Brendan Dassey: A conversation with Wicklander-Zulawski

Assembling a formidable Amici Curiae in support of Brendan Dassey, the Juvenile Law Center partnered with Wicklander-Zulawski and Law Professor Brandon Garrett in filing an unprecedented “friend of the court” brief ahead of the February 2017 oral argument in the 7th Circuit Court of Appeals. Contributing expertise in the field of law, adolescent development, social science research and interrogation techniques, the Amici would be oft quoted in the decision to affirm the federal courts grant of habeas relief.

With an en banc majority (4-3) reinstating Brendan’s conviction, the legal roadmap led to the United States Supreme Court where Wicklander-Zulawski joined eminent amicus curiae including independent law enforcement instructors and consultants in support of Dassey’s writ of certiorari.

Worldwide leaders in non-confrontational interviewing techniques, educating law enforcement, academia and legal professionals on interviewing procedures - the expertise of Wicklander-Zulawski would prove influential in helping to inform the COA of the coercive and involuntary nature of the interrogations Brendan endured.

Active in continued support, I discuss Brendan and the interrogation process with Dave Thompson CFI and VP of Operations at Wicklander-Zulawski.

Q: When watching Making a Murderer what was your major takeaway from the interrogations of Brendan Dassey on first viewing?

After “bingeing” on Making a Murderer like most viewers over the course of a couple of days, I immediately felt compelled to get involved in some way, I just was not sure how or to what extent. My immediate takeaway from the interrogations was the impression Brendan did not have the ability to tell his story, but instead was just agreeing to the version somebody else had created. This was unacceptable, unjust and he and his advocates needed as much support as possible.

Q: Please elaborate your thoughts on the two seasoned investigators and the tactics they used.

It is important to recognize that law enforcement professionals have an extremely difficult job in attempting to identify the truth, especially when investigating a violent crime. Rarely will the responsible party voluntarily come forward with an admission of guilt. They are often under pressure from the prosecutor, media, their agency and of course the desire to find justice and closure for the victim and their family.

While we critique the interrogations of Brendan, it would be unfair to vilify the investigators if their intent was to provide justice and closure for the Halbach family in a fair and ethical way. However, there are tactics used within these interrogations that I feel were inappropriate.

Q: As a viewer what response did the interrogations elicit in you?

Frustrated, at so many moments. The fact-feeding and the promises, the apparent lack of concern for Brendan’s vulnerability and the shock of how this “confession” was not highly scrutinized or even rejected by the investigators themselves.

Q: As a professional did the interrogation tactics immediately strike you as coercive.

Coercion is difficult to define, as even the courts cannot seem to provide a line in the sand. I believe the 7th Circuit originally provided a great description of the interrogations with phrases such as “death by a thousand cuts” and “sliding scale of coercion”. I could point out several moments of the interrogations that struck me as coercive, but the most powerful moment for me was Brendan’s immediate recantation of his confession and his state of mind not recognizing that there were serious consequences associated with what he just said. That moment was, and still is, heartbreaking.

Q: What compelled Wicklander-Zulawski to offer their expertise in the fight to free Brendan? How did the relationship form with Brendan’s legal team?

We believe that Wicklander-Zulawski & Associates are considered, among practitioners, as thought-leaders in our industry and know that we have major influence over the way in which investigators are trained across the globe. After discussing Brendan’s interrogations and the surrounding investigation with the WZ team, there was no hesitation that we needed to stand for what we believed in. As a leader, the option to remain silent would have sent the message that we condone and support the interrogation tactics that were used. The integrity of what we do and the importance of educating others on what not to do, was essential in our decision.

Q: REID posits that a suspects non-verbal and verbal responses may indicate guilt? Does the technique at any juncture take into consideration the specific behaviours and vulnerabilities of the interviewee? Or is it a one size fits all process?

We know that misclassifying behavioural cues can lead to confirmation bias and ultimately a false confession and wrongful conviction. Focusing primarily on behavioural cues to “detect deception” is risky, inappropriate and debunked several times over by research studies. The existence of anomalies in both verbal and non-verbal behaviour may indicate anxiety or concern from the subject, but not necessarily indicate guilt. When attempting to recognize the signs of concern or anxiety, it should not be a “one size fits all” process as there are a plethora of variables which may impact a subject’s behavioural reactions.

Q: On assessment of the interrogations, is there a cardinal moment where the investigators clearly offer “promises of leniency”

Similar to my response regarding the moments of “coercion”, it’s hard to specifically provide the tipping point where leniency became overbearing or most apparent to Brendan. Laura Nirider did an excellent job when presenting oral arguments to the 7th Circuit as she described the repetitive “beating of the drum” in regard to the multiple statements made by investigators alternatively suggesting leniency while course correcting Brendan’s own statements. “Honesty will set you free” is one of the hallmark explicit promises made in the interrogation, although the State argues this was said when Brendan was still considered a witness, rather than a suspect.

Q: Do you think courtesy of Frazier v Cupp, the ability of law enforcement to lie, overbears will?

Recently, I was a panellist at a symposium hosted by the Northwestern Law School Journal of Criminal Law and Criminology. On the panel, I had the opportunity to meet The Honorable John C. Sheldon who had published an excellent article in Maine Law review regarding the measurement of “free will of a rational mind” when examining the voluntariness of a confession. His thought-provoking essay takes a much deeper dive into answering this question.

Outside of the obvious unethical interrogation techniques, such as torture, it is difficult to define the moment that psychological techniques actually overbear ones will. However, we know that the false evidence ploy permitted by Frazier v Cupp is a commonality in false confession cases and clearly correlated to the subject’s perception of how they will be perceived in a trial with “evidence” of their guilt. Lying about the existence of evidence is a high-risk tactic that may be the tipping point for an innocent person to agree to false statements.

Wicklander-Zulawski’s involvement and your joining the Amici Curiae alongside The Juvenile Law Center and Professor Brandon Garret at the 7th COA, was celebratory for the thousands of global supporters that believe in Brendan. I quote Laura Nirider from February 14th, 2017.

“I would also like to point out in the Amicus Brief I think it speaks volumes, that the law enforcement interrogation trainers who joined the Amicus Brief say they use this interrogation video as an example of what not to do, that’s how unreasonable the State court decision was in this case, trainers use this video, to show not what to do.”

I also think it speaks to the importance and impact of Wicklander-Zulawski’s involvement that in September at the en banc Judge Rovner references your commentary twice in detail and Laura again speaks of your support.

Q: How does it feel to know that you were ultimately a party to the first victory for Brendan and a vital point of reference and credibility for Brendan’s team during the en banc hearing?

Humbling, inspiring and frustrating.

I first utilized Brendan’s case in a presentation at the International Association of Interviewers “Elite Training Day” with an audience of Certified Forensic Interviewers (CFI). At the time, we had not yet been involved with Brendan’s legal team – but felt compelled to utilize clips from his interrogations to teach investigators “what not to do”. The resounding support and positive feedback we received from CFI’s was a powerful and inspirational moment.

It’s humbling to have had such an impact recognizing the incredible platform that we have. It’s inspiring to see law enforcement professionals embrace the feedback, wanting to learn from this case and are passionate about conducting ethical, thorough investigations to identify the truth.

However, it’s frustrating that with all the support that Brendan has from academics, law enforcement and the supporting amici – he remains incarcerated.

Q: Can you share any thoughts on the majority’s opinion that ultimately upheld Brendan’s wrongful conviction? Any glaring knowledge gaps from any of the judges that took you by surprise?

There is a large gap in our justice system in which judges or juries are not properly educated or informed on the science behind any “forensic” evidence including that of a confession. Well-known academics such as Richard Leo, PhD and Saul Kassin, PhD have been successful in contributing their expert opinions in a variety of cases in effort to educating the respective decision makers. However, not all triers of fact are receptive to expert testimony or the content of an amicus brief. Even though we have countless examples, understanding the phenomena that innocent people may confess to a crime due to psychological coercion is still a difficult concept for people to comprehend.

Q: You then join James Trainum and others in an Amici (Independent Law Enforcement Instructors, Consultants and Specialists in Interrogation Practices) filed in support of the United States Supreme Court taking Brendan’s case. How did that come about? What was the process involved?

James Trainum is an incredible professional and I have the utmost admiration and respect for what he has done in his career and his passion to educate others while standing for what he believes in. We were honoured and proud to support the SCOTUS amicus brief on behalf of law enforcement trainers and practitioners. There were many people involved in the compilation of the brief including the team at Jenner & Block that have always been a powerful firm focused on the promotion of fair and equitable justice.

Q: How has this egregious injustice affected you? How has it affected the teachings of Wicklander-Zulawski and how you train other stakeholders in the system now?

Personally, Brendan’s case has initiated for me a passion into understanding false confessions and other contributors to wrongful convictions. I have had the remarkable opportunity to collaborate with professionals across multiple sectors including the academic community, legal advocates and practitioners all in search of a common goal. Brendan’s case has served as motivation for me to continue to reach “across the aisle” and host conversations with opposing viewpoints in effort to impact and improve the due process and justice system that we were founded upon.

WZ has always evolved in their teachings since 1982 but has seen significant changes over the last few years in part to Brendan’s case. There is now a dedicated portion of our Criminal Interviewing seminars focused on false confessions in which we utilize clips from Brendan’s interrogation to illustrate some of the contributors. We also have a heavier focus on the dangers of misclassifying behavioural cues as “deceptive” resulting in confirmation bias of the interviewer. There is a multitude of ongoing research and partnerships with the academic community that we are consistently utilizing to implement in our training programs.

Q: If you could be party to, or initiate legislation in the area of juvenile interrogations can you give three main areas you would focus on and advocate for.

1. Mandatory Electronic Recording – WZ has been recording their interviews or interrogations since inception in 1982 and we continue to do so today. Recording an interview does not eliminate the possibility of a false confession, but it does have several other benefits that may mitigate that risk. Ultimately, we would not even be discussing Brendan’s case if the interrogations were not recorded and available for us to understand what caused him to “confess”.

2. Risk Assessment – Research has shown us that juveniles have not fully developed in their cognitive abilities and decision-making process. Investigators need to be more educated on the susceptibility of juveniles to specific tactics they may use and understand other qualifying risks. The cognitive ability, intelligence level, social awareness and prior history with law enforcement are just a few areas that should be considered when evaluating the susceptibility of the interview subject.

3. Let’s stop lying to kids – As stated earlier, the false evidence ploy is a commonality in false confession cases. Repetitive claims of false evidence to a vulnerable subject provides the ideal path to obtain a false “agreement” to the existence of this evidence and ultimately a confession.

Q: What words of support would you give to Brendan as his fight for freedom continues?

You’re not alone.

There is tremendous support out there working daily to provide justice for both Brendan and the Halbach family. I know that his faith in his advocates and his positivity is contagious and inspirational to those working on his behalf. I think it is remarkable for Brendan to know that his story has impacted people across the globe, including myself, and has driven me to become an agent for change.

"I’m inspired to make a difference, and I thank Brendan and the team at WZ for that opportunity."