Sunday, September 11, 2016

Federal Judge Overturns Brendan Dassey's 2007 Conviction; Wisconsin's Attorney General Files Appeal to Prevent His Release

Reason TV's Justin Monticello sat down with Jerry Buting to talk about the Avery and Dassey cases, updates since the documentary series aired, and what the cases reveal about the criminal justice system (video below).


UPDATE 2017: On August 12, 2016, Brendan Dassey's 2007 conviction was overturned by federal judge William E. Duffin. The State of Wisconsin appealed the decision. In June 2017, a three-judge panel for the U.S. Court of Appeals agreed 2-to-1 with Duffin's 2016 ruling. The State of Wisconsin appealed the decision. On December 8, 2017, the full seven-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled by a vote of 4-to-3 that Brendan's confession had not been coerced by police investigators, reversing the panel's decision.

U.S. Magistrate Judge William E. Duffin granted Dassey a writ of habeas corpus, arguing that investigators had coerced him into confessing to killing Halbach alongside Steven Avery, his uncle. The judge’s decision ordered Dassey to be released within 90 days unless prosecutors choose to file an appeal.
Duffin wrote that investigators offered the teen false promises that "he had nothing to worry about" while interrogating him without a parent present about the slaying of Teresa Halbach.
"When considered in conjunction with all relevant factors, most especially Dassey's age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments," Duffin wrote.
The decision noted that the confession comprised "the entirety of the case against him on each of... three counts."
A month later, on September 9th, Wisconsin Attorney General Brad Schimel filed an appeal of the judge’s decision in Wisconsin federal court, arguing that Dassey’s confession was not, in fact, coerced. Schimel also stated that the Halbach family had been notified of the state's appeal and fully supports its decision.
“We believe the magistrate judge’s decision that Brendan Dassey’s confession was coerced by investigators, and that no reasonable court could have concluded otherwise, is wrong on the facts and wrong on the law,” Schimel wrote in a news release. “Two state courts carefully examined the evidence and properly concluded that Brendan Dassey’s confession to sexually assaulting and murdering Teresa Halbach with his uncle, Steven Avery, was voluntary, and the investigators did not use constitutionally impermissible tactics.”

Dassey was the object of an exoneration campaign long before the December 2015 Netflix release of the docu-series, Making A Murderer. A Northwestern professor who has served as one of Dassey’s lawyers told a local NBC affiliate that he and his team investigated the case for a full two years before filing an appeal in 2010, then a habeas corpus petition in 2014. Still, it seems no coincidence that the crusade found success only after Making a Murderer hit Netflix and almost immediately renewed public interest in the case—much as convicted murderer Adnan Syed was granted a new trial this past June, two years after Sarah Koenig’s Serial podcast made him a household name. 

Brandon's lawyers argued that their client, who was only 16 at the time (he's 26 now), was coerced to confess a crime he didn't commit when he was questioned by the Manitowoc County Police Department without a lawyer present.

At the time the conviction was overturned, Brandon's lawyer said that his family "is grateful, in shock, trying to process this."
"This is right, this is justice," Dassey's lawyer, Laura Nirider, told ABC News on Friday. "We are over the moon. We were notified by email and I read this decision on my phone … 91 pages, unbelievable."
Making a Murderer filmmakers Moira Demos and Laura Ricciardi also reacted in a statement:
"Today there was a major development for the subjects in our story and this recent news shows the criminal justice system at work," they said. "As we have done for the past 10 years, we will continue to document the story as it unfolds, and follow it wherever it may lead."
Milwaukee Journal Sentinel reporter John Diedrich tweeted that the judge cited Dassey's age, intellectual deficits, and the absence of supportive adult as to what rendered his confession involuntary.
"The investigators repeatedly claimed to already know what happened on October 31 and assured Dassey that he had nothing to worry about," Judge William E. Duffin wrote in a 91-page court order, according to The New York Times. "These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey's age, intellectual deficits, and the absence of a supportive adult, rendered Dassey's confession involuntary under the Fifth and Fourteenth Amendments."
Via WBAY-TV:

Brendan’s appeal consisted of two arguments: that his confession was illegally obtained, and that Kachinsky “breached his duty of loyalty by working with the prosecution to secure Brendan’s conviction.”

While the judge ruled that he could not overturn Dassey’s conviction based on Kachinsky’s behavior, his 91-page decision stated that “Kachinsky’s misconduct was indefensible.” Specifically, the judge determined his “conduct was inexcusable both tactically and ethically. It is one thing for an attorney to point out to a client how deep of a hole the client is in. But to assist the prosecution in digging that hole deeper is an affront to the principles of justice that underlie a defense attorney’s vital role in the adversarial system.”
Here are just a few of the complaints made against Kachinsky (and his assistant Michael O’Kelly) in the writ of habeas corpus from Dassey’s lawyers:
  • Over email, Kachinsky and O’Kelly agreed that O’Kelly would interrogate Brendan on May 12, 2006 – the same day on which Kachinsky expected to (and did) lose his motion to suppress Brendan’s March 1st confession – because the blow of loss would render Brendan more vulnerable.
  • Kachinsky canceled a scheduled visit with Brendan to make Brendan feel more “alone” for the O’Kelly interrogation.
  • Previously, O’Kelly had sent an email to Kachinsky stating that Brendan’s family was “truly where the devil resides in comfort. I can find no good in any member. These people are pure evil…A friend of mine suggested: 'This is a one branch family tree. Cut this tree down. We need to end the gene pool here.' ”
  • The same day the judge denied the motion to suppress the March 1st confession, O’Kelly falsely told Brendan that he had failed a polygraph test.
  • After O’Kelly got the written “confession” from Brendan on May 12th, he called Kachinsky, who immediately arranged for Brendan to undergo a second uncounseled police interrogation the very next day.
  • Most of the above actions by Kachinsky and O’Kelly were not discovered until Brendan’s post-conviction evidentiary hearing.
Brendan’s uncle Steven Avery was convicted in a separate trial for the same crime and is currently serving life in prison without parole. Avery’s appeal lawyer and wrongful conviction specialist Kathleen Zellner seemed confident that something similar was coming for her client as well:
Zellner recently filed a request to retest evidence used in the trial against Avery in order to prove that local investigators planted evidence. She has also said new, "crucial" witnesses have come forward.
Members of Avery’s family were actually visiting him in prison when word came that Brendan's conviction was overturned. His cousin Carla Chase told WBAY-TV:
“He was kind of stunned because he can’t believe that it actually came through. He was in a little disbelief. He didn’t believe that it actually came through and it’s like yes, it came through everywhere, it’s news and all.”
Zellner also saw Avery that day and told WISN News:
“We fully expected this outcome from an unbiased court that carefully examined his confession. I was just visiting Steven Avery, and he is so happy for Brendan. We know when an unbiased court reviews all of the new evidence we have, Steven will have his conviction overturned as well.”
The Sly Attempt by Halbach's Family and Attorneys to Prevent Avery from Having ANY Form of Defense (Public or Paid)
By Nexious, TickTockManitowoc

I have been heavily researching some of the more obscure side-stories of the Halbach case. One of which is the timing and motive behind a civil lawsuit filed against Avery by Halbach's lawyer brother a year before Avery was tried criminally and the day after he settled the Manitowoc civil case.

This Halbach civil case and the motions by their attorneys had all the earmarks to prohibit Avery from any effective counsel for his criminal case; he was barred from getting a public defender, and the Halbachs attempted to freeze all of his available funds used for Strang and Buting's legal work. Below I will summarize these events with details taken from local sources:

On February 15, 2006, Steven Avery settled the civil lawsuit with the county for $400,000. $160,000 of this was held by the judge to cover legal costs, so Avery was left with $240,000. Effective immediately, the court disallowed Avery from having a public defender for the criminal case (formerly Erik Loy) due to his financial status.

On February 16, 2006, the very next day, Teresa Halbach's brother/attorney Tim (who was named president of the Calumet County Bar Association in November 2005, and who is currently Circuit Court Commissioner for Calumet County) abruptly filed a civil lawsuit in Calumet County against Avery on behalf of the family seeking an unspecified amount of money. Note that Avery was still a year away from the criminal trial and as such was presumed innocent by the court of law (in theory, at least). Mike Halbach told the media that "the civil suit isn't about money, but about justice" and the brother who filed it said it was "our remedy" for Teresa. Of course, the only possible outcome from any civil lawsuit is exactly that--money.

On February 18, 2006, Steven Avery transferred his available funds to a trust account on retainer for Strang and Buting's legal defense since he no longer qualified for a public defender.  

On March 23, 2006, attorneys for the Halbachs asked the judge to freeze any money that Avery still had remaining from the civil settlement. They also planned a motion to freeze all future earnings of Avery as well until after their case concluded (i.e., long after the criminal trial concluded). The attorney for Halbach even admitted that this request to freeze all of a person's funds in a civil case "is not typical, but it is certainly justifiable in this case." At Avery's request, the civil case was allowed to move to Manitowoc County.

On March 24, 2006, Judge Willis (the judge in the criminal case) recused himself from this civil lawsuit. He was replaced with Judge Deets.  

On May 23, 2006, the Halbach family called Avery's transfer of funds to the trust account held by Strang "illegal" since it wouldn't allow them to collect money if they'd win the civil case. The Halbach attorney proclaimed: "You cannot transfer all your funds to a nonrefundable retainer when you have a lawsuit against you." By this point, 60% of the available funds had already been exhausted by Avery's legal team, according to Strang.

On June 23, 2006, Judge Deets denyed the Halbach request to freeze these funds, stating: "The timing is suspicious, but it is equally plausible it was based on Avery's receipt of his settlement, his immediate loss of public defender services, and his negotiation to obtain competent substitute counsel just before the Halbach suit was filed."

As you see here, had Judge Deets sided with the Halbachs in this ruling, Steven Avery and, in turn, his defense attorneys, would had been deprived of any funds for the duration of the case. Yet, he also was not allowed to have a public defender due to this settlement as well. This is pretty jarring to me.

At least one astute resident of Green Bay noted this situation at the time and called it out in a letter to the editor of the local Manitowoc paper, quoted below:
Herald Times Reporter
June 1, 2006
Letter to the editor: Legal system is crooked with regards to Avery
What kind of cockeyed legal hocus-pocus is this?
On the one hand, a judge rules that a man no longer qualifies for a public defender, due to the fact that he has funds to defend himself.
Now we have a lawsuit which is trying to prevent those funds from being used for his defense. The lawsuit is based on the pre-jury-trial supposition that Steve Avery is guilty of murder.
Supposedly in the American system of jurisprudence, a man is innocent until proven guilty. But Steve Avery's guilt or innocence has yet to be determined in a court of law.
Such a lawsuit should not even be allowed consideration until after the jury trial has been completed. This is unless, of course, everybody's minds are already made up and the jury trial is nothing more than a big show.
May God help anybody who is ever caught up in a crooked legal system like this.
Below are the subsequent developments of this civil lawsuit:

On October 2, 2007, the Halbach family put their civil suit on hold pending all of the appeals from both Avery and Dassey's criminal trial.

On August 4, 2010, Dean Strang put in a request to withdraw as Avery's attorney in the civil lawsuit (but remain as his acting attorney for one year to give him enough time to find new counsel).

On November 6, 2013, a Sheboygan County judge was appointed to hear the civil case in Manitowoc County, and the case was set to proceed. At the time, neither Avery nor Dassey had any attorneys appointed to represent them in this civil case.

On November 22, 2013, the Halbach family requested voluntary dismissal of their civil lawsuit against Avery and Dassey, "...we feel that at this point in time, the reasons for voluntarily dismissing the case far outweigh the reasons to continue pursuing it...we know that following through on the pursuit of the civil case would likely be a time-consuming, painful experience. We feel that now is the right time to move on from this and to continue to live life like Teresa." Due to litigation still pending in the criminal case with the appeals process, the dismissal motion was put into abeyance (indefinitely suspended).

On April 13, 2015, Steven Avery probed the civil case to see what its status was given the voluntary dismissal request 1.5 years prior.

On June 8, 2015, the Halbach civil case was officially dismissed.

Read more »
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