A judge on Monday decided to allow testimony from an FBI witness who said tests showed that a vial of Steven Avery's blood could not have been planted as evidence against him.
Judge Patrick Willis also ruled against a defense request for a mistrial or a delay of several months so the defense could conduct tests on the blood. He also ruled against a request to use public money for the tests.
Avery, 44, is on trial for murder in the death of 25-year-old photographer Teresa Halbach near his family's auto salvage lot on Oct. 31, 2005. Her sport utility vehicle was found on the lot a few days after her disappearance. Investigators found blood from Halbach and Avery inside.
Brendan Dassey, Avery's 17-year-old nephew, is also accused and scheduled for trial next month.
Avery was released from prison in 2003 after serving 18 years for a rape that DNA analysis showed he did not commit. He later settled a wrongful-conviction lawsuit against Manitowoc County for $400,000.
Avery's attorneys claim deputies used a vial of blood found unsealed in the county courthouse to plant blood in the vehicle because they were ashamed about the lawsuit and convinced Avery murdered Halbach. The 11-year-old vial was left over from Avery's appeals of his conviction.
Marc LeBeau, chief of the chemistry unit at the FBI lab in Virginia, testified Monday, outside the presence of the jury, that he thought the blood found in Halbach's vehicle did not come from the vial because the stains did not contain a blood preservative, EDTA, that was in the vial.
Defense attorney Dean Strang argued Lebeau could not say how much the sample degraded from 2005 until it was tested in 2006 and it was suspicious that the preservative wasn't found in control samples given its prevalence in the environment.
Willis ruled against the mistrial and delay, saying Strang's arguments went to the weight of evidence, and that will be decided by the jury. He also said Monday that the defense had plenty of time to test the vial on its own.
LeBeau testified Monday that his lab received three samples of blood found in Halbach's Toyota Rav4. He said he tested them for EDTA, which was in the blood vial. He said his opinion was that Avery's blood stains in Halbach's vehicle did not come from that tube.
On cross examination, defense attorney Jerome Buting said the first and last time the test was done by the FBI was during the O.J. Simpson murder case in the mid-1990s. LeBeau said no law enforcement agency has asked them to do it since.
Buting pointed out that the protocol created by the FBI in the Simpson case was later criticized by scientists as being hastily devised. LeBeau also admitted that no scientists outside the agency had reviewed it. The protocol is different now because the FBI office moved and has newer equipment, LeBeau testified.
After court, Buting said both sides in the Simpson case were allowed to test mid-trial for EDTA. He said Willis' decision was the first time ever that a judge allowed such results to be admissible without allowing the defense to perform tests.
"We view this as a Hail Mary pass by the state," Buting said. "They feel their case was weak enough that they needed to take a chance to build a ready-made appeal issue into the case."
Gahn said the FBI expert vindicated the deputies Avery accuses of framing him.
This week is the fourth week of testimony in the trial, which was expected to last around six weeks. Forty-seven witnesses have testified for the prosecution so far.