Decision and Order

The 2019 ***Decision and Order*** was a brief by circuit court judge Angela Sutkiewicz and contained her response to and decision on the various motions filed by Steven Avery’s postconviction attorney Kathleen Zellner’s about the State’s alleged violation of the law on evidence preservation (§ 968.205) and the issue of the bones from the quarry being returned to the Halbach family in 2011 without Avery’s consent.

## Background

In February 2019 the Court of Appeals allowed Zellner to return to the circuit court to file a new motion, which would focus exclusively on her claim that the State of Wisconsin violated Wisconsin Statute § 968.205 and Steven Avery's constitutional rights pursuant to the ruling in *Youngblood v. Arizona*. This allegedly occurred when the State returned previously unidentified burned remains from the quarry adjacent to Avery's property to the Halbach family without notifying Avery.

## Summary

In both her February 2019 motion and her March 2019 supplemental motion Zellner addresses that Statute § 968.205 gives the State a duty to preserve **all** biological evidence of the case, and that it violated the statute by not doing so. The circuit court cites the statute in its decision and order as follows:

“*Except as provided in sub. (3), if physical evidence that is
in the possession of a law enforcement agency includes any
biological material that was collected in connection with a
criminal investigation that resulted in a criminal
conviction...and the biological material is* from a victim of
the offense *that was the subject of the criminal investigation
or may be* reasonably used to incriminate or exculpate *any
person for the offense, the law enforcement agency shall
preserve the physical evidence until every person in
custody as a result of the conviction...has reached his or her
discharge date.*”
The circuit court says the first clause of the statute does not apply to the matter at hand. Contrary to what Zellner claims, not *all* biological evidence needs to be preserved, but only the biological evidence of Teresa Halbach. The burned remains that were given to the Halbach family were never conclusively identified as belonging to a human being, or any specific individual.

In response to Zellner's claim that the State violated the statute when it gave the bones to the Halbachs without notifying Avery, the circuit court writes there is no dispute that the bones were given to the Halbachs without the statutorily required notice.

About Zellner's claim that due to the violation Zellner lost material that could possibly have exculpated Avery for the offense, the circuit court points out that in order to succeed on this argument, the evidence in question must be reasonable able to be used to exculpate Avery or incriminate someone else for the offense. Evidence does not have apparent exculpatory value if analysis would have provided an avenue of investigation that might have led in any number of directions. The circuit court points out that Zellner concluded that the quarry materials were, in fact, human remains. Zellner's evidence for this was a police report from September 2011 which details the process of returning the bones in question, which were described as human in a report by forensic anthropologist Leslie Eisenberg. The circuit court remarks that it is not specified which document of Eisenberg was being used. It further explains that Eisenberg submitted her final report in December 2006 and that she gave testimony on February 28, 2007 and March 1, 2007. In neither of those did Eisenberg state that any bones recovered from the quarry were human.

Other evidence that Zellner provided in support of this was her theory that the State apparently acknowledged the quarry bones were Teresa Halbach's *because* they had given them to the Halbach family. In response to this theory the circuit court writes that even *if* those involved in returning the quarry bones believed the bones were the victim's, their belief would not be founded in science or any final evidence produced in this case. They would be acting on unfounded belief, rather than the required reasonable belief.

The circuit court concludes that neither Eisenberg nor the FBI were able to conclude that the burned remains in the quarry were human or that they belonged to the victim. Therefor, it cannot be said that law enforcement was aware of any potentially exculpatory value of the quarry bones when they gave them to the Halbachs, as there is no science in support of this. The circuit court notes that there was also a largely unburned bone recovered from the quarry and that this fact does not support Zellner's claim that the victim was burned there and later moved to Avery's property.

## References

1. ↑ 1.0 1.1 Sutkiewicz, A. W., *Decision and Order*, page 5
2. ↑ Zellner, K., *Motion to Stay Appeal and Remand* (2019), page 16
3. ↑ Zellner, K., *Supplemental § 974.06 Motion*, page 20
4. ↑ Sutkiewicz, A. W., *Decision and Order*, page 6
5. ↑ 5.0 5.1 Sutkiewicz, A. W., *Decision and Order*, page 7
6. ↑ Sutkiewicz, A. W., *Decision and Order*, page 8
7. ↑ 7.0 7.1 Sutkiewicz, A. W., *Decision and Order*, page 9
8. ↑ Sutkiewicz, A. W., *Decision and Order*, page 11
9. ↑ Sutkiewicz, A. W., *Decision and Order*, page 13
10. ↑ Sutkiewicz, A. W., *Decision and Order*, page 14