3.Hearing on Objections to Anonymous Letter
54 linesMR. FALLON: Your Honor, I would like to be heard on this, I think there's a hearsay objection and a relevance objection that need to be made.
THE COURT: The Court will excuse the jurors for a few minutes to hear the motion.
(Jury not present.)
THE COURT: You may be seated. Mr. Fallon.
MR. FALLON: Yes, Judge. If counsel is intending on displaying the actual cryptic letter here, which was the subject of a -- an attempted identification, which by the way was requested by the defense, I have reason to object on grounds of relevance, hearsay, lack of foundation, and what have you, with respect to an anonymous letter sent to the Sheriff's Department. So, I don't see any relevance primarily, but it is also hearsay and unidentified document.
THE COURT: The parties have the advantage of me because I don't know what the letter is.
MR. BUTING: Sure. Let me show it to the Court. Do we want to excuse the witness at all?
MR. FALLON: I don't see how that would make any difference.
MR. BUTING: Okay. I just wanted to bring it up. Well, Judge, the -- obviously the document isn't offered for the truth of the matter alleged in there, but it is -- it was brought up on direct. I think under cross I can examine the expert about his evaluation of the document. The timing of how and when it was submitted is actually already in the record. But it obviously goes to the fact that this was just found, if the Court recalls from an earlier witness, I believe, in the property room a whole year after it had been received and nothing had been done with it, goes to the investigative bias, tunnel vision argument we have been making for the last month. So for those reasons it's certainly relevant and obviously it's something that this witness -- this expert was asked to examine, so it's relevant in that regard as well.
MR. FALLON: Your Honor, if I may reply to that. The only reason this exhibit was introduced is because counsel brought it up on cross-examination of Investigator Fassbender, about two weeks ago. It doesn't have any particular relevance to this case whatsoever, other than it's another rule out, another exclusion.
And by the way, I would also point out that any attempt to discussion or display of the writings of the particular exhibit go to, I think are in violation of the Court's pre-trial ruling suggesting some other unknown culprit committed this particular offense. Again, it's an anonymous letter, unaccounted for. So it's of marginal relevance.
MR. BUTING: Judge, let me respond to that. It doesn't go to any -- it's not, if you are talking about third party liability, there is no name on that, nobody that's particularly being alleged. For all that matter, it could have been, you know, it could be arguing that the defendant did it. But the point of the matter is, it was a -- obviously, in our view, a very important tip that -- that may or may not have been acted on properly as part of their investigative bias. So that's the relevance.
THE COURT: Maybe the parties can refresh my memory, I have a vague recollection of the subject matter of the document; has the letter been introduced as an exhibit?
MR. FALLON: No, that's it. It was brought up in cross-examination of Special Agent Fassbender on the first Friday of this trial, I believe that is the 9th, if memory serves me. Again, it was all -- that was the point -- that was the time to cross-examine, if any.
MR. BUTING: Well, there was cross-examination.
MR. FALLON: And here -- here's the point, the probative value of showing that to the jury is minimal, at best. It's the confusion, waste of time, let's follow another dead end somewhere, is the whole point of that. The time for cross-examining, the time to make the point of investigative bias, which was attempted and arguably made or not, that's a subject for closing argument, was in the investigation and cross-examination of Special Agent Fassbender, when he said, well, we ruled it out, or we just heard testimony from Pevytoe, ruling it out.
MR. BUTING: Judge, first of all, how can it not be relevant when there is a letter that says the body was burned in the smelter at 3:00 a.m. on Friday morn. It can't be more relevant than what all the testimony we have heard about the body in this case and the whole question of whether it's location at Mr. Avery's -- behind Mr. Avery's garage, was its original location or not is central to this case and will continue to be central.
MR. FALLON: So, now he's arguing that it's offered for the truth of the matter as it affects the investigation?
MR. BUTING: No, but it's a tip that was not followed on by the law enforcement agents in this case because it did not fit their theory that the body was burned behind Mr. Avery's garage. And -- And the failure to do anything with this for a whole year, supports that defense.
MR. FALLON: Then let counsel make that argument in closing argument, based on the evidence its exhibited.
THE COURT: If -- If Mr. Fassbender -- And I have to say, this trial has now gone on long enough, I don't have all the previous testimony committed to memory. This letter was brought up to Mr. Fassbender when he was examined and he said, we didn't pursue it, is that --
MR. FALLON: He said they ruled it out because we had already ruled out the smelter as having any part of this particular case.
THE COURT: Okay.
MR. FALLON: He's already got the evidence in to make the argument he wants to make.
MR. BUTING: No, because the -- I don't know if we do or not, but I don't recall the exact testimony myself right now. But, look, just because they ruled it out, doesn't mean it's no longer relevant. That's a central part of this trial. That's a matter that the jury can decide, whether or not this is just another piece of the puzzle that, if we're going to use their analogy, a piece of the puzzle that shows, time and time again, they ignore anything that doesn't fit the State's theory.
MR. FALLON: Are we now going to hear testimony that the smelter was the source of combustion of the remains of Teresa Halbach from, presumably, Dr. Fairgrieve. We would certainly like to know that. And I --
MR. BUTING: You have seen his report.
MR. FALLON: Well, counsel, we have seen no report from Dr. Fairgrieve. We have seen a rendition of what he might or might not say.
MR. BUTING: I'm sorry, that's what I meant, you have seen a summary of what he says, and the smelter is mentioned.
THE COURT: Maybe you can help me out, what's he going to say?
MR. BUTING: I don't want to repeat at this point, it's in the Court's file. I can't restate it better than what we did in our summary. But there are -- the evidence is clear that there are multiple burn sites on that Avery property alone, not to mention other sites outside of that property. This was not reasonably considered. This was dismissed as a possible site, despite the fact that they are getting anonymous tips about it. And more than anonymous tips that we haven't heard about yet.
But, again, it shows investigative bias. And it's clearly within the scope of direct. He was asked about a letter that he -- that was sent to the Manitowoc County Sheriff's Office and that he did fingerprints on. If they didn't want it in, it should never have been brought out. Now the jury hears there's some letter, who knows what it is.
MR. FALLON: Well, counsel, then you shouldn't have asked the question on cross-examination of Agent Fassbender, over objection of the State.
MR. BUTING: Well, we wanted it, you're the ones that don't.
MR. FALLON: Obviously they want it, Judge, because they want to use it for this truth of the matter asserted.
MR. BUTING: No.
THE COURT: All right. Here's my ruling. To the extent that the -- and I'm basing this, I guess, on the recollection of the testimony the parties are providing me. To the extent -- First of all with respect to the letter itself, it's not admissible for the truth of the matter asserted, but I believe I did admiss -- admit it for the purpose which I understand -- or not admit the letter, but allow the question about it, not for the truth of the matter asserted, but based on the proposition advanced by the defense, which was that it was an example of a lead that the State chose not to follow.
The State has its own -- gave its own explanation, I believe, for it, if I'm understanding you correctly, Mr. Fallon. Again, I don't remember Mr. Fassbender's explanation, but both parties are telling me that this came in and that it was the subject of questioning of Mr. Fassbender.
MR. FALLON: Correct.
THE COURT: To the extent that point has gotten in, that point has already been made. Since Fassbender indicated it was not pursued of necessity, the State didn't choose to send it to this witness, and I'm not sure what -- what would be added at this point by admitting it. Because to put it up on the screen now raises the danger that the jury will take it for the truth of the matter asserted.
MR. BUTING: Judge, it's been talked about. Now, the witness, on direct, was told that he looked at a letter, the jury doesn't know what it is, they brought it up, it's left hanging there, the jury is going to, if anything, speculate about what that letter is, whether it somehow relates to Mr. Avery or not. And the fact his report shows that it was a whole year until this was even sent to be examined.
THE COURT: All right. This is a fingerprint expert.
MR. BUTING: I understand.
THE COURT: As I understand this report, he didn't find any usable fingerprints on the letter, so what -- what is his testimony going to add to the point that the Court has already been allowed to be made with respect during Ms Fassbender's testimony.
MR. BUTING: I don't recall that we have gotten the details out in Mr. Fassbender's testimony. He didn't -- As I recall, he didn't admit that he had even seen it. This witness has seen it. He said, I think he indicated that he didn't recognize it, didn't know what it was, other than the defense wanted it sent for fingerprints a year after the arrest of Mr. Avery, when we found it in the property room.
THE COURT: Well, if there's a theory for the defense to get this letter in, it may -- there may be a way to get it in through another witness, but this is a fingerprint expert. The only testimony he would have to offer is that he didn't find any fingerprints on the document and I don't think this is an appropriate way to get the document in.
MR. BUTING: All right. Then, for this purposes then, I would like to just finish with him on this point, and let the jury know that when he received the letter, at least establish the date, that it was not until December of '06. We're not showing it, we'll work on the other issue later.
THE COURT: All right. I'm not sure I understand what you are looking to do.
MR. BUTING: Finish up my questioning on this issue, with him, by pointing out this letter, without showing it, was not sent to him until December of '06.
THE COURT: Okay. So, in front of the jury, that a letter was sent to him. You can identify this as a handwritten letter dated whatever, or whenever it was received. Any objection from the State?
MR. FALLON: If he wants to have it identified as the letter examined with respect to his December 5th report, that's fine.
THE COURT: Very well. That's permissible.
MR. BUTING: All right.
THE COURT: The jurors can be brought back in. You may be seated.
(Jury present.)
THE COURT: Mr. Buting, you may proceed.
MR. BUTING: Sure.