Defendant-Appellant’s Motion to Stay Appeal and Remand

***Defendant-Appellant’s Motion to Stay Appeal and Remand for Petitioner to File a Supplemental Post-conviction Motion Disclosing New Evidence of a Brady Violation and a Third-Party Denny Suspect*** is a motion filed by Steven Avery’s postconviction attorney Kathleen Zellner on 12 April 2021. Zellner presents a new witness who says he saw Bobby Dassey plant the Toyota RAV4 on 5 November 2005. Zellner claims Manitowoc County Sheriff’s Department was aware of this, but committed a *Brady* violation by withholding the evidence from the defense. Zellner asks the Court of Appeals to remand this case back to the circuit court, while the appeal stays, so she can present this new evidence in a supplemental post-conviction motion.

The motion was filed while Zellner was waiting for the Court of Appeals to decide on her *Brief of Defendant-Appellant Steven A. Avery*.

## Background

The motion was filed while awaiting the decision of the Court of Appeals on Zellner's previous motion, which was first filed in 2019, fully briefed in June 2020 and presented to the Court of Appeals in November 2020. In October 2020 Zellner indicated on Twitter that her investigation for the Avery case was on a hiatus, as she said,

“*We are waiting for the Wisconsin Appellate Court to issue an opinion on all pending issues in Steven’s case. Until then there is nothing to update.*”
On December 26, 2020, a witness had e-mailed Kathleen Zellner after he watched season 2 of *Making a Murderer*. The witness, Thomas D. Sowinski, claimed he saw Avery’s nephew Bobby Dassey push the RAV4 towards Avery’s Auto Salvage “a few days before” it was officially discovered. Zellner started an investigation on 1 April and had Sowinski sign an affidavit on 10 April.

The following day Zellner said on Twitter,

“*Tomorrow you will find out who really planted Teresa Halbach’s RAV4 on the Avery Salvage Yard. #TruthWins #MysterySolved*”
The motion was filed the next day.

## Summary

Zellner's motion centers around the affidavit of alleged new witness Thomas D. Sowinski, who was a paper deliverer at the Avery’s Auto Salvage and surrounding area in 2005. Sowinski claims that on Saturday 5 November 2005 “before sunrise” he drove over Avery Road and witnessed two individuals pushing a dark blue RAV4 in the direction of the Avery property. After Sowinski delivered the papers on the Avery property he drove back over the same road and when he came near the two men, one of them attempted to step in front of Sowinski's car to block him from leaving the property. Sowinski dodged the individual by swerving into the ditch, shouting “Paperboy. Gotta go!”

Sowinski at some point realized that the individual who jumped in front of him was Bobby Dassey. He described the other individual as being in his 50's or 60's and having a long beard.

After Sowinski learned that the RAV4 was found on Saturday 5 November 2005, he realized the importance of what he saw. He contacted the Manitowoc County Sheriff’s Department and spoke to a female officer. Sowinski claims he told her everything he stated in the affidavit. The female officer said “We already know who did it.” and Sowinski never heard back from her.

Zellner claims this affidavit is evidence of a *Brady* violation (the prosecution withholding evidence from the defense) because Sowinski's report was never handed over to Avery's defense. The defense could've used Sowinski to attack Bobby Dassey's credibility and to establish that Bobby was involved in the murder of Teresa Halbach.

## Response(s)

### State of Wisconsin’s response

The State filed its reply, titled ***Response in Opposition to Avery’s Fourth Petition to Stay This Appeal and Remand This Case to the Circuit Court*** four days later, on 16 April 2021.

The State argues that staying the appeal and remanding the case to the circuit court would further unnecessary delay a case that has been going on for five years already. The State advises that if Avery wants to pursue another new claim the appropriate course is to wait until the current appeal is concluded, conduct a reasonable investigation and then file a new “main” motion. Or just dismiss the current appeal to pursue the new evidence now.

The State also addresses that it's an attorney's duty to conduct some investigation into the claims of an alleged new witness, especially when the witness comes forth so late and after an award of $100,000 has come on offer for a lead such as this one. The State points out Zellner’s motion does not show any investigation has been conducted. Instead, it obtained an affidavit on April 11 and filed a motion on April 12.

The State further argues that Avery has filed six motions alleging claims that all could have been raised in his first “main” motion. According to the State Zellner has ignored and attempted to circumvent a law that states no new evidence can be raised on appeal by continually labeling his successive motions “supplemental”, despite the fact that his previous motions were denied, thus could not be supplemented.

Finally, the State argues Zellner has presented claims and submitted evidence that she reasonably should know cannot all be true, has leveled unjustified accusations of bad faith against the State and has materially misrepresented the record. The State concludes by advising the Court of Appeals to deny Avery’s petition.

### Zellner’s response

   In response to the State’s response brief, filed on the 22nd, Zellner replied that she did conduct an investigation. She reviewed the e-mail that Sowinski had sent her, checked his job history, asked the Manitowoc County Sheriff’s Department for recordings of phone calls on Thursday 3 November, compared Sowinski’s statement with her own research and had her personal investigator check Sowinski’s background. Zellner introduced new evidence in her reply brief, such as two e-mails sent by Sowinski; one in 2016 and another in 2020, evidence of Sowinski’s job and address at the time and evidence of e-mail contact between Zellner and Manitowoc County Sheriff’s Department regarding phone conversations on 3 November.

Zellner concludes her reply by requesting the Court of Appeals to remand the case back to the circuit court while staying the appeal.

### Further filings

On 27 April the State filed a motion requesting to strike Zellner’s reply to the State’s response. According to the State the law doesn't state Zellner can reply to a response brief. If granted, this means that Zellner’s reply brief and its contents and attachments are basically non-existent and that the State's claim that there are no indications of any investigation being done on Sowinski is left unrebutted.

The next day Zellner filed a motion asking for leave so she can again file her reply brief. Zellner argues the State made claims in its response brief that she believes deserve a response because according to Zellner they're not true.

## Notes

* In the *Motion to Stay Appeal and Remand* Zellner claims a *Brady* violation has been committed. A *Brady* violation means that the State withheld evidence from the defense that the defense could’ve used at trial to their benefit. This evidence is Sowinski’s alleged phone call. However, in her motion Zellner does not state when the phone call was made and if the phone call was made before the trial.
* Zellner’s evidence shows Sowinski made some changes to his statement over the years. Initially he claimed he saw two people push the vehicle "somewhere between 31 October and 5 November" while he was doing paper delivery before "get[ting] his son ready for school" (thus a weekday). In December 2020 the story changed to "a few days before the RAV4 was found" (thus not later than Thursday 3 November) and in April 2021 Sowinski claimed he witnessed this event on Saturday 5 November, during paper delivery.
* In Sowinski’s 2016 e-mail he did not name any of the two people who were pushing the RAV4. He first mentioned the name Bobby in his 2020 e-mail, which he wrote after watching *Making a Murderer* season 2.
* In his affidavit Sowinski stated he told everything that is in the affidavit to the female officer on the phone. But since his story apparently changed over the years, which story did he tell the female officer?

## References

1. ↑ *Court of Appeals Decision*, page 47
2. ↑ Zellner, K., *Reply to the State’s Response to Motion to Stay Appeal and Remand*, page 33
3. ↑ Zellner, K., *Reply to the State’s Response to Motion to Stay Appeal and Remand*, page 34
4. ↑ 4.0 4.1 4.2 Zellner, K., *Motion to Stay Appeal and Remand*, page 9
5. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 4
6. ↑ Kaul, J. and Kumfer, L., *Response in Opposition to Avery’s Fourth Petition to Stay This Appeal and Remand*, page 7
7. ↑ Kaul, J. and Kumfer, L., *Response in Opposition to Avery’s Fourth Petition to Stay This Appeal and Remand*, page 20