Motion for Post-conviction Scientific Testing

The ***Motion for Post-conviction Scientific Testing*** was a 2016 motion written by Steven Avery's attorney Kathleen Zellner in which she requested the State to release pieces of evidence from Avery's 2007 trial to her and her team so that they could subject them to further scientific testing. Zellner believed that during the nine years since Avery's trial forensic science had advanced and that with it she may find something that could prove her client's innocence.

The motion was filed on 26 August 2016. Before the judge had ruled on the motion, however, Zellner filed a stipulation because she and the State had already agreed to release some evidence.

## Background

In December 2015 *Making a Murderer* was released on Netflix and the documentary series had caught the eye of Kathleen Zellner. Zellner, who was no stranger to the Avery case, began to actively talk about the case on Twitter and in January 2016 it became known she was already representing Steven Avery. Eight months later she filed her first motion, a motion to request the release of items of evidence so she can subject them to new or improved scientific testing, unavailable in 2007.

## Summary

Zellner requests a long list of items of evidence to be released for scientific testing, writing that Steven Avery's conviction was solely the result of forensic science performed on evidence recovered from his property - the crime scene. Zellner says that with new and advanced forensic techniques her clients' conviction could be overturned. Zellner writes that by wanting to do such extensive testing a guilty person would risk conclusively establishing his guilt.

Zellner writes that she already had Avery complete a series of tests, which she will mention in her future motion and is requesting the evidence from the trial for additional testing. She asks for the release of a long list of items, 49 in total, so they can be subjected to types of new or improved testing. Additionally, Zellner wants to do a fingerprint comparison with the fingerprints of Manitowoc County Sheriff’s Department officers Andrew Colborn and James Lenk and the unidentified fingerprints in the RAV4.

The types of testing, that were unavailable to Avery's 2007 trial defense counsel, are:

* New DNA Testing and Source Testing
Zellner writes that more sensitive forensic DNA techniques have been developed that can get sufficient DNA for profiling from certain sources. For example there was DNA found on the license plates of the RAV4, but the crime lab was unable to obtain a full DNA profile from it back in 2005. It might be possible to get a full DNA profile with the new DNA testing. Additionally, Zellner writes about a Source Test, which can determine what the source of recovered DNA might be (blood, saliva, urine, semen) and she intends to use it on evidence such as the hood latch.
* Radiocarbon (14C) Testing
a forensic test that can measure the age of a person's blood. Zellner wants to use this test to determine whether the blood found in Halbach's car was from 2005 or 1996 (the year Avery had his blood taken and put in the vacutainer tube).
* Alternative DNA Methylation Testing
another forensic test to measure the age of a person's blood. In the event that the Radiocarbon test fails Zellner intends to have this test be her back-up test.
* Trace Testing
microscopical and micro-analytical forensic tests. Using the latest high-tech microscopes Zellner wants items such as bullet FL and the RAV4 car key to undergo re-examination that wasn't possible in 2007.
* Neutron Activation Analysis (ballistics testing)
a test that can detect elements on spent bullets. Zellner wants the unspent bullets from Avery's bedroom to be fired, and than compared to bullet FL and see if the elements are different.

Trace testing
 43

Ballistics testing

Fingerprint comparison
 47
 48

Zellner's motion begins with some background information on the case and 2007 trial, in 24 points, here and there adding some comments of her own. Among these points are:

* The call that Manitowoc County officer Andrew Colborn made about the license plates on 3 November 2005. Zellner adds that this is when Colborn discovered the RAV4 vehicle and logged it into evidence.

* Buting and Strang's theory about Teresa Halbach’s voicemailbox and the deletion of at least 5 voicemails.

* Zellner claims Halbach left Avery’s Auto Salvage alive, because Halbach forwarded an incoming message to her voicemail on 31 October at 14:41 hours, which is about 10 minutes after she arrived at Avery's. This call pinged off the Whitelaw Tower, a cell phone tower which stands 13.1 miles southwest of Avery’s Auto Salvage.

* The theory that Colborn and James Lenk were connected to each piece of evidence. Zellner claims Colborn seized the RAV4. Zellner also claims James Lenk was searching Avery's garage when the bullet was discovered.

* Non-law enforcement individuals entering Avery’s Auto Salvage after it was closed to general public. Zellner adds one of these individuals allegedly used a fake name.

* Blood was discovered in the RAV4, but suspiciously Avery's fingerprints were absent. Zellner adds that it's a compelling scientific fact that Avery's and Halbach's blood did not mix.

* The FBI expert who tested Avery's blood from the RAV4 for the presence of EDTA, a substance which was present in the 1996 blood vial. Zellner calls this an opinion based on unsubstantiated and unreliable data.

Based on these 24 points Zellner claims it is undisputed that Avery was convicted solely on forensic evidence. Using new and improved tests Avery could once more be proven innocent.

## Notes

1. ↑ MaM Wiki notes: Zellner gives no item number or property tag for Colborn's fingerprints. The *CASO Evidence List* has a property tag number for it though, which is 9857.
2. ↑ MaM Wiki notes: Zellner gives no item number or property tag for Lenk's fingerprints. The *CASO Evidence List* has a property tag number for it though, which is 9856.

## References

1. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 1
2. ↑ 2.0 2.1 Zellner, K., *Motion for Post-conviction Scientific Testing*, page 2
3. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 42
4. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 18
5. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 22
6. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 25
7. ↑ 7.0 7.1 7.2 7.3 7.4 7.5 Zellner, K., *Motion for Post-conviction Scientific Testing*, page 32
8. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 29
9. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 30
10. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 41
11. ↑ 11.0 11.1 11.2 11.3 11.4 11.5 11.6 *Motion for Post-conviction Scientific Testing*, page 31
12. ↑ 12.0 12.1 12.2 Zellner, K., *Motion for Post-conviction Scientific Testing*, page 3
13. ↑ 13.0 13.1 Zellner, K., *Motion for Post-conviction Scientific Testing*, page 5
14. ↑ Zellner, K., *Motion for Post-conviction Scientific Testing*, page 8
15. ↑ 15.0 15.1 Zellner, K., *Motion for Post-conviction Scientific Testing*, page 13