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  • Douglas Starr

In the “Making a Murderer” Case, the Supreme Court Could Help Address the Problem of False Confessio

Brendan Dassey, whose case was featured in “Making a Murderer,” is serving a life sentence that was entirely based on his confession, with no physical evidence linking him to the crime.

Photograph by Eric Young / Herald Times Reporter / AP

This month, the U.S. Supreme Court will decide whether to review the case of Brendan Dassey, the Wisconsin man who, as a teen-ager, confessed to the 2005 rape and murder of a young photographer named Teresa Halbach. Dassey’s videotaped confession to police, portions of which were included in the 2015 Netflix documentary “Making a Murderer,” bore so many hallmarks of coercion that, after the documentary aired, hundreds of thousands of viewers signed petitions calling for his pardon. In 2016, Dassey’s attorneys, arguing that his confession was both false and involuntary, convinced a federal judge to overturn his conviction, but that ruling was later reversed by the U.S. Seventh Circuit Court of Appeals. At present, Dassey continues to serve the life sentence he received following his initial conviction—one that was entirely based on his confession, with no physical evidence linking him to the crime.

After the Seventh Circuit’s ruling, Dassey’s attorneys filed an appeal to the Supreme Court. In some ways, the issues at stake in the case are overdue for review. The Court has not weighed in on the so-called voluntariness issue since DNA-based exonerations began to reveal just how common false confessions are in our justice system. According to attorneys from the Innocence Project, an organization that uses DNA evidence to exonerate wrongfully convicted people, more than a quarter of all exonerated people were originally convicted following false confessions. Juveniles are particularly susceptible to offering false confessions, as are people with intellectual disabilities.

Dassey’s case could provide some much needed attention to the subject of police interrogations. When interviewing a suspect, most police officers in the U.S. rely on some version of the Reid Technique—a method that has been denounced by many psychologists and jurists as outdated and coercive, as I detailed in this magazine, in 2013. And, even if the Reid Technique weren’t itself seen as a problem, much of the training that officers receive is informal, and happens on the job. The result is that the quality of interrogation in any given police department depends almost entirely on the individual police officers’ experience.

It’s a fundamental premise in American law that no one should be forced to confess to a crime that he or she didn’t commit. The Supreme Court took up the subject in earnest in the nineteen-thirties, after a federal commission found that police across the country commonly used torture to extract confessions; in 1936, the Court reversed the convictions of three African-American men from Mississippi who confessed to murder after all three were whipped and one hung by the neck from a tree. “The rack and torture chamber may not be substituted for the witness stand,” Chief Justice Charles Evans Hughes wrote. That decision cemented the constitutional protection that only confessions given “voluntarily” could be accepted in court.

In the decades following, the Supreme Court narrowed the definition of voluntary confessions to exclude those made after threats or psychological pressure from interrogators. Yet this standard proved subjective. Through the years, the Court rejected as involuntary a confession that was given at the moment of arrest, sustained one that was given after fourteen days of interrogation, rejected one given after the accused was stripped naked, and sustained one given after police placed the bones of the murder victim in the suspect’s lap.

By the nineteen-sixties, the notion of voluntariness had become so troublesome that jurists sought a way to clarify the matter. They found it in the case of Ernesto Miranda, a Phoenix man who confessed to kidnapping and rape without being told of his right to remain silent and to have an attorney. The Supreme Court overturned his conviction, in 1966, in a decision that set a clearer standard: if police read a suspect his or her so-called Miranda rights, any subsequent confession would be generally admissible in court; if they hadn’t, then it wouldn’t be. “The idea was to get away from this mess of voluntariness and get some more clarity,” Eve Brensike Primus, a law professor at the University of Michigan, told me.

Yet Miranda doesn’t effectively prevent false confessions, because police have not been held fully accountable for what takes place after a warning, during interrogations. Dassey’s interrogation provides a vivid example. He was a sixteen-year-old with poor social skills and a borderline intellectual disability when police pulled him out of his classroom for questioning, in February of 2006. Like some eighty per cent of people who face interrogation, he waived his Miranda rights. (Most people do so in order to appear coöperative.) Over the next forty-eight hours, he faced four separate interrogation sessions without the presence of an attorney. One of his questioners, the investigator Mark Wiegert, later testified that he had received formal training in the Reid Technique.

Hayley Cleary, a criminologist at Virginia Commonwealth University, has studied the kind of interrogation training American police receive. In 2016, she published the results of a survey of three hundred and forty mid-career police officers, from all over the country, who attended the F.B.I.’s in-service training in Quantico, Virginia. She found that about fifty-six per cent had received some formal training in the Reid Technique, nearly ninety-one per cent reported that they learned on the job, and just over eight percent had studied the nonconfrontational techniques favored by British police departments. (The numbers add up to more than a hundred per cent because many officers trained in more than one method.)

“Virtually all of them are learning back-of-the-envelope kinds of training—tricks and strategies from the folks who come before,” Cleary told me. “It’s terrifying when bad information is spreading from officer to officer and interrogator to interrogator.”

The videos of Dassey’s interrogation illustrate Cleary’s point. Over many hours of interviews, the investigators appear to do exactly what psychologists and legal experts warn not to do with juveniles and other suggestible people—they manipulate Dassey, scold him when he gives the “wrong” answers, and steer him to the right ones. In one exchange, the police repeatedly ask Dassey what happened to the victim’s head. Dassey gives several wrong answers, including that her hair was cut and that her throat was cut. Finally, Wiegert blurts out, “All right, I’m just gonna come out and ask you. Who shot her in the head?” Such tactics can easily overwhelm a young person’s will. Dassey confessed, and was found guilty and sentenced to life. His uncle Steven Avery was also found guilty and given a life sentence.

Dassey’s attorneys hope to reverse the conviction and reinforce the “voluntariness” protection. They want to reinvigorate the idea that courts should take special care in examining whether confessions are given freely or as a result of coercion. “Even though this case is specifically about children, the broader implication is that courts need to be enforcing rules that guard against involuntary confessions—rules that apply to everyone,” Laura Nirider, one of Dassey’s attorneys, told me. “We want to remind police officers that, in order to get accurate and voluntary statements, they need to be focussed on whether the person they’re questioning is confessing voluntarily, and not just on whether they’ve been read their Miranda rights.”

Others hope to intervene earlier in the process, by training police officers to conduct interviews in less coercive ways. In March, 2017, Wicklander-Zulawski & Associates, a nationally known interrogation-training company, announced that it would stop teaching Reid-style interrogation in favor of the nonconfrontational interviewing style used by British police. Since then, the company has trained about a thousand personnel from numerous police forces around the country, according to Dave Thompson, the company’s vice-president of operations. That’s a start. “We now spend about a third of our time in class talking about false confessions,” Thompson told me. “We use the Dassey case as an example of what can go wrong.”


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