‘Making a Murderer’: Lawyer Claims Violent Porn, Back Scratches Implicate New Suspect

Does Kathleen Zellner sleep? On Friday, Steven Avery’s defense attorney submitted her latest filing in the Making a Murderer subject’s case, and, no surprise, it’s a lot of paper – 599 pages to be exact. Zellner’s motion asks that the Wisconsin Circuit Court in Manitowoc County allow her to supplement Avery’s current appeal with previously suppressed evidence – specifically, a CD-rom containing 2,449 pages of data downloaded from the Dassey family’s laptop computer.

Avery and his nephew, Brendan Dassey, were convicted in separate trials for the 2005 murder of Teresa Halbach; Dassey, who was 16 at the time, lived with his mother and brothers on the Avery property, where some of Halbach’s remains were found. Zellner says the CD contains a trove of evidence that Bobby Dassey – Brendan’s older brother, a key prosecution witness – gave false testimony and was a legally viable alternate suspect in Halbach’s murder. Zellner’s filing includes 30 exhibits, including the CD itself, as well as printouts of some of its most disturbing content: images of violent pornography depicting women being tortured and violated that Zellner says were largely accessed at times when only Bobby Dassey was home.

Rolling Stone initially reported on the CD back in October 2017, shortly after the Wisconsin Circuit Court denied Avery’s request for a new trial; Zellner argued that the decision was made before she was able to submit all the new evidence that the courts and/or the State had agreed to, including the CD that, she claimed, implicated Bobby Dassey as a third-party suspect in the murder.

A little over a month ago, the U.S. Court of Appeals agreed with Zellner that the Circuit Court acted in haste and must consider her request to supplement the record. This is the game-changing opportunity Avery has needed, and Zellner isn’t letting it go to waste. The 41-page motion, with its hundreds of pages of exhibits, addresses every possible impact that the laptop evidence – had it been turned over to the defense – could have had to change the outcome of the trial. By withholding evidence that was favorable to her client, Zellner argues, the prosecution denied Avery his due process rights (what’s known as a Brady violation) and he deserves a new trial. Now that Zellner has submitted her motion, the judge has 60 days to hold any necessary proceedings and render a decision.

“If [the] court finds that the laptop CD was withheld by the prosecution and contains material evidence, Avery should get a new trial for sure,” says appellate attorney Erica Suter, an expert in post-conviction issues who has followed the Avery case. “The impact of its omission in is a potential tipping point for Avery’s case, as well as Brendan Dassey’s. Zellner is bootstrapping as much as she can onto the failure to turn over CD. This is understandable because she’s arguing that it changes the context in which other Bobby Dassey-related evidence can be viewed. You’re normally arguing Brady in the context of the evidence the jury heard, but she also goes beyond the record to argue what could have been done differently had this info been known at the proper time. Some of her arguments and exhibits really go beyond what the court can consider, but she is painting a picture, or poisoning the well, as we sometimes say.”

One argument Zellner makes is that the laptop evidence impeaches Bobby Dassey’s testimony about the day of Halbach’s disappearance. Halbach, who worked for Auto Trader, had an appointment to photograph a vehicle that Avery’s sister was selling, and Bobby testified that he saw her walking in the direction of Avery’s trailer and that her vehicle was still parked on the property when he left shortly thereafter. According to prosecutors, Bobby, who was home alone, was the last person to see Halbach alive; but he also testified that he was asleep all morning and didn’t wake up until 2pm, shortly before Halbach’s arrival. Zellner claims that the laptop evidence shows that the Internet was accessed repeatedly over the course of the morning, and therefore it could have been used by Avery’s defense to impeach his credibility.

Suter believes Zellner makes an even stronger argument that the laptop CD contains material evidence that Bobby Dassey was a viable third-party suspect. Making a Murderer fans will recall that Avery’s trial attorneys weren’t allowed to argue to the jury that someone else could have killed Halbach, including Bobby Dassey, because the judge ruled that their evidence didn’t meet Wisconsin’s high standard for a third-party suspect defense. Zellner’s contention is that the laptop CD contains thousands of porn downloads and Internet searches that indicate Bobby Dassey had a propensity for sexual violence that would have established a motive for murdering Halbach.

“The fact that the trial attorneys attempted to name Bobby as a suspect but were denied because of absence of motive seems like a very helpful, relevant point on materiality,” Suter says. “The porn and searches would seem to be evidence of motive.”

Both of Avery’s trial attorneys, Dean Strang and Jerry Buting, have signed affidavits saying the laptop CD was never disclosed. But Zellner doesn’t stop there – her filing includes a bevy of affidavits from family members, other witnesses, and experts to support her claim that Bobby Dassey had the motive, means and opportunity to kill Halbach. A computer forensics expert details how a significant majority of the porn downloads and disturbing Internet searches were accessed when only Bobby Dassey was home; also found on the laptop were photos of Avery and Halbach, plus two folders labeled “DNA” and “Halbach,” all of which, the expert claims, were downloaded or created when only Bobby Dassey would have had access to the laptop. he also claims that Bobby was the only person who could have downloaded photos of Avery and Halbach, and created those folders.

There’s an affidavit from a medical expert, who reviewed photos taken of scratch marks on Dassey’s back, just a few days after Halbach’s disappearance, which he blamed on his Labrador puppy; the expert’s affidavit claims the scratches are more consistent with a human hand. One of the other Dassey brothers has signed an affidavit refuting Bobby’s testimony that Halbach was still on the Avery lot when he left to go hunting. Another witness has signed an affidavit claiming that he saw Halbach’s RAV-4 parked near property owned by Scott Tadych, who is married to Dassey’s mother and is named as Bobby Dassey’s accomplice.

Steven Avery has also signed two new affidavits himself. In one, he claims that Dassey routinely made comments about Halbach, which contradicts Dassey’s claim that he’d never seen her before October 31st, 2005. Avery has also signed an affidavit explaining why he believes that Bobby Dassey planted his blood inside Halbach’s RAV-4, a key piece of evidence in the prosecution’s case. Avery’s defense has always claimed that Avery’s blood had to have been planted in the car, but this is the first time they’re arguing Bobby Dassey was the one responsible. Avery states in this new affidavit that his nephew was aware that he had sustained a serious cut on his finger in the days before Halbach’s car was discovered in the Avery’s salvage yard. Bobby Dassey had access to his trailer and his bathroom, where, Avery says, the wound had bled onto the sink counter, and he didn’t clean it up right away. Avery says he now believes Bobby took some of the blood from the sink and planted it in Halbach’s car to frame him.

While some of these exhibits and arguments go well beyond the scope of what the Circuit Court can consider, Zellner is putting it all out into the open for a reason – to make it extremely difficult for the State of Wisconsin to ignore the plausibility of Bobby Dassey being a possible suspect in Teresa Halbach’s murder. And there’s evidence that the prosecution knows they have a problem – Bobby Dassey has since been re-interviewed by police investigators, as Zellner included their notes as one of the exhibits, suggesting that the State of Wisconsin is giving their key witness, and the last person to see Halbach alive, a second look.