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Steven Avery Denied Motion for New DNA Testing

The ‘Making a Murderer’ subject’s attorney, Kathleen Zellner, petitioned to have bone remains tested — but she’s not discouraged by this decision.

Steven Avery Steven Avery is escorted out of a Calumet County courtroom during the opening day in his murder trial, in Chilton, WisMissing Woman, Chilton, USA

Steven Avery is escorted out of a Calumet County courtroom during his murder trial in Chilton, WI.

Morry Gash/AP/REX/Shutterstock

The Wisconsin Court of Appeals has denied Steven Avery’s December 17th motion requesting to use new “rapid DNA identification” testing on “suspected human skeletal remains” that were recovered but never identified during the original investigation into Teresa Halbach’s 2005 murder. Avery’s attorney, Kathleen Zellner, isn’t discouraged, however; she tells Rolling Stone that the court simply wants to resolve the many other issues in the Making a Murderer case that have already been raised on appeal, and that the decision doesn’t preclude such testing in the future.

“The Appellate Court did not deny the bone testing, they denied our request to remand [the case] to the Circuit Court … to allow the bones to be tested,” Zellner clarifies to Rolling Stone. “The Appellate Court did not want to add a new issue of bone testing.”

In a separate interview with Newsweek, Zellner reiterated, “The bottom line is that the appellate court is not preventing Avery from doing the bone testing after the appeal is completed or by agreement with the new attorney general while the appeal is pending.” (Wisconsin elected a new attorney general in November.)  

During Avery’s 2007 trial, prosecutors claimed that bone fragments and tissue recovered next to Avery’s trailer proved that Halbach’s body was burned there in the hours after he and nephew Brendan Dassey committed the murder. But Avery’s defense has long believed that this evidence was planted; after all, during the police investigation, even more bones were recovered from a gravel pit on Manitowoc County land near the Avery property, including a “possible human pelvic bone,” according to the state’s own forensic expert, Dr. Leslie Eisenberg. However, the FBI’s DNA testing capabilities were unable to analyze any of the bones in the case because they were too degraded, and prosecutors were adamant that the bones were not human or connected to Halbach’s murder.

In her December motion, Zellner wrote that one of the “world’s leading DNA experts,” Dr. Richard Selden, was prepared to “test the bones from the Manitowoc County Gravel Pit” using new advanced DNA testing methods. While that won’t be happening anytime soon, Zellner tells Rolling Stone, We will be filing another motion with the appellate court on new evidence we have discovered as a result of our request to test the bones.”

If Zellner is successful in freeing Avery through any of the other issues that have already been raised in her exhaustive appeal efforts, Selden’s new-fangled DNA technology would be unnecessary — but it could prove useful for a reinvestigation into Halbach’s murder.

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