Unless you spent this past winter hibernating like a bear, you’ll remember Making a Murderer, the ten-part Netflix documentary that had everyone talking for months. Since 2008, the Bluhm Legal Clinic, Center on the Wrongful Convictions of Youth (CWCY) of the Northwestern Pritzker School of Law has represented Brendan Dassey, the young man whose coerced false confession was the subject of Episode 10. NITA Trustee Tom Geraghty’s colleagues in the Bluhm Legal Clinic, Steve Drizin and Laura Nirider, have played key roles in Brendan’s case for the past eight years. They entered the case after Brendan was convicted and have represented him on appeal in Wisconsin state courts and now in a habeas corpus proceeding in the federal district court in Milwaukee. Tom signed on as a member of the Dassey team and has had the privilege of working with Steve and Laura on Brendan’s behalf. Tom joins us today for a round of “Asked and Answered,” giving us an expert insider’s perspective on Brendan’s case.
How did the system fail Brendan Dassey?
Brendan was the unfortunate victim of one of the most egregious failures of defense counsel that I have ever seen. From the beginning of his case, his first lawyer, Leonard Kachinsky, actively worked against Brendan’s interests by publicly (and wrongly) proclaiming his guilt and by taking steps to coerce Brendan to falsely confess. Thus far, the system has failed Brendan by its unwillingness to recognize the prejudice that Brendan suffered as the result of the conduct of his first lawyer. I should also add that Brendan should never have been tried as an adult. His age and his intellectual disability should have been taken into account by prosecutors. If tried anywhere, Brendan should have been tried in juvenile court.
Will you please explain the Reid Technique and its role in Brendan’s conviction?
The Reid Technique, as understood (sometimes inaccurately) by many in law enforcement, permits and encourages police officers to use a variety of high-pressure tactics to get suspects to confess. Suspects are isolated from family, cabined in small interrogation rooms, repeatedly accused of committing the crime, told that the evidence against them is overwhelming (even if there is no such evidence), and then are offered two choices, both of which involve an admission of guilt but one which provides the suspect with a moral or legal excuse and the other which paints the suspect as a monster. Over time, these tactics may be effective at getting confessions from the guilty, but they also work to get confessions from the innocent. They should never be used against vulnerable suspects like Brendan, whose youth and cognitive disabilities made him an easy target. When used against such suspects, these can and do lead to false confessions. Basically, such suspects are more compliant and suggestive and are easily convinced to tell interrogators what they (the suspects) think that the police investigators want to hear. This is what happened to Brendan.
For example, in Brendan’s case, he was told that it would be “best” for him to confess and promised that the officers would “help” him, and not “leave him high and dry” if he confessed. Over and over again, he was falsely told by police investigators that they “already knew” that Brendan was guilty and that they could only “go to bat” for him with the District Attorney and others in law enforcement if he confessed.
Once a suspect makes an admission, interrogators are trained—even by Reid—to let the suspect tell the narrative of the crime. Reid recognizes that if interrogators feed the suspect the details of their investigation and the suspect adopts them in his or her confession, the confession is worthless as evidence. Over and over, Brendan’s interrogators fed him information about the crime (e.g., that the victim was shot in the head in the garage); that her cell phone, camera, and purse were found in the burn barrel; that Steven Avery went under the hood of the car, etc. This process is called “contamination.”
How did you become involved in the case?
My colleague, Steve Drizin, who is a nationally known expert on false confessions—especially false confessions involving youth—asked me to join his team after he was contacted by Wisconsin lawyers who were concerned that Brendan may have been wrongfully convicted and that he had received ineffective assistance of counsel. One could say that I came on as a “senior trial consultant” to help out with some of the direct and cross-examinations of witnesses during Brendan’s post-conviction hearing.
What systemic changes need to be made to prevent another Brendan Dassey situation from happening again?
Thanks in large measure to the work of Steve [Drizin] and Laura [Nirider], attention is being focused on the dangerous tactics used by the police who interrogated Brendan. Steve and Laura have been speaking around the country about Brendan’s case, seeking to draw attention to the tragic consequences of coercive and improper interrogation techniques sometimes employed against vulnerable suspects. They have prepared a YouTube presentation on the Dassey case, which can be accessed here. I urge you to view this presentation. It is a game changer. I’m very proud of the work that our CWCY has done in this important area.
Any predictions on what lies ahead for Brendan?
Although I cannot predict what will happen, I am hopeful that we will soon receive a favorable decision from the judge presiding over Brendan’s federal habeas case in Milwaukee. The brief that Laura wrote in support of the habeas petition is one of the best briefs I have ever read.
What are your thoughts on how Making a Murderer generally portrayed the case?
I limit my comments to the portions of Making a Murderer that focus on Brendan’s case. In those segments, the filmmakers did an excellent job of bringing to light the injustice that was done to Brendan.
How and when did you begin your close association with NITA?
I was a student in the second national session (1973). I had the privilege of having Prentice Marshall as my instructor and of meeting many of those who were involved in NITA’s founding (Jim Carrigan, Bob Hanley, Ken Broun, Bob Keeton). My dear friend Patti Bobb (and former Chair of NITA’s Board of Trustees) was also a student in the 1973 session. The session was intensive and long. It was one of the best learning experiences I’ve ever had. In 1977, Ken Broun asked me to take the lead in organizing NITA’s Midwest regional session, which was held at Northwestern for twenty-five years until moving to Loyola University of Chicago. A few years back (actually more than a few years), I was asked to join NITA’s Board of Trustees. NITA is a very special organization, with its exemplary corps of volunteer faculty, program directors, and its dedicated and very talented and effective staff in Boulder. I’ve been honored to have been a part of it.
You’ll soon be stepping down from your position as Director of the Legal Clinic and Associate Dean for Clinical Education at Northwestern (announcement here), as well as dialing down your NITA Board of Trustees status from active to emeritus. What are you looking forward to doing with your new spare time?
I am not retiring from teaching or the practice of law. I am just scaling back my administrative responsibilities of leading the Clinical Program. I plan to fill the time with more teaching and writing. I’m also involved in a project to improve Cook County’s criminal justice system, an effort that will more than fill the time that I have been devoting to administration. One important aspect of this effort will be to encourage NITA, law firms, and our local government to devote more resources to the training of lawyers (prosecutors and defenders) who work in our criminal justice systems. This is where most cases are tried. NITA has been a leader in this effort.
In your many years of teaching and service, what’s the one thing you have strived to bring to the legal profession?
The practice of law is more than a business—to me, its central focus is (or should be) providing the best possible service to individual clients. This means developing ongoing and rewarding professional relationships with clients and colleagues that underscore the importance of the function that lawyers perform in our society. Not enough is said about this vital role of the profession.
There’s a reason people say that “hindsight is always 20/20.” Looking back over your career, if you could go back and give yourself one piece of advice when you were just starting out, what would it be?
Looking back, I’ve benefitted immensely from collaborations with outstanding lawyers (within NITA and elsewhere). An example of this is the association that I’ve had and continue to have with my colleagues at Northwestern, with clinical teachers around the country and around the world, and, especially with my old friends and outstanding teachers who were so helpful with the Midwest Regional session of NITA. Perhaps the bottom line is, find good people to work with and value those relationships.
Why do you teach?
I love it. Education is the best long-term investment.
What country would you most like to visit and why?
I have special affection for Ethiopia, where I’ve long worked with legal educators.
Who are your heroes?
Jimmy Carter. Pope Francis. Minnie Minoso.
Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.
NITA Board of Trustee and Attorney, Ben Rubinowitz, is one of two attorneys representing media mogul Melissa Rivers, daughter of Joan Rivers, who passed away in August 2014. Melissa filed a malpractice suite and discusses the outcome of her settlement in this exclusive Entertainment Tonight video clip. Rubinowitz has served as a NITA faculty member for more than 70 programs and is the Program Director for our newest program, DRILLS, a Witness Examination Boot Camp. We at NITA would like to congratulate Ben on this amazing settlement for Melissa Rivers and her family during this tragic time. If you would like to watch the video please click here.
Earlier this year, NITA sent two trainers and crates of textbooks to the West African nation of Liberia to lend its support of an advocacy program organized by Lawyers Without Borders (LWOB). A group of attendees, comprised of prosecutors, defense lawyers, judges, and police officers, attended the five-day program, held January 11–15 in the capital city of Monrovia.
The program was designed to sharpen the trial and other human trafficking related skills of attendees. NITA trainers Daniel Foster and Judge Angel Kelley Brown were among the senior trainers leading exercises modeled after NITA’s “learning by doing” methodology. Because Liberia’s legal system is rooted in the American common law tradition, there is considerable crossover in what judges, lawyers, and police in both countries do and how they do it. “I truly believe—and plenty of Liberian judges and lawyers have echoed my sentiments—that this kind of program helps to promote the rule of law in Liberia and considerably strengthens the justice sector,” said Foster. “This program is a great example of how the long term sustained support that the LWOB/NITA collaboration provides can considerably impact justice sectors in the developing world.”
These advocacy skills drills were interspersed with special modules on legal ethics and human trafficking, areas of particular concern for law enforcement and officers of the court in this emerging democracy. “[Liberians’] passion for the fight against human trafficking is inspiring. [They] equally appreciate the notion that the protection of individual rights begins with legal advocacy in the courtroom,” said NITA volunteer instructor Angel Kelley Brown. “There is a natural affinity and connection between the U.S. and Liberia, a country founded by freed slaves from America. I learned more from [our program attendees] than I could possibly teach them.”
NITA’s alliance with Lawyers Without Borders dates back to 2007 and is based on the organizations’ shared mission to support the rule of law in emerging democracies around the world.
In this guide, Jury Trials Outside In, First Edition, author Dr. Melissa M. Gomez speaks to the psychology of all people involved in a case and how the psychology affects the manner in which we make decisions and communicate at trial. She explains that each person influences the way a case is presented and received by a jury including attorneys, judges, and witnesses. Furthermore, this guide helps attorneys take a step back to address the big picture of a case and examine with another viewpoint. It serves as a helpful companion to both the novice and the experienced litigator as well as anyone who is intrigued by the psychology behind a jury trial.