Federal judges hear Dassey's case for freedom

Sketch courtesy: Thomas Gianni

Published February 14, 2017 CHICAGO (WBAY) - A federal appeals court in Chicago will decide the fate of “Making A Murderer” subject Brendan Dassey after hearing arguments from both sides Tuesday morning.

Dassey’s attorney Laura Nirider and Wisconsin Department of Justice prosecutor Luke Berg presented their arguments in front of a panel of three judges on Seventh Circuit Court of Appeals. Emily Matesic of Action 2 News sat in on the hearing.

Dassey and his uncle Steven Avery were convicted in separate trials for the 2005 murder of Teresa Halbach in Manitowoc County. Their cases gained international attention following the Netflix release of a documentary series “Making a Murderer.”

In August, federal judge William Duffin overturned Dassey’s 1st Degree Intentional Homicide conviction, ruling that Dassey’s confession was improperly obtained by Manitowoc County investigators due to his age (he was 16 at the time); intellectual deficits and lack of adult present for his questioning. The ruling states that Dassey’s confession to helping his uncle rape and kill Halbach was involuntary under the Fifth and Fourteenth Amendments to the U.S. Constitution.

The state appealed that decision to the Seventh Circuit Court and asked for oral arguments, which were presided over Tuesday by Judge David F. Hamilton, Judge Ilana D. Rovner, and Judge Ann C. Williams.

Each side was given twenty minutes to make their case — the state defending the investigators’ questioning of Dassey which led to his confession, and the defense claiming Dassey only said what investigators told him to say.

Sketch courtesy: Thomas Gianni
Sketch courtesy: Thomas Gianni
As Teresa Halbach’s parents and two brothers looked on, Prosecutor Berg defended the investigators’ work obtaining Dassey’s confession. “Brendan Dassey chose to confess to release those terrible images of Teresa Halbach that were haunting him. The investigators encouraged him to get it out, but did not apply any improper pressure.”

One of the judges immediately interrupted Berg, asking him if Dassey, a 16-year-old with a low IQ, would misinterpret investigator statements — such as “honesty will set you free” — to mean he would be able to go home after talking with police. The government cannot promise a suspect freedom in return for a confession.

“I want you to imagine it is not an average person but a 16-year-old with a very, very low IQ, who is extremely suggestible,” Justice Rovner said.

“I think neither an average person nor Dassey would interpret that statement as meaning he could go home,” Berg said. “Nothing the investigators said actually promised a specific benefit in exchange for cooperation.”

Dassey’s suggestibility is a main point of argument for his legal team. Nirider started by arguing that investigators offered her client, a teenager with a 73 IQ, a “false promise of leniency.”

“This message was repeated not once, not twice, but in a cumulative drumbeat over and over, and was referenced between each major admission in the case,” Nirider said.

“When we have someone like Brendan with his slew of limitations, staggeringly suggestible — more suggestible than 95 percent of the population. A concrete thinker, the kind of person likely to interpret idioms like ‘honesty will set you free’ literally. The repeated drumbeat of messages that were sent to him clearly, clearly overbore his will.”

Judge Hamilton, though, stated that he didn’t believe that his will was overbore, because Miranda rights were read to Brendan and investigators didn’t directly promise Brendan his freedom.

But Nirider said if it wasn’t a direct promise it still sounded that way to Dassey.

“The state court found no promises of leniency so it never considered the true totality here. It never considered the way in which these promises interface with Brendan’s learning disabilities, his suggestibility, his concrete thinking,” she said.

Nirider also argues that Dassey’s pre-trial attorney Len Kachinsky was ineffective, and that no physical evidence tied Dassey to the murder of Teresa Halbach.

In his rebuttal, Berg said it wasn’t the investigators who made Dassey confess by promising him anything but Dassey himself clearing his conscience.

“I think the details that Dassey provided that are most telling are his memories of Teresa, because that’s what you would expect would be burned into his mind, and none of them were suggested by the officers,” Berg argued. “None of those memories were planted. They were raw and real. Dassey wanted to get them out and he did so voluntarily. I would ask this court to reverse the district courts unprecedented order.”

The judges ended the hearing by thanking both sides. It will now be up to the judges to determine whether Dassey’s confession is admissible, or uphold the August ruling overturning the conviction.

Action 2 News has been told that the court won’t issue a decision until sometime after June.

No attorneys who presented to the court had comment after the hearing. Brendan Dassey’s parents and extended family did not attend, but groups of Dassey supporters were in the courtroom.

The special prosecutor, former Calumet County District Attorney Ken Kratz, was in court watching. He believes the confession was obtained properly.

“I am hopeful that the confession will not be overturned, and that this decision will affirm what the state’s courts of Wisconsin have consistently held in this case that there was no improper influence,” Kratz told us.

The state has had success with the Seventh Circuit Court of Appeals in the past.

Sketch courtesy: Thomas Gianni
Sketch courtesy: Thomas Gianni
After Judge Duffin ruled that Dassey be released from prison pending appeal, the state went to the court to stop Dassey’s release. The court ruled in the state’s favor, saying Dassey must remain behind bars pending the outcome of the appeal.

Dassey’s uncle Steven Avery is also appealing his conviction. Avery has claimed that he was framed for the Halbach murder.

Avery’s attorney, Kathleen Zellner, says the Wisconsin State Crime Lab is conducting advanced forensic testing on eight pieces of evidence. Most of it is from Halbach’s SUV found on Avery’s Salvage property in 2005. The testing is more advanced than what was available in 2007, when Avery was convicted of murdering Halbach.

Wisconsin Attorney General Brad Schimel said he couldn’t imagine the tests will produce any new results.