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March 6, 2013

Defense recalls prosecution witness

OTTUMWA — Open proceedings at Seth Techel's murder trial started late Wednesday, the second consecutive day in which jurors were not brought into court until well after the normal starting time.

The Tuesday delay was planned. Jurors were instructed not to report until 9:30 a.m. to allow time for the court to hear various motions. But Wednesday's delay involved no such notice.

The discussions, while not open to the public, did include a court reporter, which indicates they were on the record. Attorneys were in Judge Daniel Wilson's chambers until 9:50 a.m., well after court normally convenes. Wilson entered about 10 minutes later, and jurors were brought in shortly afterwards.

One juror was dismissed from the case, though it's not clear whether that was related to the discussions in chambers.

Wednesday is the second day for the defense to present its case. Steven Gardner recalled DCI agent Anthony Birmingham to the stand; Birmingham previously testified for the prosecution.

Gardner called Birmingham in part to reframe the interview between Techel and investigators jurors were shown earlier in the case. In that interview the investigator directly accused Techel of being the murderer and said information from other investigators supported it.

The defense contends that accusation was a bluff, that at the time there was no evidence against Techel. Gardner asked Birmingham whether he supplied the information the interrogator used. Birmingham said he spoke with the other agent but did not recall at what point he did so.

Gardner ran into problems when trying to ask Birmingham about what the Techels' neighbor said to investigators. Andy Prosser, one of two prosecutors, objected multiple times, arguing Gardner was seeking answers that could only be hearsay. Wilson sustained most of those objections.

Similar objections were raised when Gardner questioned Birmingham about the neighbor's sleeping habits. "He's not quesstioning him, he's arguing with him," Prosser said. Wilson sustained the objection.

It is unclear whether Techel will take the stand. The decision belongs to the defense. Defendants in a criminal case have a constitutional guarantee against self incrimination, which means they cannot be compelled to testify against themselves.

Testifying could be the best opportunity to convince jurors of his innocence, but putting a defendant on the stand is something no defense attorney does lightly. Anyone on the stand is subject to cross examination, which means Techel would be asked questions by prosecutors. That's a risk.

Defense attorneys will sometimes indicate whether they plan to call the defendant during opening statements by telling jurors they will hear from them. There was no such indication in the opening statements at this trial, but that does not mean the defense is barred from calling Techel.

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