Zellner says gravel pit bones were given to Halbach's family, potential evidence destroyed

Steven Avery's defense attorney says evidence that could exonerate her client in Teresa Halbach's 2005 murder was probably destroyed when investigators handed over bones from the Manitowoc County gravel pit to Halbach's family in 2011.

In the motion, Zellner says last month, a third party gave her a copy of a police report which says investigators gave gravel pit bones to a funeral home to be given to Halbach's family in September, 2011. It was a month after a circuit court ruling denying Avery's 2009 appeal was upheld by an appellate court in August, 2011.

In that police report, dated September 20, 2011, Calumet County investigators and attorneys determined what bones held as evidence could be returned to the Halbach family. Those included human bones and teeth that were collected from a burn pit on Steven Avery's property and five which Zellner says were collected from the gravel pit: Two of these are identified in the police report as "suspected human bone fragments," one as "bone fragments," and two as "possible bone fragments."

The prosecution argued tests on the gravel pit bones were inconclusive whether they were human or animal.

"The State by its actions has implicitly admitted that the bones are not only human, but that they belong to Mis. Halbach. The State cannot credibly argue that it returned animal bones to the Halbach family for burial or cremation," Zellner wrote.

Zellner plans to test the gravel pit bones with modern Rapid DNA technology. She believes new tests would prove those are Halbach's bones -- undermining the prosecution's case that Avery killed Teresa Halbach and destroyed her remains in a burn pit on his property, and proof, she says, that Halbach's bones in Avery's burn pit were planted.

Zellner says Avery doesn't know whether the gravel pit bones were buried or cremated.

She argues investigators broke the law by failing to preserve evidence and failing to notify Avery's attorneys of their intent to do so, violating his right to due process.