Brendan’s Writ of Habeas Corpus
We hear a lot about Steven Avery and his appeal process lead by Kathleen Zellner and people often wonder what’s going on with Brendan and his case. Currently, Brendan’s defense team filed a Writ of Habeas Corpus (a recourse in law whereby a person can report an unlawful detention or imprisonment before a court, usually through a prison official) and is waiting for an answer from the courts.
Below is the outline of the filings that was put together by Redditor Nexious. It’s a great summary but reading it may piss you off again!
On October 20, 2014, Brendan Dassey’s defense team filed a writ of Habeas Corpus in attempt of overturning his conviction at a federal level. [Full Document]
After three granted requests for an extension and over half a year later, the state submitted their rebuttal to this on May 4, 2015. [Full Document]
Brendan’s team submitted their reply on June 4, 2015. [Full Document]
This was the last motion filed in Brendan’s case, so it has been a waiting game for nearly a year now with no new activity. There is no given timeline or deadline as to when a ruling may come.
Below I have summarized the most noteworthy tidbits of information I’ve gleaned from reading through Brendan’s original writ of Habeas Corpus and the claims his team has made in attempts of overturning the conviction. Emphasis is mine.
BRENDAN DASSEY: MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS (October 20, 2014)
On Len Kachinsky and Michael O’Kelly
- Brendan repeatedly and consistently told Kachinsky that he was innocent and had falsely confessed.
- Over e-mail, Kachinsky and O’Kelly agreed that O’Kelly would interrogate Brendan on May 12, 2006 – the same day on which Kachinsky expected to (and did) lose his motion to suppress Brendan’s March 1 confession – because the blow of loss would render Brendan more vulnerable.
- Kachinsky canceled a scheduled visit with Brendan to make Brendan feel more “alone” for the O’Kelly interrogation.
- Previously, O’Kelly had sent an email to Kachinsky stating that Brendan’s family was “truly where the devil resides in comfort. I can find no good in any member. These people are pure evil…A friend of mine suggested ‘This is a one branch family tree. Cut this tree down. We need to end the gene pool here.'”
- The same day the judge denied the motion to suppress the March 1 confession, O’Kelly falsely told Brendan that he had failed a polygraph test.
- After O’Kelly got the written “confession” from Brendan on May 12, he called Kachinsky who immediately arranged for Brendan to undergo a second uncounseled police interrogation the very next day.
- Most of the above actions by Kachinsky and O’Kelly were not discovered until Brendan’s post-conviction evidentiary hearing.
- On May 5, 2006, Kachinsky sent an email to police and prosecutors indicating where he thought the murder weapon was hidden, without informing Brendan or obtaining his consent. The police did search for this weapon; the search turned up nothing.
- Kachinsky had made numerous pre-trial statements to the local and national media indicating that his client was guilty, including that Brendan—who, again, had done nothing but protest his innocents—was “remorseful” and that “there is, quite frankly, no defense.”
- Kachinsky took actual, real, and concrete steps to help the State and weaken his own client’s defense, including directing his investigator to coerce his client into confessing and then arranging for his client to undergo another round of uncounseled police interrogation with no protections in place—despite Brendan’s repeated insistence that he was innocent.
On the alleged plea bargain and theory that Brendan could had received a lesser sentence (as Kratz has repeatedly stated in the media recently)
- No plea offer was or ever had actually been on the table for Brendan.
- O’Kelly told Brendan repeatedly that he would get life in prison unless he confessed to him, in which case he would receive “twenty years” and get out of prison in time to “have a family”. The “twenty years” figure was completely made up by O’Kelly.
- No immunity arrangements, plea offers, or other safeguards were in place prior to his May 13 police interrogation.
- Kachinsky had explicitly agreed with the State that “no consideration” would be provided in exchange for Brendan’s second confession.
On the significant May 13 phone call Brendan made to Barb
- During the May 13 interrogation, police directed Brendan to admit guilt to his mother over the recorded prison telephones.
- Brendan to Barb: “Mike [O’Kelly] and Mark [Wiegert, one of Brendan’s interrogators] came up one day and took another interview with me and said because they think I was lying but…I would have to go to jail for 90 years… But if I came out with it I would probably get I dunno like 20 or less….They asked me if I wanted to be out to have a family later on…”
- The phone call was introduced by prosecutors during their cross-examination of both Brendan and Dr. Gordon to try and show he was not coerced into confessing.
- This call was the only piece of evidence prosecution had to try and account for Brendan’s alibi witness (Brendan told Barb on the phone that he was at Avery’s earlier and later). Mike Kornely had talked to Brendan on the phone at 6:00 p.m. right in the midst of the alleged crime [Brendan claimed during the March 1 interrogation that they carried Teresa to the fire at about 6:00 or 6:30 that evening.] Barb also stated she saw Brendan home at 5:00 p.m.
- At a post-conviction hearing, Brendan’s counsel testified that the call was “damning” evidence that they “couldn’t really come up with any way to defend against.”
On the police interrogations
- Brendan had been questioned by police on four separate occasions within a 48-hour window of time, including three times in a single day, with no attorney or interested adult present:
- 2006/02/27 – Mishicot High School
- 2006/02/27 – Two Rivers Police Dept.
- 2006/02/27 – Fox Hills Resort @ 10:50 p.m. (not recorded or transcribed)
- 2006/03/01 –Manitowoc County Sheriff’s Dept.
- Fassbender and Wiegert repeatedly conveyed to him that they were like father figures or protective parents to him and that he would be fine: “I’m a father that has a kid your age too. I wanna be here for you.” “Honesty is the only thing that will set you free.” “I’m thinkin’ you’re all right. OK. You don’t have to worry about things.” “There’s nothing I’d like more than to come over and give you ahug cuz I know you’re hurtin’.”
- No witness or shred of physical evidence had ever linked Brendan to Halbach’s murder, despite the largest investigation in Wisconsin state history. Brendan was safe from legal jeopardy unless he confessed.
- At least 21 times during the March 1 interrogation alone, Fassbender and Wiegert made repeated promises that they were “in his corner,” and would “go to bat” for him if he confessed, that they would “help you through this.”
- At least 31 times during the March 1 interrogation alone, Fassbender and Wiegert claimed they “already knew” what Brendan had done.
- According to Dr. Richard Leo, these false assertions from interrogators of having superior knowledge (i.e., “we already know the truth”) are “particularly influential on individuals who have low IQs, or who are juveniles, who…may be more gullible or easily lead or manipulated into confessing as a result of them.”
- Immediately before most of Brendan’s damning admissions, the police gave these false assurances that he would be OK.
- Right before he said he heard Halbach screaming from the trailer: “We already know, it’s OK. We gonna help you through this, alright?”
- Right before Brendan said that he saw Halbach restrained in his uncle’s bedroom: “We know you went back there. Let’s get it all out today and this will be all over with.”
- Right before Brendan said that he sexually assault Halbach: “We know what happened, it’s OK…it’s not your fault, he makes you do it.”
- The Wisconsin Court of Appeals stated in their original denial that the officers were merely “professing to know facts they actually did not have” during Brendan’s March 1 interrogation. However, it is shown in the video interrogation that they fed him real information they already had intimate knowledge of, some examples including:
- That Halbach was shot in the head, which they learned one day prior to his interrogation (“I’m just gonna come out and ask you. Who shot her in the head?”)
- Halbach’s body was placed in the rear cargo area of her vehicle
- Halbach’s body and clothing had been burned in the bonfire pit
- The license plates had been removed from Halbach’s vehicle
- Halbach’s cellphone, camera and purse were burned separately
On Brendan’s intelligence and suggestibility
- His I.Q. of 74 fell in the borderline to below-average range.
- He was enrolled in some special education classes.
- Psychological tests indicated that he was more suggestible than 95% of the population.
- “Brendan’s scores on Factor E and Factor H were also consistent with individuals who are suggestible…Brendan’s score was similar to individuals who are deferential, submissive, and humble…”
- ” …his scores were significantly elevated for both the Yield and Shift scores, again showing that he is significantly suggestible when presented with a situation that is comparable to a police interview regarding a crime scene…”
- ” …If he is presented with leading questions during an interview and/or presented with interrogative pressure, his personality…is very susceptible to suggestibility.
Specific Amendments Being Contested as Violated
Fifth Amendment Right – Sets out rules for indictment by grand jury and eminent domain, protects the right to due process, and prohibits self-incrimination and double jeopardy.
Sixth Amendment Right – Protects the right to a fair and speedy public trial by jury, including the rights to be notified of the accusations, to confront the accuser, to obtain witnesses and to retain counsel.
14th Amendment Right – Defines citizenship, contains the Privileges or Immunities Clause, the Due Process Clause, the Equal Protection Clause, and deals with post-Civil War issues.
So right now, it’s a waiting game. It is now up to the courts to make their next move but nobody really knows when they’ll do so.
You have to remember, Brendan’s appeals process is much harder because of the supposed “confessions” he made – even though it seems like an open and shut case, it’s not that easy. Hopefully this Writ of Habeas Corpus will help free him.