Judge Wood: We are now ready to hear our case for this morning Brendan Dassey against Michael Dittman and we will begin with Mr Berg and Mr Berg I have to tell you, that unfortunately, the general services administration turned the power of in this building over the weekend, and they couldn’t get the podium lights to work this morning. So, we will have cards, I think the old fashion way. I’ll be glad to remind you when you get to your rebuttal time, if you would like me to do that?
Luke Berg: I would appreciate that.
Judge Wood: Certainly, so you may proceed.
Luke Berg: Good morning and may I please the court? Brendan Dassey confessed because his guilt became unbearable. What he and Avery did to Teresa was horrific.
Judge Woods: What happened to Teresa was certainly horrific, but isn’t the issue before us, there are two issues I take it, one is whether the confession that you have put together from the various things that Dassey said was from a constitutional point of view, voluntary or to put it more accurately whether the state court determination that it was voluntary was a reasonable assessment uh and secondly the effectiveness of counsel that he received from Mr Kachinsky who was representing the victim’s family it seems so um, no one questions the terrible nature of this murder, how could you? Ah but whether Mr Dassey was responsible for it, or whether he just went after the fire was lit, is a serious question.
Luke Berg: Absolutely the investigators, just nudged the confession out of Dassey.
Judge Wood: They did not, Did you really?
Judge Rovner: Oh my!
Luke Berg: Absolutely they took numerous precautions to protect against Dassey’s….
Judge Wood: What was Mr Dassey’s IQ?
Luke Berg: His most recent IQ test was 83 or 81 at trial, um but the investigators.
Judge Wood: There is some evidence that it was 74.
Luke Berg: That was when he was 7 years old. Ah the next test he took was 76, the next one 78 and the most recent tests when he was 16 or 17 was 83.
Judge Wood: And he was 16 when he was being questioned by the officers?
Luke Berg: That’s right. He was 16 years old, and the investigators took.
Judge Wood: Of limited intelligence.
Luke Berg: Sorry?
Judge Rovner: And the fact that he was ah 16 years old ah what I would like to ask you Mr Berg how is the state appellate courts analysis any different than ah analysis that would be applied to an adult with ordinary intellectual capabilities?
Luke Berg: The court of appeals mentioned Dassey’s age, they mentioned Dassey’s mental capabilities. They quoted the test
Judge Rovner: Well if it’s true that a State court analysis can be that cursory or you know give no reason at all with just mentioning his age.
Judge Williams: Because his age as Judge Rovner is pointing out there is supposed to be special care given to his age in terms of the analysis and so where can you point me to in the decision where we can see that his age was given special care, other than the passing reference?
Luke Berg: The idea that the Wisconsin court of appeals failed to consider a factor that it took care to mention two paragraphs before its analysis strains credulity that’s almost a direct quote from the Supreme Court in Early v Packer, the ninth circuit reversed ah a conviction uh on the theory that the state court hadn’t considered a factor that the ninth circuit had mentioned in its fact.
Judge Rovner: Look what they did, basically was merely mention his age and his low IQ, ah is that sufficient care and caution, where where was the application of the special care standard?
Luke Berg: The court quoted ah the standard directly from the Supreme court, it mentioned.
Judge Rovner: It stated it but, but did it approach it?
Luke Berg: It went through all of what it considered to be all of the relevant factors, it mentioned them briefly that’s true, but that’s the state courts prerogative, courts of appeals frequently do that.
Judge Hamilton: Isn’t it also correct Mr Berg that the state court cited other state court opinions which elaborated on that standard in particular in juvenile cases in more much more detail?
Luke Berg: That’s exactly right, the Wisconsin court of appeals also said it was basing its finding on the trial courts opinion and the trial court was much more thorough, it went through all of the relevant factors thoroughly, ah so this idea that it failed to actually consider the totality of the circumstances is outlandish, quite frankly.
Judge Wood: No, It’s not outlandish at all, this case is very much like Brumfield against Cain from the Supreme Court where somebody with a great number of limitations, ah is pressured and ah a person with a literal cast of mind being told, if you tell us the truth, the truth will make you free, a rather biblical illusion of course we know, um and being told as many times as Dassey was if you just work with us, everything will be fine, leading up to saying can I go to my sixth period class, um suggests that there were false promises of lenience.
Luke Berg: Ah as we argued in our brief, the courts have consistently held that there has to be a very specific offer for there to be a false promise of leniency.
Judge Wood: That is for a competent adult, I think this is where we are intersecting with the youth and the mental limitations I’ll just call it that, ah there is plenty of evidence whether he is in the bottom five per cent or the bottom eight per cent, whatever. Um but I believe that the standards that you are referring to are the reasonable adult standard in the court has said in other cases that juveniles are not adults, juveniles need a different test.
Luke Berg: Absolutely that’s right, but it’s a totality of the circumstances test.
Judge Williams: And here the totality of the circumstances show that he was told at least 28 times during the interview that everything was ok, that they already knew the truth and that it wasn’t his fault. 28 times!
Luke Berg: They also took numerous precautions to protect against Dassey misunderstanding anything they said.
Judge Rovner: Could you tell us what precautions they took?
Luke Berg: Absolutely, they began the very first interview, by telling Dassey you can leave at any time, and you don’t have to answer any of our questions, they repeatedly….
Judge Wood: Can I just ask, because you mention the first interview, when we think of the totality of his interactions with the police officers, he’s seen these same officers on a couple of occasions, twice, and I believe it’s the February 27th interview, then it’s the March 1st interview, shouldn’t we evaluate his interactions with them on the basis of all of that, if we are really doing the totality?
Luke Berg: Absolutely, and that’s why I’m recounting some of the things.
Judge Wood: So, he makes promise, so if officer Fassbender makes a promise of lenience, in even one of the earlier ones that’s a problem?
Luke Berg: That would be relevant yes.
Judge Williams: Yeh so in that February 27th, they actually said they were not acting as officers but instead as fathers, so doesn’t that confuse their roles, and imply leniency to an intellectually or emotionally limited juvenile?
Luke Berg: No...
Judge Williams: Why not?
Luke Berg: As I said they warned Dassey he could leave at any time, and anything he said can be used against him. They repeated that warning throughout. At the end of that first interview, after making multiple….
Judge Williams: And so the fact they said they were acting as if they were his father that that doesn’t have any bearing on it? That’s a fact.
Luke Berg: Well certainly, it doesn’t force the conclusion that the confession was involuntary.
Judge Hamilton: Is it correct, that Dassey told the police officers that his uncle had told him not to talk to the police?
Luke Berg: Yes, that’s right.
Judge Hamilton: You’ve forgotten the role that Avery’s lawyer played in that, but that was one of his accounts. Is that right?
Luke Berg: Yes, that’s right. I also want to point out at the end of the very first interview, after making multiple vague assurances, very similar like the ones they had made on March 1st the officers asked Dassey specifically they said ‘did we make you any promises?' Dassey said yes, 'that I could leave whenever I wanted and I didn’t have to answer any of your questions', I think that’s pretty strong evidence that he didn’t hear any promises from their sort of vague statements.
Judge Wood: How do we take ‘can I go back to school?’ I mean the kind of things that they were eliciting from him with quite a bit of work as Judge Rovner’s opinion, certainly, amply, documented, most people who who commit murder, dismemberment and destruction of a corpse, don’t think they are just going to go back to school and turn in their sixth period project.
Luke Berg: Most people if they saw, what Dassey saw, wouldn’t have participated.
Judge Wood: Well but I’m just saying, that doesn’t that tell you that he is just a person who doesn’t get it, they told him if you talk to us everything is going to be fine, we have your back, we’re your father. Um promises are made.
Luke Berg: I think those statements show at most that Dassey doesn’t understand how awful it is to rape and murder someone.
Judge Kanne: Was he aware that his mother said it’s alright for him to talk to you?
Luke Berg: Absolutely, the officers asked both his mother and him for permission they offered to let her sit in on the second interview, both he and her declined for the second, for the March 1st interview, they again asked both him and his mother for permission. Ah they Mirandized him multiple times, second interview, they Mirandized him on the March 1st interview they repeated those warnings before they started asking questions.
Judge Rovner: Mr Berg what if anything should we make of the fact, that in March of this year one of the nation’s largest policing consulting firm that one trains officers in Chicago NY and federal agencies has said that is tossing out the REID technique, the one that was used here, the interrogation technique used in this case because of the high risk of false confessions do you take that into consideration at all?
Luke Berg: Barely, the constitution does not incorporate what a particular organisation thinks or what is best practices and just because that one organisation thinks they are best practices does not mean they are in fact best practices. Ah.
Judge Rovner: One institution that is now training the large city police forces and federal agencies its meaningless, right?
Luke Berg: It is one organisation among many, and this is a case that has obviously garnered a lot of attention so the fact they used it to get some attention of their own I think should not be given a whole lot of weight
Judge Rovner: Can you….
Judge Wood: The fact that they did not feed him I mean think of them trying to get him to talk about her being shot in the head, it’s like a 20 questions game, I cut her hair, I slit her throat, he punched her and finally he says oh come you know who shot her in the head? Over and over the facts are given by the police officers to Dassey and as he agrees with what they said until he goes out and talks to his mother and says, ‘I didn’t really do it, they got into my head.'
Luke Berg: I’ll give you two very important details two details that he provided that weren’t even suggested by the question that was asked of him, so early on Avery, Dassey said, that Avery put Teresa in the back of the truck, they asked him was she dead? And he said yes, they said Dassey how do you know that at that point he realises that he’s been caught in a lie, and quite logically but unexpectedly he says ‘well I was biking and I could hear it, and they’re like what? Hear what? Screaming? Screaming what?
Judge Wood: There was huge publicity about this case.
Luke Berg: There wasn’t publicity about her screaming ‘help me’.
Judge Wood: He knows that she is dead. Right? As of the time of these two or three interviews, everybody in the United States knows that she’s dead by the time of these interviews.
Luke Berg: Yes, that’s true.
Judge Wood: Right so.
Luke Berg: So, he provided a lot of detail that he could not possibly have gotten from anywhere, I think the most telling examples are his memories of Teresa, he remembers her screaming ‘help me’ and how she looked, naked and chained up to the bed, he remembers her cries…
Judge Wood: They feed him that, that’s not something that initially, in fact there’s contradictions in his accounts.
Judge Wood: Contradictions are rife.
Luke Berg: They didn’t feed him the fact that she was handcuffed to the bed.
Judge Wood: But there is no evidence she was either, there’s no.
Luke Berg: They found handcuffs in the bedroom.
Judge Wood: But, but.
Judge Rovner: Does that mean, does that lead to this?
Luke Berg: Well I will note that.
Judge Rovner: Because they found handcuffs are in the bedroom?
Luke Berg: I will note that the question of, whether there was enough evidence, is a question for the jury, Habeas is not a license for federal courts to play back up jury.
Judge Williams: When we try and evaluate whether it was voluntary and whether some of this information was new or fresh we can look at the corroborating circumstances around it can’t we? And that can certainly have some bearing on it, on the question.
Luke Berg: No, I don’t think you can, no the Supreme Court has consistently said that reliability is a question for the jury, it’s not something you consider on voluntariness. So, there is a good answer there was a lot of corroborating evidence in this case, that’s not something you consider in a Habeas case.
Judge Wood: Well but this, so here we have to think of the theory that we are operating under there’s some discussion in both the briefs, and the district court opinion about (d1) and (d2) and in a (d2) case you are in fact looking at the evidence, um which is why I mentioned earlier the Brumfield case which is a square ruling by the Supreme Court of the United States relatively recently, finding a unreasonable determination of the facts in light of the evidence presented in the State courts proceeding it’s an Atkins (Atkins v Virginia) claim that it doesn’t matter as it’s a 2254 (d2) claim, so I do think we do have to look at the evidence here, but actually I want you for a minute to take two minutes of your argument time to discuss the ineffectiveness of Mr Kachinsky um since, the district court is obviously horrified by that the state courts are horrified by his behaviour, they remove him from the case and he actually says at some point, ‘I consider myself to be representing the victims’ so why doesn’t that fall within the Cuyler against Sullivan conflict of interest ah Rubric..
Luke Berg: What Kachinsky did is absolutely indefensible, we haven’t defended it, but he was removed.
Judge Wood: So, he’s not representing his, it’s as though he’s, its worse than having no lawyer at all, he would have been better off pro se. He would have been better off with somebody who was not helping either the victim’s family or the prosecution.
Luke Berg: He was removed eight months before trial.
Judge Wood: But the harm was done, the harm in the term, you use these confessions at the trial, the harm was already done by the time Kachinsky leaves.
Luke Berg: What he did had absolutely no effect on the primary confession the March 1st confession, Kachinsky wasn’t around until after the confession came in so there’s no arguable effect on the centre piece evidence.
Judge Wood: It doesn’t do anything to try to ameliorate this to try to um to bring a solid defence of involuntariness of the confession.
Luke Berg: That’s absolutely not true, he, he moved to suppress the, the confession and if you read the transcript he made a lot of the same arguments that Dassey is now making on appeal.
Judge Wood: I’ve read the transcript of course.
Luke Berg: He identified a lot of the same statements, that Dassey has focused on ah and he argued that it was coerced, and the court rejected that.
Judge Wood: You don’t have to show prejudice in a Cuyler case, if you show conflicted counsel, counsel with an actual conflict of interest you’re done, the sixth amendment gives you the right to counsel.
Luke Berg: You have to show an adverse effect.
Judge Wood: Right.
Luke Berg: Ah but regardless the Cuyler claim is foreclosed on Habeas because the Supreme Court clearly said in Mickens that Cuyler is only clearly established for multiple concurrent representation, nothing like that happened here.
Judge Wood: That’s, that’s what I’m saying, I was looking at Mickens before this argument and I don’t see anything in Mickens that says that kind of conflicting concurrent representation has to be co-defendant’s if, if he was essentially a member of the prosecution team, that’s a party that’s a concurrent representation.
Luke Berg: There is no allegation that he had any relationship with the prosecution ah that he had any sort of financial incentives, he made some bad decisions.
Judge Wood: Money doesn’t matter, I mean you can represent somebody without being compensated.
Luke Berg: Well, we think the Cuyler claim is clearly foreclosed by Mickens there’s a very clear statement from the Supreme Court ah in Mickens the court was considering successive representations so you had a lawyer that was representing two different people that’s very close to multiple concurrent representation and yet even there the Supreme Court said that Sullivan doesn’t clearly establish anything in that, here you don’t have anything like multiple or successive representation and you have some bad decisions by counsel sure.
Judge Wood: Well you have.
Luke Berg: Ah.
Judge Wood: I don’t agree with that reading of Mickens actually so because you do have active representation of conflicting interests.
Luke Berg: Well our position is that it is clearly foreclosed so I would like to move back to the voluntariness if I could.
Judge Williams: In moving back to the voluntariness and the limitations Dassey had and his demeanour, as on the during the interview, particularly when you look on the tape, you can see significant change in his demeanour when he’s left alone and when his Mother enters the room.
Luke Berg: I think that actually supports the States position here, so at the end if you watch the 20 minutes, rewatch the 20 minutes, when his mother comes in he spends 10 minutes his Mom is crying saying why did you do it? Why did you keep it a secret? Why didn’t you tell me? She says you knew it was wrong, right? It looks like he nods the whole time, he’s got his head in his hands he can’t bring himself to look at her, then when she leaves he starts crying for the first time, the only time that I’m aware that he cries. And I think it’s pretty clear, that he’s guilty I think that’s why he confessed because he needed to get out all of those things that were in his mind, now I want to go back to the memories of Teresa that I was mentioning before, ah because I think that’s one of the primary evidences that that his confession was voluntary, the way he volunteered those details. Um he remembered her crying, and pleading with him not to do it while he raped her he remembered her desperately trying to move away, as Avery came at her with a knife. He remembers her breathing, after Avery stabbed her in the stomach and that she’s still struggling to breathe after he cut her throat he remembers that her belly wasn’t moving, as they carried her out to the garage and he remembered the awful smell as her body burned. None of those memories were suggested to him by the officers, they were very raw and they were very real and Dassey needed to get them out. Another main piece of evidence, that shows the voluntariness is the way he resisted the officers, numerous times.
Judge Wood: He’s guessing, you see this as resistance, I see this as him sort of casting back and see these long delays on the video where they ask him a question and he’s obviously racking his brain as to how can I answer this in a way that you’re going to like? How can I answer this quote on quote, correctly? And you know I don’t, his very diction is so, so unsophisticated he just doesn’t know what he is talking about.
Luke Berg: The counter to that is you have at least 35 different times that he resists the officers questions so they asked him six different questions, on four separate occasions about whether he shot Teresa and these were some of the most leading questions, they said ‘ that we know you shot her too’ isn’t that right, and he says no, they say ‘how many times do you shoot her when the gun was in your hands, and he says it was never in my hands, they asked 15 questions on six separate occasions about whether the fire was going when he got over there, he consistently said that it wasn’t.
Judge Wood: He answers every which way on some of these questions, whether it’s about the fire, whether it’s about where’s the car in the garage, did you go first, did you go later, um he’s all over the map, and you can pick a sentence here and a sentence there, and knit together a confession, but it’s not what really happened.
Luke Berg: It's true he changes some details, here and there.
Judge Wood: He changes important details.
Luke Berg: But that’s exactly what you would expect for a traumatic memory like this.
Judge Wood: It’s also what you would expect from somebody who’s trying to say what the officers want to hear, and isn’t reading their mind.
Judge Williams: Particularly because they show their frustration when he resists or disagrees with key details and then they offer him praise saying ‘oh now we believe you’ when he picks up on a fact that they have suggested to him, when he’s answered.
Luke Berg: But you wouldn’t expect if he truly had been coerced that he would continue to resist the officers, and he did there was eight questions in a row about whether they used the wires in the garage for anything he never gave into that, why not? If he gave into everything else, why would he not give in to something like that?
Judge Wood: Was he genuinely he explains at one point, he just couldn’t think of anything, he couldn’t come up with another thing to say and he’s at the end of his rope a few times and just has not enough imagination.
Luke Berg: So, you’re talking about the question ‘who shot her in the head?’ There’s a very good explanation for why he couldn’t think of it. Ah put yourselves in the investigators shoes for a moment, there trying to figure out what happened, ah they don’t know the details, they know.
Judge Wood: They are telling him we know everything Brendan, um.
Luke Berg: They know she was shot in the head, so they know that, they think that’s how she died, and they are talking with Dassey about what happened in the bedroom. And then he says ‘Avery stabbed her I cut her neck and Avery choked her’ and they’re thinking well she must be dead now, so why would Avery shoot a dead woman, that doesn’t make any sense, so he must have shot her in the bedroom, so they try and get, to elicit that detail and he can’t think of it because, his mind is in the bedroom, they don’t find out until later Avery actually shot her in the garage, like ten minutes later, so that’s why Dassey couldn’t think of it in the moment, because they have him focused in the bedroom, ah so there’s a very good explanation as to why he couldn’t think of it and.
Judge Wood: So, it just goes to show all he’s just trying to do figure out what’s in their mind? How can I replicate what you're waiting to hear, and then you’re going to praise me and say, good for you, you’re going to feel better after this, and now we move on and every things going to be ok, we're in your corner Brendan?
Luke Berg: That doesn’t explain all of the details that he volunteered that were never suggested to him colours, sounds, smells all the memories, of Teresa that I mentioned before.
Judge Wood: Yeh, I’m not sure even although we can discuss this with your opponents that I think that the list if not non-existent, very short, and he explains at the trial that he’s made up some of those quote details from a book he read.
Luke Berg: Yeh I think that explanation is outlandish quite frankly, especially because the detail that he’s talking about that Teresa was handcuffed to the bed that came in response to a question that didn’t even call for that detail. So, they’re walking him into the bedroom, and they ask him ‘was she alive’ and he says, ‘well she was handcuffed to the bed’ the idea that he at that moment, suddenly conjured up this book that he read, decided to make up a story and pull a detail from it ah just beggars belief.
Judge Wood: Why? He was in fantasy land anyway and there’s no sign on the headboard of handcuffs if she had been handcuffed.
Luke Berg: Or possibly he was remembering he was in his mind he had remembered the detail he remembered vividly the image of Teresa handcuffed to the bed and he brought forth that detail when they asked was she alive? Um nothing the investigators said came even close to a specific promise.
Judge Wood: The investigators made my skin crawl watching this video, this lulling behaviour, that they conveyed which was so dishonest so dishonest um with such a vulnerable person was not what I would call an interrogation, it was a you know ‘tell me what I want to hear’.
Luke Berg: There was some minor deception to be sure, but the cases say that’s okay.
Judge Wood: Major deception.
Luke Berg: No, I don’t think its major a lot of the things the investigators actually said was true.
Judge Wood: Psychological coercion.
Luke Berg: A lot of things that they told him were true so their statements ‘we’ll go to bat for you’ for example, they did in fact go to bat for him.
Judge Hamilton: If he had stuck with his story and testified against Avery I suspect they would have.
Luke Berg: That’s exactly right so they went back to the prosecutor and said Dassey should get some credit he’s been cooperating with us, he probably would have gotten a lot of credit if he not recanted his confession, we might not even be here if he.
Judge Wood: I doubt that, just for your information, I think this white card means you’re in rebuttal time, it’s up to you you can talk to us further or not?
Luke Berg: I’d like to save the remainder of my time for rebuttal, thank you.
Judge Wood: Ok certainly.
Judge Wood: So Ms Nirider of course your big issue is AEDPA deference, um even if there’s a lot that looks like any rational person might have said this was a limited person, the state courts found otherwise, what do we do about that?
Laura Nirider: It did your honour and may I please the court. Deference by definition does not preclude relief that is what we know from the Supreme Court, relief is reserved for cases where the application of clearly established law even where that law is stated in general principles has been unreasonably misapplied in the state courts and that’s precisely what we see here.
Judge Rovner: Is your best argument, ah stronger under 2254 (d1) or (2)?
Laura Nirider: Your honour I believe those two arguments are intertwined. So, we ask for relief on both (d2) grounds and on (d1 )grounds here, and the directive from the Supreme Court that dictates the results in this case was articulated in Miller v Fenton. Where the court said that involuntariness is not only concerned with inherently coercive techniques but it equally encompasses techniques that are coercive only as applied to the unique characteristics of this particular suspect.
Judge Hamilton: So, to quote Miller looking at the circumstances here, no threats, um care for comfort for physical comforts um he’s mirandized mother is invited to sit in and chooses not to he says that’s ok, uh voices are not raised, to quote Miller would you say that the police here used tactics, quote, ‘so offensive to a civilised system of justice that they must be condemned under the due process clause of the 14th amendment'.
Laura Nirider: I would your honour.
Judge Hamilton: And what are those?
Laura Nirider: Those tactics include issuing a promise of leniency to Brendan Dassey.
Judge Sykes: There was no promise of leniency vague assurances at best.
Laura Nirider: Not when judged by the standard of an adult.
Judge Sykes: Even with an intellectually challenged 16-year-old there were no assurances or promises there has to be a concrete promise fraudulent promise of leniency for it to bear on the voluntariness of the confession. Vague assurances are not enough. There was not enough under 2254 (d) review.
Laura Nirider: There was a very specific and concrete promise of leniency made in this case, honesty will set you free, is what they told him, now your honour, it’s true, unquestionably true that you and I would understand that to be a quote from the book of John, an idiom. But the record in this case is indisputably, clear that idioms are the one thing that Brendan Dassey cannot understand, he has no choice because of his disabilities.
Judge Sykes: He understood plainly that he was being encouraged to be honest, and to get it off his chest.
Laura Nirider: And that the exchange for his talking was to be set free. He had no choice but to take those words literally.
Judge Kanne: Is it key here that his IQ is, we accept the fact that he has a lower IQ that’s it, anybody that has an IQ of that level can’t be questioned in the way he was?
Laura Nirider: Certainly not your honour, this is long standing federal law and there have been many cases with many interrogations of mentally limited individuals that have come into evidence without any problem under Miller v Fenton, this is a unique fact case.
Judge Kanne: This was not an aggressive questioning.
Laura Nirider: It is a case of psychological coercion. There was a promise of leniency.
Judge Kanne: There was no rotten in fact there’s case law says they can bluff.
Laura Nirider: They can bluff your honour, but they cannot so distort his rational will that he was incapable of.
Judge Kanne: Because of his IQ?
Laura Nirider: Yes because of his IQ, because of his age.
Judge Kanne: So, let’s get back to my original question, this whole thing revolves around what his IQ is?
Laura Nirider: Because of his disabilities your honour the IQ is part of his disability but in particular his impairments undisputed record that he was unable to process idioms, combine that, with that statement that honesty will set you free, with.
Judge Kanne: That’s not true?
Laura Nirider: I’m sorry?
Judge Kanne: That’s not true?
Laura Nirider: That’s statement was not true your honour, certainly not and you see him believing of course, that it will be true, because you see him expecting to after confessing to rape and murder that he’s going to go back to school, and even after the officers disabuse him of that notion, they say to him ‘Brendan you know we are police officers, right?’ ‘And because of what you’ve said the law won’t let us let you go' he still clings to that illusion and he says, ‘is it only for one day?'
Judge Kanne: Even if they attempted to correct him then, it’s still wrong?
Laura Nirider: Honesty will not set him free, that’s correct.
Judge Kanne: Even if the police attempted to correct his misunderstanding, that doesn’t do any good?
Laura Nirider: They only attempted to correct that misunderstanding after he confessed when they finally break the promise, and my colleague on the other side for the state of Wisconsin spoke to Brendan’s demeanour after the officers told him that they were going to arrest spoke to the fact that at that moment, the first thing he did was ask for his Mother, at that moment he began to weep. Why only then, because that’s the moment the bargain was broken for him. That’s the moment he understood.
Judge Kanne: What bargain? What bargain?
Laura Nirider: That honesty and repeating back the story that the officers gave him would set him free.
Judge Kanne: So, so there was a bargain?
Laura Nirider: There was a bargain your honour, ‘repeat back this story that we want to hear, and in exchange you will be set free'. It was a bargain that was understood as such because of Brendan Dassey’s limitations which is precisely what the Supreme Court has directed us to do to define coercion in terms of how a reasonable person in that suspects position would have perceived.
Judge Kanne: And that’s because his lower IQ?
Laura Nirider: And his impairments and his disabilities, and his age, yes, your honour.
Judge Rovner: And the fact that he is 95% more suggestible than the population.
Laura Nirider: That's exactly right.
Judge Williams: Some people can have a psychological condition of suggestibility and be older or have a higher IQ and other people so I think this is a totality point you are making and in Gallego’s and other cases the Supreme Court has told us not to get to if you will, siloed in our thinking about this, Brendan is of lower intelligence or that he is this or he is that he’s a package and so I want to ask you whether um you think the correct legal enquiry is whether a reasonable person a reasonable functioning adult would have found this interrogation coercive or if we are supposed to take all aspects of Brendan as an individual and ask that question?
Laura Nirider: We are to take all aspects of Brendan’s personal characteristics into account.
Judge Wood: And what’s your best case for that, that this is not something that is just an objective standard?
Laura Nirider: Yarborough v. Alvarado, directs litigants of the courts to examine the actual mind set of the suspect in a voluntariness case. In opposition to the objective Miranda custody enquiry and this court has said in multiple places including US vs Sturdivant, that the enquiry is whether a reasonable person in the defendant’s shoes would have been coerced which is of a piece with a long-standing line of the Supreme Court case law, Haley vs Ohio would not exist if we were to judge all interrogation tactics against the will of an adult. Haley tells us the opposite that which would leave a man cold and unimpressed can overawe and overwhelm a child. And that’s what you see on this tape.
Judge Hamilton: So, so Ms Nirider, we um, ah, the police need to take account of all circumstances, right? Um the police rarely will have access, to a full psychological background, school records, and all the information that’s been used to challenge the voluntariness of this confession um they simply deal with the first witness and then later suspect, ah that they are dealing without of all that background information, if we were to affirm the grant of habeas relief in this case which you have described as unique um what practical advice would you give to police about what was is and is not permissible in interrogating a high school boy who is not very quick hmmmmm.
Laura Nirider: I would say your honour that taking this case as an example these interrogators knew at the least that he was 16 years old. Based on their interactions on February 27th they also had at least some reason to believe, he might be limited. He wasn’t able to spell agent, or detective.
Judge Hamilton: So, what should they do?
Laura Nirider: On February 27th?
Judge Hamilton: What should they do?
Laura Nirider: Given that?
Judge Hamilton: What can they do? To solve the crime?
Laura Nirider: They, they may still question him, there’s no doubt about that, but.
Judge Hamilton: Can they bluff?
Laura Nirider: They may as long as it doesn’t overbear his will, but they cannot say things that will land on this defendant as a promise, they should never say things like ‘I’m a cop but I’m not right now’ ‘I’m a parent’ when you’ve got a 16-year-old in the interrogation room they shouldn’t say things like ‘we know you’re scared of arrest but you’ve got nothing to worry about’, ‘everything will be alright.’
Judge Sykes: Counsel you are creating new law now, there is no case that says that we’re here on 2254 (d) review, a federal court cannot create new law on Habeas review. And that’s what you are asking for in this case. It’s just flatly impermissible under all the Supreme court’s precedents.
Laura Nirider: Your honour I am not asking for the creation of new law, I’m asking for this court to apply decades old law.
Judge Sykes: That’s exactly what you’re doing, your defining criteria and things that the cops cannot do, there is no case that says they cannot do those things.
Laura Nirider: I’m not asking this court…
Judge Sykes: You cannot use this case to establish that new benchmark for investigators in interrogating juveniles. There is no case law to support that under established law under 2254 (d) you must lose.
Laura Nirider: Let me be very clear I am not asking for this court to erect a rule that anything the officers said will always be proscribed for going forward.
Judge Wood: Aren’t you focusing, I mean that’s why I want to come back to 2254 (d2) because that’s very factually bound circumstance and it’s the decision um based on all of the evidence that with this package of facts the finding that this was a voluntary confession was um not even a possible finding on this record. That doesn’t create new law, the Supreme Court just now in Brumfield two years ago to be honest, accurate 2015 says that the 2254 (d) enquiry asks you to look at an unreasonable determination of the facts. Isn’t that what your following?
Laura Nirider: That is exactly what we are following your honour, this is a very fact bound case and there was an unreasonable determination in the facts in this case, and I would also imagine the facts in this case are unlikely to recur.
Judge Sykes: What fact finding do you take issue with?
Laura Nirider: I take issue with the states courts finding that there were no promises of leniency made to this defendant which is what the district court identified as a (d2) error.
Judge Sykes: Well that’s asking for new law, because you’re asking for us to hold that this biblical quote is beyond the pale and no reasonable judge could disagree with that, that is asking for new law by definition because no court says that.
Laura Nirider: I am asking for this court to apply Miller v Fenton which has.
Judge Hamilton: Both the state courts though the trial court and the appellate court specifically acknowledged the statement, the general the truth, honesty will set you free, they both acknowledge that point right.
Laura Nirider: They did your honour.
Judge Hamilton: So obviously didn’t think that was a sufficiently specific or legally relevant promise of leniency, is that a fair reading of what they said?
Laura Nirider: Yes, and that’s the unreasonable application of law, and the unreasonable
Judge Hamilton: Fact or law?
Laura Nirider: Well your honour the district court treated it as a (d2) fact following Sharp v Rohling in the 10th Circuit which did the same thing. But whether its treated under (d2 )or (d1) I think we are left with the ultimate conclusion being the same.
Judge Wood: Isn’t the D, D, I see it anyway, maybe this is to literal, the (d1) aspect of this is whether in the end this was a voluntary confession, the Supreme Court has said that that question raises the question of law. Ah because it’s a constitutional fact sort of but its assessed as a matter of law. The (d2) question is the more granular one looking at all of these transcripts are there one or more promises of leniency ah should you look at this, this way and the court has said as far back as the Terry Williams against Taylor case that the facts don’t need to be an exact map, you’re going to look at these promises and see whether they actually amount to a promise of lenience.
Laura Nirider: That’s exactly right your honour, and the court has reiterated that more recently in Panetti vs Quarterman and Marshall vs Rogers, clearly established federal law may be found in general principles, and we need not identify a case with factual identity at a high level of specificity.
Judge Wood: So, another case could come along and somebody shall say, you will know the truth shall make you free and that would not be a promise of leniency?
Laura Nirider: I would imagine for most people that would not be a promise of leniency, that’s correct. Exactly right.
Judge Wood: So, there’s no automatic character to the rule if it’s a (d2) problem, was this a promise or was this not a promise?
Laura Nirider: There is no automatic character we must not evaluate these tactics in isolation the Supreme Court directs us to do otherwise. They must be evaluated in conjunction with the package of Brendan Dassey’s vulnerabilities. The Supreme Court here has instructed us to consider Brendan Dassey’s reaction to this promise in part, as a part of the consideration here, when it directed us in Yarborough v Alvarado to turn to the actual mindset of the suspect that’s why the moment when Brendan Dassey asks to go back to school is so powerful it speaks to his understanding of the bargain that has been struck.
Judge Woods: So, I would like your response to the points Mr Berg was making about facts that Dassey furnished that were not fed to him by the police officers or the media.
Laura Nirider: Indeed your honour most of the facts that were listed in the panel dissenting opinion were in fact fed to him often on February 27th the whole notion that a rape was involved at all in this crime, was fed on February 27th when the officers asked Brendan ‘did he try to have sex with her or anything ‘and he said no, ‘it’s very important that we might have heard that he told you that’ the notion that Brendan had participated in burning the body also on February 27th Brendan ‘I’m going to ask you a difficult question ok did you help him put that body in the fire, if you did that’s ok’ ‘have you seen body parts in the fire’ this is a telling moment on February 27th when the officers tell him ‘ ‘Brendan I find it very hard to believe that you didn’t see something in that fire, a hand, a foot, a head something in that fire’, then he repeats back those same body parts fingers, toes and a forehead, that he saw in the fire, the smell was fed to him on March 1st ‘we talked Monday night about bad smells and stuff do you remember any smells coming from that fire after she was put on there?’
Judge Wood: Didn’t the fire have tires in it too?
Laura Nirider: I’m sorry?
Judge Wood: This fire included tires?
Laura Nirider: It did…
Judge Wood: Which don’t smell that great when they burn either.
Laura Nirider: They did, the notion that he went inside Avery’s trailer ‘be honest you went, inside didn’t you?’ Halbachs words, even the words of the supposed rape were fed to Brendan ‘Dassey was she saying anything while you were doing this?’ ‘Did she ask you not to do this to her?’ And Brendan says, ‘she told me not to do it’. Tying Teresa Halbach up ‘you helped to tie her up though didn’t you Brendan?’ Cause he couldn’t tie her up alone, there’s no way. On and on and on these facts, were fed. A few of these...
Judge Wood: What about the ones that were supposedly not fed that your opponent mentioned?
Laura Nirider: Well the majority, the vast majority of this confession was fed to him.
Judge Wood: Yeh but even if, even if it’s only a few, that would be worth attending to the state court might think?
Laura Nirider: There were moments after the investigators steering Brendan down a path allowed him to offer a story without fact feeding and at that moment you can see him drawing on various sources for these details, often what he drew on was details that had been circulated in the media. For example, her blood being found in the back of the RAV4, that’s the detail that he knows was the case and that explains his initial story that he had seen her in the back of the RAV4, he also draws on the book Kiss the Girls at times a book that includes hair cutting of a rape victim, that’s where that part of that story comes from, and a few.
Judge Hamilton: Do you know the, ah I find at least some interesting tension between this theory do we know for example the level of writing and comprehensibility of that book?
Laura Nirider: Your honour that is an interesting thing, but the IQ.
Judge Hamilton: Or how closely he followed the media reports so as to remember every detail this man this boy with limited intelligence?
Laura Nirider: Both of those things are in the record your honour, um the IQ tests that Brendan was given repeatedly over time, demonstrate that his limitations are primarily with respect to oral communication, verbal communication, but he can read and comprehend at a much higher level. This was a consistent result over time, and as for his exposure to the media reports, there was testimony at post-conviction from Brendan’s mother Barb that the family regularly had the TV on and of course the story that was being told on the news, was the story of their relative Steven Avery’s arrest, the family was closely following this and why wouldn’t they, not only did it implicate their family member but it implicated their home and their livelihood. That’s where he got some of these additional pieces of information from. The State court , State of Wisconsin views this confession as corroborated, but in fact the corroboration on which it hangs its hat was a product also of the fact feeding that occurred during this interrogation, they point to the bullet found in the garage, but it was the interrogators themselves who took Brendan Dassey into that garage, originally he had the shooting outside the garage near the bonfire pit and it is them who say ‘Brendan we need to get the accuracy about the garage’ why do they think it happened in the garage? Because they had previously found shell casings in that garage.
Judge Kanne: The motive of the police was to get a second killer?
Laura Nirider: I’m sorry your honour?
Judge Kanne: What was the motive of the police in doing this, to get a second killer?
Laura Nirider: Your honour the test does not direct us.
Judge Kanne: I know that’s not the test, it’s the question I’m asking you.
Laura Nirider: The record doesn’t speak to the motive of the police in this case.
Judge Kanne: You are arguing their motive.
Laura Nirider: I am not your honour, in fact the district court here, in granting relief, the police may well, have simply failed to appreciate the way in which their words landed on Brendan Dassey and that may well be the case in this case but it does not preclude relief, in fact it still bolsters relief under the principles, of Miller v Fenton.
Judge Kanne: So, they needed two ah two killers?
Laura Nirider: No, your honour, they needed the truth but the problem with this interrogation is the way they pressered, pressured and pursued, Brendan Dassey was in direct contravention of the seeking of the truth. That’s the problem here, they may have failed to appreciate it at the time, but that is not the relevant enquiry.
Judge Williams: Can we shift just a minute to Sullivan and Mickens, and why you believe that they clearly establish that there was prejudice and that counsel was conflicted in a manner other than a concurrent co representation of clients.
Laura Nirider: Well your honour, I believe that Mickens does not bar relief in this case for two reasons; first of all, the nature of the conflict exhibited by Mr Kachinsky can well be understood as a concurrent representation conflict similar to the one at play in Cuyler v Sullivan, true it doesn’t involve co-defendant’s, but it involves something more egregious working for the state at the same time as working for one’s client. But ah under (d2), we know that the court need not identify clearly established federal law in order to grant relief and there was a clear (d2) error in the state courts adjudication of the ineffective assistance of counsel claim. So once that (d2) threshold has been crossed, the court is then free, under ah 2254 (a) to apply Cuyler v Sullivan not withstanding Mickens.
Judge Hamilton: When were the shell casings found?
Laura Nirider: In November of 2005.
Judge Hamilton: In the garage?
Laura Nirider: In the garage your honour.
Judge Williams: How much if anything did the investigators know about his intellectual or emotional limitations?
Laura Nirider: Well your honour they had a couple of tips on February 27th of course they didn’t have access to his full psychological work-up but they did know on February 27th that this was a 16-year-old 10th grader who couldn’t spell the word agent, who couldn’t spell the word detective, and on March 1st this was further confirmed when he couldn’t spell rack, or garage for them, these were cues that something was going on here. They also had cues on March 1st.
Judge Kanne: Are the spellings of those words should have tipped them off there was some problem?
Laura Nirider: They gave them at least some reason to suspect that there might be limitations here, and an additional reason to take special care, in the questioning of Brendan Dassey. They still had a great deal of freedom in the questioning of Brendan Dassey but they should not have said things that would have landed on someone of Brendan’s age and limitations as a promise.
Judge Williams: What else besides the misspelling?
Laura Nirider: They knew that he was 16 years old your honour and in the 10th grade, they picked him up twice from his school, and had, had previous interactions, with the school counsellor, at which they could have well have asked for Brendan Dassey’s records, his extensive IEPs, and other special education records. But they had enough information to know that he was limited, and especially on March 1st they should have known when they asked Brendan Dassey to produce the one piece of non-public information about this crime, that, that the true perpetrator should have known that she was shot in the head, and he responded by guessing with all these various different theories about how the murder happened, trying to inculpate himself in a murder, but not knowing how to describe the murder he supposedly committed.
Judge Williams: So, they knew he was a sophomore, they knew he was 16 did they ask him about any special services he might be receiving?
Laura Nirider: Your honour the record does not reflect them asking what might have been a very simple question are you a regular, are you in regular classes, or special education classes?
Judge Wood: And the answer would have been, there were a lot of regular classes, there were some special ed classes.
Laura Nirider: That’s right he was receiving special education support services he had three IEPs.
Judge Williams: Hmm Hmm.
Laura Nirider: Exactly right.
Judge Wood: I guess the IEPs were, there was a supplemental filing about the fact they were in the district court but not here, is that right?
Laura Nirider: There’s a supplemental filing after the argument last time, because I didn’t correctly ask, answer Judge Williams questions about whether there were an IEP in this case, I had said no then realised after the fact that I was wrong and there in fact there are three IEPs in the state court record, which is what the supplemental filing was directed towards.
Judge Williams: So, is it your position that ah, with the misspellings that that should have prompted them to ask if he was getting any special education services?
Laura Nirider: That certainly could have been one thing that they did your honour, I don’t think it is required, as things currently stand, but post spectively moving forward that certainly an interrogator in these officer’s position might do to avoid.
Judge Wood: Do we know if interrogators are trained for tactics for people with limitations, I mean you and I can sit here, say well of course you know that people with higher functioning are better able to deal with the abstract, people with lesser functioning or maybe a child, ah you need to be more concrete but do we know whether the police had any idea what they were supposed to be doing, if they had known the things that you’re talking about?
Laura Nirider: Well your honour the record doesn’t speak to the type of training these officers received, the record does include an Amicus Brief by one of the leading interrogation training firms Wicklander-Zulawski which uses this interrogation video to train police officers on how not to interrogate children.
Judge Wood: Right, so, so I would guess though, the real question is is whether that is relevant at all. Cause if the ultimate question under the Supreme Courts precedent is whether the confession is voluntary that’s from Brendan’s point of view, it’s not from the police officers point of view.
Laura Nirider: I think that’s exactly right your honour, the test directs us to look at the tactics used and weigh them against the individual suspects characteristics.
Judge Wood: Even if the tactics had been perfect if you had evidence to show that the person who was being interrogated gave an involuntary confession that would be enough to suppress it.
Laura Nirider: Well I think that’s right subject to Colorado v Connelly’s requirement on police coercion I think that’s correct your honour.
Judge Wood: So, coercion and voluntariness are somewhat different concepts?
Laura Nirider: Coercion as the Connelly court has told us must first be shown in order to reach the conclusion of involuntariness but that coercion must be weighed against the individual defendant’s ability to resist. And as Miller v Fenton tells us, coercion itself must be defined with reference to a particular defendant’s vulnerabilities. If this court does not measure the words said to Brendan by Brendan’s ability to withstand them then Miller vs Fenton has no meaning, when it tells us that the voluntariness enquiry applies equally to cases in which these tactics are coercive only as applied to the unique characteristics of the particular suspect.
Judge Hamilton: So why isn’t that a completely subjective test that you say in your answer to the petition for the hearing that you’re not advocating.
Laura Nirider: Well your honour the Supreme Court has not spoken using the terms objective or subjective in this particular arena, but we know for example to draw an analogy in JDB v North Carolina that the court has said that it is quite feasible for a state courts to take into account a child’s age without doing damage to the nature of the custody analysis, without doing damage to the objective nature of that analysis we also know that this court in cases including US v Sturdivant has said that voluntariness must be evaluated from the position of a reasonable defendant, a person in the defendants shoes.
Judge Wood: Yeh your looking at page um 116, I think of Miller where the courts say consistently held view that the admissibility of a confession turns as much on whether the techniques for extracting the statements as applied to this in italics the courts suspects are compatible with the system that presumes innocence etc.
Laura Nirider: That’s exactly right, and its reiterated also at page 109-10, that’s exactly right.
Judge Wood: I think you’re about to run out of time, if you would like to wrap up.
Male Judge: *chortles*
Laura Nirider: Alright if there are no further questions at this time I would ask this court to grant the district courts grant of habeas relief.
Judge Wood: Alright thank you very much, Mr. Berg you have, how much time does he have? Five minutes, as you reserved.
Luke Berg: Investigators warned Dassey specifically ‘we can’t make any promises’ very early on, the Miranda warnings warned Dassey ‘anything you say can be used against you’ that statement we were talking about earlier ‘honesty will set you free’ that came right after the officers warned Dassey ‘we can’t make you any promises.'
Judge Wood: So, do people never say contradictory things in interrogations, *male chortling* it seems like an extreme point?
Luke Berg: A consistent theme to Dassey was.
Judge Wood: So, you agree that they could have said we are not making any promises and they could have turned around five minutes later and made a promise?
Luke Berg: Of course, they could have.
Judge Wood: Right, so the question is did they, not, but could it have happened?
Luke Berg: They didn’t because that statement reinvoked the theme ah that he needed to get it off his chest. That the only way he was going to be free of the images in his mind the video in his head they used that language.
Judge Wood: They, they assumed he assumed that this video in his mind is there, they assumed that he knows all of these things and, and I guess I’m not really at rest about what he actually knows that they don’t tell him, ‘Brendan we already know all of this how about the gun how about this how about the that'.
Luke Berg: The point is that they made very clear that they couldn’t make any promises that, the point....
Judge Wood: They didn’t make it clear.
Luke Berg: ...I’m trying to make is the idiom was just reinvoking the theme, which was you should get these things out of your mind, get them off of your chest they said that repeatedly in the first interview so there’s no way he would have interpreted that as a promise. In any event we are on Habeas here so this is now the sixth time a court has reviewed this case in a decade.
Judge Wood: Quite a number of courts have found you have a real problem with this, you got the the district court, magistrate judge and you’ve got the panel in this case so I don’t know that this is a slam dunk?
Judge Williams: When you look at the language that was used I mean, in terms of saying ‘were fathers, were cops and investigators and stuff like that, but I’m not right now I’m a father that has a kid your age too', ‘there’s nothing i'd like more than to come over and give you a hug, cause I know your hurting’ ‘talk about it, I promise I will not leave you high and dry’ and other things that they say suggesting that all he has to do is tell them and everything will be alright.
Luke Berg: In all of the filings, in all of the opinions you will not find a single case, not one, not from the Supreme Court not from a federal court, not from a state court not a de novo review, not on Habeas review, you will not find one case finding a confession involuntary in circumstances similar to this. All of the cases that we have that are even remotely close to this case go exactly the same way courts have consistently held that minor lies about what they know it’s not coercive, they’ve held vague assurances are not coercive, fatherly manner is not coercive, courts they’ve consistently held.
Judge Wood: But all of that maybe true, but the question is the recipient they, we’re trying to figure out when they know that this is a 16 year old at a minimum, whether saying those things, if I were to say things to my four year old grandson you know he’s not going to understand it the way you would, at least I hope, maybe you’ve moved a bit beyond um my wonderful grandson William um, but, ah, you know you say things to an adult that are not the same as things you would say things to a younger person.
Luke Berg: Absolutely.
Judge Wood: And so, the fact that there may be cases where adult defendants have heard things that are these exact same words doesn’t tell you whether saying them to a child is coercive.
Luke Berg: Absolutely but the two closest analogues.
Judge Wood: 'I’ll send you to your room for the rest of your life, you’re being so annoying today' and you know maybe the kid thinks you are really going to send him to his room for the rest of his life.
Luke Berg: The two closest cases we have are Fare v Michael C and Etherly, Fare involved a 16-year-old the officers said things that are nearly identical to what the investigators said here, and the Supreme Court held, that they were far from threatening or coercive. In Etherly you have a 15-year-old.
Judge Wood: But surely, they would look at each case, the Supreme Court never said we are making this ruling for all time, we need to look at exactly what was said in each case, and exactly to whom.
Luke Berg: Absolutely that’s right, it’s a totality test but.
Judge Williams: It doesn’t rule out limitations of the individual.
Luke Berg: But totality tests are broad, they are open ended so there’s more room for disagreement, the court, this court and the Supreme Court have consistently said that for broad open-ended tests state courts have even more leeway. So, you don’t need a case that’s exactly on point, sure, but you need one that’s very close. It has to be clear beyond reasonable dispute that no fair-minded jurist could disagree, the Supreme Court uses a lot of different words to express this concept to say it’s got to be very close.
Judge Wood: Alright I see your yellow and now your red piece of paper so if you would like to wrap up in one sentence you may do so.
Luke Berg: The whole point of AEDPA is to prevent the second guessing of juries and state courts, a decade later a district court and a panel majority did exactly that, please reverse.
Judge Wood: Alright, thank you, thank you as well to counsel to Mr Dassey the court will take the case under advisement. We are in recess.