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  • Writer's pictureMario Nicolais

'Making a Murderer' tragedy drags on

If you binge watched the Netflix series “Making a Murderer” — hopefully after reading my column! — then you must be familiar with the host of tragedies inundating the show. The recent saga of Brendan Dassey, one the individuals at the center of the story, demonstrates how these tragedies can drag on for years and even decades in the criminal justice system.

The primary tragedy in “Making a Murderer” was the murder of photographer Teresa Halbach. From that starting point, the docu-series reviewed and analyzed historical evidence, interviews, press accounts and court proceedings, supplemented by follow-up interviews by the filmmakers about the murder and the two men convicted of it — Steven Avery and Dassey. Of course, one of the main substories emphasizes that Dassey wasn’t actually a grown man at the time. And that is where recent court proceedings captured headlines again.

First ordered freed by a federal magistrate in August, hours before he walked out of prison in November, the 7th U.S. Circuit Court of Appeals granted an injunction staying the order. Consequently, Dassey remains in prison, where he has been for over a decade.

Dassey’s 2005 “confession” to raping and murdering Halbach cemented conviction for him and Avery. Because of its primacy, that confession and its validity became a central narrative in the series.

A 16-year-old boy at the time, the investigating officers pulled Dassey out of class and spent hours interrogating him without a parent or legal representative. Watching video of the interrogation, several aspects jump out at the viewer. First, Dassey possesses intellectual processes substantially below those of an average 16-year-old, much less an adult; it is painful for viewers to watch him struggle to comprehend what is happening to him. It is horrifying to see him come to the wrong conclusions. I can’t help but think the producers knew the audience would harbor this type of omniscient viewpoint juxtaposed to the powerlessness to intervene. Any good horror movie applies the same narrative tool. When Dassey finally confessed after being interrogated for hours, viewers can only shake their heads when he asks if he can now go to his next period.

The non-presence of a parent or legal counsel compounded Dassey’s obvious mental deficiencies. Dassey comes off as the kind of kid who had trouble concentrating for 20 minutes on a pop-quiz, much less hours under intense scrutiny by trained law enforcement. Alone and without assistance, it seemed almost inevitable that he would tell investigators whatever they wanted given enough time and pressure. But given the circumstances, it seems almost inconceivable that an adult would have allowed that time and pressure to be employed. Certainly, even the chance to talk over what was happening to him and potential repercussions may have changed Dassey’s fate.

As U.S. Magistrate Judge Willian Duffin wrote in his order, Dassey’s confession was “so clearly involuntary in a constitutional sense that the court of appeals’ decision to the contrary was an unreasonable application of clearly established federal law.”

Of course, it took a decade to reach that point. And it shouldn’t have, but for the clear incompetence of Dassey’s attorney. Watching the series, nothing struck me as more sickening than the performance of Leonard Kachinsky, the lawyer appointed to defend Dassey. It is a bedrock foundation of the criminal justice system that defense attorneys provide a vigorous defense for their clients. When that doesn’t happen, justice necessarily fails. As Magistrate Duffin found, Kachinsky failures were not just incompetent, but unethical. His representation didn’t help Dassey, it hurt.

Dassey will now spend more time in prison awaiting legal decisions he probably does not understand. And his case will continue to drag on.

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