The internet is buzzing about the Netflix series “Making a Murderer.” This gripping 10-part documentary is about Stephen Avery, who spent 18 years in prison for a crime he did not commit. DNA evidence freed Avery in 2003. However, two years later, police arrest and charge him with the murder of a young woman, Teresa Halbach. Then, the police arrest Brendan Dassey, his 16-year-old nephew, for helping Avery with the crime. Both men were convicted of Halbach’s murder in separate trials.
Much of the internet chatter focuses on flaws in the justice system including the actions of the prosecutor and the Manitowoc County Sheriff’s Department. But one flaw is particularly egregious, the failure of the justice system to protect a vulnerable minor, Brendan Dassey.
This two-part series focuses on Brendan Dassey. In the first part, we look at how Brendan’s disability affected his demeanor, responses to investigators’ questions and his confession. In the second part, we examine what the justice system could do to protect people with disabilities like Brendan Dassey.
Brendan Dassey background information
Despite his youth and disability, police interrogated Dassey on several occasions without the presence of his parents, an attorney or another adult. This questioning resulted in Dassey confessing to a crime he says he did not commit. His confession was the crucial factor in his conviction.
It is difficult to understand why someone would confess to a crime they did not commit. But false confessions are more common than you think, particularly when a juvenile is involved. According to the Innocence Project, “False confessions played a role in 28 percent of the nation’s 337 wrongful convictions overturned with DNA, and in 65 percent of exonerations involving minors.” If you consider Brendan’s age, disability and the questioning techniques detectives used, his claim of innocence is plausible.
The documentary and trial transcripts offer ample evidence that Brendan’s youth and learning disability impaired his ability to comprehend the gravity of his situation when he was questioned by police. We are not told of a specific diagnosis for Brendan, but during the series we hear Brendan described as:
- Learning disabled.
- Having an IQ of around 70.
- Reading at a 4th grade level.
- Not very smart.
- Having some special education classes.
In his closing statement, Brendan’s attorney Ray Edelstein tells the jury how Brendan’s school records describe him as expressionless and someone who does not look adults in the eyes. He tells the jury the results of school tests that showed a difference between Brendan’s physical and mental age. The results showed an age-equivalent of:
- Five years and eight months for recalling sentences as a subtest.
- Nine years, nine months for formulating sentences.
- Five years, three months for number repetition forward.
- Six years, three months for number repetition backwards.
Throughout much of his questioning and even at trial, Brendan shows little, if any, emotion. He rarely makes eye contact with the investigators. Brendan’s demeanor is consistent with that of people with a mild intellectual disability. Nevertheless, research indicates that his demeanor is inconsistent with his claim of innocence in the eyes of some judges, jurors and police officers.
An article in “Legal and Criminological Psychology” discusses the effect of defendants’ demeanor on police, jurors and judges. The authors describe the results of their study on the impact of a defendant’s demeanor. Their findings include:
- A suspect’s demeanor during questioning influences decisions on guilt or innocence.
- Flat or unemotional demeanor increases assumptions of a suspect’s guilt.
- A suspect’s appropriate emotional demeanor influences his chances of exoneration.
- A suspect’s confession accompanied by flat demeanor increased “guilt ratings” from 40 to 68 percent.
Police questioning of Brendan Dassey
In their appellate brief, Brendan’s attorneys argued that the techniques used by investigators led to his involuntary confession. They say investigators improperly threatened Dassey, falsely promised him leniency, said they were there to help him and suggested facts to him throughout the interrogations. Here are three excerpts from the transcripts of Brendan’s interviews illustrating the technique used by the investigators.
Statement made by Special Agent Tom Fassbender during questioning of Brendan on 27 February 2006 at Mishicot High School (from interview transcript.)
“…. Mark and I, yeah we’re cops, we’re investigators and stuff like that, but I’m not right now. I’m a father that has a kid your age too. I wanna be here for you. There’s nothing I’d like more than to comeover and give you a hug cuz I know you’re hurtin’. Yes I do wanna give justice to, to this and to the Halbachs too. You wanna tell me what you saw and what you heard, cuz I know that something is, it’s intensely bothering you. Talk about it, we’re not just going to let you high and dry, we’re gonna talk to your mom after this and we’ll deal with this, the best we can for your good OK? I promise I will not let you high and dry, I’ll stand behind you.”
From transcript of interview of Brendan Dassey on 1 March 2006
FASSBENDER: It’s extremely, extremely important you tell us this, for us to believe you.
WIEGERT: Come on Brendan, what else?
FASSBENDER: We know, we just need you to tell us.
BRENDAN: That’s all I can remember.
WIEGERT: AU right, I’m just gonna come out and ask you. Who shot her in the head?
BRENDAN: He did.
From transcript of interview with Brendan Dassey on 13 May 2006
WIEGERT: Because you know we have evidence about a lot of this stuff, right?
You’re aware of that?
WIEGERT: And the evidence will tell us if you’re lying or not. OK?
BRENDAN: Mm hum.
WIEGERT: Now where is her truck when you go into the garage?
BRENDAN: I didn’t see it.
WIEGERT: Brendan at some point, she’s in that truck. We know that. OK?
Bleeding. So you can’t say you didn’t see the truck or know where the truck was because she had ta be in that truck after she was bleeding. OK? That’s just the way it is. And I’m not gonna sit here and let ya lie ta me. You need to be honest here. We just went through that.
The transcripts show the interrogators repeatedly telling Brendan they are there for him and they want to help him. They tell Brendan he will be okay no matter what he says he did. If Brendan says something that doesn’t fit the investigators version of events, they tell him he is lying. They continue to question Brendan until they like his responses.
Impact on Brendan Dassey
Because of low intelligence, Brendan is vulnerable and has low self-worth. .He does not understand that the detectives are manipulating him to get the information they want. Because of their representations to him, Brendan believes they are trying to help him. Even if he understands his Miranda rights including his right to have an attorney present, he doesn’t think he needs an attorney as he is among friends.
Brendan’s statements show he does not understand the seriousness of the situation he is in or the repercussions of what he says to police. No one explains this to Brendan in a way he understands. Toward the end of his interrogation on 1 March 2006, Brendan asks Special Agent Fassbender, “Am I gonna be at school before school ends?” He asks this question after admitting he raped and killed Teresa Halbach.
In part two we examine steps to reduce the impact of a disability on a defendant including alternative interview techniques and jury instructions.