Wisconsin (WBAY) – Steven Avery’s attorney and the state are going back and forth over a CD of evidence that was not given to Avery’s trial attorneys.
Avery is appealing his 2007 1st Degree Intentional Homicide conviction for the murder of freelance photographer Teresa Halbach in Manitowoc County. The case gained an international following with the 2015 Netflix docu-series "Making A Murderer."
Avery attorney Kathleen Zellner is asking the District Appeals Court II to grant her motion to supplement the record with evidence the defense says was withheld by the state until April of 2018.
Zellner says that evidence includes a forensic report, 14,099 images, an additional 1,625 recovered pornographic images, and 2,632 search results for "body, blood, bondage, bullet, cement, DNA, fire, gas, gun, handcuff, journal, myspace, news, RAV, stab, throat, tires."
The defense says this evidence was recovered from a computer at the Brendan Dassey’s home. Dassey, Avery’s nephew, was also convicted for Halbach’s murder. However, Avery’s defense claims another person in the Dassey home was using the computer to view "violent images of sexual acts" and dead women’s bodies.
Avery trial attorney Jerome Buting says he was unaware of the CD of evidence. Zellner says the evidence would have bolstered Avery’s argument for a Denny motion, which lets a defendant tell jurors about other potential suspects.
Zellner claims Avery did not get a fair trial because this evidence was unknown to them.
The state in its response says the court should deny Avery’s motion because he is "attempting to alter the record with material that the circuit court did not consider when making the decisions that are before this Court on review."
The state says issues not raised in trial court cannot be considered for the first time on appeal.
Avery’s defense countered by saying evidence of the violent pornography had been presented before the circuit court before, but not the CD with the "missing crucial data." That’s what the defense wants to to bring up before the court.
"This court should not allow the State to hinder Mr. Avery’s appeal by allowing it to deliberately withhold evidence that has been in its possession for years and is critical to the determination of Mr. Avery’s Brady issues," reads the defense response.
It’s up to the court now to rule on whether or not the evidence will be allowed in the appeal.
Once that decision is made, Zellner will be able to release her full brief for Avery’s appeal.
On Friday, Zellner tweeted that she had talked to Steven and asked her to retweet a message that he will never "give up on being exonerated."
The United States Supreme Court will discuss it on Brendan Dassey’s case on June 14. Dassey is asking for a review of his conviction, claiming his confession to the murder of Halbach was coerced by investigators.