2.Renewed Count 3 Dismissal Motion and Corroboration Ruling
8 linesMR. FREMGEN: Judge, we would renew our motion, uh, now that all the evidence has been presented and both parties have had -- or the State's had an opportunity to do rebuttal, but I would move, again, as previously, uh -- we -- we move this Court, following the close of the State's case in chief, based on -- uh, essentially, moving to dismiss Count 3, whether it be now the amended Count 3.
Uh, again, rather than belabor the argument before, essentially, uh, I would point out to the Court the Supreme Court case of 1978, State v. Verhasselt, which I don't think that law has changed since then. In fact, the Court had mentioned State v. Bannister case, 2006 case, and I was able to review that. It appears to, basically, reflect the same state of the law.
Uh, but, essentially, the state of the law is that one may not be convicted solely upon their uncorroborated confession. In the Verhasselt case, the quote, uh, 1s basically, quoting Holt, which is the more seminal case from 1962, but, essentially, indicates as to the need for corroborating evidence, all the evidence -- all the elements of the crime do not have to be proved independently in a -- of an accused's confession. It's enough that there be some corroboration.
Our position is that there has been no independent corroboration of any element of Count 3, and for that reason, we'd ask the Court to dismiss.
THE COURT: Mr. Kratz?
THE COURT: Mr. Gahn.
MR. GAHN: Um, thank you, Your Honor. Um, I have also read the State v. Bannister at, uh, 294 Wis. 2d 359, a 2006 decision. And upon reading Bannister, it, uh -- is there are so many, uh, significant differences between this case and the Bannister case.
Um, the Bannister case, uh, basically, stated there was absolutely no real trial testimony elaborating on almost any fact of the confession. No details flushing out anything surrounding the confession. Uh, they even noted that there wasn't any testimony about what -- what room a transaction took place in, or how a visit was set up for that drug transaction.
When you look at this case from the very beginning, we have stipulated facts of why Teresa Halbach was at the Avery Salvage Yard, her purpose for being there for Auto Trader Magazine. We have testimony from Bobby Dassey stating that the last time he saw her, she was walking towards the Avery trailer. And in the Avery trailer was the bedroom where this sexual assault took place. So, we -- she is at the scene of, um, where the sexual assault took place.
Um, Mr., uh, Dassey spoke about the hand irons and leg irons. That she was shackled to that bed. Um, hand irons and leg irons have been introduced in this trial as exhibits.
Uh, during his, uh, questioning and his confession, he spoke about, uh, seeing and observing the, um, unclothed body of Teresa Halbach. Uh, there was no -- the -- no mention of a tattoo or scars or birth marks or anything unusual.
Um, this, I think, goes to the surrounding facts and circumstances. I think, also, noteworthy about the location of this assault, the bedroom, was that, uh, Brendan Dassey spoke of the location of the bed, and I note Detective Wiegert, uh, stated how there was -- they were somewhat perplexed when he gave the location of the bed. And, then, they came to find out that that bed had been changed. That the furniture had been rearranged. And that, I think, is a very significant fact about the location of the sexual assault.
Uh, and just the change of furniture, I think, is consistent with all the inferences that one can draw, uh, from this case, uh, something very horrific took place in that room, and, um, I -- I think it goes to the, uh -- the inference that, uh, cleaning was done. Bleach was found, the Bissell, uh, the vacuum cleaner, and, uh, Brendan Dassey spoke of cleaning up that took place. And I think that seeing the furniture moved is a reasonable inference, uh, that supports that.
Also, um, I think that the -- just the lack of physical evidence and forensic evidence is consistent with the facts that have been derived in this case. And from the statements of Brendan Dassey, they burned the body of Teresa Halbach.
We had testimony from Katie Halbach describing the jeans that she believed her sister was wearing, and the rivets were found in this fire, and the zipper, uh, the Daisy Fuentes rivets. And we also have outside testimony from, um, Mr. Tadych, in a stipulation, that he saw a huge fire in the burn pit of, uh, Steven Avery on the night of October 31. Same testimony from Blaine Dassey.
Um, I think, also, the Court to -- could consider, um, that the victim knew her assailant. She knew who was as -- um, assaulting her and sexually assaulting her. And Brendan Dassey spoke about the conversations he had with Steven about then killing her.
And this was not a stranger sexual assault. This is one that, uh, the victim knew her assailants. And, really, the only course, unfortunately, that I think they decided to take was to kill the person. The only person who could identify them.
And probably most noteworthy in this case, is in the Bannister decision, the, um, Court noted that, um, furthermore, they're referring to Bannister's confession, did not yield any unusual information or circumstances that would not be widely known.
And I think that is probably the key sentence in that, uh, decision that applies to this case, especially when, after the confession of Brendan Dassey, he spoke of her being killed and shot in the garage, and in the garage is found the bullet. The bullet which has the DNA of Teresa Halbach on it. And that bullet, which was matched to the very gun, to the exclusion of all other guns, which was found in the bedroom of, uh, where the sexual assault took place.
So, Brendan Dassey was in that bedroom. He knew where the gun was. He told the police where it was. And, sure enough, doesn't that match the, um, bullet that was found in the garage. I think, um, I could go on. There are other, uh, distinguishing features between our situation and the Bannister case, but I certainly believe that we have, uh, given far beyond, uh, sufficient information from a reasonable. inference of all the evidence, the totality of every -- all the testimony, that, uh, their motion -- uh, that we did not provide independent corroboration is without merit. Thank you, Your Honor.
THE COURT: Any response, Mr. Fremgen?
MR. FREMGEN: Uh, briefly, Judge. Uh, much of what Mr. Gahn points out, as far as corroborating detail, certainly corroborates the first degree intentional homicide and mutilating the corpse.
The -- the quotation from Verhasselt, which quotes Holt and Triplett and all the other cases that have come down over the years dealing with this issue, says, the elements of the crime. None of the corroborating details pointed out by the State have anything connected whatsoever to do with Count 3.
Um, even many of the items, or the comments by, uh, the State in regards to corroborating details, are -- are not so corroborating. The bedroom drawing is not entirely accurate. The tattoo comment. Uh, in the video, he actually, when confronted by Agent Fassbender, uh, when he says, do you disagree with me that there was no tattoo, he says, no. Um, uh, or, I'm sorry, disagree with me that there is a tattoo, he says, no, I just don't know where it is.
As to the handcuffs and leg irons, the State brought handcuffs and leg irons from his own house. Um, nothing that points to its use in the -- the crime, or the alleged allegations, but -- but they were addressed as well.
And, once again, the issue of the clean-up, uh, one -- on one hand, the State says there was such a meticulous job done to clean up the bedroom, yet, uh, Steven Avery's sloppy enough to leave his blood all over the Rav 4. It just seems to be somewhat inconsistent.
So, we would, again, stand upon the fact that there is no corroborating detail of the elements of this crime.
THE COURT: All right. I think Wisconsin case law is clear, a confession must be corroborated by -- and this is a quote from Holt, which Counsel has cited -- a significant fact. Uh, Holt is at 17 Wis. 2d. This is at page 480.
Uh, here, in this case, we have three counts charging acts which occurred contemporaneously. The Court believes that the confession given by this defendant is corroborated by a number of significant facts; the bullet fragments, the pieces of bone, the rake and the shovel, to name just a few. This is sufficient corroboration for the confession as a whole, and that whole includes the sexual assault.
The reason underlying the necessity of corroboration is, as was said in State v. Hauk at 257 Wis. 2d 579, uh, specifically, at page 592, is to, quote, produce confidence in the truthfulness of the confession, end quote. This confession is not limited to only the sexual assault. Therefore, significant facts tending to support any part of the confession, support or tend to support all of that con -- confession.
Moreover, even if I were to view the sexual assault count in isolation, I would say, as I already have, that there exists, uh, significant facts which corroborated the handcuffs, the leg irons, uh, as Mr. Gahn pointed out, uh, the location of the bed as shown in the drawing, which was introduced here as an exhibit, a drawing of Brendan Dassey. Uh, therefore, I'm going to do as I did before. I'm going to deny -- respectfully deny your motion.
Now, uh, we have had a chambers jury conference. Uh, you gentlemen have had an opportunity to review the proposed jury instructions. Uh, first, to the, uh, prosecution, any -- any changes? Any motions?