1.Excused Juror and Stipulation to Substitute the Alternate
29 linesTHE COURT: At this time the Court, again, calls State of Wisconsin vs. Steven Avery, Case No. 05 CF 381. I will indicate that we are on the record at this time, outside of the presence of the jurors. Will the parties present state their appearances for the record, please.
MR. KRATZ: Good morning, Judge, the State appears by Calumet County District Attorney Ken Kratz and Assistant Attorney General Tom Fallon as Special Prosecutors.
MR. STRANG: And good morning as well, Steven Avery in person and Jerome Buting and Dean Strang on his behalf.
THE COURT: All right. Before I get to the specific reason that we're going on the record this morning, I wanted to address an item that came to the Court's attention yesterday, after the jurors began deliberations. There were a couple of requests from the jury for accessories, if you will, to assist them in their deliberations.
Specifically, at about 1:20 in the afternoon the jurors requested a magnifying glass, because of the size of the photos that they received. And at 2:30, the jurors request a dry board, a flip chart, or something along those lines, that they could use in the course of their deliberations.
When requests like this are typically received, the Court generally will, informally, discuss with counsel if any of them have any problem, but normally the Court simply sends the items back. It's practice and, in fact, it's required to go on the record whenever a question is received from the jury, but normally it's this Court's practice and counsel confirmed yesterday that they did not see a need to go on the record for the requests that were made by the jury.
One difference in this case is that the Court has been alerted that the media interest in the juror deliberations extends to the request of the nature of those that were made yesterday. And the Court was, frankly, simply not thinking about that yesterday afternoon.
But it would be my proposal, if there's any requests like that received in the future, although we may not go on the record for them, if either party feels the need to do so, I will, after any such requests are acted on, simply pass information to the media coordinator and alert all the media of what happened. Is that procedure acceptable to both parties?
MR. KRATZ: Yes, judge.
MR. STRANG: Yes.
THE COURT: The next item has do with one of the jurors in this case. Last evening, sometime around 9 p.m., the Court received a telephone call from Sheriff Pagel indicating that one of the jurors had presented a request to a -- one of the supervising deputies over at the hotel, to be excused because of an unforeseen family emergency.
The Court, mindful of its duty to exercise reasonable efforts to void the discharge of a juror, once deliberations have begun, nevertheless, concluded that based on the information provided, the request appeared to have merit and warranted further consideration.
After I received the information, I contacted Attorney Kratz and both defense counsel by telephone conference call to inform them of the request. Counsel agreed that if the information that had been presented to the Court was correct, excusing the juror was appropriate in this case.
Counsel further authorized the Court to speak with the juror individually and excuse the juror if the information provided to the Court was verified. The Court did verify that information with the juror and excused the juror last evening.
Case law in Wisconsin provides three alternatives in a situation now before the Court. One alternative is that the parties can stipulate to proceed with 11 jurors.
The second alternative is that the parties can stipulate to substitute an alternate juror. In this case the Court has previously sequestered one of the alternate jurors to be available for that purpose, if it became necessary.
The third alternative is to declare a mistrial in the absence of a stipulation by the parties to proceed with one of the other two alternatives.
It's my understanding that at this time the parties do have a stipulation to present to the Court. Mr. Strang.
MR. STRANG: Your Honor, thank you. Mr. Avery and his counsel are willing to offer their agreement to pursue the following course: One, if the Court gives a proper instruction that jury deliberations must begin entirely anew. And, two, if each of the 11 presently deliberating jurors provides satisfactory assurance that they can and will follow an instruction to begin deliberations anew, then, three, the defense will agree that the person who has been the alternate to date should join the ranks of the 11, becoming the 12th regular juror and the deliberations may begin anew with this newly composed group of 12.
If the State thinks the three aspects of this agreement acceptable, the defense, too, will be bound by it. And we have discussed that with Mr. Avery. It has his concurrence and he understands that the Court will want to make brief personal inquiry of him as well.
THE COURT: Thank you. Mr. Kratz.
MR. KRATZ: Judge, the State joins in the stipulation. After our conversation last evening where the Court discussed the options, and after hearing, this morning, of the defense willingness to enter the stipulation, the State agrees that the alternate juror, who was reserved just for this unusual circumstance or occasion, that -- that the Court do just that. And so we join in Mr. Strang's request that the Court adopt and approve this stipulation.
THE COURT: All right. As a supplement to Mr. Strang's request, I should indicate for the record that I did meet with counsel in chambers before we began today and went over a proposed instruction to the jury and question for the jurors to make sure that they could follow the Court's instruction.
The Court prepared that instruction with input from both of the parties. And Mr. Strang when you refer to an appropriate instruction, I'm assuming you are referring to the one that was discussed in chambers today.
MR. STRANG: The instruction that the Court read to us in chambers this morning, after hearing input from both sides, we think a proper instruction.
THE COURT: Thank you. All right. Then, Mr. Avery, I do have a few questions to ask of you at this point. First of all, have you heard the discussion that we just had, on the record, and the proposal of how to address the issue of the excused juror?
STEVEN A. AVERY: Yes, sir.
THE COURT: Have you taken some time this morning to discuss this matter with your attorneys?
STEVEN A. AVERY: Yes, sir.
THE COURT: Are you aware that you are under no obligation to join in the stipulation, that is, you have the right to require a jury of 12 and the right to request a mistrial if the juror is excused.
STEVEN A. AVERY: Yes, sir.
THE COURT: Do you feel that you need any more time to consider your decision on this issue?
STEVEN A. AVERY: No, sir.
THE COURT: Are you in agreement with the stipulation that has just been placed on the record by your attorney, Mr. Strang?
STEVEN A. AVERY: Yes, sir.
THE COURT: Very well, the Court finds that the parties have jointly stipulated, and the defense has stipulated with the knowing and voluntary consent of the defendant, to recall the alternate juror in this case and allow the jurors to begin deliberating anew, following an instruction from the Court as to how those deliberations are to proceed.
Is there anything else that either party wishes to bring up on the record before we bring in the jurors?
MR. KRATZ: No, your Honor.
MR. STRANG: No, thank you, your Honor.
THE COURT: And I believe it's the understanding and agreement of both parties that, when the jurors are brought in, we'll be bringing in the remaining 11 original jurors and the alternate to take the seat she normally takes.
MR. STRANG: Yes, and, that because this procedure, very soon, will require naming jurors, that arrangements have been made with the media to preserve the Court's requirement that jurors not be named publicly.
THE COURT: All right. I will cue the media, the camera operators, when that time comes in the instructions. At this time, then, we can bring in the jurors.
(Jury present.)