The 3 most damning portions of the dissent:
1)
"The majority acknowledges that in Dassey’s case, the investigators “never made the type of explicit and specific promise of leniency that an adult of ordinary intelligence might understand as a promise.” Ante at 83. That’s right. The investigators’ statements were comparable to those permitted in Villalpando and Rutledge. The investigators made vague assurances that honest cooperation would make things easier for Dassey “if this goes to trial”; that “the honest person is the one who’s gonna get a better deal out of everything”; and that honesty is the “only thing that will set you free.” One investigator said at the very beginning of the interview, before Dassey had confessed to anything, that “from what I’m seeing …I’m thinking you’re all right. OK, you don’t have to worry about things.” But the other then cautioned: “We can’t make any promises but we’ll stand behind you no matter what you did.”
At no point did the investigators assure Dassey that he would escape prosecution or receive some other specific benefit if he cooperated or confessed. Cf. Sharp v. Rohling, 793 F.3d 1216, 1235 (10th Cir. 2015) (subject’s will was overborne where detective promised her she would not go to jail if she admitted to her participation in crime); Henry v. Kernan, 197 F.3d 1021, 1027 (9th Cir. 1999) (subject’s will was overborne where officer falsely informed him that what he said “can’t be used against you right now”).2
The majority insists, however, that whether police have made an impermissible false promise of leniency (or of anything else) depends on the subjective perception of the suspect, no matter how distorted or inaccurate his perception might be. Thus, to Dassey—with his borderline IQ and suggestible personality—the investigators’ vague assurances had in the majority’s view the “same effect” as a fraudulent promise. Ante at 83.
The Supreme Court’s “totality of the circumstances” test takes account of the subjective characteristics of the defendant (e.g., his age, health, and education). Yet no Supreme Court case has held that a confession should be deemed involuntary if the subject believed—however improbably or baselessly—that he had been promised a get‐out‐of‐jail‐free card. No case requires the reviewing court to disregard what police actually said (on a video recording, no less) in favor of what the defendant, with the benefit of time, hindsight, and savvy counsel, says he thought the police said. At a minimum, reasonable jurists could disagree whether the abstract assurances by the
investigators here were, in context, false and fraudulent. That alone should defeat any claim for habeas relief."
2)
"Second, the majority suggests that Dassey was at greater risk of being misled by the investigators’ vague moral support because they repeatedly told him that they “already knew” what happened. As the majority construes these statements, Dassey could have believed that—so long as he was honest—nothing bad would happen to him. See ante at 84. The majority cites no case from the Supreme Court or any other court holding that such bluffing by police about what they know could render a confession involuntary. On the contrary, we have recognized that “a lie that relates to the suspect’s connection to the crime is the least likely to render a confession involuntary.” 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 law‐enforcement agent may actively mislead a defendant in order to obtain a confession, so long as a rational decision remains possible.”) (alteration in original), quoting Conner v. McBride, 375 F.3d 643, 653 (7th Cir.
2004)."
3)
"Third, in concluding that Dassey’s confession was involuntary, the majority effectively departs from a string of our
habeas decisions involving confessions by juveniles who were denied relief despite being subjected to far greater pressures than Dassey was. For instance, in Etherly v. Davis, 619 F.3d 654, 657 (7th Cir. 2010), we reversed habeas relief for a petitioner with no prior criminal justice experience who at age fifteen was taken from his home before dawn and interviewed by police several hours later without the consent, let alone the presence, of a
parent or other friendly adult. Like Dassey, Etherly had borderline intellectual abilities; like the investigators here, the police in Etherly assured the juvenile that it would “go better for him in court” if he cooperated. Id. at 658.
In Carter v. Thompson, 690 F.3d 837, 839 (7th Cir. 2012), we denied relief to a habeas petitioner who at age sixteen endured an interrogation lasting fifty‐five hours in total. During gaps in the interrogation, the petitioner slept on a bench, without a pillow, a blanket, or a change of clothes. Id. at 841; see also Murdock v. Dorethy, 846 F.3d 203, 210 (7th Cir. 2017) (denying relief to sixteen‐year‐old who was interrogated over seven‐hour period); Gilbert, 488 F.3d at 784–86 (denying relief to fifteen‐year‐old who was kept from his mother and interrogated over nine‐hour period); Hardaway v. Young, 302 F.3d 757, 766 (7th Cir. 2002) (denying relief to fourteen‐year‐old
who was interviewed over sixteen‐hour period and abandoned for lengthy intervals in interrogation room). The majority describes these cases but makes no real effort to reconcile them with the relief it grants Dassey."
"This was a relatively brief and low‐key interview of a Mirandized subject who was not mistreated or threatened,
whose creature comforts were satisfied, and whose parent consented. If such a gentle interrogation can be treated as unconstitutionally coercive, what should police do the next time an investigation leads to a teenager with some intellectual challenges? Few wrongdoers are eager to own up to crimes as serious as Dassey’s. The Constitution is not offended by such police tactics as encouraging the subject to tell the truth, bluffing about what the police already know, or confronting the subject with what the police know from physical evidence and with the internal contradictions and improbabilities in his story. Today’s decision will make some police investigations
considerably more difficult, with little gained in terms of justice."
