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The popular Netflix documentary 'Making a Murderer' told a compelling story with several unexpected twists. One that particularly shocked and discomfited many Americans was seeing law enforcement professionals extract a false confession from a 16-year-old boy with borderline intellectual disability.
Brendan Dassey’s “confession,” which has become widely known as a textbook example of an involuntary confession, is now before the U.S. Supreme Court. The justices should review the case and reaffirm the importance of carefully evaluating confessions, especially when it involves our society’s most vulnerable individuals.
Dassey confessed to murdering a woman, in association with his uncle, after being questioned by police four times over a period of 48 hours. The federal judge who heard his habeas petition, and then two judges from the Seventh Circuit Court of Appeals, all agreed the confession was involuntary. Then, in December, the entire Seventh Circuit reversed itself in a closely split 4-3 decision, concluding that there was not “physical coercion or intimidation.” The dissenting judges wrote that it was “a profound miscarriage of justice” to sentence a juvenile to life in prison based on an involuntary confession.
Getting a false confession from Brendan Dassey
I would be the last to suggest that a criminal case should be tried
in the news media, but the Netflix documentary got it right. A
vulnerable, intellectually disabled juvenile is unlikely to accurately
or voluntarily confess. In studies of DNA exonerations, I have found
that juveniles accounted for a third of all false confessions and
another third were intellectually disabled or mentally ill. Juveniles
are extremely vulnerable to pressure. People who are intellectually
disabled can struggle to understand the consequences of their actions
and are similarly vulnerable.
Dassey’s case follows the script of false confessions. Almost without exception, in DNA exoneration cases, false confession statements were contaminated with details that supposedly only the culprit could have known. When Dassey got the answers wrong during the interrogation, police corrected him and gave him answers that they wanted. They told him key facts — including the central piece of physical evidence they had gathered: that the victim had been shot in the head.
Here is the exchange at that crucial moment:
Officer: What else happens to her in her head? It’s extremely, extremely important you tell us this, for us to believe you. Come on Brendan, what else? (pause) We know, we just need you to tell us.
Brendan: That’s all I can remember.
Officer: All right, I’m just gonna come out and ask you. Who shot her in the head?
Brendan: He did.
Officer: Then why didn’t you tell us that?
Brendan: ’Cause I couldn’t think of it.
Not only did officers contaminate the interrogation by using leading questions to tell Dassey critical information they knew, but they repeatedly told Dassey that they would help him and that he would be treated leniently if he confessed. Tellingly, Dassey asked police when he would be returned to school, after he had just confessed to murder.
Evaluating juvenile confessions
The Seventh Circuit’s ruling flies in the face of decades of law emphasizing that courts must take “special care” in evaluating the confessions of juveniles. The Supreme Court has long emphasized that “admissions and confessions of juveniles require special caution.”
Both state and lower federal courts are guilty of failing to take voluntariness seriously. High-profile rulings have affirmed now-infamous false confessions because they failed to properly analyze whether they were voluntary. Some have been Supreme Court cases.
Take the case of Henry McCollum, whose confession was found voluntary in a brief statement by the North Carolina Supreme Court. Justice Harry Blackmun dissented when the court refused to hear the case, and insisted that although the crime was “abhorrent,” there was “more to the story.” Nineteen-year-old McCollum had “an IQ between 60 and 69 and the mental age of a 9-year-old. He reads on a second-grade level.”
In 2014, DNA tests conducted on the evidence by the North Carolina Innocence Inquiry Commission cleared McCollum and his intellectually disabled and sixteen-year-old brother Leon Brown, and instead implicated a man who had committed a similar rape and murder in the same town. As Justice Stephen Breyer has since noted, had McCollum been executed following the denial of appeal, those DNA tests would never have been conducted. His exoneration, over 20 years later, would never have occurred.
McCollum is one of many innocent people who have had judges deny relief on voluntariness claims, wrongly calling false confessions reliable. Such rulings happen over and over again in DNA exoneration cases. Those exonerations provide a powerful caution that courts should not only examine the voluntariness and reliability of vulnerable people’s confessions, but that courts must do so quite carefully.
Hopefully, the Supreme Court has learned from cases like McCollum’s and will use the Dassey case as an opportunity to reaffirm that the Constitution requires special care when vulnerable people are interrogated. The Constitution, when taken seriously, offers protection against coerced and false confessions.
By Brandon Garrett
9 June 2018
Brandon Garrett is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia School of Law. He is the author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice and Convicting the Innocent: Where Criminal Prosecutions Go Wrong. He authored an amicus brief in the Dassey case, in support of U.S. Supreme Court review.