Late last week, a federal judge in Wisconsin overturned the murder and sexual assault convictions of Brendan Dassey, and ordered his release from prison unless prosecutors schedule a new trial within 90 days. Dassey and his uncle, Steven Avery, were convicted for photographer Teresa Halbach’s 2005 murder and sentenced to life in prison, but their case became the subject of international attention thanks to the Netflix docuseries Making A Murderer. At the time of Halbach’s murder, Avery was just two years out of prison after serving 18 years for a rape he did not commit, and was on the brink of winning a $36 million lawsuit against Manitowoc County and the Manitowoc County Sheriff’s Department. The documentary gave credence to the theory that Avery might have been framed for Halbach’s murder in order to thwart the lawsuit.
The federal court’s unexpected and rare decision to overturn Dassey’s conviction is a massive win for the now 26-year-old, because unlike the case against Avery, which is full of physical evidence – contested though it may be – the only thing prosecutors had that linked Dassey to Halbach’s murder was his involuntary confession. However, prosecutors never called Dassey to testify at Avery’s trial, nor did they use his confession as evidence against Avery in court, so its suppression won’t have any immediate impact on Avery’s case. However, it stands to wonder whether the timing of this decision in Dassey’s favor, especially after all his state appeals had been denied, is a sign that the Wisconsin county’s beef with the Avery family is losing ground.
“This recent news shows the criminal justice system at work,” Making A Murderer directors Laura Ricciardi and Moira Demos said in a statement following the Dassey decision. “As we have done for the past 10 years, we will continue to document the story as it unfolds, and follow it wherever it may lead.” Last month, the pair announced production on a second season focusing on the post-conviction process. One source tells Rolling Stone that they began filming last week.
While Avery’s guilt or innocence continues to inspire heated debate, there has been near universal agreement among viewers and legal experts that Dassey, then 16, is innocent, and had been coerced into giving a false confession which also implicated his uncle. Last week, Judge William E. Duffin of the Eastern District of Wisconsin agreed, writing in his 91-page ruling that the police made false promises to Dassey, who had an I.Q. of 76, rendering his confession involuntary.
“The investigators repeatedly claimed to already know what happened on October 31st and assured Dassey that he had nothing to worry about,” Judge Duffin wrote, finding in favor of the defense’s writ of habeas corpus, originally filed on October 20th, 2014. “These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments.”
Laura Nirider, one of Dassey’s lawyers from the Wisconsin Innocence Project, told the Associated Press that her client “is in shock and wants to go home.”
Judge Duffin’s ruling denied relief on a second issue raised by Dassey’s appellate counsel – that Dassey’s pre-trial attorney, Len Kachinsky, “labored under a conflict of interest” by working with investigators and the prosecution to gather evidence against Avery to the detriment of his client’s case. Though he called Kachinsky’s conduct “inexcusable both tactically and ethically,” Duffin wrote that he would be overstepping his bounds as a federal judge by setting a new standard for what’s legally considered a “conflict of interest.”
Attorneys for Dassey have been arguing that his confession was involuntary since August 2006, after Kachinsky was finally dismissed by Manitowoc County Judge Jerome Fox for arranging a private meeting between Dassey and investigators. The public defender who took over Dassey’s case filed a motion to suppress Dassey’s confession, but Judge Fox denied that motion, and also denied Dassey’s appeal on this issue in 2010; the Wisconsin Court of Appeals upheld Fox’s ruling in 2013 and the Wisconsin Supreme Court declined to hear Dassey’s case shortly thereafter. Duffin’s decision takes the incredibly rare position that all three State courts were wrong.
“It’s incredibly rare that federal habeas corpuses are granted,” Erica Suter, an appellate and post-conviction relief attorney tells Rolling Stone. “With a federal habeas, you’re not raising new claims — you’re just litigating things that you already raised that you’re saying were decided incorrectly. When a court sees that a jury found a person guilty, the inclination is to want to leave that conviction intact”
Dassey was brought in for questioning by investigators months after Avery had already been arrested and charged. Between February 27th and March 1st, 2006, Dassey was questioned four times by Detectives Mark Wiegert and Tom Fassbender from the Calumet County Sheriff’s Office, which ran the investigation after the Manitowoc County Sheriff’s Department was recused due to their conflict of interest as defendants in Avery’s civil lawsuit. While Dassey’s mother (and Avery’s sister) Barb Janda was aware that the police were interrogating her teenage son, she said that detectives discouraged her from being in the room; Dassey’s attorney, Kachinsky, also was not present.
During Dassey’s fourth videotaped interview with police on March 1st, 2006, Wiegert and Fassbender lied to Dassey and said that they knew “pretty much everything already,” assured him they were on his side and that “we’ll stand behind you no matter what you did.” They also told him “[h]onesty is the only thing that will set you free,” a slight tweak on the idiom “the truth will set you free.” Judge Duffin specifically notes in his opinion that although the phrase is “routinely understood not to be taken literally… some courts have criticized its use by interrogators… [and] testing revealed that idioms were an aspect of abstract language that Dassey had difficulty understanding.”
“I thought it was unusual for the judge to point out the nuances of that statement ‘the truth will set you free,'” Suter says. “He writes that given Dassey’s particular proclivities, he struggles with understanding idioms, and that this would be much more misleading to him that someone who doesn’t have the same learning disabilities.”
And the “truth” Dassey set free on March 1st, 2006 under intense interrogation by Wiegert and Fassbender was to slowly, bit by bit, “confess” to the rape, murder, and mutilation of Halbach in a series of short, hushed responses to Wiegert and Fassbender’s persistent probing. They pushed Dassey for further details by repeatedly telling him that they already knew what he had done and that he had to stop lying or they couldn’t help him. And so, Dassey would later claim, he made things up.
For the most part, the detectives were using the Reid technique, a controversial but oft-practiced interrogation style focused on reading non-verbal cues for signs of lying in order to wear down a suspect’s psychological resistance. While the Reid technique is known for eliciting confessions, researchers have concluded that many of them turn out to be false, as the suspect ends up saying whatever is necessary to simply get out of the room.
Initially, Dassey told the investigators that Avery showed him Halbach’s body in the back of her RAV4, having already raped and stabbed her; he said he helped his uncle burn the body. Unsatisfied, Wiegert and Fassbender continued to push Dassey until he admitted to also raping Halbach while she was handcuffed to Avery’s bed and watching as Avery stabbed her in the stomach. By this point in the investigation, the detectives knew Halbach had been shot at least once in the head, so they hammered away at Dassey about “what else happened to her head” in hopes of getting him to corroborate this final detail. After Dassey refused to bite – instead, he told them that Avery cut Halbach’s hair – Wiegert outright asked, “Who shot her in the head?” to which Dassey responded, “He did.”
Feeding Dassey information about the case as Wiegert did here is contamination, but their persistence in digging for more information with claims they can “tell” Dassey is lying is classic Reid. This intense interrogation tactic can wear down even the most mentally competent adult, so Dassey was especially vulnerable, and his behavior throughout indicated he had no idea how dire his circumstances were.
Despite having recounted his own alleged participation in a brutal and bloody rape and murder, Dassey repeatedly asked the detectives how much longer he would be at the station, telling them he had a project due at school that day. When Wiegert finally informed Dassey that “because of what you told us, we’re gonna have to arrest you.… And so you’re not gonna be able to go home tonight,” Dassey still did not grasp the severity of his situation. “Just for one night?” he asked. Brendan Dassey has not been home since.
“Dasseyf’s conduct during the interrogation and his reaction to being told he was under arrest clearly indicate that he really did believe that, if he told the investigators what they professed to already know, he would not be arrested for what he said,” Judge Duffin wrote in his judgment granting Dassey relief.
“One thing I think is interesting that the court goes out of its way to point out is that the judge does not conclude that there was any ill motive or intentional misconduct on the part of the police who interrogated Dassey,” Suter remarks. “I think that observation is especially interesting given all of the allegations of corruption in this case.”
The state has 90 days to appeal the ruling to the federal Seventh Circuit Court of Appeals, in which case, Duffin’s judgement will be stayed – the legal equivalent of hitting ‘pause’ – and Dassey will be in limbo, and still in prison, until the Seventh Circuit weighs in. So while Dassey’s family and supporters are right to celebrate, it might be awhile before he can join the party.
Regardless, the renewed buzz around the case won’t be dying down anytime soon. Attorney Kathleen Zellner, who took on Avery’s case in January, was granted an extension for filing Avery’s appeal, which is now due by August 29. For the last seven months, Zellner has been uniquely vocal about the exhaustive steps she has taken to prove her client’s innocence. She’s tweeted numerous accusations that police planted evidence, hinted at possible alternative suspects and alluded to new evidence that proves Avery couldn’t have killed Halbach. With 17 exonerations under her belt, Zellner has pledged to make Avery her 18th and has said there will be no need for a retrial. Unless Zellner has suddenly become all bark and no bite, the brief she files at the end of the month is expected to be a jaw-dropper. No wonder Making A Murderer‘s cameras have already started rolling on season two.
Judge Duffin has had Dassey’s appeal on his desk for over a year, so it’s hard not to wonder if the timing of his decision was at all influenced by the fact that Zellner’s torpedo would be landing in full view of Netflix’s cameras two weeks later. Perhaps it’s an innocent coincidence, or the buzz about season two merely reminded Duffin he still has a decision to make. Still, there were very few heroes in Making A Murderer‘s first season, and not a single one among the many law enforcement officers who were featured; the police, forensic experts, prosecutors and, yes, both trial judges earned their fair share of contempt from viewers. Perhaps Judge Duffin was seizing upon an opportunity to kick off season two on a more positive note – and with better PR.
Of course, Dassey’s legal case is also completely separate from Avery’s, as they were prosecuted separately for Halbach’s murder. In fact, Avery was prosecuted first as the sole perpetrator of Halbach’s murder. “One man and one man only” was to blame, Prosecutor Kenneth Kratz memorably declared at Avery’s trial – a stark contrast to the televised press conference he had given following Dassey’s coerced confession the year before, in which he described both defendants raping and murdering Halbach in lurid detail.
After Avery was convicted, Kratz went on to prosecute Dassey for the same crime, using his confession and all of the physical evidence from Avery’s case – none of which could be linked to Dassey – against him. Dassey took the stand and maintained his innocence, telling the jury he had lied to police and that the details of his story were either made up or things he had read in books. The jury still convicted him.
“If a prosecution presents inconsistent and irreconcilable theories to two different juries on the same crime, it’s indisputable that at least one of those trials is not a search for the truth,” Avery’s trial attorney Dean Strang told Rolling Stone earlier this year. “If one narrative is true, the other one can’t be true and if you’re presenting both of them, at least in one of those trials, you’re not on a search for the truth. And a fair question is whether, in either trial, they’re in search of the truth or just two convictions.”
If Duffin’s ruling is appealed and then upheld by the federal appeals court, Dassey’s confession will be officially thrown out and the state, lacking any physical evidence that ties Dassey to the crime, won’t be able to retry him. So, if avoiding a retrial at any cost is the goal, then appealing and crossing their fingers for a win is there only option. And unless the state is scrambling to file their appeal in the next two weeks, Zellner’s appeals brief will be filed first. Suter believes that no matter what Zellner has up her sleeve, it will need to be litigated in court in some way, and thus is unlikely to prevent the state from appealing in Dassey’s case.
However, any new revelations Zellner has about the evidence used at both trials – like proof that Avery’s blood was planted in Halbach’s car – could have an influence on whether the Seventh Court ever gets a chance to weigh in. If, among other things, Zellner is able to show that Halbach’s cell phone records prove she left the Avery Salvage Yard following her appointment, that would create significant reasonable doubt around both convictions, but would all but prove that Dassey – who didn’t have a driver’s license or a car – could not have been her killer. As new evidence like this would provide his attorneys with another avenue to pursue relief, the State of Wisconsin would have a very hard time convincing anyone, least of all the public, that fighting to keep Dassey behind bars is in the interests of justice.
Zellner delivered the good news to Avery, who is “so happy” for his nephew, and she expressed her confidence that his conviction would be overturned as well. “Brendan’s opinion shows cops made up crime story,” she tweeted. “Steven’s will show cops made up crime evidence.” Stay tuned.
