With the en banc hearing in the case of Making a Murderer subject Brendan Dassey in the books, the now 27-year-old’s fate is in the hands of the Seventh Circuit Court of Appeals.
And although Dassey’s lawyer made one argument in his petition for habeas corpus relief, it is likely that the panel of seven judges only wrestled with one Tuesday to determine if the lower court was correct in overturning his murder conviction. And that is the whether Dassey was intellectually deficient enough for his will to have been overborne by police when he confessed to murder in 2006.
Northwestern University professor Laura Nirider, who made a similar argument earlier this year in front of a three-judge appellate panel, claimed Dassey at 16, fell into the category of mentally deficient people who require special care in police interrogations. But, she said investigators Tom Fassbender and Mark Wiegert disregarded Dassey’s cognitive limitations, but instead used a series of false promises of leniency to psychologically coerce him into parroting facts they fed to him to fit an already established narrative about how Teresa Halbach was killed.
Nirider also claimed that Dassey was misrepresented by his first lawyer, Len Kachinsky, who, during pre-trial proceedings, was accused of also working for the interest of the state. That, Nirider claims, played a role in an unconstitutional verdict, violating Dassey’s Sixth Amendment right to counsel and an impartial jury. Judges only broached the Sixth Amendment claim, Tuesday, and centered most of their questions on the confession, which Nirider said violates Dassey’s rights under the Fifth and Fourteenth amendments. That means the panel likely deferred to whether he was as cognitively challenged as his attorney claims.
Deputy Solicitor General Luke Berg argued the case for the State of Wisconsin, telling the court Dassey was fully aware of what was transpiring during those questioning sessions, and that although police “nudged” him toward an eventual confession, he voluntarily admitted to his role in Halbach’s murder.
“They warned Dassey [that] he could leave at any time,” Berg said, “and that anything he said could be used against him. They repeated that warning throughout.”
But Dassey did not remain silent or chose to end the interviews. The teen continued to talk. And by March 1, 2006, a guilt-ridden Brendan could no longer bear its weight, Berg said.
Not so, Nirider said. Dassey ‘s low IQ and deficient intellect prevented him from recognizing that he was implicating himself in a brutal crime. She cited his inability to spell simple words like “agent,” “garage” and “rack,” tell-tale signs Dassey was not like other 16-year-olds.
Dassey also took the idiom, “The truth shall set you free,” uttered to him by Wiegert, literally, further muddying his ability to understand the ramifications of what was transpiring during what would be a more than three-hour interrogation without his mother or a lawyer present, Nirider said.
During those three hours, however, Dassey was not mistreated by police, as noted by Judge Michael Kanne, who directed his questioning at whether Nirider based her petition for relief solely on Dassey’s IQ, which from early childhood to his teens ranged from the low 70s to mid-80s.
Kanne also noted law enforcement’s legal use of deception, strongly evident in Dassey’s interrogation.
“They can bluff,” Nirider said of the police. “But, they cannot so distort his rational will.”
For Dassey’s confession to be considered unconstitutional, it must pass a standard of review set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The act stipulates in the U.S. Code that the case must be in violation of clearly established Supreme Court law and that the confession is so blatantly coercive that no reasonable judge would admit it into evidence.
Citing the Supreme Court case Miller v Fenton, Nirider said the totality of Dassey’s case meets the AEDPA standard, and that the Wisconsin courts got the facts wrong in 2010 and 2013, when it upheld the conviction, prompting a petition for relief in federal court.
“This is a very fact-bound case,” Nirider said. “There was an unreasonable determination in the facts…, and I would also imagine the facts in this case are unlikely to recur. I take issue with the state court’s finding that there were no promises of leniency made to this defendant which is what the district court identified as an error.”
Berg challenged Nirider’s AEDPA claim, saying the U.S. District Court did not have the power to overturn the conviction, a 2007 verdict reached in Calumet County, Wisconsin.
“The whole point of AEDPA is to prevent the second guessing of juries,” he said. “State courts, a decade later, a district court and a panel majority did exactly that.”
Judge Frank Easterbrook was the only judge who did not speak during Tuesday’s hearing, leading to speculation that he cast the deciding vote. Chief Judge Diane Wood, Ilana Rover, and Ann Claire Williams are expected to uphold the district court’s ruling. Kanne and Diane Sykes are likely to dissent, as Hamilton did on the three-judge panel. Rovner and Williams were the other two who heard the case in February and decided that not only was Dassey’s confession coerced, it was pieced together from more than one version of the crime the state led him to.
The judges convened privately following Tuesday’s hearing. A vote was cast but a decision won’t be known for several months.
[Featured Image by BCFC/Thinkstock]