What Was Left Out of Making a Murderer Episodes 8–10

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Photo: Netflix

Spoilers ahead.

Starting with episode eight, there is no good news for either Brendan Dassey or his uncle Steven Avery. The glimmers of hope that do interrupt the darkness — a new girlfriend for Avery, a new set of committed, intelligent lawyers for Dassey, a sex scandal that brings down DA Ken Kratz — only intensify the grim, overall truth, which is that nothing positive is ever going to happen for Avery or Dassey in the Wisconsin justice system.

In the last three episodes of the series, we see uncle and nephew repeatedly stand up in court and get knocked down. During sentencing, Avery’s judge calls him “the most dangerous individual to ever set foot in this courtroom.” Both defendants are sentenced to life in prison, in Dassey’s case with the possibility of early release in 2048.

They are then both denied do-over trials, even though Dassey, with the help of eager and efficient new counsel, persuasively argues that his original lawyer was as ineffective as he was ineffectual. Their appeals are denied by the appellate courts and then by the State Supreme Court, leaving them with almost no options — and without any further right to an attorney.

A lot was packed into these three episodes. What was left out?

Despite what the prosecution alleges during the trial, false confessions are disturbingly common.
It seems all the state has to go on is Dassey’s disjointed and contradictory series of “confessions.” They do not provide any scientific evidence or witnesses linking Dassey to the crime scene. Yet, while Dassey’s lawyers play up his low IQ, they don’t put up expert witnesses to explain the phenomenon of false confessions. And DA Ken Kratz instructs the jury, “Innocent people don’t confess.”

According to the Innocence Project, though, Kratz is quite wrong. “More than 1 out of 4 people wrongfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.” Why? Sometimes because they are coerced by actual violence or the threat of it. Other times because their understanding is impaired, either by below-average intelligence or artificial means, such as alcohol. Occasionally, because they are simply exhausted by not being believed. But most often it’s because they think telling the police what they seem to want to hear is a better bet in the long term than continuing to maintain their own innocence.

From what was portrayed in Making a Murderer, Dassey’s lawyers never tried to explain this to the jury. In the hopes of a better outcome, his latest set of lawyers, who more capably but still unsuccessfully argued that the ineptitude of Len Kachinsky was cause enough for the state to grant Dassey another trial, are taking Dassey’s case before a Federal Magistrate judge and are awaiting a ruling.

Brendan Dassey could indeed have gotten some of the disturbing details he supplies as part of his “confession” from the book — or at least the movie version of — Kiss the Girls.
The crime novel by James Patterson begins with a teenage boy who calls himself “Casanova” committing his first few murders. Plenty more follow both at his hands and at the hands of another older serial killer, known as “the Gentleman Caller,” who also mutilates corpses.

In the 1997 film version of Kiss the Girls, sadomasochistic serial killers kidnap and rape women before killing them. The film version also contains a scene not found in the book, wherein one killer cuts off some of a female captive’s hair.

There is, however, no one scene that depicts a scene such as the one Dassey describes under interrogation or memorably draws for investigator Michael O’Kelly, with a woman shackled naked and spread-eagled to a bed.

O’Kelly administered a polygraph to Dassey, which he then told his client he had failed.
According to the transcript of Dassey’s session with investigator Michael O’Kelly, O’Kelly administered a polygraph and told Dassey the results indicated a very high probability that he was not telling the truth. 

MOK: This is your polygraph. Can you read up here?

BD: [Shakes head no.]

MOK: You can't see that far? Can you see what color it is?

BD: Red.

MOK: Okay. Well, I'll read it for you. It says deception indicated. Probability of deception is point 98. That's 98 percent.

BD: So, what does that mean?

MOK: What do you think that means?

BD: That I passed it?

MOK: It says deception indicated.

BD: That I failed it.

MOK: Yes.

Apparently, the actual results of the polygraph were “inconclusive.”

Later, in the same session with O’Kelly, Dassey supplies a possible motive for Avery’s alleged kidnapping and killing of Halbach: He couldn’t control his temper and became enraged when family members suggested he seek therapy.

BD: I could have a reason why he could have did it.

MOK: Go ahead.

BD: That I think he wanted to do it because like maybe he wanted to go back to jail.

MOK: Why do you think that?

BD: Because some days he couldn't control his temper, so the whole family told him to go see the people that you go talk to about your feelings and that. And he, he got pissed off and he went for a ride.

Dassey also claims in the session to have cleaned up the blood in the garage, and the prosecution refers, as corroborative evidence, to bleach stains on his pants.

Len Kachinsky is still practicing in Wisconsin. Ken Kratz, meanwhile, is a criminal defense attorney.
Dassey’s second court-appointed attorney is now a name partner at a Wisconsin firm, though its web page seems to have hidden his bio. Meanwhile, disgraced former DA Ken Kratz switched sides after being forced to resign (and seek treatment for drug and sex addiction).   

There was official pushback to the making of the documentary.
The two filmmakers had to fight, in conjunction with a lawyer of their own, not to hand over their material to the prosecution. Buzzfeed reports that “the government did certainly go out of their way to try and quash their documentary. In the fall of 2006, the state essentially tried to subpoena the footage.” One of the filmmakers describes the state’s action as “‘a fishing expedition, and we really think it was an effort by the state to shut down our production.’”

There are currently two petitions circulating, asking for presidential pardons for Avery and Dassey.