Making A Murderer: Judge denies Avery motion; Zellner says case now in appeals court

Published: Nov. 28, 2017 at 11:54 AM CST
Email This Link
Share on Pinterest
Share on LinkedIn

A Sheboygan County judge has denied Steven Avery's request to reconsider her order denying him a new trial in the murder of Teresa Halbach.

A memorandum and decision order was issued Nov. 28 by Circuit Court Judge Angela Sutkiewicz. Sutkiewicz, on Oct. 3, denied Avery's motion for a new trial.

Following that decision, Avery's attorney, Kathleen Zellner, asked the court to reconsider based on newly filed documents detailing new evidence, a new witness, and claims of ineffective counsel during Avery's initial murder trial.

"The court does not find that the defendant's interpretations of the facts of this case or his interpretation of legal precedent are correct and finds no basis to reverse its previous decision. Furthermore, a Motion to Reconsider is not the appropriate forum for the court to consider new arguments based on a defendant's additional arguments for a new trial," reads Judge Sutkiewicz's decision.

This does not mean case closed on Avery.

Zellner filed a Notice of Appeal on Nov. 17. Online court records show there was acknowledgment from the Court of Appeals on Nov. 27.

Zellner tweeted on Monday, "Avery trial court issues new opinion 11 days after it no longer has jurisdiction of the case which is now with the appellate court."

Zellner says the court never responded to a motion she filed on Oct. 6 to vacate Judge Sutkiewicz's decision. She says that failure to respond effectively blocked any further scientific testing of evidence.

Zellner says she has new testimony and new evidence that supports Avery getting a new trial.

However, Judge Sutkiewicz says there was no communication to the court that there would be additional evidence submitted in the case.

Avery and his nephew, Brendan Dassey, were convicted in 2007 of

killing Halbach after she visited the Avery Salvage Yard in Manitowoc

County to photograph a vehicle on Oct. 31, 2005.

The case gained an international following from the Netflix docu-series "Making A Murderer."

In November, Zellner filed documents claiming Brendan Dassey's brother, Bobby, and stepfather, Scott Tadych, gave false testimony at trial. The documents claim Bobby Dassey, considered a star witness for the defense, lied when he said he never saw Halbach's vehicle leave the Avery Salvage Yard after she took photos of a vehicle for a magazine.

Here are some of the claims made in that document.


Zellner's motion claims a new witness has come forward to claim he

saw Halbach's vehicle in the area of of State Highway 147 and the

East Twin River Bridge on Nov. 3 and Nov. 4 of 2005. This goes

against the state's theory that Halbach's vehicle never left the

Avery Salvage Yard after she took photos on Oct. 31.

The witness states that on Nov. 4, 2005, he told Manitowoc County Sheriff's Sgt. Andy Colborn about what he saw. Zellner's motion states that Colborn never documented this conversation with the witness.

The motion states that the witness, on Jan. 15 and 16, 2016, sent

text messages to Scott Tadych, Brendan Dassey's now stepfather, after recognizing Sgt. Colborn from "Making A Murderer." Tadych did not respond or report the information to the attorneys for his stepson, Brendan Dassey.


Zellner's motion claims Brendan Dassey's brother, Bobby, gave false

testimony about what he saw and the timing of his whereabouts during the time Halbach was at the Avery Salvage Yard. Zellner says this

testimony was key to the state's case against Avery.

During Steven Avery's trial, Bobby Dassey testified that he saw

Halbach's vehicle pull into the driveway at 2:30 p.m. He said that he

saw her taking photos of a van in front of his trailer, and then

walking to Steven's trailer.

Bobby stated that he had taken a three or four-minute shower and left

his trailer to go hunting. He said Halbach's vehicle was still in the

driveway and that he did not see her. He said he returned to his

trailer around 5 o'clock, but her vehicle was gone.

An older Dassey brother named Bryan told state investigators in 2005

that, Bobby had seen Halbach leave the property.


Zellner presents testimony from Avery's attorneys. Attorney Dean Strang concedes he was ineffective counsel for Avery for failing to use experts in ballistics or blood splatter.

Also in the testimony, attorney Jerome Buting says he was unaware of a computer disc with "information on websites and images" taken from a computer in Brendan Dassey's home showing a fascination with "violent images of sexual acts" and dead women's bodies.

Zellner says the computer was used when one of Avery's other nephews, Bobby Dassey, was the only person at home. She adds that Avery didn't have access to the house or the computer.

She suggests the information was buried by prosecutors in a "voluminous discovery" handed over to the defense just before the defense was filing motions for Avery's trial.

Zellner says the evidence would have bolstered Avery's argument for a Denny motion, which lets a defendant tell jurors about other potential suspects.


In Zellner's recent 113-page motion for reconsideration, she adds to her arguments that Brendan Dassey's stepfather, Scott Tadych, should have been investigated more as a possible suspect in Halbach's murder.

She says there were several reasons to be suspicious, including that Tadych made numerous inconsistent statements and he had previous complaints of violence against women, including a 1997 battery conviction.

According to Zellner, police didn't investigate an anonymous note discovered at a Green Bay post office during the search for Teresa Halbach, which said her body was burned in an "alunamon" smelter. The note included the word "skinny" misspelled. She says Tadych worked at an aluminum foundry and his nickname at work was Skinny.


Brendan Dassey's conviction has been overturned by a federal judge who ruled that Dassey's confession was coerced by investigators.

However, the State of Wisconsin has appealed that decision.

Arguments were heard in before the Seventh Circuit Court of Appeals. The panel of judges will decide if the lower court's ruling should stand.