Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance

By LaVigne, Michele; Miles, Sally | Albany Law Review, Spring 2019 | Go to article overview

Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance


LaVigne, Michele, Miles, Sally, Albany Law Review


INTRODUCTION: MAKING A MURDERER?

The 2015 Netflix documentary "Making a Murderer" was a worldwide sensation. (1) The ten-part series told the story of Steven Avery of Manitowoc, Wisconsin, and his nephew, Brendan Dassey, who were convicted of the gruesome 2006 homicide of Teresa Halbach. (2) The series raised serious questions about whether the two were actually guilty or the victims of law enforcement malfeasance. (3) Viewers were divided on Avery, with as many saying he was guilty as not guilty. (4) Viewers were not nearly as divided, however, about Avery's sixteen-year-old nephew, Brendan Dassey. (5)

Brendan was a developmentally-delayed special education student whose treatment by all parts of the criminal justice system, including his own attorney, was at best an embarrassment, and at worst, the direct cause of a grotesque wrongful conviction. (6) For many, the most disturbing aspect was the footage of eager law enforcement extracting a "confession" from Brendan in ways that were both comical and cynical. (7) One commentator likened the interrogation to training a new puppy. (8) The most memorable part of the interrogation came when investigators harangued Brendan about what was done to Ms. Halbach's head. Brendan proceeded to guess: Cut off her hair? Punched her? Cut her throat? When he said he could not remember anything else despite investigators' insistence, they blurted out: "Alright, I'm just gonna come out and ask you, who shot her in the head?" Brendan replied, "he [Avery] did." (9) When asked why he had not told them, Brendan said, "[c]ause I couldn't think of it." (10) Later, after Brendan had "confessed" to raping and killing Ms. Halbach, he asked if he could return to school because he had "a project due in [sixth] hour." (11)

Not surprisingly, the full statement is filled with contradictions and physical impossibilities. Nevertheless, law enforcement cobbled together enough of a confession to form the basis of the charge that Brendan had assisted Steven Avery in killing Ms. Halbach. (12)

Despite glaring overreach by law enforcement (the series only captured a miniscule fraction), the trial court found that Brendan's confession was voluntary and it was admitted as the primary piece of evidence in his trial. (13) He was convicted as a party to the homicide and sentenced to life imprisonment. (14) The voluntariness of Brendan's confession was the primary issue in an unsuccessful state appeal and federal habeas corpus action. (15) Brendan continues to serve a life sentence. (16)

The co-authors watched "Making A Murderer" with both personal and professional interest. Of course, we were taken by the drama, though we knew the outcome for Avery and Dassey long before the show ever appeared. But we were particularly intrigued by the interrogation of Brendan Dassey. More specifically, we were curious about the linguistic aspects of the interrogation. We both have professional interest in language impairments, i.e., deficits in language and language usage. (17) We are well aware that despite the innocuous name, language impairments can be serious disabilities with potentially catastrophic effects. We are also aware that individuals with language impairments are substantially overrepresented in the criminal and juvenile justice systems. (18) Though the documentary never came out and said that Brendan had a language impairment (throughout the program and the criminal case itself, there are references to Brendan's intellectual deficits and borderline IQ, but there are few specifics), we were fairly certain he did. And if he did, we were certain it would have had a profound effect on the interrogation.

Our first step was an easy online search of court records, where we found documentation that Brendan did indeed have a severe language-based specific learning disability and multi-faceted language impairment that placed his communication and processing skills in the lowest percentiles of all juveniles his age. …

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