Dassey Pretrial Activities for Weeks Ending April 6 and 14, 2007

There were three important items for these weeks.

The first was the release of the defense witness list for the trial. Those on the list include prosecution witnesses for the Avery Trial such as DNA analyst Sherry Culhane. Also, Dassey Family members are on this list.

I wanted to see Bob Fabian, Earl Avery’s friend, on the list. He testified that on 31 October, 2005 he smelled burning trash and had trouble with smoke in his face from the Avery burn barrel. This about 5:30 P.M. He and Earl talked with Steven Avery for a moment.

I would like to see a crime scene cleanup expert testify about how effective a cleanup like the one described in the confession would be.

I searched the Court Record Events for the prosecution filing of a witness list. There is none listed. I expect that witness will need to present the confessions and testify about their conduct. It would be embarrassing if the prosecution forgot to file their witness list. So far, no prosecution witness list has been published by the local media. Perhaps though, this is an omission in the Record.

The Defense is stipulating to facts that some of the proposed prosecution witnesses would have presented.

A telephone call made by Brendan to his mother Barb Janda will be allowed as evidence. The call made as a part of the interrogation of Dassey on 13 May 2006 without his attorney being present.

Judge Fox stated his opinion that Brendan was alone in the interrogation room and knew the call was recorded. Therefore it was valid.

But, the interrogation that led to the call is certainly suspicious, perhaps illegal, since the investigators knew what they were doing. I wonder if the interrogation had led to consensual sex it Fox would have considered Dassey to be mentally capable of consent?

There are other recorded jailhouse telephone calls that the Special Prosecutor wants admitted as evidence. Fox will rule on these if necessary during the trial.

Finally, the jury from Dane County, Wisconsin was chosen without much argument.

Since it appears that there is no scientific evidence to link Dassey to the crime, how will this jury treat that vacuum? That is an issue that the Defense will need to clarify and return to.

The question in this trial is:

Can a person who confessed to a crime where the lack of physical evidence states the opposite be convicted?

If there is a guilty verdict, there is still much to be resolved. The performance of Dassey’s last attorney, Len Kachinski, will be at the fore. When he was released from the case, Judge Fox stated, “The Court finds that Attorney Kachinsky should have been present with his client during the interview in May. Having an investigator there and being available by phone was not enough. There was deficient performance on Attorney Kachinsky’s part and the reasons he gave as to why he couldn’t be present were not sufficient.” Judge Fox would not allow the representation problem to delay the trial saying it was post‑conviction issue.

Whether police can grill an accused without an attorney, knowing that legally, the attorney needs to be present should be an important part of an appeal. And, whether a prosecutor can try an accused when they know the physical evidence is contrary could play a part as well.

If the verdict is innocent, the story will not be over either. There is a potential lawsuit against those involved who coerced the confession. And, the magical bullet found in Steven Avery’s garage would be the result of a false warrant.

And, the fate of a young man hangs in the balance. On Monday, 16 April, 2007, the battle begins.