Tuesday September 26th, 2017 dawned clear and bright in Chicago, Il. A late September heat wave had arrived, foretelling the upcoming atmosphere on the 25th floor of the Everett McKinley Dirksen United States Courthouse. Originally, we had thought the hearing to be on the 27th but found the area suspiciously quiet and abandoned at 8:30 AM. We spoke with Mr. Jerome Buting on the elevator ride down to the 25th. He informed us that one of the 8 judges apparently would be absent at the hearing and we speculated on who that might be. Once on the 25th floor, a line of perhaps 100 people greeted us. That line would more than double in the hour we waited entry to the courtroom itself.
We were greeted by seven chairs on the bench once inside the majestic courtroom of the 7th Circuit, thus confirming the absence of Judge Joel Flaum. We at BTR have been digging, but have been unable thus far to find an answer to exactly why Judge Flaum was not present. The current best guess as to why seven judges heard oral arguments is that the 7th wanted to guarantee there would be no tie. A vote of 4-4 would leave the opinion of Eastern District Magistrate Judge William Duffin as the defining word on this potentially monumental case. Either way the 7th decides, one may rest assured that the 7th Circuit will stand on record.
This review was delayed by 48 hours to give our staff time to consider, and seek answers to questions arising from Tuesday’s hearing. The first questions to surface included Flaum’s absence and how this affects the panel and case moving forward. A call to the 7th Circuit has provided some insight. Judge Joel Flaum has been recused from the Dassey en banc proceeding and will NOT be participating in any way. This had not been previously reported anywhere and is confirmation of what we have been reporting since Tuesday. Seven judges will decide the fate of Brendan Dassey and many scores of youths in similar situations in years and decades to follow.
We did not press the court on a reason for Flaum’s recusal. It is doubtful they would have offered an answer anyway. Flaum could have recused himself or been recused for any number of reasons. One of which we have spoken to already. An already limited and overworked 7th Bench (due to long vacant seats) only recently lost another battle tested warrior in Richard Posner. We will get into that situation in a later installment. The panel will be seven for the duration of this case. It should be noted that Judge Flaum is now 81 years old, though still an active judge. Health is apparently not an issue. More questions will surely arise that we simply cannot answer. For instance, if one judge was asked to step down, (to create a panel of 7 instead of 8) how would that process have been carried out? It is likely we will never know the inner machinations of the court.
Conflict of interest question with clerks.
Many are asking why Wisconsin Attorney General Brad Schimel did not argue the case himself. Some in attendance, and others we have spoken with feel this is Schimel protecting himself politically, should the state’s case fail. Secondly, Wisconsin Solicitor General Luke Berg (who spoke on behalf of Wisconsin during oral arguments in February and again on Tuesday), previously clerked for Judge Diane Sykes, of the 7th. This relationship further speaks to the way Schimel is handling the case. Placing familiar faces in front of the 7th Circuit appears to be another of his tactics. Some may cry foul and conflict of interest. Others would be quick to point out that many lawyers learn from many professors and judges and work with different firms all the time. If an attorney is to be barred from ever working the same case with someone they know within the law, work would grind to a halt.
Wood as Chief Judge- A positive sign but is it enough?
As many have reported, Luke Berg spoke first for the State of Wisconsin. Before he could utter his second sentence, Chief Judge Diane Wood stopped him in his tracks and redirected the issues facing the court. The first 30 minutes were a barrage against Berg from the likes of Wood, and fellow judges Williams and Rovner. Chief Judge Wood seemingly the most incredulous and vocal in her perceptions on the state’s case and the treatment of Brendan Dassey. Berg tried to fall back on old excuses such as Dassey’s “memories” and how the investigators “corroborated” Dassey’s story with evidence. When pushed on this point, Berg had very little to offer in terms of actual evidence. Judge Wood summed it up best when she states that “You could pick a phrase here and there and knit together a confession”. Seen in the totality of circumstances, law enforcement fed Dassey the answers they wanted to hear, and no independent evidence corroborated Dassey’s pieced together “confession”.
The first 30 minutes were a scathing attack on the state’s case. We invite you to listen for yourself, instead of trying to detail the entire hearing here. The Reid Technique was discussed at some length with the court asking Berg if it matters that many institutions are now moving away from Reid, due to its proclivity to produce false confessions. Berg argued that the United States Constitution makes no claims on Reid, nor on how we train our law enforcement. While he is technically correct, one must ask if this is the prevailing state attitude, who is looking out for the rights of our citizenry? We will get into more detail in the second installment. For now, I will leave this question in your mind. Conservative judge Diane Sykes emphatically states during arguments that the judicial system is not in place to create new law. That responsibility resides with lawmakers in the Senate and House of Representatives. Liberal Judge Diane Wood goes to great lengths to express her reasoning for why our courts must interpret existing law to meet real world issues and circumstances.
So, which do you believe? Is United States law intended to be so rigid that a young, impressionable, citizen is to be denied their constitutional rights simply because no other case exactly matches the circumstances? Or do we expect our judiciary to look at the intent of presiding law to apply to varying, yet related issues and circumstances?
More in part 2. #BeTheRain
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