Steven Avery case goes back to circuit court

MANITOWOC COUNTY, Wis. (WBAY) - Steven Avery's case is going back to circuit court.

A Wisconsin Appeals Court on Thursday denied his motion to present a CD of previously undisclosed evidence before the court.

The Appeals Court instead remanded the case back to circuit court to allow Avery a chance to present the evidence there.

Avery's attorney, Kathleen Zellner, tweeted after the decision. She said, "We knew the Appellate Court would not let this undisclosed evidence be dismissed w/o a full examination of it. Back to circuit court."

In a second tweet she said, "The Wisconsin Appellate Court is letting us supplement our post-conviction motion with new Brady evidence: the CD."

Avery's legal team has 30 days to file their motion to supplement the record in circuit court. The circuit court will then have 60 days to give its order.

Avery is appealing his 2007 1st Degree Intentional Homicide conviction for the murder of freelance photographer Teresa Halbach in Manitowoc County. The case gained an international following with the 2015 Netflix docu-series "Making A Murderer."

Zellner asked the District Appeals Court II to grant her motion to supplement the record with evidence the defense says was withheld by the state until April of 2018.

Zellner says that evidence includes a forensic report, 14,099 images, an additional 1,625 recovered pornographic images, and 2,632 search results for "body, blood, bondage, bullet, cement, DNA, fire, gas, gun, handcuff, journal, myspace, news, RAV, stab, throat, tires."

The defense says this evidence was recovered from a computer at the Brendan Dassey's home. Dassey, Avery's nephew, was also convicted for Halbach's murder. However, Avery's defense claims another person in the Dassey home was using the computer to view "violent images of sexual acts" and dead women's bodies.

Avery trial attorney Jerome Buting says he was unaware of the CD of evidence. Zellner says the evidence would have bolstered Avery's argument for a Denny motion, which lets a defendant tell jurors about other potential suspects.

Zellner claims Avery did not get a fair trial because this evidence was unknown to them.

The state in its response said the court should deny Avery's motion because he is "attempting to alter the record with material that the circuit court did not consider when making the decisions that are before this Court on review."

The state said issues not raised in trial court cannot be considered for the first time on appeal.

Avery's defense countered by saying evidence of the violent pornography had been presented before the circuit court before, but not the CD with the "missing crucial data."

"This court should not allow the State to hinder Mr. Avery's appeal by allowing it to deliberately withhold evidence that has been in its possession for years and is critical to the determination of Mr. Avery's Brady issues," read the defense response.

Ultimately, the Appeals Court sent the case back to the circuit court where new evidence could be considered.

The United States Supreme Court will discuss it on Brendan Dassey's case on June 14. Dassey is asking for a review of his conviction, claiming his confession to the murder of Halbach was coerced by investigators.

The U.S. Supreme Court will likely announce their decision on a possible review by on June 18.