As soon as Wisconsin Solicitor General Luke Berg sat down, and Laura Nirider of the Bluhm Legal Clinic took the podium, it became clear which of the panel comprised the dissent. Through the course of the next 30 minutes, Laura Nirider, advocating on behalf of Brendan Dassey, would face challenges from both sides of the bench. Most pointedly by Judge Hamilton (he of the initial panel dissent), Judge Kanne, and perhaps most staunchly by Judge Diane Sykes. Dassey supporter Tracey Keogh has kindly transcribed the recording. A tool we will link below that may help (people not in attendance at the live hearing), to get a better understanding of which judge is speaking.
As in part one of our in-depth review, we will let the reader read through or listen to the audio for themselves (audio link is provided in P1). What we would like to address here are several questions we at BTR were left with following the exit of the 7th panel last Tuesday morning.
The Dissent gets 30 minutes
As someone keenly aware of the details in this case, and who also knows a thing or two about law, I find it fascinating that such learned and esteemed legal minds can see the same issues in such diametrically opposed viewpoints. Issues seemingly obvious to any layperson were quickly dissected by the 7th.
Laura Nirider met with a backlash she had not experienced in the initial hearing before the 7th Circuit in February. I can say this now, after the fact, as it has no real bearing on the day’s events or aftermath. Ms. Nirider looked a bit apprehensive to me as I mouthed the words “Good Luck” as she passed by that morning. Who wouldn’t be? Short of a trip to Washington, DC, this is the epitome of a legal career. Most attorneys will never argue before one of the highest courts in the land. It is indeed possible I misread as Laura Nirider was soon to unleash the reasoning for why this panel needs to affirm, and she jumped on the opportunity with trademark passion, grace, and humility.
I will admit to being taken completely aback by Judge Sykes’ forceful assertions that:
Judge Diane Sykes is an extremely intelligent and accomplished legal mind. Regardless of her conservative leanings (we have discussed political v. legal conservatism/ liberalism previously); how does someone of this intellect not see the complete lack of corroborative evidence for this supposed “getting it off his chest” confession? This argument plays out over the course of the second 30 minutes in 2254 discussions, but this observer was floored by how Sykes sees “the totality of circumstances” question. Simply stated, she doesn’t.
I understand Hamilton’s reasoning, and to a degree Kanne. Though Kanne asked some very strange and off-topic questions, including supposed “motivations” of law enforcement to “need” a second killer. While Kanne appeared initially to be trying to poke holes in Nirider’s assertions, a case could be made that he was on a fishing expedition and was genuinely asking questions, rather than making assertions.
Sykes and Hamilton speak on philosophy here:
I’ll leave it to the viewer to decide if they are being genuine.
Easterbrook (as ex-Chief) is the wildcard
Judge Frank Easterbrook is an ex-Chief Judge of the 7th Circuit. Not sure how many are focusing on this fact. Easterbrook is somewhat of a legendary figure in legal circles and has been embroiled in some extremely controversial situations in the past. Including threats made on his life in the early days of the Internet.
Much has been made in recent days about the silence or lack of readable facial or body language of Judge Easterbrook during the hearing. Several sources have claimed a smile or a nod here and there but no words were spoken. No questions asked. Normally one would not lean too heavily on judges’ in court demeanor, but we have several factors at work in this instance. We have seen written opinions from three of the now seven judge panel on this very case. We also have it on record as several judges have made their positions known through their candor (or lack thereof) during these en banc arguments.
Previously we asked whether Judge Wood’s position as Chief Judge would or could influence the panel. Judge Wood is squarely in favor of interpreting existing law to meet new circumstances. Judge Sykes, the complete opposite. How does a panel reconcile such completely opposing opinions and how do they do so to correctly reflect the courts’ wishes?
This brings us again to Judge Easterbrook, and to a much lesser extent Judge Kanne. Will judge Easterbrook’s former position (as Chief-Judge) be a factor as he weighs his views and opinion in this all important decision? Is this the reason it was so very hard to read Easterbrook in the courtroom, as he knows his colleagues so well, and realizes he is in fact the deciding vote?
Judge Easterbrook has enjoyed a long and illustrious career, having been nominated by Ronald Reagan in 1985. A lot has changed in the 30 odd years since 1985. What can we glean from Judge Easterbrook’s past or from his history of opinions? I will leave this question for my final comment on the hearing. All three of our writers will be offering a final take as part 3.
People’s perceptions of reactions from the bench
Under normal circumstances, I would advise being very wary of how judges act or how they portray themselves from the bench or in the normal process of asking questions of litigants. This case is completely different, however. I am completely surprised at how candid these judges were on this day (save Easterbrook). Was this because they were trying to convince the public? Were they trying to convince each other in an obviously equally divided court? We have no clue how these judges take a case under advisement. Let’s not for a minute forget that this is the Making a Murderer case and every judge on that bench is keenly aware of this fact.
There is speculation that the court knew the verdict going in, and that oral arguments were simply a formality. The fact that the 7th agreed to hear en banc speaks to this. Personally, I did not hear things that way. I believe some judges had legitimate questions. I believe others were making points. Or perhaps this was just another day on the world stage/ just another audition for the Supreme Court for Diane Sykes (or anyone) on the 7th Bench.
Will the 7th get it right?
Time will answer all questions. We will do a multi-author take in Part 3. This case is so important to all of us. The entire staff will be weighing in with their perceptions.
More on the Dassey 7th Circuit en banc:
Dassey En Banc: An In-Depth Look P3
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