Brief of the Plaintiff-Respondent

***Brief of the Plaintiff-Respondent*** is a brief by the State written in response to Kathleen Zellner's *Corrected Brief of Defendant-Appellant Steven A. Avery* from October 2019.

## Background

In 2019 Steven Avery’s postconviction attorney Kathleen Zellner had filed a Supplemental § 974.06 Motion for Post-conviction Relief with the circuit court, arguing, among other things, that the State had violated Wisconsin law, section 968.205 - a section on preservation of evidence. Later that year the circuit court denied Zellner’s supplemental motion. Zellner went on to appeal this decision, as as well as previous decisions by the circuit court with the Court of Appeals.

The State twice requested extra time to write their response brief, arguably because of the large variety of topics and amount of other cases cited in Zellner's brief, and also requested to extent the word limit. All three requests were granted by the Court of Appeals. The requests triggered Zellner to comment on Twitter, tweeting:

“*Avery:16 days until the State brief is due. Expecting to hear the sound of another deadline as it goes WHOOSHING by... #MakingAMurderer2*”
In May 2020 the State filed its response.

## Summary

Responding to Zellner's 2019 brief the State divided it's reply brief into six sections

1. In the first section the State argues that the circuit court properly denied Zellner's June 2017 motion without holding an evidentiary hearing.
2. In the second section the State argues the circuit court properly denied Zellner's October 2017 motion for relief.
3. In the third section the State argues the circuit court properly exercised its discretion when it denied Avery's October 2017 motion for reconsideration and supplements.
4. In the fourth section the State argues the circuit court properly exercised its discretion when it denied Avery's May 2018 motion to introduce the Velie CD.
5. In the fifth section the State argues the circuit court properly exercised its discretion when it denied Avery's March 2019 supplemental motion.
6. In the sixth and final section the State argues the Court of Appeals lacks jurisdiction to review Avery's motion to compel discovery.

The State points out that, although Zellner worked with the term "abuse of discretion", the term was abolished more than two decades ago in favour of "erroneous exercise of discretion".

### Argument 1

By far the largest portion of the brief (61 pages) is dedicated to the State's first argument, that the circuit court properly denied Avery's June 2017 motion without an evidentiary hearing.

In the June 2017 motion Zellner introduced a number of arguments of which the State says they are procedurally barred because Zellner failed to show why these claims could not have been raised in previous motions. One explanation Zellner has given was that Avery himself has a lack of legal knowledge and cognitieve deficiencies, but the State points out no deficiencies were specified and no facts, other than Zellner spending a lot of money on the case, were supplied in support of this.

With regards to Zellner's claim that previous postconviction counsels were ineffective, the State argues this allegation was insufficiently pled and meritless. According to Zellner postconviction counsels were ineffective because they did not raise an ineffective assistance of trial counsel claim. Zellner further argues that Buting and Strang were ineffective because they did not pursue their "planted evidence" narrative in the way that Zellner did and because previous postconviction counsel did not pick up on that they were ineffective. The State says this is a fundamental misunderstanding of what is required to show ineffective assistance of counsel.

For example, Zellner claims Buting and Strang were ineffective because they did not hire forensic anthropologist Steven Symes. However, they did hire another forensic anthropologist who specialized in burned remains, which was Dr. Scott Fairgrieve. An attorney is not ineffective for hiring one qualified expert over another, argues the State.

**State's response to scientific testing in 2016 and 2017**

Zellner presented ineffective assistance of counsel claims and newly discovered evidence claims based on 2016 and 2017 scientific testing performed on evidence such as Bullet FL, the hood latch DNA and the Toyota RAV4 key.

In its response the State explains that when a defendant seeks a new trial based on alleged new evidence the defendant must show four prongs:

* the evidence was discovered after trial;
* the defendant was not negligent in seeking to discover it;
* the evidence is material to an issue in the case;
* the evidence is not merely cumulative.

If all four criteria are clearly and convincingly met then the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial.

The State is of the opinion that Zellner's DNA-testing related claims met none of the four prongs. For example, about Bullet FL, Zellner wrote that a new microscope from 2016 (thus unavailable to previous counsels) was used to examine the bullet. Using this microscope no bone material was discovered on the bullet and Zellner said this refuted the State's theory that Halbach was shot in the head by this bullet. The State, however, points out that Zellner's own motion refutes that this evidence was unknowable at the time of trial, because her expert Lucien Haag claimed that William Newhouse's microscopic examination would have revealed bone particles on bullet FL during Newhouse's examination at the time of trial.

Furthermore, the State argues that microscope analysis was available at Avery's trial and that Zellner simply mentioned the manufactury date but did not explain that the technology itself advanced in any way since the bullet was examined for trial.

The State makes a similar argument about Avery's experiment holding an exemplar key in his hand to measure the DNA he leaves on it. The science of measuring DNA quantities was already available at the time of his trial.

Finally, the State argues that Zellner failed to show a reasonable probability of a different result at trial and that some of her tests would actually favour the State's case. The State shares several examples, one of them being the tests and arguments surrounding the hood latch DNA that she performed with expert Karl Reich. Zellner conducted a test where individuals touched the hood latch of an exemplar RAV4 but noted that they only left DNA on about 26% of the occasions and whenever they did leave DNA it was significantly lower than the amount Avery had left. The State pointed to the controlled, non-stressfull low-exertion conditions in which the experiment was conducted and that Zellner's experiment cannot account for many variables that could've led to Avery depositing more DNA, thus it does not undermine the case against Avery.

Zellner claimed that the hood latch swab never touched the hood latch, but instead was a swab from Avery's groin that lead investigator had stolen from a bin in a medical centre. This groin swab was simply relabeled as a hood latch swab. The State counters that this scenario has no factual basis, that Zellner simply tried to undermine the "good faith" of police officers and then apparently concluded that this supplied the factual support for any nefarious scenario. According to the State Zellner has also misrepresented Reich's affidavit. At no point did Reich state the groin swab was relabeled. Reich specifically opined that no evidence, or evidence reassignment, was proven.

The State also responded to Zellner's claims about the car key. Zellner discovered that the car key was actually a sub-key, not a main key, but the State says that doesn't establish it was planted. Moreover, her employer testified that Halbach was misplacing her keys all the time. Saying the key was a sub-key would not have gotten Avery a different verdict.

### Argument 2

The State believes that the circuit court properly exercised its discretion when it denied Zellner's October 2017 motion for relief from judgement or order. This motion was filed after the circuit court had denied Zellner's June 2017 motion. Zellner argued that she intended to supplement the June 2017 motion and had even met with the State prosecutors and reached an agreement to lend her more evidence for testing, including the RAV4. However, she did not notify the circuit court that her June 2017 motion was basically incomplete and that the circuit court should not rule on it until it is amended or supplemented, until the motion was denied.

The State argues this is solely the fault of Zellner. She could've contacted the circuit court at any time, informing them an amendment was coming. She did not. The circuit court wrote that Zellner "cannot try to amend a motion that was filed without reservation only after [she] received an adverse ruling", which the State describes as a reasonable decision.

About Zellner claiming that the State violated the 2007 court order by not reopening her June 2017 motion the State says, besides arguing that this is incorrect, that this argument was never brought up to the circuit court and therefor forfeited.

### Argument 3

The third argument is about Zellner's other October and two November 2017 supplements. They were all denied by the circuit court, but Zellner argues the circuit court did not properly excercise its discretion in doing so. The State disagrees with Zellner, arguing the circuit court applied the correct laws and gave a rational explanation for denying the motion.

In the motions Zellner presented, what she calls, new evidence. The State argues, however, that new evidence "does not include the new appreciation of the importance of evidence previously known but not used." The circuit said it's not "new" because Zellner should have and could have presented this evidence in her June 2017 motion. What was missing was any explanation why she hadn't done so.

The State says Zellner just lists some things she investigated after her June 2017 motion and calls it "new evidence", but the State explains that evidence previously known also includes evidence that was "knowable" by counsel. Evidence such as affidavits of Dean Strang, Bryan Dassey and others, or the discovery of the content on the Dassey computer are not new evidence, because they could've been obtained earlier.

Finally, the State argues Zellner insufficiently pled her *Brady* claims about Denise Coakley and Kevin Rahmlow and that they are meritless. Zellner did not show these affidavits are material and they contain too many speculative leaps. The State also argues it's not new evidence.

### Argument 4 (CD and Dassey pc)

The fourth argument responds to Zellner's arguments about the Velie CD, as presented in her July 2018 motion. Zellner argued that the State violated *Brady* because it never gave him a CD containing material that was copied from the hard drive of the Dassey family computer by a certain Detective Mike Velie in 2006. Zellner claimed the CD could have been used at trial to allege Bobby committed the murder. Zellner also argued that a full copy of the Dassey computer hard drive was disclosed to Avery's team too late to be of effective use.

The State argues that to prevail on a *Brady* claim the defendant must prove three prerequisites:

1. The evidence in question must be favourable to the accused;
2. The evidence must have been suppressed, meaning the defendant received it too late to be of use at trial, or did not receive it at all;
3. The evidence in question must be material (it must be shown that a different outcome at trial could’ve been attained with the evidence in question);

According to the State, Zellner failed to establish any of these three.

The State explains that the Velie CD contained material copied from the Dassey family computer’s hard disk drive. A complete copy of this hard disk drive was stored on seven DVD’s and all of these seven DVD’s were given to the defense.

The State points out that Zellner’s own IT expert, Gary Hunt, said that the contents of the CD originally come from the seven DVD’s, which Zellner acknowledged the defense did receive. Zellner does not point to files she did not receive.

The State says it made the defense aware of the contents, because it had written a report about it and shared that report with the defense. The report also mentions the CD and where it was stored. E-mail conversations between prosecution and defense about the computer investigation prove the defense was aware of it, argues the State.

According to the State the defense received the DVD’s in time because their own investigation into the computer lasted 16 days. The defense received the DVD’s 26 days before they filed their *Denny* motion and 49 days before trial.

With regards to prerequisite #3 the State points out that though Zellner explains the Velie CD is material because it could have been used to impeach Bobby Dassey's testimony at trial, she does not explain *how*. The fact someone watches violent pornography does not diminish one's credibility, argues the State.

Though Zellner claims Bobby Dassey meets the requirements to be a *Denny* suspect (meaning he can now be officially introduced as a possible suspect of the murder) the State argues that she did not. The State further argues that even if Denny is established here, Zellner did not show how or why it would have affected the trial outcome. Bobby, for example, was already mentioned as the real killer in the trial’s closing argument, that he too had a .22 rifle, among other things.

### Argument 5 (quarry bones)

The State argues the circuit court properly exercised its discretion when it denied Avery's March 2019 supplemental motion. The State summarizes the proceedings on this issue as follows:

* Avery claimed law enforcement violated the law on evidence preservation when it returned bone material located in a quarry adjacent to the Avery property to the Halbach family, thereby effectively destroying evidence.
* Because of this Avery can no longer subject these bones to postconviction DNA testing.

The circuit court responded that the quarry bones were tested by a forensic anthropologist who had made a report in December 2006 detailing which bones were considered human, at that point in her analysis, and which were nonhuman. It was this report that was used by some individuals involved in releasing the material to determine which bones were to be released.

At trial the forensic anthropologist qualified the findings in her report saying that none of the bones in the quarry could definitively be identified as human. The FBI confirmed that the bones could not be tested for DNA nor be identified as human. The circuit court concluded there was no scientific record to support Avery's claim that human material was returned to the Halbach family, which the State argues is a reasonable inference.

**State’s counter-argument A**
The State argues that Avery's claim is procedurally barred because Avery could have raised this claim in earlier motions, such as his June 2007 motion. By attempting to investigate the quarry bones, which Avery could have done at any time, he would have learned of the bones' disposal.

The State further argues that even if Avery had not attempted to look into the quarry bones he could have learned of their disposal early 2018. In April 2018 Zellner's private investigator obtained various documents from the Calumet County Sheriff’s Department, and among them was a report detailing the returning of the bones to the Halbach family. Because this report was obtained before Zellner filed her July 2018 motion, which means Zellner *could* have learned of its disposal before she filed the motion, means the claim is procedurally barred.

Finally, the State argues Zellner did not show sufficient reason why she was not able to raise this issue earlier.

**State’s counter-argument B**
Besides claiming the issue is procedurally barred, the State argues that Zellner cannot raise a claim such as this in a Statute § 974.06 motion. According to the State a motion filed under section 974.06 is limited to jurisdictional and constitutional issues. An alleged statutory violation is beyond the scope of a § 974.06 motion.

The State further argues that, contrary to what the circuit court said, Zellner's claim that the law on evidence preservation (§ 968.205) was violated is without merit. The law states that biological material that is of the victim or that could be used to incriminate or exculpate any person of the offence should be preserved. Not that all biological material needs to be preserved. The State argues that it preserved the evidence that meets the criteria as described in the statute.

**State’s counter-argument C**

The State points out the case *Youngblood versus Arizona*, which is a case that Zellner has frequently referred to to show how this case dealt with the evidence preservation statute, was not about post-trial destruction of evidence, but pre-trial destruction of evidence. In other words, in *Youngblood* the trial attorneys were robbed of an argument because the evidence for that argument was destroyed. In Avery's case that is not the case. Avery's trial attorneys did have these bones available to them and they were part of their argument at trial.

Additionally there are quarry bones that may or may not be human still in evidence and available for testing.

The State says Avery has failed to meet his burden in showing that the bones are exculpatory to him. Instead, he has shown that the bones are an avenue of investigation that might lead in any number of directions.

### Argument 6

Zellner's complains that the circuit court never ruled on her motion to compel, filed in July 2018. The State finds that she doesn't really make an argument about it, but that she appears to lament that this issue is unresolved. The State says the Court of Appeals lacks jurisdiction to review arguments about this motion.

## See also

* *Motion for Post-conviction Relief* - Kathleen Zellner's main motion from June 2017
* *Memorandum Decision and Order* - Circuit Court's ruling on the June 2017 motion
* List of briefs and responses filed during Zellner’s appeals
* List of affidavits for Zellner’s appeals

## Notes

1. ↑ For example one of the requirements for Denny is to prove Bobby had motive and Zellner claims the violent pornography on the family computer shows such motive. The State, however, says Zellner failed to show why violent pornography in this case would’ve given Bobby a motive to murder Halbach.

## References

1. ↑ Kaul, J. and Kumfer, L., *Brief of the Plaintiff-Respondent*, page 1
2. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 11
3. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 12
4. ↑ 4.0 4.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 25
5. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 35
6. ↑ 6.0 6.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 56
7. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 57
8. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 53
9. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 58
10. ↑ 10.0 10.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 59
11. ↑ 11.0 11.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 61
12. ↑ 12.0 12.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 62
13. ↑ 13.0 13.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 73
14. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 72
15. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 76
16. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 77
17. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 79
18. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 78
19. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 83
20. ↑ 20.0 20.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 84
21. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 86
22. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 88
23. ↑ 23.0 23.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 89
24. ↑ 24.0 24.1 24.2 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 90
25. ↑ 25.0 25.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 92
26. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 91
27. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 94
28. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 96
29. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 99
30. ↑ 30.0 30.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 102
31. ↑ 31.0 31.1 31.2 31.3 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 103
32. ↑ 32.0 32.1 32.2 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 104
33. ↑ 33.0 33.1 Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 105
34. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 111
35. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 112
36. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 115