|Is the government required to follow the law when the state|
investigates, and litigates against a defendant? Yes,
Steven Avery argues in a 135-page brief filed today in
Wisconsin appellate court. Avery argues the law enforcement
team that conspired to destroy biological evidence engaged
in an illegal scheme that runs afoul of the effect of two
critical cases protecting innocents. Reads the brief in part,
"[T]e Youngblood test examines the government’s role
in the circumstances that led to the destruction of
the evidence. 488 U.S. at 56–58. If a criminal
defendant can satisfy either test, then a court
will rule the destruction of evidence was a violation
of due process and reverse the defendant’s conviction.
Youngblood, 488 U.S. at 54; Trombetta, 467 U.S. at 484."
The 135-page appeal asserts numerous instances of law-breaking committed by Wisconsin law enforcement including DNA evidence destruction, evidence concealment, myriad Brady violations, and deprivations of Due Process and Constitutional rights that helped to convict and illegally block post-conviction litigation efforts of a man whom millions world-wide believe to be innocent.
The case is State of Wisconsin v. Steven A. Avery, Appeal Number 2017AP002288.
Steven Avery is featured in the Emmy-winning documentary, Making a Murderer.
The text of the appeal is posted on social media and the site, WorkwithKZ, and can be found here as well.
Attorneys Kathleen T. Zellner and Steven G. Richards are Mr. Avery's attorneys.
The bizarre post-litigation case includes a flaunting of Wisconsin's evidence preservation law in a law enforcement scheme that saw the remains of murder victim Teresa Halbach illegally transported to the Halbach family in 2011 by Calumet County Sheriff Deputy Jeremy Hawkins, Sergeant Investigator Mark Wiegert,and DoJ Attorneys Thomas Fallon and Norman Gahn.
Chutzpah and Wisconsin Law Enforcement
Fallon and Gahn helped to prosecute the Avery case in 2007, then in 2011 destroyed biological evidence in their scheme, presenting to the Halbach family numerous bones as Teresa Halbach's remains.
Now, Fallon and Gahn argue in state appellate court that since the evidence they destroyed is forensically worthless because of contamination, its exculpatory value to defendant Avery can no longer be ascertained.
Fallon and Gahn argue that the evidence they helped destroy was "inexplicably released" from the Calumet County Sheriff’s Department’s evidence control unit in their March 29, 2019 legal filing, (p 13).
"Inexplicably released" is a disingenuous characterization for the illegal destruction of evidence that not only implicates Fallon, Gahn and Wiegert, but also is a clear violation of the Due Process Clause, and is a Brady violation under Wisconsin judicial doctrine.
Avery in his brief today argue that Wisconsin's "DNA evidence preservation statute presumes that every violation constitutes 'bad faith,'" (See pp 128-1320.)
The brief is also critical of the lower circuit court's handling of the post-conviction litigation by Judge Angela W. Sutkiewicz, arguing the judge abused her discretion in several instances, and that her reasoning on several points is deeply flawed.
Abusing discretion. That's legal language for grave misconduct that in this case prevents Avery from receiving a fair hearing in post-conviction litigation.
Brady ViolationsJudge Angela Sutkiewicz is blasted in Steven's brief as "abusing [her] discretion" many times. Abusing discretion is reaching conclusions against reason and law — blocking a fair trial. AS reached predetermined results, then used slipshod reasoning to support her order.— Michael Leon (@mal644) October 17, 2019
Violations of the Brady Rule, prosecutors’ duty under the Brady v. Maryland (1963) case to turn over to the defense exculpatory evidence are "epidemic," to borrow a term from an opinion from former Judge Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit. (Cassens-Weiss, ABA Journal).
Brady motion violation is, and why the state's Brady violations should also result in vacating this wrongful conviction in this case, as is argued in the brief.
The state of Wisconsin's failure to disclose exculpatory evidence in its litigation against Avery should result in a reversal or a vacating of the 2007 conviction.
In Feb 2019, notes the Evidence Prof Blog, the burden is now on the state in Wisconsin to follow the dictates of Brady after a powerful opinion in State v. Wayerski, 2019 WL 471276 (Wis. 2019):
[T]he Supreme Court of Wisconsin issued an opinion that might have huge implications for the Brady doctrine. Under that doctrine the prosecution has an affirmative obligation under the Due Process Clause to disclose material exculpatory evidence to the defense. In its opinion in State v. Wayerski, 2019 WL 471276 (Wis. 2019), however, the Supreme Court of Wisconsin held that Wisconsin courts had shifted the focus from the State's misconduct to the defense's due diligence and issued a course correction.
To read the State's position in State of Wisconsin v. Steven A. Avery, misleading the defense, concealing evidence and destroying evidence are effectively not a matter of Constitutional importance.