Alison Dirr, and John Ferak

Post Crescent

PORTAGE - Brendan Dassey remained incarcerated on Tuesday, a day after a federal judge ruled that he should be conditionally released while the state's appeal in his case is pending.

As Dassey waits at Columbia Correctional Institution in Portage, questions remain unanswered.

Among them: When he might be released and how state Attorney General Brad Schimel's announcement that he would be filing an "emergency motion" asking for a stay of the release order might impact that timeline.

Late Tuesday afternoon, Schimel and Assistant Attorney General Jacob Wittwer filed an 11-page motion asking the federal courts not to grant Dassey's release. Schimel's office asked the federal court to issue an order deciding on its motion by 4 p.m. Wednesday. The Attorney General's Office also promised that it would have an emergency motion contesting Dassey's release from custody filed with the U.S. Court of Appeals 7th Circuit in Chicago by the end of the work day on Wednesday.

"The State's case on the underlying appeal is very strong," Schimel's office contended in Tuesday's filing. "Two state courts previously determined that Dassey's March 1, 2006 confession was voluntary and all that need to be shown on habeas review is that the state appellate court's determination was one that a reasonable court could have made ... there is good reason to believe that this decision will be reversed."

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In the last-minute ruling, Schimel and Wittwer put forth an emotion plea, suggesting that Dassey's release from custody harms the family of victim Teresa Halbach. "Dassey confessed to extremely violent offenses and a jury unanimously found him guilty of first-degree intentional homicide, second-degree sexual assault and mutilation of a corpse," wrote Schimel and Wittwer.

The state prosecutors argued that U.S. Magistrate Judge William Duffin's decision in August to overturn Dassey's conviction "does not establish that Dassey did not commit the crimes to which he confessed. Accordingly, Dassey's release should be regarded as a serious public safety issue. The public interest favors continued custody in these circumstances, regardless of Dassey's recent conduct in a controlled prison setting."

Furthermore, state residents and Halbach's family and friends will "suffer real and substantial harm" if Dassey gets released before the court of appeals in Chicago decides whether to affirm Duffin's August decision to overturn Dassey's conviction, adding, "this harm is unjustified given the strong likelihood that this Court's underlying decision will be reversed and Dassey returned to state custody within the next few months."

Duffin's order required that Dassey's attorneys provide the U.S. Probation Office with the address of his intended residence by no later than noon on Tuesday. The probation office must inspect the residence where Dassey intends to live and determine whether it is suitable.

Where he would go after his release also remains purposely undisclosed.

"In order to protect the privacy and safety needs of Brendan and his family, the proposed release plan does not include specific addresses for the proposed release locations," his attorneys wrote in their motion seeking his release. "Counsel will immediately provide this information, along with photographs of the proposed release locations' exteriors and interiors, to this Court upon request."

On Tuesday, Stu Slotnick, a prominent New York criminal defense attorney, said that Duffin's decision on Monday ordering Dassey's release from custody was not all that surprising, nor were the restrictions the judge put on any travel for Dassey.

"Setting out these terms is not unusual," said Slotnick, a lawyer at the firm of Buchanan, Ingersoll & Rooney.

"Clearly, the magistrate judge realized he was not a risk to the community," Slotnick said. "The risk of flight was also weighted and clearly the judge felt he'll be back" for any future court appearances.

Slotnick said he believes it's doubtful the Wisconsin Department of Justice will prevail in any attempt to reinstate Dassey's 2007 murder conviction. Slotnick expects Wisconsin prosecutors will lose their case after the arguments are presented before the court of appeals in Chicago.

"Without the confession, the state is left wondering what evidence am I going to use to convict this defendant," Slotnick said. "The suppression of a confession is a major blow to the prosecution. It clearly will be an uphill battle for the prosecution but we'll have to wait and see what happens in the courts."

Alison Dirr: 920-996-7266 or adirr@gannett.com; on Twitter @AlisonDirr; John Ferak: 920-993-7115 or jferak@gannett.com; on Twitter @johnferak