|Wisconsin's biological evidence preservation law is clear:|
" ... Except as provided in sub. (3), if physical evidence
that is in the possession of a law enforcement agency
includes any biological material that was collected
in connection with a criminal investigation
that resulted in a criminal conviction, delinquency
adjudication, or commitment under s. 971.17 or 980.06
and the biological material is from a victim of the
offense that was the subject of the criminal investigation
or may reasonably be used to incriminate or exculpate
any person for the offense, the law enforcement agency
shall preserve the physical evidence until every person
in custody as a result of the conviction, adjudication,
or commitment has reached his or her discharge date."
The case is State v. Steven A. Avery, Appeal Number 2017AP002288, brought by Steven Avery, featured in the Emmy-winning Making a Murderer.
The prosecution led by Wisconsin Attorney General Joshua Kaul (D) and his legal team—including Mark Williams, Asst Attorney General and Special Prosecutor Thomas J. Fallon, and Special Prosecutor Norman Gahn—have not challenged the fact that law enforcement destroyed evidence in violation of state statute.
In fact, Department of Justice Special Prosecutors Thomas J. Fallon and Norman Gahn plotted to destroy evidence in 2011, and now Attorney General Joshua Kaul has both Fallon and Gahn defending the wrongful prosecution of Avery—discredited work of the disgraced sex offender and ex-Calumet County District Attorney, Ken Kratz—who foisted a fraud upon two separate juries arguing two conflicting sets of facts to convict both Steven Avery and Brendan Dassey.
This is a bizarre development in which two DoJ attorneys break the law, represent the state in post-conviction litigation, and then refuse to engage the arguments pleading the facts and implications of their unlawful conduct.
The legal strategy of the State protecting the conviction of a man whom they know to be innocent is to present a serpentine, internally inconsistent procedural argument that does not address the merits of the willful and unlawful destruction of evidence and the Due Process implications of this lawless state action committed in 2011 (Avery legal filings).
Worse, the State DoJ is continuing its effort to obstruct attorney Zellner, while Judge Angela W. Sutkiewicz continues her strategy of running legal interference on the circuit court level to whom the case was sent back by a state appellate panel on Feb 25, 2019.
This is a spectacle of lawless Wisconsin law enforcement that is largely blacked out in the Wisconsin media.
As Amelia McDonell-Parry reports in Rolling Stone Magazine in Feb 2019:
Attorney Kathleen Zellner has filed a new letter with the Wisconsin Court of Appeals on behalf of her client, Steven Avery, accusing the Attorney General’s Office of 'trying to deceive' her and the Court about the status of key forensic evidence in the Making a Murderer case. Zellner’s letter, submitted on February 13th, is actually her second letter to the court in as many days; both letters supplement a January 24th motion that accused prosecutors of violating state law and Avery’s constitutional rights by destroying evidence. Zellner tells Rolling Stone that she has since learned that a key piece of evidence—suspected human pelvic bone fragments, which could exonerate her client—may have been destroyed as well. And, she says, prosecutors are 'obstructing' her efforts to find out.
According to a newly discovered police report and updated evidence control ledgers, on September 20th, 2011, 'human bone' fragments recovered during the investigation were removed from the Calumet County Sheriff’s Department’s evidence control unit. They were transferred to a local funeral home, which then 'returned' the bones to the family of murder victim Teresa Halbach.
According to an affidavit from Avery’s former appellate attorney Suzanne Hagopian, the State never informed defense counsel of its intention to effectively 'destroy' key case evidence by giving it to the victim’s family. Wisconsin law requires law enforcement to preserve 'any biological material' and 'physical evidence' until the convicted defendant has been discharged from prison. Avery is serving a life sentence without the possibility of parole, and the Wisconsin statute protects his right to retain evidence that 'may reasonably be used to incriminate or exculpate any person' in Halbach’s murder.
Calumet County Sheriff’s Department Deputy Jeremy Hawkins states in the 2011 police report that Sgt. Investigator Mark Wiegert, and attorneys Thomas Fallon and Norm Gahn, were involved in removing the bones from evidence control. Wiegert was a lead investigator in the case, while Fallon and Gahn were on the trial prosecution team. Fallon is now an Assistant Attorney General, and he and Gahn continue to represent the case on behalf of the state of Wisconsin as Avery appeals his conviction. Rolling Stone sent Fallon and Gahn a detailed request for comment on the claims outlined in Zellner’s court filings; a spokesperson for the Attorney General’s Office replied to say that they 'cannot comment on ongoing litigation.'
The September 20th, 2011 police report, which Zellner says she received in December from an anonymous third-party, has exposed a lot more than just a violation of state law. A thorough assessment of updated evidence control ledgers and crime lab unit reports (attached as exhibits to her four most recent court filings and reviewed by Rolling Stone) indicates that the 'human bones' recovered during the investigation were more plentiful than had ever been conveyed to the defense. And many of the bones that were returned to the Halbach family in 2011 were collected from locations that prosecutors claimed had nothing to do with her murder.
According to police and prosecutors, Avery fatally shot Halbach in his garage, dismembered and then burned her body in a pit next to his trailer. Investigators recovered charred human remains, namely bone, from Avery’s burn pit and a burn barrel. However, there was also evidence of a second burn location just over half a mile from Avery’s trailer. The Manitowoc County quarry is about a quarter mile from what used to be a back entrance to the salvage yard; that’s where investigators recovered another burn pile containing possible human pelvic bone fragments.
Avery’s trial attorneys theorized that the quarry bones were evidence that Halbach’s body was burned somewhere other than the Avery property. Prosecutor Ken Kratz, on the other hand, downplayed the possibility that they were human, telling the jury, 'These bones in the quarry, I’m going to take 20 seconds to talk about, because the best anybody can say is that they are possible [sic] human.'
Zellner has wanted to get her hands on the suspected human pelvic bones since November 2016, when the Wisconsin Circuit Court ordered new scientific testing on certain items of evidence. In September 2017, Assistant Attorney General Fallon agreed to allow a 'microscopic examination' of the pelvic bone fragments to determine whether they’re human. For Zellner, this examination is just the first step toward proving a longtime defense theory that Halbach was killed, dismembered and burned at another location.
'[Avery’s trial attorney] Jerry Buting even said, if her body parts are over in the quarry, then Steven Avery’s innocent because the prosecution said she never left the property,' Zellner says. 'Plus, he’s not going to bring the bones from the quarry and plant them in his burn pit!'
However, soon after the parties agreed to examine the bones, the circuit court [Judge Angela W. Sutkiewicz] issued a seemingly hasty decision denying Avery’s petition for post-conviction relief, despite the fact that several court-ordered tests were still pending. Examining the bones has been put on hold, pending a ruling by the Court of Appeals.
State Appellate Court will make Steven Avery free, observers believe.
What is unclear at this point in litigation is how far Wisconsin law enforcement, led by Wisconsin Attorney General Joshua Kaul (D), will go to protect an unlawful and wrongful conviction.