Jurors got a new piece of evidence Tuesday before they even got into the courtroom.
Prosecutors sought to admit photos of text messages recovered from a TracFone used by Seth Techel to contact Rachel McFarland. Those text messages are important to the prosecution's efforts to establish Techel's relationship with McFarland.
Authorities generally try to download data from cell phones, but that's not always possible. In this case investigators resorted to photographing each text message, one by one. Prosecutors wanted to admit a summary of those messages for jurors to review when they begin deliberations.
Defense attorney Steven Gardner objected, saying the prosecution had failed to establish that the summary was a true representation of the originals and that prosecution witnesses failed to provide a foundation for the document.
Prosecutor Andy Prosser told Judge Daniel Wilson two witnesses, McFarland and a state investigator, testified to the accuracy of the photos. That, he said, satisfies the question of foundation.
The alternative to the summary, Prosser continued, would be a single image per page, resulting in a 590-page document for jurors. That would be clumsy and harder for jurors to use than a summary.
Wilson agreed, admitting the summary.
The discussion was one of several points brought to court before jurors were seated for Tuesday's testimony. Wilson asked jurors to report at 9:30 a.m., a half-hour later than normal, to allow for the arguments.
By asking jurors to report later, Wilson hoped to allow time for the arguments without having the jury sitting around in the jury room for an extended wait. While such steps are outside the routine, they aren't unheard of. Jurors are not generally present while attorneys argue over admission of evidence, so judges occasionally carve out time to handle those arguments before or after the day's testimony.
Gardner also sought to have the judge direct jurors to acquit Techel, saying the evidence fails to support the state's case. It's not as unusual a request as it sounds.
Defense attorneys often ask to have a directed acquittal at the end of the prosecution's case, arguing prosecutors have failed to prove their case. It's a low-risk move with a potentially high payoff. If the defense can get the case thrown out they don't have to risk having evidence or witnesses rejected or the uncertainty of a jury's deliberations.
Gardner argued investigators botched the investigation, failing to examine evidence and cherry-picking details to fit a pre-determined theory. He questioned why investigators failed to discover the murder weapon until the second day of their investigation despite standing feet from it on the day of the murder, and said the state lacked any physical evidence tying Techel to the crime.
Gardner spent considerable time discussing a sandwich found outside the Techel home. The "sandwich defense" argued the investigators should have tested the sandwich and he said failure to do so amounted to "intentional destruction of evidence."
Wilson rejected the motion, saying the elements of both first degree murder and non-consensual termination of a human pregnancy have been met by the prosecution.