On the eve of the Ides of March, Kathleen Zellner, the Chicago-based attorney representing Steven Avery, submitted a significant motion to the Circuit Court of Manitowoc County. This move, described by former prosecutor Ken Kratz as a “bombshell,” requests a second order for post-conviction touch DNA testing on evidence from Teresa Halbach’s vehicle. Avery was previously convicted of Halbach’s murder, a case that gained international attention through the Netflix documentary series “Making a Murderer.”
Court documents obtained by the Wisconsin Law Journal on March 14 reveal Zellner’s request for further DNA analysis. She is seeking permission for Avery to conduct additional testing for touch DNA evidence within Halbach’s vehicle, aiming to potentially uncover new insights into the case.
During an interview with the Wisconsin Law Journal on Thursday, Zellner emphasized her client’s desire for DNA testing, stating, “Guilty individuals do not want DNA testing, but innocent ones do.” This statement underscores her continued belief in Avery’s innocence and the potential of DNA evidence to support his claims.
Image: Kathleen Zellner, Steven Avery’s lawyer, speaking about the new motion for DNA testing.
However, Ken Kratz, the former prosecutor in Avery’s original trial, has strongly criticized Zellner’s tactics. In an exclusive interview with the Wisconsin Law Journal on Thursday night, Kratz labeled her defense strategies as “deceptive.”
Image: Ken Kratz, former prosecutor, offering his critical perspective on Kathleen Zellner’s motion in the Steven Avery case.
Kratz’s sharp response included, “Sometimes all you can do is tilt your head at such stupidity, or more likely deception. Since DOJ is too polite to call this person on her B.S., I guess it falls to me once again,” reflecting his continued conviction of Avery’s guilt and skepticism towards Zellner’s efforts.
Zellner countered Kratz’s criticism by highlighting her extensive experience in wrongful conviction cases. “In my almost 30 years of handling wrongful conviction cases I have never had a post-conviction motion for DNA testing denied particularly when the defendant pays for the testing,” she stated, emphasizing the unusual nature of any potential denial in Avery’s case given his willingness to fund the testing.
Renewed Focus on Touch DNA Evidence
Zellner’s motion highlights the availability of “financial resources, donated by Mr. Avery’s supporters,” which now enables “additional testing on items from Ms. Halbach’s vehicle that have never been tested previously for touch DNA.” She argues that Avery should be allowed to conduct this testing based on a 2007 DNA Order previously entered by Judge Willis.
The specific items Zellner seeks to have tested for touch DNA include a comprehensive list of areas within and on Halbach’s RAV-4:
- Driver and passenger seats
- Dashboard
- Near shift
- Steering wheel
- Interior and exterior hood latch release
- Broken turn signal light (Item A15)
- Hood prop
- Battery cable
- Battery
- Rear cargo area
- Interior and exterior cargo door
- Lug wrench and license plate
In response to a question from the Wisconsin Law Journal regarding the alleged misleading aspects of Zellner’s motion, Kratz pointed to “Attorney Zellner’s habit of arguing facts that are either false or intentionally misleading.” He specifically challenged Zellner’s interpretation of Halbach’s blood being found in the cargo area, asking, “What about (Brendan) Dassey explaining he and his uncle threw her body there after she was killed? Isn’t that evidence?” This highlights the ongoing dispute over the interpretation of existing evidence and testimonies in the case.
New Evidence and Ongoing Legal Arguments
Zellner asserts that “specific evidence has developed directly connecting Dassey to being in possession of the RAV-4 and moving it onto the Avery property on Nov. 5, 2005,” further bolstering the need for touch DNA testing to identify potential third-party involvement in Halbach’s murder. She argues that Avery is legally entitled to this testing under the prior court order from 2007.
Kratz, however, dismisses the innocence claims as a “fraud.” He further questioned Zellner’s potential motivations, stating, “And while we are on the subject of potential innocence fraud, ask Attorney Zellner if you find evidence that would exonerate Mr. Avery as a result of your exoneration motions, who would represent him in any future multimillion dollar federal civil lawsuits? I bet I know the answer,” suggesting a possible financial incentive behind Zellner’s continued legal efforts.
Despite Kratz’s skepticism, Zellner maintains that crucial evidence in Avery’s case has never undergone touch DNA testing. “If these items are tested, they could conclusively demonstrate Mr. Avery’s innocence,” she stated in court documents, emphasizing the potential for new scientific evidence to overturn the conviction.
Kratz remains steadfast in his belief of Avery’s guilt. “Like all citizens watching the nation’s best exoneration lawyer continue to get her briefs handed to her, over and over, I’ve got to wonder when she finally admits all the evidence did, and still does, point to her client, Steven Avery. Time to show some self respect,” he remarked, criticizing Zellner’s persistent pursuit of Avery’s exoneration.
Zellner stands firm in her client’s innocence and argues that Avery’s request fulfills all the requirements of Wis. Stat § 974.07. “Because Mr. Avery has met all the requirements of § 974.07, this Court should order all of the above-described testing,” she wrote in her legal documents, asserting the legal basis for her motion.
Steven Richards of Casco, Avery’s local counsel, also signed the March 14, 2024, motion, indicating the unified legal front in Avery’s defense.
Background: Alternate Suspect Theory and Previous Appeals
As previously reported by the Wisconsin Law Journal, Zellner’s legal strategy has consistently involved presenting an alternate suspect theory for Halbach’s murder, rather than Avery. This approach was central to a previous motion filed in January with the Wisconsin Court of Appeals District II.
Documents from January show Zellner requesting the Court of Appeals to reverse prior orders denying post-conviction relief, grant an evidentiary hearing, reverse the conviction judgments, and ultimately remand for a new trial.
“Conducting an evidentiary hearing on the new evidence of a third party being in possession of Teresa Halbach’s vehicle is vitally important to preserve the integrity of the Wisconsin judicial system. Mr. Avery’s trial defense was that the forensic evidence used to convict him had been planted. Now a witness has placed the vehicle with all of that forensic evidence in the hands of a third party prior to that evidence being discovered,” Zellner stated in a previous interview with the Wisconsin Law Journal. She questioned the impact of such evidence on a jury, “Can anyone seriously contend if a jury had heard testimony from this witness that a reasonable doubt would not have arisen in the jurors minds about Steven Avery’s guilt?”
Zellner and Richards have argued that the Circuit Court improperly evaluated Avery’s factual claims against speculative theories, instead of accepting his facts as true to determine if an evidentiary hearing was warranted. They contend that an evidentiary hearing is crucial for Avery to prove his claims and justify a new trial.
Defense counsel further argues that “the circuit court improperly found that the materiality of Mr. Avery’s newly discovered evidence is exclusively contingent upon its satisfaction of the Denny test for admissibility of potential third-party suspect evidence,” indicating a disagreement on the legal standards applied to Avery’s new evidence.
Steven Avery remains incarcerated, serving a life sentence for Halbach’s murder, which occurred on October 31, 2005. Despite numerous legal challenges and changes in his defense team over the past 18 years, Kathleen Zellner, Steven Avery Lawyer, continues to express optimism that new evidence will ultimately prove his innocence.
The Media Spectacle: “Making a Murderer” and “Convicting a Murderer”
Avery’s case gained widespread notoriety through the Netflix series “Making a Murderer,” released in 2015. The series sparked significant media attention and public debate but also faced criticism for allegedly presenting a biased perspective, potentially revictimizing Halbach and her family, and unfairly portraying law enforcement.
In response, the Daily Wire released “Convicting a Murderer” in September 2023, aiming to provide a counter-narrative to “Making a Murderer.” As reported by the Wisconsin Law Journal, this docuseries sought to reveal information omitted by the Netflix production, including what some legal experts described as “rumors and corner bar gossip.”
Dean Strang, one of Avery’s original defense attorneys featured in “Making a Murderer,” expressed disinterest in the Daily Wire series. During a summer interview with the Wisconsin Law Journal, Strang stated, “I don’t need a movie that runs for 10 hours to tell me about this case. I was one of the lawyers on the case. I spent 500 hours in a courtroom over 15 months. I lived the case. I had a front-row seat. I don’t need a DailyWire docuseries to help me with that.”
Strang further defended “Making a Murderer” by saying, “’Making a Murderer’ left out rumors and gossip. I have even less interest in hearing about rumors and gossip… I can assure you, there is nothing significant that happened in this trial or pre-trial proceedings that ‘Making a Murderer’ left out.”
However, Shawn Rech, director of “Convicting a Murderer,” suggested that the sheer volume of omitted material from “Making a Murderer” implies a potentially skewed portrayal of Avery. “There were so many of them it’s pretty hard to believe it wasn’t showing a portrait of who Avery really is,” Rech noted.
Strang countered this by arguing that any information omitted by “Making a Murderer” and included in “Convicting a Murderer” was likely “unsupported gossip, or unproven truth,” deeming it inadmissible and irrelevant to the legal case.
An interviewee in “Convicting a Murderer” even acknowledged the speculative nature of some claims presented in the series, stating, “it was just bar talk. I had no proof that she said it or proof that it really did happen, it’s just what my friend told her.” This highlights the contrasting approaches and perspectives presented by the two docuseries regarding the Steven Avery case and the role of Steven Avery lawyer, Kathleen Zellner, in his ongoing legal battles.
Read More Avery & “Convicting A Murderer” News
The Wisconsin Law Journal has reached out to Netflix and the creators of “Making a Murderer,” Moira Demos and Laura Ricciardi, for comment, but has not received an immediate response. Netflix previously declined to comment on the contrasting narratives presented by “Convicting a Murderer.”
