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Habeas – IAC – NGI Defense

Albert Price v. Thurmer, 7th Cir No. 09-3851, 4/18/11

7th circuit court of appeals decision, on remand after prior appeal, 514 F.3d 729, denying relief on review of unpublished decision of Wis COA

Habeas – IAC – NGI Defense

Trial counsel seemingly mishandled the court-appointed NGI expert, in failing to cure the latter’s apparent misapprehension that he couldn’t rely on eyewitness reports of Price’s behavior absent determination of their credibility by the trial judge. However, the state court ruling that Price couldn’t show prejudice (because he couldn’t show that the expert would have changed his opinion had he taken these reports into account) wasn’t “unreasonable” under deferential AEDPA review.

If it wasn’t for bad luck, Albert Price would have no luck at all. (Apologies to Willie Dixon by way of Judge Kozinsky.) Price committed “a bizarre act of mayhem in 1991,” in Judge Posner’s typical colorful prose. The only real dispute was whether his mind was disordered by his documented, chronic mental illness (NGI), or by voluntary drug intoxication (NGI-ineligible). The prosecution expert said Price wasn’t NGI, the defense expert that he was, and the court’s expert couldn’t say – as suggested, he (wrongly) thought he couldn’t rely on interviews of family members and friends without the judge first “validat(ing) the reliability of the witnesses’ testimony, which the judge could not have done.” In other words, the court’s expert didn’t quite understand his own role, and trial counsel failed to correct his misapprehension. The state court of appeals nonetheless said Price couldn’t prove prejudice, because he couldn’t show that the expert would have drawn a different and favorable conclusion had he been brought up to speed on the facts and the correct methodology. The 7th Circuit is skeptical, but AEDPA ties its hands:

Nevertheless as an original matter we would be inclined to rule that Price had been prejudiced by his lawyer’s lapses. But the Wisconsin court of appeals disagreed; and a state court’s determination that a defendant was not prejudiced by his lawyer’s ineffectiveness is entitled to great weight in a federal habeas corpus proceeding, as emphasized with rather unexpected vigor by the Supreme Court when it said recently that a state prisoner can prevail in a federal habeas corpus proceeding only if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents . . . . [The] prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

Harrington, the court goes on to say, compels deference even to an “opinion” consisting of the single word “affirmed.” The federal court, then, must bend to the state court’s determination of no prejudice, problematic though it might be. This, even though Price’s jury split 10-2 against his NGI defense (one more vote in his favor would have prevented a verdict); and, as the court observes, “(a) jury is likely to think the court’s expert witness the most credible expert witness in the case.” Price bore the burden of proof, and the most important witness was adrift. Problem is, that expert wasn’t produced at the state postconviction hearing, and by the time of the federal hearing he had died. So we can’t know what he would have said had he taken into account all relevant facts. (Hence, if it wasn’t for bad luck.) A 4th expert testified, albeit at the state postconviction hearing, that Price’s mayhem undoubtedly was caused by his mental illness; further, that by walling off eyewitness observations, the court’s expert would have been “severely handicapped” in reaching an accurate conclusion. The state court of appeals consigned that 4th expert’s opinion to the memory hole (it went unmentioned in the opinion). Enough for relief in the interest of justice? The state court of appeals said no, but it’s not quite clear how the issue was raised: “Price makes a final plea for a new trial in the interests of justice on the ground that the real controversy was not tried during the NGI phase of his trial. … Price’s plea relies on the claims of error already made. We have not found any one claim to be reversible error,” slip op., ¶30. You be the judge. But if the idea is that the court’s expert sat on the fence only because he couldn’t see the gate – then that’s really something other than a claim of error already made, isn’t it? More an example of the real issue in controversy not being fully tried, isn’t it? Well, as with the court’s expert’s testimony under correct assumptions, we’ll never know.

Couple of quick, if tangential, hits. The court expresses generalized skepticism about claims of amnesia as the basis for a challenge to competence to stand trial; “something more than the defendant’s word would have to be shown, given the ease of making such a claim, the difficulty of countering it, and hence the temptation to abuse it.” Also, the court says that the very evidentiary hearing it ordered was error under the recently decided Cullen v. Pinholster: “In light of that decision we should not have ordered such a hearing insofar as Price was seeking relief under section 2254(d)(1).”

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