Making a Murderer: Children’s Susceptibility to Giving False Confessions

making-a-murderer-1200x713

During the last few months, many have watched the Netflix series Making A Murderer, which was released last December. The documentary project chronicles the story of Steven Avery, who was imprisoned for an incident with convictions in both sexual assault and attempted murder. After 18 years of being confined, DNA advances helped prove Avery’s innocence, leading to his exoneration in 2003. Two years later, however, Avery was arrested and eventually convicted for a different crime, the murder of Teresa Halbach. Making A Murderer follows the progression of that second crime and questions the validity of the criminal justice system.

A key component in securing Avery’s conviction for Halbach’s murder was the alleged confession of his then 16 year-old nephew Brendan Dassey. For his first interrogation, Brendan was pulled out of school. He was then questioned alone for hours by Department of Justice investigator Tom Fassbender and Calumet Sheriff’s Sergeant Mark Wiegert, without access to a parent or an attorney. Clips from several different interrogations of Brendan by those two individuals and an additional investigator, Michael O’Kelly, are included within the series. The snippets not only raise questions regarding the validity of Brendan’s confessions, but they also pose concerns about the examination tactics used on minors.

During the course of several interviews, the video clips reveal that Brendan changed his story several times. Sometimes he denied any wrongdoing, while other times agreeing to his participation in Halbach’s murder. Part of this wavering might be attributed to the investigators’ leading questions. An example is when Fassbender and Wiegert were trying to elicit an important detail of the murder: that the victim had been shot in the head. After continually asking Brendan what he and Avery did to Halbach, the investigator becomes more specific and asks what was done to her head. Brendan appears to be guessing at what he is supposed to answer, first offering that they punched her and cut her. However, after growing impatient, one of the detectives bluntly asks Brendan who shot her in the head. After Brendan blames his uncle, he is asked why he had not just stated that, to which he responds, “[be]cause I couldn’t think of it.”

At a separate interrogation with O’Kelly, Brendan is again pressed for details. Although he initially denies any wrongdoing, Brendan eventually begins to “cooperate.” During that time lapse between Brendan’s denial and confession, O’Kelly stresses that Brendan cannot be helped unless he tells the truth, asks whether Brendan wants to spend “the rest of [his] life in jail,” and emphasizes the need for Brendan to be sorry for what he did. Additionally, O’Kelly not only laid out photographs related to the crime on the table in front of Brendan, but he also instructed Brendan to draw pictures about what allegedly occurred during the crime. All of these actions, especially in the aggregate, create great pressure for a child to provide his “confession.”

One might contend that a 16-year old teenager is old enough to understand the repercussions of such grave admissions and thus will not divulge any false information. Unfortunately, that is not the case. Rather, young and even teen-aged children are more susceptible to giving false confessions than adults. In addition to being more vulnerable to succumbing to interrogation tactics, they are also more likely to want to please authority figures by telling them what they think they want to hear. Furthermore, many times children’s desire to go home or talk to their parent is leveraged against them. In one of his examinations, one of the interrogators begins by stating Brendan’s mom had told him her son would be honest with them and that Brendan should not “let [his] mom down.”

Other factors may further increase a child’s propensity to give a false confession. For example, a child’s ability to understand what is happening may greatly impact their willingness to participate. Kids who look exactly the same may have completely different capacities to understand the situation. Age alone does not accurately indicate a child’s comprehension. Children vary widely in their past experiences and their education, which can greatly alter their experience in an interrogation by limiting their comprehension of the interrogator’s vocabulary, for instance. Brendan reportedly has a below average IQ and had never been in trouble of any sort prior to this incident, indicating he was not likely to be savvy with questionings about alleged wrongdoings.

Fortunately, Brendan’s interrogations were videotaped and thus help illustrate the pitfalls of questioning children fairly. When undertaking this feat, it is not only essential to ensure that the child understands his or her Miranda rights—to remain silent and obtain an attorney—but it is equally important to question a child in a manner that does not impose unfair pressures.

Brendan Dassey’s case consequently serves as a reminder that although filming the questioning of a child is extremely important, it is an insufficient safeguard to guarantee that children are protected against self-incrimination or against giving false confessions that are later used against them for their prosecution.

Weekly Roundup

21 Mar 2012, Miami, Florida, USA --- Here's tragic Florida teen Trayvon Martin, who was fatally shot by a self-appointed neighbourhood watch rep George Zimmerman as he walked in an apartment complex in Sanford. The 17-year-old's killing has caused a national outcry and sparked calls for Zimmerman's arrest. Zimmerman has claimed he fired his gun in self defence. Pictured: Trayvon Martin --- Image by © Splash News/Corbis
21 Mar 2012, Miami, Florida, USA --- Here's tragic Florida teen Trayvon Martin, who was fatally shot by a self-appointed neighbourhood watch rep George Zimmerman as he walked in an apartment complex in Sanford. The 17-year-old's killing has caused a national outcry and sparked calls for Zimmerman's arrest. Zimmerman has claimed he fired his gun in self defence. Pictured: Trayvon Martin  --- Image by © Splash News/Corbis

21 Mar 2012, Miami, Florida, USA — Here’s tragic Florida teen Trayvon Martin, who was fatally shot by a self-appointed neighbourhood watch rep George Zimmerman as he walked in an apartment complex in Sanford. The 17-year-old’s killing has caused a national outcry and sparked calls for Zimmerman’s arrest. Zimmerman has claimed he fired his gun in self defence. Pictured: Trayvon Martin — Image by © Splash News/Corbis

Four years ago today Trayvon Martin was tragically shot. The Marshall Project commemorates him by curating some of the best reporting surrounding his death, including incisive commentary in The Atlantic by Ta-Nehisi Coates. In “Fear of a Black President” Coates writes on racial exceptionalism and the polarizing effect of President Obama weighing-in:

“Before President Obama spoke, the death of Trayvon Martin was generally regarded as a national tragedy. After Obama spoke, Martin became material for an Internet vendor flogging paper gun-range targets that mimicked his hoodie and his bag of Skittles. (The vendor sold out within a week.) Before the president spoke, George Zimmerman was arguably the most reviled man in America. After the president spoke, Zimmerman became the patron saint of those who believe that an apt history of racism begins with Tawana Brawley and ends with the Duke lacrosse team.

The irony of Barack Obama is this: he has become the most successful black politician in American history by avoiding the radioactive racial issues of yesteryear, by being “clean” (as Joe Biden once labeled him)—and yet his indelible blackness irradiates everything he touches. This irony is rooted in the greater ironies of the country he leads. For most of American history, our political system was premised on two conflicting facts—one, an oft-stated love of democracy; the other, an undemocratic white supremacy inscribed at every level of government. In warring against that paradox, African Americans have historically been restricted to the realm of protest and agitation. But when President Barack Obama pledged to “get to the bottom of exactly what happened,” he was not protesting or agitating. He was not appealing to federal power—he was employing it. The power was black—and, in certain quarters, was received as such.”

In case you missed it, the Southern Poverty Law Center released a report on February 17th, More Harm Than Good: How Children are Unjustly Tried in New Orleans on the misuse of prosecutorial waiver in Orleans Parish. The report makes specific recommendations to the NOLA district attorney’s office for how waiver of jurisdiction should be handled and criteria to be considered in the process. These guidelines could be heeded nationwide.

“The Orleans Parish district attorney is prosecuting children as adults in unprecedented numbers. Although nothing in the law requires Louisiana prosecutors to charge children as adults, District Attorney Leon Cannizzaro chooses to transfer children to adult court in almost every possible instance. He transfers children who have no prior delinquency record or played a minor role in the alleged crime. He transfers children who have a mental illness or developmental disability. He even transfers children accused of nonviolent offenses. Some of the children he transfers are found innocent of any crime – but only after enduring the stress and danger of the adult system.

Prosecuting children as adults is, in fact, Cannizzaro’s default practice. Between 2011 and 2015, his office has transferred more than 80 percent of cases involving 15- and 16-year-olds charged with certain offenses where there was an option to prosecute in either juvenile or adult court. Under state law, a judge has no say in these decisions. Discretion rests solely with each parish’s district attorney.

Cannizzaro has sent 200 children to adult court since assuming office in 2009, but it has not made us safer. Arrests for offenses eligible for transfer to adult court are up. Recent data also show that teenagers prosecuted in Louisiana’s juvenile justice system are less likely to reoffend than those prosecuted in the adult system. The district attorney’s practice is wrong for New Orleans’ children, their families and the community. It does more harm than good.”

[…]

“The district attorney’s office should always consider:

  • The age, mental and physical maturity, and sophistication of the child.
  • The nature and seriousness of the alleged offense to the community and whether the protection of the community requires transfer.
  • The child’s prior acts of delinquency, if any, and their nature and seriousness.
  • Past efforts at rehabilitation and treatment, if any, and the child’s response.
  • Whether the child’s behavior might be related to physical or mental problems.
  • Techniques, programs, personnel, and facilities available to the juvenile court which might be competent to deal with the child’s particular problems.

These findings – the same ones that judges in transfer hearings are legally required to make – are central to a transfer decision, whether it is made by a judge or by a prosecutor.”

 

Candidates Light on Children’s Issues

“The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief. Hence there can be yet no successful method of communicating intelligibly a sound method of self-analysis for one’s belief.”       –Professor John Henry Wigmore, regarding legal burden of proof

Jurist John Henry Wigmore described the efforts made by courts to define the threshold at which one is convinced “beyond a reasonable doubt” of a disposition of guilt. What Professor Wigmore observes is that human belief is not a hard science, and that the factfinder of a case cannot know for certain what has transpired in a given case. Human belief is then difficult to measure, define, and is virtually untellable. As we weigh the policy statements of the presidential candidates, watch the debates, and pour over election analysis, this quote continues to ricochet around in my brain. One must ask oneself, what will convince me that this candidate can assume the role of American president?

Much is at stake this election cycle: a nomination to the Supreme Court, and with it, our political legitimacy, criminal justice reform, possibly a thoughtful re-authorization of the Juvenile Justice and Delinquency Prevention Act (JJDPA), as well as the health of our economy and our country. While as adults we are able to vote for the candidate who best represents our values, political orientation and convictions, children have little agency or rights within our political system and are largely affected by our political choices. As child advocates, it is then important to understand where the candidates stand on issues of education and juvenile justice, among others.

Super Tuesday swiftly approaches. With Donald Trump firmly in the lead after the Nevada GOP primary, his website is absent of content on issues of juvenile justice reform and education, or positions related to children’s rights and welfare. While Marco Rubio also does not address juvenile justice, his education platform includes the prohibition of federally mandated Common Core curriculum, promotes local choice surrounding curriculum, and advocates for charter schools and greater parental choice to better, and innovate within, the American public education system. He also promotes paid leave for new parents, strongly defends heterosexual marriage, and supports anti-poverty programs that prioritize traditional marriage and family values. Ted Cruz holds similar positions to Rubio on marriage and family values.

On the other side of the aisle, the Democratic candidates reclaim family values. Bernie Sanders asserts the need for paid family leave, sick leave, and vacation time. He supports free college tuition at public institutions and refinancing of student loan debt at current interest rates. Hillary Clinton proposes up to 12 weeks of paid family and medical leave and has called for increased access to early childhood education and doubled federal investment in programs like Head Start. She supports debt-free college and also refinancing of student loan debt at current interest rates. It is unclear how either candidate will ensure state cooperation with their plans for free or reduced tuition.

Both Democratic candidates offer well-outlined proposals for criminal justice reform, largely mirroring one another and without specific mention of juvenile justice. Shared initiatives include ending privatized prisons, better training of law enforcement, sentencing reform, curbing militarization of police, and investment in rehabilitative alternatives to incarceration for those suffering from mental health and substance use disorders. Sanders takes these initiatives a step further by calling for “taking marijuana off the federal government’s list of outlawed drugs,” in his website’s section on Racial Justice. Clinton announced that she would put $2 billion towards behavioral health support staff to address the school-to-prison pipeline.

There are undoubtedly many other areas of policy which directly affect children — immigration, healthcare, and so forth, and all candidates’ platforms warrant thorough perusal. In the agora of American politics, posterity is largely kicked around for rhetorical exigence, however, our future generations are being, or not being, enrolled in pre-K now. They exist in environments that either increase or reduce their risk of falling into the school-to-prison pipeline now, in schools that may have outsourced discipline to School Resource Officers and local law enforcement. These are exigent issues, and certainly, before we head to the polls, if we don’t have the information that we need, we need to press the candidates and the media with our questions.

Former Supreme Court Justice Harlan included Professor Wigmore’s quote in his concurrence to the majority opinion in In re Winship, which set the beyond a reasonable doubt standard as the legal burden of proof for juvenile delinquency cases. Surely, the American presidency should require our highest standard, however subjective, and our most resolute convictions. Before we vote, we may just need more information.

American Hand Flag

Image from http://www.ilovethatteachingidea.com/images/American%20Hand%20Flag.JPG