'Making a Murderer': How Steven Avery Could Still Get a New Trial

A judge denied his motion – but Avery's lawyer says there's more evidence that could lead to a new day in court

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'Making a Murderer': How Steven Avery Could Still Get a New Trial

It isn't over yet for Steven Avery. Yesterday, a Sheboygan County, Wisconsin, Circuit Court Judge denied the Making a Murderer subject's request for a new trial, stating that the defense had not met the legal standard for overturning his conviction for the 2005 murder of 25-year-old Teresa Halbach.

"Given the totality of evidence submitted at trial and the ambiguous conclusions stated in the experts' reports, it cannot be said that a reasonable probability exists that a different result would be reached at a new trial based on these reports," Judge Angela Sutkiewicz wrote in her decision to deny the ruling, which was in response to a 1,272 page motion filed by Avery defense attorney Kathleen Zellner last June.

After the ruling was made public, Zellner sent out a press release saying she would be filing a motion to vacate Sutkiewicz's decision. According to Zellner, on September 18th – less than two weeks ago – the Wisconsin Department of Justice agreed "to conduct further testing and to allow Mr. Avery to amend his petition with new scientific test results and additional witness statements." Those results were still outstanding and the amendment was still pending when Sutkiewicz made her decision; now the motion cannot be amended unless Sutkiewicz or a higher court reverses her decision.

In an email to Rolling Stone, Zellner confirms that the judge was not aware of the agreement and that her decision came as a surprise to everyone involved.

"I am planning to discuss the situation with the prosecutor from the AG's office on Friday," Zellner writes. "They were also quite surprised by this ruling. Our hope is that we can enter into an agreed order to vacate the order with the AG, because we had agreed to test numerous additional items of evidence – including an examination of the RAV4 to determine if additional evidence could be gathered and tested.… In addition to the forensic tests, we informed the prosecutors in our face to face meeting on September 18, at their offices in Madison, Wisconsin, that we had three significant new witnesses on new Brady violations. Brady violations are the most frequent basis for convictions being vacated."

Zellner also says there are still "numerous items" listed on her original motion that have yet to be tested, suggesting that even without the new evidence, Judge Sutkiewicz's decision was based on an incomplete record. In her ruling, Sutkiewicz focused primarily on claims of evidence tampering, writing that test results related to the DNA found on Halbach's car key and car hood latch "inclusive." Zellner says of the judge's sparse six-page ruling contained "clear factual/legal errors" and "failed to even address certain issues." (Judge Sutkiewicz's office declined to comment.) Regardless, she says, "Our preference is to file an agreed motion with the AG to vacate this order."

Whether the AG's office will play ball remains to be seen – but yesterday, Wisconsin Attorney General Brad Schimel said he was "pleased" with Sutkiewicz's decision. (The Wisconsin Department of Justice did not immediately respond to a request for comment.) 

"The bottom line is neither we nor Mr. Avery have any intention of giving up or not proceeding to fight for his exoneration – because he is absolutely innocent," Zellner tells Rolling Stone. "It is not uncommon for judges at the trial court level to prematurely dismiss post-conviction petitions and get reversed by a higher court. We will press on regardless of which path we have to take and we will ultimately succeed."