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In this March 13, 2007 file photo, Steven Avery listens to testimony in the courtroom at the Calumet County Courthouse in Chilton, Wis. A lawyer is asking for a new trial for Avery, a Wisconsin man convicted in a case profiled in the "Making a Murderer" Netflix series. Attorney Kathleen Zellner filed a document Wednesday, June 7, 2017, claiming Avery's conviction was based on planted evidence and false testimony. (Photo: AP/Morry Gash, Pool, File)

The current post-conviction counsel of convicted murderer Steven Avery, the subject of the popular Netflix documentary series “Making of a Murderer,” filed a motion last week asking for a new trial, arguing that Avery didn’t receive a fair trial in 2007 due to ineffective counsel, failure of the state to disclose evidence and prosecutorial misconduct. Zellner also argues that new evidence, including a new analysis of a bullet involved in the case, and a “brain fingerprinting” test conducted on Avery, are cause for Avery to be retried in the case. Zellner published 221 pages of her 1,272-page motion on her website, along with 10 experts’ affidavits referenced in the motion.

The Murder

Avery was convicted in 2007 of first-degree murder in the 2005 killing of Teresa Halbach, a 25-year-old photographer, in Manitowoc County, Wisconsin. Halbach disappeared on Oct. 31, 2005, and her burned, fragmented skeletal remains were discovered in a burn pit near Avery’s home. Additionally, Halbach’s vehicle—a RAV-4—was found at an auto salvage owned by Avery’s family, and contained drops of blood that matched Avery’s DNA. Halbach had been at the Avery property earlier that day to photograph a car Avery’s sister was planning to sell in AutoTrader magazine.

Avery and his then-16-year-old cousin Brendan Dassey were both convicted in the murder after Dassey confessed to raping, killing and mutilating Halbach—Dassey’s conviction was overturned in 2016 after the mentally challenged teenager’s confession was determined by a judge to be unconstitutionally coerced.

Ineffective Counsel

Zellner’s motion argues that Avery is entitled to a new trial in part due to ineffective assistance from his trial defense counsel, Jerome Buting and Dean Strang. She lists over two dozen “failures” by the pair, including failure to sufficiently investigate certain aspects of the case and failure to present experts to testify on a number of claims.

One of these claims is that Avery’s blood in the RAV-4—which Buting and Strang argued was planted by police after being taken from an evidence vial from his previous rape case—was actually planted by the real killer, from blood Avery dripped into his sink while bleeding from a cut. An affidavit produced for Zellner by blood pattern expert Stuart James describes an experiment in which he recreated the blood pattern found in the RAV-4 by placing a volunteer’s blood in the same sink, collecting it and re-planting it. Buting and Strang’s original argument that Avery’s blood was planted from the evidence vial was disputed by the prosecution, who showed that FBI tests of the blood found in Halbach’s car did not detect ethylenediaminetetraacetic acid (EDTA), a preservative found in blood vials.

The motion also says Avery’s trial defense counsel and his previous post-conviction counsel failed to name a third party suspect in the murder who would meet the State v. Denny standard of having motive, opportunity and a connection to the crime. Zellner specifically names Halbach’s ex-boyfriend, Ryan Hillegas, as a viable third party suspect, and asserts that Hillegas was abusive toward Halbach during their relationship, lied to investigators about his relationship with Halbach and had injuries on his hands around the time of the murder that would have been consistent with Halbach scratching him during a struggle.

Zellner argues that Hillegas planted Halbach’s car at Avery’s salvage yard to frame him and take attention away from himself, which was why he was able to quickly lead investigators to the car during an early search for Halbach. She also argues that Hillegas’ role in aiding police with the search enabled him to plant more evidence on the Avery property, which he was given access to as part of the investigation.

Brady Violations and Prosecutorial Misconduct

According to Zellner, failure of the state to disclose certain evidence—in violation of standards set forth in Brady v. Maryland—and prosecutorial misconduct by former district attorney Kenneth Kratz impeded Avery’s ability to receive a fair trial.

The motion outlines four pieces of evidence Zellner says the prosecution withheld at Avery’s trial:

  • a CD of a voicemail left by Halbach to another photography client’s answering machine, which may have shown that the Avery property was not her last stop before her disappearance;
  • the amount of gas left in Halbach’s car when it was found, which may have shown how far the car was driven around the time of the murder;
  • an unedited version of a police flyover video of the Avery property on November 4, 2003, which may have shown that Halbach’s RAV-4 was not in the salvage yard at the time and could have been planted afterward; and
  • testimony by a neighbor of Avery who said investigators told him Halbach’s car may have been driven through the neighbor’s property, which could have been used to argue that the real killer drove through the property in order to plant the RAV-4 in Avery’s salvage yard.

Law professor and attorney Bennett Gershman told Zellner that Kratz’s actions before, during and after the trial were unethical, including a press conference Kratz held after Dassey’s confession but before Avery’s trial in 2006, in which he detailed the rape, torture, murder and mutilation described by Dassey and asserted that what he described was a “truthful and accurate account.” Zellner argues that this appearance made by Kratz before the media would have prejudiced any potential jury members in the community and made it impossible for Avery to receive a fair trial.

She also points to communications between Avery and Kratz after the trial—in which Kratz berated Avery for not “being honest about what happened and finally telling the whole story to someone” while Kratz was in the process of writing a book about the case—and the fact that Kratz ultimately resigned as district attorney due to sexually inappropriate communications with multiple women, which Zellner compares to Kratz’s “exploitative” and “harassing” behavior toward Avery.

New Evidence

Several items of new evidence are included in Zellner’s motion, which she says warrant a new trial.

One is a new analysis of one of the damaged bullets found in Avery’s garage, which the state claimed was one of the two bullets that killed Halbach. Two experts, whose affidavits are included in the motion, argue the bullets could not have been shot through Halbach’s head as argued by the prosecution, as bone particles from her skull would have been detectable on the bullet, and were not found after new tests.

Ballistics expert Lucien Haag conducted an experiment shooting identical bullets through bone, while trace evidence expert Christopher Palenik compared a microscopic analysis of those bullets with that of one of the bullets in the Avery case. He found that bone particles were on the bullets fired in Haag’s experiment, and remained after being washed in the same way the bullet from the case was washed during a DNA extraction procedure. Palenik’s microscopic analysis of the bullet from the case found wood particles and a small amount of a red substance he said could be red paint, but no bone particles.

Another piece of new evidence is a “brain fingerprinting” test conducted on Avery that shows he had no knowledge of certain details of the murder that would only be known to the murderer or investigators. The test was conducted by Lawrence Farwell, the forensic neuroscientist who created the method. Despite it being used in only one other criminal case, Zellner says the method  has been rigorously tested, peer-reviewed and scientifically accepted with a near-100 percent accuracy rating.

Based on experiments conducted by molecular biologist Karl Reich, Zellner says Avery’s DNA found on Halbach’s vehicle key could not have been left from him holding it in his hand—and could have been planted by investigators using a “DNA-rich source” such as a toothbrush—and that swabs from the hood latch of Halbach’s car, where prosecutors say Avery’s DNA was also found, could have been swapped by investigators with groin swabs taken from Avery.

Avery’s last motion to receive a new trial, under different post-conviction counsel, was denied in 2010. Zellner, who has worked previously on high-profile wrongful conviction cases, became Avery’s lawyer in January 2016. Avery’s nephew Dassey remains incarcerated pending an appeal of the decision to overturn his conviction. Netflix VP of original content Cindy Holland told USA Today that the “Making of a Murderer” documentary series, which spurred an enormous public reaction to the case when it premiered in 2015, is planned to continue with new episodes but said there is no official release date scheduled.

The Wisconsin Department of Justice responded to Zellner’s motion, saying, “We are confident that as with Mr. Avery’s prior motions, this one also is without merit and will be rejected once it is considered in court,” according to ABC affiliate WBAY.

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