Steven Avery filed his Motion to Supplement Previously Filed Motion for Post-Conviction Relief this past Friday, July 6th.
The 32-page motion, backed by some 30 exhibits consisting of over 500 pages of sworn affidavits, interviews, videos and reports, is Kathleen Zellner’s—Avery’s Lead Counsel— latest filing in an attempt to have her client’s conviction overturned.
Avery’s latest motion, filed with the Circuit Court of Manitowoc, comes after the 2nd District Court of Appeals of Wisconsin’s order allowing him to, “[p]ursue a supplemental postconviction motion in connection with Avery’s receipt of previously withheld discovery or other new information.”
The ‘previously withheld discovery’ relates to the April 17th disclosure by Wisconsin State officials to Zellner of a CD containing forensic reports entitled, “Dassey Computer Final Report, Investigative Copy” made by Detective Mike Velie of the Dassey Home Computer back in 2006 before Avery’s original trial. The CD, a forensic report on the hard drive of the computer was not included in an ‘itemized inventory of [the prosecutions] Steven Avery file,’ even though it had been produced by Velie to Special Agent Thomas Fassbender some 7-months prior.
The hard-drive of the ‘Dassey Home Computer’—in the form of 7 DVD’s—was provided to Avery’s original attorneys Dean Strang and Jerome Buting via disclosure from then Calumet County District Attorney Kenneth Kratz.
Kratz, itemizing the DVD’s as CD’s, made no mention of the Velie’s report, although reports on both Avery’s and Teresa Halbach’s computers were included.
Computer forensic reports for both Avery and Halbach were sent to Avery’s former attorney Erik Loy on February 9, 2006, just a matter of weeks before Strang and Buting took over legal proceedings. Of potential importance is the fact that Kratz disclosed Velie’s reports on both previous forensic reports in plain sight. While Zellner will understandably argue that such disclosure was not made in the case of the Dassey home computer and the report that came from it, the State will likely argue that Avery’s former attorneys had the opportunity to discover incriminating evidence—in the form of internet searches and MSN messages—linked to Brendan Dassey’s brother Bobby, through their disclosure of the 7-DVD’s.
During a motion hearing held on January 4, 2007—20-days after the State’s deadline for disclosing their file pertaining to Avery to the defence—Strang requested a further weekend to file the defence’s Denny disclosure. Due to the timing—December 15th—of the State’s deadline for their own disclosure, Strang and Buting had 3-weeks to file their Denny Motion. Being the Christmas period, it could be argued that finding the necessary experts willing to conduct their own analysis of the Dassey home computer via the disclosed 7-DVD’s could have proven problematic. Indeed, State attorney Norman Gahn alluded to the same issues when discussing tests to be made on the blood vile that were presented during Avery’s forthcoming trial.
Again though, what is clear is that Kratz had no issue disclosing Velie’s computer reports for Avery and Halbach, but did so for that of the Dassey computer. Perhaps of more importance was Kratz’s recognition of the Dassey home computer report and his determination that Velie “[f]ound nothing much of evidentiary value.”
Indeed, within Strang’s affidavit, he asserted that. “With the belated production of the Velie forensic analysis to Mr. Avery’s current lawyers in April 2018, it now appears to me from materials that Ms. Zellner and co-counsel have filed that the Velie forensic analysis in fact did include much of evidentiary value in direct contradiction to Mr. Kratz’s claim.”
Of further importance is the claim by Kratz that the computer in question was that of Brendan Dassey. Zellner—through analysis by forensic computer expert Gary Hunt—has strived to prove that not only was the computer in question not solely that of Brendan Dassey’s, but that the vast majority of internet searches and MSN messages highlighted in Velie’s report can only be attributed to his brother Bobby due to when the searches and messages occurred.
While the argument as to whether Strang and Buting had the necessary time to develop their own analysis, or indeed should not have accepted Kratz’s assertion that nothing much of evidentiary value was contained within ‘Brendan’s’ computer, will be looked at in relation to a potential Brady violation, Zellner’s highlighting of her number 1 Denny suspect remains. If the courts rule that no Brady violation occurred, Zellner will plead ineffective assistance of trial counsel. Either way, she will assert that third party liability—Denny in the case of Wisconsin—should have been allowed at Avery’s trial.
Clearly, Zellner’s number 1 Denny suspect is that of Bobby Dassey. While much will be made of the computer findings, it is Dassey’s trial testimony, and the impeachability of it that will likely weigh greatly here.
The jury at Avery’s 2007 trial found him guilty of a felon in possession of a firearm, and first degree intentional homicide. In a decision that took some 3-days, the jury did not find Avery guilty of mutilation of a corpse, and of equal importance, a further count of false imprisonment was dismissed by the court. Due to this, the trial testimony of Bobby Dassey became of greater significance in a verdict where the jury found Avery guilty but seemingly did not buy the State’s narrative.
Indeed, as Zellner stated in her latest motion, the jury in question asked to look over Dassey’s testimony during deliberations, a clear sign that it was of great importance to their forthcoming verdict. While many will look at the affidavit of Bobby’s brother Blaine, and immediately jump to the presumption that Dassey was driving the victim’s vehicle, the important point here—that of impeaching Dassey’s testimony—is overlooked. Whatever, and whomever’s car it was is not so much at issue, rather the fact that Dassey certainly wasn’t hunting from within said vehicle. Dassey testified to hunting near to where his future step-father lived at the time of Halbach’s murder.
What is clear is that while Zellner carries out her own investigation into affording Avery a new trail, the State of Wisconsin has recommenced their own. It will now be down to the Circuit Court of Manitowoc, as ‘finders of fact,’ to perform their own as to the motion put in front of them. Whether they determine a Brady violation has occurred or not, Zellner has backed her assertion that other parties should have been considered in the murder of Halbach by pleading ineffective counsel in the alternative.
During consideration for the Denny Motion on January 19, 2007, State attorney Thomas Fallon spoke of the criteria to be met to warrant its granting.
Motive, opportunity and connection. Perhaps ‘thin’ during the January of 2007, perhaps not so ‘thin’ in the present.
Avery filed 30 exhibits alongside his motion. They are linked below. An itemized list identifying the exhibits may be found on page 38 of the motion.
The Manitowoc Circuit Court is due to rule on Avery’s latest Motion to Supplement by September 4th.
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