Convoluted Brian

The Michael Nifong prosecution of the Duke University Three has garnered a fair amount of news coverage starting with his desire to prosecute three Duke University students before he had enough evidence for charges.

Durham County NC, District Attorney Nifong filed kidnapping and sexual assault charges against the three in April 2006. The North Carolina State Attorney dropped all charges in April, 2007.

The center of this controversy is the all too common business of prosecutors behaving unethically and dishonestly. Normally, they get away this behavior with the result of ruined lives, coerced plea deals from the innocent, and criminal complaints that are more the result of a need for publicity than protecting society from wrongdoing by mere mortals.

Nifong was happy to give news conferences proclaiming the guilt of the charged students. Duke University immediately showed its mettle by disbanding the lacrosse team thereby punishing all members rather than the ones charged and not presumed innocent by the University President. Duke professors joined the daisy chain with their own baseless condemnations.

The accused came from well‑to‑do families. Their attorneys were not the run of the mill public defenders. The budgetary restrictions that would affect most of us in attempting to defend against the onslaught of the state were not in play.

The defendants discovered that Nifong had decided to not release evidence that cleared the players of wrongdoing. He blocked the release evidence to the public or the attorneys of the accused that DNA collected from the accused did not match DNA found on the complainant.

Nifong responded by dropping some of the charges but proceeding on rape charges. By this time, a few members of the fourth estate had reported the goings on and the facts that exonerated the accused. Some questioned the merit of the entire case.

Eventually, Nifong lost control and all charges were dropped. Tables were turned, and he became the accused. Eventually, the North Carolina Bar disbarred the embattled Nifong. He faces possible criminal charges because of his shenanigans.

Nifong used his entitlement and power in an attempt to incarcerate three innocent persons. How many others were victims of his criminal mind?

This will no doubt be an example to other prosecutors of his ilk. Bad charges stick well to the poor. Those who have the resources for a proper defense often prevail.

There is a vastly different tale in the Brendan Dassey case. Dassey was accused of raping and murdering Teresa Halbach on 31 October, 2005. He has produced four signed confessions. None of the confessions have any evidence for support, and the interrogation sessions show investigators feeding Dassey needed information. The State has used only one of these confessions because they did not support each other. Parts of the fourth confession were used for propaganda.

Dassey was a special education student at Mishicot High School. His mother and father were not wealthy.

On 2 March, 2006, Calumet County District Attorney Ken Kratz, acting as Special Prosecutor, delivered a lengthy televised j’accuse claiming Dassey had taken part in the rape, murder, and burning of Teresa Halbach.

There was no physical evidence to support this gruesomely detailed story by Kratz. The exposition was based solely on the third of Brendan Dassey’s four confessions. Kratz instructed youthful viewers to not watch. But, I doubt that youthful viewers will take orders from a face on the boob tube.

This was gross violation of ethical behavior by Kratz. One of the tenants of the legal system is a fair trial for the accused. This is seldom the case, but this lengthy and assaultive scat talk from Kratz was beyond any need for informing the public. Plus the fact, that search warrants were being executed at the time of the performance proves a rush to judgment.

The real problem here is that once Kratz placed himself in the public with his diatribe, he was committed to a plan of action no matter what the truth; much like Nifong.

At present, there is nothing to show that Kratz and his cronies actually withheld any evidence. It is only obvious that physical evidence to corroborate the confessions is totally lacking. Even information about the hood latch that investigators incredibly claim that they were unaware of prior to the confession was tutored by state special investigator, Tom Fassbender.(1)

Investigators also claimed that their tattoo question in the third interrogation was a meaningful test of Dassey’s crime knowledge. They asked him whether he remembered a tattoo, and he responded no. When Fassbender pressed for another denial of knowledge about a tattoo, the response was an “I don’t know where it is.”* When Fassbender asked about remembering a tattoo, Dassey could not remember one. When Fassbender insisted there was a nonexistent tattoo, Dassey did not dispute the statement.(2)

Subsequent investigations produced no evidence to demonstrate the validity of the confessions. It is true that the State managed to convince a well‑educated jury that no evidence is really evidence and since the State had spent so much money on the prior investigation that it was justified in not pursuing evidence here.

But, the real bottom line does not depend on the truthfulness or falseness of the confessions. Nor does it depend on the real world guilt or innocence on Brendan Dassey. Once Prosecutor Kratz committed this version to the public, he was obligated to follow it and bury the problems associated with it.

The statements of Special Prosecutor Ken Kratz were designed to prejudice and inflame the public against Brendan Dassey and his uncle Steven Avery. Kratz did not read the complaint that was filed by Tom Fassbender. That was too dry. He gave an emotional performance complete with pauses at crucial times.

In Kratz’s defense, he did include a statement about Brendan Dassey being innocent until proven guilty. It was one quiet statement in the midst of a thousand inflammatory ones. That constitutes fairness in the State of Wisconsin.

Here, there was no well‑heeled family to provide competent defense attorneys. The local news organizations were incapable of recognizing the problems with the presentation and with other more troubling behaviors of the State. The overall response from reporters displayed no independent research. My impression was that the local reporters and news writers are biased towards eugenics.

So, there has been no outcry and the local news teams have supported the State all the way.

The Wisconsin Bar has been wimpy. This organization can raise concerns about the behaviors of the Prosecutor. So far, it has stood mute.

The Wisconsin Supreme Court has resisted any efforts to increase prosecutor responsibility in cases like this. The Court has refused to included language from the American Bar Association that is specific to prosecutor publicity diatribes. And, this learned body has blessed such bad behavior as a prosecutor charging a defense attorney with a felony only to alter the course a trial. From the Court’s viewpoint, all defendants have an infinite source of resources and the poor State must be allowed its dishonesty.(3)

Consider for a moment that you are the accused. Assume that you are innocent and the prosecutor performs a similar display. Next, you are uncharged because a judge knows there is no basis for the charging.

Do you think your fellow citizens will forgive you of the allegations made by the prosecutor?

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