A judge dismissed sexual assault and kidnapping charges Monday against a murder defendant who investigators said killed a young photographer with the help of his teenage nephew.
Defense attorneys argued the charges be dropped because the nephew's testimony was needed to support them, and prosecutors missed a Jan. 22 deadline for deciding whether the boy would testify against Steven Avery.
This is the second time rape charges have been dismissed against 44-year-old Steven Avery. He was released from prison in 2003 after serving 18 years for a rape that DNA evidence later proved he didn't commit.
"How many times will Steven Avery be charged in Manitowoc County with rapes he didn't commit?" said Avery's attorney, Dean Strang. "This makes two. ... Forget getting 18 years back for the first one; where do we go to get the last 10 months back? Where do we go to get our presumption of innocence back from a public who believes and has heard time and again that he's an alleged rapist, even before a murderer?"
Four charges remain against Avery, including first-degree intentional homicide and mutilating a corpse. Jury selection is to begin Feb. 5.
Avery and his nephew, 17-year-old Brendan Dassey, were accused of sexually assaulting, torturing and killing Teresa Halbach on Halloween 2005 near their family's salvage yard.
Halbach disappeared after going to the salvage yard to photograph a minivan the family had for sale. Her charred remains were found later in a burn pit at Avery's home.
Prosecutors have been negotiating a plea agreement with Dassey and could reach one by the end of the week, said special prosecutor Ken Kratz. Dassey has indicated he would invoke his right not to incriminate himself but would testify against Avery if the judge granted him immunity, he said.
Kratz decided not to move forward with the assault and kidnapping charges because he couldn't say for sure whether Dassey would testify.
Dassey had been near a plea agreement in May, before his old attorney was removed from the case. He recanted his confession in a letter to the judge. Avery has said his nephew was probably coerced into confessing.
Strang said the prosecutors don't have physical evidence of a rape and kidnapping without Dassey's supposed confession. Kratz said it was absurd to suggest that prosecutors did not have evidence to back up the charges, but he did not detail what evidence they have.