Avery attorney files motion for judge to vacate order denying new trial

MANITOWOC COUNTY, Wis. (WBAY) - Steven Avery's attorney has filed a motion in response to a judge's decision denying Avery a new trial in the murder of Teresa Halbach.

Kathleen Zellner tweeted to Avery supporters Friday that "help is on the way" in form of a motion to vacate the judge's order.

On Oct. 3, Sheboygan County Circuit Court Judge Angela Sutkiewicz issued an order that says "the defendant has failed to establish any grounds that would trigger the right to a new trial in the interests of justice. As such, no further consideration will be given to this issue."

However, Zellner's motion states that the defense has more evidence to test, and prosecutors had agreed to let that happen.

Click here to read Zellner's motion.

Zellner states that experts planned to take swabs from Teresa Halbach's RAV-4 and conduct a complete examination of the vehicle for forensic evidence.

Zellner states that examination was supposed to happen before "weather worsened."

Zellner's team also planned to test license plates and a lug wrench.

Prosecutors also agreed that doctors would be able to complete a microscopic examination of pelvic bones.

"Defendant did not anticipate the court filing its order prior to the time Defendant could notify the court of the matters set forth herein," reads Zellner's motion.

Zellner says she showed prosecutors her motion and they agreed that it was factual. However, they would not join the motion.

The motion says the defense and prosecutors agreed to "streamline the litigation." The defense agreed to remove from its complaint allegations of ethical violations by trial prosecutor Ken Kratz, and remove references to brain fingerprinting.

Avery and his nephew, Brendan Dassey, were each convicted of 1st Degree Intentional Homicide during separate jury trials in 2007. Prosecutors said the duo raped and murdered freelance photographer Halbach on the Avery property in Manitowoc County on Halloween of 2005. The case became one of the most high-profile murders in Wisconsin history after Netflix released the docu-series "Making A Murderer."

Avery claims that investigators planted evidence to wrongfully convict him of the murder. Avery has long argued that he was set up for filing a $36 million wrongful conviction lawsuit against Manitowoc County.

Avery had served 18 years in prison for a 1985 rape he did not commit. He was exonerated and released from prison in 2003. Avery was arrested and charged with Halbach's murder before a decision was made in the civil lawsuit.

In June, Zellner filed a 1,272-page motion for Avery's post conviction relief.

Judge Sutkiewicz, in her decision and order, responded to Zellner's claims regarding the DNA testing.

Claim #1:

A microscopic examination of the hood latch on Halbach's RAV 4 shows Avery's DNA did not get there by touching, meaning he didn't open the hood of the car.

Judge Sutkiewicz:

"This defendant's argument leaves out several significant facts. The author of the report concedes that there is no forensic test available that can conclusively determine whether DNA was left by sweat. As such, the report cannot conclusively state that the DNA on the hood latch could not have been left by the sweat of the defendant's hand.

Furthermore, while 11 of the test subjects did not leave detectable DNA on the hood latch, the fact remains that 4 of the test subjects did leave detectable DNA by touch. The report does not give any quantifiable statistics as to the amount of DNA left in his tests or comparable data to the test performed on the hood latch in question and entered into evidence at trial.

Contrary to the defendant's assertions, the test of the DNA on the hood latch does not rule out the defendant's hand as the source of the DNA."

Claim #2:

Avery's DNA found on Halbach's car key included too many cells to be transferred by simply holding the key, and could have been planted using something like Avery's toothbrush.

Judge Sutkiewicz:

"There is no question that the DNA found on the key was the defendant's. Even if the key found in the defendant's residence was the victim's subkey, and that the amount of debris found on the key is not consistent with the key being used on a regular basis, that does not establish that the key was planted."

Claim #3

Zellner says tests show a bullet fragment found in Avery's garage was not shot through Halbach's head. The claim states that it is red paint, not blood on the bullet, thus it was likely planted to wrongfully convict Avery.

Judge Sutkiewicz:

"The expert witness indicates that the tests used on the bullet are not inclusive to the point of discovering all particles present on the bullet surface. In order to completely rule anything out, the expert indicates that more detailed analysis would be necessary. Furthermore, the report indicates that the test performed cannot determine what the red substance on the bullet is. Again, the expert indicates that further testing would be needed to rule blood in or out as the source of the stain. The expert also states that he would want to supplement his report after further test results were available. The reports do not support the defendant's position."

Judge Sutkiewicz concludes:

"All three items of evidence were admitted at trial. Each was thoroughly contested by defense counsel. The reports submitted by the defendant are equivocal in their conclusions and do not establish an alternate interpretation of the evidence. Given the totality of evidence submitted at trial and the ambiguous conclusions as stated in the experts' reports, it cannot be said that a reasonable probability exists that a different result would be reached at a new trial based on these reports. As such, the defendant has not met his burden in order to obtain a new trial."

Wisconsin Attorney General Brad Schimel praised the judge's decision and order.

"I am pleased with the judge's decision which brings us one step closer to providing justice to Teresa Halbach's family. DOJ will continue to vigorously defend Avery's conviction, which was handed down by a jury of his peers," Schimel says.


A federal judge has overturned Brendan Dassey's conviction, but he remains behind bars. The Wisconsin Department of Justice has appealed the judge's decision up to the U.S. Seventh Circuit Court of Appeals in Chicago.

In September, seven of eight judges on the panel heard arguments from Dassey's attorney and an attorney representing the DOJ. The judges have not released a decision. A simple majority will rule.

There is the potential for the case to go before the U.S. Supreme Court.

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