4.Defense Opening Statement

MR. FREMGEN: Thank you. I don't, uh, have any audio visuals, so I'll apologize ahead of time. You have to listen to me instead.

On October 31 of 2005, Brendan Dassey came home about 3:45 from school, from high school, with his brother, Blaine. Not unusual for Brendan to come home with Blaine. Everyday they came home the same way. Dropped off at the end of the street. The access road, the Avery Road accesses to his house, and began to walk down the road. It takes about five minutes to get to the house from the -- from the mailboxes. And as they're walking, they start to talk about who gets to use the phone first to call a friend to go trick or treating. They race home, and Blaine wins the race, so he gets the phone first.

Blaine calls his friend, Jason. They set up a time to meet to go trick or treating, and Brendan plays some video games. He watches a little bit of TV, and about 5:00 his mom comes home and makes supper for Blaine and -- and Brendan.

About 20 after 5, maybe 5:30, Blaine leaves to meet Jason, his friend, to go trick or

treating, and Barb Tadych, now Tadych, was Janda, meets her boyfriend, fiancé at the time, at about 5:30 to go up to Green Bay to visit with his mother who's in the hospital.

She leaves, and Brendan is still at home watching TV, playing some video games, and at about 5:45 Blaine's boss, his name is Mike Kornely, Brendan used to work for Mike as well, calls to talk to Blaine. Talks for about five minutes and Brendan takes a message for Blaine that -- that Mike called.

Shortly after that time, Steven Avery calls. Steven Avery, obviously, as you know, is Brendan's uncle. Lives about a couple hundred yards from -- couple hundred feet from the house. Calls and asks if he wants to come over to watch a bonfire that -- that Steve has set. Brendan says, yes.

About 15 minutes later, Steve calls again, asks Brendan, what's taking you so long? Brendan's kind of putzy, he's going to -- he's changing his pants, putting on a sweatshirt, it's a little bit chilly for an October night, and he goes over to the bonfire.

And when he gets there, it's a little bit dark now, about seven-ish. He drives around with his Uncle Steven. Steven has his mother's golf cart, and they're traveling around the yard picking up debris. Wood, an old cabinet, some tires, and a van seat. And as they collect the items, they begin to pile them up next to -- or just to the side of this little area behind Steven's garage where he's got the bonfire going.

They throw some items onto the bonfire, put some other items off to the side, and they do that for about four or five trips around the yard, collecting debris, collecting garbage, and they begin to toss the garbage onto the fire throughout the night.

After they're done cleaning up the yard, Steven asks Brendan if he wants to help clean up a mess in his garage. Brendan says, yes.

They go into the garage, and there's a small area behind the lawnmower as if something had spilled. Steven takes some gasoline and pours it onto this little area, and they use some clothing, old rags, that sop up the mess, and as they begin to clean it up with these old clothes and old rags, they throw them onto the fire, and they do that for about a half hour. Steven tries some gasoline and paint -- paint thinner to help clean up the area, and some bleach as well.

After about a half hour, they go back out by the bonfire and Steven gets a call on his cell phone. It's from Brendan's mom, Barb. She calls over to -- to see if Brendan is over by Steven by the bonfire. He says he is. Reminds Steven to tell Brendan that he needs to be home before ten and asks that he has a sweatshirt or a coat on because, again, it's kind of a chilly night.

Brendan never talks to his mom, but he knows he now has to be home by ten. They watch the fire for awhile and then tossed the van seat onto the back of the fire. About 9:30, quarter to 10, Brendan goes home. Gets home, watches some TV, and goes to bed.

Now -- Now, what I've just done is explain to you what we believe the evidence will show that happened on October 31. As Mr. Kratz has pointed out, that's called the opening statement. I think it's more like a story. It's like reading a novel. A trial is kind of a novel. Novels have characters, and you'll see witnesses. Novels have a plot or some sort of a

theme. Each side, the prosecutor and the defense, we each have a theme we want to present to you. And then there's always a conclusion. Now, difference between a trial and a novel is that the conclusion hasn't been written. That's your job. At the end of this case, after each attorney has had an opportunity to present witnesses and evidence for you, had an opportunity to give what's called a closing argument, after the Judge instructs you on the law, it's up to you, and you alone, to finish the story, to decide what actually happened.

Now, not unlike a story or a novel, there can be turns and twists. Mr. Kratz pointed out in their theme there are turns and twists, and we'll do the same. There may be similarities between novels and trials, but there are some differences as well.

For instance, when I read a story, sometimes I get a little anxious and I want to find out, what -- what happened. Who did it. So I tight -- tend to want to skip some of the pages, pass up on a chapter, maybe even take a peek at the very end. But you can't do that. Part of that, and the obvious reason, is that the Court controls the tempo and flow of information here. We can't just start now and we'll skip to the end to the closing arguments. You need to hear the evidence.

And when we talk in jury selection about burden of proof and presumption of innocence, one of the questions I had for you, and I believe most of you raised your hands or at least nodded affirmatively, that you want to hear from both sides, and you can't do that if you skip to the end. You can't do that if you hear just one side.

As Mr. Kratz pointed out, they get to go first. They'll present you with number of witnesses, days and days of -- of evidence, exhibits, photographs, testimony. And when they're done, we get an opportunity to provide you with the same.

But if you don't presume Brendan innocent, even after they're done with their part of the case, after they rest and allow us an opportunity to present witnesses for you, then you've already skipped to the end of the book. You've passed a number of chapters and -- and you've denied the presumption of innocence.

And what I was, uh, most impressed by on jury selection is I believe every person here agreed, raised their hand that, yes, we need to presume Brendan innocent at all times until it's time for you to -- to deliberate, your final time to go from here into the backroom to make your decision.

It is important to remember who is on trial. This is not the Steven Avery trial. And it seems so simple to say that, but it's very difficult to do.

In February, late or early March, when the Steven Avery trial was -- was, uh, going on, I would often go to court, different county, and attorneys, and even a judge, would ask me, shouldn't you be over in Calumet? Isn't that where the Avery trial's going on? Yep, that's true.

My in-laws, my, uh -- my neighbor, even my pastor said the same thing to me, and I'd have to politely tell them that each time, well, that's a different trial. I represent Brendan Dassey, the nephew, and it's a different case entirely.

And I believe that's what the State wants to present to you as well. They need to present evidence about the Steven Avery involvement, but I think they want to focus on Brendan as well, and to that I agree. This is not Steven Avery.

You'll hear days and days of evidence about Steven Avery, his DNA, his blood found in the SUV, about the bone fragments behind his house in a burn pit, about the bullet fragment found in his garage. You'll hear about the ignition key found in his bedroom.

But I don't believe you'll hear evidence about Brendan Dassey's DNA. You won't hear the same evidence involving Brendan Dassey. There won't be any DNA, no blood, no saliva, no sweat, no hair, nothing. No fingerprints. No science that's going to point you to Brendan Dassey. Not the science that points to Steven Avery.

But, again, this is Brendan Dassey's trial, not Steven's trial. It's about a 16-year-old boy at the time. It's about a 16-year-old high school student with below average cognitive abilities. A fourth-grade reading level, a low IQ. It's about a shy introvert, socially inept, suggestible child. That's what this trial is about. You'll learn that this shy, socially inept, suggestible individual will meet two highly trained, intelligent, adult police officers. DCI Agent Tom Fassbender and Investigator Mark Wiegert. They're trained as adult law enforcement officers, trained to obtain confessions, and trained on Brendan Dassey. Alone with these two officers, Brendan makes several statements, as Mr. Kratz has already alluded to in his PowerPoint presentation, in his