September 26, 2017
from the United States District Court for the Eastern
District of Wisconsin. No. 14-cv-1310 - William E. Duff in,
Wood, Chief Judge, and Easterbrook, Kanne, Rovner, Williams,
Sykes, and Hamilton, Circuit Judges.[*]
HAMILTON, CIRCUIT JUDGE.
Brendan Dassey confessed on videotape to participating in the
2005 rape and murder of Teresa Halbach and the mutilation of
her corpse. The Wisconsin state courts upheld Dassey's
convictions for these crimes, finding that his confession was
voluntary and could be used against him. The principal issue
in this habeas corpus appeal is whether that finding was
based on an unreasonable application of Supreme Court
precedent or an unreasonable view of the facts. See 28 U.S.C.
Dassey's confession was voluntary or not is measured
against a general standard that takes into account the
totality of the circumstances. See Withrow v.
Williams, 507 U.S. 680, 693-94 (1993); Gallegos v.
Colorado, 370 U.S. 49, 55 (1962); see also Fare v.
Michael C, 442 U.S. 707, 727 (1979) (ad-missibility of
juvenile confession). Some factors would tend to support a
finding that Dassey's confession was not voluntary: his
youth, his limited intellectual ability, some suggestions by
the interrogators, their broad assurances to a vulnerable
suspect that honesty would produce leniency, and
inconsistencies in Dassey's confession. Many other
factors, however, point toward a finding that it was
voluntary. Dassey spoke with the interrogators freely, after
receiving and understanding Miranda warnings, and
with his mother's consent. The interrogation took place
in a comfortable setting, without any physical coercion or
intimidation, without even raised voices, and over a
relatively brief time. Dassey provided many of the most
damning details himself in response to open-ended questions.
On a number of occasions he resisted the interrogators'
strong suggestions on particular details. Also, the
investigators made no specific promises of leniency.
the state courts found the confession voluntary, a federal
district court and a divided panel of this court found that
the state courts' decision was unreasonable and that
Dassey was entitled to a writ of habeas corpus. We granted
en banc review to consider the application of the
deferential standards of 28 U.S.C. § 2254(d) and the
implications of the panel decision for interrogations of
juvenile suspects. The state courts' finding that
Dassey's confession was voluntary was not beyond fair
debate, but we conclude it was reasonable. We reverse the
grant of Dassey's petition for a writ of habeas corpus.
provides an overview of the applicable law. Part II sets
forth the relevant facts about Teresa Halbach's murder,
Dassey's confession, and the court proceedings. Part III
applies the law to the relevant facts, keeping in mind the
deference we must give under § 2254(d) to state court
decisions as to which reasonable judges might differ.
The Applicable Law
first discuss our standard of review under the Antiter-rorism
and Effective Death Penalty Act of 1996 (AEDPA) and then
describe the Supreme Court's clearly established law for
when a confession, particularly a confession by a
sixteen-year-old like Dassey is deemed voluntary and
Deference Under AEDPA
considering habeas corpus petitions challenging state court
convictions, "our review is governed (and greatly
limited) by" AEDPA. Hicks v. Hepp, 871 F.3d
513, 524 (7th Cir. 2017) (citation omitted). The standards in
28 U.S.C. § 2254(d) were designed to "prevent
federal habeas 'retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law." Id., quoting Bell v.
Cone, 535 U.S. 685, 693 (2002). Section 2254(d) provides
that a state court conviction cannot be overturned unless the
state courts' adjudication of a federal claim on the
(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;
(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.
decision federal courts look to is the "last reasoned
state-court decision" to decide the merits of the case,
even if the state's supreme court then denied
discretionary review. Johnson v. Williams, 133 S.Ct.
1088, 1094 n.l (2013). In this case, we look to the Wisconsin
Court of Appeals decision that Dassey's confession was
standard for legal errors under § 2254(d)(1) was meant
to be difficult to satisfy. Harrington v. Richter,
562 U.S. 86, 102 (2011). The issue is not whether federal
judges agree with the state court decision or even whether
the state court decision was correct. The issue is whether
the decision was unreasonably wrong under an objective
standard. Williams v. Taylor, 529 U.S. 362, 410-11
(2000) (majority opinion of O'Con- nor, J.). Put another
way, we ask whether the state court decision "was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement."
Richter, 562 U.S. at 103. The existing law that
applies is limited to that of the Supreme Court of the United
States, which has instructed the lower federal courts to
uphold a state court conviction unless the record
"cannot, under any reasonable interpretation of the
[Court's] controlling legal standard, support a certain
ruling." Panetti v. Quarterman, 551 U.S. 930,
953 (2007). Even if we were to consider the approach in past
Supreme Court decisions outmoded, as the dissents suggest, a
state court's decision consistent with the Supreme
Court's approach could not be unreasonable under AEDPA.
result, federal habeas relief from state convictions is rare.
It is reserved for those relatively uncommon cases in which
state courts veer well outside the channels of reasonable
decision-making about federal constitutional claims. AEDPA
deference is not conclusive, however. Where the record shows
that state courts have strayed from clearly established
federal law, we can and do grant relief. E.g., Richardson
v. Griffin, 866 F.3d 836 (7th Cir. 2017); Jones v.
Calloway, 842 F.3d 454 (7th Cir. 2016); McManus v.
Neal, 779 F.3d 634 (7th Cir. 2015); Shaw v.
Wilson, 721 F.3d 908 (7th Cir. 2013); Harris v.
Thompson, 698 F.3d 609 (7th Cir. 2012); Jones v.
Basinger, 635 F.3d 1030 (7th Cir. 2011).
of state court factual findings under AEDPA is similarly
deferential. Under § 2254(d)(2), federal courts cannot
declare "state-court factual determinations ...
unreasonable merely because [we] would have reached a
different conclusion in the first instance."
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015)
(internal quotation marks and citation omitted). AEDPA does
not permit federal courts to "supersede the trial
court's ... determination" if a review of the record
shows only that "[r]easonable minds ... might disagree
about the finding in question." Id. (internal
quotations and citations omitted). But again, "deference
does not imply abandonment or abdication of judicial review,
and does not by definition preclude relief."
Id. (internal quotations and citations omitted).
The Law of Confessions
Process Clause of the Fourteenth Amendment forbids the
admission of an involuntary confession in evidence in a
criminal prosecution. Miller v. Fenton, 474 U.S.
104, 109 (1985). In deciding whether a confession was
voluntary courts assess "the totality of all the
surrounding circumstances-both the characteristics of the
accused and the details of the interrogation."
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);
see also Withrow v. Williams, 507 U.S. 680, 693-94
(1993) (collecting relevant factors). The purpose of this
test is to determine whether "the defendant's will
was in fact overborne." Miller, 474 U.S. at
Supreme Court's many cases applying the voluntari-ness
test have not distilled the doctrine into a comprehensive set
of hard rules, though prohibitions on physical coercion are
absolute. See Mincey v. Arizona, 437 U.S. 385, 401
(1978) (statements resulted from "virtually continuous
questioning of a seriously and painfully wounded man on the
edge of consciousness"); Brown v. Mississippi,
297 U.S. 278, 279 (1936) (confessions extracted by
"brutality and violence"). AEDPA does not
"require state and federal courts to wait for some
nearly identical factual pattern before a legal rule must be
applied" because "even a general standard may be
applied in an unreasonable manner." Panetti,
551 U.S. at 953, quoting Carey v. Musladin, 549 U.S.
70, 81 (2006) (Kennedy, }., concurring in the
judgment); accord, Yarborough v. Alvarado, 541 U.S.
652, 663-64 (2004).
applying a general standard like voluntari-ness "can
demand a substantial element of judgment, " and
determining whether that judgment is reasonable
"requires considering the rule's specificity."
Alvarado, 541 U.S. at 664. "The more general
the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations." Id. (upholding
state court Miranda conclusion where factors pointed
in opposite directions). The state courts had such leeway
here, and in the end, that leeway is decisive as we apply the
test of § 2254(d)(1).
general standard has some specific requirements to guide
courts. First, a person arguing his confession was
involuntary must show that the police engaged in coercive
practices. See Colorado v. Connelly, 479 U.S. 157,
164-65 (1986). Physically abusive interrogation tactics would
constitute coercion per se. Stein v. New York, 346
U.S. 156, 182 (1953) (physical violence is per se
coercion), overruled on other grounds by Jackson v.
Denno, 378 U.S. 368, 381 (1964); Brown, 297
U.S. at 286-87 (coercion and brutality); United States v.
Jenkins, 938 F.2d 934, 938 (9th Cir. 1991) (physical
abuse is coercion per se); Miller v. Fenton, 796
F.2d 598, 604 (3d Cir. 1986) (same).
tactics short of physical force can amount to coercion. The
Court has condemned tactics designed to exhaust suspects
physically and mentally. Such tactics include long
interrogation sessions or prolonged detention paired with
repeated but relatively short questioning. Davis v. North
Carolina, 384 U.S. 737, 752 (1966) (finding coercive the
practice of repeated interrogations over sixteen days while
the suspect was being held incommunicado).
Supreme Court has not found that police tactics not involving
physical or mental exhaustion taken alone were sufficient to
show involuntariness. In several cases, the Court has held
that officers may deceive suspects through appeals to a
suspect's conscience, by posing as a false friend, and by
other means of trickery and bluff. See, e.g., Procunier
v. Atchley, 400 U.S. 446, 453-54 (1971) (suspect was
deceived into confessing to false friend to obtain insurance
payout to children and stepchildren); Frazier v.
Cupp, 394 U.S. 731, 739 (1969) (deceiving suspect about
another suspect's confession). False promises to a
suspect have similarly not been seen as per se
coercion, at least if they are not quite specific. See
Arizona v. Fulminante, 499 U.S. 279, 285 (1991)
(rejecting language in Bram v. United States, 168
U.S. 532 (1897), stating that a confession could not be
obtained by "any direct or implied promises, "
id. at 542-43, but finding promise to protect
suspect from threatened violence by others rendered
confession involuntary); Welsh S. White, Confessions
Induced by Broken Government Promises, 43 Duke L.J. 947,
promises may be evidence of involuntariness, at least when
paired with more coercive practices or especially vulnerable
defendants as part of the totality of the circumstances.
E.g., Lynumn v. Illinois, 372 U.S. 528, 534 (1963)
(pre-Miranda confession found involuntary based on
false promise of leniency to indigent mother with young
children, combined with threats to remove her children and to
terminate welfare benefits, along with other factors). But
the Supreme Court allows police interrogators to tell a
suspect that "a cooperative attitude" would be to
his benefit. Fare v. Michael C, 442 U.S. 707, 727
(1979) (reversing finding that confession was involuntary).
Supreme Court precedents do not draw bright lines on this
assessing voluntariness, courts must weigh the tactics and
setting of the interrogation alongside any particular
vulnerabilities of the suspect. Bustamonte, 412 U.S.
at 226. Relevant factors include the suspect's age,
intelligence, and education, as well as his familiarity with
the criminal justice system. Withrow, 507 U.S. at
693-94 (collecting factors); Michael C, 442 U.S. at
725-26 (significant criminal justice experience); Clewis
v. Texas, 386 U.S. 707, 712 (1967) (limited educational
attainment); Culombe v. Connecticut, 367 U.S. 568,
620 (1961) (intellectual disability); Gallegos v.
Colorado, 370 U.S. 49, 53 (1962) (age).
interaction between the suspect's vulnerabilities and the
police tactics may signal coercion even in the absence of
physical coercion or threats. The Supreme Court has made it
clear that juvenile confessions call for "special
care" in evaluating voluntariness. E.g., Haley v.
Ohio, 332 U.S. 596, 599 (1948); see also J.D.B. v.
North Carolina, 564 U.S. 261, 277 (2011); In re
Gault, 387 U.S. 1, 45 (1967); Gallegos, 370
U.S. at 54. In juvenile cases, the law is particularly
concerned with whether a friendly adult is present for or
consents to the interrogation. In re Gault, 387 U.S.
at 55-56; Gallegos, 370 U.S. at 53-54;
Haley, 332 U.S. at 600. Concerns about physical
exhaustion, naivete about friendly police in the context of
an adversarial police interview, and intellectual disability
also take on heightened importance for assessing whether a
juvenile's will was overborne. 
detail below, Dassey's case presents different factors
pointing in opposite directions. Those most important to our
analysis include: his age and intellectual ability; the
physical circumstances of the interrogation; the manner and
actions of the police in questioning Dassey including
bluffing about what they knew and assuring him of the value
of honesty; Dassey's resistance or receptiveness to
suggestions by interrogators; and the extent to which he
provided the most incriminating information in response to
open-ended, non-leading questions.
The Murder, the Interrogation, and the Convictions
The Murder of Teresa Halbach
the applicable law in mind, we turn to the horrifying murder
of Teresa Halbach and then the circumstances of Das-sey's
confession. More detailed accounts are available in the
panel, district court, and state court opinions. See
Dassey v. Dittmann, 860 F.3d 933 (7th Cir. 2017);
Dassey v. Dittmann, 201 F.Supp.3d 963 (E.D. Wis.
2016); State v. Dassey, 346 Wis.2d 278, 2013 WL
335923 (Wis. App. 2013) (per curiam) (unpublished
disposition); see also State v. Avery, 804 N.W.2d
216 (Wis. App. 2011) (affirming convictions of Dassey's
2005, Teresa Halbach was a young photographer with her own
business based in Calumet County, Wisconsin. On October 31,
her last appointment of the day was at Avery's Auto
Salvage to photograph a van for an advertisement. Halbach
never returned from that appointment. A few days later during
a missing-person search, her car was found at the salvage
yard. Her blood stained the car's interior. A further
search turned up Halbach's charred remains in a burn pit
on the property, along with shell casings on the floor of
Steven Avery's garage.
Dassey's Early Police Interviews
investigators spoke with a number of Avery's relatives in
early November, including an hour-long interview of his
sixteen-year-old nephew Brendan Dassey, who lived close by.
Dassey said he had seen Halbach taking pictures at the
salvage yard on the afternoon of October 31, but he resisted
the suggestion that she had entered Avery's home. At that
time, he provided no other useful information.
months later, though, investigators received word that Dassey
had been crying uncontrollably and had lost about forty
pounds of weight. They proceeded to interview him a total of
three times on February 27, 2006. In these voluntary witness
interviews, it became clear that Dassey knew much more about
Teresa's murder. (Dassey was not in custody on February
27th. He signed and initialed a Miranda waiver, and
his mother consented, though she did not sit in.) In those
interviews, Dassey admitted that on October 31st, he had gone
over to Avery's trailer around 9:00 p.m. to help with a
bonfire. He told the police that he had seen parts of a human
body in the fire. He also said that Avery had threatened to
hurt him if he spoke to the police. When the police asked
about a pair of bleach-stained jeans they had learned about
from another family member, Dassey admitted that he had
helped Avery clean up a spill on the garage floor late that
night. But Dassey claimed to have had nothing to do with
The March 1st Interview and Confession
The Circumstances of the Interview
those interviews, investigators thought Dassey had been a
witness to at least the aftermath of a terrible crime and was
struggling with the horror of what he had seen. On March 1st,
the investigators (Mark Wiegert and Tom Fassbender) obtained
his mother's permission for another interview. They took
Dassey from his high school to a local sheriff's
department, where he was questioned without the presence of a
friendly adult. In the car the investigators gave Dassey
standard Miranda warnings about his right to remain
silent, his right to an attorney, and the possibility that
statements he gave could be used against him. Dassey orally
acknowledged the warnings, and he initialed and signed a
written Miranda waiver form. He and the officers
chatted during the ride. The three took a short detour to
Dassey's home to retrieve his pair of bleach-stained
jeans, which were kept as evidence. When they arrived at the
sheriff's department, Dassey confirmed that he understood
his rights and still wanted to talk to them.
interview took place in a so-called "soft"
interview room equipped for videotaping. Dassey sat on a
couch facing two officers and a camera. Over the next three
hours, Dassey was repeatedly offered food, drinks, restroom
breaks, and opportunities to rest. At no point in the
interview did the investigators threaten Dassey or his
family. Nor did they attempt to intimidate him physically.
They did not even raise their voices. Neither investigator
tried to prevent Dassey from leaving the room, nor did they
use any sort of force to compel him to answer questions.
Dassey never refused to answer questions, never asked to have
counsel or his mother present, and never tried to stop the
The First Hour of Questioning
officer began by telling Dassey how he could help the
investigation, since "this information and that
information" from previous accounts needed "just a
little tightening up." Sensing that Dassey "may
have held back for whatever reasons, " the officer
assured Dassey "that Mark and I both are in your corner,
we're on your side." Acknowledging Dassey's
potential concern that talking to the police meant he
"might get arrested and stuff like that, " the
investigator urged Dassey to "tell the whole truth,
don't leave anything out." Talking could be in
Dassey's best interest even though it "might make
you look a little bad or make you look like you were more
involved than you wanna be, " because admitting to
unfortunate facts would leave "no doubt you're
telling the truth." The first investigator closed by
saying that "from what I'm seeing, even if I
filled" in some holes in Dassey's story,
"I'm thinkin' you're all right. OK, you
don't have to worry about things ... [W]e know what
Steven [Avery] did ... we just need to hear the whole story
from you." The other investigator went next:
Honesty here Brendan is the thing that's gonna help you.
OK, no matter what you did, we can work through that. OK. We
can't make any promises but we'll stand behind you no
matter what you did. OK. Because you're being the good
guy here .... And by you talking with us, it's, it's
helping you. OK? Because the honest person is the one
who's gonna get a better deal out of everything.
App. 30. After Dassey nodded in agreement, the investigator
You know. Honesty is the only thing that will set you free.
Right? And we know, like Tom said we know, we reviewed those
tapes .... We pretty much know everything that's why
we're .... talking to you again today. We really need you
to be honest this time with everything, OK.... [A]s long as
you be honest with us, it's OK. If you lie about it
that's gonna be problems. OK. Does that sound fair?
Id. Dassey again nodded and the questioning turned
to the events of October 31st.
the course of the next three hours, with several breaks as
the investigators conferred outside the room, Dassey told an
even more disturbing and incriminating story about October
31st. In the first hour, Dassey admitted that he received a
telephone call from Avery went over to Avery's garage in
the six o'clock hour, and found Teresa already dead in
her car. Dassey then said he helped Avery lower Teresa's
bound body onto a "creeper" (used to work
underneath an automobile), which he and Avery used to take
her body outside and throw her onto the already-burning
point, less than an hour into the interview, Dassey's
story pivoted dramatically. Dassey revised his story to say
that he first noticed something amiss in the four o'clock
hour. Dassey volunteered that when he was out getting the
mail, he heard a woman screaming inside Avery's trailer.
Supp. App. 50. Dassey knocked on Avery's door, ostensibly
to deliver a piece of mail, and a sweaty Avery answered the
said he then saw Teresa alive, naked, and handcuffed to
Avery's bed. Dassey said he went inside at Avery's
invitation and had a soda while Avery told him that he had
raped Teresa. Dassey said that, at Avery's urging, he
then raped Teresa, having intercourse against her will as she
was bound to the bed, and as she protested and begged him to
stop. After the rape, Dassey reported, he then watched
television with Avery for a while. Supp. App. 55-65.
Dassey's telling, he next helped Avery subdue and kill
Teresa and move her to the garage. Id. at 66-76. In
response to questioning and prodding, Dassey told a confusing
story about these critical events. Dassey said that Avery
stabbed Teresa with a large knife, that her handcuffs were
removed, and that she was tied up with rope. He also said
that Avery cut off some of her hair with that large knife,
that he (Dassey) cut her throat with the same knife, and that
at some point Avery choked or punched her. All these events
reportedly happened by 6:00 or 6:30 p.m. 
details and sequence of these events changed repeatedly,
however, as investigators pressed Dassey for more details.
This portion of the interrogation provides the most support
for Dassey's claim that his confession was both
involuntary and unreliable. For example, because the recovered
remnants of Teresa's skull contained trace amounts of
lead, the investigators believed that Teresa had been shot in
the head. They were eager for Dassey to describe what
"else was done to her head" besides cutting and
punching. In this exchange, Dassey did not provide the answer
they were looking for. He offered what seemed like guesses.
The investigators abandoned their vague admonitions to tell
the truth. They lost patience and blurted out:
Wiegert: All right, I'm just gonna come out and ask you.
Who shot her in the head?
Brendan: He did.
Fassbender: Then why didn't you tell us that?
Brendan: Cuz I couldn't think of it.
Fassbender: Now you remember it? (Brendan nods
"yes") Tell us about that then.
Supp. App. 76. Dassey continued to do so over the whole
course of the March 1st interview, revising upwards the
number of times Teresa was shot from twice to three times,
and then up to ten times. Dassey also revised the location of the
shooting, first outside the garage, then inside Teresa's
car, then on the floor of the garage. After this shifting
exchange about the shooting, the first hour of the March 1st
interview concluded with Dassey explaining how he and Avery
put Teresa's body on the fire, how they moved her car,
and finally how they cleaned up the stain in Avery's
garage before Dassey went home.
The Second Hour of Questioning
investigators then took a break to confer. During the break,
Dassey had the opportunity to rest and to use the rest-room.
Before starting up again, Dassey and Wiegert had this
exchange, indicating that Dassey did not understand the
gravity of what he had told the investigators:
Brendan: How long is this gonna take?
Wiegert: It shouldn't take a whole lot longer.
Brendan: Do you think I can get [back to school] before one
Wiegert: Urn, probably not.
Wiegert: What's at one twenty-nine?
Brendan: Well, I have a project due in sixth hour.
Supp. App. 102.
second hour of questioning, the investigators sought to
confirm details from the first. They had only limited
success. Dassey provided more confusing details about how
Teresa was killed and the status of the bonfire. But in the
main, Dassey largely confirmed his account from the first
hour, especially about the details of his sexual assault of
Teresa. His story regarding what he saw of Teresa in the
fire-hands, feet, forehead, and part of a torso-also remained
that the investigators did not overwhelm his will, Dassey
resisted repeated suggestions by both investigators that he
and Avery used the wires and cables hanging in the garage to
torture Teresa. The investigators also tested Dassey's
suggestibility. They told him falsely that ...