Brendan Dassey is down to his last strike. Having filed his petition for a writ of certiorari before the U.S. Supreme Court, his case is over if the Court declines to grant cert. The petition argues that Dassey’s March 1, 2006, confession was involuntary. Using that confession against him at trial, the petition argues, violated the Fourteenth Amendment’s due process clause. Dassey’s petition has appropriately generated considerable media coverage (here and here for example) alongside scholarly commentary (here and here for instance).
But the value of Dassey’s case for educational purposes involves much more than the voluntariness issue. That issue has taken prominence only because it is an issue preserved for appeal. But Dassey’s case presents other perhaps more fruitful grounds for challenging his conviction that were not preserved by earlier lawyers. Most critically, Dassey’s early lawyer failed to preserve critical Miranda-based arguments related to custody.
One of those unpreserved issues arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the second time. The interrogation, which the Making a Murderer Netflix documentary series did not feature or mention, offers another example of how an attorney’s knowledge of the Reid interrogation technique can better inform Miranda-related arguments. Investigators would interrogate Dassey three times that day. Today, in this fifth post, I’ll consider what took place in the first of those interrogations and how it could have supported an important Miranda-based defense that a defense attorney with an understanding of Reid could have raised.
What happened after November 6, 2005?
In a prior post, I explored law enforcement’s first interrogation of Dassey on Nov. 6, 2005. During that interrogation, which occurred on a roadside nearby the Avery compound, two detectives questioned Dassey in relay fashion for roughly 45 minutes. Dassey gave a second statement on Nov. 10, 2005, during which time he told police that he attended a bonfire in Steven Avery’s yard around Nov. 1. He said that he and Steven burned various items but saw no sign of homicide-victim Teresa Halbach while at the bonfire. Dassey said he stayed for only an hour or two but left while the fire was still burning steadily.
Investigators left Dassey alone for several months after questioning him in November. But in January of 2006, Kayla Avery, Dassey’s 15-year-old-cousin, walked into Susan Brandt’s office at Mishicot High School. At the time, Brandt was interning at both the high school and Mishicot Middle School as part of completing her Master’s Degree in Counselor Education. According to Brandt, Kayla entered her office and said she “was scared” because “her uncle, Steven Avery, had asked one of her cousins to help move a body.” The cousin to whom she was referring was, of course, Dassey.
That next month, specifically on Feb. 20, 2006, Calumet County Investigators Mark Wiegert and Wendy Baldwin interviewed Kayla. During that interview, Kayla told investigators that Dassey was “acting up lately” and, in particular, that Dasey “would just stare into space and start crying, basically uncontrollably.” She also relayed to investigators that, in her opinion, Dasseyhad recently lost approximately forty pounds.
The first February 27 interview
[Note: you can follow along with this part of the post by listening to the interrogation here.]
Based on Kayla’s Feb. 20 interview, Wiegert decided to question Dassey again. On Monday, Feb. 27, 2006, Detective Wiegert and Tom Fassbender, a special agent with the Department of Justice Division of Criminal Investigation’s Special Assignments Bureau, pulled Dassey out of class at Mishicot High School to question him. The interrogation, which took place in a conference room at the school without a lawyer or guardian present, began at 12:30 p.m. and concluded at 2:14 p.m.
Whereas the Nov. 6 interrogation offered considerable insight into when a Reid interview shifts into a Reid interrogation, Wiegert and Fassbender on Feb. 27 bypassed the interview steps and immediately began using Reid interrogation techniques. But only a knowledge of Reid would help the savvy defense attorney spot that what took place in that school conference room was hardly a “witness interview” as Wiegert would assert later.
At the outset of the interrogation, Wiegert and Fassbender told Dassey that he was not under arrest, was free to leave, and did not have to answer their questions. Almost immediately thereafter, in the first two minutes, the detectives began relying on step two of the Reid technique (theme development) —“justice for Teresa.” The detectives were, moreover, confrontational with Dassey within those first two minutes. Relying on Reid step one (direct confrontation), Fassbender asserts, “And I’m looking at you Brendan and I know you saw something and that’s what killing you more than anything else, knowing that Steven did this, it hurts.”
Further evidence of the Reid interrogation technique persists throughout the interrogation, including step six of Reid (dealing with a suspect’s passive mood). Throughout the first portion of the interrogation, both detectives question Dassey extensively on whether he saw body parts in the bonfire he attended. Dassey first responds that he saw a “garbage bag” but detectives push. As the interrogation continues, they encourage him to “be honest” and assure Dassey that they will “go to bat” for him. Wiegert further assures Dassey, “We’re not gonna run back and tell your grandma and grandpa what you told us or anything like that.” For more than twenty minutes, Dassey is largely nonresponsive to Wiegert and Fassbender’s persistent efforts. But the detectives break through a little more than halfway thru the interrogation (~27:00 if you’re listening to the interrogation):
WIEGERT: It’s not your fault. Remember that.
FASSBENDER: Yeah, it’s not your fault . . . Like I said, Mark and I are not going to leave you high and dry. I got a very, very important appointment at 3:00 today. Well I ain’t leavin’ for the appointment until I’m sure you’re taken care of . . . telling the truth . . . get this off your chest and get it out in the open . . . so go ahead and talk to us about what you saw in the fire are killin’ you right now . . . what you see. Go ahead, go ahead . . . you’ve got to do this for yourself. I know you feel that it’s gonna hurt Steven, but it’s actually, actually gonna help Steven come to grips with what he needs to do. You know we found some flesh in that fire too. We know you saw some flesh. We found it after all that burned. I know you saw it . . . Tell us. You don’t have to worry about . . . you won’t have to prove that in court. (phone rings) Tell us what you saw. You saw some body parts . . . You’re shaking your head . . . tell us what you saw . . .
BRENDAN: . . .
FASSBENDER: You all right? You all right? What other parts did you see?
BRENDAN: Toes.
The remainder of the interrogation included additional statements from Dassey that minimally, to the minds of investigators, put him at or near the crime scene as or after it happened. For example, Wiegert and Fassbender would get Dassey to admit that he saw some clothes “like a blue shirt, some pants.” They also get him to admit, after suggesting it to him, that there was blood on those clothes.
Fassbender and Wiegert permitted Dassey to return to class at 2:14 p.m. when that interrogation ended. But at 3 p.m., Dassey returned to the school conference room. Wiegert and Fassbender would then take Dassey to the police station for another interrogation (we’ll tackle that one in the next post).
The aftermath
There is much to be concerned about with this first Feb. 27 interrogation. Chief among those concerns is the investigators’ use of adult interrogation tactics on a juvenile with significant intellectual and social limitations. Add to that the absence of a guardian during the interrogation. Even the Reid technique counsels that, in the case of juveniles, it’s best to involve the parents:
Several states provide by statute that a youthful offender (juvenile) suspect cannot be interrogated unless one parent or guardian is present. Under this requirement, the investigator should spend some time with the parent before questioning a son or daughter. During this session, the investigator should take a positive approach and impress upon the parent that the only interest in talking to the youth is to ascertain the truth. The investigator should emphasize that he is just as much interested in establishing innocence as responsibility.
Still other concerns merit highlighting. It might seem, by any measure, that Dassey was in custody for purposes of Miranda. But recall that the interrogation began with Fassbender telling Dassey he was “free to leave,” not under arrest, and that he did not have to answer questions. Lower courts often weigh those comments heavily in finding the particular interaction non-custodial for Miranda purposes—no matter what happens afterward. Although the question of whether Dassey was in custody during this schoolhouse interrogation was never litigated, a non-custody result would likely occur here unless the defense attorney educated the suppression court about the use of Reid. Remember, Reid is designed to psychologically pressure the suspect and, accordingly, no reasonable person would feel free to leave during a Reid interrogation.
Apart from Miranda custody concerns, why does this first Feb. 27 interrogation matter? Dassey for the first time placed himself at the crime scene. His involvement level, to the minds of investigators, was therefore subject to further investigation. Relatedly, Fassbender and Wiegert learned that Dassey could be pressured into providing incriminating responses. Whether they pressured him in good or bad faith in that school conference room (and in later interrogations) is irrelevant. The point is that they learned Dassey could succumb—easily—to the Reid method. Stated more simply, Wiegert and Fassbender realized in that first Feb. 27 interrogation that the Reid method worked on Dassey. That type of police discretion to use Reid on unsophisticated juvenile suspect—if left unchecked by a defense attorney—is at once powerful and scary.
In sum, the first Feb. 27 interrogation demonstrates that knowledge of Reid could have clarified when Dassey was in custody for purposes of Miranda while countering investigator claims that what took place in that conference room constituted merely a “witness interview.” More on the remaining interrogations of Dassey left unexplored by Making a Murderer in my next post.
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