Steven Avery’s attorney responds to State’s attempt to block new trial

Steven Avery. Photo: June 21, 2022
Steven Avery. Photo: June 21, 2022(Wisconsin Department of Corrections)
Published: Jan. 26, 2023 at 6:06 AM CST|Updated: Jan. 26, 2023 at 5:11 PM CST
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MANITOWOC COUNTY, Wis. (WBAY) - The attorney for Steven Avery responded Thursday to the State as her office attempts to get a new trial.

Avery is asking for an evidentiary hearing or a new trial on the basis of new witnesses and evidence gathered by the defense since his conviction for the 2005 murder of Teresa Halbach.

The 46-page response filed with Manitowoc County court accuses state attorneys of trying to muddy the significance of “powerful new evidence” that a third-party had opportunity and is “directly connected” to the murder of Halbach and the framing of Avery.

The third-party suspect is identified as one of Avery’s nephews in the Dassey family. Action 2 News is not publishing the name at this time as no criminal charges have been filed. That person was a key witness against Avery at trial.

Attorney Kathleen Zellner claims that witnesses can provide “new and undisputed evidence” that this person was seen pushing Halbach’s vehicle -- with evidence including blood and clothing, which was used to convict Avery -- into the “Avery Salvage Yard in the middle of the night, planting it where it would be easily discovered the next day.”

Zellner alleges evidence was also planted evidence in a burn barrel near Avery’s residence, in his garage, and in his bedroom. It says the bullets found around Avery’s garage were the result of target shooting over a long period of time but the bullet with Halbach’s DNA “was planted by the killer,” pointing out Halbach’s DNA wasn’t found anywhere else in the garage.

The defense also contends touch-DNA on the hood latch of Halbach’s car “was planted by the police” -- but even if that is dismissed, the third-party suspect had access to Avery’s trailer, his toothbrush, and other sources of Avery’s DNA.

The State contended Halbach’s killer opened the hood to disconnect the battery to prevent the car’s alarm from going off. The defense argues, “Mr. Avery’s fingerprints were not found anywhere on the RAV 4 even though the State fingerprint expert found 8 latent prints on the vehicle and testified that someone with ‘sweaty hands’ was more likely to leave prints than someone with dry hands.”

Further, the defense says a trace expert offered the opinion, after a number of experiments, that the hood latch was never swabbed.

Zellner says Avery’s case, with an affidavit from this witness, meets both the “Denny test,” referring to a legal requirement in Wisconsin that the defense, in order to suggest other suspects for a crime, has to be able to support that accusation, and the “Allen” requirements, with sufficient material facts for an evidentiary hearing and an identified witness.

Zellner argues, “The State has not presented a shred of evidence that [the third-party suspect] did not commit this crime (such as an alibi),” particularly after this new witness testimony and evidence.

The state’s response argued that Avery has not shown that the third-party suspect had the motive to kill Teresa Halbach: “Motive is a permissible purpose for introducing other acts evidence. But as explained, none of what Avery has presented is relevant to show motive to commit this specific crime. The court of appeals already determined that Avery’s contention that these images are similar to the violent murder of Ms. Halbach was false.”

In its reply Thursday, the defense says it does not have to prove a motive for why that third party would have murdered Halbach, saying the burden of evidence of a person’s motive rests on the prosecution, not the defendant.

However, Zellner has previously said the motive of the killing of Halbach was “sexual homicide,” alleging the third-party suspect was known to view violent pornography. A forensic examination of the Dassey family’s computer found searches for words like “DNA” and “bondage” and “stab” and “fire” and deleted and recovered pornography depicting the torture and mutilation of young women.

The State argued that Avery failed “to supply sufficient facts” to prove that the subject made these computer searches. Thursday’s response includes additional evidence, including an affidavit and police interviews, and says it is “undisputed” that Steven Avery never used that computer.

Halbach was murdered Oct. 31, 2005, after she visited the Avery Salvage Yard in Mishicot to photograph vehicles for a car-sales magazine. Halbach was reported missing. Her RAV-4 was found at the Avery Salvage Yard on Nov. 5, 2005. Investigators found bone fragments in a burn pit on the property.

The case gained an international following through the Netflix docuseries “Making a Murderer.”


Avery says new evidence shows the Halbach vehicle was returned to Avery Salvage Yard from a different location, which Zellner says was corroborated by a witness who saw a vehicle similar to Halbach’s leave the salvage yard and head toward Highway 147 between 3:30 p.m. and 4 p.m. on the date of the murder. The witness observed the third-party suspect and another man pushing the RAV-4 down Avery Road, which directly intersects with State Highway 147, in the early morning hours of Nov. 5, 2005.

“The newly discovered evidence that [third-party suspect] was in possession of Ms. Halbach’s vehicle means that he had opportunity and access to plant evidence in the vehicle and from the vehicle,” reads the motion.

The motion states that there is “reasonable inference” that he planted bones in the Avery burn pit.

Zellner is also claiming a Brady violation because a call to dispatch from a witness claiming to see the vehicle leave the property was not provided to previous counsel. Zellner says her office received the “previously suppressed” call that was placed on Nov. 6, 2005. The recording had never been disclosed to the trial defense.

Zellner says the existence of the call negates trial testimony that Halbach’s RAV-4 never left the property and that Avery was the last person to see Halbach alive.

Another witness came forward to report seeing Halbach’s RAV-4 parked at a turnaround at Highway 147 and East Twin River Bridge on Nov. 3 and 4, 2005. The witness stated he told a deputy about it, but no report was generated.

Zellner says witness statements of the vehicle leaving the property support the theory that the RAV-4 was later planted at the Avery Salvage Yard when it was discovered on Nov. 5, 2005.

“Even assuming that this was sufficient to meet Denny and Avery had a new trial presenting this defense instead of the police bias defense, there is no possibility that any jury hearing it would have a reasonable doubt about Avery’s guilt,” reads the response from the state. “Particularly damning would be Avery’s complete failure to account for his DNA on the hood latch of the RAV-4 and Ms. Halbach’s remains—again, including a fragment from ‘virtually every’ bone in the human body—being found in his burn pit, and nothing to explain how [third-party subject] could possibly be responsible for the bullet with Ms. Halbach’s DNA on it being found in his garage and matched to the gun above his bed. Avery’s new defense would essentially be asking the jury to ignore the forensic evidence introduced against him.”

The state claims Avery’s motion is “insufficiently pled.”

“The motion is insufficiently pled, unsupported by sufficient facts, and the record conclusively demonstrates that Avery is due no relief on either his newly discovered evidence or his Brady claims. And circuit courts have no authority to order a new trial in the interests of justice unless the request is raised on direct appeal. Accordingly, no evidentiary hearing is necessary, and this Court should summarily deny the motion,” reads the response filed by the state to Avery’s motion for an evidentiary hearing.

Avery is serving a life sentence for a count of 1st Degree Intentional Homicide. A judge will decide whether to grant Avery a hearing based on the new evidence. Judge Sutkiewicz has previously denied Avery a motion for a new trial.

Previous appeals have focused on claims of Ineffective Assistance of Counsel, Brady violations, and Destruction of Bone Fragments. The courts have continued to uphold Avery’s conviction.

In June, Avery was moved to medium security at Fox Lake Correctional Institution upon Zellner’s request. He had previously been housed at maximum-security Waupun Correctional Institution.

Avery’s nephew, Brendan Dassey, was also convicted of killing Halbach. He will be able to ask for parole in 2048. Dassey appealed his conviction to the United States Supreme Court. The justices declined to hear his case. Dassey’s attorneys are asking Gov. Tony Evers to consider clemency or early release. They argue Dassey’s confession to the crime was coerced by detectives. Dassey was 16 at the time of his confession and was considered to be low IQ.

“Brendan Dassey was a sixteen-year-old, intellectually disabled child when he was taken from his school and subjected to a uniquely and profoundly flawed legal process. That process rightly sought justice for Teresa Halbach, but it wrongly took a confused child’s freedom in payment for her loss. Such a debt can never be justly repaid with the currency of innocence,” reads the clemency petition.

In 2019, Dassey was moved from maximum-security Columbia Correctional to medium-security Oshkosh Correctional.