It was March 1st, 2006, the Mishicot sky threatened snowfall as a vulnerable 16 year old Brendan Dassey unbeknownst to his mother, family or self was literally hours away from being indicted on a first-degree murder charge. An intellectually limited Dassey with no comprehension of the pernicious situation he found himself in, succumbed to the guilt presumptive REID interrogation technique, as he falsely confessed to the murder of local photographer Teresa Halbach.
Do you think I can get there before one twenty-nine?
“We wanna be able to tell people that Brendan was honest…he’s honest, he’s a good guy. He’s gonna go places in his life” Twelve years on Detective Wiegert's captious statement rings hollow, as Brendan never got to finish his project due in sixth hour, Brendan sits in an 8 x 4 in rural Wisconsin, Brendan is still waiting to ‘go places’.
United States Supreme Court
Much has been written and documented in the case of Brendan Dassey, with the post Making a Murderer climate burgeoning with criminal justice reform and wrongful conviction advocates righteously intoxicated by the search for justice as Brendan’s case meandered through the federal appellate courts. Culminating in a petition for certiorari at the United States Supreme Court, an unforgiving cert pool denying Dassey at the final hurdle. Legislatively hamstrung by AEDPA a law created to gut the federal writ of habeas corpus and American jurisprudence, Brendan continues to wait for justice.
Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey
Many books have been written on the case to date, with Kenosha native, Michael Cicchini’s forthcoming ‘Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey’ set for release, November 8th (available to pre-order via Amazon). Cicchini is both a criminal defense attorney and author with three books, 20 law review articles and is a contributing writer with blogs and monthly columns in The Wisconsin Law Journal, Criminal Element, the Marquette University Law School Faculty Blog and the insightful Legal Watchdog blog.
Michael Cicchini is a vocal advocate and proponent for criminal justice reform that strengthens constitutional rights, in particular Wisconsin’s unconstitutionally low burden of proof and weak procedural safeguards. Recognised amongst his peers with a collection of accolades over the past 12 years including ‘Top Criminal Defense Lawyer 2013’, Cicchini first came to Making a Murderer fans via his immersive analysis of the Steven Avery case in ‘Convicting Avery’.
With his upcoming release ‘Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey’ pending, I asked Cicchini his thoughts on Brendan and why he felt compelled to revisit the case with a renewed focus on Brendan’s treatment at the hands of Wisconsin’s fractured (in)justice system.
After the international success of Convicting Avery, there are many Brendan Dassey supporters waiting for your analysis, Anatomy of a False Confession. What compelled you to turn the spotlight on Brendan?
One reason is that the documentary showed only a small part of what the government did to Dassey. I wanted to expose everything. I wanted to show how these government agents operate, including how they select their target, how they bypass Miranda protections, how they get the suspect to confess, how the prosecutors spin all of this for the jury, and how the courts ignore all of the constitutional violations. I also wanted to show that Dassey’s case is not an outlier. Police, prosecutors, and judges in Wisconsin, and across the country, routinely use these tactics against children and adults – it was business as usual.
And another reason is this: I’m a criminal defense lawyer and writer in Wisconsin. To have this happen right in my backyard, well, it was just too big of a target to let pass.
When did you first hear of Brendan’s case?
Living in Wisconsin, I’m sure I heard of Dassey’s case as it was happening – although it was Avery’s case that got most of the media attention. But I never really got into the details of it until Making a Murderer came out. The great thing about that documentary is that it put Wisconsin’s criminal justice system in the spotlight for everyone to see.
Can you give your readers an insight into your approach and what element of this injustice the book focuses on in particular?
The book first explains that false confessions happen all the time – not only in the interrogation room but in the courtroom. What I mean is this: Defendants falsely confess all the time by taking plea bargains for things they didn’t do. Why would defendants do that? Because after consulting with a defense lawyer and carefully considering their options, they determined (often correctly so) that pleading guilty to something they didn’t do is in their best interest. (For example, often the more serious charges will be dismissed or the defendant can increase his chances of getting a fine or probation.)
But in Dassey’s case, the interrogators intentionally skewed that calculus and prevented him from making a rational decision. Instead of having a lawyer advise him, Dassey’s new “friends,” Wiegert and Fassbender, convinced him that admitting guilt right then and there would be in his best interest. If he did so, the interrogators said, they would “go to bat for him” and protect him from the bad government agents who wanted to prosecute him. And, if he played his cards right, he could even get back to school that same day!
So, the book explains this dynamic to show why people falsely confess: they think it is in their best interest to do so. But the bulk of the book dissects the interrogation tactics and the courtroom ploys that the detectives and the prosecutors used to get the confession and win the conviction. (I wanted to shine a spotlight on this sophistry that we defense lawyers witness on a regular basis.) I also discuss the appeals process and expose the judicial sleight of hand that kept Dassey behind bars. The book then concludes with a section on proposed legal reforms, and finally a postscript chapter to update readers on Dassey’s case.
As a criminal defense lawyer in Wisconsin, what type of consensus is there in regard to Brendan’s case amongst the local law community?
I think the consensus is, without question, that Dassey’s rights were violated. But this is pretty obvious. Many of the federal court judges that reviewed the case even said so, and the only reason the state won a razor thin decision at the Seventh Circuit Court of Appeals was because of a hyper-technicality known as the AEDPA – something I explain in the book. People often think that defendants who win cases escape justice on “technicalities.” But in reality, our constitutional protections are incredibly weak, and it is the state, not the defense, that often wins on technicalities such as the AEDPA and other legal standards.
Beyond that, I think nearly every lawyer in Wisconsin – outside of prosecutors and former prosecutors – believes that Dassey is actually innocent of the crimes. The state couldn’t put together a cogent allegation against him, let alone any evidence to support the allegation.
What are your thoughts on the Supreme Court’s decision to not take Brendan’s case?
There is no surprise there, as our nation’s high court accepts only a fraction of the cases it receives. To me, the bigger surprise is that after Dassey’s 2-1 win in the Seventh Circuit, that court granted a full panel review, which is also very rare. Then, oddly, they didn’t even use a full panel. The deck was stacked just enough to defeat Dassey by an equally razor thin margin.
What legal pathways exist for Brendan with the State’s legal system now? Is there legal relief to be found?
I practice trial law, not appellate law, so I’m not sure what his lawyers have planned. Dassey has exhausted his state court appellate rights and was lucky enough to work his way into the federal system where he has exhausted those rights as well. One thing that comes to mind is “new evidence,” like Avery got in the Beerntsen case (before the Halbach case). But, interestingly, there was never any evidence against Dassey to begin with, so I’m not sure if this is a realistic possibility. If there was new evidence, it might have to come in the form of evidence that Avery was innocent of the Halbach murder. If Avery can demonstrate his actual innocence, as he did in the Beerntsen case, then maybe Dassey’s case will crumble too. Beyond that, Dassey’s appellate lawyers may have other ideas as well.
Juvenile justice is in desperate need of reform in Wisconsin, as we see other states taking strides. How can the system prevent another Brendan Dassey from occurring? What reform do you think is most needed in regard to juvenile justice in Wisconsin?
I practice adult criminal defense, not juvenile defense. And Dassey was tried as an adult. In Wisconsin, 17-year-olds are automatically considered “adults” for all criminal cases; often, younger children, such as Dassey, are brought into the adult system based on the crime alleged or other factors. Wisconsin legislators love big government, punishment, and supervision, and they love to pull citizens into the adult system at an early age.
But the reform measures for both the juvenile and adult systems probably overlap to a great extent. I propose several reforms in the book, ranging from how Miranda warnings are delivered, to changes in the trial rules, to the appellate standards that should be used when reviewing coerced confessions. But as I also explain in the book, when reforming the system, we have to anticipate ways that police, prosecutors, and judges will thwart that reform.
For example, just a few months before Dassey was interrogated, there was a big legal reform in Wisconsin: interrogations had to be recorded. But what good did that do Dassey? His interrogators blatantly violated his rights – including by making threats and false promises of leniency – and the so-called confession was obviously coerced and was contradicted by all known evidence. If the courts don’t have the courage to suppress that confession, will there ever be a confession that they will suppress?
When is Anatomy of a False Confession available? And will it be available internationally?
Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey, will be published on November 8, 2018 by Rowman & Littlefield Publishers, Inc. It is currently available for preorder at several outlets, including Amazon, and will also be available internationally.
In the meantime, I’ve continued to advocate for legal reform in Wisconsin. In one of my recent projects I’ve teamed up with research psychologist Lawrence White, who was featured in episode 3 of Making a Murderer. In two controlled studies, he and I have demonstrated that Wisconsin’s burden of proof in criminal cases falls well below the constitutionally-mandated “beyond a reasonable doubt” standard. Not surprisingly, Wisconsin prosecutors are fighting vigorously to oppose all legal reform. We also just published a third study that will be of interest to defense lawyers in states that don't define "reasonable doubt" at all. For more information on that and my other legal reform efforts, visit www.CicchiniLaw.com.
"Michael Cicchini has written a wonderfully descriptive and insightful book, the definitive account of the interrogations of Brendan Dassey and his coerced, contaminated and (almost certainly) false confessions. Cicchini masterfully describes the tricks of the interrogation trade . . . Anyone who watched the Netflix series Making a Murderer with rapt fascination will want to read this book." -- Richard A. Leo, Ph.D., author, Police Interrogation and American Justice; Professor of Law & Psychology, University of San Francisco
Michael Cicchini received his JD, summa cum laude and first in class from Marquette University Law School and has been in practice since 2002. He is the author of three other books including “Convicting Avery,” “ But They Didn't Read Me My Rights!” and “Tried and Convicted.”
Twitter: Follow Michael @LegalWatchdog