Jesse: Okay, you see the different attorneys battling out on whether or not this was actually stalking. I’m here right now with trail attorney, Brad Micklin to make some sense of this very strange case. Brad, good morning to you.
Brad: Morning Jesse.
Jesse: So if you look at the statute, I don’t want to get to legally here, it basically says that the Kachinsky would’ve had to engaged in a course of conduct directed at a specific person that would cause a reasonable person, under the same circumstances, to suffer serious emotional distress or to feal bodily injury to or the death of himself or herself or a member of his or her family or household. Right?
So if you listen to what he’s alleged to have done, making cat noise, staring at her, writing an email, the Facebook post, maybe trying to attempt to find her. Does that count as stalking?
Brad: I think in this case it will and I think mostly because of the statue. A lot of state, like New Jersey for instance, the statute would say something like, “Engaged in conduct intending to create emotional harm.” This says, “Engaged in conduct that caused emotional distress.” Meaning, he didn’t have to intend to do it. If there was an intention there, you can defend that easily. You could say, “Well, he was trying to make the relationship work.” Or “He was doing his job better.” Here it just has to show he did a lot of things that caused her emotional distress.
Jesse: But the second part of that statute, Kachinsky would have to know or should know that it would’ve caused emotional distress.
Brad: Or a reasonable person would. In this case he would because the second part to this is that she drew a line in the sand often. She said, “Please stop this.” She sent emails, she contacted the court administration office and they put people to supervise him inside. She sought a restraining order against him. Enough signals to say, “Don’t do this ever again.” And each step he continued to do it.
Jesse: What did you think about the defenses’ argument?
Brad: I don’t like it. I mean, you can only take what you have and he probably is a very strange person given the history that we hear about him. But it was a very weak opening. I mean, it was better than the prosecutors opening but I don’t think it’s a good defense.
Jesse: All right, well we have a lot more to talking about, including when the alleged victim testified all day yesterday. We’re going to recap it here on Law and Crime. We’ll be right back.
Okay, so that’s just part one of the alleged victim testifying yesterday. We’re going to play you all more of her testimony because it’s really something to watch. Now Brad, again, as we listen to this, yes, seems like very strange behavior, does it not? And the question is though, if you believe everything she’s saying, when does creepy, strange behavior turn into criminal charges?
Brad: I think, at this point because she sent the email saying, “Please keep this professional.”
Jesse: If she hadn’t, would it still have risen to that level? Because you’re saying she put him on notice, you’re crossing the line. But happens if she didn’t send him that email?
Brad: I think it would be different if she didn’t send it because then he wouldn’t have any reason to know his conduct was unwelcome. She testified they were friends, good friends, they were on Facebook. We all have these tools that tell us where are people are at different times, so nothing would be out of the ordinary at this stage if she hadn’t said that.
Jesse: Because in other words, the best way to defend the case like this would be like, “Well, she was an active participant. She was liking it, she never objected to it.” So the fact that she made that objection saved her whole legal case.
Brad: Yeah, because the whole defense opening argument was, every message she sent had a emoticons and smiley faces, trying to make it look like she was so friendly and so welcoming that she invited this conduct and she clearly didn’t.
Jesse: You know Brad, we can’t forget the elephant in the room here. How many people out there watch Making a Murder, right? How many people want to see Len Kachinsky go down because they felt that he provided inadequate representation to Brendan Dassey who many people feel was taken advantage of and was ultimately convicted. What do you say to all those people who were watching this right now?
Brad: Well, I mean, it’s justified because after that, they said, “Well, hey lets make him a judge. Let’s appoint him to be a judge.”
Jesse: Yeah, how’s it happen?
Brad: I have no idea and it’s an elected position I believe in Wisconsin. But it’s sort of like shuffling out of practice and into a government spot so that maybe he won’t be as noticeable. Or it was because his health was failing out, I don’t know. But nothing still changes the fact that it was creepy and it became unwanted very quickly.
Jesse: Does it bother you from seeing people on the legal profession who don’t uphold the standards that you want someone to uphold? I mean, he already had questionable behavior representing a high-profile case. And now he’s in judgeship position creating problems.
Brad: Yeah, I think it’s horrible. I mean, the law generally will say that the lawyers not held to a higher standard than any other person in a court of law. But I think they should be because we have a better understanding of. He knew at a certain point what he was doing was clearly, at least hostile work environment if not harassment.
Jesse: While this is still his trial, he hasn’t been found guilty of anything yet, day two is going to be today. We’re trying to get a court … we’re trying to be live in that courtroom, we’ll give you an update if we are. Let’s take a quick break, we’ll be right back.
You can’t make this up, the cat noises. Now Brad, I’m thinking this, I see a lot these harassment cases, see a lot of these stalking cases and usually there’s a sexual overtone under it, really that’s what’s going on. But I didn’t get any of that from what we’ve heard of the allegations. So my question to you is, if all of this is true, what was his end goal here?
Brad: I think, and what we’re going to hear later, I don’t want to ruin it for the viewers, but it seemed that the supervision and the attempt to control bothered him a lot. And it became often an issue he had with the court and the supervision, not necessarily with her. But then the more she started to say things to him about his conduct being unwanted, the more he became, I think, offended by that type of control also. So I think it was more control oriented, not sexual.
Jesse: But you think that’s what started it? I mean, even the cat noises, the staring, making strange comments. Or was it somebody who … What was he trying to get here? Was it an obsession, was he trying to get a friend? Was he trying to turn it into something sexual? What do you think in your experience of seeing these kinds of cases?
Brad: I think it was a lot of things. I think, first, his illness may have prompted a change in his behavior because I think they were saying he had several years to live. And I think that obviously changes how you look at things. They also described him as being idiosyncratic or strange. So you’re taking all this to begin with and now you’re starting to have a co-worker who first befriends him and then says, “Get away from me.” He has a job, he’s a judge but now they’re saying, “We’re going to watch you.” I think you put all this together, he just had a hard time dealing with it.
Jesse: It’s hard to explain but we’re going to try to do that. Lets take a quick break.
Cat noses Brad, cat noises. Okay, so I’m can’t believe I’m talking about this. Again, what is strange behavior and what is stalking? Cat noise.
Brad: And here’s where, but for her testimony, you would’ve thought maybe this is where it’s becoming sexual. But she’s such a good witness, she’s candid, she’s honest. And she said, “Well, he did it at other places, he did it other times.”
Jesse: Which helps this case, right?
Brad: Right, it helps that it wasn’t sexual. But it’s strange, I mean to sit there, and I think she said for 45 minutes, and do anything like that is strange.
Jesse: Yeah, I mean, especially, like you said earlier, maybe this would’ve been okay, but the fact that she said, “You’re crossing the line.” And he kept doing it, but we’ll see if that’s a strong part of her case. Let’s continue on a little bit more with this alleged victims testimony.
So we can’t forget the fact that this is a stalking trial but Mr. Kachinsky was also charged with two counts of violating a restraining order, those were misdemeanors, and they were dismissed. Now what we seem to know, Brad, is this was a strategy but I just don’t know what the strategy is. Why were they ultimately dismissed by the state?
Brad: And it’s hard to say. I mean, usually they’re going to be dismissed if they think their case is weak and they can’t-
Jesse: They were dropped, excuse me, yes.
Brad: I think here, they might have been worried that if they couldn’t prove the acts violated the order, then the acts would be viewed as not that bad and that might muddle down being able to show that it caused extreme distress.
Jesse: So how do you explain that? Give me an example.
Brad: Well have an order in place, if his conduct didn’t violate it, then how could his conduct cause her to be upset? If it’s lawful conduct, it couldn’t have bothered her as much or at least a reasonable person wouldn’t be bothered by it.
Jesse: It’s an interesting strategy. And they didn’t’ want to release to much information about why they did that because if they did, maybe it doesn’t signify the strength of their case. I’ve not quite seen a case like this before and we’re going to have to see which way it goes.
Again, we’re actively working to try to be live in that courtroom today. We will bring you more updates about this case as it unfolds. And we will replay some really important moments from this trial that you may have missed from yesterday. And for any of those fans of Making a Murder, not just if you’re fans of Aaron Keller ladies and gentlemen, you’re going to want to follow this trial and we’ll talk more about it. Lets take a quick break. We’ll be right back. Stay tuned here on Law and Crime.
Okay, the developments get stranger and stranger. Brad, here’s my question to you though as we listen to this, right? One of the things in the stature, the stalking stature, is that he had to know or should have known that his behavior was criminal, that it was creating an extreme emotional distress. The fact that he’s like, “Hey, lets get a beer, a drink, we’ll talk about a relationship.” Isn’t that evidence if you’re the defense, is that he doesn’t realize the extent of it, the gravity of serious this was?
Brad: It’s hard to say. I think at this point, there was a little bit of an ambiguity. And I think part of the problem they had in this case was, they kept sending him back together with her and saying, “Just be professional. Make it work-related.” So we’re listening to her emails that sound like they’re work-related but then he throws in that beer and wine thing. You don’t often drink beer and wine, at least I don’t drink beer and wine, at work. So I think he’s just trying to make it sound like its work related but it really isn’t.
Jesse: Yeah. Well, trying to understand behavior that’s maybe not understandable. Let’s continue on with the testimony of Mandy Bartelt. Okay, some bombshell developments in that testimony. First up, the idea that he said, “Don’t give me the silent treatment, me hate that.” That’s not good for the defense.
Brad: It’s not good for anybody. And he put it in writing, it’s bad enough he was saying it but he had to put it in writing.
Jesse: He’s a judge, he’s an attorney, he doesn’t know not to put this in writing?
Brad: And everybody’s watching him.
Jesse: And then idea here, really, if he didn’t contact the family members. And you see her getting very emotional on the stand talking about this. Did that cross a line where it entered into criminal behavior? Would it have still been criminal behavior just with the cat noises and the conversations or, again, was it the idea that he was going after other members of the family?
Brad: I don’t think you could look at any one piece. I think as it progresses, it makes it worse because there’s no reason to contact her mother, she’s a grown woman. He didn’t need to send her mom an email saying, “Oh, your daughter’s a great employee.” And I think he just did it for control because he’s saying, “Well, I can’t send you an email so you know what, I’m going to send it to your mother.”
Jesse: But lets say, really, he had a warped perception of reality, he had bad anti-social skill and didn’t realize what his behavior was doing. I mean, he keeps saying that she acted unreasonably in thinking this and feeling this way. Is that a defense?
Brad: I mean, might be a defense. I don’t know think it’s a defense for him. I mean, he was educated, he was political, he was a judge. So he obviously has a decent level of education and experience. Any common reasonable person would that this conducts not professional.
Jesse: And again, I’m still trying to understand what the goal was here. You think it’s about control, which we see a lot of these kinds of cases. It doesn’t seem to be sexual in nature but it was more about control.
Brad: Yeah, I think it was control and I think the more it went, the more he became obsessed with either the need to control it or maybe even with her, later, I don’t think at the stage, this part, that’s an obsession but I think it grows into that because he just keeps going and changing and getting worse.
Jesse: And she kept doing everything she was supposed to do. She told him to stop, she went to HR, and it still continued. And you see her getting very emotional on the stand talking about that. Let’s take a quick break. When we come back, a lot more to discuss.
Okay, you’re listening to the emotional testimony of the alleged victim in this case. Now, I’m back here with Brad Micklin. One of the things, the fact here, is that she said she didn’t quit her job because she’s the insurance holder for the entire family including their two children. And she enjoys her job and she liked to work there. The idea though that she didn’t leave, will that hurt her case?
Brad: Oh no. I found myself wondering that in the very beginning. Why didn’t she ask for a transfer? But part of me felt like she shouldn’t need to. She shouldn’t have to have left the job that she claims she loves so much and it provided the finances and the insurance for her family. She did what was appropriate, she said, “Look, I don’t appreciate the conduct, please stop it.” And he wouldn’t stop it. So I don’t think the burden’s on her to make it work right.
Jesse: Right, especially when she had a lot to gain from that position. And we’re listening to this testimony and I’m also curious, the defense said if you look at the facts, we might not argue what happened but there’s two different interpretations of that. People find him endearing. When he made that comment about her mothers location on Facebook, it’s just that he wanted to make her aware of that fact that this information’s public. Is the really an innocent interpretation or, really, is there something more sinister going on here?
Brad: I don’t think there’s something more sinister. I do think he was just quirky and acting poorly. But the statute doesn’t require, again, that he was intending to hurt her or was he intending to stalk or harass her. He just has to engage in conduct that led to her being upset. And we saw her on the stand, she’s noticeably upset.
Jesse: Very upset, that will help her case. That will help the states case, excuse me. Let’s continue on with Mandy Bartelt, really the main witness from yesterday.
Welcome to trial in 2018 where emoticons are entered into evidence. Now one thing to know, when she talked about bodily fluids, she said that found an envelope with blood smeared on it that she said Kachinsky left on her desk. Now Brad, we’re listening to this communication and its been argued by the prosecution that this is a form of retaliation against her because of the restraining order that was filed and her objections. What do you make of his behavior in light of everything that we’re learning, he alleged behavior?
Brad: I think it gets worse. Every time she tries to stop it, he gets worse or he finds a new route to take. First he harasses her or communicates in a way she says, “I don’t like.” Then he goes to the mother, then when they send in a supervisor so he can’t do this in the courtroom, he sends her another message that he’s angry about being supervised and that he doesn’t care how much risk he takes because she’s worth the effort, even if his wife finds out. I mean, it gets worse and worse as he goes.
Jesse: So he keeps digging himself, digging himself and digging himself.
Brad: In writing.
Jesse: In writing, which makes everything a lot worse. So if you’re the defense, you’re listening to this really strong witness for the prosecution, who do you call?
Brad: I don’t know if I call him. I think you have to, I think somebody has to get on the stand, I think he has to get on the stand and say, “This wasn’t my intention. I just got confused, I’m sick, I’m dying.” Something to make him sympathetic, but he has to testify.
Jesse: And let me ask you this, the idea here that, okay, you have these two people with two different interpretations, and Let’s say he testifies and she just testified. Is that reasonable doubt if you have two different interpretations?
Brad: I don’t think so because you’re always going to have two different interpretations. That’s why there’s a defense. But again, that statute only requires that he know that he caused her extreme distress and that he knew or should have known that it would. And I don’t think there’s a question about that.
Jesse: Yeah, well, it’s tough to see both ways. I mean, this is a very strange case and we have a lot more to talk about with this. So lets take a break on our end.
Okay, lets try to break this down Brad. So by trying to get in contact with her family members and her husband, was he trying to do the right thing you think? Was he trying to ease the situation or is he just making everything worse?
Brad: I think he’s making it worse. I don’t think he was trying to make it easy. Because, again, there’s no reason for us to contact her mother, but now, when he’s been told that that conduct wasn’t welcome, now he’s going to contact her husband. But here, he give Mandy the email first and says, “I want you to take a look at this. This is what I’m going to send to your husband.” That’s just not right.
Jesse: When you look at the stalking stature, which this whole case is about, obviously one of the things that they would have to prove is that he created circumstances where she would suffer serious emotional distress or where she would fear bodily injury or death to herself or one of her family members. Do you think that ever intended to hurt her? Do think that was ever a point of this behavior, if you believe her testimony?
Brad: I don’t think he intended to hurt her. But if the question is, did she believe her fear of bodily harm? When you get that fire and fury email, which I think he was quoting President Trumps threat to North Korea. I mean, that’s pretty serious. I would be afraid if I had a judge sending me a letter that I better be psychologically prepared for what’s next, that’s not appropriate.
Jesse: That’s a good point. All right, lets take a break. When we come back, a lot more to talk about with Len Kachinsky.
Wow, the brilliant, incredible testimony there from the alleged victim. And you got to ask the question, if all of this is true, did this guy ever do any work? I mean, was he just to fixated on her and her family that he didn’t even do anything? Brad, one of the things we always ask when any witness takes the stand, including the alleged victim, is whether or not they have an incentive to make up the story. Does she have any incentive to make up anything that she’s saying?
Brad: I don’t think so. I mean, there was some kind of mention that she may have sued him for intentional infliction but I think that was before the criminal and I think that was just another intent to get him to stop. I think her only incentive, at most, would be to keep her job.
Jesse: So he [inaudible 00:17:41] saying this is all innocent behavior. How do you explain way saying, “I know where your family lives.” Unless he’s saying, “I just know …” I mean, what can they argue here?
Brad: I don’t know much. It’s not about him knowing where the family lives, that he can do. He can go to whitepages.com and find them. But to lean over and tell her, “I know where they live,” is very different. It had nothing to do with finding them, had to do with sitting in a meeting … And remember, this meeting she testified has some kind of court officer or police officer holding it. So it’s a meeting with authority and he’s reaching over saying, “I know where your family lives.”
Jesse: And you said before, real quickly, that him being a judge adds to the terror of this.
Brad: Well because he’s educated, he’s in a power of position, he’s got to be influential. He had this movie issue in the back when he had, although been removed it wasn’t a positive thing. So he’s well-known, he’s been in the area for 30 years. And she’s just trying to keep her job and he’s doing everything he can to scare and intimidate her.
Jesse: Yeah, it’s a very interesting case and strange as can be. Now, again, we are having some difficulties getting a feed into the courtroom. But hopefully we can have one later on this afternoon. We want to be live in that courtroom and at the very least, we will make sure to update you about what is happening. Because this a very interesting case to follow whether or not you’ve looked into Making a Murder or not. We’ll take a quick break. We’ll be right back.
So this was the only witness called by the defense, Brad. I’m back here with Brad Micklin, trial attorney. And the question is here, the idea that defendant March could not change Officer Dora [Fontaine 00:19:18] report after it was logged, is very interesting because, remember, her report became a big question here, right? Her report was the idea of whether or not it included false information about Laquan McDonald 00:19:30 lunging or not. What did we gain, really, from this witness?
Brad: Well I think the main, or the main charge of this case, is conspiracy. So they need to show that the three worked together in concert. So if there was a report that had similar identical comments with same names, then it would support that maybe they did. But if the name was put on by another individual, not the actual person making the statements, then they didn’t act together, it was the same statement.
Jesse: Why didn’t they call anybody else to the stand?
Brad: I don’t know. I think the case was probably viewed as a very weak one, which is why I think they took a bench trial instead of a jury trial. I think when the law is clearly … or when the law is on your side more so, you waive a jury, and you keep it a lot simpler because a judge knows what to look at and what the [inaudible 00:20:15] are.
Jesse: What is it like being a judge in this case? I mean, why did she say, “I’m going to render a verdict on December 19.” That’s a ways away. Is that because she’s one person having to go through all of this information or is there another reason?
Brad: I think it’s that. I think the judge is more accountable for a decision than a jury is. A just makes a decision and goes home, a judge has to deal with the media, the politics, what’s going to happen in the day, what’s going to happen to the police department in the town where the judge is sitting. So there’s a lot more to consider that a jury doesn’t have to.
Jesse: It’s a unique case for a lot of different reasons, including the fact that it’s a bench trial. Let’s take a break.
I want to talk about that last part right there because that was a key moment for Detective Nancy [inaudible 00:20:54]. Now, Brad, they were just getting into the idea how she refused to appear before a special grand jury. She was represented by James [McKay 00:21:02], the one whose representing David March and that she would have asserted her Fifth Amendment right. What’s going on there? What do you make of that?
Brad: I don’t know. The most I can glean from the testimony is they were trying to suggest that maybe that March may have gone in and changed the report after she entered the information. Because they went in a lot about if it would’ve been printed, it would’ve had her name and number but it didn’t. I don’t really know. The attorney was objecting it, it wasn’t relevant to the reason she didn’t appear. So I’m not really sure what ties into that.
Jesse: What I seem to be getting from her testimony is that anything Dora Fontaine had put into a report was all Dora Fontaine. That it was not influenced, changed, manipulated, edited in any way by David March. That because what the defense attorney for David March keeps want to say is that Dora Fontaine is not someone you can trust. She changed the story to save her job. What would you say to that?
Brad: I mean it’s possible because again, this whole case is about conspiracy. So if something did occur, maybe there was a conspiracy just maybe it wasn’t these three defendants.
Jesse: Interesting. Let’s continue on with her testimony. And I believe this is still cross-examination.
Okay, a little bit of back and forth there in the cross-examination. Brad, one the things you can’t help forget is how bad does this made the Chicago Police Department look? I mean, when were covering Laquan McDonald, the Jason Van Dyke shooting, the Jason Van Dyke trial, now were covering this, doesn’t cast them in a good light.
Brad: No, and this is one of many police shootings that have been covered recently, and the video is so bad. Not only is the video so bad, but then when you see Van Dyke testify, clearly contradicting what the video shows. And you only had to see the video 100 times before he got on the stand and he still completely turned the story around which is why he was convicted.
Jesse: So the argument is that the reports that they filed don’t match the video. What would you say the argument that keeps putting forward that they came out with their reports before they saw the video?
Brad: Yeah, I think that’s the main defense. I think the whole issue when you have a police shooting is perception. It’s a high-stress time, there’s a lot going on, there’s a lot of people around, the recollections are going to be skewed. It’s hard to prove a conspiracy just because three people see things differently.
Jesse: So they could be wrong, they could be wrong in the reports whether or not they were not thorough enough, whether or not this is just what they believe. But it doesn’t necessarily mean illegal behavior.
Brad: Right. Conspiracy requires an agreement to commit a unlawful act. If they just did something together that they thought was true and accurate, it’s not unlawful, it’s not conspiracy.
Jesse: Would you be surprised if they’re found guilty?
Brad: I would be. I think given the high stress nature of this and the lack of proof of it, then some emails of third parties that were introduced and it’s a bench trial, I don’t see them being convicted of conspiracy.
Jesse: What about the similarity in the reports, the language?
Brad: I don’t find that that’s unlawful. I mean, I would believe that they’re accustomed to writing reports if there’s certain language that they put in. And I’m not above thinking that there is a fraternal bond where they try to protect one another. And so they may have certain phrases that use but I don’t believe they conspired to use them together.
Jesse: All right, Brad Micklin, thank you so much for coming on. Have a great weekend. You got to come back.
Brad: I will. Thanks Jesse.