Making an Accomplice: Why "Making a Murderer's" Brendan Dassey Deserves a Re-Trial--Even if His Uncle Doesn't

"Stop lying," he says--the eighth time. A bead of sweat slithers across a pasty crack on his forehead. "Son, listen: If you're straight with me, I'll help you. Promise." The officer sips his Mountain Dew, licks his lips, leans forward. Again: "Stop lying."

Trapped in this sterile bright-white room for hours, you've told the truth--the whole truth. It's gotten you nowhere. All you want is to go home and play PlayStation. Yet to give him what he wants and to escape this PlayStation-less place, you must lie. What's the worst that can happen? He's offering to "help."

So you do something very stupid. You lie.

"All right: I did it. I held her to the bed. I raped her, I slit her throat, I watched her writhe and I watched her die. I helped burn the body." Silence--silence at last--highlighted by the AC's steady buzz. You sigh. The sweat-bead on the officer's forehead free-falls to the table, splashes, pops like a nuclear bomb. It's worked! Ten more questions and you're dismissed, just like the kind officer promised. You slip into pajamas and power up the PlayStation.

It's the last time you'll ever touch a PlayStation controller. The next day you're shoved out of class and handcuffed by your inquisitionist. You glare at the slimy bastard, begging him to remember his failed promise--"I'll help you." He feels no shame; he's proud.

He was only doing his job.

This archetype recurs every day. It ensnares African-American youth with special vigor, and it ensnared Brendan Dassey, a mentally-challenged man languishing in prison for words ventured as a mentally-challenged boy. (Fair warning: If you plan on a spoiler-free viewing of Making a Murderer, stop reading.)

Brendan's uncle Steven Avery is a Wisconsin exoneree who was re-incarcerated for the alleged rape and murder of Teresa Halbach. Unlike Brendan, Avery's conviction rests on testimonial and physical evidence. To me, a defense-minded guy who's worked at a public defender's office, the evidence supporting Avery's guilt (especially proof excluded from Making a Murderer) is forceful. It's convinced me that Avery could be guilty--though not guilty beyond a reasonable doubt.

Brendan's case is different. Although, in his infamous March 2006 interrogation, Brendan confessed to raping Halbach while she lay restrained on Avery's bed with ropes and chains, to then lopping off her hair and slitting her throat, no physical evidence was ever found supporting that narrative. Not rope fibers, not hair, not sweat, not semen, not blood. This makes no sense. Even consensual sex is a messy business. Rape is messier still--especially when combined with murder.

And yet: Confessions are strong stuff. I should know better, but I too feel the natural reaction--"he's guilty!"--when someone confesses. Why would an innocent suspect ever confess? Who admits to a crime he didn't commit? (The perplexing answer is at least one in four adult DNA exonerees, and more than fifty percent of juvenile ones.)

The logic behind our country's most famous case, Miranda v. Arizona, clears things up by outlining why innocent people might feel pressured to confess. For those who've never watched a TV crime drama, Miranda held that police must administer Miranda warnings before "custodial interrogation." Disobedience, whether intentional or negligent, yields a steep price: A resulting confession is excluded from trial. If the confession is all the government's got, then a guilty defendant might go free simply "because the constable has blundered."

What justifies suppressing such precious information? Why not let the jury determine a confession's reliability? In Miranda, the Warren Court argued that police interrogation is simply so psychologically overpowering that even highly educated adults--even defense attorneys steeped in constitutional law--must be reminded of their Fifth Amendment rights before the police close the interrogation room's door. Otherwise, a resulting confession is like the fruit of a poisonous tree. Feeding such a "confession" to a jury is like feeding them poison--the only thing that comes out is vomit.

Brendan's public defender
has taken a lot of flack. It's all justified. That he actively encouraged Brendan to speak violates both common sense and Criminal Law 101. As the Miranda Court pointed out, police deploy a host of psychological tricks to elicit confessions. Alone in an interrogation room without the guiding hand of counsel, a sixteen-year-old is doomed.

Watching Making a Murderer, I noticed the subtle deceits I'd read about in Miranda throughout Brendan's interview. Emotional appeals; faked kindness; interrogation for a spell of hours; verbal badgering; the false implication that the government already had whole rooms of evidence; the police's thespian front of "priest eliciting a confession." The overwhelming impression the state gave Brendan was that there was one way out of that stifling little room, just one path back to his precious PlayStation: Incrimination. Even at the price of truth.

Yes, I know: Brendan Dassey received his Miranda rights and waived them anyway. But consult your common sense. Ask yourself: Can a sixteen-year-old kid with an IQ of 70, severely undereducated, really waive his Miranda rights? (A legally valid waiver must be "knowing, intelligent, and voluntary.") Did Brendan really understand the substance of what the Miranda regime is supposed to convey--that he had an absolute right to remain silent, that what he said would be used for the benefit of the State of Wisconsin's liberty-stripping army, all meticulously arrayed against this one, ill-equipped, insufficiently-counseled kid?

No. Brendan's confession is tainted by leading police questions and positive conditioning. Watching his March 2006 confession, I was struck by Pavlovian psychology. They treated Brendan like I treat my beagle puppy when I want him to stop ransacking the carpet. When Brendan implicated himself in criminal activity, the police squeaked: "Good boyyy. Good doggie!!" They rewarded him with Mountain Dew and sandwiches. "Have a treat, boy!" But when he stuck to his original story--the one devoid of rape and murder--they scowled: "Bad doggie! No rest for you!" Through this truth-suppressing mechanic, the police cultivated Brendan's gruesome "confession" like a farmer tending crops. I put confession in quotes because it's ridiculous to attribute the story to Brendan; what came out of his mouth belongs as much to the interviewers as to Brendan. They fed him the facts. All Brendan did was assemble them into a plausible narrative so he could get the hell out of that police station.

Whether Brendan is guilty or innocent, we should all be troubled that such an unreliable confession sent a sixteen-year-old to prison. Again, a rape and struggle on the bed should have produced waterfalls of DNA from blood and semen and hair. Where is it? More to the point, look at how Brendan carries himself--timidly, shufflingly, awkwardly. He's polite to the point of deference. It's hard to imagine him cutting someone's throat.

Don't misinterpret me. Like his uncle, Brendan may be guilty. Unlike his uncle, his conviction rests entirely on the coerced confession of a frightened, mentally-challenged boy badgered by grown men wielding badges and guns and uniforms and loud, firm voices. While this tenuous evidence suggests Brendan could be guilty, our system of justice rests on the fundamental assumption, the common-sense ideal, that it's just plain wrong to sentence people to life in a cage based on a "could." Brendan deserves a re-trial.

The integrity of our criminal justice system does, too.