In a series of prior posts, I explored the various interrogations of Brendan Dassey in 2005 and 2006. Then sixteen, Dassey was interrogated numerous times across a several-month span about his involvement in the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s case. 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.
Dassey’s confession aside, I began more recently to explore the concerning pretrial representation Dassey received from his appointed lawyer, Len Kachinksy. During a five-month span representing Dassey from March to August of 2006, Kachinsky waived critical issues, spoke to the media more than he spoke to his client, and hired an investigator to interrogate his own client—among other blunders. Kachinsky’s performance is enough to elicit any number of emotions, ranging from general disappointment to downright anger. Indeed, Kachinsky himself received that full range of responses to his behavior via nasty letters, angry phone calls, and even death threats.
The public outcry condemning Kachinsky’s representation of Dassey hides a powerful and unfortunate reality: Kachinsky’s representation was constitutionally adequate pursuant to Strickland v. Washington, the Sixth Amendment’s measuring stick for attorney performance. As teachers, we often assume that satisfying a constitutional standard is equivalent to competence. But that’s simply not true in the “effective assistance” arena. The constitutional standard is well below an acceptable minimum level of attorney competence.
Short of calls to revise or overrule Strickland, which for decades have gone unanswered, the question shifts to whether there is another way to address Strickland’s low bar. The answer is yes and law schools are particularly well situated to raise expectations for the defense bar. At present, Strickland is not sufficiently representative of what the profession—in practice—demands of professional well-regarded criminal defense attorneys. Law schools must develop curriculum that is not tightly calibrated to Stickland but, rather, reflects true standards of acceptable competence for defense attorneys.
Where we left off…
[Catch up by reading my last post in this series here.]
Three main events highlight the disturbing representation Kachinsky provided to Dassey during that critical five month pretrial period. First, Kachinsky hired an investigator named Michael O’Kelly who further interrogated Dassey in an effort to get him to confess new details that Kachinsky could use to force Dassey into a plea agreement. Second, Kachinsky waived Dassey’s Miranda arguments during a hearing on Kachinsky’s motion to suppress—a motion that cited just one case. Finally, Kachinsky permitted law enforcement to interrogate Dassey alone and without an attorney on May 13, 2006. For his professional efforts on Dassey’s behalf, Kachinsky was removed from the case on August 25, 2006, and the State Public Defender decertified him from the Class A felony appointment list.
How we evaluate attorney performance
Following his April 25, 2007, homicide conviction, Dassey was sentenced on August 2 to life in prison for which he will be eligible for parole in 2048. Dassey filed a post-conviction motion in state trial court on August 25, 2009, requesting a new suppression hearing and a new trial on the basis of ineffective assistance of counsel. The postconviction claims centered primarily on Kachinsky’s conduct, including his poor performance at the suppression hearing. In particular, Dassey argued that Kachinsky’s collective actions constituted disloyalty to Dassey. That claim is and was a slam dunk…right? Not quite. On December 13, 2010, the postconviction court would remarkably hold that Kachinksy provided Dassey with constitutionally competent representation. The Wisconsin Court of Appeals on January 30, 2013 would later take just six paragraphs of an unpublished opinion to reject Dassey’s appellate claim that Kachinsky provided ineffective defense representation.
Understanding why Kachinsky’s professional behavior was a judicial nonevent requires understanding one of the worst Supreme Court decisions for the defense bar: Strickland v. Washington. Decided in 1984, the Supreme Court for the first time decided who is an “effective” criminal defense attorney for purposes of the Sixth Amendment. The Strickland Court held that a defendant receives constitutionally unacceptable representation when (1) counsel’s representation falls below an objective standard of reasonableness that (2) prejudiced the defense, and therefore had an effect on the judgment. As the years since Strickland have overwhelmingly demonstrated, the bar set by the Supreme Court for defense lawyering is low.
That lower courts do not expect much from defense attorneys is unsurprising given that Strickland itself approved of alarming defense attorney behavior. Indeed, the lawyer in Strickland, William Tunkey, failed his client, David Washington, in several ways. Washington, who was facing the death penalty, embarked on a ten-day crime spree in 1976 that included three murders. At the time he represented Washington, Tunkey was a private attorney with considerable criminal experience. But things went south very early in their professional relationship after Washington ignored Tunkey’s advice not to speak with police and confessed to two of the killings. Although Tunkey initially filed several suppression motions on behalf of Washington, he abandoned those motions in dramatic fashion on the day Washington changed his pleas to guilty. Similar to Kachinsky, Tunkey expressly waived some of Washington’s best issues, telling the court that, as to his Miranda-related waiver arguments, “it is my considered judgment that there was a free and voluntary waiver of counsel in each case. There was a waiver of his various constitutional rights to remain silent, to the assistance of counsel, et cetera.”
By the time of Washington’s sentencing hearing just five days later, Tunkey would admit, “I had a hopeless feeling. There is no question about that.” He added, “I don’t know that I felt that there was anything which I could do which was going to save David Washington from his fate.” As a result of those emotions, Tunkey did not request a continuance from the court to give him additional time to prepare. He also did not request a presentence report and otherwise did little to save Washington’s life. He submitted a sentencing memorandum that spanned just five pages, cited no cases, and conceded the applicability of two aggravating circumstances. Tunkey then did not put on a case at the sentencing hearing itself, choosing instead to rely on his sentencing memorandum and testimony from Washington at the change of plea hearing. As the sentencing process unfolded, Tunkey never had Washington—who had no prior criminal record—examined by a psychologist or psychiatrist. At a hearing on Washington’s subsequent federal habeas petition, Tunkey testified that his decision not to seek a presentence report was a “lack of forethought” and was not “a matter of trial strategy.”
Yet the Supreme Court upheld Tunkey’s abysmal representation of Washington as constitutionally adequate. Writing for a majority of the Court, Justice O’Connor in Strickland v. Washington announced a new two-part standard for judging the reasonableness of a defense’s attorney’s representation. First, said the Court, a defendant must show that counsel’s performance was “deficient.” That, in turn, “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Citing American Bar Association standards as an example, the Court indicated that “prevailing professional norms” can help to evaluate when counsel falls below an objective performance threshold. Second, the defendant must provide “prejudice.” Prejudice, the Court wrote, requires a defendant to demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
After explaining the new law, the Court turned its attention to applying the two-part standard to Tunkey’s representation of Washington. Justice O’Connor for the majority brazenly commented that it “is not difficult in this case” to conclude “that the conduct of respondent’s counsel at and before respondent’s sentencing proceeding cannot be found unreasonable.” As to the first prong, the Strickland Court held that Tunkey’s performance was objectively reasonable. Although it conceded that Tunkey felt “hopeless,” Justice O’Connor wrote that “nothing in the record indicates . . . that counsel’s sense of hopelessness distorted his professional judgment.”
“[T]he lack of merit of [Washington’s] claim is even more stark,” wrote the Court about the prejudice prong. Any evidence that Tunkey failed to present at the sentencing hearing, the Court reasoned, “would barely have altered the sentencing profile presented to the sentencing judge.” But more to the point, said the Court, the evidence of Washington’s guilt was so overwhelming that no level of attorney incompetence could create the requisite prejudice.
The enabling power of Strickland
The parallels between William Tunkey and Len Kachinsky firmly illustrate that the passage of time has done little to strengthen the Sixth Amendment as a tool for promoting adequate defense attorney behavior. Tunkey, you’ll recall, admitted to feeling “hopeless” about David Washington’s case and likewise admitted that much of his efforts did not qualify as sound trial strategy. Whereas Tunkey’s expression of hopelessness was both overt and open, Kachinsky’s display of hopelessness was more tacit. Kachinsky’s entire strategy, after all, was designed to have Dassey plead guilty and assist the prosecution. Though perhaps more veiled, Kachinsky’s representation was just as damaging to Dassey’s case as Tunkey’s decision-making was to Washington.
A handful of other strikingly similar parallels between the two attorneys exist. Consider: both Tunkey and Kachinsky conceded viable Miranda-related issues. And, neither Tunkey nor Kachinsky secured subject-specific experts to assist their clients. In Tunkey’s case, he did not seek a psychiatric or psychological evaluation for David Washingon. To the contrary, Tunkey self-assessed Washington as “sane.” But in his post-conviction hearing testimony, he admitted, “Maybe I should have because [Washington] said he had been out of work for six months and he had impressed me as being sincerely concerned for the welfare of his wife and child.” He also commented, “I did not think at the time to go ahead and utilize psychiatric or psychological experts . . . I did not think of that.”
Like Tunkey, Kachinsky did not think to hire an expert to assist in evaluating the several law enforcement interrogations of Dassey. During his testimony at Dassey’s post-conviction hearing, Kachinsky plainly and troublingly admitted that he was not familiar with using an expert in the context of, for example, Miranda waiver. In response to questioning about whether he was familiar with the practice of defense attorneys hiring psychologists to assist with whether a client “could knowingly and intelligently waive his Miranda warnings,” Kachinsky bluntly replied, “I haven’t seen that.”
Had Kachinsky hired an expert—something Dassey’s new defense team did in preparation for the post-conviction hearing—he would have gained some powerful insights. Dr. Richard Leo, an expert in interrogation methods, testified, for example, that several of the interrogators’ statements to Dassey on March 1 amounted to impermissible promises of leniency. Dr. Leo, for instance, took issue with repeated assurances to Dassey that, if he is honest with investigators, then he would receive a more positive outcome. Dr. Leo pointed to statements like, “No matter what you did, we can work through that,” and “You know, honesty’s the only thing that’ll set you free; right?” Dr. Leo characterized those and the several similar statements as suggesting “that there will be specific negative consequences, general negative consequences, if he continues to say things that they don’t regard as honest.” Meanwhile, Dr. Leo commented, that if Dassey provides answers the investigators deem as appropriate, “They will stand behind him. He’ll get a better deal. And they even say, ‘The truth will set you free.’ ”
Those parallels aside, Kachinsky’s performance was worse than was Tunkey’s. Kachinsky, you remember, hired an expert to interrogate his client for the sole purpose of seeking the client’s cooperation with the state. Tunkey’s ineffectiveness never approached that level of ineptitude.
Charting a path forward
Just like the Supreme Court approved of William Tunkey’s conduct in Strickland, so too did the state judiciary approve of Len Kachinsky’s pretrial representation of Dassey. That’s not particularly surprising given that Strickland, since the time of its publication, has been relied on by courts nationwide to uphold as constitutional criminal defense attorney conduct that includes, remarkably, sleeping through portions of a trial, remaining completely silent during the proceedings, mental illness, alcohol use, and drug use. With those results in mind, Strickland has steadily endured complaints from a variety of sources, including the media, the bar, and an assortment of scholars.
That criticism has done little to effectuate meaningful change. Strickland remains the law governing claims of ineffective assistance of counsel. It therefore likewise remains useless as a tool for improving defense attorney performance just as it is likewise worthless for holding bad defense lawyers accountable. Those attributes were brightly on display when the judiciary evaluated—and approved of—Len Kachinsky’s representation of Brendan Dassey. In many ways, that endorsement is merely another chapter in a long and sad book of intolerable defense representation that Strickland views as constitutionally acceptable.
We’ll look at that story—and what law students should and should not learn from it—in more depth in my next post.
"The Strickland Court held that a defendant receives constitutionally unacceptable representation when (1) counsel’s representation falls below an objective standard of reasonableness that (2) prejudiced the defense, and therefore had an effect on the judgment. "
If memory serves, the Rehnquist courts "innovation" was greater emphasis the second prong, which is not to say that the first prong was satisfied, IMHO, in the cases described above. With respect to coerced confessions, etc., the emphasis on "prejudice" demonstrated by a hypothetical "an effect on the judgment" has been a very tough standard, no?
The standards amounts, in perhaps an overly simplistic iteration, to a free pass for the conviction to be upheld if sufficient evidence of guilt was adduced independent of the error to justify the verdict. Boiled down to its essentials, so long as there was sufficient evidence of guilt, "who cares?," the courts seemed to be asking. No more defendants walking on "technicalities."
The question today therefore seems to me to be whether the courts should revise that analysis, with respect to ineffective assistance, and all the other errors that are so rife in the criminal justice system.
With regard to the treatment of that young man, watching "Making a Murderer" should have made any reasonable person cringe. But, perhaps we should add an issue: were the actors involved all behaving in a way that suggested that the purpose of the going after the boy so hard was to "get" someone else? Should we tolerate so much "leaning on" people to "get" others?
And, of course, we remember that, Wiki errors excepted:
On August 12, 2016, Avery's nephew Brendan Dassey, who was also found guilty, had his conviction overturned by a federal judge on the grounds that he was unconstitutionally coerced by the police into confessing to the murder, and this was the only substantial evidence in his case.[11] On November 14, 2016, Federal Judge William Duffin ordered Dassey's release from prison within 90 days, if Wisconsin prosecutors do not move forward with a retrial.[12] On November 17, the U.S. Court of Appeals for the Seventh Circuit blocked Dassey's release while the appeal is being heard.[13] A three-judge panel from the 7th Circuit affirmed the Judge Duffin decision to release Dassey and stated that Dassey should be freed unless the state chooses to retry him.[14] In December 2017, a panel of seven judges of the United States Court of Appeals for the Seventh Circuit ruled in favor of upholding the original conviction in a split vote of 4 to 3, ruling that police had properly obtained Dassey's confession.[15] In June 2018, the U.S. Supreme Court rejected a motion to hear arguments to overturn the Appeals Court ruling reinstating Dassey's conviction.[1
Posted by: anon | August 30, 2018 at 01:05 PM
It's real simple for you newbie lawyers and old attorneys who do closings and PI work. The PO PO don't want to talk to INNOCENT people. Massive waste of time and resources. If the PO PO wants to talk to your client, it's bad news. Nothing they say will get them off if the cops think you guy is involved.
Posted by: Scott Pruitt Edndowed Chair in Environmental Justice | August 30, 2018 at 02:05 PM
….even if the you think a statement is mitigation and you client is found guilty, the State will use prior statements as aggravation at a sentencing hearing. They will argue is demonstrates a lack of remorse and as evidence of dishonesty.
Posted by: Scott Pruitt Edndowed Chair in Environmental Justice | September 01, 2018 at 07:19 PM