Brendan Dassey v. Michael Dittmann

297 won for lack standing dant has dismissal modify missed merits. We the judg- jurisdictional ground, or other modi ment to a some dismissal on the merits for fying judgment to dismissal on failure state a upon claim which relief expand modified, granted, merits would the defendant’s can the judg- rights rights or limit the under ment is plaintiffs (by foreclosing judgment another law AFFIRMED. suit). ordinarily requires cross-ap This a See,

peal. e.g., Remijas Neiman v. Marcus LLC, (7th 688,

Grp., 794 F.3d Cir.

2015), citing Jennings Stephens, v. -, -,

U.S. (2015) (without cross-appeal, may urge not

appellee theory that would rights its or enlarge appellant’s lessen DASSEY, Petitioner-Appellee, Brendan rights). v. general apply, rule does howev- DITTMANN, Respondent- Michael A. er, jurisdictional where dismissal effec- Appellant. relief tively bars on the merits in cases, judicial modifying forum. In such No. 16-3397 jurisdiction from to merits dismissal Appeals, United States Court of practical makes no difference. It does Seventh Circuit. expand rights the defendant’s and does not require cross-appeal. took that ap- We Argued September Tillerson, proach in Hazama v. 851 F.3d Decided December (7th 2017) (modifying judg- Cir. dismissing petition

ment and for manda- merits),

mus claims the APA on under Tillerson, v. F.3d Morfin 2017) judgment (modifying dismissing claims under the APA on

merits). Modifying judgment in this approach

case consistent with our practical

Hazama and and with the Morfin Jennings

effects of United States Co., Ry. Express

American (1924), 68 L.Ed. 1087 attempts

which prohibited “supplement respect to matter not decree raising “any

dealt with” but mat- allowed record, appearing although

ter in the [the]

argument may attack upon involve an

reasoning of the lower court an insis- upon ignored matter overlooked or

tence

by it.” case should not have been dismissed standing

for lack of but must be dis-

' Nirider, Attorney, A. Laura Steven Drizin, University Northwestern School IL, Law, Dvorak, Chicago, At- Robert J. S.C., Milwaukee, & torney, Hailing Cayo, WI, Petitioner-Appellee. for General, Berg, Deputy Luke N. Solicitor Lennington, Attorney, P. Jacob J. Daniel Wittwer, Attorney, Attorney Office of the General, Justice, Department of Wisconsin Madison, WI, Tseytlin, Attorney, Misha Walsh, Attorney, Ryan J. Kevin Michael LeRoy, Attorney, Office of the Solicitor General, Justice, Department of Wisconsin WI, Madison, Respondent-Appellant. for Levick, Attorney, L. Marsha Juvenile Center, PA, Philadelphia, for Law Amicus Curiaes. WOOD, Judge,

Before Chief and EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, HAMILTON, Judges.* Circuit HAMILTON, Judge. Circuit Petitioner confessed Brendan videotape participating rape in the 2005 murder of Teresa Halbach corpse. of her The mutilation Wisconsin upheld state courts convictions Dasse/s * Judges par- Circuit this case. Flaum Barrett did ticipate in the consideration or decision crimes, finding corpus. that his confes- habeas en granted for these We banc review voluntary could be application sion was used to consider the the deferen- (cid:127) 2254(d) § in this against him. issue tial principal standards 28 U.S.C. corpus that find- appeal implications panel habeas whether decision applica- on an interrogations was based unreasonable juvenile suspects. of- or an precedent tion of finding Dassey’s- state courts’ confes- See 28 voluntary unreasonable view the facts. sion not beyond fair 2254(d). debate, § U.S.C. but we conclude was reasonable. grant Dassey’s petition We reverse the volun Whether confession was for a corpus. writ habeas against tary general or not is measured ' into I provides appli- standard that takes account the totali Part overview’of an v. ty circumstances. See cable law.-Part II-sets forth the Withrow relevant- 680, 693-94, 113 Williams, murder, U.S. facts about Teresa Halbach’s Das- (1993); Gallegos confession, v. sey’s 123 L.Ed.2d the court proceed- Colorado, Part III ings. applies 370 U.S. 82 S.Ct. the law to the rele- (1962); facts, keeping see Fare Michaelvant mind the L.Ed.2d also deference 2254(d)' , § give we must C. under state (1979) ju court decision’s to which (admissibility reasonable differ, confession). might judges venile Some factors would Dassey’s support finding a that tend I. Law Applicable The voluntary: youth, was not

confession sug ability, his limited intellectual some first discuss our of We standard review gestions interrogators, the their broad by. the and under Antiterrorism Effective to a suspect vulnerable assurances .that (AEDPA) Penalty of 1996 Death Act leniency, honesty produce would and in Supreme clearly then Court’s describe the Many Dassey’s confession. consistencies confession, par- law for when a established ‘ factors, however, point toward other a by sixteen-year- a ticularly confession a Dassey finding voluntary. spoke that it was Dassey, voluntary old is deemed like freely, interrogators receiv with the after admissible. warnings, Miranda understanding AEDPA The interro A. Under

and with his mother’s consent. Deference gation place setting, took in comfortable a corpus peti considering In habeas or intimi any physical without coercion convictions, challenging tions state court dation, voices, without even raised (and governed greatly “our reviéw is limit relatively Dassey provid over a brief time. ed) Hepp, by” Hicks v. 871 F.3d AEDPA. damning him many the most details ed (citation omitted). 513, 2017) 524 open-ended response questions. self 2254(d) § 28 U.S.C. were standards he resisted On a number occasions habeas ‘retri “prevent federal designed par on interrogators’ strong suggestions convic als’ to ensure state-court Also, investigators ticular details. made given possible tions effect to the extent are leniency. no specific promises Cone, Id., Bell v. 535 quoting under law.” 685, 693, 152

After the state courts 122 S.Ct. L.Ed.2d found confes- U.S. (2002). 2254(d) provides a voluntary, a 914 sion federal district court Section cannot be over panel a court found state court conviction divided this adjudication the state courts’ state courts’ decision was. turned unless unreasonable on a writ of of a claim the merits: and that was entitled federal 302 States,

(1) preme Court- which in a that was con- United .resulted decision to, an courts to trary or involved unreasonable has federal instructed lower of, clearly established application uphold Feder- state conviction unless court law, Supreme “cannot, al as in determined record reasonable under States; United Court controlling terpretation the [Court’s] le resulted, (2). standard, ruling.” gal support in a a certain decision Quarterman, v. Panetti 551 U.S. an determination unreasonable based n light (2007). the evidence facts of. L.Ed.2d proceeding. in the court presented State approach we were to consider Even Supreme past decisions outmod federal courts look to decision ed, suggest, state court’s the dissents “last reasoned state-court decision” is:the decision with the consistent case, merits even if the decide approach Court’s could be unreason court then state’s denied supreme, discre able AEDPA. under Williams, Johnson v. tionary review. n.1, U.S. S.Ct. result, As relief federal habeas case, In look we It from convictions is rare. re state Court of Appeals decision

the Wisconsin for' relatively uncommon served those voluntary.1 cases in out which state courts veer well legal The standard for errors un side the channels of reasonable decision- 2254(d)(1) § was meant to be der difficult making about federal constitutional claims. Richter, Harrington v. satisfy. conclusive, AEDPA deference is not how 178 L.Ed.2d ever. the record shows that state Where (2011). The is not whether federal- issue clearly strayed courts have from estab court judges agree with state decision law, grant federal can do we lished state, decision, or even whether court Griffin, E.g., Richardson relief. correct. The is deci issue whether the 836 (7th v. 2017); Jones Callo Cir. F.3d under, unreasonably wrong an sion was (7th 2016); way, 842 Mc 454 Cir. F.3d Taylor, v. objective standard. Williams Neal, (7th v. Manus 779 F.3d 634 Cir. 1495, 362, 410-11, 120 529 U.S. S.Ct. 146 (7th Wilson, 2015); Shaw v. 721 F.3d 908 (2000) (majority opinion 389 L.Ed.2d 2013); Thompson, Harris v. Cir. 698 F.3d J.). O’Connor, ask way, Put another we (7th Basinger, 2012); Jones v. 609 635 Cir. whether, “was so the state court decision 2011). F.3d 1030 an lacking justification in that there was court Review of state factual understood comprehended well error findings similarly AEDPA is beyond possibility for under defer in existing, any law ential, Richter, 2254(d)(2), § 562 courts disagreement.” Under fairminded federal 103, 131 existing cannot declare factual law deter U.S. “state-court at S.Ct. 770. .., merely minations unreasonable be- applies that is limited to the Su that 30, 2017, J., (Ginsburg, concurring On in denial certio- October Sellers, rari), argument in Wilson v. No. 16- Court holds Wilson in héard If federal 6855, question one is federal where whether reviewing supreme courts a state court'sum in habeas cases continue to should courts mary give the denial of review should state summary through” supreme “look state court merits courts benefit rationale decisions on the merits to court the last state support, our review be record could would an See provided explanation. decision deferential, come even more so the outcoine — Chatman, U.S. —, generally Hittson v. change, here would not 2126, (2015) 2127, 192 135 L.Ed.2d 887 S.Ct.

303 consciousness”); edge ed man cause would have reached different [we] conclusion in the instance.” Brown v. Mississippi, first Brum 297 U.S. — 461, (1936) (confes Cain, —, 56 80 682 135 L.Ed. v. S.Ct. S.Ct. U.S. field L.Ed,2d 2269, (2015) (inter by “brutality sions 2277, 356 extracted 192 and vio lence”). omitted). AEDPA not quotation citation does “require nal marks and state nearly federal courts to permit wait some AEDPA does federal courts pattern legal identical factual before a rule “supersede ... the trial court’s determina be applied”, general must only tion” if because “even a a review the record shows may applied in “[rjeasonable standard an unreason might ... minds dis Id, Panetti, 953, able manner.” 551 U.S. at agree finding question.” about 2842, Musladin, quoting Carey (internal omitted). 127 S.Ct. v. and citations quotations 81, 127 70, 649, 166 U.S. S.Ct. L.Ed.2d imply But again, “deference does (2006) (Kennedy, J., concurring in the judicial or abdication of re abandonment ; accord, judgment) Yarborough v. Alvara view, preclude does not definition do, Id, 652, 663-64, 2140, 541 U.S. S.Ct. (internal quotations relief.” and cita L.Ed.2d omitted). tions Nevertheless, applying gen B. The Law of Confessions eral like standard voluntariness de “can Clause of the Due Process mand a judgment,” substantial element forbids the admis Fourteenth Amendment and determining judgment whether involuntary sion of an evi “requires reasonable rule’s considering the prosecution. in a criminal v. dence Miller Alvarado, specificity.” 664, 541 U.S. Fenton, 474 U.S. 106 S.Ct. rule, 2140. “The general more (1985).In deciding 88 L.Ed.2d whether leeway reaching more courts out voluntary, a confession was courts assess in case-by-case comes determinations.” Id. surrounding all totality “the circum (upholding court Miranda state conclusion the- characteristics of ac stances—both pointed ..opposite where factors di interrogation.” rections). cused and details The state courts had such leeway Bustamante, Schneckloth v. U.S. end, here, leeway is deci (1973); 2254(d)(1). 93 S.Ct. § apply as we sive test Williams, see also Withrow general This standard has some 680, 693-94, 123 L.Ed.2d specific requirements guide courts. factors). (1993) (collecting relevant The 407 First, person arguing his confession was is to purpose this test determine wheth involuntary en must show inwas over er “the defendant’s will fact gaged practices. in coercive See Colorado Miller, 116, at 106 borne.” 474 U.S. S.Ct. 157, 164-65, Connelly, v. 107 479 U.S. (1986). 515, 93 Physical S.Ct. L.Ed.2d 473 Supreme many con ly interrogation Court’s cases abusive tactics would York, voluntariness v. New applying per test have not coercion se. Stein stitute 1077, comprehensive 156, 182, the doctrine into a 346 U.S. 97 distilled 73 S.Ct. L.Ed. rules, (1953) though prohibitions .(physical per set of hard on 1522 se is violence coercion), grounds physical Mincey by coercion are absolute. See on other overruled 385, 401, 381, Arizona, Denno, 368, v. v. U.S. 98 S.Ct. Jackson 378 U.S. 437 84 (1978) Brown, 2408, (statements 1774, (1964); 12 L.Ed.2d 290 908 57 S.Ct. L.Ed.2d 286-87, (coercion “virtually 56 461 ques from 297 at resulted U.S. S.Ct. continuous Jenkins, brutality); v. tioning seriously painfully United States wound- 304 1991) 934, (physical by sions Induced Broken Government Cir.

938 F.2d 938 Promises, 947, se); 953 43 Duke L.J. per Miller v. Fen abuse coercion (3d 1986) ton, 598, 604 796 F.2d may promises False be evi (same). involuntariness, at least dence when paired practices more or es with coercive Interrogation tactics short pecially part as vulnerable defendants amount to coercion. The physical force can E.g., of the totality circumstances. designed to Court has tactics condemned Illinois, 528, 534, Lynumn v. 83 372 U.S. suspects mentally. physically and exhaust 917, (1963) (pre-Mi 9 922 S.Ct. L.Ed.2d long interrogation ses tactics include Such involuntary randa confession found based prolonged paired detention with sions leniency promise indigent on false relatively questioning. but short repeated children, young mother with combined 737, Carolina, v. North 384 U.S. Davis remove her children and threats (1966) 752, 1761, 86 16 S.Ct. L.Ed.2d 895 I benefits, along terminate Welfare with oth (finding practice repeated coercive factors). Supreme er But the Court allows interrogations days over sixteen while the police interrogators suspect tell a incommunicado). suspect being held cooperative be to his “a attitude” would 707, C., benefit. Fare v. 442 Michael U.S. has not Court found 727, (1979) 2560, 99 61 S.Ct. L.Ed.2d 197 involving physical or police tactics not (reversing in finding that confession was exhaustion taken alone suffi mental were voluntary). Supreme precedents do cient to show In several involuntariness. bright subject. cases, draw lines may the Court has held that officers suspects through appeals a sus deceive voluntariness, In assessing courts conscience, pect’s by posing as a false weigh setting tactics must friend, trickery other means interrogation alongside any vul particular See, e.g., Atchley, 400 bluff. Procunier Bustamonte, suspect. nerabilities of the 446, 453-54, 91 27 U.S. S.Ct. L.Ed.2d 412 U.S. at 93 S.Ct. 2041. Relevant (1971) into con (suspect 524 was deceived age, suspect’s factors include the intelli fessing to false friend to obtain insurance education, gence, as famil as well payout stepchildren); Fra children and iarity justice system. with the criminal 731, 739, Cupp, zier v. 89 394 U.S. S.Ct. Withrow, 693-94, at 113 507 U.S. S.Ct. (1969) (deceiving 22 L.Ed.2d 684 sus factors); C., (collecting Michael confession). pect suspect’s about another 725-26, (significant at 99 S.Ct. U.S. promises suspect similarly False justice criminal experience); Clewis v. coercion, not been se per seen least Texas, 707, 712, S.Ct. specific. are See Arizona v. quite (1967) (limited at L.Ed.2d educational Fulminante, U.S. tainment); Connecticut, Culombe v. (1991) (rejecting 113 L.Ed.2d 302 1860, 6 U.S. States, language Bram v. United (1961) (intellectual disability); 1037 Galle 532, (1897), 183, U.S. 18 42 L.Ed. 568 S.Ct. Colorado, 49, 53, gos v. 370 U.S. 82 S.Ct. stating that a could not be ob (1962) 1209, (age). 8 L.Ed.2d 325 or by “any implied promises,” tained direct 183, 542-43, finding id. at but The interaction between the 18 S.Ct. suspect suspect’s police from tac promise protect threat vulnerabilities and in may signal tics coercion even the ab ened violence others rendered confes White, physical involuntary); sion sence coercion threats. The S. Welsh Confes

305 response Court has made it clear mation in to open-ended, non- leading questions. “special confessions call for juvenile care” evaluating E.g., Haley in voluntariness. v. Murder, 596, 599, II.

Ohio, 302, the Interrogation, 68 92 332 U.S. S.Ct. the Convictions (1948); L.Ed. 224 see also J.D.B. v. North Carolina, 261, 277, 131 2394, 564 U.S. S.Ct. A. The Murder Teresa Halbach (2011); Gault, 180 L.Ed.2d In re 310 387 mind, the applicable With in turn law we 1428, U.S. 87 S.Ct. 18 L.Ed.2d 527 horrifying to the murder of Teresa Hal- (1967); 54, Gallegos, 370 U.S. at 82 S.Ct. bach and then the circumstances of Das- cases, juvenile In particu law is sey’s confession. More detailed accounts larly friendly concerned with whether a court, are panel, available district present adult for or consents to the opinions. and state court Dassey See v. Gault, interrogation. In re at 55- U.S. Dittmann, 2017); 860 F.3d 933 56, 1428; Gallegos, 87 S.Ct. Dittmann, Dassey v. F.Supp.3d 53-54, 1209; Haley, 332 U.S. at (E.D. 2016); Wis. State v. Dassey, 346 600, physical 302. Concerns about Wis. 2d 827 N.W.2d 2013 WL exhaustion, friendly police naiveté about (Wis. 2013) curiam) (un App. (per of an the context adversarial inter police published disposition); see also State view, disability intellectual also take Avery, Wis. 2d N.W.2d on for heightened importance assessing 2011) (App. (affirming convictions of Das- juvenile’s whether a will was overborne.2 uncle). sey’s below, Dassey’s As pres- we detail case In young Teresa Halbach was a pointing ents in opposite different factors photographer with her own business based important directions. Those most to our County, Calumet Wisconsin. On October analysis age his include: and intellectual appointment day her last atwas ability; physical circumstances the Avery’s Salvage Auto to photograph a van interrogation; the manner and actions of an advertisement. Halbach re- never questioning Dassey, including from appointment. days turned A few bluffing they what about knew and assur- search, during missing-person later her him of honesty; Dassey’s the value of salvage yard. car was found at the Her or receptiveness resistance to suggestions blood the car’s interior. A stained further by interrogators; and the extent to which search turned up Halbach’s charred re- provided incriminating he the most infor- mains in a burn pit property, along on the “sug- may good expe- 2. We have reservations about the use of recall of their own lived gestibility” analysis, as a factor in this at least poor riences but recall of facts relevant to heavily on these facts. relies Willner, capaci- their lives. Paul Assessment of Gudjonsson Suggestibility results Scale ty participate proceedings: in court selec- measuring susceptible test him more recommendations, critique tive and some people given fabrication than 95 out of Psychology, Crime & Law slight prodding by questioners. Gudjonsson A testimony This criticism mirrors own by reading story test is administered a short experi- recall was better for lived asking an then aloud to examinee and later event, In expert ences. the State’s force- leading questions about it. The more answers fully contested both the administration and change response pressure, to mild meaning Dassey’s Gudjonsson test at trial. suggestible more the examinee is. The admin- We cannot draw conclusions from these dis- people istration of this test for with intellectu- puted results. al disabilities has been criticized because casings shell on floor of least the aftermath of a terrible crime and with Steven (cid:127) he Avery’s garage. struggling with the horror of what 1st,, investigators On had March seen. Early Dassey’s B. Police Interviews (Mark Fassbender) ob- Wiegert .and Tom his, permission for tained mother’s another investigators spoke num- Police with a high his They Dassey from interview. took early,Novem- Avery’s ber of relatives department, to a ber, school local sheriffs hour-long' including an interview n questioned the pres- where was without sixteen-year-old nephew his Das- Brendan In friendly a adult. the car ence Dassey sey, by. said he who lived close had investigators gave Mi- Dassey standard taking pictures at the sal- seen Halbach right warnings his to remain randa about vage yard on the October afternoon silent, right his to an attorney, and suggestion that he resisted the she but had gave he could possibility statements Avery’s time, entered home. At that he against Dassey orally him. ac- be used provided other information. no useful knowledged he warnings, initialed later, though, investiga- Several months signed Miranda waiver a written and. Dassey tors had been word that received during form. He chatted officers uncontrollably crying had lost about the ride. took a short detour to The three proceeded weight. They forty pounds' to pah’ retrieve his home to a of three times him on interview total jeans, which were kept bleach-stained voluntary In February 2006. these they evidence. arrived sher- When interviews, clear witness became iffs department, Dassey confirmed that he Dassey much more about Teresa’s knew rights and still to understood wanted his (Dassey custody on murder. was not talk them. to signed .He and initialed a February 27th. waiver, place consent- The interview took in a Miranda mother so-called in.) ed, though equipped In in- “soft” room she not sit those interview video- did terviews, Dassey taping. Dassey on on a facing Octo- sat couch two admitted 31st, Avery’s had gone ber over to officers camera. next three he Over hours, food, p.m. Dassey repeatedly help around 9:00 offered trailer to drinks, breaks, police opportunities' bonfire. He told that he restroom had parts :body point of a At no in the seen human the fire. rest. interview did the investigators Dassey Avery He had threaten or his fami- also said that threatened they spoke police. ly.. attempt him if he to the him hurt Nor did intimidate When They physically. asked about a of bleach- did not even raise then- pair jeans investigator pre- stained had learned about from voices. Neither tried member, room, family leaving Dassey Dassey another vent nor admitted from helped up he Avery spill .they had cle'an usé sort force compel did garage Dassey floor him night. questions. late to. never But answer nothing questions, claimed had to do answer asked to. have refused never present, with Teresa’s death. to have counsel his mother stop never tried interview. G, The 1st Interview and March Con- Questioning 2. The First Horn fession n Circumstances Interview began by telling Dassey One officer how interviews, investigators help investigation, After those since “this he could thought Dassey from been a witness to at information and that information” had n “just previous gonna problems. a little it that’s be accounts needed OK. Does . Sensing Dassey tightening up.” “may that that fair? sound reasons,” back for have held whatever again Dassey question- Id. nodded and the Dassey officer “that and I assured Mark events of turned to the October 31st. corner, your your are in we’re on both hours, Over the course next three Acknowledging Dassey’s potential side.” investigators with several breaks as- the talking that to the he concern meant room, Dassey conferred told an outside that,” get “might arrested and stuff like disturbing incriminating even more and investigator urged Dassey to “tell the hour, story October In about the first 31st. truth, out.” anything don’t leave whole Dassey admitted that he a tele- received Talking Dassey’s "couldbe in best interest phone Avery, call from went over to you look though “might even make a hour, Avery’s,garage in the six o’clock you you bad or make look little like were already Teresa in her found car. Das- dead' be,” more involved than wanna be- you sey he helped then lower Tere- Avery said admitting to facts would cause unfortunate (used body a “creeper” sa’s onto to bound you’re telling leave “no the truth.” doubt automobile), an work underneath he which by saying investigator The first closed Avery body used take her outside seeing, if I filled” in “from what I’m even already-burning her onto the and throw Dassey’s story, “I’m some thinkin’ holes bonfire. OK, you’re right. you don’t all point, an At less than hour into the .,.

worry things about what know [W]e interview, story pivoted dramati- just ... need [Avery] Steven did we cally. Dassey story say revised story you.” hear the from other whole something first in the he amiss noticed investigator went next: Dassey four hour. volunteered ojclock thing is Honesty' here Brendan mail, l|ie getting the he when out heard OK, no gonna help you. matter that’s Avery’s screaming a trailer. woman inside did, through can that. you what we work Dassey Avery’s Supp. App, 50. knocked promises but OK. We can’t make mail, door, piece, ostensibly of. to deliver you no we’ll stand behind matter what door. sweaty Avery and a answered the you’re being the you,did. OK. Because alive, Dassey he then said saw Teresa talking good guy by you .... And here naked, Avery’s handcuffed to bed. us, it’s, you. helping it’s OK? Be- Avery’s he at invi- Dassey went inside said who’s person cause the honest the one him Avery tation had a soda while told gonna get every- out of better deal raped Dassey said he had Teresa. thing. that, Avery’s raped he then urging, Supp. App. Dassey having against 30. After nodded intercourse her will Teresq, bed, as she agreement, investigator continued: as she bound stop. him to After protested begged Honesty only thing You know. is the then rape, reported, he Right? you set And we that will free. Avery for a television with while. watched know, know, Tom we re- like said we Supp, App. 55-65. much tapes pretty viewed those .... We why everything Dassey’s telling, helped know we’re .... he next' that’s In talking you again today. really Avery move We subdue and kill Teresa 'and tq In you Id. at re- garage. to be time with 66-76. need honest her OK..,. prodding, Das- everything, long you sponse questioning [A]s OK, us, story confusing these you lie told about sey honest with it’s If about events, you it? Dassey Avery said that Fassbender: Now remember critical knife, (Brendan “yes”) Tell about large a that her nods us stabbed Teresa with removed, and that she was that then. handcuffs were Avery up rope. with He also said tied Dassey to do so Supp. App. 76. continued large of her hair cut off with some over whole of the March 1st the course knife, (Dassey) that he cut her throat with interview, revising upwards the number .knife; point that at some same the times Teresa was shot from twice to three punched or her. All Avery choked these times, Dassey up and then to ten times.5 by reportedly happened 6:00 or 6:30 events shooting, the also revised location the p.m.3 garage, first the then inside Tere- outside car, garage. then on the floor of sa’s sequence of The details and these events shifting exchange After however, this about changed investiga- repeatedly, shooting, the first hour the March 1st pressed Dassey for more This details. tors explain- with Dassey concluded portion provides interview interrogation Avery put body he how Teresa’s for claim support most fire, car, they on the how her involuntary confession was both and unre- moved they finally up stain in how cleaned example, liable.4 For the recov- becáuse Avery’s garage Dassey went home. before contained ered remnants Teresa’s skull lead, investigators amounts of trace Questioning The Second Hour of that Teresa shot in the believed had been They eager Dassey were to de- head. investigators The then took a break scribe what “else was done to her head” During break, Dassey confer. had cutting punching. In this ex- besides to rest opportunity use the rest- ¡answer change, Dassey provide not did starting up again, Dassey room. Before looking for. He what were offered Wiegert exchange, indicating had this guesses. investigators .seemed like The Dassey gravity did understand the vague their abandoned admonitions tell investigators: of what he had told They patience the truth. lost and blurted long gonna Brendan: How take? out: Wiegert: It shouldn’t take whole lot Wiégert: right, just gonna All I’m come longer. you. out and ask shot in the Who her you get Do think I can Brendan: [back head? twenty-nine? one school] before Brendan: He did. Um, Wiegert: probably not. why Fassbender: Then tell us you didn’t . Brendan: Oh. . that? I Wiegert: twenty-nine?

Brendan: Cuz think of it. What’s at one couldn!t damage body, portion Dassey's 3.Given the few of 4. This confession also led Teresa’s Avery’s garage to another search Steven these details have been confirmed could perhaps powerful that uncovered the most surviving physical contradicted evi- investigation: physical evidence a bul- dence. But did survive what elsewhere does fragment with DNA on let Teresa Halbach’s necessarily Dassey. vindicate exam- For it. ple, Dassey contends that no marks handcuff were found on the head-board of Steven interview, however, Dassey Throughout 5. bed, Avery's plastic but thin film from a suggestions personally all that he resisted Teresa, rope manufacturing used in substance shot and he his dis- ever described n guns young age. found on the headboard. comfort from a Well, Questioning 4. The Final Hour project I due Brendan: sixth hour. break, investigators took another Supp. App. during Dassey which ate a sandwich and investigators briefly fell re- asleep. questioning, hour of In the second consequences talk turned to about to confirm investigators sought details facing: only They first. had from the limited suc- confusing Dassey provided more de- cess. you gonna do think’s Fassbender: What and the about how Teresa was killed tails happen? you What do think should main, in But status the bonfire. happen right now? from Dassey largely his account confirmed I Brendan: don’t know. hour, especially details the first about the story of his assault of Teresa. His sexual obviously know Fassbender: You in he saw of Teresa regarding what (Brendan officers, OK. we’re fire—hands, feet, forehead, part “yes”) ... nods And because what mostly remained consistent. torso—also us, you gonna have ar- told we’re ta you. you figure rest Did kinda investigators did not Signaling that coming? you For ... did will, what we Dassey resisted re- his overwhelm you go right ... can’t now. The let by investigators peated suggestions both you’re And so law will not let us. Avery that he used wires and hanging garage tonight. to torture All gonna go be able to cables home investigators Das- also tested right? Teresa. falsely suggestibility. They him told se/s my mom know? Brendan: Does on a tattoo her stomach

that Teresa had Your mom knows. Fassbender: it. is if he had seen Here and asked exchange: discussing briefly Supp. App. 157. After scars, any ...

Fassbender: did she have logistics, exchange some continued: tattoos, marks, that, you like stuff ... you Fassbender: Did kinda after can remember? telling you you us told us kinda what I tattoos. Brendan: don't remember (Brendan coming? figured this.was (Brendan nods “yes”)

nods Yeah? “yes”) (pause) know that OK. We Fassbender: a, stomach, a tattoo on her Teresa had day or? only Is it for one Brendan: that? you do remember know at Wiegert: We this don’t “no”) (shakes uh uh head

Brendan: ya time," something but let me tell you disagree Do with Fassbender: me Brendan, right thing. OK. you did sayI that? when (Brendan By being “yes”) hon- nods I Brendan: No but don’t know where est, sleep night at you can at least was. now right .... OK.

Fassbender: help cooperation and Fassbender: Your your favor. I gonna us work with exchange, Das- In this Supp. App. 150-52. gonna do or where knew, say what [it’s] can’t thought sey to what he he stuck [you’re] gonna up gonna end but [it’s] being challenged prodded despite your appreciate and we work favor investigators. (Brendan events, home from school Brendan cooperation. came continued your on p.m. played October 31st and video 3:45 “yes”) .... nods games having his until dinner with brother Id.6 left, Dassey mother. After the others Barb came then Janda mother claimed, call from his phone hé fielded a to speak room about with Brendan into shortly brother’s boss and then after n .Dassey, his arrest and now confession. sevenish,” Avery. from call At “about hands, asked his head buried his claimed, Avery Dassey joined for the he Avery happen' his' mother what would bonfire, trips four or five around making events, gave version1 a different such salvage yard picking' up th’e discarded “I nothin’” Teresa Halbach never did items on' to throw the flames. Around nine somethin’,” up His “or followed mother o’clock, Dassey helped Avery up a clean point, asking whether had spill phone garage, and after call anything done to Teresa: mother, claimed, Dassey hé' from his re- you? Jandá: Did Barb Huh?. p.m, or home 9:30 9:45 Ac- turned around really. Not Brendan: testimony, cording to his trial none the you mean not incriminating, Barb do. events in his March related Janda:...What really? happened.7 1st confession ever They my: got to Brendan: head. D, The State Courts’ Treatment of . Huh? Janda: Barb Dassey’s Confession say anything. ... Brendan: trial, Dassey moved suppress Before you by do mean Barb Janda: What involuntary. his brief- After you by (pause) mean that? What do ing hearing, judge trial and a the stated that Brendan? findings ruling. of fact in an oral detailed Dassey Supp. App. 157. was taken into judge Supp. The App. 168-77. noted Pas- interview, custody he after now which- sey’s age he IQ that had “an and observed involuntary contends was and -should not average in' level the low borderline have at his trial. been used range,” judge The noted school rec- trial, Dassey any At and Dassey regular- testified denied in ords showed that . knowledge in, of or involvement Teresa special track classes but had some edu- Halbach’s He to ex- murpler. try help. judge Dassey’s did not cation also noted record, plain telling meant of a the what he had his lack criminal noncustodial really” “they got February my mother “not nature 27th and March (as According parties to his 1st lawyer’s stipu- version of 'had head.” interviews experiences Dassey cooperate If own book 6. continued in the October 31st with a had on Avery, might “three, against years” case Steven ostensibly well he had read four his post- favor. At the have worked No '2010 before called Kiss the Girls. scenes in hearings, Dassey’s lawyer conviction and the inspired either book or the movie it are prosecutor indicated that the could State both remotely Dassey to the crimes de similar punishment for more advocated lenient generally on March 1st. See James scribed Dassey against Steven for he had testified Patterson, (1st 1995); Kiss Girls ed. Kiss 47-48, 99-100, Avery. 19-26 See Dkt. 158— (Paramount 1997) (fictional Pictures Girls 61. Also, killers) serial coast-to-coast hunt 1st, nearly Dássey months after March six gave Dassey explanation no 7. At trial for his book or never then-counsel, movie his mentioned beyond 1st confession ex- March controverted pert testimony highly suggestible that he was suggestion and a that he confused his .had lated), Dassey’s here,” Miranda judge waivers that Dassey’s found ad- days. judge from both found Das- missions the March 1st interview were voluntary sey stop answering ques- he could statements and denied knew suppress. App. motion to Supp. he tions and knew could leave room at 27th, any -February on time he The March 1st confession was- the most repeatedly continuing inter- indicated incriminating at trial. The jury evidence on March speaking est with the guilty charges: found on Dassey partic- all Dassey judge 1st. The found that both murder, ipating rape and mutilation to. on his mother consented the interview corpse. of a In August Dassey was alsp judge , quoted March 1st. The several prison. Dassey sentenced to life in filed investigators’ admonitions to tell the detailed for a motions new trial in truth, including “honesty thing here days and the same trial court held five going help you,” “honesty that’s is hearings on those in January motions free,” only thing you set upon will 2010, probing Dassey’s claims that his at- heavily so assistance; which relies now. torneys rendered ineffective interview, Throughout judge A three-judge panel of the Wisconsin found, investigators had used “a.nor- Appeals Court of Dassey’s convic- affirmed voices, speaking mal tone no no raised tions, finding that his confession was vol- hectoring, any kind.” threats “Noth- untary ineffective -assistance was video-tape visually depicts prejudicial. Dassey, State v. 346 Wis. Dassey being agitated, upset, as Brendan 2d 827 N.W.2d 2013 WL 336923 frightened, (Wis. 2013). the by questions intimidated App. The Appeals Court of investigator,” of he “displayed either and the findings used trial court’s of to -fact understanding difficulty ques- no the summarize the of March circumstances the him,” judge tions of asked the found. Dassey’s 1st and claim that-it truthful,” Though “prodded at times to be involuntary. The court then cited the stop legal time he ask to for totality “no did inter- standard such claims'—the of request applied by view or that his mother or a the circumstances—as law- lead- admonitions, yer present.” ing Wisconsin state cases. These state found, cases, C.J., judge “nothing particularly In re amounted more Jerrell (2005), Wis.2d Dassey than a reminder to Brendan N.W.2d cited of leading prece- he to tell the and discussed several duty had a moral truth.” The on dents voluntariness from the judge Dassey also found that was not United Supreme by -Ap- Court. The Court of occasionally coerced States “interviewers peals Jerrell pretending they principle than cited C.J. for the know more did” involves-, that a-’voluntariness “analysis- not because that “did interfere with [his] balancing of the power personal defendant’s char- to make rational final- choices.” And against ly, police pressures acteristics judge prom- found frank “[n]o leniency ises of . used were made statements.” Wisconsin induce clearly law uses a Dassey,” interviewers to erroneous for Brendan standard and flatly appellate trial court of findings he was fact can’t review of told “we make promises.” voluntariness. summarizing the trial After find- fact, court’s findings On the basis these concluded; ings, of Appeals the Court “given Dassey’s personal Brendan relevant ¶7 totality characteristics” “a applying findings clearly are court’s -not test, on using findings, circumstances which I’m those erroneous. we Based fact, fairly findings which Dassey has not shown detailed also conclude erroneous, provided not long investigators’ clearly as state coercion.-As were encourage honesty and do merely explanation why ments terse but sufficient for promise leniency, telling ap- a defendant not court’s trial decision was a reasonable cooperating would be to his or her totality-of-the-cir- plication the broad is not conduct. State benefit coercive cumstances test. 82, ¶31,

Berggren, App WI Wis. Pointing Opposite profess 2d 110. Nor is Factors N.W.2d they actually did not know facts Directions Triggs, App State v. See WI have. factors, recog- A number relevant we 91, ¶¶15, 17, 264 2d Wis. nize, about support Dassey’s tend claims (the deceptive tactic use N.W.2d young. the March 1st confession. He was exaggerating strength of evidence like police. He was alone with the He was necessarily against suspect does not intellectually. The offi- somewhat limited involuntary make confession but instead questioning general assur- cers’ included totality of circum is factor consider truth, leniency if he ances told stances). The truth of the confession re Dassey they promised may have believed jury for mained to determine. appeared more than At times did. Dassey’s reject on to The court went though Dassey grasp simply did trial pre-trial that his counsel claims gravity confessing of his confession—after provided ineffective The Wis- assistance. murder, rape he the officers asked pe- consin Court denied back at school that after- he would be tition for review. did file project. noon in to turn in a Portions time petition certiorari the United States leading also questioning included Supreme Court. suggestive questions, throughout interrogation Dassey follow-up faced Corpus

E. Habeas Review Federal inquiries investigators were not when the Dassey corpus a filed federal habeas them, satisfied with what he told lead- had in District of petition the Eastern Wiscon- guess. him at times to seem to In opinion, sin in 2014. In detailed the dis- a addition, confusion contradictions relief, finding granted trict court habeas crimes of Dassey’s in account Octo- promises leniency were indeed support to view that his 31st lend ber jhlse Dassey to and that his March 1st made product suggestions was the confession Dassey, 201 voluntary. confession was not they a to tell the what desire and/or A of our F.Supp.3d panel 963. divided to hear. wanted Dassey, court affirmed. 860 F.3d We time, At other factors many the same granted petition to the State’s rehear the support finding Dassey’s confes- en now with instruc- case banc and reverse voluntary. was with the sion indeed Start Dassey’s petition. tions to habeas dismiss As interrogation. stip- cii’cumstances sides, not in Dassey both was ulated Applying III. the AEDPA Standard custody in participating when he admitted 225k(d)(l) § A. Voluntariness Under went with the crimes of October 31st. He moth- his voluntarily Das- the officers and with The court decision that state given He knowledge er’s was sey voluntarily was not an un consent. confessed warnings them Supreme Miranda and understood application Court reasonable interrogation was con- sufficiently. The appellate court precedent. state drew in during shooting school hours and a com- ed in He repeated ducted Teresa. denied setting. Dassey signs suggestions showed no Avery fortable that he and had used food, physical distress. He had access in garage wires and cables to restrain drinks, and restroom breaks. The interro- instance, telling harm her. In one gation particularly lengthy, espe- questioners was Dassey by falsely tested tell- cially breaks that with the were taken ing him that Teresa a tattoo had on her every hour. asking stomach and him he had seen it. no. questioners He told them When the Dassey subject to physical was coer- pushed harder, willing say he was not cion or sort of threats at all. Given the they wrong, he knew but were he stuck history interrogation coercive tech- recollection that he had not seen a niques from which modern constitutional tattoo. emerged, confessions this standards important. investigators stayed calm AEDPA, point Under the essential here even their As and never raised voices. is that totality-of-the-circumstances found, sign

Wisconsin courts there is no gives test courts room for considerable was intimidated. judgment one, in cases where like Turning techniques to the used point factors in both directions. Given the investigators interrogation, told Das- many relevant facts and the substantial many they sey already times that knew weight supporting finding factors happened what had when fact did Dassey’s confession voluntary, deception not. Such is a common interview state court’s decision an was not unreason knowledge, To our technique. has not led application of Supreme prece able Court (and certainly not Supreme courts Yarborough This view is dent. similar to Court) subject’s that a incrimina find Alvarado, 652, 664-65, involuntary. ting answers were Frazi See (2004), 158 L.Ed.2d 938 where the er v. Cupp, 394 U.S. 89 S.Ct. Supreme AEDPA applied Court to a state (1969) (fabricating 22 L.Ed.2d 684 finding seventeen-year-old court that a relevant, co-conspirator’s confession is but custody suspect had not been in when he in our “insufficient view make this oth custody question confessed murder. The inadmissible”). voluntary erwise confession governed by general similarly totali Also, incriminating most of the details ty-of-the-circumstances standard. The suggested by were not array summarized the questioners. He volunteered them in directions, pointing opposite factors response open-ended questions. or custody custody. Emphasizing not in rule, Dassey’s story general not more more When did make that the the the sense, incomplete, leeway reaching or courts have in outcomes seemed seemed evidence, determinations, case-by-case conflict with other question- Su Dassey questions. preme ers further Court found court pressed with state an techniques Dassey finding applica are not was not unreasonable Those coercive. by binding tion responded questioning modify- precedent: to such “These differ story points, ing on lead us to ing his some but he stuck hold indications application custody on court’s of our story passages his others. Those state being support he was not standard was reasonable. The Court view that story pushed provide against Appeals a false his was nowhere close to the mark 665, example, Dassey will. For it concluded otherwise.” Id. at when resisted re- suggestions 2140. peated participat- that he had 124 S.Ct.

314 call, not for- relief hero. The Opinion The Terse does State Court .habeas requirements court met the appellate state Dassey appellate criticizes the Wisconsin by juvenile con- analyzing confessions terse, for having court’s been too decision ca- sidering age, his intellectual Dassey’s addressing just pivot- two confession of his voluntary pacity, and the absence brevity of that paragraphs. al The relative state during interrogation. The mother part opinion of the is not a reason for court that the officers read noted granting habeas relief. Given the volume Dassey later rights and that his Miranda judges have words federal devoted rights agreed his talk remembered case, might one that the this assume totali- anyway. The court coercion assessed (cid:127) requires test ty—of—the—circumstances vulnerabilities, includ- to Dassey’s relation weight they length to- courts detail at “age, intellectual limitations ing assigned to all factors and how lim- high suggestibility.” The not court did presence weight of one factor affects the most inquiry only it its whether or of other factors. relevance interrogation techniques were abusive assumption That would incorrect. the tones and The court used. examined final Supreme has Court itself issued terse voices, investigators’ find- volumes on voluntariness after a determinations speaking that the “used normal officers See Greenwald recitation relevant facts. hectoring, prom- tones, no threats with 519, 519-21, Wisconsin, 88 v. 390 U.S. prod leniency,” though ises did (1968) 1152, (per 20 L.Ed.2d 77 cu S.Ct. sought to estab- Dassey to be honest Carolina, riam); v. 384 U.S. Davis North even rapport him. The court lish 7,752, 1761, 16 L.Ed.2d 73 Dassey’s by comfort physical considered (1966). by It has ruled voluntariness he sat on a sofa and offered noting reasoning simply adopting other drink, food, restroom breaks. Holman, 478, v. 394 U.S. Boulden courts. 480-81, 1138, 22 L.Ed.2d 433 S.Ct. 4. Precedent (1969). 2254(d)(1) author does not Section pointed to Su- Dassey simply has impose “to mandatory ize courts federal precedent re- preme. Court that mandates on state courts.” opinion-writing standards these Even lief under circumstances. Williams, 568 v. U.S. Johnson review under where deferential cases 185 L.Ed.2d S.Ct. apply, AEDPA does receiye significant court decisions State has not involun- found they provide no reasons even deference tary like March circumstances Richter, Harrington at all. v. confession. 1st 98-99, 131 S.Ct. 178 L.Ed.2d (2011); F.3d Zatecky, Holman, Whatley v. Boulden v. U.S. Consider case, 2016). In 480-81, state 22 L.Ed.2d 433 findings appellate (1969), detailed court endorsed eighteen there was defendant substantial provide old, trial court from years an suffered I.Q. had Dassey’s con finding for the support anxiety “susceptible complex, and an Holman, in the voluntary eyes fession (was to coercion.” Boulden 1967). 102, law. 104, 105 He was F.2d three interrogated less than hours af Care Special 3. Juveniles “right being ter had the not he told statement, that “spe- take make a statement requirement that courts at might against juvenile be him.” analyzing cial care” used Id. confessions made 104. courteously He was “treated and al- cooperative here indicated “that a attitude eat, lowed smoke and to use benefit, [the] toilet would be to suspect’s] [the but Though years facilities.” Id. at 105. two their remarks in regard this far were from Dassey, older than was apparent- Boulden threatening 727, coercive.” Id. at dependent parents. still on his Id. ly Oth- 2560. S.Ct. interrogation er facts his more were In reviewing cases, these we remember troubling than those this Boulden case. Supreme the Court’s admonition that de interrogated 10 p.m,

was from until after termining whether a confession is volun midnight custody. after several hours in tary “requires more than mere color- Id. 104. at Police had denied Boulden’s matching Pate, of cases.” Reck v. 367 U.S. him, access to father after Boulden 442, 81 S.Ct. supposed “whether he asked was have Court, But like the- we find these lawyer,” police said not “he would comparisons helpful after “careful evalua get one until he Supreme talked.” Id. The tion of all the circumstances of the interro although Court “determined that the issue Mincey, gation.” at U.S. 98 S.Ct. .,. relatively one, ais close the conclusion 2408; Reck, see 81 S.Ct. justified” that was Boulden had confessed (finding 1541. comparison analogous voluntarily. 480-81, 394 U.S. at cases “not inappropriate” when determin 1138. voluntariness). AEDPA un “would be C., In Fare v. Michael U.S. dermined courts introduced rules habeas (1979), S.Ct. L.Ed.2d 197 clearly guise under the established law.”, again juvenile Court ruled to.existing Alvarado, 541 extensions voluntary. Dassey, Like Michael C. sure, U.S. at To be S.Ct. 2140. years He sixteen that old. claimed line application between extension blurs, police promises made during and threats existing law new factual “when interrogation “in obtaining hope show, permutations Id. arise.” The cases leniency for cooperative however, his attitude.” Id. Supreme Court has con pleas C. indicated to stop rejected Michael sidered claims similar Das- interrogation ignored. He also were sey’s, and Court do not cases police claimed he feared coercion and relief here. The Wisconsin courts require out that pointed “wept during he inter- apply unreasonably did the law find assertions, rogation.” Despite Id. these ing that. confession was volun Dasse/s determined that Michael C.’s claims tary. of coercion were “without merit.” Id. Findings B.' Under Factual Dassey, Unlike apparently C. Michael 225b(d)(2) § average have a

did not low to borderline I.Q., Dassey argues and Michael significant C. did have also he enti 2254(d)(2) § experience prior justice with the relief criminal tled under on system. id. at that the an See state courts made un ground presence finding of Though may ques of those fact: that the factors reasonable provided argue promises leniency. room for no made false tioners court, appeal Affirming direct that Michael C. should the trial “no which found made,” distinguished, promises leniency do not frank show were Appeals Wisconsin courts’ decision here was unrea- the Wisconsin Court of deter investigators’ sonable meaning within statements mined 2254(d)(1). § C., As “merely encourage[d] honesty Michael and [did] police are fiduciary suspect. the leniency.” Dassey’s argument promise

not play suspect’s on a ignorance, focuses allowed finding unreasonable that this anxieties, fears, and his uncertain- his his limitations things: his intellectual on two ties; magnify they just not are allowed interroga- in the March 1st spots the fears, uncertainties, forth to and so those im- investigators tion where he claims the point where rational decision becomes the not would even be arrested plied that he appellate court impossible.”). The state reject argument. the truth. We he told having as that be said should understood court appellate the Because Wisconsin investigators legally no made relevant the fact, findings of trial court’s accepted the Dassey. promises false trial we court’s factual determi- review court, majority, panel The district Collins, 546 directly. Rice v. nations See colleagues dissenting have viewed and our 969, 163 L.Ed.2d U.S. interrogation differently, finding psy- (2006) (indicating AEDPA review oper- chological through coercion a form 'in such a should situation deference investiga- conditioning, where different ant findings). The to state trial court extend Dassey tive tactics combined convince key points highlighted court here trial agreed to end had sides, including warning for both interrogation grant leniency and to him not questionérs promises could make exchange confessing. Dassey, for 860 F.3d (which here) the State and the supports panel explained, As its problematic honesty assurance that investigators interrogation, view thing Dassey free only that would set- Dassey multiple assurances and offered (which claim, helps especially in the theme of ‘truth leads to free- “sounded intellect). light we limited Whether ” culminating promise, in the “direct dom’ court’s on this treat the state decision ‘honesty only thing you set is the will finding of fact or a conclusion of point as a ” Id. free.’ law, nothing about it. we find unreasonable tac The state courts view these did has above, As noted way. the same Their was not tics view leniency general not treated assurances The state courts saw and unreasonable. exchange cooperation or confession read, have, exactly ques as what the we from precedents To the extent coercive. told and asked in the inter tioners might helpful in under other courts AEDPA responded. view and how he standing findings, a state court’s factual disagreement room for leaves reasonable signal general that such assur the cases state and federal courts. Dis between legally are not facts for ances relevant particular judgment agreement call determining suspect’s whether will was not show that the state court found does and a confession was involun overborne Collins, unreasonably. the facts 546 U.S. at See, tary. e.g., Villalpan United States v. 341-42, 126 S.Ct. 969. (7th do, 2009); 588 F.3d Cir. Binford, In denying Dassey’s suppression see States v. 818 F.3d also United (6th motion, 2016); weighed Cir. United the state trial court States 271-72 Corbett, (2d 2014); v. F.3d Cir. same statements that concerned the dis Jackson, panel. judge quoted v. trict court and United States F.3d (1st 2010); separate investiga instances where Cir. States v. Kont four United (7th 2001); prodded Dassey by stating that hon ny, 238 F.3d Cir. tors him, help judge Rutledge, esty 900 F.2d noted United States would 1990) (“The example[s] were a few policeman these “but

317 mentally state court that a ill be honest.” The defendant’s confession admonitions voluntary. was not at 80 four other Id. S.Ct. quotations also recounted 274. year investigators The next the Court very “similar statements” where indicated they were behind him that “the a reliability assured of confession has nothing to with its and in his corner. It these state- do voluntariness” be viewed “attempt rapport” cause extrinsic a ments as an to achieve confession evidence is promises leniency.” of true can the into inquiry rather than “frank confound findings consis- “whether a has These are reasonable and defendant’s will been over Denno, borne.” tent with the evidence the relevant Jackson v. 384-85, not us permit Habeas review does 84 S.Ct.

law. L.Ed.2d 908 (1964), Richmond, citing Rogers inferences- to set v. “use set debatable 534, 545, 735, 5 by conclusion the state U.S. aside the reached 81 S.Ct. L.Ed.2d (1961). Collins, signal S.Ct. Court later court.” U.S. seemed to direction, writing another Colorado v.

Connelly that whether confession is reli C. Police and the Law able, Best Practices voluntary, as distinct from a mat “is ter governed by evidentiary to be laws expressed by our The concerns dissent- by forum ... not the Due court about ing colleagues and the district Process Clause Amend Fourteenth potential coercive effects ment.” 479 U.S. Critics of tactics here are understandable. L.Ed.2d 473 Dassey’s interrogation of fa- see evidence through confession’s inconsis- Analysis brication reliability of a confession’s as corroborating lack of part tencies and solid totality the circumstances physical of the may evidence. Some confession’s in Connelly, survive the instruction startling, particularly inconsistencies are but it is not to interpret unreasonable Con- Dassey’s shifting on the location nelly answers foreclosing—or requir at least (outside shooting garage, on the ing—this inquiry line of before trial. We floor, garage in the car inside the cannot fault courts fail the Wisconsin consis- garage), inconsistency failure recall to measure the of Das tently sey’s the order of attacks the bedroom in this context. In addi throat-slicing). tion, (stabbing, hair-cutting, and the contradictions as some details Also, during dialogue about Teresa’s reliabili necessarily do not undermine the shooting, investigators prodded Dassey ty incriminating of the core admissions. injected (Hamilton, into Dassey, some critical facts 860 F.3d at 993-94 See J., they dissenting). discussion corroborated evidence already knew. reliability The concerns about echo the opinions

The state courts not address these of scholars who believe that did cer- produce alleged interrogation factual lack tain tactics inconsistencies tend evidence, police departments corroborating though is false confessions. Some experts acknowledged this criti- approached clear how should have changed interrogation their question, if at all. cism and have United States note, precedent point practices response. not un We must Alabama, though, interrogation In tac- equivocal. Blackburn some repeated U.S. 242 tics used in this case—like the (1960), im- challenges explain the Court the “unrelia details that seem considered bility determining practices advocated plausible—reflect confession” See, of counsel on ineffective assistance e.g., Kassin et vided Saul such reformers. Practice, al., Interviewing Suspects: operating Sci theory the the lawyer that Directions,. ence, Legal 15 & Future and of an prohib actual conflict interest under (2010) U.S, Criminological Psychology 47 Sullivan, by Cuyler 446 ited v. practice the (describing as “non-coercive” (1980). 1708, 64 100 S.Ct. 333 On L.Ed.2d “challenging] suspects’ investigators of ac point courts this the state federal and counts, by pointing out often contradictions re-, agreed. appellate court Wisconsin The inconsistencies”); Kassin, Psy The and jected this The court claim. district also Confessions, 2008 Annual Rev. chology of carefully reject considered claim (favoring 208 of Law & Sciences Soc. it, on citing placed the Sullivan ed limits investiga technique where interrogation by Taylor, claims v. Mickens may ap discrepancies tors “address 291 122 S.Ct. 152 L.Ed.2d suspect’s narrative in the account" to pear F.Supp.3d at 989.9 Dassey, We suspect fabricating). is the determine agree substantially reasons set for, interrogation over tech These debates by Id. at forth the district court. 987-93. controlling in not resulted Su niques have of In this there was no actual conflict case precedent condemning preme multiple rep or concurrent interest and no Dassey. Absent a techniques used in an resentations could have resulted Court,' we may from clear declaration conflict of actual interest.. constitutional on not create restraints new Cuero, See Kernan habeas review. Conclusion U.S. -, Given the find- state courts’ reasonable (2017) (circuit satisfy precedent does not . of ings clearly of fact and absence “[n]or, course, 2254(d)(1), § of do state- precedent Supreme.Court established treatises, decisions, or law court review Dassey, relief for the district compels articles”).8 grant relief is of habeas RE-

court’s Counsel D. Assistance REMANDED Ineffective The case is VERSED. to dis- the district court with instructions Finally, Dassey pursued also his has petition. lawyer pro separate miss original claim that 8,. (The largest Judge cites of exon- counties. most Rovner’s dissent studies nation's 75 Reaves, Dep’t showing report A. U.S. false recent is Brian confes- erated defendants Statistics, Justice, Felony among juveniles' sions Bureau Justice more common are Counties, Large Urban 2009— intellectually Defendants in mentally suspects, ill or deficient (2013), 332-34; https://www.bjs.gov/ Statistical Tables post Dassey, 952- at at F.3d See contenl/pub/pdf/fdlucQ9,pdf.) dissent’s (panel majority). False confessions are demonstrably report false con- very statistics phenomenon, even is trou- one real Post 332. fessions 2016. at From from bling. these Yet we conclude from should not reports, over BJS estimate that we can there is defendants that studies exonerated counties, just largest period, confessions, those 75 might be epidemic of an false a.s pleas guilty million there were more than 1.5 looking only studies of demon- by inferred may violent felonies. The relevant fraction wrong strably convictions. The more relevant n conservatively thus estimated number fraction uses as denominator 227/1,500,000. demonstrably every For one easy to That number is confessions. all years, there were those over false estimate, we but conservative can estimate a 6,500 guilty pleas to violent felo- more than boundary confessions lower number counties, just nies in those Statistics felonies. Bureau of Justice violent Felony Large reports Urban on Defendants by majority tally felony panel did not reach the issue. Counties violent convictions F,3d (i.e., just plea guilt) at 983. guilty confessions of WOOD, I Judge, Chief ROVNER and WILLIAMS, Judges, dissenting. Circuit Appeals As Court of the Wisconsin cor noted, rectly question whether a con coercion, questions Psychological (ia, coerced) voluntary fession is answers, which the furnished light totality assessed Questions,” ghoulish games “20 age sophistication circumstances.' The Dassey guessed which over Brendan person being questioned are critical over before he again landed “cor suspect minor, factors. When the is a (i e., wanted), story police the one rect” the the confession courts must review and rec the led the that furnished “confession” “special ord with care.” J.D.B. v. North only supporting serious evidence his mur Carolina, 261, 280-81, 564 U.S. 131 S.Ct. der conviction the Wisconsin courts. 2394, 180 (2011); Gault, L.Ed.2d In re 310 faults, eye Turning glaring a blind to these 1, 45, 1428, 387 87 18 U.S. S.Ct. deny the en banc has decided to majority (1967); Colorado, Gallegos v. 527 U.S. 370 Dassey’s petition for of a writ cor habeas 49, 53-55, 1209, 82 8 S.Ct. L.Ed.2d 325 justice of pus. They justify travesty this as (1962); Ohio, 596, 599, Haley v. 332 U.S. compelled something by the Antiterrorism 302, 68 92 S.Ct. 224 Courts L.Ed. (AED- Penalty Effective Act Death suspect’s also must the take intellectual PA). writ, AEDPA, If by as limited capacity into account. v. Connect Culombe letter, nothing a were more than dead icut, 1860, 81 S.Ct. be But it is perhaps would correct. (1961) (opinion L.Ed.2d 1037 Instead, Supreme not. as the Court wrote Frankfurter,J., joined Stewart, J.); by Richter, Harrington v. U.S. J., (Douglas, joined Black, J., by concur (2011), S.Ct. 178 L.Ed.2d “[t]he , (Brennan J., ring); joined 641-42 by a corpus habeas stands as writ safe Warren, C.J., Black, J., concurring). guard against imprisonment those held concedes, Dassey, majority as the was-a law,” 91, 131 violation Id. at S.Ct. mentally It 16-year-old. limited was thus is, say, It the Court went “a on the incumbent state courts evaluate guard against in the extreme malfunctions light his “confession” those traits. justice systems.” at state criminal Id. courts failed this Wisconsin take (citation quota internal step. argu asked at oral essential When omitted). tion marks might ment one where find evidence that panel As the district court ma- appellate took required the state court1 jority recognized, just have before us we care, for the special up counsel state came Dassey. such an extreme malfunction. at dry. point All counsel do was could out a years the relevant time old and had opinion brief mention the state court’s IQan in.the low 80s. His was Dassey’s age cápabilities. But mental coerced, thus it should not have been Supreme so what? The Court never has into if evidence. And even we or implied totality admitted said coercion, point long overlook the confes- were circumstances are beside from the input simply jots sion is so as the a riddled state court down fact or police process. its use how fact violates due without a hint about spend nothing the rest of Dassey will his life in the outcome. influenced There is (or injustice “special” meaningful) prison of the court even about because no page. I naked word on a has to leave unredressed. re- The reader has decided whether court spectfully dissent. the state idea mentioned (both of for the use of required it found the which are meaning to indicate that word (which pro- been be consistent with due would have confession to factor irrelevant cess). Nevertheless, the state clear Court first and now inconsistent with the above), or precedent exculpatory, the en banc have culled sen- majority listed damning. Notably, though attempted Wis tence here and there and have even to the from Appeals gave consin a nod a coherent confession them. to craft test, totality recording it made no mention of The video interro- however, juvenile Dassey, confes special-care gation tells another standard story—one diametrically opposed sions. tidy summary. the state’s and selective sure, Richter, Harrington To Among many flags are the red follow- 178 L.Ed.2d U.S. ing: (2011), generally holds that federal courts (cid:127) Dassey’s questions answers to fre- dispositive conclusions may not draw changed quently detectives’ from a state court’s silence. But prodding. token, can same court’s silence state (cid:127) The officers laid trail crumbs leveraged not into that be assurance (indeed, large sign-posts) to the con- required the court went the extra mile pr.S. they sought. fession Supreme the gave Court and Das- (cid:127) off-course, Dassey Whenever went sey’s age ability partic and limited mental investigators shepherd the would him majority’s finding ularized the care. The back the direction—at desired has no record. coptrary support times fatherly with the use of assur- Wbrse, off in a foot majority writes frequently by gestures, ances and suggestibility by Dassey’s extreme note questioning honesty. his of a for casting applicability doubt on the (cid:127) (Gudjonsson). February mal test at 305 n.2. As On both and March Ante painstaking misleadingly conveyed re the detectives review of the record Judge opinion Dassey, ability to think ab- panel whose flected Rovner’s reveals, stractly minimal, that his “hones- lay-person even a could see readi ty” “only thing was the that ly yielded any suggestion that will set person authority made. 860 F.3d 933 free.” [him] 2017) I), (cid:127) (Dassey generally, More it Through subsequent questioning court to pick no is entitled and choose became meant “honesty” clear which evidence to consider when evaluat investigators “what wanted to ing totality of the circumstances. hear.” Clearly Supreme Court established U.S. Dassey’s age mental limitations compelled court to decisions the Wisconsin susceptible him particularly made pay special Dassey’s age attention psychologically manipulative interrogation. abilities, including high intellectual his lev Many appear of the officers’ tactics to be so is suggestibility. el Its failure to do Technique,” from drawn the “Reid which erroneously one it why reason concluded widely for most some time the used “confession” was interrogation protocol in the Mi- country. coerced. Gohara, riam S. A Lie Lie: False for Appeals

If the and the Reconsider- Wisconsin Court had Case Confessions for have, Legality Interrogation it Deceptive done what should could Dassey’s Techniques, 33 Fordham Urb. L.J. reasonably have concluded that (2006). heavily relies on voluntary technique confession was reliable either ploys investigator presents. and other forms “theme” the false evidence Id. 213; It follows a nine-step Id. at 809. at see Christian A. Meissner & Melis- deceit. Russano, approach: sa B. The Psychology Interro- gations and False Research interrogator confronts the suspect [A]n Confessions: Recommendations, 1), guilt Canadian J. Po- (Step then with assertions Security develops psychologically “themes” 56-57 lice & Servs. 2), justify (Step or excuse the crime long expressed Courts have concern 3), interrupts (Step all efforts at denial approaches about such Tech- Reid factual, moral, suspect’s overcomes rely nique psychological coercion. 4), objections (Step and emotional en- years first Just four after the edition passive suspect does not sures that the published, manual was al., Inbau et 5), (Step shows sympathy withdraw ix, supra, at Court Mi- urges understanding suspect Arizona, randa 384 U.S. 6), face-saving cooperate (Step offers a (1966), “repeatedly alleged construal of the alternative cited criticized” Reid implicitly 7), guilty (Step gets the suspect act Gohara, n.93; approach. supra, at Mi- the details of or her crime recount (“To randa, S.Ct. 1602 8), (Step and converts the latter state- sure, intimidation, physical this is not (Step into a full ment written equally dig- but it is of human destructive 9). nity.”). Miranda commented that Kassin, Psychology Saul M. On the Con “recognized had decades Does Put Innocents at Innocence fessions: physical, coercion can as well as be mental Psychologist 215, (2005); Risk?, 60 Am. 220 of the the that the blood accused is not Driver, D. and the see Edwin Confessions only inqui- of hallmark an unconstitutional Coercion, Psychology L. Social 82 Harv. of 448, (quoting Id. at sition.” 86 S.Ct. 1602 (1968) 42, (explaining 51-55 the social Rev. 199, Alabama, 206, 361 Blackburn v. U.S. tactics). impact of the psychological Reid (I960)). 274, 4 242 Noth- 80 S.Ct. L.Ed.2d Investigators encouraged by are to start ing respect changed: in that has the Court suspect emphasizing accusing the while the regularly psycholog- hold that continues importance telling of the truth. Fred E. invol- ical coercion can render a confession Interrogation al„ Inbau Criminal et Fulminante, untary. v. 499 U.S. Arizona (4th 2001). They Confessions 213 ed. learn 287-88, 1246, 279, 111 113 S.Ct. L.Ed.2d ways empathy suspects, to build false (1991); Fenton, 104, 302 Miller v. shifting moral for such as the blame the 109, 445, (1985); 88 405 S.Ct. or person expressing to another offense Bustamante, 218, v. Schneckloth U.S. suspect’s understanding actions. Id. 226, 2041, 36 L.Ed.2d 854 213, Investigators at 241-42. are encour guid Following Supreme Court’s aged physically suspect, to sit near the ance, recognized too repeatedly we contact, eye maintain “soft and warm” “psychological coercion can re alone 214, speak sincerely. Id. at 349. aWhen ” involuntary sult in an .... confession suspect implying guilt, makes an admission 93, 100 Lehman, United States v. 468 F.2d to make investigators are directed state 1972) (7th (conceding psy that “subtle Cir. of at ments Id. 366. The reinforcement. ploys” bias; chological can a confession technique builds in confirmation render Davis, involuntary); Etherly v. F.3d investigators instructions assure that while (7th 2010) possi Cir. suspect stay (considering will an innocent resolute denials, part as guilty person psychological her a will to ble coercion submit test; majority significance totality noting the need dis The some while finds coercion, the notion tactics were tinguish detectives’ between the one coercive, per is red se but a hand, truth, tell the encouragement These assessed herring. cases cannot be other); v. Villalpan on the States United sentence, or one one restroom based on do, (7th 2009) 588 F.3d Cir. thereof) break, (or of or comfort lack (“[A] leniency promise may false of render in one room. Court has ....”); involuntary a statement United re inquiry structed the voluntariness (7th Dillon, States Cir. F.3d quires of the com a full consideration 1998) (“A if, light voluntary is confession of pounding techniques influence the, circumstances, totality Miller, 474 suspect.” “as to this applied product a rational in Many U.S. not the and free result tellect will and majority as lean factors the cites evidence abuse, intimidation, physical psychological finding favor of voluntariness— interrogation or deceptive that have tactics room, the soft interview offers of food will.”); free overcome defendant’s drink, speaking normal tones—viewed Reed, Burns v. 44 F.3d types questions the context 1995) (describing process of due the “body investigators demanding were answers law, proscribes generally case which conceded intellectual disabili physical psychological or of con coercion ties, Psychological were literature coercive. “well-established, fessions" as albeit heavi Kassin, M. makes See Saul clear. ly fact-dependent”). Outside court Evidence, 52 Psychology of Confession room, long acknowledged our nation has (1997) (criti Psychologist AM. 223-24 through international its commitments that cizing Technique’s the Reid maximization just can bad as tactics, mental'mistreatment methods, or scare such as the false physical counterpart. its Convention ploy, in to minimiza evidence its addition methods, against Cruel, “impl[y] tion an offer Torture and Other Inhuman which leniency,” .police suspect lull where into Degrading or Treatment Punishment security” expressing sense art. Dec. 1465 U.N.T.S. 85 “false tof blaming accomplice, an un syinpathy, (defining encompass physical to torture situation); gravity of. the derplaying pain suffering).' and mental Russano, supra, at see also & Meissner majority downplays opinion (discussing the 57-60 “coercive” nature reality by refusing acknowledge any- par interrogation techniques Reid thing more than exhaustion mental ticular concerns minors and suspects promises. far But worse than that false intelligence). with low going investigators on. Dassey’s was re- majority brush aside even The state and fused leave him until he gave alone possibility psychological coercion an “honest” “honest” answer—where them applied Dassey. They claim Das that , meant answer officers wanted that sey’s March 1 confession revealed certain no aspect, by to hear. though One means “critical” that were details corroborated one, only of the-coercion was the evidence, false independent some of which law promise “honesty” “set that would him publicly I never disclosed. enforcement free.” But there much more. A was so argument. responses have several that brief First, review what on shows that these went if a it on the.false idea that rests decisively “accurate,” fell “coercion” tactics on the side is indicates .confession it of the not coerced. See line. was Conner McBride, facts), reliability questionable F.3d 652-53 on the 2004) totality test, (considering, though might under the that link justifies be. This a reliability of support a confession to a reliability Dassey’s look at the confes- that the confession volun- conclusion was sion, present purposes if for even lack of tary). reliability But are coercion and two reliability theory. A stand-alone things. A can be different look some of “key” at how these facts reliable, yet voluntary coerced it can emerged instills no faith either their Yet if it but unreliable. even were true reliability or knowing voluntary their Dassey’s confession revealed “critical” reference, I quality. For ease of sum- details, the confession would not be admis- following marized chart how the totality sible evidence cir- investigators the “critical” extracted de- cumstances demonstrated that' it was not looking for from they Dassey. tails were It voluntary. nothing shows there ensure offering indepen- his own importantly, a

Just as closer examina- Instead, dent recollection. the officers tion of the reliable facts on used supposedly leading questions, majority shows that combination coach- they which relies facts, thing. ing, accept and refusal to one of are no such Without reliable way guesses as the “final” there is no the Conner infer- answer until draw (ie., finding ence matched what to hear. base voluntariness wanted (1979), critically C. AEDPA different: Michael majority concedes that many intelligence “nearly average factual and had require a identical was does not criminal prior justice an a decision involved interactions with pattern” find that 726, at 99 system. v. Id. S.Ct. 2560. While application of law. Panetti unreasonable Holman, 478, Quarterman, Boulden v. 394 U.S. 89 S.Ct. 127 S.Ct. (1969), (2007) (citation 1138, may superfi- L.Ed.2d 433 168 L.Ed.2d 662 omitted). cially more similar to Das- appear is in essence But that what the case, given In it is of relevance arguing has dubious majority demanded. se/s (along it have found con- the fact that was decided non-AEDPA cases even C.) Supreme circum- Michael decades before voluntary under similar fessions recognize instructed courts to stances, majority two decisions. Court lower cites C., unique concedes, psychological v. 442 the vulnerabilities Fare Michael But as incomplete youth stemming from their L.Ed.2d U.S. See, e.g,, Gra neurological development. guessing thought investiga- at he what Florida, v. ham to hear he could leave. U.S. tors-wanted so S.Ct. Roper (2010); days of L.Ed.2d 825 was reassured across two Simmons, 569-70, being interviews that “honest” allow U.S. would 1183, 161 go Although “free.” an adult him average intelligence might recognize the Appeals Court Wisconsin failed allusion, (“You John 8:32 will Biblical see reasonably apply any meaningful way truth,.and you the truth set know will principles least three that the free.”), Dassey not of an adult (1) clearly special has established: Instead, average intelligence. he was a confessions, (2) juvenile care for consider- mentally who not un- teenager limited did totality ation circumstanqes, derstand abstractions. “20 Playing their and, (3) importantly, prohibition' most Questions” game, the Das- officers forced psychologically coercive tactics. This led sey try out answers until he different the kind of extreme malfunction in the upon stumbled the answer wanted— adjudication case which defined them answer 2254(d)(1) provides remedy. By section sufficiently truthful. And what was Das- turning eye blind these problems, sey’s response all after this? He asked if majority essentially has cor- read habeas go to to in he was back to school turn free pus relief out of the books. due, project a that was and when told that not, he he thought could indicated that he II in jail just day. he would for be one No second, independent, There is reason of more conclusive evidence his literalism (cid:127) why correctly granted the district court and of understanding his lack is needed. Dassey’s corpus petition habeas and our By no finding promises of original panel uphold that lenience were was correct that Court of ruling: Appeals made and the confession was volun- Wisconsin tary, the of Appeals Wisconsin Court made made factual unreasonable determinations. — Cain, U.S. —, an of fact in v. unreasonable See determination Brumfield 2269, 2276, (2015) light convincing weight of the clear and of corpus evidence. (granting habeas relief sec under 2254(d)(2), tion needing without reach Ill 2254(d)(1)

petitioner’s argument). section court, The district whose factual assess AEDPA, Under the role of the federal us, ments deserve some from deference reviewing Dassey’s petition in courts found that of Appeals the Wisconsin Court is quite habeas relief limited. But AEDPA erroneously investigators concluded that paralyze not of a does us face clear no promises “leniency.” of According made Due,Process constitutional violation. court, though no district statement against and the right Clause self-incrimi- particular the confession rendered invol that, nation demand order be admis- untary, investiga the cumulative effect evidence, sible in suspect’s confession tors’ Dassey’s tactics free will. overbore be, voluntary. Dassey’s not. must Be- was coercive, The. majority dismisses this ber detectives concern used interro- cause “specific” promise, gation cause there intellectually was-no tactics on an disabled juvenile, lenience. But as the court Dassey’s conclud- will was overborne dur- district ed, examining totality when interrogation. of the his March Without this circumstances, .Dassey involuntary. highly is unreliable confes- clear sion, considering Dassey’s not so in against appeal. was almost do the case reason, Dassey’s granting For this conviction cannot This court should nonexistent. corpus stand.-Unfortunately, of habeas four members petition for writ opportunity retry panel en banc giving the state an seven-member court him, agree—a do I it so I respectfully dissent. decision believe has desires. Nevertheless, a-profound injustice.

worked WOOD, ROVNER, Judge, Circuit I hope colleagues through- to convince my WILLIAMS, Judge, Circuit Chief out the courts reform of our under- Judge, dissenting. standing long coercion overdue. When conducting a totality of the circumstances believe, I explained I continue to as review, most courts’ evaluations coer- panel opinion, Judge Chief cion still largely are based on outdated .argues, so persuasively dissent Wood’s human psychology ideas rational about court failed fulfill the state decision-making. bring -It is time to our juve Supreme Court’s review mandate twenty- into the understanding coercion care, special and un nile confessions with - century. first . reasonably confession held voluntary. for all reasons And ago century Half a Judge Chief has ex upon which Wood police misrepresentations during held that original forth in pounded and those set although interrogations, relevant to a total Dittmann, panel opinion Dassey ity inquiry, circumstances- were 2017), reh’g banc F.3d en in’ sufficient to themselves render 4, 2017), granted, opinion I (Aug, vacated voluntary an inadmis otherwise respectfully I separately too write dissent. v. Cupp, Frazier sible. point to simply out the chasm how between 1420, 22 In L.Ed.2d historically courts have the na understood deceive, words, trick, police may con other of coercion and and what ture confessions ceal, of imply, any in and mislead number about coercion ad we now know with the that, totality a of the ways, under provided profiling DNA and current social vent of evaluation, they do not de circunjstances stroy research. science suspect’s ability a to make a rational Although hope (finding interrogator’s I write in of id. an lie encour- choice. See suspect a insuffi aging update courts to their that fellow- confessed understand- had coercion, ings my voluntary of to make an otherwise con factual nature cient inadmissible); Procunier v. proper conclusion of Atch about outcome fession 454, Dassey’s petition depend ley, habeas does not (1971) change (determining it any Supreme on in that law. Current per police to precedent requires that a court view coercive for se send not agent to totality cooperating of of in a insurance deceive the circumstances confessing to interrogation, to defendant into obtain special take care children); evaluating juve- payments for see the confessions of insurance when Villalpando, comply To United States v. niles. with the command also F.3d 2009) Court, therefore, (“Trickery, de court must ceit, not .totality do render impersonation include within its evaluation even "inadmissible”); impact United the circumstances the coercive States (7th Cir. interrogation Rutledge, 900 F.2d techniques particu- upon 1990) (noting permits “the subject that law lar vulnerabilities the individual cajole, ma- pressure conceal techniques. police those court state did facts, In that actively up a world where we believed “inno- teriál mislead—all limits”). not people‘do they cent to crimes confess commit,” willing not did- were toler- we cases, however, in an were born These significant deception by ate a amount of told us era when human intuition that rubric, police. thinking Under people that “innocent do not confess went, (or person the innocent at least the largely crimes” still This unchecked. sane, majority of healthy, vast innocent tendency is rooted in-the mind’s belief average intelligence) adults would police that statements made to a assume response in to deception confess even against are one’s interest officer that self cajoling. developed And so case in our law or, to put simply, can be trusted it presumed a factual framework in which we “I thought most of us that have that would trickery that the deceit used I to a crime not com- never confess did on officers would little effect the in- mit.”1 studies confirm Peer-reviewed nocent. jurors hard-to-dislodge tend to have be- that, it suspect except liefs that a who is innocent could If is true in extreme And, cases, confess, manipulated into innocent confessing.2 people do not what fact, notion precisely this false is what does if Fass- difference make detectives jurors implored Wiegert the state bender and made false-assurances believe, arguing closing deception trial in interrogating and used Das- “[pjeople sey? they gave general who are innocent don’t what confess.” So assur- know, however, R. of leniency, leading questions, 19-23 144. We ances :used information, unequivocally Dassey this statement is incorrect. fed lied about how confess, had, people they Innocent do fact much information told shocking regularity. they side, do implored so with were on his him As Registry “honesty only thing The National is the that will set June. 1,810 free,” answers, you suggested Exonerations had collected data even and- exonerations in the United States since went far as to so tell confused and (that floundering Dassey number as December that Teresa had been 2,132), “Dassey subject that data includes 227 cases shot the head? was not of falsely innocent who people any to coercion or of physical sort threats confessed.3 us, all,” research majority “[gjiven This indicates confes- false tells (defined indisput- history sions in which of interrogation as cases coercive tech- - ably innocent niques individuals confessed to from which modern constitutional commit) ap- crimes did not in for emerged, occur standards confessions this is Ante of proximately 25% homicide important.” cases.4 at 313. al, Exonerations,

1. Registry Saul et M. Kassin False Confes tional of Police-Induced Con- (June 12, 2016), Recommendations, http://www.law.umich. Risk sions Factors and fessions: (2010). 34 L. & Hum. Behav. edu/special/exoneration/Pages/false- confessions.aspx. n al., 2. Iris Blandón-Gitlin et Jurors Believe In terrogation Likely Tactics Are Not to Elicit al., Gross et Samuel Exoneration in the Expert False Will Witness Testi Confessions: States, Report by the Na- 1989-2012: United Otherwise?, mony Psychol, Them Infonn Exonerations, 58, 60, Registry of tional Crime & L. https://www.law.umich.edu/special/ al., Years, 3. Samuel Gross et exoneration/Documents/exoneration For 50 You’ve s_us_l Silent," 989_2012_fulI_report.pdf. The Na Right Had "The to Remain concedes, importantly,- majority facts that as the we when the But what do do “very stan- one confession is our constitutional even coerced false supported “modern Ante at 317-18 n.8. fifty-year-old troubling.” any from a under- dards” come Indeed behavior, when human standing of false is an affront to coerced thought we knew about the once process what we and cannot stand. due we now know psychology of confessions Certainly intuition human makes al- long-held to true? Our idea imagine that some- most inconceivable to crimes not confess people innocent do might of falsely one confess the murder in DNA upended advances has been in Kev- one’s own child. Yet October in approxi- know now that We profiling. just Wilmington, Fox Illinois did that. of in which mately 25% homicide cases sexually assaulting He confessed persons unequiv- later have been convicted daughter, placing tape over her duct evidence, by DNA ocally exonerated mouth, river, drowning her then committing the falsely confessed to suspect going sleep.6,7 home to His confession was out that points majority crime.5 The accounts of her mov- detailed and included known false confessions is low number of strug- kicking in the water and guilty the total compared to number gling tape as remove duct she Ante at 317-18 pleas to violent felonies. confes- quickly drowned. He rescinded his for comparison inappropriate This n.8. sion, spent eight months until but prison First, guilty number two reasons. DNA him testing suspect ruled out a wrong Defen- pleas is denominator. Illinois dropped State of situa- plead guilty all manner dants Hayes, generally Fox v. charges. See tions, interrogations by the only after 2010). only Not did the F.3d Many Dassey. police, as was the case with suspect, him as a but DNA alone exclude defendants, accept plea af- example, for doubts, remaining had for who with a carefully weighing options ter their man years conviction of six later another having subject been lawyer ever without con- unequivocally certain that made it his. only type of interrogation—the a coercive In Eby, fession Scott had been false. are concerned confessions with which we relative, raping for prison who was Moreover, impor- and more in this case. At confessed the murder.8 numerator, the statistics tantly, in the jame living not far from the murder he had been only who those false confessions include on high drunk and home. While the Fox form based some been exonerated houses, Eby rob some cocaine decided (DNA, impossibility, objective evidence upon sleeping happened when he another, etc.). The uni- the confession Fox, three-year-old Riley he abducted confess is un- people falsely who verse her, her, sexually assaulted larger people than subset doubtedly then His DNA to cover his crime. her fortu- drowned confessed then been who have and tape on the used that found duct to matched enough have been exonerated nate boots, of had Riley. pair A which But most bind objective, irrefutable evidence. Schmadeke, I'm the 'Lowest Kind 8. Steve 5. at 331. Id. of Slime,’ 3-Year-Old Killer Confessed. of Smith, Fox, Bryan in True 6. Kevin Stories of Investigators' Path to Scott Records Outline (Rob et Warden al. False Confessions 2011, 26, Trib., Wayne Eby, Feb. Chi. eds., 2009). Smith, Nightmare: A Look the Bryan 7. at Case, 3, Mag., July 2006. Riley Chi. Fox scene, population of photographed, at who

been found were exonerees ignored years, then for younger crime, and had the name than 18 the time of the at tongue. “Eby” written 42% of confessed to exonerated defendants committed, they crimes had as did 75% ago, the'Supreme Five decades when of mentally ill or exonerees who were meri- opinions allowing its interro- Court issued Overall, tally one disabled.11 sixth gator there was deception, no DNA evi- juveniles, mentally could exonerees were dence that demonstrate with such dis- clarity abled, people both, that innocent they were confess- or* but accounted 59% 'to crimes had not at a Indeed, committed yoüth false confessions.12 and rate, therefore, surprising only limit- disability intellectual are two most body psychological explaining ed science commonly suspects cited characteristics why happens. falsely.13Dassey un- who Confess suffered now, weight der the of both despite overwhelming

Even characteristics. ev- regarding the idence coercive nature In specific factors addition constitutionally permissible interrogation suspect, some of factors induce techniques, changed our un- we have (cid:127)externally imposed. false confessions are of how to view facts derstanding sur- “isolation, long interrogation These include rounding evaluating coercion when the to- accusations, repeated periods, .deception, tality of the circumstances. Yet now we evidence, presenting implicit/ex- fabricated growing body rigor- have a robust plicit promises or punishment threats of ous, peer-reviewed, legal and'psychologi- leniency, minimization maximization or demonstrating cal research' how' current moral legal seriousness or -conse- interrogation people, tactics influence arid “Maximization”, quences of the offence.”14 juveniles particularly intellectually im- whereby technique describes the the inter- against paired people, act their own rogator exaggerates strength -of the seemingly in such a self-interest irrational magnitude of manner.9 evidence and the charges.15Dassey’s interrogators employed Some of the factors that induce false by constantly maximization reminding confessions are internal. Studies have dem- Dassey, already everything.” “We know personal onstrated that .characteristics 19, See, 17, 24, 26, 28, e.g., 23, R. 19-25 at illness, youth, cognitive such as mental 36, 30, 81, 48, 50, 54, 41, 44, 47, disability,, suggestibility, desire ' 71; describes “Minimization” tactics please may others induce false confes- designed suspect lull into are survey sions.10Á of false confession cases believing magnitude thb from 1989-2012 although only found charges 8% of no adult exonerees with the seriousness offense known men- crimes, falsely will downplayed tal'disabilities confessed lessened 'he con- Kássin, al., Confessions, 9. See M. False Saul 13. Samuel R. et Exonerations Gross (2017). through Cogn United Sci. el439 States 95 J. Crim. WIRES Criminology L. & al., 10. et supra Blandon-Gitlin note al., supra 14. Blandón-Gitlin et note at 240. . 1989-2012, Gross, 11 supra Exonerations note al., Interrogations 15. Saul M. et Police Kassin 4, at 60. Communicating Promises Confessions: Implication, by Pragmatic and Threats 15 L. & (1991), 12. Id. Hum. Behav. 234-35 tation,- Studies demonstrate mini- fesses.16 that maximization-' and minimization— suspects leniency mization causes to infer the psychological strong-arm tactics that if an explicit promise the same extent as are known to produce coerced confessions made, increasing only had been the in even of average adults intelligence. (from of rates true 46% to 81% confessions Dassey’s interrogation thus a combined in experiment) one also the but rate perfect storm these internal and (from 18%),17,18 false 6% to confessions Al- exter: nal-elements. He was young, of low intel- though a a court must exclude lect, manipulable, adult, a friendly without by direct leniency obtained promise Villalpando, (see, accusations, United repeated States faced e.g., deception, 2009)), evidence, implicit F.3d re- fabricated the explicit search promises demonstrates minimization of leniency, police officers disin- the techniques equivalent are in functional genuously assuming the fig- role father impact suspects.19 their on investiga- ure, and assurances it his was tors in this case mini- employed , classic fault.20 techniques telling mization by repeatedly many years, For technique the Reid has Dassey that his was not fault that he by been experts scholars and fór criticized uncle, his committed the crime because increasing the false rate confessions.21 See, Avery, Steven him do it. had made Miranda, As far back as the 28, 47, 50, 60, e.g., R. 19-25 at As 62. Chief employ- “[e]ven without warned Judge points dissent, Wood out her in ” degree’ the ‘third used in case, brutality, interrogators as in most the heavy Reid “exacts a toll on States, technique forces in the United used Reid on Technique liberty obtain individual and trades weak- Dassey’s confession. isolation, technique individuals,” “may give This involves confron- ness even frustration, finally 16. Id. at 235. .him informed 19-25 at Teresa had been the head. R. shot response pressure 60-63. In from the inves 17. 248. Id. at tigators, changes the he locale the crime (Id. 72-73), garage from the house at al., 18. Investigating Melissa B. Russano et (Id. 20, 31-32), at the color Teresa's clothes True False Within Novel Confessions R, (Id., 80-81, 121; of the knife at location Experimental Paradigm, Psychol. Sci. 23-24, 27), 19-34 at whether Teresa was 484(2005). (R. standing porch school after 19-25 19-20, 90-91), 27-28, Avery at whether went Kassin, Interrogations 19. Police and Confes- (Id. hood of Halbach’s'car at under-the 77- sions, supra note 248. at 80), (Id. 23, 32-33; when the fire occurred at 55), and he R. 19-34 at whether cut her hair majority 20. The has reservations about (R. 19-35 60-61; 36-37, 65 at R. 19-34 at Gudjonsson use of Suggestibility. Scale 98). -66, theory'of Even under the state’s thus no states that it can make conclu case, Dassey, the naive who had never been in disputed expert testimony sions from the trouble with the bad law never and- had about the results. at 305 n.2. Ante Whatever woman, experience readily sexual might Gudjonsson Suggesti one make manipulated participating his uncle into itself, Scále, bility interrogation speaks repulsive and heinous crime. One does not Dassey is almost desire to frantic find Gudjonsson. need .Suggestibility Scale story investigators example, seek. For conclude, party’s theory under either of tine response question hap about what case, suggestible highly head, pened Dassey, guessed to Teresa’s at manipulable. every possible injury injustice to a head 21.Kassin, (hitting, cutting, punching, Confessions, supra throat hair cut False note until, ting) hoping please officers i over, current, even under our anachronis- to a confession.” Miranda v. false rise coercion, n.24, Arizona, understanding Dassey’s of 455 & tic (1966). Recently, transpar- so and obviously confession was Associates, of one & coercively Wicklander-Zulawski that it is ently obtained unrea- firms, largest police consulting the nation’s Dassey, sonable have found otherwise. training in the stop it detectives said will however, rely finding not on this need taught stating it since method has precedent Existing Supreme Court either. getting of that it “is not an effective way deceptive and significantly allows ma- spate information.”22 After a truthful interrogation techniques, nipulative but cases high-profile false confession be very techniques those then evalu- must 1980’s, from an Great Britain transitioned ated, totality in a of the circumstances ap- and Reid-like accusatorial coercive analysis, for what are. investigative to an of inter- proach model requirement that confessions must deception, coer- viewing prohibits which voluntary principle is a the heart of be at cion, Meta-analyses minimization.23 legal system. Although psychological our in- laboratory experiments twelve different com- physical torture and coercion are approach in- dicate accusatorial monplace some countries as means of of con- both rates creased true false “confessions,” obtaining system jus- our fessions, information-gathering while the rejects notion tice that convictions can increased the rate confes- approach true through such abuse. We refuse obtained increasing also false confes- sions without accept conduct a means ob- as such sions.24 information, taining only because it court, knowing what No reasonable state confession, impacts veracity of the but interrogation we about coercive now know it is conduct human because that we techniques viewing Dassey’s interro- beings govern- cannot our tolerate from gation light age, of his defi- intellectual one, ment. In a case as this where such cits, manipulability, possibly could crime of investigators are faced with a concluded brutality horrific loss of a trea- and the my voluntarily given. Although life, impulse to coerce a confes- sured will, evaluating hope that our courts when suspect may from a be particularly sion circumstances, engage totality strong. judges, As we are entrusted with understanding current more responsibility against protect such coercion, start, Dassey as I noted at actions, uphold princi- those abusive change existing does need a our protects even in ples our Constitution any existing precedent the darkest times. prevail petition. on his habeas What law law, interroga- What occurred changed has is not the our under- here was but juvenile. of an intellectually impaired tion standing illuminate what facts that subjected myriad psycho- constitutes coercion under the law. More- Kassin, Confessions, supra Hager, Change Eli 23. False note 22. The Seismic In Police Interrogations: Major Player A In Law En- Longer Says A Meth- Will No Use It forcement al., A. Meissner 24. Christian et Accusatorial Confessions, To od Linked False Marshall Gathering Interrogation Information (March 7, 2017, Project p.m.), https:// 10:00 on True and False Methods and Their Effects www.themarshallproject.org,2017/03/07/the- Review, Confessions, Meta-Analytic A J. seismic-change-in-police-interrogations. Exp. Criminology 481-82 techniques logically coercive but the state interrogation

court review his did special required by Supreme care precedent. His confession was

voluntary and conviction should not

stand, yet an impaired teenager has prison. I

been life view this sentenced miscarriage justice. I profound

respectfully dissent. SULLIVAN,

Daniel Petitioner-

Appellant, America,

UNITED STATES of

Respondent-Appellee.

No. 15-2023 Appeals,

United States Court

Seventh Circuit.

Argued November

Decided December

Case Details

Case Name: Brendan Dassey v. Michael Dittmann

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Dec 8, 2017

Citation: 877 F.3d 297

Docket Number: 16-3397

Court Abbreviation: 7th Cir.