Last week, episode 9 closed with a comment from Avery defense counsel Dean Strang which I think sums up all of the conclusory presumptions of this “documentary”.
By Pat Merriman
Dunn Co. State’s Attorney
Strang solemnly intoned that the American criminal justice system was a joke because of the “absolute certitude” that jurors, judges, and prosecutors have that they are “right.” There is a “tragic lack of humility” according to Strang. And, what exactly would a world driven by defense attorneys, presumably the only part of the system that isn’t broken, look like? An accused would no longer be presumed to be innocent with the burden being proof beyond a reasonable doubt; the presumption of innocence would be supreme with the burden of “absolute certitude”. You know…the Bart Simpson defense: you didn’t see me, I won’t confess, so, it never happened. Who are you going to believe? Me, or, your lying eyes? Criminals rule the earth like the ancient dinosaurs, and, the rest of us are just out of luck, right, Mr. Strang?
This last episode, entitled Fighting for Their Lives, is, perhaps, the most bizarre part of this mockumentary. What Netflix has proved is that the American, salacious appetite for reality TV (read that as voyeurism) may, very well, have no limit. Ain’t nobody fighting for their life—Wisconsin doesn’t have a death penalty and Teresa Halbach already got her death sentence from, at least, Steven Avery. The constant use of the given names “Steven” and “Branden” are used continuously in this episode to humanize these two criminals. All of the arm chair, Monday-morning quarterbacking by these innocence project types from Chicago is stomach churning too. A whole state away, albeit a state which prohibits private ownership of guns and gave us Barrack Obama, so, perhaps they can afford to let Avery loose over there. He would fit right in. Regardless, local Manitowoc disc jockey Mike Kinzel sums up the local attitude best, “folks around here think they got what they deserved.” Amen.
Both Avery and Dassey get their free lawyers and in true—they eat their own kind form, the attacks on the trial lawyers (a post-conviction relief “PCR” hearing) by the new lawyers begins. Unfortunately for Avery, his trial attorneys did precisely what he told them to do and, there is no reason for Judge Willis to overturn his conviction. Next up is Dassey’s PCR which is salaciously troweled out as an attack on Len Kachinski and his investigator Michael O’Kelley. As if they were the cause of this young man’s demise. And, folks, this is a thorny issue so it needs to be analyzed slowly. Legally, Brendan Dassey was a juvenile. Under the law, the person(s) who bear primary responsibility for protecting him are his parents. Here, his mother Barb Tadych. Attorney Len Kachinski, ultimately, correctly, saw this case for what it really was—a heinous murder in a small community where everyone knew what type of guy Steven Avery was and, his client had already confessed to the rape, murder and disposal of Halbach’s body.
Remember, by the time Kachinski got involved: Halbach is missing (10/31/05), Dassey has already been contacted by Manitowoc County and denied seeing anything (11/01), Bobby Dassey relates to authorities that Avery asked him and his friend Mike Osmondson to “help him get rid of the body” (11/03), Avery has lied about his contact with Halbach on Halloween (11/03), Halbach’s RAV-4 has been recovered (11/05), Dassey vacillates on his original statement—he MAY have seen Halbach on Halloween (11/06), Avery is arrested for felon in possession of a firearm and a DNA swab is taken (11/09), human remains are located on Avery’s property (11/10), Avery’s preliminary hearing is held (12/06), the FBI determines that the human remains are Halbach (01/19/06), Detective Wiegert re-interviews the Avery family and Dassey’s cousin Kayla Avery tells them he was involved in the killing (02/20), and Dassey implicates himself (with his mother’s permission) to BCI (02/27). Folks, Len Kachinski was not appointed to represent Dassey until his felony arraignment on March 3, 2006. Brendan Dassey had already hanged himself (with his mother’s prompting) BEFORE Kachinski or O’Kelley ever came into the picture. The PCR court agreed and, the public slamming of Kachinski aside, that is the hole that Dassey found himself in at trial.
Kachinski’s strategy… his “duty of loyalty to his client”, complete with Tadych’s approval initially, was to get the best deal for Dassey which could be negotiated. In retrospect, a great idea! And, that is precisely what O’Kelley was tasked to do—represent his client’s best interests by minimizing his exposure. Get his client the best “deal” possible which excluded life in prison without parole. It’s done every day. And, inexplicably to me, that strategy changed with disastrous results at Barb Tadych’s prompting. Something Dassey’s NEW lawyers gloss over with the “Braden had a gentlemen’s agreement with these investigators” and they violated it ploy. Especially disingenuous after the telephone call between Tadych and her son on May 15, 2006.
The gratuitous swipes against Ken Kratz in October, 2009-10 (over 3 years after these convictions), about being a “pervert” or having a drug problem means what, in relation to these two convictions, Netflix? Oh, I get it…you quoted Kratz at the start of this episode saying, on March 18, 2007 “this proves what kind of person Steven Avery is”. So…you want to show what kind of person Kratz is. OK… but, what the heck does that have to do with Avery’s and Dassey’s convictions exactly? Kratz did his job and, now, these 2 get a do-over because their specially-appointed prosecutor had a screwed up personal life? Sadly, Brendan Dassey got a life sentence, albeit, with the possibility of parole in his 50’s. But, remember, this documentary never really talks about his “guilt”, they just want to talk about the process that got him convicted. And, that’s what I would like to address.
In People magazine, on December 30, 2015, “Steven Avery Prosecutor Feels Sorry for Brendan Dassey: ‘He Would Never Have Been Involved Except for His Uncle'”. And, I agree with Ken Kratz, “I have a great bit of sympathy for Brendan Dassey… He never would have been involved in this except for his uncle. When his uncle handed him the knife he ensured that he’d be a part of this murder as well.” And, folks, that is the truth of it. Len Kachinski and Michael O’Kelley did NOT ruin Brendan Dassey’s life. His own uncle and mother did that for him. Kratz confirms Kachinski’s concern for his client too by the way, “Kachinsky was truly trying to help his client secure a plea bargain when he allowed investigators to question Dassey alone. Dassey was really in a good position to not only once and for all tell people how Steven was involved, but he could have gotten a significantly reduced sentence had he accepted the plea bargain.” Amen.
So, in my humble opinion, the real story here is NOT how a young kid was victimized by the system but, rather, how he was railroaded by his family who were only concerned about Steven Avery and, most likely, the millions he stood to collect. Kratz continues, “It was Dassey’s family who coerced him into recanting… It was awfully clear to us that he was involved, but, his family was telling him, ‘You tell the court that they made you say these things…’ Brendan would have been out soon with Kachinsky’s help.” With friends like these, who needs enemies, right? And, Michael O’Kelley (a veteran investigator too) had another observation in the infamous email to Kachinski on May 9, 2006, “I am learning the Avery family history and about each member of the Avery family. These are criminals. There are members engaged in sexual activities with nieces, nephews, cousins, in-laws. Customers or their relatives unwittingly become victims of their sexual fantasies. This is 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.'”
Harsh? Maybe, but, at the end of the day, there was also some $36 million in play for the Averys at one point. And, even Brendan Dassey’s trial lawyer Mark Fremgen got it, when he said, in closing argument, “Brendan couldn’t pick his parents.” So, to close this unsavory mess, two comments. First, when did we all become so fascinated with this trash? It seemed to start with the show Roseanne back in 1988 and the subsequent 9-year melt-down of comedienne Roseanne Barr, speed up with “reality” shows like Keeping Up with the Kardashians and hit new lows with low-brow sitcoms like Two and a Half Men.
This Netflix documentary hi-lights why voyeurism has to stay out of our criminal justice system too. The stakes are too high for the accused. Which brings me to my second point—if Brendan Dassey’s mother had listened to Len Kachinski, he would NOT be serving a life sentence right now. That came from the prosecution’s own mouth. At the end of the day, and all the salacious tidbits tossed out by Netflix aside…this kid should have gotten a term of years and had some life to live afterwards. It’s been 9 years. Maybe, a court will grant a new trial and, you know what, a plea bargain to time served might not be such a bad result. But, heck, just one small voice crying in the oil patch. Thank you for your time and attention. I’ll have one final comment next week.