Constitutional Law

En banc 7th Circuit reinstates Brendan Dassey's conviction in 'Making a Murderer' case

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Brendan Dassey. Netflix

Brendan Dassey. Netflix

An en banc federal appeals court has reinstated the conviction of Brendan Dassey for helping his uncle kill a woman in a case featured in the Making a Murderer Netflix series.

In s 4-3 decision, the Chicago-based 7th U.S. Circuit Court of Appeals upheld state court findings that Dassey’s confession was voluntary and could be used against him. A 7th Circuit panel had reached the opposite conclusion in a 2-1 decision in June.

Dassey had confessed to helping his uncle, Steven Avery, kill photographer Teresa Halbach. She had gone to Avery’s auto salvage business on Halloween 2005 and never returned. Her charred remains were found in a burn pit on the property, and shell casings were found on the floor of Avery’s garage. At trial, Dassey was convicted of participating in rape and murder and mutilating a corpse. He was sentenced to life in prison.

The issue was whether the state court findings upholding the confession constituted an unreasonable application of Supreme Court precedent or an unreasonable view of the facts, according to the majority decision by Judge David Hamilton.

The state court finding “was not beyond fair debate, but we conclude it was reasonable,” Hamilton said.

Factors supporting a finding that the confession was voluntary include Miranda warnings given to Dassey, his mother’s consent to questioning, the comfortable setting, the short time period, and the lack of physical coercion or intimidation, Hamilton said.

In addition, “Dassey provided many of the most damning details himself in response to open-ended questions,” Hamilton said. “On a number of occasions he resisted the interrogators’ strong suggestions on particular details. Also, the investigators made no specific promises of leniency.”

Hamilton also said that Dassey “was not subject to physical coercion or any sort of threats at all.” That is important, he said, “given the history of coercive interrogation techniques from which modern constitutional standards for confessions emerged.”

Brendan Dassey

Brendan Dassey. Photo by Tracy Symonds-Keogh, via Wikimedia Commons

Hamilton acknowledged some factors that would support a finding that the confession wasn’t voluntary. They include Dassey’s youth (he was 16 at the time), his limited intellectual ability, some suggestions by the interrogators, inconsistencies in the confession, and assurances that honesty would produce leniency.

In his first interview with police, Dassey said he saw Halbach taking photos on the day in question. After learning Dassey had been crying uncontrollably and losing weight, police interviewed him again in February 2016.

Dassey said he had gone to Avery’s trailer to help with a bonfire and he had seen parts of the body in the fire. He also said he helped clean up a spill on the garage floor.

When he was interviewed again on March 1, Dassey said he had found the photographer dead in her car, and he helped take the body to the bonfire. Further into the interview, he changed his story and said he heard a woman screaming inside Avery’s trailer, and he saw Halbach handcuffed to the bed. Avery said he had raped the woman, and he encouraged Dassey to do the same. Dassey complied.

Later, Dassey said he helped Avery kill Halbach, and that she had been stabbed. Investigators believed Halbach had been shot in the head, but Dassey didn’t offer anything about a shooting when they asked what was done to her head. Finally an investigator asked who shot Halbach in the head, and Dassey offered that “he did.”

Later Dassey revised upward the number of times that Halbach was shot and revised the location of the shooting. When Dassey’s mother arrived, he told her “they got to my head.” At trial, he denied knowledge of or participation in the murder.

A dissent by Chief Judge Diane Wood argued the confession was coerced and it should not have been admitted into evidence.

“Psychological coercion, questions to which the police furnished the answers, and ghoulish games of ‘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,” said the dissent, joined by Judges Ilana Rovner and Ann Williams.

Rovner wrote a separate dissent saying courts need to update their understanding about the nature of coercion in confessions.

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