Written by Elizabeth Wurm
Brendan Dassey, who gained national recognition in 2015 from Netflix’s “Making a Murderer” docuseries, is now bringing his story to the U.S. Supreme Court. Dassey’s attorneys, Laura Nirider and Steve Drizin, co-directors of the Center on Wrongful Convictions of Youth at Northwestern’s Bluhm Legal Clinic, recognize the uphill battle that Dassey faces in getting the Supreme Court to grant a petition for certiorari. “But if there ever was a juvenile confession case that the court should hear, this is it,” Nirider commented.
Dassey was convicted in 2007 by a Wisconsin state court along with his uncle, Steven Avery, for the rape and murder of Teresa Halbach. At the time of the murder, Dassey was sixteen years old, had an extremely low IQ, was in special education classes, and had social limitations. At trial, the only evidence used to convict Dassey was a videotaped confession made during an interrogation interview of Dassey by two local police detectives.
In 2014, Dassey’s attorneys filed a federal habeas petition asking the federal court to reconsider the Wisconsin Court of Appeal’s decision upholding the denial of Dassey’s motion to suppress the confession. Dassey argued the confession was involuntary and coerced, and therefore unconstitutional. The videotaped confession, shown in “Making a Murderer,” outraged millions of viewers as they watched investigators subject Dassey to psychological and coercive interrogation techniques. Detectives continuously fed facts and suggestions to Brendan, telling him if he told the “truth,”—which was carefully crafted to only mean what the investigators wanted to hear—he would be free. Eventually, investigators extracted from Dassey a convoluted and internally inconsistent account of him and Steven raping, killing, and mutilating the body of Teresa Halbach. The petition challenges the state court’s failure to properly evaluate the voluntariness of this confession.
I work in the Bluhm Legal Clinic as part of the Center on Wrongful Convictions team and I spoke with Drizin and Nirider regarding their recent petition for certiorari to the U.S. Supreme Court, which was filed on February 20th, 2018. The petition was filed after the Seventh Circuit, sitting en banc, reversed its panel decision and ruled in favor of Wisconsin in December 2017.
Although the loss was a blow, Drizin and Nirider had already discussed the likelihood of a certiorari petition from one side or the other. “We always knew the case was going to end up in the Supreme Court,” Drizin noted. The clinic and its students sprang into action shortly after the en banc decision was issued. Drizin and Nirider knew that at this stage it was critical to add a litigator with experience arguing before the Supreme Court to their team. They immediately thought of former Solicitor General Seth Waxman, who has argued seventy-five cases before the Supreme Court. Waxman and a dedicated legal team from his firm, WilmerHale, worked with Drizin and Nirider to prepare the petition, a process which took about two months. Drizin expressed that the opportunity to work with Waxman and his team, as well as “an amazing group of lawyers who are writing amicus briefs,” has been one of the most exciting aspects of the entire process.
The voluntariness of a confession is determined by evaluating the “totality of the circumstances” surrounding the confession. Seventy years ago, the U.S. Supreme Court declared that the totality of the circumstances calculus in the juvenile context mandates that courts evaluate the voluntariness of juvenile confessions with “special care.”
It has been nearly forty years since the Court last addressed a juvenile involuntary confession case. In his petition, Dassey emphasizes this long gap as well as the advances in social science research demonstrating the prevalence of involuntary confessions by juveniles and people with intellectual limitations. Dassey asks the Court to reaffirm the Court’s holdings in Gallegos, Gault, and Fare, requiring courts use special care in juvenile confessions. “Too many courts around the country, for many years, have been misapplying or even ignoring the Supreme Court’s instructions that confessions from mentally impaired kids like Brendan Dassey must be examined with the greatest care,” said Drizin.
The momentousness of the petition, not only for Dassey, but for countless other juvenile defendants, hasn’t escaped Dassey’s lawyers. “If the Court accepts cert., it will mean that a landmark decision will be issued—the first time the Court has addressed “voluntariness” in a juvenile confession case in almost forty years,” Drizin told me. The Court is expected to decide later this summer whether to hear the case.