Brendan Dassey: Factual Innocence Denied

July 21, 2018

It was a vague and apathetic silence that consigned Brendan Dassey’s fight for justice among the 99% of cert petitions denied by the justices of the United States Supreme Court.  The jaunt from docketing to distribution to denial was breathtaking. The indisputable realisation that Brendan’s egregious miscarriage of justice had been unceremoniously overlooked by the American legal process was unfathomable to the thousands of supporters both scholarly and civilian and it wore like a bruise.

 

Is Brendan’s case one that polarises and divides? Did Brendan’s petition for certiorari address an issue of law in need of reiteration across the circuits? What did the cert memo feature? How could a rule of four not see what four federal judges before them had most eloquently seen? Why not Brendan?

 

The deafening quietude and lack of accountability only compounded the injustice. Of course, there are an infinite number of mediating factors at play, a legislative spectrum dotted with maimed legal reasoning and bureaucratic tactics, not at least AEDPA’s constrictive doctrine.

 

Center on Wrongful Convictions of Youth

 

June 25th, 2018 was the afflictive culmination of a 12-year odyssey for Brendan, his family and his inexhaustible legal tribe. I mourned for the loss of optimism and I grieved for all the vulnerable, intellectually challenged and developmentally delayed Brendan’s that make up to 10%¹ of the prison population across the US. I was selfishly devastated that Brendan would not yet experience the scope of support that had opened before him, arms outstretched in welcome. Not yet, anyways.

 

A Confession is Like no Other Evidence

 

The tragedy of a false and coerced confession while seemingly counterintuitive to those unable to comprehend why an innocent person might confess to a crime they have not committed is endemic in the juvenile and intellectually disabled population. There is mounting empirical evidence to suggest that common interrogation tactics induce a brutally high percentage of false confessions. But this is not new rhetoric, these are not new statistics. The Innocence Project tracked 354 DNA exonerations and determined one in four involved a false confession. Statistics are startling, however, the phenomenon according to the National Registry of Exonerations can take us further back to the wrongful conviction of Jesse Barnes of Maryland who had an IQ of 62 when he signed a police-written confession to the sexual assault and murder of his girlfriend in 1971. He spent 40 years in prison for a crime he did not commit.

 

The harrowing stories of Jesse Barnes, Jerome Bowden, Jesse Misskelley, Devontae Sanford, Jeffrey Deskovic and Marty Tankleff are but a tragic reminder of the thousands of told, untold or undocumented juvenile false confessors. The utopic ideology of the “special caution” directive long lost in the maze of small town prosecutors and ill-informed jurors. So where to from here?

 

The Circuit Court Fractured

 

The circuits will continue to interpret voluntariness and special care with self-important whimsy, divided in reliability and technique, as the most vulnerable among us are lost to post-conviction appeal processes that demand the prowess of organisations such as the Center on Wrongful Convictions of Youth who know that “a confession is like no other evidence” in its “profound impact…upon the jury” (Arizona v Fulminate 499 US. 279, 296 1991). And there will always be those who deny in the face of unquestionable research.

 

However, there is legal recourse to be found via other pathways for Brendan. The State court seems weighted beneath potential relief as does the fight to oust the incumbent Governor of Wisconsin and the current Attorney General (Scott Walker and Brad Schimel). With primaries in August conceivable political remedy may provide Brendan’s legal team yet another avenue to explore in the fight for justice and freedom for young Brendan.

 

Nothing is absolute, as the great Muhammad Ali said "Impossible is temporary. Impossible is nothing” We’ve got work to do, because why not Brendan too?

 

1 Robert Perske

 

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