Circuit court must hear motion in Steven Avery case, Wisconsin Court of Appeals orders

Show Caption Hide Caption Steven Avery Timeline A timeline of events in the case.

The Wisconsin Court of Appeals on Thursday remanded Steven Avery's case to the circuit court to address a CD his attorneys hope to make part of the record.

Meanwhile, about 30 supporters of Avery and his nephew, Brendan Dassey, gathered Friday in front of the Manitowoc County Courthouse to rally support for the two men convicted in the murder of Teresa Halbach. The rally was unrelated to Thursday's court order.

Avery's attorney, Kathleen Zellner, argues the CD was only disclosed to them in April and that it contains exculpatory, material evidence. The state's failure to disclose the disc earlier violates Avery's due process right to a fair trial, his attorneys argue, according to Thursday's filing.

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Prosecutors say it shouldn't be added to the record because it wasn't part of the record when the circuit court denied Avery's post-conviction motion and motions for reconsideration.

Sheboygan County Circuit Court Judge Angela Sutkiewicz is overseeing the case in circuit court.

But the Appeals Court said it can't consider items not presented to the circuit court.

"Based on the assertion that Avery recently received previously withheld discovery or other new information, we retain jurisdiction but remand this case to enable Avery to file an appropriate supplemental post-conviction motion in the circuit court," the Appeals Court said in its decision on the CD.

Avery's attorneys must file any supplemental post-conviction motions within 30 days and the circuit court was ordered to hold proceedings on the motion and issue a written decision within 60 days of the motion's filing.

The Wisconsin Appellate Court is letting us supplement our post-conviction motion with new Brady evidence: the CD. Back to circuit court first and then to App. Ct. w/a complete record. #MakingaMurderer @lifeafterten @EFMoriarty #TruthWins pic.twitter.com/0erKv8OBH9 — Kathleen Zellner (@ZellnerLaw) June 7, 2018

Avery and Dassey were convicted in the 2005 homicide of photographer Teresa Halbach. The criminal cases against them were chronicled in the Netflix docu-series "Making a Murderer," which was released in December 2015.

Dassey is also challenging his conviction.

Unrelated to Thursday's court order, about 30 people on Friday protested in front of the Manitowoc County Courthouse, many carrying signs that read “Free Brendan” and “We all live on Avery road.” One woman came from Belgium, and participants said another person from Australia was planning to come. Some passing drivers honked their horns in support, with protesters applauding in response.

Sandy Greenman, who calls herself Steven Avery’s on-again, off-again long-term girlfriend, said the protest has been in the works for a while, and that “it’s good to keep it in people’s minds. We know this courthouse is just a building, it can’t do anything, but we want to be able to keep the wheels of justice moving, and we hope this protest can help do that.”

She said she visits Avery in prison about once a week.

“I know he was convicted unfairly," she said. "At the very least, he deserves another trial.”

Krystyne Frandson of Fergus Falls, Minnesota, said she knew she wanted to get involved after binging 10 hours of the Netflix show “Making a Murderer.”

“I saw my son in Brendan,” she said. “My son has high-functioning autism, and I immediately saw him when I watched. In that situation, he would have said anything to get out of that room. I really think children under the age of 18 should not be interrogated without representation. I’m really here for Brendan.”

Frandson has since become friends with the Avery family. She was hoping more people would attend the rally, but noted there’s about 30,000 people following the family’s Facebook page.

“We’re here in the heart of Wisconsin, where people are really split on it,” she said. “Or they are tired of being the ‘Steven Avery’ town. I understand. I am really here to support the family. We just want justice.”