This is a preliminary summary. I will add to it in the next couple of days, as time permits. Thank you, everyone, for your patience!
Kathleen is asking
the Court of Appeals (CoA) to grant Steven either an evidentiary hearing or a
new trial. The information she lists in
support of this request is pretty much a recap of everything we've already seen
her file in the circuit court already. I
simplified the main arguments a little and I will add to this as I get more of
the summary completed.
The Appellate Brief argues a hearing or a new trial is justified because the circuit court was wrong to have:
denied Mr. Avery’s motion to allow additional scientific testing
dismissed Mr. Avery’s second motion without addressing the 5 Brady claims raised and raised a 6th Brady claim when it denied his motion to supplement, which deprived him of due process
failed to address Mr. Avery’s claim of ineffective assistance of trial counsel
ruled that it was not authorized by statute to resolve claims of ineffective assistance of prior postconviction counsel, and that Mr. Avery would have to pursue that claim with the Court of Appeals
dismissed Mr. Avery’s second motion without requiring the State to respond or conduct an evidentiary hearing
applied the wrong standard to the newly discovered evidence
ignored that Mr. Avery raised sufficient reason as to why these issues could not have been raised in prior motions
denied Mr. Avery’s motion to reconsider and his three supplements to said motion, which included new evidence
ignored the subsequent briefs submitted by the parties in response to the motion to supplement
denied Mr. Avery’s supplemental motion for postconviction relief concerning the discovery
of human bones in the Manitowoc County Gravel Pit before trial
Kathleen brings up
the decisions from the circuit court which state they were denying a motion
because Steven didn't bring it up earlier and she provides reasons as to why he
couldn't have. Not the least of which is
because (on more than one occasion), he didn't know it existed because law
enforcement was keeping/hiding it from him and his counsel.
She talks about how
the withholding of discovery/evidence by the state prevented the defense from
being able to present Denny suspects at trial.
The brief also
claims, on several occasions, that the circuit court ignored, disregarded, or
otherwise did not follow the CoA's instructions.
She calls out Kratz
for possibly having seen unedited footage of the flyover video, which does not
seem to exist now and she brings up the fact that Kratz said only one person committed
the crime.
She talks at length
about how Steven is entitled to further testing of the RAV and says the
preservation order entered after trial allows for testing of the RAV without a
court order being necessary. She
mentions many other places in the RAV which were not tested and should have
been.
She talks about
Denny suspects and all the supporting evidence she has obtained to justify
naming these subjects. She also calls
out the circuit court in regard to the Dassey-Janda computer here: "If the
circuit court had conducted an evidentiary hearing, the issue of who had access
to the Dassey-Janda computer during the week from 6:30 a.m. to 3:30 p.m. could
have been definitively established through witness testimony." And in
regards to the many images that were deleted from the computer, here: "Because
the circuit court denied a hearing, the issue of the deletions remains
unresolved."
She criticizes
Fassbender and Wiegert for what they did to Brendan and calls them out by
saying, "It is a reasonable inference that SA Fassbender and Inv. Wiegert
were highly motivated to provide corroboration for the confession they
created." (Emphasis added by me.)
She talks about the
hood latch swab and mentioned having evidence showing the swab never touched
the hood latch.
"The
instructions SA Fassbender and Inv. Wiegert gave Dep. Hawkins and Sgt. Tyson
revealed their illegal plan, because they failed to request swabbing of the
interior hood release lever and hood prop, which, by necessity, Mr. Avery would
have handled when opening the hood to disconnect the battery cable. They knew
Mr. Avery was never in the RAV-4, so no additional swabbing was requested."
Kathleen has a lot
to say about the bones having been given back to the Halbach family. She says the circuit court failed to acknowledge
and understand the Eisenberg reports provided to the court by Mr. Avery.
She said the circuit
court denied Steven's claims by "blatantly misstating the evidence in the
record. Specifically, the circuit court erred in concluding that the Manitowoc
County Gravel Pit bones were non-human, when, in fact, the Manitowoc Quarry
bones were labeled as “human” by Dr. Eisenberg in her reports."
She also goes on to
say the circuit court was clearly confused, incorrectly citing Steven's
previous arguments and about which bones those arguments referenced.
She finishes with the
fact that if the circuit court had just had an evidentiary hearing, all of this
would have been explained and the court never would have made this mistake.
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 in 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
Awaiting ruling from Court of Appeals
The State's deadline to respond is February 11, 2020.
Motion to enlarge the appellant's brief to 41,000 words.
Decision made by Court of Appeals
Sept. 18, 2019Kathleen must file her brief on or before October 14, 2019 and it may not exceed 35,000 words.
"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
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.
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, 2019Circuit 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?
Appellant brief is due to the Court of Appeals no later than Monday, October 14, 2019.
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
Decision made by Court of Appeals
Feb. 25, 2019Stay 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?
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