Motion to Stay Appeal and Remand (2018)

***Defendant-Appellant’s Motion to Stay Appeal and Remand the Cause For New Scientific Testing*** is a motion filed by Steven Avery’s postconviction attorney Kathleen Zellner in December 2018. Zellner asks the Court of Appeals to remand this case back to the circuit court, while the appeal stays (put on hold), so she can request the circuit court judge to determine if an order can be made to have some of the burned remains found in the Manitowoc gravel pit, including the pelvis bone, be submitted to a ANDE Rapid ID testing, a new scientific method of DNA ID'ing that has also been succesful in ID'ing burned remains.

The vast majority of burned remains in the quarry were determined to be non-human bones by State expert Leslie Eisenberg, but a small portion of these bones were determined “suspected possible human”, because no analysis (besides a visual examination) could be performed on these remains at the time.

## Background

From 2017-2018 Zellner had filed numerous motions with the circuit court. After all her motions were denied Zellner decided to appeal the circuit court's decisions at the Court of Appeals [CoA]. The CoA’s task is to review whether the circuit court handled Zellner's motions properly. As the CoA was awaiting a brief by Zellner for her appeal, Zellner learned of a forensic method that may be able to identify to whom the unidentified burned remains belonged to, if they prove to be human.

## Summary

Zellner learned of a DNA identification technique called ANDE Rapid DNA Identification, a scientific method developed and used by the FBI that can be used to identify bones, even after they've been burned. Zellner believes the method can be applied to the burned remains found in the Manitowoc gravel pit to determine to whom the belong. The technique was succesfully applied in another case, where bones appeared to have been burned to a similar degree. At this point her case was at the Court of Appeals' stage. She asked the Court of Appeals to send her case briefly back to the circuit court, putting her appeal at the CoA on hold while she is back at the circuit court, to request the use of ANDE.

In 2007 the trial court entered an order allowing for future testing of DNA testing in this case.

In a September 2017 meeting between Zellner and the State prosecutors, the parties agreed on a microscopic examination of the pelvic bone from the gravel pit. Before this, Zellner had already filed her "main" motion in June 2017, which was denied in October 2017. Zellner had not yet informed the circuit court of the agreement. With the brief denied, Zellner lost her opportunity to obtain the pelvis (unless she would start a new appeal entirely).

Zellner explains the location of the bones is important. At the time of the trial only the remains found in the Dassey burn barrel and Steven Avery’s burn pit were determined to be human. Zellner alleges this fact was important to the State's claim that Halbach never left the Avery property. Zellner writes that "if the new DNA testing identifies Ms. Halbach's bones in the Manitowoc County gravel pit, two inferences are reasonable, namely, Mr. Avery is not the murderer and the bones recovered from Mr. Avery's burn pit were planted." Zellner also writes that no one "will conclude that, if Mr. Avery murdered and mutilated Ms. Halbach in the Manitowoc County Gravel Pit that he would move her bones to his own burn pit and thereby incriminate himself."

## References

1. ↑ Court of Appeals, *Notification of CoA order*, page 2
2. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 13
3. ↑ 3.0 3.1 Zellner, K., *Motion to Stay Appeal and Remand*, page 4
4. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 5
5. ↑ 5.0 5.1 Zellner, K., *Motion to Stay Appeal and Remand*, page 7