State Response

Defendant Supplemental Response

Kathleen says, "the State, in its response to Mr. Avery's motion, makes no effort to deny the due process violations Mr. Avery alleges, i.e., that the State concealed a police report, failed to give statutorily-mandated notice to Mr. Avery and his attorneys of its intent to destroy biological evidence, then facilitated the destruction of the same evidence. The State should not now reap the benefit of its past statutory and due process violations. Such an outcome would contravene the sense of basic fairness inherent in our justice system.

Wherefore, undersigned counsel respectfully requests that this Court enter an order staying this appeal and remanding the cause to the circuit court for proceedings to determine whether the State has violated Wis. Stat.§ 968.205..."

Note from Tracie Strunsee

"...nobody needed to get upset that they didn't address the issue of the bones since the due process violation isn't actually the motion that is in front of the court. The State argued that the Motion to Stay and Remand should not be granted on procedural grounds, so they didn't need to offer any defense on the constitutional issue.

I should have clarified that obviously the best argument against remanding the case would have been to tell the court that there was no violation since they still had the bones in custody. Since they didn't make that claim, it's safe to say that at least some of the bones were given to the family. We already knew that from the CASO report, but their silence on the issue does essentially confirm it. Personally, I think that also gives more confirmation as to why the case does need to be remanded for a hearing. There is still no reason why they should have argued anything else regarding the disposal of the evidence, though, since that was not the motion in front of the court. Any facts surrounding the disposal (what, why, how) need to be addressed in the circuit court."

Defendant Supplemental Response

Defendant Supplemental Response

Kathleen received a voicemail from Williams, which was intended for Fallon in which he was suggesting they not return Kathleen's call until after they look in the evidence bag to see what's in it. Kathleen says this concerns her very much not only because it implies they're not sure whether they have it or not but also because they agreed in 2017 to allow her to test those specific bones. She feels this shows they are being deceptive and dishonest and have misrepresented to her that they are still in possession of this particular bone. She is requesting that the court consider this information when deciding the motion to stay and remand to circuit court.

Here's a link to the audio: https://www.youtube.com/watch?v=VQJacoELZwU