Gerald Gault, Meet Brendan Dassey

©m Grdaopohmic iSttso | c1k 23rf the authorities believed that Gerald had done something Gerald Gault, Meet wrong and were free to act accordingly. Two and a half years later, in 1967, the U.S. Supreme Brendan Dassey: Court ordered Gerald’s release in an opinion written by Justice Abe Fortas that was nothing less than a reckoning Preventing Juvenile False and Coerced for the nation’s juvenile court system. Blinded by “nei - Confessions in the 21st Century ther sentiment nor folklore,” Justice Fortas laid bare the gulf between juvenile court’s rhetoric — characterized by speeches about “kindly” judges, informality, and the therapeutic treatment and rehabilitation of youthful offenders — and its reality. Juvenile courts, according to n 1964, 15-year-old Gerald Gault was taken into cus - the justice, too often operated as “kangaroo courts” tody by the sheriff of Gila County, a rural jurisdic - prone to inaccurate fact-finding, unchecked abuses of tion about 80 miles east of Phoenix, after a neighbor discretion, and arbitrary punishments. His prescription Iaccused him of making prank telephone calls of the was a healthy dose of due process, including most promi - “irritatingly offensive, adolescent, sex variety.” Over the nently the right to counsel. To Justice Fortas, only a child course of the following week, Gerald appeared twice in aided by a lawyer’s “guiding hand” could both “ascertain the chambers of a juvenile court judge, accompanied by a defense” and “prepare and submit it.” his mother, older brother, and two probation officers. Gault revolutionized juvenile court process by not Though the hearings were not transcribed, later testimo - only requiring counsel for kids, but also granting them ny indicated that the judge questioned Gerald both times other basic ingredients of due process: the right to notice about whether he had in fact made the calls. Gerald’s of the charges, the right to confrontation and cross- mother recalled that he told the judge only that he dialed examination, and the right against self-incrimination. his neighbor’s phone number and handed the phone to his friend Ronald; one probation officer recalled that he admitted making the lewd calls and later recanted; and Editor’s Note: The authors, who created and developed the judge himself recalled that Gerald had admitted the Center on Wrongful Convictions of Youth (CWCY) in making some of the lewd statements — but only the less 2009, represented Brendan Dassey, whose murder “serious” ones. Based on these statements, Gerald was confession was the subject of the “ Making a Murderer” taken from his parents and held in detention. It is not docuseries. CWCY is the first and only organization known whether his uncorroborated, uncounseled con - dedicated in large part to representing children who fession — or, if there was more than one, which version falsely confessed to crimes they did not commit. — was true or false. In many respects, it did not matter; BY LAURA NIRIDER, MEGAN CRANE, AND STEVEN DRIZIN 28 WWW.NACDL.ORG THE CHAMPION Perhaps for these reasons, Chief Justice gation reform — but the need for vivid reminder that the concerns artic - Earl Warren, upon receiving a draft of reform persists to this day. Perhaps no ulated in Gerald’s case have not gone the Gault opinion, sent his colleague more widely recognized proof exists away. Even in the new millennium, a Justice Fortas a personal note: “I join than the uncounseled, uncorroborated child subject to uncounseled interroga - your magnificent opinion in the above confession of 16-year-old, mentally tion might agree to “whatever he case. It will be known as the Magna limited Brendan Dassey, whose video - thought was expected” in order to go Carta for juveniles.” taped confession to murder was publi - back home — or, in Brendan’s case, cized in the 2015 Netflix Global back to school. By putting a heartbreak - docuseries “ Making a Murderer .” ing face on the problem of juvenile false Wisconsin police interrogated Brendan confessions, the series reminds advo - in 2005 alone on video camera until he cates of the fierce urgency of the task at gave a confession to the rape and mur - hand: working to reform juvenile inter - der of a young woman named Teresa rogation techniques before the criminal Halbach. Watched by audiences world - justice system locks up more Brendan wide, the series has generated a global Dasseys. groundswell of support for Brendan To be sure, the legal terrain has not because many believe him to be inno - gone completely unchanged since the cent and his confession to be false. era of Gerald Gault. After decades of dormancy, the high Court revivified Gault ’s concern about the unreliability of juvenile confessions in 2011’s J.D.B. v. North Carolina . There, the Court noted that empirical studies undertaken in the era of DNA-proven exonerations have shown that the problem of false confes - sions is indeed “all the more acute” when In 2017 — the 50th anniversary of the subject of custodial interrogation is a Gault — the opinion’s discussion of the juvenile. Building on a decade of reinvig - C right to counsel is rightfully being feted orated juvenile jurisprudence, the Court O across the country. Tucked among the explained that juveniles are vulnerable N decision’s later pages, however, is an during interrogation precisely because F equally important discussion concern - they “are more vulnerable or susceptible E s r S ing a child’s right against compelled e to … outside pressures” and “often lack w S o P self-incrimination. This 50-year-old the experience, perspective, and judg - n I a D O discussion still resonates today precisely , ment to recognize and avoid choices that t n 1 e c because the problem it describes still could be detrimental to them.” N s e r C S exists: the problem of unreliable con - - Recognition of the problem has t s o fessions from juveniles. These are the P spread beyond the courts, too. While e h T pages celebrated in this essay. / many police interrogation training firms o t “Authoritative opinion has cast for - o have been loath to reform their tech - h P P midable doubt upon the reliability and A niques, some law enforcement agencies trustworthiness of ‘confessions’ by chil - have agreed on the need for reform, dren,” decreed Justice Fortas, wrapping Brendan Dassey testifies April 23, 2007, including the International Association the word confession in ever-so-slightly at the Manitowoc County Courthouse in of Chiefs of Police. In 2012, that acerbic quotation marks to underscore Manitowoc, Wis. Dassey, 17, was charged with Association issued a juvenile interroga - just how formidable the Court’s doubts first-degree intentional homicide, mutilating tion manual specifically geared at pre - were. In an era when DNA testing was a corpse and first-degree sexual assault in venting false confessions that recom - not known or thought of, and when the the death of 25-year-old Teresa Halbach on mended, among other things, the use of notion of a false confession was hard to Oct. 31, 2005. His uncle, Steven Avery, was different and more child-sensitive inter - imagine and even harder to prove, the found guilty of her murder. rogation techniques. Hearkening back to Court pointed out that a child subject to Gault ’s warning that children might police interrogation might admit “what - admit to anything if they think they will ever he thought was expected so that he Viewers watched as police used a get to go home, the Association cau - could get out of the immediate situa - series of misguided techniques to elicit tioned officers to avoid “even … indirect tion.” And Justice Fortas turned his a confession: they told the impression - promises of leniency” that imply that searching gaze on pressure-filled inter - able Brendan that everything would be confession will result in help or that rogation techniques, finding that false “OK” as long as he told them what they silence will result in negative conse - confessions could occur “wherever the already believed he had done; they fed quences. Similarly, it warned against innocent person is placed in such a situ - him crucial nonpublic details about the using deception with children, including ation that the untrue acknowledgement murder, including the fact that Halbach the use of false evidence during interro - of guilt is at the time the more promis - had been shot in the head; and they gation, and insisted that officers refrain ing of two alternatives between which he falsely led him to believe that he would from disclosing crime-scene facts during is obliged to choose.” be returned to school in time to finish a the interrogation. To be sure, this manu - Gault ’s bold words should have project — even after he confessed to al binds no one — not a single officer — resounded as a clarion call for interro - rape and murder. The series serves as a but it stands as a reform-minded tem - WWW.NACDL.ORG APRIL 2017 29 plate for departmental interrogation “All everyone’s waiting for today is for you honest is necessarily coercive, because of policies around the country. to admit to what you did so that we can the way it realigns a suspect’s incentives Many state legislatures have also start the process of getting you some help.” during interrogation.” taken basic steps to improve the condi - Against this legal landscape, officers — Interrogation of Nga Truong tions surrounding juvenile interrogation. are trained to dance around the issue: to (Massachusetts, 2008) Indeed, Brendan’s case is emblematic of suggest leniency without ever saying it one of the most significant reforms that outright, using language that clearly has swept the nation in the past 10 years: “You need to start thinking about what telegraphs the message without crossing the videotaping of interrogations.

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