Brendan Dassey and The Conscious Absence of Expert Testimony: A Conversation with Dr. Lawrence T. Wh
December 2006 saw Wisconsin in the glacial grips of a wintery blizzard with high snowfalls blanketing a state preparing for the upcoming trials of the two protagonists in the Teresa Halbach case. Nine months had lapsed since situational forces collided with the behavioural and intellectual idiosyncrasies of 16-year-old sophomore Brendan Dassey. A collision that resulted in the extortion of a false, coerced and uncorroborated confession.
With the contentious beginning of Avery’s voir dire procedure looming, defence counsel Jerry Buting and Dean Strang set upon assembling expert witnesses to assist a panel of lay people in the decisional legal adjudication of a densely fact bound case. Among those assembled to give expert witness testimony was Wisconsin Professor of Psychology and Legal Studies; Dr. Lawrence T. White.
Retained to deconstruct the prosecutions plausible introduction of Dassey’s statements, or if Brendan himself testified, Dr. White’s expertise saw him equipped to rebuke the expert testimony of Joseph Buckley, then President of REID and Associates, if called upon.
“… I also believe Dassey deserves to have an expert who can refute Mr. Buckley, if and when Buckley says the REID Technique does not elevate the risk of obtaining unreliable statements or false confessions.” - Dr. Lawrence T. White
A learned professional Dr. White earned a Ph.D. in social psychology and became a professor of psychology and legal studies at Beloit College in Wisconsin (circa 1984). Having conducted research on the reliability of witnesses and teaching on statistics, research methods and both forensic and social psychology, he has consulted on more than 40 criminal cases in Wisconsin, Illinois and Minnesota. Publishing more than a dozen articles and research reports, he has collaborated with Wisconsin lawyer and author Michael Cicchini (publications in refereed journals) and testified as an expert witness in Wisconsin courts on more than 14 occasions.
Dr. Lawrence T. White in Conversation
I approached Dr. White to discuss his thoughts on Brendan Dassey’s false confession and the trajectory of the case since his involvement in 2006.
A respected forensic and social psychologist in Wisconsin how did your involvement with Jerry Buting and Dean Strang come about in 2006?
A: Jerry Buting and Dean Strang hired me in December 2006 to review documents and video recordings related to the interrogation and confession of Brendan Dassey. Jerry asked me to write a report in which I assessed (1) the interrogation techniques used by the police and (2) the voluntariness and reliability of Dassey’s statements.
Jerry and Dean needed an evaluation because they wanted to be prepared in case Brendan’s confession was entered into evidence at Avery’s trial. Fortunately for Avery, that didn’t happen.
Prior to your involvement were you aware of the case and its protagonists?
A: No, I was not aware of the case in any meaningful way. I knew Avery had been charged with the murder of Teresa Halbach because that was really big news in Wisconsin, but I didn’t know the details.
At that time, Avery was a celebrity of sorts because he had been exonerated and released from prison just two years earlier. Avery sometimes appeared at public events that addressed the problem of mistaken eyewitness identifications and the need to reform identification procedures used by the police.
Had there been any type of consensus on the false confession of Brendan Dassey in academic circles?
A: Not at the time of Dassey’s trial. To my knowledge, I was the only expert who had seen the interrogation videos until Professor Richard Leo wrote a report for Drizin and Nirider as part of Dassey’s appeal. Drizin and Nirider rightly used Leo as their expert instead of using me. I’m known in Wisconsin, but Richard Leo is known around the country as a leading expert on police interrogations and false confessions.
Today, it’s safe to say that nearly all false confession experts believe Dassey’s statements were unreliable (that is, untrustworthy). Of course, most of these experts are presumably basing their opinion on what they saw in “Making a Murderer.” They probably haven’t watched the interrogation videos or read my 23-page report.
When you first assessed Brendan’s confession what red flags were immediately raised for you?
A: As to red flags. First, if we assume that Brendan is innocent, then we know he’s at risk for giving a false confession because of his youth (16 years old at the time), his limited intelligence (as established by school records), his poor memory (also established by school records), and his passive, compliant demeanor (as noted by family members and teachers, and as seen in the interrogation videos).
Second, we know from studies that certain interrogation techniques can induce an innocent suspect to make self-incriminating statements that are not true. Persistent accusatory questions. A lengthy interrogation. Ignoring the suspect’s claims of innocence. Minimizing the suspect’s culpability and allowing the suspect to infer that he won’t be in trouble, no matter what he says. Officers Wiegert and Fassbender used all these techniques when they interrogated Brendan.
Finally, Brendan’s account (story) of what happened was often inconsistent, ambivalent, and contradicted by physical evidence at the crime scene. We know the killing of Teresa Halbach could not have happened the way Brendan said it did. He seemed to be guessing in response to many questions about what happened. If a suspect is truly guilty, the details of his account should match closely with other evidence of what happened.
As stated in your report for the defence you noted there are three distinct psychological types of false confession. What type of false confession do you believe best correlated with the one extracted from Brendan Dassey?
A: The three types of false confessions are
Brendan’s confession was pressured-compliant. He didn’t volunteer his confession, and he never came to believe he had actually participated in the killing of Teresa Halbach.
If the primary goal of an interrogation is to extract a confession or admission of guilt, would it be a reasonable assumption to conclude that the 4 interrogations of Brendan Dassey over the 48-hour period were not in fact interviews?
A: The police call interrogations “interviews,” but their use of the term is misleading. We can make a distinction between an investigative interview and an interrogation. The goal of an investigative interview is to gather information and determine what actually happened. The interviewer should not ask leading questions and does not pressure the witness.
In contrast, the goal of an interrogation is to extract a confession from a person that the police believe is guilty. The police pressure or psychologically manipulate or cajole the suspect until he gives them what they want—a plausible account that incriminates the suspect and allows police to close the case (by handing it over to the prosecutor who then files charges).
From your determinations do you feel the investigators used behavioural impressions, (ignoring his specific vulnerabilities) and actively interrogated Brendan from a presumption of guilt?
A: Yes, in my opinion Wiegert and Fassbender believed that Brendan was either an accomplice or had knowledge of the crime. They believed this at the outset and then became more certain of their belief when, from their perspective, Brendan didn’t cooperate and appeared to be withholding information.
What are your thoughts on the REID technique and its dual ability to elicit both truthful and false confessions?
A: The Reid Technique is a set of psychologically powerful interrogation tactics. It is remarkably effective at getting guilty suspects to give truthful confessions. The problem is that the technique is so powerful that it sometimes causes an innocent person to confess falsely. For this reason, law enforcement agencies should abandon their use of the Reid Technique.
In 2014, a statistical analysis of 5 field studies and 12 laboratory studies found that the information-gathering and accusatorial approaches are equally effective in that they both increase the likelihood of obtaining a truthful confession from a guilty suspect. Use of the accusatorial approach, however, is potentially dangerous because, unlike the information-gathering approach, it increases the likelihood of obtaining a false confession when the suspect is innocent.
Meissner, C., Redlich, A., Michael, S., Evans, J., Camilletti, C., Bhatt, S., & Brandon, S. (2014). Accusatorial and information-gathering interrogation methods and their effects on true and false confessions: A meta-analytic review. Journal of Experimental Criminology, 10, 459-486.
Reid advises law enforcement to assess and end an interrogation if a subject maintains his or her innocence after three to four hours, is it feasible in your opinion that a juvenile would have the mental acuity and strength to maintain their innocence with the pressure that would be brought to bear on them after that length of time?
A: No, it’s not reasonable to assume that a juvenile has the cognitive and emotional resources to resist that kind of pressure. That’s why juveniles are overrepresented in the group of documented false confessors. They tend to be naïve about how police do their work, and they’re more likely to fall victim to what psychologists call “temporal discounting.”
Temporal discounting is the tendency for decision-making to be influenced more strongly by immediate, proximal factors than by delayed, distal factors. Suspects who are young or tired or naïve or feeling helpless give too much weight to short-term consequences and not enough weight to long-term consequences, in part because they perceive immediate consequences to be highly certain and delayed consequences to be more remote and less likely to materialize. Many interrogation tactics—physical isolation, lengthy questioning, the presentation of false evidence, and hints of lenient treatment if the suspect cooperates—are designed to highlight the short-term, negative consequences of denying guilt and obscure the long-term, negative consequences of admitting guilt.
You were not called to give testimony in the Avery case and Fremgen, trial counsel for Dassey was reluctant to engage in a “battle of experts” there are many that would counter that failing to call upon expert testimony on false confessions and to instruct to the fictitious nature of Dassey’s confession, that a jury sat uneducated and ready to convict. How did you feel about how that played out?
A: Mark Fremgen asked if I was willing to testify at Brendan’s trial. I said I would, but I also said that Richard Leo or Saul Kassin would be a better choice. In 2007, I had testified only three times and knew that either Leo or Kassin would do a better job than I would. Nevertheless, I told Fremgen that Brendan “deserved to have an expert,” and I had already written a lengthy report that analysed the police interrogation of Brendan.
I did not hear again from Fremgen. When I learned that a false confession expert had not testified at Brendan’s trial, I felt sick and worried. I wish I had been more proactive about testifying at Brendan’s trial.
In the role of the ultimate judicial decision maker, the juror can be blinded by false evidence ploys, unconscious bias and preconceived perceptions, in your learned opinion what needs to be done to better educate potential triers of facts when it comes to adjudicating a case with a disputed confession?
I think there are two viable options. One is to allow an expert to talk to the jury about the problem of police-induced false confessions. Another option is to have judges read a set of instructions to the jury that basically serves the same function as having an expert testify.
What can be done to help better inform Judges? As we saw with the split in the 7th Circuit Court of Appeals, at the first round of orals it went 2-1 to Brendan with Judges Rovner and Williams armed with an informed understanding, yet we had other judges almost in disbelief and misinterpreting what is a very fact bound case. Do you have any thoughts around that?
A: Legal insiders knew that the 7th Circuit was unlikely to overturn the State of Wisconsin’s conviction of Dassey. For Dassey to win, the 7th Circuit had to conclude that Wisconsin’s courts were “not merely wrong but so wrong that no reasonable judge could have reached that decision.” That’s a very difficult standard to meet.
The standard comes from the Antiterrorism and Effective Death Penalty Act (AEDPA), which requires federal courts to defer to the analysis of state courts unless the state court has essentially made a bizarre, indefensible ruling.
A confession without corroboration is deemed worthless, I appreciate you have never spoken to the truthfulness of Brendan’s confession, but there was no DNA, nothing of evidentiary value to link Brendan to any crime, yet a jury within a 4 hour time frame convicts him to life imprisonment. Did you document fact feeding or promises of leniency in your assessment?
A: Yes, I did. In my report, I noted that Fassbender and Wiegert asked dozens of leading questions. They portrayed themselves as Brendan’s emotional allies and repeatedly hinted to Brendan that he was not responsible for any criminal acts that might have occurred. They praised Brendan when he gave them something they wanted. They led Brendan to believe that he would go home, no matter what he said. They led Brendan to believe he wouldn’t be in trouble “because he [Avery] was telling you to do it.” They kept repeating questions until Brendan gave them an answer they liked. And they revealed to Brendan the most crucial piece of evidence, that Teresa Halbach had been shot in the head.
Watching the behaviour of Special Agent Fassbender and Investigator Wiegert, and comments such as … if you play it right, who knows, maybe we’ll get you back as soon as we can” do you believe they abused Brendan’s vulnerabilities?
A: I believe Fassbender and Wiegert took advantage of and psychologically manipulated a 16-year-old kid who lacked social skills, language skills, and intellectual resources. If they didn’t know about Brendan’s vulnerabilities in advance, they should have. That’s what it means to be a professional. They should have read the research about the problem of police-induced false confessions.
As an analogy, medical doctors are professionals. They read the research about possible side effects of the treatments they prescribe. And they provide treatment only after they’ve done a thorough assessment of the patient and his or her medical status.
Frazier v Cupp allows investigators to lie to suspects, but in your opinion do you believe they would have known they had an intellectually limited child in front of them? How should they have interrogated Brendan to minimise the likelihood of a false confession?
A: They should have conducted an investigative interview, not an accusatory investigation. They also should have allowed Brendan to have “an appropriate adult” in the room. That’s what they do in the United Kingdom when the suspect is a juvenile, is intellectually limited, or is mentally disordered. The appropriate adult can be a social worker, a family member, or an attorney.
The officers asked Dassey a litany of leading questions, which as you documented can produce unreliable statements. Can you explain the danger of leading questions when faced with a young man like Dassey with his suggestibility and deference to authority?
A: By definition, leading questions suggest a particular answer. Individuals who are highly suggestible are more likely to comply with the implicit request contained in a leading question.
Looking back on 2007 and the interactions with Brendan’s trial counsel at the time, do you believe your testimony could have at least presented an element of reasonable doubt to a jury who perhaps had no notion of a false confession?
Yes, I do. I should have been more eager to testify at Brendan’s trial.
If I had known then that there was no evidence of any sort to link Brendan to the killing of Teresa Halbach, I would have pushed hard to testify at his trial. Unfortunately, I didn’t learn the whole story until I watched “Making a Murderer” along with everyone else.
The support for Brendan within academia, the legal and psychology fields continues to gather momentum, thousands advocate for him on a global scale, could you have imagined 13 years ago how big Brendan’s fight for justice would become?
A: No, I could not have imagined back in 2007 how things would play out. The movement to free Brendan would never have happened without the 2015 Netflix documentary.
If you could give one piece of advice to a potential juror readying themselves for a case with a disputed confession what would it be? If you could give advice to a defence counsel about to embark on litigating on behalf of a client who has given a false confession what would it be?
A: To the juror: False confessions happen more often than most people realize, and police interrogation techniques are so powerful that they can sometimes cause an innocent person to confess to a crime they didn’t commit.
A: To the defense lawyer: Hire a confession expert. Or consult with other lawyers who have litigated disputed confession cases.
Thank you Dr. White for your time and invaluable insight.
Free Brendan Dassey.