2.Post-Testimony EDTA Motion Proceedings
50 linesMR. BUTING: All right. I have no further questions.
THE COURT: Mr. Gahn, any redirect?
THE COURT: Very well, the witness is excused.
MARC LEBEAU: Thank you, your Honor.
MR. BUTING: What do we want to do with that exhibit he has, can we make a copy and file it later as --
MR. GAHN: What I have here, your Honor, is the exact same copy. I will have this copied and then we can mark it as an exhibit.
THE COURT: Very well.
THE COURT: What's the next number?
COURT CLERK: 446.
THE COURT: 446. All right. The full report will be 446.
MR. BUTING: And just so the record is clear, it's not a report, it's the lab sheets, data, those sorts of things.
THE COURT: I apologize. That's a good correction, because I think the shorter document here is actually entitled a report.
All right. Counsel, at this time the Court will hear argument on the State's motion to admit the EDTA test results. Mr. Gahn, are you going to be arguing that for the State?
MR. GAHN: Yes, your Honor, and I'm going to rely upon the -- that portion in the brief that we filed, our motion to admit EDTA test results and then permit expert testimony on -- in the State's case-in-chief. And I will just refer the Court to pages 10 through 13, which I think certainly talks about the law and the status in Wisconsin.
Basically, I think this Court has to look at the analysis of the EDTA derived from the LC/MS/MS testing procedure and determine if that is admissible. And the Court has to look at three factors under our case law in Wisconsin. Is it relevant? I think clearly it's relevant to the facts in this case.
Number two, is the witness presenting the evidence? Is that person qualified as an expert to do so? I think, clearly, Dr. LeBeau, through his testimony and through is CV, show that that would be the case.
And, three, is the evidence, would it assist the trier of fact in determining an issue of fact. And I think that -- I don't think that the normal or the typical citizen of the community understands LC/MS/MS technology and how it works and what EDTA is and its function and the analysis of that. And I think this certainly would clearly assist the jury in arriving at a decision in this case. And that's all I have.
THE COURT: Mr. Buting?
MR. BUTING: Actually, Mr. Strang is going to take this.
THE COURT: Sorry, Mr. Strang.
(Previous Avery transcripts, Wolstad should be Walstad.)
MR. STRANG: The way we divide things up, your Honor, is that Mr. Buting does the hard work and I come in later. Walstad is the starting point, whether it ought to be or not. Much could be added to the discussion, but I won't. Wisconsin has not adopted the United States Supreme Courts' approach to tender scientific or other expert evidence set out originally in Daubert vs. Merrell Dow Pharmaceuticals in 1993 and elaborated in cases after that.
Wisconsin persists in the Walstad approach and I agree in a general way with counsel that there are three factors the Court need consider, under Walstad, in deciding admissibility initially here. One, is relevance. Two, is whether the tendered witness is an expert. And, three, is whether the evidence or the opinion would be helpful to the jury. Would the Court prefer that I wear the --
THE COURT: Sure.
MR. STRANG: -- mike? How is that? Does that work any better?
THE COURT: Yeah.
MR. STRANG: All right. The third criterion is, would the evidence or the opinion be helpful to a jury? And that really is where we founder here, the question of whether there was EDTA in the blood found in the Toyota. And the critical caveat here, whether there was EDTA in the blood in the Toyota in November of 2005 is relevant. That is, there is a material issue of fact here to be decided by the jury, which is, did the blood come freshly from Steven Avery's finger or some other source on his body, on or about October 31, 2005, or did the blood get in the Toyota because, put there by someone else, presumably from a vial that itself dated back to 1996.
And we can, you know -- The vial contained EDTA, let's assume, for the purposes of argument, even setting aside the expert's opinion confirming that --
(Court reporter couldn't hear.)
MR. STRANG: Even setting aside the expert's opinion confirming that the vial contained EDTA.
So, that's a material question in this case. And evidence that made it more or less likely that the material proposition was true would be relevant here. So, if this is evidence that there was no EDTA in that blood in late October or early November, 2005, then it's relevant.
Mr. LeBeau's qualifications, particularly as an analytic chemist who can use a liquid chromatograph, matched with a tandem mass spectrometer, is beyond serious dispute. We don't dispute that here for purposes of the admissibility determination. He's a good deal more qualified than the holders of bachelor's degrees from our State Crime Laboratory in Madison who have made their appearance in this trial.
But the problem is whether this is helpful to a jury. And what this Court is being asked to do, just so that no one makes any mistake about it, your Honor is being asked to join a select club. In fact, there's only one other member of the club, so far as anyone knows. And the founding member of the club is Judge Lance Ito from the Superior Court of Los Angeles County, in the O.J. Simpson trial.
And, your Honor, the State nominates to be the second member of this club, and that is, of judges or courts who have admitted evidence concerning EDTA analysis, in dried bloodstains, in a criminal trial. And the similarities between which Judge -- that which Judge Ito did and that which your Honor is being asked to do, actually continue.
We now know, after testimony today, that the protocol for testing was prepared hurriedly, that it was prepared during the O.J. Simpson trial which, of course, went a good deal longer even than this trial. I think the preliminary hearing in that case went a good deal longer than this trial. But it was a mid-trial creation of a protocol, mid-trial testing. And, then, evidently, further mid-trial retesting and reconsideration of some of the earlier results.
That, of course, is what we have here. As Mr. Buting has discussed before and I think even offered the Court, or at least read from an email between Mr. Kratz and the Crime Laboratory, non-quantitative EDTA testing of the bloodstains from the Toyota was under active consideration by the State in February of 2006. For strategic reasons, evidently, the State chose not to pursue that testing then.
Now, beginning about the end of January, 2007, the State decided to pursue such testing and enveigled the FBI into doing it -- or prevailed upon the FBI Chemical Unit at the laboratory to assist the State in that manner. Those tests occurred sometime between February 1, when I believe the actual swabs and control samples were received at the FBI Laboratory. I may be off a day or so, but I'm very close there. And what is it, February 26th that our report is dated, or Mr. LeBeau's report is dated.
And if I recall his testimony, the work on a protocol for conducting those tests began in January, 2007. The protocol evidently was, according to his testimony, ready for an approval process by February 14, 2007. We were at that point, nine days into trial.
And that approval process evidently went very smoothly for Mr. LeBeau because the protocol itself was issued and dated February 15, 2007. So within one day, I gather, from his testimony and the date on Exhibit 434, approval was accomplished within the FBI bureaucracy for this protocol.
The protocol was developed for no case but this. The protocol has been used in no case but this. The protocol is unrevised. The protocol has been validated, if at all, only internally, in the FBI, and, again, approved apparently in the course of 24 hours, after submitted for approval. All of these things are similar to the evidence that -- that Judge Ito admitted in the Simpson prosecution, out in Los Angeles County.
We now have results that are non-quantitative and that express, necessarily, an opinion that no EDTA is detected in the swabs, the three swabs from the bloodstains, or in the control samples that were also submitted at the same time. Although, Mr. LeBeau ventures an opinion that he, therefore, can opine that no detectable EDTA was present back at the relevant time, October, early November, 2005. He has to support that opinion, one degradation study and apparently one degradation study only. Your Honor has seen the entirety of it, two pages, one of handwritten notes and one that consists of a short paragraph. And as I understand it, what Mr. LeBeau did was went over to the DNA Unit across the hall, or wherever it is, figuratively, in Quantico, said, let me have some old spot cards, which would be blood on a different medium than submitted here, on a PH neutral stable matrix of a spot card.
And evidently someone told him that the blood on these spot cards came from something from the EDTA purple-topped tube. We don't have much detail on how he satisfied himself of the EDTA origins or content of the spot cards.
These things are about 33 months old. He tests the 10 of them. And he finds EDTA in the free acid form in all 10 spot cards. Finds the iron chelate of EDTA in hardly more than half of them, in 6 out of 10. And sort of dismisses that as insignificant to his conclusion that, boy, EDTA sure must be stable and must not degrade quickly in bloodstains.
We don't know why he dismissed that so freely, other than that he seemed to take reassurance from the fact that he found the free acid form of EDTA in all 10 of these. And that's it. That hasn't been peer reviewed by anybody, evidently not even within the FBI, so far as the record shows. Certainly hasn't been published.
Certainly doesn't explain what differences in degradation there might be, were a different matrix or medium to be used. For example, the cotton swab that was submitted here, as opposed to the blotter paper spot card there, which of course is specifically designed for stabilizing and holding blood.
Doesn't have any way to explain, or hasn't, so far as we can see, considered what environmental differences there may be that would have produced different degradation or could have. And has no way at all to extrapolate to the degradation he would expect in a 9 or 11 year old sample of blood in any medium, whether in the vial, whether on the swab, whether on the substrates found in the Toyota.
So he is not able, here, to give us any curve at all, because he's only got one point to plot on the graph, which is 33 month old spot cards. We don't have anything that's less old. We don't have anything that's more old. We have nothing that would establish a rate of degradation in any environment, let alone in the relevant environment.
So to suggest on that dataset, and with that level of scrutiny, that this is helpful, that an opinion that the EDTA was not detectable or present back in November of 2005, based on a failure to detect EDTA in the blood swabs in February, 2007, really is rank speculation, or so close to rank speculation that it's simply not helpful to a jury. The opinion just isn't helpful.
Now, you know, an analogy, if your Honor were trying a slip and fall case in a commercial establishment and the question, the material issue was what comparative negligence ought we assign to the plaintiff, and the defendant store owner wanted to call a palm reader and an astrologer. The palm reader would say, I have examined the plaintiff's hand and he's the kind of person who is prone to accidents and he must have known that. The astrologer to say, the plaintiff's zodiac for that month, his horoscope for that month, says that he ought to be careful because unexpected things could happen.
This would be relevant under the Walstad standard. And a properly qualified horologist or astrologer, a properly qualified palm reader, one of many years experience, certainly could be qualified as having specialized knowledge. But their opinions, I submit, would not be helpful to a jury. And even under Walstad, wouldn't be admitted because unhelpful, even though the issue of comparative negligence and whether the plaintiff took adequate precautions is relevant and the witnesses are qualified.
The examples are a reduction to the absurd. And I don't, here, stand before the Court and suggest that Mr. LeBeau is the moral equivalent of a palm reader or an astrologer. I don't suggest it. But the example also is illustrative, I think, of how his opinion here, based on the hurried assembly of a protocol, the mockery of a degradation or stability study, the lack of outside validation in any of the work, and the effort to extrapolate without degradation data, back from February of 2007, to November 5, or days before that, 2005, is simply not helpful to a jury. It would be possible here for the Court to admit the opinion that in mid February, 2007, within the detection limits of the FBI Lab, there was no detectable EDTA in the blood swabs. On that opinion alone, the State is on much more solid ground.
But the opinion that, therefore, the blood in the Toyota did not come from the blood of Steven Avery's vial, which necessarily carries an opinion about what the EDTA level would have been, in the swabs of the dried bloodstains at the relevant time, again, autumn 2005, that's not helpful to a jury, because it's wholly unreliable, unsubstantiated, other than by the man who wrote the protocol was one of the people who approved his own protocol, donated his blood for the test, supervised the testing, and assigned himself to the case.
Now, let's not forget, in weighing all of this, that although good, Mr. LeBeau clearly is not perfect. He didn't claim that he is and if it were possible to bring Dr. William Sybers here from Florida, I would have a pretty good witness to tell the Court that Mr. LeBeau and his work is not perfect, neither are perfect.
He was proven wrong there on an effort to extrapolate back, nine years in embalmed tissues, the presence of a metabolite, a muscle paralytic drug, succinylcholine. As we showed, the Assistant Attorney General, Special Assistant Attorney General for the State of Florida, who prosecuted that case, later filed with the court a document warning that Mr. LeBeau's results, and for that matter, National Medical Services results, Dr. Ballard's results, ought not be relied upon.
So it is a select club that your Honor is being asked to join. What's different and, I mean, I'm foreshadowing the next argument, but this has a bearing now on this question. What is different and worse about this case and Simpson is that your Honor is being asked to admit these mid-trial results, and opinions extrapolated backward from the results, without benefit of degradation data, when one side and one side only, as a practical matter, will have the ability to do any testing at all.
And that's where this case really is different from Simpson. There is no reason to believe and, indeed, if my memory serves, both sides in Simpson participated in EDTA testing and had the opportunity to do that, during the course of that trial.
Not so in this. And there is no 14 million dollar defense fund here that there was because O.J. Simpson was the one in a million criminal defendants who had that kind of money to put into his defense for experts, for lawyers, for Barry Scheck and Peter Neufeld, people from the original innocence project at Benjamin Cardoza Law School, people who are well versed in chemistry and in forensic science.
So acknowledging that it would be possible here to allow part of Dr. LeBeau's opinion, that is, the opinion that no EDTA was detectable by the method they used in February, 2007, I think the Court would err and would allow evidence that is not helpful to the jury, were it to allow Dr. LeBeau to go further than that.
And the fact that there will be no independent testing has a bearing on this Walstad analysis because, if for no other reason than because of this, the failure to detect EDTA in control samples here is highly, highly suspicious given the ubiquitous presence of EDTA in the whole gamut of consumer products, from the soft drinks we drink, where EDTA is used to prevent a carcinogen from forming, benzine; to Armor All, used to clean cars and their interiors; to all sorts of personal care products, detergents, cleaning products; the failure to defect any EDTA in any of the controlled swabs is a bright red flag here. And we would start immediately with that, if we had an opportunity to do independent testing. Because it's just flat out counter intuitive.
It just does not comport with common sense. I will venture a guess that the belief that the State would find EDTA in the dried bloodstains and in controlled areas is what led the State, tactically, in February, 2006, not to undertake this very testing, on which they have taken a chance now, once it turns out there is a blood vial, that there was a source of whole blood that could have been planted here, conceivably. And I don't know whether the answer for those control swabs would lie in just because there really was no EDTA detectable, or whether it would lie in the dilution that the FBI used, 200 microliters of inner reagent or fluid added to five microliters of the sample. I don't know. I'm not a chemist. We'll never know before this jury comes back with a verdict, if the Court admits Dr. LeBeau's testimony.
I ask the Court not to go down that path, not to join Judge Ito's club and not to admit opinions from Dr. LeBeau that, although they sound impressive, coming from an FBI expert, in fact, offer no honest help to this jury.
THE COURT: Mr. Gahn.
MR. GAHN: Your Honor, the State is simply asking this Court to apply the law in Wisconsin to the admissibility of expert testimony and scientific evidence in Wisconsin. We have given you a statement of the law, I'm sure the Court is aware itself of the standard in Wisconsin for the admissibility of this type of evidence. I think Dr. LeBeau clearly established to this Court the wide use of the LC/MS/MS technology and that it is a technology that can test for chemicals, it doesn't make any difference what that chemical may be.
He's testified how samples will come into the FBI and say, would you test this to see if there are any chemicals in it. And perhaps there will be a panel that they will find. Or some item will come in and say, will you test this for a specific chemical, such as cyanide, or something, or EDTA.
All of that is possible to be done. It's done with very standard well recognized instruments in the scientific community and that's exactly what he did. Samples were submitted to him to test for the presence of EDTA. He has the technology that is world wide recognized, capable of doing that. And that's what he did.
I think he explained well that this was a qualitative test, not a quantitative test. I note that the defense has talked a lot during cross-examination about quantitating this. But how do you quantitate something that's not there.
His test results on the bloodstains from the RAV4 and on the controls from the RAV4, there was nothing there. So this was a qualitative test under the umbrella of analytical chemistry and very valid in the scientific community.
I think he established his background and experience in the area of degradation. They did their own degradation studies. He talks about so many other fields that are testing for EDTA. EDTA can be somewhat of a problem because it does stay around, binds to metals. And there's problems in the agricultural world, wildlife, fish, and game.
I think he was clear, this isn't something that's not tested for, it is tested for and it can be tested for. Everything that the defense has brought up, whether it be about the controls, the commercial products, suspiciousness about the testing results, datasets produced, degradation rates, all of that clearly goes, your Honor, to weight of evidence and has nothing to do with the admissibility of evidence.
And I think a reading of the Peters case, where they did an analysis under the DNA testing, clearly shows the difference between admissibility and issues that are for the weight of evidence. So I would ask the Court simply to -- we're not inviting you to join any clubs, your Honor, we're just asking you to look at the law in Wisconsin and apply it to the testimony that you heard from Dr. LeBeau. Thank you, sir.
THE COURT: All right. Well, the reference to Judge Ito's club is interesting. Actually, from my recollection of that case, I believe that the evidence came in without objection, because both parties must have felt they had something to gain by it. So to the extent there is a club, one way or another, I think I'm probably the only member.
The historical reference to the O.J. Simpson case is interesting, but my obligation in this case is to apply the law as it is in Wisconsin and determine whether or not the offered evidence is admissible in this case. And I think it's helpful to briefly review the standards that have historically applied in this jurisdiction and others, governing the admission of evidence.
At one time, the prevailing standard in many parts of the country was what is known as the Frye test, which held that the trial court is to determine whether the expert evidence had gained general acceptance in the particular field to which it belongs. In this case, I think there's a serious question about that, because of the lack of a significant history of EDTA testing.
The United States Supreme Court subsequently replaced the Frye test with the Daubert test, which relaxed the federal standards somewhat, but still required a trial court to assure that expert testimony is reliable. In Wisconsin, it's pretty well established that we have a standard that is more lenient than even the Daubert test, that is the standard that's set forth in Section 907.02 of the statutes.
That statute provides that, as a condition to the admissibility of expert testimony, the evidence is admissible if it is relevant, if the witness is qualified as an expert, and if the evidence will assist the trier of fact in determining an issue of fact.
In this case, I don't believe there is a dispute between the parties on the first two issues. Unquestionably, the evidence relating to the question of whether or not the blood in the RAV4 was planted is relevant, certainly it was the -- a large part of the defense's opening statement and cross-examination of some of the witnesses. And, likewise, the State is equally concerned to show the jury that the blood was not planted, but came directly from the defendant. So I think it's definitely relevant.
Likewise, there's not a serious dispute that the witness in this case, Dr. LeBeau, is qualified as an expert. He testified as to his qualifications. He's got a master's degree, a doctorate degree. He's worked at the FBI Lab for a number of years. In fact, he's the head of his section. There's no question that he is qualified as an expert.
The issue boils down to whether the evidence will assist the trier of fact in determining an issue of fact. And I think some of the comments that have been included in Wisconsin Court of Appeals decisions and the Supreme Court are worthwhile repeating here as a backdrop, if you will, to the standard the Court is to apply.
The Court of Appeals in the Riva case, reported at 266 Wis. 2d, 696, noted as follows: The approach, that is, the Wisconsin approach to allowing expert testimony, has served to reduce the gatekeeper role of the Wisconsin trial court when it comes to expert testimony. Reliability is not part of the trial court's function. Rather, reliability is an issue for the trier of fact, not the trial judge as a predicate for admissibility. The reliability of expert testimony is an issue for the trier of fact, not the circuit court as a predicate for admissibility. Instead, Wisconsin relies on the vehicle of cross-examination to test the reliability of an expert witness.
So in looking at some of the items of dispute, as Mr. Strang pointed out, and which I'm certain will be a part of the cross-examination of the witness in this case, there are points to be made with respect to the reliability of the testing method that was used in this case.
However, the Court cannot say that the evidence would not assist the trier of fact in determining an important issue. The witness' testimony was, to a reasonable degree of scientific certainty, that the blood that was found if the RAV4 did not come from the blood vial in this case. The results are not quantitative. To be certain, the question of degradation is an issue which will no doubt be explored by the defense in its case. But for the Court, on it's own at this point in the proceedings, to make a determination that degradation has been demonstrated to the point that the evidence will not assist the trier of fact, is simply further than the evidence presented today authorizes the Court to go.
The witness testified he didn't believe that the difference in the results here could be explained in terms of degradation. And while the evidence may not be conclusive one way or another, the Court is not in a position, under the law which the Court is expected to apply, to make that determination today.
So, in conclusion, I believe that the State has met its burden here to show that the evidence of this expert is admissible under the standards of Section 907.02 and the Court will grant the State's motion to allow Dr. LeBeau to testify in this case.
Based on the Court's decision on the State's motion, it is necessary to rule on the defense motion for sequential and independent testing. I am going to take a few minutes to retire to chambers and review my notes about this and then I will come back and issue an oral decision on that motion as well.
MR. BUTING: Judge?
THE COURT: Yes.
MR. BUTING: Just a point of clarification, so the record is clear, the Court is allowing Mr. LeBeau, then, to give an opinion -- two opinions, the two opinions sought by the State, that no EDTA was in the swabs when he tested and that his opinion is, therefore, the blood on the swabs could not have come from the tube of blood. Is that right?
THE COURT: I believe he's got opinions about the blood in the tube as well as the blood in the vehicle. And I'm allowing him to testify about both those items.
MR. BUTING: But the ultimate opinion, though, of saying that the blood on the swabs could not have come from the blood in the tube; is that being allowed?
THE COURT: Yes.
MR. BUTING: All right.
THE COURT: We'll resume in 15 minutes.
(Recess taken.)
THE COURT: All right. Mr. Strang.
MR. STRANG: I'm sorry, your Honor, just two follow-ups. One, we neglected to move the -- I think Exhibits 438 through 446, which were the items the defense marked on Dr. LeBeau's cross-examination.
THE COURT: Any objection?
MR. STRANG: No objection there.
THE COURT: Very well, all the exhibits marked today, then, are admitted into evidence.
MR. STRANG: Second, your Honor, I would be remiss if I did not pose directly to your Honor an argument that Walstad ought to be overruled and that, in the end, Wisconsin courts ought to come in line with Daubert and adopt a similar test of admissibility of scientific or expert testimony.
I make that argument now and suggest that, particularly on something this complex, with as little of the underlying criteria of reliability as there are present, a court acting as gatekeeper with, in many ways, superior resources and perhaps background knowledge of scientific endeavors, could not make a finding of reliability as a threshold matter to admissibility on the opinions that Dr. LeBeau proposes to offer.
To the extent that Wisconsin leaves that reliability determination to a jury of laypersons, I think that this rises to a due process denial. A criminal defendant has a right both to be tried and sentenced on reliable information. The due process roots of that go at least back to the United States Supreme Court in Williams vs. New York, which I think is 1948. And I'm sorry, I don't have a citation because I'm relying on my memory of the case here.
But to the -- If the Court correctly applied Walstad, a point on which I respectfully disagree with the Court, nonetheless, leaving the reliability here to a jury for this unreliable evidence that the State proposes to offer, I think results in trying Mr. Avery on unreliable information and rises to the level of the due process violation.
So I ask the Court, on those brief remarks, to reconsider its decision on the assumption that Walstad.
would be overruled, that its time has passed, and that Wisconsin will come into line with the federal courts and the growing majority of state courts that rely, either on Daubert or even still on the more restrictive Frye test.
THE COURT: All right. The Court will note your objection for the record. Given the fact that Walstad, I believe, has been reaffirmed a number of times in reported court decisions, I'm not going to -- Well, I'm going to deny the request to reconsider the Court's decision and -- but I will note your objection for the record.
At this time, then, since the Court has ruled that the EDTA expert evidence offered by the State is admissible, the Court is required to rule on the defendant's motion for sequential independent testing and funding. The defendant filed that motion on February 25th in order to permit the defendant to conduct independent testing for the presence of EDTA in what has been referred to as the vial of blood from the Manitowoc County Clerk's Office from the defendant's 1985 case, as well as the bloodstains allegedly belonging to the defendant which were found in the victim's RAV4 vehicle.
The motion requests that the Court grant the defendant permission to conduct testing sequential to the FBI testing. That would involve either declaring a mistrial in this case or continuing it for a period of several months. In addition, the defendant requests that this testing be conducted at public expense because the defendant is indigent.
There certainly is provision in the statutes for expert testing to be conducted by both parties, including the defendant. The relevant statute is Section 971.23 (5). The question in this case is really not so much the right of the defendant to conduct testing, but rather the timing of the request to perform such testing, coming as it does in the middle of the trial.
The parties do not cite the Court to any directly relevant case law on this subject and I don't believe there is any. I attempted to find relevant case law myself. I think the Court's decision has to boil down, as it often does in these cases, as one of fundamental fairness; that is, under the circumstances as they have developed to this point, does fairness and a meaningful opportunity on the part of the defendant to present a defense require that the relief being requested by the defendant be granted.
In order to evaluate all of the circumstances in this case, under that standard, the Court believes it is necessary to first review the relevant procedural history of this case. The Court has to consider not just the inability of the defense to conduct sequential testing at this point in the trial, which I doubt that even the State would contest is a given, I think it would be difficult for the defendant at this point to conduct that testing. But the Court also has to consider the opportunities that the defendant had in the course of these proceedings to conduct such testing, had the defense desired to do so.
In that regard, I would go back, first, to July 10 of last year, which was the date the Court issued an order requiring notification of any extrinsic planting evidence to be provided, by the defendant, at least 30 days prior to the start of the trial.
Approximately 10 days after that, on July 20 of 2006, that represents the date which the State asserted and has on a number of occasions, was the latest date by which the defense knew of the existence of the container in the Clerk of Court's Office, which represented that it contained Steven Avery's whole blood sample according to the defendant's original motion for access.
As the defense noted in it's argument, that's not the equivalent of knowing necessarily that the blood vial was there, because the blood vial hadn't been examined at that point, but the defendant has not disputed the State's assertion that the knowledge of at least the existence of the box representing that it contained the defendant's sample would have been made known to the defendant by July 20th of last year.
On October 27th of last year the Court issued a scheduling order setting both a discovery deadline and the deadline for the State to name expert witnesses to December 15th of 2006.
On December 6 of 2006, which was 9 days before the discovery deadline, the defendant filed a motion for order allowing access to prior court file, which sought the opening of the container purporting to contain the defendant's blood, in the Manitowoc County Clerk of Court's Office.
On December 14, the attorneys for both sides met jointly to examine the vial and found that it appeared to contain whole blood and represented on its label that it was the blood of the defendant. On January 4th, the State filed a motion to exclude the blood vial evidence, or in the alternative adjourn the trial in order to permit the State to analyze the blood sample. A hearing was held on that date.
Five days later, on January 9th, the Court denied the State's motion for a continuance in order to analyze the vial of blood.
On January 12 of 2007, which was not quite, but close to, 30 days before the scheduled start of the trial, the defendant did file a statement on planted blood describing the basis for seeking introduction of the blood vial evidence in this case.
On January 16th, the State filed a reply opposing admission of the blood vial evidence.
On January 19th, the State asked to be relieved of its obligation to disclose expert witnesses with regard to the blood vial evidence. The State did not oppose that request and the Court granted it on the record.
On January 30th, the Court granted the defense request to allow the blood vial evidence in, subject to limitations.
Taking into consideration that part of the procedural history in this case, the Court comes to a few conclusions. First of all, the Court finds that the defendant in this case did timely comply with notice requirements that were set by the Court.
The statement on planted blood that was filed on January 12 was slightly less than 30 days before the start of trial required by the Court's order, but I believe that at some point after December the Court allowed that filing by that date.
The history also shows that the defendant had knowledge of at least the suspected existence of the blood vial long before the State did, that is, sometime on or before July 20 of 2006. The defendant indicates, at page 17 of his brief, that counsel for both sides did not know of the contents of the box until they opened it together on December 14th. And while that technically may be true, given the label on the box which was attached as an exhibit to the defendant's motion and the extensive information about the box in the defendant's December 6th motion, the Court concludes certainly that the defense had much greater reason to suspect the existence of the blood vial well before December 14th; and, in fact, virtually immediately made it in public statements, an important part of the defense case.
The Court also concludes that if the defendant had felt the testing of the blood was important, the defendant had adequate opportunity in which to arrange for such testing. The defendant could have sought release of the blood vial much earlier and requested permission to test it himself under Section 971.23 (5).
In the alternative, if the defendant did not want to risk spending resources on a test which could possibly produce inconclusive or unfavorable results, the defendant could have disclosed the existence of the blood evidence earlier, asked the Court to set a deadline for the State to conduct any testing that it wished to conduct and still allow the defense adequate time to make its own decision as to whether or not it wanted to independently test the blood vial, all of which could accomplish -- been accomplished well before the start of trial in this case.
The Court believes the defense decision not to pursue identification of the blood vial until very close to the discovery deadline was a decision that the defense was entitled to make. That is, I find that it was a reasonable decision on the part of defense counsel. There certainly could have been a number of reasons for making that decision.
While there are procedures for testing EDTA, as Mr. Buting informed the Court on the January 4 motion hearing, there are no standardized -- universal standardized protocols or universally accepted quantitative standards and it would have been entirely possible that the result of any testing conducted by the defense could have been inconclusive. In addition, the testing results could have been inculpatory rather than exculpatory.
Finally, by waiting until shortly before the time it was permitted to do so, the defense may have left the State with less time to prepare to meet the evidence and, specifically, with not enough time in which to conduct the State's own tests. It certainly appeared, based on the original State request to adjourn the trial, that that may well have been the case here. However, the fact that the decision as to the timing of the motion seeking access to the blood vial was within the deadlines set by the Court and was reasonable, that does not mean that the defendant is allowed to second guess the strategy at this point and be entitled to a mistrial or lengthy continuation of the trial in this case.
The Court believes that it would have been highly foreseeable that, once made aware of the blood vial evidence, the State would want to test the blood in order to refute any planting defense and would likely make every effort to do so.
On that point, I think it's worthwhile to go back to the transcript of the hearing on January 4, that is, the hearing on the State's request to adjourn the trial in this case and repeat some of statements that were made at that time.
Defense counsel informed the Court at that time that it only would -- that it would oppose a continuance of the trial date unless the defendant was released on bail. Included among the statements from the record of that hearing are the following from defense counsel: And if, that is, Mr. Avery, is to remain in custody, we will and do oppose adjournment of this trial. We want it to go forward on February 5 if he is to remain in custody. That was from page 18 of the transcript.
On page 19, defense counsel argued, But if the State wants to test and if Mr. Avery is to remain in custody, the trial ought to go forward while the testing process is going forward.
At page 20, defense counsel argued, we don't pursue testing ourselves. We don't know that we will. We aren't asking to, but we understand why the State wants to pursue that testing.
Going on to page 20, we may well oppose, in the end, the admissibility, the relevance of those test results, but that, again, is something the Court could address with the benefit of knowledge of the test results, presumably, and a chance to look at the type of testing that was done, the protocols, and what the case law may have to say about the admissibility of similar tests.
Of course, that all came to pass, but the point is that the defense was aware at that time that the State was going to pursue testing. The defense didn't oppose testing from the State, as long as an adjournment was not granted. And even at that point in the proceedings the defendant was not interested in pursuing independent testing.
Based on that history, the Court concludes in this case that the defense motion for sequential independent testing and funding must be denied. The reasons are as follows:
First of all, the Court concludes that the defendant had adequate time in this case to pursue testing if he wished to do so.
The defense was aware of the likely existence of the blood vial many months ago.
The defendant had an adequate opportunity, after the discovery of the suspected existence of the blood vial, to pursue testing.
As pointed out by the defendant, the State could have pursued testing of at least the blood evidence in the vehicle earlier as well.
But the importance of such testing did not become evident until the defendant disclosed that it was preserved blood in the Manitowoc County Clerk of Court's Office that was specifically the alleged origin of the planting evidence.
There could have been other arguments available to the defendant, for example, we have heard testimony there were traces of the defendant's blood found in his trailer, could have been argued that somehow the State got a hold of that blood or blood from somewhere else that may not have been preserved, that was planted in the RAV4 vehicle.
If the blood that was alleged to have been planted was not preserved blood, the significance of the lack of EDTA would not necessarily have been terribly probative.
Both parties acknowledge that at this stage in the development of EDTA testing, there are not any generally accepted scientific methods for either testing EDTA or interpreting the results. From all the Court has been able to learn at this point, that appears to be due more to the fact that there's not much demand for it than anything else. The Court has not heard any evidence to suggest that it's more difficult to test for EDTA than a variety of other chemical substances. Especially under the standards for admission of expert evidence in the State of Wisconsin, had either party decided they wanted to pursue testing earlier, they could have done so with the knowledge that the test results, as long as conducted by a competent lab, probably would have been admissible.
The Court does not find, in this case, that the FBI is the only lab in the country or is somehow uniquely qualified to perform this type of testing. As we heard earlier today, I think the last time it was conducted by the FBI was at the time of the O.J. Simpson trial.
And referring, again, to the January 4 transcript, Mr. Buting pointed out to the Court at that time that their, meaning the FBI's, expert was called at the O.J. trial, actually used by the defense in the O.J. case, and was very helpful to the defense and ultimately very embarrassing to the FBI who was part of whistle blower allegations in the very lengthy investigation that the FBI Lab did of misconduct, or negligence, or sloppy practices in their lab.
So that's -- The role of the FBI in the O.J. Simpson case didn't exactly establish the FBI as the sole lab in the country that could responsibly test for the presence of EDTA.
Now, there is a case that was cited by the defendant in the brief that the Court does agree is worth examining here. It may be the closest case at least that somehow resembles the facts in this case. That was the case of the United States vs. Kelly, where an appeals court reversed a conviction because the trial court did not allow for a one month continuance of the trial in order to allow for a sequential testing as requested by the defendant.
I'm going to quote from that case briefly setting forth the facts and the ruling of
THE COURT: In June, 1968, the seized drugs -- and it was a drug case -- were sent to Washington for tests, including neutron activation tests which tended to show that the drugs all came from the same original batch.
The government did not inform the defendants of this test. They, the defendants, only became a care of it at the trial, after the testimony of the prosecutions first witness when the government produced its exhibits. The appellants also contend that the government had a positive duty to disclose the results, or at least the fact that they had taken them. This is especially -- This is so, especially in light of the fact the government had opposed discovery on the grounds that the request was not particular enough and now the government alone had knowledge of the particular tests it had taken.
The course of the government smacks too much of a trial by ambush in violation of the spirit of the rules; a new trial is required with a fair opportunity for the defense to run its own neutron activation tests of the material to determine the atomic similarity or dissimilarity of the trace elements in the samples.
The Court believes there are at least a couple of significant differences between the facts in Kelly and the facts here. First of all, the State has disclosed its test results immediately upon receipt, to the defense, the State did not have those test results available until after the trial in this case started.
There is no element of trial by ambush in this case. The Court concludes that the State acted promptly after learning of the existence of the blood vial to seek to have the tests of the blood conducted.
The primary reason for the receipt of the results during the trial as opposed to earlier is because the State did not learn of the existence of the blood vial until months after it was believed to exist by the defense.
The Court also notes that the defense, as I said earlier, could have conducted testing of its own, but did not do so. And as of January 4 of this year, still informed the Court, on the record, it had no plans to do so.
The Court, finally, concludes that the remedies suggested by the defense in this case to allow sequential testing are inadequate. As I suggested earlier, had -- had this matter come up well ahead of the trial, so that the results would have been in before the trial, I may well have ruled differently. I mostly likely would have allowed the defense to pursue sequential testing.
But at this date, the remedies suggested are, first, a continuation of the trial, for an unspecified period of months. And that simply is not practical. I think, actually, both parties, in their briefs, probably recognize that. First of all, it would be very difficult to prevent the jurors from being exposed to publicity about the case in the meantime.
And even more significant than that, we have heard a great deal of testimony. We're beginning week four of the trial, I'm not sure how the jurors could be expected to have -- could be expected to have a meaningful recollection of the testimony that's been introduced, the evidence that's been received, and use that information to come to a verdict some unspecified period of months from now.
Likewise, the Court believes that there are simply no grounds in this case to declare a mistrial. The primary reason that the defense has not conducted EDTA testing earlier is because the defense chose not to pursue it when there would have been time to do so.
The defense has made the alleged planting of blood a vital part of this case. As defense counsel pointed out at the January 4 hearing, he, meaning Mr. Avery, has been saying from the beginning, to anybody with a microphone and TV camera, initially as early as November, 2005, that if his blood was in the Toyota, somebody planted it. So there hasn't been any secret about his defense and his view of the facts.
If testing of the blood was determined by the defense to be vitally necessary to that planting defense, which was known from the very beginning, it should have been pursued far earlier than it has been.
The bottom line in this case is that both parties had an opportunity in this case to pursue testing. The Court believes that because of its earlier knowledge of the existence of the blood vial, the State had a slight -- or the defense had a slightly earlier opportunity, at least than the State, but did not pursue the testing. And for that reason a continuation of the trial at this point is not warranted. Because of the Court's decision denying the motion, it's not necessary for the Court to act on the public funding request from the defense in this case. However, I feel compelled to make a few comments about that request, should it become relevant at some point.
First of all, if a defendant finds himself in the position of Mr. Avery, that is, let's say the defendant was determined to be indigent, I believe the proper course to follow was set forth by the Court of Appeals in the case of Dressler vs. Racine County Circuit Court, a 1991 Court of Appeals case. And the Court, there, essentially, when a private counsel requested funding for testing on the basis that the defendant was unable to comply with the terms of the retainer agreement and financially unable to either continue to pay the attorney or pay for testing, ruled that the defendant should contact the Public Defender's Office, there's a provision in the Public Defender rules to allow, not only for testing, but also to appoint acting counsel, even in the middle of a case, and be paid by the Public Defender, if the defendant is unable to continue to comply with the terms of any retainer agreement.
The other point I will note relates to the affidavit which was filed with the motion in this case. I did take some time to read that and while I don't have the entire retainer agreement in front of me, the affidavit notes that the lump some payment that was paid by the defendant, to defense counsel, was accepted as a minimum earned and maximum fee; that is, the fee was going to be the amount for representation in the trial, regardless of the amount of hours earned.
Also significant in the Court's mind is paragraph 7 in which defense counsel indicates, my firm's retainer agreement with Mr. Avery requires the firm to pay expenses including expert witnesses and any other necessary litigation expenses after the amount in our trust account is exhausted.
Now, as I read that, the logical reading to me would be that the retainer agreement may well obligate defense counsel to pay for testing expenses and that the defendant's status at this time as being indigent or not is not terribly relevant because there is a contractual agreement which has already been fulfilled by the defendant which requires defense counsel to pay for testing or expert witnesses. As I say, my ruling doesn't require me to rule on that, so I'm not going to. I only offer that as my observations.
In any event, the Court is going to deny the defendant's motion for sequential independent testing and funding. I will direct the State to prepare the order, both on that motion and the Court's earlier ruling today.
And I will see the parties tomorrow and the jury will be back here to begin testimony. Anything else before we adjourn today?
MR. BUTING: Do you want to meet briefly in chambers?
THE COURT: That sounds fine, I will see everybody in chambers in a few minutes.
(Proceedings concluded.)