After Kathleen Zellner filed her Motion for Post Conviction Relief, the internet was ablaze with discussions about its content. The motion covers everything from misconduct to ineffectiveness of counsel with supporting documentation attached. Every line of the document was ready to be read, scrutinized and discussed. Seemingly, that is exactly what happened. Suddenly, everyone was talking about her naming the killer in her motion. She even gave a detailed account of how he did it. The only problem is, actually she didn't.
Ineffective Assistance of Trial Defense Counsel
Starting on page 43 of her motion, she covers ineffective assistance of trial defense counsel. For over 85 pages, she covers every aspect of this argument. Every failure to present an expert witness, to investigate claims leveled by the prosecution, every error in judgment made by Avery's previous defense counsel team was laid out in painstaking detail. Included in all of this was also the failure of the defense to validate police procedures taken during the investigation, and the defense counsel failure to protect their client from law enforcement procedural error. She included affidavits from experts in fields such as crime scene investigation, DNA analysis, blood spatter analysis, or forensic fire analysis.
Each argument is meticulously covered, complete with examples. This is where the belief that she accused Halbach's ex-Boyfriend comes in. In the original trial, Avery's defense actually did try to a statement under seal identifying 10 other people with access and opportunity; in other words 10 alternate suspects. Judge Willis ruled against admitting this statement, unless defense counsel could also provide motive.
Judge Willis believed that access and opportunity alone did not satisfy a rule of evidence.
State v. Denny (1984)
The rule of evidence in Wisconsin is clarified in State v. Denny (1984). In this decision, the court clarified “legitimate tendency” as it is used to satisfy a rule of evidence. Legitimate tendency is the reasonable belief that a direct connection can be made in regards to evidence.
In other words, you cannot offer evidence that is so remote in time, place, or circumstance that it cannot be directly connected to the crime. You do not have to prove guilt to satisfy Denny, but you do have to prove access, opportunity, and according to Judge Willis, motive.
On page 105 of Zellner's motion is where Mr. Hillegas shows up. On this page, she presents that he is the only person that satisfies all of the requirements of Denny. As with every other aspect of her motion, she spells out precisely how Hillegas satisfies those requirements. Kathleen Zellner is well aware that she does not have to prove guilt, only to prove that Hillegas had motive, opportunity, and access. Once she has satisfied the legitimate tendency test, she is free to then point out issues with his behavior, such as not being honest with investigators.
She can lay out a plausible scenario to exhibit that not only did police do poor investigatory work with regard to Mr. Hillegas, so did his previous counsel. While this might be considered to be an accusation, for the purpose of the motion, it is a way to highlight her argument of ineffective assistance of trial defense counsel. And perhaps proof of a poor investigation by law enforcement and the district attorney's office as well.
