Since the ruling by the Supreme Court of The United States last month to deny Brendan Dassey a hearing, the case of Steven Avery has taken on an even greater significance.
While Dassey and his attorneys will undoubtedly regroup for a further sortie to overturn his conviction, it is perhaps Avery that holds a more immediate recourse for relief to Dassey’s plight.
Avery’s appeal is presently back at the Circuit Court of Manitowoc after a decision relating to an undisclosed CD of potentially exculpatory nature was remanded back to them by the 2nd District Court of Appeals in Wisconsin.
In the latest twist in a case of a most un-Roman nature, Avery’s post-conviction attorney Kathleen Zellner—due to file her Motion to Supplement the Record by tomorrow, July 6th—filed a Motion to Compel Recent Computer Examination. The motion—relating to the November 10th turning over of a computer tower that had been previously seized by LE back in 2006, during their investigation into the murder of Teresa Halbach—sets forth further disclosure issues.
Details included in Zellner’s latest filing reveal that the State of Wisconsin “[b]egan conducting a new investigation of certain issues related to Teresa Halbach’s murder raised in current post-conviction counsel’s Motion for Post-Conviction Relief filed on June 7, 2017.” Upon the receipt of a Freedom of Information Act request by Zellner’s investigator James Kirby, 64-pages of police reports were received dating back to August 30th of last year.
Exhibits within Zellner’s latest filing show redacted police reports detailing the collection and subsequent return of the computer tower, which was taken, “for reasons of possible additional forensic examination.” The tower, held by State investigators for 146 days was returned April 5th, 2018.
The date of the towers return—coming less than 2-weeks before the State’s disclosure of a CD containing a report on the “Dassey home computer”—will likely be seen by many as more than that of simple coincidence.
Indeed, the handing over of the computer tower itself occurred a mere 9-days after Avery’s attorneys filed his Amended Supplement to Previously Filed Motion for Reconsideration, which included a recorded telephone conversation between Avery and his sister Barbara Tadych—with her husband, Scott Tadych, heard in the background. The conversation, which further fanned the flames to the notion that Halbach left the Avery salvage yard after taking photos of the then Barbara Janda’s automobile, will be of key importance to Avery as he seeks to prove that a Denny Ruling—imposed upon his original attorneys—was unjust, due to non-disclosure of exculpatory evidence withheld by the State leading up to his trial in 2007. The lack of disclosure, if deemed substantive by the court, would constitute a Brady Violation, and in doing so, offer Avery relief.
Correspondence between Zellner and Assistant Attorney General Thomas J. Fallon, was also revealed in Avery’s Motion to Compel.
Zellner, in a letter dated June 12—less than 2-weeks after receiving the aforementioned 64-pages of police reports—requested that Fallon provide her with “[a]ny and all documentation…related to the seizure of the Dassey computer on November 10, 2017.”
The full letter is provided below and it is worth noting that while the police reports only yield 2 pages—of which is known—further details as to its collection, and reasons being, may be revealed through police notes, inter-office communications and memorandums etc…
Fallon’s response—some 2-weeks later—was to decline Zellner’s request citing that she had “[p]rovided absolutely no legal or factual basis for your request,” after initially stating that Court of Appeal’s remanding of Avery’s Motion to Supplement the record was both, “specific,” and “narrow” in its nature. Zellner’s same day response to Fallon’s rejection of her request, made reference to, amongst other things, the COA orders that:
The court’s order that Avery should be “permit[ed]…to pursue a supplemental postconviction motion in connection with Avery’s receipt of previously withheld discovery or other new information.” (Emphasis added) suggests that further investigation into the “Dassey home computer,” should be made transparent. As to whether the State’s further investigation of the computer is of an exculpatory nature to that of Avery should surely be for the circuit court to decide, and not that of Fallon.
While the COA permitted Avery 30 days to file his Motion to Supplement—due date, July 6th—the timing of Fallon’s responses, and indeed lack-of, may be called into question by that of both courts in future rulings. Indeed, Fallon made no effort in replying to Zellner’s further email to him on June 25th, until she once more sought a response on July 2nd, to which Fallon ventured, “I am out of the office and on vacation until Thursday. We will reconsider your request in the context of this case.”
Just by reviewing their communications from June 12th to July 2nd, what began with “Dear Tom,” soon became “Dear Mr. Fallon.” Much more of this and the “Dear” might be dropped altogether.
Another of Zellner’s cases, that of Melissa Calusinski, will have an appeal filed with the Supreme Court of Illinois by July 16th. Calusinski—sentenced to 31 years incarceration for the 2009 murder of toddler Benjamin Kingan—recently had her latest appeal to the 2nd District Court of Appeals denied. While an option to petition the COA for a rehearing was available to Calusinski’s attorneys, they have chosen to appeal her case to that of a higher jurisdiction.
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