3.Dassey Testimony Mistrial Motion and Ruling

MR. STRANG: There was. There is the matter that I raised, and noted that I wanted it recorded, that I had raised the matter, but it could wait for our break to raise it. I wanted to do some checking through the discovery too, before I did it.

My recollection of Bobby Dassey's testimony was that he said that on Thursday, November 3, 2005, in the presense of Bobby Dassey, and his friend, Mike -- he didn't identify him further than as "Mike" -- that Steven Avery asked if they wanted to help get rid of a body, or "the body". I'm not clear. I didn't write this down better.

But at the time Bobby said that he thought Steve was joking about that, and it was Shortly after that testimony that I interjected briefly, as I did.

We have no written summary of an interview of Bobby Dassey, in which that statement is recited. So, the immediate concern was disclosure of oral statements of the defendant, that the State intends to use at trial, I think, under Section 971.23(1) (b).

We do have a Calumet County Sheriff's Department report of a contact with Michael Osmunson, O-S-M-U-N-S-O-N, where, for counsel's benefit, and the Court's, is page 259 of the Calumet County Sheriff's Department report. That report, which is not an interview of Bobby Dassey, recites a Statement of this Michael Osmunson, that he and Bobby were inside the Dassey garage, when Steven came over, and he goes on from there.

I think probably here, the best thing for me to do is, what I will do is just read this for the Court's benefit now, and make this a Court Exhibit, page 259 of the report. The first chance I get, we will make a copy of it. I will read the relevant paragraph in its entirety.

"Michael indicated the only time he had been at the Avery property between 10-31-05 and 11-14-05 was on Thursday, 11-10-05. He stated he and Bobby were inside the Dassey garage when Steven came over. Michael indicated he was aware Steven was one of the last people to see the missing girl, and jokingly asked Steven if Steven had her (the missing girl) in a closet. At this point Steven asked Michael if Michael wanted to "help bury the body", and they laughed about this together. Michael stated he had just learned about the missing girl on the Tuesday prior to that. He once again indicated he thought Steven might have been the last one to see the missing girl." End of the relevant paragraph.

Although the following one sentence paragraph says, "According to Michael, Steven stated people go missing all the time and this girl may have left, or May, quote, "have left for Mexico." Period, close quote.

Now, although we have been told that Bobby is in the garage at the same time, there is no indication that Bobby overhears the statement. Moreover, there was a different context for the Statement laid cut here than what Bobby gave. That is, Michael himself is joking with Steven, jesting with him about having the girl in the closet. This is clearly a joking response to the jest.

We have "help bury the body", instead of "help get rid of the body". But, most significant of all, this conversation clearly takes place on Thursday, November tenth, 2005, not Thursday, November 3, 2005. And Michael Osmunson says he had just learned about the missing girl on the Tuesday prior to that. Well, that has to be Tuesday, November eighth, because on November 1, no one had reported Teresa Halbach missing.

I was not concerned about Michael Osmunson being a witness in this case. Why? Because Steven Avery was arrested on November 9, 2005, and he has been continuously in custody since then, and was not in the Dassey garage, or Janda garage, or anyone else's garage, on Thursday, November 10, 2005.

Now we have a different witness, to whom this statement has never been attributed, of which we have no summary identifying him as someone who overheard the statement, or identifying a Statement, as having been Bobby Dassey, as the individual identified, or critically identifying the statement as having been made on November 3, as a time when Steven Avery was not in custody, was at home, or in the salvage yard property, and the implication is this may have been before Teresa Halbach even is reported missing. In large part, that implication arises because we didn't have the joke that was made to Steven Avery as the precursor of this. So, what I'm left with is this jury having heard testimony from the first blood relative of Mr. Avery to testify here, his nephew and next-door neighbor, that amounts to a confession of a crime, and under the circumstances, although, technically, because Bobby is listed in the report of contact with Michael Osmunson, technically, the discovery statute here may have been complied with. I have not looked at the case law under the discovery Statutes, but, setting that aside, this comes as an unfair surprise.

It's materially different than the summary or the statement of which we have been given notice. There is no way to unwind this from the juror's minds. It has enormous unfair prejudicial impact. I can think of no remedy, short of asking for a mistrial, on the introduction of this testimony by the State on the direct examination of Bobby Dassey, without having been invited by the defense, or the defense otherwise having opened the door, or done anything to which you could say this would be an invited response.

I move, therefore, for a mistrial on the grounds I have explained.

MR. STRANG: I have one thing to add, Your Honor. This is because this is serious, and I want to get it right. I did not say this until I double- checked on the break.

But the further reason that I was not concerned, and set aside the possibility of the Osmunson statement, or the oral statement of the defendant, through Osmunson coming in, is that the State does not list Michael Osmunson on their witness list. Neither did the defense. His name, nowhere, appears on either party's witness list, and what we have here then, on reviewing this, is a materially different Statement, made at an entirely different time, and impossible to have been made on the day that Mr. Osmunson Says it was made that day.

So, it's not entirely consistent, in the sense that he expresses no uncertainty about it having been November tenth, Thursday, and says that is because he had learned of Teresa Halbach being missing on the preceding Tuesday, which only could mean not earlier than Tuesday, November eighth, as the Court notes. On that record, I can stand.

MR. STRANG: First, we have not interviewed Bobby Dassey. Second, the report, which the Court now has a copy of, and I ask to be made part of the court record as a Court Exhibit, again, is that he, Michael, and Bobby were inside the Dassey garage, but, from that point forward, describes this as a conversation between Michael and Steven.

So, the remedy here is not to repeat this statement, again and again in front of the jury, or call another witness to change the date. the comedy here is a mistrial, or something that effectively would erase this testimony from the jury's consideration, because, again, it's a materially different statement, under different circumstances, on a different date. That has an all-together different meaning, and it becomes something a killer would have done, as we sit here.

As the statement was presented to us, it was impossible to have been made. It was false on its face. So, if there were a remedy, short of a mistrial, and I don't think that there is. But if there were a remedy, short of that, it would be something like the Court instructing the members of the jury that testimony was given concerning a statement that Mr. Avery supposedly made to Bobby and Mike, his friend, on November 3, and that the statement was not made, the testimony was false.

It was not made, and the testimony about it was false, and at that point, the Court, I think, if it were going to adopt a remedy, short of a mistrial, would roll into it, with that instruction, and connect it with the Falsus in Uno Instruction, about Bobby Dassey's testimony, inviting, but not instructing the jury that it may disregard, as false, all of Bobby Dassey's testimony because of his false testimony on this point.

I don't know if that would suffice, but that comes much closer to a remedy than repeating it, and, you know, remaking the statement over and over, again, on cross examination, or with another witness, in front of the jury.

I don't have case law at hand, on whether the page 259 of the Calumet County Sheriff's Department report, technically, suffices under Section 971.23(1) (b) or not. I'm assuming here, for the sake of argument, because we are told that Bobby is somewhere in the garage when the statement purportedly is made, I'm assuming, for the sake of argument, that the State is just on the right side of the line on discovery.

But, I have also laid out the practical problems, and a good argument could be made, and I will make it, if there is case law to Support it, a good argument can be made that the statement testified to here is so materially different in date, time, and content, than the statement of which we were given notice, that they are not the same oral statement. But, in any event, I don't think the Court has to resolve that. The damages and the problems are clear, and are serious.