Appleton Post-Crescent

APPLETON - Steven Avery has lost multiple appeals since he was convicted in the 2005 murder of Teresa Halbach, but his attorney isn’t about to throw in the towel.

Kathleen Zellner, who is representing Avery, the central focus in the Netflix docu-series “Making a Murderer," claims that new evidence points away from her client as the killer. She also argues that authorities planted evidence to convict Avery.

“Steven Avery is innocent & critics have zero grasp of facts,” Zellner said in a recent tweet.

Police and prosecutors who were involved in Avery's conviction have rejected those claims. They have been buoyed by recent rulings by a Sheboygan County judge that denied Avery’s motion for a retrial.

The case now rests with the Wisconsin Court of Appeals, and legal experts say Zellner’s path to victory is extremely difficult — if not insurmountable.

Former Wisconsin Supreme Court Justice Janine Geske said the defense team's focus on newly discovered evidence and a more detailed examination of previous evidence don't guarantee victory in the appeals court.

Geske said convincing evidence must be presented that clearly excludes Avery as Halbach's killer.

“That’s a very high standard,” Geske said. “You can’t just rehash old evidence. (Zellner) is going to have a very difficult time to get this judgment reversed, and I think that is unlikely that will happen.”

“There is so much circumstantial evidence (against Avery); you have to overcome a high burden to get a new trial.”

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Geske said she believes the Court of Appeals will affirm the ruling by the Sheboygan County judge, and predicted that the Wisconsin Supreme Court wouldn’t hear the appeal.

If Avery loses in the Wisconsin court system, he has the option of seeking relief from the federal courts by claiming his constitutional rights were violated.

Zellner has vowed to take the case to the ends of the legal system.

“We fully expect the case to be reversed by the higher court in Wisconsin,” Zellner stated in a release following the judge’s denial of a new trial for Avery. “However, regardless of what happens in Wisconsin, we will pursue the case in federal court all the way to the U.S. Supreme Court because Mr. Avery did not receive a fair trial because of numerous constitutional violations.”

Michael M. O'Hear, professor of law, Marquette University Law School, said it’s difficult to predict how the appeals by Avery will fare.

“In general, appellate courts tend to affirm lower-court decisions, especially when it comes to questions about scheduling and the handling of evidence, which may be part of Avery's appeal,” O’Hear said. “Appellate courts are somewhat less deferential when it comes to lower-court decisions about what the law is. Certainly, though, it is always better to be the party that won in the lower court.”

O’Hear said it also is hard to predict how long it could take for the judicial system to deal with Avery’s appeals.

“If Avery goes to litigates all the way through the state court system and then moves to the federal system, it is possible that the proceedings could take several more years,” he said. “On the other hand, there are mechanisms for the summary dismissal of habeas corpus petitions in federal court, which could potentially expedite matters.”

Professor Daniel Medwed of Northeastern Law School in Boston said a key factor in Avery’s favor could be the circuit judge’s refusal to hold an evidentiary hearing before issuing her ruling.

“The challenge for Steven Avery is he has to mount a cumulative error argument. Each of these errors might not create doubt, but when you add them up, it should give the judges pause," he said.

“It’s a combination of all of these things. But it’s not easy since appeals courts are often deferential. The best argument he has is, ‘I should have had a hearing.'”