legal majority and can truthfully and competently testify to the matters contained herein based upon my personal knowledge and to a reasonable degree of scientific certainty. The factual statements herein are true and correct to the best of my knowledge, information, and belief.
2. I am a forensic scientist and bloodstain pattern analyst with James and Associates Forensic Consultants, Inc. in Fort Lauderdale, Florida. A copy of my current CV is attached and incorporated herein as Exhibit A. All of the opinions expressed herein are expressed to a reasonable degree of certainty in the field of bloodstain analysis.
3. I have examined the following materials in the case of State of Wisconsin v. Steven A. Avery, Manitowoc County Case No. 05-CF-381, received from Attorney Kathleen T. Zellner:

a. Photographs of RAV-4 vehicle
b. Photographs of bone fragments
c. Photographs of burn area behind garage
d. Photographs of burn barrel contents
e. Photograph of blood sample container
f. Video and photograph of blood tube packaging
g. Photographs of garage and contents
h. Photograph of burned cell phone
i. Photographs of blood stain on Steven Avery's bathroom floor
j. Preliminary Hearing testimony of Forensic Anthropologist Dr. Leslie Eisenberg
k. Trial testimony of Forensic Anthropologist Dr. Leslie Eisenberg
l. Trial testimony of Forensic Scientist Nick Stahlke (Bloodstain Pattern Analyst)
m. Trial testimony of DNA Analyst Sherry Culhane (DNA Analyst)
n. Closing argument of Defense Attorney Dean Strang
o. Closing argument of Defense Attorney Jerry Buting
p. Closing argument of Prosecutor Ken Krat
q. Reports of the Wisconsin State Crime Laboratory
i. DNA (11/14/05)
ii. DNA (12/5/05)
iii. DNA (3/31/16)
iv. DNA (5/8/06)
v. DNA (12/4/06)
vi. Field response (11/05/05)
vii. Field response (11/06/05)
viii. Bloodstain Pattern Analysis (1/31/06)
ix. Firearms report (2/21/06)
x. Firearms report (5/10/06)
xi. Trace evidence (2/27/06)
xii. Trace evidence (5/26/06)
xiii. Fingerprints (3/8/06)
xiv. Fingerprints (4/26/06)
r. Two photographs of circled areas on cargo door
s. Portion of plastic dashboard from RAV-4 vehicle
t. Case communication record of Sherry Culhane
u. Excerpt of testimony John Ertl
v. Case communication record
w. Trial testimony of Kevin Heimerl
x. Chapters from Ken Kratz's book, Avery: The Case Against Steven Avery and what "Making a Murderer" Gets Wrong, pertaining to blood
4. All opinions rendered in this affidavit are based on new bloodstain pattern recommended terminology. Specifically, the use of velocity as a determinative characteristic of bloodstains was abandoned with the production of the Working Group on Bloodstain Pattern Analysis ("SWGSTAIN") terminology. Bloodstain analyst Nick Stahlke ("Stahlke") used velocity to define and interpret the bloodstain pattern observed on the rear cargo door of Ms. Halbach's RAV-4. (R.705:40).

*Opinions Regarding Blood in the RAV-4*
5. The purpose of this Supplemental Affidavit is to correct the wording in paragraphs 27 and 28 of my original affidavit. Paragraph 27 should state:

- Through a series of experiments that I observed, I have concluded to a reasonable degree of scientific certainty that the distribution of Mr. Avery's blood in various locations in the passenger compartment of the RAV-4 are consistent with purposeful behavior. The prosecution told the jury that all of the blood deposited in the RAV-4 was from the cut on the middle finger of Mr. Avery's right hand and that he was actively bleeding. (R.696:85). However, there was no blood on the door handle, key, gearshift, interior hood release, hood latch, hood prop, and battery cable.

6. Paragraph 28 should state:

- It is my opinion that Mr. Avery's blood in the RAV-4 is consistent with being purposefully distributed from a source because his blood is present in some locations but absent in some reasonably anticipated locations, such as those listed in ¶ 27. The absence of blood stains in these locations is inconsistent with an active bleeder.

*Opinions Regarding Ms. Halbach's Bloody Hair Pattern in the RAV-4*
7. To a reasonable degree of scientific certainty, it is my conclusion that the bloody hair patterns in the rear cargo area of Ms. Halbach's RAV-4 were created by her head resting on the panel while the car was moving, creating several bloody hair patterns.