Feast Or Famine: Will Steven Avery Be Granted An Evidentiary Hearing Over the Coming Weeks?

Since CJRJ’s publication of an article—dated August 2nd—addressing the State of Wisconsin’s Response to Defendant’s Motion to Supplement Previously Filed Motion for Post-Conviction Relief, filings to the Circuit Court of Manitowoc by both Steven Avery’s Attorneys, and the State have been frequent.

Following the State’s response to Avery’s Motion to Supplement Previously Filed Motion for Post Conviction Relief, on July 27th, no fewer than 15 entries have been filed—as of August 10th—to Avery’s Court Record, including letters of correspondence, motions and orders.

One could be forgiven for confusion over not only where Avery’s appeals process stands, but furthermore, what a forthcoming decision by the Manitowoc Circuit Court—due September 4th—could potentially mean for Avery and his pursuit of exoneration.

Back in May of this year, Avery’s postconviction counsel, Kathleen Zellner motioned the Wisconsin 2nd District Court of Appeals to, ‘Enlarge the Word Limit Permitted for His Brief-in-Chief.’

In doing so, Zellner gave a forewarning of events that have lead to where Avery’s case stands at present.

Zellner’s request—asking the COA to allow her 31,000 words in submitting Avery’s brief—came just 4 days prior to her clients revelation that the State of Wisconsin had been withholding a potentially exculpatory piece of evidence—in the form of  CD report relating to a forensic examination of a computer hard-drive kept at Barbara Janda’s residence—from both Avery’s original trial, and postconviction counsel, until April 17th of this year—that appears to offer impeachment of the State’s key witness—Bobby Dassey—at his trial in 2007.

With this revelation, Avery’s brief, due to be filed with the COA a matter of days following was put on hold: with the clock stopped so to speak; Avery’s case was temporarily remanded back to the Circuit Court of Manitowoc.

Kathleen Zellner: By representing Steven Avery, Zellner will be looking to add to the 20 exonerations she has already secured as a postconviction attorney.

Since the COA remand order, Avery’s brief has been delayed, and accordingly much has transpired through subsequent filings from both sides as to the admissibility of potentially undisclosed evidence. As for the delay in Avery’s brief, Zellner remains resolute, ‘‘Any delay at this point does not matter. The key is getting strong enough evidence to the appellate court to reverse the conviction. The average P.C. takes 15 years. There are no quick fixes.’’

While time is seemingly not the important factor here, strength of evidence clearly is.

For the time-being, the question[s] remain. Firstly, will the circuit court agree with Avery that a Brady violation occurred due to the admitted failure—by the State—to disclose the CD in question, and secondly, will an evidentiary hearing be granted regardless?

Both questions have been fiercely debated over the past few weeks, with both sides keen to concede no ground in their polarised opinions. With regard to a potential evidentiary hearing, much looks likely to depend on the interpretation of the COA remand order:


While the State contends that, ‘‘ The Remand Order is limited to the information on the CD received from the State. Legal arguments pertaining to newly discovered evidence, and ineffective assistance of counsel are not envisioned by the Remand Order,’’ and accordingly, ‘‘[t]his Brady claim can be resolved on the briefs without need for an evidentiary hearing.’’ Zellner’s interpretation of the Remand Order is at the opposite end of the spectrum.

Indeed, Zellner via Avery’s Reply to the States Response asserted that, ‘‘The State misrepresents the scope of the Remand Order, which specifically states, ‘The
circuit court shall hold proceedings on the supplemental postconviction motion and enter its written findings and conclusions deciding the supplemental postconviction motion within sixty days after the motion is filed.’’’

If Zellner’s assertions are correct, the circuit court has little time in setting an evidentiary hearing, and duly entering its ‘written findings and conclusions.’ Perhaps more pertinent at this stage in proceedings is the circuit court’s own interpretation of the COA order. While it is hard to agree with the State’s reading of the order, due to its inclusion of ‘other new information,’ Zellner’s interpretation of ‘proceedings’ meaning that of an evidentiary hearing, could be construed differently by the circuit court. Perhaps due to this, Avery’s counsel fired a further shot by stressing that, ‘‘  This court cannot make the necessary factual and credibility findings required by the Remand Order in the absence of an evidentiary hearing. If this court refuses to hold an evidentiary hearing, all of Mr. Avery’s undisputed affidavits must be accepted as true.’’

If an evidentiary hearing is granted, its scope looks likely to be brought into question too. While many would hope that such a hearing would include evidence such as Teresa Halbach’s Toyota Rav4 amongst other numerous items held by the State, that—for the time being at least—will not be the case.

However, the scope by which the ‘Dassey Home Computer’ will be considered remains uncertain. Amongst the recent filings by both Avery and the State, the CD is not the only piece of ‘new evidence’ that could be considered for a potential evidentiary hearing.

Following on shortly after the disclosure of the CD in question, Calumet County Sheriffs Department took back into possession the same computer from which the CD—containing the, ‘Dassey Computer, Final Report, Investigative Copy’—derived from.

During the past 2 weeks, Zellner has requested the State’s findings in relation to further forensic tests performed on the ‘Dassey Home Computer.’ Perhaps unsurprisingly, the State duly rebuffed those requests and contained within filings by both parties, reasons have been given as to why, or why not this request should, or shouldn’t be granted. Zellner, likely foreseeing the State’s reluctance to comply with her Motion to Compel issued a subpoena to Barbara Tadych—the owner of the computer—via her Motion to Issue Supoena Duces Tecum.

While the State contends that forensic tests performed on the computer are not relevant to Avery’s present motion to supplement the record, due to the time frame by which they occurred, Zellner, via her Reply to State’s Response to Motion to Compel clearly disagrees. Although the secondary forensic examination by the State did not take place until some 10 years after Avery’s conviction, its potential findings did cover a period of 280 days between Detective Michael Velie’s first examination of the computer, and the time that Avery’s trial for the murder of Halbach commenced.

Once more, it will be for the Circuit Court of Manitowoc to decide on the filings that have rained down on them during the past few weeks, all the time in the knowledge that the COA will be eagerly watching.

Between now and September 4th, expect a further deluge.


* Since the publication of this article, Kathleen Zellner has informed Judge Angela Sutkiewicz that Barbara Tadych has supplied her with the computer in question. Correspondence below.

Letter to Judge Sutkiewicz re Motion to Issue Subpoena


If you have any questions or queries regarding this article, or indeed anything CJReform related please don’t hesitate to contact me here.








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