“That ain't no lawyer as far as I'm concerned. A lawyer is supposed to work for you.”
—Allan Avery, Avery's father, on Brendan Dassey's lawyer
Wisconsin's ethics rules start with the basic principle that an attorney must be loyal to his client: “As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.”1 In doing so, a lawyer must also be diligent and “act with commitment and dedication to the interests of the client….”2
When fulfilling the above obligations, a lawyer must be competent, which requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”3 A lawyer is also required to communicate with his client, including “consult[ing] with the client about the means by which the client's objectives are to be accomplished….”4
And the ethics rules get even more specific. For example, an attorney must keep his client's confidences, and must “not reveal information relating to the representation” of the client.5 At a minimum, this means that a defense attorney may not take information that was provided by the client, and then disclose it to the prosecutor for the state to use against the client.
DEFICIENT PERFORMANCE AND PREJUDICE
When a defendant is convicted at trial and then appeals that conviction, the appellate lawyer typically does not accuse the trial lawyer of violating specific, individual ethics principles or rules. Instead, the appellate lawyer will argue that the trial attorney was “ineffective,” which comes down to a two-part test.6
First, to prove ineffective assistance of counsel, the appellate lawyer must demonstrate that the trial attorney's performance was deficient. Deficient performance can take many forms, including violations of the previously described ethics rules. For example, perhaps the trial lawyer was not loyal to the client due to a conflict of interest. Or, despite his best efforts, perhaps the trial lawyer simply was not competent to handle the client's case and therefore wasn't aware that certain defenses were available to him. Or, even if the trial lawyer was aware of all the possible defenses, perhaps he failed to consult with the client to discuss important issues regarding the use of those defenses.
After arguing that the trial attorney's performance was deficient, the appellate lawyer then argues the second prong of the test, that the defendant was prejudiced by the deficiency. Prejudice is roughly defined as whether the trial attorney's deficient performance undermines the court's confidence in the jury's guilty verdict.7
To briefly illustrate how this test works, suppose that a defendant is accused of criminal battery for a bar fight. He hires a trial attorney who argues self-defense at trial, but the defendant is convicted. After the conviction, the defendant hires an appellate lawyer to file an appeal. During this process, the appellate lawyer discovers that the trial lawyer never filed a “discovery demand” with the prosecutor; as a result, the prosecutor never turned over an eyewitness's written statement. And without the written statement, the trial lawyer didn't know about the witness and therefore never called that witness at trial. When asked about this at the post-conviction hearing, the trial lawyer admitted that he didn't know he had to file a discovery demand to get this information. Failing to file a discovery demand, therefore, could constitute deficient performance because the attorney was not competent or at least was not diligent.
But the next step is for the court to decide whether the trial lawyer's deficient performance prejudiced the defendant. To decide this, the court has to look at the written statement (that the trial lawyer never obtained at the time of trial) and the trial transcript. If, for example, the witness had stated, “I really didn't see how the fight started,” then the defendant probably was not prejudiced by his trial lawyer's failure to file the discovery demand, to obtain the written statement, and to call the witness at trial. Why not? Because the witness's testimony would not have supported the defendant's claim of self-defense.
Similarly, even if the witness's statement indicated that the defendant was attacked first and then reacted in self-defense, this might still fail the prejudice prong if, at trial, the trial lawyer had called several other witnesses who testified to that very same thing. If that were the case, the missing witness's testimony may simply have been cumulative to the testimony of other witnesses. Just because the jury chose not to believe those witnesses, and instead convicted the defendant, doesn't mean things would have turned out differently had one more witness testified and said the same thing.
It should be obvious from this example that, when left in judicial hands, this two-prong ineffective assistance of counsel test is highly subjective. And, as we know from chapter 2, judges don't like to give convicted defendants a new trial. So keeping in mind the subjectivity of the two-prong test, coupled with the judicial proclivity to affirm convictions at all costs, let's take a close look at Brendan Dassey's appeal where he challenged the performance of Len Kachinsky.
LEN KACHINSKY, ATTORNEY AT LAW
Dassey's appellate lawyers argued that one of Dassey's pretrial attorneys, Len Kachinsky, “breached the fundamental duty of loyalty”; the appellate court analyzed this claim as a form of “ineffective assistance of counsel.”8 Therefore, the court had to decide whether Kachinsky performed deficiently by acting “to the detriment of the client's interests.”9 And, if he did, the court would then have to decide whether his deficient performance resulted in prejudice, or “demonstrable detriment,” to Dassey.10
Readers will likely remember the affable, easygoing, youthful-in-appearance, media-friendly Len Kachinsky. Making a Murderer revealed that, shortly after being appointed to the case but before meeting with his client, Kachinsky told the media that Dassey was “morally and legally responsible” for the part he played in the Halbach murder.11 In addition to this public statement, Kachinsky also sent a private investigator, Michael O'Kelly, to interrogate Dassey for the purpose of obtaining his own client's confession. In so doing, O'Kelly employed interrogation tactics that were so coercive they probably would have made Mark Wiegert and Tom Fassbender blush.
O'Kelly also lied to Dassey by telling him that he (Dassey) had failed his lie detector test, when in fact he hadn't.12 He told Dassey that continuing to assert his innocence meant that he was continuing to lie. He told Dassey that, in order to help him, Dassey must select from one of two choices on a form: (1) “I am very sorry for what I did” or (2) “I am not sorry for what I did.”13 (Nowhere was innocence offered as a choice.) He even made Dassey draw a picture of the bloody rape, throat slashing, and murder—the details of which Dassey dreamed up during his previous interrogations with Wiegert and Fassbender. Kachinsky and O'Kelly then offered their client's statements and drawings to the government, and also invited Wiegert and Fassbender to again interrogate Dassey, without Kachinsky being present.
Kachinsky's strategy in doing all of this was to firm up Dassey's earlier confession to Wiegert and Fassbender, to fully cooperate with the government's prosecution of Avery (even though such cooperation also incriminated Dassey), and to have Dassey testify against Avery at Avery's trial. In return, Kachinsky was hoping to receive a plea bargain for Dassey from the state.14
Dassey's appellate lawyers, however, argued that Kachinsky's performance was deficient in numerous ways. They argued that Kachinsky should not have publicly admitted his client's guilt without first meeting with him and exploring the numerous possible defenses available to him—defenses that may have included the coercion defense, an alibi defense, and a false confession defense, among others.
Dassey's appellate lawyers argued that Kachinsky should not have made the strategic decision to cooperate with the government without first receiving a plea offer from the prosecutor, and then presenting it to, and discussing it with, his client. They also argued that, in the face of his client's continued claims of innocence, Kachinsky should not have continued down the strategic path he had chosen.
Dassey's appellate lawyers further argued that Kachinsky should not have employed O'Kelly to lie to and interrogate his own client for the purpose of obtaining a confession to turn over to the state. They also argued that Kachinsky should not have invited government agents to again interrogate his client—without Kachinsky being present, no less.
In support of their argument that Kachinsky's performance was deficient—that is, he failed to satisfy the standards of loyalty, diligence, and competence, and failed to communicate with his client and keep his client's confidences—the appellate lawyers used the trial judge's own words to Dassey's advantage. When Kachinsky was allowed to withdraw as counsel before Dassey's trial started, the trial judge said Kachinsky's “failure to be present while his client gave a statement to investigators…I believe that constituted deficient performance on Attorney Kachinsky's part…. This is not the kind of assistance of counsel a defendant should have.”15
Having made a case—and, given the trial judge's words, a seemingly strong case—for deficient performance, Dassey's appellate lawyers then moved on to the prejudice prong of the two-part test. They argued that not only did Kachinsky perform deficiently, but Dassey was prejudiced by that deficiency. Specifically, they once again relied on the trial judge's own words. When Dassey talked to the government interrogators—at Kachinsky's invitation and without Kachinsky being present—the government obtained yet another statement from Dassey that it was able to use to its advantage. The trial judge called it “a statement which, according to the special prosecutor's petition filed May 17 supporting his motion to increase bail[,] provided new information to authorities on the crimes charged here….”16
Most harmful of all, when interrogating Dassey without Kachinsky present, Wiegert and Fassbender told the simplistic, overmatched teenager that he had better admit some of his transgressions to his mother. If he didn't, then they would tell her that he had been lying to them again. Dassey promised to talk to his mother when she came to visit, but that was not good enough for the wily interrogators. They wanted him to call his mother and discuss it on the phone.
Why was it so important to the government that Dassey call his mother on the phone? Because the government was recording all of Dassey's jail phone calls. And Dassey's statements made during phone calls with his mother would appear, to a jury, to be far removed from the coercive pressure of the interrogation room. This, of course, would be a better quality of evidence for the state to use at trial. Wiegert therefore insisted to Dassey, “[I]t would be a good idea to call [your mom] and tell her before she gets here tonight. That's what I would do. Cuz, otherwise, she's gonna be really mad…. Better on the phone, isn't it?”17
“Better on the phone,” indeed. Better for the government, that is. Dassey called his mother, discussed the case, and his recorded phone call was used against him at his own trial where he was convicted as a “party to” the murder of Teresa Halbach.
A NEW TRIAL?
Let's revisit some of the ethics rules from earlier. Was Kachinsky loyal to Dassey or did he seem to be working more for the state in its pursuit of Steven Avery? Did he diligently explore possible defenses for Dassey before telling the media that his client was “morally and legally responsible”? Did he competently represent Dassey when he invited Wiegert and Fassbender to interrogate him again—without even attending the interrogation to keep an eye out for Dassey's interests? And did he effectively communicate with Dassey about important matters and keep Dassey's confidences? To put it in terms of the two-part, ineffective assistance of counsel test, did Kachinsky perform deficiently, and, if so, was Dassey prejudiced by that deficient performance?
After reading chapter 2, no one should be surprised that the conviction-affirming appellate court denied Dassey's request for a new trial. The appellate court, with virtually no analysis whatsoever, swiftly dispensed with Dassey's claim of ineffective assistance of counsel via six superficial paragraphs. In these paragraphs it simply ignored the vast majority of the appellate lawyers’ evidence and arguments. Instead, the appellate court first concluded that Kachinsky's actions were reasonable, in that “he hoped to get the best deal he could for Dassey….”18 The court then held that, even though the state used Dassey's phone calls against him at trial, the appellate lawyers failed to demonstrate a “viable link between Kachinsky's actions and any demonstrable detriment” to Dassey.19
To put this in baseball terms, Dassey's appellate lawyers needed to connect on both pitches. They needed to hit the ball out of the park on both issues—deficient performance and prejudice—in order to get Dassey a new trial. And although they seemed to have launched both pitches deep into the cheap seats, the appellate court simply dismissed their work as nothing more than two foul balls. And in this game, it's two strikes and you're out. The state appellate court affirmed Dassey's conviction.20
PROTECTING CLIENTS FROM ATTORNEYS
It is important to remember that the Office of Lawyer Regulation (OLR) and the Wisconsin State Bar never found that Kachinsky violated any ethics rule. (Nor, to my knowledge, was there even an allegation that he did so.) Further, contrary to the trial judge's initial statement that Kachinsky's performance was “not the kind of assistance of counsel a defendant should have,” the appellate court held that Kachinsky satisfied the attorney performance standards and rendered effective assistance of counsel.21
The problem, therefore, to the extent that one even exists, is with “the system.” And the questions are these. With regard to criminal defense lawyers, do we really even value the principles of loyalty, diligence, competence, communication, and confidentiality? If not, then fine. But if we do, are we satisfied with a system where Kachinsky's performance in Dassey's case is deemed to have satisfied these standards? If we are not satisfied, then our entire system—the disastrous ethics rules, the malleable attorney performance standards, and the flaccid appellate court judges—needs to be revamped from the ground up. (Keep in mind, however, that a new, more robust system would protect all criminal defendants—not just those who are featured in popular documentaries and widely perceived to be innocent.)
But until we get this new, more robust system, how will the OLR and the Wisconsin State Bar justify their continued bureaucratic existence? As discussed in chapter 11, they still have plenty of ways to pretend they are serving the public. And, as discussed in the next chapter, if things get really slow, they can always spend their time ferreting out and disciplining attorneys who have an “offensive personality.”22 However, while doling out such discipline will perpetuate the illusion that the OLR and the Wisconsin State Bar are protecting clients from their lawyers,23 it won't help Avery, Dassey, or any other defendant accused of a crime.