EPISODE 4: “INDEFENSIBLE”
As I watched Episode 4, I became more and more angry at what I was seeing on the screen. But my anger was not the result of improper actions by the prosecutors or the sheriff’s departments; it was because of what the defense was doing to their own client, Brendan Dassey. I pondered my strong reaction over the course of a day or so and I realized that my anger was a response to a sense of vicarious betrayal. The irony of being done in by one’s own attorney reminded me of the poor guy who was run over by the fire engine coming to save his burning house. It’s one thing for the other boxer to cheat, but when the people in your own corner throw the fight, the sense of betrayal is palpable.
I was reminded of the Latin phrase, Primum non nocere, or “First, do no harm.” This phrase is the ultimate principle of bioethics, and for centuries has represented the ethical prime meridian for the medical community. The adage cautions zealous doctors to recognize the very real danger of actually harming patients in their quest to heal them. The more zeal, the more desire, the more potential for mistake. It is tragic that this phrase is not emphasized in the same way in legal ethics; at least not in east-central Wisconsin. Watching Episode 4, I found myself swinging between incredulity and anger. I had to sit on this article for a day to ensure that only my factual beliefs, and not my indignation at the actions of those involved, were expressed.
It is terribly difficult to win an acquittal after being coerced into a false confession. That task is much more difficult if your attorney has drunk the prosecution’s Kool Aid. Upon being assigned the case, Public Defender Len Kachinsky apparently based his conclusions about Dassey’s guilt or innocence on what he had heard in the press and from the prosecution. His first remarks were;
“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.”
The very first thing he did was harm his client.
“WITH FRIENDS LIKE THESE….”
It’s hard to put a happy-face on that statement. Before he stepped foot in a courtroom, and obviously before he had reviewed the evidence, and at a point where Brendan Dassey was proclaiming his innocence, Len Kachinsky publicly pronounced his own client guilty. If that is not the definition of legal malpractice, I cannot imagine what would constitute such a breach of duty.
Though apparently incompetent, Kachinsky seems like a nice enough guy; in fact, he was so nice that he needed the services of a hatchet-man, Michael O’Kelly, to do his dirty-work. I’m going to toss out a wild guess here and speculate that Michael O’Kelly’s investigative background is in polygraphy. A look at the logo in the upper left-hand corner of the form he had Dassey sign is similar to other polygraph company symbols I have seen. It likely represents the swings of a polygraph inked line. Due to my own rule of using only what appears in the documentary to influence my conclusions (at this point) I haven’t checked O’Kelly out, but I don’t think it’s a bad assumption that at his roots, he’s a polygrapher.
Polygraphers are brought on by defense attorneys for one of two reasons; one is to polygraph an innocent defendant in an attempt to sway public opinion (and therefore the jury pool) with a truthful and credible denial of culpability. The other is to force a confession from a defendant who doesn’t want to accept a plea deal. No polygraph was ever given to Dassey or even proposed. Michael O’Kelly’s opening position was that Dassey was guilty and a liar, so there’s little doubt what he was hired to do.
I certainly understand that O'Kelly probably had very little—if any—real information about the case, except what Len Kachinsky told him about Dassey. I get the fact that he was probably brought in on short notice and told that he was there to "help" Dassey avoid a life sentence by copping a plea. But lack of time to learn the case doesn't excuse him any more than it does a doctor who loses a patient because he fails to read the charts and learn that the patient had respiratory failure last time he had anesthesia. It wasn't playing cops and robbers; Dassey's life was on the line. If O'Kelly didn't have enough information to understand the case, then he didn't have enough information to interview Dassey. If he didn't understand the facts of the case, and the reality that phone calls would potentially prove his client's INNOCENCE, then he had no business in that room.
It’s not just laziness on the part of Kachinsky or O’Kelly, it’s cost. Truth is expensive. Before I ever agree to take a case, I have a stipulation that I review case documentation and available evidence in order to come to my own conclusion—which might be against the hiring attorney’s position. This evidence review can easily take 10 – 40 hours. Then, if I agree with the defense’s conclusions, we continue forward. If I disagree, then I’m of no further use. I take no pleasure in telling the defense that I think their client is, or probably is, guilty. But I sleep better than I would if my opinion walked the street. Public Defenders rarely have the budget to compensate a private investigator for research, so they tell their investigators and polygraphers what is 'true' at the outset. But this isn't a mob; it is every person's individual responsibility to pull the fire alarm when they smell smoke.
“ARE YOU SORRY FOR WHAT YOU DID?”
Regardless of the purity or contamination of O’Kelly’s motives, the 5/13/2006 “Do you still beat your wife? interview form was heinous. And as we have learned through these proceedings, every single interrogation Dassey endured, either by the police or his own attorneys, began with the assumption of his guilt. The tactics used by all the interrogators were similar (though not completely aligned with current tactics) to those taught by John E. Reid and Associates, a firm specializing in a specific form of interrogation which they propagate through nationwide classes and seminars. Interrogations are not, regardless of what Reid might say, anything but an attempt to obtain a confession. They are not attempts to clean information not already known by law enforcement. However, even ‘Reid’ cautions against what was done to Dassey:
“Exercise extreme caution when interrogating juveniles, suspects with a lower intelligence or suspects with mental impairments. This class of suspects is more susceptible to false confessions and, therefore, the investigator should be cautious in utilizing active persuasion such as discouraging weak denials, overcoming objections or engaging in deceptive practices. Proper corroboration of a confession will be critical with this group of suspects.”
Dassey was a juvenile of (at best) low intelligence; his IQ was 73. He was in ‘special education.’ The investigators discouraged and ridiculed his weak denials, ignored his objections and engaged in extensive deception. I have no evidence to support any contention that they attempted to corroborate any part of his confession. If you could have more completely ignored Reid’s own cautions, I don’t know how. But he did:
O’Kelly: “I want you to make a decision. Read this form. Fill it out. Are you sorry?”
Dassey: “I don’t know. Because I didn’t do anything.”
O’Kelly: “If you’re not sorry I can’t help you. You did a very bad thing.”
Dassey: “But I was only there for the fire though.”
O’Kelly: “I don’t want you to tell me anymore lies.”
Dassey then provides “his own” investigator with three recorded opportunities that establish his alibi. Inconceivably, O’Kelley, so intent on proving Dassey a liar, that he doesn’t even ponder the fact that what Dassey is saying is easily verifiable!
O’Kelly: “Anything missing from this statement?”
O’Kelly: “Is Teresa in this statement? Then it’s missing. Then its not a truthful statement.”
At this point, I have to confess at wanting to reach through the TV and grab O’Kelly by whatever part of his body would have gotten his attention and asked him why he wasn’t listening.
O’Kelly: “Would you do this again? Why not?”
Dassey: “I didn’t do nothing.
O’Kelly: “That’s not true.”
Dassey: “I was only there for the fire.”
O’Kelly: “You were also in the mobile home.”
Dassey: “Not that day though.”
Then O’Kelly blurts out the real reason he wants Dassey to implicate himself;
O’Kelly: “I want you to testify against Steven Avery….”
Finally, the video of the inconceivable; a trained investigator telling his own client to draw pictures that would put him in prison for the rest of his life--if he was lucky. Pictures of an event about which the investigator now had enough information to doubt.
O’Kelly: “Draw a picture of him over here of him stabbing her.”
O’Kelly: “Draw a picture here of you having sex with her.”
O’Kelly: “Draw a picture of the bed and how she was tied down.”
O’Kelly: “Draw it big size so we can see it.”
O’Kelly: “You’ve done the right thing.”
It was as shameful a performance as I have seen in a non-violent interrogation. Then, O'Kelly says something that is equally offensive. When you think your client (whom you are duty-bound to defend) has just brutal crime which could get him life without parole or the death penalty, and the attorney for your client calls and asks how it went, and you say, “Quite well,” then you are misguided.
People frequently ask me, “How do these wrongful convictions actually happen?? Usually, I explain that the individual who was wrongfully convicted suffered from inadequate legal counsel. In this situation, however, that was not the case. Brendan Dassey was not victimized by inadequate counsel, he was railroaded by his own hostile counsel.
If an attorney believes their client absolutely guilty, and that the prosecution can prove the guilt beyond a reasonable doubt, I understand the responsibility to do the best you can for your clients; i.e., obtain a favorable plea agreement. But to do so without regard to exculpatory evidence is obscene. That Kachinsky and O’Kelly were paid by the state of Wisconsin borders on criminal.
If any part of Dassey’s alleged ‘confession’ was used against Steven Avery in court, it calls into question the propriety of the trial, if not the verdict. This is not to say that Avery did or did not kill Teresa Halbach. But if there is no limit to the misleading and false evidence that can be brought into court against a defendant, you can convict anybody of anything, any time you want.
What it says is that Avery’s trial might have no bearing on his actual guilt or innocence.
(Part 2 on Thursday)