Here is a link to the procedural history (link to the brief is below): Procedural History
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
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
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
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.
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 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.
AAG Winter withdrawn per letter advising she should no longer be listed as co-counsel.
All cases pending in WI Superior Court and Appellate Court, deadlines for briefs will be extended 21 days.
New deadline is Friday, April 17
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.
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.
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.
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.
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.
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.
Decision made by Court of AppealsJuly 28, 2021
The Court of Appeals has decided the circuit court's decision was correct.