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State of Wisconsinof WISCONSIN Court of Appeals District II Case 2017AP002288 Corrected Brief of Appellant Filed 10-18-2019 Page 1 of 150 Case No. 2017 AP 002288 RECEIVED In the 10-18-2019 CLERK OF COURT OF APPEALS State of WisconsinOF WISCONSIN Court of Appeals District II STATE OF WISCONSIN, Plaintiff-Respondent, v. STEVEN A. AVERY, Defendant-Appellant. _______________________________________ On Appeal from the Orders Denying Postconviction Relief and Additional Scientific Testing Entered in the Circuit Court of Manitowoc County, Case Number: 2005CF000381. The Honorable Angela W. Sutkiewicz, Presiding Judge. CORRECTED BRIEF OF DEFENDANT-APPELLANT STEVEN A. AVERY KATHLEEN T. ZELLNER STEVEN G. RICHARDS Admitted Pro Hac Vice State Bar No. 1037545 KATHLEEN T. ZELLNER & ASSOCIATES, PC EVERSON & RICHARDS, LLP 1901 Butterfield Road 127 Main Street Suite 650 Casco, Wisconsin 54205 Downers Grove, Illinois 60515 (920) 837-2653 (630) 955-1212 Attorneys for Defendant-Appellant COUNSEL PRESS ∙ (866) 703-9373 PRINTED ON RECYCLED PAPER Case 2017AP002288 Corrected Brief of Appellant Filed 10-18-2019 Page 2 of 150 TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... v ISSUES PRESENTED ............................................................................................. 1 STATEMENT ON ORAL ARGUMENT AND PUBLICATION .......................... 4 STATEMENT OF THE CASE AND PROCEDURAL HISTORY ........................ 5 I. The State’s case ............................................................................................. 5 A. The State’s timeline for October 31, 2005 and witnesses .................. 6 B. The State’s forensic evidence ........................................................... 10 II. The Defense Case ........................................................................................ 23 A Defense forensic evidence ................................................................ 23 B. Third-party suspects ......................................................................... 25 III. Postconviction and direct appeal ................................................................. 27 IV. Pro Se postconviction § 974.06 ................................................................... 28 V. Motion for Scientific Testing § 971.23(5), § 974.07, and Second Postconviction § 974.06 .............................................................................. 29 ARGUMENT ......................................................................................................... 33 I. The circuit court abused its discretion in denying Mr. Avery’s motion to vacate its October 3, 2017, order and allow additional scientific testing ... 33 A. Standard of review ........................................................................... 35 B. The circuit court erred in not complying with the prior trial court order regarding scientific testing ...................................................... 36 i Case 2017AP002288 Corrected Brief of Appellant Filed 10-18-2019 Page 3 of 150 II. The circuit court abused its discretion in summarily dismissing Mr. Avery’s second motion pursuant to Wis. Stats. § 974.06 without addressing the 5 Brady claims raised and in subsequently denying Mr. Avery’s Motion to Supplement which raised a 6th Brady claim all of which deprived him of due process, in violation of the Wisconsin and United States Constitution ........................................................................... 39 A. Standard of review ........................................................................... 39 B. Brady violation re Mr. Rahmlow ..................................................... 40 C. Brady violation re Mr. Radandt ....................................................... 45 D. Brady violation re original flyover video taken on November 4, 2005 .............................................................................................. 46 E. Brady violation re Zipperer voicemail ............................................. 46 F. Brady violation re Ms. Heitl ............................................................. 48 G. Brady violation re Dassey-Janda CD ............................................... 49 III. The circuit court erred as a matter of law in failing to address Mr. Avery’s claim of ineffective assistance of trial counsel............................................ 65 A. Standard of review ........................................................................... 65 B. Failure to hire experts case law ........................................................ 66 C. Failure to hire experts ....................................................................... 68 D. Failure to investigate and impeach the State’s primary witness: Bobby ............................................................................................... 82 E. Failure to establish Mr. Hillegas as a Denny third-party suspect .............................................................................................. 87 F. Trial defense counsel failed to investigate a variety of additional topics ............................................................................... 89 ii Case 2017AP002288 Corrected Brief of Appellant Filed 10-18-2019 Page 4 of 150 IV. The circuit court erred as a matter of law, in ruling that it was not authorized by statute to resolve claims of ineffective assistance of prior postconviction counsel, and that Mr. Avery would have to pursue that claim with the Court of Appeals pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992) ................................. 89 A. Standard of review ........................................................................... 89 B. Mr. Avery is not challenging ineffectiveness of prior appellate counsel .............................................................................................. 90 C. Mr. Avery’s current claims are clearly stronger than prior postconviction counsel’s claims ....................................................... 91 V. The circuit court abused its discretion in dismissing Mr. Avery’s second motion pursuant to Wis. Stats. § 974.06 without requiring the State to respond or conduct an evidentiary hearing ................................................. 97 A. Standard of review ........................................................................... 97 VI. The circuit court erred as a matter of law in applying the wrong standard to the newly discovered evidence ............................................... 107 VII. Mr. Avery raised sufficient reason as to why these issues could not have been raised in prior motions pursuant to Wis. Stats. § 974.06 ......... 110 A. Standard of review ......................................................................... 111 B. Mr. Avery has demonstrated a sufficient reason for failing to raise the current claims earlier ....................................................... 111 C. Mr. Avery’s pro se motion ............................................................. 113 VIII. The circuit court abused its discretion in denying Mr. Avery’s motion to reconsider and his three supplements to said motion, which included new evidence developed after his original filing on June 7, 2017 .......................................................................................... 116 A. Standard of review ......................................................................... 116 B. Mr. Avery’s motion for reconsideration and its supplements presented new evidence not ruled upon in the circuit court’s October 3, 2017 order..................................................................... 117 iii Case 2017AP002288 Corrected Brief of Appellant Filed 10-18-2019 Page 5 of 150 IX. The circuit court abused its discretion in ignoring the subsequent briefs submitted by the parties incident to the motion to supplement ...... 121 X. The circuit court erred in denying Mr. Avery’s supplemental motion for postconviction relief pursuant to Wis. Stat. § 974.06 concerning the discovery of human bones in the Manitowoc County Gravel Pit before trial ................................................................................................ 121 (a) Materiality ...................................................................................... 126 (b) Potentially exculpatory evidence preserved under Wis. Stat. § 968.205 ........................................................................................ 127 (c) The DNA evidence preservation statute presumes that every violation constitutes “bad faith." .................................................... 128 CONCLUSION .................................................................................................... 132 CERTIFICATION AS TO FORM/LENGTH ...................................................... 134 CERTIFICATE OF COMPLIANCE WITH RULE 809.19(12) .......................... 135 iv Case 2017AP002288 Corrected Brief of Appellant Filed 10-18-2019 Page 6 of 150 TABLE OF AUTHORITIES Alvarez v. Boyd, 225 F.3d 820 (7th Cir. 2000) ............................................................................ 81 Banks v. Dretke, 540 U.S. 668 124 S. Ct. 1256 (2004) ...................................................................................... 54 Beaman v. Freesmeyer, 776 F.3d 500 (7th Cir. 2015) .......................................................................... 110 Bies v. Sheldon, 775 F.3d 386 (6th Cir. 2014) ...................................................................... 64, 65 Brady v. Maryland,
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