11.Objection to Third-Party Liability Argument
20 linesTHE COURT: You may be seated. First of all, Mr. Kratz, I will hear your objection at this time.
MR. KRATZ: Thank you, Judge. This Court has entered numerous pre-trial rulings for which Mr. Buting was a party. One of those pre-trial rulings prohibited any reference to a possible third party, that is, a killer, other than Brendan Dassey, without advance ruling of the Court. This Court entered a written order, as I recall, as to that matter.
Mr. Buting, in front of this jury, indicated that maybe Bobby Dassey is the killer. There's two things that I ask the Court to entertain: First of all, inquire of Mr. Buting whether that was an intentional violation of the Court's previous ruling; that is, whether he recalled the Court's previous ruling as to third party liability and whether or not Mr. Buting was fishing for a mistrial.
And if not, that is, if the Court is unwilling or otherwise able to make its own ruling as to intentional versus negligent reference to Bobby Dassey, we are asking for an admonishment in front of the jury as to the nature; that is, that it intentionally or purposely violated a pre-trial ruling of this Court.
Certainly earlier, in Mr. Buting's testimony, when referring to the burn barrels with Bobby Dassey, he had referred to Bobby Dassey as a possible other suspect. However, it wasn't as blatant in calling Bobby Dassey the killer.
And I don't know whether Mr. Buting thinks that he's entitled, because he's representing Mr. Avery, to play by a separate set of rules, or to ignore pre-trial rulings of the Court, and it certainly does call for an admonishment and I would suggest it calls for a colloquy, with the Court, as to whether this was an intentional violation of a previous Court order.
I would note that, Judge, both Dassey and Tadych were specifically ruled out in the pre-trial rule or the pre-trial order.
THE COURT: Mr. Buting.
MR. BUTING: Judge, I'm aware of the pre-trial ruling. I don't believe I exceeded the Court's ruling. When you are doing closing arguments, of course, sometimes you say things differently than you intend. If I did, I certainly, I think, brought it back within the realm of investigative bias, which was the primary point that we're trying to make and throughout this case.
But maybe more importantly, the Court's ruling was that we were not allowed to present any evidence, extrinsic evidence, of a third party. But I don't know that that included that we couldn't argue reasonable inferences from what the evidence presented.
I don't think I was -- I wasn't even intending to go that far, quite frankly. I was trying to keep a little farther back from that. But I don't think that under Denny there's -- what they're talking about is presenting evidence trying to point the finger at somebody else. Reasonable inferences, I think, is another matter and I think it's reasonable inference from the evidence.
THE COURT: Mr. Kratz.
MR. KRATZ: No further argument, Judge.
THE COURT: All right. I'm taking a look at my order, after a 14 page decision, the order is that the defense is precluded from offering any direct evidence to a third party, other than Brendan Dassey participated in the commission of the crimes as charged in the Amended Information. I don't recall that I was asked to place a limit on closing argument. I think there is a differentiation between the two.
I don't know how I would have ruled on it, frankly, had I had one, because I don't know that the Denny case specifically addresses the issue. I don't know that another case specifically addresses the issue.
But my recollection is, and the wording of my order is, that it was directed to the introduction of evidence. I'm not sure that the Court can prevent the defense from arguing inferences on the evidence as it was presented. The State gets a chance to respond in rebuttal.
I don't know. I will hear further from the State if you wish, Mr. Kratz, but I'm looking at my order and it only relates to direct evidence. I don't know that I can rely on that order to address your concerns.
MR. KRATZ: If the Court excludes evidence of third party liability, and there's no evidence in the record, how does Mr. Buting think that he can comment on that evidence, or lack of evidence. He can't. I mean, it absolutely flies in the face of the third party liability court order.
In other words, Judge, to be precluded from presenting any evidence, but then to be allowed to stand up in front of this jury and say maybe Bobby Dassey is the killer, how could we possibly have notice to either predict that, or to present evidence that -- that might suggest differently. That absolutely flies in the face of the -- if not the words of the order, certainly the intent of that order.
THE COURT: Mr. Buting.
MR. BUTING: Well, Judge, as the Court I think has made clear, Mr. Avery, by his not guilty plea, means he isn't the killer, so somebody else has to be. What I was trying to do was simply point out all of the other avenues that the police could have examined and didn't.
And I think in the context, overall, of every -- everything else that I have argued in the argument, I think I'm within that. And I don't think there is anything close to a violation of the Court's order barring any kind of direct evidence.
Again, it wasn't even my intent to go outside the realm of investigative bias, failure to look at suspects. But if I did, I think in the overall context of the whole argument we have been making throughout this case, I think the jury is not going to be confused and it's going to be clear that that's the purpose for which it's being offered.
THE COURT: I -- I don't know, without doing some research, the answer to the question the State is raising here; that is, whether the logical inference from a Denny decision that denies the right to introduce evidence provide -- or prevents the defense from arguing on the basis of evidence that was presented, that there's third party liability.
Let me suggest this, as I understand what Mr. Buting is saying, he is saying, I may have gotten carried away in the way I worded it. My purpose in making the references was not to suggest that there was evidence in the record that any of these parties committed the crime, but rather that the State did not sufficiently investigate other parties.
We're still going to be hearing from Mr. Strang. If Mr. Strang, at the beginning of his argument, clarifies that point for the jury, is that sufficient to address the State's concerns?
MR. KRATZ: We would ask for an admonishment. If that's the Court's ruling, however, that the Court believes that that is a more appropriate resolution of the case, I understand that that's the Court's order.
THE COURT: Here's what I am going to do. I'm going to give Mr. Strang a chance to do that when he makes his argument, to clarify it, assuming, Mr. Strang, that you feel the way your co-counsel does about what the intention was.
MR. STRANG: Yeah, I -- More to the point, I have to apologize, I was shortening my closing argument --
THE COURT: Don't worry about it, because that's something I'm going to discuss with the parties in chambers. The juror's eyes are starting to glass over. We're looking at your closing, plus rebuttal from the State, I don't think it's fair to the jurors to keep them here as long as that may take.
I think both parties will be better served if we come back tomorrow, when the jurors are fresh. I do think, however, it's necessary to address the alternate juror issue, and I'm going to talk with the parties about that, in chambers, before we come back.
MR. STRANG: Do we want to just address, in chambers, what it is I should say, or consider saying? I'm sorry, I just missed that.
THE COURT: You will have the evening to think about that.
MR. STRANG: Okay.
THE COURT: I'm going to go off the record right now. I will see counsel in chambers for a short conference.
(Recess taken.)