MANITOWOC COUNTY, Wis. (WBAY) - The State of Wisconsin has responded to Steven Avery's claim that he didn't get a fair trial based on the discovery of a CD that was not presented at trial.
Avery is appealing his conviction for the 2005 murder of Teresa Halbach in Manitowoc County. The case made international headlines after the 2015 release of Netflix docuseries "Making A Murderer."
Avery and his nephew Brendan Dassey were convicted of Halbach's murder during separate trials in 2007.
Earlier this month, Avery attorney Kathleen Zellner filed a motion claiming failure to disclose the CD of evidence violated Avery's right to a fair trial. Zellner obtained the CD in April 2018.
The defense team is asking the court for an evidenciary hearing on the contents of the CD.
Zellner says the CD contains thousands of images of sexual violence against young women, including torture and mutilation.
The evidence is from a computer in Brendan Dassey's home, but Zellner tells the court it was primarily used by someone else in the home. She says that person could have been established by Avery's defense as a third-party suspect in Halbach's murder.
"Many of the images bear a striking resemblance to Ms. [Teresa] Halbach and to the nature of the crime committed against her," Zellner says.
Zellner also claims the CD wasn't included in evidence turned over to the trial defense lawyers.
The state responded July 27 by saying the evidence on what is known as the "Velie CD" was not suppressed.
"The Velie CD is not newly discovered evidence because it was in existence before trial, the Defendant was aware of its existence, and he needed only to ask for the Velie CD to procure it. His newly attributed significant to the Dassey computer does not transform the Velie CD into new evidence," reads the state's conclusion.
The state says on April 22, 2006, the Dassey computer was handed over to Grand Chute Police Detective Michael Velie for forensic examination.
Velie finished his examination that May. He gave a CD containing his report to Special Agent Thomas Fassbender. Fassbender's ensuing report disclosed the existence of the Velie CD, the state says.
The state also says the Fassbender Report states that the CD included pornography and images of "possible torture and pain."
Velie says in an affidavit that the images on the CD were obtained from seven DVDs worth of material from the Dassey computer hard drive.
He says the only information on the Velie CD that was not on these DVDs would be "administrative and procedural files, folders and techniques."
The state's response also says Special Prosecutor Ken Kratz mailed the information to Avery trial attorney Dean Strang. One of those items was the seven DVDs with the contents of the Dassey computer.
Strang and co-counsel Jerome Buting say they never received Velie CD.
The state says a "careful and thoughtful decision was made by the Defendant regarding the necessity to call Detective Velie as a witness regarding his analyses of the Dassey, Halbach, and Avery computers."
The state says there was no previously undisclosed material on the Velie CD that wasn't on the DVDs that the trial attorneys had.
"Attorneys Buting and Strang had the pornographic and violent images before trial because they had a complete forensic image of the Dassey computer on the seven DVDs," the state says.
On Aug. 1, Avery attorney Kathleen Zellner tweeted, "When the State's expert signs an affidavit w/his name misspelled it becomes crystal clear why the State wants to avoid a hearing--Sir, please spell your name for the record. Answer: I cannot."
Avery's motion will be decided by Circuit Judge Angela Sutkiewicz who previously denied Avery a new trial.
Zellner has appealed to the next highest court, but was unable to introduce new evidence in the appeals court. That's why the case is back in front of the circuit court.
Zellner has asked for a judicial substitution.
Brendan Dassey's case went to the United States Supreme Court. The justices denied his request for a hearing based on allegations of a coerced confession.