1.James Lenk — Direct/Cross (Part 2)
281 lines(Reconvened at 9:03 a.m., Jurors present.)
THE COURT: At this time Court calls the case of State of Wisconsin vs. Steven Avery. Case No. 05 CF 381. Will the parties state their appearances for the record?
MR. KRATZ: Once again, Judge, the State appears by Calumet County District Attorney Ken Kratz. Assistant Attorney General Tom Fallon, Assistant District -- Excuse me -- Assistant District Attorney Norm Gahn appearing as special prosecutor.
MR. STRANG: And good morning. Steven Avery's in person. Jerome Buting represents him. Dean Strang as well.
THE COURT: All right. I believe when we left off yesterday the, uh, State was in the process of conducting direct examination of Mr. Lenk. Uh, Mr. Kratz, you may call your witness.
MR. KRATZ: We'll do that. Detective James Lenk.
COURT CLERK: Please raise your right hand.
JAMES LENK, 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.
JAMES LENK: James M. Lenk, L-e-n-k.
DIRECT EXAMINATION BY ATTORNEY KRATZ:
MR. KRATZ: Good morning, Lieutenant, and, uh -- and welcome back. We left off yesterday having completed the search efforts, um, that, uh, you and other law enforcement officers did on the 6th of November, which was Sunday. We're going to move to Monday, now, the 7th of November, ask if you were asked to return to the Avery salvage property?
JAMES LENK: Yes, I was.
MR. KRATZ: Upon your return on the 7th, uh, who were you assigned to work with?
JAMES LENK: On the 7th it was Sergeant Bill Tyson.
MR. KRATZ: And can you describe for the jury, please, your role on the 7th? That is, what, um, responsibilities and duties were you given that day?
JAMES LENK: I believe Sergeant Tyson was given the information to open all the trunks of the cars near the buildings or in the buildings on the property that hadn't already been opened, and to collect firearms from all the buildings.
MR. KRATZ: Did you assist Sergeant Tyson in that effort?
JAMES LENK: Yes.
MR. KRATZ: About how long did that take? At least your part of the trunks of the vehicles that you were searching through?
JAMES LENK: My guess would probably be an hour-and-a-half to two hours.
MR. KRATZ: After that effort, uh, what did you do then?
JAMES LENK: I believe Sergeant Tyson -- or we went back to the command center to get another assignment.
MR. KRATZ: Do you remember what your next assignment was?
JAMES LENK: I think at some point we were told to go back to the Avery trailer and get some, uh, numbers off a computer, I believe.
MR. KRATZ: All right. Did you do that with Sergeant Tyson?
JAMES LENK: Yes.
MR. KRATZ: Thereafter, were you asked to do something else?
JAMES LENK: I'm sure. I don't recall right now.
MR. KRATZ: All right. Nothing that sticks out in your mind? At least nothing of a substantial evidentiary nature; is that right?
JAMES LENK: That's correct.
MR. KRATZ: The next day, then, on Tuesday, the 8th, uh, Lieutenant Lenk, did you once again return to the Avery salvage property?
JAMES LENK: Yes, sir, I did.
MR. KRATZ: And on Tuesday, the 8th of November, who were you assigned to assist?
JAMES LENK: I was assigned to assist, uh, Deputy Kucharski.
MR. KRATZ: And, again, for the jury's benefit, since they haven't met Deputy Kucharski yet, who does he work for?
JAMES LENK: He works for the Calumet County Sheriff's Department.
MR. KRATZ: Were there any other members of your search team that day?
JAMES LENK: Myself, Sergeant Colborn and Deputy Kucharski.
MR. KRATZ: And where did you guys first go?
JAMES LENK: We first went to a yellow vehicle that was parked in front of the office area to retrieve a couple firearms out of the trunk.
MR. KRATZ: Now, once again, uh, Lieutenant, I asked you this, uh, yesterday, but on the 8th of November, and in every other day, did you know what your responsibilities were going to be when you got to the Avery salvage property?
JAMES LENK: No, sir.
MR. KRATZ: Did you know in which buildings you were going to be assigned?
JAMES LENK: No, sir.
MR. KRATZ: Did you even know if you were going into any buildings?
JAMES LENK: No, sir.
MR. KRATZ: What was the next assignment you received on the 8th?
JAMES LENK: After we retrieved the firearms from that vehicle, um, Deputy Kucharski received, uh, information to go back to the Steven Avery trailer.
MR. KRATZ: And what was the nature of this particular assignment?
JAMES LENK: That was to specifically collect, uh, magazines and pictures, um -- Trying to think. The computer, computer-related items. I'm not sure if there was anything else, specifically, that --
MR. KRATZ: Was there a -- a search to be performed of other rooms within that home as well?
JAMES LENK: That's correct.
MR. KRATZ: Can you describe that kind of search and whether or not that was different than one that was performed earlier in the week?
JAMES LENK: This would have been a much more specific search. We were given items to look for. Uh, we were also told to do a thorough search of the dwelling besides the items that were given.
MR. KRATZ: This thorough search, did it include the bedroom of Steven Avery?
JAMES LENK: Yes, sir, it did.
MR. KRATZ: I'm going to show you what's been, um, received as Exhibit No. 103. It's a computer animation. I'm going to zoom into the bedroom area. Ask if that's going to assist you in describing your search of that bedroom that day?
JAMES LENK: Yes, sir, it will.
MR. KRATZ: Okay. Was this bedroom thoroughly searched by yourself, uh, Sergeant Colborn, and Deputy Kucharski from the Calumet County, uh, Sheriff's Department?
JAMES LENK: On 8th?
MR. KRATZ: Yes.
JAMES LENK: Yes, sir.
MR. KRATZ: Sometime towards, uh -- Well, let me back up just -- just a minute. Were you in close enough proximity that you were able to see Sergeant Colborn in that bedroom?
JAMES LENK: Yes, sir.
MR. KRATZ: Uh, referring to Exhibit 103, is this a large bedroom?
JAMES LENK: No, sir, it is not.
MR. KRATZ: Were you able to see Deputy Kucharski?
JAMES LENK: Yes, sir.
MR. KRATZ: Do you recall, Lieutenant Lenk, a pair of bedroom slippers being in this bedroom?
JAMES LENK: Yes, sir, I do.
MR. KRATZ: Could you just, using the laser pointer, and just point to the, um -- for the jurors, about where those were located?
JAMES LENK: Approximately right in there.
MR. KRATZ: Right next to what we now know as a bookcase?
JAMES LENK: Yes, sir.
MR. KRATZ: Did you have occasion to inspect or look at those bedroom slippers?
JAMES LENK: Yes, I did.
MR. KRATZ: Describe that for the jury, please.
JAMES LENK: When we first came into the bedroom, the slippers were sitting there. I just picked them up, looked inside, and put them back down.
MR. KRATZ: Did you look underneath them?
JAMES LENK: Yes, I did.
MR. KRATZ: Did you notice anything underneath the slippers when you looked under them?
JAMES LENK: No, sir. There was nothing there.
MR. KRATZ: Thereafter, or sometime during the search, uh, were you aware of, and did you, uh, see, Sergeant Colborn manipulating or moving a piece of furniture now known as the bookcase?
JAMES LENK: Yes, sir.
MR. KRATZ: After replacing or pushing back the bookcase, what did you do?
JAMES LENK: After the magazines and a binder were pushed back into the bookcase, I advised Deputy Kucharski that I would go out into the living room and retrieve bags or try to get boxes to put the items that we had recovered.
MR. KRATZ: Did you do that?
JAMES LENK: Yes, I did.
MR. KRATZ: On your return to the bedroom, tell the jury what you saw?
JAMES LENK: When I entered the bedroom, I caught my eye, I saw a key laying in front of the slippers by the back corner of that cabinet.
MR. KRATZ: Now, before Sergeant Colborn's manipulation or, um, banging around of that piece of furniture, had that key been there?
JAMES LENK: No, sir, it was not.
MR. KRATZ: If you could use your laser pointer again, tell the jury about where in that bedroom you were standing when you saw the key and where was the key?
JAMES LENK: I was coming in that door, and the key was right at the back corner of that cabinet on the floor.
MR. KRATZ: There's been another exhibit which has been admitted into evidence. It's Exhibit No. 210. Actually a photograph. I'm going to show that to you at this time and ask you to tell the jury what we're looking at.
JAMES LENK: You're looking at the cabinet with the slippers and the key that was laying on the floor.
MR. KRATZ: And that -- that image, that view, uh, is that what you saw on the 8th of November?
JAMES LENK: Yes, sir, it is.
MR. KRATZ: After seeing that key, um, did you direct, um, any activity or was any activity decided between the three of you?
JAMES LENK: I informed the other two officers that there's a key laying on the floor and it was not there before. They all looked at it. At that point Deputy Kucharski photographed it and subsequently collected it.
MR. KRATZ: How did he collect it? Did you witness that?
JAMES LENK: He had, uh, gloves on. He collected it. I believe he put it into a evidence bag.
MR. KRATZ: Now, Lieutenant Lenk, let me just ask you, were you surprised to see that key?
JAMES LENK: Yes, sir, I was.
MR. KRATZ: Why?
JAMES LENK: It wasn't there before.
MR. KRATZ: At that time, and at that early time in observing the key, did you believe that it had obvious evidentiary value?
JAMES LENK: When we looked at the key, it appeared to have a Toyota emblem on the key itself. At that point we thought it may have some significant value.
MR. KRATZ: After Deputy Kucharski photographed and collected the key, do you know what was done with it?
JAMES LENK: Deputy Kucharski contacted the officers in charge of the case, uh, Agent Fassbender and Investigator Wiegert, told them what he had found, and they subsequently came to the trailer.
MR. KRATZ: Was the key provided to them if you know?
JAMES LENK: I believe at that time it was shown to them and they said they would send someone back to collect the key.
MR. KRATZ: All right. Now, Lieutenant Lenk, at -- at that moment, that is, after the collection of the key, did you, Deputy Kucharski, and Sergeant Colborn attempt to ascertain where the key had come from or do some further investigation?
JAMES LENK: Yes, we did.
MR. KRATZ: Tell the jury what kind of investigation you did, please.
JAMES LENK: We looked at the cabinet, um, at the back corner of the cabinet. We saw that there was an opening between the back of the cabinet and the, um, side, approximately a half to an inch, and we believed that that's where the key had fallen from the cabinet.
MR. KRATZ: Can you point on Exhibit No. 210 the back corner where the cabinet had been pulled away?
JAMES LENK: Right back in there.
MR. KRATZ: Let me show you another exhibit. Exhibit 169. It's already been admitted into evidence. Ask if you recognize that exhibit?
JAMES LENK: Yes, sir. That is the cabinet we're talking about.
MR. KRATZ: Could you point to the area of, uh, the back panel being pulled away that you've been describing?
JAMES LENK: Right there.
MR. KRATZ: And, again, recognizing that this photo was taken on a different day, uh, other than the, uh, 8th, uh, does Exhibit No. 169 look the same as it did, uh, that, uh -- that morning on the 8th of November?
JAMES LENK: Yes, sir, it does.
MR. KRATZ: Lieutenant Lenk, after noting the, um -- the defect or the abnor -- abnormality to the camera, did you have any further discussion with your, um, fellow searchers as to finding this key?
JAMES LENK: Yes. We discussed the fact that it had to have come from that cabinet and probably from all the jostling and tipping of the cabinet.
MR. KRATZ: After completing the search, uh, what you now described a thorough search of the interior of the Avery, um, trailer, what was your next responsibility?
JAMES LENK: I'm not exactly sure what we did after that.
MR. KRATZ: Do you remember searching any other buildings that day?
JAMES LENK: Yeah. We had searched other buildings. I'm not exactly sure which ones they were.
MR. KRATZ: Um, let's talk about timing, or at least time frames the, um, rest of your day. Um, do you know what you did, at least generally, the rest of your day. In other words, what general responsibilities were you given?
JAMES LENK: Whatever responsibilities were given to Deputy Kucharski that day, we assisted him. Uh, our primary responsibility were searching buildings.
MR. KRATZ: I see. And just so that jury's not left to wonder, was there anything, at least that you believed, that was of substantial evidentiary value found in the rest of your searches, uh, that day or that afternoon?
JAMES LENK: No, sir.
MR. KRATZ: On the 9th, that is the day -- next day, Wednesday, were you asked to return to the Avery salvage property?
JAMES LENK: Yes, sir, we were.
MR. KRATZ: And what were your responsibilities that day?
JAMES LENK: I was assigned with, also, Sergeant Colborn to Deputy Wendling to assist him in searching.
MR. KRATZ: Who's Deputy Wendling?
JAMES LENK: He's an officer with the Calumet County Sheriff's Department.
MR. KRATZ: As part of Deputy Wendling's team on the 9th of November, were you asked to perform any searches that day?
JAMES LENK: Yes, we were.
MR. KRATZ: Do you remember where you searched that day?
JAMES LENK: We went back to the Steven Avery trailer and we also searched his garage.
MR. KRATZ: Were you looking for something specific in the trailer?
JAMES LENK: We were looking for a garage door remote and a pair of woman's gloves.
MR. KRATZ: Did you find either of those items?
JAMES LENK: There was a pair of woman's gloves found in a paper bag underneath the desk.
MR. KRATZ: The last area of inquiry, um, I have, uh, Lieutenant Lenk, actually relates to other connections or other, um, items that may be located in Manitowoc County. Let me specifically ask you, uh, whether you have ever seen, uh, any vial of Mr. Steven Avery's blood in possession anywhere in, Cal -- in, uh, Manitowoc County?
JAMES LENK: No, sir, I have not.
MR. KRATZ: Did you ever, before the 5th of November, have knowledge of a vial of Mr. Avery's blood in the Manitowoc County Clerk of Court's Office?
JAMES LENK: No, sir, I did not.
MR. KRATZ: Did you ever see a vial of blood in the clerk's office?
JAMES LENK: No, sir.
MR. KRATZ: Between the 3rd and 5th of November, were you ever in the Manitowoc County Clerk of Court's Office?
JAMES LENK: No, sir, I was not.
MR. KRATZ: Lieutenant Lenk, did you ever, um, obtain any blood from the clerk's office or did you obtain any blood from any location and plant it anywhere on the Avery salvage property?
JAMES LENK: No, sir, absolutely not.
MR. KRATZ: Did you ever plant it anywhere in Teresa Halbach's vehicle or anywhere where it could be found as part of this investigation?
JAMES LENK: No, sir, definitely not.
MR. KRATZ: Did you ever assist any other officer so that another officer could either plant evidence, uh, or try to in some way frame Mr. Avery for this homicide?
JAMES LENK: No, sir.
MR. KRATZ: And, lastly, uh, had you ever heard from any member of the, uh, Manitowoc County law enforcement community, uh, that they had participated in some frame-up or planting of evidence?
JAMES LENK: No, sir, there was not.
MR. KRATZ: And just to make sure, since we've gone through the, uh -- the key evidence, um, did you have any occasion to plant the -- Teresa Halbach's key or place her key in Mr. Avery's residence?
JAMES LENK: Absolutely not.
MR. KRATZ: That's all the questions I have of Lieutenant Lenk, Judge. Thank you.
THE COURT: Mr. Strang?
MR. STRANG: Thank you, Your Honor.
CROSS-EXAMINATION BY ATTORNEY STRANG:
MR. STRANG: Next year it will be quarter century that you've been involved in policing in one department or another, Lieutenant Lenk?
JAMES LENK: Close to a quarter, yes.
MR. STRANG: You have, in the Manitowoc County Sheriff's Department, obtained, what, the fourth highest rank in that Department?
JAMES LENK: Yes, sir.
MR. STRANG: Mr. Kratz, just a minute ago, asked you whether you had ever heard from any member of the Manitowoc County Sheriff's Department, any member, that they had participated in a -- in a frame-up or planting evidence, concocting a case against Mr. Avery. Remember that question?
JAMES LENK: Yes, sir.
MR. STRANG: And your answer was, no, you had not heard from any member of the Manitowoc County Sheriff's Department that they had done anything of the sort?
JAMES LENK: That's correct.
MR. STRANG: That includes about the 1985 case against Mr. Avery, doesn't it?
JAMES LENK: I'm not sure.
MR. STRANG: Not one of the officers of that Department has ever told you that they had anything to do with the wrongful conviction in 1985 either, have they?
JAMES LENK: No one's ever told me they had anything to do with the wrongful conviction.
MR. STRANG: You worked with Sheriff Peterson for a number of years?
JAMES LENK: Yes, sir.
MR. STRANG: You knew him to be directly involved in that earlier case?
JAMES LENK: Yes, sir.
MR. STRANG: And no one ever admitted doing anything wrong in connection with that earlier case to you, did they?
JAMES LENK: Not to me. No, sir.
MR. STRANG: Now, do you suppose, Lieutenant Lenk, that if an officer -- let's use you -- do you suppose that if you had taken a vial of blood from the Clerk of Court's Office, planted it, or caused it to be planted in Teresa Halbach's vehicle, and told no one before today, do you suppose that if -- if a defense lawyer stood up and asked you, did you plant blood in Teresa Halbach's car, do you suppose you'd tell me?
JAMES LENK: Yes, sir.
MR. STRANG: You would?
JAMES LENK: I did not.
MR. STRANG: And if you had done it, do you think you'd admit it here under oath?
JAMES LENK: I didn't do that. It's ridiculous.
MR. STRANG: Would you admit it under oath if --
JAMES LENK: Under oath, I would admit it, yes.
MR. STRANG: I'm sorry?
JAMES LENK: If I did it, I would admit it.
MR. STRANG: You would admit. Now, you know that planting that blood would have at least been a crime under Wisconsin law?
JAMES LENK: Yes, sir.
MR. STRANG: It probably would have been a federal crime as well; correct?
JAMES LENK: I'm not positive to that. I don't know.
MR. STRANG: To the extent that you were seeking to deprive someone, Mr. Avery, for example, of his civil rights, it would have been a federal crime as well?
JAMES LENK: I wasn't trying to do anything to deprive him of his civil rights.
MR. STRANG: I understand that's your testimony. If you or someone else had planted evidence, you expect that would have been a federal crime as well?
JAMES LENK: If it had been planted, yes.
MR. STRANG: All right. And your testimony is that you'd come in here, and because some defense lawyer asked you, you'd confess this to 12 jurors had you done it?
JAMES LENK: I probably would if I had done it.
MR. STRANG: All right. Would you expect every member of the Manitowoc County Sheriff's Department to do the same thing?
MR. KRATZ: Objection. Speculation, Judge.
THE COURT: Sustained.
MR. STRANG: (By Attorney Strang) You ran briefly through your history with the Manitowoc County Sheriff's Department. I think you started in the jail?
JAMES LENK: Yes, that's correct.
MR. STRANG: Became a sworn officer?
JAMES LENK: I was sworn when I started in the jail.
MR. STRANG: Oh, I'm sorry. Was that a sworn position, not an unsworn position when you started in the jail?
JAMES LENK: Yes, sir, at that time.
MR. STRANG: Okay. It changed later before Sergeant Colborn started in the jail?
JAMES LENK: Yes.
MR. STRANG: All right. Do you know a woman in the Clerk of Court's Office by the name of Theresa Shebesta?
JAMES LENK: No, I don't know that name.
MR. STRANG: Teresa in the Clerk of Court's Office. I'm talking about the Manitowoc County Clerk of Court's Office?
JAMES LENK: No, sir.
MR. STRANG: All right. Did you at anytime during the course of your, probably, early career, uh, serve, at times, as a bailiff for the Manitowoc County Circuit Court?
JAMES LENK: No, sir, I don't think I've ever served as a bailiff.
MR. STRANG: All right. Uh, if -- if she says that you had, she's simply mistaken?
JAMES LENK: To my knowledge, I don't believe I served as a bailiff.
MR. STRANG: Well, you would know, wouldn't --
JAMES LENK: Right.
MR. STRANG: -- you? Okay. And you don't recall ever serving as a bailiff --
JAMES LENK: No. I don't recall.
MR. STRANG: -- at anytime? All right. Now, um, in 2002, uh, you had moved into the Detective's Bureau about four years before that?
JAMES LENK: Yes, sir.
MR. STRANG: Okay. Uh, in 2002, while serving in the Detective Bureau, you were, uh, something called a designated evidence custodian for the entire Department?
JAMES LENK: I was an evidence custodian, yes.
MR. STRANG: And by evidence custodian, what that means, uh, is that you had overall responsibility for keeping custody or track of all evidence that the Manitowoc County Sheriff's Department may have in its possession?
JAMES LENK: All evidence that was actually in the evidence room, yes, sir.
MR. STRANG: Okay. And -- and we're going to explain that. Your Department maintains an evidence room?
JAMES LENK: Right.
MR. STRANG: Which is a locked area of the Sheriff's Department?
JAMES LENK: Yes, sir.
MR. STRANG: Only the custodian and probably the sheriff, or somebody immediately under the sheriff, has a key to that evidence room?
JAMES LENK: Yes. There's actually, uh, myself, and another officer, and the sheriff.
MR. STRANG: But it's -- it's a separate locked area within the Department?
JAMES LENK: That's correct.
MR. STRANG: You know, while any deputy may have a key to the front door, so to speak, access to the evidence room is closely limited?
JAMES LENK: That's correct.
MR. STRANG: The custodian is one of a small number of people with keys to that room?
JAMES LENK: Correct.
MR. STRANG: There are also things called evidence lockers in the Sheriff's Department?
JAMES LENK: Yes, sir. They're called temporary evidence lockers.
MR. STRANG: And the way those are used is if somebody -- if an evidence technician, or some other officer, is out at a scene, collects one or more pieces of evidence, for temporary safekeeping they will bring those back and lock them in a temporary evidence locker; correct?
JAMES LENK: That's correct.
MR. STRANG: At the first reasonable opportunity to turn them over to the evidence custodian, those items will be turned over to the evidence custodian?
JAMES LENK: Actually, those items are locked into the temporary locker. That key is placed into a lock box which is retrieved by the custodian who's able to do that.
MR. STRANG: And -- and the custodian actually, then, takes the evidence out of the locker?
JAMES LENK: That's correct.
MR. STRANG: All right. There's some paperwork completed to document that chain of who's got their hands on the evidence so to speak?
JAMES LENK: That's correct.
MR. STRANG: Or who's responsible for it?
JAMES LENK: Yes.
MR. STRANG: The evidence custodian prepares that paperwork to document, you know, the evidence away from tinkerers, to reverers, to chance?
JAMES LENK: That's correct.
MR. STRANG: All right. And then the evidence goes into the evidence room?
JAMES LENK: Correct.
MR. STRANG: Where it's cataloged in some fashion, or some record is kept of what shelf it's on, or its location, and the door is locked?
JAMES LENK: Correct.
MR. STRANG: That was your responsibility in 2002?
JAMES LENK: Yes.
MR. STRANG: That's the year that a judge, uh, Judge Hazlewood, of the Manitowoc County Circuit Court, uh, signed an order that some evidence from the 1985 case against Mr. Avery should be transferred to the State Crime Lab in Madison. Do you recall that?
JAMES LENK: Yes.
MR. STRANG: As part of that process, uh, evidence had to be obtained from the 1985 file at the Clerk of Court's Office?
JAMES LENK: Correct.
MR. STRANG: Your best recollection is that you did not do that directly?
JAMES LENK: No, sir, I did not.
MR. STRANG: You think, perhaps, a deputy named Mike Shallue was the person who went over to the Clerk's Office to pick up the evidence?
JAMES LENK: Yes, sir, he was.
MR. STRANG: You were the person who checked the evidence room in the Sheriff's Department for any remaining items from the 1985 case file against Mr. Avery?
JAMES LENK: On that particular date?
MR. STRANG: In 2002.
JAMES LENK: I think on that particular time I was -- just filled out a transmittal form for the evidence that was in the Clerk of Courts.