Supreme Court

Will "Making a Murderer" Make Its Way to the Supreme Court?

What are the chances the justices will consider Brendan Dassey's cert petition cert worthy?

|The Volokh Conspiracy |

Could the second season of the hit Netflix documentary series "Making a Murderer" feature the U.S. Supreme Court? It might, as one of the accused profiled in the series, Brendan Dassey, has filed a petition for certiorari asking the Court to clarify when a juvenile defendant's confession should (or should not) be considered voluntary.

As Leah Litman explains at Prawfsblawg, there are reasons the justices may find Dassey v. Dittman to be cert-worthy.

Dassey—who has significant intellectual and social limitations—was convicted of murder and related offenses largely on the basis of a confession that was obtained while he was 16. And the question in Dassey v. Dittman is whether the Wisconsin courts were unreasonable to conclude that the confession was obtained voluntarily. . . .

there are reasons to doubt the veracity of Dassey's confession. The cert. petition contains a long and troubling excerpt of an exchange between Dassey and investigators, during which investigators ask him for information, Dassey provides answers that are apparently inconsistent with the forensic evidence, and then investigators give him answers that are consistent with the forensic evidence, at which point Dassey—who is susceptible to suggestion—adopts those answers. It is hardly a model of a confession that emanates from the defendant's knowledge, rather than the officers' suggestions. And the confession, as was true with Williams, was essentially the entire case against Dassey. (The interrogation is also videotaped, which makes any factual disputes and characterizations less significant.) . . . .

As Litman notes, Dassey's attorneys maintain Wisconsin state courts failed to apply relevant Supreme Court precedent when evaluating the voluntariness of Dassey's confession. The rub, however, is that Dassey is a habeas petitioner pleading his case under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), and the Court is notoriously stingy in evaluating such claims. Perhaps the high volume of media attention to Dassey's case will help make the difference. After all, (as Litman notes), this case "provides the Court an opportunity to clarify the voluntariness standard, particularly how it applies to juvenile interrogations and juvenile confessions." We'll see whether the Court takes up that opportunity.

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  1. Dassey provides answers that are apparently inconsistent with the forensic evidence, and then investigators give him answers that are consistent with the forensic evidence, at which point Dassey?who is susceptible to suggestion?adopts those answers.

    We need to attract a better class of person to law enforcement.

    1. Agreed. We need to prohibit Democrats from becoming cops.

      1. Ah, zinger! It’s funny, because the implication is that democrats (1) are less ethical than Republicans, and (2) Democrats tend to be attracted to law enforcement.

        And it’s doubly funny because it’s all true. When you think of Democrats, you think of law enforcement, the military, etc. It’s why both groups overwhelmingly vote for Democrats in nation-wide elections, cycle after cycle.

        Whew…keep those brilliant bon mots coming.

        1. I cant imagine he even believes he is making any sense at all. Maybe has no idea what a cogent thought would look like. I do, though, have the ability to not attribute the qualities of ARWP to all those to my right. It also takes a certain class of difficient individual to lump everyone with differing political views into one monolithic entity like this simpleton does every damn time he has a chance.

          1. Some may try argumentation or satire, but no one on this blog does more damage to conservatives than that guy.

  2. I wonder, why doesn’t the FBI record interrogations?

    1. Ha! I think you don’t, actually.

    2. They do, have been since a policy change four years ago. See here.

      1. And if the Fan Belt Inspectors want to talk to you, record that as well. Anything can be made into an 18 USC 1001 as long as the Fibbie can channel a Paranoia! Troubleshooter: “I can speak without fear of contradiction.”

      2. So reading the limitations on that policy (“the change is narrow in scope since it applies only to interviews with suspects who have already been arrested or are in custody.” and also nothing that covers national security, which we know the FBI can lie about covering anything), it wouldn’t have applied to anyone related to the Trump investigation, Ibragim Todashev, or anyone else I can think of off the top of my head (obviously it would have applied to a great deal of people I can’t name because they don’t make the news)

  3. I actually think the media attention, if it has any effect at all, will make it less likely SCOTUS grants cert. Inevitably, if the Court grants cert, the headlines will be something along the lines of “Supreme Court Agrees to Determine If Making a Murderer Confession Was Voluntary.” No one in the media will comprehend the extreme deference required to state courts under AEDPA. I think the justices just won’t want to deal with that.

    1. I agree with this take. Accepting cert. a no-win situation for the Court.

      If you overturn the conviction, whatever rule you announce will always be viewed through the public’s understanding of that case — a view that is clouded by the producers’ decision on what to air on the documentary. On the other hand, if you vote to affirm the conviction, then you’re an evil heartless bastard who wants an innocent kid to rot in prison (regardless of whether, as a legal matter, the 7th Circuit was correct).

      Look, as a factual matter, I have serious doubts about either of the Dassey’s guilt (a view I admit is 98% based on a one-sided documentary). I’m guessing I’m not alone in that. But cases like that are susceptible to making bad law.

  4. Considering the facts of this case I think the fact that it is Dassey’s age that is the most relevant factor and not the methods of his interrogators shows the moral bankruptcy of the current legal regime. Does someone genuinely believe that wherher Dassey was 18 or 20 or 14, it would be the single most important element of the alleged injustice?

  5. Is this really an issue of voluntariness? Giving him the “right” answers and him parroting them back isn’t coercive. At least I wouldn’t consider it that way. This seems more a question of fact of whether what he said in the confession was truthful. His susceptibility to suggestion may be a good reason to doubt it was but that is for the defense to argue and ultimately the jury to determine.

    1. Yes that is coercion. Coercion is not something with a measurable black or white value. If someone holds a gun to your head and you do what they say, is that 1% voluntary and 99% coercion? You do have the choice. Does it matter what the gun caliber is? No. What if it’s not a gun, but they threaten you with a golf club — just because there’s more chance of survival doesn’t lesson the coercion.

      Here the coercion is powerful police against an immature 16 year old, with teh strong implication that they know more, that they are wiser, and above all else, they are police and responsible while he is just a confused kid who doesn’t know as much as they do. How is that not coercion? If your father had interrogated you for hours at that age — of if the police had — do you honestly think you would not have been inclined to say what they wanted?

      There’s a reason kids aren’t allowed to sign contracts, and why statutory rape is a thing regardless of explicit consent.

      1. “Here the coercion is powerful police against an immature 16 year old,”

        You are in effect saying its unconstitutional coercion to ever interrogate a minor.

        I do not think even the 5 liberals on this court will buy that.

        1. Bob, make an attempt to read a post in a way that isn’t ridiculous. i.e. give the benefit of the doubt.
          You are the worst strawman builder. Your interpretation is a huge stretch.

          Can’t you see the statement you are replying to isn’t about “any interrogation of a minor”.

          Are you unable to see that ‘here’ in the sentence you quote is most naturally read to mean ‘in cases like this, where the police hold and interrogate for hours on end’ – and incorporates the other attendant facts of this case?

          And ‘an immature 16 year old’ doesn’t cover all minors. Do I have to spell this out? It doesn’t refer to 17 year olds, nor to 16 year olds of normal mental ability. And maybe here ‘immature’ means 16 year olds with the mental acuity of a 12 year old.

          Do you set up these extreme strawmen on purpose?

          Do you mean to say that if accept this is a case of coercion then a similar argument can be made that all interrogations of children are coercive?

          Do you expect to have your views taken seriously when they are this disconnected from reality?

          1. Unlike you, I can see the logical extension of scarecrow’s argument. He ended with:

            “There’s a reason kids aren’t allowed to sign contracts, and why statutory rape is a thing regardless of explicit consent.”

            How is that not an argument that any custodial questioning is coercion and hence unconstitutional? Statutory rape laws generally do not apply to 16 year olds but younger children, for instance, and avoidance of contracts applies to 17 years, 364 day old minors.

            1. Scarecrow’s post simply isn’t an argument that “any custodial questioning is coercion”. You are inserting *your* conclusion, which you seem to think inevitably follows from his reasoning.

              And you frame your ‘logical extension’ as his argument: “You are in effect saying[]”
              You seem to be setting up a straw man w/ scarecrow here. (though that seems kind of a traditional use of straw men; scarecrows?)

              SRC leads with what appears to be his conclusion; ‘that is coercion.’ Don’t get me wrong, I don’t think that’s been established in Dassey’s case.

              You just seem to think that your conclusion inevitably follows from his argument. When SRC says “there’s a reason kids aren’t allowed to sign contracts”, mightn’t that mean:
              {we recognize a reason exists not to let children enter into contracts (see the line we draw at 18 years when people may contract), and a similar justification should apply when we consider whether children are coerced in a situation like Dassey’s.}

              In any case, you have not connected your conclusion to his argument. You are jumping to that conclusion on your own, can you connect the statement/post to that conclusion?

              and maybe connect this thought to your others;

              ‘Statutory rape laws generally do not apply to 16 year olds but younger children, for instance, and avoidance of contracts applies to 17 years, 364 day old minors.’

              Therefore … What?

    2. I’ll stick you in a box for a day and try to get you to say something that isn’t true and that will harm you, and you’re an intelligent adult, so you know it will harm you. It might work, but probably not.

      I’ll stick a four year old in a box for a day and do the same thing. Think I can get him to say what I want?

      1. Not all torture is physical.

        1. And it can be turned back on the cops. When they refuse to give you a bathroom break (a requirement under the Police Bill Of Rights), find a trashcan, or piss in the corner of the interrogation room.

      2. It was 3 hours, not “a day”, a room with tables and chairs not a “box” and he was not a four year old.

        Otherwise, good analogy.

        1. You feckless (gent), you. The point is that there is a line somewhere, with some mental age of a subject, and some level of confinement, where you cross into the territory of coercion. Not that Dassey is akin to the strongest case mentioned. You are either too dishonest to participate meaningfully in, or somehow unfit to comprehend, these discussions.

          1. “The point is that there is a line somewhere, with some mental age of a subject, and some level of confinement, where you cross into the territory of coercion.”

            Maybe your point, not the one I was responding to.

            Why don’t you go feck yourself.

            1. Do you really think my point was 24 hours? I award you no points.

            2. Bob, it appears you can read all the words and might know what they mean on their own, but together, their meaning escapes you. (Your reading comprehension is (poor).) And if its not just your inability to put your thoughts into words that’s tripping you up here, you don’t seem to understand the first thing about argumentation or logic.

  6. Stanford Experiment 2.0

  7. This would be the appropriate time for the federal government to evaluate state procedures and make sure they comply with the US Constitution, Wisconsin Constitution, and case law.

  8. If there is really a need to clarify the rules on juveniles and voluntary confessions, they should pick a federal case on direct appeal. The issue in this case is not whether the confession was voluntary, but whether the en banc Seventh Circuit properly applied the AEDPA.

  9. The Seventh Circuit of all places affirmed a conviction in an AEDPA case. I doubt the Supreme Court will change that.

  10. Dassey also provided accurate details that were not fed to him by the cops. Overall, it looks exactly like what you’d expect from a mentally challenged kid.

    Notice there is no lawyer or parent present? His lawyer at the time advised the family to allow the cops to pick Brendan up from school and question him without a parent or lawyer present. The cops received permission from his mother to pick him up at school and take him in for questioning. Any defense lawyers wish to comment on the wisdom of this.

    1. If true, his lawyer at the time should be disbarred permanently.

      1. D-Pizzle, There were tons of questions about the way the first lawyer handled this. He claims his decisions were based on what he had been told by the police and Dassey’s own family. Most people believe that he was just looking for best route to a plea bargain. I lived about 20 minutes away from the Avery junkyard and had picked up parts there several times for a friend of the family who did mechanical work for neighbors. That family was not well regarded by anyone who knew them. A lot of people in the area had grown up with them, went to school with them, etc. I never heard anyone express any doubts about Avery’s guilt. Given all the bad feelings locally – even well before his arrest – I was surprised the trial wasn’t moved to another part of the state, instead of just bringing a jury in from another county.

        Brendan had some emotional issues as well as the developmental ones. He was a pretty big kid for his age, but had never been aggressive or violent. He was known to be a follower type. Easily led by people he wanted to be liked by.

        Manitowoc County and city police are not well regarded either. A lot of people who believe Avery/Dassey are guilty also believe the cops “helped” the case by manipulating or even planting evidence. It would not have been the first time.

    2. A lawyer should be present – particularly given the nature of the charges. A parent would be insufficient, particularly when parents often end up aiding the police against their child because they think they need to cooperate.

      I’d love to know what those accurate details were and whether they were publicly available or easily guessed.

      1. I doubt the cops were completely forthcoming on why they wanted to talk to Dassey or the extent of their interest in him as a perp. The lawyer should have known better. Dassey’s mom hated Avery and was probably told something along the lines of needing Dassey’s help in putting Avery back in prison.

        By the time the Dassey family realized what was really happening and hired some serious legal help, it was a giant shit sandwich.

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