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.
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?
Awaiting ruling from Court of Appeals
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.