2021 Petition for Review

first page of the petition

***Petition for Review*** is a petition by Steven Avery's attorney Kathleen Zellner to the Supreme Court of the State of Wisconsin.

## Background

After the Wisconsin Court of Appeals [CoA] denied Kathleen Zellner's appeal in July 2021 Zellner was left with few options. Zellner could file a petition for reconsideration with the CoA within 20 days, she had 30 days to file a petition for review with the Wisconsin Supreme Court, or she could do neither and return to the circuit court with her Sowinski affidavit.

On 26 August 2021 Zellner tweeted,

*We have filed our Petition for Review with the Wisconsin Supreme Court in Steven Avery’s case.*
And included a link to her petition.

## Summary

Zellner writes that she raises three issues on which the Supreme Court of Wisconsin's guidance is needed.

### Issue I

Zellner believes she sufficiently pled her ineffective assistance of counsel claim and doesn't agree with the Court of Appeals' decision to respond to only seven arguments of her ineffective assistance arguments. Zellner also believes that the Court of Appeals failed to consider the cumulative effect of her arguments.

In the petition Zellner takes several jabs at the Court of Appeals, claiming that they "grossly misinterpreted" certain facts. For example, Zellner claims that the Court of Appeals misinterpreted the State's arguments about Item FL when they wrote that "the State did not argue that this specific bullet entered Halbach's skull or killed her". Zellner writes this is false. Zellner believes that the Court of Appeals held Avery to a higher pleading standard than other cases.

### Issue II

The second issue is primarily about the Velie CD, the CD containing some of the lugubrious material that was also found on the Dassey family computer. Zellner questions whether the withholding of such a CD should require an evidentiary hearing to determine if a *Brady* violation has occurred. Zellner believes the circuit court should've granted an evidentiary hearing on this matter. The circuit court didn't and the Court of Appeals affirmed the circuit court's decision.

Zellner also questions whether forensic findings contained on the CD, which wasn't given to the defense, constitutes "suppressed evidence". The circuit court and Court of Appeals did not consider it suppressed, because even though the CD itself was withheld, the files stored on the CD were shared via a different copy.

### Issue III

The third issue is primarily about the burned bones found in the quarry adjacent to the Avery property that were given away to the Halbach family in 2011, effectively "destroying" the evidence (or rather the potentially evidentiary value they may or may not have had).

Zellner writes that the Wisconsin law on evidence preservation does not require that DNA on that biological evidence is tested and comes back as belonging to a person subject to the case if it is already known who that biological evidence belongs to. Zellner argues that it is already known that the quarry bones were Halbach's and that the Court of Appeals (and earlier the circuit court) were wrong when they determined the bones' origin was indeterminate, as per Eisenberg's testimony.

Zellner also writes that the Supreme Court should find that a violation of the law on evidence preservation should automatically constitute to bad faith. Near the end of her argument she writes that Avery could not have been the one who burned any of the bones found in this case because the jury had acquitted him of mutilating a corpse

## Conclusion

The Wisconsin Supreme Court denied the petition on 17 November 2021. Following the Wisconsin Supreme Court's decision, Zellner had the option to file with the United States Supreme Court, but when de deadline expired in February 2022, she had not filed with them, effectively ending her entire case that began in 2016. Zellner can still file motions on Avery's behalf, but no longer as part of this now concluded process. Arguments and evidence used for the 2016-2021 case can also not be used again, absent a good reason. This excludes the arguments made in her April 2021 motion, because the CoA denied her request to return to the circuit court to include the motion in the 2016-2021 case.

## Notes

* The Wisconsin Supreme Court denied the petition on 17 November 2021.
* Following the Wisconsin Supreme Court's decision, Zellner had 90 days to seek review by the United States Supreme Court. In an interview on ABC News this is an option Zellner had seemed to consider. Ninety days later, in mid-February 2022, Zellner had not filed with the US Supreme Court.

## References

1. ↑ Supreme Court and Court of Appeals Access, State v. Steven Avery, Appeal Number 2017AP002288
2. ↑ 2.0 2.1 Zellner, K., *Petition for Review*, page 7
3. ↑ 3.0 3.1 Zellner, K., *Petition for Review*, page 12
4. ↑ Zellner, K., *Petition for Review*, page 14
5. ↑ Zellner, K., *Petition for Review*, page 19
6. ↑ Zellner, K., *Petition for Review*, page 24
7. ↑ 7.0 7.1 Zellner, K., *Petition for Review*, page 25
8. ↑ Zellner, K., *Petition for Review*, page 26
9. ↑ Zellner, K., *Petition for Review*, page 29
10. ↑ TAP, "Court hands 'Making a Murderer' subject Avery latest defeat". *ABC News*. November 18, 2021.