Defense claims missing evidence in seeking new trial for Avery

John Ferak | USA TODAY NETWORK-Wisconsin

Show Caption Hide Caption Steven Avery's Evidence Suburban Chicago attorney Kathleen Zellner has vowed to use advances in scientific technology to prove that Steven Avery was wrongfully convicted of the Oct. 31, 2005 slaying of photographer Teresa Halbach.

Attorney Kathleen Zellner is taking aim at the conduct of prosecutors and investigators in an attempt to convince a judge that convicted murderer Steven Avery deserves a new trial.

Zellner is focusing on special prosecutor Ken Kratz, Manitowoc County detective Dennis Jacobs and Calumet County investigator John Dedering, who is now retired, in post-conviction court documents filed recently at the Manitowoc County courthouse.

Zellner contends that someone involved with Avery's prosecution intentionally lost or destroyed a crucial audio recording of murder victim Teresa Halbach's voice from her last day alive.

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Shortly after 2 p.m. on Oct. 31, 2005, Halbach left a voicemail message on the home answering machine of George and JoEllen Zipperer, an older couple living north of Manitowoc. The couple lived about 10 miles from Avery Salvage.

"The voicemail ... was copied by MCSD Detective Dennis Jacobs onto a CD. The CD of Ms. Halbach's voicemail recording on the Zipperer answering machine was never turned over to trial defense counsel and has allegedly disappeared," Zellner wrote in her recent post-conviction filing, asking Sheboygan County Judge Angela Sutkiewicz to grant Avery a new trial.

"Clearly, the destruction and/or concealment of Ms. Halbach's voicemail message to the Zipperers' leads to the reasonable conclusion that her voicemail refuted Mr. Kratz's timeline and so it was concealed from trial defense counsel," Zellner wrote.

Kratz did not respond to USA TODAY NETWORK-Wisconsin's request seeking comment on several allegations contained within Zellner's motion. She accuses Kratz of prosecutorial misconduct, claiming he violated Avery's right to a fair trial more than a decade ago.

If Zellner can prove at least one "Brady violation" occurred, the judge will typically overturn the conviction and order a new trial, said Daniel Medwed, a law professor at Northeastern University in Boston.

A Brady violation is defined as the prosecution's failure to disclose evidence to the defense team, depriving a criminal defendant of a fair trial.

"It's a rule that's designed to even the playing field because prosecutors typically of course have all the power in having access to information," Medwed told USA TODAY NETWORK-Wisconsin this week.

Uncovering a Brady violation on the issue of whether Halbach left the Avery property alive would be vitally important, he added.

"That would be very strong evidence," Medwed said. "In theory, evidence suggesting that Teresa Halbach was somewhere else other than the Avery compound could be compelling evidence."

Zellner has accused Kratz of committing four Brady violations as part of his quest to convict Avery and his nephew Brendan Dassey.

Missing CD of Zipperer voicemail message

Zellner determined the now-missing CD was made after a second visit to the Zipperers' home by Jacobs and Dedering.

"Suspiciously, Mr. Kratz never played the recording of the 2:12 p.m. voicemail for the jury," Zellner stated in her 1,250-page post-conviction motion. "It is reasonable to conclude that Mr. Kratz concealed the 2:12 p.m. voicemail because it confirmed that the Zipperers' residence was Ms. Halbach's last stop."

To bolster her contention, Zellner has provided the judge with a recorded phone conversation from the morning of Saturday, Nov. 5, 2005, involving Calumet investigator Mark Wiegert and Manitowoc County Detective Dave Remiker.

"In that conversation ... they concluded that Ms. Halbach's first appointment was with Mr. (Steven) Schmitz, her second appointment was with the Averys and her third appointment was with the Zipperers," Zellner stated.

"Obviously, Investigator Wiegert and Detective Remiker based their conclusion on the Zipperer voicemail left by Ms. Halbach, which was listened to by investigators on Nov. 3, 2005 at the Zipperer residence."

On the night of Nov. 3, 2005 — hours after Halbach's mother reported her daughter missing — Dedering, Remiker and Manitowoc County Sgt. Andrew Colborn drove out to question the Zipperers. "I did review the voicemail messages from Teresa Halbach indicating that she was calling on Monday about 2:15 p.m.," Dedering stated in his report.

Then on Nov. 6, 2005 — the day after Pam Sturm spotted the RAV4 on the Avery property — Jacobs and Dedering returned to the Zipperer home a second time.

"It should be noted that this voice mail message or answering machine message was subsequently copied by Detective Jacobs on Sunday, Nov. 6, 2005," Dedering stated.

Jacobs, however, produced no written reports to document any of his investigative activities during the entire eight-day homicide investigation related to the Avery Salvage Yard, even though Jacobs was one of the mainstays. Jacobs has been a member of his agency's detective unit since around 2000.

This April 20, Assistant Attorney General Tom Fallon advised Zellner that "neither Calumet County nor the Manitowoc Sheriff's Departments have been able to locate the CD of Ms. Halbach's voicemail left on the Zipperer answering machine."

Zellner told USA TODAY NETWORK there was no apparent chain of custody evidence log for the CD made by Jacobs.

Here are the other instances of suspected Brady violations, as outlined by Zellner:

Concealing fuel levels from Halbach's RAV4

Halbach bought a full tank of gas less than 48 hours before she vanished. Her RAV4 had a fuel capacity of 15.3 gallons, Zellner noted. "Mr. Fallon has confirmed on April 20, 2017 that the State failed to determine and document the gas level remaining in Ms. Halbach's vehicle when it was discovered on the Avery's property. Clearly, the State did not want the mileage revealed because it would have completely refuted its theory that Ms. Halbach was killed on the Avery property and demonstrated that Ms. Halbach and her car were driven many more miles after she left the Avery property."

This week, Zellner told USA TODAY NETWORK, "We feel pretty confident that an extra 100 miles were put on the vehicle after she left Avery's. That's why the fuel level was that critical" for Avery's lawyers Dean Strang and Jerry Buting to have had access.

Edited flyover video of Avery Salvage Yard

The day before Halbach's missing RAV4 turned up on the far corner of the Avery's property, Calumet sheriff Jerry Pagel and investigator Wendy Baldwin conducted a long flyover search, equipped with a video camera to record the event.

"Wendy Baldwin and Sheriff Pagel were in the air for around four hours, yet the State produced only three minutes of footage," Zellner stated. "Mr. Kratz saw the unedited flyover video and knew that the RAV4 was not there at that time, but knew that the State's case might fail if the RAV4 was not present before 6 p.m. on Nov. 4. The video was intentionally edited to conceal the fact that the RAV4 was not present at the time of the flyover on Nov. 4, 2005."

Concealed the RAV4 was planted on Avery's property

Josh Radandt, operator of the adjacent quarry, furnished Zellner a sworn affidavit indicating someone used his property to move the victim's RAV4 onto Avery's property. "I was told by the Department of Justice agents that they believed Teresa Halbach's vehicle was driven to the Kuss Road cul-de-sac ... past my hunting camp until reaching an intersection with a gravel road that ran northeast into the Avery property," Radandt stated, adding that several police scent-tracking dogs intensely focused on several locations roughly a half-mile away from Avery's property.

According to Zellner's filing, "DOJ investigators never authored a report documenting their conversations with Mr. Radandt about the RAV4 being driven from his property and planted on Mr. Avery's property. Mr. Kratz did not call Mr. Radandt as a witness at Mr. Avery's trial."

No court dates have been set in connection with the motion filed by Zellner.

John Ferak: 920-993-7115 or jferak@gannett.com; on Twitter @johnferak