In a series of seven prior posts, I explored the primary reason—aggressive use (and misuse) of interrogation methods—for the 2007 murder conviction of Wisconsin teen Brendan Dassey. Dassey, now (in)famous for his role in the Netflix documentary, Making a Murderer, was interrogated several times during law enforcement’s investigation into the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s ca
His March 1 statements—including that Dassey cut Halbach’s throat—were featured in the Making a Murderer series and were the focus of Dassey’s recently denied petition for a writ of certiorari to the Supreme Court. Given the absence of physical evidence tying Dassey to the killing, many scholars, myself included, think Dassey’s confession was false.
That Dassey’s confession was the primary reason for his conviction is uncontested. But there is one other major reason for Dassey’s conviction: bad lawyering. In this post, we consider the representation provided by Len Kachinsky during five months of representing Dassey—from March 2006 until his removal from the case later that August. Speaking from my own experience, Kachinsky’s decision-making is a powerful teaching illustration for what not to do as a criminal defense lawyer. I have found that exploring Kachinsky’s mistakes with students is a very productive way to help them see how criminal procedure is actually practiced alongside how criminal procedure protections depend almost entirely on strategic thinking by lawyers.
Where we left off…
[Catch up by reading my last post in this series here.]
As the March 1, 2006, interrogation concluded, Tom Fassbender, one of Dassey’s primary interrogators, told Dassey, “because of what you told us, we’re gonna have to arrest you. . . . And so you’re not gonna be able to go home tonight.” Dassey asked if he would be in jail for just one day. Mark Wiegert, the other of Dassey’s two interrogators, said he did not know. Dassey was then detained and charged with first-degree intentional homicide, second-degree sexual assault, and mutilation of a corpse.
Setting the table
Len Kachinsky was appointed to represent Dassey on March 7, 2006. It is possible, in the annals of legal history, that another defendant received comparatively worse representation than did Dassey, though it seems unlikely. Three main events underscore the truly horrific job Kachinsky did for Dassey: (1) Kachinsky’s reliance on an outside “expert” who sought to induce a confession from Dassey; (2) Kachinsky’s concession as part of his motion to suppress that Dassey was not in custody for purposes of Miranda during any of Dassey’s numerous interrogations; and (3) Kachinsky’s decision to permit law enforcement to interrogate Dassey outside of Kachinsky’s presence on May 13, 2006.
Kachinsky did not meet with Dassey until March 10—three days after his appointment—though he did find time to speak with the media. In total, over roughly the first three weeks of representing Dassey, Kachinsky would spend at least ten hours communicating with the press but just one hour with his client. In one of several interviews Kachinsky gave before even meeting Dassey or reviewing the interrogation tapes, Kachinsky was quoted as saying, “We have a 16-year-old who, while morally and legally responsible, was heavily influenced by someone that can only be described as something close to evil incarnate.” In another interview, he thought he was “stating the obvious” by indicating that Dassey would be convicted based on the content of his confession. Indeed, at the time Kachinsky made those statements, he had only seen the criminal complaint.
After finally meeting with Dassey for roughly an hour on March 10, Kachinsky promptly gave yet another interview in which he said that Dassey was “sad, remorseful, and overwhelmed by the charges against him.” Although Dassey during their meeting asserted his innocence, Kachinsky for the next several days did no work on Dassey’s case. He instead talked to local reporters, Court TV, and Dateline NBC.
By March 25, Kachinsky had listened to some of the March 1 interrogation. Without the benefit of consulting an interrogation expert, he characterized the methods employed by investigators as “pretty standard and quite legitimate.” In Kachinsky’s opinion, which he provided during his testimony at a 2010 hearing on Dassey’s post-conviction relief motion, the investigators on February 27 and March 1 took “great pains to try to make the details in that interview come out from – from Brendan and no something that was suggested by them.”
In any event, Kachinsky next saw Dassey in person on April 3. The pair met together for roughly an hour and fifteen minutes, during which time Dassey made a second request to take a polygraph exam. Apparently in an effort to fulfill Dassey’s request, Kachinsky googled polygraph examiners and contacted a man named Michael O’Kelly without looking into his background. [Note: you can draw your own conclusions after doing some background work by checking here, here, here, here, and here.] Kachinsky then wrote a letter to Dassey indicating that he had identified a polygraph examiner, which included the following: “But, once again, the videotape is pretty convincing that you were being truthful on March 1. You need to stop thinking about who benefits from what you say and just think about what really happened.”
On April 16, O’Kelly performed a polygraph examination on Dassey. The results were inconclusive, though O’Kelly relayed to Kachinsky that he thought Dassey “was a kid without a conscience.” Despite O’Kelly’s view of Dassey and despite Dassey’s claims of innocence, Kachinsky elected to hire him as his investigator, and the pair worked together to get Dassey to cooperate with the prosecution. Kachinsky filed a motion to suppress on Dassey’s behalf on April 19.
To bolster their efforts to have Dassey cooperate with the prosecution, Kachinsky decided to have O’Kelly re-interview Dassey. Kachinsky’s goal, he hoped, was to have O’Kelly develop information that would be helpful to the prosecution. Kachinsky thought that doing so would both make clear to Dassey that a jury would find him guilty and, as a result, pleading guilty was the only appropriate path forward. Kachinsky set May 12 as the date for O’Kelly to interview Dassey. Kachinsky also thought Dassey would be particularly vulnerable on that date because he anticipated losing the motion to suppress that same day.
The May 4 suppression hearing
As Kachinsky predicted, the court denied his suppression motion. The accuracy of Kachinsky’s prediction is hardly noteworthy given that his filed motion cited just one case and argued only that Dassey’s statements on March 1 were involuntary. He made no Miranda-related arguments. He made things worse (if that’s possible) during the May 4 suppression hearing by remarkably conceding that Dassey was not in custody either during the Feb. 27 stationhouse interrogation or the March 1 stationhouse interrogation. (The Nov. 6, 2006 roadside interrogation and the other two Feb. 27 interrogations all went unmentioned.) Kachinksy specifically told the court:
[B]ased on the review of those [March 1] tapes, uh, and the transcripts, and also consultations with my client, investigator, and other witnesses, uh, the question of whether or not this is a custodial interrogation is not, uh, at issue in this case. It's not a custodial, uh, interrogation, although, the, uh, giving of the rights, or failure to do the same during portions of the, uh, statements, would be relevant in determining voluntariness.
The court replied, “So -- so, Miranda warnings are not an issue, or Mirandizing is not an issue here, neither is the -- the custodial or noncustodial nature of the-- of the -- of the, uh, interviews. All right.” It took less than one page of hearing transcript for Kachinsky to ruin what in all likelihood were Dassey’s best suppression and then, if needed, appellate arguments.
O’Kelly’s interrogation of Dassey
O’Kelly sent an email to Kachinsky on May 9 condemning the Avery family. He wrote in part that the Averys “are criminals” and that he could “find no good in any member.” As for the upcoming Dassey interview, he emailed Kachinsky to advise him not to attend. Kachinsky replied that he would not attend.
Then, on May 12, the same day the trial court denied Kachinsky’s motion to suppress, O’Kelly videotaped an interview of Dassey at the detention center where Dassey was being held. O’Kelly began by presenting Dassey with a variety of pictures, images, and props. O’Kelly, for example, showed Dassey photos of Halbach, the Avery property, a photo of Halbach’s church, and a missing person poster for Halbach—among others. He then told Dassey that Dassey’s polygraph results indicated “deception,” though Dassey was confused and replied, “That I passed it?” Once Dassey realized that he failed, O’Kelly confronted Dassey and said, “The two things I don’t know is, are you sorry for what you did and will you promise not to do it again. Those are the two things I don’t know. I know everything else that I need to about this case except for those two things. . . . Are you sorry?”
Dassey maintained his innocence for the first portion of the interview. But O’Kelly continued to press him. He threatened Dassey that, unless he was sorry, he would spend the rest of his life in prison. Dassey’s story began to evolve into a story similar to what he told investigators on March 1, though portions of the timeline Dassey provided on March 1 had changed. Regardless, at the interview’s conclusion, O’Kelly believed that Dassey was “on board with cooperating in the Avery prosecution and, ultimately, entering a plea agreement.” And although Kachinsky never watched O’Kelly’s interview, he permitted O’Kelly to speak with investigators about what Dassey said during their private interview.
Wiegert and Fassbender interrogate Dassey. Again.
After the O’Kelly interview, Kachinsky scheduled a “free interview” for the state on May 13. The strategy, according to Kachinsky, was for Dassey to provide missing evidence that would help with the Avery prosecution. With no immunity or other consideration discussed, Kachinsky specifically arranged for the state to interrogate Dassey again—without Kachinsky present. Kachinsky moreover had no discussion with the prosecution before the interrogation “about the admissibility or future use” of Dassey’s statement. And in his place, Kachinsky left O’Kelly to supervise Dassey’s interrogation from a separate room, although Kachinksy told O’Kelly not to interrupt the interrogation unless Dassey asked for it to stop.
Wiegert and Fassbender again led the May 13 interrogation, which they began by advising Dassey of his Miranda warnings. The pair again sought to have Dassey tell them what happened to Halbach on October 31, 2005. As Dassey relayed the details, many of them differed from the story he told on March 1. He, for example, changed his story on a number of key issues, including about whether he cut Halbach’s hair, shot her, cut her throat, and seeing Halbach’s personal items in a burn barrel—among many other details.
Wiegert and Fassbender grew frustrated. They told him they would leave the room if Dassey would not tell the truth. When that threat proved unproductive, Wiegert took a different approach. Wiegert told Dassey that his mother would be upset to learn that Dassey was being untruthful with him. He specifically commented, “I haven’t called her yet to tell her that you lied to me, but I will do that, what do you think she’s gonna say to you? She’s gonna be mad.” Knowing that jail calls were recorded, Wiegert then suggested to Dassey that he call his mother so she could hear the truth directly from him. Dassey agreed, though Kachinsky knew nothing about it.
When Dassey called his mother, Barbara Janda, from jail later that day, their call was indeed recorded. Dassey told Janda at the outset that “Mark & Fassbender are gonna talk to you.” He proceeded to tell her “that Mike guy came up here and talk to me about my results.” In discussing what “Me & Steven did that day,” he said, “Mike & Mark & Matt came up one day and took another interview with me and said because they think I was lying but so, they said if I come out with it that I would have to go to jail for 90 years.” But, he added, “if I come out with it I would probably get I dunno about like 20 or less.” Janda asked later, “Was your attorney there when Mark and those guys were?” When Dassey replied, “No,” Janda advised him to stop talking and added, “They are putting you in places where you’re not.” She added, “what your attorney should be doing is putting an order on all of them that they cannot interfere with you or your family members unless your attorney is present.”
Kachinsky is removed
Months later, on August 14, 2006, the State Public Defender’s office sent Kachinsky a letter. It read, in part, as follows:
[Director of the Assigned Counsel Division, Deborah Smith] is recommending that you be decertified from the Class A felony appointment list and the Trial 3, Class B-D felony list. Her recommendation is based on your failure to provide competent representation in the Brendan Dassey case. You have confirmed to her that you allowed law enforcement to interview your client on May 13, 2006 in your absence. You’ve confirmed to her that you were not present at the interview on May 13, 2006 because you had to attend army reserve training that weekend. It is difficult to imagine a situation when it would be appropriate to allow a client in a serious felony case to give a statement in the attorney’s absence. To allow such an interview in this case is indefensible.
A copy of the letter was also provided to the trial judge, Jerome Fox, and Kachinsky filed a motion to withdraw as counsel. Judge Fox conducted a hearing on Kachinsky’s motion on August 25. Kachinsky’s “failure to be present while his client gave a statement to investigators,” said the court at the hearing, “constituted deficient performance on Attorney Kachinsky’s part.” The court therefore granted Kachinsky’s motion and appointed two public defenders as successor counsel. Relying on a combination of witnesses, including Dassey himself and expert testimony, the defense argued at Dassey’s trial that his March 1 statements simply were not true. Following a nine day trial, it took the jury five-and-a-half hours of deliberation to find Dassey guilty on all counts. He was sentenced to life in prison for first-degree intentional homicide, not eligible for release to extended supervision until November 1, 2048.
It was against this collective backdrop that the judiciary would consider Dassey’s post-conviction claim that Kachinsky’s representation violated the Sixth Amendment. We consider the evolution of that claim in my next post.
No lawyer should talk to the media. It just causes the Prosecution to dig in harder. Judges don't want bad press either. Look at that Judge in Ca that lost his job over that rapist. I know very effective attorneys when they have a "heater" case up, they send reporters and the media on a wild goose chase...ie advance and reset court dates at the last second or send in another attorney to "get a date." Delay and Deny. The older a file gets, the less interest it generates. Manipulate the system. Get the media out of there. There is always the next more interesting, new and improved heater case.
Also, effective attorneys tell clients to talk to nobody about their cases...even their mother and of course, the paramour. Don't talk to cell mates. Effective attorneys never take phone calls from the jail. It costs a fortune and they are monitored.
Posted by: Scott Pruitt Edndowed Chair in Enviconmental Justice | July 16, 2018 at 10:11 PM