Published at: 2020-05-21
In the first installment of this article we discussed the case of Brendan Dassey, a young man with language disorder who was tried and convicted of murder despite profoundly problematic police interrogation methods. Brendan was a minor at the time. Brendan’s case was both tragic and fascinating. It was even the focus of a Netflix documentary, Making a Murderer. More importantly, it raises big questions about how language disorders interact with the American criminal justice system. In this post, we will discuss those issues in greater detail. From motor vehicle incidents to murder, people will confess to crimes they did not commit. Why? Among other reasons, people facing long prison sentences may hope for a lighter sentence, the person may have been intimidated or lied to by the police during interrogation, and, yes, a person may confess due to compromised reasoning ability. In fact, a false confession is an all too common occurrence. The Innocence Project tracks cases where DNA evidence exonerated convicted individuals: “Although the individuals involved in these cases were innocent of the crime, approximately 25% had confessed or admitted guilt and 11% had plead guilty,” . Honestly, I don’t know whether Brendan Dassey is a murderer or not. But I do feel comfortable saying this: the process that resulted in his confession and arrest was deeply, irremediably flawed. And a lot of that has to do with language: Brendan’s language and communication deficits, as well as the police officers’ weaponization of language against him. But the problem goes deeper than that. There is a general lack of knowledge regarding what speech and language disorders look like in practice, so it is perhaps inevitable that the deficit would also permeate our criminal justice system. We have a hard time demonstrating an evidence base to our clients, how can we go about informing police officers, prosecutors, defense attorneys, judges and juries? What is the solution? We don’t have a good answer for that. I wish we did. Where do we start? Well, we do have some ideas about that...
And you wonder: is this going on everywhere? Right. That’s something I think speech pathologists don’t realize: that the percentage of kids – and adults, too – in the criminal justice system who have language disorders is really shocking. And I guess nobody knows for sure how many people are incarcerated who have language disorders. But I’ve seen percentages that range from 20% to as high as 80% of the prison population. So, it is quite extraordinary. And it really makes you wonder if they ended up in prison because they could not defend themselves or they did not know how to deal with police questions and accusations. And this brings to mind the questions I had about our role as advocates. It’s huge! It’s a whole field. Are there people who specialize in this? I agree. I think there needs to be a sub-specialty of forensic speech language pathology. And I think that our role as advocates should be to educate people in the legal professions about all kinds of communication disorders and how they affect anybody who gets caught up in the legal system. That’s a big project. I’m not sure where we need to start. But certainly, in terms of individual cases, I think SLPs and lawyers can develop collaborative working relationships where the SLP can inform the lawyer about the specific and unique disorder that their client has, and how it affects interactions with legal professionals – police, attorneys, judges. SLPs could help attorneys ask the right questions to elicit narratives of events, and formulate questions in a way that the client can understand and answer. SLPs might need to assess clients for the first time if their language disorder has not been identified until their encounter with the legal system. Lawyers, too, need to educate SLPs about what they need in order to help their client. There is a lot of learning to be done on both sides. It’s huge. Which brings me back to getting the word out. And it’s nice to know that Michelle [La Vigne] is doing that – I think that’s what her focus is. And since the paper has come out, a number of people [legal professionals] have contacted her, and she has encouraged them to find and develop relationships with SLPs in their local area. I think that needs to happen. I love the idea of the sub-specialty; it’s a really good way to put it. If you had a dream outcome from this – or more than one dream – what would it be? I’d like to see collaborative relationships between SLPs and legal professionals for dealing with individual cases. And then I’d love to see some kind of joint educational effort between law schools and communication disorders departments. For example, right here at UW-Madison we have a great Communication Sciences and Disorders program, right? And there is this fabulous, well-known law school. Why are they not collaborating? This is rhetorical. They don’t know the need that they could fulfill for each other. They don’t know the potential that is there. Personal note: do you feel a little bit of weight now, like: ‘I have opened this can of worms. There is so much that needs to be done. I feel like I have to fix it’? Or are you not feeling like that? Because I feel it beside you! Yes, I do. I feel a tremendous responsibility, especially now that I see the larger picture. It’s not a one-person job, for sure. I’m glad that there is starting to be an interest and understanding of the problem in this country. Apparently, in the UK they have known about this issue for quite some time. As a matter of fact, they have a wonderful setup in the UK where people with language disorders are given language advocates when they are interrogated by the police. I do feel an urgency to solve this problem. I felt it especially while I was working on this project. It was very emotional. I was deeply immersed in the transcripts and it was just crushing to read through the transcripts and see all the ways that Brendan was being taken advantage of and abused by the system. And to see how vulnerable he was. And the idea that this same scenario was being repeated in other cases across this country was overwhelming. And I suppose, it’s a part of the nature of what we do: We just want to fix things, and right away. And it’s an overwhelming idea to attempt to do that. This UK option of having a language advocate is of interest. They have a program where people are trained to be language advocates for any suspects or witnesses who have communication problems. In addition to language advocates, the police in the UK are trained for an interview protocol -- the acronym is PEACE (Planning and Preparation, Engage and Explain, Account, Closure, and Evaluation). I think it is similar to the NICHD forensic interview protocol that the psychologist Michael Lamb and his colleagues developed for interviewing children, . Both emphasize preparation – pre-interview preparation includes getting information about the interviewee to anticipate special needs - such as language, psychiatric or mobility issues, for example. Both emphasize open-ended questions to improve accuracy of elicited information, and only once those are exhausted are wh- questions and yes/no questions used. There is a hierarchy and a sequence of questions. So, the UK uses PEACE.  Do you think Michele has thoughts about trying to get something like that instituted here? Is that something she is interested in doing? I know she thinks it would be a really good idea, yeah. I think, because she has so many things that she is doing, I don’t think advocacy in that particular area is anything she can do. She teaches, she supervises students, she gives presentations, and then does this research. So I think she is probably at her limit! Getting police to re-think their interviewing skills and strategies is another large area of effort. The Reid Technique (so-called) is still used widely, and never been thrown out of court. What I do know is that the Brendan Dassey interview is being used as an example of how not to interview kids with disabilities by one of the nation’s leading police training firms. (Dave Thompson of Wicklander Zulawski spoke about this at the press conference announcing the petition to Governor Evers for Brendan’s release.) I’m just hoping you two will fix it! I think spreading the knowledge is key. And I liked your question about: ‘what would you like practitioners to take away from your research?’ Certainly, being an advocate, collaborating with and educating other professionals. It’s something that is in our mandate already. I think it is just that no one has ever really realized that the ‘other professionals’ included lawyers, judges, police: ‘ok, sure, I work with an OT every day.’ Or a PT or a doctor or the social worker. Those people come to mind immediately as part of an SLP practice. We know what they need to know and we’re used to sharing expertise with them. Another thing I kept thinking over and over was: all those cute little kids that you work with as preschoolers or kindergarteners or whatever, they could grow up to be Brendan Dasseys and end up in this kind of situation, too. I want SLPs to know that can be the trajectory for some of the kids we work with. I also think about policy makers, people who decide how much services kids get and up to what age. I think those issues are all bound up in this, too. How can we do a better job at reducing that school-to-prison pipeline? This story was a very emotional topic for me, for whatever reason. I didn’t watch ‘Making a Murderer.’ Almost everyone I know did. I just couldn’t do it. But I’m going to now! I tried to when it was released. But I felt, ‘I can’t do this.’ I was so upset. I just wanted to avoid those feelings. But that’s not how we affect change. Your paper, and then realizing how real this was, has really affected me and how I think about the reality of language disorder. This boy’s life was negatively impacted, derailed, in an unimaginable way because of his language abilities. This is a hit-home-hard example of how language contributes to, narrates, and impacts to one’s life experiences. It’s so eye-opening. Right. It is unimaginable! I never could have imagined any of this – each new understanding I had of the situation was like a big wave hitting me and knocking me down! And your experience does a lot for our profession, too. This is a really big demonstration, in certain ways, for how important our profession is. It’s funny, when I first started working on this project, I came across this amazing quote from Sherlock Holmes: ‘I see no more than you, but I have trained myself to notice what I see,’ . And I felt like that encapsulated so much, because Brendan’s disorder was right there in front of everybody, for everyone to see: his IEP, his assessment, all the documentation was in the court record. And yet nobody noticed what they saw. They did not know how to interpret it, or use it in his defense. But, like Sherlock, SLPs are trained to notice what others don’t. We are really needed in cases like these, and there are many of them. And honestly, Sally, I just can’t imagine that they overlooked it on purpose. I think it is exactly what you said: nobody noticed it because they aren’t trained to look for it. They are used to processing through people, day after day after day, many of whom probably sound very similar to Brendan or act very similar to him. And the collective ‘you’ has a way of handling it and may not realize “this calls for different communication styles. We have to handle people individually.” I think, as a society, we are really ignorant about language and how important it is. And I wouldn’t expect people to understand literacy and language disorders if they don’t even get what undisordered language is. It is really hard to explain to people and I’ve struggled with it my whole career. And that’s the thing: I’ve never found a satisfactory way to explain language to people. Unfortunately, I feel as an SLP that’s a real failure. It makes me really unhappy that it’s so hard to get people to understand it. I think this is a very good avenue into getting more attention. I really do. It is going to help us and Brendan and others like him. At least, I hope. Right. We’re in the business of helping people, right? That’s why we are here. But we need more visibility. Whether people understand what language is or not, we have to plow ahead and try and get more visibility. In this court case, for example, in the trial, the school psychologist was called as a witness, but neither defense or prosecutors spoke with the school speech pathologist who had evaluated Brendan. The school psychologist was asked some questions about Brendan’s language, and she said ‘you know I really can’t answer that. You should ask the speech pathologist.’ And they still didn’t call her as a witness for the trial! So. I mean, we [SLPs] really need more visibility, whether or not we ever get people to understand what we do. But we still have to get right out there somehow. Maybe the more we get involved in legal cases, the more we’ll be sought out. One of Brendan’s current lawyers said ruefully to me that before they read the article, they never would have thought to consult with an SLP … Well, now they will! Again, I’m just… It’s a huge project. I’ve had a few conversations with Michele about what I would like to see happen. My thought is to create a database of SLPs who attorneys could consult with in their local area. The specific needs of a case would determine the nature of the consultation. A number of things come to mind that attorneys might need. Some clients might need assessment of spoken and written language and cognitive abilities, as well as hearing. For indigent clients, it would be a real boon to have SLPs who could volunteer to provide some of these services. SLPs could help lawyers understand the specific communication needs of their client with varied legal professionals (lawyer, probation agents, etc.), and how a communicative disorder might be related to a crime or accusation. SLPs might provide discourse analysis (I’m working on a new one now), and help a lawyer understand what would be difficult for a client in an interrogation. SLPs who have specialized knowledge in areas such as hearing impairment, African American English, or second language learning would be helpful. ____________ After his conviction, Brendan Dassey began a series of appeals. In August of 2016 his conviction was overturned in federal district court. But Wisconsin prosecutors appealed the decision to the US Seventh Circuit Court of Appeals. In June, 2017 a three-judge panel upheld the decision to overturn. Prosecutors appealed again, and in December, 2017, the Seventh Circuit upheld the conviction in a split (4 – 3) decision. Dassey’s lawyers appealed all the way to the United States Supreme Court. In June 2018 the Court declined to hear the case, effectively ending the appeals process for Brendan. On December 20th, 2019, Wisconsin governor Tony Evars denied Brendan Dassey’s application for clemency. The Wisconsin governor’s pardon power is not absolute and unfortunately, Brendan does not qualify for a pardon. Brendan may be eligible for a commutation, or shortening, of his sentence, but that request was also denied. His lawyers continue to pursue the possibility of a commutation.
 For more information on this topic, see: https://www.innocenceproject.org/exoneration-statistics-and-databases/  Michael E. Lamb et al., (2007). “A Structured Forensic Interview Protocol Improves the Quality and Informativeness of Investigative Interviews with Children: A Review of Research Using the NICHD Investigative Interview Protocol,” 31 Child Abuse & Neglect, 1201, 1209. See also: Poole, D. A., & Lamb, M. E. (1998). “A flexible interview protocol.” In D. A. Poole & M. E. Lamb, Investigative interviews of children: A guide for helping professionals (p. 105–148). American Psychological Association. https://doi.org/10.1037/10301-004  Mary Schollum, (2017). “Bringing PEACE to the United States: A Framework for Investigative Interviewing.” Police Chief, Nov. For information about how speech and language disorders affect individuals’ ability to access the criminal justice system (cjs), see: https://www.rcslt.org/-/media/Project/RCSLT/justice-evidence-base2017-1.pdf * Take a look at the table that begins on p. 13 for a summary of the available literature on this topic. For a summary on how police interrogation in the UK addresses this issue and the p.e.a.c.e. interviewing framework, see: https://www.innocenceproject.org/how-the-uk-police-interview-suspects/ https://www.app.college.police.uk/app-content/investigations/investigative-interviewing/ For information on advocacy for juveniles and vulnerable adults in the U.K. criminal justice system, see: https://appropriateadult.org.uk/information/what-is-an-appropriate-adult https://www.rethink.org/advice-and-information/rights-restrictions/police-courts-and-prison/appropriate-adult-at-the-police-station/  Doyle, Arthur Conan (1996). “The Adventure of the Blanched Soldier.” In Sherlock Holmes: The Complete Facsimile Edition (p. 1071-1082). Wordsworth Editions.