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In the Case of Brendan Dassey: 7th Circuit to Hear En Banc

 

 

 

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.

 

http://www.stevenaverycase.org/wp-content/uploads/2017/08/Order-Granting-En-Banc-Rehearing.pdf

 

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

https://www.law.cornell.edu/wex/antiterrorism_and_effective_death_penalty_act_of_1996_aedpa

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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  • mm

    Writer, Editor, Advocate for change. Freedom is what we make it. Join the conversation.

  • Show Comments (12)

  • Sandi Sullivan

    Excellent break-down of this ruling. I always saw Dassey ending up exactly where it’s headed with this decision. In many ways I am encouraged

    • Graham T

      I agree Sandi, surely this decision is the best he can get, while Facebook groups feel it’s a bad result, I feel this is where Brendan and his interrogation will be heard, it is independent of anyone in the original case, no law enforcement or prosecutors, no previous unscrupulous judges, unlikely any favours will be passed on, and have no reason to save a County of its reputation or its money

  • PurPleXedQT

    Excellent article. I am still dumbfounded as to how this has gone this far from absolutely ZERO evidence. If he wasn’t connected with Avery, he would’ve been out 10 years ago.

    The only precedent this case needs to take is that they have locked away a man, who was a child at the time with not one ounce of physical proof. This is NOT how our justice system was founded and most certainly NOT how it should be today.

    The State of Wisconsin is making an absolute travesty of the United States Legal System and everything it is founded on. THEY need to stop!

    • Graham T

      Thank you, your absolutely right, it is shocking how they continue to hold their beliefs, a very incompetent case from the beginning, and the second time they did it to the same person.
      Been going on years in Manitowoc, whole force colluded.
      Thanks for M&M they’ve now been exposed.

    • J B

      Welcome to the Wisconsin good ol boy networks

    • Debbie Graham

      You are absolutely correct. Couldn’t agree with you more.

    • Kenneth Timothy

      Yes they should let him free but they are worried about the biggest pay out in us history he was 16 now 27 they took what are to be the best years of a mans life .if he stays in prison it shows that we don’t have a fair legal system after all.

  • Clarisse Thomas

    Brendan has really had to sacrifice so much of of his life, but should this turn out to benefit him and many more Special Needs People brought into our Court Systems then in the end Brendan will be a Hero for many. God Bless Brendan. Set Him Free.

  • JJacks

    Thanks for an honest look moving forward with the en banc. The one thing that concerns me is the one dissent seems to have carried more weight than the other two Judges opinion.

    The State jumped all over what Hamilton said in his dissent and have continued riding it like a bicycle. So in effect, his opinion carried the day. This is where I have an issue with the en banc rule.

    No doubt the State would have filed for the hearing anyway, this brings up another issue. If neither party is going to be satisfied with a 3 panel decision, why set it up this way to begin with? I came away feeling this lack of trust, and at this level it simply should not be this way.

    Regardless, their ruling will carry a lot of weight in future cases. It irritates me that Brendan will have to stay locked up for months while these judges debate this case.

    • Mary

      I could be completely wrong but I think that its just normally the way things go. A 3 judge en banc is the norm if the appeals process can even get this far. Generally it does not. The 7th circuit en banc reserves the right to go to a full en banc at any time, or either side (defense or prosecution) can request a full en banc hearing of the outcome isn’t what they hoped for, however this only granted in a miniscule number of cases because it puts more on the plate of this circuit, who typically has its hands full. The fact that Brendan’s case was heard en banc already with 3 judges was great, they upheld the lower court’s decision, but the state wasn’t happy with that so the requested full en banc. Not many thought this full en banc would occur. It’s so rare. One can only speculate that the 7th only decided to take on this case because they are going to make sure the ruling can be cited, one way or the other, in future cases. They believe this is important. So all this, that I’m sure you already knew, to say its just like the chain of command at work. One has to be done before the other and you keep going until you either get the result you want, you get heard by the highest person in authority, or somewhere towards the top they decide that the answer is what it is and you can’t go further.

  • Mary

    Oh well, there’s always the supreme court, but hopefully the state either won’t try to pursue it if prosecution can’t prove their case, or (most probable) the supreme court will refuse to hear the case and the full en banc ruling will have to stand.

  • Paul Capaldi

    “The beauty of our system???”
    Sorry,
    I fail to see any beauty in your system.
    I only see state courts that for nearly ten years abused their power of discretion, and 7th Circuit judges that cowardly blocked Brendan’s release on bond, without even a comment or explanation.

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