Motion to Stay Steven Avery's Appeal and Remand the Cause for a Hearing

We discovered there were 3 bone piles in MCGP not just 1 & they all have human bone in them. @lifeafterten @michellemalkin @newsweek @johnferak #RecklessInvestigation #MakingAMurderer2

— Kathleen Zellner (@ZellnerLaw) December 17, 2018

KZ uncovered evidence in Discovery of 3 places in the Gravel Pit (not just 1) where human bones were found, 2 of which were ignored by the State during trial. It was Eisenberg who documented evidence tags in the 7400s as more human bones with cut marks.https://t.co/FtkQpudBfN

— Lick The Knife (@RenyRoha) December 19, 2018

There are three locations in the Manitowoc County Gravel Pit were human bones were discovered, per Eisenberg's reports. This evidence was not presented at trial. Zellner is requesting ANDE Rapid DNA ID of the bones. #MakingAMurderer #MakingAMurderer2 https://t.co/iMYKwrzW0j

— Lick The Knife (@RenyRoha) December 21, 2018

Eisenberg's documentation of the bones recovered from the Manitowoc County gravel pit:https://t.co/cmVuYefgRP

The pelvic bone is not underlined. Only the "new" bones, the ones not presented to the jury, are underlined. #MakingAMurderer #MakingAMurderer2 #WorkWithKZ

— Lick The Knife (@RenyRoha) January 1, 2019

No human bones were found in Radandt's pit. It was the county quarry where the 3 piles of human bones with cut marks were recovered. These were described by Eisenberg as being human—not possibly human—but human. And they have cut marks. GPS locations:https://t.co/Uf8AasIi6P

— Lick The Knife (@RenyRoha) January 1, 2019

Items to be examined from the 3 piles of bones in the MC Gravel Pit: 7411, 7412, 7413, 7414, 7416, 7419, 7422, 7424, 8675 (according to the attachment in KZ's motion). So these items overlap and were given back to the family: 7411, 7412, 7414, 7416, 7419.https://t.co/FgJ1Srtc9P

— Lick The Knife (@RenyRoha) December 22, 2018

MARCH 11, 2019 UPDATE:

[WBAY] Steven Avery's attorney has filed a motion asking the circuit court to reverse his conviction for the 2005 murder of Teresa Halbach and order a new trial. The motion also requests a new judge to preside over the case.

Kathleen Zellner filed the post-conviction relief motion March 11 in Manitowoc County. The case, which had been in the appeals court, was sent back to circuit court so Zellner could file this motion.

The motion says the State of Wisconsin "spent an enormous amount of time and effort perpetrating a fraud upon Steven Avery's jury" during his 2007 trial for 1st Degree Intentional Homicide. Zellner claims that the state "created a narrative that Teresa Halbach was murdered in Mr. Avery's garage and burned in his burn pit."

Zellner says it is possible that remains found at a Manitowoc County gravel pit belonged to Teresa Halbach, and that would have poked a hole in the prosecution's theory that Halbach never left the Avery property on the day of her murder -- Oct. 31, 2005.

The state handed the gravel pit remains over to the Halbach family in 2011.

"The State, by its actions in returning Manitowoc Gravel Pit bones to the Halbach family in 2011, has implicitly admitted that the bones were not only human but that they belonged to Ms. Halbach," reads the motion.

The motion claims the State of Wisconsin violated Youngblood v. Arizona when it returned the bones to the Halbach family but failed to inform Steven Avery about it.

Zellner also states that Special Prosecutor Ken Kratz concealed that there were gravel pit bone fragments.

"Because of Prosecutor Kratz's misrepresentations to the jury, Mr. Avery's conviction must be reversed," Zellner states.

The motion also calls for Judge Angela Sutkiewicz to remove herself from presiding over the Avery case in circuit court. Zellner says Sutkiewicz lacks the ability to be impartial.

"By virtue of having presided over the prior civil suit filed against Mr. Avery by the Halbach family for the death of Teresa Halbach, Judge Sutkiewicz should recuse herself from the pending post-conviction case, and it should be reassigned to a different judge," Zellner says.

Zellner also notes that Sutkiewicz and Kratz served together on a Crime Victim's Rights Board in 2007-2008. That's during the time frame of the Avery trial.



CLICK HERE to read the full motion.

Zellner also filed exhibits to supplement the motion. CLICK HERE to view the exhibits.

Action 2 News reached out to the Wisconsin Department of Justice for statement on the new filing. We have not received a response at the time of the publication.

No future hearings have been scheduled.

- END UPDATE -

DEFENDANT-APPELLANT'S MOTION TO STAY APPEAL AND REMAND THE CAUSE FOR PROCEEDINGS ON CLAIMS FOR RELIEF IN CONNECTION WITH THE STATE'S VIOLATION OF WIS. STAT. § 968.205 AND YOUNGBLOOD V. ARIZONA

Defendant-Appellant, Steven A. Avery, Sr., ("Mr. Avery'') by his undersigned attorneys, Kathleen T. Zellner and Steven G. Richards, moves this Court to stay this appeal and remand the cause for a hearing on a claim for relief in connection with the State's violation of Wis. Stat. § 968.205 and Youngblood v. Arizona.

In support of this motion, Mr. Avery states as follows: Undersigned counsel has uncovered the State's violation of Wis. Stat. § 968.2.05 where it failed to (1) preserve certain suspected human bone evidence and (2) notify Mr. Avery and his attorneys of record of its intent to destroy such evidence.

Mr. Avery hereby moves for a remand to the circuit court to conduct proceedings consistent with the claim alleged herein.

After filing Mr. Avery's December 17, 2018, Motion, undersigned counsel discovered a previously undisclosed police report ("September 20, 2011 report"). Specifically, a third party provided counsel with a copy of the report.

The September 20, 2011, report reflects the Calumet County Sheriff''s Department's transfer of multiple suspected human bones from the Manitowoc County Gravel Pit to the Wieting Funeral Home for return to Ms. Halbach's family.

Specifically, the suspected human bones from the Manitowoc Quarry property tag numbers 7411, 7412, 7414, 7416, 7419-were returned to the Halbach family, according to the September 20, 2011 report.

The exhibits attached to Mr. Avery's December 17, 2018 Motion describe the location of the suspected human bones in the Manitowoc Gravel Pit, as reflected in Dr. Leslie Eisenberg's ("Dr. Eisenberg") report. (Group Exhibit 1 to the December 17, 2018 Motion)

In 2016, Suzanne Hagopian ("Ms. Hagopian") of the Wisconsin State Public Defender's Office ("WSPDO"), who had been Mr. Avery's prior postconviction and appellate attorney, provided to undersigned counsel's office entire file pertaining to WSPDO's representation of Mr. Avery.

The September 20, 2011 report is not present in undersigned counsel's file kept on this case. (Attached and incorporated herein as Exhibit B is the affidavit of Kurt Kingler, law clerk for undersigned counsel).

On January 3, 2019, undersigned counsel contacted Ms. Hagopian to request that she confirm whether she had ever seen the September 20, 2011 report.

Counsel has obtained an affidavit from Ms. Hagopian. (Attached and incorporated herein as Exhibit C is Ms. Hagopian's affidavit).

In her affidavit, Ms. Hagopian explains her representation of Mr. Avery began in July 2007 and ended when the Wisconsin Supreme Court denied his Petition for Review on December 14, 2011 (the Wisconsin Supreme Court's order was filed in Manitowoc County on December 15, 2011 (470:1-2)).

On September 20, 2011, Ms. Hagopian and her co-counsel, Martha Askins ("Ms. Askins"), were Mr. Avery's attorneys of record. 

Ms. Hagopian has no recollection of having seen this police report before undersigned counsel delivered it to her on January 3, 2019.

Further, Ms. Hagopian does not recall having a conversation with a representative of the State pertaining to tendering items of evidence from Mr. Avery's criminal case to the family of Ms. Halbach. 

Moreover, Ms. Hagopian avers that, had she seen this report or had a conversation with a representative of the State regarding the return of items of evidence to the family of Ms. Halbach, she believes she would recall it.

Attorneys Hagopian and Askins filed Mr. Avery's Wis. Stat. § 809.30(2)(h) postconviction motion on June 29, 2009. (429:1-28; 427:1-31). That motion was denied by the circuit court on January 25, 2010 (453:1-106) and Attorneys Hagopian and Askins timely appealed on February 10, 2010. (454:1-4). This Court affirmed the circuit court's order denying relief on August 24, 2011. (468:1-44).

Then, on September 20, 2011, during the pendency of Mr. Avery's appeal, the Calumet County Sheriff's Department, together with Assistant Attorneys General Thomas Fallon ("Attorney Fallon") and Norman Gahn ("Attorney Gahn"), arranged for the return of certain suspected human bones from the Manitowoc County Gravel Pit to the family of Teresa Halbach.

On September 22, 2011, Attorneys Hagopian and Askins filed their petition for review in the Wisconsin Supreme Court. (469:1-2). That petition was denied on December 14, 2011. (470:1-2).

The State, without notifying Mr. Avery and his attorneys and during the pendency of Mr. Avery's direct appeal, caused material and potentially exculpatory evidence to be transmitted to the Halbach family for its potential destruction by cremation or burial.

On January 24, 2019, undersigned counsel received her own copy of the September 20, 2011 report from the Calumet County Sheriff's Office and was able to verify the accuracy of the report provided to Ms. Hagopian.

Because the State violated Wisconsin's preservation of biological evidence statute, Mr. Avery's due process rights were per se violated. His conviction cannot stand.

Wis. Stat. § 968.205 (2001) (amended 2005) governs the preservation of physical evidence collected subject to criminal investigations. 

[...]

It is beyond question that the State violated § 968.205 when it failed to (1) preserve the suspected human bone evidence and (2) notify Mr. Avery and Ms. Hagopian of its intent to do the same because the suspected human bones were biological evidence collected in the course of the State's investigation of Mr. Avery, which ultimately led to his conviction.

Additionally, the human bones were-at minimum-suspected of belonging to the victim in the crime of which Mr. Avery was convicted. Therefore, the suspected human bones recovered from the Manitowoc County Gravel Pit are properly considered within the ambit of § 968.205(2).

Because § 968.205 does not provide a remedy for convicted persons in the event of a violation, fashioning a remedy is left to the courts-an action Wisconsin courts have yet to take.

[...]

Additionally, the State acted in "bad faith" where it was on notice that the trial court had ordered preservation of certain items of DNA evidence yet proceeded to effectuate the loss of biological evidence within its control.

On April 4, 2007, the trial court entered an order for the Preservation of Blood Evidence and Independent Defense Testing. This order contemplates and allows future DNA testing by Mr. Avery. (395:1-3). In its order, the trial court gave Mr. Avery the opportunity to, at any time, submit items of evidence for DNA testing. (396:2).

It is clear that the parties have broadly construed the scope of the April 2007 order to permit testing of a variety of biological samples deemed relevant to the instant case. The State was on notice of this agreement in September 2011 when it facilitated the destruction of suspected human bones recovered in the Manitowoc County Gravel Pit.

That the State knew it bore a duty to preserve biological material at the time it facilitated the potential destruction of the suspected human bones without notifying Mr. Avery and his attorneys. 

The State, by taking these actions, acted in "bad faith" and with "official animus" as defined by Youngblood and Greenwald. See, e.g., United States v. Bohl, F.3d 904 (10th Cir. 1994) (finding bad faith where government actors destroyed potentially exculpatory evidence when they were on notice that the evidence at issue should be preserved); United States v. Cooper, 983 F.2d 928 (1993) (finding bad faith where law enforcement agents destroyed evidence they knew the defendants asked to preserve).

[...]

In the instant case, the suspected human bones are "potentially useful," meaning that retesting of the suspected human bones from the Manitowoc County Gravel Pit could demonstrate Mr. Avery's alleged actual innocence.

It is indisputable that the State violated the DNA evidence preservation statute by returning the suspected human bones to the Halbach family. Mr. Avery's due process rights under Youngblood had been violated.

According to federal and state due process jurisprudence regarding the State's duty to preserve evidence, the appropriate remedy for a violation of Wisconsin's DNA evidence preservation statutes is the reversal of the criminal defendant's conviction.

Therefore, the case should be remanded to the circuit court to conduct proceedings to determine if there has been a due process violation and how that violation should be remedied.

Mr. Avery has brought this issue to the court's attention in a timely manner. He does not want to waive this issue by not addressing it at this time.

The appeal must be stayed and this issue must be remanded to the circuit court for proceedings that should include a hearing in which Deputy Jeremy Hawkins, Sgt. Inv. Mark Wiegert, Attorney Thomas Fallon, and Attorney Norman Gahn would be subjected to cross-examination concerning the illegal transmission, without notice to Mr. Avery's prior counsel, and the presumed destruction of the Manitowoc County Gravel Pit suspected human bones.

The undisclosed September 20, 2011 report contradicts Mr. Kratz's representations to the jury that "these bones in the quarry, I'm going to take 20 seconds to talk about, because the best anybody can say is that they are possible [sic] human." (716:78).

The State by its actions has implicitly admitted that the bones are not only human, but that they belong to Ms. Halbach. The State cannot credibly argue that it returned animal bones to the Halbach family for burial or cremation. 

The State's actions demand that further proceedings be conducted to determine if Mr. Avery's due process rights have been violated and if the State acted in bad faith in returning the suspected human bones to the Halbach family.

Conclusion

Wherefore, undersigned counsel respectfully requests that this Court enter an order staying this appeal and remanding the cause to the circuit court for proceedings to determine whether the State has violated Wis. Stat. § 968.205 and Youngblood v. Arizona.

Dated this 24th day of January, 2019.

https://static1.squarespace.com/static/55203379e4b08b1328203a7d/t/5c4a2f4eaa4a99ab401263ab/1548365666171/2019.01.24+-+Motion+to+remand+and+stay.pdf



Unless I’ve made a boo-boo, some of the items returned to the Hallbach’s are in KZs motion to test with rapid DNA (self.TickTockManitowoc)

by Coriolana

December 18, 2018

I’ve checked CASO pages 1114-1115. The following property tag numbers were returned to the Hallbach’s on 20th Sept 2011, via the Weiting Funeral home: #8318, 7924, 7925, 7936, 7944, 8675, 7964, 8675, 7964, 6200, 6197, 8118, 6200, 6197, 8113, 8148, 8150, 8140, 7411, 7412, 7414, 7416, 7419, 7420, 7421, 7426 and 7434.

KZ has asked for these items to be examined from the Manitowoc County Pit piles (3 piles): 7411, 7412, 7413, 7414, 7416, 7419, 7422, 7424, 8675 (according to the master index of gravel pit piles in the attachment to the motion.

So these items overlap and were given back to the family: 7411, 7412, 7414, 7416, 7419.

Have I red this right? Is KZ going to want to exhume remains? Were they buried?

https://www.reddit.com/r/TickTockManitowoc/comments/a7avmy/unless_ive_made_a_booboo_some_of_the_items/

Ertl, State Crime Lab Investigator, on Lack of Burn Pit Photos

By leiluhotnot
March 1, 2016

"burn pit...obviously altered...had we been working the scene from start to finish, there would likely have been more thorough photo record"

http://www.stevenaverycase.org/wp-content/uploads/2016/02/Trial-Exhibit-160-Email-Between-Fassbender-And-Ertl.pdf

[–] harmoni-pet

the entire quote?

Had we been working any of these scenes from start to finish, there would have likely been a more thorough photo record; however, under the circumstances, we were merely able to provide technical assistance, rather than complete scene processing.

That paints a much clearer picture of what John Ertl (forensic scientist from Crime Lab, not a coroner) is saying. Then if you look at the top paragraph, he explains the circumstances.

In regards to the burn pit, our involvement began with a request to use our sifting equipment. The scene had obviously been altered at that point.

Here, 'altered' can mean all sorts of things. If you're keen on the planting, you might think that means evidence corruption. If you read Sturdivant's testimony about how the bones were found, he says the dog had walked through the pit. The pit could be considered altered from foot prints, or when Sturdivant initially inspected the pit and found bones.

[–] carbon8dbev

Had the coroner been called as required there would likely have been a "more thorough photo record."

Meh. It's their job to enforce the law, not abide by it, amirite? Good honorable family men with honest moral fiber are apparently bound only by God's law, not the State's or some shit.

(1g)  A sheriff or police chief shall, immediately upon notification under sub. (1) or s. 948.23 (1) (b) of a death, notify the coroner or the medical examiner, and the coroner or medical examiner of the county where death took place, if the crime, injury, or event occurred in another county, shall immediately report the death to the coroner or medical examiner of that county.

I hate that I pay taxes to help keep these clowns employed.

[–] Refukulator

It's their job to enforce the law, not abide by it

Good one.

[–] harmoni-pet

Where did they break the law then? Why were there no charges pressed?

Forgetting to take photos of bones isn't a crime to my knowledge. They didn't even know if the bones were human when they called Crime Lab to sift through the burn pit. In hindsight we know that they should have called the coroner because they turned out to be Teresa's. But at the time, they were collecting bones as evidence while simultaneously searching for Teresa's body.

[–] kaprikorny

but you would think with such a huge conflict of interest they would have documented EVERYTHING! Better to have evidence of nothing than to NOT have evidence of something.

[–] nothinbuttherain

Sure, they didn't know. That's why you photograph the hell out of it - because you don't know. You can't say "well, we'll just put them back and take pictures now that we know this is significant."

As to why no charges were filed, I think it's pretty clear that those folks ain't charging each other with anything. And you could very well be right that unless it could be proven it was intentionally omitted it's not an actionable offense. That doesn't mean it's not wrong and sloppy.

[–] skatoulaki

This is one of the biggest WTF parts of this case to me. I can't think about LEOs planting evidence - the blood, the key - because it's just too egregious for me to even consider...but the burn pit processing completely blows my mind. If these guys, who are supposed to be professionals, who were "worthy" enough to receive awards for their handling of this case, are examples of award-winning investigators, then we have all lost.

You can't even say, "dude, you watch too much CSI...that's not how they process this kinda thing" because actually, what should have been done here - photos, coroner, forensic anthropologist, flagging or a grid - that is basic crime scene investigation. Basic. And they fucked it up.

[–] pm_a_surprise

And no rubber residue on the bones from a ten tire fire? But police plant evidence. I know it's difficult to accept for some. But it is a reality that there are bad cops and bad das. To think otherwise, is honestly, juvenile. It's to believe what we were taught in grade school about people in authority. Don't question.

[–] skatoulaki

Right? And the bone fragments that were "intertwined" with the steel belt wires. Really? Where? Do you have a photo? No? Oh, we just have to take your word for it? That's not how this works!

[–] pm_a_surprise

Exactly! So many things about this case we have to take their words for. And so many of them have been shown to be dishonest in some way.

[–] hos_gotta_eat_too

Steven Avery had 18 years to think about bad cops.

[–] s_wardy_s

The bones and the lack of fire pit photo and residue evidence are the smoking gun. The planted key, rav4, SA blood in rav4, and the bullet are all just accessory to the dumb founded clues which all point to LE and in particular Lenk and Colborn as suspect. But the bones? are we led to believe SA burned TA and then collected her bones and neatly placed them in an evidence box, and delivered them to the county evidence locker. The first photo evidence of said bones are photos of bones in a box.

[–] AlpineBlues

These friggin people. They have no conscience left. You look at them in the courtroom, you can see they are like robot wreckers of lives. Watching them sweet talk Dassey with something that resembled fatherly love, right into his own destruction.

We would be doing them and the country a huge favor if we put them behind bars. Nothing short of a lengthy sentence would help them self reflect enough to see just how evil and destructive they have become.

Help them Zellner.

[–] MnAtty

God what a mess.

[–] Classic_Griswald

Yeah, they had a coroner ready to go with a proper team to process it. Instead mail it to the lady out of town....

Total 'we didn't mean to', especially when 2 county officials called the coroner to warn her to stay away.

[–] bluskyelin4me

What is beyond crazy is in a hearing on a pretrial motion, Factbender testified that in homicide investigations they "always used the Crime Lab" to process the scene. That, my fellow redditors, would be called perjury if he wasn't a law enforcement officer. "Come on...be honest ya gotta be honest... we can't help you if you're not honest..."

[–] innocens

These two should be under more scrutiny.

Who called them? What did they ask them to do?

[–] leiluhotnot

LE clearly destroyed their own smoking gun, slam dunk, gotcha evidence.

This was all about planting evidence, not about securing, or quality of the evidence. The jury just has to hear bones found next to Steven Avery trailer.

[–] Philly005

The bones were the one piece of evidence that would have been a dead giveaway to planting if photographed and handled correctly. It's no coincidence this was the one thing that was botched /mishandled/not photographed.

This to me is the smoking gun, and the bones should have never been allowed by the judge due to the obvious failure in procedure.

[–] hos_gotta_eat_too

10 to 1 says this email exchange alone is enough to have the bones thrown out as evidence.

[–] OpenMind4U 3

IMO, the funniest part is that these questions (with great concern) have been asked by Fassbender, himself /s

[–] AlpineBlues

Yeah. Nail him Fassbender. You moron.

[–] leiluhotnot

So we, the judiciary and law enforcement (LE) are left to judge and choose between LE corruption and releasing a guilty Steven Avery. Evidence ruined, so the question would always nag. Are we releasing a guilty man. Hopefully Zellner can put us at ease.

[–] HuNuWutWen

The absence of verifiable chain of custody documentation and photographic records, for the Avery burn pit and everything allegedly collected from it, renders that box of bones inadmissible, imo.

At least, there is a very strong argument to be made that the State has failed it's responsibility to reasonably handle the evidence, thereby making it impossible to verify the origin of the evidence. We simply don't know, and can't say, where it came from...nor can anyone on site...

The State cannot testify that specific bones in a specific box were collected from that general area, let alone where at the site they might have been specifically collected from, in fact they claim to not even know what they were handling, so even more reason to grid/contamination path/photo/log...but no...oops?

I see the nonsensical "excuse" that investigators on scene didn't "know" what they were scooping up with shovels...so...just kept on diggin'?...is that it?...

they had no fuckin' idea what they were lookin' for...

yet the entire area was cordoned off with crime scene tape?...warrants were in force?...and NONE of these fully trained/experienced crime scene investigators could follow the most basic SOP?...what is this, the fuckin' X-Files?....MULDER !!!

the reason it looks fucked up is because the cops fucked it up on purpose, so spare me the bullshit...Thanks.

[–] renaecharles

Makes perfect sense that they didnt take photos as the scene had already been tampered with- per Ertl's response. When a scene has been disturbed and they take pictures of the scene they can and probably will be used in a trial and if they are not photographed as they were found it could misrepresent the evidence; then the lab would be a secondary to evidence tampering. Fassbender had to know this from previous experience in cases but needed someone to blame for not documenting the scene correctly. He shot it back to him.

[–] DominantChord

Yeah, it is one of my favorite e-mails. I have been saying many times that this is probably one of the only instances where an official is critical towards another official.

He is essentially saying to Fassbender that he and his people fucked up his (Ertl's) ability to do a proper job.