Little Hope For Brendan Dassey If Appeals Court Rules For State [Opinion]

Inside of a courtroom jury box.
Spencer Weiner / AP

While hope and optimism are usually welcomed bedfellows, in the case of Making a Murderer subject Brendan Dassey, they’re all the now 27-year-old has.

Dassey was just 16 when he was tried as an adult and convicted of first-degree murder, sexual assault, and mutilation of a corpse. His lawyers are just days away from arguing his case in front of the eight judges of the Seventh Circuit Court of Appeals.

It will be months before the next step is taken after that, although given what has transpired so far, the case is surely bound for the United States Supreme Court. But, because the court only hears fewer than 1 percent of the 7,000 cases it receives annually, the odds aren’t in anyone’s favor. That includes the State of Wisconsin, which has already been given the opportunity to retry Dassey, release him or appeal U.S. Magistrate William Duffin’s ruling that his confession was unconstitutional. The state chose the latter–twice.

If the Seventh Circuit affirms Duffin, the case would be remanded to the district court. When the 90-clock starts would be up to Duffin, but his 2016 order would again stand, and Dassey’s presumption of innocence would be restored.

Laura Nirider, Steve Drizin, and Robert Dvorak would be forced to bring the case to Supreme Court if the Seventh Circuit sides with Wisconsin.

Because there’s nothing tying Dassey to the crime scene he described to police, the lone claim under inadmissible evidence is the confession. And while it has not been a central talking point, his appeal does include a claim of ineffective assistance of counsel.

His lawyers have already argued both claims in the state courts.

In 2010, Judge Jerome Fox denied Dassey a new trial. In 2013, the Wisconsin Court of Appeals affirmed Fox’s ruling, and the Wisconsin Supreme Court refused to hear the case.

What’s left could be a motion for retrial in the state court based on prosecutorial misconduct, although it would be a tremendous long shot. There was no jury misconduct, so an appeal on that claim would likely go nowhere.

Dassey could have a slim chance with an appeal under insufficient evidence, but likely not with the confession admitted.

At the end of the day, the confession remains the centerpiece of the conviction, and Brendan’s lawyers have argued its validity all the way through the federal courts.

Unlike Kathleen Zellner, who’s retesting existing evidence, Brendan’s attorneys have nothing to work with. To start over in the state courts in the event the Seventh Circuit overturns Duffin and the Supreme Court rejects the case, new findings would need to emerge: direct evidence, new witnesses or as supporters hope for, a Steven Avery exoneration.

[Featured Image by Spencer Weiner/AP Images]