Making A Murderer Makes Its Way To The Supreme Court
Last week, Williams v. Louisiana settled with an agreement that resulted in the release of Corey Williams. Williams, for those who may not remember, involved a challenge to the conviction of a 16-year-old child with severe intellectual disabilities. The state courts, in upholding his conviction, had refused to consider evidence of his intellectual disability, and how it bore on the (lack of) credibility of his confession. Indeed, in order to secure his release, Williams agreed to plead guilty to obstruction of justice, a charge that stemmed from his false confession, a decision that gave up his ability to seek any compensation for his wrongful incarceration. (You can help remedy the effects of that decision by contributing to his freedom fund here.)
Now, another case involving confessions extracted from juveniles with intellectual limitations is making its way to the Supreme Court. This case shares some other important parallels with Williams as well—it is a case that raises the question whether and to what degree courts, and perhaps state courts in particular, are obligated to consider evidence of age and intellectual limitations when assessing the legality and credibility of a confession; it is a case in which the defendant has attracted significant support from former prosecutors and law enforcement officials; and it is a case that has received a not insignificant amount of media attention.
The case involves Brendan Dassey, of Making A Murderer fame. For those who haven’t watched the series, Dassey—who has significant intellectual and social limitations—was convicted of murder and related offenses largely on the basis of a confession that was obtained while he was 16. And the question in Dassey v. Dittman is whether the Wisconsin courts were unreasonable to conclude that the confession was obtained voluntarily.
As with Williams, there are reasons to doubt the veracity of Dassey’s confession. The cert. petition contains a long and troubling excerpt of an exchange between Dassey and investigators, during which investigators ask him for information, Dassey provides answers that are apparently inconsistent with the forensic evidence, and then investigators give him answers that are consistent with the forensic evidence, at which point Dassey—who is susceptible to suggestion—adopts those answers. It is hardly a model of a confession that emanates from the defendant’s knowledge, rather than the officers’ suggestions. And the confession, as was true with Williams, was essentially the entire case against Dassey. (The interrogation is also videotaped, which makes any factual disputes and characterizations less significant.)
Also like Williams, Dassey’s argument has attracted the notable support of formal prosecutors and law enforcement officials, including in an effective amicus brief by Lisa Blatt, Anthony Franze, and other lawyers at Arnold & Porter. The brief, on behalf of current and former prosecutors, highlights how many interrogation techniques are not suited to interrogating juveniles or intellectually limited individuals, and how using those techniques in juvenile interrogations has generated and will generate false confessions.
Another parallel with Williams is that Dassey involves allegations that a state court has declined to apply relevant Supreme Court precedent, and, in doing so, enabled a serious constitutional violation.
But Dassey involves one wrinkle that Williams did not, which is that Dassey comes to the Court on federal post-conviction review, rather than on direct review of a state court judgment. Thus, the limitations of the Anti-Terrorism and Effective Death Penalty Act restrict the scope of the Supreme Court’s review; Dassey has to show not just that the Wisconsin court’s decision is wrong, but that it was *unreasonably* wrong.
At first blush, that obstacle is a significant one. The Supreme Court has, after all, repeatedly emphasized the severity of AEDPA’s restrictions, and the state makes much of this in its brief in opposition, arguing that AEDPA’s limitations make Dassey a less than ideal vehicle for reviewing the legality of a confession extracted from a juvenile with intellectual limitations.
While I’m no fan of AEDPA, I agree that its restrictions are severe. But I’m not sure that it is quite the obstacle the state makes, for a few reasons. One is that despite the Court’s persistent appetite for reversing grants of habeas in light of AEDPA, it has also decided a number of claims in cases that are constrained by AEDPA. To name a few:
Lafler v. Cooper
Miller-El v. Dretke
Rompilla v. Beard
Miller-El v. Cockrell
Buck v. Davis
Wiggins v. Smith
Panetti v. Quarterman
Moreover, the fact that the Court has taken up so many AEDPA cases and ruled against defendants, including in summary reversals, provides a reason for the Court to find an example to highlight when relief under AEDPA is appropriate. As Justice Sotomayor wrote in her dissent in Kisela v. Hughes with respect to qualified immunity:
As I have previously noted, this Court routinely displays an unflinching willingness “to summarily reverse courts for wrongly denying officers the protection of qualified immunity” but “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.” See also Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018) (“[N]early all of the Supreme Court’s qualified immunity cases come out the same way—by finding immunity for the officials”); Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244–1250 (2015). Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.
Relatedly, the state’s argument that the legality of the confession turns on a fact-bound standard, rather than a rule, cuts both ways. While it is true that the state has more leeway in applying generally worded standards, that also impresses the need for the Court to take more cases to establish the contours of the standard. That is particularly true for the voluntariness standard: As Eve Primus explained in a Michigan Law Reviewarticle, the Court’s other confession jurisprudence (particularly related to Miranda and Massiah) has created a need to impose more rules on the voluntariness standard for confessions. (Dassey’s cert petition is also supported by an amicus brief on behalf of criminal law and criminal procedure professors.) And for a variety of reasons, there are reasons for the Supreme Court not to shy away from taking cases that are in federal post-conviction review. One reason is that the Supreme Court’s decision in Lawrence v. Florida creates a disincentive for defendants to seek Supreme Court review of state court decisions: Lawrence held that the time between the state supreme court’s decision in state post-conviction proceedings and the U.S. Supreme Court’s disposition of a petition for certiorari counts against AEDPA’s one-year statute of limitations. Some state court prisoners thus may not seek Supreme Court review, or proceed directly to federal post-conviction review, which can then function as a reason against certiorari.
Dassey thus provides the Court an opportunity to clarify the voluntariness standard, particularly how it applies to juvenile interrogations and juvenile confessions. That Dassey and Williams made it to the Court in such quick succession underscores a point made by two of the amicus briefs in Dassey: Treating juveniles interrogations and confessions like adult interrogations and confessions is a widespread problem, and one that risks false confessions and wrongful convictions.