7th Circuit Court Brendan Dassey Decision

Case: 16-3397 Document: 43 Filed: 06/22/2017 Pages: 128
In the
United States Court of Appeals

For the Seventh Circuit
____________________
No.163397
BRENDANDASSEY,
PetitionerAppellee,
v.
MICHAELA.DITTMANN,
RespondentAppellant.
____________________
AppealfromtheUnitedStatesDistrictCourtforthe
EasternDistrictofWisconsin.
No.1:14cv01310WilliamE.Duffin,MagistrateJudge.
____________________
ARGUEDFEBRUARY14,2017DECIDEDJUNE22,2017
____________________
BeforeROVNER,WILLIAMS,andHAMILTON,CircuitJudges.
ROVNER, Circuit Judge. Teresa Halbach disappeared on
HalloweenDay,2005.Herconcernedfamilyandfriendscon
tactedlawenforcementaftershedidnotshowupatthepho
tography studio where she worked and her voice mailbox
wasfull.Lawenforcementofficersquicklyzeroedinonthe
Avery Auto Salvage yard in Two Rivers, Wisconsin, as the
lastplaceshewasknowntohavegone,and,inparticular,on
StevenAvery,thesonofthesalvageyardownerwholived
2 No.163397
inatrailerontheproperty.Earlierintheday,Averycalled
Auto Trader magazine, for whom Halbach sometimes took
photographs, to request that she take photographs of a
minivan that he wished to sell in its magazine. Eventually
thepolicebegantosuspectthatAverys16yearoldnephew,
BrendanDassey,whoalsolivedontheproperty,mighthave
beenawitnessorhadinformationaboutHalbachsmurder.
After a few preliminary conversations, the investigators
wereconcernedenoughtocallDasseyintothepolicestation
forafullinterrogation.Aftermanyhoursofquestioningand
interrogation spread over several days, Dassey confessed
thathe,alongwithAvery,hadrapedandbrutallymurdered
Halbachandthenburnedherbodyinanonsitefirepit.By
thetimeofthetrial,Dasseyhadrecantedhisconfession,and
the State had failed to find any physical evidence linking
himtothecrime,buthewasconvictedandsentencedtolife
in prison nonetheless. After appeals and postconviction
proceedingsinthestatecourtfailedtobringhimrelief.The
statecourtonpostconvictionreviewstatedthegeneralized
standard for evaluating the voluntariness of a confession
totality of the circumstancesbutfailed to note how that ju
venileconfessionrequiresmorecareandfailedtoapplythe
standard at all. Dassey filed a petition for a writ of habeas
corpusinthedistrictcourt,claimingthathedidnotreceive
effective assistance of counsel and that his confession was
not voluntarily given. The district court, concluding as we
do that the state court did not apply the proper standard,
granted the writ. Despite the limited role of a federal court
onhabeasreviewwemustaffirm.Ifastatecourtcanevade
all federal review by merely parroting the correct Supreme
Courtlaw,thenthewritofhabeascorpusismeaningless.

No.163397 3
I.
Thefactsrelatedtothiscaseareexpansiveandconvolut
ed, and those facts have been reported in various iterations
throughout the decisions of the state courts of Wisconsin
andinthedistrictcourt.Weborrowheavilyfromthedistrict
courtandreportjustthosefactsneededforpurposesofthis
appealandreferthereadertothefulldistrictcourtopinion,
Dasseyv.Dittmann,201F.Supp.3d963(E.D.Wisc.2016)for
furtherdetails.
Teresa Halbach was a 25yearold summa cum laude
graduateoftheUniversityofWisconsinGreenBaywhowas
runningherownphotographybusiness.Shewasthesecond
oldest of five children in a tightknit family, and lived in a
farmhouse a quarter mile from her parents. On October 31,
2005,shephotographedthreevehiclesforAutoTraderMag
azine. She took the third and final series of photographs at
the Avery salvage yard. She never returned home. Her life
andcareerwerecutshortbyaheinousandsenselesscrime.
Her brutally burnedbodyprovidedfewcluesabouther
death, but other investigative methods provided the state
court with the following facts. Halbach had taken photo
graphs at the Avery property on five prior occasions, and
AverycalledAutoTraderthemorningofOctober31andre
quested that the same girl who had been out here before
comeandtakepicturesofavehiclethatwasforsale.Justbe
fore2:30p.m.,HalbachcontactedAutoTraderMagazineand
saidthatshewasonherwaytotheAveryproperty.Some
time around 2:30 or 2:45 p.m., a neighbor of Averys saw
Halbachphotographingaminivanandthenproceedtoward
Averysresidence.Theneighborlefthomeatabout3:00p.m.
and observed Halbachs 1999 Toyota RAV4 still outside
4 No.163397
Averys residence but did not see Halbach. When he re

turned home at approximately 5:00 p.m., Halbachs RAV4
was gone. Halbach was not seen or heard from after that
time.
On November 5, 2005, volunteer searchers scoured the
fortyacre,4,000+vehiclesalvageyardandfoundHalbachs
RAV4partiallycoveredbytreebranches,fenceposts,boxes,
plywood, and auto parts. The license plates had been re
movedandthebatterycablesdisconnected.
Based on that discovery, investigators obtained a search
warrant for the entire salvage yard and, after a weeklong
search,foundevidencethatHalbachwasthevictimofahor
rendouscrime.Someofthatevidencecamefromaburnbar
rel and a fourfoot by sixfoot burn pit near Averys trailer.
In those burn areas, investigators found Halbachs charred
bone and dental remains, burned remnants of a cell phone
andcameraofthesamemakeandmodelthatHalbachused,
andazipperandrivetsfromabrandofwomensjeansthat
Halbach was known to wear. State crime lab experts later
determined,basedontheskullfragments,thatHalbachhad
beenshottwiceinthehead.Multiplewitnessesreportedsee
ing a large bonfire in the burn pit outside of Averys resi
denceonOctober31.ThepolicearrestedAveryafterthedis
coveryofthisevidence.
Forensic investigators found a roughly sixinch blood
stain in the rear cargo area of Halbachs RAV4, and other
smaller stains in and around the cargo area that matched
HalbachsDNA.AlsointheRAV4,forensicexaminersfound
very small blood stains that matched Averys DNA profile
onthefollowinglocations:apaneljusttotherightoftheig
nition, a CD case, ametal panel between the rear seats and
No.163397 5
thevehiclecargoarea,thedriversseat,thefrontpassengers
seat, and the floor next to the center console. AverysDNA
wasalsodetectedonthehoodlatch.
TheinvestigationofAverycontinuedasheawaitedtrial.
Investigatorsbeganinterviewingfamilymembers,including
Dassey and Averys niece, Kayla Avery. Kayla stated that
hercousinBrendanDasseyhadbeenactinguplately,that
he was staring into space and crying uncontrollably, and
that he had lost roughly forty pounds. Dassey later ex
plainedthattheweightlosshadbeenpartofanefforttofind
agirlfriendandthatthetearshadbeenoverabreakup.But
basedonKaylasinterview,andthefactthatanotherwitness
reported seeing Dassey at the bonfire with Avery around
7:30or7:45p.m.onOctober31,investigatorsdecidedthatit
wasnecessarytoreinterviewDassey.
Calumet County Sheriffs investigator, Mark Wiegert,
and Wisconsin Department of Justice Special Agent, Tom
Fassbender, travelled to Dasseys high school on February
27,2006,and,withouthisparentsknowledge,metwithhim
inaconferenceroomforaboutanhour.Dasseywasasoph
omore who received special education services, and whose
IQ hadbeen measuredatvarious timesbetween 74 and81,
falling fairly far below an average range of intelligence. On
theWechslerscaleofintelligence,Dasseysscoremeantthat
90% of adolescents his age would have performed intellec
tuallybetterthanhedid,andontheKaufmanscale,87%of
adolescentshisagewouldhaveperformedbetter.R.1922at
4849. A psychological expert at trial described Dassey as
highly suggestible, docile, withdrawn, with extreme social
anxiety and social avoidant characteristics, and more sug
gestiblethan95%ofthepopulation.
6 No.163397
Atthatfirstinterviewwiththeofficers,Dasseysaidthat
Averyhadaskedhimtohelploadtiresandanoldvanseat
ontoabonfirenearAverystrailerontheeveningofOctober
31,butthathesawnothingunusualbeforegoinghome.Be
cause of the poor quality of the cassette tape recording of
that interview, the prosecuting attorney requested that the
investigators reinterview Dassey to create a better record.
Wiegert and Fassbender made arrangements to interview
Dasseyagainlaterthatsamedayatthelocalpolicestation.
WiegertandFassbendercontactedDasseysmother,Bar
bara Janda, who met them at the school. The investigators
drove Dassey and Janda to the police station. According to
WiegertandFassbender,Jandadeclinedtheiroffertobepre
sentfortheinterviewandinsteadremainedinawaitingarea
of the police station. R. 1919 at 71. According to Janda, the
investigatorsdiscouragedher from attendingtheinterview.
R. 1930 at 155. This second February 27 interview, which
lasted less than an hour, began with a long monologue by
Fassbender, who sat down with Dassey and said, some
peoplebacktheresayno,welljustchargehim.Wesaidno,
letustalktohim,givehimtheopportunitytocomeforward
with the information that he has, and get it off his chest.
R.1924at5.Then,Fassbendersetforthhisroleintheinves
tigation and made what Dassey characterizes as the first of
manyassurancesandpromises:
MarkandI,yeah,werecops,wereinvestiga
tors and stuff like that, but Imnot right now.
Imafatherthathasakidyouragetoo.Theres

1AllrecordcitesaretotherecordintheUnitedStatesDistrictCourtfor
theEasternDistrictofWisconsin,CaseNo.14CV1310.
No.163397 7
nothing Id like more than to come over and

giveyouahugcuzIknowyourehurtin.Talk
aboutitIpromiseIwillnotleaveyouhigh
anddry.
R.1924at5.Afterthisassurance,Dasseybeganwhatwould
becomeaseriesofalterationsinhisstoryovertime,increas
inghisculpabilityinresponsetosuggestionsbytheinvesti
gators.The first such suggestion cameafterDassey initially
deniedhavingseenanythingbutgarbageandotherdetritus
intheOctober31fire.TheinvestigatorsinsistedthatDassey
musthaveseensomethingsuspiciousinthefire.Fassbender
setforthhissuspicionsasfollows:
Immoreinterestedinwhatyouprobablysaw
inthatfireorsomething.Weknowshewasput
in that fire, theres no doubt about it. The evi
dencespeaksforitself.Andyouwereoutthere
with him. And unfortunately, Im afraid you
saw something that you wished you never
would have seen. You know, I mean thats
whatweneedtoknow.Didyouseeahand,
a foot, something in that fire? Her bones? Did
yousmellsomethingthatwasnottooright?
Id.at56.Then,afterFassbenderinsistedseveraltimesthat
Dasseymusthaveseensomethinginthefire,andsuggesting
the body parts that he had seen, Dassey admitted that he
had seen those same body partsfingers and toes, plus a
forehead,andabellyinthefire.Bytheendofthisinterview,
DasseyreportedthathesawHalbachsbodypartsinafire,
that he saw Avery burn clothing in a fire, and that Avery
had confessed that he had stabbed Halbach, put her in the
fireandhidhercarintheyard.
8 No.163397
FassbendermetwithDasseyagainthateveninginahotel
room where Dassey told Fassbender, in an unrecorded in
terview, that he had stained his pants with bleach as he
helped clean the floor of Averys garage. Wiegert testified
that after those interviews he thought Dassey might have
had some culpability in the criminal disposal of Halbachs
corpse.R.1912at1821;R.1930at38.
On March 1, 2006, the officers returned to Dasseys
schoolforafourthinterview.TheyreadDasseyhisMiranda
rights,andheagainagreedtospeakwiththem.Wiegertand
Fassbender first drove Dassey to his house on the Avery
propertytoretrievethebleachstainedjeansandthendrove
himfortyfiveminutesawaytotheManitowocCountySher
iffs Department. The State asserted that it asked Janda for
permissiontointerviewherson.R.1919at12;1930at156.
Janda claimed that the investigators never asked her if she
wantedtobepresentfortheinterview.R.1930at156.This
fourthinterviewproducedaconfessionthatbecamethekey
evidenceagainstDasseyathistrial.
TheMarch1interviewlastedthreehours,withonehalf
hourbreak,andthenasecondfiftyminutebreakattheend
beforeDasseywastakenintocustody.Theinterrogationwas
conductedinwhatisknownasasoftroomintheSheriffs
Departmentone with a small couch, two soft chairs and
lamps. Dassey was offered food, drink, and access to a re
stroom at the start and at various times throughout the in
terview. The investigators reminded Dassey of his Miranda
rights,andtheinterviewwasaudioandvideorecorded.No
adultwaspresentonDasseysbehalf.
Dasseys March 1 confession unfolded as follows in this
very brief summary: Dassey first admitted only to helping
No.163397 9
AverycleansomefluidfromthegaragefloorafterAverycut
a line of the vehicle on which he was working. Eventually,
after much encouragement, the story evolved to one in
whichDasseysawHalbachsalreadydead,clothed,andtied
upbodyinthebackofherRAV4andhelpedAveryputher
bodyinabonfire.Inthenextiteration,hereportedhearing
screaming at Averys house as he brought Avery his mail.
HeenteredandfoundasweatyAveryandsawHalbachna
ked and handcuffed to Averys bed. Finally, Dassey admit
ted to a horrific series of crimesraping Halbach, cutting
herthroat,tyingherup,cuttingherhair,andthentakingher
tothegaragewhereAveryshotherintheheadandthetwo
ofthemdisposedofherbodyinthefire.Althoughwereport
the evolution of his confession linearly, it is far from that.
Dasseysstorychanges;hebacktracks;officerstrytopinhim
downontimeframesanddetails,buttheyarelikewaveson
thesand.EventheStatehastroubletellingitsversionofthe
timeline of the story in any cogent manner due to the fact
thatitchangedwitheachretelling.SeeBriefofRespondent
Appellantat9,n.3.AlthoughtheStatepresentsacogentsto
rylineinitsbriefonappeal,itdoessobypickingandchoos
ingpiecesfromvariousversionsofDasseysrecitations.
At the very end of the confession, Dasseys mother en
teredtheinterrogationroomandthefollowingexchangeoc
curredaftertheofficerslefttheroom:
Brendan: Igotaquestion?
BarbJanda: Whatsthat?
Brendan: Whatd happen if he says some
thing his storys different? Whhe says he, he
admitstodoingit?
10 No.163397
BarbJanda: Whatdoyoumean?
Brendan: Like if his storys like different,
likeIneverdidnothinorsomethin.
BarbJanda: Didyou?Huh?
Brendan: Notreally.
BarbJanda: Whatdoyoumeannotreally?
Brendan: Theygottomyhead.
R.1925at148.Atthatpoint,oneoftheofficersreenteredthe
roomandtheconversationended.Wewillfillintheremain
ingdetailsofthisconfessionaswediscussthevoluntariness
ofit,velnon,inthefollowingsections.
AlmosttheentiretyoftheStatescaserestedonthesein
terviewsandonephonecallbetweenDasseyandhismother
after his final police interview which we describe below.
There wasnophysicalevidence linkingDassey to themur
der of Halbachinvestigators did not find any of Dasseys
DNA or blood on any of the many objects that were men
tioned in his confessionthe knives in Averys house, gun,
handcuffs,bed,RAV4,key,orautomotivedolly.
After his arrest, the state public defenders office ap
pointedprivateattorneyLenKachinskytorepresentDassey.
KachinskymetwithDasseyonMarch10,2006.Dasseytold
Kachinskythathewasinnocent,thathisconfessionwasnot
true,andthathewantedtotakeapolygraphtest.Afterthis
meeting, despite Dasseys claims of innocence, Kachinsky
spoketothemediaanddescribedDasseyassad,remorseful,
and overwhelmed. The media reported that Kachinsky
blamedAveryforleadingDasseydownthecriminalpath
andsaidthathehadnotruledoutapleadeal.R.1939at4,
No.163397 11
911.Overthenextfewdays,nearlyallofKachinskyswork
on Dasseys case involved communicating with the local
media, during which appearances he stated that there is
quite frankly, no defense, and that all of the investigation
techniques were standard and legitimate, despite the fact
thatKachinskyhadnotyetwatchedtherecordedpolicein
terviewR.1926at142,14445,153,170.DuringeachofKa
chinskys media appearances he indicated that Dassey was
guiltyandwouldlikelyacceptaplea.Kachinskytestifiedat
a postconviction relief hearing that one of his reasons for
making these statements to the media was so that Dassey
and his family would become accustomed to the idea that
Brendan might take a legal option that they dont like.
R.1926at13637.Eventuallytheprosecutorsentanemailto
Kachinsky expressing concern about the pretrial media ap
pearances and referred Kachinsky to the relevant rules of
ethicsforattorneys.
In the meantime, Kachinsky hired investigator Michael
OKelly, with whom he was not familiar, to help in the in
vestigationofthecaseandtoconductthepolygraphexami
nationthatDasseyhadrequested.DespiteDasseysclaimsof
innocence, Kachinsky and OKelly proceeded on the as
sumption that Dassey would plead guilty and assist the
prosecution in Averys case. OKelly testified at the state
postconviction hearing that his goal was to uncover infor
mation and evidence that would bolster the prosecutions
caseagainstAveryevenifthatevidencewouldtendtoin
culpateBrendan,R.1929at47,andthathisemotionssid
ed with what happened to Teresa Halbach. Id. at 96. Ka
chinsky and OKelly even sent information to the prosecu
tionaboutthelocationofaknifetheythoughthadbeenused
in the crime, based on what they had cajoled from Dassey,
12 No.163397
butsearchespursuanttothosetipsdidnotproduceanyevi
dence.
To effectuate his plan to garner Dasseys cooperation in
Averys prosecution, Kachinsky decided that the investiga
tor,OKelly,shouldreinterviewDasseyandcompelhimto
confessyetagain,andshoulddosoafterthetrialjudgede
niedthemotiontosuppresshisMarch1interview,whenhe
wouldbemostvulnerable.R.1926at244.
ShortlybeforeinterviewingDassey,OKellywrotetoKa
chinskyandreferredtotheAveryfamilyascriminalsand
asserted that family members engaged in incestuous sexual
conductandhadahistoryofstalkingwomen.R.1929at93.
Hecontinued,Thisistrulywherethedevilresidesincom
fort. I can find no good in any member. These people are
pureevil.Id.OKellyquotedafriendashavingsaid,This
isaonebranchfamilytree.Cutthistreedown.Weneedto
endthegenepoolhere.Id.at94.OKellythoughtthatDas
seysclaimofinnocencewasanunrealisticfantasythat
was influenced by his family. R. 1929 at 83, 84, 8688. On
OKellys recommendation, Kachinsky canceled a planned
visitwithDasseybecauseDasseyneedstobealone.R.19
26at24849.OKellysaid,Heneedstotrustmeandthedi
rectionthatIsteerhiminto.R.1926at249.
OKellybeganhisinterviewwithDassey,whichhevideo
recorded without permission from Dasseys parents, by
pointing to what he said were the polygraph examination
resultsonalaptopcomputerscreenandaskingDasseyifhe
could read them. R. 1938 at 1. Despite having previously
toldKachinskythattheresultsofthepolygraphexamination
No.163397 13
wereinconclusiveR.1926at210,2OKellytoldDasseythat
the polygraph indicated deception and that the probability
of deception was 98%. R. 1938 at 1. When Dassey asked
what that meant, OKelly asked what he thought it meant.
R.1938at1.Dasseyresponded,ThatIpassedit?R.1938
at 1. It says deception indicated, OKelly responded, em
phasizingdeception.Id.Afteralongpause,Dasseyasked,
ThatIfailedit[?]Id.
OKellyproceededtoharangueDasseywithphotographs
and personal effects of Halbach, threaten him with life in
prison, and badger him to admit that he was sorry. Dassey
continuedtoprofesshisinnocence,insisting,Idontknow
[if Im sorry], because I didnt do anything, to which
OKellyresponded,Ifyourenotsorry,Icanthelpyou
Doyouwanttospendtherestofyourlifeinprison?Youdid
a very bad thing. R. 1938 at 2. Dassey responded, Yeah,
butIwasonlythereforthefirethough.Id.

2 Dasseys lawyer hired an expert who was prepared to testify that the
polygraph showed no deception, but the state trial judge excluded any
testimony about the polygraph. R. 1930 at 231233. The reliability and
validityofpolygraphevidenceishotlydebatedinthelegalandscientific
community.UnitedStatesv.Scheffer,523U.S.303,309(1998).Thereisnot
asetstandardofscoringforPolygraphexaminations.Insomenumerical
scoring systems, the scores range from 3 for a dramatic reaction to a
controlquestionto3forthesametypeofreactiontoarelevantquestion.
Noticeablebutsmallerreactionsarescored1or1.Alackofasignificant
reaction is scored 0. Total scores of 6 or higher indicate truthfulness,
while6orlowerindicatedeception.Scoresthatfallinbetweenarecon
sideredinconclusive.PaulC.Giannelli,PolygraphEvidence:PostDaubert,
49HastingsL.J.895,909(1998).Therecorddoesnotreflectwhatsystem
OKellyusedtoscoreDasseyspolygraphexamination.R.1929at2122.

14 No.163397
Eventually OKellys plan prevailed after he convinced

Dassey that if he confessed he would be sentenced to only
twenty years in prison and could someday be released and
haveafamily.(Thegovernmenthadnot,infact,placedany
pleadealonthetable.)Otherwise,OKellythreatened,Das
seywouldgotoprisonfortherestofhislife.Afteragruel
ing interrogation by OKelly, Dassey confessed, providing
yet another version of the story. OKelly immediately tele
phonedKachinskywhoarrangedforDasseytoundergoan
other police interrogation the next day, May 13. Kachinsky
didnotarrangeforanyimmunityagreements,pleaoffers,or
other safeguards. In fact, he agreed that the State would
providenoconsiderationinexchangeforasecondchance
tointerrogate(thepoliceconsideredthistobeonlythesec
ond interrogation because they considered the first few
meetingstobewitnessinterviews.)R.1926at80;R.1927
at3438.KachinskydidnotaccompanyDasseytothismeet
ing and allowed him to be interrogated without counsel.
That interview differed in many significant ways from the
storyDasseytoldonMarch1,butitwasneveradmittedor
usedattrial.
At the end of the May 13 interview, Fassbender and
WiegertadvisedDasseythatheshouldcallhismotherover
the recorded jail telephone line and admit his guilt so that
she would hear it from him first rather than from the offic
ers.Dasseysmotherwasscheduledtovisithimthefollow
ing day, but the investigators told him that it would be a
good idea to call her before she gets here, tonight. Thats
whatIddo.Cuz,otherwiseshesgoingtobereallymadto
morrow. Better on the phone, isnt it? R. 1934 at 69. The
contents of that telephone call are set forth in the district
courtopinion.Dasseyv.Dittmann,201F.Supp.3dat98081.
No.163397 15
In thatcall,Dasseyexplained whyhewas confessing (fora

lowersentence),toldhismotherthathedidsomeofitbut
denied having sexual contact with Halbach, denied seeing
herinthefire,deniedknowingifAverykilledHalbachbut
asked,SoifIwasinthegaragecleaningupthatstuffonthe
floor,howmuchtimewillIgetthoughforthat?R.1935at
8. He described the liquid on the floor as reddishblack
stuff.Id.
WhenthetrialcourtlearnedthatKachinskyhadallowed
Dasseytobeinterviewedwithoutcounsel,itheldahearing
on the effectiveness of Kachinskys counsel. The trial court
concluded that Kachinskys performance was indefensible
and deficient under the standards set forth in Strickland v.
Washington, 467 U.S. 1267 (1984). The trial judge decertified
Kachinskyfrombeingappointedinmostfelonymattersgo
ingforward,notingparticularlytheegregiousnessofthefact
that Kachinsky had allowed his 16yearold client, who
previous testimony has disclosed to have cognitive ability
withinborderlinetobelowaveragerange,tobeinterviewed
by law enforcement officials without his attorney present.
R.1914at22.Thedecertificationwasprospectiveonlyand
thusdidnotdirectlyapplytoKachinskysrepresentationof
Dassey. Nevertheless, Kachinsky moved to withdraw as
Dasseyscounsel,andthecourtgrantedthemotion.
ThetrialcourtneverlearnedthatKachinskyandOKelly
had worked to compel Dasseys confession, videotaped
OKelly interrogating Dassey, exchanged emails describing
the whole family as evil and criminals, and, without
Dasseys knowledge or consent, sent an email to prosecu
tors on May 5 indicating where they thought the murder
weapon was hidden. No murder weapon was ever found.
16 No.163397
These facts did not come to light until the state post
convictionhearing.
The May 13 interrogation that grew from the poisoned
tree of the OKelly interrogation was neither used nor dis
cussed at trial, but the trial court never made any explicit
ruling on its admissibility. At oral argument the State was
unable to tell this court why the May 13 interview was not
used at trial, but we will assume that based on what the
State concedes was unacceptable representation by Ka
chinsky,theStaterecognizedthattheMay13interviewhad
been irreparably poisoned. But the May 13 phone call that
resulted from the May 13 interrogationthe phone call the
police had urged Dassey to make to his mother on the rec
ordedjailtelephonelinewasusedthreetimesattrial:once
tocrossexamineDassey;oncetocrossexamineDasseysex
pert psychologist, and in closing argument to undermine
Dasseysalibi.
At trial, the centerpiece of the prosecutions case was
DasseysMarch1confession,inwhichheadmittedtopartic
ipatingintheallegedsexualassaultandmurderofHalbach
as well as the disposal of her body. Dasseys defense was
thathisconfessionwasnottrueorvoluntary,thatheaccept
ed his uncles invitation to a bonfire and then helped him
gather items from the salvage yard to burn before helping
Averycleanupsomethingthatlookedlikeautomotivefluid
from the garage floor, staining his pants with bleach in the
process. Dassey testified that he did not know why he had
said the things that he did to the police investigators and
thathe thought that theinvestigatorshadpromised thathe
wouldnotgotojailnomatterwhathetoldthem.
No.163397 17
At trial, Dasseys attorneys presented evidence that the

answers in his confession came not from Dassey, but from
ideasplantedbytheinvestigators,thattheinvestigatorscon
tinuallylinkedtheideathatifDasseygavethemtheanswers
theywantedtohear,thathewouldbeokayandsetfree,and
thatDasseywasextremelysuggestibleandwouldsaythings
topleasetheinvestigatorsandavoidconflict.3Oneexample
that the jury saw, as they watched the four hour interroga
tion,concernedHalbachsshooting.BythetimeoftheMarch
1 confession, forensic examiners had informed law enforce
mentthatHalbachhadbeenshotinthehead,butthisinfor
mationwasnotyetpublic.IfDasseycouldtelltheinvestiga
tors that Halbach had been shot in the head, it would have
been strong evidence of the veracity of his confession. Das
sey had never mentioned that Halbach was shot. Conse
quently,theinvestigatorsrepeatedlyaskedDasseywhatelse
happened to Halbach. After many, many attempts at this,
they became more specific and asked What else did he do
toher?Somethingwiththehead.R.1925at60.Buteven
thiscluewasnotenoughtoelicittheinformationtheywant
ed and instead triggered a litany of apparent guesses from
Dasseythatborderedontheabsurd.Dasseyguessedthather
hairhadbeencut,thatshehadbeenpunched,thatherthroat
hadbeencuteachtimebeingtoldbytheinvestigatorsthat
was not what they were looking for, until finally, Wiegert
becamefrustratedandasked,Allright,Imjustgonnacome
outandaskyou.Whoshotherinthehead?Id.at63.This
wasoneofthefewscenariosthatDasseyhadnotguessedat
thatpoint.Aswewillexplorebelow,thispatternofsugges
tivequestioningcontinuedthroughouttheinterrogation.

3DasseyandAveryweretriedseparately.
18 No.163397
The defense also presented the testimony of a forensic

psychologist, Dr. Robert Gordon, who testified that he re
viewedmanyyearsofDasseysschoolrecords,performeda
mentalstatusexaminationofDassey,andtestedDasseyus
ing various established psychological tests. R. 1922 at 23
166. His ultimate conclusion was that Dassey had several
characteristics likely to make him unusually suggestible in
interrogation situations. Dr. Gordon described Dasseys
thoughtprocessasslowwithamildtomoderatementalim
pairment. His test results demonstrated that Dassey per
formed on the extreme ends of the scales for social avoid
ance(beingsociallypassiveandwithdrawn),socialintrover
sion,andsocialalienation(alienatedfromsocietyandcutoff
from those with whom he interacts). Dassey scored in the
99th percentile for social avoidance, the 97th percentile for
socialintroversionand98.5thpercentileforsocialalienation.
On other tests, Dasseys results indicated that he was shy,
passive, subdued and dependentqualities that make one
more susceptible to suggestion. Dr. Gordon also testified
that Dassey had low average to borderline intelligence (IQ
testsrangedfromthelow70sto84,orinthe1013%percen
tile of intelligence). Gordon also administered the Gudjons
sonSuggestibilityScales,atestdevelopedbyaforensicpsy
chologist and a leading expert in confessions, which is de
signed to measure interrogative suggestibility. The results
indicatedthatDasseywasmoresuggestiblethan95%ofthe
population.Dr.Gordonalsoexplainedhow,basedonallof
his characteristics, Dassey would have been manipulable
and vulnerable to the particular interrogation techniques
used, including mild pressure and leading questions. He
noted that a suggestible person would be particularly
swayedbyfalseinformationofguilt,minimizationofthese
No.163397 19
riousness of the crime, blaming other participants for their

influence, or promises that family members will be spared
troubleifthesuspectconfesses.Id.at62.Inashortrebuttal,
theStatepresentedpsychologistDr.JamesArmentrout,who
expresseddiscomfortwiththesuggestibilitytestinganddid
not agree with the conclusion that Dassey was particularly
suggestible.Id.at177225.
Afterfiveandahalfhoursofdeliberation,thejuryfound
Dassey guilty on all counts. On August 2, 2007, the trial
court sentenced Dassey to life in prison for firstdegree in
tentional homicide, not eligible for release to extended su
pervisionuntilNovember1,2048.R.192at1516.Thecourt
further sentenced Dassey to six years of imprisonment for
mutilating a corpse, and fourteen years imprisonment for
seconddegreesexualassault,bothtobeservedconcurrently
with the murder sentence. Id.; Dassey v. Dittmann, 201 F.
Supp. 3d at 985. Dassey appealed his conviction without
success.
Dasseymovedforpostconvictionreliefinthetrialcourt
claimingthathispretrialandtrialcounselprovidedineffec
tiveassistanceandthathisMarch1confessionwasinvolun
tary.Uponhismotion,theWisconsinstatecourtheldafive
dayhearing,beginningJanuary15,2010,whichincludedthe
testimony of Dasseys mother, his school psychologist, one
of his trial attorneys, the prosecutor, a social psychologist,
Kachinsky,OKelly,andRichardLeo,anexpertonfalsecon
fessions.ThecircuitcourtofWisconsindeniedDasseypost
convictionreliefonDecember13,2010.
On appeal of the postconviction ruling, the Wisconsin
Court of Appeals stated that it was evaluating Dasseys
claimofinvoluntarinessonthetotalityofthecircumstances,
20 No.163397
balancing the defendants personal characteristics against

thepolicepressuresusedtoinducethestatements.Statev.
Dassey,No.2010AP3105,2013WL335923at*1,Wi.App.30,
5,*1,827N.W.2d928(table)(Wisc.Ct.App.,Jan.30,2013).4
That evaluation boiled down to just a few sentences in the
followingtwoparagraphs:
6 The trial court found that Dassey had a
low average to borderline IQ but was in
mostly regulartrack high school classes; was
interviewed while seated on an upholstered
couch, never was physically restrained and
was offered food, beverages and restroom
breaks; wasproperly Mirandized;anddidnot
appear to be agitated or intimidated at any
point in the questioning. The court also found
that the investigators used normal speaking
tones,withnohectoring,threatsorpromisesof
leniency; prodded him to be honest as a re
minderofhismoraldutytotellthetruth;and
toldhimtheywerein[his]cornerandwould
gotobatforhimtotrytoachievearapport
with Dassey and to convince him that being
truthfulwouldbeinhisbestinterest.Thecourt
concludedthatDasseysconfessionwasvolun
taryandadmissible.
7Thecourtsfindingsarenotclearlyerrone
ous.Basedonthosefindings,wealsoconclude

4 We will refer to the state appellate court decision as State v. Dassey
and the federal district court opinion on the writ of habeas corpus as
Dasseyv.Dittmann.
No.163397 21
thatDasseyhasnotshowncoercion.Aslongas
investigators statements merely encourage
honestyanddonotpromiseleniency,tellinga
defendant that cooperating would be to his or
her benefit is not coercive conduct. State v.
Berggren,2009WIApp82,31,320Wis.2d209,
769 N.W.2d 110. Nor is professing to know
facts they actually did not have. See State v.
Triggs, 2003 WI App 91, 15,17, 264 Wis.2d
861,663N.W.2d396(theuseofadeceptivetac
tic like exaggerating strength of evidence
againstsuspectdoesnotnecessarilymakecon
fession involuntary but instead is a factor to
considerintotalityofcircumstances).Thetruth
of the confession remained for the jury to de
termine.
Statev.Dassey,2013WL335923at*2.Althoughthestateap
pellate court listed Dasseys characteristics and some of the
circumstancesofhisinterrogation,aswewilldescribeinde
tail below, it did not do the one thing that the Supreme
Court requires which is to use special caution when as
sessing the voluntariness of juvenile confessions. J.D.B. v.
NorthCarolina,564U.S.261,269(2011);In re Gault, 387 U.S. 1,
45 (1967);Gallegosv.Colorado,370U.S.49,5354,(1962);Ha
ley v. Ohio, 332 U.S. 596, 599601 (1948). Paragraph 6 of the
appellate court decision lists Dasseys age and intellectual
limitations,butthen,inparagraph7,theonlyparagraphthat
analyzes whether Dasseys confession was voluntary or co
erced,itmerelyappliesthesameanalysisthatwouldapply
toanadultwithfullintellectualcapabilities.Specifically,the
stateappellatecourtconcludedthattacticssuchasencourag
ing honesty and the use of deceptive practices that are not
22 No.163397
considered coercive when used with adults must not have

beencoercivewhenusedontheintellectuallychallenged,16
yearold Dassey. A state courts evaluation need not be
lengthy or detailed, but it must at the very least meet the
bare minimum requirements of Supreme Court precedent.
The admonition to assess juvenile confession with special
cautionhasnomeaningifastateappellatecourtcanmerely
mentionajuvenilesageandthenevaluatethevoluntariness
of his confession in reference to the standard for adults of
ordinaryintelligence.Andifacourtcanmerelystatethege
nericSupremeCourtrulewithoutanyanalysis,thennofed
eralcourtcouldeverfindthatadecisioninvolvedanun
reasonable application of clearly established Federal law
pursuantto28U.S.C.2254(d)(1)
In juveniles, the evaluation of the totality of the circum
stances includes evaluation of the juveniles age, experi
ence, education, background, and intelligence, and into
whetherhehasthecapacitytounderstandthewarningsgiv
en him, the nature of his Fifth Amendment rights, and the
consequencesofwaivingthoserights.Farev.MichaelC.,442
U.S.707,725(1979);seealsoMurdockv.Dorethy,846F.3d203,
209(7thCir.2017);Hardawayv.Young,302F.3d757,762(7th
Cir. 2002). At no time did the state appellate court evaluate
anyofthesefactors,otherthantomerelylistsomeofthem.
It did not provide any analysis of how Dasseys personal
characteristics played a role in the interrogation. It did not
considerDasseyssuggestibility,didnotdiscussthefactthat
hewasunrepresentedandwithoutaparentsassistance,and
it did not consider whether Dasseys low IQ and learning
disabilitiesmayhaveaffectedhowheinterpretedstatements
made by interrogators. The court never evaluated Dasseys
capacity to understand the warnings given him, the nature
No.163397 23
of his Fifth Amendment rights, and the consequences of

waiving those rights. In short, the state appellate court did
notidentifythecorrecttestatallanddidnotapplyitcorrect
ly.
The state appellate court also declined to overrule the
lowercourtsdecisiondenyingDasseysclaimofineffective
assistanceofcounsel.AsforKachinskysconcededdeficien
cies,thecourtstatedthathewaslonggonebeforeDasseys
trial or sentencing. Dassey has not convinced us that Ka
chinskys actions amounted to an actual conflict and that
Kachinskys advocacy was adversely affected, such that it
wasdetrimentaltoDasseysinterests.Id.at*4.Andinref
erence to trial counsels performance, the appellate court
held that the trial court had not erred when it determined
thateach ofDasseysclaimsofineffectiveassistanceoftrial
counselwasbasedonhisattorneysreasonabletacticalstrat
egies.Id.at*6.
After the Wisconsin Supreme Court denied his petition
forreview,Dasseyfiledapetitionforawritofhabeascorpus
in the federal district court pursuant to 28 U.S.C. 2254,
claimingthathewasdeniedhisrightstoeffectiveassistance
ofcounselundertheSixthAmendmentoftheUnitedStates
Constitution,andthathisMarch1,2006confessionwasob
tained in violation of the Fifth Amendment. The district
court concluded that although Kachinskys misconduct
might support a claim for relief under Strickland, Dassey
made his claims regarding Kachinsky under Cuyler v. Sulli
van,446U.S.335(1980),andcaselawdemarcatingthelimits
oftheSullivantestprohibitthecourtfromgrantingDasseys
habeasreliefclaimonthatground.Dassey,201F.Supp.3dat
99192. It further concluded that the state court of appeals
24 No.163397
decisionastotheadmissibilityoftheMay13telephonecall
betweenDasseyandhismotherwasnotcontrary to clearly
established federal law or based on an unreasonable deter
mination of the facts. Id. at 992. However, the district court
concludedthattheconfessionDasseygavetothepoliceon
March1,2006wassoclearlyinvoluntaryinaconstitutional
sensethatthecourtofappealsdecisiontothecontrarywas
an unreasonable application of clearly established federal
law, and that the admission of the confession was not
harmlesserror.Id.at100506.Thedistrictcourtorderedthe
StatetoreleaseDasseyfromcustodyunless,within90days,
the State initiated proceedings to retry him. Id. at 1006. On
November17,2016,this courtstayedthedistrict courtsor
der releasing Dassey pending resolution of this appeal.
CourtofAppealsRecord,R.22.
II.
A. TheAEDPAandhabeasrelief.
The Antiterrorism and Effective Death Penalty Act of
1996governsourreviewofastatecourtconvictionandlim
its it considerably. It erects a formidable barrier to federal
habeas relief for prisoners whose claims have been adjudi
cated in state court, requiring them to show that the state
courtsruling...wassolackinginjustificationthattherewas
anerror...beyondanypossibilityforfairmindeddisagree
ment.Burtv.Titlow,134S.Ct.10,12(2013).[W]emaynot
grant relief where reasonable minds could differ over the
correctapplicationoflegalprinciples,andwemustevaluate
thatapplicationonthebasisofthelawthatwasclearlyes
tablished at the time of the state court adjudication.
Elmorev. Holbrook, 137 S. Ct. 3, 7 (2016). A federal court re
viewing ahabeas petitionmustexaminethe decisionofthe
No.163397 25
last state court to rule on the merits of the issue, which in

thiscaseisthestateappellatecourtrulingonpostconviction
relief.Makielv.Butler,782F.3d882,896(7thCir.2015).
Under the AEDPA, Dassey must demonstrate that the
state court proceedings (1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su
preme Court of the United States; or (2) resulted in a deci
sionthatwasbasedonanunreasonabledeterminationofthe
factsinlightoftheevidencepresentedintheStatecourtpro
ceeding.28U.S.C.2254(d)(1)and(2).Under2254(d)(1),
a statecourt decision is contrary to Supreme Court prece
dentifitisinconsistentwiththeSupremeCourtstreatment
ofamateriallyidenticalsetoffacts,orifthestatecourtap
plied a legal standard that is inconsistent with the rule set
forthin the relevantSupremeCourt precedent. Bell v. Cone,
535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S.
362,40506(2000)).Andastatecourtdecisionconstitutesan
unreasonableapplicationofSupremeCourtprecedentwith
inthemeaningofsection2254(d)(1)when,althoughitiden
tifiesthecorrectlegalrule,itappliesthatruletothefactsina
way that is objectively unreasonable. White v. Woodall, 134
S.Ct.1697,1705(2014).
Under 2254(d)(2), a state courts decision involves an
unreasonabledeterminationofthefactsifitrestsuponfact
finding that ignores the clear and convincing weight of the
evidence.Corcoranv.Neal,783F.3d676,683(7thCir.2015),
cert.denied,136S.Ct.1493(2016);seealsoMillerElv.Cockrell,
537 U.S. 322, 340 (2003) (a federal court can, guided by
AEDPA, conclude that a state courts decision was unrea
26 No.163397
sonable or that the factual premise was incorrect by clear

andconvincingevidence).
In granting the writ, the district court specifically noted
thatitdidnotreachitsconclusiontodeclarethestatecourt
rulingunreasonablelightly.Itwas,asweare,mindfulofthe
extremely restricted nature of habeas relief under the
AEDPA,andthatmindfulnesswasapparentfromthegreat
care the district court took in conscribing its ruling to the
limited role a federal court can play in reviewing the peti
tioners writ. Dassey v. Dittmann, 201 F. Supp. 3d at 98687,
1005. The district court exhaustively surveyed Supreme
Courtprecedentandcontinuouslyhelditsanalysisuptothe
light of habeas restraint. See Id. at 98687, 99091, 100305.
Deference, however, does not by definition preclude re
lief. MillerEl v. Dretke, 545 U.S. 231, 240 (2005). Section
2254(d)(1) allows for a grant of relief when a decision in
volved an unreasonable application of clearly established
Federal law. And if that section has any meaning, then it
mustmeanthatastatecourtevaluatingthevoluntarinessof
a juvenile confession must apply the factors that the Su
preme Court has identified as relevant to juvenile confes
sions.
Moreover,thedistrictcourtsgrantofthewritwasfirmly
linkedtoitsdeterminationunder2254(d)(2)thatthestate
courtsfindingthattherewerenopromisesofleniencywas
against the clear and convincing weight of the evidence.
Dasseyv.Dittmann,201F.Supp.3dat1003(internalcitations
omitted).Concludingthattheinvestigatorsnevermadeany
suchpromiseswasnominorerrorbutratherafactthatwas
central to the courtsvoluntariness finding. Id. Thedistrict
courtfoundthatthedeterminationwasnotmerelyincorrect,
No.163397 27
butunreasonable.Id.Secondly,thecourtconcludedthatthe
state court had unreasonably applied clearly established
federal law by ignoring the totality of the circumstances in
assessing the voluntariness of Dasseys confession. Id. at
1004.Thedistrictcourtnotedthatalthough the state appel
latecourtarticulatedthecorrectstandard(butonlyasitap
pliedtoadults),itignoredseveraldeterminativefactorsout
right and, most importantly, focused on the statements of
the investigators in isolation rather than assessing them in
viewofDasseyspersonalcharacteristicsortheircumulative
effectonthevoluntarinessofDasseysconfession.Id.at1004.
We,likethedistrictcourt,havekeptthestrictconstraints
of the AEDPA forefront in our minds as we proceed with
ourdenovoreviewofthedistrictcourtsdecisiontograntthe
habeas petition. Rodriguez v. Gossett, 842 F.3d 531, 537 (7th
Cir.2016).
Yet even given the constraints of the AEDPA, we must
concludethatthe statecourtsdeterminationwas anunrea
sonable application of Supreme Court precedent. Although
it identified the general rule that a court must consider the
totality of the circumstances, it failed to apply the special
cautionrequiredinjuvenileconfessionsandfailedtoeval
uate the totality factors for juveniles as required. Further
more,thestateappellatecourtappliedthegenerictotalityof
the circumstances test to the facts in a way that was objec
tively unreasonable. See 28 U.S.C. 2254(d)(1). The trial
courtsdeterminationofthefactswasalsounreasonableasit
ignoredtheclearandconvincingweightoftheevidence.See
28 U.S.C. 2254(d)(2); MillerEl v. Cockrell, 537 U.S. at 340.
Althoughthestateappellatecourtnotedthatitwasobligat
edtoconsiderthetotalityofthecircumstances,itdidnotdo
28 No.163397
so.Aswenoted,injuveniles,theevaluationofthetotalityof
thecircumstancesincludesevaluationofthejuvenilesage,
experience,education,background,andintelligence,andin
to whether he has the capacity to understand the warnings
given him, the nature of his Fifth Amendment rights, and
the consequences of waiving those rights. Fare, 442 U.S. at
725; see also Murdock,846 F.3d at 209; Hardaway, 302 F.3d at
762. The state appellate court listed Dasseys age, education
andIQ,butitnever,atanypoint,evaluatedthosefactorsto
determine whether they affected the voluntariness of Das
seysconfession.Likewisetheappellatecourtanalyzedsome
of the investigators interrogation techniques, but it never
evaluated or assessed how those techniques affected the
voluntariness of an intellectually challenged juveniles con
fession.Instead,thestateappellatecourtmerelystatedthat,
incasesinvolvingadultsofordinaryintelligence,encourag
ing honesty and using deceptive practices does not make a
confessioninvoluntary.
Moreover, the state appellate court ignored the many
signsthatDasseywastryingtopleasetheinterrogatorsand
avoidconflictandaclearcutpatternoffactfeedinglinked
topromisesthat,together,resultedinasituationwhereDas
seys will clearly was overborne. That pattern was as fol
lows:theinvestigatorsemphasized,adnauseum,thatinor
der to be okay to get things over with to be set free
Dasseyhadtobehonest.Yetthroughouttheinterrogation
it became clear that honesty meant those things that the
investigators wanted Dassey to say. Whenever Dassey re
ported a fact that did not fit with the investigators theory,
hewaschastisedandtoldthathewouldnotbeokayun
lesshetoldthetruth.AndthispatterncontinueduntilDas
seyfinallyvoicedwhattheinvestigatorswantedhimtosay,
No.163397 29
seemingly by guessing, or the investigators fed him the in

formation they wanted. Once he spoke correctly, the in
vestigators anchored the story by telling Dassey, now we
believe you to signal to him that this was the version that
would allow him to be okay, or set him free. By doing
thisbylinkingpromisestothewordsthattheinvestigators
wanted to hear, or allowing Dassey to avoid confrontation
by telling the investigators what they wanted to hearthe
confession became a story crafted by the investigators in
steadofbyDassey.And,aswewillsee,itwasaconfession
thatthereforecannotnotbeviewedasvoluntary.
Inthiscasetheanalysisof2254(d)(1)and2254(d)(2)over
lap.Thestatecourtunreasonablyappliedtherulerequiring
ittoconsiderthetotalityofthecircumstancestothefactsof
the case, and those were the very same facts that the state
courtdeterminedunreasonably.
B. Voluntarinessinconfessions.
1. Theconstitutionalrequirementofvoluntariness.
False confessions are anathema to the judicial process.
They are not beneficial to the prosecutor whose goal is to
find, punish, and incapacitate the actual criminal, they are
notbeneficialtogrievingrelativesandfriendswhowantto
bring justice to the perpetrator of a crime, and, of course,
theyareofnobenefittoawrongfullyaccuseddefendant.For
thesereasonsitisobviouswhycoercivetacticsthatleadtoa
false confession would be an affront to our judicial system.
ButtheuseofinvoluntaryconfessionsviolatestheConstitu
tionevenwhentheyareconfessionsoftruth(where,infact,
it is possible to know such a thing). The aim of the re
quirement of due process is not to exclude presumptively
30 No.163397
falseevidence,buttopreventfundamentalunfairnessinthe
useofevidence,whethertrueorfalse.Coloradov.Connelly,
479 U.S. 157,167(1986)(citing Lisenba v.California, 314 U.S.
219,236(1941)).TheSupremeCourthaslongheldthatcer
taininterrogationtechniques,eitherinisolationorasapplied
to the unique characteristics of a particular suspect, are so
offensive to a civilized system of justice that they must be
condemnedundertheDueProcessClauseoftheFourteenth
Amendment. Miller v. Fenton, 474 U.S. 104, 109 (1985) (cit
ingBrownv.Mississippi,297U.S.278(1936)).Coercedconfes
sions also violate the Fifth Amendments right against self
incrimination. Withrow v. Williams, 507 U.S. 680, 688 (1993).
As the Supreme Court noted, [A] criminal law system
which comes to depend on the confession will, in the long
run, be less reliable and more subject to abuses than a sys
tem relying on independent investigation. Berghuis v.
Thompkins, 560 U.S. 370, 40304 (2010) (internal citations
omitted).
[T]heultimateissueofvoluntarinessisalegalquestion
requiring independent federal determination. Arizona v.
Fulminante, 499 U.S. 279, 287 (1991);Millerv.Fenton,474U.S.
at110.AndundertheAEDPA,thiscourtmustaskwhether
the Wisconsin appellate courts decision concluding that
Dasseys confession was not involuntary was contrary to,
or involved an unreasonable application of, clearly estab
lished Federallaw, asdeterminedby the SupremeCourtof
the United States, (28 U.S.C. 2254(d)(1); Bobby v. Dixon,
565U.S.23,27,(2011)),orwhetheritwasbasedonanunrea
sonable determination of the facts in light of the evidence
presented in the state court proceeding. 28 U.S.C.
2254(d)(2).
No.163397 31
2. Therisksofcoerciononvoluntariness.
Historically, courts have looked at traditional modes of
coercion in evaluating whether the defendant voluntarily
confessedthatis,whetherthesuspectwastortured,beaten,
ordeprivedofsleep,foodorwater.TheSupremeCourtand
the community of experts on confessions have long recog
nized, however, that psychological coercion can be as pow
erfulatoolasphysicalcoercion.Fulminante,499U.S.at287.
Theprimarycauseofpoliceinducedfalsecon
fessions is the use of psychologically coercive
police interrogation methods. These include
methodsthatwereonceidentifiedwiththeold
third degree, such as deprivation (of food,
sleep, water, or access to bathroom facilities,
for example), incommunicado interrogation,
and extreme induced exhaustion and fatigue.
Since the 1940s, however, these techniques
havebecomerareindomesticpoliceinterroga
tions. Instead, when todays police interroga
tors employ psychologically coercive tech
niques, they usually consist of implicit or ex
plicit promises of leniency and implicit or ex
plicit threats of harsher treatment in combina
tion with other interrogation techniques such
as accusation, repetition, attacks on denials,
andfalseevidenceploys.
Jon B. Gould & Richard A. Leo, One Hundred Years Later:
WrongfulConvictionsAfterACenturyofResearch,100J.Crim.
L.&Criminology825,846(2010).
32 No.163397
Inclosingargumentsattrial,thestatearguedthatpeo
ple who are innocent dont confess. R. 1923 at 144. We
know,however,thatinnocentpeopledoinfactconfessand
dosowithshockingregularity.TheNationalRegistryofEx
onerations has collected data on 1,994 exonerations in the
United States since 1989 (as of February 26, 2017), and that
dataincludes227casesofinnocentpeoplewhofalselycon
fessed.5 This research indicates that false confessions (de
fined as cases in which indisputably innocent individuals
confessedtocrimestheydidnotcommit)occurinanywhere
from1524%ofwrongfulconvictionscases.SamuelGross&
Michael Shaffer, Exoneration in the United States, 19892012:
ReportbytheNationalRegistryofExonerations,60.6
3. The heightened risks of coercion for youth and
theintellectuallydisabled.
Nowhereistheriskofinvoluntaryandfalseconfessions
higher than with youth and the mentally or intellectually
disabled. It is for this reason that the Supreme Court has
cautioned courts to exercise special caution when as

5The National Registry of Exonerations, False Confessions,
http://www.law.umich.edu/special/exoneration/Documents/Exoneration
sin_2016.pdfatp.3;and
http://www.law.umich.edu/special/exoneration/Pages/falseconfessions
.aspx.
Theregistrydefinesexonerationbasedonspecificcriteriaavailableat
http://www.law.umich.edu/special/exoneration/Pages/glossary.aspx.The
summary definition is as follows: anexonerationoccurs when a person
whohasbeenconvictedofacrimeisofficiallyclearedbasedonnewevi
denceofinnocence.Id.
6 https://www.law.umich.edu/special/exoneration/Documents/ exonera
tions_us_1989_2012_full_report.pdf.
No.163397 33
sessing the voluntariness ofjuvenile confessions. J.D.B., 564

U.S.at269;In re Gault, 387 U.S. at 45;Gallegos,370U.S.at53
54,(1962);Haley,332U.S.at599601.
Indeed,thepressureofcustodialinterrogation
issoimmensethatitcaninduceafrightening
ly high percentage of people to confess to
crimes they never committed. That risk is all
the more troublingand recent studies sug
gest, all the more acutewhen the subject of
custodialinterrogationisajuvenile.
J.D.B., 564 U.S. at 269 (internal citations omitted). In one of
theseminaljuvenilecoercedconfessioncases,theCourtnot
edthatinterrogatorsmusttreatminorsmorecarefullywhen
questioning them as [t]hat which would leave a man cold
and unimpressed can overawe and overwhelm a lad in his
earlyteens.Haley,332U.S.at599.
As the amicus curiae and related articles demonstrate,
data supports the Supreme Courts admonition for special
care. A survey of false confession cases from 19892012
foundthat42%ofexonerateddefendantswhowereyounger
than18atthetimeofthecrimeconfessed,asdid75%ofex
onerees who were mentally ill or mentally retarded, com
pared to 8% of adults with no known mental disabilities.
Samuel Gross & Michael Shaffer, Exoneration in the United
States,19892012:ReportbytheNationalRegistryofExoner
ations, 58.7 Overall, one sixth of the exonerees were juve
niles,mentallydisabled,orboth,buttheyaccountedfor59%
offalseconfessions.Id.Inanotherstudyofthoseexonerated

7 https://www.law.umich.edu/special/exoneration/Documents/ exonera
tions_us_1989_2012_full_report.pdf.
34 No.163397
by DNA, juveniles accounted for one third of all false con

fessions. Brandon L. Garrett, The Substance of False Confes
sions,62Stan.L.Rev.1051,1094(2010).Indeed,ageandin
tellectualdisabilityarethetwomostcommonlycitedcharac
teristics of suspects who confess falsely. Samuel R. Gross,
KristenJacoby,DanielJ.Matheson,andNicholasMontgom
ery,Exonerations in the United States 1989 through 2003,
95J.Crim. L. & Criminology523, 545 (2005).8 Dassey suf
feredundertheweightofbothyouthandintellectualdeficit
and thus the state court was required, by a long history of
SupremeCourtprecedent,toassessthevoluntarinessofhis
confession with great care, yet the state appellate court did
notdoso.AlthoughitmentionedDasseysageandlowIQit
never made any assessment about how the interrogation
techniques could have affected a person with these charac
teristics.
4. Thetotalityofthecircumstancesrequirementfor
assessingvoluntariness.
Thereisnomagicformulaorevenanenumeratedlistfor
assessing the voluntariness of a confession. Such an assess
mentdepends,instead,uponthetotalityofthecircumstanc
es. Withrow, 507 U.S. at 693; Schneckloth v. Bustamonte, 412
U.S.218,226(1973).Anincriminatingstatementisvoluntary
if,inthetotalityofcircumstances,itistheproductofara
tional intellect and free will and not the result of physical
abuse,psychologicalintimidation,ordeceptiveinterrogation
tacticsthathaveovercomethedefendantsfreewill.Carrion
v. Butler, 835 F.3d 764, 775 (7th Cir. 2016). Police conduct

8http://scholarlycommons.law.northwestern.edu/jclc/vol95/iss2/5.

No.163397 35
maybeundulycoercivebecauseoftheinherentnatureofthe
conductitselforbecauseintheparticularcircumstancesof
thecase,theconfessionisunlikelytohavebeentheproduct
ofafreeandrationalwill.Millerv.Fenton,474U.S.at110.
Theadmissibilityofaconfessionturnsasmuchonwhether
the techniques for extracting the statements, as applied to
thissuspect,arecompatiblewithasystemthatpresumesin
nocenceandassuresthataconvictionwillnotbesecuredby
inquisitorial means as on whether the defendants will was
infactoverborne.Id.at116(emphasisinoriginal).Inshort,
acourtmustlookattheinterplaybetweenthecharacteristics
ofthedefendantandthenatureoftheinterrogation.Asim
plerecitationofeach,asthestateappellatecourtdidhere,is
notsufficient.
Factors that courts consider as part of the totality of the
circumstancesincludethelengthoftheinterrogation,itslo
cation, its continuity, the defendants maturity, education,
physical condition, mental health, and whether the police
advisedthedefendantofhisrighttoremainsilentandhave
counselpresent.Withrow,507U.S.at69394.Injuveniles,as
we have noted, the evaluation of the totality of the circum
stances includes evaluation of the juveniles age, experi
ence, education, background, and intelligence, and into
whetherhehasthecapacitytounderstandthewarningsgiv
en him, the nature of his Fifth Amendment rights, and the
consequencesofwaivingthoserights.Fare,442U.S.at725);
seealsoMurdock,846F.3dat209;Hardaway,302F.3dat762.
ThestateappellatecourtdidnotgiveDasseysconfession
the consideration required when evaluating the voluntari
nessofaconfessionofanintellectuallydisabledjuvenile.
36 No.163397
5. Cases as guideposts for a voluntariness assess

ment.
BysurveyingtheSupremeCourtcasesonthevoluntari
ness of juvenile confessions one can see how much the
uniquecharacteristicsofboththedefendantandtheinterro
gation play into the assessment of voluntariness. For this
reason, other cases can only act as broad guideposts. De
termination of whether a statement is involuntary requires
morethanamerecolormatchingofcases.Itrequirescareful
evaluation of all the circumstances of the interrogation.
Minceyv.Arizona,437U.S.385,401(1978)(internalcitations
omitted).
For example, in Haley, the Supreme Court held that the
methods used in obtaining the confession of a fifteenyear
old boy could not be squared with the due process com
manded by the Fourteenth Amendment. Haley, 332 U.S. at
599. Haley was arrested at midnight and interrogated for
fivestraighthoursbysixofficersinrelays,afterwhichtime
he confessed without being told his rights. Id. He was then
informedofhisrightsandsignedawrittenconfession.Only
afteranotherthreedaysofisolationdidthepoliceallowhim
access to his parents or a lawyer. Id. That confession, the
courtfound,couldnotbedeemedvoluntarilymade.
LikewiseforfourteenyearoldRobertGallegos,whowas
pickedupbythepoliceforassaultandrobberyandimmedi
ately admitted to a crime. Gallegos, 370 U.S. at 50. He was
lockedinjuvenilehallforfivedayswithoutaccesstoalaw
yerorhisparents,despitehismothersattemptstoseehim,
after which time he signed a confession. Id. The court con
cludedthatafourteenyearoldinthosecircumstanceswould
No.163397 37
havehadnowaytoknowwhattheconsequencesofhiscon
fessionwerewithoutadviceastohisrights.Id.at54.
In contrast, in Fare, asixteenyearold with rather exten
sive prior experience in the criminal system confessed to
murderafterbeinginformedofhisMirandarights.Fare,442
U.S. at 70911. The Supreme Court found that there is no
indication that he was of insufficient intelligence to under
stand the rights he was waiving, or what the consequences
ofthatwaiverwouldbe.Hewasnotworndownbyimprop
erinterrogationtacticsorlengthyquestioningorbytrickery
ordeceit.Id.at72627.Andtherefore,basedonthetotality
of the circumstances, the confession was not coerced and
thusadmissible.Id.at727.
Thecasesfromthiscircuitalsodemonstratehowwehave
appliedSupremeCourtprecedenttodeterminethereasona
bleness of a state courts determination of voluntariness.
DerrickHardawaywasonlyfourteenyearsoldwhenthepo
licerousedhimfromhissleepat8:00a.m.,andtookhimto
thepolicestationwithouthisparents.Hardaway,302F.3dat
760. He was not handcuffed and remained in an unlocked
interrogationroomuntilhewasinterviewedat10:30amand
then interrogated for six hours, given a break for a few
hours,andtheninterrogatedagainforanotherfourhours.A
youth advocate joined the interrogation but never once
spokeuptoaidHardaway.Aclearlytornpanelofthiscourt
could not find that the state appellate court erred when it
held that the confession was voluntary, even if we might
have come to a different conclusion had we been deciding
thematterourselvesinthefirstinstance.
There is no doubt that Hardaways youth, the
lackofafriendlyadult,andthedurationofhis
38 No.163397
interrogation are strong factors militating

against the voluntariness of his confession; in
deed,itseemstousthatonbalancetheconfes
sionofa14yearoldobtainedinthosecircum
stancesmaybeinherentlyinvoluntary.
Id. at 767. Nevertheless, we concluded, the state court had
consideredtherelevantfactorsandbecausetheweighingof
factorsunderthetotalityofcircumstancestestisasubjecton
which reasonable minds could differ, we could not hold
that the state court had been unreasonable. Id. The state
court,we explained, notedthattheofficers didnot psycho
logically trick the defendant or misrepresent evidence, but
rather Hardaway confessed after being confronted with
truthful contradictory evidence. The state court carefully
considered Hardaways nineteen previous encounters with
lawenforcement,thefactthatthepolicenotonlyreadHard
away his rights but that Hardaway was able to articulate
them back in his own words, and that Hardaway did not
haveanymentalincapacityorothermentalinfirmities.Id.at
76778.Thusthestatecourtseemedtohaveconsideredsuf
ficientlytheinteractionbetweenHardawayslimitationsand
theinterrogation.
Similarly, in Carter v. Thompson, 690 F.3d 837, 844 (7th
Cir. 2012), despite the fact that we were unsettled that a
16yearold was in the police station for fiftyfive hours
without a blanket, pillow, change of clothes, or access to a
shower, and without being told she could leave, we could
notfindthatthestatecourtshadbeenunreasonableinfind
ingthatherconfessionwasvoluntary.Id.Thestatecourthad
considered all of these factors, along with the fact that the
police read Carter her rights, her parents were with her for
No.163397 39
two of her three confessions, and her confession occurred

impromptu,asshewasonherwaytothebathroom.Id.
Finally, in Etherly v. Davis, 619 F.3d 654, 662 (7th Cir.
2010),asamendedondenialofrehgandrehgenbanc(Oct.15,
2010), we reversedadistrictcourt grantof awritofhabeas
corpus, disagreeing with the lower courts assessment that
the Illinois appellate court had not properly addressed and
considered all of the relevant factors in its analysis, noting
that reasonable jurists could disagree about the weight to
assigntoeachfactor.Id.TheIllinoisappellatecourt,wecon
cluded, evaluated and discussed the importance of the de
fendants age, whether a friendly adult was present, his in
tellectual disability, lack of criminal background, whether
police engaged in physical or psychological coercion, and
the defendants assertion that he understood his Miranda
rights.Id. at662.And despiteagreeingthat thestateappel
late court had been unreasonable in concluding that a fif
teenyearold, with no prior criminal experience, should be
expectedtoseektheadviceofayouthofficer,thiscourtcon
cluded that this lone error is not of such magnitude as to
result in an unreasonable application of Supreme Court
precedentunderAEDPA.Id.at66263.
In general, our cases demonstrate that we show great
deference to state court adjudications where it is clear that
the state court considered the totality of the circumstances
cumulatively, in light of the defendants age and intellect,
andwithoutomittingoroverlookingrelevantfactorsbearing
on the voluntariness of a juvenile confession. Murdock, 846
F.3d at 21011; Gilbert v. Merch., 488 F.3d 780, 794 (7th Cir.
2007); Ruvalcaba v. Chandler, 416 F.3d 555, 56162 (7th Cir.
2005).
40 No.163397
Unlike in the cases above, where the state court suffi

ciently considered a totality of the circumstances, as cases
likeFareandCarterrequire(Fare,442U.S.at725;Carter,690
F.3dat 843),weseenosimilarevidencethat the statecourt
did so in Dasseys case. For example, despite the Supreme
Courtsemphasisontheimportanceofaccesstoanadultal
ly in Gallegos, the Wisconsin state court in this case never
discussedthefactthatDasseywasalone,otherthantonote
that Dasseys mother, Barbara Janda, agreed to the second
interviewbutdeclinedtheoffertoaccompanyDassey.State
v.Dassey,2013WL335923at*1.9
Moreover,inthiscase,incomparisontoFareandHarda
way (Fare, 442 U.S. at 725; Hardaway, 302 F.3d at 767), the
state appellate court did not view interrogation techniques
asatotalityfactoroverlaidwithDasseysageandintellect.It
merely looked at the investigators comments in isolation
and opined, as it would with an adult of ordinary intelli
gence,that[a]slongasinvestigatorsstatementsmerelyen
courage honesty and do not promise leniency, telling a de
fendantthatcooperatingwouldbetohisorherbenefitisnot
coerciveconduct.Statev.Dassey,2013WL335923at*2.
AndunlikeinEtherlywherethestatecourtmadeasingle
errorunreasonablyconcludingthattheabsenceofayouth
officerwasinconsequential(Etherly,619F.3dat66263)the
state courts error here was not a solitary one, but rather a
failure of the very essence of Supreme Court precedent re

9Asdescribedinthefacts,Jandaclaimedshewascajoledoutofsittingin
theinterview.R.1930at155.Sheremainedinstead,inthewaitingroom
ofthepolicestation.
No.163397 41
quiring a court to consider the totality of the circumstances

andtoconsiderjuvenileconfessionswithspecialcaution.
Whereadeterminationofvoluntarinessissooutsidethe
realmofreasonableness,afederalcourtmaygrantthewrit,
as it did in A.M. v. Butler, 360 F.3d 787, 801 (7th Cir. 2004).
The court in A.M. recognized that [e]ven in the context of
federal habeas, deference does not imply abandonment or
abdication of judicial review. Deference does not by defini
tionprecluderelief.Id.(citingMillerElv.Cockrell,537U.S.
at340).Anditconcludedthattheconfessionofaninexperi
enced 10yearold who had no adult advocate was simply
not reliable where the detective continually challenged the
boysstatementsandaccusedhimoflyingalegitimatein
terrogation technique in adults, but one likely to lead a
youngboytoconfesstoanything.A.M.,360F.3dat80001.
And in fact, that is just what occurred in this case
detectives continually challenged Dasseys statements and
accused him of lying until, as we will describe, his confes
sionbecamealitanyofinconsistenciesshirtsthatchanged
color,firesthatbeganandendedatdifferenttimes,garbage
bags that sat in burning fires without melting, trucks that
were seen in garages and then not seen in garages, bloody
crime scenes without a trace of blood remaining, metal
handcuffsthatleftnomarksonthebedposts,etc.Butagain
weemphasizethatbecauseoftherequirementsofthetotali
tyofthecircumstances,thesecasesprovideonlythebroad
est of guidelines on determining voluntariness, see Mincey,
437U.S.at401,andourfullanalysisofthevoluntarinessof
theconfession,towardtheendofthisopinion,will demon
stratewhynoreasonablecourtcouldhavecometothecon
clusion that Dasseys confession was voluntary. As will be
comeclearthroughtheentiretyofthisopinion,wecanpoint
42 No.163397
tonosolitarystatement,factor,orinterrogationquestionthat
rendered Dasseys confession involuntary (although there
werecertainlysomeindividualleadingquestionsthatcame
close),butratheritwasdeathbyathousandcuts.Becauseof
thecumulativeeffectofthesecoercivetechniquesthelead
ing,thefactfeeding,thefalsepromises,themanipulationof
Dasseysdesiretoplease,thephysical,fatherlyassurancesas
Wiegert touched Dasseys knee etc.no reasonable court
couldhaveanyconfidencethatthiswasavoluntaryconfes
sion.
6. Nosinglefactorisdeterminative.
a. Courts must pay close attention to voluntariness
whenthedefendanthasnoadultallypresent.
Aswehavenowconcluded,thetotalitytestprohibitsany
one factor from being determinative of voluntariness. Mur
dock,846F.3dat209.Somecourts,includingthisone,never
theless have found particularly distressing the idea of mi
nors waiving rights and confessing without an adult ally
present.Thosecourtsthereforehavetoyedwiththeideaofa
per se rule that children under a certain age cannot waive
rights or make a voluntary confession without a parent,
guardian,orlegalrepresentativepresent.Seee.g.,Hardaway,
302 F.3d at 764. Our conclusion in Hardaway, however, was
thatthereisnosupportinclearlyestablishedfederallawfor
suchaperserulewhereSupremeCourtprecedenthasbeen
clear that courts instead must base their assessment on the
totality of the circumstances. Id. (citing Fare, 422 U.S. at
726). Youth, we concluded, remains a critical factor for
ourconsideration,andtheyoungerthechildthemorecare
fully we will scrutinize police questioning tactics to deter
mineifexcessivecoercionorintimidationorsimpleimmatu
No.163397 43
ritythatwouldnotaffectanadulthastaintedthejuveniles
confession. Hardaway, 302 F.3d at 765. See also, J.D.B. v.
NorthCarolina,564U.S.261, 269, 280 (2011);InreGault,387
U.S. at 45.
The state appellate court applied no extra care to Das
seys confession based on his lack of an adult advocate.
Youthwasnotacriticalfactorinitsanalysis;indeeditwas
notafactoratall.Itdidnotconsidertheinterrogationtech
niques in light of Dasseys lack of an adult advocate nor
acknowledge how Dasseys clear confusion during parts of
the interview could have been aided by an adult ally who
might have noticed Dasseys confusion and the manipula
tion. It did not mention how, immediately after Dasseys
mothercametohisside,hesuddenlyrealizedthattheinves
tigatorsgottomyhead,andheworriedthathewouldbe
caught in a liehaving confessed to a crime he did not
commit. He asks his mother, Whatd happen if he says
somethinghisstorysdifferent.Whhesayshe,headmitsto
doing it? Like if his storys different, like I never did
nothinorsomethin.R.1925at148.
b. Courts must pay close attention to voluntariness
when manipulative interrogation techniques are
used, particularly on the young and intellectually
challenged.
Psychologically manipulative interrogation techniques,
likewise,arenotpersecoercive,butamongthecircumstanc
esthatacourtmustevaluateintotaltodeterminewhethera
particular defendants free will has been overcome. To be
clear,manymanipulativeinterrogationtechniques,inandof
themselves,arenotunconstitutional.Trickery,deceit,even
impersonation do not render a confession inadmissible.
44 No.163397
UnitedStatesv.Villalpando,588F.3d1124,1128(7thCir.2009)
(citingU.S.v.Kontny,238F.3d815,817(7thCir.2001)).The
lawpermitsthepolicetopressureandcajole,concealmate
rial facts, and actively misleadall up to limits. United
States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990). That
limitisexceeded,however,whenthegovernmentgivesthe
suspect information that destroys his ability to make a ra
tionalchoiceforexamplebypromisinghimthatifhecon
fesseshewillbesetfree.Alemanv.Vill.ofHanoverPark,662
F.3d897,906(7thCir.2011).And,aswedescribefurtherbe
low, those limits depend on the characteristics of the de
fendant.Falsepromisesthatasuspectwillbetreatedlenient
lybythecourts,wehavenoted,havetheuniquepotential
tomakeadecisiontospeakirrationalandtheresultingcon
fession unreliable because of the way it realigns a sus
pectsincentivesduringinterrogation.Villalpando,588F.3d
at 1128; United States v. Montgomery, 555 F.3d 623, 629 (7th
Cir. 2009)(afalsepromiseofleniency maybesufficientto
overcome a persons ability to make a rational decision
about the courses open to him.). See also United States v.
Nichols, 847 F.3d 851, 857 (7th Cir. 2017) (a government
agentsfalsepromiseofleniencymayrenderastatementin
voluntary.);Montgomery,555F.3dat629([g]iventheright
circumstances,afalsepromiseofleniencymaybesufficient
to overcome a persons ability to make a rational decision
aboutthecoursesopentohim.);Hadleyv.Williams,368F.3d
747, 749(7thCir. 2004)(policemaynot extractaconfession
inexchangeforafalsepromisetosetthedefendantfree).
No.163397 45
Weattachnonefariouspurposestotheinvestigatorswho
were using established interrogation techniques.10 And, in
any event, the investigators purpose or subjective view of
the coercive nature of the interrogation is not relevant. It is
how those interrogation techniques interact with the de
fendantscharacteristicsthatdeterminesthevoluntarinessof
aconfession.Aseasonedcriminalwhohasvolleyedwithin
terrogators many times beforemay not be swayed at all by
an explicit but false claim of leniency, but a young, unso
phisticatedjuvenilemightbelieve,withjusttheslightesthint
of an offer of leniency, that if he confesses to murderGod
andthepolicewouldforgivehimandhecouldgohomein
timeforhisbrothersbirthdayparty.A.M.,360F.3dat794.
TheConstitutionrequiresthataconfessionbevoluntarily
given.Thedissentcriticizesthepanelopinionforrelyingon
the subjective perception of a defendant in determining the
voluntariness ofhis confession,butthisis,infact,what the
totality of the circumstances test requires. A thirtyyearold
withalawdegreewouldnotbelieveapoliceofficersassur
ance that if he confesses to murder he will go punishment
free, but yet the tenyearold, A.M. did just that. Id. A con
sideration of the totality of the circumstances requires the

10Apparentlythesetechniquesarenotstillderigueur,asDasseysinter
rogationisnowusedasawhatnottodoinatleastonecertifiedinter
rogation course. See Brief of Amici Curiae, Juvenile Law Center, Wick
landerZulawski & Associates, Inc. and Professor Brandon Garrett, In
Support of Appellee and Affirmance, at p. 56 (citing https://www.w
z.com/2016/08/19/netflixsmakingamurdererinvoluntaryconfession
aninterrogatorsperspective/#comment1266). Of course our considera
tion of the constitutionality of the interrogation does not hinge on
whether companies teaching these courses believe the technique to be
effectiveorproper.
46 No.163397
courttoconsiderwhetherthetechniquesforextractingthe
statements,asappliedtothissuspect,arecompatiblewitha
system that presumes innocence and assures that a convic
tionwillnotbesecuredbyinquisitorialmeansasonwhether
thedefendantswillwasinfactoverborne.Millerv.Fenton,
474U.S.at116(emphasisadded).Weneednotacceptade
fendants afterthefact proclamation of a lack of voluntari
ness,butthetotalityofthecircumstancesframeworkallows
acourttoconsidertheevidenceaboutthedefendantsability
to comprehend and contemporaneous evidence of what he
actually did or did not understand. If the Constitution re
quiresthataconfessionbevoluntary,thenitcanonlybesoif
theparticulardefendantsittingintheinterrogationwasnot,
infact,coerced.
Inotherwords,thetotalityofthecircumstancestestdic
tates that coercive interrogation on the one hand, and sus
pect suggestibility, on the other, are on inverse sliding
scalesthemorevulnerableorsuggestibleasuspect,theless
coercionit willtake toovercomeher freewill.Thisisnota
statementofanewtest, butratherthelogical conclusionof
the totality of the circumstances review itself. Therefore, to
determinewhetherapromiseiscoerciveasalegalmatter,a
court cannot consider the promise alone, but rather the
promise in conjunction with the characteristics of the sus
pect. Again, the Supreme Courts seminal case advises,
[t]hatwhichwouldleaveamancoldandunimpressedcan
overaweandoverwhelmaladinhisearlyteens.Haley,332
U.S.at599.AndtheSupremeCourtprecedentrequireslow
er courts to consider interrogation techniques as applied to
theparticulardefendantathand.Millerv.Fenton,474U.S.at
116.
No.163397 47
The dissent accuses us of redefining what counts as a

false promise of leniency, noting statements by the police
that passed muster with courts in other cases. The point of
the totality test, however, is not to evaluate any promise of
leniencyinisolation,butratherinlightofthespecificcharac
teristicsofthedefendant,thatis,asappliedtothissuspect.
Id.(emphasisadded).Thecareercriminalwillnotinterpreta
promise in the samemanner as an inexperienced and intel
lectually disabled teen. The state court, however, did not
viewthecoercivenessoftheinterrogationtechniquesinlight
of Dasseys personal characteristics as the totality test re
quires.
The dissent states that the majority decision will make
policeinvestigationsconsiderablymoredifficult,andasks
whatshouldpolicedothenexttimeaninvestigationleads
toateenagerwithsomeintellectualchallenge?(postat107).
To the extent that the result makes police investigations
moredifficult,itisnotbecauseofanychangewehavemade
tothelaw,butratherbecausetheSupremeCourtrequiresa
totality of the circumstances framework that gives special
cautiontoconfessionsofjuveniles,theintellectuallydisabled
andotherdefendantswithvulnerablecharacteristics.
The benefits of the Supreme Courts requirements ex
pand beyond protecting the constitutional rights of defend
ants.Itisofnohelptotheadvancementofjusticeandtore
moving dangerous killers from the streets, if police coerce
confessionsfrominnocentsuspects.TeresaHalbachandher
familyarenotservedifthewrongdefendantspendshislife
in prison. Teresas family deserves to know that the police
havefoundandincapacitatedtherightperpetratorthatno
otherfamilywillbeforcedtogrieveastheyhavebecausea
48 No.163397
brutalkillerremainsatlarge.Theanswertothedissentsin
quiryaboutwhatpoliceofficersaretodoinsuchasituation
as Dasseys, therefore, comes from a long line of require
ments that courts have established for protecting the rights
of defendants during police interrogations. Specifically, in
such a case, the police should, as the Supreme Court re
quires, ensure that such a suspect has the capacity to un
derstand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those
rights.Fare,442U.S.at725;seealsoMurdock,846F.3dat209;
Hardaway,302F.3dat762.Andacourtreviewingachallenge
toaconfessionmustassessthetotalityofthecircumstances
toassureitselfthatthedefendantvoluntarilyconfessed.This
theappellatecourtdidnotdo.
7. Thestatecourtinthiscasedidnotapplyatotali
tyofthecircumstancestest.
The state court of appeals in this case affirmed the trial
courts determination that Dasseys confession was not in
voluntary.Dasseyv.Dittmann,2013WL335923at*2.Asthe
laststatecourttospeaktotheissue,itisthatcourtsdecision
that we review. Makiel, 782 F.3d at 896. As set forth in the
fact section above, after noting the requirement to consider
the voluntariness of the confession using the totality of the
circumstances test, the state appellate court addressed the
voluntarinessoftheconfessionintwoshortparagraphs.The
firstparagraph(6)consistedofalistofDasseyscharacter
istics and some general characteristics of the interrogation
including: Dasseys limited intelligence, the comfortable in
terrogation room, the Miranda warnings, his affect during
the interview, the investigators normal speaking tones, the
lackofhectoring,threatsorpromisesofleniency,thepleas
No.163397 49
forhonesty,andtheinvestigatorsattemptstobuildrapport.
State v. Dassey, 2013 WL 335923 at *2. In the second para
graph ( 7), the court of appeals concluded that the trial
courtsfindingofnocoercionwasnotclearlyerroneous.As
long as investigators statements merely encourage honesty
anddonotpromiseleniency,thecourtreasoned,tellinga
defendantthatcooperatingwouldbetohisorherbenefitis
not coercive conduct. Nor is professing to know facts they
actuallydidnothave.Id.
Althoughthestatementsinthissecondparagraphareac
curate as applied to an adult of ordinary intelligence, they
donotacknowledgethecourtsobligation toconsiderjuve
nileconfessionswithcautionandtheydonothingtoevalu
atethetotalityofthecircumstances.Anevaluationrequires
thatthecourtviewtheinterrogationtacticsinlightofthede
fendants situation and characteristics. A court has not ap
pliedthetotalityofthecircumstancestestsimplybystating
itsnameandbynotingthat,intheordinarycourseofdeal
ings, a police officer may use deceptive techniques. Apply
ingaruleoflawdoesnotrequiremuch,butitrequiresmore
thanjustparrotingthewordsoftherule.
Inadditiontofailingtoconsiderthefactorsinlightofthe
totality ofthecircumstances,thestateappellatecourtfailed
to consider some key factors at all, even individually. The
dissentcorrectlynotesthatastatecourtneednotgiveallof
itsreasoningforitsoutcome.Andthetotalityofthecircum
stancesdoesindeedgivestatecourtsasomewhatwideberth
fortheirconsiderations.Itistruethat[t]hemoregeneralthe
rule, the more leeway courts have in reaching outcomes in
casebycase determinations. Yarborough v. Alvarado, 541
U.S. 652, 664 (2004). But the generality of the rule does not
50 No.163397
mean that a state court may forsake it completely, and it

doesnoteradicatethegeneralnotionthatThestandard[for
habeas corpus relief is demanding but not insatiable ... def
erence does not by definition preclude relief. MillerEl v.
Dretke,545U.S.at240.
If the totality of the circumstances standard means any
thing, it means that a state court must, at a bare minimum,
dowhattherulerequiresandconsiderthetotalityofthecir
cumstances.Astatecourtneednotsaymuch,butthelessit
says,thelessafederalcourtcanascertainthatthestateactu
allyappliedatotalityofthecircumstancesevaluation.
Andattheveryleastacourtassessingthevoluntariness
of a juveniles confession must evaluate whether deceptive
interrogation techniques overcame the free will of this par
ticular defendant. Missing entirely from the state appellate
courts analysis is any recognition that deception that is
permissible when interrogating the average adult person of
ordinary intelligence, might not be permissible with some
oneofDasseysageandintellect.Forexample,thestateap
pellate court never considered whether the statement the
truthwillsetyoufreewouldbeconsideredidiomaticallyor
literallybysomeoneofDasseysageandlimitations.Indeed
iftakenliterally,thatstatementistheexactkindofpromise
of leniency that courts generally find coercive. Hadley, 368
F.3d at 749 (police cannot extract a confession in exchange
for a false promise to set the defendant free); Rutledge, 900
F.2dat1129(same).
Nor was there any analysis of the key fact that Dassey
had no adult ally with him during the interrogation. Alt
houghnotdispositive,itisoneofthemostcriticalfactorsin
evaluating voluntariness of juvenile confessions. Gallegos,
No.163397 51
370 U.S. at 55; Hardaway,302F.3dat765(notingthatabsence

ofafriendlyadultisnotdispositiveofinvoluntariness,buta
key factor that can tip the balance against admission). A
friendly adult can ensure that a minor defendant can make
criticaldecisions,forexample,likethedecisiontowaiveMi
randarights.SeeHardaway,302F.3dat764.Shecouldensure
thatpolicedonottakeadvantageofaminorsyouthormen
tal shortcomings. U.S. v. Bruce, 550 F.3d 668, 673 (2008). A
friendlyadultcanleveltheplayingfield,helpthechildun
derstandwhattheconsequencesofhisconfessionmightbe,
and help him understand his constitutional rights. Gilbert,
488F.3dat79192.
HadDasseysmotherbeenpresentintheroomwithhim,
she might have noticed if Dassey were guessing as to an
swers, alerted him to the consequences of incriminating
himself, reminded her son that the investigators were not
acting as his friends or advocates, and helped him distin
guishbetweentheactualtruthandtheinformationthatthe
investigatorswerefeedinghim.
Obviously,wecannotknowifshewouldhavedoneany
ofthesethings,butwehaveonehintthatshemighthave:At
theendoftheconfession,aftershewasallowedtoseeDas
seyandafterhesaidtheygottomyhead,sheimmediate
ly asked the investigators, Were you pressuring him?
R.1925 at 148. As we described above, Dassey became an
choredandimmediatelyrealized,Theygottomyhead,as
soon as his mother entered the room. R. 1925 at 148. But
whether she would have helped Dassey or not, it confirms
that Dassey had no protection against manipulation by the
officers.TheabsenceofDasseysmotheroranotherfriendly
adultshouldhavebeenacriticalpieceofthetotalityconsid
52 No.163397
erationbythestatecourtanditwasnotevenmentionedin
the state courts analysis of the voluntariness of Dasseys
confession.
Finally, the state appellate court did not consider Das
seyssuggestibilitywhileassessingthecoercivenatureofthe
claim, despitethefactthatone entiredayoftrialtestimony
consistedofexpertsassessingDasseysmentalcapacityand,
in particular, his suggestibility. Given the instances we dis
cuss below of investigators steering him to particular an
swers,thiswasacriticaloversight.
ThedirectivefromtheSupremeCourttoconsidertheto
tality of the circumstances ensures that this particular de
fendantvoluntarilyconfessed.Itisnousetonotethattelling
a defendant that cooperating would be to his benefit is not
per se coercive, if the words used to convey that notion
soundlikeapromiseofleniencytothisparticulardefendant.
Likewise, falsely claiming to have knowledge is not per se
coercive, unless it is used in a manner that overcomes the
freewillofthisparticulardefendant.Thestatecourtdidnot,
inanyrespectormanner,considertheinteractionofthein
terrogationtechniqueswithDasseysyouth,intellectuallimi
tations,suggestibility,lackofexperiencewiththepolice,lack
ofafriendlyadult,andnaivet.
Insum,therewasnototalityinthistotalityofthecir
cumstances test at all. There was no assessment of the cu
mulative nature of the interrogators promises, no assess
mentofthefactfeedinginlightofDasseyslimitedintellec
tualabilities,noassessmentoftheabsenceofafriendlyadult
whocouldprotectDasseyandadvocateforhisinterests,no
assessmentofDasseysconfusioninresponsetomanyques
tions,orhisapparentdesiretopleasetheinterrogatorswith
No.163397 53
hisanswers,noassessmentofhowhisanswerschangedand
why, and no assessment of his repeated statements that he
expectedthat,inreturnforhisstatements,hewouldbeset
free to return to school at the conclusion of the interroga
tion.Itisnotthatthestatecourtdidnotdoenough;wecan
havenoconfidencethatitconsideredthetotality ofthecir
cumstancesatall.
Although different courts and judges might disagree as
tohowmuchweighttoassigneachfactoronfactssimilarto
those in [any Petitioners] case (Etherly, 619 F.3d at 662), a
reasonable jurist must, in fact, consider the relevant facts
surroundingaconfession,andconsidertheircombinedand
cumulative effect. Id. A consideration of the totality of the
circumstances requires the court to consider whether the
techniques for extracting the statements, as applied to this
suspect, are compatible with a system that presumes inno
cence and assures that a conviction will not be secured by
inquisitorial means as on whether the defendants will was
infactoverborne.Millerv.Fenton,474U.S.at116(emphasis
added).
C. The voluntariness of Dasseys confession analyzed
inlightofthetotalityofthecircumstances.
In addition to failing to apply a totality of the circum
stances analysis to the facts of this case, as required by the
Supreme Court, the state court acted unreasonably when it
determined thatgiven the totality of the circumstances
Dasseys confession was voluntary. The state appellate
courts finding that there were no promises of leniency or
other factors that overcame Dasseys free will was against
theclearweightoftheevidence.28U.S.C.2254(d)(2);Ward
v.Sternes,334F.3d696,704(7thCir.2003).
54 No.163397
Thus2254(d)(2)requiresafederalcourtonhabeasre
view to look at those facts to determine whether the state
courtproceedingsresultedinadecisionthatwasbasedon
anunreasonabledeterminationofthefactsinlightoftheev
idence presented in the State court proceeding. Id. Moreo
ver, [w]here a state courts decision is unaccompanied by
an explanation, the habeas petitioners burden still must be
met by showing there was no reasonable basis for the state
court to deny relief. Harrington v. Richter, 562 U.S. 86, 98
(2011). And a federal court reviewing a habeas petition un
der2254(d),mustdeterminewhatargumentsortheories
supported or, as here, could have supported, the state
courtsdecision;and thenitmustaskwhetheritispossible
fairminded jurists could disagree that those arguments or
theoriesareinconsistentwiththeholdinginapriordecision
ofthisCourt.Id.at102.Suchadeterminationdoesnotturn
habeasreviewtodenovoreview,asthedissentsuggests.Itis,
tothecontrary,preciselywhattheSupremeCourtrequires.
Id. Because the stateappellatecourts opinionfailed to give
anyexplanationotherthanalistingofDasseyscharacteris
ticsandthecircumstancesoftheinterrogation,inreviewing
the reasonableness of the determination of the facts in light
of the evidence presented, we look to see what theories
couldhavesupportedthestatecourtsconclusion.
1. ThemessagesenttoDassey:Thetruthiswhat
wewantyoutosay,andthatiswhatwillsetyou
free.
Dasseysinterviewcouldbeviewedinapsychologyclass
as a perfect example of operant conditioning. As we will
demonstratethroughmyriadexamplesbelow,thethemeset
forthforDasseywastwofold,thathonestyistheonlything
No.163397 55
thatwillsetyoufree,R.1925at17,andthathonestywould
appeasetheinvestigators,avoidconflict,andallowthemto
be Dasseys friend, to go to bat for [him] to be in his
corner.Id.at16,25.Inotherwords,thekeytowalkingouta
free person, avoiding the conflict that his socially avoidant
personalityfeared,andgettingbackintimeforschoollunch
was honesty. But Dassey quickly learned that honesty
meanttellingtheinvestigatorswhatitwasthattheywanted
to hear. When they did not like his answer, they told him
things like Come on Brendan. Be honest. I told you thats
the only thing thats gonna help ya here; and [w]e dont
get honesty here,Imyourfriendrightnow, butI gotta be
lieveinyouandifIdontbelieveinyou,Icantgotobatfor
you.Id.at23.Everytimetheinvestigatorssaidtellusthe
truth or we know what the truth is, Dassey altered his
story just a bit. As Dassey got closer and closer to the an
swerstheinvestigatorswerelookingfor,hisstatementswere
rewardedwithaffirmationslikethatmakessense.Nowwe
believeyou,andindoingso,theycementedthatversionof
thefacts.See,e.g.,Id.at73.ButwhenDasseydeviatedfrom
the expected narrative, the investigators either offered no
reward,ignoredthecomments,steeredhimaway,orlethim
knowthattheythoughthewasnottellingthetruth.Inshort,
as the examples clearly demonstrate, be honest, tell the
truth,andsimilarpleasbecamecodeforguessagain,that
isnotwhatwewantedyoutotellus.Andnowwebelieve
you and that makes sense became code for thats what
wewanttohear.Stoprightthere.Dasseysreactiontothese
cues is not unique. Experts on confessions have noted that
thoughcourtsarereluctanttofindthatpoliceofficershave
overwhelmed a childs will by repeatedly admonishing the
child to tell the truth, many children will eventually hear
56 No.163397
tell thetruthas,tell mewhatI want to hear. KennethJ.

King, Waiving Childhood Goodbye: How Juvenile Courts Fail to
Protect Children from Unknowing, Unintelligent, and Involun
tary Waivers of Miranda Rights, 2006 Wis. L. Rev. 431, 472
(2006). Scholarly research suchas this helps inform our un
derstanding that the totality of the circumstances analysis
means something different when applied to juveniles. It
supportsthereasoningbehindtheSupremeCourtsadmoni
tion to view juvenile confessions with special caution. See
J.D.B.,564U.S.at269.
Theinvestigatorshonestyistheonlythingthatwillset
youfreethemeestablishedapatternwherebyDassey,seek
ingthepromisedresultfreedom,oravoidanceofconflict
searched for the narrative that the investigators would ac
cept as the truth. Dassey found the truth either by
stumblinguponitorbyusingtheinformationtheinvestiga
torshadfedhim.Thepromiseoffreedombecamelinkedto
theideaoftruthwhichbecamedefinedasthatwhichthein
vestigators wanted to hear. Once this promptandresponse
pattern is noticed, it is impossible to read or view Dasseys
interrogationandhaveanyconfidencethatDasseysconfes
sionwastheproductofhisownfreewillratherthanhiswill
being overborne. Any reader who doubts that this pattern
castsinsurmountabledoubtonthevoluntarinessofDasseys
confession need only watch or read the interrogation with
thiskeyinhand.
Thefollowingexchangeisaprimeexampleoftheinves
tigatorstellingDasseythatheneedstochangehisstoryand
howheshoulddoit,followedbythatexactchange.Priorto
the interaction below, Dassey confirmed approximately
eight times, often insistently, that when he got home from
No.163397 57
schoolonOctober31,hesawHalbachandAverytalkingon
Averysporch.R.1925at1920,2728,90.Infact,theoffic
ersgrilledhimaskingAndyouresureyousawthat?Id.at
20;didyoureallyseethosetwotalkingontheporchId.at
27; Youre 100% on that? Id. at 28. And each time he an
swered affirmatively. Yet, once they repeatedly cued him
that they did not like hisanswerand that he musttellthe
truthin other words, tell them what they wanted to
hearhealteredhismessageexactlyashewasinstructed:
Fassbender: OK, and you said you walked
downth[sic]theroadtoyourhouse,(Brendan
nodsyes)andyousaidthatyousawSteven
ontheporch.
Brendan: (nodsyes)uhhuh
Fassbender: Mark and I are havin a problem
with that. Now if, Im not, Im not sayin that
Im gonna put words in your mouth so were
havinaproblemwiththat.thetimeperiods
arentaddingup.Theyrenotequalingout.We
know when Teresa got there. (Brendan nods
yes)Um,and,andIknowIguaranteeyaTe
resas not standing on that porch when you
come home from school. I ju [sic] I dont see
that. Somethin is not adding up here and
youneedtotellusthetruth.Didthisallstart
right when you came home from school? You
need to tell me, you need to be honest with
me.Icanttellya,IIcanttellyathesethings.I
can tell ya we dont believe you because
theressomethingsthatarewrongbutyouve
gotta tell me the truth. This is you know get
58 No.163397
ting serious here now, OK? (Brendan nods

yes) Tell me what happened when you got
home.
Brendan: I got off the bus. I walked down
the road and when I got to that thing, ah, the
otherhouseIjustsittintherefornothin[sic].I
couldseeherjeepinthegaragejustsittinthere
and I didnt see Steven and her on the the
porch.
Wiegert: You,youdidoryoudidnt?
Brendan: Ididnt.
Fassbender: Didnot,OK.
R.1925at9091(emphasisadded).11

11Another prime example of the investigators telling Dassey exactly
whathemustsaycomesfromtheMay13interview,whichwasnotused
attrial,butispartoftherecord.
Wiegert: Now where is her truck when you go into
thegarage.
Brendan: Ididntseeit.
Wiegert: youcantsayyoudidntseethetruckor
know where the truck was because [t]hats just the
wayitis.
Following this exchange, the investigators launched into a long ha
rangue threatening to leave the interview if Brendan was not honest
withus,andbeseechingDasseytodotherightthingforTeresa.
Wiegert: Ok.Thentellusthetruth.
Fassbender: Lets start with the truck. Thats a good
place to start. Theres other places were going, but the
No.163397 59
The state presents these changes as a normal part of a

confession. That is, that a defendant tells one version of
events, backtracks as he is presented with inconsistencies
anderrorsinhisstory,andrevealsmoreandmoreasthein
terrogatorscoaxthetruthoutofhim.See,e.g.,ReplyBriefof
RespondentAppellant at1(Aswithmanydifficultadmis
sions, the truth did not come out all at once, but littleby
little in fits of honesty.) But again, a careful review of the
confession does not reveal this to be a story gaining clarity
over time. Unlike the ordinary course of a confession in
whichthenarrativeincreasesinclarityasthesuspectreveals
more information, this interrogation was just the opposite.
Every time the interrogators protested the veracity of Das
seys account orfedDasseyinformation,hisstorychanged.
If one sits in front of the taped confession with a legal pad
andtriestosketchoutthedetailsandtimelineofthecrime,
theresultingmapisajumbleofscratchoutsandarrowsthat
growsmoreconvolutedthemoreDasseyspeaks.Infact,de
spitewhattheStatedescribesasadetailedconfession,ithas
neverbeenabletomapoutacoherenttimelineofthecrime,
ortofigureoutinwhatorderorwheremanyoftheevents
occurred. See Brief of RespondentAppellant at 9, n.3 (stat
ing,inafootnotetothefacts,thenarrativerecountsdetails
from Dasseys confession in the most likely timeline, con
sistent with other evidence at trial. It is possible that some

truckisagoodplacetostart.Tellusthetruthaboutthe
truck.
Brendan: Itwasbackedintothegarage.
R.1934at2122.
60 No.163397
parts of the story are out of order, and describing several

itemsthatareunclear).
Lest one think the details and timeline ever solidified,
theydidnot.ItonlybecamemoreconvolutedwhenDassey
appeared,withoutcounsel,attheMay13interrogation,after
his lawyers own investigator, OKelly, had interrogated
him. As we noted, that interrogation was not used at trial
and the details are not discussed by the district court or by
the parties. It was used, however, as part of the post
convictionhearing,andispartoftherecord.SeeR.1934.At
thepostconvictionhearingWisconsinDistrictAttorneyKen
Kratz described that May 13 interrogation as a fiasco in
whichDasseygaveinconsistentstatements.R.1926at97.
Details both significant and insignificant changed, not only
from the prior confession on March 1, but also within
minutesofbeingdisclosedattheMay13interrogation.Das
seychangeddetailsaboutthingsasbenignasridinghisbike
to things as important as whether or not he cut Halbachs
throat.R.1934at7,25.Dasseywasinconsistentabouthow
Halbach was restrained, about whether he saw Halbachs
vehicle,theorderofevents,factsaboutherbody,wherevar
iouseventsoccurred,wherethemurderweaponcamefrom,
whatitlookedlike,andwhatitwasusedfor,whereHalbach
wasstabbed,and,aswewillseeinalaterexample,whether
hecutHalbachshairornot.Dasseyisnotmerelyapoorsto
rytellerwhoforgetsdetailsandorders,butratherthedetails
andtheorderchangesinwaysthatdonotamounttoconfu
sion anderrorbutrather afiasco ofastoryuntil, aswe
willsee,theinvestigatorssteerhimtotheversionofthesto
rythatfitstheirtheoryofthecase.
No.163397 61
Forexample,intheMarch1interrogation,onseveraloc
casions the investigators tried to pin down the constantly
changingorderofevents.Theeventsaregruesome,serious,
anddistinct,andtheorderiscriticaltohowtheywereper
formed. For example, it is far different to choke a victim
whosethroathasbeencutthantocutthethroatofavictim
who has been choked. Nevertheless, Dassey cannot keep
thesedetailsstraight.InitiallyDasseysaidthatHalbachwas
stabbed, tied up, and then choked R. 1925 at 5455. Mo
mentslaterhestatedthatshewastiedup,thenstabbed,then
chokedId.at56,andafewtranscriptpageslaterheassures
the investigators that he is sure that she was stabbed,
choked,andthentiedupId.at59;butafewpagesafterthat
he stated that she was stabbed, tied up and her throat was
cut Id. at 64. Finally, he circles back to a retelling in which
hesaysthatHalbachwastiedup,stabbedandthencutId.at
101. At one point the investigators are desperate to get the
orderright:
Fassbender: Brendan, were in the bedroom
yet, OK? (Brendan nods yes) Shes hand
cuffed yet right? (Brendan nods yes) And
youretellinmeif,obviouslycorrectmeifIm
wrong, what we heard. (Brendan nods yes).
Whilesheshandcuffedandalive,hestabsher.
Brendan: (nodsyes)mmhuh.
Fassbender: Chokes her? Right? (Brendan
nodsyes)Isthatright?
Brendan: (nodsYes)mmhuh.
Fassbender: And then he has you cut her
neck?
62 No.163397
Brendan: Yeah.
Id. at 66. But just when the investigators thought that they
hadtheorderdown,attheendoftheinterviewtheyasked
onemoretimetolockitinandtheorderfallsapartagain:
Wiegert: Welllets,letsjustgobackalittle
bit OK? Telluswhat exactlyhappenedto her,
whatorderithappenedin.Yousaidtherewere
basicallythreethingspriortoyouguysshoot
ing her. Explain those in, in the order that it
happened.
Brendan: Startingwithwhenwegotinthe
room?
Fassbender: OK.
Wiegert: Yeah,whatyouguysdidtoher.
Brendan: Wehadsexwithher
Wiegert: OK.
Brendan: Thenhestabbedher.
Wiegert: Thenwhostabbedher?
Brendan: Hedid.
Wiegert: Whoshe?
Brendan: Steven.
Wiegert: OK,andthenwhat?
Brendan: ThenIcutherthroat.
Wiegert: OK.
Brendan: AndthenhechokedherandIcut
offherhair.
No.163397 63
Wiegert: OK. So he choked her after you

cutherthroat?
Id. at 13233. This is not a confession that becomes increas
ingly more coherent and clear over time, as the defendant
reveals more and more of the truth. To the contrary, alt
hough Dasseys culpability throughout these changes re
mainsthesame,thehorrificstorybecomeslessandlessco
herentuntilbytheendAveryischokingawomanwhohas
already had her throat cut. Yet through all of this tying,
stabbingandthroatcutting,Dasseyinsistshedidnotgetany
bloodonhimself:
Wiegert: You said that you had cut her
throat. (Brendan nods yes) Heres the thing
Brendan, when you, cut somebodys throat,
theybleedalot,(Brendannodsyes)OK?Am
Iright?
Brendan: (nodsyes)Yeah.
Wiegert: She bleed a lot, (Brendan nods
yes)soIknowyouhadbloodonya,itspret
tymuchimpossiblenotto.Didyouhaveblood
onyou?
Brendan: (shakesheadno)No.
Wiegert: Noneatall?
Brendan: (shakesheadno)uhuh.
Wiegert: What about when you moved
her?
64 No.163397
Id.at11617.
In short, a reasonable state court that had carefully re
viewed the confession would have quickly determined that
theinterrogatorspleasforhonestyirrespectiveofhowthey
intended themdid not have the effect of eliciting honesty
from Dassey, but rather had the effect of eliciting guesses
fromDasseyaboutwhattheinvestigatorswantedtohear.In
Dasseys mind,thewordsbehonest andthe likecameto
mean guess again until you say what we want to hear.
Consequently, the interrogation became not one of eliciting
honesty through a voluntary confession, but one of leading
Dassey into the story the interrogators wanted to hear. No
whereisthismoreclearthaninthefollowingtwoexamples
below.
Thefirstexamplecomesfromthekeypartoftheinterro
gation.Aswenotedearlier,bythetimeoftheMarch1inter
view,theinvestigatorsknewthatHalbachhadbeenshotin
thehead.Theyalsoknewthatthebatteryhadbeenremoved
from her Toyota RAV4. These two details had not yet been
releasedpubliclyandthusDasseysknowledgeofthesede
tails would be particularly inculpatory. It is a common in
vestigativetechniquetoholdbackdetailsofacrimefromthe
mediaandpublictotestthevalidityofaconfession.Thefol
lowing exchange demonstrates many of the totality factors
and interrogation techniques we will describe below
Dasseys naivet, false information (we already know),
minimizingDasseysroleinthecrime(hemadeyoudoit),
and admonitions to tell the truth. But in particular it
demonstrateshowtheinterrogatorsadmonitionstotellthe
truth cue Dassey to keep guessing, and most importantly,
howtheinterrogatorstaintedthevoluntarinessoftheinter
No.163397 65
view by feeding Dassey the information that Halbach was

shotinthehead.
Wiegert: What else did he do to her? We
know something else was done. Tell us, and
whatelsedidyoudo?Comeon.(pause)Some
thingwiththehead,(pause)Brendan?
Brendan: Huh?
Fassbender: cant
Wiegert: Whatelsedidyouguysdo,come
on.
Fassbender: What he made you do Brendan?
Weknowhemadeyoudosomethinelse
Wiegert: What was it? (pause) What was
it?
Fassbender: We have the evidence Brendan,
wejustneedyouta,tabehonestwithus.
Brendan: Thathecutoffherhair.12
***
Fassbender: What else was done to her head.
(pause)
Brendan: Thathepunchedher.
Wiegert: What else? (pause) What else?
(pause)

12WenotethatDasseysintonationrisesattheendofthisstatement,as
thoughheisaskingaquestion.R.1944,Ex.43,Disc1at11:57:41.
66 No.163397
Fassbender: He made you do something to

her, didnt he? So he would feel better about
notbeingtheonlyperson,right?Yea.
Wiegert: mmhuh.
Fassbender: Whatdidhemakeyoudo?
Wiegert: What did he make you do Bren
dan? (pause) Its OK, what did he make you
do?(pause)
Dassey: Cuther.
Wiegert: Cutherwhere?
Brendan: Onherthroat.
***
Wiegert: So Steve stabs her first and then
you cut her neck (Brendan nods yes). What
elsehappenstoherinthehead?
Fassbender: Its extremely extremely im
portantyoutellusthis,forustobelieveyou.
Wiegert: Come on Brendan, what else?
(pause)
Brendan: ThatisallIcanremember.
Wiegert: Allright,Imjustgonnacomeout
andaskyou.Whoshotherinthehead?
Brendan; Hedid.
Fassbender: Thenwhydidntyoutellusthat?
Brendan: CuzIcouldntthinkofit.
R.1925,at6063.
No.163397 67
Thisexampledemonstrateshowcriticalthesteeringwas
to Dasseys confession. Recall that the gunshot wounds to
theheadwereunknowntoanyonebuttheinvestigatorsand
therealkillerandthuswerekeytodeterminingtheveracity
of the confession. Dassey couldnt think of it and instead
launched into a litany of other dubious guesses about ac
tionsthat mighthavebefallenTeresa. Shootingalivinghu
maninthehead(orseeingithappen)isnotsomethingthata
personislikelytoforget.Indeed,Dasseylaterdescribedhow
hecouldnolongershootagunorgohuntingbecausehehad
beentraumatizedbytheshootingof his pet cat:Icouldnt
shoot no more cuz we used to have a cat that was like
somethinwaswrongwithemandwehadtoshootembe
cause we didnt want to pay for the bills and my mom
told me not to watch when hers nows exboyfriend shot it,
shotemandIcouldntwatch.Id.at6566.Butyetdespite
theimpactofthecatincident,Dasseycouldnotthinkofit
when asked what was done to Halbachs head. Cleary his
inabilitytodescribetheshootingwasnotanefforttoprotect
himself,ashehadjustadmittedtoslittingHalbachsthroat.
Afterguessingmanyofthemostcommonthingsthataper
sonmightdotoavictimsheadcuttinghair,punching,cut
tingthethroathesimplycouldnotthinkofanythingelse
that was done to her head until Wiegert says, Im just
gonnacomeoutandaskyou.Whoshotherinthehead?Id.
at63.Suddenlyhecould[]thinkofit.Id.Andofcoursehe
hadtothinkofitbecauseFassbenderhadjusttoldDassey
thatitwasextremelyimportantforyoutotellusthis,forus
to believe you. In other words, finding the right answer
was the key to freedom and pleasing the interrogators be
cause the truthmeaning what the investigators wanted
Dasseytosaywouldavoidconflictandsethimfree.
68 No.163397
This example also reveals the power that the false as

sumptiontechnique(describedmorebelow)hadonDassey.
The who shot her in the head? question is the proverbial
when did you stop beating your wife? assumption. And
Dassey is quick to respond despite having no idea what
happened to Halbachs head just a few seconds earlier.
Likewise,inthefollowingexchange,aconfusedDasseyfalls
rightintothetrapagain.13
Fassbender: Thefirsttimewetalkedtoyouor
the second time you talked about cutting off
her hair. Where did the hair go? Did you cut
offherhair?
Brendan: Yeah.
Fassbender: Wheredidthathappen
Brendan: Inthe,inthe,bedroom.
Fassbender: Whatyacutthehairoffwith?
Brendan: Theknife.
Fassbender: The knife you found in the gar
age?
Wiegert: Itdoesntmakesense.

13 Thisexchange comes from the May13 interviewwhich,as we noted
earlier,wasnotusedattrial.Itwasadmittedatthestatepostconviction
proceedingsandispartoftherecord.R.1934.Wehighlightitonlyasan
exampleofDasseysconfusedresponsestoleadingquestions.Asaside
note, this conversation also serves as a glimpse into the interrogators
clear efforts to have Dassey move all of the events of the crime to the
garage,asnoforensicevidencewasfoundinAverystrailer.
No.163397 69
Fassbender: Its impossible. You took her out

to the garage and thats where you got the
knife. Explain how that can be. (pause) Did
youcutherhairoff?
Brendan: No.
Fassbender: Then why did you tell us you
did?Brendan?
Brendan: Idontknow.
***
Fassbender: Do you remember telling us pri
or?Thelasttimethatyousawthatstuffinthe
burnbarrel?
Brendan: Yeah.
Wiegert: Sowhydidyoudothat?
Brendan: Ihadtoomuchstuffonmymind.
Wiegert: So now you remember a little
more clearly? OK. How much of her hair did
youcutoff?
Brendan: Alittlebit.
Wiegert: You told me acouple ofminutes
ago you didnt cut any off. Whats the truth?
Didyoucutsomeofherhairoff?
Brendan: No.
***
Fassbender: did anyone cut her hair off
thatnight?
70 No.163397
Brendan: No.(shakesheadno)
Fassbender: Where did you get that from?
(pause) I mean it seems kind of strange that
youjustallofasuddentoldusyouhadcuther
hairoff.Wheredidyougetthatfrom,ifitsnot
true?
Brendan: Idontknow,Iwasjustguessing.
Fassbender: Why, Did you think that was
somethinwewantedtohear?
Fassbender: Brendan, didnt did someone
some one [sic] cut her hair off that night?
Truthfully,forTeresa?
Brendan: No.(shakesheadno)
R.1934at3637,6566,98(emphasisadded).Infactinves
tigators never found any evidence of Halbachs hair on
Averysbed,hiscarpet,anywhereinhistrailerorthegarage.
Investigators also hoped that Dassey would reveal an
otherdetailunknowntothepublicthefactthatthecarbat
teryhadbeendetached:
Wiegert: After he put the car there, what
doyoudonext?
Brendan: Wewalkout.
Wiegert: With, hows, the license plates
weretakenoffthecar,whodidthat?
Brendan: Idontknow.
Wiegert: Didyoudothat?
Brendan: (Shakesheadno)No.
No.163397 71
Wiegert: DidStevedothat?
Brendan: Yeah.
Wiegert: Well then whyd you say you
dontknow?
***
Fassbender: Ok, what else did he do, he did
somethinelse,youneedtotelluswhathedid,
after that car is parked there. Its extremely
important.(pause).Beforeyouguysleavethat
car.(pause)
Brendan: Thathelefttheguninthecar.
Fassbender: Thats not what Im thinkin
about. He did something to that car. He took
the plates and he, I believe he did something
elsetothatcar.(longpause)
Brendan: Idontknow.
Fassbender: OK.Didhe,didhegoandlookat
theengine,didheraisethehoodatallorany
thinglikethat?Todosomethingtothatcar?
Brendan: (longpause)Yeah.
Fassbender: Whatwasthat?(pause)
Wiegert: WhatdidhedoBrendan?(Pause)
Fassbender: What did he do under the hood,
ifthatswhathedid?(longpause)
Brendan: I dont know what he did, but I
knowhewentunder.
72 No.163397
R. 1925 at 7779. No reasonable court could read these ex

changesandconcludethattheseideascamevoluntarilyfrom
Dasseysmind.
Althoughthesewerethetwomostegregious,theywere
not the only examples of the investigators feeding Brendan
answers. In the following exchange, Dassey insisted for
sometimethathehadnoideawhathappenedtoHalbachs
personal effects. After some leading from Fassbender, in
which Fassbender initiated the idea that there must have
been a purse, a cellphone and a camera in the burn barrel,
Dasseywasabletoparrotthathesawtheseexactthreeitems
in the burn barrel. Even the investigators seem concerned
about the veracity of his statements, asking him several
timestoverifythetruth,particularlyinlightofhisclaimthat
hesawtheitemsbeneathagarbagebag,anitemthatwould
have melted within seconds in a fire. Once again, at this
point Dassey has no motivation to lie or obfuscate facts
aboutwhetherAveryburnedHalbachspropertyintheburn
barrel,ashehasalreadyadmittedseveraltimesthatheand
AverykilledHalbachandburnedherbody.Neverthelesshe
alteredhisanswersinresponsetothecuesfromtheinvesti
gators.Theytoldhimexactlywhichitemswerefoundinthe
burnbarrelandthencuedhimtotellthetruthwhich,we
have established, had the effect on Dassey of meaning tell
uswhatwewanttohearandkeepguessinguntilyougetit
right.
Fassbender: OK.WetalkedlasterMondaywe
talked a little about some things a burn barrel
out front do you remember anything about
No.163397 73
thatburnbarrel?Itsahyoumightwannabea
littlemoretruthfulaboutnow.14
Brendan: Thatitwasfullofstuff.
Fassbender: Wasitburning?
Brendan: Yeah.
Fassbender: Did you put some things in that
burnbarrelthatnight?
Fassbender: WhathappenedtoTeresasother
personal effects? I mean ah a woman usually
hasapurseright?(Brendannodsyes)Tellus
whathappenedtathat?
Brendan: I dont know what happened to
it.
Fassbender: Whathappenedtaherah,hercell
phone? (short pause) Dont tryta ta think of
somethinjust.
Brendan: Idontknow.
Fassbender: Did Steven did you see whether
ahacellphoneofhers?

14 In the earlier interview, on February 27, after asking about Avery
burning clothes, Fassbender asked, Did he tell ya anything about a, a,

anyofherotherpossessionslikeIimagineawomanwouldhaveapurse,
she probably had her cell phone, a camera to take pictures. Did he tell
youwhathedidwiththosethings?R.1924at36).Thetranscriptindi
catesnoanswer,butFassbenderfollowsupwithareyousure?indicat
ingthatBrendanlikelyshookhisheadno.Id.
74 No.163397
Fassbender: Doyouknowwhethershe had a

camera?
Fassbender: Did Steven tell ya what he did
withthosethings?
Fassbender: Ineedyatotellusthetruth.
Fassbender: Whatdidhedowithherherpos
sessions?
Brendan: Idontknow.
Wiegert: Brendan, its OK to tell us OK.
Its really important that you continue being
honest with us. OK, dont start lying now. If
youknowwhathappenedtoacellphoneora
camera or her purse, you need to tell us. OK?
(Brendannodsyes)Thehardpartsover.Do
youknowwhathappenedtathoseitems?
Brendan: Heburntem.
Wiegert: Howdoyouknow?
Brendan: Because when I passed it there
waslikelikeapurseinthereandstuff.
Wiegert: Whenyoupassedwhat?
Brendan: Theburningbarrel
Wiegert: Did ya look inside? (Brendan
nodsyes)Whydidyalookinside?
No.163397 75
Brendan: Cuzitwasfull.
Wiegert: Whatelsewasinthere?
Brendan: Likegarbagebags,some
Wiegert: Did you put those things in the
burningbarrel?
Wiegert: Did you actually see those items
intheburningbarrel?(Wiegertemphasizesthe
wordsee.)
Wiegert: Tell me what you saw in there
exactly.
Brendan: Like they were buried under
neathah,garbage,agarbagebagthatwas
Wiegert: Howdoyouknow,orhowcould
you see them if they were underneath a gar
bagebag?
Brendan: Becausethegarbagebagwaslike
ontoplikethatfaroffthetop.
Wiegert: OK. So we have the barrel,
(Brendannodsyes)OK.Whydontyoulook
atmeforasecond,OK.Wevegotthebarrel:
Wiegert: OK and heres is the top of the
barrel (Brendan nods yes) and the garbage
bagisontop?
76 No.163397
Wiegert: And where are those items you

saidyousaw?
Brendan: Likerightunderneaththere.
Wiegert: Underneaththebag?
Wiegert: Well,howwouldyouseethat?
Brendan: Well, if the bags like that far off
theyouknowthetopofthethingyoucansee
thoughunderneathit.
Wiegert: You could see underneath it?
(Brendannodsyes)Whatdidyousee?
Brendan: likeacellphone,camera,purse
Wiegert: Areyoubeinghonestwithus?
Wiegert: Didyouactuallyseethoseitems?
Wiegert: Whendidyouseethem?
Brendan: WhenIcameovertherewiththe
mail.
R.1925at9598(emphasisadded).
Although the government concedes that Who shot her
intheheadwasaleadingquestion,itcharacterizestherest
oftheinterrogationasalitanyofopenendedquestionsthat
were corroborated by other evidence. The many examples
wehavejustcitedbeliethatclaim.Asintheexampleabove,
afterfirstdenyingthatheknewwhathappenedtoHalbachs
No.163397 77
personal effects, and after the investigators cued him, Das

sey ultimately said that he saw no more nor less than pre
ciselythethreeitemstheymentiontohimintheirquestions.
Butthesearemerelyafewofmanyinstancesinwhichinves
tigators explicitly told Dassey what facts he was to report:
Weknowthefirewasgoing[whenyouarrived]Id.at23;I
thinkyouwentovertohishouseandthenheasked[you]to
gethismail.Id.at41;Youwentinside,didntyou?Id.at
41;Doesheaskyou[torapeHalbach]?Hedoes,doesnthe?
We know. He asks you, doesnt he? Id. at 47; You went
backinthatroomweknowyouwerebackthere.Id.at48;
He asked if you want some, right? If you want some
pussy? Id.; You were there when she died and we know
that.Id.at54;Hedidsomethingelse,weknowthat.Id.at
54; We know that some things happened in that garage,
andinthatcar,weknowthatId.at71.
The investigators even told Dassey what kinds of lan
guage he should use. When Dassey told the investigators
that Avery had raped Halbach, Fassbender asked him,
Whatdidhesay?Didheusethosewords?Dasseynodded
affirmativelybutWiegertknewthatdidnotsoundaccurate
andcuedhimwhyitdidnot:Areyousurecuzitsusu,not
usually the words he uses? But Dassey nodded and said
yeah.R. 1925at36.Butthenexttimetheyaskaboutthe
sexualassault,Dasseyhasfiguredoutwhattheywantedto
hearandtheyrewardhimbytellinghimthatnowtheycan
startbelievinghim:
Brendan: Thathewantedtogetsome.
Fassbender: Somewhat?
Brendan: Pussy.
78 No.163397
Wiegert: Thats what he said to you?

(Brendannodsyes)OK.
Fassbender: Now I can start believing you,
OK?(Brendannodsyes).
Id.at46.
Now that we have set forth the pattern of questioning
(the truth is what the investigators wanted Dassey to say
and that truth was linked to pleasing the interrogators and
his freedom), we turn to the remaining parts of the confes
sion which likewise influence our decision that no reasona
blecourt,havingviewedtheinterrogationasawhole,could
havefoundthatDasseysconfessionwasvoluntary.
2. Dasseyscharacteristicsandlimitations.
Sixteenyearold Dassey walked into the interrogation
roomwithoutaparent,alawyer,oranadvocatetolookout
for his rights. He had never had any contacts with law en
forcementpriortohisinterviewsinthiscase.Asdescribedin
the fact section, he was passive, docile and withdrawn. He
alsosufferedfromintellectualdeficits.HisIQwasinthelow
average or borderline range. He was a slow learner with
really,reallybadgrades,R.1912at66),whoreceivedspe
cial education services and was the subject of at least three
Individualized Education Programs, documents developed
forchildrenwithspeciallearningneeds.Specifically,hehad
difficulty understanding some aspects of language and ex
pressinghimselfverbally.Healsohaddifficultiesintheso
cialaspectsofcommunicationsuchasunderstandingand
using nonverbal cues, facial expressions, eye contact, body
language,toneofvoice.R.1912at91.Testingalsorevealed
that he had extremely poor social abilities, that he was so
No.163397 79
cially avoidant, introverted and alienated, and that he was

likelytobemoresuggestiblethan95%ofthepopulation.
3. Assurancesandpromises.
a. Paternalisticassurances
Sittingacrossfrom theyoung, sociallyand intellectually
challenged Dassey were two seasoned police interrogators.
Dassey had no adult advocate, but the investigators sought
to fill that role and convince him that they were the adults
who were on his side. During the first recorded interview,
onFebruary27,Fassbendersetthetone,saying,
Ivegot...kidssomewhatyourage,Imlookin
at you and I see you in him and I see him in
you, I really do, and I know how that would
hurt me too. ... Mark and I, yeah were cops,
were investigators and stuff like that, but Im
notrightnow.Imafatherthathasakidyour
agetoo.Iwannabehereforyou.Theresnoth
ing Id like more than to come over and give
youahugcuzIknowyourehurtin.
R.1924at5.
The paternal assurances and relationship building con
tinuedintotheMarch1interview:Iwannaassureyouthat
Mark and I both are in your corner, were on your side ...
R.1925at16,and...Imyourfriendrightnow,butI...got
ta believe in you and if I dont believe in you, I cant go to
batforyou.Id.at23.15WiegertrepeatedlytouchedDasseys

15 The State portrays these statements as having been made during a
timewhentheinvestigatorsstillconsideredDasseytobeawitnessrather
than a suspect, but prior to this March 1 interview, the investigators
80 No.163397
knee in a compassionate and encouraging manner during

the March 1 interview. See, e.g., R. 1944, Ex. 43, Disc 1 at
11:20:28 a.m., 11:29:04 a.m., 11:37:32 a.m., 11:41:09 a.m. In
oneinstance,WiegertputhishandonDasseysknee,leaned
forward, and said reassuringly and encouragingly, We al
readyknowBrendan.Wealreadyknow.Comeon.Behonest
withus.Behonestwithus.Wealreadyknow,its,OK?We
gonna help you through this, alright? Id. at 11:29:04 a.m.;
R.1925 at 37. He later did this again while saying, Bren
dan, I already know. You know we know. OK. Come on
buddy.Letsgetthisout,OK?Id.at11:37:32a.m.;R.1925
at44.Andwithinafewminutesofthiskneetouchandap
pealtohisbuddy,DasseyconfessedtorapingHalbach.Id.
at5051.
The government makes much of the fact that Wiegert
stated at the beginning of the interview, [w]e cant make
anypromises,butthatoneearlyadmonitionwascountered
byhoursandhoursofsubtleandnotsosubtledeclarations
otherwisethe death by a thousand cuts. Moreover,
Wiegertsfullstatementwas:Wecantmakeanypromises,
butwellstandbyyounomatterwhatyoudid.R.1925at
17.Whatwouldareasonablepersonmakeofanadmonition
not to count on any promises, followed immediately by a
clear, unconditional promise? More importantly, what

thoughtitwaspossiblethatBrendanmighthavebeeninvolvedinthe
disposalofthecorpse.R.1930at38.And,aswesetforthlater,thein
vestigators continued their assurances that Dassey would be alright
throughouttheinterview,allofwhichhadbeenprefacedandcontextu
alizedbytheearlyassertions.
No.163397 81
wouldBrendanDassey,withhislimitedintelligenceandso
cialskills,thinkofthisadmonitionlinkedwithapromise?
b. Falsepromisesofleniency.
Afterpaintingthewereonyoursidebackdrop,thein
vestigators brought in the main scaffolding of their ap
proachthe false promises that Dassey would be better off
confessing than remaining silent. Some of these promises
were problematic in and of themselvesfor example, a
promise that if Dassey told the truth, he would be set free.
Theotherpromiseserodedvoluntarinessbecausetheywere
linkedtoarequirementtotellthetruth,which,aswehave
established meant the version of the storythat the investi
gators wanted to hear. By linking what the investigators
wanted to hear with assurances that those versions would
make Dassey alright and okay, the confession became
notone borneof Dasseysfreewillbutofthe investigators
wills.
The investigators began the interrogation with a mono
logue, the theme of which was that Dassey could improve
hislotbytellingthetruth,andculminatinginthestatement,
Honestyistheonlythingthatwillsetyoufree.R.1925at
17. As the district court noted, this a biblical idiom that
many adults would recognize as a figurative expression.
Dasseyv.Dittmann,201F.3d.at1002.Dassey,however,was
notsomeonewhounderstoodidiomsandsubtledistinctions
between literal and figurative language. His school special
education reports (prepared long before the crime or trial,
foruseatschool)notedinparticularthatidiomswereanas
pectoflanguagethatDasseyhadtroubleunderstanding.R.
1920 at 79. This is a juvenile who, after all, when told that
hispolygraphshoweda98%probabilityofdeceptionasked,
82 No.163397
I passed? R. 1938 at 1. And when the tester repeated It

saysdeceptionindicated,emphasizingtheworddeception,
Dasseyasked,ThatIfailedit?Id.Andwhendrawingpic
tures of the crime scenes for the detectives, he needed help
spellingwordslikerackandgarage.R.1925at124,128.
Likewise he was unlikely to understand that the other
veiled,subtlepromisesofleniencywerenotactualpromises.
Andasweknow,alawenforcementofficermaynotpromise
a defendant that if he confesses he will be set free. Hadley,
368 F.3d at 749; Rutledge, 900 F.2d at 1129. See also Aleman,
662F.3dat906.
The investigators sounded the theme of truth leads to
freedomagainandagaininthatopeningmonologue:
Its going to be a lot easier on you down
theroad,ah,ifthisgoestotrial.
[H]onestyhereBrendanisthethingthats
gonna help you. OK, no matter what you
did, we can work through that. OK. We
cant make any promises, but well stand
behind you no matter what you did. Ok.
Because youre being the good guy here.
Youre the one thats saying, you know
what? Maybe I made some mistakes, but
hereswhatIdid.
[T]he honest person is the one who is go
ingtogetabetterdealoutofeverything.
If, in fact, you did something, which we
believeitsOK,aslongasyoubehonest
with us, its OK. If you lie about it, thats
gonnabeproblems.
No.163397 83
R. 1924 at 17. And of course, there was the most direct

promise, honesty is the only thing that will set you free,
(R.1925at17).
Promisescomeinmanyforms.Itistruethattheinvesti
gators never made the type of explicit and specific promise
of leniency that an adult of ordinary intelligence might un
derstandasapromise,suchasifyouconfesswewillmake
certain that you will not be punished. But to a suggestible
suspectwithpoorsocialskills,lowIQ,andalimitedability
tounderstandidiomsandmetaphors,thoseimpliedpromis
es,madeover andover,had thesame effectaneffectthat
could have been mitigated by the presence of a friendly
adult.
Likewise,itwasnotjustthepromisestobesetfreethat
constitutedapromiseofleniency,butpromisesthatDassey,
who was exceptionally introverted and socially avoidant,
could escape the unpleasant conflict and social interaction,
by providing what the interrogators wanted to hear. Hon
esty wouldallow themto be onhis sideandallowhimto
getitalloutandoverwithandgetoutofthatinter
rogationroom.SeeR.1925at48.Althoughthefurniturein
theroommayhavebeensoft,thenonstopinterrogationby
twoadultsofauthoritywouldbeveryintimidatingandanx
ietyproducingtoanyonebutparticularlyforsomeoneinthe
95thpercentileonthescaleforsocialavoidance.
c. Couplingassurancesandpromiseswithfalseasser
tionsofknowledge.
Oneformofapromisecomesfromcouplinganacknowl
edgement of the facts with an assurancein other words,
stating we already know everything you did and, even
84 No.163397
knowingallofthat,everythingisgoingtobeokay.Thein
vestigatorspepperedtheentireinvestigationwithassuranc
es that Dassey was going to be alright, coupled with
acknowledgements that they were making these assurances
notwithstanding all of the horrible facts that they already
knew. Those pleas promised that the key to unlocking the
youregoingtobealrightresultwashonesty.
The assurances that Dassey would be alright came in
many forms: from what Im seeing ... Im thinking youre
allright.OK,youdonthavetoworryaboutthings.R.19
25 at 16; [N]o matter what you did, we can work through
that.Id.at17;ItsOK.Aslongasyoucan,aslongasyou
behonestwithus,itsOK.Ifyoulieaboutitthatsgonnabe
problems.OK.Id.;Wealreadyknow.Justtellus.ItsOK.
Id.at24;ItsOKbecausehewastellingyoutodoit.Id.at
28; We already know, its, OK?Were gonna help you
through this, alright? Id. at 37; Its OK Brendan. We al
readyknow.Id.at41;ItsOK,telluswhathappened.Id.
at46;Itsnotyourfault.Id.at47;Letsgetitallouttoday
andthiswillbealloverwith.Id.at48;ItsOK,whatdyou
dowithit?Id.at76;Brendan,itsOKtotellusOK.Id.at
96.
Again, the power came, not from the assurances alone,
but the assurances coupled with the false information that
theinvestigatorsalreadykneweverything.Theinvestiga
torswerenotmerelytellingDassey,Baseduponwhatyou
havetoldussofar,wedontthinkyouhaveanythingtowor
ryabout.Rather,whattheytoldDasseywas, Wealready
knowwhathappenedandyoudonthaveanythingtoworry
about.
No.163397 85
Those assurances that they already knew everything,

linkedwiththepleaforhonestywereplentiful:Wepret
ty much know everything[.] [T]hats why were talking to
you again today. R. 1925 at 17. [N]ow remember this is
very important cuz we already know what happened that
day. Id. at 19;see alsoId. at 23 (We already know what
happened[.]);Wealreadyknow.Justtellus.ItsOK.Id.at
24; Come on we know this already. Be honest. Id. at 26;
Remember we already know, but we need to hear it from
you.Id.at28;Sojustbehonest.Wealreadyknow.Id.at
30; We already know, be honest. Id. at 36; We already
knowBrendan.Wealreadyknow.Comeon.Behonestwith
us. Be honest with us. We already know, its, OK?Were
gonna help you through this, alright? Id. at 37; Its OK
Brendan. We already know. Id. at 41; Cuz, we, we know
butweneeditinyourwords.Icant,Icantsayit.Id.at44;
Brendan, I already know. You know we know. OK. Come
onbuddy.Letsgetthisout,OK?Id.at44;Remember,we
alreadyknow,butweneedtohearitfromyou,itsOK.Its
not your fault. Id. at 47; We know you were back there.
Letsgetitallouttodayandthiswillbealloverwith.Id.at
48; We know what happened, its OK. Id. at 50. (For a
more complete list of these assurances, see Dassey v.
Dittmann,201F.Supp.3dat1002.)
Inoneinstance,whenaskingDasseyifhehelpedAvery
putHalbachinthebackofherRAV4,Wiegertexplicitlyas
sured Dassey, If you helped him, its OK, because he was
tellingyoutodoit.Youdidntdoitonyourown.R1925at
28.Butofcourse,itwouldnotbeokayforDasseytohelp
mutilateanddisposeofacorpsesimplybecauseAverytold
himtodoit.Andlikewise,itcouldnotbeanyfurtherfrom
okayforDasseytorapeHalbachbecauseAverytoldhim
86 No.163397
to do it. Yet as they were walking Dassey down the path,

stepbystep, to admitting that he had raped Halbach, they
stated,
Wiegert: What happens next? Remember,
wealreadyknow,butweneedtohearitfrom
you,itsOK.Itsnotyourfault.Whathappens
next?
Fassbender: Doesheaskyou?
Wiegert: Hedoes;doesnthe?
Fassbender: Weknow.
R. 1925 at 47 (emphasis added). And then, as he struggled
totellthemthedetailsoftheallegedrape,theyagainassure
him,itsnotyourfault,hemakesyoudoit.Id.at50.The
investigators assured Dassey that once he revealed the de
tailsoftheallegedrape,thiswillbealloverwith.Id.at48.
Similarly, just before Dassey stated that he cut Halbachs
throat,WiegertpromptedDasseybytellinghim,Whatdid
he make you do Brendan? Its OK, what did he make you
do?Id.at62.Recall,ofcourse,thatbecauseHalbachsbody
was burned (adding even more atrocity to the crime) there
wasnoforensicevidencethatshehadbeenrapedorthather
throathadbeencut.
Wecanhavenoconfidencethatanyperson,butparticu
larly one with Dasseys IQ and suggestibility, would think
thatyouregoingtobealrightand[l]etsgetitalloutto
dayandthis willbe all over withmight lead toa lifesen
tenceinprison.Alifesentenceisneitheralrightnorsome
thingthatwouldputthemattertorestandbeoverwith.
Andinfact,weneednotspeculateastohowDasseywould
interpret those promises, because we know exactly what
No.163397 87
Dasseymadeofthemthatifhetoldthetale,astheinterro
gatorshadintroducedittohim,hewouldbereleased.After
confessing to the heinous crimes of raping Teresa Halbach,
slittingherthroat,andthenburningherbody,Dasseyasked
if he would make it to school by 1:29 p.m. so that he could
turninaprojecthehaddueinhissixthhourclass.R.1925
at 89. And later he asked Am I gonna be at school before
schoolends?Id.at143.WhenFassbenderaskedhimatthe
endoftheinterrogationifheknowswhatisgoingtohappen
next,DasseysaysIdontknow.Id.at144.Whentheytell
him he will be arrested, he responds, Is it only for one
day? Id. These lamentably nave questions suggest that
Dassey counted on these assurances that he would be
okay to mean that he had a free pass to say whatever he
wanted(or,moreaccurately,whateverhethoughttheinves
tigatorswantedtohear)andwouldnotgotojail.Certainly
noadulthadwarnedhimotherwise.
Once again we recognize that false promises, like other
interrogation techniques, do not, per se, make a confession
involuntary. Villalpando, 588 F.3d at 1128. Promises,howev
er, cannot be viewed in a vacuum, but rather assessed as
they interact with a defendants unique characteristics. A
matureadultofordinaryintelligencemightalwaysappreci
atethatregardlessofanyassuranceshehasbeengiventhat
his incriminating statements might put him in prison. But
thestateappellatecourtviewedthewordsoftheinterroga
torsalonewithoutreferencetoDasseyandwithoutlooking
attheircumulativeeffectandconcludedthatthosewordsby
themselves did not promise leniency, but rather merely en
couraged honesty. This is an unreasonable finding of fact
andanunreasonableapplicationofthefederallawstotali
tyofthecircumstancesrequirementtothosefacts.
88 No.163397
If, in fact, the state court had looked at those promises,

notastheystoodalone,butcumulativelyandinlightofthe
factthattheywerelinkedtotheinterrogatorsrequirements
that Dassey tell them what it was they wanted to hear, it
could not have come to any other conclusion but that Das
seysfreewillwasovercome.Andwhereadefendantswill
is overborne by the circumstances of the interrogation, due
processprecludesadmissionofaconfession.Schneckloth,412
U.S.at22526.
d. Thecombinedeffectofthepromises.
The false promisesthat he will be alright, that it is
nothisfaultthatthetruthwillsethimfreeclearlyaffect
ed the voluntariness of Dasseys confession. Villalpando, 588
F.3d at 1128 (a false promise [of leniency] has the unique
potential to make a decision to speak irrational and the re
sulting confession unreliable.) The message Dassey heard
loudly and clearly was that the truth was the key to his
freedom, and the truth meant those things that the inter
rogatorswantedhimtosay.Althoughthepointhasalready
been made, we include a few more examples to emphasize
how readily apparent the involuntariness of Dasseys con
fession ought to have been to any reasonable court review
ingtheconfessioninitstotality.Onceagain,theseexamples
establishaclearpatternoftheinvestigatorssubtly(ornotso
subtly) feeding options to Dassey and then admonishing
himtobehonestwhenhisanswersdonotfittheirtheory
ofthecase.WhenDasseyhitsuponthecorrectfactshowev
er,interrogatorslockinthestorybytellinghimnowwebe
lieve you. In the first example, Wiegert knew there were
bullet casings found in the garage, but no bullet holes or
shell casings found in Halbachs vehicle, so he worked to
No.163397 89
bring Dasseys answers in line with this evidence. Dasseys

culpabilitydoesnotdependonwhereHalbachwasshot.His
only stake is in determining what the investigators want
thetruthtobe,becausethethetruthisthekeytopleas
ing the interrogators, getting out of the interrogation room,
andsettinghimfree.
Fassbender: Telluswhereshewasshot?
Brendan: Inthehead.
Fassbender: No,Imeanwhere,inthegarage?
Brendan: Oh.
Fassbender: Outside,inthehouse?
Brendan: Inthegarage.
Fassbender: OK.
Wiegert: Was she on the garage floor or
wassheinthetruck?
Brendan: Inthetruck.
Wiegert: Ahhuh,comeon,wherewasshe
shot?Behonesthere.
Fassbender: Thetruth.
Brendan: Inthegarage.
Wiegert: Beforeshewasputinthetruckor
after?
Brendan: After.
Fassbender: So shes in the truck and thats
whenheshootsher?(Brendannodsyes)
***
90 No.163397
Fassbender: And she was in the back of the

truckorSUVthewholetimethatheshother?
Brendan: Shewasonthegaragefloor.
Wiegert: Shewasonthegaragefloor.OK.
Fassbender: Alright.
Wiegert: That makes sense. Now we be
lieveyou.
R.1925at7273.
Similarly, Dassey had no real reason to fabricate what
Halbach was wearing, as it neither increased nor decreased
his culpability. He did, however, have an incentive to give
theinvestigatorsthedetailstheywerelookingforsothathe
could return to school and home. The investigators, on the
otherhand,hadadescriptionofwhatHalbachwaslastseen
wearingbluejeans,awhiteshirt,andaspringjacket,R.19
18at6,andthereforehadaweightyincentivetoalignDas
seysdescriptionswiththeirknownfacts.Asintheprevious
example, this exchange contains factfeeding and pleas for
honesty,butitalsoincludesasafetyvalve.WhenDassey
beganmakingamessofthings,theinvestigatorsencouraged
himtobacktrackandsaythathecouldnotremember.
Fassbender: Do you remember what she was
wearing? I know its a long time ago, dont
guess,ifyouremember,youcansayit.
Brendan: (shakes head no) I dont re
member.
Id. at 20. Yet later when he receives the cue to be honest,
and a set of options (tshirt or buttonup) he does seem to
No.163397 91
recall her clothes. When he gives a conflicting answer, and

contradictshimself,heistoldjusttosayIdontremember.
Fassbender: Didshehaveclotheson?Nowbe
honest. If she did, she did, and if she didnt,
shedidnt.
Brendan: Sortof.
Fassbender: OK.Whatdidshehaveon.
Brendan: Like a white Tshirt and that,
pants.
Wiegert: Whatdoyoumeansortof?Either
shehadclothesonorshedidnt.Its,wassome
ofitonsomeofitoff?What?
Brendan: Itwasripped.
Wiegert: It was ripped (Brendan nods
yes)Wherewasitripped?
Brendan: Like right here. (pointing to
chest)
Wiegert: WasitaTshirtorbuttonupshirt
orwhatkindofshirt.
Brendan: Abuttonupone.
Wiegert: Whatcolor?
Brendan: Likeablackone.
Wiegert: OK, before you said there was a
whiteTshirt.Shehadthatontoo?
Brendan: Yeah.(nodsyes)
92 No.163397
Wiegert: OK, and in the other interview

you said it was blue. Do you remember what
color it was? If you dont remember, say you
dontremember.
Brendan: Idontremember.
Id.at3132.
There is no reason to think that Dasseys pattern of
guessingatthetruthuntilhegotitrightwasanydifferent
whenthestakesmatteredandhisculpabilitywasontheline.
This is particularly true because the investigators had al
ready assured him that, even knowing what they knew
that is, with the truth that they hadDassey would be
okay. The examples below demonstrate how these prom
ises affected the voluntariness of Dasseysconfession of the
mosthorrificactsofthecrime.
Wiegert: What happens after you were
donewatchingTVfor15minutes.
Brendan: ItoldhimIhadtoleavecuzIhad
tacallTravis.
Wiegert: Brendan, be honest You were
therewhenshediedandweknowthat.Dont
start lying now. We know you were there.
Whathappened?
Fassbender: Heaintgonnalietoyou,heywe
knowthatOK.
Wiegert: We already know, dont lie to us
now,OK,comeon.Whathappensnext?
Fassbender: Youre just hurting yourself if
youlienow.
No.163397 93
Brendan: Then he went in, back in there

andhestabbedher.
Wiegert: You were with him? (Brendan
nodsyes)Yes?
Brendan: Yeah.
Id.at54.
Similarly, below, although Dassey had already denied
thathehadtouchedorsexuallyassaultedHalbach,hecame
to understand that his answer I didnt do nothing, was
causingconflict,andwasnotthetruththattheinvestiga
torswanttohearandthatwouldthereforesethimfree.
Wiegert: So you, he, he brings you back
there and he shows you her (Brendan nods
yes)andwhatdoyoudo?Honestly.Because
wethink
Fassbender: Veryimportant.
Wiegert: Weknowhappened.
Fassbender: Itshardtobetruthful.
Wiegert: We know what happened, its
OK.(pause)Whatdidyoudo?
Brendan: Ididntdonothin
Wiegert: Brendan,Brendancomeon.What
didyoudo?
Fassbender: WhatdoesStevenmakeyoudo?
Wiegert: Its not your fault, he makes you
doit.
94 No.163397
Brendan: HetoldmetadoherTascrew
her.
Wiegert: Ok.Didyoudothat?Honestly?
Brendan: Yeah.
Id.at50.
4. Examplesofresistance.
TheStatemakesmuchofthefactthatDasseyresistedthe
interrogators on many occasions. In fact, the State counts
eight occasions in which Dassey resists the interrogators
suggested response. These exchanges differ markedly from
the exchanges in which Dassey shifts or changes his an
swers. For example, in comparison to the example of the
garagefloorandseeingHalbachontheporch,theexchange
between Dassey andthe investigatorsregardingfalseinfor
mation about a tattoo differs significantly in form, length
andfollowup.Mostimportantly,itdoesnotcontainthepat
ternofcontinualpleasforhonestyuntiltheanswerchanges.
In the exchange below, the investigators inserted the false
notion that Halbach had a tattooa tactic interrogators are
trainedtodototestasuspectshonestyandsuggestibility.
Fassbender: Probablywhenshewasalive,did
she have any scars, marks, tattoos, stuff like
that,thatyoucanremember?
Brendan: Idontrememberanytattoos
But then just seconds later, the following exchange oc
curs:
Fassbender: Ok.(pause)WeknowthatTeresa
hada,atattooonherstomach,doyouremem
berthat?
No.163397 95
Brendan: (Shakesheadno)uhuh.
Fassbender: DoyoudisagreewithmewhenI
saythat?
Brendan: No but I dont know where it
was.
Fassbender: OK.
Id. at 13739. Rather than explore the subject further, ask
where the tattoo was and what it looked like, or admonish
Dassey to be honest to encourage him to guess again,
Fassbenderinsteadimmediatelymovedontoanewsubject.
From the investigators perspective, no good could have
comefromfurtherexplorationafterDasseyhaddemonstrat
edawillingnesstogoalongwiththeideathatHalbachhad
atattoo;hejustdoesntknowwhereitwas.Id.Moreover,
Dasseywasabletoaffirmthathedidnotdisagreewiththe
investigators so he was not forced to change his story to
agree.Basedonourpriorexamples,however,onecanimag
inethatifFassbenderhadcontinuedashedidinotherareas,
andthenextquestionheaskedwasBehonest,didshehave
a tattoo of a butterfly or a tiger? Dassey would have re
spondedwithoneortheotheruntilhefoundthecorrectan
swer.
Second,itistruethatatfirstDasseyisfirmaboutthelo
cationoftheknifethatAveryusedtostabHalbach,butonce
the investigators use the code tell us the truth (in other
words,changeyourstorytotelluswhatwewanttohear),
heimmediatelycavedtotheirsuggestion.TheStatecitesthe
initial response, but not the followup where Dassey suc
cumbs.Theinitialexchangewasasfollows:
96 No.163397
Wiegert: Wherewastheknifethatheused,
eryouused.Wheresthatknifego?
Brendan: HeleftitintheJeep.
Wiegert: Hewhat?
Brendan: HeleftitintheJeep.
Wiegert: ItsnotintheJeepnow,wheredo
youthinkitmightbe?
Brendan: Isure[sic]itwas.
Wiegert: DidyouseeitintheJeep?
Brendan: Yeah,cuzhesetitonthefloor.
Wiegert: Whereonthefloordidhesetit?
Brendan: Inthemiddleoftheseats.
Wiegert: Okay.
Id.at8081.
In that exchange, there was no admonition to tell the
truthorinquiriesaboutwhetherhewascertain,ashappened
in the following exchange where he did, indeed change his
answeraboutthelocationoftheknife:
Wiegert: WhWhat about the knife, where
is the knife, be honest with me, wheres the
knife?ItsOK,weneedtogetthatOK?Helpus
out,wherestheknife?
Brendan: Probablyinthedrawer.
Wiegert: Inwhichdrawer?
Brendan: Hisknifedrawer;
Wiegert: Andwheresthat?
No.163397 97
Brendan: Inthekitchen.
Wiegert: Isit probably inthere, ordo you
knowitsinthere.
Brendan: ThatswhereIthinkitis.
Wiegert: Whydoyouthinkitsinthere?
Brendan: Cuzhewouldntletthatknifego.
Wiegert: Cuzhewouldntlettheknifego.
Howdoyouknowthat?
Brendan: Cuzitwasaprettyniceknife.
Id.at121(emphasisadded).
Third,theStatearguesthatDasseyresistedchanginghis
answerregardingwhenAverystartedthefiredespitemany
questions by investigators. But the conversation about the
fire was the very exchange in which the investigators be
camesternwithDasseyandsetforththerulesforthein
terviewthat is, if Dassey failed to tell them what they
wantedtohear,theinvestigatorswouldreprimandhimuntil
heguessedthecorrectanswer.FassbendertellsDasseypre
ciselywhattheonlyacceptableanswerwillbe:
Fassbender: Whataboutthefire?
Dassey: Do you mean if it was started or
somethin?Noitwasnt(shakeshisheadno.)
Fassbender: Ok. Were not going to go any
furtherinthiscuzweneedtogetthetruthout
now. We know the fire was going. Lets
takeitthroughhonestlynow.
Id.at23(emphasisadded).TheStatearguesthatDasseycon
tinuedthroughouttheinterrogationtostatethatthefirewas
98 No.163397
going when he got there, but of course he did: Fassbender

hadmadeitclearfromtheverystartthatthiswastheonly
answerhewouldaccept.
Dassey does indeed resist suggestions that he kept Hal
bachshairanddoessomanytimes.Id.at102.Theproblem
fortheStateisthattheinformationaboutcuttingHalbachs
hair camefromsomeofthe mostsuggestivequestioningof
thewholeinterrogationwhenFassbenderwasdesperately
trying to compel Dassey to tell him what the two of them
had done with [Halbachs] head. Id. at 60. In response to
Wiegerts eight questions in succession about what the two
had done with Halbachs head, Dassey says, with a rising
intonation usually associated with asking a question, That
hecutoffherhair[?]Id.(questionmarkadded,seeR.1944,
Ex. 43, Disc 1 at 11:57:41 a.m.). It is not surprising that he
woulddenykeepingHalbachshairwhenthenotionthathe
cut her hair was simply one of his unsuccessful apparent
guessesatwhathadbeendonetoHalbachshead.Giventhe
origin of the hair comment in the first instance and the re
cantation and then further confusion about the hair at the
May13interview,itisdifficulttomakeanythingofDasseys
commentsabouthaircuttingatall.
Dassey also resisted the investigators several inquiries
aboutwhetherthetwoofthemhadusedsomewireshang
ingfromtherafters,inAverysgaragetodostufftoHal
bach in the garage. R. 1925 at 13233. This is perhaps the
Statesstrongestevidenceofresistance,asthereisnoreadily
apparent reason, apart from the truth, that Dassey resisted
theirquestioningaboutthesewiresotherthan,perhaps,that
hewastoonavetothinkofanunimaginablyhorribleform
oftortureforwhichthosewirescouldhavebeenused.
No.163397 99
Finally, it is also true that Dassey ardently resisted any

suggestion that he shot Halbach or even touched the gun.
Buthehadareasontodoso.Hetoldtheinvestigatorsthat
he had been traumatized when his mothers boyfriend shot
his cat and had decided he couldnt shoot no more after
that episode. Id. at 6566. Having made a clear pronounce
menttohimselfandothersthathewasapersonwhodidnot
shootnomore,hewouldhavebeenunlikelytohavebeen
assuggestibleaboutsuchafact.
ItwasnotjustDasseysabilitytoresistthattheStateused
tosupportthevoluntarinessofDasseysconfession,butalso
the richness of the details he provided and the fact that
physicalevidencecorroboratedmanyofthosedetails.Aswe
notedattheoutset,manyfalseconfessionscontainintricate
detail. Garrett, The Substance of False Confessions, 62 Stan. L.
Rev. at 1054. And many of the elaborate details Dassey re
ported were available in the media reports. It had been
widely reported in the media that Halbachs RAV4 was
found in the salvage yard partially concealed by branches
andacarhood;herremainswerefoundinAverysburnpit
alongwith remnants of clothing;Averyburnedtiresonthe
nightHalbachwaslastseen;elevenriflecasingswerefound
in Averys garage; two rifles were recovered from Averys
bedroom; a key to Halbachs RAV4 was found in Averys
bedroom; the key had Averys DNA on it; Averys blood
was found in Halbachs RAV4; and Halbachs blood was
foundinthecargoareaoftheRAV4.Dasseyv.Dittmann,201
F.Supp.3dat997(citingnewspaperarticles).
TheStatealsoarguesthatphysicalevidencecorroborated
manyof thedetailstowhichDasseyconfessed, but,in fact,
the lack of physical evidence was the weakest part of the
100 No.163397
States case. There was no DNA or other physical evidence

linkingDasseytothiscrimeinanywaynotastrandofhis
DNA in the garage, Averys bedroom, on the RAV4 or its
key, on any knives, guns, handcuffs or any other relevant
place. Despite descriptions of a gruesome killing with stab
bing,throatcutting,haircutting,rape,andashooting,inves
tigators never found a single drop of Halbachs blood, hair
or DNA in Averys notsotidy trailer and garagenot on
thesheets,mattress,carpet,walls,clothing,garagefloor,me
chanicscreeper,gun,handcuffs,orbedposts.Therewasno
forensic evidence supporting Dasseys story that Halbach
had been stabbed, raped, bound or cut. Investigators did
findHalbachsbloodinhervehicleandherDNAonabullet
fragment in Averys garage. R. 1916 at 6266. The district
court pointed out that some of the corroborative evidence
hadbeenchallengedattrialasbeingtheproductofcontam
ination and other unreliable methods. R. 1927 at 21032.
Andinanyevent,otherpurportedlycorroborativeevidence
wasasharmfulasitwashelpful.Forexample,investigators
did find handcuffs and leg irons in Averys bedroom, but
notasinglescratchonthewoodenbedpostsasonewould
expect were Halbach handcuffed to the bed as Dassey de
scribed. R. 1923 at 88. Other corroborative evidence sup
portedboththestateandDasseystheoriesoftheevents.For
example,thebleachstainedpantssupportedthestatesver
sion of the story in which Dassey knowingly helped clean
Halbachsbloodfromthegarage,andalsoDasseysversion
of eventsin whichAveryasked anignorantDasseytohelp
clean from the garage floor something that appeared to be
automotive fluid. The district court dismissed many of the
states asserted corroborating details as unhelpful, and we
No.163397 101
need not repeat the district courts explanations. See Dassey

v.Dittmann,201F.Supp.3dat998.
In sum, the investigators promised Dassey freedom and
allianceifhetoldthetruthandallsignssuggestthatDassey
took that promise literally. The pattern of questioning
demonstratesthatthemessagetheinvestigatorsconveyedis
thatthetruthwaswhattheywantedtohear.Whenhede
viated,theytoldhimhewaslyingandwhenhesuccessfully
parroted what they wanted him to say, either because he
successfullyguessedortheinvestigatorshadfedhimthein
formation, they patted him on the back for telling the truth
and told him he would be okay. Dassey, however, had
trouble maintaining a consistent story except when he was
being led stepbystep through the facts, thus confirming
thatthisconfessionemergednotfromhisownfreewill,but
fromthewilloftheinvestigators.
We arequitecognizantthat ourroleinthishabeaspeti
tionislimited.Wehavecataloguedthesepartsoftheconfes
sionnotbecausewemighthavecometoadifferentconclu
sionaboutDasseysguiltorinnocence,butbecausetheyre
flectonthetotalityofthecircumstancesthatthestateappel
late court should have been considering when assessing
whetherDasseysconfessionwasgivenofhisownfreewill.
By ignoring these false assurances and promises, steering,
coaxing,andfactfeeding,thestatecourt,althoughitknewit
must address the totality of the circumstances, failed to ap
ply that rule to these facts. See 28 U.S.C. 2254 (d)(1). The
requirement to view the totality of the circumstances, how
ever,appliestoadultsandminorsalike.See,e.g.,Missouriv.
Seibert,542U.S.600,608(2004).Iftheadmonitiontogiveex
tra care to juveniles confessions means anything, it must
102 No.163397
meanthatacourtmustgiveextrascrutiny to achilds con

fession.Forexample,itmightaskifthisyouthwassuscepti
ble to steering. Was he fed information? Was he someone
whoneededanadultallytoexplaintheconsequencesofhis
Miranda waiver or his confession in general? Did he need
someonetoremindhimnottoguessatanswerstopleasethe
interrogators?Didheneedsomeonetoremindhimthatthe
investigators were police officers with a different agenda
thanhis?HadthestatecourtgivenDasseysconfessionany
ofthisrequiredcare,itsimplycouldnothaveovercomethe
many doubtsthat hisconfessionraisesaboutvoluntariness.
Wehaveshownagainandagainapatternofsteering,coax
ing,factfeedingandcueingfollowedbyrewardingthecor
rect answer, and we urge anyone with doubts about the
voluntariness of Dasseys confession to view the interroga
tionwiththispatterninmind.
BydeterminingthatDassey,underthetotalityofthecir
cumstances,confessedofhisownfreewill,thecourtignored
the clear and convincing weight of the evidence and thus
made an unreasonable determination of the facts. See 28
U.S.C.2254(d)(2).
D. Harmlesserror.
Moreover,becausetheconfessionwasessentiallytheon
ly evidence the State presented against Dassey at trial, we,
likethedistrictcourt,mustconcludethatallowingitsadmis
sioncouldnothavebeenharmlesserror.Specifically,thevi
olation of Dasseys constitutional rights had a substantial
and injurious effect or influence in determining the jurys
verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (in
ternalcitationsomitted).Indeed,asthedistrictcourtpointed
out,Dasseysconfessionwas,asapracticalmatter,theen
No.163397 103
tirety of the case against him. Dassey, 201 F. Supp. 3d at

1006.Despitetheintensityoftheinvestigation,thebrutality
of the crime and the disarray of the premises, no one ever
found a single hair, a drop of blood, a trace of DNA or a
scintillaofphysicalevidencelinkingDasseytothiscrime.
E. Ineffectiveassistanceofcounsel.
Becauseweaffirmthegrantofthewritofhabeascorpus
onthesebases,weneednotmakeadeterminationaboutthe
effective assistance of counsel. We note, however, that
should the government decide to retry Dassey, the issue of
theadmissibilityoftheMay13telephonecallbetweenDas
sey and his mother will require a fresh look to determine
whether it is the fruit, so to speak, of an involuntarily
obtainedconfessionaltree.
III.
TeresaHalbachsfamilyhasnowgrievedfortheirpainful
lossthroughseveraltrials,multiplestatecourtappeals,state
postconvictionreliefappeals,andnowthehabeasproceed
ings in federal court. If only this court, through its many
words,couldrewritethetragictaleofthatfinaldayofTere
sas life. But of course, we cannot. Dassey has successfully
demonstratedthatthestatecourtdecisionresultedinadeci
sionthatwascontraryto,orinvolvedanunreasonableap
plication of, clearly established Federal law, as determined
bytheSupremeCourtoftheUnitedStatesandthatresult
edinadecisionthatwasbasedonanunreasonabledetermi
nation of the facts in light of the evidence presented in the
State court proceeding. 28 U.S.C. 2254(d)(1) and (2). The
decision of the district court is AFFIRMED in all respects.
The writof habeas corpus isGRANTED unless the State of
104 No.163397
Wisconsin elects to retry Dassey within 90 days of issuance

ofthiscourtsfinalmandate,oroftheSupremeCourtsfinal
mandate.
No.163397 105
HAMILTON,CircuitJudge,dissenting.BrendanDasseycon
fessedonvideotapethatherapedTeresaHalbach,helpedhis
unclemurderher,andthenburnedherbodyinafirepitathis
unclesjunkyard.AjuryconvictedDasseyofthosecrimes,and
the Wisconsin state courts have upheld the convictions. On
federal habeas corpus review, however, Dassey has per
suadedthedistrictcourtandnowmycolleaguesthathiscon
fessionwasinvoluntaryandhisconvictionsinvalid.Irespect
fullydissent.Weshouldreverse.
TodecidewhetherDasseysconfessionwasvoluntary,the
statecourtsappliedthecorrectbutgeneralandevenindeter
minatetotalityofthecircumstancestest.SeeWithrowv.Wil
liams,507U.S.680,69394(1993);Gallegosv.Colorado,370U.S.
49,55(1962).TheWisconsinCourtofAppealsupheldthetrial
courts finding that Dasseys confession was voluntary in a
succinctpercuriamopinionthatrejectedthatclaimintwopar
agraphs. That was permissible. While the majority would
havepreferredamorenuancedanddetaileddiscussionofthe
circumstancessurroundingDasseysconfession,theAntiter
rorismandEffectiveDeathPenaltyAct(AEDPA)of1996does
notauthorizefederalcourtstositinjudgmentofthelengthof
statecourtopinions.Rather,asHarringtonv.Richterteaches,
evenunexplaineddecisionsbystatecourtsareentitledtodef
erence under AEDPA. See 562 U.S. 86, 98 (2011) (Where a
statecourtsdecisionisunaccompaniedbyanexplanation,the
habeaspetitionersburdenstillmustbemetbyshowingthere
wasnoreasonablebasisforthestatecourt todenyrelief.).
UnderAEDPAandRichter,reliefmustbedeniedifareasona
blecourtcouldhavereachedthestatecourtsconclusion.Id.
106 No.163397
Habeasrelieffromstatecourtconvictionsisrare,reserved
forthoseunusualcaseswherestatecourtsabandontheirob
ligationtoenforcefederalconstitutionallaw.Seeid.at10203
(If[theAEDPA]standardisdifficulttomeet,thatisbecause
itwasmeanttobe.Section2254(d)reflectstheviewthat
habeascorpusisaguardagainstextrememalfunctionsinthe
state criminal justice systems, not a substitute for ordinary
errorcorrectionthroughappeal.)(citationomitted).NoSu
premeCourtprecedentcompelsreliefforDassey.Hispetition
shouldbedenied.
RatherthanshowhowSupremeCourtprecedentrequires
habeas relief, the majority observes: By surveying the Su
preme Court cases on the voluntariness of juvenile confes
sionsonecanseehowmuchtheuniquecharacteristicsofboth
thedefendantandtheinterrogationplayintotheassessment
of voluntariness. Ante at 36. For this reason, the majority
writes,othercasescanonlyactasbroadguideposts.Id.
That is exactly right, but that is also why we should re
verse. Without a compelling showing based on Supreme
Court precedent, habeas relief must be denied. The more a
statecourtsdecisiondependsonweighingahostoffactors
aspartofthetotalityofthecircumstances,theharderitisto
showthatthedecisionwascontraryto,orinvolvedanun
reasonableapplicationof,clearlyestablishedFederallaw.28
U.S.C.2254(d)(1).Applyingsuchabroadstandardtoapar
ticularcaseleavessubstantialroomforjudgment.Themore
generaltherule,themoreleewaycourtshaveinreachingout
comes in casebycase determinations. Yarborough v. Al
varado,541U.S.652,664(2004)(reversinggrantofhabeaspe
titionwheresimilarfactsensitivestandardgovernedwhether
No.163397 107
seventeenyearoldpetitionerhadbeenincustodyduring
interrogationinwhichheconfessed).
Even if we were reviewing the admissibility of Dasseys
confession de novo, great caution would be warranted. The
majoritys decision breaks new ground and poses troubling
questions for police and prosecutors. It calls into question
standardinterrogationtechniquesthatcourtshaveroutinely
foundpermissible,evenincasesinvolvingjuveniles.
ThiswasarelativelybriefandlowkeyinterviewofaMi
randized subject who was not mistreated or threatened,
whose creature comforts were satisfied, and whose parent
consented.Ifsuchagentleinterrogationcanbetreatedasun
constitutionallycoercive,whatshouldpolicedothenexttime
an investigation leads to a teenager with some intellectual
challenges?Fewwrongdoersareeagertoownuptocrimesas
seriousasDasseys.TheConstitutionisnotoffendedbysuch
policetacticsasencouragingthesubjecttotellthetruth,bluff
ing about what the police already know, or confronting the
subject with what the police know from physical evidence
andwiththeinternalcontradictionsandimprobabilitiesinhis
story.Todaysdecisionwillmakesomepoliceinvestigations
considerablymoredifficult,withlittlegainedintermsofjus
tice.
I. TheTotalityoftheCircumstances
My colleagues describe the critical March 1, 2006 inter
view of Dassey as intimidating and anxiety producing.
Anteat83.IsuspectthesourceofanyanxietyDasseyfeltwas
hisguilt,notthecircumstancesofarelativelygentleandnon
coerciveinterview.Themajorityfocusesinpainstakingdetail
onafewfactorsthatweighinfavoroffindingthatDasseys
108 No.163397
confessionwasnotvoluntary.Manyotherfactorsweighinfa
voroffindingitwasvoluntary.Thecircumstancesthathave
mostconcernedcourtsandthathavecontributedmosttovol
untariness jurisprudencesuch as physical abuse, threaten
ingbehavior,orprolongedquestioningweresimplyabsent
here.
Considerthesecircumstances:theinvestigatorsdidnotin
itiallyconsiderDasseyasuspectinthemurder.Still,theyhad
goodreasontothinkthatheknewmoreabouthisuncleSte
venAverysinvolvementinTeresaHalbachsdeaththanDas
seyhadtoldthemthusfar.TwodaysbeforethecriticalMarch
1interview,Dasseyhadtoldinvestigatorsthathesawhuman
body partstoes, a hand, a forehead, and a stomachin
AverysbonfirethepreviousHalloween.Dasseyhadalsosaid
thatAverytoldhimhestabbedTeresa.Inaseparateconver
sationthatevening,Dasseyhadtoldtheinvestigatorsthathe
helpedAverycleanadarkredstainonhisgaragefloor.
OnMarch1,theinvestigatorsobtainedconsentfromDas
seysmothertointerviewhimonceagain.TheyreadMiranda
warningstoDassey,drovehimtoalocalsheriffsoffice,and
remindedhimabouttheMirandawarningsoncetheyarrived.
They offered him snacks, beverages, and restroom breaks.
During the interview, Dassey sat comfortably on a sofa. He
exhibited no signs of physical distress. The investigators
spokeinmeasuredtones.TheydidnotthreatenDassey,nor
didtheyuseintimidatingorcoercivelanguage.Theycoaxed
andencouragedhimtotellthetruth.TheymadeDasseyno
specificguarantees.Infact,theytoldhimattheoutset:We
cantmakeanypromises.
Theinterviewlastedaboutthreehoursintotal.Fiftyfour
minutesintotheconversation,Dasseytoldtheofficersthathe
No.163397 109
raped Teresa Halbach the day she was murdered. Fourteen

minutes later, Dassey admitted, in response to a relatively
openendedquestion,thathecutTeresasthroat.Theinvesti
gators soon took a thirtyminute break and then continued
questioningDasseyforalittleoveranhour.Attheconclusion
oftheinterview,theinvestigatorsinformedDasseythatthey
wereplacinghimunderarrest.
Attimes,theinvestigatorschallengedDasseywhenhisac
countseemedincomplete,didnotmakesense,orconflicted
withphysicalevidence.Atotherpoints,theinvestigatorsde
liberatelymisledDasseybytellinghimtheyknewmorethan
theyactuallydidorbysuggestingfalsefactstoseeifhewould
agreetothem.(Hedidnot.)Thoseareroutinetechniquesin
policeinterrogation.Theydonottransformavoluntarycon
fessionintoanunconstitutionalone.Theinvestigatorsalsore
peatedlyencouragedDasseytotellthetruth,andtheyoffered
vague assurances that it would be better for him if he did.
Thosearealsoroutinetechniques.Theyarenotfraudulentor
coercive. At no point did the investigators make the sort of
specificfalsepromisesthatcanrenderaconfessioninvolun
tary.Therecordheredoesnotshowpolicetacticssooffen
sive to a civilized system of justice that they must be con
demned under the Due Process Clause of the Fourteenth
Amendment.Seeanteat30,quotingMillerv.Fenton,474U.S.
104,109(1985).
II. AEDPAandDeferencetoStateCourtJudgments
A. TheDeparturefromDeference
TheAntiterrorismandEffectiveDeathPenaltyActof1996
amendedthefederalhabeascorpusstatutetoprovidethatan
application for a writ of habeas corpus shall not be
110 No.163397
grantedwithrespecttoanyclaimthatwasadjudicatedonthe
merits in State court proceedings unless the adjudication of
theclaim(1)resultedinadecisionthatwascontraryto,or
involvedanunreasonableapplicationof,clearlyestablished
Federal law, as determined by the Supreme Court or (2)
resultedinadecisionthatwasbasedonanunreasonablede
termination of the facts . 28 U.S.C. 2254(d). It is not
enoughthatafederalcourtmighthavedecidedthecasedif
ferentlyinthefirstinstance.Rather,thefederalcourtmustbe
confidentthatthedecisionofthestatecourtwassobeyond
thepaleastoconstituteanerrorwellunderstoodandcom
prehendedinexistinglawbeyondanypossibilityforfairminded
disagreement.Richter,562U.S.at103(emphasisadded).
Mycolleaguesinsist,repeatedly,thattheyhavekeptthe
strictconstraintsoftheAEDPAforefrontintheirminds.E.g.,
anteat27.YetnoSupremeCourtcase,nocasedecidedinthis
circuit,andindeednocasecitedbythepartiesorthemajority
hasfoundaconfessioninvoluntaryonfactsresemblingthese,
evenwherethesubjectisajuvenile.
NeverbeforehastheSupremeCourtorthiscourtsignaled
thatpolicebluffsaboutwhattheyknowmayrenderaconfes
sion involuntary. Neither the Supreme Court nor this court
haseverheld,asthemajorityseemstobelieve,thataninves
tigatorsvagueassurancesaboutthevalueoftellingthetruth
mayamounttofraudulentpromisesofleniency.Norhavewe
heldthatsuchstatementsmustbeviewedfromthesubjective
perspectiveofthesuspect,nomatterhowdistortedhisper
spectivemaybe.ThemajorityworriesthatDasseymayhave
taken as literal an investigators advice that honesty is the
onlythingthatwillsetyoufree,transformingthatbiblical
phraseintotheexactkindofpromiseofleniencythatcourts
No.163397 111
generallyfindcoercive.Anteat50;seeJohn8:32.Themajor
ityreachesthisconclusioninspiteofourlongrecognitionthat
thelawpermitsthepolicetopressureandcajole,concealma
terialfacts,andactivelymislead.UnitedStatesv.Rutledge,900
F.2d1127,1131(7thCir.1990).
InonetellingdeparturefromAEDPAdeference,thema
joritycitesalawreviewarticletoobserve:Expertsonconfes
sionshavenotedthatthoughcourtsarereluctanttofindthat
policeofficershaveoverwhelmedachildswillbyrepeatedly
admonishingthechildtotellthetruth,manychildrenwill
eventually hear tell the truth as, tell me what I want to
hear. Ante at 5556 (citation omitted). The majority then
suggests that Dassey found the truth either by stumbling
uponitorbyusingtheinformationtheinvestigatorshadfed
him,andassertsboldlythatitisimpossibletoreadorview
DasseysinterrogationandhaveanyconfidencethatDasseys
confessionwastheproductofhisownfreewillratherthanhis
will being overborne. Ante at 56. The majority invites the
reader to scrutinize Dasseys confession with this key in
hand.
I read (and see) the evidence quite differently: Dasseys
confessionappearstohavebeentheproductofaguiltycon
science, coaxed rather gently from him with standard, non
coercive investigative techniques. Even assuming, however,
thatthemajoritysinterpretationisplausible,ourjobasafed
eralcourtreviewingastateconvictionunder2254(d)isnot
toconsultscholarlyliteratureinsearchofnewbestpractices.
Ournarrowertaskistodeterminewhetherthestatecourt
decisionwasbasedeitheronanunreasonableapplicationof
clearly established law as handed down by the Supreme
Courtoronanunreasonableviewofthefacts.Apartfromthe
112 No.163397
uncontroversialobservationthatjuvenileconfessionsshould
betreatedwithcare,seeJ.D.B.v.NorthCarolina,564U.S.261,
269 (2011) (direct appeal of Miranda custody decision), the
majority cites no Supreme Court authority in support of its
interpretivekey.1
B. DeferenceorCritiquingOpinions?
Earlyinitsopinion,themajoritywritesthatthestateap
pellatecourtdidnotidentifythecorrecttestatallanddidnot
applyitcorrectly.Anteat23.Thecriticismismisplaced.The
statecourtcorrectlyrecognizedthat(1)aconfessionsvolun
tariness turns on the totality of the circumstances and (2)
theanalysisinvolvesabalancingofthedefendantspersonal
characteristicsagainstthepolicepressuresusedtoinducethe
statements.ThatstandardfitscomfortablywiththeSupreme

1Themajoritysupportstheneedforspecialcareinjuvenileconfession
casesbycitingstudiesofexonerateddefendantsshowingthatfalsecon
fessionsaremorecommonbyjuvenilesandmentallyillorintellectually
deficientsuspects. Anteat 3234. False confessionsare a real phenome
non, and even one is very troubling. Yet we should not conclude from
thesestudiesofexonerateddefendantsthatthereisanepidemicoffalse
confessions.Themorerelevantdenominatorinthefractionisallconfes
sions.Thatnumberisnoteasytoestimate,butwecanestimateaconserva
tivelowerboundaryforit.BureauofJusticeStatisticsreportsonFelony
Defendantsin Large Urban Counties tally violentfelony convictions by
guiltypleainjustthenations75largestcounties.(Themostrecentreport
isBrianA.Reaves,U.S.DeptofJustice,BureauofJusticeStatistics,Felony
Defendants in Large Urban Counties, 2009 Statistical Tables (2013),
https://www.bjs.gov/content/pub/pdf/fdluc09.pdf.) The majoritys statis
ticsreport227demonstrablyfalseconfessionsfrom1989to2016.Fromthe
BJSreports,wecanestimatethereweremorethan1.5millionguiltypleas
toviolentfeloniesoverthatperiod.Soforeveryonedemonstrablyfalse
confession over those years, there were more than 6,500 guilty pleas to
violentfeloniesinjustthose75largestcounties.
No.163397 113
CourtsexplanationinWithrow:courtslooktothetotalityof
circumstancestodeterminewhetheraconfessionwasvolun
tary.Thosepotentialcircumstancesincludethecrucialele
mentofpolicecoercion;thelengthoftheinterrogation;itslo
cation; its continuity; the defendants maturity; education;
physicalcondition;andmentalhealth.Theyalsoincludethe
failureofpolicetoadvisethedefendantofhisrightstoremain
silentandtohavecounselpresentduringcustodialinterroga
tion.507U.S.at69394(citationsomitted).Thisfactsensitive
balancingtestapplieswhetherthesubjectisamatureadultor
anintellectuallychallengedhighschoolstudent.SeeGilbertv.
Merchant,488F.3d780,793(7thCir.2007)([I]tisthetotality
ofthecircumstancesunderlyingajuvenileconfession,rather
thanthepresenceorabsenceofasinglecircumstance,thatde
termines whether or not the confession should be deemed
voluntary.)(collectingcases).
ThemajoritysrealconcernseemstobethattheWisconsin
CourtofAppealsonlypaidlipservicetothecorrectstandard
but did not apply it seriously. The majority writes that the
state appellate court listed Dasseys age, education and IQ,
butitneverevaluatedthosefactorstodeterminewhether
theyaffectedthevoluntarinessofDasseysconfession.Ante
at28.Likewise,themajoritywritesthatthestatecourtana
lyzedsomeoftheinvestigatorsinterrogationtechniques,but
itneverevaluatedorassessedhowthosetechniquesaffected
thevoluntarinessof[Dasseys]confession.Id.Elsewherethe
majoritycomplainsthatthestateappellatecourtaddressed
thevoluntarinessoftheconfessionintwoshortparagraphs.
Anteat48.Themajorityalsowritesthatthelessastatecourt
says,thelessafederalcourtcanascertainthatthestateactu
allyappliedatotalityofthecircumstancesevaluation.Ante
at50.Themajorityseemstoexpectlonger,moredetailed,and
114 No.163397
perhaps more anguished opinions from the state courts in

suchcases.Thoseexpectationsdonotcallforhabeasrelief.
Under2254(d),federalcourtsdonotjudgethelengthor
brevity of opinions issued by state courts with dockets far
morecrowdedthanours.Federalcourtshavenoauthority
to impose mandatory opinionwriting standards on state
courts.Thecaseloadsshoulderedbymanystateappellate
courtsareveryheavy,andtheopinionsissuedbythesecourts
mustbereadwiththatfactorinmind.Johnsonv.Williams,568
U.S.,,133S.Ct.1088,1092,109596(2013)(footnoteomit
ted) (reversing habeas relief; federal court erred by finding
thatstatecourtoverlookedpetitionersfederalclaimandby
thenreviewingthatclaimdenovo);seealsoWrightv.Secretary
for Dept of Corrections, 278 F.3d 1245, 1255 (11th Cir. 2002)
(Tellingstatecourtswhenandhowtowriteopinionstoac
company their decisions is no way to promote comity.).
Wherethelaststatecourttoreviewaclaimreachesadecision
andoffersreasons,itsdecisionisentitledtothesamedefer
encewhetherthecourtstatesitsreasonssuccinctlyinanun
publishedorderorexpoundsatlengthinalandmarkopinion.
AEDPAdeferencestillapplieswhenastatecourtoffersno
reasons,faciallydefectivereasons,orincompletereasonsfor
itsdecision.Whereastatecourtprovidesnoexplanation,the
habeaspetitionersburdenstillmustbemetbyshowingthere
was no reasonable basis for the state court to deny relief.
Richter,562U.S.at98.Under2254(d),ahabeascourtmust
determinewhatargumentsortheoriessupportedorcould
havesupported,thestatecourtsdecision;andthenitmustask
whetheritispossiblefairmindedjuristscoulddisagreethat
thoseargumentsortheoriesareinconsistentwiththeholding
inapriordecisionofthisCourt.Id.at102(emphasisadded);
No.163397 115
seealsoWilliams,133S.Ct.at 1094 (Although Richteritself

concernedastatecourtorderthatdidnotaddressanyofthe
defendants claims, we see no reason why the Richter pre
sumptionshould not alsoapply when astatecourt opinion
addressessomebutnotallofadefendantsclaims.).
Similarly,evenwherethelaststatecourttorenderadeci
sion offered a faulty reason for its decision, although we
would no longer attach significance to the state courts ex
pressedreasons,wewouldstillapplyAEDPAdeferencetothe
judgment,turningtotheremainderofthestaterecord,in
cluding explanations offered by lower courts. Whatley v.
Zatecky, 833 F.3d 762, 775 (7th Cir. 2016) (citation omitted);
Bradyv.Pfister,711F.3d818,827(7thCir.2013)(Astatecourt
couldwritethatitrejectedadefendantsclaimbecauseTarot
cardsdictatedthatresult,butitsdecisionmightnonetheless
beasoundone.).
And by the reasoning of Richter and Williams, deference
likewiseapplieswhereastatecourtgavesomereasonsfor
anoutcomewithoutnecessarilydisplayingallofitsreason
ing.Hansonv.Beth,738F.3d158,164(7thCir.2013);seealso
Jardinev.Dittmann,658F.3d772,777(7thCir.2011)(percu
riam)(Thiscourtmustfillanygapsinthestatecourtsdis
cussion by asking what theories could have supported the
statecourtsconclusion.)(citationomitted).
SinceAEDPAdeferenceapplieswhenastatecourtoffers
noreasons,faultyreasons,orincompletereasons,suchdefer
encemustsurelybeduewhere,ashere,thestatecourtoffers
aterseexplanationforareasonableresult.Thisisnottosug
gestthatastatecourtmayevadehabeasreviewbymerelyin
cantingthe correcttest(in thiscase, totality ofthecircum
stances).Themajorityiscorrectinsayingthatifacourtcan
116 No.163397
merely state the generic Supreme Court rule without any

analysis,thennofederalcourtcouldeverfindthatadecision
involvedanunreasonableapplicationofclearlyestablished
Federallaw.Anteat22(citationomitted).AEDPAreviewis
deferentialbutnottoothless.Federalcourtsarechargedwith
reviewingstatecourtrecordstoassessthereasonablenessof
statecourtdecisions.Wegrantreliefinasmallbutnontrivial
portionofcases,atleastattheappellatelevel.Theissueisnot
whetherthestatecourtmighthaveoverlookedsomethingbut
whetherthebottomlineresultisbeyondanypossibilityfor
fairmindeddisagreement.Richter,562U.S.at103.
Whatfederalcourtsmaynotdoisinferthatadecisionwas
unreasonablebasedonthelackofexplanation.Asareaderof
judicialopinions,Itoowouldhaveappreciatedmorecontext
and development in the opinion of the Wisconsin Court of
Appeals.Icannot,however,holdthatuseofDasseysconfes
sionwasunconstitutionalmerelybecausethestatecourtdid
notsaymoreaboutalltherelevantfactors.Theoverallmixof
relevantfactorsheresimplydoesnotdictateafindingthathis
confessionwasinvoluntary.
III. DoctrinalDevelopments
Showing a lack of the required deference to the state
courts,themajoritybreaksnewdoctrinalgroundinthreesig
nificantrespects:redefiningwhatcountsasafalsepromiseof
leniency,relyingonpolicebluffsintheinterrogationtofind
theconfessionwasinvoluntary,anddepartingfromaseries
No.163397 117
of our courts habeas cases denying relief to juveniles who

weresubjectedtomuchmorepressurethanDasseywas.
First,whatcountsasafalsepromiseofleniency?Thema
jorityopinionlosessightofthedifferencebetweengeneralas
surancesofbettertreatment,whicharepermittedevenwhen
madetojuveniles,andfactuallyfalsepromises,whicharenot.
We have long recognized that a false promise of leniency
mayrenderastatementinvoluntarybutthatpolicetactics
short of the false promise are usually permissible. United
Statesv.Villalpando,588F.3d1124,1128(7thCir.2009).InVil
lalpando, we rejected a claim that a police detective made a
falsepromiseofleniencywheresheofferedtogotobatfor
the defendant and said she would sit down with law en
forcementandprobationtoworkthisout,andwhereshe
alsoremarked,wedonthavetochargeyou.Id.at1129.
Similarly,inUnitedStatesv.Rutledge,apoliceofficerasked
thedefendantwhetherhewouldbewillingtogiveapostar
reststatement.Theofficeradvisedthedefendantthatallco
operationishelpful.900F.2dat1128.Wenotedthatonein
terpretationoftheofficersstatementisthatitpromised
anetbenefitfromspillingthebeans,andiftheofficermade
suchapromisewithoutintendingtokeepit,thestatement
was fraudulent. Id. at 113031 (emphasis omitted). But it
wasthesortofminorfraudthatthecasesallow.Farfrommak
ingthepoliceafiduciaryofthesuspect,thelawpermitsthe
policetopressureandcajole,concealmaterialfacts,andac
tivelymisleadalluptolimitsnotexceededinthatcase.Id.
at1131;seealsoFarev.MichaelC.,442U.S.707,727(1979)(po
licedidindeedindicatethatacooperativeattitudewouldbe
118 No.163397
to[sixteenyearolds]benefit,buttheirremarksinthisre
gardwerefarfromthreateningorcoercive).
ThemajorityacknowledgesthatinDasseyscase,thein
vestigators never made the type of explicit and specific
promise of leniency that an adult of ordinary intelligence
mightunderstandasapromise.Anteat83.Thatsright.The
investigatorsstatementswerecomparabletothosepermitted
inVillalpandoandRutledge.Theinvestigatorsmadevagueas
surances that honest cooperation would make things easier
forDasseyifthisgoestotrial;thatthehonestpersonisthe
onewhosgonnagetabetterdealoutofeverything;andthat
honestyistheonlythingthatwillsetyoufree.Oneinvesti
gatorsaidattheverybeginningoftheinterview,beforeDas
seyhadconfessedtoanything,thatfromwhatImseeing
Im thinking youre all right. OK, you dont have to worry
aboutthings.Buttheotherthencautioned:Wecantmake
anypromisesbutwellstandbehindyounomatterwhatyou
did.
At no point did the investigators assure Dassey that he
wouldescapeprosecutionorreceivesomeotherspecificben
efitifhecooperatedorconfessed.Cf.Sharpv.Rohling,793F.3d
1216,1235(10thCir.2015)(subjectswillwasoverbornewhere
detectivepromisedhershewouldnotgotojailifsheadmitted
toherparticipationincrime);Henryv.Kernan,197F.3d1021,
1027(9thCir.1999)(subjectswillwasoverbornewhereofficer
No.163397 119
falselyinformedhimthatwhathesaidcantbeusedagainst
yourightnow).2
The majority insists, however, that whether police have
madeanimpermissiblefalsepromiseofleniency(orofany
thing else) depends on the subjective perception of the sus
pect, no matter how distorted or inaccurate his perception
mightbe.Thus,toDasseywithhisborderlineIQandsug
gestiblepersonalitytheinvestigatorsvagueassuranceshad
inthemajoritysviewthesameeffectasafraudulentprom
ise.Anteat83.
TheSupremeCourtstotality ofthe circumstances test
takesaccountofthesubjectivecharacteristicsofthedefendant
(e.g.,hisage,health,andeducation).YetnoSupremeCourt
casehasheldthataconfessionshouldbedeemedinvoluntary
ifthesubjectbelievedhoweverimprobablyorbaselessly
thathehadbeenpromisedagetoutofjailfreecard.Nocase
requiresthereviewingcourttodisregardwhatpoliceactually
said(onavideorecording,no less)infavorofwhatthe de
fendant,withthebenefitoftime,hindsight,andsavvycoun
sel,sayshethoughtthepolicesaid.Ataminimum,reasonable
juristscoulddisagreewhethertheabstractassurancesbythe

2
Inoralargument,weaskedDasseyscounseltoidentifyacaseany
caseinwhichahabeaspetitionerwasgrantedreliefduetopolicerepre
sentations similar to those made here. Counsel cited A.M. v. Butler, 360
F.3d787(7thCir.2004),asplitpaneldecisionthatisreadilydistinguisha
bleandillustrateshowmuchofastretchDasseysclaimis.InA.M.,the
subjectwasjustelevenyearsold,andhewasnotproperlyMirandized.Id.
at793.Hetestifiedattrialthattheinterviewingofficermadehimaspecific
false promise: that if he confessed to beating and stabbing to death his
elderlyneighbor,Godandthepolicewouldforgivehimandhecouldgo
home in time for his brothers birthday party. Id. at 794. Investigators
madenosuchfalsepromisetoDassey.
120 No.163397
investigatorsherewere,incontext,falseandfraudulent.That
aloneshoulddefeatanyclaimforhabeasrelief.
Evenifweweretoapproachthequestiondenovo,thereis
goodreasontoreviewanyallegedpromisesbyinvestigators
fromanobjectivepointofview,atleastwhenwehavehard
evidenceofwhatwassaid(andwhatwasnot).Peoplewho
commit brutal crimes of the sort Dassey was convicted of
committingtendtobemaladjustedanddetachedfromsocial
norms.Itshouldcomeasnosurprisethatajuvenilewhohelps
torapeahelplessvictim,capsoffthatexperiencebywatching
televisionandchattingwithhisuncle,andthenhelpstomur
dertheirvictim,asDasseysaidhedid,liveswithadistorted
worldview.Dasseyssubjectiveimpressionofwhatpolicetold
himshouldnotbedecisive.3
Second,themajoritysuggeststhatDasseywasatgreater
riskofbeingmisledbytheinvestigatorsvaguemoralsupport

3
Dassey brought his involuntary confession claim under both 28
U.S.C.2254(d)(1),decisionscontrarytoorunreasonablyapplyingclearly
establishedfederallaw,and(d)(2),decisionsbasedonunreasonablefac
tualdeterminations.ThemajorityandIbothfocusontheSupremeCourts
totality of the circumstances test and related doctrinal considerations
under(d)(1).Themajorityalsosaysinseveralplacesthatthestatecourts
madeunreasonablefactualfindingsunder(d)(2)butacknowledgesthat
theanalysesunder(d)(1)and(2)overlaphere.Anteat29.Thereisnodis
puteaboutwhattheinvestigatorsactuallysaid,andthediscussioninthis
sectionshowswhytheclaimshouldalsofailunder(d)(2).Thestatecourts
findingthattheinvestigatorsmadenofalsepromisesisbestunderstood
asafindingthattheymadenolegallyrelevantfalsepromises,i.e.,nospe
cificfalsepromisesofleniency,asdistinctfromvagueassurancesthatco
operationwouldbeinDasseysbestinterests.Dasseyhasnotshownby
clear and convincing evidence that the finding was wrong. See
2254(e)(1).
No.163397 121
because they repeatedly told him that they already knew

whathappened.Asthemajorityconstruesthesestatements,
Dasseycouldhavebelievedthatsolongashewashonest
nothingbadwouldhappentohim.Seeanteat84.Themajor
itycitesnocasefromtheSupremeCourtoranyothercourt
holding that such bluffing by police about what they know
could render a confession involuntary. On the contrary, we
haverecognizedthataliethatrelatestothesuspectsconnec
tiontothecrimeistheleastlikelytorenderaconfessioninvol
untary. United States v. Ceballos, 302 F.3d 679, 695 (7th Cir.
2002) (emphasis added) (citation omitted); see also United
States v. Sturdivant, 796 F.3d 690, 697 (7th Cir. 2015) ([W]e
have repeatedly held that a lawenforcement agent may ac
tivelymisleadadefendantinordertoobtainaconfession,so
longasarationaldecision remainspossible.)(alterationin
original),quotingConnerv.McBride,375F.3d643,653(7thCir.
2004).
Third, in concluding that Dasseys confession was invol
untary, the majority effectively departs from a string of our
habeasdecisionsinvolvingconfessionsbyjuvenileswhowere
deniedreliefdespitebeingsubjectedtofargreaterpressures
thanDasseywas.
Forinstance,inEtherlyv.Davis,619F.3d654,657(7thCir.
2010),wereversedhabeasreliefforapetitionerwithnoprior
criminaljusticeexperiencewhoatagefifteenwastakenfrom
his home before dawn and interviewed by police several
hours later without the consent, let alone the presence, of a
parentorotherfriendlyadult.LikeDassey,Etherlyhadbor
122 No.163397
derlineintellectualabilities;liketheinvestigatorshere,thepo
liceinEtherlyassuredthejuvenilethatitwouldgobetterfor
himincourtifhecooperated.Id.at658.
InCarterv.Thompson,690F.3d837,839(7thCir.2012),we
denied relief to a habeas petitioner who at age sixteen en
duredaninterrogationlastingfiftyfivehoursintotal.During
gapsintheinterrogation,thepetitionersleptonabench,with
outapillow,ablanket,orachangeofclothes.Id.at841;see
alsoMurdockv.Dorethy,846F.3d203,210(7thCir.2017)(deny
ing relief to sixteenyearold who was interrogated over
sevenhourperiod);Gilbert,488F.3dat78486(denyingrelief
tofifteenyearoldwhowaskeptfromhismotherandinter
rogatedoverninehourperiod);Hardawayv.Young,302F.3d
757, 766 (7th Cir. 2002) (denying relief to fourteenyearold
who was interviewed over sixteenhour period and aban
donedforlengthyintervalsininterrogationroom).
Themajoritydescribesthesecasesbutmakesnorealeffort
toreconcilethemwiththereliefitgrantsDassey.Instead,it
criticizestheWisconsinCourtofAppealsforfailingtoelabo
rate on all the factors the majority considers important. See
anteat4041.Asexplainedabove,2254(d)doesnotauthor
izefederalcourtstocritiquestatecourtopinionssoclosely.It
is enough that the state court identified the correct legal
standardandapplieditreasonablytothefactsofthecase.Just
aspoliceinvestigatorswillbeleftscratchingtheirheadsafter
thisdecision,stateandfederalcourtswillbeflummoxedas
No.163397 123
theyattempttoreconcileourgrantofhabeasrelieftoDassey
withthelineofcasespointingtheotherway.
IV. TheDetailsofDasseysConfession
Having replaced deference to the state court with what
amountstodenovoreview,andhavingredefinedwhatcounts
asafalsepromiseofleniency,themajorityevaluatesDasseys
confession in the light most favorable to him. The majority
opinionhighlightsthemomentswhenDasseyseemedmost
hesitantorambivalent.
Ihavenoquarrelwiththemajoritysconsiderationofthose
moments.WeneedtoconsiderDasseysstrongestarguments
aswellasthestrongestargumentsadvancedbytheState.At
a few points, the investigators questions were so assertive
andleadingthatitisdifficulttotellwhetherDasseymadean
honestattemptatatruthfulanswerorsimplyofferedupthe
answerhebelievedtheinvestigatorswerefishingfor.
A good example: the investigators believed that Teresa
Halbachhadbeenshotinthehead,adetailthathadnotbeen
reportedinthemedia.(Aburntfragmentofherskullrecov
eredfromthefirepithadtracesofleadonit.)IfDasseyknew
thatTeresahadbeenshotinthehead,thatknowledgewould
tendtocorroboratehisstory.TheinvestigatorsaskedDassey,
[W]hat else did you do? Come on. Something with the
head.Dasseyfloundered,volunteeringthathisuncleAvery
cutoffsomeofTeresashairandpunchedherintheheadand
that heDasseyslit Teresas throat. Apparently exasper
ated,oneinvestigatorsaid:Allright,Imjustgonnacomeout
andaskyou.Whoshotherinthehead?Averydid,Dassey
replied,addingthathedidnotvolunteertheinformationbe
causehecouldntthinkofit.Itsreasonabletobeskeptical
124 No.163397
aboutDasseysresponsetosuchaleading question,at least

takingtheresponseinisolation.
ButforeverypointwhenDasseyseemeduncertainorcon
fused,atmanyotherpointsDasseygavespecificandincrim
inating answers to openended questions. Most important,
Dasseyvolunteeredspecificandincriminatingdetailsabout
whathedid,whathesaw,whatheheard,andevenwhathe
smelled.
Early in the interview, the investigators asked Dassey
what Avery told him and showed him after he arrived at
Averystrailer.Dasseysaid:Heshowedmetheknifeandthe
rope.TheythenaskedDasseywherehesawTeresa.Dassey
saidshewaslyingdeadinthebackofherjeepandthatAvery
toldhimhestabbedher.TheyaskedwhyAveryhadinvited
Dasseyover.Dasseysaid,Probablytogetridofthebody.
When the investigators asked what happened next, Dassey
admittedthathehelpedhisunclemoveTeresasbodytothe
burnpit.WhentheyaskedDasseytodescribeTeresasinju
ries,hesaidshehadbeenstabbedinherstomach,adetailhe
repeated several times. (The condition of Teresas remains
madeitimpossibletoconfirmorrefutethatfact.)
TheinvestigatorssuspectedDasseyhadleftoutsomeim
portant information. They asked how Dassey knew Teresa
wasalreadydeadwhenhesawherinthejeep.Dasseyvolun
teeredthatheheardscreamingwhileridinghisbikeoutside.
HethenadmittedthatheenteredAverystrailerandsawTe
resa. He said that Teresa was handcuffed to Averys bed.
When the investigators asked Dassey what Avery told him,
Dassey said: That he never got some of that stuff so he
wantedtogetsome,addingthatAverywantedtof***her
sohard.
No.163397 125
Whileittookmorethanalittlecoaxingfromtheinvestiga
torsbeforeDasseyadmittedthathetoorapedTeresa,Dassey
soon provided quite specific details about his role in the
crime.HesaidthatTeresabeggedhimtodotherightthing;
that Avery, conversely, praised him for doing a good job;
thathehelpedAverytieupTeresa;andthatheslitherthroat
andcutherhair.Dasseydescribedthebrutalcremation,re
callinghowheandAverycarriedTeresasbodytotheburnpit
andcoveredherwithbranchesandtires.
WhentheinvestigatorsaskedDasseyhowheandAvery
cleanedthecrimescene,herecountedtheirefforts:Wethrew
gason[apoolofblood]sohecouldgetitoff.Thenhetried
paintthinnerandthenhewenttobleachtogetitoffand
hewentlikehewassprayingit.Ithoughthegotitonthe
flooranditsplasheduponmypants.Theinvestigators
retrieved Dasseys pants from his home. Sure enough, they
werestainedwithbleach.
Inadditiontoansweringopenendedquestionsinspecific
andincriminatingdetail,Dasseyresistedseverallinesofin
quiry.Thosepointsofresistancegavethestatecourtssubstan
tialreasontofindthatDasseyswillwasnotoverborne.Recall
that the investigators were keenly interested in any infor
mationDasseycouldofferabouthowandwhenTeresaHal
bachwasshot.TheyaskedhimhowmanytimesheshotTe
resa.Zero,hereplied.Headdedthathedidnteventouch
the gun, explaining that he had been unable to shoot ever
sincehismothersexboyfriendhadshottheirsickcat.
AfterDasseyadmittedthathecutTeresashairatAverys
urging,theinvestigatorsaskedwhathadbecomeofthehair.
Dassey insisted that he did not know and did not have the
hair. Even when the investigators warned Dassey that they
126 No.163397
wouldfindthehairifhehadkeptit,heinsisted,Idontgot
noneofthehair.
Atanotherpointintheinterview,theinvestigatorsasked
DasseywhetherhesawAveryrapeTeresa.ThreetimesDas
sey said no. They repeatedly asked Dassey whether he and
AveryhadusedwireshanginginthegaragetoharmTeresa;
Dasseyinsistedtheyhadnot.Herejectedtheirsuggestionthat
heandAverymighthavehungTeresafromarafter,evenafter
theinvestigatorspointedoutthattheworstwasoverand
nothinghesaidwouldsurprisethem.
In one of the most direct tests of Dasseys suggestibility,
theinvestigatorstoldhimfalselythatTeresahadatattooon
herstomachandaskedhimifherememberedit.Dasseysaid
no. They pressed Dassey, asking if he disagreed with them.
Dasseyreplied:NobutIdontknowwhereitwas.IfDassey
wereasoverwhelmedbythepolicequestioningasthemajor
ityseemstobelieve,surelyhewouldhavesimplyagreedthat
Teresahadastomachtattooandthathehadkeptherhair
andthathehadhungherfromtherafters,andsoon.
Tobesure,Dasseysconfessionwasnotasmoothandcon
sistentstory.Therewereholesinthenarrative.Dasseywaf
fledandbacktracked.Thesequenceofeventswasnotalways
clear.Themajority,reviewingtheinterviewwithitsdefense
friendly key in hand, takes these inconsistencies as proof
thatDasseywasnotrecountingrealmemoriesbutonlytelling
theinvestigatorswhathebelievedtheywantedtohear.
AsanalternativekeyforreviewingDasseysconfession,
one might consider that the sixteenyearold subject was
wracked by guilt and was finally coming to grips with the
gravityofhiscrimes.Hehadbeenledtodothingssoawful
No.163397 127
that,inthemonthsfollowingthecrimes,hestayedsilentbut
lostfortypoundsandhadfitsofuncontrolledsobbing.
OwninguptowhathedidproveddifficultforDassey,as
it surely would for anyone with a trace of a conscience. He
hadtroublegettingthewordsout.Giventhevagariesofhu
man memory, it is not surprising that some details and se
quenceshadbecomegarbledashereplayedthoseviolentand
grislyimagesoverandoverinhismindforfourmonths.Itis
easytounderstandwhy,bythetimeoftheMarch1interview,
Dasseywasnotsureabouteverythingthathadhappenedand
inwhatorder.
WhileDasseysrecollectionofthesequenceofeventswas
hazy, he remembered some details vividly. He remembered
colors,sounds,andsmells.Herememberedhisunclestand
inginthedoorframeinhiswhiteshirtandredshorts,beck
oninghiminside.HerememberedTeresaHalbach,lyingalive
onhisunclesbedandlaterdeadinthebackofthejeep.He
rememberedherscreams.Herememberedhertellinghimhe
didnothavetorapeherandheshoulddotherightthing.He
remembered her blood pooling on the garage floor. He re
memberedtheodorofherburningflesh.Andheremembered
whyhecommittedthecruelactshedescribed:hewantedto
seehow[sex]felt.
Themajoritywritesthatthelackofphysicalevidencewas
theweakestpartoftheStatescase.Anteat99100.Thephys
icalevidencedoesnotproveordisproveDasseysguiltorthe
accuracyofhisconfession.Still,theStateofferedsubstantial
evidencethattendedtocorroboratesomedetailsofhiscon
fession. Examples include handcuffs and leg irons found in
Averys bedroom (corroborating Dasseys description of Te
128 No.163397
resasrape);acharredshovel,rake,andcarseat(corroborat
ing Dasseys description of the crude cremation of Teresas
body);andastipulationbyafamilyfriendthathesawAvery
andDasseystandingbyabonfireonAveryspropertyonHal
loweennightin2005,thesamenightthatTeresaandherSUV
vanishedaftersheheadedtoanappointmenttotakephoto
graphsatAverysjunkyard.
Wealsoshouldnotlosesightofthemostdamningphysi
cal evidence: the bones of Teresa Halbach, broken and
charred, buried in the ashes of Averys burn pit. The corpus
delictidoesnotpointinexorablytoDassey.Butitisgrimcor
roborationformuchofthestoryhetoldtheinvestigators.
V. Conclusion
All agree that the governing constitutional standard for
the voluntariness of a confession depends on the totality of
thecircumstances.Thestatecourtsrecognizedthatstandard
andapplieditreasonablytothefactsbeforethem.Asinmost
cases on voluntariness of confessions,relevantfactors point
in conflicting directions. A few factors and passages from
Dasseysconfessionsupportthemajoritysviewthatthecon
fessionwasnotvoluntary.Manyotherfactorsandpassages
supportthestatecourtsviewthat,overall,theconfessionwas
voluntary.TheWisconsinCourtofAppealscouldhavebeen
muchmorethoroughinitsdiscussion,butitsconclusionwas
withintheboundsofreason.Itwasnotcontrarytooranun
reasonable application of controlling Supreme Court prece
dent.Weshouldreversethedistrictcourtsgrantofthewrit
ofhabeascorpus.

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Case: 16-3397 Document: 43 Filed: 06/22/2017 Pages: 128

United States Court of Appeals

Averys residence but did not see Halbach. When he re

nothing Id like more than to come over and

Eventually OKellys plan prevailed after he convinced

In thatcall,Dasseyexplained whyhewas confessing (fora

At trial, Dasseys attorneys presented evidence that the

The defense also presented the testimony of a forensic

riousness of the crime, blaming other participants for their

balancing the defendants personal characteristics against

considered coercive when used with adults must not have

of his Fifth Amendment rights, and the consequences of

last state court to rule on the merits of the issue, which in

sonable or that the factual premise was incorrect by clear

seemingly by guessing, or the investigators fed him the in

sessing the voluntariness ofjuvenile confessions. J.D.B., 564

by DNA, juveniles accounted for one third of all false con

5. Cases as guideposts for a voluntariness assess

interrogation are strong factors militating

two of her three confessions, and her confession occurred

Unlike in the cases above, where the state court suffi

quiring a court to consider the totality of the circumstances

The dissent accuses us of redefining what counts as a

mean that a state court may forsake it completely, and it

370 U.S. at 55; Hardaway,302F.3dat765(notingthatabsence

tell thetruthas,tell mewhatI want to hear. KennethJ.

ting serious here now, OK? (Brendan nods

The state presents these changes as a normal part of a

parts of the story are out of order, and describing several

Wiegert: OK. So he choked her after you

view by feeding Dassey the information that Halbach was

Fassbender: He made you do something to

This example also reveals the power that the false as

Fassbender: Its impossible. You took her out

R. 1925 at 7779. No reasonable court could read these ex

burning clothes, Fassbender asked, Did he tell ya anything about a, a,

Fassbender: Doyouknowwhethershe had a

Wiegert: And where are those items you

personal effects, and after the investigators cued him, Das

Wiegert: Thats what he said to you?

cially avoidant, introverted and alienated, and that he was

knee in a compassionate and encouraging manner during

I passed? R. 1938 at 1. And when the tester repeated It

R. 1924 at 17. And of course, there was the most direct

Those assurances that they already knew everything,

to do it. Yet as they were walking Dassey down the path,

If, in fact, the state court had looked at those promises,

bring Dasseys answers in line with this evidence. Dasseys

Fassbender: And she was in the back of the

recall her clothes. When he gives a conflicting answer, and

Wiegert: OK, and in the other interview

Brendan: Then he went in, back in there

going when he got there, but of course he did: Fassbender

Finally, it is also true that Dassey ardently resisted any

States case. There was no DNA or other physical evidence

need not repeat the district courts explanations. See Dassey

meanthatacourtmustgiveextrascrutiny to achilds con

tirety of the case against him. Dassey, 201 F. Supp. 3d at

Wisconsin elects to retry Dassey within 90 days of issuance

raped Teresa Halbach the day she was murdered. Fourteen

perhaps more anguished opinions from the state courts in

seealsoWilliams,133S.Ct.at 1094 (Although Richteritself

merely state the generic Supreme Court rule without any

of our courts habeas cases denying relief to juveniles who