1.Defense Motion to Preserve Blood Evidence
35 linesTHE COURT: At this time the Court calls the State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. We're here this morning for a continuation of the trial in this matter. We are outside of the presence of the jury at this time. Will the parties state their appearances for the record.
MR. KRATZ: Good morning, Judge, the State appears by Special Prosecutors Ken Kratz, Tom Fallon, and Norm Gahn.
MR. STRANG: And good morning, Steven Avery in person; Jerome Buting and Dean Strang on his behalf.
THE COURT: All right. Counsel, I understand that the parties have something to take up outside the presence of the jury.
MR. STRANG: The defense has a brief motion, your Honor, in light of the Court's rulings at the end of the day yesterday. The defense all along has been consistent in contending that there were no reliable tests that can be done that would be useful to the jury on the dried bloodstains in the Toyota, or the blood vial in the Clerk's Office. The Court ruled as it did, yesterday, leaving reliability to the jury and ruling the State's tests performed during this trial otherwise admissible under Walstad.
That will not allow -- It's no surprise, as we said all along, that will not allow any rebuttal testing or independent testing that might be offered to rebut the State's testing now that the State has chosen to pursue that and the Court has allowed that testing, regardless of it's reliability. So I have a two prong motion to preserve Mr. Avery's rights and options.
First, I would like the Court to order that all samples remaining of swabs, or the dried bloodstains themselves in the Toyota RAV4, be preserved indefinitely and not destroyed or damaged, absent further Court order on application by the State with notice to Mr. Avery and whoever his counsel may be.
And, as well, that the blood vial from the Clerk's Office be preserved, not damaged or destroyed in any way, absent express further Court order on application by the State with notice to Mr. Avery and counsel, so that we preserve the ability to test, if and when science advances to the point of allowing some reliable testing or just rebuttal testing by the defense.
Second, I would like the Court to enter an order now that the defense will have access to the swabs from the Toyota. And when I say swabs from the Toyota, I'm referring both to swabs of the dried bloodstains and the control swabs that were taken for purposes of the FBI testing to which Dr. LeBeau has testified, as well as the dried bloodstains themselves, all the dried bloodstains in the Toyota attributed to Mr. Avery, and the blood vial from the Clerk's Office.
I would like the Court to order now that, without further application, the defense may conduct independent testing of any or all of those materials at any time, from today through trial. If there's a conviction, post-conviction, in the appellate process or after the appellate process, I would like the ability to do that testing when it reasonably becomes available to Mr. Avery to do it, as a matter of science and finances, regardless of when that may happen; it won't happen during the trial, so I'm just looking ahead.
Of course, if he's a acquitted, everyone will lose interest in testing. But if he's convicted of any of the charges, this evidence that the State contends is so material to guilt or innocence, will retain its materiality to guilt or innocence. And I would like the Court to order that Mr. Avery, or his counsel, have access to that, without further order of the Court, for testing, at any time.
THE COURT: Who will be speaking for the State?
THE COURT: Mr. Gahn.
THE COURT: All right. Just as a practical matter, and I'm testing my memory here a bit, I thought that the samples from the RAV4 were already split, such that in order to enable both parties to conduct testing if they wished.
I'm wondering, if the Court is going to issue an order that samples be preserved, I guess rather than leave it that broad, I would like to know where they are now, and perhaps the order should reflect how they should be preserved or where they should be preserved.
MR. GAHN: My understanding is that the samples from the RAV4 that were submitted to EDTA testing, which would have been, A-8, the swab from the dashboard; A-10, the swab from the CD case in Teresa Halbach's car; and, A-12, which was the bloodstain swab from the metal on the rear passenger door entry, that Mr. Buting requested that the FBI preserve one half of each of those samples for independent testing.
That has been done. One half of those swabs are preserved. Also, Mr. Buting requested that the controls that were taken also be -- that the FBI only consume one half of those, and that is the case. So one half of the controls are available.
As far as the other swabs which were taken by Sherry Culhane, those are in the control now of the Calumet County Sheriff's Department. And those also are available to the defense. And one half of the A-10, A-12, and A-8 have been returned by the FBI and they are in the control of the Calumet County Sheriff's Department.
THE COURT: All right. So the understanding is that these items are going to be retained at the Calumet County Sheriff's Department, that's where they are going to be if they are needed?
MR. STRANG: That's very helpful. What it leaves uncovered, or that we haven't covered here, are the dried bloodstains themselves, as there were stain areas for which swabs were not sent to the FBI, if I understood Mr. LeBeau's testimony correctly, and then the blood vial. And so we just need to know what arm of the State, what agency of the State is preserving all of those.
THE COURT: All right. So, Mr. Gahn, when you say swabs, you mean samples taken from these areas.
THE COURT: Was the part of the vehicle with the stain on the dash removed from the vehicle, or is the dash still intact with the vehicle, wherever it is?
MR. GAHN: The dash is still intact with the vehicle, and the vehicle is here on the Calumet County grounds.
THE COURT: Is that going to be saved or?
THE COURT: Let me ask first, what has the defense requested; are the swabs enough?
MR. STRANG: No, I think the stains have to be preserved. And I suppose the issue, then, is other -- other control areas for testing. So it would be, I guess, useful to know what the plans are with the Toyota.
THE COURT: Well, let's do this, there's no dispute between the parties that the swabs should be saved. As far as the details of the Court's order, that could be addressed, if there is a conviction in this case. And perhaps between this time and that time, should the need arise, the parties could discuss whether or not they might come to a joint agreement on how to preserve samples.
I mean, the CD case is small enough, that can be preserved. The dash and the door frame, I don't know if the vehicle will be preserved forever, but perhaps the parts could be removed if it would be determined to be necessary. I'm not sure.
MR. GAHN: I think what the Court is suggesting is a prudent course. Let's wait until these proceedings are over, because Wisconsin does have a mandatory preservation statute that would be applicable in this case. And it would make more sense to address this under that statute, after the proceedings are completed.
THE COURT: I think any order should probably include, not only the fact that the samples would be preserved, but a bit more specificity as to how they would be preserved. And both parties may want to be heard on that or you may come to an agreement with a joint recommendation to the Court.
MR. STRANG: I'm only in partial agreement with Mr. Gahn. I do want an order now, at least all the control swabs and the swabs of bloodstains be preserved, and the blood vial. And I have not heard yet where the blood vial is, or the remaining part of the blood vial is.
THE COURT: Is that where it is now?
THE COURT: Oh.
MR. GAHN: And let me also say that some of the stains that Ms Culhane, from the Crime Lab, tested, those stains and swabs are in the court record here as exhibits.
THE COURT: What if we handle it this way, the defense can prepare an order to order that all these items be preserved now. I understand that to be not in dispute with the State. And the order can provide that the manner of preservation will be determined following the conclusion of the trial. Does that work for both parties?
MR. STRANG: Sure, I think so. And we'll have no objection to things like the blood vial and the swabs being withdrawn from evidence for purposes of preservation by the State.
THE COURT: All right. Is that sufficient detail for you to prepare a proposed order, Mr. Strang?
MR. STRANG: Yes.