- Jim Hagerty
LITTLE HOPE FOR WISCONSIN DOJ IN BRENDAN DASSEY CASE [OPINION]
A lot has transpired this month in the two criminal cases connected to the Netflix docu-series Making a Murderer.
Steven Avery’s attorney, on June 7, filed a 1,200-page motion for a new trial, accusing prosecutors and law enforcement of several civil rights violations. While the developments in that murder case grabbed most of the headlines, significant developments are swirling in Brendan Dassey’s bid for post-conviction relief, one that will likely leave the Wisconsin Department of Justice with little hope outside of successfully arguing that the Seventh Circuit Court of Appeals in Thursday’s ruling that his confession was voluntary.
Wisconsin Attorney General Brad Schimel has a difficult choice: build a new case against Dassey and retry him without the botched attempt by investigators Tom Fassbender and Mark Wiegert to use culpable knowledge to extract a confession; allow him to walk; or fight for the original 2007 conviction that will keep the now 27-year-old in prison for at least 31 more years. The latter is Schimel’s most sensible option, yet he is staring at a mountainous challenge and that is the amount of remaining evidence linking Brendan Dassey to the Teresa Halbach homicide. There isn’t any.
Even strong cases tried years after the crime are difficult. Retrials lacking both physical and circumstantial findings are different altogether. They are not only hard to prove in today’s modern world of criminal law, but more and more prosecutors are walking away from them even when there’s surety of guilt. And that’s where Brendan Dassey’s case lies. After Thursday, it shifted from whether he received a fair trial to whether the state is again able to prove he helped kill Teresa Halbach.
Unlike with the circumstances surrounding Steven Avery, the decision in Dassey’s case was not sparked by Making a Murderer. His fight began shortly after trial, the day Northwestern law professor Steven Drizin handed Laura Nirider, then a third-year student, a videotape of Dassey’s confession. They’ve since argued a total of three post-conviction attempts to free him. The same uphill battle is now in front of Schimel.
Millions of armchair detectives, web sleuths, and Netflix fans have been vexed by the one-sided docu-series; angry calls to excoriate key players who carried out this deplorable miscarriage of justice are at an all-time high. The question remaining among Making a Murdererviewers is why the appellate courts haven’t seen the obvious—that the defendants are innocent. A simple question. Yet, the answer is anything but.
Although it happens, overturning a criminal verdict reached at the trial level is no small feat. Because of the way the judicial system was created, higher courts will always attempt to give deference to the courts below them. Police, prosecutors, and other officers of the state are held to extremely high standards when they’re hired, and proving allegations against them comes with an even higher one, even in situations that appear to be obviously flawed. Post-conviction cases are complex and lawyers must choose their arguments meticulously. If the system was not set up this way, there would be little or no safeguard of the judiciary. For this reason, Dassey’s legal team has had a laborious 10 years, but the end result could shake Manitowoc County to its core and be a major step in uncovering grave mistakes in the Teresa Halbach case.
Homicide, Murder, and Viewpoints
Although they are often used interchangeably, the words “homicide” and “murder” are not the same. Homicide is the act of killing another person. Murder defines the criminal act of doing so. That said, there are three ways to look at the Making a Murderer saga. The first is to view the situation through the eyes of an investigator, focusing primarily on the homicide, not its two associated murder cases. This allows for a clear view of the evidence. Does it point to Brendan Dassey and Steven Avery? Or, does it lead somewhere else? Those are the types of questions answered by focusing on the killing.
The second way to survey the situation is to compartmentalize the homicide in order to focus on what unfolded in court. This is done by viewing the murder trials through the eyes of the jurists involved–the lawyers. It is a two-dimensional viewpoint because of where each murder case is within the legal process. The trial phase moves away from the “who done it” aspect toward the question, “Can the state prove it?” In both cases, Calumet County District Attorney Ken Kratz presented who he believed committed murder. He proved it both times, although he’s only one-for-two after Thursday’s ruling. That means in terms of Brendan Dassey, it’s back to the “who done it” drawing board unless the state decides to retry him. The case of Steven Avery is quickly moving in the same direction, at least in terms of what’s transpired since the docu-series premiered.
Taking the case in January 2016, Kathleen Zellner is not arguing a not-guilty plea on behalf of Steven Avery, but that he, too, was a victim of misconduct. She makes four arguments based on the 1963 Supreme Court case Brady v. Maryland, the ruling that requires discovery of exculpatory evidence. Zellner claims the state withheld, fabricated, falsified, and even destroyed evidence that pointed away from Avery even after parts of a dead Teresa Halbach showed up on his property.
Zellner has alleged four Brady violations and must only prove one to win him a new trial. Again, it is not about whether Steven Avery killed Halbach or whether the state can prove it. It is about whether his Constitutional rights were violated.
The third way to view the homicide and two murder cases is to look at the situation through the eyes of a juror. This comes with a significant degree of difficulty, especially for those who have watched the documentary and combed through information not presented in court. A comprehensive overview is possible, though, by reading trial transcripts, only focusing on the evidence presented.
As the Seventh Circuit noted, Kratz’s case against Dassey hinged solely on the three-hour barrage of questioning that became the piecemealed confession drawn from at least three different versions of how the DA claimed the crime occurred. At Avery’s trial, the SUV, key, blood, bones, and DNA were among the physical evidence that connects him to the killing. Yet, Jerome Buting and Dean Strang presented a slightly different case than the one Zellner is building on appeal. Each claims the evidence was planted, although Strang and Buting were not as specific. Their goal was to present just enough to cause reasonable doubt in the jury box.
En Banc or Bust
Brad Schimel’s next bid to uphold Dassey’s conviction will begin with a motion for an en banc hearing that will allow him to present his argument to the 12 judges of the Seventh Circuit, not just the three-judge panel that handed down Thursday’s decision. Arguments heard en banc are usually make-or-break attempts before taking cases to the Supreme Court. In granting an en banc hearing, the court will decide if a case is of high public importance, and that the lower three-judge panel was in error or presented a conflicting decision. In other words, there is a strong chance deference given to the lower panel will prevent further argument in the Seventh Circuit, especially because there is nothing implicating Dassey outside of his confession.