Making a Millionaire? The Civil Implications for Overturning the Brendan Dassey Conviction
The circumstances surrounding Teresa Halbach’s Halloween 2005 disappearance and murder in Manitowoc, Wisconsin have been nationally publicized in part due to the Making a Murderer Netflix documentary series.1 It is well-known that the investigation into Halbach’s murder resulted in the convictions of Steven Avery and Avery’s minor nephew, Brendan Dassey.
Indeed, the investigation, trial, and conviction of Brendan Dassey for Halbach’s murder have been the subjects of intense public scrutiny. Due to the overwhelming attention given to these prosecutions and the abundant video footage obtained as part of the 2015 Netflix series, the videotaped confession of Brendan Dassey has served as the source of much controversy. As depicted in that series, Dassey’s allegedly “coerced” March 1, 2006 confession to Calumet County Sheriff’s Investigator Mark Wiegert and Wisconsin Department of Justice Special Agent Tom Fassbender has served as one of the grounds for Dassey’s repeated attempts to overturn his conviction.
After exhausting his state court post-conviction remedies before the Wisconsin Court of Appeals and Wisconsin Supreme Court2, Dassey filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the Anti-Terrorism and Effective Death Penalty Act of 1996 “AEDPA”) in the U.S. District Court for the Eastern District of Wisconsin. In his petition, Dassey once again sought a judicial determination that his March 1, 2006 confession was obtained by coercive means and, therefore, violated his Fifth Amendment right against self-incrimination.3
As recognized by the federal district court, “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.”4 In that regard, Dassey was required to demonstrate that the state court proceedings resulted in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law” or based upon an unreasonable determination of the evidence presented in those proceedings.5 Despite that formidable barrier, U.S. Magistrate Judge William E. Duffin granted Dassey’s petition on August 12, 2016.6
In a lengthy opinion, Judge Duffin found that Dassey’s confession “was so clearly involuntary” that it violated “clearly established federal law” under the Fifth and Fourteenth Amendments; this was primarily due to Dassey’s lack of mental capacity and the coercive tactics utilized by the police during his interrogation.7 The Seventh Circuit Court of Appeals affirmed the district court in a 2-1 decision issued on June 22, 2017.8 However, on August 4, 2017, the federal appellate court granted the State of Wisconsin’s petition for rehearing en banc and vacated the three-judge panel’s decision pending the rehearing.9 Oral arguments took place before the full panel on September 26, 2017. As a result of the Seventh Circuit’s decision to rehear the case, it is presently unknown whether Dassey’s overturned conviction will be upheld in its current form.
With that background in mind, this article explores the potential civil liability that could arise from Brendan Dassey’s overturned state court conviction. As readers are likely aware, the violation of a criminal defendant’s constitutional right – as is presently found to have occurred in Dassey’s case – often raises the possibility of civil liability for state and municipal law enforcement officers as well as their agencies.
Accordingly, this article analyzes the viability of the civil claims that Dassey might assert under the remedy most commonly utilized by exonerated criminal defendants – the federal civil rights “1983” action.
I. Section 1983 Action
42 U.S.C. § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
As applicable here, § 1983 provides a civil remedy for violations of a criminal defendant’s federal constitutional right committed by law enforcement acting “under color of state law” during the arrest, investigation, or prosecution of a crime. Section 1983 actions against police officers are commonly based on allegations involving the use of excessive force during an arrest, the fabrication of evidence, suppression of exculpatory evidence, or the use of coercive interrogation tactics. Under those circumstances, the plaintiff typically asserts that a violation of his/her Fourth, Fifth, or Fourteenth Amendment right has been committed by law enforcement.
A. The Constitutional Prohibitions
The use of an involuntarily “coerced” confession against a criminal defendant can violate both the Fifth and Fourteenth Amendment of the United States Constitution.10 The Fifth Amendment Self- Incrimination Clause, “made applicable to the States by the Fourteenth Amendment,” requires that “no person shall be compelled in any criminal case to be a witness against himself.”11 The Supreme Court has also long held that “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.”12
As it relates to the use of involuntary confessions in criminal proceedings, the U.S. Supreme Court has “created prophylactic rules designed to safeguard the core constitutional right” protected by the Self-Incrimination Clause.13 That core constitutional right is identified is the right to be free from compulsory self-incrimination.14 To that end, the Supreme Court has been clear that “[t]he privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants.”15
B. Coerced ConfessionClaims under Section 1983
In addition to raising the possibility that a criminal court will exclude a confession deemed to have been obtained involuntarily, the introduction of that confession at trial can result in the imposition of civil liability for law enforcement personnel under § 1983.16 However, absent the use of the suspect’s compelled statement in a formal “criminal proceeding,” a § 1983 action is doomed.17 In other words, the law “requires, at the very least, the initiation of a legal proceeding, rather than mere police questioning, before a suspect’s self-incrimination rights are implicated” for purposes of imposing civil liability under § 1983.18
Moreover, there are strong indications within the Seventh Circuit that the coercively obtained confession must be “indispensable” to the initiation or maintenance of the underlying criminal proceeding. Absent that determination, a § 1983 violation is not “actionable in a suit.”19 Finally, “a plaintiff convicted of a crime in state court cannot bring a § 1983 claim which, if successful, would imply that his conviction was invalid, unless and until the conviction has been reversed on appeal or otherwise invalidated.”20
C. Dassey's Potential Section 1983 Claims.
Dassey’s case appears to meet the requirements regarding the introduction of the self-incriminating statement during a criminal proceeding, the statement’s indispensability to that proceeding, and the invalidation of the conviction. In granting the habeas petition, effectively invalidating his state court conviction, the federal district court ruled that the confession of then 16-year old Dassey was obtained involuntarily by police in clear violation of his fundamental Fifth and Fourteenth Amendment rights.21
More specifically, both Magistrate Judge Duffin and the Seventh Circuit concluded that the “repeated false promises” provided to Dassey during his interrogation, “when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments.”22 Judge Duffin further ruled, in essence, that the use of the confession at trial was indispensable to Dassey’s trial and conviction. In that respect, the Seventh Circuit agreed with the district court that “Dassey’s confession was, as a practical matter, the entirety of the case against him.”23
Therefore, as largely established in the federal habeas rulings, it appears that Dassey’s claim would meet the prima facie legal requirements for a § 1983 claim based on the violation of his Fifth and Fourteenth Amendment rights.24
II. Potential Defenses
One issue that would be raised by the defendants in Dassey’s civil case is whether the individual officers are entitled to “qualified immunity” from a § 1983 suit. The defense of qualified immunity is complex and the subject of much case law to say the least. In sum, it is a judicially created doctrine that “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”25 In this manner, the doctrine “gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.”26
The qualified immunity defense, which raises a question of law for the court to decide “at the earliest possible stage of litigation,”27 is a very common obstacle for plaintiffs seeking relief under § 1983. Because it is intended to protect public officials from having to “stand trial or face the other burdens of litigation,” it is frequently raised in a motion to dismiss or a motion for summary judgment.28 To determine whether an official is entitled to qualified immunity, courts consider two questions: “(1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right, and (2) whether that constitutional right was clearly established at the time of the alleged violation.”29
More recently, the U.S. Supreme Court has reiterated that for a right to be clearly established, it is not required that a prior case be “directly on point” “but existing precedent must have placed the statutory or constitutional question beyond debate.”30 The critical question in the Dassey case will be whether the unconstitutionality of the officers’ conduct was beyond debate under existing precedent at the time the confession was obtained in 2006. In this respect, the analysis is complex and “particularized to the facts of the case” at hand.31
It is worth noting that qualified immunity typically does not apply to law enforcement personnel who find themselves defendants in § 1983 suits for allegations involving coercive interrogations. This is because, generally speaking, a criminal defendant’s constitutional right to be free from having an involuntary confession used against him/her at his trial was, as early as 1936, clearly established by relevant U.S. Supreme Court precedent.32 Thus, several courts have reasoned that any reasonable police officer would understand that the act of coercing an involuntary confession from a defendant is in clear violation of that individual’s constitutional rights.33 At the very least, there is an argument to be made that the prior habeas rulings in Dassey’s case have laid the groundwork to overcome the “clearly established” qualified immunity hurdle.34
In certain prior § 1983 cases involving coerced confessions claims, law enforcement defendants have also argued that there is a lack of “causation” between the coercive interrogation and the resulting conviction. As the argument goes, “it is the prosecutor, not the police officer, who decides to introduce and actually introduces the statement into evidence” and “the trial judge who ultimately determines whether the statement will be admitted.”35 However, most courts are loath to accept such traditional tort defense arguments from defendants in § 1983 actions.
In response, courts have reasoned that “[t]he requisite causal connection can be established not only by some kind of direct personal participation in the deprivation [at trial], but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury.”36
III. High Exposure Damages and Costs of Litigation
It is entirely common for exonerated criminal defendants-turned plaintiffs to seek and obtain substantial jury verdicts and settlements in § 1983 civil rights lawsuits. It now appears equally common for plaintiff’s attorneys pursuing such claims at trial to request that the jury award at least one million dollars per each year the plaintiff has spent incarcerated as a result of the constitutional violation committed.
It is therefore unsurprising that in other recent cases involving coerced confession/wrongful conviction claims, plaintiffs have recovered compensatory and punitive damage awards well into the seven figures. For example, a New York federal jury in 2014 awarded plaintiff, Jeffrey Deskovic $41.6 million for his sixteen years of wrongful imprisonment stemming from the fabrication of evidence and coerced murder confession used against him at trial.37 Likewise, Escondido and Oceanside California police officer defendants in 2011 settled claims arising from the investigation of the highprofile murder of minor Stephanie Crowe. The subsequent civil lawsuit alleged that police coerced the confessions of three teenage boys, including the victim’s brother. As a result of those coerced confessions, two plaintiffs obtained settlements for $7.25 million and approximately $4 million, respectively.38
In 2010, a federal jury in Illinois awarded plaintiff, Kevin Fox, and his wife $15.5 million in damages, including $6.2 million in punitive damages for claims arising from Fox’s arrest for the murder of his daughter.39 In that case, Fox alleged that Will County, Illinois detectives coerced a confession from him and delayed the testing of DNA evidence, leaving him imprisoned for nearly eight months. In 2006, a federal jury awarded $2.25 million to plaintiff Earl Washington Jr., a Virginia man with an IQ of 69, who was convicted largely on the strength of a confession in which he got several details wrong, including the race of the victim and the number of times she was stabbed.40
Dassey, who is now 27 years old, was sentenced to life in prison in 2007 and has now spent his entire adult life incarcerated in a Wisconsin prison. Therefore, if Dassey were to successfully pursue a civil rights claim for the alleged violation of his conditional rights, it is certainly possible that he might garner a substantial recovery in line with those discussed above. Finally, as it relates to claims against Wisconsin law enforcement officials, it is important to note that that the $50,000.00 municipal liability damages cap contained at Wis. Stat. § 893.8041 is inapplicable to § 1983 constitutional violation claims.42 Thus, this cap would not apply to Dassey’s § 1983 claims against Calumet County and State of Wisconsin police officials, Wiegert and Fassbender.
Setting aside the potential for extremely high compensatory and punitive damage jury awards, the cost of litigating a § 1983 action for the potential defendants could be exorbitant.
A successful § 1983 plaintiff can be awarded, in the court’s discretion, reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. In that respect, the Supreme Court has said that “Congress intended to permit the ... award of counsel fees only when a party has prevailed on the merits.”43 Accordingly, “liability on the merits and responsibility for fees go hand in hand; where a defendant has not been prevailed against, either because of legal immunity or on the merits, § 1988 does not authorize a fee award against that defendant.” 44
As such, these cost considerations would also come into play when deciding whether and how vigorously any potential civil rights claims are litigated on Dassey’s behalf.
On September 26, 2017, the Seventh Circuit Court of Appeals heard oral arguments on this matter. It remains to be seen whether the Court will affirm or reverse Judge Duffin’s decision.
Benjamin E. Reyes is an attorney with McCoy Leavitt Laskey where he maintains a national trial and appellate litigation practice involving primarily product liability, property damage, and catastrophic personal injury claims. He is admitted to practice in Wisconsin and Illinois, all federal courts in Wisconsin, and the Northern District of Illinois. He has appeared as a pro hac vice counsel in multiple other jurisdictions across the county. He also has experience litigating various types of federal civil rights claims including those stemming from allegations of law enforcement misconduct.
Prior to entering practice, Attorney Reyes graduated cum laude in the top 10% of his class from Marquette University Law School. While at Marquette Law, he interned with the Honorable Aaron E. Goodstein at the U.S. District Court for the Eastern District of Wisconsin, the U.S. Attorney's Office for the Eastern District of Wisconsin, and the U.S. Court of Appeals for the Seventh Circuit of Chicago. He has previously served as the State Bar Board of Governors Liaison for the Wisconsin Hispanic Lawyers Association (WHLA) and is an active member of the Hispanic National Bar Association (HNBA).
2 The Wisconsin Supreme Court denied Dassey’s petition for review on April 1, 2013.
3 Dassey’s petition for a writ of habeas corpus contained two constitutional claims for relief. In addition, to the claim that his “March 1, 2006 confession was obtained in violation of the Fifth Amendment,” Dassey also “claimed that he was denied his Sixth Amendment right to the effective assistance of counsel.” Dassey v. Dittmann, 201 F.Supp.3d 963, 987 (E.D.Wis., 2016).
4 Id. at 985.
5 28 U.S.C. § 2254 (d) (1)-(2).
6 Dassey v. Dittmann, 201 F. Supp. 3d 963 at 987.
7 Id. at 1005.
8 Dassey v. Dittmann, 850 F.3d 933 (7th Cir. 2017).
9 Seventh Circuit Court of Appeals Case No-16-3397 Order dated 08/04/17.
10 United States v. Stadfeld, 689 F.2d 705, 709 (7th Cir. 2012) (“A conviction obtained by the use of an involuntary confession violates due process.”)
11 U.S. Cons. Amdt. 5; Chavez v. Martinez, 538 U.S. 760, 766 (2003) (citing Malloy v. Hogan, 378 U.S. 1 (1964)).
12 Dassey v. Dittmann, 860 F.3d 933, 951 (7th Cir. 2017) (citing Miller v. Fenton, 474 U.S. 104, 109, (1985) (citing Brown v. Mississippi, 297 U.S. 278 (1936)) and further noting that, in addition to the violation of the Due Process Clause, “coerced confessions also violate the Fifth Amendment’s right against self-incrimination.” Withrow v. Williams, 507 U.S. 680, 688 (1993).
13 Chavez v. Martinez, at 767. The most familiar judicially created prophylactic measure created by the U.S. Supreme Court is the application of the exclusionary rule applied in Miranda v. Arizona, 384 U.S. 436 (1966).
15 Id. (emphasis in original) (citing United States v. Verdugo-Uruidez, 494 U.S. 259, 264 (1990)).
16 Avery v. City of Milwaukee, 847 F.3d 433, fn. 2 (7th Cir. 2017) (“Using a coerced confession against the accused at trial may give rise to a claim for violation of the accused’s Fifth Amendment right not to be a witness against himself (citing Chavez v. Martinez, supra, at 767).
17 Id. (holding that an interrogation without Miranda warnings did not violate the Self–Incrimination Clause of the Fifth Amendment because the suspect’s incriminating statements were not used against him in a criminal case” and were thus not actionable under § 1983).
18 Sornberger v. City of Knoxville, 434 F.3d 1006, 1024 (7th Cir. 2006).
19 See Aleman v. Village of Hanover Park, 662 F.3d 897 (7th Cir. 2011):
20 The Miranda rule is intended to backstop the right conferred by the Fifth Amendment not to be compelled to incriminate oneself, by excluding from the defendant›s trial the confession that the violation enabled the police to elicit when upon arresting they questioned him. Aleman was never tried. But the statement he made to the officers who questioned him was used against him in a criminal proceeding—it was an indispensable ground of his indictment for murder, and thus made the violation of Miranda actionable in a suit under section 1983. Sornberger v. City of Knoxville, 434 F.3d 1006, 1026– 27 (7th Cir.2006); see also Stoot v. City of Everett, 582 F.3d 910, 925 (9th Cir.2009); Higazy v. Templeton, 505 F.3d161, 173 (2d Cir.2007);
21 See also Connor v. Salaam, 2017 WL 395118, at *5 (E.D. Wis., 2017)(“Taken together, these cases suggest that a violation of Miranda is actionable in a suit under 1983 when the incriminating statement is indispensable to an individual’s criminal proceeding.”).
22 Reynolds v. Jamison, 488 F.3d 756, 766–67 (7th Cir. 2007) (citing Heck v. Humphrey, 512 U.S. 477 (1994)).
23 Dassey v. Dittmann, 201 F.Supp.3d 963 at 1006.
25 Dassey v. Dittmann, 850 F.3d 933 at 983. The Seventh Circuit further stated that “[d]espite the intensity of the investigation, the brutality 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 scintilla of physical evidence linking Dassey to this crime.” Id.
26 As a fallback, the doctrine of “substantive due process” under the Fourteenth Amendment can provide an alternative basis of liability for certain forms of extremely oppressive governmental conduct such as coercive interrogation tactics. However, a liability claim under the “substantive due process” doctrine is adjudicated under a very strict standard. That is to say that “a Fourteenth Amendment claim of this type is cognizable only if the alleged abuse of power “shocks the conscience” and “violates the decencies of civilized conduct.” Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009) (citing County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
27 Pearson v. Callahan, 555 U.S. 223, 231 (2009).
28 Sornberger v. City of Knoxville, 434 F.3d 1006, 1013 (7th Cir. 2006).
29 Alvarado v. Picur, 859 F.2d 448, 450 (7th Cir. 1988).
30 Id. at 451 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
31 Allin v. City of Springfield, 845 F.3d 858, 862 (7th Cir. 2016).
32 White v. Pauly, 137 S.Ct. 548, 552 (2017)(citing Mullenix v. Luna, 136 S. Ct. 305 (2015)).
33 Pauly, 137 S. Ct. at 552.
34 Hill v. City of Chicago, 2009 WL 174994, at * 8 (N.D. Ill., 2009) (“A defendant’s constitutional right not to have a coerced confession used against him at his criminal trial was clearly established” the time of a § 1983 plaintiff’s confession in 1992 and his criminal trial in 1994. Specifically, based on a 1936 Supreme Court case, the Chavez v. Martinez Court recognized that “[s]tatements compelled by police interrogations of course may not be used against a defendant at trial, see Brown v. Mississippi, 297 U.S. 278, 286 (1936), but it is not until their use in a criminal case that a violation of the Self–Incrimination Clause occurs.” Chavez, 538 U.S. at 767 (citing United States v. Verdugo-Uruidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990))”; see also Crowe v. County of San Diego, 608 F.3d 406, 432 (9th Cir. 2010);
35 Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009) (citing Higazy v. Templeton, 505 F.3d 161 (2nd Cir. 2007) (the use of a coerced statement against accused in a bail hearing violated Fifth Amendment rights and plaintiff was entitled to litigate a Bivens constitutional cause of action.); California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039, 1050 (9th Cir. 1999), as amended on denial of reh'g and reh'g en banc (Jan. 8, 2000)(defendant officers who intentionally violated the rights protected by Miranda were not entitled to qualified immunity);
36 See Dassey v. Dittmann, 850 F.3d 933 (7th Cir. 2017) (citing Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); In re Gault, 387 U.S. 1, (1967); Gallegos v. Colorado, 370 U.S. 49 (1962); Haley v. Ohio, 332 U.S. 596, 599–601, 68 S.Ct. 302, 92 L.Ed. 224 (1948)).
37 Crowe v. County of San Diego, 608 F.3d 406, 430 (9th Cir. 2010).
38 Id. at 430–31 (“When a police officer questions a suspect, he knows that any statement the suspect gives may be used to prosecute that suspect. A fortiori, he knows that an obtained confession will almost certainly be used to prosecute. Thus, while the officer may not actually introduce the statement into court, coercing the confession “set[s] in motion a series of acts by others which the [officer] knows or reasonably should know would cause” the statement to be introduced.”).
43 Wis. Stat. § 893.80 “(3) Except as provided in this subsection, the amount recoverable by any person for any damages, injuries or death in any action founded on tort against any …political corporation, governmental subdivision or agency thereof and against their officers, officials, agents or employees for acts done in their official capacity or in the course of their agency or employment, whether proceeded against jointly or severally, shall not exceed $50,000.”
44 Thompson v. Village of Hales Corners, 115 Wis.2d 289, 298 (Wis.1983) (stating “that the purpose behind section 1983 would be similarly defeated if deprivation of constitutional rights was not fully compensated because of a state statutory recovery ceiling.”)
45 Farrar v. Hobby, 506 U.S. 103, 110 (1992).
46 Id. (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)).