MILWAUKEE – Sixteen years ago yesterday, Brendan Dassey was arrested for a crime
he did not commit. On the anniversary of that arrest, Dean Strang and Jerry Buting sent
an open letter to Governor Tony Evers urging the governor to exercise his constitutional
power to free Brendan by commuting his sentence. A copy of the letter is enclosed. Strang
and Buting never have represented Brendan Dassey. They represented his uncle, Steven
Avery, in a trial that occurred before Brendan Dassey’s on the same crime.
In their letter, Strang and Buting describe the injustice of Brendan’s case and the
Governor’s responsibility to use the tools at his disposal to right this wrong. They write,
“By constitutional design, you can be a governor of grace, not of cruelty or cowardice.
We urge you now to be exactly that.”
The Wisconsin Constitution grants Governors of the State of Wisconsin the sole
constitutional power of clemency. Governor Evers has, in part, used this power to grant
pardons to deserving individuals. The Governor has not yet exercised his ability to
commute or cut short a sentence for other deserving Wisconsin inmates, like Brendan.
In October 2019, lawyers for Brendan Dassey filed a petition for executive clemency with
the Wisconsin Board of Pardons. The petition asked the Board to consider both a pardon,
which would result in Brendan’s immediate release and the restoration of his civil rights,
and a commutation, which could result in his immediate release or shorten his sentence
but would leave the convictions intact. Grounds for clemency included Brendan’s
innocence, his provably false confessions, and the extreme length of his sentence. More
than 250 legal and psychological experts supported that clemency petition and Brendan’s
freedom, and hundreds of thousands of people from Wisconsin to Australia expressed
their own support by signing an online petition, at www.bringbrendanhome.org/.
The history of his case is familiar. In 2007, special education student Brendan Dassey was
sentenced to life in prison based on a videotaped confession he gave at age 16 that is now
widely understood to be false and was inconsistent with the physical evidence at the
crime scene. Incarcerated since age 16, Brendan turned 32 years old on October 19, 2021.
He is not eligible for parole until 2048, at which time he will be 59 years old.
Brendan came within days of release in 2016, after a federal judge in Milwaukee found
“significant doubts as to the reliability of Dassey’s confession” and ordered his release
and retrial. That order was reversed by a sharply divided appeals court, which found, in
a 4-3 decision, that even though Brendan was “offer[ing] what seemed like guesses”
during the interrogation, that did not create a legal requirement that his conviction be
overturned. The dissenting judges, led by Chief Judge Diane Wood, called the ruling a
“profound miscarriage of justice.” A summary of Brendan’s case is attached.
Brendan’s case has led to some reforms, including new statutes in Illinois and California
requiring counsel for young children in the interrogation room and prohibiting police
from lying to juveniles during interrogation. His interrogation videotape is also now used
to train police nationwide “how not to interrogate” disabled kids, said David Thompson,
president of leading police training firm Wicklander Zulawski, the second-largest such
firm in the United States.
Still, Governor Evers has not granted any form of clemency to Brendan Dassey. Neither
has he commuted a single sentence for any inmate in Wisconsin during his first three
years in office. In that limited respect, Governor Evers has the same record as his
predecessor, former Governor Scott Walker, who never granted a single request for
clemency of any kind.
While Governor Evers does deserve credit for granting hundreds of pardons of people
whose sentences were completed long ago, pardons do not address the ongoing mass
incarceration problem in Wisconsin and the country. Commutations—which shorten the
sentences of current, deserving inmates—could begin to address that mass incarceration
problem, as Buting and Strang note in their letter.
About Jerome F. Buting and Dean A. Strang
Jerome Buting has been a criminal defense lawyer in Wisconsin for over 40 years and is
a partner in the Brookfield firm of Buting, Williams & Stilling, S.C. He is a frequent public
speaker and the author of Illusion of Justice: Inside Making a Murderer and America’s Broken System (Harper Collins 2017). He and Dean Strang are co-founders, with Prof. Keith Findley, of the non-profit Center for Integrity in Forensic Sciences.
Dean Strang has been a criminal defense lawyer in Wisconsin for over 33 years, was the
state’s first Federal Defender, and is a fulltime law professor at Loyola University
Chicago School of Law. He is the author of two books of legal history and several law
review articles. Strang remains Of Counsel to StrangBradley, LLC in Madison.