Affidavit of John DeHaan

**John DeHaan's affidavit** is an affidavit signed by forensic fire consultant John D. DeHaan and used in Kathleen Zellner's June 2017 *Motion for Post-conviction Relief*. In the affidavit DeHaan gives his analysis of the burn pit, the burned remains, other items found near the pit and whether the State's theory of Steven Avery and Brendan Dassey burning the body in the pit is credible.

## Affidavit of 25 May 2017

**Now comes your affiant, John D. DeHaan, Ph.D., and under oath hereby states as follows:**

## Affidavit of John D. DeHaan, Ph.D.

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15 (without exhibits)
69 (with exhibits)

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1. I am of legal majority and can truthfully and competently testify to the matters contained herein based upon my personal knowledge. The factual statements herein are true and correct to the best of my knowledge, information, and belief. I am of sound mind and I am not talcing any medication nor have I ingested any alcohol that would impair my memory of the facts stated in this affidavit.
2. I, John D. DeHaan, Ph.D., am currently an independent forensic scientist/fire consultant. A copy of my CV is attached as Exhibit A to this affidavit. In the course of my professional practice, I have been a forensic scientist/criminalist since 1970, having served with the Alameda County Sheriff's Department, California Department of Justice - Bureau of Forensic Services, and the U.S. Treasury Department - Bureau of Alcohol, Tobacco and Firearms. I have served as President of Fire-Ex Forensics, Inc. since its incorporation in January 1999. I have been involved with various aspects of fire and explosion investigation since 1971. In the past 12 years, I have testified as an expert witness in over 50 cases. Information about those cases is listed in Exhibit A. In the past 30 years, I have authored a major textbook, co-authored one textbook, chapters in three textbooks, and over 30 articles; and the titles are listed in my CV, Exhibit A.
3. I have been retained by Kathleen T. Zellner & Associates, P.C., to review all of the available evidence in the above-captioned case - including trial testimony, police reports, maps, photographs, animated reconstructions, and forensic anthropology reports - pertaining to the circumstances surrounding the discovery of the skeletal remains of Teresa Halbach on the Avery salvage yard. A list of materials I reviewed is attached as **Exhibit B** to this affidavit.
4. All opinions expressed in this affidavit are based on review of the materials submitted to date and reliable published data, as well as extensive personal knowledge of laboratory analysis, fire dynamics, ignition processes, flame spread, fire growth, and fire and explosion indicators. They are expressed to a reasonable degree of scientific certainty based upon my expertise in the field of forensic fire and fire debris examination. If additional information becomes available that has a bearing on these conclusions, these conclusions will be amended or supplemented appropriately.

**I. OVERVIEW OF THE SCENE**

5. The Avery property is an approximately 40-acre, roughly square parcel in Manitowoc County, Wisconsin. It is situated south of Highway 147 about five miles east of I-43, just under ten miles northwest of Two Rivers, Wisconsin, and approximately 25 miles southeast of Green Bay, Wisconsin. The area surrounding the Avery property is rural, being primarily composed of farms and forests. On November 5, 2005, when law enforcement took the Avery property under its control, there were buildings used by the family business ("Avery's Auto Salvage," automobile salvage and wrecking) in additional to multiple residences. The primary entrance to the Avery property was at its northeast corner, where Avery Road extended due north to Highway 147. In the northeast corner of the Avery property stood four business buildings, including a business office, garages, and storage space. Also in the northeast corner was the residence of Dolores and Alan Avery. A dirt lane ran from Avery Road southwest past the business office and garage and into the wrecked car yard, commonly called the "pit." Another dirt lane ran due south from Avery Road. Along this lane, south of the business office and garage, was Charles Avery's residence. This lane ultimately led into the pit in the area of a vehicle crusher situated on the eastern border of the property. A third dirt lane ran due west from Avery Road. At the end of this lane, in the northwest corner of the Avery property, were two residences situated approximately 65 yards apart. Each residence had a detached garage. Nearest the northwest corner of the property was Steven Avery's residence. To the east of Steven Avery's residence was Barb Janda's residence, which she shared with her four sons. In the southwest corner of the Avery property, there was a dirt lane that ran immediately adjacent to an old gravel conveyor. This lane connected the Avery property to the gravel pits to the south. Within the car pit area, there were numerous dirt lanes separating rows of wrecked vehicles.
6. There were at least seven burn barrels on the Avery property when it was taken under law enforcement control on November 5, 2005. Steven Avery had one burn barrel approximately 40 yards north east of his residence in a fallow field that bordered the Avery property to the north. There were four burn barrels situated in a cluster to the south of Barb Janda's residence. There was one burn barrel situated to the west of Delores and Alan Avery's residence. There was one burn barrel situated to the west of Charles Avery's residence. All seven burn barrels were reportedly regularly used to burn common garbage, e.g., from the kitchen or bathroom. The "burn pit" behind Steven Avery's garage was reportedly routinely used to burn household and automotive discards, trash, and animal remains.
7. The Avery property was bordered on its south and west sides by active gravel pits operated by Fred Radandt Sons, Inc. Several burn barrels of various sizes were observed within the Radandt pits. Manitowoc County operated a gravel pit to the south of the Radandt pits. The Manitowoc County pit did not border the Avery property.

**II. DISCOVERY OF BONES IN STEVEN AVERY'S BURN PIT**

8. There was a "burn pit" on the south end of a low gravel mound that extended south of Steven Avery's garage. The gravel mound was one to two feet in height and roughly circular in shape with a diameter of approximately 30 feet. (Items 19, 21, and 6:TT:2/28:16-17). The burn area was rectangular with a length of approximately six feet and had been dug out of the gravel mound down to native soil (TT:2/28: 17). On November 8, 2005, Sgt. Jason Jost of the Manitowoc County Sheriff’s Department observed what he suspected may be a vertebra on the grass outside the south edge of the "burn pit". (Items 8 (Report of Manitowoc County Sheriffs Department Sgt. Jost, 11/8/05, STATE 97, and 19, and TT:2/28:17)). When S/A Sturdivant confirmed it as bone, the "burn pit" was cordoned off to await forensic examination.
9. The burned remains of vehicle tires, unburned tires, various hand tools, and a vehicle's bench seat were recovered in the vicinity of the burn pit. (TT:2/28:14). Sgt. Jost observed the following items "in and around the area of the burn pile:" numerous wire rings (from tires), an unburned tire, a rubber mallet, claw hammer (fire damaged), a gravel shovel, burned/charred metal scraper with a wooden handle, and burned vehicle bench seat. Apparently no examination was performed to establish if any trace evidence linked these items to the death of Ms. Halbach or the burning of her body.
10. The burned debris reportedly appeared to have formed a "hard crust", possibly as a result of the rain that had fallen in the area between Saturday, November 5, and Monday, November 7, 2005. (Item 11: Report of Calumet County Sheriff’s Department Lt. Sippel, 11/8/05, STATE 1361-62). Around 3:00 p.m. on November 8, 2005, personnel from the Wisconsin State Crime Lab set up their sifting apparatus, which consisted of two sifting screens suspended under a tripod, all on top of a tarp to catch particles that passed through both screens. (TT:2/19:51-52). Crime lab personnel lifted the burn pit material using hand trowels and a square-nosed shovel and dry sifted it over a tarp. (Item 7:TT:2/19:52-54). No forensic anthropologist was present for the excavation of the burn pit. Crime lab personnel, untrained in anthropology, visually examined potential skeletal fragments to determine their evidentiary value. (TT:2/19:53, 123). There was no effort to document from where in the burn pit certain bones were recovered or otherwise document the order with which bones were situated in the burn pit. The crime lab personnel excavating the burn pit placed items of potential evidentiary value in a single box (Tag #8318) and sent it to Dr. Leslie Eisenberg for offsite examination. (TT:2/19:128). The tarp was folded up and later examined in the lab (as Tag #7923)
11. On November 10, 2005, personnel from the Wisconsin Department of Justice (DCI) returned to the Avery property and further excavated the burn pit area. Again there was no forensic anthropologist called to the scene to conduct this secondary excavation. The burn pit was first excavated by hand (TT:3/7:18), then dug out using "Bobcat" type, front-loading tractors. (TT:3/7:75, photos, Item 26). During the process of excavation, some apparent bone fragments were observed among steel wires that resulted from burned tires. (TT:3/7:19-20). Items of potential evidentiary value were collected and sent to Dr. Leslie Eisenberg for off-site forensic examination.

**III. DR. LESLIE EISENBERG'S EXAMINATION OF BONE FRAGMENTS**

12. The suspected bones and teeth were examined over a period of weeks by forensic anthropologist Leslie Eisenberg, Ph.D. Based upon her examination, she concluded that the numerous human bone fragments recovered were most probably from an adult female less than 30-35 years of age. (Items 1-4,TT:2/28:137-38). Due to patterns of damage to several fragments of skull and minute metal fragments, Dr Eisenberg concluded that the victim had been shot in the head. (TT:2/28:164-66; TT:3/14:104). She also concluded that a number of the bone fragments (in Tag #7964 and Tag #8675 (suspected human)) showed evidence of crushing or cutting with a tool (per Item 4)
13. The fragmentary skeletal remains examined by Dr. Eisenberg constituted only an estimated fraction (from 40 to 60 percent) of the total mass of expected skeletal remains from a person of Teresa Halbach's size. (TT:2/28:226).
14. Dr. Eisenberg determined that the defects observed in cranial fragments from Steven Avery's burn pit, which were linked to gunshot wounds through the examination of radiopaque particles observed in radiographs, were created before the burning event. (TT:2/28:165).
15. Dr. Eisenberg was unable to determine with any certainty whether the bone fragments in Tag #8675, which appeared to be from a pelvis, were human in origin. However, Dr. Eisenberg testified that these bone fragments were burned and calcined to the same degree as the bones recovered from Steven Avery's burn pit. (TT:3/1: 10, 27). Further, Dr. Eisenberg identified that two bones recovered from the Manitowoc County gravel pit were still articulated, that is, they had maintained either anatomical continuity. (TT:3/1:26).

**IV. Dr. DeHAAN'S ANALYSIS**

16. It is my opinion that the documentation, examination, and recovery of the remains at the Avery scene were all below acceptable professional standards of practice. A properly conducted recovery would have involved more comprehensive photography of the burned bones in the "burn pit" and better documentation as to from where and when all bones were recovered. It is my opinion that someone better qualified to recover potential human remains should have been summoned to perform this excavation. There were incomplete and confusing descriptions of where various possible "burn barrels" were located with incomplete numbering and chain of custody. The critical first excavation and recovery (on 8 Nov 2005) was rushed and, when darkness fell, aided only by flashlights.
17. The appearance of the remains as found is often critical to the reconstruction of a fatal event or the destruction of a body. In this case, the minimal photographs taken before the excavation revealed very little useful information as there were few close-up photos taken before or during the recovery/excavation process. In the pre-excavation overall photos, the area of interest was largely obscured by the shadows cast by the team of investigators standing nearby. In the few photographs of the "burn pit", there appeared to be numerous dried leaves that obscured nearly all identifiable detail of the material below (Item 27). From Sgt. Jost's and Wisconsin DOJ Special Agent Sturdivant's descriptions, it appeared that the remains showed no anatomical relationship to each other. Some remains were found outside the "burn pit" and no large bones (more resistant to fire) were visible at all. There was not sufficient pre-excavation documentation of the condition of the materials in the pit to establish the sequence or time of deposit of the remains ultimately recovered from the "burn pit". There was no assessment of fuels associated with the fire, other than describing the remains of the steel belts and beading of burned vehicle tires.
18. The undersigned has had extensive experience with the combustion of human and animal remains under controlled conditions, both as part of enquiries related to active casework and as an instructor in the Forensic Fire Death Investigation Course (FFDIC) presented annually by the SLOFIST fire investigation group since 2008. I have had the opportunity to see some 50 or more unembalmed adult, human cadavers exposed to a variety of real-world fires. These range from "accidental" kitchen fires, to whole room, post-flashover structure fires, to trench- and "roadside" body disposals, to vehicle fires to dumpster and burn barrel disposals. Two of the primary instructors are forensic anthropologists Dr. Allison Galloway from the University of California -Santa Cruz and Dr Elayne Pope from the Virginia State Medical Examiner's Office. We all assist in the preparation of the "demonstration" fires set as practical exercises for the students, observe the fires, and document the results (and the investigations/recoveries conducted by the student teams).
19. As described in *Kirk's Fire Investigation*, (Kirk's Fire Investigation, 7th ed., J.D. DeHaan and D.J. Icove, Pearson/Brady Publishing, 2012, pp619-631) destruction of a human body by fire is a progressive process. Upon first sustained exposure to fire, the skin shrinks, chars and splits, exposing the subcutaneous fat. The fat renders out to support a flaming fire adjacent to the body. The muscle tissues dehydrate, char, and burn (reluctantly). Bones are a composite of minerals and organics (fat, nerves, and collagen). The organic components dehydrate, char, and burn off if exposed to sufficient external heat. The mineral component (of both the dense cortical bone (hard outer layers) and the spongy (cancellous or trabecular) structures within) then decompose by dehydration of the minerals, a process called calcination. Extreme exposure to fire results in loss of mechanical strength. Calcined bones are usually white, blue-white, or light grey in color and are friable (brittle), and are easily broken or shattered by contact or pressure. Under some conditions, the mineral residues can harden or vitrify into a ceramic-like mass retaining the shape of the original bone.
20. Many of the bone fragments shown in Dr. Eisenberg's forensic anthropology photographs (Item 20C and 20E) appear to be coated with a yellow or tan soil or dust. Dr. Eisenberg reported that she rinsed some of the recovered bone fragments to allow detailed examination. The bone fragments shown in Dr. Eisenberg's forensic anthropology photos largely consisted of fragments 1-4cm in length (0.4 to 2"). Many were completely calcined with no charring of organic tissue visible. Others bore charred residues of organic material in the cancellous or spongy structure within. Such damage can be induced by exposure to an open-air fire of ordinary combustibles for six to eight hours or for shorter times (three to four hours) in a well-ventilated fire in a metal enclosure such as a burn barrel or automobile trunk.

*Burn Barrel Destruction of Adult Human Bones*

21. Based on the author's experience in exposing adult human cadavers to a variety of fire conditions, it was observed that a metal enclosure confines the flames to maximize their exposure to the body, reflects heat from the fire onto the target within, and generates radiant heat as the metal itself heats, adding to the total heat flux during the combustion of the body. It is this combined heat flux that occurs within a commercial crematorium, where the radiant heat from the firebrick lining and the sustained uniform flame contact from gas burners bring about full cremation of an adult human body in two and one half hours or less. In open-air "field" cremations, exposure to the flames is not uniform, there is minimal additional radiant heat, and charred masses of soft tissue will survive even a prolonged fire, particularly around the head or lower torso. Bodies that burn undisturbed will often demonstrate areas of less-burned tissue that has been somewhat protected by contact with the ground or confining vessel for the duration of the fire.
22. The heat output of a fire largely fueled by an adult human body is limited (estimated to be on the order of that of an office wastebasket fire). The more massive tissues and bones require a larger, more sustained fire to be consumed (or calcined). This can be accomplished with the inclusion of a vehicle tire because it will burn energetically for extended periods of time. If a body is allowed to burn undisturbed to completion in either an enclosure or a well-fueled and ventilated fire, the larger bones will retain their relative anatomical position-head, neck, shoulders, upper arms (humerus), spine, hips (pelvis), upper legs (femurs). The process of stoking a fire with additional lumber or stirring with an implement during its active burning will cause the mechanical destruction of the bones as they are calcined by the flames and often, considerable displacement. The larger bone masses (hip joints, shoulder blades, base of skull at the spine) will remain mostly intact even after stoking an extended cremation of an adult body. The appearance, size, and type of bone fragments documented in Dr. Eisenberg's forensic anthropology reports and photographs exactly mirror the fragments recovered after burn-barrel cremations involving frequent stirring and stoking observed by this author. Such destruction was observed in wood-fueled, burn barrel cremations as short as three and one half hours. (See photos, **Exhibit C**). In one recent case investigation, the accused described stoking a large, wood-fueled "pyre" with numerous adult human bodies for some 15 hours, then crushing most of the bones with rocks or wood clubs, and then removing the larger, more identifiable body parts that survived for disposal in the river. The hundreds of small fragments that were recovered from the burn site were very similar in size, shape, and condition to the fragments in Dr. Eisenberg's forensic anthropology photos in this case. Note this involved no confinement except for the wood fuel and was accomplished over a span of 15 hours in an open-air burning pit.

*Electronic Components From Steven Avery's Burn Barrel Exposed to Moderate Fire*

23. Trial Exhibits 405-413 consist of photos of partially burned Motorola cell phone components and photos of an exemplar device. The components do appear to be from the same model cell phone. The burned components were exposed to a moderate fire that has scorched and melted the plastic surfaces, possibly from an ordinary combustible fire fueled by paper and/or cardboard.

*Burn Barrel versus Open Burn Pit: Required Duration of Burning*

24. It is the opinion of the undersigned that the human remains recovered and examined by Dr. Eisenberg were physically entirely consistent with cremation of an adult humanbody in a "field" cremation involving a sustained and re-stoked fire for an extended period of time. In tests conducted as part of FFDIC exercises, open field (roadside dump) fires on flat ground, it was observed that the more massive portions of the adult anatomy (base of the skull, shoulders, pelvis) were charred but were not reduced to calcined bone fragments in fires lasting 4-7 hours, but they did retain their anatomical relationship unless mechanically stirred during the fire. The duration of the fire necessary would depend on whether the fire was in the open (like the shallow "burn pit" suggested by the investigators) or in a well-ventilated metal vessel such as a large drum. Such destruction has been seen to be accomplished in as little as three and one half hours in a well-ventilated, well-tended 55 gallon steel drum with wood fuel. Similar destruction in an open pit would require much more time, on the order of six hours or more.

*Teresa Halbach 's Body Was Not Burned In the Burn Pit Behind Steven Avery's Garage*

25. It is further my opinion that the body was not burned in the "burn pit". This is based on the reported lack of anatomical continuity of the remains, the findings of similarly charred/calcined fragments in burn barrels and other locations on the property, and the absence of the more massive fragments that normally resist such exposure. I disagree with Dr. Eisenberg's opinion that the main destruction of the body took place in that "pit" based merely on the amounts of remains recovered from the pit compared to the small fragments found elsewhere in two locations (one being a burn barrel from behind Barb Janda's residence and the other, a burn site in the Manitowoc County gravel pit (Evidence Tag No. 8675)). On this issue, I agree with Dr. Fairgrieve's testimony (Item #5) that the location where most of the burned remains are found is not in itself proof of the location of the fire that destroyed the body. I have observed transfers of heavily burned remains under a variety· of conditions that resulted in the largest amount of the fragmentary remains being transferred to another location (with the loss of anatomical relationships). As stated above, the reported lack of anatomical continuity of the human bones recovered from Steven Avery's burn pit indicates that Teresa Halbach's body was not burned there. Therefore, it is my opinion that someone transferred Teresa Halbach's bones to Steven Avery's burn pit. The discovery oflarger fragments outside the margins of the burn pit (Tag #7942, 7943, 7944, 7947, and 7948, per DCI evidence list, Item 31) and the finding of human bone fragments with similar degrees of fire damage in numerous other areas (including burn barrels on site) is also consistent with the "dumping" of burned remains into the pit, with some rolling away. I have observed the survival of numerous calcined small bones after being dumped from a burn barrel or similar enclosure onto a tarp or examination table. It should be noted that there were numerous steel vessels on the salvage yard and surrounding properties that could have been used to burn a human body. These were not examined. The wood-fueled boiler and smelter were examined by S/A Pevytoe and no residues were detected there

**V. THE STATE'S THEORY OF THE BURNING IS INCORRECT**

26. From my review of documents provided to me, the State represented to the jury that Ms. Halbach's body was burned in an open-air burn pit behind Steven Avery's garage from around 7:00 p.m. to 11:00 p.m. on October 31, 2005, a period of only four hours. (Item 28:TT:3/14:94-95). Based upon my review of the descriptions and photographs of the bone fragments analyzed by Dr. Eisenberg, the State's theory is not supported by the physical evidence. As described above, burning a body in an open-air burn pit takes six to eight hours to accomplish thermal destruction to the degree I observed in Dr. Eisenberg's reports and photos. It is my opinion that the burned bones found in Steven Avery's burn pit could not have been burned to the degree I observed after four hours of burning in an open-air pit like the one behind Steven Avery's garage.
27. It is my opinion that the State's theory was also incorrect in its assertion that the burned vehicle bench seat was used to fuel the burning of Ms. Halbach's body. (TT:3/14:98). The burned remains of the bench seat were not found in the burn pit but near it. Its involvement as an external fuel to aid the combustion of a body in the burn pit is speculative and unsupported by any documents I have reviewed.
28. It is my opinion that the State's theory was also incorrect in its assertion that burned bones were intertwined with metal belts resulting from the burning of tires with the body. (Item 28: TT:3/14:99). The State represented to the jury that the bones were fused with the metal belts in a manner that suggested that the tires from which the steel belts came were burned with the body in Mr. Avery's burn pit. Based upon my review of photographs taken on November 8, 2005 and November 10, 2005, on the occasion of the second excavation of Steven Avery' s burn pit, the bone fragments appear to simply be mixed among the metal belts. I have had personal experience with burning steel-belted automobile tires in combination with human bodies. During fire exposure, the steel multistrand wires degrade, break, and fray to form bristles that readily trap any material coming into contact with them, during or after the fire. Small calcined bone fragments are especially easy to trap. This has been observed in test fires where the tires were under or alongside a burned body as well as on top. It should be noted that S/A Sturdivant noted (Item 19) that the guard dog's lead was sufficiently long to give him access to at least some of the burn pit. A quantity of the tire wires/belting was observed to be tangled in the dog's lead at one point. The recovery of "Item 7946: Co-mingled metal, battery jumper cables and dog leash, recovered adjacent to the burn pit" (In Item #31,STATE 0931) appears to confirm that. Dragging the tire remains across the burned debris fragments after the fire would result in the accumulation of fragments in the wire. The "burn pit" may have been used previously to dispose of tires (and the oily, black residue described by S/A Pevytoe as lining the pit in his excavation of 10 Nov 2005 would support that), so there was no evidence that the entrapment of the debris occurred during the fire that consumed the remains. From my review of these photographs and reports generated by law enforcement agents at the scene and Dr. Eisenberg in later examinations, there is nothing to suggest that the tires were, in fact, burned with the human bones recovered in Steven Avery's burn pit in the manner described by the State.

## See also

* List of affidavits for Zellner’s appeals
* *Motion for Post-conviction Relief*
* Steven Avery’s burn pit