Wisconsin AG responds to Steven Avery's request for a new trial

MGN/Calumet County Jail
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MANITOWOC COUNTY, Wis. (WBAY) -- Wisconsin Attorney General Josh Kaul says Steven Avery's motion for a new trial "must be denied."

Avery is appealing his 2007 conviction for 1st Degree Intentional Homicide in the murder of Teresa Halbach. The case is the subject of the Netflix series "Making A Murderer."

On March 29, the state's top prosecutor filed his response to Avery's motion for a new trial based on alleged violations of Arizona v. Youngblood. Avery's attorney, Kathleen Zellner, says violations occurred when bone fragments found in a Manitowoc County quarry were handed over to the Halbach family without informing Avery.

"Any claim for a new trial premised upon the failure to previously test the bone fragments or the alleged improper disposition of certain bone fragment evidence is barred because the claims could have been raised previously on several occasions," reads Kaul's response.

Kaul also questions the "usefulness" of the evidence found in the quarry.

"The potential usefulness of the evidence found in the quarry is debatable. While trial counsel made use of the State’s inability to discern whether the fragments recovered from the quarry were human. Avery fails to show how a definitive determination the fragments were human is material to his most recent theory that Bobby Dassey and Scott Tadych are the real perpetrators. Avery fails to establish how a definitive determination would establish a reasonable probability of a different outcome," reads the response.

Kaul also says Rapid DNA Identification is not "authorized or approved for forensic use and therefore cannot be used to test the forensic samples at issue in this claim."

Zellner has requested to use Rapid DNA technology to test the quarry bones. 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 the State of Wisconsin "spent an enormous amount of time and effort perpetrating a fraud upon Steven Avery's jury" during his 2007 trial for 1st Degree Intentional Homicide. Zellner claims that the state "created a narrative that Teresa Halbach was murdered in Mr. Avery's garage and burned in his burn pit."

The state handed the gravel pit remains over to the Halbach family in 2011.

"The State, by its actions in returning Manitowoc Gravel Pit bones to the Halbach family in 2011, has implicitly admitted that the bones were not only human but that they belonged to Ms. Halbach," reads Zellner's motion.

The motion claims the State of Wisconsin violated Youngblood v. Arizona when it returned the bones to the Halbach family but failed to inform Steven Avery about it.

Zellner also states that Special Prosecutor Ken Kratz concealed that there were gravel pit bone fragments.

"Because of Prosecutor Kratz's misrepresentations to the jury, Mr. Avery's conviction must be reversed," Zellner states.

Zellner has also called for Judge Angela Sutkiewicz to remove herself from presiding over the Avery case in circuit court. Zellner says Sutkiewicz lacks the ability to be impartial.

Kaul's response says there is "no basis in the record requiring the Court to consider recusal."