1.Objections and Rulings on the Defense Opening Statement
13 linesTHE COURT: At this time the Court calls State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. Will the parties state their appearances for the record, please.
MR. KRATZ: State appears by Calumet County District Attorney Ken Kratz and Assistant Attorney General Tom Fallon, appearing as special prosecutors.
MR. STRANG: Steven Avery is here in person. Jerome Buting and Dean Strang on his behalf.
THE COURT: Very well, we are outside the presence of the jury at this time. It is my understanding the State has a matter it wishes to bring up before we bring the jurors in.
MR. KRATZ: There are several matters, Judge. One of them is addressing an area of stipulations, but the other issue is making a record and expressing our concern regarding Mr. Strang's
opening statement. On three different occasions in Mr. Strang's opening statement we believe that Mr. Strang either announced the introduction of what would otherwise be inadmissible testimony or either overtly, or at least mistakenly, violated previous rulings of this Court. First, Judge, was on the area of third party liability. This Court had previously excluded any mention of a possible third person, pursuant to the Denny analysis that the Court announced in its ruling, other than that of Brendan Dassey. During Mr. Strang's opening statement, Mr. Strang asked the jury to consider the fact that somebody saw Ms Halbach after she left the Avery property on the 31st of October. Mr. Strang had even discussed that she may have been taking some other photos and may have made another stop, but invited the jury to believe that somebody had seen the victim and, at least by inference, that somebody else was involved in taking the life of Teresa Halbach; again, contrary to the Court's ruling as to third party liability. I do not intend to raise objection and ask for a curative instruction with the jury, but should there be testimony, certainly elicited to that fact, the State would be issuing objection. And if Mr. Strang would like to respond, that's fine, but I would ask the Court reiterate its ruling prohibiting any evidence of third party liability other than that of Mr. Dassey.
THE COURT: All right. Before I hear from Mr. Strang, do I understand there were a couple other items?
MR. KRATZ: There were, Judge. The State also -- excuse me -- The Court, also, in pretrial rulings, dealt with the issue of bias of witnesses, especially as it related to Manitowoc County Sheriff's deputies. That bias that the defense had, in a pre-trial posture, attempted to elicit, was something that they referred to as institutional bias; that is, a bias that could be attributed to the entire department or every member of the Manitowoc County Sheriff's Department, irrespective of their involvement in Mr. Avery's prior investigation or the civil lawsuit that was filed.
This Court specifically rejected that theory of admissibility, rejected Mr. Strang's offer at that time of something that he called institutional bias in a pre-trial manner. I was astounded yesterday to hear Mr. Strang stand before this jury and not only talk about the term institutional bias, talking about the Manitowoc County officers in general rushing to judgment, inviting this jury to make up, if you will, for what the last jury did in finding Mr. Avery guilty before.
But when invited or when given the opportunity to show, well, who are we talking about with institutional bias, who rushed to judgment, Mr. Strang played a tape of somebody named Detective Jacobs and somebody named Detective Remiker. Nothing about Colborn or Lenk, each of which this Court had authorized that by way of bias evidence and, in fact, specifically limited Mr. Strang to that of Mr. Lenk and Mr. Colborn.
And so, despite the Court's pre-trial admonitions and rulings, apparently the defense has, at least to this moment, ignored those prohibitions and at the very first opportunity; that is, during their opening statement, exploited the idea of institutional bias with the jury.
Lastly, Judge, the defense, on a number of occasions, attributed statements to Mr. Avery. On one specific occasion, Mr. Strang indicated that he, meaning Mr. Avery, said that he saw the victim drive down the dirt road and turn left on to 147, apparently towards Interstate 43.
Those statements being attributed to the defendant are, in fact, hearsay. If Mr. Strang can tell me today that Mr. Avery is going to testify, then I will withdraw my objection, thankfully, or -- or very appropriately.
However, to inject or to assert what Mr. Strang knows or should knows (sic) would otherwise be hearsay and inadmissible testimony at an opening statement is, in fact, improper. I, again, simply alert the Court that if there is going to be, through this trial, any attempts to get Mr. Avery's statements in through somebody other than Mr. Avery, or absent some other hearsay exception, then the State will be interposing those objections when necessary. That's all I have regarding the opening statements, Judge. Thank you.
THE COURT: Mr. Strang.
MR. STRANG: I will take them in the order that Mr. Kratz has raised his concerns. First, the matter of third party liability.
(A) Denny concerns only the situation which a defendant wishes to offer the specific identified person as the alternate culprit and try to prove that person's liability. My opening statement was very, very different than that.
What I did was perfectly legitimate, which was to point out that if he didn't kill her, but she's dead, then someone else did and we don't know who did that. That's an entirely legitimate prediction of where the evidence will go and an entirely legitimate theory of defense, if you will, to say, I didn't kill her; if they prove someone did, then it's someone else and we don't know who it is.
So quite apart from violating the Denny ruling and quite contrary to violating the Denny ruling, I'm entirely outside of Denny here and this was a wholly proper explanation of what we expect the evidence to show.
(B) Yesterday morning the State was backpedaling away from Brendan Dassey and wants the opportunity itself to suggest that just another person, some other person, another out there, assisted in the killing, or participated directly in the killing of Ms Halbach and Mr. Avery aided and abetted.
It's beyond irony to hear now, this morning, that while the State has the 5 billion people on this planet to whom it might point as possible culprits, the defendant can point only to Mr. Dassey. I'm squarely within the jury instruction that the Court gave, at the State's persuasion and over our objection, yesterday morning.
And (C) nothing I said, I think, would be inconsistent with Ms Halbach having run into Brendan Dassey after leaving Mr. Avery's presence, yesterday. Now, that's not what we're going to be arguing in closing argument, but as a matter of opening statement, I'm squarely within proper balance here both of a good faith prediction of the evidence and outlining Mr. Avery's defense that he didn't do it and doesn't know who did.
The second question was institutional bias. Again, several points (A) I never used the term institutional bias in my opening statement. The transcript will show that I used the term investigative bias; once, twice, or maybe more than twice.
(B) As I argued earlier, the question is bias. And bias is an issue that's relevant to each and every witness called by the State or, for that matter, by the defense, if the State wants to point out that witness' bias.
Pattern Instruction 300, Wisconsin Criminal Jury Instructions, concerns the assessment of credibility of witnesses. I think refers specifically to considering bias or possible reasons or motives to falsify for every witness. So the question here is bias of each and every witness, not institutional bias of a department.
And there were a number of Manitowoc County Sheriff's Department employees involved in this investigation. The bias of any one of them who appears as a witness is relevant. It may be proven by extrinsic evidence because bias is not a collateral issue. That was settled in Wisconsin not later than 1978 with the Wisconsin Supreme Court decision of State v. Williams.
(B) Both Dennis Jacobs and David Remiker are on the witness list. Indeed, Dennis Jacobs is on the defense witness list. I reasonably anticipate Detective Remiker and/or Detective Jacobs will appear as witnesses in this trial.
It would be difficult to imagine how the State could prove its case without calling Detective Remiker. So there's a tone of tinniness here when Mr. Kratz says, someone named Detective Remiker. I can't imagine the State would not be calling him, given his role in the investigation.
And the conversations that I played, really go to Remiker's bias alone. He knows who the "he" is that Detective Jacobs is talking about. So, although I suspect both of them probably will be witnesses and their bias clearly an issue, even if Remiker only testified here, the excerpts I played would be relevant extrinsic evidence of bias, indeed, through at least one conversation which Detective Remiker himself was a party.
The third and final issue was statements of the defendant. It is true that, at least over objection, one cannot offer the out of court statements of his own client for the truth of the matter asserted, because 908.01 (4) ordinarily is limited to statements of the party opponent. It is also true here that I reasonably anticipated what the evidence in this trial will be and that would include some of the statements of Mr. Avery. Indeed, my prediction proved pretty good, because by the third witness, David Beach, we had unobjected to testimony establishing the very statements of Mr. Avery that I included by reference in my opening statement.
Mr. Beach, according to my notes, testified without objection from the State, that when he talked to Mr. Avery, Mr. Avery said he didn't know where Teresa Halbach was going next and that when she pulled out she turned left from the Avery property.
That's almost verbatim what he said about turning left at the end of Avery Road as she left. Mr. Beach's testimony also included recitations of Mr. Avery's statements that she came first at about 2:00 in the afternoon and then later, approximately then or mid-afternoon, elicited on cross-examination by Mr. Buting. Again, all without objection of the State.
So, not only was it a fair prediction of the evidence, the prediction came true. The statements of the defendant that I suggested the jury would hear in opening statement, it has heard admissibly and without objection.
THE COURT: Anything else, Mr. Kratz?
MR. KRATZ: No, thank you, Judge.
THE COURT: All right. First of all, with respect to the third party liability issue, there's a difference between a party introducing extrinsic evidence that a specific third party is guilty of the crime versus just saying, my defendant didn't commit the crime so somebody else might have. I do not believe that the statements made by the defense in its opening statement fall into the prohibited category there.
I don't believe there was any reference to a specific third party who was the responsible third party. Obviously, if the defendant is pleading not guilty and saying I didn't do it, somebody else has to have done it, and I don't think that the defense went further than that.
With respect to the bias suggestion, the Court's previous rulings in this case have dealt with the introduction of extrinsic evidence on the issue of bias. There are specific standards that apply to the introduction of such evidence.
It was my understanding from what I heard in the defense opening, that essentially they are relying on not extrinsic evidence, but evidence that is actually part of this case, to make their argument. And I cannot say at this stage of the proceedings that that's objectionable.
With respect to the statements of the defendant, as Mr. Strang indicated, those statements can become admitted at trial through means other than the defendant testifying himself; and, in fact, to this point in the trial it's pointed out by defense counsel that's already happened. And so I can't say at this stage that there was anything prohibited about the references in the defense opening.
Just in general, I would note the following: The Court instructs the members of the jury that the opening statements themselves are not evidence. They will get instructed that again at the close of the case.
If either party makes a representation in their opening that some evidence will be introduced and it turns out that the evidence does not get introduced, the party who made the statement in the opening statement runs the risk that the other side will bring it up in closing; that is, remind the jury that the other side told you they would hear this evidence and this type of evidence was never introduced.
So I think to the extent that anything mentioned by the defense in its opening was not from the past, the State will have adequate opportunity to address that in closing argument.
Is there anything else to take up before we bring the jury back?