Dassey Trial Notes – 25 April, 2007

There were some changes in the charges. The first‑degree sexual assault was amended to second degree. A charge of first‑degree reckless homicide was added as an alternate to the intentional homicide charge.

When Judge Jerome Fox read instructions for the jury, he included the admonition that the finding is a finding of fact, it is not based on emotion. This is a nice statement that is often honored in its breach.

Special Prosecutor Tom Fallon opened with a dramatic and emotion laden speech. The two questions he said were to be answered were: Was Brendan Dassey there? Did he help? Certainly that is the crux of the trial.

Fallon made a substantial departure from the confession and the prosecution theory to explain the telephone call Brendan received. The prosecution now has Dassey visiting his uncle, seeing Teresa Halbach, then returning home. Then after his mother and brother left, and he answered the phone; he returned to the Avery trailer. Then only because he wanted sexual intercourse. The rest of the prosecution theory remains the same except Dassey did not use a weapon to rape Halbach.

Fallon stressed the restraints, shell casings, and bullet fragments. In a case this short of real evidence, he needs to make every bit work.

Defense attorney Mark Fremgen opened the defense final statements. His what you don’t see or hear was a good approach and he spent time detailing the lack of evidence. Much of the evidence simply wasn’t requested. Fremgen pointed out that the luminol area in the garage abutted cardboard boxes, but the boxes did not luminesce.

Ray Edelstein pounded on the behavior of investigators and their questions that Dassey could easily misinterpret. He painted his client as a very poorly functioning person. The kind of person who processes questions only partially.

He mentioned the business with the hood latch and told the jury that the investigators brought it up first. I think showing the efforts the investigators had to make to steer Dassey their way would have been helpful. Edelstein went through the sequence about the tattoo that investigators claimed showed Dassey disagreed with them when they lied. Dassey did not disagree or agree or he agreed and disagreed to the same item.

Edelstein did have a problem with Dassey’s witness stand performance. I can understand it because I went through a period when my functioning was very low and I often engaged in confabulation. Many persons cannot understanding this. Edelstein chalked it up Dassey’s functioning

Edelstein also stressed that an alternate theory of Dassey’s involvement appeared early in the interrogation, but investigators ignored it.

Fallon had another chance. He labeled Dassey a mainstream student. And, Dassey confessed because he couldn’t live with the guilt.

Fallon stressed the theme that just because there was no evidence to place Dassey at any of the scene that doesn’t mean he wasn’t there. Of course, the lack of real evidence does not place him at any scene. Fallon argued that the Halbach vehicle was waiting to be crushed, but special Agent Tom Fassbender testified that it was not in a state where it could be crushed. Among other items, the vehicle still contained it gasoline tank. If a juror recalls that testimony, the crushing business is gone.

Fallon also referred to Kayla Avery’s statement, which she recanted. He said that the December 2005 statement from Kayla said that Dassey saw body parts in the fire. Kayla did ask whether blood could rise through concrete but Fallon turned that in a Dassey statement. If this statement did date from 2005, then why wait until the end of February, 2006 to take action? We’ll see how good the memories of the jurors are.

After this, Judge Fox sent to the juror into deliberation with the admonition, that they are not be dissuaded by sympathy or passion. It is just the facts jury.

I’m not sure how I would approach this as a juror. I sit here knowing things that were not introduced at trial. I have the benefit of carrying out research as I watch the trial. I have some preconceived notions that I would be expected to leave at the door. I ‘d be jonesing for internet access. I wonder if I would be wringing my hands in withdrawal.

I also had the opportunity to study parts of the confession in greater detail than is possible with only one viewing.

My tendency would be to expect some blood or DNA evidence to back up the confession. But, I do know that false confessions are more common that commonly accepted. And, my own experience of severe malfunction is something I always remember. I know how vulnerable I was to answering questions by filling in the blanks.