On February 14th, 2017 the 7th Circuit of the United States Court of Appeals (COA) assigned a three judge panel to decide the latest appeal in the case of Brendan Dassey. Judge Ilana D. Rovner, Judge Ann C. Williams, and Judge David F. Hamilton were selected at random from the available 7th Circuit pool. Judge Rovner presides over the panel and will assign who writes the court’s opinion in this case. Below is the full audio of that 9:30AM hearing at the Everett McKinley Dirksen United States Courthouse, located at 219 S. Dearborn Street, Room 2722 in Chicago, IL.
The 7th Circuit hears arguments from Illinois, Indiana and Wisconsin. This is the second highest judiciary in the country, with only the Supreme Court of the United States higher. Having a Habeas Corpus case heard at this level would be a highlight in any attorney’s career. In this instance we find Laura Nirider of Bluhm Legal Clinic Center for Wrongful Convictions advocating for Brendan Dassey and Luke N Berg, Wisconsin AAG, Special Litigation and Appeals Unit appealing on behalf of the state.
The Dassey case has garnered worldwide attention in the past year since the release of the Netflix documentary Making A Murderer. A brief history of the case can be found in the US District Court Eastern District of Wisconsin decision handed down by US Magistrate William E. Duffin in the Fall of 2016.
We attended oral arguments this past Wednesday in Chicago and have since heard the audio of the day’s events multiple times. Social Media has been rife with speculation since these three judges grilled attorneys on both sides of the aisle in a 45 minute session. While it is indeed incredibly difficult to predict or speculate on the thought processes at play in Chicago this past week, human nature begs the question; what are these judges thinking?
The session opens with Judge Rovner blindsiding Berg about promises made Brendan Dassey and asking whether offers of leniency by officers Weigert and Fassbender overbore Dassey’s will. Berg recovers and proceeds to lay claim to the states position. That position being that Dassey was only seen as a witness and not a suspect “at first”. Berg’s claims that Dassey was free to go and was not a suspect continued for much of the morning. Though not asked by the court directly, one is left to question why Dassey was mirandized if he was only a “potential witness”.
Supporters of Dassey could not have asked for a more favorable start to the proceedings, but that feeling quickly was overshadowed once Judge Hamilton chimed in. Hamilton in no uncertain terms declared that he sided with the State’s view that the Dassey confession was not coerced and he saw no wrongdoing when watching the videotaped interrogations. Judge Williams seemed to be the most neutral of the three judge panel and made comments that seemed to cut both ways.
For her part, Laura Nirider was calm and unwavering in her defense of Brendan Dassey. At times she may have stumbled slightly, but overall her narrative was on point and accurate. On the other side of the aisle, Berg continually tried to dictate to the court and it remains to be seen how the bench will react. Berg reminded the court on numerous occasions how this was “a habeas case” not a “de novo” case. Near the end of his time, Berg stated that he had one more point before he would sit down, which was met with Judge Rovner’s retort, “what if we have more questions for you”?
In the days since this pivotal hearing, both sides of the argument have looked at statements of the different judges as evidence that the court will likely rule in their favor. My initial reaction was positive, due in large part to Judge Rovner’s apparent stance and her position as chief judge. Judge Hamilton casts a dark shadow over these oral arguments to be sure, and Judge Williams seemingly is holding her cards close to the vest. It will take a 2-1 or unanimous vote to decide this possibly landmark case.
I have maintained for some time that I believe this case is headed to the Supreme Court and will be granted certiorari. The one glaring fact to emerge from Wednesday’s oral arguments is that there is no case law to establish clear precedent in this instance. It will be up to the 7th Circuit to decide if they have enough to render a decision. Whichever side prevails in the 7th Circuit will have the upper hand going forward. The SCOTUS may or may not choose to accept the case
This is the reason so much speculation swirls around these oral arguments. What if these judges took on specific roles during this highly publicized hearing with purpose? You have a 3 judge panel. One judge apparently favors each side with one impartial if we take things at face value. (I would warn against that in the strongest terms possible).
For the sake of argument, what if these judges were playing a bit of good cop/ bad cop? Would this not be a very effective way to get the lawyers off balance and to toss the script, as it were? People will continue to speculate until a decision is handed down on the state’s appeal in the Brendan Dassey case. That opinion may be months in the making. It could come tomorrow.
I am left with 2 questions following the proceedings of this past week. Is it wise or prudent to take the questions and opinions of the 7th Circuit panel at face value? If I were a judge in one of the highest courts in the land would I so obviously let the public know what I am thinking?