Retired Appellate Judge: Courts Consider Poor Defendants ‘Trash’

There are arguably many problems with the American criminal justice system, and one of them is a low regard for defendants who cannot afford legal counsel, according to a recently retired judge from the 7th U.S. Circuit Court of Appeals in Chicago.

“The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” former Judge Richard Posner told the New York Times.

Posner was appointed to the court in 1981 by former President Ronald Reagan and spent much of his time on the bench as a known conservative. Posner, who was expected to hear en banc arguments in the case of Making a Murderer subject Brendan Dassey on September 26, wrote more than 3,000 appellate opinions in his 35 years as a member of the 7th Circuit.

To say the former Chicago law professor has seen a diverse range of cases is likely a grave understatement. But Posner said one of the things he’s noticed is that a significant number of appellants attempt to represent themselves to no avail. They spend hours and hours preparing and filing handwritten briefs, which he said are commonly rejected on technicalities rather than merit. Poor, uneducated litigants do not get a fair shake, Posner said, something he started noticing since his appointment.

Not much has changed today, the 78-year-old says. If anything, it has gotten worse. He said almost four decades of that realization peaked six months ago.

Posner announced his retirement Friday, September 1, effective the next day. He offered few details, attributing it only to tensions between his judicial colleagues.

Some of that tension stems from the cases handled in the 7th Circuit, the Harvard Law graduate said. Staff lawyers, not judges, he said, assess pro se appeals, something Posner felt needed to change. He asked to review all memos from staff attorneys before they reached panels of judges. He thought it would be good for the lawyers, judges, and, mostly importantly, the litigants. The attorneys and the staff director agreed. But Posner said the idea tanked when it was presented to the 11 other judges, who he says refused to give him much of a role in the process.

Posner said he will continue to work with prisoner rights groups, law firms, and law schools as an advocate for those mistreated by the legal system.

Brendan Dassey’s legal team, led by Steven Drizin and Laura Nirider of Northwestern University, recognized that the Manitowoc County teen fell into that category in 2007, the year he was sentenced to life in prison. As depicted in Making a Murderer, Dassey confessed to helping his uncle Steven Avery kill Teresa Halbach in 2005.

For the last decade, Drizin and Nirider have argued that the confession the then 16-year-old Dassey gave to police was coerced. A federal magistrate agreed in 2016, a ruling upheld by a three-judge panel in the 7th Circuit earlier this year. That ruling was vacated when the entire court agreed to hear the case — an en banc hearing that was set to include its nine active judges, including Posner.

The court’s eight remaining active judges will now hear Dassey’s case, and he needs five votes for the court to uphold the 2016 ruling. The court would also rule in Dassey’s favor in the event of a tie. Regardless, the proceedings may set persuasive precedent for the 7th Circuit, which includes Illinois, Indiana, and Wisconsin, in the area of juvenile interrogations.

[Featured Image by Mark Wilson/Getty Images]