1.Formal Jury Instruction Conference

MR. STRANG: The Court's version of the theory of defense instruction on page 5 has its origins primarily in defense proposed Jury Instruction No. 9, submitted on March 10. I think for purposes of jury instructions, the theory of defense instruction that we tendered as No. 9, meets the three criteria for a Court in deciding whether to instruct a jury on any point of law.

There is -- This is an accurate statement of law and I don't hear the State to contend otherwise. The matter is not otherwise covered in the Court's proposed jury instructions. Again, I don't hear the State to contend otherwise.

And there is at least some evidence which, if accepted by a jury, reasonably would allow the inference and the conclusion that Mr. Avery was not the person. If someone did, he was not the person who killed Teresa Halbach, or burned her body, and that others, instead, did and took actions to make it appear that Mr. Avery was guilty.

I'm don't -- I'm not going to go through the entire trial, but I think the evidence more than supports a reasonable jury in drawing that conclusion from the evidence, if the jury wishes. And that's why this is called a theory of defense instruction and that's why there are also theories of prosecution. A jury may or may not choose to accept one side's theory or the other.

But there is an adequate evidentiary basis for the instruction as submitted, No. 9. It should be given. I agreed further to modifications of No. 9, defense proposed No. 9.

The Court's modifications set out here on page five of the red line draft of instructions is acceptable to the defense. And if the Court gives the theory of defense instruction as now worded in this red line instruction, I will accept the modification of defense No. 9.

I also, again, on the express predicate that the Court gives the theory of defense instruction as set forth here, am prepared to withdraw defense proposed Instruction No. 1 and defense proposed Instruction No. 2. Those are more specific refinements.

I recognize that I could not satisfy this court or an appellate court that the general theory of defense set forth here by the Court did not otherwise cover the matters suggested in No. 1 and No. 2 as proposed by the defense. So I would withdraw those, if the Court gives the theory of defense instruction as set forth on page five of today's draft.

MR. STRANG: That's right. That's right and wrong. I will be arguing that some additional defense instructions should have been included but, you know, subject to that argument, the wording of the draft I have in front of me is acceptable.

I will make an extemporaneous suggestion, and suggestion only, that Pattern Instruction 58, as modified, and that appears near the bottom of page 8, might -- might be better moved to either page 12 or page 13, either right before or right after the 460, the closing instruction, just as a matter of flow. But that's -- that's a suggestion only. It also could go right after 103 on page 1 or page 2. It looks, to me, out of place where it is on page 8, but that's, you know, a suggestion, at most.

MR. STRANG: Yes, your Honor, 1 and 2, which are in the March 8, 2007, submission, are withdrawn. No. 3 is not withdrawn, although, as I suggested, informally, in chambers, I readily would accept a substantial modification of this instruction.

The nub of the legal point that I wish communicated to the jury is that the Court's decision to admit an exhibit, as opposed to admit testimony of a witness, the Court's decision to admit an exhibit says nothing about the weight that the jury ought to give the exhibit, or any other exhibit. And so the concept I want to capture is the same one that the legislature captured in Section 909.01 of the Wisconsin Statutes.

It's the same concept that the legislature drives at in Section 901.04 of the Wisconsin Statutes which, you know, concerns preliminary determinations of admissibility, conditional admissibility; 901.03 may be another Wisconsin Statute that goes to the concept that, determining something admissible doesn't mean that the exhibit is what the proponent claims necessarily, just means that a jury so could find, reasonably. And it doesn't mean anything about the weight. The Court hasn't passed on the weight of an exhibit by admitting an exhibit.

Why does it matter here? Well, we have got 501 marked exhibits. Almost all of those have been admitted. It's just a handful or two, I don't know the precise number, but it's a small number of the marked exhibits, that were not also received by the Court. Much of the physical evidence here is hotly disputed in terms of its meaning, its importance, the weight that ought to be given to it.

And, you know, I don't think the instructions, otherwise, cover exhibits very well. It is true that Pattern No. 148 refers to other evidence, but there remains some ground that can be covered and should be covered, quickly an uncontroversially, within the scope of defendant's proposed Instruction No. 3. So that's my argument there.

I overlooked one point that I want to go back to, if I may, while I'm thinking of it, in the Court's red line instructions. And that is at page 6. It's the last paragraph in the instruction on elements of the crime of felon in possession of a firearm.

Now, we have stipulated the truth of the second element, so the State need not prove, did not need to offer evidence to establish the second essential element of the offense of felon in possession of a firearm. It's established by stipulation. I think -- and I can't cite a case, because I can't call it to mind and I haven't had time to look at it -- but I think there is constitutional authority that, not withstanding a stipulated element, the Court still not -- may not instruct a jury that it must accept an essential element of an offense as conclusively proved.

It is clear to me that the Court may instruct a jury that it may accept the second element in this offense as conclusively proved. And, again, the element is not in dispute. But, ultimately, this goes to the fundamental role of the jury, as the finder of facts and the ultimate arbiter of whether a person will be convicted of a crime.

And I wish I had a case to cite or the source of the authority. But I just -- I have the sense that must accept a stipulation as an element goes one half step too far. And I just -- I wanted to alert the Court and counsel to that potential constitutional infirmity in the instruction, if I'm right.

The element remains stipulated. We're not going to argue it. You know, we're not going to argue to a jury that it's not proven. We're not backing off the stipulation. A jury certainly may and should accept that stipulation. I just don't know that the jury must, as a matter of the right to a jury trial.

MR. STRANG: Brief reply, because we went around and around about this in chambers and the Court posed a very good question on when would there ever be an item of physical evidence that had significance, independent of the testimony about it, which I really thought was -- really -- I thought it was a fascinating jurisprudential, the question in the end.

And the thought finally occurred to me, over lunch, and this goes all the way back to Dean Wigmore. And I don't mean Wigmore in evidence after other people took it over, I mean Professor and Dean Wigmore when he was alive and what he described as an autoptic proference. And the classic example he gave was a knife with dried blood on it, an item that was so powerful, in and of itself, that its significance was carried in its presence and its physical quality.

And we have something pretty close to what Dean Wigmore would have called an autoptic proference here in, for example, a flattened bullet fragment found in the garage, a Toyota key found in the defendant's bedroom. Again, this was 1880 and 1890, when people were having these arguments, but I simply think that the concepts covered by the -- the three statutes I cited on admissibility as a preliminary question and authentication. And the basic concept that admissibility does not determine weight is something that the instructions don't otherwise cover and should be.

MR. STRANG: Yes, thank you, your Honor. That's the one I started to say, I think that I was persuaded in chambers, and remain persuaded, that is a topic adequately covered by Wisconsin Pattern Criminal Jury Instruction 300. And that Pattern Instruction 300 gives adequate legal support for an argument the parties may want to make. And I withdraw No. 4 for that reason.

No. 5 has been modified. And as modified, incorporated into the Court's red line draft today. The modification is acceptable to the defense. And provided the modification, on experts and the jury not being bound to accept an expert's opinion, remains in the final instructions, I'm pleased to withdraw defendant's proposed Instruction No. 5.

Defendant's proposed Instruction No. 6, also I view as having been modified and incorporated into the Court's red line draft today. I accept the Court's modification. And assuming that remains in the final jury instructions to be given in this case, I would withdraw anything more from defendant's proposed Instruction No. 6.

Defendant's proposed Instruction No. 7, I understand the Court to be inclined to deny. It concerns the general topic of spoliation. I do not withdraw this instruction and I ask the Court to reconsider its position.

I want to recognize, if for no other reason than that one always ought to recognize the obvious, that the United States Supreme Court has spoken to an issue related to spoliation in the due process context, though, not in the context of an adverse inference that a jury might be invited to draw, but not required to draw.

The Supreme Court decisions, the leading decisions are Arizona against Youngblood, earlier discussed in this trial, I think as recently as yesterday. And California against Trombetta, also discussed in this trial. I understand and recognize, as a matter of due process, only bad faith destruction of evidence material to innocence or guilt results in a due process remedy for the defendant, dismissal of charges, or suppression of other evidence.

Here, I'm interested instead in an adverse inference. Evidence has come in, evidence can come in, consistent with the due process clause, if the Court is right about suppression rulings that it has made.

But the question here is what inferences should be available to the jury and should the jury be informed are in the array of choices as a matter of law. And the State here, there's more than adequate testimony to show that the manner in which the State recovered bone fragments could have led to destruction or loss of those bone fragments. The failure to photograph could have led to human remains not being recognized or recovered at all at the scene.

And by volume here, Dr. Eisenberg testified that she thought she only had about 40 percent of a complete human skeleton. So the possibility that remains were not recognized and recovered at all is real and reasonable on this record.

We also had the proffered testimony of Deb Kakatsch, the Manitowoc County Coroner, excluded by the Court on the State's motion, and over our objection, that would have gone to the prospects for a more successful recovery of human remains, with the assistance on the scene of a forensic anthropologist and a forensic pathologist.

So, where the record would support an inference that material evidence, that is, human remains, may have been destroyed or not recovered at all, because of the means employed by the State, an adverse inference ought to be available to this jury for spoliation. And it ought to be available on the same standard it would be in a civil case. The criminal accused, the person accused in a criminal case, surely can't be at an evidentiary disadvantage when compared to a civil defendant arguing over liability or money.

I think, here, that the actions to which Special Agent Thomas Sturdivant testified, were deliberate in the sense of intended actions chosen as a matter of free will from the options that Mr. Sturdivant saw available to him. I don't contend that Special Agent Sturdivant acted in bad faith. I'm not going to argue that he did.

Although, of course, the good or bad faith of any witness is for the jury to decide in the end. But I don't think we have to show bad faith and evil purpose, or motive, to establish that actions are deliberate or intentional simply in the ordinary sense of not being accidental or involuntary. So, for those reasons, I think the Court should give something like defendant's proposed Instruction No. 7. I always would consider some modification, if the language is clumsy, or overstates the point. But I have not heard either the State or the Court suggest a willingness to modify Instruction No. 7. And so I advance it with the proviso that I have just added.

MR. STRANG: Now, the Court is going to the point. A core point of Dr. Fairgrieve's opinion is that we will never know where this body was burned because of the manner in which the recovery was undertaken. The absence of photographs and the absence of the careful approach to the recovery.

And he described what a proper recovery approach would have been in the view of -- in his own view as a forensic anthropologist. And as he said, we don't know. One of the reasons we don't know, and will never know, in his view, where the body was burned, is because of the manner of recovery.

Now that can cut both ways. But it's an issue material to guilt or innocence. That is, it is quite possible to hypothesize that, had the recovery been done properly here, Dr. Fairgrieve or Dr. Eisenberg would have been able to give a professional opinion, to a reasonable degree of certainty within the field of anthropology, that the area behind Steven's garage was not the site on which this body was burned, originally.

That clearly would suggest, it wouldn't be conclusive but it would suggest, Mr. Avery's innocence. Since it's a lot less likely that he would have brought bones to a place more closely associated with him, if he had burned them at a more distant place.

It's also possible that a better recovery would have allowed one or both of those experts to conclude that the area behind Mr. Avery's garage was, in their professional opinion, the site of the cremation or incineration. That would have tended to strengthen the State's argument for guilt for the reasons conversed as those I just suggested.

But either way, it's material to guilt or innocence. And because we don't know and because the recovery was the State's effort here, the adverse inference should be available, although, of course, not forced on the jury.

MR. STRANG: The next instruction is defendant's proposed Instruction No. 8, this concerns prior inconsistent sworn statements. I think the Court ought, at a minimum, give this jury some instruction on prior inconsistent statements. It readily could be appended to Pattern Instruction 300 on the credibility of witnesses, wouldn't have to stand alone.

But it's odd, that in this state, although Pattern Instruction 300 gives a number of different considerations that a jury specifically ought give the witness, the concept of changing one's story, of making an inconsistent earlier statement, is omitted from that, and I think that's a significant omission.

We have at least two rules of evidence that I can think of off the top of my head, Section 906.13 of the Wisconsin Statutes and Section 908.01(4)(a), that are addressed specifically to prior inconsistent statements. These are understood, at least by lawyers, to bear on the credibility of witnesses.

And we ought to let jurors in on that secret and tell them, specifically, that they can consider a witness' prior inconsistent statement in weighing the credibility of the witness. It matters here. I don't know of any witness whose credibility is more central, both to the defense that Mr. Avery has presented, and to the State's response, than Lieutenant James Lenk.

Of course, the credibility of every witness is important, but he may be first among equals, or close to that, in this case. And I can't imagine I would get serious argument from the State about the importance of both sides attached to Lieutenant Lenk and Sergeant Colborn here.

And Lieutenant Lenk was shown to have made materially different statements, under oath, than he made on the same topic here at trial. And he was, in fact, impeached on cross-examination, with two prior sworn statements, that I think a jury could find are materially inconsistent with his testimony on direct examination on the question of, when did he arrive at the Avery property on November 5, 2005. This jury should be told, specifically, that it can consider those prior inconsistent sworn statements in weighing his testimony.

Now, I will readily offer to accept a broader statement of prior inconsistent statements. Indeed, I would accept a modification that removed the reference to sworn statements, or remove the reference to any witness by name, as a less favorite alternative, to get some instruction that treats the topic of prior inconsistent statements.

There certainly were other witnesses who were impeached here with prior inconsistent statements, albeit unsworn. Scott Tadych comes to mind. Blaine Dassey comes to mind. Bobby Dassey may have been, my memory doesn't serve me entirely at the moment on that. And there may be others that I'm not thinking about at all. But I know it was not just Lieutenant Lenk. What made him different is, I believe he is the only witness who was impeached by a prior sworn statement.

I could live without that, if -- if the Court wanted to broaden the concept, because the basic concept of considering credibility in the light of whether someone changes his story, goes beyond whether the statement is sworn or not. It's important enough that it ought to be addressed for the jury in considering credibility.

I think there's no question about the legal accuracy of defendant's proposed Instruction No. 8. I also think that Pattern Instruction 300 does not adequately cover the topic and no other instruction really comes close. So I do seek something like defendant's proposed Instruction No. 8.

MR. STRANG: Well, I mean I have got to be -- Court's entitled to some intellectual honesty here and the fact is that the answer is yes, in that, you know, if an out of court declarant statement is admitted, under 908.05, it may be impeached or supported, as if the person had testified.

Now, with a defendant, there's, of course, a constitutional overlay here, because he wasn't a witness in the sense that the jury would understand that term at the trial and he has a right not to testify and his silence can't be considered against him. So the State would be well advised to be very, very careful about how it argues his earlier statements, in part, because as I understand, the State has agreed not to refer in argument to a statement to which Detective Remiker testified and another alleged statement to which Bobby Dassey testified.

But, here, the statements to Mr. Colborn, alleged statements to Mr. Colborn, the alleged statements to Mr. Beach, are statements that were disclosed and that the State properly can argue, if the State has not agreed not to argue those two statements. There's no reason the State would have to agree not to argue them.

And if the State sees inconsistencies, as a matter of intellectual honesty, it's entitled to draw the jury's attention to those, even though the defendant is the alleged speaker. But the State also has to be very careful not to run afoul of Doyle, or Griffin, or commenting on a defendant's silence and decision not to testify at trial.

So there's room for the argument, 908.05 would suggest that, to the extent Mr. Avery is an out of court declarant, whose statements are admitted, for purposes of credibility in -- at least in some ways, treated like other witnesses. There's room, the instruction would apply, and it's just treacherous territory. And that's -- that's all I'm saying.

And I will add on this, that lest anyone think I have completely taken leave of my senses, the reason I so readily agreed to adding the term consistency, as the Court proposed, is that there is an evidentiary basis for that.

Prior consistent statements are treated different -- differently under the rules of evidence, than prior inconsistent statements. But, at least one witness, Lisa Buchner, had her credibility bolstered again by the introduction of prior consistent statements, through Detective Wiegert -- Investigator Wiegert. So there's an evidentiary basis for adding the term consistency and that's why I agree to it and I continue to agree to it. I mean I hope that helps.