“…we look at that and we say, well you know, Brendan gave us, honestly gave us this information, this information and that information, maybe I’ll call them dots or whatever and some of the dots when we look at it say well, I think we need some matching up here, just a little tightening up or something.” - an incomprehensible riddle uttered by Tom Fassbender during the March 1st interrogation of Brendan Dassey.
Unfortunately for the 16-year-old developmentally delayed Dassey (language and communication skills within the lowest percentile of all 16-year-olds); this was a nonsensical labyrinth of language, one that was brandished and repeated throughout four interrogations in a 48-hour period.
Brendan’s deficits were stymied by judicial ignorance, and in the absence of ADA’s (Americans with Disabilities Act14) reasonable modification of interrogation practices, REID prevailed in the most horrific of ways.
When language is weaponised, false confessions ensue. When a child is exposed to the malignant workings of the REID technique compounding their inability to linguistically cope with the situation unfolding around them – a false confession is inevitable.
In October 2019 Brendan’s legal advocates filed a petition for executive clemency with Wisconsin Governor, Tony Evers. Requesting the Governors consideration of either a pardon or commutation on the grounds of both Brendan’s innocence and the extreme length of his sentence. Among those advocates was Professor Michele LaVigne a distinguished Clinical Professor of Law and Dr. Sally Miles, a Speech Language Pathologist. Their immense contribution; Under the Hood: Brendan Dassey, Language Impairments and Judicial Ignorance would finally offer transparency to the stratums of Brendan Dassey’s disability.
In an effort to unpack the colossus that is Under the Hood, I was fortunate to speak with Professor LaVigne regarding the analysis, explore the relationship between oral language competency and Brendan Dassey’s experience in the interrogation room – with a few choice thoughts on Kachinsky.
Under the Hood: Brendan Dassey, Language Impairments and Judicial Ignorance.
TK: Professor LaVigne thank you for your time. The Under the Hood analysis offered much insight and a significant aha moment for millions of people. You gave voice to the heart of Brendan’s disabilities.
PL: Absolutely it’s my pleasure, we write these things, so people actually read them.
TK: When Under the Hood: Brendan Dassey, Language Impairments and Judicial Ignorance was released it was met with an ardent response. Did you feel that yourself?
PL: I did. We weren’t sure originally. We had done the work and didn’t know where it was going to go. One day a couple of summers ago I got an email from Albany law review, saying well, we do miscarriages of justice do you have anything that would work? I said why funny, yes, we do.
TK: What was the catalyst for focusing on Brendan’s story?
PL: I had done work on language impairments. The name is starting to change, you’re starting to see the use of developmental language disorders more, but you’re still going to hear the term language impairments. I’d written a couple of articles about it and fortuitously ended up meeting Sally. I actually knew her before, we met because my little dog attacked her big dog and she lives literally around the corner. We were at a party and started talking, I had mentioned I was heading over to Edinburgh and Belfast to talk about language impairments in the criminal justice system and she looked at me and said “well I am a Speech Language Pathologist” I certainly did not know that and over time we started talking about it. Being in Wisconsin I knew about the Avery/Dassey case and I knew that the general sense was that what had been done to Brendan Dassey was a crime.
This is a relatively small state and the legal community is very tuned into who's who and what’s what and we knew there was a lot of problems with this. Then when Making a Murderer came along, I had to force myself to watch it. I mean it’s like watching a horror show to me. I got probably halfway through and I’m watching this and I’m thinking hah no one has ever said this kid has language problems, so I talked to Sally. Now believe me as reluctant as I may have been to watch Making a Murderer, she would never in a million years have watched it, it’s just not something she would ever do.
She watched it, I believe she watched the two episodes where Brendan is being interrogated and the one where his lawyer shows up - she was so horrified at what she was watching. She first watched the entire thing and then went back and found all the interrogations online and literally couldn’t stop talking about it.
When I said to her, that’s the REID technique, she said, this cannot be a technique. I said, no it’s considered a technique; she said, this couldn’t possibly be a technique. She said we could have a discourse analysis, and I had some research money, so we actually got that done before we even thought about what we were going to do with it. A student assisted by locating Brendan’s language profile and that’s how it happened.
TK: Were you living in Wisconsin at the time of the trials? Had you been aware of Brendan’s case back in 2006?
PL: Yes, I was more aware originally of Avery. It’s hard to overstate how much coverage that got but then through various sources I started hearing about what was happening to Brendan. Steven Avery had fabulous lawyers, the best around, that was not so for Brendan Dassey. It didn’t take long for everyone in the state to start to realise it. I don’t think we knew quite how bad it was but, sure we knew.
TK: When reading Under the Hood I noted that in 2018 you gave a presentation to the National Association of Criminal Defence Lawyers was that regarding the analysis?
PL: Right. This was the first time we took it public, to say 'look what we had,' that’s when we found when you start to see those numbers it is really breathtaking in so many ways. And then when you start to go at a granular level at the way these cops were talking, it again is breathtaking. That’s what Sally couldn’t get over because our original conversation was do you think this kid had a language impairment and she said yes based on his body language and this and this etc. He does have syntax, he uses subject verb, object, she had a number of things that let her see that he probably did - but she said I would like to talk on the police and the way they talk.
TK: I found it really interesting that you took that angle.
PL: Yes. I’ve been a defence attorney since 1978 so after a while we fill in the blanks. We know what the cops are saying, we know what they mean etc. When somebody says to you take a look at this through fresh eyes its really breathtaking. I use the word a lot and I swore a lot too, because you start to see and go “my lord.” The investigators orated like Trump. You didn’t quite know what they were talking about half the time.
TK: When you presented the analysis was the room with you? Receptive? Had they been aware of Brendan’s case?
PL: Certainly, the crowd of criminal defence lawyers was aware of Making a Murderer whether they were aware of the case when it happened or not. Making a Murderer was a very big deal in the defence community. Whenever I present, I have to lay the groundwork as many lawyers and professionals in Wisconsin are not aware of language development issues in this context.
TK: Why Brendan, Professor LaVigne?
PL: Well in so many ways he’s easy, I don’t like to use the term, but it fits for a couple of reasons. One, people know about it, even if they didn’t see the show, they know about it. So, it now gives us context. Two it didn’t take us that much work to find his language profile, it was sitting right in the court file. Which kind of surprised us, it was one of my students who asked whether I had seen it. I looked at it and she and I just stared at each other. So, it’s nice and concrete and one of the reasons we talk about Brendan is one, because of Brendan himself, and the grotesque miscarriage of justice and two, he really is a proxy for we don’t know how many people in the criminal justice system. We make the point in the article, he’s not unusual, he’s not unique, there’s a whole lot of guys, it’s just his case is famous.
TK: On watching the interrogation tapes, we innately know that what we are viewing is skewed. It elicits an intuitive reaction. The deep dive Under the Hood, clearly illustrates what that actually was.
PL: Part of it and what I really like - and this was solely the result of Sally saying, we’ve got to do a deep dive on what these cops did too. The way that the court looked at it was pretty standard - well they were polite, they didn’t yell, they gave him a bag of chips and acted like his Dad and they did this and this etc.
Well the notion of language as a weapon is something that evolved when we received the analysis. Sally’s sense was immediately that language was used as a weapon. And they used it in such a screwed-up way; she really opened my eyes to how police communicate and how that is seen by somebody who really is in the margins.
Frankly a lot of what they said when you look at, I’d be hard pressed to understand what they were talking about. In the article we use the example of when Fassbender, tries to introduce the metaphor of connecting the dots. But he does it in a way that makes no sense whatsoever, then you realise what would anybody be thinking when they hear this - but what would somebody like Brendan think when they hear this. It gives insight. They were particularly bad but I think police pay no particular attention to how they talk, utterly undisciplined, they learned a couple of things about the REID technique, superior knowledge and do most of the talking - but how is it, that you’re talking? Who could possibly diagram those sentences - nobody!
TK: Can you elaborate on how a Clinical Professor of Law and Speech Language Pathologist came together in collaboration?
PL: It was understood what our various roles involved. I’m a lawyer, she’s a doctorate level speech pathologist, she knew about SALT, the systematic analysis language transcription that was developed here in Madison, so Sally started working with that. I focused on the legal documents and court transcripts, so I had more of the lawyer’s eye. I was very familiar with the type of questions we had to answer because it had been intended for a legal type audience. For example, we would discuss interviewing and confirm that we need to talk about what constitutes a good interview, where that comes from and why that is. I have come to realise how little we know as a profession about this tool we use – language. We had a lot of foundation to lay.
We spent a lot of time going back and forth. If I stand at one of my windows, I can see her house! We’d walk back and forth; she’d email saying “I need a description of this” and then I’d put it into the mould. It really was the perfect collaboration.
TK: Absolutely! How long did it take you?
PL: We started sometime in the summer to late fall of 2016. We started with SALT. It wasn’t in any shape. It would be the summer of 2018 when we would contact Albany Law Review, so it grew over the course of a couple of years. They basically gave us a deadline of New Year’s Day 2019. We ran it back and forth down the street and via email throughout the fall. When I think about it, I’m really impressed we got it written as quickly as we did. It was the presentation to the National Association of Criminal Defence Lawyers where it was actually going to come out, so I had someone with who I work with at the law school develop the grasp and I talked to Sally about what would be meaningful and what wouldn’t. That was done by the summer of 2018.
TK: It certainly seems like an odyssey due to the amount of work that was involved. I particularly found the statement “we are well aware that despite the innocuous name, language impairments can be serious disabilities with potentially catastrophic effects,” very powerful. For this is exactly what we see with Brendan. You couldn’t have a more catastrophic outcome for a child.
Brendan Dassey files for clemency.
TK: How did Under the Hood become involved in the clemency petition?
PL: Well we sent a copy to Steve and Laura as we were talking about their client. They knew all along that we were doing this. They felt that we were the ones who had laid out exactly what his disability was. The record until that time hadn’t and that there it was, and they could point to something and say look at this and this, so they came up and talked to us. Sally actually talked at the press conference they were also intrigued by the way she analysed what the police did. There had been a lot of discussion about contamination and some of the other things and a really down down into the weed’s discussion - here’s how many words they used, this is how their discourse was, this is how disfluent they were.
TK: I guess up until that point it was perfunctory testing that had been documented for Brendan.
PL: They were screwing around with his IQ. Well IQ doesn’t tell you much of anything. When they say well his IQ is 82, well 100 isn’t really very good. So, acting like 100 is a neuroscientist is ridiculous.
TK: I found that the 7th COA and trials downplayed Brendan’s disabilities to prop up their case.
PL: Working an average of 100 on math, on math measures IQ - what are you talking about? It actually points out another problem, we don’t actually know what IQ is, why it is, what it measures. So, talking about an IQ of 100 therefore he understood, 100 your honour, you would not be sitting there, if your IQ was 100. You would but you shouldn’t be. The truth is we know very little about a lot. To be honest.
TK: The state definitely played around with the numbers.
PL: They played and played. However, they failed to mention the 6-7 questions being thrown at him every minute. And none of them involved math!
TK: Under the Hood is a multilayered analysis. I have it read numerous times and I am still digesting the outcomes.
PL: Thank you, I think one of the big problems with the criminal justice system is that we think we can understand and that we are really smart, and I think that shows we really aren’t. It is fascinating in a depressing kind of way; what we do is we deal with the human race. We attempt to deal with the behaviour of the human race, and we don’t actually know what makes them go.
TK: Touching on clemency in Wisconsin, to date Governor Evers has granted 29 pardons. Despite the denial, I do think that Governor Evers is still someone who can be worked with. That he can create any criteria he deems appropriate.
PL: Right these are rules and they are not set by anybody. He can pardon anybody; he can commute anybody’s sentence. At this point I certainly say don’t give up, proceed cautiously as pardons and commutations are a new thing in this state after a very long eight years of Scott Walker. So, we move it along, I know a few people on the clemency board and again it’s new, it’s new so they are going to proceed cautiously for a while.
In all of this I believe is a sea change in what we had. Our legislature is still very conservative, they would have no say over a pardon or any kind of commutation, but the blow back would be stunning. If this were another county or another place, you might consider something like conviction integrity reviews, but you will never find it up there you won’t find it out of these prosecutors. If it were Milwaukee county, I’d say our prosecutors would be interested in taking a look at this to see where this had broken down.
TK: It’s shocking to see the lack of commitment in investigating a potential miscarriage of justice. The stonewalling is astounding. Experts such as yourself and Dr. Miles, Saul Kassin, over 250 experts signed the open letter to the Governor, you have the parties to the Amici throughout the appeals process and that doesn’t warrant a review? That doesn’t warrant someone looking into Brendan’s case and conviction?
PL: Right. Here’s where you can see the bad aspects of prosecution as its practiced. It is win at all cost most of the time and that is the model. And once you get the conviction you fight like dogs to keep it.
TK: There is no sense of humanity in that process at all.
PL: We have a long way to go, my students would ask, 'does the system seem any better after 41 years' and I have to say no, in many ways it is meaner than it was. When I started practicing law in 1978 there was 4,000 people in the Wisconsin prison system, there are now 24,000. The state hasn’t grown by six. It’s all part of that. Yes, we’ve also got have some characters, we’ve got Ken Kratz - I don’t know where they found him but there he is, he’s actually a defence lawyer now way up North on the shores of Lake Superior. Can you imagine sitting in jail and in comes Ken Kratz to say 'hi I’m your lawyer?'
TK: He has spent the past four years tweeting on the case, even tweeting directly at Governor Evers when the clemency petition was filed, despite having only just tweeted he thought Brendan’s sentence was too long. Why still involve yourself?
PL: Sure, because this is his moment in the sun, his 15 minutes of fame. The scarier thing to me is Kachinsky is still vocal.
TK: We have followed the trajectory of his legal issues. He leaves me speechless. He was interviewed 10-12 times before he even met Brendan.
PL: Yes, he was talking about pleading guilty before he ever laid eyes on that child.
TK: …or the interrogation tapes.
Oral language competency.
You detail that Wiegert and Fassbender and their communication with Brendan fell far below professional norms. A major takeaway from the analysis is the statistics. The investigators use a total of 18,325 words, Brendan used 6,998, making Brendan’s contribution a mere 28%. This speaks clearly to this being the investigators narrative not Brendan’s, it was not Brendan telling that story. These stats had a profound impact on people. Law enforcement asked 1,525 questions asking 6.68 questions per minute which equalled one question every nine to ten seconds. I will use your word that is, breathtaking.
PL: Yes, it is especially as a lot of them were back to back, he never had a chance to answer by the time he gets around to answering, it’s unclear as to which question, he is answering.
TK: There’s one particular passage that’s been documented many times, when they get him to talk about “who shot her in the head?” What really strikes me about that passage is they get Brendan to say he slit her throat and do not miss a beat when he responds. There is no variation in the tone of their voices. You would imagine anyone having been told that information would have some type of reaction – however, because it wasn’t the information they were seeking from Brendan, they just kept going. They didn’t stop nor explore that statement, they wanted to get to the head. Yet they allowed him to inculpate himself in the most horrific of ways.
PL: That’s true. Yes, that’s fine, that’s good, let’s move along to the gun now!
It does have a keystone cops’ quality to it. What are you people even doing? If this is REID technique, it wasn’t even good REID technique, I don’t know what it was.
TK: With all the research that you did what finding had the biggest impact on you? What stayed with you?
PL: Some of the numbers. Certainly the number of questions and for me it was being forced to look more closely at what these cops were saying because I realised I was like everyone else, I ran it through the filter that essentially translated what they were saying – to go back to the dots. I’m looking saying I know what they are talking about, and Sally said you can do that but what would it be like to be Brendan? To hear that and to put that filter on and suddenly say oh my word this is gibberish, these people are talking gibberish.
I love it when they say well, he never said he didn’t understand. What could he say he didn’t understand? Is he really going to say actually I have no idea what you’re talking about? I have zero idea of what you are talking about. And I go back to the dots, honestly, I never would have seen it if Sally had not said look at this. And suddenly the light went on and I said oh my word look at the way they’re talking.
To then start to break down six questions in a row, one right after another, you tell me which one he gets to answer. The Miranda warnings, the first standard Miranda warnings, oh my god, I know what Miranda says and I’m not sure I could have understood that. So, it was more that really at that granular level as we start to see the lack of discipline we have in the way we talk. How do we talk to our clients? How are these people interviewing? Certainly, it stuck with me. The other time I cried was with the en banc decision. How wilfully ignorant we are and we’re fine with that, that’s fine.
TK: That his life mean't so little to so many people in that process.
PL: His life is of no consequence to anybody because we have our little rules. And we can sleep at night because we’ve got our rules.
TK: It is heartbreaking.
PL: Yeh it is heartbreaking for him, it is heartbreaking for us, as we are so woefully dreadful.
Ineffective assistance of counsel.
TK: Please share your thoughts on the lack of attention paid to Brendan’s deficits by his pretrial and trial counsel despite clear evidence of his disabilities via the IEPs that formed part of his record.
PL: I don’t know Len Kachinsky, I have no idea what his motivations are, what he did is stunning. And it’s a systemic failure. He was appointed by the public defender’s office. I was a state public defender and I had somebody who was not going to let me run around and do that kind of stuff I can assure you. But when you are in private practice and you get one of these appointments and it’s for not much money, there’s no oversight. At some point the judge knew and obviously really didn’t care. Brendan actually asks for another lawyer early on. The judge was forcing him to articulate why and all that child could say was “he thinks I’m guilty” and the judge says not enough, that’s not enough. Everybody knew, it was only when it reached the frankly insane stage when he set up the meeting with police - I mean there’s no lawyer in the world who would do that, yet there he was.
What’s interesting about Len, he’s got his own legal trouble now (boohoo) but he was quite convinced all along that this kid didn’t understand what was being said. How he came to that? He had the records; I know he did because when I was reviewing the suppression hearing there was a reference to them, and he said you don’t need to admit those. Trial counsel then had them and dealt with them in a perfunctory way and never explored what they meant; the speech language pathologist was never called to testify even though the school psychologist said you’re going to have to ask questions about his communication. She said you’re going to have to ask the speech language pathologist as that’s her expertise not mine and nobody did anything.
TK: Brendan was failed so horrifically at every stage of the process. He asks how to spell the word ‘rack’, yet Wiegert testified he wasn’t aware of any developmental issues with Brendan. I believe they knew; they just didn’t care. It is horrific to watch.
PL: Really it is frightening. What was interesting about Wiegert when he testified at the trial, one of his trial lawyers said, “shouldn’t you always get information in advance” and he said we don’t always have time it was an emergency. Emergency! It was February, there was no emergency, and to sit there and say well he seems fine to me, he takes drivers ed. Drivers ed! So, everything is fine he knows when to turn the left turn signal on!
TK: Brendan was literally felled by jurists, judges, federal court judges, pretrial counsel and his trial counsel.
PL: Edelstein seemed to have some sense about Brendan’s communication issues, he at least mentions them and he’s the one who put the speech language records into evidence – that’s how we got them. He doesn’t at any time have any explanation of them. He looked at them saw some random numbers and at no time were they explained. I read the whole transcript and I found the trial disturbing at the moment when the speech language pathologist is on the stand, he moves on the speech language records and says no further questions. I started to cry.
I said what are you doing? What was this? What did he do, give up? I don’t know the man I couldn’t say, but their ineffectiveness is quite different to Len Kachinsky’s which is crimes of commission versus crimes of omission. This was a tough one to look at and I think there is plenty of blame to go around.
TK: They didn’t play his recantation for example. So, the jury is not privy to Brendan recanting to his mother.
PL: You know Brendan testified, and of course he could not testify well, it goes without saying! He kept saying “I don’t know.” Well the judge in his post-conviction ruling said, well clearly the jury didn’t believe it. Well if anyone would have known that’s all that child would have been capable of, I don’t think he did know - he couldn’t say. A child like that couldn’t possibly testify in a court of law and if he had to and perhaps he did, he would be looking for a protective order. You don’t put him under a straight up cross examination, that was madness, sheer madness.
TK: When you see Brendan up on the stand there’s a sense of what a brave boy but at the same time, he’s struggling, overwhelmed. From the very beginning there was an absolute lack of protection in Brendan’s best interests by everybody involved.
PL: When you listen to the whole thing, as we got all the CD’s and DVD’s in the records - they are less corrupted when they are not digitised, you are listening to this and thinking well we have all lost our minds and Kachinsky is off doing national guard duty or reserves.
TK: Unfathomable. I had hoped after watching it that I had watched a social experiment, that we were going to find out that this was a work of fiction.
I believe they knew Brendan was susceptible to REID from the interrogation in November in Crivitz with O’Neill.
PL: The thing that’s interesting and we didn’t really talk about it, is we did run the analysis on the first interview in November and Sally noticed that the percentages are the same. You see that this is where it becomes deliberate as to who does the talking. That style - she didn’t break down the fluency, she didn’t really go as far into the weeds as she did in the February and March interrogations, but she said someone clearly has got this in mind that this is how it’s supposed to happen.
For me it’s the injustice done to Brendan and the injustice done to how many other people. Courts still let this garbage in knowing full well that the REID technique extracts confessions both false and real and that when you’re talking with a child it should never be used. When you’re talking about a person with any kind of disability or impairment it should never be used. That it really defies all science and what we know about interviewing, yet here we are still doing it, still at it. In the end I will go right to the courts. Wiegert and Fassbender don’t exist the day the courts say that’s enough. But they won’t. They’re not doing it.
TK: It was tragic when the Supreme Court declined to take Brendan’s case. Gut wrenching for Brendan and his legal team who had litigated for 13 years to be stonewalled at the last hurdle. With such a definitive split at 4-3 it was of interest when Professor Drizin noted that if Judge Posner hadn’t retired, he believed it would have been a 4-4 and the grant of habeas would have stood. Does that decision speak to subjectivity of voluntariness?
PL: I think we still don’t know what it is. As a profession that deals with human beings, we know very little about them actually. When I read the original three judge panel decision, I read Judge Hamilton’s dissent and thought he thinks he did it. So, you look at that and the preposterousness of the en bancs majority’s analysis. It had nothing to do with how human beings operate. They pick and choose and say well look here on page 17 he said that so therefore… I mean it’s really quite stunning how little we as a profession understand how humans operate, how young human beings operate, how little we understand about language and how it works, and what it actually means to have some kind of a deficit. We’ve got an almost fairy tale view of how people operate, and because of that, that led them to march through.
That was one searing dissent. Both of those dissents were two of the most searing things I’ve ever read. They really laid it out, he was on a couch, he was comfortable, alright … we have so far to go.
TK: That speaks to the judicial ignorance in Under the Hood. We only need to look to AEDPA which enables conservative judges to hide behind statutes.
PL: We’ve got a statutory scheme that basically says we don’t care how bad we treated you, we actually don’t care if you did it or not, you had your chance, you’re done. It is a travesty. That statute is a travesty.
TK: It’s made the habeas process almost ineffective.
PL: Oh, completely ineffective, because why bother? I’ll be honest I’ve just retired. I got my law license in 1978 and I started as a public defender, whether practicing or teaching it was always within that realm. And I found over time that I was just getting more and more cynical about the “justice system.” I honestly don’t see it getting any better, we talk about criminal justice reform but on a day to day basis I’m not seeing it.
TK: There is a real lack of humanity in the appeals process when we get to Judge Hamilton.
PL: There was talk when that split came people were saying there’s trouble, this is a bad sign. They took the en banc. They were already saying we don’t think we have the votes, and it was like oh god - and there’s Hamilton leading the charge. I don’t know that kind of thinking. It is very different to the way I think about things.
TK: I thought the en banc was quite fraught. The state representative, Luke Berg at no stage acknowledged who Brendan actually is.
PL: The thing is, who Brendan is, is actually part of the calculus. That’s where it got all screwed up, we’re talking about him sitting on a couch, using a nice tone of voice, they didn’t hector him but yet in the context of whose on the receiving end there was no discussion about that, no caring about that. Yep they can say habeas, but the legal standard was what did the police do in the context of who is this kid.
TK: Yes, who was the child they had facing them. I often reference Jim Trainum and how he inadvertently fed information to a suspect then delved into the psychology of false confessions. Wiegert and Fassbender went onto awards and accolades, Wiegert became Sheriff of Calumet County.
PL: Part of his campaign was that he does training on how to interview and that he’s expert in interviewing. That was part of his campaign for Sheriff of Calumet County - you’ve got to be kidding me right!
TK: I think if Brendan doesn’t have hope it would be a very difficult space for him to be in particularly having endured 10 years of absolute anonymity.
PL: Totally forgotten. Interestingly the people in the prison system seem to really like him the fact that he is down at medium already speaks volumes, he’s down at medium, he’s doing jobs, they think he’s a great guy. It does show what kind of person Brendan is I’m guessing there are people in the prison system who believe what was done to him was wrong.
TK: Brendan is a good person. Very generous in thought and deed. Every year he asks of others and does himself donate to the Prison Fellowship (Angel Tree) charity. An organisation that provides presents to children of incarcerated parents. It’s just wrong.
PL: It is wrong, the fact that it’s wrong and the criminal justice system and justice system in general has no ability or interest in recognising it -we’ve satisfied the statute we’re done. I look at the original Court of Appeals, our states Court of Appeals decision and think you’ve got to be kidding me that this is all we get! And of course, Judge Rick Brown was in on that decision and he is deaf. I thought really. Really! This one flattened me, and it was very hard to look at and it caused me to say I have devoted decades of my life to this and look at this it's a sham.
TK: I can only imagine it’s a very disheartening case and outcome for people who work in the legal system who have championed the American judicial system and legal process.
PL: Like what do I say to my students? Get in there and fight, you’re fighting the good fight, other than its based-on dishonesty - where’s our integrity? Where is it? Who are we? People say this isn’t who we are, well apparently it is who we are. I’m not feeling proud of it.
TK: It’s a horrific travesty. An imperfect case for highlighting the failings of the judicial process. I have lived in Ireland, England and Australia and I know more about the US system of justice than any country I’ve lived in.
PL: Yeh right now it’s not something I’m feeling particularly proud of. Certainly, that en banc decision the behaviour of Judge Fox in Manitowoc. I don’t know what to say about that. You get to the Court of Appeals and your thinking in a case of this magnitude you come up with that garbage decision. The Supreme Court of the state of Wisconsin couldn’t be bothered and then finally the magistrate judge in Milwaukee is saying hold the phone we’ve got some serious problems here but then it goes over to Chicago and in the end form over substance wins and that’s it.
TK: Touching on the plea agreement for a moment. I believe this was introduced when they realised, they didn’t need Brendan, and of course Brendan never took the plea as he was innocent. There was no common sense in Manitowoc in 2006/2007 it had left the building.
PL: It had left the building, there was no common sense in Manitowoc, Calumet or Appleton where Kachinsky could be found, but everybody’s ego gets into it. When Fallon gets up there and says “innocent people don’t confess” why the lawyers weren’t on that table screaming bloody murder I don’t know, but it’s that thing when you start to get carried away and you start to believe your own PR I think.
TK: There’s a belief that Fremgen and Edelstein didn’t know how to litigate a false confession case, but they were defence lawyers they knew how to defend somebody. However, we know their strategy to defend a disabled child in a case that pivoted on a false confession focused on humanising the defendant. The cross examination of Mark Wiegert was to be used as a tool to educate the jury on false confessions, seriously?
PL: No, it wasn’t a good tool, it didn’t go off well. The god’s honest truth is I don’t care how good a cross examiner you are, of which neither of these people were, even if you’re top of the line your putting in an expert, you’re not doing it through cross examination.
TK: Particularly with false confessions as it is so counter-intuitive, that jury, those 12 people would not have understood why Brendan said what he did.
PL: Never in a million years. And when asked all he could say was I don’t know, I don’t know. There they are, they don’t know there’s such a thing as a false confession. And I will give it how many years ago that was, that it wasn’t front and centre the way it is now, there wasn’t the kind of information about the REID technique, they cowered in the face – they were going to call the owner of the REID technique, Buckley.
We are starting to understand arguably the REID technique should not be allowed at all as it has no scientific validity whatsoever, that was Sally’s point – wait, there are actually rules; you’re supposed to have a protocol that your supposed to repeat, a whole series of things that are required when you’re talking about an interview protocol. None of which were present there.
TK: We see how the REID technique intersects with juveniles in the interrogation room. How false confessions are extracted, fact feeding etc. Under the Hood documents the false promises of leniency and the contamination that was rife throughout the interrogations – the REID technique supported all of that, it acted as the platform.
PL: The REID technique was made up by some guy in Illinois. It’s made up. John E Reid. I don’t know where he pulled it from “oh I have an idea, let’s try this, oh look the guy confessed.” And again, I’m going to fault the courts though, unless they start saying we're not putting up with this anymore, it will continue.
TK: The polygraph is another tool used to determine guilt. It’s right up there with the REID technique regarding unscientific measurement.
PL: It is, it really is. It’s the same thing, people didn’t know what it was, what it did or didn’t measure, it wasn’t a valid measure of anything.
TK: If you could be party to or initiate legislation regarding the issue of language impairments and the interrogation of learning-disabled juveniles, what three main areas would you focus on and advocate for?
PL: In terms of juveniles they should never be in an interrogation room without an advocate, never, never, never.
In terms of language impairments something we are seeing in New Zealand; the UK and Northern Ireland is the inclusion of a communication advocate in the interrogation room - who says don’t ask that question that way. Someone who goes in and says to the police stop, you’ve just asked him six questions.
And I think overall, we have got to get rid of the REID technique. And I don’t care you could be interrogating a lawyer; you could be interrogating Clarence Darrow get rid of the REID technique it is inherently coercive to anybody. It follows no best practices whatsoever; in fact, it follows the worse practices.
They would be my three.
TK: You’re fully retired now?
PL: I finished up on the 31st but I’m keeping my hands in I’ll talk about Brendan Dassey and language impairments on the moon if they ask me, forever and forever.
TK: Yet the fight continues. I believe Professors Drizin and Nirider are tenacious and driven in their fight for Brendan.
PL: Oh yes, they’re not going down until this is done, they’re staying on this earth until this suckers finished.
TK: I love that, it’s so inspiring. I like many others have to see Brendan a free man. Compelled to act so to speak.
PL: And I love that Brendan has struck a nerve, I am well aware there are mixed feelings about Steven Avery but there are no mixed feelings about Brendan Dassey, maybe Len Kachinsky! It’s interesting even people who think Brendan may have done it still think he deserves a fair shot, they’re so horrified at what the police did, it was so preposterous that it does touch a nerve. It is quite, quite dreadful.
Another thing that gets to me is what was done to him by his own lawyers, my students have seen it and have heard what I’ve got to say. That’s actually very hard for me to be rational about. What was done to him by his own lawyers that was a crime of commission – it’s not that he didn’t cross examine his own client right, he didn’t take it to the mat. He did things, overt things to damage his own client starting with meeting with the press and saying the kid was going to plead guilty before he even met him, he continues to bad mouth his client. He continues to say he knows this kid is guilty that he knows that the confession was not false and was not coerced. Who talks that way about their client? And he still has a license?
TK: It must be mind boggling for ethical legal professionals?
PL: Yes, he went out of his way to undermine that child, his own client and that’s where I say the moment he went up to the press, the minute he gets the case, the public defender’s office knew. The system knew, why didn’t they say that’s it you’re done? I think we all have a lot to answer for, everyone last one of us involved in the legal system in the state of Wisconsin has something to answer for, for that. Thank goodness he’s got Steve and Laura he can actually see that there are lawyers who know what they are doing and actually care. Because if all he knew was Len Kachinsky, wow!
TK: It was hard to digest that an IAC was not successful against Kachinsky. It must be detrimental to the standards.
PL: He says well the court sided with me I didn’t do anything wrong. He’s out there still telling it this way. That’s where you see the weakness in our legal standards. Sometimes things are just too bad we don’t have a name for it anymore but that didn’t happen. So, there it is, I mean my students would randomly send me things about Len Kachinsky.
I don’t know the man and it will take bigger minds than mine to figure out what made him go, I don’t know. But what he did was truly a crime.
TK: I think that sums it up perfectly.
Professor Michele LaVigne is a Distinguished Clinical Professor of Law and Director of a Public Defender Project. Having recently retired Professor LaVigne is committed to empowering those without access to legal services through a pro bono legal advice service through her local library.
Recently, Prof. LaVigne has been researching and writing in the area of language impairments and their effect on the quality of justice for affected individuals. Prof. LaVigne collaborated with Gregory Van Rybroek, JD, PhD, on scholarship related to the communicative, behavioral, and legal implications of language impairments among populations frequently found in the juvenile and criminal justice systems. Their article "Breakdown in the Language Zone: The Prevalence of Language Impairments among Juvenile and Adult Offenders and Why It Matters"** was published the the Winter 2011 edition of UC Davis Journal of Juvenile Law and Policy. Their second article looked at the effects of a client's language impairments on the attorney-client relationship. The article "'He got in my face so I shot him': How Defendants' Language Impairments Impair Attorney-Client Relationships," appeared Volume 17 of the CUNY Law Review (Winter 2014).*** Prof. LaVigne is currently working with Sally Miles, PhD (Speech-Language Pathology) studying the effects of language impairments within the context of police interrogation.