SIXTH HOUR: The Wrongful Conviction of Brendan Dassey

“Taking the Alford Plea hurt my soul more than being found guilty in 1994 did," shares Jason Baldwin, a man who is so much more than a member of the West Memphis 3. “When they forced me to take the Alford Plea something in me broke…” The presumption of innocence and guilt beyond a reasonable doubt is seemingly reserved for a select few. For many flowing through the US system of [in]justice particularly children like 16-year-old Jason Baldwin and 16-year-old Brendan Dassey, the presumption of innocence is nothing more than a fallacy, a notion of intent not delivered. Contending with forces that conspire to convict, targeted by unmerciful prosecutors and defended by bad state actors - the truth of their innocence becomes a casualty of chaos. Jason Baldwin joins me on the Sixth Hour to discuss his life pre and post-the-lived and survived experience of his wrongful conviction, Brendan Dassey, and his role as co-founder of innocence org Proclaim Justice.         Music reproduced with permission. Song: Bad Man Artist: Sarah and the Underground Writer: Sarah Marie Dillard   “One of the first songs written after 'Making a Murderer' was released, 'Bad Man' by Sarah & The Underground is an unofficial anthem of the fight to free Brendan Dassey." - Steven Drizin, Legal Defense for Brendan Dassey

It's lawful for police to use a variety of psychological techniques to induce suspects to confess including lying about evidence, accusatory questioning, and stomping their size tens up the nine steps of the REID technique because well, that's what they've been taught. But times are a'changing. In this episode of the Sixth Hour, my guests provide alternative, strategic interrogation practices grounded in science and rooted in humanity, what a revolution right? Join me as we step into the interrogation room of Brendan Dassey and others with Dave Thompson, Partner and President of Wicklander Zulawski, a world-leading interrogation training organisation, Matt Jones a detective and Director at Evocavi Group which provides strategic investigative interview training that is grounded in decades of social science research. And retired homicide detective and author James Trainum who now reviews, consults, trains, and instructs on wrongful conviction cases, specialising in the field of false confessions.        Music reproduced with permission. Song: You Know They Lie Artist: Big Little Lions, Jack Stafford Licensed by: The Orchard Music (on behalf of The Independent Record Company); Songtrust Wicklander Zulawski: https://www.w-z.com/ Evocavi Group: https://www.evocavigroup.com/ James Trainum: https://rowman.com/ISBN/9781538120033/How-the-Police-Generate-False-Confessions-An-Inside-Look-at-the-Interrogation-Room

Did you walk past, or did you stop? Were you called to act – to advocate - to just do something, because doing nothing felt like a crime? When Making a Murderer was unleashed on an unsuspecting seasonal audience in the December of 2015, it triggered a gut punch for millions of people and birthed a community of criminal justice activists that continues to thrive five-plus years on. On this episode of the Sixth Hour, I'm joined by Stacey Seabrook, Paul Capaldi, and Mark Hoddinott to discuss the role of advocate and what that entails in the context of the wrongful conviction of Brendan Dassey and his uncle Steven Avery.       Music reproduced with permission.  There's something going on. As justice slowly disappears. Artist: Stacey Seabrook  

“I'll be honest if somebody waives their Miranda rights, and we know how to get people to waive their Miranda rights – we know how to manipulate the hell out of them …” shares former homicide detective, author, reformer, and wrongful conviction expert James Trainum. “You could almost put pins under their fingernails and it's [confession] still voluntary because of that paper that they sign,” he adds. Joining the Sixth Hour, James Trainum author of How Police Generate Confessions: An Inside Look at the Interrogation Room, shares how his life as a homicide detective in Washington D.C. was transformed after eliciting a false confession from a suspect after a 16-hour interrogation - and informed and progressive insights on law enforcement, the Brendan Dassey case and modern interrogation practices in the United States.

When the federal judges that made up the en banc majority found that while there were factors that supported finding Brendan Dassey’s confession involuntary; that his confession was riddled with inconsistencies and that interrogators did offer up broad assurances that honesty would be rewarded with leniency, the slim majority determined that this was not enough to uphold what four other federal judges found to be a “profound miscarriage of justice.” For the majority climbing the insurmountable wall that AEDPA built took a judicial courage they lacked. In this episode of the Sixth Hour, I’m joined by Professor Brandon Garrett, a distinguished Professor of Law and constitutional scholar prolific in the study of the innocent exonerated by DNA testing whose empirical research on the criminal justice system includes false confessions, forensics, eyewitness testimony and so much more. Join us for a masterclass in AEDPA.

“It was rumoured that there were people in the department of justice here saying, ‘leave it alone, don’t take it further,’ there are people who were offended but you know we got to have our win,” recalls Professor Michele LaVigne. As Brendan’s post-conviction appeal steamrolled its way through the federal courts the Wisconsin legal fraternity was as split as the en banc majority who had abandoned their call to conscience. In this episode I am joined by Professor LaVigne Clinical Professor of Law Emeritus and co-author of the herculean analysis; Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance to discuss the indefensible misconduct of Len Kachinsky and how Miranda intersects with juveniles with speech and language impairments like Brendan Dassey. To read the analysis: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3379727

“Because we could all watch it and we could see it and we could see that slow transformation from no to yes, it just seemed to typify in a way everything that is wrong with police interrogation of children in this country,” said Professor Marsha Levick. As Brendan Dassey’s case hurled through the federal appellate court system, a chorus of eminent voices joined the fight for justice as a day of reckoning with the United States Supreme Court loomed. Battling false promises of special care and the immovable stain of judicial ignorance, a coalition of the country’s brightest minds including The Juvenile Law Center staged a learned intervention. In this episode, I discuss Brendan, the amicus journey, juvenile law decisions that have reshaped the landscape of juvenile justice in the US, and the UN Convention of the Rights of the Child with Professor Marsha Levick, Chief Legal Officer for the Juvenile Law Center.  

How culpable was the media in the wrongful conviction of Brendan Dassey? Did the infamous March 2nd press conference directed by DA Kratz prejudice, not just a potential jury pool but the entire state of Wisconsin? Destroying Brendan Dassey’s presumption of innocence with every word uttered Kratz tightened the shackles on young Brendan’s wrists and ankles as future fact finders and the local community recoiled in horror. With his freedom ebbing away Brendan grappled with his lack of comprehension and apathetic legal representation as he embarked on the fight for his life. In this installment of the Sixth Hour, we join Dean Strang, 2007 trial counsel for Steven Avery in the courtrooms of Wisconsin for a masterclass in the humane.

The trial judge says, “so Miranda warnings are not an issue, so, mirandizing is not an issue, and neither is the custodial or non-custodial … okay moving on.” Now it’s in the record, he has sealed the fate. Brendan has had some amazing attorneys work on his case, but I don’t care how good they are that single interchange made their job almost insurmountable, says Dean Brian Gallini. In the first episode of season two, Dean Brian Gallini of Willamette University College of Law, a leading scholar in criminal law and procedure takes us on a journey deep into the weeds of the errors at the heart of Brendan Dassey’s wrongful conviction. From Miranda to REID, to ineffective assistance of counsel and the irreversible failings of Kachinsky. Listen in as Dean Gallini brings Brendan Dassey into the classroom in his course Unmaking a Murderer where he profiles Brendan’s case to help inform the next generation of defense attorneys. 

This is the story of the wrongful conviction of Brendan Dassey. Confined to a system that provides little more than a modicum of due process for the children caught in the ebb and flow of flawed investigations, judicial ignorance, and spurious interrogation techniques, Brendan readies himself for his 15th year of wrongful incarceration as COVID-19 becomes another prong to the cruel and unusual punishment he continues to endure. Join me for season two where once again I step back in time to explore and revisit the influences at the heart of this profound miscarriage of justice.

Was it small-town judicial ignorance or a deceptive ploy to dupe the jury? A jury fattened on media soundbites, unethical press conferences, social bias, and pizza. There was conveniently an absence of expert testimony, and a very special prosecutor indeed! But Brendan's story can be changed, his path forward rewritten. The fight for justice and freedom must continue because the truth alone will not bring Brendan home. 

"In a case where the person is genuinely innocent, it's not mercy it's straight-up justice. In a case like Brendan's, you can make the case for his release either on mercy or justice," shares Professor Mark Osler. October 2nd, 2019, Brendan Dassey's legal team filed a petition for clemency with Governor Tony Evers to grant Brendan a pardon or commute his sentence to time served. A coalition of 250 voices signed an open letter supporting the petition, among them Professor Osler, a former federal prosecutor, a law professor, and a national expert on clemency. Professor Osler joins the Sixth Hour to discuss clemency in a modern world, political timidity, and why Brendan Dassey deserves relief from a wrongful conviction via an executive grant of clemency. 

"We are so cruel, where we pretend to care so deeply about the rule of law - that we let this go through. That somewhere there wasn't a responsible adult saying that's enough, that is enough," exclaims Professor Michele LaVigne. A distinguished clinical professor of law, a leader in the law and co-author of Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance. Professor Lavigne joins the Sixth Hour to peel back the layers of Brendan's disabilities and calls into question the legitimacy of the criminal justice system and the undisciplined behaviour of law enforcement when dealing with a child with obvious cognitive challenges including pronounced speech and language impairments. 

"He believes you did it, Brendan," said Brendan's mother Barb. Brendan Dassey knew nothing of his Sixth Amendment right to effective counsel or that it should entail zealous advocacy - all Brendan knew was that his attorney Len Kachinsky thought him guilty ... and liked cats. Orchestrating his own downfall as he tried to turn Brendan as states witness, Kachinsky was removed and replaced by the flawed Fremgen and Edelstein. From colluding with the prosecution to a damaging suggestibility defence to Strickland and Sullivan, Wisconsin defence attorney and author, Michael Cicchini joins the Sixth Hour to unpack the legal complexity involved in the defence of Brendan Dassey. 

We all have a breaking point. However, for 16-year-old Brendan Dassey, all that was needed was praise, feigned parental concern, and susceptibility to an interrogation technique used to elicit confessions from seasoned adult criminals. The mix was devastating for Brendan.  As the first false confession expert to testify on Brendan's behalf in 2010, Dr. Richard Leo joins the Sixth Hour to illustrate the errors inherent in the March 1st statement that formed the singular piece of evidence used by the state of Wisconsin to wrongfully convict Brendan Dassey.

"Let's stop lying, especially to kids in our interrogations and interviews. It seems so contradictory that we would lie to get to the truth," says Dave Thompson, Partner and VP of Operations for Wicklander Zulawski. Dave joins the Sixth Hour to unpack the interrogations leading up to and including, the March 1st statement that sets in motion the wrongful conviction of Brendan Dassey.

When Making a Murderer focused on the plight of Brendan Dassey, who appeared not culpable for anything more than naivete about the processes of the Wisconsin legal system, it was then at its most poignant and its most disturbing.  

This is the story of the wrongful conviction of Brendan Dassey. When Brendan Dassey uttered “I’m really stupid Mum, I can’t help it” this was not the failure of a vulnerable teenager but the exposure of the systemic failings of Wisconsin’s criminal justice system. This season join me as I step back into Manitowoc 2005 and explore and re-examine the factors at the heart of this profound miscarriage of justice.