The Talmudic Tradition of 'Making a Murderer'

At the heart of a riveting Netflix documentary on a questionable murder conviction is the suspect’s own confession. That evidence is seen as problematic in Jewish law and by the lawyer who ultimately exonerated Brendan Dassey.

Brendan Dassey.
Manitowoc County Sheriff's Department/ via Reuters

When clinical law professor and attorney Steven Drizin, who traces his lineage to some of the founders of the Lubavitch Hasidic movement, sits down to work each day, a phrase from Deuteronomy stares down at him from a poster on his office wall: “Justice, justice, thou shalt pursue.” It’s a singular focus that has helped the wrongfully convicted — including many of Drizin’s clients — regain hope.

Among the most notable of those clients is Brendan Dassey who, along with his uncle Steven Avery, was featured in the recent 10-episode Netflix documentary series “Making a Murderer.” Dassey was 16 when he was convicted, in 2007, of murdering a woman. Last week, the U.S. District Court in Milwaukee overturned that conviction with the help of Drizin, his appeals lawyer.

Dassey’s original trial relied on his confession that he had helped his uncle rape and murder Teresa Halbach, a photographer who had visited Avery’s auto salvage yard in Wisconsin’s Manitowoc County for a photo assignment. In heartbreaking video footage of the interrogations, viewers of the series were privy to the police tactics used to elicit Dassey’s statements. Last week, the judge ruled the confession involuntary under the Fifth and Fourteenth Amendments. (In a separate process, Avery’s lawyer is also trying to exonerate him.)

Drizin is co-founder of Northwestern University’s Center on Wrongful Convictions of Youth, the legal clinic that picked up Dassey’s case at the post-conviction stage. He is also an expert on false confessions. His groundbreaking study on the topic (coauthored with Richard A. Leo) examined 125 cases of suspects later found to be innocent who had nevertheless confessed. Their 2004 article has been widely cited — from the United States Supreme Court to Rabbi Joseph Telushkin, an American lecturer and bestselling author .

False confessions, Drizin explains, rank up there as a leading cause of wrongful convictions. (Mistaken eyewitness, he says, is the number one cause, at least in cases that have involved exonerations based on DNA evidence — a method that’s only been available since 1989.) Now, roughly half of U.S. states require interrogations to be recorded — up from only two in 1995.

Drizin would like to see laws which would require the courts to assess the reliability of a given confession before it is presented to the jury. “That’s part of what my scholarship is about. It parallels what some of Jewish law scholars have said, but it’s not influenced by that.”

Steven Drizen, appeals lawyer of Brendan Dassey.
Courtesy

Jewish legal tradition, which long predates these public policy debates, seems to offer some relevant and wise insights on this issue. Dating from Talmudic times, Jewish law, in fact, does not allow confessions as admissible evidence in serious criminal proceedings. Specifically, the Talmud holds that a person cannot self-incriminate. In outlawing confession in capital proceedings, “the rabbis,” explains Talmudist and Rabbi Ysoscher Katz, “were trying to avoid capital punishment as much as possible. That’s why they called a court that kills more than one criminal in 70 years ‘murderous.’”

In “A Code of Jewish Ethics, Volume 2: Love Your Neighbor as Yourself,” Rabbi Joseph Telushkin also applies a Jewish lens to call into question the function of confession. He, too, cites Drizin and Leo, while quoting Maimonides: “The court shall not put a man to deathon his own confessionfor it is possible that he was confused in mind when he made the confession.”

In a chilling video clip in the Netflix series that illustrates that possibility, Dassey tells his mother, “They got to my head.” It’s a clip which the jury in Dassey’s original murder trial never got to see.

“It’s counterintuitive,” Drizin says, that “anybody would confess to a crime they didn’t commit.” But juries must realize that “just because the police and the prosecutors say that someone is guilty because they confessed, doesn’t necessarily mean they are.” Meanwhile, “while the innocent person is locked up, it’s often the case that the true guilty person is out there committing other murders or rapes.”

In their study, Drizin and Leo found that the longer the interrogation, the greater the risk of false confession. There is also the problem of police being permitted to lie to suspects about evidence they have apparently amassed. (The U.S. Supreme Court has upheld this practice since 1969, in a move Drizin describes as a function of the courts being overly deferential to law enforcement agencies. However, actual fabrication of evidence is prohibited in some states — partly out of fear that the phony evidence might be used during court proceedings).

Particularly with young, intellectually compromised or otherwise vulnerable suspects, all of which describe Brendan Dassey, implied threats or promises of leniency can lead an innocent person to feel helpless. Fact-feeding is especially problematic.

Brendan Dassey.
Eric Young via AP

In rarer cases, social psychologists have discovered that some innocent people, faced with misleading claims about evidence against them, actually come to believe they committed the crime.

Police who elicit false confessions aren’t necessarily acting with malice. Unlike in instances of framing, police sometimes just get “carried away,” Drizin explains, especially if they believe someone to be guilty.

In the context of the Dassey trial, these dynamics are analyzed in a video presentation by Drizin and his co-counsel, Laura Nirider. Their work on the case is featured in episode 10 of “Making a Murderer.” (Netflix announced last month that new episodes are planned.)

Speaking to an audience at Northwestern, Drizin described the police process in Dassey’s case as “one of the worst cases of police contamination I have seen in over 20 years of looking at interrogations.”

At the Center on Wrongful Convictions of Youth, Drizin and his team, who take on cases on a pro-bono basis, receive more than 200 letters a month from inmates. Part of a network of nearly 70 innocence projects all around the world, Drizin and his team gather documents, talk to people involved in the original conviction if possible, and “make our best judgment about whether we believe the client is innocent and whether we think we can prove it.”

Dassey has been imprisoned in a maximum-security correctional facility in Wisconsin for a decade. Now the state has 90 days to decide whether it wants to retry him, appeal the decision, or simply allow him to move on with his life. Drizin will visit Dassey next week, as the legal team awaits the state’s response. “We are prepared to go as far as we need to go to bring Brendan home.”

Drizin tells Haaretz he is a “firm believer in tikkun olam [repairing the world] and the notion that if you save the life of one person, you heal a breach in the community, and you essentially save the world. I’ve tried to live my life,” he says, “by adhering to those principles.” Now, with his hoped-for release from prison, Dassey will also have the chance to choose how to live the rest of his life.