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Habeas – Ineffective Assistance – Provocation Defense

William Kerr v. Thurmer, 7th Cir No. 09-1032, 3/28/11 – Part I

7th circuit decision, on habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part II (procedural default) is here; Part III (evidentiary hearing, guilty plea advice), here.

Habeas – Ineffective Assistance – Provocation Defense

The state court’s conclusion that counsel’s failure to present an “adequate provocation” defense, which would have mitigated first- to second-degree intentional homicide, didn’t amount to ineffective assistance wasn’t objectively unreasonable. Provocation under Wisconsin law requires reasonable belief that the victim did something which caused the defendant’s complete loss of self-control at the time of causing death. Kerr argues that the victim (Graff), who was having an affair with Kerr’s wife, threatened him with violence at the time Kerr shot and killed him. However, Graff was unarmed, and the police had been called to the scene and sent away by Kerr himself, who told them that Graff was his friend.

… Kerr now argues that he had no time to “cool down” between the time that he began to argue with Graff on the telephone and the time that he killed Graff in his kitchen. But the visit by police provided an ideal opportunity to defuse the situation. Moreover, it is a stretch to say that Graff, who was unarmed, adequately provoked Kerr during the brief exchange after the police had left. The state suggests that Kerr’s lawyers made a strategic decision to omit the adequate provocation defense so that they would not undermine other defenses that they presented at trial. Perhaps so. Or perhaps they merely came to the conclusion that the state judge reached later: the facts simply did not support the defense.

Kerr’s efforts to avoid this conclusion focus on what he sees as the broader context of the killing. Under Wisconsin law, the question whether provocation is adequate—whether the objectively reasonable person would have lost control—is typically limited to those events that immediately precede the killing. Kerr urges us not to be too literal about the concept of immediacy. Instead, he wants us to look beyond the “final provocatory incident” to the days and months leading up to the crime. Graff’s affair with Joan tormented him over a period of a few months, he says, and then Graff made several violent threats during the phone calls earlier in the evening. He points to a series of Wisconsin cases that stand for the proposition that “actions over a long period of time can have . . . cumulative effect upon any ordinary person so that the provocation just before the shooting would be greatly magnified.” State v. Lucynski, 179 N.W.2d 889, 890 (Wis. 1970) (internal quotation marks omitted); see also State v. Felton, 329 N.W.2d 161, 172-73 (Wis. 1983); State v. Hoyt, 128 N.W.2d 645, 649 (Wis. 1964). These cases represent a well-defined exception to the normal rules of heat-of-passion defenses: a court may consider a pattern of prior conduct in circumstances where the defendant is a battered spouse who suffers persistent abuse that culminates in a killing. Kerr, however, wants an extension of that principle—one that the state court was unwilling to adopt. (Kerr did not even know Graff’s name until after Graff was dead.) Federal law did not compel the state court to take that step.

First-degree intentional homicide may be mitigated to second-degree under one of several different circumstances enumerated in § 940.02, including “adequate provocation” as defined by § 939.44. As the blockquote above suggests, this is what used to be termed “heat of passion.” And as the quote also implies, but doesn’t say explicitly, outside of a battered-spouse situation, grave skepticism attaches to the adequate provocation defense. On the other hand, consider “the following brief exchange” with the unarmed Graff immediately before his demise:

Kerr:  What’s the problem?

Graff: I’m your fucking problem. I’m going to take your wife and you’re not going to stop me.

Kerr: Over my dead body.

Graff: That will be easy enough.

Raymond Chandler couldn’t have improved on the dialog. But would Graff’s taunt have caused Philip Marlowe to lose self-control completely? Hard to imagine anything causing Marlowe to lose self-control, let alone completely. Then again, it’s a lot easier to imagine Marlowe as Graff than as Kerr, so perhaps the comparison isn’t worth making – except to the extent it might show the futility of Kerr’s adequate-provocation argument.

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