RESPONSE OPPOSING PETITION FOR REVIEW

The state has responded to Kathleen's petition for review.  I will post a summary once I've read it.

The state claims Steven was not treated differently because his case was on TV.

Rebuttal to the State’s Response

Kathleen posted a rebuttal to the state's response.  She said she can't file it but she posted it for us to see.

Motion for leave to file corrected appellant's brief and appendix

Kathleen requested to be allowed to file a corrected brief.

Court's Decision on Motion for Leave

The CoA granted Kathleen's request and accepted her corrected filing.

Motion to Extend Time

The state has filed a request to extend their deadline to file their response to the appellant's motion.  

Court's decision on Motion to Extend Time

The time for the respondent to file its brief is extended to February 11, 2020.  https://docs.legis.wisconsin.gov/statutes/statutes/809/VIII/82/2/a

Motion to Extend Time

The state has filed another request to extend their deadline to file their response to the appellant's motion.  

Court's decision on Motion to Extend Time

The court has ruled the time for the respondent to file its respondent's brief is extended to March 27, 2020.

See Wis. Stat. Rule 809.82(2)(a) (2017-18).

Attorney Change

AAG Winter withdrawn per letter advising she should no longer be listed as co-counsel.

Deadline Extended

All cases pending in WI Superior Court and Appellate Court, deadlines for briefs will be extended 21 days.

New deadline is Friday, April 17

Deadline Extended

05/05/2020 - I just spoke to the clerk.  His explanation didn't make a whole lot of sense, but here's the conclusion.  When the second order came out, it stated all briefs with a date due on or before May 22nd would be extended.  Because the order for extension would make the due date fall earlier than May 22nd, they pushed it twice to make it fall AFTER May 22nd.  He says they did this with several cases, to give them extra time.  The correct due date is May 29.

Previous update:

Wisconsin Supreme Court has extended deadlines again for all appellate briefs due on or before May 22. This means the state’s response could be delayed an additional 21 days, beyond the prior extension of April 17. This would mean a deadline of May 8.  This date is based on what the court order actually says.  Although the CoA website shows a due date of May 29, the presumed deadline is still the 8th.  If it is confirmed to be changed to the 29th, it will be updated here.  

Due date for the state to file their response is Friday, May 29, 2020.

Here's a link to the website where you can find all the information.  Court order is attached, here.

https://www.wicourts.gov

Motion to Waive Filing Requirements

The state has requested to increase the word limit.

Court's Decision on Motion to Waive Filing Requirements

The motion to enlarge the respondents brief to 35,000 words is granted.  State's response is due Friday, May 29, 2020.

Brief of Respondent

The state's brief has been filed.  Kathleen has until June 11 to file her reply.

Motion to Extend Time & Increase Word Limit

Kathleen has filed a motion to extend the time she has to file her reply to the state's response and to increase the word limit.  Both requests will likely be granted.

Note from Tracie Strunsee: 

For those wondering why KZ needs to request to enlarge the word count for Steve's reply brief, it's because state statute governs how long all Court of Appeals briefs can be. The appellant and respondent briefs can only be 50 pages long or 11,000 words. Both KZ and the State requested an extension to 35,000 words.

The reply brief is allowed to be 13 pages or 3,000 words. KZ has probably asked for an extension to 40-50 pages.

The Court of Appeals will usually approve the extension as long as it's within reason. They denied KZ's request for 41,000 words, but granted it for 35,000 words. For a reply brief, they probably won't allow an extension to more than 11,000 words.

Appellant Reply to State Response to Appellant's Brief

The reply to the state's response has been filed.  Attachment is below. 

Here's a short statement from Travis regarding the reply:

"Well, she certainly made the points she needed to make. The first and central issue remains the "procedural bar" created by the dismissal of Steven's Pro Se MPCR [Motion for Post-Conviction Relief] and filing a new one. I think she addressed this beautifully with her estoppel argument and pointing out the State agreed to "amendments" and testing. I think she has laid out that the equities weigh in favor of allowing MPCR to proceed and evidentiary hearings go forward AND to allow the testing to proceed as agreed to."

Filing By: Unassigned District 2 - Sua Sponte

Sua Sponte means the court did something of their own accord, without any prompting from either side. 

A supporter sent a packet of information to Mark Gundrum, not to the courts. No new info, just begging him to take a look.  The supporter meant no harm, so please don't track her down.  The notation on the docket is simply because there was ex parte communication with Judge Gundrum, just like the flowers that were sent to Judge S. and it has to be recorded on the public record.

From Tracie:

A well-meaning supporter sent a packet of information to Mark Gundrum along with a letter asking him to do the right thing. Judges cannot receive anything that may give the impression that they've been influenced in any way, so Judge Gundrum was required by law to report the communication as ex parte and it was recorded on the docket.

The supporter meant no harm and actually put a great deal of time into putting together this packet. Unfortunately, it's not something that Judge Gundrum would even be allowed to read. Once he realized what it was, it would be completely improper for him to read it. I know he's going to have to recuse himself due to a prior conflict of interest in the case anyway, but he still can't be seen as not reporting something with the potential of influencing him in any way. Procedurally, this is very similar to what happened when guilters sent Judge Sutkiewicz a bouquet of flowers.

Please do not track down the supporter or harass her in any way. She didn't know that her name would appear on the docket and it was not her intention to hurt the case nor was it her intention to seek any attention for what she did.

As tempting as it may be, please do not contact the judges in this case or the court. It won't do any good and it will only cause problems. The last thing any of us want is to potentially hurt Steve's case with improper communication.

Awaiting Opinion/Decision

12/03/20 - See updated projection below

The Court of Appeals updated their website to say "Submitted on Briefs" and "Awaiting Opinion/Decision"

December 3, 2020 - Updated projection per Tracie: The CoA decision in another criminal case this week was submitted on briefs in July. The reply brief in that case was filed in January. So if we're using that as a possible guide for a time frame for Steven's decision, we might not see the opinion until April/May.

"Submitted on Briefs" means they made a decision based on the briefs.  It's very likely they won't ask for oral arguments.  The Court of Appeals Opinions Schedule does not yet show a projected date for the Opinion/Decision to be released.  Keep an eye on this website and watch for District II.

Opinions Release Schedule

Motion for Remand and Stay of Appeal

Kathleen has asked the Court of Appeals to put the appeal on pause.  A new witness, Thomas Sowinski, claims to have seen Bobby and another person pushing the RAV4 on ASY in the early morning of November 5, 2005. She wants to go back to the circuit court to deal with this issue. 

Kathleen can file a reply to their response if she wants to do that.  The CoA doesn't have to wait before they rule on the motion.  She is likely to file a reply and will probably do so in the next day or two.

IF her request is granted, she'll need to file a brief in the circuit court.  They will give her a deadline for that and the state will be able to respond.  They could give a timeline for both sides but they didn't give one for the state last time, so who knows.  This means there would be a longer delay in the decision.  If the circuit court denies the new motion, this one issue will be added to the appeal.  The circuit court CAN grant an evidentiary hearing on THIS one issue.  That's not likely but we'll see.  

In regards to whether or not Kathleen performed the required due diligence to corroborate the claim, there are a couple of things to mention. This is an assumption.  Kathleen's filing does not specify any research or searches for corroboration she's done, which could be seen as problematic.  She may reply and say her corroboration will be detailed in her brief with the circuit court if it's granted.  It also should be said the state has claimed they have provided the defense with all call logs and records of LE employees working during that period of time.  If they actually gave her everything they had, and this witness actually DID call and talk to someone, that call should be in the discovery provided to the defense.

If this witness can and/or has provided a copy of his own phone records showing he contacted LE, that would be sufficient corroboration.  Obviously, a recording of the conversation would be ideal, but if Kathleen doesn't already have that, she's not likely to get it. The law says digital copies can be destroyed within a certain time, so if they don't have the copies of the phone call (if it happened), that wouldn't be a violation of anything.

Additional note from Travis: Kathleen doesn't have to vet the witness. The state's wrong about that. If it's plausible and they are willing to sign under oath (and no promises or threats), that's all you need under Rule 11, and in a criminal post-conviction proceeding, it's even less. The state lost that point by making the argument that she could have made an open records request (that's laughable) for the phone calls. That's BRADY, Brady applies before, during, and after trial.

How do you vet it? You have no discovery, no subpoena power. Can't verify with employment/contractor records from the newspaper, can't subpoena all telephone calls. The best the state could say is she should have done an open records request for telephone calls. If I was the State I would have been citing to the record where all Manitowoc County phone call records were turned over to trial counsel on X date. It was a very, very piss poor response. And more, "decide to dismiss your appeal and pursue this", didn't they learn after the last go around? There is no way to "vet" an eyewitness's account of what they say they saw. For purposes of the Motion, it's doesn't even matter whether the witness is mistaken or wrong about what they saw. It's a Brady claim. All that matters is - was the information exculpatory? Material? In possession of the "State" (which includes all of law enforcement, and contractors, vendors). In WI, you don't even need to show bad motive on the part of State . He could have said, I saw two people pushing the RAV, they for sure were not Steven or Brendan.

Response to motion for remand

The state's response says this motion was only filed to cause further delay and that it's a new issue that shouldn't be included.  They say the appeal should proceed as-is and if Steven/Kathleen want to file a new claim after the decision on this appeal, they should do that instead.

The state also says Kathleen filed it without looking into whether or not there was anything to corroborate the claim.  They said she never submitted an open records request to see if the conversation happened and never tried to find out which female officers were working that day.  

Reply to State's Response

In a nutshell, Kathleen says the State is wrong about everything they said and she's insulted that they would accuse her of not researching the validity of a witness.  She said their claims that she didn't conduct proper background research into this witness was based on an incorrect assumption they made and listed the ways she feels the state did just that in the initial trial (re: Bobby).  She detailed the timeline of her contact with the witness, her research, and their conversations.  She provided a copy of the email he sent her in December, the email he sent to the Innocence Project in 2016 to support his claim that he tried to contact Avery's attorneys at that time, newspaper clippings showing the witness was an employee of the paper, and previously filed statements from Blaine Dassey and Kevin Rahmlow, which she says corroborate the claims this witness is making. She also included a text from this witness, which says he's not interested in the reward.  In response to the state saying she didn't perform an open records request, she showed that when she requested this information previously, the response to her was that they didn't have it, so why would she ask again?

The file is too large, so it won't let me upload it.  Here's a link to the document:  Reply to State's Response

Motion to Strike

The state has filed a motion to strike improper reply. 

I don't have the document yet.  Here's a summary:  

The State is arguing that KZ needed the court's permission in order to file a Reply and since she didn't get that, the filing was improper. 

They cite 2 cases, neither of which actually supports their argument. They are simply relying on the fact that the current statute doesn't specifically mention anything about filing Replies to motions.  It is also important to note that KZ filed a Reply on the Motion to Stay and Remand on the bone issue. In fact, she also filed 2 supplements to that Reply. The CoA even mentioned those supplements in their Remand order. They didn't say anything about the Reply being improper, though. 

Motion for Miscellaneous Relief

Kathleen has filed a motion asking the court to hold off on the prior issue so she can respond to the state's motion for strike.  Her motion says the state's motion to strike is unfounded because the cases they cited do not support their claims and because she replied to the state's responses on prior motions for stay and remand to which the state did NOT object and which the Court of Appeals considered.

State Response

The State says the motion should be denied because Kathleen is procedurally barred on the grounds that they say she received this information long before she claims to have received it.  

They go on to say the defendant has no legal basis for asking the judge to recuse herself, say they didn't break the law when they returned the bones because the bones they gave back were never confirmed as Teresa's and were also never confirmed to be human, and they also say the testing Kathleen wants to have done on the bones is not approved for forensic testing and shouldn't be allowed.

Defendant's Motion for Leave to File Defendant's Reply to the State's Response in Opposition to Defendant's Motion for New Trial.

Request for leave:

(Because the title is wordy and might be confusing)  Kathleen says the State filed a response without it having been requested by the Court.  She is asking for permission to reply to their response, as it brought up some issues that she says need to be addressed.  Kathleen says that if the Court denies her request to have her reply considered, the Court should strike the State's response since it was not requested by the Court.  Kathleen states this request is made in good faith and not for purposes of delay.

The Reply:

Kathleen says the Court should reject the State's procedural arguments, since their arguments disobey the Court of Appeals' order for there to be proceedings on the merits of the issues in the motion (regarding the return of the bones).  

She says Kirby never received the CASO documents the State claims to have sent and that any confirmation of receiving the 64-page postconviction investigation reports does not confirm receipt of the 1117 page of reports.

She quotes Gahn's comment regarding making arrangements to preserve the evidence, "until these proceedings are over because Wisconsin does have a mandatory preservation statute that would be applicable in this case." She says this confirms that the State knowingly violated the preservation statute. She said this knowing deviation confirms bad faith.

She points out that the two attorneys who returned the bones are the same two attorneys who are representing the State in this proceeding.  She says their "protestations and denials are therefore suspect; this Court must discern whether their arguments themselves are made in good faith or in the simple interest of self-preservation."

She explains, again, why these bones were so important.

The State claimed Rapid DNA testing is not approved for forensic use.  She shows that their quote from the Rapid DNA Act of 2017 didn't actually come from the Act itself, but came from a report from the House Judiciary Committee's.  She says they're not taking more recent usage and development into account.

Here's a little more in-depth explanation if you want it:

She says the State's procedural bar argument fails because they previously encouraged the defendant to file this very motion regarding this exact issue so it would NOT be procedurally barred.  She says they cannot claim one position in a proceeding that contradicts their position on the same issue in an earlier proceeding.

She says the State claimed the only thing the defendant needed in order to raise these claims is "sufficient reason" for not claiming it previously.  She repeats that it was not raised before because the State concealed the information from the defendant, so he had no way of knowing it was an issue needing to be raised.  She says the State is now arguing that the claim is procedurally barred, not because the defendant has not given a sufficient reason but because he did not raise it in a prior motion before the Court of Appeals.

She says the Court of Appeals recognized this as the proper time and forum for the defendant's claims and it would be manifestly erroneous to dismiss them.

The State says the defendant's claims are not allowed because he didn't bring up the issue of retesting the bones earlier.  She says that the issue the defendant is actually raising is the State's unlawful destruction of evidence, not simply a request to have the bones tested.  The State says the defendant could have raised the issue of the destruction of the bones earlier.  She says the State's arguments are invalid because the defendant (nor the defendant's counsel) was not previously notified of the destruction of the bones.  She says that even though the State claims to have sent the reports to Kirby, he never received them.  She says when he received the package, he delivered it to her office without having opened it.  Her law clerk attests that when he opened the package, it only contained the 64-page postconviction investigation document.

She says the State's argument cuts against the recent Wisconsin Supreme Court ruling regarding the Brady doctrine which focuses more on the State's misconduct than on the defendant's due diligence. (Here's a link to the recent Brady ruling.) She says this is exactly what the State is doing.  They're hiding evidence from the defendant and then when he finds it, they're saying he can't bring it up now because he didn't bring it up before.

In response to the State saying the claims under 974.06 are not within this court's jurisdiction (cognizable), She talks about the two cases quoted by the State in support of their claim.  The first one, she says, paraphrases the very thing she's claiming and the second one, she says, misquotes the law.  She asks the Court to consider the actual verbiage of the statute which says claims arising under Wisconsin statutes are cognizable under 974.06.

Regardless, she says, this claim is constitutional in nature and is cognizable based on that alone.  The State says Youngblood and its progeny do not apply to postconviction proceedings.  She says they do.

The State says the gravel pit bones were not subject to preservation under the statute.  She says the State is mistaken when it equates the burn pit bones with the gravel pit bones.  She says the location from where the bones were recovered is the key to their evidentiary value.  The identity of the bones from the gravel pit was never confirmed.  Due to the State's actions, the identity can never BE confirmed.  She says they're not asking the State to preserve every single piece of material; they're asking the State to follow the regulations set forth regarding those matters.

The State claimed Rapid DNA testing is not approved for forensic use.  She shows that their quote from the Rapid DNA Act of 2017 didn't actually come from the Act itself, but came from a report from the House Judiciary Committee's.  She says they're not taking more recent usage and development into account.

State Response

Defendant Supplemental Response

Kathleen says, "the State, in its response to Mr. Avery's motion, makes no effort to deny the due process violations Mr. Avery alleges, i.e., that the State concealed a police report, failed to give statutorily-mandated notice to Mr. Avery and his attorneys of its intent to destroy biological evidence, then facilitated the destruction of the same evidence. The State should not now reap the benefit of its past statutory and due process violations. Such an outcome would contravene the sense of basic fairness inherent in our justice system.

Wherefore, undersigned counsel respectfully requests that this Court enter an order staying this appeal and remanding the cause to the circuit court for proceedings to determine whether the State has violated Wis. Stat.§ 968.205..."

Note from Tracie Strunsee

"...nobody needed to get upset that they didn't address the issue of the bones since the due process violation isn't actually the motion that is in front of the court. The State argued that the Motion to Stay and Remand should not be granted on procedural grounds, so they didn't need to offer any defense on the constitutional issue.

I should have clarified that obviously the best argument against remanding the case would have been to tell the court that there was no violation since they still had the bones in custody. Since they didn't make that claim, it's safe to say that at least some of the bones were given to the family. We already knew that from the CASO report, but their silence on the issue does essentially confirm it. Personally, I think that also gives more confirmation as to why the case does need to be remanded for a hearing. There is still no reason why they should have argued anything else regarding the disposal of the evidence, though, since that was not the motion in front of the court. Any facts surrounding the disposal (what, why, how) need to be addressed in the circuit court."

Defendant Supplemental Response

Defendant Supplemental Response

Kathleen received a voicemail from Williams, which was intended for Fallon in which he was suggesting they not return Kathleen's call until after they look in the evidence bag to see what's in it. Kathleen says this concerns her very much not only because it implies they're not sure whether they have it or not but also because they agreed in 2017 to allow her to test those specific bones. She feels this shows they are being deceptive and dishonest and have misrepresented to her that they are still in possession of this particular bone. She is requesting that the court consider this information when deciding the motion to stay and remand to circuit court.

Here's a link to the audio: https://www.youtube.com/watch?v=VQJacoELZwU

State Response

State Response

Defendant Reply

State Response

Defendant Reply