Kathleen Zellner: Cell Tower Records Give Steven Avery an "Airtight Alibi"

March 08, 2016
By: Amelia McDonell-Parry

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Yesterday, Steven Avery’s new lawyer, Kathleen Zellner, stopped by her favorite place — Twitter, obviously — to drop yet another teasing (alleged) bombshell about the case made famous by Netflix’s Making A Murderer. Via Uproxx, Zellner tweeted:

Cellphone tower records of SA & TH provide airtight alibi for him. She left property he didn't. #MakingAMurderer #UnmakingAMurderer

— Kathleen Zellner (@ZellnerLaw) March 6, 2016

Oh man, even just seeing the words “cellphone tower records” gives me goosebumps, thanks to the many hours I spent writing about the way they were used in Adnan Syed’s case. Cell tower evidence is often pretty garbage, or is at least easily misinterpreted and misleading, varies depending on the mobile carrier and, when reviewing records this old, requires information that might not be readily available. The cell towers that currently exist are not going to be reliable when reviewing the cell tower data on phone records from 2005.

Both Avery and Halbach’s records were used during the 2006-2007 trial, but the attorneys really only focused on the calls themselves and the time they were made/received, not the cell towers that were pinged for those calls. (There was also the testimony about Halbach’s missing voicemails.) StevenAveryCase.org has almost all of the case files, including Halbach’s Cingular Wireless subscriber activity report, Halbach’s Cingular Wireless contract and a page identified as Avery’s call log, which shows just the outgoing calls made on the day of Halbach’s disappearance. A fourth document says that Avery had a cellphone account with Cellcom Wireless, but all the information about his phone records have been excerpted from the official documents.

Another thing that makes the available documents difficult to assess is the fact that there is little in the way of instructions for reading them. Going back to the Syed case, one of the primary reasons that a hearing was called in February was to contest the way that the cell tower data was used to determine the location of Syed and his phone, based on the fact that the expert who testified at trial was not provided with instructions. There are no instructions associated with what’s available from Avery’s records, and the available photocopy is of very poor quality, making it difficult to read. That being said, the trial exhibit of Avery’s records does appear to include columns related to cell towers, but again, without instructions, those columns are impossible to understand. It’s unfortunate that Avery’s complete phone records don’t appear to have been introduced at trial, but maybe Zellner has them.

Halbach’s cellphone account was with Cingular, a much larger company than Cellcom, and the exhibit of her records is more robust:

In terms of instructions, the only thing I could find related to the cell towers is a note on each page of Halbach’s subscriber activity report which states: “Information in the Last Cell column does not indicate the last cell site used in call processing.” There are two columns on the call log that seem to refer to cell towers: LCell, or Last Cell Tower, and ICell, for Initial Cell Tower. Based on the instructions, the Last Cell column is useless for determining location, at least without further information. The ICell tower could be much more helpful, but without knowing which tower coincided with which ICell code and what areas were covered in 2005, it’s hard to make much sense of the information — cell towers can have overlapping coverage areas, which is why an expert in historical cell site analysis is the only person who can really make much sense of these documents.

The other difficulty in reading Halbach’s records lies in the fact that the last call received before her phone was turned off and/or destroyed was at 2:41:59, from an unknown caller who appears to have been manually forwarded to voicemail and left a 60-second message starting at 2:43. The content of that VM is unknown. The next call she received was from Avery, lasting 13 seconds, at 4:35 p.m. – but because the phone was not on, there’s no cell tower data, at least not on these records, for that call and every call after. According to the prosecution, the Avery property was where Halbach was last seen.

The problem with this case, of course, is that the timeline is all over the place for that afternoon, from about 2 p.m. on, largely depending on which witnesses you believe. According to Bobby Dassey, Halbach arrived at the Avery property around 2:30, which aligns with Avery’s claims that Halbach arrived and left by 2:45. However, the school bus driver who dropped off Brendan Dassey said she saw Halbach taking photos on the property around 3:30-3:40, while another witness said he saw Halbach’s RAV-4 leaving the Avery property sometime between 3:30-4 p.m. Dassey, of course, confessed that after he got home from school at 3:45, he walked the mail over to Avery’s trailer and heard Halbach’s screams around 4 p.m. Dassey later recanted his confession and has maintained that he had nothing to do with her death and never saw her at Avery’s that day, or at all. Dassey did not testify and his confession was not introduced as evidence at Avery’s trial, but he was tried and convicted separately based on the details in his confession.

In February 2007, during Avery’s trial, the wife of another of Halbach’s clients, JoEllen Zipperer, testified – though not with much certainty – that Halbach arrived to take photos of a car on their property in the mid-afternoon, On direct examination, she said Halbach arrived around 3 p.m. and stayed for around 15 minutes, but then admitted to the defense during cross-examination that she could have arrived anytime after 2 p.m. However, in her initial statement to police on November 6, Mrs. Zipperer said that Halbach was there between 2-2:30 p.m. Halbach’s phone records indicate she called the Zipperers just after 2 p.m. and left a message — Mrs. Zipperer testified Halbach’s message said she was having a hard time finding their house. But Halbach received a call from the Auto Trader office just before 2:30 p.m., and she told them she was 10 minutes away from the Avery property.

All of this has led some to question if the Avery property was actually Halbach’s final appointment on that work day. Perhaps Zellner has been able to gain access to more detailed cell tower information that can trace where Halbach’s phone was when it was off? Maybe she has cell tower records for the incoming calls Avery received?Given that at least some cell tower information was available to the defense during trial, you would think they would have used it if it offered some semblance of an alibi for Avery – but it’s peculiar to me that his cell records are so bare bones and poorly photocopied.

I guess we will have to wait to find out what Zellner has up her sleeve. In the meantime, I’m going to try to get a historical cell site expert on the horn to help me make sense of the records that were available during trial, as well as gain some insight as to what NEW information might be available now. Stay tuned!