The State of Wisconsin filed its Response to Defendant’s Motion to Supplement Previously Filed Motion for Post-Conviction Relief this past Thursday, July 27th.

The response, signed by Assistant Attorney General Thomas J. Fallon, was filed alongside 8 exhibits, including the sworn affidavit of former Detective Michael Velie.

Velie, of the Grand Chute Police Department, was tasked with conducting forensic examinations for the computers of Steven Avery, Teresa Halbach, and the home computer of Barbara Janda, during Calumet County’s investigation into the murder of Halbach.

Within Velie’s affidavit, the now Grand Chute Police Department Captain offered sworn statements pertaining to forensic examinations performed on the Janda home computer’s hard drive. From Velie’s examination, a ‘forensic image’ was transferred to 7 DVDs along with a final report in the form of a CD titled, “Dassey Computer, Final Report, Investigative Copy.”

The reasoning behind Velie’s affidavit was to confirm that all of the data on the CD was gleaned from the 7 DVDs provided to Avery’s original attorneys, Jerome Buting and Dean Strang, some 7 weeks prior to trial. In doing so the State argues that even if Buting and Strang did not receive the CD, they were provided the necessary evidence in the form of the DVDS, and ample time to perform their own analysis—Velie’s report took 17 days to formulate, whereas, according to the State, Strang and Buting had 7 weeks to achieve the same results.

Indeed, Fallon, in an attempt to further confirm that the necessary evidence was disclosed pointed to Special Agent Thomas Fassbender’s report alluding to the existence of the ‘Dassey Computer, Final Report, Investigative Copy.’

Within Fassbender’s report the Velie CD, and 6 DVDs were mentioned along with sections of instant messages believed to show correspondence between Brendan Dassey and various friends discussing the potential guilt of Avery.

Fassbender further mentioned pornography found on the computer including, “[i]mages depicting bondage, as well as possible torture and pain…images of injuries to humans, to include a decapitated head, a badly injured and bloodied body, a bloody head injury, and a mutilated body.”

While the State asserts that no Brady violation occurred—due to the disclosure of the DVDs and Fassbender’s Case Report before the deadline for such passed on December 15th, 2006—a closer look at the timings of disclosure may suggest otherwise.

Fallon’s reasoning that both Buting and Strang were afforded ‘7 weeks’ to render the same results as Velie are debatable for the following reasons.

While Avery’s attorneys did indeed have 7 weeks between receiving the 7 DVDs and Fassbender’s report before Avery’s trial, for purposes of Denny—third party liability—they only had 20 days. Due to the nature of the timing of disclosure, a minimum of 3 days were lost over the Christmas period owing to public holidays, meaning Buting and Strang were allotted the same time period as Velie.

However, the parity in time afforded to both parties fails to take into account the time spent sourcing the necessary expert willing to perform a forensic analysis akin to that of Velie’s. The previous calculations also assume that either Strang or Buting would have noticed the omission of Velie’s Investigative Report immediately, and further managed to hire the necessary expert under the proviso that they were willing to start work that very day. Indeed, within Velie’s affidavit, he concedes that he was presented with the computer some 2 days prior to beginning work on the forensic analysis. Would it be fair to consider that Velie’s ‘Final Report’ actually took 19 days rather than 17? Perhaps an even fairer indication would be to set the timeframe from the moment that Velie was approached to carry out his duties?

Much has been made of the computer being wrongfully attributed to Brendan Dassey by Avery’s postconviction attorney Kathleen Zellner, through further analysis of the Velie CD by her own expert Gary Hunt.

Indeed, Velie’s naming of his ‘Final Report’ CD began the process by which then District Attorney Kenneth Kratz, would ultimately proffer that the computer belonged to Brendan Dassey via communication with Strang on December 15th—the deadline for State disclosure of evidence.

By the strictest of terms, Velie’s report should have read, ‘Janda Home Computer, Final Report, Investigative Copy.’ One only need look at the timeline of events that occurred between April 24, 2006—Velie begins forensic examination—and December 15, 2006—State deadline for disclosure of evidence to Avery’s attorneys—to realise that skulduggery occurred.

Before writing his December 7th Case Report in relation to the Velie CD, Fassbender was in possession of said CD for some 6 months, limiting the time that disclosure of discovery could be made to Buting and Strang. Between the time that Fassbender received the CD in question and the time he wrote his report, no fewer than 24 separate emails of discovery had been sent from Kratz to Strang and Buting.

Kratz provided Avery’s defense with Fassbender’s case report on December 14th, along with 67 further entries—totalling some 87 separate items, including more than 500 pages of reports—in the largest single release of discovery of the entire investigation. The following day came the disclosure of the 7 DVDs—listed as 7 CDs by Kratz and 6 DVDs by Fassbender.

Kratz, itemizing the DVD’s as CD’s, made no mention of the Velie report, although reports on both Avery’s and Halbach’s computers were included. Computer forensic reports for both were sent to Avery’s former attorney Erik Loy on February 9, 2006, just a matter of weeks before Strang and Buting took over legal proceedings. Of potential importance is the fact that Kratz disclosed Velie’s reports on both previous forensic reports in plain sight—alongside corresponding reports by Fassbender—whereas the ‘Dassey Final Report’ was only mentioned, and not provided in discovery.

Perhaps of interest too was the style in which Kratz’s communications with Avery’s attorneys changed during the course of the investigation into Halbach’s murder.

Up until his discovery email dated December 8th, Kratz itemized DCI reports from varying agents, including Fassbender separately. Indeed, during the first few months of investigation Kratz’s discovery emails were in the form of:

However, as the investigation progressed, Kratz appeared to become less and less transparent.

Whilst the timing and style of Kratz’s emails gradually sought to muddy the waters of discovery, it would not be until January 25th, 2007, that he would make mention of Velie’s ‘Dassey, Final Report’ via a stipulation email sent to Strang. As with the 7 DVDs, that Kratz incorrectly identified as CDs, he would attribute the ‘Dassey Final Report’ to that of Brendan Dassey, and further state that Velie “[f]ound nothing much of evidentiary value. Of course by this time Avery was less than 2 weeks away from standing trial and the possibility of introducing third party suspects had passed.

Whether the circuit court find that a Brady violation took place or not remains to be seen, they are due to rule on Avery’s Motion on September 4th. Before that however, Zellner will have her chance to reply to the State’s response. Zellner’s reply, expected August 3rd, will no doubt set fourth Avery’s reasoning’s as to why such a Brady violation should be confirmed by the court. As is her liking, Zellner took to twitter to point out that the State’s affidavit for Velie contained the incorrect spelling of his name. Likewise, Fallon committed a similar embarrassing mistake by spelling the name of the victim in this case, Theresa Halbach.

While affidavits from both Kratz and Fassbender may have potentially revealed more than that of Velie’s, the possibility of hearing sworn testimony from both still remains. Although it is clear that the State would rather avoid an evidentiary hearing—as mentioned in their response—the possibility of one taking place remains. Even if the circuit courts deems a hearing unnecessary, there still remains the option that one will be suggested via courts of a higher jurisdiction.

Kratz, also via twitter asserted last year that he would, “[r]etry this [Avery’s] case in a fucking heartbeat.” While Kratz—suspended for 4 months in 2010 over a sexting scandal—won’t get his wish, he may yet get to participate in Avery’s case should an evidentiary hearing be granted.

This time however, Kratz would be on the other side of the stand—something that Kathleen Zellner would readily take on in ‘a fucking heartbeat’ too.

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