EPISODE 5
"THE LAST PERSON TO SEE TERESA ALIVE"
PROSECUTORIAL ACTS (Continued): THE BOBBY DASSEY FIASCO
The testimony of Bobby Dassey was largely unremarkable until the statement undoubtedly coached by Kratz rocked the courtroom.
Dassey had testified that at 2:30 in the afternoon, a vehicle arrived and "someone" began taking photographs of the red van. He testified just seconds later that he saw that person, who he then identified as Teresa Halbach, walking toward Avery's trailer. Here's my problem: If he knew what Teresa Halbach looked like, why didn't he say he saw Teresa Halbach snapping photos? Bobby Dassey isn't courtroom-savvy enough to refer to the person taking the photographs as a "someone." He was coached. By whom? Kratz.
It is not unusual for witnesses to be coached before testimony. Prosecution witnesses are coached by prosecutors, and defense witnesses are coached by defense attorneys. I've been through the coaching. At no time have I ever been told what to say, but I have been given "better ways" of expressing the same thing. Bobby Dassey was, to my mind, extensively coached on what he would say, not just how he would say it.
When Bobby essentially accused Avery of trying to get help 'burying a body,' all hell broke loose in court. But when he uttered the words, the one person in the courtroom who did not seem surprised was Ken Kratz; likely because he knew it was coming. In fact, it couldn't have caught him by surprise because he asked Dassey about a statement Avery had made about "a body."
The testimony of Bobby Dassey was largely unremarkable until the statement undoubtedly coached by Kratz rocked the courtroom.
Dassey had testified that at 2:30 in the afternoon, a vehicle arrived and "someone" began taking photographs of the red van. He testified just seconds later that he saw that person, who he then identified as Teresa Halbach, walking toward Avery's trailer. Here's my problem: If he knew what Teresa Halbach looked like, why didn't he say he saw Teresa Halbach snapping photos? Bobby Dassey isn't courtroom-savvy enough to refer to the person taking the photographs as a "someone." He was coached. By whom? Kratz.
It is not unusual for witnesses to be coached before testimony. Prosecution witnesses are coached by prosecutors, and defense witnesses are coached by defense attorneys. I've been through the coaching. At no time have I ever been told what to say, but I have been given "better ways" of expressing the same thing. Bobby Dassey was, to my mind, extensively coached on what he would say, not just how he would say it.
When Bobby essentially accused Avery of trying to get help 'burying a body,' all hell broke loose in court. But when he uttered the words, the one person in the courtroom who did not seem surprised was Ken Kratz; likely because he knew it was coming. In fact, it couldn't have caught him by surprise because he asked Dassey about a statement Avery had made about "a body."
Bobby Dassey proceeded to tell a story of Steven Avery apparently attempting to engage the assistance of Dassey and one of his friends in burying a body. However, Dassey omits the most crucial details of the story; that the statement was apparently made in jest. This was a detail that Kratz likely coached him to omit. Dassey couches the discussion intentionally out of context and inferred that the request was serious. I cannot express in this small an article how unethical, morally wrong and manipulative this Kratz-created testimony was.
The prosecution immediately--and correctly--objected to the testimony and moved for mistrial. In my opinion, that request would have been granted in 90% of the courtrooms in America. But not in the courtroom of Patrick Willis.
Remember in my last installment when I said that each side must have an even playing field and no surprises? It's to avoid exactly this type of misleading crap. Besides the fact that the statement was designed to mislead the jury and therefore undermine the judicial process, Kratz knew he was about to violate established judicial procedure. What Dassey said had never been given to the prosecution, and was therefore inadmissible. Do not think the Kratz didn't grasp this well-known doctrine of legal proceedings any more than Pete Rose didn't know that gambling was against the rules of Major League Baseball. Kratz' misconduct was, in my opinion, intentional.
What Kratz did was have Dassey say something in front of the jury, which Kratz reasonably should have known would be disallowed. However, he knew that by making a statement in front of the jury, they could not forget this any more than a bell can be unrung.
It turns out that the statement Avery allegedly made was a joking response to a smart-ass comment from one of Dassey's friends. The friend, noting that Avery was a suspect in Halbach's disappearance, asked (in jest) whether Avery had the girl "in his closet." To which Avery replied, "Yeah, you want to help me get rid of the body?" Neither Dassey nor his friend went to the police with that alleged admission. Neither thought it significant. Both thought it was a joke. But that context was not provided to the court. As theologian D.A. Carson is famous for saying; "Text without context is pretext."
What's doubly ridiculous here is that the prosecution knew at the time that the body of Halbach was not buried and likely had been burned by the time the Avery statement was made. Therefore, trying to get assistance to bury a body contradicted their theory of the case.
The prosecution immediately--and correctly--objected to the testimony and moved for mistrial. In my opinion, that request would have been granted in 90% of the courtrooms in America. But not in the courtroom of Patrick Willis.
Remember in my last installment when I said that each side must have an even playing field and no surprises? It's to avoid exactly this type of misleading crap. Besides the fact that the statement was designed to mislead the jury and therefore undermine the judicial process, Kratz knew he was about to violate established judicial procedure. What Dassey said had never been given to the prosecution, and was therefore inadmissible. Do not think the Kratz didn't grasp this well-known doctrine of legal proceedings any more than Pete Rose didn't know that gambling was against the rules of Major League Baseball. Kratz' misconduct was, in my opinion, intentional.
What Kratz did was have Dassey say something in front of the jury, which Kratz reasonably should have known would be disallowed. However, he knew that by making a statement in front of the jury, they could not forget this any more than a bell can be unrung.
It turns out that the statement Avery allegedly made was a joking response to a smart-ass comment from one of Dassey's friends. The friend, noting that Avery was a suspect in Halbach's disappearance, asked (in jest) whether Avery had the girl "in his closet." To which Avery replied, "Yeah, you want to help me get rid of the body?" Neither Dassey nor his friend went to the police with that alleged admission. Neither thought it significant. Both thought it was a joke. But that context was not provided to the court. As theologian D.A. Carson is famous for saying; "Text without context is pretext."
What's doubly ridiculous here is that the prosecution knew at the time that the body of Halbach was not buried and likely had been burned by the time the Avery statement was made. Therefore, trying to get assistance to bury a body contradicted their theory of the case.
Again, when people ask, "how do injustices and wrongful convictions occur?" I point to actions like this, and judges that allow prosecutors or defense attorneys to get away with them. If this had occurred in front of a U.S. federal judge, a mistrial would almost certainly have been declared, and Kratz reported to the bar for malfeasance, if the judge didn't mete out his own very real punishment right in the courtroom. But in this courtroom of Judge Patrick Willis, not only was a mistrial not declared, but the statement by Dassey was not even struck. I suspect Kratz knew Willis wouldn't sanction him. I was left slack-jawed. All judges are not created equal. Some are over-matched by their task.
The press, however, was not as easily bamboozled as was Judge Willis. They literally clamored for an explanation for Kratz' reckless actions in a post-session press conference. Kratz' account of the testimony leaves little doubt as to the insidious calculation he made. He said that he first heard the allegation from Dassey during preparation for the trial.
This reminds me of the time inveterate bank robber Willie Sutton was asked why he robbed banks. "Because that's where the money is," was his alleged answer. Didn't really absolve him of anything. Kratz' explanation that Dassey told him in pretrial preparation is just as ridiculous an excuse.
The press, however, was not as easily bamboozled as was Judge Willis. They literally clamored for an explanation for Kratz' reckless actions in a post-session press conference. Kratz' account of the testimony leaves little doubt as to the insidious calculation he made. He said that he first heard the allegation from Dassey during preparation for the trial.
This reminds me of the time inveterate bank robber Willie Sutton was asked why he robbed banks. "Because that's where the money is," was his alleged answer. Didn't really absolve him of anything. Kratz' explanation that Dassey told him in pretrial preparation is just as ridiculous an excuse.
As I said, attorneys frequently conduct pre-trial mock-testimony to help the witness testify and to avoid problems. They know, for instance, if the witness says something in court beyond what he or she's told police or their attorneys at that point, that he or she, the prosecutor, or the defense attorney(s) could be liable for statements such as Bobby Dassey made in that courtroom.
If it is true that Bobby Dassey came up with that ridiculous statement all on his own during pretrial preparation, Kratz' legal responsibility wasn't ambiguous. He was required to notify the judge of the statement, have the police record Dassey's new statement, then notify the defense attorneys, so they could evaluate the statement and determine their response. The judge would then give the defense a certain amount of time to prepare for the portion of trial that included that statement.
Kratz is either lacks the competence to serve as a prosecutor or attorney, or he intentionally ignored the law in order to prejudice a jury with a statement he knew was a lie.
JUDICIAL ACTS (AND FAILURES TO ACT):
The fact that Judge Willis neither declared a mistrial, nor even required Dassey's statement to be stricken indicates to me either incompetence or a startling bias in favor of the prosecution. The judge in any courtroom is the last line of honesty and propriety in a court. He's like the referee on a football field, or an umpire on the baseball diamond. Officials keep the game from being futile exercise by holding both sides to the same rules. Absent officials, games would be pointless, because the contests would devolve into tests of who cheated the best.
Judge Willis didn't allow it to get that bad in his courtroom. He made sure only one side cheated.
If it is true that Bobby Dassey came up with that ridiculous statement all on his own during pretrial preparation, Kratz' legal responsibility wasn't ambiguous. He was required to notify the judge of the statement, have the police record Dassey's new statement, then notify the defense attorneys, so they could evaluate the statement and determine their response. The judge would then give the defense a certain amount of time to prepare for the portion of trial that included that statement.
Kratz is either lacks the competence to serve as a prosecutor or attorney, or he intentionally ignored the law in order to prejudice a jury with a statement he knew was a lie.
JUDICIAL ACTS (AND FAILURES TO ACT):
The fact that Judge Willis neither declared a mistrial, nor even required Dassey's statement to be stricken indicates to me either incompetence or a startling bias in favor of the prosecution. The judge in any courtroom is the last line of honesty and propriety in a court. He's like the referee on a football field, or an umpire on the baseball diamond. Officials keep the game from being futile exercise by holding both sides to the same rules. Absent officials, games would be pointless, because the contests would devolve into tests of who cheated the best.
Judge Willis didn't allow it to get that bad in his courtroom. He made sure only one side cheated.
INVESTIGATOR'S NOTEBOOK:
I'm trying something new out with this article. You've seen those small investigative notebooks every detective since Joe Friday carried. I carried one. They are not (usually) evidentiary in nature. They contain hunches, observations, feelings, and leads that the investigator believes need to be followed. In short, very few conclusions are reflected in the notebook and approximately 90% of the entries will be opinion or raw thoughts.
After Episode 5 I realized I was falling into my same old 'investigators notebook' habit. I think it would be valuable to share some of my notes with you. Not because the notes are evidence, proof of anything, or even correct assumptions. That's the point; investigator's notebooks are brainstorming, initial opinions, and thoughts about what you want to know, not what you do know. And they can show you how an investigator thinks and reasons, and how his/her thoughts change as the investigation progresses. I'll include these notes from time to time in the articles so you can see what I was thinking as I watched the episode.
Notebook, Episode 5:
FINAL THOUGHTS
Many of you are sure I'm going to come down on the side of Avery's innocence. Let me assure you that while at this point I see some terrible investigation, embarrassing judicial decisions and horrendous prosecutorial behavior, I have still not seen anything at all in the documentary which proves Steven Avery either guilty or innocent. Keep in mind that my assumption going in is that he is innocent until proven guilty. I just haven't seen that proof yet.
Note this; a documentary alone won't convince me-evidence will. I suspect most of you believe Avery is innocent and believe that the evidence I will soon see will convince me of this fact. Maybe or maybe not. While I have no desire to have most of you readers think I'm wrong and even (it would happen) attack me, but I'm not afraid of taking an unpopular position if I believe it's the correct position. Ask those who disagree with my conclusions on the Amanda Knox case. I've been the target of vicious internet trolls since 2010. But in the end, Amanda is home, exonerated and free.
WHO DUNNIT?
All other things equal, to me, Hillegas or Bloedorn are more likely suspects than Avery. But the evidence I have at this point makes me more suspicious of Avery than Hillegas or Bloedorn. I also chafe at the statement "Avery had not motive to kill Halbach." That's not true. If Avery killed Halbach, he had the same motive as tens of thousands of other sex-killers; the desire for power, control over women and a deviate sexual drive. That's one of the most common criminal motives that exist.
Still, as my notes above point out, I feel that no adequate investigation of Hillegas and Bloedorn has been conducted (as far as I know.) So if I see contact between Hillegas and Halbach after 2:41 pm on October 31, all bets are off.
If I find out that either of those are the mysterious harassing phone-caller, then hold on.
I'm trying something new out with this article. You've seen those small investigative notebooks every detective since Joe Friday carried. I carried one. They are not (usually) evidentiary in nature. They contain hunches, observations, feelings, and leads that the investigator believes need to be followed. In short, very few conclusions are reflected in the notebook and approximately 90% of the entries will be opinion or raw thoughts.
After Episode 5 I realized I was falling into my same old 'investigators notebook' habit. I think it would be valuable to share some of my notes with you. Not because the notes are evidence, proof of anything, or even correct assumptions. That's the point; investigator's notebooks are brainstorming, initial opinions, and thoughts about what you want to know, not what you do know. And they can show you how an investigator thinks and reasons, and how his/her thoughts change as the investigation progresses. I'll include these notes from time to time in the articles so you can see what I was thinking as I watched the episode.
Notebook, Episode 5:
- Hillegas guesses Hallbach's password? Really?
- Guy who remembers girlfriend's phone password several years after breaking up is obsessed with her. Stalker?
- Who was with Hillegas when he guessed the password?
- Why didn't Bloedorn report Halbach missing after three days?
- Who made harassing calls to T.H.?
- Halbach has to have girlfriends who would know whether she was in a romantic relationship with anybody. Who was she dating? Interview her girlfriends.
- Get profiles on--
- Hillegas
- Bloedorn
- Get Colburn cell records November 2, 3, 4
- Find Colburn location during 10–28 call (cell towers)
- Get Colburn radio recordings and control log
- Wiegert alibi the night Colburn called 10–28?
- What proof of T.H. bones being moved?
- Where did each volunteer searcher search? What guidance was given to the women in the junkyard search by Hillegas and/or Bloedorn
- Hillegas/Bloedorn alibi for October 31?
FINAL THOUGHTS
Many of you are sure I'm going to come down on the side of Avery's innocence. Let me assure you that while at this point I see some terrible investigation, embarrassing judicial decisions and horrendous prosecutorial behavior, I have still not seen anything at all in the documentary which proves Steven Avery either guilty or innocent. Keep in mind that my assumption going in is that he is innocent until proven guilty. I just haven't seen that proof yet.
Note this; a documentary alone won't convince me-evidence will. I suspect most of you believe Avery is innocent and believe that the evidence I will soon see will convince me of this fact. Maybe or maybe not. While I have no desire to have most of you readers think I'm wrong and even (it would happen) attack me, but I'm not afraid of taking an unpopular position if I believe it's the correct position. Ask those who disagree with my conclusions on the Amanda Knox case. I've been the target of vicious internet trolls since 2010. But in the end, Amanda is home, exonerated and free.
WHO DUNNIT?
All other things equal, to me, Hillegas or Bloedorn are more likely suspects than Avery. But the evidence I have at this point makes me more suspicious of Avery than Hillegas or Bloedorn. I also chafe at the statement "Avery had not motive to kill Halbach." That's not true. If Avery killed Halbach, he had the same motive as tens of thousands of other sex-killers; the desire for power, control over women and a deviate sexual drive. That's one of the most common criminal motives that exist.
Still, as my notes above point out, I feel that no adequate investigation of Hillegas and Bloedorn has been conducted (as far as I know.) So if I see contact between Hillegas and Halbach after 2:41 pm on October 31, all bets are off.
If I find out that either of those are the mysterious harassing phone-caller, then hold on.