How 'Making a Murderer' Misrepresented the Case Against Brendan Dassey

By Dustin Rowles | Streaming | September 7, 2016 | Comments ()

By Dustin Rowles | Streaming | September 7, 2016 |


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Since the Netflix documentary Making a Murderer aired back in December of 2015, everyone has offered an opinion on Steven Avery’s guilt in the murder of Teresa Halbach. However, whether you think Avery committed the murder or not, most people are less certain about Brendan Dassey. He’s the real victim of the system, most people say. Whether he was involved in the murder of Halbach or not, he was screwed by an unjust judicial system, the police, and his own lawyer, who used a private investigator to wheedle a confession out of the cognitively impaired, underaged Brendan Dassey.

Right?

The focus of Netflix’s Making a Murder documentary is largely on a bizarre confession elicited by the private investigator of Dassey’s attorney, Len Kachinsky. Anyone who has seen the documentary will be instantly inflamed by this scene, which sees the P.I. ask leading questions and even providing answers for Dassey.

What is not emphasized, however, is that the confession the private investigator elicited was thrown out by the court. It was never used against Dassey. Moreover, what the documentary never bothers to explore is why the private detective Michael O’Kelly wheedled a confession out of Dassey in the first place.

To really understand why, it’s important to establish the timeline of events.

October 2005: Teresa Halbach is murdered

November 2005: A distressed Brendan Dassey — who had lost upwards of 40 pounds — talks with his cousin, Kayla, about Steven Avery.

November 6th, 2005 — Police ask Dassey routine questions as part of their investigation. He denies any involvement, but investigators believe he may be hiding something. Police consider him a potential witness.

January 2005: Kayla confided in school counselors about conversations she had with Brendan.

February 20th, 2005 — Police ask Kayla question as part of their routine investigation into Steven Avery. She offers, unsolicited, that her cousin Brendan Dassey often cried uncontrollably and had lost weight. She implies this may be related to Avery.

February 27th — Police interview Dassey at school without a lawyer present, believing he might have information about Steven Avery’s involvement in the murder of Halbach. Dassey at first denied any involvement, but then he told the police that Avery had asked him not to talk. After more questioning, he admitted he may have seen Teresa’s body, then he admitted that Steven killed Teresa. He denied his own involvement, and provided a written statement of what he knew.

February 28th — Police interview Dassey again, this time at the Two Rivers police department. They sought permission from Dassey’s mother, who provided it. A lawyer was not present because, again, police were interviewing Dassey as a witness, not as a suspect. Again, Dassey implicated Steven Avery in the murder of Halbach. The police, to protect Dassey and his mother from Avery and his family, offer to put them up in a hotel.

Later that night, with Dassey’s mother present, Dassey admitted to police that he helped Steven Avery clean up the crime scene, pouring bleach on the garage floor. He also admitted to having jeans with bleach stains on them, which he provided to the police as evidence.

March 1st — Police asked Dassey’s mother again if they could interview him. She agreed. A lawyer was not present because, again, he was only considered a witness at this time. Here, Dassey confessed not only to being a witness to the crime who helped clean up Avery’s mess, but that he, himself, had been involved in the rape and murder of Halbach. Police were able to corroborate much of Dassey’s confession with physical evidence. The confession was gruesome, and several pages long.

None of this was particularly unusual for a confession. In most cases, a guilty party initially denies wrongdoing, but under multiple rounds of questioning, offers more and more details until he or she admits being a witness, being involved, or outright perpetuating the crime. Confessions, in most cases, come in waves.

March 2nd — Dassey is arrested.

March 7th — Police interview Kayla again. She tells police that Brendan confessed to her that he’d seen Halbach’s body parts in the fire.

March 7th — Dassey is assigned a public defender, Len Kachinsky.

This is where it gets tricky, and where the documentary unfairly villainized Kachinsky. When Kachinsky came on as the public defender, Dassey had already confessed to the rape and murder of Halbach on video tape, and police already had corroboration from Kayla.

What is a lawyer supposed to do with a defendant who has already confessed to a murder?

First, that lawyer should seek to suppress the confession. That’s exactly what Kachinsky did. He filed a motion to suppress. The court denied it. The confession was admitted. The police had Dassey dead to rights.

With a client almost certainly going to prison for life based on his own confession, the best thing a lawyer can do at this point is to try and get the best deal for his client. Once the judge ruled that the confession would be admitted, that’s exactly what Kachinsky did. The prosecutor had made overtures suggesting that he’d offer Dassey a plea deal. He’d sentence Dassey to 20 years in prison in exchange for his testimony against Avery.

Kachinsky, in turn, tried to convince Dassey to make the deal. However, before Dassey could take the plea, he had to prove himself a reliable witness.

May 12th — The private investigator, Michael O’Kelly, met with Dassey to elicit the same confession he’d already offered to the police on video tape in the hopes that Dassey would see the light and take the plea deal. In the event that he did take the plea, O’Kelly would have another videotaped confession he could offer to the prosecutor showing Dassey would be a reliable witness, strengthening the case for a plea.

This is the confession that the Netflix documentary fixates upon. This is also the confession that was never admitted into court. The confession was not meant for court. It wasn’t really even meant for police. It was designed to persuade Dassey to take a plea deal, because Steven Avery and the Avery family were pressuring him not to accept it.

Was it a bad strategy? Undoubtedly, but it was well intentioned. Dassey had confessed. There was physical evidence corroborating the confession. The court had ruled that Dassey could stand trial (in fact, he tested higher than Avery on IQ tests). Dassey could not win. Kachinsky was trying to save Dassey from himself, and the influence of his horrible family, who was willing to throw Dassey under the bus in order to protect Avery.

May 13th — In a telephone conversation with his mother recorded by the police (without Dassey’s knowledge), Brendan confided to his mother that Steven murdered Halbach, that Steven made him help, and that Steven had previously molested him.

Late May — Steven Avery reportedly asked family members (in monitored conversations from prison) to induce Dassey to fire Kachinsky, who was trying to get Dassey a deal if he’d turn on Avery. Dassey agreed to fire Kachinsky, but the judge refused the request.

August — Kachinsky asked the judge to allow him to withdraw from the case. The judge agreed.

August 29th — Dassey is assigned a new lawyer, Mark Fremgen, who changed the defense strategy from trying to get Dassey the best deal possible to a strategy denying the confession. He put Dassey on the stand, and Dassey testified that he lied to the police about killing Halbach, and he lied to his mother about being involved. He said he made up all the details based on the book Kiss the Girls.

Why did you make it up, his attorney asked.

“I don’t know,” Dassey responded.

“Are you lying today?” his lawyer asked.

“No.”

The jury didn’t believe him. Dassey was convicted and sentenced to life in prison

—-

The thing to ask yourself in this situation is, which attorney was really looking out for the best interests of Dassey? The lawyer who attempted to get Dassey’s confession suppressed but, after failing to do so, tried to convince Dassey to take a plea deal that would’ve gotten him out of prison in 20 years? Or the lawyer who refused the plea deal and put Dassey on the stand to testify in front of the jury that he lied, but that he didn’t know why he lied?

Making a Murderer never asks this question. Making a Murderer, instead, focused on a confession elicited by a private investigator that was never even admitted into court against Dassey. Why? To manipulate and inflame the audience, and to obscure the fact that Dassey — by telling the truth — could have put Avery away and spared himself a life sentence.

Brendan Dassey was an accomplice in the rape and murder of Teresa Halbach. However, a judge could and should have granted him leniency in the case based on the fact that Brendan Dassey was cognitively impaired and that Steven Avery had taken advantage of that and manipulated him into helping to rape and murder Halbach, dispose of her body and clean up the crime scene.

Unfortunately, in order to be granted leniency, Dassey would have had to admit to the crimes. Instead, on the orders of his new lawyer and no doubt under the influence of Steven Avery, Dassey maintained his innocence.

If he’d listened to his original attorney, he’d probably be eligible for parole by now.


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