Last week, Laura Nirider wrote a thoughtful post titled, “False Confessions, Legal Education, and the Brendan Dassey Case.” Along with her colleagues at the Center on Wrongful Convictions of Youth, Laura represents Brendan Dassey—one of two defendants prominently featured in the 2015 Netflix series Making a Murderer. In the post, Laura acknowledged the problem of false confessions—a problem she describes as happening “with disturbing regularity.” She thereafter wrote what, in my opinion, are two critical sentences:
"It’s time for law schools to do something about it.
In fact, I’d like to suggest that law schools – national stewards of the noble profession of lawyering, responsible for producing the next generation of lawyer-citizens who will shape and change the law to come – are well situated to do something about problematic gaps in the law just like this one."
I agree with her. Strongly. As Laura notes, Dassey’s case before the Supreme Court focuses on the voluntariness doctrine. But the narrow focus of Dassey’s court case hardly tells the full story that we, as law professors, might tell to our students about how Dassey was investigated, represented and ultimately convicted.
The question shifts, then, to how the legal academy might better engage students in the critical topics raised by Dassey’s case—including the role of false confession literature and jurisprudence. To me, it starts with making it real for students. Too often the books we teach from and the lectures we give deal in hypotheticals. What happened to Dassey, though, is not a hypothetical. And sadly, as Laura notes, his case is far from an anomaly. The upshot, though, is that students know who Dassey is and they are eager to learn how he was convicted. In short, his case is the consummate teaching opportunity.
Here at The University of Arkansas, I have twice taught a course called (Un)Making a Murderer and assembled course materials to accompany the class. I am also in the process of writing a criminal procedure casebook that relies, in part, on filings from Dassey’s case. Doing so has intimately acquainted me with Dassey’s case (and his co-defendant, Steven Avery) alongside the many legal issues associated with his case.
To bring Dassey’s case alive for students, I view it as critical to rely on select filings from the litigants, select orders from the courts and appropriate law enforcement investigatory materials. I’ll submit to you that an investigatory criminal procedure class discussion focused on those materials creates a lively environment unlike a more typical conversation that revolves around discussing one case at a time in a vacuum—disconnected from how that case applies to a real person.
In a series of posts during my time as a guest here at the Lounge, I’ll propose how law schools might use the diverse range of issues raised specifically by Dassey’s case to better educate students. Sure, faculty might be interested in teaching a standalone course about Avery and Dassey, but reaching the broader audience of students who enroll in the criminal procedure courses is more salient.
First, I’ll spend my time here offering some thoughts on how Dassey’s case illustrates the need to teach students about interrogation methods alongside the corresponding judicial opinions. I felt and feel so strongly about the topic that I became certified in the country’s leading interrogation method.
Second, I’ll offer some thoughts on why Dassey’s case illustrates some of the complex ways that law enforcement interrogation tactics impact the application of Miranda doctrine. Demonstrating the disconnect between doctrine and police tactics is important given that so many students will be tasked in their careers with identifying legal issues from interrogation videos or interrogation transcripts.
Finally, I’ll offer why Strickland v. Washington remains an inadequate measuring stick for defense attorney performance. Once again Dassey’s case illustrates the harsh Strickland reality: poor lawyering passes muster for Sixth Amendment purposes.
Thanks so much for the opportunity to blog here on the Lounge. Special thanks both to Dan Filler and Steve Lubet. More on interrogation methods in my first substantive post.