Dassey v. Dittmann, No. 16-3397

CourtU.S. Court of Appeals — Seventh Circuit
Writing for the CourtRovner, Circuit Judge.
Citation860 F.3d 933
Parties Brendan DASSEY, Petitioner-Appellee, v. Michael A. DITTMANN, Respondent-Appellant.
Decision Date22 June 2017
Docket NumberNo. 16-3397

860 F.3d 933

Brendan DASSEY, Petitioner-Appellee,
v.
Michael A. DITTMANN, Respondent-Appellant.

No. 16-3397

United States Court of Appeals, Seventh Circuit.

Argued February 14, 2017
Decided June 22, 2017
Rehearing En Banc Granted, Opinion Vacated August 4, 2017


Laura Nirider, Attorney, Steven A. Drizin, Bluhm Legal Clinic, Northwestern University School of Law, Chicago, IL, Robert J. Dvorak, Attorney, Halling & Cayo, S.C., Milwaukee, WI, for Petitioner-Appellee.

Luke N. Berg, Deputy Solicitor General, Daniel P. Lennington, Attorney, Misha Tseytlin, Attorney, Ryan J. Walsh, Attorney, Kevin Michael LeRoy, Attorney, Jacob J. Wittwer, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellant.

Marsha L. Levick, Attorney, Juvenile Law Center, Philadelphia, PA, for Amici Curiae Juvenile Law Center, Wicklander-Zulawski & Associates, Incorporated, Brandon L. Garrett.

Before Rovner, Williams, and Hamilton, Circuit Judges.

Rovner, Circuit Judge.

Teresa Halbach disappeared on Halloween Day, 2005. Her concerned family and friends contacted law enforcement after she did not show up at the photography studio where she worked and her voice mailbox was full. Law enforcement officers quickly zeroed in on the Avery Auto Salvage yard in Two Rivers, Wisconsin, as the

860 F.3d 938

last place she was known to have gone, and, in particular, on Steven Avery, the son of the salvage yard owner who lived in a trailer on the property. Earlier in the day, Avery called 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 the police began to suspect that Avery's 16-year-old nephew, Brendan Dassey, who also lived on the property, might have been a witness or had information about Halbach's murder. After a few preliminary conversations, the investigators were concerned enough to call Dassey into the police station for a full interrogation. After many hours of questioning and interrogation spread over several days, Dassey confessed that he, along with Avery, had raped and brutally murdered Halbach and then burned her body in an on-site fire pit. By the time of the trial, Dassey had recanted his confession, and the State had failed to find any physical evidence linking him to the crime, but he was convicted and sentenced to life in prison nonetheless. After appeals and post-conviction proceedings in the state court failed to bring him relief. The state court on post-conviction review stated the generalized standard for evaluating the voluntariness of a confession—totality of the circumstances—but failed to note how that juvenile confession requires more care and failed to apply the standard at all. Dassey filed a petition for a writ of habeas corpus in the district court, claiming that he did not receive 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 on habeas review we must affirm. If a state court can evade all federal review by merely parroting the correct Supreme Court law, then the writ of habeas corpus is meaningless.

I.

The facts related to this case are expansive and convoluted, and those facts have been reported in various iterations throughout the decisions of the state courts of Wisconsin and in the district court. We borrow heavily from the district court and report just those facts needed for purposes of this appeal and refer the reader to the full district court opinion, Dassey v. Dittmann , 201 F.Supp.3d 963 (E.D. Wis. 2016) for further details.

Teresa Halbach was a 25-year-old summa cum laude graduate of the University of Wisconsin-Green Bay who was running her own photography business. She was the second oldest of five children in a tight-knit family, and lived in a farmhouse a quarter mile from her parents. On October 31, 2005, she photographed three vehicles for Auto Trader Magazine. She took the third and final series of photographs at the Avery salvage yard. She never returned home. Her life and career were cut short by a heinous and senseless crime.

Her brutally burned body provided few clues about her death, but other investigative methods provided the state court with the following facts. Halbach had taken photographs at the Avery property on five prior occasions, and Avery called Auto Trader the morning of October 31 and requested that "the same girl who had been out here before" come and take pictures of a vehicle that was for sale. Just before 2:30 p.m., Halbach contacted Auto Trader Magazine and said that she was on her way to the Avery property. Sometime around 2:30 or 2:45 p.m., a neighbor of Avery's saw Halbach photographing a minivan and then proceed toward Avery's residence. The neighbor left home at about 3:00 p.m. and observed Halbach's 1999 Toyota RAV4 still outside Avery's residence but did not see Halbach. When he returned home at approximately 5:00 p.m.,

860 F.3d 939

Halbach's RAV4 was gone. Halbach was not seen or heard from after that time.

On November 5, 2005, volunteer searchers scoured the forty acre, 4,000+ vehicle salvage yard and found Halbach's RAV4 partially covered by tree branches, fence posts, boxes, plywood, and auto parts. The license plates had been removed and the battery cables disconnected.

Based on that discovery, investigators obtained a search warrant for the entire salvage yard and, after a week-long search, found evidence that Halbach was the victim of a horrendous crime. Some of that evidence came from a burn barrel and a four-foot by six-foot burn pit near Avery's trailer. In those burn areas, investigators found Halbach's charred bone and dental remains, burned remnants of a cell phone and camera of the same make and model that Halbach used, and a zipper and rivets from a brand of women's jeans that Halbach was known to wear. State crime lab experts later determined, based on the skull fragments, that Halbach had been shot twice in the head. Multiple witnesses reported seeing a large bonfire in the burn pit outside of Avery's residence on October 31. The police arrested Avery after the discovery of this evidence.

Forensic investigators found a roughly six-inch blood stain in the rear cargo area of Halbach's RAV4, and other smaller stains in and around the cargo area that matched Halbach's DNA. Also in the RAV4, forensic examiners found very small blood stains that matched Avery's DNA profile on the following locations: a panel just to the right of the ignition, a CD case, a metal panel between the rear seats and the vehicle cargo area, the driver's seat, the front passenger's seat, and the floor next to the center console. Avery's DNA was also detected on the hood latch.

The investigation of Avery continued as he awaited trial. Investigators began interviewing family members, including Dassey and Avery's niece, Kayla Avery. Kayla stated that her cousin Brendan Dassey had been "acting up lately," that he was staring into space and crying uncontrollably, and that he had lost roughly forty pounds. Dassey later explained that the weight loss had been part of an effort to find a girlfriend and that the tears had been over a break up. But based on Kayla's interview, and the fact that another witness reported seeing Dassey at the bonfire with Avery around 7:30 or 7:45 p.m. on October 31, investigators decided that it was necessary to re-interview Dassey.

Calumet County Sheriff's investigator, Mark Wiegert, and Wisconsin Department of Justice Special Agent, Tom Fassbender, travelled to Dassey's high school on February 27, 2006, and, without his parents' knowledge, met with him in a conference room for about an hour. Dassey was a sophomore who received special education services, and whose IQ had been measured at various times between 74 and 81, falling fairly far below an average range of intelligence. On the Wechsler scale of intelligence, Dassey's score meant that 90% of adolescents his age would have performed intellectually better than he did, and on the Kaufman scale, 87% of adolescents his age would have performed better. R. 19–22 at 48–49. A psychological expert at trial described Dassey as highly suggestible, docile, withdrawn, with extreme social anxiety and social avoidant characteristics, and more suggestible than 95% of the population.

At that first interview with the officers, Dassey said that Avery had asked him to help load tires and an old van seat onto a bonfire near Avery's trailer on the evening of October 31, but that he saw nothing unusual before going home. Because of the poor quality of the cassette tape recording of that interview, the prosecuting attorney requested that the investigators re-interview

860 F.3d 940

Dassey to create a better record. Wiegert and Fassbender made arrangements to interview Dassey again later that same day at the local police station.

Wiegert and Fassbender contacted Dassey's mother, Barbara Janda, who met them at the school. The investigators drove Dassey and Janda to the police station. According to Wiegert and Fassbender, Janda declined their offer to be...

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4 practice notes
  • Dassey v. Dittmann, No. 16-3397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 8, 2017
    ...Dassey's confession. More detailed accounts are available in the panel, district court, and state court opinions. See Dassey v. Dittmann , 860 F.3d 933 (7th Cir. 2017) ; Dassey v. Dittmann , 201 F.Supp.3d 963 (E.D. Wis. 2016) ; State v. Dassey , 346 Wis. 2d 278, 827 N.W.2d 928, 2013 WL 3359......
  • United States v. Monroe, Cr. No. 16–055 WES
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • September 11, 2017
    ...effect. See, e.g., In re Elias V., 237 Cal.App.4th 568, 579–80, 591, 593–600, 188 Cal.Rptr.3d 202 (2015) ; cf. Dassey v. Dittmann, 860 F.3d 933, 962–72 (7th Cir. 2017).154 See generally Of she & Leo, supra note 147; see also Simon, supra note 133, at 136–38.155 See generally Innocence Proje......
  • United States v. Ogoke, No. 16-1297
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 22, 2017
    ...It is clear, both from his admission that he violated the order and from the defense he presented in his testimony (i.e. , that he 860 F.3d 933had forgotten about the order), that Leonard was aware that the issue most crucial to his guilt or innocence was whether his violation was intention......
  • Garcia v. Hoke, 88 CV 2635 (RJD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 14, 2017
    ...4, 2017, the Seventh Circuit, granting rehearing en banc, vacated its decision affirming the grant of habeas relief, Dassey v. Dittmann, 860 F.3d 933...
4 cases
  • Dassey v. Dittmann, No. 16-3397
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 8, 2017
    ...Dassey's confession. More detailed accounts are available in the panel, district court, and state court opinions. See Dassey v. Dittmann , 860 F.3d 933 (7th Cir. 2017) ; Dassey v. Dittmann , 201 F.Supp.3d 963 (E.D. Wis. 2016) ; State v. Dassey , 346 Wis. 2d 278, 827 N.W.2d 928, 2013 WL 3359......
  • United States v. Monroe, Cr. No. 16–055 WES
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • September 11, 2017
    ...effect. See, e.g., In re Elias V., 237 Cal.App.4th 568, 579–80, 591, 593–600, 188 Cal.Rptr.3d 202 (2015) ; cf. Dassey v. Dittmann, 860 F.3d 933, 962–72 (7th Cir. 2017).154 See generally Of she & Leo, supra note 147; see also Simon, supra note 133, at 136–38.155 See generally Innocence Proje......
  • United States v. Ogoke, No. 16-1297
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 22, 2017
    ...It is clear, both from his admission that he violated the order and from the defense he presented in his testimony (i.e. , that he 860 F.3d 933had forgotten about the order), that Leonard was aware that the issue most crucial to his guilt or innocence was whether his violation was intention......
  • Garcia v. Hoke, 88 CV 2635 (RJD)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 14, 2017
    ...4, 2017, the Seventh Circuit, granting rehearing en banc, vacated its decision affirming the grant of habeas relief, Dassey v. Dittmann, 860 F.3d 933...

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