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Attorneys representing convicted murderer Steven Avery have filed a motion in their latest attempt to have his case overturned.
Kathleen Zellner, the wrongful conviction attorney representing Avery, took to Twitter on Monday to announce her team planned to file Avery’s third motion for post-conviction relief.
“Buckle up,” Zellner posted.
Avery and his nephew, Brendan Dassey, are currently serving life sentences for the murder of Teresa Halbach. But the pair achieved minor celebrity status after the 2015 release of Netflix’s docuseries “Making A Murderer, which reached more than 19 million viewers in its first 35 days alone.
The series examined Avery’s 2003 wrongful conviction for a 1985 rape unrelated to Halbach, as well as his and Dassey’s arrests for Halbach’s murder.
Halbach’s charred bones were discovered in a burn pit on Avery’s 40-acre auto salvage property in 2005.
Avery’s legal representatives e-mailed the 149-page motion — filed with the Manitowoc County Circuit Court on Tuesday — to Oxygen.com. The motion attempts to clear Avery’s name by accusing another person tied to the case of the murder, after “two new witnesses” allegedly provided “new and compelling” evidence that Avery's attorneys believe could prove their client was framed.
Oxygen.com is declining to name the person they've accused, since he has not been charged in the case.
“This new evidence allows for a reconsideration for the real motive of this crime — as being a sexual homicide, which was the culmination of an obsession by [the alleged suspect] with viewing thousands of images of violent, deviant pornography,” the motion states. "On Oct. 31, 2005, the obsessive fantasies of [the alleged suspect] became a reality when Teresa Halbach was brutally assaulted and murdered by two rifle shots to her skull.”
Attorneys noted that Halbach’s body was mutilated, as were the “female subjects” of the pornography found on the accused’s computer.
They also claim the person they are accusing “was able to control the direction of the investigation.”
Zellner’s team said prosecutors failed to disclose the aforementioned evidence before or during the murder trial, which, according to Avery’s legal representation, constituted a Brady violation.
“Mr. Avery does not have to prove who committed this terrible crime to receive relief. This is not his intent or purpose,” the motion stated. “However, he does have a right to prove he did not receive a fair trial."
“The new evidence, which establishes that [the alleged suspect] meets all of the Denny criteria to be a third-party suspect," they add. "And the evidence of two Brady violations demonstrate that Mr. Avery was deprived of a constitutionally guaranteed right to a present a complete defense to the charges against him.”
A “Denny” — which Zellner refers to as their second Brady violation — is when there is someone with motive and opportunity who could be proffered as a suspect in place of the defendant, should the state agree there would be enough evidence to charge them. The term comes from the 1984 case of Wisconsin v. Kent Denny.
In conclusion, Zellner and her team requested that the state grant Avery an evidentiary hearing or new trial.
The state has yet to respond, according to Fox Green Bay affiliate WLUK-TV.
The Wisconsin Court of Appeals denied Steven Avery a new trial in July 2021 following a volley of claims, including a lack of physical evidence tying Avery to Halbach’s murder and ineffective counsel. The state’s supreme court most recently rejected a petition to review his case in November, according to court records.
Last month, Zellner addressed the apparent perception of a lull in the case.
“To all the naysayers who think we have forgotten Steven Avery: do something useful and positive. It keeps your brain active and puts a smile on your face,” Zellner posted. “Meanwhile, we are doing something useful: completing his new petition with compelling and new evidence, and we’re smiling!”
Steven Avery is currently housed at the Fox Lake Correctional Institution following Zellner’s June request to have him moved to a medium security facility, according to ABC Green Bay affiliate WBAY-TV. Avery was formerly housed under maximum security at the Waupun Correctional Institution, prison records show.
Avery’s nephew, Brendan Dassey, continues to serve his life sentence for Halbach’s murder. Described in his clemency petition as being a “16-year-old, intellectually disabled child” at the time of Halbach’s murder, Dassey’s most recent appeal in 2018 was rejected.
Avery’s case is being overseen by Sheboygan County Judge Angela Sutkiewicz, according to WLUK-TV.
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