The End Game of the Trial of Brendan Dassey

A hearing began on 15 January, 2010 to request a new trial for Brendan Dassey. Dassey was convicted in 2007 for the 2005 rape and murder of Teresa Halbach.

One of the issues addressed in the Brendan Dassey request for retrial was ineffective counsel. Dassey had four attorneys from the time after his arrest through his conviction. The first was involved for a short time until he discovered a conflict of interest and asked to be removed. The second attorney Len Kachinsky was removed after it was discovered that he allowed presumably seasoned Wisconsin investigators to interrogate Brendan without the presence of an attorney. The final two were the trial attorneys.

The Memorandum of Facts and Law Accompanying Section 809.30 Post‑Conviction Motion (Memorandum) from the appeals attorneys details ineffective representation from his defense attorneys. His second attorney, Len Kachinsky, was shown at the hearing to be directing efforts toward convicting his client. And Kachinsky’s investigator Michael O’Kelly testified that part his direction was to gather incriminating evidence for the State’s case against Steven Avery.

One of the trial Attorneys, Mark Fremgen, stated that he felt that defense efforts and those of co‑counsel Ray Edelstein were fine. The Memorandum detailed many of these deficiencies.

My observation of the 2007 trial had me scratching my head about the efforts of the defense. Even before the trial Fremgen announced that this trial would not be about evidence. Yet, evidence was needed to show the falseness of the confessions. And, allowing the repeated claim from witnesses beholding to the State to claim that no evidence was evidence was alarming.

A simple request for an explanation form State’s witnesses to the jury of how they could be convicted because of no evidence would have been in order. And, the use of Mike Riddle, a fingerprint analyst for the Madison, WI Crime Laboratory, as a defense witness was amazing.

Riddle testified that no Dassey fingerprints were recovered from anywhere in the area, including the victim’s Toyota RAV4. When cross‑examined by Wisconsin Assistant Attorney General, Tom Fallon, about the lack of evidence on the weapon the State claimed was the murder weapon, Riddle stated that the lack of evidence was not surprising leaving the jury with more claims that the lack of evidence was really evidence. The consistency of the State witnesses on this theme is suspicious,

When Brendan Dassey took the witness stand Fallon bravely stood toe to toe with the sixteen‑year‑old special education student. Fallon asked Dassey why would his cousin, Kayla Avery, tell investigators of his seeing body parts during a December, 2005 interview.

The defense did not object.

Kayla had denied making those statements. An intern counselor who testified about her involvement in the December 2005 did not testify that Kayla made those statements. Calumet County Investigator Mark Wiegert testified that Kayla made those statements during a followup interview on 07 March 2006. And, this was after the 27 February interrogation of Dassey when Wiegert and Wisconsin Special Agent Tom Fassbender repeatedly told Dassey that Dassey saw body parts in the bonfire. Yet, the defense sat mute.

Fallon is a study in introducing false information at trial.

Mark Fremgen and Ray Edelstein, put their expert witness Dr. Robert Gordon on the stand. Dr. Gordon was only qualified to testify on suggestibility. He was not the expert that the defense needed. He did not appear to have experience testifying at an adversarial criminal trial. He was not prepared to detail the techniques investigators used to mold the confessions to their ends.

Special Prosecutor Ken Kratz repeated the claim that Dassey told his cousin about body parts in December, 2005. The defense did not challenge that claim.

Toward the end of his testimony, Dr. Gordon spoke of a document. Special Prosecutor Ken Kratz wanted to know why he hadn’t seen the document. Dr. Gordon said he submitted it to the defense. Kratz used the opportunity to throw a fit and demand that Fremgen provide the document. Mark Fremgen admitted that he had the document but apparently had not submitted it to the State. He said he would do so.

Later, in the presence of the jury, Kratz brought up the subject and Fremgen replied he had supplied the document. The Kratz stated that Fremgen was lucky because now Kratz would not file a complaint with the Attorney Regulation Board. This would have been an excellent time to demand a mistrial for making such an inflammatory statement in the presence of the jury. But, the defense behaved like whipped puppies. No defense attorney should allow someone like Kratz to bully them.

Things got worse. Kratz made a last minute demand for rebuttal witnesses. He named Dr. James Armentrout and James Buckley. Fremgen didn’t challenge this request and ask for a vetting procedure. Buckley is the head of Reid Associates, a company that profits from teaching techniques of extracting confessions. Armentrout, a contractor at the Calumet County Courthouse, didn’t know beans about suggestibility and false confessions and suggestibility but offered an expert opinion anyway.

During closing the defense bumbled even more. Ray Edelstein gave his summation exhorting the jury not punish Brendan Dassey because of his ties to the Avery family. I was amazed listening to that argument. There was nothing about the way the State manipulated witnesses. There was nothing to point out that the “great red spot” in the Avery garage did not test positive for blood, etc. etc.

When Tom Fallon did the State’s rebuttal, he argued a different theory of the crime than was presented by Ken Kratz at the trial opening. Fallon’s version was based on the May, 2006, confession which the State argued for suppression. There were several interrogation sessions, but the State was able to convince the judge to suppress the all but one and thus hide the evidence that Dassey was unable to coherently adhere to the interrogatorâ€™s view of events.

The defense did not object.

Fallon also referred to blood rising up through cement. This was based on testimony from the intern counselor about her encounter with Kayla Avery and had no basis in evidence. This was an inflammatory statement designed to insert false information.

The defense did not object.

During his closing Fallon also denigrated a defense witness.

The defense did not object.

The prosecution team also came up with a claim of “event memory” which was claimed to be an indelible memory of a crime. This was bogus science injected at the end of the trial. If the defense used video showing how confused Dassey became when attempting to answer the interrogator’s demands, this argument would not have existed.

Performance at trial is not trivial. It requires constant attention to detail and good memory. And, as was the case here, prosecutors are not above introducing false information and undermining defense attorneys and witnesses. It is an unfortunate fact of life that prosecution and police are willing to disregard rules and facts to win a case. Defense attorneys must be vigilant before and during trial.

In the trial of Brendan Dassey, the prosecution was effective in its use of video and audio evidence. The defense was not. The prosecution was effective in its claim that the lack of evidence proved the crime. The defense was not effective in showing the jurors what such a claim meant for them personally. That is anyone one of the jurors could be convicted on the same argument. The defense did very little in countering the State claim of nineteen points which was supposed to prove the validity of the confessions.

Deconstruction to the confessions was vital for this case. None of the defense attorneys bothered. Deconstruction is tedious and time‑consuming. Defense attorneys need to be more willing to provide this effort and less willing to give up simply because a confession was extracted.

Invalid confessions are common. There does not appear to be any mechanism in interrogation techniques to test for validity. In the Dassey confessions, the interrogators were insistent that Dassey produce their answers, even to the point of telling him what they wanted. When they got conflicting responses, they ignored them and pushed harder for their own answers.

Defense attorneys need to stop the likes of Ken Kratz bullying them in the courtroom. Defense attorneys need to stop the likes of Tom Fallon from introducing false information at trial. Defense attorneys need to be willing to pay attention to defending their clients from the very start of the process.