All eyes on 7th Circuit over Dassey ruling



07.26.2017 by @51kikey

The 3 Judge panel from the 7th Circuit Court recently voted as to the admissibility of US District Magistrate Judge William Duffin’s ruling for Habeas relief relating to Brendan Dassey’s confession. We know the count was 2-1 in favour of Dassey. It is important to note that this 2-1 vote was in relation to the validity of the confession and not based on other factors raised by Dassey’s defence team such as ineffective counsel. I’m going to focus on Judge David Hamilton’s reasons for dissenting which begin on page 105 of 7th Circuit’s response to the State’s appeal.

Hamilton Dissent Beginning on Page 105- 7th Circuit Dassey Decision

Okay, don’t panic my head hurts too. Judge’s rarely waste words. If it’s there it’s meant to be and there is a specific reason for it. It’s all too easy to just read these documents fast and loose. It’s a mistake to do so. The devil is in the detail like someone once said. Hamilton opens up Dassey’s persuasions.

‘HAMILTON, Circuit Judge, dissenting. Brendan Dassey confessed on videotape that he raped Teresa Halbach, helped his uncle murder her, and then burned her body in a fire pit at his uncle’s junkyard. A jury convicted Dassey of those crimes, and the Wisconsin state courts have upheld the convictions. On federal habeas corpus review, however, Dassey has persuaded the district court and now my colleagues that his con‐ fession was involuntary and his convictions invalid. I respectfully dissent. We should reverse.’

Okay, we have Hamilton stating that his colleagues have been persuaded that Dassey’s conviction is involuntary. It would appear to me that the involuntary part of this comes from false promises made to Dassey from Tom Fassbender and Mark Wiegert. It could be argued that they threatened Dassey that if he did not tell the(ir) ‘truth’ he would never get out of the interrogation room. The irony being palpable I would still lean towards false promises being their main reasoning.

‘The Wisconsin Court of Appeals upheld the trial court’s finding that Dassey’s confession was voluntary in a succinct per curiam opinion that rejected that claim in two paragraphs. That was permissible.’

Legally permissible perhaps but showing arrogance in my opinion. Perhaps succinct in Hamilton’s. The next section is long but holds tightly within it Hamilton’s mindset.

‘Habeas relief from state court convictions is rare, reserved for those unusual cases where state courts abandon their obligation to enforce federal constitutional law. See id. at 102–03 (“If [the AEDPA] standard is difficult to meet, that is because it was meant to be. … Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.”) (citation omitted). No Su‐ preme Court precedent compels relief for Dassey. His petition should be denied. Rather than show how Supreme Court precedent requires habeas relief, the majority observes: “By surveying the Supreme Court cases on the voluntariness of juvenile confessions one can see how much the unique characteristics of both the defendant and the interrogation play into the assessment of voluntariness.” Ante at 36. For this reason, the majority writes, “other cases can only act as broad guideposts.” Id. That is exactly right, but that is also why we should reverse. Without a compelling showing based on Supreme Court precedent, habeas relief must be denied.’With Habeas relief being so rare at  State level it is not remotely surprising that case law is far less than abundant at an elevated Supreme Court level.’

It strikes me that perhaps reform is a dirty word in Hamilton’s dictionary. How can things change and improve without precedent? Lessons learned can only come about because of change in approach. Failure is a precursor to success and with it a prerequisite. A dogmatic approach can only lead to the stagnated judicial system that is and has been in place for too long. For me, Hamilton looks at the system and its fear of change over the individual. A backward way of thinking in my opinion. Hamilton’s statement below adds further to this.

‘Even if we were reviewing the admissibility of Dassey’s confession de novo, great caution would be warranted. The majority’s decision breaks new ground and poses troubling questions for police and prosecutors. It calls into question standard interrogation techniques that courts have routinely found permissible, even in cases involving juveniles.’

Yes, courts have routinely found ‘standard interrogation techniques’ permissible, this is the problem. I sure wouldn’t like to see those non standard techniques. Hamilton is quick to draw his line in the sand. Dassey is guilty. Guilty because of his confession seeing as there is no other evidence.

‘My colleagues describe the critical March 1, 2006 interview of Dassey as “intimidating and anxiety producing.” Ante at 83. I suspect the source of any anxiety Dassey felt was his guilt, not the circumstances of a relatively gentle and non‐coercive interview.’

To the point, which is good. Okay, it’s clear from this that Hamilton does not believe this to be a coercive interview. So with all due respect to Hamilton he believes that Dassey’s statement to Law Enforcement were all freely self determined? This worries me.

‘Many other factors weigh in favor of finding it was voluntary. The circumstances that have most concerned courts and that have contributed most to voluntariness jurisprudence—such as physical abuse, threatening behavior, or prolonged questioning—were simply absent here.’

Respectfully Judge Hamilton, the world should move on. If you honestly believe the only way to gain a false confession is to ‘bad cop’ the living daylights out of someone you need to go back for more education like many others involved in this case. Hamilton addresses Fassbender and Wiegert’s techniques whilst interrogating Dassey. Specifically their repeated ‘truth’ suggestions.

‘Never before has the Supreme Court or this court signaled that police bluffs about what they know may render a confession involuntary. Neither the Supreme Court nor this court has ever held, as the majority seems to believe, that an investigator’s vague assurances about the value of telling the truth may amount to fraudulent promises of leniency. Nor have we held that such statements must be viewed from the subjective perspective of the suspect, no matter how distorted his per‐ spective may be.’

Hamilton talks of ‘police bluffs’ and ‘vague assurances about the value of telling the truth’ not amounting to fraudulence. Whilst in essence true this should not be unilateral. The Judge’s final sentence perplexed me for its sheer lack of humanity.’Nor have we held that such statements must be viewed from the subjective perspective of the suspect, no matter how distorted his perspective may be.’

Well hell, I’m not sure I want somebody caring for my bonsai tree with a chainsaw. One thing I can tell you Judge Hamilton is that the Supreme Court certainly does require ‘special  caution’ when accessing the voluntariness of juvenile confessions. The distortion is from within yourself and not that of Brendan Dassey. With regards to this, you are for want of a better word simply wrong.

‘In one telling departure from AEDPA deference, the majority cites a law review article to observe: “Experts on confessions have noted that ‘though courts are reluctant to find that police officers have overwhelmed a child’s will by repeatedly admonishing the child to “tell the truth,” many children will eventually hear “tell the truth” as, “tell me what I want to hear.”’” Ante at 55‐56 (citation omitted). The majority then suggests that “Dassey found ‘the truth’ either by stumbling upon it or by using the information the investigators had fed him,” and asserts boldly that it is “impossible to read or view Dassey’s interrogation and have any confidence that Dassey’s confession was the product of his own free will rather than his will being overborne.” Ante at 56. The majority invites the reader to scrutinize Dassey’s confession with this “key” in hand. I read (and see) the evidence quite differently: Dassey’s confession appears to have been the product of a guilty con‐ science, coaxed rather gently from him with standard, non‐ coercive investigative techniques.’

Hold on;

‘Dassey’s confession appears to have been the product of a guilty conscience, coaxed rather gently from him with standard, non‐ coercive investigative techniques’.

I’m sure Mark Wiegert stated ‘Who shot her in the head Brendan?’ after some hours of ‘gentle’ coaxing hadn’t got the answers he so desired…. actually I know he did. It’s on tape to view unlike other parts of the interrogation Judge Hamilton.

Throughout the next few pages of Hamilton’s response to the State’s appeal, previous cases are cited as to why precedence should not be taken with regard to Dassey as to an involuntary confession. From my reading of this there is a clear reason. The Circuit Courts and in turn the Supreme Court are loath to set precedent. Although I wish for Dassey’s timely release, cases such as this need to be heard from SCOTUS down. Otherwise the system never changes and reform cannot come about. Hamilton cited an example that read,

‘In Carter v. Thompson, 690 F.3d 837, 839 (7th Cir. 2012), we denied relief to a habeas petitioner who at age sixteen en‐ dured an interrogation lasting fifty‐five hours in total. During gaps in the interrogation, the petitioner slept on a bench, with‐ out a pillow, a blanket, or a change of clothes. Id. at 841; see also Murdock v. Dorethy, 846 F.3d 203, 210 (7th Cir. 2017) (deny‐ ing relief to sixteen‐year‐old who was interrogated over seven‐hour period); Gilbert, 488 F.3d at 784–86 (denying relief to fifteen‐year‐old who was kept from his mother and inter‐ rogated over nine‐hour period); Hardaway v. Young, 302 F.3d 757, 766 (7th Cir. 2002) (denying relief to fourteen‐year‐old who was interviewed over sixteen‐hour period and aban‐ doned for lengthy intervals in interrogation room)’.

Granted, I do not know the full details of this case but the use of this example came across as ‘There was no concession here so do you believe you should be re-evaluated?’ This worries me. I have been highly critical of Judge Hamilton during this evaluation and by no means shall I be changing tack now. However, perhaps it is time to take a step back and look to the horizon for a little more perspective. Hamilton’s dogmatism is clearly born from the law of the land itself, from the Supreme Court down. Often I find it hard to locate the individual within the position that he holds and herein the problem breeds. Hamilton’s reticence over setting precedent suffocates the possibility of change regarding juvenile confessions. Past case law will forever be applied unless updates in techniques and understanding is taken on board and utilised.

Sometimes the t-shirt just doesn’t fit anymore. Understanding evolves and so must the judiciary system, and with it practices nearer to the origins such as Law Enforcement procedure. Can Law enforcement interrogation techniques be improved? Sure, and with that it can certainly be augmented in terms of specificity to the person involved. I realise that the Supreme Court advises ‘special caution’ when assessing the voluntariness of juvenile confessions but there does not appear to be a great deal of case law to back this up filing down from the top. I shall come back to this during conclusion with regards to Brendan.

Back to DH’s assessing of the 2 votes in favour of Dassey.’Having replaced deference to the state court with what amounts to de novo review, and having redefined what counts as a false promise of leniency, the majority evaluates Dassey’s confession in the light most favorable to him. The majority opinion highlights the moments when Dassey seemed most hesitant or ambivalent.’

Indeed it is quite clear that Judges Rovner and Williams strongly disagree with the State’s interpretation of the confession but to say; Having replaced deference to the state court with what amounts to de novo review, and having redefined what counts as a false promise of leniency smacks of arrogance and will no doubt render Hamilton with the squeaky chair in the office. Yet again Hamilton vehemently argues that precedent must not occur because it has not done before. For him though his comments become flaccid as clearly reform does indeed need to take place.

The final few pages of Hamilton’s response deal with Dassey’s ‘specific’ and ‘incriminating’ responses to Fassbender’s and Wiegert’s questions. Hamilton does not offer any bridge between physical evidence and confession. He asserts that Dassey stabbed Teresa Halbach in the stomach ‘ a detail he repeated several times.’ inferring that because of this it be voluntary and in turn the truth. The simple fact that the physical evidence strongly refutes these turn of events and that physical evidence should be considered foremost over that of a confession appears to escape Hamilton. Citing that the remains can offer no evidence to this occurring because ‘The condition of Teresa’s remains made it impossible to confirm or refute that fact.’ begs the question. Avery’s trailer still remained though didn’t it? The crime scene itself. Hamilton concludes;

‘All agree that the governing constitutional standard for the voluntariness of a confession depends on the totality of the circumstances. The state courts recognized that standard and applied it reasonably to the facts before them. As in most cases on voluntariness of confessions, relevant factors point in conflicting directions. A few factors and passages from Dassey’s confession support the majority’s view that the con‐ fession was not voluntary. Many other factors and passages support the state courts’ view that, overall, the confession was voluntary. The Wisconsin Court of Appeals could have been much more thorough in its discussion, but its conclusion was within the bounds of reason. It was not contrary to or an un‐ reasonable application of controlling Supreme Court prece‐ dent. We should reverse the district court’s grant of the writ of habeas corpus.’

Hamilton’s acknowledgement to the fact that the many outweigh the few with regards to Dassey’s voluntariness of confession is of no surprise and we are left with a very clear cut 2 in favour and 1 not so. Due to this I wonder if it will have any bearing on the en banc decision.I’m well aware that this is rare and not often undertaken, but I am also aware of the publicity that this case has rendered and the ability for it to stir the public’s imagination. Kathleen Zellner’s use of Twitter has often been derided, especially by those within the legal fraternity. Clearly, many employees within that system would rather a closed shop. After all, what has the legal system got to do with the people?! I believe Zellner’s use of Twitter engages the public and for that I think it’s a big step in the right direction. The public should take an interest as even a basic level of knowledge across the board will help evoke change within the justice system.

Lastly and somewhat controversially I want to go back to Brendan and where his case stands at the moment. I want Dassey home as quickly as possible and every day that he remains behind bars prays on my mind I can assure you. At the same time though I want change and whilst the decision at Circuit Court level has set precedence and with it citation in common law I believe and want a case such as this to go further. I would welcome the Supreme Court to hear this inevitable appeal. Naturally I want Brendan released on bond until this could occur as likely it would be some ways down the road. Most, if not all of us have gone through a myriad of emotions when following Brendan and his case. Sadly the bottom line is that Dassey is just one of hundreds if not thousands of cases bearing similarity. It is not just those that have already been convicted by asinine LE procedures and outdated case law and judges, but those that could be in the future.

Cases in the spotlight such as this do not come along often and because of that the chance of reform at the highest level needs to be taken.


  • mm
    James Didcock


    Writer at Non profit organisation detailing Justice Reform and Environmental Issues. Get involved and make a difference.

  • Show Comments (7)

  • Paul Capaldi

    Clearly, Hamilton has another agenda.
    But sadly, as with several other “big knobs” in this case , he has desire to seek, or need of the truth.
    “If it ain’t broke, don’t fix it” is an appalling attitude.
    It is broke and it does need fixing.
    What world are you living in, Hamilton ?

  • Paul Capaldi

    He has no desire to seek

  • Paul Petersen

    Nice summary. I believe that in time, thanks to Kathleen Zellner, the truth of who, what, where, when and why of this murder will come out. It will have nothing to do with Brendan Dassey thereby proving the confession to be 100% coerced. At this time, Hamilton will need a spatula to get all the egg off his face.

  • Michael Buie

    As far as I can see there is no precedence to support Dasseys case- but there SHOULD BE – Hamilton needs to find another line of work, human beings are at stake here. Perhaps the US Supreme Court will hear the case and make a ruleing that will apply to ALL STATES EQUALLY- then maybe the railroad techniques will cease.

  • Jenny Wylde

    A size 15 boot would be better!!!!!

  • Debra Sullivan

    Considering the lack of evidence implicating Brendan, Hamilton’s interpretation is very worrying. Is he just picking and choosing, because he doesn’t seem to be looking at the whole picture? It’s interesting when you see people who you assume to be wise, actually sharing the same characteristics as those who are much less wise.

  • Jay Dee

    Kudos to the writer of this excellent piece. I often muse about whether judges do any required reading or simply look for the easy way out. Although Hamilton seems to acknowledge some information in the transcripts, his thoughts seems to lack the expected back and forth in a case that exposed both a defense and a prosecution, not JUST a prosecution. What’s further troubling is Hamilton’s comment on Brendan’s guilt, “guilty conscience”, a conclusion that none of the judges were asked to review. The hearing was about the confession, not someone else’s perceived guilt. That alone provides that Hamilton was prejudiced from the start and was always going to dissent.

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