Brief of Defendant-Appellant Steven A. Avery

***Brief of Defendant-Appellant Steven A. Avery*** is a brief by Steven Avery's appellate attorneys Kathleen Zellner and Steven Richards and filed to the Wisconsin Court of Appeals. The brief was filed to appeal the decisions by the circuit court on Zellner's briefs filed from 2016-2019, which were almost all denied.

Because Zellner had stamped the brief rather than providing a written signature the brief was rejected and a couple of days later superseded by the *Corrected Brief of Defendant-Appellant Steven A. Avery*.

## Background

In January 2016 postconviction attorney Kathleen Zellner took Steven Avery’s case following its portrayal in the Netflix documentary series *Making a Murderer*. Later that year she filed a motion to request evidence from his trial and subject them to forensic science not available at the time of the trial. Following her tests Zellner filed her "main" brief, the *Motion for Post-conviction Relief* in June 2017, arguing that ethical violations had been committed by the State, Avery was ineffectively assisted by his attorneys, among other arguments. That motion was denied by the circuit court in October later that year. Though Zellner tried to appeal that decision and sought to introduce new pieces of evidence later on, all her efforts were denied by the circuit court.

In 2019 Zellner appealed the decisions made by the circuit court by filing this brief with the Court of Appeals (CoA). With this brief Zellner requests the CoA the either give her client a new trial, an evidentiary hearing, or revert the October 2017 decision by the circuit court so that the State has to file a response to the June 2017 motion.

On 15 October Zellner wrote on Twitter that she had filed the brief:

“*Avery appellate brief posted on our website http://kathleentzellner.com #MakingAMurderer2 #TruthWins*”
In November that same year, while awaiting the State's response, Zellner said she will prevail:

“*If you think Steven Avery has given up on being freed think again!!! He is surrounded by people who love & support him. We work on his case everyday & we will prevail...you can count on it.!!!! #MakingAMurderer2 #Dream/Killer #TruthWins #lifeafterten*”
In December, also that same year, Zellner referenced her brief/appeal in a tweet about Avery, saying:

“*Talked to Steven Avery yesterday & he is upbeat, optimistic & full of hope that he will win his appeal. Like every innocent person giving up is never an option. #TruthWins #MakingAMurderer2 #MerryXMas*”
Note: Unlike the circuit court the Court of Appeals does not deal with evidence. Where the circuit court evaluates the presented evidence, the Court of Appeals evaluates whether the correct procedures and laws were followed by the circuit court in ruling over the motions.

## Summary

The brief divides its arguments in 10 parts;

1. Five arguments claiming the circuit court abused its discretion;
2. Four arguments claiming the circuit court "erred as a matter of law";
3. One argument claiming Avery provided sufficient reason why some of his arguments could not have been presented in prior motions.

### Arguments

In **Zellner’s first argument** she claims the circuit court abused its discretion when it denied Avery’s motion to vacate the circuit court’s decision to deny Zellner's June 2017 motion. According to Zellner she and the Prosecutors of the case had met in September 2017 and agreed to lend her more evidence for testing, including the Toyota RAV4 and bone material found outside the Avery property, but because the circuit court judge not much later denied Zellner’s "main" motion, the June 2017 *motion for post-conviction relief*, there was no longer any need to lend Zellner the requested evidence. To still get a chance to obtain the evidence Zellner filed a motion asking the judge to reverse her decision, which the judge did not. Zellner argues this is discretion abusement.

In her **second argument** Zellner claims she presented six examples of *Brady* violations committed by the State and they were all dismissed by the circuit court judge and five were left unaddressed. The six alleged *Brady* violations are:

1. A witness stating he saw the RAV4 near Highway 147 before it was officially found;
2. A witness saying investigators believed the RAV4 was driven onto Avery’s Auto Salvage via the quarry;
3. The claim that flyover footage of the Avery’s Auto Salvage property was edited;
4. The claim that investigators withheld a CD containing a copy of the Zipperer family voicemail with a message from Teresa Halbach;
5. A witness stating she spoke with Halbach on the phone in the morning of 31 October 2005;
6. The claim that a CD with files copied from the Dassey computer hard drive was withheld.

Zellner argues that had all this evidence been handed over to the defense they could've made a stronger case at trial; i.e. construct a narrative about the planting of the RAV4 using points #1, #2 and #3 and establish a different timeline for Halbach using #4 and #5. Zellner further argues these alleged *Brady* violations could've introduced Ryan Hillegas as a *Denny* suspect and impeach Bobby Dassey’s testimony.

Zellner believes she sufficiently established the above points as *Brady* violations yet the circuit court addressed just one of the six points.

Zellner, in her **third argument**, claims the the circuit court erred when it failed to address her claim that Avery’s trial counsel was ineffective. According to Zellner, Strang and Buting were ineffective when they did not consult enough expert witnesses. For example, Zellner hired bloodstain pattern expert Stuart James, while Buting and Strang hired no bloodstain pattern expert at all. Zellner hired forensic expertise on matters of DNA and ballistics and Avery’s defense did not. Zellner also argues that Buting and Strang failed to impeach Bobby and failed to establish Halbach's former boyfriend as a *Denny* suspect.

Zellner believes she has met her burden in proving that Avery was inadequately represented by his trial counsel, yet her argument was left unaddressed by the circuit court.

In **argument four** Zellner claims the circuit court erred when it claimed that Zellner should file a *Knight* motion with the Court of Appeals to resolve claims of ineffective assistance of postconviction counsel. Zellner says the circuit court misinterpreted her ineffective assistance claim and that the circuit court assumed it resolved around effectiveness of appellate counsel, whereas it actually resolved around prior postconviction counsel failing to address trial counsel's ineffectiveness.

In her **fifth argument** Zellner claims the circuit court abused its discrtion in dismissing her June 2017 motion without having the State respond or conduct an evidentiary hearing. Zellner claims the *circuit court* was required to give her an evidentiary hearing because she filed her motion under Wisconsin Statute § 974.06. This statute provides that unless the motion (and additional files) conclusively show that the person is entitled to no relief, the court *shall* grant a hearing. The statute requires that the circuit court grants an evidentiary hearing when the movant — Steven Avery — states sufficient facts that if true would entitle the defendant-appellant relief. In making this determination, the court must assume that Zellner's alleged facts are true. Zellner primarily bases this on the 2004 Wisconsin case *State v. Allen*. Zellner concludes that by dismissing Avery's motion without a hearing the circuit court failed to accept the contents of the motion as true.

Also based on *State v. Allen*, Zellner claims that a motion contains enough material facts for an evidentiary hearing if it includes answers to the "who, what, where, when, why" questions. For example, one of Zellner's claims was that Avery's trial defense was ineffective for hiring experts. The "who" in this claim is witness Stuart James, a bloodstain expert hired by Zellner. The "what" is the blood that was allegedly planted in the RAV4, the "where" is inside the RAV4, the "when" is November 5, 2005 and under "why" Zellner refers to a previous case to explain why this witness is important.

In her **sixth argument** Zellner claims that the circuit court erred when it applied the wrong standard to the newly discovered evidence Zellner presented. Previously, Zellner tried to show that the forensic reports attached to her June 2017 motion were conducted using equipment that was not available to Avery's trial defense counsel in 2007. In response to this, the circuit court said that Zellner ignored an important question; were these tests available at the time of Avery's previous motions, such as the one in 2015? In other words, the circuit court says the condition for introducing new evidence is showing that it could not have been introduced before, else the court can wave the alleged new evidence.

Zellner claims the circuit court is wrong and that she did meet the standard for introducing new evidence on appeal.

In **argument seven** Zellner claims that she raised sufficient reason as to why these issues could not have been raised in prior (§ 974.06) motions. The circuit court found that she did not. Zellner claims that the circuit court is, perhaps, misunderstanding the law and is asking the Court of Appeals the clarify on how to interpret the relevant portion of the law.

In her **eighth argument** Zellner writes that she brought forth new arguments and evidence in her motion for reconsideration and the two amendments that the circuit court did not address in her decision. The evidence includes;

* an affidavit of Dean Strang admitting to being ineffective;
* alleged *Brady* violations, including;
	+ a witness claiming to have seen the RAV4 before it was found;
	+ an experiment which demonstrated Bobby Dassey was with Teresa Halbach on the time of her disappearance;
* forensic IT evidence of the Dassey family computer and supporting affidavits.

Though the law states new evidence can not be introduced on appeal, Zellner claims that Avery, through no fault of his own, was never in possession of the evidence and thus couldn't introduce it earlier.

In **argument nine** Zellner argues that the circuit court abused its discretion by ignoring subsequent briefs filed in 2018 related to the Dassey family computer. The circuit court denied a hearing on this matter and therefor the matters contained within the brief remain unsolved.

In her **tenth and final argument** Zellner writes that the circuit court erred in denying her March 11, 2019 motion, a motion in which she alleges the State's failure to preserve evidence. The evidence in question are bones recovered from a quarry adjacent to the Avery’s Auto Salvage property. Zellner discovered that these bones were returned to the Halbach family in 2011, without notifying Steven Avery. Zellner argues this is a violation of Wisconsin's law on evidence preservation.

Zellner further argues that she discovered the bones were identified as human, but that Avery's trial defense didn't know that they were. Had they known they could've used that in their argument that the burn pit was not the primary burn site.

## State’s response

*see also: Brief of the Plaintiff-Respondent*
After several delays the State filed its response in May 2020, and stated that the Court of Appeals should affirm the circuit court’s decisions on all presented arguments.

## References

1. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page 132
2. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, pages i-iv
3. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, pages ii-iv
4. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page iii
5. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page 65
6. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page 68
7. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page 90
8. ↑ Zellner, K., *Brief of Defendant-Appellant Steven A. Avery*, page 97
9. ↑ 9.0 9.1 Zellner, K., *Brief of Defendant-Appellant Steven A. Avery*, page 99
10. ↑ Zellner, K., *Brief of Defendant-Appellant Steven A. Avery*, page 107
11. ↑ Zellner, K., *Brief of Defendant-Appellant Steven A. Avery*, page 110
12. ↑ Zellner, K., *Brief of Defendant-Appellant Steven A. Avery*, page 111
13. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page 120
14. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page 122
15. ↑ 15.0 15.1 Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page 122
16. ↑ Zellner, K., *Corrected Brief of Defendant-Appellant Steven A. Avery*, page 124
17. ↑ Kaul, J. and Kumfer, L., *Brief of the Plaintiff-Respondent*, page 2