Judge Milton I. Shadur, who died on Jan. 17, at the age of 93, was one of the most prolific federal judges in U.S. history, authoring more than 11,000 opinions and orders during the course of his 37 years on the federal district court bench in Chicago. But one of his opinions has been a constant source of inspiration to me throughout my career.
I never got to thank him while he was alive. This essay is my attempt to repay the debt.
In 2001, Shadur granted my client Derrick Hardaway a writ of habeas corpus, holding that 14-year-old Derrick’s confession was the result of police coercion which overbore his will and should have been suppressed by the state courts as involuntary. Hardaway v. Young, 162 F.Supp. 1005 (N.D. Ill. 2001).
After a panel of the 7th U.S. Circuit Court of Appeals reversed the decision, 302 F.3d 1057 (7th Cir. 2002), the loss motivated me to establish the Center on Wrongful Convictions of Youth at Northwestern University Pritzker School of Law School. It also continues to inspire me and my colleagues in our representation of Brendan Dassey, the 16-year-old Wisconsin boy whose murder confession is one of the central stories in Netflix’s “Making a Murderer.”
In September 1994, I was a clinical fellow working with Tom Geraghty, then the director of Northwestern Pritzker School of Law’s Bluhm Legal Clinic, when 14-year-old Derrick Hardaway and his 16-year-old brother, Cragg, were charged with the murder of 11-year-old Robert Sandifer.
At the time of his death, Sandifer, nicknamed “Yummy” for his love of cookies, was a “shorty” in the Black Disciples street gang who was himself a suspect in the murder of a 14-year-old girl named Shavon Dean.
For a week, the Chicago police searched for Yummy while his gang moved him from safe house to safe house. But when the increased heat from the police to find Yummy cut deeply into the gang’s profits from dealing crack cocaine, Black Disciple leaders ordered the Hardaway boys, also Disciples, to kill Yummy.
In the early morning hours of Sept. 1, 1994, Sandifer’s lifeless body was found in a viaduct on the Chicago’s South Side. He had been shot in the head. His death and the charging of the Hardaways made Yummy’s case national news.
Yummy’s face landed on the cover of Time magazine and President Bill Clinton, poised to sign a massive crime bill that took aim at juvenile offenders, discussed the case in his weekly radio address. Shortly after Derrick’s arrest, Tom and I agreed to represent Derrick. In this environment, Tom and I stood little chance of keeping Derrick’s case in Juvenile Court and despite our best efforts, the Juvenile Court transferred Derrick’s case to criminal court.
In criminal court, the primary evidence against Derrick was a confession he made to detectives after he had been held in custody for nearly 16 hours, interrogated multiple times by teams of detectives and isolated from his parents. Detectives eventually summoned a youth officer for Derrick but only after Derrick had made an oral confession. The youth officer stood silently by while Derrick waived his Miranda rights and confessed again.
We moved to suppress Derrick’s confession on the ground that it was involuntary. We relied heavily on a trilogy of Supreme Court juvenile confession cases — Haley v. Ohio (1948), Gallegos v. Colorado (1962) and In re Gault (1967).
In Haley, a case involving a 15-year-old boy charged with murder, the court recognized that teenagers are “easy victims” of the law and that police tactics which might not be coercive when applied to an adult suspect, could easily “overawe and overwhelm” a teenager.
Gallegos’ significance lay in the court’s understanding that merely informing a 14-year-old of his right to counsel is of little use because the child is unable to protect “his own interests or gain the benefit of his constitutional rights.” Both Haley and Gallegos recognized that youthful suspects need adult advice — from a lawyer or adult relative or friend — to competently exercise their rights.
Gault, the last of the trilogy, again underscored the importance of legal counsel, noting that “if counsel were not present … when an admission was obtained, the greatest care must be taken to ensure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” Gault added one point: a reminder that confessions from juveniles which are the product of police coercion are often false.
Citing Haley, Gallegos and Gault, we argued that Derrick’s youth, the length of time he was kept in custody, and the lack of a lawyer or friendly adult rendered his confession involuntary. We lost. The trial court paid little more than lip service to Derrick’s youth and the lack of adult counsel.
Worse yet, the trial court considered the mere presence of the “youth officer” as support for its conclusion that Derrick’s confession was voluntary. Ultimately, Derrick was convicted of first-degree murder as an accomplice and was sentenced to 45 years in prison.
After losing in the state appellate court — in another “lip service” opinion which failed to even cite the trilogy — we had all but given up hope.
On the last day before the clock ran out, we filed a petition for a writ of habeas corpus in federal court. The case was randomly assigned to Shadur. Several months later, Shadur granted the writ and vacated Derrick’s conviction. One line stood out in his opinion, a line which soon became my mantra: “Neither time nor intervening case law has attenuated, let alone vitiated, the combined force of Haley, Gallegos and Gault.” Because the Illinois courts had “unreasonably applied” these “vital and dispositive precedents,” Shadur ordered that the state of Illinois retry Derrick or release him.
Shadur also took the state courts to task for giving any credit to the actions of the youth officer. He wrote: “To be properly effective, a friendly adult does not wait passively for a juvenile to voice a need for help instead such an adult acts affirmatively to protect the juvenile’s interests, because the very need for a friendly adult is grounded in the recognition that a juvenile lacks the experience or maturity to do so on his or her own.”
At the 7th Circuit, the case was assigned to a panel of Judges Diane P. Wood, Ilana Diamond Rovner and Ann Claire Williams. To our surprise, the panel, in an opinion written by Wood, reversed Shadur. The panel agreed with Shadur’s assessment of the “youth officer,” referring to him as “a potted plant.”
The panel also had the “gravest misgivings” and found that the lack of “special care” applied by the state courts “strongly suggests that an injustice was committed here.” But in a “close case,” the court held that Antiterrorism and Effective Death Penalty Act’s stringent standard of review prevented it from remedying the injustice.
In the language of Supreme Court habeas law, the panel held that the state court’s decision may have been wrong, but it was not “unreasonable.” Perhaps most dispiriting was the panel’s suggestion that Gallegos was no longer a vital precedent because it had not been cited frequently by the Supreme Court.
In the wake of the loss in Derrick’s case, reinvigorating the lessons of Haley, Gallegos and Gault, became my raison d’être. My students and I started documenting and analyzing false confessions. In 2009, as the numbers of juvenile false confessions in Chicago and around the country continued to mount, I co-founded the Center on Wrongful Convictions of Youth, the first innocence organization dedicated to exonerating young people who had given coerced or false confessions.
In almost every false-confession case, we found that judges had failed to suppress the confessions on voluntariness grounds. Many state courts acknowledged the need for “greater care” in scrutinizing juvenile confessions, but they failed to engage in such scrutiny. They rarely analyzed the effect of police tactics on the particular juvenile who confessed.
Since the founding of the CWCY, we have argued in a number of appeals and amicus briefs that the Haley, Gallegos and Gault trilogy was not only still vital but that its protective stance toward juvenile suspects was needed now more than ever in light of the problem of false confessions and new understandings about adolescent development.
We also argued that an emerging line of Supreme Court cases which recognized that “kids are different” in the Eighth Amendment context should be applied to voluntariness cases arising under the Fifth Amendment.
These arguments hit their mark in 2011 when the Supreme Court decided J.D.B. v. North Carolina, a Miranda case that gave the court the chance to revisit the trilogy. Citing the CWCY’s amicus brief for the proposition that the “risk of false confessions is particularly acute when the subject of the interrogation is a juvenile,” the court also brought Haley, Gallegos and Gault back to life.
Relying on Haley and Gallegos, Justice Sonia M. Sotomayor noted that “every parent” — indeed “every person” — knows that children are more vulnerable to police pressure than adults. Even Justice Samuel A. Alito Jr. accepted this proposition in his dissenting opinion: “I do not dispute that many suspects who are under 18 will be more susceptible to police pressure than the average adult … and our pre-Miranda cases were particularly attuned to this ‘reality’ in applying the constitutional requirement of voluntariness.”
When Brendan Dassey’s case reached the 7th Circuit in 2017, there had been a sea change in understanding about false confessions, the particularly vulnerability of juveniles to making them, and the need for greater protections for juveniles to guard against them.
This time, Judges Wood, Rovner and Williams, voted to affirm U.S, Magistrate Judge William E. Duffin’s decision to grant a writ of habeas corpus to Brendan. “Time and intervening case law” (and new science regarding adolescent development and DNA exonerations of juveniles) had not only not “vitiated” but had strengthened Haley, Gallegos and Gault. Unfortunately, for Brendan Dassey, four judges on the 7th Circuit’s en banc panel voted to reverse Duffin.
The final chapter has yet to be written in Brendan Dassey’s case, and indeed, if the U.S. Supreme Court accepts his case, the vitality of Haley, Gallegos and Gault will once again be front and center. But even if the court declines to take Brendan’s case, we, at the CWCY, will continue to fight for greater protections for youth during interrogations. And we will continue to be inspired by the words of Shadur in that fight.
Steven A. Drizin is a clinical law professor at Northwestern University Pritzker School of Law’s Center on Wrongful Convictions of Youth.