LaVigne and Miles on Brendan Dassey, Language Impairments, and Judicial Ignorance @WisconsinLaw

Michele LaVigne, University of Wisconsin Law School, and Sally Miles, Independent, are publishing Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance in volume 82 of the Albany Law Review (2019). Here is the abstract.

Making a Murderer, the Netflix documentary sensation, introduced the world to two unlikely protagonists, Steven Avery and Brendan Dassey of Manitowoc, Wisconsin. Both were convicted of a 2005 homicide and received life sentences. Avery was the main focus of the series, but it was Brendan, a developmentally-delayed sixteen-year-old, who won the heart and outrage of viewers. The primary piece of evidence against Brendan was a “confession” cruelly extracted by law enforcement. The voluntariness of that confession was litigated in state and federal courts for over a dozen years. Tragically, most of the courts, including the final Seventh Circuit Court of Appeals en banc majority, were completely oblivious to fact that Brendan’s had the kind of severe communication and language impairment which would have left him helpless against the out-of-control interviewing style used by law enforcement. This article examines what the courts overlooked. In order to fully assess the interviews and their impact, the co-authors had to do an under the hood analysis of Brendan’s language and communication skills as well as the communication of law enforcement. The co-authors, a clinical law professor and a speech language pathologist, suspected that Brendan suffered from a language impairment (disabling deficiencies in oral language competency), and we were right. The court file contained school records and assessments that placed Brendan’s language and communication skills in the lowest percentile of all sixteen-year-olds. This impairment had a profound impact on all aspects of Brendan’s functioning. The other part of the equation was more complicated, but equally revealing. With the assistance of a language transcription company we closely analyzed law enforcement communication, and how that communication would affect someone like Brendan. The results were alarming. 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. By the time we finished our review, we were 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. This article describes our findings. It shows how law enforcement essentially abused Brendan with a chaotic mess of verbiage. And how, up against such a relentless verbal torrent, Brendan never stood a chance. The article also analyzes the myriad ways that the courts were simply wrong in their assumptions about Brendan, communication, and human behavior. On a larger scale, we believe that this article, and the process that created it, can provide a prototype for future cases. Brendan Dassey’s impairment is not unique, and within the criminal justice system, it is not even unusual. Nor, unfortunately, are egregious police interviewing “techniques.” The use of speech-language expertise and discourse analysis could be useful to prevent the kind of grotesque injustice done to Brendan Dassey.

Download the article from SSRN at the link.