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1 2 '3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 State 1 STATE OF WISCONSIN : CIRCUIT COURT : MANITOWOC COUNTY BRANCH 3 2 ' 3 STATE OF WISCONSIN, 4 PLAINTIFF, MOTION HEARING 5 DAY 1 vs. Case No. 06 CF 88 6 BRENDAN R. DASSEY, 7 DEFENDANT. ■ 8 9 DATE: JANUARY 15, 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 PFER w 24 he defendant 25 COPY 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 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 1 INDEX 2 WITNESSES PAGE 3 KENNETH KRATZ 4 Direct Examination by ATTORNEY DRIZIN 12-104 5 Cross-Examination by ATTORNEY FALLON 104-108 6 Redirect Examination by ATTORNEY DRIZIN 108-112 7 8 LEN KACHINSKY 9 Direct Examination by ATTORNEY DVORAK 112-267 10 11 (Exhibits were marked prior to the motion hearing.) 12 EXHIBITS MARKED MOVED ADMITTED 13 41 267 269 14 55 267 269 15 63 267 269 16 64 267 269 17 65 267 269 18 66 267 269 19 94 267 269 20 212 267 21 306 267 269 22 310 104 104 23 315 267 269 24 317 267 269 25 319 267 269 1 2 320 267 269 3 321 267 269 4 322 267 269 5 323 267 269 6 324 267 269 7 325. 267 269 8 32 6 267 269 9 327 267 269 10 328 267 269 11 329 267 269 12 337 267 13 338 104 & 267 104 & 269 14 339 267 269 15 343 104 & 267 104 & 269 16 344 104 104 17 347 267 269 18 350 267 269 19 356 104 104 20 359 267 269 21 360 267 269 22 361 267 269 23 24 25 1 THE COURT: This is State of Wisconsin v. 2 Brendan Dassey. It's Case No. 2006 CF 88. It's 3 also Court of Appeals No. 2007 XX 1073. 4 Appearances. Starting with the prosecution. 5 ATTORNEY FALLON: Morning, Your Honor. 6 May it please the Court, State appears by Special 7 Prosecutors Tom Fallon from the Attorney 8 General's Office and Ken Kratz from the Calumet 9 County District Attorney's Office. 10 ATTORNEY DRIZIN: Good morning, Your 11 Honor. Is it okay if I introduce my team? 12 . THE COURT: Go ahead. 13 ATTORNEY DRIZIN: Okay. For the record, 14 on behalf of Mr. Brendan Dassey, I'm Steve 15 Drizin. 16 To my left is Laura Nirider, 17 N-i-r-i-d-e-r. 18 Sitting at counsel table assisting with 19 the technology today is Alex Hess. He is a 20 third-year law student at Northwestern University 21 School of Law. 22 In the first row is Mr. Joshua Tepfer 23 T-e-p-f-e-r. He is a law professor at 24 Northwestern Law School. 25 Sitting next to Mr. Tepfer is Ms. Adar, 1 A-d-a-r, Crosley. She is a third-year law 2 student at Northwestern University. 3 To her right is Mr. Thomas Geraghty. He 4 is a law professor and a director of the Bluhm 5 Legal Clinic at Northwestern Law School. 6 And behind me is Mr. Robert Dvorak who 7 is co-counsel with me on this case. 8 THE COURT: All right. Thank you. I'm 9 going to give a short introduction to the hearing 10 here today. 11 Uh, this is a case in which the 12 defendant, Brendan Dassey, was charged on 13 March 3, 2006 — and before I forget, the record 14 will also reflect that Mr. Dassey is here 15 personally — was charged on March 3, 2006, with 16 being party to the crimes of first degree 17 intentional homicide, first degree sexual 18 assault, and mutilating a corpse. 19 The victim in all three charges was 20 Teresa Halbach, who was murdered on August — on 21 October 30, 2005. 22 Mr. Dassey — excuse me — was tried in 23 Manitowoc County by a jury chosen in Dane County. 24 The jury returned guilty verdicts to all three 25 charges on April 27 — or April 25, 2007. 1 On August 2, 2007, this Court sentenced 2 Mr. Dassey on the intentional homicide conviction 3 to life in prison with the possibility of release 4 to extended supervision on November 1, 2048. 5 Additional concurrent sentences were 6 given for the other two convictions. 7 The defendant, through his counsel, 8 filed, on August 25, 2009, a motion under Section 9 809.30 of the Wisconsin Statutes seeking 10 post-conviction relief. 11 Specifically, Mr. Dassey is seeking a 12 new trial. He alleges he is entitled to this 13 because his trial counsel and his counsel, who 14 represented him immediately before trial counsel 15 was appointed, were ineffective in their 16 representation of him. 17 He also requests a new trial in the 18 interest of justice because he alleges that the 19 real controversy was not fully tried and his 20 conviction represented a miscarriage of justice. 21 To prove ineffective assistance of 22 counsel, a defendant must show deficient 23 performance and prejudice resulting from that 24 deficient performance. A hearing is required and 25 that is what we will be starting here today. 1 In Wisconsin, this hearing is also — is 2 often called a Ma.chn.er hearing because part of 3 its origin lies in a case entitled State of 4 Wisconsin v. Machner at 92 Wis. 2d 797. 5 Now, Mr. Drizin, have I correctly 6 summarized what relief your client is seeking? 7 There's — there 's nothing else that you have in 8 your motion? 9 ATTORNEY DRIZIN: I believe so. We 10 are— we are seeking two forms of relief. A new 11 motion to suppress Mr. Dassey's statements and a 12 new trial. 13 Urn, and the only other thing I will say 14 is, is that we believe there are two standards 15 operating in this case to judge the 16 ineffectiveness of Mr. Kachinsky's conduct, and 17 those include the Strickland standard, which you 18 articulated, the prejudice standard, and a 19 different standard that governs, urn, conduct by 20 an attorney when they are in a — a conflict of 21 interest and there's a breach of a duty of 22 loyalty, which we've labeled the adverse effect 23 standard. 24 25 proceed? preliminary motion but we're prepared. ATTORNEY FALLON: And just so the record is clear, we take issue as to whether or not there is a bifurcated standard here and whether it applies .in this particular context. Not the existence of it but whether it applies here. THE COURT: I understand. Go ahead. Motion. ATTORNEY DRIZIN: I'd — I'd have Mr. Dvorak argue this initial motion, Judge. THE COURT: Well, before we do that, maybe we should -- and maybe I should have done this before. But who's going to be doing what here today? ATTORNEY DRIZIN: Uh, we're going to be examining separate witnesses. It depends on whether or not the witnesses who we subpoenaed show up. Mr. Kachinsky was subpoenaed to be here today. He has, to the best of my knowledge, not appeared yet. Urn, that witness is going to be examined by Mr. Dvorak. I'm going to be examining, urn, Mr. Kratz, and Mr. Geraghty's going to be 1 examining Mr. Fassbender and Mr. Wiegert, if we 2 get that far. 3 THE COURT: All right. Mr. Dvorak, your 4 motion? 5 ATTORNEY DVORAK: Judge, it was just 6 a — a — a motion I think that was brought 7 earlier to exclude witnesses. And — and there 8 was, in my understanding, some argument by the 9 State that, um, somehow they — their view of 10 themselves as being in a rebuttal posture, uh, 11 and I guess I'm not sure that I understand what 12 the argument is, 13 But we're asking that there be the 14 standard order to exclude witnesses and that they 15 not be allowed to discuss their testimony. 16 THE COURT: That’s fine. I -- I think 17 this — what Mr. Dvorak is alluding to was a 18 conference that was held in chambers, I think, on 19 the afternoon of the 12th, Tuesday of this week, in 20 which we discussed this. The Court said that it 21 would sequester or separate witnesses. 22 Uh, Mr. Kratz suggested that since his 23 case was a rebuttal case, although the witnesses 24 that we were talking about were Mr. Wiegert and 25 Mr. Fassbender, both of whom I understand are 1 going to be called by the defense in any case. 2 Is that — so we'll have them sequestered. 3 ATTORNEY FALLON: I — I do have one 4 request for one exemption under that order.
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