Brendan Dassey, the nephew of Making a Murderer subject Steven Avery, just scored a major victory in his fight for justice. On Friday, his 2007 state-court-issued conviction and sentence of life in prison was overturned by a Wisconsin federal court. The Court ordered that Dassey, now 26 years old, be released within 90 days, unless the State of Wisconsin decides to retry him. The State also has the ability to appeal the order. How did this unlikely result happen? And what does it mean for Avery's own conviction?
Last year Netflix released the critically acclaimed documentary series, Making a Murderer, which detailed Avery’s lifelong battle with the criminal justice system. In 2003, he was exonerated by DNA evidence after spending nearly 18 years in prison for a sexual assault he did not commit. Just three years later, a local photographer went missing during her workday with Steven Avery as her last appointment. In 2007, after a turbulent trial, he was found guilty for Theresa Halbach’s rape and murder and was sentenced to life in prison. Avery maintains that he is innocent.
Early on in the trial, Avery’s learning-disabled teen nephew Brendan Dassey provided him an alibi. He was, admittedly, a slow learner with “difficulties in the ‘social aspects of communication’ such as ‘understanding and using nonverbal cues, facial expressions, eye contact, body language, tone of voice.’” In the investigation surrounding the murder, Dassey emerged as a suspected co-conspirator after a series of interrogations without a lawyer or adult present. Amid a sequence of leading questions, Dassey confessed to sexually assaulting Halbach and aiding his uncle with the murder and subsequent cover-up. He later recanted his confession; on cross examination in his trial he stated that the acts to which he had admitted “didn’t really happen” and that his confession was “made up.” Nonetheless, in 2007, he was found guilty of first-degree intentional homicide, second-degree sexual assault, and mutilation of a corpse and was sentenced to life in prison.
In recent years, Avery and Dassey have both separately launched campaigns of appeals and legal challenges; Dassey’s pointed to ineffective assistance of counsel and a coerced confession, and Avery’s alleged that the Manitowoc County Police had framed him. In 2010, Dassey unsuccessfully applied for post-conviction relief at the trial court level. His appeal of that refusal was denied by the Wisconsin Court of Appeals in 2013, and several months later, the Supreme Court of Wisconsin denied his petition for review.
After exhausting his options for relief in the State court system, on October 20, 2014, Dassey filed a writ of habeas corpus in federal court. The writ of habeas corpus is very much the “hail mary” of the criminal justice system. In order for a habeas writ to be granted, a federal court must find that either the state court’s decision was contrary to or involved an unreasonable application of federal law, or that it was based on an unreasonable determination of the facts. A court cannot grant the “writ because the federal court disagrees, or even strongly disagrees, with the state court’s decision.” Instead, “a state court’s decision must not be merely wrong, but so wrong that no reasonable judge have reached that decision.” Basically, the writ allows a federal court, in truly extreme circumstances, to overturn a verdict of a state court. Habeas writs are rarely successful; the Milwaukee Journal Sentinel estimates that 99% of all habeas corpus claims fail.
The Federal Court considered Dassey’s claims that 1) he had been denied his Sixth Amendment right to effective assistance of counsel and 2) his confession was coerced and should not have been relied upon to convict him. With reference to the first claim, Dassey pointed to his former lawyer Len Kachinsky’s apparent collusion with the prosecution and argued that that amounted to a serious conflict of interest. The Court reviewed this claim and noted that “Kachinsky’s conduct was inexcusable, both tactically and ethically,” but it did not rise to the level of a conflict of interest under the framework that Dassey’s legal team invoked.
The Court, however, did find Dassey’s favor on the second claim, acknowledging “significant doubts on the reliability” of his March 1, 2006, confession. The Court found that “the investigators exploited the absence of such an adult by repeatedly suggesting that they were looking out for his interests,” taking advantage of his “borderline to below average intellectual ability likely made him more susceptible to coercive pressure.” In short, Dassey, well aware of some of the case facts from media coverage, gave a confession detailing a murder story consistent with these facts, as a result of investigators' leading questions and statements. This was because the investigators had “led Dassey to believe that he would not be punished for telling them the incriminating details they professed to already know,” and suggested that he would be punished if he didn’t provide a story in line with their version of the truth.
The popularity and attention surrounding Making a Murderer undoubtedly has had an affect on the legal outcomes for Avery and Dassey. The widespread awareness of their story likely allowed them to obtain more experienced and distinguished legal counsel. In Avery’s case, Reddit users have been combing evidence last week, some claimed to have made a discovery that proves Avery’s innocence. Regardless of the veracity of these claims, they keep Avery in the forefront of people’s minds and increase the possibility that there will be a development in his case.
Since the pair were tried and convicted separately, Dassey's new freedom has no immediate effect on Avery’s legal battle. Avery’s conviction relied heavily on DNA evidence, which he contends was planted. The jury did rely on Dassey’s timeline of events, and it is possible that they gleaned other details from his testimony. To the extent that Dassey’s statements were used in any way to convict Avery, they could be excluded, but given the existence of stronger evidence it probably won’t matter much. Although Avery’s previous challenges were unsuccessful, his lawyer recently filed a new appeal citing due process violations. A brief in support of the appeal, detailing these violations, is due to be filed at the end of August.
The Federal court’s grant of a measure as extreme as habeas writ is nonetheless significant, and suggests a level of abject distrust in the authorities that handled the investigation of Halbach’s murder. To the extent that the investigators’ unethical and illegal behavior in coercing a confession from Dassey might be reflective of their behavior in other respects, perhaps this judgment opens the door for Avery’s absolution. Avery’s lawyer tweeted yesterday that “Brendan’s opinion shows cops made up crime story. Steven’s will show cops made up crime evidence.” This sentiment is consistent with the Federal court’s apparent mistrust of the Manitowoc County Police Department’s investigation.
It remains to be seen how Avery will invoke this decision in his case, if at all. Despite a lack of direct implications on Avery’s fate, the Federal court’s willingness to stand up to state authorities in this manner may reflect a changing tide in the muddy waters of his case. If Dassey was able to overcome such a strong presumption in the state’s favor to render his confession inadmissible, Avery too could finally find himself in a court where his case sees a similar change in trajectory.
Jessica Meiselman is an attorney based in Brooklyn.