A Wisconsin court of appeals has denied a motion from Making A Murderer subject Steven Avery that requested his case be returned to the circuit court so new scientific testing could be performed. Local news outlet WBAY reports that the court’s decision came on December 28, just hours after the State of Wisconsin filed their objection to Avery’s request.
Avery’s lawyer, wrongful conviction specialist Kathleen Zellner, filed the motion on December 17 with the goal of testing unidentified bones found in a Manitowoc County gravel pit. She believes new “Rapid DNA” testing would prove the remains belong to Teresa Halbach, a photographer Avery was convicted of murdering in 2005.
“This will prove the murder and mutilation occurred in the Manitowoc County Gravel Pit and the bones were planted in Mr. Avery’s burn pit to frame him,” Zellner tweeted shortly after filing, via Yahoo. “It would refute the State’s entire theory that she was killed on the Avery property in Avery’s garage and burned in his burn pit. That type of evidence reverses convictions.”
Steven Avery’s homemade holiday card wishing all of his supporters a “Merry Christmas”. TimeSquare pic is his last holiday w/his mom 2004. @lifeafterten @michellemalkin @guardian @RollingStone @TManitowoc #WorkWithKZ #TRUTHWINS pic.twitter.com/GuiEHJR8P6— Kathleen Zellner (@ZellnerLaw) December 21, 2018
The court of appeal’s two page decision to deny Zellner’s motion focused on procedural issues, agreeing with the state’s determination that “a request for further scientific testing would constitute a new proceeding” and “further scientific testing of evidence is not necessary to decide this appeal.”
In the state’s objection, they noted “This appeal has been languishing for a year,” and allowing Zellner’s request “may result in unnecessary delay and litigation.” They suggested Avery’s legal team voluntarily dismiss the current appeal to pursue the new DNA testing, or wait until the current appeal is resolved.
Avery’s legal team has had a hard time making much progress in Wisconsin courts, despite all the new evidence and information presented in the recently released second season of Making A Murderer (watch the trailer on Inquisitr). Much of that was included in a 1,200 page post-conviction petition and multiple supplements filed over the past 18 months, all of which have been rejected by a Sheboygan County Circuit judge without an evidentiary hearing.
State's motion opposing @ZellnerLaw motion to remand for testing of bones is found here:https://t.co/HbmCoDCesM— Jerome Buting (@JButing) December 29, 2018
Interestingly, State says its uncharted territory whether ct of appeals should remand or not - there's little caselaw - yet court decided to deny motion within hours????
Even with the courts blocking this latest motion, an agreement on the remains could still be reached between Avery’s legal team and the state attorney general’s office. As Rolling Stone reported, the state previously agreed to allow additional testing to be done on several key pieces of evidence, and there’s no reason a new deal couldn’t be reached to test the mystery gravel pit bones.
A new Wisconsin attorney general is also set to be sworn in on January 7, 2019, who may be more willing to quickly settle speculation on DNA evidence by allowing further testing. With the state now putting an emphasis on resolving Avery’s appeal in a timely fashion, we could see a number of developments occur relatively quickly. On that note, the courts have given Avery’s team until February 1, 2019, to file their appeal brief.