In 1967, Justice Abe Fortas and his magnum opus In re Gault transformed loose juvenile court proceedings into formal hearings that afforded children essential rights, forever altering the face of juvenile due process. Not since Gault and Miranda has there been a case so polarising in legal opinion, that the only way forward is new Circuit or Supreme Court precedent. That case is the wrongful conviction of Brendan Dassey.
A year ago, today, a Judge for the Eastern District of Wisconsin, Magistrate Judge William.E. Duffin granted the petition for Brendan's writ of Habeas Corpus determining Brendan's confession was rendered involuntary under the Fifth and Fourteenth Amendments - citing the Wisconsin Court of Appeals decision to the contrary was an unreasonable application of clearly established federal law. 365 days on, and the fight to uphold Judge Duffin’s unprecedented decision has never been more intense.
The ‘not so’ Special Agent Tom Fassbender and Sergeant Mark Wiegert alongside cohorts, a pasty poor man’s Victor Sifuentes, Len Kachinksy and sharing a love for Laura Ingalls type blue ribbons, private investigator Michael O’Kelly - colluded to coerce a textbook false confession from a highly suggestible, 16-year-old Brendan Dassey.
False confession experts, lawyers and pundits the world over, have painstakingly dissected Brendan’s false confession, with parties to Brendan’s Amicus brief, law interrogation training experts, Wicklander-Zulawski proclaiming the March 1st interrogation as the proverbial “what not to do”, highlighting the impropriety of the investigators practices.
When discussing criminal justice reform in the United States, one cannot do so without addressing a seismic shift in interrogation techniques, and the eradication of the archaic Reid Technique. There is no coincidence that both the Reid process and the sequential steps of a false confession come in threes.
AEDPA and Habeas
Forward 4,182 days, google Brendan Dassey and the SERP results act as a timeline of abuse at the hands of a broken justice system. The State of Wisconsin continues to malignity pursue Dassey through the meandering appeals process, via State and Federal courts. While the enfeebled prosecutor of 2007, continues to conduct his macabre dance of untruths in his courtroom of choice – the media. His audience, no longer captive, now unforgiving and informed.
Where once, Dassey grappled for a 7th Circuit Court affirmation, he now finds himself caught in a meretricious fight for his freedom. With a snarling State and the high burden of the AEDPA standard of review to counter, I ponder the majority’s decision and their application of the pre-AEDPA standard – de novo. So where does that leave six Republican and three Democratic appointed judges, clothed in ideologies that can be found in the annals of past opinions, in what is a highly subjective review?
Will the 7th Circuit set Precedent Between Psychological and Physical Coercion?
In granting an en banc hearing, the majority is either leaning towards one of two standards. The first being that the en banc is necessary to secure or maintain uniformity of the court’s decision, the second, the proceeding involves a question of exceptional importance. The wrongful conviction of Brendan Dassey I fear was always going to be a question of exceptional importance, and perhaps will leave an indelible mark on future habeas proceedings.
The majority cited Gilbert v. Merchant, 488 F.3d 780, 791 (7th Cir. 2007), In re Gault, 387 U.S. 1, 45 (1967)) and Haley v. Ohio, 332 U.S. 596, 599-601 (1948), amongst many others; will Dassey vs Dittman No: 16-3397 ensure the many protections as idealised by the great Justices such as Justice Fortas who had written in 1966 “ If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair."
En Banc Hearing
On September 26th at 10.00am, in the Ceremonial Courtroom Room 2525 of the United States of Appeals for the Seventh Circuit, in Chicago, Illinois, the entire 7th Circuit panel of Judges will hear en banc, Dassey vs Dittman. Reform begins with an en banc affirmation.
As Marsha Levick said “This case is of exceptional importance to the national community of advocates seeking to defend the constitutional rights of children, particularly children.” Free Brendan Dassey.