Judges speak to both sides of Dassey confession
CHICAGO - In a hearing that could determine whether Brendan Dassey, one of the two men convicted in the case depicted in the “Making a Murderer” documentary, goes free, the chief judge of the U.S. Seventh Circuit Court of Appeals and one her colleagues repeatedly made statements indicating that they question whether Dassey’s confession was voluntary.
At the same time, two other judges, including former Wisconsin Supreme Court Justice Diane Sykes, made remarks that were more favorable to the State of Wisconsin, which is aiming to reinstate Dassey’s conviction.
Ultimately, how the seven judges who participated in Tuesday’s session will rule won’t be known until they issue a written decision. There is no timetable for that.
Dassey, who has a borderline low IQ, was 16 when 25-year-old photographer Teresa Halbach was murdered in 2005. Her charred remains were found outside the Manitowoc County home of Dassey’s uncle, Steven Avery. In 2007, juries in separate trials found both men guilty. DNA evidence was pivotal in Avery’s trial, but Dassey was convicted primarily based on his confession.
In June, a three-member panel of the federal appeals court ruled that Dassey’s confession was involuntary, upholding the decision of a federal magistrate in Milwaukee that Dassey’s constitutional rights were violated based on the way he had been interrogated. The magistrate’s
“There was no promise of leniency. There was a vague suggestion, at best.” DIANE SYKES WISCONSIN SUPREME COURT JUSTICE
decision overturned Dassey’s conviction, though Dassey has remained in prison during the appeals process.
The full appeals court held Tuesday’s hearing to review the three-judge panel’s decision.
Dassey, now 27, was not in court.
The chief appeals judge, Diane Wood, repeated a number of troubling things about Dassey’s confession, including being told by an investigator that telling the truth would set him free. Judge Ann Williams recalled that an investigator at one point told Dassey he was speaking to him as a father. The two investigators ‘made my skin crawl,’ “Wood said.
In contrast, Sykes bluntly told Dassey lawyer Laura Nirider: “There was no promise of leniency. There was a vague suggestion, at best.”
Sykes also chastised Nirider at one point that her arguments amounted to “creating law,” something an appellate court cannot do.
Nirider called Dassey’s interrogations “a case of psychological coercion.” But Luke Berg, the deputy solicitor general for Wisconsin, insisted that even if the investigators told Dassey certain facts about the crimes, Dassey volunteered other facts that weren’t publicly known and that he confessed because he wanted to get it all off his chest.
Berg’s boss, Wisconsin Attorney General Brad Schimel, observed the proceedings but did not participate.
Either side can appeal the appeals court decision, once it is handed down, to the U.S. Supreme Court. But legal observers have said it would be highly unlikely that the high court would take the case.
If the appeals court upholds the decision overturning Dassey’s conviction, Schimel would have to decide whether to put Dassey on trial again or allow him to be freed.
The case was the subject of “Making a Murderer,” a 10-hour Netflix series that became an unexpected hit after it was released in December 2015.
In August 2016, William Duffin, the federal magistrate judge in Milwaukee, concluded that investigators for the prosecution made “repeated false promises” that, “when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits and the absence of a supportive adult, rendered Dassey’s confession involuntary.”
The questioning was marked by the two investigators alternately telling Dassey they were on his side, and pressing him to provide more details of the crime that they insisted they already knew.