Court to consider Avery's motion on evidence recently discovered

Steven Avery (WLUK file image)

(WLUK) -- The Wisconsin court of appeals is ordering a circuit court judge to hear details of Steven Avery’s claims that evidence was withheld from his defense lawyers before his trial for the murder of Teresa Halbach.

Avery continues to appeal his conviction for the 2005 murder, and is serving a life sentence. His nephew, Brendan Dassey, was also convicted.

Last month, Avery’s attorney, Kathleen Zellner, filed a motion with the court of appeals, asking to amend its appeal to that court because of a CD she says was first disclosed to the defense on April 17 of this year.

In a ruling issued Thursday, the appeals court denied her motion. But, the appeals court ordered “that this appeal is remanded forthwith to the circuit court to permit Steven A. Avery to pursue a supplemental postconviction motion in connection with Avery's receipt of previously withheld discovery or other new information,” court records show.

Zellner was given 30 days to file such a motion, and told Sheboygan County Judge Angela Sutkiewicz to “conduct any necessary proceedings and enter an order containing its findings and conclusions within sixty days after the supplemental postconviction motion is filed.”

In a tweet, Zellner said “We knew the Appellate Court would not let this undisclosed evidence be dismissed w/o a full examination of it. Back to circuit court.”

FOX 11 requested a comment from the state Department of Justice.

However, the decision issued today notes that the state objected to the amended appeal “because the CD was not part of the record before the circuit court when it denied Avery’s postconviction motion and his motions for reconsideration.”

In her May 15 motion, Zellner maintained that a CD with reports describing the state’s seizure of a computer from the Dassey residence was never turned over to Avery’s trial attorneys.

“Obviously, the information on the CD demands the very reasonable inference that Bobby Dassey viewed violent pornography and engaged in searches relevant to the murder of Teresa Halbach,” she wrote.

The motion goes on to explain such information would have been helpful to build a defense argument to point to Bobby Dassey as a possible suspect in the murder – something it was not allowed to do.

Brendan Dassey has appealed his conviction to the U.S. Supreme Court, which will discuss the case next week. If four justices agree to hear the case, oral arguments will be scheduled. If not, Dassey’s conviction would stand.

Dassey and Avery's cases gained attention in 2015 after Netflix released "Making a Murderer," which examined Halbach's death and spawned conjecture about Avery and Dassey's innocence. Authorities who worked on the cases said the series was biased.

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