Making a Murderer subject Brendan Dassey will continue to await his fate as the Seventh U.S. Circuit Court of Appeals prepares a decision as to whether it will uphold a 2016 ruling that his confession in the 2005 murder of Teresa Halbach was coerced.
A panel of seven judges on Tuesday, September 26, heard arguments from Wisconsin Deputy Solicitor General Luke Berg and Laura Nirider of the Center on Wrongful Convictions of Youth. Nirider, part of Dassey’s team for the past 10 years, told the panel that his will was overborne by Wisconsin investigators Tom Fassbender and Mark Wiegert, and that they used what she called psychological coercion to get him to confess, which violated his civil rights. Berg maintained that while police used deception when they interrogated Dassey, then 16, confession was voluntary.
Tuesday’s hearing was not without the same drama that continues to surround both the Steven Avery and Dassey appellate cases, as Chief Judge Diane Wood said the way Fassbender and Wiegert interrogated the learning-disabled teen “made her skin crawl.”
Wood spent several minutes taking Berg to task on the state’s argument that Dassey was not mistreated by police or ineffectively represented by lawyer Len Kachinsky. She appeared to side with Ilana Rover and Ann Claire Williams, who were part of the three-judge panel that voted 2-1 earlier this year to uphold U.S. Magistrate William Duffin’s 2016 ruling.
Nirider also caught her share of prickly questions Tuesday, mostly from Diane Sykes, a known conservative who was adamant that the court would not create new law just to accommodate Brendan Dassey. Many of Sykes’ questions pertained to Nirider’s argument that because of Dassey’s low IQ and age, he was unable to understand idioms like the “truth will set you free,” a phrase used by Mark Wiegert during questioning.
David Hamilton, the lone dissenter on the three-judge panel, is also likely to stand firm and vote to reverse Duffin’s decision. Michael Kanne is also expected to side with Hamilton, leaving Frank Easterbrook, who did not speak Tuesday, the judge who could hold the deciding vote.
In addition to weighing whether Supreme Court precedent will allow a writ of habeas corpus in Dassey’s case, the entire panel will also measure Tuesday’s arguments against standards in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which curtails the ability of federal courts to overturn convictions.
Wisconsin Attorney General Brad Schimel spoke to reporters after the hearing and said because of AEDPA, the federal courts do not have the power in this case to overturn Brendan Dassey’s 2007 conviction, noting that the state courts denied him a new trial in 2010 and 2013.
Schimel also responded to Wood’s comment, saying “What makes my skin crawl is what happened to Teresa Halbach.”
The Seventh Circuit’s decision could be returned in four to six months.
Depending on the outcome of Tuesday’s hearing, the State of Wisconsin or Dassey’s lawyers would have a small window in which to send the case to the Supreme Court. The odds of the nation’s highest court hearing the case are slim though. Justices could, however, decide to hear it because of a close decision in the lower court.
Dassey and Avery are serving life sentences, Avery without the possibility of parole. Since taking his case in January 2016, his attorney, Kathleen Zellner, has filed a 1,200-page motion for post-conviction relief back in the state circuit court. In it, she alludes to Teresa Halbach’s ex-boyfriend as the killer. She claims the killer duped law enforcement into focusing on Avery and that police planted evidence.
Dassey is eligible for parole in 2048.
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