Manitowoc County Case Number 2005CF000381 State of Wisconsin vs. Steven A. AVERY #122987:
," saying Zellner filed it prematurely and evidence wasn't sufficient for a hearing.
While Zellner has over the last several months pointed to new transcripts of jailhouse recordings, new affidavits, new forensic examinations, and new relevant fights between Avery family members, many of her “new” theories play off of, make use of, or — in some cases — ignore information which has been contained on the record since the original investigation and trial. The judge dismissed her notion that the evidence is “new” in wholesale fashion and without parsing through Zellner’s filings to determine what truly is based on a “new” test and what is not. That failure of inquiry raises questions about the fairness of this particular order denying Avery a new trial. [
In summary, Sutkiewicz has denied Avery’s original request for a new trial, a subsequent motion to reconsider, and three supplements. Zellner filed a motion for post-conviction relief on June 7th. Judge Sutkiewicz denied it on October 3rd. Zellner subsequently filed a motion for reconsideration on October 23rd, which she supplemented with additional claims on November 1st, November 2nd, and November 17th..
Zellner has filed a Notice of Appeal. Steven Avery filed his own Notice of Appeal back in 2015, but Zellner asked for a stay on that, which sent the case back to the trial court and into the jurisdiction of Sheboygan County Judge Sutkiewicz. After filing a request for post-conviction relief, which was denied by Judge Sutkiewicz, and a Motion to Reconsider, plus Supplements to that Motion, Zeller has now filed a Notice of Appeal, effectively moving the case out of the lower court (the county circuit court) and into the Appeals Court, meaning it is no longer in Judge Sutkiewicz's court or jurisdiction. Judge Sutkiewicz ruled on the Motions and the Supplements, anyway, though -- denying all of them. [
Zellner filed the Motion to Reconsider, which was a plea for Judge Sutkiewicz to reconsider her earlier ruling on Zellner's plea for post conviction relief, which Judge Sutkiewicz denied.
Zellner then filed a Supplement to the Motion to Reconsider, and then a Second Supplement. But before Judge Sutkiewicz could or did rule on any of those, Zellner filed a Notice of Appeal on November 17, 2017, which went to the Appeals Court. That put an end to the case in Judge Sutkiewicz's court (as I understand it) and moved the case into the Appeals Court.
But Judge Sutkiewicz ruled on Zellner's Motions and Supplemental Motions, anyway, denying all of them, even though, according to Zellner, she (Judge Sutkiewicz) no longer had jurisdiction. So, I think this means all the Motions Zellner filed are for naught -- and in any case Judge Sutkiewicz denied them all --Sutkiewicz and her next filing will be a brief filed in the Appeals Court explaining why Steven Avery is appealing his conviction.
I think the Motions no longer have any standing, and, in any case, Judge Sutkiewicz denied all of them. Zellner is not appealing Judge Sutkiewicz's ruling on her Motions; instead, she has just moved on, to the Appeals Court. From now -- again as I understand it -- everything will be handled at the appeals level, and they are done with the lower or trial court (Judge Sutkiewicz's court).
In the lower or trial court, Zellner was trying to get an evidentiary hearing, which would examine new evidence, and, hopefully, result in a new trial. The Appeals Court could grant a new trial but they (again as I understand it) look at procedure instead of evidence (what the Appeals Court looks at, too, is if the judge erred in rulings during the trial, were mistakes made). As in, were Avery's rights violated during the trial, not was the evidence sufficient to convict him (the Appeals Court, as I understand it, is not about re-examining evidence, but more about procedure, and, if the law was applied correctly).
The only way the case would go back to Judge Sutkiewicz's court -- I think -- is if the Appeals Court orders a new trial. And then it might be moved to another county.
Zellner is appealing Judge Sutkiewicz's decision to deny Zellner's original June 2017 motion to the Wisconsin State Appellate Court. The Appeals Court will decide if Sutkiewicz correctly applied the law in her ruling.
An appeal has already been done on the original trial, so I don't think that Zellner can appeal anything related to that -- only the judge's denial of her June motion.
If the state appeals court rules in favor of Steven Avery and overturns Sutkiewicz's ruling and orders a new trial, the case will go back to the circuit (trial) court. What I don't know is if Sutkiewicz would still be the judge or another judge would preside.
All of this is at the state level. It isn't out of Wisconsin yet. Not even close. The appeal process has to be exhausted at the state level before it can even be taken to a federal court. The losing party at the state appellate level, either Avery or the state, can then appeal that decision to the Wisconsin Supreme Court, which will likely occur.
I believe that the Wisconsin Supreme Court can either either agree to take the case and rule on it, or decide not to hear it, at which point the state appellate court decision stands. In either scenario, that's when the state appeals have been exhausted, and only then can the case be taken to federal court in the form of Habeas Corpus, which is where Brendan Dassey's case is.
No communication was made to the court indicating that the original motion was incomplete and would be supplemented with further information. Only after the court fully considered the evidence submitted and issued its final ruling did the defense finally alert the court to the fact that it was working on further evidence to support its arguments.
[ . . . ]
It is for the court, and not the parties, to determine if amendments to motions previously filed will be permitted.
[ . . . ]The defense cannot try to amend a motion that was filed without reservation only after it receives an adverse ruling.
[ . . . ]
[T]here is no reason asserted or good cause shown as to why the motion was submitted prior to the conclusion of all scientific testing.
UPDATE NOVEMBER 17, 2017: On November 16, 2017 Kathleen Zellner filed a "
Second Supplement to Previously Filed Motion for Reconsideration."
In the "second supplement," filed on November 16th, Zellner listed her recent filings in Avery's case — most with no response from Sheboygan County Judge Angela Sutkiewicz, who is overseeing the case.
"This Judge seems like a piece of work. When I first read the ruling I was a little thrown, but I too lack the legal acumen to articulate why the Judge's ruling felt 'manifestly erroneous.' It wasn't until I read Zellner's Motion for Reconsideration that I realized how ineffectual this Judge probably is in her regular duties. Of course, there is still the more nefarious possibility that the Judge is corrupt or, at least, susceptible to influence by the State, in which case she might be fully aware she is improperly denying Avery an evidentiary hearing in violation of Wisconsin Statute 974.06." [Source]
From
Post-Crescent:
"Today is Mr. Avery's last attempt to elicit a response from this Court," Zellner wrote in Thursday's filing. "(Friday) Mr. Avery will file his notice of appeal from the Court's October 3, 2017, order."
Court records indicated Friday afternoon that a notice of appeal had been filed.
A call to Sutkiewicz's office seeking comment was not immediately returned Friday.
Zellner asked that Sutkiewicz vacate an Oct. 3 order that denied Avery a new trial and instead hold an evidentiary hearing.
Zellner also alleged that:
A report and CD containing investigative information regarding Dassey's family's computer wasn't turned over to Avery's defense attorneys and "must" contain evidence favorable to Avery. That report would have allowed the defense to establish sexual assault as the motive for victim Teresa Halbach's murder by linking another family member to the violent, sexual images on the family's computer.
Police should have investigated another potential suspect more thoroughly.
She also writes that defense attorney Dean Strang agrees that he was ineffective in representing Avery at trial because he failed to retain experts in blood spatter and ballistics.
In this amendment, an 'ultimatum' was given by Zellner, saying an appeal to the October 3rd order denying Avery a new trial would be filed if the judge didn't reply within 24 hours.
On November 17, 2017, Zellner filed a Notice of Appeal. Therefore, the next step is the Court of Appeals.
UPDATE NOVEMBER 1, 2017: Kathleen Zellner filed a "
Supplement to Previously Filed Motion for Reconsideration" on October 31st.
UPDATE OCTOBER 23, 2017: Kathleen Zellner filed a "
Motion for Reconsideration" with
20 new exhibits on October 23, 2017. She
tweeted the following on October 24, 2017:
to all the “well wishers” who hoped we were gone from SA’s case: 54 pg. motion filed today with 20 new exhibits #DreamOn #MakingAMurderer
UPDATE OCTOBER 7, 2017: Steven Avery's attorney has filed a motion in response to a judge's decision to deny Avery a new trial.
Kathleen Zellner tweeted to Avery supporters Friday that "help is on the way" in form of a motion to vacate the judge's order.
On October 3, 2017, Sheboygan County Circuit Court Judge Angela Sutkiewicz issued an order that says "the defendant has failed to establish any grounds that would trigger the right to a new trial in the interests of justice. As such, no further consideration will be given to this issue."
However, Zellner's motion states that the defense has more evidence to test, and prosecutors had agreed to let that happen.
Click here to read Zellner's motion.
Zellner states that experts planned to take swabs from Teresa Halbach's RAV-4 and conduct a complete examination of the vehicle for forensic evidence.
Zellner states that examination was supposed to happen before "weather worsened."
Zellner's team also planned to test license plates and a lug wrench.
Prosecutors also agreed that doctors would be able to complete a microscopic examination of pelvic bones.
"Defendant did not anticipate the court filing its order prior to the time Defendant could notify the court of the matters set forth herein," reads Zellner's motion.
Zellner says she showed prosecutors her motion and they agreed that it was factual. However, they would not join the motion.
The motion says the defense and prosecutors agreed to "streamline the litigation." The defense agreed to remove from its complaint allegations of ethical violations by trial prosecutor Ken Kratz, and remove references to brain fingerprinting.
Sheboygan County Judge Sutkiewicz wrote on December 1, 2017:
None of the agreements were submitted to the court for its approval until after the final decision was made in the defendant’s original motion... Furthermore, it is for the court, and not the parties, to establish scheduling for matters pending before it. While cooperation between parties is to be encouraged, that cooperation and any agreements reached are not binding on the court. Agreements should have been submitted for approval of the court prior to the final decision on the original motion being reached. [Source]
Avery and his nephew, Brendan Dassey, were each convicted of 1st Degree Intentional Homicide during separate jury trials in 2007. Prosecutors said the duo raped and murdered freelance photographer Halbach on the Avery property in Manitowoc County on Halloween of 2005. The case became one of the most high-profile murders in Wisconsin history after Netflix released the docu-series "Making A Murderer."
Avery claims that investigators planted evidence to wrongfully convict him of the murder. Avery has long argued that he was set up for filing a $36 million wrongful conviction lawsuit against Manitowoc County.
Avery had served 18 years in prison for a 1985 rape he did not commit. He was exonerated and released from prison in 2003. Avery was arrested and charged with Halbach's murder before a decision was made in the civil lawsuit.
In June, Zellner filed a 1,272-page motion for Avery's post conviction relief.
Judge Sutkiewicz, in her decision and order, responded to Zellner's claims regarding the DNA testing.
Claim #1:
A microscopic examination of the hood latch on Halbach's RAV 4 shows Avery's DNA did not get there by touching, meaning he didn't open the hood of the car.
Judge Sutkiewicz:
"This defendant's argument leaves out several significant facts. The author of the report concedes that there is no forensic test available that can conclusively determine whether DNA was left by sweat. As such, the report cannot conclusively state that the DNA on the hood latch could not have been left by the sweat of the defendant's hand.
Furthermore, while 11 of the test subjects did not leave detectable DNA on the hood latch, the fact remains that 4 of the test subjects did leave detectable DNA by touch. The report does not give any quantifiable statistics as to the amount of DNA left in his tests or comparable data to the test performed on the hood latch in question and entered into evidence at trial.
Contrary to the defendant's assertions, the test of the DNA on the hood latch does not rule out the defendant's hand as the source of the DNA."
Claim #2:
Avery's DNA found on Halbach's car key included too many cells to be transferred by simply holding the key, and could have been planted using something like Avery's toothbrush.
Judge Sutkiewicz:
"There is no question that the DNA found on the key was the defendant's. Even if the key found in the defendant's residence was the victim's subkey, and that the amount of debris found on the key is not consistent with the key being used on a regular basis, that does not establish that the key was planted."
Claim #3
Zellner says tests show a bullet fragment found in Avery's garage was not shot through Halbach's head. The claim states that it is red paint, not blood on the bullet, thus it was likely planted to wrongfully convict Avery.
Judge Sutkiewicz:
"The expert witness indicates that the tests used on the bullet are not inclusive to the point of discovering all particles present on the bullet surface. In order to completely rule anything out, the expert indicates that more detailed analysis would be necessary. Furthermore, the report indicates that the test performed cannot determine what the red substance on the bullet is. Again, the expert indicates that further testing would be needed to rule blood in or out as the source of the stain. The expert also states that he would want to supplement his report after further test results were available. The reports do not support the defendant's position."
Judge Sutkiewicz concludes:
"All three items of evidence were admitted at trial. Each was thoroughly contested by defense counsel. The reports submitted by the defendant are equivocal in their conclusions and do not establish an alternate interpretation of the evidence. Given the totality of evidence submitted at trial and the ambiguous conclusions as stated in the experts' reports, it cannot be said that a reasonable probability exists that a different result would be reached at a new trial based on these reports. As such, the defendant has not met his burden in order to obtain a new trial."
Wisconsin Attorney General Brad Schimel praised the judge's decision and order.
"I am pleased with the judge's decision which brings us one step closer to providing justice to Teresa Halbach's family. DOJ will continue to vigorously defend Avery's conviction, which was handed down by a jury of his peers," Schimel says.
BRENDAN DASSEY CASE
A federal judge has overturned Brendan Dassey's conviction, but he remains behind bars. The Wisconsin Department of Justice has appealed the judge's decision up to the U.S. Seventh Circuit Court of Appeals in Chicago.
In September, seven of eight judges on the panel heard arguments from Dassey's attorney and an attorney representing the DOJ. The judges have not released a decision. A simple majority will rule.
There is the potential for the case to go before the U.S. Supreme Court.
[
Source]
UPDATE OCTOBER 3, 2017: A circuit court judge has denied Steven Avery's request for a new trial in the murder of Teresa Halbach. Sheboygan County Judge
Angela Sutkiewicz issued a decision and order saying, "the defendant has failed to establish any grounds that would trigger the right to a new trial in the interests of justice. As such, no further consideration will be given to this issue."
"The reports submitted by the defendant were equivocal in their conclusions and do not establish an alternate interpretation of the evidence," the judge wrote in her six-page ruling,
according to the USA TODAY NETWORK-Wisconsin article. "Given the totality of evidence submitted at trial and the ambiguous conclusions stated in the experts' reports, it cannot be said that a reasonable probability exists that a different result would be reached at a new trial based on these reports."
Sutkiewicz made her ruling without even granting Zellner the chance to have an evidence hearing inside a Wisconsin courtroom.
Zellner
told Patch that she had a message to her legions of
Making A Murderer fans to keep the faith. Zellner, who is one of the country's most prolific wrongful conviction lawyers, pointed out that most exonerees are victorious at the appeals court levels, not at the state courts level, which is where Avery's case is currently. Still, she said, it's almost unheard of for a sitting judge to reject a post-conviction motion on a wrongful conviction claim without even conducting an evidentiary hearing to weigh the merits of the lawyers' arguments from both sides.
"This is not the end of the road," Zellner said. "This is the first time in one of our cases that (a judge) has not allowed us to have an evidence hearing ... We just want an opportunity to test all the evidence.
We already have very powerful evidence and the most powerful, we have not had the opportunity to file it yet."
Avery's attorney, Kathleen Zellner, released this statement to
Action 2 News: "We are filing an amended petition because we have additional test results and witness affidavits. The scientific testing is not completed. We remain optimistic that Mr. Avery's conviction will be vacated."
Patch spoke with Zellner by phone from Seattle. She said the ruling by the Sheboygan judge should not be viewed as a major setback for her and her client.
Zellner said she and the Wisconsin Attorney General's Office recently worked out an agreement to allow for additional physical evidence testing upon the RAV4 of murder victim Halbach, and the judge apparently did not know this at the time she decided to move forward and issue her ruling against Avery."
"It's not really a big deal," Zellner said of the decision. "We'll be submitting a motion to vacate the order because we have an agreement reached between both parties and the judge assumed that all the scientific evidence had been submitted. We'll have more scientific evidence as well as new witness affidavits that we'll be submitting before Thanksgiving."
'Making a Murderer': How Steven Avery Could Still Get a New Trial
A judge denied his motion – but Avery's lawyer says there's more evidence that could lead to a new day in court
By Amelia McDonell-Parry,
Rolling Stone
October 4, 2017
It isn't over yet for Steven Avery. Yesterday, a Sheboygan County, Wisconsin, Circuit Court Judge denied the Making a Murderer subject's request for a new trial, stating that the defense had not met the legal standard for overturning his conviction for the 2005 murder of 25-year-old Teresa Halbach.
"Given the totality of evidence submitted at trial and the ambiguous conclusions stated in the experts' reports, it cannot be said that a reasonable probability exists that a different result would be reached at a new trial based on these reports," Judge Angela Sutkiewicz wrote in her decision to deny the ruling, which was in response to a 1,272 page motion filed by Avery defense attorney Kathleen Zellner last June.
After the ruling was made public, Zellner sent out a press release saying she would be filing a motion to vacate Sutkiewicz's decision. According to Zellner, on September 18th – less than two weeks ago – the Wisconsin Department of Justice agreed "to conduct further testing and to allow Mr. Avery to amend his petition with new scientific test results and additional witness statements." Those results were still outstanding and the amendment was still pending when Sutkiewicz made her decision; now the motion cannot be amended unless Sutkiewicz or a higher court reverses her decision.
In an email to Rolling Stone, Zellner confirms that the judge was not aware of the agreement and that her decision came as a surprise to everyone involved.
"I am planning to discuss the situation with the prosecutor from the AG's office on Friday," Zellner writes. "They were also quite surprised by this ruling. Our hope is that we can enter into an agreed order to vacate the order with the AG, because we had agreed to test numerous additional items of evidence – including an examination of the RAV4 to determine if additional evidence could be gathered and tested.… In addition to the forensic tests, we informed the prosecutors in our face to face meeting on September 18, at their offices in Madison, Wisconsin, that we had three significant new witnesses on new Brady violations. Brady violations are the most frequent basis for convictions being vacated."
Zellner also says there are still "numerous items" listed on her original motion that have yet to be tested, suggesting that even without the new evidence, Judge Sutkiewicz's decision was based on an incomplete record. In her ruling, Sutkiewicz focused primarily on claims of evidence tampering, writing that test results related to the DNA found on Halbach's car key and car hood latch "inclusive." Zellner says of the judge's sparse six-page ruling contained "clear factual/legal errors" and "failed to even address certain issues." (Judge Sutkiewicz's office declined to comment.) Regardless, she says, "Our preference is to file an agreed motion with the AG to vacate this order."
Whether the AG's office will play ball remains to be seen – but yesterday, Wisconsin Attorney General Brad Schimel said he was "pleased" with Sutkiewicz's decision. (The Wisconsin Department of Justice did not immediately respond to a request for comment.)
"The bottom line is neither we nor Mr. Avery have any intention of giving up or not proceeding to fight for his exoneration – because he is absolutely innocent," Zellner tells Rolling Stone. "It is not uncommon for judges at the trial court level to prematurely dismiss post-conviction petitions and get reversed by a higher court. We will press on regardless of which path we have to take and we will ultimately succeed."
MrDoradus wrote at Reddit:
Claim #1:
A microscopic examination of the hood latch on Teresa Halbach's RAV4 shows Avery's DNA did not get there by touching, meaning he didn't open the hood of the car.
Judge Sutkiewicz:
"This defendant's argument leaves out several significant facts. The author of the report concedes that there is no forensic test available that can conclusively determine whether DNA was left by sweat. As such, the report cannot conclusively state that the DNA on the hood latch could not have been left by the sweat of the defendant's hand.
Furthermore, while 11 of the test subjects did not leave detectable DNA on the hood latch, the fact remains that 4 of the test subjects did leave detectable DNA by touch. The report does not give any quantifiable statistics as to the amount of DNA left in his tests or comparable data to the test performed on the hood latch in question and entered into evidence at trial.
Contrary to the defendant's assertions, the test of the DNA on the hood latch does not rule out the defendant's hand as the source of the DNA."
If there is no forensic test available to conclusively determine the DNA was left by sweat, how come the narrative presented by Ken Kratz was allowed in the original trial? It created unsupported prejudice against Avery. I guess we'll let it slide if the prosecution does it.
Claim #2:
Avery's DNA found on Halbach's car key included too many cells to be transferred by simply holding the key, and could have been planted using something like Avery's toothbrush.
Judge Sutkiewicz:
"There is no question that the DNA found on the key was the defendant's. Even if the key found in the defendant's residence was the victim's subkey, and that the amount of debris found on the key is not consistent with the key being used on a regular basis, that does not establish that the key was planted."
But the report does establish that the amount of DNA on the key is too high for it to be touch DNA. Lack of such data was enough of a reason for the judge to dismiss the first claim, yet it wasn't enough for her to consider the second one. We're at number two and there's flip-flopping between criteria already. And again, the prosecution claimed this was Teresa's primary key to support that Avery took it from her. The fact that it wasn't supports the planting theory, had the jury known this it would in fact have created a reasonable probability that a different result would be reached at a new trial based on this information.
Claim #3
Zellner says tests show a bullet fragment found in Avery's garage was not shot through Teresa's head. The claim states that it is red paint, not blood on the bullet, thus it was likely planted to wrongfully convict Avery.
Judge Sutkiewicz:
"The expert witness indicates that the tests used on the bullet are not inclusive to the point of discovering all particles present on the bullet surface. In order to completely rule anything out, the expert indicates that more detailed analysis would be necessary. Furthermore, the report indicates that the test performed cannot determine what the red substance on the bullet is. Again, the expert indicates that further testing would be needed to rule blood in or out as the source of the stain. The expert also states that he would want to supplement his report after further test results were available. The reports do not support the defendant's position."
Is this a ruling from a judge or a game of ignoring the pink elephant in the room, wooden particles embedded into the bullet? That alone sufficiently supports the defendant's position if you decide to acknowledge it.
"All three items of evidence were admitted at trial. Each was thoroughly contested by defense counsel. The reports submitted by the defendant are equivocal in their conclusions and do not establish an alternate interpretation of the evidence. Given the totality of evidence submitted at trial and the ambiguous conclusions as stated in the experts' reports, it cannot be said that a reasonable probability exists that a different result would be reached at a new trial based on these reports. As such, the defendant has not met his burden in order to obtain a new trial."
Even what Zellner already presented sufficiently creates a lot of additional doubt, that could have made the jury to come to a different conclusion. But it's apparent that there's a lot of bias involved in her decision making, most noticeable by her not having the same criteria in order to support the prosecution.
UPDATE SEPTEMBER 3, 2017: Zellner told the
Inquisitr that
she intends to amend the petition for post-conviction relief, which she filed on June 7th. The following are excerpts from the article published on September 2nd:
Zellner told the Inquisitr on September 2, 2017 that "her law office has informed the Wisconsin Attorney General of their intent to amend the 1,200-page petition for post-conviction relief" filed on June 7th.
Zeller says she has uncovered even more exculpatory evidence in her bid to free Steven Avery from prison since filing the June 7th petition.
Zellner says her latest findings – as well as "a number of other findings" (which "those who believe in Avery’s innocence have pointed to," including "Halbach’s cell phone records and surrounding tower data from October 31, 2005") – back up her claims that Halbach was not killed anywhere near Avery Auto Salvage, but clubbed to death (not shot) likely at her home in Hilbert, 30 miles away.
Zellner says "details about new direct evidence" has not been released, but will be included in the amended June 7th petition.
Zellner says "there will be more forensic testing, too, findings that will supplement the results and expert testimony" included in the June 7th petition.
Zellner says that since filing the June 7th petition, "new witnesses have come forward, leading to significant discoveries.”
These new witnesses, "who are stepping out of the shadows and telling Zellner's team what they know, were hesitant to tell the truth during the initial investigation."
Zellner’s not just after a new trial based on isolated violations. She plans to prove Avery’s innocence. “We are as fully invested in vacating Steven Avery’s conviction as we have ever been,” Zellner said.
“We strongly believe this [new] information, combined with the flawed forensic evidence used to convict Steven Avery, will free him, once again,” Zellner said.
END UPDATES
On June 7, 2017, Steven Avery's attorney, Kathleen Zellner, filed a motion for post-conviction relief at Manitowoc County Courthouse. Zellner's 1,250-page petition for a new trial includes sworn affidavits of 14 experts from law enforcement, the legal
profession, and medical and scientific fields.
The 202-page motion is available on
Kathleen Zellner's website:
https://static1.squarespace.com/static/55203379e4b08b1328203a7d/t/593879d729687f407255fdce/1496873472937/2017.06.07+-+Motion+for+Post-Conviction+Relief.pdf
Misread: SA need not prove RH is killer- but RH is suspect cops never eliminated -SA's jury did not hear evidence on RH. #MakingAMurderer - Kathleen Zellner, Twitter, June 8, 2017
Affidavits from Zellner's expert, which were attached to the motion, are also available on Zellner's website:
http://www.kathleentzellner.com/
For anyone reading the affidavits through them the first time, I would recommend starting with McCrary, as it pretty much sums up everything. Then, I would move onto the Bennett Gershman and then the Dr. Christopher Palenik. Gershman's is the best in my opinion, for the sole purpose that it shows exactly the kind of piece of shit Kratz is. Avery didn't stand a chance. Dr. Palenik then describes in incredible detail how they tested the bullet and provided a test that can be replicated by the state. He also went on into detail how they can later test the specific fragments found on the bullet to (hopefully) match the fragments to a wood shooting target and red paint from either the ladder or ceiling in the garage. Oh, and that it never went through any bones. - kylewhatever, reddit
Exhibits that have been uploaded at stevenaverycase.org:
http://www.stevenaverycase.org/appealsdocuments/
2017 report from AT&T (merged with Cingular around 2005) of Teresa's cell records:
Exhibit 72: New Halbach Cell Records
The complete list of exhibits attached to the motion is available at the link below:
https://www.reddit.com/r/TickTockManitowoc/comments/6g9xmn/list_of_exhibits_from_zellnami/
Strang and Buting's response to the motion (from
this Ferak article):
“We have not read Kathleen Zellner’s June 7, 2017, filings for Steven
Avery in their entirety, but have read the 202-page motion itself," the
attorneys said. "We are glad that she has filed a motion with
supporting documents. What really matters here, to us and we hope to
everyone, is that we get closer to the truth in this case and to justice
for everyone. We hope that Ms. Zellner, and Steven Avery’s entire
current legal team, have taken an important step yesterday toward those
two, related goals.”
Wisconsin DOJ response to the motion:
The Wisconsin Department of Justice told USA TODAY NETWORK-Wisconsin
that Avery's motion for a new trial is without merit. "We are confident
that as with Mr. Avery's prior motions, this one also is without merit
and will be rejected once it is considered by the court," said Rebecca
Ballweg, senior communications specialist in the state Attorney
General's office. "We continue to send our condolences to the Halbach
family as they have to endure Avery's ridiculous attempts to re-litigate
his guilty verdict and sentence."
From the Post Crescent:
"Mr. Avery's post-conviction counsel have completed scientific
testing and conducted an extensive re-investigation of his case, which
demonstrates that planted evidence and false testimony were used to
convict Mr. Avery of the first degree intentional homicide of Teresa
Halbach," attorney Kathleen Zellner wrote in a 1,000-plus page document
filed at the Manitowoc County Clerk of Courts office.
"Making A Murderer": Avery's attorney files 1272-page post-conviction notice
By WBAY, Manitowoc
Posted: Wed 12:43 PM, Jun 07, 2017
Updated: Wed 6:29 PM, Jun 07, 2017
Steven Avery's attorney has filed a 1,272-page notice for post
conviction relief in Manitowoc County, Action 2 News has learned.
Attorney Kathleen Zellner appeared in person to file the document Wednesday rather than providing an electronic filing.
Avery is serving a life sentence for the Halloween
2005 murder of freelance photographer Teresa Halbach. Avery is
appealing his conviction with Zellner's help.
Zellner says if the court won't release him
from prison based on these arguments, as an alternative he's entitled to
a new trial in the interest of justice.
Her filing boils down to five arguments:
Ineffective defense counsel
Zellner
claims Avery's trial attorneys, Dean Strang and Jerome Buting, failed at
representing their client effectively by not putting expert witnesses
on the stand to talk about DNA and blood spatter evidence.
Ethical violations by the prosecutor
She accuses special prosecutor Ken Kratz of ethical violations, fabricating evidence, and destroying Avery's reputation.
Brady violations
It argues a Brady
violation, referring to a U.S. Supreme Court case that ruled prosecutors
violated a defendant's due process by suppressing evidence that was
favorable to the defendant who requested it
New evidence
The Wisconsin State Crime Lab in Madison has been analyzing forensic evidence used to convict Avery.
Eight pieces of evidence — including swabs of
blood stains, blood flakes and a car key — are subject to testing. Most
of it is from Halbach’s SUV found on Avery’s Salvage property in 2005.
The testing is more advanced than what was available when Avery was
convicted of murdering Halbach in 2007.
Zellner's motion breaks down the new scientific testing she had completed on evidence for the theory that Avery's DNA was planted.
Zellner says the bullet fragment found in Avery's garage was not shot through Halbach's head.
She says a microscopic examination of the hood
latch on Halbach's RAV4 shows Avery's DNA did not get there by
touching, meaning he didn't open the hood of the car.
And Avery's DNA found on her car key included
too many cells to be transferred by simply holding the key, and could
have been planted using something like Avery's toothbrush.
From the motion:
"New scientific source testing was performed on the exemplar sub-key to
determine the source of the DNA. An experiment eliminated skin cells,
rubbed from slippers identical to the ones photographed in Mr. Avery's
bedroom on November 8, 2005, as the source of the DNA on the Toyota Key
(Item C). The quantity of skin cells detected by Dr. Reich on the
exemplar sub-key after it had been rubbed in worn slippers identical to
Mr. Avery's was not comparable to the quantity detected by Ms. Culhane
on the key. Mr. Avery's toothbrush was taken by law enforcement and
current post-conviction counsel's DNA experts' experiments have shown
that rubbing a toothbrush on a exemplar sub-key would produce a
comparable quantity of DNA. Mr. Avery's toothbrush was taken by law
enforcement from his bathroom but suspiciously was never logged into
evidence. Mr. Avery, after reviewing a law enforcement photograph taken
of his bathroom during one of the multiple searches, immediately noticed
that his toothbrush was missing. Mr. Avery had not removed the
toothbrush prior to leaving for Crivitz on November 5, 2005. The only
plausible explanation for the missing toothbrush was that law
enforcement removed the toothbrush but never logged it into evidence so
that it could be rubbed on the sub-key of Ms. Halbach."
Steven shared his home with fiancé Jodi, yet there was only
one toothbrush in the holder when photographed by crime scene
technicians (since Jodi had been locked up in county jail since August,
the framers would know to take the one that was damp)
Included in the new evidence was testing
called "brain fingerprinting," a technique to determine whether specific
information is stored in a person's brain. A federal report suggests
that testing has not been proven effective or useful, but according to
the motion, through brain fingerprinting Zellner's expert determined
Avery's brain didn't show that he knew specific details about the crime.
Allowable claim
Zellner also argues
to the court that Avery's previous post-conviction motions do not
procedurally bar him from bringing this claim.
In her motion, Zellner tries to pin Halbach's
murder on an ex-boyfriend, claiming he had motive and opportunity and
that he misled investigators about damage on Halbach's vehicle.
Kratz provided this statement to Action 2 News:
"I need to read the entire filing before I respond to specific allegations.
"However, Ms. Zellner must know that Brendan
Dassey was convicted by a 12-person jury, based in part on his March 1,
2006 interview with law enforcement. For Ms. Zellner to allege that the
prosecutor 'knew the confession was fabricated' is incredibly
irresponsible, and frivolous. I understand she has launched 1200 pages
of allegations to see if anything sticks--Ms. Zellner, in early 2016,
promised test results that would 'prove' her client was wrongfully
convicted---I suspect that, with science apparently now confirming Mr.
Avery's guilt, she has chosen to make whatever incendiary allegations
she can to make headlines, with little regard for the Halbach family or
the truth."
Strang declined to comment until he's seen the filing and read it over.
We also reached out to Buting and the state
attorney general's office, which is representing the state in the
appeal. We have not received responses.
Steven Avery's brother Chuck told us, "Justice will be served."
The Bullet Did Not Pass Through Bone and Never Had Blood on It; the Bullet Had Wood Imbedded in It and the Red Paint Deposited on It
Dr. Palenik will testify that "there is
no evidence to indicate that the bullet (Item FL) passed through bone. In fact, the particulate evidence that is present strongly suggests an alternate hypothesis, which is that the trajectory of the fired bullet took it
into a wooden object, possibly a manufactured wood product. Furthermore, the
presence of red droplets deposited on the bullet suggests that the bullet had
picked up additional contamination from its environment at some point after coming to rest (i.e., droplets of potential red paint or a red liquid)."
The State's theory that Ms. Halbach's cause of death was the result of being shot twice in the head with .22 caliber long rifle bullets is completely disproven by Dr. Palenik's testing. Because Dr. Palenik has determined that
the damaged bullet (Item FL) never passed through bone (i.e., Ms. Halbach's skull), the State's evidence that Ms. Halbach's DNA was found on the damaged bullet (Item FL) is completely discredited.
Dr. Palenik examined the control samples submitted by Mr. Haag and determined that they did have bone particles embedded in them, even after they were washed in a solution in a similar manner to Item FL at the Wisconsin State Crime Lab (" WSCL").
Mr. Haag will offer the opinion that damaged bullet (Item FL) would have had bone particles embedded in it if it had been shot through bone such as a human skull.
Microtrace Examination of Damaged Bullet (Item FL) with 2016 Stereomicroscopy Digital Video Microscropy and Scanning Electron Microscopy and Energy Dispersive X-Ray Spectroscopy (SEMIEDS) Demonstrates that the Damaged Bullet (Item FL) was Never Shot Through Ms. Halbach's Skull
The purpose of Dr. Palenik's trace examination with a 2016 Stereomicroscopy Digital Video Microscropy and Scanning Electron Microscopy and Energy Dispersive X-Ray Spectroscopy (SEM/EDS) was to determine if bone could be detected on the surface of the damaged bullet (Item FL). ...
Dr. Palenik's Examination of the Damaged Bullet (Item FL)
On 23 May 2017, a damaged bullet (Item FL) was hand carried to Microtrace by Special Agent Jeff Wisch ("SA Wisch") of the Wisconsin Department of Justice. The bullet remained in the custody of SA Wisch during the analysis performed at Microtrace.
Dr. Palenik opened, photo-documented, and examined the damaged bullet (Item FL) using a combination of 2016 stereomicroscopy and digital video microscopy.
Dr. Palenik's examination revealed that the bullet surface was covered in debris exhibiting the following characteristics:
a. Wood fragments appear to be directly adhering to or embedded in the lead of the bullet. This later observation suggests that at least some of the wood was deposited when the energized bullet encountered a wooden object. Some of the fragments observed are individual particles of wood. One particle appears to be an agglomeration of woody fragments, possibly originating from a manufactured wood product such as chip or particle board. Isolation and analysis of these 142 particles would be required to identify the species or type of wood product.
b. A rounded red droplet (-. 073 mm 2) adjacent to a smaller red droplet (-0.005 mm 2) is present on one side of the bullet. The identity of this dried liquid is presently unknown. Based upon its color and the fact that the bullet was previously extracted for DNA, it seems unlikely that this is blood. The color, texture, and shape of the deposit suggests that the material may be paint. Regardless of its identity, the texture of the bullet in the area where the droplets are observed strongly suggests that the droplet was deposited after the bullet was fired and came to rest. This material could be identified if subjected to further analysis.
c. No particles consistent with bone were detected by an examination using 2016 stereomicroscopy or digital video microscopy.
d. A waxy substance covers a significant portion (-40%) of the leading surface of the bullet. According to Mr. Haag, this wax is used by firearms analysts to orient and hold bullets during their analysis.
e. Numerous fibers are observed adhering to the waxy substance. Most of these are colorless; however, red and black fiber fragments were also noted. Other white fibers not associated with the waxy surface were observed in association with the bullet. These fibers could be more specifically identified after isolation and further analysis.
Dr. Palenik notes that the criteria for classification of each material described above is based upon in situ observations and are not necessarily inclusive of all particle types that may be present.
The sample was examined without any further preparation in a JEOL 7100FT field emission scanning electron microscope with a 50 mm 2 Oxford SDD EDS detector. The base of the bullet was fixed upon a piece of conductive, double sided, carbon tape. An image of the bullet was obtained at 20 kV. The sample was examined by a combination of backscatter and secondary electron imaging at magnifications ranging from -50x to 2000x. Elemental maps were collected from various areas on the leading surface of the bullet that showed surfaces with exposed lead (i.e., away from the waxy deposit). The elemental maps were examined for areas with elevated levels of calcium and phosphorous. Each area analyzed was rotated toward the EDS detector to increase the number of x-rays detected. No areas with elevated levels of calcium and phosphorous were detected, indicating the absence of detectable bone. A few silicon-rich areas were noted, which may suggest the presence of silicate compounds (e.g., minerals).
Dr. Palenik's Opinions Re: The Damaged Bullet (Item FL)
Dr. Palenik opines that "there is no evidence to indicate that the bullet passed through bone. In fact, the particulate evidence that is present strongly suggests an alternate hypothesis, which is that the trajectory of the fired bullet took it into a wooden object, possibly a manufactured wood product. Furthermore, the presence of red droplets deposited on the bullet suggests that the bullet had picked up additional contamination from its enviro1m1ent at some point after coming to rest (i e., droplets of potential red paint or a red liquid)." (Affidavit of Dr. Palenik, P-C Group Exhibit 48,, 19).
Based upon these findings, it is Dr. Palenik's understanding that an investigator was sent by Kathleen Zellner & Associates, P. C., to the Avery garage to review the area for possible sources of the particulate types described above. It is Dr. Palenik's understanding that the following possible sources were identified:
a. Particle board in the garage with apparent bullet holes.
b. Red painted surfaces including a ladder in the garage and a red painted ceiling.
Each of the above listed materials observed on the bullet could be identified specifically. The potential sources for the particulate matter that were recently collected from the Avery garage could be directly compared to materials on the bullet. (Affidavit of Dr. Palenik, P-C Group Exhibit 48, ~ 20).
On June 2, 2017, Mr. James Kirby and Kurt Kingler, current post-conviction counsel's investigator and law clerk, collected wood and paint samples from the Avery garage. Mr. Kingler test fired .22 long rifles through the exterior garage wall and wood samples into the interior of the garage. Those samples have been submitted to Dr. Palenik for further tes ting to determine if the samples obtained on June 2, 2017, are, in fact, the source of the red particles and wood product observed by Dr. Palenik on the damaged bullet (Item FL). Dr. Palenik will supplement his affidavit after he completes testing of these items.
Mr. Johnson, the owner and previous resident of Mr. Avery's trailer, often fired his .22 caliber rifle into gopher holes near the doors of Mr. Avery's garage. Mr. Johnson would expect spent casings to be ejected into the garage and not picked up. Further, Mr. Johnson would expect damaged bullets or bullet fragments to end up in the garage. (Affidavit of Rollie Johnson, P-C Exhibit 7; Affidavit of Steven Avery, P-C Exhibit 4)
The Hood Latch Swab Was Never Used to Swab the Hood Latch: It Probably Came from a Relabeled Groin Swab Taken from Avery
Dr. Palenik examined the hood latch swab (Item ID) that allegedly was used to swab the hood latch of Ms. Halbach's vehicle and allegedly contained Mr. Avery's DNA. Dr. Palenik has concluded, by a series of experiments of the trace materials on the
hood latch swab (Item ID), that it was never used to swab a hood latch.
Dr. Reich will testify that the DNA on the hood latch did not come from Mr. Avery touching the hood latch, and most probably came from a relabeled groin swab.
Two groin swabs were taken from Mr. Avery at Aurora Medical Center by a nurse on November 9, 2005. Mr. Avery was escorted by Inv. Wiegert to Aurora Medical Center at approximately 1:20 p.m. Agent Fassbender met Inv. Wiegert, who was escorting Mr. Avery for the examination. Mr. Avery was taken into an examination room. Present in the examination room were Faye Fritsch, RN and SANE Medical Director Laura Vogel-Schwartz, MD. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635). Towards the end of the examination, Nurse Fritsch took two swabs of Mr. Avery's groin area in direct contravention of the search warrant, which specifically restricted that DNA samples were to be taken from Mr. Avery's saliva and blood. There was no reference to groin swabs in the search warrant. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1643).
Significantly, Nurse Fritsch's documentation of taking swabs from Mr. Avery excludes any mention of taking groin swabs. A well-qualified nurse following acceptable standards of charting would never fail to document taking the groin swabs unless she were instructed not to document taking the groin swabs by Agent Fassbender or Inv. Wiegert. (Forensic Evidence Checklist, attached and incorporated herein as P-C Exhibit 26, STATE 2875, 2877). Agent Fassbender and Inv. Wiegert "conferred and determined that the search warrant did not call for that type of exam. Inv. Wiegert immediately stopped Fritsch and the exam was concluded." Again, Nurse Fritsch would never have taken the groin swabs without being specifically instructed to do so by Agent Fassbender and Inv. Wiegert. Agent Fassbender and Inv. Wiegert's explanation that they did not realize that the search warrant did not call for taking groin swabs is not credible.
Furthermore, according to Agent Fassbender's report, Nurse Fritsch disposed of the groin swabs. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, ST A TE 1635). Agent Fassbender's report is not credible because Nurse Fritsch never mentions, in her charting, disposing of the groin swabs. Agent Fassbender's report directly contradicts Mr. Avery's account of this examination as described in his affidavit. Contrary to Agent Fassbender's report, Inv. Wiegert told Nurse Fritsch that he would discard the swabs while Agent Fassbender escorted Mr. Avery into a separate room to get his fingerprints. As Mr. Avery followed Agent Fassbender and Nurse Fritsch out of the examination room, Mr. Avery heard Inv. Wiegert tell Nurse Fritsch to give him the groin swabs, and Mr. Avery observed Inv. Wiegert walk to the examination room receptacle as if to discard the groin swabs. Mr. Avery observed that Inv. Wiegert's did not drop the groin swabs into the receptacle. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1635; Affidavit of Steven Avery, P-C Exhibit 4).
Inv. Weigert, as an experienced investigator, would have known that taking groin swabs was not authorized by the search warrant, which permitted only the collection of saliva and blood samples. (11/9/05 Execution of Search Warrant, P-C Exhibit 9, STATE 1643). It is therefore reasonable to conclude, from this clear violation of Mr. Avery's Fourth Amendment rights, that Inv. Wiegert planned to use the illegally seized groin swabs from Mr. Avery to plant M r. Avery's DNA on other crime scene evidence.
Hood Latch Story Fabricated by Inv. Wiegert and Agent Fassbender in Brendan's Confession
It was not until four months after Ms. Halbach's RAV-4 was analyzed by the WSCL in Madison that investigators became interested in the hood latch. The hood latch was first introduced by Agent Fassbender and Inv. Wiegert in their March 1, 2006, interrogation of Brendan. Agent Fassbender asked Brendan, "Did he, did he, did he go and look at the engine, did he raise the hood at all or anything like that? To do something to that car?" (Pages from March 1, 2006, interrogation of Brendan Dassey ("3/1/06 Interrogation"), attached and incorporated herein as P-C Exhibit 27, STATE 4674). In a subsequent interview, Brendan denied seeing Mr. Avery open the hood. (Pages from May 13, 2006, interrogation of Brendan Dassey ("5/13/06 Interrogation"), attached and incorporated herein as P-C Exhibit 28, STATE 7300). In the May 13 interview, under pressure by Agent Fassbender and Inv. Wiegert, Brendan capitulated and changed his story to fit their narrative - that Mr. Avery opened the hood of Ms. Halbach's RAV-4 .
Reconstructed Correct Timeline (Pages 122-123)
Current post-conviction counsel, using new telephone records of Ms. Halbach, has reconstructed the correct timeline and route that Ms. Halbach took on October 31 , 2005. (Ms. Halbach 's New Cell Records, P-C Exhibit 72 11 ):
a. 8:17 a.m. AutoTrader calls Ms. Halbach. The duration of this call is one minute and seven seconds. (
New Cell Records, P-C Exhibit 72). The State omitted this call from its timeline of Ms. Halbach's phone activity. (Trial Exhibit 362).
b. 9:46 a.m. AutoTrader called Ms. Halbach. The duration of this call was thirty three seconds.
c. 11 :10 p.m. AutoTrader called Ms. Halbach again at 11:10 a.m. for a duration of five seconds, (
New Cell Records, P-C Exhibit 72, line 1342). The State omitted this call from its timeline of Ms. Halbach 's phone activity. (Trial Exhibit 362).
d. 11:44 a.m. Ms. Halbach placed a call to Barb Janda's landline. (
New Cell Records, P-C Exhibit 72, line 1345).
e. 1:10 p.m. Ms. Halbach arrived at Mr. Schmitz's residence. The State incorrectly presented a false time line to the jury based upon the erroneous recollection of Mr. Schmitz that he received a call from Ms. Halbach at 1:10 p.m. (11/3/05 CCSD Interview of Steven Schmitz, P-C Exhibit 50, STATE 1210; TT:3/14:88). Ms. Halbach's phone records show that she called Mr. Schmitz at 12:51 p.m. (
New Cell Records, P-C Exhibit 72, line 1348). Therefore, contrary to the State's timeline, Ms. Halbach arrived twenty minutes earlier at the Schmitz residence than the State represented to the jury. (TT:3/1 4:88).
f. 1:15 p.m. Ms. Halbach departed Mr. Schmitz's residence after completing his photographs. Mr. Schmitz testified that Ms. Halbach completed his appointment.
For the convenience of the Court, current counsel has converted the times listed in Ms. Halbach's phone records. AT&T maintains its phone records using a 24-hour clock with Coordinated Universal Time ("UTC"), which, on October 31, 2005, was six hours ahead of Central Daylight Time, the local timezone for the State of Wisconsin. So, e.g., the 8:17 a.m CDT call is listed as 14:17:12 on Line 30 of this exhibit. 122 "around 1:30 [p.m.]" (TT:2/13:123). In light of Mr. Schmitz's mistaken timeline, it is reasonable to conclude that Ms. Halbach departed Mr. Schmitz's property approximately twenty minutes earlier than what Mr. Schmitz testified at trial.
g.
Shortly after 2:00 p.m., Ms. Halbach arrived in the vicinity of the Zipperer residence. Despite searching for approximately ten minutes, Ms. Halbach was unable to locate their house and decided to proceed to her appointment at the Avery property. (Trial Exhibit 218).
Ms. Halbach called the Zipperers' landline at 2: 12 p.m. (Trial Exhibits 361 and 362) to tell them that she was having difficulty finding their house, so she was proceeding to her next appointment but would return.
h. 2:24 p.m. Ms. Halbach received a call from Mr. Avery who was wondering when she would arrive. Ms. Halbach did not answer the call. (Affidavit of Steven Avery, P-C Exhibit 4. Mr. Avery used the *67 feature on his cell phone so that Ms. Halbach would not feel that she needed to return his call if she did not answer because the *67 feature would not register Mr. Avery's cell phone number on Ms. Halbach,s cellphone.
i. 2:27 p.m. Ms. Pliszka called Ms. Halbach. Ms. Pliszka's account of her conversation with Ms. Halbach is not credible. At trial, Ms. Pliszka testified that it was Ms. Halbach who called her at 2:27 p.m. on October 31, 2005. (TT:2/13:80). Ms. Halbach's phone records,
as reflected in Mr. Kratz's summary exhibit, show that it was AutoTrader who called Ms. Halbach, not vice versa. (Trial Exhibits 361 and 362; TT:2/27:186-87).
Trial defense counsel failed to impeach Ms. Pliszka's testimony effectively that Ms. Halbach initiated the 2:27 p.m. call on October 31, 2005. Had trial defense counsel impeached Ms. Pliszka, they could have shown that her testimony was not credible about her alleged contact with Ms. Halbach, effectively undermining Ms. Pliszka's testimony that Ms. Halbach told her that she was on her way to the Avery property at the time of the call. (TT:2/13:80) (Interviews of Dawn Pliszka, attached and incorporated herein as PC Group Exhibit 102, STATE 5572).
j. Between 2:31 and 2:35 p.m. Ms. Halbach arrived at the Avery property. Ms. Halbach snapped one photograph of Barb,s van. Ms. Halbach began walking towards Mr. Avery' s trailer, but when she saw Mr. Avery come out of his trailer, she waved and turned around to go to her car to get his magazine. When Mr. Avery approached the car, Ms. Halbach was in the driver's seat with the door open and the engine running. Ms. Halbach handed an AutoTrader magazine to Mr. Avery and he paid her. Ms. Halbach turned left on Hwy. 147 as she exited the Avery property. (Affidavit of Steven Avery, P-C Exhibit 4).
k. 2:35 p.m. Mr. Avery called Ms. Halbach (Trial Exhibit 360) because he realized, after quickly flipping through the AutoTrader magazine, that AutoTrader also advertised front-loaders and Mr. Avery wanted to sell one of his front-loaders. Mr. Avery called Ms. Halbach at 2:35 p.m. to request that she return to the Avery property to photograph his front-loader. He terminated the call before it connected because he wanted to go and see Bobby but discovered that Bobby was not home. (Affidavit of Steven Avery, P-C Exhibit 4).
l. 2:41 p.m.
The last voicemail received by Ms. Halbach registered to her phone. Ms. Halbach was on her way back to the Zipperer residence. (Trial Exhibit 361). Based on the fact that the Zipperers had the AutoTrader magazine and receipt (11/3/05 CCSD Report, attached and incorporated as P-C Exhibit 73, STATE 2497-98; TT:2/13:132; TriaJ Exhibit 26), it is clear that Ms. Halbach located the Zipperer residence, photographed their vehicle and departed from the Zipperer residence. On November 5, 2005, Inv. Wiegert and Det. Remiker had a conversation about Ms. Halbach's appointment schedule on October 31, 2005. In that conversation, they discussed their understanding that the Zipperer residence was Ms. Halbach's final stop on October 31. (11/5/05 Wiegert/Remiker recording, attached and incorporated herein as P-C Exhibit 71)
The following is a summary of what is in pages 50-60 of the motion regarding the blood, as posted by thebeacon32 at TickTockManitowoc.
Zellner initially wanted to do radiocarbon and DNA methylation testing to
see if the blood came from the 1996 vial but her experts determined that
there wasn't enough blood to do the tests. Also abandoned that line of
testing after determining that the blood was planted using blood from
the sink in 2005. (p50)
Side Notes:
- The cut was seen at least a week earlier by Roland Johnson (p52)
- Steven Avery told Andy Colborn that Teresa Halbach had come by
around 2-2:30 but months later when Andy Colborn writes his report he
pushes it to 3pm.
Nov 3rd:
- Steven Avery breaks open the cut trying to unload a hitch and is dripping
blood as he's walking, driving the Grand Am and walking into his trailer
through the south door.
- He drips it in the sink and on floor and wraps it up in masking tape.
- He doesn't clean it up because Chuck Avery is waiting for him to go to Menards.
- He leaves the door to the trailer and the Grand Am unlocked.
- As they're leaving the property, he notices taillights close to his
trailer and the orientation of the vehicle is such that it could only
have come through the the field from Kuss Rd. Also says that the
taillights are similar to Rav-4 and not a squad car. They drive back to
check it out but the car is gone.
- They go to Menards and to the jail to drop money for Jodi. He gets
home at 10/10:30 and goes straight to bed without going into the
bathroom.
Nov 4th:
- Steven Avery gets up at 6am and goes to the bathroom and notices that most of
the blood in and around the sink has been removed. (this is new to me!)
- Later that morning James Lenk and Dave Remiker interview him.
- That evening he smells cigarette smoke in his bedroom but he doesn't
smoke. He believes this is the second time the trailer is unlawfully
entered (do we know who smokes?).
Nov 5th:
- As he's getting ready to leave for Crivitz, he notices the front
door of this trailer has been pried open. He had remembered locking the
door after James Lenk and Dave Remiker left on Nov 4th.
- As his brother Chuck Avery leaves for Crivitz, he sees tail lights in the
area where the RAV is eventually found. He tells Steven to go check on it
but they're gone by the time he gets there.
Zellner's blood spatter expert
Zellner's expert does several experiments and contends the following:
- the blood spatter found in the RAV was selectively planted and that
there would have been blood in many more places if he was actively
bleeding
- they did experiments with Steven with blood on his finger to show that
it would have also been deposited on the outside door handle, key, key
ring, steering wheel, gear shift lever, brake lever, battery cables, and
hood prop instead of just the six places it was found.
- his experiments showed that it was actually just a small amount of
blood and that one stain was most probably applied with an applicator
(uh, let me guess which one that was)
- he contends that blood flakes on the carpet of the RAV were planted
because experiments demonstrated that blood dripped on the carpeting
would be absorbed in the carpet and would not form flakes on top of the
carpet
- he contends that there is nothing unusual about the hole in the 1996 vial or the blood around the stopper
Blood spatter on rear cargo door
- he does experiments that show that the State's expert witness that
the spatter was from Teresa being thrown into the car is 'demonstrably
false' and was therefore a false narrative presented to the jury
- he contends she was struck on the head after she opened the rear
cargo door, fell to the ground next to the rear bumper on the driver's
side and was repeatedly struck with something like a mallet or hammer
Zellner criticizes defense counsel
Zellner criticizes defense counsel for not hiring a competent blood
spatter expert and for going with the planting theory of Lenk getting
blood from the vial even though there wasn't really solid proof
connecting him to it. And that they knew the hole was normal and that
the improper seal was from when the file was accessed by the Innocence
Project. They lost credibility and guaranteed his conviction.
The "NEW EVIDENCE" section focuses on the bullet, hood latch and RAV4 key, as well as "Brain Fingerprinting" of Avery.
Here are the contents of that section:
- New Scientific Evidence Demonstrates that the Damaged Bullet (FL) in
Mr. Avery's Garage was Not Shot Through Ms. Halbach 's Head Causing Her
Death as the State Contended
- Microtrace Examination of Damaged Bullet Fragment (Item FL) with 2016 Stereo microscopy Digital Video
- Microscopy and Scanning Electron Microscope and Energy Dispersive X-Ray Spectroscopy (SEM/EDS)
- Demonstrates that the Damaged Bullet (Item FL) was Never Shot Through Ms. Halbach 's Skull
- Dr. Palenik's Examination of the Damaged Bullet (Item FL)
- Dr. Palenik's Opinions Re: The Damaged Bullet (Item FL)
- Brain Fingerprinting Demonstrates Mr. Avery's Actual Innocence
- How Brain Fingerprinting Works
- Probes Used By Dr. Farwell In Brain Fingerprint Test on Mr. Avery
- Dr. Farwell 's Brain Fingerprinting Test Results for Mr. Avery
- Results of Dr. Farwell 's Brain Fingerprinting Test On Mr. Avery
- 2016 Microscope Examination of Hood Latch Swab
- Source Testing of the Hood Latch Swab
- Source Testing of sub-key Demonstrated that the DNA of Mr. Avery on the sub-key was Planted
- Applicable Case Law Re: Planting and Fabrication of Evidence Violated Mr. Avery's Due Process Rights
- Applicable Case Law Re: New Evidence
220 pages of the motion:
https://static1.squarespace.com/static/55203379e4b08b1328203a7d/t/593879d729687f407255fdce/1496873472937/2017.06.07+-+Motion+for+Post-Conviction+Relief.pdf
Other Comments About the Motion at Reddit:
Zellner has emails. P106, Ryan Hillegas' jealousy was the motive.
Tidbit from the available 15pgs - discussing Ryan Hillegas as a suspect - she says that Scott Bloedorn didn't want to talk with her investigator but then when they said something about the real killer SB blurted out "you mean Ryan Hillegas."
Her motion states Hillegas wanted to conceal and stir away attention from
him by planting the evidence undetected. But he shows Colburn the car on
the 3rd and then Hillegas plants it on the 4th?
This map from Zellner's office floor as pictured in Newsweek seems to line up exactly with Google
Earth's route from TH's home to RH's address that he gave to LE - follow
the blue line on the Newsweek map compared to the purple line on the
Google Earth map. This is RH's family home in Hilbert.
It's 5.3 miles and 8 minutes from TH's house. That's what
the map is showing, the route between TH's and RH's homes. It's RH's family's home. Check CASO pg. 31. [
magilla39]
http://imgur.com/yAXAKDR
http://imgur.com/hT9B7a7
http://imgur.com/rrDmcm1
From the post-conviction petition:
While Mr. Hillegas maintained an interest in Ms. Halbach, she was
no longer romantically interested in him. (Email from Ms. Halbach, P-C
Exhibit 53). Ms. Halbach became sexually involved with her housemate,
Mr. Bloedorn, in the months preceding her disappearance. Reportedly, Mr. Bloedorn was also Mr. Hillegas' best friend. Mr. Hillegas committed perjury at trial when he described Ms. Halbach's
relationship with Mr. Bloedorn as platonic and never romantic or sexual
in nature. Current post-conviction counsel's
investigator Mr. Steven Kirby attempted to interview Mr. Bloedorn about
false statements he had made to the police in 2005. Mr. Bloedorn refused
to sit for an interview with Mr. Steven Kirby, but when he was told
that current post-conviction counsel planned to name a suspect in Ms.
Halbach's murder, Mr. Bloedorn immediately blurted out, "You mean Ryan
Hillegas." Another point of jealousy for Mr. Hillegas might have been the fact
that Ms. Halbach, as part of her business, took nude photographs of men
and women and this activity led her to become sexually involved with one
of her clients, Mr. Czech. Mr. Czech was married to someone else at the
time. Ms. Halbach kept the nude photographs that she had taken of Mr.
Czech and his then-wife in the bedroom of her residence, a home that Mr. Hillegas frequented and moved into after Ms. Halbach's death.
Evidence shows Avery did not deposit his DNA on the victim's key by
holding it in his hand rather it was deposited by applying DNA to the
key ...such as a toothbrush
Groin swab used on the hood latch. That's pretty significant. Paragraph 170:
2016 Microscope Examination of Hood Latch Swab
359. Dr. Palenik has used a microscope developed in 2016 to analyze the
hood latch swab. Dr. Palenik has offered the opinion that the swab was
not used to swab the hood latch.
The motion alleges that the groin swab was switched out with the hood latch swab.
Page 73ish, KZ explains several breakdowns in protocol that explain
how the groin swabs were even taken to begin with, were hidden, were
then discarded but not recorded by the nurse. Then she shows how Wiegert
and Fassbender's accounts don't match, then tops it off by showing
where Weigert hid the fact that he was the one who submitted swabs into
custody and put someone else's name in place of his own to hide the fact
that he was in possession of hood latch swabs. She says he switched the
swabs is what I'm sayin'. And shows how.
'According to current post-conviction counsel's expert, Dr. Reich, the most common way
for forensic evidence to be planted is by re-labeling the forensic swabs'
Claims that the groin swab was was switched out with the hood latch
swab. That the key was planted by Lenk and Colborn. And that the killer
erased VM messages to delay the time that people realized she was
missing.
Also that the Zipperer's was her last appointment.
