"This is an unbelievably important case,” says Wilmer Hale's Seth Waxman, who wrote the petition on Brendan Dassey’s behalf. The petition had been on the justices' Thursday conference list but was later rescheduled.
It is rare for a cert petition to include discs that will allow the justices to watch the video of a controversial criminal confession to police that is at the crux of the case before them.
Rarer still is the fact that the confession has also been watched by millions of Netflix viewers in the 2015 “Making a Murderer” series. Thousands of viewers who found the confession to be coerced signed petitions to have the juvenile defendant set free.
The high-profile case is Dassey v. Dittmann, and the justices were scheduled on Thursday to review the petition. (That review has been rescheduled.) Brendan Dassey was convicted in 2005 in Wisconsin on rape and murder and sentenced to life, based on the taped confession and little or nothing else. He was 16 at the time, and borderline intellectually disabled. His lawyers sought to suppress the confession. (His better-known uncle Steven Avery was also convicted on murder and other charges.)
Wisconsin courts ruled that Dassey’s confession was voluntary, but on habeas review, a federal district court judge found the confession was “clearly involuntary.” A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit also sided with Dassey, but on review, an en banc panel disagreed, ruling that state courts deserved “leeway” to declare the confession voluntary.
Former U.S. Solicitor General Seth Waxman, now partner at Wilmer Cutler Pickering Hale and Dorr, wrote the petition on Dassey’s behalf, seeking review of the Seventh Circuit ruling. Waxman declined to talk about the substance of the case, but he did describe how his representation came about.
“I received a call out of the blue” from Dassey’s lawyers, he said, adding that he was unfamiliar with the case and with the Netflix series at the time. But he said he would look at the state court decisions. “I read them and realized this is an unbelievably important case,” Waxman said.
The petition has extra heft because of an array of cert-stage amicus briefs filed in its wake. The brief in opposition by Wisconsin Solicitor General Misha Tseytlin calls the case “a splitless request for error correction.”
Here are some of the data points from the briefs that could compel the court to grant cert before the current term is over:
➤➤ A brief on behalf of law enforcement instructors may have said it all: Interrogation specialists are using the Dassey confession tapes “to highlight unreliable practices to be avoided and to show ‘what not to do’ in interrogations involving juveniles and individuals with intellectual impairments.”
➤➤ A series of Supreme Court precedents established that the “greatest care must be taken” to ensure juvenile confessions are voluntary. But the court has not dealt with the issue in nearly 40 years, standards have slipped, and Waxman said in his petition that reaffirmance is “urgently needed.”
➤➤ Meantime, new social science research undercuts the notion that “innocent people do not confess.” The Innocence Project brief asserts that one in four of the 354 inmates who have been exonerated because of DNA evidence had confessed to the crimes they did not commit.
➤➤ For decades, the American Psychological Association had a policy against filing briefs at the cert stage. But it decided to do so in Dassey because, in the words of counsel of record Beth Brinkmann of Covington & Burling, of “the great need for Supreme Court review of the issues arising from the unique convergence of psychological research involving false confessions, juveniles, and those with intellectual disabilities.”
➤➤ Waxman’s petition makes no mention of the Netflix series, but an amicus brief on behalf of former and current prosecutors who side with Dassey cites the outrage viewers showed after seeing “Making a Murderer.” The case “stands on the record and warrants review even without the documentary,” said Arnold & Porter’s Anthony Franze, counsel of record on the brief. But in light of the widespread attention to the Dassey confession, Franze wrote in the brief, reviewing the case “will also help restore the public’s faith in our justice system.”
Tony Mauro, based in Washington, covers the U.S. Supreme Court. A lead writer for ALM's Supreme Court Brief, Tony focuses on the court's history and traditions, appellate advocacy and the SCOTUS cases that matter most to business litigators. Contact him at email@example.com. On Twitter: @Tonymauro