Kathleen Zellner: Avery, Dassey Cases Much Different

While Making a Murderer subjects Steven Avery and Brendan Dassey were convicted of the same offense in the death of Teresa Halbach, their post-conviction cases couldn't be any different, according to Avery's post-conviction attorney Kathleen Zellner.

"People do not realize that Brendan's case is 10 years further advanced than Steven's and is in a very precarious position," Zellner said of Dassey's case that is now hanging in the balance of the Seventh Circuit Court of Appeals.

Avery's first appeal started the same as Dassey's. Unable to secure counsel, he was a pro se litigant when the Wisconsin Court of Appeals and Wisconsin Supreme Court refused to his case. That's where Zellner came in. Agreeing to represent him in 2016, she filed a new appeal with the trial courts in June of this year, a motion that was denied on October 3.

Dassey was also denied relief on appeal. But, unlike Avery, he's had appellate lawyers working for him since his 2007 conviction. But, Steve Drizin, Laura Nirider and Robert Dvorak were met with the same setbacks, and were left to file a petition for habeas corpus relief in federal court, where the case has been since 2014.

If the court reverses a 2016 federal magistrate's ruling that that Dassey was coerced by police, Zellner says he would face extremely slim odds that the United States Supreme Court would hear his case. Therein lies a significant difference between the cases of Steven Avery and Brendan Dassey.

It is being speculated that three Seventh Circuit judges voted to affirm the magistrate, and three to reverse, leaving the deciding vote with Judge Frank Easterbrook. Zellner said if Easterbrook represented the tiebreaker, the likelihood that he voted to affirm is as low as a writ of certiorari from the Supreme Court.

"[Easterbrook's] prior opinions regarding juvenile confessions and AEDPA make it extremely unlikely he would vote for Brendan," Zellner said. "If the Supreme Court does not take Brendan's case, Brendan is out of options, barring the real killer being caught."

Further complicating Dassey's case is the forensic evidence. It's all part of his uncle's case, something Zellner considers an upside to Avery's appeal if she had to compare the two. The state based its case on Dassey's confession, and he has already exhausted his remedies in state court.

"Steven has a much better chance of relief because we have to go through the entire state court appellate system before going to federal court," Zellner said. "At each level, he could be granted relief. Brendan cannot be saved by forensic testing."

Avery also has the distinct advantage of never having confessed, Zellner said. And while she believes both men are innocent and Dassey was exploited because of his disabilities, it could still be years before they're released. And yesterday's decision by a Wisconsin judge to deny Avery a new trial is evident of Avery's long road ahead, one quite possibly as long as Dassey's.

"[Judge Angela Sutkiewicz's] decision caught both the prosecutor and us by surprise because we are still testing forensic evidence, and the attorney general agreed we could amend our petition in late November," Zellner said.

Zellner said the amended petition includes new evidence and witnesses, and she plans to file it with or without a motion to vacate the decision. Zellner said the judge issued Tuesday's decision without knowledge of the agreement with the attorney general. She also cited a noteworthy part of Sutkiewicz's opinion.

"She thinks all of our arguments, other than the DNA testing, are barred because Steven did not raise these points in his pro se post-conviction filing. So, even though Steven is barely literate, has no legal training or money for experts or investigators, there is some post-conviction case law that supports the judge's position. Obviously, this case law is hugely unfair and discriminates against anyone who is poor and uneducated. It is totally and completely unfair and needs to be changed."
And as legions of Making a Murderer fans and Avery supporters fumed at the judge's decision, Zellner says she isn't expecting Sutkiewicz to grant him a new trial, even if she's given a full evidentiary hearing. That is because nearly all post-conviction cases are won on appeal, meaning they are not decided in the trial courts.

"However, when the case goes up on appeal, we want the appellate court to have a full and complete record to review," she said. "So, we will amend the petition with the current judge to accomplish that goal."

Avery and Dassey are serving life sentences, Avery without parole. Dassey is eligible for early release in 2048. A decision is his case is expected within the next few months.

[Featured Image by Morry Gash/AP Images]