The Sunday Dog: I Confess…the Courts are Wrong

On Friday, a panel of the United States Court of Appeals for the Seventh Circuit denied a new trial for Brendan Dassey, a juvenile defendant accused of aiding in the murder and rape of a Wisconsin woman. Dassey, the subject of the Netflix series “Making of a Murderer,” was sixteen when police interrogated him without affording Dassey the assistance of an adult or an attorney present.

A primary contention of Dassey’s conviction and a focus of the acclaimed Netflix series was that police coerced the juvenile’s alleged ‘confession’ and overbore his diminished capacity to understand questioning. The tactics used by police interrogators during the teen’s questioning resembled a guessing game during which detectives posed scenarios to Dassey until they landed on one that the boy responded to agreeably.

Brendan Dassey’s IQ is reported to be in the range of 69-73, with 70 generally being the nominal minimum for competence. Additionally, criminal psychologists who viewed tapes of the police interrogation criticized Dassey’s interrogators for their faulted style. Posing detailed questions in long sessions and relying on a defendant’s single word answers in response has led to many so-called false confessions and resulted in the convictions of innocent men, women, and children.

1 in 8 exonerations involve a ‘false confession’ obtained by oppressive police tactics. In homicide cases the rate is even higher.

The chief justice of the court of appeals panel voiced her opinion in a strongly worded dissent, calling the 4-3 ruling a “travesty of justice.” Two other judges joined Chief Judge Diane Wood in criticizing the majority. They wrote that Brendan Dassey’s “confession was not voluntary and his conviction should not stand, and yet an impaired teenager has been sentenced to life in prison.” The dissenting judges called the juvenile’s conviction a “miscarriage of justice,” which is usually the threshold question for appellate courts.

That three appellate judges have found a miscarriage of justice should logically lead to further review in the Supreme Court of the United States. Dassey’s attorneys will likely seek a writ of certiorari to the nation’s highest court, but his chances of finding relief among a court swayed by recent appointee Neil Gorsuch are slim.

When the seventh circuit originally overturned Dassey’s conviction, we addressed the case and applauded the courts for noticing the unfair interrogation techniques used by police. We also recognized the important role the Netflix producers played in finding justice for Brendan Dassey in the context of the Constitution of the United States.

With an abundance of contemporaneous verbatim recordings of proceedings and hours of interrogation, the original panel of the court had solid evidence to rely on in their initial decision. We noted the need for a nationwide shift in policy that would require police interrogators in every jurisdiction to employ start-to-finish recordings of every police encounter, interaction, and questioning. However, the court of appeal’s decision Friday negates the value of any evidence supporting the accused.

Police interrogations are less about finding truth and more about closing cases.

Constitutional protections are fading quickly — in both the context of the criminally accused and other civil matters. If we as a nation cannot rely on our courts to protect the rights of the people over the policies of the police and government, than we have lost the fundamental concern that the founders bestowed up the country.

Dassey’s case ended up before the en banc review of the seventh circuit because of an appeal by prosecutors who were unhappy with their conviction being in jeopardy. Had the state not had a right of appeal, Brendan Dassey would have received the justice he deserved. Instead, the prosecution has essentially been given another bite at the poisoned apple.

The only way to protect criminal defendants — and juveniles like Brendan Dassey sentenced to life in prison — from the abusive opinions of ‘tough on crime’ courts, is to limit the number of state-initiated appeals. Prosecutors should be barred from appeal in cases where a lower court has determined a true miscarriage of justice and constitutional violation such as Dassey’s.

With as many Americans with a criminal record as with a college degree, the time has come for courts that are oriented to the rights of the accused as opposed those whose mission it is to add to our overburdened and ineffective prison system. A 16-year-old should not face the oppressive and overbearing tactics of police alone and if a court cannot protect our nation’s children’s rights, then we cannot expect that it will protect ours.

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