That was an interesting tape. One judge I didn't like at all. Bought into the prosecution argument that the cops can be this deceptive and manipulative to a kid the equivalent of 9 or 10 years old mentally.
That was judge David Hamilton. Interestingly enough he was Obama's first judical nomination (lifting him from the United States District Court for the Southern District of Indiana to the 7th circuit). The Republicans, especially Sessions and Inhofe, tried to
filibuster him. Conservapedia and other christian fundamentalist right-wing people/organizations hate him based on a couple of his rulings. Also, interestingly, he was one of the three-judges who stayed Dassey's release a couple months ago.
I read a person or two who thought that Hamilton was just playing devil's advocate. But, I have my doubts based on the following
interview from 8 years ago, and to be honest, he is correct in terms of what the current supreme court legal precedent is for voluntary confessions - as much as feel that it is travesty - there is very little wiggle room for BD:
(TL/DR - Hamilton goes into oral arguments having read the material and almost always with a preliminary standpoint. He questions/argues from that standpoint - in part to signal to the other judges where he stands and in part to probe what he feels are the biggest weaknesses for one (or both sides). He does change his mind/position after oral arguments, but only rarely - 2-10% of the time).
"LM: What is the value of oral argument to you?
Judge: Well, it depends. I met with a group of students recently in appellate practice who asked me in essence whether I approached oral argument fairly and objectively, and I said well, not really, no, because it’s rare for me to come in neutral. the expectation here among the members of the court is that you are sufficiently prepared to be ready to cast a vote after the arguments – a tentative vote but one that you are very likely to stick with – so that we want to do the hard thinking now while we’re all together for argument and for conference face-to-face. and so, what I get out of oral argument, regardless of the quality of the oral argument, is the opportunity to listen to and talk to my colleagues about the case for the first time. that’s really critical. as often as not, we’re talking to each other as much as we’re talking to the counsel in the case.
I try to go into an oral argument with both a preliminary view and some thoughts about what it might take to change my mind. Questions are usually aimed in that direction, as well as signaling to colleagues what I’m worried about, what I’m thinking about, particularly if you’re looking at a case that has multiple paths to different results or multiple paths to the same result. What’s most important? should we do this on procedural grounds? should we reach the substance of the dispute? The dialogue is pretty transparent, I think. you can watch our discussions and questions and probably make some pretty good guesses about likely votes.
I can tell you I always appreciated arguing in front of judge ripple because he would be quite explicit: “counsel, here’s my biggest problem with your side of the case.” In essence, “give me your best shot. What’s the best response you have to this potential weakness?” If I’m counsel in the case, those are the questions I want, and those are the questions that I try to ask as a judge.
But also, even if I’m not troubled about a case, I will frankly try to ask a question or two just so there’s some give-and-take discussion. We do ask counsel to come here to have a conversation about the cases, and I think we ought to go ahead and do that and not be a totally cold bench. Obviously there are times when we are way hotter than counsel may want or like.
this has come up in some particularly controversial cases where oral arguments may have been especially contentious. I would ask counsel to be a little patient with our impatience. I think I said this in an oral argument a year or two ago, in essence said, “counsel, we’ve read everything you wrote for us. this is our turn.” I know it’s frustrating for counsel not to be able to give a prepared speech about the strongest points in their case. that’s what I wanted to do in oral argument too. But for our purposes, our job is to probe the softest spots in the argument. this is our chance to talk back and wrestle with the arguments in the briefs, so please don’t take the interruptions amiss. time is limited, and if we are asking questions, it’s usually because it’s something we think is important.
LM: do oral arguments ever change your determination of which side should prevail on the appeal, in addition to shaping the opinion?
Judge: yes, it changes outcomes. It certainly shapes opinions, and somewhere between 2 and 10% of the time it will change outcomes. now, is that change the result of the brilliance of oral advocacy, a mistake in my preparation, or questions from a colleague that get me to see the case in a different light? all of the above. It can be any of those things. I try to be well prepared for oral argument, but there’s a reason there are three of us. and there are also situations in which somebody who has a good case may just not have written a very good brief, and we just don’t quite get it until we hear the oral argument.
Oral argument also helps shape the opinions. It is the opportunity for a group dialogue. I realize it’s highly stylized and formalistic, but you’re bringing together several minds, the judges and the counsel, to focus on the questions: What are the implications if we agree with you about this? Or this is a very confusing area of state practice; help explain this to us so we don’t mess it up. all kinds of ways that we’re helped by that.
We are generalists, and one of the difficult challenges of this job is that we’re doing very public work in areas where counsel are far more expert than we are. Oral argument is really a chance for us to kind of ask some dumb questions and make sure we understand the larger context in which this dispute arises."
