Memorandum Decision and Order (November 2017)

The ***Memorandum Decision and Order*** was the Judge's response and decision on Kathleen Zellner's four briefs written in response to the Judge's earlier decision to deny Zellner's post-conviction motion.

## Summary

Steven Avery, through his attorney Kathleen Zellner, submitted his "main" brief, the *Motion for Post-conviction Relief* in June 2017. The motion was denied by the Circuit Court on 3 October 2017. Subsequently Zellner filed two motions and a number of supplements. The Circuit Court denies all the requests in these briefs.

### Response to motion for relief from judgement

Zellner first filed a motion for relief from judgement. In that motion Zellner asserts that in September 2017 she and the State had reached an agreement to lend Zellner more evidence from the trial that she could subject to more modern scientific tests. Zellner asked the court for relief from judgment so the agreement could be carried out.

The Judge notes that Zellner filed her motion complete with supporting attachments on 7 June 2017 and no further communication was made by Zellner indicating that the motion was incomplete and would be supplemented. Only after the Judge decided to deny the motion did Zellner finally alert the Judge that she was working on additional evidence for her arguments.

Zellner asserts that agreements were made between her and the prosecution regarding the release of more evidence from the trial so she can subject them to testing. Again, the Judge was not notified of this until after her ruling. It is up to the Court and not to Zellner or other parties involved to decide if amendments to previous filings are permitted. Furthermore it is up to the Court and not to Zellner or other parties involved to establish schedules for matters pending before it. Though cooperation between the parties is to be encouraged, agreements should have been submitted to the Court for approval prior to the final decision.

Zellner can not amend a motion only after it was denied. The motion for relief from judgement is denied.

### Response to motion for reconsideration

The Judge notes that in the numerous filings after the *motion for relief from judgement* Zellner submitted a substantial amount of what she calls newly discovered evidence. That characterization is incorrect. What is missing is any explanation as to why Zellner filed her motion on 7 June 2017, knowing that it was not yet complete and that investigation was still being conducted. The case *Escalona-Naranjo* states clearly that all grounds for relief must be raised within the motion unless good cause is shown as to why the issue was not included in the original filing.

Zellner submitted her motion before all scientific testing was completed, and Zellner has not shown a good reason why she filed her motion prior to the conclusion of all testing. Knowing that all the facts were not ready for presentation to the court, Zellner proceeded to file the motion prematurely.

In her numerous filings Zellner makes it abundantly clear that she knew she had substantial investigation to complete before it had a full picture of all the evidence that the Court needed to consider. Zellner has no deadline, yet rushed ahead to file the motion before it was completed.

The motion was at the Court for roughly four months and all this time Zellner did not request the Court to give her extra time to supplement the motion, or take other action to delay the final decision.

### Response to alleged manifest errors

Zellner asserts that the Judge committed manifest error when she did not find that Avery was entitled to an evidentiary hearing. The Judge explains that Zellner was correct in stating that Wisconsin Statute § 974.06 require that the Circuit Court hold an evidentiary hearing when the movant states sufficient material facts that, if true, would entitle to Defendant-Appellant to relief. However, the Judge quoted Zellner's experts in saying that they could not reach definitive conclusions without further testing. Without such conclusions the reports are speculative and are without the necessary facts.

A motion to reconsider is not the appropriate manner for the Court to consider new arguments based on additional arguments. These arguments should have been asserted in the "main" motion. The motion for relief and reconsideration are denied.

## References

1. ↑ 1.0 1.1 *Memorandum Decision and Order*, page 1
2. ↑ 2.0 2.1 2.2 2.3 2.4 *Memorandum Decision and Order*, page 2
3. ↑ 3.0 3.1 3.2 3.3 3.4 *Memorandum Decision and Order*, page 3
4. ↑ 4.0 4.1 4.2 4.3 *Memorandum Decision and Order*, page 4
5. ↑ *Memorandum Decision and Order*, page 5