Steven Avery from ‘Making a Murderer’ loses latest appeal attempt as state court rules against him

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Convicted murderer Steven Avery remains the focus of worldwide attention thanks to the Netflix docu-series “Making a Murderer.”

A state appeals court has ruled against Steven Avery in his latest effort to fight his conviction for the murder of Teresa Halbach.

Avery, 59, is serving a life sentence for killing Halbach, a 25-year-old photographer who disappeared in 2005. His story was featured in the Netflix docuseries “Making a Murderer,” which cast doubt on the motives of police investigating Halbach’s death and left many viewers with the impression that Avery and his nephew, Brendan Dassey, were wrongfully convicted.

The opinion of the appeals court, released Wednesday morning, found a litany of claims made by Avery over the past several years were “insufficient on their face to entitle him to a hearing and that the circuit court did not erroneously exercise its discretion in denying the motions to vacate and for reconsideration.”

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Kathleen Zellner, Avery’s attorney, said she wasn’t deterred by the decision.

“It pointed out the specific doors that are still open for Mr. Avery’s quest for freedom,” Zellner said in a post shared on Twitter. “We appreciate the careful review.”

In its ruling, the appeals court first rejects claims Avery made in June 2017, when he argued his trial counsel was ineffective and that prosecutors withheld favorable evidence, along with several claims based on the results of investigations of “a bullet, the hood latch swab of the RAV4, and the RAV4 key.”

“Even considered on the merits, the claims asserted in his June 2017 motion are speculative, conclusory and in some cases misleading,” the opinion says.

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Not deterred by the appellate court decision—-it pointed out the specific doors that are still open for Mr. Avery’s quest for freedom. We appreciate the careful review.#Onward #TruthWins

— Kathleen Zellner (@ZellnerLaw) July 28, 2021

In 2019, a circuit court judge refused to grant Avery a new trial based on an argument that his conviction was flawed because prosecutors turned over suspected human bones to Halbach’s family without allowing them to be tested.

A legal back-and-forth ensued, but the appeals court indicated late last year that the case had been submitted on briefs and was awaiting a decision. Zellner had asked the appeals court to either allow more scientific testing and an evidentiary hearing, or reverse Avery’s conviction and order a new trial.

The appeals court, though, found the evidence wasn’t necessarily exculpatory: “It does not indicate that another person killed Halbach,” the opinion says. 

“The apparent thrust of Avery’s claim is that, if Halbach’s bones were found in the gravel pit, then she was killed by someone else,” the opinion says. “But as Avery never explains why he himself would have been unable to dispose of Halbach’s remains in the gravel pit, this line of reasoning is wholly speculative.”

The fact that prosecutors released the bone fragments does not necessarily mean they belonged to Halbach or that prosecutors acted in bad faith to destroy the evidence, the opinion says.

“The Halbach family requested these bone fragments for purposes of its own — likely for closure — but that does not vest these fragments with evidentiary significance,” the opinion says.

In April, Zellner filed additional court documents that claim a new witness, delivery driver Thomas Sowinski, saw “a shirtless Bobby Dassey” — Brendan Dassey’s brother and Avery’s nephew — and “an unidentified older male” pushing a Toyota RAV4 down Avery Road “toward the junkyard” in the early morning hours of Nov. 5, 2005.

Halbach’s vehicle, a Toyota RAV4, was found later that day at the Avery Salvage Yard. When he heard, Sowinski said he realized the significance of what he had seen and contacted the Manitowoc County Sheriff’s Office, but said a female officer told him: “We already know who did it,” the court documents say.

The appeals court had already evaluated the “legal and factual basis” for Avery’s other claims when this new issue was raised, and it “bears little or no relation to those claims already before us,” the opinion says. 

“This is, instead, a distinct issue that the circuit court should resolve on a standalone basis through a new (postconviction) motion,” the opinion says.

The appeals court determined that if Avery still wants to raise claims related to the new witness, he must file a new motion with the circuit court.

The conclusion of the opinion indicates that, despite “a variety of theories about who killed Halbach” raised by Avery, his existing postconviction motion “is not a vehicle to retry a case to a jury,” the opinion says.

“We express no opinion about who committed this crime: the jury has decided this question, and our review is confined to whether the claims before us entitle Avery to an evidentiary hearing,” the opinion says.

Contact Chris Mueller at 920-996-7267 or cmueller@gannett.com. Follow him on Twitter at @AtChrisMueller.

This article originally appeared on Appleton Post-Crescent: Steven Avery from ‘Making a Murderer’ loses latest appeal attempt as state court rules against him