Last week, I spoke to NITA Trustee Tom Geraghty about his involvement in Brendan Dassey’s wrongful conviction case, which was brought to worldwide attention by the Netflix documentary, Making a Murderer. Today, Tom’s colleague Steve Drizin continues that discussion, sharing his insights into Brendan’s situation and what it’s like to work on cases that sometimes make the difference between life and death. Like Tom, Steve is based in Chicago at Northwestern’s Bluhm Legal Clinic and has been known to teach at NITA programs from time to time. The work Tom, Steve, and their colleagues at Bluhm perform is (at the risk of sounding treacly here) noble and beautiful—and if it doesn’t get to the very heart of advocacy, then I just don’t know what does. Read on and see if you agree.
I don’t think too many people outside Wisconsin were aware of the Steven Avery case, nor, of course, of the grave miscarriage of justice in the case of his nephew Brendan Dassey, until Making a Murderer popped up on Netflix. But you, Steve, have known Brendan a long time. How did you become involved in his case?
In October 2007, I was asked by several Wisconsin attorneys to represent Brendan Dassey on appeal. Brendan could not be represented by the Wisconsin State Public Defender’s Office because his uncle had been briefly represented by the office. His only option was a “contract” attorney, a private attorney willing to take the case for the paltry sum of $40 an hour. The Public Defender was having a hard time finding any attorneys who were willing to take the case for so little money, and they were worried that Brendan would not get the kind of representation he deserved. I was a known entity in Wisconsin because I had worked on several cases there, and I had lectured to public defenders at their annual statewide conference about false confessions.
How often do you see Brendan face to face?
Because he is incarcerated some distance from Chicago, we do not see him face to face as much as we would like. We communicate mostly by telephone and have had more contact with him since the film was released.
What is he like?
Brendan is a sweet, naïve young man who loves animals, video games, WrestleMania, and who cares deeply for his family.
What does Brendan understand about Making a Murderer, both as a popular cultural phenomenon and as an agent of momentum in his legal case?
Brendan has not seen the film, but he knows that the film has changed people’s perceptions of him. The most immediate result of the film is that Brendan has now become embraced by legions of Making a Murderer fans from all over the world. They write to him, send him cards on holidays and his birthday, send money to his canteen account, etc. The series was a godsend for him; he leads a much richer life. Every day, he looks forward to receiving mail and spends his time writing back to some of his new friends.
Tom Geraghty remarked that the brief your colleague Laura Nirider wrote in support of this petition “is one of the best briefs I have ever read,” and that you have good reason to be cautiously optimistic about prevailing. How long does it typically take for the court to respond to a habeas petition, and how close to a ruling are you?
That’s a hard question to answer. The case has been fully briefed for eleven months. I think that in a case like Brendan’s, which raises Fifth and Sixth Amendment claims and which requires that the judge and his clerks comb through a sizeable record, it should take longer to decide than the average habeas petition. My best guess is that we will receive a decision sometime in the next six to twelve months.
If the outcome doesn’t go your way, what options remain for Brendan?
He will appeal to the United States Court of Appeals for the Seventh Circuit Court of Appeals, and if he loses there, we will file a petition for certiorari to the United States Supreme Court.
You’ve become a specialist in a very particular niche. Can you tell me what case, circumstance, or particular interest of yours led you to becoming an expert in false confessions, particularly those coerced from minors?
In 1995, I agreed to represent (with Tom Geraghty) an eleven-year-old Chicago boy who had been convicted of stabbing to death an eighty-three-year-old woman. The boy had confessed in great detail during an interrogation that took place outside the presence of his parent or an attorney.
When I met him, the first thing the boy told me was, “I said I did it, but I didn’t do it.” And I did not believe him. In order to represent him effectively, I needed to understand the psychology of police interrogations and confessions, how standard police interrogation tactics can lead the innocent to confess, and the ways in which a suspect’s youth makes him or her more vulnerable to such tactics. I read everything I could find on the subject, contacted the leading experts in the world for advice, and began to collect and document cases of false confessions in Illinois and around the country. It took me seven years to get the boy’s conviction reversed (in federal court), but he was eventually exonerated.
Can you talk a bit about some of the memorable cases you’ve worked on that have resulted in exoneration?
My most memorable cases do not involve exonerations. The case that I am most proud of is Roper v. Simmons, the United States Supreme Court decision that abolished the death penalty for juvenile offenders. I did not argue the case or represent Christopher Simmons, but I did co-write an amicus brief in the case. I was also part of a small group of men and women who developed a national strategy to abolish the juvenile death penalty at a time when few people believed that such a challenge could be successful. The Simmons case was the culmination of our efforts. It is my most memorable case because not only did it instantly save the lives of over seventy young men, but it opened the door to future successful challenges to life without parole sentences for youthful offenders that have affected thousands of lives. In the interrogation realm, our amicus brief and my research was cited by the Court in J.D.B. v. North Carolina (2011), a case that has the potential to lead to even greater protections for youthful offenders during interrogations. For me, exonerations are special, but what I enjoy most about innocence work is the way these cases can help to lead to greater protections not only for the innocent, but for those accused of crimes as well.
Being a crucial part of the difference between life and death for a client is well beyond the average courtroom win. Most criminal defense lawyers never have the chance to do what you do. What does it feel like to win?
I love to win. It’s an incredible feeling to rewrite history and to change a forgotten person’s legacy and give them a fresh start in life. Such wins are welcome respite from the daily grind of trying to get an unjust system to own up to its mistakes. I’ve won my fair share of cases, but it is the losses that stick with me—the cases of men and women I believe to be innocent but who, for reasons that are beyond their control, are not able to prevail in court.
Do you still hear from those you’ve helped receive an exoneration or a pardon? It seems like getting out of prison is only the beginning of the difficult process of them getting their lives back. What is it like for them in the aftermath?
I stay in touch with many of my former clients. They frequently come by the office, interact with our staff, meet with our social workers, speak in our classes, come to our holiday parties, etc. Northwestern’s Clinic is a safe haven for them, and many find comfort there and support from our faculty, staff, and students. Some of our clients struggle when they come out, but our former clients are often there to help them find their way. Life after exoneration is extremely difficult, especially for offenders who were only teenagers when they were arrested for their crimes. They never really learned what it meant to be an adult and were often deprived of the kinds of role models who could help them make the transition from adolescence to adulthood.
How do you celebrate a victory?
A colleague of mine, Jane Raley, instituted a beautiful tradition at the Center on Wrongful Convictions. We have a communal celebration to welcome our clients back to the free world. It’s known as the “rose ceremony.” We assemble our exonerees and their families; gather the attorneys, social workers, investigators, and students who worked on the case; buy a bunch of roses and invite people to pick a rose, present it to the exoneree, and say a few words to him or her. Then we cut a big cake and eat and drink.
I’ll go out on a limb here and assume that work this important is exhausting and demanding both professionally and personally. What practices or habits do you rely on to stay well, healthy, and happy?
This work is exhausting and demanding, and I can tend to be a workaholic. I have never achieved the perfect balance between work, play, and family time. I try to get regular exercise and make it a practice not to talk about my cases at home unless my wife and kids ask me about them. These days, I get great joy from my new puppy, a Portuguese water dog named Bernie, the first dog I have ever owned.
Who are your heroes?
I have many heroes, but the ones that I admire most tend to be “unsung” heroes. Tom Geraghty would be at or near the top of my list. He’s been Director of the Clinic at Northwestern Pritzker School of Law for forty years. He taught me most of what I know about juvenile and criminal law and clinical teaching. Stephen Harper, a former public defender from Miami, whose work on capital cases and as a juvenile defender made him the right person at the right time to lead the effort to abolish the juvenile death penalty, is another. And a third would be Clyde Kennard. Clyde was an African–American veteran who was framed for a burglary he did not commit in the late 1950s in Mississippi and sentenced to seven years hard labor in Parchman, the state’s maximum security facility. His real “crime” was that he insisted on trying to enroll in Mississippi Southern College (now the University of Southern Mississippi) at a time when segregationists were making their last stand against integration. I was fortunate to work on his posthumous exoneration and to learn about a civil rights hero whose story is often overlooked.
Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.
Author Andrew P. Rodovich delivers a compelling case file centered around the issue of self-defense. In this personal injury case, the plaintiff, William Strange, drinks at a local bar and then believes he is entering his friend David Cunningham’s home. However, to William’s surprise he walks into the defendant, James Wrigley and his wife Kathy’s home instead. James shoots him twice, claiming self defense. Now, William is suing to recover for his injuries. This case file is a good practice for the beginning student in developing basic trial skills.
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NITA would like to take a moment to congratulate faculty and program director Whitney Untiedt in her recent achievement as Attorney of the Year. Whitney’s work on behalf of children in Florida’s prison lead her to this recognition. She is partner in the Miami office and Akerman’s Director of Pro Bono Initiatives AM Holt. You can read the full article on Whitney and this honor from the Daily Business Review here.
Written by guest blogger Judge McGahey
It’s been said that trials are part of a truth-seeking process. And certainly those of us involved in trial advocacy like to think that the process works and that the truth comes out in the end. But every one of us is well aware that sometimes juries and judges reach decisions that we don’t understand or that we even know are flat-out wrong. When that happens, we may ask ourselves Pontius Pilate’s question: “What is truth?” For this month’s review, I’ve chosen a film that explores that question in ground-breaking ways, a film whose name has become synonomous with the difficulty of establishing the truth. The film is Rashomon (1950), simply one of the greatest movies ever made – and a movie that every trial lawyer must watch.
As Rashomon opens, a Woodcutter and a Priest are taking shelter from the rain. They are joined by a character called the Commoner. The Woodcutter and the Priest begin talking about the recent trial of a bandit where both testified as witnesses. The bandit (brilliantly portrayed by the great Toshiro Mifune) has been accused of accosting a samurai and his wife who are traveling through the woods and of killing the samurai and sexually assaulting the wife. In flashbacks, we first see and hear the bandit’s version of the story. Then we hear the wife’s story. Then we hear the samurai’s story, through the intervention of a medium. Each story has similar elements, but each story is radically different from the others, presenting a mystery as to which – if any — is true. And as we are wrestling with these three distinct and contradictory versions of the truth, we find out that the Woodcutter has yet a fourth version, which he chose not to tell at the trial because he didn’t want to get involved. The resolution of the film is a small message of hope in the face of such confusion and cynicism.
Rashomon was directed by, Akira Kurosawa, one of the greatest directors in the history of film. Kurosawa was a genuine genius and his brilliance is obvious throughout the movie in such things as the use of light, the pacing, the use of only three simple sets. Kurosawa had his actors and crew live together during filming. Despite their pleas, he refused to tell the actors which version of the events was “actually” the truth, since determining “actual” truth was not his point.
Rashomon was a breakthrough movie for Kurosawa, the first to bring him serious recognition outside of Japan. It unexpectedly won the Golden Lion (top prize) at the Venice Film Festival in 1951 and an honorary Oscar in 1952, before there was a category for Best Foreign Film. Over the years, it has become recognized as the classic that it is and has spawned numerous other films and television programs that are either homages or direct copies, including episodes of Star Trek: The Next Generation and Homicide: Life on the Street – and the truly awful The Outrage (1964), which stars Paul Newman as a Mexican bandit. The phrase “Rashomon effect” has entered the English language to describe the difficulty of ascertaining objective truth based on subjective evidence.
The “truth-seeking” aspect of Rashomon is one of the reasons that the film is a must for trial lawyers. But for those of us who work in the NITA world, it’s also important for what it says about the power of storytelling. In the past several years, there’s been an emphasis on storytelling and how it affects our presentation at trials. It’s a rare NITA program that doesn’t include some discussion of the importance and power of telling an effective story. Rashomon speaks to this aspect of trial advocacy, too, since it may be the greatest single example of how subjective stories, powerfully told, can influence what is perceived to be true.
Do not be deterred by the fact that Rashomon is subtitled. You’ll be immersed in its brilliance so quickly that that won’t matter a bit. And it’s a movie which rewards multiple viewings; I’ve probably watched it close to 50 times. As a trial lawyer and teacher of advocacy, every time I watch Rashomon, I’m struck by a line from the Commoner as he tries to comprehend what he’s been told: “Just think. Which of these stories do you believe?”
That’s what every trial lawyer is asking every jury to tell us – and is yet another reflection of the agony of Pilate’s question.
NITA urges all lawyers to deeply give in pro bono service, supporting the success of our justice system. Our system means less as fewer people gain access to it. We all know that:
NITA too invests in our own style of “pro bono.” We do not practice law, and so we don’t use the phrase “pro bono” for our work. We use the phrase “public service”. NITA strategizes endlessly to include in our training the lawyers who themselves earn very little for the sake of serving the indigent or legal services clients. We want also to reach more lawyers, to extend farther than our resources make possible.
Those lawyers need access to the finest advocacy training that can be found. To NITA.
And thus, NITA is known not only as the “premier provider of learning-by-doing for the legal profession.” It is also the provider that serves the public service part of our mission by reaching across the legal profession and including lawyers in financial need who serve clients who receive pro bono legal advice.
You and NITA. As you serve your own pro bono obligations, remember that we serve ours also, at our own cost. We cover as much as we can of the costs. But we need help. We seek partners for particular programs to help us fund them, and without that partner the program may not go forward. We seek donations for these reasons.
Think of us as the premier provider with the deepest heart. Think of us as you find bar groups and others who can partner with us to help us in our public service. Think of us as the training group that focuses hard on the entire profession.
Do pro bono. Do NITA. We match.
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.
NITA’s Goals are to: