Avery for being a that O’Kelley provided to the prosecution Federal Judge Grants bad influence on resulted in the discovery of any evidence Brendan Dassey New Dassey, who might against either Dassey or Avery. take a plea deal. Trial And Castigates His Kachinsky didn’t On April 19, 2006 Kachinsky filed a mo- First Lawyer mention to report- tion to suppress Dassey’s police statements ers that Dassey and video taped confession. He expected to rendan R. Dassey was granted a new wasn’t considering lose the motion. To increase his leverage Btrial by U.S. Magistrate Judge William a plea deal, and he with getting a plea bargain, he told E. Duffin on August 12, 2016. Judge Duf- insisted his state- O’Kelley to interrogate Dassey and get an fin granted Dassey’s federal habeas corpus ment was false and additional confession from him to Hal- Brendan Dassey he was innocent. bach’s murder. petition, vacated Dassey’s convictions relat- (Wisc. DOC, 2011) ed to Teresa Halbach’s homicide in 2005, Kachinsky even and ordered that he either be retried within stated on Nancy Grace’s national television After the suppression motion was denied on 90 days or released. program, “there is, quite frankly, no de- May 12, 2006, O’Kelley videotaped his inter- fense” for Dassey if his recorded statement rogation session that day in which he acted Brendan Dassey and his uncle Steven Avery was accurate and admissible. belligerent towards Dassey and tried to scare were convicted in separate trials of charges and bully him into confessing to the involve- related to the disappearance in late October Avery stated to the media that Dassey was ment of him and his uncle Steven in Hal- 2005 of 25-year-old Teresa Halbach, and not very smart and it would have been easy bach’s murder. O’Kelley even lied to Dassey her apparent murder. The case was the sub- for the police to have coerced him, and that and told him that he had failed the polygraph ject of the Netflix series — Making A Mur- his confession must have been coerced be- examination. Dassey insisted he didn’t do derer — that was first broadcast in cause there was no physical evidence to sup- anything, and he was innocent. After December 2015. port his confession. Kachinsky responded by O’Kelley told Dassey that he would spend telling a reporter that it did not appear from the rest of his life in prison if he didn’t con- Dassey was 16-years-old when Halbach Dassey’s recorded statement that the police fess, Dassey recounted a story similar to what disappeared. Dassey had intellectual dis- coerced him. Kachinsky told another reporter was in his police videotaped confession. abilities, and he had been involved in spe- that Dassey had a good ability to recall the cial education services. Testing in October events he described in his statement. Without watching the videotape, Kachinsky 2002 showed his cognitive abilities were authorized O’Kelley to communicate with below average, his verbal abilities were Three weeks later Dassey met for a second the prosecution about the substance of below average, and his short and long-term time with Kachinsky, insisted he was inno- Dassey’s “new” confession. memory was below average. cent, and reiterated that he wanted to take a polygraph examination. The next day, May 13, Kachinsky autho- Four months after Halbach disappeared, rized Dassey to be interrogated by the pros- Dassey was interrogated four times during Apparently without conducting a back- ecution’s investigators without him being a 48-hour period from February 27 to ground check, Kachinsky hired Michael present. While O’Kelley observed from an- March 1, 2006 about Halbach’s disappear- O’Kelly, who claimed to be a private inves- other room, Dassey gave a statement that ance. During a three-hour interrogation ses- tigator and a polygraph examiner, to con- contained many internal contradictions, and sion on March 1, 2006 -- without an duct a polygraph examination. Kachinsky which was inconsistent with his statement attorney or his mother present on his behalf notified Dassey in a letter about the planned on March 1. -- Dassey gave an audio and videotaped polygraph examination, but he added in the statement implicating himself and his uncle letter, “the videotape is pretty convincing That same day, Dassey called his mother Steven in the rape, murder, and mutilation that you were being truthful on March 1.” Janda from jail. He told her that he had been of Halbach. interrogated again, and that Kachinsky Before Dassey took the polygraph examina- wasn’t present. In the recorded conversation Based on his confession, Dassey was tion the Manitowoc County District Attor- she told him: “Don’t talk to them no more. charged with first-degree intentional homi- ney sent an email to Kachinsky expressing … They are putting you in places where cide, second-degree sexual assault, and mu- concern about his pre-trial press interviews. you’re not. … what your attorney should be tilation of a corpse. He also referred Kachinsky to the relevant doing is putting an order on all of them that bar association ethics rule governing such they cannot interfere with you or your fam- On March 7, 2006, attorney Leonard publicity. ily members unless your attorney is present. Kachinsky was appointed to represent … Cause they’re all investigators for the Dassey. O’Kelly reported that Dassey’s polygraph Halbach case.… Cause the only thing that result was inconclusive, but he expressed they’re putting out there is bad stuff about Three days later Dassey met and talked with his opinion that Dassey was “a kid without you ...” Kachinsky for the first time. Dassey told a conscience.” Kachinsky hired O’Kelley as Kachinsky he knew nothing about Hal- the defense investigator. However, The State Public Defender’s Office sent a bach’s disappearance, his statement wasn’t O’Kelley’s primary mission was to find letter to Dassey’s trial judge that stated true, and he wanted to take a polygraph test evidence that would assist the prosecution Kachinsky allowing law enforcement offi- to prove his innocence. to convict Avery, since Kachinsky was as- cers to interview Dassey without counsel suming that Dassey would plead guilty and present was “indefensible,” and that it had Kachinsky gave numerous local and nation- be a cooperative prosecution witness decertified him from being appointed in against his uncle. None of the information al media interviews in which he blamed Dassey cont. on p. 4

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 3 ISSUE 65 - FALL 2017 Dassey cont. from p. 3 On January 30, 2013 the Wisconsin Court consin] court of appeals erred when it of Appeal denied Dassey’s consolidated focused on the statements of the investi- Class A through Class D felony cases. direct appeal and petition for post-convic- gators in isolation to conclude that they tion relief. The court affirmed the trial did not make any promises of leniency. Kachinsky filed a motion to withdraw as court’s ruling admitting Dassey’s confes- ... But when assessed collectively and Dassey’s lawyer, which was granted during sion, because it “was voluntary and admis- cumulatively, as voluntariness must be a hearing on August 25, 2006. The judge sible,” and he was not coerced. The court assessed, it is clear how the investiga- also ruled that Dassey’s statement on May also ruled that Kachinsky’s pretrial conduct tors’ actions amounted to deceptive in- 13 would not be admissible. The judge stat- did not constitute an “actual conflict of terrogation tactics that overbore ed that in light of Dassey’s age and record interest” because Dassey hadn’t proven by Dassey’s free will. [Op. cit. 86] of intellectual deficits, “Kachinsky's failure clear and convincing evidence that he “ac- ... to be present while his client gave a state- tively represented conflicting interests.” Thus, as long as Dassey told a version ment to investigators” “constituted deficient The court also ruled against Dassey’s claims the investigators accepted as “the truth,” performance on Attorney Kachinsky’s part.” his trial lawyers were ineffective “because he was led to believe he had no fear of they failed to present substantial evidence negative consequences. But if the inves- Dassey was appointed another lawyer. that his March 1 confession was unreliable, tigators did not accept as true the story failed to retain an expert on coercive inter- Dassey told them, he was told there During his trial in April 2007 the prosecu- rogation tactics, failed to present a part of would be repercussions. [Op. cit. 87] tion’s key evidence was Dassey’s March 1, his confession suggesting recantation, and, ... 2006 confession. in closing argument, conceded his guilt to Especially when the investigators’ the corpse-mutilation charge.” promises, assurances, and threats of Dassey relied on two defenses: negative consequences are assessed in The Wisconsin Supreme Court declined to conjunction with Dassey’s age, intellec- First, that his incriminating statements were review the appeals court’s ruling. tual deficits, lack of experience in deal- not true. Dassey’s lawyer introduced records ing with the police, the absence of a to prove his intellectual disabilities, and In October 2014 Dassey filed a federal ha- parent, and other relevant personal char- forensic psychologist Dr. Robert H. Gordon beas corpus petition that raised two issues: acteristics, the free will of a reasonable testified that his examination and testing of Kachinsky’s pre-trial conduct denied person in Dassey’s position would have Dassey showed he was “highly suggestible Dassey his Sixth Amendment right to effec- been overborne. ... [Op. cit. 88] ... when being interrogated,” and that the tive assistance of counsel; and, Dassey’s ... officer’s interrogation of Dassey on March confession was obtained in violation of the Dassey’s confession was, as a practical 1 exploited his suggestibility. Fifth Amendment. matter, the entirety of the case against him on each of the three counts. [Op. cit. Second, his alibi defense for October 31, The State of Wisconsin vigorously opposed 89] 2005 was he was home from the time he got Dassey’s petition. ... off the school bus until his uncle Steven ... the state courts unreasonably found called him about 7 p.m. to invite him to the On August 12, 2016 U.S. District Court that the investigators never made Avery family’s wrecking yard where Avery Magistrate Judge William E. Duffin issued Dassey any promises during the March was burning some branches and tires. He his ruling in Dassey v. Dittmann, No. 1-14- 1, 2006 interrogation. ... These repeated got home about 10 p.m. Dassey testified in cv-01310 (USDC ED Wisc., 8/12/2016). false promises ... rendered Dassey’s his defense that he did not see Halbach on confession involuntary under the Fifth October 31, and he never saw her picture or Duffin denied Dassey’s claim that Kachin- and Fourteenth Amendments. The Wis- heard her name until after she was reported sky’s pre-trial conduct constituted a “conflict consin Court of Appeals’ decision to the missing. When asked why he confessed to of interest.” Duffin had to deny Dassey’s contrary was an unreasonable applica- the law enforcement officers that he partici- claim because the U.S. Supreme Court has tion of clearly established federal law. pated in the rape and murder of Halbach, never ruled a defense lawyer assisting the [Op. cit. 90] Dassey responded, “I don’t know.” He tes- prosecution to the detriment of his client is an ... tified that he was led to believe by his inter- actual conflict of interest. [See Endnote 1 for IT IS THEREFORE ORDERED that rogators that he would be able to go home explanation] In making his ruling Duffin Brendan Dassey’s petition for a writ of to his family “regardless of what he said.” didn’t mince words that Kachinsky’s acted habeas corpus is GRANTED. The re- contrary to Dassey’s interests. Duffin em- spondent shall release Dassey from cus- Dassey was convicted by a jury of all charg- phasized Kachinsky’s “conduct was inex- tody unless,within 90 days of the date of es on April 25, 2007. For his first-degree cusable both tactically and ethically. It is one this decision, the State initiates proceed- intentional homicide conviction Dassey was thing for an attorney to point out to a client ings to retry him.” [Op. cit. 90] sentenced to life imprisonment with the how deep of a hole the client is in. But to possibility of parole after November 1, assist the prosecution in digging that hole The State of Wisconsin appealed Duffin’s 2048. He was sentenced to concurrent terms deeper is an affront to the principles of justice ruling to the U.S. Seventh Circuit Court of of 14 years imprisonment for second-degree that underlie a defense attorney’s vital role in Appeals on September 9, 2016. If Duffin’s sexual assault, and six years for mutilation the adversarial system.” ruling is overturned, it may come back to of a corpse. Avery was convicted in March haunt Dassey that his post-conviction law- 2007 of first-degree intentional homicide However, Duffin grant Dassey’s petition yers failed to claim Kachinsky provided and illegal possession of a firearm. He was based on the involuntariness of his confes- ineffective assistance of counsel — instead sentenced to life in prison. sion. Duffin’s ruling stated: of asserting he had a “conflict of interest” — “Most significantly, however, the [Wis- Dassey cont. on p. 5

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 4 ISSUE 65 - FALL 2017 Dassey cont. from p. 5 Magistrate Judge Duffin’s consideration of standard that a petitioner “need not show Dassey’s habeas petition. Under the AEDPA that counsel’s deficient conduct more likely for his conduct detrimental to Dassey during a federal court can only grant a writ of than not altered the outcome in the case.” the six months after Dassey was arrested. habeas corpus when the state court’s adjudi- Strickland v. Washington, 466 U.S. 668, cation of the petitioner’s claim on the mer- 693-94 (1984). Under Sullivan a petitioner On November 14, 2016 Judge Duffin or- its: (1) resulted in a decision that was must prove “adverse effect” from the multi- dered Dassey’s release pending the outcome contrary to, or involved an unreasonable ple representation, while Strickland re- of the State’s appeal. Duffin rejected the application of, clearly established Federal quires a petitioner must prove he or she was State of Wisconsin’s argument that Dassey law, as determined by the Supreme Court of prejudiced by their counsel’s conduct. is a threat to public safety. The State ap- the United States; or (2) resulted in a deci- [Dassey, Op. Cit. 57.] pealed, and on November 17, 2016 the Sev- sion that was based on an unreasonable enth Circuit Court reversed Duffin’s ruling, determination of the facts in light of the Sources: and ordered that Dassey remain in custody evidence presented in the State court pro- Dassey v. Dittmann, No. 1-14-cv-01310-wed (USDC ED Wisc.) (Decision granting habeas corpus petition, pending his appeal. ceeding. 8-12-2016) State of Wisconsin v. Brendan R. Dassey, No. 06-CF- Click here to read Dassey v. Dittmann, Dassey’s post-conviction lawyers inexpli- 88 (Cir. Ct. of Manitowoc County, April 19, 2006) No. 1-14-cv-01310-wed (USDC ED Wisc., cably argued that Kachinsky’s conduct was (Notice of Motion And Motion To Suppress State- 8-12-2016), in which Magistrate Judge Duf- an actual “conflict of interest,” even though ments) fin granted Dassey’s federal habeas corpus the U.S. Supreme Court has never held -- as State v. Dassey, No. 2010AP3105-CR (Wis. Ct of Appeals, 2nd Dist. 2013) (Denying consolidated direct petition. required by the AEDPA -- that the type of appeal and petition for post-conviction relief.) attorney conflict Dassey alleged requires a Making a Murderer, Netflix.com Avery is expected to rely on the ruling in new trial. In doing that Dassey’s lawyers Dassey to remain in prison, Appeals court rules, Post Dassey’s case in the brief due on August 29, failed to properly base his claim regarding Cresent, November 17, 2016 2016 in his post-conviction case. Kachinsky, to assert he provided ineffective assistance of counsel under Strickland v. In 2012 Justice Denied was one of the first Washington, 466 U.S. 668 (1984). His law- organizations to publicly suggest Dassey yers did that even though, “In its decision and Avery were innocent of involvement in granting Kachinsky’s motion to withdraw Justice Denied's Mobile De- Teresa Halbach disappearance, “and that from the case, the trial court found that just as he [Avery] and his lawyers claimed, Kachinsky’s performance was deficient un- vice Homepage Is Online! he was framed for a second time by the der Strickland when he allowed investiga- Manitowoc County Sheriff’s Office and the tors to interrogate Dassey without an ustice Denied’s mobile device homep- District Attorney’s Office.” See, “Has Ste- attorney present.” Duffin’s ruling laid out Jage is now online. The mobile friendly ven Avery Twice Been Wrongly Convicted that Dassey’s post-conviction lawyers could homepage has the narrow width recom- Of Heinous Crimes?”, Justice Denied, Is- be considered deficient in their handling of mended for smartphones and other mobile sue 52 (Fall 2012), pp. 3-5. this issue, because, “Although Kachinsky’s devices. conduct might support a claim for relief Justice Denied was highly critical in 2006 of under Strickland, Dassey never made this Justice Denied’s homepage detects when it the Wisconsin Innocence Project’s disregard argument to the state courts or to this court.” is accessed by a mobile device, and the user of Steven Avery’s presumption of innocence is automatically redirected to the mobile and their abandonment of Avery after he was Dassey’s post-conviction lawyers errone- homepage. There is also a link to the mobile charged with Halbach’s apparent homicide. ously relied on Cuyler v. Sullivan, 446 U.S. homepage in the upper right-hand corner of See Justice Denied’s Editorial, “Wisconsin 335 (1980) to assert his “conflict of inter- Justice Denied’s homepage. Innocence Project Needs To Show Backbone est” claim. Duffin noted in his ruling, “In In Steven Avery’s Case,” Justice Denied, Sullivan two attorneys jointly represented The mobile friendly homepage was created Issue 31 (Winter 2006), p. 5. three co-defendants, all at separate trials.” because half of all visitors to Justice De- and, the Supreme Court ruled in 2002 that nied’s website now use a hand-held device. Avery needed money to pay his defense Sullivan “does not clearly establish, or in- The following shows the growth of hand- lawyers for his prosecution for Halbach’s deed even support” expansion of “conflict held devices used to access homicide, so in February 2006 he hastily of interest” to “various types of conflicts justicedenied.org. agreed to a $400,000 settlement of his $36 other than those involving the representa- million federal civil rights lawsuit against tion of multiple clients.” Consequently, un- Year Desktop Mobile Tablet Manitowoc County for his wrongful convic- der the AEDPA’s restriction that a federal 2008 100% tion in 1985 for the rape of Penny Beerntsen, habeas claim must rely on “clearly estab- 2009 99.7% 0.3% and his 18 years of imprisonment. DNA lished Federal law, as determined by the 2010 97% 3% testing later identified another man commit- Supreme Court of the United States,” Duf- 2011 92% 8% ted the crime, and Avery was released in fin’s claim had no legal basis. [Quotes from, 2012 82% 13% 5% 2003. See, “Steven Avery Settles Wrongful Dassey v. Dittmann, No. 1-14-cv-01310 2013 72% 19% 9% Imprisonment Suit For $400k,” Justice De- wed (USDC ED Wisc.), Op. cit. 50-51.] A 2014 61% 28% 11% nied, Issue 31 (Winter 2006), p. 22. “conflict of interest” claim in Wisconsin 2015 51% 37% 12% under Sullivan must be proven by “clear and 2016 50% 39% 11% Endnote 1. convincing evidence,” while to establish an The Anti-Terrorism and Effective Death ineffective assistance counsel of claim un- Justice Denied’s mobile device homepage Penalty Act of 1996 (AEDPA) governed der Strickland must be proven by the lesser is www.m.justicedenied.org.

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