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MANITOWOC, Wis. — Kathleen Zellner, attorney for Steven Avery, tweeted "We won!" Monday after the Wisconsin Court of Appeals ordered a motion filed to address new evidence to be heard by a lower court.
Avery is currently serving a life prison sentence for the 2005 Manitowoc County murder of freelance photographer Teresa Halbach, as is his nephew Brendan Dassey. Both are fighting their convictions.
International attention was brought to both cases after Netflix released the December 2015 docuseries "Making a Murderer." The sequel, "Making a Murderer Part 2," was released in October.
The document states: "Due to this case's extensive history, there is a benefit to having existing claims developed or litigated while they are relatively fresh, rather than positioning the claims to be procedurally barred in a future proceeding."
The document goes on to order all claims to date to be considered in a single appeal in circuit court and that the appeal is stayed until those claims are addressed.
Monday's order from the state Court of Appeals comes after Zellner's motion on Jan. 24 claimed a 2011 report shows bone fragments found at the Manitowoc County gravel pit were returned to the Halbach family without the defense being notified. She said the state acted in bad faith and violated Avery's due process rights.
"The state, without notifying Mr. Avery and his attorneys during the pendency of Mr. Avery's direct appeal, caused material and potentially exculpatory evidence to be transmitted to the Halbach family for its potential destruction by cremation or burial," Zellner and attorney Steven Richards wrote in the motion.
Avery's attorneys learned of the 2011 report after filing a Dec. 17 motion for DNA testing on the bones from the county gravel pit.
The Jan. 24 motion came a little more than a week before the deadline for Avery's attorneys to file a brief before the Wisconsin Court of Appeals.
The state filed an objection to the motion and stated that it constitutes a "new and separate action" unrelated to the resolution of Avery's pending appeal.
Wisconsin Department of Justice attorneys wrote in their response that the only question at issue in the appeal's case is whether a circuit court judge properly denied previous motions by his attorneys without a hearing.
"If Avery no longer wishes to challenge the denial of his previous motions, but instead litigate and entirely new ... motion, he can voluntarily dismiss this appeal and pursue that action in the circuit court," they wrote.
The state Court of Appeals granted Avery's motion to stay the appeal and will permit Avery to pursue a supplemental post-conviction motion in the circuit court.
The circuit court will address Zellner's claims and enter an order about its findings and conclusions. A date for the motion hearing has not yet been set.
This article originally appeared on Manitowoc Herald Times Reporter: Steven Avery attorney: 'We won!'; court to hear new evidence in 'Making a Murderer' case