2021 Court of Appeals decision

front page of the CoA decision

The ***Court of Appeals Decision*** is the decision by the Wisconsin Court of Appeals on Steven Avery’s postconviction attorney Kathleen Zellner’s appeal against the decisions of the circuit court to deny all of Zellner's motion filed on Steven Avery’s behalf.

## Background

Zellner picked up Avery’s case about January 2016 following its portrayal in the documentary-series *Making a Murderer*, which released on Netflix few weeks prior. Later that year Zellner obtained evidence from Avery's 2007 trial and hired experts to submit the evidence to new, more advanced testing methods and technology unavailable in 2007. In June 2017 Zellner filed her "main" motion, the motion for postconviction relief, presenting the results of her experiments, as well as presenting claims of ineffective assistance by Avery's previous attorneys and *Brady* violations. That motion was denied in October 2017. Zellner tried to argue against the decision through several motions, all of which were denied later that same year.

Through 2018 to 2019 Zellner continued submitting motions, most notably to request the presiding judge to leave the case, to introduce a CD to the evidence record and the discovery of bones recovered outside the Avery property having been returned to the Halbach family. All of these motions were denied by the circuit court. Zellner decided to appeal all these decisions and filed a brief with the Court of Appeals in 2019. The case was fully briefed in 2020 and was handed over to the Court of Appeals in November 2020.

In April 2021 Zellner filed a Motion to Stay Appeal and Remand with the Court of Appeals. She had obtained an affidavit of a man who claimed he saw Bobby Dassey push the RAV4 towards the salvage yard. Because this is new evidence never presented to the circuit court, and the Court of Appeals only deals with arguments that were presented to the circuit court, Zellner asked the Court of Appeals to remand her case back to the circuit court. The State filed a reply in opposition.

On 27 July 2021 Zellner wrote on Twitter:

“*Tomorrow the appellate court announces its decision in Steven Avery’s case. We are hoping justice prevails but regardless of the outcome our quest never ends until Steven is free.*”
On the 28th the Court of Appeals released their decision online. That same day Zellner tweeted,

“*Not deterred by the appellate court decision—-it pointed out the specific doors that are still open for Mr. Avery’s quest for freedom. We appreciate the careful review.*”
## Summary

A recurring issue in Kathleen Zellner’s appeal has been whether her claims could have been raised before during motions previously filed in this case, or not. If a claim could've been raised during any previous motion the claim is procedurally barred (absent a good reason). This is a procedural bar that Zellner has to overcome for many of her claims. This procedural bar is often referred to as ***State v. Escalona-Naranjo***, or simply ***Escalona-Naranjo*** (a 1994 case which set the standard for the issue). The rest of this article will also refer to the issue as *Escalona-Naranjo*.

For example, Zellner raised an issue on the bullet recovered from Avery’s garage; which was that her expert after microscopic examination found no bone fragments on the bullet’s surface. The expert believes there should’ve been bone fragments if the bullet had been fired through bone material.

However, back in 2006~2007 that same bullet was *already* microscopically examined by State firearm expert William Newhouse. At trial, neither the State nor the defense raised this issue, but that does not mean the issue itself was not available to make. It was “knowable” and “available”. Thus, the issue becomes procedurally barred.

Issues that appear to be procedurally barred may still be allowed on appeal, if a good reason for failing to raise them earlier is given. With regards to the bullet and the lack of bone fragments Zellner explained that, among other reasons, the issue could not have been raised in previous motions because her expert used a microscope that was manufactured in 2016. Obviously, a microscope manufactured in 2016 was not available in 2013 or 2011, when previous motions were filed.

However, even though Zellner gives the year the microscope was manufactured, she does not explain why that made the issue “unknowable” or "undiscoverable” to the defense in 2007. She leaves that for the courts to answer. Zellner may argue that the 2016 model is “better” than the one used in 2006~2007. Even so, if a “better” model can't find bone fragments, then a lesser model used in 2006~2007 couldn't have either. Thus, the whole issue was knowable, available, or discoverable in 2007.

### Motion #1: June 2017 motion

*see also: Motion for Post-conviction Relief*
In her *Motion for Post-conviction Relief* Zellner gave four main arguments, which were:

1. Ineffective assistance of trial counsel;
2. *Brady* violations;
3. Newly discovered evidence;
4. Ethical violations of Ken Kratz.

The fourth issue was absent from Zellner's brief to the Court of Appeals, meaning it is abandoned and thus not discussed.

#### **Ineffective assistance**

Zellner argued that Avery was ineffectively assisted by his trial defense, but recognizing *Escalona-Naranjo* she argues that Avery's postconviction counsel (ret. 2011) was ineffective for not raising that issue. However, Avery also represented himself in his *pro se* motion from 2013. Zellner argues Avery could not have raised this claim because he has a learning disability and the case is complex, among other reasons.

The Court of Appeals finds Zellner's reasons mostly deficient, bar one exception, which is that Avery, in his current situation, could not have carried out the investigation Zellner has done, nor could he have hired experts. Considering this, the following claims remain as to why Avery's trial defense was allegedly ineffective:

1. Failure to present a blood spatter expert;
2. Failure to present a trace material expert;
3. Failure to present a DNA expert;
4. Failure to present a forensic fire expert.

The Court of Appeals, however, finds that each argument Zellner delivered with regards to the above four claims fails on the merits, and presents numerous arguments for each. A selection:

* With regards to #1, Zellner asserts that the blood on the rear cargo door of Halbach's RAV4 was the result of Halbach being bludgeoned there, but the Court of Appeals notices the absence of an explanation as to why Avery could not have done this.
* With regards to #2, Zellner presented that she had uncovered that the key found in Avery's bedroom was a subkey, not the main key. The Court of Appeals finds it speculative that such a fact indicates evidence tampering.
* With regards to #3, the Court of Appeals finds, among other arguments, that Zellner is misrepresenting her experts findings and that hers are “more ambigious”. Where Zellner says her expert said the DNA on the RAV4 key was planted, the expert did not actually say such a thing. The Court of Appeals also observes that the expert seemingly was not present when Zellner did a DNA quantity test on the key with Avery.
* With regards to #4 the Court of Appeals noted that Avery's trial defense did in fact had a forensic fire expert who disagreed with the State's experts on key points, yet his testimony did not help Avery at trial.

The Court of Appeals notes that Zellner “wholly failed” to demonstrate that trial counsel's representation fell below an objective standard of reasonableness and that she failed to show that a different result would've been obtained at trial if her findings would've been allowed.

#### ***Brady* violations**

*see als: Brady violation*
Zellner presented several *Brady* violation claims, but according to the Court of Appeals she has not overcome the procedural bar of *Escalona-Naranjo* for any of them. According to the Court of Appeals all of Zellner's *Brady* allegations are thus procedurally barred.

Furthermore the Court of Appeals says the *Brady* claims don't meet the three criteria to establish a *Brady* violation. For example, Zellner claimed that investigators believed, but did not disclose, that Halbach's RAV4 was driven on the Avery’s Auto Salvage property via the south-western entrance and that this finding supports the idea that the cops framed Avery for murder. The Court of Appeals calls this argument “unintelligible” and not a *Brady* violation, because there was no evidence to suppress here.

#### **Newly discovered evidence**

The Court of Appeals finds Zellner's claims based on alleged newly discovered evidence “largely irrelevant”. Zellner claimed that her evidence showed that, contrary to what the State said at trial, bullet FL did not deliver the fatal wound to the head. The Court of Appeals notes that the State did not argue that FL entered Halbach's skull or killed her and that it was not necessary to do so to implicate Avery in her murder. The existence of a bullet with Halbach's DNA is “particularly damning evidence”, says the Court of Appeals, and strongly implicates Avery in the murder. Zellner's findings are described as consistent with the State's theory of the crime.

About the hood latch swab claims the Court of Appeals noted that Zellner misrepresented her experts claims on the matter and that it wouldn't have contributed to a different result at trial.

#### **Conclusion**

The Court of Appeals **affirms** the circuit court's decision to deny the motion and cites the circuit court in calling Zellner's conclusions “equivocal” and “ambigious”. The Court of Appeals says they gave Zellner the benefit of the doubt as to why the claims were not raised earlier, but even considered on the merits the Court of Appeals finds the claims speculative, conclusory and in some cases misleading.

### Motion #2 first October 2017 motion

*see also: Motion for Relief from Judgment or Order of October 3, 2017*
After the June 2017 motion was denied Zellner filed a motion asking for relief from judgment three days later. She explained that one month prior to the circuit court's decision she had met with the State prosecutors and an agreement was made that she could get additional items for testing, including the RAV4 and some items found within it, and that she could amend her June 2017 motion with the results.

The circuit court denied the motion, because Zellner could've communicated the above with the circuit court, but she never did. The circuit court acknowledged the September '17 meeting might very well have taken place, but noted that Zellner failed to ask the circuit court for approval on the agreements or even inform the circuit court it had taken place at all. The circuit court also said it is for the court, and not the parties, to determine amendments to filed motions can be made.

The Court of Appeals agrees with the circuit court and **affirms** the circuit court's decision to deny the motion. It notes that Zellner seems to acknowledge the above basic principles of postconviction procedure. Zellner, however, also argued that by denying the motion the circuit court ignored the existence of a 2007 order on preservation of blood evidence and independant defense testing, which allows the preserved items for independant testing “without further order of this court”.

The Court of Appeals says that Zellner's argument with respect to the 2007 order “misses the mark entirely”. According to the Court of Appeals the circuit court correctly concluded it was not required to revisit the decision on the June 2017 motion after being belatedly informed that an amendment was desired.

### Motion #3: October and November 2017 motions

*see also: Defendant Steven Avery’s Motion for Reconsideration, Amended Supplement to Previously Filed Motion For Reconsideration, Second Amended Supplement to Previously Filed Motion For Reconsideration*
Following the denial of her June 2017 motion Zellner filed a motion to reconsider and several supplements. Zellner alleges that newly discovered evidence warrants the courts reconsideration of the courts denial of the June 2017 motion.

The Court of Appeals notes that such a motion is not a platform “to introduce new evidence that could have been introduced” as part of the original proceeding. The term “newly discovered” does not only mean it was unknown at the time of the denial, but also that it couldn't have been known - it wasn't reasonably discoverable. The Court of Appeals opines Zellner didn't show why she couldn't have presented the evidence earlier.

The Court of Appeals **affirms** the circuit court's decision to deny the three motions.

### Motion #4: July 2018 supplemental motion

*see also: Motion to Supplement Previously Filed Motion for Post-conviction Relief*
Zellner claimed that a *Brady* violation had been committed by the State by keeping a CD containing data originating from the Dassey family computer, from Avery's defense. The State disagreed, explaining no data was suppressed because everything that was on the CD was also on seven DVD's that was handed over to the defense.

The Court of Appeals agrees with the State. It notes that it is undisputed that the Dassey family computer was examined and its contents copied to seven DVD's. It is undisputed that Avery's defense received these DVD's prior to trial. Finally, it is undisputed that, with limited and irrelevant exception, the CD does not contain data that isn't already on the seven DVD's.

The Court of Appeals points out that Zellner actually seems to acknowledge all these facts on appeal, but argues that the defense should have had access to the few differences on the CD (for example, images refined for relevancy). The Court of Appeals says this is not the law.

According to Zellner the CD could've been used at trial to impeach Bobby Dassey, who she calls the State's “star witness”. The Court of Appeals agrees that Bobby’s testimony - he saw Teresa arrive and head towards Steven Avery’s trailer, but did not see her leave - helped the State's case, but without it the State had numerous and significant other evidence implicating Avery for a crime committed on his property.

### Motion #5: March 2019 supplemental motion

*see also: Supplemental § 974.06 Motion for Post-conviction Relief*
In 2019 Zellner filed a motion claiming the State destroyed biological evidence in bad faith. The premise of the motion is that the State released to Halbach's family evidence that was either apparently or potentially exculpatory: burned bone remains from the quarry pit may have been Teresa Halbach's. The Court of Appeals notes that at trial the undisputed testimony of forensic anthropologist Leslie Eisenberg was that, after further analysis, the burned remains in the quarry were not definitively identified as human, much less belonging to Halbach. Therefor, the burned remains from the quarry are not apparantly exculpatory.

Zellner frequently used the *Youngblood vs. Arizona* case as an example (*Youngblood* was another case dealing with destruction of biological evidence), however the Court of Appeals note that Zellner's example case says that “evidence is not “apparantly exculpatory” where those having custody over it did not know of its exculpatory value and the evidence “was simply an avenue of investigation that might have led in any number of directions”.

Even if the burned remains in the quarry were proven to be Halbach's, the Court of Appeals notes that Zellner does not explain the significance of such a fact. The apparent conclusion is that if those bones were Halbach's, then Avery is innocent. However, Zellner never explains why Avery himself would not have been able to drop some of the remains in the quarry, which lies adjacent to his property.

Finally, the Court of Appeals says that Zellner cannot show the State acted in bad faith; the Halbach family requested the quarry bones for purposes of its own, but that does not vest the fragments with evidentiary value.

### Motion #6: April 2021 motion

*see also: Motion to Stay Appeal and Remand*
In April 2011 Zellner filed a new motion presenting eye-witness testimony of a man who claimed he had seen Bobby Dassey and an unidentified older male push Teresa Halbach's Toyota RAV4 towards the Avery’s Auto Salvage business. Zellner asked the Court of Appeals to send her case back to the circuit court, so she could present her new witness there (because a Court of Appeals cannot judge on matters never presented to the circuit court).

The Court of Appeals **denies** Zellner's request to remand her case back to the circuit court. The Court of Appeals notes that the motion arrived while their decision was already forthcoming, that it would be an inefficient use of court resources to, again, delay the appeal's resolution, and that the claim itself bears little or no relation to the claims that were already presented to them through Zellner's 2019 brief.

If Zellner wishes to raise the claim, the Court of Appeals writes, she can file a new Wisconsin Statute § 974.06 motion with the circuit court. However, she must overcome the procedural bar of *Escalona-Naranjo*. The Court of Appeals also noted Avery's appeal cannot continue indefinitely.

## See also

* List of briefs and responses filed during Zellner’s appeals

## References

1. ↑ *Court of Appeals Decision*, page 8
2. ↑ *Court of Appeals Decision*, page 11
3. ↑ *Court of Appeals Decision*, page 12
4. ↑ *Court of Appeals Decision*, page 15
5. ↑ 5.0 5.1 5.2 *Court of Appeals Decision*, page 16
6. ↑ *Court of Appeals Decision*, page 18
7. ↑ 7.0 7.1 *Court of Appeals Decision*, page 19
8. ↑ *Court of Appeals Decision*, page 20
9. ↑ *Court of Appeals Decision*, page 21
10. ↑ *Court of Appeals Decision*, page 22
11. ↑ 11.0 11.1 *Court of Appeals Decision*, page 23
12. ↑ *Court of Appeals Decision*, page 24
13. ↑ 13.0 13.1 *Court of Appeals Decision*, page 26
14. ↑ 14.0 14.1 14.2 *Court of Appeals Decision*, page 27
15. ↑ *Court of Appeals Decision*, page 28
16. ↑ *Court of Appeals Decision*, page 29
17. ↑ 17.0 17.1 *Court of Appeals Decision*, page 30
18. ↑ 18.0 18.1 *Court of Appeals Decision*, page 31
19. ↑ 19.0 19.1 *Court of Appeals Decision*, page 38
20. ↑ 20.0 20.1 20.2 *Court of Appeals Decision*, page 39
21. ↑ *Court of Appeals Decision*, page 41
22. ↑ *Court of Appeals Decision*, page 42
23. ↑ 23.0 23.1 *Court of Appeals Decision*, page 44
24. ↑ 24.0 24.1 24.2 *Court of Appeals Decision*, page 45
25. ↑ 25.0 25.1 25.2 *Court of Appeals Decision*, page 47
26. ↑ *Court of Appeals Decision*, page 46