6.Argument on Uncontested Facts and Defendant’s Silence
16 linesTHE COURT: You may be seated. Mr. Strang, you have something you wish to place on the record at this time?
MR. STRANG: I do. Thank you. I initially interrupted Mr. Kratz's argument, reluctantly, and trying to be polite and somewhat circumspect about my comment that it was unwise and improper to describe facts as uncontested. I waited until we got to the PowerPoint slide that said fact number four, and by my recollection, that was the fourth time that the -- counsel for the State returned to the theme of an uncontested fact.
As I say, I was trying to be circumspect, but the concern, of course, was that this comes too close to commenting on the decision of the defendant not to take the stand. Or, for that matter, not to offer witnesses that he did not.
Mr. Kratz, in responding to my interruption and objection, I think made the problem substantially worse. I don't have committed to memory, we could go back to the court reporter's notes if we need to, but the rejoinder from counsel for the State was that, you know, if you remember a witness being called, or if you remember someone saying this didn't happen, something to that effect, well, then that's fine, but, of course, the suggestion was that the witness was not called and no one did speak up to contest the fact.
Doesn't warrant a mistrial, but comes way too close to commenting on the Fifth Amendment privilege not to testify and I think warrants some curative step, either by counsel himself, or by the Court, or both.
THE COURT: Mr. Kratz.
MR. KRATZ: That's absurd, Judge. I get to, on closing argument, suggest that Mr. Strang is going to place a theory of defense into play in this case. There's absolutely no evidence that would suggest that. If there are facts that I believe have not been contested, either by cross-examination, or are not contested through the defense calling its own witnesses, that's fair game for me to comment upon.
I have not, and I will not, comment on Mr. Avery's decision not to take the stand. I understand and the jury has been instructed that the defense, or the defendant, I guess, is how the instruction reads, has no burden in this case, but certainly if something is not contested, if there is a fact that I believe has been proven and is an important part of the State's theory of the prosecution and there hasn't been a challenge, at least through evidence in the case, I feel very much so entitled to comment upon that.
THE COURT: Anything else, Mr. Strang?
MR. STRANG: Well, it's certainly fair game to argue what the State, or for that matter the defense, thinks the evidence shows. It's fair game to argue -- a little bit more dangerous for the State, I suppose -- but fair game to argue what the evidence does not show, draw conclusions from the evidence.
But describing something as uncontested or, you know, we could go to other cases, this word hasn't been chosen here, but we could go to other cases where un-rebutted or unchallenged comes, I think, way too close to commenting, not on the strength of the evidence, or the conclusions, affirmatively, the State wants drawn, but on the decision of the defendant not to testify to something himself, or not to call a witness on a point. And I don't think the suggestion was absurd at all. But that's at least for this Court, in the first instance, to decide.
THE COURT: All right. The note I took down at the time the objection was made that the specific alleged fact involved I believe had something to do with the vehicle being transported to Madison for inspection. Frankly, that wasn't something that struck a chord in my mind that somehow there was any relationship with the defendant's decision not testify.
I appreciate the fact defense counsel has alerted the Court to that possibility. I agree that the -- there is the potential, when you start using the approach that's been used as far as undisputed facts, I can see where it could lead to that. I do not know what the rest of the State's argument is going to be.
At least based on what I have heard so far, I do not believe it relates in any way to any suggestion to the jury that somehow they should take the defendant's failure to testify into account in evaluating the State's evidence, based on the facts that have been discussed.
MR. STRANG: And I -- I want to add, I will -- I will go one step further, I agree with the Court that the particular fact described, where actually Mr. Kratz quite acceptably is using fact number one, and fact number two, fact number three, really, to describe a constellation of facts around some single event, I agree that -- and I haven't moved for a mistrial -- that this was not a topic on which a juror would say, boy, the one who probably has the best knowledge about that is Mr. Avery. And that's something exclusively within Mr. Avery's knowledge.
I agree and I will go the one step further and say that facts one, two, and three, similarly, were not matters that immediately would suggest whether the defendant is in the best position to know. I used the term, initially, unwise and incorrect, because I wanted to alert counsel and the Court, that if, you know, we could get to a point where this would become a real serious concern.
Unfortunately, the response made the concern more immediate. Still not rising to the level of requiring a mistrial, in my view, and perhaps the Court's admonition now will be enough, but I -- if -- if we go much further down there, I will be heard again.
THE COURT: I'm assuming that both parties are aware there are permissible and impermissible ways of suggesting the same thing. If the State says there's no evidence in the record to show this or that, then that's generally okay. But if the argument relates to something that might implicate the defendant's decision not to testify, and the language, whatever it may be, is construed as something that somehow the defense should have produced, then that danger arises.
I'm assuming that all counsel for the State understand that. I haven't heard that yet. And I'm trusting, Mr. Kratz, we're not going to have to go there.
MR. KRATZ: Except on the planting issue, Judge, where the defense has affirmatively put that into play. The State didn't. And as to, have we heard anything about planting, I do intend to go into that. And that may be on rebuttal. I may wait to see what the defense does. And with the Court's comments, I may, in fact, do that.
But I at least want the Court to understand that since the defense has asked for the theory of defense, and since the defense has intended, throughout this trial, to discuss planting of evidence as its theory, I think my comment on the lack of evidence, at least on that issue, without mentioning Mr. Avery, without mentioning his decision to testify or not, is certainly fair game in my argument, or whether I choose to do it now, or whether I choose to do it in my rebuttal.
MR. STRANG: Well, and you'll know when we get there. I simply would point out now that planting and being framed is not an affirmative defense. It's not something on which a defendant has a burden of production or going forward, let alone a burden of persuasion. So this would be different if the defense here were self-defense, or involuntary intoxication, something like that, it's an affirmative defense.
I, too, trust counsel is aware of the boundaries and now I have elaborated my concerns. But I do want to be clear, the defense that's been presented here is not an affirmative defense. So we'll ...
THE COURT: All right. I'm sure, now that the matter has been brought to the parties' attention and the parties will be careful about it. We'll take a break at this time. I guess we will be resuming in 10 minutes. The jury gets a little longer.
(Recess taken.)
THE COURT: Mr. Kratz, I understand you are now on mike seven.
MR. KRATZ: I am. I switched mikes, Judge, they couldn't hear in the back, so. I don't think the jury was having a problem hearing.
THE COURT: All right. You may resume.