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Dassey v. Dittmann

United States Court of Appeals, Seventh Circuit

December 8, 2017

Brendan Dassey, Petitioner-Appellee,
Michael A. Dittmann, Respondent-Appellant.

          Argued September 26, 2017

         Appeal from the United States District Court for the Eastern District of Wisconsin. No. 14-cv-1310 - William E. Duff in, Magistrate Judge.

          Before Wood, Chief Judge, and Easterbrook, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.[*]


         Petitioner 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. § 2254(d).

         Whether 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.

         After 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.

         Part I 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.

         I. The Applicable Law

         We 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 admissible.

         A. Deference Under AEDPA

         In 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 merits:

(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.

         The 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 voluntary.[1]

         The 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.

         As a 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).

         Review 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).

         B. The Law of Confessions

         The Due 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 116.

         The 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).

         Nevertheless, 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).

         This 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).

         Interrogation 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).

         The 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, 953 (1994).

         False 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 subject.

         In 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).

         The 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. [2]

         As we 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.

         II. The Murder, the Interrogation, and the Convictions

         A. The Murder of Teresa Halbach

         With 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 uncle).

         In 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.

         B. Dassey's Early Police Interviews

         Police 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.

         Several 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 Teresa's death.

         C. The March 1st Interview and Confession

         1. The Circumstances of the Interview

         After 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.

         The 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 interview.

         2. The First Hour of Questioning

         One 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.

         Supp. App. 30. After Dassey nodded in agreement, the investigator continued:

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.

         Over 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 bonfire.

         At that 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 door.

         Dassey 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.

         In 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. [3]

         The 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.[4] 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.[5] 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.

         3. The Second Hour of Questioning

         The 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 twenty-nine?
Wiegert: Urn, probably not.
Brendan: Oh.
Wiegert: What's at one twenty-nine?
Brendan: Well, I have a project due in sixth hour.

Supp. App. 102.

         In the 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 mostly consistent.

         Signaling 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 ...

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