MANITOWOC, Wis. (WBAY) - A circuit court judge on Thursday rejected Steven Avery attorney Kathleen Zellner's arguments that prosecutors withheld information from Avery's trial attorneys -- one of Zellner's arguments to win Avery a new trial.
Avery is serving life in prison for the murder of Teresa Halbach, whose remains were found on his family's property in 2005.
At the center of Zellner's court filing in July is one computer disc that was not turned over the Avery's trial lawyers. Zellner said the CD contains thousands of files of previously undisclosed evidence from computers that were seized during the murder investigation.
Action 2 News obtained Thursday's ruling from multiple sources, including Zellner.
In it, Judge Angela Sutkiewicz sides with the State, which said the CD in question was a summary of what an investigator considered the most important information contained on seven other discs of files seized from computers during the investigation. Those seven CDs were turned over to Avery's attorneys during pretrial discovery -- "This is not disputed by either party in this matter," the judge wrote.
"While the defense did not have those specific impressions of Detective Velie prior to trial, the information that he used to create the CD in question was in possession of the defendant prior to trial," Sutkiewicz wrote in the ruling.
Zellner also argued that the prosecution misled the defense by saying there was no relevant information on the computers. The judge said the defense had all of the information available to make that determination for itself.
"[Defense attorney Dean] Strang was in possession of Special Agent Fassbender’s report revealing the work of Detective Velie, he acknowledged the detective’s review of the drives when discussing the stipulation proposals, and concluded that the information on the drive in question was irrelevant, a result of a strategic decision on the part of the defense rather than misconduct on the part of the prosecution."
Finally, Zellner argued, if the court finds the evidence was not withheld from the defense, then Avery should get a new trial because it shows his trial lawyers were ineffective.
Judge Sutkiewicz rejected this, too -- firstly, because it was outside her authority.
"It is important to note that the Court of Appeals was very specific in its order," Sutkiewicz prefaced her ruling. And she concluded it writing, "This court was ordered to review whether or not a Brady violation occurred in discovery. The Court of Appeals did not open the remand to any and all additional arguments that were not included in previous motions. As such, the court should not consider this issue."
Nevertheless, Sutkiewicz's ruling seems to chide Zellner for how she made that request.
"Even if the court were allowed to consider such a motion, the one paragraph argument submitted by the defendant is completely inadequate... The defendant cannot throw a single paragraph into a thirty-three page motion and expect the court to do his work for him."
Zellner responded in a statement to Action 2 News:
"Once again we are disappointed in the lower court’s poor grasp of the facts, misapplication of the law and dilatory tactics in missing deadlines. We look forward to experiencing the best of Wisconsin’s judiciary as we advance to a higher court. We did not develop the ineffective assistance of counsel argument because the failure to disclose the CD was a clear cut Brady violation, not ineffective assistance of counsel."
A different computer disc is at the center of another one of Zellner's arguments to free Avery. Zellner wants to present evidence from a more recent examination of a computer in the home of Avery's nephews, showing computer activity during 280 days leading up to Avery's murder trial.
Zellner says the graphic images of violence against women found on that computer could have changed the outcome of Avery's trial.