The appeal of Making A Murderer subject Steven Avery suffered a serious setback earlier this week when a Wisconsin judge denied his request for a new trial. But now his lawyer Kathleen Zellner is firing back with a motion to vacate the decision, stating she had a deal with the Attorney General’s office to test more evidence and amend her appeal before a ruling was made.
“The basis for the order to vacate will be that an agreement was reached between Mr. Avery’s attorneys and the Wisconsin Attorney General on September 18, 2017, to conduct further testing and allow Mr. Avery to amend his petition with new scientific test results and additional witness affidavits,” Zellner wrote in a press release. “With the addition of these new scientific test results and new evidence, Mr. Avery’s attorneys remain confident that his conviction will be vacated.”
Back in June, Zellner filed a 1200 page petition based largely around evidence the court allowed her to send to experts for retesting. In the decision denying Avery a new trial, the judge dismissed the ‘ambiguous conclusions’ of those experts and suggested the testing was inadmissible regardless due to a previous appeal Avery had filed on his own back in 2015.
Zellner’s filing to vacate the decision claims the state had agreed to let her perform new tests on victim Teresa Halbach’s RAV4 jeep, a lug wrench found inside it, and the vehicle’s discarded license plate. Testing would also be done on a pelvic bone discovered in a quarry that Avery’s original trial lawyers argued might be Halbach’s. In exchange for these allowances, Zellner was set to “remove the issues of ethical violations perpetrated by prosecutor Kenneth Kratz” from her appeal.
So it’s not clear exactly how or why Sheboygan County Circuit Judge Angela Sutkiewicz ended up ruling on the case early. Given the amount of scrutiny on the case following the success of the Netflix documentary series Making A Murderer, mistakes this big shouldn’t be happening. That’s led some believers in Avery’s innocence to wonder whether this is a legal machination designed to keep him behind bars.
Zellner herself fed into the possibility that the state may be reneging on their agreement to retest evidence, tweeting (and then deleting) “Why the fear? Test ALL of the evidence & stop hiding behind legal technicalities,” with the hashtag #MakingExcuses. Her regular use of social media to influence public opinion is unusual for a lawyer, but we can’t argue with the results. With a 19-0 record, she’s righted more wrongful prosecutions than any other attorney in America.