Steven Avery examines options after Wisconsin court dismissal

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Steven Avery still has options despite a few recent setbacks as he continues to try to overturn his conviction for the murder of Teresa Halbach.

Avery, 59, has been serving a life sentence since being convicted by a jury of the murder of Halbach, a 25-year-old photographer who disappeared in 2005. His story has been featured in Netflix docuseries. “Make a murderer”, which cast doubt on the motives of the police and left many viewers with the impression that Avery and his nephew, Brendan Dassey, were wrongly convicted.

In November, the Wisconsin Supreme Court ruled not to review Avery’s case. Avery and his lawyer, Kathleen Zellner, asked the highest court in the state to review the case after a state appeals court ruled against them, dismissing arguments related to the effectiveness of his lawyers at trial and the way certain evidence was handled by prosecutors.

Michael O’Hear, a law professor at Marquette University, said the decision from the state’s highest court was not necessarily surprising, given that it chooses to consider only a limited number of cases.

“They tend to focus on cases that present legal issues rather than messy factual issues,” O’Hear said.

Supreme Court of Wisconsin obtains approximately 1,000 requests for review each quarter but chooses to hear only a hundred cases. It takes the support of at least three of the seven judges for the tribunal to accept a case.

RELATED:Wisconsin Supreme Court won’t consider Steven Avery case as he fights conviction for Teresa Halbach’s murder

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Avery could appeal to the U.S. Supreme Court, O’Hear said, but it’s even more difficult to get a case heard there than at the state level.

“It would be surprising if there was success on this front,” he said.

However, there are other possibilities.

Avery could file a habeas corpus petition in federal district court, where he would have to prove that his constitutional rights had been violated. Only a small number of people who ask for such relief actually receive it, O’Hear said.

A decades-old US Department of Justice study that examined habeas corpus petitions filed over a two-year period revealed that about 3% had been granted in whole or in part and about 2% had resulted in any type of release.

“That wouldn’t be enough to show that there was a near or difficult constitutional question in the case,” O’Hear said. “You will have to show that the state courts really blew this up and committed an obvious violation.”

And even if Avery’s habeas corpus petition somehow succeeds, prosecutors could appeal, potentially prolonging the process for years, O’Hear said.

A claim Avery raised earlier this year about a potential new witness was not assessed in his most recent appeal, but could still make it to circuit court, O’Hear said, although Avery has to show why the issue could not be raised more early.

The new witness, a delivery driver named Thomas Sowinski, claims to have seen “a shirtless Bobby Dassey” – Brendan Dassey’s brother and Avery’s nephew – and “an unidentified older man” pushing a Toyota RAV4 over Avery Road “to the scrapyard” in the early morning of November 5, 2005, according to court documents filed by Zellner in April.

Halbach’s vehicle, a Toyota RAV4, was found later that day at the Avery salvage yard. Sowinski said he realized the significance of what he saw after hearing the type of car Halbach was driving and where she was found. He immediately contacted the Manitowoc County Sheriff’s Office, but said a policewoman told him: “We already know who did it,” court documents say.

Zellner mentioned both the new witness’s request and a possible habeas corpus petition as possible options in a statement posted to Twitter after the Wisconsin Supreme Court chose not to consider Avery’s case.

“We just finished warming up the first run,” she said.

It remains to be seen exactly which path Avery chooses and how long his fight to reverse his conviction will take to unfold, O’Hear said.

“The bottom line is that it is very difficult, for better or for worse, for convicted defendants to have their convictions overturned,” he said.

Contact Chris Mueller at 920-996-7267 or [email protected]. Follow him on Twitter at @AtChrisMueller.



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