Journal Times editorial: State should let Brendan Dassey, Steven Avery's nephew, go free

The following editorial was published by the Journal Times (Racine, Wisconsin) on August 21, 2016.

The seemingly never-ending case of the murder of Teresa Halbach took another strange turn this month, when a federal magistrate in Milwaukee overturned the murder conviction of Brendan Dassey, the nephew of Steven Avery who also was convicted in the crime.

Halbach, a 25-year-old photographer, was raped and brutally murdered on Halloween 2005 near Avery’s Manitowoc County family salvage yard, where she had gone to take photos for a car sale magazine. Her bones were later found in a burn pit near Avery’s trailer.

U.S. Magistrate Judge William Duffin concluded that Dassey’s constitutional rights had been violated and was highly critical of the actions of investigators, Dassey’s attorney and state courts in securing a pressured confession from the then-16-year-old who suffers from learning disabilities.

He gave prosecutors 90 days to decide whether to retry Dassey, who has been in prison now for almost a decade, to appeal his decision or to set him free.

Duffin wrote in his 91-page decision that the prosecutor’s investigators made false promises to Dassey during multiple interrogations.

“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 (which was later recanted) involuntary under the Fifth and Fourteenth Amendments,” Duffin wrote.

He added that “based on its review of the record, the court acknowledges significant doubts as to the reliability of Dassey’s confession. Crucial details evolved through repeated leading and suggestive questioning and generally stopped changing only after the investigators, in some manner, indicated to Dassey that he finally gave the answer they were looking for.”

Indeed, transcripts of the interrogations — conducted without a parent or legal counsel present — show exactly that, with the investigators telling him repeatedly that they are on his side and that they knew all the details of the murder, but just needed Dassey to tell them.

Dassey’s accounts varied widely, with investigators prompting him until they got answers that squared with their narrative. In one sequence, Dassey tells them Halbach was never in the garage on the property, then moments later says she was shot in her car inside the garage — and then says she was on the floor of the garage when she was shot.

One investigator affirmed that narrative and tells him: “That makes sense. Now we believe you.”

Through it all, Dassey clearly buys into the veiled promises of his interrogators that if he is honest, he will be set free. He is so apparently clueless as to the import of his confession that, at the end, he asks his interrogators: “Am I going to be (back) at school before school ends?”

Told, instead that he is being arrested, he asks: “Is it only for the one day, or ...”

What is remarkable about Dassey’s case is that state courts did not countenance appeals on his behalf. A coerced or guided confession from a young, mentally challenged boy is not something we expect from our criminal justice system. Yet the Wisconsin State Supreme Court declined to take it up.

So where does the state go from here? The most likely scenario is that the state will appeal Duffin’s decision, because prosecutors never like to give up a conviction. It is highly unlikely they will go back to court to retry Dassey, because they would have to do so without his recanted confession. There is little or no physical evidence connecting him to Halbach’s murder.

The other option is to set Dassey free — and the state should give that choice serious consideration.

Avery will still be behind bars and – barring some new exculpatory evidence, which his appeals lawyer has promised and may come in an appeals filing this month – he will stay there. Dassey never testified at his uncle’s trial and his release would not affect Avery’s case.

We would like to see this sordid, heinous piece of Wisconsin history put in the past, but that seems unlikely any time soon.