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Judge Jerome Fox Denies Retrial for Brendan Dassey

A postconviction hearing was held from 15 January, 2010 through 22 January, 2010 to determine if Manitowoc County Judge Jerome Fox would grant Brendan Dassey a new trial. Judge Fox presided over the original trial and pretrial motions.

When Judge Fox denied a new trial, he included false facts in his findings. He also relied upon statements to investigators from a witness who clearly testified that she lied to investigators. His claims of overwhelming evidence against Dassey come up short.

The original trial began on 16 April, 2007. Teresa Halbach went missing about 31 October, 2005. The State of Wisconsin wanted Steven Avery for the crime, since he was the poster child for bad convictions in the State. Avery served eighteen years for a rape he did not commit. The rape victim was coerced by the Manitowoc County Sheriff to identify the wrong person. The perpetrator Gregory Allen went on to commit more assaults.

A major problem for the State was that Avery’s nephew, special education student Brendan Dassey, was an alibi witness. The now disgraced Calumet County District Attorney Ken Kratz took the role of Special Prosecutor. He had to take Dassey out. Kratz had his investigators, Calumet County Investigator Mark Wiegert and Wisconsin Special Investigator Tom Fassbender, find a pretense to interrogate and force information from Dassey. On 2 March, Kratz recounted a bloody and unlikely tale of a rape and murder. The grandstanding Kratz gave detailed inflammatory statements during a televised press conference even before any evidence was found to verify the confession. There was little physical evidence to backup the confession.

Nonetheless, Brendan Dassey was convicted on 25 April, 2007. The convictions were for 1stDegree Intentional Homicide, Mutilating a Corpse, and 2nd Degree Sexual Assault/Use of Force.

Kratz was assisted by Wisconsin Assistant Attorney General Tom Fallon and Milwaukee County Assistant District Attorney Norm Gahn.

There were four recorded interrogations and one unrecorded interrogation. On 27 February, 2006 Dassey was interrogated at Mishicot High School and the Two Rivers Police Department. The investigators placed the Dassey family at the Fox Hills Resort in Mishicot, Wisconsin that evening to continue their interrogation (without recording). On 1 March, 2006 the interrogators held Dassey in a room at the Manitowoc County Sheriff’s Department and interrogated him for over four hours. Finally, on 13 May, 2006, the investigators interrogated Dassey for over three hours. Tom Fassbender joined the interrogation at 10:30 P.M.

The issues at the hearing included ineffective representation and breach of loyalty. Feeding into these was the validity of the various confessions. Judge Fox had disallowed trial testimony involving interrogation sessions and related confessions that showed the State in bad light. The Interrogation in May, 2006 particularly demonstrated the coercion of Dassey by Wiegert and Fassbender.

Even the confession that was used at trial clearly showed Wiegert and Fassbender telling Dassey what they wanted him to say. That was not effectively used by the defense during the trial. Judge Fox did not think all that telling and coercing was a problem before, and he stuck with that.

Note that ineffective counsel does not automatically translate to an incompetent attorney. Ineffective counsel is there to recognize that attorneys can have bad days or go astray in trial strategy. At times, a trial defense attorney will testify that their performance at trial was deficient for a variety of reasons. A finding of ineffective counsel is showing that the justice system recognizes human frailties and is willing to rectify the errors.

When Dassey was charged, his first defense attorney Ralph Sczygelski, did not confer with his client about the fact that he was going to give Dassey up. He told Dassey to play along and then stated to the court that Dassey was forced to participate in the crime by his uncle. Later Dassey’s trial attorneys wanted Judge Fox to find Sczygelski ineffective, but Fox demurred.

Dassey’s second attorney, Len Kachinsky, took further steps. Before he met with his client, Kachinsky publicly declared his client guilty. Several times, Dassey requested a new attorney because he stated that Kachinsky was not listening to his statements of innocence. Each time Fox turned him down. Finally, Fox was forced to remove Kachinsky from the case.

When Fox examined the complaint that Kachinsky was ineffective, he admitted that he found Kachinsky deficient because when Dassey was exposed to police interrogation on May 13, 2006, Kachinsky chose to be not present. At the time, Kachinsky claimed that special education student Dassey was capable of telephoning his defense attorney with any questions. Dassey’s IQ was tested at 81. Kachinsky also claimed his investigator, Michael O’Kelly was present to intervene. But, as demonstrated at the hearing, O’Kelly was also selling his client down the river.

Defense investigator Michael O’Kelly interrogated Brendan the night before the 13 May, 2006 session with the intent of producing yet another confession. O’Kelly badgered, lied to, and told Dassey what he was to say the next day. This was with the full knowledge and cooperation of the State. When O’Kelly called Wiegert and Fassbender with the news that he had another confession, they jumped on the opportunity although they knew Dassey would be unrepresented.

The rehearsed confession immediately fell apart when investigators could not match it to their desired scheme. When they pressed Dassey, he admitted that the story was false. Despite their statements to Dassey that they didn’t want tell them what they wanted to hear, they still badgered him when he could not match their wants.

When Judge Fox addressed the railroading of Dassey by the defense team on May 12 and 13, 2006, he seemed to be excusing the defense tactics. He characterized the badgering and training of the defense investigator, Michael O’Kelly, as having Dassey again incriminating himself. Of course, the rehearsal fell apart when Dassey again, after being told to tell the truth by interrogators, stated that the Avery car was in the Avery garage rather than the Halbach RAV4.

Fox claimed that the defense attorney was not a problem prior to that incident. As far as Kachinsky’s original statements incriminating his client, before any meeting with the client, Fox readily accepted Kachinsky’s testimony that his intent was to let Dassey’s family know that they might not like some legal options. He also testified that he was trying to incriminate Steven Avery in hope of the State going easy on his client.

I think that a defense attorney’s responsibility is toward their client. It is not to incriminate another, much less their own client, in the court of public opinion, nor is it to publicly convey messages to the family of the accused. Really, if Kachinsky found this to be necessary, then he could have obtained a waiver from his client and directly explained the options and then state that his obligation is to his client. This business of using the press as the message vehicle is absurd and it is more absurd that Judge Fox accepted it so readily.

Kachinsky made only halfhearted efforts to suppress the 1 March, 2006 confession During a May, 2006 hearing, Kachinsky called the psychologist from Dassey’s school, but asked very few questions. Dassey’s low IQ was important from the viewpoint of State v. Jerrell. In that decision the Wisconsin Supreme Court specifically addressed the issues of police badgering and coercing low IQ juveniles. That issue went missing although the psychologist was present with documentation to back up that issue.

Kachinsky also called Brendan Dassey’s mother as a witness to testify that her son was truthful. I’m not sure what the point was supposed to be, but it made her statement appear to beneficial for the State.

Mark Wiegert testified at this hearing reiterating his claim that he did not hold Dassey to be a suspect before the 1 March interrogation. But, that is contrary to his trial testimony that he interviewed Kayla Avery to get her to make statements the State could use to target Dassey.

The 27 February interrogations were intended to elicit incriminating statements. Tom Fassbender testified that he went to the Mishicot Hills Resort that same evening to pressure Dassey into saying that the great red spot in the garage could be blood. Add to that was that the investigators went into the Dassey home to collect a pair of jeans that they believed were in incriminating. Finally, the conduct of the 1 March interview was too confrontational and too leading from the onset to be considered anything but an interrogation. The same is true of the 27 February sessions.

These were items that Kachinsky needed to hammer Wiegert and Fassbender with to undermine their claims. He did not.

Fox also seemed to feel that the May 12, 2006, interrogation of Dassey by the defense investigator was all right. After all, Michael O’Kelly secured yet another confession. Fox claimed that except from a short excerpt following the interrogation by Wiegert and Fassbender on the following day, nothing was used at trial. First, Fox disallowed the used of the interrogation at trial by the defense so his claim is selfserving. Second, Wisconsin Assistant Attorney General Tom Fallon used a theme specifically developed in this interrogation in his closing and introduced new (untrue) facts not entered during the trial. The theme was used to explain the documented telephone call answered by Dassey that interfered with the State’s timeline of the crime.

Finally, Fox concluded that any and all breaches of loyalty and ineffective assistance where not important since a period of time elapsed from the removal of Kachinsky from the case. I don’t know how that can be true. Kachinsky and his investigator consumed precious time, monetary, and other resources that would have been most useful to undermine the State’s claims and vet prosecution witnesses.

Judge Fox examined the claims of ineffective counsel against Mark Fremgen and Ray Edelstein. Mark Fremgen was assigned to replace Kachinsky. Fremgen requested Raymond Edelstein to assist.

Fremgen stated at the outset that he would not base his case upon evidence that he felt was already decided in the Steven Avery trial. I believe that the evidence challenge would have been worthwhile since a vigorous challenge would have shown that there was absolutely no forensic evidence to tie Dassey to the crime. Early in the trial, Edelstein was effective in shutting down the claims of the State that the Halbach vehicle found in the Avery Auto Salvage Yard was “ready for crushing.”

Fox first turned to the claim that the trial counsel erred in not getting testimony from an expert on false confessions. At the postconviction hearing, there was testimony of attempts to get an expert and then a last minute bailout by the chosen expert. The defense settled on suggestibility expert, Dr. Robert Gordon. Fox made an error on in his decision when characterized Gordon as a confession expert. Gordon’s area of expertise was on suggestibility. This was clear at pretrial when Judge Fox specifically limited Dr. Gordon’s testimony to exclude things that would play into false confessions.

Fox concluded that the trial lead attorney made a decision that was reasonable strategy by restricting expert testimony to only a suggestibility expert.

Judge Fox went on to state that Dassey’s trial testimony nullified anything a false confession expert would have said because many of his answers were “I don’t know,” when asked why he made the statements. And, Dassey offered a novel as the source of his statements. But, this is where an expert and the defense would have been very useful in pointing out that most of the confession’s content actually originated with the interrogators. I don’t believe that Dassey possessed an eidetic memory.

Fox also claimed that Dassey’s cousin Kayla Avery substantiated the claims of the State. This is amazing since Kayla stated clearly at trial that she had lied to investigators. There were two sessions with Kayla. One was on 20 February, 2006 which was before the 27 February interrogations. This was used as an excuse to target Brendan so to nullify his potential damaging testimony at the Avery trial. The investigators were able to get the fourteenyearold girl to tell them that Dassey had lost about forty pounds. No one else noticed that rather huge loss of weight, but the investigators didn’t care.

The second meeting with Kayla occurred on 7 March, 2006. The State needed some way to justify the portions of the confession where Dassey said his uncle had cut the victim’s hair, cut the throat of the victim, and then shot her in the head. According to the State’s theory, this all took place in the Avery bedroom while the victim was tied to a bed but there was no evidence to support that scenario. So Mark Wiegert suggested to Kayla some bedroom scenarios and she finally came up that Brendan told her that the victim had been “pinned up in a chair.” This was close enough for the State. Apparently, Wiegert also got her say that Dassey had threatened her since Kratz used the statement that Dassey threatened a woman with death at his opening statement. There was no testimony to corroborate Kratz’s claim.

It took a great deal of courage for the young woman to testify that what she told investigators was wrong. But, the suggestibility of witnesses is something that Wiegert was exploiting.

For Judge Fox to use the testimony that Kayla Avery clearly disavowed is amazing. Yet, he concluded that the police coerced statements from her were credible and nullified any unprofessional errors committed by the trial defense team.

When it came to the inability for the trial defense to deconstruct the 1 March confession. Fox became creative again. The video tape of the sessions sans the repudiation by Dassey was played for the jury. There was no ready explanation for the defense to agree to not show the jury the portion where Dassey said it wasn’t true, and “they got to my head.” Judge Fox concluded that this statement could be readily seen as an admission of guilt.

Fox also blamed Dassey for not explaining to his attorneys why he said what he did. But, it seems to me that any decent defense attorney will examine the evidence and given the amount of leading that occurred in all of the recorded sessions, could make an excellent case that the interrogators first fed Dassey the information and then badgered and guided him until he somewhat repeated their seedings. And since Dassey proclaimed his innocence to his first two attorneys and they blew him off, why should he trust that his efforts to help himself would be taken seriously.

Given the number of false confessions that have led to false imprisonments and allowed the perpetrators to commit more crimes, it is incumbent on defense attorneys to maintain quality control in the justice system. That starts with taking their defense seriously. There are numerous cases of false confessions, and even the lack of physical evidence does not prevent prosecutors from trying the wrong person.

In addition, the defense team had to be aware of the 81 IQ of Dassey. That would limit his ability to assist in his defense. Judge Fox had to be aware of that IQ, yet believed that Dassey would have a coherent and understandable reason for his statements. Even adults of average and above IQ are susceptibleto the confession techniques commonly used in the United States today. Even witnesses or victims who are coerced into giving false testimony are unaware of how or why they did. It’s a bit like walking into a store and buying a product after talking to the sales person when the consumer had no need or desire for that product, only worse.

At any rate, when Fox states that the defense team didn’t have any ability to deconstruct the confession on their own because, “Dassey provided little or nothing to his trial counsel that they could have used to deconstruct his March 1st confession,” he set a low level of performance expectation for defense attorneys.

The defense could have used the 27 February recordings as a demonstration of how early the interrogators were planting suggestions as well as the badgering of Dassey when he didn’t respond correctly to their needs.

The 13 May, 2006, interrogation session was another example of how deceitful and coercive the interrogators were. At this session, they insisted Dassey tell them the “truth” because they had all the evidence to show what was real. They told him to tell them the truth, not what he thought they wanted to hear. When they asked him whose care was in the Avery Garage, Brendan answered truthfully that Steven Avery’s vehicle was there. Immediately, Wiegert and Fassbender reneged on their claims that he should not tell them what they wanted. Also in this session they badgered him to change his statement to a lie about an event that was verified to be true.

Fox decided none of the interrogations could be used by the defense because the defense could not use exculpatory statements that were intertwined with inculpatory statements. The State was allowed to use incriminating statements from the same interrogations. If this is a correct legal reading by Fox, then the justice system is corrupt.

Fox further stated that the expert testimony at the retrial hearing came at a late date and would not have affected the original trial. Fox opined that the deconstruction was not “evidence.” I disagree. The deconstruction shows a methodical planting of statements by the State and continual coercion of the defendant. Dassey’s statements showed a desire to please his interrogators and while he tried, often he could not get the words right without much help and direct planting from the interrogators.

Judge Fox claimed that Dassey gave incriminating testimony when he testified that he had been at the bonfire the night of 31 October, 2005 and “helped his uncle put things on the fire including tires and the seat from Teresa Halbach’s RAV4.”(emphasis added) This was yet another severe error by Fox. There were no missing tires or seats from the RAV4. A sitting judge making this kind of error unintentionally is unimaginable.

I felt at the trial of Brendan Dassey that Judge Fox was prejudiced to help the prosecution. I understand that judges can lean toward the State and that is considered all right by Wisconsin judicial rules. His golden boy, Special Prosecutor Ken Kratz was just as corrupt and devious then as he when was discovered to be during the sexting scandal. There is no way that Fox can whitewash Kratz with his ruling.

Fox claimed that the evidence was overwhelming. Actually the evidence was missing. The State claimed that there was such a thorough crime scene cleaning that all evidence was obliterated. That is bizarre. The State also did not test crucial pieces that could have corroborated or disproved the Dassey confessions. The State was aware that the items would not help. At least some persons on the State side had to be aware that the case against Brendan Dassey was bogus.

Fox also claimed the jury would not have ruled differently even with expert testimony. The jury stopped being a deliberative body at the end of the partial playing of the 1 March, 2006 confession. Fox had to be aware that the jury was not doing its duty. But, it is also the job of the defense to reengage the jury with good and knowledgeable witnesses. The Defense has to be aggressive in showing that the lack of evidence really means no evidence rather that cleaned up evidence as the State claimed.

Fox claimed that the cases referenced by the defense for retrial were not applicable.

I understand that the responsibility of the justice system is to maintain convictions. This means protecting jury verdicts and trial judges. But, there are times with the behavior of parties in the justice system, and this includes Fox, are so egregious that justice requires a second look. Hopefully, the appeals court will be capable of taking an honest look at this case.

Fox claimed there were no Miranda issues. But, the issuance of the warnings in the 1 March, 2006 interrogation were given to a person who was captive. I believe a test of Miranda validity should include the suspect explaining their understanding of the statement.

Fox ruled that closing statements made by Edelstein were acceptable. Edelstein’s wording could have been better. he conceded that Dassey probably saw something, “Pretty traumatic,” that became an admission that Dassey saw a body in the fire. Fox concluded that this admission did not rise to an admission of mutilating a corpse.

Among the factual errors by Judge Fox are his false claim that Dassey testified that he helped place items from Halbach’s RAV4 in the bonfire. Fox falsely claimed that Kayla Avery incriminated the defendant when she clearly stated that she lied to investigators but didn’t know why. Fox falsely claimed that Dr. Robert Gordon was an expert on false confessions although he would not allow Gordon to testify about false confession.

Fox claimed that Dassey was able to say that the victim was shot in the left side of the head. It is clear from the transcript that Wiegert could not get Dassey to say the victim had been shot until he demanded from Dassey,” who shot her?” Tom Fassbender was hidden from the video camera during this interrogation and well could have pointed to a side of his own head.

At the original trial, Fox demonstrated a remarkable bias when he allowed items as evidence that had no connection to the crime and were clearly meant to be inflammatory. The leg irons found in the Steven Avery home had no Halbach DNA. The irons did have Avery DNA and DNA from another person that the State did not want know. But, Fox claimed that the mere presence of the leg irons was proof that a rape took place.

Fox was not interested in facts and justice at the trial of Brendan Dassey. He showed at the hearing that he is capable of fabricating facts.

Overall, the Judge Jerome Fox decision was very poor. I’m not sure why he had to ask for extra time to produce such a flawed finding.


References

updated 31 October, 2016 – added reference to judgement

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by Brian McCorkle
posted on 16 March, 2011 at 19:19 pm
in category Brendan Dassey

When Manitowoc County Judge Jerome Fox denied Brendan Dassey’s request for a new trial, he creatively invented facts that were false.


Dassey Audio, Video, and Transcripts

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