Sheboygan Circuit Court Judge Angela Sutkiewicz yesterday denied Steven Avery his Motion to Supplement the Record via her Memorandum & Decision Order.
In a decision littered with factual errors—ranging from referencing Brendan Dassey as Brandon, to citing relevant DVDs in question as CDs—Sutkiewicz nevertheless drew the circuit court’s opinion indelibly in the sand.
The court’s opinion that evidence of a potentially exculpatory nature was disclosed to Avery’s previous attorneys in a timely manner, relates to 7 DVDs sent to them on the final day for the state to submit discovery pertaining to Avery’s case.
CJRJ detailed the process by which the state gradually muddied the waters in providing discovery to Avery’s defence attorneys in a previous article.
While it is common for both state and defence to cherry-pick relevant details to formulate their arguments, a non-partisan court clearly should not. Sutkiewicz’s repeated assertion that discovery relating to the 3 computers—Avery’s, Teresa Halbach’s & ‘The Dassey Home Computer’—forensically analyzed by Det. Michael Velie, was appropriately disclosed to both Jerome Buting and Dean Strang, failed to question why such disclosure varied so dramatically in its procurity. While some may argue that it is not the court’s role to question why the burden of discovery was not achieved via the same means, It surely should be the role of the courts to oversee a just process, pre-trial, during trial, and indeed after.
A clearer indication of Sutkiewicz’s preponderance for siding with the state came via her apparent endorsement of Kenneth Kratz’s ‘disclaimer’ that, ‘[t]he defence [should] look at the items in the inventory carefully and advise them of any missing items.’ What is clear here is that writing such a ‘disclaimer’ should not absolve one from misconduct.
While Kratz is derided by many, the clear process by which he successfully masked the investigative report made by Velie was deftly achieved. In hindsight, this may not appear to be the case, but when taken into consideration the time constraints by which both Buting and Strang were subjected to, the gradual clouding of transparency regarding the report undoubtedly left them unaware of its potential importance.
While Sutkiewicz claimed that the 7 CDs [sic] were ‘substantially’ the same as Velie’s report, this does not alter the key facts presented within Avery’s Motion to Supplement. What was contained on the Velie report was NOT the same as the 7 DVDs, and it was NOT disclosed via discovery.
At issue here is also the tendency to shepherd the blame towards the door of defence attorneys by means of ineffective counsel, rather than address clear chicanery by state prosecutors. From a perhaps cynical/realist viewpoint, the reasons are likely simple. Apportioning blame as to why a plaintiff may not have received a fair trial in the direction of his own attorneys takes away any wrongdoing by the state, and in-turn any potential repercussions.
Of course, this has nothing to do with justice—far more so, injustice.
Sutkiewicz declined to read any response by the state to Avery’s Motion to Supplement—dated July, 6th—and further reply by Avery, citing the Court of Appeals, ‘very specific’ guidelines within its order. While the COA evidently did not specify whether a response & reply was, or was not warranted, they did specify that the circuit court should conduct necessary proceedings within 60 days of Avery’s filing. Sutkiewicz filing was 62 days in the offing—30 days has September, April, June and November, your honor.
Avery’s next port-of-call will be the 2nd District Court of Appeals, where his post-conviction attorney, Kathleen Zellner is due to file her clients brief. Zellner—having already been granted a request to extend to Avery’s brief to 31,000 words—will no doubt have much to say.
Avery’s appeal to the COA, via his brief, is due Dec. 20, 2018.
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