The Supreme Injsutice

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Book/film List / Repairing the System / Repairing The Systen

The new sensation in legal circles is the Netflix documentary Making a Murderer The film is a riveting examination of the two trials and appeals of Stephen Avery who in rural Wisconsin was twice convicted, first of sexual assault and attempted murder and later of murder, on questionable evidence.

While the film certainly qualifies for the “no lawyer should miss” accolade, since it is ten hours in length, I fear many will. That’s why I suggest that you start with the “short course;” just view episodes 3,4,9, and 10 which tell the sad tale of Brendan Dassey, Avery’s alleged accomplice in the murder.

Starting with Dassey’s case has two advantages. Unlike Avery’s case where there are disputes of fact which cloud the question of guilt or innocence, Dassey’s case is straight-forward. The primary evidence against him is a confession he made to Manitowoc County detectives that we get to watch. Second, it appears that Dassey is innocent. This allows us to stop agonizing about guilt or innocence of individuals and focus on the procedures that produced a bad result.

Brendan Dassey was Stephen Avery’s sixteen year old nephew. Avery was already a local celebrity because he had been convicted of the sexual assault of a woman and had spent long years in prison before being exonerated by DNA evidence. After his release he filed a 36 million dollar law suit against the Manitowoc County authorities responsible for his incarceration.

Brandon was a shy teenager of less than average intelligence. One day after school he went over to his uncle Stephen’s auto salvage lot to hang out. Not much was happening so he soon left and went home. Later it turned out that the Manitowoc County Sheriff’s Department believed that was the afternoon Stephen met a potential customer, Teresa Halbach, at the lot and murdered her.

The detectives assigned to the Halbach investigation told Brendan’s mother that they wanted to ask Brendan some questions about that afternoon. First they interviewed him at school, but later brought him to the police station for further interrogation. At some point in the interrogations, they decided that Brandon was guilty of a serious crime. At that point they should have told Brendan and his mother that answers to further questions might be used against him in a criminal trial and that perhaps he should exercise his right to the assistance of counsel. A ritualistic recital of the Miranda warnings is insufficient. Instead they continued to play the role of friendly father figures, alternately encouraging and cajoling him, as they schemed to secure an admission that Brendan and Stephen had murdered, raped, and burned the corpse of Teresa Halbach.

Watching the video of that interrogation is a wrenching experience because we sense that the guileless Brendan has no idea of his peril. At first he repeats the “hanging out” story, but the officers press him to tell an entirely different story. Brendan starts to suggest other scenarios in an attempt to appease his interrogators. He tells them things they know could not be true, but they never tell him they know he is lying. Instead they push him to add additional facts that do support the story they want to hear. Finally one detective tips Brendan on what they really want to hear– “Who shot her in the head?” Brandon gets the hint and soon they have admissions to the rape, murder, and mutilation of the body of Teresa Halbach. As the session ends, Brendan asks, “Can I go home now?”

It is only after the authorities have a confession in hand that a lawyer is appointed to represent Brendan. The lawyer is Len Kachinsky. Kachinsky is a memorable bit player in the documentary because of his “what me worry?“ smile and obvious delight in being involved in such a big case. Unfortunately for Brendan, Kachinsky never appears to consider the possibility that his client is innocent. Instead he quickly joins into the prosecution plan to give Brendan a reduced sentence in return for his testimony against his uncle.

Kachinsky directs his investigator, Michael O’Kelly, to help Brendan fill out the forms necessary to plead guilty. We also see a video of that interaction. When Brendan once again suggests that he he didn’t commit a crime, O’Kelly is even more aggressive towards him than the detectives had been. He refuses to accept that version and like an angry school teacher dictates what Brendan should write down. O’Kelly then sends Brendan , unaccompanied by a lawyer, back over to the detectives to close the deal.

At this juncture the prosecutor in the case, Ken Krass, chooses to hold a press conference in which he shares with the public, including the potential jury pool, Brendan’s story of rape, murder, and mutilation of the corpse of the missing woman.

Later when it comes out that Kachinsky had allowed his client to be interrogated by the police without aid of counsel after his session with O’Kelly, he is dismissed by the court and a new lawyer is appointed. At trial the prosecution does not rely on the second confession, only presenting the video we saw and a short audio tape of a telephone conversation between Brendan and his mother. The jury convicted him and the judge sentenced him to life in prison where he still sits. His appeals were denied; his lawyers are now attempting to invoke post-appellate procedures to get him a new trial.

Who should we blame? The potential “blame” list should certainly include the detectives who hectored a clueless teenager to confess to serious crimes without the advice of counsel. But let’s remember, as the linked article points out, that devious interrogation techniques are not unique to Manitowoc County. And since the “confession” was held admissible by both the trial and appellate courts in Brendan’s case, I assume it conformed to current constitutional standards.

A second apparent villain is prosecutor Ken Krass. Clearly his use of his press conference to make a preemptive strike at the defense destroyed any chance to find an unbiased jury in Dassey’s case. But once again let’s note that this tactic was not found illegal by the courts. We must expect that police and prosecutors will use whatever legal tactics they can to win.

That is why I think the United States Supreme Court should head our “blame” list. The Supreme Court is the ultimate guardian of both our federal and state criminal justice systems. In the 1960’s the Warren Court handed down a series of decisions demanding protections for criminal defendants, including the right to the assistance of counsel. In the intervening years the Republican-appointed majorities of the Burger, Rehnquist, and Roberts Courts have steadily whittled away at those protections. Too often local systems indulge a silent assumption that anyone accused is guilty, a prejudice that the courts, led by the Supreme Court, must constantly challenge by demanding that even guilty defendants are convicted by a fair process.

We can hope that the injustice to Brandon Dassey will be cured by a federal judge overturning his conviction for ineffective assistance of counsel. Happily the larger systemic injustice can also be remedied, and we can all play our part. Just vote for the Democratic candidate for president in November whoever he or she may be.

Once you have finished the short course, I suspect you may want to view all ten episodes of Making a Murderer which tell an even more harrowing tale of injustice in the trials of Stephen Avery.

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