Alison Dirr

Appleton Post-Crescent

More than a decade ago, the prosecutor in Steven Avery's trial duped jurors into believing that all of victim Teresa Halbach's bones were on Avery's land, his post-conviction attorneys argue in their latest motion.

"In order to win Mr. Avery's conviction and exclude everyone else as the perpetrator, the State had to convince the jury that Mr. Avery alone was connected to the crime scene," attorneys Kathleen Zellner and Steven Richards wrote in a motion filed Monday in circuit court. "To establish a crime scene linked only to Mr. Avery the State created a narrative that Teresa Halbach ... was murdered in Mr. Avery's garage and burned in his burn pit."

Prosecutors presented a "false forensic story" to jurors by claiming that bones found in the Manitowoc Gravel Pit weren't human, only to implicitly acknowledge that the bones were Halbach's by returning them to her family years later, his attorneys wrote.

"The admissions of the State the Ms. Halbach's bones were in the Gravel Pit changed the scene of the crime to a location which is contrary to all the representations made to the jury by (former Calumet County District Attorney) Kenneth Kratz ... to obtain Mr. Avery's conviction," they wrote, also arguing that it also undermines confidence in the verdict against him.

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His attorneys argue that by returning the bones to Halbach's family in 2011 without notifying Avery or his attorney, the state violated Avery's due process rights and its duty to preserve evidence.

The Court of Appeals in February granted his attorneys' request to send the case back to the circuit court to address the issue, ordering that the circuit court conduct any necessary proceedings to address the claims and enter an order with its findings and conclusions.

Sheboygan County Judge Angela Sutkiewicz is presiding over the case in circuit court.

In the motion, Avery's attorneys wrote that Sutkiewicz should recuse herself from further proceedings because she presided over the Halbach family's civil lawsuit against Avery.

"Having presided over the lawsuit filed by the Halbach family against Mr. Avery, Judge Sutkiewicz's ability to be impartial in the ongoing criminal proceedings against Mr. Avery is reasonably subject to question," the attorneys wrote.

The attorneys also wrote that her previous affiliation with Kratz when they both served on the five-member Crime Victims Rights Board during Avery's trial raised questions about Sutkiewicz's impartiality.

Avery and his nephew, Brendan Dassey, were convicted in Halbach's 2005 murder. The Wisconsin men are serving life sentences and are fighting their convictions. Their cases were featured in the internationally popular Netflix docuseries "Making a Murderer" and "Making a Murderer Part 2."

Contact Alison Dirr at 920-996-7266 or adirr@gannett.com. Follow her on Twitter @AlisonDirr.