Steven Avery’s legal team files appellate brief

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Published January 12, 2024. Last updated 12:36 p.m. EST on January 16, 2024.

Chicagoland-based attorney Kathleen Zellner, legal counsel for Steven Avery, filed a motion Friday with the Wisconsin Court of Appeals-District II, seeking alternative remedies after previous requests for a new trial and evidentiary hearing were denied in August by a Sheboygan County judge.

Local counsel for Avery is attorney Steven Richards of Casco, Wis.

The basis for the previously requested hearing was that an alternate suspect was guilty of Halbach’s murder, not Avery.

According to court documents obtained the Wisconsin Law Journal on Friday, Zellner says her client is requesting a reversal of the Orders Denying Postconviction Relief and grant an evidentiary hearing; reverse the judgments of conviction and the orders denying Postconviction Relief and remand for a new trial; and grant any other relief this Court deems appropriate.

“Conducting an evidentiary hearing on the new evidence of a third party being in possession of Teresa Halbach’s vehicle is vitally important to preserve the integrity of the Wisconsin judicial system. Mr. Avery’s trial defense was that the forensic evidence used to convict him had been planted. Now a witness has placed the vehicle with all of that forensic evidence in the hands of a third party prior to that evidence being discovered,” said Zellner during an interview with the Wisconsin Law Journal Tuesday. 

“Can anyone seriously contend if a jury had heard testimony from this witness that a reasonable doubt would not have arisen in the jurors minds about Steven Avery’s guilt?,” Zellner asked. 

Zellner and Richards argue in the appellate brief that the circuit court improperly attempted to weigh Avery’s facts with speculative theories unsupported by the record rather than accepting his facts as true and determining whether they were sufficiently pled to warrant an evidentiary hearing.

An evidentiary hearing would provide Avery with the opportunity to prove his pleaded claims that he is entitled to a new trial, according to court documents.

Defense counsel further argues, “the circuit court improperly found that the materiality of Mr. Avery’s newly discovered evidence is exclusively contingent upon its satisfaction of the Denny test for admissibility of potential third-party suspect evidence.”

Avery is currently serving life in prison after being found guilty for the murder of Teresa Halbach. Halbach was murdered on Oct. 31, 2005. For the past 18 years, Avery has had a number of new criminal defense attorneys who have all been unsuccessful at his release. However, Avery’s current attorney, Kathleen Zellner, remains optimistic that new evidence will prove her client’s innocence.

Avery was the star in the Netflix series “Making a Murderer,” which originally aired in 2015. The series received criticism from the media, government officials and the general public for allegedly only telling one side of Avery’s story, revictimizing Halbach and her family, as well as incriminating law enforcement professionals.

As previously reported by the Wisconsin Law Journal, the first two episoldes of the Daily Wire series “Convicting a Murderer” aired to the general public in September 2023, telling a very different story about Avery and Wisconsin law enforcement than the award-winning Netflix series “Making a Murderer” portrayed.

For the first time, the general public learned what the Netflix original series omitted, some of which were rumors and corner bar gossip, according to legal experts.

Former defense counsel for Avery told the Wisconsin Law Journal in September that he has zero interest in watching the new the Daily Wire docuseries.

During an interview with the Wisconsin Law Journal over the summer, Dean Strang, one of Avery’s original defense attorneys, said, “I don’t need a movie that runs for 10 hours to tell me about this case. I was one of the lawyers on the case. I spent 500 hours in a courtroom over 15 months. I lived the case. I had a front-row seat. I don’t need a DailyWire docuseries to help me with that.”

“‘Making a Murderer’ left out rumors and gossip. I have even less interest in hearing about rumors and gossip. What do I care what rumors are about some person 20 years ago in Manitowoc County, Wisconsin? These people didn’t become president of the United States or an ambassador to a foreign country. I really don’t care about rumors regarding private citizens,” Strang said.

“I can assure you, there is nothing significant that happened in this trial or pre-trial proceedings that ‘Making a Murderer’ left out,” Strang said.

However, Shawn Rech, director of “Convicting a Murderer” at Transition Studios, said there were so many items cut from “Making a Murderer” it’s hard to believe there isn’t some truth in the gossip and rumors.

“There were so many of them it’s pretty hard to believe it wasn’t showing a portrait of who Avery really is,” Rech noted.

Strang disagreed.

“If ‘Convicting a Murderer’ claims ‘Making a Murderer’ omitted important inadmissible information details of the Avery’s lives, that gossip was unworthy of credit. I don’t think even Ken Kratz tried to offer that information in the actual trial. It was unsupported gossip, or unproven truth,” Strang said.

During a “Convicting a Murderer” episode, an interviewee expressly stated, “it was just bar talk. I had no proof that she said it or proof that it really did happen, it’s just what my friend told her.”

The Wisconsin Law Journal previously reached out to Netflix, Moira Demos and Laura Ricciardi — the creators of the original “Making a Murderer” series. Demos and Ricciardi did not immediately respond for comment.  Earlier this summer, Erika Masonhall, a spokeswoman for Netflix previously said, “Thanks for the opportunity, but we’ll decline to comment.”