2.Thomas Fassbender — Direct/Cross/Redirect/Recross/Redirect
1,527 linesMR. KRATZ: State will call Tom Fassbender, your Honor.
SPECIAL AGENT THOMAS FASSBENDER, called as a witness herein, having been first duly sworn, was examined and testified as follows:
COURT CLERK: Please be seated. Please state your name and spell your last name for the record.
THOMAS FASSBENDER: Tom Fassbender, F-a-s-s-b-e-n-d-e-r.
DIRECT EXAMINATION BY ATTORNEY KRATZ:
MR. KRATZ: Mr. Fassbender, how are you employed?
THOMAS FASSBENDER: I'm a Special Agent with the Wisconsin Department of Justice, Division of Criminal Investigation.
MR. KRATZ: How long have you been a law enforcement official?
THOMAS FASSBENDER: Almost 27 years.
MR. KRATZ: What is the Department of Justice?
THOMAS FASSBENDER: The Wisconsin Department of Justice run under the auspices of the Attorney General in Wisconsin.
MR. KRATZ: There's a law enforcement branch to that division or department; is that right?
THOMAS FASSBENDER: Yes, that's the Division of Criminal Investigation, DCI.
MR. KRATZ: Do you have a specific area of authority with DCI?
THOMAS FASSBENDER: Yes, I'm currently with Special Assignments Bureau within DCI. DCI is broken up into several different areas and bureaus, and that is where I am. And the primary purpose of Special Assignments Bureau, amongst other things, would be homicide investigations or death investigations.
MR. KRATZ: And why does DCI typically assist, or why are they assigned homicide investigations?
THOMAS FASSBENDER: Due to the complexity of those types of investigations at times, and with the size of them, and a lot of times you have counties that maybe have one detective or two detectives, and DCI is there to assist in those instances.
MR. KRATZ: Is it common for DCI to take over an entire case or does DCI typically help other agencies?
THOMAS FASSBENDER: DCI typically assists.
MR. KRATZ: I'm going to direct your attention, Agent Fassbender, to November 5th of 2005, ask if the Division of Criminal Investigation received a call on that day to assist in an investigation?
THOMAS FASSBENDER: Yes, we did.
MR. KRATZ: Could you describe for the jury how that happened.
THOMAS FASSBENDER: A sheriff from Calumet County, Jerry Pagel, contacted DCI, I believe the administrator for DCI, and asked for our assistance at that time, which was still a missing persons investigation being conducted.
MR. KRATZ: Did you personally respond?
THOMAS FASSBENDER: Yes, I did.
MR. KRATZ: And where did you go and what time did you get there?
THOMAS FASSBENDER: I received a call at home. I probably departed that area, or my residence, about 1:00. Picked up another Special Agent and headed to the Avery Salvage Yard, the Avery properties, and probably got there just a little after 2:00 p.m. that day.
MR. KRATZ: Sometime at or about 2:00 p.m., were you involved in, that is, did you participate in discussions regarding who was going to lead up or be in charge of this investigation?
THOMAS FASSBENDER: Yes.
MR. KRATZ: And could you recount those discussions for the jury, please.
THOMAS FASSBENDER: Upon arrival at that scene, I met with -- I know for sure, Jerry Pagel, the Sheriff of Calumet County. And I was advised that the Manitowoc County Sheriff's Department had asked the Calumet County Sheriff's Department to take the lead role in the investigation.
And let me advise that the investigation pertained to Teresa Halbach. And the reason we were at the Avery Salvage Yard was that her vehicle had been found on that property.
MR. KRATZ: Did you, on behalf of the Department of Justice, agree to assist and participate in this investigation?
THOMAS FASSBENDER: Yes.
MR. KRATZ: As the investigation unfolded, could you identify for the jury other law enforcement officers -- excuse me -- other law enforcement agencies that were involved in this investigation?
THOMAS FASSBENDER: Of course Calumet County Sheriff's Department, DCI, Manitowoc County Sheriff's Department, Manitowoc Police Department, Two Rivers Police Department. Some smaller police departments in Calumet County, New Holstein, I think Brillion, I think Kiel. Winnebago County Sheriff's Department with a dive team. Brown County Sheriff's Department assisted in a capacity. I'm not real sure what capacity that was at this moment. FBI has assisted with technical assistance. Marinette Sheriff's Department.
MR. KRATZ: That's just the law enforcement agencies?
THOMAS FASSBENDER: Yes.
MR. KRATZ: Were there other support agencies that assisted?
THOMAS FASSBENDER: Yes.
MR. KRATZ: Name some of those, if you can recall.
THOMAS FASSBENDER: Various fire departments, volunteer fire departments from both Calumet County and Manitowoc County, Great Lakes Search and Rescue, would be an example of who we just heard from.
Wrecker services, implement dealerships, citizen search groups, pilots. I -- I imagine I could go on for a little while yet, but I can't think of them.
MR. KRATZ: I guess my question, Agent Fassbender, in the over 25 years of experience that you have had, especially in homicide investigations; have you been involved in an investigation with this many agencies and this many resources being assigned to one case?
THOMAS FASSBENDER: No, sir, I have not.
MR. KRATZ: You mentioned the Manitowoc County Sheriff's Department's role. As lead investigator, or as one of the two individuals assigning responsibility to allocate all of these resources that we're talking about, could you describe what Manitowoc's role was contemplated to be.
THOMAS FASSBENDER: Yes, it was decided that they would assist in the investigation in a support capacity or an assistance capacity. It was their county. They knew the resources. They had the contacts for such things as wrecker services, implement dealerships, if we needed equipment, and various other things that would have came up, many other things that probably came up during this investigation on scene.
MR. KRATZ: Were you able, and have you been able, to attach a number, that is, how many different individuals, both the law enforcement and support services, that were involved in this investigation from start until today?
THOMAS FASSBENDER: A total number?
MR. KRATZ: Are you able to do that or not?
THOMAS FASSBENDER: I can get close day by day, but I have never attached a total number, no.
MR. KRATZ: The allocation of the resources, the assignment, your decision to assign specific officers to specific duties, how were those decisions made?
THOMAS FASSBENDER: Basically, it was a group decision, as team work. And we had two lead investigators on the case, so-called, myself and Investigator Mark Wiegert from the Calumet County Sheriff's Department. The sheriff was out there. We had other detectives and investigators out there. And what commonly would happen is, like when I got there initially on Saturday, there was a briefing.
And I was briefed as to what was happening, what had happened. We would get together and make decisions on where we want to go and what we want to do. After activities are completed, for example, like at the end of the day, we would have a debriefing session where we would meet and we would talk to the investigators, searchers, interviewers, neighborhood canvassers, and try and get a report back on the information that they may have come across or evidence that they may have found. And we digest that, and as a group or as a team, we try and decide what do we want to do next, where we want to go with this.
MR. KRATZ: The resources that were available to you, again, whether it's law enforcement, for now let's limit it to law enforcement resources. Did officers that were presented to you, and law enforcement assets that were presented to you, have different levels or degrees of experience in various law enforcement areas?
THOMAS FASSBENDER: Certainly, yes.
MR. KRATZ: And was that factored into your decision on who to assign to what task?
THOMAS FASSBENDER: Most definitely.
MR. KRATZ: Can you give some examples.
THOMAS FASSBENDER: Obvious example is, if we were going to search for evidence, the location of evidence, which may involve the collection and processing of evidence, I want someone that's trained and experienced in that area to do those searches.
In this instance, we had the Crime Lab there on and off at this scene. We utilized them to go to some various areas, or spots where evidence was found, because obviously their people are trained in that area.
MR. KRATZ: Are there other -- or are you familiar, as a law enforcement officer and homicide detective, are you familiar with evidence technicians, or law enforcement officers that have that specialized training also?
THOMAS FASSBENDER: Certainly, with most departments, counties, police departments, they have individual officers on their department that have received additional and specialized training in the collection, processing, preservation, etcetera, of evidence. And those are the types of people that -- or officers, excuse me, that we're going to want doing that task.
MR. KRATZ: What kind of a case did this start out as?
THOMAS FASSBENDER: Missing person case.
MR. KRATZ: And in those very early stages of this investigation, what was your primary goal in the missing persons investigation? Do you understand my question?
THOMAS FASSBENDER: I imagine the primary goal in a missing persons investigation would be to find the missing person.
MR. KRATZ: Was that your goal in this case?
THOMAS FASSBENDER: Yes.
MR. KRATZ: Now, at some time -- and we're going to hear about the first 11 days or so, in fact, we're going to hear about 15 months worth of investigation, but for the first day, the first hours of this investigation, was your goal different than it became throughout the rest of the week and, in fact, for the last 15 months?
THOMAS FASSBENDER: Yes.
MR. KRATZ: How was it different?
THOMAS FASSBENDER: In the fact that we were searching for, and hoping to find, Teresa Halbach alive.
MR. KRATZ: Agent Fassbender, decisions that you made in this case, would those decisions, and were those decisions in this case, different when this was a missing persons or searching for Teresa alive and did that change sometime over time? That's a really awkward way of asking that, but are there different decisions that are made when you are looking for a live body, rather than being involved in a criminal ongoing investigation?
THOMAS FASSBENDER: It depends on when you're talking and when I got there, or as opposed to Thursday, when she was first reported missing, there's differences. When I got there, even though we were still in a missing persons capacity, I'm taking on a little different light to this and I'm coming in thinking that something bad had happened.
And we do that because we don't -- we don't want to miss anything. We may get one chance at this, and it's easier to prove or disprove that maybe something bad happened than to go the other way and not have the evidence or the scene to work with.
MR. KRATZ: I understand. Let's talk kind of globally or big picture about a search plan. First of all, were you one of two law enforcement officials that were directing search efforts in this case?
THOMAS FASSBENDER: Yes.
MR. KRATZ: Did you have an overall plan, or an overall search plan for not just the first day, but the first week of this investigation?
THOMAS FASSBENDER: Generally, I think you can have an outline or an overall search plan to start with, but as I mentioned before, it's fluid. It may change depending on evidence found, or information from interviews brought back, or neighborhood canvasses, stuff like that. It needs to remain fluid, you can't have that lock and load mentality and say this is what we're going to do. It may change.
MR. KRATZ: Let's talk specifically, then, about your search plan the first day, or even the first hours. What was your first search plan, or your first plan of attack, just after search warrants were obtained from, I think it was Judge Fox in this case?
THOMAS FASSBENDER: Well, number 1, in any investigation, a homicide or death investigation, I should say, is life is first and foremost, always. Check for life, find life, and treat it, even at the cost of maybe losing evidence. So, in this case it was no different. We needed to find, to see if Teresa is on that property and if she's alive.
So we organize a sweep. Law enforcement officers, we call it a sweep, but basically what they are doing is sweeping through the buildings on the property to see if Teresa is in any of the buildings. Along with that is also a concern for officer or other people's safety. That's a secondary concern on a sweep, is there anyone else on the property that could be a concern for law enforcement safety. So the sweeps were organized with the law enforcement officers we had present.
MR. KRATZ: Is that the first thing that law enforcement does is sweep through these -- talking about the residences now?
THOMAS FASSBENDER: Most always, yes, that's the first thing we do.
MR. KRATZ: And what kind of distinction is a sweep versus a search of a property?
THOMAS FASSBENDER: Well, this property was a little different. On a normal death scene, you are sweeping there to check for life and for safety. And maybe you have to bring EMT's in, and other people, a coroner. You can't bring them into that scene unless you know that scene is secure and safe. The same thing here, essentially, to make sure, to the best of our ability, a scene that size, that it's safe and to determine why or if -- check to see if we could find Teresa.
MR. KRATZ: Was that done in this case?
THOMAS FASSBENDER: Yes.
MR. KRATZ: Were all of the residences on the Avery property swept?
THOMAS FASSBENDER: Yes.
MR. KRATZ: Were all of the business buildings and other outbuildings swept?
THOMAS FASSBENDER: Yes, sir.
MR. KRATZ: After that sweep was performed, and we may get into this after the break, but my last question at least for this part of your examination is, did your search efforts then become more directed or more detailed?
THOMAS FASSBENDER: I'm going to add to my answer here. We had the sweeps, and as we heard already, the dogs were brought in, and a dog was utilized specifically in certain areas, the car crusher, the line of cars along the south berm, some of the residences, and the buildings.
Not just one dog, I believe nine dogs were brought in. And then they were also utilized to sweep the property, the vehicles, the salvage yard property, 4,000 plus vehicles. They were working and they were accompanied with law enforcement officers at this time. And then, yes, then we started talking about where are we going to go from here. Are we going to get more detailed or what are we going to do.
MR. KRATZ: With that, then, Judge, I think this is a good time for our morning break.
THE COURT: All right. The Court agrees. Members of the jury, at this time we'll take our morning break. I remind you, again, not to discuss the case in any manner during the break. And we'll resume in about 15 minutes.
(Jury not present.)
THE COURT: Before breaking, the record should request (sic) that the parties requested two brief side bars this morning. The first one was a defense inquiry as to whether or not the State had a copy of Julie Cramer's report, which it turned out they did and that was used.
The second more brief side bar was Mr. Kratz asking the Court if we should hold a break or begin Mr. Fassbender's testimony, and we did. Does that reflect counsel's understanding of what transpired?
MR. STRANG: It does. And just so it's clear, we have -- the defense has a copy of that report. I just didn't happen to put it in my file so it's not that it hadn't been turned over, it was.
THE COURT: All right. We'll resume with Mr. Fassbender's testimony in 15 minutes.
(Recess taken.)
(Jury present.)
THE COURT: Okay. Mr. Kratz, you may resume your questioning of the witness.
MR. KRATZ: Thank you.
DIRECT EXAMINATION CONTD. BY ATTORNEY KRATZ:
MR. KRATZ: Agent Fassbender, you had previously told us about a search plan or methodology that first includes a sweep securing the area, looking for a live body. And that was, in fact, performed in this case; is that correct?
THOMAS FASSBENDER: That's correct.
MR. KRATZ: In your search methodology, after that is completed, that is, after that sweep is completed, what's the next level of searching that you had performed on the 5th?
THOMAS FASSBENDER: At this point, we're probably back at the command center taking in information and briefing each other. I know we still had dogs searching the salvage yard, perimeters of buildings, at that time.
The Wisconsin State Crime Laboratory from Madison, Wisconsin, had been called earlier on and had arrived at the scene, somewhere around 4:00 in the afternoon probably. And they were -- although they went to some different areas on the property there, their primary purpose was to process and take care of the RAV 4 that was found on the property, Teresa's SUV.
While that was going on, a decision was made to start the search of the buildings, residences, and a team, a evidence location collection processing team, was put together to start that process. With the individuals we had -- or the personnel we had on site, we were able to come up with one team of four individuals to start that process. And they started at Steven Avery's trailer down at the end of the driveway to the west, and they started that about 7:30.
MR. KRATZ: Before we get into individual searches, Agent, I'm wondering if we can talk, at least in more general terms, as to your search plan, or your search methodology, not necessarily where specific places were searched, but if there was, in fact, a generalized search plan?
THOMAS FASSBENDER: Well, certainly. And in death investigations normal scenes, generally, like I said before, we determine if there's life and if there's a deceased or a corpse on the scene.
After that, you secure the scene and limit, generally, the number of people that go into that scene. Secure evidence, look for evidence, possible witnesses at the scene that you may want to speak to or detain immediately, so you don't lose them, and get a search warrant.
And in this case, we basically did those things, maybe a little different. We got the search warrant. And, again, generally, in a lot of these scenes, you don't necessarily know exactly what you're looking for, maybe on the first search.
This scene is definitely that way. We don't even have a body, so to speak. So we're not real sure, exactly, what we're looking for. It behooves us to send investigators into these searches because they are familiar with these types of investigations a lot times and they may have a better knowledge about things that might be evidentiary in value.
I think about an investigation I did not too long ago where we did the same thing. And this death investigation there was a corpse on the scene, and we got a search warrant, we went in and did a search of this building. It was a trailer, very similar to the ones that we were dealing with on this scene. And the deceased --
MR. BUTING: Your Honor, I'm going to object if we're going to be talking about a different case. I think we need to focus on this case rather than start describing what searches do or don't occur in other cases.
THE COURT: Mr. Kratz.
MR. KRATZ: Judge, certainly the methodology, I expect there's going to be questions by defense counsel as to why this took so long. If they aren't going to question, then I will stop right now with this line. If there is going to be cross about that, I think the jury is entitled to know.
THE COURT: Because the question relates to why the witness did what he did, I'm going to allow a little latitude and allow him to answer the question.
MR. KRATZ: Thank you, Judge.
MR. KRATZ: (By Attorney Kratz)~ Go ahead.
THOMAS FASSBENDER: I'm just using this as an example, when you have a piece of evidence. Well, the body is a piece of evidence, it gets sent to autopsy. We get a search warrant, we hold the scene, we conduct a search, not necessarily knowing what we are looking for for sure. We get intelligence back. And this example, we get information back from the pathologist.
And in this case the pathologist told us to look -- it was a bludgeoning death and a stabbing death -- to look for this type of knife, with this many serrations and a crowbar that was used, this type of information that they can find out. And thus we ended up holding this scene three or four days because we're getting information back. We like to do that because it can assist in our search. It can narrow our scope of search. So a lot of times what I'm getting at is a search may start out fairly broad and maybe not knowing exactly what we're looking for, but it narrows as we move along. Hopefully get more intelligence and information.
MR. KRATZ: Is there a term that goes along with this kind of a search methodology?
THOMAS FASSBENDER: You could call it funneling, a funnel approach.
MR. KRATZ: Exhibit 86, which is on the board, do you recognize that scene?
THOMAS FASSBENDER: Yes, I do. That's the Avery Salvage Yard, along with some residences.
MR. KRATZ: Was one of the residences on the salvage yard that residence of Steven Avery?
THOMAS FASSBENDER: Yes, 12932 Avery Road.
MR. KRATZ: Do you know what township that's located in?
THOMAS FASSBENDER: Gibson?
MR. KRATZ: Gibson?
THOMAS FASSBENDER: Gibson Township.
MR. KRATZ: Do you know what county that's in?
THOMAS FASSBENDER: Manitowoc.
MR. KRATZ: And State of Wisconsin?
MR. KRATZ: At the early stage of this proceeding, that is on the fifth of November, when you arrived on the scene, and when you were directing the searches; was Mr. Avery, the defendant, Steven Avery, a person of interest in this investigation?
THOMAS FASSBENDER: When I arrived on scene on Saturday?
MR. KRATZ: Yes, and throughout the rest of the 5th?
MR. KRATZ: Why?
THOMAS FASSBENDER: Because of a lot of things, information that had been developed. First and foremost, an investigation like this, when I go in, who last saw the person. That's just common sense, who last saw the person. So that was the primary reason that he would have been a person of interest.
MR. KRATZ: All right. You talked about the specialization that some law enforcement officers needed. I think you mentioned both evidence detection or collection, or processing. After that occurs, is it common for evidence to be sent elsewhere for further examination?
MR. KRATZ: What kinds of places is evidence sent for further examination?
THOMAS FASSBENDER: Any number of places. The primary place that we would send evidence to is the Wisconsin State Crime Laboratory in Wisconsin, either Madison, Milwaukee, or Wausau. The FBI laboratories could be used, private laboratories could be used, specialists like forensic anthropologists could be used.
MR. KRATZ: Agent Fassbender, you used the term that I have been asked to have you further explain, and that's a search warrant. Tell the jurors or those of them that may not know, what is a search warrant?
THOMAS FASSBENDER: A search warrant is, essentially, an order signed by a judge, directing law enforcement to search, essentially, a person, a place, or a thing, for items of property, or items, and then forthwith bring those items back before the court. On a search warrant, you have five days to execute the search warrant from the date it was delivered, and returned.
And after the search warrant is executed, you have 48 hours, normally it's looked at as business hours, to return that search warrant to said court with an inventory of items that were seized as evidence.
MR. KRATZ: And you mentioned in this case that a search warrant had been obtained, in fact, more than one?
THOMAS FASSBENDER: Yes. And I neglected to say search warrants based on probable cause by a law enforcement officer to believe that those items of property are where you are looking. And that's through a written affidavit, or testimony, or even telephone or radio.
MR. KRATZ: As one of the lead investigators, I think you said that you were involved in directing search efforts on this property; is that right?
MR. KRATZ: Were there areas that you were directing searches?
MR. KRATZ: Other than search efforts, this -- I mean, globally, this investigation, did it include things other than searching the Avery property?
THOMAS FASSBENDER: Yes. We had not only the Avery property and the size that we were dealing with there, and the items that we were dealing with there, we also had, up in Marinette County, where Mr. and Mrs. Avery have land in that area, and some of the family was up there that first weekend, that we were dealing with.
Some of our DCI agents went up there, and Marinette County detectives were also up there. We were down in Milwaukee dealing with Auto Trader. We were running around, even Manitowoc County, or other counties, to some salvage yards. So, it could -- and a lot of investigations do that -- they can stretch, you know, from one end of the state to the other at times.
MR. KRATZ: All right. Were interviews being conducted in those various locations?
THOMAS FASSBENDER: Interviews were being conducted in many locations.
MR. KRATZ: Now, this is all happening at the same time as the search efforts; is that right?
MR. KRATZ: Though some of the resources that you had to allocate, in other words, direct?
MR. KRATZ: Steven Avery, the only person being investigated?
MR. KRATZ: Explain that.
THOMAS FASSBENDER: We go into an investigation and, like I said, I think I used the term before, you are not going to lock and load. You are going to listen to all the intelligence and information being brought in. Look at all the evidence. You are there to find the truth. That's what we go there for, is to find the truth.
And the object is to allow the evidence, and the facts that are uncovered as you go along, to lead you to the most logical suspect. So, I don't go in with necessarily one person I think definitely did it. There's definitely reasons and intelligence to point maybe in a direction and you follow that direction.
MR. KRATZ: I think you mentioned before, the last person to see her alive, obvious place to start; is that right?
THOMAS FASSBENDER: Well, certainly.
MR. KRATZ: We heard yesterday, or perhaps it was the day before, about perimeter or scene security. Can you mention that just briefly, or discuss that just briefly?
THOMAS FASSBENDER: When you get to a scene like that, or a death scene, it behooves you to secure the scene right away, to allow, or to not allow, let's say citizens or even officers that shouldn't be coming into that scene. We put on a desk investigation school, one of the things we always say is, you know, the sheriff, the chief is going to want to get into that scene, they always want to.
Don't let them in. The less people you have in that scene, most often the better, because you are not affecting evidence that might be in that scene. So you secure that scene, you put up a perimeter, and you try and protect it.
MR. KRATZ: You talk about scenes, and I just want to distinguish this case from a typical -- if there can be a typical homicide investigation or a homicide that occurs in somebody's apartment. Can you distinguish this kind of case from that?
THOMAS FASSBENDER: I don't know if I really have to. It's an outdoor scene, with indoor locations, with buildings and stuff, and you have 15 buildings on that property. You have got 40 acres to search. Forty acres in and of itself is going to be very difficult, but add 4,000 plus cars to that, 54 crushed cars, multiple individuals and people to interview, it is not a normal scene.
MR. KRATZ: All right. Agent Fassbender, Lieutenant Bowe talked about a command center; are you familiar with the command center that was established here?
MR. KRATZ: Can you describe how that was set up.
THOMAS FASSBENDER: Initially, a Manitowoc County -- I think maybe a HazMat Unit, it's kind of like a big RV, in a sense, with an office in it and capable of setting up phones and computers and fax, I imagine, was brought to that scene. And then after that, Calumet County brought a trailer, and their Command Post to that scene and then we were operating out of both of those locations. And that location being at the end of Avery Road, right in that area where the road ends, the pavement ends, right in that area.
MR. KRATZ: Being one of the lead investigators, were you familiar with the efforts, not only the search efforts, but the investigative efforts that occurred during the first eight days of this case?
MR. KRATZ: Let's start then with the first day, on November 5th. We have heard about how you became involved, how a search warrant was obtained, how a sweep occurred. We heard briefly about the dogs that were brought in. But you said that there were nine canine units. Can you tell the jury where they were deployed or where they were searching?
THOMAS FASSBENDER: The canine units were a mix. They weren't all so-called cadaver dogs. Some were mixed trained, some were more like bloodhounds, live search dogs. Initially, just one was brought in, but then after Brutus got done with his initial search, the rest were brought in. And the primary focus to start with, was to search the salvage yard in and around the vehicles, in that 40 acre area.
MR. KRATZ: Can you show, in Exhibit No. 86, what you are talking about?
THOMAS FASSBENDER: Well, essentially, what I'm talking about is the salvage yard area where these dogs had to search. That may have included these cars, may have included the impound area also. Due to weather concerns and darkness, they actually came back to complete that search.
MR. KRATZ: Let's talk about the weather. Do you remember the weather on the 5th?
THOMAS FASSBENDER: Oh, yes.
MR. KRATZ: Tell -- Tell the jury about that.
THOMAS FASSBENDER: Initially, it was predicting -- the weather was predicted to be bad. Rain, storms moving in. As a result I was in contact with the Crime Laboratory, and we decided to try and place a tarp over the RAV 4 SUV, not touching it, but place it over and suspend it, which we did.
And then it started to sleet, maybe a light rain, but the wind really picked up at this time. And we ultimately ended up removing that tarp because it was starting to let loose and it appeared that it was going to affect the debris that was used to conceal the car and we didn't want to do that. So we just had to live with it.
Then it stopped raining. But then somewhere -- my best guess right now is right after dark, or after dark, it stormed. It was torrential downpour the rest of the night. We got some rain. It filled up that pond down there by the SUV, which was dry at the time, and it stormed very bad.
MR. KRATZ: Were you involved in observing Brutus and Brutus working that area that Ms Cramer talked about?
THOMAS FASSBENDER: Yes, I was.
MR. KRATZ: Tell us what you recall seeing?
THOMAS FASSBENDER: Brutus came down and started near the car crusher in the salvage yard and worked that area first. And then Brutus worked to the south, southeast corner of the salvage yard, in that area.
And then along the southernmost edge of the property or berm there. There's a row of cars along that area and Brutus worked along that area. We were advised by Brutus' handler, prior, what Brutus would do if he was alerted on a vehicle. And when Brutus approached the RAV 4 SUV, it became apparent, even to me, that Brutus had alerted on that vehicle, going to the vehicle and going back and sitting in front of Julie and barking.
MR. KRATZ: Agent Fassbender, you testified that you got there about 2:00 in the afternoon; is that right?
THOMAS FASSBENDER: About, yes.
MR. KRATZ: And we have heard other law enforcement officers testify to this, but I'm going to ask you the same questions. Any time after 2:00 p.m., did you see any law enforcement officer or citizen enter that RAV 4 vehicle?
MR. KRATZ: Did you see any law enforcement officer disturb or tamper with anything around there that would have been of obvious evidentiary value?
MR. KRATZ: Is that important to you?
MR. KRATZ: Why?
THOMAS FASSBENDER: Because that's probably, right now, our main piece of evidence in this case.
MR. KRATZ: You mentioned that the Crime Lab was called in; is that right?
MR. KRATZ: How come?
THOMAS FASSBENDER: I didn't request the Crime Lab, but if I go to death scenes, I always request, or request the agents I'm working with, to bring the Crime Lab in. They are essentially our evidence techs.
MR. KRATZ: In front of you, Agent, are some photos. We're going to walk through those for the jury. First photo is Exhibit No. 395. Tell us what that is, please.
THOMAS FASSBENDER: Exhibit 130 you mean?
MR. KRATZ: I'm sorry, yes.
THOMAS FASSBENDER: Exhibit 130, it's almost dark, looks duskish, and it's a photograph of the condition of the RAV 4 SUV when it was found. There's some people near the scene, one of them is myself, one is a deputy with Calumet County, and one of them is, the ones I can see, and one of them is a forensic scientist with the Crime Laboratory.
MR. KRATZ: You are in that photo?
MR. KRATZ: And do you recognize that scene?
MR. KRATZ: I'm showing the jury, now, Exhibit No. 130. Tell the jury what we're looking at, please.
THOMAS FASSBENDER: Again, that's the -- Teresa's RAV 4 SUV, parked facing in a westerly direction along that southern berm of the salvage yard. With the debris, trees, pieces of wood, cardboard, plywood, a vehicle hood on, or around, or leaning against the SUV, and then the individuals there. Myself is in that red jacket. We're law enforcement or Crime Lab personnel.
MR. KRATZ: Point to the Crime Lab people, if you can?
THOMAS FASSBENDER: Right there, the nice way to say it, the person with less hair, was a Crime Lab person, and then myself.
MR. KRATZ: Do you know what his name is?
THOMAS FASSBENDER: John Ertl. And then the deputy from Calumet County. And I think that's a Crime Lab personnel also, I'm not sure.
MR. KRATZ: When you got there, again, we have heard this before, but was this vehicle being watched or guarded?
MR. KRATZ: To your knowledge, from your arrival, since that's all you can testify to, from 2:00 p.m. until the Crime Lab arrived, was it continuously watched by law enforcement officers?
THOMAS FASSBENDER: I arrived and I went to the Command Post first, right after 2. I probably got down into the area by the crusher a little later, maybe 2:20, 2:25. From that point on I could say, yes, it was.
MR. KRATZ: Why didn't you or other law enforcement officers on the scene enter that vehicle or process it there?
THOMAS FASSBENDER: Much safer to really, especially with a vehicle, an outside setting like that, with pending weather, to just secure the vehicle, put it in a closed trailer, let the Crime Lab do their thing. Take it down to the Crime Lab and process it there, rather than trying to process this out in those conditions outside.
MR. KRATZ: Is that what was done?
THOMAS FASSBENDER: That's what was done.
MR. KRATZ: Did anybody, Crime Lab members included, enter that vehicle out at the scene?
THOMAS FASSBENDER: Not that I'm aware of, no.
MR. KRATZ: What was done with the vehicle, if you know, and were you involved in that?
THOMAS FASSBENDER: Yes, I was involved in that, to a degree. Probably about 7:30-ish, that evening, with the rain coming down, I was asked to take the wrecker service, Rabas Wrecker Service, down to the area by the car crusher. Another, I guess, wrecker service was also there, Pethan -- Pethan, out of Calumet County. They had an enclosed trailer that could carry vehicles. They were also there, came down to that location.
At that point, the Crime Lab personnel that were there accompanied the wrecker operator over to the RAV 4 location where they hooked up the RAV 4 and towed it back to the location by the car crusher, where the enclosed trailer was waiting, and they backed it into that enclosed trailer and secured it in that enclosed trailer.
They also took some of the items like the vehicle hood and put that in there. They examined a lot of the remaining items to see if there was any obvious evidentiary value on those items, and ended up not taking most of those items.
MR. KRATZ: I'm going to show you some of those things. What's Exhibit 131? Let's get through these pictures first.
THOMAS FASSBENDER: 131 is a photograph of the hood and windshield area of the RAV 4 SUV. It depicts the branches, and trees, and a cardboard box that had been placed on top of the hood of that vehicle.
MR. KRATZ: Now that the jury can see 131, is that debris the way it looked the evening of the 5th of November.
THOMAS FASSBENDER: Essentially, the wind may have moved some things, or the rain may have moved some things a little.
MR. KRATZ: What's 132?
THOMAS FASSBENDER: That's a photograph, again, of the SUV. This photograph is taken toward the passenger front quarter panel or quarter area of the vehicle, again, showing -- looks like a fence post or two and a piece of cardboard up against the RAV 4.
MR. KRATZ: Now see Exhibit 132, is that the image that you are looking at?
MR. KRATZ: What's 133?
THOMAS FASSBENDER: 133 is a picture of the RAV 4. This would be the driver's side rear quarter panel area of that vehicle.
MR. KRATZ: Is that Exhibit 133?
MR. KRATZ: Now, these appear to be taken after darkness; is that right?
MR. KRATZ: What's 134?
THOMAS FASSBENDER: A picture of the RAV 4 SUV, similar to two exhibits ago, the passenger side a little more inclusive showing, again, the fence post, plywood, and debris.
MR. KRATZ: And here is 134. And I understand that this gets a little bit tedious or monotonous, but do some of these angles or the different shots become important in not only this investigation, but in most investigations?
THOMAS FASSBENDER: Certainly.
MR. KRATZ: What's 135?
THOMAS FASSBENDER: 135 is a picture of the rear portion of the RAV 4, again, showing some of the debris, fence post, trees, leaning up against the RAV 4 and that is it.
MR. KRATZ: 136?
THOMAS FASSBENDER: A picture of the RAV 4 coming at the passenger rear corner so you can see the rear of the RAV 4. And then the passenger side, although you can't see most of it because of the fence post and a vehicle hood leaning up against that portion.
MR. KRATZ: Before I leave 136, I'm sorry, if you can refer to this exhibit, do you see any rear license plates if you look at the screen, Agent Fassbender?
MR. KRATZ: Where would the license plates be?
THOMAS FASSBENDER: Where would they be?
MR. KRATZ: No, I mean, where should they be on this vehicle?
THOMAS FASSBENDER: To the left of the spare tire there and just below it.
MR. KRATZ: Can you point with the laser pointer.
THOMAS FASSBENDER: Certainly, right there.
MR. KRATZ: It's obvious from 136 that they are missing?
MR. KRATZ: Here is 137. I think you described that. What's 138?
THOMAS FASSBENDER: I don't know if I did do 137. I thought I had done 136. 137 is a picture of the passenger side of the RAV 4 and, again, depicting the hood, the plywood, and some tree material, branch material.
MR. KRATZ: So this is 137?
MR. KRATZ: All right. What's 138?
THOMAS FASSBENDER: 138 is the passenger side front fender area of that same RAV 4 and, again, you can see some of the debris and articles apparently used to conceal it.
MR. KRATZ: Is that 138?
MR. KRATZ: And, finally, 139?
THOMAS FASSBENDER: I don't know that I have a 139.
MR. KRATZ: I'm sorry, it goes to 138. All right. After the RAV 4 was loaded onto the enclosed trailer, was that trailer secured to your knowledge?
MR. KRATZ: How was the vehicle -- By the way, were you present for the loading of the vehicle?
MR. KRATZ: How was it loaded on the vehicle, was it started up or something?
THOMAS FASSBENDER: No, the wrecker operator backed it into that trailer. There was a ramp set out and the wrecker operator backed it right up into that trailer and then it was secured.
MR. KRATZ: Agent Fassbender, you talked about some residence searches occurring that first night, that is, the 5th; were those occurring while this SUV was being processed?
THOMAS FASSBENDER: Yes, sir.
MR. KRATZ: Do you know, or can you tell the jury, what residence searches were ongoing?
THOMAS FASSBENDER: The residence at 12932 Avery Road, which was the residence of Steven Avery.
MR. KRATZ: Back to Exhibit 86, which I'm sure we'll use a lot, in the lower right hand corner of that exhibit?
THOMAS FASSBENDER: Yes, the lower right hand corner right there, which would be the northeast section of the entire property.
MR. KRATZ: Now, you talked about a sweep --
THOMAS FASSBENDER: Northwest.
MR. KRATZ: I'm sorry. You talked about a sweep of that residence; is this search that you are now describing something different?
MR. KRATZ: How is it different?
THOMAS FASSBENDER: This search is a search that's organized more for the location or finding of things of apparent or obvious evidentiary value, things that are in the search warrant, or asked for in the search warrant. Again, we're not exactly sure, precisely sure, what we might be looking for at this time either.
MR. KRATZ: Was a search team put together to search that residence?
MR. KRATZ: And do you know how individuals were selected for that search team?
MR. KRATZ: Tell us about that.
THOMAS FASSBENDER: We were looking for individuals who preferably were investigators or detectives and who had training, experience, and expertise in the location of and the processing of evidence.
MR. KRATZ: Were some of those officers or evidence techs on scene; in other words, were they at the location?
MR. KRATZ: Were some of them Calumet County officers?
MR. KRATZ: Were some of them Manitowoc County officers?
MR. KRATZ: We might as well address this right now, Agent Fassbender, did you, as a lead investigator in this case, have hesitancy in assigning any Manitowoc County sheriff's officer to any tasks at that scene?
THOMAS FASSBENDER: No, absolutely not.
MR. KRATZ: Tell the jury why.
THOMAS FASSBENDER: They were there to assist us. In fact, some of the people that actually worked on those teams, I have trained and I have worked with. And the people that we're talking about that would have worked on these scenes, were law enforcement officers, were very professional and did a good job.
MR. KRATZ: You talked about resource allocation, were evidence techs at a premium at that scene?
MR. KRATZ: What does that mean?
THOMAS FASSBENDER: People who -- Again, officers who have been trained and have experience in processing, locating, preserving evidence. You know, a lot of departments may have only one of those people, two of those people. We had a huge scene here and most officers don't have that level of expertise. And at a homicide scene, that is the level of expertise I want processing my evidence.
MR. KRATZ: You had mentioned, just previously, that after the weather turned really nasty, efforts were suspended that evening?
THOMAS FASSBENDER: The majority of the outside efforts were suspended, that's correct.
MR. KRATZ: All right. The search inside of Steven Avery's residence that -- or that continued?
THOMAS FASSBENDER: That continued to about 10, if I remember right.
MR. KRATZ: After 10:00 p.m., what happened?
THOMAS FASSBENDER: Most people -- I shouldn't say most of the people, people involved in the searches met back at the command center where we debriefed, where we talked about what had happened, what we learned that day, what was found for evidence.
MR. KRATZ: Anything else happen on the 5th, of substance?
THOMAS FASSBENDER: The RAV 4 was transported to the Crime Lab in Madison, Wisconsin.
MR. KRATZ: All right. Let's move to the next day, then, Sunday, the 6th; do you recall that day?
MR. KRATZ: Could you just, in an outline form, tell the jury what investigative efforts occurred on Sunday, the 6th?
THOMAS FASSBENDER: Dogs came back to the scene. There was a lot more to search, but they were concerned that because of the rain, that they wanted to do it again, or make sure they covered every place in this property.
So they came back. I believe eight dogs this time, came back to that scene, finished the salvage yard area, went around the perimeter building -- perimeters of buildings, etcetera. Also brought in that day were somewhere in the vicinity of 45 to 50 firefighters. And we utilized them to get into the salvage yard and look into locked areas or locked containers: Trunks, hoods, any other places that we needed to get open to look, to see if there was a person in there, a body.
Those teams were formed with law enforcement presence; in other words, there's a law enforcement officer with each team of firefighters that went into the salvage yard.
MR. KRATZ: Was it your understanding that all 4,000 of these vehicles were individually searched, that is, the trunks were searched that Sunday?
THOMAS FASSBENDER: Yes. So that was -- the main manpower went to that purpose. Also on Sunday, we had the luxury of forming essentially two, three, evidence processing teams. We had a similar team that we had the night before.
We had an additional team utilizing some Manitowoc police -- Manitowoc City Police evidence technicians and investigators, and we were able to get the Crime Lab to come back that afternoon, also, for additional processing.
Also during this time, just like Saturday, there were numerous interviews and follow-ups going on at the same time.
MR. KRATZ: Were there any firearms or guns seized that day?
THOMAS FASSBENDER: Yes. The previous evening, the search of Steven Avery's residence, during the debriefing at the end of the evening, the technicians that were in his trailer informed us that they had seen some guns in there, informed us what they had taken and what they had seen. They didn't seize the guns.
They informed that there was a vacuum cleaner. They took the bag out of the vacuum cleaner. They informed us about a carpet cleaner and some other things. It was determined at that time we're going to go back in there and get some of those items, the guns, the two rifles. We wanted the vacuum cleaner because of the rotating brush, the carpet cleaner, some bedding. So, yes, there was, and we did reenter that trailer to get those items.
MR. KRATZ: I think Officer Bowe, yesterday, talked about dive teams or teams searching ponds; did that occur that day?
THOMAS FASSBENDER: Yes. We had the Winnebago County Sheriff's Department Dive Team on that day also.
MR. KRATZ: Are you familiar with the residence of Mr. Avery's sister, Barb Janda?
THOMAS FASSBENDER: Yes, I am.
MR. KRATZ: I'm going to have you look at Exhibit 86 again, tell the jury where is that property.
THOMAS FASSBENDER: That property is right here, which would be almost directly east of the Steven Avery property. And then next to that residence is her unattached garage.
MR. KRATZ: On that Sunday, that is, on the 6th, was any property recovered or seized from outside of, or near, Ms Janda's property?
MR. KRATZ: What was that?
THOMAS FASSBENDER: That was some burn barrels, four burn barrels, that were located behind her residence.
MR. KRATZ: About where, can you show us?
THOMAS FASSBENDER: I think right there, which would be from her residence, in a southeasterly direction, about -- I don't know, 100 feet maybe.
MR. KRATZ: All right. Let me just stop you right here. This is the first full day, but the second day of search. Did you have an idea, as a lead investigator, yet, what you were looking for?
THOMAS FASSBENDER: No, not entirely. If I might?
MR. KRATZ: Go ahead.
MR. BUTING: Judge, objection to the witness narrating on his own.
THE COURT: I guess it depends if what he's about to say is in additional response to the last question, or simply random thought.
MR. KRATZ: I suspect this isn't random, is it?
MR. BUTING: The proper way would be to place a question to the witness.
THE COURT: Mr. Kratz.
MR. KRATZ: (By Attorney Kratz)~ Can you elaborate on your last answer, Investigator?
THOMAS FASSBENDER: I believe you asked me about knowing what we were looking for. And elaborating on that answer, we had reason, sometimes, to go where we went. The barrels for example, the dogs had alerted on the barrels, so we knew that we wanted to go there.
MR. KRATZ: All right. Now, were all of these items, that is, the items that were seized, and the places that were searches -- or searched, included in this judicial authorization, this thing that you called a search warrant?
MR. KRATZ: You said the Crime Lab remained on the scene, or came back to the scene on Sunday; is that right?
THOMAS FASSBENDER: They came back to the scene Sunday afternoon.
MR. KRATZ: Were they given some specific responsibilities or specific places to search?
THOMAS FASSBENDER: Yes. They were essentially kind of like a roving evidence team, places where the dogs may have hit on, or where searchers found what they thought might be evidence. A lot of times, that's where we would send them, to look at that, or process it, if necessary.
MR. KRATZ: All right. Were there other residences and buildings searched that day?
MR. KRATZ: Can you tell us about those.
THOMAS FASSBENDER: We had a search team search the garage, the unattached garage next to Steven Avery's house. We had a team that went through Barb Janda's house and her garage. We had a team go through the unoccupied or abandoned trailer along the driveway going toward Ms Janda and Steven's house. A team went through Mr. and Mrs. Avery's residence and garage.
MR. KRATZ: Allen and Delores?
THOMAS FASSBENDER: Yes. A team went through Charles Avery's residence and garage. And teams also went through all of the outbuildings, in the northeast section of the property, associated with the business.
MR. KRATZ: All of that happening at the same time that the law enforcement and firefighters are opening every trunk?
MR. KRATZ: Is there anything happening on Sunday, off site; in other words, off of this property included in your investigation?
THOMAS FASSBENDER: Yes. Up in Marinette, we were interviewing members of the family up there. I believe it was Sunday that two vehicles were seized up there. A flat bed truck from the business, and Steven Avery's car, were seized and taken to the police department or the sheriff's department up there.
We had agents and detectives doing interviews, neighborhood canvasses. Neighborhood canvasses are essentially someone going around to residences in the neighborhood, businesses, whatever might be, and asking questions about whether they saw or heard anything.
MR. KRATZ: So all this is happening at the same time?
MR. KRATZ: It's your responsibility to kind of coordinate all this at once?
THOMAS FASSBENDER: Myself and Investigator Wiegert.
MR. KRATZ: So the jury is clear, did you receive assistance and direction, not only from other law enforcement, but other legal authority at that time?
MR. KRATZ: Who else was involved?
THOMAS FASSBENDER: Well, we were working with the District Attorney's Office, Calumet County District Attorney's Office.
MR. KRATZ: Me?
MR. KRATZ: Okay. The search warrants, that is, the request and the authorization by judges, when you received them, is that something that you prepared, or something that somebody else prepared?
THOMAS FASSBENDER: That's something that someone else prepared.
MR. KRATZ: Who typically would prepare them?
THOMAS FASSBENDER: Either the District Attorney, Assistant District Attorney, or their staff.
MR. KRATZ: All right. Agent Fassbender, then, did anything else, at least that sticks out in your mind, occur on that Sunday, the 6th?
THOMAS FASSBENDER: That night, before the Crime Lab retired for the evening, we asked them to go back into the residence of Steven Avery. The reason we did that is, we had found what appeared to be blood in there, the previous evening.
And they went in there to look at the blood patterns. As a result of doing that, they identified some potential blood that needed to be processed yet, and they advised us of that during the debriefing that evening.
MR. KRATZ: This was a Sunday; is that right?
THOMAS FASSBENDER: Sunday, yes.
MR. KRATZ: Is anything else going on at the State Crime Lab as far as you know, on that Sunday?
MR. KRATZ: What was that?
THOMAS FASSBENDER: The RAV 4 vehicle had already been down there --
MR. BUTING: Objection, your Honor. This witness can't testify what's going on some place two hours away.
MR. KRATZ: It's certainly not for the truth, Judge, it's did this officer do anything in response to that.
MR. BUTING: That's fine.
THE COURT: All right. For that purpose, I will allow it.
THOMAS FASSBENDER: I was informed that day, that to an initial processing of that vehicle, that they had received a positive test for the presence of blood in that vehicle.
MR. KRATZ: All right. And did that further direct your search efforts and where to look and what you were looking for?
THOMAS FASSBENDER: Yes, certainly, to a degree.
MR. KRATZ: Let's move to Monday, the 7th of November. Tell the jury how this search effort progresses, please.
THOMAS FASSBENDER: Okay. Monday, again, we started early in the morning. Volunteer firefighters are utilized, again. I believe we have about 60 of them on the scene this day. Coupled with about 20 law enforcement officers, the majority being from the Manitowoc Police Department, some from Two Rivers Police Department, a few from Manitowoc County, DCI agents, and Calumet County. Calumet County had -- this was a day that they brought over jailers and dispatchers to assist in the search effort.
And, again, what happened this day was a good majority of the -- I believe the Mishicot Fire Department volunteers, along with DCI agents and possibly some law enforcement officers, went down by the crusher. And there were about 54 crushed cars down there. And they methodically went through everyone of those crushed cars, apparently ripping off the roof of those cars and any closed areas to search those cars.
After searching them, they had like a front end loader down there with forks on the front, I believe. And they moved the cars from the south side of that car crusher over to the north side, when they were done searching it. They had these tools to get into this and enable them to do this, whether it was Jaws of Life or cutting tools.
MR. KRATZ: You said that 54 crushed cars were near the car crusher; is that right?
THOMAS FASSBENDER: That's my knowledge, yes.
MR. KRATZ: And understanding that all 54 were searched?
MR. KRATZ: Do you know what they were looking for?
THOMAS FASSBENDER: Well, obviously, a body, or any indications of such, clothing or other things that were in the search warrant.
MR. KRATZ: Was anything at least brought to your attention, as the lead investigator, found in the search of those 54 crushed vehicles?
THOMAS FASSBENDER: No, sir. May I continue with Monday then?
MR. KRATZ: Counsel may want me to do this a little bit more question and answer, so I will interject a couple of questions. Were there on site and off site teams that were formed that day?
MR. KRATZ: Did any of the off site teams move towards, at least in their search efforts, towards the 40 acre Avery property?
THOMAS FASSBENDER: I'm not sure I understand. But along with the teams that did the crushed cars, firefighters and law enforcement, again, coupled up into teams. And there was law enforcement with each team of firefighters and they were searching the perimeter of this area, this 40 acre area, just outside the perimeter and in that area, and working their way either toward, depending where they started, or away from the property. Again, looking for anything that might be of obvious evidentiary value.
MR. KRATZ: Did they find anything, that you are aware of, that had obvious evidentiary value?
MR. KRATZ: What was that?
THOMAS FASSBENDER: Toward the northwest section of the property, just north of Steven Avery's residence, there was a burn barrel located. One of these search teams found that burn barrel. Inside that burn barrel was a wheel -- not the tire, but the axle -- or the rim part of the wheel. They looked under that.
MR. BUTING: Judge, objection, to what they did or didn't do, if he is not there. These witnesses will be testifying later. I think he can describe this without getting into that kind of detail.
MR. KRATZ: I think that's fair, Judge. I will have him refer to the exhibit and tell me what he saw.
THE COURT: I agree. The objection is sustained.
MR. KRATZ: (By Attorney Kratz)~ In looking at Exhibit 37 that's on the screen, is this the burn barrel that you are talking about?
MR. KRATZ: Can you point to it with the laser pointer.
THOMAS FASSBENDER: Yes, right there.
MR. KRATZ: So that was discovered on Monday, the 7th?
MR. KRATZ: Did you direct officers to take control, that is, to seize and otherwise process the contents of that burning barrel?
THOMAS FASSBENDER: Yes. DCI agents went down there and took control of that and, ultimately, released it to one of the evidence collection teams and it was, ultimately, seized and taken in -- again, in an enclosed trailer, to the Calumet County Sheriff's Department for subsequent processing.
THE COURT: Excuse me. I'm not sure, are you talking about the burn barrel was seized?
THOMAS FASSBENDER: Yes, the whole burn barrel.
MR. KRATZ: (By Attorney Kratz)~ You spoke earlier of, Agent Fassbender, about some weapons, some firearms having been seized from Mr. Avery's property; were there other firearms on the Avery Salvage Property itself?
THOMAS FASSBENDER: Yes, sir, there were.
MR. KRATZ: Were those ever taken or seized?
MR. KRATZ: When did that happen?
THOMAS FASSBENDER: I think that ended up being a multi day effort. Probably started on Monday and maybe even went through two or three days, because firearms were located in each residence, in vehicles, in shops. So, there was a multitude of firearms to take. And involved with were safes, gun safes, that had to be opened.
MR. KRATZ: Now, we're going to hear from Crime Lab witnesses perhaps in the next week or two, but on that Monday, without telling us what they told you, on that Monday, the 7th of November, did you receive a preliminary report from the Crime Lab regarding the processing of the SUV?
THOMAS FASSBENDER: I was in contact with the Crime Lab pretty much every day and, yeah, I received information on Monday.
MR. KRATZ: All right. We'll get from them what it is that they found on each day. The question, though, is when you would receive updates, daily updates, from the Crime Lab, would that further direct your search efforts?
THOMAS FASSBENDER: Most definitely.
MR. KRATZ: Anything else happen on Monday that stands out in your mind of significance, either search efforts or off site investigative efforts?
THOMAS FASSBENDER: Winnebago County Dive Team was there, again, to conclude or finish their search of ponds. And by ponds, I'm talking about adjacent property, quarries, gravel pits.
Also, on Monday, one of the teams -- I believe one of the teams, or an individual officer -- no, probably one of the teams -- was directed to go into Steven Avery's trailer and obtain the serial number off of a computer in that trailer because he wanted to get a search warrant for that computer.
MR. KRATZ: All right. Let's move to the next day, then, Tuesday, the 8th of November; do you remember that day?
THOMAS FASSBENDER: Yes, I do.
MR. KRATZ: Now, again, after receiving information from interviews, as well as Crime Lab and other analysis; were more directed searches to happen that day?
MR. KRATZ: Where were those?
THOMAS FASSBENDER: Residences, Steven Avery's being one, Charles Avery being one. I believe some vehicles, maybe some of the other residences and buildings.
MR. KRATZ: Now, Agent Fassbender, I have counted, just by listening to your broad overview, of several times that officers have already, by this point, been into Steven Avery's residence; is that right?
MR. KRATZ: On Tuesday, the 8th, did you send them in there, again?
MR. KRATZ: Tell the jury why.
THOMAS FASSBENDER: On Tuesday morning, we formed another evidence collection team and search team. What we were looking for at that time was, again, we're getting more intelligence and more information to come -- that were coming in. And we sent them in there to look for some of that stuff.
One of the primary things was, if you recall, I talked about Sunday evening and the Crime Lab identifying some more blood in that trailer. Well, Monday, we had, again, an opportunity to do that, to get back into that trailer. Because we were busy with other things, including a potential burial site that we found off the Avery property, which took a lot of our resources for a good part of the day, so one of the primary purposes we went in there was to analyze and collect that blood, to also serve a search warrant on the computer and take that. And also under our direction, to conduct a complete and thorough search of that, being more detailed.
MR. KRATZ: What's a thorough search? What are you talking about?
THOMAS FASSBENDER: What I would like, when I'm directing someone to do that, that they are moving things, looking under things, looking in books, in between things, a complete and thorough search.
MR. KRATZ: Is that a different kind of search than you understood occurred up to that point?
THOMAS FASSBENDER: Yes, to a degree. The first one, they are not necessarily knowing what they are looking for, obvious evidentiary value, on that first one. Trace evidence, like blood and stuff like that, that you don't want to lose, because you can lose that fairly quickly. So, I want them to take that on the first one. But now, you know, we're getting along in the week here, and I don't know how long we're going to be holding this scene after that. Let's do our complete and thorough search here and make sure that we're not missing anything.
MR. KRATZ: During that thorough search were you called to the Avery trailer?
MR. KRATZ: And did they, meaning the evidence techs in that trailer, show you something that they believed had obvious evidentiary value?
THOMAS FASSBENDER: That's correct.
MR. KRATZ: What did you see?
THOMAS FASSBENDER: They showed me a Toyota car key with a blue fob attached to it.
MR. KRATZ: Did you direct anything be done with that Toyota car key?
THOMAS FASSBENDER: Yes. That would be preserved, packaged. And then one of our agents, DCI agents, took ultimate possession of that and transported it directly to the Crime Laboratory.
MR. KRATZ: Why?
THOMAS FASSBENDER: To get processed, number one, and number two, to see if it worked in the RAV 4.
MR. KRATZ: What is worked in the RAV 4 mean?
THOMAS FASSBENDER: If it went into the ignition and would turn the key, turn the ignition of the RAV 4.
MR. KRATZ: Other than the Toyota -- Other than a Toyota RAV key -- a Toyota key being found that day, that is, on Tuesday, were there any other discoveries that you were directed to or that you were asked to come and look at?
MR. KRATZ: What was that?
THOMAS FASSBENDER: We also, that morning, we had -- not a -- on that day we did have approximately 60 troopers, Wisconsin State Patrol troopers come to the scene. Now, the State Patrol was present from day one here, doing the mapping, or helping with scene security. I may have failed to mention that.
But on that day, we had 60 troopers come. The reason we had them come, is for the same concept. We wanted to do more of a detailed search of that entire salvage yard. And all those vehicles in that salvage yard, looking now for obvious evidence. And during that search they were, again, coupled with some firefighters, volunteer firefighters, 25, 30 maybe. And during that search, two license plates were located in a salvaged vehicle. Those two license plates turned out to be the license plates for Teresa's vehicles.
MR. KRATZ: All right. Was there a third major discovery on that day, that is, Tuesday, the 8th?
MR. KRATZ: What was that?
THOMAS FASSBENDER: Directly behind the garage that's adjacent to Steven Avery's residence where the dog had been located, or was located, there was a burn area found. And discovered in that burn area were pieces of bone.
MR. KRATZ: Looking at Exhibit No. 86, can you tell the jury where that burn area was located?
THOMAS FASSBENDER: Yes. This is the garage for Steven Avery. And then just south of that garage, this darkened area, would have been a dug out area from a berm or pile of dirt and gravel and that's the area where the bones were discovered.
MR. KRATZ: Were some individuals with some expertise asked to come take a look at that location?
THOMAS FASSBENDER: Yes, the Crime Lab was on scene that day and they were asked to come and help process that area.
MR. KRATZ: Any DCI agents?
MR. KRATZ: What kind of agents, if that's a fair question?
THOMAS FASSBENDER: Arson investigators or former arson investigators.
MR. KRATZ: Why would you send an arson investigator to an area like this?
THOMAS FASSBENDER: Because it's a burn area and they were trained in fires and burns and they deal with, many times, finding bodies in burned buildings or wherever, they are trained in that area.
MR. KRATZ: Was it your understanding that the Crime Lab, with the assistance of these arson investigators, began to process the scene that day?
MR. KRATZ: By the way, Agent Fassbender, were you called to look at that burn area that Tuesday?
THOMAS FASSBENDER: I believe so, but I just don't recall.
MR. KRATZ: You had other things going on that day as well?
MR. KRATZ: Other than those three major discoveries, anything else occur on site that day that you can recall?
THOMAS FASSBENDER: I believe that evening, before the Crime Lab left, we asked them to go back into Steven Avery's trailer and Charles Avery's -- Charles Avery's trailer and do some luminal testing involving a chemical that can illuminate the presence of blood, amongst other compounds or chemicals, but they usually use that for determining if there was any blood in that area, blood that may not be visible to the naked eye. So we have them do that that evening, yet.
MR. KRATZ: Now, Agent Fassbender, the next several days Wednesday, Thursday, Friday, and into Saturday, did you and other law enforcement agents maintain control of the Avery Salvage Yard?
THOMAS FASSBENDER: Yes, sir.
MR. KRATZ: And I know that we are going to hear from each of the individual officers, but if you could just tell us, generally, what happened for the balance of the week. What kinds of additional investigative efforts were made for those last three days?
THOMAS FASSBENDER: Crime Lab was there Tuesday and I believe Wednesday. And their primary duties that they were doing was just processing. I know they were at the Calumet County Sheriff's Department processing the barrels and stuff like that. On Wednesday we obtained search warrants for fingerprints and DNA from the adult members that were commonly associated with the Avery salvage yard, or residents, the Avery family pretty much, or the members who worked on that salvage yard. Did interviews of those individuals, or attempted to.
We had, I think, one small evidence collection team, or evidence technicians that were doing follow-up stuff that needed to be done that day. For example, we knew that there was a garage door opener in Teresa's car. And then they found a tool that was like an emergency roadside tool. We learned that and we were looking to see if we could find that anywhere, to determine whether that was taken from the scene, or it was actually Teresa's property. Things like that. So some people went back into the buildings and then did some searching that day.
MR. KRATZ: When was it that the property was turned back over to the Avery family?
THOMAS FASSBENDER: Saturday morning.
MR. KRATZ: The 12th?
THOMAS FASSBENDER: Yes, November 12th.
MR. KRATZ: Now, although we're going to hear from Crime Lab experts, I think you mentioned that each day additional findings were made; is that fair?
THOMAS FASSBENDER: That's correct.
MR. KRATZ: And with those additional findings, further interviews and further investigation was completed?
MR. KRATZ: Now, other than this site, the balance of the week, could you tell the jury, just briefly, what kinds of things were happening off site?
THOMAS FASSBENDER: Continued -- We would continue to do interviews off site. We did records exams. Records exams can consist of the business records of the Avery Salvage Yard, and can go to financial records, can go to telephone toll records that have been subpoenaed, that type of stuff, that had to be analyzed.
Neighborhood canvasses, again, were ongoing. We tried to do traffic surveys which, basically, are identifying vehicular traffic or people who commonly go through that area, to see if they might have seen anything, activities such as that.
MR. KRATZ: Judge, although I'm virtually finished, I do have one or two more areas of inquiry. I don't know if the Court wants to take our afternoon break at this time.
THE COURT: All right. It's just about noon, so we'll take our lunch break at this time and resume at 1:15. Members of the jury, I will remind you, again, not to discuss this case over the lunch hour. We'll see you after lunch.
(Jury not present.)
THE COURT: You may be seated. Counsel, is there anything else to take up outside the presence of jury before we resume after lunch?
MR. KRATZ: No.
MR. BUTING: Yes, there is, Judge. I have a couple things I need to make a record on. We have -- First of all, we had a request out from the prosecution -- to the prosecution, for discovery, for a long time, and had no response, as to any citizen complaints, fire and police commission complaints, anything that -- regarding Lieutenant Lenk and Sergeant Colborn. And that has not been complied with yet.
Further, we have received some information from what appears to be a reliable source that one or more of these burn barrels were lost at some point, while in custody. That is, the chain of custody apparently may have a break in it, and that they were discovered, I believe at the State Patrol custody rather than Calumet, or DCI, or whatever. We received nothing like that in our discovery. I don't know if there is any such evidence. I would ask that the State comply with the discovery and turn that over immediately.
THE COURT: Mr. Kratz.
MR. KRATZ: Other than the defense having received all of our evidence logs, we can certainly make some more directed inquiries that they have everything that we have, at least that I'm aware of.
Regarding the issue of the citizen or other personnel records kinds of complaints, that's something I'm sure that we'll need a more extended hearing on and something that we're not prepared to address at this time. Of course, since those witnesses aren't testifying now, it doesn't become ripe yet. But I would suggest the Court set aside at least some period of time between now and when those witnesses testify, to address those personnel records issues, which I assume counsel understands what's necessary to secure those -- those items.
But regarding the chain of custody, not only can that be addressed by cross-examination, but I believe we have complied, as has been noted throughout this case, with discovery, that the defense has things perhaps that they don't even know they have. But that not withstanding, Judge, we'll make sure, once again, that everything has been turned over. And if there's a further problem, we can alert or address the Court at that time.
THE COURT: All right. I will ask the attorneys to discuss this matter further. If there is still an area of disagreement that requires a hearing, let the Court know and I will schedule it.
MR. KRATZ: All right. Thank you.
(Noon recess taken.)
(Jury present.)
THE COURT: Mr. Kratz, at this time you may resume your direct examination of the witness.
MR. KRATZ: Thank you, your Honor.
DIRECT EXAMINATION CONTD. BY ATTORNEY KRATZ:
MR. KRATZ: Agent Fassbender, we left off talking about the last three or four days of the search, bringing us to the 12th of November. On the 12th of November, how was this scene returned to the Avery family?
THOMAS FASSBENDER: I met with Charles Avery and, I believe, Barb Janda was also present, and it was turned over to Charles.
MR. KRATZ: Between the 5th and the 12th of November, had you received requests from Avery family members to retrieve some personal belongings within the salvage yard and the residences?
THOMAS FASSBENDER: Yes, we had quite a few requests and, actually, contacts with the Avery family members. They had pets or animals on the scene; medicine, I believe; mail on one occasion, where we had Barb Janda come in and get some mail. We were dealing, both Investigator Wiegert and myself, with them consistently.
MR. KRATZ: Were attempts made, when at all practical, to meet those needs, whether for business or personal reasons?
THOMAS FASSBENDER: Yes, I understand that we had this -- their homes, their businesses, for a week. And I understand that it is an extreme hardship. I have empathy for that. When we go to these scenes, we try to process them as quickly as possible because of that.
MR. KRATZ: The last area of inquiry, Agent Fassbender, you mentioned limiting access to the scene itself from the outside, that is, from citizens or at least knowing who was on that property; did you testify about that?
THOMAS FASSBENDER: Did I, yes.
MR. KRATZ: Was there a method created to insure that you could keep track of that kind of information?
THOMAS FASSBENDER: Yes, logs are created on crime scenes such as this, to record officers, law enforcement personnel, or whoever else, whether it be a coroner, whoever, that comes into the scene. In fact, when I got there on Saturday, ultimately, I got down by the car crusher, that staging area down there, and about 2:25 I think it was. And the officers that were staged there, I told them, I recommended that they start a log there also.
MR. KRATZ: Was that done to your knowledge?
THOMAS FASSBENDER: I believe so.
MR. KRATZ: And do you know about what time a log was started for entry on to the Avery property?
THOMAS FASSBENDER: I'm not sure.
MR. KRATZ: Again, about what time was it that you arrived?
THOMAS FASSBENDER: About 2:00.
MR. KRATZ: And was a log begun yet at that time?
THOMAS FASSBENDER: I believe so, but I just don't recall.
MR. KRATZ: That would have been somebody else's area of involvement or decision; is that right?
THOMAS FASSBENDER: Yes, sir.
MR. KRATZ: Judge, I would move the admission of Exhibits 130 through 138 at this time.
THE COURT: Any objection?
MR. BUTING: None.
THE COURT: Very well, those exhibits are admitted.
MR. KRATZ: That's all I have of this witness. Thank you.
THE COURT: Mr. Buting.
MR. BUTING: Yes, Judge.
CROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Good afternoon, Mr. Fassbender.
THOMAS FASSBENDER: Good afternoon.
MR. BUTING: Let me go back to the beginning of your testimony, about some of your experience, for a few minutes, okay?
MR. BUTING: Twenty-seven years as a law enforcement officer is a long time; would you agree?
MR. BUTING: Not that you are old yet, but it's a lot of experience. And I'm not sure that we got clear, was all of that with DCI?
THOMAS FASSBENDER: Five years of that was with the State patrol.
MR. BUTING: Okay. But always for the State, pretty much?
THOMAS FASSBENDER: Correct.
MR. BUTING: And you did say that one of the functions of DCI is to help out other law enforcement departments, all over the state, particularly smaller ones, that may not have as many detectives, right?
THOMAS FASSBENDER: Certainly.
MR. BUTING: And, you know, coming from outside of an area, you kind of have a different perspective perhaps than the local people who have been, you know, in individual local departments?
THOMAS FASSBENDER: Yes, possibly.
MR. BUTING: I mean, you are somewhat at a disadvantage when you talked about knowing local vendors and resources if you need tow trucks and that sort of thing, right?
MR. BUTING: So it's helpful to have those local departments available for that kind of assistance, certainly?
THOMAS FASSBENDER: Yes, sir.
MR. BUTING: Okay. But in smaller departments sometimes, you know, you realize that there's probably some history between certain suspects and certain police departments?
THOMAS FASSBENDER: Certainly that could be.
MR. BUTING: Okay. You have the advantage of, though, coming on the scene without that kind of problem. You don't have any prior history with anybody who may be a suspect or person of interest, right?
THOMAS FASSBENDER: Yes, I like to think so.
MR. BUTING: And in this case, when you were called in, you live in the Fox Cities area?
THOMAS FASSBENDER: Correct.
MR. BUTING: Okay. So you watch the television stations from Green Bay, and that's where you get most of your media news?
THOMAS FASSBENDER: Yes, sir.
MR. BUTING: And Appleton news, of course. So you knew this Teresa Halbach case, missing person case, had already gotten quite a bit of publicity, right?
THOMAS FASSBENDER: I had seen bits and pieces, yes.
MR. BUTING: Okay. And when you were called into this case, you knew that this was going to be pretty high profile; would that be fair?
THOMAS FASSBENDER: Just based on Teresa missing, or where I was being sent?
MR. BUTING: Where you were being sent?
THOMAS FASSBENDER: The possibility, yes, existed.
MR. BUTING: Okay. So you wanted -- You knew that your performance as an officer -- You didn't at that point know you would be a lead investigator, did you?
MR. BUTING: But you knew that, obviously, your performance could be under the microscope, so to speak, of a high profile case?
THOMAS FASSBENDER: My performance is always under a microscope, but more people may see it, yes.
MR. BUTING: Okay. Sure. So you wanted to make sure that it was a thorough investigation that you undertook, right?
MR. BUTING: As complete an investigation as you could?
MR. BUTING: And as you described it, this funnel approach, you wanted to be as thorough and get all leads and everything carefully investigated before you narrowed down to the bottom of that funnel, that one man, right?
THOMAS FASSBENDER: Generally, yes.
MR. BUTING: Okay. Now, you also knew -- well, maybe you didn't. Did you know, before you got assigned to the case and you went over to the Avery property, were you aware of Mr. Avery, who he was?
MR. BUTING: You knew about the wrongful conviction, and all the years in prison, and all of that, right?
MR. BUTING: And you knew that he had filed a lawsuit against Manitowoc County after that, right?
THOMAS FASSBENDER: I believe so.
MR. BUTING: Well, was there talk in the law enforcement community, in this whole area, you know, northeastern Wisconsin, about this lawsuit, at all?
THOMAS FASSBENDER: No, not from my experience.
MR. BUTING: Okay. So what you knew was not insider knowledge, it was just from the news?
THOMAS FASSBENDER: Essentially, I know DCI looked at something related to that.
MR. BUTING: In fact, the Attorney General commissioned a report by your department?
THOMAS FASSBENDER: Yeah, the Attorney General.
MR. BUTING: Okay. And she looked and focused on the wrongful conviction of Mr. Avery to try and see what, if anything, went wrong, that could be determined?
THOMAS FASSBENDER: Although I wasn't involved in that, I believe so.
MR. BUTING: Okay. And you knew, then, that after all that was done, and all the information was gathered, and additional facts were learned, Mr. Avery filed a lawsuit against Manitowoc County?
THOMAS FASSBENDER: Yes, I believe so.
MR. BUTING: And against Manitowoc County sheriff or former sheriff?
THOMAS FASSBENDER: I'm not sure about that. I know it was Manitowoc County. I believe Manitowoc sheriff too, yes.
MR. BUTING: Okay. All right. And then you arrive, with that background and that knowledge, and you come to the scene, and the first thing you do is you go to the Command Post, which is right at the entrance way to the Avery property, right?
THOMAS FASSBENDER: Yes, sir.
MR. BUTING: And you go through a debriefing -- or a briefing, I should say, with those in command, right?
MR. BUTING: You mentioned Sheriff Pagel, Deputy Inspector Schetter perhaps, was he one of the ones you spoke with?
THOMAS FASSBENDER: Perhaps, I can't recall.
MR. BUTING: Was Investigator Wiegert there?
THOMAS FASSBENDER: I don't think he was. I think he was obtaining a search warrant.
MR. BUTING: Okay. Lieutenant Hermann, maybe?
THOMAS FASSBENDER: I don't know.
MR. BUTING: All right. But some upper brass, so to speak, in the Manitowoc -- I'm sorry, in the Manitowoc County Sheriff's Department, as well as the head of the Calumet.
THOMAS FASSBENDER: I definitely remember speaking with Sheriff Pagel. And I know I saw Deputy Inspector Schetter there.
MR. BUTING: Okay. And Schetter is with Manitowoc Sheriff's Department and Pagel is with Calumet?
THOMAS FASSBENDER: Correct.
MR. BUTING: And so you knew, then, that a determination had already been made, before you arrived, that there was a conflict of interest, or an appearance of a conflict of interest, for Manitowoc County to investigate Mr. Avery?
THOMAS FASSBENDER: Correct.
MR. BUTING: So for that reason, Calumet had been turned -- the lead investigation authority had been turned over to Calumet?
MR. BUTING: And you, of course, wanted to do everything you could, within your knowledge, to try and make this investigation a fair one, right?
THOMAS FASSBENDER: Yes, sir.
MR. BUTING: You didn't want to go into this and set up some kind of investigation that would have an appearance of unfairness, right?
THOMAS FASSBENDER: I didn't want to set up an investigation that was unfair.
MR. BUTING: Okay. Much less the appearance. And this was a high profile case, you didn't want the public to think that you were leading an investigation that appeared to be unfair or biased in some way, against the gentleman who had sued Manitowoc County?
THOMAS FASSBENDER: I don't know if I agree with that. I was concerned about finding the truth, not about the press, not about what people thought. And I made my decisions based on that.
MR. BUTING: All right. At any rate, in order to try and ensure that there was a fair investigation, you kind of looked around and made some decisions that a few things had to be -- had to be changed, that hadn't been done yet, right?
THOMAS FASSBENDER: I'm not sure what you are asking.
MR. BUTING: All right. I will be more specific, I'm sorry. When you arrived at the property at 2:25 p.m., you drove right in to the Command Post and didn't have to sign in or sign out, initially, did you?
THOMAS FASSBENDER: As I answered before, I don't recall.
MR. BUTING: All right. But let me just mark something and show it to you.
(Exhibit No. 142 marked for identification.)
MR. BUTING: All right. Showing you what's marked now as Exhibit 142, does that look at all familiar to you?
THOMAS FASSBENDER: Yes, I have seen this.
MR. BUTING: Okay. And can you tell the jury what that is.
THOMAS FASSBENDER: That's one of the logs I was talking about, a sign-in log, sign-out log --
MR. BUTING: Okay.
THOMAS FASSBENDER: -- at the scene.
MR. BUTING: Okay. And this particular one, I think actually says -- no this one doesn't, doesn't say exactly where it is. But does this one appear to be one that was taken up at the intersection of Highway 147 and Avery Road, or does this look like one from somewhere else?
THOMAS FASSBENDER: This looks like one that was started down by the car crusher, I believe, that staging area down there.
MR. BUTING: Okay. So everybody who came down in that area had to sign in there?
THOMAS FASSBENDER: I would hope so.
MR. BUTING: Okay. The very first entry is what?
THOMAS FASSBENDER: DCI Agents Hunsader and Fassbender at 2:25 p.m. in and then some initials.
MR. BUTING: Okay. So this log, in any event, appears to have been started right with your arrival?
MR. BUTING: And that's good police practice to do that, right?
THOMAS FASSBENDER: Certainly.
MR. BUTING: You then have a record of everybody who comes and goes, right?
MR. BUTING: And it has got an exact date and time that someone comes, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: And that applies to officers?
MR. BUTING: No matter what their rank?
MR. BUTING: Even the top dog sheriff has to sign a log like this, right?
THOMAS FASSBENDER: They should.
MR. BUTING: In order to get past that checkpoint, you would have to sign in, if you were going in in the normal way, right?
THOMAS FASSBENDER: You should, yes, if you are going by that checkpoint, yes.
MR. BUTING: Well, unless you were eluding the checkpoint in some way, and coming in at a different location, you would really have to sign in, wouldn't you?
MR. BUTING: The guard or the officer who's there says -- you know, doesn't let anybody by without signing in?
THOMAS FASSBENDER: Correct.
MR. BUTING: And, now, you said you have seen this document before. Have you had a chance, in the past, to go through it with much detail?
THOMAS FASSBENDER: No, probably not.
MR. BUTING: I'm going to show it to you for a minute, if you could look at it, please, and --
THE COURT: Is this still Exhibit 142, Mr. Buting?
MR. BUTING: Yes it is.
MR. BUTING: All right. Would you make note of the last page, which is toward the end of the day when people are signing off. You said around 10:00 people were knocking off on -- this is the first Friday, November 5th -- I'm sorry, Saturday, November 5th?
MR. BUTING: Most of the investigation detectives were leaving around 10-ish, something like that?
THOMAS FASSBENDER: Ten, eleven, sure.
MR. BUTING: Okay. And towards the bottom there, it says -- would you read that line, please.
THOMAS FASSBENDER: In military time, 2241 hours, Lieutenant Lenk, Detective Remiker, Sergeant Colborn, out. And, then, must be a call number of the officer that was in control of the log, 492.
MR. BUTING: Okay. And 2241, what is that in regular civilian?
THOMAS FASSBENDER: 10:41.
MR. BUTING: Okay.
MR. BUTING: All right. So the log shows that Lieutenant Lenk signed out, from that checkpoint, at 10:41 p.m. on November 5th, correct?
THOMAS FASSBENDER: Yes. If this is all November 5th, yes.
MR. BUTING: Okay. Well, if you take a minute and look through there and show me where Lieutenant Lenk signed in, if at all.
MR. KRATZ: Judge, I'm going to object. That assumes a fact that's not into evidence, that Lieutenant Lenk was there before 2:25.
MR. BUTING: Well, we're establishing this.
MR. KRATZ: Well, if you're establishing that at all, that would be hearsay. If that's what he's using it for, he's assuming a fact that's not in evidence.
THE COURT: I understand the question to relate simply to whether or not there is a sign in for Mr. Lenk at some earlier point in time.
MR. KRATZ: With respect to the Court and counsel, then, he should ask that question, Judge, not show me where Lieutenant Lenk signed in, if he's on that form.
THE COURT: I will allow you to go into that on redirect.
MR. KRATZ: Thank you, Judge.
THOMAS FASSBENDER: And the question was?
MR. BUTING: The question is, do you see an entry that Lieutenant Lenk signed in anywhere on that log on November 5th?
THOMAS FASSBENDER: No, sir, I did not.
MR. BUTING: All right. Now, correct me if I'm wrong, feel free, but there's a couple of possibilities of why that might be. One is that Detective Lenk bypassed the checkpoint somehow, right?
THOMAS FASSBENDER: Yes, that checkpoint.
MR. BUTING: And we have -- You have testified already that that is the checkpoint to get in that area and no one is supposed to come and go without getting checked in, right?
THOMAS FASSBENDER: In that particular area down by the car crusher, yes.
MR. BUTING: Okay. And the car crusher is the closest checkpoint -- one of the closest check areas to the RAV 4, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: Another possibility is that he was -- Lieutenant Lenk arrived and was at the scene before that log was even begun, right?
THOMAS FASSBENDER: Right.
MR. BUTING: Do you know Detective Lenk before this investigation?
MR. BUTING: So, did you know him by sight at all before this investigation? Would you be able to recognize him if he showed up at Avery salvage?
THOMAS FASSBENDER: No, I don't believe so.
MR. BUTING: Okay. Do you know whether you saw this person, now known as Lieutenant Lenk, at the Avery Salvage when you arrived at about 2:00?
THOMAS FASSBENDER: I don't recall.
MR. BUTING: Okay. So you have no recollection of seeing him arrive yourself?
THOMAS FASSBENDER: No recollection.
MR. BUTING: Or recollection of him even being there when you arrived?
THOMAS FASSBENDER: Correct.
MR. BUTING: Okay. By the way, if I may divert for just a second, you said -- When you talked about putting together some teams, you said that you had actually trained certain individuals in one of these evidence processing teams from Manitowoc?
THOMAS FASSBENDER: A couple of them.
MR. BUTING: Would you just tell me who, the names of those people?
THOMAS FASSBENDER: Detective Remiker and Sergeant Colborn.
MR. BUTING: Okay.
THOMAS FASSBENDER: Not in evidence collection.
MR. BUTING: Not in evidence collection?
MR. BUTING: So whatever personal knowledge you had about their training had nothing to do with their skill in that specific field of collecting evidence?
THOMAS FASSBENDER: Correct.
MR. BUTING: Okay. When you came into this case, I assume you were not considering the possibility that some law enforcement officer would actually plant evidence against Mr. Avery, were you?
MR. BUTING: Have you ever encountered a case where you had to deal with that issue?
THOMAS FASSBENDER: I worked in public corruption for 12 years with white collar crime, and planting evidence, I don't believe I have ever had a police officer do that.
MR. BUTING: All right. So when you came to the scene, your focus was not on making sure that no police officer would do something that bad, like plant evidence, right? That wasn't part of your focus when you arrived?
THOMAS FASSBENDER: Certainly.
MR. BUTING: Okay.
MR. BUTING: I'm sorry, counsel, could we put up Exhibit 86 again, our most common exhibit so far.
MR. BUTING: All right. Could you show us, again, where this checkpoint area was or -- Strike that. Show me where, when you drove down to the RAV 4 area, or the southeast corner of that property, show me where you parked? Or did you drive, or walk, I'm sorry?
THOMAS FASSBENDER: I believe, the first time I went down there I drove.
MR. BUTING: Okay. And show me about where you parked. Could you maybe zoom it up one level? Okay. That's good.
THOMAS FASSBENDER: I believe it was probably right in this area, right here.
MR. BUTING: Kind of right next to the crusher? Like here's the crusher, right?
THOMAS FASSBENDER: You know, I can't remember exactly, but I would say a little south of the crusher. Probably be just -- not halfway in between that pond area and the crusher, but further south of the crusher a bit.
MR. BUTING: Well, did you do a report that sort of summarized your involvement during that week?
MR. BUTING: I'm not going to mark this right now, unless we later need it. But for the record, is this one of your reports?
THOMAS FASSBENDER: Yes, it is. It's a DCI report, report No. 180, Case File 051776.
MR. BUTING: Okay. And this is a report that you prepared when, back in November of 2005?
THOMAS FASSBENDER: Report date 12/9/05.
MR. BUTING: Okay. But closer in time to the events than we are today, obviously?
THOMAS FASSBENDER: Certainly.
MR. BUTING: I want you to take a moment and read this to yourself, this paragraph to yourself, and see if that refreshes your recollection about where you parked.
THOMAS FASSBENDER: Okay.
MR. BUTING: Okay. I will leave it here in case we need it again, but does that help refresh your recollection a little bit?
THOMAS FASSBENDER: It does. It's similar to what I said.
MR. BUTING: Where it says just west of the crusher, right?
THOMAS FASSBENDER: Near and just west of the crusher.
MR. BUTING: So, in this area, but now you're thinking maybe a little bit further down here?
THOMAS FASSBENDER: Maybe not. I thought I was a little further south to the crusher when I look at the pictures. Whether it was just west of the crusher, I'm not sure. It may have been.
MR. BUTING: In any event, from the crusher, from where you parked, would be at least somewhat closer to the location of the RAV 4 than it would be if you were all the way at the crusher itself, by however many feet you parked away?
MR. BUTING: Okay. And from that distance you indicated you were still quite a distance away, right?
MR. BUTING: And so much so that you pulled out some binoculars to be able to view the RAV 4 from that distance?
THOMAS FASSBENDER: I didn't pull out some binoculars, I think someone at the scene had some and they let me use them.
MR. BUTING: Okay. Well, at this time you think it was 2:25, so your understanding was that the first officers arrived at 11?
THOMAS FASSBENDER: I believe so.
MR. BUTING: And this was, as you described it, at that point, I think you said this on direct, this RAV 4 was, at that point, the major piece of evidence on this property, that you knew of?
MR. BUTING: That was it. That's the focus. That's the big -- That's the missing woman's car --
MR. BUTING: --right?
MR. BUTING: And when you arrived up there, having already been briefed at the Command Post, you knew about this issue with the appearance of a conflict for Manitowoc County, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: And then, yet, you discovered that it wasn't until 3:00, approximately, that a Calumet deputy took over responsibility for trying to secure that major piece of evidence?
THOMAS FASSBENDER: I don't know that for sure as I sit here, but it may have been.
MR. BUTING: Well, maybe just so the record is clear, you have one advantage of being a witness here today in that you haven't been sequestered, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: You have been able to sit here at the trial along with Mr. -- or Investigator Wiegert, and hear most of the testimony, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: And you heard, I think it was with Sergeant Orth, testimony that there was at 3:04 p.m. -- or maybe it was Lieutenant Hermann, I may be mistaken, that it was 3:04 p.m. that Manitowoc Deputy Sheriff Cummings transferred responsibility for security of that vehicle to a Calumet County deputy?
THOMAS FASSBENDER: I'm not disputing it, I just don't independently recall that bit of testimony.
MR. BUTING: You don't recall the time, or don't recall the testimony?
THOMAS FASSBENDER: When he said what time he turned it over.
MR. BUTING: So, you wouldn't disagree with me that it was 3:00?
THOMAS FASSBENDER: I have no reason to.
MR. BUTING: Okay. So did it cause you concern that for four hours the major piece of evidence in this case was under the control of the very department that had already been determined to have a conflict of interest in this case?
MR. KRATZ: Objection, Judge. I think it's a mischaracterization. The word conflict is, in fact, a mischaracterization.
MR. BUTING: I will rephrase it. I know what counsel is talking about.
MR. BUTING: Did it cause you concern that, for four hours, the major piece of evidence in this case was under the control and security of the one department that, itself, determined to have an appearance of a conflict of interest?
THOMAS FASSBENDER: No, it didn't. I was not involved in that decision making. I knew that officers were on that scene, protecting that scene.
MR. BUTING: You weren't involved in that decision making at all, because that took place before you got there?
THOMAS FASSBENDER: Correct.
MR. BUTING: Okay. And the fact, you were trying to shape things up a bit and make sure that logs were taken and all of that when you arrived?
THOMAS FASSBENDER: I suggested a log be kept.
MR. BUTING: Okay. So it didn't concern you that there was going to be an appearance that the fox was guarding the hen house, so to speak; is that right?
THOMAS FASSBENDER: Absolutely not.
MR. BUTING: Okay. Well, did you suggest that Manitowoc back off and that the Calumet deputy take over? Was that part of your decision?
THOMAS FASSBENDER: I don't believe so. It happened, but I don't believe that was specifically my decision.
MR. BUTING: So it was just coincidental that it happened around the time you arrived?
THOMAS FASSBENDER: Probably, yes.
MR. BUTING: All right. Now, at that point, you were already designated as co-leader?
THOMAS FASSBENDER: No, I don't think so. I think that happened when Detective Wiegert got back and we -- I can't remember when exactly, if it was after Brutus alerted, or before, but we were having a briefing at the command center and a determination was made and we were asked to do that.
MR. BUTING: Okay. So, that's -- All right. That's fine. So that was after Investigator Wiegert came back with the search warrant?
MR. BUTING: And that was about 3:35, I believe, right?
THOMAS FASSBENDER: I believe so, 3:25, 3:35 and it was even later than that, I believe.
MR. BUTING: The designation was later than that?
MR. BUTING: Sure. I understand. So, then, just so we're clear, when you got there, the leader of the investigation, Investigator Wiegert, was not present on the property?
THOMAS FASSBENDER: He was not present. I don't even know if he was the leader or not, but he was not present.
MR. BUTING: And there were no prosecutors present?
THOMAS FASSBENDER: When I got there, I can't remember. I know they were there at some time, I just can't remember if they were there then.
MR. BUTING: Well, if you look at Exhibit 142, see if that refreshes your recollection as to when any of the district attorneys involved returned to the property.
THOMAS FASSBENDER: I see an indication at what appears to be 3:32 p.m.
MR. BUTING: 3:32?
THOMAS FASSBENDER: 3:32 p.m. Manitowoc County District Attorney and Assistant District Attorney on the scene. That is not saying whether they were there earlier than 2:25 or not.
MR. BUTING: Okay. What about Mr. Kratz or his assistant?
THOMAS FASSBENDER: 4:03 p.m., Assistant District Attorney from Calumet County, Jeff Froehlich. And then there's an entry at 4:17 for both district attorneys returned.
MR. BUTING: All right. That's good enough for now, I guess. So during that period of time, then, until Investigator Wiegert came -- or came back with a search warrant, or until the district attorneys came, did you view yourself as sort of an agent in control, or not; you were still an outsider, so to speak?
THOMAS FASSBENDER: Yes, I did not view myself as an agent in control of anything.
MR. BUTING: Okay. That's fine. At some point, though, that did happen. And Sheriff Pagel, I believe it was, requested you to be a co-leader?
THOMAS FASSBENDER: Probably, yes.
MR. BUTING: And then, you mentioned that you had some meetings and discussions about trying to develop some kind of a search plan?
MR. BUTING: And the first thing you did was this, you called it a sweep of all the properties, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: And like you said, this was a missing person case still, but you came into this thinking something more, didn't you.
THOMAS FASSBENDER: Yes, based on what I knew at the time, plus, to me just good practice to do that.
MR. BUTING: Okay. Something more, even including a homicide, right?
THOMAS FASSBENDER: True.
MR. BUTING: And, in fact, the search warrant applications that were prepared told the Court they were looking for evidence, including evidence of a possible homicide, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: And that was -- that took place even before you got to the scene?
MR. BUTING: Okay. And so, in part, because of that, I believe you testified on direct that you wanted to make sure that you didn't miss anything in this investigation, that it could be a lot more than just a missing person, it could be homicide. So you wanted to make sure that nobody missed anything, right?
THOMAS FASSBENDER: You try to do that, as a concept, to go in with that mentality.
MR. BUTING: All right. Let me go through some of these searches, briefly, with you. If I told you that on November 5th, at 3:48 p.m., the first entry was made to Mr. Avery's trailer for this sweep type search; does that fit with your recollection?
THOMAS FASSBENDER: That sounds right.
MR. BUTING: Detective Remiker and Deputy Steier?
MR. BUTING: Two of them went in, it was a quick 10 minutes in and out of the building, looking to see if there was a live person there, Teresa, right?
MR. BUTING: And then they went on to other buildings and, you know, doors were being kicked in, if necessary to get in, because you were looking for, hopefully, still a live person?
THOMAS FASSBENDER: Yes, there were multiple teams, not just that one team, I think.
MR. BUTING: Okay. And then immediately after they left Mr. Avery's residence, the trailer, the same team immediately went right into the detached garage sitting next to his trailer as well?
THOMAS FASSBENDER: I think so, yes.
MR. BUTING: Again, a quick entry, look around to see if there's anybody there, alive or otherwise?
MR. BUTING: But in neither instance was anything seized?
THOMAS FASSBENDER: Not that I know of.
MR. BUTING: Okay. And, then, you did mention that, I think, the next level of searches sort of right after the sweep, and the sweep was also to make sure that there's nobody there that could harm the officers, some gunmen, armed gunmen, or something like that, right?
THOMAS FASSBENDER: For our protection, yes.
MR. BUTING: That's routine procedure?
THOMAS FASSBENDER: Correct.
MR. BUTING: Okay. But the next level of search after that was these dogs. You said there were like nine cadaver or human remains type dogs?
THOMAS FASSBENDER: A combination of human remains, mixed, and live.
MR. BUTING: So all different kinds of dogs, but search dogs?
MR. BUTING: And they started going through everything, right, as quickly as they could?
THOMAS FASSBENDER: Primarily the vehicles in the salvage yard.
MR. BUTING: Okay. And we -- we heard about this indication or alert that this dog, Brutus, did in the bathroom of Mr. Avery's trailer, right?
MR. BUTING: You heard that testimony today?
MR. BUTING: But you were aware that there were other alerts, many alerts, all over that property, right?
THOMAS FASSBENDER: There were other alerts, yes.
MR. BUTING: Including right at the front door of Chuck Avery's trailer, residence, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: Now, Chuck Avery, Mr. Avery's brother, also lived on the property, right?
MR. BUTING: And in fact, his trailer is the closest trailer to the RAV 4 that was discovered, closest residence, right?
MR. BUTING: Maybe if you could zoom out one --
MR. BUTING: -- degree, please, counsel?
MR. BUTING: Could you point where Chuck Avery's residence was on there, or is?
THOMAS FASSBENDER: I will have to squint a little bit here, but I think it's right there.
MR. BUTING: Okay. And there were other hits, other buildings and cars, and kind of all over the place, initially, right?
MR. BUTING: So it's not like Steven Avery's bathroom, where he shaves, is the only place that any dog alerted on that 40 acre property?
THOMAS FASSBENDER: Yes, sir, that's correct.
MR. BUTING: All right. Okay. Then you broke up into teams. Well, actually, let me go back for just a minute before I -- A number of times, let me just clarify that. A number of times you said this was a general search plan you were trying to put together at that stage, right?
THOMAS FASSBENDER: Beginning with the sweeps?
MR. BUTING: Yeah, the whole plan from when you got there.
THOMAS FASSBENDER: Trying to put a plan together, certainly, yes.
MR. BUTING: And that it was fluid, that it adjusted based on information, new information, you might get or not get, right?
THOMAS FASSBENDER: Throughout the entire time we had that property, yes.
MR. BUTING: Okay. Well, I think you said on direct, though, that you weren't -- when you set up that very first plan, that you really weren't sure what you were searching for.
THOMAS FASSBENDER: We had a search warrant that indicated items that we were searching for.
MR. BUTING: Right. And in that search warrant -- I mean, you took us off a little with an example of a case where some pathologist told you, maybe look for a knife with a serrated blade or something, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: In this case, though, you didn't have that kind of information yet.
THOMAS FASSBENDER: That's right.
MR. BUTING: You said you were looking at this investigation already as a homicide, potentially?
MR. BUTING: And your search warrant told you to look for any kind of instrumentologies (sic) that could cause a homicide, including knives, right?
MR. BUTING: Firearms, right?
MR. BUTING: Whatever else could be used, items to bludgeon someone, anything like that, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: So the officers did know to look for all those kinds of items, at least?
THOMAS FASSBENDER: They should have, yes.
MR. BUTING: All right. So -- So, then, after the first entries, after the very first brief sweep of Mr. Avery's trailer, you then sat down to put together a team who could actually start collecting evidence -- search and collect evidence, not just do these sweeps?
MR. BUTING: And, again, I'm assuming that foremost in your mind was that you wanted to make sure that this was going to be a fair investigation and a fair search of anyone's property on that 40 acre parcel, right?
THOMAS FASSBENDER: Of course.
MR. BUTING: And so you would not knowingly have assigned officers to certain duties, if you had known that they might be in a situation where there's an appearance of a conflict of interest, right?
THOMAS FASSBENDER: Again, I have trouble with the word appearance. If there's a definite conflict of interest, that would be a concern of mine.
MR. BUTING: All right. Well, let me ask it this way, sir. Did you know, on that day, November 5th, when you are putting this team of searchers together, did you know that Lieutenant Lenk had been deposed as a witness in Mr. Avery's civil lawsuit, just three weeks earlier?
THOMAS FASSBENDER: No, I didn't.
MR. BUTING: Did you know that Sergeant Colborn, Sergeant Andrew Colborn, had also been deposed as a witness just three weeks earlier?
THOMAS FASSBENDER: No, I didn't.
MR. BUTING: And neither Sergeant Colborn nor Lieutenant Lenk told you those -- that fact, did they?
THOMAS FASSBENDER: Not to my recollection, no.
MR. BUTING: As a matter of fact, when did you first learn that they had been deposed; was it at my behest?
THOMAS FASSBENDER: It may have been. I don't know if I knew before then, at a hearing.
MR. BUTING: A hearing in August?
THOMAS FASSBENDER: That may have been.
MR. BUTING: That was your first -- the first time anybody told you, hey, these guys were deposed as witnesses, with Mr. Avery sitting right there?
THOMAS FASSBENDER: I don't remember if that was the first time.
MR. BUTING: All right. But, surely, you didn't know it anyway on November 5th?
THOMAS FASSBENDER: Correct.
MR. BUTING: And if you had known that, if you had known that these two officers who you were assigning to go into Mr. Avery's residence, a person of interest, if you had known that those two officers had been deposed as witnesses in that civil case, you would not have assigned them to that duty would you?
THOMAS FASSBENDER: That's not correct. Based on what I know now --
MR. BUTING: I'm asking you your knowledge then. Are you telling me that you would have, even if they had -- if they had told you, and if you had known, that they were witnesses in that civil case, you would have still assigned Lenk and Colborn, to the evidence team that went into Mr. Avery's residence?
THOMAS FASSBENDER: Number one, I needed evidence technicians. Number two, I would have asked --
MR. BUTING: Your Honor --
THOMAS FASSBENDER: -- them what it related to.
MR. BUTING: -- this is a yes or no answer. He can explain it on redirect.
THE COURT: That's correct, it is a yes or no answer.
THOMAS FASSBENDER: Based on -- I guess repeat the question again. I'm saying yes.
MR. BUTING: You are saying that even if you had known that Lenk and Colborn had been witnesses in the civil lawsuit, three weeks earlier deposed in Mr. Avery's civil lawsuit, you would have still assigned them to go search Mr. Avery's residence?
THOMAS FASSBENDER: There's more to the answer. You want yes, I will tell you yes right now, but there's more to that answer.
MR. BUTING: All right. Well, let me talk about what your resources were. You, by that time, had other people who could go in that -- Mr. Avery's residence and search, didn't you?
THOMAS FASSBENDER: We were looking for trained evidence technicians and we put a team together with them. I don't know of any other people that I would have used for that.
MR. BUTING: Well, you had another team, didn't you? You had another team search other areas, other buildings on that property?
THOMAS FASSBENDER: On Saturday, no. The Crime Lab was there, but they were busy with the vehicle.
MR. BUTING: All right. You had the property for a week?
MR. BUTING: You went in and out of this trailer -- we'll get into how many times during that week -- there would have been no reason for you to rush to search Mr. Avery's trailer, without waiting a few more moments for the Crime Lab specialists to come and search it?
THOMAS FASSBENDER: On Saturday, or another day?
MR. BUTING: Saturday, or even wait until another day. I mean you already knew that Teresa wasn't inside.
THOMAS FASSBENDER: I had a capable and qualified team that could go in there and do the job.
MR. BUTING: All right.
THOMAS FASSBENDER: I sent them in there.
MR. BUTING: And there were certainly other buildings on that property, where other people resided, that did not have a civil lawsuit that required the testimony, at a deposition, of Mr. Lenk and Mr. Colborn, right?
MR. BUTING: Chuck Avery, let's just look at him for a second. It's another residence where the dog alerted, right?
MR. BUTING: Could have sent Lenk and Colborn in there and have someone else go into Mr. Avery's residence to, again, make sure that there's no appearance of some funny business going on?
THOMAS FASSBENDER: Saturday?
MR. BUTING: Yes.
THOMAS FASSBENDER: A possibility. I'm looking at other bits of information also when I'm determining where we're sending in our first team.
MR. BUTING: Well, you sent the first team to Mr. Avery's, because you said that was the obvious place to start.
THOMAS FASSBENDER: Based on several reasons.
MR. BUTING: All right. Let's look at those a little bit. I think right before that, if I recall, you said that Mr. Avery was not the only person being investigated?
THOMAS FASSBENDER: Correct.
MR. BUTING: But that you felt he was the most obvious place to start.
THOMAS FASSBENDER: I had to pick a place to start. The person who last saw that person alive was a pretty logical place to start.
MR. BUTING: But you have done many homicide investigations over the years, right?
THOMAS FASSBENDER: That depends on what you term as many. I'm not going to say I have done hundreds of homicide investigations.
MR. BUTING: But you have done enough, you know about certain patterns, for instance, often the most obvious suspect in a homicide is a spouse, you look at the spouse, right?
THOMAS FASSBENDER: Yes, the people we love the most.
MR. BUTING: Or you look at a boyfriend or an ex-boyfriend, don't you?
MR. BUTING: Or how about a roommate?
MR. BUTING: How about a roommate who doesn't report the victim missing for three, almost four days?
MR. BUTING: That would be somebody you would want to investigate?
THOMAS FASSBENDER: That's a possible area to look at.
MR. BUTING: That would be somebody you want to ask for an alibi?
MR. KRATZ: Judge, I'm going to interpose an objection. If counsel really wants to get into a true motive, I think this going to require advance rulings. I would like to either be heard outside the presence of the jury, or I would object to this line of questioning as it deals directly with the -- (Inaudible.)
THE COURT: All right. The Court is going to excuse the jurors for a few minutes.
(Jury not present.)
THE COURT: You may be seated.
MR. KRATZ: If I may be heard, Judge?
THE COURT: Yes.
MR. KRATZ: Thank you, your Honor. The defense has now introduced into this trial motive, that is, asking this officer, why what Mr. Buting has now identified as several individuals who might have an obvious motive to kill Ms Halbach. The State, as this Court knows, earlier in this case, offered specific evidence, it's called other acts evidence, 904.04 (2), to prove Mr. Avery's motive.
Now that the defense has opened the door, now that the defense has suggested that other people have motive, the inferences that Mr. Avery does not, that is a reasonable inference for the jury to draw, based upon Mr. Buting's questioning of this witness. I am at this time, then, Judge, going to ask the Court revisit, or at least allow additional argument on the issue of other acts evidence.
If Mr. Buting, who now believes that motive is at issue, Mr. Buting and the defense now believes that motive should be considered by this jury as part of the case, and at least by the inference that Mr. Avery does not have a motive, the State would, once again, reoffer those items, which we specifically offered in pre-trial attempts, to address Mr. Avery's motive directly.
This Court has heard, through our opening statement, that we were not going to raise motive as an issue, that we had stayed away because of the Court's previous ruling on this entire issue. But now that Mr. Buting, and now that the defense has raised the issue of motive, I'm going to ask the Court revisit those issues.
THE COURT: Mr. Buting.
MR. BUTING: Judge, I have done nothing of the sort. What we're doing here is cross-examination of this officer, who testified that Mr. Avery was the obvious choice of where to start the investigation. All we're talking about is what's going through his mind, at that day, that time, in terms of where to allocate his resources. And I'm demonstrating his bias towards Mr. Avery, and focus on Mr. Avery, to the exclusion of others. That's all this is going into. There's no motive otherwise being introduced.
THE COURT: All right. I will make a couple of comments. First of all, the Court, by denying the State's other acts motion, did not prohibit the State from introducing any evidence relating to motive. Rather, the Court simply denied the particular mechanisms, if you will, that were proposed by the State, for other reasons related to the law involving the admission of other acts evidence.
With respect to the questions posed by the defense at this point, they don't involve an offer of extrinsic evidence and, therefore, at least at this point, do not raise a Denny issue. The Court is well aware of its prior ruling and I will keep my ears open in the event that happens, but I don't believe it's happened to this point. The focus of the questioning, as I understand it to this point, rather goes to decisions that the officer made in the investigation of this matter and other paths of investigation that could have been followed.
So I'm going to overrule the objection at this point. If the State believes it's going too far, again, I will reconsider it, again, but I'm only ruling on what I heard to this point. You can bring the jury back in.
(Jury present.)
THE COURT: You may be seated. Mr. Buting, you may resume.
MR. BUTING: Thank you. BY ATTORNEY BUTING:
MR. BUTING: I believe we left off with you saying, yes, you would certainly like to investigate it. These are the people you were talking about, the roommate or ex-boyfriend?
THOMAS FASSBENDER: That is an avenue that would be approached, absent other circumstances.
MR. BUTING: All right. And wouldn't you also want to, so you don't miss anything, as you said, investigate an employer who doesn't report an employee missing for three days?
THOMAS FASSBENDER: In relation to the employer reporting, related to this case?
MR. BUTING: Yeah, this case.
THOMAS FASSBENDER: That would be something you would look into possibly, yes.
MR. BUTING: All right. But at any rate, you decided that the first place you would start would be Mr. Avery's trailer, residence?
THOMAS FASSBENDER: Based on information that I had, yes.
MR. BUTING: All right. And you put together, actually, a team of four officers, correct?
THOMAS FASSBENDER: A team of four officers was put together, yes, whether I did it specifically, I don't recall.
MR. BUTING: Three of those four officers are Manitowoc Sheriff's Department employees, right?
THOMAS FASSBENDER: Two investigators and one officer -- or sergeant, yes.
MR. BUTING: And they are Lieutenant Lenk, Sergeant Colborn, and Detective Remiker?
MR. BUTING: And then you also had a Calumet Sergeant Tyson?
MR. BUTING: As part of that team. And that team entered Mr. Avery's residence at 7:30 p.m. on November 5th, Saturday?
MR. BUTING: And they didn't leave until 10:05 p.m.?
THOMAS FASSBENDER: That's correct.
MR. BUTING: Those four officers, searching Mr. Avery's residence, for over two and a half hours?
MR. BUTING: Both sides are having trouble with the electronics in this courtroom, I'm afraid. Let me try something else, we'll see if I can put on one of the slide exhibits. I'm showing you what's Exhibit 102, I think, yes. We heard testimony about this animation before, right?
THOMAS FASSBENDER: That's correct.
MR. BUTING: And this is accurate, I guess, to the inch, or half inch, or something like that; is that what we heard.
MR. BUTING: Zoom out just a bit, there we go.
MR. BUTING: This is the sum total --
MR. BUTING: Zoom out one little bit to show the whole --
MR. BUTING: This is the sum total of residences that you had four officers in for two and a half hours, on the evening of November 5th, correct?
MR. BUTING: And at that time, they were looking for any evidence, including evidence of a possible homicide, right?
THOMAS FASSBENDER: Yes, sir.
MR. BUTING: They were looking for blood, right?
MR. BUTING: Certainly any indication, maybe, that Teresa Halbach had been in that residence?
THOMAS FASSBENDER: Correct.
MR. BUTING: It's a rather small area to search, as residences go, don't you think?
THOMAS FASSBENDER: I suppose, yes.
MR. BUTING: And they seized 50 some items on that occasion, right?
THOMAS FASSBENDER: I don't know how many items they seized on that occasion.
MR. BUTING: And from your knowledge of the investigation later, none of those items were in anyway linked to Ms Halbach, were they?
THOMAS FASSBENDER: That's probably true. I'm not positive.
MR. BUTING: Okay. We'll follow through with that in a minute. And then they left and quit for the night, and the next day they went to search Mr. Avery's garage; is that right?
THOMAS FASSBENDER: Yes. Make up of the team was a little different, though, I think.
MR. BUTING: I'm sorry, you're right. It was Lieutenant Lenk, Sergeant Colborn, Remiker, the same three Manitowoc officers, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: At this time with Deputy Kucharski -- I believe is the way you pronounce it -- from Calumet?
MR. BUTING: So four more officers, this time searching this one room garage; is that right?
MR. BUTING: For 1 hour and 47 minutes, does that sound right?
THOMAS FASSBENDER: I don't know, sounds right.
MR. BUTING: If I told you they entered at 8:00 a.m. and left at 9:47 a.m. on November 6, Sunday morning, would you disagree with that?
THOMAS FASSBENDER: No, I wouldn't.
MR. BUTING: You also mentioned that later that day, on Sunday, after briefing with you, you determined that the officers had seen a couple of firearms in Mr. Avery's residence, and you wanted to send them back in to retrieve those items, right?
THOMAS FASSBENDER: They talked about several items and, yes, we did want to.
MR. BUTING: And so the same team of four, four officers, Remiker, Lenk, Colborn, and Kucharski, went back into Mr. Avery's residence at 12:25 p.m. on November 6th and left at 12:48 p.m.; would you disagree with that?
THOMAS FASSBENDER: No, I wouldn't.
MR. BUTING: So 23 minutes in his residence, again, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: That's now the third -- I'm sorry, the fourth entry to Mr. Avery's trailer?
THOMAS FASSBENDER: Yes, sir.
MR. BUTING: By law enforcement officers?
THOMAS FASSBENDER: Correct.
MR. BUTING: And then later that evening, Sunday evening?
MR. BUTING: You can put the trailer back on.
MR. BUTING: Later that evening, you had a team from the Crime Lab go back into Mr. Avery's residence, the 5th entry, right?
MR. BUTING: Okay. And that's when you said that they came in with alternate light sources and things of that nature, to try and see if there might be other, you know, bloodstains, or something like that, that might have been missed?
THOMAS FASSBENDER: That night they were looking for blood patterns. It's a different night that they used the luminal.
MR. BUTING: And they indicated a few areas that they thought your officers should at least collect. Maybe they are important, maybe they are not?
THOMAS FASSBENDER: Correct.
MR. BUTING: But they didn't themselves collect it, they left it for your officers?
THOMAS FASSBENDER: To my knowledge, yes.
MR. BUTING: And then you said the next day, which would have been Monday, November 7th, Lieutenant Lenk and Sergeant Colborn, and Sergeant Tyson went back into Mr. Avery's residence again, for the computer?
THOMAS FASSBENDER: To take the serial number off the computer.
MR. BUTING: If I told you that they were in for 7 minutes at 9:57 a.m. to 10:04 a.m.; would that fit with your recollection?
MR. BUTING: Now, that's now the sixth entry?
MR. BUTING: By law enforcement to Mr. Avery's residence, right?
MR. BUTING: The following day, the team comes in a little bit smaller. At this time it's just Lieutenant Lenk, and Sergeant Colborn, and Deputy Kucharski, right?
MR. BUTING: This is Tuesday morning, November 8th. If I told you then that they entered at 8:25 a.m. and left at 12:18 p.m.; would that fit with your recollection?
THOMAS FASSBENDER: 8:25. I'm not sure about when they left.
MR. BUTING: All right. And that was the 7th entry to Mr. Avery's residence, and that's the entry that this key was supposedly discovered by Lieutenant Lenk, right?
THOMAS FASSBENDER: Yes, sir.
MR. BUTING: That had been missed in six other entries, correct?
MR. BUTING: And we will hear how it was discovered and how obvious it was, later. I'm not going to ask you about that because you weren't present for the discovery of the key, were you?
THOMAS FASSBENDER: That's correct.
MR. BUTING: You arrived and they said, hey, we have got this key, it's a Toyota key. And you rushed to -- Strike that. You come immediately to take a look at the key and see whether or not something else should be done with it, right?
THOMAS FASSBENDER: What should be done with it, yes.
MR. BUTING: Okay. And you mentioned, let's send it to the Crime Lab and see if it will start the ignition of the Halbach vehicle?
THOMAS FASSBENDER: That's right.
MR. BUTING: And then, I'm just going to go through this quickly, on November 9th, you sent Lieutenant Lenk, Sergeant Colborn and Calumet Deputy, Wendling, back into Mr. Avery's residence, again, looking for a garage door opener I think you said it was, or some things like that?
THOMAS FASSBENDER: Yes, garage door opener.
MR. BUTING: Because, what was it, there was a garage door opener found in Teresa Halbach's RAV 4?
MR. BUTING: And there was some concern that maybe that was the killer's, right?
THOMAS FASSBENDER: That was a thought, and so we looked around the property, not just Steven's residence, to see if we could locate whether they were. In fact, we actually brought that thing up, I think the next day or the day after, to see if it opened any garage door.
MR. BUTING: And it turned out to open Teresa's own garage door?
MR. BUTING: So it was unrelated to the crime?
MR. BUTING: And then, again, later on November 9th, Lenk and Colborn and Wendling went back in for 10 minutes, from 11:40 to 11:51, looking for some missing tool; does that ring a bell?
THOMAS FASSBENDER: That I don't recall. They went in a garage.
MR. BUTING: Okay. That was November 8th when they were looking for a garage -- I'm sorry, they were looking for a tool that was missing from a kit that was in Teresa Halbach's car, right?
THOMAS FASSBENDER: Right. That was -- My recollection is that kind of ran together, this tool was discovered earlier, and that was kind of ongoing. And they went in Steven's trailer to look for the garage door opener and saw some pair of women's gloves, I believe. Then they went into the garages, I think they went into Barb's, in her garage, to look for this tool.
MR. BUTING: Okay. So, let me just finish up with the residence first, and then go back to the garage. You do recall, though, that there was an entry, another entry, which would now be the 8th, 9th entry to Mr. Avery's residence, on November 9th?
THOMAS FASSBENDER: November 9th being Wednesday?
MR. BUTING: Yes.
THOMAS FASSBENDER: And that was the garage door opener, yes.
MR. BUTING: Okay. And then you obtained a second warrant, right?
MR. BUTING: And, then, thereafter, Mr. Avery's residence was again entered, three more times, on November 12th, for two hours and four minutes, by Trooper Austin, to take measurements for these helpful animated computer diagrams, right?
MR. BUTING: And, again, on November 12th, this time, yourself, entering briefly, looking for some kind of document, right?
THOMAS FASSBENDER: I think myself and two of the other investigators, looking for some documents, yes.
MR. BUTING: And, then, I think you did one more quick run through at 9:30 on November 12th, shortly before the property was re-released to the Avery's, right?
THOMAS FASSBENDER: Yes, generally you do a final -- a final sweep.
MR. BUTING: I count 12 entries to Mr. Avery's trailer during that week, by law enforcement; would you disagree with that?
MR. BUTING: Okay. Going back to the garage, I'm not sure, I think I said that after -- that there was the first sweep entry of the garage, right?
MR. BUTING: On the 5th. And then the next morning, when the four officers spent almost two hours in that little garage, on November 6, right?
MR. BUTING: And then there was also one looking for the tool, on November 8th?
MR. BUTING: Lasted about 24 minutes, would you agree with that?
THOMAS FASSBENDER: I'm not sure if that was the 8th or the 9th.
MR. BUTING: One of those two days?
THOMAS FASSBENDER: I thought it was the 9th when they were looking for that emergency roadside tool.
MR. BUTING: Okay. And it wasn't found, right?
THOMAS FASSBENDER: They found a bag that had tools like that in it on a Samurai in there, but did not, ultimately, match up to what we were looking for.
MR. BUTING: And then, without belaboring the point here too much, the garage, Mr. Avery's garage, was entered again on November 9th, for 19 minutes, November 10th, briefly, looking for a hacksaw blade; do you remember that?
THOMAS FASSBENDER: Yes, I believe Agent Sturtivant had done that.
MR. BUTING: And on November 12th, one final time before you released the property?
MR. BUTING: So I count six entries to his garage by law enforcement during that week; would you agree with that?
THOMAS FASSBENDER: Five or six, I wasn't counting along.
MR. BUTING: All right.
MR. BUTING: Judge, do you want to take an afternoon break. Might be a good time.
THE COURT: All right. We'll take our afternoon break at this time. Resume at five minutes to three.
(Jury not present.)
(Recess taken.)
THE COURT: Mr. Buting you may resume your cross-examination.
MR. BUTING: Thank you, your Honor.
CROSS-EXAMINATION CONTD. BY ATTORNEY BUTING:
MR. BUTING: Couple things I wanted to clear up. You mentioned that some firearms -- one of the entries to Mr. Avery's residence was to secure the couple firearms, and a vacuum brush, or something like that; do you remember that?
MR. BUTING: And that there were other firearms also on the other buildings, other residences?
THOMAS FASSBENDER: Yes, buildings, residences, cars.
MR. BUTING: Including one of the firearms taken from Mr. Avery's residence was a .22 Marlin rifle?
THOMAS FASSBENDER: From Steve's residence?
MR. BUTING: From Steve's -- I'm sorry, from Steven Avery's residence, yes.
MR. BUTING: There were also two other .22 Remington -- I'm sorry, .22 Marlin rifles found elsewhere on the property, right?
THOMAS FASSBENDER: Did you say two others?
MR. BUTING: Right.
THOMAS FASSBENDER: I know there is like another Marlin Glenfield or something.
MR. BUTING: That was in Bobby Dassey's bedroom?
THOMAS FASSBENDER: I'm not even sure if that's where that one was. I'm not aware of the other Marlin, if there was one.
MR. BUTING: Barb Janda's?
MR. BUTING: No. All right. You also mentioned at one point, I think on November 8th, that the Wisconsin Crime Lab had to be diverted to some potential burial site?
THOMAS FASSBENDER: Yes, some searches that were being conducted off on the perimeter off the Avery properties had come across a suspicious area that they thought -- and I think the dogs actually went by it -- that it could have been a clandestine burial site.
MR. BUTING: Just to clear up, so the jury is not speculating about that, that turned out to be nothing, right?
THOMAS FASSBENDER: That's correct.
MR. BUTING: Okay. All right. Now, one of the things that you did, let's go back to the 5th, to the RAV 4 site again.
MR. BUTING: Could we put up No. 86, please.
MR. KRATZ: Me?
MR. BUTING: I'm sorry, is it on ours now?
MR. BUTING: All right. You mentioned that it was -- it looked like it was threatening, like it might rain, and so you were concerned about the elements of the RAV 4 and all that, right?
MR. BUTING: And I'm going to show you Exhibit 118 that you identified yesterday. Just take a look and then I'm going to put that one up on the screen for the jury along with these two. Also, show you Exhibit -- that's a picture -- 118, is when the tarp is just being started to be put over the RAV; is that right?
THOMAS FASSBENDER: It's either when it's being put over or taken off.
MR. BUTING: Okay. It's not completely off, right? You are actually in it, right?
MR. BUTING: You are wearing the red?
THOMAS FASSBENDER: Yes. I just don't know if it's on or off, coming on or off.
MR. BUTING: Okay. And let me put that up on the screen while you take a look at those two exhibits and see if you can identify those. All right.
MR. BUTING: Zoom in on that, that southeast corner, please.
MR. BUTING: Okay. Now, once again, just so no one is confused here, especially the jury, this picture is taken -- Exhibit 86 is after the RAV 4 had been removed from the scene entirely, this is like a different day, right?
MR. BUTING: Could you point where the RAV 4 was, right next to that red vehicle, right?
MR. BUTING: Okay. And Exhibits -- what are they, 143 and 144, in front of you?
MR. BUTING: Those are what we're going to put up on the ELMO in a second, but those are photos taken from some place on the north side of this pond, looking towards the RAV 4, while it was still there on November 5th, right?
THOMAS FASSBENDER: I believe so.
MR. BUTING: All right. Then let's try the ELMO, if you don't mind. All right. Just for the benefit of the jury, when we were talking about 118, where we were saying that the tarp is part way on or part way off, whatever, that this is the photo we were talking about, right?
MR. BUTING: And this one is apparently taken from a position somewhere east of the vehicle looking west?
THOMAS FASSBENDER: That's right.
MR. BUTING: Now, at some point, though, the RAV 4 was almost completely covered by this tarp contraption right?
THOMAS FASSBENDER: It was a tarp that we tried to put over the vehicle without touching it, so we were using surrounding trees, or whatever, or cars --
MR. BUTING: Sure.
THOMAS FASSBENDER: -- to do that. So it was more like a cover, canopy type thing that we were trying to accomplish.
MR. BUTING: Okay. And so, we haven't seen any pictures yet of what it looked like when it had -- I think it was probably more than one tarp?
THOMAS FASSBENDER: Not that I remember.
MR. BUTING: You think it's just all one tarp?
THOMAS FASSBENDER: I thought it was. If we used two, I don't recall.
MR. BUTING: Okay. I'm showing you 144 first. And, again, as you testified a moment ago, this is a picture that's taken from some position apparently looks like it's about just on the other side of that detention pond, looking kind of southwest?
MR. BUTING: Okay. And that's what it looked like after the tarp was completely placed on it?
THOMAS FASSBENDER: I would have to agree, only the tarp doesn't look blue there.
MR. BUTING: Okay.
THOMAS FASSBENDER: Might just be the camera.
MR. BUTING: Was the tarp maybe two colored, one side blue, one side gray?
THOMAS FASSBENDER: Possibly, but the first picture showed that the blue side was out.
MR. BUTING: Okay. And so an individual standing -- This appears to be a picture taken, actually, closer to the RAV 4 than one would be if they were standing at the car crusher; would you agree? Isn't that the pond in the foreground right there?
THOMAS FASSBENDER: It looks like it, yeah.
MR. BUTING: Okay. Now, Exhibit 143, looks like maybe is a little bit farther back. I'm going to show you that one right now. Do you see the pond in the foreground there?
MR. BUTING: And the Toyota RAV 4 enclosed or covered by the tarps?
MR. BUTING: So, again, one standing over in this area, watching what might have been going on, or just taking a look at the scene, wouldn't have been able to see the RAV 4 at all, because it was covered; is that right?
MR. BUTING: So the tarps --
MR. BUTING: Your Honor, would it be alright if I published these to the jury, since it's not all that easy to see on the ELMO.
THE COURT: We don't have slides of these?
MR. KRATZ: Sure. You didn't ask me to do that.
MR. BUTING: I couldn't find any. I don't know.
THE COURT: Why don't the two of you get together, off the audio, and see if you can find them quickly. If not --
MR. KRATZ: Which one do you want up first, counsel?
(Off record.)
MR. BUTING: (By Attorney Buting)~ Okay. That is 144, now we're looking at the screen, it has a 144 on it, I believe, doesn't it. Yeah. And then could you -- Just leave it there for a minute. So the purpose for the tarp, at least as far as you were concerned, was to try and protect the vehicle from the elements, if it started raining, right?
THOMAS FASSBENDER: The vehicle, the items covering or concealing it, yes.
MR. BUTING: Okay. And so you tried to drape these over branches and things to not actually touch it?
THOMAS FASSBENDER: Correct.
MR. BUTING: So that there was room around it like, particularly in between the vehicles and -- almost looks like that's a tent type opening or something on the one side of it, right?
THOMAS FASSBENDER: I don't know.
MR. BUTING: All right.
MR. BUTING: Well, that's okay. Just show the other one and then we'll be done with this topic.
MR. KRATZ: Which exhibit number, counsel?
MR. BUTING: That one is 143, isn't it, Special Agent Fassbender?
MR. BUTING: All right.
MR. BUTING: (By Attorney Buting)~ All right. Now, when you searched the property, I mean, you walked around the property over the course of a week, right, and you became familiar yourself with various buildings and their locations?
THOMAS FASSBENDER: To a degree. We were quite busy in the command center that we didn't do that a lot, but to a degree.
MR. BUTING: Well, were you aware from your searches that there was an aluminum smelter located on the property?
THOMAS FASSBENDER: I was informed of that, I never saw it personally.
MR. BUTING: Could we -- Let me mark this and see if this refreshes your recollection.
(Exhibit No. 145 marked for identification.)
MR. BUTING: (By Attorney Buting)~ I'm showing you Exhibit 145, tell me if you have ever seen that, or ever saw that during that week?
MR. BUTING: No. Okay. Well, we'll save this exhibit then. Nevertheless, you were told that there was an aluminum smelter on the property?
MR. BUTING: And that, in fact, at some point during the investigation you were aware that there was someone sent an anonymous letter, that was found at the Green Bay Post Office, that said, body was burnt up in aluminum smelter, 3 a.m., Friday morn, right?
THOMAS FASSBENDER: I'm aware of that letter. The exact verbiage, I'm not sure, but something to that effect, yes.
MR. BUTING: All right. And it was contained in an envelope from the Green Bay Police Department, that had a big sticker on it, flourescent green, that said check for latents, right?
THOMAS FASSBENDER: I believe so, yes.
MR. BUTING: Now, that letter sat in the property department of Calumet Sheriff's Department until I discovered it, just this past November; isn't that right?
THOMAS FASSBENDER: Until you discovered it?
MR. BUTING: Until I pointed it out to you?
THOMAS FASSBENDER: That's where it was, yes.
MR. BUTING: You and Mr. -- Investigator Wiegert were present when I found this particular letter in the property inventory, right?
MR. BUTING: And was only then that it was sent to the Crime Lab to be analyzed for any sort of prints or anything, right?
THOMAS FASSBENDER: I believe so, yes.
MR. BUTING: Is that because the body being burnt in the smelter didn't fit your theory that Mr. Avery was guilty of this crime?
THOMAS FASSBENDER: I felt it didn't fit the facts and the evidence. That smelter was examined by arson investigators and they determined that it didn't appear to have been used for a while.
MR. BUTING: Did you suggest any DNA or the anthropologist examine it to see if there were any bone fragments?
THOMAS FASSBENDER: The particular arson investigator that examined that is the one that found most of the bone fragments in the burn area.
MR. BUTING: And if that smelter had been used to burn the body, though, that would really tend to indicate that Mr. Avery wasn't guilty of this crime, because it would not make sense to burn the body in the smelter, take the bones and place them on your own backyard, would it?
MR. KRATZ: Objection, speculation. Judge, we're not getting into what makes sense about what Mr. Avery did, are we?
THE COURT: I will sustain the objection.
MR. BUTING: All right. I will move on.
MR. BUTING: (By Attorney Buting)~ Let me just fast forward a little bit here to February and March of 2006, okay. Are you with me?
MR. BUTING: All right. By that time, through all of your investigation, you knew that as of that time, you had found no physical evidence linking Teresa Halbach to Mr. Avery's trailer or garage right up to February 28th?
THOMAS FASSBENDER: I don't believe that's accurate.
MR. BUTING: What did you find?
THOMAS FASSBENDER: We found shell casings in the garage that did match up to the rifle in the house.
MR. BUTING: This is a junkyard, people shoot guns all the time, right? I mean, you found shells all over the place, 40 acres, right?
THOMAS FASSBENDER: Oh, certainly, yes.
MR. BUTING: Junkyard, these people were sighting rifles, you knew that, shooting rabbits, the mere existence of shells, without a link to a particular body, doesn't prove anything, does it?
THOMAS FASSBENDER: I don't know if at that time our anthropologist had indicated -- I can't -- indicated that there was possible bullet holes in the skull or not, but that would be --
MR. BUTING: But if there were, the shells didn't link to that anyway, did they?
THOMAS FASSBENDER: The shells linked to a rifle found in the trailer, that's all it was.
MR. BUTING: Right, which could have had nothing to do with this offense, as far as you knew, at that time?
THOMAS FASSBENDER: It could have been, you know, we just -- No, we didn't know.
MR. BUTING: Okay. And you mentioned on direct, something about blood stains, and the Crime Lab finding little extra areas. So the jury is not left speculating for the next week, about whether those were ever found to be Teresa Halbach, they were not; isn't that right?
THOMAS FASSBENDER: That's correct.
MR. BUTING: None of those blood stains matched anyone except Mr. Avery?
MR. BUTING: All right. And it was only on a subsequent search, around March 1st and 2nd, that a bullet, any bullets, any fragments of bullets, or bullets themselves, were found in Mr. Avery's garage, right?
THOMAS FASSBENDER: Yes, sir.
MR. BUTING: Now, were you present for the execution of search warrants for Mr. Avery's trailer and garage, again, on March 1st and March 2nd?
THOMAS FASSBENDER: March 1st only, I believe, and just the beginning, the execution of it and maybe half hour, hour.
MR. BUTING: Okay. And you are aware that they were doing more of these logs, checking people in and out of the scene, as should be standard procedure, right?
MR. BUTING: And you are probably on here somewhere, there you are. If you could identify Exhibit 147 for me, please.
THOMAS FASSBENDER: This looks like a entry log dated March 1, 2006, at 3:30, 1530 hours, Avery Road, State Trunk Highway 147. This would have been a log-in sheet out away from the two scenes of the residence and the garage. More of an entry type log-in sheet --
MR. BUTING: All right.
THOMAS FASSBENDER: -- for everyone coming down that road.
MR. BUTING: So anybody who is coming back on the Avery salvage property, that 40 acre area; is that right?
THOMAS FASSBENDER: I believe so, yes.
MR. BUTING: And Exhibit 146 -- I had those backwards, sorry.
THOMAS FASSBENDER: And this is March 2 appearing to be the same type of log -- sign-in log, probably in the same area, more of entry log --
MR. BUTING: Okay.
THOMAS FASSBENDER: -- for that area.
MR. BUTING: All right. You arrived at 1735, 5:35 p.m., right?
MR. BUTING: Can you tell me who arrived at 6:10?
THOMAS FASSBENDER: 1810 hours, Lieutenant Lenk from Manitowoc County Sheriff's Department.
MR. BUTING: Lieutenant Lenk. Did you ask him to come to the scene?
THOMAS FASSBENDER: I don't recall if I personally asked him to come to the scene or not.
MR. BUTING: This was now five months after the original searches for that week of November, approximately?
THOMAS FASSBENDER: About four months, yes.
MR. BUTING: Certainly wasn't necessary, on that occasion, for Mr. Lenk to arrive, to be somebody who would help search Mr. Avery's residence or garage again, was it?
THOMAS FASSBENDER: No, I don't believe he did search there. I think some of his personnel were there. And he, as their supervisor, I don't know if that's why he stopped out there.
MR. BUTING: Is that his name squeezed in there, almost as an afterthought, on the second to the last line?
MR. KRATZ: I'm going to object. It's argumentative, Judge, as afterthought, it's absolutely improper.
MR. BUTING: I'm sorry, counsel is right.
THE COURT: All right. I take it the question is being withdrawn.
MR. BUTING: I will withdraw the question, yes, thank you, sir.
MR. BUTING: And do you see Mr. Lenk again at the scene the following morning?
MR. KRATZ: I'm going to object, didn't Mr. Fassbender say he wasn't there the next day?
THE COURT: Mr. Buting, you might want to rephrase the question.
MR. BUTING: (By Attorney Buting)~ Did you see Mr. Lenk's name on Exhibit 146 as having logged in and entered the scene, again, the morning of March 2nd?
MR. BUTING: And at what time would that be?
THOMAS FASSBENDER: 8:49 a.m.
MR. BUTING: All right. I will put it up quickly on the ELMO. Now, this search is the search that -- that -- where a couple of bullet fragments were discovered, right?
MR. BUTING: Five months after the previous searches, four months, my math is bad I guess, four months?
MR. BUTING: Okay. And it's not like you weren't looking in the first search, or having your officers look in that first -- what was it, five entries to his garage, the week of November 1st, or 5th to the 12th, they were looking for small items like that, right?
THOMAS FASSBENDER: Some of those searches were very specific for items, some were not. Some were overall searches.
MR. BUTING: Okay. And, in fact, in one of the searches, one of those five entries at least, police did recover, you said, a number of shells to a .22 rifle?
THOMAS FASSBENDER: Shell casings laying on the floor.
MR. BUTING: Okay. So, not much bigger than the bullet fragments that were found on March 1st and 2nd?
THOMAS FASSBENDER: Actually, probably quite a bit bigger, in comparison. If you have a bullet fragment like that, and a shell casing like that.
MR. BUTING: But this was your crack team of searchers, right, the best you had out there?
THOMAS FASSBENDER: This is the team I sent there, yes.
MR. BUTING: Okay. And they did bring shells back, but no bullets, right?
THOMAS FASSBENDER: The shells were laying in the middle of the floor, basically.
MR. BUTING: At that time, though, none of the investigators knew that there would be evidence from the anthropologist that suggested that perhaps Teresa Halbach had actually been shot in the head, with cranial pieces, did they? That information came later?
THOMAS FASSBENDER: True, yes.
MR. BUTING: Shortly before this March 1st and March 2nd search?
THOMAS FASSBENDER: I don't know. I'm not sure when that information came.
MR. BUTING: So -- Well -- Let me just see if I can refresh your recollection. Well, I don't want to waste time right here, but -- At any rate, I will move on. By that time you did know, though, that -- and that is, what I'm talking about here is, by March 1st and March 2nd, of 2006, which are important dates in this investigation, you know this, right?
MR. BUTING: Additional search warrants were issued, right?
MR. BUTING: By that time, you knew that the mattresses, both bedroom mattresses had been thoroughly examined by -- visually and otherwise, for blood, and no blood was found, right?
THOMAS FASSBENDER: By March 1st and 2nd?
MR. BUTING: Yeah, before that date. You know officers had gone into the -- stripped the bedding, right?
THOMAS FASSBENDER: Yes, I just don't recall if we took the mattresses.
MR. BUTING: Okay.
THE COURT: Mr. Buting, can you specify what mattresses we're talking about?
MR. BUTING: Okay.
THE COURT: I'm not sure that was done.
MR. BUTING: (By Attorney Buting)~ All right. Let me put it this way, in the first -- What did we have, 12 entries to Mr. Avery's residence, no blood was seen on the mattress in Mr. Avery's bedroom, right?
THOMAS FASSBENDER: I don't believe so.
MR. BUTING: And no blood was seen on any of the sheets or bedding?
THOMAS FASSBENDER: I believe that's correct.
MR. BUTING: And you have been to the murder -- I don't know how many murder scenes you have been to, but you have been to bloody murder scenes before, right?
MR. BUTING: Stabbings?
MR. BUTING: You are familiar with castoff blood spatter?
MR. BUTING: That is, if somebody is stabbing a person who's laying on a mattress in the middle of Mr. Avery's bedroom, repeatedly, there may be blood spatter on the ceilings and walls from the knife?
THOMAS FASSBENDER: There may be.
MR. BUTING: And there was none in this case, right?
THOMAS FASSBENDER: None that we found.
MR. BUTING: And no clumps of a woman's hair that were found cut off anywhere in the bedroom?
THOMAS FASSBENDER: That's correct.
MR. BUTING: No trail of blood as one would expect if you carry a body that's been stabbed, on the mattress of Mr. Avery's bedroom, through the house and out the backdoor?
THOMAS FASSBENDER: Unless it was cleaned up, no, we didn't see anything.
MR. BUTING: And outside on the back porch or on the front porch, that wooden deck, no blood trail dripping, right?
THOMAS FASSBENDER: If they would have went that way. They could have went out the backdoor also.
MR. BUTING: All right. Which has a little stoop, concrete steps?
MR. BUTING: No blood in their, right?
THOMAS FASSBENDER: Not that I know of.
MR. BUTING: No blood trail leading into the garage of Mr. Avery, or out?
THOMAS FASSBENDER: Into the garage, or out? Outside the garage, no, not that I know of.
MR. BUTING: Okay. And inside the garage, a few blood stains, but not Teresa Halbach's blood, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: So, in short, then, by March 1st and March 2nd, when those search warrants were issued, four months of investigation had found not one shred of Teresa Halbach's DNA anywhere in Mr. Avery's trailer or garage; isn't that right, sir?
MR. BUTING: Thank you.
THE COURT: All right. Redirect, Mr. Kratz?
MR. KRATZ: Absolutely.
REDIRECT EXAMINATION BY ATTORNEY KRATZ:
MR. KRATZ: Agent Fassbender, describe for the jury the circumstances surrounding what Mr. Buting now calls the discovery of this letter from Green Bay; why were you with Mr. Buting?
THOMAS FASSBENDER: Mr. Buting was being allowed to look at the evidence that was in our possession or in the Calumet County's possession.
MR. KRATZ: Do you remember who else was present?
THOMAS FASSBENDER: I believe Attorney Strang was there also.
MR. KRATZ: Do you remember Mr. Gahn being there?
MR. KRATZ: Do you remember Mr. Buting asking the prosecution if that letter could be dusted for prints?
MR. KRATZ: Do you remember agreeing to do that for Mr. Buting?
MR. KRATZ: Not forcing Mr. Buting to go to his own lab, but you would do it for him; is that right?
THOMAS FASSBENDER: That's correct.
MR. KRATZ: And even though this letter had to do with the smelter, had you already eliminated the smelter as a place where Ms Halbach could have been burned in this case?
MR. KRATZ: Now, wait a second, you have already eliminated the smelter and this letter has nothing to do with the case, why did you send it off for prints for Mr. Buting?
THOMAS FASSBENDER: Because he asked us to do it.
MR. KRATZ: Mr. Buting also asked you to look at some photos today. I think it's Exhibit 142 and 143, of some tarps; do you still have them up here?
THOMAS FASSBENDER: No, I don't.
MR. KRATZ: Do you know where those exhibits are?
MR. BUTING: I will get them, I think I put them back. Just 142 and 143?
MR. KRATZ: For now.
MR. KRATZ: Is this Exhibit 142, Mr. Fassbender?
THOMAS FASSBENDER: No, I have got 143 and 144 here.
MR. KRATZ: Well, look at the screen here. I want to know which exhibit this is.
THOMAS FASSBENDER: That -- I believe that's 144, yes, 144.
MR. KRATZ: All right. Mr. Buting asked if, from this vantage point, if a law enforcement officer would be able to see the SUV; do you remember that question?
MR. KRATZ: What was your answer?
THOMAS FASSBENDER: Well, I can see where the SUV was tarped.
MR. KRATZ: All right. You can't see the SUV, though, can you?
MR. KRATZ: Do you know where you were when this picture was taken?
THOMAS FASSBENDER: I may have been by the SUV doing the tarping.
MR. KRATZ: That's 143 and 144. This was the second exhibit that Mr. Buting showed you. Do you have this up there, Mr. Fassbender?
THOMAS FASSBENDER: 143, yes.
MR. KRATZ: Once again, the suggestion that if you were from this location you couldn't see if somebody was approaching or tampering with the vehicle?
MR. BUTING: I object to that specific suggestion. That wasn't my question.
MR. KRATZ: Certainly the inference, Judge, that's why he showed it, otherwise it has no relevance.
THE COURT: Why don't you rephrase the question?
MR. KRATZ: All right.
MR. KRATZ: Do you remember Mr. Buting's line of questioning about not being able to see this vehicle?
MR. KRATZ: Okay. Now, as we learned earlier in this trial, you put your cursor over a digital photo, says the date that it was taken, 11/5 and 4:16 p.m.; do you see that on the screen?
MR. KRATZ: Okay. And exactly the same time and date as the previous picture; do you see that?
THOMAS FASSBENDER: Yes, I do.
MR. KRATZ: The picture right before that that Mr. Buting did not want you to see --
MR. BUTING: Objection to that.
THE COURT: Sustained.
MR. KRATZ: I will rephrase it.
MR. KRATZ: (By Attorney Kratz)~ The picture that Mr. Buting did not show the jury shows a bunch of people walking up at the same time, the same location, towards the SUV; do you see that picture?
THOMAS FASSBENDER: Yes, I do.
MR. KRATZ: And whether or not Mr. Buting has it in his possession, are you one of those people?
MR. KRATZ: Are you walking towards that tarped SUV that Mr. Buting suggested you couldn't see?
MR. KRATZ: One picture after, that Mr. Buting didn't show, you see some other officers walking towards that tarped vehicle?
THOMAS FASSBENDER: Along with myself, yes.
MR. KRATZ: Same time, same location, same tarped vehicle; is that right?
MR. KRATZ: Let me ask you, Agent Fassbender, do you believe that at the time that these photos were taken you were in a position to see if anybody either tampered with or entered that vehicle?
THOMAS FASSBENDER: Almost certainly.
MR. KRATZ: Under whose control was that particular vehicle at that particular time?
THOMAS FASSBENDER: The Calumet County deputy.
MR. KRATZ: Agent Fassbender, the defense attorney, Mr. Buting, asked -- and, in fact, I wrote down his question -- whether or not on the 5th of November, the first search by Messrs. Tyson and Remiker, whether or not there was any evidence that was found that was linked to Ms Halbach; do you remember that question?
MR. KRATZ: Do you remember what your answer was?
THOMAS FASSBENDER: I believe it was no.
MR. KRATZ: Okay. Do you remember, on that first search, a note with Ms Halbach's phone number being seized from Mr. Avery's computer table?
THOMAS FASSBENDER: Yes, I do.
MR. KRATZ: And that note, with Ms Halbach's phone number, had the words "back to patio door"; do you see that?
THOMAS FASSBENDER: Yes, I do.
MR. KRATZ: Do you recall, now, that that was seized on November 5th?
MR. KRATZ: Would you say that that is some evidence that was seized on the 5th that is obviously linked to Ms Halbach?
MR. BUTING: Your Honor, I'm sorry. Do you have a copy that we could mark, please.
MR. KRATZ: I do. I can have this marked. What I will do, Judge, is state for the record that it is Item No. 041. That item number corresponds to discovery that defense was sent. Unless there is an objection by counsel, I will replace it with an exhibit number. We can certainly do that, your Honor.
THE COURT: What is the next exhibit number?
COURT CLERK: 148.
(Exhibit No. 148 marked for identification.)
THE COURT: All right. Let's make it 148.
MR. BUTING: That's fine. I just wanted it marked for the record.
MR. KRATZ: I appreciate it. Thank you, counsel.
(Exhibit No. 149 marked for identification.)
MR. KRATZ: What will be Item No. 149, seized from the same computer table, is another sign with Ms Halbach's phone number; is that correct?
THOMAS FASSBENDER: That's correct.
MR. KRATZ: Was that seized on the 5th of November as well?
THOMAS FASSBENDER: Yes, it was, sir.
MR. KRATZ: This address, 3302 Zander Road, we'll get into that with other witnesses, but do you now believe that this is connected to Ms Halbach? It's her phone number, isn't it?
THOMAS FASSBENDER: That's her phone number, yes.
(Exhibit No. 150 marked for identification.)
MR. KRATZ: Now, what will be Item 150, do you recall, now, that an Auto Trader Magazine was seized from Mr. Avery's residence that evening?
THOMAS FASSBENDER: Yes, I do.
MR. KRATZ: This is the identical Auto Trader Magazine that Ms Zipperer received, that she had testified earlier; you were in court when that was testified to, wasn't it?
(Exhibit No. 151 marked for identification.)
MR. KRATZ: Also identically to Ms Zipperer, what will be Exhibit No. 151, was a bill of sale also found on Mr. Avery's computer table, again, identical to that received by Ms Zipperer. Do you recall that now being seized on the 5th of November, don't you?
THOMAS FASSBENDER: Yes, I do.
MR. KRATZ: Let me ask you, Mr. Fassbender, do you know how many items of physical evidence were seized in this case alone, the Avery homicide investigation?
THOMAS FASSBENDER: Upwards of 970.
MR. KRATZ: Can you remember all 970 items of evidence that were seized?
THOMAS FASSBENDER: No, I can't.
MR. KRATZ: Mr. Buting asked you if knowing that Mr. Lenk and Mr. Colborn was involved in a deposition, whether or not you would assign them to search responsibilities; do you remember that question?
THOMAS FASSBENDER: Yes, I do.
MR. KRATZ: Do you remember answering yes to that question?
MR. KRATZ: Do you have an explanation for that answer?
MR. KRATZ: What is that explanation?
THOMAS FASSBENDER: My explanation is, if they told me that, I would have asked them what the circumstances surrounding that were. Upon them telling me, and what I know now of those circumstances to be, I know there was no direct conflict of interest with those two individuals.
They weren't working when he was charged and convicted on the original charge. And when they got deposed, Mr. Colborn was a jailer in that jail and he received a call from another jail that an anonymous person said something about them having the wrong person in jail and they have the right one. Didn't identify who it was, what it was about.
Mr. Colborn did the right thing and forwarded that phone call to the Detective's Bureau. Mr. Colborn was not even a sworn officer. Mr. Lenk wasn't even a detective at the time. He was working the road. That call went up to the Detective Bureau and was handled by whoever was up there at that time. And, then, when Mr. Avery was exonerated, Mr. Colborn made a comment to Mr. Lenk, something to the effect that, boy, I wonder if that call they took way back when was Mr. Avery. They had nothing to do with this.
MR. KRATZ: So that, as far as you know, was Lenk and Colborn's connection, this mysterious connection to this civil lawsuit; is that right?
MR. KRATZ: Knowing that, as you sit here today, as the lead investigator in the case, have any problems at all with Lenk or Colborn's involvement in this case?
THOMAS FASSBENDER: Absolutely not.
MR. KRATZ: Do you know how many law enforcement officers, how many citizens, and how many other witnesses were deposed as part of that lawsuit?
THOMAS FASSBENDER: No, I don't.
MR. KRATZ: Finally, Agent Fassbender, whenever a Manitowoc County Sheriff's deputy was asked to assist in this entire investigation, that is, when any search was done out at the scene, were they accompanied by a Calumet County or State DCI agent?
MR. KRATZ: That's all the redirect I have, Judge.
THE COURT: Any recross, Mr. Buting?
MR. BUTING: Just a bit.
RECROSS-EXAMINATION BY ATTORNEY BUTING:
MR. BUTING: Now, you weren't deposed in this civil lawsuit yourself, right?
THOMAS FASSBENDER: That's correct.
MR. BUTING: You had nothing to do with it, you were a truly independent, objective investigator at that scene?
MR. BUTING: Okay. Lenk and Colborn, though, were deposed about their own conduct, in 1996, regarding a phone call that might have resulted in Mr. Avery's spending eight more years in prison because of the way they handled it, right?
THOMAS FASSBENDER: I believe the way they handled it was correct.
MR. BUTING: Well, what you believe, sir, isn't really the issue. The question is what they believe.
THOMAS FASSBENDER: And I can't speak to what they believed.
MR. BUTING: That's right, you can't. Thank you. The point of the matter is, also, that neither one of them told you about this connection.
MR. BUTING: You can take that -- or leave it on for a minute.
MR. BUTING: Neither one of them told you that they had been witnesses in a civil lawsuit, did they?
THOMAS FASSBENDER: That's correct.
MR. BUTING: And both of them volunteered to go search Mr. Avery's residence, didn't they?
THOMAS FASSBENDER: I don't know if they volunteered or they were asked, but they did it.
MR. BUTING: All right. They did, though?
MR. BUTING: Yeah. And both of them knew, or you could tell us if you thought that they knew, that their boss had already found enough of a conflict, or appearance of conflict, with Mr. Avery's lawsuit, to turn over authority to a neighboring county. They knew that?
THOMAS FASSBENDER: I would assume they knew that.
MR. BUTING: Okay. And with that knowledge, they still didn't say, oh, hey, by the way, we should tell you about this deposition that we both had three weeks earlier, did they?
MR. KRATZ: Objection, asked and answered, three times now, Judge.
THE COURT: I'm going to sustain the objection.
MR. BUTING: All right.
MR. BUTING: (By Attorney Buting)~ You recall my questions to you about whether any items linked to Teresa Halbach, was whether any physical evidence linked her inside his trailer or garage, right?
THOMAS FASSBENDER: Possibly, I don't remember if it was physical evidence or not.
MR. BUTING: All right. This bill of sale has no date, could have been any time, right?
THOMAS FASSBENDER: Correct.
MR. BUTING: The phone number for Teresa Halbach being in his residence is certainly not a surprise, because we know from the records that he had her phone number and had called and arranged a sale just a few weeks earlier, right?
MR. KRATZ: Objection, argumentative, Judge. The question was whether there was anything that linked Teresa Halbach to that trailer.
MR. BUTING: That was your question, that was not my question.
THE COURT: Well, at this time, it was not my understanding that the subject matter was the strength or probative value of the evidence, but rather just whether any evidence had been seized. I'm not sure where we're going.
MR. BUTING: Okay.
MR. BUTING: (By Attorney Buting)~ None of those four prospective exhibits ever show that Teresa was inside the trailer, do they?
MR. BUTING: Thank you. That's all I have.
FURTHER REDIRECT EXAMINATION BY ATTORNEY KRATZ:
MR. KRATZ: That's evidence that Bobby provided; isn't that right?
THOMAS FASSBENDER: That's correct.
MR. KRATZ: That's all I have. Thank you, Judge.
MR. BUTING: I object, move to strike the question and the answer because it's not the testimony. Bobby Dassey never said he saw her in the trailer.
THE COURT: I'm not sure I understood the question, the question that's being objected to.
MR. BUTING: That was a clear inference on counsel's question, if not the direct.
THE COURT: I'm going to sustain the objection. I think it's beyond the scope of redirect. Witness is excused.
Mr. Kratz, we'll let the State get started on the next witness.
MR. KRATZ: If you would like, Judge, we will call Mr. Brandes to the stand.
THE COURT: The jurors may stand up and stretch, if you wish, before the next witness takes the stand.