Defending Brendan Dassey of “Making a Murderer”

Episode Notes

Transcript

Planet Lex: The Northwestern Pritzker School of Law Podcast

Defending Brendan Dassey of “Making a Murderer”

08/17/2016

Intro: Hello listeners! Just a quick announcement before we get started. The episode you are about to hear aired earlier this year and we’re re-releasing it since Brendan Dassey’s conviction was overturned. In case you haven’t heard Dassey’s 2005 conviction for murder, rape and corpse mutilation of Teresa Halbach was overturned last Friday and he is set to be released from his life sentence within 90 days, unless prosecutors file an appeal.

This is a great episode where Dassey’s attorneys discuss the original conviction, appeal process and making a murder. We hope you like it.

If you want more, check out the latest episode of Lawyer 2 Lawyer and Bob Ambrogi interviews Dean Strang, Steven Avery’s attorney and Peter Linton-Smith, who has covered the case since the original trial. You can tune in by visiting  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or by searching Lawyer 2 Lawyer with the number 2 in iTunes or your podcast app.

We hope you enjoy the following episode.

Intro: Welcome to Planet Lex: The Podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away Dan.

Daniel B. Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex, podcasting from the Northwestern Pritzker School of Law from Chicago, Illinois. My name is Dan Rodriguez. I am the Dean of the Law School and your host.

This is our inaugural podcast, the first in a series of conversations about the law, law and society, law and technology, and the future of legal education and legal practice; in other words, a bunch of interesting stuff about the law. And where better to have these conversations than here at Northwestern; home to an incredible community of people who are doing really interesting work.

And I am pleased to introduce two of them to you today. My guests are Laura Nirider and Steven Drizin; two professors in our Bluhm Legal Clinic here at Northwestern, and central parts of the Center on Wrongful Convictions of Youth. These are two able lawyers who have worked for years to overturn wrongful convictions and ensure that evidence, particularly in cases where young people are involved, is reliable.

They have recently been in the spotlight because of their representation of Brendan Dassey, one of the subjects of the documentary “Making a Murderer”, which I highly recommend to all of our listeners, if you haven’t seen it already. So welcome and thank you for joining me.

Steven Drizin: Thank you.

Laura Nirider: Thanks very much.

Daniel B. Rodriguez: So my first question is a question you have been asked I gather many times in recent weeks and I suspect it is impossible to answer in a nutshell, but I will ask it nonetheless, and that is, could you take us through and describe this litigation that’s the subject of “Making a Murderer”?

Steven Drizin: I will start and I will let Laura chime in, but the original round of litigation came after Brendan Dassey was convicted. I was contacted by friends in the State Appellate Defender’s Office in Wisconsin to represent Brendan on appeal, and I agreed to take that representation, and at that time Laura was my student at Northwestern.

The appellate process in Wisconsin is somewhat different than it is in other states, because you have to litigate both your direct appeal issues and your post-conviction issues in the same appeal. So we had to do two years of intensive investigation and then we filed our appeal before the Wisconsin Court of Appeals.

We lost that appeal. We then took the case up to the Wisconsin Supreme Court, which refused to accept the appeal, and now we are in Federal Court, and I will let Laura talk a little bit about that litigation.

Laura Nirider: Sure. So as Steve said, we are now in Federal Court in Wisconsin, where we filed a Petition for Writ of Habeas Corpus, in which we are asking the Federal Courts to review the way in which the Wisconsin State Courts handled Brendan’s case.

Daniel B. Rodriguez: Can I just jump in and ask, as I understand it, the appeals in the Wisconsin State system have been exhausted, is that correct?

Laura Nirider: That’s right. That’s exactly right.

Daniel B. Rodriguez: So Brendan Dassey, like his uncle Steven Avery, have lost basically at every stage in the process, from of course the original trial, through the Wisconsin Judicial System.

Laura Nirider: That’s exactly right. We have gotten shut down in the Wisconsin Judicial System to date. But now we are in Federal Court. We are in the Eastern District of Wisconsin where we filed this Petition for a Writ of Habeas Corpus, and there we are asking the Federal Court to review two claims in particular.

We are first asking it to look at Brendan Dassey’s confession, which I think your audience will have seen clips from that in “Making a Murderer”. A confession that was procured during an interrogation, of course of a 16-year-old boy with intellectual limitations, who is in the interrogation room by himself, without a parent or a lawyer present, and who gave a very troubling confession at the end of that interrogation. A confession that’s characterized by fact feeding, by I think Brendan guessing at what the right answer might be during the interrogation, and a host of other factors that make it completely unreliable.

(00:05:16)

So we are asking the Federal Court to take a fresh look at that confession, and to rule it involuntary, that is, that it was taken in violation of Brendan’s Fifth Amendment rights. So that’s our first claim as it relates to Brendan’s confession.

Our second claim relates to the representation of Brendan by attorney Len Kachinsky, who as your audience might remember was Brendan’s pretrial attorney. We argue that attorney Kachinsky was not loyal to Brendan during his representation; that in fact he effectively worked with the State to try and convict his own client, to secure a guilty plea and to twist Brendan’s hand into incriminating himself for the State’s benefit.

So those are two claims and we are hopeful the Federal Court will rule on those soon.

Daniel B. Rodriguez: Great. Obviously our listeners are most interested in — well, I shouldn’t judge what they are interested in, I obviously want to talk about the confessions and aspects of the case, but if I may just return to the procedural posture, just so we all understand it, the Habeas Corpus Petition before the Federal Courts, does the Federal District Judge, again, who has the case right now, does he or she need to pay any attention to what the Wisconsin State Courts have done? Is there any sense in which the State Court decisions and the losses that Mr. Dassey has suffered binding or influential on the judgment of the Federal Court?

Laura Nirider: Yes, a court that sits in Federal Habeas must under Federal Law give quite a bit of deference to the way that the Wisconsin State Courts handled this case. So that’s a large hill for us to be climbing up frankly. Under the law the Federal Court has to consider all the reasons the Wisconsin State Courts might have had for ruling the way they did, and only in that case, once it’s considered all of those reasons that the Wisconsin Federal Court can rule in Brendan’s favor.

Daniel B. Rodriguez: And is that also true if and when the case goes to appeal, so if it goes up to the Federal Appellate Court, is the Federal Appellate Court too required under habeas doctrine to defer to the judgments of the State Courts?

Laura Nirider: Yes. Again, the Federal Courts are bound to defer to the State Courts, yes.

Daniel B. Rodriguez: So this is also maybe along the lines of the procedural posture of the case, but really to try to understand, particularly for our listeners why do the Federal Courts have to bother considering these cases. Laura you mentioned the Fifth Amendment. Can you tell us a little bit about the context of the Fifth Amendment of the United States Constitution, which obviously bears on the interrogation part of this case?

Laura Nirider: Well, of course under the Fifth Amendment we all have a right against involuntary or forced self-incrimination, and that is a right that comes into play whenever anyone is in the interrogation room of course, because the question then is whether any statement that a person gives was the result of a voluntary exercise of their own freewill or rather was it forced, was it coerced, were they compelled to make that statement in violation of that Fifth Amendment right against self-incrimination.

Daniel B. Rodriguez: Both of you obviously do an enormous and extraordinary amount of work on behalf of youth. Is there anything in the case law in the Fifth Amendment of the US Constitution that apply different standards to youth, interrogations of youth, or self-incrimination in the context of individuals like Brendan Dassey, young people?

Steven Drizin: There is. Prior to 2011 there was case law in the late 40s and early 1960s that did require different standards when you apply the totality of the circumstances test to determine whether a juvenile’s confession is voluntary.

Courts were directed to take special care in reviewing juvenile confessions, they were directed to see whether or not there was an attorney or a parent present, and there was a general understanding that tactics which may be perfectly legitimate when applied to adults may be deemed coercive when applied to children, 14-year-olds and 15-year-olds.

That case law lay quiet for about 40 years in the post-Miranda era, until we helped to resurrect it in 2011 in a case called J.D.B. v. North Carolina. Our center got involved in that case. We wrote an amicus brief in that case. The court cited our amicus brief and it created a new doctrine, if you will, that reinforced the cases from the 40s and 50s and instructed courts to take special care when juveniles are being interrogated.

Daniel B. Rodriguez: Just to follow up on that, and again, for our listeners that have seen the “Making a Murderer” documentary, you know that sadly Brendan in addition to being young at the time he was interrogated was of limited cognitive abilities, an issue that was raised in trial and I suspect also on appeal. So again, just looking at the case law, have the courts looked perhaps with extra scrutiny on interrogations of young people who might be in a, if I can say that, a similar sort of intellectual position as Mr. Dassey?

(00:09:52)

Steven Drizin: Yes, I would say the combination of youth and low IQ or other types of learning disabilities are two factors that courts do look at very seriously when analyzing whether or not a juvenile is capable of knowingly and intelligently waiving his Miranda warnings and whether or not his confession is voluntary.

Daniel B. Rodriguez: Okay. I want to come back to the interrogations in the context of the wrongful conviction. Before I do that, actually Laura, you mentioned the two claims and to focus for a couple of minutes on the representation. So again, for those of you who haven’t seen the “Making a Murderer” documentary, Mr. Kachinsky seems to be a character right out of “Fargo”; if you have seen the William Macy character, not to make a light of it, but if you squint a little bit, it looks like the same.

And just speaking as a lawyer and as a viewer, and as you alluded to of course in describing the claims, it’s really quite astonishing what appears to be the conflict of interest and the collusion I think is a word that one of you used in the documentary between Mr. Kachinsky, the lawyer for Brendan Dassey and the lawyers involved of course on behalf of Steven Avery.

So without the experience in the criminal justice system the two of you have, I really want to ask the question, sort of the factual question, how common is it that two lawyers in the context, there have been many cases involving codefendants, in this particular case are involved in the kind of collusion that Len Kachinsky was seems obviously in this particular case. To use a phrase from our constitutional law seems to shock the conscience sort of how this unfolded. Is this a common circumstance?

Steven Drizin: Well, I guess because I am older I will answer that question first, but I have never seen anything like this in over 30 years as a practicing lawyer. What happened here boggles the mind, because not only did Mr. Kachinsky sort of lay down and allow his client to be interviewed by detectives without his being present, but he actively cooperated with the prosecution and used his investigator to coerce yet another confession from Brendan.

Daniel B. Rodriguez: That’s the O’Reilly —

Steven Drizin: O’Kelly, Michael O’Kelly to essentially soften Brendan up for the investigators during that interview where Mr. Kachinsky did not show up, and I have never seen anything like it. It is a complete abandonment of one’s duty to one’s client. And it’s — I have never seen anything even close to it in 30 years.

When we got that video of the O’Kelly interview of Brendan, which occurred right after he had lost his motion to suppress at a time when both Kachinsky and O’Kelly knew Brendan would be at his most vulnerable, we fell off our chairs. I mean, to have one’s own investigator use tactics that are as coercive, if not more coercive, than the actual detectives in this case just blew us away.

Daniel B. Rodriguez: Would it have made any difference if the mother I guess of Brendan had completely agreed to the interrogation without the lawyer present; I understand that those are not the factual context of the case, but just to understand what the limits of a lawyer’s duties might be in that particular case, would that have made a difference?

Steven Drizin: No, because our effort at the Center on Wrongful Convictions of Youth is in part designed to show that parents cannot substitute as advocates for children, lawyers are needed. Parents come to the table with all kinds of different conflicts of interest. Many parents don’t understand the situation their child was in. They are often co-opted by the police into thinking that cooperation will bring leniency. And while they should have some say in what happens to their children, when the doors of that interrogation room are closed, they often do more harm than good for their kids during interrogations. That’s why attorneys are absolutely critical here.

Daniel B. Rodriguez: Was it any solace or any relief that at some point in the proceedings Brendan was successful, of course on advice, to remove Len Kachinsky from the case? I understand that there had been all these problems leading up to that, but did that make it a little better, you might say, than it would have otherwise been.

Laura Nirider: Well, that prevented the problem from continuing, but it did not remedy the problem that had already occurred, which was this egregious breach of the duty of loyalty by attorney Kachinsky, and you can see ramifications from the breach of that duty of loyalty playing out at Brendan’s trial.

Because what happened during that interrogation that attorney Kachinsky arranged, that attorney Kachinsky failed to attend, and that attorney Kachinsky softened his own client up for was that the police officers told Brendan, aha, here is what you need to do Brendan. You need to call your mother over the prison telephones, which of course all those calls are recorded, and you need to confess to her. And Brendan sitting there, without the advice of counsel, 16 years old says, okay, I will do just that.

(00:14:58)

And he calls up his mother and he tells his mom I did some of it, and that recording was introduced at Brendan’s trial, along with his initial confession to police. And in fact, that recording is what the State emphasized during closing arguments. It was a big part of what contributed to Brendan’s conviction, and it would have never come about if attorney Kachinsky had observed his basic duty of loyalty.

Steven Drizin: And Brendan’s attorneys, when we talked to them, they said they had no answer for that phone call. One of the reasons why they had no answer is because Len Kachinsky did not turn over all the contents of his files to Brendan’s attorneys. So they never got that video of Michael O’Kelly grilling Brendan the night before that interrogation.

So not only did he violate his duty of loyalty by setting his own client up, the violation continued when he did not turn over the full contents of his file to Brendan’s subsequent lawyers.

Daniel B. Rodriguez: Forgive me, I am fuzzy about my recollection of constitutional criminal procedure, but that raises — that’s not so-called Brady material, right, because it’s not a material that’s in the hands of the prosecutor, maybe even worse, it’s materials in the hands of defense attorney; is there a case law, I guess Supreme Court case law like Brady v. Maryland but that applies to lawyers representing their clients?

Steven Drizin: There is.

Dan Rodriguez: Duties, I guess, in terms of disclosure of that information.

Steven Drizin: Yeah, there is and it is a part of our duty of loyalty claim that we are alleging in our habeas corpus petition. So there are claims of ineffective assistance of counsel that could easily have been brought against Len Kachinsky, those claims were difficult when brought against Brendan’s subsequent attorneys.

We were arguing that they were unable to do their job effectively because they weren’t given all the information they needed to do it.

Dan Rodriguez: Let me ask a question that’s a little bit in the weeds on the litigation but these are all important because they are facts that bare of course on the resolution of this case. Suppose you prevail on the ineffective assistance of counsel claim and the decision of the State of Wisconsin is to retry Brendan Dassey; my understanding is, it doesn’t follow, let’s suppose you prevail on that claim but do not prevail on the duty of loyalty claim, is it still conceivable that the State on a retrial could introduce that confession, not the O’Kelly interrogation but the actual confession?

Steven Drizin: Yes, it is. I think we would get another shot at moving the suppress’ confession. One of our claims against Mr. Kachinsky is that his collusion, if you will, with the prosecution may have led him not to aggressively and jealously litigate Brendan’s motion to suppress. So I think we will get another shot at excluding it, but I think if it does come in, Laura and I are better equipped and better prepared to attack it if this case goes to trial.

Dan Rodriguez: So let me ask you to do what we’re obviously trying to do as lawyers, which is to look at this case as it were as a devil’s advocate and ask you to look at this through the lens of the prosecution and may be through the lens of the State Criminal Justice System.

So stipulating all that, the confession is very problematic in all of the interrogation techniques just what you talked about, why shouldn’t that be an issue fundamentally for the jury? So again, suppose that you prevail, there is a retrial on all of that, why shouldn’t the jury be able to make an informed analysis with all issues, say the advocacy that you would provide on behalf of Brendan about, it was a terrible interrogation, please use awful techniques, but why shouldn’t that be a judgment that the jury should be able to consider in light of all the weight of the evidence?

Laura Nirider: Well, I would say that unreliability of a confession is often a sign of coercion. When you have somebody in Brendan’s shoes sitting there on that couch in that interrogation room like your viewers saw in the film, who’s just regurgitating information that the officers have fed to him, fact by fact by fact; you have to ask yourself, why is this child doing that?

And the answer is, because his will has been overborne, there’s almost no more effective proof that somebody’s will has been overborne that they are giving what amounts to an involuntary confession, then when you see them simply rolling over and agreeing to whatever incriminating statements the officers are offering.

So when you see that happening, it’s a strong sign of coercion, and like any other piece of evidence that’s been obtained in violation of the Constitution, a confession that’s been obtained through coercion needs to be excluded.

Dan Rodriguez: So it’s really a question of not permitting the jury to draw their own inferences from evidence that is truly bad or tainted. Would it be a second-best though to at least be able to advocate on behalf of not excluding that evidence but of urging the jury, the fact finder disregard that evidence, would in essence you’d be making your argument just you made it now, enclosing and in cross-examination to try to do that or guess I’m getting this question a long-winded way, isn’t that enough basically to allow these issues to be litigated in front of fact finders?

(00:20:03)

Steven Drizin: I don’t believe it’s enough, and the reason I don’t believe it’s enough, is because in cases involving proven wrongful convictions of defendants who went to trial, juries were unable to accept arguments by counsel that the confessions were unreliable. And the reason for that is, is the mere act of confessing itself is so powerful to juries that they don’t get into the weeds of the confessions.

Now there are ways to deconstruct confessions through good lawyering that can help them understand the phenomenon of how a false confession is created, but I believe that jurors need expert testimony to explain to them that false confessions exist and that the circumstances under which those confessions exist and then let them judge from the facts that are presented before them; whether those circumstances apply in a particular case.

Daniel B. Rodriguez: One other question about the trial, obviously you’d probably be reluctant to second-guess the lawyering on behalf of Brendan in trial, do you think it was a mistake that he took the stand, do you think if he hadn’t taken the stand in the case the verdict would have come out differently?

Steven Drizin: It’s a really good question. I don’t know that I would say it was a mistake that he took the stand. I think that given the way these lawyers litigated the case, they were in courtroom, they were able to read the jury, my guess is that they called Brendan as sort of a last desperate effort, had we litigated the case, had we put on an expert witness, had we deconstructed the confession systematically like we have done in our papers, maybe it wouldn’t have been necessary to call Brendan, but I don’t fault these lawyers for calling Brendan. In the context of the way they litigated the case that was a judgment call that they had to make in the time.

Daniel B. Rodriguez: Let me take a step back, the lens back from the case itself and ask a question that I am sure is on the minds of the viewers of this documentary, which is how widespread a problem is this? Should the viewers watch a documentary like this and say, that’s just awful, thank God it’s rare. How many circumstances can there be where their interrogation technique is utilized and folks confess in these contacts? Both of you have spent so much of your careers, ongoing careers in the context of wrongful confessions, how common a problem is it?

Laura Nirider: Well, the answer is that it is a far more common problem than it should be. What we know from the past really 15-20 years of studying wrongful convictions; wrongful convictions that have been proven by DNA evidence is that about a quarter or so of all known wrongful convictions are attributable to false confessions. And what we also know is that kids, children like Brendan are particularly vulnerable in the interrogation room because of the way in which their brains are developing, typical traits of adolescence, spontaneity, not thinking through consequences, susceptibility and vulnerability to pressure, these are classic traits that teenagers everywhere have.

And those are exactly the same traits that of course when you bring that teenager into the interrogation room and subject him or her to the kinds of interrogation pressures that are designed for much older adults, really seasoned adult criminals, you’ll get a child who starts to think to himself, well, gosh, maybe it really isn’t my best interests to just go along with what these folks are telling me to say. Maybe I will be able to fix it all later. I just want to get out of this room, I am just going to agree for now to what they’re saying.

And we see that happening around the country, more-and-more of these cases are popping up sort of on a daily basis as people are becoming more-and-more aware of this problem.

Daniel B. Rodriguez: And you’re becoming aware of them because clients or lawyers are reaching out to Center on Wrongful Convictions of Youth and other organizations in the Innocence Network, is that right?

Laura Nirider: That’s exactly right. Yes, we get reached out to by attorneys across the country at the Center on Wrongful Convictions of Youth, organizations like the National Association of Criminal Defense Lawyers, The Innocence Network, all kinds of groups are interested in learning about false confessions, are interested in learning about the ways in which juveniles are particularly susceptible. So we’ve been fortunate to be able to serve as a resource for those groups.

Daniel B. Rodriguez: Now you have been asked to come in as in this case fairly late in the process, tragically late in the process, given what’s happened before, so looking earlier in the process, in terms of the work that’s been done to improve police interrogation techniques, what is your organization doing and others in the larger network to really improve the process, because I take it some of this issue may be about police officers and law enforcement needing to understand better, just what you’re describing and understand how to be involved in interrogation in a more compassionate way, but a way that meets the needs of law enforcement as well.

Laura Nirider: Well, I think you are exactly right that all of us ultimately want the same result here. We all want the guilty person to be in that courtroom standing trial and we all want the innocent person to be out on the street with his or her family living a free life.

(00:24:46)

And one of the things that we have done at the Center on Wrongful Convictions of Youth that I am most proud of frankly is we’ve partnered with the International Association of Chiefs of Police to publish the first ever juvenile interrogation’s protocol and this is something that that organization, which is based in Virginia, has distributed to police executives all around the country. This is a new protocol that’s geared specifically at preventing kids from giving false confessions during interrogations and it provides officers with a host of different tactics that will still ensure that they’re able to get to the truth while avoiding false confessions.

Steven Drizin: And the other thing that we are doing is not only focusing on police officers, but we go around the country and train public defenders on how to defend these cases, both coerced and false confession cases involving juveniles, and we also lectured the judges on what they should be looking at when they apply the totality of the circumstances test, to exclude confessions whether a juvenile has knowingly and intelligently waived the random warnings. So we are operating at all different points in the criminal justice system in dealing with the system actors on these issues.

Daniel B. Rodriguez: Well, I’d just ask as a last question other than obviously overturning Brendan Dassey’s conviction. What do you hope that the work that you’re doing, here both legal work involved in this ongoing case, but also the public work that you’re doing as a result of this remarkable documentary — what do you hope will come out of this, what would be the ideal over the course of the next few years?

Laura Nirider: To me the first lesson of making a murderer is that false confessions happen. This is something that jurors are beginning to learn about around the country, something that attorneys are beginning to learn about around the country, but this is an important lesson and we need to understand just why false confessions happen, just what we can do to recognize them, and importantly, what we can do to prevent them from happening?

Steven Drizin: And for me what I want is a greater recognition by the public, by jury members, by judges, by prosecutors, by defense attorneys that when you have a juvenile, a child, a teenager in the box and you are questioning that child, if you use the same tactics that you have used for years with adults, you greatly increase the risk of false confessions and the risk of coerce confessions that which may not be coercive when applied to an adult is coercive when applied to a juvenile, and we need judges to recognize that most of all.

Daniel B. Rodriguez: Well, I want to thank you Laura and Steve for joining me on this podcast, but I particularly want to thank you on behalf of all the listening community for the extraordinary work that you do on behalf of the criminal justice system. For those who might be interested in learning more about the Center on Wrongful Convictions and the Center on Wrongful Convictions of Youth, please visit the Law School’s website and the Bluhm Legal Clinic page.

Thank you for listening, I am Dan Rodriguez signing off from the Northwestern Pritzker School of Law.

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