In Dassey v. Dittmann (August 2016) the US District Court, E.D. Wisconsin, ruled that Brendan Dassey’s confession was involuntary. Brendan Dassey’s confession to involvement in the murder of Teresa Halbach was depicted in the Netflix series “Making a Murderer”. The District Court ruled that the confession was the result of promises of leniency.

The District Court stated that, “the state courts unreasonably found that the investigators never made Dassey any promises during the March 1, 2006 interrogation. The investigators repeatedly claimed to already know what happened on October 31 and assured Dassey that he had nothing to worry about. These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments.”

From the District Court’s opinion:

The court must look to all relevant facts to determine whether Dassey’s March 1 confession was voluntary. The interview occurred mid-day rather than in the early morning hours, or at a time when Dassey might expect to be asleep… The questioning was not particularly prolonged. Although Dassey was in the interview room from about 11:00 a.m. until 4:00 p.m., the relevant questioning spanned less than three hours… Dassey was left alone for less than two hours, the longest single stretch being about 50 minutes. He was offered food and beverages. Although the interview occurred in a police station, it was in a “soft interview room,” with carpeting and upholstered furniture as opposed to a room with an uncarpeted floor, a hard table, and chairs. Wiegert advised Dassey of his rights under Miranda, including the right to not answer questions, to stop the questioning, and to have an attorney appointed for him and present during any questioning.

Dassey exhibited no signs of agitation or distress throughout the interview (he sobbed only after being told he was under arrest). The investigators maintained calm tones, never using aggressive or confrontational tactics. If these were the only relevant facts, they would tend to support a finding that the March 1 confession was voluntary. But when assessed against all of the circumstances of Dassey’s interrogation, these facts are overshadowed by far more consequential facts.

For starters, Dassey was a juvenile – only 16 years old – at the time of his confession.

Also significant is the fact that investigators questioned Dassey without the presence of a arent or other adult looking out for his interests. It is true that neither federal law nor the United States Constitution requires that the police even inform a juvenile’s parents that the juvenile is being questioned or honor a juvenile’s request that a parent or other adult (other than a lawyer) be present during questioning… However, because “[i]t is easier to overbear the will of a juvenile than of a parent or attorney, ... in marginal cases–when it appears the officer or agent has attempted to take advantage of the suspect’s youth or mental shortcomings–lack of parental or legal advice could tip the balance against admission.”

Not only did Dassey not have the benefit of an adult present to look out for his interests, the investigators exploited the absence of such an adult by repeatedly suggesting that they were looking out for his interests: “I wanna assure you that Mark and I both are in your corner, we’re on your side ...” and “... I’m your friend right now, but I ... gotta believe in you and if I don’t believe in you, I can’t go to bat for you.”

Moreover, Dassey’s borderline to below average intellectual ability likely made him more susceptible to coercive pressures than a peer of higher intellect… Although he attended regular education classes, Dassey received special education support services.

Ten years earlier, his IQ was assessed at an overall score of 74.

Crucial in the voluntariness analysis is what the investigators told Dassey at the beginning of the interrogation. Fassbender assured Dassey, “from what I’m seeing ... I’m thinking you’re all right. OK, you don’t have to worry about things.” In isolation, such a statement would not be a problem. Based on what the investigators actually knew at that time, they very possibly believed Dassey to be merely a witness.

However, less than two minutes later, Wiegert assured Dassey, “We pretty much know everything[.] [T]hat’s why we’re talking to you again today.” … The combination of these statements, that the investigators already “pretty much know everything” and that Dassey did not “have to worry about things,” is an entirely different matter. The investigators were not merely telling Dassey, “Based upon what you have told us so far, we don’t think you have anything to worry about.” Rather, what they told Dassey was, “We already know what happened and you don’t have anything to worry about.” The investigators’ assertions that they already knew what happened and assurances that Dassey did not have anything to worry about were not confined to an isolated instance at the beginning but rather persisted throughout the interrogation.

Dassey’s conduct during the interrogation and his reaction to being told he was under arrest clearly indicate that he really did believe that, if he told the investigators what they professed to already know, he would not be arrested for what he said.

The investigators’ statements were not merely ambiguous promises to Dassey that cooperating would lead to a better deal or that the investigators would “stand behind” him or “go to bat” for him, … Rather, the investigators’ collective statements throughout the interrogation clearly led Dassey to believe that he would not be punished for telling them the incriminating details they professed to already know. While at one point Wiegert did rotely say, “We can’t make any promises...” this single, isolated statement was drowned out by the host of assurances that they already knew what happened and that Dassey had nothing to worry about.

Thus, the state courts’ finding that there were no “promises of leniency” was “against the clear and convincing weight of the evidence….”

The Supreme Court has long recognized that a false promise is a powerful force in overcoming a person’s free will…. Consequently, “[a] false promise of lenience is ‘an example of forbidden [interrogation] tactics, for it would impede the suspect in making an informed choice as to whether he was better off confessing or clamming up.’”

More than merely assuring Dassey that he would not be punished if he admitted participating in the offenses, the investigators suggested to Dassey that he would be punished if he did not tell “the truth.” Especially when the investigators’ promises, assurances, and threats of negative consequences are assessed in conjunction with Dassey’s age, intellectual deficits, lack of experience in dealing with the police, the absence of a parent, and other relevant personal characteristics, the free will of a reasonable person in Dassey’s position would have been overborne. Once considered in this proper light, the conclusion that Dassey’s statement was involuntary under the totality of the circumstances is not one about which “fairminded jurists could disagree.”

That said, the court does not ascribe any ill motive to the investigators. Rather than an intentional and concerted effort to trick Dassey into confessing, what occurred here may have been the product of the investigators failing to appreciate how combining statements that they already “knew everything that happened” with assurances that Dassey was “OK” and had nothing to worry about collectively resulted in constitutionally impermissible promises.