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U.S. Supreme Court Will Not Hear Brendan Dassey Appeal

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Statement by Brendan Dassey’s attorney Laura Nirider from Northwestern Pritzker School of Law’s Center on Wrongful Convictions of Youth:

“We will continue to fight to free Brendan Dassey. Brendan was a sixteen-year old with intellectual and social disabilities when he confessed to a crime he did not commit. The video of Brendan’s interrogation shows a confused boy who was manipulated by experienced police officers into accepting their story of how the murder of Teresa Halbach happened.  These officers repeatedly assured him that everything would be ‘okay’ if he just told them what they wanted to hear and then fed him facts so that Brendan’s ‘confession’ fit their theory of the crime.  By the end of the interrogation, Brendan was so confused that he actually thought he was going to return to school after confessing to murder.  Nonetheless, he was convicted and sentenced to life in prison on the basis of this ‘confession.’

Unfortunately, Brendan isn’t alone. Over the past twenty years, extensive empirical and psychological research has shown that children under 18 are between three and four times more likely to falsely confess than adults – and yet the criminal justice system fails many of them.  It’s up to the courts to put an end to this.  Now, more than ever, courts around the country must update their understandings of coercion in light of the newly understood problem of false confessions.  The Center on Wrongful Convictions of Youth is dedicated to continuing this effort, along with our justice-minded partners in both law enforcement and defense-oriented communities across the globe.

We would like to extend sincere gratitude to the dozens of former prosecutors, national law enforcement trainers, leading psychological experts, innocence projects, juvenile justice organizations, and law professors who filed amicus briefs in this case and who, along with our legal team, will continue to fight for Brendan and the many other children who have been wrongfully convicted due to the use of coercive interrogation tactics.”

-Laura Nirider, attorney for Brendan Dassey

-June 25, 2018

To Read NBC’s article, Netflix ‘Making a Murderer’ case won’t be heard by Supreme Court, click here.

Dassey v. Dittman Case Background

Sixteen-year-old Brendan Dassey was a high school sophomore enrolled in special education classes when he falsely confessed to helping his uncle kill a young Wisconsin woman. Brendan had a verbal IQ score of 65 and a general intellectual ability score in the seventh percentile of students his age.  His learning disabilities left him unable to spell words like “rack” or “agent” and caused him to be more vulnerable to suggestion than 95% of the population.  He had never been in trouble with the law, preferring to spend his afternoons and weekends at home playing Pokémon video games. No evidence linked Brendan to the crimes for which he was convicted other than his false confession.  Nevertheless, he was convicted and sentenced to life in prison at age sixteen – an injustice that outraged millions of viewers of Netflix’s “Making a Murderer” around the globe.

Despite his impairments, Brendan was interrogated four times over 48 hours, all of which occurred without an attorney and three of the four without a parent present. When he ultimately “confessed,” Brendan was unable to describe basic facts about the crime – including how the victim was killed – until police told him what their investigation had revealed and assured him that he would be “set free” if he only confirmed what they said.  Consistent with his diagnosed susceptibility to suggestion, Brendan did what the interrogators requested: He agreed with their statements, thereby confessing to serious crimes.

Brendan’s case raises fundamental legal questions that are long overdue for answers.  The U.S. Supreme Court has not accepted a juvenile confession case of this type in more than forty years.  But during those same decades, the development of DNA technology has proven hundreds of confessions to be false – including a disproportionate number of confessions from impaired juveniles like Brendan.  Now, more than ever, it is vital for the Supreme Court to insist that lower courts strictly enforce longstanding constitutional principles that are supposed to protect children in the interrogation room – but that are too often minimized or ignored.

From the panel decision of the United States Court of Appeals for the Seventh Circuit: “Detectives continually challenged Dassey’s statements and accused him of lying until…his confession became a litany of inconsistencies—shirts that changed color, fires that began and ended at different times, garbage bags that sat in burning fires without melting, trucks that were seen in garages and then not seen in garages, bloody crime scenes without a trace of blood remaining, metal handcuffs that left no marks on the bed posts, etc.”

Other interrogation tactics used on Brendan Dassey included the detectives’ statement that “I’m a cop but I’m not right now. I’m a father” who wanted “nothing…more than to come over and give you a hug.”  Brendan was also promised that although he might fear “get[ting] arrested,” he would be “all right” and would not “have to worry,” even if the case “goes to trial,” as long as he “filled in” the blanks with “statements…against your own interest” that “might make you look a little bad or…like you were more involved than you wanna be looked at.”

Viewers of Making a Murderer will recall that, after “confessing” to murder, Brendan asked police if he would be returned to school before sixth hour because he had a project that he wanted to complete.  After being placed under arrest, moreover, Brendan asked: “Is it only for one day?”  He later told his mother that his interrogators had “got to my head” and testified at trial that he had understood the officers to promise that ‘no matter what’ he said, ‘I wouldn’t be taken away from my family and put in jail.’”  No other evidence supported his guilt besides the confession.

The Petition for Certiorari points out that there have been many other cases like Brendan’s that have gone unrectified for too long. “Data from the National Registry of Exonerations shows that children and adolescents are almost four times as likely as adults to confess to crimes they did not commit. … Indeed, though juveniles account for less than ten percent of all exonerations tracked by the Registry, they comprise almost thirty percent of the exonerees who falsely confessed…The evidence of false confessions by individuals with intellectual disability is more overwhelming still. Among exonerations tracked by the National Registry of Exonerations, a full seventy percent of exonerees with mental illness or intellectual disability falsely confessed. National Registry of Exonerations, Age and Mental Status of Exonerated Defendants Who Confessed, supra. This is tenfold the false confession rate among adult exonerees without such disabilities.”

Juveniles’ vulnerability in the interrogation room stems from well-understood principles of adolescent brain development that were embraced by the U.S. Supreme Court in cases like Roper v. Simmons, in which the Court banned the execution of children under the age of eighteen.  There, Justice Kennedy wrote for the majority that juveniles “are more … susceptible to … outside pressures.”  This “common sense” principle was extended to the Miranda context for juveniles in 2011’s J.D.B. v. North Carolina – where the Court concluded that juveniles are particularly likely to falsely confess.

But while the confirming science is new, the underlying “common sense” principle has been long understood.  Indeed, the U.S. Supreme Court has for decades insisted that courts evaluating juveniles’ confessions must use “special care” and must consider that it is easier to coerce a child than an adult — even unintentionally.  These principles date back to Supreme Court cases like Haley v. Ohio (1948), Gallegos v. Colorado (1962), and In re Gault (1967).  But unfortunately, state courts often disregard these principles, admitting kids’ confessions without any special care whatsoever – even in cases where the confessions were later proven false.  This is precisely what happened in the case of Brendan Dassey.

As the Petition for Certiorari explains, “The Wisconsin Court of Appeals’ departure from this Court’s precedent is no isolated incident. Since this Court decided Gallegos, Gault, and Fare, lower courts have often failed to follow those decisions. The consequences of those failures have been illustrated not only by research (discussed above) demonstrating how vulnerable juveniles and intellectually disabled persons are to police interrogation tactics, but also by data on wrongful convictions resulting from false confessions. Certiorari is warranted here not only to reaffirm this Court’s holdings (and lower courts’ obligation to follow them), but also to provide guidance on how to apply those holdings so as to minimize false confessions—which not only lead to innocent people being jailed but also leave the perpetrators free to victimize others.”

In 2016, a Wisconsin federal court overturned Brendan’s conviction, finding that his confession had been unconstitutionally coerced. That ruling was upheld on appeal by a panel of judges from the United States Court of Appeals for the Seventh Circuit, but the full Court of Appeals reheard the case and narrowly reversed the lower court’s decision to grant a new trial by a 4-3 vote. In dissent, three judges – including Chief Judge Diane Wood – called the reversal a “travesty of justice.”

Brendan’s case is a particularly good vehicle for the Court to provide guidance on the interrogation of children and intellectually challenged individuals, because his entire interrogation was videotaped.

Please see these clips here that illustrate the unreliability of the confession described above.

One noteworthy excerpt from the interrogation video shows Brendan Dassey guessing several different ways in which one might be murdered, none of which actually occurred in this case.  At one point, police – who knew that the physical evidence proved the victim had been shot in the head – tried to help him find the right answer by suggesting, “Come on, Brendan. Something with the head” – to which Brendan responded by saying that the victim had had her hair cut.  Finally, the frustrated officers gave away the right answer: “I’m just going to come out and ask you. Who shot her in the head?”  Brendan agreed that his uncle had done that – and, when asked why he hadn’t mentioned that before, replied: “Cuz I couldn’t think of it.”

The case has drawn several strong amicus briefs asking the Supreme Court to review this case from:

(1) The nation’s leading mental health authorities (the American Psychological Association, American Psychiatric Association, and related professional organizations).

(2) A large group of respected and, in many cases, high-ranking current and former prosecutors.

(3) The nation’s second-largest company that trains police how to interrogate juveniles. The company uses the Brendan Dassey case as an example in training of how not to interrogate juveniles.

(4) The Innocence Network (an amalgamation of the Innocence Projects around the country) and fifteen individuals who falsely confessed to murder as teens, were wrongly convicted, and spent years in prison before being exonerated.

(5) A dozen of the nation’s leading juvenile law experts, including the Juvenile Law Center.

(6) A group of the country’s most renowned criminal law professors.

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