“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. 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. There's 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.”
This is the start of a now-infamous interrogation which led to a questionable confession, a m
urder and rape conviction, and a life sentence. This is a controversial quote made by investigators in the recorded interrogation of 16-year-old Brendan Dassey, which was brought to light in the popular 2015 Netflix Original Series “Making a Murderer”. After the Netflix documentary aired, viewers around the world called for the release of Brendan Dassey, and The Bluhm Legal Clinic for Wrongful Convictions of Youth eventually took on Brendan’s case, which resulted in a complex legal battle in Federal court.
In August of 2017, the 7th Circuit Court of Appeals granted Brendan Dassey’s petition for habeas corpus relief, holding that his confession was involuntary and the decision of the State court was made contrary to clearly established Supreme Court precedent. This news sent the media and fans of “Making a Murderer” into celebration because many agreed that Brendan was the innocent victim of a corrupt criminal justice system. However, Brendan was not released at that time—and he actually remains in prison to this day. Why? Because the 7th Circuit Court of Appeals agreed to hear Brendan’s case en banc, or with a full bench. The divided Court decided in December of 2017 that Brendan had not met the difficult legal standard for relief in a habeas petition challenging a State court decision.
The complex legal issues surrounding habeas corpus relief have understandingly not been the center of discussion in media coverage of Brendan’s case. Instead, viewers and media alike are focused on the clear video footage which shows investigators taking advantage of Brendan. The investigators assigned to Brendan's case exploited the boy's low to borderline IQ by feeding Brendan key information about the murder and rape of Theresa Halbach, and interviewing him multiple times without an attorney or parent present. The investigators did all of this, even though it was clear that Brendan was more vulnerable than the average 16-year-old.
Again, Netflix viewers and the media are focusing on the scene where Brendan had a recorded discussion with his mother after he provided a confession during an interrogation saying, “They got to my head.” From the outside, it seems obvious that the State court erred in ruling that this confession was voluntary, but at this point in Brendan’s case, he must meet the nearly impossible standard set forth in the AntiTerrorism and Effective Death Penalty Act (1996) § 2254(d)(1) - (2) (AEDPA). This standard allows a habeas petition to be granted if: (1) the state court decision was contrary to, or an unreasonable application of, clearly established Supreme Court precedent; or (2) the State court decision was based on an unreasonable determination of the facts in-light-of the evidence presented in the State court proceeding.
The Writ of Habeas Corpus has long been a right guaranteed to prisoners in the United States Constitution. However, Congress has passed legislation to greatly limit the availability of relief granted to prisoners who claim their Constitutional rights have been violated. AEDPA was passed with the intent of increasing judicial efficiency by creating an even more difficult standard to meet. In reality, the passage of AEDPA has created complicated litigation, confusion in the Court of how AEDPA fits in with Supreme Court Habeas Corpus precedent, and a standard of relief that is nearly impossible to meet. Critics of the legislation have declared that the passage of AEDPA marked has the beginning of the “dark age” of Habeas Corpus law.
In Haley v. Ohio (1948), the Supreme Court has recognized that juveniles cannot be held to the same standard as adults in the criminal justice. Time and time again, through several decisions, in multiple areas of criminal law, courts across the country have affirmed this idea. However, for some reason, Brendan Dassey continues to be punished for a crime that he could not have been convicted of, but for a confession that he gave after questionable interrogation techniques. And in 2011, Justice Sotomayor, in her majority opinion in J. D. B. v. North Carolina, explained that considering age in custody analysis should be “common sense,” citing to amicus briefs that explain juvenile brain development and their vulnerability to false confessions. The investigators relied on the Reid Method of interrogation, which took advantage of the vulnerable 16-year-old, and reassured Brendan that “The truth will set you free.” Brandon only confessed to the important facts of the case after investigators fed him information about the crime over and over again. Finally, as the 7th Circuit Court of Appeals noted when granting Brandon’s habeas petition, Brendan’s confession was the only piece of evidence that connected Brendan to the murder and rape of Theresa Haibach -- his DNA was not found anywhere on the crime scene.
So, will Brendan Dassey ever be released from his life prison sentence? Since the 7th Circuit Court of Appeals, sitting en banc, reversed the holding of the lower court, his only chance for relief is in the hands of U.S. Supreme Court. On behalf of Brendan Dassey, The Bluhm Legal Clinic for Wrongful Convictions of Youth legal team and former Solicitor General for the United States, filed a petition for a writ of certiorari on February 20th, 2018. The Supreme Court should hear Brendan’s case, and rule that the State court’s decision that his confession was involuntary and contrary to established Supreme Court precedent in juvenile law.
The Court should also take into consideration the research behind juvenile false confessions, as presented by amicus briefs. For example, the American Psychological Association and the National Association of Social Work filed an amicus brief on behalf of Brendan urging the Court to hear the case. In the brief, the organizations cite to a mixture of case law and psychological research to make the argument that juveniles like Brandon are particularly vulnerable to deceitful interrogation techniques because their brains have not fully developed, they lack maturity, and are not able to grasp the severe consequences that could result from a false confession. To demonstrate this for the Court the brief states, “After providing the interrogators with inculpatory statements [connecting him to the murder and rape of Theresa Halbach], the petitioner asked about returning to his sixth period at school because he was concerned about a class assignment”.
Finally, if the Court hears Brendan’s case and rules that his confession was involuntary, the Court should make clear that under an AEDPA § 2254(d) habeas petition, recent juvenile confession law in J. D. B. v. North Carolina should apply retroactively to habeas petitioners who were convicted as juveniles in State court to leave a broader, less constrained avenue for habeas relief.