November 25, 2019
Brendan Dassey Case Likely Bound For Supreme Court

There is no telling what the outcome will be for Making a Murderer subject Brendan Dassey after Tuesday's en banc hearing in the 7th Circuit Court of Appeals, but there is a strong likelihood the case will be appealed to U.S. Supreme Court.

The state of Wisconsin could bring the case to the high court if the 7th Circuit upholds a 2016 decision that Dassey's confession in the death of Teresa Halbach was coerced. Judging by previous statements by Attorney General Brad Schimel's office, Wisconsin will probably not stop short of Washington in that event.

It has been a 10-year haul by Northwestern University law professors Steven Drizin and Laura Nirider to bring Dassey's appeal this far, and have also only indicated their intention to do everything they can to free the now 27-year-old.

A federal magistrate overturned Dassey's conviction last summer, ruling he was coerced by Wisconsin investigators Tom Fassbender and Mark Wiegert when he admitted to his role in the murder, for which his uncle, Steven Avery, was also convicted. The state could have retried him without the confession, freed him, or appealed the court to uphold the conviction. The state appealed, only to have a three-judge panel uphold the 2016 decision earlier this year.

For either side, there would be a major hurdle to clear in bringing the case to the Supreme Court, namely the low likelihood that justices would hear the case. Of the 7,000 or more petitions each year, only between 100 and 150 are heard. But, all cases receive a decision of sorts. For those the high court decides not to hear, rulings of the lower courts stand.

That means the 7th Circuit is probably Brendan Dassey's last chance at freedom, and an opportunity for the state to preserve strong public relations. Although part of Schimel's job is to seek justice for the people of Wisconsin, his position is also a political one, leading some to say the push to keep Dassey locked up is wrapped partly in semantics.

"I think it's a Hail Mary on the part of the state," Illinois defense attorney Ali Leonard said of Wisconsin's en banc petition.

While not as rare as a writ of certiorari, en banc hearings are not commonly granted on the appellate level, leading to speculation that more than just Judge David Hamilton felt that Dassey's conviction was legal. Then there's the possibility that the court granted the hearing to ensure the previous panel properly measured its opinion by standards set forth by the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

Judges may also seek to establish persuasive precedent within the 7th Circuit. As it stands, the definition of coercion, as it pertains to Brendan Dassey, may not be clearly defined.

Although police were not rough with Dassey during interrogation, his intellect, age, and the amount of time he was questioned while officers repeated that they "already know" he was involved in the crime made him even more suggestible, Drizin and Nirider have been arguing for over decade.

"I don't think [Brendan Dassey] had any idea what was going on," Leonard said. "He never felt like he could say, 'I no longer want to speak to you.'"

Dassey, despite an IQ in the 70s, was aware of what he was being accused of, evident because he continued to deny certain statements Fassbender and Wiegert made, Deputy Solicitor General Luke Berg argued earlier this year. Dassey's will, the state will argue Tuesday, was not overborne, and he confessed voluntarily to his role in Halbach's death.

Judges Ilana Rovner and Ann Claire Williams voted to uphold the 2016 decision. Hamilton dissented. The case will now be heard by the court's eight remaining judges. The panel was initially slated to included nine judges, with Richard Posner's sudden retirement.

The first African-American to serve in the 7th Circuit, Williams is now a senior judge, meaning she is no longer considered active. She will hear Tuesday's arguments because she was part of the three-judge panel.

"I think the panel of three judges tipped its hand to where this is going," Leonard said. "They are going to ask attorneys questions [that are] less about the facts of the case, and more about the legal arguments behind the appellate process and why they're there."

[Featured Image by Scott Applewhite/AP Images]