5.Renewed Gordon-Exclusion Motion, Ruling, and Proposed State Rebuttal Witnesses

MR. KRATZ: I do, Judge. If I could have just a moment to grab my materials. Thank you, Judge. As this Court recalls, a motion was argued in a pretrial manner regarding the admissibility of testimony of a Dr. Robert Gordon. Dr. Gordon provided this Court through, um, videotape testimony, uh, with something called an offer of proof, which is expected trial testimony, and based an opinion on what Dr. Gordon believed evidence at this trial was going to establish.

Dr. Gordon, as this Court knows, uh, has, uh, opined in a, uh, written report, and in his offer of proof, that, uh, Brendan Dassey, uh, was, in fact, an individual who was, uh, using his term now, "vulnerable to suggestibility".

The State had objected in a, uh, oral argument, as well as a, uh, written provisions to the Court, to Dr. Gordon's testimony, noting that this kind of evidence has not been, uh, admitted in the state of Wisconsin, at least to this point. And whatever, uh, marginal relevance there may be, uh, is certainly outweighed by the danger of confusion, uh, of the jury, or unfair prejudice.

Um, nonetheless, uh, the Court, uh, reasoned, in a pretrial decision, that Dr. Gordon would be allowed to testify, uh, as to the area of suggestibility, again, based upon, uh, an offer of proof.

Uh, I recall, and I'm sure, um, the Court, uh, has a recollection as to, um, my argument, both oral and written, uh, cautioning, uh, this Court as to its pretrial ruling prior to even knowing what the trial testimony was going to be, especially as it relates to foundation or to relevance. And what I argued, Judge, was that it's going to depend on who is going to testify in this trial that Brendan Dassey's statements were the product of suggestibility.

In other words, that somebody had to come before this Court and claim that Brendan Dassey's statements to law enforcement officials, uh, were, in fact, the product of law enforcement behavior, law enforcement, uh, suggestibility, or, at the very least, some coercive practices by law enforcement, for Dr. Gordon's testimony to ever be relevant.

Uh, relevance, uh, of course, is, uh -- is well-defined, and this Court included, uh, that in its, uh, pretrial ruling. And I'm not going to, uh, reargue or belabor that. I agree with the Court's, uh, definition and explanation as to relevance.

Uh, now, however, we're at the point in the trial where we don't have to guess as to what the trial testimony is going to be. We don't have to call it an offer of proof anymore, or, uh, expect or, um, uh, presuppose what some trial testimony may be. We've now heard what the defense theory of the case is, what the defense version is, and as, uh, announced by this Court, and as predicted by the State in my written brief, Brendan Dassey, himself, has testified and has provided to the Court, uh, with a version of events or an explanation as to, uh, the admissions, or what we've referred to as the confession, given, uh, in this case.

Uh, importantly, Judge, uh, Mr. Dassey today, uh, when testifying in this trial, said nothing of suggestibility despite Mr. Fremgen's best efforts, uh, in continuing to ask Mr. Dassey about, uh, things like suggestibility. Mr. Dassey's responses, when he didn't say, "I don't know", um, Mr. Dassey's, uh, response was something called confabulation. That is, that he made it up. That he made up the, uh, version of events that he told law enforcement officials.

Confabulation is, of course, um, absolutely a separate, uh, concept than suggestibility. Uh, and when Mr. Dassey and the defense, through Mr. Fremgen and, uh, Mr. Edelstein, who, I assume, knew what Mr. Dassey was going to testify about today, present that theory of defense, and that theory is, uh, devoid of any mention of suggestibility, well, then, Dr. Gordon's testimony just simply no longer becomes relevant.

Uh, this Court's pretrial, uh, uh, order and ruling, which, uh, the State respects, uh, very much, must simply -- uh, is no longer based upon, uh, what the trial evidence is in this case.

When Mr. Dassey explains, uh, that, uh, the version of events given to law enforcement is, uh, the product of -- of fabrication, or even if, uh -- if we believe that it's the product of, uh, some memory several years ago of some book that he may or may not, uh, have read, uh, it is just not suggestibility. Uh, I then, uh, and at this time, renew my motion, ask the Court to reconsider its finding as to Dr. Gordon's testimony. We're asking that Dr. Gordon's testimony be excluded. We don't believe there is any foundation in this record, uh, nor is there any relevance, uh, to, uh, Dr. Gordon's ultimate opinion that, uh, Mr. Dassey is vulnerable to suggestibility.

Now, we understand that this Court has already limited Dr. Gordon's testimony. This Court's already previously indicated that Dr. Gordon can't talk about whether the confession was true or false. That is, uh, whether it was a false confession. Can't talk about a coercion or the circumstances surrounding, uh, the, uh, interrogation. And although there are experts that can talk about that, Dr. Gordon admits that he's not one of those kind of, uh, individuals. But his testing and his opinion, uh, as limited to suggestibility, uh, simply, uh, is not, uh, relevant. Would ask the Court revisit and exclude the testimony.

Alternatively, Judge, uh, we are asking, if the Court continues to allow Dr. Gordon's, uh, testimony, uh, in this case, despite, uh, the lack of foundation for his testimony, uh, we would ask the Court, uh, reassert or restate, uh, just what it is that Dr. Gordon can testify about. Just what is relevant about Dr. Gordon's testimony based upon the record currently, uh, before this Court.

We certainly don't want to be ina position where we're needlessly objecting during, um, uh, direct examination, uh, or that the, uh, State, unnecessarily, uh, has to cross-examining -- cross-examine, uh, Dr. Gordon, uh, on issues that, uh, may, in fact, not be allowed through this Court's, um -- this Court's orders.

Lastly, Judge, at the conclusion of this motion, that is, at the conclusion of my motion to exclude, or the renewal of my motion to exclude, uh, I would ask, also, to place on the record the, uh, State's request to call, if necessary, rebuttal witnesses.

But I have, uh, unfortunately, gotten ahead of myself, and I'm just alerting the Court that we do have that issue to discuss as well. That's all the, uh, comments I have regarding Dr. Gordon's issue. Thank you, Judge.

MR. KRATZ: Thank you, Judge. As to my, uh, second, uh, purpose for, um, alerting the Court as to, uh, the State's, uh, intent, uh, with, uh, this Court, uh, reaffirming its ruling, the State does intend to, uh, and does offer at this time, two, uh, rebuttal, uh, witnesses.

Uh, one is a, um, clinical psychologist, who will directly, uh, rebut Dr. Gordon's testimony as to the testing, IQ, and what, uh, uh, opinions, uh, may be drawn, uh, therefrom. His name is Dr. James Armentrout. Uh, we, previously -- uh, previously, meaning earlier today. I don't mean to indicate, because of the rebuttal nature, that it was, uh, other than today, but, uh, informed defense counsel of our intent to, uh, call Dr. Armentrout as a rebuttal witness.

But, secondly, Judge, and something that we have alerted the Court and, uh, counsel to, uh, earlier, uh, was our intent to call an expert, uh, in the, um, areas as to the interrogative process. This Court may recall, as part of Dr. Gordon's, uh, offer of proof, Dr. Gordon indicated that he was not an expert on issues of interrogation strategy or circumstance, but that such experts do exist. Dr. Gordon, uh, conceded that fact to both -- uh, in court and on his, uh, DVDs.

The, uh, suggestion, and the effect of the matter is, then, uh, as to the area of suggestibility, uh, there is a -- a prong, if you will, as to the testing, and -- and the, uh, um, IQ, and the age, and the, uh, vulnerability to suggestibility that psychologists talk about, but the other part of that that Dr. Gordon talked about was the circumstances surrounding the interrogation, the strategies, and, uh -- and the like, that, uh -- that were employed, and what, um, after reviewing a specific, um, interrogation, uh, what opinions can be drawn therefrom.

State intends, as the defense and the Court knows, uh, to call a, uh, Mr. Joseph Buckley, uh, the president, as I believe, of, uh, Reid and Associates, uh, author, uh, and expert, uh, on issues of the interrogative process.

Uh, with the Court, uh, having, uh, reaffirmed this ruling, uh, we simply offer that. If the Court, uh, needs, uh, or the Court wishes some further, uh, offer of proof or sharpening of, uh, that partic -- uh, uh, Mr. Buckley's, uh, relevance, or his intended testimony, we can certainly do that. A report has been tendered to the Court and to, uh, the defense as to, uh, Mr. Buckley's, uh, intended testimony. If I could have just a moment here, Judge.

And, Judge, uh, you may want to just take judicial notice of the report of Mr. Buckley that has, uh, been provided to the Court, should Mr. Buckley's testimony be allowed. We'll certainly have that marked as a trial exhibit and will be officially offered at that time.

That's all I have as to, uh, again, just by way of, uh, alerting the Court and Counsel, uh, as to the State's intended rebuttal case. Thank you.

MR. KRATZ: Well, Judge, there is no written report. There is no summary. Uh, Dr. Armentrout's, uh, opinions will be based, uh, solely and entirely upon what's been provided, uh, by Dr. Gordon. So, the -- the -- the materials that, uh, uh, Dr. Armentrout will be drawing from, they already have.

The CV, uh, is something that I will ask to be faxed, and we'll try to get that, uh -- we'll try to get that, uh, here, Judge, and -- and, uh, accommodate, out of courtesy, uh, uh, the defense.

Um, did you ask me something else? I've --