CHICAGO (CN) – The en banc Seventh Circuit heard arguments Tuesday over whether Brendan Dassey of “Making a Murderer” fame was coerced into confessing to the rape and murder of a Wisconsin woman a decade ago.
The hearing was dominated by questions from Chief Judge Diane Wood, who was highly skeptical that Dassey’s confession could be considered voluntary.
“The investigators made my skin crawl,” Wood told Wisconsin Deputy Solicitor General Luke Berg, who argued for the state. “This lulling behavior … it was major deception.”
Dassey, a 16-year-old with “intellectual deficits” at the time of his interrogation and arrest, was convicted of assisting his uncle, Steven Avery, in the brutal rape and murder of Theresa Halbach in 2005. Halbach’s bones were found charred in a burn pit near Avery’s home.
There was no DNA or other physical evidence linking Dassey to the crime, and his conviction rested solely on his confession.
A documentary series called “Making a Murderer” released on Netflix’s streaming service strongly suggests the pair were wrongfully convicted so that rural Manitowoc County could avoid paying a large settlement following Avery’s exoneration for a different crime. Avery served 18 years in prison for a rape he never committed, and had filed a $36 million civil suit against the county.
The series generated new interest in the 11-year-old case, including harsh criticism of the investigators who questioned Dassey without a parent or lawyer present and allegedly promised lenience that never came. Dassey was sentenced to life in prison with no possibility of parole until 2048.
U.S. Magistrate Judge William E. Duffin reversed his conviction last year, finding the interrogator’s “false promises” and suggestive interrogation techniques, combined with Dassey’s age, inexperience and intellectual disabilities, rendered his confession involuntary.
On appeal, a Seventh Circuit panel consisting of Judges Illana Rovner, Anne Claire Williams, and David Hamilton affirmed the reversal, with Hamilton dissenting. The Chicago-based appeals court then vacated that decision and decided to rehear the case with the full court.
Tuesday’s seven-judge en banc hearing focused on whether the interrogating officer’s statements could be considered promises of leniency, particularly their statement to Dassey that “honesty will set you free,” a Biblical quote.
Berg, arguing for Wisconsin, said “there must be a specific offer of leniency” for an interrogation to be ruled coercive, and that there was no such offer in this case. Rather, the officers told Dassey at the outset that they “couldn’t make any promises,” Berg said.
“But that’s for a competent adult,” Judge Wood said. “Juveniles need a different test.”
The interrogating officers told Dassey 28 times across several different sessions that “everything would be OK.” They also told him that they were “not acting as officers” but “as fathers.” One officer said he had a son Dassey’s same age, and would not leave Dassey “high and dry.”
After confessing to Halbach’s rape and murder, Dassey asked the investigators if he could return to his sixth period class, a statement that several judges pointed to Tuesday.
“Doesn’t that show he just doesn’t get it?” Wood asked Berg.
Dassey’s attorney Laura Nirider told the Seventh Circuit judges that “there was a very specific promise made – ‘Honesty will set you free.’”
Judge Diane Sykes agreed with Berg, however, saying there was no way a Biblical quote could be considered a promise of leniency.
Nirider responded to Sykes, saying the officers’ “promises must be evaluated as they apply to the package of Dassey’s vulnerabilities,” including his age, his low IQ of 81-83, and his disabilities. She said testing has found Dassey has little to no understanding of idioms.
Further, she said, Dassey tested as highly suggestible – more suggestible than 95 percent of the population.
Nirider also took issue with Judge Hamilton’s panel dissent, and told the court there were almost no facts that the police did not feed Dassey during the interviews. Those few facts that he told investigators of his own accord were allegedly public knowledge that he could have learned from television reports about the murder.
All the judges participated in questioning, except for Judge Frank Easterbrook, who gave no inkling of which way he might rule.
The Seventh Circuit is expected to rule on the closely watched case within three months.