Brendan Dassey Loses Federal Court of Appeals Review by 4-3 Decision

 Posted on December 15, 2017 in Criminal Defense

On December 8, 2017, after twice prevailing in his habeas corpus case at the federal District Court and before a three judge panel of the Seventh Circuit Court of Appeals in Chicago, an en banc (entire) Seventh Circuit issued a 4-3 decision reversing itself, and despite the facts and applicable law, denied Brendan Dassey habeas relief. The next step for Mr. Dassey is the United States Supreme Court.

The 4-3 majority opinion in Dassey v. Dittmann held that while the record contained factors that would support finding that his confession was involuntary, including the fact that the defendant was 16 at time of confession, that he had IQ in low 80s, that his confession contained inconsistencies, and that interrogators gave broad assurances that honesty would produce leniency, the slim 4-3 majority found that this was not enough. The slip opinion of the Seventh Circuit can be found at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D12-08/C:16-3397:J:Hamilton:aut:T:fnOp:N:2074184:S:0.

The majority in the en banc panel, which was short several judges, found that the record contained factors suggesting that Mr. Dassey’s confession was voluntary, including the fact that the interrogators gave no specific promise of leniency, that he spoke freely to interrogators with his mother's consent after receiving Miranda warnings, that interrogations took place without physical coercion or intimidation, and that the defendant provided many damning details in response to open-ended questions. This they said, outweighed the errors two prior court decisions found clearly existed. As such, the state appellate court's determination that Dassey's confession was voluntary was reasonable, and federal courts should not declare state-court factual determinations to be unreasonable merely because federal courts would have reached different conclusion. Translated, this type of analysis means that clearly coercive and illegal interrogation procedures, which, it has been found, can produce false confessions, are acceptable, as well as the innocence of a suspect is irrelevant.

The dissent of Seventh Circuit Chief Judge Diane Wood minces no words, when she opens (at p. 40 of the slip opinion) by stating —

Psychological coercion, questions to which the police furnished the answers, and ghoulish games of ”20 Questions,” in which Brendan Dassey guessed over and over again before he landed on the “correct” story (i.e., the one the police wanted), led to the “confession” that furnished the only serious evidence supporting his murder conviction in the Wisconsin courts. Turning a blind eye to these glaring faults, the en banc majority has decided to deny Dassey’s petition for a writ of habeas corpus. They justify this travesty of justice as something compelled by the Antiterrorism and Effective Death Penalty Act (AEDPA).

Judge Wood’s dissenting opinion also sets out a detailed chart of errors and inconsistencies at pp 49-54. Judge Rovner’s companion dissent points out that it is time for appellate courts to address psychological police coercion, which in light of the updated knowledge from DNA exonerations and recent social science studies, show that innocent people can and sometimes do falsely confess when placed under considerable psychological pressure. This is especially so if they are underage or have mental disabilities, like Mr. Dassey.

The U.S. Supreme Court is the next stop for Mr. Dassey, and if four of the nine justices agree to hear his petition for certiorari review, which will be filed in 2018, the whole Court will have an opportunity to consider the case, and the en banc Seventh Circuit decision that unduly restrictively applies the AEDPA.

For a fuller discussion of the AEDPA, see the insightful article in The New Yorker magazine. The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) is surely one of the worst statutes ever passed by Congress and signed into law by a President. The heart of the law is a provision saying that, even when a state court misapplies the Constitution, a defendant cannot necessarily have his day in federal court. Instead, he must prove that the state court’s decision was “contrary to” what the Supreme Court has determined is “clearly established federal law,” or that the decision was “an unreasonable application of” it. This law gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.

Proposals to further limit habeas review have since been put forth by Congress, and are expected to be renewed by the Trump Administration.

If someone you know has been wrongfully convicted of a crime or given an excessive sentence, postconviction, appellate and habeas corpus relief might be available. Contact the experienced and knowledgeable Wisconsin criminal defense and appeal attorneys at Gimbel, Reilly, Guerin & Brown, LLP.

Sources:

http://wislawjournal.com/2011/04/19/proposal-to-limit-federal-habeas-corpus-review-of-criminal-convictions-is-wrong-headed-and-dangerous/

http://lrbdigital.legis.wisconsin.gov/digital/collection/p16831coll2/id/1361