(In my last post, I explained that a 4-3 Seventh Circuit Court of Appeals decision released Dec. 8 held that Brendan Dassey’s 2006 murder confession was admissible and upheld his conviction, reversing a federal district court ruling that had granted Dassey habeas corpus relief.)
For a very long time, I was one of those who believed there was no way a rational person would confess to a crime they didn’t commit unless they were being physically tortured or threatened. Absent physical coercion, I thought, no one is getting me to admit doing anything I didn’t do, least of all murder. No way, no how.
Therefore, I reasoned, criminal confessions that were not the result of physical intimidation could not possibly be false. Then I studied the law and the legal system.
Now I know better.
In law school, I learned about the psychological factors that contribute to false confessions. I learned about the unscrupulous tactics of interrogators. I watched police videotapes of custodial interrogations where a cocky, streetwise suspect was reduced over the course of many, many hours to a blubbering mess rolling around on the floor of a holding cell.
By now, most everyone knows what things detectives are not allowed to do to criminal suspects. Obviously, they can't torture or physically hurt them during questioning, including depriving them of food or bathroom breaks. They can't make physical threats against them or their family members. Because of high-profile police misconduct cases such as that of the notorious Chicago commander John Burge, virtually all interrogations are now recorded.
But many people would be surprised to learn the tricky things police are constitutionally allowed to do in order to elicit a confession. For one thing, they are allowed to deceive suspects about any number of things. They can lie about knowing more about the crime than they in fact know: “You may as well come clean about everything, because we already know the whole story.” This includes lying about incriminating statements made by other suspects in the crime: “Mike already confessed to everything, and told us you were involved.”
They can also lie about possessing physical evidence they don’t actually possess.
These could be total fabrications, but they’re legal in the name of eliciting information from a suspect. The rationale of courts in allowing it was that a truly innocent person would not be swayed by untrue statements into confessing to something they didn’t do.
Among the few things investigators may not do is make false promises of leniency if a suspect cooperates. They can’t say: “Cooperate with us and we will release you/charge you with a lesser offense/not seek the death penalty against you,” and then renege on those promises after the suspect does talk.
However, research conducted over several decades on the subject of false confessions has shown that these duplicitous but legal methods of interrogation can and often do lead to bogus confessions and wrongful convictions. Especially among suspects who are young, unsophisticated about the criminal justice system, and/or of limited intelligence.
These interrogations often take place over the course of many hours and even days, where a suspect is given food and bathroom breaks but is otherwise not allowed to leave the holding cell or interrogation room, even sleeping on a concrete floor, while left alone for very long periods of time as detectives enter, leave (“until you’re ready to start being honest with us”), and then re-enter over and over again. This is a deliberate method of breaking suspects down.
After a certain point, I would confess to killing JonBenet if they would just let me out of that damn room and leave me alone.
Brendan Dassey’s interrogators reportedly used elements of the long-established Reid Technique on him. This is not the “good cop, bad cop” routine that most viewers of TV crime dramas are familiar with. The Reid Technique involves seemingly benign questioners building false empathy to appear to be on the suspect’s side in order to put him at ease and win his trust. They might sit close to the suspect, look him sympathetically in the eye and speak sincerely, urging him that it’s in his own best interests to cooperate.
As can be seen in his interview tape, Brendan’s questioners adopted the demeanor of concerned high school guidance counselors with the 16-year-old, indicating they were interviewing him merely to get information about Steven Avery’s actions, not information they would use against him.
They repeatedly tell him: Remember we’re in your corner, we’re on your side, everything’s going to be okay if you’re just honest with us. Honesty is the only thing that will set you free.
In retrospect, they must have meant free in the metaphorical sense, because they certainly didn’t mean free in the physical sense. Brendan Dassey has not walked free since.
Recall from Part 1 that Brendan was persuaded to sign a waiver of his Miranda rights. If police are informing you of these rights and giving you the option to invoke them (which is required in any custodial interrogation), chances are they are not on your side and everything is not going to be okay.
Brendan’s interrogators also repeatedly tell him they already know everything about the Hallbach murder, including Avery’s involvement, so there’s no reason for him to hold back information. In fact, they did not know. They lied to him.
These deceitful police tactics and others that I describe above are generally constitutionally permissible in the questioning of adult suspects of normal intelligence. When it comes to suspects who are minors, and/or intellectually challenged in some way, courts usually take a dim view of these methods.
When deciding whether to allow a confession to be admitted at trial, the court is supposed to take into account the susceptibility of the defendant to manipulation by police. This means that age and lack of sophistication are supposed to be strong considerations mitigating against the voluntariness of a taped or signed confession.
As explained earlier, Brendan Dassey was a 16-year-old with learning disabilities and no past experience with the criminal justice system. He was being questioned by several adult men over a number of hours in a small room, without his mother, an attorney, or any other supportive adult present who could tell him he didn’t have to answer a particular question.
If you look at his body language on the tape, he is sitting in a slouched position with downcast eyes the entire time, responding reluctantly, clearly cowed by the interviewers and the situation.
As Chief Judge Diane Wood said in her blistering dissent, “Dassey’s age and mental limitations made him particularly susceptible to this psychologically manipulative interrogation.”
The investigators were thus able to steer Brendan’s statements in the direction they wanted them to go.
The bottom line is that the Wisconsin courts did not take the special care they were required to under the law in evaluating whether Brendan’s confession was voluntary in light of his vulnerable qualities.
Everything about the nature of his police interview, the resulting signed confession, and the courts' willingness to admit that confession into evidence against him stinks to high heaven.
To Be Continued