En Blanc Hearing

Angenette Levy‏Verified account @Angenette5 4m4 minutes ago

This en banc hearing is very interesting. Nirider says cops should have known Brendan had limitations b/c he couldn't spell some words

Angenette Levy‏Verified account @Angenette5 2m2 minutes ago

Judge Sykes says Nirider is asking them to make new law regarding juveniles. Nirider disagrees #MakingAMurderer

Angenette Levy‏Verified account @Angenette5 2m2 minutes ago

Judge Wood asking what cops should have done? What should they have known about Brendan's limitations #MakingAMurderer

Angenette Levy‏Verified account @Angenette5

Luke Berg back up on rebuttal. One judge takes issue with Fassbender saying "I'm not a cop right now. I'm a father" #MakingAMurderer

Angenette Levy‏Verified account @Angenette5 41s41 seconds ago
More
Berg: SCOTUS has held that minor lies are not coercive. Wood says you say things to an adult differently than a kid

https://twitter.com/Angenette5

ETA a few more tweets

Myra Sanchick‏Verified account @myrasanchick 2m2 minutes ago

Arguments over. Court will rule on Dassey in the coming weeks or months



It's over. Will watch for it to be uploaded and will post as soon as I see it or check this link http://media.ca7.uscourts.gov/oralArguments/oar.jsp year: 16 number: 3397

http://media.ca7.uscourts.gov/sound/external/rs.16-3397.16-3397_09_26_2017.mp3


If anyone has a problem loading that link, it will probably be uploaded here too: http://www.stevenaverycase.org/dasseys-appeal-documents/

I have listened to it... I'm not sure what to think, both sides got tough questions, I have a feeling that most judges probably had their minds made up before the hearing (3 of the 7 judges have already ruled previously and we know what they think already). I wish we had video as well because I have a hard time figuring out who is talking when the judges were asking questions lol I know Judge Wood was asking lots of questions, and she is the one that said that the officers made her skin crawl when watching the video.

I'm not sure what Judge said it, but one said that what Kachinsky did was indefensible and that Brendan would have been better off without a lawyer, when the State replies with Kachinsky was removed, the just said that the damage was already done.

Seemed to be a bit of focus on how Brendan would have known some "facts", which Nirider says of course he was following the case, a family member was arrested and charged, it was said to happen on the property where they lived, the family business was affected, etc. (paraphrasing) I will have to go back and read Hamilton's previous dissenting opinion, but it stood out to me that he asked about the shell casings and when they were found in the garage, Nirider told him it was back in November 2005 (would have been a "known fact" by someone close to the family/case), it seemed to me that he might have been expecting a different answer... just stood out to me.

Oh and within the first few minutes, the State attorney said the officers "nudged the confession out of Dassey", at least a few of the judges made comments ... "he did not", "oh my" "really?" (it was in a PFFT kind of way).

At some point, Berg replies to a judge saying that the statements in prior interviews with Brendan could be taken in the totality of the circumstances... after which the judge points out that Fassbender says during an earlier interview that they are not acting as officers but as fathers (Sure would have been nice to have the evening of Feb. 27th's interviews recorded from the hotel that they stashed Brendan and Barb in)


From tweets, Judge Kanne didn't ask any questions and stayed silent through the whole hearing.

Haven't listened to it yet, but am about to. Just confirming that it had been uploaded and is available to listen to at Missy's links. I'm glad this stuff became available so quickly.

It may have been judge Easterbrook that asked the question about the shell casings, not Hamilton... according to someone that was there, he asked lots of questions. Would explain why I thought he was surprised by the answer, Hamilton should have heard/read this previously, Easterbrook might have been surprised lol IMO the shell casings in the garage... links the shooting in the head in the garage... and why investigators would want to put TH in the garage and steered their questioning that way, Nirider brought up the fact that BD said that it happened outside of the garage first.

In the beginning I did notice that Berg was stumbling a lot trying to find the right words to start with~~and one male judge (not sure which one) sort of helped him get out what he was trying to say. He then started to flow more fluently. One or more female judges chided Berg about why they were there as he was starting with stuff like he was at the criminal trial and one of the female judges had to remind him why he was there and to basically focus on the issue at hand.

Transcript, first 11 minutes.

Thankyou for posting up the transcript BCA. I agree the hearing was interesting and now we wait again for the outcome.

In case anyone is interested, because it was brought up a few times during the hearing and I was googling as I was listening...

Brumfield vs. Cain https://supreme.justia.com/cases/federal/us/576/13-1433/



Statute 2254 (d) (1) and (2) - I can't recall at the moment, but while Nirider was arguing, they kept saying (d)(1) or (2) or 1 and 2 ... this is what they are referring too.

https://www.law.cornell.edu/uscode/text/28/2254

28 U.S. Code § 2254 - State custody; remedies in Federal courts

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

I'll finish off the transcript when I have so free time.

But, I have a question??

Should Berg be arguing with the judges like he did? Seems arrogant to me and it if were me, I'd be put off by his display of arrogance and defensive stance.

missy1974 said:

In case anyone is interested, because it was brought up a few times during the hearing and I was googling as I was listening...

Brumfield vs. Cain https://supreme.justia.com/cases/federal/us/576/13-1433/



Statute 2254 (d) (1) and (2) - I can't recall at the moment, but while Nirider was arguing, they kept saying (d)(1) or (2) or 1 and 2 ... this is what they are referring too.

https://www.law.cornell.edu/uscode/text/28/2254

28 U.S. Code § 2254 - State custody; remedies in Federal courts

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Click to expand...

Wonder how all that will affect BD because he was granted habeas relief? So much legal jargon to wrap our heads around, lol.

I felt fairly confident by listening to the en banc arguments that at least a couple of the judges were siding with Brendan Dassey, and the states handling of the interrogations by the investigators.

BigCityAccountant said:

I'll finish off the transcript when I have so free time.

But, I have a question??

Should Berg be arguing with the judges like he did? Seems arrogant to me and it if were me, I'd be put off by his display of arrogance and defensive stance.

Click to expand...

Good question, and i feel at least one of the judges was getting annoyed with him.

Ok. I have listened to it. Here are my ideas.

First and foremost, one of the male judges asked what Nirider suggests investigators do when interrogating someone. The police do not have full psychological profiles/intelligence evaluations in front of them (sometime around the 35 minute mark). They cannot, therefore, be held responsible if they do not know they have someone with developmental delays in front of them. But then Nirider points out that at some point they do have some indication Brendan is slow and the Judge says something like "Ok. But what should they do? What should they do?"

The answer is....The thing they are supposed to do. I am not a lawyer, but SURELY there is a procedure for handling special needs suspects. That is the thing they are supposed to do. There is already a protocol for that situation. This isn't rocket science. The judge seems to be complaining that treating people of different mental ability is tying the hands of the police....but it is already accepted and obvious that differently able people need different treatment. This judge seems angry at this idea?

And in situations where this is not clear cut, uh....still maybe treat the situation the same way. Suspects are supposed to be given the benefit of the doubt. At least in Brendan's case, time was not an issue, take your time, do things right. They weren't going to be rescuing a hostage. They weren't looking for a missing person. If there is any doubt, do the thing that ensures justice, even if it is a little slower. The judge was essentially asking "*Scoffs* Are the police supposed to follow the rules and make good judgment calls in cases like this?"

I don't know why "Get this kid a lawyer" isn't the baseline action. It is absurd that a child would have to ask for a lawyer before they get one. Brendan wasn't old enough to buy cigarettes, but he was old enough to confess to a crime that could put him in prison for life? You can't sign a contract, unless that contract might get you imprisoned or executed by the government? How does that make any sense? Adults suck at police interrogations; virtually none take the police up on the "You can leave at any time" offer. They suck at understanding their miranda rights, and Brendan is supposed to be a legal scholar? Adults stay because they feel like they cannot leave even though they are allowed to, yet a child is supposed to be more resilient than adults? There are 6 foot tall 250 pound men who crumple under this kind of scrutiny and are scared to death in this situation.

Berg tried arguing that Kachinsky wasn't working with the police....isn't that a flat out lie? He made Brendan come up with a timeline that the police would accept, as opposed to the one Brendan put forth. He flat out rejected Brendan's own testimony and made him come up with something else. He counseled Brendan to furnish the police with false statements and tried to foist a guilty plea on Brendan that Brendan didn't want. He was working in someone else's interest while "hired" by Brendan.


I'm not very fond of Nirider's "the truth shall set you free" argument. I feel it is pretty weak. I haven't looked at Brendan's confession in a long time (can you blame me?) but I feel like a stronger case can be made for coercion, though if your hands are tied to "they have to make a very specific promise", then I guess she is stuck and that standard is pretty stupid. Most of human communication is done in a non-explicit manner, at least with face to face communication. So much of human interaction is body language and figurative speech. Figurative speech like "The truth will set you free" or "I promise I won't leave you high and dry."

One judge commented that the police would surely have worked with him and gotten him a lighter prison sentence if Brendan testified against Steven, but:
1) The judge cannot know that. He has never been to the alternate reality where that happened.
2) That is coercive, give us what we want or we will wreck you...If someone other than the police did that, it would be called extortion.
3)That totally assumes that Brendan is 100% guilty. If he is possibly innocent, he has no good option. If he testified against Steven, he would not have been able to argue he was innocent. If he chooses to not testify, piece of trash judges will later blame him for not testifying and confessing in court.
4) The fact that this argument was even made is galling. Holy cripes. This is how you get "jailhouse snitch" testimony and why that testimony is always so dubious.

I do agree with Nirider's point that Brendan kept expecting to go back to school later that day shows he had limited understanding of what was happening and thought going along with them would allow him to get out. I think that is abundantly clear to every human being that watches the footage of the interrogation. He thought he would be allowed to go if he went along with the police and the police did little (if anything) to disabuse him of this notion, at least until he confessed to what they wanted him to.

I do like her ability to draw upon court precedent, she is very good at that. Berg, not really. He said "the supreme court said" multiple times, but I don't know if he always made it totally clear which cases he was appealing to. I think Nirider did a solid job of making it clear that "coercion" has been defined legally as coercion from the suspect's point of view. How a reasonable person would view tactics from the shoes of the suspect, not from the perspective of the police. Though, whether or not this will influence the decision is anyone's guess.

The "You're trying to make a new law!!! YOU'RE MAKING NEW LAW!" Argument struck me as...odd and jarringly out of place and the judge kept talking over Nirider when Nirider was trying to explain. The judge just wanted to harangue, I guess.

I think it was fully apparent there were a couple judges trying their best to make the case that Brendan was guilty.

In the end, I got the sense that there were 3 for Brendan, and 3 against Brendan and the voices were so similar I couldn't fully recognize any other different voices. It wasn't nearly as one sided as I was hoping. It seems like there is one judge who will tip the balance either way.

Sorry it is so long, just my thoughts from my listen through.

BigCityAccountant said:

I'll finish off the transcript when I have so free time.

But, I have a question??

Should Berg be arguing with the judges like he did? Seems arrogant to me and it if were me, I'd be put off by his display of arrogance and defensive stance.

Click to expand...

He really struck me as off-putting. Not just from arguing with the judges, that might be a real no-no in an en banc hearing, maybe not, but he seemed to have a tone of voice that was like "It's pretty obvious that what I just said is true and this discussion is a waste of time". I've known people like that, I may even be people like that. But in my defense, I'm always right and disagreeing with me IS a waste of time. Haha

You know, the case against Brendan really bothers me. I have mentioned in the past that I have an Autistic son. He is not quite as old as Brendan, but honestly if I were to ask those same questions to my son with suggesting like the detectives did, he would probably give me the very same answers as Brendan and he isn't even as old as Brendan. (Oh, by the way, I wouldn't do this, just saying)

There was no way, no how Brendan was EVER going to testify against Steven. There is NO WAY that his story would EVER stay the same, just like we saw in the interview tapes. The trial would go much similar to what you saw on those tapes. That would not have been good for the prosecution. They must have been in heaven when they got the best of all worlds, the coercion that leads to the confession, which leads to them not having to call him as a witness to testify against Steven. The stars just aligned perfectly for them. They got what they wanted and how things went down was EXACTLY what they wanted. So very very sad, but true.

@ Saul Vesalot, you make some really good points in your post. I have personally never heard argument in an en banc hearing before so it's difficult to gauge what is expected in this type of hearing, and if what we have read about them they are rare. I also thought LN could of made some better points about Dassey's coerced confession, but she is very well versed in case law and put forth some good analogies IMO. What was it that actually needed to be proven legally to convince that panel of judges that BD's confession was within legal bounds of procedure? There is only so much that an attorney can convince from.

It was noted by one of the judges, that in Brendan's retelling of what he did to TH in the confession, that he was "all over the map" as she put it. So he couldn't have done all those things and there were too many holes in what he was telling. That would surely i hope tell the panel of judges that BD had no idea of what happened to TH, so must of been a made up narrative?

A great read on interrogations of suspects with mental illness, doesn't state with disabilities, but it was published in 2004 by the American Psychiatric Association.

https://www.reid.com/pdfs/redlich.pdf