Avery requests new trial, cites planted evidence, false testimony

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.

APPLETON - The attorney for Steven Avery filed a motion for a new trial on Wednesday, claiming that his conviction in the 2005 Teresa Halbach murder was based on planted evidence and false testimony.

"Mr. Avery's post-conviction counsel have completed scientific testing and conducted an extensive re-investigation of his case, which demonstrates that planted evidence and false testimony were used to convict Mr. Avery of the first degree intentional homicide of Teresa Halbach," attorney Kathleen Zellner wrote in a 1,272-page document filed at the Manitowoc County Clerk of Courts office.

She claims that a new trial is warranted "in the interests of justice" and because "the real controversy was never tried."

An email to a Wisconsin Department of Justice spokesperson seeking comment was not immediately returned Wednesday.

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Avery and his nephew, Brendan Dassey, were convicted in the 2005 murder of Halbach. The men have maintained their innocence, and Dassey’s case is pending in federal court.

Their cases gained international attention in the wake of the Netflix docu-series “Making a Murderer,” which launched in December 2015.

In Wednesday's filing, Zellner claims:

Avery's trial attorneys, Dean Strang and Jerry Buting, failed to prove that evidence had been planted because they lacked experts and they didn't conduct a thorough investigation.

Former Calumet County District Attorney Ken Kratz charged Avery "despite knowing that Brendan (Dassey's) confession was fabricated" and that ethical violations on Kratz's part impaired Avery's right to a fair trial.

The damaged bullet in Avery's garage was not shot through Halbach's head.

A key discovered in Avery's bedroom was planted by Lt. James Lenk and Sgt. Andrew Colborn of the Manitowoc County Sheriff's Department.

The officials involved in the case have previously denied any misconduct.

"Because the State did not need to establish motive, it did not spend any time trying to figure out why Ms. Halbach was murdered," Zellner wrote. "Both Mr. Avery and Ms. Halbach are victims of a justice system whose success depends upon the integrity, competence and devotion of judges, law enforcement, prosecutors, and defense attorneys. Both Ms. Halbach and Mr. Avery have yet to receive justice."

Zellner called Kratz's theory of the case "one of the most preposterous tales ever spun in an American courtroom."

She described Kratz's first theory as one in which Avery would have left significant amounts of incriminating evidence on his property but then removes all forensic traces of Halbach's presence — "a feat that is comparable to defying the laws of gravity and forensic science."

Kratz didn't pull any punches responding on Wednesday afternoon via an email to USA TODAY NETWORK-Wisconsin.

"I need to read the entire filing before I respond to specific allegations," he said. "However, Ms. Zellner must know that Brendan Dassey was convicted by a 12-person jury, based in part on his March 1, 2006 interview with law enforcement. For Ms. Zellner to allege that the prosecutor 'knew the confession was fabricated' is incredibly irresponsible, and frivolous.

"I understand she has launched 1,200 pages of allegations to see if anything sticks —Ms. Zellner, in early 2016, promised test results that would 'prove' her client was wrongfully convicted — I suspect that, with science apparently now confirming Mr. Avery's guilt, she has chosen to make whatever incendiary allegations she can to make headlines, with little regard for the Halbach family or the truth."

Wednesday’s legal action marked the single biggest development by Zellner during her 18 months representing Avery. Last August, she filed a nearly 150-page legal brief seeking additional scientific testing on several items of evidence related to the 2005 murder investigation.

At the time, Zellner requested additional scientific testing of items including the spare vehicle key that was found inside Avery’s bedroom by Manitowoc County sheriff’s detective James Lenk and evidence technician Sgt. Andrew Colborn.

Zellner also sought independent testing of the bottom of the hood latch of Halbach’s Toyota RAV4 and tests on several blood stains that turned up inside Halbach’s RAV4 – blood evidence that supposedly proved to belong to Avery.

Last August, Zellner proclaimed that the new round of testing would determine whether or not evidence was planted to frame her client for Halbach's death.

RELATED: Zellner vows extensive tests in Avery case

Zellner also said the testing would be the “most comprehensive testing motion ever filed in the state of Wisconsin, probably one of the most comprehensive motions ever filed in the United States.”

Zellner had indicated that a “large number of scientists” from Stockholm, Sweden, Vienna, Austria, California and Illinois would carry out the tests.

Last August, Zellner told a throng of news reporters camped out at the downtown Manitowoc courthouse that if evidence was indeed planted, “science is going to catch up with you.”

“Mr. Avery is requesting the comprehensive, thorough and most advanced forensic testing currently known for one simple reason: he is completely and totally innocent of the murder of Teresa Halbach.

“Mr. Avery has already completed a series of tests that will conclusively establish his innocence in conjunction with the additional forensic tests he is seeking in this motion.”

Alison Dirr: 920-996-7266 or adirr@gannett.com; on Twitter @AlisonDirr; John Ferak of USA TODAY NETWORK-Wisconsin: 920-993-7115 or jferak@gannett.com; on Twitter @johnferak; Andy Thompson: 920-996-7270 or awthompson@postcrescent.com; on Twitter @Thompson_AW