February 14, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. l:14-cv-01310 - William E. Duffin,
Rovner, Williams, and Hamilton, Circuit Judges.
ROVNER, Circuit Judge.
Halbach disappeared on Halloween Day, 2005. Her concerned
family and friends contacted law enforcement after she did
not show up at the photography studio where she worked and
her voice mailbox was full. Law enforcement officers quickly
zeroed in on the Avery Auto Salvage yard in Two Rivers,
Wisconsin, as the last place she was known to have gone, and,
in particular, on Steven Avery, the son of the salvage yard
owner who lived in a trailer on the property. Earlier in the
day, Avery called Auto Trader magazine, for whom Halbach
sometimes took photographs, to request that she take
photographs of a minivan that he wished to sell in its
magazine. Eventually the police began to suspect that
Avery's 16-year-old nephew, Brendan Dassey, who also
lived on the property, might have been a witness or had
information about Halbach's murder. After a few
preliminary conversations, the investigators were concerned
enough to call Dassey into the police station for a full
interrogation. After many hours of questioning and
interrogation spread over several days, Dassey confessed that
he, along with Avery, had raped and brutally murdered Halbach
and then burned her body in an on-site fire pit. By the time
of the trial, Dassey had recanted his confession, and the
State had failed to find any physical evidence linking him to
the crime, but he was convicted and sentenced to life in
prison nonetheless. After appeals and post-conviction
proceedings in the state court failed to bring him relief.
The state court on post-conviction review stated the
generalized standard for evaluating the voluntariness of a
confession-totality of the circumstances-but failed to note
how that juvenile confession requires more care and failed to
apply the standard at all. Dassey filed a petition for a writ
of habeas corpus in the district court, claiming that he did
not receive effective assistance of counsel and that his
confession was not voluntarily given. The district court,
concluding as we do that the state court did not apply the
proper standard, granted the writ. Despite the limited role
of a federal court on habeas review we must affirm. If a
state court can evade all federal review by merely parroting
the correct Supreme Court law, then the writ of habeas corpus
facts related to this case are expansive and convoluted, and
those facts have been reported in various iterations
throughout the decisions of the state courts of Wisconsin and
in the district court. We borrow heavily from the district
court and report just those facts needed for purposes of this
appeal and refer the reader to the full district court
opinion, Dassey v. Dittmann, 201 F.Supp.3d 963 (E.D.
Wise. 2016) for further details.
Halbach was a 25-year-old summa cum laude graduate of the
University of Wisconsin-Green Bay who was running her own
photography business. She was the second oldest of five
children in a tight-knit family, and lived in a farmhouse a
quarter mile from her parents. On October 31, 2005, she
photographed three vehicles for Auto Trader Magazine. She
took the third and final series of photographs at the Avery
salvage yard. She never returned home. Her life and career
were cut short by a heinous and senseless crime.
brutally burned body provided few clues about her death, but
other investigative methods provided the state court with the
following facts. Halbach had taken photographs at the Avery
property on five prior occasions, and Avery called Auto
Trader the morning of October 31 and requested that "the
same girl who had been out here before" come and take
pictures of a vehicle that was for sale. Just before 2:30
p.m., Halbach contacted Auto Trader Magazine and said that
she was on her way to the Avery property. Sometime around
2:30 or 2:45 p.m., a neighbor of Avery's saw Halbach
photographing a minivan and then proceed toward Avery's
residence. The neighbor left home at about 3:00 p.m. and
observed Halbach's 1999 Toyota RAV4 still outside
Avery's residence but did not see Halbach. When he
returned home at approximately 5:00 p.m., Halbach's RAV4
was gone. Halbach was not seen or heard from after that time.
November 5, 2005, volunteer searchers scoured the forty acre,
4, 000 vehicle salvage yard and found Halbach's RAV4
partially covered by tree branches, fence posts, boxes,
plywood, and auto parts. The license plates had been removed
and the battery cables disconnected.
on that discovery, investigators obtained a search warrant
for the entire salvage yard and, after a week-long search,
found evidence that Halbach was the victim of a horrendous
crime. Some of that evidence came from a burn barrel and a
four-foot by six-foot burn pit near Avery's trailer. In
those burn areas, investigators found Halbach's charred
bone and dental remains, burned remnants of a cell phone and
camera of the same make and model that Halbach used, and a
zipper and rivets from a brand of women's jeans that
Halbach was known to wear. State crime lab experts later
determined, based on the skull fragments, that Halbach had
been shot twice in the head. Multiple witnesses reported
seeing a large bonfire in the burn pit outside of Avery's
residence on October 31. The police arrested Avery after the
discovery of this evidence.
investigators found a roughly six-inch blood stain in the
rear cargo area of Halbach's RAV4, and other smaller
stains in and around the cargo area that matched
Halbach's DNA. Also in the RAV4, forensic examiners found
very small blood stains that matched Avery's DNA profile
on the following locations: a panel just to the right of the
ignition, a CD case, a metal panel between the rear seats and
the vehicle cargo area, the driver's seat, the front
passenger's seat, and the floor next to the center
console. Avery's DNA was also detected on the hood latch.
investigation of Avery continued as he awaited trial.
Investigators began interviewing family members, including
Dassey and Avery's niece, Kayla Avery. Kayla stated that
her cousin Brendan Dassey had been "acting up lately,
" that he was staring into space and crying
uncontrollably, and that he had lost roughly forty pounds.
Dassey later explained that the weight loss had been part of
an effort to find a girlfriend and that the tears had been
over a break up. But based on Kayla's interview, and the
fact that another witness reported seeing Dassey at the
bonfire with Avery around 7:30 or 7:45 p.m. on October 31,
investigators decided that it was necessary to re-interview
County Sheriff's investigator, Mark Wiegert, and
Wisconsin Department of Justice Special Agent, Tom
Fassbender, travelled to Dassey's high school on February
27, 2006, and, without his parents' knowledge, met with
him in a conference room for about an hour. Dassey was a
sophomore who received special education services, and whose
IQ had been measured at various times between 74 and 81,
falling fairly far below an average range of intelligence. On
the Wechsler scale of intelligence, Dassey's score meant
that 90% of adolescents his age would have performed
intellectually better than he did, and on the Kaufman scale,
87% of adolescents his age would have performed better. R.
19-22 at 48-49. A psychological expert at trial described
Dassey as highly suggestible, docile, withdrawn, with extreme
social anxiety and social avoidant characteristics, and more
suggestible than 95% of the population.
first interview with the officers, Dassey said that Avery had
asked him to help load tires and an old van seat onto a
bonfire near Avery's trailer on the evening of October
31, but that he saw nothing unusual before going home.
Because of the poor quality of the cassette tape recording of
that interview, the prosecuting attorney requested that the
investigators re-interview Dassey to create a better record.
Wiegert and Fassbender made arrangements to interview Dassey
again later that same day at the local police station.
and Fassbender contacted Dassey's mother, Barbara Janda,
who met them at the school. The investigators drove Dassey
and Janda to the police station. According to Wiegert and
Fassbender, Janda declined their offer to be present for the
interview and instead remained in a waiting area of the
police station. R. 19-19 at 7. According to Janda, the
investigators discouraged her from attending the interview.
R. 19-30 at 155. This second February 27 interview, which
lasted less than an hour, began with a long monologue by
Fassbender, who sat down with Dassey and said, "some
people back there say no, we'll just charge him. We said
no, let us talk to him, give him the opportunity to come
forward with the information that he has, and get it off his
chest." R. 19-24 at 5. Then, Fassbender set forth his
role in the investigation and made what Dassey characterizes
as the first of many assurances and promises:
Mark and I, yeah, we're cops, we're investigators and
stuff like that, but I'm not right now. I'm a father
that has a kid your age too. There's nothing I'd like
more than to come over and give you a hug cuz I know
you're hurtin.' Talk about it ... I promise I will
not leave you high and dry.
R. 19-24 at 5. After this assurance, Dassey began what would
become a series of alterations in his story over time,
increasing his culpability in response to suggestions by the
investigators. The first such suggestion came after Dassey
initially denied having seen anything but garbage and other
detritus in the October 31 fire. The investigators insisted
that Dassey must have seen something suspicious in the fire.
Fassbender set forth his suspicions as follows:
I'm more interested in what you probably saw in that fire
or something. We know she was put in that fire, there's
no doubt about it. The evidence speaks for itself. And you
were out there with him. And unfortunately, I'm afraid
you saw something that you wished you never would have seen.
You know, I mean that's what we need to know. ... Did you
see a hand, a foot, something in that fire? Her bones? Did
you smell something that was not too right?
Id. at 5-6. Then, after Fassbender insisted several
times that Dassey must have seen something in the fire, and
suggesting the body parts that he had seen, Dassey admitted
that he had seen those same body parts-fingers and toes, plus
a forehead, and a belly in the fire. By the end of this
interview, Dassey reported that he saw Halbach's body
parts in a fire, that he saw Avery burn clothing in a fire,
and that Avery had confessed that he had stabbed Halbach, put
her in the fire and hid her car in the yard.
met with Dassey again that evening in a hotel room where
Dassey told Fassbender, in an unrecorded interview, that he
had stained his pants with bleach as he helped clean the
floor of Avery's garage. Wiegert testified that after
those interviews he thought Dassey might have had some
culpability in the criminal disposal of Halbach's corpse.
R. 19-12 at 18-21; R. 19-30 at 38.
March 1, 2006, the officers returned to Dassey's school
for a fourth interview. They read Dassey his Miranda rights,
and he again agreed to speak with them. Wiegert and
Fassbender first drove Dassey to his house on the Avery
property to retrieve the bleach-stained jeans and then drove
him forty-five minutes away to the Manitowoc County
Sheriff's Department. The State asserted that it asked
Janda for permission to interview her son. R. 19-19 at 12;
19-30 at 156. Janda claimed that the investigators never
asked her if she wanted to be present for the interview. R.
19-30 at 156. This fourth interview produced a confession
that became the key evidence against Dassey at his trial.
March 1 interview lasted three hours, with one half-hour
break, and then a second fifty-minute break at the end before
Dassey was taken into custody. The interrogation was
conducted in what is known as a "soft room" in the
Sheriff's Department-one with a small couch, two soft
chairs and lamps. Dassey was offered food, drink, and access
to a re-stroom at the start and at various times throughout
the interview. The investigators reminded Dassey of his
Miranda rights, and the interview was audio and video
recorded. No adult was present on Dassey's behalf.
March 1 confession unfolded as follows in this very brief
summary: Dassey first admitted only to helping Avery clean
some fluid from the garage floor after Avery cut a line of
the vehicle on which he was working. Eventually, after much
encouragement, the story evolved to one in which Dassey saw
Halbach's already dead, clothed, and tied up body in the
back of her RAV4 and helped Avery put her body in a bonfire.
In the next iteration, he reported hearing screaming at
Avery's house as he brought Avery his mail. He entered
and found a sweaty Avery and saw Halbach naked and handcuffed
to Avery's bed. Finally, Dassey admitted to a horrific
series of crimes-raping Halbach, cutting her throat, tying
her up, cutting her hair, and then taking her to the garage
where Avery shot her in the head and the two of them disposed
of her body in the fire. Although we report the evolution of
his confession linearly, it is far from that. Dassey's
story changes; he backtracks; officers try to pin him down on
time frames and details, but they are like waves on the sand.
Even the State has trouble telling its version of the
timeline of the story in any cogent manner due to the fact
that it changed with each re-telling. See Brief of
Respondent-Appellant at 9, n.3. Although the State presents a
cogent story line in its brief on appeal, it does so by
picking and choosing pieces from various versions of
very end of the confession, Dassey's mother entered the
interrogation room and the following exchange occurred after
the officers left the room:
Brendan: I got a question?
Barb Janda: What's that?
Brendan: What'd happen if he says something his
story's different? Wh-he says he, he admits to doing it?
Barb Janda: What do you mean?
Brendan: Like if his story's like different, like I never
did nothin' or somethin'.
Barb Janda: Did you? Huh?
Brendan: Not really.
Barb Janda: What do you mean not really?
Brendan: They got to my head.
R. 19-25 at 148. At that point, one of the officers reentered
the room and the conversation ended. We will fill in the
remaining details of this confession as we discuss the
voluntariness of it, vel non, in the following
the entirety of the State's case rested on these
interviews and one phone call between Dassey and his mother
after his final police interview which we describe below.
There was no physical evidence linking Dassey to the murder
of Halbach-investigators did not find any of
Dassey's DNA or blood on any of the many objects that
were mentioned in his confession-the knives in Avery's
house, gun, handcuffs, bed, RAV4, key, or automotive dolly.
his arrest, the state public defender's office appointed
private attorney Len Kachinsky to represent Dassey. Kachinsky
met with Dassey on March 10, 2006. Dassey told Kachinsky that
he was innocent, that his confession was not true, and that
he wanted to take a polygraph test. After this meeting,
despite Dassey's claims of innocence, Kachinsky spoke to
the media and described Dassey as sad, remorseful, and
overwhelmed. The media reported that Kachinsky blamed Avery
for "leading Dassey down the criminal path" and
said that he had not ruled out a plea deal. R. 19-39 at 4,
9-11. Over the next few days, nearly all of Kachinsky's
work on Dassey's case involved communicating with the
local media, during which appearances he stated that
"there is quite frankly, no defense, " and that all
of the investigation techniques were standard and legitimate,
despite the fact that Kachinsky had not yet watched the
recorded police interview R. 19-26 at 142, 144-45, 153, 170.
During each of Kachinsky's media appearances he indicated
that Dassey was guilty and would likely accept a plea.
Kachinsky testified at a post-conviction relief hearing that
one of his reasons for making these statements to the media
was so that Dassey and his family would become
"accustomed to the idea that Brendan might take a legal
option that they don't like. ..." R. 19-26 at
136-37. Eventually the prosecutor sent an email to Kachinsky
expressing concern about the pretrial media appearances and
referred Kachinsky to the relevant rules of ethics for
meantime, Kachinsky hired investigator Michael O'Kelly,
with whom he was not familiar, to help in the investigation
of the case and to conduct the polygraph examination that
Dassey had requested. Despite Dassey's claims of
innocence, Kachinsky and O'Kelly proceeded on the
assumption that Dassey would plead guilty and assist the
prosecution in Avery's case. O'Kelly testified at the
state post-conviction hearing that his goal was to uncover
information and evidence that would bolster the
prosecution's case against Avery even if that
"evidence would tend to inculpate Brendan, " R.
19-29 at 47, and that his "emotions sided with what
happened to Teresa Halbach." Id. at 96.
Kachinsky and O'Kelly even sent information to the
prosecution about the location of a knife they thought had
been used in the crime, based on what they had cajoled from
Dassey, but searches pursuant to those tips did not produce
effectuate his plan to garner Dassey's cooperation in
Avery's prosecution, Kachinsky decided that the
investigator, O'Kelly, should re-interview Dassey and
compel him to confess yet again, and should do so after the
trial judge denied the motion to suppress his March 1
interview, when he would be most vulnerable. R. 19-26 at 244.
before interviewing Dassey, O'Kelly wrote to Kachinsky
and referred to the Avery family as "criminals" and
asserted that family members engaged in incestuous sexual
conduct and had a history of stalking women. R. 19-29 at 93.
He continued, "This is truly where the devil resides in
comfort. I can find no good in any member. These people are
pure evil." Id. O'Kelly quoted a friend as
having said, "This is a one branch family tree. Cut this
tree down. We need to end the gene pool here."
Id. at 94. O'Kelly thought that Dassey's
claim of innocence was an "unrealistic"
"fantasy" that was influenced by his family. R.
19-29 at 83, 84, 86-88. On O'Kelly's recommendation,
Kachinsky canceled a planned visit with Dassey because Dassey
"needs to be alone." R. 19-26 at 248-49.
O'Kelly said, "He needs to trust me and the
direction that I steer him into." R. 19-26 at 249.
began his interview with Dassey, which he video recorded
without permission from Dassey's parents, by pointing to
what he said were the polygraph examination results on a
laptop computer screen and asking Dassey if he could read
them. R. 19-38 at 1. Despite having previously told Kachinsky
that the results of the polygraph examination were
inconclusive R. 19-26 at 210,  O'Kelly told Dassey that the
polygraph indicated deception and that the probability of
deception was 98%. R. 19-38 at 1. When Dassey asked what that
meant, O'Kelly asked what he thought it meant. R. 19-38
at 1. Dassey responded, "That I passed it?" R.
19-38 at 1. "It says deception indicated, "
O'Kelly responded, emphasizing "deception."
Id. After a long pause, Dassey asked, "That I
failed it[?]" Id.
proceeded to harangue Dassey with photographs and personal
effects of Halbach, threaten him with life in prison, and
badger him to admit that he was sorry. Dassey continued to
profess his innocence, insisting, "I don't know [if
I'm sorry], because I didn't do anything, " to
which O'Kelly responded, "If you're not sorry, I
can't help you ... Do you want to spend the rest of your
life in prison? You did a very bad thing." R. 19-38 at
2. Dassey responded, "Yeah, but I was only there for the
fire though." Id.
O'Kelly's plan prevailed after he convinced Dassey
that if he confessed he would be sentenced to only twenty
years in prison and could someday be released and have a
family. (The government had not, in fact, placed any plea
deal on the table.) Otherwise, O'Kelly threatened, Dassey
would go to prison for the rest of his life. After a grueling
interrogation by O'Kelly, Dassey confessed, providing yet
another version of the story. O'Kelly immediately
telephoned Kachinsky who arranged for Dassey to undergo
another police interrogation the next day, May 13. Kachinsky
did not arrange for any immunity agreements, plea offers, or
other safeguards. In fact, he agreed that the State would
provide "no consideration" in exchange for a second
chance to interrogate (the police considered this to be only
the second interrogation because they considered the first
few meetings to be "witness interviews.") R. 19-26
at 80; R. 19-27 at 34-38. Kachinsky did not accompany Dassey
to this meeting and allowed him to be interrogated without
counsel. That interview differed in many significant ways
from the story Dassey told on March 1, but it was never
admitted or used at trial.
end of the May 13 interview, Fassbender and Wiegert advised
Dassey that he should call his mother over the recorded jail
telephone line and admit his guilt so that she would hear it
from him first rather than from the officers. Dassey's
mother was scheduled to visit him the following day, but the
investigators told him that it would be a "good idea to
call her before she gets here, tonight. That's what
I'd do. Cuz, otherwise she's going to be really mad
tomorrow. Better on the phone, isn't it?" R. 19-34
at 69. The contents of that telephone call are set forth in
the district court opinion. Dassey v. Dittmann, 201
F.Supp.3d at 980-81. In that call, Dassey explained why he
was confessing (for a lower sentence), told his mother that
he did "some of it" but denied having sexual
contact with Halbach, denied seeing her in the fire, denied
knowing if Avery killed Halbach but asked, "So if I was
in the garage cleaning up that stuff on the floor, how much
time will I get though for that?" R. 19-35 at 8. He
described the liquid on the floor as "reddish-black
the trial court learned that Kachinsky had allowed Dassey to
be interviewed without counsel, it held a hearing on the
effectiveness of Kachinsky's counsel. The trial court
concluded that Kachinsky's performance was indefensible
and deficient under the standards set forth in Strickland
v. Washington, 467 U.S. 1267 (1984). The trial judge
decertified Kachinsky from being appointed in most felony
matters going forward, noting particularly the egregiousness
of the fact that Kachinsky had "allowed his 16-year-old
client, who previous testimony has disclosed to have
cognitive ability within borderline to below average range,
to be interviewed by law enforcement officials without his
attorney present." R. 19-14 at 22. The decertification
was prospective only and thus did not directly apply to
Kachinsky's representation of Dassey. Nevertheless,
Kachinsky moved to withdraw as Dassey's counsel, and the
court granted the motion.
trial court never learned that Kachinsky and O'Kelly had
worked to compel Dassey's confession, videotaped
O'Kelly interrogating Dassey, exchanged e-mails
describing the whole family as "evil" and
"criminals, " and, without Dassey's knowledge
or consent, sent an e-mail to prosecutors on May 5 indicating
where they thought the murder weapon was hidden. No murder
weapon was ever found. These facts did not come to light
until the state postconviction hearing.
13 interrogation that grew from the poisoned tree of the
O'Kelly interrogation was neither used nor discussed at
trial, but the trial court never made any explicit ruling on
its admissibility. At oral argument the State was unable to
tell this court why the May 13 interview was not used at
trial, but we will assume that based on what the State
concedes was unacceptable representation by Ka-chinsky, the
State recognized that the May 13 interview had been
irreparably poisoned. But the May 13 phone call that resulted
from the May 13 interrogation-the phone call the police had
urged Dassey to make to his mother on the recorded jail
telephone line-was used three times at trial: once to cross
examine Dassey; once to cross-examine Dassey's expert
psychologist, and in closing argument to undermine
trial, the centerpiece of the prosecution's case was
Dassey's March 1 confession, in which he admitted to
participating in the alleged sexual assault and murder of
Halbach as well as the disposal of her body. Dassey's
defense was that his confession was not true or voluntary,
that he accepted his uncle's invitation to a bonfire and
then helped him gather items from the salvage yard to burn
before helping Avery clean up something that looked like
automotive fluid from the garage floor, staining his pants
with bleach in the process. Dassey testified that he did not
know why he had said the things that he did to the police
investigators and that he thought that the investigators had
promised that he would not go to jail no matter what he told
trial, Dassey's attorneys presented evidence that the
answers in his confession came not from Dassey, but from
ideas planted by the investigators, that the investigators
continually linked the idea that if Dassey gave them the
answers they wanted to hear, that he would be okay and set
free, and that Dassey was extremely suggestible and would say
things to please the investigators and avoid
conflict. One example that the jury saw, as they
watched the four hour interrogation, concerned Halbach's
shooting. By the time of the March 1 confession, forensic
examiners had informed law enforcement that Halbach had been
shot in the head, but this information was not yet public. If
Dassey could tell the investigators that Halbach had been
shot in the head, it would have been strong evidence of the
veracity of his confession. Dassey had never mentioned that
Halbach was shot. Consequently, the investigators repeatedly
asked Dassey what else happened to Halbach. After many, many
attempts at this, they became more specific and asked
"What else did he do to her? ... Something with the
head." R. 19-25 at 60. But even this clue was not enough
to elicit the information they wanted and instead triggered a
litany of apparent guesses from Dassey that bordered on the
absurd. Dassey guessed that her hair had been cut, that she
had been punched, that her throat had been cut-each time
being told by the investigators that was not what they were
looking for, until finally, Wiegert became frustrated and
asked, "All right, I'm just gonna come out and ask
you. Who shot her in the head?" Id. at 63. This
was one of the few scenarios that Dassey had not guessed at
that point. As we will explore below, this pattern of
suggestive questioning continued throughout the
defense also presented the testimony of a forensic
psychologist, Dr. Robert Gordon, who testified that he
reviewed many years of Dassey's school records, performed
a mental status examination of Dassey, and tested Dassey
using various established psychological tests. R. 19-22 at
23-166. His ultimate conclusion was that Dassey had several
characteristics likely to make him unusually suggestible in
interrogation situations. Dr. Gordon described Dassey's
thought process as slow with a mild to moderate mental
impairment. His test results demonstrated that Dassey
performed on the extreme ends of the scales for social
avoidance (being socially passive and withdrawn), social
introversion, and social alienation (alienated from society
and cut off from those with whom he interacts). Dassey scored
in the 99th percentile for social avoidance, the 97th
percentile for social introversion and 98.5th percentile for
social alienation. On other tests, Dassey's results
indicated that he was shy, passive, subdued and
dependent-qualities that make one more susceptible to
suggestion. Dr. Gordon also testified that Dassey had low
average to borderline intelligence (IQ tests ranged from the
low 70s to 84, or in the 10-13% percentile of intelligence).
Gordon also administered the Gudjons-son Suggestibility
Scales, a test developed by a forensic psychologist and a
leading expert in confessions, which is designed to measure
interrogative suggestibility. The results indicated that
Dassey was more suggestible than 95% of the population. Dr.
Gordon also explained how, based on all of his
characteristics, Dassey would have been manipulable and
vulnerable to the particular interrogation techniques used,
including mild pressure and leading questions. He noted that
a suggestible person would be particularly swayed by false
information of guilt, minimization of the seriousness of the
crime, blaming other participants for their influence, or
promises that family members will be spared trouble if the
suspect confesses. Id. at 62. In a short rebuttal,
the State presented psychologist Dr. James Armentrout, who
expressed discomfort with the suggestibility testing and did
not agree with the conclusion that Dassey was particularly
suggestible. Id. at 177-225.
five and a half hours of deliberation, the jury found Dassey
guilty on all counts. On August 2, 2007, the trial court
sentenced Dassey to life in prison for first-degree
intentional homicide, not eligible for release to extended
supervision until November 1, 2048. R. 19-2 at 15-16. The
court further sentenced Dassey to six years of imprisonment
for mutilating a corpse, and fourteen years imprisonment for
second-degree sexual assault, both to be served concurrently
with the murder sentence. Id.; Dassey v. Dittmann,
201 F.Supp.3d at 985. Dassey appealed his conviction without
moved for post-conviction relief in the trial court claiming
that his pre-trial and trial counsel provided ineffective
assistance and that his March 1 confession was involuntary.
Upon his motion, the Wisconsin state court held a five-day
hearing, beginning January 15, 2010, which included the
testimony of Dassey's mother, his school psychologist,
one of his trial attorneys, the prosecutor, a social
psychologist, Kachinsky, O'Kelly, and Richard Leo, an
expert on false confessions. The circuit court of Wisconsin
denied Dassey postconviction relief on December 13, 2010.
appeal of the post-conviction ruling, the Wisconsin Court of
Appeals stated that it was evaluating Dassey's claim of
involuntariness on the totality of the circumstances,
"balancing the defendant's personal characteristics
against the police pressures used to induce the
statements." State v. Dassey, No. 2010AP3105,
2013 WL 335923 at *1, Wi. App. 30, ¶5, *1, 827 N.W.2d
928 (table) (Wise. Ct. App., Jan. 30, 2013).That evaluation
boiled down to just a few sentences in the following two
¶ 6 The trial court found that Dassey had a "low
average to borderline" IQ but was in mostly
regular-track high school classes; was interviewed while
seated on an upholstered couch, never was physically
restrained and was offered food, beverages and restroom
breaks; was properly Mirandized; and did not appear to be
agitated or intimidated at any point in the questioning. The
court also found that the investigators used normal speaking
tones, with no hectoring, threats or promises of leniency;
prodded him to be honest as a reminder of his moral duty to
tell the truth; and told him they were "in [his]
corner" and would "go to bat" for him to try
to achieve a rapport with Dassey and to convince him that
being truthful would be in his best interest. The court
concluded that Dassey's confession was voluntary and
¶ 7 The court's findings are not clearly erroneous.
Based on those findings, we also conclude that Dassey has not
shown coercion. As long as investigators' statements
merely encourage honesty and do not promise leniency, telling
a defendant that cooperating would be to his or her benefit
is not coercive conduct. State v. Berggren, 2009
WI.App. 82, ¶ 31, 320 Wis.2d 209, 769 N.W.2d 110. Nor is
professing to know facts they actually did not have. See
State v. Triggs, 2003 WI.App. 91, ¶¶ 15, 17,
264 Wis.2d 861, 663 N.W.2d 396 (the use of a deceptive tactic
like exaggerating strength of evidence against suspect does
not necessarily make confession involuntary but instead is a
factor to consider in totality of circumstances). The truth
of the confession remained for the jury to determine.
State v. Dassey, 2013 WL 335923 at *2. Although the
state appellate court listed Dassey's characteristics and
some of the circumstances of his interrogation, as we will
describe in detail below, it did not do the one thing that
the Supreme Court requires which is to use "special
caution" when assessing the voluntariness of juvenile
confessions. J.D.B. v. North Carolina, 564 U.S. 261,
269 (2011); In re Gault, 387 U.S. 1, 45 (1967);
Gallegos v. Colorado, 370 U.S. 49, 53-54, (1962);
Haley v. Ohio, 332 U.S. 596, 599-601 (1948).
Paragraph 6 of the appellate court decision lists
Dassey's age and intellectual limitations, but then, in
paragraph 7, the only paragraph that analyzes whether
Dassey's confession was voluntary or coerced, it merely
applies the same analysis that would apply to an adult with
full intellectual capabilities. Specifically, the state
appellate court concluded that tactics such as encouraging
honesty and the use of deceptive practices that are not
considered coercive when used with adults must not have been
coercive when used on the intellectually challenged,
16-year-old Dassey. A state court's evaluation need not
be lengthy or detailed, but it must at the very least meet
the bare minimum requirements of Supreme Court precedent. The
admonition to assess juvenile confession with special caution
has no meaning if a state appellate court can merely mention
a juvenile's age and then evaluate the voluntariness of
his confession in reference to the standard for adults of
ordinary intelligence. And if a court can merely state the
generic Supreme Court rule without any analysis, then no
federal court could ever find that "a decision ...
involved an unreasonable application of clearly established
Federal law" pursuant to 28 U.S.C. § 2254(d)(1)
juveniles, the evaluation of the totality of the
circumstances "includes evaluation of the juvenile's
age, experience, education, background, and intelligence, and
into whether he has the capacity to understand the warnings
given him, the nature of his Fifth Amendment rights, and the
consequences of waiving those rights." Fare v.
Michael C, 442 U.S. 707, 725 (1979); see also
Murdock v. Dorethy, 846 F.3d 203, 209 (7th Cir. 2017);
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.
2002). At no time did the state appellate court
evaluate any of these factors, other than to merely
list some of them. It did not provide any analysis of how
Dassey's personal characteristics played a role in the
interrogation. It did not consider Dassey's
suggestibility, did not discuss the fact that he was
unrepresented and without a parent's assistance, and it
did not consider whether Dassey's low IQ and learning
disabilities may have affected how he interpreted statements
made by interrogators. The court never evaluated Dassey's
capacity to understand the warnings given him, the nature of
his Fifth Amendment rights, and the consequences of waiving
those rights. In short, the state appellate court did not
identify the correct test at all and did not apply it
state appellate court also declined to overrule the lower
court's decision denying Dassey's claim of
ineffective assistance of counsel. As for Kachinsky's
conceded deficiencies, the court stated that he was
"long gone before Dassey's trial or sentencing.
Dassey has not convinced us that Kachinsky's actions
amounted to an actual conflict and that Kachinsky's
advocacy was adversely affected, such that it was detrimental
to Dassey's interests." Id. at *4. And in
reference to trial counsel's performance, the appellate
court held that the trial court had not erred when it
determined that each of Dassey's claims of ineffective
assistance of trial counsel was based on his attorneys'
reasonable tactical strategies. Id. at *6.
the Wisconsin Supreme Court denied his petition for review,
Dassey filed a petition for a writ of habeas corpus in the
federal district court pursuant to 28 U.S.C. § 2254,
claiming that he was denied his rights to effective
assistance of counsel under the Sixth Amendment of the United
States Constitution, and that his March 1, 2006 confession
was obtained in violation of the Fifth Amendment. The
district court concluded that although Kachinsky's
misconduct might support a claim for relief under
Strickland, Dassey made his claims regarding
Kachinsky under Cuyler v. Sullivan, 446 U.S. 335
(1980), and case law demarcating the limits of the
Sullivan test prohibit the court from granting
Dassey's habeas relief claim on that ground.
Dassey, 201 F.Supp.3d at 991-92. It further
concluded that the state court of appeals' decision as to
the admissibility of the May 13 telephone call between Dassey
and his mother was not contrary to clearly established
federal law or based on an unreasonable determination of the
facts. Id. at 992. However, the district court
concluded that "the confession Dassey gave to the police
on March 1, 2006 was so clearly involuntary in a
constitutional sense that the court of appeals' decision
to the contrary was an unreasonable application of clearly
established federal law/' and that the admission of the
confession was not harmless error. Id. at 1005-06.
The district court ordered the State to release Dassey from
custody unless, within 90 days, the State initiated
proceedings to retry him. Id. at 1006. On November
17, 2016, this court stayed the district court's order
releasing Dassey pending resolution of this appeal. Court of
Appeals Record, R. 22.
The AEDPA and habeas relief.
Antiterrorism and Effective Death Penalty Act of 1996 governs
our review of a state court conviction and limits it
considerably. It "erects a formidable barrier to federal
habeas relief for prisoners whose claims have been
adjudicated in state court, requiring them to show that the
state court's ruling ... was so lacking in justification
that there was an error ... beyond any possibility for fair
minded disagreement." Burt v. Titlow, 134 S.Ct.
10, 12 (2013). "[W]e may not grant relief where
reasonable minds could differ over the correct application of
legal principles, and we must evaluate that application on
the basis of the law that was 'clearly established'
at the time of the state court adjudication." Elmore
v. Holbrook, 137 S.Ct. 3, 7 (2016). A federal court
reviewing a habeas petition must examine the decision of the
last state court to rule on the merits of the issue, which in
this case is the state appellate court ruling on
post-conviction relief. Makiel v. Butler, 782 F.3d
882, 896 (7th Cir. 2015).
the AEDPA, Dassey must demonstrate that the state court
proceedings "(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(1) and (2). Under
§ 2254(d)(1), a state-court decision is contrary to
Supreme Court precedent if it is inconsistent with the
Supreme Court's treatment of a materially identical set
of facts, or if the state court applied a legal standard that
is inconsistent with the rule set forth in the relevant
Supreme Court precedent. Bell v. Cone, 535 U.S. 685,
694 (2002) (citing Williams v. Taylor, 529 U.S. 362,
405-06 (2000)). And a state-court decision constitutes an
unreasonable application of Supreme Court precedent within
the meaning of section 2254(d)(1) when, although it
identifies the correct legal rule, it applies that rule to
the facts in a way that is objectively unreasonable.
White v. Woodall, 134 S.Ct. 1697, 1705 (2014).
§ 2254(d)(2), a state court's decision involves an
unreasonable determination of the facts if it "rests
upon factfinding that ignores the clear and convincing weight
of the evidence." Corcoran v. Neal, 783 F.3d
676, 683 (7th Cir. 2015), cert, denied, 136 S.Ct.
1493 (2016); see also Miller-El v. Cockrell, 537
U.S. 322, 340 (2003) (a federal court can, guided by AEDPA,
conclude that a state court's decision was unreasonable
or that the factual premise was incorrect by clear and
granting the writ, the district court specifically noted that
it did not reach its conclusion to declare the state court
ruling unreasonable lightly. It was, as we are, mindful of
the extremely restricted nature of habeas relief under the
AEDPA, and that mindfulness was apparent from the great care
the district court took in conscribing its ruling to the
limited role a federal court can play in reviewing the
petitioner's writ. Dassey v. Dittmann, 201
F.Supp.3d at 986-87, 1005. The district court exhaustively
surveyed Supreme Court precedent and continuously held its
analysis up to the light of habeas restraint. See
Id. at 986-87, 990-91, 1003-05. "Deference, "
however, "does not by definition preclude relief."
Miller-El v. Dretke, 545 U.S. 231, 240 (2005).
Section 2254(d)(1) allows for a grant of relief when a
decision involved an unreasonable application of clearly
established Federal law. And if that section has any meaning,
then it must mean that a state court evaluating the
voluntariness of a juvenile confession must apply the factors
that the Supreme Court has identified as relevant to juvenile
the district court's grant of the writ was firmly linked
to its determination under § 2254 (d)(2) that "the
state court's finding that there were no promises of
leniency was against the clear and convincing weight of the
evidence." Dassey v. Dittmann, 201 F.Supp.3d at
1003 (internal citations omitted). "Concluding that the
investigators never made any such promises was no minor error
but rather a fact that was central to the court's
voluntariness finding." Id. The district court
found that the determination was not merely incorrect, but
unreasonable. Id. Secondly, the court concluded that
the state court had unreasonably applied clearly established
federal law by ignoring the totality of the circumstances in
assessing the voluntariness of Dassey's confession.
Id. at 1004. The district court noted that although
the state appellate court articulated the correct standard
(but only as it applied to adults), it ignored several
determinative factors outright and, most importantly, focused
on the statements of the investigators in isolation rather
than assessing them in view of Dassey's personal
characteristics or their cumulative effect on the
voluntariness of Dassey's confession. Id. at
like the district court, have kept the strict constraints of
the AEDPA forefront in our minds as we proceed with our
de novo review of the district court's decision
to grant the habeas petition. Rodriguez v. Gossett,
842 F.3d 531, 537 (7th Cir. 2016).
even given the constraints of the AEDPA, we must conclude
that the state court's determination was an unreasonable
application of Supreme Court precedent. Although it
identified the general rule that a court must consider the
totality of the circumstances, it failed to apply the
"special caution" required in juvenile confessions
and failed to evaluate the totality factors for juveniles as
required. Furthermore, the state appellate court applied the
generic totality of the circumstances test to the facts in a
way that was objectively unreasonable. See 28 U.S.C.
§ 2254(d)(1). The trial court's determination of the
facts was also unreasonable as it ignored the clear and
convincing weight of the evidence. See 28 U.S.C.
§ 2254(d)(2); Miller-El v. Cockrell, 537 U.S.
at 340. Although the state appellate court noted that it was
obligated to consider the totality of the circumstances, it
did not do so. As we noted, in juveniles, the evaluation of
the totality of the circumstances "includes evaluation
of the juvenile's age, experience, education, background,
and intelligence, and into whether he has the capacity to
understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those
rights." Fare, 442 U.S. at 725; see also
Murdock, 846 F.3d at 209; Hardaway, 302 F.3d at
762. The state appellate court listed Dassey's
age, education and IQ, but it never, at any point, evaluated
those factors to determine whether they affected the
voluntariness of Dassey's confession. Likewise the
appellate court analyzed some of the
investigators' interrogation techniques, but it never
evaluated or assessed how those techniques affected the
voluntariness of an intellectually challenged juvenile's
confession. Instead, the state appellate court merely stated
that, in cases involving adults of ordinary intelligence,
encouraging honesty and using deceptive practices does not
make a confession involuntary.
the state appellate court ignored the many signs that Dassey
was trying to please the interrogators and avoid conflict and
a clearcut pattern of fact-feeding linked to promises that,
together, resulted in a situation where Dassey's will
clearly was overborne. That pattern was as follows: the
investigators emphasized, ad nauseum, that in order to be
"okay" to "get things over with" to be
"set free" Dassey had to be "honest." Yet
throughout the interrogation it became clear that
"honesty" meant those things that the investigators
wanted Dassey to say. Whenever Dassey reported a fact that
did not fit with the investigators' theory, he was
chastised and told that he would not be "okay"
unless he told the truth. And this pattern continued until
Dassey finally voiced what the investigators wanted him to
say, seemingly by guessing, or the investigators fed him the
information they wanted. Once he spoke "correctly,
" the investigators anchored the story by telling
Dassey, "now we believe you" to signal to him that
this was the version that would allow him to be "okay,
" or "set him free." By doing this-by linking
promises to the words that the investigators wanted to hear,
or allowing Dassey to avoid confrontation by telling the
investigators what they wanted to hear-the confession became
a story crafted by the investigators instead of by Dassey.
And, as we will see, it was a confession that therefore
cannot not be viewed as voluntary.
case the analysis of 2254(d)(1) and 2254(d)(2) overlap. The
state court unreasonably applied the rule requiring it to
consider the totality of the circumstances to the facts of
the case, and those were the very same facts that the state
court determined unreasonably.
Voluntariness in confessions.
The constitutional requirement of voluntariness.
confessions are anathema to the judicial process. They are
not beneficial to the prosecutor whose goal is to find,
punish, and incapacitate the actual criminal, they are not
beneficial to grieving relatives and friends who want to
bring justice to the perpetrator of a crime, and, of course,
they are of no benefit to a wrongfully accused defendant. For
these reasons it is obvious why coercive tactics that lead to
a false confession would be an affront to our judicial
system. But the use of involuntary confessions violates the
Constitution even when they are confessions of truth (where,
in fact, it is possible to know such a thing). "The aim
of the requirement of due process is not to exclude
presumptively false evidence, but to prevent fundamental
unfairness in the use of evidence, whether true or
false." Colorado v. Connelly, 479 U.S. 157, 167
(1986) (citing Lisenba v. California, 314 U.S. 219,
236 (1941)). The Supreme Court has long held that
"certain interrogation techniques, either in isolation
or as applied to the unique characteristics of a particular
suspect, are so offensive to a civilized system of justice
that they must be condemned under the Due Process Clause of
the Fourteenth Amendment." Miller v. Fenton,
474 U.S. 104, 109 (1985) (citing Brown v. Mississippi,
297 U.S. 278 (1936)). Coerced confessions also violate
the Fifth Amendment's right against self-incrimination.
Withrow v. Williams, 507 U.S. 680, 688 (1993). As
the Supreme Court noted, "'[A] criminal law system
which comes to depend on the confession will, in the long
run, be less reliable and more subject to abuses than a
system relying on independent investigation."
Berghuis v. Thompkins, 560 U.S. 370, 403-04 (2010)
(internal citations omitted).
ultimate issue of Voluntariness' is a legal question
requiring independent federal determination."
Arizona v. Fulminante, 499 U.S. 279, 287 (1991);
Miller v. Fenton, 474 U.S. at 110. And under the
AEDPA, this court must ask whether the Wisconsin appellate
court's decision concluding that Dassey's confession
was not involuntary "was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,
" (28 U.S.C. § 2254(d)(1); Bobby v. Dixon,
565 U.S. 23, 27, (2011)), or whether it was based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 28 U.S.C.
The risks of coercion on voluntariness.
courts have looked at traditional modes of coercion in
evaluating whether the defendant voluntarily confessed-that
is, whether the suspect was tortured, beaten, or deprived of
sleep, food or water. The Supreme Court and the community of
experts on confessions have long recognized, however, that
psychological coercion can be as powerful a tool as physical
coercion. Fulminante, 499 U.S. at 287.
The primary cause of police-induced false confessions is the
use of psychologically coercive police interrogation methods.
These include methods that were once identified with the old
"third degree, " such as deprivation (of food,
sleep, water, or access to bathroom facilities, for example),
incommunicado interrogation, and extreme induced exhaustion
and fatigue. Since the 1940s, however, these techniques have
become rare in domestic police interrogations. Instead, when
today's police interrogators employ psychologically
coercive techniques, they usually consist of implicit or
explicit promises of leniency and implicit or explicit
threats of harsher treatment in combination with other
interrogation techniques such as accusation, repetition,
attacks on denials, and false evidence ploys.
Gould & Richard A. Leo, One Hundred Years Later:
Wrongful Convictions After A Century of Research, 100 J.
Crim. L. & Criminology 825, 846 (2010).
closing arguments at trial, the state argued that
"people who are innocent don't confess." R.
19-23 at 144. We know, however, that innocent people do in
fact confess and do so with shocking regularity. The National
Registry of Exonerations has collected data on 1, 994
exonerations in the United States since 1989 (as of February
26, 2017), and that data includes 227 cases of innocent
people who falsely confessed. This research indicates that
false confessions (defined as cases in which indisputably
innocent individuals confessed to crimes they did not commit)
occur in anywhere from 15-24% of wrongful convictions cases.
Samuel Gross & Michael Shaffer, Exoneration in the
United States, 1989-2012: Report by the National
Registry of Exonerations, 60.
The heightened risks of coercion for youth and the
is the risk of involuntary and false confessions higher than
with youth and the mentally or intellectually disabled. It is
for this reason that the Supreme Court has cautioned courts
to exercise "special caution" when assessing the
voluntariness of juvenile confessions. J.D.B., 564
U.S. at 269; In re Gault, 387 U.S. at 45;
Gallegos, 370 U.S. at 53-54, (1962); Haley,
332 U.S. at 599-601.
Indeed, the pressure of custodial interrogation is so immense
that it "can induce a frightening-ly high percentage of
people to confess to crimes they never committed." That
risk is all the more troubling-and recent studies suggest,
all the more acute-when the subject of custodial
interrogation is a juvenile.
J.D.B., 564 U.S. at 269 (internal citations
omitted). In one of the seminal juvenile coerced-confession
cases, the Court noted that interrogators must treat minors
more carefully when questioning them as "[t]hat which
would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens." Haley, 332
U.S. at 599.
amicus curiae and related articles demonstrate, data supports
the Supreme Court's admonition for special care. A survey
of false confession cases from 1989-2012 found that 42% of
exonerated defendants who were younger than 18 at the time of
the crime confessed, as did 75% of ex-onerees who were
mentally ill or mentally retarded, compared to 8% of adults
with no known mental disabilities. Samuel Gross & Michael
Shaffer, Exoneration in the United States,
1989-2012: Report by the National Registry of Exonerations,
Overall, one sixth of the exonerees were juveniles, mentally
disabled, or both, but they accounted for 59% of false
confessions. Id. In another study of those
exonerated by DNA, juveniles accounted for one third of all
false confessions. Brandon L. Garrett, The Substance of
False Confessions, 62 Stan. L. Rev. 1051, 1094 (2010).
Indeed, age and intellectual disability are the two most
commonly cited characteristics of suspects who confess
falsely. Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson,
and Nicholas Montgomery, Exonerations in the United
States 1989 through 2003, 95 J. Crim. L. &
Criminology 523, 545 (2005). Dassey suffered under the weight
of both youth and intellectual deficit and thus the state
court was required, by a long history of Supreme Court
precedent, to assess the voluntariness of his confession with
great care, yet the state appellate court did not do so.
Although it mentioned Dassey's age and low IQ it never
made any assessment about how the interrogation techniques
could have affected a person with these characteristics.
The totality of the circumstances requirement for assessing
is no magic formula or even an enumerated list for assessing
the voluntariness of a confession. Such an assessment
depends, instead, upon the totality of the circumstances.
Withrow, 507 U.S. at 693; Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973). An incriminating
statement is voluntary "if, in the totality of
circumstances, it is the product of a rational intellect and
free will and not the result of physical abuse, psychological
intimidation, or deceptive interrogation tactics that have
overcome the defendant's free will." Carrion v.
Butler, 835 F.3d 764, 775 (7th Cir. 2016). Police
conduct may be unduly coercive because of the inherent nature
of the conduct itself or because "in the particular
circumstances of the case, the confession is unlikely to have
been the product of a free and rational will."
Miller v. Fenton, 474 U.S. at 110. "The
admissibility of a confession turns as much on whether the
techniques for extracting the statements, as applied to
this suspect, are compatible with a system that
presumes innocence and assures that a conviction will not be
secured by inquisitorial means as on whether the
defendant's will was in fact overborne."
Id. at 116 (emphasis in original). In short, a court
must look at the interplay between the characteristics of the
defendant and the nature of the interrogation. A simple
recitation of each, as the state appellate court did here, is
that courts consider as part of the totality of the
circumstances include the length of the interrogation, its
location, its continuity, the defendant's maturity,
education, physical condition, mental health, and whether the
police advised the defendant of his right to remain silent
and have counsel present. Withrow, 507 U.S. at
693-94. In juveniles, as we have noted, the evaluation of the
totality of the circumstances "includes evaluation of
the juvenile's age, experience, education, background,
and intelligence, and into whether he has the capacity to
understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those
rights." Fare, 442 U.S. at 725); see also
Murdock, 846 F.3d at 209; Hardaway, 302 F.3d at
state appellate court did not give Dassey's confession
the consideration required when evaluating the voluntariness
of a confession of an intellectually disabled juvenile.
Cases as guideposts for a voluntariness assessment.
surveying the Supreme Court cases on the voluntariness of
juvenile confessions one can see how much the unique
characteristics of both the defendant and the interrogation
play into the assessment of voluntariness. For this reason,
other cases can only act as broad guideposts.
"Determination of whether a statement is involuntary
requires more than a mere color-matching of cases. It
requires careful evaluation of all the circumstances of the
interrogation." Mincey v. Arizona, 437 U.S.
385, 401 (1978) (internal citations omitted).
example, in Haley, the Supreme Court held that the
methods used in obtaining the confession of a
fifteen-year-old boy could not be squared with the due
process commanded by the Fourteenth Amendment.
Haley, 332 U.S. at 599. Haley was arrested at
midnight and interrogated for five straight hours by six
officers in relays, after which time he confessed without
being told his rights. Id. He was then informed of
his rights and signed a written confession. Only after
another three days of isolation did the police allow him
access to his parents or a lawyer. Id. That
confession, the court found, could not be deemed voluntarily
for fourteen-year-old Robert Gallegos, who was picked up by
the police for assault and robbery and immediately admitted
to a crime. Gallegos, 370 U.S. at 50. He was locked
in juvenile hall for five days without access to a lawyer or
his parents, despite his mother's attempts to see him,
after which time he signed a confession. Id. The
court concluded that a fourteen year old in those
circumstances would have had no way to know what the
consequences of his confession were without advice as to his
rights. Id. at 54.
contrast, in Fare, a sixteen-year-old with rather
extensive prior experience in the criminal system confessed
to murder after being informed of his Miranda
rights. Fare, 442 U.S. at 709-11. The Supreme Court
found that "there is no indication that he was of
insufficient intelligence to understand the rights he was
waiving, or what the consequences of that waiver would be. He
was not worn down by improper interrogation tactics or
lengthy questioning or by trickery or deceit."
Id. at 726-27. And therefore, based on the totality
of the circumstances, the confession was not coerced and thus
admissible. Id. at 727.
cases from this circuit also demonstrate how we have applied
Supreme Court precedent to determine the reasonableness of a
state court's determination of voluntariness. Derrick
Hardaway was only fourteen years old when the police roused
him from his sleep at 8:00 a.m., and took him to the police
station without his parents. Hardaway, 302 F.3d at
760. He was not handcuffed and remained in an unlocked
interrogation room until he was interviewed at 10:30 am and
then interrogated for six hours, given a break for a few
hours, and then interrogated again for another four hours. A
youth advocate joined the interrogation but never once spoke
up to aid Hardaway. A clearly torn panel of this court could
not find that the state appellate court erred when it held
that the confession was voluntary, even if we might have come
to a different conclusion had we been deciding the matter
ourselves in the first instance.
There is no doubt that Hardaway's youth, the lack of a
friendly adult, and the duration of his interrogation are
strong factors militating against the voluntariness of his
confession; indeed, it seems to us that on balance the
confession of a 14-year-old obtained in those circumstances
may be inherently involuntary.
Id. at 767. Nevertheless, we concluded, the state
court had considered the relevant factors and because
"the weighing of factors under the totality of
circumstances test is a subject on which reasonable minds
could differ, " we could not hold that the state court
had been unreasonable. Id. The state court, we
explained, noted that the officers did not psychologically
trick the defendant or misrepresent evidence, but rather
Hardaway confessed after being confronted with truthful
contradictory evidence. The state court carefully considered
Hardaway's nineteen previous encounters with law
enforcement, the fact that the police not only read Hardaway
his rights but that Hardaway was able to articulate them back
in his own words, and that Hardaway did not have any mental
incapacity or other mental infirmities. Id. at
767-78. Thus the state court seemed to have considered
sufficiently the interaction between Hardaway's
limitations and the interrogation.
in Carter v. Thompson, 690 F.3d 837, 844 (7th Cir.
2012), despite the fact that we were "unsettled"
that a 16-year-old was in the police station for fifty-five
hours without a blanket, pillow, change of clothes, or access
to a shower, and without being told she could leave, we could
not find that the state courts had been unreasonable in
finding that her confession was voluntary. Id. The
state court had considered all of these factors, along with
the fact that the police read Carter her rights, her parents
were with her for two of her three confessions, and her
confession occurred impromptu, as she was on her way to the
in Etherly v. Davis, 619 F.3d 654, 662 (7th Cir.
2010), as amended on denial ofreh'g and reh'g en
banc (Oct. 15, 2010), we reversed a district court grant
of a writ of habeas corpus, disagreeing with the lower
court's assessment that the Illinois appellate court had
not properly addressed and considered all of the relevant
factors in its analysis, noting that reasonable jurists could
disagree about the weight to assign to each factor.
Id. The Illinois appellate court, we concluded,
evaluated and discussed the importance of the defendant's
age, whether a friendly adult was present, his intellectual
disability, lack of criminal background, whether police
engaged in physical or psychological coercion, and the
defendant's assertion that he understood his Miranda
rights. Id. at 662. And despite agreeing that the
state appellate court had been unreasonable in concluding
that a fifteen-year-old, with no prior criminal experience,
should be expected to seek the advice of a youth officer,
this court concluded that this "lone error is not of
such magnitude as to result in an unreasonable application of
Supreme Court precedent under AEDPA." Id. at
general, our cases demonstrate that we show great deference
to state court adjudications where it is clear that the state
court considered the totality of the circumstances
cumulatively, in light of the defendant's age and
intellect, and without omitting or overlooking relevant
factors bearing on the voluntariness of a juvenile
confession. Murdock, 846 F.3d at 210-11; Gilbert
v. Merch., 488 F.3d 780, 794 (7th Cir. 2007);
Ruvalcaba v. Chandler, 416 F.3d 555, 561-62 (7th
in the cases above, where the state court sufficiently
considered a totality of the circumstances, as cases like
Fare and Carter require (Fare, 442
U.S. at 725; Carter, 690 F.3d at 843), we see no
similar evidence that the state court did so in Dassey's
case. For example, despite the Supreme Court's emphasis
on the importance of access to an adult ally in
Gallegos, the Wisconsin state court in this case
never discussed the fact that Dassey was alone, other than to
note that "Dassey's mother, Barbara Janda, agreed to
the second interview but declined the offer to accompany
Dassey." State v. Dassey, 2013 WL 335923 at
in this case, in comparison to Fare and
Harda-way (Fare, 442 U.S. at 725; Hardaway,
302 F.3d at 767), the state appellate court did not view
interrogation techniques as a totality factor overlaid with
Dassey's age and intellect. It merely looked at the
investigators' comments in isolation and opined, as it
would with an adult of ordinary intelligence, that "[a]s
long as investigators' statements merely encourage
honesty and do not promise leniency, telling a defendant that
cooperating would be to his or her benefit is not coercive
conduct." State v. Dassey, 2013 WL 335923 at
unlike in Etherly where the state court made a
single error-unreasonably concluding that the absence of a
youth officer was inconsequential (Etherly, 619 F.3d
at 662-63)-the state court's error here was not a
solitary one, but rather a failure of the very essence of
Supreme Court precedent requiring a court to consider the
totality of the circumstances and to consider juvenile
confessions with special caution.
determination of voluntariness is so outside the realm of
reasonableness, a federal court may grant the writ, as it did
in A.M. v. Butler, 360 F.3d 787, 801 (7th Cir.
2004). The court in A.M. recognized that
"[e]ven in the context of federal habeas, deference does
not imply abandonment or abdication of judicial review.
Deference does not by definition preclude relief."
Id. (citing Miller-El v. Cockrell, 537 U.S.
at 340). And it concluded that the confession of an
inexperienced 10-year-old who had no adult advocate was
simply not reliable where the detective continually
challenged the boy's statements and accused him of
lying-a legitimate interrogation technique in adults, but one
likely to lead a young boy to confess to anything.
A.M., 360 F.3d at 800-01. And in fact, that is just
what occurred in this case- detectives continually challenged
Dassey's statements and accused him of lying until, as we
will describe, his confession became a litany of
inconsistencies-shirts that changed color, fires that began
and ended at different times, garbage bags that sat in
burning fires without melting, trucks that were seen in
garages and then not seen in garages, bloody crime scenes
without a trace of blood remaining, metal handcuffs that left
no marks on the bed posts, etc. But again we emphasize that
because of the requirements of the totality of the
circumstances, these cases provide only the broadest of
guidelines on determining voluntariness, see Mincey,
437 U.S. at 401, and our full analysis of the voluntariness
of the confession, toward the end of this opinion, will
demonstrate why no reasonable court could have come to the
conclusion that Dassey's confession was voluntary. As
will become clear through the entirety of this opinion, we
can point to no solitary statement, factor, or interrogation
question that rendered Dassey's confession involuntary
(although there were certainly some individual leading
questions that came close), but rather it was death by a
thousand cuts. Because of the cumulative effect of these
coercive techniques-the leading, the fact-feeding, the false
promises, the manipulation of Dassey's desire to please,
the physical, fatherly assurances as Wiegert touched
Dassey's knee etc.-no reasonable court could have any
confidence that this was a voluntary confession.
No single factor is determinative.
Courts must pay close attention to voluntariness when the
defendant has no adult ally present.
have now concluded, the totality test prohibits any one
factor from being determinative of voluntariness.
Murdoch, 846 F.3d at 209. Some courts, including
this one, nevertheless have found particularly distressing
the idea of minors waiving rights and confessing without an
adult ally present. Those courts therefore have toyed with
the idea of a per se rule that children under a certain age
cannot waive rights or make a voluntary confession without a
parent, guardian, or legal representative present. See
e.g., Hardaway, 302 F.3d at 764. Our conclusion in
Hardaway, however, was that there is no support in
clearly established federal law for such a per se rule where
Supreme Court precedent has been clear that courts instead
must base their assessment on the "totality of the
circumstances." Id. (citing Fare, 422 U.S. at
726). "Youth, " we concluded, "remains a
critical factor for our consideration, and the younger the
child the more carefully we will scrutinize police
questioning tactics to determine if excessive coercion or
intimidation or simple immaturity that would not affect an
adult has tainted the juvenile's confession."
Hardaway, 302 F.3d at 765. See also, J.D.B. v.
North Carolina, 564 U.S. 261, 269, 280 (2011); In re
Gault, 387 U.S. at 45.
state appellate court applied no extra care to Das-sey's
confession based on his lack of an adult advocate. Youth was
not a "critical factor" in its analysis; indeed it
was not a factor at all. It did not consider the
interrogation techniques in light of Dassey's lack of an
adult advocate nor acknowledge how Dassey's clear
confusion during parts of the interview could have been aided
by an adult ally who might have noticed Dassey's
confusion and the manipulation. It did not mention how,
immediately after Dassey's mother came to his side, he
suddenly realized that the investigators "got to my
head, " and he worried that he would be caught in a
lie-having confessed to a crime he did not commit. He asks
his mother, "What'd happen if he says something his
story's different. Wh-he says he, he admits to doing it?
... Like if his story's different, like I never did
nothin' or somethin.'" R. 19-25 at 148.
Courts must pay close attention to voluntariness when
manipulative interrogation techniques are used, particularly
on the young and intellectually challenged.
manipulative interrogation techniques, likewise, are not per
se coercive, but among the circumstances that a court must
evaluate in total to determine whether a particular
defendant's free will has been overcome. To be clear,
many manipulative interrogation techniques, in and of
themselves, are not unconstitutional. "Trickery, deceit,
even impersonation do not render a confession
inadmissible." United States v. Villalpando,
588 F.3d 1124, 1128 (7th Cir. 2009) (citing U.S. v.
Kontny, 238 F.3d 815, 817 (7th Cir. 2001)). The law
permits the police to "pressure and cajole, conceal
material facts, and actively mislead-all up to limits."
United States v. Rutledge, 900 F.2d 1127, 1131 (7th
Cir. 1990). That limit is exceeded, however, when the
government gives the suspect information that destroys his
ability to make a rational choice "for example by
promising him that if he confesses he will be set free."
Aleman v. Vill. of Hanover Park, 662 F.3d 897, 906
(7th Cir. 2011). And, as we describe further below, those
limits depend on the characteristics of the defendant. False
promises that a suspect will be treated leniently by the
courts, we have noted, have "the unique potential to
make a decision to speak irrational and the resulting
confession unreliable ... because of the way it realigns a
suspect's incentives during interrogation."
Villalpando, 588 F.3d at 1128; United States v.
Montgomery, 555 F.3d 623, 629 (7th Cir. 2009) ("a
false promise of leniency may be sufficient to overcome a
person's ability to make a rational decision about the
courses open to him."). See also United States v.
Nichols, 847 F.3d 851, 857 (7th Cir. 2017) ("a
government agent's false promise of leniency may render a
statement involuntary."); Montgomery, 555 F.3d
at 629 ("[g]iven the right circumstances, a false
promise of leniency may be sufficient to overcome a
person's ability to make a rational decision about the
courses open to him."); Hadley v. Williams, 368
F.3d 747, 749 (7th Cir. 2004) (police may not extract a
confession in exchange for a false promise to set the
attach no nefarious purposes to the investigators who were
using established interrogation techniques. And, in any
event, the investigator's purpose or subjective view of
the coercive nature of the interrogation is not relevant. It
is how those interrogation techniques interact with the
defendant's characteristics that determines the
voluntariness of a confession. A seasoned criminal who has
volleyed with interrogators many times before may not be
swayed at all by an explicit but false claim of leniency, but
a young, unsophisticated juvenile might believe, with just
the slightest hint of an offer of leniency, that if he
confesses to murder "God and the police would forgive
him and he could go home in time for his brother's
birthday party." A.M., 360 F.3d at 794.
Constitution requires that a confession be voluntarily given.
The dissent criticizes the panel opinion for relying on the
subjective perception of a defendant in determining the
voluntariness of his confession, but this is, in fact, what
the totality of the circumstances test requires. A
thirty-year-old with a law degree would not believe a police
officer's assurance that if he confesses to murder he
will go punishment free, but yet the ten-year-old, A.M. did
just that. Id. A consideration of the totality of
the circumstances requires the court to consider
"whether the techniques for extracting the statements,
as applied to this suspect, are compatible with a
system that presumes innocence and assures that a conviction
will not be secured by inquisitorial means as on whether the
defendant's will was in fact overborne." Miller
v. Fenton, 474 U.S. at 116 (emphasis added). We need not
accept a defendant's after-the-fact proclamation of a
lack of voluntariness, but the totality of the circumstances
framework allows a court to consider the evidence about the
defendant's ability to comprehend and contemporaneous
evidence of what he actually did or did not understand. If
the Constitution requires that a confession be voluntary,
then it can only be so if the particular defendant sitting in
the interrogation was not, in fact, coerced.
other words, the totality of the circumstances test dictates
that coercive interrogation on the one hand, and suspect
suggestibility, on the other, are on inverse sliding
scales-the more vulnerable or suggestible a suspect, the less
coercion it will take to overcome her free will. This is not
a statement of a new test, but rather the logical conclusion
of the totality of the circumstances review itself.
Therefore, to determine whether a promise is coercive as a
legal matter, a court cannot consider the promise alone, but
rather the promise in conjunction with the characteristics of
the suspect. Again, the Supreme Court's seminal case
advises, "[t]hat which would leave a man cold and
unimpressed can overawe and overwhelm a lad in his early
teens." Haley, 332 U.S. at 599. And the Supreme
Court precedent requires lower courts to consider
interrogation techniques as applied to the particular
defendant at hand. Miller v. Fenton, 474 U.S. at
dissent accuses us of redefining what counts as a false
promise of leniency, noting statements by the police that
passed muster with courts in other cases. The point of the
totality test, however, is not to evaluate any promise of
leniency in isolation, but rather in light of the specific
characteristics of the defendant, that is, "as applied
to this suspect." Id. (emphasis
added). The career criminal will not interpret a promise in
the same manner as an inexperienced and intellectually
disabled teen. The state court, however, did not view the
coerciveness of the interrogation techniques in light of
Dassey's personal characteristics as the totality test
dissent states that the majority decision will make police
investigations "considerably more difficult, " and
asks "what should police do the next time an
investigation leads to a teenager with some intellectual
challenge?" (post at 107). To the extent that the result
makes police investigations more difficult, it is not because
of any change we have made to the law, but rather because the
Supreme Court requires a totality of the circumstances
framework that gives special caution to confessions of
juveniles, the intellectually disabled and other defendants
with vulnerable characteristics.
benefits of the Supreme Court's requirements expand
beyond protecting the constitutional rights of defendants. It
is of no help to the advancement of justice and to removing
dangerous killers from the streets, if police coerce
confessions from innocent suspects. Teresa Halbach and her
family are not served if the wrong defendant spends his life
in prison. Teresa's family deserves to know that the
police have found and incapacitated the right
perpetrator-that no other family will be forced to grieve as
they have because a brutal killer remains at large. The
answer to the dissent's inquiry about what police
officers are to do in such a situation as Dassey's,
therefore, comes from a long line of requirements that courts
have established for protecting the rights of defendants
during police interrogations. Specifically, in such a case,
the police should, as the Supreme Court requires, ensure that
such a suspect "has the capacity to understand the
warnings given him, the nature of his Fifth Amendment rights,
and the consequences of waiving those rights."
Fare, 442 U.S. at 725; see also Murdock,
846 F.3d at 209; Hardaway, 302 F.3d at 762. And a
court reviewing a challenge to a confession must assess the
totality of the circumstances to assure itself that the
defendant voluntarily confessed. This the appellate court did
The state court in this case did not apply a totality of the
state court of appeals in this case affirmed the trial
court's determination that Dassey's confession was
not involuntary. Dassey v. Dittmann, 2013 WL 335923
at *2. As the last state court to speak to the issue, it is
that court's decision that we review. Makiel,
782 F.3d at 896. As set forth in the fact section above,
after noting the requirement to consider the voluntariness of
the confession using the totality of the circumstances test,
the state appellate court addressed the voluntariness of the
confession in two short paragraphs. The first paragraph
(¶ 6) consisted of a list of Dassey's
characteristics and some general characteristics of the
interrogation including: Dassey's limited intelligence,
the comfortable interrogation room, the Miranda
warnings, his affect during the interview, the
investigators' normal speaking tones, the lack of
"hectoring, threats or promises of leniency, " the
pleas for honesty, and the investigators' attempts to
build rapport. State v. Dassey, 2013 WL 335923 at
*2. In the second paragraph (¶ 7), the court of appeals
concluded that the trial court's finding of no coercion
was not clearly erroneous. "As long as investigators
statements merely encourage honesty and do not promise
leniency/' the court reasoned, "telling a defendant
that cooperating would be to his or her benefit is not
coercive conduct. Nor is professing to know facts they
actually did not have." Id.
the statements in this second paragraph are accurate as
applied to an adult of ordinary intelligence, they do not
acknowledge the court's obligation to consider juvenile
confessions with caution and they do nothing to evaluate the
totality of the circumstances. An evaluation requires that
the court view the interrogation tactics in light of the
defendant's situation and characteristics. A court has
not applied the totality of the circumstances test simply by
stating its name and by noting that, in the ordinary course
of dealings, a police officer may use deceptive techniques.
Applying a rule of law does not require much, but it requires
more than just parroting the words of the rule.
addition to failing to consider the factors in light of the
totality of the circumstances, the state appellate court
failed to consider some key factors at all, even
individually. The dissent correctly notes that a state court
need not give all of its reasoning for its outcome. And the
totality of the circumstances does indeed give state courts a
somewhat wide berth for their considerations. It is true that
"[t]he more general the rule, the more leeway courts
have in reaching outcomes in case-by-case
determinations." Yarborough v. Alvarado, 541
U.S. 652, 664 (2004). But the generality of the rule does not
mean that a state court may forsake it completely, and it
does not eradicate the general notion that "The standard
[for habeas corpus relief is demanding but not insatiable ...
deference does not by definition preclude relief."
Miller-El v. Dretke, 545 U.S. at 240.
totality of the circumstances standard means anything, it
means that a state court must, at a bare minimum, do what the
rule requires and consider the totality of the circumstances.
A state court need not say much, but the less it says, the
less a federal court can ascertain that the state actually
applied a totality of the circumstances evaluation.
the very least a court assessing the voluntariness of a
juvenile's confession must evaluate whether deceptive
interrogation techniques overcame the free will of this
particular defendant. Missing entirely from the state
appellate court's analysis is any recognition that
deception that is permissible when interrogating the average
adult person of ordinary intelligence, might not be
permissible with someone of Dassey's age and intellect.
For example, the state appellate court never considered
whether the statement "the truth will set you free"
would be considered idiomatically or literally by someone of
Dassey's age and limitations. Indeed if taken literally,
that statement is the exact kind of promise of leniency that
courts generally find coercive. Hadley, 368 F.3d at
749 (police cannot extract a confession in exchange for a
false promise to set the defendant free); Rutledge,
900 F.2d at 1129 (same).
there any analysis of the key fact that Dassey had no adult
ally with him during the interrogation. Although not
dispositive, it is one of the most critical factors in
evaluating voluntariness of juvenile confessions.
Gallegos, 370 U.S. at 55; Hardaway, 302
F.3d at 765 (noting that absence of a friendly adult is not
dispositive of involuntariness, but a key factor that can tip
the balance against admission). A friendly adult can ensure
that a minor defendant can make critical decisions, for
example, like the decision to waive Miranda rights.
See Hardaway, 302 F.3d at 764. She could ensure that
police do not take advantage of a minor's youth or mental
shortcomings. U.S. v. Bruce, 550 F.3d 668, 673
(2008). A friendly adult can level the playing field, help
the child understand what the consequences of his confession
might be, and help him understand his constitutional rights.
Gilbert, 488 F.3d at 791-92.
Dassey's mother been present in the room with him, she
might have noticed if Dassey were guessing as to answers,
alerted him to the consequences of incriminating himself,
reminded her son that the investigators were not acting as
his friends or advocates, and helped him distinguish between
the actual truth and the information that the investigators
were feeding him.
we cannot know if she would have done any of these things,
but we have one hint that she might have: At the end of the
confession, after she was allowed to see Dassey and after he
said "they got to my head, " she immediately asked
the investigators, "Were you pressuring him?" R.
19-25 at 148. As we described above, Dassey became anchored
and immediately realized, "They got to my head, "
as soon as his mother entered the room. R. 19-25 at 148. But
whether she would have helped Dassey or not, it confirms that
Dassey had no protection against manipulation by the
officers. The absence of Dassey's mother or another
friendly adult should have been a critical piece of the
totality consideration by the state court and it was not even
mentioned in the state court's analysis of the
voluntariness of Dassey's confession.
the state appellate court did not consider Dassey's
suggestibility while assessing the coercive nature of the
claim, despite the fact that one entire day of trial
testimony consisted of experts assessing Dassey's mental
capacity and, in particular, his suggestibility. Given the
instances we discuss below of investigators steering him to
particular answers, this was a critical oversight.
directive from the Supreme Court to consider the totality of
the circumstances ensures that this particular defendant
voluntarily confessed. It is no use to note that telling a
defendant that cooperating would be to his benefit is not per
se coercive, if the words used to convey that notion sound
like a promise of leniency to this particular defendant.
Likewise, falsely claiming to have knowledge is not per se
coercive, unless it is used in a manner that overcomes the
free will of this particular defendant. The state court did
not, in any respect or manner, consider the interaction of
the interrogation techniques with Dassey's youth,
intellectual limitations, suggestibility, lack of experience
with the police, lack of a friendly adult, and naivete.
there was no "totality" in this "totality of
the circumstances" test at all. There was no assessment
of the cumulative nature of the interrogators' promises,
no assessment of the fact-feeding in light of Dassey's
limited intellectual abilities, no assessment of the absence
of a friendly adult who could protect Dassey and advocate for
his interests, no assessment of Dassey's confusion in
response to many questions, or his apparent desire to please
the interrogators with his answers, no assessment of how his
answers changed and why, and no assessment of his repeated
statements that he expected that, in return for his
statements, he would be "set free" to return to
school at the conclusion of the interrogation. It is not that
the state court did not do enough; we can have no confidence
that it considered the totality of the circumstances at all.
different courts and judges might disagree as to "how
much weight to assign each factor on facts similar to those
in [any Petitioner's] case" (Etherly, 619
F.3d at 662), a reasonable jurist must, in fact, consider the
relevant facts surrounding a confession, and consider their
combined and cumulative effect. Id. A consideration
of the totality of the circumstances requires the court to
consider "whether the techniques for extracting the
statements, as applied to this suspect, are
compatible with a system that presumes innocence and assures
that a conviction will not be secured by inquisitorial means
as on whether the defendant's will was in fact
overborne." Miller v. Fenton, 474 U.S. at 116
The voluntariness of Dassey's confession analyzed in
light of the totality of the circumstances.
addition to failing to apply a totality of the circumstances
analysis to the facts of this case, as required by the
Supreme Court, the state court acted unreasonably when it
determined that-given the totality of the circumstances-
Dassey's confession was voluntary. The state appellate
court's finding that there were no promises of leniency
or other factors that overcame Dassey's free will was
against the clear weight of the evidence. 28 U.S.C. §
2254 (d)(2); Ward v. Sternes, 334 F.3d 696, 704 (7th
§ 2254 (d)(2) requires a federal court on habeas review
to look at those facts to determine whether the state court
proceedings "resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding."
Id. Moreover, "[w]here a state court's
decision is unaccompanied by an explanation, the habeas
petitioner's burden still must be met by showing there
was no reasonable basis for the state court to deny
relief." Harrington v. Richter, 562 U.S. 86, 98
(2011). And a federal court reviewing a habeas petition under
§ 2254(d), "must determine what arguments or
theories supported or, as here, could have supported, the
state court's decision; and then it must ask whether it
is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior decision of this Court." Id. at 102. Such
a determination does not turn habeas review to de
novo review, as the dissent suggests. It is, to the
contrary, precisely what the Supreme Court requires.
Id. Because the state appellate court's opinion
failed to give any explanation other than a listing of
Dassey's characteristics and the circumstances of the
interrogation, in reviewing the reasonableness of the
determination of the facts in light of the evidence
presented, we look to see what theories could have supported
the state court's conclusion.
The message sent to Dassey: "The 'truth' is what
we want you to say, and that is what will set you
interview could be viewed in a psychology class as a perfect
example of operant conditioning. As we will demonstrate
through myriad examples below, the theme set forth for Dassey
was twofold, that "honesty is the only thing that will
set you free/' R. 19-25 at 17, and that honesty would
appease the investigators, avoid conflict, and allow them to
be Dassey's "friend, " to "go to bat for
[him]" to "be in his corner." Id. at
16, 25. In other words, the key to walking out a free person,
avoiding the conflict that his socially avoidant personality
feared, and getting back in time for school lunch was
"honesty." But Dassey quickly learned that
"honesty" meant telling the investigators what it
was that they wanted to hear. When they did not like his
answer, they told him things like "Come on Brendan. Be
honest. I told you that's the only thing that's gonna
help ya here;" and "[w]e don't get honesty
here, I'm your friend right now, but I gotta believe in
you and if I don't believe in you, I can't go to bat
for you." Id. at 23. Every time the
investigators said "tell us the truth" or "we
know what the truth is, " Dassey altered his story just
a bit. As Dassey got closer and closer to the answers the
investigators were looking for, his statements were rewarded
with affirmations like "that makes sense. Now we believe
you, " and in doing so, they cemented that version of
the facts. See, e.g., Id. at 73. But when Dassey
deviated from the expected narrative, the investigators
either offered no reward, ignored the comments, steered him
away, or let him know that they thought he was not telling
the truth. In short, as the examples clearly demonstrate,
"be honest, " "tell the truth, " and
similar pleas became code for "guess again, that is not
what we wanted you to tell us." And "now we believe
you" and "that makes sense" became code for
"that's what we want to hear. Stop right
there." Dassey's reaction to these cues is not
unique. Experts on confessions have noted that "though
courts are reluctant to find that police officers have
overwhelmed a child's will by repeatedly admonishing the
child to 'tell the truth, ' many children will
eventually hear 'tell the truth' as, 'tell me
what I want to hear.'" Kenneth J. King, Waiving
Childhood Goodbye: How Juvenile Courts Fail to Protect
Children from Unknowing, Unintelligent, and Involuntary
Waivers of Miranda Rights, 2006 Wis. L. Rev. 431, 472
(2006). Scholarly research such as this helps inform our
understanding that the totality of the circumstances analysis
means something different when applied to juveniles. It
supports the reasoning behind the Supreme Court's
admonition to view juvenile confessions with special caution.
See J.D.B., 564 U.S. at 269.
investigators' "honesty is the only thing that will
set you free" theme established a pattern whereby
Dassey, seeking the promised result-freedom, or avoidance of
conflict- searched for the narrative that the investigators
would accept as "the truth." Dassey found "the
truth" either by stumbling upon it or by using the
information the investigators had fed him. The promise of
freedom became linked to the idea of truth which became
defined as that which the investigators wanted to hear. Once
this prompt-and-response pattern is noticed, it is impossible
to read or view Dassey's interrogation and have any
confidence that Dassey's confession was the product of
his own free will rather than his will being overborne. Any
reader who doubts that this pattern casts insurmountable
doubt on the voluntariness of Dassey's confession need
only watch or read the interrogation with this
"key" in hand.
following exchange is a prime example of the investigators
telling Dassey that he needs to change his story and how he
should do it, followed by that exact change. Prior to the
interaction below, Dassey confirmed approximately eight
times, often insistently, that when he got home from school
on October 31, he saw Halbach and Avery talking on
Avery's porch. R. 19-25 at 19-20, 27-28, 90. In fact, the
officers grilled him asking "And you're sure you saw
that?" Id. at 20; "did you really see
those two talking on the porch" Id. at 27;
"You're 100% on that?" Id. at 28. And
each time he answered affirmatively. Yet, once they
repeatedly cued him that they did not like his answer and
that he must "tell the truth"-in other words, tell
them what they wanted to hear-he altered his message exactly
as he was instructed:
Fassbender: OK, and you said you walked down th [sic] the
road to your house, (Brendan nods "yes") and you
said that you saw Steven on the porch.
Brendan: (nods "yes") uh huh
Fassbender: Mark and I are havin' a problem with that.
Now if, I'm not, I'm not say in' that I'm
gonna put words in your mouth so we're havin' a
problem with that. ... the time periods aren't adding up.
They're not equaling out. We know when Teresa got there.
(Brendan nods "yes") Um, and, and I know I
guarantee ya Teresa's not standing on that porch when you
come home from school. I ju [sic] I don't see that. ...
Somethin' is not adding up here and you need to tell us
the truth. Did this all start right when you came home from
school? You need to tell me, you need to be honest with me. I
can't tell ya, 11 can't tell ya these things. I can
tell ya we don't believe you because there's some
things that are wrong but you've gotta tell me the truth.
This is you know getting' serious here now, OK? (Brendan
nods "yes") Tell me what happened when you got
Brendan: I got off the bus. I walked down the road and when I
got to that thing, ah, the other house I just sittin'
there for nothin' [sic]. I could see her jeep in the
garage just sittin' there and I didn't see Steven and
her on the the porch.
Wiegert: You, you did or you didn't?
Brendan: I didn't.
Fassbender: Did not, OK.
R. 19-25 at 90-91 (emphasis added).
state presents these changes as a normal part of a
confession. That is, that a defendant tells one version of
events, backtracks as he is presented with inconsistencies
and errors in his story, and reveals more and more as the
interrogators coax the truth out of him. See, e.g.,
Reply Brief of Respondent-Appellant at 1 ("As with many
difficult admissions, the truth did not come out all at once,
but little-by-little in fits of honesty.") But again, a
careful review of the confession does not reveal this to be a
story gaining clarity over time. Unlike the ordinary course
of a confession in which the narrative increases in clarity
as the suspect reveals more information, this interrogation
was just the opposite. Every time the interrogators protested
the veracity of Das-sey's account or fed Dassey
information, his story changed. If one sits in front of the
taped confession with a legal pad and tries to sketch out the
details and timeline of the crime, the resulting map is a
jumble of scratch outs and arrows that grows more convoluted
the more Dassey speaks. In fact, despite what the State
describes as a detailed confession, it has never been able to
map out a coherent timeline of the crime, or to figure out in
what order or where many of the events occurred. See
Brief of Respondent-Appellant at 9, n.3 (stating, in a
footnote to the facts, "the narrative recounts details
from Dassey's confession in the most likely timeline,
consistent with other evidence at trial. It is possible that
some parts of the story are out of order/' and describing
several items that are unclear).
one think the details and timeline ever solidified, they did
not. It only became more convoluted when Dassey appeared,
without counsel, at the May 13 interrogation, after his
lawyer's own investigator, O'Kelly, had interrogated
him. As we noted, that interrogation was not used at trial
and the details are not discussed by the district court or by
the parties. It was used, however, as part of the
postconviction hearing, and is part of the record.
See R. 19-34. At the post-conviction hearing
Wisconsin District Attorney Ken Kratz described that May 13
interrogation as a "fiasco" in which Dassey gave
"inconsistent statements." R. 19-26 at 97. Details
both significant and insignificant changed, not only from the
prior confession on March 1, but also within minutes of being
disclosed at the May 13 interrogation. Dassey changed details
about things as benign as riding his bike to things as
important as whether or not he cut Halbach's throat. R.
19-34 at 7, 25. Dassey was inconsistent about how Halbach was
restrained, about whether he saw Halbach's vehicle, the
order of events, facts about her body, where various events
occurred, where the murder weapon came from, what it looked
like, and what it was used for, where Halbach was stabbed,
and, as we will see in a later example, whether he cut
Halbach's hair or not. Dassey is not merely a poor story
teller who forgets details and orders, but rather the details
and the order changes in ways that do not amount to confusion
and error but rather a "fiasco" of a story-until,
as we will see, the investigators steer him to the version of
the story that fits their theory of the case.
example, in the March 1 interrogation, on several occasions
the investigators tried to pin down the constantly changing
order of events. The events are gruesome, serious, and
distinct, and the order is critical to how they were
performed. For example, it is far different to choke a victim
whose throat has been cut than to cut the throat of a victim
who has been choked. Nevertheless, Dassey cannot keep these
details straight. Initially Dassey said that Halbach was
stabbed, tied up, and then choked R. 19-25 at 54-55. Moments
later he stated that she was tied up, then stabbed, then
choked Id. at 56, and a few transcript pages later
he assures the investigators that he is "sure" that
she was stabbed, choked, and then tied up Id. at 59;
but a few pages after that he stated that she was stabbed,
tied up and her throat was cut Id. at 64. Finally,
he circles back to a re-telling in which he says that Halbach
was tied up, stabbed and then cut Id. at 101. At one
point the investigators are desperate to get the order right:
Fassbender: Brendan, we're in the bedroom yet, OK?
(Brendan nods "yes") She's handcuffed yet
right? (Brendan nods "yes") And you're
tellin' me if, obviously correct me if I'm wrong,
what we heard. (Brendan nods "yes"). While
she's handcuffed and alive, he stabs her.
Brendan: (nods "yes") mm huh.
Fassbender: Chokes her? Right? (Brendan nods "yes")
Is that right?
Brendan: (nods "Yes") mm huh.
Fassbender: And then he has you cut her neck?
Id. at 66. But just when the investigators thought
that they had the order down, at the end of the interview
they asked one more time to lock it in and the order falls
Wiegert: Well let's, let's just go back a little bit
OK? Tell us what exactly happened to her, what order it
happened in. You said there were basically three things prior
to you guys shooting her. Explain those in, in the order that
Brendan: Starting with when we got in the room?
Wiegert: Yeah, what you guys did to her.
Brendan: We had sex with her
Brendan: Then he stabbed her.
Wiegert: Then who stabbed her?
Brendan: He did.
Wiegert: Who's he?
Wiegert: OK, and then what?
Brendan: Then I cut her throat.
Brendan: And then he choked her and I cut off her hair.
Wiegert: OK. So he choked her after you cut her throat?
Brendan: (nods "yes") mm huh.
Id. at 132-33. This is not a confession that becomes
increasingly more coherent and clear over time, as the
defendant reveals more and more of the truth. To the
contrary, although Dassey's culpability throughout these
changes remains the same, the horrific story becomes less and
less coherent until by the end Avery is choking a woman who
has already had her throat cut. Yet through all of this
tying, stabbing and throat cutting, Dassey insists he did not
get any blood on himself:
Wiegert: You said that you had cut her
throat. (Brendan nods "yes") Here's the thing
Brendan, when you, cut somebody's throat, they bleed a
lot, (Brendan nods "yes") OK? Am I right?
Brendan: (nods "yes") Yeah.