MANITOWOC COUNTY, Wis. (WBAY) - Steven Avery will be allowed to introduce new evidence when he argues the state violated the law when bones were turned over to the family of murder victim Teresa Halbach.
Earlier this week, the Wisconsin Court of Appeals sent the case back to circuit court with the order that the lower court allow Avery to pursue a "supplemental postconviction motion."
"It is further ordered that the circuit court shall conduct any proceedings necessary to address the claims raised in the supplemental postconviction motion, and shall enter an order containing its findings and conclusions," reads an entry in online court records.
The order stops short of ordering an evidentiary hearing.
Avery attorney Kathleen Zellner tweeted, "SA's DREAM OF FREEDOM is a NEW REALITY as COA lets us reveal all the State's BAD FAITH, DESTRUCTION & SUPPRESSION of evidence-misdeeds cannot be undone. State's old way of doing business is OVER."
Zellner also noted that this is only the third time in Wisconsin history in which an appellant will be allowed to add new evidence during a pending post-conviction appeal. "Very rare. Very good sign for SA," Zellner tweeted.
Steven Avery is serving a life sentence for the 2005 murder of Teresa Halbach in Manitowoc County. He was convicted of 1st Degree Intentional Homicide at a 2007 jury trial.
Avery's nephew, Brendan Dassey, was also sentenced to prison for the crime. The United States Supreme Court declined to take up Dassey's claim that his confession to the crime was coerced by investigators.
Avery continues to appeal is conviction with the help of Zellner. The case is the subject of Emmy Award-winning Netflix series "Making A Murderer."
Zellner wants to test bones found in a Manitowoc County gravel pit to determine if they are Halbach's, which would undermine the prosecution's argument that Halbach was killed and her remains destroyed on Avery's property.
The state says tests on the bones were inconclusive whether they were human or animal bones. Zellner countered, arguing, "The State cannot credibly argue that it returned animal bones to the Halbach family for burial or cremation."
The State objected to the motion, arguing it was a "new and separate action" by Avery's defense delaying the appeals process. The State said Zellner should be required to wait until this appeal is resolved or drop this appeal and pursue the new claim.
The appellate judges said it's better to put the appeal on hold and deal with this issue now.
In an order dated Monday, February 25, the Court of Appeals wrote,
"Due to this case's extensive history, there is a benefit to having existing claims developed or litigated while they are relatively fresh, rather than positioning the claims to be procedurally barred in a future proceeding," the court wrote. "For these reasons, we desire a ruling on the merits so that all claims to date can be considered in a single appeal."
Zellner says a voicemail inadvertently left on her phone shows the State of Wisconsin "is trying deceive" her about the location of a pelvic bone found in a gravel pit in Manitowoc County.
Zellner sent a letter to the Wisconsin Court of Appeals and published it on her website on Feb. 13. The letter states that on Feb. 8, Zellner received a packet of never-before disclosed ledger sheets that listed among the evidence a human pelvic bone. Zellner says a previous police report she received noted that human bones were separated from non-human bones and transferred to a funeral home for the Halbach family.
Zellner says she emailed Assistant District Attorney Tom Fallon and asked him to call her immediately "to confirm whether or not the State was in possession of the human pelvic bone."
Prosecuting attorney Mark Williams, intending to call Fallon, accidentally called Zellner and left this voicemail, Zellner says:
"Hi, Tom. This is Mark Williams. Um, I'll send you an email later today, but I don't think we should do anything or respond to her [Zellner] at all until tomorrow, uh, when we look into the bag and--and see exactly the pelvic bones are in there or not. Um, so I--I would not respond, uh, until we look into the bag, uh tomorrow morning and then we can talk about it, uh, before we send a response. Thanks a lot. Bye."
Zellner says this shows that the state has misrepresented itself regarding the possession of a human pelvic bone. Zellner says the new discovery that the bone was listed as human means that "undersigned counsel does not know if prior undisclosed testing has occurred prior to the bones being returned to the Halbach family."
Action 2 News asked Wisconsin Attorney General Josh Kaul if he had comment on the bones and the voicemail. Kaul told us he could not comment on an ongoing investigation.