Motion for Post-conviction Relief

## Contents

### Topics

Alleged newly discovered evidence, alleged evidence of a *Brady* violation, alleged assistance of counsel

### Evidence mentioned

* Burned remains
* car key
* Item FL
* 1996 blood vial
* Scent tracking dogs’ scent trails
* Hood latch swab
* Halbach’s voicemailbox
* Halbach’s “day planner”
* and more

## Result

### CoA’s decision

affirmed

The ***Notice of Motion and Motion for Post-conviction Relief Pursuant to Wis. Stat. 974.06 and 805.15*** is Steven Avery's attorney Kathleen Zellner's post-conviction brief.

Following the Circuit Court judge's order to release several trial exhibits to subject them to contemporary scientific testing, which both Zellner and the State had agreed upon, Zellner consulted various forensic scientists and had them sign affidavits. She also obtained affidavits of other people, including her own client Steven Avery.

Zellner looked into Steven Avery's 2007 trial attorneys Dean Strang and Jerry Buting and whether they were ineffective in assisting Avery.

Finally, Zellner sought to obtain evidence of a *Brady* violation, a term given to one side withholding evidence from the other side that might be vital to the outcome of the trial.

All her research was collected in a 221 page brief and over 1,000 pages of exhibits, culminating in an unusually large brief of over 1,200 pages.

## Background

Following the stipulation in late 2016 Kathleen Zellner received the requested pieces of evidence from the Steven Avery trial, and the 1996 blood vial. Zellner sought the aid of several experts to conduct analysis or experiments on the evidence using methods or equipment not yet available in 2007. The crew of *Making a Murderer* season 2 was seemingly present on several occasions during this process, as many interviews with experts, performed tests and analysis' were seen throughout the documentary.

In this motion Zellner seems to identify Halbach's friend and former boyfriend Ryan Hillegas as the killer. Aside from being the killer Zellner alleges he also framed Avery and misled the investigators to focus on Avery.

## Summary

The motion begins with Zellner giving a summary of the Defense's and State's cases at the 2007 criminal trial and an overview of Avery's appeal history, before getting to her arguments that she believes should get her client Steven Avery an evidentiary hearing. Zellner presented her arguments under four main points:

* Ineffective Assistance of Defense Counsel
* *Brady* Violations
* New Evidence
* Ethical violations of prosecutor Kratz have impaired Mr. Avery's due process rights to a fair trial

### Ineffective Assistance of Defense Counsel

By far the largest portion of the motion is dedicated to Zellner attempting to prove ineffective assistance of counsel by Steven Avery's 2007 trial attorneys Dean Strang and Jerry Buting. She spends a total of 88 pages on this matter, which is a lot more than the pages spent on alleged *Brady* violations (5 pages), alleged new evidence (25 pages) and alleged ethical violations of Kratz (22 pages).

When a defendant-appellant is trying to prove ineffective assistance of counsel he does not have to prove total incompetence, but just that it fell below an objective standard of reasonableness. Defense counsel has a duty to investigate and present expert testimony, however according to Zellner Avery's 2007 defense team did not do that well enough and in attempting to prove that she lists numerous examples.

1. Failure to investigate Avery's claim that the blood in the RAV4 was stolen from his sink.
*affidavits referenced: affidavit of Steven Avery, affidavit of Roland Johnson*
Zellner writes, based on Avery's own words, that on Wednesday 3 November Avery reopened a cut on his finger while trying to unhitch his sister's trailer. He then bled in his own car, his bathroom and his sink. Avery claims he did not wash away the blood because his brother Chuck Avery was waiting for him to go to Menards. He hastily wrapped his finger in masking tape and forgot to lock the door.
As the two brothers headed to Menards, Avery noticed taillights of a vehicle close to his trailer. Avery describes the taillights as RAV4-taillights. When the brothers returned to the trailer they did not see the vehicle. Avery got home about 22:00~22:30 hours and went straight to bed. The next morning he noticed most of the blood in his sink was gone.
On Friday 4 November, early in the evening, Avery noticed cigarette smoke in his trailer bedroom. In the morning of Saturday 5 November he noticed pry marks on his trailer door. As Avery's brother Chuck left for Crivitz he noticed a vehicle's headlights near the car crusher.
2. Failure to present a DNA expert's opinion about the blood being planted in the RAV4.
Though there was blood of Steven Avery discovered at various places in the RAV4, there were no fingerprints of Avery obtained from the vehicle. Zellner believes it is a failure by Trial Defense to not get their own DNA expert on this matter.
3. Several arguments about failing to present a blood spatter expert on blood being planted in the RAV4, the stains on the RAV4 cargo door, and the 1996 vial not being the source of the blood.
*affidavits referenced: affidavit of Stuart James*
   A series of experiments were conducted to see if Zellner and her team could replicate the blood of Avery and Halbach found in the RAV4. Using a mannequin the team was unable to get the same blood spatters on the cargo door as Halbach's RAV4 had. Back in 2007 during Avery's trial the State said the spatter on the cargo door was consisted with spatter you would get when swinging "something" inside the car, such as a body. Based on Zellner's experiments she believes the blood spatter was the result of Halbach being struck by a blunt object behind her car with the cargo door open.
Trial Defense tried to argue that the blood was planted in the RAV4 using the 1996 blood vial, evidenced by the hole in the cap of the vial and the cut tape around the styrofoam box in which the vial was stored. However, the Wisconsin Innocence Project, however, was responsible for the cut tape when they opened the box in 2002 when Avery was still in prison for the 1985 sexual assault. Trial defense also inaccurately represented Manitowoc County Lieutenant James Lenk's knowledge about the vial, using a transmittal form as proof of his knowledge. However the transmittal form made no mention of the vial. Only of other sorts of items.
Trial Defense was also aware that a nurse made the hole in the cap on top of the vial and had no reason to assume anyone else was responsible for this hole.
4. Failure to demonstrate to the jury that the RAV4 car key was planted.
*affidavits referenced: affidavit of Steven Avery, affidavit of Kurt Kingler*
   Zellner describes the events of the discovery of Halbach's car key in Avery's trailer and that law enforcement believed the car key probably fell on the floor next to the record cabinet when Manitowoc County Sheriff's Department Sergeant Andrew Colborn had moved the record cabinet away from the wall and later, rather forcefully, put items back in the record cabinet. When the record cabinet was later moved back to its original position the key was found by James Lenk. Zellner had conducted an experiment with a bookcase and failed to replicate the event.
5. Failure to demonstrate that the RAV4 car key was a sub-key, not the main key.
The key that was found in Steven Avery's bedroom was not the main key, but a sub-key, or spare key. Zellner writes that Ken Kratz wanted the jury to believe that the key was a main key and thus with Halbach all the time. If the key was a spare key it is more likely that it was planted by Manitowoc officers James Lenk and Andrew Colborn after taking it from Halbach's residence.
Zellner also claims that Halbach's car key can be seen on a video interview with Halbach's roommate Scott Bloedorn. The interview was taken on 4 November and the key can supposedly be seen next to the kitchen sink.
6. Failure to present a trace expert to show that the car key was not used regularly, making it more probable it was planted.
*affidavits referenced: affidavit of Christopher Palenik*
Zellner had a Trace Expert, Dr. Palenik, examine the RAV4 car key and concluded that the key was not a key she used on a daily basis. The shape of the key found in Avery's bedroom closely corresponds to an illustration of a sub-key from the RAV4's manual and it looks different from the key seen in the victim's hand in Trial Exhibit 5.
Palenik also examined the debris adhering to the key and compared it to debris on keys of other cars. It was noticed that the Halbach's car key had a greater quantity of debris than the exemplar keys. This is consistent with the hypothesis that the key was not used on a daily basis.
7. Failure to present a DNA expert to establish Avery's DNA on the car key was planted.
*affidavits referenced: affidavit of Steven Avery, affidavit of Karl Reich*
According to Zellner her expert Karl Reich had conducted experiments that demonstrate that Avery's DNA on the car key was planted, because the amount on the car key recovered from Avery's trailer had a much larger quantity of DNA than the amount of DNA Avery deposited on an exemplar car key by holding it in his hand for 12 minutes. The amount of DNA on the exemplar car key was 10x less than what was recovered from Halbach's car key. Now that Zellner has shown that Avery can not deposit such a large quantity of DNA himself by simply holding the key the only conclusion that's left is that the DNA was planted.
8. Failure to act on the groin swab being taken beyond the scope of the search warrant.
*affidavits referenced: affidavit of Steven Avery*
Zellner writes that when Avery was taken to a hospital by Wiegert and Fassbender a nurse, ms Fritsch, took two groin swabs of him, though this was beyond the scope of the search warrant. Fassbender's report says that he immediately stopped the nurse from taken those swabs. Zellner claims that the nurse would never have swabbed the groin area if she wasn't specifically instructed to do so by Fassbender and Wiegert.
9. Several failures regarding the hood latch; such as not interviewing Avery about it, failure to present DNA and Trace experts, chain of custody fabrication.
*affidavits referenced: affidavit of Steven Avery, affidavit of Karl Reich*
Following Brendan's confession, co-lead investigator Mark Wiegert ordered Deputy Hawkins and Sgt. Tyson to swab the hood latch of Halbach's RAV4. Zellner says this is inconsistent with a good faith effort. If law enforcement really believed Avery opened the hood, they would've swabbed not just the hood latch. According to Calumet County documents it was investigator Wiegert who then transferred the swab to the Wisconsin State Crime Lab. However, the transmittal form actually shows Deputy Hawkins' handwritten name.
Zellner writes that Wiegert handed over the swab and then wrote Hawkins' name on the form. Zellner further writes that Fassbender claimed in his report that the groin swabs taken by nurse Fritsch were discarded, but that Fritsch never reported she even took groin swabs. Zellner concludes it is a reasonable probability that Wiegert and Fassbender intended to DNA from the groin swabs and that Wiegert substituted the groin swab for the hood latch swab.
10. Failure to present a DNA expert to say Avery never left his DNA on the hood latch.

*affidavits referenced: affidavit of Karl Reich, affidavit of Christopher Palenik*
Zellner's expert Reich oversaw experiments in which individuals touched a hood latch identical to Halbach's RAV4's hood latch. The hood latch was then swabbed and Source Tested for DNA and skin cells. In 11 out of 15 experiments no detectable DNA was present. The remaining four swabs yielded much lower amounts of DNA than Avery's 1.9 nanograms. This illustrates, according to Zellner, the complete improbability of an individual leaving a complete DNA profile by simply touching a hood latch. Zellner writes that it is Dr. Reich's opinion that the most logical explanation for such a high DNA yield is that it was actually obtained from a swab taken from Avery's groin.
If trial defense counsel had learned that the groin swab was substituted for the hood latch swab it would've undermined the State's entire case.
11. Failure to present a forensic expert to say Halbach was not burned in Avery’s burn pit.
*affidavits referenced: affidavit of John DeHaan, affidavit of Lauren Hawthorne*
Zellner placed DeHaan's affidavit in her motion. In it, DeHaan writes that he does not believe that the burn pit was the primary burn site. He does, however, note that it is possible to burn a human body to such a degree in an open field fire like Avery had, but that it would take longer than four hours (which is how long DeHaan thinks Avery's bonfire lasted). DeHaan is of the opinion that a minimum of six hours is required to burn a body to such a degree, while letting the body burn undisturbed.
12. Failure to present a competent forensic anthropologist to confirm the bones in the quarry are human.
*affidavits referenced: affidavit of Steven Symes*
Zellner contacted Dr. Steven Symes, a forensic anthropologist whose qualifications, according to Zellner, surpass those of Leslie Eisenberg and Scott Fairgrieve, two experts from Avery's trail. Symes has offered the opinion that a microscopic examination and histological slides of the alleged pelvis bone found in the quarry would've shown whether the bone was human or not.
Zellner adds that if 2007 Trial Defense would've had a competent forensic anthropologist conduct microscopic and histological examination they would've conclusively established that the bones were moved.
13. Failure to conduct a simple experiment to establish Robert Fabian's testimony about a burning smell from Avery's burn barrel was false.
*affidavits referenced: affidavit of James Kirby, affidavit of Steven Avery*
Zellner claims that the burned personal belongings of Halbach were planted in the burn barrel and that Ken Kratz was aware of it. The State's only witness that Avery burned something in his burn barrel on 31 October 2005 was Robert Fabian. At trial Fabian testified that he and Earl Avery were driving a golf cart around the salvage yard at 17:20 hours. According to Fabian Avery's burn barrel contained a fire at that time. Fabian described heavy smoke and a distinct odor of burning plastic emanating from Avery's burn barrel.
Zellner claims that the experiment her team conducted prove that Fabian's testimony is false. Her investigator James Kirby burned similar items in the burn barrel and though they were burned to the same degree as Halbach's, Kirby and his witnesses observed no odor.
14. Failure to present a police procedure and investigations expert to establish the investigation was fatally flawed.
*affidavits referenced: affidavit of Gregg McCrary, affidavit of Tom Pearce*
A large portion of this section of the motion is dedicated to this topic. Zellner claims that 2007 Trial Defense failed to obtain an expert in police procedures and investigations, such as her expert - former FBI agent Gregg McCrary - who could've educated the jury about the fundamental failures of law enforcement during the Halbach investigation.
McCrary is of the opinion that someone who had no substantial prior relationship with the victim is unlikely to be the killer. The killer is probably someone related to the victim and the motive to kill is typically rooted in interpersonal conflict. Credible homicide investigations therefor have to begin with those closest to the victim.
Investigators should be wary of individuals who are lying or trying to mislead the investigation Individuals who lie may do so to conceal their involvement in the case. The more organized an offender is, the more likely he or she is to inject themselves in the investigation in an attempt to exert as much control as possible over the investigation to divert suspicion away from them.
From their first exposure to a crime scene investigators may construct an early narrative. This may cause bias and tunnel vision later on, as investigators may want to fit the evidence with their narrative.
Regardless of what seemingly valid alibis a suspect may have, they should always be examined for injuries when investigators believe that a violent crime has occurred. All alibis and statements should be thoroughly investigated.
To summarize, what is basically said is that Steven Avery is unlikely to be the killer - because no relationship (other than a customer-business relationship) was established - and that the real killer is someone who may have inserted himself in the investigation to lie to and mislead the investigators, and who may have injuries that the investigators did not check for because the investigators had already constructed a narrative in which Avery is guilty and they were trying to piece everything together from that perspective. Zellner then lists numerous examples of what she considers flaws in the investigation, that the 2007 Trial Defense Counsel should have exposed.
**a**) failure of law enforcement to investigate Halbach's background to realize she was in danger.
According to Zellner Halbach could be considered at an elevated risk of danger due to her prior abusive relationship with Ryan Hillegas. And because she also made nude photos.
**b**) failure of law enforcement to identify prior abuse in Halbach's romantic relationships.
according to McCrary, based upon violent crime statistics, Halbach was most likely killed by someone she knew and who may have been involved in a romantic relationship with her.
b1) the killer's post-mortem activities to conceal evidence and frame Avery.
according to Zellner the killer had access to Halbach's voicemail and deleted voicemail messages from it to buy himself time before Halbach's friends and family realize she was missing. Knowing that he was likely going to be a suspect because of his prior romantic relationship with Halbach devised a plan to burn the body and plant evidence so that law enforcement would focus on someone else. The killer found out Halbach had an appointment with Avery, thanks to paperwork in her car, and formulated a plan to frame Avery. To make sure law enforcement would focus on Avery, the killer took control of a citizen search group. Via this group he would stay updated on the case and stay in contact with law enforcement, controlling the focus of the investigation.
b2) the killer, not law enforcement, planted the blood in the RAV4.
Zellner has determined that law enforcement did not plant the blood, but the killer did. Law enforcement did not have enough time to do so. The killer was also familiar with science, and the gravel pit next to Avery's through which he drove the RAV4 onto the property. While doing so Avery caught sight of the RAV4's taillights. When Avery left to Menards with his brother Chuck, the killer snuck inside the trailer, which Avery forgot to lock despite seeing suspicious taillights near it, and retrieved the fresh blood from Avery's sink. The killer stole some blood and deposited it in the RAV4 before it coagulated (within 15-28 minutes after Avery dripped the blood in the sink).
b3) the killer damaged the RAV4 parking light while trying to plant it
Zellner believes that the parking light was damaged when the killer hit a Red Ford Pinto on the Avery's Auto Salvage property.
**c**) only one person meets the *Denny* requirements (a suspect with motive, opportunity and connection to the crime)
Ryan Hillegas was Halbach's ex-boyfriend. According to Zellner's research Halbach was physically abused by Hillegas during their relationship. Hillegas' motive to kill Halbach was jealousy. Zellner claims that Hillegas was still romantically interested in Halbach, but Halbach became sexually active with her roommate Scott Bloedorn. Hillegas committed perjury at trial when he said Halbach and Bloedorn were just friends.
Hillegas had opportunity for the murder and to plant evidence because according to Zellner he was unemployed in October and November 2005. Following the murder he spearheaded the citizen search for Halbach using a fake name "Ryan Kilgus" and also moved into her home.
15. Failure to properly investigate several topics, such as Colborn's call, voicemail deletions, witness to the RAV4 planting, etc.
Zellner compares Avery's case to the case *State v. Thiel*, a 2003 Wisconsin case. In this case the Supreme Court granted post-conviction relief after the defense at trial failed to conduct a significant investigation. In the *Thiel* case the defendant-appellant's trial attorney had not reviewed all of the discovery which constituted in additional basis to relief. The same result is compelled here, claims Zellner.
16. Failure to establish the correct timing of Colborn's call to dispatch.
Zellner claims that on 4 November 2005 Andrew Colborn discovered Halbach's RAV4 and called dispatch on a personal line to confirm Halbach's license plate number. On the recorded call a third party can be heard saying "it's hers". Colborn said he made this call after talking to investigator Wiegert of Calumet County about the disappearance of Teresa Halbach. Zellner believes this is not correct and that the phone call occurred after Colborn had visited Avery's Auto Salvage and had spoken with Avery. Zellner bases this on the name of the audio file, which is "Track 3". The previous audio file, a call named "Track 2", was a phone call by an unnamed officer who had visited the Zipperer residence. This call was made *after* the visit. Thus Zellner concludes Track 3 was also made *after* a visit - the visit to the Avery property.
17. Failure to construct timelines of Halbach's and Avery's activities on 31 October 2005.
*affidavits referenced: affidavit of Steven Avery*
Using new telephone records of Halbach and Avery Zellner has constructed the "correct" timeline.
18. Failure to detect voicemail deletions from Halbach's phone.
At Steven Avery's 2007 trial the Defense alleged that some of the voicemail messages on Halbach's voicemail were deleted. Zellner claims there were more messages deleted than what trial defense counsel originally thought.
19. Failure to investigate and request DNA testing of items found in Maribel Caves Park.
A civilian submitted items allegedly found at Maribel Caves Park, such as torn women's blue jeans and a personal lubricant, to Andrew Colborn of Manitowoc on 6 November 2005. These items were never forensically analyzed by the State or the Defense.
20. Failure to investigate the veracity of police reports regarding Joshua Radandt.
*affidavits referenced: affidavit of Joshua Radandt*
Josh Radandt told investigators in 2005 that he saw a fire contained to a burn barrel next to Avery's trailer. When Radandt was re-interviewed the investigators pressured him to describe the fire as large, behind Avery's garage and in an open pit. Avery's 2007 Defense failed to investigate Radandt's observation of a fire. Had the Defense called Radandt as a witness to the trial his testimony would've demonstrated to the jury that the investigators knew that Halbach's vehicle had been driven through his gravel pit and planted onto the Avery property.
21. Failure to investigate the veracity of police reports regarding Paul Metz.
*affidavits referenced: affidavit of Paul Metz*
Based on an affidavit by Paul Metz, a cattle farmer who lived about 7km away from the Avery's, Zellner writes that a police report about an interview with Metz was incorrect. The report says that Metz had heard a big "whoosh"-sound on 1 November 2005 that reminded him of starting a fire with gasoline, and that he smelled a vile odor coming from the direction of the Avery's. In the affidavit Metz states that he heard a buzzing sound that reminded him of electrical wires surging. The odor he smelled reminded him of insulation burning. The 2007 trial defense failed to investigate this story.
22. Failure to investigate a possible burial site.
*affidavits referenced: affidavit of Steven Avery*
Scent-tracking dogs and human remains detection dogs identified a possible burial site south of the Kuss Road cul-de-sac, roughly 450 meters west of Avery's trailer. Between 5 and 8 November the dogs never alerted to the remains in Steven Avery's burn pit. Based on the scent dogs' interest in the possible burial site it is, according to Zellner, very probably that Halbach was buried there for a period of time before her body was burned.
23. Failure to locate and interview witness who observed the RAV4 being driven onto Avery's via the quarry.
*affidavits referenced: affidavit of Wilmer Siebert, affidavit of Joshua Radandt*
Zellner located a witness, Wilmer Siebert, who claims that he saw a vehicle that looked similar to Halbach's RAV4 enter the gravel pit near Avery's Auto Salvage. It was accompanied by a white Jeep. Shortly after both vehicles entered the gravel pit, only the white jeep returned. Siebert's daughter reported this to law enforcement, however this call was not turned over to the defense.
### *Brady* violations

"*Brady* violation" is a term that refers to the Prosecution failing to disclose evidence to the Defense thereby violating the accused's constitutional rights. Or more simply put, the Prosecution withheld evidence from the Defense and it increased their chances of success at trial. The term is derived from the 1963 case *Brady versus Maryland*, where such an event occurred. *Brady* evidence does not have to be evidence that potentially acquitted the defendant. It merely needs to be evidence favourable to the defendant. Zellner gives four examples of evidence that, according to her, meet the *Brady* standard.

1. The Zipperer Voicemail CD
Zellner writes in her motion that investigators allegedly withheld a CD containing a copy of the Zipperer family voicemail with a message from Teresa Halbach. When law enforcement interviewed the Zipperer's on 3 November 2005 they were informed of Halbach's voicemail message and made a copy of it which was stored on a CD. The CD was never handed over to the 2007 trial Defense and the CD was not played during the 2007 trial.. Allegedly, the CD has been lost. Special Prosecutor Tom Fallon confirmed in a letter to Zellner that neither Manitowoc County Sheriff’s Department nor Calumet County Sheriff’s Department were able to recover the CD.
Zellner writes in her motion that the investigators (Jacobs and Remiker of Manitowoc, Wiegert of Calumet, et al) concealed the CD because it refuted their theory that Avery was Halbach's last appointment. Ken Kratz also was aware of, or played a part in the concealing, because the voicemail would prove that Halbach's last stop was the Zipperer residence.
2. The amount of gas left in Halbach's RAV4
The amount of gasoline that was left in the RAV4 fuel tank was not determined or documented. According to Zellner this would've been vital information because the Defense would've been able to measure how much miles the RAV4 had made since the last time Halbach had tanked. Zellner writes that the State concealed the mileage because it would've refuted their theory that Halbach was killed on Avery's property.
3. A flyover video of Avery's Auto Salvage was edited
On 4 November 2005 Wendy Baldwin and Sheriff Pagel, both of Calumet, made a flyover video of Avery's Auto Salvage and other nearby areas. The ridge where the RAV4 was found one day later was also caught on camera. Zellner writes that the investigators were in the air for about four hours, yet the video was only 3 minutes long. According to Zellner the video was edited to conceal the fact that the RAV4 was not yet at the location where it would later be found.
4. The RAV4 was driven into Avery's Auto Salvage via the quarry
Josh Radandt, who lives nearby Avery's Auto Salvage, wrote in his affidavit from 2017 that investigators who were with the DCI told him they believed the RAV4 was driven from the Kuss Road cul-de-sac into the quarry and finally onto the salvage yard. According to Zellner there is no report written that states the RAV4 was suspected to have taken this route. Radandt was also not called to take the stand during the trial. Zellner believes testimony regarding this matter could've impeached State witnesses and would've provided exculpatory evidence that the RAV4 was planted.
### New Evidence

Much of the "chapter" on New Evidence is dedicated to the test results on the items Zellner requested in the *Motion for Post-conviction Scientific Testing* and the *Stipulation and Order for Independent Scientific Testing* in 2016. In 25 pages she shares her alleged new scientific approach results on item FL, the hood latch swab, the RAV4 car key, as well as the "lie detector" results of brain fingerprinting.

1. Item FL
*affidavits referenced: affidavit of Lucien Haag, affidavit of Christopher Palenik*
According to Zellner two experts, ballistics expert Lucien Haag and trace expert Christopher Palenik, are of the opinion that item FL, the bullet with Halbach's DNA found in Avery’s garage, was not fired through bone. According to Zellner the State told the jury that it *did* go through bone.
Haag performed a test using exemplar bullets, identical to the ones in evidence, and fired them through 2 millimeter thick flat bone. When two exemplar bullets were microscopically examined by Palenik bone particles were visible on both of them. Zellner writes that in the Crime Lab reports there is no mention of bone particles found on item FL. If bone was observed on item FL, the Crime Lab would've made mention of it. Because of this, Zellner writes, Haag concludes item FL was not shot through Halbach's skull.
When Palenik analyzed the bullet he noticed the surface was covered in debris:
- wood particles adhering to or embedded in the bullet lead. This suggests the energized bullet encountered a wooden object.
- According to Zellner, Palenik noticed a red droplet about ~.073 mm2 which he suspects may be paint. Based on the shape Palenik suspects the droplet was deposited on the bullet after the bullet had come to rest.
- A waxy substance covers a significant portion of the leading surface of the bullet. According to Haag this waxy substance is used by firearms examiners to orient and hold the bullet during examination.
- Numerous fibers were observed. Some, but not all, were adhered to the waxy substance. The fibers could be more specifically identified after further analysis.
According to Zellner, Dr. Palenik opines that there is no evidence that the bullet went through bone. The evidence suggest it took a different trajactory involving wood.
2. Brain fingerprinting
*affidavits referenced: affidavit of Lawrence Farwell*
Brain fingerprinting is a type of lie detector test created by Lawrence Farwell. It can determine whether or not a suspect knows salient information about the crime that is known only to the perpetrator. Briefly stated, brain fingerprinting "detects" information stored in someone's brain by offering stimuli and then check via certain equipment whether the brain responds to those stimuli. However, brain fingerprinting can not be succesfully applied to suspects who have already been exposed to details of the crime in circumstances unrelated to committing the crime (*i.e.*, a newspaper, or, in Avery's case, a trial). In such a case no viable probes would be available.
Because Avery had been in a long trial he could no longer be brain fingerprinted about the details from the trial. Instead, Farwell used stimuli based on a newly created theory by Zellner, and based on the blood spatter analysis by Stuart James, that Halbach was bludgeoned behind her car with the cargo door open. The specific purpose of the brain fingerprinting was to determine if Avery had information stored in his brain about (a) the location of the victim in relation to the vehicle during the attack and (b) the configuration of the vehicle at the time of the attack (cargo door open).
The test results show with 99,9% certainty that Avery does not have knowledge of the above stated points.
3. Hood latch swab
*affidavits referenced: affidavit of Christopher Palenik, affidavit of Karl Reich*
Palenik used a new model microscope developed in 2016, thus unavailable to the Defense at trial, to analyze the hood latch swab. Zellner writes that it is Palenik's opinion that the swab was not used on the hood latch.
Dr. Reich used DNA Source Testing to determine the source of the DNA found on the hood latch. Reich ruled out blood, urine, saliva and semen as the source of the DNA on the hood latch. According to Zellner Reich also concluded that the DNA was not left on the hood latch as a result of Avery touching the hood latch.
4. RAV4 valet car key
*affidavits referenced: affidavit of Karl Reich*
Source Testing was also performed, by Reich, on the RAV4 spare car key found in Avery’s trailer. Reich concluded the DNA on the key was not blood, as the State, according to Zellner, implied to the jury. Instead, the DNA on the key came from skin cells of Mr. Avery. According to Zellner Reich concluded that the skin cell DNA was planted because of the amount of DNA found on the key, which was allegedly 10x higher than what Avery left on an exemplar key. According to Zellner Reich also concluded the skin cell DNA was planted using Avery's tooth brush. Avery noted that on photos taken by law enforcement he can't see his tooth brush.
### Ethical violations of Ken Kratz

*affidavits referenced: affidavit of Bennet Gershman*
On this matter Zellner conducted Bennett Gershman, a Professor of Law and widely recognized as the leading authority in the US on the subjects of prosecutorial misconduct. According to Gershman Kratz caused professional prosecutorial misconduct when he:

* made his press conference on 2 March 2006 following, and based on, the confession of Brendan Dassey.
* charged Avery based on Dassey's confession, which Kratz, allegedly, knew was a false confession.
* attempted to introduce allegations of Avery's prior wrongful acts into the 2007 criminal trial.
* pursuited inconsistent and irreconcilable theories at two separate trials (Avery's and Dassey's).
* requested for an aiding and abetting instruction at trial.
* publicly disseminated inflammatory information about Avery.
* had jailhouse contact with Avery.

## Judge’s decision

*main article: Memorandum Decision and Order*
In October 2017, four months after Zellner filed her motion, the Circuit Court judge Angela Sutkiewicz **denied** the motion. A selection of responses:

1. about the alleged ineffective assistance, the largest part of the motion, the judge wrote that Zellner filed this to the wrong court. Sutkiewicz, being a Circuit Court judge, can not rule on such a matter. The judge advised Zellner to file a motion to the right court; the Court of Appeals.
2. about the new evidence the judge wrote that Zellner was overstating her expert's claims. For example the Judge wrote that Zellner claimed that Avery could not have left his DNA on the hood latch by touching it. However, contrary to Zellner's claims, Reich's affidavit does *not* rule out the defendant's hands as the source. Reich's affidavit declines to make such a claim, noting that the matter could become subject of further, non-DNA, investigation.
3. about the bullet that was recovered from Avery's garage Zellner wrote that it is proven that it did not pass through bone and that the red substance that was recovered from the bullet was not blood, but paint. The Judge responds that the report of Zellner's expert indicates that the tests used on the bullet are not inclusive to the point of discovering *all* particles present on the bullet. The expert also says that he does not know what the red substance actually is and that further testing can clarify this.

## Notes

1. ↑ MaM Wiki notes: As Zellner notes in her motion the CD is gone. The contents of the CD are thus unknown to Zellner. So, it seems that whatever she says about the possible contents is merely speculation on her part.
2. ↑ MaM Wiki notes: Zellner never did file this part of her motion to the Court of Appeals.
3. ↑ MaM Wiki notes: Zellner did conduct further investigation on this matter.
4. ↑ MaM Wiki notes: s far Zellner has not done any further testing on the red substance on the bullet.

## References

1. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 43
2. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 46
3. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 51
4. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 52
5. ↑ 5.0 5.1 Zellner, K., *Motion for Post-conviction Relief*, page 53
6. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 54
7. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 5457
8. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 58
9. ↑ 9.0 9.1 Zellner, K., *Motion for Post-conviction Relief*, page 59
10. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 62
11. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 63
12. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 64
13. ↑ 13.0 13.1 13.2 Zellner, K., *Motion for Post-conviction Relief*, page 65
14. ↑ 14.0 14.1 14.2 14.3 Zellner, K., *Motion for Post-conviction Relief*, page 66
15. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 70
16. ↑ 16.0 16.1 16.2 Zellner, K., *Motion for Post-conviction Relief*, page 73
17. ↑ 17.0 17.1 Zellner, K., *Motion for Post-conviction Relief*, page 74
18. ↑ 18.0 18.1 18.2 Zellner, K., *Motion for Post-conviction Relief*, page 75
19. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 75-84
20. ↑ 20.0 20.1 20.2 Zellner, K., *Motion for Post-conviction Relief*, page 85
21. ↑ 21.0 21.1 21.2 Zellner, K., *Motion for Post-conviction Relief*, page 86
22. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 87
23. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 93
24. ↑ 24.0 24.1 24.2 Zellner, K., *Motion for Post-conviction Relief*, page 94
25. ↑ 25.0 25.1 Zellner, K., *Motion for Post-conviction Relief*, page 95
26. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 96
27. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 97
28. ↑ 28.0 28.1 28.2 Zellner, K., *Motion for Post-conviction Relief*, page 98
29. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 99
30. ↑ 30.0 30.1 Zellner, K., *Motion for Post-conviction Relief*, page 100
31. ↑ 31.0 31.1 Zellner, K., *Motion for Post-conviction Relief*, page 101
32. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 102
33. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 104
34. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 105
35. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 106
36. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 109
37. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 117
38. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 119
39. ↑ 39.0 39.1 Zellner, K., *Motion for Post-conviction Relief*, page 120
40. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 121
41. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 122-125
42. ↑ 42.0 42.1 Zellner, K., *Motion for Post-conviction Relief*, page 126
43. ↑ 43.0 43.1 43.2 Zellner, K., *Motion for Post-conviction Relief*, page 127
44. ↑ 44.0 44.1 44.2 Zellner, K., *Motion for Post-conviction Relief*, page 128
45. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 129
46. ↑ 46.0 46.1 Zellner, K., *Motion for Post-conviction Relief*, page 130
47. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 131
48. ↑ 48.0 48.1 Zellner, K., *Motion for Post-conviction Relief*, page 132
49. ↑ 49.0 49.1 49.2 Zellner, K., *Motion for Post-conviction Relief*, page 133
50. ↑ 50.0 50.1 50.2 Zellner, K., *Motion for Post-conviction Relief*, page 134
51. ↑ 51.0 51.1 Zellner, K., *Motion for Post-conviction Relief*, page 135
52. ↑ 52.0 52.1 Zellner, K., *Motion for Post-conviction Relief*, page 136
53. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 137
54. ↑ 54.0 54.1 Zellner, K., *Motion for Post-conviction Relief*, page 138
55. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 142
56. ↑ 56.0 56.1 56.2 Zellner, K., *Motion for Post-conviction Relief*, page 143
57. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 144
58. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 146
59. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 147
60. ↑ 60.0 60.1 60.2 Zellner, K., *Motion for Post-conviction Relief*, page 151
61. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 153
62. ↑ 62.0 62.1 62.2 Zellner, K., *Motion for Post-conviction Relief*, page 155
63. ↑ 63.0 63.1 63.2 Zellner, K., *Motion for Post-conviction Relief*, page 156
64. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 162
65. ↑ Zellner, K., *Motion for Post-conviction Relief*, page 163
66. ↑ Sutkiewicz, A., *Memorandum Decision and Order*, page 2
67. ↑ Sutkiewicz, A., *Memorandum Decision and Order*, page 3
68. ↑ Sutkiewicz, A., *Memorandum Decision and Order*, page 4
69. ↑ 69.0 69.1 69.2 Sutkiewicz, A., *Memorandum Decision and Order*, page 5