Petition for Writ of Certiorari — Brendan Dassey, Petitioner v. Michael A. Dittmann

APPENDICES

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APPENDIX A

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

No. 16-3397

DASSEY,

Petitioner–Appellee,

v.

DITTMANN,

Respondent–Appellant.

Argued September 26, 2017

Decided December 8, 2017

[877 F.3d 297]

Before Wood, Chief Judge, and Easterbrook, Kanne,

Rovner, Williams, Sykes, and Hamilton, Circuit Judges.*

OPINION

Hamilton, Circuit Judge.

Petitioner Brendan Dassey confessed on videotape

to participating in the 2005 rape and murder of Teresa

Halbach and the mutilation of her corpse. The Wisconsin state courts upheld Dassey’s convictions for these

crimes, finding that his confession was voluntary and

could be used against him. The principal issue in this

habeas corpus appeal is whether that finding was based

on an unreasonable application of Supreme Court prec*

Circuit Judges Flaum and Barrett did not participate in the

consideration or decision of this case.

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edent or an unreasonable view of the facts. See 28

U.S.C. § 2254(d).

Whether Dassey’s confession was voluntary or not

is measured against a general standard that takes into

account the totality of the circumstances. See Withrow

v. Williams, 507 U.S. 680, 693–94, 113 S.Ct. 1745, 123

L.Ed.2d 407 (1993); Gallegos v. Colorado, 370 U.S. 49,

55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); see also Fare v.

Michael C., 442 U.S. 707, 727, 99 S.Ct. 2560, 61 L.Ed.2d

197 (1979) (admissibility of juvenile confession). Some

factors would tend to support a finding that Dassey’s

confession was not voluntary: his youth, his limited intellectual ability, some suggestions by the interrogators, their broad assurances to a vulnerable suspect

that honesty would produce leniency, and inconsistencies in Dassey’s confession. Many other factors, however, point toward a finding that it was voluntary.

Dassey spoke with the interrogators freely, after receiving and understanding Miranda warnings, and with

his mother’s consent. The interrogation took place in a

comfortable setting, without any physical coercion or

intimidation, without even raised voices, and over a

relatively brief time. Dassey provided many of the

most damning details himself in response to open–

ended questions. On a number of occasions he resisted

the interrogators’ strong suggestions on particular details. Also, the investigators made no specific promises

of leniency.

After the state courts found the confession voluntary, a federal district court and a divided panel of this

court found that the state courts’ decision was unreasonable and that Dassey was entitled to a writ of habeas corpus. We granted en banc review to consider the

application of the deferential standards of 28 U.S.C.

§ 2254(d) and the implications of the panel decision for

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interrogations of juvenile suspects. The state courts’

finding that Dassey’s confession was voluntary was not

beyond fair debate, but we conclude it was reasonable.

We reverse the grant of Dassey’s petition for a writ of

habeas corpus.

Part I provides an overview of the applicable law.

Part II sets forth the relevant facts about Teresa Halbach’s murder, Dassey’s confession, and the court proceedings. Part III applies the law to the relevant facts,

keeping in mind the deference we must give under

§ 2254(d) to state court decisions as to which reasonable

judges might differ.

I. The Applicable Law

We first discuss our standard of review under the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) and then describe the Supreme Court’s

clearly established law for when a confession, particularly a confession by a sixteen–year–old like Dassey, is

deemed voluntary and admissible.

A. Deference Under AEDPA

In considering habeas corpus petitions challenging

state court convictions, “our review is governed (and

greatly limited) by” AEDPA. Hicks v. Hepp, 871 F.3d

513, 524 (7th Cir. 2017) (citation omitted). The standards in 28 U.S.C. § 2254(d) were designed to “prevent

federal habeas ‘retrials’ and to ensure that state–court

convictions are given effect to the extent possible under law.” Id., quoting Bell v. Cone, 535 U.S. 685, 693,

122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Section 2254(d)

provides that a state court conviction cannot be overturned unless the state courts’ adjudication of a federal

claim on the merits:

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(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 of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light

of the evidence presented in the State court

proceeding.

The decision federal courts look to is the “last reasoned state–court decision” to decide the merits of the

case, even if the state’s supreme court then denied discretionary review. Johnson v. Williams, 568 U.S. 289,

133 S.Ct. 1088, 1094 n.1, 185 L.Ed.2d 105 (2013). In this

case, we look to the Wisconsin Court of Appeals decision that Dassey’s confession was voluntary.1

The standard for legal errors under § 2254(d)(1)

was meant to be difficult to satisfy. Harrington v.

Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624

(2011). The issue is not whether federal judges agree

with the state court decision or even whether the state

court decision was correct. The issue is whether the

decision was unreasonably wrong under an objective

standard. Williams v. Taylor, 529 U.S. 362, 410–11, 120

1

On October 30, 2017, the Supreme Court heard argument in

Wilson v. Sellers, No. 16–6855, where one question is whether federal courts in habeas cases should continue to “look through” state

supreme court summary decisions on the merits to the last state

court decision that provided an explanation. See generally

Hittson v. Chatman, –––U.S. ––––, 135 S.Ct. 2126, 2127, 192

L.Ed.2d 887 (2015) (Ginsburg, J., concurring in denial of certiorari). If the Court holds in Wilson that federal courts reviewing a

state supreme court summary denial of review should give the

state courts the benefit of any merits rationale the record could

support, our review would become even more deferential, so the

outcome here would not change.

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S.Ct. 1495, 146 L.Ed.2d 389 (2000) (majority opinion of

O’Connor, J.). Put another way, we ask whether the

state court decision “was so lacking in justification that

there was an error well understood and comprehended

in existing law beyond any possibility for fairminded

disagreement.” Richter, 562 U.S. at 103, 131 S.Ct. 770.

The existing law that applies is limited to that of the

Supreme Court of the United States, which has instructed the lower federal courts to uphold a state

court conviction unless the record “cannot, under any

reasonable interpretation of the [Court’s] controlling

legal standard, support a certain ruling.” Panetti v.

Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168

L.Ed.2d 662 (2007). Even if we were to consider the

approach in past Supreme Court decisions outmoded,

as the dissents suggest, a state court’s decision consistent with the Supreme Court’s approach could not be

unreasonable under AEDPA.

As a result, federal habeas relief from state convictions is rare. It is reserved for those relatively uncommon cases in which state courts veer well outside

the channels of reasonable decision–making about federal constitutional claims. AEDPA deference is not

conclusive, however. Where the record shows that

state courts have strayed from clearly established federal law, we can and do grant relief. E.g., Richardson

v. Griffin, 866 F.3d 836 (7th Cir. 2017); Jones v. Calloway, 842 F.3d 454 (7th Cir. 2016); McManus v. Neal,

779 F.3d 634 (7th Cir. 2015); Shaw v. Wilson, 721 F.3d

908 (7th Cir. 2013); Harris v. Thompson, 698 F.3d 609

(7th Cir. 2012); Jones v. Basinger, 635 F.3d 1030 (7th

Cir. 2011).

Review of state court factual findings under AEDPA is similarly deferential. Under § 2254(d)(2), federal

courts cannot declare “state–court factual determina-

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tions ... unreasonable merely because [we] would have

reached a different conclusion in the first instance.”

Brumfield v. Cain, ––– U.S. ––––, 135 S.Ct. 2269, 2277,

192 L.Ed.2d 356 (2015) (internal quotation marks and

citation omitted). AEDPA does not permit federal

courts to “supersede the trial court’s ... determination”

if a review of the record shows only that “[r]easonable

minds ... might disagree about the finding in question.”

Id. (internal quotations and citations omitted). But

again, “deference does not imply abandonment or abdication of judicial review, and does not by definition preclude relief.” Id. (internal quotations and citations

omitted).

B. The Law of Confessions

The Due Process Clause of the Fourteenth

Amendment forbids the admission of an involuntary

confession in evidence in a criminal prosecution. Miller

v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d

405 (1985). In deciding whether a confession was voluntary, courts assess “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973); see also Withrow v. Williams, 507

U.S. 680, 693–94, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993)

(collecting relevant factors). The purpose of this test is

to determine whether “the defendant’s will was in fact

overborne.” Miller, 474 U.S. at 116, 106 S.Ct. 445.

The Supreme Court’s many cases applying the voluntariness test have not distilled the doctrine into a

comprehensive set of hard rules, though prohibitions on

physical coercion are absolute. See Mincey v. Arizona,

437 U.S. 385, 401, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)

(statements resulted from “virtually continuous ques-

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tioning of a seriously and painfully wounded man on the

edge of consciousness”); Brown v. Mississippi, 297 U.S.

278, 279, 56 S.Ct. 461, 80 L.Ed. 682 (1936) (confessions

extracted by “brutality and violence”). AEDPA does

not “require state and federal courts to wait for some

nearly identical factual pattern before a legal rule must

be applied” because “even a general standard may be

applied in an unreasonable manner.” Panetti, 551 U.S.

at 953, 127 S.Ct. 2842, quoting Carey v. Musladin, 549

U.S. 70, 81, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (Kennedy, J., concurring in the judgment); accord, Yarborough v. Alvarado, 541 U.S. 652, 663–64, 124 S.Ct.

2140, 158 L.Ed.2d 938 (2004).

Nevertheless, applying a general standard like voluntariness “can demand a substantial element of judgment,” and determining whether that judgment is reasonable “requires considering the rule’s specificity.”

Alvarado, 541 U.S. at 664, 124 S.Ct. 2140. “The more

general the rule, the more leeway courts have in reaching outcomes in case–by–case determinations.” Id. (upholding state court Miranda conclusion where factors

pointed in opposite directions). The state courts had

such leeway here, and in the end, that leeway is decisive as we apply the test of § 2254(d)(1).

This general standard has some specific requirements to guide courts. First, a person arguing his confession was involuntary must show that the police engaged in coercive practices. See Colorado v. Connelly,

479 U.S. 157, 164–65, 107 S.Ct. 515, 93 L.Ed.2d 473

(1986). Physically abusive interrogation tactics would

constitute coercion per se. Stein v. New York, 346 U.S.

156, 182, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953) (physical

violence is per se coercion), overruled on other grounds

by Jackson v. Denno, 378 U.S. 368, 381, 84 S.Ct. 1774,

12 L.Ed.2d 908 (1964); Brown, 297 U.S. at 286–87, 56

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S.Ct. 461 (coercion and brutality); United States v. Jenkins, 938 F.2d 934, 938 (9th Cir. 1991) (physical abuse is

coercion per se); Miller v. Fenton, 796 F.2d 598, 604 (3d

Cir. 1986) (same).

Interrogation tactics short of physical force can

amount to coercion. The Court has condemned tactics

designed to exhaust suspects physically and mentally.

Such tactics include long interrogation sessions or prolonged detention paired with repeated but relatively

short questioning. Davis v. North Carolina, 384 U.S.

737, 752, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966) (finding

coercive the practice of repeated interrogations over

sixteen days while the suspect was being held incommunicado).

The Supreme Court has not found that police tactics not involving physical or mental exhaustion taken

alone were sufficient to show involuntariness. In several cases, the Court has held that officers may deceive

suspects through appeals to a suspect’s conscience, by

posing as a false friend, and by other means of trickery

and bluff. See, e.g., Procunier v. Atchley, 400 U.S. 446,

453–54, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971) (suspect was

deceived into confessing to false friend to obtain insurance payout to children and stepchildren); Frazier v.

Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684

(1969) (deceiving suspect about another suspect’s confession). False promises to a suspect have similarly not

been seen as per se coercion, at least if they are not

quite specific. See Arizona v. Fulminante, 499 U.S.

279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (rejecting language in Bram v. United States, 168 U.S. 532, 18

S.Ct. 183, 42 L.Ed. 568 (1897), stating that a confession

could not be obtained by “any direct or implied promises,” id. at 542–43, 18 S.Ct. 183, but finding promise to

protect suspect from threatened violence by others

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rendered confession involuntary); Welsh S. White, Confessions Induced by Broken Government Promises, 43

Duke L.J. 947, 953 (1994).

False promises may be evidence of involuntariness,

at least when paired with more coercive practices or especially vulnerable defendants as part of the totality of

the circumstances. E.g., Lynumn v. Illinois, 372 U.S.

528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (pre–

Miranda confession found involuntary based on false

promise of leniency to indigent mother with young children, combined with threats to remove her children and

to terminate welfare benefits, along with other factors).

But the Supreme Court allows police interrogators to

tell a suspect that “a cooperative attitude” would be to

his benefit. Fare v. Michael C., 442 U.S. 707, 727, 99

S.Ct. 2560, 61 L.Ed.2d 197 (1979) (reversing finding that

confession was involuntary). Supreme Court precedents

do not draw bright lines on this subject.

In assessing voluntariness, courts must weigh the

tactics and setting of the interrogation alongside any

particular vulnerabilities of the suspect. Bustamonte,

412 U.S. at 226, 93 S.Ct. 2041. Relevant factors include

the suspect’s age, intelligence, and education, as well as

his familiarity with the criminal justice system.

Withrow, 507 U.S. at 693–94, 113 S.Ct. 1745 (collecting

factors); Michael C., 442 U.S. at 725–26, 99 S.Ct. 2560

(significant criminal justice experience); Clewis v. Texas,

386 U.S. 707, 712, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967)

(limited educational attainment); Culombe v. Connecticut, 367 U.S. 568, 620, 81 S.Ct. 1860, 6 L.Ed.2d 1037

(1961) (intellectual disability); Gallegos v. Colorado, 370

U.S. 49, 53, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962) (age).

The interaction between the suspect’s vulnerabilities and the police tactics may signal coercion even in

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the absence of physical coercion or threats. The Supreme Court has made it clear that juvenile confessions

call for “special care” in evaluating voluntariness. E.g.,

Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 92 L.Ed.

224 (1948); see also J.D.B. v. North Carolina, 564 U.S.

261, 277, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011); In re

Gault, 387 U.S. 1, 45, 87 S.Ct. 1428, 18 L.Ed.2d 527

(1967); Gallegos, 370 U.S. at 54, 82 S.Ct. 1209. In juvenile cases, the law is particularly concerned with

whether a friendly adult is present for or consents to

the interrogation. In re Gault, 387 U.S. at 55–56, 87

S.Ct. 1428; Gallegos, 370 U.S. at 53–54, 82 S.Ct. 1209;

Haley, 332 U.S. at 600, 68 S.Ct. 302. Concerns about

physical exhaustion, naïveté about friendly police in the

context of an adversarial police interview, and intellectual disability also take on heightened importance for

assessing whether a juvenile’s will was overborne.2

2

We have reservations about the use of “suggestibility” as a

factor in this analysis, at least on these facts. Dassey relies heavily

on the results of a Gudjonsson Suggestibility Scale test measuring

him as more susceptible to fabrication than 95 people out of 100,

given slight prodding by questioners. A Gudjonsson test is administered by reading a short story aloud to an examinee and then

later asking leading questions about it. The more answers that

change in response to mild pressure, the more suggestible the examinee is. The administration of this test for people with intellectual disabilities has been criticized because they may have good

recall of their own lived experiences but poor recall of facts not

relevant to their lives. Paul Willner, Assessment of capacity to

participate in court proceedings: a selective critique and some recommendations, 17 Psychology, Crime & Law 117, 117 (2011). This

criticism mirrors Dassey’s own testimony that his recall was better for lived experiences. In any event, the State’s expert forcefully contested both the administration and meaning of Dassey’s

Gudjonsson test at trial. We cannot draw conclusions from these

disputed results.

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As we detail below, Dassey’s case presents different factors pointing in opposite directions. Those most

important to our analysis include: his age and intellectual ability; the physical circumstances of the interrogation; the manner and actions of the police in questioning Dassey, including bluffing about what they knew

and assuring him of the value of honesty; Dassey’s resistance or receptiveness to suggestions by interrogators; and the extent to which he provided the most incriminating information in response to open–ended,

non–leading questions.

II. The Murder, the Interrogation, and the Convictions

A. The Murder of Teresa Halbach

With the applicable law in mind, we turn to the

horrifying murder of Teresa Halbach and then the circumstances of Dassey’s confession. More detailed accounts are available in the panel, district court, and

state court opinions. See Dassey v. Dittmann, 860 F.3d

933 (7th Cir. 2017); Dassey v. Dittmann, 201 F.Supp.3d

963 (E.D. Wis. 2016); State v. Dassey, 346 Wis. 2d 278,

827 N.W.2d 928, 2013 WL 335923 (Wis. App. 2013) (per

curiam) (unpublished disposition); see also State v.

Avery, 337 Wis. 2d 351, 804 N.W.2d 216 (App. 2011) (affirming convictions of Dassey’s uncle).

In 2005, Teresa Halbach was a young photographer

with her own business based in Calumet County, Wisconsin. On October 31, her last appointment of the day

was at Avery’s Auto Salvage to photograph a van for

an advertisement. Halbach never returned from that

appointment. A few days later during a missing–

person search, her car was found at the salvage yard.

Her blood stained the car’s interior. A further search

turned up Halbach’s charred remains in a burn pit on

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the property, along with shell casings on the floor of

Steven Avery’s garage.

B. Dassey’s Early Police Interviews

Police investigators spoke with a number of

Avery’s relatives in early November, including an

hour–long interview of his sixteen–year–old nephew

Brendan Dassey, who lived close by. Dassey said he

had seen Halbach taking pictures at the salvage yard

on the afternoon of October 31, but he resisted the suggestion that she had entered Avery’s home. At that

time, he provided no other useful information.

Several months later, though, investigators received word that Dassey had been crying uncontrollably and had lost about forty pounds of weight. They

proceeded to interview him a total of three times on

February 27, 2006. In these voluntary witness interviews, it became clear that Dassey knew much more

about Teresa’s murder. (Dassey was not in custody on

February 27th. He signed and initialed a Miranda

waiver, and his mother consented, though she did not

sit in.) In those interviews, Dassey admitted that on

October 31st, he had gone over to Avery’s trailer

around 9:00 p.m. to help with a bonfire. He told the police that he had seen parts of a human body in the fire.

He also said that Avery had threatened to hurt him if

he spoke to the police. When the police asked about a

pair of bleach–stained jeans they had learned about

from another family member, Dassey admitted that he

had helped Avery clean up a spill on the garage floor

late that night. But Dassey claimed to have had nothing to do with Teresa’s death.

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C. The March 1st Interview and Confession

1. The Circumstances of the Interview

After those interviews, investigators thought Dassey had been a witness to at least the aftermath of a

terrible crime and was struggling with the horror of

what he had seen. On March 1st, the investigators

(Mark Wiegert and Tom Fassbender) obtained his

mother’s permission for another interview. They took

Dassey from his high school to a local sheriff’s department, where he was questioned without the presence of

a friendly adult. In the car the investigators gave Dassey standard Miranda warnings about his right to remain silent, his right to an attorney, and the possibility

that statements he gave could be used against him.

Dassey orally acknowledged the warnings, and he initialed and signed a written Miranda waiver form. He

and the officers chatted during the ride. The three took

a short detour to Dassey’s home to retrieve his pair of

bleach–stained jeans, which were kept as evidence.

When they arrived at the sheriff’s department, Dassey

confirmed that he understood his rights and still wanted to talk to them.

The interview took place in a so–called “soft” interview room equipped for videotaping. Dassey sat on a

couch facing two officers and a camera. Over the next

three hours, Dassey was repeatedly offered food,

drinks, restroom breaks, and opportunities to rest. At

no point in the interview did the investigators threaten

Dassey or his family. Nor did they attempt to intimidate him physically. They did not even raise their voices. Neither investigator tried to prevent Dassey from

leaving the room, nor did they use any sort of force to

compel him to answer questions. Dassey never refused

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to answer questions, never asked to have counsel or his

mother present, and never tried to stop the interview.

2. The First Hour of Questioning

One officer began by telling Dassey how he could

help the investigation, since “this information and that

information” from previous accounts needed “just a little tightening up.” Sensing that Dassey “may have

held back for whatever reasons,” the officer assured

Dassey “that Mark and I both are in your corner, we’re

on your side.” Acknowledging Dassey’s potential concern that talking to the police meant he “might get arrested and stuff like that,” the investigator urged Dassey to “tell the whole truth, don’t leave anything out.”

Talking could be in Dassey’s best interest even though

it “might make you look a little bad or make you look

like you were more involved than you wanna be,” because admitting to unfortunate facts would leave “no

doubt you’re telling the truth.” The first investigator

closed by saying that “from what I’m seeing, even if I

filled” in some holes in Dassey’s story, “I’m thinkin’

you’re all right. OK, you don’t have to worry about

things ... [W]e know what Steven [Avery] did ... we

just need to hear the whole story from you.” The other

investigator went next:

Honesty 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 .... And by you talking with us,

it’s, it’s helping you. OK? Because the honest

person is the one who’s gonna get a better deal

out of everything.

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Supp. App. 30. After Dassey nodded in agreement, the

investigator continued:

You know. Honesty is the only thing that will

set you free. Right? And we know, like Tom

said we know, we reviewed those tapes .... We

pretty much know everything that’s why we’re

.... talking to you again today. We really need

you to be honest this time with everything,

OK.... [A]s long as you be honest with us, it’s

OK. If you lie about it that’s gonna be problems. OK. Does that sound fair?

Id. Dassey again nodded and the questioning turned to

the events of October 31st.

Over the course of the next three hours, with several breaks as the investigators conferred outside the

room, Dassey told an even more disturbing and incriminating story about October 31st. In the first hour,

Dassey admitted that he received a telephone call from

Avery, went over to Avery’s garage in the six o’clock

hour, and found Teresa already dead in her car. Dassey

then said he helped Avery lower Teresa’s bound body

onto a “creeper” (used to work underneath an automobile), which he and Avery used to take her body outside

and throw her onto the already–burning bonfire.

At that point, less than an hour into the interview,

Dassey’s story pivoted dramatically. Dassey revised

his story to say that he first noticed something amiss in

the four o’clock hour. Dassey volunteered that when he

was out getting the mail, he heard a woman screaming

inside Avery’s trailer. Supp. App. 50. Dassey knocked

on Avery’s door, ostensibly to deliver a piece of mail,

and a sweaty Avery answered the door.

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Dassey said he then saw Teresa alive, naked, and

handcuffed to Avery’s bed. Dassey said he went inside

at Avery’s invitation and had a soda while Avery told

him that he had raped Teresa. Dassey said that, at

Avery’s urging, he then raped Teresa, having intercourse against her will as she was bound to the bed, and

as she protested and begged him to stop. After the

rape, Dassey reported, he then watched television with

Avery for a while. Supp. App. 55–65.

In Dassey’s telling, he next helped Avery subdue

and kill Teresa and move her to the garage. Id. at 66–

76. In response to questioning and prodding, Dassey

told a confusing story about these critical events. Dassey said that Avery stabbed Teresa with a large knife,

that her handcuffs were removed, and that she was tied

up with rope. He also said that Avery cut off some of

her hair with that large knife, that he (Dassey) cut her

throat with the same knife, and that at some point

Avery choked or punched her. All these events reportedly happened by 6:00 or 6:30 p.m.3

The details and sequence of these events changed

repeatedly, however, as investigators pressed Dassey

for more details. This portion of the interrogation provides the most support for Dassey’s claim that his confession was both involuntary and unreliable.4 For ex3

Given the damage to Teresa’s body, few of these details

could have been confirmed or contradicted by the surviving physical evidence. But what did survive elsewhere does not necessarily

vindicate Dassey. For example, Dassey contends that no handcuff

marks were found on the head–board of Steven Avery’s bed, but a

thin plastic film from a substance used in rope manufacturing was

found on the headboard.

4

This portion of Dassey’s confession also led to another

search of Steven Avery’s garage that uncovered perhaps the most

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ample, because the recovered remnants of Teresa’s

skull contained trace amounts of lead, the investigators

believed that Teresa had been shot in the head. They

were eager for Dassey to describe what “else was done

to her head” besides cutting and punching. In this exchange, Dassey did not provide the answer they were

looking for. He offered what seemed like guesses. The

investigators abandoned their vague admonitions to tell

the truth. They lost patience and blurted out:

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: Cuz I couldn’t think of it.

Fassbender: Now you remember it? (Brendan

nods “yes”) Tell us about that then.

Supp. App. 76. Dassey continued to do so over the

whole course of the March 1st interview, revising upwards the number of times Teresa was shot from twice

to three times, and then up to ten times.5 Dassey also

revised the location of the shooting, first outside the

garage, then inside Teresa’s car, then on the floor of the

garage. After this shifting exchange about the shooting, the first hour of the March 1st interview concluded

with Dassey explaining how he and Avery put Teresa’s

body on the fire, how they moved her car, and finally

powerful physical evidence of the investigation: a bullet fragment

with Teresa Halbach’s DNA on it.

5

Throughout the interview, however, Dassey resisted all

suggestions that he personally ever shot Teresa, and he described

his discomfort with guns from a young age.

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how they cleaned up the stain in Avery’s garage before

Dassey went home.

3. The Second Hour of Questioning

The investigators then took a break to confer. During the break, Dassey had the opportunity to rest and

to use the restroom. Before starting up again, Dassey

and Wiegert had this exchange, indicating that Dassey

did not understand the gravity of what he had told the

investigators:

Brendan: How long is this gonna take?

Wiegert: It shouldn’t take a whole lot longer.

Brendan: Do you think I can get [back to

school] before one twenty–nine?

Wiegert: Um, probably not.

Brendan: Oh.

Wiegert: What’s at one twenty–nine?

Brendan: Well, I have a project due in sixth

hour.

Supp. App. 102.

In the second hour of questioning, the investigators

sought to confirm details from the first. They had only

limited success. Dassey provided more confusing details about how Teresa was killed and the status of the

bonfire. But in the main, Dassey largely confirmed his

account from the first hour, especially about the details

of his sexual assault of Teresa. His story regarding

what he saw of Teresa in the fire—hands, feet, forehead, and part of a torso—also remained mostly consistent.

19a

Signaling that the investigators did not overwhelm

his will, Dassey resisted repeated suggestions by both

investigators that he and Avery used the wires and cables hanging in the garage to torture Teresa. The investigators also tested Dassey’s suggestibility. They

told him falsely that Teresa had a tattoo on her stomach

and asked if he had seen it. Here is the exchange:

Fassbender: ... did she have any scars, marks,

tattoos, stuff like that, that you can remember?

Brendan: I don’t remember any tattoos.

...

Fassbender: OK. (pause) We know that Teresa had a, a tattoo on her stomach, do you remember that?

Brendan: (shakes head “no”) uh uh

Fassbender: Do you disagree with me when I

say that?

Brendan: No but I don’t know where it was.

Fassbender: OK.

Supp. App. 150–52. In this exchange, Dassey stuck to

what he thought he knew, despite being challenged and

prodded by the investigators.

4. The Final Hour of Questioning

The investigators took another break, during which

Dassey ate a sandwich and briefly fell asleep. The investigators returned to talk about the consequences

Dassey was facing:

Fassbender: What do you think’s gonna happen? What do you think should happen right

now?

20a

Brendan: I don’t know.

Fassbender: You know obviously that we’re

police officers, OK. (Brendan nods “yes”) And

... because of what you told us, we’re gonna

have ta arrest you. Did you kinda figure that

was coming? For ... what you did we ... can’t let

you go right now. The law will not let us. And

so you’re not gonna be able to go home tonight.

All right?

Brendan: Does my mom know?

Fassbender: Your mom knows.

Supp. App. 157. After briefly discussing some logistics,

the exchange continued:

Fassbender: Did you kinda ... after telling us

what you told us you kinda figured this was

coming? (Brendan nods “yes”) Yeah? (Brendan

nods “yes”)

Brendan: Is it only for one day or?

Wiegert: We don’t know that at this time, but

let me tell ya something Brendan, you did the

right thing. OK. (Brendan nods “yes”) By being honest, you can at least sleep at night right

now ....

Fassbender: Your cooperation and help with

us is gonna work in your favor. I can’t say

what [it’s] gonna do or where [you’re] gonna

end up but [it’s] gonna work in your favor and

we appreciate your continued cooperation.

(Brendan nods “yes”) ....

21a

Id.6

Dassey’s mother Barb Janda then came into the

room to speak with Brendan about his arrest and confession. Dassey, now with his head buried in his hands,

asked his mother what would happen if Avery gave a

different version of events, such as “I never did

nothin’ ” to Teresa Halbach “or somethin’.” His mother

followed up on this point, asking whether Dassey had

done anything to Teresa:

Barb Janda: Did you? Huh?

Brendan: Not really.

Barb Janda: What do you mean not really?

Brendan: They got to my head.

Barb Janda: Huh?

Brendan: ... say anything.

Barb Janda: What do you mean by that?

(pause) What do you mean by that Brendan?

Supp. App. 157. Dassey was taken into custody after

this interview, which he now contends was involuntary

and should not have been used at his trial.

At trial, Dassey testified and denied any knowledge

of or involvement in Teresa Halbach’s murder. He did

not try to explain what he had meant by telling his

mother “not really” and “they got to my head.” According to his lawyer’s version of events, Brendan came

6

If Dassey had continued to cooperate in the case against

Steven Avery, that might well have worked in his favor. At the

2010 post–conviction hearings, Dassey’s lawyer and the prosecutor

both indicated that the State could have advocated for more lenient punishment for Dassey if he had testified against Steven

Avery. See Dkt. 19–26 at 47–48, 99–100, 158–61.

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home from school at 3:45 p.m. on October 31st and

played video games until having dinner with his brother and mother. After the others left, Dassey claimed,

he fielded a phone call from his brother’s boss and then

shortly after that a call from Avery. At “about sevenish,” Dassey claimed, he joined Avery for the bonfire,

making four or five trips around the salvage yard picking up discarded items to throw on the flames. Around

nine o’clock, Dassey helped Avery clean up a spill in his

garage, and after a phone call from his mother, Dassey

claimed, he returned home around 9:30 or 9:45 p.m. According to his trial testimony, none of the incriminating

events related in his March 1st confession ever happened.7

D. The State Courts’ Treatment of Dassey’s Confession

Before trial, Dassey moved to suppress his confession as involuntary. After briefing and a hearing, the

trial judge stated detailed findings of fact in an oral ruling. Supp. App. 168–77. The judge noted Dassey’s age

and observed that he had “an IQ level in the low average to borderline range.” The judge noted that school

records showed that Dassey was in regular–track classes but had some special education help. The judge also

7

At trial Dassey gave no explanation for his March 1st confession beyond controverted expert testimony that he was highly

suggestible and a suggestion that he had confused his own experiences on October 31st with a book he had ostensibly read “three,

four years” before called Kiss the Girls. No scenes in either the

book or the movie it inspired are remotely similar to the crimes

Dassey described on March 1st. See generally James Patterson,

Kiss the Girls (1st ed. 1995); Kiss the Girls (Paramount Pictures

1997) (fictional coast–to–coast hunt for serial killers) Also, in nearly six months after March 1st, Dassey never mentioned the book

or movie to his then–counsel.

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noted Dassey’s lack of a criminal record, the noncustodial nature of the February 27th and March 1st interviews (as the parties had stipulated), and Dassey’s Miranda waivers from both days. The judge found that

Dassey knew he could stop answering questions and

knew he could leave the room at any time on February

27th, and that he repeatedly indicated his continuing

interest in speaking with the police on March 1st. The

judge found that both Dassey and his mother consented

to the interview on March 1st. The judge also quoted

several of the investigators’ admonitions to tell the

truth, including “honesty here is the thing that’s going

to help you,” and “honesty is the only thing that will set

you free,” upon which Dassey relies so heavily now.

Throughout the interview, the judge found, the investigators had used “a normal speaking tone with no

raised voices, no hectoring, or threats of any kind.”

“Nothing on the video–tape visually depicts Brendan

Dassey as being agitated, upset, frightened, or intimidated by the questions of either investigator,” and he

“displayed no difficulty in understanding the questions

asked of him,” the judge found. Though at times

“prodded to be truthful,” at “no time did he ask to stop

the interview or request that his mother or a lawyer be

present.” The admonitions, the judge found, amounted

to “nothing more than a reminder to Brendan Dassey

that he had a moral duty to tell the truth.” The judge

also found that Dassey was not coerced by the “interviewers occasionally pretending to know more than

they did” because that “did not interfere with [his]

power to make rational choices.” And finally, the judge

found that “[n]o frank promises of leniency were made

by the ... interviewers to Brendan Dassey,” and that he

was in fact flatly told “we can’t make any promises.”

24a

On the basis of these findings of fact, “given Brendan Dassey’s relevant personal characteristics” and applying “a totality of the circumstances test, which I’m

using here,” the judge found that Dassey’s admissions

in the March 1st interview were voluntary statements

and denied Dassey’s motion to suppress. Supp. App. 177.

The March 1st confession was the most incriminating evidence at trial. The jury found Dassey guilty on

all charges: participating in rape and murder, and mutilation of a corpse. In August 2007, Dassey was sentenced to life in prison. Dassey filed detailed motions

for a new trial in 2009, and the same trial court held

five days of hearings on those motions in January 2010,

probing Dassey’s claims that his attorneys rendered

ineffective assistance.

A three–judge panel of the Wisconsin Court of Appeals affirmed Dassey’s convictions, finding that his

confession was voluntary and any ineffective assistance

was not prejudicial. State v. Dassey, 346 Wis. 2d 278,

827 N.W.2d 928, 2013 WL 335923 (Wis. App. 2013). The

Court of Appeals used the trial court’s findings of fact

to summarize the circumstances of the March 1st confession and Dassey’s claim that it was involuntary. The

court then cited the legal standard for such claims—the

totality of the circumstances—as applied by leading

Wisconsin state cases. These state cases, particularly

In re Jerrell C.J., 283 Wis.2d 145, 699 N.W.2d 110

(2005), cited and discussed several of the leading precedents on voluntariness from the United States Supreme Court. The Court of Appeals cited Jerrell C.J.

for the principle that a voluntariness “analysis involves

a balancing of the defendant’s personal characteristics

against the police pressures used to induce the statements.” Wisconsin law uses a clearly erroneous stand-

25a

ard for appellate review of trial court findings of voluntariness.

After summarizing the trial court’s findings, the

Court of Appeals concluded:

¶7 The court’s findings are not clearly erroneous. Based on those findings, we also conclude

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 deceptive tactic

like exaggerating strength of evidence against

suspect does not necessarily make confession

involuntary but instead is factor to consider in

totality of circumstances). The truth of the

confession remained for the jury to determine.

The court went on to reject Dassey’s claims that his

pre–trial and trial counsel provided ineffective assistance. The Wisconsin Supreme Court denied Dassey’s

petition for review. Dassey did not file a petition for

certiorari in the United States Supreme Court.

E. Federal Habeas Corpus Review

Dassey filed a federal habeas corpus petition in the

Eastern District of Wisconsin in 2014. In a detailed

opinion, the district court granted habeas relief, finding

that false promises of leniency were indeed made to

Dassey and that his March 1st confession was not voluntary. Dassey, 201 F.Supp.3d 963. A divided panel of

26a

our court affirmed. Dassey, 860 F.3d 933. We granted

the State’s petition to rehear the case en banc and now

reverse with instructions to dismiss Dassey’s habeas

petition.

III. Applying the AEDPA Standard

A. Voluntariness Under § 2254(d)(1)

The state court decision that Dassey confessed voluntarily was not an unreasonable application of Supreme Court precedent. The state appellate court

drew on fairly detailed findings of fact, which were not

clearly erroneous, and provided a terse but sufficient

explanation for why the trial court’s decision was a reasonable application of the broad totality–of–the–

circumstances test.

1. Factors Pointing in Opposite Directions

A number of relevant factors, we recognize, tend to

support Dassey’s claims about the March 1st confession. He was young. He was alone with the police. He

was somewhat limited intellectually. The officers’

questioning included general assurances of leniency if

he told the truth, and Dassey may have believed they

promised more than they did. At times it appeared as

though Dassey simply did not grasp the gravity of his

confession—after confessing to rape and murder, he

asked the officers if he would be back at school that afternoon in time to turn in a project. Portions of the

questioning also included leading and suggestive questions, and throughout the interrogation Dassey faced

follow–up inquiries when the investigators were not

satisfied with what he had told them, leading him at

times to seem to guess. In addition, the confusion and

contradictions in Dassey’s account of the crimes of October 31st lend support to the view that his confession

27a

was the product of suggestions and/or a desire to tell

the police what they wanted to hear.

At the same time, many other factors support the

finding that Dassey’s confession was indeed voluntary.

Start with the circumstances of the interrogation. As

stipulated by both sides, Dassey was not in custody

when he admitted participating in the crimes of October 31st. He went with the officers voluntarily and

with his mother’s knowledge and consent. He was given Miranda warnings and understood them sufficiently. The interrogation was conducted during school

hours and in a comfortable setting. Dassey showed no

signs of physical distress. He had access to food,

drinks, and restroom breaks. The interrogation was

not particularly lengthy, especially with the breaks that

were taken every hour.

Dassey was not subject to physical coercion or any

sort of threats at all. Given the history of coercive interrogation techniques from which modern constitutional standards for confessions emerged, this is important. The investigators stayed calm and never even

raised their voices. As the Wisconsin courts found,

there is no sign that Dassey was intimidated.

Turning to the techniques used in the interrogation, the investigators told Dassey many times that

they already knew what had happened when in fact

they did not. Such deception is a common interview

technique. To our knowledge, it has not led courts (and

certainly not the Supreme Court) to find that a subject’s incriminating answers were involuntary. See

Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22

L.Ed.2d 684 (1969) (fabricating a co–conspirator’s confession is relevant, but “insufficient in our view to make

this otherwise voluntary confession inadmissible”). Al-

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so, most of the incriminating details in Dassey’s confession were not suggested by the questioners. He volunteered them in response to open–ended questions.

When Dassey’s story did not make sense, seemed

incomplete, or seemed to conflict with other evidence,

the questioners pressed Dassey with further questions.

Those techniques are not coercive. Dassey responded

to such questioning by modifying his story on some

points, but he stuck to his story on others. Those passages support the view that he was not being pushed to

provide a false story against his will. For example,

Dassey resisted repeated suggestions that he had participated in shooting Teresa. He denied repeated suggestions that he and Avery had used wires and cables

in the garage to restrain or harm her. In one telling instance, the questioners tested Dassey by falsely telling

him that Teresa had a tattoo on her stomach and asking

him if he had seen it. He told them no. When the questioners pushed harder, he was not willing to say he

knew they were wrong, but he stuck to his recollection

that he had not seen a tattoo.

Under AEDPA, the essential point here is that the

totality–of–the–circumstances test gives courts considerable room for judgment in cases like this one, where

the factors point in both directions. Given the many

relevant facts and the substantial weight of factors

supporting a finding that Dassey’s confession was voluntary, the state court’s decision was not an unreasonable application of Supreme Court precedent. This

view is similar to Yarborough v. Alvarado, 541 U.S.

652, 664–65, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004),

where the Supreme Court applied AEDPA to a state

court finding that a seventeen–year–old suspect had

not been in custody when he confessed to murder. The

custody question was governed by a similarly general

29a

totality–of–the–circumstances standard. The Supreme

Court summarized the array of factors pointing in opposite directions, in custody or not in custody. Emphasizing that the more general the rule, the more leeway

courts have in reaching outcomes in case–by–case determinations, the Supreme Court found that the state

court finding was not an unreasonable application of

binding precedent: “These differing indications lead us

to hold that the state court’s application of our custody

standard was reasonable. The Court of Appeals was

nowhere close to the mark when it concluded otherwise.” Id. at 665, 124 S.Ct. 2140.

2. The Terse State Court Opinion

Dassey criticizes the Wisconsin appellate court’s

decision for having been too terse, addressing the confession in just two pivotal paragraphs. The relative

brevity of that part of the opinion is not a reason for

granting habeas relief. Given the volume of words that

federal judges have devoted to this case, one might assume that the totality–of–the–circumstances test requires courts to detail at length the weight they have

assigned to all factors and how the presence of one factor affects the weight or relevance of other factors.

That assumption would be incorrect. The Supreme

Court itself has issued terse final determinations on

voluntariness after a recitation of relevant facts. See

Greenwald v. Wisconsin, 390 U.S. 519, 519–21, 88 S.Ct.

1152, 20 L.Ed.2d 77 (1968) (per curiam); Davis v. North

Carolina, 384 U.S. 737, 752, 86 S.Ct. 1761, 16 L.Ed.2d

895 (1966). It has ruled on voluntariness by simply

adopting the reasoning of other courts. Boulden v.

Holman, 394 U.S. 478, 480–81, 89 S.Ct. 1138, 22

L.Ed.2d 433 (1969). Section 2254(d)(1) does not authorize federal courts “to impose mandatory opinion–

30a

writing standards on state courts.” Johnson v. Williams, 568 U.S. 289, 300, 133 S.Ct. 1088, 185 L.Ed.2d

105 (2013). State court decisions receive significant

deference even if they provide no reasons at all. Harrington v. Richter, 562 U.S. 86, 98–99, 131 S.Ct. 770, 178

L.Ed.2d 624 (2011); Whatley v. Zatecky, 833 F.3d 762,

774 (7th Cir. 2016). In this case, the state appellate

court endorsed detailed findings by the trial court that

provide substantial support for the finding that Dassey’s confession was voluntary in the eyes of the law.

3. Juveniles and Special Care

The requirement that courts take “special care” in

analyzing juvenile confessions does not call for habeas

relief here. The state appellate court met the requirements for analyzing juvenile confessions by considering

Dassey’s age, his intellectual capacity, and the voluntary absence of his mother during the interrogation.

The state court noted that the officers read Dassey his

Miranda rights and that Dassey later remembered his

rights and agreed to talk anyway. The court assessed

coercion in relation to Dassey’s vulnerabilities, including his “age, intellectual limitations and high suggestibility.” The court did not limit its inquiry to only

whether the most abusive interrogation techniques

were used. The court examined the tones and volumes

of the investigators’ voices, finding that the officers

“used normal speaking tones, with no hectoring, threats

or promises of leniency,” though they did prod Dassey

to be honest and sought to establish a rapport with him.

The court even considered Dassey’s physical comfort

by noting he sat on a sofa and was offered food, drink,

and restroom breaks.

31a

4. Precedent

Dassey simply has not pointed to Supreme Court

precedent that mandates relief under these circumstances. Even in cases where deferential review under

AEDPA does not apply, the Supreme Court has not

found a confession involuntary in circumstances like

Dassey’s March 1st confession.

Consider Boulden v. Holman, 394 U.S. 478, 480–81,

89 S.Ct. 1138, 22 L.Ed.2d 433 (1969). The defendant

there was eighteen years old, had an I.Q. of 83, suffered

from an anxiety complex, and was “susceptible to coercion.” Boulden v. Holman, 385 F.2d 102, 104, 105 (5th

Cir. 1967). He was interrogated for less than three

hours after being told he had the “right not to make a

statement, and that any statement made might be used

against him.” Id. at 104. He was “treated courteously

and allowed to eat, smoke and to use [the] toilet facilities.” Id. at 105. Though two years older than Dassey,

Boulden was apparently still dependent on his parents.

Id. Other facts of his interrogation were more troubling than those in this case. Boulden was interrogated

from 10 p.m. until after midnight after several hours in

custody. Id. at 104. Police had denied Boulden’s father

access to him, and after Boulden asked “whether he

was supposed to have a lawyer,” the police said “he

would not get one until he talked.” Id. The Supreme

Court “determined that although the issue is a relatively close one, the conclusion ... was justified” that

Boulden had confessed voluntarily. 394 U.S. at 480–81,

89 S.Ct. 1138.

In Fare v. Michael C., 442 U.S. 707, 727, 99 S.Ct.

2560, 61 L.Ed.2d 197 (1979), the Court again ruled a juvenile confession was voluntary. Like Dassey, Michael

C. was sixteen years old. He claimed that the police

32a

made promises and threats during the interrogation “in

the hope of obtaining leniency for his cooperative attitude.” Id. Michael C. indicated that his pleas to stop

the interrogation were ignored. He also claimed he

feared police coercion and pointed out that he “wept

during the interrogation.” Id. Despite these assertions, the Court determined that Michael C.’s claims of

coercion were “without merit.” Id.

Unlike Dassey, Michael C. apparently did not have

a low average to borderline I.Q., and Michael C. did

have significant prior experience with the criminal justice system. See id. at 726, 99 S.Ct. 2560. Though the

presence of those factors may have provided room for

Dassey to argue on direct appeal that Michael C.

should be distinguished, they do not show that the Wisconsin courts’ decision here was unreasonable within

the meaning of § 2254(d)(1). As in Michael C., the police here indicated “that a cooperative attitude would

be to [the suspect’s] benefit, but their remarks in this

regard were far from threatening or coercive.” Id. at

727, 99 S.Ct. 2560.

In reviewing these cases, we remember the Supreme Court’s admonition that determining whether a

confession is voluntary “requires more than a mere color–matching of cases.” Reck v. Pate, 367 U.S. 433, 442,

81 S.Ct. 1541, 6 L.Ed.2d 948 (1961). But like the Court,

we find these comparisons helpful after “careful evaluation of all the circumstances of the interrogation.”

Mincey, 437 U.S. at 401, 98 S.Ct. 2408; see Reck, 367

U.S. at 442, 81 S.Ct. 1541 (finding comparison to analogous cases “not inappropriate” when determining voluntariness). AEDPA “would be undermined if habeas

courts introduced rules not clearly established under

the guise of extensions to existing law.” Alvarado, 541

U.S. at 666, 124 S.Ct. 2140. To be sure, this line be-

33a

tween application and extension of existing law blurs

“when new factual permutations arise.” Id. The cases

show, however, that the Supreme Court has considered

and rejected claims similar to Dassey’s, and Supreme

Court cases do not require relief here. The Wisconsin

courts did not apply the law unreasonably in finding

that Dassey’s confession was voluntary.

B. Factual Findings Under § 2254(d)(2)

Dassey also argues that he is entitled to relief under § 2254(d)(2) on the ground that the state courts

made an unreasonable finding of fact: that the questioners made no false promises of leniency. Affirming

the trial court, which found “no frank promises of leniency were made,” the Wisconsin Court of Appeals determined that the investigators’ statements “merely

encourage[d] honesty and [did] not promise leniency.”

Dassey’s argument that this finding was unreasonable

focuses on two things: his intellectual limitations and

the spots in the March 1st interrogation where he

claims the investigators implied that he would not even

be arrested if he told the truth. We reject this argument.

Because the Wisconsin appellate court accepted the

trial court’s findings of fact, we review the trial court’s

factual determinations directly. See Rice v. Collins,

546 U.S. 333, 339, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)

(indicating that AEDPA review and deference in such a

situation should extend to state trial court findings).

The trial court here highlighted the key points for both

sides, including the warning that the questioners could

not make promises (which supports the State here) and

the problematic assurance that honesty was the only

thing that would set Dassey free (which helps Dassey’s

claim, especially in light of his limited intellect).

34a

Whether we treat the state court’s decision on this

point as a finding of fact or a conclusion of law, we find

nothing unreasonable about it.

As noted above, the Supreme Court has not treated

general assurances of leniency in exchange for cooperation or confession as coercive. To the extent precedents from other courts might be helpful in understanding a state court’s factual findings, the cases signal that

such general assurances are not legally relevant facts

for determining whether a suspect’s will was overborne

and a confession was involuntary. See, e.g., United

States v. Villalpando, 588 F.3d 1124, 1129 (7th Cir.

2009); see also United States v. Binford, 818 F.3d 261,

271–72 (6th Cir. 2016); United States v. Corbett, 750

F.3d 245, 253 (2d Cir. 2014); United States v. Jackson,

608 F.3d 100, 103 (1st Cir. 2010); United States v. Kontny, 238 F.3d 815, 818 (7th Cir. 2001); United States v.

Rutledge, 900 F.2d 1127, 1130 (7th Cir. 1990) (“The policeman is not a fiduciary of the suspect. The police are

allowed to play on a suspect’s ignorance, his anxieties,

his fears, and his uncertainties; they just are not allowed to magnify those fears, uncertainties, and so

forth to the point where rational decision becomes impossible.”). The state appellate court should be understood as having said that the investigators made no legally relevant false promises to Dassey.

The district court, the panel majority, and our dissenting colleagues have viewed the interrogation differently, finding psychological coercion through a form

of operant conditioning, where different investigative

tactics combined to convince Dassey that the police had

agreed to end the interrogation and to grant him leniency in exchange for confessing. Dassey, 860 F.3d at

963, 974. As the panel explained, in its view of the interrogation, the investigators offered Dassey multiple

35a

assurances and “sounded the theme of ‘truth leads to

freedom’ ” culminating in the “direct promise, ‘honesty

is the only thing that will set you free.’ ” Id.

The state courts did not view these tactics the

same way. Their view was not unreasonable. The state

courts saw and read, as we have, exactly what the

questioners told and asked Dassey in the interview and

how he responded. AEDPA leaves room for reasonable

disagreement between state and federal courts. Disagreement on a particular judgment call does not show

that the state court found the facts unreasonably. Collins, 546 U.S. at 341–42, 126 S.Ct. 969.

In denying Dassey’s suppression motion, the state

trial court weighed the same statements that concerned

the district court and the panel. The judge quoted four

separate instances where investigators prodded Dassey

by stating that honesty would help him, and the judge

noted that these were “but a few example[s] of admonitions to be honest.” The state court also recounted four

quotations and other “similar statements” where investigators assured Dassey that they were behind him and

in his corner. It viewed these statements as an “attempt to achieve a rapport” rather than “frank promises of leniency.” These findings are reasonable and consistent with the evidence and the relevant law. Habeas

review does not permit us to “use a set of debatable inferences to set aside the conclusion reached by the

state court.” Collins, 546 U.S. at 342, 126 S.Ct. 969.

C. Police Best Practices and the Law

The concerns expressed by our dissenting colleagues and the district court about the potential coercive effects of the police tactics here are understandable. Critics of Dassey’s interrogation see evidence of

fabrication through the confession’s inconsistencies and

36a

lack of solid corroborating physical evidence. Some of

the confession’s inconsistencies are startling, particularly Dassey’s shifting answers on the location of the

shooting (outside the garage, on the garage floor, and in

the car inside the garage), and his failure to recall consistently the order of attacks in the bedroom (stabbing,

hair–cutting, and throat–slicing). Also, during the dialogue about Teresa’s shooting, the investigators prodded Dassey and injected some critical facts into the discussion that corroborated evidence they already knew.

The state courts did not address these factual inconsistencies or the alleged lack of corroborating evidence, though it is not clear how they should have approached the question, if at all. United States Supreme

Court precedent on this point is not unequivocal. In

Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4

L.Ed.2d 242 (1960), the Court considered the “unreliability of the confession” in determining that a mentally

ill defendant’s confession was not voluntary. Id. at 207,

80 S.Ct. 274. The very next year the Court indicated

that “the reliability of a confession has nothing to do

with its voluntariness” because extrinsic evidence that

a confession is true can confound the inquiry into

“whether a defendant’s will has been overborne.”

Jackson v. Denno, 378 U.S. 368, 384–85, 84 S.Ct. 1774,

12 L.Ed.2d 908 (1964), citing Rogers v. Richmond, 365

U.S. 534, 545, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). The

Court later seemed to signal another direction, writing

in Colorado v. Connelly that whether a confession is

reliable, as distinct from voluntary, “is a matter to be

governed by the evidentiary laws of the forum ... and

not by the Due Process Clause of the Fourteenth

Amendment.” 479 U.S. 157, 167, 107 S.Ct. 515, 93

L.Ed.2d 473 (1986).

37a

Analysis of a confession’s reliability as part of the

totality of the circumstances may survive the instruction in Connelly, but it is not unreasonable to interpret

Connelly as foreclosing—or at least not requiring—this

line of inquiry before trial. We cannot fault the Wisconsin courts for failing to measure the inconsistency of

Dassey’s confession in this context. In addition, the

contradictions as to some details do not necessarily undermine the reliability of the core incriminating admissions. See Dassey, 860 F.3d at 993–94 (Hamilton, J.,

dissenting).

The concerns about reliability echo the opinions of

scholars who believe that certain interrogation tactics

tend to produce false confessions. Some police departments and experts have acknowledged this criticism

and have changed their interrogation practices in response. We must note, though, that some of the interrogation tactics used in this case—like the repeated

challenges to explain details that seem implausible—

reflect practices advocated by such reformers. See,

e.g., Saul Kassin et al., Interviewing Suspects: Practice,

Science, and Future Directions, 15 Legal & Criminological Psychology 39, 47 (2010) (describing as “non–

coercive” the practice of investigators “challeng[ing]

suspects’ accounts, often by pointing out contradictions

and inconsistencies”); Kassin, The Psychology of Confessions, 2008 Annual Rev. of Law & Soc. Sciences 193,

208 (favoring interrogation technique where investigators “address discrepancies that may appear in the suspect’s narrative account” to determine if the suspect is

fabricating).

These debates over interrogation techniques have

not resulted in controlling Supreme Court precedent

condemning the techniques used with Dassey. Absent

a clear declaration from the Court, we may not create

38a

new constitutional restraints on habeas review. See

Kernan v. Cuero, 583 U.S. ––––, 138 S.Ct. 4, 9, 199

L.Ed.2d 236 (2017) (circuit precedent does not satisfy

§ 2254(d)(1), “[n]or, of course, do state–court decisions,

treatises, or law review articles”).8

D. Ineffective Assistance of Counsel

Finally, Dassey has also pursued his separate claim

that his original lawyer provided ineffective assistance

of counsel on the theory that the lawyer was operating

under an actual conflict of interest prohibited by

Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64

L.Ed.2d 333 (1980). On this point the state and federal

8

Judge Rovner’s dissent cites studies of exonerated defendants showing that false confessions are more common among juveniles and mentally ill or intellectually deficient suspects. See post

at 332–34; Dassey, 860 F.3d at 952–53 (panel majority). False confessions are a real phenomenon, 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, as might be

inferred by looking at studies of only demonstrably wrong convictions. The more relevant fraction uses as the denominator the

number of all confessions. That number is not easy to estimate,

but we can estimate a conservative lower boundary for the number of confessions to violent felonies. Bureau of Justice Statistics

reports on Felony Defendants in Large Urban Counties tally violent felony convictions by guilty plea (i.e., by confessions of guilt)

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 dissent’s statistics report 227 demonstrably false

confessions from 1989 to 2016. Post at 332. From the BJS reports,

we can estimate that over that period, in just those 75 largest

counties, there were more than 1.5 million guilty pleas to violent

felonies. The relevant fraction may thus be estimated conservatively as 227/1,500,000. For every one demonstrably false confession over those years, there were more than 6,500 guilty pleas to

violent felonies in just those counties.

39a

courts have agreed. The Wisconsin appellate court rejected this claim. The district court also considered this

claim carefully and rejected it, citing the limits placed

on Sullivan claims by Mickens v. Taylor, 535 U.S. 162,

175, 176, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Dassey, 201 F.Supp.3d at 989.9 We agree for substantially

the reasons set forth by the district court. Id. at 987–

93. In this case there was no actual conflict of interest

and no multiple or concurrent representations that

could have resulted in an actual conflict of interest.

Conclusion

Given the state courts’ reasonable findings of fact

and the absence of clearly established Supreme Court

precedent that compels relief for Dassey, the district

court’s grant of habeas relief is REVERSED. The case

is REMANDED to the district court with instructions

to dismiss the petition.

9

The panel majority did not reach the issue. 860 F.3d at 983.

40a

Wood, Chief Judge, and Rovner and Williams, Circuit

Judges, dissenting.

Psychological coercion, questions to which the police furnished the answers, and ghoulish games of “20

Questions,” in which Brendan Dassey guessed over and

over again before he landed on the “correct” story (i.e.,

the one the police wanted), led to the “confession” that

furnished the only serious evidence supporting his

murder conviction in the Wisconsin courts. Turning a

blind eye to these glaring faults, the en banc majority

has decided to deny Dassey’s petition for a writ of habeas corpus. They justify this travesty of justice as

something compelled by the Antiterrorism and Effective Death Penalty Act (AEDPA). If the writ, as limited by AEDPA, were nothing more than a dead letter,

perhaps they would be correct. But it is not. Instead,

as the Supreme Court wrote in Harrington v. Richter,

562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011),

“[t]he writ of habeas corpus stands as a safeguard

against imprisonment of those held in violation of the

law.” Id. at 91, 131 S.Ct. 770. It is, the Court went on

to say, “a guard against extreme malfunctions in the

state criminal justice systems.” Id. at 102, 131 S.Ct. 770

(citation and internal quotation marks omitted).

As the district court and the panel majority recognized, we have before us just such an extreme malfunction. Dassey at the relevant time was 16 years old and

had an IQ in the low 80s. His confession was coerced,

and thus it should not have been admitted into evidence. And even if we were to overlook the coercion,

the confession is so riddled with input from the police

that its use violates due process. Dassey will spend the

rest of his life in prison because of the injustice this

court has decided to leave unredressed. I respectfully

dissent.

41a

I

As the Wisconsin Court of Appeals correctly noted,

the question whether a confession is voluntary (i.e., not

coerced) is assessed in light of the totality of the circumstances. The age and sophistication of the person

being questioned are critical factors. When the suspect

is a minor, courts must review the confession and record with “special care.” J.D.B. v. North Carolina, 564

U.S. 261, 280–81, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011);

In re Gault, 387 U.S. 1, 45, 87 S.Ct. 1428, 18 L.Ed.2d

527 (1967); Gallegos v. Colorado, 370 U.S. 49, 53–55, 82

S.Ct. 1209, 8 L.Ed.2d 325 (1962); Haley v. Ohio, 332

U.S. 596, 599, 68 S.Ct. 302, 92 L.Ed. 224 (1948). Courts

also must take the suspect’s intellectual capacity into

account. Culombe v. Connecticut, 367 U.S. 568, 620,

625, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (opinion of

Frankfurter, J., joined by Stewart, J.); 639 (Douglas, J.,

joined by Black, J., concurring); 641–42 (Brennan, J.,

joined by Warren, C.J., and Black, J., concurring). Dassey, as the majority concedes, was a mentally limited

16–year–old. It was thus incumbent on the state courts

to evaluate his “confession” in light of those traits.

The Wisconsin courts failed to take this essential

step. When asked at oral argument where one might

find evidence that the state appellate court took the required special care, counsel for the state came up dry.

All counsel could do was to point out a brief mention in

the state court’s opinion of Dassey’s age and mental capabilities. But so what? The Supreme Court has never

said or implied that the totality of the circumstances

are beside the point as long as the state court simply

jots down a fact without a hint about if or how that fact

influenced the outcome. There is nothing “special” (or

even meaningful) about a naked word on a page. The

reader has no idea whether the state court mentioned

42a

the word meaning to indicate that it found the factor

irrelevant (which would have been inconsistent with

the clear Supreme Court precedent listed above), or

exculpatory, or damning. Notably, even though the

Wisconsin Court of Appeals gave a nod to the totality

test, it made no mention of the special–care standard

for juvenile confessions.

To be sure, Harrington v. Richter, 562 U.S. 86, 131

S.Ct. 770, 178 L.Ed.2d 624 (2011), holds generally that

federal courts may not draw any dispositive conclusions

from a state court’s silence. But by the same token, the

state court’s silence cannot be leveraged into any assurance that the court went the extra mile required by

the U.S. Supreme Court and gave Dassey’s age and

limited mental ability particularized care. The majority’s finding to the contrary has no support in the record. Worse, the majority writes off in a footnote Dassey’s extreme suggestibility by casting doubt on the

applicability of a formal test (Gudjonsson). Ante at 305

n.2. As the painstaking review of the record reflected

in Judge Rovner’s panel opinion reveals, even a lay–

person could see readily that Dassey yielded to any

suggestion the person in authority made. 860 F.3d 933

(7th Cir. 2017) (Dassey I). More generally, no court is

entitled to pick and choose which evidence to consider

when evaluating the totality of the circumstances.

Clearly established U.S. Supreme Court decisions compelled the Wisconsin court to pay special attention to

Dassey’s age and intellectual abilities, including his

high level of suggestibility. Its failure to do so is one

reason why it erroneously concluded that Dassey’s

“confession” was not coerced.

If the Wisconsin Court of Appeals had done what it

should have, it could not reasonably have concluded

that Dassey’s confession was either voluntary or relia-

43a

ble (both of which are required for the use of a confession to be consistent with due process). Nevertheless,

first the state and now the en banc majority have culled

a sentence here and there and have attempted to craft

a coherent confession from them. The video recording

of the police interrogation of Dassey, however, tells another story—one that is diametrically opposed to the

state’s tidy and selective summary. Among the many

red flags are the following:

•

Dassey’s answers to questions frequently

changed at the detectives’ prodding.

•

The officers laid a trail of crumbs (indeed, large

sign–posts) to the confession they sought.

•

Whenever Dassey went off–course, the investigators would shepherd him back in the desired direction—at times with the use of fatherly assurances and gestures, and frequently by

questioning his honesty.

•

On both February 27 and March 1 the detectives misleadingly conveyed to Dassey, whose

ability to think abstractly was minimal, that his

“honesty” was the “only thing that will set

[him] free.”

•

Through subsequent questioning it became

clear that “honesty” meant “what the investigators wanted to hear.”

Dassey’s age and mental limitations made him particularly susceptible to this psychologically manipulative interrogation. Many of the officers’ tactics appear

to be drawn from the “Reid Technique,” which was for

some time the most widely used interrogation protocol

in the country. Miriam S. Gohara, A Lie for a Lie:

False Confessions and the Case for Reconsidering the

44a

Legality of Deceptive Interrogation Techniques, 33

FORDHAM URB. L.J. 791, 808 (2006). The technique

heavily relies on false evidence ploys and other forms of

deceit. Id. at 809. It follows a nine–step approach:

[A]n interrogator confronts the suspect with assertions of guilt (Step 1), then develops “themes” that psychologically justify or excuse the crime (Step 2), interrupts all efforts at denial (Step 3), overcomes the suspect’s factual, moral, and emotional objections (Step 4),

ensures that the passive suspect does not withdraw

(Step 5), shows sympathy and understanding and urges

the suspect to cooperate (Step 6), offers a face–saving

alternative construal of the alleged guilty act (Step 7),

gets the suspect to recount the details of his or her

crime (Step 8), and converts the latter statement into a

full written confession (Step 9).

Saul M. Kassin, On the Psychology of Confessions:

Does Innocence Put Innocents at Risk?, 60 AM. PSYCHOLOGIST 215, 220 (2005); see Edwin D. Driver,

Confessions and the Social Psychology of Coercion, 82

HARV. L. REV. 42, 51–55 (1968) (explaining the social

psychological impact of the Reid tactics). Investigators

are encouraged to start by accusing the suspect while

emphasizing the importance of telling the truth.

FRED E. INBAU ET AL., CRIMINAL INTERROGATION AND CONFESSIONS 213 (4th ed. 2001).

They learn ways to build false empathy with suspects,

such as shifting the moral blame for the offense to another person or expressing understanding for the suspect’s actions. Id. at 213, 241–42. Investigators are encouraged to sit physically near the suspect, maintain

“soft and warm” eye contact, and speak sincerely. Id.

at 214, 349. When a suspect makes an admission implying guilt, investigators are directed to make statements

of reinforcement. Id. at 366. The technique builds in

45a

confirmation bias; the instructions assure investigators

that while an innocent suspect will stay resolute in her

denials, a guilty person will submit to the “theme” the

investigator presents. Id. at 213; see Christian A.

Meissner & Melissa B. Russano, The Psychology of Interrogations and False Confessions: Research and

Recommendations, 1 CANADIAN J. POLICE & SECURITY SERVS. 53, 56–57 (2003).

Courts have long expressed concern about approaches such as the Reid Technique that rely on psychological coercion. Just four years after the first edition of the manual was published, INBAU ET AL., supra, at ix, the Supreme Court in Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), “repeatedly cited and implicitly criticized” the Reid approach. Gohara, supra, at 808 n.93; Miranda, 384 U.S.

at 457, 86 S.Ct. 1602 (“To be sure, this is not physical

intimidation, but it is equally destructive of human dignity.”). Miranda commented that the Court for decades had “recognized that coercion can be mental as

well as physical, and that the blood of the accused is not

the only hallmark of an unconstitutional inquisition.”

Id. at 448, 86 S.Ct. 1602 (quoting Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 4 L.Ed.2d 242

(1960)). Nothing in that respect has changed: the Court

continues regularly to hold that psychological coercion

can render a confession involuntary. Arizona v. Fulminante, 499 U.S. 279, 287–88, 111 S.Ct. 1246, 113

L.Ed.2d 302 (1991); Miller v. Fenton, 474 U.S. 104, 109,

106 S.Ct. 445, 88 L.Ed.2d 405 (1985); Schneckloth v.

Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36

L.Ed.2d 854 (1973).

Following the Supreme Court’s guidance, we too

have repeatedly recognized that “psychological coercion alone can result in an involuntary confession ....”

46a

United States v. Lehman, 468 F.2d 93, 100 (7th Cir.

1972) (conceding that “subtle psychological ploys” can

render a confession involuntary); Etherly v. Davis, 619

F.3d 654, 663 (7th Cir. 2010) (considering possible psychological coercion as part of the totality test, while

noting the need to distinguish between coercion, on the

one hand, and encouragement to tell the truth, on the

other); United States v. Villalpando, 588 F.3d 1124,

1128 (7th Cir. 2009) (“[A] false promise of leniency may

render a statement involuntary ....”); United States v.

Dillon, 150 F.3d 754, 757 (7th Cir. 1998) (“A confession

is voluntary if, in light of the totality of the circumstances, the confession is the product of a rational 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.”);

Burns v. Reed, 44 F.3d 524, 527 (7th Cir. 1995) (describing the “body of due process case law, which generally

proscribes the physical or psychological coercion of confessions” as “well–established, albeit heavily fact–

dependent”). Outside the courtroom, our nation has

long acknowledged through its international commitments that mental mistreatment can be just as bad as

its physical counterpart. Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or

Punishment art. 1, Dec. 10, 1984, 1465 U.N.T.S. 85 (defining torture to encompass physical and mental pain

and suffering).

The majority opinion downplays this reality by refusing to acknowledge anything more than mental exhaustion and false promises. But far worse than that

was going on. Dassey’s investigators refused to leave

him alone until he gave them an “honest” answer—

where “honest” meant the answer that the officers

wanted to hear. One aspect, though by no means the

47a

only one, of the coercion was the false promise that

“honesty” would “set him free.” But there was so much

more. A brief review of what went on shows that these

tactics fell decisively on the “coercion” side of the line.

The majority finds some significance in the notion

that the detectives’ tactics were not per se coercive, but

that is a red herring. These cases cannot be assessed

based on one sentence, or one restroom break, or the

comfort (or lack thereof) of one room. The Supreme

Court has instructed that the voluntariness inquiry requires a full consideration of the compounding influence

of the police techniques “as applied to this suspect.”

Miller, 474 U.S. at 116, 106 S.Ct. 445. Many of the factors the majority cites as evidence leaning in favor of a

finding of voluntariness—the soft interview room, offers of food and drink, normal speaking tones—viewed

in the context of the types of questions and answers the

investigators were demanding and Dassey’s conceded

intellectual disabilities, were coercive. Psychological

literature makes this clear. See Saul M. Kassin, The

Psychology of Confession Evidence, 52 AM. PSYCHOLOGIST 221, 223–24 (1997) (criticizing the Reid

Technique’s maximization methods, or scare tactics,

such as the false evidence ploy, in addition to its minimization methods, which “impl[y] an offer of leniency,”

where police lull a suspect into a “false sense of security” by expressing sympathy, blaming an accomplice,

and underplaying the gravity of the situation); see also

Meissner & Russano, supra, at 57–60 (discussing the

“coercive” nature of the Reid interrogation techniques

and particular concerns for minors and suspects with

low intelligence).

The state and majority brush aside even the possibility of psychological coercion as applied to Dassey.

They claim that Dassey’s March 1 confession revealed

48a

certain “critical” details that were corroborated by independent evidence, some of which law enforcement

never publicly disclosed. I have several responses to

that argument. First, it rests on the false idea that if a

confession is “accurate,” that indicates that it was not

coerced. See Conner v. McBride, 375 F.3d 643, 652–53

(7th Cir. 2004) (considering, under the totality test, the

reliability of a confession to support a conclusion that

the confession was voluntary). But coercion and reliability are two different things. A confession can be coerced yet reliable, or it can be voluntary but unreliable.

Yet even if it were true that Dassey’s confession revealed “critical” details, the confession would not be

admissible in evidence if the totality of the circumstances demonstrated that it was not voluntary.

Just as importantly, a closer examination of the

supposedly reliable facts on which the majority relies

shows that they are no such thing. Without reliable

facts, there is no way to draw the Conner inference

(i.e., to base a finding of voluntariness on the reliability

of the facts), questionable though that link might be.

This justifies a look at the reliability of Dassey’s confession, even if for present purposes lack of reliability is

not a stand–alone theory. A look at how some of these

“key” facts emerged instills no faith in either their reliability or their knowing and voluntary quality. For

ease of reference, I have summarized in the following

chart how the investigators extracted the “critical” details they were looking for from Dassey. It shows that

there was nothing to ensure that Dassey was offering

his own independent recollection. Instead, the officers

used a combination of leading questions, coaching, and

refusal to accept one of Dassey’s guesses as the “final”

answer until it matched what they wanted to hear.

49a

“Critical”

Fact

Why It Is Not

Critical

How It Was Coerced

Halbach was Dassey was fed “Tell us, and what else

shot in the

this fact through did you do? Come on.

head.

a leading ques- Something with the

tion after unsuc- head. Brendan?

cessful guessing.

SA 73-76.

After Dassey guesses

cutting her hair,

pucnhing her, and cutting her throat, “All

right, I’m just gonna

ask you. Who shot her

in the head?”

Dassey’s

jeans were

stained with

bleach

This evidence

corraborates

Dassey’s trial

testimony.

R. 19-21: 32-37.

Dassey testified that

his jeans became

stained with bleach

while he helped his uncle clean up what

looked like an automotive fluid spill.

The RAV4’s

license

plates were

removed

Dassey was fed “With, how’s, the lithis fact through cense plates were taka leading ques- en off the car, who did

tion. SA 90;

that?”

R. 19-24: 23

On February 27, the

investigator asked,

“Did he tell you if he

did anything with the

license plates?”

50a

“Critical”

Fact

Why It Is Not

Critical

How It Was Coerced

Dassey

sexually

assaulted

Halbach

while she

was

handcuffed

to the bed.

The physical

evidence does

not corroborate

this fact. R. 1917: 96-97; R. 1915: 214-17.

There was no evidence

of handcuffs chafing

against the headboard.

The handcuffs and leg

irons found in Avery’s

room contained no

fingerprints or DNA

from Dassey or

Halbach.

The physical

The plastic film found

evidence found on the bed’s spindle

on Avery’s bed was polypropylene,

is not probative. which, according to the

R. 19-16: 246.

state’s forensic

scientist, is found in

garments, in addition

to plastic containers

and rope manufacturing.

This detail was

drawn from

popular media.

R. 19-21: 65-67.

Dassey testified that

he concocted this

detail from Kiss the

Girls (1995), a book he

read, where a woman

is restrained during a

sexual assault.

51a

“Critical”

Fact

Why It Is Not

Critical

How It Was Coerced

Halbach was The media wide- This fact appeared in

in the back ly publicized that news stories.

of the

Halbach’s blood

RAV4.

was found in the

back of the car.

RSA 70.

The RAV4’s Dassey was fed “OK, what else did he

battery

the fact that

do, he did somethin’

cables were Avery went

else, you need to tell us

disconnected. under the RAV4 what he did, after that

hood through a car is parked there.

leading question It’s extremely imafter he

portant. (pause)

unsuccessfully Before you guys leave

guessed. SA 92. the car.”

After Dassey responded that Avery left the

gun in the car, “That’s

not what I’m thinking

about. He did something to that car. He

took the plates and he,

I believe he did something else in that car.”

“I don’t know.”

“OK. Did he, did he,

did he go look at the

engine, did he raise the

hood at all or anything

like that?”

52a

“Critical”

Fact

Why It Is Not

Critical

How It Was Coerced

Halbach was In addition to

“Was she ever in the

shot in the

being fed that

garage?”

garage.

she was shot,

Dassey was fed “No.”

that she was

shot in the

Investigators lead him,

garage, after

saying “Again, we

initially denying have, w-we know that

she was ever in some things happened

there. SA 81-86. in that garage, and in

that car, we know that.

You need to tell us

about this so we know

you’re tellin’ us the

truth.”

Shortly after, the ask,

“Tell us where she was

shot?”

“In the head.”

“No, I mean where in

the garage.”

After Dassey answered that she was

shot in the truck and

not on the garage floor,

“[C]ome on, now

where was she shot?

Be honest here.”

“The truth.”

“In the garage.”

53a

“Critical”

Fact

Why It Is Not

Critical

How It Was Coerced

Halbach’s

camera and

phone were

burned in a

barrel.

Dassey was fed On February 27, “Did

this fact through he tell ya anything

a leading ques- about … her other

tion on Febru- possessions … she

ary 27. Then on probably had her cell

March 1, he

phone, a camera to

guessed that

take pictures.”

these items

were burned.

After Dassey denied

R. 19-24: 36;

putting anything in the

burn barrel or knowing

SA 109-11.

whether she had a

purse, cell phone, or

camera, he was

pressed about what

happened to these

items and guessed,

“[Avery] burnt ‘em.”

The only possessions

he said he saw in the

burn barrel were those

fed to him (“Like a cell

phone, camera,

purse.”).

54a

“Critical”

Fact

Why It Is Not

Critical

How It Was Coerced

Halbach’s

Fed fact and

remains

media reports.

were burned R. 19-24:5-6, 9;

in the bonRSA 69.

fire pit.

On February 27, investigators said, “I find it

quite difficult to believe that if there was

a body in that [fire]

Brendan that you

wouldn’t have seen

something like a hand,

or a foot, a head, hair,

something.” Media

had reported her remains were found

there.

Dassey re- Dassey’s resisted the

sponse seems to

suggestion accept the sugthat Halbach gestion that she

had a tattoo. had a tatoo. SA

151-52.

“We know that Teresa

had a, a tatoo on herstomach, do you remember that?”

(shakes head “no”) “uh

uh.”

“Do you disagree with

me when I say that?”

“No but I don’t know

where it was.”

The majority concedes that AEDPA does not require a “nearly identical factual pattern” to find that a

decision involved an unreasonable application of law.

Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct.

2842, 168 L.Ed.2d 662 (2007) (citation omitted). But

55a

that is in essence what the majority has demanded. In

arguing that even non–AEDPA cases have found confessions voluntary under similar circumstances, the majority cites two decisions. But as it concedes, Fare v.

Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197

(1979), is critically different: Michael C. was of average

intelligence and had many prior interactions with the

criminal justice system. Id. at 726, 99 S.Ct. 2560. While

Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22

L.Ed.2d 433 (1969), may superficially appear to be more

similar to Dassey’s case, it is of dubious relevance given

the fact that it was decided (along with Michael C.)

decades before the Supreme Court instructed lower

courts to recognize the unique psychological vulnerabilities of youth stemming from their incomplete neurological development. See, e.g., Graham v. Florida, 560

U.S. 48, 68, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010);

Roper v. Simmons, 543 U.S. 551, 569–70, 125 S.Ct. 1183,

161 L.Ed.2d 1 (2005).

The Wisconsin Court of Appeals failed reasonably

to apply in any meaningful way at least three principles

that the Supreme Court has clearly established: (1)

special care for juvenile confessions, (2) consideration of

the totality of the circumstances, and, most importantly, (3) prohibition of psychologically coercive tactics.

This led to the kind of extreme malfunction in the adjudication of Dassey’s case for which section 2254(d)(1)

provides a remedy. By turning a blind eye to these

problems, the majority has essentially read habeas corpus relief out of the books.

II

There is a second, independent, reason why the district court correctly granted Dassey’s habeas corpus

petition and our original panel was correct to uphold

56a

that ruling: the Wisconsin Court of Appeals made unreasonable factual determinations. See Brumfield v.

Cain, ––– U.S. ––––, 135 S.Ct. 2269, 2276, 192 L.Ed.2d

356 (2015) (granting habeas corpus relief under section

2254(d)(2), without needing to reach petitioner’s section

2254(d)(1) argument). The district court, whose factual

assessments deserve some deference from us, found

that the Wisconsin Court of Appeals erroneously concluded that investigators made no promises of “leniency.” According to the district court, though no statement in particular rendered the confession involuntary,

the cumulative effect of investigators’ tactics overbore

Dassey’s free will.

The majority dismisses this concern because there

was no “specific” promise of lenience. But as the district court concluded, when examining the totality of

the circumstances, it is clear that Dassey was guessing

at what he thought the investigators wanted to hear so

that he could leave. Dassey was reassured across two

days of interviews that being “honest” would allow him

to go “free.” Although an adult of average intelligence

might recognize the Biblical allusion, see John 8:32

(“You will know the truth, and the truth will set you

free.”), Dassey was not an adult and not of average intelligence. Instead, he was a mentally limited teenager

who did not understand abstractions. Playing their “20

Questions” game, the officers forced Dassey to try out

different answers until he stumbled upon the answer

they wanted—defined by them as the answer that was

sufficiently truthful. And what was Dassey’s response

after all this? He asked if he was free to go back to

school to turn in a project that was due, and when told

that he could not, he indicated that he thought he would

be in jail for just one day. No more conclusive evidence

of his literalism and his lack of understanding is needed.

57a

By finding no promises of lenience were made and

that the confession was voluntary, the Wisconsin Court

of Appeals made an unreasonable determination of fact

in light of the clear and convincing weight of the evidence.

III

Under AEDPA, the role of the federal courts in reviewing Dassey’s petition for habeas relief is quite limited. But AEDPA does not paralyze us in the face of a

clear constitutional violation . The Due Process Clause

and the right against self–incrimination demand that, in

order to be admissible in evidence, a suspect’s confession must be voluntary. Dassey’s was not. Because the

detectives used coercive interrogation tactics on an intellectually disabled juvenile, Dassey’s will was overborne during his March 1 interrogation. Without this

involuntary and highly unreliable confession, the case

against Dassey was almost nonexistent. This court

should be granting his petition for a writ of habeas corpus and giving the state an opportunity to retry him, if

it so desires. I respectfully dissent.

58a

Rovner, Circuit Judge, and Wood, Chief Judge, and

Williams, Circuit Judge, dissenting.

I continue to believe, as I explained in the panel

opinion, and as Chief Judge Wood’s dissent so persuasively argues, that the state court failed to fulfill the

Supreme Court’s mandate to review juvenile confessions with special care, and unreasonably held that

Dassey’s confession was voluntary. And for all of the

reasons upon which Chief Judge Wood has expounded

and those set forth in the original panel opinion in Dassey v. Dittmann, 860 F.3d 933 (7th Cir. 2017), reh’g en

banc granted, opinion vacated (Aug. 4, 2017), I too respectfully dissent. I write separately simply to point

out the chasm between how courts have historically

understood the nature of coercion and confessions and

what we now know about coercion with the advent of

DNA profiling and current social science research.

Although I write in the hope of encouraging courts

to update their understandings of the factual nature of

coercion, my conclusion about the proper outcome of

Dassey’s habeas petition does not depend on any

change in law. Current Supreme Court precedent requires that a court view the totality of the circumstances of any interrogation, and to take special care when

evaluating the confessions of juveniles. To comply with

the command of the Supreme Court, therefore, a court

must include within its evaluation of the totality of the

circumstances the impact of coercive interrogation

techniques upon the particular vulnerabilities of the individual subject to those techniques. The state court

did not do so in considering Dassey’s appeal. For this

reason, Dassey’s conviction cannot stand. Unfortunately, four members of the seven–member en banc panel of

this court do not agree—a decision that I believe has

worked a profound injustice. Nevertheless, I hope to

59a

convince my colleagues throughout the courts that reform of our understanding of coercion is long overdue.

When conducting a totality of the circumstances review, most courts’ evaluations of coercion still are

based largely on outdated ideas about human psychology and rational decision–making. It is time to bring our

understanding of coercion into the twenty–first century.

Half a century ago the Supreme Court held that police misrepresentations during interrogations, although

relevant to a totality of the circumstances inquiry, were

not in and of themselves sufficient to render an otherwise voluntary confession inadmissible. Frazier v.

Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684

(1969). In other words, police may deceive, trick, conceal, imply, and mislead in any number of ways, provided that, under a totality of the circumstances evaluation, they do not destroy a suspect’s ability to make a

rational choice. See id. (finding an interrogator’s lie

that a fellow suspect had confessed insufficient to make

an otherwise voluntary confession inadmissible);

Procunier v. Atchley, 400 U.S. 446, 454, 91 S.Ct. 485, 27

L.Ed.2d 524 (1971) (determining that it was not per se

coercive for police to send in a cooperating insurance

agent to deceive the defendant into confessing to obtain

insurance payments for his children); see also United

States v. Villalpando, 588 F.3d 1124, 1128 (7th Cir.

2009) (“Trickery, deceit, even impersonation do not

render a confession inadmissible”); United States v.

Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990) (noting

that “the law permits the police to pressure and cajole,

conceal material facts, and actively mislead—all up to

limits”).

These cases, however, were born in an era when

the human intuition that told us that “innocent people

60a

do not confess to crimes” was still largely unchecked.

This belief is rooted in the mind’s tendency to assume

that statements made to a police officer that are

against one’s self interest can be trusted or, to put it

simply, the thought that most of us have that “I would

never confess to a crime I did not commit.”1 Peer–

reviewed studies confirm that jurors tend to have

hard–to–dislodge beliefs that a suspect who is innocent

could not be manipulated into confessing.2 And, in fact,

this false notion is precisely what the state implored

the jurors in Dassey’s trial to believe, arguing in closing

that “[p]eople who are innocent don’t confess.” R. 19–

23 at 144. We know, however, that this statement is

unequivocally incorrect. Innocent people do in fact confess, and they do so with shocking regularity. As of

June 7, 2016, The National Registry of Exonerations

had collected data on 1,810 exonerations in the United

States since 1989 (that number as of December 4, 2017

is 2,132), and that data includes 227 cases of innocent

people who falsely confessed.3 This research indicates

that false confessions (defined as cases in which indisputably innocent individuals confessed to crimes they

1

Saul M. Kassin et al., Police–Induced Confessions: Risk

Factors and Recommendations, 34 L. & Hum. Behav. 49, 51

(2010).

2

Iris Blandón–Gitlin et al., Jurors Believe Interrogation Tactics Are Not Likely to Elicit False Confessions: Will Expert Witness Testimony Inform Them Otherwise?, 17 Psychol., Crime & L.

239, 256 (2011).

3

Samuel Gross et al., For 50 Years, You’ve Had “The Right to

Remain Silent,” The National Registry of Exonerations, False

Confessions (June 12, 2016), http://www.law.umich.edu/special/

exoneration/Pages/false–confessions.aspx.

61a

did not commit) occur in approximately 25% of homicide cases.4

In a world where we believed that “innocent people

do not confess to crimes they did not commit,” we were

willing to tolerate a significant amount of deception by

the police. Under this rubric, the thinking went, the

innocent person (or at least the vast majority of

healthy, sane, innocent adults of average intelligence)

would not confess even in response to deception and

cajoling. And so our case law developed in a factual

framework in which we presumed that the trickery and

deceit used by police officers would have little effect on

the innocent.

If it is true that, except in extreme cases, innocent

people do not confess, what difference does it make if

detectives Fassbender and Wiegert made false assurances and used deception in interrogating Dassey? So

what if they gave general assurances of leniency, used

leading questions, fed Dassey information, lied about

how much information they had, told Dassey that they

were on his side, implored him that “honesty is the only

thing that will set you free,” suggested answers, and

even went so far as to tell a confused and floundering

Dassey that Teresa had been shot in the head? “Dassey was not subject to physical coercion or any sort of

threats at all,” the majority tells us, and “[g]iven the

history of coercive interrogation techniques from which

modern constitutional standards for confessions

emerged, this is important.” Ante at 313.

4

Samuel Gross et al., Exoneration in the United States,

1989–2012: Report by the National Registry of Exonerations, 58,

60,

https://www.law.umich.edu/special/exoneration/Documents/

exonerations_us_1989_2012_full_report.pdf.

62a

But what do we do when the facts that supported

our “modern constitutional standards” come from a fifty–year–old understanding of human behavior, and

when what we once thought we knew about the psychology of confessions we now know not to be true?

Our long–held idea that innocent people do not confess

to crimes has been upended by advances in DNA profiling. We know now that in approximately 25% of homicide cases in which convicted persons have later been

unequivocally exonerated by DNA evidence, the suspect falsely confessed to committing the crime.5 The

majority points out that the number of known false confessions is low compared to the total number of guilty

pleas to violent felonies. Ante at 317–18 n.8. This comparison is inappropriate for two reasons. First, the

number of guilty pleas is the wrong denominator. Defendants plead guilty in all manner of situations, not

only after interrogations by the police, as was the case

with Dassey. Many defendants, for example, accept a

plea after carefully weighing their options with a lawyer without ever having been subject to a coercive interrogation—the only type of confessions with which

we are concerned in this case. Moreover, and more importantly, in the numerator, the statistics for false confessions include only those who have been exonerated

based on some form of objective evidence (DNA, impossibility, the confession of another, etc.). The universe of people who falsely confess is undoubtedly larger than the subset of people who have confessed and

then been fortunate enough to have been exonerated

by objective, irrefutable evidence. But most importantly, as the majority concedes, even one coerced false confession is “very troubling.” Ante at 317–18 n.8. Indeed

5

Id. at 331.

63a

any coerced false confession is an affront to due process

and cannot stand.

Certainly human intuition makes it almost inconceivable to imagine that someone might falsely confess

to the murder of one’s own child. Yet in October 2004,

Kevin Fox of Wilmington, Illinois did just that. He confessed to sexually assaulting his daughter, placing duct

tape over her mouth, drowning her in the river, and

then going home to sleep.6,7 His confession was detailed and included accounts of her moving and kicking

in the water and struggling to remove the duct tape as

she drowned. He quickly rescinded his confession, but

spent eight months in prison until DNA testing ruled

him out as a suspect and the State of Illinois dropped

the charges. See generally Fox v. Hayes, 600 F.3d 819

(7th Cir. 2010). Not only did the DNA alone exclude

him as a suspect, but for any who had remaining

doubts, the conviction of another man six years later

made it unequivocally certain that his confession had

been false. In 2010, Scott Eby, who was in prison for

raping a relative, confessed to the murder.8 At the

time of the murder he had been living not far from the

Fox home. While drunk and high on cocaine Eby decided to rob some houses, and when he happened upon

a sleeping three–year–old Riley Fox, he abducted her,

sexually assaulted her, and then drowned her to cover

his crime. His DNA matched that found on the duct

6

Bryan Smith, Kevin Fox, in TRUE STORIES OF FALSE

CONFESSIONS 107 (Rob Warden et al. eds., 2009).

7

Bryan Smith, The Nightmare: A Look at the Riley Fox

Case, Chi. Mag., July 3, 2006.

8

Steve Schmadeke, I’m the ‘Lowest Kind of Slime,’ Killer of

3–Year–Old Confessed. Court Records Outline Investigators’ Path

to Scott Wayne Eby, Chi. Trib., Feb. 26, 2011.

64a

tape used to bind Riley. A pair of boots, which had

been found at the scene, photographed, and then ignored for years, had the name “Eby” written on the

tongue.

Five decades ago, when the Supreme Court issued

its opinions allowing interrogator deception, there was

no DNA evidence that could demonstrate with such

clarity that innocent people were confessing to crimes

they had not committed at a surprising rate, and therefore, only a limited body of psychological science explaining why this happens.

Even now, despite the overwhelming evidence regarding the coercive nature of constitutionally permissible interrogation techniques, we have not changed

our understanding of how to view the facts surrounding

coercion when evaluating the totality of the circumstances. Yet we now have a robust and growing body

of rigorous, peer–reviewed, legal and psychological research demonstrating how current interrogation tactics

influence people, and particularly juveniles and intellectually impaired people, to act against their own self–

interest in such a seemingly irrational manner.9

Some of the factors that induce false confessions

are internal. Studies have demonstrated that personal

characteristics such as youth, mental illness, cognitive

disability, suggestibility, and a desire to please others

may induce false confessions.10 A survey of false confession cases from 1989–2012 found that although only

8% of adult exonerees with no known mental disabilities falsely confessed to crimes, in the population of ex9

See Saul M. Kassin, False Confessions, 8 WIREs Cogn Sci.

e1439 (2017).

10

Blandón–Gitlin et al., supra note 2, at 240.

65a

onerees who were younger than 18 at the time of the

crime, 42% of exonerated defendants confessed to

crimes they had not committed, as did 75% of exonerees who were mentally ill or mentally disabled.11

Overall, one sixth of the exonerees were juveniles,

mentally disabled, or both, but they accounted for 59%

of false confessions.12 Indeed, youth and intellectual

disability are the two most commonly cited characteristics of suspects who confess falsely.13 Dassey suffered

under the weight of both characteristics.

In addition to the factors specific to the suspect,

some of the factors that induce false confessions are externally imposed. These include “isolation, long interrogation periods, repeated accusations, deception, presenting fabricated evidence, implicit/explicit threats of

punishment or promises of leniency, and minimization

or maximization of the moral seriousness or legal consequences of the offence.”14 “Maximization” describes

the technique whereby the interrogator exaggerates

the strength of the evidence and the magnitude of the

charges.15 Dassey’s interrogators employed maximization by constantly reminding Dassey, “We already

know everything.” See, e.g., R. 19–25 at 17, 19, 23, 24,

26, 28, 30, 31, 36, 37, 41, 44, 47, 48, 50, 54, 55, 60, 63, 69,

71. “Minimization” describes tactics that are designed

11

12

Gross, Exonerations 1989–2012, supra note 4, at 60.

Id.

13

Samuel R. Gross et al., Exonerations in the United States

1989 through 2003, 95 J. Crim. L. & Criminology 523, 545 (2005).

14

15

Blandón–Gitlin et al., supra note 2, at 240.

Saul M. Kassin et al., Police Interrogations and Confessions: Communicating Promises and Threats by Pragmatic Implication, 15 L. & Hum. Behav. 233, 234–35 (1991).

66a

to lull a suspect into believing that the magnitude of the

charges and the seriousness of the offense will be

downplayed or lessened if he confesses.16 Studies

demonstrate that minimization causes suspects to infer

leniency to the same extent as if an explicit promise

had been made, increasing not only the rates of true

confessions (from 46% to 81% in one experiment) but

also the rate of false confessions (from 6% to 18%).17,18

Although a court must exclude a confession obtained by

direct promise of leniency (see, e.g., United States v.

Villalpando, 588 F.3d 1124, 1128 (7th Cir. 2009)), the

research demonstrates that minimization techniques

are the functional equivalent in their impact on suspects.19 The investigators in this case employed classic

minimization techniques by repeatedly telling Dassey

that it was not his fault that he committed the crime

because his uncle, Steven Avery, had made him do it.

See, e.g., R. 19–25 at 28, 47, 50, 60, 62. As Chief Judge

Wood points out in her dissent, interrogators in this

case, as in most police forces in the United States, used

the Reid Technique to obtain Dassey’s confession. This

technique involves isolation, confrontation, maximization and minimization—the psychological strong–arm

tactics that are known to produce coerced confessions

even in adults of average intelligence.

16

17

Id. at 235.

Id. at 241, 248.

18

Melissa B. Russano et al., Investigating True and False

Confessions Within a Novel Experimental Paradigm, 16 Psychol.

Sci. 481, 484 (2005).

19

Kassin, Police Interrogations and Confessions, supra note

15, at 241, 248.

67a

Dassey’s interrogation thus combined a perfect

storm of these internal and external elements. He was

young, of low intellect, manipulable, without a friendly

adult, and faced repeated accusations, deception, fabricated evidence, implicit and explicit promises of leniency, police officers disingenuously assuming the role of

father figure, and assurances that it was not his fault.20

For many years, the Reid technique has been criticized by scholars and experts for increasing the rate of

false confessions.21 As far back as Miranda, the Supreme Court warned that “[e]ven without employing

20

The majority has reservations about the use of the

Gudjonsson Suggestibility Scale and thus states that it can make

no conclusions from the disputed expert testimony about the results. Ante at 305 n.2. Whatever one might make of the Gudjonsson Suggestibility Scale, the interrogation speaks for itself. Dassey is almost frantic in his desire to find the story the investigators seek. For example, in response to the question about what

happened to Teresa’s head, Dassey guessed at every possible injury or injustice to a head (hitting, punching, throat cutting, hair

cutting) hoping to please the officers until, in frustration, they finally informed him that Teresa had been shot in the head. R. 19–

25 at 60–63. In response to pressure from the investigators, he

changes the locale of the crime from the house to the garage (Id. at

72–73), the color of Teresa’s clothes (Id. at 20, 31–32), the location

of the knife (Id. at 80–81, 121; R. 19–34 at 23–24, 27), whether Teresa was standing on the porch after school (R. 19–25 at 19–20, 27–

28, 90–91), whether Avery went under the hood of Halbach’s car

(Id. at 77–80), when the fire occurred (Id. at 23, 32–33; R. 19–34 at

55), and whether he cut her hair (R. 19–35 at 60–61; R. 19–34 at

36–37, 65–66, 98). Even under the state’s theory of the case, the

naïve Dassey, who had never been in trouble with the law and had

never had a sexual experience with a woman, was readily manipulated by his uncle into participating in a repulsive and heinous

crime. One does not need the Gudjonsson Suggestibility Scale to

conclude, under either party’s theory of the case, that Dassey was

highly suggestible and manipulable.

21

Kassin, False Confessions, supra note 9, at 8.

68a

brutality, the ‘third degree’ ” used in the Reid technique “exacts a heavy toll on individual liberty and

trades on the weakness of individuals,” and “may even

give rise to a false confession.” Miranda v. Arizona,

384 U.S. 436, 455 & n.24, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966). Recently, Wicklander–Zulawski & Associates,

one of the nation’s largest police consulting firms, said

it will stop training detectives in the method it has

taught since 1984, stating that it “is not an effective

way of getting truthful information.”22 After a spate of

high–profile false confession cases in the 1980’s, Great

Britain transitioned from an accusatorial and coercive

Reid–like approach to an investigative model of interviewing which prohibits deception, coercion, and minimization.23 Meta–analyses of twelve different laboratory experiments indicate that the accusatorial approach

increased both true and false rates of confessions, while

the information–gathering approach increased the rate

of true confessions without also increasing false confessions.24

No reasonable state court, knowing what we now

know about coercive interrogation techniques and viewing Dassey’s interrogation in light of his age, intellectual

deficits, and manipulability, could possibly have concluded that Dassey’s confession was voluntarily given. Alt22

Eli Hager, The Seismic Change In Police Interrogations: A Major

Player In Law Enforcement Says It Will No Longer Use A Method

Linked To False Confessions, The Marshall Project (March 7, 2017, 10:00

p.m.), https://www.themarshallproject.org/2017/03/07/the–seismic–change–

in–police–interrogations.

23

24

Kassin, False Confessions, supra note 9, at 8.

Christian A. Meissner et al., Accusatorial and Information

Gathering Interrogation Methods and Their Effects on True and

False Confessions, A Meta–Analytic Review, 10 J. Exp. Criminology 459, 481–82 (2014).

69a

hough it is my hope that our courts will, when evaluating

the totality of the circumstances, engage with the more

current understanding of coercion, as I noted at the

start, Dassey does not need a change in our existing Supreme Court precedent or any existing law to prevail on

his habeas petition. What has changed is not the law,

but our understanding of the facts that illuminate what

constitutes coercion under the law. Moreover, even under our current, anachronistic understanding of coercion,

Dassey’s confession was so obviously and transparently

coercively obtained that it is unreasonable to have found

otherwise. Dassey, however, need not rely on this finding either. Existing Supreme Court precedent allows for

significantly deceptive and manipulative interrogation

techniques, but those very techniques must then be

evaluated, in a totality of the circumstances analysis, for

what they are.

The requirement that confessions must be voluntary is a principle at the heart of our legal system. Although psychological and physical torture and coercion

are commonplace in some countries as a means of obtaining “confessions,” our system of justice rejects the

notion that convictions can be obtained through such

abuse. We refuse to accept such conduct as a means of

obtaining information, not only because it impacts the

veracity of the confession, but because it is conduct that

we as human beings cannot tolerate from our government. In a case such as this one, where investigators

are faced with a crime of horrific brutality and the loss

of a treasured life, the impulse to coerce a confession

from a suspect may be particularly strong. As judges,

we are entrusted with the responsibility to protect

against such abusive actions, and uphold those principles that our Constitution protects even in the darkest

of times.

70a

What occurred here was the interrogation of an intellectually impaired juvenile. Dassey was subjected to

myriad psychologically coercive techniques but the

state court did not review his interrogation with the

special care required by Supreme Court precedent. His

confession was not voluntary and his conviction should

not stand, and yet an impaired teenager has been sentenced to life in prison. I view this as a profound miscarriage of justice. I respectfully dissent.

71a

APPENDIX B

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

No. 16-3397

BRENDAN DASSEY,

Petitioner-Appellee,

v.

MICHAEL A. DITTMANN,

Respondent-Appellant.

Rehearing En Bank Granted,

Opinion Vacated August 4, 2017

Argued February 14, 2017

Decided June 22, 2017

[860 F.3d 933]

OPINION

*

*

*

Before Rovner, Williams, and Hamilton, Circuit Judges.

Rovner, Circuit Judge.

Teresa Halbach disappeared on Halloween Day,

2005. Her concerned family and friends contacted law

enforcement after she did not show up at the photography 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

72a

yard owner who lived 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 postconviction 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 juvenile 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.

73a

I.

The facts related to this case are expansive and

convoluted, 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. Wis. 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 tightknit family, and lived in a farmhouse a quarter mile

from her parents. On October 31, 2005, she photographed three vehicles for Auto Trader Magazine. 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 photographs at the Avery property on five prior

occasions, and Avery called Auto Trader the morning of

October 31 and requested that “the same girl who had

been out here before” come and take pictures of a vehicle that was for sale. Just before 2:30 p.m., Halbach

contacted Auto Trader Magazine and said that she was

on her way to the Avery property. Sometime 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

74a

3:00 p.m. and observed Halbach’s 1999 Toyota RAV4

still outside Avery’s residence but did not see Halbach.

When he returned 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 removed 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 horrendous crime. Some of that evidence

came from a burn barrel 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 seeing a large bonfire in the burn pit outside of

Avery’s residence on October 31. The police arrested

Avery after the discovery 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 ignition, a CD

75a

case, a metal panel between the rear seats and 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 explained 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 sophomore 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 intellectually 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 suggestible than

95% of the population.

76a

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. Because of the poor quality of the

cassette tape recording of that interview, the prosecuting attorney requested that the investigators reinterview 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, Barbara 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 present 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 investigation and made what Dassey characterizes as the first of many assurances and

promises:

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.

1

All record cites are to the record in the United States District Court for the Eastern District of Wisconsin, Case No. 14-CV1310.

77a

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.

R. 19-24 at 5. After this assurance, Dassey began what

would become a series of alterations in his story over

time, increasing his culpability in response to suggestions by the investigators. 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

evidence 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.

78a

Fassbender met with Dassey again that evening in

a hotel room where Dassey told Fassbender, in an unrecorded interview, 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 bleachstained jeans and then drove him forty-five minutes

away to the Manitowoc County Sheriff’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 restroom at the start and at

various times throughout the interview. 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

79a

helping 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 naked and handcuffed to Avery’s bed. Finally, Dassey

admitted 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 story line in its brief on appeal, it

does so by picking and choosing pieces from various

versions of Dassey’s recitations.

At the very end of the confession, Dassey’s mother

entered the interrogation room and the following exchange occurred after the officers left the room:

Brendan: I got a question?

Barb Janda: What’s that?

Brendan: What’d happen if he says something

his story’s different? Wh-he says he, he admits

to doing it?

80a

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 remaining 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 interviews 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 murder of Halbach—investigators did

not find any of Dassey’s DNA or blood on any of the

many objects that were mentioned 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

appointed 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, 9–11.

81a

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 interview R. 19-26 at 142, 144–45, 153,

170. During each of Kachinsky’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 appearances 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 investigation of the case and to conduct the polygraph examination that Dassey had requested. Despite

Dassey’s claims of innocence, Kachinsky and O’Kelly

proceeded on the assumption 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 information and evidence

that would bolster the prosecution’s case against Avery

even if that “evidence would tend to inculpate Brendan,” R. 19-29 at 47, and that his “emotions sided with

what happened to Teresa Halbach.” Id. at 96. Kachinsky and O’Kelly even sent information to the prosecution about the location of a knife they thought had

been used in the crime, based on what they had cajoled

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from Dassey, but searches pursuant to those tips did

not produce any evidence.

To effectuate his plan to garner Dassey’s cooperation in Avery’s prosecution, Kachinsky decided that the

investigator, O’Kelly, should re-interview Dassey and

compel him to confess yet again, and should do so after

the trial judge denied the motion to suppress his March

1 interview, when he would be most vulnerable. R. 1926 at 244.

Shortly before interviewing Dassey, O’Kelly wrote

to Kachinsky 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 comfort. 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 Dassey’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 direction 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 were inconclusive R. 19-

83a

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. 1938 at 1. Dassey responded, “That I passed it?” R. 19-38

at 1. “It says deception indicated,” O’Kelly responded,

emphasizing “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, 118 S.Ct. 1261, 140 L.Ed.2d 413 (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 considered

inconclusive.” Paul C. Giannelli, Polygraph Evidence: PostDaubert, 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.

84a

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, Dassey would go to prison

for the rest of his life. After a grueling interrogation by

O’Kelly, Dassey confessed, providing yet another version of the story. O’Kelly immediately telephoned Kachinsky who arranged for Dassey to undergo another

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 second 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 meeting 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 officers. Dassey’s mother was scheduled

to visit him the following 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 tomorrow. 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. In that

85a

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, 104

S.Ct. 3562, 82 L.Ed.2d 864 (1984). The trial judge decertified Kachinsky from being appointed in most felony matters going 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 emails describing the whole family as “evil” and “criminals,” and, without Dassey’s knowledge or consent, sent

an e-mail to prosecutors on May 5 indicating where

they thought the murder weapon was hidden. No mur-

86a

der weapon was ever found. 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 discussed 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 Kachinsky, 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 recorded

jail telephone line—was used three times at trial: once

to cross examine Dassey; once to cross-examine Dassey’s expert 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 participating 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 accepted 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.

87a

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 continually 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 investigators and avoid conflict.3 One example

that the jury saw, as they watched the four hour interrogation, concerned Halbach’s shooting. By the time of

the March 1 confession, forensic examiners had informed law enforcement that Halbach had been shot in

the head, but this information was not yet public. If

Dassey could tell the investigators that Halbach had

been shot in the head, it would have been strong evidence of the veracity of his confession. Dassey had

never mentioned that Halbach was shot. Consequently,

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. 1925 at 60. But even this clue was not enough to elicit the

information they wanted 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 suggestive questioning continued

throughout the interrogation.

3

Dassey and Avery were tried separately.

88a

The defense also presented the testimony of a forensic psychologist, Dr. Robert Gordon, who testified

that he reviewed many years of Dassey’s school records, performed a mental status examination of Dassey,

and tested Dassey using 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 impairment.

His test results demonstrated that Dassey performed

on the extreme ends of the scales for social avoidance

(being socially passive and withdrawn), social introversion, 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% percentile of intelligence). Gordon also administered the

Gudjonsson Suggestibility Scales, a test developed by a

forensic psychologist and a leading expert in confessions, which is designed 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 seriousness of the crime, blaming other participants for their

89a

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 intentional homicide, not eligible for release to extended supervision 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 ineffective assistance and that his March 1 confession was involuntary. 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 confessions. 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, “balancing the defendant’s personal

90a

characteristics against the police pressures used to induce the statements.” State v. Dassey, No. 2010AP

3105, 2013 WI App 30, ¶ 5, *1, 2013 WL 335923 at *1,

346 Wis.2d 278, 827 N.W.2d 928 (table) (Wis. 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 reminder 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 voluntary and

admissible.

¶ 7 The court’s findings are not clearly erroneous. Based on those findings, we also conclude

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

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.”

91a

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 tactic like exaggerating strength of evidence

against suspect does not necessarily make confession involuntary but instead is a factor to

consider in totality of circumstances). The

truth of the confession remained for the jury to

determine.

State v. Dassey, 2013 WL 335923 at *2. Although the

state appellate court listed Dassey’s characteristics and

some of the circumstances of his interrogation, as we

will describe in detail below, it did not do the one thing

that the Supreme Court requires which is to use “special caution” when assessing the voluntariness of juvenile confessions. J.D.B. v. North Carolina, 564 U.S.

261, 269, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011); In re

Gault, 387 U.S. 1, 45, 87 S.Ct. 1428, 18 L.Ed.2d 527

(1967); Gallegos v. Colorado, 370 U.S. 49, 53–54, 82

S.Ct. 1209, 8 L.Ed.2d 325, (1962); Haley v. Ohio, 332

U.S. 596, 599–601, 68 S.Ct. 302, 92 L.Ed. 224 (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 coerced, 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 encouraging honesty and the use of deceptive practices that are

not 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 evalua-

92a

tion 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 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” pursuant to 28 U.S.C. § 2254(d)(1).

In juveniles, the evaluation of the totality of the

circumstances “includes evaluation of the juvenile’s

age, experience, education, background, and intelligence, and into 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 v. Michael C., 442 U.S. 707, 725, 99

S.Ct. 2560, 61 L.Ed.2d 197 (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 of his Fifth

Amendment rights, and the consequences of waiving

those rights. In short, the state appellate court did not

93a

identify the correct test at all and did not apply it correctly.

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 deficiencies, the court stated that he was “long

gone before Dassey’s trial or sentencing. Dassey has

not convinced us that Kachinsky’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 reference 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

strategies. 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 obtained 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.

Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333

(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’ decision as to the admissibility of

the May 13 telephone call between Dassey and his

mother was not contrary to clearly established federal

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law or based on an unreasonable determination 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 order 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 limits it considerably. It “erects a formidable

barrier to federal habeas relief for prisoners whose

claims have been adjudicated 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 disagreement.”

Burt v. Titlow, —U.S.—, 134 S.Ct. 10, 12, 187 L.Ed.2d

348 (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 established’ at

the time of the state court adjudication.” Elmore v.

Holbrook, —U.S.—, 137 S.Ct. 3, 7, 196 L.Ed.2d 272

(2016). A federal court reviewing a habeas petition

must examine the decision of the last state court to rule

on the merits of the issue, which in this case is the state

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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 Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(1) and (2). Under § 2254(d)(1), a statecourt decision is contrary to Supreme Court precedent

if it is inconsistent with the Supreme Court’s treatment

of a materially identical set of facts, or if the state court

applied 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, 122 S.Ct. 1843, 152

L.Ed.2d 914 (2002) (citing Williams v. Taylor, 529 U.S.

362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

And a state-court decision constitutes an unreasonable

application of Supreme Court precedent within the

meaning of section 2254(d)(1) when, although it identifies the correct legal rule, it applies that rule to the

facts in a way that is objectively unreasonable. White

v. Woodall, —U.S.—, 134 S.Ct. 1697, 1705, 188 L.Ed.2d

698 (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, —U.S.—, 136 S.Ct.

1493, 194 L.Ed.2d 589 (2016); see also Miller-El v.

Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d

931 (2003) (a federal court can, guided by AEDPA, conclude that a state court’s decision was unreasonable or

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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 petitioner’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

relief.” Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct.

2317, 162 L.Ed.2d 196 (2005). Section 2254(d)(1) allows

for a grant of relief when a decision involved 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 Supreme Court has identified as relevant to juvenile confessions.

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, but unreasonable. Id. Secondly, the

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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 appellate court articulated the correct standard (but only as it applied to

adults), it ignored several determinative factors outright 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 unreasonable 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 evaluate the totality factors

for juveniles as required. Furthermore, the state appellate court applied the generic totality of the circumstances test to the facts in a way that was objectively

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, 123 S.Ct. 1029. Although the

state appellate court noted that

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