Scott Schmidt v. Brian Foster, 7th Circuit Court of Appeals No. 17-1727, 5/29/18, reversing Schmidt v. Pollard, No. 13-CV-1150 (E.D. Wis. Mar. 20, 2017); reversed en banc 12/20/18
A criminal defendant is entitled to counsel at all “critical stages” of the case. You probably think that a hearing, before a murder trial, that determines whether the accused will get to present his only defense counts as such a “critical stage.” The Wisconsin Court of Appeals, however, “easily reject[ed]” that notion in this (published) case. The Seventh Circuit now disagrees, saying the Wisconsin decision “unreasonably applied Supreme Court precedent and, frankly, ignored reality.”
Schmidt shot his wife to death. His only real defense was that he had acted under “adequate provocation” rendering the crime a second-degree, rather than first-degree, intentional homicide. He moved to admit evidence on this defense before trial, the state opposed it, and he submitted summaries of the proposed testimony and his legal argument on why it should be admitted.
The trial court held a hearing on the matter, but Schmidt did not wish to offer too much more of his proof, to avoid tipping off the state for trial. The court responded with an unusual proceeding: it brought Schmidt and his counsel into the judge’s chambers, but without the prosecutor. The judge then directly questioned Schmidt, and did not permit his counsel to question him or otherwise, well, counsel him regarding the questioning. In the end the judge decided he didn’t have enough evidence to raise the defense. The jury convicted Schmidt of first-degree intentional homicide.
Schmidt appealed, and the court of appeals held that the the in-camera inquisition was not a “critical stage” at which Schmidt had the right to a lawyer’s assistance because it “was not the only opportunity for Schmidt to present his provocation evidence to the court.” The supreme court denied review.
Schmidt petitioned for habeas in the Eastern District, lost, and appealed.
To overcome AEDPA deference, of course, a petitioner must show the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The state argued Schmidt could not show unreasonable application of Supreme Court precedent because there’s no SCOTUS case addressing a hearing like “the extraordinary ex parte, in camera hearing here.” (Slip op. at 13).
“No kidding!” says the Seventh Circuit. Given that the adversary system and the right to counsel are foundational to American justice, “it is not surprising that the Supreme Court has not considered an ex parte, in camera hearing on a substantive issue quite like this one.” (Slip op. at 14). But, the court notes, AEDPA doesn’t require a petitioner to identify a Supreme Court case with identical facts. Id.
And, after surveying the Court’s jurisprudence on what is a “critical stage,” the court finds it easily decides this case:
In sum, in this hearing conducted without his counsel’s participation, Schmidt not only confronted a complex substantive and procedural question; he was also forced to defend his position on the meaning of the procedural rule after the prosecutor challenged him. This was a critical stage—in this case, actually the most critical stage—of this prosecution. The accused’s right to counsel in this inquisitorial hearing did not depend on whether the prosecutor was in the room, or on whether the judge’s tone of voice and phrasing of questions were gentle or hostile. What mattered, under clearly established Supreme Court precedent, is that Schmidt was confronting the complex machinery of the criminal justice process on the most critical, disputed, and substantive issue in the case.
(Slip op. at 24).
Turning to the Wisconsin Court of Appeal’s rationale–that Schmidt had other opportunities to make his case–the federal court finds it, too, “flies in the face of clearly established Supreme Court precedent.” (Slip op. at 24).
The criminal process is full of pretrial steps that involve both written and oral submissions to the court: to name a few, motions to suppress evidence; motions challenging venue, jurisdiction, or competency to stand trial; and motions asserting selective or vindictive prosecution, or denial of speedy trial rights, or discovery disputes. Counsel’s help with the written half of the process does not erase the potential for prejudice in the oral half, let alone justify denying assistance of counsel. To our knowledge, the Supreme Court has never held that having assistance of counsel in part of a critical stage of the prosecution justifies denial of counsel in the rest of it. In this case the judge questioned Schmidt after reviewing the written offers of proof. If the judge had thought the written offers of proof had met the some-evidence threshold, the ex parte, in camera questioning would have been unnecessary. What Schmidt would say in chambers was critical.
(Slip op. at 25).
The entire, 34-page opinion (as well as the 18-page dissent) contain much, much more analysis regarding what makes a stage “critical,” and the case is a must-read for anyone litigating that question.