MAKING A MURDERER: Avery attorney reacts to judge's ruling

Steven Avery enters a court hearing in Manitowoc County in 2006 (WBAY file photo)
Steven Avery enters a court hearing in Manitowoc County in 2006 (WBAY file photo)(WBAY)
Published: Aug. 8, 2019 at 6:41 PM CDT
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A circuit court judge has denied Steven Avery's request for a new trial based on investigators' handling of bone evidence in the Teresa Halbach murder.

Judge Angela Sutkiewicz issued a ruling Wednesday that Avery failed to meet his burden to show the law for preserving evidence was violated or his constitutional rights were violated.

Defense attorney Kathleen Zellner tweeted that now this motion has been decided, Avery's case can move on to appellate courts.

"We are not surprised by this ruling. In the greater scheme of things it is not important. The appellate court has jurisdiction of the entire appeal which has numerous issues. The appellate and supreme court of Wisconsin will make the decisions that matter on these issues and establish precedent on these issues," Zellner says in a statement to Action 2 News.

Avery is serving life in prison for his 2007 conviction of 1st Degree Intentional Homicide in the murder of Halbach, a photographer called to the Avery salvage yard to take pictures of a vehicle for sale. Investigators found bone and clothing fragments in Avery's burn pit. The case is the subject of Netflix docu-series "Making A Murderer."

In this last motion, on the basis of the case of Youngblood v. Arizona,

Avery's defense argued the state failed to alert Avery about bone fragments found in the Manitowoc County Gravel Pit.

The State contends tests either showed they were animal bones or were inconclusive whether bones were animal or human. The bone evidence was eventually given to the Halbach family in 2011, but Avery's attorneys were not informed until 2018.

"In this matter, the defendant cannot show that the State knew of the potential exculpatory value of the evidence," reads Judge Sutkiewicz's ruling.

The judge cites testimony by forensic anthropologist Dr. Leslie Eisenberg who said during trial that she was not able to conclude with scientific certainty that the fragments were human.

"Nothing of record indicates that in 2011, when the material was given to the Halbach family, the material was re-classified as human bone," says Sutkiewicz.

The judge also states that the FBI confirmed that the fragments could not be tested for DNA.

"Dr. Eisenberg also testified that the material found in the Quarry was largely unburned. This does not support the defendant's argument that the victim was murdered and burned in a place other than the Avery property and placed there at a later date," reads Sutkiewicz's ruling.

Attorney General Josh Kaul responded to Avery's motion on procedural grounds, arguing Avery's defense attorneys could have raised the issue of the gravel pit bones on several occasions.

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