Kathleen Zellner attends the premiere of "dream/killer" during the 2015 Tribeca Film Festival.

‘Making A Murderer’: Kathleen Zellner ‘Not Ruling Out’ Defamation Suit Over Ex-DA’s Book

As the book Avery: The Case Against Steven Avery and What “Making a Murderer” Gets Wrong continues to sell, Avery’s lawyer has been busy refuting its content and may be eyeing a lawsuit against the former prosecutor who wrote it.

“Prosecutors have no immunity for defamation after they are no longer the prosecutor on the case,” Zellner told the Inquisitr, speaking of former Calumet County District Attorney Ken Kratz. She said she is not announcing a lawsuit but is not ruling it out.

Kratz claims the book reveals things Making a Murderer left out and evidence the jury didn’t see when he tried Avery for the 2005 killing of Teresa Halbach.

One of those facts, he claims, is that Steven Avery not only denied having a bonfire on Oct. 31, 2005, but also told police he did not have a burn pit.

“(He) then eventually allows that he has one, but that nothing had been burned in it for two weeks,” Kratz writes on page 38.

Zellner says that claim is false.

“Steven Avery, when asked if any of the garbage in the salvage yard pit was burned ‘in burn barrels or open pits,’ replied: ‘Not in the pit, no,'” Zellner wrote in a diagram she tweeted earlier this month. “Steven Avery readily admitted that there were burning barrels in the residential areas on the Avery property and that the last time he used his burning barrel was about two weeks earlier when he burned regular garbage. Clearly, Mr. Kratz is mischaracterizing Mr. Avery’s statement. The Averys did not burn garbage in the business or salvage yard areas of the property; they did, however, burn garbage near their homes.”

Calumet County District Attorney Ken Kratz gives closing arguments during a trial at the Calumet County Courthouse in Chilton, Wisconsin.
Former Calumet County District Attorney Ken Kratz in court. [Image by Morry Gash/AP Images, File]

Kratz, who resigned after the Avery and Brendan Dassey trials, also writes about how investigators found blood on the floor of Avery’s garage. Investigators used a jackhammer, the former DA writes on page 88, to recover chunks of concrete from that floor; analysts found a substance that could have been human blood, but tests were inconclusive.

According to Zellner, Kratz is again inaccurate, this time by conflating three sets of evidence: swabs taken from the surface of the garage floor on Nov. 6, 2005, and Oct. 4, 2006, and 16 chunks of the concrete floor removed with a jackhammer on March 1, 2006. Kratz fails to mention that blood was found among swabs taken from the non-jackhammered floor, blood belonging to Steven Avery. No evidence exists that the 16 jackhammered pieces of concrete were ever tested for blood.

“The ten swabs taken on November 6 were sent to the crime lab, where nine of them tested positive for the presence of blood,” Zellner says. “Further, six of those swabs yielded Steven Avery’s DNA profile. Mr. Kratz’s assertion that the stains on the garage floor tested inconclusive for the presence of blood is false. Mr. Avery’s blood was present in the garage in sufficient quantity to yield his DNA profile. None of Ms. Halbach’s blood was detected in the garage.”

What’s In A Name?

Kratz writes that Avery went to lengths to conceal himself before he killed Halbach, suggesting he lured the 25-year-old photographer to his property. On page 22, the author claims Avery was “unwilling to give his name” when he called Auto Trader and instead gave the name “B. Janda.”

Zellner notes that it was Auto Trader employee Dawn Pliszka who took the call the morning of Oct. 31, 2005, and that she did write down “B. Janda,” but not because Avery gave that name.

“There is no evidence that Steven Avery told Pliszka that the contact name for the appointment was ‘B. Janda,'” Zellner says.

Pliszka testified on Day 2 of Avery’s trial, telling Kratz during direct examination that the man who called requested the “same photographer who had been out there before,” and that he did not speak clearly.

“I couldn’t quite make him out because he was very hard to understand,” Pliszka testified. “The closest I got was the initial B. Janda.”

Avery said in a 2016 affidavit that he was clear about who owned the van, and for whom the photographs were.

“When I called Auto Trader on October 31, 2005, at 8:12 a.m., I told the receptionist that the appointment was for Barbara Janda,” Avery states. “I told her my sister’s full name, not her first initial, because Bard owned the minivan to be listed in Auto Trader. I told the Auto Trader employee that the appointment was at 12932 Avery Road.”

The ‘Creepy’

According to Kratz, at trial and in his book, Halbach thought Avery was “creepy,” because on Oct. 10, a 46-degree day, he answered the door clad only in a small white towel. The former prosecutor follows that narrative on page 23, with claims that Teresa did not want to return to Avery’s because she was uncomfortable.

“Mr. Kratz’s assertions are false,” Zellner alleges. “There is no evidence that this incident occurred on October 10, 2005; Ms. Halbach thought it was ‘creepy’; (or) she told coworkers that she did not want to return. No one reported that Ms. Halbach did not want to go back to the Avery property.”

In fact, Zellner said police were told the opposite. According to Auto Trader employee Rachel Higgs, Halbach said she was not uncomfortable around Avery and referred to him as “harmless.”

Pliszka, who never met Halbach in person, testified that the towel incident occurred “around October 10.” During cross examination, she told Dean Strang she was not sure of the exact date.

Cat Killer?

Although Making a Murderer only touched on details of a 1982 incident of animal cruelty for which Avery did nine months in jail, Kratz writes on page 29 of Avery that Steven soaked a cat in gas and oil and tossed it into a bonfire.

“It jumped off and ran around the yard, still ablaze, until Avery caught the cat, applied additional fuel, and threw it back on,” Kratz writes.

That’s not the way it happened, Zellner says. Avery was involved — there is no denying that. What she claims is that Kratz has misstated the facts, and that Steven, who was 20 at the time, was not the one who threw the animal into the fire. According to a 2006 motion by the state to allow a statement about the incident, Avery’s friend, a man named Jerry Yanda, was the cat thrower. The jury, however, did not hear the statement.

“The trial judge ruled this evidence inadmissible because it has ‘zero probative value,'” Zellner said.

Other incidents Zellner says are misstated in Kratz’s book include an alleged sexual assault involving a minor and Steven Avery and a reported phone call between Steven and Halbach’s roommate she said never happened.

Zellner said if she takes action against Kratz or his publisher, it would not be her first time bringing a civil complaint against a former prosecutor.

Ken Kratz did not respond to the Inquisitr’s request for comment by press time.

[Featured Image by Monica Schipper/Getty Images]

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