Steven Avery lost his latest attempt at an appeal. Here’s what could happen next.

Chris Mueller
Appleton Post-Crescent

Steven Avery may not have been successful in his latest attempt to fight his conviction for the murder of Teresa Halbach, but his case could still be far from over.

Avery, 59, has been serving a life sentence since he was convicted of killing Halbach, a 25-year-old photographer who disappeared in 2005.

His story was featured in the Netflix docuseries "Making a Murderer," which cast doubt on the motives of police investigating Halbach's death and left many viewers with the impression that Avery and his nephew, Brendan Dassey, were wrongfully convicted.

In late July, the Wisconsin Court of Appeals rejected several arguments Avery has made over the years, including the effectiveness of his attorneys at trial and the way some of the evidence was handled by prosecutors.

A claim Avery and his attorney, Kathleen Zellner, raised in April involving a new witness was not evaluated by the appeals court, which explained in its decision that it had already reviewed Avery's other arguments and that the issue involving the witness "bears little or no relation to those claims already before us."

"This is, instead, a distinct issue that the circuit court should resolve on a standalone basis," the court's decision says.

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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 male” pushing a Toyota RAV4 down Avery Road “toward the junkyard” in the early morning hours of Nov. 5, 2005, according to court documents filed by Zellner.

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 had seen after hearing what type of car Halbach was driving and where it was found. He immediately reached out to the Manitowoc County Sheriff’s Office, but said a female officer told him: “We already know who did it,” the court documents say. 

Michael O'Hear, a law professor at Marquette University, said it will be up to Avery to raise the new witness issue in circuit court. A judge will then have to decide whether it warrants a new hearing.

“If there is an evidentiary hearing on this issue, it could possibly take a long time for that to play out,” said O'Hear, who pointed out the pandemic-related delays faced by many courts in Wisconsin.

The decision to hold a hearing on the claims involving a new witness will be in the hands of a circuit court judge, but it's clear Avery faces an uphill battle in his effort to fight his conviction, O'Hear said.

"The legal standard for getting a new trial is extremely hard to satisfy and it's quite unusual for a defendant to get a conviction overturned at this point," he said.

There is at least one other option: Ask the Wisconsin Supreme Court to review the recent decision released by the appeals court.

The state Supreme Court would not have to look at Avery's case, though — and the likelihood of a review seems low, considering the unanimous decision made by the appeals court, O'Hear said.

He added it's difficult to anticipate what might happen next in Avery's case, given the length of time it has already gone on.

“The defense team has generated a lot more new issues than I would have thought possible a few years ago," O'Hear said. "I wouldn’t want to predict that we’re nearing the end now." 

Contact Chris Mueller at 920-996-7267 or cmueller@gannett.com. Follow him on Twitter at @AtChrisMueller.