On Friday August 4th, 2017, the United States Court of Appeals for the Seventh Circuit issued an order vacating a three-judge panel’s June 22, 2017 2-1 decision upholding a lower court’s Brendan Dassey (Making a Murderer) habeas corpus decision. Oral arguments are set for September 26th, 2017 in the Everett McKinley Dirksen United States Courthouse, 219 S Dearborn St, Chicago, IL.
While the news of the 7th agreeing to rehear the case with the entire court in attendance was shocking to many, others have seen this coming for some time. It is never prudent to try to peer inside the minds of a court or its Bench. The 7th is home to some of the foremost and prominent legal minds in the United States. We have no indication from the one paragraph order to vacate and hear en banc, but it would be fair to say the 7th decided to take the extraordinary step of en banc because of the extreme importance of the pending decision.
Ironically, the 7th order originally identified Dassey as the requesting party but that has since been changed. Even the highest courts in the land make mistakes occasionally.
News of the en banc came around mid-day here in the US. People on both sides of the case scrambled to try to dissect exactly what this means for Brendan Dassey’s case moving forward in layman’s terms. Hopefully we will shed some light on what happens next and dispel some fears.
Some things are being misconstrued and we would like to set issues straight if possible. The State of Wisconsin was the party that requested an en banc or full court re-hearing of the case. This is their right but is rarely granted. Many people are assuming this granting foreshadows an outcome one way or another but we would urge extreme caution in doing so.
Pundits and lawyers on both sides of the case have alluded to the fact that this case is so vitally important to interrogation and law enforcement practices in the United States that this case was destined for the highest levels of our Judicial System. Lawyers and observers have pointed for some time to a lack of case law addressing exactly the issues Dassey raises. The Reid Technique and the totality of circumstances in police interrogations have not come under this precise degree of scrutiny previously. Dassey’s renowned team of Laura Nirider and Steven Drizin have long been tasked with the duplicitous task of promoting how important this case is in the habeas portion, yet forced to downplay that importance, because this is now a prong for en banc.
It is unfortunate but this is how our system is set up. Add to this fact controversial 1996 AEDPA legislation
which in part sought to severely limit federal intervention in state court rulings and limit the constitutionally granted rights of habeas corpus. We will not explore that avenue here. But AEDPA is important to note as this is one of the major prongs the state and Judge David F. Hamilton’s dissent point to arguing the decision in Dassey in June.
It appears the 7th sees this case as worthy of the extra burden placed on the court due to the importance or precedent prong. Issues become more clear over time and need to be addressed by our highest courts and legal scholars. Judges leanings develop and change over time. To assume the 7th agreed to hear en banc because they felt the 3 panel outcome was wrong is incorrect. People need to realize at this level, the issue becomes not only what is right in the instant case, but what is right for the entire embodiment of case law moving forward.
Detractors have argued since June that the 7th has no right to “set precedent”. Or create case law. The take that “only the Supreme Court of the United States creates precedent” is inaccurate and leads us to the next point. That point is conservative versus liberal within the court system and how Presidential appointments should be viewed (or better stated NOT viewed).
People today were quick to state that older/ well established legal minds are going to vote for or against Dassey because they are not “liberal” or “conservative” minded (based on the Presidents that appointed them in the first place). To dispel this notion one need only look to the Dassey decision in June where Hamilton (Dissent) was appointed by Obama, but Rovner (author of the affirmation) was appointed by G.H.W. Bush. For the record, Ann Williams was a Clinton appointee.
Legal conservatism equates to not wanting to change established/ settled law, or of taking a more traditional/ stoic view of law. Legal liberalism then equates to being more open to how the framers of the Constitution would have wanted law applied in a changing or progressing world. These tenets do not necessarily equate to political conservative/ liberal definitions.
The beauty of our system is it is always open to new interpretation and this is where Dassey has landed. The chances a case makes it to certiorari and the US Supreme Court are exceedingly rare. Statistically, they make it to en banc status in US Court of Appeals even less. The SCOTUS consists of 9 Justices. The highest court in the land hears an infinitesimally small number of cases because they generally rule on constitutional issues.
Many have long held that the Dassey case needs to set precedent that does not exist presently. The 7th Circuit took steps today to make sure they establish law to coincide with previous SCOTUS decisions. THAT is their job. Absent a writ of certiorari, this en banc will stand as the 7th decision in the Dassey case and will define law one way or another. Will the court uphold AEDPA or will they take steps to help ensure our rights as individuals are held in the highest regard?
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