Brendan Dassey's Lawyers Seek Clemency: Seth Waxman in Conversation

Transcription of interview. Lake Effect's Joy Powers speaking with Seth Waxman, former Solicitor General for the U.S. and a member of Brendan Dassey's legal team - WUWM Milwaukee's NPR - Milwaukee Public Media is a service of UW-Milwaukee's College of Letters & Science.

JP: "Thanks for tuning into today I’m Joy Powers, in 2015 the documentary series Making a Murderer reached millions of viewers around the world. The series tells the story of Steven Avery and his nephew Brendan Dassey both convicted of murdering Teresa Halbach in Manitowoc County. Dassey was just a teenager when he was sentenced to life in prison and the series raises a lot of questions about Dassey’s conviction which largely hinged on his confession. A confession that his legal team says was coerced. Seth Waxman is a member of that legal team; Waxman is also the former Solicitor General for the United States and he joins me now in studio. Seth thank you so much for joining us here on Lake Effect."

I’m so honoured to be part of the Lake Effect.

JP: "I was talking to a lot of people about actually this upcoming interview and they went ‘oh I don’t really know anything about this case,’ so just to really just start here can you give us kind of a timeline of what’s happened in this case."

I can try. I will say that I’ve been involved in representing Brendan Dassey for about two years, maybe a little under two years. I was approached by a friend of mine, he called me in my office and he said Brendan Dassey’s lawyers have asked me to see whether you would be willing to help them with a petition to the Supreme Court for Brendan and I said ‘whose Brendan Dassey’ and he responded ‘oh he’s the juvenile in Making a Murderer.’ He explained to me it was a hit TV show that tens on tens of millions of people have watched and apparently everybody knew except me. And I asked him to send me the briefs in the case, the opinions in the case and in particular the transcript of the final interrogation session and I spent three hours when I should have been preparing for another case reading through it and I sort of felt like my blood ran cold reading this thing and realising what had happened to this kid and I called him back and said I will help in any way I can.

So what I know about how this all got started, is very much third hand, I deliberately did not watch the television show until I had finished preparing and filing the petition in the Supreme Court, cause I wanted what I said to the Supreme Court to be based on the law and the record in the case and nothing else. I then started to watch the show with my wife and after I think it was either three or four sessions, I just couldn’t watch it anymore, I mean this issue for Brendan had become so personal for me, it was just too painful to watch what the show was telling.

You know essentially there was a horrible murder of a young woman in a rural county in Wisconsin, the premise of the show is that the accused was somebody who had previously served many, many years in prison for an assault, an aggravated rape that it turns out he didn’t commit. There had been a documentary film crew, two women from New York who would come out to do a documentary about that wrongful conviction and a subsequent civil suit that this man Steven Avery had brought against the local sheriff’s office and the local prosecutor based on evidence that was revealed that they in fact had a lead on the person who was actually was - subsequently confessed to being the rapist. But didn’t follow it up because there was a local grudge and it just so happened that they were done filming and were packing up to go back to New York when this man Steven Avery was arrested for the mutilation and murder of Teresa Halbach.

Brendan Dassey was a nephew of Steven Avery, he was 16 years old at the time, he is borderline intellectually disabled, he was in special education classes and had been tested. Tests had shown that his language comprehension skills were at the lowest percentile, which means that 99 out of every 100 kids could understand things and communicate better than he could. He was not initially a suspect in the case but several months after Steven Avery has been arrested and charges had been filed against him, the police said that they had heard from a relative of Mr. Avery and Brendan Dassey that Brendan had lost a lot of weight, that he had been crying a lot since the arrest of his Uncle and the police decided to interrogate him. And over the course of 48 hours did four two-on-one interrogations of him without a parent, without a lawyer – the last one was in the police station and it was three hour videotaped interrogation session in which the police after patting him on the knee and telling him that they were police officers but they were also fathers and they were really talking to him as a friend, preceded to ask this disabled juvenile 1,500 questions in three hours. Once he agreed with a highly inculpatory account of murder he then asked whether he could go back to school in time for the sixth hour because he had a project to prepare and they then said well 'we’re police officers and you can’t go back to school' and he said 'well can I go tomorrow,' they said no – all on video tape and then his mother came in to talk to him and he immediately told his mother he hadn’t done anything wrong and she said 'why do they think you did,' and you can see him on videotape say ‘they got into my head.’

When he was arrested he was appointed a public defender before the public defender ever went to meet him or speak to him or speak to his mother, the public defender gave a press conference in which he said that Brendan Dassey was the product of his uncles manipulation and that his uncle had forced him to participate in this murder. To say that was unethical and prejudiced to Brendan Dassey is quite an understatement. This defence lawyers conduct was so appalling that the State prosecutor started worrying about his ability to get a conviction and urged the court to dismiss this public defender because of the prejudicial incompetence with which he was representing a kid who had always maintained he had nothing to do with this at all.

He was tried and convicted in front of a local jury in a case in which there was no physical evidence tying him to the scene of the crime, to Teresa Halbach, to anything in the case. And so, a question arose obviously upon his conviction ‘why did the jury convict him?’

The answer I think, the only answer that makes any sense is the prosecutors closing argument in the case, the prosecutor in effect told the jury ‘when you go into the jury box to consider the guilt or innocence of Brendan Dassey you bring your common sense with you, and when you apply your common sense you know that someone who is innocent does not confess to being guilty.’ That statement that innocent people don’t confess is actually wrong.

There are decades of scientific studies, forensic studies and evidence arising from now hundreds and thousands of exoneration cases where a conviction was obtained from a confession that prove for a variety of different reason people who may be innocent in fact do confess and that phenomenon is particularly true for juveniles, juvenile boys in particular who are in police custody, for people with intellectual disabilities. It is massively true for people who have a reduced capacity to be able to either communicate or process language, And so the predicate on which the jury was told its common sense was wrong.

JP: “There is a very large group of people who wanted to see this case revisited at the very least. In 2016 a judge, it’s my understanding threw out Dassey’s conviction and ruled that he should be released while prosecutors appealed the decision but of course he wasn’t released. What happened there?”

So, there’s a conviction, it's appealed to the Wisconsin Court of Appeals which affirmed the conviction on the grounds that it could not conclude that as a matter of law his confession as involuntary. So the only avenue of relief for Brendan Dassey was to file a petition for a writ of habeas corpus in federal court and there are federal laws that govern the circumscribed circumstances under which a federal court can determine that a state court conviction was so clearly violated of the US constitution that it can order the conviction reversed.

A petition was filed in federal district court here in Milwaukee, a federal district judge heard a lot of evidence in the case and rendered a decision if memory serves me is about 150 pages long, analysing all the evidence in the case and concluding that applying the standards of the fifth amendment to the US constitution, no reasonable judge could possibly conclude that, that confession was not the product of coercion under all the circumstances of the case including his age, his mental impairments, his intellectual impairments, his language impairments, and the circumstances of this concentrated series of uncounselled police interrogations. And he ordered that Dassey be released or given a new trial.

The state appealed to the 7th Circuit Court of Appeals which is the federal court of appeals that has jurisdiction over all cases arising out of among other places Wisconsin and Illinois. A panel of the 7th Circuit heard the case and ruled 2-1 that the district court was correct, the conviction represented a gross miscarriage of justice and that beyond any possible doubt the confession was not voluntary and had been the subject of coercion. The state asked the 7th Circuit Court of Appeals to rehear the case en banc, which means all active judges will hear the case. The court agreed. Between the time that the court agreed to hear the case and the time that it decided the case two active judges on the court became ineligible to participate. The full court heard argument again and ruled 4-3 that a writ of habeas corpus should not issue.

JP: “So now you’re asking Governor Evers for clemency, does he have any other options, does Dassey have any other options?”

As things now stand, no. Typically somebody who’s charged with a crime has a constitutional right to a trial, you have a constitutional right to appeal, you have a right under federal law and the federal constitution to have a federal court test the constitutionality of your conviction and imprisonment which he has availed himself of.

He won in the district court, he won before a 7th circuit panel, he lost before the en banc court and I was unsuccessful in convincing the Supreme Court to accept review of his case, which means that his judgement of conviction is final and that he no longer has any currently available means of legal relief. And so, we are asking the Governor to pardon him or at the very minimum to commute his sentence to time served because he is in fact innocent.

I think one thing that people may not realise is that through these multiple levels of judicial review not a single judge has ever expressed the view or even suggested that Brendan Dassey is in fact not innocent. That his confession was not in fact coerced. The court of appeals in Wisconsin found that giving the jury every benefit of the doubt of its verdict it could not conclude that as a matter of law no reasonable juror could have concluded that his confession had not been coerced and the federal court, the four judges in the en banc majority did not rule against him because they said or even thought that he was guilty or that his confession had in fact been voluntary but because as they explained there understanding of federal law, a federal court reviewing the constitutionality of a state conviction can grant relief only if there is a decision by the Supreme Court of the United States that is sufficiently clear and sufficiently on point, that taking account of the circumstances of this case no reasonable judge could possibly have concluded that this confession was anything other than involuntary.

That’s why I thought it was such an important case for the Supreme Court to take because it was only the fact that the Supreme Court has not considered the admissibility of a juvenile confession in 40 years and we know a lot, we’ve learned a lot in the last 40 years about what amounts to coercion when juveniles are subjected to lengthy intensive custodial interrogation. It was just terribly important for the Supreme Court to take this case and to model for the lower federal courts and for state courts and importantly for police officers what does and does not constitute unlawful coercion.

Millions and millions of people know what this case stands for, millions of millions of people know that this is a conviction that upon reflection of all the facts and circumstances should not stand, and that this boy is at a minimum very probably completely innocent. And therefore I think in part because of the starkness of the case, and because there is no evidence against him except this videotaped confession an individual who in the intervening I guess 13 or 14 years has been a model prisoner by all accounts the sweetest disposition. If there was ever a case for the application of executive clemency it’s this. I just don’t know what more could be presented to the Governor and how important it would be for him to say ‘ yes this is the model of the kind of case for which the President and the federal system and Governors in the state system have the power and authority and duty to apply clemency in an appropriate case.'

JP: “When you look at this case it seems like Brendan Dassey has fallen through a lot of different cracks in part because people continue to read the law as something that is very black and white, and he fits into kind of a grey area. That being said, Governor Evers has said that he’s not considering anyone who is either still serving their prison sentence or he’s not issuing any commutations. He’s also said these criteria cannot be waived, what are the odds of succeeding here when we have a Governor whose been very clear about the kinds of cases he’s willing to look at and the kinds he’s not.”

So, again I am not the best authority here, but I have not understood the Governor in the rules and guidelines that he’s proposed to take commutation of the table at all - and I would also say that the Governors rules, current rules do not appear to have an exception for cases of actual innocence.

As the Supreme Court and many, many, virtually every court and every chief executive has recognised actual innocence is in a class of one.

I don’t know whether the Governor has been presented with a clemency petition for pardon or commutation of somebody as to whom the evidence of actual innocence is so compelling. The Governor created whatever rules he thought were appropriate at the time he took office, I’m sure that he and his board have had experience applying those rules, the authority that makes the rules can amend the rules, enlightened authorities learn through experience and often do amend rules.

This is a really, really, unique and uniquely compelling circumstance and so I hope and I pray that whatever the Governor has said, whatever the guidelines he has announced on a going forward basis will either be flexible enough to grant clemency in this case or present a sufficiently compelling case that the Governor will see fit to amend and modify his rules so that he can do so without contravening the guidelines he set forth.

I mean clemency is ultimately, historically going back to pre-history a circumstance very individualised.

It depends utterly on the case that’s presented and the equities and pros and cons. It has always been the case that there would be rules and guidelines that would apply in the vast majority of cases, in the mine run of cases but every once in a while human beings, human institutions and human circumstance being what they are, every once in a while something truly exceptional will present itself and this is something truly, truly, truly exceptional.

JP: “You talked a lot about the interrogation of course and that was really seems like one of the first things that drew you into this case, the transcripts of that interrogation what was it about that made you want to become part of this legal team.”

Well most immediately I had handled a case in the Supreme Court called Roper vs Simmons in which the Supreme Court for the first time declared that the execution of juvenile offenders violated the eighth amendment. A lot of the advocacy in that case involved marshalling medical evidence and biological evidence about how the juvenile brain develops and how late parts of the brain, particularly for boys develops that allow them to evaluate medium term risks and consequences. As a result of that I got involved in a couple of cases in the Supreme Court that established the respects in which the execution of persons with intellectual disabilities also violated the cruel and unusual punishment clause and so I’d become interested and somewhat involved in my pro bono practice in representing death row inmates who were either juveniles or had some level of intellectual disability. I mean more generally I began practicing law in 1978 and have tried to spend at least 20 percent of my time doing pro bono representation of respects of which I thought I could help make the world a better place, and since 1978 that has included representing death row inmates in their post-conviction proceedings.

One of the first cases I tried was a habeas trial for a death row inmate in Georgia. And those are tough cases you know, you cant win them all to say the least, when somebody’s life is at stake it’s a great responsibility and what I said to people and its true, is, I’ve never had a case that has troubled me as much as this one. I felt like when the Supreme Court denied review of this case, I felt like this just bottomless sadness that I couldn’t help Brendan Dassey in a way that I’ve not felt in other cases that I’ve handled for people who were serving horrible sentences, or frankly in years of representing the interests of the United States in cases that I thought were really, really important to the health and wellbeing of our country. This case has just stayed with me in a way that is really really unique and it’s the reason that I’m in Wisconsin today.

JP: “Well Seth Waxman thank you so much for joining us here on Lake Effect and sharing your work.”

Thank you so much for having me.

.....

Seth Waxman

Universally considered to be among the country's premier Supreme Court and appellate advocates, Seth Waxman served as Solicitor General of the United States from 1997 through January 2001. In addition to leading the firm's appellate practice, Mr. Waxman engages in a broad litigation and counselling practice, with particular emphasis on complex challenges involving governments or public policy, intellectual property, regulatory, criminal and commercial issues.

A Fellow of the American College of Trial Lawyers, Mr. Waxman also is a widely respected trial litigator. In January 2016, The American Lawyer named him "Litigator of the Year." Mr. Waxman was also named Litigation - First Amendment "Lawyer of the Year" for 2020, Appellate/Litigation "Lawyer of the Year" for 2018, Litigation - Intellectual Property "Lawyer of the Year" for 2016 and Litigation - First Amendment Law and Regulatory Enforcement Law "Lawyer of the Year" for 2015 by Best Lawyers in America, and, in 2014, Super Lawyers deemed him the "number one" lawyer in Washington DC. Mr. Waxman has been accorded both "star" rating by Chambers USA and "leading lawyer" ranking in PLC's Global Counsel Handbook.

Mr. Waxman's practice spans both federal and state trial and appellate courts. He has delivered 80 oral arguments in the United States Supreme Court and many more in the lower federal and state courts. Mr. Waxman's clients range from financial institutions to technology, consumer, industrial and media companies, universities and Indian tribes, and he leads the firm's efforts to counsel tribal governments. He also represents a number of local, state and national governments and prominent business and government executives and professionals. The recipient of numerous professional awards and honours, Mr. Waxman is among a small handful of practicing attorneys elected to the American Academy of Arts and Sciences. He holds several honorary degrees, as well as the Jefferson Medal in Law, an honour awarded once a year and only rarely to an attorney in private practice. In recognition of exceptional service to law enforcement, Mr. Waxman holds the extraordinary status of permanent honorary Special Agent of the Federal Bureau of Investigation.

Professional Activities

Mr. Waxman served as president of Harvard's Board of Overseers from 2010-2011. He was elected to the board in 2005 and has served on its executive committee since 2008. Mr. Waxman also serves on the faculty of the Georgetown University Law Centre. He is a director and fellow of several professional, educational and cultural institutions, including the American College of Trial Lawyers, the American Academy of Appellate Lawyers, the American Bar Foundation, the American Law Institute, the Supreme Court Institute and the Supreme Court Historical Society. He lectures and writes frequently on topics related to litigation, constitutional history and doctrine, the First Amendment, intellectual property and the Supreme Court.

…and for the last two years he has been part of Brendan Dassey’s legal team.

Information on Mr Waxman sourced from WilmerHale