*UPDATE: Since the publication of this article, the Court of Appeals have remanded Steven Avery’s Motion to Supplement the Record back to the Manitowoc Circuit Court. Kathleen Zellner is due to file her motion with the trial court by the 6th of July. Zellner will be able to file additional information/findings along with that which she already submitted to the COA on May 15th. On June 14th, Zellner filled Defendants Motion for Substitution of Judge. The motion is a request that Avery’s presiding trial court judge should be reassigned to a judge in Manitowoc.
Zellner’s latest motion will not impact the timing of her Motion to Supplement the Record, which is now due by July 6th.
Kathleen Zellner filed Steven Avery’s Motion to Supplement the Record with the 2nd District Court of Appeals in Wisconsin on May. 15th. The motion relates to a CD disclosed to Avery’s lawyers for the first time on April. 17, of this year.
With Avery’s latest supplement of the record, Zellner has filed 5 exhibits, ranging from affidavits to a CD containing images lifted from the Dassey home computer’s hard-drive. The motion argues that Wisconsin State officials failed to disclose evidence that would have been of an exculpatory nature to Avery.
The affidavit of Jerome Buting—co-counsel for Avery at his 2007 trial—highlighted the state’s failure to disclose a CD, “contain[ing] information on websites and images from the hard drive [of the Dassey’s computer—including,] injuries to humans, to include a decapitated head, badly injured and bloody body, a bloody head injury, and a mutilated body.”
The CD in question relates to a large batch of discovery received by Buting from then District Attorney for Calumet County, Kenneth Kratz. Within the discovery—received on Dec. 14th, 2006—was a report by Special Agent Thomas Fassbender entitled, ‘Examination of Brendan Dassey Computer.’ Missing along with the CD was an investigative report by Detective Mike Velie of the Grand Chute Police Department—Velie conducted the forensic examination on the Dassey home computer. Records show that Fassbender received ‘[m]aterials pertaining to [Det. Velie’s] computer analysis,’ shortly after May. 11th, 2006.
The CD, marked, ‘Dassey Computer, Final Report, Investigative Copy,’ was kept—along with hardcopy pages of instant message conversations—in Agent Fassbender’s possession rather than being disclosed to Avery’s defence attorney prior to trial.
Zellner’s latest filing has highlighted one of the key pitfalls in Avery’s original case in 2007. During Avery’s trial, his attorneys were prohibited from presenting evidence that any third party, other than Brendan Dassey participated in the murder of Teresa Halbach. Part of the reasoning behind the trial court not allowing other potential suspects to be introduced at trial was lack of motive, yet Zellner’s latest offering provides not only evidence of a lack of disclosure, but importantly, the means and motive for another potential suspect.
Buting spoke of the severe restrictions that not being able to explore additional suspects caused Avery, during his post conviction motion hearing in September of 2009,
“I felt that this could not be just a reasonable doubt case, where you would pick apart the State’s case and leave all these unanswered questions, that it was my feeling from early on, that we really needed to win this case. We really needed to be able to point the finger at another suspect….. So we really wanted to show the jury that not only was he not guilty, but here’s another person there who could have been guilty, or could be guilty, so that they could have some sort of comfort level in returning a not guilty verdict.”
While the CD in question has been placed under seal by the presiding court, Digital Forensic Examiner Gary Hunt’s correspondence with Zellner, detailed his findings. Hunt revealed that on the CD provided was an HTML report for the Dassey hard-drive, which referenced more than 1600 photos categorised as ‘recovered pornography,’ and some 2600 plus search results for the terms, ‘Blood, body, bondage, bullet, cement, DNA, fire, gas, gun, handcuff, journal, Myspace, news, rav, stab, throat and tires.’
Hunt’s report summary also alluded to further potential information via a “‘[f]inal report’—which listed 12-CD’s recovered at Dassey’s residence—being turned over to S/A Fassbender,” Hunt made note that it wasn’t “[c]lear if the final report is this HTML report or a separate document.” Perhaps of more importance was the mention that either way, there was no information as to the contents gleaned from the 12 CD’s.
Exhibit 5, a video recording of the Dassey trailer by Sgt William Tyson, was returned to Zellner and not considered as part of the motion to supplement the record. The recording, according to the motion shows the Dassey computer located in Bobby Dassey’s bedroom.
During initial investigations into the murder of Teresa Halbach, mentions of the computer were often tied-in with Brendan Dassey rather than that of his brother Bobby. Previous motions by Zellner have looked to prove that Bobby Dassey was responsible for accessing both pornographic and violent images from the Dassey home-computer due to the time that they were downloaded. The reason why the court decided to return Exhibit 5 to Zellner is unclear, but establishing that Bobby Dassey was indeed the person accessing the images, rather than Brendan is of great importance to Avery’s defence team.
Both Bobby Dassey and Scott Tadych have come under the spotlight in recent filings by Zellner. Buting too, identified both men as prime suspects and alluded to the fact that each were the others only alibi witness. While Tadych’s role at Avery’s trial was perhaps understated, Bobby Dassey played an integral part in establishing not only the state’s timeline, but also that Avery was the last known person to see Halbach alive.
For now, Zellner’s latest filing appears to show a failure by Thomas Fassbender to disclose evidence of an exculpatory nature to Avery. Whether Kenneth Kratz was aware of this CD or not, won’t impede any Brady violation claims, as it is not necessary for the state to knowingly fail to disclose such evidence. Whether it can be definitively proven that it was Bobby Dassey who requested the searches in question remains to be seen, but the accumulative total of evidence that Zellner is providing likely bodes well in a court that operates not only at a higher level of jurisdiction than that of Avery’s trial court, but possibly also from a more open-minded standpoint.
Only a few days before Zellner’s motion to supplement the record was filed, she had asked the court to allow her to extend Avery’s forthcoming brief to 31,000 words—close to 3-times the normal count. Her request to do so stopped the clock on her deadline for filing Avery’s brief to the Court of Appeals. The brief was due May. 21st. As of the morning of May. 25th, Avery’s docket still shows his request to supplement the record as pending. Once the clock officially starts once more, Zellner’s brief will be due 6 days following.
With an additional 20,000 words to play with, expect ‘Manifestly’ and ‘Erroneous’ to appear alongside the ‘most-used-words’ list, in a much anticipated brief.
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