The boundary of winter fast approached Mishicot, Wisconsin on February 27th 2006. Six inches of snow clutched the earth as the temperature reached a frigid 12°f. Zealous law enforcement officials apprenticed by Calumet County DA Ken Kratz were to embark on a series of interrogations. Subjecting the socially limited Brendan Dassey to four interrogations across a forty-eight hour period.
The inaugural interrogation having ceased at 2.14 pm resulted in Brendan at his request returning to 8th hour class. February 27th augured ill for the future of Dassey. Sans a Miranda warning, a foreboding beckoned at the hands of words yet to materialise ... yet to be guessed.
Special prosecutor Ken Kratz, now inadvertently armed with Brendan’s suggestibility and vulnerabilities petitioned Fassbender and Wiegert to execute a second interrogation, bemoaning the quality of the recording from Mishicot High School.
It would be forty-six minutes later, that Brendan would once again be summoned to the conference room, where both he and his mother (Agent Fassbender had requested her presence on receipt of the first statement) are transported to the Two Rivers Police Department.
At 3.21 pm Brendan Dassey was Mirandised. Seemingly, witness management had ceased and at breakneck speed, the young 16-year-old sophomore student was, without thought to his complex communication needs, a suspect at the centre of a murder investigation.
What Did They Do To Brendan at Fox Hills?
February 27th would prove a litmus test in the wrongful conviction of Brendan Dassey. Later that afternoon Brendan accompanied by his Mother would find themselves displaced at the Mishicot Fire Station where Fassbender and Wiegert met with several other (nameless) detectives. It was decided in this moment that Brendan, his Mother and brother Blaine would spend the night at Fox Hills Resort in Mishicot.
The events that took place at Fox Hills would be cerement in secrecy. Wiegert under oath spoke to maintaining the integrity of the investigation, of protecting Brendan and ensuring the investigation went unsullied. However, the Avery’s knew nothing of Brendan’s coerced statements at this juncture and one can only guesstimate at what had transpired to slash protective custody to a redundant 24-hour period.
What we do know is that Agent Fassbender arrived at Fox Hills Resort at 11.50 pm to interrogate Brendan, this spoke to not protecting Brendan or securing the integrity of the investigation. It spoke to new information Fassbender had received regarding a pair of bleached jeans, otherwise known as exhibit 54.
Juvenile Interrogations Must Be Recorded
… so says the Wisconsin Supreme Court in a 2005 decision Jerrell C.J., 2004 WI App 9, 269 Wis.2d 442, 674 N.W.2d 607. Exercising its superintending authority, the court ordered all custodial interrogations of juveniles be electronically recorded when appropriate and without exception when questioning occurs at a place of detention. Such a decision would deem any unrecorded interrogations and written confessions of a juvenile inadmissible as evidence in court.
It is curious to note Judge Diane Sykes in a Marquette Law Review 2007 criticised the Wisconsin Supreme Court in its exercising of judicial power. Reprimanding the court for stepping on the branches toes, faulting its almost “limitless interpretation of its superintending authority”. Sykes is quoted “the court should not use supervisory authority to find solutions to difficult social problems such as the problem of innocent people confessing.” Really? Then who? Brendan Dassey’s injustice at the hands of a false and coerced confession would converge with Sykes and her immutable stance 10 years later as her narrow interpretation of AEDPA would position her on a 4-3 en banc majority in favour of the state courts erroneous findings.
“It is time for Wisconsin to tackle the false confession issue and take appropriate action so that the youth of the state are protected from crimes they not commit” - Justice Bradley majority opinion State v. Jerrell C.J
So, I posit Brendan was detained at Fox Hills. I hypothesize that he was neither Mirandised nor free to go. There was no audio or visual recording of the interrogation pursuant to 938.195, with Fassbender crying foul of his equipment. Talk of bleached jeans, inadmissible? Among statements admitted into evidence is one extracted by Fassbender at Fox Hills Resort; DCI report 05-1776/244. Exhibit 54 and Fassbender’s fetish for a pair of blue jeans would soon become pivotal in the State v. Brendan Dassey.
“Mr. Fassbender, that during the course of the conversation with Brendan, the first person to use the word or to suggest that it was blood on the floor was, in fact, yourself. Does that sound right? All right, it wasn’t Brendan who said, I thought I was cleaning up blood. Right?” - Edelstein
“That’s correct.” - Fassbender
Fassbender on receipt of what he determined incriminating “information” concerning bleach stains on Brendan’s jeans, a result of cleaning Avery’s garage floor, initiated an inanimate pursuit for fictitious evidence. Fassbender at the behest of Kratz and a cast of extreme literalists resolved to decimate the notion of “beyond a reasonable doubt” for the suggestible Dassey. At 11.50 pm on the 27th February Brendan Dassey and his words of placation and reiteration, absorbed into the early hours of February 28th permanently altering the course of his young life.
“You’re going to hear from a man by the name of John Ertl, from the Crime Lab who will talk about a three-or-four- foot circle just to the left and behind the riding tractor, uh, which is a big bleach stain. Uh, Mr.Ertl will talk about the bleach stain. You’ll see that bleach and paint thinner are recovered. Uh, but perhaps most importantly, Brendan himself, hands over to Investigator Fassbender his jeans. He says, these were the pants I was wearing that night...” - Kratz
It was not an anomaly for Brendan or his brothers to assist cleaning up Avery’s garage, a salvage yard erupting with broken machinery, cars, tractors and oil – somewhat of a necessity in the industry along with anti-freeze. Fassbender on the stand spoke of stains red in colour as a fact of evidentiary value, he recalled the bleach marks on Brendan’s jeans as pertinent to the overarching criminal investigation. The prosecution misrepresented innocuous findings to the jury as nefarious and incriminating. It was John Ertl himself who confirmed that the luminol tests failed to positively react to findings of blood or bleach despite Kratz’s closing protestations to the contrary.
To highlight the emphasis the prosecution put on progressing this theory, bleached jeans is referenced 72 times throughout the 2007 trial of Brendan Dassey. Discussion concerning bleach is addressed 99 times.
Edelstein: “Okay, you testified they appear to have bleach on them right”
Edelstein: “Okay these went to the lab did they not?”
Fassbender: “I believe so yes”
Edelstein: “No human blood on there, is there?”
In a labelled evidence bag rests exhibits 52, 53 and 54. Respectively Brendan’s jacket, sneakers and jeans, the attire of every teenager of 16. Like millions of his peers it is devoid of any condemnatory evidence, cleared by forensics, yet both Brendan and his clothes remain in the custodial grasp of those responsible for his wrongful conviction.
Free Brendan Dassey.