"Rebutting a Murderer" Episode 2: Brain Fingerprinting

A confession is about the most powerful piece of evidence that exists in criminal law.  What else does a jury really need to hear other than the defendant telling investigators that he did it and explaining in great detail how he did it?

Brendan Dassey did both, and despite the claims of “Making a Murderer’s” second episode, he did both voluntarily.

I’m Dan O'Donnell and this is "Rebutting a Murderer."

 

Brendan Dassey’s confession essentially tied the case against Steven Avery together, as at every critical juncture it backed up the physical evidence that authorities had collected.  Dassey told them he saw body parts in a fire in Avery’s burn barrel.  Teresa Halbach’s burned body was found in that burn barrel.  He told them he saw Avery throw her camera and cell phone in the fire with her body.  They were found in the burn barrel, too.  He told them Avery threw tires on the fire to get it going.  Steel belts from tires were also found in the burn barrel.

He told them Avery was sweaty when he answered the door the day Halbach was killed.  DNA that likely came from Avery’s sweat was found on Halbach’s car key.  He told them that he and Avery loaded Halbach’s body in the back of her RAV 4.  Blood that had likely flowed into her hair was found in the back of her RAV 4.

And Dassey’s confession even answered the most puzzling question that investigators had been until that point unable to answer—why had Avery loaded Halbach’s body into her RAV 4 in the first place when his burn barrel was just steps away from the murder scene?

Dassey told them that he and Avery had originally planned to drive the RAV 4 with Halbach’s body inside into a nearby pond, but when they loaded the body and drove to the pond, they found that it had dried up, so they drove back to the Avery property, hid the RAV 4 amid the other wrecked cars in the salvage yard, and burned Halbach’s body instead.

“Making a Murderer” attempts to claim that this confession is somehow coerced, but this is not at all backed by either the facts of the case or the applicable law governing criminal interrogations.

"In homicide cases like Ms. Halbach's case, we know that false confessions are actually the most common cause of wrongful convictions," Dassey's attorney Laura Nirider says, insisting that because of Dassey’s age, his supposed mental deficiencies, and the conduct of the interrogators toward him, his free will was overcome and he had no choice but to falsely confess to murder.  His ability to interact with other people is limited, but of course it feeds into these false narratives that officers are trained in. Someone can't make eye contact? It must mean they're lying, it must mean they're guilty."

For two seasons now, “Making a Murderer” has falsely presented Dassey as so mentally challenged that he couldn’t possibly function at a normal level.  In fact, he has an IQ in the low average to borderline range and was in regular-track classes in high school with only some special education help.

The show’s dishonest depiction of the interrogation itself bolsters this idea that a mentally challenged kid was abused by the criminal justice system, but what the show never bothers to reveal to viewers is that Dassey consented to waiving his Miranda rights, his mother was present at the interrogation and consented to his waiver of his Miranda rights, and that his mother was asked to sit in on the interrogation, but declined.  

Courts have determined that for a confession to be voluntary under the Fourteenth Amendment, judges must assess “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation” to determine whether “the defendant’s will was in fact overborne.”

In ruling that Dassey’s interrogation was perfectly lawful and that his will was not at all overborne, the Seventh Circuit Court of Appeals noted that investigators did not use coercive practices, physically abusive tactics, prolonged interrogation sessions designed to exhaust a suspect physically and mentally, or false promises.

When the two investigators began talking with Dassey during the notorious March 1st interview, they thought that they were talking to a material witness.  It was only when he started telling them his horrific tale did they realize they were talking to a murderer.

As a result, early in the interview, the interrogators repeatedly assure Brendan that “everything will be okay” if he just tells them the truth.  And they truly believe it will because at that point they had no reason to believe that he was involved in the crime.

The Seventh Circuit determined that such assurances did not rise to the level of false promises, and further held that Dassey was not subject to any coercive techniques at all, noting that:

Dassey was repeatedly offered food, drinks, restroom breaks, and opportunities to rest.  At no point in the interview did the investigators threaten Dassey or his family.  Nor did they attempt to intimidate him physically.  They did not even raise their voices.  Neither investigator tried to prevent Dassey from leaving the room, nor did they use any sort of force to compel him to answer questions.  Dassey never refused to answer questions, never asked to have counsel or his mother present, and never tried to stop the interview.  

"Alright, I'm just going to come out and ask," says one of the two investigators during a portion of the confession "Making a Murderer" plays.  "Who shot her in the head?"

"He did," Dassey answered, referring to his uncle Steven.

"Why didn't you tell us that?"

"Because I couldn't think of it."

While “Making a Murderer” presents this exchange as proof that the interrogators were merely feeding Dassey information that they wanted to pull from him, the show leaves out an important follow-up.  Without being led or prompted at all, Dassey tells the investigators the exact part of Halbach’s skull that the bullet entered.  That was confirmed by forensic analysis and impossible for Dassey to know unless he was there.

In fact, “Making a Murderer” ignores at least 13 different instances in Dassey’s interview where he is perfectly able to resist investigators’ questions. 

“Dassey resisted repeated suggestions that he had participated in shooting Teresa,” the Seventh Circuit noted in its opinion.  “He denied repeated suggestions that he and Avery had used wires and cables in the garage to restrain or harm her.” 

And “Making a Murderer” completely leaves out this exchange:

"We know Teresa had a tattoo on her stomach. Do you remember that?" Dassey is asked.

"Uh uh," he answers.

"Do you disagree with me when I say that?"

"No, but I don't know what it was."

Teresa Halbach didn’t have a tattoo on her stomach.  The claim by investigators that she did is known as a “false feed” and is designed to see if the suspect is just going along with whatever he is told.  Dassey did not go along with the suggestion that Halbach had a tattoo on her stomach and was able to resist it even when he was told “We know she does.”

Dassey knew she didn’t.  How?  Because he had seen her naked.

"I thought [prosecutor Ken Kratz's news conference following Dassey's confession] was one of the most outrageous things I've ever seen pre-trial," Avery's attorney Kathleen Zellner says.  "I thought it was just unbelievable."

It was unbelievable, wasn’t it?  Ken Kratz’s news conference in which he outlined the evidence that had been collected against Avery and Dassey was gross prosecutorial misconduct, wasn’t it?

It wasn’t.  Kratz was never disciplined for it.  He was never even reprimanded.  Most prosecutors do not give press conference when they file criminal charges against a suspect, but some do.  The fact is that criminal charges against a suspect in Wisconsin are public records and the charging document is always released to the public when a suspect is charged in a high-profile case.

“Making a Murder” falsely intimates that the local media only reported on the sensational new charges because of Kratz’s press conference.  That’s nonsense—as soon as the details of Dassey’s confession were released in the charging document against him, they would have made headlines across the state and caused the exact same media sensation that Kratz’s press conference did.

Furthermore, there is simply no evidence that that press conference prejudiced a single juror.

"Brendan was just a pawn, just a tool that was used by the investigators and the prosecution to frame Steven Avery," Zellner says.  "We've got the blood planted in the car, we've got the key in the bedroom, and we've got Brendan Dassey because they planted this story in his brain and got him to agree with him."

Zellner contends that the prosecution planted in Dassey the story that Avery went under the hood of Halbach’s car.  Since she contends that investigators somehow obtained sweat or skin cells from Avery and then used a buccal swab to plant them on that latch, she says that his testimony was crucial.

Only it wasn’t.  Investigators already thought Avery opened the hood of Halbach’s SUV since the battery was disconnected after he hid it in his scrapyard.

To test her theory, Zellner conducts an experiment on a RAV 4 identical to Halbach’s that she had purchased for testing.

 But that experiment backfired remarkably, as it determined that 11 out of 15 touches from several different people left no traces of the subject's DNA.

That means four touches did, and if four out of 15 touches left DNA, then by Zellner’s own admission there was a greater than one-in-four chance that Avery would leave his DNA on Halbach’s hood latch.  In other words, in trying to prove that touch DNA must have been planted, Zellner actually demonstrated that it is entirely possible that Avery himself left his DNA by touching the hood latch.

Honestly, am I doing “Rebutting a Murderer” or is Kathleen Zellner?

But just when I thought she couldn’t get any more desperate, she resorts to brain fingerprinting. 

"Making a Murderer" then plays a news report on brain fingerprinting from 2004.  How come you probably haven’t heard of it 14 years later? Because no court will admit it as evidence since it is so useless.  It’s only even been mentioned (and not relied on) in one case in American history.  Why?  As an article about brain fingerprinting on technology site TheVerge.com revealed: 

[It has] struggled to shake accusations of shoddy testing, inflated claims, or even outright pseudoscience. Farwell has conducted extensive testing, but it's all been behind closed doors, whether it's with government agencies or prospective clients. He maintains that his test is based on solid neuroscience and that it's never produced a false result, but academic neuroscientists complain that his methods are effectively secret and have never been subject to public review.

laboratory testing can't reliably replicate the brain activity of a suspect being interrogated for an actual crime. It's easy for Rosenfeld, Farwell, and others to interrogate student volunteers, but when it's an actual suspect being questioned about an actual murder, the neurological reactions may be significantly different. How does the test hold up on neurologically atypical suspects, like psychopaths or the mentally ill? It's not clear how scientists can control for those factors, and they could leave a dangerous loophole if the method is more widely adopted.

But of course none of these concerns are ever mentioned in “Making a Murderer” and Steven Avery passes his brain fingerprinting test with flying colors.

“According to your brain, you don’t know what happened when [Halbach] was murdered,” Dr. Farwell confidently tells Avery.  “This is very powerful evidence that in fact you’re innocent of the crime.”  

Now that junk science has declared Avery an innocent man, things are looking up for him.  He even reveals that he has a new fiancée, Lynn Hartmann.

“She wrote me,” Avery says. “I think it was in February or something and she was down in the dumps because she got a divorce.  I made her feel better and we’ve been together ever since.

Unfortunately, it didn’t last long.  The two are now broken up, and Hartmann, like Avery’s ex-girlfriend Jodie Stachowski from “Making a Murderer’s” first season, says Avery threatened her with violence and, like Stachowski, she now believes he killed Teresa Halbach.  

 

Kathleen Zellner, however, isn’t finished, and the second episode ends with her new theory about Teresa Halbach’s SUV.  Zellner claims that scent dogs tracked the scent of Teresa Halbach, not a cadaver, to the quarry next to the Avery property.

"The quarry property is the sand and gravel pit adjacent to the Avery property," she says. "The scent dogs are circling the trailer owned by the owner of the quarry.  The dogs are in the woods there and track deeper into the quarry on the southwest section of it and then they come back exactly where her car is found through that Conveyor Road up onto the Avery property."  

The implication is that Teresa was alive when she was at the quarry.  Zellner’s theory is that the real killer used her SUV to push away a Dodge Pinto that the Averys had used to block the entrance to their property and park the SUV where it was eventually found.

"We think that the RAV damage came from pushing the Pinto bumper to bumper out of the way to get into that road that then curved around, looped around the pond and would have allowed someone to park that RAV where it was," Zellner says.  "And then the way they exited was back over the the berm or back through the break back to the quarry. That's how they got out of there."  

Only there’s no evidence that anyone parked the RAV 4 and then exited.  In fact, the dogs hitting on Halbach’s scent in the quarry is consistent with Avery and Dassey taking the SUV with Halbach’s body to dispose of it in a nearby pond.  Where did Zellner say that road went again?

"We think that the RAV damage came from pushing the Pinto bumper to bumper out of the way to get into that road that then curved around, looped around the pond," she says.

That’s right.  The road looped around the pond.  Remember, Dassey confessed that he and Avery loaded Halbach’s body in the back of her SUV and drove it to that pond, but discovered that the pond was dry, so they drove back to the Avery property and parked the SUV in the salvage yard before covering it with debris and taking Halbach’s body back to Avery’s trailer to burn it.

Once again, Kathleen Zellner has inadvertently bolstered the case against Avery, especially when the second episode ends with what is presented as a big discovery for the defense—the revelation that the Pinto was hollowed out.

"It's only a shell!" one of Zellner's assistants says to "oohs" and "ahhs" of revelation from the rest of her staff at the salvage yard.  

"That would make it really lightweight," Zellner says. 

Interesting.  Since the theory is that the real killer used Halbach’s SUV to push that Pinto aside and gain entry to the Avery property, it’s interesting that the killer wouldn’t be deterred by a big car sitting in the way of the road; almost as though the killer knew it would be possible—easy even—to push the Pinto aside.  If it were, say, hollowed out, and very light.

But the killer couldn’t have known that.  Only the people who put the Pinto there to block the road could have known that.  People who owned the salvage yard.  People like Steven Avery.         

 
Dan O'Donnell

Dan O'Donnell

Common Sense Central is edited by WISN's Dan O'Donnell. Dan provides unique conservative commentary and analysis of stories that the mainstream media often overlooks. Read more

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