MAKING A MURDERER: State files response to Steven Avery's appeal

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: May. 28, 2020 at 9:01 AM CDT
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The State of Wisconsin is asking an appeals court to uphold a decision denying a new trial to Steven Avery as he appeals his conviction in the murder of Teresa Halbach.

Avery, subject of Netflix's Making A Murderer, is asking for a new trial. In 2007, a jury found Avery guilty of 1st Degree Intentional Homicide in the 2005 murder of freelance photographer Halbach. Investigators say Avery and his nephew, Brendan Dassey, killed Halbach at the Avery property in Manitowoc County.

The Netflix docu-series has raised issues with the investigation, prosecution and conviction of Avery.

On May 27, Wisconsin Assistant Attorney General Lisa Kumfer filed a 130-page response to Avery's motion for post-conviction relief in Court of Appeals District II.

to read the state's full response.

The state argues that Wisconsin Circuit Court Judge Angela Sutkiewicz properly denied Avery's June 2017 motion for an evidentiary hearing. The state also says Avery's allegations of ineffective counsel at trial and previous post-conviction appeals are "meritless."

"Though Avery raised a litany of claims in his motions, none of them entitled him to a hearing," reads the state's conclusion. "This circuit court properly exercised its discretion to deny his motions without one. The Court should affirm the circuit court."

The state says it does not believe an oral argument before the court is needed.

"This case involves only the application of well-settled law on the procedural bar and post-conviction pleading standard to the facts, which can be adequately addressed on briefs," reads the state's brief.

"Accordingly, the question on appeal is not whether Avery is guilty of killing Teresa Halbach. That question was for the jury, which many years ago answered yes, beyond a reasonable doubt," the state says. "Nor is the question on appeal whether Avery’s latest counsel can construct a different trial defense, find new ways to attack the trial evidence, or identify issues that have not been raised previously," reads the brief.

"The only question before this Court in this appeal is whether any of Avery’s motions entitled him to an evidentiary hearing. The answer to that question is no."

In October of 2019, Avery attorney Kathleen Zellner presented the court with her brief arguing 10 "complex legal issues" that she asks the Appeals court to consider.

for a breakdown of those claims.

In addition to the claims of ineffective counsel, Zellner states the circuit court "abused its discretion" in dismissing Avery's requests for additional scientific testing.

to read Zellner's full brief.

Zellner says the circuit court deprived Avery of due process when the court denied Avery's motion regarding Brady violations. Zellner says Brady violations happened when the prosecution failed to turn over all "exculpatory evidence" to the defendant.

Zellner says Avery's trial attorneys failed to call experts on blood spatter regarding testimony about Steven Avery's blood in Teresa Halbach's RAV-4 found on the Avery property. Avery has claimed that blood from a cut in his finger was taken from his sink and planted in Halbach's vehicle.

"Suspiciously, there were no bloody fingerprints of Mr. Avery in or on the RAV-4 despite the fact that he could not have been wearing gloves when he allegedly deposited blood from the cut on his finger in the RAV-4," says Zellner.

Zellner hired a DNA expert who said testing refutes the state's DNA evidence presented at trial.

Zellner and Avery have until June 11 to reply to the state's brief.


Wisconsin Governor Tony Evers has said that he will not grant a pardon or commutation to Brendan Dassey for his conviction in the 2005 murder of Teresa Halbach.

The governor's office and pardon advisory board sent a letter to Dassey, 30, and his attorneys stating:

"Unfortunately, we are unable to consider your application for pardon because you do not meet one or more of the required eligibility conditions."

The governor's office says those requirements are:

"It has not been at least five years since you completed your entire sentence for the conviction you want to be pardoned."

"You are currently required to register as a sex offender under Wis. Stat. 301.45."

The governor's office says Evers is not considering commutations at this time.

Dassey attorneys Laura Nirider and Steven Drizin say they are not giving up hope for clemency.

"Although the Pardon Advisory Board has stated that it will not consider commutations, Governor Evers is not bound by those rules. He does have the power to issue commutations under the Wisconsin Constitution and should do so when, as here, courts fail to deliver justice. Our partners around the country stand ready to work with the Governor to develop an appropriate process for the review of commutation petitions," reads a statement from attorneys Laura Nirider and Steven Drizin.

for more coverage of the Dassey clemency request.

The clemency petition reads, "Brendan Dassey was a sixteen-year-old, intellectually disabled child when he was taken from his school and subjected to a uniquely and profoundly flawed legal process. That process rightly sought justice for Teresa Halbach, but it wrongly took a confused child’s freedom in payment for her loss. Such a debt can never be justly repaid with the currency of innocence."

The United States Supreme Court declined to hear Dassey's appeal based on the argument that investigators used improper techniques while interrogating Dassey, a teenager with a low IQ. They say investigators made false promises to Dassey that he'd be released if he told them about the killing.

Dassey attorney Steven Drizin says the Dassey confession tapes show evidence of police coercion that included "tactics that can be toxic and can produce false confessions."