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How Brendan Dassey’s Conviction Was Overturned: Why You Should Hire a Good Criminal Defense Lawyer

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In 2005, 25-year-old photographer Teresa Halbach was killed in Manitowoc County. She disappeared after traveling to Steven Avery’s family’s salvage yard to take photos for a magazine. Her burned body was recovered in the yard, in a burn pit.

In 2007, Steven Avery and Brendan Dassey — who both lived on the salvage yard property — were convicted and both were sentenced to life in prison for the crime. In August 2016, Dassey’s conviction was overturned by a federal judge in Milwaukee, who concluded Dassey’s rights were violated during the interrogation process, which resulted in his confession.

Dassey was 16 years old at the time of the murder and is Avery’s nephew. He and his uncle were tried separately, and Dassey’s case hinged on his confession while DNA evidence was used to tie Avery to the murder. Now that Dassey’s conviction has been overturned, prosecutors may decide to retry him. It is possible the case will find its way to the federal appeals court in Chicago. If prosecutors do not appeal within 90 days of the overturning of the conviction, Dassey will be able to go free.

Since the two trials were separate and since different evidence was used in both cases, on the surface it does not appear the Dassey case will have an impact on Steven Avery’s case. However, Avery’s attorney claims there is new evidence to exonerate Avery and action may be sought in that case in an effort to overturn that conviction as well.

Details of the Cases

Dassey was convicted of first-degree intentional homicide, mutilation of a corpse and second-degree sexual assault. Attorney Bob Dvorak of Milwaukee has been instrumental in working to overturn the conviction. In addition, attorney Steve Drizin has been Dassey’s defense attorney and reported feeling “beyond excited” by news of the conviction being overturned.

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Avery was convicted of being a party to first-degree intentional homicide and was sentenced to life in jail. He remains in prison, and his attorney is working towards an appeal. Avery has contended since his first trial that police planted evidence at his trailer and used his DNA from an earlier arrest to plant physical evidence at the scene. He and his attorneys have further alleged that a judge incorrectly replaced a juror during the trial and that police searched his trailer illegally. Appeals based on these claims were rejected in 2011.

When U.S. Magistrate Judge William Duffin overturned the conviction, he noted that Dassey’s defense attorney in 2007, Len Kachinsky, acted in a way that amounted to “misconduct” that was “indefensible.” Duffin also found the conviction was not valid because it was based on a confession that was “involuntary.” The judge found interrogators made “false promises” to Dassey to encourage him to confess and that the man’s “intellectual deficits” and age also contributed to the “involuntary” confession.

How Will Steven Avery’s Case Be Impacted?

While Avery’s case may not be directly impacted by Dassey’s overturned conviction, defense attorneys for Avery are happy to see Dassey’s imprisonment questioned. It could help cast questions on both cases. At the time Avery was arrested for the murder of Halbach, he had been involved in a civil suit against Manitowoc County, the county sheriff and the former DA for wrongful imprisonment after serving 18 years in a sexual assault case. Avery was exonerated by DNA evidence in that case and sought $36 million in a lawsuit.

Documentary filmmakers, Avery and Avery’s attorneys have suggested the lawsuit could be one reason why Avery was arrested and charged with Halbach’s murder. Avery has claimed police had DNA evidence from him from the earlier case and planted this evidence at the Halbach crime scene. He has also alleged police and the county were embarrassed by the earlier case and the lawsuit since the previous false conviction highlighted the inefficacy of prosecutors and police in handling eye witnesses and evidence.

In January 2016, attorney Kathleen Zellner took on Avery’s case and will be working towards appealing his conviction. Since Dassey did not testify against Avery and since his confession was not used in Avery’s trial, the overturning of the conviction may not have a direct impact. However, there is no doubt that the spotlight on the case may fuel Avery’s defense in seeking their own appeals.

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Zellner was granted an extension for filing an appeal in the case. She has also remained active on social media and in traditional media, outlining her work in the case and keeping the case in front of the public eye. She has also alleged police corruption in her social media accounts and has claimed she has evidence “cops made up crime evidence” in Avery’s case. She has further stated she wants the DNA and blood found at the scene of the crime to be tested, alleging that if the physical evidence is from 1996 or before, it is proof the evidence was “planted.”

The Dassey case could also have other indirect impacts on Avery’s appeals. When Prosecutor Kenneth Kratz first announced Avery’s trial, he noted there was only “one man” responsible for the death of Teresa Halbach. After Dassey’s confession, he changed his wording to include two alleged killers. Kratz went on to act as prosecutor for Dassey, using the physical evidence from Avery and the confession in the trial. The language and the questioning of Dassey’s trial could cast doubt on Avery’s case.

“Making a Murderer”: Season 2

Avery and Dassey were featured in the Netflix documentary “Making a Murderer.” The documentary’s makers claim a juror from Avery’s case alleged Avery was not guilty but still chose to find him guilty out of concerns for personal safety. The filmmakers may seek out additional jurors to learn their opinion and views on the case.

The documentary series brought international attention to the cases and fueled theories that the convictions were a way to stop the expensive lawsuit Avery was filing against the state. The series further created support for Dassey and even Avery, making them both a type of celebrity. While police, investigators and prosecutors in the case were publicly criticized after the documentary, Dassey has received messages of support.

Season two of the series has already been announced and will continue to focus on Avery and Dassey. Filmmakers have said the second season will focus on Avery and Dassey’s life since 2007. The series may focus on Avery’s life in Waupan Correctional Institution, where he is serving his sentence, as well as on continued efforts to appeal the decision in his case. Dassey, who is now 26, has had his life changed by his time in jail, and his life after the conviction will also reportedly be a focus of the film.

What Made the Defense Attorneys in This Case Effective?

Overturning the conviction was a collaborative effort. In 2014, the Center on Wrongful Convictions of Youth legal team, based in Chicago, sought to be granted a writ of Habeas corpus for Dassey in federal court. This would have compelled the government to review the case to determine whether Dassey had been illegally imprisoned.

Dassey attorneys Dvorak and Drizin spent years on the case, investigating Dassey’s case for two years first. They filed an appeal before a state appellate court in 2010, but the appeal was denied. The Wisconsin Supreme Court also refused to hear the case. In 2014, they filed a habeas petition in federal court.

The efforts of the attorneys largely focused on the actions of Len Kachinsky, the defense attorney Dassey originally had in his case. Kachinsky was eventually removed from the case, but before he was, argued Dvorak and Drizin, he harmed Dassey’s case by remaining willing to work with the prosecution to get Dassey to testify against his uncle. According to the attorneys, this amounted to “disloyalty” to Dassey. U.S. Magistrate Judge William Duffin agreed with the attorneys when he overturned Dassey’s conviction, noting Kachinsky‘s actions in the case amounted to “misconduct.”

Kachinsky worked with prosecutors and investigators to gather evidence against Avery and was dismissed from Dassey’s case only after arranging a private meeting between Dassey and investigators. The public defender who took over Kachinsky sought to have the confession suppressed, but Manitowoc County Judge Jerome Fox — who had dismissed Kachinsky from the case — denied the motion. The judge also denied Dassey’s appeal in 2010. In 2013, Judge Fox’s decision was upheld by the Wisconsin Court of Appeals. U.S. Magistrate Judge William Duffin’s decision ultimately concludes that these courts were not correct — a rare ruling. In most cases, it is harder to secure an appeal or an overturning of a conviction later in the process. Most federal habeas corpuses are not granted, since most courts will keep convictions by jury trials intact, according to attorney Erica Suter.

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Dvorak and Drizin also focused their efforts on the confession Dassey gave. Dassey’s confession was the main evidence used against him, as physical evidence did not link him to the killing. However, Dvorak and Drizin presented evidence that interrogators “fed” Dassey facts during the interrogation leading to his confession.

Notably, when asking Dassey for details, they continued to ask him questions related to specific body parts. After Dassey told investigators he stabbed Halbach in the stomach, for example, investigators asked what happened to her head. Dassey told interrogators he cut the woman’s hair. It was only when asked “Who shot her?” that Dassey told them Avery had shot her. He did not mention any shooting before that. In addition, Dassey changed his story during his confession. He initially told interrogators Avery showed him Halbach’s body in the car, after she had already been raped and stabbed. As investigators continued to question him, Dassey eventually told them he himself had raped Halbach while she was handcuffed to Avery’s bed and had seen Avery stab the woman himself.

Originally, the investigation of Dassey was led by the Manitowoc County Sheriff’s Department, but eventually the Calumet County Sheriff’s Office took over after it was determined the Manitowoc County Sheriff’s Department had a conflict of interest due to Avery’s lawsuit against them. Between February and March 2006, Detectives Mark Wiegert and Tom Fassbender from the Calumet County Sheriff’s Office questioned Dassey on four occasions. His mother was not in the room, because she claims she was discouraged from being there. Dassey’s attorney at the time, Kachinsky, was also not in the room during the interrogations.

The interrogations were videotaped, and U.S. Magistrate Judge William Duffin focused on the fourth interview in his decision to overturn the conviction. He noted interrogators told Dassey they were on his side “no matter what you did” and that honesty “is the only thing that will set you free.” Judge Duffin noted this slight change to a popular idiom could confuse Dassey due to his intellectual ability. In fact, videotapes show Dassey seemed unsure of the consequences of his words to investigators. He asked when he could leave and after the confession he seemed not to understand he was being arrested for murder. He spoke of a school project he had due the next day and asked whether the arrest would be only for “one night.”

Dassey’s age at the time and the fact that he is a slow learner were also not taken into account during the interrogation process, according to Dvorak and Drizin. The attorneys noted that interrogators made false promises to Dassey before his confession, telling him they already knew what happened and telling him he had “nothing to worry about” by giving his confession. This, paired with Dassey’s age and IQ of 76, meant he was “coerced.” Dassey later claimed he made things up during his confession. U.S. Magistrate Judge William Duffin agreed when overturning the conviction.

While Dvorak and Drizin don’t think “Making a Murderer” affected the decision to overturn the conviction, the documentary created a context for the case and brought attention to the trials. Certainly, in the minds of the public, it raised questions about the conduct of those involved in Avery’s and Dassey’s trials.

What Are Dassey’s and Avery’s Legal Options Now?

Dassey’s legal team have already stated they may seek to have Dassey released on bond, depending on what state prosecutors do. Avery’s attorneys are still seeking to have his conviction overturned, based on new evidence they claim has been brought to light.

As of September 2016, no suggestions of a civil suit have been made. However, if Dassey was treated unethically by investigators and negligence or misconduct are found to have played a role in his conviction, he may have a civil claim against Calumet County Sheriff’s Office and others. If Avery’s conviction is overturned and he and his attorneys can also claim negligence or misconduct, he may also have a civil claim.

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Court-Appointed Attorneys vs. Criminal Defense Lawyers: Would That Have Made a Difference?

The criminal defense lawyers originally assigned to Dassey’s were public defenders. A criminal defense attorney is a constitutionally protected right, but most public defenders take on considerable caseloads, and many accused individuals seek out defense attorneys at their own expense or through advocacy organizations. In the Dassey case, it was an advocacy group and dedicated trial attorneys who continued to fight for him after his conviction.

If you are looking for Texas criminal defense lawyers, contact Morales & Sparks to speak with a legal team knowledgeable in federal and Texas criminal defense laws and best practices.

Disclaimer: The purpose of this post is to provide general information and is not to be constituted as legal advice. If you need help with a specific issue, please seek the advice of an attorney.