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[h=4]Freedom for Avery, Dassey? Don't bet on it[/h]Convicted killer Steven Avery faces difficult road in his quest for freedom, experts say.
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Steven Avery listens to testimony in the courtroom on March 13, 2007 at the Calumet County Courthouse in Chilton.(Photo: USA TODAY NETWORK - WIsconsin)
APPLETON, Wis. —<span style="color: Red;">*</span>Attorney Kathleen Zellner has made some bold statements since agreeing to represent convicted killer Steven Avery.
“We are confident Mr. Avery’s conviction will be vacated when we present the new evidence and results of our work to the appropriate court,” Zellner, of Downers Grove, Ill., wrote in a Jan. 11 news release.
A few days later, Zellner wrote this in a tweet: “Won’t quit until (Avery’s) out.”
Despite her optimism, this won't be a slam dunk<span style="color: Red;">*</span>— not by a long shot.
USA TODAY
Steven Avery, Brendan Dassey evidence remains in storage
Legal experts say Avery faces a difficult road<span style="color: Red;">*</span>in his quest for freedom. So does Brendan Dassey, Avery’s nephew. They were convicted in separate trials in 2007 of murdering Teresa Halbach, a 25-year-old photographer who was killed in 2005 when she visited Avery Auto Salvage in Manitowoc County to photograph a vehicle. Both men are serving life in prison.
“It’s extremely difficult to overturn a conviction,” said Keith Findley, a law professor at the University of Wisconsin Law School and a co-founder of the Wisconsin Innocence Project. “The system is designed to (keep convicted criminals in prison). There are all kinds of burdens and hurdles built into the system that makes it more difficult to overturn convictions.
“It’s very, very difficult —<span style="color: Red;">*</span>not to say it can’t happen,” said Findley, who appeared on the hit Netflix docu-series Making a Murderer,<span style="color: Red;">*</span>which chronicles Avery’s legal odyssey and raises questions about the prospect of authorities planting evidence and framing him for Halbach’s murder.
USA TODAY
Manitowoc Sheriff Department Lt. Andrew Colborn rips Steven Avery report
“But it is not as easy as one would think. The system is deliberately stacked (against defendants).”
Those roadblocks include a provision that federal appeals courts must defer to state court decisions unless previous rulings are<span style="color: Red;">*</span>completely unreasonable.
[h=2]UP NEXT[/h][h=2]03[/h]
On Feb. 11, the Wisconsin Court of Appeals will hear the motions Avery filed. His murder conviction was the subject of Netflix's "Making a Murderer."
Video provided by Newsy Newslook
The Wisconsin Innocence Project broke through those barriers after agreeing to represent Avery in an appeal of a 1985 case in which he<span style="color: Red;">*</span>was convicted in the brutal attack of a woman as she jogged along the Lake Michigan shoreline in Manitowoc County.
The legal team was able to prove, by sophisticated DNA testing, that a hair recovered from the crime scene matched a prison inmate other than Avery, leading the trial judge to order in late 2003 that Avery be released.
Avery’s freedom didn’t last long. In late 2005, he was arrested for Halbach’s murder.
Avery’s new lawyers have yet to file an appeal, and haven’t indicated if they will seek relief in the state or federal system.
USA TODAY
Making a Murderer
In either case, Avery’s team will have to produce compelling new evidence to have a reasonable shot at success.
Former Wisconsin Supreme Court Justice Janine Geske said that will be difficult.
“(Avery) had some of the absolutely best lawyers in the state,” she said in reference to Dean Strang and Jerry Buting. “They brought a lot of the issues in front of the jury and lost.”
Geske said exonerations and successful appeals are based on constitutional issues and compelling new evidence —<span style="color: Red;">*</span>not unrest from people who watched<span style="color: Red;">*</span>Making a Murderer<span style="color: Red;">*</span>and thought Avery and Dassey got raw deals.
“It’s definitely done well from a film standpoint,” she said.<span style="color: Red;">*</span>“They had this perception that (Avery) was wrongfully convicted and I think that’s how the film has been portrayed. Even if there are some questions, this isn’t a whodunit to me.
“People don’t understand that you don’t just set aside a verdict like that without a substantial reason —<span style="color: Red;">*</span>not just feelings.”
USA TODAY
'Making a Murderer': Where are they now?
While Avery’s attorneys have yet to file an appeal, Dassey’s federal court case is awaiting a decision by U.S. Magistrate Judge William Duffin of Milwaukee.
Dassey’s lawyers from the Bluhm Legal Clinic at the Northwestern University School of Law in Illinois filed a writ of habeas corpus in 2014. They contend that Dassey, who was 16 at the time of Halbach’s murder, was illegally arrested and imprisoned.
The defense argues<span style="color: Red;">*</span>that Dassey’s confession was fictitious because of improper interrogation techniques,<span style="color: Red;">*</span>and maintains that his pretrial attorney was not looking out for Dassey’s best interests by pursuing a possible plea agreement.
Previously, the state appeals court ruled that Dassey’s confession was voluntary and admissible.
Michael O’Hear, a professor of law at Marquette University, said habeas corpus cases are extremely difficult to win.
“It’s a very high standard to get relief from a habeas,” he said. “The federal court will defer to decisions by state court unless they are unreasonable, or if they have egregiously misfired.
“The (success) rate for federal habeas is very low. The statistics I’ve seen most recently showed maybe a 1 to 2 percent success rate nationwide."
One writ that was granted was filed by attorneys for Michael Piaskowski, who was convicted with five other men in the 1992 murder of Green Bay paper mill worker Tom Monfils. A federal judge ruled in 2001 that there was insufficient evidence to support a conviction. Piaskowski was freed from prison.
USA TODAY
'Making a Murderer' creators defend themselves to 'Daily Show,' TCAs
Even though many viewers were taken aback by the interrogation techniques detectives used against Dassey, that doesn’t mean his conviction will be set aside, O’Hear said. He added that online petitions to free Dassey or give him a new trial mean virtually nothing in the appeals process.
“I don’t think anybody should get it into their heads that just because Mr. Dassey has a petition pending that it will result in a change of incarceration. Filmmakers have certain editorial perspective. Viewers of this may not have all of the information,” O’Hear said.
Follow Andy Thompson<span style="color: Red;">*</span>on Twitter: @Thompson_AW
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