Monday, August 21, 2017

Seventh Circuit Court of Appeals Grants Wisconsin Justice Department's Request for En Banc Rehearing in Case of Brendan Dassey, of Netflix's "Making a Murderer" Fame

By Josh Wolff
Law Clerk to Hon. Eileen O'Neill Burke, Illinois Appellate Court, First District

The Netflix 10-episode documentary "Making a Murderer" detailed the story of Steven Avery, a Wisconsin man who had been wrongfully convicted of sexual assault and attempted murder. After serving 18 years in prison for the crimes, Avery was released in 2003. Two years later, however, Avery was arrested for allegedly murdering Therea Halbach. During the investigation, the police interviewed Avery's nephew, 16-year-old Brendan Dassey, who confessed to helping Avery commit the murder. 

Both Avery and Dassey were charged and eventually convicted of Halbach's murder. Dassey was sentenced to life in prison with the possibility of parole. The Wisconsin Court of Appeals affirmed his conviction, and the Wisconsin Supreme Court declined to review his case. 

In 2015, Dassey filed a writ of habeas corpus in federal court, seeking to be released from prison or a new trial. He alleged that various of his constitutional rights were violated, but in particular that his confession to the police had been coerced in violation of the fifth amendment. In 2016, a federal magistrate judge agreed, finding that his confession had been coerced. Accordingly, because his confession was unconstitutional, the judge ordered him to be released from prison.

The Wisconsin Justice Department appealed that decision to the Seventh Circuit Court of Appeals, which stayed Dassey's release pending the appeal. In June 2017, the Seventh Circuit affirmed the magistrate judge's decision in a 2-1 opinion, with Judge Hamilton dissenting. It further granted Dassey's writ of habeas corpus unless the State of Wisconsin elected to retry him within 90 days of the Seventh Circuit's final mandate. 

The Wisconsin Justice Department requested a rehearing en banc in front of the entire panel of the Seventh Circuit. The court granted the request and vacated its original decision. Now, on September 26, the full Seventh Circuit will hear Dassey's case. 

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