Another way the respondent may rebut the presumption in favor of release
contained in Rule 23(c) is to show “that the state is quite likely to be able to retry,
reconvict, and reimprison the applicant.” Walberg, 776 F.2d at 136. The respondent has
made no effort to rebut the presumption of release in this manner. As this court noted in
its decision granting the petition, “Dassey’s confession was, as a practical matter, the
entirety of the case against him on each of the three counts.” (ECF No. 23 at 89); Dassey,
2016 WL 4257386, 35, 2016 U.S. Dist. LEXIS 106971, 110. Presumably, if the state had other admissible,
compelling evidence of Dassey’s guilt, it would have presented it at
trial or in opposition to Dassey’s motion for release. In the absence of any argument
from the respondent on this point, the court must conclude that, without Dassey’s
March 1, 2006 confession, retrial, reconviction, and re-incarceration are unlikely.
from Judge Duffin's recent order, BBM above. I think all of us that believe that the confession was coerced has said this!
Judge Duffin seems to be pretty confident that his original order will hold up and the State will not be successful on appeal. ;-)
There are two ways a state inmate might obtain federal habeas corpus relief.
First, the petitioner could prove that the decision of the last state court to review his
conviction was contrary to or involved an unreasonable application of clearly
established federal law. 28 U.S.C. § 2254(d)(1). Alternatively, the petitioner could prove
that the state court’s decision was based upon an unreasonable determination of the
facts. 28 U.S.C. § 2254(d)(2). Ordinarily, a petitioner presents a claim under only one of
these grounds. Dassey presented his claim under both grounds, and even more
extraordinarily the court granted him relief on both grounds.
