1.Felony-Status Stipulation and Jury-Trial Waiver
33 linesTHE COURT: At this time the Court calls State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. Will the parties state their appearances for the record, please.
MR. KRATZ: Good morning, Judge. The State of Wisconsin appears by Calumet County District Attorney Ken Kratz, lead counsel and appearing as special prosecutor in this case. Appearing with me include Tom Fallon, an Assistant Attorney General from the Department of Justice and Norm Gahn, an Assistant District Attorney, from Milwaukee County, Wisconsin, also appearing as special prosecutor.
MR. STRANG: And good morning. Steven Avery appears in person. He's represented by Jerome Buting, immediately to my left, and I am Dean Strang.
THE COURT: All right. We're here this morning, before we bring the jurors out, first of all, to discuss any comments the parties have on the opening instructions that have been provided by the Court. Before we get to that, are there any other issues that either party feels should be addressed before the jurors are brought in?
MR. KRATZ: The one logistical issue I had was during the opening statements and the closing arguments the Clerk, Ms Bonin, has a switch near her which is called public seating or something of that nature. I'm going to ask that that switch, and I got the approval of the sheriff for that --
Quite frankly, Judge, with PowerPoint or other presentations in this area, the gallery and other spectators find it much easier to see those without that one bank of lights, the public seating lights. If Ms Bonin would like to try that at this point so the Court can see, I would appreciate that.
THE COURT: Go ahead.
MR. KRATZ: I think Mr. Buting indicated he had no objection. It just provides less glare and an opportunity for those in the public to observe what it is that we're talking about. Again, I suggest that just for openings and closings.
THE COURT: All right. Any objection?
MR. STRANG: There is not.
THE COURT: Anything else to take up before we address the opening instructions?
MR. STRANG: My thought is that we might take Mr. Avery's personal statement on waiving -- or not waiving, but stipulating to the second element of Count 3 of the second Amended Information.
THE COURT: Very well. For the record, I will note the Court has previously been informed that the defendant intended to stipulate to the second element of the possession of a firearm charge; that is, the defendant's status as having been convicted of a felony before November 5 of 2005.
Before I notify the jury that the defendant is making that stipulation, the Court has to make sure that the defendant is doing so knowingly and voluntarily. So, Mr. Avery, I'm going to be addressing these questions to you.
Before the Court accepts your stipulation to one of the elements of the felon in possession of a firearm charge, I'm going to be asking you a few questions. If you have any trouble understanding any question that I ask, let me know and I will let you speak with your attorneys.
Mr. Avery, do you understand that you have the right to a jury trial in this case and that includes the right to require the State to prove every element of each offense charged, beyond a reasonable doubt, to all members of the jury? Do you understand that?
STEVEN A. AVERY: Yes, I do.
THE COURT: You understand that in the case of the felon in possession of a firearm charge, this means that you can, if you wish, require the State to prove, beyond a reasonable doubt, that you were convicted of a felony before November 5 of 2005? Do you understand that?
STEVEN A. AVERY: Yes, I do.
THE COURT: Do you further understand that, if you wish, you can stipulate; that is, you can agree that you were convicted of a felony before November 5 of 2005 and make further evidence on that issue irrelevant; do you understand that?
STEVEN A. AVERY: Yes, I do.
THE COURT: Do you wish to waive your right to a jury trial on that element; that is, agree that you were convicted of a felony before November 5 of 2005?
STEVEN A. AVERY: Yes, I do.
THE COURT: Have you had adequate opportunity to discuss your decision with your attorneys?
STEVEN A. AVERY: Yes.
THE COURT: And have your attorneys explained to you your right to a jury trial on this element?
STEVEN A. AVERY: Yes.
THE COURT: Has anyone made any promises or threats to you to give up your right to a jury trial on this element of the firearms charge?
THE COURT: Do you understand each of the questions that I have asked you and what your attorneys have told you about this matter?
STEVEN A. AVERY: Yes.
THE COURT: Mr. Strang, have you had adequate opportunity to discuss this matter with your client?
MR. STRANG: Yes.
THE COURT: And do you believe that Mr. Avery is knowingly and voluntarily giving up his right to a jury trial on this particular element of the possession of a firearm charge?
MR. STRANG: On that element, yes, I do.
THE COURT: Very well, the Court does find that the defendant has knowingly and voluntarily waived his right to a jury trial on the second element of the felon in possession of a firearm charge and the Court will accept the defendant's stipulation on that element.
MR. KRATZ: For the record, Judge, the State also acquiesces and accepts the stipulation.