Brendan Dassey’s court case came to an abrupt halt last week when, on June 25, 2018, the Supreme Court denied his petition for a writ of certiorari. The petition sought review of Dassey’s March 1, 2006, confession to law enforcement wherein he admitted to participating in raping and killing photographer Teresa Halbach. More specifically, the petition asked the Court to evaluate whether Dassey’s incriminating statements were voluntary pursuant to the due process clause.
The March 1 interrogation’s fame beyond legal circles arose from the Netflix documentary, Making a Murderer, which episode 3 focused on. I consider that interrogation in this post. In doing so, I argue that it makes for compelling criminal procedure teaching material in four main areas outside the voluntariness doctrine: Miranda custody, Miranda waiver, interrogation techniques, and the legal import of sequential interrogations. With Dassey’s petition denied, using Dassey’s case as a teaching tool seems all the more important. After all, forthcoming Supreme Court guidance seems unlikely given that the Court has not heard a juvenile interrogation case since Fare v. Michael C., decided in 1979.
Where we left off…
[Catch up by reading my last post in this series here.]
The night of Feb. 27, 2006
Something strange happened before the March 1 confession. Dassey was interrogated three times on Feb. 27, 2006. When the second interrogation that day ended at roughly 4:30 p.m., investigators made an interesting decision not to let him or his mother, Barbara, return home. Instead, Calumet County Investigator Mark Wiegert and Tom Fassbender, a special agent with the Department of Justice Division of Criminal Investigation’s Special Assignments Bureau, arranged for them to spend the night at the state’s expense under police guard at a hotel near the Two Rivers Police Station. Investigators, they said later, were concerned (1) about Dassey and Barbara’s safety, and (2) that the two might tamper with evidence if they went back home. Why those concerns dissipated on the night of Feb. 28 is not clear.
In any event, Wiegert and Fassbender paid a visit to Dassey at the hotel that night. They would interrogate him during an unrecorded session of an unknown length. And something important happened that night: Dassey told Fassbender that he stained his pants with bleach as he helped clean Avery’s garage floor. Wiegert testified later that after those interrogations, he thought that Dassey might have been involved in disposing of Halbach’s body. The Reid method would counsel him to independently corroborate Dassey’s story. But that’s not what happened next.
March 1, 2006 stationhouse interrogation
After a night at the hotel, Dassey and Barbara were released on Feb. 28. But on the following day—March 1, 2006—Wiegert and Fassbender removed Dassey from his high school at 9:50 am. By 10:05 am, the trio left the high school to begin the 11.6 mile drive to the Manitowoc Sheriff’s Department. In-car audio captures the initial questioning, during which Dassey waives his Miranda rights. He also gives the investigators permission to pick up the bleach-stained jeans that he referenced during the hotel interrogation.
Wiegert, Fassbender, and Dassey finally arrive at the police station at 10:43 am. In classic Reid fashion, Wiegert and Fassbender let Dassey sit alone in the interrogation room for precisely five minutes. The videotaped interrogation begins at 10:56 am (you can watch part one here, part two here, and part three here). Fassbender and Wiegert then proceed to interrogate Dassey for more than four hours without an attorney or parent/guardian present. He confesses to raping Halbach and slitting her throat on his uncle’s instruction.
Statements from this March 1 interrogation become the evidentiary showpiece for the state at Dassey’s trial. Despite conducting the largest investigation in Wisconsin state history, investigators never found physical evidence linking Dassey to Halbach’s murder.
Miranda waiver and custody problems persist
So much has been written about the March 1 interrogation, largely in the context of Dassey’s age and limited educational background as components of the due process voluntariness test. As readers who have followed my posts know, I’ve pushed another angle: use of his interrogations in the criminal procedure classroom to address Miranda custody, interrogation methods and Miranda waiver. The March 1 interrogation presents a renewed opportunity to feature that doctrine in the criminal procedure classroom.
Custody
Contrary to Dassey’s early trial counsel’s concession that the March 1 interrogation was non-custodial, Dassey was not free to leave at any time after investigators picked up from his high school—nor do they suggest otherwise to him. Indeed, unlike prior interrogations where Wiegert and Fassbender tell Dassey he is “not under arrest” and “free to leave,” they offer no similar reassurances on March 1. To the contrary, they take him from his school and transport him to a police interrogation room. Rather than ask if Dassey will accompany them, Wiegert tells Dassey immediately after picking him up that he is going to answer questions. In doing so, he more than suggests that Dassey’s freedom is predicated on his willingness to answer the investigators’ questions:
All right, ah, so like I told you, we’re going to take a ride over to the Manitowoc Sheriff’s Dept. They’ve gotta nice quiet room there, there’s no kids running in and out and stuff, so, and if you play it right, who knows, maybe we’ll get you back as soon as we can. If we, we all get over there as soon as we can.
Aside from the obvious—the extended detention of juvenile with significant intellectual and social limitations—part of what also makes the custody conclusion so straightforward is investigators’ thematic use, once again, of the Reid technique. We turn next to that use.
The Reid method returns
In part what sets the March 1 interrogation apart from its predecessors, is the investigators’ rampant misuse of the Reid method. As mentioned, for example, rather than follow Reid’s guidance to independently verify a suspect’s story, Wiegert and Fassbender in the limited interim time between the night of Feb. 27 and the morning of March 1 do not obtain independent physical evidence to corroborate Dassey’s involvement in Halbach’s murder.
Instead, throughout the March 1 interrogation, they rely on Reid step 1 (confrontation) by asserting superior knowledge over Dassey, telling him at multiple points that they already know what happened. Borrowing from step 2 (theme development), they also minimize Dassey’s involvement and reassure him that they’re “in his corner.” At one point, Fassbender goes so far as to say, “Um, from what I’m seeing, even if I filled those [gaps] in, I’m thinkin’ you’re all right. OK, you don’t have to worry about things.” Wiegert also selectively relies on step 5 (retaining the suspect’s attention) by moving closer to Dassey, putting a hand on his knee and telling Dassey to be honest. The honest person, Wiegert assures him, is the one who gets the better deal and, moreover, Weigert adds, it’s ok if Dassey helped his uncle, Steven Avery, kill Halbach as long as Avery was the one telling him to do it. Minimization techniques like these impermissibly communicated to Dassey that he would receive more favorable treatment from the criminal justice system if he provided the factual account desired by investigators.
Aggressive use of powerful interrogation tactics also undermine the reliability and credibility of a suspect’s confession. Dassey’s story, given its evolution, is hard to credit. Consider: in two prior interrogations on Feb. 27, he admits that he was present at the scene and that Avery stabbed Halbach. He repeats that story at the outset of the March 1 interrogation and again says “she was stabbed.” Somehow this morphs as the interrogation proceeds into Dassey saying that Avery cut off her hair, punched her, cut her, and shot her. His initial statement that Avery shot Halbach has garnered nationwide attention given that Wiegert is the one who first suggested to Dassey that a shooting occurred:
WIEGERT: So Steve stabs her first and then you cut her neck? (Brendan nods “yes”) What else happens to her head?
FASSBENDER: It’s extremely, extremely important you tell us this, for us to believe you.
WIEGERT: Come on Brendan, what else?
(pause)
FASSBENDER: We know, we just need you to tell us.
BRENDAN: That’s all I can remember.
WIEGERT: All right, I’m just gonna come out and ask you. Who shot her in the head?
BRENDAN: He did.
FASSBENDER: Then why didn’t you tell us that?
BRENDAN: Cuz I couldn’t think of it.
Collectively, tactics like this remind me of language from Chief Justice Warren’s majority opinion in Miranda: “the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.” But it also reminds us as professors more broadly that students of Reid would be able to identify both the tactics and when those tactics are used to improperly pressure defendants—even if inadvertently.
Waiver
There are also Miranda waiver problems preceding Dassey’s incriminating statements on March 1. Immediately after picking Dassey up from his high school, Wiegert reads Dassey his Miranda rights. But the iteration of those Miranda warnings materially differ from the version Dassey received just days earlier on Feb. 27. Differences in warnings aside, though, the acquisition of Dassey’s waiver ends in a manner similar to the Feb. 27 stationhouse interrogation. Wiegert asks after providing the rights, “Do you know and understand each of these rights, your rights, which I have explained?” Dassey replies only, “Yeah” and, like the Feb. 27 stationhouse interrogation, immediately begins answering questions. For the reasons I noted in my last post, that’s a clear problem in light of language from Edwards v. Arizona.
Regardless of whether you agree with my legal assessment, all three of these real-life examples—of Miranda custody, misused interrogation methods in action, and of Miranda waiver—provide rich sources for classroom use and discussion.
An unconsidered legal consequence
Let me now briefly suggest that Dassey’s age and background matter in a way that many have overlooked: in the context of a 2004 Supreme Court case called Missouri v. Seibert. Seibert is frustratingly complex and merits fuller treatment outside of the blog setting, but I can say this much: the Court disapproved of a particular two-step approach to Miranda. That is, obtaining incriminating statements prior to giving the suspect Miranda warnings, administering Miranda warnings, and then obtaining those same statements. The question in Seibert was not whether the suspect’s unwarned incriminating statements were admissible—they were not—but rather the post-warning statements. Those statements, better known as the fruits of a Miranda violation, would ordinarily be admissible. Seibert therefore stands as an exception to the ordinary rule that administering Miranda warnings to a suspect suffices to remove the conditions that precluded admission of the unwarned statement.
The question in a Seibert-like fact pattern is whether administration of midstream Miranda warnings is effective. To make that determination, the Seibert Court advised consideration of the following: (1) completeness and detail of the questions and answers in the first round of interrogation, (2) overlapping content of the two statements, (3) the timing and setting of the first and the second interrogations, (4) continuity of police personnel, (4) the degree to which the interrogator’s questions treated the second round as continuous with the first, and (5) whether the police advised the suspect that her prior statement could not be used.
I have long wondered about Seibert as a tool to argue for suppression of Dassey’s March 1 statements. That is, to argue that his March 1 statements were the unconstitutional fruits of prior unwarned interrogations—in Dassey’s case, the first Feb. 27 schoolhouse interrogation and, possibly, the hotel interrogation that took place that night. Many of the Seibert factors are, after all, in play. Among them, Wiegert and Fassbender clearly think on March 1 that they are covering ground previously covered in prior interrogations, they make several references to their prior conversations, and Dassey repeats many of the exact same statements he initially offered in his first interview. Although the time between interrogations is considerably longer than in Seibert, we are left to wonder about when the hotel interrogation occurred alongside what role age and educational background might play in an updated Seibert analysis. Of course, the same two officers interrogated Dassey four times and, in doing so, they did not advise him that his statements at the schoolhouse on Feb. 27 could not be used against him.
Admittedly, Seibert is an imperfect tool to reexamine the Dassey interrogations. But two things are clear: first, Dassey’s case offers yet another dynamic illustration of Miranda doctrine for use in the classroom. Second, the facts of his case have encouraged reconsideration of the due process voluntariness test for juveniles; there’s no reason it cannot do the same for other areas of the law like Miranda’s exclusionary rule.
In my next post, I’ll begin discussing the other reason—a reason aside from the interrogations, that is—for Dassey’s conviction: bad lawyering.
Seems simple to me. The police do not want to take a STATEMENTS from innocent people. Colossal waste of time and limited resources.
Officer Krupke: I would like to talk to you about that stolen car in Idaho.
Me: I have never been to Idaho. Although I hear its nice. Good Potatoes.
Officer Krupke: You are right. I am sorry for the bother and your time. Here is a $10.00 Target gift card for your troubles....
See, for a few hundred dollars, most of us high profile, Leading Lawyer, AV Rated boutique bottom feeders will appear at the station house with you to tell Officer Krupke that "we are not talking." Unlike TV, we schmooze with the Officer and they get no confession...
Posted by: Scott Pruitt Edndowed Chair in Enviconmental Justice | July 05, 2018 at 05:07 PM