3.Out-of-Jury Issue After Colborn Cross-Examination
26 linesMR. STRANG: That's all I have.
THE COURT: Mr. Kratz.
MR. KRATZ: I do have a issue outside the presence of the jury, Judge. I ask that I be able to be heard.
THE COURT: All right. At this time we'll excuse the jurors for a few minutes.
(Jury not present.)
MR. KRATZ: I think the witness should be excused as well.
THE COURT: All right. Mr. Colborn, you may step outside. Mr. Kratz.
(Witness not present.)
MR. KRATZ: Thank you, Judge. As this Court may know, this was a cross-examination which was much anticipated. It was the subject of a great deal of pre-trial litigation. It was the point in the trial where the defense had represented to this Court, in something that's called an offer of proof, which is a lawyer's obligation, at least as this Court presented it to the defense, to tell the Court what the defense intended to show at trial.
When submitting the defense theory of the case, in response to the State's motion to exclude evidence of blood vial, of planting evidence, the defense, in their offer of proof, told this Court, promised this Court, that the defense would -- with evidence, would show that this witness, Mr. Colborn, or the next witness, Mr. Lenk, somehow obtained a vial of blood from the Clerk of Court's Office in Manitowoc County and planted that evidence, or planted that blood in Teresa Halbach's SUV.
Now, we have had heard Mr. Strang's opening statement where planted evidence has been eluded to. We have heard cross-examination of other law enforcement witnesses, by Mr. Buting, specifically, where he asked whether those officers expected that their superiors would be planting evidence in this case.
But now, when it would logically come up in trial, now when evidence would logically be presented, or when the very witness in the defense offer of proof comes before this Court and is able to be asked regarding sneaking into the Clerk's Office, or stealing a vial of blood, or planting evidence, we hear nothing.
And despite the contamination by the defense throughout the entire jury selection process, which this Court I think can take judicial notice of, you heard all the questioning about the vial of blood in the Clerk's Office in jury selection, you heard the contamination in press releases, you heard the contamination in opening statements.
Now, for the first time, when evidence should be placed into -- into the record, or at least placed into this particular case, we hear nothing. And so, Judge, I'm asking for alternative direction, or rulings from the Court, first, if the defense is abandoning their planting evidence theory. The State needs to know that and we need to know that now.
Because there shouldn't be any more -- any more questions of, are you friends with Mr. Lenk, or any questions of any other witnesses about a planting or about blood vials, if they intend not to honor their offer of proof, if the defense now intends not to, as they told this Court in response to the State's motion to exclude this very evidence, that they would prove that evidence from the Clerk's Office, by way of vial of blood would be brought into this case.
If they do, in fact, that is, if the defense does in fact intend to abandon that defense, then I will be asking for curative instructions of this jury, at this time, that up to this point in the trial they should disregard Mr. Strang's opening statement, when he talked about further evidence of planting evidence, of any other witnesses that have been asked about planting evidence, or any reference at all to blood vial type evidence.
If, in fact, I'm mistaken, if I am jumping the gun, if you will, if this is all going to be Lieutenant Lenk now, rather than Sergeant Colborn, then I am happy to be the first one to stand corrected. But, if this defense is going to be abandoned, before I redirect this particular witness, the State is entitled to that ruling and we're entitled to that information.
THE COURT: Mr. Strang.
MR. STRANG: I will stand on the written materials we made, we tendered to the Court and filed, with respect to a proffer of evidence and reasonable inferences from evidence as to the blood vial. I will stand on the transcript that our capable court reporter has made of my opening statement and simply note that, while he means no inaccuracy and he is simply trying to give the Court a summary, Mr. Kratz's description of our written materials and my opening statement are not exactly correct, and I will simply stand on them rather than characterize them.
Second, just by the by, we haven't gotten to the defense case-in-chief yet at all. We're in the prosecution case-in-chief. So all of this, at some level, would be wildly premature. But, beyond that, to confront it most directly, I'm idealistic. I'm certainly naive at times. I am not so naive to think that someone who may have planted blood evidence, who may have been involved in planting a key, would come into this courtroom, and simply, because asked under oath, did you do it, say, oh, yes, I did it. We are not going to have a Perry Mason moment here.
We will at some point have to establish the existence of the blood vial in the Clerk's Office and its state of being there so to speak. And that could be done in the defense case-in-chief; it could be done on cross-examination in the State's case-in-chief, if the opportunity should present itself with an appropriate witness.
But I do not expect anyone, Lieutenant Lenk, Sergeant Colborn, anyone else, to make an admission, that you would see in the Perry Mason show, on the witness stand. And the suggestion that we should be held to getting one from such a witness is preposterous. This jury will be asked, in the end, by both sides, to rely on reasonable inferences and common sense and on all of the evidence.
So I don't think there's any relief to be granted at the moment and there's no point in discussing now what reasonable inferences may be available at this point, since neither the jury nor the parties know what the whole of the evidence will be when the evidence is closed.
THE COURT: Mr. Kratz, anything else?
MR. KRATZ: Just -- I'm sure, Judge, just one moment, if I could. I appreciate Mr. Strang's response, Judge. And when Mr. Strang, and I believe I wrote these words down correctly, we will establish the blood vial in the Clerk's Office, perhaps not through these witnesses; but it is, what I have heard, that they are not abandoning that defense.
That was my concern, because there's nothing that requires Mr. Strang or Mr. Buting to keep planting these little nuggets, if you will, and then when the defense part comes, from them saying, defense rests, or saying, now we have abandoned it, when there is further contamination of the jury.
That's our concern, Judge. We're able to meet this defense and we intend to meet this defense. But we have to do that in good faith reliance, upon pre-trial rulings of this Court, by pre-trial representations by the defense as to where this trial is going, so that we don't interrupt the flow of this case.
I don't want to object every time I hear the word planting. I don't want to object every time I hear the word, are you friends with Lieutenant Lenk, or anything that might go down that road. In fact, the defense intends to, as their offer of proof, indicates to prove that up at some point, or to embrace that as one of their defenses.
And I know that's a clumsy term, and with my apology to Mr. Strang, but I still believe that we're entitled to know that. We're entitled at some point, before there is further contamination, if in fact this defense is going to be abandoned at some point, the State is entitled to know that. That was my point in putting it on the record at this very moment, before I proceed with my redirect examination.
THE COURT: I don't know that the defense disagrees that if they should abandon that defense that you would be entitled to some notice, but I don't understand the defense to be saying that they are abandoning that defense.
MR. STRANG: The Court is right on both counts. And this is, you know, I would like to know too whether the State is abandoning the false imprisonment charge, but until we at least get to the point where the State rests its case-in-chief, that's all premature.
And I understand Mr. Kratz's concerns. I don't know that if we were abandoning any defense that I would have done the same cross-examination, or for that matter, that Mr. Colborn would have been called on direct at all.
MR. KRATZ: What I would, just as a final point, Judge, I would ask then, that before the State rests, before the State concludes its part of the case, that we be allowed a hearing, that we be allowed an opportunity on an admissibility hearing, or to meet what at least has been presented to this point.
We have heard about vials of blood. We have heard -- the jury has at least heard, substantially during the voir dire process, about a vial of blood in the Clerk's Office. We don't have, obviously, any results from the FBI at this particular point yet. But if and when we do get those, I know that there is some disagreement as to what's rebuttal evidence and can rebuttal, or reply evidence, be put in even in the State's case-in-chief.
Because if the defense, technically, wouldn't call one single witness and the State relied upon the defense representation that they intended to put this in and the defense changed their mind, we would be precluded from meeting the challenges, or at least meeting the assertions that have been made up to this point.
So, perhaps more by way of prediction between now and the close of the State's case, we will be asking for a hearing on this very issue. I don't intend to have this conversation again. Mr. Strang is right, we'll wait to see how the case plays out.
But prior to the State being precluded from meeting this defense, or at least from presenting evidence relevant to this particular topic, and before the State rests, we will be asking for a more extensive opportunity to be heard, even if it's just in writing, Judge. We will submit something, but we will need some kind of a ruling before the State does rest its case.
THE COURT: All right. If I'm reading your comments correctly, you are not asking the Court to do anything at this point in time, but you are indicating that you may be asking for relief of some kind at the close of the -- or before the close of the State's case, pending whatever action the defense takes between now and then.
MR. KRATZ: This was the earliest opportunity and, in fact, the first obvious opportunity to have heard that kind of evidence. Since I didn't hear it, I'm putting the Court and defense on notice of our position.
THE COURT: Mr. Strang.
MR. STRANG: Fair enough. And I -- I think I should, you know, in the spirit of the disclosure that Mr. Kratz has struck, add joining part of what -- part of what he said. I mean, clearly, because about half, I think, of the blood vial sample has been sent off to the FBI for testing, and we expect testing is ongoing, clearly there will have to be a hearing. Mr. Kratz may have one type of hearing in mind; we have another. Certainly a Walstad hearing and there are a variety of other issues that may arise with the FBI testing.
We are no closer to being able to conduct any independent testing or to have an expert to meet and assess the FBI's testing, than we were when we first addressed this issue. We have received a protocol from the FBI, thanks to Mr. Gahn for that; we got that, I don't know, at the end of last week, I think.
And we'll be filing a motion addressing, in writing, the issues that this testing and the denial of defense opportunity for independent testing or even for a reasonable chance to find an expert to meet and help us assess, possibly contradict the FBI test results. It raises a whole field of fair trial and due process issues here. I will address those in writing.
I hope to file that before the end of this week. I expect the State would want a chance to respond in writing and, you know, whatever I see as heading, is the Court needing to schedule, conceivably. I mean, on Wednesday, gets FBI results and what they are, the Court needing to set a fair amount of time aside to address the whole cluster of issues surrounding that FBI testing.
THE COURT: All right. Anything else before we bring the jury back in and allow the State to redirect?
MR. KRATZ: No. And Mr. Strang's comments are certainly well stated and we actually join that, Judge; we will need a day and whether it's going to be on a weekend or whether the Court is going to allow a day or the better part of a day, that the jury gets a probably much needed day off, we'll need to schedule that within the trial. But I am prepared with my redirect at this time, Judge.
THE COURT: Very well. We can bring the witness back in and the jurors.
(Jury present.)
THE COURT: You may be seated. Mr. Kratz, at this time you may begin your redirect.
MR. KRATZ: Thank you, Judge.