Sept. 17, 2019
Filed by
Kathleen Zellner
Summary

Motion to enlarge the appellant's brief to 41,000 words.

Decision made by Court of Appeals
Sept. 18, 2019
gavel

Kathleen must file her brief on or before October 14, 2019 and it may not exceed 35,000 words.

March 11, 2019
Filed by
Kathleen Zellner
Summary

"In 2007, the State spent an enormous amount of time and effort perpetrating a fraud upon Steven Avery's ("Mr. Avery") jury."


Kathleen is claiming that when the State gave the bones to the Halbachs, they violated the law (linked below) and Steven's rights, requiring a reversal of his conviction and a new trial. 


Here's a link to the attachments:  Click Here

Here's a link to the flyover video: Click Here


In support of her claim that the State DID, in fact violate his rights, her motion details the following:

1. The State knowingly gave the jury false and misleading information about the bones and concealed evidence in order to make sure Steven was convicted.

If the State had instead given the truth of those facts to the jury, Steven's trial defense team would have been able to present theories to the jury that would have been backed up by those facts. 

She cites the lack of tire tracks in the Nov 4 flyover and the presence of them in the Nov 5 flyover.

2. The State admitted to having given the bones back despite falsely indicating to Kathleen for the past few years that they were in possession of said bones.

3. The State's dishonesty, violation, and concealment were not uncovered until now and that's why this is new evidence.

4. By returning the bones from the gravel pit to the Halbachs, the State has admitted the bones were human and they belonged to Teresa.

This admission changed the scene of the crime contrary to the State's narrative at trial.

5. The State acted in bad faith when it violated the law by lying to the jury, concealing evidence, and returning the bones to the Halbachs without following the proper procedure.

6. The State lied to the jury about other aspects of the case, which constitutes bad faith and warrants a reversal of the conviction.

She cites other cases to support the claim the conviction reversal is warranted.  Among other statements, this one is listed: "A prosecutor's knowingly false statements during closing argument violate a criminal defendant's right to due process."

7. She cites the differences between the narrative in Steven and Brendan's cases (this is background to imply that Kratz will argue anything, whether true or not, to win.)


The final point in the motion calls attention to the following:

Judge Sutkiewicz should disqualify herself from the case due to the following conflicts of interest (with examples cited):

She was the judge in the Halbachs' civil suit against Steven

She worked with Kratz at the time of the original trial


Here is a link to the Wisconsin Statute the State allegedly violated in this motion: 968.205  Preservation of certain evidence.

Here is a link to the changes made to the above statute with the Avery Bill: Sections 32-39


Additional Filings
State Response
March 29, 2019
March 29, 2019
Filed by
State of Wisconsin
Summary

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.
April 11, 2019
April 11, 2019
Filed by
Kathleen Zellner
Summary

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.


Decision made by Circuit Court
Aug. 8, 2019
gavel

Circuit Court rules that the motion is denied because the defense hasn't met the required burden to support their claims.  She says the defendant's rights were not violated because the bones were never proven to be Teresa's and even though the State implied their belief that the bones were Teresa's, that doesn't scientifically transform them into Teresa's remains.


Regarding the recusal, Judge Sutkiewicz responds as follows:

Regarding the fact that she was the judge in the Halbachs' civil suit against Steven:

    She was only the judge in the capacity of dismissing the case.  She didn't actually rule on anything.

Regarding the claim that she worked with Kratz at the time of the original trial:

    She wasn't a judge at the time, it was a voluntary public board, and she never practiced law with him, so it doesn't apply.


What's next?
announcement

Appellant brief is due to the Court of Appeals no later than Monday, October 14, 2019.

Jan. 24, 2019
Filed by
Kathleen Zellner
Summary
Kathleen has just been notified that some of the bones were returned to the Halbachs without notifying SA's counsel at the time, which violates a WI statute requiring them to preserve certain evidence and notify all defendants prior to any destruction or disposal of certain evidence. She is requesting the appeal be put on hold so she can file a motion with the circuit court, stating the circuit court should find Steven's rights were violated and his conviction should be overturned.
Additional Filings
State Response
Jan. 29, 2019
Jan. 29, 2019
Filed by
State of Wisconsin
Summary
State says the bones are a completely separate issue and defendant should either proceed with the appeal and address these bones with the circuit court after the appeal is finished or she can cancel the appeal and file a new motion with the circuit court. This was essentially the same Response they filed to the Motion for Remand in December of 2018 when she sought new scientific testing.
Defendant Supplemental Response
Feb. 1, 2019
Feb. 1, 2019
Filed by
Kathleen Zellner
Summary

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
Feb. 2, 2019
Feb. 2, 2019
Filed by
--
Summary

"...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
Feb. 11, 2019
Feb. 11, 2019
Filed by
Kathleen Zellner
Summary
Kathleen is stating that the evidence logs ("Evidence Property Custody Documents") she was in possession of predated September of 2011 and did not have notations about bones being signed out by Wiegert. Second, she wanted to show that the current Evidence Property Custody Documents reflect that Wiegert signed for the receipt of the bones and indicates this would be consistent with the CASO report that it was for the purposes of returning them to the Wieting Funeral Home. She wants the CoA to take into consideration the differences of the relevant Evidence Property Custody Documents she attached. Not much argument at all in the body of this "letter brief".
Defendant Supplemental Response
Feb. 13, 2019
Feb. 13, 2019
Filed by
Kathleen Zellner
Summary

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

Decision made by Court of Appeals
Feb. 25, 2019
gavel

Stay and remand granted.

The court calls out the State for failing to address or respond to Kathleen's allegations for destroying the items the state previously agreed to preserve. The court also says they understand why the defense would disagree with canceling the appeal or waiting until the appeal is finished to bring this issue up because dismissing the appeal would mean these issues wouldn't be allowed to be addressed in the appeal. The court says there is a benefit to addressing these issues while they're fresh instead of waiting, which would mean these things will not be able to be brought up at all. Due to these reasons, the court wants all these matters included in the appeal so there will be only one appeal process before them with everything that needs to be addressed at once. In order for them all to be included in this appeal, the defense will have to address these other issues in the Circuit Court first so she can add them to the appeal if the appeal is still necessary after the Circuit Court's proceedings.

What's next?
announcement

The appeal is remanded to the Circuit Court to permit Kathleen to file a motion regarding the State's violations.

Kathleen must file within 14 days.  Her filing is restricted to this issue of the bones having been given back.

The Circuit Court is required to conduct any proceedings necessary to address these claims and enter an order with their decision.  Any requests for hearing transcripts must be requested within 10 days after the Circuit Court's final decision.  Any transcripts that are requested must be filed and served within 30 days.

The Circuit Court must provide the Court of Appeals with their order and any related documents within 20 days after the order is filed.

The appeal is stayed until the return of the Circuit Court's decision.

Kathleen must file her opening appellant's brief within 40 days after the appeal returns to the Court of Appeals.

**IF THE CIRCUIT COURT DENIES THE MOTION FOR AN EVIDENTIARY HEARING OR A NEW TRIAL, KATHLEEN CAN INCLUDE THIS INFORMATION IN HER APPELLANT'S BRIEF.

**IF THE CIRCUIT COURT ORDERS AN EVIDENTIARY HEARING OR A NEW TRIAL, THE STATE WILL LIKELY APPEAL IT AND IT WILL END UP BACK IN THE COURT OF APPEALS.

**IF AND WHEN THE COURT OF APPEALS RULES ON THAT, ONE OF THE PARTIES WILL BE UNHAPPY WITH THAT DECISION AND THE NEXT STEP FOR THEM WOULD BE TO FILE WITH THE WISCONSIN STATE SUPREME COURT

Dec. 17, 2018
Filed by
Kathleen Zellner
Summary
Defendant is asking the CoA to put the appeal on hold so she can file a motion with the circuit court requesting to have the bones that were previously unable to be tested for DNA submitted for a new type of Rapid DNA testing that has been approved by the FBI to positively identify victims after having been burned in a fire and whose bones are in a similar condition as the bones in evidence.
Additional Filings
State Response
Dec. 28, 2018
Dec. 28, 2018
Filed by
State of Wisconsin
Summary
State says the bones are a completely separate issue and KZ should either proceed with the appeal and address these bones with the circuit court after the appeal is finished or she can cancel the appeal and file a new motion with the circuit court.
Decision made by Court of Appeals
Dec. 28, 2018
gavel
Denied on the basis that further scientific testing of evidence is not necessary to decide the appeal.
What's next?
announcement
Kathleen must file appellant brief no later than February 1, 2018
Dec. 7, 2018
Filed by
Kathleen Zellner
Decision made by Court of Appeals
Dec. 10, 2018
gavel
Granted
What's next?
announcement
Kathleen must file appellant brief no later than December 20, 2018, limited to 35,000 words
Oct. 3, 2018
Filed by
Kathleen Zellner
Decision made by Court of Appeals
Oct. 8, 2018
gavel
Granted
What's next?
announcement
Kathleen must file appellant brief no later than December 20, 2018
July 6, 2018
Filed by
Kathleen Zellner
Summary
Defendant is requesting to supplement the record with a CD she claims was suppressed by the prosecution until April 2018. She is requesting an evidentiary hearing to prove a Brady violation due to the prosecution withholding the CD which would have allowed the defense to use Bobby as a Denny suspect. She says the evidentiary hearing will show SA is entitled to a new trial.
Additional Filings
State Response
July 27, 2018
July 27, 2018
Filed by
State of Wisconsin
Summary
State claims that the information on the CD was provided to the defense even if the actual CD was not provided. State claims there was no Brady violation and that the informantion on the CD is of no consequence and immaterial. Says no evidentiary hearing is warranted.
Defendant Reply
Aug. 3, 2018
Aug. 3, 2018
Filed by
Kathleen Zellner
Summary
Kathleen argues why the State is wrong, further explains why the CD is material and of consequence, and reiterates the reasons why there was a Brady violation. She asks, again, for the court to grant her an evidentiary hearing to prove it.
Decision made by Circuit Court
Sept. 6, 2018
gavel
Denied based on the fact that Kathleen submitted an argument of one paragraph and it was insufficient to warrant a ruling in favor of the defendant.
What's next?
announcement
Kathleen has to file appellant brief with the Court of Appeals no later than 10/16/2018
May 15, 2018
Filed by
Kathleen Zellner
Summary
Motion to supplement the record with the CD of the contents found on the Dassey computer which was disclosed to the defense for the first time on April 27, 2018. KZ claims the withholding of this CD supports her claim of Brady violations.
Additional Filings
State Response
May 25, 2018
May 25, 2018
Filed by
State of Wisconsin
Summary
State says defense is trying to supplement the record with material that was not before the circuit court during the proceedings to which the appeal applies and the appeal is limited to the record before the circuit court during the aforementioned proceedings.
Defendant Reply
May 29, 2018
May 29, 2018
Filed by
Kathleen Zellner
Summary
Kathleen says the State is incorrect in saying the material was not before the circuit court in the previous proceedings. She says the information contained on the CD was before the court. The only thing she's asking to add to the record is the actual disc.
Decision made by Court of Appeals
June 7, 2018
gavel
Motion to supplement the record denied but the matter is remanded to the circuit court. Kathleen must file a motion with the circuit court (Judge Angela) to pursue a supplemental post-conviction motion which must be filed within 30 days. Circuit court is ordered to conduct any necessary proceedings and rule within 60 days after motion is filed. Appellant must file opening brief presenting all grounds for relief within 40 days after the filing of the order of the circuit court.
What's next?
announcement
Kathleen must file motion with circuit court within 30 days.
May 11, 2018
Filed by
Kathleen Zellner
Summary
Request to enlarge word count for Appellant's Brief from 50 pages/11,000 words to 31,000 words
Decision made by Court of Appeals
May 14, 2018
gavel
Granted
What's next?
announcement
Kathleen must still file appellant brief no later than May 21, 2018, but she can now go up to 31,000 words
March 16, 2018
Filed by
Kathleen Zellner
Summary
Defendant is requesting more time to file initial Appellant's Brief.
Decision made by Court of Appeals
March 19, 2018
gavel
Granted
What's next?
announcement
Kathleen must file appellant brief no later than May 21, 2018
Jan. 18, 2018
Filed by
Kathleen Zellner
Summary
Defendant is requesting more time to file the initial Appellant's Brief.
Decision made by Court of Appeals
Jan. 19, 2018
gavel
Granted
What's next?
announcement
Kathleen must file appellant brief no later than March 30, 2018