In earlier posts, I argued for why both Brendan Dassey and the Reid interrogation technique belong in the criminal procedure classroom. Most recently, I offered a handful of conclusions about how understanding the Reid method can better inform Miranda-related arguments. In this fourth post, I will explore the relationship between Reid and one of the interrogations left unexplored by the Making a Murderer Netflix documentary series.
As I noted in my last post, Making a Murderer focuses in episode 3 on Dassey’s March 1, 2006, interrogation, which is at the heart of Dassey’s petition for Supreme Court review. The documentary, however, does not explore—or even mention—several other Reid interrogations of Dassey. Dassey’s interactions with law enforcement during those interrogations were critical contributors to his March 1 “confession.” The most notable of these are an interrogation that occurred on Nov. 6, 2005, and three interrogations that happened on Feb. 27, 2006. Today I’ll explore what took place on Nov. 6.
Setting the stage
Brendan Ray Dassey was born in Manitowoc County, Wisconsin, on Oct. 19, 1989, to Barbara and Peter Dassey. A brother to Bryan, Bobby, Blaine, and half-brother Brad, Dassey lived with his family in a trailer located on Avery Salvage, a 40-acre property that housed numerous buildings and roughly 4,000 junked automobiles.
In the fall of 2005, Dassey was a 16-year-old student enrolled as a sophomore at Mishicot High School. He struggled in school. At the time photographer Teresa Halbach was reported missing on Oct. 31, 2005, Dassey was enrolled in special education classes and was failing three of his courses. Dassey’s limited academic capabilities have a history. He began receiving special education services in 1996 after intelligence testing revealed well-below average scores for his full-scale IQ, verbal IQ, and performance IQ.
November 6, 2005
[Note: you can follow along with this part of the post by listening to the interrogation here.]
It is against that backdrop that Dassey was first questioned by law enforcement on Nov. 6, 2005. By then, the Manitowoc County Sheriff’s Department’s investigation into Teresa Halbach’s disappearance had already focused on Avery Salvage and, in particular, Dassey’s uncle, Steven Avery. Halbach visited Avery at the Avery Salvage property on Oct. 31 at approximately 2:30 p.m. to take pictures of a van Avery sought to sell in Auto Trader magazine. That visit, alongside Avery’s three calls to Halbach on the day she disappeared, caused law enforcement to obtain a Nov. 5 warrant to search Avery’s trailer and Avery Salvage.
On Nov. 6, Avery Salvage was already in the hands of law enforcement as they began a second day of searching the large property. At approximately 11:55 a.m., Marinette County detectives spotted two young men driving Avery’s car—the subject of a separate search warrant—and stopped them. After identifying the car’s occupants as Avery’s nephews, Bryan Dassey and Brendan Dassey, who were on their way to purchase Mountain Dew, detectives O’Neill and Baldwin stopped the car and separated Brendan from Bryan.
While inside the car, and separated now from his brother, O’Neill did not advise Brendan Dassey of his Miranda rights and instead informed Dassey that he was not under arrest. Although detectives had seized the vehicle Dassey was driving and towed it away, O’Neill also told Dassey that he was free to leave at any time. During the roadside questioning, Dassey relayed foundational details that would cement law enforcement’s belief in his involvement in Halbach’s murder.
As far as Reid, though, the Nov. 6 interrogation offers a perfect example of how knowledge of the technique allows for identifying the precise moment when the detectives shift from a Reid interview (which is assessment-focused) into use of the nine-step technique to interrogate Dassey (which presumes guilt). But it also offers a good example of another concern: jumping into an interrogation without completing the interview. Done properly, an investigator performs a Reid interview and, following the interview, performs an independent investigation to either corroborate or discredit a suspect’s story. Only after doing so should an interrogation commence. But in Dassey’s case—very early on—we see an investigator perform an interview and interrogation all one session while cherry-picking steps from the nine-step interrogation technique. Let’s get specific.
O’Neill and Baldwin took turns questioning Dassey in the squad car for approximately 45 minutes. For the first roughly 20 minutes of the interaction, the detectives were formal with Dassey but non-confrontational. During that portion, Dassey’s story is simple. He says that he never saw Halbach on the afternoon of Oct. 31—the day she came to visit Avery—when the school bus dropped him off at home. But at roughly the 20-minute mark of the questioning (20:35 to be exact for those who are listening to the interview), the tenor changes dramatically and O’Neill shifts into an interrogation. Following a long pause, which in my opinion signals the shift, the detectives have this critical exchange with Dassey:
BALDWIN: Yeah. You remember that girl taking that picture. You’re getting’ off the bus, it’s a beautiful day, it’s daylight and everybody sees her, you do too. Do you remember seeing that girl standing there taking a picture?
DASSEY: Maybe, I don’t know. I don’t remember.
BALDWIN: Brendan, come on.
O’NEILL: You do know, don’t you[?] Brendan, you’re not going to disappoint any of us. Think about that girl, was that girl standing there taking a picture that day?
O’NEILL: Ah, it’s either a yes or no, I mean I’m not puttin’ nothin’ in your mind. You tell me if you remember that girl standing there taking pictures.
DASSEY: [No reply.]
O’NEILL: Was she? Huh? Why won’t you tell me?
DASSEY: I was just trying to think of if I seen her.
O’NEILL: Well did you see her standing there taking a picture?
O’NEILL: Why didn’t you tell me that? You scared?
DASSEY: [No reply.]
The remaining 20 minutes of the interrogation persist in similar confrontational fashion. Both O’Neill and Baldwin push Dassey to say, apart from admitting that he saw Halbach, that he saw Halbach’s car and, moreover, that he knew a bonfire in Avery’s yard was planned for the week of Oct. 31. Dassey also admitted speaking with Avery on the 31st and seeing him in his garage that evening. The detectives entice those details from Dassey by quite remarkably reassuring him—at the 49:30 mark—that he’s not going to jail: “Okay, let’s get beyond being scared, let’s get beyond the idea of you getting’ in trouble and goin’ to jail cuz that’s not gonna happen, okay?”
The legal impact of that Nov. 6 roadside questioning is relatively clear: Dassey was in custody for Miranda purposes beginning at the 20-minute mark of the interview. Despite O’Neill telling Dassey at the outset that he was not under arrest and was free to leave at any time, those pro forma disclaimers are worthless at the moment when confrontational questioning began. Or, in other words, when Reid interrogation began. Detectives used a handful of Reid steps to push Dassey into changing his story, most notably directly confronting Dassey (step 1), developing a theme by encouraging Dassey to “think about the girl” (step 2), minimizing his involvement by telling him he will not go to jail (step 2), and overcoming Dassey’s denials (step 3)—among other Reid tactics.
Reid aside, the car Dassey was driving had been seized and towed away. Dassey was therefore dependent on law enforcement for transportation. When considered alongside Dassey’s educational background and the fact that Dassey was questioned in relay fashion by two officers in the backseat of a squad car with closed doors, it is clear that no reasonable person in Dassey’s shoes would feel free to terminate the encounter and leave.
Equally clear, the detectives’ direct and accusatory questioning constituted Miranda interrogation. Dassey, then, should have received Miranda warnings at roughly the 20-minute mark of the “interview.” Absent those warnings, the Reid-savvy defense attorney should win a suppression motion to suppress the statements Dassey made in the squad car (assuming the state wanted to introduce those against Dassey). But ignorance of Reid might cause a defense attorney to reach a different result. After all, under many prevailing attorney perspectives, Miranda never attached because of Detective O’Neill’s boilerplate qualifiers that Dassey was not under arrest and was “free to leave.”
Admittedly, the state never sought to use Dassey’s Nov. 6 statements against him at trial because, by then, it had Dassey’s detail-laden March 1, 2006, confession to work with. The Nov. 6 interrogation in Dassey’s case, then, stands as a cautionary tale for use in the classroom. Prospective prosecutors and defense attorneys alike can clearly see how knowledge of the Reid technique informs Miranda’s attachment.
More on the other interrogations of Dassey left unexplored by Making a Murderer in my next post.