Legal briefs have been submitted and a fierce debate over guilt and innocence has been waged. Now, a Wisconsin appeals court will determine whether Steven Avery’s conviction in the death of Teresa Halbach will stand.
Avery’s attorney, Kathleen Zellner, of suburban Chicago, filed her final brief with the District 3 Court of Appeals on June 25, clearing the way for the panel to review the case.
Meanwhile, Avery’s nephew Brendan Dassey, who also was convicted in Halbach’s death and is serving a life term in prison, is still hopeful that Gov. Tony Evers will grant his clemency request.
Evers has previously declined to consider a pardon for Dassey, but his attorneys and supporters continue to seek a favorable clemency ruling from the governor. No indication has been given that the governor will even consider the request.
The case gained international attention after being featured in Netflix’s docuseries “Making a Murderer,” released in December 2015. It cast doubt on the motives of police investigating Halbach’s death and left many viewers with the impression that Avery, 57, and Dassey, 30, were wrongfully convicted.
In Avery’s case, Zellner has asked the appeals court to either allow additional scientific testing and an evidentiary hearing, or reverse Avery’s conviction and grant a new trial.
“We’re going to win this!” Zellner wrote in a June 25 post on Twitter.
Prosecutors with the Department of Justice think otherwise, arguing that Avery’s requests for a hearing and reversing his conviction should be denied.
They asked the appeal court to reject Zellner’s arguments in a reply filed with the court in late May, arguing Avery’s claims were speculative, inconsistent and far-fetched, and that he “seems to erroneously believe that he is appealing the jury’s determination of guilt.”
“The question on appeal is not whether Avery is guilty of killing Teresa Halbach,” prosecutors argued. “That question was for the jury, which many years ago answered yes, beyond a reasonable doubt.”
In August 2019, Sheboygan County Judge Angela Sutkiewicz rejected Avery’s request for a new trial. Avery argued his conviction was flawed because state prosecutors were mistaken when they turned over suspected human bones to Halbach’s family without allowing his side to have them tested. There was no hearing on the issue.
A legal expert with no ties to the case says a hearing is justified, even though Avery still faces a daunting challenge to set aside his conviction.
“An appeal like this is inherently a long shot. After conviction, the presumption of innocence vanishes and a presumption of guilt takes hold. It takes a lot to rebut that presumption in a post-conviction filing like this,” said Daniel Medwed, professor of law and criminal justice at Northeastern University in Boston.
“That said, Zellner raised a number of important issues that, in my view, should be vetted in a thorough evidentiary hearing on the new allegations. Finality is an important value, to be sure, but it shouldn’t come at the price of justice. And in this case, I think justice at a minimum requires a full and robust hearing on whether Avery deserves a new trial.”
The court of appeals website lists the Avery case as “awaiting assignment.”
“I assume that means awaiting assignment to a decisional process, which could involve oral argument versus decision on the briefs alone,” said Michael M. O’Hear, professor of law at Marquette University Law School.
O’Hear said he expects a ruling from the court within eight to 12 months, maybe less.
Zellner has argued that Avery should be allowed to present new evidence she says shows inconsistencies in the state’s theory of the case, specifically that Halbach was shot in the head on Avery’s garage floor. She also claims a forensic fire expert was able to determine that no body was ever burned in Avery’s burn pit.
Jerry Buting, who represented Avery at his 2007 trial with attorney Dean Strang, said in a recent tweet that an evidentiary hearing is warranted. He said he appeals court is “likely to order a full hearing with testimony from witnesses and a new judge.”
Awaiting assignment means who the hell is the one grant the decision, and to turn Manitowoc SD and hierarchy upside down