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