Motion to Stay Appeal and Remand (2019)

***Defendant-Appellant’s Motion to Stay Appeal and Remand the Cause For Proceedings on Claims For Relief in Connection With the State’s Violation of Wis. Stat. § 968.205 and* Youngblood v. Arizona** is a 2019 motion by Steven Avery’s attorney Kathleen Zellner. In the motion Zellner claims that the State of Wisconsin violated Wisconsin Statute § 968.205, a law on the preservation of biological evidence.

## Background

In 2018, after the circuit court had denied each of Zellner's motions, Zellner went to appeal the circuit court's decisions with the Court of Appeals [CoA]. While her case was at the CoA, waiting for her brief, Zellner discovered a new forensic scientific method that may be capable of obtaining DNA from the unidentified burned remains from the quarry. Zellner requested in December 2018 the CoA to put her appeal on hold so she could return to the circuit court and file a motion on this matter, but the request was denied later that same month.

In the meantime, Zellner learned of a previously undisclosed police report from September 20, 2011, which is a report about the Calumet County Sheriff’s Department’s transfer of multiple suspected possible human bones—tags 7411, 7412, 7414, 7416 and 7419—from the Manitowoc County gravel pit (sometimes referred to as "quarry"). At the time, Steven Avery was being represented by public defenders Suzanne Hagopian and Martha Askins. One of Zellner's clerks contacted the two attorneys, who told him they don't recall seeing this report and that they believed they would be able to recall it, had they seen it.

## Summary

Zellner argues that when Calumet County Sheriff’s Department returned unidentified burned bone material to the Halbach family, they violated Wisconsin Statute § 968.205, a statute on evidence preservation and that they acted in "bad faith" when they did so.

One of Zellner's arguments to support this is that the State returned the burned remains during the pendency of Avery's direct appeal (Avery's direct appeal began in 2007, but was denied in January 2010. He appealed at the Court of Appeals, but the CoA affirmed the decision on 24 August 2011. Then, Avery had 30 days to appeal the Court of Appeals decision. 27 days later, 3 days shy of the 30 day limit, the burned remains were returned). Zellner argues that not notifying Avery, through his attorneys, of the transfer of the bones is a violation of statute 968.205.

Zellner writes that "[a]t the most basic level, the state bears a duty to preserve all biological evidence collected during the course of an investigation that leads to a conviction." Zellner argues that returning the burned remains is a violation of statute 968.205.

Zellner writes that "every violation of the statutes constitutes 'bad faith' as defined by *Youngblood* and *Greenwold*"

## References

1. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 6
2. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 5
3. ↑ 3.0 3.1 Zellner, K., *Motion to Stay Appeal and Remand*, page 7
4. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 1
5. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 20
6. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 8
7. ↑ 7.0 7.1 Zellner, K., *Motion to Stay Appeal and Remand*, page 9
8. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 16
9. ↑ Zellner, K., *Motion to Stay Appeal and Remand*, page 15