Post Conviction Brief

[CoolJ]

And there has been a ruling. The motion has been denied BUT it's being sent back to the circuit court! The bolded parts were done by me. The wording strikes me as interesting "receipt of previously withheld discovery". KZ will now be able to file everything that she has (which is still less than it should be had she filed the agreement she had with the State last year to do further testing, unless she can now pursue that again?) It also looks like they have not only given KZ deadlines, but the Circuit court as well.

Filed By: Kathleen Zellner
Submit Date: 5-29-2018
Decision: (O) Other
Decision Date: 6-7-2018
ORD that the motion to supplement the record is denied.
FRO 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.
FRO that any supplemental postconviction motion shall be filed in the circuit court within thirty days.
FRO that the circuit court shall conduct any necessary proceedings and enter an order containing its findings and conclusions within sixty days after the supplemental postconviction motion is filed.
FRO that if Avery intends to order a transcript of any post-remand hearing, he shall do so within ten days after the circuit court enters its order deciding the supplemental postconviction motion. Any such transcript shall be filed an served within twenty days after its request. Avery shall provide the court reporter with a copy of this order.
FRO that Avery shall file a statement on transcript within fifteen days after the circuit court enters its post-remand order deciding the supplemental postconviction motion. The statement on transcript shall reflect either that a post-remand transcript has been ordered or that such a transcript is not necessary for this appeal.
FRO that the circuit court clerk shall re-transmit the record to this court within twenty days after the later of the entry of the circuit court order resolving the supplemental postconviction motion or the filing of any post-remand hearing transcript, if ordered. The record shall include any papers filed pursuant to this remand.
FRO that the appellant shall file an appellant's opening brief presenting all grounds for relief within forty days after the filing of the record.

“Receipt of previously withheld discovery” = Brady violation

Game over Kratz.

 

[CoolJ]

LOL Okay. It's still going back to the circuit court, where she will file the CD in a new motion and it will become part of the record anyway, not really a lose IMO Looks like she will be able to file any other "new" information too.

Yes. This is a win for Zellner. She knew it was going back to circuit. It is exactly how she planned it. She will now be allowed to present new items of evidentiary value. She will be granted at the very least an evidentiary hearing this year. Mark my words.

 

[proudfootz]

“Receipt of previously withheld discovery” = Brady violation

Game over Kratz.

IANAL but that's what it sounds like.

 

[ACJL]

LOL Okay. It's still going back to the circuit court, where she will file the CD in a new motion and it will become part of the record anyway, not really a lose IMO Looks like she will be able to file any other "new" information too.

Yes she got this covered. Every win and every loss were all factored in. It's exactly according to Zellner's script.

Maybe she didn't tell anyone exactly what files the Defense missed out on just so she could lose here and go back to circuit court.

 

[missy1974]

Yes she got this covered. Every win and every loss were all factored in. It's exactly according to Zellner's script.

Maybe she didn't tell anyone exactly what files the Defense missed out on just so she could lose here and go back to circuit court.

I am pretty sure that I have made it clear that I have been a critic of KZ, and I'm pretty sure in my post I didn't say I thought this was part of her plan. What I did say is that this really isn't a lose as far as getting that CD on the record because now she will go back to the circuit court, regardless of the ruling there, that CD will then be a part of the record, so it's not a lose, is it?

I still think that past mistakes by KZ and her team have prolonged this case longer than it needed to be, but I'm not a lawyer, so maybe I'm wrong too. JMO

From all the reading I have been able to do, I gather that KZ could have done what she did, or she could have asked for the case to be remanded back to the circuit court to have the CD added. I kind of like that now KZ and the lower court are on time constraints set out by the CoA's and KZ may not have "planned" for that, but it's good. Had she asked for it to be sent back, I don't think the timeline would be set out like it was. JMO

 

[missy1974]

Yes. This is a win for Zellner. She knew it was going back to circuit. It is exactly how she planned it. She will now be allowed to present new items of evidentiary value. She will be granted at the very least an evidentiary hearing this year. Mark my words.

Ya know, it's unclear whether she will be able to bring other "new information" .... the order makes it sound that way, but KZ in a tweet didn't..... her tweet only mentions the CD:

The Wisconsin Appellate Court is letting us supplement our post-conviction motion with new Brady evidence: the CD. Back to circuit court first and then to App. Ct. w/a complete record. #MakingaMurderer @lifeafterten @EFMoriarty #TruthWins
​

I guess we will just have to wait and see Either way... that CD will then be part of the record regardless of the lower courts ruling on it.

 

[ACJL]

I am pretty sure that I have made it clear that I have been a critic of KZ, and I'm pretty sure in my post I didn't say I thought this was part of her plan.

Yup you gave an example, but I can ask, can't I?

I wonder though, about that example... were you critical the moment it happened? Or in hindsight, when it became known she had made a mistake?

What I did say is that this really isn't a lose as far as getting that CD on the record because now she will go back to the circuit court, regardless of the ruling there, that CD will then be a part of the record, so it's not a lose, is it?

And all I said earlier is that the result didn't surprise me.

Strange way to "win"/"not lose" though. If she wanted the case to be remanded she could've asked the Court of Appeals to do so. She just failed to prove the CD should be added to the record. Do you really think that if she failed here the CD will somehow, automatically, be part of the record in the circuit court? For some reason many Avery Supporters seem to think so... but does this sound even remotely plausible?

I think she will have to show Judge Sutkiewicz exactly which files the Defense never had that warrants consideration by the trial court and that could not have been argued in her June Motion. She can attempt to demonstrate why this one piece of alleged new evidence was allegedly wrongfully withheld and would otherwise have been presented in her June Motion and would have made a difference.

She did get more delay.

 

[ACJL]

Obviously any justice for TH would involve taking account of possible suspects

Thanks, that's kinda what I was trying to tell CoolJ! He didn't seem to consider the guy you were trying to describe.

 

[missy1974]

Yup you gave an example, but I can ask, can't I?

I wonder though, about that example... were you critical the moment it happened? Or in hindsight, when it became known she had made a mistake?



And all I said earlier is that the result didn't surprise me.

Strange way to "win"/"not lose" though. If she wanted the case to be remanded she could've asked the Court of Appeals to do so. She just failed to prove the CD should be added to the record. Do you really think that if she failed here the CD will somehow, automatically, be part of the record in the circuit court? For some reason many Avery Supporters seem to think so... but does this sound even remotely plausible?

I think she will have to show Judge Sutkiewicz exactly which files the Defense never had that warrants consideration by the trial court and that could not have been argued in her June Motion. She can attempt to demonstrate why this one piece of alleged new evidence was allegedly wrongfully withheld and would otherwise have been presented in her June Motion and would have made a difference.

She did get more delay.

First... I'm not sure what you are talking about being critical when it happened? I'm not a lawyer, I don't know the rules of the court unless I go looking for them, but when it was known that it was KZ's mistake that she didn't file something with the court and not let them know of an agreement for further testing, yep, I was absolutely critical, you can go back into this thread and find it if you are so inclined.

Next, she didn't fail to prove it should be added, the CoA's said that's not their decision to make yet, they are making her go back to the trial court and she is to file a supplemental postconviction motion there. When she files that motion, I am going to assume that CD will be filed as an exhibit to that motion, thus adding it to the record and it will be considered by the CoA's then.

I think she will have to show more than she has already too, whether it was information that could have been found elsewhere and was disclosed, or whether it was something that had to be disclosed, and whether the contents could have been used in the original trial.

According to the Second motion to supplement filed on November 17th, she didn't learn about this until Nov 11/17, so If I had to guess, it wasn't part of the June 6/17 PCB because she didn't even know about it or didn't know it wasn't disclosed to Strang/Buting.

 

[missy1974]

@ACJL I'm curious as to what you think Zellner has to gain by delaying?

I personally think the delay's are screw ups and not planned lol I know there is popular belief that she is doing it on purpose... but I just don't see what she has to gain from it. Unless she is delaying because she is still waiting on more information... which I don't think is the case right now because I don't think there is any testing going on... I can see her other cases causing delays, but if she thinks SA is guilty, or if she thinks it's a lost cause, why bother to keep the case? She doesn't strike me as the type to do something for nothing and right now she is getting nothing from this that I can see.

 

[CoolJ]

I am pretty sure that I have made it clear that I have been a critic of KZ, and I'm pretty sure in my post I didn't say I thought this was part of her plan. What I did say is that this really isn't a lose as far as getting that CD on the record because now she will go back to the circuit court, regardless of the ruling there, that CD will then be a part of the record, so it's not a lose, is it?

I still think that past mistakes by KZ and her team have prolonged this case longer than it needed to be, but I'm not a lawyer, so maybe I'm wrong too. JMO

From all the reading I have been able to do, I gather that KZ could have done what she did, or she could have asked for the case to be remanded back to the circuit court to have the CD added. I kind of like that now KZ and the lower court are on time constraints set out by the CoA's and KZ may not have "planned" for that, but it's good. Had she asked for it to be sent back, I don't think the timeline would be set out like it was. JMO

I don’t think we can really know for sure if KZ is making mistakes or if most of what she does is by design tactically. I don’t think most lawyers would be able to know either. KZ is one of the most prominent wrongful conviction attorneys on the planet. She doesn’t operate like the 99%. Her tactics are unique. That is why she is so successful.

 

[CoolJ]

Thanks, that's kinda what I was trying to tell CoolJ! He didn't seem to consider the guy you were trying to describe.

I consider all possibilities. That is just how I think and it is why I have come to the conclusions I have on this case. I go with what makes sense. Such as.....

As soon as I saw AC and JL searching SA’s living quarters I knew what this was. No reputable LE agency would allow their officers anywhere near the residence of a person who was suing them for a previous frame job. Add on top of that, the 2 clowns snooping around everytime evidence is found are also deposed in said lawsuit. I mean, c’mon? It truly is laughable, if it weren’t for the fact there are innocent people in jail and probably a murderer still walking free.

 

[missy1974]

I don’t think we can really know for sure if KZ is making mistakes or if most of what she does is by design tactically. I don’t think most lawyers would be able to know either. KZ is one of the most prominent wrongful conviction attorneys on the planet. She doesn’t operate like the 99%. Her tactics are unique. That is why she is so successful.

IIRC back when JS made her decision in October, KZ filed a motion to reconsider and she said that she made a mistake by not filing a notice of intent to file a supplemental motion, but I guess if there is a "plan" and that was part of it... I just don't know. It's JMO and will gladly take it all back if I'm wrong ;-)

 

[ACJL]

I consider all possibilities. That is just how I think and it is why I have come to the conclusions I have on this case. I go with what makes sense. Such as.....

As soon as I saw AC and JL searching SA’s living quarters I knew what this was. No reputable LE agency would allow their officers anywhere near the residence of a person who was suing them for a previous frame job. Add on top of that, the 2 clowns snooping around everytime evidence is found are also deposed in said lawsuit. I mean, c’mon? It truly is laughable, if it weren’t for the fact there are innocent people in jail and probably a murderer still walking free.

I'm quite sure I read somewhere that you said Avery is 100% innocent. Or whatever words you used.

It's cool if you came to that conclusion by considering all facts known. The crime was committed in MTSO's jurisdiction so I can see how they would "help". It's not like they sent Kocourek out there again.

This whole MTSO involvement thing is probably something supporters and "opposers" will forever disagree on.

 

[CoolJ]

This whole MTSO involvement thing is probably something supporters and "opposers" will forever disagree on.


BBM - I highly doubt it. There will come a time when the “opposers” are nowhere to be found. Mark my words.

 

[ACJL]

I'll gladly mark them. Also your other post about the evidentiary hearing.

I doubt she'll get a hearing this year, or in any year, but tbh I do hope she gets one. Could be interesting. And Steven will most likely take the stand, so I'm curious to see how that will go.

 

[CoolJ]

I'll gladly mark them. Also your other post about the evidentiary hearing.

I doubt she'll get a hearing this year, or in any year, but tbh I do hope she gets one. Could be interesting. And Steven will most likely take the stand, so I'm curious to see how that will go.

Kratz too?

 

[ACJL]

First... I'm not sure what you are talking about being critical when it happened? I'm not a lawyer, I don't know the rules of the court unless I go looking for them, but when it was known that it was KZ's mistake that she didn't file something with the court and not let them know of an agreement for further testing, yep, I was absolutely critical, you can go back into this thread and find it if you are so inclined.

No, I believe you. It's just one example, and an old one at that though.

So, what exactly are you critical about right now? About the contents of her motion and additional filings. Did she conduct a test that made you think "Hmm, that's pretty steered" or claim something that made you think "ok, that doesn't necessarily have to be true"?

 

[missy1974]

No, I believe you. It's just one example, and an old one at that though.

So, what exactly are you critical about right now? About the contents of her motion and additional filings. Did she conduct a test that made you think "Hmm, that's pretty steered" or claim something that made you think "ok, that doesn't necessarily have to be true"?

There have been a lot of filings or a lot of information in those filings, and to go back and go through all of it would honestly just take too much time lol But I have been here and actively posting since shortly after MaM was released. I imagine if I went back and looked at my thoughts as they were happening, there were times that I was hopeful that KZ would get this done, then there are times I have been critical and I think it's dragging on unnecessarily. I think there are lots of things that don't necessarily have to be true, but if they can be true... that is where doubt comes in. I use what you call an "old" example because it is a major one IMO. If she had just filed one measly little document with the court, I think we would have way more information right now. It could very well be that a ruling could have already been made and we would be at the appeal level already, although, the courts don't seem to move very fast, so I doubt that.

Asking for extensions or whatever it is that some people are convinced she is doing to delay, if it wasn't legally allowed, the requests would be denied (like her motion to supplement the record) I sometimes wonder if what we perceive as delays are just the justice system. Looking at one case in a bubble it's easy to be critical, on all sides, but taken as a whole, this is just how it works. I'm Canadian, and years ago we went through the family courts here in regards to my step children, it was a brutally long drawn out process, it was emotionally and financially draining, and our situation wasn't unique, it's just the way it works, what we saw as something that could be solved in a day or 2, took years. So if we look at this case like it's just a tiny, very tiny, little drop in the US justice system bucket, I can understand why it takes so long, doesn't make me like it because I want to be done with this case haha

You never answered my post above where I asked what you thought she had to gain from delaying? I have read here and on reddit and elsewhere that she is just delaying, delaying, delaying, but I have yet to read a plausible reason to why she would be. I've read because she thinks he's guilty... well, there is an easy remedy to that, drop him as a client. I've read that it's because she doesn't have anything.... but I don't see that as true IMO

 

[CoolJ]

There have been a lot of filings or a lot of information in those filings, and to go back and go through all of it would honestly just take too much time lol But I have been here and actively posting since shortly after MaM was released. I imagine if I went back and looked at my thoughts as they were happening, there were times that I was hopeful that KZ would get this done, then there are times I have been critical and I think it's dragging on unnecessarily. I think there are lots of things that don't necessarily have to be true, but if they can be true... that is where doubt comes in. I use what you call an "old" example because it is a major one IMO. If she had just filed one measly little document with the court, I think we would have way more information right now. It could very well be that a ruling could have already been made and we would be at the appeal level already, although, the courts don't seem to move very fast, so I doubt that.

Asking for extensions or whatever it is that some people are convinced she is doing to delay, if it wasn't legally allowed, the requests would be denied (like her motion to supplement the record) I sometimes wonder if what we perceive as delays are just the justice system. Looking at one case in a bubble it's easy to be critical, on all sides, but taken as a whole, this is just how it works. I'm Canadian, and years ago we went through the family courts here in regards to my step children, it was a brutally long drawn out process, it was emotionally and financially draining, and our situation wasn't unique, it's just the way it works, what we saw as something that could be solved in a day or 2, took years. So if we look at this case like it's just a tiny, very tiny, little drop in the US justice system bucket, I can understand why it takes so long, doesn't make me like it because I want to be done with this case haha

You never answered my post above where I asked what you thought she had to gain from delaying? I have read here and on reddit and elsewhere that she is just delaying, delaying, delaying, but I have yet to read a plausible reason to why she would be. I've read because she thinks he's guilty... well, there is an easy remedy to that, drop him as a client. I've read that it's because she doesn't have anything.... but I don't see that as true IMO

Hey missy, how familiar are you with the Ryan Ferguson case? It is interesting in that there were many similar delays and extensions. I believe it took Zellner 4 years to have Ferguson exonerated. And it all came down to a Brady violation. No re-retrial.