Friday, 19 August 2016

Was the youth really innocent of the murder of a young woman?  

There are only a few more horrible events in one’s life than being sent to prison for life, especially if that person is innocent of murder. Many innocent persons serving life sentences later had their convictions vacated long after they served many years in prison. Consider the case of what happened to 16-year old Brendan Dassey of the state of Wisconsin.                                                  

Brendan Ray Dassey was born to Barbara and Peter Dassey in Manitowoc County, Wisconsin. He has three brothers: Bryan, Bobby, Blaine, and a half-brother, Brad. His parents had divorced and Brendan lived with his mother and brothers along with Brendan’s uncle, Steven Avery and others who also resided on the family property—which is part of the Avery Salvage Yard that belongs to Brendan’s mother’s  parents.  

With only an  IQ  that is in the borderline deficiency range, Brendan was enrolled in special education classes. Brendan had had no involvement with the criminal justice system and was described as a quiet, introverted young man with an interest in Wrestlemania, animals, and video games.

Twenty-five year old photographer, Teresa Halbach who lived next door to the Avery Salvage property was reported missing by her parents on November 3rd, 2005. Teresa was known to have visited the Avery Salvage Yard in Manitowoc County on October 31, 2005.

On November 10th, 2005, Calumet County Sheriff Jerry Pagel discovered the charred remains of Halbach on the Avery property, along with her Toyota RAV4 vehicle, cell phone, car key, and license plates. On November 15, after Avery's blood was found in her vehicle, Avery was charged with the kidnapping and murder of Halbach, mutilation of a corpse, and illegal possession of a firearm.

Avery's defense team argued that the evidence was planted, and that Avery was framed by the Manitowoc County Sheriff's Department in retaliation for a $36 million lawsuit that Avery had initiated following his release after serving 18 years for an earlier wrongful conviction by the county in a rape and assault case.  Penny Beerntsen who was the victim of a sexual assault in and attempted murder in 1985 was the crime that the police had wrongfully  blamed on Avery. Depositions in the lawsuit had taken place at the end of September 2005. I don’t know what the result of his civil case was.

I have no idea as to how Avery’s blood ended up in the victim’s car but I can’t in all honesty rule out the possibility that the police somehow got a sample of his blood and planted it in the victim’s car. Of course, I can be wrong of course on that assumption.

Many years ago when I was a private investigator with a very large investigation and security firm, one of the senior staff who was originally from London England and was an investigator with the police in that city bragged to some of us that he planted a man’s sperm on the bed sheet of a rape victim’s bed. He said that he did this because the suspect they wanted to nail for distributing drugs (he wasn’t a rapist) had evaded convictions in the past and framing him for the rape of an unconscious woman was the best way to put him away for a very long time. When I asked him how he got the sperm, he said that they broke into his house when the man wasn’t in the house and retrieved it from a Kleenex they found in a trash can.

With respect to Brendan’s case, after a series of interrogations in which the investigators have been accused of using highly questionable tactics and that they did this without counsel or parental presence, Brendan Dassey, who was Avery's alibi, confessed in extended, lurid detail to being a co-conspirator in the rape and murder of Halbach and the mutilation of her corpse. 

Now if this young man is truly innocent, then why would he confess to a crime he didn’t commit?

If you’re going into a police interrogation and you’re not on your guard, then you could make decisions that down the line will put you at risk for making a false confession. Because once you talk to the police, you’re opening up the chances that they’re going to use manipulative and coercive tactics to get a confession from you.

Initially, it is easier for an innocent person to defend himself or herself, but over time, the police will begin to wear the suspect down. They will convince the innocent suspect that there is solid evidence linking the suspect directly to the crime (when there is not). By minimizing the severity of a crime, police investigators will convince the person they are questioning that it’s in his or her best interest to confess and that if he or she confesses to the crime, the police will recommend a lesser sentence. Hence, the false confession.

Researchers have studied false confession cases in which police recorded the length of the interrogation. Of those cases, they found people were questioned for up to 16 hours on average. As a result, it can cause innocent people to lose their energy and motivation to continue defending themselves, ultimately leading them to give up and confess to crimes they didn’t commit.    

Brendan had suffered from a disadvantage that most suspects being questioned by the police don’t suffer from.  It was his borderline IQ.              

  On February 27, 2006, law enforcement officers conducted a witness interview of Brendan at his high school and a second videotaped interview at the Two Rivers Police Department.  Brendan’s mother, Barbara Janda, agreed to the second interview but declined the offer for her to accompany her son to the police station.  On March 1st, again with his mother’s permission, officers picked up Brendan from school for a videotaped interview.  During the ride to the Manitowoc County Sheriff’s Department, Brendan was read his Miranda rights and he also signed a waiver.  Upon arriving, Brendan acknowledged that he remembered the advisories and still wanted to talk to the interviewers.  He made several inculpatory statements over the course of the three-hour interview, such that he was then viewed by the police as a suspect.

Two days later. Sixteen-year-old Brendan and his uncle, Steven Avery, were both charged in the October 2005 sexual assault and murder of Teresa Halbach and with later burning her body.  After a nine-day trial, the jury returned guilty verdicts on all three counts.  Avery was tried and convicted separately. After Brandan’s conviction, his lawyer moved for a new trial and a new suppression hearing.  The trial court denied his motion after a five-day hearing in a thorough, soundly reasoned decision according to an appeal court that reviewed the judge’s decision.  

Brendon’s lawyer contended that his client’s March 1st confession was involuntary and should have been suppressed.  The lawyer claimed that law enforcement used psychological interrogation tactics such as feeding facts to Brendan and suggestions of leniency that overbore his will and exceeded his personal ability to resist due to his age, intellectual limitations and high suggestibility. 

 In assessing voluntariness, “the essential inquiry is whether the confession was procured via coercive means or whether it was the product of improper pressures exercised by the police.”  A prerequisite for a finding of involuntariness is coercive or improper police conduct.  A judge can evaluate a confession’s voluntariness on the totality of the circumstances.  The analysis involves a balancing of the defendant’s personal characteristics against the police pressures used to induce the damning statements that can lead to a conviction.   

An appeal court will not contradict a trial court’s determination that a confession was voluntary unless it appears that the finding was clearly erroneous, nor will the appeal court substitute its own judgment for that of the trial court judge or a jury as to the credibility of disputed factual testimony. However if the facts are found to constitute coercion, then it is a question of law that the appeal court will review independently.

The trial court heard the testimony of Brendan’s mother, his school psychologist and a police interviewer, and had the benefit of listening to the audiotapes and viewing the videotaped interviews.  The trial court found that Brendan had a “low average to borderline” IQ but was in mostly regular-track high school classes; was interviewed while seated on an upholstered couch, never was physically restrained and was offered food, beverages and restroom breaks; was properly Mirandized; and did not appear to be agitated or intimidated at any point in the questioning.  The court also found that the investigators used normal speaking tones, with no bullying, threats or promises of leniency but did prod him to be honest as a reminder of his moral duty to tell the truth; and told him they were in his corner and would go to bat for him by trying to achieve a rapport with Brendan and to convince him that being truthful would be in his best interest.  The court concluded that Brendan’s confession was voluntary and admissible. 

The court of appeal said;

“The trial court’s findings are not clearly erroneous.  Based on those findings, the court of appeal conclude that Brendan had not shown that he was the victim of police coercion.  As long as investigators’ statements merely encourage honesty and do not promise leniency, telling a suspect that cooperating would be to his or her benefit is not coercive conduct.  Nor is professing to know facts they actually do not have.  The use of deceptive tactics like exaggerating strength of evidence against suspect does not necessarily make confession involuntary however; it is a factor to consider in totality of circumstances.  The truth of the Brendan’s confession remained for the jury to determine." unquote  

Attorney Len Kachinsky was appointed to represent Brendan shortly after he was charged in March 2006.  Brendan’s trial lawyer contended that Kachinsky rendered ineffective assistance due to an “actual conflict of interest” that so breached the fundamental duty of loyalty owed to Brendan and for that reason, prejudice can be presumed.  

The court of appeal disagreed with that proposal. 

Conflict of interest claims in criminal cases are analyzed as a form of ineffective assistance of counsel. To prevail, the defendant must show by clear and convincing evidence that counsel had an “actual conflict of interest” i.e., that counsel “was required to make a choice advancing his or her own interests to the detriment of the client’s interests.”  Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected the counsel’s performance. The possibility of conflict is insufficient to impugn a criminal conviction. The allegation must be evident.

Brendan’s appeal lawyer  contended that Kachinsky had conceded that the March 1st  interview was noncustodial; he made statements to the media about the possibility of a plea deal; he directed his investigator, Michael O’Kelly, to gather further evidence on the Avery property; shared information with the State that helped build its case against Avery but which also implicated his own client because he faced party liability; and, through O’Kelly’s duplicity, allowed another police interview with Brendan on May 13th which resulted in a telephone confession to his mother.  Brendan’s lawyer also asserted that Brendan was at least entitled to a new suppression hearing because when he did not prevail at the original hearing, as a result, his March 1st  statement went on to become “the centerpiece” of the State’s case against Brendan. 

The court of appeal said in response;

“Mr. Dassey (Brendan) draws no viable link between Kachinsky’s actions and any demonstrable detriment to him.  While Mr. Dassey contends that at least as of April 23rd, 2006, Kachinsky and O’Kelly began planning to gather evidence favorable to the State and to extract a confession from him against his will, he identifies no “adverse effect” at the May 4th suppression hearing.  Kachinsky testified at the hearing that he hoped to get the best deal he could for Mr. Dassey and that, knowing Mr. Dassey’s family was pressuring him, he mentioned the possibility of a plea to the media to “send a message” to them that Mr. Dassey might have to “take a legal option that they don’t like.”  He also concluded that Mr.Dassey was properly Mirandized before the March 1st questioning; the trial court agreed and successor counsel likewise saw no meritorious Miranda issue.  The totality of the circumstances also persuades us that Mr. Dassey was sufficiently aware of the pre-custodial Miranda advisements after the nature of the interview changed.” unquote  

Finally, Brendan’s appeal lawyer contended that, without Brendan’s consent, his first lawyer Edelstein conceded the mutilation charge during his closing argument.  Edelstein told the jury that Brendan went to Avery’s house expecting a Halloween bonfire and “probably” saw something in the fire “and that something was Teresa Halbach.”  The appeal lawyer argued that Edelstein’s concession was the ‘functional equivalent of a guilty plea.’ 

Brendan’s appeal lawyer said that his client complains that his trial lawyer should have engaged in a point-by-point attack on each of the nineteen details in his confession to demonstrate that his knowledge of the crime came from external contamination such as facts of the crime given to him by the police who were questioning him, exposure to media coverage and conversations with his family, rather than by his personal knowledge of the crime.  

It is unclear to me as to how Brendan could possibly know how his trial lawyer should have proceeded considering the fact that he has a borderline IQ.  Notwithstanding the fact that he also denied that he watched television coverage and did not establish what facts he actually learned from other sources. He repeatedly said he did not know why he gave various answers and even told his trial lawyer that he might have dreamed the details or gotten them from a book.  That in my opinion; sounds like a lot of gibberish.

 Brendan’s lawyer also asserted that the trial lawyer should have introduced evidence that Brendan’s March 1st confession was unreliable and likely false, by calling an expert on police interrogation methods.  The failure was more egregious, he claimed, once Brendan’s trial lawyer learned that the State had retained Joseph Buckley, a prominent expert in that area of law and the head of the firm that markets the “Reid” interrogation technique.  Although forensic psychologist Dr. Robert Gordon, the expert the defense did retain, testified as to Brendan’s “high suggestibility” under “mild pressure,” he lacked the credentials to testify about coercive police tactics.

Besides Dr. Gordon, defence lawyers, Fremgen and Edelstein consulted with other experts, including a Reid Institute-trained police officer and Dr. Lawrence White, a professor of psychology and legal studies.  They ultimately decided not to counter Buckley with an expert of their own. Fremgen was reluctant to engage in a “battle of the experts” he was not certain they could win, and Edelstein thought experts would detract from the defense strategy of trying to humanize Brendan.  Moreover, the State did not call Buckley, and Fremgen testified that retaining White always was tied to responding to Buckley’s testimony.  Had the defense put White on the stand, the State could have called Buckley in rebuttal.  

The court of appeal could not say that failing to call a false-testimony expert was “outside the wide range of professionally competent assistance” evidence.

Next, Brendan’s appeal lawyer contended that Brendan`s trial lawyer  ineffectively failed to play the portion of a videotape, taken after his May 13th  interview that contained this spontaneous exchange with his mother:

BRENDAN:  What’d happen if he [Avery] says something his story’s different? What he says he, he admits to doing it?
BARB JANDA:  What do you mean?
BRENDAN:  Like if his story’s like different, like I never did nothin’ or somethin’.
BARB JANDA:  Did you?  Huh?
BRENDAN:  Not really.
BARB JANDA:  What do you mean not really?
BRENDAN:  They got to my head.

Was he saying that the police got to his head?

Brendan’s defense team disagreed on the clip’s benefit.  Fremgen feared it depicted a parent who recognized that her child was involved in a serious matter. Edelstein thought the jury should see it.  Fremgen, as lead counsel, prevailed.  The trial court found that the exchange at best was ambiguous and at worst validated Brandon’s confession.  This finding is not clearly erroneous.  Further, had the defense played that clip, the prosecutor well might have played portions in which Brandon’s nods “yes” when his mother Janda asked, “Did Avery make you do it?” and, when she asked, “What did he do to you to make you do it?” he answered, “Nothin.”  

Brendan’s reply to his mother’s question is clear evidence that he was in some manner complicit with the murder and mutilation of the young woman or alternatively, at least a witness to the crime.  In my opinion, the appeal lawyer should never have submitted that videotape to the appeal court. Now you can see why Brendan’s trial lawyer didn’t want to submit it to the jury. 

The members of the court of appeal said, “We cannot say that Fremgen’s decision was an unreasonable trial strategy." unquote  

In my opinion, it was a smart move.

The appeal court considered that under the circumstances, they were satisfied that Brendan’s lawyer’s performance was reasonable. As such, Brendan’s lawyer’s complaint about Brendan’s trial lawyer’s defence of Brendan being ineffective would not be grounds for a successful appeal.

Finally, Brendan’s appeal lawyer contended that, without his consent, Edelstein conceded the mutilation charge during his closing argument. Edelstein told the jury that Brendan went to Avery’s house expecting a Halloween bonfire and “probably” saw something in the fire “and that something was Teresa Halbach.”  The appeal lawyer argued that Edelstein’s concession was the “functional equivalent of a guilty plea.” 

I am not convinced that that concession was a form of a guilty plea. Edelstein in my opinion was implying that his client by pure happenstance came across the scene of a crime that had taken place earlier.

Probably Edlestein was probably trying to convince the jury that although his client was at the scene of the crime, he didn’t commit the murder or the mutilation of the body of the young woman. 

The appeal court also disagreed with the appeal lawyer’s implication. The court said;

“A guilty plea waives a trial, cross-examination of witnesses, the right to testify and call witnesses in one’s own defense and the right to a unanimous jury verdict of guilt beyond a reasonable doubt. Mr. Dassey exercised all of these rights.  Furthermore, Edelstein in no way conceded that Mr. Dassey mutilated, disfigured or dismembered a corpse with intent to conceal a crime.” unquote

Mere presence at a crime scene does not establish party-to-a-crime liability. Edelstein testified after the conviction that, as the mutilation charge carried the least penalty, he wanted to provide that option to the jury.  In my opinion, that concession presented to the jury by Edelstein was a reasonable tactical decision and not clearly an erroneous decision.  

Lastly, Brendan’s appeal lawyer asked the appeal court to reverse his client’s conviction in the interest of justice, asserting that the real controversy—whether his March 1st  confession was reliable evidence of his guilt which was not fully tried during Brendan’s trial.   

The court of appeal ruled;

 “We decline to use our discretionary power of reversal so that Mr. Dassey may take a different approach in a new trial when the defense that was presented was competent, if unsuccessful.” unquote

Brendan’s confession was the centerpiece of evidence that prosecutors used at his trial in which he was convicted of first-degree intentional homicide, mutilation of a corpus and first-degree sexual assault in March 2007. Now 26 years old, Brendan was given a life sentence with a chance for early release in 2048 when he is 58 years of age.  

A petition to the White House that requested pardons for Avery and Dassey garnered more than 128,000 signatures. The White House responded that, as the convictions were made in state court, the President had no authority to pardon either defendant. Governor Scott Walker of Wisconsin said he would not consider a pardon for either of the two convicted men.

Now I will give you an update: On August 12th 2016, a federal judge in Milwaukee overturned Brendan Dassey’s conviction in the 2005 murder of Teresa Halbach. The matter will go to a court in the future.

Steven Avery, whose conviction for rape and murder was the subject of hit Netflix documentary Making a Murderer, says he will soon be free thanks to new evidence. One vital piece of evidence in the appeal being filed by Avery's new lawyer, Kathleen Zellner, centers on the sample of Avery's blood found in Halbach's car. This raises two interesting questions. Was his blood really planted in the victim’s car by the police?  If this is so, how did they get access to his blood in the first place?

There will obviously be a follow-up of this most interesting saga. When I get the information, I will write another article sometime in the future of this very interesting case in my blog. 

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