1.Rulings on Fair Testing, Search Suppression, and Charge Dismissal

THE COURT: The first item of business today is for the Court to issue its decision on three outstanding motions. The Court has already heard argument on these motions. I'm ready to issue the decisions at this time.

The first motion the Court will address is a renewal from the defense of its fair testing motion; that is, a motion that was filed pre-trial by the defense, last summer, asking for permission to have an observer present while the Wisconsin State Crime Lab was performing analysis of various pieces of evidence.

The defense counsel argues that the defendant in this case was prejudiced because the defense was not permitted to have an observer present while DNA testing was conducted of a bullet, by Sherry Culhane. Ms Culhane testified that during the testing process, some of her DNA made its way into a control sample that should not have contained anyone's DNA.

She believes it happened as a result of saliva that came from her mouth while she was speaking to observers from within the lab who were being trained at the time. Ms Culhane testified that there was no evidence of contamination in the test of the extract from the bullet itself, which is found to contain Teresa Halbach's DNA.

The defense argues that this account given by Ms Culhane demonstrated the defenses need to have an observer present during testing. The observer might have suggested splitting the extract from the bullet as a control, before the remainder of the test was completed, in order to determine whether Teresa Halbach's DNA was, in fact, on the bullet, or somehow found its way into the abstract -- into the extract through contamination.

An observer may also have seen, argues the defense, how Teresa Halbach's DNA may have gotten into the extract if it happened through contamination. As a remedy, the defendant asks that the Court suppress the test results, or in the alternative, if suppression is not granted, instruct the jury that the State resisted a defense request to observe the testing process. The State's testing totally consumed the sample. And the State withheld the Crime Lab's contamination log until it was specifically requested by the defendant.

Both parties acknowledge in their argument that the test, which the Court must apply, is that set forth in the United States Supreme Court case of Arizona vs. Youngblood; that is, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process in law. The issue boils down, then, to whether or not the State was guilty of bad faith in this matter.

The evidence that the defense cites as evidence of bad faith on behalf of the State is the following: First of all, the State resisted the defendant's initial request to observe the testing.

Second, the State did not disclose the Crime Lab's contamination log history to the defense at the time of the original fair testing motion. The argument is that earlier disclosure may have allowed the defense to succeed in its earlier motion.

Third, that the State did not provide a copy of the contamination log as part of the defendant's original general discovery request.

Fourth, the defendant expressed its concern about contamination at an earlier stage in this proceedings and Ms Culhane's testimony demonstrated that contamination occurred.

Fifth, the defendant personally expressed his concern about being framed at an early stage in the trial.

And, sixth, there is no clean sample left for the defendant to test because the extract that was found to contain the victim's DNA may have already been contaminated and the -- there is not sufficient DNA left on the bullet to independently test.

The Court concludes that those facts do not demonstrate a finding of bad faith on the part of any representatives of the State.

With respect to the first part of the defendant's request, that the State resisted its request to observe the testing, the law in Wisconsin is that the State had a right to resist that request. Relevant are Wisconsin Statute Section 176.79 (1), as interpreted in the Court of Appeals case of State vs. Franszczak, F-r-a-n-s-z-c-z-a-k, a 2002 reported decision. The Court in that case summarized the law under the statute as follows: All evidence, information, and analyses of evidence submitted to the Crime Lab by law enforcement is privileged and, therefore, is off limits to a defendant prior to trial. The same is true as to the analyses of such evidence by the Crime Lab. This privilege also bars any effort, by a defendant, to examine Crime Lab personnel as witnesses prior to trial.

There is an exception with respect to such evidence as is subject to discovery under Section 971.23 and, in fact, discovery was exercised here and the State did present materials. The point is there's nothing improper about the State's initial resistance to the defense request for fair testing. It's authorized under the statute.

The second State argument is that the State did not timely disclose the contamination log history to the defense, or the Court's original decision might have been different because the defense argument for observation would have been stronger.

The Court would not have ruled differently on the original motion, even if it had known of the existence of the contamination log earlier. Frankly, the Court is relieved to know that such a log is kept as an aid to defendants who are able to make use of it in cross-examination, as the defendant did in this case.

The Court believes it is far preferable to have a contamination log than if the Crime Lab was hiding its mistakes. I will also note there is no evidence to suggest the contamination log demonstrates any fraud on the part of the Crime Lab in its history, as the defense referred to in other State Crime Labs as part of its original argument.

The defense also argues that the State did not provide a copy of the contamination log as part of the defendant's general discovery request. The Court wasn't really presented with information to suggest whether or not the contamination log would have been within the scope of the original request made by the defense.

However, it appears that the State did provide a copy of the contamination log, to the defendant, upon specific request for the log, and the Court believes that the defense was able to effectively use the information from the contamination log in its cross-examination of Ms Culhane. That is, the Court doesn't believe there was any prejudice to the defense in the conduct of its case.

The fourth argument advanced by the defendant is that the defense expressed concern for contamination, and in this case contamination admittedly occurred as Ms Culhane testified. The Court finds that despite that express concern on the part of the defense, doesn't change the law in this area, that the State is simply not required to permit an observer at the Crime Lab.

The defense also argues that the defendant himself personally expressed concern about being framed earlier in this case. The Court understands that that in fact was the case here, but the Court also understands that the defendant's claim is that he was being framed by members of the County Sheriff's Department and not by members of the Crime Lab.

I think it's worth noting in this case that it was Ms Culhane's testing of the DNA in the 1985 case that, in fact, led to the defendant's exoneration. The Court is not aware of any allegations that the Crime Lab was a party to any frame up here and the Court finds no reason to believe that was the case.

The last argument was there's no clean sample left to test, as while there is an abstract of the blood evidence, that abstract may have been already contaminated. There's no indication here that the operator, Ms Culhane, used more of the sample than was necessary. She used her best judgment in testing the bullet as she did.

She testified that there was nothing visible on the bullet and she felt she had to take an extract from the bullet in order to get enough of a sample to test. The Court can't find anything wrong with that, which would constitute, in any fashion, bad faith on the part of the State. The bottom line is that Ms Culhane did somehow contaminate the control sample in the course of the testing process and she disclosed that contamination. She followed protocol in asking for an exception. Her mistake was disclosed to the defense in a timely manner as part of discovery and the defendant skillfully elicited her testimony about the mistake in cross-examination. The Court does not believe that any bad faith has been shown or that the defendant has not been -- has been unfairly prejudiced in any manner and for that reason that motion is denied.

The next motion renewed by the defense is the -- is motion to suppress evidence from multiple searches. This motion was renewed outside of the presence of the jury during the trial, on February 23rd. At that time the defense renewed its motion to suppress evidence based on illegal searches, which was initially denied by this Court in a 21 page written decision on December 12 of last year.

Defense counsel cited three separate bases for renewal of the motion at this time, based on evidence that was introduced up to February 23rd. First, the defendant claims that the testimony of Special Agent Fassbender and the other officers who participated in the execution of the multiple day search is not consistent with the facts which formed the basis of the Court's original ruling. Specifically, the defendant characterized the initial entries as prohibited warm-up searches, which are not constitutionally permitted.

In the Court's view, the evidence introduced at trial was consistent with the Court's earlier understanding of the bases for the various entries into the trailer and garage that were occupied by the defendant. The Court is not going to repeat here its earlier findings or conclusions, other than to note that the evidence supports the Court's prior understanding of the circumstances under which the entries to the defendant's trailer and garage were made.

The fact that there were admittedly multiple entries, raises a number of interesting legal issues of apparent first impression in the State of Wisconsin, but the Court believes it addressed those issues in its written decision and the evidence introduced does not change the factual assumptions which were part of that decision.

The defendant's second argument is that the facts introduced give new life to the defendant's Franks motion. Specifically, the emphasis by law enforcement in the early stages of the search, treating the case as a missing persons case, the defense alleges undercut the representation made in the affidavit for the initial search warrant by Mr. Wiegert.

Mr. Wiegert's specific representations in the affidavit for the warrant were the following: Your affiant believes, that based on Teresa's lack of contact with her employer and family members, and her vehicle being abandoned at the Avery Auto Salvage Yard, that Teresa Halbach is the victim of a crime, including but not limited to, homicide, sexual assault, kidnapping, false imprisonment, and theft.

Essentially the Court understands the defense argument to be that the State is not permitted to suspect the worst, but hope for the best. The Court does not agree, given the facts available to law enforcement authorities at the time, primarily the lack of conduct -- or contact with Teresa Halbach for a number of days, and the circumstances surrounding the discovery of her vehicle, even before anyone's blood was found inside the vehicle, there was more than probable cause to suspect serious foul play, in the form of the crimes listed in the affidavit.

It is not inconsistent, in those circumstances, for law enforcement personnel to hope that their legitimate suspicions are wrong and that there might be some explanation which would be consistent with Teresa Halbach still being alive. There is nothing unreasonable about what the State did, or what the State gave as bases in the affidavit for the search warrant. The information known to the State at the time, which was reflected in the search warrant, provides adequate probable cause for its issuance. The defendant's third separate argument is that the State waited too long to commence its search of the burn pit area behind the defendant's garage, where the victim's bone fragments were found. As the Court understands the argument, it's different from the challenges to the searches of the trailer and the garage because the claim is not based on improper multiple searches, but rather on an improper delay in conducting the search at a time after the possession of the defendant's living quarters should have been turned back to him.

The Court finds nothing improper about the timing of the search in this case. Section 968.15 requires that a search warrant be executed and returned within five days. The search of the burn pit commenced before that time period expired.

The defense makes much out of the fact that the searchers initially refrained from starting the search because of the presence of the defendant's dog and that's not a valid reason for not starting the search earlier, even if the dog appeared to be dangerous. The Court agrees that the presence of the dog alone would not excuse the timing of the search in this case.

However what does excuse it are a number of factors. First, as the Court noted, the search was commenced within the five day time limit.

Second, law enforcement personnel had a very large area to search under the warrant, that is, the entire Avery Auto Salvage Yard, and they did not artificially delay, in any way, their search of the burn pit.

Third, and most significant, the significance of the burn pit site was not apparent until what appeared to be human remains were discovered there. Once that discovery was made the authorities worked promptly to collect the evidence.

There was nothing unreasonable about the search of the burn pit. For these reasons, the defense renewed motion to suppress evidence based on unlawful searches is likewise denied.

Third motion that the Court addresses this morning is the defense motion to dismiss all charges against the defendant at the close of the State's case. The standard that the Court is to apply in this situation has been stated as follows:

The test is whether, considering the State's evidence in the most favorable light, and the evidence adduced, believed, and rationally considered, is sufficient to prove the defendant's guilt, beyond a reasonable doubt. That is, the Court has to look at the evidence in a light most favorable to the State and ask itself whether a reasonable jury could find that the defendant is guilty beyond a reasonable doubt.

In this case, the defendant moved to dismiss all charges, but did not present specific argument on the homicide, mutilation of a corpse, and possession of a firearm charges. The Court is not going to summarize all the evidence here, but it concludes that the State has introduced evidence which, if believed by the jury, would be sufficient to prove the defendant's guilt, beyond a reasonable doubt, on these three particular charges.

The argument advanced most strenuously by the defendant is that the evidence introduced by the State, even if believed by the jury, would not be sufficient to sustain a guilty verdict on the false imprisonment charge. The elements the State must prove on the false imprisonment charge are the following:

One, the defendant confined or restrained Teresa Halbach during her lifetime.

Two, the defendant confined or restrained Teresa Halbach intentionally.

Three, Teresa Halbach was confined or restrained without her consent.

Four, the defendant had no lawful authority to confine or restrain Teresa Halbach.

Five, the defendant knew that Teresa Halbach did not consent and knew that he did not have lawful authority to confine or restrain her.

The Court understands the defense argument primarily to be that there's no evidence the defendant confined or restrained the victim in this case. The State introduced no direct proof of that particular element, but asserts that it has a circumstantial evidence case. The State points to evidence that the defendant used his sister's name in requesting the victim to come to the property.

Bobby Dassey testified he saw Teresa Halbach heading toward the defendant's trailer after he observed her taking pictures of his mother's van and did not see her three to four minutes later when he looked again after taking a shower. The bullet fragment with the defendant's DNA was found on the floor of the garage. The State submits this evidence demonstrates that the victim was killed in the garage by two bullet wounds to the head. The State also argues the evidence demonstrates that the victim was forced, involuntarily, from the trailer to the garage, and that's the basis for the false imprisonment charge.

The State does offer a plausible scenario for what happened; however, that's not the standard that the Court must apply. The evidence has to be sufficient to support a jury verdict of guilt, beyond a reasonable doubt. The circumstantial evidence introduced by the State is, if believed by the jury, sufficient to sustain a guilty verdict on the other charges, but the Court believes there's minimal evidence supporting the false imprisonment charged.

Viewed most favorable to the State, there is a logical inference that the victim entered the defendant's trailer for some unspecified period of time and that she was killed by the defendant in his garage. There is no evidence from which a jury can determine the circumstances of how she went from the trailer to the garage.

To conclude, on the evidence presented, that she was forced there against her will would require speculation on the part of the jury. The Court believes it is not coincidental that the defendant was not charged with false imprisonment until after the State received statements from Brendan Dassey. That fact alone would not prevent the State from pursuing the false imprisonment charge if there was other evidence to support the charge. But the record does not contain such other evidence.

During voir dire, a number of jurors indicated they were at least somewhat familiar with the case against Brendan Dassey. To submit this charge to the jury would, the Court believes, invite the jury to fill in the blanks, if you will, by what they might otherwise remember about allegations that have not been supported by evidence in this case.

The Court concludes there is not sufficient evidence in the record to support a jury finding of guilt, beyond a reasonable doubt, on the false imprisonment charge. And the Court, therefore, grants the defendant's motion to dismiss that charge.

Counsel, is there anything further before we bring in the jury?