3.Renewed Fair-Forensic-Testing Motion

MR. BUTING: Um -- All right. Thank you, Judge. This motion, although I don't mean to make it sound this way, really is kind of a, I told you so, because when we were here on March 17, I have the transcript, uh, that's when our motion for fair forensic testing was actually heard. We filed it earlier than that, a couple weeks earlier than that, and I predicted that what would happen is there would be contamination and there would be consumption of all of the evidence related thereto.

Because of that, I asked for one of two remedies, either that the defense expert be present to observe or that it be videotaped. The videotape remedy, had that been granted, probably wouldn't have made a difference other than we would have had a clearer record of how it would have been contaminated and we would have had a record of whether or not Ms. Culhane's explanation that she was just talking and somehow her saliva managed to find its way into a control was credible.

But had -- had our expert been there, um, when it became obvious, she probably would have talked to him and said, look at the bullet, it is such that I'm only going to be able to do it once, or that we're not going to be able to cut it in half. And an agreement might have been reached at that point of a way to -- to separate, once she puts the bullet into solution, to -- to divide that solution, buffer, I think she called it, in half, to preserve half for the defense.

At a minimum, she could have done that on her own by simply, uh, you know, cutting it in half, saving a buffer, running the first half of the buffer. If, at that point, she's not getting a high enough quantitation from that -- from that amount, then she might have had at least a better argument to say, okay, I got to use it all. I got to consume it all.

But, instead, she didn't. She just took it upon herself, knowing in her own mind, as she described, that this was probative evidence, she took it upon herself to, uh, wash the bullet in one buffer solution and to, uh, consume that in her test, leaving nothing left for independent testing.

Now, I pointed out that the, uh -- there's Arizona v. Youngblood and the Trombetta cases, also Arizona, I believe, United States Supreme Court decisions, are, uh -- talk about, um, the problem when there's a des -- a -- a destruction of evidence, and the Supreme Court had said, at any rate, that the -- the remedy of -- of suppression, or even, potentially, dismissal, is only available if the State acts in bad faith when they destroy potentially exculpatory evidence.

Um, that's, obviously, a pretty high burden. It has to be more than negligence, but I think that there's reasons to believe that we -- that there is bad faith here on the part of the State. And I say that for this reason: We asked -- made a reasonable request for fair forensic testing in this case. We did so explaining clearly on the record that this case was unusual because of the allegations that were made, before we even came into the case, by Mr. Avery that somebody was -- was planting evidence, messing around with the evidence, and that for that reason, this case deserved, warranted, required, a little different procedure to protect his rights, as well as the public's rights, to be sure that -- that, uh, process is properly being done.

The State resisted that, and did so while arguing that, uh, we don't have to worry about things like this. We have a fine Crime Lab. We have an accredited Crime Lab. Uh, we can't allow Mr., uh, Friedman, Dr. Friedman, or any defense expert, to be there while it's being tested because, by gosh, that could increase the chance of contamination. Well, what do we hear happened?

She -- Ms. Culhane introduces other people into the very process, herself, while she's doing a training program. Now, how, having a defense expert present, would increase -- greater increase the risk of contamination than doing that, I don't know.

Um, so while arguing on the one hand that defense experts shouldn't be allowed because it would increase the risk of contamination, Ms. Culhane then acts in a way that is directly contrary to that, and she's got at least two people, I don't recall how many trainees, I think she said two, um, which, obviously, should increase the risk even more than would have been had a defense expert been there. In addition, Mr. Gahn acknowledged that there are circumstances where, um -- when -- when it appeared that there might be complete consumption of a piece of evidence, where it is warranted for the State and the defense to -- to work on agreement that the defense expert is present when that's being done.

Um, Mr. Gahn has been a big champion of independent testing. And his -- his remedy for all of this was, don't worry, Judge, they can retest. They have an opportunity to retest that will protect, uh, an -- any outcome. Well, it doesn't work. I -- I told the Court back then that it -- that it does not work if the material's already contaminated.

And, here, she did testify that she had the extract that could have been retested, but that's clearly an insufficient remedy when the contamination, if at all, occurred, most likely, during the extract process anyway. So if it's contaminated at that point, then the extract, itself, is going to be contaminated. And the surest evidence of that, the surest evidence that simply retesting the extract would not be a sufficient remedy for the defense, is her own unit deviation request. I forget the actual exhibit number, but it's in the record.

And what she says is, under the proposed deviation, quote, normally the sample would be re-extracted, but in this case there is no sample to re-extract. According to our current protocol, this sample could only be used for exclusionary purposes. However, in this case, she then proposes the deviation of -- from protocol.

So if the existence of a remaining portion of the extract was sufficient to, uh -- if Mr. Gahn's going to argue that somehow we could test that, and that that would protect Mr. Avery's interests in the, um -- this crucial evidence, that totally undercut by her own admission that she can't extract anything else. She didn't retest the extract, herself, because she knew, as Mr. Gahn does, that that does not constitute independent testing. That's just the retesting of a contaminated, uh, product which will confirm the contamination that's already occurred.

Second, now, or finishing the second point, I believe it is, which is that Mr. Gahn says -- acknowledges that there are times when having the defense expert present is -- is warranted, and -- and those circumstances are when it appears that there's only one chance, one shot at the test, uh, we had that here. We had it here. He acknowledged it.

And, yet, his own agent of the State, the -- the Crime Lab analyst, um, clearly also recognized that this was going to be a one-shot deal and went ahead and did it, knowing that a month earlier we had filed a motion that the Court had ruled just two weeks earlier, because her test, as I recall, was going on around April 3, um, I believe the testimony was the bullet arrived -- bullet fragment arrived, I think, the day before our motion was decided, it was May -- March 16, and she was beginning the extract process the end of March and into the beginning of April, no call to the defense to say, hey, you were right, this is the situation where there's only one chance to test this evidence, would you like to have your -- your expert there, or would you -- is there some remedy or -- that you can propose? Nothing like -- of that sort was done.

Instead, they went ahead and consumed it deliberately knowing what this Court's ruling was as well, which I'll get to in a moment.

The, uh -- I also pointed out that one of the reasons for my motion was because the public was beginning to learn in other parts of the country that this sort of thing happened in crime labs. It had been kept under wraps for years. Finally, it was coming out, and I mentioned that there was 17 states now in which incidents had occurred, either fraudulence, mistakes, contamination, or all of the three, um, in crime labs in those states.

This Court, though, said -- Let me just find it in quote. This Court said, I will -- quote, I'll al -- I will -- I'm sorry. This is on page 43 of that transcript of March 17.

MR. BUTING: At the bottom of the last paragraph. Quote, I will also note that although there have been incidents of mistakes in other crime labs, and I think anytime you're dealing with human beings that's always a possibility, I'm not aware that our State Crime Lab has ever been involved in this type of thing.

Now, this is said in front of Mr. Gahn, it's on March 17, and we now know that at that moment the Crime Lab in Wisconsin had a re -- recorded history of contamination incidents going back for years.

The State did not disclose that to the Court, um, and I would, on that point, note, by the way, uh, there is -- there's been some inference that somehow, uh, the -- the discovery -- in fact, I think there was an argument that -- that -- at the hearing that the -- the defense is going to get all the bench notes, and lab notes, and the printouts, and -- and can have their own expert look at that, and if that's an adequate remedy -- The contamination log is not part of discovery in these cases. It was not received as part of the discovery request in this case. It was only received by me because I made a specific request when I had some information that, perhaps, a log of this sort was being kept.

The Crime Lab initially resisted, and then -- then -- then, initially, turned over a redacted copy that had lack -- blacked out all of the other case numbers so that, perhaps, they were afraid that it would get out and other defense attorneys in other cases would be able to see, hey, there was contamination on my case. Eventually, Mr. Gahn, to his credit, did prevail upon them to provide an un-redacted copy, and that's in the record now here.

But on March 17, when this Court was under the impression that our Crime Lab had no such history, the State did not correct the Court's misconception. Mr. Gahn either knew or should have known about that, or, when he then learned about it, perhaps he should have gone right back to the Crime Lab after hearing what the Court's, uh, belief was, and said, hey, is there any history of the -- of contamination that I need to know about that -- to correct the Court's misinterp -- impression. The State did not do that, and so this Court's ruling was based upon, uh, incorrect information withheld by the State.

The sum of all of these, uh, points, I think, constitutes bad faith sufficient under California v. Trombetta to warrant in the -- the, uh, suppression, or perhaps even greater remedy, uh, of the evidence that the State did consume -- And in this instance what I'm focusing on -- only focusing on here is Item FL, the bullet fragment from -- on which they claim Ms. Halbach's DNA was discovered during a test that was contaminated, uh, uh, clearly had a contaminated control, and by inference may also have been cross-contaminated, which is something that I pointed out.

So I would ask, first, the remedy that that be suppressed, that the jury be so-instructed. Alternatively, if the Court does not believe that it rises even to the level of bad faith to -- to require that kind of a remedy, certainly it rises to the -- to the level that this jury should be instructed of the three following things:

Number one, that the State resisted the defense attempts to be present during this test.

Number two, that the State totally consumed the bullet fragment evidence without any attempt to preserve a portion of it for independent defense testing.

And, number three, that the State withheld evidence that existed before the test of Item FL, that the Wisconsin Crime Lab had a recorded history of contamination incidents.

I don't know that this remedy would be adequate, and I'm asking for something greater, but I think at a minimum, uh, given the conduct of the State in this case, this Court should adopt that remedy at a minimum. Thank you.

MR. BUTING: The profile developed from the bullet fragment, Item FL, and the interior of the driver's door handle, Item IG, which isn't relevant here, but are consistent with the profile developed from the pap smear, Item EF, reportedly collected from Teresa Halbach. And it says, see laboratory reports, earlier ones.

The manipulation control extracted with the bullet fragment, Item FL, contains DNA that is consistent with this analyst.

And then it goes onto another, um -- you know, another item is tested. So...

MR. BUTING: The problem is, when -- when there's evid -- the -- the control is run along together in this little block we -- she sort of mention -- uh, demonstrated it, um, in these various little tubes, or whatever -- their -- their vials, or whatever they're called, they're all run together through this same instrument at that particular, uh, process.

The -- the sample -- the bullet that -- that gets extracted by, she said a -- a wash that she said that -- I mean, she said did consume, and one could reasonably expect would consume, whatever DNA was on there, is taking place on her lab bench. If she's capable of contaminating the control with her own, then that's evidence of cross-contamination right there.

She's also testified that at -- in that very same bench she's had Teresa Halbach's DNA, and that it's as reasonable an inference that she's able to cont -- cross-contaminate from that to the bullet fragment as it is that she contaminated her own on the control.

And it's for that reason that the protocol says, when you get a contaminated control, you throw it out, because you cannot assume that the evidence sample, itself, has not also been contaminated.

MR. BUTING: Okay. Had a defense expert been there, the very first step where she's analyzing the sample -- I recognize that -- that there's several different ways to get -- to test for DNA. Most of what she did, I think, here were -- were these cotton swabs, where there's a apparent stain, and then the swab is taken, and then it -- it absorbs whatever the substance is, and you can cut it and save a portion of the swab.

Um, but in a case like this, she chose not to do that. She chose not to swab it. So a defense expert would have said either we want you to -- to use a swab, like you did in every other test, swab the bullet and then cut and save half of it, or, if she really felt it was necessary to put it into this little buffer and -- and, uh, dissolve it that way, to preserve half of that ex -- that buffer before it gets done -- before anything else gets done with it so that that could be retested. More likely, it would have been do the swab.

If you've got the forceps to hold the -- the -- the bullet with a forceps, you take a swab, and you swab it around, and you get everything you can get, just like she did with the key and other items, then we would have half of that, uh, swab that would have been preserved for retesting. Instead, we only have extracts that have been, uh, potentially already contaminated.

Did that answer the Court's question?

MR. BUTING: Thank you. Um, the -- Counsel's right that there's sort of two different levels, um, that -- that a -- a Court engages in -- in -- under Trombetta, which is whether evidence is apparently exculpatory and destroyed versus when it's potentially exculpatory and destroyed.

I'm not out -- I'm not arguing the evidence was apparently exculpatory and was destroyed, because then it would be even easier. You don't have to show bad faith. Um, mo -- this case, like most, fall in the category where evidence is potentially exculpatory and then destroyed, and if you can show bad faith, then -- then the remedy is warranted.

Um, there's always an argument the State always says whenever they get a result that favors them, see, it would have been inculpatory. But there's no reason to think that the result would be potentially exculpatory because, look, we tested it, and it came back inculpatory.

But what -- what Mr. Gahn's ignoring here is, looking at all of the evidence as a whole, you have to consider how -- what's the likelihood of it being potentially exculpatory? There were two bullet fragments found. The other one did not have, um, Ms. Halbach's DNA found on it. So that's at least fifty-fifty that this one wouldn't either.

Secondly, of all of the other 180 or more items that she looked at and tested, none of them had Teresa Halbach's DNA on it. This was the only one. So if the odds are 1 out of 180 that this would be potentially inculpatory, it's obviously much more likely, in my view, if it had been properly tested and preserved for -- in a -- in a test, to have been shown to be exculpatory, not inculpatory.

Um, also, Mr. Gahn says is this process is -- would be burdensome and, um, the Crime Lab has a backlog, they -- they can't stop and call a defense expert every time they're in the middle of these tests. The Court's not being asked to make some sweeping decision that applies to every test. We're focused on Mr. Avery's case.

And the unique circumstances of Mr. Avery's case are that before this sample was consumed, we asked the Court for relief, and we put the State on notice, and despite that notice, the State, nevertheless, went ahead and consumed this cru -- this piece -- crucial piece of evidence.

Secondly, focusing directly on this case, Mr. Gahn said that she was testing a lot of items, and you can't tell until you go to the quantitation that there's even DNA. That's true. But what she also testified to was her personal knowledge that this particular item of evidence was probative in her view. It fit the -- the message that she'd gotten on the phone to try and put -- somehow put her into the house or the garage, and, indeed, she said the reason she applied for this deviation request, for the first and only time of her entire career, was because she knew that this was a probative piece of evidence.

So it's not like this was just some random 1 out of 180 pieces that may or may not have DNA. She knew ahead of time the potential value, and the -- and the importance of it.

The contamination log and -- and the comments that I made on the 17th were not limited, by the way, to scandals in the crime labs. What I said was, quote, on page 29, now 17 states, crime labs in 17 different states, have been found to either -- I'm sorry -- to have either had fraudulent behavior by one of the analysts, or erroneous test results, incompetence, everything, the entire spectrum of problems, that results in false tests.

That in some instances, in Kansas, for instance, resulted in the correct suspect being released, going out and committing another offense. And in other instances, innocent people being wrongly identified through DNA testing, and only later, fortuitously, was it determined that the mistake was made, closed quote.

This exhibit, 346, which is the contamination log from the Wisconsin State Crime Lab, shows serious instances way beyond just contamination of controls, and, in fact, on the -- it's -- it says page 7, but I think it's more than page 7 here, on a date of November 22, '05, Ms. Culhane, herself, admits that she had a contamination where there was a carryover of the sperm fraction into the manipulation control, and that the result of that was that the D.A. refused to proceed with charges, uh, and the case was closed. Now, we don't know whether that person was really guilty and got off because she screwed up, or whether the person was really innocent and -- and justice was served. But these kinds of mistakes, I don't care whether there's only 89 out of 50,000, they are important, and they deserve to have the -- the -- the light of transparency shined on them, shown on them, and that is what we were trying to do when we asked for this motion.

And so I think, in -- in total, when you look at all of what's happened, I think that there is bad faith for the ultimate remedy, or, at a minimum, for the alternative remedy that I've -- that I propose, or something similar to that. Thank you.