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Disappointing News in the Making-a-Murderer saga. (SPOILER ALERTS, but do yourself a favor and binge watch this Netflix docu-series)

In a heavily divided opinion, the 7th Circuit Court of Appeals has affirmed the conviction and thereby approved the abusive interrogation tactics employed against this disabled teen.

A federal appeals court in Chicago narrowly overturned a ruling Friday that could have freed a Wisconsin inmate featured in the “Making a Murderer” series from prison, though one dissenting judge called the case “a profound miscarriage of justice.”

The full 7th U.S. Circuit Court of Appeals reviewed Brendan Dassey’s claims that investigators tricked him into confessing that he took part in raping and killing photographer Teresa Halbach in 2005. Dassey was sentenced to life in prison in 2007 after telling detectives he helped his uncle, Steven Avery, rape and kill Halbach.

The 4-to-3 opinion conceded a ruling wasn’t obvious or easy, but said it came down to whether findings by Wisconsin state courts that Dassey wasn’t coerced into confessing were reasonable.

I’ll be honest; I binge watched this series. If I was a law school professor, I would use the series as the basis for an entire class on criminal defense. I nearly threw my laptop across the room watching the episode wherein the statements are obtained. The police behavior was bad; his defense lawyer was atrocious. Without his “coerced” confessions obtained by investigators (and his lawyer!), there would be no evidence to implicate Brandon.

Here is the statement of his attorneys, Laura Nirider and Steven Drizin:

We are profoundly disappointed by the decision of four judges of the United States Court of Appeals for the Seventh Circuit to reverse two prior decisions and deny relief to Brendan Dassey. Like many around the globe, we share the view of the three judges who wrote, in dissent, that today’s ruling represents a “profound miscarriage of justice.” We intend to continue pursuing relief for Brendan, including through a petition for certiorari to the United States Supreme Court.

Today’s ruling contravenes a fundamental and time-honored position of the United States Supreme Court: interrogation tactics that may not be coercive when applied to adults are coercive when applied to children and the mentally impaired. Indeed, when such tactics are applied to vulnerable populations, the risk of false confession grows intolerably. Unfortunately, this time-worn lesson was ignored today by four judges in the case of Brendan Dassey. We at the Center on Wrongful Convictions of Youth are committed to continuing to fight on behalf of Brendan and others like him to prevent future miscarriages of justice.

The Northeast Innocent Project tweeted:

Another travesty of justice: The 7th Circuit rules against Brendan Dassey. False confessions are a leading cause of wrongful conviction and courts who fail to act in cases like this are failing innocent men and women everywhere.

Dassey’s statement was completely contradicted by any forensics:

 

This matter highlights the danger of exposing juveniles to law enforcement. As I have posted, DO NOT TALK TO POLICE, its is especially true for your children. DO NOT LET YOUR CHILD OR TEEN TALK OR BE QUESTIONED BY POLICE.

In Alabama, Section of 12-15-202 of the Alabama Code enumerates the rights of children in this setting: (a) When a child is taken into custody, the person taking the child into custody shall inform the child of all of the following, in language understandable to the child: (1) The reason that the child is being taken into custody, (2) That the child has the right to communicate with his or her parent, legal guardian, or legal custodian whether or not that person is present. If necessary, reasonable means will be provided for the child to do so, (3) The child has the right to communicate with an attorney. If the child does not have an attorney, one will be appointed for him or her. If the child has an attorney who is not present, reasonable means shall be provided for the child to communicate with the attorney. Before the child is questioned about anything concerning the charge on which the child was taken into custody, the person asking the questions shall inform the child of the rights a second time.

The Alabama Supreme Court held in Ex parte Whisenant, 466 So.2d 1006 (Ala. 1985): “If any one or more of the 12-15-202 warnings are omitted, the
use in evidence of any statement given by the child is constitutionally proscribed.” These rights are sometimes referred to as “Super-Miranda rights.”

In 18 years of practice, I can count on one hand the number of parents who wisely did not let their child speak or be interviewed by law enforcement. However, this past month, one mother refused law enforcement an interview with her teen son; the charges were ultimately dismissed.

(IMPORTANT NOTE: THERE IS NO PARENT-CHILD PRIVILEGE. Anything a child tells a parent can and will be used against them. Therefore a parent could be compelled by court to testify about any statements made by their child to them. Therefore if you get the call, do not talk about the details of the case. Tell your child to remain silent and DEMAND A LAWYER.)

 

 

 

New Interview: “Don’t Talk to the Police! The Fifth Amendment protects both the guilty and the innocent.

Professor Duane is back with a new interview on the Fifth Amendment:









Practically:

His argument, which he’s since expanded into a new book called You Have the Right to Remain Innocent, is that even if you haven’t committed a crime, it’s dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; you may be tricked into saying the wrong things by cops under no obligation to tell you the truth; and your statements to police could, in combination with faulty eyewitness accounts, shoddy “expert” testimony, and sheer bad luck, lead to you being convicted of a serious crime.

He further details the treacherous territory Americans are in with respect to their right to remain silent:

Up until about five years ago, lawyers would give out business cards to their client and say, “Read this to the police,” and it’d say, “At the advice of my attorney I decline to answer on the grounds that it may incriminate me, I’m invoking the Fifth Amendment.” And there wasn’t a lot of soul-searching and agonizing that went into all of this, because as long as the jury never finds out that you took the Fifth, it’s a perfectly sensible solution. But the tide turned three years ago in 2013 with this wretched, abominable decision by the Supreme Court in Salinas v. Texas that changed everything.

In the Salinas case, a young man was interrogated by the police, and when they asked him a bunch of questions that didn’t seem to be very threatening, he took the bait and answered them all. Then all of the sudden, they [asked a question that made it] obvious they wanted information that might expose him to criminal prosecution, and he just got silent. He didn’t say a word. And there’s no doubt that he was exercising his Fifth Amendment privilege, but he didn’t [formally] assert his Fifth Amendment privilege. So the five Republican [appointees] on the Supreme Court said, Because you didn’t tell the police that you were using your Fifth Amendment privilege, your exercise of the privilege, or your decision to remain silent can be used against you as evidence of guilt. Which probably had a dozen Supreme Court justices rolling over in their grave.

The game has changed now that your choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it. As I explain in the book, now the problem is, if you’re kind of clumsy about the way you assert the Fifth Amendment, you’re running a lot of different risks.

 

He was my evidence professor and here is the lecture which got it all started: