Oct. 11, 2019
Filed by
Kathleen Zellner
Summary

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.

Additional Filings
Motion for leave to file corrected appellant's brief and appendix
Oct. 17, 2019
Oct. 17, 2019
Filed by
Kathleen Zellner
Summary

Kathleen requested to be allowed to file a corrected brief.

Court's Decision on Motion for Leave
Oct. 21, 2019
Oct. 21, 2019
Filed by
Court of Appeals
Summary

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

Motion to Extend Time
Nov. 13, 2019
Nov. 13, 2019
Filed by
State of Wisconsin
Summary

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
Nov. 14, 2019
Nov. 14, 2019
Filed by
Court of Appeals
Summary

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
access_time

The State's deadline to respond is February 11, 2020.