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  • Writer's pictureTracy Keogh

Brendan Dassey: A Story Not Forgotten


About a boy

At the time of his arrest Brendan was a 16-year-old kid in the tenth grade at Mishicot High, he’d never had any interaction with law enforcement, was quiet, socially reserved and loved his PlayStation and animals. And intellectually, young Brendan was functioning between the age of five to 11 years.


At the time of his arrest Brendan had been taking a mixture of special ed and normal classes. However, Brendan didn’t take normal classes because he was capable of them, but because the law required it. Since a young child Brendan had been repeatedly diagnosed with learning disabilities, which a slew of IEPS (Individualised Education Program) testified to – each documenting his continuous struggle with language and comprehension, his aversion to socialisation and in particular and worth noting his inability to understand idioms – idioms like “the truth will set you free” – as we so tragically saw. And let’s not forget that Brendan suffered with syncope – a condition where those affected faint at the sight of blood.


There is no biological predisposition in Brendan’s story. No singular typology or hedonistic tendency to harm. Quite the opposite and hardly the makings of a murderer.


About Teresa Halbach

Out of respect for Miss Halbach, what happened to her was horrific. But have the Halbach family been told the truth of what happened to their daughter? In the murkiness of such a flawed investigation the narrative crafted by the state was blatantly reverse engineered. There is no corroborative evidence, forensic or otherwise linking Brendan to any crime and most specifically to Miss Halbach's murder. Brendan’s confession is widely acknowledged by legal scholars, psychologists, and false confession experts to be false. And infamously Sherry Culhane (then head of the Wisconsin State Crime Lab) during the Avery trial testified there was no DNA of Brendan Dassey’s found anywhere. Brendan had compliantly parroted the states narrative of a bloody horrific scene playing out in his uncle’s bedroom, however, that bedroom had no trace of blood or DNA from either Brendan or Teresa Halbach. It is scientifically impossible that a crime occurred as the state posited. And an unforgivable fabrication for the Halbach family and Brendan.



How to extract a false confession 101

Brendan was interviewed six times between the November of 2005 to March 2006, with four interrogations in 48 hours and three of those within a 24-hour time frame. Let’s remember Brendan’s functional age and the fact he could not comprehend sentences longer than five words. During the March 1st interrogation he was asked 1,239 questions by the investigators, which is a question every 9-10 seconds. An individual of average to higher intelligence would find themselves confounded by this barrage of (mis)information, let alone a child who couldn't spell the word “garage.”


And if it’s true that Miranda was developed for an 8th grader and we know that those who are susceptible to false confessions often have a lower IQ or comprehension limitations, it stands that Brendan not only didn't understand his Miranda warnings which differed each time they were read, but had no comprehension of the danger he inadvertently found himself in. How could a suggestible child with profound speech and language impairments be cognizant of the investigators motivation as they led him to inculpate himself in a horrific crime?


Any sentient being who has witnessed Brendan’s interrogations recognise that he was guessing which is evidenced by the “who shot her in the head” sequence. And the world having that perspective into his interrogation room and the visceral reaction it has elicited in millions of people, has single-handedly created a pop culture moment that will potentially save thousands of people from wrongful conviction. Millions of us now know that you don’t need to be a lawyer or police officer in those moments with Brendan to understand that what was happening was incredibly wrong, you just had to be human. It was arresting. He was a vulnerable kid, and they were experienced investigators using an interrogation technique developed for seasoned adult criminals. And they used it badly and they weaponised it against a child.


Why would Brendan falsely confess?

False confessions are counter-intuitive right? Who would confess to a crime they didn’t commit? But research, data and exonerations tell us that people do and there’s no one kind of person who does, a false confession has many faces. However vulnerable children, juveniles and those with disabilities are more susceptible. No one knows how they will respond to the pressures that are brought to bear on them under interrogation. And sadly, without education, jurors and even judges through judicial ignorance find a false confession the gold standard of evidence. It doesn’t only trump other evidence, but it can corrupt it as well. Investigators will ignore incriminating evidence; alibis are recanted, and witnesses will change stories – it is that powerful. But they don’t happen in isolation. Interrogation techniques like REID offer the lesser of two evils to a suspect, both of which inculpate them. A confession practically guarantees a guilty verdict, and it did for Brendan Dassey.



Kratz press conference

The State argued to Avery's jury that, contrary to Brendan's March 1st story, Miss Halbach was killed in the garage, and that "only one man" was responsible for her death - and that man was Steven Avery. Yet to Brendan's jury the State argued that Halbach was stabbed and killed in Avery's bedroom, according to Brendan's March 1st statement, and that both Avery and Brendan were responsible for her death.


What? How is that possible? Well, when the DA is Ken Kratz and stealing a child’s presumption of innocence is a badge of honour, misdirection and fabrication is a given. Who can forget or even watch the histrionic presser he gave on March 2nd going as far as to issue a warning to everyone watching not to let children under age 15 listen in. And then narrated Brendan’s false and coerced confession to millions. To mention that Brendan had confessed was prejudicial enough, but Kratz vouched for the truth of the confession, he says “we now know what happened to Teresa Halbach” Brendan was never going to get a fair trial after that, and history tells us he didn’t.


Kratz knew he would have been in breach of ethical rules governing pre-trial publicity – he didn’t care. The Wisconsin Rule of Professional Conduct 3.6 (2)(a) prohibits lawyers from making public statements that the lawyer “knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of being prejudicial to the outcome.” Once Kratz was through with traumatising the nation at the expense of Brendan’s presumption of innocence, Brendan faced an uphill battle from a presumption of guilt. Kratz was never held to account for this violation, no one filed complaints with the Wisconsin Office of Lawyer Regulation. No one cared.


What defence?

Len Kachinsky took the case March 7th and would not speak to Brendan until the 10th and from March 10th to May 13th he spoke with Brendan for a total of 3 hours. But he gave hours upon hours to the press and media.


Even before he’s met with Brendan or read the criminal complaint or the March 1st statement, he’s snivelling all over local and national media platforms. He spoke to the media more than his client. His client a scared and overwhelmed kid.


“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” Kachinsky told NBC. “Well, if the tape is accurate, an accurate recollection of what occurred, there is quite frankly no defence,” to Nancy Grace. Where were the checks and balances to put a stop to this?


You know a failed bid for a circuit judgeship and his taking a case at $40 per hour speaks to his political and professional motivation. He was not a public defender. And he didn’t defend Brendan.


Kachinsky had five months to destroy Brendan’s life. He was incompetent and his decision-making altered Brendan’s available legal strategies to this day. Most notably waiving Brendan’s Miranda arguments during the motion to suppress by conceding Brendan wasn’t in custody Feb 27th and March 1st.

  • Kachinsky hired Mike O’Kelly to interrogate his own client and obtain further confessions to aid the prosecution.

  • Sent an email to the police and prosecutors indicating where he thought the murder weapon was hidden, without informing Brendan or obtaining his consent. (Of course, the search produced nothing).

  • Allowed Wiegert and Fassbender to interrogate Brendan alone and without an attorney on May 13th, 2006.

For the May 13th stunt Judge Fox removed Kachinsky from the case. However, the damage had already been done.


In his post-conviction opinion Judge Fox wrote Kachinsky “adequately represented Dassey’s interests and cannot be said to have provided ineffective assistance of counsel.” The court found that it was in fact constitutionally competent representation. It’s astounding. It was the Fox court who removed him. The system makes promises, but it’s humans who break them and that’s never truer than what happened to Brendan Dassey.


May 13th phone call

We know if not for the disloyalty of Kachinsky, the May 13th interrogation and phone call would not have occurred. The court wrote “Other than a brief audio clip of a portion of a phone conversation between Dassey and his mother, which the State played without objection in its cross-examination of the defendant and several questions asked on the cross examination of Dr Robert Gordon, nothing from May 13 was introduced at trial. The state made little more than passing reference to the May 13 phone call in its closing to the jury.”


Um, not quite. The state introduced the May 13th phone call from Brendan to his mother (at trial) three times.

  • During cross-examination of Brendan

  • During cross-examination of Dr. Gordon (suggestibility expert)

  • During closing arguments to bring Brendan’s alibi Mike Kornely’s testimony (and therefore timeline) into question

The state weaponised the call to show Brendan supposedly admitting guilt in the absence of coercion and it was devastating to him. There was no context given. No timeline for the jury to consider, or that Brendan had been left vulnerable from the result of the suppression hearing, or his being traumatised by the O’Kelly interrogation and his being pimped to Wiegert and Fassbender to complete the job. But frustratingly for them Brendan had forgotten the narrative they had fed him in Feb and March and the May 13th interrogation was a mess and not fit for purpose.

The less than dynamic duo Kachinsky's replacements were equally ineffective but in a less obvious way. They declined to introduce expert testimony from a false confession expert. Their strategy was to humanise Brendan as a young and easily manipulated individual. Why? What were they conceding that Brendan had been manipulated into doing? They didn’t want expert testimony stating it would be a desperate attempt by an accused to turn a trial into a battle of the experts. I’m far removed from being a lawyer or an expert of any kind but call me crazy I thought expert testimony was crucial, particularly in a case where a false confession was the sole evidence, and you have a jury without any instruction on false confessions.


And in "closing" let us not forget Edelstein’s damning closing argument where he concedes that Brendan was at the bonfire, and he did probably see something traumatic - leaving the jury to deliberate a statement made by the defendant’s counsel that places their client – Brendan Dassey – at the scene of a supposed crime. It’s the last thing they hear about Brendan Dassey before deliberating. It’s insane. Bad lawyering at its finest – and most destructive. Brendan has lost 17 years and counting in part because of it.


Appeals

US Magistrate Judge William Duffin overturned Brendan’s conviction in August of 2016 finding investigators violated his constitutional protection against self-incrimination and his right to equal protection under the law. Citing repeated false promises, when considered in conjunction with all relevant factors, most especially Brendan’s age, intellectual deficits, and the absence of a supportive adult, rendered Brendan’s confession involuntary under the Fifth and Fourteenth amendments. So, what happened next?

  • Wisconsin Attorney General Brad Schimel filed a last-minute appeal as was his modus operandi. Had Schimel not appealed Brendan would have been released by mid-November of 2016.

  • 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.

  • November 15th Judge Duffin ordered 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 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 only hours to go the 7th Circuit Court ruled that Brendan remain incarcerated pending the state’s appeal.

  • So much cruelty.

  • February 14th, 2017, Brendan’s case was 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 Brendan requesting an en banc hearing. A rarity in the legal process, which 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

  • Scotus declined to hear Brendan’s case.

But all was not lost, and the fight was mighty as Brendan’s team filed for clemency with the Governor of Wisconsin in the October of 2019. The governor denied the clemency petition without even reading it. The Governor’s office said that Dassey didn't meet the criteria for a pardon because he hadn't completed his prison sentence and must register as a sex offender– effectively removing commutation or the rights of the wrongfully incarcerated to seek a pardon. The clemency guardrails were arbitrary but binding.


Wrongful convictions

For every wrongful conviction case we know of, there are potentially millions we don't.


There have been 3,352 exonerations since 1989 and 414 of those involved a false confession. It’s not a true representation of the amount of wrongfully convicted though, because as we have seen with Brendan the system is built to convict and incarcerate, and you must be very fortunate to overcome the archaic laws that bind people to their 8 x 4’s.


The US has more people in cages than China and Russia combined. Incarcerating people of colour at 6 times the rate per capita of South Africa during apartheid and the shameful title of having the highest female prison population rate in the world.


Even when working as designed, the US criminal system functions to protect the privileged and harm the indigent and disenfranchised. Poor people lose, poor people lose all the time.


A Life not forgotten

As of August 2023, Brendan Dassey remains incarcerated at Oshkosh Correctional in Wisconsin; this is his 17th year as an innocent confined to a system that provides little more than a modicum of due process for people like Brendan. Just kids who get caught up in flawed investigations, coercive interrogation techniques and become victims of the court's refusal to adopt developments in juvenile neuroscience and brain development research. But we will keep saying his name because if justice cannot be found within the confines of the system, then we must bring pressures from outside of that system to affect the change we want to see, that we want to be part of and get Brendan Dassey home. What a story, what a sad fucking story, no one cared quite enough for the young Brendan. And he deserves better in this lifetime.


Brendan and his father Peter Dassey.


It’s time for Brendan. It’s Brendan time.

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