BRENDAN DASSEY: A TRUE STORY OF A WRONGFUL CONVICTION
"This case is of exceptional importance to the national community of advocates seeking to defend the constitutional rights of children, particularly children" - Marsha Levick
Oshkosh correctional lies west to Lake Winnebago in east central Wisconsin, sitting on 273 acres of land - it is the most populous facility in the state, and within tangible reach of Brendan Dassey’s mother’s home only an hour and minutes away. The artic corridors and an 8 x 10 prison cell offer little comfort to the innocent Dassey who dreams away the hours of incarceration in the fantasy world of anime and manga novels, watching his beloved TV shows and expanding his musical taste thanks to the influence of a global community of supporters and friends.
When Making a Murderer descended upon a captive global audience in December of 2015, Brendan Dassey had all but been forgotten. Branded a hapless killer and rapist since the age of 16, Brendan was sentenced to life in prison, with the earliest possibility of parole in 2048. Wisconsin courts judged that he had been party to first-degree murder, mutilation of a corpse, and second-degree sexual assault - in the absence of corroborative and forensic evidence. Upon the release of the docuseries Brendan had spent 9 years - as the flame of notoriety had dimmed – almost alone. An exhaustive chronicle of small-town justice, Making a Murderer would forever alter the trajectory of its protagonists.
However, hope a commodity that even commissary couldn’t offer was unknown to Brendan and his legal team winding its way from the desk of US Magistrate Judge William Duffin who would overturn Brendan’s conviction in a 91-page decision in the August of 2016.
Duffin found Brendan’s confession involuntarily given and unconstitutionally coerced by cops who took advantage of his age and limited intelligence. The federal judge gave the state 90 days to decide whether to retry Brendan or release him. But true to form Wisconsin Attorney General Brad Schimel filed a dramatic last minute appeal in the US District Court for the Eastern District of Wisconsin.
Had Schimel not appealed Brendan would have been released by mid-November of 2016. But the fight to free Brendan intensified as Professors Drizin, Nirider and team filed a motion on September 14th to release Brendan on bail during the states appeal.
This is quite the appeals process huh? November 15th Judge Duffin orders Brendan be granted supervised release from prison. Duffin wanted Brendan home but unfortunately AG Schimel filed an emergency motion in the 7th Circuit Court of Appeals to put the release on hold.
With only hours to his release, Brendan sat in a cell, ready to leave. He had given away all of his worldly goods to other inmates and had changed into brand new clothes, hopeful and expectant. Outside he could hear the noise of news vans and journalists setting up to cover his release. And with hours to go the 7th Circuit Court ruled that Brendan remain incarcerated pending the state’s appeal. I don’t know about you, but just recalling that is like a timeline of passive torture by the state and chokes me up quite frankly. Brendan and all who believe in him were heartbroken.
February 14th 2017 saw Brendan’s case heard in front of a three judge panel at Chicago's 7th Circuit Court of Appeals. Brendan won round one, 2-1. But still Schimel pursued the innocent Dassey by requesting an en banc hearing. A rarity in the legal process it was granted. Brendan lost to a divided court 4-3 later that year.
After 13 years of litigation, Brendan’s team filed for a writ of certiorari with the United States Supreme Court (certiorari is a court process to seek judicial review of a decision of a lower court or administrative agency.) A case cannot, as a matter of right, be appealed to the U.S. Supreme Court. As such, a party seeking to appeal to the Supreme Court from a lower court decision must file a writ of certiorari. The court declined to hear Brendan’s case - only taking 100-150 of more than 7000 cases it is asked to review per year. It was a knockout blow, the amicus briefs had been plentiful and authoritative. And it would have been the first juvenile case before the court in more than 40 years, potentially protecting the many Brendan’s who find themselves caught in a system that demonstrably doesn't care too much for children.
Three years on, the fight to free Brendan intensifies with every wave of advocates that discover and bear witness to a true crime, the wrongful conviction of Brendan Dassey.
And while followers, armchair detectives and supporters have been riveted by the barrage of conspiracy theories, allegations of corruption, and the stalling legal tactics of Wisconsin’s Department of Justice, it is undeniable that many lives have been irrevocably changed by these events, including that of Teresa Halbach’s family and friends. In considering the elements at the core of Brendan’s wrongful conviction, I respectfully acknowledge the loss of Miss Halbach. But Brendan’s story is different, his freedom was not snatched from him on October 31st 2005, a date forever recorded in the annals of true crime, No, Brendan was on his PlayStation. Brendan had been with Blaine. Brendan was nowhere near Kuss Road. No, Brendan’s ordeal would unfold in Marinette County, Northern Wisconsin just a few days later.
November 6th had reached a frigid 0 degrees Celsius in Crivitz, Northern Wisconsin. Having travelled the 81 miles from Two Rivers on the 4th with his uncle Chuck, Brendan was readying himself for a weekend of collecting firewood, meanwhile Calumet and Manitowoc County officers had seized the Avery Salvage Yard and were feverishly searching Avery’s garage and trailer. However, the menacing chaos of the salvage yard was not far from Brendan.
Around 12.00pm on the 6th, Brendan left the Avery family cabin in the Marinette County town of Stevenson accompanied by his older brother Bryan to buy Mountain Dew in the town. Pulled over by Detectives O’Neill and Baldwin from Marinette County Sheriff's office the car was seized as part of a search warrant and the brothers were separated.
The first interrogation of Brendan Dassey took place in the back of a police car commandeered by Detectives O’Neill and Baldwin and lasted 45 minutes. This interaction proved to be the catalyst that initiated the beginning of Brendan’s journey into the abyss of Wisconsin’s system of justice and its detectives bare-faced bastardisation of the REID Technique on a suggestible, vulnerable teenager – barely 16 years of age.
While inside the car, and now separated from his brother, O’Neill did not advise Brendan Dassey of his Miranda rights and instead informed Brendan that he was not under arrest, History paints a different story. Brendan was in custody for Miranda purposes beginning at the 20-minute mark of the interview when the shift from a REID interview (which is assessment focused) into the guilt presumptive REID technique - takes place. Make no mistake November 6th was not a witness interview, it was an interrogation and Brendan was not mirandized. At the mercy of a powerful psychological interrogation technique Brendan would unwittingly relay foundational details that would cement law enforcement’s belief in his involvement in the Halbach murder.
Armed with the knowledge that REID elicits deference from Dassey, Investigator Mark Wiegert of Calumet Country Sheriff’s Department and Special Agent Tom Fassbender from the Department of Criminal Investigation set upon Brendan as if future recognition and accolades depended on it. Funny that! This was February of 2006.
So how did Brendan get from Crivitz in November to an interrogation at Mishicot High School in February? Did the words of a 13-year-old hold sway? And who sent her?
According to Wiegerts testimony at Brendan’s trial on the 19th of April 2007, the school counsellor Susan Brandt had not shared the information concerning the meeting with Kayla until shortly after Brendan was arrested. Why? Had she initially thought ( and rightly so) that is was just the vivid imagination of a young teenager? Wiegert and Wendy Baldwin would interview Kayla for the first time on 20th February 2006. Exactly a week later the abuse of Brendan Dassey would accelerate.
Supposed seasoned investigators took a statement from Brandt detailing Kayla specifically asking if blood can come up through concrete. Had she watched Carrie? This was so childlike, yet Wiegert and Fassbender again gave credence to a 13-year old’s imagination to solidify their case against the oblivious Dassey. Had Kayla been coerced and manipulated too? Had Wiegert exploited the suggestibility of a witness?
In case you’re wondering officers jackhammered the Avery garage concrete slab, and while it reacted to luminol, which also reacts to animal blood (family of hunters right?) metals (mechanics tick) and various bleaches, there was no DNA or blood found nor were experts willing to testify that blood was present.
Kayla Avery was just a child, when she spoke of Brendan’s weight loss and “supposed uncontrollable crying” as if they were precursors for homicidal tendencies and it was then she invited Wiegert and Fassbender into Brendan’s special education classes where this injustice ramps up. The halls of a Wisconsin education facility offered no protection to its charge, a learning-disabled student, but instead provided a cocooned gateway for the investigators to circumvent Miranda and molest interrogation techniques at the cost of young Brendan Dassey’s life.
Wiegert testified at trial that Brendan was not a suspect in the murder of Teresa Halbach at the time of the February 27th interrogations. But contrary to sworn testimony by the investigator, the Mishicot interview was an interrogation, why even Calumet County District Attorney Ken Kratz is quoted in the Sheboygan Press on March 3rd (page 3 to be exact) as saying “the boy did not voluntarily come forward with the information but instead had been targeted during the investigation." And targeted Brendan was.
Manitowoc County Sheriff’s office created a macabre avatar, luridly parading the softly spoken, intellectually challenged Brendan to the media and the people of Wisconsin. There were perp walks a ‘plenty. Brendan never stood a chance, a future dependant on the policies of prosecutors themselves influenced by the political context and hierarchy of the environment of small-town Manitowoc was never going to hold sway in favour of the gentle introverted Dassey. The presumption of innocence reserved for the Bernstein's and the Halbach's of Manitowoc society, not the Avery's or Dassey's. Special prosecutor Ken Kratz made sure of that.
We bore witness to Brendan being subjected to a sequential series of fact feeding interrogations that were acute contributors to his March 1st statement. Interrogated on four separate occasions over a 48-hour period. Including three times in a 24-hour time frame with no legal representation, parent or interested party present. All of this perfectly legal.
With few protections for juveniles in the legal process, Wisconsin had adopted a rule requiring police to electronically record all juvenile interrogations as per the ruling in the interest of Jerrell, a juvenile case that pivoted on the voluntariness of a confession. This was July 7th, 2005. Brendan Dassey would be among the first juveniles in Wisconsin to be afforded that legal safeguard - with the Wisconsin Supreme Court majority stating that recording will protect the individual interest of police officers wrongfully accused of improper tactics.
Yet how ironic that it failed to provide that layer of safety for Brendan. To add insult to injury the Wisconsin Supreme Court declined to review Brendan’s motion for retrial, a case where a false confession is central to the conviction, where one of the first juvenile interrogation recordings is central to to the claim of coercion - and with voluntariness in question. Leaning directly into their decision in Jerrell, even going so far as to say, “the recordings should help cut down on false confessions,” so why not Brendan Dassey?
There was a cast of villains in Brendan’s piece - Wiegert, Fassbender, Len Kachinsky, Michael O’Kelly, Fremgen, Edelstein, Fox, Kratz, and Schimel and their collaborative and extended intention to convict and preserve that conviction in the absence of DNA and in the absence of corroborative evidence. Yet in full knowledge of the confirmation of four federal court judges who upheld Brendan’s overturned conviction.
"What occurred here was the interrogation of an intellectually impaired juvenile. Dassey was subjected to myriad psychologically coercive techniques but the state court did not review his interrogation with the special care required by Supreme Court precedent. His confession was not voluntary, and his conviction should not stand, and yet an impaired teenager has been sentenced to life in prison. I view this as a profound miscarriage of justice" - Judge Ilana Rovner
The Sixth Hour is an extension of the conversation surrounding Brendan’s continued fight for justice and freedom. I explore with the help of subject matter experts the workings of small-town Manitowoc, the interrogations and the REID technique, we look closely at the Under the Hood analysis and unpack the relationship between oral language competency and Brendan Dassey’s experience in the interrogation room. We discuss the low standard of the ineffective assistance of counsel claim and ride the trajectory of Brendan’s appeal journey. And most importantly we invite ourselves into the world of Brendan Dassey – as it is today.
The mission is to incite you all to keep saying Brendan Dassey’s name and reflect on the learnings of the past 5+ years. If you were called for jury service and presented with a case that pivoted on a confession, would you know how to discern whether it was false or not? Millions of potential jurors, fact finders from across the globe through Brendan’s case - I believe would not arrive at the same decision as the jury of 12 women and 4 men bussed in from Dane country in the trial of 2007 did. It would take far less than the 4 ½ hours to rule “not guilty.”
This is the beginning of the wrongful conviction of Brendan Dassey. You know he recanted immediately right?
Written by Tracy Keogh. Episode One of Podcast, The Sixth Hour: The Wrongful Conviction of Brendan Dassey.
"What occurred here was the interrogation of an intellectually impaired juvenile. Dassey was subjected to myriad psychologically coercive techniques but the state court did not review his interrogation with the special care required by Supreme Court precedent. His confession was not voluntary and his conviction should not stand, and yet an impaired teenager has been sentenced to life in prison. I view this as a profound miscarriage of justice" - Judge ILana Rovner