Dear Judge Willis:
I indicated to you last week that the state had set Monday, January 22, as a deadline for the
Brendan Dassey defense team to consider our most recent plea offer in his case. That decision
was important in the above-referenced case, as all parties recognized the danger in calling
Mr. Dassey as a witness without first obtaining assurances from his assigned counsel as to his
Fifth Amendment rights against self-incrimination.
On today’s date, January 24, 2007, I received written correspondence from Attorney Mark
Fremgen, wherein Mr. Dassey indicates his unwillingness to resolve his case with a plea, and
recognizes that January 22 was the deadline set by the state. That letter is attached to this
correspondence.
I had asked Mr. Fremgen to include a statement regarding Mr. Dassey’s intent, if called as a
witness in the Avery trial, as to invocation of Fifth Amendment privileges; Mr. Dassey intends to
invoke his Fifth Amendment right against self-incrimination. I also asked Mr. Fremgen to
comment as to Mr. Dassey’s intent, if called and granted use immunity by the court; Mr. Dassey
apparently intends to testify in the Avery trial if granted use immunity.
The state, therefore, has several options available to it regarding Mr. Dassey’s testimony. The
state has conceded that two of the current charges filed against Mr. Avery (the sexual assault and
kidnapping counts) would necessarily need to be dismissed, or severed from the original
Information, should Mr. Dassey not testify in the state’s case in chief. In other words, the state
agrees that it could not ethically proceed to trial at this time, against Mr. Avery, on the sexual
assault and kidnapping charges, if our intent was not to call Brendan Dassey as a witness.
The state could, of course, proceed with all six counts against Mr. Avery, should we intend to
call Brendan Dassey, and request the court grant Dassey “use immunity” as outlined in a
statement of intent filed with the court early in these proceedings.
The state would also have the option of reserving Mr. Dassey’s testimony for “rebuttal
purposes,” should that become necessary, depending upon the defense offered by Mr. Avery.
Consistent with this approach, the state would once again direct that use immunity be granted to
Mr. Dassey, should that rebuttal testimony become necessary.
I wanted to provide this correspondence to the court, and opposing counsel, as soon as I received
it, and therefore am providing it at this time. I asking that this correspondence remain “sealed”
as it involves evidence which may or may not be introduced, and may influence potential jurors
if released to the public. I am also quite certain that the state is not required to publicly disclose
what witnesses it intends to call at trial, other than for the court and counsel’s information on
how to prepare.
Although plea negotiations are ongoing with Mr. Dassey’s attorneys (with discussions
continuing as recently as this morning), the state’s inclination is to ask the court dismiss (rather
than sever) the sexual assault and kidnapping charge against Mr. Avery. We intend to bring that
formal motion, as requested by the court, on February 2, 2007. I alert the court and counsel to
the state’s intent at this time as a matter of professional courtesy.
Although I’m quite certain the state could have proceeded with the sexual assault and kidnapping
counts, calling Mr. Dassey in the state’s case in chief, should Mr. Dassey’s position upon a grant
of use immunity change between now and trial (which is by no means out of the realm of
possibility), the court may be faced with a difficult decision as to whether it could proceed, even
with curative instructions; I do not wish to place the court in that position unnecessarily.
Obviously, if Mr. Dassey’s decision on plea negotiations materially changes the state’s position
between now and February 2, I will alert the court and counsel immediately.
I hope this assists the court and counsel in its trial preparation. As promised, I have alerted all
parties as soon as the information became available to me.
This matter will be made part of the official court record on February 2, 2007, when the danger
of unfair pretrial publicity is reduced.
Sincerely,
Kenneth R. Kratz