MAKING A MURDERER: Steven Avery asks court to reject state's "inconsistent" argument

MGN/Calumet County Jail
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MANITOWOC COUNTY, Wis. (WBAY) - Steven Avery's attorneys have responded to the State of Wisconsin's request that a judge not grant Avery a new trial in the Teresa Halbach murder case.

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

The response was filed April 11 in Manitowoc County Court by Avery attorney Kathleen Zellner. Avery is trying to get a new trial based in part on the state's failure to alert Avery about bone fragments found in the Manitowoc County Gravel Pit that were handed over to the Halbach family.

In Avery's 2007 murder trial, the prosecution based its case on Avery killing and mutilating Teresa Halbach and burning her remains in his personal burn pit. Avery's legal team says if the bones found in the Manitowoc County Gravel Pit belonged to Teresa Halbach, that would undermine the jury's guilty verdict. "No reasonable trier of fact could conclude that, if Mr. Avery murdered and mutilated Ms. Halbach in the Manitowoc County Gravel Pit, he would move her bones from the gravel pit to his own burn pit and thereby incriminate himself," Zellner states.

On March 29, the state's top prosecutor filed his response to Avery's earlier motion for a new trial based on those alleged violations of Youngblood v. Arizona.

"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 Attorney General Josh Kaul's response.

Zellner calls the State's March 29 filing "unauthorized and unsolicited" because the Appeals Court did not authorize the State to do so.

Zellner responded April 11 by asking the court to reject the State's procedural arguments. Zellner says that the State is asking the Circuit Court to disobey the order of the Court of Appeals when it remanded it back to the lower court. Zellner says the State's response is "beyond the scope of the remand order."

"If the State wished to challenge Mr. Avery's claims on procedural grounds, it should have appealed the Court of Appeals' order to the Wisconsin Supreme Court," reads the response.

Zellner also says the State's argument is inconsistent with previous State filings encouraging Avery to seek his claims related to the bone fragments.

"For this reason, Mr. Avery respectfully asks this Court to reject the State's internally inconsistent argument for the procedural preclusion of Mr. Avery's claim," reads the response.

Zellner also questions the state's argument that Avery should not get a new trial because he previously failed to bring up the issue of the gravel pit bones. The bones were given to the Halbach family in 2011, but Avery's attorneys were not informed until 2018.

"Mr. Avery is not stating a sufficiency of evidence or ineffective assistance of counsel claim relating to inadequate testing of bone fragments. Rather, Mr. Avery's claims pertain to the constitutional violation stemming from the State's destruction of the human bone fragment evidence," Zellner says.

Zellner also questions the State's stance on new technology known as Rapid DNA testing. AG Kaul 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 says Rapid DNA technology has been used to identify victims of the 2018 Camp Fire in California, and would also work to identify the bones found in the gravel pit.

Zellner ends her response by asking the circuit court to grant a new trial, reverse Avery's conviction or grant other post-conviction relief.

Judge Angela Sutkiewicz continues to preside over the case. Zellner has asked the judge to remove herself. Zellner says Sutkiewicz lacks the ability to be impartial.

Avery's nephew Brendan Dassey was also convicted of 1st Degree Intentional Homicide in the Halbach case. Recently, Dassey was moved from a maximum-security prison to the medium-security Oshkosh Correctional Institution. Dassey attorney Laura Nirider tweeted that Brendan earned the transfer due to his "fine character & stellar behavior in prison." She says Dassey will have more freedom and job opportunities.