Zellner's Latest New Motion

[CoolJ]

But again, doesn't an alleged Brady violation have to be convincing enough to conclude that the evidence's inclusion would have found Avery not guilty? I don't think this does.

No, it has to be “favorable” to the defense. It does not have to conclude
Avery would have been found not guilty.
Also, of particular interest in this case is that the suppressed CD would have impeached Bobby’s testimony which in itself would have been a Brady violation.
I will refer you to Zellners most recent reply to the states response in which she writes:

To establish a Brady violation, a defendant must demonstrate that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defense, and (3) the evidence was material to an issue at trial. State v. Harris, 2004 WI 64, ^ 13, 272 Wis. 2d 80, 680 N.W.2d 737 (citing Giglio v. United States, 405 U.S. 150 (1972)). The State improperly contends that a Brady violation consists only of suppressed, '‘exculpatory evidence”, but a Brady violation also includes suppressed impeachment evidence. State v. Harris, 2004 WI 64, 272 Wis. 2d 80, 680 N.W.2d 737

http://www.stevenaverycase.org/wp-c...y-Filed-Motion-for-Post-Conviction-Relief.pdf

 

[leslievernon]

must the state respond to that? i mean they could play ping pong like that forever.

i may ask an off-topic question:
is there any new information reg. blood from the scene tested with some kind of C-14 method? does anybody know about that?

 

[missy1974]

No, it has to be “favorable” to the defense. It does not have to conclude
Avery would have been found not guilty.
Also, of particular interest in this case is that the suppressed CD would have impeached Bobby’s testimony which in itself would have been a Brady violation.
I will refer you to Zellners most recent reply to the states response in which she writes:

To establish a Brady violation, a defendant must demonstrate that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defense, and (3) the evidence was material to an issue at trial. State v. Harris, 2004 WI 64, ^ 13, 272 Wis. 2d 80, 680 N.W.2d 737 (citing Giglio v. United States, 405 U.S. 150 (1972)). The State improperly contends that a Brady violation consists only of suppressed, '‘exculpatory evidence”, but a Brady violation also includes suppressed impeachment evidence. State v. Harris, 2004 WI 64, 272 Wis. 2d 80, 680 N.W.2d 737

http://www.stevenaverycase.org/wp-c...y-Filed-Motion-for-Post-Conviction-Relief.pdf

THIS!

One point that KZ made, was that if they could link Bobby to a fascination with rape, torture, murder, etc and the State's theory is that TH was raped, tortured and murdered, how can they than say it's irrelevant? I think they may have been able to use that as a motive for Bobby and then in turn, they would have met the Denny requirements to introduce a 3rd party suspect. I am still unsure if I would call this a Brady violation, or if I would call it ineffectiveness of counsel though ;-)

 

[missy1974]

must the state respond to that? i mean they could play ping pong like that forever.

i may ask an off-topic question:
is there any new information reg. blood from the scene tested with some kind of C-14 method? does anybody know about that?

I don't think the State can respond, but who knows! LOL IIRC, a decision needs to be made by sometime in September. The Court of Appeals set out a timeline, I expect the lower court, KZ and the State to stick to that timeline.

The swabs were tested last year, can't recall at the moment what exactly was done, but there were things that were not done because there was not enough of a sample. It would be in the June 2017 post conviction brief that KZ filed. It can be found at www.stevenaverycase.org under appeal documents, sorry, can't seem to open the page right now to direct link it.

 

[CoolJ]

THIS!

One point that KZ made, was that if they could link Bobby to a fascination with rape, torture, murder, etc and the State's theory is that TH was raped, tortured and murdered, how can they than say it's irrelevant? I think they may have been able to use that as a motive for Bobby and then in turn, they would have met the Denny requirements to introduce a 3rd party suspect. I am still unsure if I would call this a Brady violation, or if I would call it ineffectiveness of counsel though ;-)

As to whether or not it is a Brady or IAC have you read Hunts 4th affidavit? He makes a compelling argument that the CD contains unique info separate from what was on the DVDs.

 

[missy1974]

As to whether or not it is a Brady or IAC have you read Hunts 4th affidavit? He makes a compelling argument that the CD contains unique info separate from what was on the DVDs.

I have read it. And although I believe it should have been turned over, I am not sure that it was legally required to be turned over. All of the information that was in Velie's report (that was on the CD) came from those DVD's. IIRC without going back and looking, I think that Hunt was actually able to find even more than what Velie found back in 2006. But again, they had the DVD's back then, so is it a Brady, or IAC?

The fact that they turned over SA's and TH's Velie report but not the Dassey report, just makes it look so suspicious and looks like they were hiding something.

The good thing is, that the CoA's will look at this if the circuit court denies it.

 

[proudfootz]

One thing that bothers me is that based on the information on the computer it is apparent that BoD was accessing the computer where he stored materials relating to rape, torture, and murder on the very day TH disappeared instead of sleeping as he testified.

This not only indicates he would have opportunity (proximity to TH when she was last seen), but also motive (something the prosecution could never conjure up against SA) - making him a very viable suspect - but also that he tried to cover up for his activities on that day. That is suggestive to me of a guilty demeanor.

The prosecution should have impeached their own star witness as a liar, but they didn't.

I understand that the prosecution wants to 'win' their case, but this exposes a depraved indifference to the truth and a complete lack of interest in justice.

 

[leslievernon]

@proudfootz
the fassbender report (under point f, here) mentions photographs of both TH and SA with the date april 18, 2006, although there is no evidence indicating that the TH images were saved on dassey's computer on april 18, 2006.

how do i have to undestand this:
they (TH and SA) both on a photo, or just different pics of them...? ... omitting is really the right word here, i mean, were they like portrait shots, sneaky hidden cam shots of TH...?

 

[proudfootz]

@proudfootz
the fassbender report (under point f, here) mentions photographs of both TH and SA with the date april 18, 2006, although there is no evidence indicating that the TH images were saved on dassey's computer on april 18, 2006.

how do i have to undestand this:
they (TH and SA) both on a photo, or just different pics of them...? ... omitting is really the right word here, i mean, were they like portrait shots, sneaky hidden cam shots of TH...?

I have not seen the images, so I cannot say for certain, but

I am assuming for the time being that it is not photos of them together.

 

[leslievernon]

yeah but who would need that in the first place? let's say it's a random picture of her, from the Auto Trader website (don't know if they had pics of their staff).. i mean this isn't the only thing that is a bit off considering what else was found on the dassey pc.

 

[Jaiddie]

Aug 13 2018 KZ Letter to Judge Sutkiewicz.pdf

Here is the latest from KZ. A letter to Judge Flowers informing the Court that she is withdrawing her recent Subpoena, due to the fact that Barb willingly handed the Dassey computer over to her on 8/12/2018. It was then handed over to Gary Hunt the next day for analysis, so it will be interesting to see if information was deleted off that hard drive while the State had possesion of it this past time, as some have speculated.

 

[leslievernon]

is this even the same "dassey pc" as the one from 13 years ago...?
did i not get something... what is KZ hoping to get out of that?

 

[Jaiddie]

Yes, its the same one. KZ wants it because LE apparently re-opened their TH investigation in 2017 to interview witnesses, and re-took possession of the (original from 13 years ago) Dassey computer. The State then did ANOTHER full analysis on it (in 2017) that for some reason, took them 5 months to complete (the first analysis took 17 days to complete) before they gave the computer back to Barb. KZ has requested in some of her recent motions for the State to give her those most recent analysis reports, but they are, of course, fighting it. KZ then got an affidavit from Barb not too long ago stating that when LE brought the computer back to her, Dedering told her she shouldn't let KZ have it and she should get rid of it. Because of that statement made to Barb, KZ filed a Subpoena with the Court requesting that Barb hand the computer over to her, which Barb ended up doing willingly. I have seen it speculated that KZ filed the Subpoena to get it on record that LE told Barb to get rid of evidence (the computer). In doing this, if it comes back that information was deleted or that the computer was somehow compromised in the months that LE had possession of it, then that would be a clear cut case of evidence tampering on the States side that they could not wiggle away from. That is just my understanding of the possible reasons she wanted it. JMO

 

[missy1974]

To add to what Jaiddie said... When Dedering interviewed Bobby back in Nov 2017, there was something mentioned about folders labelled DNA, Halbach, Avery or something like that. That was not on the hard drive copy that they already had, which would have been up to april or may 2006. Technically, anything that was created between the time the original hard drive was copied and the start of SA's trial would be considered pre-conviction evidence as well. Anything after could be considered "new information" if there was something exculpatory contained on the computer (example: a confession, a photo, etc. <<< not saying that's what is on it, just an example).

This is how I'm understanding this issue ;-) I'm not a lawyer though so JMO

I do think that KZ just wanted it on record that Barb was told that she shouldn't give it to KZ, and wanted the State to respond saying it should be denied before Barb handed it over. I couldn't understand why Barb would give KZ an affidavit, but not the computer. I thought maybe she did dispose of it when she got it back from LE, but now I think it was planned! That or Barb got some flack for not just giving it to KZ.