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  • Tom Kertscher

Chicago appeals court to consider Brendan Dassey conviction in 'Making a Murderer' case

Chicago -- A lawyer for the State of Wisconsin will have 20 minutes Tuesday to persuade a federal appeals court to reinstate Brendan Dassey’s conviction in what has become known worldwide as the “Making a Murderer” case.

And if ultimately the lawyer doesn’t succeed, the state will have to decide whether to put Dassey on trial again.

A quick review:

Dassey and his uncle, Steven Avery, were convicted in separate trials of the 2005 murder of Teresa Halbach. The charred remains of the 25-year-old photographer were found outside of Avery’s Manitowoc County home. Both are serving life terms in prison, although Dassey will become eligible for parole.

The case was the subject of “Making a Murderer,” a 10-hour Netflix series that became an unexpected hit after it was released in December 2015.

Avery was convicted largely on the basis of physical evidence, including blood, that contained his or Halbach’s DNA. No physical evidence implicated Dassey, who was 16 with a borderline IQ at the time. He was convicted based on his own confession.

But last August, William Duffin, a federal magistrate judge in Milwaukee, overturned Dassey’s conviction. Duffin ruled that Dassey’s constitutional rights were violated because investigators for the prosecution made false promises to Dassey during multiple interrogations.

The state appealed that ruling, which put the case before the federal Seventh Circuit Court of Appeals in Chicago.

At a hearing scheduled for 9:30 a.m. Tuesday, Wisconsin’s deputy solicitor general, Luke Berg, will argue that Dassey’s confession was not involuntary and that his conviction should be reinstated. Lawyers for Dassey, who is not expected to be in court, will have 20 minutes to say why Duffin’s ruling should be upheld. Dassey’s lead attorney is Laura Nirider, project director of the Center on Wrongful Convictions of Youth at the Northwestern University School of Law.

The oral arguments will be heard by a three-judge panel of the court, where Berg once clerked for one of its members, Judge Diane Sykes. It won’t be announced until shortly before the proceedings begin which three of the 12 judges on the court will hear the arguments.

In papers filed with the appeals court, Berg has argued that Dassey’s confession was not coerced because the prosecutor’s investigators who questioned him never made him any explicit promises. The Seventh Circuit, he added, “has frequently upheld juvenile confessions where the police applied much more pressure than they did here.”

That contradicts Duffin, who concluded that the investigators made “repeated false promises” that, “when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits and the absence of a supportive adult, rendered Dassey’s confession involuntary.”

The questioning was marked by the two investigators alternately telling Dassey they were on his side, and pressing him to provide more details of the crime that they insisted they already knew. Dassey’s lawyers have argued that the confession was based on the investigators feeding facts to him.

There is no timetable for the three-judge panel to issue what will be a written decision, although commonly such decisions aren’t issued for a month or even many months. The losing side could then ask the full 12-member appeals court, or the U.S. Supreme Court, to consider the case, although there is no obligation for either court to do so.

Ultimately, if the reversal of Dassey’s conviction is upheld, the state would have to decide whether to put him on trial again or allow him to be released from prison.

Tom Kertscher , Milwaukee Journal Sentinel

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