PASSAGE OF THE DAY: Zellner argues that the state’s
destruction of the bones and failure to inform defense counsel that they
were destroyed violated Wisconsin statute regarding the preservation of
evidence, and Supreme Court precedent Arizona v. Youngblood. Zellner emphasized that the evidence destroyed was potentially
exculpatory, writing, “The State by its actions has implicitly admitted
that the bones are not only human, but that they belong to Ms. Halbach.
The State cannot credibly argue that it returned animal bones to the
Halbach family for burial or cremation.” In an
additional letter
supplementing the motion, filed Feb. 13, 2019, Zellner writes that
prosecutor Mark Williams “inadvertently” left her a voicemail apparently
intended for Thomas Fallon, following her requests that Fallon confirm
the state still had a human pelvic bone in evidence. A transcript
included in the letter includes the statement, “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.” Zellner provided
Rolling Stone with that audio, which they published
here. Now that the latest motion has been approved, Zellner may have the
chance to make the argument to the Circuit Court that the state broke
the law and violated Avery’s due process rights."
-------------------------------------------------------------------
STORY: "Avery lawyer wins latest motion over bones sent to funeral home," by Forensic Magazine Associate Editor Laura French, published on February 27, 2018.
GIST: "In December, the Wisconsin State Court of Appeals
denied a motion
by counsel for convicted murderer Steven Avery requesting Rapid DNA
testing of bone fragments found in a gravel pit near Avery’s property,
meant to determine whether the bones were human and belonged to murder
victim Teresa Halbach. In her most recent motion, attorney Kathleen
Zellner said that testing may never have been possible to begin
with—because the bone fragments were brought to a funeral home and
turned over to Halbach’s family in 2011. The appeals court has now approved Zellner’s motion to bring new
evidence to the lower Circuit Court that she says proves the state
unlawfully destroyed evidence without notifying defense counsel, opening
up another chance for Avery, whose murder case and past wrongful
conviction for rape and attempted murder were the subject of the Netflix
docu-series “Making a Murderer,” to receive a new trial. Avery has been serving a life sentence since 2007, and previously
served 18 years of a 20-year sentence for a 1985 sexual assault before
being exonerated. Avery’s cousin, Brendan Dassey, is also serving a life
sentence for Halbach’s murder, and remains in prison after the U.S.
Supreme Court
declined to take his case last year. The bone fragments Zellner intended to have tested were found in a
quarry gravel pit near Avery’s property and were previously determined
to be “possibly human” by forensic anthropologist Leslie Eisenberg. Bone
fragments belonging to Halbach were also found in a burn pit behind
Avery’s garage. Zellner argues the burn pit bones could have been
planted, and that the presence of Halbach’s bones in the gravel pit
would dispute the state’s argument that the murder and burning of the
body all took place at Avery’s residence. In the Jan. 24, 2019 motion,
published on Zellner’s website, counsel writes that they discovered a police report that was previously unknown to them, shortly after filing the
motion for Rapid DNA testing
on Dec. 17, 2018. The Sept. 20, 2011 police report shows that a number
of bone fragments and teeth, some identified as human and some as
“suspected human bone” or “resembling bone,” were removed from evidence,
and “all bone fragments that were determined to be able to be returned
to the Halbachs” by Assistant Attorneys General Thomas Fallon and Norman
Gahn were delivered to Wieting Funeral Home. The state never gave this police report to any of Avery’s defense
counsel, including his previous postconviction public defender Suzanne
Hagopian, according to the motion. Zellner argues that the state’s
destruction of the bones and failure to inform defense counsel that they
were destroyed violated Wisconsin statute regarding the preservation of
evidence, and Supreme Court precedent Arizona v. Youngblood. Zellner emphasized that the evidence destroyed was potentially
exculpatory, writing, “The State by its actions has implicitly admitted
that the bones are not only human, but that they belong to Ms. Halbach.
The State cannot credibly argue that it returned animal bones to the
Halbach family for burial or cremation.” In an
additional letter
supplementing the motion, filed Feb. 13, 2019, Zellner writes that
prosecutor Mark Williams “inadvertently” left her a voicemail apparently
intended for Thomas Fallon, following her requests that Fallon confirm
the state still had a human pelvic bone in evidence. A transcript
included in the letter includes the statement, “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.” Zellner provided
Rolling Stone with that audio, which they published
here. Now that the latest motion has been approved, Zellner may have the
chance to make the argument to the Circuit Court that the state broke
the law and violated Avery’s due process rights. Should her argument in
the lower court succeed, Avery could receive a new trial—should it fail,
the case will go back to the appeals court again,
according to Newsweek."
The entire story can be read at:
https://www.forensicmag.com/news/2019/02/avery-lawyer-wins-latest-motion-over-bones-sent-funeral-home
PUBLISHER'S
NOTE: I am monitoring this case/issue. Keep your eye on the Charles
Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's
forensic pediatric pathology system. The Star has a "topic" section
which focuses on recent stories related to Dr. Charles Smith. It can
be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher; The Charles Smith Blog.
