Listening often yields the chance to understand the opinions of others in their purest forms. Interruption can often upset that flow. Repeatedly during the en banc rehearing on the 26th of September, Luke Berg, and in turn Laura Nirider were cut off barely a few words into their legal monologues. Whether this be partly down to the fact that the judges were already aware of what they wanted to discuss, aided by the brevity (at 30 minutes per ‘side’) may arguably have contributed towards this. Easterbrook himself, didn’t interrupt once however. He was clearly in residence to listen.
I speculate that there could be several reasons for his reasoning. Two of these could be offered for the simplest of reasons. Easterbrook had already come to a conclusion; his mind was set? Whilst both are eminently possible I would wish to believe that a judge does not enter any hearing with their mind decided. Naive? I’m sure, and a wish it may just be. Relating to Easterbrook though I feel more confident in my optimism. Although I am sure Easterbrook had a leaning one way or the other, a predetermined mindset I don’t believe he had or necessarily has.
The idea behind an opinion piece regarding Easterbrook and assessments of the panel, involving the 3 of us at BTR, certainly did not merely come about because of the judge’s apparent loss of voice. Whilst speculation abounds there appears to be a common feeling that the remaining 6 judges are firmly settled in the opposing camps. Admittedly speculation is dangerous and a lawyer I am not. However, I somewhat conform to the possibility that Judges Wood, Williams and Rovner preside steadfastly in the Dassey barracks whilst Sykes, Hamilton and Kanne are tightly positioned behind the State’s lines. Personally I question Judge Kanne’s opinion one way or the other whilst admittedly veering towards his vote for the State.
Easterbrook’s silence generates further intrigue into a case that has had an abundance of twists and turns. The idea that Easterbrook’s lack of participation is down to his propensity for dramatization (I shall allude to this shortly) holds some credence in a story such of Dassey’s. Simplicity does not apply when pouring over the travails of a case that is inextricably linked to that of Steven Avery’s. The glaring error is this logic is highlighted by the need for 2 trials, a pair of murder scenes, and a differing cause of death in both cases. How easily I digress in a case such as this.
It would be foolhardy for me to give you an educated opinion as to which way Judge Easterbrook will vote. Foolhardy because an educated opinion I can’t give. What I can and will do though is share my thoughts on Easterbrook’s style in relation to his writings and opinions. This in turn will weight my opinion.
A fan I am. Easterbrook fulfils a vital ingredient needed for the writing of an opinion. Whether the outcome is agreeable or not, this does not defer from his eloquent, witty and often quirky style of prose. My own wish as a justice reform journalist is to be able to make subject matter breathe. Gaining the readers interest is my magnum opus. Without this, how and why are the general public encouraged to lend their voice to a field that screams out for their much-needed involvement. Easterbrook facilitation of this much-needed accessibility to public participation holds him high in my regard alone.
Enough jibber jabber, time for some Eastbrookonian content. Although at the heart of it, a hearing within the 7th Circuit relating to dog walking and the feeding of pigeons appears comical. The underlying tone of wrongful arrest stymied this humour. Whilst maintaining a serious judgement, the originating farcical nature of the case is not lost upon Easterbrook.
The case of Kirchoff v. Flynn was argued by the 7th Circuit back in January of 1986. Simply put, arrests had been made involving the walking of an un tethered dog and the feeding of pigeons. The application of law carried out turned out to be an outdated one and lead to the wrongful arrests of Anita and William Kirchoff. The point of contention to be resolved was to that of the disbursement of compensation. Easterbrook’s opinion went as follows in the link below.
“First, however, we pause for the facts.”
Easterbrook’s retelling of the facts flirts with the somewhat comical story that evidently took place. The art behind relaying a chain of events does not just end by stating the where’s and whys behind them. Easterbrook’s flair for being able to evoke the atmosphere of events within his writing aids the reader’s involvement in the goings on of the case. For me, this is not just of literary value. Easterbrook’s keen and sharp summing up of situations offers deeper understanding than that of solely joy of reading. By his tone alone, Easterbrook somewhat scoffs at the plausibility of statements made by certain members at the behest of the State whilst maintaining that “Who started the scuffle will remain a mystery.”
Whilst Easterbrook’s propensity for ‘style’ offers fluent reading as to the ‘facts’ of the case it is no less apparent during his opinion. Different I admit, but certainly evident when application of the law to said facts is required.
Legalese is bound to put a dampener on even a practiced logophile. Slipping in the sporadic “squadrol” and “trundled” is perhaps beyond the bounds of merit. It is within Easterbrook’s writings on application of law that I believe he stands out perhaps further. This is largely due to his setting the scene with “facts”. Easterbrook is known for his conservative approach and whilst most cite his legalist application, the cold nature of such belies his warmth of expression. It is within Easterbrook’s forthcoming account of the “facts” that I believe hope is offered to Dassey.
To my eye, Easterbrook’s interpretation of these could possibly grant him play within his application of the law. For these reasons, I remain optimistic that he might favour towards Dassey.
I found it impossible not to offer a nod in the direction of the recently retired Richard Posner. Considering my limited knowledge of judges throughout the US, Posner engaged me with his judging and his writings. Where matters of ‘style’ are to be pondered, you would be hard pressed to read a finer opinion than that of Posner’s below.
As I mentioned earlier, for me to offer a deep insight as to the verdict of Judge Easterbrook’s vote would not sit easy with me. This is not to say that I do not have an opinion. When reading through some of both Judge David Hamilton and Diane Sykes’ past opinions I have come away convinced of their staunch application of the law. Easterbrook for me harbours more interpretation than that of both Hamilton and Sykes and for that reason springs optimism regarding Dassey. Whether this interpretation of law will be enough for Easterbrook to affirm Judge William Duffin’s ruling however, remains to be seen.
Below is a selection of the resources that I had the pleasure of tackling when learning more about Judge Easterbrook.
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