The Volokh Conspiracy

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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?


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.