3.Lynn Zigmunt — Direct/Cross/Redirect/Recross
575 linesMR. FALLON: Thank you. The State would call Lynn Zigmunt to the stand.
COURT CLERK: Please raise your right hand.
LYNN ZIGMUNT, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated. Please state your name and spell your last name for the record.
LYNN ZIGMUNT: Lynn Zigmunt, Z-i-g-m-u-n-t.
DIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: How are you employed?
LYNN ZIGMUNT: I'm the Clerk of Court for Manitowoc County.
MR. FALLON: And how long have you been the Clerk of Court for Manitowoc County?
LYNN ZIGMUNT: Since January of 2005.
MR. FALLON: Tell us, if you would, what are the duties of the Clerk of the Circuit Court for Manitowoc County?
LYNN ZIGMUNT: I administer the Clerk of Court Office, oversee the staff to ensure that there is appropriate coverage for all court proceedings, record keeping, oversee all the record keeping in the office. Create policies for the record keeping and oversee the budget for our office.
MR. FALLON: What kinds of records does the Clerk of Court's maintain?
LYNN ZIGMUNT: All the records for the three circuit courts. So any of the case files that are started, any of the filings that are made within the files, correspondence, pleadings, and exhibits that would be filed with the court as a result of a trial or hearing.
MR. FALLON: And does that include maintaining files and exhibits from files from cases in the past?
LYNN ZIGMUNT: Yes.
MR. FALLON: In your capacity as Clerk of the Circuit Court for Manitowoc County, are you familiar with a case entitled State of Wisconsin vs. Steven A. Avery, Case No. 85 FE 118?
LYNN ZIGMUNT: Yes.
MR. FALLON: And how are you familiar with that particular case file?
LYNN ZIGMUNT: I guess from the large interest of the media in that case after Mr. Avery was exonerated in 2003. We maintain the file in our office so, when there are public requests to view the file, we provide it for inspection. And that file was in our office for said purposes.
MR. FALLON: All right. Now, in your capacity as the Clerk of Circuit Court, do you supervise the other clerks which are employed in that office?
LYNN ZIGMUNT: Yes.
MR. FALLON: And as the Clerk of the Circuit Court are you generally familiar with their duties and responsibilities?
LYNN ZIGMUNT: Yes.
MR. FALLON: And in terms of your familiarity with the 1985 case, can you tell us, based upon your understanding, of where that file had been kept while in the custody of the Clerk of the Circuit Court?
LYNN ZIGMUNT: From the time I took office, the file was maintained in a large like rectangular shaped cardboard box. And it was in our inner office, in a central location, meaning on top of a filing cabinet. And the reason that it was there, I think it was brought up after Mr. Avery was exonerated in 2003, after there was a high interest by the media to look through the file. It was a very big and cumbersome box to have to bring up from the basement where it was normally stored before, in a lower level filing area.
MR. FALLON: I'm going to have some exhibits shown to you, if I may, beginning with a series of exhibits marked 452. Let opposing counsel examine them for a moment or two. While counsel is examining the exhibits, were you asked to bring certified copies of certain documents from case file 85 FE 118?
LYNN ZIGMUNT: Yes, I was.
MR. FALLON: And were you able to obtain copies of the requested documents?
LYNN ZIGMUNT: Yes.
MR. FALLON: And you have received the documents?
LYNN ZIGMUNT: I have received them? Oh, right now.
MR. FALLON: The exhibits.
LYNN ZIGMUNT: Yes.
MR. FALLON: Okay. If you would, directing your attention to Exhibit 452, I believe it is, can you tell us what that is.
LYNN ZIGMUNT: It's a stipulation filed in the case of State vs. Steven Avery, Case No. 85 FE 118. I think -- I believe it was a stipulation signed by District Attorney E. James FitzGerald and Mr. Avery's then attorney, Robert Henak. I believe they entered into a stipulation regarding providing a DNA sample.
MR. FALLON: All right. And with respect to the last page of that document, is there any marking or seal from the Clerk of the Circuit Court which is affixed thereto?
LYNN ZIGMUNT: Yes.
MR. FALLON: Tell us what that is.
LYNN ZIGMUNT: It's a seal stating that this is a full certified copy of the original, which is on file in the Office of Clerk of Circuit Court in Manitowoc County, and signed by me and dated 3/5/07.
MR. FALLON: All right. And what is Exhibit 453?
LYNN ZIGMUNT: An order in the case State vs. Steven A. Avery 85 FE 118. And it's in conjunction with the stipulation wherein the Court ordered that Mr. Avery submit to a DNA sample. It's dated November 29th, 1995.
MR. FALLON: Similarly, is there a certification affixed to that document?
LYNN ZIGMUNT: Yes, there is.
MR. FALLON: And whose certification is it?
LYNN ZIGMUNT: My certification dated 3/5/07.
MR. FALLON: All right. And what is Exhibit 454?
LYNN ZIGMUNT: A letter dated December 6, 1995, from Attorney Robert R. Henak addressed to the Clerk of Circuit Court for Manitowoc County, addressed to Ms Wilda, our criminal clerk, just confirming a telephone conversation where a request was made for a conformed copy of Judge Hazlewood's order to be sent to Elaine Wheeler, Health Service Unit Manager with Fox Lake Correctional Facility.
MR. FALLON: All right. And Exhibit 455?
LYNN ZIGMUNT: A letter dated December 12th, 1995, from Shirley Wilda, Deputy Clerk with the Clerk of Court Office for Manitowoc County addressed to Elaine Wheeler, Health Service Unit Manager with Fox Lake Correctional Facility, enclosing a certified copy of the stipulation and order regarding the DNA sample ordered by Judge Hazlewood.
MR. FALLON: Do the documents to this point indicate the nature of the sample to be submitted for DNA analysis?
LYNN ZIGMUNT: What do you mean by the nature of the sample?
MR. FALLON: Does it say -- specify the form of which the DNA sample would be obtained?
LYNN ZIGMUNT: Enclosed please find a certified copy of the stipulation and order in the above referenced referred to case, which orders that a Health Services Unit at Fox Lake Correctional Institution obtain a DNA sample from the defendant as requested by a Laboratory Corporation of America and forward that sample, as directed, to Laboratory Corporation of America.
MR. FALLON: All right. What is Exhibit 456?
LYNN ZIGMUNT: A letter dated December 12th, 1995, from Shirley Wilda of the Manitowoc County Clerk of Court Office to Attorney Robert R. Henak, enclosing a copy of the stipulation and order which was filed in the above matter. And just confirming that on this date a certified copy of the stipulation and order was mailed to Elaine Wheeler, Health Service Unit Manager at Fox Lake Correctional Facility, per his request.
MR. FALLON: And what's the next -- is there one more or two?
LYNN ZIGMUNT: One more.
MR. FALLON: The last one?
LYNN ZIGMUNT: Exhibit 457, it is -- it's not dated, it's got a file date where it was received in our office, filed June 6, 1996. It is from Lab Corp Molecular Biology and Pathology, addressed to whom it may concern: Enclosing -- Enclosed you will find evidence that your agency submitted to the Forensic Identity Unit at Roche Biomedical Laboratories for analysis. And then in parenthesis, RBL Case No. F95-624. Please reference your agency file, Wisconsin vs. Avery. So it must be -- looks like it's a return of the evidence which was submitted through a DNA sample. I would think returning it to our office.
MR. FALLON: All right. Now, the 454, 455, 456, and 457, those exhibits, do they all have certifications affixed to them?
LYNN ZIGMUNT: Yes, they do.
MR. FALLON: All right. And you are the one who certified --
LYNN ZIGMUNT: I certified --
MR. FALLON: -- those documents?
LYNN ZIGMUNT: -- them and they are all dated 3/5/07.
MR. FALLON: Okay. And so that they are official copies of the records which are maintained in Manitowoc County Circuit Court file 85 FE 118?
LYNN ZIGMUNT: Yes, they are.
MR. FALLON: All right. I would like to show you -- I would like to show you some photographs now, if we may. If you would examine, your attention is directed to Exhibit 464?
LYNN ZIGMUNT: Okay.
MR. FALLON: All right. And do you recognize that?
LYNN ZIGMUNT: Yes.
MR. FALLON: And what is Exhibit 464, please?
LYNN ZIGMUNT: It's a photograph of the two plastic tote storage cases where the case of State vs. Steven Avery, Case No. 85 FE 118 was stored in my office.
MR. FALLON: All right. If I may publish that now. Thank you. Is this a copy of Exhibit 464?
LYNN ZIGMUNT: Yes.
MR. FALLON: It's being displayed on the screen?
LYNN ZIGMUNT: Yes.
MR. FALLON: All right. Tell us, specifically, what is Exhibit 464, what are we looking at here?
LYNN ZIGMUNT: That is the entire case file of the 85 FE 118 case for Steven Avery. The case contains the case file, the paper part of the case file, as well as all the exhibits that were presented in that file.
MR. FALLON: What is the location of that particular exhibit? In other words --
LYNN ZIGMUNT: Of the storage cases?
MR. FALLON: Yes, where are those -- Where was that picture taken?
LYNN ZIGMUNT: In my office.
MR. FALLON: All right. And I believe earlier you talked about the file originally having been contained in some cardboard boxes?
LYNN ZIGMUNT: Right, it was in one large rectangular shaped cardboard box, which was very cumbersome to move and carry. It was quite heavy with all the exhibits in one box.
MR. FALLON: When did the file find it's way into the plastic containers which are depicted in Exhibit 464?
LYNN ZIGMUNT: I had originally thought, like the end of 2005, possibly the beginning of 2006. And I had made a call to my assistant to confirm the exact -- because I bought those storage totes out of -- I was reimbursed out of our petty cash, so she could track down the exact date. And she did call and confirm that it was July of '06 when the purchase was made.
MR. FALLON: Okay.
LYNN ZIGMUNT: So that's when it actually got transferred from that box to these storage totes.
MR. FALLON: And where was the cardboard box before that?
LYNN ZIGMUNT: When it was in our office?
MR. FALLON: Yes.
LYNN ZIGMUNT: It was -- when you walk into the secured area, like, the secured door to our office, it would be, like, straight ahead against the west wall of our office, in kind of like a general walkway. It was -- Our office is kind of partitioned off into sections and that's kind of like a -- just an open like walkway.
There's a desk on one side where sometimes when people, like attorneys, want to come in and review a file or something, we would let them do it on the desk that's in that area. And where this file was was just a little further past that desk, right in front of like the windows on the side of the building there.
MR. FALLON: All right. What is the next exhibit you have in front of you?
LYNN ZIGMUNT: 447.
MR. FALLON: 447?
LYNN ZIGMUNT: And that is a picture of the entrance door to our inner office.
MR. FALLON: All right. 447 is now displayed on the screen. Could you describe for us what we are looking at here with respect to that?
LYNN ZIGMUNT: Well, there's a key code pad that's above the latch and that's -- there's an access code that our staff and -- I think it's just court personnel pretty much that has that access code and you need that code to gain entrance into the inside of our office.
MR. FALLON: So if -- there's a counter I see to the immediate right of the door, under what appears to be a doorbell, what is that counter for?
LYNN ZIGMUNT: The counter is -- that's part of -- like in our lobby area, there's a counter that surrounds our -- the area where we wait on people over the counter. It's kind of an L-shaped area, that's the short part of the L-shape.
MR. FALLON: Would it be fair to say that's where the general public comes to do business in the Clerk of Court's Office?
LYNN ZIGMUNT: Yes.
MR. FALLON: What are the hours of the Clerk of Court's office in Manitowoc County?
LYNN ZIGMUNT: On Mondays, 8:30 to 5 and Tuesday through Friday, 8:30 to 4:30.
MR. FALLON: What is the next exhibit that you are holding, please?
LYNN ZIGMUNT: Exhibit 448.
MR. FALLON: And tell us what is Exhibit 448?
LYNN ZIGMUNT: It is a package, Airborne Express Package. And it was an exhibit and I believe it's the exhibit that contained the box, the blood vial container.
MR. FALLON: All right. If we could pull this up. Exhibit 448 is now being displayed on the screen. Is that the package that the Clerk's Office received from the testing entity, Lab Corp of America?
LYNN ZIGMUNT: Yes, that's what it appears to be.
MR. FALLON: All right. And what is the next exhibit?
LYNN ZIGMUNT: Exhibit 449. It looks like it's the label that is on that shipping package, telling what is enclosed as the exhibit. It says enclosed evidence return from Forensic Identity Unit at Roche Biomedical Laboratory that has been submitted for analysis. Do you want me to read the whole thing?
MR. FALLON: No, I think we have it here. What is being depicted on the screen here as exhibit -- is that 449 that you are holding in your hand?
LYNN ZIGMUNT: Yes.
MR. FALLON: That is the labeling of the package in 448?
LYNN ZIGMUNT: Right.
MR. FALLON: All right. And next exhibit, please.
LYNN ZIGMUNT: Exhibit 450. And this appears to be probably the backside of the square container that held the blood vial.
MR. FALLON: All right.
LYNN ZIGMUNT: The styrofoam container. It has markings on, looks like the date it was opened and it was initialed by the people that were present and witnessed the opening.
MR. FALLON: Very well. And this box was contained within Exhibit 448?
LYNN ZIGMUNT: Correct.
MR. FALLON: Exhibit 451?
LYNN ZIGMUNT: 451 is just the other side of the styrofoam container that held the blood vial. It shows the taped end, where the evidence tape had been and where it was opened.
MR. FALLON: All right. So Exhibits, I think we began with 464, and then we went 447 through 451. Are those exhibits, based upon your knowledge and your responsibilities as a Clerk of the Circuit Court, officially part of the record in the case of State of Wisconsin vs. Steven Avery, 85 FE 118?
LYNN ZIGMUNT: Yes.
MR. FALLON: Your best recollection, Ms Zigmunt, when did the file take up residence, as it were, in your private office?
LYNN ZIGMUNT: Probably my best guess would be this July of '06 when the storage -- those plastic storage tote containers were purchased.
MR. FALLON: All right. And what was the general procedure for allowing access to this particular file by members of the general public?
LYNN ZIGMUNT: We have a sign in logbook that anybody who wants to view a public and open record, they sign in it, that would include the date, the case number, their signature. And if their signature would be illegible, we have them print their signature, print their name.
MR. FALLON: And when did that logbook get created?
LYNN ZIGMUNT: I started that in April of 2005. Before that there was nothing in effect at all to document when files were being reviewed.
MR. FALLON: And who would -- First of all, before we get to that point, let me ask, why did you decide to create such a log?
LYNN ZIGMUNT: I just thought it was important. And going to the Clerk's meetings, being a new Clerk of Court, I gained a lot of information at all the different conferences that we have -- that I have gone to. And that was one of the things that we had discussed.
And, well, and one of the other reasons I thought would be a good idea to have a record like this was because with identity theft being such a big issue, I thought if we had some kind of tracking device, if there was ever a case of identity theft, we would have something to kind of go back and at least see who was accessing certain files.
MR. FALLON: All right. And who would be required to sign such a log?
LYNN ZIGMUNT: In the beginning, I think I had originally wanted the policy to include everyone; the public, and attorneys, and anybody who accessed any file. But some of the staff thought, you know, maybe some of the attorneys that come, if they knew who they are, they thought maybe we didn't have to get their signature.
Or like for title insurance companies too, because when they came in to look at files too, there would be such a long list. We let it kind of go a little lax on it in the beginning. But I'm not sure exactly what the trigger date was, but probably a few months into it, maybe by October of that year for sure, that we got more strict and wanted it to be inclusive of everybody, every single person who viewed any file.
Because I just thought we need a consistent practice. I don't think we can require one person and not another. You know, if we're doing it for a purpose, it's got to be straight forward or it's not serving the purpose.
MR. FALLON: So your best recollection is is that by October of 2005 anyone who was looking at a particular file would be required to sign in?
LYNN ZIGMUNT: Right.
MR. FALLON: All right. And that include -- attorneys and everyone, I take it?
LYNN ZIGMUNT: Right. It was supposed to include everyone.
MR. FALLON: Okay. I believe you have now been presented Exhibit 45 -- or 467, is it?
LYNN ZIGMUNT: Yes.
MR. FALLON: All right. And can you tell us what Exhibit 467 is?
LYNN ZIGMUNT: It looks like it's a book called -- entitled Evidence Room Case Entry Log.
MR. FALLON: All right.
LYNN ZIGMUNT: And it says evidence room and then at the top it says journal so must be some...
MR. FALLON: And is that the case entry log that people would be required to sign into?
LYNN ZIGMUNT: No.
MR. FALLON: What is that?
LYNN ZIGMUNT: I have never --
MR. FALLON: What is that particular?
LYNN ZIGMUNT: I have never seen this before, this must be...
MR. FALLON: All right. Do we have a picture of -- is there a picture of your particular log?
LYNN ZIGMUNT: Here, no.
MR. FALLON: Okay. All right. I just wanted to make sure that we're clear on what that is. Thank you. All right. I would like to direct your attention to the time frame 2005, particularly that year, and begin with this question. Do you know an individual by the name of Andrew Colborn?
LYNN ZIGMUNT: Yes, I do.
MR. FALLON: And who is he?
LYNN ZIGMUNT: He's, I believe, a sergeant with the Manitowoc County Sheriff's Department.
MR. FALLON: And did you recall, or do you recall, ever seeing Sergeant Colborn in the Clerk of Court's Office during the year 2005, your first year in office?
LYNN ZIGMUNT: No, I don't think I have ever really seen him ever in -- especially in the inner part of our office, ever.
MR. FALLON: All right. Are you familiar with an individual by the name of James Lenk?
LYNN ZIGMUNT: Yes, I am.
MR. FALLON: And who is James Lenk, that you know?
LYNN ZIGMUNT: I believe he's a lieutenant with the Manitowoc County Sheriff's Department.
MR. FALLON: And, again, with respect to the year 2005, your first year in office, do you recall ever seeing Lieutenant Lenk in your office that year?
LYNN ZIGMUNT: There was one occasion, in the very beginning of my term, I had contacted the Sheriff's Department regarding questions I had on evidence storage. Because we have a safe that's in my office, where we do maintain various kinds of evidence. There's some drugs and I'm not sure, I think there might be a weapon in there.
And going -- after one of the conferences that I had attended, this was an item of discussion regarding maintaining custody of those types of evidence in our possession. And it was suggested that any time those types of evidence came into play that they should be stored at, like a Sheriff's Department or other issuing agency where there's more -- a more secure facility.
And I had called Mr. Lenk, or he was the person I was put in touch with because he must take care of evidence and things over at the Sheriff's Department. And he had come over to see what was at issue. We discussed it and we discussed a procedure. And I'm working -- I mean, I have been working on a policy and procedure for our evidence retention and we discussed how we were going to handle transferring that to the Manitowoc County Sheriff's Department.
MR. FALLON: And approximately when did that discussion occur?
LYNN ZIGMUNT: I would say it was early spring. It was probably, you know, very early into that year. So for sure, maybe March or April. I don't think I have anything that really actually documents exactly the date, but it was pretty early in the year.
MR. FALLON: Other than that one occasion where you had some discussions about the evidence storage policies, other than that, had you ever seen him in the inner office area of the Clerk of Courts?
LYNN ZIGMUNT: Never. I don't think -- Besides that one incident, I don't think he's ever been inside of our office.
MR. BUTING: Objection to that form of that answer, if she's never seen him inside the office, she can't say he's never been in the office.
MR. FALLON: That's for cross-examination. She answered the question as best she could.
THE COURT: Well, I'm going to sustain the objection, because of lack of foundation, for the opinion about when she was not in the office.
MR. FALLON: That's fine. One minute. Your Honor, we will pass the witness for cross-examination; however, we would move into evidence Exhibits 452 through 457, as well as Exhibit 464 and 447 through 451.
THE COURT: All right. I take it that excludes the item that the witness could not identify that was on the screen.
MR. FALLON: That's right.
THE COURT: But all other exhibits that she testified to, you are asking to be admitted?
MR. FALLON: Yes.
THE COURT: Mr. Buting.
MR. BUTING: No objection to those, 452 is the only one that's not --
MR. FALLON: 467 is not offered.
MR. BUTING: 467, I'm sorry.
THE COURT: All right. Then all the items this witness testified to, other than 467, I understand to be offered and if no objection, they are admitted. Mr. Buting, will you be doing the cross?
MR. BUTING: Yes, I will, Judge. Thank you.
CROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Good morning, Ms Zigmunt.
LYNN ZIGMUNT: Good morning.
MR. BUTING: The -- You became the clerk, elected clerk, in January of '05, is when you took office?
LYNN ZIGMUNT: Yes.
MR. BUTING: So about 10, 11 months before the Teresa Halbach disappearance?
LYNN ZIGMUNT: Correct.
MR. BUTING: Correct. Okay. And would it be fair to state that when you first took office, part of your time was getting used to what the security procedures were and were not --
LYNN ZIGMUNT: That's correct.
MR. BUTING: -- in existence. And you had some concerns that maybe some of the security and some of the procedures were a little bit -- I don't know if lax is the right word -- but not as secure as you would ultimately wish they would be -- them to be, right?
LYNN ZIGMUNT: I think that's a pretty good assumption.
MR. BUTING: Okay. Did you bring the log, evidence log, with you, or the case review log with you?
LYNN ZIGMUNT: No, I didn't.
MR. BUTING: Have you reviewed it before today?
LYNN ZIGMUNT: In detail you mean, or I mean, I guess I haven't paged through and looked, for any reason.
MR. BUTING: Okay. Well, for instance, do you know that every person who has come to that office since October of 2005 and asked to look at any file, has absolutely, positively, been required to sign in on a log?
LYNN ZIGMUNT: Since October of 2005, you are saying?
MR. BUTING: Yes.
LYNN ZIGMUNT: That was the directive I had given and I don't know that it was completely being followed. I think --
MR. BUTING: Okay.
LYNN ZIGMUNT: -- you know, there were people that were making exceptions for people, but we have tightened up on that --
MR. BUTING: Sure.
LYNN ZIGMUNT: -- to make it ...
MR. BUTING: And as of -- Really, you tightened up as of August of '06 is when you really made sure that everybody, all the staff required that people sign in?
LYNN ZIGMUNT: I don't have an exact date, I didn't document it for any reason, so I guess I can't say with certainty.
MR. BUTING: But would it be fair to say that until -- or around that time July or August of '06, until that time you would -- or I should say at that time, you became concerned after talking to some of the staff, that maybe some people weren't requiring everybody to sign in and that this was mandatory at this point forward?
LYNN ZIGMUNT: Yes, I think my concern was, too, that they were allowing like attorneys who -- if they knew them personally, or like I said, the title insurance companies, things like that, those are pretty -- the ones that were allowed not to sign, but I wanted to make it consistent for everyone to have to sign.
MR. BUTING: Okay. Now, you were first interviewed by law enforcement officers in this case at the end of December or early January of this -- just a couple months ago, right?
LYNN ZIGMUNT: I don't know exactly the dates.
MR. BUTING: Well, were you -- did you ever speak to Agent Fassbender or Mr. Wiegert?
LYNN ZIGMUNT: Right, they were in on several occasions.
MR. BUTING: And that was all in the last couple of months or so?
LYNN ZIGMUNT: Yeah, pretty much.
MR. BUTING: So no law enforcement officer came to you in November of 2005 and said, you know, Mr. Avery has been telling everybody that if that blood -- if his blood is found inside Teresa Halbach's vehicle, it must have been planted. Nobody came to you and talked to you about that particular statement, did they?
LYNN ZIGMUNT: No.
MR. BUTING: And between November of 2005 and this past summer of 2006, none of the law enforcement officers came to look at Mr. Avery's 1985 file, none of the investigating law enforcement officers in this case, right?
LYNN ZIGMUNT: I can't say that for certainty. I mean, other people wait on people when they are looking --
MR. BUTING: Okay.
LYNN ZIGMUNT: -- at the file, so.
MR. BUTING: So it's possible that somebody from Manitowoc Sheriff's Department even, may have, after Mr. Avery made the public statements that somebody is framing me, somebody has planted my blood, it's possible that somebody from Manitowoc may have come and looked at his file, to see if there was any blood in it?
MR. FALLON: Objection, two grounds, speculation, and more importantly, it seems to me we have a limited focus of who may have come and looked from Manitowoc County?
MR. BUTING: I'm talking about the investigation, after the disappearance.
MR. FALLON: Then I say relevance.
THE COURT: What is the relevance Mr. Buting?
MR. BUTING: Let me lay some more foundation questions.
THE COURT: Go ahead.
MR. BUTING: Let's do it that way.
MR. BUTING: (By Attorney Buting)~ Let me go back a little bit first. As of October of 2005, the 1985 case against Mr. Avery that was in your office was a closed file, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: In fact, it had been not only a closed file, but it was a dismissed closed file, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: So there were no ongoing post-conviction proceedings, right?
LYNN ZIGMUNT: Not that I'm aware of.
MR. BUTING: Or appellate proceedings, right?
LYNN ZIGMUNT: I mean, I guess I can't really testify to that. I wasn't really that familiar with the file at that time, so I guess...
MR. BUTING: Okay. You weren't that familiar with the file. But you do know that the media was asking and other, you know, freelance writers, or general public was asking about this file quite a bit?
LYNN ZIGMUNT: Yes.
MR. BUTING: And --
MR. BUTING: Let me mark a couple of exhibits here.
(Exhibit No. 468 & 469 marked for identification.)
MR. BUTING: (By Attorney Buting)~ Would it be fair to say that until it was discovered publicly that there was a vial of Mr. Avery's blood in that case file, you weren't aware of it?
LYNN ZIGMUNT: That's correct.
MR. BUTING: And you didn't have any particular concern about the security of that file because you didn't know there was a blood vial in it, for instance, right?
LYNN ZIGMUNT: You mean to take any extra security on it?
MR. BUTING: Right.
LYNN ZIGMUNT: Correct.
MR. BUTING: Okay. And if anything, because there were so many requests to see this file, this file was really kept in a less secure spot within the Clerk's Office than other old case files would be?
LYNN ZIGMUNT: In my office, less secure?
MR. BUTING: No, the Clerk's Office, not your office.
LYNN ZIGMUNT: Not real -- I don't know. I mean, I don't know that it's any less secure; it's a pretty secure -- it's not just open to the general public.
MR. BUTING: Sure.
LYNN ZIGMUNT: There are very few people who have access.
MR. BUTING: But you mentioned how it was cumbersome to have to move this big box up and down the stairs, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: Normally you have -- is there a vault downstairs or just a room?
LYNN ZIGMUNT: Just a room. It's in the basement.
MR. BUTING: Okay. You have a storage room in the basement where your old files are kept?
LYNN ZIGMUNT: Correct.
MR. BUTING: And Mr. Avery's file, being a 1985 file, would be normally down there in that sort of archive area?
LYNN ZIGMUNT: Correct.
MR. BUTING: But for the fact that once he was exonerated, there were so many demands for it, that you left it upstairs in the main area, right?
LYNN ZIGMUNT: Correct. And, actually, I'm not the one that brought it up originally, because I wasn't in office at that time.
MR. BUTING: Okay. So it was actually upstairs before you even came into office?
LYNN ZIGMUNT: Correct, for probably two years.
MR. FALLON: Counsel, can we see those exhibits?
MR. BUTING: Okay. I'm sorry.
MR. BUTING: (By Attorney Buting)~ I'm showing you Exhibit 468 and 469. See if you can identify, first, 468?
LYNN ZIGMUNT: Yes, this was the original cardboard box that the file was maintained in.
MR. BUTING: The file being the Steven Avery file?
LYNN ZIGMUNT: Correct.
MR. BUTING: 1985 file?
LYNN ZIGMUNT: Right.
MR. BUTING: And the one next to it is?
LYNN ZIGMUNT: The same file.
MR. BUTING: Same file from a little bit farther back, right?
LYNN ZIGMUNT: Right.
MR. BUTING: So, it was one of your deputy clerks -- I'm sorry. One of these -- Well, let's publish this so we can talk about it for a minute. This is a picture that shows the file in the Clerk's Office, this is No. 469?
LYNN ZIGMUNT: Correct. It was put on the desk that was used for the viewing area, like when attorneys would come in and view files.
MR. BUTING: Okay. And you mentioned that it was stored kind of on a filing cabinet next to a window?
LYNN ZIGMUNT: Right. Which is kind of behind where that divider is.
MR. BUTING: Let me point to it. Right here, it's right back there, right?
LYNN ZIGMUNT: Yeah.
MR. BUTING: Just over the shoulder of one of your deputies right?
LYNN ZIGMUNT: Correct.
MR. BUTING: And over here is an old vault, like an actual safe with a whole door?
LYNN ZIGMUNT: Right.
THE COURT: We're going to take a break at this time. Let's -- We'll resume at 10:15.
(Juror needs a break.)
(Jury not present.)
THE COURT: You may be seated. And we'll resume at 10:15.
(Recess taken.)
(Jury present.)
THE COURT: And, Mr. Buting, you may resume your cross-examination.
MR. BUTING: Thank you, Judge.
CROSS-EXAMINATION, CONTD.
MR. BUTING: (By Attorney Buting)~ Ms Zigmunt, I found a digital version of what we were looking at before. I'm going to use that so it will be easier to see, okay?
LYNN ZIGMUNT: Okay.
MR. BUTING: Now, I put up Exhibit 469. And the vault that we were talking about, that's the vault door right there, isn't it?
LYNN ZIGMUNT: Yes.
MR. BUTING: I can't read that, it says something safe company. It's very old, hundred years old probably, put in when the building was first built, right?
LYNN ZIGMUNT: I would believe so.
MR. BUTING: But it's not something that you use as a locked location any more?
LYNN ZIGMUNT: No.
MR. BUTING: Wasn't used that way long before you came here, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: Okay. And then over on the other side of Janet's left shoulder is the window that you were referring to where that box was normally kept, until somebody would ask to look at it, right?
LYNN ZIGMUNT: Right.
MR. BUTING: There's a filing cabinet right there, heater, things of that nature?
LYNN ZIGMUNT: Right.
MR. BUTING: Now, the box is -- That is the cardboard box the way it looked until you had it put into plastic tubs sometime in, you think, July, right?
LYNN ZIGMUNT: July of 2006, right.
MR. BUTING: Okay. Well, after this photograph was taken any way, right?
LYNN ZIGMUNT: Right.
MR. BUTING: Okay. Is that the table that you are referring to, there's like a desk or a table that it can be put on when someone asks to see it, if they can go through?
LYNN ZIGMUNT: Correct. That is where they originally used to look at files. I mean, and that one, too, but just with that file being so cumbersome and so many exhibits involved, there's really not a place to spread it out. And it just wasn't a real good location. There's a lot of traffic through that area, from the back room, off into the section where you see the other clerk sitting there. People traveling back and forth all the time, it just didn't seem a real secure place for -- with all the exhibits and all that paper out.
MR. BUTING: Sure. And the file actually has the exhibits in it as well as the paper documents, right?
LYNN ZIGMUNT: Correct. All the exhibits are underneath all of it. I think all the paper was pretty much at the top.
MR. BUTING: Right. And this one has -- this particular file has things like clothing, and whatever was introduced as exhibits just kind of like what we have in this case today?
LYNN ZIGMUNT: Correct.
MR. BUTING: But I want to draw your attention to -- there's a partition right here on the far right side of the picture, right? Some, like, notices posted?
LYNN ZIGMUNT: Right behind the box.
MR. BUTING: Right behind the box, yeah. And so the way it's set -- it's not a partition that goes all the way to the ceiling, but it's not the same height as that -- the partition in the background there?
LYNN ZIGMUNT: Correct.
MR. BUTING: They're all -- There's a number of partitions like that in the Clerk's Office, within the interior part of the Clerk's Office?
LYNN ZIGMUNT: Yes.
MR. BUTING: And so when one is standing there like Janet is, by this box, the people on the other side of the partition don't see the box?
LYNN ZIGMUNT: Correct.
MR. BUTING: And other than this one woman in the background here with the long blond hair, there is no other clerk desk in that back area.
LYNN ZIGMUNT: Correct.
MR. BUTING: So I don't have a schematic of the layout, but the way this works is, this is sort of a narrow hallway that leads to this area right from one of doors that goes to the public area, right?
LYNN ZIGMUNT: Right.
MR. BUTING: And, then, behind the partition, over here is where the main area where all the clerks work?
LYNN ZIGMUNT: Right. There's like a separate area over there. There's I think five including the one with the blonde hair, you know, different work stations that are set up.
MR. BUTING: Okay. So if the clerk who works in that particular workstation is not sitting there right then, when someone is going through this file, you could go through this file without the rest of the clerks directly seeing you moving around things in the box, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: And your deputy clerks, like both of the individuals in this picture, have a lot of duties, they move to and fro during the day, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: So the woman in the back, I suppose we could give her a name, but the woman in the background of this photo is not sitting in that chair all day long while she works?
LYNN ZIGMUNT: Correct.
MR. BUTING: Okay. Now, the cardboard box that we were looking at, Exhibit 468, has the pleadings and the docket minutes, at least in this instance they are sitting right on top, right?
LYNN ZIGMUNT: Right.
MR. BUTING: So it wouldn't be very difficult for someone to know that this particular file or box is the Steven Avery case, would it?
LYNN ZIGMUNT: I guess if you looked at it, I mean, you would have to -- in that condition of the box that one day, I mean, and when people go through it, it doesn't necessarily end up back in that same condition. And I think when it was kept over on the side filing cabinet, I tried to level things out to, so the cover -- the flaps could come over, because I didn't think that was a very secure ...
MR. BUTING: Sure. But there is that -- see that foam board exhibit in the background?
LYNN ZIGMUNT: Right. And that would probably stick out no matter where --
MR. BUTING: Yes.
LYNN ZIGMUNT: -- because it was too big for the box.
MR. BUTING: So the box wouldn't close?
LYNN ZIGMUNT: Right.
MR. BUTING: Okay. No matter what you did. All right. Now, would it be fair to say that the presence of sheriffs deputies inside the interior part of that Clerk's Office, it's not that unusual an event, right? In the normal course of your business?
LYNN ZIGMUNT: To have sheriffs deputies in our office?
MR. FALLON: Objection, relevance as asked.
MR. BUTING: Well, it's entirely relevant.
THE COURT: What is the objection?
MR. FALLON: Relevance as to the phrasing of that particular question, vis-a-vis the pre-trial court rules.
THE COURT: Well, it could be laid as a foundational question, so I will allow it for that purpose.
MR. BUTING: Thank you.
MR. BUTING: (By Attorney Buting)~ Do you understand my question?
LYNN ZIGMUNT: If you would like to just repeat it.
MR. BUTING: Sure. Okay. You know that door that you showed us, the photograph that has the little, you know, lock combination?
LYNN ZIGMUNT: Yes.
MR. BUTING: When you go through that door, you go into the inner office of the Clerk's Office, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: And in that area, it's not unusual to see sheriffs deputies during the normal course of business, is it?
LYNN ZIGMUNT: The only sheriffs deputies that would be normally in our office would be probably the sheriffs bailiffs that are posted in the courthouse for security reasons. And they --
MR. BUTING: Right.
LYNN ZIGMUNT: -- go occasionally.
MR. BUTING: In fact, they are in there every day picking up files or returning files from court, right?
LYNN ZIGMUNT: Yeah, they are in their frequently.
MR. BUTING: Okay. And, similarly, drug unit -- officers who are assigned to drug units, at various times, are back in that area because they are dealing with search warrants and filing and returns and all that as well, right?
LYNN ZIGMUNT: They could have access -- I mean, they don't have access -- they don't have the code to get in. They would have to be buzzed in.
MR. BUTING: I'm sorry. My question is, whether it's unusual to see them in that area. Wouldn't be an unusual event to take note of --
LYNN ZIGMUNT: Correct.
MR. BUTING: -- in your mind, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: And that would be true of your deputy clerks as well, right? Maybe more so than you, even?
LYNN ZIGMUNT: True of the deputy clerks, what do you mean --
MR. BUTING: Seeing a --
LYNN ZIGMUNT: -- that they would see them?
MR. BUTING: Seeing a sheriffs department employee in that area was not such an unusual event that it would make someone take note in their mind, hey, what's going on here, would it?
LYNN ZIGMUNT: Correct.
MR. FALLON: Speculation, foundation for this witness, ask the answer be stricken.
THE COURT: No, I will allow it.
MR. BUTING: (By Attorney Buting)~ And on occasion even, sheriff's employees may be coming into the interior of the office, like attorneys, going through files, while they are investigating an old file. I'm sorry, looking at an old file in the course of their investigation in a new case, right?
LYNN ZIGMUNT: So your question is, an attorney?
MR. BUTING: No. Badly phrased. Let me retry it. Sheriff's employees, sheriff's deputies, also on occasion are in that back area, the inner area of your Clerk's Office, looking at one case file perhaps as part of their investigation on somebody in another case, right?
LYNN ZIGMUNT: I guess I can't really say. I don't know that they would be looking at a file there. I mean, if anybody requests to look at a file, it's usually done over the counter. I don't know that it's ...
MR. BUTING: All right. But you don't --
LYNN ZIGMUNT: I mean, right, I can't say with 100 percent certainty, what they are doing, because you're usually dealing with the deputy clerks like of a specific unit.
MR. BUTING: That's right. And you are usually back in your office and they are dealing with a number of different clerks, deputy clerks?
LYNN ZIGMUNT: Correct.
MR. BUTING: Now, in addition, the Sheriff's Department has access to the Clerk's Office with master keys; isn't that right?
LYNN ZIGMUNT: The security bailiffs would.
MR. BUTING: Okay. Do you know a list, do you know every -- Well, let me go back for a second. Do you know that the Sheriff's Department is responsible for the security of the whole courthouse facility?
LYNN ZIGMUNT: Yes.
MR. BUTING: And that if there's a fire or something, after hours, they have to have access, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: Both to the courthouse and to all of the rooms within the courthouse, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: And there are a number of master keys that are issued by somebody from Manitowoc County to give to people who are allowed to have this kind of access right?
LYNN ZIGMUNT: I would imagine, I don't know specifically.
MR. BUTING: Sure. You don't know who, but you know generally that's the case, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: If you have a master key to get through that doorway, you don't need the separate combination lock, right?
LYNN ZIGMUNT: I wasn't aware of that before, but during the investigation when the keys were, you know, when it was being questioned, it did come to my knowledge that the key could be used to gain access to that door.
MR. BUTING: Sure. The whole idea of a master key, it wouldn't do much good if they turned the lock, but then you couldn't get past because you have got to have the combination, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: So, the way it is set up -- at least the way it was set up in the fall of 2005 was, a master key would allow entry to the inner part of the Clerk's Office.
LYNN ZIGMUNT: I guess so.
MR. BUTING: Okay. And that would include after hours, on weekends, or in the evenings, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: Okay. Now, Mr. -- Mr. Fallon asked you on direct if you recalled seeing Sergeant Colborn or Lieutenant Lenk in that inner area of the Clerk's Office; do you recall that question?
LYNN ZIGMUNT: Yes.
MR. BUTING: That question was never put to you until some time in late December or early January, 2006 and 2007, correct?
LYNN ZIGMUNT: I believe that's probably correct.
MR. BUTING: Okay. So nobody asked you about whether you could recall seeing Lieutenant Lenk or Sergeant Colborn until about 14 or 15 months after the Teresa Halbach disappearance, right?
LYNN ZIGMUNT: I guess. Yes.
MR. BUTING: Okay. So between November of 2005 and December of 2006, no investigating officers in this case came to you and said, hey, has anybody come to look at the 1985 court file, right?
LYNN ZIGMUNT: I don't think so, I think it was pretty much just when all the investigation was going on, like you said, late November, December.
MR. BUTING: Well, let's get clear here, because your answer isn't, I'm sorry. All the investigation going on you are talking about, is all the investigation that started once the blood vial was discovered there, right?
LYNN ZIGMUNT: Right, I believe when the special investigator that was assigned.
MR. BUTING: Mr. Fassbender?
LYNN ZIGMUNT: Right.
MR. BUTING: Okay.
LYNN ZIGMUNT: I guess I don't have a specific date, though. I mean, I didn't mark it down for any reason, so.
MR. BUTING: We're talking generally here, okay. I'm going to get to some pictures with you in just a minute. But after we, the defense, filed a motion in December, someone in your office took that white box that we looked at, from the exhibit, out of the court file and locked it in the safe for security, right?
LYNN ZIGMUNT: I believe it was done pursuant to an order of the Court.
MR. BUTING: And that was in December of 2006, right?
LYNN ZIGMUNT: Okay.
MR. BUTING: Okay. Do you agree?
LYNN ZIGMUNT: I agree. I don't have certainty. I mean, I don't -- I mean, to the time frame, it would be the approximate time.
MR. BUTING: Okay.
LYNN ZIGMUNT: But I don't have anything to verify that.
MR. BUTING: Sure. And shortly thereafter, a week or so later, the attorneys all came to your office and we, with the Court's permission, opened that safe and opened the box; do you recall that?
LYNN ZIGMUNT: Correct.
MR. BUTING: And we -- Do you recall we videotaped it and took photographs?
LYNN ZIGMUNT: Yes.
MR. BUTING: Sort of at various stages, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: Okay. Bear with me just one second, I'm going to play an excerpt of that videotape. I think counsel has no objection?
MR. FALLON: Not as long as it's played as represented --
MR. BUTING: Sure, no audio.
(Court reporter couldn't hear.)
MR. FALLON: As represented, no audio. We'll stipulate to the fact that counsel indicated that it's a 10 minute version of a 33 minute event. Is it marked as an exhibit?
MR. BUTING: We'll mark it right after this. I'm going to have it marked as an exhibit.
MR. FALLON: Very well.
MR. BUTING: If you want to reserve the next number, this will be a DVD of excerpts of.
MR. BUTING: Just so we're clear, you recall the date was December 14 of 2006?
LYNN ZIGMUNT: Yes.
MR. BUTING: Okay. And what I would like you to do is to watch this and then just tell us afterwards if this, in fact, comports with your recollection of what this box and it's contents looked like at various stages as it's opened. Okay.
(DVD playing.)
MR. BUTING: Now, stop for one second. At this point this is a closer up version of one of the exhibits that you have in front of you, Exhibit 451. This shows the end of the box secured as it was when we looked at it on December 14th, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: And from this you can tell -- I mean you are familiar with the way the exhibits are typically sealed with red evidence tape, or white evidence tape or whatever, right?
LYNN ZIGMUNT: Correct.
MR. BUTING: And it's pretty clear to you even at this stage that that evidence tape seal had been opened and the box reclosed just with that little piece of scotch tape, correct?
LYNN ZIGMUNT: Correct.
(DVD playing.)
MR. BUTING: All right. Let's go on. We're looking at the handwriting that was on the outside of the box that you referred to earlier?
LYNN ZIGMUNT: Correct.
MR. BUTING: And this is actually taking place in your personal office, right?
LYNN ZIGMUNT: Right.
MR. BUTING: There's a label with a date of January 4, 1996?
LYNN ZIGMUNT: Yes.
MR. BUTING: Is that Mr. Wiegert there, putting on some gloves?
LYNN ZIGMUNT: Yes.
MR. BUTING: And just so the jury is clear, you earlier referred to this whole container as a styrofoam box, but there's actually -- it's a cardboard box that contains a styrofoam box within it, correct?
LYNN ZIGMUNT: That's correct.
MR. BUTING: And as we see it right now, that evidence seal on the card -- on the inner styrofoam box appears to be secure from this angle, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: Now, Mr. Wiegert is removing the styrofoam box and we're getting a closeup view of the other side of the styrofoam box and that seal appears to be open, does it not?
LYNN ZIGMUNT: I believe so.
MR. FALLON: Could I make an observation, it might be best to let the exhibit speak for itself. I think further viewing will establish several points.
THE COURT: The Court agrees, I don't believe the witness has any specialized knowledge in this regard.
(DVD playing.)
THE COURT: Mr. Buting, if at any point you want to stop the tape and point out something to the jury that's on there, you may.
MR. BUTING: Okay. Thank you, Judge.
MR. BUTING: (By Attorney Buting)~ Now, just so we're clear, you were actually in your office as we were doing this as well, right?
LYNN ZIGMUNT: Yes.
MR. BUTING: So you saw us videotaping this?
LYNN ZIGMUNT: Yes.
MR. BUTING: Okay. Keep going.
(DVD playing.)
MR. BUTING: The parties are sort of rocking this gently, this tube of blood back and forth, gently; were you able to determine if it looked liquid inside there, from where you were at.
LYNN ZIGMUNT: I couldn't see it from where I was.
(DVD playing).
MR. BUTING: (By Attorney Buting)~ Just so the record is clear, there is no kind of evidence seal or tape around the top, the lavender top to that tube, is there?
LYNN ZIGMUNT: It didn't look like there was.
MR. BUTING: Okay. All right. So does that video excerpt of the events on December 14, 2006, purport with your recollection of what happened when we opened that box?
LYNN ZIGMUNT: Yes.
MR. BUTING: Thank you. I have no further questions. We'll mark this as an exhibit now.
THE COURT: And the number of that exhibit is?
(Exhibit 470 marked for identification.)
COURT CLERK: 470.
THE COURT: 470.
MR. BUTING: And that's a DVD of what we just viewed in court.
THE COURT: Correct. Mr. Fallon, any redirect?
MR. FALLON: Just one moment, I might have a question or two.
REDIRECT EXAMINATION BY ATTORNEY FALLON:
MR. FALLON: To your knowledge, Ms Zigmunt, the only sheriff's deputies that have a key that permits access to the inner office of the Clerk of Courts are the two bailiffs?
MR. BUTING: Objection, calls for speculation, unless she knows.
THE COURT: The question should be preceded with a foundational question to determine if she knows.
MR. FALLON: (By Attorney Fallon)~ Let's go about it this way. You -- In your cross-examination, you were asked, it was not usual to have the sheriff deputies in the inner office area and you responded, yes, just the bailiffs, explain why you answered it in that regard.
LYNN ZIGMUNT: Because the bailiffs are pretty commonly seen in the office. They come and go with different reports or different things during the day. Sometimes they are in the office before I get there in the morning. I'm usually one of the first people in the office and one of them might be in the office delivering or picking up. They have a pickup place for papers everyday. So it's not uncommon to see them at any time, really.
MR. FALLON: All right. And do they have a key that permits access to the inner office?
LYNN ZIGMUNT: They must have a key. I mean, I guess I really never looked to see if they were using the code. And they would have to have a key, because if they get there before I do, you would need a key to get in the outside door of the office.
MR. FALLON: Are they permitted the cipher lock code as well?
LYNN ZIGMUNT: I know when we changed the codes, because I changed it like January of '06. We changed to a new code from the previous Clerk of Court, just for some security measures. And I did provide them with that access code at that time.
MR. FALLON: Now, to your knowledge, did you provide that access code to any other member of the sheriff's department, other than the bailiffs?
LYNN ZIGMUNT: No.
MR. FALLON: And I believe you also answered a question on cross-examination, that perhaps on occasion other deputies are in the inner office area, from time to time; did I understand that correctly?
LYNN ZIGMUNT: There could be someone that had business with one of the clerks. They would have to be buzzed in. They wouldn't have automatic access, someone would have to allow them. Like that doorbell little device thing, we have some of those under the desks at the -- the counter clerks have those and they press that to open the door for ...
MR. FALLON: So do I understand it correctly, then, that they would be buzzed in and they would be attended to by one of your clerks?
LYNN ZIGMUNT: Right. If they had -- I mean, a lot of times, too, if they come in, I mean, we take care of them over the counter. I mean, I don't really know what the different business is that they would have to come in for, but occasionally they would ask -- like if they asked to see Janet or something and then if someone determined that she is there, they would buzz her -- buzz them in and they could just go to her desk.
MR. FALLON: That's all we have. Thank you.
THE COURT: Anything else Mr. Buting?
MR. BUTING: Just very quick.
RECROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: You mentioned how if they would ask to see Janet or some other deputy, they would be buzzed in and then the sheriff's department employee would then be in the inner area, right?
LYNN ZIGMUNT: Right. I mean, I don't know specifically that any sheriff's department...
MR. BUTING: I understand that. I'm just saying, just general common practice, would be if one of the sheriff's officers, employees, lieutenants, whoever, asked to see somebody, they would be buzzed in and they could go in back and talk to the clerk or deputy clerk, or whomever, correct?
LYNN ZIGMUNT: Correct.
MR. BUTING: And, then, once back in that area, they would have -- would have had in, let's say October, November, 2005, they would have been in the area where Mr. Avery's file could be accessed, right?
LYNN ZIGMUNT: Well, going to Janet's area would not. I mean, they would be turning the corner right away, where his file was kept was straight ahead and a little out of the way. So I don't think that they would have --
MR. BUTING: Well, there's no --
LYNN ZIGMUNT: -- come in contact with that file at all.
MR. BUTING: There was no other door in between where they would be and where Mr. Avery's file was kept, right?
LYNN ZIGMUNT: There was quite a distance from it. I don't ...
MR. BUTING: Well, we saw on the photograph, approximately?
LYNN ZIGMUNT: Well, that was when it was on the desk, though, in the desk for the viewing area. That isn't where it was normally kept. It was kept on a filing cabinet, although, further away yet. So it was really --
MR. BUTING: 10 feet from the door maybe, 15 feet?
LYNN ZIGMUNT: Maybe 20 feet from the door.
MR. BUTING: Okay. All right.
LYNN ZIGMUNT: 25, I don't know.
MR. BUTING: Sure. The point being, though, once you get past that door, where you are buzzed in, it's all open with partitions in the inner area of the Clerk's Office?
LYNN ZIGMUNT: Right.
MR. BUTING: And I'm not trying to put blame on you, ma'am. But I understand that in November of 2005, it was not on your radar, you were not worried about an officer from the sheriff's department coming in and removing a court exhibit to plant evidence and frame somebody, was it?
MR. FALLON: Objection, beyond the scope.
THE COURT: Sustained.
MR. BUTING: That's all.
THE COURT: All right. The witness is excused. And, members of the jury, we'll take a stretch break before the State calls its next witness. All right. We'll take a short break, five minutes, and then come back.
(Jury not present.)
THE COURT: You may be seated.
MR. KRATZ: Thank you, Judge. As we alerted the Court before the start of today's proceeding, the State does anticipate calling Dr. Marc LeBeau to testify. Mr. Buting was kind enough on cross-examination to have showed the jury the blood vial, purple-topped blood vial tube, which the State believes entitles us to call Dr. LeBeau at this time.
We had assured the defense that Investigator Wiegert was going to testify, and he is, but that's just as to the packaging of the purple-topped blood vial and sending it to Dr. LeBeau. We would prefer to call Dr. LeBeau so that his direct examination and his cross examination can be completed before he goes back to Virginia today.
If the defense still wishes us to call Investigator Wiegert at this time, we had also assured the defense and the Court that we would recall him neither for cross-examination or continued cross on matters outside of the limited purpose of packaging the blood.
So we're just looking for direction from the Court. We would prefer, since the vial has already been showed to the jury, to start with the Dr. LeBeau and complete his testimony and then call Investigator Wiegert. And if there's other foundational witnesses, that may be necessary. If there's an issue, or if the Court believes that somehow to be an inappropriate use of resources, or the presentation of evidence, then we can certainly do it the other way as well.
THE COURT: Mr. Buting.
MR. BUTING: Could I have just one moment with counsel, please.
THE COURT: Go ahead.
MR. BUTING: Judge, I'm going to -- We can defer Investigator Wiegert's testimony until after Mr. LeBeau, but I am marking four other exhibits which are essentially hard copies of what we just saw. And by stipulation -- I was going to use Investigator Wiegert to introduce those, but we can just, by stipulation, introduce them and proceed with Mr. LeBeau, if that's what counsel prefers.
MR. KRATZ: That's fine. 471, start with, Janet?
COURT CLERK: Yes.
MR. BUTING: And then I will be moving all the exhibits that I introduced which is 466 -- 468. Well, let's let her mark them first.
(Exhibit Nos. 471-474 marked for identification.)
MR. BUTING: Okay. So it will be 468 through 474. Is that all right, counsel?
MR. KRATZ: Just so I can see them.
MR. BUTING: Okay. So then I would move 468 through 474.
MR. KRATZ: Is that a different photo than 451? Janet, can you look at 451 and see if 474 is different.
THE COURT: Let's go off the record for a couple minutes here. Counsel, are you ready to go back?
MR. BUTING: I am, Mr. Gahn is still checking for something.
THE COURT: All right. I believe that -- We'll go back on the record at this time. Additional exhibits have been marked, those are numbers what?
COURT CLERK: 471 through 474.
THE COURT: 471 through 474. Are the parties asking that they be admitted at this time?
MR. BUTING: 468 through 471, actually, is what I'm asking to be moved.
THE COURT: 468 through 471.
MR. BUTING: Yes.
THE COURT: Any objection from State?
MR. KRATZ: They are eventually going to get in, Judge, we have no objection at this time.
THE COURT: All right. Those are admitted. Anything else before we bring the jurors back in?
MR. BUTING: No.
THE COURT: If not, we'll bring the jury in at this time.
(Jury present.)
THE COURT: You may be seated. At this time the State may call it's next witness.