Across several prior posts, I have outlined how the 2007 conviction of Brendan Dassey for the murder of Teresa Halbach—part of the largest criminal investigation in Wisconsin’s history—can enhance the investigative criminal procedure classroom for law students and law professors alike. I have argued there is much for law students (and even lawyers) to learn from law enforcement’s numerous interrogations of Dassey alongside the pretrial defense representation he received. On that latter topic, I have focused on Len Kachinsky’s representation of Dassey during a five month period from March through August of 2006.
During that period, Kachinsky hired a defense investigator who would end up also interrogating Dassey in an effort to elicit a further confession from him in order to aid law enforcement. Kachinksy would also waive Dassey’s (extremely viable) Miranda arguments during a hearing on Kachinksy’s motion to suppress. And, to top the representation off, Kachinsky invited law enforcement to interrogate Dassey without representation prior to trial.
That remarkable behavior is constitutional pursuant to the Supreme Court’s 1984 decision in Strickland v. Washington, which sets an extremely low bar for attorney performance under the Sixth Amendment. Strickland poses two distinct problems: (1) the low standard itself, and (2) lower courts’ interpretation of that standard to further lower the bar sets. In my last post, I explored that first problem—the standard—and today I’ll explore how the lower courts interpreted Strickland to reject his claim that Kachinksy provided unconstitutional representation. Both problems point in the same direction, which is for law schools to demand more from students. At the end of this post, I’ll offer one concrete suggestion for how schools might do exactly that.
Dassey’s contribution to the Strickland legacy
[Catch up by reading my last post in this series here.]
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 under Strickland. As you may recall, Strickland holds that counsel is ineffective 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.
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 and, accordingly, amounted to a conflict of interest that relieved him of proving Strickland prejudice.
Following a five-day hearing that took place between January 15-22, 2010, the trial court denied Dassey’s requested relief on December 13, 2010. In its written opinion, the court relied on how much time had passed between Kachinsky’s representation and the start of Dassey’s trial. In particular, said the court, “[b]y the time a jury was selected and Dassey was tried Kachinsky was long gone from the case.” Moreover, the court reasoned, the state used very little of the evidence collected from O’Kelly’s May 12 interview and the interrogation of Dassey by Wiegert and Fassbender the next day. The court offered the following additional rationale:
Nothing from O’Kelley’s May 12th interview in which he had Dassey incriminate himself found its way into the trial record. Other than a brief audio clip of a portion of a phone conversation between Dassey and his mother, which the State played without objection in its cross-examination of the defendant, and several questions asked on the cross-examination of Dr. Robert Gordon, nothing from May 13th was introduced at trial. And, the State made little more than passing reference to the May 13th phone call in its closing to the jury.
The court likewise rejected Dassey’s argument that Kachinsky provided deficient performance at the May 4, 2006, suppression hearing. Although Dassey specifically highlighted Kachinsky’s half-hearted cross-examination of the state’s witnesses alongside his concession of viable Miranda issues, the court remarkably wrote that Kachinsky “adequately represented Dassey’s interests and cannot be said to have provided ineffective assistance of counsel.”
Dassey appealed the rejection of his state-level post-conviction arguments to the Wisconsin court of appeals. In his brief to that court, filed on December 1, 2011, Dassey renewed his contention that Kachinsky provided constitutionally inept representation by trying to force Dassey to plead guilty. He asserted that Kachinsky’s pretrial representation amounted to a conflict of interest, once more pointing to Michael O’Kelly’s May 12 interrogation of Dassey and Wiegert and Fassbender’s further interrogation the next day. Dassey likewise again highlighted Kachinsky’s “curious decisions” at the suppression hearing, including his concession that Dassey was not in custody either on February 27 or March 1. Dassey also, in direct contrast to the trial court’s characterization, highlighted the impact of Dassey’s May 13 phone call to his mother, noting “the State played the climactic moment of the May 13 telephone call – when Brendan told his mother that Steven made him do ‘some of it’ – during its cross-examination of Brendan himself.” After emphasizing that the “May 13 telephone call would never have come into existence but for the disloyal actions of Attorney Kachinsky,” Dassey summarized his arguments as follows:
These actions cannot be understood as the efforts of loyal counsel. They are the actions of an attorney who “abandons [his] duty of loyalty and joins the prosecution in an effort to obtain a conviction” - a conviction that, in this case, would have taken the form of a guilty plea.
Calling the trial court’s opinion “a thorough, soundly reasoned decision,” the Wisconsin Court of Appeals on January 30, 2013 took just six paragraphs of an unpublished opinion to reject Dassey’s claim that Kachinsky provided ineffective defense representation. In doing so, the per curiam court faulted Dassey for drawing, “no viable link between Kachinsky’s actions and any demonstrable detriment to him.” Moreover, the court reasoned, “Kachinsky was long gone before Dassey’s trial or sentencing.”
The Strickland analysis proffered by the Wisconsin state and appellate courts is deeply concerning for several reasons. To begin with, considering first Strickland’s performance prong, both courts confusingly rely on the fact that Kachinsky “was long gone” at the time of Dassey’s trial and sentencing. It is unclear, however, why the mere passage of time operates to remedy Kachinsky’s devastating and far-reaching errors. After all, whether he was dismissed before, during, or after Dassey’s trial, there is no changing that Kachinsky’s decision to waive Dassey’s Miranda-related arguments forever altered Dassey’s available legal strategies. As Justice Marshall aptly put it in his Strickland dissent:
[I]t is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government's evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel.
Moreover, despite the Supreme Court’s clear guidance to use “prevailing professional norms” to evaluate attorney performance, neither the Wisconsin trial court nor appellate court rely on—or even cite—the American Bar Association standards governing attorney conflict. Those standards, according to Strickland, serve to assist in the evaluation of an attorney’s maintenance of the duty of loyalty, the duty to avoid conflicts, the duty to advocate the defendant’s cause —among others.
The ABA Standards themselves caution that lawyers should not make statements to the media that are substantially likely to prejudice the case. They likewise prohibit statements by attorneys in a criminal matter that unnecessarily heighten public condemnation of a defendant. Those standards each clearly reach and prohibit several of Kachinsky’s pretrial comments, including that Dassey was “morally and legally responsible” and that he was “stating the obvious” by concluding that Dassey’s confession would lead to a conviction. The Wisconsin state and appellate courts’ failure to address ABA standards that directly address and prohibit Kachinsky’s conduct serves to further highlight the overwhelmingly deficient analysis provided by those courts.
Finally, by focusing on the fact that the state relied on very little of Michael O’Kelly’s interrogation at trial, both courts dramatically underestimate O’Kelly’s impact on Dassey’s case more broadly. The point is not that certain evidence obtained by O’Kelly was—or was not—used by the state. Rather, the point is that Dassey’s most important advocate hired an investigator to interrogate and investigate Dassey himself, rather than holistically investigate the case on Dassey’s behalf. The Wisconsin state and appellate courts’ characterizations of that behavior as constitutional is, simply stated, discouraging.
A brief consideration of Strickland’s prejudice prong uncovers still more concerning problems. As noted, the prejudice portion of Strickland’s test requires proof that trial counsel’s errors deprived the defendant of a fair trial; that is, “a trial whose result is unreliable.” Lower courts have interpreted that language to mean, essentially, that no claim of ineffective assistance of counsel can succeed where evidence of the defendant’s guilt is overwhelming. The case against Dassey was hardly “overwhelming.” Although the trial court acknowledged that Dassey’s March 1 confession was a “pivotal” piece of evidence, it nonetheless somehow concluded that “the quality and quantity of evidence against Dassey is such that there is no reasonable probability that the proceeding would have turned out differently.” Given the absence of physical evidence tying Dassey to Halbach’s killing, it is hard to defend—or even understand—the court’s position.
The concrete lesson for law schools
At best, Strickland captures only the most extreme defense attorney behavior. Law schools must therefore make a specific curricular change: bring Strickland v. Washington into the investigative criminal procedure classroom. Better yet, make it the first case students read in that course. Teaching a deficient standard may seem counter-intuitive but Strickland illustrates for students how the Sixth Amendment fails to incentivize professional improvement. Stated differently, there is no way a competent attorney could or should aspire to the Strickland standard. In my experience, students after learning Strickland are more deeply committed to becoming a good lawyer.
Although Strickland is a major point of emphasis in the adjudicative criminal procedure course, the investigative criminal procedure courses often omit Strickland. That considerable omission does a disservice to law students nationwide given the prevalence of the investigative criminal procedure course in law school curricula alongside its presence on the bar examination. Accordingly, many students may never learn about Strickland prior to graduating. That is problematic to say the least; after all, nothing in the investigative criminal procedure course matters unless students commit to being a good lawyer. It really is that simple.
Winding down
More than nineteen million viewers in the United States watched Making a Murderer in just the first thirty-five days after its release in 2016. A video of Brendan Dassey’s March 1, 2006, confession was even included in the petition for certiorari filed on his behalf earlier this year—a rare occurrence. It is therefore difficult to overstate the popularity—and importance of Brendan Dassey’s case. The popularity, though, offers to law students an important and possibly unprecedented learning opportunity in the investigative criminal procedure classroom. I hope these posts have helped inspire you to bring some of the lessons from Dassey’s case into your own classroom.
Postscript & further reading
This is my last post in the Dassey series—well, at least until I’ve had a chance to digest the second season of Making a Murderer. Thank you for reading and thanks to so many of you for your supportive emails as I’ve told this story. I’ll be back with a future series highlighting a new defendant and how that defendant’s case might promote student learning.
Interested in learning more?
If you think you’d like to see how the varied Dassey posts all fit together, you might be interested in reading my recent piece about his case here.
If you like the idea of teaching the investigative criminal procedure course through the lens of famous defendants, you might be interested in thumbing through my forthcoming book. It relies on numerous other famous defendants for teaching criminal procedure doctrine, including OJ Simpson, John Wayne Gacy, Richard Kuklinsky, and James Holmes—among many many others.
Miss a post?
Here they are in one spot:
- Post 4: When Interview Becomes Interrogation.
- Post 5: Reid & Brendan Dassey’s Lost Defense.
- Post 6: Reid & Sequential Interrogations.
I keep posting the same variation on the theme here. No suspect, defendant, person of interest (whatever that means) has a duty to help the State make the case against them. If you are a suspect, nothing you can say will help you or persuade the sweet gentle. kindly peace officers from being persuaded that you aren't their guy or gal. Remember newbie and PI attorneys who dabble in criminal work cause they need the cash flow, Five-Oh don't talk to or interrogate innocent people.
Posted by: Brett Kavanaugh Macho Macho Man Association of America | September 30, 2018 at 05:23 PM