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Post-Conviction Motion Hearing Day 3

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Post-Conviction Motion Hearing Day 3 1 STATE OF WISCONSIN : CIRCUIT COURT : MANITOWOC COUNTY BRANCH 3 2 3 STATE OF WISCONSIN, 4 PLAINTIFF MOTION HEARING 5 DAY 3 vs. Case No. 06 CF 88 6 BRENDAN R. DASSEY 7 DEFENDANT. 8 9 DATE: JANUARY 20, 2010 10 BEFORE: HON. JEROME L. FOX 11 Circuit Court Judge 12 APPEARANCES: 13 KENNETH R. KRATZ Special Prosecutor 14 On behalf of the State of Wisconsin. 15 THOMAS FALLON Special Prosecutor 16 On behalf of the State of Wisconsin. 17 STEVEN DRIZIN Attorney at Law 18 On behalf of the defendant. 19 ROBERT J. DVORAK Attorney at Law 20 On behalf of the defendant. 21 LAURA H. NIRIDER Attorney at Law 22 On behalf of the defendant. 23 JOSHUA A. TEPFER Attorney at Law 24 On behalf of the defendant. 25 COPY i 1 THOMAS F. GERAGHTY Attorney at Law 2 On behalf of the defendant. 3 ALEX HESS Law Student 4 On behalf of the defendant. 5 Adar Crosley Law Student 6 On behalf of the defendant. 7 Brendan R. Dassey Defendant 8 Appeared in person. 9 k 'k k k k k k k 10 TRANSCRIPT OF PROCEEDINGS 11 Reported by Jennifer K. Hau, RPR 12 Official Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 2 d u 1 INDEX 2 WITNESSES PAGE 3 RICHARD A. LEO 4 Cont'd Cross-Examination by ATTORNEY FALLON 9- 75 5 Redirect Examination by ATTORNEY DRIZIN 75- 91 6 7 MARK FREMGEN 8 Direct Examination by ATTORNEY DRIZIN 92-205 9 Cross-Examination by ATTORNEY KRATZ 208-248 10 Redirect Examination by ATTORNEY DRIZIN 249-270 11 12 EXHIBITS Marked Moved Admitt< 13 17-39 7 8 14 72 206 207 15 73 206 207 16 74 207 207 17 77 206 207 18 78 206 207 19 79 206 207 20 101-204 7 8 21 215 206 207 22 216 206 207 23 217 206 207 24 218 205 207 25 219 205 207 3 1 EXHIBITS MARKED MOVED ADMITTED 2 225 206 207 3 229 205 207 4 238 158 & 159 159 5 239-305 7 8 6 340 205 207 7 366 13 8 367 143 & 144 144 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 THE COURT: Morning counsel, ladies and 2 gentlemen. This is State of Wisconsin vs. Brendan 3 Dassey. Manitowoc County Case No. 06 CF 88, Court 4 of Appeal No. 07 XX 1073. Appearances this morning. 5 Starting with prosecution. 6 ATTORNEY KRATZ: State by Ken Kratz and 7 Tom Fallon as special prosecutors. 8 ATTORNEY DRIZIN: For Mr. Dassey, Your 9 Honor, Steve Drizin; Joshua Tepfer; a law 10 student, Adar Crosley; Mr. Robert Dvorak, an 11 attorney, from Milwaukee; Mr. Thomas Geraghty, an 12 attorney from Chicago; and Laura Nirider, an 13 attorney from Chicago. 14 THE COURT: All right. 15 ATTORNEY DRIZIN: And, I'm sorry, Mr. 16 Alex Hess, a law student, hiding behind the TV 17 screen. 18 THE COURT: Anyone else? 19 ATTORNEY DRIZIN: Uh, not yet. 20 THE COURT: Okay. Mr. Fallon. 21 ATTORNEY DRIZIN: Brendan — 22 THE COURT: Oh, I'm sorry. 23 ATTORNEY DRIZIN: Brendan is also 24 present in court, Your Honor. 25 THE COURT: Court'll acknowledge the 5 1 personal presence of the — the defendant. 2 Mr. Fallon. 3 ATTORNEY FALLON: Yes. I'd like to 4 continue the cross of Dr. Leo. 5 THE COURT: Re-calling Dr. Leo? 6 ATTORNEY DRIZIN: Judge, before we call 7 Dr. Leo, there's a few housekeeping matters left 8 over from yesterday, if it's okay, I'd like to 9 deal with. It should take a minute. I hope. 10 Okay. Yesterday, you — we discussed 11 that there were some problems with Exhibit 315, 12 which is why we needed the court reporter to take 13 them down. 14 THE COURT: Right. 15 ATTORNEY DRIZIN: Urn, last night we 16 fixed those problems and renumbered the exhibits 17 so that the record will be clearer when this case 18 goes up on appeal. 19 And what I'd like to do, with counsels' 20 permission, is to just substitute pages 8, 9, 10, 21 11, and 12 of Exhibit 315, urn, which reflect the 22 correct numbering sequence, urn, of the videos. 23 ATTORNEY FALLON: Counsel, is that all 24 that's been changed? It's just the numbering 25 sequence? 6 1 ATTORNEY DRIZIN: It's just the 2 numbering. Not a single word of the clips has 3 been changed. 4 ATTORNEY FALLON: That's fine. 5 THE COURT: All right. Anything further? 6 ATTORNEY DRIZIN: Yes. Um, the — there 7 was a — there was a question about Exhibit No. 8 87, I believe, which was a summary of media 9 reports. 10 THE COURT: Correct. 11 ATTORNEY DRIZIN: Um, my recollection is 12 Your Honor accepted that for the limited purpose 13 of establishing that these facts were in the 14 public domain? 15 THE COURT: Correct. 16 ATTORNEY DRIZIN: Okay. I neglected to 17 move into evidence all of the media reports, um, 18 which would be Exhibits 101 to 204, 239 to 305, 19 and 17 to 39. These are the media reports we 20 sent to Dr. Leo, and that he reviewed in 21 connection with his opinion. 22 Um, I would ask that they be moved in 23 for the same purpose as the summary exhibit. 24 THE COURT: Let me just go over that with 25 you again; 101 to 204, 209 to 305? 7 c y ^ t/y /c r O 'u /v t T ^ \ 1 ATTORNEY DRIZIN: 101 to 204, 239 to 2 305. 3 THE COURT: And was there one after that as 4 well? 5 ATTORNEY DRIZIN: Yes, 17 to 39, Your 6 Honor. 7 THE COURT: Mr. Fallon, these are reports 8 that Dr. Leo apparently reviewed in preparing what 9 he prepared here. Do you have any objection to 10 them? 11 ATTORNEY FALLON: No. For the purpose 12 that we've discussed, that they were in the 13 public domain, no. 14 THE COURT: All right. They're 15 received. 16 ATTORNEY DRIZIN: Thank you. No 17 further — 18 THE COURT: Anything further? 19 ATTORNEY DRIZIN: Nope. 20 THE COURT: Mr. Fallon. 21 ATTORNEY FALLON: Thank you. 22 THE COURT: Dr. Leo. I'll remind you, 23 Dr. Leo, that you're still under oath. 24 THE WITNESS: Okay. 25 THE COURT: You may wish to take the 8 overcoat off. THE WITNESS: Not used to this. CONTINUED CROSS-EXAMINATION BY ATTORNEY FALLON: Q Whenever you're ready, Doctor. A Are you going to be referring to witness — uh, . Exhibit 316? I just want to get this off if we're done with that. Q No. Three-sixteen I will not be using this morning. A Okay. I'm ready. Q All right. Good morning, Doctor. A Good morning. Q When we left the record yesterday I'd asked you to — to examine the March 1 statement again; is that correct? A Yes. Q And you did have that opportunity last night? A Not to read the whole thing over. I thought what you asked me to do was try to figure out the times. The times when it started and it ended. Q That was — but the specific question that brought us to that point was is it not a fact that Mr. Dassey, in effect, confessed within the first 90 minutes of that interview on March 1? 9 )logize, then. I just didn't remember on : instructions. aen, let's move on to another piece of d discuss that as it may or may not this case. £ believe, urn, earlier we mentioned in 7 the examination that you co-authored an article 8 that was published online and will be published 9 in writing later this year entitled, 10 Police-Induced. Confessions: Risk Factors and 11 Recommendations? 12 A Correct. 13 Q And you were one of the authors with Saul Kassin, 14 Steven Drizin, Thomas Grisso, Gisli Gudjonsson, 15 and Allison Redlich? 16 A Correct. 17 Q All right. In that article where you talk about 18 dispositional risk factors, we've already talked 19 about age. But there's also a discussion in 20 there about cognitive disabilities, mental 21 impairments, and the like; correct? 22 A Yes. 23 Q All right. And that particular part of the article, in large part, was based on research done by Dr. Gudjonsson and a colleague, John 10 1 Sigurdsson? 2 A Yes. 3 Q And in that particular resets — uh, research 4 that's reflected in your most recent publication, 5 there is a question — or I shouldn't say a 6 question — you conclude in that article that 7 there is a correlation between mental retardation 8 and its relationship to false confessions; 9 correct? 10 A Yes. 11 Q Um, in that article, as well, urn, Dr. Gudjonsson 12 talks about other dispositional problems such as 13 personality disorders; correct? 14 A I believe'so, yes. 15 Q And the presence or absence of anti-social 16 traits; correct? 17 A I believe so. 18 Q And um, Gudjonsson's research is based on a 19 sample of individuals in Iceland who claim to 20 have falsely confessed; correct? 21 A That's not all it's based on. I think his research 22 is based on a lot things, including American 23 research.
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