By Michael D. Cicchini
Interrogators have tricks to get suspects to waive their Miranda rights and, once those are waived, to confess to crimes. But a confession won’t do the state any good unless a prosecutor can use it at trial.
Therefore, interrogators also have tricks to ensure that the confessions they extract will later be admissible in court.
Below is an excerpt from my book, Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield, 2018), which exposes one of these tricks. Though it might seem absurd, interrogators can all but ensure the future, in-court admissibility of a confession merely by offering the suspect a soda or snack:
. . . [I]n order to be admissible [a] confession must be the product of the defendant’s free and voluntary choice. . . . So a court will look for little things on which to hang its hat, thus allowing it to find that the confession was not coerced, but instead was made of the defendant’s own free will.
So what do snacks and sodas have to do with that? As [the] state appellate court held, they go to whether the police applied “improper pressures” on Dassey. If the interrogators offered him food and something to drink, that was a figurative “box” the court could “check” in favor of “no improper pressures.” And once a couple of these figurative boxes on the state’s side of the ledger have been checked, the court can find that the confession was voluntary—no matter how many different pressure tactics the interrogators actually used. . . .
Wiegert and Fassbender had been trained that the appellate court would later rely on their generosity with food and drink. That’s why they incorporated another simple trick into their interrogation routine: they repeatedly asked Dassey if he wanted a sandwich, snack, or soda.
For example, at Mishicot High School, right after drilling Dassey about seeing arms, legs, skulls, and other body parts, Wiegert asked him, “Do you want to take a little break, get a soda? You need something to drink?” Dassey declined, but because police interrogators have a difficult time taking no for an answer in any context, Fassbender pressed, “What kind? Do you want something?” Similarly, after getting into more gory detail at the Two Rivers Police Department, Wiegert asked, “Are you doing OK? Do you need a soda or something?”
The interrogators’ generosity continued, and in fact dramatically improved, at the Manitowoc County Sheriff’s Department interrogation. Even after Dassey told them he wasn’t hungry, Fassbender asked,
“Drink, anything, bag of chips or something, cuz this may, you know, be a little while.” “Naw,” Dassey responded. Fassbender then reinforced a classic cop stereotype: “OK, doughnut?” Dassey declined that snack food as well. A short time later, Fassbender pressed, “Soda? Water? You sure?”
. . . Wiegert, perhaps having missed some of this food-related discourse, wanted to leave nothing to chance. To make sure Dassey’s culinary desires were satisfied, he asked, “Sandwich or anything?” Then, after more discussion of how Dassey allegedly disposed of Halbach’s blood-drenched body, Fassbender resumed the role of headwaiter. “Do you want something’ to eat? Looks like you’re a little hungry.”
Wiegert again offered the menu’s sole choice for the main course. “How about a sandwich? Should we get you a sandwich?”
Offering food and beverage is such an ingrained part of Wiegert and Fassbender’s routine that, much like lying to the suspect, it is probably difficult to turn off. Even after the interrogation ended, and Fassbender was watching Dassey say goodbye to his mother before being ripped away from his simple existence to be locked in a cage, he reflexively asked, “Do you want another water Brendan?”
Interestingly, Wiegert and Fassbender had asked Dassey so many times whether he wanted “a soda” that Dassey actually incorporated it into the yarn he was spinning about Halbach’s rape. . . . In Ken Kratz’s favorite part of the confession, Dassey said that he knocked on Avery’s door and was greeted by his sweaty uncle: “He’s got a white shirt on with red shorts and all sweaty.” According to Dassey’s story, he entered Avery’s trailer where Halbach was tied up in the bedroom, still screaming. Avery then told Dassey that he was in the middle of sexually assaulting her.
On the edge of their seats and eager for details, Fassbender urges Dassey to “play the video [in your mind] for us Bud, tell us what’s happenin’.” The following exchange ensues:
Brendan: He asks me in the kitchen.
Wiegert: He what?
Brendan: He walks me into the kitchen.
Fassbender: What does he say to you?
Brendan: If I want a soda. . . .
Wiegert: So do you have a soda?
Brendan: Mm huh.
Wiegert: And what happens next?
Brendan: I open the soda and I drink some.
. . . [E]ven after the interrogation concluded, Wiegert and Fassbender’s generosity did not end. After they told Dassey’s mother that her sixteen-year-old son had just confessed to committing a violent rape and murder and was going to jail, Fassbender just couldn’t stop himself. “Do you want a sandwich, Barb? We have some here.” Barb’s response exposes the pure absurdity of Fassbender’s offer. “I’d probably just throw it up anyhow.”
And as for the Wisconsin appellate courts’ reasoning that sodas and snacks can overcome a variety of interrogation tactics—including lies, threats, promises, and repeated and grossly leading questions—to render a statement “voluntary,” that’s just legal fiction. Dassey’s appellate lawyers explained it best:
“The psychological effects of false promises of leniency cannot be cured by placing a defendant on a couch or giving him a Sprite.”
Michael D. Cicchini is a criminal defense lawyer and author in Wisconsin.