Kathleen Zellner, powerhouse attorney for Steven Avery of Making a Murderer fame, has recently filed a Motion to Supplement a Previously Filed Motion for Post Conviction Relief and there’s a chance it could benefit Brendan Dassey as well as his uncle, Steven Avery. In the motion, she continues to address the obstacles faced by his original trial counsel team, Jerome Buting and Dean Strang. Two items they struggled with were satisfying Denny and potential Brady violations. In her latest filing, she tackles both issues head on, showing in exhibits attached to her motion that the deck was knowingly stacked against her client.
One damaging piece she offers in support of her claim is an email from then-Special Prosecutor Ken Kratz to Dean Strang. In this email, dated January 25, 2007 he is requesting stipulations to be agreed upon regarding certain evidence and information to be presented at trial. On December 14, 2006 just days before the winter break, the state forwarded 7 DVD’s of forensic analysis of the Dassey computer to the defense. The final report was not forwarded. This is where things get interesting. The timing of this release was critical, because it allowed the defense no time to find and hire an expert to review these DVD’s. Due to the nature of the program used to create the DVD’s, they could not be viewed by the defense team either. These critical DVD’s could only be viewed with Encase V4 or V5. This wasn’t a program that you could just run out to your local Office Depot and pick up. If that had been an option, the trial might have taken a completely different track altogether.
In the January 2007 email from Kratz, he asks that the defense stipulates that there was nothing of evidentiary value found on the Dassey, Avery, or Halbach computers and specifically states that the stip would eliminate Officer Veile, the officer responsible for the forensic analysis, as a witness. Keep in mind that Veile’s final report had not been given to the defense. The defense attorney Jerome Buting refused to agree to this stipulation as requested by Kratz. Fast-forward 11 years later and Viele’s final report, now in the hands of Kathleen Zellner, actually shows a great deal of possible evidentiary material. This potential Brady violation goes hand in hand with difficulties faced in previous filings regarding Denny. It shows quite clearly that there were, in fact, other suspects that should have been looked at, but weren’t. Much like a previous filing from Kathleen Zellner regarding Denny and Ryan Hillegas, the internet has erupted with claims that she is wrongly accusing innocent people. In this case the furor is over Brendan Dassey’s brother, Bobby Dassey. What she has done, rather than accuse someone innocent, is show through Denny that there was cause to look at others close to this case. Even though there was cause, there was no investigation. A thorough, evidence based investigation could have provided reasonable doubt. This was denied to Steven Avery at the time of his trial.
So how does all this potentially help Brendan Dassey? According to Jerome Buting, if it was a Brady violation for Steven Avery, it was a Brady violation for Brendan Dassey. “An alternative suspect would have helped Brendan’s case. Supported his argument that his confession was false. And the prosecutors obviously knew Brendan was not the one searching for torture porn and murder and decapitation of young women on that computer, or they would have used such evidence against [Brendan Dassey] at his trial. They didn’t.”
According to Mr. Buting, those 7 DVD’s were unreadable ‘by any lawyer.” He states that they were all in 1’s and 0’s, or binary code. The report translating this code was already prepared, but was withheld from the defense. This exculpatory evidence is the basis of the Brady violation claim, and as stated above, could have helped Brendan as well as Steven Avery. This would also bolster any ineffective assistance of trial counsel claims by Brendan Dassey, because his lawyer failed to follow up on this at all. Now that we know how it can potentially help Brendan, the question remains, will it?
That’s a lot harder to call. The state has doubled and tripled down on their theory, or theories of the crime. The courts have a vested interest as well in keeping both men in prison as the guilty parties. All one has to do is look at some of the decisions handed down recently by Judge Angela Sutkiewicz to see that the sun doesn’t shine brightly on exculpatory evidence in this case. In fact, it appears in some instances to be deliberately kept in the dark, not only by the prosecution, but the court as well. Only time will tell if the sun shines in Wisconsin courtrooms going forward.
Criminal Justice Reform Journal 