2.Buccal-Swab Envelope Hearing on Chain of Custody and Planting Theory
42 linesMR. GAHN: Your Honor, at this point, I will turn Ms Culhane over to Mr. Buting, if he wishes to voir dire the witness on this point. And I would like to have the opportunity to resume this line of questioning.
MR. BUTING: No, I think he can finish his cross (sic) and if there's any --
THE COURT: Stop. I'm going to excuse the jury for a couple minutes here. We'll bring you back in a few minutes.
(Jury not present.)
THE COURT: All right. You may be seated.
MR. BUTING: Can I take a look at this a little bit closer?
THE COURT: By all means.
MR. BUTING: Okay. Do you want me to discuss this now?
THE COURT: Well --
MR. BUTING: I can --
THE COURT: The reason I excused the jury was, I assume that this is the envelope that the buccal swabs were sent back to the sheriff's department, you are asking to open it so she can say that, presumably, yes, these are the buccal swabs, they are in the same condition they were when I sent them back?
MR. GAHN: No, there will be inside this, the envelope that she packaged them in, which will be all completely sealed with her initials on it from the Crime Lab and show that it has not been opened or tampered with.
THE COURT: Okay. So her initials aren't on the --
MR. BUTING: They are.
THE COURT: -- Federal express?
THE COURT: There was testimony earlier about her sealing something, putting her initials on it. I guess what I'm getting at is, is this the document she sealed, or is there another document inside that's the document that's sealed?
MR. BUTING: Well, Judge, let me just make a point, for the record. I don't know what's inside, I haven't opened this document. But I can tell that as you face the -- as you are looking at the front with the label on it, the left edge of it has been slit open at some point. The cardboard you can see is cut and there is a piece of tape.
I don't know if we should excuse the witness at this point. Well, I think -- that's okay. There is a piece of larger tape sealing it, but if you look closely, there's also just another little piece of scotch tape that could very easily be peeled back without any damage noted and potentially gain access to the inside of that.
I don't know what's inside, but that left hand seal, or left hand side of the envelope, does not appear to be sealed with any kind of evidence tape. Do you see the little piece of scotch tape I'm referring to?
THE COURT: I see a piece of scotch tape on there.
MR. GAHN: Your Honor, we could open this outside the presence of the jury. Open it right now, see what's inside there.
MR. BUTING: I want the jury to see that it's just sealed with a piece of scotch tape, just like what they are going to see a little later. When does scotch tape become proper evidence sealing material? To me this looks like yet another exhibit with Mr. Avery's DNA in it, that has a seal of nothing more than scotch tape.
MR. GAHN: Your Honor, what's happening here is what we tried to work out, I think, in our pre-trial motions. We're getting back into this Richardson frame-up, the defense initially gives an offer of proof that the planting was done by the blood vial in the Manitowoc County Clerk of Court's Office. And that changes today and now the implication is the buccal swab of Steven Avery was used to do the planting of the evidence.
This causes us to have to respond to this. This is outside the scope of what his offer of proof was. I believe it all was outside the scope of what the Court ruled would be the parameters in this case under Richardson and under Denny. And we have to respond to this.
THE COURT: All right.
MR. BUTING: With regard to that. Can I just quickly respond. The difference here is that this witness has testified that some of the DNA appears to have come from a non-blood source. Now, given that, we have a right to respond and show what other sources might be, that's what this is.
THE COURT: I have already allowed you to pursue that. I'm looking at the address label on this document and this is from the Department of Corrections, Stanley Correctional Institution, to Marie Beth Varriale at the Crime Lab. You know, if that's the case, it's not very surprising that it was opened. I thought, initially, that this was the envelope from which it was sent from the Crime Lab back to the Sheriff's Department.
MR. BUTING: It is.
THE COURT: Before I rule on whether or not the jury should see it in its current condition or make any conclusions about it, I think we have to know what it is, if it came from -- if this is the original label, and it came from the crime lab. It's not going be too surprising that it's been opened and closed again.
MR. GAHN: Correct. The critical piece of evidence is what is going to be inside that envelope and that will be the buccal swabs that Ms Culhane used to do the exoneration testing for the Innocence Project in 2003. And what we want to show, your Honor, is that these were not reopened and used to wipe on a key or a hood latch.
THE COURT: Is this -- So this isn't the envelope that you're attempting to show to the jury was sealed with her initials on it and has never been opened since?
THE COURT: Does that change anything for the defense, Mr. Buting?
MR. BUTING: Well, in order to get to whatever is inside, one would have to first open that envelope, as I understand it. And what I'm saying, as I look at it right now, is that that envelope appears, yeah, it's been opened. And I understand that what happened is that probably came from the Crime Lab -- I'm sorry, from the prison, to the Crime Lab, they tested it, put it back in the same envelope, and returned it to Mr. Remiker.
THE COURT: All right. Let's do this. Let me suggest this, what if you present this to the witness, as is, ask her questions, and have her explain anything about its condition. And before it gets opened, I will give Mr. Buting an opportunity to provide a description to the jury of its current condition, including the scotch tape, and you can be -- the State can be asked if you agree with that description.
MR. BUTING: Okay.
THE COURT: Fair enough, Mr. Buting?
MR. BUTING: Sure, no problem.
THE COURT: All right. Someone can come back up and pick up the envelope. We'll bring the jurors back in. Mr. Wiegert.
MARK WIEGERT: Would you like me to give it to the witness, Judge?
THE COURT: Sure.
(Jury present.)
THE COURT: You may be seated. And, Mr. Gahn, you may resume your redirect.