INTERVIEW: ‘We’re about 35 years behind the UK when it comes to providing protections for suspects in the interrogation room,’ reckons Steve Drizin, who alongside fellow lawyer Laura Nirider appeared in the Netflix smash Making a Murderer representing long-term client Brendan Dassey.

The pair are co-directors at Northwestern University’s Center on Wrongful Convictions and have represented Dassey since 2007. He was just 16 years of age when he ‘confessed’ to murdering 25-year-old photographer Teresa Halbach with his uncle, Steven Avery.

A new podcast – Wrongful Conviction: False Confessions – hosted by the the two lawyers launches today and featuring 12 different cases.  According to Drizin: ‘The kinds of confession at the heart of cases like these would never been admitted into evidence in the UK – for example, in Brendan Dassey’s case where there was no appropriate adult present during the interview and deception was used during the interrogation.’

• You can listen to the podcast here.

That case was the first false confession that Laura Nirider worked on as a student of Drizin’s. As she puts it: ‘It was my first leap into the cold, deep end of the pool. It changed my life.’ Her second case was Robert Davis which features in episode one of the new series.

The series draws on real interrogation audio and so we get to hear how the police bullied a terrified teenager into confessing to a horrific double murder of a mother and her three year old son in 2003. ‘What can I say to get me out of this?’ Davis pleads before falsely confessing. His tormentors ignore his subsequent retraction. ‘I am lying to you, full front to your face,’ Davis says.

It didn’t matter. Davis agreed to what’s known as an Alford plea — in which he agreed to plead guilty without admitting guilt — and was sentenced to 23 years in prison for a crime he didn’t commit.

Robert Davis being interrogated

In the UK police interviews have been recorded since the PACE (Police and Criminal Evidence Act 1984) reforms was introduced after cases such as the Birmingham Six and Guildford Four in which (mainly) Irishmen had confessions beaten out of them by the police.

The presence of a tape recorder doesn’t necessarily prevent a false confession. For example, it didn’t stop the South Wales police extracting a confession out of Stephen Miller in the Cardiff Three case (and you can hear that harrowing recording  in episode eight of the brilliant BBC podcast Shreds).  ‘The PACE  legislation also prohibits the kind of deception we see regularly in interrogations in the US,’ says Drizin ‘We are still waiting to get those reforms.’

According to the two lawyers, lying is part of the interviewers’ weaponry in the US. They talk about a two-stage process for an interrogation. ‘Bring the suspect into the room, cut them off from family and friends and create a sense of isolation,’ Nirider explains. ‘The interrogator comes in and accuses a suspect of committing the crime and projects a rock solid belief in their guilt: “We know you did this.”’

This is the stage at which lies about evidence come in. She continues:  ‘It’s a tool used to reduce the suspect to hopelessness. “We found your fingerprints on the gun… . We found your DNA at the crime scene… . I have two witnesses next door who say they saw you do this..”  etc.’

Once the suspect is broken, the second stage begins in which, she continues, the confession is ‘offered as a life raft. “People will understand if you confess. You made a mistake. You lost your temper. It wasn’t premeditated.”’

When Steve Drizin started practising  in 1995 there were only two states that required the police to record interrogations (Minnesota and Alaska). The Robert Davis case represented a rare opportunity in which there was a videotaped interrogation ‘from start to finish’.

Lying about lying
‘When we saw the video we were dumbfounded that any court would allow this conviction,’ he says.’ There were threats of the death penalty as well promises of leniency. Robert must’ve denied he had anything to do with it between 70 and 100 times. It was painful to watch.’ The police officers deliberately deceive him saying they discovered his DNA at the murder scene. Nirider recounts: ‘They then tell this 18-year-old kid: “We cannot lie about the evidence.” They were lying to him about lying. It is that twisted.’

A false confession requires a certain amount of ingenuity on the part of interrogators because their victim has to admit to their involvement in an offence that they are not party to and, therefore, don’t know the details of.

In this case, two other convicted teens — a brother and sister, Rocky and Jessica Fugett  – admitted to the murders and then implicated Davis. ‘Robert was never in that house,’ Drizin explains. ‘He didn’t hang out with the people who were involved in this crime. In fact, they bullied him and so Robert had to come up with a story as to what happened. An innocent person cannot do that. What came out on the tape which was so powerful was the way in which the interrogators scripted this confession narrative and forced him to adopt it.’

Once someone like Davis is ensnared, then they are faced with an impossible choice: a certain life sentence or taking a guilty plea. Robert David took the Alford plea.  The case never even went to trial. In December 2016 governor Terry McAuliffe declared Robert Davis innocent and set him free. He served 13 and a half years in total which Nirider points out happens to be the time Brendan Dassey has served.

Brendan Dassey in the interrogation suite

 Tip of the iceberg
There are now only 26 states in the US that mandate video-recording police interviews. As Laura Nirider explains: ‘We know of hundreds of proven false confessions: cases where somebody confesses during a police interrogation and they’re convicted on the basis of that confession and years later an organization like ours comes along and does DNA testing to prove it false.’ That, she says is ‘only the tip of the iceberg’ as only a fraction of cases are susceptible to DNA testing. ‘We also know from our research here that children and teenagers like Brendan and Robert are between two and three times more likely to falsely confess than adults,’ she says.

Finally, how’s Brendan Dassey? ‘He is hanging in there,’ Nirider replies. Just days before Christmas Governor Tony Evers of Wisconsin denied a request to grant clemency to Dassey.

‘He was 16 years old when it happened and he turned 30 in October,’ she says. ‘He has grown up it’s a remarkable human being. He is kind, hopeful, very funny and has a childlike faith that justice will happen for him.’