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Brendan Dassey’s conviction has been overturned: what now for Steven Avery?

Posted by
Dave Fawbert
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It's a result which will feel like justice for everyone who has watched the phenomenally successful Netflix show Making a Murderer: on Friday 12 August, Brendan Dassey had his conviction for intentional homicide overturned by a Wisconsin judge.

Dassey was originally convicted alongside his uncle Steven Avery for his part in the murder of photographer Teresa Halbach in 2005, where he was found guilty of the crime, as well as second degree sexual assault and mutilation of a corpse, the following year.

However, it was clear to viewers of the documentary, which premiered late in 2015, that his confession to prosecutors that formed a large part of the evidence against him, was highly dubious in the manner it was obtained. Despite state courts rejecting appeals in 2013, a federal Magistrate Judge, William E. Duffin overturned the conviction, meaning that Dassey, now 26, will be released within 90 days.

So what now for Dassey, and what does this mean for Steven Avery, himself looking to overturn his conviction?

This is not necessarily the end for Dassey's ordeal

The new judgement does not mean that Dassey cannot be tried again. It is a writ of habeus corpus relating to the idea that Dassey's confession was unconstitutional, therefore unsafe, and means his conviction is quashed. However, there are still two avenues which could lead to Brendan Dassey remaining behind bars: prosecutors could appeal against the federal judge's decision; or they could press for a retrial.

However, an appeal succeeding seems unlikely; the judge's words about the confession were damning, criticising investigators for telling Dassey "he had nothing to worry about" when talking to him. "These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey's age, intellectual deficits, and the absence of a supportive adult, rendered Dassey's confession involuntary under the Fifth and 14th Amendments."

He also hugely criticised Dassey's defense lawyer Len Kachinsky, calling his conduct "inexcuseable both tactically and ethically. It is one thing for an attorney to point out to a client how deep of a hole the client is in. But to assist the prosecution in digging that hole deeper is an affront to the principles of justice that underlie a defense attorney's vital role in the adversarial system."

If the appeal is successful, though, the original conviction will stand and Dassey will remain in prison for the rest of his life, with his earliest chance for being considered for parole coming in 2048.

What about a retrial?

If prosecutors refile charges within 90 days, then Dassey will remain behind bars and a new trial will begin. So what would Dassey's chances be?

Without that confession - which is now clearly inadmissable and was the central plank of their case - considering the total lack of forensic evidence, and a more competent defense lawyer present (Kachinsky was also criticised by the judge for spending more time talking to the press than to his client) it is hard to see a retrial resulting in a guilty verdict.

Of course, there is every chance, given their conduct so far, that they will press for a retrial regardless. But Brendan Dassey, now 26, should be very confident of his chances of permanent freedom in the near future.

So does this decision help Steven Avery's case?

Steven Avery's legal team, now headed up by wrongful convictions specialist Kathleen Zellner who took the case on in January, stated, “We are thrilled for Brendan Dassey that his conviction has been overturned. We fully expected this outcome from an unbiased court that carefully examined his confession.”

Zellner added, "I was just visiting Steven Avery and he is so happy for Brendan. We know when an unbiased court reviews all of the new evidence we have, Steven will have his conviction overturned as well.”

But Avery's case is altogether more complicated. To begin with, he was tried separately; the Dassey ruling will have no direct impact on his attempt to have his conviction overturned - and Dassey's confession was not used as evidence in the Avery trial (although Zellner is arguing otherwise).

In addition, he was convicted based on a wide-ranging array of forensic and circumstantial evidence - his new legal team will have to cast enough doubt on a healthy amount of this to appeal successfully.

So how are they getting on with that?

Avery's team, led by Zellner, were originally due to file their appeal on 1 June; however, they then requested a 90-day extension, meaning that it is due to be submitted on 29 August. Commentators have read this two ways: either the team are being completely exhaustive in their search for new evidence, or they still feel they don't have enough to be successful.

Zellner has been vocal on Twitter since taking the case about the new evidence collected, while there have been a host of internet theories and suggestions of where to look for ideas to cast doubt on the prosecution's case.

The proof, as ever, will be in the pudding, and we should know later this month the outline of the appeal, with Zellner's appellate brief - "a formal court document that lays out all of the arguments a petitioner or respondent plans to make on appeal" - due to be published online.

Zellner certainly appears bullish, if her Twitter account is anything to go by: