Memorandum Decision and Order (October 2017)

The ***Memorandum Decision and Order*** is a brief filed by Circuit Court judge Angela Sutkiewicz in which she shared her decision on Zellner's 2017 motion. The judge's decision was that the **motion was denied**.

## Background

In June 2017 Zellner filed her *Motion for Post-conviction Relief*. Roughly four months after the motion was filed the Judge ruled on the motion.

## Summary

Avery had previously filed a motion for relief persuant to Wisconsin Statute § 974.06. Avery raised numerous claims, including claims like ineffective assistance of counsel against Dean Strang and Jerome Buting, raising doubts about the discovery of the bones in the burn barrel and whether a tire was burned in the burn barrel. This motion was denied on 19 November 2015.

Avery appealed this decision to the Court of Appeals, but shortly after requested DNA testing on evidence from his trial. The prosecution agreed to give the requested evidence, and when the reports came in Avery filed a second motion persuant to Wisconsin Statute §974.06. After filing the motion Avery moved the Court of Appeals to dismiss this appeal, which was granted on 24 August 2017. The original decision in the first motion remains of record.

### Response to Zellner's motion

Sutkiewicz summarizes that Zellner offers many arguments regarding new scientific testing, the competency of Buting and Strang, the quality of the police investigation, the ethics of the prosecutor, and *Brady* violations with respect to evidence not delivered to trial counsel.

Zellner argues that many of the forensic tests she conducted were unavailable to Avery's trial counsel, but she ignores an important question: were the tests available during Avery's previous motion pursuant to Wisconsin Statute §974.06? Or any of the other appeals or motion filed after trial?

About Zellner's claims about ineffective counsel, the most extensive portion of his motion, the Judge writes that she, as a judge of the Circuit Court, is not authorized by statute to resolve claims of ineffective assistance and advices Zellner to file to the Court of Appeals.

### Hood latch DNA argument

The Judge summarizes Zellner's argument: Zellner raised three arguments stemming from DNA testing. One argument asserts that Avery could not have left his DNA on the hood latch of the victim's car by simply touching it. Testing showed that only 11 out of 15 individuals left DNA on a similar vehicle, thus the report concludes that it is highly unlikely that Avery's touch left DNA on the hood latch.

The Judge responds: Zellner's argument leaves out several significant facts. Four test subjects did leave detectible DNA by touch and contrary to Zellner's assertions the test of the DNA on the hood latch does not rule out Avery's hand as the source of the DNA. The report actually declines to make such a claim, noting that the matter could become subject of further, non-DNA, investigation.

### Car key DNA argument

The Judge summarizes Zellner's argument: Zellner alleges that the DNA on the Toyota RAV4 valet key did not come from blood or touch, but was planted using a DNA rich source like a toothbrush. Zellner also alleges that the fact that the key was a spare key increases the likelihood of the DNA being planted. Finally, test results show that the amount of debris on the key suggest it wasn't used on a daily basis.

The Judge responds: there is no question the key was Halbach's. Even if the key was a subkey and the debris suggests a non-regular use, that is not evidence of planting DNA. There is no evidence that the key found in Avery's trailer was not used on the 31st of October. Furthermore, the affidavit provided states that the debris can vary for a number of reasons. Though Zellner suggests a toothbrush may have been used, she submitted no evidence other than her own conclusory allegations.

### Item FL argument

The Judge summarizes Zellner's argument: testing results prove that the bullet, item FL, did not pass through bone, as it would have if it had entered the victim's skull. Avery also argues that the report proves that the red substance on the bullet was not blood, but paint.

The Judge responds: the report is not that clear cut. The expert, Palenik, says that the tests used on the bullet does not rule out there is bone material. Further analysis is needed to find out whether there is or isn't bone on the bullet. Furthermore, though Zellner claims the red substance is or may be paint, the report indicates that the tests performed cannot determine what the red substance on the bullet is and that further testing is needed.

The reports do no support the defendant-appellants position.

### Conclusion

The reports/affidavits submitted by Zellner do not establish an alternate interpretation of the evidence. It cannot besaid that there exists a reasonably probably that a different result would be reached at a new trial based on these reports.

## References

1. ↑ 1.0 1.1 *Memorandum Decision and Order*, page 1
2. ↑ 2.0 2.1 2.2 2.3 *Memorandum Decision and Order*, page 2
3. ↑ 3.0 3.1 *Memorandum Decision and Order*, page 3
4. ↑ 4.0 4.1 4.2 4.3 *Memorandum Decision and Order*, page 4
5. ↑ 5.0 5.1 5.2 5.3 5.4 *Memorandum Decision and Order*, page 5
6. ↑ *Memorandum Decision and Order*, page 6