Federal Court of Appeals Rules That Brendan Dassey's Confession Was Not Coerced and His Conviction Should Stand [Updated 12/8/2017]

Making A Murderer Xmas Message

Making a Murderer Update: Brendan Dassey Release BLOCKED (Brad Schimel & Judges EXPOSED)

Much of the Dassey-focused portion of Making a Murderer illustrates how Dassey's first lawyer did a terrible job. The lawyer seems to have concluded that Dassey was guilty without even meeting with him and without ever considering the possibility that he might be innocent, gave damning statements to the press, and hired a private investigator who was more or less working for the police. However, the key evidence against Dassey was the video of an interview before his ineffective lawyer began representing him. On the basis of Dassey's recorded confession, the jury convicted him of murder, and his state court appeals failed. Despite the very high burden, Dassey obtained habeas relief from a federal district judge, who concluded that the confession was involuntary. A panel of the Seventh Circuit affirmed, but last week the en banc Seventh Circuit reversed by a vote of 4-3. [Source]

Brendan Dassey’s confession was coerced. In a society that values the presumption of innocence and the reasonable-doubt standard before an individual can be deprived of his freedom, Brendan Dassey’s story is disturbing; indeed, frightening. There is enough reasonable doubt here to drive a tractor-trailer through. [Source]

When Finality Trumps Common Sense: Brendan Dassey Denied
By Justin Brown, Brown and Nieto Law Firm

December 13, 2017

This week the Seventh Circuit Court of Appeals upheld the legality of Brendan Dassey’s confession to the 2005 killing of Teresa Halbach, finding that it was voluntary and could be used against him at trial. To many of the millions of people who watched video of the confession in the Netflix documentary series “Making a Murderer,” the appellate court’s conclusion was incomprehensible.

Dassey was 16 years old at the time and it was apparent that he had an intellectual deficit. The police spoon-fed him a confession that he barely seemed to understand; they led, and he unwittingly followed. At one point, Dassey, oblivious to the extent of the trouble he was in, poignantly asked whether he would be home in time to see Wrestlemania. The scene made viewers cringe.

Most of us know how all of this played out for Dassey: following his so-called confession, he was arrested, tried and, based almost entirely on what he had told police, he was convicted of murder. Now that the Seventh Circuit has rejected his claim, by a 4-3 vote, it would take the improbable intervention of the Supreme Court to grant him any relief.

So how could the court system uphold Dassey’s conviction and affirm his sentence of life in prison? The answer lies in a powerful tenet of criminal law that is as much to blame as anything else for wrongful convictions.

Our criminal justice system values “finality” above virtually all else. It is enumerated in our statutes and embedded in our Supreme Court jurisprudence. As the argument goes, litigation cannot drag on forever, and, for the sake of judicial economy, our system needs to reach a conclusion. Judges, juries, victims and even defendants need to put the past behind them, according to the principle of finality, and only then does society reap the benefits of closure.

Yet, this notion of finality has very real dangers – and these dangers are played out in courts all around the country. Overly strict adherence to the tenet of finality can mean that preservation of convictions takes precedence over ascertaining the truth. 

When this powerful legal principle is put in the hands of aggressive prosecutors, with receptive judges, it can act as a trump card more compelling than even the most egregious constitutional violation. 

Making matters worse, most inmates are poor and distrusted, making it even more unlikely that they can mount the type of legal challenge that can overcome a settled conviction.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) – the statute under which Dassey petitioned the federal courts for relief – is partially to blame. The law erects so many obstacles in the name of finality that even an innocent petitioner is unlikely to be granted relief. 

In fact, while actual innocence can help an inmate clear some of ADEPA’s procedural hurdles, it does not in and of itself entitle a petitioner to relief.

The legal system’s deference to finality is particularly troubling as we increasingly become aware of the prevalence of wrongful convictions. 

DNA testing has taught us that sometimes – more often that we would like to admit – the criminal justice system gets things wrong. Innocent people get convicted. Unfortunately most wrongful convictions cannot be cured by DNA evidence. 

Criminal defendants are wrongly convicted based on mistaken identifications, junk science, lying witnesses and, yes, false confessions. 

While some wrongful convictions are overturned, most are not.

It is undeniable that the need for finality in criminal convictions is legitimate, even important. But so too is the need for justice and fairness. It is heartbreaking to think that even one person would wrongly spend his life in prison for a crime he did not commit. There is wisdom in what Benjamin Franklin once said: “It is better 100 guilty Persons should escape than that one innocent Person should suffer.”

Our system fails us all when it favors archaic rules and obscure technicalities over truth. 

The case of Brendan Dassey is one instance in which the criminal justice system has gotten it wrong. 

Upon viewing the video recording of his interview, common sense tells us that the police coerced him. His confession was involuntary and it should have been thrown out of court. Yet, the further along in the legal process Dassey goes, the more unlikely it becomes that the problem will be corrected. At some point, the rigors of our law, and the premium placed on finality, become too much to overcome.

The outcome of the Dassey case is not something we can be proud of. Rather, it underscores a problem with our system that we need to fix.

The Tragic, Real-Life Epilogue to Netflix’s “Making a Murderer” (Excerpt)
By James Warren, Vanity Fair

December 11, 2017 

A federal appeals court in Chicago has released a rather astonishing 4-3 decision in the case of Brendan Dassey.

(A version of this column originally appeared on Poynter.org.)

The press evince justifiable pride these days over so much great work—on sexual harassment, Donald Trump and myriad other topics. For sure, it's mixed with anxiety over shaky business models, a Trump-fueled decline in public esteem and painful screw-ups, such as those of late by CNN and ABC News.

And then there's this frequent occupational reality: press achievements that come crashing or go unacknowledged. Those limits of journalism are typified by an engrossing and controversial Netflix series and its account of a troubled young man named Brendan Dassey.

On Friday a federal appeals court in Chicago released a rather astonishing 4-3 decision in which it overturned a lower court and upheld a murder conviction against Dassey, a learning disabled Wisconsin man who was badgered by cops (at age 16) into a murder confession. The interrogation video was a central element of the Netflix series, Making a Murderer, an exploration of apparent police and prosecutorial misconduct that got tons of attention after it premiered on Dec. 18, 2015. Here's a Rolling Stone piece, one of many.

As much anger and conflict as the 10-part series generated about the conviction of the central figure, Steven Avery, there was virtual consensus that his nephew, Dassey, was screwed.

Even the reviews that underscored ambiguity about the whole Netflix project, such as in The New Yorker, were taken aback by Dassey's fate. The New Yorker, for one, tagged him "a stone-quiet, profoundly naïve, learning-disabled teen-ager with no prior criminal record, who is interrogated four times without his lawyer present. In the course of those interrogations, the boy, who earlier claimed to have no knowledge of (the murder victim), gradually describes an increasingly lurid torture scene that culminates in her murder by gunshot. The gun comes up only after investigators prod Dassey to describe what happened to (the victim's) head."

So he was indicted and convicted. It was upheld in state court, then moved to federal courts where it was reversed. Now the entire appeals court decides the confession was legitimate and upholds a life sentence. Even the majority opinion, written by Indiana moderate David Hamilton (President Obama's first judicial appointee, in 2009), concedes, "He was young. He was alone with the police. He was somewhat limited intellectually. The officers’ questioning included general assurances of leniency if he told the truth, and Dassey may have believed they promised more than they did."

In fact, his I.Q. was 83. And he plaintively asked if he be back at school by 1:29 because he had a project due for 6th period.

But in what could be part of law school class on the profound criminal justice issues, notably confessions, Hamilton says he looks guilty. Those who concur are law and order conservatives Frank Easterbrook, Michael Kanne and Diane Sykes, who was briefly a Milwaukee Journal reporter before heading into the law. She was considered by Trump for the Supreme Court vacancy he filled with Neil Gorsuch, and her-ex husband, Charlie Sykes, is a longtime conservative radio talk host (and Trump critic from the right).

The majority take prompts two rather astonishing dissents by one or more of three judges: Diane Wood (who was always on Obama's short list for the Supreme Court), Ann Williams (a Ronald Reagan appointee who was the first black female on the Chicago federal bench) and Ilana Rovner (a Reagan appointee and saint of a person who escaped the Nazis in her native Latvia as a child with her mother).

Here's Wood: "His confession was coerced, and thus it should not have been admitted into evidence. And even if we were to overlook the coercion, the confession is so riddled with input from the police that its use violates due process. Dassey will spend the rest of his life in prison because of the injustice this court has decided to leave unredressed. I respectfully dissent."

And Rovner: "He was young, of low intellect, manipulable, without a friendly adult, and faced repeated accusations, deception, fabricated evidence, implic‐ it and explicit promises of leniency, police officers disingenuously assuming the role of father figure, and assurances that it was not his fault...Even under our current, anachronistic under‐ standing of coercion, Dassey’s confession was so obviously and transparently coercively obtained that it is unreasonable to have found otherwise."

It's ironic—maybe more—that Richard Posner, who was generally conceded to be the most influential judge-academic of his generation and the most influential judge not on the Supreme Court, suddenly and surprisingly quit the Chicago appeals court in September at a still prolific 78. If he were around, odds are that he would have voted with the dissenters, made it 4-4 and thus affirmed the earlier reversal of Dassey's conviction.

But no. Dassey will remain in prison, it would appear, until he dies. So you've got time to download Making a Murderer. And, as you watch, be reminded of the strengths of journalism—but how even the most meticulously detailed conclusions can lead ultimately to exasperation, not satisfaction, and precious little attention.

MAKING A MURDERER CONTINUED: WILL BRENDAN DASSEY EVER RECEIVE JUSTICE? (OPINION)

By Michael C. Dorf, Newsweek 

December 15, 2017 

This article first appeared on Dorf on Law.

In 1970, the University of Chicago Law Review published an article titled Is Innocence Irrelevant? Collateral Attack on Criminal Judgments by federal appeals court judge Henry Friendly.

Judge Friendly was a judicial conservative in the small-c sense, non-ideological, committed to deciding cases narrowly, and an expert legal craftsman.

As a young lawyer, Chief Justice John Roberts clerked for Friendly during Friendly's later years, and Roberts is fond of quoting (though not always abiding by) Friendly's aphorism that if it is not necessary to decide an issue to decide a case, it is necessary not to decide the issue.

Is Innocence Irrelevant? Was somewhat uncharacteristic of Friendly in that it offered a controversial policy proposal on a politically contentious issue.

Writing in a period of transition from the Warren Court to the Burger Court, Friendly lamented that federal habeas corpus petitions by prisoners sentenced under state law were too often succeeding based on procedural irregularities that had no connection to innocence.

To use the more nakedly political argot, federal courts were letting guilty state prisoners off on technicalities.

Quoting Justice Hugo Black's dissent in a then-recently-decided case, Judge Friendly offered what he regarded—and what many still regard—as a self-evidently sensible proposition: "The defendant's guilt or innocence is at least one of the vital considerations in determining whether collateral relief should be available to a convicted defendant."

The ensuing nearly five decades have proven Judge Friendly prophetic—but probably not in a way that he would have approved.

In 1976, the Supreme Court held that habeas corpus would not be available at all for petitioners claiming that otherwise-reliable evidence obtained in violation of the Fourth Amendment was used to convict them.

The next year, the Court would make it considerably harder for petitioners who had failed to raise their objections in compliance with state court rules to obtain relief in federal court on otherwise meritorious claims.

Other judicial narrowings followed and then, in 1996, Congress passed and President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which further limited habeas corpus.

The Court decisions and AEDPA have made it much more difficult for prisoners without plausible constitutional claims that bear on innocence to obtain relief via habeas corpus.

To my mind, that is understandable if not ideal: understandable because innocents serving prison sentences or awaiting execution suffer a much graver injustice than guilty parties whose proceedings were tainted by constitutional error; not ideal because habeas review once served, but no longer serves, as a means of ensuring that state court judges under political pressure to be tough on crime give full effect to the constitutional rights of criminal defendants.

But even if one thinks that Congress and the courts were right to cut back on habeas in cases where prisoners raise claims that speak only to the fairness of the proceedings, not to guilt or innocence, there is cause for alarm.

Modern habeas law honors only half of Judge Friendly's agenda. It makes the bringing of habeas petitions by guilty defendants considerably harder than in the Warren Court era.

But it also makes it extremely difficult for the innocent to obtain habeas relief. That proposition was on full display late last week in an en banc ruling by the US Court of Appeals for the Seventh Circuit.

Spoiler Alert: I will now discuss a case that figures in the Netflix documentary series Making a Murderer. If you intend to watch it but have not yet done so, you might want to bookmark the column and come back here after viewing.

For those readers who did not (and do not intend to) watch or have forgotten the basic story of Making a Murderer, it goes like this:

(1) From 1985 to 2003, Steven Avery of Manitowoc County, Wisconsin, served a prison sentence for a sexual assault he did not commit;

(2) after he was exonerated, Avery sued the county and various police officials who were, the documentary indicates, at least grossly negligent in the handling of his case;

(3) while the civil suit was pending, Avery was arrested for the murder of photographer Teresa Halbach;

(4) the case against Avery was largely circumstantial, including evidence that appeared to result from police tampering and other improper procedure;

(5) that said, the police sometimes try to frame guilty people, and I came away from Making a Murderer thinking that Avery might be guilty of murdering Halbach, even if the evidence was thin;

(6) the thinnest evidence was the confession of Avery's nephew Brendan Dassey, who is close to intellectually disabled, who was interviewed by police in an extremely suggestive manner, and who told a story that was internally inconsistent and did not match the physical evidence on key points;

(7) if the conviction of Avery appears dubious—I think the jury ought to have found reasonable doubt, but at least he might be guilty—the conviction of Dassey as an accomplice in the murder seems like a grave injustice, because Dassey is very likely innocent.

Much of the Dassey-focused portion of Making a Murderer illustrates how Dassey's first lawyer did a terrible job. The lawyer seems to have concluded that Dassey was guilty without even meeting with him and without ever considering the possibility that he might be innocent, gave damning statements to the press, and hired a private investigator who was more or less working for the police.

However, the key evidence against Dassey was the video of an interview before his ineffective lawyer began representing him.

On the basis of Dassey's recorded confession, the jury convicted him of murder, and his state court appeals failed.

Despite the very high burden, Dassey obtained habeas relief from a federal district judge, who concluded that the confession was involuntary. A panel of the Seventh Circuit affirmed, but last week the en banc Seventh Circuit reversed by a vote of 4-3.

There is a difference between a documentary film and a full trial record, so I read the majority opinion with an open mind, expecting to learn that Making a Murderer had perhaps left out key details of the case against Dassey.

To my surprise, I found none. Indeed, to the contrary, Judge Hamilton's opinion for the court dutifully recites the inconsistencies in Dassey's story, his seeming not to realize the nature of the interrogation (indicating he was eager most of all to get back to class even after he had confessed to a murder), the language used by the officers to indicate that if only Dassey told them what they wanted to hear he would be free, and . . . nothing else.

Although the written account in the en banc opinion lacks the full drama of Making a Murderer, like the documentary, the opinion paints a picture of the events that strongly suggests that Dassey is innocent.

So why does the majority allow to stand a conviction based on a confession that is at best of questionable reliability when there is no other real evidence tying Dassey to the crime?

Because Dassey's likely innocence is, in a word, irrelevant.

Unlike the Fourth Amendment, which protects values like privacy and property, which are not linked to a defendant's guilt or innocence of the crime for which he is accused, the Fifth Amendment right against a coerced confession is linked to guilt or innocence.

That's one reason why, in a 1993 case, the Supreme Court refused to extend the no-Fourth-Amendment-exclusionary-rule-claims-on-habeas rule to habeas petitions based on a claimed Miranda violation.

The Miranda warnings serve to mitigate the inherent coerciveness of custodial interrogation with the aim of preventing coerced confessions, and coerced confessions are unreliable evidence.

Strong evidence of guilt might be obtained in violation of the Fourth Amendment, but evidence obtained via a coerced confession is not strong evidence of guilt because the coercion, rather than the suspect's conscience, will have been the basis for the confession.

Yet even though petitioners can bring Fifth Amendment claims on habeas, the restrictive rules that were adopted by the Court beginning in the early 1970s and then tightened further by Congress in AEDPA make it difficult to prevail on Fifth Amendment claims, just as they make it difficult to prevail on more "technical" claims that do not correlate with guilt or innocence.

The Court and Congress heeded Judge Friendly's call to make habeas relief much more difficult for guilty prisoners to obtain, but in so doing they threw the baby out with the bathwater by also making habeas relief much more difficult for innocent prisoners to obtain.

Thus, Judge Hamilton's en banc opinion notes that AEDPA sets a high standard for relief and that Dassey hasn't met that standard. End of story.

Is that right? Not necessarily. Here's how Judge Wood begins her dissent:

Psychological coercion, questions to which the police furnished the answers, and ghoulish games of ”20 Questions,” in which Brendan Dassey guessed over and over again before he landed on the “correct” story (i.e., the one the police wanted), led to the “confession” that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts.

Turning a blind eye to these glaring faults, the en banc majority has decided to deny Dassey’s petition for a writ of habeas corpus. They justify this travesty of justice as something compelled by AEDPA.

If the writ, as limited by AEDPA, were nothing more than a dead letter, perhaps they would be correct. But it is not. Instead, as the Supreme Court wrote in Harrington v. Richter, “the writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” 

It is, the Court went on to say, “a guard against extreme malfunctions in the state criminal justice systems.”

As the district court and the panel majority recognized, we have before us just such an extreme malfunction. Dassey at the relevant time was 16 years old and had an IQ in the low 80s. His confession was coerced, and thus it should not have been admitted into evidence.

And even if we were to overlook the coercion, the confession is so riddled with input from the police that its use violates due process.

Dassey will spend the rest of his life in prison because of the injustice this court has decided to leave unredressed. I respectfully dissent.

Kudos to Judge Wood for trying to make lemonade from a lemon, in particular Harrington v. Richter , in which the rhetoric she quotes begins an opinion that goes on to deny relief to the habeas petitioner.

Kudos as well for strongly suggesting--even without exactly saying--that Dassey should be granted relief because he is probably innocent. Judge Wood only just barely failed.

The case was 4-3, after all. But Dassey would have had a better chance of obtaining habeas relief if the full Friendly program had been implemented and innocence were made an explicit basis for placing a thumb, or better yet, an entire arm, on the scale in favor of relief.

Is this the end of the habeas road for Dassey?

Technically not. He could file a cert petition with the Supreme Court, but his prospects there are doubtful. Ex ante, one would have predicted a better chance of success before the Seventh Circuit.

Moreover, Dassey's case is mostly about the application of law to facts and evidence, and thus not obviously cert-worthy on any issue of larger importance.

Sure, it presents the larger question whether, as Friendly asked, innocence is irrelevant, but the Supreme Court doesn't seem much interested in that question.

There remains the desperate possibility that Dassey could obtain federal habeas relief by filing an "actual innocence" claim. The Supreme Court suggested the possibility of such a claim in Herrera v. Collins in 1993, but it is not clear that actual innocence is a basis for relief from a sentence of life imprisonment rather than only from a death sentence.

And even if so, the Court has set an almost impossibly high standard for relief based on actual innocence.

In the one case in which a habeas petitioner obtained any relief from the SCOTUS on a Herrera claim, the Court said his lawyers needed to go back to the district court and produce "evidence that could not have been obtained at the time of trial [that] clearly establishes petitioner’s innocence."

That petitioner, Troy Davis, was subsequently found not to have produced such evidence and was executed.

Dassey could not, in any event, take advantage of the Herrera/Davis opening, even if it were broader than a pinhole, because he is not adducing new evidence.

Dassey's lawyers claim that the evidence that was adduced at trial should not have been deemed adequate to convict him because his confession was coerced and thus unreliable.

All that is left for Dassey, it seems, is the hope that lightning strikes twice--that once again someone wholly unconnected to Steven Avery is shown to have committed the crime for which Avery (and this time Dassey as well) was convicted.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

Homicide detective’s book describes ‘How the Police GenerateFalse Confessions’

By Tom Jackman, Washington Post 

October 20, 2016

James L. Trainum, retired Washington, D.C., homicide detective and author of the book “How the Police Generate False Confessions.

“If you plan on being arrested for a felony, you must read this book.”— Tom Jackman, The Washington Post 

Also, if you have an interest in fairness, justice and preventing wrongful convictions, then the new book “How the Police Generate False Confessions,” by former Washington, D.C., homicide detective James Trainum is an important read. It takes you inside the interrogation room to see how investigators extract admissions from innocent people, and how the justice system can fix this persistent problem, seen in high profile cases such as the Central Park Five, the Norfolk Four and the teenaged suspect from Wisconsin in the Netflix series “Making a Murderer.”

It’s a phenomenon that remains, understandably, incomprehensible to many. Someone “admits” to a crime they did not actually commit, to a police detective of all people, knowing they face a long prison sentence for doing so. Who would do such a thing? In all three of the cases above, young men admitted to committing rape, and in two of them to gruesome murders.

Trainum, 61, spent 17 years in homicide for the Metropolitan Police Department, retiring in 2010. He was the lead detective on the high-profile Starbucks triple murder in Georgetown in 1997, which he eventually helped solve in 1999. But in 1994, Trainum had an eye-opening experience when he obtained his own false confession. After a 16-hour interrogation, a woman told him she and two men had killed a man whose body was found, bound and beaten, near the Anacostia River. She was charged with first-degree murder. But she recanted weeks later, and Trainum found proof that she couldn’t have been where she originally claimed at the time of the slaying. The charges were dismissed.

“What did I do,” Trainum asked himself, “to convince this person to tell me something she didn’t do? How did she get all those details she shouldn’t have known?” He realized that implying that her cooperation would get her better treatment from the prosecutors, and minimizing her role in the case to obtain her testimony against co-defendants, as well as a mistaken handwriting analysis and a bogus “voice stress test,” got her to confess.

Trainum began researching the concept of false confessions, not widely discussed in the 1990s. At that time, five New York teenagers were in prison for allegedly raping a woman in Central Park in 1989. Though DNA later proved an unrelated man had committed the crime, some people still believe the Central Park Five are guilty, including presidential candidate Donald Trump. “It just shows you what the power of a confession is,” Trainum said. “In spite of the overwhelming evidence, physical and otherwise, people still believe a confession trumps everything. No pun intended.”

False confessions are now understood to be a significant contribution to wrongful convictions. According to the National Registry of Exonerations, of 1,900 wrongful convictions in their data base, 234 were caused by false confessions, or about 12 percent.

Trainum said detectives are just following their training, which is often minimal, and which allows for not only unethical tactics but lying by investigators, who can falsely tell a suspect they failed a polygraph, that other people identified him as a suspect and that evidence indicates he committed the crime. Trainum summarizes the approach that most detectives take to a suspect in “the box”:

1. Conclude that the suspect is guilty

2. Tell them that there is no doubt of their guilt

3. Block any attempt by the suspect to deny the accusation

4. Suggest psychological or moral justifications for what they did

5. Lie about the strength of the evidence that points to the suspect’s guilt

6. Offer only two explanations for why he committed the crime. Both are admissions, but one is definitely less savory than the other

7. Get them to agree with you that they did it

8. Have them provide details about the crime

Now Trainum repeatedly acknowledges that police often elicit confessions from actually guilty people, sometimes after long or difficult sessions. But he said everyone in the system — detectives, defense attorneys, prosecutors and judges — must be aware of the possibility of false confessions, and be certain to do the legwork which corroborates or disproves such statements. 

In 1995, Washington, D.C., homicide detective Jim Trainum was shown using the latest technology, and a new crime data base, to solve cases. (Robert Reeder/The Washington Post)

Trainum writes that suspects often make false confessions because they make a bad cost-benefit analysis. They think that confessing will allow them to go home, or allow them to face lesser charges, or protect other people. In “Making a Murderer,” 16-year-old Brendan Dassey confesses to murder and then asks if he can return to class at his high school. That confession and others were later used against him at trial and he was convicted, though in August of this year the case was overturned after a federal judge ruled the confessions were coerced and involuntary. “Thank God for videotape,” Trainum said of the confession. “Those detectives were not seeking the truth. They’re seeking a confession.”

But Dassey’s multiple confessions, including one in which the detectives tell him how the victim was killed after he repeatedly provides the wrong causes, had held up through trial and appeals court rulings for years. “One of the biggest problems,” Trainum said, “is the judges don’t worry about reliability [of a confession]. They say it’s up to the jury to decide that. They only worry about if it is admissible. There’s kind of a movement to shift the reliability back to the judges.” He noted that judges will hold hearings on the reliability of eyewitnesses or the reliability of jailhouse informants. “They don’t do that with confession evidence. And they really should. Once a confession gets in front of a jury, the defense attorney has an uphill battle. The jurors think, ‘I would never confess to something I didn’t do.'”

The National Registry of Exonerations shows that 15 percent of wrongful convictions occurred with guilty pleas. That was the case with Danial Williams and Joseph Dick, two sailors in the Norfolk Four who falsely confessed and pleaded guilty in the rape and murder of a woman in Norfolk in 1997. Another man’s DNA later linked him to the crime and he said he committed it alone. Williams’ and Dick’s sentences were commuted but not fully pardoned by then-Gov. Tim Kaine (now a vice presidential candidate) in 2009, and in an appeal to have their convictions vacated, U.S. District Court Judge John A. Gibney Jr. ruled last month that, “By any measure, the evidence shows the defendants’ innocence…Stated more simply, no sane human being could find them guilty.”

So what to do about false confessions? Trainum has many suggestions, starting with police videotaping all interrogations. Many departments still don’t do it. “Law enforcement doesn’t want you in that interrogation room,” Trainum said. “They don’t want you to see what they’re doing, because some of the stuff they know is not appropriate.”

But the ex-detective also advocates adopting the British method of investigation, in which the questioning is not adversarial and is instead focused on eliciting the truth, as opposed to only a confession. It is known as P.E.A.C.E., for preparation, engagement, accounting, closure and evaluation. It was imposed on British police after a spate of false confessions, and Trainum said it can be used just as effectively as the current American method.

The P.E.A.C.E. model is only starting to make inroads in the U.S., and it would require extensive training and money. He thinks the skill of interviewing is undervalued. “People think talking to people is a natural thing,” Trainum said. “It’s not. That’s why psychiatrists undergo so many years of training. You have to be able to build a rapport without threats or promises. Cops make the worst private investigators. We have too many bad habits.”

Trainum, now a consultant for the Innocence Project, the National Center for Missing and Exploited Children and various defense lawyers, has not exactly been embraced by his former colleagues, who began calling him “Benedict Trainum” when he was still on the force. He said he is shunned by some older cops, but younger ones are more open to his ideas.

“I hope law enforcement reads my book,” Trainum said. “With my consulting business, I want to be put out of business. I would rather they make good cases that I can’t touch.”

I asked Brandon Garrett, a University of Virginia law professor who has focused on wrongful convictions, about Trainum’s book. “It is such an important new book,” Garrett said. “For decades, we have seen false confession after false confession lead to tragic wrongful convictions of the innocent while serious criminals go undetected.  The courts have done little to respond to abuses in the interrogation room; if anything they have eroded constitutional protections, such as the right to remain silent.  Trainum explains that for police, there is another way.  Overly coercive interrogation techniques not only produce false confessions but they are not good at uncovering good information.  In the U.K. and in more agencies in the U.S., police have changed gears, turning from psychologically coercive techniques to information gathering techniques.  Trainum and his book are at the forefront of a revolution in police interrogations.”

Now that’s a lot better book review quote than mine.

UPDATE DECEMBER 8, 2017

On August 12, 2016, Brendan Dassey's 2007 conviction was overturned by federal judge William E. Duffin. The State of Wisconsin appealed the decision. In June 2017, a three-judge panel for the U.S. Court of Appeals agreed 2-to-1 with Duffin's 2016 ruling. The State of Wisconsin appealed the decision. On December 8, 2017, the full seven-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled by a vote of 4-to-3 that Brendan's confession had not been coerced by police investigators, reversing the panel's decision.

“The state courts’ finding that Dassey’s confession was voluntary was not beyond fair debate, but we conclude it was reasonable. We reverse the grant of Dassey’s petition for a writ of habeas corpus,” Judge Hamilton wrote for the majority.

Hamilton said that Dassey was not subjected to threats or intimidation and investigators stayed calming while interviewing him.

Wood slammed the majority’s decision as “a profound miscarriage of justice.”

“Psychological coercion, questions to which the police furnished the answers, and ghoulish games of ‘20 Questions,’ in which Brendan Dassey guessed over and over again before he landed on the ‘correct’ story (i.e., the one the police wanted), led to the ‘confession’ that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts,” Wood wrote. (Parentheses in original.)

The Seventh Circuit’s chief judge said Dassey’s confession was clearly coerced and should not have been admitted into evidence.

“Dassey will spend the rest of his life in prison because of the injustice this court has decided to leave unredressed,” Wood wrote. [Source]

END UPDATE

WBAY
June 23, 2017

Attorneys for "Making A Murderer" subject Brendan Dassey have filed a motion asking for their client's immediate release from prison.

The motion was filed Friday with the United States Court of Appeals for the Seventh Circuit, one day after a three-judge panel upheld a lower court's ruling overturning Dassey's conviction for the 2005 murder of Teresa Halbach in Manitowoc County.

In the motion, attorneys Laura Nirider and Steve Drizin ask the court to lift a stay that's blocking Dassey's release from prison.

"Mr. Dassey, now twenty-seven years old, has been held in custody since March 31, 2006 - since he was sixteen years old - for a conviction, based almost entirely on an involuntary confession, that has been overturned," reads the motion.

Judge William Duffin, who initially overturned Dassey's conviction and ordered his release from prison, issued the stay on request from the Wisconsin Department of Justice to allow the agency time to appeal.

On Thursday, the appeals court released a 2-1 decision siding with Dassey that his confession to helping his uncle Steven Avery rape and kill Halbach on Halloween 2005 was coerced by Manitowoc County investigators.

Nirider and Drizin request that Dassey be released on bond.

"There is no longer any reason to further stay the district court's order releasing Mr. Dassey," reads the motion.

Click here to read the motion filed by Dassey's attorneys.

The order asks the state to file a response by 5 p.m. on June 26. Once it has heard from both sides, the court will make a decision on Dassey's release. It could happen as early as next week.

The Wisconsin Department of Justice has up to three months to decide whether to re-try Dassey for Halbach's murder. The state also has the option of asking the full 7th Circuit Court to review the case, or taking it to the U.S. Supreme Court.

"We anticipate seeking review by the entire 7th Circuit or the United States Supreme Court and hope that today’s erroneous decision will be reversed. We continue to send our condolences to the Halbach family as they have to suffer through another attempt by Mr. Dassey to re-litigate his guilty verdict and sentence," reads a statement provided by the DOJ.

Two federal courts have now ruled that Dassey's confession to Halbach's murder was involuntary, differing from decisions in the state courts.

The federal appeals court's majority opinion states that Dassey's intellectual limitations and suggestibility must be taken into account, and the investigators gave him false promises of leniency.

"Dassey's interview could be viewed in a psychology class as a perfect example of operant conditioning," reads the majority opinion.

"In sum, the investigators promised Dassey freedom and alliance if he told the truth and all signs suggest that Dassey took that promise literally. The pattern of questions demonstrates that the message the investigators conveyed is that the 'truth' was what they wanted to hear."

Click here to view the 128-page opinion from the federal court of appeals.

Steven Avery's attorney visited her client Friday at Waupun Correctional Institution. Kathleen Zellner tells Action 2 News that Avery is optimistic about his own case.

"He's extremely optimistic because when someone's innocent, and I've done this many times, they always are optimistic. I think he feels we have the evidence now to vacate the conviction. which we will do, and so he's very optimistic," Zellner said.

Zellner has filed a post-conviction motion arguing Avery should be granted a new trial based on five arguments, including ineffective defense counsel, ethical violations by the prosecutor, and new evidence. Zellner's motion breaks down new scientific testing she had completed on evidence on the theory Avery's DNA was planted.

Click here to view our exclusive interview with Kathleen Zellner.

Error in article above as noted by MnAtty at reddit:

WBAY wrote that (back in November) “Judge William Duffin, who initially overturned Dassey's conviction and ordered his release from prison, issued the stay on request from the Wisconsin Department of Justice to allow the agency time to appeal. WRONG. Judge Duffin DENIED this motion, stating it “largely reargues the same points already considered and rejected by the court in deciding Dassey's motion for release.” The WDOJ then filed an emergency motion with the Federal Appeals Court in Chicago, where their motion to stay was granted. WBAY really garbles these court rulings. Gotta watch out for that. 

ORIGINAL POST FROM NOVEMBER 14, 2016

Federal Judge Orders Supervised Release of Brendan Dassey; Appeals Court Grants Stay of Release as Case Continues


Federal Judge Willima E. Duffin has ordered the state of Wisconsin to release Brendan Dassey on bond. "It is therefore ordered that Dassey's motion for release...is granted," part of the ruling released November 14, 2016 reads.

On August 12th, Duffin had overturned Dassey's conviction and had granted Dassey a writ of habeas corpus. Duffin had ordered Dassey to be released within 90 days unless the state filed an appeal.

On September 9th, the state of Wisconsin appealed the decision.

On September 14th, Dassey's lawyers asked for him to be released on bond while the state's appeal is pending. Dassey's conviction could be reinstated by the state either winning that appeal or taking the case to a full retrial. [Video]

On November 14th, 90 days after he granted Dassey's habeas corpus petition, Duffin wrote that there was a presumption that "successful habeas petitioners are released while the respondent appeals that decision." He wrote that "the respondent [the Wisconsin Attorney General's Office] has failed to rebut that presumption" and that "the court does not find that the respondent has a strong likelihood of success on appeal." He also wrote that "the court finds it must grant Dassey's petition and order him released from the custody of the respondent."

State Attorney General Brad Schimel quickly moved to block the release.  

On November 15th, his office filed an emergency motion asking a federal appeals court to stay the release order. In its court filings, Schimel and Assistant Attorney General Jacob Wittwer wrote that regardless of any legal challenges to Dassey's confession "the record does not support a claim that Dassey is actually innocent... Dassey's release should be regarded as a serious public safety issue... the public interest favors continued custody in these circumstances, regardless of Dassey's recent conduct in a controlled prison setting."

On November 16th, Judge Duffin denied the state's motion to halt release of Brendan Dassey. Duffin said the state largely "reargued the same points already considered and rejected by the court." Duffin said the U.S. Probation Office has "informed the court it has approved the proposed residence of Brendan Dassey." Duffin said Brendan must be released by Friday at 8 p.m.

On November 17th, the Seventh Circuit Court of Appeals granted the state's appeal to stay Brendan's release on bond, pending resolution of the underlying appeal, which is the state's appeal against Judge Duffin's habeas ruling overturning Brendan's conviction. In other words, Brendan Dassey must stay in prison until the state's appeal against Duffin's habeas ruling is resolved.

Seventh Circuit just denied Brendan Dassey's release pending appeal outcome. Never easy.#MakingAMurderer

— Kathleen Zellner (@ZellnerLaw) November 17, 2016

Here's 7thCir order delaying Brendan's release. No reasoning stated. Disappointing, but no effect on ultimate appeal https://t.co/A5cig1xwY3

— Jerome Buting (@JButing) November 17, 2016

Dassey had until noon Tuesday, November 15th, to notify the probation office of his intended residential address. Federal probation officers, in turn, were asked to inspect the dwelling to determine if it is a suitable place for Dassey to stay.

In the motion seeking his supervised release while the appeal is pending, Dassey’s attorneys laid out a plan for him:

• Dassey would spend the first one to three months living with his mother in a trailer the family owns in rural northeast Wisconsin, about 100 miles from Manitowoc.
• He would then move to an apartment in Brown County that his mother and stepfather would pay for initially. There, he would work on education, job skills and therapy as appropriate. 

He could also live at home in Manitowoc if the judge preferred, his attorneys wrote.

The district court judge outlined several conditions for Dassey's release, including that he can only travel in the court's Eastern District of Wisconsin, not obtain a passport, not possess a gun or any other weapons, or possess any controlled substances. Dassey also has been ordered not to have any contact with Steven Avery or with the family of Teresa Halbach.

From the order by WILLIAM E. DUFFIN, U.S. Magistrate Judge, Milwaukee, Wisconsin, this 14th day of November, 2016:

"Dassey's family is concentrated in northeastern Wisconsin. There is no indication that he has the inclination much less the means to flee or will otherwise fail to appear as may be legally required. Moreover, Dassey has a strong interest not to flee ... Dassey has offered a detailed release plan that was prepared with the assistance of a clinical social worker with experience in similar cases. That social worker would remain involved in assisting Dassey as he adjusts to freedom following his decade in prison."

From the order by WILLIAM E. DUFFIN, U.S. Magistrate Judge, Milwaukee, Wisconsin, this 14th day of November, 2016:

"IT IS THEREFORE ORDERED THAT DASSEY'S MOTION FOR RELEASE pursuant to Fed. R. App. P. 23(c) (ECF No. 29) IS GRANTED ... The court will then issue a further order directing the respondent to release the petitioner."

From the order by WILLIAM E. DUFFIN, U.S. Magistrate Judge, Milwaukee, Wisconsin, this 14th day of November, 2016:

"The respondent asserts 'that irreparable harm occurs to … the victim’s family whenever a person convicted by a state court of the gravest of criminal offenses is released before completing his sentence.' The respondent does not further develop this assertion. Nonetheless, the court was, and is, ever mindful of how its decisions inevitably impact Teresa Halbach’s family and friends. This court, like every court, wishes it could decide cases in a manner that minimized harm to these innocents. However, a court’s obligation to decide cases in accordance with controlling law often prevents that. The court granted Dassey’s petition and ordered that he be released or retried. There is a presumption that successful habeas petitioners are released while the respondent [the Wisconsin Attorney General's Office] appeals that decision. The respondent has failed to rebut that presumption. The court does not find that the respondent has a strong likelihood of success on appeal. Moreover, the respondent has failed to show that the second and fourth factors."

From the order by WILLIAM E. DUFFIN, U.S. Magistrate Judge, Milwaukee, Wisconsin, this 14th day of November, 2016:

"Presumably, if the state had other admissible, compelling evidence of Dassey’s guilt, it would have presented it at trial or in opposition to Dassey’s motion for release. In the absence of any argument from the respondent [the Wisconsin Attorney General's Office] on this point, the court must conclude that without Dassey’s March 1, 2006 confession, retrial, re-conviction and re-incarceration are unlikely."

From the order by WILLIAM E. DUFFIN, U.S. Magistrate Judge, Milwaukee, Wisconsin, this 14th day of November, 2016:

"Dassey has no criminal record other than this case. His prison disciplinary record is exceedingly benign. On one occasion he was given several packets of ramen noodles from another inmate without permission from prison authorities. On one other occasion he was found to have violated prison regulations by having items with tape on them and having used prison forms to keep scores in games. There is no hint of violent or antisocial behavior from his time in prison. In fact, in an offender performance evaluation, Dassey received a near perfect score. He was characterized as always working in a cooperative manner with staff and other offenders, following directions, completing assignments, and performing with minimal supervision. In short, the respondent [the Wisconsin Attorney General's Office] has failed to demonstrate that Dassey represents a present danger to the community."

Read the Court's Full Order at Any of the Following Links:

• http://mediaassets.tmj4.com/document/2016/11/14/20161114130525497_49739660_ver1.0.pdf
• http://www.stevenaverycase.org/wp-content/uploads/2016/11/ORDER-Granting-Motion-for-Release-on-Recognizance.pdf
• https://drive.google.com/open?id=0B-APlJawt-6ROXJ0dlNHMUMtN0U

State of Wisconsin so embarrassed they will fight to bitter end. They will lose. Brendan and Justice will prevail https://t.co/kOLZQNGF2t

— Jerome Buting (@JButing) November 14, 2016

Dassey granted supervised release; AG to seek stay
By Courtney Ryan, FOX 11 News
November 14, 2016

A federal judge has ordered Brendan Dassey be granted supervised release from prison.

Federal Judge William Duffin, who previously overturned Dassey's conviction for the 2005 murder of Teresa Halbach, now says he should be released from prison while the state appeals the overturning. The judge ruled in August that investigators tricked Dassey into confessing he helped his uncle, Steven Avery, rape, kill and mutilate photographer Teresa Halbach in 2005. The state has appealed that ruling.

A statement was posted by Dassey's attorney, Laura Nirider, Monday:

"Today, the District Court granted Brendan Dassey’s motion for release on bond. We are in the process of making arrangements for his release and hope that Brendan will be reunited with his family by Thanksgiving, if not sooner. We urge everyone to respect Brendan’s privacy during this time of transition.

"As we give thanks this holiday season for family and friends, our food will taste all the sweeter because we know that for the first time in ten years, Brendan will be celebrating in freedom with his family, too."

Wisconsin Attorney General Brad Schimel issued a statement saying he would file an emergency motion in the 7th U.S. Circuit Court of Appeals to put the release order on hold.

Dassey's attorney Steven Drizin acknowledged the news on Twitter:

"It's true.  Judge Duffin granted Brendan's bond motion! More later. Someone from MAM nation will download order.  I'm unable to for hours."

Drizin said he had not spoken yet with Dassey, but he hoped to have him out of prison in time to spend Thanksgiving with his family.

"That's what I'm focused on right now, getting him home, getting him with his family and then helping him to re-integrate back into society while his appeal plays out," Drizin said.

Dassey's brother Brad shared his reaction with FOX 11's Andrew LaCombe.

Here's what Brad Dassey messaged me on Facebook about his half-brother being granted supervised release pending appeal @fox11news pic.twitter.com/86AyEuRmTc

— Andrew LaCombe (@andrewlacombe) November 14, 2016

The release from prison is not immediate, however, and comes with multiple conditions. Any violation would result in his being returned to custody.

Among the conditions:

• Dassey shall not violate any federal, state, or local law.
• Dassey must appear in court as required and surrender to serve any sentence, as ordered by a court.
• Dassey shall comply with any applicable law regarding sex offender registration.
• Dassey shall be supervised by the United States Probation Office. He shall report as it directs.
• Dassey shall cooperate with the United States Probation Office including being available for any home visit it deems necessary.

He has to provide the federal probation and parole office the address of his intended residence by noon Tuesday.

It is unclear from the judge's order how long it would take for the government to approve that location, or how long until he would be released.

Drizin would not say where Dassey plans to live.

Dassey is currently at the Columbia Correctional Institution in Portage.

Dassey and his uncle Steven Avery were convicted in separate trials in 2007 for their roles in the Halbach murder. Both were sentenced to life in prison. Their case received national attention beginning late last year with the release of the Netflix series "Making a Murderer."

Dassey was 16 when Halbach died. He's now 27.

Duffin ruled in August that investigators made specific promises of leniency to Dassey and that no "fair-minded jurists could disagree." He cited one investigator's comment early in the interview that "you don't have to worry about things," plus repeated comments like "it's OK" and that they already knew what happened.

Schimel, in his appeal, said investigators didn't promise leniency and they specifically told Dassey that no promises could be made.

Halbach was killed on Halloween 2005, after she visited the Avery family's salvage yard in Manitowoc County. Investigators allege Avery lured her there by asking her to take photos of a minivan. Dassey was sentenced to life in prison in 2007. Court documents describe him as a slow learner who had poor grades and has difficulty understanding language and speaking.


Brendan Dassey with his father Peter Dassey and half-brother Brad Dassey