Making a Murderer: Steven Avery's attorney asks appeals court for new trial

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: Oct. 14, 2019 at 10:46 AM CDT
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Steven Avery's attorney has filed a 32,241-word brief asking the Wisconsin Appeals court to grant Avery a new trial or evidentiary hearing in the Teresa Halbach murder case.

Kathleen Zellner filed the 135-page document with Wisconsin Appeals Court District II on Monday, Oct. 14.

Avery is appealing his 2007 conviction of 1st Degree Intentional Homicide in the murder of freelance photographer Halbach. Halbach disappeared Oct. 31, 2005, after being called to the Avery Salvage Yard to photograph vehicles for a magazine. Investigators say Halbach's remains were found in a burn pit on the Avery property. The case became an international cause celebre after the release of Netflix docu-series "Making a Murderer."

Avery's nephew, Brendan Dassey, was also convicted of 1st Degree Intentional Homicide. He appealed his case up to the United States Supreme Court. The justices declined to hear arguments. Dassey's asking Wisconsin's governor to grant him clemency. (Scroll down for more on Dassey's request.)

Avery's appeal moved to Wisconsin Appeals Court after Sheboygan County Circuit Court Judge Angela Sutkiewicz denied Avery a new trial.

Zellner presents 10 "complex legal issues" that she asks the Appeals court to consider. Action 2 News has condensed the 10 issues below.

to read the issues in full in the brief.

1. Zellner states the circuit court "abused its discretion" in dismissing Avery's requests for additional scientific testing.

2. 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 lists six potential Brady violations in her brief.

3. Zellner claims the circuit court failed to address Avery's claim that he had ineffective counsel at trial. Zellner says Avery's trial attorneys failed to call experts on blood spatter regarding testimony about Steven Avery's blood in Teresa Halbach's vehicle. 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," reads the brief.

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

Zellner says Avery's trial team also failed to "impeach the State's primary witness." Zellner cites the dueling stories of Avery nephews Bryan and Bobby Dassey. Bobby testified at court that he saw Teresa Halbach walking towards Steven Avery's trailer on the day of the murder and saw her vehicle before he left the property. He said when he returned home the RAV-4 was gone.

Bryan Dassey, however, told police that Bobby saw Halbach leave the property. That would contradict trial testimony.

Zellner also says the defense team failed to establish a possible third-party suspect in Halbach's boyfriend.

4. Zellner says the circuit court made a mistake when it said it was not authorized to resolve ineffective counsel claims.

5. Zellner says the circuit court "abused its discretion" in weighing scientific evidence rather than granting an evidentiary hearing.

"The circuit court concluded that the 'defendant’s experts. . . could not reach definitive conclusions regarding items of evidence without further testing,'" Zellner states.

6. Zellner says the circuit court "erred as a matter of law in applying the wrong standard to the newly discovered evidence."

"The circuit court ruling that in order for evidence to be “new,” the testing methods used to obtain it must not have been available at the time of Mr. Avery’s prior appeals and/or postconviction motions is manifestly erroneous. That is not the standard," says Zellner.

7. Zellner says Avery "raised sufficient reason as to why these issues could not have been raised in prior motions."

"Mr. Avery, who is learning disabled, simply lacks the legal acumen and financial resources necessary to advance an even arguably meritorious claim in a postconviction motion, let alone the claims raised based on countless hours of investigation and consultation with experts," says Zellner. "As a result, Mr. Avery has sufficient reason for not including his current claim based on trial counsel’s failure to hire experts and to investigate and present evidence about the alternative suspect in his original postconviction motion."

8. Zellner says the circuit court "abused its discretion in denying Mr. Avery's motion to reconsider and his three supplements to said motion, which included new evidence developed after his original filing on June 7, 2017."

Zellner says new evidence includes the alleged Brady violations, new blood and ballistics expert reports, ineffective counsel, discussions about Bobby's testimony, and violent pornography found on a computer in the Dassey home.

Zellner also cites

Barb is the mother to the Dassey boys. The conversation appears to contradict what Bobby said at trial. Zellner also cites a Barb Tadych Facebook post which contradicts Bobby's testimony.

"None of these issues were addressed by the circuit court in its original order to dismiss Mr. Avery’s motion. Nor could they, given that all of them were based on the discovery of new evidence that was either withheld from Mr. Avery or, through no fault of his own, was not in Mr. Avery’s possession at the time he filed his prior postconviction motions," says Zellner.

9. Zellner says the circuit court "abused its discretion" in ignoring briefs submitted by the particies incident to the motion to supplement.

"Mr. Avery filed a Motion to Compel for production of the examination of the Dassey-Janda computer that was was performed over an 8-month time period in 2017–18," says Zellner. "The circuit court never ruled on Mr. Avery’s Motion to Compel."

for coverage of the motion to compel and computer findings.

Zellner's forensic expert says there were "massive image deletions" from that computer.

"Current postconviction counsel’s computer forensic expert

was unable to determine when the massive deletions occurred, leaving open the possibility that law enforcement was responsible for the deletions. Because the circuit court denied a hearing, the issue of the deletions remains unresolved," says Zellner.

10. Zellner says the circuit court was mistaken in denying Avery's supplemental motion regarding human bones in the Manitowoc County Gravel Pit.

Avery filed a motion for a new trial based on alleged violations of Arizona v. Youngblood. Zellner says violations occurred when bone fragments found in

Zellner says evidence was likely destroyed.

"Based on the foregoing, Mr. Avery set forth sufficient material facts pertaining to the destruction of apparently exculpatory or potentially exculpatory human bone fragments to warrant an evidentiary hearing. Despite the circuit court’s erroneous ruling to the contrary, Mr. Avery is entitled to such a hearing on his claims because the material facts he alleged in his supplemental motion, (i.e., who, what, when, where, why, and how) are sufficient to show that he is entitled to relief," says Zellner.


The Wisconsin Department of Justice will have until Nov. 13 to respond to Zellner's brief. Action 2 News has reached out to the DOJ for a statement.

Action 2 News will continue to provide viewers updates on this case.


Attorneys for Brendan Dassey have

The Dassey defense team has asked Evers for two forms of relief--either a pardon or a commutation. A commutation would shorten Dassey's life sentence.

Dassey was 16 at the time of the killing of Teresa Halbach. His attorneys argue investigators used improper techniques while interrogating a juvenile with a low IQ. They say investigators made false promises to Dassey that he'd be released if he told them about the killing.

Wisconsin Attorney General Josh Kaul says, "I think that the governor's office will review the petition if they set up a process that I'm sure will give thoughtful and careful consideration of all petitions that are filed, and I'm confident that the governor's office will look at the facts and make an appropriate judgment."