Madison, Wisconsin — The Wisconsin Dept of Justice is caught in multiple dilemmas as it continues to block a hearing for the wrongfully convicted Steven Avery, framed for the 2005 murder of Teresa Halbach.
For bad measure, Mark Wiegert, (sergeant (and now Sheriff) at the Calumet County Sheriff's Office), and Tom Fassbender (Wisconsin Division of Criminal Investigation investigator), goaded another innocent, Brendan Dassey, to mutter words portrayed as admission of guilt, supporting a lurid, contrived tale of Avery's guilt in this malicious prosecution of Avery, (Ferek, Appleton Post-Crescent). Former Attorney General J.B. Van Hollen (R) (2007-2015) announced on May 2, 2008, Wiegert and Fassbender, received the Meritorious Service Award from the Wisconsin Association of Homicide Investigators, (Wisconsin Dept. of Justice).
This is Wisconsin law enforcement. No cop, retired or active, speaks out against the bad faith and routine depravity.
Wiegert and Fassbender are typical Wisconsin cops. Would you work to convict someone whom you knew be innocent?
Kathleen Zellner wouldn't.
Zellner — who represents the wrongfully convicted Avery featured in the Making a Murderer docuseries — filed an explosive motion Jan 24, 2019 seeking a hearing because the Calumet County Sheriff's Office secretly transferred evidence, 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.
Zellner's Jan 24 motion in state appellate court seeks an order to remand, send back, the case to circuit court for the hearing.
The Jan 24 motion, followed by the state's Jan 29 reply motion and Zellner's Feb.1 response, is a potentially devastating development for the state because Zellner shows either the state of Wisconsin gave the Halbach family animal bones in 2011 and told the family the bones were the remains of Teresa Halbach; or the state conspired to illegally destroy exculpatory evidence.
The post-conviction news draws national headlines.
From Kelly Wynne in Newsweek:
The trial of Avery was a feast of lies and perjury committed by cops.
Bones that could have been tested for DNA in the case of Steven Avery have been returned to Teresa Halbach’s family, though it’s unclear if the bones were hers. Wrongful convictions attorney Kathleen Zellner filed a motion to have the bones tested in December, but that motion was quickly denied.
Zellner filed a second motion Thursday, which asserts the state violated Avery’s 14th amendment rights by denying DNA testing and failing to inform Avery’s prior legal council that the bones would be returned to Halbach’s family. The motion argues this amounts to an attempt by the state to 'destroy evidence' in the case.
The motion claims the bones were returned to the Halbach family in September 2011 at the Wieting Funeral Home by the Calumet County Sheriffs Department.
As seen on Making A Murderer, the bones in question were found in the Manitawoc gravel pit, off of the Avery property. Much of Avery’s conviction was based on forensic evidence found on his property, according to the motion. Zellner explained if Halbach's bones were found in another location, it would negate the state’s arguments about how and where Halbach was killed, possibly clearing Avery’s name. The bones have never been tested for DNA.
The decision to give the bones to the Halbach family is in violation of Wisconsin’s 'preservation statute,' Zellner told Newsweek.
'We are very curious to hear the State’s explanation for violating the Wisconsin preservation statute,' she said. 'No notice was given to Avery or his attorneys at the time. The State claimed at trial there was no evidence the quarry bones were human, so why were they given back to the Halbachs? Giving the bones to the Halbachs confirms the State’s belief that not only were they human—they belonged to Teresa Halbach. The State cannot have it both ways. The destruction of material evidence is a serious constitutional violation.'
The Appleton Post-Crescent reports:
The attorneys argued that the appeal should be temporarily halted so the case can be sent back to the circuit court to determine if Avery's due process rights were violated. The motion came a little more than a week before a deadline for Avery's attorneys to file a brief before the Wisconsin Court of Appeals.In a state other than Wisconsin, this misconduct and the crusade against Steven Avery would have resulted in multiple criminal charges against dozens of corrupt cops.
A spokesperson with the Wisconsin Department of Justice did not immediately respond to a request for comment.
According to Avery's attorneys, the state violated the law by failing to preserve certain suspected human bone evidence and failing to notify Avery and his attorneys of the state's intent to destroy it.
At trial, the state told the jury that all of the incriminating forensic evidence was in close proximity to Mr. Avery's residence and that bones found in his burn pit were the most important evidence against Avery, they wrote in the motion.
Jerome Buting, one of Avery's defense attorneys at trial, countered that bones found in the nearby Manitowoc County gravel pit were also important, but were glossed over by then-Calumet County District Attorney Ken Kratz because they didn't fit with the state's theory of Avery's guilt.
Kratz dismissed defense attorneys' claim that those bones were human, saying it had not been scientifically verified, Zellner and Richards wrote in their motion.
However, by giving the bones back to Halbach's family, the state implicitly admitted that they were human and belong to Halbach, they wrote.
The identification of the Manitowoc County Gravel Pit bone fragments as Ms. Halbach's is material because it is apparently exculpatory and potentially useful in proving the murder and mutilation did not occur in a location tied exclusively to Mr. Avery, Zellner and Richards wrote. No reasonable trier of fact could conclude that, if Mr. Avery murdered and mutilated Ms. Halbach in the Manitowoc County Gravel Pit, he would move her bones from the gravel pit to his own burn pit and thereby incriminate himself.
Notes attorney Jerome Buting, Avery's 2005 co-counsel, uninvolved in the post-conviction litigation:
Cops have many secret weapons, one of which is the Lautenschlager-Kaul family.In layman’s terms: State wants to avoid a hearing on this where they have to explain why they gave to Halbach family quarry bones that KK claimed at trial were non-human. KZ wants to prove with new DNA technique they were TH, as further proof she wasn’t burned at SA’s property. https://t.co/kXzjULsgFm— Jerome Buting (@JButing) January 31, 2019
After Steven Avery was exonerated for the first (1985) wrongful conviction, "Lautenschlager, Wisconsin's Attorney General [2003-07] in 2003, directed the Wisconsin Department of Justice to investigate the merits of the 1985 wrongful conviction of Steven Avery. The DOJ released an 18-page report on Dec. 17, 2003, finding 'there is no basis to bring criminal charges or assert ethics violations against anyone involved in the investigation and prosecution of this case,'" (Ferak, Appleton Post-Crescent).
Lautenschlager is the current Attorney General Josh Kaul's (2019-present) late mother.
Kaul inherited his mother's taste for defending wrongful convictions and police misconduct.
Or, maybe the Oshkosh-Fond du Lac family drank too much of Lake Winnebago's increasingly polluted waters. One wonders if Lautenschlager told her son the truth about she did, and warned Kaul to keep the bad work top secret.
In any event, now Kaul is pursuing a reckless and hostile battle against Avery in post-conviction litigation with the mission of drowning out truth at any cost: Even humiliating a murder victim's family and mocking an innocent man's effort to prove what Kaul knows is a frame-up.
Corrupt Wisconsin law enforcement has met a determined adversary.
Writes Zellner in part:
The State should not benefit from concealing a report, failing to give notice, and facilitating the destruction of biological evidence. The State's opposition to Mr. Avery's motion is tantamount to asking this Court to sanction a rule where "prosecutor may hide, defendant must seek." Banhs v. Drethe, 540 U.S. 668, 696 (2004). Such a rule "is not tenable· in a system constitutionally bound to accord defendants due process." Id. After all, the State, in its response to Mr. Avery's motion, makes no effort to deny the due process violations Mr. Avery alleges, i.e., that the State concealed a police report, failed to give statutorily-mandated notice to Mr. Avery and his attorneys of its intent to destroy biological evidence, then facilitated the destruction of the same evidence. The State should not now reap the benefit of its past statutory and due process violations. Such an outcome would contravene the sense of basic fairness inherent in our justice system. (p.7)
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Yes.
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