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STATE OF WISCONSIN CIRCUIT COURT MANITOWOC COUNTY STATE OF WISCONSIN, ) ) Respondent ) ) v. ) Case No. 05-CF-1381 ) STEVEN A. AVERY, ) RECEIVED ) Petitioner ) 1JUN O7 2017 CLERK OF ciRc01t CoO RT MANITOWOC COUNTY, WI NOTICE OF MOTION AND MOTION FOR POST-CONVICTION RELIEF PURSUANT TO WIS. STAT. 974.06 and 805.15 KATHLEEN T. ZELLNER, STEVEN G. RICHARDS Lead Counsel LOCAL COUNSEL DOUGLAS H. JOHNSON Casco, Wisconsin 54205 KATHLEEN T. ZELLNER & (920) 837-2653 ASSOCIATES, P.C. Atty#: 1037545 1901 Butterfield Road, Suite 650 Downers Grove, Illinois 60515 (630) 955-1212 Counsel for Petitioner Local Counsel for Petitioner TABLE OF CONTENTS TABLE OF CONTENTS ................. .. ..... ........................................................... .i TABLE OF AUTHORITIES ... ........ ................... .... ... .. ....................................................... .. ... .. ... x NOTICE OF MOTION AND MOTION FOR POST-CONVICTION RELIEF PURSUANT TO WIS. STAT.§ 974.06 and§ 805.15 PROCEDUilAL HISTORY ................ .... ...................... ... .. .. ........................ ....................... ......... ! Tria/.... ...................................... ................................................. ............................. .................. ....... 1 Post-Conviction Jvfotion Pursuant to Wis. Stat. § 974.02 ................................................................2 Pro Se Post-Conviction Motion Pursuant to Wis. Stat.§ 974.06 .................................................... 2 INTRODUCTION .............. .. ........................ ... ...................................... ........................ ................ 3 THE STATE'S CASE AT TRIAL ...... ......................................... ........................................... ... 15 Manitowoc County Resources Needed.for lnvestigation ............................................................... 15 Mr. Avery was the Last Person to see lvfs. Halbach Alive .... ......................................................... 16 Discovery of Victim 's Vehicle on Ave1J1Propert y ....................................... .................... .. ............ 17 Victim's Vehicle was Locked... .. ... ............................................ ........................ ................ ............. 18 Victim's Vehicle was Obscured..... ....................... ............................................. ................. .. ......... 18 Vehicle Batte1J1 Cable Disconnected to Prevent Detection ...................................................... ... .. 19 Victim 's Vehicle Could Not have been Driven from Fred Radandt Sons, Inc. Sand and Gravel Pit ("Radandt Pit") onto Ave,y Property ............................................................................................ 19 JviCSD Sergeant Andy Colborn ("Sgt. Colborn ") Did Not Discover Victim 's Car on November 3, 2005 ....... .. .. .......................... ................................................................................... .................. ...... 19 Mr. Ave,yis Blood Was Not Planted..................... ......................................................................... 19 Mr. Avery was Actively Bleeding.fi'om a Cut on his Finger ........................ .................................. 20 Discove,y of Victim is Electronics in Ave,y 's Burn Barrel.... ........................................................ 20 Two Gunshots Caused the Death ofthe Victim ............................................................................. 21 Mr. Ave1y 's Garage Had Room/or a Body.......... .... .............................. .. .................. ... .. .............. 21 Discove,y ofDamaged Bullet in Mr. Ave,y ·s Garage .............. ..................................................... 21 Ms. Halbach 's DNA on Damaged Bullet (Item FL) ........ ............... .. ... ........................ .................. 22 More Thorough Garage Search Done in March 2006................. .................................................22 Prima,y Burn Site was .Mr. Ave1J1' s Burn Pit..... ...... ......................................... .. .. ........................ 22 Mr. Ave1y's DNA on Hood Latch wasfi·om Sweat ................................... ,. .................. ................. 25 Jvfr. Ave,y 's DNA Found on Victim's Vehicle Key ........................ ................................................ 25 Does Not Matter ifthe Key is Planted. ................. ........................................ ................................. 26 The Killer was the Last Person to Hold the Key ...................................................... ......................26 Latent Prints on Car Were Not Suitable for Identification ................................................... ......... 26 Mr. Ave,y 's Blood.from his Bathroom Could Not have been Planted in Victim 's Vehicle ........... 26 State 's TheOIJ' ofMurder , Mui ilation ofBody, and Concealment of Vehicle ................... ............. 26 ff Law Enforcement Planted Evidence. Then Also Involved in Murder and Jvlutilation ................28 THE DEFENSE CASE AT TRIAL ..................... ............ ... .. .................. ............. .. .....................28 Ms. Halbach 's Killer Aided by Media Publicity .............................................. .............................. 28 Partial Skeletal Remains Found in lvlr. Ave1y 's Burn Pit .................................................. ........... 29 Bones in AtJr. Avery's Burn Pit were ./\t/oved...... ................................ ................................. ........... 29 Trial Defense Counsel's Theories About the Blood, Bullets, and Key .......................................... 31 1996 Blood Vial as Source o_f Planted Blood in the RA V-4 .. ... .. .................... ................................ 34 Lt. Lenk 's False Testllnony ....................................................... .. .. .............. ................................... 36 Damaged Bullet (Item FL) Not Linked lo Shell Casings Found h1 the Garage ............................. 37 ii Ms. Culhane 's Bias Against lvlr. Ave,-y ................... .. .... ...... .......................... ........................... .. ... .38 Hood Latch DNA From Contamination by State ·s Blood Spatter Expert ........ ............................ .39 Other Auto Trader Appointments Made by Someone Other Them Car Owner ................. .............. 39 The State's Theory ofMurder, Mutilation, and Concealment ofEvidence is lllogical ................. 39 Di·. LeBeau 's Opinion is Flawed .................................................................................................. .40 The Defense Timeline Placed Ms. Halbach at the Ave,y Property at 3:30-3:45 p.m. ................. .40 Other Witnesses Suspicious ...........................................................................................................41 State's Expert Testimony That Voicemail Deletions Require Use ofPassword ............... ............ .42 Jvfr. Avery Behaved Like an Innocent Man .................................................................................... .42 Sgt. Colborn Called In Ms. Halbach 's Plates on November 3 or November 4. 2005 ...... ............ .42 EVIDENCE SUPPORTING PETITIONER'S CURRENT POST-CONVICTION PURSUANT TO § 974.06... ....................................... .. .. ............ ... ........................................... .... 43 INEFFECTIVE ASSISTANCE OF TRIAL DEFENSE COUNSEL. ... ................................. .43 Applicable Lcn,v Re: Ineffective Assistance ofCounsel.. ............................................................... .43 Applicable Law Re: Duty to Investigate and To Present Expert Testimony ............... .................. .45 Failure ofTrial Defense Counsel to Investigate lvfr. Avery's Claim that his Blood Was Removed ji-om his Bathroom Sink and Planted in the RA V-4 .............. ...................... .................. ................. 50 Trial Defense Counsel's Failure to Present a DNA Expert 's Opinions about Blood Being Planted in the RA 11-4 ...........................................................................................................- ........................ 54 Applicable Law Re: The Admissibility ofConducting Experiments and Recreations ................... 54 Failure ofTrial Defense Counsel to Present a BloodSpatler Expert Who Had Conducted Experiments Which Demonstrated that Mr. Ave,y's Blood was Planted in the RAV-4 ................ 55 Failure ofTrial Defense Counsel to Present a Blood Spat/er Experl Who Had Conducted Experiments Which Refuted The Stale 's Blood Spatter Expert ·s Op;nion About Cause ofBlood Spatter on Rear Cargo Door ofRA V-4 ................. ................................... ...................................... 56 Failure ofTrial Defense Counsel, Because ofNot Hav;ng A Blood Spatter Expert, To Recognize 1996 Blood Vial Was Not the Source o,f Blood in the RAV-4 ............... ............ ............................. 57 iii Fa;Lw·e ofT rial Defense Counsel lo Demonstrate to the .fwy that Ms. Halbach 's Key Was Planted in Mr. Ave1y 's Bedroo,n ................................................................................................... 60 Failure of Trial Defense Counsel to Investigate and Demonstrate that Planted Toyota Key was a Sub-Key and Not a Master Key As Mr. Kratz Claimed............................................ .................. ... 63 Failure ofTrial Defense Counsel to Present a Trace Expert to Establish that
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