If you are a fan of the wildly popular Netflix original documentary about convicted murderer Steven Avery’s fight for exoneration, (Making a Murderer, Parts 1 & 2) then you know who Kathleen Zellner is, And you further know that she just might be the piece of the puzzle that was missing when Avery was tried and convicted in the 2007 death off Teresa Halbach.
What makes the story truly compelling is that Avery was convicted in 1985 of sexual assault and attempted murder and served 18 years for that crime which was later proven have been committed by another man. Amid allegations that police and prosecutors didn’t investigate anyone other than Avery, Avery’s conviction was overturned when DNA testing proved that another strong suspect actually did it.
Deputies recalled Sheriff Thomas Kocourek telling them at the time, "We already have the right guy. Don't concern yourself with it."
In 2007, Avery was in the middle of a $36 million wrongful conviction lawsuit against Manitowoc (Wisconsin) County when the second arrest occurred. Throughout the trial (and the subsequent Netflix documentary) it became clear that there were numerous irregularities in how County officials conducted the investigation into Halbach’s murder, up to and including destroying evidence that could have exonerated Avery.
Attorney Zellner says bone fragments that could have cleared her client were given to Teresa Halbach’s family in 2011 — and claims that the prosecution has been lying about it ever since.
Many people now believe that these glaring violations of Avery’s civil rights were done to railroad Avery into a guilty verdict so that the expensive lawsuit would go away. Since then, Avery has served 12 additional years for a crime he says he did not commit. Just like the first time.
Now, according to Steven Avery’s post-conviction attorney Kathleen Zellner, the courts have finally agreed with what she has been saying for a long time.
“The Wisconsin State Court of Appeals has decided a motion filed by Steven Avery's attorney to discuss new evidence will be heard by a lower court.”
Zellner tweeted her delight in the court’s ruling:
“Avery Update: We Won!!!!!! Back to the circuit court.”
This wasn’t Zellner’s first attempt to get Avery another chance in court, however. In 2016 she filed a 1,272-page motion alleging prosecutors concealed evidence and made numerous ethical violations that violated Avery’s right of due process. She asked for a new trial “in the interests of justice.”
That time, it took four months for the court to send down its decision - DENIED. But that hasn’t stopped the persistent attorney. She has since been working on another angle. She claims that bones were found at a location other than where they say Avery killed Halbach were given to Teresa’s family who later disposed of them.
Zellner alleges these bones, if human, could prove that Halbach was not murdered where investigators say she was, thereby casting reasonable doubt on much of the evidence in his trial.
Fox News reports, “Zellner’s complaint stems from bones found in a gravel pit off the Avery property. She hopes to have them tested to see if they are Halbach’s. If they are, it undermines the state’s theory that she was killed and her body was burned on the Avery property. She also notes that a 2011 report indicates bone fragments were returned to the Halbach family without Avery’s defense being notified."
From the actual motion:
“The State, without notifying Mr. Avery and his attorneys and during the pendency of Mr. Avery's direct appeal, caused material and potentially exculpatory evidence to be transmitted to the Halbach family for its potential destruction by cremation or burial,” she wrote. “The State by its actions has implicitly admitted that the bones are not only human, but that they belong to Ms. Halbach.
"The State cannot credibly argue that it returned animal bones to the Halbach family for burial or cremation. The State's actions demand that further proceedings be conducted to determine if Mr. Avery's due process rights have been violated and if the State acted in bad faith in returning the suspected human bones to the Halbach family.”
This time, the court agreed with Zellner.
It has ordered that the lower court in which Avery was first convicted must hear the new evidence that Zellner says will exonerate him. She believes the lower court will order a new trial or, better yet, throw out the conviction.
Zellner issued a statement about the high court’s ruling.
“We are delighted the appellate court granted the motion to remand to the circuit court to supplement the record with our new evidence that the State has destroyed material evidence by giving the bones back to the Halbach family,” Zellner told Fox 11 in a statement. “We believe Mr. Avery will be granted a new trial for this serious violation of both Wisconsin and federal law."
Zellner explained what the ruling actually means.
“The appellate court granted our motion to supplement the record with the evidence the bones were destroyed,” Zellner told Newsweek. “The case is being remanded back to the circuit court to conduct proceedings, which can include a hearing. The circuit court can grant a new trial, or if not, back to appellate court who can reverse the conviction and/or grant a new trial.”
And how is her client, Steven Avery, doing as the wheels of justice continue to turn - painfully slowly?
Newsweek reports, “According to Zellner, [Avery] is in high spirits and enjoys reading and responding to letters of support from those who watched the series.
“She shared a message from Avery on Twitter last Thanksgiving, which gave thanks to his supporters and asked the public to watch Making A Murderer Part 2.”