Brendan Dassey v. Michael Dittmann
Filing
Filed opinion of the court by Judge Rovner. The decision of the district court is AFFIRMED in all respects. The writ of habeas corpus is GRANTED unless the State of Wisconsin elects to retry Dassey within 90 days of issuance of this court s final mandate, or of the Supreme Court s final mandate. Ilana Diamond Rovner, Circuit Judge; Ann Claire Williams, Circuit Judge and David F. Hamilton, Circuit Judge, dissenting. [6849593-1] [6849593] [16-3397]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3397
BRENDAN DASSEY,
Petitioner‐Appellee,
v.
MICHAEL A. DITTMANN,
Respondent‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:14‐cv‐01310 — William E. Duffin, Magistrate Judge.
____________________
ARGUED FEBRUARY 14, 2017 — DECIDED JUNE 22, 2017
____________________
Before ROVNER, WILLIAMS, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Teresa Halbach disappeared on
Halloween Day, 2005. Her concerned family and friends con‐
tacted law enforcement after she did not show up at the pho‐
tography studio where she worked and her voice mailbox
was full. Law enforcement officers quickly zeroed in on the
Avery Auto Salvage yard in Two Rivers, Wisconsin, as the
last place she was known to have gone, and, in particular, on
Steven Avery, the son of the salvage yard owner who lived
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in a trailer on the property. Earlier in the day, Avery called
Auto Trader magazine, for whom Halbach sometimes took
photographs, to request that she take photographs of a
minivan that he wished to sell in its magazine. Eventually
the police began to suspect that Avery’s 16‐year‐old nephew,
Brendan Dassey, who also lived on the property, might have
been a witness or had information about Halbach’s murder.
After a few preliminary conversations, the investigators
were concerned enough to call Dassey into the police station
for a full interrogation. After many hours of questioning and
interrogation spread over several days, Dassey confessed
that he, along with Avery, had raped and brutally murdered
Halbach and then burned her body in an on‐site fire pit. By
the time of the trial, Dassey had recanted his confession, and
the State had failed to find any physical evidence linking
him to the crime, but he was convicted and sentenced to life
in prison nonetheless. After appeals and post‐conviction
proceedings in the state court failed to bring him relief. The
state court on post‐conviction review stated the generalized
standard for evaluating the voluntariness of a confession–
totality of the circumstances–but failed to note how that ju‐
venile confession requires more care and failed to apply the
standard at all. Dassey filed a petition for a writ of habeas
corpus in the district court, claiming that he did not receive
effective assistance of counsel and that his confession was
not voluntarily given. The district court, concluding as we
do that the state court did not apply the proper standard,
granted the writ. Despite the limited role of a federal court
on habeas review we must affirm. If a state court can evade
all federal review by merely parroting the correct Supreme
Court law, then the writ of habeas corpus is meaningless.
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I.
The facts related to this case are expansive and convolut‐
ed, and those facts have been reported in various iterations
throughout the decisions of the state courts of Wisconsin
and in the district court. We borrow heavily from the district
court and report just those facts needed for purposes of this
appeal and refer the reader to the full district court opinion,
Dassey v. Dittmann, 201 F. Supp. 3d 963 (E.D. Wisc. 2016) for
further details.
Teresa Halbach was a 25‐year‐old summa cum laude
graduate of the University of Wisconsin‐Green Bay who was
running her own photography business. She was the second
oldest of five children in a tight‐knit family, and lived in a
farmhouse a quarter mile from her parents. On October 31,
2005, she photographed three vehicles for Auto Trader Mag‐
azine. She took the third and final series of photographs at
the Avery salvage yard. She never returned home. Her life
and career were cut short by a heinous and senseless crime.
Her brutally burned body provided few clues about her
death, but other investigative methods provided the state
court with the following facts. Halbach had taken photo‐
graphs at the Avery property on five prior occasions, and
Avery called Auto Trader the morning of October 31 and re‐
quested that “the same girl who had been out here before”
come and take pictures of a vehicle that was for sale. Just be‐
fore 2:30 p.m., Halbach contacted Auto Trader Magazine and
said that she was on her way to the Avery property. Some‐
time around 2:30 or 2:45 p.m., a neighbor of Avery’s saw
Halbach photographing a minivan and then proceed toward
Avery’s residence. The neighbor left home at about 3:00 p.m.
and observed Halbach’s 1999 Toyota RAV4 still outside
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Avery’s residence but did not see Halbach. When he re‐
turned home at approximately 5:00 p.m., Halbach’s RAV4
was gone. Halbach was not seen or heard from after that
time.
On November 5, 2005, volunteer searchers scoured the
forty acre, 4,000+ vehicle salvage yard and found Halbach’s
RAV4 partially covered by tree branches, fence posts, boxes,
plywood, and auto parts. The license plates had been re‐
moved and the battery cables disconnected.
Based on that discovery, investigators obtained a search
warrant for the entire salvage yard and, after a week‐long
search, found evidence that Halbach was the victim of a hor‐
rendous crime. Some of that evidence came from a burn bar‐
rel and a four‐foot by six‐foot burn pit near Avery’s trailer.
In those burn areas, investigators found Halbach’s charred
bone and dental remains, burned remnants of a cell phone
and camera of the same make and model that Halbach used,
and a zipper and rivets from a brand of women’s jeans that
Halbach was known to wear. State crime lab experts later
determined, based on the skull fragments, that Halbach had
been shot twice in the head. Multiple witnesses reported see‐
ing a large bonfire in the burn pit outside of Avery’s resi‐
dence on October 31. The police arrested Avery after the dis‐
covery of this evidence.
Forensic investigators found a roughly six‐inch blood
stain in the rear cargo area of Halbach’s RAV4, and other
smaller stains in and around the cargo area that matched
Halbach’s DNA. Also in the RAV4, forensic examiners found
very small blood stains that matched Avery’s DNA profile
on the following locations: a panel just to the right of the ig‐
nition, a CD case, a metal panel between the rear seats and
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the vehicle cargo area, the driver’s seat, the front passenger’s
seat, and the floor next to the center console. Avery’s DNA
was also detected on the hood latch.
The investigation of Avery continued as he awaited trial.
Investigators began interviewing family members, including
Dassey and Avery’s niece, Kayla Avery. Kayla stated that
her cousin Brendan Dassey had been “acting up lately,” that
he was staring into space and crying uncontrollably, and
that he had lost roughly forty pounds. Dassey later ex‐
plained that the weight loss had been part of an effort to find
a girlfriend and that the tears had been over a break up. But
based on Kayla’s interview, and the fact that another witness
reported seeing Dassey at the bonfire with Avery around
7:30 or 7:45 p.m. on October 31, investigators decided that it
was necessary to re‐interview Dassey.
Calumet County Sheriff’s investigator, Mark Wiegert,
and Wisconsin Department of Justice Special Agent, Tom
Fassbender, travelled to Dassey’s high school on February
27, 2006, and, without his parents’ knowledge, met with him
in a conference room for about an hour. Dassey was a soph‐
omore who received special education services, and whose
IQ had been measured at various times between 74 and 81,
falling fairly far below an average range of intelligence. On
the Wechsler scale of intelligence, Dassey’s score meant that
90% of adolescents his age would have performed intellec‐
tually better than he did, and on the Kaufman scale, 87% of
adolescents his age would have performed better. R. 19‐22 at
48–49. A psychological expert at trial described Dassey as
highly suggestible, docile, withdrawn, with extreme social
anxiety and social avoidant characteristics, and more sug‐
gestible than 95% of the population.
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At that first interview with the officers, Dassey said that
Avery had asked him to help load tires and an old van seat
onto a bonfire near Avery’s trailer on the evening of October
31, but that he saw nothing unusual before going home. Be‐
cause of the poor quality of the cassette tape recording of
that interview, the prosecuting attorney requested that the
investigators re‐interview Dassey to create a better record.
Wiegert and Fassbender made arrangements to interview
Dassey again later that same day at the local police station.
Wiegert and Fassbender contacted Dassey’s mother, Bar‐
bara Janda, who met them at the school. The investigators
drove Dassey and Janda to the police station. According to
Wiegert and Fassbender, Janda declined their offer to be pre‐
sent for the interview and instead remained in a waiting area
of the police station. R. 19‐19 at 71. According to Janda, the
investigators discouraged her from attending the interview.
R. 19‐30 at 155. This second February 27 interview, which
lasted less than an hour, began with a long monologue by
Fassbender, who sat down with Dassey and said, “some
people back there say no, we’ll just charge him. We said no,
let us talk to him, give him the opportunity to come forward
with the information that he has, and get it off his chest.”
R. 19‐24 at 5. Then, Fassbender set forth his role in the inves‐
tigation and made what Dassey characterizes as the first of
many assurances and promises:
Mark and I, yeah, we’re cops, we’re investiga‐
tors and stuff like that, but I’m not right now.
I’m a father that has a kid your age too. There’s
1 All record cites are to the record in the United States District Court for
the Eastern District of Wisconsin, Case No. 14‐CV‐1310.
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nothing I’d like more than to come over and
give you a hug cuz I know you’re hurtin.’ Talk
about it … I promise I will not leave you high
and dry.
R. 19‐24 at 5. After this assurance, Dassey began what would
become a series of alterations in his story over time, increas‐
ing his culpability in response to suggestions by the investi‐
gators. The first such suggestion came after Dassey initially
denied having seen anything but garbage and other detritus
in the October 31 fire. The investigators insisted that Dassey
must have seen something suspicious in the fire. Fassbender
set forth his suspicions as follows:
I’m more interested in what you probably saw
in that fire or something. We know she was put
in that fire, there’s no doubt about it. The evi‐
dence speaks for itself. And you were out there
with him. And unfortunately, I’m afraid you
saw something that you wished you never
would have seen. You know, I mean that’s
what we need to know. … Did you see a hand,
a foot, something in that fire? Her bones? Did
you smell something that was not too right?
Id. at 5–6. Then, after Fassbender insisted several times that
Dassey must have seen something in the fire, and suggesting
the body parts that he had seen, Dassey admitted that he
had seen those same body parts—fingers and toes, plus a
forehead, and a belly in the fire. By the end of this interview,
Dassey reported that he saw Halbach’s body parts in a fire,
that he saw Avery burn clothing in a fire, and that Avery
had confessed that he had stabbed Halbach, put her in the
fire and hid her car in the yard.
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Fassbender met with Dassey again that evening in a hotel
room where Dassey told Fassbender, in an unrecorded in‐
terview, that he had stained his pants with bleach as he
helped clean the floor of Avery’s garage. Wiegert testified
that after those interviews he thought Dassey might have
had some culpability in the criminal disposal of Halbach’s
corpse. R. 19‐12 at 18–21; R. 19‐30 at 38.
On March 1, 2006, the officers returned to Dassey’s
school for a fourth interview. They read Dassey his Miranda
rights, and he again agreed to speak with them. Wiegert and
Fassbender first drove Dassey to his house on the Avery
property to retrieve the bleach‐stained jeans and then drove
him forty‐five minutes away to the Manitowoc County Sher‐
iff’s Department. The State asserted that it asked Janda for
permission to interview her son. R. 19‐19 at 12; 19‐30 at 156.
Janda claimed that the investigators never asked her if she
wanted to be present for the interview. R. 19‐30 at 156. This
fourth interview produced a confession that became the key
evidence against Dassey at his trial.
The March 1 interview lasted three hours, with one half‐
hour break, and then a second fifty‐minute break at the end
before Dassey was taken into custody. The interrogation was
conducted in what is known as a “soft room” in the Sheriff’s
Department—one with a small couch, two soft chairs and
lamps. Dassey was offered food, drink, and access to a re‐
stroom at the start and at various times throughout the in‐
terview. The investigators reminded Dassey of his Miranda
rights, and the interview was audio and video recorded. No
adult was present on Dassey’s behalf.
Dassey’s March 1 confession unfolded as follows in this
very brief summary: Dassey first admitted only to helping
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Avery clean some fluid from the garage floor after Avery cut
a line of the vehicle on which he was working. Eventually,
after much encouragement, the story evolved to one in
which Dassey saw Halbach’s already dead, clothed, and tied
up body in the back of her RAV4 and helped Avery put her
body in a bonfire. In the next iteration, he reported hearing
screaming at Avery’s house as he brought Avery his mail.
He entered and found a sweaty Avery and saw Halbach na‐
ked and handcuffed to Avery’s bed. Finally, Dassey admit‐
ted to a horrific series of crimes—raping Halbach, cutting
her throat, tying her up, cutting her hair, and then taking her
to the garage where Avery shot her in the head and the two
of them disposed of her body in the fire. Although we report
the evolution of his confession linearly, it is far from that.
Dassey’s story changes; he backtracks; officers try to pin him
down on time frames and details, but they are like waves on
the sand. Even the State has trouble telling its version of the
timeline of the story in any cogent manner due to the fact
that it changed with each re‐telling. See Brief of Respondent‐
Appellant at 9, n.3. Although the State presents a cogent sto‐
ry line in its brief on appeal, it does so by picking and choos‐
ing pieces from various versions of Dassey’s recitations.
At the very end of the confession, Dassey’s mother en‐
tered the interrogation room and the following exchange oc‐
curred after the officers left the room:
Brendan:
I got a question?
Barb Janda: What’s that?
Brendan: What’d happen if he says some‐
thing his story’s different? Wh‐he says he, he
admits to doing it?
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Barb Janda: What do you mean?
Brendan: Like if his story’s like different,
like I never did nothin’ or somethin’.
Barb Janda: Did you? Huh?
Brendan:
Not really.
Barb Janda: What do you mean not really?
Brendan:
They got to my head.
R. 19‐25 at 148. At that point, one of the officers reentered the
room and the conversation ended. We will fill in the remain‐
ing details of this confession as we discuss the voluntariness
of it, vel non, in the following sections.
Almost the entirety of the State’s case rested on these in‐
terviews and one phone call between Dassey and his mother
after his final police interview which we describe below.
There was no physical evidence linking Dassey to the mur‐
der of Halbach—investigators did not find any of Dassey’s
DNA or blood on any of the many objects that were men‐
tioned in his confession—the knives in Avery’s house, gun,
handcuffs, bed, RAV4, key, or automotive dolly.
After his arrest, the state public defender’s office ap‐
pointed private attorney Len Kachinsky to represent Dassey.
Kachinsky met with Dassey on March 10, 2006. Dassey told
Kachinsky that he was innocent, that his confession was not
true, and that he wanted to take a polygraph test. After this
meeting, despite Dassey’s claims of innocence, Kachinsky
spoke to the media and described Dassey as sad, remorseful,
and overwhelmed. The media reported that Kachinsky
blamed Avery for “leading Dassey down the criminal path”
and said that he had not ruled out a plea deal. R. 19‐39 at 4,
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9–11. Over the next few days, nearly all of Kachinsky’s work
on Dassey’s case involved communicating with the local
media, during which appearances he stated that “there is
quite frankly, no defense,” and that all of the investigation
techniques were standard and legitimate, despite the fact
that Kachinsky had not yet watched the recorded police in‐
terview R. 19‐26 at 142, 144–45, 153, 170. During each of Ka‐
chinsky’s media appearances he indicated that Dassey was
guilty and would likely accept a plea. Kachinsky testified at
a post‐conviction relief hearing that one of his reasons for
making these statements to the media was so that Dassey
and his family would become “accustomed to the idea that
Brendan might take a legal option that they don’t like. …”
R. 19‐26 at 136–37. Eventually the prosecutor sent an email to
Kachinsky expressing concern about the pretrial media ap‐
pearances and referred Kachinsky to the relevant rules of
ethics for attorneys.
In the meantime, Kachinsky hired investigator Michael
O’Kelly, with whom he was not familiar, to help in the in‐
vestigation of the case and to conduct the polygraph exami‐
nation that Dassey had requested. Despite Dassey’s claims of
innocence, Kachinsky and O’Kelly proceeded on the as‐
sumption that Dassey would plead guilty and assist the
prosecution in Avery’s case. O’Kelly testified at the state
post‐conviction hearing that his goal was to uncover infor‐
mation and evidence that would bolster the prosecution’s
case against Avery even if that “evidence would tend to in‐
culpate Brendan,” R. 19‐29 at 47, and that his “emotions sid‐
ed with what happened to Teresa Halbach.” Id. at 96. Ka‐
chinsky and O’Kelly even sent information to the prosecu‐
tion about the location of a knife they thought had been used
in the crime, based on what they had cajoled from Dassey,
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but searches pursuant to those tips did not produce any evi‐
dence.
To effectuate his plan to garner Dassey’s cooperation in
Avery’s prosecution, Kachinsky decided that the investiga‐
tor, O’Kelly, should re‐interview Dassey and compel him to
confess yet again, and should do so after the trial judge de‐
nied the motion to suppress his March 1 interview, when he
would be most vulnerable. R. 19‐26 at 244.
Shortly before interviewing Dassey, O’Kelly wrote to Ka‐
chinsky and referred to the Avery family as “criminals” and
asserted that family members engaged in incestuous sexual
conduct and had a history of stalking women. R. 19‐29 at 93.
He continued, “This is truly where the devil resides in com‐
fort. I can find no good in any member. These people are
pure evil.” Id. O’Kelly quoted a friend as having said, “This
is a one branch family tree. Cut this tree down. We need to
end the gene pool here.” Id. at 94. O’Kelly thought that Das‐
sey’s claim of innocence was an “unrealistic” “fantasy” that
was influenced by his family. R. 19‐29 at 83, 84, 86–88. On
O’Kelly’s recommendation, Kachinsky canceled a planned
visit with Dassey because Dassey “needs to be alone.” R. 19‐
26 at 248–49. O’Kelly said, “He needs to trust me and the di‐
rection that I steer him into.” R. 19‐26 at 249.
O’Kelly began his interview with Dassey, which he video
recorded without permission from Dassey’s parents, by
pointing to what he said were the polygraph examination
results on a laptop computer screen and asking Dassey if he
could read them. R. 19‐38 at 1. Despite having previously
told Kachinsky that the results of the polygraph examination
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were inconclusive R. 19‐26 at 210,2 O’Kelly told Dassey that
the polygraph indicated deception and that the probability
of deception was 98%. R. 19‐38 at 1. When Dassey asked
what that meant, O’Kelly asked what he thought it meant.
R. 19‐38 at 1. Dassey responded, “That I passed it?” R. 19‐38
at 1. “It says deception indicated,” O’Kelly responded, em‐
phasizing “deception.” Id. After a long pause, Dassey asked,
“That I failed it[?]” Id.
O’Kelly proceeded to harangue Dassey with photographs
and personal effects of Halbach, threaten him with life in
prison, and badger him to admit that he was sorry. Dassey
continued to profess his innocence, insisting, “I don’t know
[if I’m sorry], because I didn’t do anything,” to which
O’Kelly responded, “If you’re not sorry, I can’t help you …
Do you want to spend the rest of your life in prison? You did
a very bad thing.” R. 19‐38 at 2. Dassey responded, “Yeah,
but I was only there for the fire though.” Id.
2 Dassey’s lawyer hired an expert who was prepared to testify that the
polygraph showed no deception, but the state trial judge excluded any
testimony about the polygraph. R. 19‐30 at 231–233. The reliability and
validity of polygraph evidence is hotly debated in the legal and scientific
community. United States v. Scheffer, 523 U.S. 303, 309 (1998). There is not
a set standard of scoring for Polygraph examinations. In some numerical
scoring systems, “the scores range from 3 for a dramatic reaction to a
control question to ‐3 for the same type of reaction to a relevant question.
Noticeable but smaller reactions are scored 1 or ‐1. A lack of a significant
reaction is scored 0. Total scores of 6 or higher indicate truthfulness,
while ‐6 or lower indicate deception. Scores that fall in between are con‐
sidered inconclusive.” Paul C. Giannelli, Polygraph Evidence: Post‐Daubert,
49 Hastings L.J. 895, 909 (1998). The record does not reflect what system
O’Kelly used to score Dassey’s polygraph examination. R. 19‐29 at 21–22.
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Eventually O’Kelly’s plan prevailed after he convinced
Dassey that if he confessed he would be sentenced to only
twenty years in prison and could someday be released and
have a family. (The government had not, in fact, placed any
plea deal on the table.) Otherwise, O’Kelly threatened, Das‐
sey would go to prison for the rest of his life. After a gruel‐
ing interrogation by O’Kelly, Dassey confessed, providing
yet another version of the story. O’Kelly immediately tele‐
phoned Kachinsky who arranged for Dassey to undergo an‐
other police interrogation the next day, May 13. Kachinsky
did not arrange for any immunity agreements, plea offers, or
other safeguards. In fact, he agreed that the State would
provide “no consideration” in exchange for a second chance
to interrogate (the police considered this to be only the sec‐
ond interrogation because they considered the first few
meetings to be “witness interviews.”) R. 19‐26 at 80; R. 19‐27
at 34–38. Kachinsky did not accompany Dassey to this meet‐
ing and allowed him to be interrogated without counsel.
That interview differed in many significant ways from the
story Dassey told on March 1, but it was never admitted or
used at trial.
At the end of the May 13 interview, Fassbender and
Wiegert advised Dassey that he should call his mother over
the recorded jail telephone line and admit his guilt so that
she would hear it from him first rather than from the offic‐
ers. Dassey’s mother was scheduled to visit him the follow‐
ing day, but the investigators told him that it would be a
“good idea to call her before she gets here, tonight. That’s
what I’d do. Cuz, otherwise she’s going to be really mad to‐
morrow. Better on the phone, isn’t it?” R. 19‐34 at 69. The
contents of that telephone call are set forth in the district
court opinion. Dassey v. Dittmann, 201 F. Supp. 3d at 980–81.
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In that call, Dassey explained why he was confessing (for a
lower sentence), told his mother that he did “some of it” but
denied having sexual contact with Halbach, denied seeing
her in the fire, denied knowing if Avery killed Halbach but
asked, “So if I was in the garage cleaning up that stuff on the
floor, how much time will I get though for that?” R. 19‐35 at
8. He described the liquid on the floor as “reddish‐black
stuff.” Id.
When the trial court learned that Kachinsky had allowed
Dassey to be interviewed without counsel, it held a hearing
on the effectiveness of Kachinsky’s counsel. The trial court
concluded that Kachinsky’s performance was indefensible
and deficient under the standards set forth in Strickland v.
Washington, 467 U.S. 1267 (1984). The trial judge decertified
Kachinsky from being appointed in most felony matters go‐
ing forward, noting particularly the egregiousness of the fact
that Kachinsky had “allowed his 16‐year‐old client, who
previous testimony has disclosed to have cognitive ability
within borderline to below average range, to be interviewed
by law enforcement officials without his attorney present.”
R. 19‐14 at 22. The decertification was prospective only and
thus did not directly apply to Kachinsky’s representation of
Dassey. Nevertheless, Kachinsky moved to withdraw as
Dassey’s counsel, and the court granted the motion.
The trial court never learned that Kachinsky and O’Kelly
had worked to compel Dassey’s confession, videotaped
O’Kelly interrogating Dassey, exchanged e‐mails describing
the whole family as “evil” and “criminals,” and, without
Dassey’s knowledge or consent, sent an e‐mail to prosecu‐
tors on May 5 indicating where they thought the murder
weapon was hidden. No murder weapon was ever found.
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These facts did not come to light until the state post‐
conviction hearing.
The May 13 interrogation that grew from the poisoned
tree of the O’Kelly interrogation was neither used nor dis‐
cussed at trial, but the trial court never made any explicit
ruling on its admissibility. At oral argument the State was
unable to tell this court why the May 13 interview was not
used at trial, but we will assume that based on what the
State concedes was unacceptable representation by Ka‐
chinsky, the State recognized that the May 13 interview had
been irreparably poisoned. But the May 13 phone call that
resulted from the May 13 interrogation—the phone call the
police had urged Dassey to make to his mother on the rec‐
orded jail telephone line—was used three times at trial: once
to cross examine Dassey; once to cross‐examine Dassey’s ex‐
pert psychologist, and in closing argument to undermine
Dassey’s alibi.
At trial, the centerpiece of the prosecution’s case was
Dassey’s March 1 confession, in which he admitted to partic‐
ipating in the alleged sexual assault and murder of Halbach
as well as the disposal of her body. Dassey’s defense was
that his confession was not true or voluntary, that he accept‐
ed his uncle’s invitation to a bonfire and then helped him
gather items from the salvage yard to burn before helping
Avery clean up something that looked like automotive fluid
from the garage floor, staining his pants with bleach in the
process. Dassey testified that he did not know why he had
said the things that he did to the police investigators and
that he thought that the investigators had promised that he
would not go to jail no matter what he told them.
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At trial, Dassey’s attorneys presented evidence that the
answers in his confession came not from Dassey, but from
ideas planted by the investigators, that the investigators con‐
tinually linked the idea that if Dassey gave them the answers
they wanted to hear, that he would be okay and set free, and
that Dassey was extremely suggestible and would say things
to please the investigators and avoid conflict.3 One example
that the jury saw, as they watched the four hour interroga‐
tion, concerned Halbach’s shooting. By the time of the March
1 confession, forensic examiners had informed law enforce‐
ment that Halbach had been shot in the head, but this infor‐
mation was not yet public. If Dassey could tell the investiga‐
tors that Halbach had been shot in the head, it would have
been strong evidence of the veracity of his confession. Das‐
sey had never mentioned that Halbach was shot. Conse‐
quently, the investigators repeatedly asked Dassey what else
happened to Halbach. After many, many attempts at this,
they became more specific and asked “What else did he do
to her? … Something with the head.” R. 19‐25 at 60. But even
this clue was not enough to elicit the information they want‐
ed and instead triggered a litany of apparent guesses from
Dassey that bordered on the absurd. Dassey guessed that her
hair had been cut, that she had been punched, that her throat
had been cut—each time being told by the investigators that
was not what they were looking for, until finally, Wiegert
became frustrated and asked, “All right, I’m just gonna come
out and ask you. Who shot her in the head?” Id. at 63. This
was one of the few scenarios that Dassey had not guessed at
that point. As we will explore below, this pattern of sugges‐
tive questioning continued throughout the interrogation.
3 Dassey and Avery were tried separately.
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The defense also presented the testimony of a forensic
psychologist, Dr. Robert Gordon, who testified that he re‐
viewed many years of Dassey’s school records, performed a
mental status examination of Dassey, and tested Dassey us‐
ing various established psychological tests. R. 19‐22 at 23–
166. His ultimate conclusion was that Dassey had several
characteristics likely to make him unusually suggestible in
interrogation situations. Dr. Gordon described Dassey’s
thought process as slow with a mild to moderate mental im‐
pairment. His test results demonstrated that Dassey per‐
formed on the extreme ends of the scales for social avoid‐
ance (being socially passive and withdrawn), social introver‐
sion, and social alienation (alienated from society and cut off
from those with whom he interacts). Dassey scored in the
99th percentile for social avoidance, the 97th percentile for
social introversion and 98.5th percentile for social alienation.
On other tests, Dassey’s results indicated that he was shy,
passive, subdued and dependent—qualities that make one
more susceptible to suggestion. Dr. Gordon also testified
that Dassey had low average to borderline intelligence (IQ
tests ranged from the low 70s to 84, or in the 10‐13% percen‐
tile of intelligence). Gordon also administered the Gudjons‐
son Suggestibility Scales, a test developed by a forensic psy‐
chologist and a leading expert in confessions, which is de‐
signed to measure interrogative suggestibility. The results
indicated that Dassey was more suggestible than 95% of the
population. Dr. Gordon also explained how, based on all of
his characteristics, Dassey would have been manipulable
and vulnerable to the particular interrogation techniques
used, including mild pressure and leading questions. He
noted that a suggestible person would be particularly
swayed by false information of guilt, minimization of the se‐
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riousness of the crime, blaming other participants for their
influence, or promises that family members will be spared
trouble if the suspect confesses. Id. at 62. In a short rebuttal,
the State presented psychologist Dr. James Armentrout, who
expressed discomfort with the suggestibility testing and did
not agree with the conclusion that Dassey was particularly
suggestible. Id. at 177–225.
After five and a half hours of deliberation, the jury found
Dassey guilty on all counts. On August 2, 2007, the trial
court sentenced Dassey to life in prison for first‐degree in‐
tentional homicide, not eligible for release to extended su‐
pervision until November 1, 2048. R. 19‐2 at 15–16. The court
further sentenced Dassey to six years of imprisonment for
mutilating a corpse, and fourteen years imprisonment for
second‐degree sexual assault, both to be served concurrently
with the murder sentence. Id.; Dassey v. Dittmann, 201 F.
Supp. 3d at 985. Dassey appealed his conviction without
success.
Dassey moved for post‐conviction relief in the trial court
claiming that his pre‐trial and trial counsel provided ineffec‐
tive assistance and that his March 1 confession was involun‐
tary. Upon his motion, the Wisconsin state court held a five‐
day hearing, beginning January 15, 2010, which included the
testimony of Dassey’s mother, his school psychologist, one
of his trial attorneys, the prosecutor, a social psychologist,
Kachinsky, O’Kelly, and Richard Leo, an expert on false con‐
fessions. The circuit court of Wisconsin denied Dassey post‐
conviction relief on December 13, 2010.
On appeal of the post‐conviction ruling, the Wisconsin
Court of Appeals stated that it was evaluating Dassey’s
claim of involuntariness on the totality of the circumstances,
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“balancing the defendant’s personal characteristics against
the police pressures used to induce the statements.” State v.
Dassey, No. 2010AP3105, 2013 WL 335923 at *1, Wi. App. 30,
¶5, *1, 827 N.W.2d 928 (table) (Wisc. Ct. App., Jan. 30, 2013).4
That evaluation boiled down to just a few sentences in the
following two paragraphs:
¶ 6 The trial court found that Dassey had a
“low average to borderline” IQ but was in
mostly regular‐track high school classes; was
interviewed while seated on an upholstered
couch, never was physically restrained and
was offered food, beverages and restroom
breaks; was properly Mirandized; and did not
appear to be agitated or intimidated at any
point in the questioning. The court also found
that the investigators used normal speaking
tones, with no hectoring, threats or promises of
leniency; prodded him to be honest as a re‐
minder of his moral duty to tell the truth; and
told him they were “in [his] corner” and would
“go to bat” for him to try to achieve a rapport
with Dassey and to convince him that being
truthful would be in his best interest. The court
concluded that Dassey’s confession was volun‐
tary and admissible.
¶ 7 The court’s findings are not clearly errone‐
ous. Based on those findings, we also conclude
4 We will refer to the state appellate court decision as “State v. Dassey”
and the federal district court opinion on the writ of habeas corpus as
“Dassey v. Dittmann.”
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that Dassey has not shown coercion. As long as
investigators’ statements merely encourage
honesty and do not promise leniency, telling a
defendant that cooperating would be to his or
her benefit is not coercive conduct. State v.
Berggren, 2009 WI App 82, ¶ 31, 320 Wis.2d 209,
769 N.W.2d 110. Nor is professing to know
facts they actually did not have. See State v.
Triggs, 2003 WI App 91, ¶¶ 15, 17, 264 Wis.2d
861, 663 N.W.2d 396 (the use of a deceptive tac‐
tic like exaggerating strength of evidence
against suspect does not necessarily make con‐
fession involuntary but instead is a factor to
consider in totality of circumstances). The truth
of the confession remained for the jury to de‐
termine.
State v. Dassey, 2013 WL 335923 at *2. Although the state ap‐
pellate court listed Dassey’s characteristics and some of the
circumstances of his interrogation, as we will describe in de‐
tail below, it did not do the one thing that the Supreme
Court requires which is to use “special caution” when as‐
sessing the voluntariness of juvenile confessions. J.D.B. v.
North Carolina, 564 U.S. 261, 269 (2011); In re Gault, 387 U.S. 1,
45 (1967); Gallegos v. Colorado, 370 U.S. 49, 53–54, (1962); Ha‐
ley v. Ohio, 332 U.S. 596, 599–601 (1948). Paragraph 6 of the
appellate court decision lists Dassey’s age and intellectual
limitations, but then, in paragraph 7, the only paragraph that
analyzes whether Dassey’s confession was voluntary or co‐
erced, it merely applies the same analysis that would apply
to an adult with full intellectual capabilities. Specifically, the
state appellate court concluded that tactics such as encourag‐
ing honesty and the use of deceptive practices that are not
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considered coercive when used with adults must not have
been coercive when used on the intellectually challenged, 16‐
year‐old Dassey. A state court’s evaluation need not be
lengthy or detailed, but it must at the very least meet the
bare minimum requirements of Supreme Court precedent.
The admonition to assess juvenile confession with special
caution has no meaning if a state appellate court can merely
mention a juvenile’s age and then evaluate the voluntariness
of his confession in reference to the standard for adults of
ordinary intelligence. And if a court can merely state the ge‐
neric Supreme Court rule without any analysis, then no fed‐
eral court could ever find that “a decision … involved an un‐
reasonable application of clearly established Federal law”
pursuant to 28 U.S.C. § 2254(d)(1)
In juveniles, the evaluation of the totality of the circum‐
stances “includes evaluation of the juvenile’s age, experi‐
ence, education, background, and intelligence, and into
whether he has the capacity to understand the warnings giv‐
en him, the nature of his Fifth Amendment rights, and the
consequences of waiving those rights.” Fare v. Michael C., 442
U.S. 707, 725 (1979); see also Murdock v. Dorethy, 846 F.3d 203,
209 (7th Cir. 2017); Hardaway v. Young, 302 F.3d 757, 762 (7th
Cir. 2002). At no time did the state appellate court evaluate
any of these factors, other than to merely list some of them.
It did not provide any analysis of how Dassey’s personal
characteristics played a role in the interrogation. It did not
consider Dassey’s suggestibility, did not discuss the fact that
he was unrepresented and without a parent’s assistance, and
it did not consider whether Dassey’s low IQ and learning
disabilities may have affected how he interpreted statements
made by interrogators. The court never evaluated Dassey’s
capacity to understand the warnings given him, the nature
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of his Fifth Amendment rights, and the consequences of
waiving those rights. In short, the state appellate court did
not identify the correct test at all and did not apply it correct‐
ly.
The state appellate court also declined to overrule the
lower court’s decision denying Dassey’s claim of ineffective
assistance of counsel. As for Kachinsky’s conceded deficien‐
cies, the court stated that he was “long gone before Dassey’s
trial or sentencing. Dassey has not convinced us that Ka‐
chinsky’s actions amounted to an actual conflict and that
Kachinsky’s advocacy was adversely affected, such that it
was detrimental to Dassey’s interests.” Id. at *4. And in ref‐
erence to trial counsel’s performance, the appellate court
held that the trial court had not erred when it determined
that each of Dassey’s claims of ineffective assistance of trial
counsel was based on his attorneys’ reasonable tactical strat‐
egies. Id. at *6.
After the Wisconsin Supreme Court denied his petition
for review, Dassey filed a petition for a writ of habeas corpus
in the federal district court pursuant to 28 U.S.C. § 2254,
claiming that he was denied his rights to effective assistance
of counsel under the Sixth Amendment of the United States
Constitution, and that his March 1, 2006 confession was ob‐
tained in violation of the Fifth Amendment. The district
court concluded that although Kachinsky’s misconduct
might support a claim for relief under Strickland, Dassey
made his claims regarding Kachinsky under Cuyler v. Sulli‐
van, 446 U.S. 335 (1980), and case law demarcating the limits
of the Sullivan test prohibit the court from granting Dassey’s
habeas relief claim on that ground. Dassey, 201 F. Supp. 3d at
991–92. It further concluded that the state court of appeals’
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decision as to the admissibility of the May 13 telephone call
between Dassey and his mother was not contrary to clearly
established federal law or based on an unreasonable deter‐
mination of the facts. Id. at 992. However, the district court
concluded that “the confession Dassey gave to the police on
March 1, 2006 was so clearly involuntary in a constitutional
sense that the court of appeals’ decision to the contrary was
an unreasonable application of clearly established federal
law,” and that the admission of the confession was not
harmless error. Id. at 1005‐06. The district court ordered the
State to release Dassey from custody unless, within 90 days,
the State initiated proceedings to retry him. Id. at 1006. On
November 17, 2016, this court stayed the district court’s or‐
der releasing Dassey pending resolution of this appeal.
Court of Appeals Record, R. 22.
II.
A. The AEDPA and habeas relief.
The Antiterrorism and Effective Death Penalty Act of
1996 governs our review of a state court conviction and lim‐
its it considerably. It “erects a formidable barrier to federal
habeas relief for prisoners whose claims have been adjudi‐
cated in state court, requiring them to show that the state
court’s ruling ... was so lacking in justification that there was
an error ... beyond any possibility for fair minded disagree‐
ment.” Burt v. Titlow, 134 S. Ct. 10, 12 (2013). “[W]e may not
grant relief where reasonable minds could differ over the
correct application of legal principles, and we must evaluate
that application on the basis of the law that was ‘clearly es‐
tablished’ at the time of the state court adjudication.”
Elmore v. Holbrook, 137 S. Ct. 3, 7 (2016). A federal court re‐
viewing a habeas petition must examine the decision of the
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last state court to rule on the merits of the issue, which in
this case is the state appellate court ruling on post‐conviction
relief. Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015).
Under the AEDPA, Dassey must demonstrate that the
state court proceedings “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su‐
preme Court of the United States; or (2) resulted in a deci‐
sion that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court pro‐
ceeding.” 28 U.S.C. § 2254(d)(1) and (2). Under § 2254(d)(1),
a state‐court decision is contrary to Supreme Court prece‐
dent if it is inconsistent with the Supreme Court’s treatment
of a materially identical set of facts, or if the state court ap‐
plied a legal standard that is inconsistent with the rule set
forth in the relevant Supreme Court precedent. Bell v. Cone,
535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S.
362, 405–06 (2000)). And a state‐court decision constitutes an
unreasonable application of Supreme Court precedent with‐
in the meaning of section 2254(d)(1) when, although it iden‐
tifies the correct legal rule, it applies that rule to the facts in a
way that is objectively unreasonable. White v. Woodall, 134
S. Ct. 1697, 1705 (2014).
Under § 2254(d)(2), a state court’s decision involves an
unreasonable determination of the facts if it “rests upon fact‐
finding that ignores the clear and convincing weight of the
evidence.” Corcoran v. Neal, 783 F.3d 676, 683 (7th Cir. 2015),
cert. denied, 136 S. Ct. 1493 (2016); see also Miller‐El v. Cockrell,
537 U.S. 322, 340 (2003) (a federal court can, guided by
AEDPA, conclude that a state court’s decision was unrea‐
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sonable or that the factual premise was incorrect by clear
and convincing evidence).
In granting the writ, the district court specifically noted
that it did not reach its conclusion to declare the state court
ruling unreasonable lightly. It was, as we are, mindful of the
extremely restricted nature of habeas relief under the
AEDPA, and that mindfulness was apparent from the great
care the district court took in conscribing its ruling to the
limited role a federal court can play in reviewing the peti‐
tioner’s writ. Dassey v. Dittmann, 201 F. Supp. 3d at 986–87,
1005. The district court exhaustively surveyed Supreme
Court precedent and continuously held its analysis up to the
light of habeas restraint. See Id. at 986–87, 990–91, 1003–05.
“Deference,” however, “does not by definition preclude re‐
lief.” Miller‐El v. Dretke, 545 U.S. 231, 240 (2005). Section
2254(d)(1) allows for a grant of relief when a decision in‐
volved an unreasonable application of clearly established
Federal law. And if that section has any meaning, then it
must mean that a state court evaluating the voluntariness of
a juvenile confession must apply the factors that the Su‐
preme Court has identified as relevant to juvenile confes‐
sions.
Moreover, the district court’s grant of the writ was firmly
linked to its determination under § 2254 (d)(2) that “the state
court’s finding that there were no promises of leniency was
against the clear and convincing weight of the evidence.”
Dassey v. Dittmann, 201 F. Supp. 3d at 1003 (internal citations
omitted). “Concluding that the investigators never made any
such promises was no minor error but rather a fact that was
central to the court’s voluntariness finding.” Id. The district
court found that the determination was not merely incorrect,
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but unreasonable. Id. Secondly, the court concluded that the
state court had unreasonably applied clearly established
federal law by ignoring the totality of the circumstances in
assessing the voluntariness of Dassey’s confession. Id. at
1004. The district court noted that although the state appel‐
late court articulated the correct standard (but only as it ap‐
plied to adults), it ignored several determinative factors out‐
right and, most importantly, focused on the statements of
the investigators in isolation rather than assessing them in
view of Dassey’s personal characteristics or their cumulative
effect on the voluntariness of Dassey’s confession. Id. at 1004.
We, like the district court, have kept the strict constraints
of the AEDPA forefront in our minds as we proceed with
our de novo review of the district court’s decision to grant the
habeas petition. Rodriguez v. Gossett, 842 F.3d 531, 537 (7th
Cir. 2016).
Yet even given the constraints of the AEDPA, we must
conclude that the state court’s determination was an unrea‐
sonable application of Supreme Court precedent. Although
it identified the general rule that a court must consider the
totality of the circumstances, it failed to apply the “special
caution” required in juvenile confessions and failed to eval‐
uate the totality factors for juveniles as required. Further‐
more, the state appellate court applied the generic totality of
the circumstances test to the facts in a way that was objec‐
tively unreasonable. See 28 U.S.C. § 2254(d)(1). The trial
court’s determination of the facts was also unreasonable as it
ignored the clear and convincing weight of the evidence. See
28 U.S.C. § 2254(d)(2); Miller‐El v. Cockrell, 537 U.S. at 340.
Although the state appellate court noted that it was obligat‐
ed to consider the totality of the circumstances, it did not do
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so. As we noted, in juveniles, the evaluation of the totality of
the circumstances “includes evaluation of the juvenile’s age,
experience, education, background, and intelligence, and in‐
to whether he has the capacity to understand the warnings
given him, the nature of his Fifth Amendment rights, and
the consequences of waiving those rights.” Fare, 442 U.S. at
725; see also Murdock, 846 F.3d at 209; Hardaway, 302 F.3d at
762. The state appellate court listed Dassey’s age, education
and IQ, but it never, at any point, evaluated those factors to
determine whether they affected the voluntariness of Das‐
sey’s confession. Likewise the appellate court analyzed some
of the investigators’ interrogation techniques, but it never
evaluated or assessed how those techniques affected the
voluntariness of an intellectually challenged juvenile’s con‐
fession. Instead, the state appellate court merely stated that,
in cases involving adults of ordinary intelligence, encourag‐
ing honesty and using deceptive practices does not make a
confession involuntary.
Moreover, the state appellate court ignored the many
signs that Dassey was trying to please the interrogators and
avoid conflict and a clear‐ cut pattern of fact‐feeding linked
to promises that, together, resulted in a situation where Das‐
sey’s will clearly was overborne. That pattern was as fol‐
lows: the investigators emphasized, ad nauseum, that in or‐
der to be “okay” to “get things over with” to be “set free”
Dassey had to be “honest.” Yet throughout the interrogation
it became clear that “honesty” meant those things that the
investigators wanted Dassey to say. Whenever Dassey re‐
ported a fact that did not fit with the investigators’ theory,
he was chastised and told that he would not be “okay” un‐
less he told the truth. And this pattern continued until Das‐
sey finally voiced what the investigators wanted him to say,
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seemingly by guessing, or the investigators fed him the in‐
formation they wanted. Once he spoke “correctly,” the in‐
vestigators anchored the story by telling Dassey, “now we
believe you” to signal to him that this was the version that
would allow him to be “okay,” or “set him free.” By doing
this—by linking promises to the words that the investigators
wanted to hear, or allowing Dassey to avoid confrontation
by telling the investigators what they wanted to hear—the
confession became a story crafted by the investigators in‐
stead of by Dassey. And, as we will see, it was a confession
that therefore cannot not be viewed as voluntary.
In this case the analysis of 2254(d)(1) and 2254(d)(2) over‐
lap. The state court unreasonably applied the rule requiring
it to consider the totality of the circumstances to the facts of
the case, and those were the very same facts that the state
court determined unreasonably.
B. Voluntariness in confessions.
1. The constitutional requirement of voluntariness.
False confessions are anathema to the judicial process.
They are not beneficial to the prosecutor whose goal is to
find, punish, and incapacitate the actual criminal, they are
not beneficial to grieving relatives and friends who want to
bring justice to the perpetrator of a crime, and, of course,
they are of no benefit to a wrongfully accused defendant. For
these reasons it is obvious why coercive tactics that lead to a
false confession would be an affront to our judicial system.
But the use of involuntary confessions violates the Constitu‐
tion even when they are confessions of truth (where, in fact,
it is possible to know such a thing). “The aim of the re‐
quirement of due process is not to exclude presumptively
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false evidence, but to prevent fundamental unfairness in the
use of evidence, whether true or false.” Colorado v. Connelly,
479 U.S. 157, 167 (1986) (citing Lisenba v. California, 314 U.S.
219, 236 (1941)). The Supreme Court has long held that “cer‐
tain interrogation techniques, either in isolation or as applied
to the unique characteristics of a particular suspect, are so
offensive to a civilized system of justice that they must be
condemned under the Due Process Clause of the Fourteenth
Amendment.” Miller v. Fenton, 474 U.S. 104, 109 (1985) (cit‐
ing Brown v. Mississippi, 297 U.S. 278 (1936)). Coerced confes‐
sions also violate the Fifth Amendment’s right against self‐
incrimination. Withrow v. Williams, 507 U.S. 680, 688 (1993).
As the Supreme Court noted, “‘[A] criminal law system
which comes to depend on the confession will, in the long
run, be less reliable and more subject to abuses than a sys‐
tem relying on independent investigation.” Berghuis v.
Thompkins, 560 U.S. 370, 403–04 (2010) (internal citations
omitted).
“[T]he ultimate issue of ‘voluntariness’ is a legal question
requiring independent federal determination.” Arizona v.
Fulminante, 499 U.S. 279, 287 (1991); Miller v. Fenton, 474 U.S.
at 110. And under the AEDPA, this court must ask whether
the Wisconsin appellate court’s decision concluding that
Dassey’s confession was not involuntary “was contrary to,
or involved an unreasonable application of, clearly estab‐
lished Federal law, as determined by the Supreme Court of
the United States,” (28 U.S.C. § 2254(d)(1); Bobby v. Dixon,
565 U.S. 23, 27, (2011)), or whether it was based on an unrea‐
sonable determination of the facts in light of the evidence
presented in the state court proceeding. 28 U.S.C.
§ 2254(d)(2).
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2. The risks of coercion on voluntariness.
Historically, courts have looked at traditional modes of
coercion in evaluating whether the defendant voluntarily
confessed—that is, whether the suspect was tortured, beaten,
or deprived of sleep, food or water. The Supreme Court and
the community of experts on confessions have long recog‐
nized, however, that psychological coercion can be as pow‐
erful a tool as physical coercion. Fulminante, 499 U.S. at 287.
The primary cause of police‐induced false con‐
fessions is the use of psychologically coercive
police interrogation methods. These include
methods that were once identified with the old
“third degree,” such as deprivation (of food,
sleep, water, or access to bathroom facilities,
for example), incommunicado interrogation,
and extreme induced exhaustion and fatigue.
Since the 1940s, however, these techniques
have become rare in domestic police interroga‐
tions. Instead, when today’s police interroga‐
tors employ psychologically coercive tech‐
niques, they usually consist of implicit or ex‐
plicit promises of leniency and implicit or ex‐
plicit threats of harsher treatment in combina‐
tion with other interrogation techniques such
as accusation, repetition, attacks on denials,
and false evidence ploys.
Jon B. Gould & Richard A. Leo, One Hundred Years Later:
Wrongful Convictions After A Century of Research, 100 J. Crim.
L. & Criminology 825, 846 (2010).
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In closing arguments at trial, the state argued that “peo‐
ple who are innocent don’t confess.” R. 19‐23 at 144. We
know, however, that innocent people do in fact confess and
do so with shocking regularity. The National Registry of Ex‐
onerations has collected data on 1,994 exonerations in the
United States since 1989 (as of February 26, 2017), and that
data includes 227 cases of innocent people who falsely con‐
fessed.5 This research indicates that false confessions (de‐
fined as cases in which indisputably innocent individuals
confessed to crimes they did not commit) occur in anywhere
from 15‐24% of wrongful convictions cases. Samuel Gross &
Michael Shaffer, Exoneration in the United States, 1989‐2012:
Report by the National Registry of Exonerations, 60.6
3. The heightened risks of coercion for youth and
the intellectually disabled.
Nowhere is the risk of involuntary and false confessions
higher than with youth and the mentally or intellectually
disabled. It is for this reason that the Supreme Court has
cautioned courts to exercise “special caution” when as‐
5 The
National Registry of Exonerations, False Confessions,
http://www.law.umich.edu/special/exoneration/Documents/Exoneration
s in_2016.pdf at p.3; and
http://www.law.umich.edu/special/exoneration/Pages/false‐confessions‐
.aspx.
The registry defines exoneration based on specific criteria available at
http://www.law.umich.edu/special/exoneration/Pages/glossary.aspx. The
summary definition is as follows: an exoneration occurs when a person
who has been convicted of a crime is officially cleared based on new evi‐
dence of innocence. Id.
6
https://www.law.umich.edu/special/exoneration/Documents/ exonera‐
tions_us_1989_2012_full_report.pdf.
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sessing the voluntariness of juvenile confessions. J.D.B., 564
U.S. at 269; In re Gault, 387 U.S. at 45; Gallegos, 370 U.S. at 53–
54, (1962); Haley, 332 U.S. at 599–601.
Indeed, the pressure of custodial interrogation
is so immense that it “can induce a frightening‐
ly high percentage of people to confess to
crimes they never committed.” That risk is all
the more troubling—and recent studies sug‐
gest, all the more acute—when the subject of
custodial interrogation is a juvenile.
J.D.B., 564 U.S. at 269 (internal citations omitted). In one of
the seminal juvenile coerced‐confession cases, the Court not‐
ed that interrogators must treat minors more carefully when
questioning them as “[t]hat which would leave a man cold
and unimpressed can overawe and overwhelm a lad in his
early teens.” Haley, 332 U.S. at 599.
As the amicus curiae and related articles demonstrate,
data supports the Supreme Court’s admonition for special
care. A survey of false confession cases from 1989–2012
found that 42% of exonerated defendants who were younger
than 18 at the time of the crime confessed, as did 75% of ex‐
onerees who were mentally ill or mentally retarded, com‐
pared to 8% of adults with no known mental disabilities.
Samuel Gross & Michael Shaffer, Exoneration in the United
States, 1989‐2012: Report by the National Registry of Exoner‐
ations, 58.7 Overall, one sixth of the exonerees were juve‐
niles, mentally disabled, or both, but they accounted for 59%
of false confessions. Id. In another study of those exonerated
7
https://www.law.umich.edu/special/exoneration/Documents/ exonera‐
tions_us_1989_2012_full_report.pdf.
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by DNA, juveniles accounted for one third of all false con‐
fessions. Brandon L. Garrett, The Substance of False Confes‐
sions, 62 Stan. L. Rev. 1051, 1094 (2010). Indeed, age and in‐
tellectual disability are the two most commonly cited charac‐
teristics of suspects who confess falsely. Samuel R. Gross,
Kristen Jacoby, Daniel J. Matheson, and Nicholas Montgom‐
ery, Exonerations in the United States 1989 through 2003,
95 J. Crim. L. & Criminology 523, 545 (2005).8 Dassey suf‐
fered under the weight of both youth and intellectual deficit
and thus the state court was required, by a long history of
Supreme Court precedent, to assess the voluntariness of his
confession with great care, yet the state appellate court did
not do so. Although it mentioned Dassey’s age and low IQ it
never made any assessment about how the interrogation
techniques could have affected a person with these charac‐
teristics.
4. The totality of the circumstances requirement for
assessing voluntariness.
There is no magic formula or even an enumerated list for
assessing the voluntariness of a confession. Such an assess‐
ment depends, instead, upon the totality of the circumstanc‐
es. Withrow, 507 U.S. at 693; Schneckloth v. Bustamonte, 412
U.S. 218, 226 (1973). An incriminating statement is voluntary
“if, in the totality of circumstances, it is the product of a ra‐
tional intellect and free will and not the result of physical
abuse, psychological intimidation, or deceptive interrogation
tactics that have overcome the defendant’s free will.” Carrion
v. Butler, 835 F.3d 764, 775 (7th Cir. 2016). Police conduct
8 http://scholarlycommons.law.northwestern.edu/jclc/vol95/iss2/5.
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may be unduly coercive because of the inherent nature of the
conduct itself or because “in the particular circumstances of
the case, the confession is unlikely to have been the product
of a free and rational will.” Miller v. Fenton, 474 U.S. at 110.
“The admissibility of a confession turns as much on whether
the techniques for extracting the statements, as applied to
this suspect, are compatible with a system that presumes in‐
nocence and assures that a conviction will not be secured by
inquisitorial means as on whether the defendant’s will was
in fact overborne.” Id. at 116 (emphasis in original). In short,
a court must look at the interplay between the characteristics
of the defendant and the nature of the interrogation. A sim‐
ple recitation of each, as the state appellate court did here, is
not sufficient.
Factors that courts consider as part of the totality of the
circumstances include the length of the interrogation, its lo‐
cation, its continuity, the defendant’s maturity, education,
physical condition, mental health, and whether the police
advised the defendant of his right to remain silent and have
counsel present. Withrow, 507 U.S. at 693–94. In juveniles, as
we have noted, the evaluation of the totality of the circum‐
stances “includes evaluation of the juvenile’s age, experi‐
ence, education, background, and intelligence, and into
whether he has the capacity to understand the warnings giv‐
en him, the nature of his Fifth Amendment rights, and the
consequences of waiving those rights.” Fare, 442 U.S. at 725);
see also Murdock, 846 F.3d at 209; Hardaway, 302 F.3d at 762.
The state appellate court did not give Dassey’s confession
the consideration required when evaluating the voluntari‐
ness of a confession of an intellectually disabled juvenile.
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5. Cases as guideposts for a voluntariness assess‐
ment.
By surveying the Supreme Court cases on the voluntari‐
ness of juvenile confessions one can see how much the
unique characteristics of both the defendant and the interro‐
gation play into the assessment of voluntariness. For this
reason, other cases can only act as broad guideposts. “De‐
termination of whether a statement is involuntary requires
more than a mere color‐matching of cases. It requires careful
evaluation of all the circumstances of the interrogation.”
Mincey v. Arizona, 437 U.S. 385, 401 (1978) (internal citations
omitted).
For example, in Haley, the Supreme Court held that the
methods used in obtaining the confession of a fifteen‐year‐
old boy could not be squared with the due process com‐
manded by the Fourteenth Amendment. Haley, 332 U.S. at
599. Haley was arrested at midnight and interrogated for
five straight hours by six officers in relays, after which time
he confessed without being told his rights. Id. He was then
informed of his rights and signed a written confession. Only
after another three days of isolation did the police allow him
access to his parents or a lawyer. Id. That confession, the
court found, could not be deemed voluntarily made.
Likewise for fourteen‐year‐old Robert Gallegos, who was
picked up by the police for assault and robbery and immedi‐
ately admitted to a crime. Gallegos, 370 U.S. at 50. He was
locked in juvenile hall for five days without access to a law‐
yer or his parents, despite his mother’s attempts to see him,
after which time he signed a confession. Id. The court con‐
cluded that a fourteen year old in those circumstances would
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have had no way to know what the consequences of his con‐
fession were without advice as to his rights. Id. at 54.
In contrast, in Fare, a sixteen‐year‐old with rather exten‐
sive prior experience in the criminal system confessed to
murder after being informed of his Miranda rights. Fare, 442
U.S. at 709–11. The Supreme Court found that “there is no
indication that he was of insufficient intelligence to under‐
stand the rights he was waiving, or what the consequences
of that waiver would be. He was not worn down by improp‐
er interrogation tactics or lengthy questioning or by trickery
or deceit.” Id. at 726–27. And therefore, based on the totality
of the circumstances, the confession was not coerced and
thus admissible. Id. at 727.
The cases from this circuit also demonstrate how we have
applied Supreme Court precedent to determine the reasona‐
bleness of a state court’s determination of voluntariness.
Derrick Hardaway was only fourteen years old when the po‐
lice roused him from his sleep at 8:00 a.m., and took him to
the police station without his parents. Hardaway, 302 F.3d at
760. He was not handcuffed and remained in an unlocked
interrogation room until he was interviewed at 10:30 am and
then interrogated for six hours, given a break for a few
hours, and then interrogated again for another four hours. A
youth advocate joined the interrogation but never once
spoke up to aid Hardaway. A clearly torn panel of this court
could not find that the state appellate court erred when it
held that the confession was voluntary, even if we might
have come to a different conclusion had we been deciding
the matter ourselves in the first instance.
There is no doubt that Hardaway’s youth, the
lack of a friendly adult, and the duration of his
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interrogation are strong factors militating
against the voluntariness of his confession; in‐
deed, it seems to us that on balance the confes‐
sion of a 14–year–old obtained in those circum‐
stances may be inherently involuntary.
Id. at 767. Nevertheless, we concluded, the state court had
considered the relevant factors and because “the weighing of
factors under the totality of circumstances test is a subject on
which reasonable minds could differ,” we could not hold
that the state court had been unreasonable. Id. The state
court, we explained, noted that the officers did not psycho‐
logically trick the defendant or misrepresent evidence, but
rather Hardaway confessed after being confronted with
truthful contradictory evidence. The state court carefully
considered Hardaway’s nineteen previous encounters with
law enforcement, the fact that the police not only read Hard‐
away his rights but that Hardaway was able to articulate
them back in his own words, and that Hardaway did not
have any mental incapacity or other mental infirmities. Id. at
767–78. Thus the state court seemed to have considered suf‐
ficiently the interaction between Hardaway’s limitations and
the interrogation.
Similarly, in Carter v. Thompson, 690 F.3d 837, 844 (7th
Cir. 2012), despite the fact that we were “unsettled” that a
16‐year‐old was in the police station for fifty‐five hours
without a blanket, pillow, change of clothes, or access to a
shower, and without being told she could leave, we could
not find that the state courts had been unreasonable in find‐
ing that her confession was voluntary. Id. The state court had
considered all of these factors, along with the fact that the
police read Carter her rights, her parents were with her for
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two of her three confessions, and her confession occurred
impromptu, as she was on her way to the bathroom. Id.
Finally, in Etherly v. Davis, 619 F.3d 654, 662 (7th Cir.
2010), as amended on denial of reh’g and reh’g en banc (Oct. 15,
2010), we reversed a district court grant of a writ of habeas
corpus, disagreeing with the lower court’s assessment that
the Illinois appellate court had not properly addressed and
considered all of the relevant factors in its analysis, noting
that reasonable jurists could disagree about the weight to
assign to each factor. Id. The Illinois appellate court, we con‐
cluded, evaluated and discussed the importance of the de‐
fendant’s age, whether a friendly adult was present, his in‐
tellectual disability, lack of criminal background, whether
police engaged in physical or psychological coercion, and
the defendant’s assertion that he understood his Miranda
rights. Id. at 662. And despite agreeing that the state appel‐
late court had been unreasonable in concluding that a fif‐
teen‐year‐old, with no prior criminal experience, should be
expected to seek the advice of a youth officer, this court con‐
cluded that this “lone error is not of such magnitude as to
result in an unreasonable application of Supreme Court
precedent under AEDPA.” Id. at 662–63.
In general, our cases demonstrate that we show great
deference to state court adjudications where it is clear that
the state court considered the totality of the circumstances
cumulatively, in light of the defendant’s age and intellect,
and without omitting or overlooking relevant factors bearing
on the voluntariness of a juvenile confession. Murdock, 846
F.3d at 210–11; Gilbert v. Merch., 488 F.3d 780, 794 (7th Cir.
2007); Ruvalcaba v. Chandler, 416 F.3d 555, 561–62 (7th Cir.
2005).
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Unlike in the cases above, where the state court suffi‐
ciently considered a totality of the circumstances, as cases
like Fare and Carter require (Fare, 442 U.S. at 725; Carter, 690
F.3d at 843), we see no similar evidence that the state court
did so in Dassey’s case. For example, despite the Supreme
Court’s emphasis on the importance of access to an adult al‐
ly in Gallegos, the Wisconsin state court in this case never
discussed the fact that Dassey was alone, other than to note
that “Dassey’s mother, Barbara Janda, agreed to the second
interview but declined the offer to accompany Dassey.” State
v. Dassey, 2013 WL 335923 at *1.9
Moreover, in this case, in comparison to Fare and Harda‐
way (Fare, 442 U.S. at 725; Hardaway, 302 F.3d at 767), the
state appellate court did not view interrogation techniques
as a totality factor overlaid with Dassey’s age and intellect. It
merely looked at the investigators’ comments in isolation
and opined, as it would with an adult of ordinary intelli‐
gence, that “[a]s long as investigators’ statements merely en‐
courage honesty and do not promise leniency, telling a de‐
fendant that cooperating would be to his or her benefit is not
coercive conduct.” State v. Dassey, 2013 WL 335923 at *2.
And unlike in Etherly where the state court made a single
error—unreasonably concluding that the absence of a youth
officer was inconsequential (Etherly, 619 F.3d at 662–63)—the
state court’s error here was not a solitary one, but rather a
failure of the very essence of Supreme Court precedent re‐
9 As described in the facts, Janda claimed she was cajoled out of sitting in
the interview. R. 19‐30 at 155. She remained instead, in the waiting room
of the police station.
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quiring a court to consider the totality of the circumstances
and to consider juvenile confessions with special caution.
Where a determination of voluntariness is so outside the
realm of reasonableness, a federal court may grant the writ,
as it did in A.M. v. Butler, 360 F.3d 787, 801 (7th Cir. 2004).
The court in A.M. recognized that “[e]ven in the context of
federal habeas, deference does not imply abandonment or
abdication of judicial review. Deference does not by defini‐
tion preclude relief.” Id. (citing Miller–El v. Cockrell, 537 U.S.
at 340). And it concluded that the confession of an inexperi‐
enced 10‐year‐old who had no adult advocate was simply
not reliable where the detective continually challenged the
boy’s statements and accused him of lying—a legitimate in‐
terrogation technique in adults, but one likely to lead a
young boy to confess to anything. A.M., 360 F.3d at 800–01.
And in fact, that is just what occurred in this case—
detectives continually challenged Dassey’s statements and
accused him of lying until, as we will describe, his confes‐
sion became a litany of inconsistencies—shirts that changed
color, fires that began and ended at different times, garbage
bags that sat in burning fires without melting, trucks that
were seen in garages and then not seen in garages, bloody
crime scenes without a trace of blood remaining, metal
handcuffs that left no marks on the bed posts, etc. But again
we emphasize that because of the requirements of the totali‐
ty of the circumstances, these cases provide only the broad‐
est of guidelines on determining voluntariness, see Mincey,
437 U.S. at 401, and our full analysis of the voluntariness of
the confession, toward the end of this opinion, will demon‐
strate why no reasonable court could have come to the con‐
clusion that Dassey’s confession was voluntary. As will be‐
come clear through the entirety of this opinion, we can point
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to no solitary statement, factor, or interrogation question that
rendered Dassey’s confession involuntary (although there
were certainly some individual leading questions that came
close), but rather it was death by a thousand cuts. Because of
the cumulative effect of these coercive techniques—the lead‐
ing, the fact‐feeding, the false promises, the manipulation of
Dassey’s desire to please, the physical, fatherly assurances as
Wiegert touched Dassey’s knee etc.—no reasonable court
could have any confidence that this was a voluntary confes‐
sion.
6. No single factor is determinative.
a. Courts must pay close attention to voluntariness
when the defendant has no adult ally present.
As we have now concluded, the totality test prohibits any
one factor from being determinative of voluntariness. Mur‐
dock, 846 F.3d at 209. Some courts, including this one, never‐
theless have found particularly distressing the idea of mi‐
nors waiving rights and confessing without an adult ally
present. Those courts therefore have toyed with the idea of a
per se rule that children under a certain age cannot waive
rights or make a voluntary confession without a parent,
guardian, or legal representative present. See e.g., Hardaway,
302 F.3d at 764. Our conclusion in Hardaway, however, was
that there is no support in clearly established federal law for
such a per se rule where Supreme Court precedent has been
clear that courts instead must base their assessment on the
“totality of the circumstances.” Id. (citing Fare, 422 U.S. at
726). “Youth,” we concluded, “remains a critical factor for
our consideration, and the younger the child the more care‐
fully we will scrutinize police questioning tactics to deter‐
mine if excessive coercion or intimidation or simple immatu‐
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rity that would not affect an adult has tainted the juvenile’s
confession.” Hardaway, 302 F.3d at 765. See also, J.D.B. v.
North Carolina, 564 U.S. 261, 269, 280 (2011); In re Gault, 387
U.S. at 45.
The state appellate court applied no extra care to Das‐
sey’s confession based on his lack of an adult advocate.
Youth was not a “critical factor” in its analysis; indeed it was
not a factor at all. It did not consider the interrogation tech‐
niques in light of Dassey’s lack of an adult advocate nor
acknowledge how Dassey’s clear confusion during parts of
the interview could have been aided by an adult ally who
might have noticed Dassey’s confusion and the manipula‐
tion. It did not mention how, immediately after Dassey’s
mother came to his side, he suddenly realized that the inves‐
tigators “got to my head,” and he worried that he would be
caught in a lie—having confessed to a crime he did not
commit. He asks his mother, “What’d happen if he says
something his story’s different. Wh‐he says he, he admits to
doing it? … Like if his story’s different, like I never did
nothin’ or somethin.’” R. 19‐25 at 148.
b. Courts must pay close attention to voluntariness
when manipulative interrogation techniques are
used, particularly on the young and intellectually
challenged.
Psychologically manipulative interrogation techniques,
likewise, are not per se coercive, but among the circumstanc‐
es that a court must evaluate in total to determine whether a
particular defendant’s free will has been overcome. To be
clear, many manipulative interrogation techniques, in and of
themselves, are not unconstitutional. “Trickery, deceit, even
impersonation do not render a confession inadmissible.”
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United States v. Villalpando, 588 F.3d 1124, 1128 (7th Cir. 2009)
(citing U.S. v. Kontny, 238 F.3d 815, 817 (7th Cir. 2001)). The
law permits the police to “pressure and cajole, conceal mate‐
rial facts, and actively mislead—all up to limits.” United
States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990). That
limit is exceeded, however, when the government gives the
suspect information that destroys his ability to make a ra‐
tional choice “for example by promising him that if he con‐
fesses he will be set free.” Aleman v. Vill. of Hanover Park, 662
F.3d 897, 906 (7th Cir. 2011). And, as we describe further be‐
low, those limits depend on the characteristics of the de‐
fendant. False promises that a suspect will be treated lenient‐
ly by the courts, we have noted, have “the unique potential
to make a decision to speak irrational and the resulting con‐
fession unreliable … because of the way it realigns a sus‐
pect’s incentives during interrogation.” Villalpando, 588 F.3d
at 1128; United States v. Montgomery, 555 F.3d 623, 629 (7th
Cir. 2009) (“a false promise of leniency may be sufficient to
overcome a person’s ability to make a rational decision
about the courses open to him.”). See also United States v.
Nichols, 847 F.3d 851, 857 (7th Cir. 2017) (“a government
agent’s false promise of leniency may render a statement in‐
voluntary.”); Montgomery, 555 F.3d at 629 (“[g]iven the right
circumstances, a false promise of leniency may be sufficient
to overcome a person’s ability to make a rational decision
about the courses open to him.”); Hadley v. Williams, 368 F.3d
747, 749 (7th Cir. 2004) (police may not extract a confession
in exchange for a false promise to set the defendant free).
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We attach no nefarious purposes to the investigators who
were using established interrogation techniques.10 And, in
any event, the investigator’s purpose or subjective view of
the coercive nature of the interrogation is not relevant. It is
how those interrogation techniques interact with the de‐
fendant’s characteristics that determines the voluntariness of
a confession. A seasoned criminal who has volleyed with in‐
terrogators many times before may not be swayed at all by
an explicit but false claim of leniency, but a young, unso‐
phisticated juvenile might believe, with just the slightest hint
of an offer of leniency, that if he confesses to murder “God
and the police would forgive him and he could go home in
time for his brother’s birthday party.” A.M., 360 F.3d at 794.
The Constitution requires that a confession be voluntarily
given. The dissent criticizes the panel opinion for relying on
the subjective perception of a defendant in determining the
voluntariness of his confession, but this is, in fact, what the
totality of the circumstances test requires. A thirty‐year‐old
with a law degree would not believe a police officer’s assur‐
ance that if he confesses to murder he will go punishment
free, but yet the ten‐year‐old, A.M. did just that. Id. A con‐
sideration of the totality of the circumstances requires the
10 Apparently these techniques are not still de rigueur, as Dassey’s inter‐
rogation is now used as a “what not to do” in at least one certified inter‐
rogation course. See Brief of Amici Curiae, Juvenile Law Center, Wick‐
lander‐Zulawski & Associates, Inc. and Professor Brandon Garrett, In
Support of Appellee and Affirmance, at p. 5–6 (citing https://www.w‐
z.com/2016/08/19/netflixs‐making‐a‐murderer‐involuntary‐confession‐
an‐interrogators‐perspective/#comment‐1266). Of course our considera‐
tion of the constitutionality of the interrogation does not hinge on
whether companies teaching these courses believe the technique to be
effective or proper.
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court to consider “whether the techniques for extracting the
statements, as applied to this suspect, are compatible with a
system that presumes innocence and assures that a convic‐
tion will not be secured by inquisitorial means as on whether
the defendant’s will was in fact overborne.” Miller v. Fenton,
474 U.S. at 116 (emphasis added). We need not accept a de‐
fendant’s after‐the‐fact proclamation of a lack of voluntari‐
ness, but the totality of the circumstances framework allows
a court to consider the evidence about the defendant’s ability
to comprehend and contemporaneous evidence of what he
actually did or did not understand. If the Constitution re‐
quires that a confession be voluntary, then it can only be so if
the particular defendant sitting in the interrogation was not,
in fact, coerced.
In other words, the totality of the circumstances test dic‐
tates that coercive interrogation on the one hand, and sus‐
pect suggestibility, on the other, are on inverse sliding
scales—the more vulnerable or suggestible a suspect, the less
coercion it will take to overcome her free will. This is not a
statement of a new test, but rather the logical conclusion of
the totality of the circumstances review itself. Therefore, to
determine whether a promise is coercive as a legal matter, a
court cannot consider the promise alone, but rather the
promise in conjunction with the characteristics of the sus‐
pect. Again, the Supreme Court’s seminal case advises,
“[t]hat which would leave a man cold and unimpressed can
overawe and overwhelm a lad in his early teens.” Haley, 332
U.S. at 599. And the Supreme Court precedent requires low‐
er courts to consider interrogation techniques as applied to
the particular defendant at hand. Miller v. Fenton, 474 U.S. at
116.
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The dissent accuses us of redefining what counts as a
false promise of leniency, noting statements by the police
that passed muster with courts in other cases. The point of
the totality test, however, is not to evaluate any promise of
leniency in isolation, but rather in light of the specific charac‐
teristics of the defendant, that is, “as applied to this suspect.”
Id. (emphasis added). The career criminal will not interpret a
promise in the same manner as an inexperienced and intel‐
lectually disabled teen. The state court, however, did not
view the coerciveness of the interrogation techniques in light
of Dassey’s personal characteristics as the totality test re‐
quires.
The dissent states that the majority decision will make
police investigations “considerably more difficult,” and asks
“what should police do the next time an investigation leads
to a teenager with some intellectual challenge?” (post at 107).
To the extent that the result makes police investigations
more difficult, it is not because of any change we have made
to the law, but rather because the Supreme Court requires a
totality of the circumstances framework that gives special
caution to confessions of juveniles, the intellectually disabled
and other defendants with vulnerable characteristics.
The benefits of the Supreme Court’s requirements ex‐
pand beyond protecting the constitutional rights of defend‐
ants. It is of no help to the advancement of justice and to re‐
moving dangerous killers from the streets, if police coerce
confessions from innocent suspects. Teresa Halbach and her
family are not served if the wrong defendant spends his life
in prison. Teresa’s family deserves to know that the police
have found and incapacitated the right perpetrator—that no
other family will be forced to grieve as they have because a
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brutal killer remains at large. The answer to the dissent’s in‐
quiry about what police officers are to do in such a situation
as Dassey’s, therefore, comes from a long line of require‐
ments that courts have established for protecting the rights
of defendants during police interrogations. Specifically, in
such a case, the police should, as the Supreme Court re‐
quires, ensure that such a suspect “has the capacity to un‐
derstand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those
rights.” Fare, 442 U.S. at 725; see also Murdock, 846 F.3d at 209;
Hardaway, 302 F.3d at 762. And a court reviewing a challenge
to a confession must assess the totality of the circumstances
to assure itself that the defendant voluntarily confessed. This
the appellate court did not do.
7. The state court in this case did not apply a totali‐
ty of the circumstances test.
The state court of appeals in this case affirmed the trial
court’s determination that Dassey’s confession was not in‐
voluntary. Dassey v. Dittmann, 2013 WL 335923 at *2. As the
last state court to speak to the issue, it is that court’s decision
that we review. Makiel, 782 F.3d at 896. As set forth in the
fact section above, after noting the requirement to consider
the voluntariness of the confession using the totality of the
circumstances test, the state appellate court addressed the
voluntariness of the confession in two short paragraphs. The
first paragraph (¶ 6) consisted of a list of Dassey’s character‐
istics and some general characteristics of the interrogation
including: Dassey’s limited intelligence, the comfortable in‐
terrogation room, the Miranda warnings, his affect during
the interview, the investigators’ normal speaking tones, the
lack of “hectoring, threats or promises of leniency,” the pleas
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for honesty, and the investigators’ attempts to build rapport.
State v. Dassey, 2013 WL 335923 at *2. In the second para‐
graph (¶ 7), the court of appeals concluded that the trial
court’s finding of no coercion was not clearly erroneous. “As
long as investigators statements merely encourage honesty
and do not promise leniency,” the court reasoned, “telling a
defendant that cooperating would be to his or her benefit is
not coercive conduct. Nor is professing to know facts they
actually did not have.” Id.
Although the statements in this second paragraph are ac‐
curate as applied to an adult of ordinary intelligence, they
do not acknowledge the court’s obligation to consider juve‐
nile confessions with caution and they do nothing to evalu‐
ate the totality of the circumstances. An evaluation requires
that the court view the interrogation tactics in light of the de‐
fendant’s situation and characteristics. A court has not ap‐
plied the totality of the circumstances test simply by stating
its name and by noting that, in the ordinary course of deal‐
ings, a police officer may use deceptive techniques. Apply‐
ing a rule of law does not require much, but it requires more
than just parroting the words of the rule.
In addition to failing to consider the factors in light of the
totality of the circumstances, the state appellate court failed
to consider some key factors at all, even individually. The
dissent correctly notes that a state court need not give all of
its reasoning for its outcome. And the totality of the circum‐
stances does indeed give state courts a somewhat wide berth
for their considerations. It is true that “[t]he more general the
rule, the more leeway courts have in reaching outcomes in
case‐by‐case determinations.” Yarborough v. Alvarado, 541
U.S. 652, 664 (2004). But the generality of the rule does not
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mean that a state court may forsake it completely, and it
does not eradicate the general notion that “The standard [for
habeas corpus relief is demanding but not insatiable ... def‐
erence does not by definition preclude relief.” Miller–El v.
Dretke, 545 U.S. at 240.
If the totality of the circumstances standard means any‐
thing, it means that a state court must, at a bare minimum,
do what the rule requires and consider the totality of the cir‐
cumstances. A state court need not say much, but the less it
says, the less a federal court can ascertain that the state actu‐
ally applied a totality of the circumstances evaluation.
And at the very least a court assessing the voluntariness
of a juvenile’s confession must evaluate whether deceptive
interrogation techniques overcame the free will of this par‐
ticular defendant. Missing entirely from the state appellate
court’s analysis is any recognition that deception that is
permissible when interrogating the average adult person of
ordinary intelligence, might not be permissible with some‐
one of Dassey’s age and intellect. For example, the state ap‐
pellate court never considered whether the statement “the
truth will set you free” would be considered idiomatically or
literally by someone of Dassey’s age and limitations. Indeed
if taken literally, that statement is the exact kind of promise
of leniency that courts generally find coercive. Hadley, 368
F.3d at 749 (police cannot extract a confession in exchange
for a false promise to set the defendant free); Rutledge, 900
F.2d at 1129 (same).
Nor was there any analysis of the key fact that Dassey
had no adult ally with him during the interrogation. Alt‐
hough not dispositive, it is one of the most critical factors in
evaluating voluntariness of juvenile confessions. Gallegos,
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370 U.S. at 55; Hardaway, 302 F.3d at 765 (noting that absence
of a friendly adult is not dispositive of involuntariness, but a
key factor that can tip the balance against admission). A
friendly adult can ensure that a minor defendant can make
critical decisions, for example, like the decision to waive Mi‐
randa rights. See Hardaway, 302 F.3d at 764. She could ensure
that police do not take advantage of a minor’s youth or men‐
tal shortcomings. U.S. v. Bruce, 550 F.3d 668, 673 (2008). A
friendly adult can level the playing field, help the child un‐
derstand what the consequences of his confession might be,
and help him understand his constitutional rights. Gilbert,
488 F.3d at 791–92.
Had Dassey’s mother been present in the room with him,
she might have noticed if Dassey were guessing as to an‐
swers, alerted him to the consequences of incriminating
himself, reminded her son that the investigators were not
acting as his friends or advocates, and helped him distin‐
guish between the actual truth and the information that the
investigators were feeding him.
Obviously, we cannot know if she would have done any
of these things, but we have one hint that she might have: At
the end of the confession, after she was allowed to see Das‐
sey and after he said “they got to my head,” she immediate‐
ly asked the investigators, “Were you pressuring him?”
R. 19‐25 at 148. As we described above, Dassey became an‐
chored and immediately realized, “They got to my head,” as
soon as his mother entered the room. R. 19‐25 at 148. But
whether she would have helped Dassey or not, it confirms
that Dassey had no protection against manipulation by the
officers. The absence of Dassey’s mother or another friendly
adult should have been a critical piece of the totality consid‐
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eration by the state court and it was not even mentioned in
the state court’s analysis of the voluntariness of Dassey’s
confession.
Finally, the state appellate court did not consider Das‐
sey’s suggestibility while assessing the coercive nature of the
claim, despite the fact that one entire day of trial testimony
consisted of experts assessing Dassey’s mental capacity and,
in particular, his suggestibility. Given the instances we dis‐
cuss below of investigators steering him to particular an‐
swers, this was a critical oversight.
The directive from the Supreme Court to consider the to‐
tality of the circumstances ensures that this particular de‐
fendant voluntarily confessed. It is no use to note that telling
a defendant that cooperating would be to his benefit is not
per se coercive, if the words used to convey that notion
sound like a promise of leniency to this particular defendant.
Likewise, falsely claiming to have knowledge is not per se
coercive, unless it is used in a manner that overcomes the
free will of this particular defendant. The state court did not,
in any respect or manner, consider the interaction of the in‐
terrogation techniques with Dassey’s youth, intellectual limi‐
tations, suggestibility, lack of experience with the police, lack
of a friendly adult, and naiveté.
In sum, there was no “totality” in this “totality of the cir‐
cumstances” test at all. There was no assessment of the cu‐
mulative nature of the interrogators’ promises, no assess‐
ment of the fact‐feeding in light of Dassey’s limited intellec‐
tual abilities, no assessment of the absence of a friendly adult
who could protect Dassey and advocate for his interests, no
assessment of Dassey’s confusion in response to many ques‐
tions, or his apparent desire to please the interrogators with
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his answers, no assessment of how his answers changed and
why, and no assessment of his repeated statements that he
expected that, in return for his statements, he would be “set
free” to return to school at the conclusion of the interroga‐
tion. It is not that the state court did not do enough; we can
have no confidence that it considered the totality of the cir‐
cumstances at all.
Although different courts and judges might disagree as
to “how much weight to assign each factor on facts similar to
those in [any Petitioner’s] case” (Etherly, 619 F.3d at 662), a
reasonable jurist must, in fact, consider the relevant facts
surrounding a confession, and consider their combined and
cumulative effect. Id. A consideration of the totality of the
circumstances requires the court to consider “whether the
techniques for extracting the statements, as applied to this
suspect, are compatible with a system that presumes inno‐
cence and assures that a conviction will not be secured by
inquisitorial means as on whether the defendant’s will was
in fact overborne.” Miller v. Fenton, 474 U.S. at 116 (emphasis
added).
C. The voluntariness of Dassey’s confession analyzed
in light of the totality of the circumstances.
In addition to failing to apply a totality of the circum‐
stances analysis to the facts of this case, as required by the
Supreme Court, the state court acted unreasonably when it
determined that—given the totality of the circumstances—
Dassey’s confession was voluntary. The state appellate
court’s finding that there were no promises of leniency or
other factors that overcame Dassey’s free will was against
the clear weight of the evidence. 28 U.S.C. § 2254 (d)(2); Ward
v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003).
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Thus § 2254 (d)(2) requires a federal court on habeas re‐
view to look at those facts to determine whether the state
court proceedings “resulted in a decision that was based on
an unreasonable determination of the facts in light of the ev‐
idence presented in the State court proceeding.” Id. Moreo‐
ver, “[w]here a state court’s decision is unaccompanied by
an explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state
court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98
(2011). And a federal court reviewing a habeas petition un‐
der § 2254(d), “must determine what arguments or theories
supported or, as here, could have supported, the state
court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision
of this Court.” Id. at 102. Such a determination does not turn
habeas review to de novo review, as the dissent suggests. It is,
to the contrary, precisely what the Supreme Court requires.
Id. Because the state appellate court’s opinion failed to give
any explanation other than a listing of Dassey’s characteris‐
tics and the circumstances of the interrogation, in reviewing
the reasonableness of the determination of the facts in light
of the evidence presented, we look to see what theories
could have supported the state court’s conclusion.
1. The message sent to Dassey: “The ‘truth’ is what
we want you to say, and that is what will set you
free.”
Dassey’s interview could be viewed in a psychology class
as a perfect example of operant conditioning. As we will
demonstrate through myriad examples below, the theme set
forth for Dassey was twofold, that “honesty is the only thing
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that will set you free,” R. 19‐25 at 17, and that honesty would
appease the investigators, avoid conflict, and allow them to
be Dassey’s “friend,” to “go to bat for [him]” to “be in his
corner.” Id. at 16, 25. In other words, the key to walking out a
free person, avoiding the conflict that his socially avoidant
personality feared, and getting back in time for school lunch
was “honesty.” But Dassey quickly learned that “honesty”
meant telling the investigators what it was that they wanted
to hear. When they did not like his answer, they told him
things like “Come on Brendan. Be honest. I told you that’s
the only thing that’s gonna help ya here;” and “[w]e don’t
get honesty here, I’m your friend right now, but I gotta be‐
lieve in you and if I don’t believe in you, I can’t go to bat for
you.” Id. at 23. Every time the investigators said “tell us the
truth” or “we know what the truth is,” Dassey altered his
story just a bit. As Dassey got closer and closer to the an‐
swers the investigators were looking for, his statements were
rewarded with affirmations like “that makes sense. Now we
believe you,” and in doing so, they cemented that version of
the facts. See, e.g., Id. at 73. But when Dassey deviated from
the expected narrative, the investigators either offered no
reward, ignored the comments, steered him away, or let him
know that they thought he was not telling the truth. In short,
as the examples clearly demonstrate, “be honest,” “tell the
truth,” and similar pleas became code for “guess again, that
is not what we wanted you to tell us.” And “now we believe
you” and “that makes sense” became code for “that’s what
we want to hear. Stop right there.” Dassey’s reaction to these
cues is not unique. Experts on confessions have noted that
“though courts are reluctant to find that police officers have
overwhelmed a child’s will by repeatedly admonishing the
child to ‘tell the truth,’ many children will eventually hear
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‘tell the truth’ as, ‘tell me what I want to hear.’” Kenneth J.
King, Waiving Childhood Goodbye: How Juvenile Courts Fail to
Protect Children from Unknowing, Unintelligent, and Involun‐
tary Waivers of Miranda Rights, 2006 Wis. L. Rev. 431, 472
(2006). Scholarly research such as this helps inform our un‐
derstanding that the totality of the circumstances analysis
means something different when applied to juveniles. It
supports the reasoning behind the Supreme Court’s admoni‐
tion to view juvenile confessions with special caution. See
J.D.B., 564 U.S. at 269.
The investigators’ “honesty is the only thing that will set
you free” theme established a pattern whereby Dassey, seek‐
ing the promised result—freedom, or avoidance of conflict—
searched for the narrative that the investigators would ac‐
cept as “the truth.” Dassey found “the truth” either by
stumbling upon it or by using the information the investiga‐
tors had fed him. The promise of freedom became linked to
the idea of truth which became defined as that which the in‐
vestigators wanted to hear. Once this prompt‐and‐response
pattern is noticed, it is impossible to read or view Dassey’s
interrogation and have any confidence that Dassey’s confes‐
sion was the product of his own free will rather than his will
being overborne. Any reader who doubts that this pattern
casts insurmountable doubt on the voluntariness of Dassey’s
confession need only watch or read the interrogation with
this “key” in hand.
The following exchange is a prime example of the inves‐
tigators telling Dassey that he needs to change his story and
how he should do it, followed by that exact change. Prior to
the interaction below, Dassey confirmed approximately
eight times, often insistently, that when he got home from
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school on October 31, he saw Halbach and Avery talking on
Avery’s porch. R. 19‐25 at 19–20, 27–28, 90. In fact, the offic‐
ers grilled him asking “And you’re sure you saw that?” Id. at
20; “did you really see those two talking on the porch” Id. at
27; “You’re 100% on that?” Id. at 28. And each time he an‐
swered affirmatively. Yet, once they repeatedly cued him
that they did not like his answer and that he must “tell the
truth”—in other words, tell them what they wanted to
hear—he altered his message exactly as he was instructed:
Fassbender: OK, and you said you walked
down th [sic] the road to your house, (Brendan
nods “yes”) and you said that you saw Steven
on the porch.
Brendan:
(nods “yes”) uh huh
Fassbender: Mark and I are havin’ a problem
with that. Now if, I’m not, I’m not sayin’ that
I’m gonna put words in your mouth so we’re
havin’ a problem with that. … the time periods
aren’t adding up. They’re not equaling out. We
know when Teresa got there. (Brendan nods
“yes”) Um, and, and I know I guarantee ya Te‐
resa’s not standing on that porch when you
come home from school. I ju [sic] I don’t see
that. … Somethin’ is not adding up here and
you need to tell us the truth. Did this all start
right when you came home from school? You
need to tell me, you need to be honest with
me. I can’t tell ya, I I can’t tell ya these things. I
can tell ya we don’t believe you because
there’s some things that are wrong but you’ve
gotta tell me the truth. This is you know get‐
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ting’ serious here now, OK? (Brendan nods
“yes”) Tell me what happened when you got
home.
Brendan:
I got off the bus. I walked down
the road and when I got to that thing, ah, the
other house I just sittin’ there for nothin’ [sic]. I
could see her jeep in the garage just sittin’ there
and I didn’t see Steven and her on the the
porch.
Wiegert:
You, you did or you didn’t?
Brendan:
I didn’t.
Fassbender: Did not, OK.
R. 19‐25 at 90–91 (emphasis added).11
11 Another
prime example of the investigators telling Dassey exactly
what he must say comes from the May 13 interview, which was not used
at trial, but is part of the record.
Wiegert: Now where is her truck when you go into
the garage.
Brendan:
I didn’t see it.
Wiegert: … you can’t say you didn’t see the truck or
know where the truck was because … [t]hat’s just the
way it is.
Following this exchange, the investigators launched into a long ha‐
rangue threatening to leave the interview if Brendan was not “honest
with us,” and beseeching Dassey to “do the right thing” for Teresa.
Wiegert:
Ok. Then tell us the truth.
Fassbender: Let’s start with the truck. That’s a good
place to start. There’s other places we’re going, but the
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The state presents these changes as a normal part of a
confession. That is, that a defendant tells one version of
events, backtracks as he is presented with inconsistencies
and errors in his story, and reveals more and more as the in‐
terrogators coax the truth out of him. See, e.g., Reply Brief of
Respondent‐Appellant at 1 (“As with many difficult admis‐
sions, the truth did not come out all at once, but little‐by‐
little in fits of honesty.”) But again, a careful review of the
confession does not reveal this to be a story gaining clarity
over time. Unlike the ordinary course of a confession in
which the narrative increases in clarity as the suspect reveals
more information, this interrogation was just the opposite.
Every time the interrogators protested the veracity of Das‐
sey’s account or fed Dassey information, his story changed.
If one sits in front of the taped confession with a legal pad
and tries to sketch out the details and timeline of the crime,
the resulting map is a jumble of scratch outs and arrows that
grows more convoluted the more Dassey speaks. In fact, de‐
spite what the State describes as a detailed confession, it has
never been able to map out a coherent timeline of the crime,
or to figure out in what order or where many of the events
occurred. See Brief of Respondent‐Appellant at 9, n.3 (stat‐
ing, in a footnote to the facts, “the narrative recounts details
from Dassey’s confession in the most likely timeline, con‐
sistent with other evidence at trial. It is possible that some
truck is a good place to start. Tell us the truth about the
truck.
Brendan:
R. 19‐34 at 21–22.
It was backed into the garage.
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parts of the story are out of order,” and describing several
items that are unclear).
Lest one think the details and timeline ever solidified,
they did not. It only became more convoluted when Dassey
appeared, without counsel, at the May 13 interrogation, after
his lawyer’s own investigator, O’Kelly, had interrogated
him. As we noted, that interrogation was not used at trial
and the details are not discussed by the district court or by
the parties. It was used, however, as part of the post‐
conviction hearing, and is part of the record. See R. 19‐34. At
the post‐conviction hearing Wisconsin District Attorney Ken
Kratz described that May 13 interrogation as a “fiasco” in
which Dassey gave “inconsistent statements.” R. 19‐26 at 97.
Details both significant and insignificant changed, not only
from the prior confession on March 1, but also within
minutes of being disclosed at the May 13 interrogation. Das‐
sey changed details about things as benign as riding his bike
to things as important as whether or not he cut Halbach’s
throat. R. 19‐34 at 7, 25. Dassey was inconsistent about how
Halbach was restrained, about whether he saw Halbach’s
vehicle, the order of events, facts about her body, where var‐
ious events occurred, where the murder weapon came from,
what it looked like, and what it was used for, where Halbach
was stabbed, and, as we will see in a later example, whether
he cut Halbach’s hair or not. Dassey is not merely a poor sto‐
ry teller who forgets details and orders, but rather the details
and the order changes in ways that do not amount to confu‐
sion and error but rather a “fiasco” of a story—until, as we
will see, the investigators steer him to the version of the sto‐
ry that fits their theory of the case.
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For example, in the March 1 interrogation, on several oc‐
casions the investigators tried to pin down the constantly
changing order of events. The events are gruesome, serious,
and distinct, and the order is critical to how they were per‐
formed. For example, it is far different to choke a victim
whose throat has been cut than to cut the throat of a victim
who has been choked. Nevertheless, Dassey cannot keep
these details straight. Initially Dassey said that Halbach was
stabbed, tied up, and then choked R. 19‐25 at 54–55. Mo‐
ments later he stated that she was tied up, then stabbed, then
choked Id. at 56, and a few transcript pages later he assures
the investigators that he is “sure” that she was stabbed,
choked, and then tied up Id. at 59; but a few pages after that
he stated that she was stabbed, tied up and her throat was
cut Id. at 64. Finally, he circles back to a re‐telling in which
he says that Halbach was tied up, stabbed and then cut Id. at
101. At one point the investigators are desperate to get the
order right:
Fassbender: Brendan, we’re in the bedroom
yet, OK? (Brendan nods ‘‘yes”) She’s hand‐
cuffed yet right? (Brendan nods “yes”) And
you’re tellin’ me if, obviously correct me if I’m
wrong, what we heard. (Brendan nods “yes”).
While she’s handcuffed and alive, he stabs her.
Brendan:
(nods “yes”) mm huh.
Fassbender: Chokes her? Right? (Brendan
nods ‘‘yes”) Is that right?
Brendan:
(nods ‘‘Yes”) mm huh.
Fassbender: And then he has you cut her
neck?
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Brendan:
Yeah.
Id. at 66. But just when the investigators thought that they
had the order down, at the end of the interview they asked
one more time to lock it in and the order falls apart again:
Wiegert:
Well let’s, let’s just go back a little
bit OK? Tell us what exactly happened to her,
what order it happened in. You said there were
basically three things prior to you guys shoot‐
ing her. Explain those in, in the order that it
happened.
Brendan:
room?
Starting with when we got in the
Fassbender: OK.
Wiegert:
Yeah, what you guys did to her.
Brendan:
We had sex with her
Wiegert:
OK.
Brendan:
Then he stabbed her.
Wiegert:
Then who stabbed her?
Brendan:
He did.
Wiegert:
Who’s he?
Brendan:
Steven.
Wiegert:
OK, and then what?
Brendan:
Then I cut her throat.
Wiegert:
OK.
Brendan:
And then he choked her and I cut
off her hair.
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Wiegert:
OK. So he choked her after you
cut her throat?
Brendan:
(nods “yes”) mm huh.
Id. at 132–33. This is not a confession that becomes increas‐
ingly more coherent and clear over time, as the defendant
reveals more and more of the truth. To the contrary, alt‐
hough Dassey’s culpability throughout these changes re‐
mains the same, the horrific story becomes less and less co‐
herent until by the end Avery is choking a woman who has
already had her throat cut. Yet through all of this tying,
stabbing and throat cutting, Dassey insists he did not get any
blood on himself:
Wiegert:
You said that you had cut her
throat. (Brendan nods “yes”) Here’s the thing
Brendan, when you, cut somebody’s throat,
they bleed a lot, (Brendan nods “yes”) OK? Am
I right?
Brendan:
(nods “yes”) Yeah.
Wiegert:
She bleed a lot, (Brendan nods
“yes”) so I know you had blood on ya, it’s pret‐
ty much impossible not to. Did you have blood
on you?
Brendan:
(shakes head “no”) No.
Wiegert:
None at all?
Brendan:
(shakes head “no”ʹ) uh uh.
Wiegert:
her?
What about when you moved
Brendan:
(shakes head “no”) No.
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Id. at 116‐17.
In short, a reasonable state court that had carefully re‐
viewed the confession would have quickly determined that
the interrogators pleas for honesty—irrespective of how they
intended them—did not have the effect of eliciting honesty
from Dassey, but rather had the effect of eliciting guesses
from Dassey about what the investigators wanted to hear. In
Dassey’s mind, the words “be honest” and the like came to
mean “guess again until you say what we want to hear.”
Consequently, the interrogation became not one of eliciting
honesty through a voluntary confession, but one of leading
Dassey into the story the interrogators wanted to hear. No‐
where is this more clear than in the following two examples
below.
The first example comes from the key part of the interro‐
gation. As we noted earlier, by the time of the March 1 inter‐
view, the investigators knew that Halbach had been shot in
the head. They also knew that the battery had been removed
from her Toyota RAV4. These two details had not yet been
released publicly and thus Dassey’s knowledge of these de‐
tails would be particularly inculpatory. It is a common in‐
vestigative technique to hold back details of a crime from the
media and public to test the validity of a confession. The fol‐
lowing exchange demonstrates many of the totality factors
and interrogation techniques we will describe below—
Dassey’s naiveté, false information (“we already know”),
minimizing Dassey’s role in the crime (“he made you do it”),
and admonitions to “tell the truth.” But in particular it
demonstrates how the interrogators’ admonitions to “tell the
truth” cue Dassey to keep guessing, and most importantly,
how the interrogators tainted the voluntariness of the inter‐
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view by feeding Dassey the information that Halbach was
shot in the head.
Wiegert:
What else did he do to her? We
know something else was done. Tell us, and
what else did you do? Come on. (pause) Some‐
thing with the head, (pause) Brendan?
Brendan:
Huh?
Fassbender: … can’t
Wiegert:
on.
What else did you guys do, come
Fassbender: What he made you do Brendan?
We know he made you do somethin’ else
Wiegert:
it?
What was it? (pause) What was
Fassbender: We have the evidence Brendan,
we just need you ta, ta be honest with us.
Brendan:
That he cut off her hair.12
***
Fassbender: What else was done to her head.
(pause)
Brendan:
That he punched her.
Wiegert:
(pause)
What else? (pause) What else?
12 We note that Dassey’s intonation rises at the end of this statement, as
though he is asking a question. R. 19‐44, Ex. 43, Disc 1 at 11:57:41.
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Fassbender: He made you do something to
her, didn’t he? So he would feel better about
not being the only person, right? Yea.
Wiegert:
mm huh.
Fassbender: What did he make you do?
Wiegert:
What did he make you do Bren‐
dan? (pause) It’s OK, what did he make you
do? (pause)
Dassey:
Cut her.
Wiegert:
Cut her where?
Brendan:
On her throat.
***
Wiegert:
So Steve stabs her first and then
you cut her neck (Brendan nods “yes”). What
else happens to her in the head?
Fassbender: It’s extremely extremely im‐
portant you tell us this, for us to believe you.
Wiegert:
(pause)
Come on Brendan, what else?
Brendan:
That is all I can remember.
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:
R. 19‐25, at 60–63.
Cuz I couldn’t think of it.
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67
This example demonstrates how critical the steering was
to Dassey’s confession. Recall that the gunshot wounds to
the head were unknown to anyone but the investigators and
the real killer and thus were key to determining the veracity
of the confession. Dassey “couldn’t think of it” and instead
launched into a litany of other dubious guesses about ac‐
tions that might have befallen Teresa. Shooting a living hu‐
man in the head (or seeing it happen) is not something that a
person is likely to forget. Indeed, Dassey later described how
he could no longer shoot a gun or go hunting because he had
been traumatized by the shooting of his pet cat: “I couldn’t
shoot no more … cuz we used to have a cat that was like
somethin’ was wrong with ‘em and we had to shoot ‘em be‐
cause we didn’t want to pay for the bills … and my mom
told me not to watch when hers nows ex‐boyfriend shot it,
shot ‘em and I couldn’t watch.” Id. at 65‐66. But yet despite
the impact of the cat incident, Dassey “could not think of it”
when asked what was done to Halbach’s head. Cleary his
inability to describe the shooting was not an effort to protect
himself, as he had just admitted to slitting Halbach’s throat.
After guessing many of the most common things that a per‐
son might do to a victim’s head—cutting hair, punching, cut‐
ting the throat—he simply “could not think of” anything else
that was “done to her head” until Wiegert says, “I’m just
gonna come out and ask you. Who shot her in the head?” Id.
at 63. Suddenly he “could[] think of it.” Id. And of course he
had to “think of it” because Fassbender had just told Dassey
that it was “extremely important for you to tell us this, for us
to believe you.” In other words, finding the right answer
was the key to freedom and pleasing the interrogators be‐
cause “the truth”—meaning what the investigators wanted
Dassey to say—would avoid conflict and “set him free.”
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No. 16‐3397
This example also reveals the power that the false as‐
sumption technique (described more below) had on Dassey.
The ”who shot her in the head?” question is the proverbial
“when did you stop beating your wife?” assumption. And
Dassey is quick to respond despite having no idea what
happened to Halbach’s head just a few seconds earlier.
Likewise, in the following exchange, a confused Dassey falls
right into the trap again.13
Fassbender: The first time we talked to you or
the second time you talked about cutting off
her hair. Where did the hair go? Did you cut
off her hair?
Brendan:
Yeah.
Fassbender: Where did that happen
Brendan:
In the, in the, bedroom.
Fassbender: What ya cut the hair off with?
Brendan:
The knife.
Fassbender: The knife you found in the gar‐
age?
Wiegert:
It doesn’t make sense.
13 This exchange comes from the May 13 interview which, as we noted
earlier, was not used at trial. It was admitted at the state post‐conviction
proceedings and is part of the record. R. 19‐34. We highlight it only as an
example of Dassey’s confused responses to leading questions. As a side
note, this conversation also serves as a glimpse into the interrogators’
clear efforts to have Dassey move all of the events of the crime to the
garage, as no forensic evidence was found in Avery’s trailer.
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Fassbender: It’s impossible. You took her out
to the garage and that’s where you got the
knife. Explain how that can be. (pause) Did
you cut her hair off?
Brendan:
No.
Fassbender: Then why did you tell us you
did? Brendan?
Brendan:
I don’t know.
***
Fassbender: Do you remember telling us pri‐
or? The last time that you saw that stuff in the
burn barrel?
Brendan:
Yeah.
Wiegert:
So why did you do that?
Brendan:
I had too much stuff on my mind.
Wiegert:
So now you remember a little
more clearly? OK. How much of her hair did
you cut off?
Brendan:
A little bit.
Wiegert:
You told me a couple of minutes
ago you didn’t cut any off. What’s the truth?
Did you cut some of her hair off?
Brendan:
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No.
***
Fassbender: … did anyone cut her hair off
that night?
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Brendan:
No. (shakes head no)
Fassbender: Where did you get that from?
(pause) I mean it seems kind of strange that
you just all of a sudden told us you had cut her
hair off. Where did you get that from, if it’s not
true?
Brendan:
I don’t know, I was just guessing.
Fassbender: Why, Did you think that was
somethin’ we wanted to hear?
Fassbender: Brendan, didn’t did someone
some one [sic] cut her hair off that night?
Truthfully, for Teresa?
Brendan:
No. (shakes head “no”)
R. 19‐34 at 36–37, 65–66, 98 (emphasis added). In fact inves‐
tigators never found any evidence of Halbach’s hair on
Avery’s bed, his carpet, anywhere in his trailer or the garage.
Investigators also hoped that Dassey would reveal an‐
other detail unknown to the public—the fact that the car bat‐
tery had been detached:
Wiegert:
After he put the car there, what
do you do next?
Brendan:
We walk out.
Wiegert:
With, how’s, the license plates
were taken off the car, who did that?
Brendan:
I don’t know.
Wiegert:
Did you do that?
Brendan:
(Shakes head “no”) No.
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Wiegert:
Did Steve do that?
Brendan:
Yeah.
Wiegert:
Well then why’d you say you
don’t know?
***
Fassbender: Ok, what else did he do, he did
somethin’ else, you need to tell us what he did,
after that car is parked there. It’s extremely
important. (pause). Before you guys leave that
car. (pause)
Brendan:
That he left the gun in the car.
Fassbender: That’s not what I’m thinkin’
about. He did something to that car. He took
the plates and he, I believe he did something
else to that car. (long pause)
Brendan:
I don’t know.
Fassbender: OK. Did he, did he go and look at
the engine, did he raise the hood at all or any‐
thing like that? To do something to that car?
Brendan:
(long pause) Yeah.
Fassbender: What was that? (pause)
Wiegert:
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What did he do Brendan? (Pause)
Fassbender: What did he do under the hood,
if that’s what he did? (long pause)
Brendan:
I don’t know what he did, but I
know he went under.
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R. 19‐25 at 77–79. No reasonable court could read these ex‐
changes and conclude that these ideas came voluntarily from
Dassey’s mind.
Although these were the two most egregious, they were
not the only examples of the investigators feeding Brendan
answers. In the following exchange, Dassey insisted for
some time that he had no idea what happened to Halbach’s
personal effects. After some leading from Fassbender, in
which Fassbender initiated the idea that there must have
been a purse, a cellphone and a camera in the burn barrel,
Dassey was able to parrot that he saw these exact three items
in the burn barrel. Even the investigators seem concerned
about the veracity of his statements, asking him several
times to verify the truth, particularly in light of his claim that
he saw the items beneath a garbage bag, an item that would
have melted within seconds in a fire. Once again, at this
point Dassey has no motivation to lie or obfuscate facts
about whether Avery burned Halbach’s property in the burn
barrel, as he has already admitted several times that he and
Avery killed Halbach and burned her body. Nevertheless he
altered his answers in response to the cues from the investi‐
gators. They told him exactly which items were found in the
burn barrel and then cued him to “tell the truth” which, we
have established, had the effect on Dassey of meaning “tell
us what we want to hear and keep guessing until you get it
right.”
Fassbender: OK. We talked last er Monday we
talked a little about some things a burn barrel
out front do you remember anything about
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that burn barrel? It’s ah you might wanna be a
little more truthful about now.14
Brendan:
That it was full of stuff.
Fassbender: Was it burning?
Brendan:
Yeah.
Fassbender: Did you put some things in that
burn barrel that night?
Brendan:
(shakes head “no”) No.
Fassbender: What happened to Teresa’s other
personal effects? I mean ah a woman usually
has a purse right? (Brendan nods “yes”) Tell us
what happened ta that?
Brendan:
it.
I don’t know what happened to
Fassbender: What happened ta her ah, her cell
phone? (short pause) Don’t try‐ta ta think of
somethin’ just.
Brendan:
I don’t know.
Fassbender: Did Steven did you see whether
ah a cell phone of hers?
Brendan:
(shakes head “no”) No.
14 In the earlier interview, on February 27, after asking about Avery
burning clothes, Fassbender asked, “Did he tell ya anything about a, a,
any of her other possessions like I imagine a woman would have a purse,
she probably had her cell phone, a camera to take pictures. Did he tell
you what he did with those things?” R. 19‐24 at 36). The transcript indi‐
cates no answer, but Fassbender follows up with “are you sure?” indicat‐
ing that Brendan likely shook his head “no.” Id.
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Fassbender: Do you know whether she had a
camera?
Brendan:
(shakes head “no”) No.
Fassbender: Did Steven tell ya what he did
with those things?
Brendan:
(shakes head “no”) No.
Fassbender: I need ya to tell us the truth.
Brendan:
(nods “yes’”) Yeah.
Fassbender: What did he do with her her pos‐
sessions?∙
Brendan:
I don’t know.
Wiegert:
Brendan, it’s OK to tell us OK.
It’s really important that you continue being
honest with us. OK, don’t start lying now. If
you know what happened to a cell phone or a
camera or her purse, you need to tell us. OK?
(Brendan nods “yes”) The hard parts over. Do
you know what happened ta those items?
Brendan:
He burnt ‘em.
Wiegert:
How do you know?
Brendan:
Because when I passed it there
was like like a purse in there and stuff.
Wiegert:
When you passed what?
Brendan:
The burning barrel
Wiegert:
Did ya look inside? (Brendan
nods “yes”) Why did ya look inside?
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Brendan:
Cuz it was full.
Wiegert:
What else was in there?
Brendan:
Like garbage bags, some
Wiegert:
Did you put those things in the
burning barrel?
Brendan:
(shakes head “no”) No.
Wiegert:
Did you actually see those items
in the burning barrel? (Wiegert emphasizes the
word “see.”)
Brendan:
(nods “yes”) Yeah.
Wiegert:
exactly.
Tell me what you saw in there
Brendan:
Like they were buried under‐
neath ah, garbage, a garbage bag that was
Wiegert:
How do you know, or how could
you see them if they were underneath a gar‐
bage bag?
Brendan:
Because the garbage bag was like
on top like that far off the top.
Wiegert:
OK. So we have the barrel,
(Brendan nods “yes”) OK. Why don’t you look
at me for a second, OK. We’ve got the barrel:
Brendan:
(nods “yes”) mm huh.
Wiegert:
OK and here’s is the top of the
barrel (Brendan nods “yes”) and the garbage
bag is on top?
Brendan:
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(nods “yes”) Yeah.
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Wiegert:
And where are those items you
said you saw?
Brendan:
Like right underneath there.
Wiegert:
Underneath the bag?
Brendan:
(nods “yes”)Yeah.
Wiegert:
Well, how would you see that?
Brendan:
Well, if the bags like that far off
the you know the top of the thing you can see
though underneath it.
Wiegert:
You could see underneath it?
(Brendan nods “yes”) What did you see?
Brendan:
like a cell phone, camera, purse
Wiegert:
Are you being honest with us?
Brendan:
(nods “yes”)Yeah.
Wiegert:
Did you actually see those items?
Brendan:
(nods “yes”) Yeah.
Wiegert:
When did you see them?
Brendan:
mail.
When I came over there with the
R. 19‐25 at 95–98 (emphasis added).
Although the government concedes that “Who shot her
in the head” was a leading question, it characterizes the rest
of the interrogation as a litany of open‐ended questions that
were corroborated by other evidence. The many examples
we have just cited belie that claim. As in the example above,
after first denying that he knew what happened to Halbach’s
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personal effects, and after the investigators cued him, Das‐
sey ultimately said that he saw no more nor less than pre‐
cisely the three items they mention to him in their questions.
But these are merely a few of many instances in which inves‐
tigators explicitly told Dassey what facts he was to report:
“We know the fire was going [when you arrived]” Id. at 23; I
think you went over to his house and then he asked [you] to
get his mail.” Id. at 41; “You went inside, didn’t you?” Id. at
41; “Does he ask you [to rape Halbach]? He does, doesn’t he?
We know. He asks you, doesn’t he?” Id. at 47; “You went
back in that room…we know you were back there.” Id. at 48;
“He asked if you want some, right? … If you want some
pussy?” Id.; “You were there when she died and we know
that.” Id. at 54; “He did something else, we know that.” Id. at
54; “We know that some things happened in that garage,
and in that car, we know that” Id. at 71.
The investigators even told Dassey what kinds of lan‐
guage he should use. When Dassey told the investigators
that Avery had raped Halbach, Fassbender asked him,
“What did he say? Did he use those words?” Dassey nodded
affirmatively but Wiegert knew that did not sound accurate
and cued him why it did not: “Are you sure cuz its usu, not
usually the words he uses?” But Dassey nodded and said
“yeah.” R. 19‐25 at 36. But the next time they ask about the
sexual assault, Dassey has figured out what they wanted to
hear and they reward him by telling him that now they can
start believing him:
Brendan:
That he wanted to get some.
Fassbender: Some what?
Brendan:
Pussy.
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Wiegert:
That’s what he said to you?
(Brendan nods “yes”) OK.
Fassbender: Now I can start believing you,
OK? (Brendan nods “yes”).
Id. at 46.
Now that we have set forth the pattern of questioning
(the truth is what the investigators wanted Dassey to say
and that truth was linked to pleasing the interrogators and
his freedom), we turn to the remaining parts of the confes‐
sion which likewise influence our decision that no reasona‐
ble court, having viewed the interrogation as a whole, could
have found that Dassey’s confession was voluntary.
2. Dassey’s characteristics and limitations.
Sixteen‐year‐old Dassey walked into the interrogation
room without a parent, a lawyer, or an advocate to look out
for his rights. He had never had any contacts with law en‐
forcement prior to his interviews in this case. As described in
the fact section, he was passive, docile and withdrawn. He
also suffered from intellectual deficits. His IQ was in the low
average or borderline range. He was a “slow learner” with
“really, really bad grades,” R. 19‐12 at 66), who received spe‐
cial education services and was the subject of at least three
Individualized Education Programs, documents developed
for children with special learning needs. Specifically, he had
difficulty understanding some aspects of language and ex‐
pressing himself verbally. He also had difficulties in the “so‐
cial aspects of communication” such as “understanding and
using non‐verbal cues, facial expressions, eye contact, body
language, tone of voice.” R. 19‐12 at 91. Testing also revealed
that he had extremely poor social abilities, that he was so‐
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cially avoidant, introverted and alienated, and that he was
likely to be more suggestible than 95% of the population.
3. Assurances and promises.
a. Paternalistic assurances
Sitting across from the young, socially and intellectually
challenged Dassey were two seasoned police interrogators.
Dassey had no adult advocate, but the investigators sought
to fill that role and convince him that they were the adults
who were on his side. During the first recorded interview,
on February 27, Fassbender set the tone, saying,
I’ve got ... kids somewhat your age, I’m lookin’
at you and I see you in him and I see him in
you, I really do, and I know how that would
hurt me too. ... Mark and I, yeah we’re cops,
we’re investigators and stuff like that, but I’m
not right now. I’m a father that has a kid your
age too. I wanna be here for you. There’s noth‐
ing I’d like more than to come over and give
you a hug cuz I know you’re hurtin’.
R. 19‐24 at 5.
The paternal assurances and relationship building con‐
tinued into the March 1 interview: “I wanna assure you that
Mark and I both are in your corner, we’re on your side ...”
R. 19‐25 at 16, and “... I’m your friend right now, but I ... got‐
ta believe in you and if I don’t believe in you, I can’t go to
bat for you.” Id. at 23.15 Wiegert repeatedly touched Dassey’s
15 The State portrays these statements as having been made during a
time when the investigators still considered Dassey to be a witness rather
than a suspect, but prior to this March 1 interview, the investigators
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knee in a compassionate and encouraging manner during
the March 1 interview. See, e.g., R. 19‐44, Ex. 43, Disc 1 at
11:20:28 a.m., 11:29:04 a.m., 11:37:32 a.m., 11:41:09 a.m. In
one instance, Wiegert put his hand on Dassey’s knee, leaned
forward, and said reassuringly and encouragingly, “We al‐
ready know Brendan. We already know. Come on. Be honest
with us. Be honest with us. We already know, it’s, OK? We
gonna help you through this, alright?” Id. at 11:29:04 a.m.;
R. 19‐25 at 37. He later did this again while saying, “Bren‐
dan, I already know. You know we know. OK. Come on
buddy. Let’s get this out, OK?” Id. at 11:37:32 a.m.; R. 19‐25
at 44. And within a few minutes of this knee touch and ap‐
peal to his “buddy,” Dassey confessed to raping Halbach. Id.
at 50–51.
The government makes much of the fact that Wiegert
stated at the beginning of the interview, “[w]e can’t make
any promises,” but that one early admonition was countered
by hours and hours of subtle and not so subtle declarations
otherwise—the death by a thousand cuts. Moreover,
Wiegert’s full statement was: “We can’t make any promises,
but we’ll stand by you no matter what you did.” R. 19‐25 at
17. What would a reasonable person make of an admonition
not to count on any promises, followed immediately by a
clear, unconditional promise? More importantly, what
thought “it was possible that Brendan might have been involved in the
disposal of the corpse.” R. 19‐30 at 38. And, as we set forth later, the in‐
vestigators continued their assurances that Dassey would be “alright”
throughout the interview, all of which had been prefaced and contextu‐
alized by the early assertions.
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would Brendan Dassey, with his limited intelligence and so‐
cial skills, think of this admonition linked with a promise?
b. False promises of leniency.
After painting the “we’re on your side” backdrop, the in‐
vestigators brought in the main scaffolding of their ap‐
proach—the false promises that Dassey would be better off
confessing than remaining silent. Some of these promises
were problematic in and of themselves—for example, a
promise that if Dassey told the truth, he would be set free.
The other promises eroded voluntariness because they were
linked to a requirement to “tell the truth,” which, as we have
established meant “the version of the story that the investi‐
gators wanted to hear.” By linking what the investigators
wanted to hear with assurances that those versions would
make Dassey “alright” and “okay,” the confession became
not one borne of Dassey’s free will but of the investigators’
wills.
The investigators began the interrogation with a mono‐
logue, the theme of which was that Dassey could improve
his lot by telling the truth, and culminating in the statement,
“Honesty is the only thing that will set you free.” R. 19‐25 at
17. As the district court noted, this a biblical idiom that
many adults would recognize as a figurative expression.
Dassey v. Dittmann, 201 F.3d. at 1002. Dassey, however, was
not someone who understood idioms and subtle distinctions
between literal and figurative language. His school special
education reports (prepared long before the crime or trial,
for use at school) noted in particular that idioms were an as‐
pect of language that Dassey had trouble understanding. R.
19‐20 at 79. This is a juvenile who, after all, when told that
his polygraph showed a 98% probability of deception asked,
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“I passed?” R. 19‐38 at 1. And when the tester repeated “It
says deception indicated,” emphasizing the word deception,
Dassey asked, “That I failed it?” Id. And when drawing pic‐
tures of the crime scenes for the detectives, he needed help
spelling words like “rack” and “garage.” R. 19‐25 at 124, 128.
Likewise he was unlikely to understand that the other
veiled, subtle promises of leniency were not actual promises.
And as we know, a law enforcement officer may not promise
a defendant that if he confesses he will be set free. Hadley,
368 F.3d at 749; Rutledge, 900 F.2d at 1129. See also Aleman,
662 F.3d at 906.
The investigators sounded the theme of “truth leads to
freedom” again and again in that opening monologue:
• “It’s going to be a lot easier on you down
the road, ah, if this goes to trial.”
• “[H]onesty 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.
You’re the one that’s saying, ‘you know
what? Maybe I made some mistakes, but
here’s what I did.”
• “[T]he honest person is the one who is go‐
ing to get a better deal out of everything.”
• “If, in fact, you did something, which we
believe … it’s OK, as long as you be honest
with us, it’s OK. If you lie about it, that’s
gonna be problems.”
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R. 19‐24 at 17. And of course, there was the most direct
promise, “honesty is the only thing that will set you free,”
(R. 19‐25 at 17).
Promises come in many forms. It is true that the investi‐
gators never made the type of explicit and specific promise
of leniency that an adult of ordinary intelligence might un‐
derstand as a promise, such as “if you confess we will make
certain that you will not be punished.” But to a suggestible
suspect with poor social skills, low IQ, and a limited ability
to understand idioms and metaphors, those implied promis‐
es, made over and over, had the same effect—an effect that
could have been mitigated by the presence of a friendly
adult.
Likewise, it was not just the promises to be “set free” that
constituted a promise of leniency, but promises that Dassey,
who was exceptionally introverted and socially avoidant,
could escape the unpleasant conflict and social interaction,
by providing what the interrogators wanted to hear. “Hon‐
esty” would allow them to be on his side and allow him to
“get it all out … and … over with” and get out of that inter‐
rogation room. See R. 19‐25 at 48. Although the furniture in
the room may have been soft, the non‐stop interrogation by
two adults of authority would be very intimidating and anx‐
iety producing to anyone but particularly for someone in the
95th percentile on the scale for social avoidance.
c. Coupling assurances and promises with false asser‐
tions of knowledge.
One form of a promise comes from coupling an acknowl‐
edgement of the facts with an assurance—in other words,
stating “we already know everything you did and, even
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knowing all of that, everything is going to be okay.” The in‐
vestigators peppered the entire investigation with assuranc‐
es that Dassey “was going to be alright,” coupled with
acknowledgements that they were making these assurances
notwithstanding all of the horrible facts that they already
knew. Those pleas promised that the key to unlocking the
“you’re going to be alright” result was honesty.
The assurances that Dassey would be “alright” came in
many forms: “from what I’m seeing ... I’m thinking you’re
all right. OK, you don’t have to worry about things.” R. 19‐
25 at 16; “[N]o matter what you did, we can work through
that.” Id. at 17; “It’s OK. As long as you can, as long as you
be honest with us, it’s OK. If you lie about it that’s gonna be
problems. OK.” Id.; “We already know. Just tell us. It’s OK.”
Id. at 24; “It’s OK because he was telling you to do it.” Id. at
28; “We already know, it’s, OK? We’re gonna help you
through this, alright?” Id. at 37; “It’s OK Brendan. We al‐
ready know.” Id. at 41; “It’s OK, tell us what happened.” Id.
at 46; “It’s not your fault.” Id. at 47; “Let’s get it all out today
and this will be all over with.” Id. at 48; “It’s OK, what’d you
do with it?” Id. at 76; “Brendan, it’s OK to tell us OK.” Id. at
96.
Again, the power came, not from the assurances alone,
but the assurances coupled with the false information that
the investigators “already knew everything.” The investiga‐
tors were not merely telling Dassey, “Based upon what you
have told us so far, we don’t think you have anything to wor‐
ry about.” Rather, what they told Dassey was, “We already
know what happened and you don’t have anything to worry
about.”
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Those assurances that they already knew everything,
linked with the plea for “honesty” were plentiful: “We pret‐
ty much know everything[.] [T]hat’s why we’re talking to
you again today.” R. 19‐25 at 17. “[N]ow remember this is
very important cuz we already know what happened that
day.” Id. at 19; see also Id. at 23 (“We already know what
happened[.]”); ”We already know. Just tell us. It’s OK.” Id. at
24; “Come on we know this already. Be honest.” Id. at 26;
“Remember we already know, but we need to hear it from
you.” Id. at 28; “So just be honest. We already know.” Id. at
30; “We already know, be honest.” Id. at 36; “We already
know Brendan. We already know. Come on. Be honest with
us. Be honest with us. We already know, it’s, OK? We’re
gonna help you through this, alright?” Id. at 37; “It’s OK
Brendan. We already know.” Id. at 41; “Cuz, we, we know
but we need it in your words. I can’t, I can’t say it.” Id. at 44;
“Brendan, I already know. You know we know. OK. Come
on buddy. Let’s get this out, OK?” Id. at 44; “Remember, we
already know, but we need to hear it from you, it’s OK. It’s
not your fault.” Id. at 47; “We know you were back there.
Let’s get it all out today and this will be all over with.” Id. at
48; “We know what happened, it’s OK.” Id. at 50. (For a
more complete list of these assurances, see Dassey v.
Dittmann, 201 F. Supp. 3d at 1002.)
In one instance, when asking Dassey if he helped Avery
put Halbach in the back of her RAV4, Wiegert explicitly as‐
sured Dassey, “If you helped him, it’s OK, because he was
telling you to do it. You didn’t do it on your own.” R 19‐25 at
28. But of course, it would not be “okay” for Dassey to help
mutilate and dispose of a corpse simply because Avery told
him to do it. And likewise, it could not be any further from
“okay” for Dassey to rape Halbach because Avery told him
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to do it. Yet as they were walking Dassey down the path,
step‐by‐step, to admitting that he had raped Halbach, they
stated,
Wiegert:
What happens next? Remember,
we already know, but we need to hear it from
you, it’s OK. It’s not your fault. What happens
next?
Fassbender: Does he ask you?
Wiegert:
He does; doesn’t he?
Fassbender: We know.
R. 19‐25 at 47 (emphasis added). And then, as he struggled
to tell them the details of the alleged rape, they again assure
him, “it’s not your fault, he makes you do it.” Id. at 50. The
investigators assured Dassey that once he revealed the de‐
tails of the alleged rape, “this will be all over with.” Id. at 48.
Similarly, just before Dassey stated that he cut Halbach’s
throat, Wiegert prompted Dassey by telling him, “What did
he make you do Brendan? It’s OK, what did he make you
do?” Id. at 62. Recall, of course, that because Halbach’s body
was burned (adding even more atrocity to the crime) there
was no forensic evidence that she had been raped or that her
throat had been cut.
We can have no confidence that any person, but particu‐
larly one with Dassey’s IQ and suggestibility, would think
that “you’re going to be alright” and “[l]et’s get it all out to‐
day and this will be all over with” might lead to a life sen‐
tence in prison. A life sentence is neither “alright” nor some‐
thing that would put the matter to rest and be “over with.”
And in fact, we need not speculate as to how Dassey would
interpret those promises, because we know exactly what
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Dassey made of them—that if he told the tale, as the interro‐
gators had introduced it to him, he would be released. After
confessing to the heinous crimes of raping Teresa Halbach,
slitting her throat, and then burning her body, Dassey asked
if he would make it to school by 1:29 p.m. so that he could
turn in a project he had due in his sixth hour class. R. 19‐25
at 89. And later he asked “Am I gonna be at school before
school ends?” Id. at 143. When Fassbender asked him at the
end of the interrogation if he knows what is going to happen
next, Dassey says “I don’t know.” Id. at 144. When they tell
him he will be arrested, he responds, “Is it only for one
day?” Id. These lamentably naïve questions suggest that
Dassey counted on these assurances that he would be
“okay” to mean that he had a free pass to say whatever he
wanted (or, more accurately, whatever he thought the inves‐
tigators wanted to hear) and would not go to jail. Certainly
no adult had warned him otherwise.
Once again we recognize that false promises, like other
interrogation techniques, do not, per se, make a confession
involuntary. Villalpando, 588 F.3d at 1128. Promises, howev‐
er, cannot be viewed in a vacuum, but rather assessed as
they interact with a defendant’s unique characteristics. A
mature adult of ordinary intelligence might always appreci‐
ate that regardless of any assurances he has been given that
his incriminating statements might put him in prison. But
the state appellate court viewed the words of the interroga‐
tors alone without reference to Dassey and without looking
at their cumulative effect and concluded that those words by
themselves did not promise leniency, but rather merely en‐
couraged honesty. This is an unreasonable finding of fact
and an unreasonable application of the federal law’s “totali‐
ty of the circumstances” requirement to those facts.
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If, in fact, the state court had looked at those promises,
not as they stood alone, but cumulatively and in light of the
fact that they were linked to the interrogators’ requirements
that Dassey tell them what it was they wanted to hear, it
could not have come to any other conclusion but that Das‐
sey’s free will was overcome. And where a defendant’s will
is overborne by the circumstances of the interrogation, due
process precludes admission of a confession. Schneckloth, 412
U.S. at 225‐26.
d. The combined effect of the promises.
The false promises—that he will be “alright,” that “it is
not his fault” that “the truth will set him free” clearly affect‐
ed the voluntariness of Dassey’s confession. Villalpando, 588
F.3d at 1128 (“a false promise [of leniency] has the unique
potential to make a decision to speak irrational and the re‐
sulting confession unreliable.”) The message Dassey heard
loudly and clearly was that “the truth” was the key to his
freedom, and “the truth” meant those things that the inter‐
rogators wanted him to say. Although the point has already
been made, we include a few more examples to emphasize
how readily apparent the involuntariness of Dassey’s con‐
fession ought to have been to any reasonable court review‐
ing the confession in its totality. Once again, these examples
establish a clear pattern of the investigators subtly (or not so
subtly) feeding options to Dassey and then admonishing
him to “be honest” when his answers do not fit their theory
of the case. When Dassey hits upon the correct facts howev‐
er, interrogators lock in the story by telling him “now we be‐
lieve you.” In the first example, Wiegert knew there were
bullet casings found in the garage, but no bullet holes or
shell casings found in Halbach’s vehicle, so he worked to
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bring Dassey’s answers in line with this evidence. Dassey’s
culpability does not depend on where Halbach was shot. His
only stake is in determining what the investigators want
“the truth” to be, because the “the truth” is the key to pleas‐
ing the interrogators, getting out of the interrogation room,
and “setting him free.”
Fassbender: Tell us where she was shot?
Brendan:
In the head.
Fassbender: No, I mean where, in the garage?
Brendan:
Oh.
Fassbender: Outside, in the house?
Brendan:
In the garage.
Fassbender: OK.
Wiegert:
Was she on the garage floor or
was she in the truck?
Brendan:
In the truck.
Wiegert:
Ah huh, come on, where was she
shot? Be honest here.
Fassbender: The truth.
Brendan:
In the garage.
Wiegert:
after?
Before she was put in the truck or
Brendan:
After.
Fassbender: So she’s in the truck and that’s
when he shoots her? (Brendan nods “yes”)
***
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Fassbender: And she was in the back of the
truck or SUV the whole time that he shot her?
Brendan:
She was on the garage floor.
Wiegert:
She was on the garage floor. OK.
Fassbender: Alright.
Wiegert:
lieve you.
That makes sense. Now we be‐
R. 19‐25 at 72–73.
Similarly, Dassey had no real reason to fabricate what
Halbach was wearing, as it neither increased nor decreased
his culpability. He did, however, have an incentive to give
the investigators the details they were looking for so that he
could return to school and home. The investigators, on the
other hand, had a description of what Halbach was last seen
wearing—blue jeans, a white shirt, and a spring jacket, R. 19‐
18 at 6, and therefore had a weighty incentive to align Das‐
sey’s descriptions with their known facts. As in the previous
example, this exchange contains fact‐feeding and pleas for
“honesty,” but it also includes a safety valve. When Dassey
began making a mess of things, the investigators encouraged
him to backtrack and say that he could not remember.
Fassbender: Do you remember what she was
wearing? I know it’s a long time ago, don’t
guess, if you remember, you can say it.
Brendan:
member.
(shakes head “no”) I don’t re‐
Id. at 20. Yet later when he receives the cue to “be honest,”
and a set of options (t‐shirt or button‐up) he does seem to
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recall her clothes. When he gives a conflicting answer, and
contradicts himself, he is told just to “say I don’t remember.”
Fassbender: Did she have clothes on? Now be
honest. If she did, she did, and if she didn’t,
she didn’t.
Brendan:
Sort of.
Fassbender: OK. What did she have on.
Brendan:
pants.
Like a white T‐shirt and that,
Wiegert:
What do you mean sort of? Either
she had clothes on or she didn’t. It’s, was some
of it on some of it off? What?
Brendan:
It was ripped.
Wiegert:
It was ripped (Brendan nods
“yes”) Where was it ripped?
Brendan:
chest)
Like right here. (pointing to
Wiegert:
Was it a T‐shirt or button up shirt
or what kind of shirt.
Brendan:
A button up one.
Wiegert:
What color?
Brendan:
Like a black one.
Wiegert:
OK, before you said there was a
white T‐shirt. She had that on too?
Brendan:
Yeah. (nods “yes”)
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Wiegert:
OK, and in the other interview
you said it was blue. Do you remember what
color it was? If you don’t remember, say you
don’t remember.
Brendan:
I don’t remember.
Id. at 31–32.
There is no reason to think that Dassey’s pattern of
guessing at “the truth” until he got it right was any different
when the stakes mattered and his culpability was on the line.
This is particularly true because the investigators had al‐
ready assured him that, even knowing what they knew—
that is, with “the truth” that they had—Dassey would be
“okay.” The examples below demonstrate how these prom‐
ises affected the voluntariness of Dassey’s confession of the
most horrific acts of the crime.
Wiegert:
What happens after you were
done watching TV for 15 minutes.
Brendan:
I told him I had to leave cuz I had
ta call Travis.
Wiegert:
Brendan, be honest You were
there when she died and we know that. Don’t
start lying now. We know you were there.
What happened?
Fassbender: He ain’t gonna lie to you, hey we
know that OK.
Wiegert:
We already know, don’t lie to us
now, OK, come on. What happens next?
Fassbender: You’re just hurting yourself if
you lie now.
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Brendan:
Then he went in, back in there
and he stabbed her.
Wiegert:
You were with him? (Brendan
nods “yes’’) Yes?
Brendan:
Yeah.
Id. at 54.
Similarly, below, although Dassey had already denied
that he had touched or sexually assaulted Halbach, he came
to understand that his answer “I didn’t do nothing,’” was
causing conflict, and was not “the truth” that the investiga‐
tors want to hear and that would therefore “set him free.”
Wiegert:
So you, he, he brings you back
there and he shows you her (Brendan nods
“yes”) and what do you do? Honestly. Because
we think
Fassbender: Very important.
Wiegert:
We know happened.
Fassbender: It’s hard to be truthful.
Wiegert:
We know what happened, it’s
OK. (pause) What did you do?
Brendan:
I didn’t do nothin’
Wiegert:
Brendan, Brendan come on. What
did you do?
Fassbender: What does Steven make you do?
Wiegert:
do it.
It’s not your fault, he makes you
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Brendan:
her.
He told me ta do her … Ta screw
Wiegert:
Ok. Did you do that? Honestly?
Brendan:
Yeah.
Id. at 50.
4. Examples of resistance.
The State makes much of the fact that Dassey resisted the
interrogators on many occasions. In fact, the State counts
eight occasions in which Dassey resists the interrogators’
suggested response. These exchanges differ markedly from
the exchanges in which Dassey shifts or changes his an‐
swers. For example, in comparison to the example of the
garage floor and seeing Halbach on the porch, the exchange
between Dassey and the investigators regarding false infor‐
mation about a tattoo differs significantly in form, length
and follow‐up. Most importantly, it does not contain the pat‐
tern of continual pleas for honesty until the answer changes.
In the exchange below, the investigators inserted the false
notion that Halbach had a tattoo—a tactic interrogators are
trained to do to test a suspect’s honesty and suggestibility.
Fassbender: Probably when she was alive, did
she have any scars, marks, tattoos, stuff like
that, that you can remember?
Brendan:
I don’t remember any tattoos
But then just seconds later, the following exchange oc‐
curs:
Fassbender: Ok. (pause) We know that Teresa
had a, a tattoo on her stomach, do you remem‐
ber that?
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(Shakes head “no”) uh uh.
Fassbender: Do you disagree with me when I
say that?
Brendan:
was.
No but I don’t know where it
Fassbender: OK.
Id. at 137–39. Rather than explore the subject further, ask
where the tattoo was and what it looked like, or admonish
Dassey to “be honest” to encourage him to guess again,
Fassbender instead immediately moved on to a new subject.
From the investigator’s perspective, no good could have
come from further exploration after Dassey had demonstrat‐
ed a willingness to go along with the idea that Halbach had
a tattoo; he just doesn’t “know where it was.” Id. Moreover,
Dassey was able to affirm that he did not disagree with the
investigators so he was not forced to change his story to
agree. Based on our prior examples, however, one can imag‐
ine that if Fassbender had continued as he did in other areas,
and the next question he asked was “Be honest, did she have
a tattoo of a butterfly or a tiger?” Dassey would have re‐
sponded with one or the other until he found the correct an‐
swer.
Second, it is true that at first Dassey is firm about the lo‐
cation of the knife that Avery used to stab Halbach, but once
the investigators use the code “tell us the truth” (in other
words, “change your story to tell us what we want to hear”),
he immediately caved to their suggestion. The State cites the
initial response, but not the follow‐up where Dassey suc‐
cumbs. The initial exchange was as follows:
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Wiegert:
Where was the knife that he used,
‘er you used. Where’s that knife go?
Brendan:
He left it in the Jeep.
Wiegert:
He what?
Brendan:
He left it in the Jeep.
Wiegert:
It’s not in the Jeep now, where do
you think it might be?
Brendan:
I sure [sic] it was.
Wiegert:
Did you see it in the Jeep?
Brendan:
Yeah, cuz he set it on the floor.
Wiegert:
Where on the floor did he set it?
Brendan:
In the middle of the seats.
Wiegert:
Okay.
Id. at 80–81.
In that exchange, there was no admonition to tell the
truth or inquiries about whether he was certain, as happened
in the following exchange where he did, indeed change his
answer about the location of the knife:
Wiegert:
Wh‐What about the knife, where
is the knife, be honest with me, where’s the
knife? It’s OK, we need to get that OK? Help us
out, where’s the knife?
Brendan:
Probably in the drawer.
Wiegert:
In which drawer?
Brendan:
His knife drawer;
Wiegert:
And where’s that?
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In the kitchen.
Wiegert:
Is it probably in there, or do you
know it’s in there.
Brendan:
That’s where I think it is.
Wiegert:
Why do you think it’s in there?
Brendan:
Cuz he wouldn’t let that knife go.
Wiegert:
Cuz he wouldn’t let the knife go.
How do you know that?
Brendan:
Cuz it was a pretty nice knife.
Id. at 121 (emphasis added).
Third, the State argues that Dassey resisted changing his
answer regarding when Avery started the fire despite many
questions by investigators. But the conversation about the
fire was the very exchange in which the investigators be‐
came stern with Dassey and set forth the “rules” for the in‐
terview—that is, if Dassey failed to tell them what they
wanted to hear, the investigators would reprimand him until
he guessed the correct answer. Fassbender tells Dassey pre‐
cisely what the only acceptable answer will be:
Fassbender: What about the fire?
Dassey:
Do you mean if it was started or
somethin’? No it wasn’t (shakes his head “no.”)
Fassbender: Ok. We’re not going to go any
further in this cuz we need to get the truth out
now. We know the fire was going. … Let’s
take it through honestly now.
Id. at 23 (emphasis added). The State argues that Dassey con‐
tinued throughout the interrogation to state that the fire was
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going when he got there, but of course he did: Fassbender
had made it clear from the very start that this was the only
answer he would accept.
Dassey does indeed resist suggestions that he kept Hal‐
bach’s hair and does so many times. Id. at 102. The problem
for the State is that the information about cutting Halbach’s
hair came from some of the most suggestive questioning of
the whole interrogation—when Fassbender was desperately
trying to compel Dassey to tell him what the two of them
had done “with [Halbach’s] head.” Id. at 60. In response to
Wiegert’s eight questions in succession about what the two
had done with Halbach’s head, Dassey says, with a rising
intonation usually associated with asking a question, “That
he cut off her hair [?]” Id. (question mark added, see R. 19‐44,
Ex. 43, Disc 1 at 11:57:41 a.m.). It is not surprising that he
would deny keeping Halbach’s hair when the notion that he
cut her hair was simply one of his unsuccessful apparent
guesses at what had been done to Halbach’s head. Given the
origin of the hair comment in the first instance and the re‐
cantation and then further confusion about the hair at the
May 13 interview, it is difficult to make anything of Dassey’s
comments about hair cutting at all.
Dassey also resisted the investigators’ several inquiries
about whether the two of them had used some “wires hang‐
ing from the rafters,” in Avery’s garage to “do stuff” to Hal‐
bach in the garage. R. 19‐25 at 132–33. This is perhaps the
State’s strongest evidence of resistance, as there is no readily
apparent reason, apart from the truth, that Dassey resisted
their questioning about these wires other than, perhaps, that
he was too naïve to think of an unimaginably horrible form
of torture for which those wires could have been used.
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Finally, it is also true that Dassey ardently resisted any
suggestion that he shot Halbach or even touched the gun.
But he had a reason to do so. He told the investigators that
he had been traumatized when his mother’s boyfriend shot
his cat and had decided he “couldn’t shoot no more” after
that episode. Id. at 65–66. Having made a clear pronounce‐
ment to himself and others that he was a person who did not
“shoot no more,” he would have been unlikely to have been
as suggestible about such a fact.
It was not just Dassey’s ability to resist that the State used
to support the voluntariness of Dassey’s confession, but also
the richness of the details he provided and the fact that
physical evidence corroborated many of those details. As we
noted at the outset, many false confessions contain intricate
detail. Garrett, The Substance of False Confessions, 62 Stan. L.
Rev. at 1054. And many of the elaborate details Dassey re‐
ported were available in the media reports. It had been
widely reported in the media that Halbach’s RAV4 was
found in the salvage yard partially concealed by branches
and a car hood; her remains were found in Avery’s burn pit
along with remnants of clothing; Avery burned tires on the
night Halbach was last seen; eleven rifle casings were found
in Avery’s garage; two rifles were recovered from Avery’s
bedroom; a key to Halbach’s RAV4 was found in Avery’s
bedroom; the key had Avery’s DNA on it; Avery’s blood
was found in Halbach’s RAV4; and Halbach’s blood was
found in the cargo area of the RAV4. Dassey v. Dittmann, 201
F. Supp. 3d at 997 (citing newspaper articles).
The State also argues that physical evidence corroborated
many of the details to which Dassey confessed, but, in fact,
the lack of physical evidence was the weakest part of the
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State’s case. There was no DNA or other physical evidence
linking Dassey to this crime in any way—not a strand of his
DNA in the garage, Avery’s bedroom, on the RAV4 or its
key, on any knives, guns, handcuffs or any other relevant
place. Despite descriptions of a gruesome killing with stab‐
bing, throat cutting, hair cutting, rape, and a shooting, inves‐
tigators never found a single drop of Halbach’s blood, hair
or DNA in Avery’s not‐so‐tidy trailer and garage—not on
the sheets, mattress, carpet, walls, clothing, garage floor, me‐
chanic’s creeper, gun, handcuffs, or bed posts. There was no
forensic evidence supporting Dassey’s story that Halbach
had been stabbed, raped, bound or cut. Investigators did
find Halbach’s blood in her vehicle and her DNA on a bullet
fragment in Avery’s garage. R. 19‐16 at 62–66. The district
court pointed out that some of the corroborative evidence
had been challenged at trial as being the product of contam‐
ination and other unreliable methods. R. 19‐27 at 210–32.
And in any event, other purportedly corroborative evidence
was as harmful as it was helpful. For example, investigators
did find handcuffs and leg irons in Avery’s bedroom, but
not a single scratch on the wooden bed posts as one would
expect were Halbach handcuffed to the bed as Dassey de‐
scribed. R. 19‐23 at 88. Other corroborative evidence sup‐
ported both the state and Dassey’s theories of the events. For
example, the bleach‐stained pants supported the state’s ver‐
sion of the story in which Dassey knowingly helped clean
Halbach’s blood from the garage, and also Dassey’s version
of events in which Avery asked an ignorant Dassey to help
clean from the garage floor something that appeared to be
automotive fluid. The district court dismissed many of the
state’s asserted corroborating details as unhelpful, and we
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need not repeat the district court’s explanations. See Dassey
v. Dittmann, 201 F. Supp. 3d at 998.
In sum, the investigators promised Dassey freedom and
alliance if he told the truth and all signs suggest that Dassey
took that promise literally. The pattern of questioning
demonstrates that the message the investigators conveyed is
that the “truth” was what they wanted to hear. When he de‐
viated, they told him he was lying and when he successfully
parroted what they wanted him to say, either because he
successfully guessed or the investigators had fed him the in‐
formation, they patted him on the back for telling the truth
and told him he would be “okay.” Dassey, however, had
trouble maintaining a consistent story except when he was
being led step‐by‐step through the facts, thus confirming
that this confession emerged not from his own free will, but
from the will of the investigators.
We are quite cognizant that our role in this habeas peti‐
tion is limited. We have catalogued these parts of the confes‐
sion not because we might have come to a different conclu‐
sion about Dassey’s guilt or innocence, but because they re‐
flect on the totality of the circumstances that the state appel‐
late court should have been considering when assessing
whether Dassey’s confession was given of his own free will.
By ignoring these false assurances and promises, steering,
coaxing, and fact‐feeding, the state court, although it knew it
must address the totality of the circumstances, failed to ap‐
ply that rule to these facts. See 28 U.S.C. § 2254 (d)(1). The
requirement to view the totality of the circumstances, how‐
ever, applies to adults and minors alike. See, e.g., Missouri v.
Seibert, 542 U.S. 600, 608 (2004). If the admonition to give ex‐
tra care to juveniles’ confessions means anything, it must
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mean that a court must give extra scrutiny to a child’s con‐
fession. For example, it might ask if this youth was suscepti‐
ble to steering. Was he fed information? Was he someone
who needed an adult ally to explain the consequences of his
Miranda waiver or his confession in general? Did he need
someone to remind him not to guess at answers to please the
interrogators? Did he need someone to remind him that the
investigators were police officers with a different agenda
than his? Had the state court given Dassey’s confession any
of this required care, it simply could not have overcome the
many doubts that his confession raises about voluntariness.
We have shown again and again a pattern of steering, coax‐
ing, fact‐feeding and cueing followed by rewarding the “cor‐
rect” answer, and we urge anyone with doubts about the
voluntariness of Dassey’s confession to view the interroga‐
tion with this pattern in mind.
By determining that Dassey, under the totality of the cir‐
cumstances, confessed of his own free will, the court ignored
the clear and convincing weight of the evidence and thus
made an unreasonable determination of the facts. See 28
U.S.C. § 2254(d)(2).
D. Harmless error.
Moreover, because the confession was essentially the on‐
ly evidence the State presented against Dassey at trial, we,
like the district court, must conclude that allowing its admis‐
sion could not have been harmless error. Specifically, the vi‐
olation of Dassey’s constitutional rights “had a substantial
and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (in‐
ternal citations omitted). Indeed, as the district court pointed
out, “Dassey’s confession was, as a practical matter, the en‐
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tirety of the case against him.” Dassey, 201 F. Supp. 3d at
1006. Despite the intensity of the investigation, the brutality
of the crime and the disarray of the premises, no one ever
found a single hair, a drop of blood, a trace of DNA or a
scintilla of physical evidence linking Dassey to this crime.
E. Ineffective assistance of counsel.
Because we affirm the grant of the writ of habeas corpus
on these bases, we need not make a determination about the
effective assistance of counsel. We note, however, that
should the government decide to retry Dassey, the issue of
the admissibility of the May 13 telephone call between Das‐
sey and his mother will require a fresh look to determine
whether it is the fruit, so to speak, of an involuntarily‐
obtained confessional tree.
III.
Teresa Halbach’s family has now grieved for their painful
loss through several trials, multiple state court appeals, state
post‐conviction relief appeals, and now the habeas proceed‐
ings in federal court. If only this court, through its many
words, could re‐write the tragic tale of that final day of Tere‐
sa’s life. But of course, we cannot. Dassey has successfully
demonstrated that the state court decision resulted in a deci‐
sion that was “contrary to, or involved an unreasonable ap‐
plication of, clearly established Federal law, as determined
by the Supreme Court of the United States” and that “result‐
ed in a decision that was based on an unreasonable determi‐
nation of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2). The
decision of the district court is AFFIRMED in all respects.
The writ of habeas corpus is GRANTED unless the State of
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Wisconsin elects to retry Dassey within 90 days of issuance
of this court’s final mandate, or of the Supreme Court’s final
mandate.
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HAMILTON, Circuit Judge, dissenting. Brendan Dassey con‐
fessed on videotape that he raped Teresa Halbach, helped his
uncle murder her, and then burned her body in a fire pit at his
uncle’s junkyard. A jury convicted Dassey of those crimes, and
the Wisconsin state courts have upheld the convictions. On
federal habeas corpus review, however, Dassey has per‐
suaded the district court and now my colleagues that his con‐
fession was involuntary and his convictions invalid. I respect‐
fully dissent. We should reverse.
To decide whether Dassey’s confession was voluntary, the
state courts applied the correct but general and even indeter‐
minate “totality of the circumstances” test. See Withrow v. Wil‐
liams, 507 U.S. 680, 693–94 (1993); Gallegos v. Colorado, 370 U.S.
49, 55 (1962). The Wisconsin Court of Appeals upheld the trial
court’s finding that Dassey’s confession was voluntary in a
succinct per curiam opinion that rejected that claim in two par‐
agraphs. That was permissible. While the majority would
have preferred a more nuanced and detailed discussion of the
circumstances surrounding Dassey’s confession, the Antiter‐
rorism and Effective Death Penalty Act (AEDPA) of 1996 does
not authorize federal courts to sit in judgment of the length of
state court opinions. Rather, as Harrington v. Richter teaches,
even unexplained decisions by state courts are entitled to def‐
erence under AEDPA. See 562 U.S. 86, 98 (2011) (“Where a
state court’s decision is unaccompanied by an explanation, the
habeas petitioner’s burden still must be met by showing there
was no reasonable basis for the state court to deny relief.”).
Under AEDPA and Richter, relief must be denied if a reasona‐
ble court could have reached the state courts’ conclusion. Id.
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Habeas relief from state court convictions is rare, reserved
for those unusual cases where state courts abandon their ob‐
ligation to enforce federal constitutional law. See id. at 102–03
(“If [the AEDPA] standard is difficult to meet, that is because
it was meant to be. … Section 2254(d) reflects the view that
habeas corpus is a ‘guard against extreme malfunctions in the
state criminal justice systems,’ not a substitute for ordinary
error correction through appeal.”) (citation omitted). No Su‐
preme Court precedent compels relief for Dassey. His petition
should be denied.
Rather than show how Supreme Court precedent requires
habeas relief, the majority observes: “By surveying the Su‐
preme Court cases on the voluntariness of juvenile confes‐
sions one can see how much the unique characteristics of both
the defendant and the interrogation play into the assessment
of voluntariness.” Ante at 36. For this reason, the majority
writes, “other cases can only act as broad guideposts.” Id.
That is exactly right, but that is also why we should re‐
verse. Without a compelling showing based on Supreme
Court precedent, habeas relief must be denied. The more a
state court’s decision depends on weighing a host of factors
as part of the totality of the circumstances, the harder it is to
show that the decision was “contrary to, or involved an un‐
reasonable application of, clearly established Federal law.” 28
U.S.C. § 2254(d)(1). Applying such a broad standard to a par‐
ticular case leaves substantial room for judgment. “The more
general the rule, the more leeway courts have in reaching out‐
comes in case‐by‐case determinations.” Yarborough v. Al‐
varado, 541 U.S. 652, 664 (2004) (reversing grant of habeas pe‐
tition where similar fact‐sensitive standard governed whether
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seventeen‐year‐old petitioner had been “in custody” during
interrogation in which he confessed).
Even if we were reviewing the admissibility of Dassey’s
confession de novo, great caution would be warranted. The
majority’s decision breaks new ground and poses troubling
questions for police and prosecutors. It calls into question
standard interrogation techniques that courts have routinely
found permissible, even in cases involving juveniles.
This was a relatively brief and low‐key interview of a Mi‐
randized subject who was not mistreated or threatened,
whose creature comforts were satisfied, and whose parent
consented. If such a gentle interrogation can be treated as un‐
constitutionally coercive, what should police do the next time
an investigation leads to a teenager with some intellectual
challenges? Few wrongdoers are eager to own up to crimes as
serious as Dassey’s. The Constitution is not offended by such
police tactics as encouraging the subject to tell the truth, bluff‐
ing about what the police already know, or confronting the
subject with what the police know from physical evidence
and with the internal contradictions and improbabilities in his
story. Today’s decision will make some police investigations
considerably more difficult, with little gained in terms of jus‐
tice.
I. The Totality of the Circumstances
My colleagues describe the critical March 1, 2006 inter‐
view of Dassey as “intimidating and anxiety producing.”
Ante at 83. I suspect the source of any anxiety Dassey felt was
his guilt, not the circumstances of a relatively gentle and non‐
coercive interview. The majority focuses in painstaking detail
on a few factors that weigh in favor of finding that Dassey’s
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confession was not voluntary. Many other factors weigh in fa‐
vor of finding it was voluntary. The circumstances that have
most concerned courts and that have contributed most to vol‐
untariness jurisprudence—such as physical abuse, threaten‐
ing behavior, or prolonged questioning—were simply absent
here.
Consider these circumstances: the investigators did not in‐
itially consider Dassey a suspect in the murder. Still, they had
good reason to think that he knew more about his uncle Ste‐
ven Avery’s involvement in Teresa Halbach’s death than Das‐
sey had told them thus far. Two days before the critical March
1 interview, Dassey had told investigators that he saw human
body parts—toes, a hand, a forehead, and a stomach—in
Avery’s bonfire the previous Halloween. Dassey had also said
that Avery told him he stabbed Teresa. In a separate conver‐
sation that evening, Dassey had told the investigators that he
helped Avery clean a dark red stain on his garage floor.
On March 1, the investigators obtained consent from Das‐
sey’s mother to interview him once again. They read Miranda
warnings to Dassey, drove him to a local sheriff’s office, and
reminded him about the Miranda warnings once they arrived.
They offered him snacks, beverages, and restroom breaks.
During the interview, Dassey sat comfortably on a sofa. He
exhibited no signs of physical distress. The investigators
spoke in measured tones. They did not threaten Dassey, nor
did they use intimidating or coercive language. They coaxed
and encouraged him to tell the truth. They made Dassey no
specific guarantees. In fact, they told him at the outset: “We
can’t make any promises … .”
The interview lasted about three hours in total. Fifty‐four
minutes into the conversation, Dassey told the officers that he
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raped Teresa Halbach the day she was murdered. Fourteen
minutes later, Dassey admitted, in response to a relatively
open‐ended question, that he cut Teresa’s throat. The investi‐
gators soon took a thirty‐minute break and then continued
questioning Dassey for a little over an hour. At the conclusion
of the interview, the investigators informed Dassey that they
were placing him under arrest.
At times, the investigators challenged Dassey when his ac‐
count seemed incomplete, did not make sense, or conflicted
with physical evidence. At other points, the investigators de‐
liberately misled Dassey by telling him they knew more than
they actually did or by suggesting false facts to see if he would
agree to them. (He did not.) Those are routine techniques in
police interrogation. They do not transform a voluntary con‐
fession into an unconstitutional one. The investigators also re‐
peatedly encouraged Dassey to tell the truth, and they offered
vague assurances that it would be better for him if he did.
Those are also routine techniques. They are not fraudulent or
coercive. At no point did the investigators make the sort of
specific false promises that can render a confession involun‐
tary. The record here does not show police tactics “so offen‐
sive to a civilized system of justice that they must be con‐
demned under the Due Process Clause of the Fourteenth
Amendment.” See ante at 30, quoting Miller v. Fenton, 474 U.S.
104, 109 (1985).
II. AEDPA and Deference to State Court Judgments
A. The Departure from Deference
The Antiterrorism and Effective Death Penalty Act of 1996
amended the federal habeas corpus statute to provide that an
“application for a writ of habeas corpus … shall not be
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granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of
the claim—(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 … or (2)
resulted in a decision that was based on an unreasonable de‐
termination of the facts … .” 28 U.S.C. § 2254(d). It is not
enough that a federal court might have decided the case dif‐
ferently in the first instance. Rather, the federal court must be
confident that the decision of the state court was so beyond
the pale as to constitute an error “well understood and com‐
prehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103 (emphasis added).
My colleagues insist, repeatedly, that they have “kept the
strict constraints of the AEDPA forefront” in their minds. E.g.,
ante at 27. Yet no Supreme Court case, no case decided in this
circuit, and indeed no case cited by the parties or the majority
has found a confession involuntary on facts resembling these,
even where the subject is a juvenile.
Never before has the Supreme Court or this court signaled
that police bluffs about what they know may render a confes‐
sion involuntary. Neither the Supreme Court nor this court
has ever held, as the majority seems to believe, that an inves‐
tigator’s vague assurances about the value of telling the truth
may amount to fraudulent promises of leniency. Nor have we
held that such statements must be viewed from the subjective
perspective of the suspect, no matter how distorted his per‐
spective may be. The majority worries that Dassey may have
taken as literal an investigator’s advice that honesty is the
“only thing that will set you free,” transforming that biblical
phrase into the “exact kind of promise of leniency that courts
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generally find coercive.” Ante at 50; see John 8:32. The major‐
ity reaches this conclusion in spite of our long recognition that
“the law permits the police to pressure and cajole, conceal ma‐
terial facts, and actively mislead.” United States v. Rutledge, 900
F.2d 1127, 1131 (7th Cir. 1990).
In one telling departure from AEDPA deference, the ma‐
jority cites a law review article to observe: “Experts on confes‐
sions have noted that ‘though courts are reluctant to find that
police officers have overwhelmed a child’s will by repeatedly
admonishing the child to “tell the truth,” many children will
eventually hear “tell the truth” as, “tell me what I want to
hear.”’” Ante at 55‐56 (citation omitted). The majority then
suggests that “Dassey found ‘the truth’ either by stumbling
upon it or by using the information the investigators had fed
him,” and asserts boldly that it is “impossible to read or view
Dassey’s interrogation and have any confidence that Dassey’s
confession was the product of his own free will rather than his
will being overborne.” Ante at 56. The majority invites the
reader to scrutinize Dassey’s confession with this “key” in
hand.
I read (and see) the evidence quite differently: Dassey’s
confession appears to have been the product of a guilty con‐
science, coaxed rather gently from him with standard, non‐
coercive investigative techniques. Even assuming, however,
that the majority’s interpretation is plausible, our job as a fed‐
eral court reviewing a state conviction under § 2254(d) is not
to consult scholarly literature in search of new best practices.
Our narrower task is to determine whether the state court
decision was based either on an unreasonable application of
clearly established law as handed down by the Supreme
Court or on an unreasonable view of the facts. Apart from the
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uncontroversial observation that juvenile confessions should
be treated with care, see J.D.B. v. North Carolina, 564 U.S. 261,
269 (2011) (direct appeal of Miranda custody decision), the
majority cites no Supreme Court authority in support of its
interpretive “key.”1
B. Deference or Critiquing Opinions?
Early in its opinion, the majority writes that the “state ap‐
pellate court did not identify the correct test at all and did not
apply it correctly.” Ante at 23. The criticism is misplaced. The
state court correctly recognized that (1) a confession’s volun‐
tariness turns on the “totality of the circumstances” and (2)
the analysis involves a “balancing of the defendant’s personal
characteristics against the police pressures used to induce the
statements.” That standard fits comfortably with the Supreme
1 The majority supports the need for special care in juvenile confession
cases by citing studies of exonerated defendants showing that false con‐
fessions are more common by juveniles and mentally ill or intellectually
deficient suspects. Ante at 32–34. False confessions are a real phenome‐
non, and even one is very troubling. Yet we should not conclude from
these studies of exonerated defendants that there is an epidemic of false
confessions. The more relevant denominator in the fraction is all confes‐
sions. That number is not easy to estimate, but we can estimate a conserva‐
tive lower boundary for it. Bureau of Justice Statistics reports on Felony
Defendants in Large Urban Counties tally violent felony convictions by
guilty plea in just the nation’s 75 largest counties. (The most recent report
is Brian A. Reaves, U.S. Dep’t of Justice, Bureau of Justice Statistics, Felony
Defendants in Large Urban Counties, 2009 – Statistical Tables (2013),
https://www.bjs.gov/content/pub/pdf/fdluc09.pdf.) The majority’s statis‐
tics report 227 demonstrably false confessions from 1989 to 2016. From the
BJS reports, we can estimate there were more than 1.5 million guilty pleas
to violent felonies over that period. So for every one demonstrably false
confession over those years, there were more than 6,500 guilty pleas to
violent felonies in just those 75 largest counties.
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Court’s explanation in Withrow: “courts look to the totality of
circumstances to determine whether a confession was volun‐
tary. Those potential circumstances include … the crucial ele‐
ment of police coercion; the length of the interrogation; its lo‐
cation; its continuity; the defendant’s maturity; education;
physical condition; and mental health. They also include the
failure of police to advise the defendant of his rights to remain
silent and to have counsel present during custodial interroga‐
tion.” 507 U.S. at 693–94 (citations omitted). This fact‐sensitive
balancing test applies whether the subject is a mature adult or
an intellectually challenged high‐school student. See Gilbert v.
Merchant, 488 F.3d 780, 793 (7th Cir. 2007) (“[I]t is the totality
of the circumstances underlying a juvenile confession, rather
than the presence or absence of a single circumstance, that de‐
termines whether or not the confession should be deemed
voluntary.”) (collecting cases).
The majority’s real concern seems to be that the Wisconsin
Court of Appeals only paid lip service to the correct standard
but did not apply it seriously. The majority writes that the
state appellate court “listed Dassey’s age, education and IQ,
but it never … evaluated those factors to determine whether
they affected the voluntariness of Dassey’s confession.” Ante
at 28. Likewise, the majority writes that the state court “ana‐
lyzed some of the investigators’ interrogation techniques, but
it never evaluated or assessed how those techniques affected
the voluntariness of [Dassey’s] confession.” Id. Elsewhere the
majority complains that “the state appellate court addressed
the voluntariness of the confession in two short paragraphs.”
Ante at 48. The majority also writes that the less a state court
says, “the less a federal court can ascertain that the state actu‐
ally applied a totality of the circumstances evaluation.” Ante
at 50. The majority seems to expect longer, more detailed, and
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perhaps more anguished opinions from the state courts in
such cases. Those expectations do not call for habeas relief.
Under § 2254(d), federal courts do not judge the length or
brevity of opinions issued by state courts with dockets far
more crowded than ours. Federal courts have “no authority
to impose mandatory opinion‐writing standards on state
courts. … The caseloads shouldered by many state appellate
courts are very heavy, and the opinions issued by these courts
must be read with that factor in mind.” Johnson v. Williams, 568
U.S. —, —, 133 S. Ct. 1088, 1092, 1095–96 (2013) (footnote omit‐
ted) (reversing habeas relief; federal court erred by finding
that state court overlooked petitioner’s federal claim and by
then reviewing that claim de novo); see also Wright v. Secretary
for Dep’t of Corrections, 278 F.3d 1245, 1255 (11th Cir. 2002)
(“Telling state courts when and how to write opinions to ac‐
company their decisions is no way to promote comity.”).
Where the last state court to review a claim reaches a decision
and offers reasons, its decision is entitled to the same defer‐
ence whether the court states its reasons succinctly in an un‐
published order or expounds at length in a landmark opinion.
AEDPA deference still applies when a state court offers no
reasons, facially defective reasons, or incomplete reasons for
its decision. Where a state court provides no explanation, “the
habeas petitioner’s burden still must be met by showing there
was no reasonable basis for the state court to deny relief.”
Richter, 562 U.S. at 98. “Under § 2254(d), a habeas court must
determine what arguments or theories supported or … could
have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding
in a prior decision of this Court.” Id. at 102 (emphasis added);
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see also Williams, 133 S. Ct. at 1094 (“Although Richter itself
concerned a state‐court order that did not address any of the
defendant’s claims, we see no reason why the Richter pre‐
sumption should not also apply when a state‐court opinion
addresses some but not all of a defendant’s claims.”).
Similarly, even where the last state court to render a deci‐
sion offered a faulty reason for its decision, “although we
would no longer attach significance to the state court’s ex‐
pressed reasons, we would still apply AEDPA deference to the
judgment,” turning to the “remainder of the state record, in‐
cluding explanations offered by lower courts.” Whatley v.
Zatecky, 833 F.3d 762, 775 (7th Cir. 2016) (citation omitted);
Brady v. Pfister, 711 F.3d 818, 827 (7th Cir. 2013) (“A state court
could write that it rejected a defendant’s claim because Tarot
cards dictated that result, but its decision might nonetheless
be a sound one.”).
And by the reasoning of Richter and Williams, deference
likewise applies where a state court “gave some reasons for
an outcome without necessarily displaying all of its reason‐
ing.” Hanson v. Beth, 738 F.3d 158, 164 (7th Cir. 2013); see also
Jardine v. Dittmann, 658 F.3d 772, 777 (7th Cir. 2011) (per cu‐
riam) (“This court must fill any gaps in the state court’s dis‐
cussion by asking what theories ‘could have supported’ the
state court’s conclusion.”) (citation omitted).
Since AEDPA deference applies when a state court offers
no reasons, faulty reasons, or incomplete reasons, such defer‐
ence must surely be due where, as here, the state court offers
a terse explanation for a reasonable result. This is not to sug‐
gest that a state court may evade habeas review by merely in‐
canting the correct test (in this case, “totality of the circum‐
stances”). The majority is correct in saying that “if a court can
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merely state the generic Supreme Court rule without any
analysis, then no federal court could ever find that ‘a decision
… involved an unreasonable application of clearly established
Federal law.’” Ante at 22 (citation omitted). AEDPA review is
deferential but not toothless. Federal courts are charged with
reviewing state court records to assess the reasonableness of
state court decisions. We grant relief in a small but non‐trivial
portion of cases, at least at the appellate level. The issue is not
whether the state court might have overlooked something but
whether the bottom‐line result is “beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. at 103.
What federal courts may not do is infer that a decision was
unreasonable based on the lack of explanation. As a reader of
judicial opinions, I too would have appreciated more context
and development in the opinion of the Wisconsin Court of
Appeals. I cannot, however, hold that use of Dassey’s confes‐
sion was unconstitutional merely because the state court did
not say more about all the relevant factors. The overall mix of
relevant factors here simply does not dictate a finding that his
confession was involuntary.
III. Doctrinal Developments
Showing a lack of the required deference to the state
courts, the majority breaks new doctrinal ground in three sig‐
nificant respects: redefining what counts as a false promise of
leniency, relying on police bluffs in the interrogation to find
the confession was involuntary, and departing from a series
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of our court’s habeas cases denying relief to juveniles who
were subjected to much more pressure than Dassey was.
First, what counts as a false promise of leniency? The ma‐
jority opinion loses sight of the difference between general as‐
surances of better treatment, which are permitted even when
made to juveniles, and factually false promises, which are not.
We have long recognized that “a false promise of leniency
may render a statement involuntary” but that “police tactics
short of the false promise are usually permissible.” United
States v. Villalpando, 588 F.3d 1124, 1128 (7th Cir. 2009). In Vil‐
lalpando, we rejected a claim that a police detective made a
false promise of leniency where she offered to “go to bat” for
the defendant and said she would “sit down” with law en‐
forcement and probation to “work this out,” and where she
also remarked, “we don’t have to charge you.” Id. at 1129.
Similarly, in United States v. Rutledge, a police officer asked
the defendant whether he would be willing to give a post‐ar‐
rest statement. The officer advised the defendant that “all co‐
operation is helpful.” 900 F.2d at 1128. We noted that one “in‐
terpretation of the officer’s statement … is that it promised …
a net benefit from spilling the beans,” and if the officer made
such a promise without intending to keep it, “the statement
was fraudulent.” Id. at 1130–31 (emphasis omitted). “But it
was the sort of minor fraud that the cases allow. Far from mak‐
ing the police a fiduciary of the suspect, the law permits the
police to pressure and cajole, conceal material facts, and ac‐
tively mislead—all up to limits not exceeded” in that case. Id.
at 1131; see also Fare v. Michael C., 442 U.S. 707, 727 (1979) (po‐
lice “did indeed indicate that a cooperative attitude would be
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to [sixteen‐year‐old’s] benefit,” but their “remarks in this re‐
gard were far from threatening or coercive”).
The majority acknowledges that in Dassey’s case, the in‐
vestigators “never made the type of explicit and specific
promise of leniency that an adult of ordinary intelligence
might understand as a promise.” Ante at 83. That’s right. The
investigators’ statements were comparable to those permitted
in Villalpando and Rutledge. The investigators made vague as‐
surances that honest cooperation would make things easier
for Dassey “if this goes to trial”; that “the honest person is the
one who’s gonna get a better deal out of everything”; and that
honesty is the “only thing that will set you free.” One investi‐
gator said at the very beginning of the interview, before Das‐
sey had confessed to anything, that “from what I’m seeing …
I’m thinking you’re all right. OK, you don’t have to worry
about things.” But the other then cautioned: “We can’t make
any promises but we’ll stand behind you no matter what you
did.”
At no point did the investigators assure Dassey that he
would escape prosecution or receive some other specific ben‐
efit if he cooperated or confessed. Cf. Sharp v. Rohling, 793 F.3d
1216, 1235 (10th Cir. 2015) (subject’s will was overborne where
detective promised her she would not go to jail if she admitted
to her participation in crime); Henry v. Kernan, 197 F.3d 1021,
1027 (9th Cir. 1999) (subject’s will was overborne where officer
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falsely informed him that what he said “can’t be used against
you right now”).2
The majority insists, however, that whether police have
made an impermissible false promise of leniency (or of any‐
thing else) depends on the subjective perception of the sus‐
pect, no matter how distorted or inaccurate his perception
might be. Thus, to Dassey—with his borderline IQ and sug‐
gestible personality—the investigators’ vague assurances had
in the majority’s view the “same effect” as a fraudulent prom‐
ise. Ante at 83.
The Supreme Court’s “totality of the circumstances” test
takes account of the subjective characteristics of the defendant
(e.g., his age, health, and education). Yet no Supreme Court
case has held that a confession should be deemed involuntary
if the subject believed—however improbably or baselessly—
that he had been promised a get‐out‐of‐jail‐free card. No case
requires the reviewing court to disregard what police actually
said (on a video recording, no less) in favor of what the de‐
fendant, with the benefit of time, hindsight, and savvy coun‐
sel, says he thought the police said. At a minimum, reasonable
jurists could disagree whether the abstract assurances by the
2
In oral argument, we asked Dassey’s counsel to identify a case—any
case—in which a habeas petitioner was granted relief due to police repre‐
sentations similar to those made here. Counsel cited A.M. v. Butler, 360
F.3d 787 (7th Cir. 2004), a split panel decision that is readily distinguisha‐
ble and illustrates how much of a stretch Dassey’s claim is. In A.M., the
subject was just eleven years old, and he was not properly Mirandized. Id.
at 793. He testified at trial that the interviewing officer made him a specific
false promise: that if he confessed to beating and stabbing to death his
elderly neighbor, “God and the police would forgive him and he could go
home in time for his brother’s birthday party.” Id. at 794. Investigators
made no such false promise to Dassey.
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investigators here were, in context, false and fraudulent. That
alone should defeat any claim for habeas relief.
Even if we were to approach the question de novo, there is
good reason to review any alleged promises by investigators
from an objective point of view, at least when we have hard
evidence of what was said (and what was not). People who
commit brutal crimes of the sort Dassey was convicted of
committing tend to be maladjusted and detached from social
norms. It should come as no surprise that a juvenile who helps
to rape a helpless victim, caps off that experience by watching
television and chatting with his uncle, and then helps to mur‐
der their victim, as Dassey said he did, lives with a distorted
worldview. Dassey’s subjective impression of what police told
him should not be decisive.3
Second, the majority suggests that Dassey was at greater
risk of being misled by the investigators’ vague moral support
3
Dassey brought his involuntary confession claim under both 28
U.S.C. § 2254(d)(1), decisions contrary to or unreasonably applying clearly
established federal law, and (d)(2), decisions based on unreasonable fac‐
tual determinations. The majority and I both focus on the Supreme Court’s
“totality of the circumstances” test and related doctrinal considerations
under (d)(1). The majority also says in several places that the state courts
made unreasonable factual findings under (d)(2) but acknowledges that
the analyses under (d)(1) and (2) overlap here. Ante at 29. There is no dis‐
pute about what the investigators actually said, and the discussion in this
section shows why the claim should also fail under (d)(2). The state courts’
finding that the investigators made no false promises is best understood
as a finding that they made no legally relevant false promises, i.e., no spe‐
cific false promises of leniency, as distinct from vague assurances that co‐
operation would be in Dassey’s best interests. Dassey has not shown by
clear and convincing evidence that the finding was wrong. See
§ 2254(e)(1).
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because they repeatedly told him that they “already knew”
what happened. As the majority construes these statements,
Dassey could have believed that—so long as he was honest—
nothing bad would happen to him. See ante at 84. The major‐
ity cites no case from the Supreme Court or any other court
holding that such bluffing by police about what they know
could render a confession involuntary. On the contrary, we
have recognized that “a lie that relates to the suspect’s connec‐
tion to the crime is the least likely to render a confession invol‐
untary.” United States v. Ceballos, 302 F.3d 679, 695 (7th Cir.
2002) (emphasis added) (citation omitted); see also United
States v. Sturdivant, 796 F.3d 690, 697 (7th Cir. 2015) (“[W]e
have repeatedly held that a law‐enforcement agent may ac‐
tively mislead a defendant in order to obtain a confession, so
long as a rational decision remains possible.”) (alteration in
original), quoting Conner v. McBride, 375 F.3d 643, 653 (7th Cir.
2004).
Third, in concluding that Dassey’s confession was invol‐
untary, the majority effectively departs from a string of our
habeas decisions involving confessions by juveniles who were
denied relief despite being subjected to far greater pressures
than Dassey was.
For instance, in Etherly v. Davis, 619 F.3d 654, 657 (7th Cir.
2010), we reversed habeas relief for a petitioner with no prior
criminal justice experience who at age fifteen was taken from
his home before dawn and interviewed by police several
hours later without the consent, let alone the presence, of a
parent or other friendly adult. Like Dassey, Etherly had bor‐
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derline intellectual abilities; like the investigators here, the po‐
lice in Etherly assured the juvenile that it would “go better for
him in court” if he cooperated. Id. at 658.
In Carter v. Thompson, 690 F.3d 837, 839 (7th Cir. 2012), we
denied relief to a habeas petitioner who at age sixteen en‐
dured an interrogation lasting fifty‐five hours in total. During
gaps in the interrogation, the petitioner slept on a bench, with‐
out a pillow, a blanket, or a change of clothes. Id. at 841; see
also Murdock v. Dorethy, 846 F.3d 203, 210 (7th Cir. 2017) (deny‐
ing relief to sixteen‐year‐old who was interrogated over
seven‐hour period); Gilbert, 488 F.3d at 784–86 (denying relief
to fifteen‐year‐old who was kept from his mother and inter‐
rogated over nine‐hour period); Hardaway v. Young, 302 F.3d
757, 766 (7th Cir. 2002) (denying relief to fourteen‐year‐old
who was interviewed over sixteen‐hour period and aban‐
doned for lengthy intervals in interrogation room).
The majority describes these cases but makes no real effort
to reconcile them with the relief it grants Dassey. Instead, it
criticizes the Wisconsin Court of Appeals for failing to elabo‐
rate on all the factors the majority considers important. See
ante at 40–41. As explained above, § 2254(d) does not author‐
ize federal courts to critique state court opinions so closely. It
is enough that the state court identified the correct legal
standard and applied it reasonably to the facts of the case. Just
as police investigators will be left scratching their heads after
this decision, state and federal courts will be flummoxed as
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they attempt to reconcile our grant of habeas relief to Dassey
with the line of cases pointing the other way.
IV. The Details of Dassey’s Confession
Having replaced deference to the state court with what
amounts to de novo review, and having redefined what counts
as a false promise of leniency, the majority evaluates Dassey’s
confession in the light most favorable to him. The majority
opinion highlights the moments when Dassey seemed most
hesitant or ambivalent.
I have no quarrel with the majority’s consideration of those
moments. We need to consider Dassey’s strongest arguments
as well as the strongest arguments advanced by the State. At
a few points, the investigators’ questions were so assertive
and leading that it is difficult to tell whether Dassey made an
honest attempt at a truthful answer or simply offered up the
answer he believed the investigators were fishing for.
A good example: the investigators believed that Teresa
Halbach had been shot in the head, a detail that had not been
reported in the media. (A burnt fragment of her skull recov‐
ered from the fire pit had traces of lead on it.) If Dassey knew
that Teresa had been shot in the head, that knowledge would
tend to corroborate his story. The investigators asked Dassey,
“[W]hat else did you do? Come on. Something with the
head.” Dassey floundered, volunteering that his uncle Avery
cut off some of Teresa’s hair and punched her in the head and
that he—Dassey—slit Teresa’s throat. Apparently exasper‐
ated, one investigator said: “All right, I’m just gonna come out
and ask you. Who shot her in the head?” Avery did, Dassey
replied, adding that he did not volunteer the information be‐
cause he “couldn’t think of it.” It’s reasonable to be skeptical
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about Dassey’s response to such a leading question, at least
taking the response in isolation.
But for every point when Dassey seemed uncertain or con‐
fused, at many other points Dassey gave specific and incrim‐
inating answers to open‐ended questions. Most important,
Dassey volunteered specific and incriminating details about
what he did, what he saw, what he heard, and even what he
smelled.
Early in the interview, the investigators asked Dassey
what Avery told him and showed him after he arrived at
Avery’s trailer. Dassey said: “He showed me the knife and the
rope.” They then asked Dassey where he saw Teresa. Dassey
said she was lying dead in the back of her jeep and that Avery
told him he stabbed her. They asked why Avery had invited
Dassey over. Dassey said, “Probably to get rid of the body.”
When the investigators asked what happened next, Dassey
admitted that he helped his uncle move Teresa’s body to the
burn pit. When they asked Dassey to describe Teresa’s inju‐
ries, he said she had been stabbed in her stomach, a detail he
repeated several times. (The condition of Teresa’s remains
made it impossible to confirm or refute that fact.)
The investigators suspected Dassey had left out some im‐
portant information. They asked how Dassey knew Teresa
was already dead when he saw her in the jeep. Dassey volun‐
teered that he heard screaming while riding his bike outside.
He then admitted that he entered Avery’s trailer and saw Te‐
resa. He said that Teresa was handcuffed to Avery’s bed.
When the investigators asked Dassey what Avery told him,
Dassey said: “That he never got some of that stuff so he
wanted to get some,” adding that Avery “wanted to f*** her
so hard.”
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While it took more than a little coaxing from the investiga‐
tors before Dassey admitted that he too raped Teresa, Dassey
soon provided quite specific details about his role in the
crime. He said that Teresa begged him to do the “right thing”;
that Avery, conversely, praised him for doing a “good job”;
that he helped Avery tie up Teresa; and that he slit her throat
and cut her hair. Dassey described the brutal cremation, re‐
calling how he and Avery carried Teresa’s body to the burn pit
and covered her with branches and tires.
When the investigators asked Dassey how he and Avery
cleaned the crime scene, he recounted their efforts: “We threw
gas on [a pool of blood] so he could get it off. Then he tried
paint thinner and then he went to bleach to get it off and …
he went like he was spraying it … . I thought he got it on the
floor and it splashed up on my pants … .” The investigators
retrieved Dassey’s pants from his home. Sure enough, they
were stained with bleach.
In addition to answering open‐ended questions in specific
and incriminating detail, Dassey resisted several lines of in‐
quiry. Those points of resistance gave the state courts substan‐
tial reason to find that Dassey’s will was not overborne. Recall
that the investigators were keenly interested in any infor‐
mation Dassey could offer about how and when Teresa Hal‐
bach was shot. They asked him how many times he shot Te‐
resa. “Zero,” he replied. He added that he “didn’t even touch
the gun,” explaining that he had been unable to shoot ever
since his mother’s ex‐boyfriend had shot their sick cat.
After Dassey admitted that he cut Teresa’s hair at Avery’s
urging, the investigators asked what had become of the hair.
Dassey insisted that he did not know and did not have the
hair. Even when the investigators warned Dassey that they
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would find the hair if he had kept it, he insisted, “I don’t got
none of the hair.”
At another point in the interview, the investigators asked
Dassey whether he saw Avery rape Teresa. Three times Das‐
sey said no. They repeatedly asked Dassey whether he and
Avery had used wires hanging in the garage to harm Teresa;
Dassey insisted they had not. He rejected their suggestion that
he and Avery might have hung Teresa from a rafter, even after
the investigators pointed out that the “worst” was over and
nothing he said would surprise them.
In one of the most direct tests of Dassey’s suggestibility,
the investigators told him falsely that Teresa had a tattoo on
her stomach and asked him if he remembered it. Dassey said
no. They pressed Dassey, asking if he disagreed with them.
Dassey replied: “No but I don’t know where it was.” If Dassey
were as overwhelmed by the police questioning as the major‐
ity seems to believe, surely he would have simply agreed that
Teresa had a stomach tattoo—and that he had kept her hair—
and that he had hung her from the rafters, and so on.
To be sure, Dassey’s confession was not a smooth and con‐
sistent story. There were holes in the narrative. Dassey waf‐
fled and backtracked. The sequence of events was not always
clear. The majority, reviewing the interview with its defense‐
friendly “key” in hand, takes these inconsistencies as proof
that Dassey was not recounting real memories but only telling
the investigators what he believed they wanted to hear.
As an alternative “key” for reviewing Dassey’s confession,
one might consider that the sixteen‐year‐old subject was
wracked by guilt and was finally coming to grips with the
gravity of his crimes. He had been led to do things so awful
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that, in the months following the crimes, he stayed silent but
lost forty pounds and had fits of uncontrolled sobbing.
Owning up to what he did proved difficult for Dassey, as
it surely would for anyone with a trace of a conscience. He
had trouble getting the words out. Given the vagaries of hu‐
man memory, it is not surprising that some details and se‐
quences had become garbled as he replayed those violent and
grisly images over and over in his mind for four months. It is
easy to understand why, by the time of the March 1 interview,
Dassey was not sure about everything that had happened and
in what order.
While Dassey’s recollection of the sequence of events was
hazy, he remembered some details vividly. He remembered
colors, sounds, and smells. He remembered his uncle stand‐
ing in the doorframe in his white shirt and red shorts, beck‐
oning him inside. He remembered Teresa Halbach, lying alive
on his uncle’s bed and later dead in the back of the jeep. He
remembered her screams. He remembered her telling him he
did not have to rape her and he should do the right thing. He
remembered her blood pooling on the garage floor. He re‐
membered the odor of her burning flesh. And he remembered
why he committed the cruel acts he described: he “wanted to
see how [sex] felt.”
The majority writes that “the lack of physical evidence was
the weakest part of the State’s case.” Ante at 99‐100. The phys‐
ical evidence does not prove or disprove Dassey’s guilt or the
accuracy of his confession. Still, the State offered substantial
evidence that tended to corroborate some details of his con‐
fession. Examples include handcuffs and leg irons found in
Avery’s bedroom (corroborating Dassey’s description of Te‐
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resa’s rape); a charred shovel, rake, and car seat (corroborat‐
ing Dassey’s description of the crude cremation of Teresa’s
body); and a stipulation by a family friend that he saw Avery
and Dassey standing by a bonfire on Avery’s property on Hal‐
loween night in 2005, the same night that Teresa and her SUV
vanished after she headed to an appointment to take photo‐
graphs at Avery’s junkyard.
We also should not lose sight of the most damning physi‐
cal evidence: the bones of Teresa Halbach, broken and
charred, buried in the ashes of Avery’s burn pit. The corpus
delicti does not point inexorably to Dassey. But it is grim cor‐
roboration for much of the story he told the investigators.
V. Conclusion
All agree that the governing constitutional standard for
the voluntariness of a confession depends on the totality of
the circumstances. The state courts recognized that standard
and applied it reasonably to the facts before them. As in most
cases on voluntariness of confessions, relevant factors point
in conflicting directions. A few factors and passages from
Dassey’s confession support the majority’s view that the con‐
fession was not voluntary. Many other factors and passages
support the state courts’ view that, overall, the confession was
voluntary. The Wisconsin Court of Appeals could have been
much more thorough in its discussion, but its conclusion was
within the bounds of reason. It was not contrary to or an un‐
reasonable application of controlling Supreme Court prece‐
dent. We should reverse the district court’s grant of the writ
of habeas corpus.
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