2.Hearing on Blood-Vial Questioning of Lenk
40 linesMR. KRATZ: Judge, I am going to request a sidebar if we're going into this issue. Or, perhaps, maybe a hearing outside the presence of the jury might be more appropriate.
THE COURT: All right. Let's, uh, excuse the jury for a few minutes.
(Jury out at 9:31 a.m.)
THE COURT: Mr. Kratz.
MR. KRATZ: Thank you, Judge. I am going to interpose an objection. Uh, based upon pretrial hearings, uh, this particular piece of evidence, or the transmittal of this evidence, did not include the blood vial. Mr. Strang knows that.
I believe that this is an intentional attempt by Mr. Strang to mislead the jury. That is to suggest that the blood vial was part of this transmittal. It's not the blood vial. The blood vial's not involved in this particular transmittal, or if this witness had nothing to do with the blood vial, it is irrelevant.
I'm asking for an offer of proof. I'm asking that this Court make a ruling at this time as to whether or not this is relevant. If it -- uh, if it is, and if Mr., uh, Strang has a good faith belief as an officer of the court that, in fact, the blood vial was part of any transmittal or part of this witness', uh, connection to it, uh, then I will happily withdraw my objection. But --
THE COURT: Just a second.
MR. KRATZ: -- before --
THE COURT: Mr. Lenk, I'm going to ask you to be excused from the courtroom as well.
MR. STRANG: That's fine. But it's probably -- That's fine. It's not worth the candle --
THE COURT: All right. I think the victim/witness coordinator will --
JAMES LENK: Okay.
THE COURT: -- escort you out. Mr. --
MR. KRATZ: And --
THE COURT: -- Strang -- Oop, sorry.
MR. KRATZ: I'm sorry. And just -- just to conclude it, then, Judge, I am just asking for, uh, that, uh -- that pretrial ruling. And, if necessary, and before any, uh, further contamination or infection of this jury, uh, occurs, uh, with, uh, irrelevant evidence, uh, I'm asking for a, uh -- a ruling by the Court. An evidentiary ruling. That's all I have, Judge. Thank you.
THE COURT: Are you -- are you referring to the exhibit that I -- you just received a copy of?
MR. KRATZ: I suspect this is the first of several, uh, exhibits where -- or at least the first of, uh, a line of questioning where Mr. Strang is going to ask, uh, about this particular evidence which Mr. Strang knows, or should know, uh, included some hair and some fingernail clippings, and that was it.
Uh, if he has other information or something that, uh, we haven't, uh, litigated ad nauseum yet to this point, then I'd be, uh, very happy to hear about that.
THE COURT: Mr. Strang?
MR. STRANG: I'm going to specifically establish that the blood did not go to the Crime Lab in 2002. That it's hair and fingernail cuttings that went, and I'm going to explore, uh, Mr. Lenk -- I believe it would be Mr. Lenk's writing, he'll acknowledge, that the items that were sent were exhibits held by the court since the end of the trial.
Not only I'm not going to suggest that that blood went, I'm going to establish that the blood was not sent to the Crime Lab because it wasn't.
THE COURT: Uh, addressing the issue of relevance, what is going to be the relevance of the evidence?
MR. STRANG: In 2002, either Detective Lenk, or someone working under his direction, went to the court file, looked through it, extracted hair and fingernail cuttings which were exhibits held by the court since the end of the trial and were contained in one box. These -- those were to be tested for DNA procedures.
MR. KRATZ: Mr. Strang knows District Attorney FitzGerald went through the file and Mr. Shallue was nowhere there.
I want to know if there's going to be a witness that connects the Manitowoc County Sheriff's Department with that vial of blood. That's my objection, Judge, because I think that our pretrial hearings on this, the pleadings that we have filed, uh, and the responses either by Mr., uh, Strang, uh, admit exactly that chain of events.
MR. STRANG: Well, I -- I don't know at all, uh, that Mr. FitzGerald, to the exclusion of Deputy Shallue, was there, um, in 2002. And, indeed, um, I've got a report of Mr. Fassbender of his interview with Lieutenant Lenk on December 8, 2006, where he tells Mr. Fassbender that from looking at the documents and from his memory, Deputy Shallue obtained the items from the Clerk of Court's Office and brought them over to the Sheriff's Department where Lieutenant Lenk prepared the transmittal of criminal evidence.
So, in terms of a good faith basis, I've got this witness saying the documents and his memory suggest that's exactly what happened and that, indeed, did former District Attorney FitzGerald was not the only person in the clerk's office or in that loop. If that's wrong, I guess the witness can retract it.
THE COURT: Mr. Kratz?
MR. KRATZ: To retract what? A guess as to what happened across the -- the street? This witness can't clear up anything. Mr. Strang knows that. If Mr. Strang interviewed Mr. Shallue, uh, then, perhaps he can make that offer of proof. If he didn't, I guess this Court might want to know why. But not from this witness, Judge.
This witness cannot, by his own -- at least where the state of the record is -- cannot clear that up at all. My point in stopping it at this point is I believe Mr. Strang knows that.
MR. STRANG: I -- I -- I know nothing of the sort. And, indeed, relying on Mr. Fassbender's report of his interview with Mr. Lenk, Mr. Lenk is describing a memory that Detec -- that Deputy Shallue obtained the items from the Clerk of Court's Office.
THE COURT: All right. It's -- it's actually Mr. Shallue, is the way you pronounce his name.
MR. STRANG: Oh, thank you.
THE COURT: Um, all right. So the testimony you're looking to elicit is that, uh, Mr. Lenk was under the impression that Mr. Shallue went to the clerk's office, picked up the items that were transmitted for which Lenk signed, but they didn't include the blood vial.
MR. STRANG: Correct. They included hair and fingernail cuttings.
THE COURT: The question the Court has is, um, the blood vial, I take it, is what's of importance here. How does the -- how does the evidence you're looking to elicit tie in, somehow, to the blood vial?
MR. STRANG: One who goes through that court file looking for boxes of physical evidence should, or well may have seen, the box of physical evidence that was marked Steven Avery's blood. You know, I don't know whether Lieutenant Lenk himself did or didn't go over to the clerk's office in 2002. I expect he'll say he did not. But he's got Deputy Shallue evidently doing that, going over and examining this court file just four years ago, or three years, before the relevant time.
THE COURT: Right. Um, I have some notes of my own the last time this came up back there in my chambers. I'm going to take just a couple of minutes to go get them and then I'll come back.
(Wherein the Court exits the courtroom)
THE COURT: As the Court, uh, understands the line of questioning that the, uh, defense wishes to undertake, uh, the defense is hoping to establish that, uh, Mr. Lenk may have gained knowledge of the existence of the blood vial in the clerk's office through information he may have received from Officer, uh, Shallue.
At this point, it's true, there's a lot of unknowns as to whether the defense, uh, can link that chain, uh, but, uh, the Court believes that on cross-examination it's something that the defense is entitled to attempt, and the, uh, State can address it on, uh, redirect, uh, if it wishes. So I'm going to allow the questioning.
MR. KRATZ: Judge, if -- if I may, is -- is the Court, um -- is the Court allowing this for the purpose of the existence itself of the vial of blood in the clerk's office? In other words, that this witness was aware that there was a vial of blood in the clerk's office?
THE COURT: Well, if he says he was aware of the existence of such vial -- vial, yes. If he does not, then, no.
MR. STRANG: Well, it's a -- it's a -- it's a peculiar question, because Mr. Kratz's entire last series of questions clearly implied the existence of a vial of blood in the clerk's office. Clearly im -- implied that it was available there, and elicited from Mr. Lenk his denial that he ever went to the clerk's office or obtained any blood there. But --
THE COURT: I don't know that I would agree with that characterization. The questions mentioned a vial of blood and whether or not the witness was aware of the existence of it. Uh, but at this point in the trial, I don't think we've received any evidence that there was such a vial.
Um, at any rate, I'm going to, uh, allow the, uh, defense to, uh, pursue its line of questioning. So at this point we can have the witness brought in and the jurors can be brought back in.
MR. KRATZ: Thank you, Judge.