Wednesday, April 4, 2018

The Appearance of (In)Justice

As fans of Making a Murderer know, a 16-year-old kid named Brendan Dassey was railroaded into confessing to a murder that, by every measure, he had nothing to do with.  Not surprisingly, the elected Wisconsin trial court judge found that his “confession” was “voluntary” and therefore admissible against him at trial.  (Never mind the interrogators’ dozens of threats and false promises of leniency.)  Equally unsurprising, the jury bought the prosecutor’s sophistry — he famously but falsely claimed that innocent people don’t confess — and convicted Dassey as a “party to the crime” of murder and other offenses.  And once again, unsurprisingly, the state appellate court rubber-stamped Dassey’s conviction in a superficial, two-paragraph “analysis” of the facts and law.  But after that, things got really interesting. 

In a rare scenario where a state-court decision actually works its way into the federal court system, the Federal District Court held that Dassey’s alleged confession was probably untruthful and, more to the point, was coerced and inadmissible.  Therefore, it should never have been used as evidence against him at his trial.  Then, the Seventh Circuit Federal Court of Appeals agreed.  But then, the flip-flopping Seventh Circuit changed its mind.  Although Dassey’s confession may have been untruthful, even involuntary, and even inadmissible, none of that matters!  Instead, due to a bizarre legal standard called the “AEDPA,” the Wisconsin state appellate court’s decision might have been wrong, but it wasn’t “so wrong” as to justify a new trial.  (And people say that defense lawyers are the ones who parse words to their advantage!) 

This smells of gross injustice.  That’s why even prosecutors are arguing that the Supreme Court of the United States should accept Dassey’s case for review.   The prosecutors’ point: No one trusts the criminal justice system, especially after Jerry Buting’s book Illusion of Justice, and my book, Convicting Avery (which, by the way, was recently named among “the best true crime books of 2017”).  For more on the prosecutors’ argument, see page 22 (and footnote 14) of their brief to the Supreme Court of the United States.  Their point: the appearance of justice is important, and our nation’s high court needs to weigh in on Dassey’s case to restore some level of trust in our system.   

For more on Dassey’s case, stay tuned for Making a Murderer season 2 on Netflix, and my forthcoming book Anatomy of a False Confession: The Interrogation and Conviction of Brendan Dassey (Rowman & Littlefield, Nov. 2018).  In the book I expose the numerous tricks that government agents Wiegert and Fassbender (along with other interrogators) used to coerce the 16-year-old child Brendan Dassey to falsely confess to the murder of Teresa Halbach.

Until then, check out Illusion of Justice, Convicting Avery, and of course Making a Murderer.  And most obviously, remember that silence can be golden.


  1. The AEDPA is a sick,sick standard, designed to make the constitution as functional as used toilet paper. I know, I researched federal appeals cases for years for a wrongly convicted friend.What happened to Branden Dassey is not unusual in federal appeals and hopefully it brings the spotlight to move Congress to get rid of the AEDPA.I pray for a miracle for Branden, because there is no greater absurd, unjust legislation on this planet, that the judges just love to apply.

  2. What a simplistic, moronic article, the main purpose of which is apparently to promote your book. You may not like AEDPA, but you can hardly fault the Seventh Circuit for applying it and following Supreme Court precedent, and yet you do.

    1. Anonymous, thanks for reading The Dog. A few points in reply:

      Yes, I absolutely DO fault the court for applying the AEDPA. And four federal judges agree. The District Court judge wrote that, because the state appellate court’s two paragraphs were so devoid of analysis, Dassey’s claim is to be “analyzed under the pre-AEDPA standard – that is, de novo – because there is no state court analysis to apply AEDPA standards to.” And three dissenting Seventh Circuit judges wrote: “AEDPA does not paralyze us in the face of a clear constitutional violation.”

      As for following Supreme Court precedent, that is exactly the point of the District Court judge and the three dissenting judges. The majority’s opinion relied exclusively on law that pre-dated the Supreme Court’s mandate to analyze juvenile confessions differently. Dassey’s federal cases are long, but worth the read. You’d really have to dive into those to get a handle on the issues and arguments.

      My main purpose for writing the blog post was to point out (and link to) the prosecutors’ amicus brief that urges the Supreme Court to accept Dassey’s case. Their reasoning: people are losing confidence in the criminal justice system due to Dassey’s case and, as they point out in one of their footnotes, books like Illusion of Justice (Buting) and Convicting Avery (mine).

      Yes, I do promote my books (and in this post, Buting’s as well). With regard to Convicting Avery, for example, I spent many months and many, many hundreds of hours researching, writing, revising, and working with Prometheus Books to bring the book to print. Same goes for my previous books and my forthcoming book. Most authors do promote their work.

      Finally, I can head-off the next criticism that I’m sure is brewing in your head: I don’t write for money (not that there would be anything wrong with that). Rather, I write DESPITE the economic loss I suffer with every one of my law review articles (which pay nothing) and every one of my books (which pay far less than even a public defender appointment). But that’s the topic of a different blog post, which you can read here:

    2. Love your response! :) ps love that that you put your name to what you write

    3. Thanks Michelle! Much appreciated. I've never understood why some people write anonymously.

  3. Look forward to reading your book when it comes out.

  4. From personal experience I have been a victim of corruption in the police force in Australia and they helped a man hide a murder for three years. It’s disgusting how low the police can get to get the results they want

  5. I have read both yours & Jerome Butings books. I live in Australia and struggle with the unfairness of your legal system. The more people like you two, write these books, the more I hope your legal system can be reformed. I just wish it wasn’t at the expense of Steven Avery & Brendon Dassey. I struggle with the unfairness of this whole system. I hope you make a difference

  6. Thanks for your support and for reading the books! Wisconsin is especially tough to get anything reformed; our legislature keeps adding more and more crimes and keeps increasing the penalties. And prosecutors are fighting like mad to maintain our state's low burden of proof at criminal trials. We have made some progress on that front, though. It's far from true reform, but you can read about it here: