8.November 2 Voicemail Access, Investigative-Bias Theory, and Deferred Admissibility Ruling
49 linesMR. KRATZ: Judge, I would like to be heard outside the presence of the jury, please.
THE COURT: All right. At this time the Court will excuse the members of the jury.
(Jury not present.)
THE COURT: We'll excuse the witness from the courtroom as well. You can step out in the hallway.
(Witness not present.)
MR. BUTING: Judge, actually --
THE COURT: All right. I believe the jury and the witness are both out of the courtroom at this time.
MR. BUTING: Actually, I think we might need this witness to be able to make this argument, but. What is Mr. Kratz's objection?
THE COURT: Mr. Kratz.
MR. KRATZ: These are voice mail messages that were retrieved, I think it's clear, and I think Mr. Buting knows, from family members of Teresa Halbach, after she was missing on the second, or third, or something like that. And Mr. Buting's position, if his theory of defense is that Teresa Halbach is alive on the 2nd of November, we're entitled to know that. We're entitled to notice of that. That's my objection, is that it's irrelevant. He is about to show her some retrieved voice mails on the 2nd. It absolutely is meant to mislead this jury and I want an offer of proof, Judge.
THE COURT: Mr. Buting.
MR. BUTING: There's no -- Mr. Kratz may draw the conclusion that because messages are opened as of November 2nd that means that Teresa Halbach was alive on that date, I don't. And I don't think the jury needs to either, but I do intend to introduce records that show that her voice mail was picked up at 8 a.m. on November 2nd and that she was not reported missing for 36 hours more. Somebody listened to her messages, waited 36 hours before she was reported missing.
That's relevant and this jury has a right to know it. And this witness will establish that through this exhibit that I am about to introduce.
MR. KRATZ: I'm thrilled to hear how that's relevant, Judge. I'm thrilled to hear how, if Teresa's brother waited 24 hours to report her missing, how that has anything to do with whether Mr. --
(Attorneys and Court talking over each other.)
THE COURT: I'm not sure --
MR. KRATZ: -- whether --
THE COURT: -- you will have to explain the relevance to me.
MR. BUTING: Somebody --
(Court reporter stops them.)
MR. BUTING: I'm sorry.
MR. KRATZ: I would like to know how, whether her brother waiting 24 hours to report her missing, has anything to do with a fact in consequence, that is, whether Mr. Avery killed Teresa Halbach.
MR. BUTING: Okay. Judge, what we have heard, at the very beginning of this trial, is that nobody reported this young woman missing until about 5:00 p.m. on Thursday, November 3rd. In fact, nobody even started calling each other, or friends about it, until sometime in the afternoon, I think 1 or 2:00 was the testimony from Mr. Pierce, of November 3rd.
Somebody listened to Teresa Halbach's messages. They are opened, from October 31st through November 2nd, at 8:00 a.m. This witness has established that you have to have a password to be able to do that. Somebody with a password listened to her phone messages and yet no steps were taken, no other references.
I'm not saying it's her brother; I don't know who it is. But I do know that the police have had this report in their custody and it's another example of the police investigative bias by their failure to follow up on this. There's a lot of unanswered questions about what was happening in Teresa Halbach's life in those last few days, and why there is this kind of a delayed report. And here we have evidence that should have directed their investigation further and it's pretty obvious now, to hear Mr. Kratz, that it wasn't done.
THE COURT: Mr. Kratz.
MR. KRATZ: I invite the Court to also look at 904.03. If there is any -- any probative value, it is substantially outweighed by the danger of unfair prejudice. But also, more than that, the danger of confusion of this jury to the real issues in this case.
If, in fact, Mr. Buting is suggesting, which I think is the only reason for this, that Ms Halbach may not have perished on the 31st of October, that it doesn't go to law enforcement bias, since Mr. Buting can't tie this up with law enforcement, 904.03, if nothing else, Judge, should exclude this particular evidence.
THE COURT: I don't recall if there was testimony earlier about someone retrieving her phone messages earlier or not. Has there been any testimony about that in the record?
MR. BUTING: There was testimony that someone retrieved her messages on the evening of November 3rd.
MR. KRATZ: They got a phone bill to look at who she called on the 3rd.
MR. BUTING: I believe somebody listened to the messages, but they didn't --
MR. KRATZ: That may be.
MR. BUTING: There is no confusion, there is no unfair prejudice. I don't see any way the State is prejudiced by this. This is just simply a phone record that will attempt to establish something that was going on with this phone, in a very, very critical period of time for this trial, which is between October 31st and November 5th when her car was found, or November 3rd, when she was found missing.
MR. KRATZ: How does that help this jury decide who killed her? That's what the jury is here to do, Judge.
MR. BUTING: Because unless the State is prepared to establish that Mr. Avery had her password, then he's not the one who is listening to her messages on Wednesday November 2nd at 8:00 a.m.
MR. KRATZ: You said --
MR. BUTING: Somebody who knew her, somebody who may have had a motive that he doesn't have and somebody who may have had opportunity, was doing that.
MR. KRATZ: Sounds like --
MR. BUTING: I'm not suggesting that --
MR. KRATZ: -- third party liability, Judge.
MR. BUTING: -- she was still alive.
MR. KRATZ: That's what it sounds like.
THE COURT: I don't --
MR. BUTING: No, but I'm saying -- I mean, I'm not going to argue that part to the jury, because that's what the Court says we're not going to do. But as far as what's relevant is, the police have had this report and the police have not followed up to find out what's up here.
Who was accessing Teresa Halbach's phone mail on November 2nd, at 8 a.m. Either she was alive and doing it herself, or somebody who had a password to her voice mail was doing it. It's got to be one or the two.
And I have a right to introduce this to the jury as a another example of how the focus was all on Mr. Avery. And they knew Mr. Avery didn't have the password. So -- And their theory is, that he's already destroyed the phone.
So, again, this is an investigative lead that could be critical, that the State has -- prosecution and police have not followed up. And the jury has a right to see that, it's part of this defense. I obviously will limit -- we're not going to get into motive -- I will limit it to that.
THE COURT: Does the State know who accessed the voice mail?
MR. KRATZ: I suppose we -- If there was an inkling that Mr. Buting was going to suggest that Ms Halbach was alive at that time, this is something that could have been looked into investigatively. That's another thing that we can do, if the defense is, once again, changing its theory.
MR. BUTING: This is not changing theory at all. This fits perfectly to show that they have not followed up this investigative lead, because this investigative lead points elsewhere than Mr. Avery. Doesn't fit with their theory. And here we are in the middle of the trial and it hasn't been investigated. The jury has a right to know that.
THE COURT: All right. I'm, I guess, having trouble tying it's relevance or probative value. I'm not going to allow it at this time. But I'm not going to automatically exclude it either. I want a little time to think about it. It will give some -- the State some time to see if they have an explanation for who listened to it, or under what circumstances someone listened to it. But I'm -- It's -- I'm having trouble seeing the apparent relevance of it at this stage of the trial.
Let's bring the jurors back in. Do I take it that you have another technical person from Cingular who's going to be testifying?
MR. KRATZ: No, that's what -- that's what Ms Dohrwardt was for, Judge. She's that technical person who is able to testify about the cell sites and about there was no cell site that this hit off of and explain what that means, the significance of that.
THE COURT: All right.
(Jury present.)
THE COURT: You may be seated. Mr. Buting, you may continue. BY ATTORNEY BUTING: