The Court of Appeals’ denial is full of errors

Amazing Reddit post by Temptedious

The Court of Appeals’ denial of Steven Avery’s request for an evidentiary hearing is full of errors and omissions that strongly undermines confidence in the Court’s knowledge of the case and understanding of Zellner’s motions and claims

The Court of Appeals’ denial of Steven Avery’s request for an evidentiary hearing is full of errors and omissions that strongly undermines confidence in the Court’s knowledge of the case and understanding of Zellner’s filings and claims.

In this post I will list out 10 errors or issues in the Decision and Order authored by the Wisconsin Court of Appeal, District II, denying Steven Avery his right to an evidentiary hearing. Yes, there are far more than 10 errors in the denial, but I had to start somewhere. The remainder of the post will expand on 3 specific errors that share a commonality – each of the 3 errors examined reveals the Court either missed or ignored important information included by Zellner in her filings.

Before we begin let’s get some fluff out of the way…

• Was I surprised by this decision and order? Yes. I didn’t expect an outright denial of nearly every single issue. This definitely qualifies as an unfortunate set back.
• Yes the Court’s decision and order is full of errors. Will that matter when / if Zellner files a Motion for Reconsideration? Likely not. Either way I don’t view it as a waste of time to identify and explain the many errors or issues with the denial.
• Should anyone give up? No. Even if Zellner had won her appeal, we would have been in for a long wait (and another appeal by the state). Also, it’s worth noting this same Court (in 1996) ruled against and denied relief to an innocent wrongfully imprisoned Steven Avery. I believe the same thing has happened again, with the same Court and the same defendant no less (and hopefully the same eventual outcome).

Identifying 10 errors or issues with the Court of Appeals’ decision and order

It is now abundantly clear that TTM and twitter users are more familiar with the facts of this case than the judges from the Court of Appeals. Unfortunately, I’m not joking. Let’s put it this way – if a new user posted on TTM implying Avery could have burnt Teresa’s body in his burn barrel based on the fact bone fragments were found in said barrel, I have no doubt many, many users would correctly point out bones were not found in Steven’s barrel, but were found in the Dassey barrel.

In their recent denial the Court of Appeals incorrectly claimed bones were found in Steven’s burn barrel … meaning the Court was not appropriately familiar with the location of bone evidence while deciding an appeal for a murder case. Go fucking figure. So, if you knew that bone fragments were found in the Dassey burn barrel and not Steven’s burn barrel – Congratulations! You are officially more knowledgeable about the facts of this case than any judge from the Wisconsin Court of Appeals.10 Errors or Issues

1. The Court mispelled Teresa’s name as “Theresa.” Of course I’m assuming this is an innocent mistake, but still, it just looks bad, especially when Zellner spelled her name correctly. (PG. 2)
2. The Court incorrectly claimed bones were found in Steven’s burn barrel, when in reality bones were found in the Dassey burn barrel. Luckily, the Court is now on record suggesting the presence of bones in a barrel supports the theory that said barrel might have been used for the cremation. (PG. 21)
3. The Court incorrectly claimed the state never said the bullet (Item FL) went through Teresa’s skull. This is plainly false. State witness ME Jentzen (in response to questions specifically about FL striking bone) testified that FL had passed through Teresa’s brain. Has the Court not reviewed the trial transcripts? (PG. 26)
4. The Court incorrectly said Zellner failed to address in her motion why Strang and Buting’s strategy for explaining Steven’s blood in the RAV was constitutionally deficient. In reality a detailed argument was made, but was totally ignored by the Court. (PG. 17)
5. The Court incorrectly said Zellner’s argument about the swapping of swabs was not supported by any facts of record. In reality there are many facts of record that support Zellner’s argument, but again, they were totally ignored by the Court. (PG. 21)
6. Mysteriously, the Court offered an opinion about the content of a missing voicemail that no defense counsel or judge has ever heard, while also ignoring a recorded phone call between police officers that directly contradicts the Court’s opinion about the content of the voicemail / order of Teresa’s appointments. (PG. 23)
7. The Court incorrectly said Zellner never notified the circuit court judge of her intent to supplement her initial 974.06 motion. In reality Zellner very clearly said (in the motion itself) that supplements were forthcoming due to additional testing. Both the circuit court and the Court of Appeals have not thoroughly read Zellner’s filings, resulting in both courts offering the same erroneous opinion, essentially compounding their errors. (PG. 29)
8. The Court failed to properly analyze Zellner’s Brady claim re: the late and deceptive disclosure of the “Brendan Dassey computer” forensic image, totally avoiding the argument that the state was acting deceptively by identifying the forensic image as a copy of Brendan Dassey’s computer (when evidence revealed Bobby was the primary user). The Court also grossly misinterpreted Zellner’s argument supporting her identification of Bobby as the source of the disturbing computer contents. Apparently the Court was utterly incapable of comparing the timing of image searches to Bobby’s trial testimony about when he was home alone. (PG. 40 – 41)
9. The Court incorrectly concluded Zellner failed to demonstrate bad faith on the state’s part regarding the destruction of biological evidence in 2011. In reality there’s nothing but evidence of bad faith. The Court also dismissed Zellner’s argument that Fallon misled her in 2017 – 2018 regarding whether or not the state still had the bone fragments. All those lies Fallon told Zellner about still having the bones in custody when he himself knew they were gone? The Court only brought it up to say it didn’t matter. (PG. 45)
10. The Court incorrectly said Eisenberg testified at trial that none of the quarry bones were human. It seems the Court is suggesting Eisenberg, after submitting her FINAL report (which listed the quarry bones as human) conducted an additional undisclosed examination during which she did a hard 180 on the origin of the bone evidence, and then failed to report or disclose her updated findings prior to trial. In reality no such additional examination occurred and the opinions listed in Eisenberg’s final report (that the quarry bones were human) was NOT contradicted by her testimony at trial. This misinterpretation of Eisenberg’s testimony resulted in the Court (without question or concern) accepting the state’s argument that they may have released non human bones to Teresa’s family for burial or cremation. (PG. 44)

After much consideration I feel confident identifying this opinion as a steaming pile of horse shit. Although I don’t know if it will help, I certainly hope Zellner files a motion for reconsideration if for no other reason than to get on record about all of these embarrassing errors of fact and law, as well as the many examples of the Court flat out ignoring the relevant aspects of Zellner’s arguments.

Zellner’s 974.06 motions contain the exact information / arguments the Court says was not included. The Court repeatedly failed to properly analyze Zellner’s claims leading to them improperly denying Avery an evidentiary hearing.

It’s important to note the Court of Appeals first and foremost frames their decision and order as an examination of whether Zellner’s 974.06 motions warranted a hearing based on the Allen test (used to determine whether any alleged facts are material and sufficient).

The Court correctly notes a hearing must be granted if the motion alleges sufficient material allegations that, if true, would warrant relief. Zellner stated many such sufficient material allegations that, if true, would warrant relief (ex: hood latch DNA was planted / blood was planted in the RAV / Teresa left the Avery property alive). To avoid making conclusory statements, any claim or allegation must be supported by some matter of record, which can be anything from an expert or civilian affidavit to trial testimony to police reports or audio files. All of Zellner’s claims were supported by facts of record (this wasn’t her first rodeo).

Next up are the procedural bars to which the Allen test also applies. IMO Zellner absolutely offered valid arguments regarding (1) the ineffectiveness of Steven’s trial counsel, (2) the ineffectiveness of Steven’s prior post conviction counsel, and (3) a sufficient reason why Steven himself could not raise these claims in his 2013 pro se, self authored motion.

The Court determined Zellner overcame procedural bar #3 (for certain claims) but said she failed to overcome procedural bar #1 & 2 (wrong, but whatever). The most troubling part of the denial is that even after giving Avery “the benefit of the doubt” and setting all procedural issues aside, the Court somehow determined Zellner did not present any sufficient material allegations that warranted a hearing. Not a single one. I call bullshit.

Let’s review a prime example of the Court’s failure to properly analyze Zellner’s post conviction claims.

Blood Spatter: Demonstrating Deficient Performance

Although the Court was dismissive of Zellner’s experts, they did actually concede her blood spatter expert offered opinions that “certainly support Avery’s general theory” and would likely have been “helpful evidence” to Steven at trial, but determined such “measured support” wouldn’t have resulted in an acquittal because even if true, the expert’s opinion wouldn’t overcome the cumulative impact of the state’s evidence at trial (PG. 18). In an example of supreme irony, not once did the Court asses the cumulative impact Zellner’s claims would’ve had on the jury (as is required by Alvarez v. Boyd & State v. Thiel).

The Court also, while discussing claims concerning ineffective assistance counsel, incorrectly said Zellner failed to address why Avery’s trial counsel’s strategy for explaining Avery’s blood in the RAV was constitutionally deficient (Pg. 17, footnote 9):

Avery fails to demonstrate how the defense strategies that trial counsel did pursue rendered counsel’s performance constitutionally deficient. As an example, he points to trial counsel’s failure to obtain a blood spatter expert but does not address why counsel’s chosen strategy for explaining the presence of his blood in the RAV represented deficient performance.

This is 100% false. Zellner did address this issue, but the Court seems to have missed or ignored it. Before I explain myself, here is a very brief review of trial defense counsel’s “chosen strategy”:

• Strang and Buting argued Steven’s blood was planted in the RAV by Lt. Lenk on Nov 5 who obtained Steven’s blood from the 1996 blood vial. This argument was fatally damaged when the state presented FBI testimony about a lack of EDTA in the blood samples, suggesting said blood did not come from the vial.

Now … Despite what the Court said, Zellner very clearly explained in her motion why Strang and Buting’s chosen strategy constituted deficient performance. Here is a summary of Zellner’s detailed argument:

3. Zellner first points to the defense failure to retain a blood spatter expert who would have told them to abandon their trial strategy about the source of the planted blood because there was no evidence the blood vial was tampered with and the presence of blood flakes in the RAV rules out the vial as a source – “Mr. James opines that the most likely source of Mr. Avery’s planted blood was the blood deposited by Mr. Avery in his sink […] and not from the 1996 blood vial” (Pg. 71). The court only addressed this portion of Zellner’s argument to say it was speculative to assume an expert hired by trial counsel would have reached the same conclusion as her current expert, but such an opinion misses the mark by miles.

2. Many cases (Woolley v. Rednour; Harrington v. Richier; Stevens v. Mcbride; Steidl v. Walls; State v. Zimmerman; and Thomas v. Clements) were cited by Zellner to support her position that the failure to consult expert witnesses was enough to demonstrate deficient performance; HOWEVER, this standard only applies to cases where the state presented their own expert testimony (like the state did in Avery’s case). Most if not all attorneys should know they don’t have the wherewithal to adequately refute expert testimony on their own during cross examination – “There are times when the only adequate means of challenging expert testimony elicited by the State is to introduce contrary expert testimony in favor of the defense” – Woolley v. Rednour (Pg. 61). Thus, the issue here is the failure of Strang and Buting to consult experts when they knew the state was going to call their own. That’s it. Such a failure does NOT depend on what any expert would have opined had they been consulted. However, as Zellner explained in her motion, expert opinions can and should be used to bolster or support a post conviction claim that, had experts been consulted and called at trial, their testimony would have been useful in overcoming the cumulative impact of the state’s evidence (State v. Scheidell).

2. Next, and perhaps most importantly, Zellner highlighted the “Failure of trial defense counsel to investigate Mr. Avery’s claim that his blood was removed from his bathroom sink and planted in the RAV4” (Pg. 65). This is an incredibly strong argument for demonstrating deficient performance as it involves counsel literally ignoring what Steven told them about the evidence. And here’s the kicker – if Strang and Buting had listened to Steven (and investigated his claim) they could have fashioned an argument to explain the blood in the RAV that wouldn’t have been impacted by the FBI’s EDTA test results. That would have been huge! As such the failure to investigate Avery’s claim (about his blood in the sink) absolutely constitutes deficient performance. This crucial aspect of Zellner’s argument was totally ignored by the Court.

1. Finally, Zellner argued it was ineffective of trial counsel to suggest Lenk was the individual who planted the blood because there was “no evidence that Lenk ever even knew about the 1996 blood vial” and thus such a strategy was “totally lacking in credibility because there was no corroborative evidence to support it” (Pg. 74). Zellner also argued Strang and Buting misrepresented facts (about evidence transmital forms and the broken seal on the blood’s packaging) to support their faulty argument (Pg. 73). Once again, the Court totally avoided this crucial aspect of Zellner’s (rather shrewd) argument, possibly because the Court realized they couldn’t refute this argument without suggesting it was reasonable to believe Lenk may have planted the blood. Best to just ignore it.

So instead of addressing and weighing these arguments relating to the deficiency of trial counsel, the Court incorrectly said Zellner failed to make the arguments. Jesus Murphy. Beyond misspellings of names and errors of fact, shit like this ^ really gets under my skin. I’m sure Zellner was beyond frustrated to learn she included in her motion the exact information the Court says was missing from the filing.

The Court of Appeals improperly dismissed Zellner’s allegation that Investigator Wiegert planted DNA evidence via swab swapping to secure a murder conviction. This claim, among many others, was supported by facts of record and warranted a hearing.

While there are numerous issues with the Court’s opinion on the hood latch sweat DNA, I was most struck by the Court’s cursory dismissal of Zellner’s argument that Investigator Wiegert swapped swabs in order to fabricate DNA evidence (misconduct Zellner says was motivated by a desire to offer some corroboration for the confession Wiegert coerced out of Brendan Dassey).

While discussing the hood latch DNA and swab swapping theory, the Court said (Pg. 21):

There is no showing of why Avery, under noncontrolled conditions, could not have deposited more sweat than the volunteers, much less any showing that the DNA was therefore planted. Without such context, this evidence is not exculpatory or even particularly relevant, and Avery’s attempt to link it to the alleged reassignment of his groin swab is wholly unsupported by any facts of record.

Setting aside the oversight regarding a lack of “context” with the DNA findings (wrong) I was surprised by how swiftly the Court dismissed Zellner’s theory about swab swapping (to account for the high amount of DNA on the swap) as “wholly unsupported by any facts of record.” There are actually quite a few facts of record that support Zellner’s position regarding Wiegert’s reassignement of the groin swab as the hood latch swap.

3. In his first affidavit (Exhibit 4) Steven Avery revealed after the groin swab was (illegally) taken from him, Wiegert pretended to dispose of the swab in the garbage. However, Steven did not see the swab leave Wiegert’s hand and fall into the waste basket (Pg. 86). As this information was included in an affidavit, it qualifies as a fact of record that supports the first part of Zellner’s argument (Wiegert retained the illegally taken groin swab instead of disposing of it).

4. Most significantly, Zellner revealed there is a broken chain of custody for the hood latch swab due to Wiegert’s fabrication of evidence transmittal documents. Zellner argues after swabbing the hood latch it was Officer Hawkins who signed the swab over to Inv. Wiegert, and then Wiegert, instead of signing his own name at the crime lab, printed Hawkins’ name on two different evidence transmittal forms “in direct violation of all established chain of custody standards and protocols” (Pg. 88). This fabricated / broken chain of custody supports Zellner’s argument that Wiegert swapped out the hood latch swab for the illegally taken groin swab he already had in his possession.

1. As noted above, the unusually high amount of DNA on the swab also supports the reassignment theory, and due to the DNA quantification being included in an affidavit, qualifies as a fact of record. Although the high amount of DNA was discussed and dismissed by the Court, they never considered the information as a fact of record that supports Zellner’s swab swapping theory, even though it was specifically mentioned by Zellner (Pg. 90)
2. In addition to her DNA expert’s averments, Zellner’s trace expert (Palenik) was prepared to, based on his microscopic examination of the swab, testify that “the swab was not used to swab a hood latch” (Pg. 170). Again, this averment was included in an affidavit and qualifies as a fact of record that supports Zellner’s swab reassignment theory. The “hood latch” swab showed no signs of having swabbed the hood latch because it never did. Instead, the “hood latch swab” was (illegally) used to swab Avery’s groin area.

This is a pattern with the Court’s denial. They claim Zellner failed to make an argument or showing of something that actually was included in her motions. Over and fucking over. First they incorrectly said Zellner failed to demonstrate deficient performance of trial counsel, and here they incorrecty said no facts of record support the swab reassignment theory.

Let’s see … witness statements, a broken / fabricated chain of custody, and multiple expert affidavits based on new forensic testing of the swab in question all support Zellner’s theory that the illegally taken groin swab was retained by Wiegert and swapped out or substituted for the hood latch swab provided to Wiegert by Hawkins. I don’t know what the fuck else Zellner could have done at the briefing stage to warrant a hearing on this issue.

Remember, a hearing must be ordered if you present claims that, if later proven true, would warrant relief. Surely alleging an officer planted DNA evidence via swab swapping is a sufficient material allegation that should have warranted a hearing, because if Zellner could present “clear and convincing evidence” at a hearing that swab swapping occurred, then some form of relief would be granted. A conviction cannot stand upon planted or fabricated evidence. Zellner’s argument regarding swab swapping was meritorious, supported by facts of record, and warranted a hearing. The claim was therefore inappropriately dismissed by the Court.

Without doubt Hawkins and Wiegert should have been called to testify about this issue. If Hawkins confirmed (1) he signed over the swab to Wiegert and (2) he himself never submitted the swab to the lab, then that would absolutely be clear and convincing evidence that Wiegert fabricated a chain of custody, which (when considered alongside other facts of record) strongly suggests DNA evidence was fabricated. There is not one single legitimate excuse that would account for Wiegert printing Hawkins’ name on multiple evidence transmittal forms rather than signing his own name as protocol dictates.

The Court says the content of the missing Zipperer voicemail is consistent with the state’s theory that Steven Avery, not the Zipperer residence, was Teresa’s last stop.

While I believe the Court was wrong to dismiss Zellner’ Brady claims about the Velie CD and forensic image, I actually understand the Court’s reservations about Zellner’s first round of Brady arguments. Nevertheless, after setting aside the procedural issues, the Court’s examination of the Brady arguments left me shaking my head and questioning their deductive reasoning skills. Most notably, when discussing the Zipperer voicemail the Court somehow very quickly made up their mind regarding the content of the missing voicemail that no defense counsel or judge has ever heard (PG. 23):

[Mrs. Zipperer] testified that, after Halbach left the voicemail on the client’s answering machine, she found the clients house, took photographs, and left within fifteen minutes. Then, approximately twenty to thirty minutes after Halbach left the voicemail (as established through her phone records), other witness testimony placed her as driving to, and then on, Avery’s property. The voicemail is therefore consistent with the evidence, which is that Halbach left a voicemail, visited a client, and then visited Avery’s property. There is no basis for Avery’s assumption that the content of the voicemail would have refuted the State’s theory about when or how Halbach was killed.

It appears the Court has decided the missing Zipperer voicemail is consistent with the state’s theory concerning the order of Teresa’s appointments, while totally ignoring the evidence Zellner presented suggesting the voicemail is inconsistent with the state’s theory concerning the order of appointments.

The Court relying on Mrs. Zipperer to support their opinion about the missing voicemail says it all. Mrs. Zipperer was an asbolutely terrible witness who had to be spoon fed information by Kratz during the trial. She didn’t even write her own written statement. The police wrote it for her after which she just signed it! And then at trial her testimony conflicted with the statement law enforcement wrote for her (likely because the written statement wasn’t true). For example, at trial Mrs. Zipperer first said Teresa showed up to her house around 3:00 p.m. (which supports Zellner’s theory re: the order of appointments) but she later corrected herself after Kratz had her read the statement police wrote up for her.

1. If the Court is correct that Teresa found the Zipperer residence soon after leaving the 2:12 p.m. voicemail (let’s say 3 minutes later, at 2:15 p.m.) and they are also correct that Teresa left the Zipperer residence “within 15 minutes” (let’s say it was 12 minutes, bringing us to 2:27 p.m.) then according to the Court’s logic, Teresa would have to travel at an incredibly high and unsafe speed (while on the phone with DP) in order to reach the ASY property in time to account for Bobby’s observation of Teresa’s arrival at or around 2:30 p.m. The timeline is flawed, and Zellner knows it.
2. To resolve this timeline issue Zellner argued Teresa left the 2:12 p.m. voicemail (saying she couldn’t locate the Zipperer address) and then proceeded to her appointment with Steven Avery (because she knew where the property was) after which she back tracked and eventually found the Zipperer residence (Pg. 138). The Court never considered this possibility. If Avery was Teresa’s second appointment of the day (around 2:30 p.m.) and she left ASY alive and went to the Zipperer’s house for her third appointment (around 3:00 p.m.) then the state’s theory would fall apart.
3. The Court says there is “no basis” for Zellner’s claim that the content of the voicemail would have contradicted the state’s theory about the order of Teresa’s appointments. It seems the Court missed or totally ignored the recorded phone call between Wiegert and Remiker that quite literally directly contradicts the state’s theory concerning the order of appointments. In the November 2005 recorded phone call Wiegert can be heard saying that Teresa’s SECOND appointment was with Steven Avery, and her THIRD appointment was with the Zipperers (Pg. 149). Notably, this phone call took place after officers listened to the Zipperer voicemail, but before Teresa’s RAV was found on Avery property. As such, Zellner argued Wiegert’s conclusion regarding the order of appointments was based on his review of the Zipperer voicemail, which was in police custody before suddenly disappearing from evidence (Pg. 148). To this day the voicemail remains missing.

Did the voicemail vanish from evidence because it demonstrated Teresa went to the ASY at 2:30 p.m. before she went to the Zipperer residence? Was Mrs. Zipperer was correct when she said Teresa arrived at her house around 3:00 p.m.? Is this why Wiegert told Remiker Steven was appointment #2 and the Zipperers were appointment #3?

And of course yet again the Court totally failed to address an important aspect of Zellner’s argument – the recorded phone conversation between Weigert and Remiker wherein Wiegert claimed Steven was NOT Teresa’s final stop. How did that not catch the Court’s attention? IMO a hearing should have been ordered on this issue during which Wiegert, Remiker and others would have been called to testify about (1) the content of the Zipperer voicemail, (2) when and how the voicemail went missing from evidence, and (3) what lead to Wiegert’s conclusion that the Zipperer residence was Teresa’s last stop.

Closing Thoughts…

“Sure, but what if…”

The Court of Appeals did nothing but sanction or compound errors made by the circuit court, and their attempt to refute Zellner’s arguments with “what if…” style rebutalls (rather than accepting her claims as true for the purpose of determining the sufficiency of the motion) was not exactly persuasive. As an example, Zellner’s expert claimed the body wasn’t burnt in Avery’s burn pit, but in a burn barrel or similar enclosure. In response the Court basically said, “What if it was Avery who burnt the body in a burn barrel? After all, bones were found in his barrel!” (Pg. 21).

Again, bones weren’t found in Avery’s burn barrel, but it’s nice to know the Court considers the presence of bones in a burn barrel as supportive of the argument that said barrel was used to burn the body. That means the Court will understand the significance of bones being found in the Dassey burn barrel … right? Second, if Avery burnt the body in his barrel, why would he then dump the bones in his own burn pit and take off to Crivitz when he knew he was being looked at as a suspect? Such arguments are not very persuasive and IMO reveals the Court’s highly questionable critical thinking skills.

Sanctioning Deceptive Conduct

How can the Court claim there’s no evidence of bad faith given all the lies, misrepresentations and dubious arguments regarding the bones? IMO any state agent who claims it’s possible they released animal bones to the Halbach family for Teresa’s burial or cremation CANNOT have been acting in good faith (looking at you Fallon).

The Court of Appeals claims (based on IDK what) the only reason the state released any bones was because the Halbach family asked for them, “likely for closure,” the Court theorized. Problem is, the Court also said: “the fact that the state released the bones [to the Halbach family] does not mean they are Halbach’s” (Pg. 45). Jesus. Then whose bones are they? Amazing. According to the Wisconsin Court of Appeals, the Halbachs specifically asked for Teresa’s remains for closure, yet they recieved unidentified remains. So much for the Halbach’s closure! IF it’s true the Halbach family asked for the remains I’m pretty sure they were asking for Teresa’s remains specifically, not a bunch of unidentified possibly non human bones. Surely it’s not a common or acceptable practice to release unidentified possibly non human bone evidence to grieving families.

IMO Avery’s 2003 exoneration casts a dark shadow over the state’s 2011 release of bone evidence. Why? If there is even a small chance the bones released to the Halbach family belonged to Teresa, then Avery has been unjustly denied the chance to (once again) achieve an exoneration due to testing of biological evidence that resulted from the commission of the crime for which he has been falsely imprisoned. Last time the state kept unidentified hair evidence for 17 years after Steven’s (1985) conviction. This time around, however, the state didn’t want history to repeat itself, so they disposed of unidentified bone evidence less than 5 years after Steven’s (2007) conviction. They knew what they were doing, and they knew it was wrong of them to do it, which is why they immediately started covering up their actions via withholding of reports and deception of counsel and courts.

Harmful Omissions

Although there are multiple omissions in the decision and order, I was troubled by one in particular. The Court of Appeals didn’t once mention or address the issue of the state’s second 2017 forensic examination of the Dassey computer. This is an examination which Zellner says uncovered material information about Teresa’s murder, and she wants access to it.

Just to be clear, the state has provided Zellner with the results of their first 2006 examination (Velie CD) but have yet to provide her with any results from their second 2017 forensic examination, possibly because the second forensic examination revealed the existence of folders on the Dassey computer titled “Teresa, Halbach and DNA.” How on God’s green earth can the Court totally avoid mentioning this issue? How can anyone reasonably deny Zellner access to files kept in folders literally titled with the victim’s name? If Zellner had a right to view the results from the 2006 examination I don’t see why she wouldn’t also have the right to view the results from the second 2017 examination. The amount of deception and obstruction the state has gotten away with at this point is outrageous. What is in those folders? Will we ever know? Zellner should have been given this information immediately by the state. Their refusal to hand it over is an example of blatant obstruction and the Court’s avoidance of this issue is just as troubling.

All Failures are Training Grounds

There are some silver linings to address. The Court actually allowed Zellner to (for certain claims) overcome the procedual bar imposed by Avery’s 2013 pro se (self authored) 974.06 motion. This means Zellner can make the same argument with any subsequent 974.06 motion and overcome the same procedural bar. Further, the Court identified a number of issues that Zellner could raise in a new 974.06 motion. However … moving forward Zellner will have to overcome a new procedural bar and explain why any new claims were not raised in her June 2017 974.06 motion. This won’t be a problem for some claims, but will be for others.

I suppose I appreciate suggestions about how to navigate such a motion, which if nothing else makes it slightly easier for Zellner, but I personally still have doubts that any subsequent 974.06 petition would succeed at this point. As they have done here, the Court could simply dismiss any new claim / motion from Zellner as not viable because it doesn’t overcome the cumulative impact of the state’s evidence. Thus IMO Zellner needs access to the RAV and other items for additional testing. Of course even though Zellner is willing to pay for any such tests, I have a funny feeling the current Wisconsin Attorney General (AG Kaul) isn’t about to #workwithKZ, so she would need to make such motions for testing through the Court, which would add another couple years to our wait time if the state decided to fight the motion. No matter what happens we can be sure of one thing: there will be lots of waiting.

In Conclusion…

The overarching issue isn’t that Zellner’s motions were insufficient, the issue is that the Court’s examination / analysis of the motions have been deeply flawed (both factually and legally) leading to yet another manifestly erroneous decision and order from the not so honorable Wisconsin judiciary. If this Court can’t spell the victim’s name properly, doesn’t know where bone evidence was found in a murder case, and didn’t take care in reviewing trial documents or post conviction motions and exhibits, why the hell should anyone take them seriously?

Any judge who helped author this POS error laden denial should be embarrassed and ashamed. All they did was expose their own incompetence by demonstrating social media users are far more knowledgable about the facts of the case than any judges from Court of Appeals. That’s a big part of why, at least IMO, it’s hard to view the denial as anything other than a hack job from a bunch of hack judges who apparently can’t be bothered to research the cases they are ruling on. I don’t think it’s inappropriate to suggest judges serving on an appeals court should be more familiar with the facts of the case than random citizens who follow the case in their free time.

Again, Zellner’s motions were not factually insufficient, and they absolutely did warrant a hearing. If Avery’s 2009 motion warranted a hearing on only the Denny and Juror issue, then Zellner’s 2017 motion (and supplements) warranted a hearing many times over. If the Court followed their own established case law Steven would have won his appeal. Instead, the Court is using their incompetence or willful ignorance (take your pick) as a shield to protect the state from facing Zellner’s controlled rage at a hearing. It really is as simple as that IMO. They don’t want the truth to come out, and the highest courts agree cross examination of witnesses is “an attorney’s most effective vehicle for discovering truth.” So of course letting Zellner cross examine state witnesses at a hearing would have been counter productive to the state and its goal of burying the truth at every turn or cul-de-sac by any means neccessary.

Luckily, as Steven Avery said in the closing shot of MAM1, the truth always comes out, and whether Wisconsin likes it or not, some disturbing truths will eventually come out in this case.

Never give up. Never surrender.

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