Steven Avery’s attorney Zellner files ‘bombshell’ Manitowoc motion

Listen to this article

Editors note: a newer article detailing prosecutorial missteps was published on April 16, 2024. Steven Avery prosecutor Kratz admits ‘mistakes were made’ (wislawjournal.com)

Published March 15, 2024 at 10:30 a.m. CDT.

On eve of the Ides of March, Chicagoland-based attorney Kathleen Zellner, legal counsel for Steven Avery, filed papers with the Circuit Court of Manitowoc County in what former prosecutor Ken Kratz described as “a bombshell motion.”

According to court documents obtained by the Wisconsin Law Journal on March 14, Zellner is asking the court for a second order to allow Avery to conduct post-conviction testing for touch DNA evidence in Teresa Halbach’s vehicle. Avery was convicted of murdering Halbach.

During an interview with the Wisconsin Law Journal on Thursday, Zellner said, “Guilty individuals do not want DNA testing, but innocent ones do.”

Kratz called defense counsel’s tactics “deceptive” during an exclusive interview with the Wisconsin Law Journal on Thursday night.

“Sometimes all you can do is tilt your head at such stupidity, or more likely deception.  Since DOJ is too polite to call this person on her B.S., I guess it falls to me once again, Kratz said.

In response, Zeller said, “In my almost 30 years of handling wrongful conviction cases I have never had a post-conviction motion for DNA testing denied particularly when the defendant pays for the testing.”

Addition defense funds

In Avery’s motion, Zellner noted, “counsel now has the financial resources, donated by Mr. Avery’s supporters, to conduct additional testing on items from Ms. Halbach’s vehicle that have never
been tested previously for touch DNA, Mr. Avery is requesting, pursuant to the 2007 DNA Order entered by Judge Willis, that he be allowed to do such testing.”

According to Zellner, the untested items of evidence that Avery requests to conduct testing on are:

• the driver and passenger seats;
• the dashboard;
• the near shift;
• the steering wheel;
• the interior and exterior hood latch release;
• the broken turn signal light (Item A15);
• the hood prop;
• the battery cable;
• the battery;
• the rear cargo area;
• interior and exterior cargo door; and
• the lug wrench and the license plate.

When asked by the Wisconsin Law Journal what in particular was misleading, Kratz responded, “Attorney Zellner’s habit of arguing facts that are either false or intentionally misleading. This includes insisting that having recovered the victim’s blood in the back of the cargo area must mean an act of violence occurred in that area.  What about (Brendan) Dassey explaining he and his uncle threw her body there after she was killed? Isn’t that evidence?” Kratz asked.

New Evidence

According to Zellner, in addition to performing the touch DNA testing to identify any third party to the murder of Halbach, specific evidence has developed directly connecting Dassey to being in possession of the RAV-4 and moving it onto the Avery property on Nov. 5, 2005.

Zellner argues Avery is entitled to mandatory testing of Halbach ’s vehicle pursuant to the prior court order entered on April 4, 2007.

However, Kratz calls the innocence claim “fraud.”

“And while we are on the subject of potential innocence fraud, ask Attorney Zellner if you find evidence that would exonerate Mr. Avery as a result of your exoneration motions, who would represent him in any future multimillion dollar federal civil lawsuits? I bet I know the answer,” Kratz said.

Meanwhile, Zellner notes certain relevant evidence collected in his case were never subjected to prior touch DNA testing.

“If these items are tested, they could conclusively demonstrate Mr. Avery’s innocence,” Zellner said in court documents.

Kratz contends Avery is guilty.

“Like all citizens watching the nation’s best exoneration lawyer continue to get her briefs handed to her, over and over, I’ve got to wonder when she finally admits all the evidence did, and still does, point to her client, Steven Avery. Time to show some self respect,” Kratz added.

Zellner maintains her client’s innocence and further argued Avery’s request satisfies all the elements of Wis. Stat § 974.07.

“Because Mr. Avery has met all the requirements of § 974.07, this Court should order all of the above-described testing,” Zellner wrote in court documents.

Local counsel for Avery, Steven Richards of Casco, also signed off on the March 14, 2024, motion.

As previously reported by the Wisconsin Law Journal, the basis for the previously requested hearing was that an alternate suspect was guilty of Halbach’s murder, not Avery.

January’s motion was filed 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.

According to court documents previously obtained the Wisconsin Law Journal in January, Zellner said 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 on 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 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 episodes 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.”