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STATE OF WISCONSIN MANITOWOC COUNTYCIRCUIT COURT
STATE OF WISCONSIN,
Plaintiff,
Case No. 2005 CF 381v.
STEVEN AVERY,
Defendant.
AFFIDAVIT OF MICHEAL VELIE
I, Michael Velie, having been first duly sworn, provide this Affidavit in my
official capacity as a Police Captain with the Grand Chute Police Department.
1. In April and May of 2006, I was a Detective with the Grand Chute Police
Department. One of my assigned duties as a criminal investigator was to
conduct forensic examinations of computers. I was specialized in computer
forensic analysis and conducted forensic examinations for numerous law
enforcement agencies. I served in this capacity from 2002 to 2009. During
this time frame, I conducted in excess of 100 computer forensic examinations
and testified as an expert in court in excess of 5 times. I was promoted to the
rank of Captain in 2011.
2. On April 22, 2006, Special Agent Thomas Fassbender of the Wisconsin
Department of Justice presented me with a personal computer that was seized
EXHIBIT 1
FILED
07-27-2018
Clerk of Circuit Court
Manitowoc County, WI
2005CF000381
as evidence from the residence of Barbra Janda, the mother of Brendan Dassey,
and asked me to conduct a forensic analysis of the computer.
3. On April 24, 2006, I started a forensic analysis of the hard drive on this
computer. During the course of my analysis, I transferred a forensic image of
the contents of the hard drive to 7 DVDs and issued a final report in the form
of a CD which I titled “Dassey computer, Final Report, Investigative Copy.”
Included on that CD was a Supplemental Report that set forth the analytical
framework for the analyses of the Avery, Halbach and Dassey computers. I did
not write any additional reports pertaining to my forensic examination of the
Dassey computer.
4. On May 11, 2006, I returned the computer to Agent Fassbender. I also
provided him with a copy of the CD entitled “Dassey computer, Final Report,
Investigative Copy” and the 7 DVDs which contained a forensic image of the
contents of the hard drive from the computer.
5. All the images on the CD titled “Dassey computer, Final Report, investigative
Copy,” came from and can be found in the 7 DVDs which were copied from
the computer hard drive.
6. The same images found on the CD titled “Dassey computer, Final Report,
Investigative Copy” are reproduceable when the same or similar forensic tools
and techniques are used to examine the 7 DVDs, which represent a complete
copy of the forensic image from the computer hard drive. I used Encase
version 5 to complete my forensic analysis of this computer.
2
7. The only information on the CD titled “Dassey computer, Final Report,
Investigative Copy” that is not contained in the 7 DVDs would be the typical
administrative and procedural files, folders, and techniques routinely used by a
digital forensic examiner during a forensic examination of digital evidence.
The folder titled “Recovered Pornography” on the CD contains images I
obtained from the 7 DVDs and in this context “Recovered” simply means
obtained from the DVDs.
Further your affiant sayeth not.
Michael Velie, Captain Grand Chute PD
State of Wisconsin County of Calumet
^ i ’ .Subscribed and sworn to before me ’ this M y day of July, 2018
\ V, ' 1 ^Notary Public/} M}| ^commission is permanent
3
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Wisconsin Case ManagementACISS Investigative Report
12/07/2006Report Dale:05-1776/304Report Number
I05-1776/30412/07/2006InvestigativeTERESA MARIE HALBACH: Examination of Brendan Dassey Computer 04/21/2006 00:00 12/30/1899 00:00 AgencyFassbondor, Thomas J (Apploton Special Assignments / Wisconsin Department of Justice 0CI)Approved12/12/2006Kelly, Carolyn S (Madison Arson / Wisconsin Department of Justice PCI)
Report Number: Report Dale:Type Of Report: Description: Occurence From: Occurence To: Dissemination Coda: Reporting LEO: Approval Status: Approved Date: Approved By:
Related [yVRelationshipMentioned Monlloned
11/7/1964 Mentioned 6/2/19CT Mentioned 7/9/1962 Person of Interest 10/19/1989 Porson of Interest
DOB6/14/1987
Nomo Sox, Baca Female White Male Female White Female While Male White Male White
lyoePersonPorsonPorsonPersonPersonPerson
Avery, Mario F Fabian, Danny Janda, Barbara Ellen Walker, Emily A.Avery, Stevon Allen Sr Dassey, Brendan R
Unknown
( ) TT1/Prlco, Denlso (Criminal Investigation / Wisconsin Department of Justice DCI)Record Origination Operator
Record Origination Date:Last Update Operator:Last Update Date:
12/07/2006 08:24Kelly, Carolyn S (Madison Arson / Wisconsin Department of Justice DCI) 12/12/200G 14:20
I b?
■
Kelly, Carolyn S (Madison Arson/ Wisconsin Department of Justice DCI)Assignments/Wisconsin Department of
Justice DCI)12/t2/2006
This report Is preyeny o! Wisconsin Casa Management. Neither i: ct ili cements may he disseminated la unnuthortrrd personnel.
(assbondertj 12/12/2006 14..1B Pegs 1 of 3
r EXHIBIT 2
1II STATE 1 9915
'I:.-:--
636-24
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Wisconsin Division of Criminal Investigation Case Report Caso/Repoit Number: 05-1776/304
On Friday, April 21,2006, pursuant to search warrant, S/A Thomas J. Fassbender and Investigator Mark Wiegert, of the Cahanet Count Sheriffs Department seized a personal computer CPU and 12 CD-R’s from the residence of Barbara Janda.
On Saturday, April 22, 2006, S/A Fassbender transferred said items to Detective Mike Velie, of the Grand Chute Police Department for forensics examination
On Thursday, May 11,2006, Detective Velie returned said items to S/A Fassbender for subsequent return to Barbara Janda. S/A Fassbender subsequently received from Detective VeEe materials pertaining to his computer analysis of the hard drive and CD-R’s. This included numerous hard copy pages of instant message conversations from the Hard drive; and a CD titled 'Dassey/s Computer, Final Report, Investigative Copy." The CD contained information on web skes and images from the harddrive. Also provided by Det Velie were 6 DVD+R's containing a copy of the harddrive. S/A Fassbender examined'the items received and made foe following observations:
t, -I
Gn February 28, 2006, there was an instant message conversation between an individual, using foe screen name 'TiigerforGfe,” believed to be Brendan Dassey, and an individual using the screen name “pickup my hand break my fingers and when they feel numb i’ll fet you know i will scream until f m out of breath,”(Dnnny_febian6495269747, believed to be Danny Fabian). During said conversation, Fabian asked Dassey why detectives wanted to speak with Fabian's brother and Dassey stated they just wanted to ask him why Dassey was losing weight.(
On February 28,2006, there was an instant message conversation between Dassey and an individual using the screen name “i gottta make it to 1 leaven fo goin through heff’ (sfowmotian4yal091495196), believed to be Entity, a recent girlfriend of Dassey* s. During said conversation, Entity asked “Do you tliink he is guilty?” Dassey responded, “Ya Yea,” Entity tlien asked, “Why do you,” and Dassey responded, ‘T don’t know enough to say.”
On March 4,2006, there was an instant message conversation between an individual using Dassey*s screen name of “nigerforlife,” who identified themselves as “Brendan’s mom,” and the person utilizing the screen name, “EMILY,” believed to be Entity. During said conversation. Entity advised that her mother doesn’t want her to be involved with this and she apologizes for that Barbara Janda responded, ‘He’s not a bad person, his uncle is."
On February 28, 2006, there was an instant message conversation between Dassey and an individual using the screen name, “~jr mofia-nicesllMbkches, bitches everywhere ifook there is bitches! lljulie i love u to dcthl!” (siper_hotty_6924I54349921), believed to be Travis Fabian. During said conversation, Dassey asked Fabian if he thought Steven was guilty and Fabian responded, “idk,” (for
Narrative Page 1
This document contains neither recommendations nor conclusions of the Division of Criminal Investigation. It is tlw property of this Division, end is loaned to your agency. Its contents are not to be distributed outside your agency.
(
STATE 1 9916
636-25
(
\•»Wisconsin Division of Criminal Investigation Case Report Case/Roport Number; 05-1776/304
I don't know), “y.” Fabian then asked Dassey if he felt Avery was guilty. Dassey responded, lcVa Emily asked that to me”. Fabian asked what Dassey sail and Dassey wrote, “Ya,” and “Yea”. Fabian then repeated, “You saed Ya he’s guilty”.
On February 28,2006, there was an instant message conversation between Dassey and an individual using the screen name, “Friendship is long fost bve, that you wish you’D be able to overcome,” (wingless-angel-2006173960984), believed to be Marie Avery. During said conversation, Dassey asked Marie Avery if she thought Steven was guilty and Marie Avery responded, “Yes yes yes y cs yes yes yes fhaty”. Dassey then wrote, “So do I now of the evidence they got”.
In reviewing the images contained on the disc marked final report, S/A Fassbender made the foibWHig observations;
Photographs of both Teresa Ha bach and Steven Avery with an apparent date of April 18, 2006.
There were numerous images of nudity, both male and female, to include pornography. The pornography included both heterosexual, homosexual and bestiality. There were images depicting bondage, as well as possible torture and pain There were also text images with the name, “Emily”. There were fcnages depicting potential young females, to include an mfent defecatbg. Tliere were knages of injuries to humans, to include a decapitated head, a badly injured and bloodied body, a bbody head injury, and a rrartilated body.(
The disc received from Detective Vefie, as well as the hardcopy pages of instant message conversations were maintained in S/A Fass bender’s possession.
Narrative Page 2
This document contains noithor recommendations nor conclusions of the Division of Criminal Investigation. It Is the property of this Division, and is loaned to your agency. Its contents era not to be distributed outside your agency.
(
STATE_1 9917
636-26
71( -Jrjvoh- ■D
6CALUMET COUNTY DISTRICT ATTORNEY'S OFFICE
ltcnnccli ~R. Kratz, District Attorney
206 Court Street Chilton., \V1 53014 (920) 849 - i 4 38 FAX: 8 '9:1464
•Jeffrey S. FraeliHc.lt,Assistant District Attorney
Juiie L. Leverenz/hloncin K. ThomasVictim/Witness A.ssisiance Cr.niviinatOJ'S
December 14, 2006
Attorney Dean Strang 10 E. Doty Street “320 P.O. Box 152S Madison, Wl 53701-152K
State of'Wisconsin vs. Steven A. Avery Manitowoc County Case No. 05-CF-38I.
Re:
Dear Attorney Strang:
Recognizing this office’s continuing duty of providing discovery, enclosed please find additional information regarding the above-captioned case:
( CD - Toyota Rav 4 Original Laser Scans 1 1/13/06CD - Avery Calls: I l/:Vf)6 ~ 1 1/13/06CD - Avery Calls: 11/14/06 - 11/27/06CD - Avery Calls: 11/28/06 - 2/4/06CD - Avery Calls: 12,5/06 - 12/12/06CD- Jodi Phone Calls: 12/15/05- l/S-WCD - Jodi Siachmvski: 2,15/06Photos: S3 11-102)Photos: E2 (1-133)Photos: A1S (1-23)Photos: A19 (1-68)Photos: A20 (1-17)Search Warrant & Return for Dassey Residence - 4/21/06 (12 pgs)Search Warrant & Return for Avery’s Kodak liasyshare camera 10/6/06 (9 pgs) MCSD Narrative Report - Officer Shallue - 1100/06 (2 pgs)Supplemental Repurt - Ofiicer Jo.Ann Nfignon (BPD) 11/7/U5 (2 pgs)MCI Voice Sen-ices - Toll Free Call Detail of Auto Trader - i 0/1 5/05 - 11,14/05 (30 pgs)FBI Lu'nor.Uoiy Report dated l/l 7/06 iv: charred remains & buccal .v-vabs of Karen Halbach (3 jigs)FBI Report dated 1,4/06 by Gerald Mullen re: examination of Canon Sure Shot digital camera and cellular telephone received l/o/UO (4 pgs)
l23-!567S910.11.12.13.14.15.16.17.
IS.
19.
EXHIBIT 3
I!STATE 1 9970
636-21
(
20. FBI Report from Gerald Mullen re: examination of digital camera and cellular telephone - received 4/19/06 (3 pgs)
21. Written statement of Bobby Dassey - 11/5/05 (1 pg)22. Written statement of Josh Radandt - 11/5/05 (1 pg)23. Written statement of Jodi Stachowski - 11/6/05 (l pg)24. Written statement of George Zipperer - 11/6/05 (1 pg)25. Written statement of Paul Metz - 11/20/05 (1 pg)26. Written statement of William Elroy Brandes, Jr. - 12/7/05 (1 pg)27. Written statement of Nikole Sturm — 11/5/05 (1 pg)28. Written statement of JoEllen Zipperer - 11/6/05 (1 pg)29. Diagram drawn by Bobbie Dassey on 2/27/06 (l pg)30. Signed Miranda Warnings: Earl Avery (11/9/05); Bobby Dassey (11/9/05); Jodi
Stachowski (11/8/05); Jodi Stachowski (11/11/05); Brendan Dassey (5/13/06) (5 pgs)31. Leads Information: 11/8/05 - 11/12/05 (6 pgs)32. Info provided from Kohl’s regarding Teresa Halbach’s credit card account (25 pgs)33. Photo Log & Photos - Wisconsin Slate Patrol (30 pgs)34. CCSD Evidence/Property Custody Document Re: Fiber, Vacuum Roller & Carpet
Cleaner (1 pg)35. Receipt of Physical Evidence received from State Crime Lab (57 pgs)36. Crime Lab Report - Sherry Culhane - 11/14/05 (4 pgs)37. Crime Lab Report - Sherry Culhane - 12/5/05 (3 pgs)38. Crime Lab Report - Sherry Culhane - 3/31/06 (7 pgs)39. Crime Lab Report - Sherry Culhane - 5/8/06 (5 pgs)40. Crime Lab Report - Sherry Culhane - 12/4/06 (6 pgs)41. Crime Lab Report - John Ertl - 11/23/05 (5 pgs)42. Crime Lab Report - Michael Haas - 11/9/05 (1 pg)43. Crime Lab Report - William Newhouse- 2/21/06 (1 pg)44. Crime Lab Report - William Newhouse - 5/10/06 (l pg)45. Crime Lab Report - Kenneth Olson - 12/13/05 (1 pg)46. Crime Lab Report - Kenneth Olson - 2/27/06 (1 pg)47. Crime Lab Report - Kenneth Olson - 5/26/06 (1 pg)48. Crime Lab Report - Kenneth Olson - 12/4/06 (1 pg)49. Crime Lab Report - Michael Riddle - 3/8/06 (1 pg)50. Crime Lab Report - Michael Riddle — 3/17/06 (1 pg)51. Crime Lab Report - Michael Riddle - 4/26/06 (1 pg)52. Crime Lab Report - Michael Riddle - 12/5/06 (1 pg)53. Crime Lab Report - Michael Riddle - 4/26/06 (l pg)54. Crime Lab Report - R. Nick Slahlke - 1/31/06 (2 pgs)55. Crime Lab Report-Joseph Wermerling- 12/6/05 (1 pg)56. CCSD Supplemental Contact Reports - (19 pgs)57. CCSD Narrative Reports pgs. 967-969 w/ attached attached letter written by Tiffany
to Sandra Barth (4 pgs)58. CCSD Narrative Reports pgs. 970-100659. CCSD Narrative Report pg. 1007 w/ attached letters from Andres Martinez (6 pgs)60. CCSD Narrative Report pgs. 1008-1009 w/ attached letter from Terry Vollbrecht
(4 pgs)
( ,
(
STATE 1 9971
636-22
(
CCSD Narrative Report pgs. 1010 w/ attached Crime Lab Report of Sherry Culhane dated 12/4/06 (6 pgs) & Crime Lab Report of Michael Riddle dated 12/5/06 CCSD Narrative Report pgs 1011-1017CCSD Narrative Report pg. 1018 w/ attached Crime Lab Report of Kenneth Olson dated 12/4/06CCSD Narrative Reports pgs. 1019-1021 w/ attached Crime Lab Receipt of Physical Evidence dated 9/19/02 & Order signed by Judge Hazelwood on 5/2/02 (6 pgs) CCSD Narrative Reports pgs. 1022-1023Responses to Subpoenas For Records - Misc Telephone Numbers (134 pgs)DCI Narrative Reports: 05-1776/303; 05-1776/304; 05-1776/305; 05-1776/306; 05- 1776/307; 05-1776/308; 05-1776/309; 05-1776/310; 05-1776/311; 05-1785/4; 05- 1785/5 (115 pgs)Report of Dr. Kenneth Bennett dated 11/10/05 (2 pgs)
61.
62.63.
64.
65.66.67.
68.
Kenneth R. KxatzManitowoc County Special Prosecutor
KRKrmlmEnclosurescc: Attorney Jerome Buting
Attorney Norman Gahn Attorney Thomas Fallon
(
(
STATE 1 9972
636-23
/r •
CALUMET COUNTY
DISTRICT ATTORNEY S OFFICE•■a.
Kenneth R. Kratz, District Attorney
Jeffrey S. Froehlich,Assistant District Attorney
Julie L. Leverenz/Llonda K. ThomasVictim/Witness Assistance Coordinators.
206 Court Street Chilton, WI 53014 (920) 849-1438 FAX: 849-1464
December 15, 2006
Attorney Dean Strang 10 E. Doty Street #320 P.O. Box 1528 Madison, WI 53701-1528
Re: State of Wisconsin vs. Steven A. AveryManitowoc County Case No. 05-CF-381
Dear Attorney Strang:
Enclosed please find an itemized inventory of our Steven Avery file. All of these items were sent to you as discovery. Although some of these items were actually forwarded to Attorney Loy, it was our understanding that he forwarded it to you. Separate itemized lists of the Calumet County Sheriff s Department and DCI narrative reports were included with the discovery materials given to you on December 14, 2006.
Please review this list carefully. If you are unable to locate any of the items and want us to make another copy, please contact my office.
Sincerely,
Kenneth R. Kratz District Attorney
KRKimlmcc: Attorney Jerome Buting v
Attorney Thomas Fallon Attorney Norm Gahn
EXHIBIT 4
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!HURLEY, BURISH & STANTON, S.C. ATTORNEYS AT LAW
TEN EAST DOTY STREET, SUITE 320 Mailing Address:
POST OFFICE BOX 1528 MADISON, V/I 53701-1528
Virginia M. Bartclt Marcus J. Berghalm Mark D. Burish Ralph Cagle Clifford “Joe" Cavin Andrew Erlandson *Also Licensed In (llinois
Erik R. Guenther Stephen P. Hurley*' John D. Hyland Daniel J. Schlichting Marie A. Stanton Dean A. Strang Howard A. Sweet
Tel. (60S) 257-0945 Fax. (608) 257-5764
www.hbslawfinn.com Author’s c-mail:
December 19, 2006
Mr. Jerome F. Buting Buting & Williams, S.C.400 Executive Drive, Suite 205
■ Brookfield, Wisconsin 53005
Re: State of Wisconsin v. Steven AveryCase No. 05-CF-381
Dear Jerry:
( I enclose seven DVDs containing copies of Brendan Dassey’s hard drive. These DVDs are an archieve copy of the hard drive and can only be viewed with Encase V4 or V5. Any questions please contact me.
Sincerely,
I-IURLEY, BURISH & STANTON, S.C.
Shavon M. Ryan Paralegal
0607600F:Vd«ftU\mty\B\»lin50M2.l9.v»pd
Enc.
900Z 0 £ 03G
EXHIBIT 5(
**> Page 1 of 3*
Kratz, Keni
To: Dean StrangSubject: stipulation project EXHIBIT 36
05 CF 381
Ofciwn JfLTnitifllfl
;
1/25 DATE:8
Dean:
I'm going to take another stab at this stipulation project that we started, because it may influence what we tell Judge Willis by the time the SJQ is submitted Monday (although much more utility for trial planning purposes).
I have reviewed your previous position on witness stipulations, and I think I understand what you are generally going to agree to...now, if we can just reduce that to paper without getting too bogged down???
OK, here's my proposals:
1. I give you a disc (or a couple) that include all photos that I intend to offer. I'll name the jpegs with both the prosecution numbering system, and their "proposed" trial exhibit number. Then we can start referring to items by exhibit number and both of us will know what we are talking about.
2. You already have all documents that are likely to be exhibits (except for those recently generated, or those generated specifically for trial, like expert CV's or summary exhibits). I would like to meet sometime you are around, and have you look at what we intend to introduce, what "proposed exhibit number" corresponds with them, and then we can be on the same page with document exhibits.
3. Regarding items seized, you should already have a very good understanding of what that exhibit number refers to, since we have a photo that corresponds to the item itself (I can't think of an item of physical evidence that we don't also have either a scene photo or evidence photo of)—so those are likewise easy, and we can start calling them by their exhibit number.
4. I suspect it's easier to stipulate to the admissibility of an item or fact, rather than stipulating to the expected testimony of a person—although we get to the same place, the application of the business records exception to the hearsay rule, self-authenticating documents, case law making most physical evidence admissible irrespective of chain of custody (going to weight instead of admissibility), etc, all suggest an easier approach to stipulate to "admissibility of stuff' rather than excusing witnesses from needing to be around. A little long-winded, but I think you get the point.
So, with that in mind, I am asking for your approval of admissibility of the following:
A. Teresa Halbach’s Pap Smear—this was taken by Dr. Brown-Sullivan at UWGB Health Services; maintained by custodian Karen Swan at UWGB; shipped to Beilin Health Center, where it was maintained by custodian Carrie Majeski; and transported by DCI to Sherry Culhane at the Lab, where a DNA profile was developed. This stip eliminates all those witnesses, except Sherry of course.
B. Aerial Photos of the Avery Property—these were taken either by DCI, the State Patrol, or Local Law Enforcement, and all look pretty much the same. Although I'll still be calling witnesses to ID things shown in those photos, it does eliminate Al Hunsader as a witness.
C. PalmZire Records—these records indicate that Teresa Halbach had owned and registered her PalmZire 31 PDA; and that Steven Avery did not own one. This eliminates George Cramer as a witness.
D. Verizon Records—these records are Steven Avery landline phone records (I can only think of 10/31 being relevant at this point). Melissa Marchant, data analyst for DOJ will be testifying about all phone calls as part of a timeline analysis (Steve's cell, Steve's landline, Teresa's cell and Teresa's
EXHIBIT 61/25/2007
Page 2 of 3
landline)...but I don't think these records themselves are at issue. This eliminates Shelly Halfman as a witness.
E. TDS Records—these records are Teresa Halbach's landline phone records, and eliminate Nicole Mauritz as a witness.
F. Cingular Records—these records are Teresa Halbach's cell records, and eliminate Deanna Bache as a witness. If unwilling to stip to these records, will you at least allow us to substitute a "local" Cingular records custodian, so that Ms. Bache does not have to travel from out of state just to authenticate the records?
G. Cellcom Records—I am not asking that you stipulate to Steve's cell records, as I may have a few questions for Bobbie Dohrwardt about what some codes mean on the records themselves—she will be a short witness. Again, Melissa Marchant will be "putting all 4" set of records together and can be questioned about any of the calls made!
H. 911 Call to Calumet Sheriffs Dept, on 11/5—this call was placed by Pam Sturm, she talks to Wiegert. Pam and Wiegert will be witnesses, but this stip eliminates Marie Oosterhaus as a witness to authenticate the call/record...she was the dispatcher on that day.
I. Citizen Photos of RAV4 on 11/5—Pam Sturm will view the photos, testify about what she and her daughter did and saw on the scene that morning—I understand that although Pam was standing next to her daughter Nikole when the photos were taken, that it was actually Nikole that snapped the photos. This stip eliminates Nikole as a' witness. Feel free to interview her to make sure that her testimony would be the same as her mom's anyway.
J. Photos of RAV4 Processing at Crime Lab—these photos speak for themselves, but all the people who "processed" the vehicle will be testifying (mostly by Sherry Culhane)—this stip eliminates the need for Ron Groffy to ID and authenticate the photos.
K. Photos by the Crime Lab at the Scene—John Ertl, who was the Crime Lab Field Response guy, will be testifying in the case...along with him was Guang Zhang who took some photos...again they seem to depict what they show, and Ertl can testify, but this stip eliminates Zhang from having to testify from the Lab.
L. Records from Motorola/Cingular—Teresa purchased a Motorola Razr V3 phone in August 2005 from Nick Walschinski. We intend to introduce the contract and receipt for that purchase. This stip eliminates Walschinski as a witness.
!
M. Intimate Treasurer's Records—Steve and Barb shop at Intimate Treasures, an adult novelty store in Manitowoc on October 10, 2005 (I think) and each purchase a set of handcuffs and leg irons. The receipt for these items, and the items themselves may or may not be admitted, but I'd like to not have to call Ms. Lehr just for that purpose. Stipulation to what she would testify to would be good...and we can discuss the relevance or probative value without her having to be there I suspect.
i
N. Teresa Halbach Dental X-Rays—Teresa had dental work done by Dr. John Krupka in Kaukauna, which included standard "Panorex" X-Rays. These are used later by the Forensic Odontologist, Dr. Simley, who will testify as to ID of Tooth #31 which is found. Stipulation to these dental records and X- Ray eliminate the need for Dr. Krupka.
O. Teresa Halbach's Death Certificate—this is a great example of a self authenticating record, but your stip eliminates Mike Klaeser, the Calumet County Medical Examiner from having to testify. By the way, I'm not asking you to conceed this document's relevance.
P. The Analysis of Steve's Grand Am—this vehicle was seized by Marinette Co. Sheriffs Deputy Barry Degnitz, transported to Madison for processing, where Sherry processed it. This stip eliminates Degnitz, and any transport officers.
Q. Toyota Key Records—Donna Conick would testify that 1 out of every 5000 keys, of the kind found in Avery's bedroom, would be cut to fit the ignition of a random Toyota (or similar testimony)...as I
1/25/2007
Page 3 of 3
understand, Ms. Conick is not from Toyota itself, but an insurance research outfit that knows such things. All I'm asking is that if we intend to introduce this testimony, you allow a local rep, with the same credentials, to testify so Ms. Conick does not need to travel from out of state. That local witness would be Larry Burzinski from Valders.
R. Computer Analysis of Steve, Teresa's and Brendan's Computer—Mike Veile, of the Grand Chute PD, analyzed the hard drives of these 3, and found nothing much of evidentiary value. We may wish to introduce the fact that they looked. This stip eliminates Officer Veile as a witness.
S. FBI Animation of the SUV—Carl Adrian, of the FBI in Virginia, did the computer animation of the SUV...if the judge rules this demonstrative evidence admissible, I'd like to avoid flying Carl out here.Like any good cop, however, he's happy to come, so this one is not that big a thing.
T. FBI Transmittal Officers—as you know, transmittal of evidence from Wisconsin to whatever FBI Lab does the analysis is pure chain of custody stuff—those witnesses that could be avoided include Jerry Mullen; Fred Pflueger; Frank Magestro; and Eric Lawson. We would stilt call whoever recovered the evidence at the scene, and whoever the analyst was who looked at the evidence (Doug Hares, Les McCurdy, Eric Smith, Curtis Thomas, or others) if required.
U. DCI Transmittal Officers—transmittal of evidence from around here to Madison usually was done by a DCI person, who may be eliminated with a stip. Those people include Dorinda Freymiller; Jim Holmes; Matt Joy; Kim Skorlinski; and Lisa Wilson. You may have other uses for these witnesses, but I'm hoping transmittal is not one of them—by the way, Tom is examining these wits and I haven't discussed this with him, but you can still give me your thoughts on objection to admissibility as it relates to transmittal people.
V. X-Rays of Cranial Pieces—Dr. Eisenberg, the Forensic Anthropologist, had some cranial pieces x- rayed, with the assistance of Margaret Kessenich. She's an X-Ray Tech only, and I'd ask that you stip to her part. Several experts may have opinions about those x-rays, but I'm guessing the films themselves will not be at issue.
W. Photos Generally—as you know, photos have been taken throughout this case. We've been diligent in getting them to you. Whether at the scene, or of other evidence, they are helpful to both sides. I’d like to agree to have them admitted, so we don't have to worry about authentication (since they show what they show)—but we are prepared to do that if you require. Please let me know if this stip can be reached, because it may not eliminate any witnesses per se, but will eliminate a great deal of unnecessary and boring testimony. These photos are identified in the exhibit proposal I sent you.
There are several witnesses I have decided to cancel and some that I am going to "save" for rebuttal, but those remain potential witnesses and we'll just have to wait and see what the defense intends to introduce at trial.
By the way, although we don't have to list rebuttal witnesses, do you think we should add other Manitowoc County Officers who "may" be called in this case?—what I envision is that the defense makes something out of what happened at the scene, and we call a cop who was out there as a rebuttal witness, and maybe a juror knows them. Now we have the situation that we haven't identified them on the SJQ (because they are lay rebuttal wits), but it could raise an issue when the trial begins—any thoughts about that?
OK, there's my effort for the day—let me know when you can, so we can tell Judge Willis where we are at regarding stipulated facts or witnesses. We'll have to have this done by 2/2 obviouslyl It's a big job, but It has to be done. This and the exhibit list will go a long way to this trial running as smooth as possible. Thanks.
Ken
1/25/2007
Page 1 of 2rr
Kratz, Ken
From: Dean Strang [[email protected]] Sent: Sunday, February 04, 2007 3:16 PMTo: [email protected]: [email protected]: Stipulations
Ken - With apologies for the time this has taken, Jerry and I are willing to stipulate as follows. See your own January 25, 2007 e-mail to me for the lettered paragraphs.
A. We will stipulate to the authenticity of the pap smear. You need only tie up relevance with Sherry Culhane.
B. We will stipulate to the authenticity of aerial photographs of the Avery property. Our objections, if any, would be to relevance or 904.03 considerations (perhaps cumulative quality?) only.
C. We will stipulate that Teresa Halbach owned and registered a PalmZire 31 PDA and that Steven Avery did not.
D. On this we are unclear, because we cannot decode the Verizon Records entirely. Shelly Hallman may remain a necessary, but short, witness.
E. We will stipulate to the authenticity and business records foundation for Teresa Halbach’s TDS records. There will be no hearsay or authenticity objections, in other words. We reserve the right to challenge relevance or completeness, although I am not sure that we will.
F. We will not stipulate to Teresa Halbach’s Cingular records, or to use of a “local” stand-in custodian. You should plan to call Deanna Bache as a witness.
G. As to Steven Avery’s Cellcom records, I understand you not to be requesting any stipulation.
H. We will stipulate to the authenticity of the 911 call, so you need not call Marie Oosterhaus. Relevance and 904.03 and conceivably hearsay remain open questions.
I. We will stipulate to the authenticity of the Sturm photographs. Again, although relevance and 904.03 may prove undisputed, we reserve the right to challenge either or both. But you need not call Nikole Sturm.
J. This is the one topic (the necessity of Ron Groffy) on which we remain undecided. Let us tell you that Monday or Tuesday. Since he works for the Wisconsin Crime Lab, I assume that is no great inconvenience. If it is, let me know and we will resolve the issue sooner rather than later.
K. We will not stipulate the Crime Lab’s scene photographs. So you should plan, I assume, on calling both Ertl and Zhang.
L. We will stipulate that Teresa Halbach purchased a Motorola Razr V3 phone in August 2005, and allow admission of the contract and receipt, You need not call Nick Walschinski.
2/5/2007
Page 2 of2
t '
M. We will not stipulate as to Intimate Treasure or its records. If you want to introduce evidence about this stuff, we want an appropriate live witness.
N. We will stipulate to the authenticity of Dr. Krupka’s Panorex x-rays, and further will stipulate that he would have testified that the x-rays at issue show Teresa Halbach’s teeth. The intention is that you not have to call Dr. Krupka.
O. We will not stipulate to admission of the death certificate or stipulate away the testimony of Mike Klaeser.
P. We will stipulate to the transport of Steven Avery’s Grand Am. You need not call Degnitz or other transport officers.
Q. We will not object to a local person, such as Larry Burzinski, offering the testimony you outline in this paragraph.
R. As to Mike Veile, we will not stipulate as to Teresa Halbach’s computer because we may want to offer some of her e-mails. Brendan’s computer is not relevant unless he is a witness or his statements are offered, so that is premature. We will stipulate that nothing of evidentiary value was found on Steven Avery’s computer when the hard drives were analyzed by law enforcement.
S. We will not stipulate away Carl Adrian’s testimony, or the authentication and admissibility of the RAV-4 computer-generated exhibit(s).
T. Other than the blood vial at issue on Friday, February 2,2007, we will stipulate to the authenticity of exhibits transported by the FBI, so that you need not call FBI witnesses solely for chain of custody.
U. Likewise, other than the blood vial described in paragraph T above, we will stipulate to the authenticity of exhibits transported by DCI, so that you need not call DCI witnesses solely for chain of custody. The proviso is this: we will not stipulate away Kim Skorlinski entirely, so if you were planning to call him ONLY as to evidentiary escort, we want him to testify. If he is going to testify anyway about other topics in the state’s case-in-chief, you need not elicit testimony on pure transmittal or evidentiary escort.
V. We will stipulate to the authenticity of the x-rays of bone fragments, without conceding relevance or possible 904.03 or 907.01 - 907.05 issues. But in any event, this means you need not call Margaret Kessenich.
W. We will stipulate to authenticity of photographs, provided none have been digitally altered or otherwise altered materially. Again, we reserve the right to make relevance or 904.03 objections.
I think that covers it all. If I have missed anything, let me know.
Dean
2/5/2007
STATE OF WISCONSIN VS. STEVEN A. AVERY CASE NO. 05 CF 381
FEBRUARY 13, 2007 AT 8:59 A.M.HON. PATRICK L. WILLIS PRESIDING.KENNETH KRATZ, SPECIAL PROSECUTOR, NORM GAHN, SPECIAL PROSECUTOR AND TOM FALLON, SPECIAL PROSECUTOR APPEARING FOR THE STATE.DEFENDANT IN CUSTODY AND BY HIS ATTORNEY’S DEAN STRANG AND JEROME BUTING.REPORTER: DIANE TESHENECK CLERK: JANET BONIN
JURY TRIAL - DAY TWO
Court calls the case outside the presence of the jury.Attorney Kratz has several objections to Attorney Strang’s opening statement yesterday. The first has to deal with third party bias, second institutional bias and third statements of Steven Avery.Attorney Strang responds to Attorney Kratz’s objection.Court comments and finds that these issues are not objectionable and that opening statements are just that, opening statements. If something was said in opening that does not come up in trial it will be brought up in closing by opposing counsel.Counsel have some stipulations which they will address at a break.
At 9:15 a.m. the jury is brought in.Court apologizes to the jurors regarding the bussing and states he will be addressing the issue.
4) ANGELA SCHUSTER, is sworn and testified, for the State.Exhibit 11, photograph taken at Avery Salvage property of trailer on 06-20-05, marked, Exhibit 12, photograph taken at Avery Salvage property of truck on 08-22-05, marked, Exhibit 13, photograph taken at Avery Salvage property of black car on 08-29-05, marked,Exhibit 14, photograph taken at Avery Salvage property of red car on 09-19-05, marked, Exhibit 15, photograph taken at Avery Salvage property of blue car on 09-19-05, marked,Exhibit 16, photograph taken at Avery Salvage property of silver car on 10-10-05, marked,State offers exhibits eleven through sixteen into evidence.No objection by the defense. Court will receive exhibits eleven through sixteen.Exhibit 17, photo shoot re-shoot form, marked,Exhibit 18, appointment detail for Teresa Halbach on 08-18-05, marked,Exhibit 19, appointment detail for Teresa Halbach on 09-19-05, marked,At 10:16 a.m. court recesses for morning break to resume at 10:35 a.m.Attorney Strang moves exhibits eighteen and nineteen into evidence. No objection by the State.
EXHIBIT 7
Court will receive exhibits eighteen and nineteen.At 10:16 a.m. court reconvenes outside the presence of the jury.Attorney Kratz wishes to make an offer of proof with the next witness before bringing the jury in.5) DAWN PLISZKA, is sworn and testified, for the State outside the presence of the jury.At 10:42 a.m. court excuses this witness from the courtroom to hear arguments.Attorney Kratz argues this statement is being offered for recent perception and asks the court to allow its admissibility.Attorney Strang responds and suggests exclusion of this statement.Attorney Kratz responds and again asks the court to allow the statement.At 10:52 a.m. court recesses to research before making his decision.At 11:15 a.m. court reconvenes outside the presence of the jury.Court had previously ruled the statement could be admissible given appropriate foundation.Court states this is a very close decision based on recent case law, he is concerned about the lack of context the statement was made in. The relevance is less than prejudicial. Court is going to deny the request to admit this statement.
At 11:19 a.m. jury in courtroom.!
I5) Dawn Pliszka, is sworn and testified, for the State.State moves exhibit 17 into evidence. No objection by the defense. Court will receive exhibit 17.
Exhibit 20, lead form dated 10-31-05, marked,Exhibit 21, lead form dated 10-29-05 and faxed back by Teresa on 10-31-05, marked, Exhibit 22, lead form that prints with schedule, marked,Exhibit 23, lead sheet of Teresa dated 10-10-05, marked Exhibit 24, private photo log done by Teresa, marked,
;
At 11:58 a.m. court will recess for noon break.Court admonishes the jury not to discuss the case.Attorney Buting moves exhibits 20 through 24 into evidence. Attorney Kratz objects to exhibit 24 on the basis the witness could not identify it.Court will admit exhibits 20 through 24 into evidence.At 12:01 p.m. recess for noon to resume at 1:00 p.m.At 1:05 p.m. court reconvenes. All parties present as before. Jury present.
6) CURTIS DRUMM, is sworn and testified, for the State.Exhibit 25, photograph aerial view of Avery property, marked, offered and received.7) STEVE SCHMITZ, is sworn and testified, for the State.8) JOELLEN ZIPPERER, is sworn and testified, for the State.Exhibit 26, bag containing materials from Auto Trader Magazine given to Ms. Zipperer, marked,Exhibit 27, photograph of items in exhibit 26, marked,
Attorney Kratz moves exhibits 26 and 27 into evidence. No objection by defense.Court will receive exhibits 26 and 27 into evidence.At 1:51 p.m. court excuses the jury because Attorney Kratz wants to be heard outside their presence.Attorney Kratz argues that this hearsay and offering the testimony in lieu of the witness. At 1:52 p.m. court excuses the witness.Attorney Strang indicates he is leading the witness. He is not offering for the truth of the matter asserted but the facts that these events occurred.Attorney Kratz responds regarding relevance.Attorney Strang states the relevance is whether this was investigated without bias.Court given how little the witness remembers about the incident the court does not see the need to rule on it.At 2:02 p.m. the jury returns to the courtroom.Mrs. Zipperer resumes the witness stand.Exhibit 28, written statement of Mrs. Joellen Zipperer, marked,
9) RYAN HILLEGAS, is sworn and testified, for the State.At 2:31 p.m. court will recess for afternoon break. Court excuses the jury and admonishes them not to discuss the case.At 2:54 p.m. the jury is back in the courtroom.Mr. Hillegas resumes the witness stand. Attorney Buting begins with cross-examination.
10) PAMELA STURM, is sworn and testified, for the State.Exhibit 29, photograph of back of RAV4 tire taken 11-05-05, marked,Exhibit 30, photograph of side of RAV4 taken 11-05-05, marked,Exhibit 31, photograph of front of RAV4 with debris on it taken 11-05-05, marked, Exhibit 32, photograph of left rear tire taken 11-05-05, marked,Exhibit 33, photograph of left side driver’s side door taken 11-05-05, marked,Exhibit 34, photograph of top of vehicle with branches taken 11-05-05, marked,Exhibit 35, CD-Rom of call made to Sheriff Pagel from Pam Sturm, marked,State offers exhibit 35 into evidence. No objection by defense. Court will receive exhibit35.State offers exhibits 29 through 34 into evidence. No objection by defense. Court will receive exhibits 29 through 34.At 4:30 p.m. court excuses the jury for the day. Court admonishes the jury not to discuss the case or listen to any news casts.Outside the presence of the jury.Attorney Buting has a new discovery request, he has not received any reports of activity down by the river in Mishicot or the finding of a cell phone and pictures being taken of it. Also Attorney Buting had the understanding that exhibit 25 was take on 11-04-05 according to Curt Drumm’s testimony. Defense has not received any photos that were taken that day they only received a video tape. Now looking at Exhibit 25, it was actually take later on 11-08-05.Attorney Kratz states his questioning of Curt Drumm was if the photograph looked similar and in fact one of the stipulations of counsel were the aerial photos.
Attorney Kratz states he had no knowledge of a cell phone down by the river in Mishicot and no reports came into his office.As for the photos from the airplane Curt Drumm was flying there were no photos taken as he testified to only video which was turned over to the State.Attorney Buting asks Attorney Kratz to look for the information regarding the cell phone. Attorney Kratz states it is not in his possession and perhaps defense should look for it. Attorney Kratz will review his reports and make some inquiries.Court will ask the State to determine if there are any reports and share them with defense. Court states maybe someone should inform the jury when exhibit 25 was actually taken.
Stipulation of Counsel1) After the witness Schmitz left the witness stand. State forgot to ask his telephone
number. Counsel will stipulate that it is 894-3912.2) DNA exemplar of Teresa Halbach pap smear would be admitted without
witnesses as to how it was obtain or stored.Attorney Strang wants the 02-04-07 e-mail to Attorney Kratz to be part of the record. Court has no objection to admitting a clean copy of the stipulations. Attorney Kratz will offer his e-mail of 01-25-07 and Attorney Strang response on 02-04-07 as an exhibit and have it received for the record.Exhibit 36, marked, offered and received.Attorney Kratz directs Attorney Buting to page 185 of Calumet County Sheriffs department report that will contain the information he is looking for about the cell phone.
<
Adj: 4:50 p.m.
STATE OF WISCONSIN CIRCUIT COURT MANITOWOC COUNTY
STATE OF WISCONSIN,Plaintiff, Matofrs’if/Oc cotifi'iV
FILED Case No. 05 CF 381vs.
JAN 30 2007STEVEN A. AVERY,Defendant.
DECISION AND ORDER ON ADMISSIBILITY OF THIRD PARTYLIABILITY EVIDENCE
The court previously issued its “Order Regarding State’s Motion Prohibiting
Evidence of Third Party Liability (“Denny” Motion)” on July 10, 2006. That order
provided in part as follows:
“Should the defendant, as part of his defense, intend to suggest that a third party other than Brendan Dassey is responsible for any of the crimes charged, the defendant must notify the Court and the State at least thirty (30) days prior to the start of the trial of such intention. In that event, the defendant will be subject to the standards relating to the presentation of any such evidence established in State v. Denny, 120 Wis. 2d 614 (Ct. App. 1984)."
Pursuant to the court’s July 10, 2006 order, the defendant filed “Defendant’s
Statement on Third-Party Responsibility” on January 8, 2007. The State filed its
“Memorandum to Preclude Third Party Liability Evidence” on January 12, 2007.
The court heard oral argument on the third party liability issue at. a hearing on
January 19, 2007.
EXHIBIT 8/<y'
While the parties dispute its applicability to the defendant’s offer of proof,
the leading Wisconsin case on the issue third party liability evidence is State v.
iDenny, 120 Wis. 2d 614 (Ct. App, 1984). The defendant in that case, Kent
Denny, was charged with first-degree murder. At trial, he claimed that he had no
motive to murder the victim, but that a number of other individuals did. The trial
court refused to allow the defendant to present such evidence because it was not
accompanied by any evidence that the other individuals had an opportunity to
commit the crime or a direct connection to it. The Court of Appeals upheld the
trial court’s refusal to admit the evidence, In its decision, the court adopted what is
known as the “legitimate tendency” test. Under that test, a defendant seeking to
introduce evidence asserting the motive of a third party or parties to have
committed the crime must produce evidence that such party or parties had the
opportunity to commit the crime and that there is some evidence which is not
1 The defendant has alternately claimed that the Wisconsin Supreme court has or has not adopted the Denny legitimate tendency test. In the defendant’s June 26, 2006 Defendant’s Response to State’s Motion to Prohibit Evidence of Third Party Liability (Denny Motion), defense counsel recognized that “Denny has been adopted by the Wisconsin Supreme Court and Avery acknowledges its application in this case should he seek to introduce evidence of third party liability for Teresa Halbach’s death. See, State v. Knapp, 265 Wis. 2d 278, 351-52, 666 N.W. 2d 881 (2003), vacated on other grounds, 542 U.S, 952 (2004), reaffirmed on remand, 2005 WI 127, 285 Wis. 2d 86, 700 N.W. 2d 899.” at p. 3. By January 8, 2007, however, the defendant had come to the conclusion that “the Wisconsin Supreme Court has never adopted Denny.” Defendant’s Statement on Third-Party Responsibility at p, 3. The court believes the defendant had it right the first time. The Wisconsin Supreme Court ruled in Knapp as follows;
“The general rule, adopted by this court, concerning the issue is that evidence tending to prove motive and opportunity to commit a crime regarding a party other than the defendant can be excluded when there is no direct connection between the third party and the alleged crime.” (Citing Denny) 265 Wis. 2d at 351.
2
remote in time, place or circumstances to directly connect any third party to the
crime.
The defendant in this case initially acknowledged “that the Denny rule must
be satisfied should he decide to offer third-party liability evidence, other than
against Dassey.” Defendant’s Response to State’s Motion to Prohibit Evidence of
Third-Party Liability (Denny motion) dated June 26, 2006 at p. 1. The defendant
now claims, however, that Denny is not applicable to this case and that the
defendant should be permitted to introduce evidence of potential third party
liability on the part of a number of individuals evaluated solely on the basis of its
admissibility under §§904.01, 904.02, and 904.03.
The defendant argues that Denny does not apply because while the defendant
in Denny argued that third persons had a motive to commit the crime, “Avery does
not propose to suggest that anyone had a motive to kill Teresa Halbach.”
Defendant’s Statement on Third-Party Responsibility, p. 3. The defendant further
argues that since the prosecution is not required to prove motive as an element of
any of the crimes with which he is charged, he should not be required to prove
motive as a prerequisite to submitting evidence of third party liability.
The defendant is correct that since he is not seeking to prove motive on the
part of any other third party, this case is not squarely on all fours with Denny.
Denny was not required to specifically address the issue of whether proof of
0
motive is a prerequisite to offering third party liability evidence because the
defendant offered to show motive as part of his offer of proof. This court cannot
conclude, however, that the distinction on the issue of motive means that Denny is
not controlling in this case. Denny required a defendant offering third party
liability evidence to show proof of motive, opportunity and a direct connection to
the crime, It does not follow that if a defendant is unable to show motive, he is
somehow freed from the requirements of the legitimate tendency test. In fact, the
most logical reading of Denny is that all three facets of the legitimate tendency test
must be met for third party liability evidence to be admissible. Denny specifically
held “our decision establishes a bright line standard requiring that three factors be
present, i.e., motive, opportunity and direct connection.” Denny at 625. The
evidence offered by the defendant in Denny was ruled inadmissible because it
demonstrated motive, but not opportunity or direct connection, There is nothing in
the decision to suggest that a defendant who demonstrates opportunity and direct
connection is somehow excused from demonstrating motive.
The defendant asserts that Denny should not control because no one had a
motive to commit the charged crimes. The defense does not provide support for
this novel proposition. The court does not view the Amended Complaint as
alleging a motiveless series of crimes. Although the court has gleaned from
representations, made by counsel in the course of these proceedings that evidence
4
obtained by the State subsequent to the filing of the Amended Complaint may
affect the precise version of what it intends to prove happened, the court does not
accept the unsupported statement that no one had a motive to commit the crimes.
The defendant argues that a Wisconsin Supreme Court decision, State v.
Scheidell, 227 Wis. 2d 285 (S. Ct. 1999) is more analogous to this case than Denny
and should guide the court’s analysis. The defendant in Scheidell was charged
with attempted sexual assault for having allegedly broken into the residence of a
woman in his apartment building through an open window in the early morning
hours. The victim testified that her assailant straddled her body while she was in
bed in her bedroom, struck her in the face a number of times and tried to pull off
her underpants. She testified she identified the defendant, who was wearing a ski
mask with holes for his eyes and mouth, as Scheidell and asked him by name what
he was doing a number of times. Each time she addressed him by name the
assailant hesitated briefly, then struck her again. Eventually, she was able to reach
a pistol from her dresser and succeeded in getting the assailant to leave. The
assailant never said a word during the entire attack. At trial, the defendant sought
to admit evidence of a somewhat similar attack against a different victim
committed approximately five weeks later while the defendant was being held in
jail. The Supreme Court ruled that the Denny legitimate tendency test should not
apply the facts in Scheidell because where the identity of the third party is
( 5
unknown, “it would be virtually impossible for the defendant to satisfy the motive
or opportunity prongs of the legitimate tendency test of Denny.” Id. at 296. The
court concluded that Denny did not apply to other acts evidence committed by an
unknown third party. Rather, the court reasoned that when a defendant offers other
acts evidence committed by an unknown third party, the court should apply the
Sullivan other acts evidence test, and balance the probative value of the evidence,
considering the similarities between the other act and the crime charged, against
the considerations found in §904.03. Id. at 310.
The court finds the defendant’s argument that Scheidell is closer to the facts
in this case than Denny to be unpersuasive. As pointed out by the State, this case
does not involve any unknown third parties. The defendant does not offer any
evidence to suggest that some unknown third party committed the crimes charged.
The defendant has identified a number of persons by name who he claims were on
or near the Avery property on October 31, 2005 and would have had an
opportunity to commit the crime. Another distinction is that Avery is not seeking
to offer any other acts evidence. Rather, he wishes to offer direct evidence that one
or more identified third persons may have actually committed the crime. This is
exactly what the defendant in Denny attempted to do. Also significant is the fact
that while the defendant is Scheidell did not know the name of the third party, he
did have evidence that the third party had motive, based on his alleged commission
(*)
of a similar crime. While the facts in Denny may not be precisely on point with
those of this case, they are far more applicable to this case than the facts in
Scheidell.
The court concludes that the defendant’s offer of third party liability
evidence must be measured by the legitimate tendency test established in Denny.
The defendant knows the identity of third parties who may have had an opportunity
to commit the crimes. They are identified in his pleading. Unlike the defendant in
Scheidell, he is not precluded from determining whether any of them may have had
a motive to do harm to Teresa Halbach. He simply acknowledges that he has no
evidence to offer that other persons with opportunity had the motive to commit the
Thus, if the Denny legitimate tendency test applies as it was originallycrimes.
established in Denny, and the court concludes that it does, none of the offered
evidence is admissible because the defendant does not contend any of the other
persons present at the Avery property on October 31, 2005 had a motive to murder
Teresa Halbach or commit the other crimes alleged to have been committed against
her.
The court acknowledges the remote possibility that an appeals court could
choose to distinguish Denny and conclude that under some circumstances a
defendant could meet the legitimate tendency test by producing evidence of such
probative value as it relates to opportunity and direct connection to the crime that
f7)
proof of motive is not required. The court is not aware of any decision from any
jurisdiction which so holds, but an argument could be made that despite Denny’s
“bright line standard” that “three factors be present,” strong evidence of
opportunity and direct connection to the crime might make up for the lack of
motive evidence. After all, Denny, while adopting the legitimate tendency factors
from People v. Green, 609 P.2d 468, 480 (Cal. 1980), declined to adopt Green’s
conclusion that the evidence submitted be “substantial,” in recognition of
Wisconsin’s more liberal policy on the admission of relevant evidence. Denny,
supra, at 622-623. Allowing for the possibility an appellate court might permit the
defendant to meet the legitimate tendency test requirements by offering other
evidence of sufficient opportunity and a direct connection to the crime in the
absence of a demonstration of motive, the court will individually examine the
persons identified by the defendant who could potentially be responsible for Teresa
Halbach’s homicide and the evidence the defendant proposes to offer with respect
to each person, keeping in mind the admonition of Denny that “evidence that
simply affords a possible ground of suspicion against another person should not be
admissible.” Denny, supra, at 623.
The opening sentence of the defendant’s “Alternative Denny Proffer”
suggests the weakness of his argument:
“If the court does conclude instead that Denny applies here, then Avery identifies each customer or family friend and each
(8)
member of his extended family present on the Avery salvage yard property at any time during the afternoon and early evening on October 31, 2005, as possible third-party perpetrators of one or more of the charged crimes.”
This offer appears to be an example of the dangers warned of by the court in
Denny.
“Otherwise, a defendant could conceivably produce evidence tending to show that hundreds of other persons had some motive or animus against the deceased - degenerating the proceedings into a trial of collateral issues.” Denny, supra, at 623-624.
In this case, the defendant has not identified a large group of people with motive.
but rather a large group of people with opportunity. The danger of degenerating
the proceedings into a trial of collateral issues remains the same.
1. Scott Tadvch. The facts offered by the defendant in support of his
argument that Scott Tadych may have potential liability are found at pages 10 and
11 of the Defendant’s Statement on Third-Party Responsibility. The offer of proof
does not show a correlation between the time Scott Tadych was present on the
property and the time Teresa Halbach was reported by others to have been on the
property. Other parts of the defendant’s offer of proof place Teresa Halbach on the
property at about 3:30 p.m. Her business of photographing Steven Avery’s vehicle
would have been completed well before 5:15 p.m. had the crimes against her not
taken place, yet the only proof offered is that Tadych didn’t get on the scene until
5:15 p.m. Any claim by Tadych that he saw a fire behind the defendant’s trailer
A)
would appear to be more consistent with the State’s theory of the crime than any
liability on the part of Mr. Tadych. The defendant does not explain the
relationship of the other facts recited to the crime. In the absence of motive,
certainly something more would be required than what is alleged to take the
information out of the category of speculation. Did Mr. Tadych know who Teresa
Halbach was? Did Mr. Tadych know that she would be on the premises on that
day? Is there any other evidence that would “directly connect” him to the crime?
These questions are not addressed in the defendant’s offer of proof,
Andres Martinez. The facts offered by the defendant in support of his2.
argument that Andres Martinez may have potential liability are found at pages 11
through 14 of the Defendant’s Statement on Third-Party Responsibility, The offer
includes evidence that Mr, Martinez can be a violent man, as reflected in the
reported November 5, 2005 attack on his girlfriend with a hatchet. There are also
indications that he gave conflicting statements to the police department concerning
his acquaintance with the defendant and what he knew or did not know about the
Conspicuously missing from the offer is any indication that Mr. Martinezcrimes.
had any opportunity to do harm to Teresa Halbach, let alone a motive to do so. He
denies being at the Aveiy salvage yard on October 31 and the court sees nothing in
the offer of proof to indicate that any other person places him on the property on
October 31. In addition, there is no indication that he knows who Teresa Halbach
10
was or that she would be present on the property on October 31. Again, the offer
falls clearly within the range of speculation and far short of meeting the legitimate
tendency test, either as specifically stated in Denny or as it might be otherwise
conceivable applied.
James Kennedy. Mr. Kennedy was listed as a third party having3.
potential liability in the defendant’s statement, but at oral argument the court was
informed by defense counsel that Kennedy himself would not be a suspect, but
might be offered as a witness to provide testimony against others. Therefore, the
court does not address an offer of proof against James Kennedy as the court
understands an offer of proof is not being made.
Charles Avery. The evidence proffered against Charles Aveiy is4.
Charles Avery, one of the defendant’s brothers,found at pages 15 and 16.
allegedly was present on the salvage yard property on October 31, 2005. While he
did not know Teresa Halbach by name, he allegedly knew “the photographer” was
expected to be visiting the property on October 31. The defendant indicates that
James Kennedy arrived at the Aveiy Salvage Yard property around 3:00 p.m. and
no one was in the office, which was unusual. After about five minutes, Charles
Avery appeared from the back of the building. The court is left to speculate how
this somehow “directly connects” Charles Avery to the crime. The defendant
attempts to derive significance from the fact Charles Avery’s trailer home was the
(■■)
closest one to the location where Teresa Halbach’s vehicle was found, but doesn’t
say what the distance was. It’s the court’s recollection from the Preliminary
Examination that the trailer homes are not that far from each other and that none of
them were very close to the site where the vehicle was found. In any event, the
court cannot draw any significance from the facts offered. This is also true for the
statement that Earl Avery told police that Charles Avery had spoken to a woman
associated with Auto Trader magazine at a time not specified by the defendant.
The facts listed arguably show that Mr. Avery would have had an opportunity to
commit the crime, but there is no suggestion he had any motive to do so, nor is
there any evidence to directly connect him to the crime.
Robert Fabian and Earl Avery. What would be an offer of proof5.
against Robert Fabian and Earl Avery is summarized at pages 16 and 17. As near
as the court can tell, the only evidence that might tie Robert Fabian to the crime is
that he may have used a .22 caliber rifle while rabbit hunting that afternoon and a
bullet from a .22 caliber rifle is alleged to have struck Teresa Halbach. There is no
evidence relating to motive, opportunity or any other type of direct connection to
the crime. The court is not sure that the defense actually intends to offer third-
party evidence against Mr. Fabian, but if he does, his offer falls far short.
With respect to Earl Avery, there is no suggestion that he knew who Teresa■A
Halbach was during her lifetime. The defendant asserts that Earl Avery returned to
the salvage yard driving a flatbed car hauler which could have been used to move
Ms. Halbach’s Toyota to the place where it was found. There is no evidence
offered to suggest that Ms. Halbach’s Toyota RAV 4 was not driven to the place
where it was found. The defendant does not offer any evidence to suggest it was
moved to the place where it was found by a flatbed car hauler. It is alleged that
Earl Avery’s whereabouts in the salvage yard are unknown until Fabian arrived to
hunt rabbits with him late in the afternoon, but there is no suggestion why that
would be unusual. The Avery salvage yard is a large parcel of property. The
defendant attributes significance to the fact that a .22 caliber rifle would be
appropriate for hunting rabbits and it was a .22 caliber rifle bullet that the State
asserts was fired into Teresa Halbach’s body. There is no suggestion, however, of
any evidence to dispute the State’s claim that ballistic evidence matches the bullet
to a weapon possessed by Steven Avery. Viewing Earl Avery’s possible use of a
.22 caliber rifle in light of Holmes v. South Carolina. 126 S. Ct. 1727 (2006), the
fact that the State will be introducing evidence that the .22 caliber bullet came from
a weapon owned by Steven Avery does not alone prevent the defendant from
introducing evidence to the contraiy. However, for any weapons owned by other
persons to be of any more than speculative significance, the court would expect at
least evidence that they were tested and could not be ruled out as the weapon from
13■;
which the .22 caliber bullet found was fired. Otherwise, evidence concerning those
weapons would bring only confusion and add nothing to the search for truth.
The defendant also makes reference to a golf cart belonging to his mother
which Earl Avery drove at about 3:30 in the afternoon on October 31 and the fact
that a cadaver dog later “alerted” on a golf cart. The defendant does not elaborate
on the significance of the dog “alerting” on the golf cart, what role the defendant
asserts the cart may have had in the commission of the crimes, or whether the golf
cart used by Earl Avery is the one which was alerted on, The defendant indicates
that Earl admitted driving past the location where Teresa Halbach’s Toyota was
later discovered, but in the absence of any indication as to what time her vehicle
was placed at the location where it was found, that fact does not appear to have any
special significance.
Passey Brothers. A summary of the offered evidence against Blaine,6.
Bobby, and Bryan Passey, all Bryan Passey’s brothers, is found at pages 18 and
19 of the Pefendanf s Statement on Third Party Responsibility. The summary
suggests that Blaine, Bobby, and Bryan Passey may all have been present on the
Avery property at or about the time Teresa Halbach is alleged to have been killed.
However, along with no allegation of any motive, the facts presented by the
defendant do not suggest any direct connection that any of the Passey brothers
would have to the crime, other than the fact they happened to be on the Avery
64
property. In the absence of any allegation regarding motive, mere opportunity is
insufficient to justify admission of the third party liability evidence.
In summary, with the exception of Scott Tadych and Andres Martinez, the
other persons identified by the defendant may have had an opportunity to commit
some or all of the crimes charged in the sense that they were near the alleged crime
scene at the time of the alleged crimes. The defense fails to offer any meaningful
evidence, however, to suggest that any of the persons named were directly
connected to the crimes in any way. In the absence of motive, it certainly may be
more difficult for the defendant to offer evidence which is relevant and materiala
connecting a third person to the crime. The court simply finds nothing in the offer
made by the defendant that goes beyond the level of speculation.
ORDER
The defense is precluded from offering any direct evidence that a third party,
other than Brendan Dassey, participated in the commission of the crimes charged
in the Amended Information.
Dated this jhv^day of January, 2007.
BY THE COURT:
i'.
Patrick L. Willis, Circuit Court Judge
15
