The 7th U.S. Circuit Court of Appeals heard oral arguments from Brendan Dassey’s lawyers and the state yesterday as the Making A Murderer subject’s appeal continues to slowly wind its way through the justice system. Dassey’s fate now rests in the hands of seven judges who will rule in the coming months on whether police coerced a confession from the intellectually challenged teen that he raped and murdered Teresa Halbach in 2005.
The case against Dassey and his uncle Steven Avery got renewed interest after Netflix released a 10-part documentary series exploring the trials and appeals that followed. The full audio of Tuesday’s Seventh Circuit en banc hearing has been downloaded tens of thousands of times already. Now internet sleuths are busy trying to analyze the questions asked by judges and their tone in an attempt to decode which way they’ll rule. The panel seemed evenly split over the case, with one judge remaining completely silent.
“The investigators made my skin crawl watching this video,” Judge Diane Wood said. “He is obviously racking his brain about how he can answer in a way they will like.”
“There was no promise of leniency,” Judge Diane Sykes, a potential Trump Supreme Court nominee, countered later. “There was a vague suggestion, at best.”
As Making A Murderer hammered home, the criminal justice system is designed to make it hard for convicts to win their freedom, even in pretty outrageous cases like Dassey’s where no physical evidence links him to the crime and his original public defender was removed from the case for actively working against him. As it stands now, Dassey’s confession is the only legally relevant issue and it is being reviewed through the lens of a controversial statute called AEDPA, which sets an extremely high standard for defendants to receive habeas corpus relief.
Several times during Tuesday’s hearing, the panel of judges made reference to specific sections of AEDPA, prodding the defense and prosecution to explain how Dassey’s case did or didn’t meet at least one of the two standards. Did Dassey’s case “involve an unreasonable application of clearly established Federal law?” Or was it “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding?”
The requirement that Seventh Circuit judges use clearly established law won’t help Dassey as established law has some pretty shocking precedents regarding what the police can and can’t do to elicit a confession from minors. Dassey’s defense lawyers were much more effective arguing the merits of the case on the second point that there was “an unreasonable determination of the facts” during his original trial.
US Court of Appeals judges questioning why “special care” wasn’t shown to #BrendanDassey due to his age and low IQ. #makingamurderer
— Nancy Loo (@NancyLoo) September 26, 2017
Luke Berg back up on rebuttal. One judge takes issue with Fassbender saying "I'm not a cop right now. I'm a father" #MakingAMurderer
— Angenette Levy (@Angenette5) September 26, 2017
With seven judges ruling on the case, Dassey needs at least four of them to uphold a decision made last November to throw out his conviction, and it will take months before they render a decision. Even then, it’s expected that Wisconsin will appeal any positive ruling in Brendan’s favor, which would send the case before the Supreme Court. That’s the last stop, though. If the Supreme Court refuses to hear the case or rules in Dassey’s favor, Wisconsin would have to release or retry him.
While the state has been quite willing to appeal Dassey’s release at every turn, few expect it would attempt to convict him in a new trial. Without a confession, there’s simply no evidence against Dassey, which is why this whole situation has caused such strong emotions amongst those following the case.
