Reid & sequential interrogations

The Supreme Court has yet to decide whether it will review the voluntariness of Brendan Dassey’s March 1, 2006, confession to raping and killing photographer Teresa Halbach. It will do so today. Numerous interrogation-related issues of first impression arose in Dassey’s case, largely in the context of Miranda custody, Miranda waiver and use of the Reid interrogation technique on juvenile offenders. But sadly, none of those issues were available for presentation to the Supreme Court because trial counsel for Dassey waived them. All that was left for appellate counsel before the Supreme Court was the question of whether his March 1, 2006, confession was voluntary for purposes of the due process clause. Dassey’s petition for Supreme Court review would have been much stronger if these issues were available for inclusion. Unlike the uniqueness of his Miranda-related issues, the Court has considered innumerable voluntariness issues dating back to Hopt v. Utah in 1884.

Today, we consider another set of unpreserved issues, largely focused on Miranda custody and waiver, which arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the third time and the second time that day. The second Feb. 27 interrogation went unexplored by the Netflix documentary series Making a Murderer and untested by his trial counsel. Had Dassey’s then lawyer had a firm understanding of the Reid interrogation technique, then perhaps he would have had a fuller range of preserved Miranda-related arguments to present in his Supreme Court petition.

The schoolhouse interrogation

In my last post, I considered the first Feb. 27, 2006, interrogation of Dassey, which began when Calumet County Investigator Mark Wiegert and Tom Fassbender, a special agent with the Department of Justice Division of Criminal Investigation’s Special Assignments Bureau, pulled him 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. At no point during that interrogation did the investigators read Dassy his Miranda rights.

During that first Feb. 27 interrogation, Dassey told investigators that he was at a bonfire with his uncle Steven Avery on the night of Oct. 31. He said that he saw body parts in the bonfire, women’s clothing and a RAV4 belonging to the victim, Teresa Halbach. He also told Wiegert and Fassbender that Avery used rope to tie up Halbach before he stabbed her. For the first time, following two prior interactions with investigators, Dassey placed himself at or near the scene of Halbach’s death.

When the schoolhouse interrogation concluded, Wiegert and Fassbender permitted Dassey to return to his classes. He specifically rejoined his Earth Science class, which he described to investigators as “about rock.” Dassey returned to the school conference room at 3 p.m. where Wiegert and Fassbender were waiting. They asked him and his mother, Barbara, who had arrived shortly after he returned to class, to accompany them to a nearby police station to participate in a videotaped interrogation.

The stationhouse interrogation

[Note:  you can follow along with this part of the post by listening to the interrogation here.]

Fassbender and Wiegert took Brendan to the Two Rivers Police Station, which is roughly 7.7 miles from the high school. The interrogation began at 3:21 p.m. and lasted roughly 43 minutes without a lawyer or guardian present. Although the officers later asserted that they asked Dassey’s mother whether she wanted to join him in the interrogation room, Barbara said they made no such offer.

In any event, Dassey for the first time received Miranda warnings, which he “waived” (more on that in a moment) and began repeating to detectives his story that Avery tied up and stabbed Halbach. He again told Wiegert and Fassbender that he saw “girl clothes” and there was some blood on them. He also again repeated that he saw body parts in the bonfire on the night of Oct. 31.

But his story, the relevant portion of which you can listen to from 11:38-14:09 if you’re listening to the interrogation, included new details unmentioned during the earlier schoolhouse interrogation. In particular, he said that Avery stabbed Halbach in her stomach in what Dassey called her “jeep.” He added that Avery hid the knife under the seat and then tried to hide the jeep. He further relayed that Avery transported Halbach’s body to the bonfire fire pit using a snowmobile sled.

The new details of Dassey’s story also included more of his personal involvement. When asked by Wiegert whether he helped Avery put anything in Avery’s garage after Halbach was killed, he admitted, “Yeah, ah, we took the silver cool ah, gray jeep and put it in the garage.”

The interrogation ended at roughly 4:30 p.m.

Dassey was in custody at the Two Rivers Police Department

Custody for Miranda purposes is an objective inquiry that exists when “a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’” Berkemer v. McCarty, 468 U.S. 420, 440 (1984). The initial determination of custody “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323 (1994). In the context of the interrogation, the question is whether a reasonable person would have felt he or she was at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112 (1995). The suspect’s age, so long as it’s known to the officer at the time of police questioning, is a relevant factor in the custody analysis. J. D. B. v. North Carolina, 564 U.S. 261, 277 (2011).

Against that backdrop, Dassey, an intellectually challenged 16-year-old, was in custody. To begin with, he entered an interrogation room setup according to the Reid technique. He was seated in a straight-backed chair on the end furthest from the exit of a sparsely appointed room with the detectives seated between him and the single door. The room had nothing hung on the walls, was painted in a neutral color and included an observation mirror. Although the interrogation was recorded, both detectives entered with a file and a notepad for the ostensible purpose of taking notes.

The decision to question Dassey in a precise and controlled setting was no accident. Before commencing a Reid interrogation, the Reid method counsels investigators to set up a private soundproof room within the police station that is free from distractions and furnished sparsely with straight-backed chairs. The room should also be equipped with a one-way observation mirror so that other detectives can evaluate the suspect’s “behavior symptoms.” Arranging the room in this manner, according to Reid, isolates the suspect and removes the suspect from any familiar surroundings, thereby heightening the suspect’s anxiety while incentivizing the suspect to extricate himself from the situation. As the picture from his interrogation reflects, Wiegert and Fassbender followed Reid’s guidance to a tee.

Once the stationhouse interrogation began, Wiegert and Fassbender pick up where the schoolhouse interrogation left off by relying on a previously unused step of the Reid interrogation technique. Unlike the schoolhouse interrogation, where Wiegert and Fassbender were confrontational (step 1), sought to develop an interrogation theme (step 2) and handled Dassey’s denials (step 3), this interrogation largely relied on step 8—having the suspect orally relate various details of the offense. Throughout the conversation, Wiegert and Fassbender frequently return to his story in order to test whether or not he will tell the same story. During one sequence of 15 pages of interview transcript, they push him to confirm his story three different times.  

But despite overwhelming evidence that Dassey was in custody at the stationhouse on Feb. 27, Wiegert would testify during a hearing on his motion to suppress that what took place was merely a “witness interview.” The prosecutor, Ken Kratz, had this exchange with Wiegert:

K:        Describe for the Court the difference between a witness interview and a suspect interview if, in fact, there are any differences?

W:        Well, there’s several differences. A witness interview, basically, is when a person is not in custody. They’re free to leave. They    can stop answering questions at any time. Um, they’re treated as somebody who may have information about a case. Or a suspect interview, sometimes they’re not free to go. Um, they’re sometimes, urn, you know more information, you know that they're involved in something, they're treated as that you already know something has occurred and they are involved in it. That’s the difference between the two.

Calling what took place a “witness interview” is good practice—for an investigator. Left unchecked by the defense attorney untrained in Reid permits an officer (and therefore the prosecutor) to argue that every police-suspect conversation was merely a noncustodial interview. That’s what happened here. Len Kachinsky, a lawyer who represented Dassey for a time prior to trial, conceded that what took place on Feb. 27—even at the stationhouse—was not custodial interrogation. Although he received Miranda warnings prior to the Feb. 27 stationhouse interrogation, that did little to alter the perception of the interrogation’s environment in the eyes of his lawyer. Indeed, Kachinsky appeared to miss the custody issue because of his uniformed acceptance of Wiegert’s statement. But even a casual understanding of Reid would have caused a reasonable defense attorney in similar circumstances to reject Wiegert’s characterization of the Feb. 27 stationhouse interrogation as a “witness interview.”

Dassey did not waive his Miranda rights

One other troubling legal issue arose during the Feb. 27 stationhouse interrogation—whether Dassey actually waived his Miranda rights. Neither the Supreme Court nor the Reid technique expressly consider the role of age or education in the Miranda waiver calculus.

A waiver of Miranda rights, pursuant to Edwards v. Arizona, “must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’” 451 U.S. 477, 482 (1981).

For its part, the Reid technique advises that “the interrogation of juvenile suspects may be conducted in essentially the same way as for adults.” That interrogation process, per Reid, includes taking no special precautions when obtaining a Miranda waiver. It is hard to blame the Reid method, though, given that the Supreme Court has not considered a juvenile interrogation case in nearly forty years. Fare v. Michael C., 442 U.S. 707, 725 (1979). And Fare, in the context of waiver, expressly held that no reason existed to create a separate juvenile Miranda waiver standard—separate, that is, from the adult standard. One wonders whether the Supreme Court would be more active in Miranda waiver jurisprudence if it knew that Reid, the most prominent interrogation method in the country, draws no distinction between adults and juveniles.

In any event, Edwards is clear that a valid waiver “cannot be established by showing only that [the suspect] responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id. at 484. But that’s precisely what happened in Dassey’s case. At the outset of the Feb. 27 stationhouse interrogation, Wiegert read to Dassey his Miranda rights. After doing so, Wiegert added:

WIEGERT:  *** No promises or threats have been made to me and no pressure of any kind has been used against me. Do you agree with that?

DASSEY:  Yeah.

WIEGERT: You have to speak up a little bit.

DASSEY:  Yeah.

WIEGERT: Yes?

DASSEY: Yes.

WIEGERT: Then if you agree with making a statement, I need you to sign right there and if you wanna read it, you can read it there, (pause) Why don’t you put your initials here and put your initials here. These are the two things I read to you. (pause) OK, and I’m just going to put the place up here. Two Rivers Police Department, and the date is 2/27/06, and the time is approximately 3:21 p.m. OK; Let’s put that over there for now. Um, Brendan, just a few things. - OK, we’re going to talk about what you had initially told us earlier, OK. Um, can you state your full name with middle initial and date of birth?

DASSEY: Brendan Ray Dassey and then 10/19/ of 89.

Notice that Dassey answered only the question of whether Wiegert had made any promises or threats to him. Dassey, however, at no point indicated that he understood his rights either individually or together. That by itself is concerning, but particularly so for a suspect who, again was 16, suffered from speech and language impairment, received special education services and scored in the low average to borderline disabled category on IQ tests.

Dassey did not knowingly or voluntarily waive his Miranda rights and suggesting the contrary is a legal fiction. The Court should revisit the question of whether an intellectually and socially challenged juvenile can properly waive Miranda pursuant to an adult waiver standard. But its opportunity to do so is hardly a foregone conclusion; Dassey’s trial lawyer, after all, either waived or missed the issue. In the interim, it falls on the defense bar to educate suppression courts that Reid’s failure to alter its nine-step technique for juvenile offenders reaches questions about the attachment of Miranda custody and the legitimacy of Miranda waiver.

Of course, all of this—the two interrogations on Feb. 27 and the one to come that night—is building to March 1, 2006, which again is at the center of Dassey’s Supreme Court petition. More on the final Feb. 27 interrogation alongside the March 1 interrogation in my next post.

Comments

[Deep State Special Legal Counsel]

Clients tend to spill their guts to Coppers and us attorneys who can help them....get stuck with a bunch of horse shit. They think we can waive a magic wand and make this BIG MISUNDERSTANDINF go away. It's all a BIG MIUNDERSTANDING. Cops like wasting their time talking to innocent people, after all.

[anon]

If this person who pollutes every post with a bafflingly stupid and unfunny attempt at "humor" is actually a defense lawyer, then one's impression of the criminal "justice" system is affirmed: a collection of incompetent ignoramuses, processing the accused thru a kangaroo court system that is anything but fair and just.

What is even more concerning? "Prosecutors" - who delight in obtaining convictions against the clearly guilty (represented by overworked, lackluster pds), who fold and frequently lose (even when they shouldn't) when confronted by competent counsel, become JUDGES.

Anyone who has read the transcript of any random criminal trial knows what a farce the participants in this circus are perpetrating on an unaware public.

[Deep State Special Legal Counsel]

I am soooooo sorry I misspelled MISUNDERSTANING. I hit the wrong key. I have fat fingers. ^^^^Your assessment of the criminal justice system proves exactly my point: KEEP YOUR MOUTH SHUT.

It's not incompetent ignoramuses---its overworked and overwhelmed actors processing people with no resources or time. It's the mantra of "kill the beast" and "no new taxes" coming to fruition. So, the most expedient (cheap and fast) way to convict a mope is getting her to open her trap among other things.

The point of my post is that defendants place their trust into a system that nobody really has any control over. Yes, even the judge.

[Deep State Special Legal Counsel]

…….and yes, most defendants are "clearly guilty." Prosecutors should have a 95% conviction rate. Why? Because everything worked as it should. The system was working. The Copper had PC for the arrest, the evidence was admissible, the defense lawyer was effective, the prosecutor was fair and the Judge evaluated the facts. Or if you are smarmy like me, the defendant's arm was twisted to take a deal because she was looking at double digits and the prosecutor didn't want to bring in eight Coppers.

[[M][@][c][K]]

One of the odder details I picked up along the way (and professors, feel free to swoop in with a citation or counter-citation) is that when police forces in various countries were required to audio-tape all police interviews (custodial or not) - and then video-tape interrogations, conviction rates apparently rose - though the police ended up having to hone their interrogation skills (and lose the phonebooks and rubber hoses.)

It does mean that in much of Europe every police interview, even of non-suspect witnesses is recorded.

That said, amongst career criminal families, members are always at a disadvantage. In Dublin there was a family called Felloni - who inevitably came to be known as the Felonious Fellonis - they lived in an infamous public housing complex oddly on the south side of the city, Fatima Mansions https://en.wikipedia.org/wiki/Fatima_Mansions_(housing) - it was actually near leafy (and somewhat posh) Rathgar. Some of the family history is here: https://www.irishtimes.com/culture/felloni-family-history-paints-gruesome-picture-1.118094

Members of my extended family would defend various younger Felloni's from time to time. The family was dominated by Tony - the patriarch, one of the worst people anyone could imagine. But by all accounts some of the younger members tried to break out of the cycle - but no one would hire them, both because they came from Fatima Mansions - and the Felloni name. But the big problem was that if a Felloni was ever charged with anything - they had very little chance of acquittal. The family was that notorious.

I became aware of this when some of the teenage members of the family fell through the roof of a warehouse - a very high roof (60 feet) and were killed and crippled. It turned out that these kids had managed to largely extricate themselves from the family business, but had been pressure by Tony into doing more jobs.

Anyway, it is appropos of not very much.