Reply Brief of Defendant-Appellant Steven A. Avery

The ***Reply Brief of Defendant-Appellant Steven A. Avery*** was a brief written on behalf of Steven Avery by his postconviction attorney Kathleen Zellner. It was written in response to the State's *Brief of the Plaintiff-Respondent* from May 2020.

## Background

In 2019 Kathleen Zellner's supplemental motion was denied by the circuit court. Zellner went on to appeal the circuit court's decision on this motion, as well as previous motions, with the Court of Appeals. Zellner filed her appeal brief in 2019. The State followed with a response in May 2020.

For her reply Zellner requested extra time and an increased word limit, which were both granted by the Court of Appeals. On 25 June Zellner announced on Twitter that she had filed her reply brief, tweeting:

“*The Avery Reply Brief has been filed. Will post on our website ASAP. We’re going to win this!!! @MakingAMurderer @TManitowoc @Rookie1082 @lifeafterten @Lilmisty84*”
## Summary

Zellner begins her brief by pointing out that Avery has spent 5,343 days (128,232 hours) behind bars for what Zellner calls his second wrongful conviction and that the State is desperate to keep Avery locked up even longer by raising claims that Zellner argues are erroneous. In dealing with the State's brief Zellner has divided her reply brief in seven arguments:

1. The State is estopped from bringing procedural bar claims;
2. The State's erroneous application of the fundamental principles of postconviction review;
3. Mr. Avery's claims are not procedurally barred;
4. The circuit court erroneously exercised its discretion in denying Avery's late 2017 motions;
5. The State mischaracterizes Mr. Avery's argument regarding trial defense counsel's ineffectiveness;
6. Mr. Avery's *Brady* en *Youngblood* are not barred because they were raised in supplemental motions;
7. Because Mr. Avery's factual allegations must be assumed as true, he is entitled to an evidentiary hearing.

### Argument 1

The State argued many of Zellner's claims were procedurally barred, but Zellner claims that the State is estopped from making procedurally barred claims. Her main reason for making this claim is that Zellner and State attorneys Norm Gahn and Tom Fallon had met in September 2017, before the circuit court denied her June 2017 motion, and agreed to lend Zellner more evidence, such as the RAV4, for scientific testing.

### Argument 2

The State argued that Zellner must affirmatively allege that his facts were sufficiently pled, but Zellner now argues that is not the actual standard. Zellner says the proper standard is the 2004 case *State v. Allen*. Zellner claims she satisfied the standards set in that case in her brief.

### Argument 3

The State said many of Zellner's claims were procedurally barred because they could've been raised in Steven's own 2013 *pro se* § 974.06 motions and Zellner failed to show sufficient reason why these claims could not have been raised earlier, despite saying, without evidence, that Avery is learning disabled and lacking legal training. Zellner disagrees. She writes that Avery's *pro se* motion is evidence of the lack of his capabilities. Avery could not have made the claims Zellner has made, such as the *Brady* and *Youngblood* ones, because of this. Zellner further argues that Avery would not have been able to persuade expert witnesses to assist him.

With regards to the ineffective assistance of counsel claims Zellner insists she must be given an evidentiary hearing on the matter. She believes she has demonstrated a sufficient reason consistent with the case *State v. Escalona-Naranjo*, such as the failure to hire experts.

### Argument 4

The State made the claim that when Zellner mentioned the circuit court's alleged violation of a 2007 Preservation and Testing Order by Judge Willis, was a new argument that did not appear in Zellner's previous filings. Naturally, a Court of *Appeals* cannot rule on arguments never presented before, argues the State. Zellner is of the opinion that a sentence in her 17 November 2017 motion suffices as an argument. The sentence read,

“*The effect of the Court's failure to vacate its October 3, 2017, ruling is that it has unilaterally blocked all future scientific testing in the Avery case, in direct contravention of the April 4, 2007, order entered by Judge Willis.*”
Zellner also responded to the State's disputing Zellner's alleged newly discovered evidence. The State argued that the "new appreciation" of evidence does not constitute actual new evidence. Zellner disagrees. She believes her new findings on, for example, bullet FL and the hood latch swab meet the standard.

### Argument 5

Zellner is of the opinion that her claims regarding trial counsel's alleged ineffectiveness were mischaracterized by the State.

### Argument 6

The State argued that Zellner's *Brady* and *Youngblood* claims were barred because they were raised in successive motions, but at the time of filing the motion they were successive to, the June 2017 motion, had already been denied. The State argues it's not possible to make successive motions to an already denied motion. Zellner argues her motions were not successive, but supplemental (again, to the June 2017 motion) and that they were simply a continuation of the same proceeding.

Where the State argued that Zellner's *Youngblood* claim was insufficiently pled, Zellner argues it is undisputed *Youngblood* was violated and she merely uses the violation to show the State acted on bad faith.

And finally, while the State opined that Zellner failed to show the burned remains from the quarry were exculpatory evidence and instead showed they are “an avenue of investigation that might lead in any number of directions,” Zellner claims that the State misconstrued her argument and points to the affidavit of John DeHaan, a fire expert she had consulted for her June 2017 motion. DeHaan opined that he believed that Avery’s burn pit was not the primary burn site and that a burn barrel could have been the primary burn site. With the burned remains from the quarry now lost Zellner believes she lost an opportunity to match these bones to the bones in the Dassey burn barrel.

### Argument 7

Zellner begins this argument by pointing out that her June 2017 motion was filed pursuant to Wisconsin Statute § 974.06, which requires a hearing unless the motion and the files and records of the action conclusively show that the person is entitled to no relief.

Furthermore, the statute requires that the circuit court hold an evidentiary hearing when the movant states sufficient facts that, if true, would entitle the defendant to relief. In making this determination the court must assume the facts alleged are true. Zellner then provides a multi-page long table listing her alleged facts, including Rahmlow's alleged citing of the RAV4, her claim the the flyover video of the salvage yard was edited to conceal the planting of the RAV4, her claims regarding the Velie CD, and many more.

With all of these arguments presented Zellner respectfully asks the Court of Appeals to grant Steven Avery either a new trial, an evidentiary hearing or to let the State file a response to the Motion for Postconviction Relief and order additional scientific testing as per their September 2017 meeting.

## References

1. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 4
2. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 7
3. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 10
4. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 11
5. ↑ 5.0 5.1 Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 15
6. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 16
7. ↑ 7.0 7.1 Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 18
8. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 20
9. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 21
10. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 24
11. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 25
12. ↑ Kaul, J. and Kumfer, L. *Brief of the Plaintiff-Respondent*, page 112
13. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 26
14. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 29
15. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 30
16. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 32
17. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 33
18. ↑ Zellner, K., *Reply Brief of Defendant-Appellant Steven A. Avery*, page 41