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MAKING A MURDERER: Court rules against Steven Avery in latest appeal

In this March 13, 2007 file photo, Steven Avery listens to testimony in the courtroom at the...
In this March 13, 2007 file photo, Steven Avery listens to testimony in the courtroom at the Calumet County Courthouse in Chilton, Wis.(AP)
Published: Jul. 27, 2021 at 12:44 PM CDT
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MADISON, Wis. (WBAY) - A Wisconsin appeals court has ruled against Steven Avery in his latest quest for a new trial in the 2005 murder of Teresa Halbach.

The decision released Wednesday states Avery is not entitled to an evidentiary hearing because a lower court did not err in denying motions raising claims about evidence and effectiveness of Avery’s trial attorneys. Avery also wanted to hearing to introduce evidence of a third party suspect.

“We hold that Avery’s § 974.06 motions [post-conviction procedure] are insufficient on their face to entitle him to a hearing and that the circuit court did not erroneously exercise its discretion in denying the motions to vacate and for reconsideration,” reads the decision.

Avery attorney Kathleen Zellner says she intends to continue the fight for her client’s freedom.

“Not deterred by the appellate court decision—-it pointed out the specific doors that are still open for Mr. Avery’s quest for freedom. We appreciate the careful review,” Zellner tweeted.

CLICK HERE to read the full decision.

“Avery raises a variety of alternative theories about who killed Halbach and how, but as the State correctly notes, a WIS. STAT. § 974.06 motion is not a vehicle to retry a case to a jury. A criminal defendant is constitutionally entitled as of right to a jury trial and, if convicted, a direct appeal. If he or she later seeks to collaterally attack the conviction on constitutional or jurisdictional grounds, a § 974.06 motion is appropriate. But key to any § 974.06 motion are sufficient, nonconclusory showings both as to why the issue was not raised in an earlier postconviction proceeding and why the claim has facial merit. These requirements are not optional and cannot be met through broad conclusions or by misstating evidence.

We express no opinion about who committed this crime: the jury has decided this question, and our review is confined to whether the claims before us entitle Avery to an evidentiary hearing. We conclude that the circuit court did not erroneously exercise its discretion in denying hearings on Motions #1, #4, and #5; in not vacating its order on Motion #1; and in not reconsidering its ruling on Motion #1. As for Motion #6 and the portion of Motion #3 (the motion to reconsider) raising new claims, we leave open the possibility that Avery may raise these claims in a new WIS. STAT. § 974.06 motion. We remind Avery, however, that he will need to overcome the Escalona-Naranjo procedural bar on these claims, which includes providing a sufficient reason for not raising them in his June 2017 motion. Moreover, Avery will need to satisfy the previously discussed specificity requirements before such claims may proceed to a hearing. See John Allen, 274 Wis. 2d 568, ¶¶2, 23.” - District Court of Appeals II

Avery attorney Kathleen Zellner filed a motion with the Wisconsin Court of Appeals District II asking to allow Avery to file a motion disclosing new evidence of what’s known as a Brady violation and to introduce a third-party suspect in the 2005 killing of Teresa Halbach in Manitowoc County. Halbach’s vehicle was found at the Avery Salvage Yard by searchers on the morning of Nov. 5, 2005.

The panel of judges writes, “We appreciate that Avery likely wishes us to consider this new Brady claim in the context of claims previously raised, but we must weigh that implicit consideration against those discussed above. Simply put, Avery’s appeal cannot continue indefinitely. Accordingly, this decision operates as an order denying Avery’s April 12, 2021 motion to stay and remand. If Avery wishes to raise this claim, he must file a new WIS. STAT.§ 974.06 motion with the circuit court. Pursuant to Escalona-Naranjo, Avery will need to demonstrate why he could not have previously raised this claim, including in his June 2017 motion, before the merits can be reached.”

Zellner’s filing says Thomas Sowinski, a former driver for Gannett Newspapers, delivered papers to the Avery Salvage Yard in the morning hours of November 5, 2005. In a signed affidavit, Sowinski says he witnessed Avery’s nephew, Bobby Dassey, and an older man “suspiciously pushing a dark blue RAV-4 down Avery Road towards the junkyard.”

Sowinski says he delivered papers to the Avery mailbox and turned around toward the exit. He says Bobby Dassey “attempted to step in front of his car to block him from leaving the property.”

The motion reads, “After Mr. Sowinski learned that Teresa Halbach’s car was found later in the day on November 5, 2005, he realized the significance of what he had observed and immediately contacted the Manitowoc Sheriff’s Office and spoke to a female officer, reporting everything he has stated in his affidavit. The Officer said, ‘We already know who did it.’”

Bobby Dassey was considered a star witness at the Steven Avery murder trial. Dassey told the court that he saw Teresa Halbach vehicle pull up to the driveway at 2:30 p.m. on Oct. 31, 2005. He said he witnessed Halbach, a freelance photographer assigned to photograph vehicles at the salvage yard, walk up to the door of Avery’s trailer. Bobby Dassey stated that when he left to go hunting, he saw Halbach’s RAV 4 parked in the drive way. He said when he returned, the RAV 4 was gone.

Zellner argues that the prosecution failed to disclose evidence of Mr. Sowinski’s report to the Sheriff’s Office that he had witnessed Bobby Dassey and another man moving the vehicle to the salvage yard. Zellner says that call would have destroyed the credibility of Bobby Dassey at trial or established that Bobby was involved in the murder and planted evidence to frame his uncle.

The court writes, “When Avery filed this motion, we had already twice stayed his appeal, each time because he asserted that the new claims related to those previously litigated and that it would be most expeditious to resolve them as part of the instant appeal. By the time Avery filed this new motion, however, we had already evaluated the legal and factual bases for claims already raised. We therefore were, and are, in the position to conclude that this newly raised Brady claim bears little or no relation to those claims already before us. This is, instead, a distinct issue that that the circuit court should resolve on a standalone basis through a new WIS. STAT. § 974.06 motion.”

Zellner asked the Appeals Court to stay the appeal and remand the case to circuit court so the new witness testimony can be presented before a judge.

Steven Avery is serving a life sentence for 1st Degree Intentional Homicide. The case received new notoriety after the release of the 2015 Netflix documentary series “Making A Murderer.”

Avery’s other nephew, Brendan Dassey, was also convicted of killing Halbach. He will be able to ask for parole in 2048. Dassey appealed his conviction up to the United States Supreme Court. The justices declined to hear his case. Dassey’s attorneys are now 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 considered to be low IQ. CLICK HERE for more on the Brendan Dassey request for clemency.

“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.

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