Brendan Dassey v. Michael A. Dittmann, U.S. District Court (E.D. Wis.) No. 14-CV-1310, 2016 WL 4257386, 8/12/16
Brendan Dassey was charged with homicide and sexual assault after confessing to being involved in the murder of Teresa Halbach along with his uncle, Steven Avery. He challenged his confession, arguing it was involuntary, but the trial court and court of appeals disagreed. In a lengthy, fact-intensive decision, a federal magistrate holds that the state courts’ conclusions involve both an unreasonable determination of the facts and an unreasonable application of clearly established federal law.
The unreasonable determination of the facts involves the state courts’ finding that the police investigators never made Dassey any promises during the interrogation in which he confessed. Dassey was 16 at the time, with borderline to below average intellectual ability, and was not accompanied by his mother or other supportive adult; instead, the interrogators suggested they were looking out for interests. And during the interrogation, the investigators repeatedly claimed to already know what happened on the day Halbach disappeared and assured Dassey that he had nothing to worry about if he supplied the incriminating details they already knew. (Slip op. at 5-20, 74-83). Based on the copiously recounted facts, the magistrate concludes that “the state courts’ finding that there were no ‘promises of leniency’ … was ‘against the clear and convincing weight of the evidence,’” and “[a] state court decision that rests upon a determination of fact that lies against the clear weight of the evidence is, by definition, a decision ‘so inadequately supported by the record’ as to be arbitrary and therefore objectively unreasonable.” (Slip op. at 83-84 (quoting, respectively, the Wisconsin Court of Appeals decision, ¶6, and Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003))).
The state courts also unreasonably applied the law governing voluntariness of confessions:
The primary error in the court of appeals’ terse decision was its focus on facts in isolation and its failure to assess voluntariness under the totality of circumstances. Although the court of appeals correctly noted the totality of the circumstances standard ([Wisconsin Court of Appeals decision,] ¶5), its decision does not reflect its application. For example, omitted from its discussion is any consideration of how the absence of a parent or allied adult affected the voluntariness of Dassey’s confession. Nor does the court of appeals’ decision reflect any consideration of how the investigators overcame Dassey’s resistance by deliberately exploiting the absence of his mother, feigning paternalistic concern for his best interests and by statements such as, “Your mom said you’d be honest with us.” ….
Most significantly, however, the court of appeals erred when it focused on the statements of the investigators in isolation to conclude that they did not make any promises of leniency. True, no single statement by the investigators, if viewed in isolation, rendered Dassey’s statement involuntary. But when assessed collectively and cumulatively, as voluntariness must be assessed, it is clear how the investigators’ actions amounted to deceptive interrogation tactics that overbore Dassey’s free will.
More than merely assuring Dassey that he would not be punished if he admitted participating in the offenses, the investigators suggested to Dassey that he would be punished if he did not tell “the truth.” …. However, because the investigators’ assertions that they already knew what happened were often false, “the truth” to the investigators was often merely whichever of Dassey’s version of events they eventually accepted. Thus, as long as Dassey told a version the investigators accepted as “the truth,” he was led to believe he had no fear of negative consequences. But if the investigators did not accept as true the story Dassey told them, he was told there would be repercussions.
Especially when the investigators’ promises, assurances, and threats of negative consequences are assessed in conjunction with Dassey’s age, intellectual deficits, lack of experience in dealing with the police, the absence of a parent, and other relevant personal characteristics, the free will of a reasonable person in Dassey’s position would have been overborne. Once considered in this proper light, the conclusion that Dassey’s statement was involuntary under the totality of the circumstances is not one about which “fairminded jurists could disagree.” See [Harrington v.] Richter, 562 U.S. [86,] 101 [(2011)] (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Consequently, the court finds that the confession Dassey gave to the police on March 1, 2006 was so clearly involuntary in a constitutional sense that the court of appeals’ decision to the contrary was an unreasonable application of clearly established federal law.
(Slip op. at 85-88).
Finally, the admission of Dassey’s confession was not harmless:
“A confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.’” [Arizona v.] Fulminante, 499 U.S. [279,] 296 [(1991)] (quoting Bruton v. United States, 391 U.S. 123, 139-40 (1968) (White, J. dissenting)). A confession can be so decisive and “so profoundly prejudicial” in the adversarial process as to “make[ ] the other aspects of a trial in court superfluous.” [Colorado v.] Connelly, 479 U.S. [157,] 182 [(1986)] (Brennan, J., dissenting). Having thoroughly reviewed the trial transcript, the court has no difficulty concluding that the admission of Dassey’s confession was not a harmless error. Dassey’s confession was, as a practical matter, the entirety of the case against him on each of the three counts.
(Slip op. at 89).
Dassey also argued his first trial attorney was ineffective under Cuyler v. Sullivan, 446 U.S. 335 (1980) (where counsel’s performance is affected because he is actively represented conflicting interests, no showing of prejudice is required). Dassey claimed trial counsel was laboring under a conflict of interest by encouraging Dassey to speak again with investigators without an attorney and encouraging him to admit his involvement and bolster the state’s case, on the assumption that Dassey would cooperate with the state and be a witness against Avery. The magistrate agrees that trial counsel’s conduct “was inexcusable both tactically and ethically” (slip op. at 50), but finds he wasn’t ineffective under Cuyler:
…Dassey asserts that “there can be no doubt that [trial counsel] labored under an ‘actual conflict’”…, but he never explicitly identifies the nature of [counsel’s] alleged conflict. The closest Dassey comes is when he asserts, “the problem is that [counsel] actively and concurrently worked for two masters: the prosecutor and (or, often, at the expense of) his own sixteen-year-old client.” …. Dassey never identifies any sort of relationship that [counsel] had with the prosecutor that establishes a conflict of interest in the sense that the term is generally used. See, e.g., Wis. SCR 20:1.7, 20:1.8 (attorney ethical rules regarding conflicts of interest). [Counsel] was not concurrently employed by the prosecutor’s office, did not have any personal relationship with the prosecutor’s office, nor did he have any financial (or other) interest in the work of the prosecutor’s office. Cf. Blankenship v. Johnson, 118 F.3d 312, 318 (5th Cir. 1997) (finding conflict of interest when defendant’s appellate counsel was concurrently a county attorney).
(Slip op. at 52). Dassey did not make an alternate claim under Strickland v. Washington, 466 U.S. 668 (1984), that trial counsel was ineffective based on the unreasonableness of his advice and approach. (Slip op. at 55-58).
For more coverage, with links to transcripts and a video of the interrogation in question, see this Milwaukee Journal-Sentinel article. UPDATE (8/15/16): And here’s a podcast interview of Dassey’s postconviction attorneys recorded before the opinion was issued.