6.Dassey Cross-Examination Deferral and Witness Order
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MR. KRATZ: The state understands, Your Honor, that the defense has asked for an Opportunity to defer its cross examination of Bobby Dassey until the beginning of court tomorrow. We understand that the State, excuse me, the defense, wishes an opportunity to interview Mr. Dassey sometime yet this afternoon, and the State is prepared to call Trooper Austin, and have him present his testimony before the Cross-examination begins, which, as I understand, the defense has asked for leave to commence that tomorrow morning.
THE COURT: Mr, Strang?
MR. STRANG: I had suggested in chambers that our conclusion and the defense's Statement was that we did need to interview Bobby Dassey before cross examining him, and that we wish to cross examine him only once, so as not to draw undue attention to him, or to any part of his testimony. Because that is an interview that is of unpredictable length, and will take us in different possible directions, some of which I can predict as possibilities, and I'm not sure I can predict all of the possibilities, I had asked that we have the balance of the day to do that, and that we Start tomorrow morning with the cross examination of Bobby Dassey, so that, for the jury, this just flows sequentially, and, you know, the fact that the Court had to resolve some issues is all the jury would know.
In chambers, as T understood the Court, it was unwilling to adjourn for the afternoon and start up again tomorrow morning. I object to taking another witness, out of order, because I expect that, as I understand this trial, then Bobby Dassey will be the only witness, whose Cross examination did not immediately follow in order with his direct examination. That is, it was broken up by another witness.
The Court, of course, controls the mode and the order of the interrogation of witnesses. But this does tend to highlight him, and also it leaves us attending to Trooper Austin, which that time probably would be better used and should be used in interviewing Bobby Dassey, and adjusting the cross examination of Bobby Dassey.
Accordingly, doing a one-and-a-half, or one-hour witness, is better than having no time to interview Bobby Dassey at all, to be sure. But I don't think this is an adequate remedy, and as [ forecasted in chambers, and won't repeat here, there are a number of possible issues that we may need to visit or revisit, depending on the results of the conversation with Bobby Dassey.
But, in any event, I do ask the Court then to exempt us, or to Carve an exception for Mr. Buting, and myself, and our defense investigator, this afternoon, so that we can talk to Bobby Dassey here, during the midst of his testimony, so to speak.
But we would ask that the Court's earlier order remain in place, for agents of the State, other than Ms. Leverenz, who, of course, as a Practical matter, has to have some communication with Bobby Dassey about the Court's schedule and plans.
THE COURT: Mr. Kratz?
MR. KRATZ: Thank you, Judge. As the Court Know, in chambers it was the State's request that the defense proceed directly with cross examination. I will have an exhibit marked for the Court, which I alerted the Court, and reminded counsel that they already had in their possession, pages 516 and 517 of the Sheriff's Department discovery, which is now a second place within the material that Mr. Strang already had, which alerted the defense counsel to the substance of, and the surrounding circumstances of the interview that Mr. Dassey mentioned in his direct testimony.
To suggest to this Court, at this time, that it was not until this very moment that the defense realized the Significance of Bobby Dassey, when they have known for well over a year that Bobby Dassey was the last person, other than their client, to see Ms. Halbach alive, and walking toward Mr. Avery's trailer, to Suggest it's only now that they believe it important to interview Mr. Dassey, the State believes to be disingenuous.
That not withstanding, Your Honor, we understand why the defense has made this request. We do disagree that, after Mr. Strang and Mr, Buting have an Opportunity to interview Mr. Dassey, that the State should somehow be prohibited or precluded from, ourselves, interviewing or speaking with Mr. Dassey. That is a separate issue, of course.
And with that exhibit now having been provided to the Court, we don't believe that we have any further need to make any further record on this issue. Thank you, Judge.
MR. STRANG: I acknowledge that I have had in my possession pages 516 and 517 of the Calumet County Sheriff's Department report. It's not well Over a year, of course, because Mr. outing and 1 have first entered Our appearances less than a year ago in this case. But we have had those, that report, and those two pages, for months, and, in any event, I wish that the question of the interviewing of Bobby Dassey were as easy as whether he is important or not.
That is not the question. There are a whole lot of other dynamics at work here, such as the availability of witnesses, and the allocation of resources, and some of those things. We don't need to rehash all of the arguments about why the defense had wanted a trial date later than February 5, 2007. But it's not ali that easy.
I can say, and should Say, that we have not interviewed Bobby Dassey at any time, and we hope to be able to do that today. And the issue, in the end, I think under Section 971.23(1) (b) comes down to the meaning of "witness", and whether here we were provided notice by the State that Bobby Dassey will be a witness to testify to the oral statement at issue, materially different as it is from Mr. Osmunson's rendition, and some differences from the second-hand rendition from another witness, in pages 516 and 517, in Just recounting to a law enforcement agent what Bobby Dassey Supposedly said to him, about what Steven Avery said, in Bobby sassey'e presence. a
So, I think we have got a record. TI have made, and I will renew the mistrial motion, and the request for lesser relief, with the least-favored alternative being given the afternoon here to attend just to Bobby Dassey, and resuming the trial with the jury tomorrow morning, with Bobby Dassey's cross-examination.
I understand the Court has ruled on that. I just wanted to make Our position clear.
THE COURT: All right. First of all, the Court has already denied the motion for a nistrial, and I have heard nothing to make me Change that. Since the matter was brought up on the record this morning, the State has presented the Court with another piece of discovery, which makes cotovence a little more directly to the Statement that was the Subject of the defense motion here, a
Given the fact, never the less, that the witness himself, in his Own statements, apparently, did not make reference to the information contain: in the other two documents, that highlighted the witness' exposure to this alleged Statement on the part of the defendant, I agree that the defendant Should be permitted some time to explore this issue and to interview the witness,
I have not been Presented a reason why such an interview should require hours of preparation, since the defense has had the Opportunity to interview this witness for as long as this case has been pending. There is only one narrow issue, specifically, the witness' testimony as to one statement on the part of the defendant, that gives rise to the need for another interview.
I'm confident, if we break a little earlier today, and the defense has an opportunity to interview the witness, that should be sufficient to address any problem that may exist.
I do agree, under the circumstances, that the defense should have the right to interview Mr. Dassey first. But, under the circumstances, I see no reason to prohibit any representative of the State from interviewing Mr. Dassey later.
Again, for those reasons that have been Stated earlier, we are talking about one eatery narrow statement here, that is referenced in at least two different Spots in the discovery that was admittedly provided to the defense. I think the remedy the Court has ordered should be sufficient to address this issue.
Likewise, I don't believe -- The Court will simply inform the jury, for the convenience of the parties and the witnesses, we are going to hear from Officer Austin, and the Cross examination of Mr. Dassey will be completed tomorrow morning. That happens on a fairly routine basis in many trials for a variety of reasons, and the Court has never known that to be something that is likely to influence the jury in any way.
So, at this time we will bring the jurors back in, Then, Mr. Kratz, you can call your witness.
MR. KRATZ: Thank you
THE COURT: What was the exhibit number of pages 516 and 517?
COURT CLERK: Exhibit 99.
THE COURT: Okay.
MR. STRANG: Don't we have another issue?
THE COURT: There is another issue that I will take up tomorrow morning. I don't believe it was required to be taken up now.
MR. STRANG: Okay.
MR. KRATZ: Judge, regarding Mr. Austin, I told the Court that Mr. Austin intends to explain his process through a power point demonstration, which, after we're concluded, I will mark and make part of the record. I do have a hard copy for the Court to follow along. I have provided Mr. Buting and Mr. Strang with a COPY, as well, so they can follow along.
And, finally, as I alerted the Court, later in this trial, some of these computer images may be, in fact, referred to in a small sub-set of these images. I also have some four-by-six images made to complete the record. I will Provide those and have those marked, as well, to be identified by this witness, at the conclusion of his testimony.
But I will give the Court and the Clerk the exhibits here, and the Court can follow along with the power point demonstration, as well.
We are prepared to proceed then.
THE COURT: Very well.
(At which time the jury came into the courtroom. The following proceeding continued in the courtroom, in the presence of the jury.)
THE COURT: You may be seated. Members of the jury, for reasons relating to availability of witnesses, we are going to take a witness out of order at this time. The defense will be conducting its cross examination of Mr. Dassey tomorrow morning, and the State is going to call another witness at this time.
Mr. Kratz?