3.Defense Evidence Decision, Right-to-Testify Colloquy, and Juror Request
38 linesTHE COURT: At this time we are back on the record, outside the presence of the jurors. All counsel and the defendant are present. Mr. Strang, does the defense have any additional evidence it wishes to present?
MR. STRANG: We do not, your Honor. We intend to rest, formally, before the jury next joins us in the courtroom.
THE COURT: Very well, before we bring the jurors in the courtroom to inform them of that fact, the defendant in this case has a right to testify if he wishes. And the Court wants to make sure that if he is declining to exercise that right, that it is done so knowingly and voluntarily. Mr. Strang, have you raised this issue with your client?
MR. STRANG: I have raised it with Mr. Avery; that is, Mr. Buting and I both have, jointly, several times, probably beginning before trial and then during the trial.
THE COURT: Thank you. You can move the microphone over to Mr. Avery then.
Mr. Avery, do you understand that you have a constitutional right to testify in this case, if you wish?
STEVEN A. AVERY: Yes, I do.
THE COURT: And do you further understand that you have a constitutional right not to testify, if you wish?
STEVEN A. AVERY: Yes, I do.
THE COURT: Do you understand that the decision whether to testify or not is yours to make?
STEVEN A. AVERY: Yes.
THE COURT: That means, you can listen to your attorneys and listen to their advice, but, ultimately, it's your call; do you understand that?
STEVEN A. AVERY: Yes, I do.
THE COURT: Has anyone made any threats or promises to you to influence your decision?
STEVEN A. AVERY: No, they didn't.
THE COURT: Have you thoroughly discussed your decision with your attorneys?
STEVEN A. AVERY: Yes, I did.
THE COURT: And have you made a decision as to whether or not you wish to testify in this case?
STEVEN A. AVERY: Yes.
THE COURT: What is your decision?
STEVEN A. AVERY: My decision is, I'm an innocent man and there's no reason for me to testify. Everybody knows I'm innocent.
THE COURT: Okay. So you wish not to testify; is that correct?
STEVEN A. AVERY: Yes.
THE COURT: Thank you. You may be seated.
STEVEN A. AVERY: Thank you.
THE COURT: Mr. Strang and Mr. Buting, have each of you had sufficient opportunity to thoroughly discuss this case and the decision whether or not to testify with your client?
MR. BUTING: Yes, we both have.
THE COURT: And are each of you satisfied that he's making his decision not to testify knowingly, intelligently and voluntarily?
MR. BUTING: Yes.
THE COURT: Very well, the Court finds that Mr. Avery's decision not to testify in this case is knowingly and voluntarily made. I'm satisfied he's aware of his constitutional right to testify, if he wishes. And he is knowingly and voluntarily declining the right to exercise the right to testify. Is there anything else that either party wishes to address before we bring the jurors in?
MR. STRANG: There is, from the defense, your Honor. I cannot remember when, but sometime earlier in this trial, we discussed the issue of one of our juror's participation on an earlier civil jury in which the witness here was a party. I will not name the juror, but the juror is known to the Court and to opposing counsel.
We argued at the time, that although this was uncharted territory, as a matter of case law, that the juror having once passed on the credibility of a witness here, and that witness' role as a party in a prior civil lawsuit, we thought would leave a strong enough impression on a juror and enough commitment to conclusions about credibility that there would be at least objective bias, if not also subjective bias, and reason to relieve the juror from further responsibilities. The Court disagreed.
We went back to the case file in the earlier civil case and had our defense investigator look at that file in the Manitowoc County Circuit Court. And it appears from our investigator's review that the real crux of the dispute that was to be resolved by that earlier civil jury was whether the man who was a witness here and the plaintiff in that earlier case was malingering or not.
So his credibility, as we understand that earlier file, was not only in issue, but probably the main fighting issue, the main point of dispute in the earlier case. Clearly, given the jury's award of something better than $170,000, to the plaintiff, that credibility contest was resolved in favor of the plaintiff there, witness here.
What we would like, and ask the Court to do, is to transfer the whole of the file from the earlier case to your Honor's custody now, so that your honor might review both the Clerk's minutes and such trial transcripts as there are. The parties also should have an opportunity to review those.
I have no reason to think that opposing counsel have seen the file and I know that neither Mr. Buting or I, personally, had seen the file. We simply delegated this to an investigator to take a first pass through that earlier file.
So I request that the Court bring the file, physically, to Chilton, from Manitowoc, review the file itself, allow the parties an opportunity to do that. And we anticipate renewing our motion to relieve this juror from further responsibilities in this case, acknowledging, as we have from the beginning, that the juror did the right thing by raising the issue at all, with the Court.
So this isn't a juror misconduct issue, claim, not even remotely. We think it's an interesting, as far as we know, unprecedented factual situation that arises, that we believe does require that the juror be relieved. So that's the request I'm making today and the one I'm forecasting later.
THE COURT: Let me ask one question before I ask the State if they wish to comment, just to enable me to prepare to reevaluate your request. Is it the defense position that even if this juror is not subjectively biased, that by virtue of the juror's participation in this prior trial, that the juror is objectively biased?
MR. STRANG: Yes, in a word. And I won't labor again to the argument I made earlier, but I spoke to the Court, at the time, about the unique function of being a judge of facts. And the stylized way in which judges of facts, namely jurors, assess the credibility of witnesses and that it's very different than the way we assess credibility day-to-day, or in the grocery store, or barbershop, or wherever we may have conversation with people.
And having -- having undertaken that very special and stylized credibility assessment, I think it's unlikely that a juror would reconsider the credibility assessment, once arrived at, as a matter of judgment, as a judge of the facts. And that, objectively, this looks like someone who comes in with an opinion on the credibility of a witness, that has been cast by a very special prior intense experience, with a heavy responsibility for weighing credibility in that earlier role, and now being asked to do so again under the same pattern instruction and with the same special and stylized considerations that apply, in a trial, to the judges of the facts, who fill out the array of 12 people in a jury box.
We don't think, reasonably, she could be expected, entirely, to set aside that prior, not just experience with the witness, but conclusions about credibility that she endorsed and drew after deliberations with -- with a group of 12 in that case and affirmed with her verdict.
THE COURT: All right. I take it at this point the defense is not asking to argue the merits of its request, but rather simply asking the Court to have the file transmitted here tomorrow.
MR. STRANG: Well, that is correct. I argued the merits earlier. I anticipate I will argue the merits again, but for today, if we can get the file and all counsel can have whatever opportunity they wish to avail themselves of to look at the file, will be in a better position to discuss the issue on the merits tomorrow, or at the Court's convenience.
THE COURT: Anything from the State?
MR. FALLON: I would simply say that we don't oppose that suggestion and would certainly like the Court to examine the file at its leisure. I will no doubt be heard tomorrow regarding any renewed motion for the recusal of the juror. I will save my argument until then.
THE COURT: Very well, the Court will make sure the file is here tomorrow. I don't know how much leisure time I will have to review it, but I will make sure that it does get reviewed.
Anything else before we bring the jurors back in? All right. You may bring the jury in at this time.
(Jury present.)