Wisconsin Seeks Rehearing in ‘Making a Murderer’ Case

MADISON, Wis. (CN) – Wisconsin Attorney General Brad Schimel filed a petition Wednesday asking the en banc Seventh Circuit to rehear the overturned homicide conviction of “Making a Murderer” subject Brendan Dassey, who could be released from prison in September.

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 rape and murder of Theresa Halbach in 2005. Halbach’s bones were found charred in a burn pit near Avery’s home in Manitowoc County, Wis.

In March 2006, Dassey confessed to police on videotape that he raped Halbach and helped Avery murder her and burn her body.

Dassey was found guilty of first-degree murder, rape, and mutilation of a corpse based upon compelling evidence of guilty by a jury. The trial court held that Dassey’s confession was voluntary and the Wisconsin Court of Appeals affirmed.

However, 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.

U.S. Magistrate Judge William E. Duffin reversed Dassey’s conviction last August, finding the interrogator’s “false promises” and suggestive interrogation techniques, combined with Dassey’s age, inexperience and intellectual disabilities, rendered his confession involuntary.

Two weeks ago, a three-judge panel of the Seventh Circuit ruled 2-1 to affirm the district court’s reversal of Dassey’s homicide conviction and said he should be released from prison unless he is retried within 90 days.

In a petition filed Wednesday, Wisconsin Attorney General Brad Schimel called for the full Seventh Circuit to rehear the case.

“The opinion warrants en banc review both because it conflicts with decisions of this court and other courts of appeals, and because it will leave law enforcement ‘scratching their heads’ over how to conduct interrogations,” the petition states. “The panel’s opinion ‘calls into question standard interrogation techniques that courts have routinely found permissible, even in cases involving juveniles,’ thus creating multiple intra- and inter-circuit conflicts.”

Schimel noted that the Wisconsin Court of Appeals found that investigators used normal speaking tones with Dassey and made no threats or promises of leniency.

The state’s petition also questions the Seventh Circuit panel’s June 22 ruling.

“The panel concluded that [interrogation] techniques contributed to finding the confession involuntary, given Dassey’s mental characteristics and age,” the petition says. “The majority also held that [Antiterrorism and Effective Death Penalty Act, or AEDPA] deference did not require a different conclusion even though no Supreme Court case had found an unconstitutionally coerced confession based upon the above-described techniques, and repeatedly criticized the Wisconsin Court of Appeals for the brevity of its discussion of the confession.”

In the June 22 decision, Judge Hamilton David dissented, saying the panel’s decision both fundamentally changed the law for interrogating juveniles and did not follow AEDPA’s deferential standards.

According to Wisconsin’s petition for an en banc rehearing, the panel’s ruling means that encouraging honesty can now be considered coercive when used on an intellectually disabled teenager.

In addition, the state argues that, according to the Seventh Circuit’s decision last month, bluffing by police about what they know may now render a confession involuntary and “fatherly assurance” like touching an interviewee’s knee can be deemed a coercive technique.

Moreover, Wisconsin argues, a court can now find “implied promises” even if the investigators read the suspect their Miranda rights and tell them “they can’t make any promises.”

In addition, according to the state’s petition, a “friendly adult” is necessary, at least in some cases, to accompany a 16-year-old during investigations to explain the consequences of a Miranda waiver or a confession and to remind them “not to guess at answers.”

Wisconsin also argues a new voluntariness test arises from the panel’s decision.

The previous test weighed “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation,” according to the state’s petition.

Now, the state argues, the panel’s “reimagined framework for juvenile interviews puts law enforcement in a straitjacket, making investigations ‘considerably more difficult.’”

“Police often need to interview teenagers; 16-year-olds sometimes commit violent crimes—as Dassey did here—or they might be important witnesses, as the investigators assumed of Dassey until he confessed,” the petition states. “If police believe a teenager is lying, the least coercive response is to express disbelief and ask for the truth. Yet, according to the majority, doing so can be considered a veiled threat that coerces a teenager into telling police ‘what[ever] . . . they want[ ] to hear.’ So ‘what,’ exactly, ‘should police do’ if a teenage interviewee is not immediately and completely truthful?” (Emphasis in original.)

According to the petition, the district court’s 91-page opinion, the panel’s 104-page opinion and Dassey’s 56-page brief all do not identify a single case that finds a confession involuntary on facts resembling those in Dassey’s case.

“Here, the investigators did all they could—they asked for consent from both Dassey and his mother, multiple times, offered to let his mother participate, read, restated, and reiterated Miranda warnings, multiple times, and confirmed that Dassey understood them, multiple times,” Wisconsin’s petition states.

AG Schimel argues “these dramatic changes in law are all the more problematic given that this is a federal habeas case,” adding that AEDPA relief can only be granted if a state court incorrectly applies holdings of the U.S. Supreme Court.

“Instead of citing any analogous decision from the Supreme Court, as AEDPA requires, the majority wrote that ‘other cases can only act as broad guideposts’ because voluntariness depends on the ‘unique characteristics of both the defendant and the interrogation,’” the petition states. “But, as Judge Hamilton explained, “[t]hat is exactly . . . why . . . habeas relief must be denied.’”

The Wisconsin Department of Justice did not immediately respond Thursday to an email request for further comment on the case.

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