John Ferak, and Andy Thompson

Post Crescent

MANITOWOC - The stakes are immense as the much-anticipated scientific testing of evidence in the 2005 murder of Teresa Halbach moves closer to reality.

A number of critical questions could be answered by the detailed inquiry, which was agreed to last week by attorneys for Steven Avery and the Wisconsin Department of Justice.

Will the results prove conclusively that Avery is justly imprisoned for killing Halbach?

Will they point to another person or persons as her killer?

Or will the tests be inconclusive, leaving Avery’s appeal in a holding pattern?

While there is a considerable amount of uncertainty about what the tests will reveal, one thing is certain — the DNA testing will be more advanced and more sophisticated than it was 11 years ago.

“Science has definitely improved in the last 10 years,” said attorney Jerry Buting, who, with attorney Dean Strang, represented Avery at his 2007 trial.

The majority of the evidence to be tested is blood that was found during the search of Halbach’s blue-green Toyota RAV4. The vehicle was found along the outer ridge of the Avery Salvage Yard in Manitowoc County on Nov. 5, 2005 — six days after Halbach vanished. She had visited Avery’s property to photograph a red van that he wanted to sell through the Auto Trader magazine.

“DNA testing of blood evidence has gotten very precise,” said Daniel S. Medwed, a professor at Northeastern University School of Law in Boston. “It’s fair to say that refinements in blood DNA tests can make it more accurate than in the past.”

Medwed said the re-testing of evidence in the Avery case, which was featured in the Netflix docu-series “Making a Murderer,” is a “noble development in the case.”

“When there are questions about guilt or innocence, I think we should exhaustively examine all of the scientific answers,” he said.

Medwed cautioned that DNA testing doesn’t always provide clarity when it comes to evidence.

“It’s important to have a measured approach to this development,” he said. “It’s possible that (the new testing) might not reach a different result, but more conclusive results when there were inconclusive results before."

Dr. Mark Perlin, CEO and chief scientific officer at Cybergenetics in Pittsburgh, said major advances have been made in the past five years.

“What has changed is the interpretation; the ability to look at complex signals from mixtures of two or more people — and get information from those mixtures,” Perlin said.

“Older methods would … tend to discard (certain) data. Newer methods can use computers and they can separate out the different genetic components that contribute to the mixture data.”

The process allows evidence to be compared to genetic characteristics of defendants and victims to determine if there are matches.

Perlin said huge samples aren’t needed to obtain important results.

“It really depends on the interpretation of the data,” he said.

Avery lawyer weighs in

Buting told USA TODAY NETWORK-Wisconsin that there have been significant breakthroughs in science and DNA research in the past decade that could provide new answers.

For example, the sophisticated scientific tests being pursued by Avery’s new lawyer, Kathleen Zellner, to determine the precise age of the blood stains from inside Halbach’s RAV4 “was not available back then,” Buting said.

“Had that type of testing been around (in 2007),” Buting said, “it might very well have made a difference. For one thing, it’s a more direct way to determine if the vial of blood found in the Manitowoc County clerk's office … was the source for police planting.”

At the time of Avery’s trial, the Wisconsin State Crime Lab and the FBI were involved in analyzing the blood evidence used to convict Avery. The FBI lab was asked to test the samples of blood found in Halbach’s vehicle for the presence of a preservative known as EDTA.

The FBI’s laboratory testing was considered a pivotal moment for the Halbach case because if EDTA was found in the blood, it would mean the blood was not from a fresh wound, bolstering Avery’s argument that the blood drops had to come from an old vial of Avery’s blood that was later discovered in an unsecured box at the Manitowoc County Courthouse.

Zellner's request in August that sought the new round of scientific testing leveled harsh criticism of the testing methods presented by the prosecution at Avery's trial, most notably from Marc LeBeau, head of the FBI's chemistry analysis action.

"The State, in order to refute the defense's allegations about planted blood evidence in the victim's vehicle, presented an FBI expert on the issue of whether EDTA, which was present in the 1996 blood vial, was also present in Mr. Avery's blood discovered in the victim's vehicle," Zellner stated in court documents. "The State's expert's opinion was based on unsubstantiated and unreliable data, but no other forensic testing was widely available or known by either side to determine the age of Mr. Avery's blood found in the victim's vehicle."

Radiocarbon testing "could definitively establish the age of Mr. Avery's blood found in the victim's vehicle and determine, based on the age, if the blood was planted," Zellner wrote in her court filing.

Testing protocols

The following items of evidence will be tested as part of the agreement between the state and the defense:

Blood flakes recovered from the floor near the center console of Halbach’s RAV4.

Bloodstain cutting from the driver’s seat.

Bloodstain cutting from passenger’s seat.

Swab of the RAV 4 ignition area where blood was found.

Swab of bloodstain taken from the rear passenger’s door.

Swab of bloodstain taken from a CD case found in vehicle.

A vial of blood said to be a sample of Avery’s blood from back in 1996.

A spare key for Halbach’s vehicle found in Avery’s bedroom by Manitowoc County Sheriff’s deputies

The swab from the hood latch of Halbach’s RAV4 that generated a DNA profile for Avery.

"Significantly, the Wisconsin Department of Justice State Crime Laboratory did not do chemical analysis of the hood latch for the presence of blood despite the fact that the State's theory at trial was that Mr. Avery had deposited significant amounts of blood in the victim's car from a cut on the middle finger of his right hand," Zellner argued. "Clearly, if Mr. Avery were bleeding in the victim's car, he would have also deposited blood, from his bleeding finger, on the victim's hood latch."

The nine items of evidence that Zellner asked to undergo advanced testing will be released to Calumet County Sheriff's Lt. Mark Wiegert and his agency’s evidence custodian at a time and date agreed upon by Wiegert’s agency and the clerk of the Circuit Court for Manitowoc County.

Once Wiegert receives the exhibits, he will bring them to the State Crime Laboratory in Madison, where the samples will be split in half. Sherry Culhane, the state’s DNA analyst, will split the evidence while consulting with Dr. Karl Reich, a forensic scientist from the Chicago area. Reich was designated by Zellner’s law firm to help facilitate the independent testing process.

“However, if cutting (the floor blood flakes) in half will result in an insufficient sample to conduct Radiocarbon testing, the state agrees that the entire sample may be consumed to facilitate testing,” the agreement stated.

Zellner’s firm will pay all the costs associated with the scientific testing.

The agreement does not specify a time frame when the tests on the nine articles of evidence will be completed, but Zellner told USA TODAY NETWORK last week that she anticipated the testing could be done in 60 to 90 days.

John Ferak: 920-993-7115 or jferak@gannett.com; on Twitter @JohnFerak; Andy Thompson: 920-996-7270 or awthompson@postcrescent.com; on Twitter @Thompson_AW