The defense attorney representing Steven Avery, the subject of the blockbuster documentary Making a Murderer, has filed a motion that accuses investigators of framing the Wisconsin man and demands access to a long list of physical evidence so she can have it all analyzed using advanced scientific tests she says didn’t exist during Avery’s 2007 trial, in which he was convicted of murder and sentenced to life without parole.
The attorney, Kathleen Zellner, also reveals in the motion that “Mr. Avery has already completed a series of tests that will conclusively establish his innocence” and that she’ll reveal her theory on the identity of the real killer once she has the results of the new tests she intends to conduct.
Avery and his nephew Brendan Dassey were convicted of murdering photographer Teresa Halbach and burning her body after she came to take photos of a van at the Avery family’s auto salvage yard on Halloween 2005. When Making a Murderer was released late last year, the documentary drew national attention to the case and the controversial evidence used to convict Avery and Dassey. Earlier this month, a federal judge overturned Dassey’s conviction with a decision that criticized investigators.
“Mr. Avery is requesting, and is willing to pay for, the most comprehensive, thorough, and advanced forensic testing ever requested by a criminal defendant in the State of Wisconsin,” Zellner says in her “Motion for Post-Conviction Scientific Testing.” (Click here to read the motion.) Zellner filed the motion Friday afternoon at the Manitowoc, Wisconsin, courthouse, where reporters and Avery supporters had been camped out since Wednesday in anticipation of this filing.
The new motion's biggest bombshell is a Manitowoc County Sheriff's Department report that documents the seizure of the murder victim's car on November 3, 2005, two days before it was officially found. "That was a huge discovery because the car doesn’t appear on the Avery property until November 5," Zellner tells Newsweek. "It's a problem when some of [the investigators] are planting evidence and others are honestly doing their job and documenting their malfeasance.”
The motion describes Zellner's theory for how Avery was framed after Manitowoc County Sheriff's Deputy Andrew Colborn allegedly seized the car on November 3. "Ms. Halbach’s vehicle was moved from the Fred Radandt Sons, Inc. quarry to the Avery property using the conveyor road that led onto the Avery property from the quarry," the motion states. "Mr. Avery contends that the blood evidence was planted in Ms. Halbach’s car, by law enforcement, prior to the discovery of the vehicle on the Avery property on November 5, 2005."
The 45-page motion reveals other inconsistencies and falsehoods Zellner claims to have uncovered. The motion states that two “non-law enforcement people” who entered the Avery property when it was closed to the public after the murder both lied when interviewed by police. The first person is identified as “Individual A” and appears to be Joshua Radandt, who told police he saw a fire on the Avery property as he drove through his family’s quarry to his deer camp the afternoon of October 31.
Zellner says in her motion that Individual A accessed the Avery property four times for unknown reasons after it was closed to the public and that “it was impossible for Individual A to observe Mr. Avery’s backyard as he described because of the elevation of the quarry from where he was allegedly making his observations.” The motion also calls out an “Individual B,” apparently Halbach ex-boyfriend Ryan Hillegas, who the motion says lied to police that the blinker light on Halbach’s Toyota RAV4 had been broken for months.
Zellner’s motion requests many pieces of evidence—all of which are held by the Calumet County Sheriff’s Department—so they can be tested for DNA for the first time. Some of the requests hint at the person or people Zellner thinks framed Avery. For example, the motion requests testing of the blinker light found inside Halbach’s car. “The victim’s blinker light was displaced sometime during the sequence of events of either the crime or the transport of the victim’s car onto Mr. Avery’s property,” the motion states. “The blinker light was picked up and placed in the rear cargo area of the victim’s car by the perpetrator or the individual who moved the car onto the Avery property.”
“Since 2007, more sensitive forensic DNA techniques have been developed that can recover sufficient DNA for profiling from…fingerprints,” states the motion, which also requests fingerprints from Colborn and Lenk, the two Manitowoc County Sheriff’s Department deputies. “If the unidentified fingerprints on the victim’s vehicle match either Officer [Andrew] Colborn or Officer [James] Lenk, it would be significant evidence of their involvement in moving the victim’s vehicle onto the Avery property.” (Both Colborn and Lenk have denied they planted evidence.)
The motion asks to perform DNA tests on a lug wrench found in Halbach’s car, burned items found at the Radandt deer hunting camp and three locations inside Halbach’s car. “According to the State’s theory, Mr. Avery was not wearing gloves and bled from his cut finger inside the RAV-4,” the motion states, implying the state’s case would be undermined if Avery’s blood is not found in those locations.
In addition to testing multiple items for the first time, Zellner wants to retest several items using new DNA tests she says are more specific and sensitive, including the hood latch and the key to Halbach’s RAV4.
The DNA testing would be done by Dr. Karl Reich at Independent Forensics near Chicago, a lab Zellner used in 2005 to exonerate and free an Illinois father who had been wrongly imprisoned for killing his 3-year-old daughter.
Zellner also wants to use newly developed radiocarbon tests to determine whether the samples of Avery’s blood found in Halbach’s car came from a fresh wound or from a sample taken years earlier. (A key theory of Avery supporters is that the blood in Halbach’s car was planted using a sample taken when Avery was wrongly imprisoned for a 1985 rape. Avery supporters also say Colborn and Lenk were motivated to frame Avery because he was suing Manitowoc County for $36 million over his wrongful conviction.) The new test determines the age of blood by examining the level of radioactive carbon, which spiked during nuclear testing in the 1950s and '60s, and would be performed by Dr. Kirsty Spalding in Sweden and Dr. Peter Steier in Austria.
"Additionally, the test could detect petroleum-derive[d] products like EDTA," the motion states, referring to a blood preservative that would be present in a sample of Avery's blood stored by law enforcement. (Avery supporters think of EDTA as a smoking gun and believe its presence in the blood found in Halbach's car would prove it was planted.)
If the blood found in Halbach's car is too contaminated for an accurate radiocarbon test, Zellner asks that a UCLA geneticist be allowed to test the age of the Avery blood found in Halbach's car. "In Dr. [Steve] Horvath's opinion, an epigenetic evaluation can be used forensically in Mr. Avery’s case to determine, to a reasonable degree of scientific certainty, if the blood in the RAV-4 was in fact deposited from Mr. Avery’s 1996 EDTA-preserved blood vial," the motion states.
The motion also asks that Halbach’s key and Avery’s cheek swabs be examined by a microscope expert, Skip Palenik, who worked on the JonBenét Ramsey case, the Oklahoma City bombing and the Unabomber investigation. “If any material is present on the [cheek] swab, other than the DNA from Mr. Avery’s cheek, Mr. Avery can prove that the [cheek] swab was used by police officers to deposit Mr. Avery’s DNA on the hood latch,” the motion states.
The Wisconsin Department of Justice will respond to the motion seeking evidence. It’s unclear whether they’ll fight Zellner’s requests for access to the evidence. A Wisconsin DOJ spokesman did not respond to a Newsweek request for comment on Friday.
"No guilty person would ever allow such extensive testing to be done," Zellner said Friday as she prepared to file the motion. "The fact that Mr. Avery has agreed to all this testing is further proof he’s actually innocent of these crimes."