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Seventh Circuit affirms grant of new trial for Brendan Dassey

Brendan Dassey v. Michael A. Dittman, 7th Circuit Court of Appeals No. 16-3397, 2017 WL 2683893, 6/22/17, affirming Dassey v. Pittman, 201 F.Supp.3d 963 (E.D. Wis. 2016).

Over a dissent, the Seventh Circuit holds that the Wisconsin court of appeals unreasonably applied clearly established federal law when they decided that Brendan Dassey voluntarily confessed to being involved with Steven Avery in the murder of Teresa Halbach.

This is a long decision (128 pages), complete with detailed recitations of the facts. This post will give only a bare summary of the case, quote the heart of the majority decision, and summarize the gist of the dissent. Anyone challenging the admission of a juvenile’s confession will want to read the full decision carefully.

Dassey was 16 when he was interrogated and implicated himself in the Halbach murder. His challenges to his confession focused on his claim the police made him promises of leniency if he’d confess and on his age, limited intellectual ability, and absence of a parent or other supportive adult. In affirming the federal district court’s findings and holdings in all respects, the majority says:

…[E]ven given the constraints of the AEDPA, we must conclude that the state court’s determination was an unreasonable application of Supreme Court precedent. Although it identified the general rule that a court must consider the totality of the circumstances, it failed to apply the “special caution” required in juvenile confessions [J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011)] and failed to evaluate the totality factors for juveniles as required. Furthermore, the state appellate court applied the generic totality of the circumstances test to the facts in a way that was objectively unreasonable. See 28 U.S.C. § 2254(d)(1). The trial court’s determination of the facts was also unreasonable as it ignored the clear and convincing weight of the evidence. See 28 U.S.C. § 2254(d)(2); Miller-El v. Cockrell, 537 U.S. [322,] 340 [(2003)]. Although the state appellate court noted that it was obligated to consider the totality of the circumstances, it did not do so. …[I]n juveniles, the evaluation of the totality of the circumstances “includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare [v. Michael C.], 442 U.S. [707,] 725 [(1979)]; see also Murdock [v. Dorethy], 846 F.3d [203,] 209 [(7th Cir. 2017)]; Hardaway [v. Young], 302 F.3d [757,] 762 [(7th Cir. 2002)]. The state appellate court listed Dassey’s age, education and IQ, but it never, at any point, evaluated those factors to determine whether they affected the voluntariness of Dassey’s confession. Likewise the appellate court analyzed some of the investigators’ interrogation techniques, but it never evaluated or assessed how those techniques affected the voluntariness of an intellectually challenged juvenile’s confession. Instead, the state appellate court merely stated that, in cases involving adults of ordinary intelligence, encouraging honesty and using deceptive practices does not make a confession involuntary.

Moreover, the state appellate court ignored the many signs that Dassey was trying to please the interrogators and avoid conflict and a clear-cut pattern of fact-feeding linked to promises that, together, resulted in a situation where Dassey’s will clearly was overborne. That pattern was as follows: the investigators emphasized, ad nauseum, that in order to be “okay” to “get things over with” to be “set free” Dassey had to be “honest.” Yet throughout the interrogation it became clear that “honesty” meant those things that the investigators wanted Dassey to say. Whenever Dassey reported a fact that did not fit with the investigators’ theory, he was chastised and told that he would not be “okay” unless he told the truth. And this pattern continued until Dassey finally voiced what the investigators wanted him to say, seemingly by guessing, or the investigators fed him the information they wanted. Once he spoke “correctly,” the investigators anchored the story by telling Dassey, “now we believe you” to signal to him that this was the version that would allow him to be “okay,” or “set him free.” By doing this—by linking promises to the words that the investigators wanted to hear, or allowing Dassey to avoid confrontation by telling the investigators what they wanted to hear—the confession became a story crafted by the investigators instead of by Dassey. And, as we will see, it was a confession that therefore cannot not be viewed as voluntary. (Slip op. at 27-29).

The dissent (by Hamilton) complains the majority is too dismissive of the state court’s decision because it was so brief: AEDPA “does not authorize federal courts to sit in judgment of the length of state court opinions.” (Dissent at 105). Further, where there’s a very general standard, like voluntariness, AEDPA deference demands allowing substantial room for judgment. (Dissent at 106). And, the dissent contends, the majority “breaks new ground and poses troubling questions for police and prosecutors. It calls into question standard interrogation techniques that courts have routinely found permissible, even in cases involving juveniles.” (Dissent at 107).

The difference in the views of Dassey’s interrogation could hardly be more stark: The majority sees Dassey’s will clearly being overborne, while the dissenting judge sees “a relatively brief and low-key interview of a Mirandized subject who was not mistreated or threatened, whose creature comforts were satisfied, and whose parent consented. If such a gentle interrogation can be treated as unconstitutionally coercive, what should police do the next time an investigation leads to a teenager with some intellectual challenges?” (Dissent at 107). This decision is probably not the final word on Dassey’s confession, as the state can seek to have the case re-heard en banc or, failing there, ask the Supreme Court to review the case.

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{ 4 comments… add one }
  • Peter Heyne June 23, 2017, 9:55 am

    Perhaps this is too pedantic for such a lengthy and important decision, but the court really should spell-check its legal Latin. In the passage block-quoted above, the majority pens, “That pattern was as follows: the investigators emphasized, ad nauseum [sic]….”

    “Nauseam” is the correct spelling, “nausea” being a first declension feminine noun, in the accusative as the object of the preposition “ad.” Contrast to second declension masculine or neuter nouns that have “-um” accusative endings, such as in “ad infinitum.”

    This is the same rule that gives us “per curiam” (“Curia” also being first declension feminine, in the accusative as the object of the preposition “per”). Alas, phonetic (mis)spelling strikes again, and very recently, the Wisconsin Supreme Court used “per curium,” not “per curiam.” See State v. Zimbal, 2017 WI 59, ¶ 17 (June 14, 2017) (“In an unpublished per curium [sic] opinion…”).

    But just as Homer nods, so too even SCOTUS should cry mea culpa for errata: the phonetic “de minimus” rather than the correct ablative plural “de minimis.”

    At last count, there are 7 SCOTUS cases with this error, starting in 1925 and last occurring in 1997. Fortunately, this century SCOTUS twice has noted the error. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 422 n.2, 122 S. Ct. 1516, 1534, 152 L. Ed. 2d 589 (2002) (Souter, J., dissenting) (“The House Report singles out Hardison’s equation of ‘undue hardship’ and anything more than a ‘de minimus [sic] cost’ as being inapplicable to the ADA.”).

    More recently, in a per curiam (not per curium decision) case, see Wilkins v. Gaddy, 559 U.S. 34, 35, 130 S. Ct. 1175, 1177, 175 L. Ed. 2d 995 (2010) (“Citing Circuit precedent, the court stated that, ‘[i]n order to state an excessive force claim under the Eighth Amendment, a plaintiff must establish that he received more than a de minimus [sic] injury.’ “)

    [The maxim has a noble pedigree: nota bene the first appearances in SCOTUS and SCOWIS, respectively: Ware v. Hylton, 3 U.S. 199, 268, (3 Dall.), 1 L. Ed. 568 (1796); and Hass v. Prescott, 38 Wis. 146, 151 (1875).]

    Maybe such “trifles” should not bother, but if a court is going to use legal Latin, at least one ought to be accurate in one’s erudition. To augment a maxim, “ignorantia juris linguae Latinae non excusat.”

  • admin June 25, 2017, 1:40 pm

    De minimus non curat lex.

  • Peter R Heyne July 4, 2017, 12:59 pm

    Caesar (et advocatae/advocati) non supra grammaticos. 😉

  • A. Scott Fulkerson October 20, 2017, 12:01 am

    I would find that since, the officers, as the record shows, made “promises”; that they are, in light of the prevailing contract law, not withstanding any criminal law cases to the contrary, obliged to make good on their contract. Therefore, I would find the criminal prosecution to have been barred by contract. A police officer is a representative of the state. It hence flows that the state is obliged to keep any contract a police officer makes with a suspect notwithstanding Miranda warnings.

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