“Whatever his personal failings, there are a number of systemic failings that are deeply troubling if you think about them too much.”
In the Netflix documentary Making a Murderer, the flaws of the Manitowoc County judicial system are brought to painful light. Making a Murderer focuses on Steven Avery, who served 18 years in prison for a rape he did not commit, but after exoneration, was convicted of murder. Avery and many others feel as though the conviction was to punish Avery for exposing misbehavior of the Manitowoc County executive and judicial offices. The scope of this misbehavior is most evident in the testimony from Brendan Dassey, which was used to convict Avery. (If you hadn’t finished the documentary yet and were wondering did Brendan Dassey Go to jail now you know)
In an interview on News 3 in Madison Wisconsin, Dean Stang made the statement quoted above. Dean Stang served as Steven Avery’s defense attorney in the 2007 trial in which he was convicted of the murder of Teresa Halbach. Before addressing the inconsistencies and failures which have given credence to claims of Avery and Dassey’s innocence, let’s first look at Dassey’s alleged involvement with Teresa Halbach’s murder.
Brendan Dassey’s Involvement in the Halbach Murder
In 2003, Brendan Dassey was a 14-year-old boy living with his extended family in the small town of Gibson in northern Manitowoc County, Wisconsin. The county is sustained by light manufacturing and energy, though both of those were in decline in 2003. Dassey lived with his mother and brothers Blaine, Bobby, and Bryan on a 40-acre lot law enforcement called “the Avery property.” There were three more residences on the property: Dassey’s grandfather and grandmother Allen and Dolores Avery, their son Steven Avery, and younger son Charles or Chuckie Avery.
There are several accounts of Brendan’s presence and involvement in the events surrounding Teresa Halbach’s October 31st disappearance, but for this article there will be a focus on two iterations. The first will be an amalgam of the statements Brendan offered to investigators prior to his criminal trial. The second will be his testimony, supplemented by information presented in Making a Murderer.
Ken Kratz was the special prosecutor on behalf of the State of Wisconsin in both the Steven Avery case and the trial against Brendan Dassey. In his opening statement for the Dassey trial (starts on page 21,) Kratz introduces Mark Wiegart and Tom Fassbender, the lead investigators for Brendan Dassey’s case. Mark Wiegert was at the time an investigator for the Calumet County Sheriff’s Department, located directly to the west of Manitowoc County. Calumet County had been given control over the investigation to, in the words of Manitowoc County District Attorney Mark Rohrer, “avoid any appearance of conflict,” related to Avery’s previously exonerated conviction for the rape of Penny Beernsten. Tom Fassbender worked for the federal Department of Justice.
After explaining the physical evidence which would appear in the trial, Kratz brings attention to what started as a witness interview with Brendan Dassey, conducted by Wiegert and Fassbender on March 1, 2006. The conduct of the investigators during this interview would later be a focus of Dassey’s defense, but for now the focus will be on the narrative they tell.
Police had already interviewed Brendan once about his knowledge about the Halbach murder, but were encouraged to re-examine his statements once his then-13-year-old cousin claimed he told her he saw evidence of Steven Avery’s involvement. At this point, police had found evidence of Teresa Halbach’s bones in his fire pit, and had information that Brendan had seen these bones in a bonfire on October 31st, when Halbach went missing.
According to the information built from Brendan’s statement-turned-confession, Brendan came home from school and saw there was a letter in his mailbox for his uncle, Steven. Brendan walked to Avery’s trailer, and heard screams from inside Avery’s trailer. Brendan knocked on Avery’s door, and Avery led him to his bedroom, where Teresa Halbach was tied to his bed. Avery successfully encouraged Brendan to rape Halbach.
Afterward, Avery stabbed Halbach in the stomach, and handed the knife to Brendan. Brendan then cut the woman’s throat, and the uncle and nephew took her, still alive, to the garage, adjacent to the trailer. There, they cut her hair and shot her ten times, finally killing her. After loading her into the back of her own SUV, Steven Avery and Brendan Dassey discussed what to do with her body. They decided to burn it, as well as her clothes, camera, and cell phone, putting them in an ongoing fire in Avery’s backyard.
Then, the two drove Halbach’s car to a nearby part of the Avery property, where Steven removed the license plates and opened the hood, disconnecting the battery. Going back to the house, Brendan and his uncle then cleaned the garage, yard, and trailer of any evidence of their crimes, successfully removing all DNA evidence. Next, Avery placed the key to Halbach’s car in his bedroom.
This testimony changed the nature of both the Dassey and Avery cases. After Brendan Dassey’s March 1 confession, police sought new warrants for the Avery property, and almost immediately found previously-unseen evidence corroborating Brendan’s statements. This quick transition from witness to suspect had lasting effects on the rest of his trial, especially the attitude from his defense team.
Brendan Dassey’s Defense
Len Kachinsky had just made a failed bid for circuit judge before being offered the role of Brendan’s defender. Appointed on March 7, Kachinsky started making statements to the press before ever speaking with Brendan. In a phone call with the Green Bay area NBC affiliate, Kachinsky stated, “We have a 16-year-old who, while morally and legally responsible, was heavily influenced by someone that can only be described as something close to evil incarnate.” This statement is still having an effect on the path of Brendan’s legal battles.
After making it publicly clear how he was approaching the case, Kachinsky retained the services of Michael O’Kelly. Digging around on Google reveals “Cell Tower Mike” O’Kelly had worked as a defense expert before, billing himself as an expert in cellular technologies and “polygraph.” In a 2012 case O’Kelly was involved with, O’Kelly is kicked off the defense team after he “took it upon himself to assume a more active investigative role.”
Initially, O’Kelly was hired by Kachinsky to administer a polygraph to Brendan Dassey. Dassey had asked Kachinsky for the lie detector test, objecting to the guilt implied by his March 1 statements. The results of this test were reported as inconclusive during the Dassey trial, and so were not admitted as evidence. However, with this in, O’Kelly’s role within the case began to grow, as it had earlier cases.
In an e-mail sent on April 27, 2006 where O’Kelly alluded to an interest in finding information which would prove Brendan’s confession, he also stated he thought Brendan would be the primary witness against Steven Avery. As dialog highlighted in episode 4 of Making a Murderer, the attitude of Brendan’s defense was that he should try to play into his perceived guilt in order to reduce his own culpability.
On May 9th, O’Kelly sent e-mail to Kachinksy about an upcoming meeting he wanted with Brendan. O’Kelly stated that Brendan should be kept alone, so he is ready to “trust” O’Kelly, and to bring Brendan to “see reality from [the defense’s] perspective.”
On May 12, 2006, Michael O’Kelly interviewed Brendan Dassey on behalf of Len Kachinsky. After laying out photographs of the crime scene and other artifacts, including a printout of Dassey’s polygraph results (later reported as inconclusive by Kachinsky.) O’Kelly tells Dassey, however, that the results show with 98% certainty that Dassey was lying during his earlier polygraph.
O’Kelly provided Dassey with a form, asking him, “Are you sorry for what you did?” From there, O’Kelly conducted an extensive interview with Dassey, ultimately getting Brendan to write a detailed confession. O’Kelly even instructed Dassey to draw pictures of things like Halbach tied to Avery’s bed.
Immediately after the interview ends, O’Kelly called Kachinsky, saying that it went very well, and asking if he should set an appointment with the DOJ’s investigator, Tom Fassbender. O’Kelly made the appointment, and the next morning, Fassbender and Wiegert interrogate Brendan. Their intention was to clear up previous inconsistencies, and to ensure his confession doesn’t contradict the physical evidence acquired after the search authorized by the warrants gotten after Brendan’s first confession.
Brendan Dassey’s May 13 statements to the investigators, made without Kachinsky’s presence, did little to bolster the prosecutor’s case. Brendan’s answers were as inconsistent and contradictory as they had been on March 1. By then, Brendan’s mother Barb had become suspicious of her son’s defenders. In her eyes, it seemed as though they were pushing him to admit he was guilty, to help the case against Steven Avery, regardless of his actual guilt.
Initially, a motion to remove Kachinsky as Brendan’s council was denied. However after learning that his May 13 statements were made without the Kachinsky’s presence, the judge removed Kachinsky from the trial on August 26, 2006.
The trial began in November of 2006, with Dassey ultimately being represented by Ray Edelstein and Mark Fremgen.
Brendan Dassey’s First Trial & Retrial Hearings
Making a Murderer covers the actual trial of Brendan Dassey pretty thoroughly. The prosecution’s case rested on the physical evidence discovered after the warrants issued in response to Brendan’s March 1 statements, while the defense argued that his statements were inconsistent and coerced from him.
On April 25, 2007, after deliberating for over four hours, a jury found Brendan Dassey guilty of all alleged charges: intentional homicide, mutilating a corpse, and second degree sexual assault. His conviction greatly helped the prosecution’s case against Steven Avery, who had not yet had his trial. Brendan was sentenced to life in prison, with parole eligibility starting in 2048.
On January 15, 2010, a hearing to consider a retrial for Brendan Dassey started, led by Steven Drizin. A driving force of the request was the belief that Dassey’s council during his first trial was ineffective. Allegations of Kachinsky having political motivations made an early appearance in these hearings, as well as questions about the methods used by Wiegert and Fassbender. Even the efforts of Fremgen and Edelstein were brought into question. Every person meant to defend Brendan seemed to operate from a basis of presuming guilt and working to prove his innocence.
On December 16, 2010, after asking for an extension to decide, Judge Fox, who had presided over Brendan’s trial, denied the motion for a retrial, claiming that the defense was adequately effective and no evidence of misconduct would have affected the outcome of the trial.
Three years later, Brendan filed for another appeal, under a similar reasoning as the first retrial, that his counsel was ineffective, with the additional appeal that his confession was involuntary. This drew a correlation between the defense used in the original trial and this 2013 appeal, helping bolster the legitimacy of Brendan’s claim. However, this appeal was also denied.
A third appeal was filed in November of 2014, with Laura Nirider with Bluhm Legal Clinic of Northwestern University School of Law speaking to the press about the appeal. This appeal is a writ of habeas corpus, which is used to ask a federal court to examine if a person’s imprisonment or detention was lawful.
Brendan Dassey Now in 2018 – Recent Updates
One of the biggest questions on social media right now happens to be “Is Brendan Dassey still in Jail?” As of January 3, 2016 he currently is still in jail and there is no updated information on his appeal. A habeas petition could have several results. If not outright rejected, Brendan Dassey may receive another trial, or may even be set free. It’s worth noting that very few habeas petitions are granted.
As it stands, Brendan will continue to serve his life sentence, with parole opportunities beginning in 2048.
What Happens if Brendan Dassey is Innocent?
Bringing this all back to the alleged murder of Teresa Halbach by Steven Avery, what would happen if Brendan Dassey’s petition is granted and his statements found to be coercive, or his initial detention unconstitutional?
A lot of the physical evidence which helped form the bulk of the case against Avery was found after warrants were issued in response to Brendan’s March 1, 2006 statement-turned-confession. If his statement is found to be coerced, or the questioning to have been illegal, it would make the evidence which was used to convict both Avery and Dassey illegally obtained. While this would make it inadmissible in Brendan’s trial, it would still be valid evidence in Avery’s case. While the exclusionary rule protects Brendan from evidence gained in violation of his rights, it does not apply to third parties (as affirmed in cases like United States v. Jeffers.)
Therefore, even if Dassey were fully exonerated, it would not affect Steven Avery. Avery, who has used all of his appeals, must serve his sentence, unless he can demonstrate a separate reason for appeal.