Analysis of Federal Relief of Dassey’s Habeas Petition

Dear Readers:

This past week was quite a week in the legal world. No sooner had I (finally) posted my take on Making a Murderer and the Steven Avery and Brendan Dassey cases than U.S Magistrate Judge William Duffin had granted Dassey’s habeas petition. The news dropped while I was having drinks with my brothers-in-law prior to my stepsister’s wedding rehearsal dinner.  I was a bit shocked it was actually granted given the obtuse nature of the state courts’ handling of the case at every level and the fact that habeas petitions are only successful about 1% of the time.

Before turning in Friday night, I found the decision and order in its entirety and read through all 91 pages (find the document here). This document was a pleasure to read. I laughed out loud a few times. The judge shows proper respect to all parties involved and does not assign ill intent, yet he manages to eloquently spank just about everyone. Those familiar with legal language will recognize how forceful some of these rebukes are.

The first 43 pages are not necessary reading unless you have no prior or extensive knowledge of the case – it is just briefing material. Page 44 is where the important information begins. There, the judge begins to lay out the framework for how a decision could be reached. He cites the relevant framework, noting that applicable federal laws and Supreme Court decisions make granting of habeas relief a very rare occurrence. Essentially, the judge points out that habeas relief may only be granted in two instances:

  1. The state courts essentially failed to follow the U.S. Constitution, existing federal law, and U.S. Supreme Court precedent when ruling on a case.
  2. The state court decisions, while following existing federal precedent, failed to make reasonable determinations about the facts in light of that precedent.

To further simplify: the state courts either violated federal law and the constitution or came to objectively unreasonable decisions given the facts of the case.

The judge lays out why habeas relief is so difficult to obtain. It may not be granted just because the federal courts disagree with a decision. It may not be granted due to minor errors or procedural issues – essentially providing great deference to appellate courts. It may not be granted just because public opinion favors it.

Quoting from page 47, he cites the following (emphasis is mine):

“Federal habeas review thus exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.’” Id.(quoting Richter, 562 U.S. at 102-03).

Remember that phrase: “extreme malfunctions in the state criminal justice systems.” That will be important.

The judge next lays out Dassey’s claims for relief. The two claims are:

  1. He was denied his Sixth Amendment right to effective assistance of council.
  2. His March 1, 2006 confession was involuntary and a violation of his Fifth Amendment rights.

Ineffective assistance of council

The judge covers this claim in detail, but the important points are easily lost in the language. Essentially, the judge refuses relief under this claim for two reasons:

  1. The request for relief cites the Sullivan decision rather than the Strickland decision, thus allowing a more forgiving standard for attorney conduct (less likely to result in relief).
  2. The state appellate court’s decision was not technically incorrect under the Strickland standard (which was cited on appeal).

More simply, had Dassey’s appellate attorneys cited Strickland instead of Sullivan and operated under that framework, relief might have been possible. This is a bit like my favorite saying about computers: Computers do what you tell them to do, not want to you want them to do. The court won’t just make that leap of logic for you. This was a tactical error by Dassey’s appellate attorneys in crafting the writ. The judge gently chides them for not citing the relevant case.

So there will be no relief granted under this claim, but the judge has many things to say about Dassey’s representation, summed up by the following from page 50 (emphasis is mine):

Although it probably does not need to be stated, it will be: Kachinsky’s conduct was inexcusable both tactically and ethically. It is one thing for an attorney to point out to a client how deep of a hole the client is in. But to assist the prosecution in digging that hole deeper is an affront to the principles of justice that underlie a defense attorney’s vital role in the adversarial system.

“Them’s is fightin’ words!” That is some pretty incendiary language given the overall eloquence and deference the judge demonstrates in his prose. He acknowledges how egregious this is, but ultimately that alone is not enough to grant relief.

Involuntariness of confession

The judge then moves on to address the second claim for relief on page 60. The claim is that Dassey’s confession was involuntary under the Fifth Amendment, federal law, and Supreme Court precedent. The judge lays out how he understands the Wisconsin appellate court decision that refused to overturn the conviction. He then discusses the interrogation in great detail. He then cites relevant cases and why or why not relief was granted.

As previously mentioned, he discusses the actual interrogation in exhaustive detail. I think that part of the document rises to a crescendo when discussing Wiegert’s statement that “honesty is the only thing that will set you free.” To those of us with normal faculties and understanding of idiomatic language and pop culture, this statement is innocuous because we recognize it to be a cliche. But, the judge writes on page 82:

And, especially relevant here, testing revealed that idioms were an aspect of abstract language that Dassey had difficulty understanding.

The judge argues that, when one combines Dassey’s limitations with the nature of the interrogation (“totality of the circumstances”), the entirety of the confession was clearly involuntary under all applicable federal standards and, more importantly, common sense and reason.

In short, he acknowledges that the appellate court’s decision was not incorrect if one takes any individual part of the federal standards for voluntary confessions into account. Any one statement in isolation does not imply coercion. However, he takes issue with the kind of tunnel-vision and cherry-picking used in reaching that decision.

Thus, the judge grants relief on the basis that the appellate court was unreasonable in finding of fact pursuant to federal precedent. While being careful to show all due deference to the state courts, he writes the following on page 89:

Once considered in this proper light, the conclusion that Dassey’s statement was involuntary under the totality of the circumstances is not one about which “fairminded jurists could disagree.”

That is a British Questions for Parliament-style smackdown. He basically states that the state appellate court was both incorrect AND unreasonable in ruling that the confession was voluntary. That jibes with what anyone who watched any part of it in Making a Murderer or elsewhere concluded.

The salient sentence in granting relief is as follows on page 88:

While the circumstances for relief may be rare, even extraordinary, it is the conclusion of the court that this case represents the sort of “extreme malfunction[] in the state criminal justice system[]” that federal habeas corpus relief exists to correct.

Whoa, baby. I think that one is pretty clear, and I told you it would be important above. Ultimately, the judge grants relief while also mentioning that he does not “ascribe any ill motive to the investigators.” (page 88) He walks the line between stern rebuke and respectful deference at all times, which is no easy task.

The actual order details that Dassey is to be released within 90 days unless the State appeals the grant or makes the decision to retry the case. One hopes that the State is smart enough to take its chips and walk away from the table. Nothing good can come from retrying this case in the wake of the sheer ubiquity of people’s knowledge of it. It will be impossible to get an impartial jury at this point regardless of the other tactical issues involved.

So that’s it. We’ll keep an eye on the case. What do you think? Does the judge’s decision make sense to you?

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