No matter how you spin it, Brendan Dassey's confession was unreliable (Part 3)

In law school, they teach us about established legal theories and landmark court decisions such as Miranda and the like, which are supposed to set the rules for the way we interact among ourselves as citizens and the way the government interacts with us. But these principles are on paper, and what’s on paper is not always reflected in everyday reality.

Anyone who’s gone to law school is all too familiar with the law exam “hypo.” In these hypos the student is typically presented with a hypothetical scenario and must apply the legal rules he or she has learned in the class to the set of facts provided to formulate a conclusion about the likely outcome.

In Criminal Procedure class, it’s common to be presented with an exam hypo involving an imaginary suspect who has been stopped, searched, or interrogated by police. Details are provided from which the student must ascertain, based on the officer’s behavior and statements, whether the detention, search, or interrogation was legally permissible, and therefore whether any evidence obtained from it may be used against the imaginary defendant in a criminal prosecution.

If the police interrogation of Brendan Dassey that took place on March 1, 2006, and his resulting signed confession were a hypo on a law exam, there would be no question that it was an involuntary and inadmissible confession. He was a 16-year-old with the mental state of a child years younger. He was questioned without the presence of a supportive adult. He was deliberately misled by his interrogators and fed answers to questions. It’s almost textbook.

But you quickly learn the real world is very different from Law Exam World. In the real world, law enforcement likes to get its man and judges have each other's backs.

In Brendan’s interview tapes, you can witness the detectives assuring him they are his friends and want to help him, that everything will be alright for him if he tells them what they want to hear, and that they already know what happened to Teresa Hallbach. An adult of normal intelligence, maybe even a 16-year-old of normal intelligence, might be a bit naturally suspicious of these claims and cautious about what he says. But Brendan was not an average 16-year-old.

In his mind, he likely believed that the less he said to the investigators, the more trouble he would be in, and the more he said, the less trouble he would be in. Which is the opposite of how police interrogation works. He believed them when they suggested that he would be able to leave the station and go on with his life if he gave them as many details as possible about Hallbach’s murder and his role in it. He likely thought he was sealing Steven Avery’s fate, not his own.

As such, it is impossible to know which statements were true and which he was making up to please these men. That some, most, or even all may have been true is not the point. The point is the confession is unreliable.

It bears noting that while evidence exists tying Avery to a crime, not a shred of physical evidence was ever produced that ties Brendan to any crime, be it rape or murder. Nor was any evidence produced that Teresa Hallbach was bound, raped, or murdered on Steven Avery’s bed, as Brendan’s interrogators succeeded in getting him to “confess.” This is not an illegally obtained confession supported by other facts, this is an illegally obtained confession supported by nothing.

The labyrinthian judicial appeals process is dizzying to try to comprehend especially for laypersons, but I’ll try to break down the procedural history.

Brendan appealed his 2007 murder conviction to the Wisconsin appellate court, which refused to throw out his confession and upheld his conviction. After the state supreme court refused to hear his case and he had exhausted his state appeals, in 2014 he petitioned the federal district court in Wisconsin for a writ of habeas corpus based on violations of his due process rights. Judge William E. Duffin found his confession involuntary and reversed his conviction, a decision which was later affirmed by a three-judge panel of the Seventh Circuit Court of Appeals in Chicago.

Wisconsin officials petitioned the Seventh Circuit for a rehearing en banc, which is consideration of the case by the full nine-member court, or as close as possible to the full court. At the state’s request, Brendan remained imprisoned pending outcome. On December 8, in a divided decision by seven members on the court, the en banc panel reversed all the prior rulings and held that his confession was admissible after all, so his conviction still stands. Four judges voted with the majority and three judges dissented.

I will break down what they all said and the reasons they decided the way they did in my next post.

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