Inside 'Making a Murderer'

To the Netflix generation, it would be nearly impossible for a lawyer to do anything more significant than appear in Making a Murderer, the streaming service’s megahit series that captivated 19 million viewers within a month of its debut just before Christmas in 2015.

Steven Drizin ’83 plays an important supporting role in what Netflix calls its “real-life thriller,” which raises disturbing questions about whether police framed the two men convicted of killing Teresa Halbach, a 25-year-old photographer. Drizin appears in the inaugural season as well as in Season 2, released in October 2018, as one of the attorneys representing Brendan Dassey, who was just 16 when he confessed to participating with his uncle Steven Avery in Halbach’s murder on Halloween 2005 in rural Manitowoc County, Wisconsin. Both Avery and Dassey were convicted of Halbach’s murder.

Avery was the focus of the first season because, before the murder, he had spent 18 years behind bars for a sexual assault in the same county before DNA evidence eventually proved he didn’t commit the crime. The looming question for Making a Murderer: Could he have been wrongly convicted a second time?

Yet much of viewers’ visceral reaction was provoked near the end of Season 1 by footage from a video of seasoned investigators interrogating Drizin’s teenage client, the unsophisticated special-education student Dassey, who eventually confesses to the murder.

Then in Season 2 Drizin, a clinical professor of law at Northwestern University’s Pritzker School of Law, and Northwestern colleague Laura Nirider achieved a rare legal feat when their habeas corpus petition for Dassey was granted. An estimated 99 percent of such petitions fail. But the pair convinced a federal judge that the way investigators had pressured and made promises to Dassey violated his constitutional rights and rendered his confession involuntary and unreliable. Eleven years after the murder, a federal magistrate judge threw out Dassey’s conviction.

Viewers of Season 2 watch as Drizin, Nirider, and their students fight to preserve Dassey’s legal victory, only to see his conviction reinstated by a higher court. The season ends as the United States Supreme Court refuses to hear Dassey’s appeal.

As big a phenomenon as Making a Murderer has been, it pales beside Drizin’s more significant legal triumph—one that occurred before Netflix ever started streaming. That is: abolishing the death penalty for juveniles like Dassey.

Early Work in Wrongful Convictions:

A Philadelphia native, Drizin, whose parents were public-school teachers, spent three years at Haverford before he thought about becoming a lawyer. The trigger was a summer internship in Washington, D.C., when the political science major worked as an investigator for the Public Defender Service, which represents indigent people charged with crimes.

“I saw lawyers who were heroic on a daily basis, and that gave me some direction for what I wanted to do after I graduated,” Drizin says from his Northwestern office in downtown Chicago.

In 1986, Drizin earned his law degree at Northwestern, where he met his wife, Beth Levine, now a family therapist and college counselor. (The couple has four children: Ben, 27, Jeremy, 25, Gabriel, 22, and Hannah, 20.) For four years he practiced commercial litigation in Chicago, taking a year off to serve as clerk to U.S. District Court Judge Ilana Rovner in Chicago.

(Twenty-eight years later, Rovner would be among the federal appellate judges, acting on Drizin’s habeas petition, who ultimately decided Dassey’s fate.)

The work Drizin became known for grew out of the 12 years, starting in 1993, he served as the supervising attorney at Northwestern’s Children and Family Justice Center. Two highlights mark this period.

In 2002, he won the reversal of a murder conviction of one of his juvenile clients. Identified only as A.M. because of his age, Drizin’s client was 11 years old at the time he was arrested for the murder of an 83-year-old Chicago woman in 1993. As in Dassey’s case, Drizin was unsuccessful in his attempts to get the boy’s conviction reversed in state court. It took a federal judge to rule that Chicago police had illegally arrested and coerced his confession. The boy had initially been questioned as a potential witness; then, after other leads didn’t materialize, he was interrogated nearly a year later and allegedly confessed.

And in 2003, Drizin cowrote a brief in a case that led the Wisconsin Supreme Court, two years later, to issue a rule requiring Wisconsin police to electronically record all juvenile interrogations. In that case, the court determined that police had coerced a confession from a 14-year-old boy in a robbery.

“Without a contemporaneous record of the interrogation, judges are forced to rely on the recollections of interested parties to reconstruct what occurred,” wrote the state supreme court. “The result is often a credibility contest between law enforcement officials and the juvenile, which law enforcement officials invariably win. The existence of an objective, comprehensive, and reviewable record will safeguard juveniles’ constitutional rights by making it possible for them to challenge misleading or false testimony.”

Abolishing the Juvenile Death Penalty:

What Drizin calls the most meaningful work of his career occurred in 2005, in what was a banner year for him. Besides the Wisconsin Supreme Court ruling on recording juvenile interrogations, Drizin became legal director of the renowned Center on Wrongful Convictions at Northwestern. And he and Haverford graduate Stephen K. Harper ’76, a public defender in Miami, along with other lawyers, devised the legal strategy that led to the U.S. Supreme Court decision that abolished the death penalty for juvenile offenders.

Drizin notes they had begun developing the strategy in late 1999 during a time when teens who were charged with serious offenses had come to be viewed as remorseless, cold-blooded criminals.

“We were ambitious,” Drizin recalls. “People thought we were crazy: ‘Why are you trying to get rid of the juvenile death penalty in the age of the juvenile super-predators?’ ”

Harper, he says, “had been reading all about new developments in adolescent brain science that revealed that teenage brain development continues in the areas of the prefrontal cortex that governs decision making, well through your teens and into your early twenties. And so now there was a new scientific basis for distinguishing between children and adults, in terms of their culpability. And that became a new platform upon which we could argue for the abolition of the death penalty.”

In 2004, the high court accepted the Missouri case of Christopher Simmons, who at age 17, with an accomplice, kidnapped a woman, tied her up, and threw her off a bridge, drowning her. Simmons was sentenced to death in 1993. But around the country and throughout the world, there was a growing consensus that juveniles should be treated differently than adults when it comes to capital punishment.

“Our determination finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,” Justice Anthony Kennedy wrote in the 5-4 decision, which struck down the death sentences for six dozen people convicted as juveniles.

In that case, Drizin had cowritten a brief that said in part:

All told, this recent research confirms that 16- and 17-year-olds as a class are less capable of controlling their impulses than adults, and thus are less likely than adults to be deterred from committing capital crimes by the prospect of execution. On a separate but equally important front, social science research has recently demonstrated the special vulnerability of 16- and 17-year-olds to confess to crimes that they did not commit.

The high court decision (made two years before Netflix introduced streaming in 2007) had ripple effects.

“The reality is that, as long as you live in a world where it’s OK to execute juveniles, then sentencing them to life without parole, or 65 years before they’re eligible for parole, becomes acceptable and seems like you gave the juvenile a break,” Drizin says. “And my main goal in working to abolish the juvenile death penalty was to open these draconian sentences for study, debate, and ultimately abolition, because there were thousands of kids serving juvenile life-without-parole sentences.”

While working to abolish the death penalty, Drizin also represented a number of juveniles who he believed had falsely confessed to crimes, so he began documenting and analyzing such cases. That work culminated in a journal article he cowrote on 125 cases of false confessions.

Drizin says the article became very influential; it has been cited several times by the U.S. Supreme Court, and many times by state and federal courts, and is frequently cited by lawyers and academics around the country. It increased judges’ awareness of false confessions, he says, and was a precursor to a 2009 book he co-edited, True Stories of False Confessions.

Of course, it was a confession—no physical evidence—that led to Dassey’s conviction in the Making a Murderer case.

Making a Murderer:

Drizin and Nirider began representing Dassey in 2007, after the state court jury in Wisconsin convicted the teen in the Halbach murder. (Avery was tried separately.) Avery was sentenced to life without parole. Dassey was sentenced to life in prison with the possibility of parole after 41 years. Drizin’s efforts to reverse Dassey’s conviction in appeals in Wisconsin’s state courts failed.

But then Drizin and Nirider made the move to federal court. In 2016, nine years after Dassey’s conviction, a federal magistrate judge in Milwaukee, former business litigation lawyer William Duffin, shocked the legal and Making a Murderer worlds by granting their habeas petition, saying investigators had violated Dassey’s constitutional rights in gaining his confession. Citing how the interrogators used “leading questions and disclosure of non-public facts” in questioning Dassey, Duffin wrote: “It is clear how the investigators’ actions amounted to deceptive interrogation tactics that overbore Dassey’s free will.”

For a time, there was hope that Dassey would get a new trial—without his confession made available as evidence—or that the State of Wisconsin might decide not to retry Dassey and instead set him free. After the state appealed Duffin’s ruling, a three-judge panel of the U.S. District Court in Chicago, in a 2-1 vote in June 2017, upheld his decision throwing out Dassey’s conviction, raising Dassey’s hopes of freedom even higher. That panel was headed by Rovner, the federal judge (and Bryn Mawr College alumna) for whom Drizin had clerked. (In an odd twist, on that same judicial panel, and ruling against Dassey, was David Hamilton ’79.)

The victory, though, was short-lived. A reversal came six months later, after the state appealed again. This time, a seven-member panel of the appeals court decided, 4-3, to reinstate Dassey’s conviction. The majority were swayed that Dassey had given “many of the most damning details himself in response to open-ended questions” and had resisted suggestions of other particular details.

The three dissenters, including Rovner, called that decision “a travesty of justice.” But the U.S. Supreme Court refused to consider the case.

Drizin says he initially believed that Dassey would win, figuring that the vote would be 4-4 and the decision to overturn Dassey’s conviction would stand. But Appeals Court Judge Richard Posner, whose past opinions on confession issues gave Drizin some hope he would rule in Dassey’s favor, abruptly retired before Dassey’s case could be heard. Drizin says he knew at that point that Dassey would lose, 4-3, and all seven votes turned out the way he had expected.

“That was frustrating because it seems like our best chance of winning was lost through no fault of our own; it was just bad luck,” Drizin says. “Had Judge Posner chosen to retire three months later, Brendan Dassey’s case may have been resolved in our favor, and he’d be a free man today. It was extremely painful to lose by one vote, but not unexpected.”

Nevertheless, Drizin says, Making a Murderer has gone a long way to changing perceptions about the criminal justice system.

“I think the general public really had no idea that you could interrogate a child outside the presence of their parents, that you could lie to a child,” he says. “I think they had never seen before the way in which police officers will feed facts to a suspect during an interrogation.”

“I think people are under the impression that they would never confess to a murder they didn’t commit,” says Drizin, winner of the 2018 Haverford Award, which recognizes alumni who put their “knowledge, humanity, initiative, and individuality” to highest use.

“A major part of the last 20 years of my career has been trying to disabuse people of that idea—to try to take them inside the interrogation room and demonstrate for them the kind of pressure that is brought to bear, which includes tactics that manipulate people into thinking that it’s actually in their best interest to confess. And I think that Making a Murderer has shined the brightest spotlight on how these tactics easily overwhelm juvenile suspects and increase the chances they will falsely confess.”

The series’ popularity also has transformed Drizin’s life as a lawyer by giving him a much larger platform to continue to advocate for change in the legal system’s treatment of juveniles. He’s active on Twitter (@SDrizin), posting daily his takes on wrongful convictions and false confessions that turn up in the news. He says that in 2017 alone, he and Nirider gave roughly 40 lectures throughout the country, and later traveled to speak in the United Kingdom. In March their speaking tour took them to Australia and New Zealand. In addition to speaking about false confessions, Drizin has taken action to prevent them, helping lawyers in Illinois and California to pass laws requiring that attorneys be present when juvenile suspects are questioned about a crime.

Drizin was also well received on the screen. USA Today said that in Season 2, he and Nirider “are refreshingly, well, grown-up. Their logical, reasoned arguments for Dassey’s innocence and their professionalism are in stark contrast to the state prosecutors and investigators from the earlier years of the case, many of whom loiter around the new court proceedings.”

Drizin says he is continuing to look for ways to try to free Brendan Dassey. “The exonerations are important. It’s a tremendous feeling of satisfaction when you essentially get the system to acknowledge a mistake and you have the power to rewrite history. That’s what it’s about: changing the legacy of this person’s life,” he says. “But it’s the cases of unrequited innocence that stick with you more than the victories. The victories sustain you, but it’s the losses that motivate you.”