*UPDATE: Since the publication of this article the Court of Appeals has remanded Steven Avery’s Motion to Supplement the Record back to the Sheboygan Circuit Court. Once Avery’s case returns to the COA, Kathleen Zellner will have 4 days to file Avery’s brief.
Zellner is due to file Avery’s motion to the trial court by July 6th.
Kathleen Zellner’s Appeal Brief to the 2nd District Court of Appeals in Wisconsin, awaits their ruling—for which there is no set time limit—on her recent filing to Supplement the Record in the case of Steven Avery. Once the COA ruling has been made, Zellner will have a further 4 days to file Avery’s brief.
The decision by the COA on whether to allow Steven Avery’s attorney’s to further supplement the record in relation to their latest discovery has yet to be decided. If they choose to deny Zellner’s request, an appeal to the federal court is likely inevitable.
The state’s response asserts that due to the timing of Avery’s latest submission, his record should remain as it was when the circuit court filed their Memorandum Decision and Order on November 28th, of last year. Zellner, by reply, has asserted that the state’s failure to disclose the CD in question to Avery’s original attorneys—Dean Strang & Jerome Buting—back in 2006, before Avery’s trial the following year, followed by further requests in 2017—before the trial court filed its order—constitutes a clear Brady Violation.
Buting’s affidavit—dated Nov. 13, 2017, laid claim that neither the CD in question, nor an investigative report by Detective Mike Velie, was ever turned over in discovery prior to Avery’s trial—a claim supported by the omission of the CD and report catalogued in then District Attorney Kenneth Kratz’s discovery, dated Dec. 14th, 2006.
Irrespective of the COA ruling on the matter at hand, of importance is the fact that the issue has been duly recorded. Whether the COA chooses to accept Zellner’s latest supplement or not, the CD in question has been reviewed. Of note is also the realisation that regardless of the COA ruling, Zellner’s Brady claim relating to the CD remains alive.
Reports by CJRJ on May 25th, that the COA were due to grant Avery’s latest supplement to the record may have proven premature. However, what has become apparent is the state’s desire for the CD in question to remain in the dark. Details as to the contents of the CD—some 1625 photos categorised as recovered pornography, and 2632 search results for the terms: Blood, body, bondage, bullet, cement, DNA, fire, gas, gun, handcuff, journal, Myspace, news, rav, stab, throat and tires—were revealed via a report by Digital Forensic Examiner Gary Hunt.
The state’s disclosure on April 17th this year, of a CD that was requested by Avery’s current counsel before the Manitowoc Circuit Court’s Decision and Order denying Avery relief, will likely not be lost on a court of higher jurisdiction than that of the appeals court in Wisconsin—should they refuse its admittance.
In addition, the fact that disclosure was not forthcoming until after Zellner’s decision to appeal to a higher court, seems likely pertinent. The perception by many—not exclusive to Avery’s case—that to be afforded an objective, and just audience, requires distancing from not only the trial court, but perhaps even the state itself, will not be lost on observers, whether from a professional, or public viewpoint.
Another of Zellner’s cases, that of Melissa Calusinski, is awaiting a ruling by the COA in Elgin, Illinois.
Calusinski—sentenced to 32 years of incarceration for the murder of toddler Benjamin Kingan—awaits a ruling relating to disclosure issues by Lake County, Illinois, in a case that bares resemblance to that of Avery’s by way of potential Brady Violations.
News from the COA on Calusinski’s case is expected within a matter of weeks rather than months. Like Avery’s case however, the enactment of further counter appeals is likely inevitable. Depending on the court’s ruling, either side will be afforded twenty-one-days to file an appeal.
CJRJ will keep our readers up-to-date as to both cases.
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