"Rebutting a Murderer" Episode 4: Unreasonable Reasoning

Brendan Dassey is flying high.  His legal team has just pulled off what it considers a miracle, getting a federal magistrate judge to overturn his conviction.

Steven Avery is flying high, too.  He has a new girlfriend and a new lease on life with a new attorney.

Things are looking up for both of them since it’s looking like only a matter of time before they’re both out of prison.

But as usual, “Making a Murderer’s” fourth episode doesn’t tell the whole story.

I’m Dan O’Donnell and this is Rebutting a Murderer.


Dassey is getting ready to leave prison after a ruling by federal magistrate judge William Duffin in the Eastern District of Wisconsin vacated his conviction, a decision applauded by Dassey’s current and former attorneys alike.

"Brendan's odds of getting a successful habeas corpus petition were low and I was surprised by Judge Duffin's ruling," says Len Kachinsky, Brendan’s former lawyer and a primary villain of “Making a Murderer’s” first season.  "I guess that Brendan's good fortune."  

He's absolutely correct.  Dassey did get lucky and Duffin’s ruling was surprising—because of how badly it misinterpreted the facts of the case and the applicable law.

"Judge Duffin took a few potshots at me," Kachinsky adds.  "His comments about my performance on certain things being indefensible I respectfully disagree.  So in a sense I was relieved that he found that the portions that were alleged to be ineffective were not valid arguments for giving Dassey a new trial." 

In his lengthy decision, Duffin did indeed rule against Dassey’s claim of ineffective assistance of counsel; rejecting the argument that Kachinsky was somehow a secret agent of the prosecution working to get Dassey to admit to a crime he didn’t convict. 

It was the only one of Dassey’s arguments that Duffin rejected, and when the State of Wisconsin appeals his decision to the Seventh Circuit Court of Appeals, “Making a Murderer’s” fourth episode presents this as somehow a shocking and unprecedented miscarriage of justice.

"They don't got nothing on me," Brendan says in a phone call to his mother, Barb Tadych, from prison.

"The state knows that you're innocent," she replies.  "They're just f***in' ya, that's all.  They're probably just gonna try holding you as long as they can."

Of course, “Making a Murderer” never gets into the details of Duffin’s ruling or why the state really appealed it—because it was supported almost entirely by nothing more than Duffin’s own personal opinion.

Nowhere is this more evident than when he rejects Dassey’s ineffective assistance argument, writing:

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 is literally nothing more than Duffin’s opinion; a lament that while the law won’t let him agree with Dassey, he really, really wants to.  Even more shockingly, in his opinion he gives Dassey legal advice for a potential appeal:

[F]ederal law prohibits the court from granting Dassey habeas relief on this claim. Although Kachinsky’s misconduct might support a claim for relief under Strickland v. Washington, Dassey never made this argument to the state courts or to this court.

What is he saying other than, “Hey Brendan’s attorneys, you haven’t made this argument, but you probably should because it might work!”

This unacceptable bias toward Dassey informs the rest of Duffin’s opinion.  He even cites a book written by Dassey’s attorney Steven Drizin to support his conclusions about false confessions:

Intuitively, one would not expect Dassey to provide the level of detail he did on March 1 had he not been involved in the events he described. The prosecution emphasized as much in its closing argument: “People who are innocent don’t confess in the detail provided to the extent this defendant provided it. They don’t do that.” (ECF No. 19-23 at 144.) Research, however, shows that some people do make detailed confessions to crimes they did not commit. (ECF No. 19-27 at 202-08); see also Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 933-43 (2004).

In what possible way is it acceptable for a judge to cite as unbiased evidence a book written by one of the attorneys before him?  In what possible way is Duffin giving equal weight to the prosecution’s and defense’s arguments about false confessions when he cites the defense attorney’s book as evidence?

One wonders how “Making a Murderer” would have dealt with the Seventh Circuit Court of Appeals citing Ken Kratz’s book in striking down Duffin’s ruling.  And the Seventh Circuit most certainly did strike down Duffin’s ruling; finding that he misinterpreted both the standard for granting habeas relief and that Dassey’s confession was voluntary...regardless of what his attorney’s book says.   

"I was hoping that it would come true," Tadych tearfully tells the "Making a Murderer" cameras.

"They get your hopes up and then they slap you in the face again," adds her husband, Scott Tadych.

The only slap was the one the Seventh Circuit gave to Duffin’s ruling on false confessions.  While Duffin held that no reasonable court could have possibly ruled in the same way Dassey’s trial court did because his confession was coerced, the Seventh Circuit noted that “The Supreme Court has considered and rejected claims similar to Dassey’s, and Supreme Court cases do not require relief here.”

Judge Duffin couldn’t possibly consider the United States Supreme Court an unreasonable court, and thus the Seventh Circuit ruled that “the Wisconsin courts did not apply the law unreasonably in finding that Dassey’s confession was voluntary.”

In his ruling, Duffin is forced to admit that the investigators did not yell at, threaten, or physically assault or intimidate Dassey in any way and since these are generally the standard forms of conduct that render a confession involuntary, Duffin needed to get creative.

He claimed that because the investigators repeatedly told Dassey “It will be okay, just tell us what happened,” they were making false promises to him.  Nope.  The Seventh Circuit ruled that “The Supreme Court has not treated general assurances of leniency in exchange for cooperation or confession as coercive.”

Duffin claimed that the state courts unreasonably interpreted the investigators’ tactics as not coercive. Nope again.  The Seventh Circuit ruled that just because “the state courts did not view these tactics the same way, their view was not unreasonable.”

The state courts saw and read, as we have, exactly what the questioners told and asked Dassey in the interview and how he responded.  AEDPA leaves room for reasonable disagreement between state and federal courts.  Disagreement on a particular judgment call does not show that the state court found the facts unreasonably.      

Here the Seventh Circuit is striking down Duffin’s interpretation of both AEDPA and controlling precedent and admonishing him for substituting his own opinions on how courts should view the reliability of confessions for relevant case law dictating how they must view the reliability of confessions.

Reasonable disagreement, the Seventh Circuit is telling Duffin, is not an unreasonable finding just because you want it to be.

"I knew that if there was another season of the documentary, I was going to be in it as Steven's girlfriend," says Avery’s now former fiancée Lynn Hartman.

“Making a Murderer” presents this stunning admission as a bombshell dropped on the lovelorn convict by a cold, calculating, money-grubbing, fame-hungry monster.

And she very well may be, but again, “Making a Murderer” doesn’t tell the full story.

Hartman now says she is so scared of Avery that she has blocked his prison’s number and is in fact the third of four of Avery’s most significant significant others to claim that he is a violent, unstable person.

Avery’s ex-wife, Lori Mathieson, divorced him when he was falsely imprisoned for the rape of Penny Beernsten in 1988.  During the proceedings and afterwards, Mathieson claimed Avery sent her threatening letters from behind bars threatening her life and the lives of their children.

“I hate you, you got your divorce now you will pay for it,” Avery wrote.  “If you don’t brang up my kids I will kill you. I promise. Ha. Ha.”

Strangely enough, Mathieson ended up marrying Peter Dassey, Brendan Dassey’s father.

Years later, during the filming of “Making a Murderer’s” first season, Avery dated Jodie Stachowski.  She now claims that she only said he was innocent on the show because Avery was repeatedly threatening her with violence if she didn’t.

She believes wholeheartedly that he killed Teresa Halbach because, as she told TMZ.com, he wanted to tie her to a bed and have sex with her in the exact same manner Brendan Dassey told investigators he and Avery raped Halbach.

Stachowski even showed TMZ a threatening letter Avery sent her in August of 2015 in which he demands that she pay him “for all the money that I spent on you” — or he will “put you in Taycheedah Correctional Institution”—Wisconsin’s women’s prison.  He continues: “You are no good, and you say I am trouble — but you are trouble. You are just a drunk on the road.”

Avery was thus threatening, terrifying, and at the very least verbally abusive towards two fiancees and a wife, revealing a telling pattern of behavior whose dots “Making a Murderer” just isn’t interesting in connecting.   

"While I'm waiting for a response from the prosecution to my motion for scientific testing, I want to keep the rest of my investigation going," Kathleen Zellner says, and for her this means a renewed focus on a possible pelvic bone found amid a number of animal bones in the Radandt quarry next to the Avery scrapyard.

"Didn't they also confirm that those bones had been cut?" she asks one of her assistants.

"Yes, there are cut marks on those and there are also cut marks on bones found in the burn barrel."

Now that pelvic bone has never been proven to be from a human being and since it was found near a number of other animal bones, it is entirely likely to be an animal bone, too.  The cut marks, then, wouldn’t be evidence of a murder cover-up, but rather of a hunter skinning a kill.

Zellner then meets with Josh Radandt on the Radandt quarry to question him about the fire he told investigators he saw coming from the Avery property the night Halbach was killed.  Without any evidence other than that his property is next to Avery’s, both Zellner and “Making a Murderer” strongly imply that Radandt might be the real killer before both pivot when Radandt claims investigators pressured him into changing his story about the fire.

"Did the cops ever come back and ask you anything about that?" Zellner asks.

"They did and I was getting frustrated at a point because it was almost as if they wanted me to change what I had seen," Radandt says.

On top of that, he claims that investigators told him that Teresa Halbach’s SUV had been driven on his property, something the prosecution allegedly never shared with the defense. 

Under the Supreme Court’s decision in Brady v. Maryland, prosecutors violate a defendant’s due process rights if they fail to share with him potentially exculpatory evidence that they uncover during the course of the investigation into him.

"When the prosecution has withheld evidence that is favorable to the defense, it is a Constitutional violation, Zellner explains.  "It is the Constitutional violation most likely to vacate a conviction."

"The pelvic bones are not on his property, they were on Manitowoc County's property," she adds.  "He was also told he thinks by Wisconsin Department of Justice investigators that they were very confident that Teresa Halbach's SUV had been on Kuss Road and had been driven into the deer camp and onto the Conveyor Road and crossed over into the Avery property.

"The thing that's so huge about that disclosure is it's a major Brady violation that was never reported to the defense."  

Zellner raised several potential Brady violations in a lengthy filing in Sheboygan County Circuit Court in June of 2017—a motion the court flatly denied.  While the court didn’t directly address Radandt’s claims, it is rather obvious that they don’t rise to the level of a Brady violation.

Simply put, this wasn’t exculpatory evidence.  It’s hearsay.  And Radandt can’t even remember who he heard it from.  Listen carefully to what Zellner says:

"He was also told he thinks by Wisconsin Department of Justice investigators...."

He thinks he heard it from the Wisconsin Department of Justice investigators.  So did the Wisconsin Department of Justice withhold evidence from Avery’s defense attorneys?  Or did Radandt hear this rumor from a Manitowoc Sheriff’s deputy, meaning the Manitowoc County Sheriff’s Department withheld evidence.

Radandt is wholly unable to prove the matter he asserts and can’t even remember who provided the evidence that Zellner now claims the state withheld.

Moreover, his claim that the supposedly human pelvic bone was found on Manitowoc County property and not his property is all but useless since that bone has never been determined to be human. 

Zellner herself requested new scientific testing on that bone to determine whether it came from Teresa Halbach or any human for that matter and...either never actually conducted that testing or never released the findings of it.

Nowhere in her lengthy motion for post-conviction relief does her expert, Dr. Steven Symes, ever actually reveal results of testing (if any was in fact ever done).  Instead, she uses his testimony to bolster not a Brady violation, but rather a claim of ineffective assistance of counsel by Avery’s trial attorneys.

As Zellner herself writes:

Dr. Symes will testify that the suspected human pelvic bone found in the Manitowoc County quarry should have been examined microscopically and histological slides should have been taken to definitively establish that this bone was human in origin. Establishing that the bone was, in fact, human would have supported trial defense counsel's theory that the bones in Mr. Avery's burn pit were planted. 

If the bone was, in fact, human, why didn’t she argue this?  If it was found to have belonged to Teresa Halbach after DNA testing was done on it, that would be bombshell evidence that actually would tend to suggest that Steven Avery might not be the real killer after all.

Heck, she had an expert available to test the bone.  Why would he only testify that testing should have been done back in 2005?  Why not do testing in 2018?  And if testing was done, why not scream the results to the world?

It is remarkably telling that Zellner either never tests this bone or doesn’t want to reveal what that testing showed. The most likely reason?  She didn’t like what that testing showed.

Dan O'Donnell

Dan O'Donnell

Common Sense Central is edited by WISN's Dan O'Donnell. Dan provides unique conservative commentary and analysis of stories that the mainstream media often overlooks. Read more


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