Dassey v. Dittmann

Filing 1

PETITION for Writ of Habeas Corpus filed by Brendan Dassey. ( Filing Fee PAID $5 receipt number 0757-1982263) (Attachments: # 1 Civil Cover Sheet, # 2 Memorandum in Support of Petition for Writ of Habeas Corpus, # 3 Exhibit - Transcript Decision on Motion to Suppress, # 4 Exhibit - Memorandum Decision and Order re: new trial and suppression hearing, # 5 Exhibit - WI Court of Appeals Decision, # 6 Exhibit - WI Supreme Court Order, # 7 Exhibit - Pidgeon v Smith, # 8 Exhibit - Thomas v McLemore, # 9 Exhibit - State v Wells, # 10 Exhibit - State v Robinson, # 11 Exhibit - Commonwealth v Schuler)(Nirider, Laura) Modified on 10/20/2014 (mec).

COURT OF APPEALS
DECISION
DATED AND FILED
January 30, 2013
Diane M. Fremgen
Clerk of Court of Appeals

Appeal No.

NOTICE
This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
A party may file with the Supreme Court a
petition to review an adverse decision by the
Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Cir. Ct. No. 2006CF88

2010AP3105-CR

STATE OF WISCONSIN

IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.

BRENDAN R. DASSEY,
DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Manitowoc County: JEROME L. FOX, Judge. Affirmed.
Before Brown, C.J., Neubauer, P.J., and Reilly, J.
¶1

PER CURIAM. Brendan Dassey appeals from a judgment

convicting him of first-degree intentional homicide, second-degree sexual assault,
and mutilation of a corpse, all as party to a crime. He also appeals from the order

No. 2010AP3105-CR

denying his motion for postconviction relief. Dassey contends that his pre-trial
and trial counsel provided ineffective assistance, that his confession was
involuntary and that, because the jury did not hear evidence of the unreliability of
his confession, the real controversy was not tried. He seeks a new trial and/or a
new suppression hearing. We reject his arguments, deny the requested remedies,
and affirm the judgment and order.
¶2

Sixteen-year-old Dassey and his uncle, Steven Avery, were charged

in the October 2005 sexual assault and murder of Teresa Halbach and with later
burning her body. After a nine-day trial, the jury returned guilty verdicts on all
three counts. Avery was tried and convicted separately. Postconviction, Dassey
moved for a new trial and a new suppression hearing. The trial court denied his
motion after a five-day hearing in a thorough, soundly reasoned decision. This
appeal followed. Additional facts will be supplied as warranted.
Voluntariness of Confession
¶3

On February 27, 2006, law enforcement officers conducted a witness

interview of Dassey at his high school and a second videotaped interview at the
Two Rivers Police Department. Dassey’s mother, Barbara Janda, agreed to the
second interview but declined the offer to accompany Dassey. On March 1, again
with Janda’s permission, officers retrieved Dassey from school for a videotaped
interview.

During the ride to the Manitowoc County Sheriff’s Department,

Dassey was read his Miranda1 rights and signed a waiver. Upon arriving, Dassey
acknowledged that he remembered the advisories and still wanted to talk to the

1

See Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2010AP3105-CR

interviewers. Dassey made several inculpatory statements over the course of the
three-hour interview, such that he now was viewed as a suspect. He was charged
two days later.
¶4

Dassey contends that his March 1 confession was involuntary and

should have been suppressed. He claims that law enforcement used psychological
interrogation tactics like fact feeding and suggestions of leniency that overbore his
will and exceeded his personal ability to resist due to his age, intellectual
limitations and high suggestibility.
¶5

In assessing voluntariness, “the essential inquiry is whether the

confession was procured via coercive means or whether it was the product of
improper pressures exercised by the police.” State v. Clappes, 136 Wis. 2d 222,
235-36, 401 N.W.2d 759 (1987). A prerequisite for a finding of involuntariness is
coercive or improper police conduct. Id. at 239. We evaluate a confession’s
voluntariness on the totality of the circumstances. Id. at 236.

Our analysis

involves a balancing of the defendant’s personal characteristics against the police
pressures used to induce the statements. State v. Jerrell C.J., 2005 WI 105, ¶20,
283 Wis. 2d 145, 699 N.W.2d 110. “This court will not upset a trial court’s
determination that a confession was voluntary unless it appears that the finding
was clearly erroneous,” nor will we substitute our judgment for that of the trial
court as to the credibility of disputed factual testimony. State v. Echols, 175
Wis. 2d 653, 671, 499 N.W.2d 631 (1993). Whether the facts as found constitute
coercion is a question of law that we review independently. See Clappes, 136
Wis. 2d at 235.
¶6

The trial court heard the testimony of Dassey’s mother, his school

psychologist and a police interviewer, and had the benefit of listening to the

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audiotapes and viewing the videotaped interviews. The trial court found that
Dassey had a “low average to borderline” IQ but was in mostly regular-track high
school classes; was interviewed while seated on an upholstered couch, never was
physically restrained and was offered food, beverages and restroom breaks; was
properly Mirandized; and did not appear to be agitated or intimidated at any point
in the questioning.

The court also found that the investigators used normal

speaking tones, with no hectoring, threats or promises of leniency; prodded him to
be honest as a reminder of his moral duty to tell the truth; and told him they were
“in [his] corner” and would “go to bat” for him to try to achieve a rapport with
Dassey and to convince him that being truthful would be in his best interest. The
court concluded that Dassey’s confession was voluntary and admissible.
¶7

The court’s findings are not clearly erroneous.

Based on those

findings, we also conclude that Dassey has not shown coercion. As long as
investigators’ statements merely encourage honesty and do not promise leniency,
telling a defendant that cooperating would be to his or her benefit is not coercive
conduct. State v. Berggren, 2009 WI App 82, ¶31, 320 Wis. 2d 209, 769 N.W.2d
110. Nor is professing to know facts they actually did not have. See State v.
Triggs, 2003 WI App 91, ¶¶15, 17, 264 Wis. 2d 861, 663 N.W.2d 396 (the use of
deceptive tactic like exaggerating strength of evidence against suspect does not
necessarily make confession involuntary but instead is factor to consider in totality
of circumstances). The truth of the confession remained for the jury to determine.
Alleged Ineffective Assistance of Pre-Trial Counsel
¶8

Attorney Len Kachinsky was appointed to represent Dassey shortly

after Dassey was charged in March 2006.

Dassey contends that Kachinsky

rendered ineffective assistance due to an “actual conflict of interest” that so

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No. 2010AP3105-CR

breached the fundamental duty of loyalty owed him that, under Cuyler v. Sullivan,
446 U.S. 335 (1980), and its progeny, prejudice can be presumed. We disagree.
¶9

Conflict of interest claims in criminal cases are analyzed as a form

of ineffective assistance of counsel. State v. Love, 227 Wis. 2d 60, 68, 594
N.W.2d 806 (1999). To prevail, the defendant must show by clear and convincing
evidence that counsel had an “actual conflict of interest”—i.e., that counsel “was
required to make a choice advancing his [or her] own interests to the detriment of
[the] client’s interests.” Id. at 71-72 & n.5 (citations and one set of quotation
marks omitted). Prejudice is presumed only if the defendant demonstrates that
counsel “actively represented conflicting interests” and that “an actual conflict of
interest adversely affected [counsel’s] performance.” Sullivan, 446 U.S. at 350.
“The possibility of conflict is insufficient to impugn a criminal conviction.” Love,
227 Wis. 2d at 68 (citing Sullivan, 446 U.S. at 350).
¶10

Dassey contends that Kachinsky: conceded that the March 1

interview was noncustodial; made statements to the media about the possibility of
a plea deal; directed his investigator, Michael O’Kelly, to gather further evidence
on the Avery property; shared information with the State that helped build its case
against Avery but which also implicated him because he faced party liability; and,
through O’Kelly’s duplicity,2 allowed another Dassey police interview on May 13
which resulted in a telephone confession to his mother. Dassey asserts that he at
least is entitled to a new suppression hearing because when he did not prevail at

2

O’Kelly told Dassey that his inconclusive polygraph results showed a ninety-eight
percent probability of deception.

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No. 2010AP3105-CR

the original hearing, his March 1 statement went on to become “the centerpiece”
of the State’s case.
¶11

Dassey draws no viable link between Kachinsky’s actions and any

demonstrable detriment to him. While Dassey contends that at least as of April
23, 2006, Kachinsky and O’Kelly began planning to gather evidence favorable to
the State and to extract a confession from him against his will, he identifies no
“adverse effect” at the May 4 suppression hearing. Kachinsky testified at the
Machner3 hearing that he hoped to get the best deal he could for Dassey and that,
knowing Dassey’s family was pressuring him, he mentioned the possibility of a
plea to the media to “send a message” to them that Dassey might have to “take a
legal option that they don’t like.” He also concluded that Dassey was properly
Mirandized before the March 1 questioning; the trial court agreed and successor
counsel likewise saw no meritorious Miranda issue.

The totality of the

circumstances also persuades us that Dassey was sufficiently aware of the
precustodial Miranda advisements after the nature of the interview changed. See
State v. Grady, 2009 WI 47, ¶20, 317 Wis. 2d 344, 766 N.W.2d 729.
¶12

The search warrant resulting from information given to the State

yielded nothing. The jury did view a brief video clip of Dassey’s post-interview
telephone conversation with his mother. Significantly, though, the State properly
introduced it only to rebut Dassey’s testimony on direct that the acts to which he
had admitted “didn’t really happen” and that his confession was “made up.”
Voluntary statements obtained even without proper Miranda warnings are
available to the State for the limited purposes of impeachment and rebuttal. See
3

See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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State v. Knapp, 2003 WI 121, ¶114, 265 Wis. 2d 278, 666 N.W.2d 881, vacated
and remanded by 542 U.S. 952 (2004), reinstated in material part by 2005 WI
127, ¶2 n.3, 285 Wis. 2d 86, 700 N.W.2d 899.
¶13

Kachinsky was long gone before Dassey’s trial or sentencing.4

Dassey has not convinced us that Kachinsky’s actions amounted to an actual
conflict and that Kachinsky’s advocacy was adversely affected, such that it was
detrimental to Dassey’s interests. He is not entitled to a new trial or hearing.
Alleged Ineffective Assistance of Trial Counsel
¶14

Dassey next submits that the representation by successor counsel,

Attorneys Mark Fremgen and Ray Edelstein, also was ineffective because they
failed to present substantial evidence that his March 1 confession was unreliable,
failed to retain an expert on coercive interrogation tactics, failed to present a part
of his confession suggesting recantation, and, in closing argument, conceded his
guilt to the corpse-mutilation charge. Once again, we disagree.
¶15

To prevail, Dassey must show that he was prejudiced by his

counsel’s deficient performance. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Counsel is deficient when the identified acts or omissions were
“outside the wide range of professionally competent assistance.” See State v.
Pitsch, 124 Wis. 2d 628, 637, 369 N.W.2d 711 (1985). Prejudice results when
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 642. “A reasonable
4

Kachinsky ceased representing Dassey eight months before Dassey’s trial began. He
withdrew after his performance was deemed “deficient” for arranging to have Dassey again
questioned by the State on May 13, 2006 and then failing to appear.

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No. 2010AP3105-CR

probability is a probability sufficient to undermine confidence in the outcome.”
Id. We “strongly presume” that counsel “rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” Id.
at 637. We need not address both prongs of the ineffectiveness analysis if the
defendant fails to make a sufficient showing on one. Strickland, 466 U.S. at 697.
¶16

Dassey complains that his counsel should have engaged in a point-

by-point attack on each of the nineteen details in his confession to demonstrate
that his knowledge came from external contamination such as fact-feeding by
police, exposure to media coverage and conversations with his family, rather than
personal knowledge.

It is unclear how Dassey thinks counsel should have

proceeded. He denied that he watched television coverage, does not establish
what facts he actually learned from other sources, repeatedly said he did not know
why he gave various answers and even told counsel he might have dreamed the
details or gotten them from a book. Under the circumstances, we are satisfied that
counsel’s performance was reasonable. See id. at 688.
¶17

Dassey also asserts that trial counsel should have introduced

evidence that his March 1 confession was unreliable, and likely false, by calling an
expert on police interrogation methods.

The failure was more egregious, he

claims, once counsel learned that the State had retained Joseph Buckley, a
prominent expert in that area and head of the firm that markets the “Reid”
interrogation technique. Although forensic psychologist Dr. Robert Gordon, the
expert the defense did retain, testified as to Dassey’s “high suggestibility” under
“mild pressure,” he lacked the credentials to testify about coercive police tactics.
¶18

Besides Dr. Gordon, Fremgen and Edelstein consulted with other

experts, including a Reid Institute-trained police officer and Dr. Lawrence White,

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No. 2010AP3105-CR

a professor of psychology and legal studies.

They ultimately decided not to

counter Buckley with an expert of their own. Fremgen was reluctant to engage in
a “battle of the experts” he was not certain they could win, and Edelstein thought
experts would detract from the defense strategy of trying to humanize Dassey.
Moreover, the State did not call Buckley, and Fremgen testified that retaining
White always was tied to responding to Buckley’s testimony. Had the defense put
White on the stand, the State could have called Buckley in rebuttal. We cannot
say that failing to call a false-testimony expert was “outside the wide range of
professionally competent assistance” evidence.5 See Pitsch, 124 Wis. 2d at 637;
State v. Van Buren, 2008 WI App 26, ¶19, 307 Wis. 2d 447, 746 N.W.2d 545.
¶19

Next, Dassey contends counsel ineffectively failed to play the

portion of a videotape, taken after his May 13 questioning, that contained this
spontaneous exchange with his mother:
BRENDAN: What’d happen if he [Avery] says something
his story’s different? Wh—he says he, he admits to doing
it?
BARB JANDA: What do you mean?
BRENDAN: Like if his story’s like different, like I never
did nothin’ or somethin’.
BARB JANDA: Did you? Huh?

5

At the postconviction motion hearing, police interrogation expert Dr. Richard Leo
testified in person about Dassey’s vulnerability to the police interview methods; Dr. White
provided similar testimony by affidavit. Noting that the trial court found that both would have
qualified as experts at trial and that at least some of their testimony would have been admissible,
Dassey contends that it was “manifestly unreasonable” not to call them at trial. In an ineffective
assistance claim, the question is not the admissibility of expert testimony but whether the failure
to attempt to introduce it was unprofessional error.

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No. 2010AP3105-CR

BRENDAN: Not really.
BARB JANDA: What do you mean not really?
BRENDAN: They got to my head.

Dassey asserts that the comments “not really” and “[t]hey got to my head” amount
to a recantation.
¶20

The defense team disagreed on the clip’s benefit. Fremgen feared it

depicted a parent who recognized that her child was involved in a serious matter;
Edelstein thought the jury should see it. Fremgen, as lead counsel, prevailed. The
trial court found that the exchange at best was ambiguous and at worst validated
Dassey’s confession. This finding is not clearly erroneous. Further, had the
defense played that clip, the State well might have played portions in which
Dassey nods “yes” when Janda asks, “Did [Avery] make you do it?” and, when
she asks, “What did he do to you to make you do it?” he answers, “Nothin’.” We
cannot say that Fremgen’s decision was unreasonable trial strategy.
¶21

Finally, Dassey contends that, without his consent, Edelstein

conceded the mutilation charge during closing argument. Edelstein told the jury
that Dassey went to Avery’s house expecting a Halloween bonfire and “probably”
saw something in the fire “and that something was Teresa Halbach.” Dassey
argues that Edelstein’s concession is the “functional equivalent of a guilty plea.”
¶22

We disagree.

“A guilty plea waives trial, cross-examination of

witnesses, the right to testify and call witnesses in one’s own defense, and the right
to a unanimous jury verdict of guilt beyond a reasonable doubt.” State v. Gordon,
2003 WI 69, ¶24, 262 Wis. 2d 380, 663 N.W.2d 765. Dassey exercised all of
these rights. Furthermore, Edelstein in no way conceded that Dassey mutilated,
disfigured or dismembered a corpse with intent to conceal a crime. See WIS.

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No. 2010AP3105-CR

STAT. § 940.11 (2009-10).6 Mere presence at a crime scene does not establish
party-to-a-crime liability. See State v. King, 120 Wis. 2d 285, 293, 354 N.W.2d
742 (Ct. App. 1984). Edelstein testified postconviction that, as the mutilation
charge carried the least penalty, he wanted to “provide that option to the jury.”
The trial court’s finding that counsel’s concession was a reasonable tactical
decision is not clearly erroneous. See Gordon, 262 Wis. 2d 380, ¶28.
Discretionary Reversal
¶23

Lastly, Dassey asks us to reverse his conviction in the interest of

justice, asserting that the real controversy—whether his March 1 confession was
reliable evidence of his guilt—was not fully tried. See WIS. STAT. § 752.35. We
decline to use our discretionary power of reversal so that Dassey may take a
different approach in a new trial when the defense that was presented was
competent, if unsuccessful. See State v. Hubanks, 173 Wis. 2d 1, 28-29, 496
N.W.2d 96 (Ct. App. 1992).
By the Court.—Judgment and order affirmed.
This

opinion

will

not

be

published.

See

WIS. STAT.

RULE 809.23(1)(b)5.

6

All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise

noted.

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