By Jim Hagerty
CHICAGO — The confession “Making a Murderer” subject Brendan Dassey gave to police in 2006 was voluntary and can be used against him, a seven-judge panel in the Seventh Circuit Court of Appeals ruled in a decision filed Friday, Dec. 8.
That means Dassey, now 28, must spend the next 31 years in prison before he’s first eligible for parole. He was sentenced to life in 2007 in the death of 25-year-old photographer Teresa Halbach.
“Brendan Dassey confessed on videotape to participating in the 2005 rape and murder of Teresa Halbach and the mutilation of her corpse,” Judge David Hamilton wrote. “Dassey spoke with the interrogators freely, after receiving and understanding Miranda warnings, and with his mother’s consent. The interrogation took place in a comfortable setting, without any physical coercion or intimidation, without even raised voices, and over a relatively brief time. Dassey provided many of the most damning details himself in response to open‐ended questions.”
The interrogators, Wisconsin investigators Mark Wiegert Tom Fassbender, have long been accused of violating Dassey’s civil rights. They coerced the cognitively delayed 16-year-old into repeating information about Halbach’s murder they planted in his mind, Dassey’s lawyers argued. A federal magistrate agreed with that claim last year and vacated his conviction. The State of Wisconsin, at the direction of Attorney General Brad Schimel, filed an appeal to that ruling in the Seventh Circuit.
A three-judge panel in the Seventh Circuit upheld the magistrate’s ruling earlier this year and the AG appealed again, asking the court to hear the case en banc. Seven judges heard those arguments in September.
Dassey’s lawyers, Steven Drizin and Laura Nirider with the Center on Wrongful Convictions of Youth, are now left with the sole option of taking the case to the United States Supreme Court. The odds of the court taking the case are slim, however. The court receives about 7,000 cases a year and only hears between 100 and 150.
As expected, part of Friday’s decision came down to whether Nirider’s argument met the standards set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The act stipulates in the U.S. Code that the case would have to be in violation of clearly established Supreme Court law and that the confession so blatantly coercive that no reasonable judge would admit it into evidence.
It wasn’t, the court ruled.
“Federal habeas relief from state convictions is rare. It is reserved for those relatively uncommon cases in which state courts veer well outside the channels of reasonable decision‐making about federal constitutional claims,” the decision states.
The court did recognize that Wiegert and Fassbender bluffed Dassey during questioning, about their superior knowledge of the crime and by using various control questions. As a result, Hamilton wrote, Dassey resisted to questions that indicated he was lying to investigators before voluntarily detailing his involvement in Halbach’s murder.
The court further ruled that police did not make Dassey false promises of leniency whey used the idiom, “The truth shall set you free,” and told him he was “OK.”
Dassey’s lawyers released a statement Friday night, saying they will begin planning their appeal to the United States Supreme Court.
“We are profoundly disappointed by the decision of four judges of the United States Court of Appeals for the Seventh Circuit to reverse two prior decisions and deny relief to Brendan Dassey,” the statement reads. “Like many around the globe, we share the view of the three judges who wrote, in dissent, that today’s ruling represents a ‘profound miscarriage of justice.’ We intend to continue pursuing relief for Brendan, including through a petition for certiorari to the United States Supreme Court.
“Today’s ruling contravenes a fundamental and time-honored position of the United States Supreme Court: interrogation tactics that may not be coercive when applied to adults are coercive when applied to children and the mentally impaired. Indeed, when such tactics are applied to vulnerable populations, the risk of false confession grows intolerably. Unfortunately, this time-worn lesson was ignored today by four judges in the case of Brendan Dassey. We at the Center on Wrongful Convictions of Youth are committed to continuing to fight on behalf of Brendan and others like him to prevent future miscarriages of justice.”
Kathleen Zellner, who’s representing Steve Avery, took to Twitter in response to Friday’s filing, tweeting, “No one promised this was going to be easy.
Zellner has recently filed an appeal in the Wisconsin Court of Appeals after a Wisconsin trial judge denied Avery an evidentiary hearing. If she’s grant the hearing, the case will be sent back to Manitowoc County, where Zellner will argue new findings she says prove that Avery did not kill Teresa Halbach and that officials planted and withheld evidence.
Dassey was convicted in 2007 first-degree murder, second-degree sexual assault and mutilating a corpse. He will be 59 when he’s first eligible for early release. Sexual assault charges against Steven Avery were dismissed. He was found guilty of first-degree murder, not guilty on the charge of mutilating a corpse, and guilty of possession of a firearm as a felon. He is not eligible for parole. R.
This story has been updated.