Here I am, because it is hard not to write something about the news last week that Brendan Dassey’s conviction was overturned. Dassey, for those of who you did not watch Netflix documentary Making a Murderer and are willing to take me at my word as to what you would have concluded if you did watch the show, is the only one of the two criminal defendants featured in the documentary who you could walk away from the show just absolutely certain that he did not do what he was convicted of doing. Dassey will be released from prison in a little less than three months if there is no appeal by the State.
Articles since Friday that I’ve seen discussing the development in Dassey’s case manage to work into the headline that the court (quite rightly of course) called out the conduct of Dassey’s former lawyer, the now infamous Len Kachinsky, as inexcusable. But, Kachinsky’s epic failings as a lawyer were not actually the justification for overturning the conviction — mostly it appears because Dassey’s current lawyers managed to miss the correct argument to make on that front.
Instead, it was the even more stomach-churning conduct of the police officers in obtaining the “confession” from Dassey that justified the federal court’s action. You can read the entirety of the 91 page order here if you’d like – though it is infuriating to relive the interrogation even in textual form.
But because Kachinsky really cannot get publicly lambasted enough for his conduct – after all he so very clearly wanted this case to make him famous and he’s gotten his wish though more in the manner that you see in dirty jokes involving genies in lamps with quite mischievous minds — I’ m doing my part by pasting below the pertinent parts of the opinion relating to discussion of just how far off the rails Kachinsky was in his handling of the matter (skipping a part that is really more about the equally vile Michael O’Kelley and his role). I’ve also edited out the internal citations to cut the length a bit.
C. Leonard Kachinsky, Pre-Trial Counsel for Brendan Dassey
1. Media Interviews
On March 7, 2006, attorney Leonard Kachinsky was appointed to represent Dassey. Kachinsky was excited to be involved in Dassey’s case because by then it had garnered significant local and national attention. Essentially immediately after his appointment Kachinsky began giving media interviews in which he discussed the case.
Kachinsky first met with Dassey on March 10, 2006. Dassey told Kachinsky that what was in the criminal complaint was not true and that he wanted to take a polygraph test to prove his innocence. After this initial meeting, local media reported Kachinsky as having described Dassey as sad, remorseful, and overwhelmed. The media reported that Kachinsky blamed Avery for “leading [Dassey] down the criminal path” and said that he had not ruled out a plea deal. Kachinsky later said that one of his reasons for speaking to the media was to communicate to both Dassey and to his family so that he could get them “accustomed to the idea that Brendan might take a legal option that they don’t like ….”
Over the next few days nearly all of Kachinsky’s work on Dassey’s case involved communicating with local and national media outlets. On March 17 Kachinsky appeared on Nancy Grace’s national television show. During that appearance Kachinsky said that, if the recording of Dassey’s statement was accurate and admissible, “there is, quite frankly, no defense.” Kachinsky later said that he was merely “stating the obvious.” However, Kachinsky had not yet watched the March 1 recorded interview. All he had seen was the criminal complaint.
In subsequent media interviews Kachinsky referred to the techniques the investigators used in questioning Dassey as “pretty standard” and “quite legitimate.” One local news broadcast included Kachinsky’s response to statements Avery had made to the media. Avery had said that he knew that Dassey’s confession must have been coerced because there was no physical evidence to support what Dassey had said. Kachinsky responded that he had reviewed the recorded statement and it did not appear that the investigators were putting words in Dassey’s mouth. Kachinsky also publicly refuted Avery’s statement that Dassey was not very smart and that it would be easy for law enforcement to coerce him.
In another interview Kachinsky said that, although he believed Dassey had some intellectual deficits, he also believed Dassey had a reasonably good ability to recall the events he participated in. Over the roughly three weeks following his appointment Kachinsky spent about one hour with Dassey and at least 10 hours communicating with the press.
Kachinsky met with Dassey again on April 3, at which time Dassey again professed his innocence and asked to take a polygraph examination. Kachinsky hired Michael O’Kelly, with whom he was not familiar, to conduct a polygraph exam. O’Kelly held himself out as a private investigator and polygraph examiner. Kachinsky informed Dassey of the upcoming polygraph examination in a letter, stating, “the videotape is pretty convincing that you were being truthful on March 1,” and encouraging Dassey not to cover up for Avery. Shortly before the polygraph examination, the prosecutor sent an email to Kachinsky expressing concern about the pretrial publicity that Kachinsky was engaging in and referring him to the relevant rule of attorney ethics governing such publicity.
2. Defense Investigator Michael O’Kelly
O’Kelly conducted a polygraph examination of Dassey, the results of which were inconclusive. Nonetheless, O’Kelly described Dassey to Kachinsky as “a kid without a conscience” or something similar. Notwithstanding O’Kelly’s opinion of Dassey, Kachinsky hired him as the defense investigator in the case.
Despite Dassey’s claims of innocence, both O’Kelly and Kachinsky proceeded on the assumption that Dassey would cooperate with the prosecution and become the key witness against Avery. O’Kelly’s primary goal was to uncover information that would bolster the prosecution’s case. To this end he purportedly developed information as to the possible location of certain evidence. Kachinsky provided this information to the prosecutor and a lead investigator and informed them that they may wish to speak to O’Kelly. Although the information led to a search warrant being issued, the search warrant did not yield any additional evidence against Dassey.
Kachinsky decided that he wanted O’Kelly to re-interview Dassey to get him once again to admit to his involvement in the rape, murder, and mutilation of Halbach. Kachinsky wanted to make it clear to Dassey that, based upon the evidence, a jury was going to find him guilty. Toward that end, he chose May 12 as the date for O’Kelly to interview Dassey—the date a decision on Dassey’s motion to suppress his March 1 confession was scheduled to be rendered. Kachinsky expected to lose the motion to suppress and believed that the effect of losing such a crucial motion would leave Dassey vulnerable.
Shortly before meeting with Dassey, in an email to Kachinsky O’Kelly expressed contempt for the Avery family. He referred to the Avery family as “criminals” and asserted that family members engaged in incestuous sexual conduct and had a history of stalking women. He continued, “This is truly where the devil resides in comfort. I can find no good in any member. These people are pure evil.” O’Kelly quoted a friend as having said, “This is a one branch family tree. Cut this tree down. We need to end the gene pool here.” O’Kelly thought that Dassey’s denial of his confession was an “unrealistic” “fantasy” that was influenced by his family. On O’Kelly’s recommendation, Kachinsky canceled a planned visit with Dassey because Dassey “needs to be alone.” O’Kelly said, “He needs to trust me and the direction that I steer him into.”
After the interview was concluded, Kachinsky understood from O’Kelly that Dassey was now “on board with cooperating in the Avery prosecution and, ultimately, entering a plea agreement.” However, Kachinsky had not watched O’Kelly’s interview of Dassey. Nevertheless, he approved of O’Kelly communicating the substance of his taped interview of Dassey to the prosecution’s investigating agents.
3. May 13, 2006 Interrogation
Following the O’Kelly interview, Kachinsky arranged for the state’s investigators to interrogate Dassey again. Kachinsky did not attend the interrogation. The state had not made any offer of immunity or prosecutorial consideration. Kachinsky did not prepare Dassey for the interrogation, trusting O’Kelly to do so. The plan was to have O’Kelly watch Dassey’s interrogation from a separate monitoring room. Kachinsky instructed O’Kelly not to interrupt unless Dassey asked to speak with Kachinsky or otherwise asked to stop.
Although it probably does not need to be stated, it will be: Kachinsky’s conduct was inexcusable both tactically and ethically. It is one thing for an attorney to point out to a client how deep of a hole the client is in. But to assist the prosecution in digging that hole deeper is an affront to the principles of justice that underlie a defense attorney’s vital role in the adversarial system. That said, Dassey’s attempt to characterize Kachinsky’s misconduct as a conflict of interest under Sullivan is misplaced.
And, of course, Kachinsky has now weighed in with the media about his thoughts on the reversal. Unbelievably, he’s going with trying to take a little credit for it and claim it vindicates his efforts:
“In the sense that [the confession] was an instance that I preserved for appeal, before I was off the case, I was in sense gratified because the fact that that was the basis for magistrate judge Duffin’s decision, it shows that I did my job,” Kachinsky said. “Without a confession, the state didn’t really have anything of a case. It was an issue that was clearly available to appeal.”
And, in excellent news for residents of Appleton, Wisconsin – he’s still licensed and in good standing.