Saturday, June 30, 2018

What have educators learned from Brendan Dassey’s conviction? [updated with a postscript]

Years before Making a Murderer hit the airwaves, I explained in my 2012 book, Tried and Convicted, how the police indoctrinate kids at an early age in order to win their trust.  (Think Deputy Friendly.)  This, in turn, pays dividends down the road.

Many of my clients—not only my 17-year-old clients whom Wisconsin considers “adults” for criminal prosecutions, but much older clients as well—tell me how they’re in utter disbelief that they’re sitting in jail facing criminal charges.  At the time of their interrogations—or, as the police call them, “interviews”—the clients were convinced that the police were on their side and were there to help. 

I explain in my forthcoming book, Anatomy of a False Confession, that while suspects like Brendan Dassey don’t realize it at the time, the police use several tricks of the interrogation trade to lull their targets into this delusional state.  And in a recent radio interview, a teacher called in and said how horrified she was by what Mark Wiegert and Tom Fassbender did to Brendan Dassey.  She explained: “I could see that happening to any one of my students.  Being brainwashed like that.  I thought it was shameful.”

So what, if anything, are educators doing to protect their students from these government agents who lie and deceive to get what they want?  I suspect that, in most cases, they aren’t doing anything.  However, I am aware of at least two different educational reactions to police overreaching—how common each is, I don’t know.

First, the Washington Times reports that one high school in South Carolina is giving students a summer reading list with an anti-police bent: “Angie Thomas’ The Hate U Give and All American Boys, by Jason Reynolds and Brendan Kiely.”  I haven’t read these books and likely won’t get the time to do so.  However, based on the “livid” response from the police, I suspect I’d like them.  The cops are allegedly outraged: “It’s almost an indoctrination of distrust of police and we’ve got to put a stop to that.”

Far from “put[ting] a stop to that,” schools and school boards should make this type of reading mandatory.  (I can’t comment on the specific books mentioned above).  This is necessary not only to protect innocent students, but also those that are technically guilty of something under our far-reaching “party to a crime” statutes and other “guilt by association” laws and prosecutorial tactics.  And even for those students who have, in fact, violated a law, the direct and collateral consequences today are so life-ruining that the punishment often outweighs the harm, if any, caused by the student’s illegal act.  In short, all students have certain constitutional protections, and they should know about them.    

But other schools are taking a different approach.  I recently read in the Kenosha News that Officer Friendly is still hard at work, building trust with the city’s youth.  “We see nearly 10,000 kids a year from [the] Unified [School District],” Officer Friendly said.    His message to these 10,000 kids is as clear as it is self-serving: “I don’t want you guys to be afraid to talk to police officers.”  Of course he doesn’t.  The police know that if trust is built early, the dividends will flow for years to come.

I practice adult criminal defense, so the only children I represent are 17-year-old defendants.  (Again, these children—and in some cases even younger children—are considered “adults” in Wisconsin, but only for purposes of prosecuting them; they are not treated as adults in other situations, e.g., they are not legally capable of consenting to sex.)  Given my adult-focused criminal defense practice, I don’t know much about the child brain or how to deal with the precious little cherubs that are left in the charge of our educational institutions.  Nonetheless, educators should consider incorporating some of the South Carolina high school’s approach.  At a minimum, they should consider using age-appropriate language to tell kids, should they find themselves in a cop’s cross-hairs, that:

  1. You have the right to remain silent, or to say that you don’t wish to make any statements, or to say that you would like to talk with a lawyer first.
  1. Don’t talk with the intention of lying your way out of trouble.  Don’t even tell a little “white lie.”  In some circumstances, you can be charged criminally for lying to the police, even if you’ve done nothing else illegal.  Instead of lying, see #1, above. 
  1. On the other hand, the police are allowed lie to lie to you.  (Yes, it's not fair, but neither is life.)  They can lie about why they want to talk to you.  They can lie about what they are investigating.  They can lie about the seriousness of what you are facing.  They might lie and tell you it’s not serious, as long as you confess to it upfront.  They might lie and tell you it’s incredibly serious, but they are on your side and will protect you—as long as you talk to them.  They might tell you both lies in the same interrogation, as they did to Brendan Dassey.  They can lie to you about almost anything they want.  Not only are they allowed to lie, but they are actually trained to lie.   
  1. The police are government agents.  They are an important part of our society and do many good things.  You should treat them with respect.  But you should also treat them with a healthy dose of skepticism and even a little bit of fear.  They have great power, and they are not always on your side.
  1. It’s possible that you have committed a crime without even knowing it.  Some crimes don’t require a “victim” at all.  Other crimes are called “strict liability crimes,” so you could be facing criminal charges (or juvenile proceedings, as they case may be) based on a mistake that you made or a mistaken belief that you held.  Sometimes you can be criminally prosecuted for something that someone else did.  Other times you could be facing a crime for doing something that was not morally wrong in any way.  And anything you say to the police, even if you think you are helping yourself, could be used against you in ways that you can’t even imagine when you’re saying it. 
If Brendan Dassey knew some of this when Teresa Halbach went missing, he probably wouldn’t be in prison today.

Postscript:  False confession expert and psychology professor Larry White just sent me this article from the New Yorker.  There is yet a third approach that educators are taking.  At some schools the teachers are getting trained in interrogation methods so they can get in on the act themselves!  "You looked left when answering?  You're guilty!  Wait, or is right guilty?  You slouched in your chair -- that's it; you did it!" 

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