In the end, I got the sense that there were 3 for Brendan, and 3 against Brendan and the voices were so similar I couldn't fully recognize any other different voices. It wasn't nearly as one sided as I was hoping. It seems like there is one judge who will tip the balance either way.
Sorry it is so long, just my thoughts from my listen through.
RSBM
I agree with a lot of what you said Saul...
"The truth will set you free" ... Nirider used the words that the Judges used in their previous decisions.
http://www.stevenaverycase.org/wp-content/uploads/2017/06/DasseyDecision.pdf
Page 50 of the 7th Circuit court ruling
If the totality of the circumstances standard means any‐
thing, it means that a state court must, at a bare minimum,
do what the rule requires and consider the totality of the cir‐
cumstances. A state court need not say much, but the less it
says, the less a federal court can ascertain that the state actu‐
ally applied a totality of the circumstances evaluation.**
And at the very least a court assessing the voluntariness
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‐
one of Dasseys age and intellect. For example, the state ap‐
pellate court never considered whether the statement the
truth will set you free would be considered idiomatically or
literally by someone of Dasseys age and limitations. Indeed
Page 88
d. The combined effect of the promises.
The false promisesthat he will be alright, that it is
not his fault that the truth will set him free clearly affect‐
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 interrogators
wanted him to say if taken literally, that statement is the exact
kind of promise 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, 900F.2d at 1129 (same).**
She was using the the statements that 2 of the 7 judges had already ruled that combined lead to it being an involuntary confession.
Karinna... the first excerpt from the decision is a good example of 2254 (d)(2).... did the state court weight the totality of the circumstances when making their decision.
It was also a big part of Duffin's decision:
http://www.stevenaverycase.org/wp-c...8/Dassey-Habeas-Corpus-Decision-and-Order.pdf
page 81
Wiegert also told Dassey that honesty is the only thing that will set you free.
(ECF No. 19-25 at 17). Granted, that statement is just an idiom, see John 8:32 (
and
you will know the truth, and the truth will make you free), and routinely understood
not to be taken literally, see, e.g., People v. Thompson, 2013 Cal. App. Unpub. LEXIS 4324
(Cal. App. 2d Dist. June 20, 2013) (With respect to possible coercion, the court found
the detectives comment, the truth will set you free was a general statement about
relieving ones conscience rather than a promise of freedom.); State v. Osborne, 2002
Me. Super. LEXIS 266 (Me. Super. Ct. Sept. 25, 2002) (The court interprets [the truth
will set you free] to mean that telling the truth will ease the Defendants conscience.);
Edwards v. State, 793 So. 2d 1044, 1048 (Fla. Dist. Ct. App. 4th Dist. 2001) (the truth
shall set you free statement, although questionable, amounts to nothing more than
encouragement to tell the truth. Surely, Edwards did not think the truth would literally
set him free. The investigators simply were appealing to Edwards religious background
in encouraging him not to lie.). However, some courts have criticized its use by
interrogators. See, e.g., Morgan v. State, 681 So. 2d 82, 88, 96-97 (Miss. 1996). And,
especially relevant here, testing revealed that idioms were an aspect of abstract
language that Dassey had difficulty understanding. (ECF No. 19-20 at 79.)
I think it was all about going with what worked before and what 3 of the judges already said that Brendan would have a hard time understanding the meaning and should have been considered.
All JMO
