Steven Avery's Win Gets Critical Court Hearing; But State Law Enforcement Conduct May End Up on Trial

Wisc Court of Appeals ruling takes under-stated jab at DoJ

Update: Anticipated County Circuit hearing was never ordered.

Update: See John Ferak's latest for updates on legal developments calling into question broad swaths of Wisconsin law enforcement.

Updated - Madison, Wisconsin — Kathleen Zellner represents the wrongfully convicted Steven Avery featured in the Making a Murderer docuseries.

Zellner filed an explosive motion Jan 24, 2019 seeking a hearing in circuit court because the Calumet County Sheriff's Office secretly transferred evidence, purported to be the remains of a murder victim, Teresa Halbach, to private custody in 2011, in violation of state statutes that govern preservation of physical evidence collected, subject to criminal investigations.

Yesterday, Zellner won her hearing.

The evidence Zellner and advocates have complied implicates multiple levels of Wisconsin law enforcement, widely regarded as guilty of an ad-hoc scheme to frame Steven Avery in 2005.

Wisconsin law enforcement has a partner — the Wisconsin Dept of Justice working to cover up crimes of law enforcement, and avoid the hearing ordered yesterday.

The DoJ has not performed ethically in post-conviction litigation. In fact, DoJ has been demonstrated as unethically scheming to mislead in litigation.

There is a significant point made in the Feb 25 Court of Appeals ruling that speaks to the DoJ's conduct.

Reads the Feb. 25 Court ruling in part:

The State’s objection does not address the merits of Avery’s claimed statutory and constitutional violations, and it has not responded to Avery’s supplemental filings alleging the possible destruction of evidentiary items which, it appears, the parties previously agreed to preserve.

The State suggests that the appeal is languishing and that if Avery wishes to pursue new claims outside the scope of the WIS. STAT. § 974.06 postconviction orders presently on appeal, he could dismiss the pending appeal, or wait until its conclusion to file his new claims. As to the former, Avery understandably disagrees, aware that dismissing this appeal will preclude review of the underlying orders entered to date. (emphasis added)

The State previously suggested to the Court in its Dec. 28, 2018 filing that Avery and Zellner drop their appeal without the state ever having "admitted or disclosed that it had given the bones back to the Halbach family in 2011 without notice to Mr. Avery or his counsel," notes Kathleen Zellner her Feb. 1 Reply filing.

The appellate court took Zellner's point.

Writes Zellner in part:

The State's response conveys an attitude of impunity for its past actions of withholding exculpatory evidence and its current action of continuing the concealment of its destruction of potentially exculpatory or useful evidence. ...

The State wants this Court to overlook the undisputed fact that 2 weeks ago, on December 28, 2018, when it filed its response to Mr. Avery's request for new DNA testing of the bones from the Manitowoc Gravel Pit, it never once admitted or disclosed that it had given the bones back to the Halbach family in 2011 without notice to Mr. Avery or his counsel. (Plaintiff-Respondent's Response in Opposition to the Petition to Stay the Appeal and Remand this Case to the circuit court, December 28, 2018, pp. 1-8). Instead, the State carried on its charade of concealment by claiming that Mr. Avery could voluntarily dismiss his pending appeal. (pp. 1,2)

So, the Court of Appeals agreed with Zellner.

Now, in layman’s terms the state has "to explain why they gave to Halbach family quarry bones that KK [ex-Distict Attorney Ken Kratz] claimed at trial were non-human. KZ [Kathleen Zellner] wants to prove with new DNA technique they were TH [Teresa Halbach], as further proof she wasn’t burned at SA’s [Steven Avery's] property," (Twitter, Atty Jerome Buting, former trial counsel to Steven Avery, uninvolved in post-conviction litigation).
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The Wisconsin Department of Justice does not want to appear in Sheboygan County Court, the jurisdiction to which the case has been sent back, to explain in a public hearing why the state violated state law in giving likely exculpatory evidence to the family of a murder victim.

But the DoJ has other trouble.

On Feb. 13, 2019, Mark Williams and Thomas J. Fallon, attorneys with the Wisconsin Dept of Justice, were caught red-handed continuing their pattern of lying and obstruction.

Red-handed as in DoJ co-counsel Williams attempted to phone DoJ Asst Attorney General Fallon on Feb. 13, and instead accidentally phoned Steven Avery's post-conviction attorney, Kathleen Zellner, and left a voicemail.

In Williams' voicemail message, Williams contradicted the DoJ's numerous assurances made since 2016 about the status of critical pelvic bones that Zellner wants to test with advanced DNA analyses.

Listen to the voicemail because it appears more deceitful and conniving than the transcription.

The voicemail is transcribed below:

Hi, Tom. This is Mark Williams. Um, I'll send you an email later today, but I don't think we should do anything or respond to her [Zellner] at all until tomorrow, uh, when we look into the bag and-and see exactly the pelvic bones are in there or not. Um, so I-I would not respond, uh, until we look into the bag, uh, tomorrow morning and then we can talk about it, uh, before we send a response. Thanks a lot. Bye.

The state has assured atty Zellner and the Court since 2016, that the state has possession of the pelvic bone, and now atty Williams is caught saying, he doesn't know.

There has been no explanation made public by the DoJ why they were telling the Court and Zellner one thing, and secretly telling each other the opposite.

Zellner did not hide her contempt for the DoJ's conduct in her filing of Feb. 13.

As the record of misconduct of police and prosecutors mounts, advocates are optimistic and Kathleen Zellner keeps pleading her case in legal filings.

SA’s DREAM OF FREEDOM is a NEW REALITY as COA lets us reveal all the State’s BAD FAITH, DESTRUCTION & SUPPRESSION of evidence-misdeeds cannot be undone. State’s old way of doing business is OVER. #WreckingCrew #WorkWithKZ #TruthWins #Losers=Guilters #KratzRatzShipSinks

— Kathleen Zellner (@ZellnerLaw) February 26, 2019

Concludes attorney Jerome Buting, commenting on the appellate court's ruling:

It’s smack-down of State’s snotty, disingenuous suggestion that KZ could just dismiss this appeal. “Avery understandably disagrees, aware that dismissal of this appeal will preclude review of the underlying orders entered to date.” This protects existing appeal.#MakingaMurderer https://t.co/IPpTk1WXDA

— Jerome Buting (@JButing) February 26, 2019