Kathleen Zellner, attorney for “Making a Murderer” subject Steven Avery, says her client’s conviction should be tossed because a phone call from a key witness was hidden from the defense at trial.
According to a 149-page motion filed on Aug. 16, newspaper route driver Thomas Sowinski claims he called the Manitowoc County Sheriff’s Office on Nov. 6, 2005, and told a shift-commander that the saw Steven Avery’s nephew, Bobby Dassey, and another man in the early hours of Nov. 5, 2005, pushing an SUV onto the Avery family property.
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Sowinski said he saw the men while he was delivering the Herald Times Reporter, a daily newspaper based in Manitowoc, Wisconsin.
“I drove down Highway 147 and turned left onto Avery Road,” Sowinski said in a 2021 affidavit included in Zellner’s motion. “Soon after I turned onto Avery Road, I witnessed an individual who I later realized was Bobby Dassey and another unidentified older male pushing a dark blue RAV-4 down Avery Road on the right side towards the junkyard.”
Sowinski said Bobby Dassey, who Zellner has pinned as someone who could have killed Halbach, was shirtless, even though it was early November. The other man was in his late 50s or early 60s, with a long beard, the affidavit says.
Sowinski said he called the sheriff’s office when he learned the then-missing Teresa Halbach drove a Toyota RAV4. He claims that during the call, a dispatcher transferred him to a shift commander who said, “we already know who did it,” referring to photographer’s disappearance. He never heard from law enforcement again, he said.
A portion of the call was recorded but the recording was never given to Dean Strang and Jerry Buting, Avery’s trial lawyers, according to Zellner.
Audio of the call was discovered on a CD the sheriff’s office turned over to Zellner’s investigator, James Kirby, on May 3, 2022.
Halbach’s RAV4 was found hidden in the Avery salvage yard just hours after Sowinski says he saw Bobby Dassey pushing it. Prosecutors alleged at trial that Steven Avery hid the Toyota on the property and planned to destroy with a commercial car crusher when he returned from his family’s cottage in Crivitz, Wisconsin, about 90 miles north of Manitowoc.
Zellner claims that because the recording of Sowinski’s call was withheld, prosecutors committed a violation specified in Brady v. Maryland, a 1963 Supreme Court case that established that evidence that could potentially exonerate a defendant must be turned over to the defense.
She further asserts that Bobby Dassey, Brendan Dassey’s older brother, planted Steven Avery’s blood inside Teresa Halbach’s Toyota and under the hood latch, knowing it would connect his uncle to her murder.
According to Zellner, Strang and Buting should have been permitted to name Bobby Dassey as a third-party suspect because he was admittedly the last person to see Halbach alive, had opportunity to kill her, and because he had a propensity to commit violent acts against women.
It was Bobby Dassey, she says, who used the family computer to pull up violent pornographic images of women who were tortured and killed in the same way Halbach was.
Zellner claims that Dassey was the only person home when many of the 1,625 pornographic pictures were retrieved from the internet. She added that Halbach was the victim of a sexually-motivated murder, and that Bobby Dassey is likely the one who committed it.
“The evidence of Bobby’s searches for violent pornographic images is not remote in time as to be inadmissible but rather, so close in time to Ms. Halbach’s murder that the searches are direct evidence of Bobby’s motive to kill Ms. Halbach.”
Zellner does not have to prove Bobby Dassey killed Teresa Halbach, but must show a connection between him and the crime. If a judge rules a link exists, Avery’s conviction could be vacated. A judge could also let the conviction stand pending the outcome of an evidentiary hearing. It could take several months before there’s a ruling on the motion.
Steven Avery, 60, and Brendan Dassey, 32, are both serving life in prison for Halbach’s murder, Avery without parole. Dassey is eligible for early release in 2048.