MANITOWOC COUNTY, Wis. (WBAY) - The State of Wisconsin is asking a judge to deny Steven Avery's request to present evidence from a recent examination of a computer taken into evidence during the investigation into the 2005 murder of Teresa Halbach.
Avery's defense argues evidence from the computer could have changed the outcome of Avery's trial.
Avery is appealing his 2007 conviction for 1st Degree Intentional Homicide. The trial was the subject of Netflix docu-series "Making A Murderer."
Attorney Kathleen Zellner's motion to compel asks a judge to approve an in camera inspection of a second forensic analysis of the computer completed over an eight-month period in 2017-2018. The defense then wants an evidentiary hearing on the findings.
The computer in question was in the home of Brendan Dassey, Steven Avery's nephew. Dassey was also convicted in the murder of Halbach.
Zellner says the evidence would show what was on the computer after it was returned to the Dasseys after an initial examination. Zellner says further examination would contain evidence from May 6, 2006-February 5, 2007.
The defense would like to know what was on the computer during those 280 days before trial.
"Mr. Avery has set forth a specific factual basis from the first forensic analysis of Detective [Michael] Velie, which demonstrates a reasonable likelihood that the second forensic examination contains relevant information that is necessary to a determination of guilt or innocence of Mr. Avery and is not merely cumulative of evidence that was already available to him," Zellner says.
Last month, Zellner filed a motion claiming failure to disclose a CD of evidence violated Avery's right to a fair trial. Zellner obtained the CD in April 2018.
The state said the "Velie CD", as it is known, contained only evidence that had previously been given to Avery during trial.
Zellner claims Avery's trial attorneys were misled by the prosecution about the computer investigation, and that a report omitted certain details that could be used by trial attorneys. Also, it was presented as "Brendan Dassey's computer." Zellner, however, argues that another person in the home was the primary user of the computer.
Evidence found on the computer includes thousands of images of sexual violence against young women, including torture and mutilation.
Zellner says knowledge that the computer was primarily used by another person in the Dassey household would have given Avery's defense opportunity to present a third-party suspect in Halbach's murder.
In recently filed documents obtained by Action 2 News, the state of Wisconsin says the Avery team's request concerns "evidence that did not, and could not, have existed when his case went to trial in 2007."
The state says the original forensic image of the Dassey computer has been available since December 2006. Avery's trial was in 2007.
"Defendant chose not to undertake that analysis until the summer of 2017," reads the document.
The state says Avery has not demonstrated how a new examination of the computer or reexamination of forensic work by Detective Velie would show anything that could have changed the outcome of Avery's trial.
"Since any new analysis or reexamination constitutes evidence that did not exist at the time of the Defendant's trial, it could not be consequential; i.e., it could not have changed the outcome," reads the state's response.
Sheboygan County Judge Angela Sutkiewicz is presiding over the case. Previously, Judge Sutkiewicz denied Avery's request for a new trial.
Avery's case was taken to an appeals court, However, requests to present new evidence cannot be done in front of an appeals court. That's why the case was sent back to circuit court.