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Why Brendan Dassey Can’t Get Out of Jail Even Though Federal Judge Overturned His Conviction

Federal Criminal Appeals: Lessons from Netflix’s “Making a Murderer” Brendan Dassey Case

How can a judge overturn a conviction as being wrongful and unjust, and the defendant still remain behind bars? That’s what is happening in the Brendan Dassey case — and it’s a great lesson to all of us on how the criminal justice system works.

Lessons in Federal Criminal Appeals: Things Texans Can Learn from the Brendan Dassey Defense

Netflix’s “Making a Murderer” series has spotlighted the case of Steven Avery and his nephew, Brendan Dassey (we’ve discussed that series in an earlier post). It’s bringing a big national spotlight on how wrongs can happen in the criminal justice system (like false confessions). Many believe that Avery and Dassey are innocent men, railroaded by the system.

The Dassey case was tried in Wisconsin, and recently his Wisconsin state court murder conviction was overturned. However, it’s been overturned and tossed out by a federal judge, not a Wisconsin state court.

The same thing can happen in Texas. In fact, it happens all the time. Experienced Texas criminal defense attorneys know to fight for justice in state law matters over at the federal courthouse, just like Dassey’s lawyers did.

This is because federal law exists to protect against wrongs done in state court cases. If a state conviction violates federal law — particularly the federal constitution and its Bill of Rights — then the relief for that wronged defendant may come from the federal system, not the state.



Lessons from Brendan Dassey’s Petition for Help in the Federal Court

Among the lessons in Netflix’s “Making a Murderer’s” Brendan Dassey case:

1. The latest development in the Brendan Dassey case is an example of how powerful prosecutors can be.
2. It’s also an example of how things like bail don’t always work to get someone their freedom — even when they have been deemed not guilty of the charges against them and wrongfully put behind bars.
3. Finally, it’s a demonstration of how vital a dedicated and resourceful criminal defense lawyer and legal team can be. These defense lawyers have taken their fight to federal court here, of a state case, and won. Now, it’s the Wisconsin prosecutor who is trying to reverse the federal judge’s decision which agreed with the defense’s arguments.

Here’s what is happening now.

Federal Criminal Appeals Process in Brendan Dassey Overturned Conviction

1. Notice of Appeal

On September 9, 2016, the Attorney General for the State of Wisconsin issued a press release to announce that his office was appealing the decision of the federal judge who had overturned the conviction of Brendan Dassey.

From his press release:

“We believe the magistrate judge’s decision that Brendan Dassey’s confession was coerced by investigators, and that no reasonable court could have concluded otherwise, is wrong on the facts and wrong on the law.” said Attorney General Brad Schimel. “Two state courts carefully examined the evidence and properly concluded that Brendan Dassey’s confession to sexually assaulting and murdering Teresa Halbach with his uncle, Steven Avery, was voluntary, and the investigators did not use constitutionally impermissible tactics.”

So, the Wisconsin prosecutor is going to keep arguing that there was no false confession by the young man. But he’s not arguing that yet. He’s announcing that to the media. All that he has had to do right now is file a single piece of paper in the federal court where the conviction was overturned.

This document is called the “Notice of Appeal.” It is a formality, the first step the government must take in appealing a decision that went against them. It’s notifying the federal district court and the federal appeals court that the State of Wisconsin isn’t happy with the decision and will be asking the appellate court to grade the papers of the trial court.

Here is what the Notice of Appeal in the Brendan Dassey case looks like:

Notice of Appeal filed in Brendan Dassey v. Michael L. Dittman by Michael Lowe, Attorney at Law on Scribd

2. Briefs Will Be Filed

The actual arguments will be made on paper. These are called “briefs” and they are filed by both sides. A brief has all sorts of rules attached to it. The kind of font that is used, the number of pages, how the footnotes are to appear in the document, what the front page should look like and the information it must contain, what the Table of Contents should include, etc. Federal procedural rules are very strict on how briefs are to be put together.

As the U.S. Attorneys’ Appeals Resource Manual explains, “The appellate brief is the central focus of an appeal.”

The State of Wisconsin through its lawyer, the Wisconsin Attorney General, will file its Principal Brief, with the United States Court of Appeals for the Seventh Circuit. In this document, the prosecution will argue all its legal points, and the reasons why it was wrong under the law for the conviction of Brendan Dassey to be overturned by the federal judge.

The appellee, here Brendan Dassey, will then file his Brief in Response, which will counter the arguments made by the Wisconsin prosecutor. The State may or may not file a final brief, which is limited in how long it can be, in reply to the defense brief.

3. No New Trial at the Appeals Court

There will not be any witnesses taking the stand at the Court of Appeals. No documents will be introduced into evidence there. The appeals court will read the briefs for the legal arguments of both sides, and it will review the complete trial transcript as it is compiled by the lower federal court.

All the testimony transcribed at trial by the court reporter? That’s page after page of evidence contained in the transcripts that the appeals court will read. Expect the justices to have read and digested all of this.

All of the documents entered into evidence at trial? That’s sent up to the appellate court, too. Those justices, assisted by their staff, will look at the physical evidence as it was admitted into the case. The videos made of Brendan Dassey that were admitted into the trial and seen by the trial judge? The appeals court will have the opportunity to look at them too.

The appeals court will review all that the trial court judge saw and read and heard as part of their decision making. They will not entertain anything else.

4. Status Quo Remains During the Appellate Court Review

Here’s the kicker: once the Notice of Appeal was filed, the system went into action. The judgment which overturned the conviction of Brendan Dassey is not going to be acted upon yet because it’s being reviewed by the higher court. So, Dassey sets in his cell today even though there is a ruling that he has been wrongfully convicted and should never have been put in that prison cell.

And as for Netflix?

Those responsible for “Making a Murderer” have gone before the press, too. They are going to keep telling the story, on film.

Read the interview with series creator Moira Demos as reported by Variety in an article written by Elizabeth Wagmeister, entitled “Making a Murderer’ Creators Respond to Brendan Dassey’s Overturned Conviction Appeal.”

For more information on federal criminal appeals, check out our web resources as well as Michael Lowe’s Case Results and his article,


The Cruel Reality Of Criminal Evidence: It’s Just Not That Reliable – Dallas Justice Blog

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