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The 7th Circuit: Making a mess of confession law

Dassey v. Dittman, 2017 WL 6154050, (7th Cir. 12/8/17)

This is the decision Making a Murderer watchers have been waiting for. Critics and ivory tower dwellers will celebrate the result (a 4-3 win for the prosecution) but also the concise, dispassionate exposition of the law on involuntary confessions and its application to a hypothetical Brendan Dassey–someone mature, intelligent, unsusceptible to manipulation or coercion by “interviewers.” Documentary fans and lawyers having real world experience representing clients with diminished mental capacity will prefer Chief Judge Diane Wood’s biting dissent. She nails the flaws in the majority’s reasoning and applies the law to the human Dassey–a 16-year old with an IQ in the low 80s.

To recap, the Eastern District of Wisconsin granted Dassey’s petition for writ of habeas corpus. The Seventh Circuit affirmed in a 2-1 decision. The State of Wisconsin petitioned for rehearing en banc and won in a 70-page, 4-3 decision. Judge Wood dissented, joined by Rovner and Williams. Judge Rovner also filed a separate dissent.

The majority opinion. The AEDPA required Dassey to show that the Wisconsin court of appeals’ decision was (1) contrary to, or an unreasonable application of, clearly established supreme court precedent, or (2) an unreasonable determination of the facts in light of the evidence presented in state court. 28 U.S.C. §2254(d).

All agree that, under SCOTUS precedent, when deciding whether confession is voluntary a court must assess the totality of the circumstances–both the characteristics of the accused and the details of the interrogation. But the majority stresses that SCOTUS:

  • has not distilled this voluntariness test into a set of hard rules. However, we do know that confession may be involuntary where the police used coercive tactics like physical abuse, prolonged interrogations, or prolonged detention paired with repeated short questioning. Op. at 6.
  • has never held that interrogation tactics that don’t involve physical or mental exhaustion are coercive. Op. at 8.
  • has held that false promises are not per se coercion but may be evidence of involuntariness when used with more coercive tactics or with vulnerable suspects. Op. at 8.

Juvenile suspects  qualify as “vulnerable.” Thus, the majority acknowledges that courts are to take “special care” when assessing the voluntariness of their confessions. Op. at 9. Here is the majority’s assessment of the state circuit court’s treatment of Dassey’s confession:

Throughout the interview, the judge found, the investigators had used “a normal speaking tone with no raised voices, no hectoring, or threats of any kind.” “Nothing on the video‐tape visually depicts Brendan Dassey as being agitated, upset, frightened, or intimidated by the questions of either investi‐ gator,” and he “displayed no difficulty in understanding the questions asked of him,” the judge found. Though at times “prodded to be truthful,” at “no time did he ask to stop the interview or request that his mother or a lawyer be present.” The admonitions, the judge found, amounted to “nothing more than a reminder to Brendan Dassey that he had a moral duty to tell the truth.” The judge also found that Dassey was not coerced by the “interviewers occasionally pretending to know more than they did” because that “did not interfere with [his] power to make rational choices.” And finally, the judge found that “[n]o frank promises of leniency were made by the … interviewers to Brendan Dassey,” and that he was in fact flatly told “we can’t make any promises.” Op. at 24.

The court of appeals affirmed the above analysis in 2 paragraphs. The majority found that sufficient. After all “[s]tate court decisions receive significant deference event if they provide no reasons at all.” Op. at 30.  Bottom line:

Dassey simply has not pointed to Supreme Court precedent that mandates relief under these circumstances. Even in cases where deferential review under AEDPA does not apply, the Supreme Court has not found a confession involuntary in circumstances like Dassey’s March 1st confession.  Op. at 31.

Dassey also argued that the state courts made an unreasonable finding of fact: that his questioners made no false promises of leniency. To this the majority says: “the Supreme Court has not treated general assurances of leniency in exchange for cooperation or confession as coercive.” Op. at 33.

These debates over interrogation techniques have not resulted in controlling Supreme Court precedent condemning the techniques used with Dassey. Absent a clear declaration from the Court, we may not create new constitutional restraints on habeas review. Op. at 37.

Highlights from the dissent by Wood.”20 Questions,” in which Brendan Dassey guessed over and over again before he landed on the “correct” story (i.e., the one the police wanted), led to the “confession” that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts. Turning a blind eye to these glaring faults, the en banc majority has decided to deny Dassey’s petition for a writ of habeas corpus. . . . Op. at 40.

As the district court and the panel majority recognized, we have before us just such an extreme malfunction. Dassey at the relevant time was 16 years old and had an IQ in the low 80s. His confession was coerced, and thus it should not have been admitted into evidence. And even if we were to overlook the coercion, the confession is so riddled with input from the police that its use violates due process. Dassey will spend the rest of his life in prison because of the injustice this court has decided to leave unredressed. Op. at 40.

Dassey was a minor, and the state courts failed to review his confession and the record with “special care”:

When asked at oral argument where one might find evidence that the state appellate court took the required special care, counsel for the state came up dry. All counsel could do was to point out a brief mention in the state court’s opinion of Dassey’s age and mental capabilities. But so what? The Supreme Court has never said or implied that the totality of the circumstances are beside the point as long as the state court simply jots down a fact without a hint about if or how that fact influenced the outcome. There is nothing “special” (or even meaningful) about a naked word on a page. The reader has no idea whether the state court mentioned the word meaning to indicate that it found the factor irrelevant (which would have been inconsistent with the clear Supreme Court precedent listed above), or exculpatory, or damning. Notably, even though the Wisconsin Court of Appeals gave a nod to the totality test, it made no mention of the special‐care standard for juvenile confessions. Op. at 41-42.

The officer’s used an interrogation tactic known as the “Reid Technique.”

Courts have long expressed concern about approaches such as the Reid Technique that rely on psychological coercion. Just four years after the first edition of the manual was published, INBAU ET AL., supra, at ix, the Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966), “repeatedly cited and implicitly criticized” the Reid approach. Gohara, supra, at 808 n.93; Miranda, 384 U.S. at 457 (“To be sure, this is not physical intimidation, but it is equally destructive of human dignity.”). Miranda commented that the Court for decades had “recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Id. at 448 (quoting Blackburn v. Alabama, 361 U.S. 199, 206 (1960)). Nothing in that respect has changed: the Court continues regularly to hold that psychological coercion can render a confession involuntary. Arizona v. Fulminante, 499 U.S. 279, 287–88 (1991); Miller v. Fenton, 474 U.S. 104, 109 (1985); Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Op. at 45.

Regarding the absence of specific assurance of leniency:

Dassey was reassured across two days of interviews that being “honest” would allow him to go “free.” Although an adult of average intelligence might recognize the Biblical allusion, see John 8:32 (“You will know the truth, and the truth will set you free.”) Dassey was not an adult and not of average intelligence. Instead, he was a mentally limited teenager who did not understand abstractions. Playing their “20 Questions” game, the officers forced Dassey to try out different answers until he stumbled upon the answer they wanted—defined by them as the answer that was sufficiently truthful. And what was Dassey’s response after all this? He asked if he was free to go back to school to turn in a project that was due, and when told that he could not, he indicated that he thought he would be in jail for just one day. No more conclusive evidence of his literalism and his lack of understanding is needed. Op. at 56.

Rovner filed a separate dissent which makes an interesting point. The SCOTUS decisions allowing police to use tricks, conceal evidence, and mislead suspects during interrogations were issued back when it was accepted that “innocent people don’t confess.” We now know that “innocent people do confess, and they do so with shocking regularity.” Op. at 60. But Rovner does not call for a change in the law (though clearly it is time for that). Instead she asks courts to apply the law to modern understanding of human behavior. If you are working on a false confession case, you may want to take a look at her concurrence and data on false confession rates for suspects with various characteristics. Op. at 64.

The majority’s “the supreme court has never clearly held” refrain invites SCOTUS to grant the inevitable cert petition thin this case. We sure can’t wait to read it! Stay tuned for further developments.

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{ 3 comments… add one }
  • Michele LaVigne December 14, 2017, 8:29 am

    I dwell in an ivory tower and believe me, I’m not celebrating this result. In fact, none of the ivory tower dwellers I know are celebrating anything about this obscenity.

  • J leonard December 14, 2017, 12:21 pm

    I agree with Michele LaVigne!

  • Rose Mari Moen March 28, 2019, 1:56 pm

    Brendan is not a Terrorist, nor is he facing the Death Penalty. Exactly witch part of AEDPA applies to his case? Why did 7th Cir. take his case at all when Brendans case is not about antiterrorism or death penalty?
    I wish someone could tell me.

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