Thursday, June 22, 2017

Brendan Dassey, Wisconsin state courts, and the state of legal education [updated below]

The 7th Circuit Federal Court of Appeals recently affirmed the reversal of Brendan Dassey’s conviction.  The decision is 128 pages.  The main reason it’s so long is this: the Wisconsin appellate court failed to do any actual analysis when it originally affirmed Dassey’s conviction; instead, it merely repeated the applicable legal standard and then jumped to its conclusion — all in two very short paragraphs.  Therefore, the Seventh Circuit had to analyze everything from scratch.  This is something we Wisconsin criminal defense lawyers have to deal with regularly from some of our state’s trial and appellate courts: judges reaching their decision first, and then saying anything — or in Dassey’s case, nothing — to justify their predetermined outcome.  But what if I’m wrong?  What if the Wisconsin appellate court judges didn’t make up their minds ahead of time and were actually doing their best to reach a reasoned conclusion?

Well, in that case, the news is just as bad.  Giving the judiciary this benefit of the doubt leads to only one conclusion: law schools are graduating students who can’t even “think like lawyers,” let alone actually practice law.  And these students aren’t just graduating; many of them are ascending to the bench.

That’s why I always cringe when I hear about law schools reinventing themselves to train students in the practical aspects of the legal profession.  Given that most professors — particularly those hired in the last couple of decades — have never practiced law (see here), and the law school clinics taught by practitioners are merely sideshows to the main curriculum, law schools should set a far more modest goal for themselves.  They should focus on teaching an actual body of law and developing basic legal reasoning skills.

For law school reform so basic that even today’s newly-hired, inexperienced law professors could implement it, see my article Three Rules for Educating Tomorrow’s Lawyers.  And for more on Avery’s and Dassey’s cases, see my latest book, Convicting Avery.

And finally, as for Dassey’s 7th Circuit victory, the answer is probably a combination of the two explanations, above.  That is, the Wisconsin appellate court probably knew instantly that it was going to affirm Dassey’s conviction.  But, its legal reasoning skills were so poor that it couldn’t even muster a superficial, disingenuous analysis to support its predetermined outcome.  The result: conviction reversed by the federal courts.  The lesson: from the perspective of a conviction-affirming state appellate court, a little legal knowledge can be a dangerous thing.

Update:  The state is seeking a full panel review of the Seventh Circuit's 2-1 decision.  If the state's request is granted, the issue will be the same.  The full court wouldn't be deciding whether Dassey's confession was true or false, or whether it was coerced or voluntary.  Dassey would win hands down on both issues.  Rather, the issue is whether the bizarre, conviction-affirming AEDPA standard requires the Seventh Circuit to give deference to the state appellate court's two very short paragraphs.  Or, as the dissenter in Dassey's 2-1 victory believes, "AEDPA deference still applies when a state court offers no reasons, facially defective reasons, or incomplete reasons for its decision."  As usual, the law sets a very, very low standard for judges.  Whether the state appellate court's two paragraphs were enough to hurdle this amazingly low bar, only time will tell.    


  1. Ya, the wisc DOJ SEEMS incredibly inept.
    Anyone who sees that interrogation can almost immediately see it was coereced.