UNDER THE HOOD: BRENDAN DASSEY, LANGUAGE IMPAIRMENTS, AND JUDICIAL IGNORANCE.

• Author: LaVigne, Michele

INTRODUCTION: MAKING A MURDERER?

The 2015 Netflix documentary "Making a Murderer" was a worldwide sensation. (1) The ten-part series told the story of Steven Avery of Manitowoc, Wisconsin, and his nephew, Brendan Dassey, who were convicted of the gruesome 2006 homicide of Teresa Halbach. (2) The series raised serious questions about whether the two were actually guilty or the victims of law enforcement malfeasance. (3) Viewers were divided on Avery, with as many saying he was guilty as not guilty. (4) Viewers were not nearly as divided, however, about Avery's sixteen-year-old nephew, Brendan Dassey. (5)

Brendan was a developmentally-delayed special education student whose treatment by all parts of the criminal justice system, including his own attorney, was at best an embarrassment, and at worst, the direct cause of a grotesque wrongful conviction. (6) For many, the most disturbing aspect was the footage of eager law enforcement extracting a "confession" from Brendan in ways that were both comical and cynical. (7) One commentator likened the interrogation to training a new puppy. (8) The most memorable part of the interrogation came when investigators harangued Brendan about what was done to Ms. Halbach's head. Brendan proceeded to guess: Cut off her hair? Punched her? Cut her throat? When he said he could not remember anything else despite investigators' insistence, they blurted out: "Alright, I'm just gonna come out and ask you, who shot her in the head?" Brendan replied, "he [Avery] did." (9) When asked why he had not told them, Brendan said, "[c]ause I couldn't think of it." (10) Later, after Brendan had "confessed" to raping and killing Ms. Halbach, he asked if he could return to school because he had "a project due in [sixth] hour." (11)

Not surprisingly, the full statement is filled with contradictions and physical impossibilities. Nevertheless, law enforcement cobbled together enough of a confession to form the basis of the charge that Brendan had assisted Steven Avery in killing Ms. Halbach. (12)

Despite glaring overreach by law enforcement (the series only captured a miniscule fraction), the trial court found that Brendan's confession was voluntary and it was admitted as the primary piece of evidence in his trial. (13) He was convicted as a party to the homicide and sentenced to life imprisonment. (14) The voluntariness of Brendan's confession was the primary issue in an unsuccessful state appeal and federal habeas corpus action. (15) Brendan continues to serve a life sentence. (16)

The co-authors watched "Making A Murderer" with both personal and professional interest. Of course, we were taken by the drama, though we knew the outcome for Avery and Dassey long before the show ever appeared. But we were particularly intrigued by the interrogation of Brendan Dassey. More specifically, we were curious about the linguistic aspects of the interrogation. We both have professional interest in language impairments, i.e., deficits in language and language usage. (17) We are well aware that despite the innocuous name, language impairments can be serious disabilities with potentially catastrophic effects. We are also aware that individuals with language impairments are substantially overrepresented in the criminal and juvenile justice systems. (18) Though the documentary never came out and said that Brendan had a language impairment (throughout the program and the criminal case itself, there are references to Brendan's intellectual deficits and borderline IQ, but there are few specifics), we were fairly certain he did. And if he did, we were certain it would have had a profound effect on the interrogation.

Our first step was an easy online search of court records, where we found documentation that Brendan did indeed have a severe language-based specific learning disability and multi-faceted language impairment that placed his communication and processing skills in the lowest percentiles of all juveniles his age. (19) Brendan's brutally low scores, which one expert termed "appalling," (20) inspired us to undertake a closer look at the language of the interrogations. With the assistance of a language transcription company, we conducted a thorough qualitative and quantitative analysis of the communication and language of the complete interrogation. We took a deep look under the hood, examining the volume and structure, as well as the content, of what was said by both Brendan and law enforcement.

We quickly concluded that the interviewing "technique" utilized by law enforcement was a chaotic, unprofessional mess. Almost everything the two officers did in the course of interrogating Brendan violated the most minimal standards for interviewing any juvenile, but especially one with underdeveloped language and communication skills. They inundated him with verbiage, continuously asked multiple questions within a single turn, spoke in paragraphs, changed topics in the middle of an oration, asked hundreds of leading questions and planted content thousands of times. (21) By the time we finished our review, we were, and are, confident that the verbal behavior of law enforcement throughout the interrogations of Brendan, coupled with his poor ability to linguistically cope and his age, made him a prime candidate for unwillingly--and unwittingly--confessing to a crime he did not commit. (22)

Our analysis has little in common with the voluntariness ruling by the trial court. (23) That ruling demonstrated a remarkable ignorance of how humans communicate in general, let alone the special issues presented by someone like Brendan Dassey. The decision instead closely parsed apparent promises of leniency to show that they were not actual promises of leniency, and noted that law enforcement did not yell and allowed Brendan to sit on a soft couch. (24) The decision even suggested that Brendan was not really a special education student because part of his school days was spent in "regular-track high school classes." (25) Tragically, this decision was the foundation for a long legal journey that ended in June 2018 with a denial of certiorari by the U.S. Supreme Court. (26)

Admittedly, nobody else involved in the case seemed to know much about communication or Brendan's impairments either--not law enforcement, not even his own pre-trial attorney. (27) A record of Brendan's language disability and its significance was never developed during the pretrial hearings, although counsel possessed the testing results. (28) Of course, in order to remain so oblivious, all parties must have completely disregarded the records that laid out Brendan's deficits in the plainest of terms. (29) And they must have been blind to the behavioral and verbal cues that Brendan would have provided any time they met.

This Article describes our under-the-hood analysis of the interrogations of Brendan Dassey and explains why we believe that reckless and amateurish behavior of law enforcement in the face of Brendan's communication deficits directly contributed to an involuntary, and utterly unreliable confession. We are hardly alone in thinking that the confession violates the most basic standards of common decency and due process, and that, even with the existing record, it never should have been admitted at trial. (30) Our analysis simply provides another layer. You could say that this is our fantasy attempt to supplement the record, albeit a decade later. This is also our attempt to proselytize about language impairments and their insidious effects.

Our approach is interdisciplinary and informed by our experiences and research in two different fields--law and speech-language pathology. While the legal community in the United States is just beginning to notice the speech-language profession, (31) we have found that law and speech-language pathology are a natural fit. Co-author Dr. Sally Miles' clinical and research expertise in the field of speech-language pathology has allowed us to collect and analyze language data in ways not usually found in law. (32) She has also provided clinical observations along with expert opinions of the type that a lawyer would rely on both in and out of court. (33)

This Article will not rehash or reframe the material covered in the pleadings filed in state and federal court on Brendan's behalf. Those motions and supporting briefs did a masterful job of describing the myriad ways that law enforcement unambiguously fed Brendan--a child--specific incriminating details, promised leniency, and repeatedly lied about their "superior knowledge." (34)

Here, the focus is not so much on what was said by law enforcement, but how it was said. And, why how it was said would prey on the very specific weaknesses of someone like Brendan. We provide examples throughout our analysis and discussion, but readers are encouraged to listen to the recordings of the interrogations to get the full flavor. (35)

This Article is foundation-heavy. We spend considerable time talking about language impairments in general and the science of interviewing. This type of background information is necessary for our analysis to make any sense. Then, we turn to this case. First, we discuss what we learned about Brendan's language impairments from his school records (all in the court record) and what they tell us about his communicative ability to cope in an interrogation. Then, we move on to our qualitative and quantitative analysis of the interviews/interrogations. We certainly looked at Brendan's verbal and non-verbal conduct, but as the discussion reflects, we ended up paying more attention to law enforcement's verbal and non-verbal conduct because it was so much more remarkable--and not in a good way. Finally, we return to the court decisions--the trial court and the Seventh Circuit Court of Appeals en banc majority--to show how courts completely missed the realities of Brendan's impairments and the egregiousness of the interviewing "technique" used by law...