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Steven Avery’s Lawyer Accuses Wisconsin AG’s Office of Destroying Evidence

Kathleen Zellner says bone fragments that could have exonerated her client were given to Teresa Halbach’s family in 2011 — and claims that the prosecution has been lying about it ever since

(L-R) Steven Avery's mugshot, Attorney Kathleen Zellner

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Attorney Kathleen Zellner has filed a new letter with the Wisconsin Court of Appeals on behalf of her client, Steven Avery, accusing the Attorney General’s Office of “trying to deceive” her and the Court about the status of key forensic evidence in the Making a Murderer case. Zellner’s letter, submitted on February 13th, is actually her second letter to the court in as many days; both letters supplement a January 24th motion that accused prosecutors of violating state law and Avery’s constitutional rights by destroying evidence. Zellner tells Rolling Stone that she has since learned that a key piece of evidence — suspected human pelvic bone fragments, which could exonerate her client — may have been destroyed as well. And, she says, prosecutors are “obstructing” her efforts to find out.

According to a newly discovered police report and updated evidence control ledgers, on September 20th, 2011, “human bone” fragments recovered during the investigation were removed from the Calumet County Sheriff’s Department’s evidence control unit. They were transferred to a local funeral home, which then “returned” the bones to the family of murder victim Teresa Halbach.

According to an affidavit from Avery’s former appellate attorney Suzanne Hagopian, the State never informed defense counsel of its intention to effectively “destroy” key case evidence by giving it to the victim’s family. Wisconsin law requires law enforcement to preserve “any biological material” and “physical evidence” until the convicted defendant has been discharged from prison. Avery is serving a life sentence without the possibility of parole, and the Wisconsin statute protects his right to retain evidence that “may reasonably be used to incriminate or exculpate any person” in Halbach’s murder.

Calumet County Sheriff’s Department Deputy Jeremy Hawkins states in the 2011 police report that Sgt. Investigator Mark Wiegart, and attorneys Thomas Fallon and Norm Gahn, were involved in removing the bones from evidence control. Wiegert was a lead investigator in the case, while Fallon and Gahn were on the trial prosecution team. Fallon is now an Assistant Attorney General, and he and Gahn continue to represent the case on behalf of the state of Wisconsin as Avery appeals his conviction. Rolling Stone sent Fallon and Gahn a detailed request for comment on the claims outlined in Zellner’s court filings; a spokesperson for the Attorney General’s Office replied to say that they “cannot comment on ongoing litigation.”

The September 20th, 2011 police report, which Zellner says she received in December from an anonymous third-party, has exposed a lot more than just a violation of state law. A thorough assessment of updated evidence control ledgers and crime lab unit reports (attached as exhibits to her four most recent court filings and reviewed by Rolling Stone) indicates that the “human bones” recovered during the investigation were more plentiful than had ever been conveyed to the defense. And many of the bones that were returned to the Halbach family in 2011 were collected from locations that prosecutors claimed had nothing to do with her murder.

According to police and prosecutors, Avery fatally shot Halbach in his garage, dismembered and then burned her body in a pit next to his trailer. Investigators recovered charred human remains, namely bone, from Avery’s burn pit and a burn barrel. However, there was also evidence of a second burn location just over half a mile from Avery’s trailer. The Manitowoc County quarry is about a quarter mile from what used to be a back entrance to the salvage yard; that’s where investigators recovered another burn pile containing possible human pelvic bone fragments.

Avery’s trial attorneys theorized that the quarry bones were evidence that Halbach’s body was burned somewhere other than the Avery property. Prosecutor Ken Kratz, on the other hand, downplayed the possibility that they were human, telling the jury, “These bones in the quarry, I’m going to take 20 seconds to talk about, because the best anybody can say is that they are possible human.”

Zellner has wanted to get her hands on the suspected human pelvic bones since November 2016, when the Wisconsin Circuit Court ordered new scientific testing on certain items of evidence. In September 2017, Assistant Attorney General Fallon agreed to allow a “microscopic examination” of the pelvic bone fragments to determine whether they’re human. For Zellner, this examination is just the first step towards proving a longtime defense theory that Halbach was killed, dismembered and burned at another location.

“[Avery’s trial attorney] Jerry Buting even said, if her body parts are over in the quarry, then Steven Avery’s innocent because the prosecution said she never left the property,” Zellner says. “Plus, he’s not going to bring the bones from the quarry and plant them in his burn pit!”

However, soon after the parties agreed to examine the bones, the circuit court issued a seemingly hasty decision denying Avery’s petition for post-conviction relief, despite the fact that several court-ordered tests were still pending. Examining the bones has been put on hold, pending a ruling by the Court of Appeals.

Late last year, Zellner learned about a new type of advanced DNA testing that had been used to identify victims of the California wildfires, whose remains were significantly destroyed. She began combing through the crime lab reports and evidence control ledgers in order to compile a master index of all the bones that had been collected during the Halbach murder investigation, and realized that three burn piles had been found around the Manitowoc County quarry, and all of them contained bones described as “human” or “suspected human.”

On December 14th, 2018, Zellner filed a motion for new DNA testing on all the “human” and “suspected human” quarry bones, including the pelvic bone fragments. (The Court of Appeals denied her request to remand the case, but indicated the testing was something she could request in the future, after they had ruled on issues already under appeal.) Zellner’s December motion, and its disclosure about the three piles of quarry bones, caught the eye of a third party, who provided Zellner with a copy of the previously undisclosed 2011 police report. Zellner’s evidence control ledgers were from 2007, so she filed a Freedom of Information Act request for the most recent versions, which confirmed that all of the property numbers listed on the police report had indeed been checked out on that date. It also indicated that many of the “human” and “suspected human” bones recovered from the quarry piles had never been returned, confirming that they were among the bones that had been released to the Halbach family.

“It isn’t just the pelvic bone, there’s about 10 bones that were recovered from the quarry,” Zellner tells Rolling Stone. “By giving them [to the Halbach family] … they have just confirmed they believe those bones are human. It’s a very sneaky way to get evidence destroyed. It seems very deliberate that the thinking was, ‘We need to get rid of those bones, but we can’t just go in and cremate them ourselves.’”

At first, Zellner believed that the pelvic bones fragments must still be in evidence, since Fallon and Gahn had agreed to the microscopic examination.

“Then I started thinking, why didn’t the state tell [the court] in December, when I asked to test those bones, ‘There are no bones to test’?” Zellner says. “I start worrying that the pelvic bones have been given back too, even though that’s what we kept talking about testing and they were telling me they had it. But I can’t trust them about anything because they haven’t disclosed to the court or anyone that they gave all the bones to the Halbachs.”

Upon closer review of the evidence control ledgers, Zellner found a notation indicating that the pelvic bone fragments had been deemed “only human,” and they too had been removed from evidence control in 2011 and were never returned.

Zellner has submitted to the court, and Rolling Stone has reviewed, more than a dozen exhibits which corroborate these claims. After filing her first letter to the Court of Appeals on February 11th, Zellner sent multiple emails to Fallon, requesting an update on the status of the pelvic bones, asking outright if they’d been released to the Halbach family as well. On the morning of February 13th, Zellner received a voicemail from attorney Mark Williams, who is co-counsel on the Avery case alongside Fallon and Gahn. The voicemail and transcript were filed along with her February 13th letter, and provided to Rolling Stone and can be heard here. Williams appears to be under the mistaken impression that he’s leaving a message Fallon:

“Hi, Tom. This is Mark Williams. Um, I’ll send you an email later today, but I don’t think we should do anything or respond to her at all until tomorrow, uh, when we look into the bag and-and see exactly the pelvic bones are in there or not. Um, so I-I would not respond, uh, until we look into the bag, uh, tomorrow morning and then we can talk about it, uh, before we send a response. Thanks a lot. Bye.”

This message has done little to dissuade Zellner’s fears that the pelvic bone fragments have been destroyed as well. At the very least, Zellner tells Rolling Stone, the message strongly suggests that prosecutors aren’t certain that the bones are still in evidence.

“This is another first for me,” Zellner tells Rolling Stone. “Many times I have felt that certain prosecutors were obstructing my efforts, but this is the first time a prosecutor has actually called my phone and left a message confirming that fact. It’s really very thoughtful of them.”

Zellner also believes that by destroying the bones, the State not only violated their own statute, they’ve also denied Avery his constitutional right to due process according to Arizona v. Youngblood. The 1988 Supreme Court decision requires proof that the State acted in “bad faith” by destroying or losing evidence — it’s a very difficult standard to meet, but Zellner believes this case would qualify. Her January 24th motion asks for the case be remanded back to the Circuit Court so it can address these claims, both of which would all but require the court to overturn Avery’s conviction.

“They’ve been lying all this time about it — and they’ve been lying to the court,” Zellner continues. “This whole concealment of what happened to the bones is really a way bigger issue than testing them even, because if they’ve been destroyed it’s a violation of their state statute. I don’t know if it’s a felony, but it’s it’s up there. And that’s what the court is grappling with.”

Correction: This article previously stated that Zellner filed a motion on January 11th, and received a voicemail from opposing counsel on January 13th. It has been updated to correctly state that those events occurred on February 11th and 13th, respectively.

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