Wednesday, September 27, 2017

MUSINGS ON DASSEY 7TH CIRCUIT EN BANC ARGUMENT

When Judge Hamilton originally dissented from the June 2017 panel decision affirming the grant of the writ of habeas corpus, I foresaw that the 7th Circuit would grant a rehearing en banc.  Frankly, Judge Hamilton is now the major force on the Court.  Knowing that the senior judges are not allowed to sit on a rehearing en banc unless they were on the original panel (Judge Ann Williams), my count of the who would be expected to sit en banc was bad for Dassey.

I figured that he would need Judge Posner to have a chance to prevail.  Then Posner unexpectedly resigned two weeks ago.  I was not optimistic.

Yesterday for some reason, Judge Flaum did not participate (I  had counted him as a law enforcement vote).  That left 7 judges to consider the case.  The majority of the question was done by five of the judges: Wood, Williams, Rovner, Hamilton and Sykes. Kanne did make some inquires, and strangely enough, Judge Easterbrook was fundamentally silent (Sometimes it is hard to tell who is asking questions as the oral argument is limited to sound and not video). 

It seemed to me, that both sides were trying to persuade Easterbrook.  My prediction is that he will be the swing vote.  Wood, Williams and Rovner will vote to uphold the district court, granting Dassey his writ  It was clear that Judge Sykes is going to vote to reverse and Judges Hamilton and Kanne will as well.  The vote will be 4-3 one way or the other.

A final note.  Most media reports have not mentioned that portion of the argument addressing the complete failure of Dassey's original counsel to be his lawyer and not an extension of the prosecution. Pretty clear, it was in street parlance, a V-6.  A walking violation of the 6th Amendment.

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