Here’s the Latest Update on Steven Avery’s ‘Making a Murderer’ Appeal

There’s a new Making a Murderer update for advocates of Steven Avery’s alleged innocence, but it doesn’t mean too much just yet. The State of Wisconsin responded to Avery’s appeal brief by asking the court to uphold the decision to deny Avery a new trial.

Avery was convicted of murdering photographer Teresa Halbach on Halloween, 2005. He maintains his innocence. He was first denied an evidentiary hearing by Judge Angela Sutkiewicz in 2017.

Avery’s lawyer, Kathleen Zellner, appealed his case in October, and Wisconsin Assistant Attorney General Lisa Kumfer responded Thursday with a 130-page document.

The document rallies against the claim that Avery deserves a new evidentiary hearing after Zellner and team asked to submit new evidence for appellate consideration. Zellner’s initial argument claimed Avery should have a new trial for a few reasons. The brief said Avery’s trial attorneys were ineffective counsel and pointed to a few moments in which they claim the circuit court “abused its discretion” in failing to grant Avery an evidentiary hearing. Zellner also counted six potential Brady violations on behalf of the circuit court.

The 10 points Zellner listed in the brief:
1. Zellner states the circuit court “abused its discretion” in dismissing Avery’s requests for additional scientific testing.

2. Zellner says the circuit court deprived Avery of due process when the court denied Avery’s motion regarding Brady violations. Zellner says Brady violations happened when the prosecution failed to turn over all “exculpatory evidence” to the defendant. Zellner lists six potential Brady violations in her brief.

3. Zellner claims the circuit court failed to address Avery’s claim that he had ineffective counsel at trial. Zellner says Avery’s trial attorneys failed to call experts on blood spatter regarding testimony about Steven Avery’s blood in Teresa Halbach’s vehicle. Avery has claimed that blood from a cut in his finger was taken from his sink and planted in Halbach’s vehicle. “Suspiciously, there were no bloody fingerprints of Mr. Avery in or on the RAV-4 despite the fact that he could not have been wearing gloves when he allegedly deposited blood from the cut on his finger in the RAV-4,” reads the brief. Zellner hired a DNA expert who said testing refutes the state’s DNA evidence presented at trial. Zellner says Avery’s trial team also failed to “impeach the State’s primary witness.” Zellner cites the dueling stories of Avery nephews Bryan and Bobby Dassey. Bobby testified at court that he saw Teresa Halbach walking towards Steven Avery’s trailer on the day of the murder and saw her vehicle before he left the property. He said when he returned home the RAV-4 was gone. Bryan Dassey, however, told police that Bobby saw Halbach leave the property. That would contradict trial testimony. Zellner also says the defense team failed to establish a possible third-party suspect in Halbach’s boyfriend.

4. Zellner says the circuit court made a mistake when it said it was not authorized to resolve ineffective counsel claims.

5. Zellner says the circuit court “abused its discretion” in weighing scientific evidence rather than granting an evidentiary hearing. “The circuit court concluded that the ‘defendant’s experts. . . could not reach definitive conclusions regarding items of evidence without further testing,'” Zellner states.

6. Zellner says the circuit court “erred as a matter of law in applying the wrong standard to the newly discovered evidence.” “The circuit court ruling that in order for evidence to be “new,” the testing methods used to obtain it must not have been available at the time of Mr. Avery’s prior appeals and/or post-conviction motions is manifestly erroneous. That is not the standard,” says Zellner.

7. Zellner says Avery “raised sufficient reason as to why these issues could not have been raised in prior motions.” “Mr. Avery, who is learning disabled, simply lacks the legal acumen and financial resources necessary to advance an even arguably meritorious claim in a postconviction motion, let alone the claims raised based on countless hours of investigation and consultation with experts,” says Zellner. “As a result, Mr. Avery has sufficient reason for not including his current claim based on trial counsel’s failure to hire experts and to investigate and present evidence about the alternative suspect in his original postconviction motion.”

8. Zellner says the circuit court “abused its discretion in denying Mr. Avery’s motion to reconsider and his three supplements to said motion, which included new evidence developed after his original filing on June 7, 2017.” Zellner says new evidence includes the alleged Brady violations, new blood and ballistics expert reports, ineffective counsel, discussions about Bobby’s testimony, and violent pornography found on a computer in the Dassey home. Zellner also cites a conversation between Avery, his sister Barb, and Barb’s husband Scott Tadych. Barb is the mother of the Dassey boys. The conversation appears to contradict what Bobby said at trial. Zellner also cites a Barb Tadych Facebook post which contradicts Bobby’s testimony. “None of these issues were addressed by the circuit court in its original order to dismiss Mr. Avery’s motion. Nor could they, given that all of them were based on the discovery of new evidence that was either withheld from Mr. Avery or, through no fault of his own, was not in Mr. Avery’s possession at the time he filed his prior postconviction motions,” says Zellner.

9. Zellner says the circuit court “abused its discretion” in ignoring briefs submitted by the particies incident to the motion to supplement. “Mr. Avery filed a Motion to Compel for production of the examination of the Dassey-Janda computer that was was performed over an 8-month time period in 2017–18,” says Zellner. “The circuit court never ruled on Mr. Avery’s Motion to Compel.” Zellner’s forensic expert says there were “massive image deletions” from that computer. “Current postconviction counsel’s computer forensic expert
was unable to determine when the massive deletions occurred, leaving open the possibility that law enforcement was responsible for the deletions. Because the circuit court denied a hearing, the issue of the deletions remains unresolved,” says Zellner.

10. Zellner says the circuit court was mistaken in denying Avery’s supplemental motion regarding human bones in the Manitowoc County Gravel Pit. Avery filed a motion for a new trial based on alleged violations of Arizona v. Youngblood. Zellner says violations occurred when bone fragments found in a gravel pit were handed over to the Halbach family without informing Avery. Zellner says evidence was likely destroyed. “Based on the foregoing, Mr. Avery set forth sufficient material facts pertaining to the destruction of apparently exculpatory or potentially exculpatory human bone fragments to warrant an evidentiary hearing. Despite the circuit court’s erroneous ruling to the contrary, Mr. Avery is entitled to such a hearing on his claims because the material facts he alleged in his supplemental motion, (i.e., who, what, when, where, why, and how) are sufficient to show that he is entitled to relief,” says Zellner.

Wisconsin’s response denies the claims in Zellner’s brief. “Accordingly, the question on appeal is not whether Avery is guilty of killing Teresa Halbach,” it reads. “That question was for the jury, which many years ago answered yes, beyond a reasonable doubt. Nor is the question on appeal whether Avery’s latest counsel can construct a different trial defense, find new ways to attack the trial evidence, or identify issues that have not been raised previously.”

It continues: “The only question before this Court in this appeal is whether any of Avery’s motions entitled him to an evidentiary hearing. The answer to that question is no.”

So what does this mean for Avery? Zellner and Avery can respond to the state’s response by June 11. It will be up to the state to decide if Avery should be granted a new trial.

Zellner explained Avery’s reaction to the state’s brief in a comment to Newsweek. “Mr. Avery is not concerned about the State’s Brief. It demonstrates a poor grasp of the facts, uses boilerplate language and tries to erect every procedural hurdle to obscure the real issue that Mr. Avery suffered numerous constitutional violations that should result in an evidentiary hearing and/or a new trial,” she explained via email.

The state could allow Avery to present new evidence to a court, and potentially be absolved of his guilty verdict. Or, they may deny a new trial, leaving him in prison. If the latter happens, Avery can attempt to appeal to a higher court, as did his nephew, Brendan Dassey.

Dassey was convicted of Halbach’s murder, too, and was featured in Making a Murderer. Season 2 of the series follows Dassey’s process of appealing, which ended in the United States Supreme Court denying a new trial.

Backlash to the Wisconsin courts began publicly in 2015 after the first season of Making a Murderer premiered on Netflix. The documentary series shows claims that Avery is innocent, and Wisconsin law enforcement framed him. It wasn’t until seeing the first part that Zellner signed on as Avery’s lawyer. Her new findings are featured in Season 2, which aired in 2018. Right now, it’s not clear if there will be a Season 3.

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Link to read the full Document