In a stunning conclusion and possibly the first of its kind for a television series, a convicted murderer has been given a second chance. A federal judge Friday overturned the murder and sexual assault convictions of Brendan Dassey, one of the men featured on the Netflix documentary series, “Making a Murderer.” In his 91-page opinion, Judge William E. Duffin (E.D. Wisc.) ordered that Dassey be released or retried within 90 days.
Convicted as a juvenile in 2007 of the murder and sexual assault of a 25-year-old photographer, Dassey was serving a sentence of life in prison. He appealed the conviction in state court and was denied relief. The federal court, however, found that the cumulative errors of investigators and Dassey’s counsel amounted to constitutional violations warranting a new trial. Additionally, Dassey’s coerced confession was obtained in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution.
The Netflix series turned the national spotlight on the case. Though the producers may not be responsible for Friday’s verdict and the court’s opinion, the program possibly generated enough public opinion and compassion to elevate the errors which led to Dassey’s wrongful conviction. Dassey’s attorney, Steven Drizin of the Northwestern School of Law, acknowledged the documentary’s importance of putting the case in a new context.
The case sparks a turning point in both American jurisprudence and journalism. In a country where social conventions swing like a museum pendulum, the Netflix series has raised controversy on both sides of the bench. It could not have come at a better time as the paradigm is shifting slowly from ‘lock ‘em up’ policies to a more just and compassionate criminal justice system.
In the past several decades, Americans have taken a harsh perspective when it comes to accused criminals. In the 1990s during the Clinton era, a provision of the Anti-Terrorism and Effective Death Penalty Act – the AEDPA – that had nothing to do with either terrorism or death penalties made challenging criminal convictions using a federal writ of habeas corpus nearly impossible. The AEDPA and state court rules shifted to a time bar system of justice – meaning it did not matter how innocent a convict was, if he was out of time to appeal, no one cared about the facts.
Instead of justice balancing the scales and weighing evidence, politically driven motives and the AEDPA turned her into an administratrix of time. Once the timer clicked on a case and signaled time was up, judges and lawyers issued form rejections. Based on the AEDPA statute and local rules, their hands were tied – a conviction was a matter of finality, regardless of facts, guilt, innocence, miscarriages of justice, or constitutional violations.
The AEDPA and many state post-conviction collateral relief statutes provide for an extremely limited exception to the time bar rule. Again however, the exceptions, like the AEDPA, are so narrowly tailored, that relief is a legal fantasy in most instances.
In the late-1700s Great Britain, Edmund Burke coined the use of Fourth Estate in reference to journalists who sat in the galleries at Parliament. It was the journalists who could keep a watchful eye on the government business. Now, the so-called Fifth Estate, in the form of two independent journalists collaborating on the Netflix series, has turned a watchful eye to the judiciary. Their scrutiny arrives amidst long-overdue reform movements.
Luckily for Brendan Dassey, “Making a Murderer” generated enough interest to have the additional scrutiny that was needed for a successful challenge. In a criminal justice system where Innocence Project estimates suggest that up to 125,000 prisoners in the U.S. are actually not guilty, there is a growing need for extrajudicial resources to assist with cases. While Brendan Dassey has yet to be retried, at least moving forward, he will perhaps be treated with the appropriate fairness and constitutional protections he should have been afforded in 2007.
Meanwhile, thousands of men and women languish in American prisons – unable to afford the resources or meet the stringent time bar requirements. For them, there is no “Making a Murderer,” but there is the hope of actual innocence claims.
In 2013, deciding McQuiggan v. Perkins, the U.S. Supreme Court ruled that in cases where a defendant proves actual innocence, he can overcome the procedural time bars. While proving actual innocence is one of those nearly insurmountable tasks, the ruling, at minimum, gave some convicts the needed open door into court to present evidence – previously unavailable witnesses, DNA comparisons, or other information that may have been preserved, but not able to be used because of time bar rules.
Criminal defense attorney Karin Riley Porter commented, “While there may be widespread disagreement over the Netflix series and the end result for Brendan Dassey, it is better to have controversy than to have an innocent man or woman sit in prison. Conviction of one not guilty, or a conviction gained by ill means – whether it be brutal police tactics, coercion of the infirm, or constitutional violation – must not be allowed to stand, no matter how much time has passed or how horrendous the alleged crime.”
Netflix producers took a tremendous gamble. It is a gamble that paid off not only for Brendan Dassey, but for any accused person in the country. Friday’s court ruling, which may not have been predicated solely on “Making a Murderer,” sends a powerful message that society will not and cannot stand idly by when lives hang in the balance. Instead of the media merely condemning the accused for ratings, “Making a Murderer” journalists contributed to the reform that is needed so that instead of thousands of innocent men and women serving time in prison, there will be none.
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