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CRITIC’S CORNER: Critical omissions in ‘Making a Murderer’?

avery-at-bnn-1Whenever I write a motion or a brief on behalf of a client, it inevitably requires that I quote language from a published case, the criminal complaint, or some other document.

And nearly every time I do so, the prosecutor cries to the court, “He’s quoting that language out of context!”

As Christopher Hitchens said, “No letters, please, about ‘quoting out of context.’ One does not have to be a deconstructionist to know that quotation is out of context.” Or, as I always respond (far less eloquently than Hitchens), “You can’t just claim that I’ve omitted something without telling the court how the omitted material supposedly helps your case.”

Since “Making a Murderer,” Ken Kratz has been singing this prosecutorial refrain from the mountaintops, frequently stating that the documentary omitted essential information. For example, in their book — “Avery” — Kratz and Peter Wilkinson complain that “Making a Murderer” omitted Brendan Dassey’s May 13th “interview.” (Prosecutors refuse to use the word “interrogation.”)

They claim that Dassey “makes chilling admissions, with reasonable specificity and almost no prompting by the investigators.” According to the authors, these unprompted admissions include Brendan’s statement that Avery “burned the rest of [Halbach’s] purse’s contents, including the victim’s digital camera and phone, in his own burn barrel[.]”

I would not call Dassey’s statements about the purse, camera, and phone unprompted. The more accurate description is that the interrogators extracted the information. In fact, they previously raised this topic when interrogating Dassey a couple of months earlier, on March 1st. They were obsessed with these items, and wouldn’t take “I don’t know” for an answer. The interrogation and extraction went as follows:

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of two books and 15 law review articles on constitutional law, criminal law and procedure, and other topics. Visit for more information.

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of three books and 19 law review articles on constitutional law, criminal law and procedure, and other topics. Visit for more information.

Fassbender: What happened to Teresa’s other personal effects?  I mean, ah, a woman usually has a purse, right?  Tell us what happened ta that?

Brendan: I don’t know what happened to it.

Fassbender: What happened ta her, ah, her cell phone?  Don’t try ta ta think of somethin’ just—

Brendan: I don’t know. . . .

Fassbender: Did Steven, did you see whether, ah, a cell phone of hers?

Brendan: No.

Fassbender: Do you know whether she had a camera?

Brendan: No.

Fassbender: Did Steven tell ya what he did with those things?

Brendan: No.

Fassbender: I need ya to tell us the truth. . . . What did he do with her her possessions?

Brendan: I don’t know.

Wiegert: Brendan . . . It’s really important that you continue being honest with us. OK, don’t start lying now. The hard part’s over. Do you know what happened ta those items?

Brendan: He burnt ’em.

Wiegert: How do you know?

Brendan: Because when I passed it there was like, like a purse in there and stuff. . . .

Wiegert: What else was in there?

Brendan: Like garbage bags . . .

Wiegert: Tell me what you saw in there exactly.

Brendan: Like they were buried underneath ah, garbage, a garbage bag that was—

Wiegert: How do you know, or how could you see them if they were underneath a garbage bag?

First, Dassey had no motivation to lie about whether he saw the purse, camera, or phone. By this point in the interrogation, Wiegert and Fassbender had already forced him to “confess” to rape and murder. Even Dassey would know that whether he saw these items was of no consequence to him whatsoever.

Second, as the false-confession expert Lawrence White stated in Making a Murderer, when interrogators repeatedly reject a suspect’s answer and insist on honesty, it’s not hard to translate. What that means is, “Don’t tell us that, tell us something else.” And Dassey did.

And third, Dassey’s story about seeing these items in the burn barrel was so unbelievable that even Weigert questioned it. It is obvious to any fair-minded reader that Dassey didn’t see anything; rather, he was just changing his story to please his interrogators. (They previously and repeatedly had made clear that if Dassey kept them happy, he’d basically walk free. The joke, as we now know, was on Dassey.)

In sum, everyone should be leery when a prosecutor says that a defendant made a statement with “almost no prompting.” And more importantly, everyone should be leery when a prosecutor says that Making a Murderer has omitted things or has taken something out of context. The prosecutor is probably, well, taking things out of context.

For more on interrogations—including how the police and prosecutor twisted Avery’s claim of innocence into evidence of his guilt—see chapter 6 of my newest book, Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer (Prometheus Books, 2017). It is available online and, as Christopher Hitchens also used to say, “in fine bookstores everywhere.”



  1. Dassey’s “confession, which the prosecutor had to of known was rubbish should never have been admissible. In episode 4 the young trooper that had previously searched Avery’s trailer and was present when Lenk planted the Rav4 key, sorry found the Rav4 key clearly stated that “The key was not there before” Why didn’t the defence make more of his statement?

  2. I cannot stand the comments about his demeanor that the prosecution always makes. My kids have intellectual disability. His demeanor was that of a child who is so overloaded he cannot process the information and he is trying to come up with answers. Possible options like this is a test to see if he can guess right.

  3. Hi!

    What’s your opinion on the brief for Post Conviction Relief Zellner filed on behalf of Steven Avery?

    Maybe you could blog about it, or join the discussion on Reddit.

    Looking forward to hearing what you think. Thanks!

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