Former law enforcement praise state’s response brief in Steven Avery case

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The state of Wisconsin filed a response brief Monday with the Wisconsin Court Appeals regarding Steven Avery’s request for an evidentiary hearing to reverse the judgments of conviction.

Wisconsin Attorney General Josh Kaul and Assistant Attorney Lisa Kumfer argued, “Avery failed to plead sufficient facts in his motion that would meet the newly discovered evidence standard even if true.”

The state further argued the Circuit Court did not err in evaluating the materiality prong of the newly discovered evidence test through the lens of Avery’s attempt to establish Bobby Dassey as a third-party perpetrator.

Former Wisconsin Department of Justice Division of Criminal Investigation Special Agent Tom Fassbender, who investigated the murder of Teresa Halbach, praised Wisconsin Attorney General Josh Kaul’s response brief.

“I thought it was very well written and covered a lot of ground,” Fassbender said during an exclusive interview with the Wisconsin Law Journal on Thursday.

Steven Avery’s former defense counsel, Jerry Butting declined to comment and deferred questions to Avery’s current legal counsel, Kathleen Zellner.

On Thursday evening, Zellner told the Wisconsin Law Journal, “We have carefully examined the State’s response and will file our reply on or before May 15, 2024.”

“We remain confident in our position,” Zellner added.

In a previous interview with the Wisconsin Law Journal, Zellner said, “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. “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. 

In response, both Fassbender and former Avery prosecutor Ken Kratz took aim at Zellner.

“It’s this guy who did it. Oh, wait that didn’t work. Let’s try the nephew,” Fassbender said, noting Zellner has listed multiple people as the guilty party and then took it back.

“It’s absolutely ridiculous to keep throwing sh*t against the wall hoping something will stick,” Fassbender said during Thursday’s interview.

Kratz went one step further: “If somebody told you what I said about her (Zellner) and they didn’t tell you she was full of sh*t you’re only getting half the message,” Kratz said.

Fassbender said, “the way Avery’s original defense counsel, Buting and Strang, demonized Wisconsin’s hard-working and honest law enforcement is reprehensible when all of the evidence pointed clearly to their client.”

Dean Strang, former defense counsel for Steven Avery responded to Fassbender’s comments.

“Like anyone else, Tom Fassbender has every right to his opinions. I defend that. As to honest law enforcement, though, I did not record on video what Tom Fassbender and Mark Wiegert did to Brendan Dassey; they did. I did not offer a silly story about finding a key in plain view on Steven Avery’s floor after several previous searches of the same area; the police did. I did not take the photographs disproving that clumsy story; they did. What Jerry and I did do was allow law enforcement officers to demonstrate by themselves how far they departed from Tom Fassbender’s ideal. Over and again, they provided that demonstration. No surprise, then, that Tom Fassbender and some others see only the evidence they think clearly supports imprisoning the wrong guys for life. Wouldn’t their sense of self-identity take a very tough blow if they acknowledged anything else?,” Strang said on Friday.

In 2017, WBAY-TV reported Steven Avery is guilty, according to a former CIA interrogator trained in detecting deception.

“We have every reason to believe that the jury was correct in finding Steven Avery guilty of the murder of Teresa Halbach,” said former CIA interrogator Phil Houston, who now runs a private sector consulting firm.

Kratz has repeatedly been critical of Zellner’s strategy to suggest innocent men are responsible for the murder of Halbach.

“Attorney Zellner named Ryan Hillegas as the real killer. A year or so after that she simply said just kidding, and dropped him as the real killer,” Kratz said during an April 2023 Facetime interview with the Wisconsin Law Journal.

“To throw out those allegations make her look unprofessional. I think it makes her look unserious,” Kratz said.

“It begs the question, will she be saying just kidding about Bobby Dassey,” Kratz asked.

“It’s getting old. She keeps trying the same thing and is continually unsuccessful,” Kratz added.

In Monday’s brief obtained by the Wisconsin Law Journal, the state argued, “Avery’s newly discovered evidence claim was multilayered, requiring application of both Edmunds and Denny. …  To require a hearing on his Denny claim, Avery had to provide sufficient facts to establish the third party had motive, opportunity, and that evidence directly connects them to the perpetration of the crime.”

“Avery failed to provide any facts that would establish that Bobby Dassey had a motive for the murder. … The Circuit Court properly found that Avery failed to plead facts showing that Bobby Dassey had the opportunity to commit this crime or stage this scene,” the state added in the response brief.

In conclusion, the state said, “There was no error in relying in part on Brendan Dassey’s confession to reject Avery’s purported Denny defense. (Avery’s Br. 41–42.) The fact that Brendan both confessed and implicated Avery is part of the record, and Brendan was convicted of this crime regardless of the fact that he wasn’t “forensically linked” to it. (Avery’s Br. 41–42; R. 179:172–86.) It is a fact Avery must account for to show a legitimate tendency Bobby committed the crime no matter

“It’s going to take more than speculation for her (Zellner) to get a new trial,” Kratz said.