‘MaM’: SCOTUS delivers final blow in Brendan Dassey appeal
By Jim Hagerty
WASHINGTON, D.C. – The United States Supreme Court delivered what is likely the final blow to “Making a Murderer” subject Brendan Dassey’s bid for freedom Monday by refusing to hear his case.
Dassey, now 28, was 16 when he was interrogated by Wisconsin investigators and confessed to his role in the murder of 25-year-old photographer Teresa Halbach on Halloween 2005. He and uncle Steven Avery were convicted of first-degree murder and sentenced to life behind bars in the case, Avery without the possibility of parole. Dassey is eligible for early release in 2048.
Noted post-conviction lawyers Steven Drizin and Laura Nirider of Northwestern University have represented Dassey since his 2007 conviction. They’ve longed claimed investigators Mark Wiegert and Tom Fassbender failed to use special care when they questioned a cognitively deficient Dassey, who was taking special education classes and barely passing the 10th grade at Mishicot High School. A federal magistrate agreed in August 2016 and vacated the conviction in what proved to be one of the case’s most dramatic turn of events.
With Dassey just days from being released, the State of Wisconsin filed a motion to keep him in prison while Attorney General Brad Schimel appealed to the United States Court of Appeals Seventh Circuit.
Things were looking up for Dassey again in early 2017, when a three-judge panel in the Seventh Circuit upheld the 2016 ruling. Schimel didn’t relent, however, asking the court to hear the case en banc, a hearing that went in favor of the state.
The United States Supreme Court is not bound to give a reason for Monday’s decision. The announcement came four days after the June 21 conference to decide which cases justices will hear in upcoming sessions. The court receives about 7,000 cases a year and only hears between 100 and 150.
“We will continue to fight to free Brendan Dassey,” Nirider said in a statement. “Brendan was a sixteen-year-old with intellectual and social disabilities when he confessed to a crime he did not commit.”
Nirider did not offer details of what her team has planned. According to Wisconsin law, she could file another appeal in Manitowoc County and start the process all over again but must present new claims based on new evidence–claims not argued in the first post-conviction case. That means because Dassey’s conviction was based largely on his confession, new evidence may be difficult to find.
The Seventh Circuit and SCOTUS decisions relied heavily on whether the confession violated 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. The Seventh Circuit, therefore, decided that while Fassbender and Wiegert may have bluffed Dassey, he gave a voluntary confession about his role in Halbach’s rape, murder, and mutilation.
“The confession given by Dassey was voluntarily given, not the product of police coercion or other improper interrogation techniques,” former Calumet County Ken Kratz said.
Kratz has been a staunch critic of the Neflix hit, claiming filmmakers used deceptive editing to create the narrative that Avery and Dassey were framed by law enforcement.
“It’s been difficult to watch as the producers of the docuseries ‘Making a Murderer’ misrepresented the facts surrounding both the Steven Avery and Brendan Dassey murder investigation and prosecution since the show’s release in December 2015,” he continued.
Kratz also said Dassey wasn’t the main perpetrator in the Halbach case, and had he accepted a plea agreement, he’d already have served the bulk of his sentence.
“(The) plea agreement, which promised to recommend as little as 15 years of initial confinement for Brendan Dassey, recognized his limited role in the Teresa Halbach rape and murder,” Kratz said. “Ironically, it was his much-criticized first attorney, Len Kachinsky, who seemed to be looking out for his then 16-year-old client’s best interest when he negotiated that plea deal.
“Dassey’s own family seemed to play a major role in rejecting the plea offer, and since that time he’s been told to go to trial on a first-degree homicide charge, and to thereafter allow his case to be used by juvenile justice activists to push their reform agenda. I have a great deal of sympathy today for Brendan Dassey. His uncle, Steven Avery, made him a murderer–his family and attorneys provided the worst possible advice, ensuring that he will now spend nearly the rest of his life in prison.
“Knowing he could have been walking out of prison in as little as three years from today, had he followed Attorney Kachinsky’s original recommendation, I wonder if his ‘advisors,’ so willing to criticize law enforcement for obtaining his confession, will turn the lens of scrutiny on themselves, and apologize to Brendan for mishandling his case at almost every turn.”
Schimel also released a statement Monday.
“We hope the family and friends of Ms. Halbach can find comfort in knowing this ordeal has finally come to a close,” the attorney general said.
Meanwhile, Steven Avery’s case continues to toggle back-and-forth between the Wisconsin Court of Appeals and the circuit court in Manitowoc County. Kathleen Zellner, has filed two recent motions, one to allow a CD related to a search for pornography on a computer she says was used by Bobby Dassey; and one asking for another circuit judge. Both motions are pending.
Zellner became a hero among Avery and Dassey supporters last June when she filed a 1,200-page motion for a new trial, alluding to Halbach’s on-again-off-again boyfriend as a possible killer. That motion was denied in its entirety by Sheboygan County Circuit Judge Angela Sutkiewicz on Oct. 2.
Although former Avery lawyer Jerome Buting called the court’s decision to deny Dassey a writ of certiorari disappointing, he said things could still bode well.
“Newly discovered evidence & Brady violations in SA case will apply to him. Truth will prevail,” he tweeted.
A long-awaited second season of “Making a Murderer” has not been announced. R.