Leave it to attorney Kathleen Zellner to casually slip a few new bombshell allegations about the Steven Avery case in her latest court filing. This time, the take-no-prisoners defense lawyer claims to have damning new evidence implicating another member of the extended Avery clan – and a key prosecution witness – in the 2005 murder of Teresa Halbach: Avery's nephew and co-defendant Brendan Dassey's older brother, Bobby Dassey.
Zellner – who has represented Avery since January 2016 — is currently fighting to overturn Wisconsin Circuit Court Judge Angela Sutkiewicz's decision earlier this month to deny Avery's request for a new trial. Sutkiewicz's six-page ruling came suddenly, and barely scratched the surface of the laundry list of issues Zellner raised in her 1200-plus-page brief, filed earlier this summer. The defense attorney's new 54-page filing seeks to correct what she calls the court's numerous "manifest errors" and misinterpretations, and submits new evidence and witness affidavits that had not yet been filed with the court when Sutkiewicz ruled.
Zellner alleges that new forensic testing performed on the Dassey family computer recovered "images of Ms. Halbach, many images of violent pornography involving young females being raped and tortured, and images of injuries to females, including a decapitated head, bloodied torso, a bloody head injury and a mutilated body." The Dassey home – where Brendan Dassey, then 16, lived with his mother (and Avery's sister), stepfather and older brother Bobby – is on the same property as Avery's trailer and the family's auto salvage lot. According to the defense's expert analysis, the disturbing photographs were accessed at times when only Bobby Dassey was home.
"The [women in the] violent pornographic images on the Dassey computer are strikingly similar in appearance to [Teresa Halbach]," Zellner writes in an email to Rolling Stone. "The viewer – whom we believe is Bobby – has a morbid fascination with the death of young women plus torture, rape, pedophilia etc." (Bobby Dassy did not respond to a request for comment from Rolling Stone via Facebook.)
This new evidence is especially significant given that Bobby Dassey's testimony was essential to the State's claim that Halbach, a photographer for Auto Trader magazine, was last seen alive at the Avery Salvage Yard. Bobby Dassey testified that he last saw Halbach heading in the direction of Avery's trailer, and did not see her or her car leave the property before he left to go hunting that afternoon.
However, according to Zellner's motion, Bobby and Brendan's older brother Bryan Dassey told Department of Justice officials in November 2005 that Bobby had told him that he did see Halbach leave the property that day. Bryan Dassey recently doubled down on his recollection, signing an affidavit stating, "I distinctly remember Bobby telling me, 'Steven could not have killed her because I saw her leave the property on October 31, 2005.'"
Zellner's argument is that all of Avery's previous attorneys provided ineffective assistance in their failure to pursue evidence that would have impeached Bobby Dassey's claims and "effectively undermined a core aspect of the State's case – that Halbach never left the Avery property." Her claim is further bolstered by a a signed affidavit from a former investigator for the defense confirming that post-conviction counsel "totally missed" the significance of Bryan Dassey's statement to police. She also argues that the prosecution violated Avery's right to due process by allowing Bobby Dassey to give testimony they knew to be false.
"Bobby also lied when he told the police he had never seen [Halbach] before October 31," Zellner tells Rolling Stone. "He commented about her every time she came to the [Avery Salvage Yard] for appointments."
Zellner's motion also refers to a defense experiment conducted by an "expert videographer" that establishes a new timeline which allegedly reveals Bobby Dassey (and his stepfather, Scott Tadych, his alibi) were in the same location as Halbach when her cellphone recorded its last known activity. Altogether, the motion argues, there is more than enough to meet Wisconsin's evidentiary threshold – established in State vs. Denny – to argue that Bobby Dassey is a viable alternative suspect.
"Denny holds that a defendant can't introduce evidence of a third-party suspect without meeting a certain threshold," explains appellate attorney Erica J. Suter, who is licensed to practice law in Maryland, but is familiar with the Avery case and Wisconsin state law. "The defendant must make an offer of proof as to the third party's motive, opportunity, and some evidence that directly connects the third party to the crime. The point is to offer some safeguard that a defendant can't simply accuse other people in order to defend himself."
If Zellner's allegations about Bobby Dassey have merit, Suter tells Rolling Stone, it "could satisfy the Denny standard."
Also attached to the motion is an affidavit offering further evidence that the Avery property was not Halbach's last stop before her death. A previously undisclosed witness who claims to have seen a green-blue RAV4 just like Halbach's parked on a dirt road just days before it was "officially" discovered in the Avery salvage yard. The witness claims they reported the information to Manitowoc County Sheriff's Department Sergeant Andy Colborn, who did not document the information. If true, Colburn's failure could be considered a Brady violation, a major factor in many overturned convictions.
While Bobby Dassey seems to be at the top of the list of alternative suspects, Zellner still has her eyes on Halbach's ex-boyfriend, Ryan Hillegas. Zellner claims to have evidence that Halbach took notes in her day planner while on the phone with a coworker shortly before her disappearance – and that Hillegas was later found to have the planner in his possession. Zellner believes this, at the very least, proves Hillegas had access to Halbach's car after she went missing. (A request for comment from Hillegas via Facebook was not returned.)
"Ryan Hillegas may be involved in moving Halbach's car after our witness reported the vehicle's location to Sgt. Colborn," Zellner explains to Rolling Stone. "There is no dispute he has no alibi for 10/31, was estranged from Teresa and lied in his trial testimony about being at her house continuously on 11/3. … We cannot eliminate him as a suspect, which we would gladly do, but he has refused multiple times to do an interview with our investigators."
Zellner also submitted an affidavit from a forensic expert disputing that the prosecution's claim that a bullet fragment found in Avery's garage came from the kill shot to Halbach's head. The bullet contains "no particles consistent with bone," while wood fragments suggest "that the bullet struck a wooden object and not a human skull."
Despite the setback presented by the Circuit Court's refusal to grant Avery's request for a new trial, Zellner sees a silver lining to the decision.
"By not granting us an evidentiary hearing all of our factual allegations must be taken as true which puts us in a powerful position to win a reversal on appeal," Zellner tells Rolling Stone. "The trial judge may have inadvertently done us a big favor. This is a case that will have to be won in a higher court, I believe. The undisputed facts [will] show that Steven Avery was convicted on planted evidence and perjured testimony. And nothing we have uncovered in our investigation changes our view that both Steven Avery and Brendan Dassey are 100% innocent."