Anatomy Of A False Confession: The Interrogation And Conviction Of Brendan Dassey

Author: Michael D. Cicchini
Publisher: Lanham, MD: Rowman & Littlefield, 2018. 248p.
Reviewer: William Douglas Woody │ July 2020

Michael D. Cicchini, Esq. has crafted a strong and detailed legal review of the interrogation and confession of Brendan Dassey, the sixteen-year-old with a cognitive disability who features prominently in the well-known documentary series Making a Murderer (Ricciardi & Demos, 2015). In his review, Cicchini provides comprehensive analysis of each step of the journey from the start of the investigation through Brendan Dassey’s confession and his conviction to his subsequent failed appeals. Throughout the book, Cicchini provides extensive insight to readers, illuminating details of the case unknown to even dedicated viewers of the well-known documentary series. As is evident from the title, despite Dassey’s conviction and failed appeals, Cicchini views Dassey as innocent and Dassey’s confession as false. These perspectives—alongside the evidence that supports these views—shape the work from beginning to end.

Cicchini opens with a review of false confessions, including their causes and the reasons false confessions remain difficult to detect. He reviews findings from psychological science as well as conclusions from legal scholars, and he considers the ways that confessions, particularly false or coerced confessions, affect both trials and plea bargains. He connects the Dassey confession to these legal and scientific ideas throughout the book. After this opening, he steps into the case.

Cicchini’s legal review reaches widely, starting with the 1985 wrongful conviction of Steven Avery, Brendan’s uncle. After his release in 2003, Avery’s lawsuit was underway (against the local sheriff and district attorney who wrongfully convicted him) when Teresa Halbach was murdered and her body was found on Avery’s property. Cicchini opens with the steps police investigators took to question Brendan Dassey, whom they interrogated in the hope that Dassey would confirm that he had seen Halbach at Avery’s home. In the first interview of Dassey by police, however, while sitting in the back of an unmarked police car and without any Miranda warnings, Dassey stated that he had seen Teresa Halbach leaving Avery’s property, raising critical questions about the detective’s theories about the crime. If Dassey saw Halback leaving the Avery property, his testimony would not support detectives’ theories about Avery’s guilt. At this point, the detectives changed tactics in ways that may surprise even Making a Murderer enthusiasts.

Cicchini examines all of Dassey’s interrogations and confessions in detail, starting with the statements made to detectives in the back of an unmarked police car, going through each of the multiple police interrogations of Dassey (including interrogations in Dassey’s school, in the police station, and just before trial, which Dassey’s lawyer approved even though he would not be present), and ending with Dassey’s statements to his mother on a recorded phone call, made on the recommendation of police interrogators. In this process, Cicchini reviews interrogation strategies, the litany of deceptive tactics used by police interrogators to prompt Dassey, a child with an intellectual disability, to confess in ways that would enable police to put not only Avery but also Dassey at the center of the heinous crime. In Cicchini’s detailed examination of the confessions, he notes the ways that Dassey’s confession does not fit the evidence. For example, Dassey graphically confessed to sexual assault, stabbing, and homicide by cutting the victim’s throat, all of which he claimed took place in a cluttered trailer, but no blood or other evidence of these acts remained at the scene of the alleged crime.

Throughout his review, the author examines officers’ interrogation tactics. He opens with the tactics that officers used to avoid providing Miranda warnings to Dassey during the first interrogation: they argued that Dassey was not yet in custody while sitting in the back of a police car. In later interrogations in the police station, the officers provided a Miranda warning, and Dassey waived his rights. Here, Cicchini provides a strong review of the legal and scientific factors that affect suspects’ decisions to waive their rights. He describes a series of factors in the research literature (e.g., officers’ minimization of Miranda as an administrative ritual, comprehension difficulties for vulnerable suspects, the increased speed with which many officers read Miranda warnings), which interact to leave Dassey overwhelmingly likely to waive his rights, which he did. Cicchini then turns to the officers’ interrogation tactics, describing the deception used by officers, including numerous implied promises and threats, false claims to have evidence indicating Dassey’s guilt, deceptive role-playing in which officers imply that they are his allies who sought to help Dassey (rather than seeking to convict him), and extensive use of leading questions. Even for avid viewers of Making a Murderer, Cicchini’s detailed review of the interrogation tactics across so many interviews is illuminating and powerful. He also reviews the roles of officers’ biases. Their confidence that Avery was guilty led them to Dassey, and their emerging confidence in Dassey’s guilt left them willing to accept his confession even when he contradicted himself or when his confession did not fit existing evidence.

Cicchini brings the same detailed examination to the preparations for trial and the trial itself. For example, he notes the Wisconsin Supreme Court Rule that prohibits attorneys from making any pretrial statements to the media about a defendant’s confession, and he explores the likely impacts of pretrial publicity from a district attorney’s press conference held immediately after Dassey’s confession at which a prosecutor described Dassey’s confession in detail. Similarly, Cicchini examines the actions of Dassey’s first appointed defense lawyer, who encouraged Dassey to plead guilty, announced to the media that Dassey was responsible for the crimes, and, unusually, hired a private investigator to interrogate Dassey. The author examines the totality of the circumstances in this degree of detail from trial preparation through the trial itself and then into the appeals at the state and federal levels.

After a review of the trial, appeals, and outcomes, Cicchini turns to specific recommendations for reform. In this penultimate section of the work, he addresses several of the issues considered by scholars in psychological science as well as legal circles. Among other reforms, he recommends removal of confrontational interrogation approaches, increased testimony from scientific experts in psychology and related fields about interrogations and confessions to educate courts and the public, and specific reforms to improve the comprehension and usability of Miranda warnings. These latter recommendations, similar to other topics in the book, come directly from Cicchini’s published law reviews.

The final chapter of the book is a Postscript added just prior to publication: “Calling the Supreme Court.” As Cicchini notes in the Postscript, the U.S. Supreme Court formed the last option for Brendan Dassey to seek relief. Cicchini wrote this Postscript before the outcome became known: The U. S. Supreme Court declined to hear Dassey’s appeal and provided no justification for its decision (Victor, 2018). In his speculation about the U. S. Supreme Court (whose decision was unknown at the time of his writing), Cicchini wrote “if the Supreme Court refuses to hear Dassey’s case this much is certain: the interrogation and conviction of Brendan Dassey will go down as one of the greatest injustices in the history of American criminal law” (p. 203).

This book has several important strengths. First, the author’s strong legal skills and his substantial experience as a practicing defense attorney provide foundations for the entire work. He brings his years of education, practice, legal studies, and legal writing expertise to this thorough review. His careful legal reasoning can serve as a model for law students or pre-law students as they learn the reasoning skills necessary to navigate the criminal justice system. Second, Cicchini’s consistent infusion of the science of interrogation and confession strengthens his work. Although I (as a scholar in psychological science) would recommend more inclusion of primary sources in psychological science over review sources from legal publications, I recognize that these are my biases and that his discussions of science are effective, illuminating, and convincing. Third, the writing is strong and engaging throughout the book, even in the dives into the detailed legal reasoning that runs through this case.

As is true for all scholarly endeavors, some weaknesses exist in the work, and here I note two. First, the author is willing to dive deeply into legal minutia and to engage in the hair-splitting that can characterize legal practice in cases of this size and scope and with so much at stake. For example, he explains in detail the role played by the Antiterrorism and Effective Death Penalty Act (AEDPA) in Dassey’s federal appeal. After a Wisconsin state appellate court ruled against Dassey’s appeal, his defense attorneys filed an appeal in federal district court. The court then ruled in Dassey’s favor, vacated his conviction, and gave the state 90 days to release Dassey, retry Dassey without the confession, or appeal. At this point, the state appealed to the Seventh Circuit Court of Appeals. To resolve disagreements between state and federal courts, the Seventh Circuit had to consider the AEDPA. Although the death penalty was not on the table for Brendan Dassey due to his age, the AEDPA set standards for federal courts that review decisions from state courts. Cicchini steps into the detailed requirements of AEDPA to illuminate the hurdles that the defense team had to clear for this appeal. The defense team had to convince the Seventh Circuit Court that the state court was not simply wrong but so unreasonably wrong that no judge would reach the state’s decision. Cicchini reviews the entirety of the federal appeals process, in which the Seventh Circuit Court ordered a new trial, and then examines the next events in similar detail, including the state appeal of the Seventh Circuit Court decision, the subsequent en banc review by the Seventh Circuit Court, and then the Seventh Circuit Court’s reversal of the federal court decision, a reversal that upheld Dassey’s conviction. The amount of legal detail can feel overwhelming.

Although I list this feature of the book as a weakness, this legal review will be helpful for many readers and even necessary for others, particularly those who serve in criminal law, those who are on or are seeking a career track that leads to legal roles, and students in pre-law programs or law schools. Cicchini is well-aware of the difficulties inherent in a review of this detail. Additionally, as noted previously as a strength of the work, Cicchini’s engaging writing guides the reader through these details in a thorough and effective way, maintaining interest and clearly connecting the legal details to the larger questions about the case and the appeal. In other words, although I list this as a potential weakness for some readers, this level of detail, particularly when coupled with the author’s engaging writing, helps readers to understand better the complexity of the case and the difficulties built into criminal appeals in general and into appeals about this case in particular. I also enjoyed the complex and well-written journey in this exercise in legal reasoning.

A second weakness in the book emerges through Cicchini’s biases as a highly experienced defense attorney. After decades of intense trials in which he has consistently faced off against police officers, district attorneys, and trial and appellate judges, his anti-prosecution biases are evident. He does not hesitate to assume negative motives or lack of investment (i.e., laziness) for these individuals. Although these biases may be unsettling to some readers, particularly those who are police officers, prosecutors, or judges, I view the emergence of pro-defense biases to be nearly inevitable in these highly contentious trial environments. Simply stated, for nearly anyone who worked for so long in these intense and contentious roles, it would be highly likely or even inevitable that they would share his biases after so many years in the trenches.

Cicchini has crafted a detailed and insightful review of Dassey’s case. The book provides detail and analysis of these important legal events in ways that appear likely to be illuminating even to fans of Making a Murderer. The connections Cicchini makes between the details of the Dassey case and larger issues in the criminal justice system make this work an important resource for the interested public, as well as for scholars and practitioners in the legal system and related fields.

References

Ricciardi, L., & Demos, M. (Directors & Producers). (2015). Making a Murderer. USA: Netflix.

Victor, D. (2018, June 25). Supreme Court won’t hear appeal of “Making a Murderer” subject Brendan Dassey. New York Times. Retrieved from https://www.nytimes.com/2018/06/25/us/brendan-dassey-supreme-court.html

William Douglas Woody, Ph.D., Professor of Psychological Sciences, University of Northern Colorado