Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided. I’m Alan Mygatt-Tauber.
This week we’re discussing Dassey v. Ditman, a Seventh Circuit case about an allegedly coerced confession by a mentally challenged minor, made famous by Netflix’s Making of a Murderer documentary.
Brandon Dassey, a mentally challenged 16 year old, confessed on videotape to the 2005 rape and murder of Teresa Halbach, as well as the mutilation of her corpse. The Wisconsin Courts all upheld his convictions, finding that his confession was voluntary. He filed a writ of habeas corpus, arguing that the Wisconsin decisions contradicted Supreme Court precedent. A federal district court granted Dasey’s writ, finding that his confession was involuntary, and a divided panel of the Seventh Circuit affirmed this decision. The full court then reviewed the question. A divided court ruled 4-3 that the confession was voluntary.
The majority began with the observation that the question of whether the confession was voluntary is measured against a general standard that takes into account the totality of the circumstances. While noting that some factors mitigate against a finding that the confession was voluntary, the majority held that many other factors point towards it being a voluntary confession.
The Court acknowledged that the voluntariness of the confession was not beyond fair debate, but the majority felt it was a reasonable conclusion that, under the deference required to be given during habeas review, had to be respected.
The Court noted that the standard of review is governed by the Antiterrorism and Effective Death Penalty Act of 1996, otherwise known as AEDPA. Under this statute, a state court decision can only be overturned by a federal court on habeas review if one of two things is true: 1) the state court decision 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) the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. This is, as the majority noted, a very high standard – the federal court does not look to whether it agrees with the state court decision, or even if that decision was wrong: the appropriate question is whether the decision was unreasonably wrong under an objective standard. Put another way, the Court asks whether the decision was so lacking in justification that there was an error beyond any possibility for fair-minded disagreement. Furthermore, the only law that matters is that of the U.S. Supreme Court.
Having established the appropriate standard of review, the majority then turned to the Supreme Court’s views on confessions. Under that law, the courts look to the totality of the circumstances, including both the characteristics of the accused and the details of the interrogation. The purpose of the test is to determine whether the defendant’s will was in fact overborne. With a general standard like voluntariness, courts have more leeway in making case-by-case determinations. According to the majority, this leeway is what makes the difference under AEDPA.
Under this general standard, the person arguing his confession was involuntary must show that the police engaged in coercive tactics. These tactics need not be physical – attempting to mentally exhaust a defendant counts. Additionally, police are allowed to lie to suspects about what information they already have, without undercutting the voluntariness of the confession. And while false promises to a suspect have been held to be coercion, if the promises are general, rather than specific, they are not deemed to be coercive. Thus, police are allowed to tell suspects that cooperation would be beneficial.
The Court also looks to the characteristics of the suspect, such as his age, intelligence, education, and his familiarity with the criminal justice system. The Supreme Court has called for “special care” when evaluating the voluntariness of juvenile confessions. The presence of a friendly adult, or their consent, can be the difference. Certain concerns, such as about intellectual disability, are heightened when a juvenile confession is involved.
The majority noted that many of these factors pointed in opposite directions in Dassey’s case. The most important they noted were his age and intellectual ability; the physical circumstances of the interrogation; the manner and actions of the police in questioning Dassey, including bluffing about what they knew and assuring him of the value of honesty; Dassey’s resistance or receptiveness to suggestions by the interrogators; and the extent to which he provided the most incriminating information in response to open-ended, non-leading questions.
Dassey was interviewed by the police on a number of occasions. The confession was elicited during the third interview on March 1, 2016. The officers received permission from Dassey’s mother to speak with him, although she was not present for the interview. They picked him up from school, offered him Miranda warnings and confirmed on multiple occasions that he was willing to talk to them.
The interview itself took place in what is described as a “soft” interview room. Dassey was seated on a couch, facing two officers in chairs. He was repeatedly offered food, drinks, restroom breaks, and opportunities to rest. According to the majority, Dassey was never threatened by the officers; they did not attempt to physically intimidate him, or even raise their voices. Dassey never refused to answer questions, never asked for an attorney or his mother, and never tried to stop the interview.
The March 1 interview was a total of three hours, with a break after each hour. The Court reviewed each hour individually.
During the first hour, the police stressed to Dassey the importance of being honest. They told him that if he was honest, they would stand behind him, even though they could not make any promises. At one point, they told him that only honesty would set him free, and that they knew pretty much all the facts already. During the first hour of the interview, Dassey admitted to seeing Teresa Halbach alive, naked and handcuffed to his uncle’s bed. He also stated that, at his uncle’s urging, he raped Teresa and finally that he helped his uncle subdue and kill her, then aided in moving her body to the garage.
His story changed quite a bit as the police probed the details of his confession, and the majority acknowledges that this portion of the interrogation provides the best evidence that Dassey’s confession was both involuntary and unreliable. In fact, Dassey did not admit to shooting Teresa until the police fed him the information she had been shot.
The police then took a break, during which time Dassey was allowed to rest and use the restroom. During the break, Dassey asked if he would be returning to school before sixth period, because he had a project due, indicating he did not quite understand the gravity of his situation.
In the second hour of the interrogation, police attempted to confirm details from the first, with what the court described as limited success. However, the majority determined that, in the main, Dassey largely confirmed his account from the first hour, especially the details of the sexual assault. He also resisted several suggestions by the police that he and his uncle used wires and cables in the garage to torture Teresa, which the majority believed was evidence that his will was not overborne. Furthermore, the police tested Dassey’s suggestibility, telling him falsely that Teresa had a tattoo on her stomach and asking if he had seen it. Dassey refused to state that he saw a tattoo.
The investigators then took another break, at which time Dassey had a sandwich and briefly fell asleep. The police then discussed with Dassey the consequences of what he was facing. At this point, Dassey’s mother came into the room. Dassey told her that he didn’t really do anything to Teresa Halbach and that the police got into his head.
At trial, Dassey denied any knowledge of, or involvement in, the rape and murder of Theresa Halbach. Experts testified that Dassey was highly suggestible and suggested he confused his own experiences with a book he had read years earlier called “Kiss the Girls,” which later became a movie. The majority states in a footnote that no scenes in either the book or movie are remotely similar to the crimes Dassey described in his confession. Nor did he mention the book to his counsel in the six months following the confession.
The majority then turned to the State courts’ treatment of the confession. It noted that the trial court found the confession voluntary, noting that investigators used a normal speaking tone with no raised voices, hectoring or threats of any kind. The video did not show Dassey was upset, agitated, frightened or intimidated by the questioning and displayed no difficulty in understanding the questions asked. He also never asked to stop the interview or request that his mother or a lawyer be present. Thus, the trial court judge found the admissions to be voluntary statements and denied a motion to suppress.
A three-judge panel of the Wisconsin Court of Appeals affirmed the convictions and found the confession to be voluntary. They relied on a clearly erroneous standard of review, and determined the trial judge did not make a clear error in allowing the confession in. The Court of Appeals also concluded Dassey did not demonstrate coercion – because the detectives’ statements merely encouraged honesty and did not promise leniency, telling a defendant that cooperating would be beneficial is not coercive. The truth of the confession was a matter for the jury, which clearly believed it.
Dassey then filed a habeas petition. The District Court granted the petition, finding that false promises of leniency were made to Dassey. A divided panel affirmed and the state requested en banc review.
The majority applied the AEDPA standard and concluded that the state court decision that Dassey’s confession was voluntary was not an unreasonable application of Supreme Court precedent. While there were factors pointing in opposite directions, the totality-of-the-circumstances test gives courts considerable room for judgment in those cases. Under AEDPA, a federal court is required to give deference to the state court’s findings in such a case.
Dassey argued that the Wisconsin Court of Appeals decision was too terse, dealing with the confession in just two short paragraphs. The majority noted that the Supreme Court itself has issued terse opinions regarding the voluntariness of a confession after reciting the relevant facts. It has also ruled on voluntariness by simply adopting the reasoning of lower courts. AEDPA, the majority noted, does not authorize federal courts to impose mandatory opinion-writing standards for state courts. In fact, under AEDPA, state court decisions receive significant deference even if they provide no reasons at all.
The majority also found that the state courts exercised the appropriate special care required when examining confessions by juveniles. It found that the state courts assessed coercion in relation to Dassey’s vulnerabilities and found the confession voluntary.
As to precedent, Dassey had failed to point to any Supreme Court cases that would require relief in these circumstances. As a result, the majority could not find that the Wisconsin courts applied the law unreasonably in finding Dassey’s confession was voluntary.
It then made a short examination of whether the state courts made an unreasonable finding of fact – namely that the police made no false promises of leniency. Dassey argued that the state court erred when it found that the statements by police merely encouraged honesty. He rested his claims on two points: 1) his intellectual limitations; and 2) the places where the police implied that he would not even be arrested if he told the truth. The majority rejected both arguments.
The state trial court looked at statements that the police could not make any promises, which supports the state, and the assurance that honesty was the only thing that would set Dassey free, which supports Dassey’s claim, particularly in light of his limited intellect. But the majority found nothing unreasonable with the state court’s ultimate conclusion. The Supreme Court has not held general assurances of leniency in exchange for cooperation to be coercive. Only false promises of freedom reach that threshold. Here, the majority did not think it unreasonable to find that the police made no legally relevant false promises to Dassey.
While the dissenters and the district court judge may view the police’s tactics differently, this difference of opinion did not make the state courts’ view unreasonable.
Moreover, while the factual inconsistencies may weigh in as to the reliability of the confession that can reasonably be viewed as a separate inquiry from the voluntariness of the confession.
Finally, while there has been some debate over the interrogation techniques used on Dassey, some of them, such as repeated challenges to explain details that seem implausible, are advocated for by reformers. Most important, to the majority however, is the fact that these debates have not resulted in Supreme Court precedent condemning the techniques used on Dassey. Under AEDPA, Supreme Court precedent is all that matters. Thus, Dassey’s claims failed.
The dissent, led by Chief Judge Diane Wood, believed the confession was involuntary, and pulled no punches in saying so. It described the interrogation as consisting of “psychological coercion, questions to which the police furnished the answers, and ghoulish games of ’20 Questions,’ in which Brendon Dassey guessed over and over again before he landed on the ‘correct’ story (i.e., the one the police wanted).” The dissent believed that this confession was just the sort of extreme malfunction habeas was designed to remedy. Dassey was a 16 year old with an IQ in the low 80s. Even overlooking the coercion, the dissent believed that the confession was so riddled with input from the police that its use violates due process.
Like the majority, the dissent focused on the special care required when evaluating a juvenile confession. However, they failed to find any evidence that the state courts had taken such special care. The state’s attorney could not point to anything in the record that indicated the courts had followed this clear command, even when directly asked. They also believed that the evidence showed Dassey was highly suggestible, responding to the police’s prompts with the answers they were looking for. The dissent took particular exception to the type of interrogation techniques used by the police, known as the Reid technique, a highly criticized method which has been shown to illicit false confessions.
Based on the use of these techniques, the dissent had no problem finding the confession to be coerced.
The dissent takes particular issue with the majority’s reliance on the accuracy of the confession. Even if the details Dassey provided were correct, that says nothing about whether the confession was coerced. Coercion and reliability are two different things – a confession can be coerced but reliable, or voluntary but unreliable. But even more so, the dissent does not believe that the facts provided by Dassey were reliable, providing a chart running over several pages showing how certain statements were not critical and demonstrating how they were coerced.
Based on this, the dissent believed there were three principles, clearly established by the Supreme Court that the Wisconsin Court of Appeals failed to apply: 1) special care for juvenile confessions; 2) consideration of the totality of the circumstances, and, most importantly, 3) prohibition of psychologically coercive tactics.
Aside from this, the dissent also believed that there existed a second, independent reason, to grant habeas relief here – the Wisconsin courts made unreasonable factual determinations. Specifically, the dissent argues, the police made a false promise of leniency, which renders the confession coerced. According to the dissent, Dassey was guessing at what he thought the investigators wanted to hear, because he believed it would allow him to go free. This was demonstrated by his question about whether he’d be back at school that afternoon to turn in a project. He also expressed the belief he’d only be in jail for one day. Given this, the dissent argued that he took things very literally, and so the police’s statement that honesty would set him free amounted to a promise of leniency, if the police believed he was telling them the truth. Finding otherwise was a factual error.
Judge Rover also filed a dissent, joined by her two colleagues. Her dissent focused on the question of coercion and false confessions. She argues that the raft of exonerations based on DNA evidence, even in cases where the suspects confessed, undermines the human intuition that innocent people do not confess to crimes they did not commit. She noted that not only do the innocent falsely confess, they do so with “shocking regularity.” She pointed to data from the National Registry of Exonerations, which has collected data on 1810 exonerations between 1989 and June 2016. It includes 227 cases involving false confessions. In homicide cases specifically, the number is approximately 25%. She points to specific instances, such as a man who falsely confessed to murdering his own child, which human intuition would find abhorrent.
Factors which make a false confession more likely include youth, mental illness, cognitive disability, suggestibility, and a desire to please others, many of which were demonstrated by Dassey. For exonerees younger than 18 at the time of the crime, 42% of exonerated defendants confessed to crimes they had not committed. The mentally ill or mentally disabled were even more likely to falsely confess, to the tune of 75%. Judge Rovner pointed out that juveniles and the mentally disabled, or both, accounted for just one sixth of all exonerees, but accounted for 59% of false confessions. In fact, youth and intellectual disability are the two most commonly cited characteristics of suspects who falsely confess.
Based on these statistics, Judge Rover, joined by her dissenting colleagues, believe it is time to re-evaluate the ability of police to lie to suspects.
Another tactic known to increase the false confession rate was used here – minimization. This is the practice of telling a suspect that the magnitude of the charges and the seriousness of the offense will be downplayed or lessened if the suspect confesses. Studies have shown that minimization causes suspects to infer leniency to the same extent as if they were made an explicit promise.
Here, Dassey was subjected to what Judge Rovner calls a “perfect storm” of factors that have been shown to lead to a false confession. Based on what we know now, she argues, no reasonable court could possibly have concluded that Dassey’s confession was voluntary. Thus, she would vote to grant habeas.
I believe the dissent has the better argument here. Particularly in light of the statistics provided by Judge Rovner in her powerful dissent, I believe there is significant evidence that Dassey’s confession was coerced by the police. True, they didn’t hurt him, threaten him, or even yell at him. But the courts have long held that psychological coercion is just as unacceptable under the Fifth Amendment as physical coercion. Given his status as an intellectually challenged juvenile, the courts were required to take special care in evaluating the totality of the circumstances, including whether the police made a promise of leniency. Given their repeated urgings that he had to be honest, and that telling the truth was the only way to go free, coupled with the investigators spoon-feeding Dassey many of the facts, it appears to me that his confession was not voluntarily given.
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