MANITOWOC, WI (WTAQ-WLUK) – Steven Avery’s attorney is once again blaming an alternate suspect for the murder of Teresa Halbach, saying that Avery was framed by the state’s “star witness.”
Avery is serving a life sentence for the freelance photographer’s 2005 murder. Avery’s nephew Brendan Dassey was also convicted. Their cases received worldwide attention with the 2015 release of the Netflix series “Making A Murderer.”
While Dassey has no appeals pending — his latest appeal was rejected by the U.S. Supreme Court in 2018 — Avery has continued to file a series of appeals and post-conviction motions. Attorney Kathleen Zellner’s 483-pages of Avery’s latest post-conviction murder as well as supporting documents, were filed earlier this week.
On Thursday, she has released a 46-page response to the state’s last brief, which was filed in November, in which she details her reasons for why Avery should be given an evidentiary hearing or a new trial.
Zellner writes that Avery has “powerful new evidence” that shows someone else had the opportunity and direct connection to murdering Halbach. FOX 11 is not naming the alternate suspect, as no charges have been filed.
And while prosecutor’s call Avery’s theory “full of speculative leaps,” Zellner calls the state’s argument “implausible at best.”
Zellner is pushing for an evidentiary hearing so that the court can hear from an eye witness who says they saw this alternate suspect with Halbach’s vehicle, which Zellner claims was then used to plant evidence against Avery.
Avery will not be given an evidentiary hearing, though, unless he meets the Denny standard.
The standard requires a defendant meet three criteria before bringing forward evidence that a third party committed the crime. The Denny standard says that the defendant must show “a legitimate tendency” that the third party committed the crime; Zellner says this boils down to motive, opportunity and direct connection to the crime.
Zellner calls the new evidence overwhelming for proving the alternate suspect had the opportunity and a direct connection to Halbach’s murder. About motive, though, she writes:
As part of its obfuscation strategy, the State attempts to impose an impossible burden on Mr. Avery, not required by Wisconsin case law, to prove with substantial certainty that [the alternate suspect] had the motive to murder Ms. Halbach.
However, Zellner does suggest a motive, saying that the state fails to consider that the motive “started as a sexual assault that turned into a murder.”
To establish this motive, Zellner again calls for an evidentiary hearing so that the court can review pornography searches found on the computer of the Dassey family.
She says there are hundreds of searches, as well as deleted searches, for violent pornography that includes stabbing, shooting and fire. She argues that the pornographic searches display a “fasciation with death and mutilation” and are “‘undeniably probative of a motive, intent, or plan to commit a vicious murder’” — a standard cited from Dressler v. McCaughtry.
Zellner writes:
To make a complete and thorough record of who made the searches, why those searches were made, and who deleted specific searches, there must be an evidentiary hearing that consists of the testimony from the occupants of the Dassey household who can answer these questions for the Court. It is not possible for this Court to determine, without an evidentiary hearing, who conducted the searches of the pornography and who attempted to delete the pornography after the murder of Ms. Halbach and before the trial of Mr. Avery.
But she says that Avery is relying more on the other two facets of the Denny standard, saying that motive is “the lesser of the three standards when the other two are so strong.”
Zellner says that the state is also demanding a higher standard of opportunity to be established than Wisconsin case law requests. Rather, she says the state is relying on Kansas case law, requiring the evidence connecting the third party to the crime be “substantial” rather than Wisconsin’s standard of simply establishing the third party was at the crime scene.
Additionally, Zellner puts the location of the crime scene into question, saying there is no evidence that the crime occurred in Avery’s garage, as the state says. Zellner also says that Avery’s forensic fire expert has determined that no human body was burned in the Avery burn pit as was originally thought before Avery was acquitted of burning Halbach’s body.
Regarding the connection to the alternate suspect and Halbach’s vehicle, Zellner says the state argued that this man was trying to cover up for Avery.
The State’s theory is totally nonsensical because [the alternate suspect] was the primary witness who testified against Mr. Avery. He was not trying to help Mr. Avery; he was trying to frame him […] If [the alternate suspect] was an accomplice, he was the worst accomplice ever in a murder case. He made a much better star witness for the prosecution, helping to convict Mr. Avery while saving himself.
In response to the state saying that “Avery’s defense theory has changed dramatically since the trial,” Zellner counters,
The State fails to acknowledge that because the trial court barred introduction of third party Denny suspect evidence in Mr. Avery’s trial (obviously prior to the discovery of the violent searches and the [eye witness] evidence), Mr. Avery’s trail defense counsel did not have the ability to suggest that persons other than law enforcement officers had access to bloody bandages, bloody towels, and blood drips that came from Mr. Avery’s pre-existing finger injury.
Zellner says the alternate suspect had access to all the forensic evidence that was used against Avery, including his blood found in Halbach’s car and his fingerprints on the hood of her car.
And if the eyewitness testimony is found credible in an evidentiary hearing, Zellner says “all of the forensic evidence used to convict Mr. Avery is now placed his [the alternate suspect’s] hands.”
With her argument that Avery was framed by the alternate suspect who allegedly had access to his DNA and was seen driving Halbach’s vehicle, Zellner requests Avery be granted an evidentiary hearing, a new trial and “the requested relief.”
Sheboygan County Judge Angela Sutkiewicz is currently assigned to the case. No hearings have been scheduled. The judge can either issue a decision based on the written arguments, which have been submitted, or she could schedule a hearing as Avery has requested.
