The Wisconsin Court of Appeals has denied Steven Avery’s latest appeal in connection with the murder of Teresa Halbach — but it left the door open to hear additional issues in the future.
“We hold that Avery’s 974.06 motions are insufficient on their face to entitle him to a hearing and that the circuit court did not erroneously exercise its discretion in denying the motions to vacate and for reconsideration. Accordingly, we affirm,” the court wrote.
The ruling can be appealed to the Wisconsin Supreme Court.
Avery is serving life prison for killing the freelance photographer in 2005.
The latest appeal dealt with a series of motions made to Sheboygan County Judge Angela Sutkiewicz, the circuit court judge now handling the case. Avery’s attorneys were seeking evidentiary hearings or a new trial, based on nearly a dozen claims, but all were denied.
In the 49-page ruling, the appeals court addressed several issues:
- Avery’s claim that his trial counsel were ineffective for not bringing forward certain evidence was rejected. “Avery has failed to show that, even if all these findings were admitted at trial, the result would have been different. Consequently, Avery has not alleged sufficient material facts entitling him to a hearing on his claims of ineffective assistance of counsel,” the court wrote.
- Avery’s claims the state withheld evidence favorable to him was rejected. “Avery suggests that the information in the affidavit supports his claim that law enforcement framed him for the crime by driving the RAV4 through the neighbor’s property and planting it on his. This argument is unintelligible and, in any case, we cannot perceive any Brady violation. There was no evidence here to suppress, and the facts in the affidavit are inconsequential,” the court wrote.
- Avery’s claim of newly discovered evidence related to a bullet and DNA sample from Halbach’s car was rejected. “At the very least, Avery’s new evidence—if it in fact is new—is consistent with the State’s theory of the crime,” the court said for the bullet. “There is no possibility that the presentation of this evidence would have yielded a different trial result,” the court wrote on the DNA.
- Avery’s request for a reconsideration of an October 2017 decision was rejected.
- Avery’s request for reconsideration regarding a July 2018 motion on a DVD and implicating Bobby Dassey was rejected. “Without any showing or argument as to why the impeachment of Dassey would have undermined the cumulative effect of the other evidence, we cannot conclude that the trial’s outcome would have been different. We conclude that the circuit court did not err in denying the July 2018 motion without a hearing,” the court wrote.
- Avery’s claim the release of bone fragments to the Halbach family was potentially exculpatory was denied. “Contrary to Avery’s argument, the very fact that the State released the bones does not mean that these are Halbach’s or that the State acted in bad faith to “destroy” this evidence. The Halbach family requested these bone fragments for purposes of its own—likely for closure—but that does not vest these fragments with evidentiary significance,” the court wrote.
- Avery’s request to stay these motions because of a claim a witness saw Bobby Dassey pushing Halbach’s vehicle was rejected, with the court saying it should be subject of a new, standalone motion. However, “Avery will need to demonstrate why he could not have previously raised this claim, including in his June 2017 motion, before the merits can be reached.”
Avery’s attorney, Kathleen Zellner, posted on Twitter that the decision “pointed out the specific doors that are still open for Mr. Avery’s quest for freedom.”
Wisconsin Attorney General Josh also reacted to the court’s decision, releasing a statement:
Today’s decision thoroughly and conclusively rejects the claims made in this appeal, bringing this conviction for a terrible homicide a significant step closer to finality. Thank you to the team at Wisconsin DOJ that successfully demonstrated that this appeal was without merit.
In its conclusion, the court expanded its comments on the overall reasons for the denials:
Avery raises a variety of alternative theories about who killed Halbach and how, but as the State correctly notes, a WIS. STAT. 974.06 motion is not a vehicle to retry a case to a jury. A criminal defendant is constitutionally entitled as of right to a jury trial and, if convicted, a direct appeal. If he or she later seeks to collaterally attack the conviction on constitutional or jurisdictional grounds, a 974.06 motion is appropriate. But key to any 974.06 motion are sufficient, nonconclusory showings both as to why the issue was not raised in an earlier postconviction proceeding and why the claim has facial merit. These requirements are not optional and cannot be met through broad conclusions or by misstating evidence.
We express no opinion about who committed this crime: the jury has decided this question, and our review is confined to whether the claims before us entitle Avery to an evidentiary hearing. We conclude that the circuit court did not erroneously exercise its discretion in denying hearings on Motions #1, #4, and #5; in not vacating its order on Motion #1; and in not reconsidering its ruling on Motion #1. As for Motion #6 and the portion of Motion #3 (the motion to reconsider) raising new claims, we leave open the possibility that Avery may raise these claims in a new WIS. STAT. 974.06 motion. We remind Avery, however, that he will need to overcome the Escalona-Naranjo procedural bar on these claims, which includes providing a sufficient reason for not raising them in his June 2017 motion. Moreover, Avery will need to satisfy the previously discussed specificity requirements before such claims may proceed to a hearing.
Avery’s nephew Branden Dassey was also convicted in the case. All of Dassey’s appeals have been denied, as well.
Their cases received worldwide attention with the 2015 release of the Netflix series “Making A Murderer.”