Dec. 14, 2017 – Brendan Dassey, who confessed to murder in 2005 and was featured in the popular Netflix docuseries “Making a Murderer,” recently lost an appeal to the U.S. Court of Appeals, sitting en banc, which upheld a Wisconsin state court decision.
Dassey was 16 years old when he confessed to participating in the rape and murder of Teresa Halbach with his uncle, Steven Avery, at Avery’s salvage yard near Manitowoc. He was tried as an adult, convicted, and sentenced to life in Wisconsin state prison.
A Manitowoc County Circuit Court judge, in 2007, had ruled that Dassey’s confession to police was voluntary, despite an argument that it was involuntary based on Dassey’s age, intellectual limitations, police interrogation tactics, and conflicting statements.
In 2013, the Wisconsin Appeals Court upheld the conviction, concluding that it was not clearly erroneous for the circuit court to rule that Dassey’s confession was voluntary.
“Making a Murderer” was released in 2015, sparking a public outcry. It showed video footage from the interrogation and highlighted other aspects of the case, including actions by Dassey’s pre-trial attorney, which suggested a miscarriage of justice.
With the help of Northwestern University’s Center on Wrongful Convictions of Youth and Wisconsin attorney Robert Dvorak, Dassey began the federal habeas corpus appeals process, which has been closely followed by observers on a national stage.
In 2016, the U.S. District Court for the Eastern District of Wisconsin, Magistrate Judge William Duffin, overturned the conviction, granting the writ of habeas corpus.
Judge Duffin ruled that the confession was involuntary and the state appeals court decision “was an unreasonable application of clearly established federal law.”
In June, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit upheld the decision (2-1), concluding the confession was involuntary and the state court decisions were reversible, despite the high burden for prisoners who were convicted in state court under the Antiterrorism and Effective Death Penalty Act (AEDPA).
“We, like the district court, have kept the strict constraints of the AEDPA forefront in our minds as we proceed with our de novo review of the district court's decision to grant the habeas petition,” wrote Judge Ilana Rovner, joined by Judge Ann Claire Williams.
“Yet even given the constraints of the AEDPA, we must conclude that the state court's determination was an unreasonable application of Supreme Court precedent.”
Tough Standard to Overcome, Notes Majority in Reversing
The Seventh Circuit Court of Appeals agreed to hear the case en banc and in Dassey v. Dittman, No. 16-3397 (Dec. 8, 2017), a 4-3 majority reversed.
“The state courts' finding that Dassey's confession was voluntary was not beyond fair debate, but we conclude it was reasonable,” wrote Judge David Hamilton.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The majority noted that the AEDPA governs habeas corpus petitions that challenge state court convictions and determines that a state court conviction “cannot be overturned unless the state courts’ adjudication of a federal claim on the merits:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
Federal habeas relief from state convictions is rare, the majority noted. “It is reserved for those relatively uncommon cases in which state courts veer well outside the channels of reasonable decision-making about federal constitutional claims.”
Reviewing the Wisconsin Court of Appeals decision, the majority ruled that it could not rule in Dassey’s favor because the appeals court decision was not unreasonably wrong.
“The issue is not whether federal judges agree with the state court decision or even whether the state court decision was correct,” Judge Hamilton wrote. “The issue is whether the decision was unreasonably wrong under an objective standard.”
Not Unreasonably Wrong
The majority rehashed the circumstances of Dassey’s confession, which took place several months after the crime occurred. Detectives removed Dassey from school and he waived his Miranda rights and confirmed that he was willing to speak with them.
Detectives questioned the 16-year-old Dassey during a three-hour interrogation and ultimately, Dassey confessed to raping Halbach and helping his uncle kill her. Halbach was a photographer and Avery had hired her to take photos of a car he was selling.
The majority recounted the many details of the three-hour interrogation based on facts from the record. Dassey, at trial, said the story he told was not true and he was vulnerable to the manipulative tactics detectives employed to pin him down.
But the majority ruled that the state appeals court did not unreasonably apply U.S. Supreme Court precedent on confessions under the AEDPA standard:
“The state appellate court drew on fairly detailed findings of fact, which were not clearly erroneous, and provided a terse but sufficient explanation for why the trial court’s decision was a reasonable application of the broad totality-of-the-circumstances test.”
The majority acknowledged facts that supported Dassey’s argument. He was young and alone during questioning. He had intellectual disabilities, and police assured leniency for honesty while asking suggestive questions, “leading him at times to seem to guess.”
“At times it appeared as though Dassey did not grasp the gravity of his confession – after confessing to rape and murder, he asked the officers if he would be back at school that afternoon in time to turn in a project,” Judge Hamilton noted.
But the majority said other factors pointed the other way. For instance, he received Miranda warnings and understood them sufficiently, was interviewed in a comfortable room, was offered food, drinks, and breaks, and his mother had consented.
Police did not use physical or abrasive tactics. They used common police interview techniques. And he volunteered his confessions through open-ended questions.
“Under the AEDPA, the essential point here is that the totality-of-the-circumstances test gives courts considerable room for judgment in cases like this one, where the factors point in both directions,” Judge Hamilton wrote.
“Given the many relevant facts and the substantial weight of factors supporting a finding that Dassey’s confession was voluntary, the state court’s decision was not an unreasonable application of Supreme Court precedent.”
Judge Rovner and Chief Judge Diane Wood filed dissents, joined by Judge Ann Claire Williams. Despite the AEDPA standard, the dissenters concluded that Dassey’s petition should be granted because his confession was involuntary, the state appeals court did not reasonably apply the law, and also made unreasonable factual determinations.
“Because the detectives used coercive interrogation tactics on an intellectually disabled juvenile, Dassey’s will was overborne,” Judge Wood wrote. “Without this involuntary and highly unreliable confession, the case against Dassey was almost nonexistent.”
Judge Rovner wrote separately “to point out the chasm between how courts have historically understood the nature of coercion and confessions and what we now know about coercion with the advent of DNA profiling and current social science research.”