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  • Writer's pictureTracy Keogh

Len Kachinsky's Multiple, Concrete Acts of Disloyalty

The pursed lips of Judge Fox (left) and Len Kachinsky (right).

The Appleton attorney who will represent a teenager charged in the Teresa Halbach homicide said Wednesday a plea bargain is possible for his client. "Certainly, it's a possibility, depending on the circumstances surrounding the taking of the statement — whether that is challengeable or not," said Len Kachinsky, who was appointed this week to represent Brendan Dassey of rural Mishicot.

Ineffective Assistance of Counsel

The US Supreme Court held that part of the right to counsel is a right to effective assistance of counsel, yet February 2019 Supreme Court justice Clarence Thomas held in a dissent in Garza vs Ohio that defendants have a right to a lawyer but not to any degree of reliability in that attorney’s performance - the majority disagreed. Somewhat unsettling coming from the highest court in the federal judiciary of the United States.

As it stands there are over 2,812 exonerations documented by the Exoneration Registry. Statistics show that 1006 of those involve grossly incompetent defence. Remembering those listed result from successful claims, so, it is unlikely to be a true reflection of egregious attorney conduct. Len Kachinsky a case in point.

While Brendan’s injustice is awash with a cast of ghoulish characters, it’s Kachinsky and his behaviour that ranks among the most deplorable. Appointed March 7 by the state public defender’s office to succeed Ralph Sczygelski, Kachinsky would not speak to Brendan that day but would talk freely to the media - in what would be his modus operandi throughout his tenure.

“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,” he sniveled to Nancy Grace. Yet, at this juncture he has neither met with Brendan nor read the criminal complaint or statements that form the case in its entirety, against him.

Simply put the Dassey case was a vanity project for Kachinsky and his affable pretence a car-crash of self-promotion that would seal Brendan’s fate. Kachinsky was not a “public defender” and having just made a failed bid for a circuit judgeship his taking a case at $40 per hour speaks to his political and professional motivation.

I postulate that if it’s true that the American Bar Standards caution lawyers to not make statements to the media that are substantially likely to prejudice a case, why was Kachinsky not held to account for doing exactly that - at least that?

Kachinsky’s reign of [t]error lasted five-months. Despite his protestations that he has been unfairly accused of being disloyal, he left a trail of incompetence and decision making that would alter Brendan’s available legal strategies forever.

  • Waived critical issues such as Brendan’s Miranda arguments during the motion to suppress

  • Spoke to the media more than his own client

  • Hired Mike O’Kelly a self-proclaimed investigator 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 13, 2006

  • Failed to vigorously cross-examine Wiegert at the suppression hearing

For the May 13 stunt Judge Fox removed Kachinsky from the case in the August of 2006. However, the damage had already been done. He was decertified on the recommendation that his failure to provide competent representation to Brendan was indefensible. Yet Judge Fox and his court in post-conviction 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, despite Brendan’s post-conviction team arguing that Kachinsky’s collective actions constituted disloyalty to their client. It was a flaccid back pedal from Fox.

The state courts also leaned heavily into how much time had passed between Kachinsky’s representation and the start of Brendan’s trial stating that by the time a jury was selected, and Brendan was tried, Kachinsky was long gone from the case. This seems wholly ignorant of the devastating impact the May 13 phone call had on Brendan’s outcome.

The Fruit of an Involuntarily Obtained Confessional Tree

We know if not for the disloyalty of Kachinsky, the May 13 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.”

Not quite. The state introduced the May 13 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 - Brendan being left vulnerable from the result of the suppression hearing, Brendan being traumatised by the O’Kelly interrogation and the pimping of Brendan to Wiegert and Fassbender to complete their “death by a thousand cuts.”

Frustratingly for them, Brendan had forgotten the narrative they had fed to him in February and March so, subsequently no other statements were used against him.

Even Fremgen and Edelstein felt powerless to defend against it, but that’s of little surprise.

Bad Lawyering

Tasked with defending a child in a case focused on a false confession as the singular piece of evidence against him, they declined to introduce expert testimony from a false confession expert. Rather, they left the elephant in the room to seed and sought to humanise Brendan as a young and easily manipulated individual. Why? What were they conceding that Brendan had been manipulated into doing? One doesn’t have to be a lawyer to grasp a fatally flawed strategy.

“To muddy the waters with another expert regardless of whether the State presented one, sometime, and can, I believe in the eyes of the jurors, look like a desperate attempt by an accused to turn it into a battle of the experts without focusing on the facts – and most important in this case the defence of Brendan,” Edelstein explained. But the (uncorroborated) facts were intrinsically linked to the false confession Ray! An expert could have instructed the jury on how Brendan was fact-fed the narrative Ray! But Ray and Mark weren’t finished yet. Not to be outdone Fremgen agreed to not show Brendan recanting to his mother to a jury who had received no instruction on false confessions - a jury who would take just four hours to deliver a guilty verdict and destroy a child's life.

And in "closing" let us not forget Ray’s calamitous 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.

Bad lawyering at its finest – and most destructive. Brendan has lost 15 years and counting because of it.

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