2.Preliminary-Instruction Conference on Party-to-the-Crime Language
28 linesTHE COURT: Thank you. As I indicated previously, I have provided the parties with a copy of the Court's proposed opening instructions. And it's the Court's understanding that those proposed instructions are acceptable to each of the parties with the exception of some language involving the elements of the crime on the two counts that are charged as a party to the crime. First, counsel, am I correct in that understanding?
MR. KRATZ: Yes, Judge. Although the State, as Mr. Gahn and Mr. Fallon and I have spoken, and after our brief conversation in chambers, we are asking the Court adopt a very similar series of language that the Court has proposed in its last submission. I will be happy to put our ideas on the record, but you are correct, Judge, there is one change that we're requesting.
THE COURT: All right. And Mr. Strang.
MR. STRANG: We were satisfied with the whole of the Court's final proposed instructions to be given preliminarily and we object to the modification that the State has offered.
THE COURT: All right. I will hear from the State first, then, on the proposed modification.
MR. KRATZ: Thank you, Judge. The substantive change that we are asking is that towards the bottom of page six of the preliminary instructions, when the Court reads the element of the offense for first degree intentional homicide, as a party to the crime, the Court submit the following language:
That Steven Avery caused the death of Teresa Halbach or aided and abetted Brendan Dassey in causing the death of Teresa Halbach.
As we have indicated throughout the jury selection process and, in fact, in motions before trial, whether Mr. Dassey testifies in this case at all or whether Brendan Dassey is to be referred to at all in this trial is still very much at issue.
To highlight or alert the jury that Brendan Dassey is the individual from which Mr. Avery acted in concert, we believe to be inappropriate and would, as some of the jurors quite candidly indicated in jury selection, suggest that the State should, for whatever reason, be calling Mr. Dassey as a witness, not withstanding his Fifth Amendment rights not to do so, or against self-incrimination.
We're, therefore, Judge, asking that the elements read that Steven Avery caused the death of Teresa Halbach or aided and abetted another in causing the death of Teresa Halbach. Similar language would be inserted into the second element, again, removing the words Brendan Dassey and inserting the words another.
That provides no prejudice to the defense. It is an accurate statement of the law and, again, removes the suggestion that the State in some way has a burden, or obligation, or even practically speaking should call Mr. Dassey or insert Mr. Dassey into this case.
Lastly, Judge, if the Court adopts that change, then the statement or comment as to unanimous agreement not being required, further up on the page, on page No. 6, is in fact appropriate, is required, and we would ask -- I think that's joined by Mr. Strang -- that that instruction be reinserted and added in the preliminary instructions.
THE COURT: Mr. Strang? Well, just -- before I get to Mr. Strang, Mr. Kratz, what is the language, I'm looking at page 6, element one, what language exactly is the State proposing?
MR. KRATZ: Just instead of the name Brendan Dassey, you are just exchanging that with the word another.
THE COURT: Just a second.
MR. KRATZ: Aided and abetted another in the commission of the crime. I think that's a correct statement of the law and as I mentioned, Judge, removes the suggestion that the State have an obligation to set forth its theory of the prosecution when it may very well be that Mr. Dassey not testify in this case.
THE COURT: So, you are proposing to read Steven Avery caused the death of Teresa Halbach or aided and abetted another in causing the death?
MR. KRATZ: That's right.
THE COURT: And with respect to the other references to Mr. Dassey in this count and the other count, you are proposing that in each case it be replaced with another.
MR. KRATZ: Yes, Judge.
THE COURT: Mr. Strang.
MR. STRANG: How I wish that on March 2, 2006, the State had thought it as inappropriate to pair Brendan Dassey and Steven Avery in the commission of these crimes as it thinks it today. And the 11 months of prejudicial publicity that we have had, perhaps we would have been spared, if the State thought then that it was inappropriate to link these two together as co-actors, accomplices in the death of Teresa Halbach.
Today is too late to do that. To now insert the ambiguous term "another", which potentially includes the whole world, is to invite the very speculation about who an accomplice may have been or who a third party culprit may have been, that the State successfully opposed when we made a fairly elaborate proffer on possible third party actors.
Up through that motion, it was the State's position that Brendan Dassey, and Brendan Dassey only, was the possible third party or accomplice in this crime. And now, on no showing at all of the potential culpability of another, the State proposes to throw open the field of possible accomplice liability to the entire world.
That's not fair. It's not consistent with the positions the State has taken to date and it leaves Mr. Avery, on the one hand, unable to suggest directly the liability of a third person; and yet, on the other hand, defending a potentially shifting or unstated theory on who his accomplice or accessory may have been.
The State's choices on this case and on the history of it before seem to me pretty clear. Either stick with Brendan Dassey as the man you think is the accomplice and prove it, or drop the party to a crime allegation in Count 1 and Count 2 altogether and prove that Steven Avery committed this crime without allowing him to run the risk of accessory as a liability to a phantom.
Those seem to me the two legitimate choices. That's why we accepted and agreed with and thought accurate the Court's final draft of the preliminary jury instructions. We equally would accept a redraft that struck the party to a crime theory altogether, but that's the State's choice to make.
It's allowed to decide on what theory of liability it will proceed. It is not allowed on the morning of opening statements to back away from the man it has roped to Steven Avery for 11 months and say, could have been anybody. Just another. Just not fair.
And I would ask the Court to leave the instructions as they are, unless the State wishes to drop the party to the crime theory of liability in which case the instructions would be confined to Steven Avery alone.
As to unanimous agreement, I don't know that I have talked with the State about this at all and, in fact, I don't think that unanimous agreement requirement should be added back. The Court had struck it; it should remain stricken. And the reason is really very straight forward.
Understanding that there is Wisconsin law to the contrary, my view of the due process requirement in the 14th Amendment and the right to a unanimous verdict that it embraces is that the jury, all 12, must be unanimous on whether the defendant is the principal, the defendant directly committed the crime, or whether he was an accessory, that is, an aider and abettor.
Now, I agree, for purposes of discussion in the abstract, that which of two means of aiding and abetting that Wisconsin law recognizes, those, let's assume for the sake of argument, jurors need not agree on unanimously. Once they have decided unanimously, that it is as a party to the crime rather than as the principal that the defendant has been proven guilty.
But this instruction allows jurors to differ and to return a verdict that is not unanimous on the fundamental question of whether one is a principal, or liable as an accessory, an aider abettor, or a party to the crime.
Unanimity instruction, therefore, ought not be given at all at this point. By final instructions, I'm confident that the parties and the Court, in the end, can draft an instruction that treats unanimity properly.
THE COURT: All right. There appear to be two points that separate the parties. And I'm going to rule as follows: First of all, before I indicate the Court's decision, I think it's important to note that what we're talking about here are not the closing instructions that the jury is going to get when it's time to deliberate on the verdict, but rather opening instructions, the purpose of which is simply to make it easier for the jurors to follow the evidence and understand what it is the State has to prove in order to justify a guilty verdict.
With that thought in mind, I think it's best to steer clear of controverted issues that may be clarified as the evidence comes in. The instructions the Court gives in the opening are not necessarily the instructions that will be given in the closing. It's easier to be more specific at that time once the Court knows what the evidence is.
For those reasons, I'm going to -- Actually, I previously changed the elements of the crime language on the two party to the crime charges based on a format submitted by the defense. I'm going to continue to use the defense format, but I will substitute another for Brendan Dassey.
I agree that it's not a good idea at the start of the trial to focus attention on Mr. Dassey; although, I understand that's the basis of the State's party to the crime theory. When the closing instructions are given, depending on how the evidence comes in, the request being made by the defense may well be appropriate. But for purposes of the opening instructions, which are simply to outline the elements that the State must prove, I don't think that level of specificity is required.
With respect to the unanimity language, as I indicated to the parties in prior correspondence, while the comment to the party to the crime instruction would suggest that the unanimity requirement is appropriate, the Court has not had a chance to fully address the defense arguments and there are arguments to the contrary that I believe must be addressed before the Court is in a position to make a final decision.
It's not necessary during the opening instructions to tell the jury whether or not they have to be unanimous. The instructions are intended to help them follow the evidence. Therefore, I am not going to include the unanimity language in the opening instructions.
I did previously reword the opening language to the substantive instructions to notify the jurors that the Court is going to be reading portions of the specific jury instructions. So certainly the possibility is left open that the unanimity language can be inserted in the closing instructions.
I believe that addresses the parties comments with respect to the opening instructions. Is there anything else either party feels should be addressed before we bring in the jurors and swear the jury?
MR. KRATZ: Judge, one housekeeping matter, I don't know if you have reminded the jurors or perhaps -- excuse me -- the public as they were brought in, but without an interest in having a Mike Sherman moment, perhaps all cell phones should be turned off. I don't know if that was something --
THE COURT: Actually, the Court has ordered that no cell phones be permitted in the courtroom and I trust that the folks guarding the entrance to the door have enforced that requirement.
MR. KRATZ: And the attorneys as well, Judge, at least the State has taken care of that and that's the only other comment we have. Thank you.
THE COURT: Anything else from the defense?
MR. STRANG: Nothing here, your Honor.
THE COURT: If not, we can have the jury brought in.
(Jury panel present.)
THE COURT: Good morning, jurors, you can be seated for a brief period of time. The Court has already called this morning the case of State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. In a minute I'm going to read to you some opening instructions in this case, but before we do that, the Clerk will swear you in. So at this time I will ask you to all please rise.
COURT CLERK: If you all would raise your right hand.
(Jury panel sworn.)
COURT CLERK: Please be seated.