She promised to free Steven Avery. “[My] goal is to exonerate [my] client” by consulting the “best scientists in the world,” defense attorney Kathleen Zellner vowed in early 2016, after taking Avery’s high-profile case. “It does not matter how long it takes, what it costs or what obstacles we have to overcome,” she later added. “Our efforts to win Mr. Avery’s freedom will never stop.” But despite spending more than $230,000 on tests and promising to prove the guilty verdict was unjust in the case that became a national obsession thanks to Netflix’s Making a Murderer, some experts now say that Zellner won’t succeed. “Avery is going to die in prison,” NYC defense attorney Bruce Baron tells In Touch.
But Zellner’s not backing down. On Oct. 23, she filed a 54-page motion asking the court to reconsider its decision to deny her client a new trial for the grisly Halloween 2005 murder of Teresa Halbach, 25. (On Nov. 1, Zellner filed an additional 50 pages.) Still, Baron thinks it’s too little, too late because the points should have been made during Avery’s post-conviction motion. And former Wisconsin prosecutor Ken Kratz — the man who put Avery, 55, behind bars — feels similarly. “His case is never, ever getting overturned,” he says, calling Zellner’s motion “weak” and full of “far-fetched allegations.”
But Zellner tells In Touch exclusively that her critics are wrong and some of their comments are “laughable.” Wisconsin criminal defense attorney Raymond M. Dall’Osto agrees that Zellner has a shot. “I think the arguments that have been made have validity. They’re not frivolous,” he tells In Touch, pointing out that typically it’s not just one piece of evidence that overturns a conviction. “Will they prevail? That’s going to be determined in the judicial process.” In Touch has obtained the motion, and here, Zellner defends some of her key arguments:
1) Avery’s nephew, Bryan Dassey, told officials that his younger brother, Bobby, told him he saw Teresa leaving Avery’s property. This contradicts Bobby’s testimony at trial that he last saw Teresa walking toward Avery’s trailer on the day she went missing.
In court papers, Zellner argues that Bobby’s testimony was inaccurate. She tells In Touch, “We have three witnesses who have stated that Teresa left the property. The state’s theory that Teresa never left is fatally flawed and demonstrably false.”
2) Photos of Teresa were found on the Dasseys’ home computer along with images of females being raped and tortured.
“At first glance, it looks like it has merit, but [it’s] nonsense,” says Kratz, author of Avery: The Case Against Steven Avery and What Making a Murderer Gets Wrong. He says that at least six people had access to the computer, including Avery. “Our forensic computer expert has established the exact timeline of when the Dassey computer was accessed and only Bobby Dassey was home at the relevant times,” Zellner claps back.
3) Zellner claims that shortly before her disappearance, Teresa took notes about an upcoming appointment in her day planner — which was later found in the possession of her ex-boyfriend Ryan Hillegas. Zellner believes this indicates Ryan had access to Teresa’s car after she went missing.
“Back in 2005, Teresa carried [an electronic device] that had her appointments on it. That very [device] was found in Avery’s burn barrel,” says Kratz, who recalls that Teresa’s day planner was sitting on her kitchen counter when she went missing. But Zellner says Kratz has his facts mixed up: “The day planner was in [Teresa’s vehicle when] she left home on Oct. 31 because she spoke to two of our witnesses and told them she was going to pull over and make notes. Her handwritten notes of these conversations are on the day planner.”
4) Forensic testing found no particles consistent with bone on a bullet fragment found in Avery’s garage, which Zellner claims was incorrectly believed to have entered and exited Teresa’s skull.
“I never said the bullet went through the skull,” argues Kratz. Zellner calls Kratz’s response laughable: “He told the jury that Ms. Halbach was shot twice in the head and [the] bullet fragment had Ms. Halbach’s DNA on it. In order for Ms. Halbach to be shot in the head and deposit her DNA on [the] bullet fragment, [it] had to exit her skull.” She called the prosecution’s theory “a work of fiction that has been wholly dismantled by a world-renowned trace evidence laboratory.”
Kathleen Zellner attends the premiere of Dream/Killer during the 2015 Tribeca Film Festival at Chelsea Bow Tie Cinemas on April 19, 2015 in NYC.
5) Forensic testing found Avery would have had to try to open the hood latch of Teresa’s SUV around 90 times to leave the amount of DNA the Wisconsin State crime lab says it found on the latch.
“Did her experiment replicate the conditions at the time? I doubt it,” says Kratz, adding that Avery was sweaty when he touched the hood latch on Teresa’s SUV because he had spent 30 minutes camouflaging the vehicle under branches. But Zellner says Kratz has no idea what he’s talking about. “The assertion that Mr. Avery was sweating is pure speculation. It’s reasonable to assume that an obese prosecutor dressed in a suit and tie would be sweating with such mild exertion,” she fires back, in a clear dig at the portly attorney. “We did replicate the exact conditions described by the prosecutor, and no one came close to leaving as much DNA as existed on the hood latch swab.”
Avery’s fate is up in the air, but the fight (and the debate) over his innocence is far from over. “Giving up on his case would be accepting that someone else got away with murder,” says Zellner. “We are going to keep ringing the doorbell at this so-called Court of Justice until someone answers it.” She adds, “The deeper we dig into the Avery conviction, the more evidence we uncover of his innocence.”
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