Brendan Dassey vs Michael Dittman 7th Circuit Court - September 26th 2017

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.