Ineffective Assistance – NGI Defense – Habeas Review
Counsel performed deficiently by failing to: adequately prep his NGI expert witness, who had performed only a competency evaluation of Wilson and wasn’t given the opportunity for a reinterview with the distinct purpose of an NGI evaluation; present testimony of family members familiar with Wilson’s mental deterioration; and retain another expert.
Given the gravity of the charge against Wilson and the ample evidence that he was driven to kill Fischer by an insane delusion, we conclude that Schnack’s assistance to Wilson fell below the minimum professional level required (by interpretation of the Sixth Amendment) of a lawyer representing a murder defendant; the Illinois courts were unreasonable to think otherwise. Wilson’s imperative need for better and more timely preparation of Parwatikar (the attempt to prepare him hours before he testified came too late), for a reinterview of Wilson by Parwatikar, for acceptance of Parwatikar’s advice to hire another expert, and for putting the lay witnesses to Wilson’s mental deterioration on the stand, compels our conclusion. The only reasons the state courts gave for thinking Schnack’s representation adequate was that Parwatikar was a distinguished psychiatrist and that Schnack “questioned Parwatikar in a cogent manner, enabling Parwatikar to come across in a favorable light.” Unmentioned was that Parwatikar had told Schnack that his testimony alone would not be adequate, that he was correct, and that his credibility was demolished on crossexamination.
Posner wrote the majority decision, Evans the dissent; two of the federal judiciary’s most gifted writers. Summary won’t remotely do justice to either, but here are some highlights. Wilson was delusional when he shot and killed his boss because Wilson thought the boss part of a conspiracy by “the Catholics.” But immediately after the shooting, Wilson called 911, confessed and expressed regret — which suggested that he might have been sane. And, indeed, the state’s expert testified he was. But what about Wilson’s undoubtedly being pressurized by delusions? Illinois has banished inability-to-conform-conduct from its NGI law. Instead, Wilson had to prove by clear and convincing evidence that his mental illness prevented him from appreciating the criminality of his act. His 911 call expressing regret gave him, as the majority put it in a bit of understatement, a seemingly tough row to hoe. The majority nonetheless, in an absolute tour de force, discerns what it terms the “deific decree” principle in NGI cases, which stresses a defendant’s inability
to appreciate his act as being morally wrong, whatever the source of his moral beliefs. Convinced that he was the victim of a vast conspiracy—that his persecutors, including his boss, were infiltrating his home in order to frame him for the crime of child molestation, and that if he left the state he could well face catastrophe on his return—Wilson may have thought, at the moment he killed Fischer, that he was doing a morally justified deed.
Judge Posner concludes that “It is a reasonable inference that the Supreme Court of Illinois would approve an insanity defense along the lines” just suggested. Judge Evans takes issue with that perception, and more. He makes telling points, including a strong argument that the trial attorney may well have had strong tactical reasons for not having his expert reinterview Wilson (“Why take the chance of losing [the favorable opinion]?”). But the problem is that we don’t really know what the attorney had in mind, because the state court didn’t take evidence on the issue. The majority orders a hearing on remand (describing its deficient performance ruling as merely “tentative”), and the state will be allowed to adduce evidence of attorney tactics (as distinct from what the majority characterizes as “insouciance”). In the end, the attorney may well be held effective. It is just that the dissent thinks the exercise “unnecessary” because, given the facts he had to work with, counsel played the best hand he could considering that the deck was stacked against him.
One final point, relating to a technical issue of habeas review. AEDPA imposes a regime of deferential review, but under current 7th Circuit caselaw, where the state court doesn’t reach a particular issue, review under AEDPA is plenary. (“Current,” because a recent cert grant raises this very question of the no-deference exception.) Illinois courts didn’t address the issue of whether Wilson was prejudiced by what is now deemed to be his attorney’s deficient performance, so that question is subject to plenary review. The court remands for an evidentiary hearing on prejudice, but isn’t explicit about why. The burden of showing prejudice, as well as deficiency, is on the defendant, plenary review or not. The only way Wilson can hope to show prejudice is to have his original expert testify after reexamination that Wilson was indeed insane; or to have another expert so testify.