The Curious Case of Brendan Dassey

Alexander G. Thrasher

Wesley M. Walker

The curious case of Brenden Dassey which captured viewers’ attention in the hit Netflix series Making a Murderer, took yet another turn in August when U.S. Magistrate Judge William Duffin granted Dassey’s petition for writ of habeas corpus and ordered his release from a Wisconsin prison.  The State of Wisconsin appealed to the U.S. Court of Appeals for the Seventh Circuit and filed an emergency motion to stay Dassey’s release only days before he was to be set free in November.  The Court of Appeals granted the motion the following day.  As a result, after years of incarceration, and only a fleeting moment of hope that he may be released, Dassey remains incarcerated while the highly dramatized case continues to unfold in the federal courts.  Owing at least in part to the media attention the case has received, there is substantial pressure on the attorneys and the court to ensure that this latest appeal is argued and adjudicated by the most exacting standards.

In a brief filed with the Court of Appeals on October 19, 2016, the State of Wisconsin advanced numerous arguments attacking claims that Dassey’s confession was coerced and involuntary.  First, the State argued that the confession “easily withstands [the Antiterrorism and Effective Death Penalty Act’s] ‘stringent standard of review.”[1]  For support, the State drew on Colorado v. Connelly and Schneckloth v. Bustamonte to argue that “[c]onfessions are only involuntary in extreme cases, where ‘coercive police activity’[2] is so serious that the ‘defendant’s will was overborne.’”[3]  Noting that coercion can be mental as well as physical, the State also drew on other Seventh Circuit precedent to argue that it must be severe, rising to the level of “psychological intimidation”[4] or “outright fraud,”[5] and that “[p]olice efforts ‘to pressure and cajole, conceal material facts, and actively mislead’ are generally insufficient to meet this demanding standard.”[6]  Furthermore, while the State acknowledged that juvenile confessions do require special care, it contended that the same principles applied as with adult confessions, and that the Seventh Circuit has been “particularly loath to invalidate juvenile confessions on AEDPA review. . . .”[7]

Second, the State argued that the Wisconsin Court of Appeals’ holding that the “confession was voluntary falls squarely within the range of reasonableness permitted by AEDPA.”[8]  The State pointed to the fact that Dassey willingly spoke to investigators, was read his Miranda rights, and that the interview took place during the day while he sat on a couch and drank a beverage.[9]  Additionally, the interrogating officers spoke in normal tones and did not threaten Dassey or make false promises to him.[10]  Combined with the fact that Dassey did not resist providing details after admitting to participating in the rape and murder of Teresa Halbach are evidence, the State argued that Dassey’s will was not overborne.[11]

Third, the State argues that the “district court’s two reasons for not affording AEDPA deference to the state court are wrong.”[12]  Essentially, the State contended that statements that investigators already knew what Dassey did are the “least likely [type of lie] to render a confession involuntary,”[13] and that investigators’ statements that cooperating with their questioning would be beneficial to Dassey are “far from threatening or coercive.”[14]  Perhaps most importantly, however, the State argued that the district court improperly assumed that the state court did not ‘“t[ake] into account all of the relevant facts.”[15]

Fourth, the State emphasized that the Seventh Circuit has routinely upheld confessions as voluntary when police used more pressure than Dassey faced, and therefore, even if the district court were correct in reviewing the case de novo, the confession was still valid.[16]  Finally, the State argued that Dassey’s claim that his pre-trial counsel was improperly conflicted under Sullivan[17]  is without merit, and again points to the fact that the Supreme Court has explained that “Sullivan is clearly established only for attorney conflicts arising from multiple representation of codefendants,” and that Dassey does not allege any multiple representation by his pre-trial counsel.[18]    Furthermore, even if this argument was available to Dassey, the state argued that it would fail under any standard of review as Dassey never identified any actual conflict or link between his pre-trial counsel’s actions and any detriment to him.[19]

Conversely, Dassey’s principal argument was that his confession was involuntary and that false promises of leniency made by the investigators to a “mentally-limited,” sixteen-year-old boy “prevented [him] from rationally weighing whether to confess by falsely guaranteeing a specific benefit—release without consequences—in exchange for his acquiescence to the interrogators’ leading questions.”[20]  According to Dassey, such is what he understood the deal he made to be, and is evident by the fact that he believed “he would return to school after confessing to murder and that his arrest would last only one day.”[21]  Additionally, the state court overlooked relevant facts by finding that no promises of leniency had been made, and therefore, by concluding that his statements were voluntary, the state court unreasonably applied federal law.[22]  Alternatively, Dassey renewed his ineffectiveness of counsel claims under Sullivan that his pre-trial counsel was conflict-ridden and helped secure his conviction.[23]

As it stands now, it is unclear how the Seventh Circuit Court of Appeals is likely to rule.  All that is certain is that Dassey remains incarcerated, and that the arguments in favor and against the admissibility of his confession continue to fuel this legal drama.  Despite the masses of people who claim to have solved the case by diligent study of Netflix’s Making a Murderer, it’s also evident that the truth of exactly what happened in Manitowoc County on Halloween in 2005 will remain as much a mystery today as it did more than a decade ago.


[1] Brief for Respondent-Appellant at 23, Dassey v. Dittman, No. 16-3397 (7th Cir. Oct. 19, 2016).

[2] Colorado v. Connelly, 479 U.S. 157, 167 (1986).

[3] Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

[4] United States v. Dillon, 150 F.3d 754, 757 (7th Cir. 1998).

[5] Hadley v. Williams, 368 F.3d 747, 749 (7th Cir. 2004).

[6] Brief for Respondent-Appellant at 24 (quoting United States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990).

[7] Id. (citing Etherly v. Davis, 619 F.3d 654, 661 (7th Cir. 2010).

[8] Id. at 24.

[9] Brief for Respondent-Appellant at 25.

[10] Id.

[11] Id.

[12] Id. at 25.

[13] Id. (citing United States v. Sturdivant, 796 F.3d 690, 697 (7th Cir. 2015) (internal quotations omitted)).

[14] Id. (citing Fare v. Michael C., 442 U.S. 707, 727 (1979) (internal quotations omitted)).

[15] Brief for Respondent-Appellant at 26 (citing Carter v. Thompson, 690 F.3d 837, 843-44 (7th Cir. 2012)).

[16] Id. at 26.

[17] Cuyler v. Sullivan, 446 U.S. 335 (1980).

[18] Brief for Respondent-Appellant at 26.

[19] Id. at 27.

[20] Brief for Petitioner-Appellee at 29-30, Dassey v. Dittman, No. 16-3397 (7th Cir. Dec. 6, 2016) (referencing Blackburn v. Alabama, 361 U.S. 199, 208 (1960) (holding “a voluntary confession is the product of “rational intellect and a free will”); United States v. Rutledge, 900 F.2d 1127, 1129 (7th Cir. 1990)).

[21] Id. at 30.

[22] Id.

[23] Id.

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