MAKING A MURDERER: Attorney argues Avery’s right to fair trial was violated

Kathleen Zellner files response to State in client's appeal
Steven Avery. Photo: Wisconsin Department of Corrections
Steven Avery. Photo: Wisconsin Department of Corrections(WBAY)
Published: Jun. 26, 2020 at 8:57 AM CDT
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MANITOWOC COUNTY, Wis. (WBAY) - Steven Avery’s attorney has filed her reply to the State in effort to get a new trial for the man convicted of killing Teresa Halbach in Manitowoc County.

“Steven Avery has spent 5,343 days behind bars for his second wrongful conviction,” writes Kathleen Zellner. “He has endured the mental anguish of knowing that he is innocent and his constitutional rights to a fair trial were violated.”

CLICK HERE to read Zellner’s full response to the state.

Zellner filed the 43-page document Thursday in Wisconsin’s Court of Appeals District 2. Zellner is asking the appeals court to order additional scientific testing and grant Avery an evidentiary hearing or reverse the conviction and order a new trial.

In the brief, Zellner replies to the State’s argument in asking the court to uphold Avery’s conviction of the 2005 murder of Halbach.

Avery is the subject of Netflix’s “Making A Murderer” documentary series. In 2007, a jury found Avery guilty of 1st Degree Intentional Homicide in the 2005 murder of freelance photographer Halbach. Prosecutors said Avery and his nephew, Brendan Dassey, killed Halbach at the Avery property in Manitowoc County. The Netflix docu-series has raised issues with the investigation, prosecution and convictions.

The State argues that Wisconsin Circuit Court Judge Angela Sutkiewicz properly denied Avery’s motion for an evidentiary hearing. The state also says Avery’s allegations of ineffective counsel at trial and previous post-conviction appeals are “meritless.”

Zellner responded by saying the state “ignores the most important undisputed fact that refutes its argument that Mr. Avery is procedurally barred from bringing his new claims.” That would be an agreement reached on Sept. 18, 2017 between the state and Avery in which the state did not oppose Avery performing additional scientific testing and scheduling a four-week evidentiary hearing if needed.

“The circuit court orders are replete with legal errors,” writes Zellner. “Because of its legal errors, the circuit court failed to address many of the issues Mr. Averyraised, so there is no record of those for this Court to determine whether the circuit court erroneously exercised its discretion. In fact, it is an erroneous exercise of discretion to fail to exercise discretion over multiple issues.”

Zellner argues Avery’s rights were violated under Brady and Youngblood court decisions.

One of the main arguments for violations is the state’s failure to turn over bone fragments found in the Manitowoc County Gravel Pit to the defense. Some bones were handed over to the Halbach family before alerting Avery, according to Zellner.

Zellner cites fire expert Dr. John DeHaan’s analysis that stated Halbach’s bones were not burned in the Avery burn pit, but planted there. Zellner’s experts claim the remains were burned in a Dassey barrel, not Avery’s barrel.

“Mr. Avery was deprived of the opportunity to link the Gravel Pit bones accelerant to the Dassey burn barrel bones,” Zellner says.

Zellner also claims state witness Bobby Dassey (Steven Avery’s nephew) committed perjury during the trial when he testified that Halbach never left the Avery property on the night of the murder. Zellner says Bobby Dassey had “motive and opportunity to commit the crime and plant evidence against Mr. Avery, including bones from his burn barrel and blood from Mr. Avery’s sink.”

“Additionally, if the Gravel Pit and Dassey burn barrel bones had been linked, the State’s star witness would be converted into the primary suspect,” writes Zellner.

Bobby Dassey has denied any involvement in the murder of Teresa Halbach.

“Mr. Avery has established that the State acted in bad faith,” says Zellner. “Bad faith can also be inferred from the fact that the prosecutor deliberately misled the jury into believed that there was no possibility of human bones in the quarry.”

In it’s brief filed in May, the State says, “Though Avery raised a litany of claims in his motions, none of them entitled him to a hearing. This circuit court properly exercised its discretion to deny his motions without one. The Court should affirm the circuit court.”

“This case involves only the application of well-settled law on the procedural bar and post-conviction pleading standard to the facts, which can be adequately addressed on briefs,” reads the State’s brief.

“Accordingly, the question on appeal is not whether Avery is guilty of killing Teresa Halbach. That question was for the jury, which many years ago answered yes, beyond a reasonable doubt,” the state says. “Nor is the question on appeal whether Avery’s latest counsel can construct a different trial defense, find new ways to attack the trial evidence, or identify issues that have not been raised previously,” reads the brief.

“The only question before this Court in this appeal is whether any of Avery’s motions entitled him to an evidentiary hearing. The answer to that question is no.”

CLICK HERE to read the State’s full brief.

The court has yet to schedule further proceedings in the appeals case. Action 2 News will keep you updated.


Wisconsin Governor Tony Evers has said that he will not grant a pardon or commutation to Brendan Dassey for his conviction for the murder of Teresa Halbach.

The governor’s office and pardon advisory board sent a letter to Dassey, 30, and his attorneys stating:

“Unfortunately, we are unable to consider your application for pardon because you do not meet one or more of the required eligibility conditions.”

The governor’s office says those requirements are:

“It has not been at least five years since you completed your entire sentence for the conviction you want to be pardoned.”

“You are currently required to register as a sex offender under Wis. Stat. 301.45.”

Dassey attorneys Laura Nirider and Steven Drizin say they are not giving up hope for clemency.

“Although the Pardon Advisory Board has stated that it will not consider commutations, Governor Evers is not bound by those rules. He does have the power to issue commutations under the Wisconsin Constitution and should do so when, as here, courts fail to deliver justice. Our partners around the country stand ready to work with the Governor to develop an appropriate process for the review of commutation petitions,” reads a statement from attorneys Laura Nirider and Steven Drizin.

The clemency petition reads, “Brendan Dassey was a sixteen-year-old, intellectually disabled child when he was taken from his school and subjected to a uniquely and profoundly flawed legal process. That process rightly sought justice for Teresa Halbach, but it wrongly took a confused child’s freedom in payment for her loss. Such a debt can never be justly repaid with the currency of innocence.”

The United States Supreme Court declined to hear Dassey’s appeal based on the argument that investigators used improper techniques while interrogating Dassey, a teenager with a low IQ. They say investigators made false promises to Dassey that he’d be released if he told them about the killing.

Dassey attorney Steven Drizin says the Dassey confession tapes show evidence of police coercion that included “tactics that can be toxic and can produce false confessions.”

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