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— Lick The Knife (@RenyRoha) January 1, 2019
The pelvic bone is not underlined. Only the "new" bones, the ones not presented to the jury, are underlined. #MakingAMurderer #MakingAMurderer2 #WorkWithKZ
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
MARCH 11, 2019 UPDATE: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
[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/
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/
