1.Court Colloquy on Brendan Dassey's Decision to Testify
91 lines(Reconvened at 8:34 A.M. Jury out)
THE COURT: Good morning, ladies and gentlemen, Counsel. This is State of Wisconsin vs. Brendan Dassey, 06 CF 88. Appearances, please.
MR. FALLON: Good morning, Your Honor. May it please the Court, the State continues in its appearance by Special Prosecutors Ken Kratz, Norm Gahn, Tom Fallon.
MR. FREMGEN: Attorney Mark Fremgen appears with Attorney Ray Edelstein. The defendant appears in person.
THE COURT: Are you set to proceed, uh, Mr. Fremgen?
MR. FREMGEN: Yes, Judge, we, uh -- at this time our first witness will be the defendant, but we need the Court to proceed with the colloquy with Mr. Dassey to ensure that, um, he is making the decision freely, voluntarily to testify.
THE COURT: All right. If you'd move the microphone over there. Mr. Dassey, can you hear me?
BRENDAN DASSEY: Yes.
THE COURT: Uh, it's my understanding you wish to testify?
BRENDAN DASSEY: Yes.
THE COURT: You understand that you have a constitutional right to testify?
BRENDAN DASSEY: Yes.
THE COURT: You have a constitutional right not to testify?
BRENDAN DASSEY: Yes.
THE COURT: Do you understand that decision, whether or not to testify, is for you, and you alone, to make?
BRENDAN DASSEY: Yes.
THE COURT: That doesn't mean that you can't get advice from family, from friends, from your lawyers, but you understand, in the end, it's your decision?
BRENDAN DASSEY: Yes.
THE COURT: Has anyone made any threats or promises to you in an attempt to influence your decision?
THE COURT: Have you discussed your decision, whether or not to testify, with your lawyers?
BRENDAN DASSEY: Yes.
THE COURT: Have you made a decision as to whether or not you want to testify?
BRENDAN DASSEY: Yeah.
THE COURT: What is that decision?
BRENDAN DASSEY: That I want to.
THE COURT: You want to testify?
BRENDAN DASSEY: Yeah.
THE COURT: All right. Uh, let me address counsel. Mr. Fremgen, have you had sufficient opportunity to thoroughly discuss with your client, uh, the case and his decision whether or not to testify?
MR. FREMGEN: I can say for the record that we have spoken at least a half dozen times, specifically, on that one issue. Um, and recently -- as recently as yesterday.
THE COURT: Are you convinced that he understands the implications of him testifying and not testifying?
MR. FREMGEN: I believe so.
THE COURT: Are you satisfied that the decision he announced on the record here is being made knowingly, intelligently and voluntarily?
MR. FREMGEN: I don't know if I can answer that question, Judge.
THE COURT: Well, is --
MR. FREMGEN: I believe he's -- I'm sorry. I believe he knows what he's doing and I believe he's voluntarily agreeing to do it.
THE COURT: All right. So it's knowingly and voluntarily being made?
MR. FREMGEN: Yes, Judge.
THE COURT: You're -- you're suggesting that, uh, it is being made by him, and him alone, in this instance?
MR. FREMGEN: That I don't know if I can answer either.
THE COURT: All right. The Court will find, based on this record, that the, uh, decision of this defendant to testify is being made, uh, knowingly and voluntarily. The Court has, uh, had a colloquy with him. The Court, uh, uh, believes that the defendant has -- has made this decision, realize it's his alone to make -- before I go through this, Counsel?
MR. KRATZ: Given Mr. Fremgen's, um --
THE COURT: Reticence?
MR. KRATZ: -- reticence, uh, perhaps, uh, the Court should inquire of Mr. Dassey if -- if there isn't something else, or if there, uh, uh, isn't an explanation for -- for that. Our concern, as you know, Judge, is to make this complete record. Uh, if the Court is, uh, reluctant to do so, I certainly understand that, but that was our -- our, um --
THE COURT: I -- I understand, uh, the State's concern. Mr. Fremgen has positively averred that the decision is being made knowingly and voluntarily. I've gone through the colloquy with -- with Mr. Dassey. I -- I don't know at this stage, uh, absent, uh, getting into matters that, uh, I have no business inquiring in, I can be doing.
MR. FREMGEN: If -- if I can add, Judge --
THE COURT: Go ahead.
MR. FREMGEN: -- you -- you had asked if I thought this was an intelligent decision?
THE COURT: Correct.
MR. FREMGEN: And -- and not that intelligence is different, viewed from -- from a legal standpoint than common sense, I -- I don't know if I can honestly say that if there -- if -- if it's being made based upon, um, reasonable and logical, uh, decision-making.
And the Court also inquired as to whether Mr. Dassey has talked to others besides ourselves.
THE COURT: Right.
MR. FREMGEN: And I'm sure he has. In fact, I know he has. And, for that reason, I can't say for certain that the decision is solely his. I can say to you -- to this Court, that he has told us this is his decision, and he wishes to pursue testifying.
THE COURT: Well, let me, then, reask Mr. Dassey. Would you pull the microphone over there? Mr. Dassey, I've told you that, in the end, this decision is yours, and yours alone, to make; correct?
BRENDAN DASSEY: Yes.
THE COURT: And you understand that?
BRENDAN DASSEY: Yes.
THE COURT: Uh, you've talked to other people about this other than your lawyers?
BRENDAN DASSEY: Yes.
THE COURT: Uh, have those -- are you being forced to do this in any way do you feel?
THE COURT: You're doing this voluntarily?
BRENDAN DASSEY: Yes.
THE COURT: You understand there may be some risks to your testifying?
BRENDAN DASSEY: Yeah.
THE COURT: And you're willing to take those risks in testifying?
BRENDAN DASSEY: Yes.
THE COURT: No one's promised you anything in order to get you to do this?
THE COURT: You're not threatened in any way?
THE COURT: And this is -- in the end, it is your decision; is that correct?
BRENDAN DASSEY: Yes.
MR. KRATZ: That -- that's fine, Judge. Thank you.
THE COURT: Yeah. I don't know where else we can go here. So, let's, uh -- we'll get the jury in and let's proceed.
MR. KRATZ: There's one -- one other thing, Judge. The, uh -- as long as the jury is out, I had promised the Court and, uh, Madam Clerk that, uh, there was a videotape clip of an answering machine that I -- that I think was on the first day of testimony, that we would have a copy of that made and marked to make, uh, part of the record. Over the weekend, we've had an opportunity to make a copy of that, and I just wanted to complete the record by providing a copy of that, uh, uh, clip as I had promised early on.
THE COURT: Had we previously marked it as an exhibit?
MR. KRATZ: No.
COURT CLERK: No.
THE COURT: All right. So this will be Exhibit 225?
COURT CLERK: Yes.
MR. KRATZ: That's all we have, Judge. Thank you.
THE COURT: All right. Specifically, it's an exhibit of -- it's a CD of a -- a --
COURT CLERK: It's a CD of the answering machine --
THE COURT: All right.
COURT CLERK: -- clip.
THE COURT: All right. We can bring the jury in, then.
COURT CLERK: So that's received as --
THE COURT: Yeah.
(Jury in at 8:42 a.m.)
THE COURT: Morning ladies and gentlemen. Be seated. Uh, you may proceed.
MR. FREMGEN: Judge, at this time we'll call Brendan Dassey.