‘Making A Murderer’: Could Brendan Dassey Confession Have Been Suppressed?

Although former defense lawyer Len Kachinsky says he made a valiant attempt to suppress Making a Murderer subject Brendan Dassey’s 2006 confession, his argument was not based on case law used by Dassey’s current attorneys.

Kachinsky told the Inquisitr on September 11 that his inability to convince Judge Jerome Fox that Dassey’s confession was involuntary lied largely in the absence of a law requiring adults to be present when juveniles are questioned by police. The now municipal judge is correct. There is no such law on the books in the state. In Wisconsin, police must only attempt to notify a juvenile’s parents or guardian, but can commence with interrogation without an adult in the room. That meant Kachinsky was forced to find case law to support his claim.

Not long before Dassey’s arrest, Wisconsin passed a law mandating that custodial interrogations of minors must be videotaped, which is why the March 1 and subsequent meetings he had with Calumet County Sgt. Mark Wiegert and Wisconsin Investigator Tom Fassbender are now all over the internet.

There were other meetings that were not videoed, as shown in Making a Murderer. Two happened at Dassey’s high school, and the first was audio recorded. Police decided the quality of the recording was substandard so they pulled Dassey out of class again. Both sessions have been questioned by Dassey supporters. But the video mandate only applies to interrogations that happen at places of detention.

Was Brendan Dassey telling the truth when he confessed? #MakingAMurderer pic.twitter.com/Z0OwxOWsQD

— Making A Murderer (@MakingAMurderer) February 15, 2016

Like Dassey’s current lawyers, Laura Nirider, Steven Drizin, and Robert Dvorak, Kachinsky focused his motion to suppress on the March 1 interrogation, after which Dassey was arrested. Kachinsky argued that Dassey’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article 1, Sections 8 and 11 of the Wisconsin Constitution were violated. He cited State v. Jerrell, the 2005 Wisconsin Supreme Court case that established the videotaped interrogation law, to support his argument.

Under Jerrell, police conduct while interrogating a suspect does not need to be egregious or outrageous to be coercive. Subtle attempts to pressure a minor can be considered coercive if they impede the child’s ability to resist. Kachinsky noted that Dassey had an IQ in the 70s and was considered cognitively impaired and highly suggestible.

Fassbender and Wiegert “preyed upon Dassey’s ignorance” by making promises they would “go to bat for him,” Kachinsky motioned the court.

Nirider will make a similar argument later this month in the 7th Circuit Court of Appeals. It’s the same claim she made earlier this year when a three-judge panel upheld the 2016 ruling that Dassey’s confession was illegally obtained.

The Northwestern University law professor likely will not cite Jerrell, however. She presents several others. And while some would not have been used by Kachinsky at trial because they pertain to a habeas corpus appeal, others may have better complemented Jerrell.

One is Blackburn v. Alabama, the 1960 United States Supreme Court case involving a mentally incompetent man who, after a nine-hour interrogation, signed a confession prepared for him by a sheriff’s deputy. The court ruled while Blackburn had periods of stability in his life, he was incompetent when he signed the document.

Nirider also argues that Wiegert and Fassbender made false promises to Dassey, including the assurance that the truth is the only thing that would “set him free,” and that the ordeal would end as long as he told the “truth.”

The 1996 7th Circuit case Sprosty v. Buchler highlights a similar situation, Nirider claims.

Was Brendan Dassey telling the truth about what he saw? #MakingAMurderer pic.twitter.com/ll8Ejh36XN

— Making A Murderer (@MakingAMurderer) January 21, 2016

In that case, Larry Sprosty, also of Wisconsin, pleaded no contest to first-degree sexual assault, two counts of sexual exploitation of a child, and one count of child enticement after police promised him that a burglary charge in another state would be dropped. Nirider also cites U.S. v. Stadfeld, which states that false promises “impede the suspect in making an informed choice as to whether he was better off confessing or clamming up.”

Among others that may have been used to suppress the Dassey confession at trial are the Supreme Court cases Mincey v. Arizona, Spano v. New York, and Bram v. U.S.

Then there are the 7th Circuit cases, Etherly v. Davis and A.M. v. Butler. In Butler, the defendant, an 11-year-old boy with no criminal history, gave various accounts of how an 83-year-old woman was stabbed to death after police prodded him for the truth. It was an interrogation like that of Brendan Dassey, Nirider says.

“During A.M.’s interrogation, police touched his knees – just like Wiegert touched Brendan’s – and, echoing Brendan’s understanding that he was going back to school, falsely said that if he confessed… he could go home in time for his brother’s birthday party,” Nirider writes.

“Like Brendan, no physical evidence tied A.M. to the bloody murder; and like
Brendan, A.M. recanted as soon as his mother was allowed into the interrogation
room. There, this Court granted habeas relief, noting that these tactics
‘could easily lead a young boy to ‘confess’ to anything.'”

Dassey was interrogated for more than three hours without a lawyer or parent present. His mother, Barb Tadych, says police told her it was in her best interest to remain in a waiting room during the March 1 interrogation because investigators expected her son to tell a “gruesome” story.

Nirider is scheduled to argue the case in front of eight 7th Circuit judges at a September 26 en banc hearing. Deputy Solicitor General Luke Berg will argue for the State of Wisconsin.

Kachinsky claims he laid the legal groundwork for Dassey’s team, saying he preserved their ability to appeal.

“Even though Dassey and I parted ways on how he should proceed, I did my job and enabled Dassey’s future attorneys to do theirs,” Kachinsky said in a 2016 Bustle report.

Kachinsky was removed as Dassey’s public defender after five months, when the court learned he arranged for Dassey to give a written confession to his investigator. He then allowed Wiegert and Fassbender to meet with his client without counsel. While footage from those meetings were included in Making a Murderer, the recordings were suppressed at Dassey’s trial. Kachinsky was replaced by Mark Fremgen.

Dassey is serving a life sentence with the possibility of parole in 2048. Steven Avery is not eligible for early release.

[Featured Image by Eric Young/AP Images]