Rockford, Illinois News

What Steven Avery prosecutor Ken Kratz said about ‘MaM’ bullet

(ROCKFORD ADVOCATE) – Although Steven Avery’s post-conviction attorney claims a bullet found in his garage never passed through bone, the man who prosecuted him, and Brendan Dassey, say he never made such an assertion.

The bullet in question, which Avery supporters have dubbed the “magic bullet,” is actually a mangled fragment found in 2006, after Dassey told investigators that Avery shot Teresa Halbach several times inside Avery’s garage.

The fragment contained Teresa Halbach’s DNA, which former Calumet County prosecutor Ken Kratz said directly links Avery to the murder. Kathleen Zellner, Avery’s current attorney, does not dispute that fact. She said in June that the presence of Halbach’s DNA falls in line with Avery’s story that officials in Manitowoc County joined Calumet County, those in the Wisconsin Department of Justice, and the “real killer” to set him up by planting evidence.

What Zellner does assert is that had the bullet been shot though the victim’s skull, it would contain bone particles, according to experts she paid to examine the evidence. It contains no bone, the scientists opined, only small particles of wood and a red substance that may be paint.

“The State’s theory that Ms. Halbach’s cause of death was the result of being shot in the head with a.22 caliber long rifle bullet is completely disproven by Dr. (Christopher) Palenik’s testing,” Zellner said in a 1,200-page petition for post-conviction relief she filed earlier this year.

Kratz says the tests disprove no such thing.

“Because two bullets were recovered, and two entrance wounds were observed in the skull, does not mean that those two fragments went through her skull,” he said, referring to page 98 of his closing statements. “And although only two bullet fragments were recovered, there were 11 shell casings recovered.”

In other words, the actual bullets shot into Halbach’s head — one in the left side and one in the back — were likely not recovered. At least one that was, however, forensically links Teresa to Avery’s gun. That gun is the small-caliber rifle that Brendan Dassey told police his uncle kept in his bedroom and used to shoot Halbach after they placed her on the concrete garage floor.

“I doubted the jury would be able to determine the number of times she was shot,” Kratz said, again referring to his closing statement.

And because the majority of Teresa Halbach’s remains were destroyed by fire, the number of times she was shot will likely remain a mystery.

What can be determined is what appears in the trial transcript, most notably what was said by the prosecutor. A claim by Kathleen Zellner to show otherwise, Kratz said, represents an intentional misrepresentation of fact.

“She needs to be called out for her playing fast and loose with the historical record,” he said.

Steven Avery and Brendan Dassey are serving life sentences in Halbach’s death, Avery without the possibility of parole. Dassey had initially agreed to testify against his uncle as part of a plea agreement. That didn’t happen though, largely because of pressure from Avery, who some say influenced Dassey through various family members.

Although he did not testify in Avery’s trial, Dassey took the stand during his own, telling the court he based the story about how he participated in the crime on events described in the James Patterson novel, Kiss the Girls. A jury later found him guilty of first-degree murder, second-degree sexual assault, and mutilation of a corpse. He is eligible for early release in 2048.

His lawyers have been arguing since his conviction that he deserves a new trial, not because he is innocent, but that the confession he gave to police in 2006 violated his constitutional rights. Laura Nirider and Steven Drizin, of the Center on Wrongful Convictions of Youth at Northwestern University, claim Wisconsin investigators Tom Fassbender and Mark Wiegert made a series of false promises of leniency in order to extract information they were feeding Dassey during questioning.

A federal magistrate and a three-judge appellate panel agreed last year. But, the decision was appealed by the State of Wisconsin. A ruling is now pending in the Seventh Circuit Court of Appeals.

If the court affirms the federal magistrate’s ruling, the state could try Dassey a second time, set him free, or ask the U.S. Supreme Court to hear the case. If the Seventh Circuit overturns the 2016 decision, Dassey’s only option would to be to send the case to the Supreme Court or file a new petition for post-conviction relief back in the trial court. For that to happen, his lawyers must discover new evidence.

Meanwhile, Zellner has asked the Wisconsin Court of Appeals to remand Avery’s case to Manitowoc County, where Circuit Judge Angela Sutkiewicz, on October 3, denied the 1,200-page motion in its entirety without considering the whole brief. Zellner is arguing that she has uncovered a wealth of evidence that shows someone else killed Teresa Halbach on Halloween, 2005, and that those findings entitle Avery to an evidentiary hearing.

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