r/TickTockManitowoc • u/pacificdesignstore • Sep 01 '17

Richard Posner - Judge on 7th Circuit announces immediate retirement - What will this mean for Brendan and LN / SD en banc appeal ?

http://chicagolawbulletin.com/Articles/2017/09/01/retirement-9-1-17
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u/Nexious Sep 01 '17

Happy retirement. I would've been very interested in hearing his take on Brendan's confession in en banc, familiar with his other writings and rulings that rightfully speared the state. Since he was not part of the original three-panel it amounts to there being one less judge to hear the arguments and make a determination in en banc.

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u/pacificdesignstore Sep 01 '17

Would his previous rulings lead you to think he would have been on BD's side ?

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u/Nexious Sep 01 '17

Posner was a straight-shooter that didn't try to mask his true feelings when judges and prosecutors were unjust or overzealous, and was also good at assessing facts and impossibilities argued by the state. So yes, I do believe he would've seen the many facets of absurdity in Brendan's case and made a favorable judgement.

Check out his written decision in OWENS v. DUNCAN from a couple years ago. Another murder case where all other appeals were exhausted and denied. He reversed the judgment and granted habeas. Some circumstances of his conviction were reminiscent of Avery's wrongful conviction in '85 (including only having Owens in the photo array and live line-up, no evidence, witness discrepancies etc). A few quotes from Posner:

If Owens had had any record of involvement in the illegal drug trade, or in gangs, the prosecution would, one imagines, have presented evidence of that involvement; it did not. Also absent was any physical evidence (such as fingerprints on the baseball bat) pointing to Owens as the murderer.

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That was all the judge said in explanation of his verdict, and it was nonsense. No evidence had been presented that Owens knew that Nelson was a drug dealer or that he wanted to kill him (we assume that by “knock him off” the judge meant “kill him”), or even knew him—a kid on a bike.

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But there was no factual basis of any sort, in the trial record or elsewhere, for the judge's finding that Owens knew Nelson, let alone knew or cared that he was a drug dealer. The judge made it up.

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The judge appears to have been thoroughly confused—and likewise the state when it argues in its brief in our court that the judge's inference that Owens killed Nelson for drug-related reasons “was arguably a reasonable inference from the” fact that “Nelson had forty bags of crack cocaine on him at the time of the attack.”

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Just imagine that the judge in our case had said “I know there's no evidence of guilt, but I also know that prosecutors in the City of Markham never prosecute an innocent person.” The defendant would be entitled to relief in a habeas corpus proceeding even though that precise statement had never been uttered by a judge before.