Defendant Steven Avery’s Motion for Reconsideration

The ***Defendant Steven Avery’s Motion for Reconsideration*** is a motion by Steven Avery's attorney Kathleen Zellner in which she asked the Circuit Court judge Angela Sutkiewicz to reconsider its decision to deny Zellner's June 2017 motion.

## Background

In June 2017 Zellner filed her *Motion for Post-conviction Relief*, but it was denied by the Circuit Court Judge four months later, who wrote that Zellner was overstating her expert's claims and that Zellner failed to show there could be a different outcome if there would be a new trial.

Zellner replied with *Motion for Relief*, explaining to the Judge that more evidence was on its way, but she just hadn't notified the Judge yet in the four month gap between the two briefs. The Judge's response to that motion was still pending when Zellner filed this motion for reconsideration.

## Summary

Zellner summarizes in 10 bullet points why Avery was convicted and claims that her June 2017 motion refuted all those 10 points in "the unrebutted affidavits of seven experts". She then gives "three of the more blatant examples of the falsity of the State's forensic evidence":

1. That Avery would've had to open the hood latch 90 times to deposit the amount of DNA left on it.
2. Avery left 10x less DNA on an exemplar key than what the Wisconsin State Crime Lab detected on the RAV4 car key.
3. Bullet FL is devoid of bone particles.

Note that in the Judge's response she wrote that the expert Zellner hired to examine the bullet did not claim the bullet was devoid of bone particles.

In the Motion for Reconsideration Zellner claims she has uncovered new evidence and attacks the Judge, claiming she committed manifest errors:

The new evidence Zellner presents is:

* Various pieces of evidence related to Bobby Dassey, such as:
	+ Bobby allegedly giving false testimony at trial about seeing Halbach and the RAV4;
	+ Bobby, with Scott Tadych, giving false testimony about being each other's alibi;
	+ Bobby viewed images of Halbach, violent pornography and dead bodies of young women on the family pc;
	+ Bobby, not Avery, set up the original appointment with *AutoTrader* to photograph Barb Janda’s red van;
* Ryan Hillegas had taken Teresa Halbach’s “day planner” out of her RAV4 after the murder.

### Alleged manifest errors

Zellner provides several examples of what she believes constitute a manifest error.

1. The Judge did not accept Zellner's allegations in her June 2017 Motion as the truth

Zellner believes she should've gotten an evidentiary hearing because the June 2017 Motion was a motion filed pursuant 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 bases this on the 2004 Wisconsin case *State v. Allen*. Zellner concludes that by dismissing Avery's motion without a hearing the Judge failed to accept the contents of the motion as true. Zellner goes on to provide examples of other cases that are, according to her, similar.
Next, Zellner attacks a question the Judge raised in her decision, which was “*However, the defendant-appellant's arguments ignore an important question — were the tests [in the June 2017 motion] available at the time of the defendant-appellant's previous motion pursuant to Wis. Stats §974.06 or any of the other appeals or motions filed after trial*.” Zellner claims that this shows that the Judge ignored the fact that she relied on technology developed since the 2007 trial (thus, in turn, Zellner is ignoring that the Judge's question was not about the trial, but about the motions and appeals thereafter). Zellner concludes that the Judge misapplied the standard for introducing new evidence.
1.1. The Judge committed manifest error when it dismissed expert opinion on item FL.
Zellner points out that item FL, the bullet from Steven Avery’s garage, was examined using a microscope from 2016 and that this instrument was thus not available at the 2007 trial. Zellner once again explains that according to her the State presented this to the Jury as a bullet that entered and exited the victim's skull. Zellner writes that her expert opines that the bullet was not shot through the victim's skull. Zellner blames the Judge for pretending to know about forensic science instead of accepting this astounding fact and grant an evidentiary hearing.
Zellner claims that the Judge misunderstood Dr. Palenik's affidavit when she stated, “*the tests used on the bullet are not inclusive to the point of discovering all particles present on the bullet surface.*” Zellner writes that when Dr. Palenik examined the entire bullet, he identified all observable particles on it.
1.2. The Judge committed manifest error when it dismissed expert opinion on hood latch DNA.
Zellner next attacks the Judge's statement that Dr. Reich did not rule out that the hood latch DNA could've been left by sweat from Avery's hand. Zellner had Reich sign a second affidavit in which he states that "there is no test, assay, measurement or analytical method that can identify sweat as a body fluid" and that sweat itself does not contain DNA. It can, however, carry skin cells, which do have DNA.
Zellner also attacks the Judge's statement that Dr. Reich declined to state that Avery's hand was ruled out as the source of the DNA, explaining that Avery would have to touch the hood latch 90 times to get the amount of DNA that the State recovered.
1.3. The Judge committed manifest error when it dismissed expert opinion on the RAV4 key.
Zellner writes that the Judge improperly disputed the opinions of her expert Dr. Reich. Zellner also writes that the Judge has ignored Dr. Reich's testing of an exemplar key and that the amount of DNA recovered from Halbach's key could not have left by Avery simply touching the key. Zellner also points out that the Judge interpreted Avery's toothbrush scenario as a "conclusary allegation", which Zellner says it is not. Instead Zellner merely asserted that Avery did not see his toothbrush on a crime scene photo taken from his laundry room/shower room. Zellner claims the Judge is not allowed to dispute such assertions at this stage of the proceedings.
2. The Judge held that it is not allowed to rule on the ineffective assistance claims

Zellner claims that the Judge misinterpreted the argument. Zellner claims the Judge interpreted the allegations as Avery saying his appellate attorneys were ineffective. Rather, Avery avers that his attorneys were ineffective in their post-conviction capacity. Zellner agrees that the proper proceure for the former is not via the Circuit Court Judge but via the Appellate Court. However, in the latter's case the Circuit Court Judge is authorized to make a decision.
3. The Judge held that Avery failed to show sufficient reason why his claims could not have been raised in prior motions.

Zellner offers that the Judge may have focused too much on the ineffective assistance of counsel claims and forgot the *Brady* violation claims.
### Introduction of new evidence

Zellner introduces more alleged new evidence.

* **Evidence that destroys the State's theory that Halbach didn't leave Avery's property.**
Zellner states a witness had come forward who claims he saw Teresa's RAV4 at the turnaround near the East Twin River Bridge in Mishicot. The witness claims he disclosed this information to Manitowoc County Sheriff’s Department Sergeant Andrew Colborn at a gas station in Mishicot.

* **New evidence that Avery was denied effective assistance of trial defense counsel and post-conviction counsel regarding Bobby Dassey.**
   Zellner states that Bobby Dassey's testimony at Avery's trial was critical to the State's case. Therefor it would be important for Avery's defense to investigate him so that they could impeach or undermine him. Zellner writes that the defense failed to do so. Her evidence is an affidavit by Bryan Dassey who claims Bobby told him he saw Halbach leave. This contradicts Bobby's trial testimony and could've been used at trial to impeach and undermine Bobby's testimony.

* **The State knowingly used false testimony to ensure Avery's conviction**
Zellner claims the State knew Bobby's testimony was false because they were aware of Bryan's statement about Bobby. Zellner also claims that the testimony of Ryan Hillegas, Halbach's friend and former boyfriend, was false because he testified he was in Halbach's room on 3 November and another friend of Halbach's, Kelly Pitzen, was as well. Yet, Hillegas tried to call Pitzen. Zellner claims they would not have called each other if they were in the same building. Zellner concludes that because of this evidence Hillegas' whereabouts on the evening are unaccounted for.

* **New evidence establishes that Bobby Dassey and Scott Tadych were at the same location as Halbach when she recieved her last call**
Using an expert videographer Zellner recorded a video depicting Zellner's version of events: Halbach arrived at Avery's, within minutes completed her photoshoot and received payment by Avery at her car, and then left. Bobby was waiting for her to leave, then rushed to his vehicle and drove after her. He caught up with her near the intersection of Highway 147 and County Road Q. She was assaulted and murdered at the Kuss Road cul-de-sac. According to Zellner, Scott Tadych at some point joined the assault. Zellner lists a number of evidence in support of this theory, such as a 2:41 p.m. phone call to Halbach's phone being forwarded to Halbach's voicemail (Zellner believes this was done manually by Halbach, though it can also be done automatically when the receiver doesn't pick up) and scent dogs tracking Halbach's scent to the cul-de-sac.

* **Images of Halbach, images of violent pornography and images of dead bodies recovered from Dassey computer**
Zellner writes that her IT expert Gary Hunt examined the Dassey family computer and found numerous images of violent pornography involving young females being raped and tortured, and images of injured females, including a decapitated head, bloodied torso, etc. Zellner says many of these females look like Halbach. Although the computer has only one user account, Zellner writes that the relevant searches occurred during times when only Bobby Dassey was home. Zellner writes that another expert of her wrote that "Bobby was becoming obsessively deviant in his viewing of violent pornography". This should have allerted law enforcement to Bobby as someone having an elevated risk to perpetrate a sexually motivated crime.

* **Evidence of a *Brady* violation concealing Ryan Hillegas' connection to the crime**
   Zellner claims that it is undisputed that Ryan Hillegas obtained a “day planner” from Halbach's vehicle *after* the murder. In support of this claim she provides two affidavits of people who talked with Halbach on the phone on the day of the murder and who both said she wrote something down and was driving her car. The “day planner” contains a note on one of these conversations. Between the last conversation and the first known appointment Halbach had no time to take the “day planner” to her home. So if it was in her car during these phone calls, it must've been in her car as well when she began with her three appointments and thus at the time of the murder. Later, Hillegas had this “day planner” in his possession and handed it to the police.

Zellner concludes that based on all her above raised arguments Avery is entitled to an evidentiary hearing.

## Notes

1. ↑ MaM Wiki notes: Zellner may have misunderstood the *Judge's decision*. The judge *did* respond to arguments based on tests that were not available in 2007. It waived arguments that were based on tests that *were* available in 2007 or Avery's appeals in 2011 and 2015.
2. ↑ MaM Wiki notes: Zellner may again have misunderstood the Judge's decision. Measuring the quantity of DNA is not "new" science. This science was available in 2007 and during Avery's previous appeals.

## References

1. ↑ *Motion for Reconsideration*, page 2
2. ↑ *Motion for Reconsideration*, page 3
3. ↑ 3.0 3.1 *Motion for Reconsideration*, page 4
4. ↑ *Motion for Reconsideration*, page 5
5. ↑ *Motion for Reconsideration*, page 7
6. ↑ *Motion for Reconsideration*, page 8
7. ↑ 7.0 7.1 7.2 *Motion for Reconsideration*, page 10
8. ↑ *Motion for Reconsideration*, page 11
9. ↑ *Motion for Reconsideration*, page 14
10. ↑ *Motion for Reconsideration*, page 15
11. ↑ *Motion for Reconsideration*, page 16
12. ↑ *Motion for Reconsideration*, page 18
13. ↑ *Motion for Reconsideration*, page 19
14. ↑ *Motion for Reconsideration*, page 23
15. ↑ *Motion for Reconsideration*, page 31
16. ↑ *Motion for Reconsideration*, page 32
17. ↑ *Motion for Reconsideration*, page 33
18. ↑ *Motion for Reconsideration*, page 37
19. ↑ *Motion for Reconsideration*, page 39
20. ↑ 20.0 20.1 *Motion for Reconsideration*, page 42
21. ↑ *Motion for Reconsideration*, page 44
22. ↑ 22.0 22.1 *Motion for Reconsideration*, page 46
23. ↑ *Motion for Reconsideration*, page 47
24. ↑ *Motion for Reconsideration*, page 48
25. ↑ *Motion for Reconsideration*, page 49