“We must deny the writ if we can posit arguments or theories that could have supported the state court’s decision, and if fairminded jurists could disagree about whether those arguments or theories are inconsistent with Supreme Court holdings.”
How later courts described this case
- “We must deny the writ if we can posit arguments or theories that could have supported the state court’s decision, and if fairminded jurists could disagree about whether those arguments or theories are inconsistent with Supreme Court holdings.”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2614
LEONARD KIDD,
Petitioner‐Appellant,
v.
MICHAEL LEMKE, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:11‐cv‐06839 — Samuel Der‐Yeghiayan, Judge.
____________________
ARGUED OCTOBER 3, 2013 — DECIDED NOVEMBER 1, 2013
____________________
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. Leonard Kidd was convicted of ten
counts of murder in 1987 and sentenced to death. On appeal,
his conviction was reversed and the case was remanded for a
new trial. At his new trial, Kidd waived the assistance of
counsel and represented himself, despite the trial judge’s re‐
peated warnings and advice. Kidd was convicted again, and
is currently serving a life sentence. He now petitions for a
writ of habeas corpus, arguing that his Sixth Amendment
2 No. 12‐2614
rights were violated because his decision to represent him‐
self was neither knowing nor voluntary. The district court
denied Kidd’s habeas petition, and we affirm.
I. Background
On October 28, 1980, a fire broke out in a Chicago apart‐
ment building, killing ten children. Kidd became a suspect in
1984, following his arrest on unrelated charges.1 He was
charged with arson and ten counts of murder, and his first
trial was in 1987. Robert Strunck, a public defender, repre‐
sented him. Kidd was convicted on all counts and sentenced
to death. In 1992, the Illinois Supreme Court reversed his
conviction due to trial errors and remanded for a new trial.
We now set out this case’s procedural history at some
length. Although we limited Kidd’s current appeal to the
voluntariness of his waiver, Kidd draws upon several of his
earlier arguments, and earlier proceedings are relevant here.
A. Kidd’s waiver of counsel on retrial
After the remand, Kidd filed a pro se motion seeking ap‐
pointment of counsel other than Strunck. At a July 1992
hearing, Kidd asked the court to appoint “Dan Webb or Jen‐
ner & Block” as his new attorney. When the court asked
why, Kidd said that his was a capital case and that he would
“prefer for one of them to represent me.” Strunck worked for
the public defender’s office and Kidd “would rather for any‐
one outside of the office to handle this case now.” The court
told Kidd that it would not appoint Webb or Jenner & Block
to represent him, as he had “very competent” counsel. Kidd
1 In this unrelated case, Kidd was ultimately convicted of arson and four
counts of murder.
No. 12‐2614 3
responded that the public defender “did a well good job on
this case,” but continued, “[a]ll I am saying is that I feel that
it would be my best interest, I would feel more secure and
comfortable, you know—I don’t want to have to go back on
death row.” The court told Kidd that Webb or Jenner &
Block would have to represent him pro bono and then tabled
the issue. Ultimately, Kidd was unable to find private coun‐
sel.
Kidd’s case was set to go to trial in September 1994—
more than two years after the remand. On August 23, 1994,
Strunck told the court that Kidd wanted to proceed pro se.
As the colloquy that followed is critical to our waiver analy‐
sis, we set it out at some length:
STRUNCK: Mr. Kidd has also informed me af‐
ter a recent jail visit that it’s his desire in this
matter to go, pro se.
… Obviously, the relationship, I believe, goes
back approximately 10 years.
Now, I have explained to him that absolutely,
he has a right to go pro se. It is not—probably
not in his best interest. That it goes without
saying, that Leonard Kidd is not a licensed at‐
torney, in the State of Illinois or any other state
nor does he have any formal legal education,
legal training nor has he tried any cases.
Basically, Judge, I have informed him that this
is obviously not in his best interest to proceed,
pro se. He wishes to address the Court on that
issue.
4 No. 12‐2614
Your Honor, obviously, he has a right to do as
he pleases.
COURT: It would be disruptive or [a] hin‐
drance to an orderly trial. Go ahead, Mr. Kidd?
KIDD: Yeah, I feel it is in my best interest to
go, pro se.
COURT: Well, of course, I would disagree. I
think you would be absolutely and totally fool‐
ish to undertake this trial without a good law‐
yer, an experienced lawyer in this case. A law‐
yer who has already [fought] one trial for you
and knows the case and has always been ex‐
tremely vigorous and energetic and conscien‐
tious in trying to defend you.
You know very well that you can receive the
death penalty on this case. You were for 20
years in the Illinois Department of Corrections
through natural life to the death penalty, and
you would be called upon to make your own
arguments, to make your own objections, gath‐
er your own legal written instructions at the
end of the case, to introduce evidence.
You have, I think, a good idea from your trials,
all that it takes to conduct a trial, to conduct a
defense. And you would be called upon to do
so.
KIDD: Yeah.
No. 12‐2614 5
COURT: Well—so, I really urge you not to try
to undertake to defend yourself, but to stay
with your lawyer.
KIDD: It looks like that’s my only way out. It
looks like my best way out, though.
COURT: Think about it again and see if you
still have the same thought on September 7th,
which is the trial date. It is going to go ahead
on September 7th, whether you are your own
lawyer or you wish Mr. Strunck to keep de‐
fending you.
But particularly in this case, which is not a
simple case, requires presentation of a good
cross examination, involves the death penalty,
which calls all kinds of things that you know
about since you went through this trial al‐
ready.
I have real doubt whether you can do it your‐
self.
KIDD: People sit right there on the stand and
lied to you. I do it myself. I ain’t going to go
through what I did.
COURT: We’ll see. You better rethink it. We’ll
see you September 7th.
Kidd then asked for copies of “the transcript” and a court
order for the law library. When the government discussed
changes to its witness list, Kidd asked whether he needed to
prepare a list as well. He told the court that he was definitely
going to add witnesses. The court then gave the parties a
6 No. 12‐2614
deadline; Kidd said the date was “cutting it short” but he
would try his best to meet it. When the court pointed out
that it would be difficult for Kidd to meet deadlines while in
custody, Kidd responded, “[b]ut sometimes you have no
choice, when people sit right there on the stand and lie, too.”
The court followed up with Kidd’s pro se request a week
later, on August 31, 1994:
COURT: Mr. Kidd, do you still have that in
mind, or are you agreeable to having Mr.
Strunck continue to represent you?
KIDD: I still have that in mind.
COURT: You realize that this case is going
ahead to trial next week, so you would have to
be ready to represent yourself next week? Do
you understand that?
KIDD: Yes.
COURT: … You’re charged with ten counts of
murder and a count of arson, aggravated ar‐
son, I believe. And I must tell you then the na‐
ture of those charges, which I think you al‐
ready know since you went through a trial on
them.
Secondly, you should also know that on the
murder charges, the minimum is 20 years, and
the maximum is the death penalty. You under‐
stand that that’s the minimum and the maxi‐
mum. 20 years is the minimum; the death pen‐
alty is the maximum.
No. 12‐2614 7
If there’s a penitentiary sentence, the sentences
can run concurrent, together at the same time,
or consecutive, one to follow the other.
You also must be informed, and I’m sure you
already know, that you have a right to counsel,
and if you are indigent, without money, coun‐
sel, Mr. Strunck, the public defender, will be
appointed for you. Do you understand?
KIDD: Yeah.
COURT: Now, the other thing, as I think I
mentioned to you before, if we go to trial on
this case and you act as your own lawyer,
you’re going to be responsible for your de‐
fense. You’re going to be responsible to present
evidence according to the rules of evidence
and the rules of procedure.
You’re going to be responsible for cross‐
examining witnesses against you. You’re going
to be responsible for bringing in appropriate
instructions that you might want, legal instruc‐
tions. All the kinds of things you saw your
lawyer do during the first trial, that’s your re‐
sponsibility.
You can’t order Mr. Strunck to do this for you
and then order him to sit down, and you’ll car‐
ry on from there. You’re responsible for your
own defense. That means presenting evidence,
it means cross‐examining, it means introducing
possibly exhibits into the case, it means having
8 No. 12‐2614
legal instructions at the end of the case. Do you
understand that?
KIDD: Yes.
COURT: And knowing all those things, do you
still wish to represent yourself?
KIDD: Yeah.
The court then allowed Kidd to proceed pro se, with
Strunck as standby counsel. Kidd was again convicted of all
charges. At Kidd’s request, Strunck represented him during
the penalty phase of his capital case.
B. Penalty phase and post‐trial motions
During the penalty phase, the defense presented mitiga‐
tion evidence. Dr. Linda Wetzel found that Kidd’s 1993 IQ
test score, 73, placed him in the borderline mentally retarded
range according to one accepted classification scheme, and
“at the high end of the mentally retarded range of intelli‐
gence” according to another. Moreover, Kidd had a seizure
disorder and suffered from “impaired brain functions.” His
memory and concentration were very poor; if sentences be‐
came too complex, Kidd needed repetition and for the
speaker to slow down. However, she found that Kidd was
“good at expressing himself.” Another defense expert, Dr.
George Savarese, testified that Kidd had been diagnosed as
mentally retarded three times during his youth (after IQ
tests of 64, 67, and 63 in 1968, 1971, and 1976, respectively).
The parties also stipulated that the state’s psychiatrist ex‐
amined Kidd in 1985 and said he was malingering. Ultimate‐
ly, Kidd was again sentenced to death. (In 2003, Illinois Gov‐
No. 12‐2614 9
ernor George Ryan commuted all death sentences, Kidd’s
included, to life in prison without the possibility of parole.)
Strunck and Kidd both filed post‐trial motions for acquit‐
tal, which the trial court denied. In his pro se motion, Kidd
claimed that during his trial he used cocaine, marijuana, and
the antidepressant Sinequan, which he said he took under
medical direction. He asserted that Sinequan made him
drowsy during trial. He did not specify which drugs, if any,
he had used at the time of his waiver. The trial court did not
find Kidd’s account credible, saying that Kidd “was compe‐
tent, was totally mentally fit, he was sober as anyone in the
Courtroom, and he didn’t do a bad job as his own lawyer.”
C. Direct appeal to the Illinois Supreme Court
Kidd appealed to the Illinois Supreme Court.2 He argued
that under state law, he should have received a pretrial
competency hearing due to his use of psychotropic drugs.
Illinois law mandates that a defendant receive a formal
competency hearing when taking psychotropic drugs under
medical direction, see Ill. Code Crim. Pro. § 104‐21(a); how‐
ever, the court found that the record did not clearly establish
that Kidd had taken Sinequan under medical direction. The
court further found that Dilantin—an anti‐seizure medica‐
tion that Kidd claimed he had also taken throughout the tri‐
al—did not qualify as a psychotropic drug.
Kidd also argued that he did not knowingly and intelli‐
gently waive his right to counsel because he was “a brain‐
damaged and epileptic man who depended on anti‐seizure
2 Attorney Strunck did not handle Kidd’s direct appeal, nor any other
stage of Kidd’s proceedings.
10 No. 12‐2614
medication and who also received anti‐depressants.” His
condition prevented him from making a knowing and intel‐
ligent choice, he argued. In addition to his claims of drug
use, Kidd relied on Dr. Wetzel and Dr. Savarese’s testimony
about his mental impairment and the possibility that he was
mentally retarded. The Illinois Supreme Court noted that
there was disputed evidence in the record as to which medi‐
cations Kidd was taking and at what times. It also found that
the parties’ experts had disputed the extent of Kidd’s mental
impairment, if any. The court thus held that it was “unable
to say that [Kidd’s] purported mental limitations and disa‐
bilities precluded his knowing and intelligent waiver.”
D. Postconviction proceedings in the trial court
At the initial stage of his state postconviction proceed‐
ings—before the same judge who presided over his trial—
Kidd renewed his argument that the court should have or‐
dered a formal competency hearing because Kidd was tak‐
ing psychotropic drugs under medical direction. Kidd also
argued that his waiver of counsel was not voluntary.
In arguing that he should have received a competency
hearing, Kidd produced medical records showing that he
was indeed taking Sinequan at the time of his August 1994
waiver and throughout his second trial. In addition, Kidd
included a report by Nancy Cowardlin, who concluded that
Kidd had severely subaverage intelligence and lagged func‐
tionally. Kidd also submitted the affidavit of Dr. Deborah
Mash. After reviewing the trial record, Kidd’s medical rec‐
ords, and his psychiatric and psychological reports, Dr.
Mash diagnosed Kidd with Organic Brain Dysfunction and
mental retardation. She found that Kidd had been prescribed
Sinequan throughout August and September of 1994, and
No. 12‐2614 11
that the Sinequan would have significantly slowed Kidd’s
cognition and thought processes. Sinequan’s effect on Mr.
Kidd “required that a fitness evaluation be conducted before
trial to determine Mr. Kidd’s competence to waive counsel,
his ability to understand the nature of the charges against
him, and his ability to assist in his own defense.” Dr. Mash
also found that the medical records showed that Kidd had
taken Dilantin throughout his trial, which constituted an ad‐
ditional reason that a competency hearing should have been
conducted before Kidd’s waiver and trial.
The trial court was not persuaded by this new evidence.
It found nothing that called into question its conclusion—
and the Illinois Supreme Court’s conclusion—that Kidd was
at all times competent to waive counsel and stand trial.
Kidd also argued, for the first time, that his waiver of
counsel was involuntary. He said that he had no choice but
to represent himself because of Strunck’s ineffective assis‐
tance and the trial court’s refusal to appoint other counsel.
Kidd claimed that Strunck had abandoned his duty of loyal‐
ty to Kidd and was unwilling to prepare adequately for
Kidd’s second trial.
Kidd submitted several affidavits in support of his claim.
His new public defender, Richard Cunningham, said that in
June 1988—before Kidd’s first trial—Cunningham observed
a handwritten sign in Strunck’s office that read “Leonard
Kidd 14, Society 0.”3 Cunningham added that when he first
contacted Strunck to discuss Kidd’s case, Strunck became
3 In the instant case, Kidd was charged with killing ten people in 1980.
He was also charged with killing four other people in a later, unrelated
incident.
12 No. 12‐2614
angry, used profanity to describe Kidd, and said that Kidd’s
going pro se was “his little scam.” Kidd also submitted an
affidavit from another detainee at the same jail, Ronald
Kliner, who said that he had observed hostile interactions
between Strunck and Kidd. After one conversation in which
Strunck refused to interview or call at trial certain witnesses
whom Kidd suggested, Strunck allegedly told Kidd, “If you
don’t like me being your lawyer—do it yourself. I’ll ride
with you on the helicopter to your execution!” Kidd also
submitted his own affidavit. He said that Strunck tried to
convince him to plead guilty; that Strunck became angry
when Kidd refused to do so; that Strunck said the jury
would find Kidd guilty again; that Strunck rejected Kidd’s
trial advice; and that Strunck said he would just “go through
the motions” at trial. Under these circumstances, Kidd said,
he felt that he had no choice but to represent himself.
The trial court rejected Kidd’s claim that his waiver of
counsel was involuntary. The court said it had observed no
antagonism between Kidd and Strunck at any time after the
remand. In fact, the court stated that Strunck had “fought”
for Kidd in both trials. The court noted that Kidd had invited
Strunck to return as his counsel during the sentencing phase
and for post‐trial motions. Even if Strunck did hold personal
animosity toward Kidd, the court reasoned, that did not
mean he had given such ineffective assistance that Kidd had
no choice but to represent himself.
E. Postconviction proceedings in the Illinois Appellate
Court
Kidd appealed to the Illinois Appellate Court, raising
two arguments. First, he argued that the trial court should
have ordered a competency hearing because there was suffi‐
No. 12‐2614 13
cient evidence at the time of his waiver to support a “bona
fide doubt” of his competency. See Ill. Code Crim. Pro. § 104‐
11(a). The Illinois Appellate Court held that Kidd procedur‐
ally defaulted this claim by not raising it on direct appeal. In
any event, the court found, the additional proof of Kidd’s
use of medication and mental impairment was insufficient to
establish a bona fide doubt of his fitness at the time of the
waiver. The court noted that there was no evidence that
Kidd displayed any erratic behavior. It emphasized that “af‐
ter over two years of observation, the trial court concluded
that defendant was competent, totally mentally fit and his
efforts as pro se counsel supported that finding.”
Second, Kidd renewed his argument that he had no
choice but to proceed pro se because Strunck was unpre‐
pared and had “abandoned” him. The Illinois Appellate
Court also rejected this theory. It found that the record did
not support Kidd’s claims about Strunck’s ineffectiveness. It
reasoned that Strunck had already gone through one trial, so
he could not be considered unprepared. And it dismissed
Kidd’s contentions about Strunck not calling certain wit‐
nesses as mere disagreements over trial strategy. It further
found that Kidd’s allegations of Strunck’s hostility toward
Kidd were contradicted by the trial court’s observations of
Strunck when he acted as counsel and standby counsel.
In sum, the Appellate Court found no reason to doubt
the trial court’s assessment that Kidd’s waiver was knowing
and voluntary: “The record indicates that defendant was
properly questioned and admonished by the trial court and
simply decided that he would be best suited to represent
himself against the witnesses he believed were lying.” The
Illinois Supreme Court declined to hear Kidd’s appeal.
14 No. 12‐2614
F. Habeas review
Kidd then filed a habeas petition in federal district court.
First, he raised his competency claim again. Second, he ar‐
gued that his waiver was not knowing and voluntary.
The district court denied the petition. It agreed with the
Illinois Appellate Court that Kidd’s competency claim was
procedurally defaulted. Nonetheless, it found the claim mer‐
itless: “the record does not reflect a basis for the trial court to
have found a bona fide doubt as to Kidd’s fitness to proceed
pro se.” The district court agreed with the Illinois Appellate
Court’s assessment of Kidd’s lack of erratic behavior, the
conflicting expert testimony about his mental capabilities,
and the fact that he had changed his story about drug use.
In rejecting Kidd’s argument that his waiver was not
knowing and voluntary, the district court found that the Illi‐
nois Appellate Court’s conclusion was neither an unreason‐
able application of Supreme Court precedent, nor based up‐
on any unreasonable finding of fact. The district court re‐
viewed the trial court’s discussions with Kidd before his
waiver and concluded that the record “clearly indicate[s]
that Kidd was cognizant of what he was doing.”
We limited Kidd’s current appeal to the issue of whether
his waiver of counsel was knowing and voluntary.
II. Discussion
We may grant a writ of habeas corpus only if the peti‐
tioner’s custody is “in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). Where
the state court adjudicated the petitioner’s claim on the mer‐
its, its decision must either be (1) “contrary to, or involve[]
an unreasonable application of, clearly established Federal
No. 12‐2614 15
law, as determined by the Supreme Court,” or (2) have “re‐
sulted in a decision that was based on an unreasonable de‐
termination of the facts in light of the evidence presented in
the state court.” Id. § 2254(d)(1)–(2). The state court’s factual
findings are presumed correct, and rebutting them requires
clear and convincing evidence. Sturgeon v. Chandler, 552 F.3d
604, 612 (7th Cir. 2009). If the petitioner can show that a state
court’s decision was unreasonable under § 2254(d), we re‐
view the petitioner’s arguments de novo. See Williams v. Tay‐
lor, 529 U.S. 362, 406 (2000). Otherwise, we defer to the state
court’s decision. We review the final reasoned opinion by
the state courts—in this case, the Illinois Appellate Court’s
decision denying postconviction relief. See Charlton v. Davis,
439 F.3d 369, 374 (7th Cir. 2006).
Kidd argues that the Illinois Appellate Court unreasona‐
bly applied Supreme Court precedent as to what constitutes
a knowing and voluntary waiver. We must deny the writ if
we can posit arguments or theories that could have support‐
ed the state court’s decision, and if fairminded jurists could
disagree about whether those arguments or theories are in‐
consistent with Supreme Court holdings. Cullen v. Pinholster,
131 S. Ct. 1388, 1402 (2011).
A. Sufficiency of the trial court’s warnings
The Sixth Amendment guarantees a criminal defendant
“the right to counsel at all critical stages of the criminal pro‐
cess,” Iowa v. Tovar, 541 U.S. 77, 80–81 (2004), but also the
right “to proceed without counsel when he voluntarily and
intelligently elects to do so.” Faretta v. California, 422 U.S.
806, 807 (1975). The defendant’s waiver of counsel must be
knowing, intelligent, and voluntary. Tovar, 541 U.S. at 88.
16 No. 12‐2614
The Supreme Court has said that a waiver is “knowing
and intelligent” when the defendant “knows what he is do‐
ing and his choice is made with eyes open.” Id. (quoting Ad‐
ams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
However, the Court has “not … prescribed any formula or
script to be read to a defendant who states that he elects to
proceed without counsel.” Id. Instead, the Court has in‐
structed that “[t]he information a defendant must possess in
order to make an intelligent election … will depend on a
range of case‐specific factors, including the defendant’s edu‐
cation or sophistication, the complex or easily grasped na‐
ture of the charge, and the stage of the proceeding.” Id. (cit‐
ing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
Under this standard, the trial court’s warnings were suf‐
ficient. The court explicitly warned Kidd about “the hazards
ahead.” Id. at 89. In their first colloquy, the judge explained
to Kidd that the case was complex, the potential conse‐
quences were grave, the time‐frame before trial was brief,
and the challenges of representing himself were many. The
judge told Kidd that he would need to perform all the tasks
that his attorney, Strunck, had performed at the first trial.
The judge advised Kidd against proceeding pro se, told him
to rethink this major decision, and gave him a week to do so.
One week later, they engaged in another colloquy. The judge
again emphasized the short timeline, the seriousness of the
charges, the fact that Kidd faced the death penalty, and the
complexity of conducting his own defense. The court added
that Kidd had the right to a lawyer, even if he could not af‐
ford one. The court’s warnings “rigorous[ly] conveyed” the
dangers of Kidd’s choice. Id. (quoting Patterson v. Illinois, 487
U.S. 285, 298 (1988) (internal quotation marks omitted)).
No. 12‐2614 17
B. Kidd’s subjective understanding
Kidd argues that the trial court did not sufficiently de‐
termine whether Kidd subjectively understood its warnings.
Even if a person of ordinary intelligence would have real‐
ized the import of the court’s warnings, Kidd contends, the
court did not do enough to confirm that Kidd himself took
any meaning from them.
We first note that the defendant’s competence to waive
counsel is a separate inquiry from whether the defendant’s
waiver is knowing and voluntary. “The focus of a competen‐
cy inquiry is the defendant’s mental capacity; the question is
whether he has the ability to understand the proceedings.”
Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993). “The purpose
of the ‘knowing and voluntary’ inquiry, by contrast, is to de‐
termine whether the defendant actually does understand the
significance and consequences of a particular decision and
whether the decision is uncoerced.” Id.
Kidd has already lost on his competency claim. The Illi‐
nois Appellate Court held that the trial court had no reason
to doubt his fitness to waive counsel; accordingly, the court
committed no error by failing to order a competency hear‐
ing. See Godinez, 509 U.S. at 401 n.13 (“[A] competency de‐
termination is necessary only when a court has reason to
doubt the defendant’s competence.”). The state courts also
found that Kidd was, in fact, competent at the time of his
waiver and throughout trial, and our review does not extend
to that determination.
But even accepting that Kidd had the ability to under‐
stand the significance and consequences of his waiver, the
question remains whether he actually understood the gravi‐
18 No. 12‐2614
ty of his decision. Kidd argues that the trial court did not
sufficiently ascertain this fact. He suggests that if the trial
court had conducted a meaningful inquiry into his medical
history, current health, and mental capabilities, it might have
learned that he had serious cognitive disabilities and was
taking potentially mind‐altering medications.
The Supreme Court was clear in Godinez that a court is
not required to make a competency determination in every
case in which a defendant seeks to waive counsel. 509 U.S. at
401 n.13. However, Kidd seems to be calling for something
less than a full‐fledged competency hearing. He suggests
that the trial court should have asked him some questions de‐
signed to ascertain his ability to comprehend information—
questions about his education, mental health background,
current medical conditions, or whether he was on medica‐
tion. The trial court did not ask any of these more targeted
questions in either waiver hearing. Instead, it explained the
significance of the waiver and Kidd’s right to counsel, and at
various times paused and asked Kidd whether he under‐
stood. Kidd responded in the affirmative each time. In
Kidd’s view, the trial court “solely relied on Kidd’s word.”
Kidd faces a substantial hurdle in arguing that the trial
court should have done more: the combination of (1) the
standard in the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) and (2) the Supreme Court’s somewhat
indeterminate guidance in this area. Under AEDPA, a court
conducting reasonableness review focuses on “whether the
state court’s application of clearly established federal law is
objectively unreasonable, not whether it applied clearly estab‐
lished federal law correctly.” McCarthy v. Pollard, 656 F.3d
478, 483 (7th Cir. 2011). Although the Supreme Court has
No. 12‐2614 19
called for a trial court’s pre‐waiver procedures to be “rigor‐
ous,” Patterson, 487 U.S. at 298, the Court “has not provided
extensive direction on the nature of the rigorous restrictions
… and procedures that a court must observe.” Smith v.
Grams, 565 F.3d 1037, 1046 (7th Cir. 2009) (brackets and in‐
ternal quotation marks omitted). Therefore, we have said
that a trial court’s failure to formally inquire into a defend‐
ant’s background and subjective understanding is “not fatal”
to finding a valid waiver. United States v. Todd, 424 F.3d 525,
533 (7th Cir. 2005). Instead, we look to the specific facts and
circumstances of each case to determine whether the trial
court was justified in concluding that the defendant’s waiver
was knowing. See Johnson, 304 U.S. at 464 (“The determina‐
tion of whether there has been an intelligent waiver of right
to counsel must depend, in each case, upon the particular
facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.”).
Under this approach, the trial court’s evaluation of
Kidd’s subjective understanding was sufficiently thorough.
Kidd cannot identify one specific fact that should have alert‐
ed the court to his allegedly impaired faculties. There simply
were no red flags, before or after the waiver. As the state
courts repeatedly noted, Kidd never displayed any erratic
behavior. The trial court found him lucid and responsive at
all times. Moreover, Kidd does not allege that he or Strunck
told the trial court that he was on medication until the post‐
trial stage, at which point the trial court did not believe
Kidd. Kidd insists that because the court “was dealing with
an epileptic, brain damaged, mentally retarded and mentally
ill defendant,” it should have done more. But the court had
no reason to know that there was any possibility that Kidd
did not understand the significance of his actions.
20 No. 12‐2614
Several considerations support the trial judge’s conclu‐
sion. First, Kidd represented his waiver as a strategic deci‐
sion. He told the judge on multiple occasions that it was in
his “best interest” to represent himself because, in his view,
witnesses had committed perjury during his first trial. When
a defendant’s choice appears to be “a strategic decision …
made so that he could pursue the case as he desired,” it
tends to show that the choice was intelligently made. United
States v. Volpentesta, 727 F.3d 666, 678 (7th Cir. 2013). Second,
throughout his pretrial hearings, Kidd demonstrated that he
was lucid and had some awareness of what conducting a de‐
fense required. He took steps—unprompted—to prepare for
trial. During the August 23rd hearing, he asked the court for
the transcript and a pass to the law library. He paid attention
during the court’s discussion of the government’s witness
list, and interrupted to ask whether he would need to pre‐
pare a witness list, too. He expressed dismay at a deadline
the court gave him, but said he would try his best to meet it.
All of these statements tended to show that Kidd understood
what was going on and what he was agreeing to. Finally,
Kidd had already been through two capital murder trials; in
fact, he had been through this exact trial before. A “defend‐
ant’s prior experience with the judicial system tends to show
that he understood that the charge against him was serious
and that he was accepting a risk by representing himself.”
Todd, 424 F.3d at 533.
We have said that Johnson v. Zerbst’s waiver standard
“can be met without a demonstration that the accused has a
deep understanding of how counsel could assist him.” Unit‐
ed States v. Hill, 252 F.3d 919, 925 (7th Cir. 2001). This is not
to discount the “serious and weighty responsibility” that tri‐
al courts have in determining whether a defendant knowing‐
No. 12‐2614 21
ly waived a constitutional right. Von Moltke v. Gillies, 332
U.S. 708, 723 (1948). This responsibility requires “a penetrat‐
ing and comprehensive examination of all the circumstances
under which such a [waiver] is tendered.” Id. at 724. But the
Constitution only requires the court to investigate as thor‐
oughly as the particular circumstances of the case require. Id.
Here, the trial court’s investigation was as thorough as the
circumstances called for—and in any event, it was not objec‐
tively unreasonable for the Illinois Appellate Court to find
the trial court’s investigation sufficient.4
C. Whether Kidd’s condition prevented him from making
a knowing and intelligent choice
Kidd also argues that his condition did, in fact, prevent
him from making a knowing and intelligent choice. He states
that “[c]learly, the drugs prescribed and taken had an effect
on whether or not [he] knowingly and voluntarily waived …
his right to counsel in his capital murder trial.” He also points
to the expert opinions regarding his low IQ, the possibility
that he is mentally retarded, and his severe learning disabili‐
ties—all of which establish, he claims, that he lacked the
requisite mental capacity to waive counsel.
Kidd is precluded from arguing that he was not compe‐
tent to waive counsel; he can only argue that although he
had the ability to understand his choice, his IQ and medica‐
4 Indeed, if we held that the trial court was required to inquire into
Kidd’s mental and medical history on the facts of this case, we would
arguably be mandating that trial judges always ask these kinds of ques‐
tions when a defendant seeks to represent himself. That would be the
kind of one‐size‐fits‐all script that the Supreme Court explicitly es‐
chewed in Tovar. See 541 U.S. at 92.
22 No. 12‐2614
tion prevented him from actually understanding the choice
at the time of his waiver. The factors discussed above—the
strategic nature of Kidd’s decision, his presence of mind dur‐
ing both waiver hearings, and the fact that the trial court
never had a reason to doubt his lucidity—indicate that it was
not objectively unreasonable for the Illinois Appellate Court
to discount Kidd’s expert testimony in light of what oc‐
curred on the record. Even Kidd’s strongest experts could
only speculate as to Kidd’s state of mind at the time of the
waiver. As such, Kidd has not put forth “clear and convinc‐
ing evidence” to rebut the state court’s factual finding that
during the two weeks in which he persisted in his request to
proceed pro se, Kidd understood the nature of his decision.
Kidd also argues that he was unable to serve as an ade‐
quate substitute for an attorney, stating that he cannot read
or write, has the vocabulary of a five year old, and has poor
memory and communication skills. These deficiencies, he
argues, would have severely hindered him in his ability to
complete basic trial tasks, let alone try a capital case. Yet
when it comes to the right to represent oneself, these argu‐
ments are “not relevant.” Faretta, 422 U.S. at 836
(“[T]echnical legal knowledge, as such, [is] not relevant to an
assessment of [the defendant’s] knowing exercise of the right
to defend himself.”); id. at 834 (“It is undeniable that in most
criminal prosecutions defendants could better defend with
counsel’s guidance than by their own unskilled efforts.”).
Whether Kidd could effectively represent himself is unrelat‐
ed to whether his waiver was knowing and voluntary.
D. Voluntariness of Kidd’s waiver
Kidd also claims that his waiver was not voluntary be‐
cause he “felt pressured into representing himself.” Kidd felt
No. 12‐2614 23
that he had “no choice” but to represent himself because
Strunck suggested that he would not provide help and
showed outright hostility toward Kidd.
The Supreme Court has said that a waiver is voluntary if
it uncoerced. Godinez, 509 U.S. at 401 n.12. The Illinois Ap‐
pellate Court found that “the record does not support de‐
fendant’s contention that he was abandoned and forced to
proceed pro se.” This conclusion was not objectively unrea‐
sonable.
As the trial court noted, it had observed Strunck and
Kidd for over two years, throughout the first trial and after
the remand. The court never had reason to doubt their viable
working relationship. It is true that before Kidd requested to
go pro se, he had asked for private counsel instead of
Strunck. He said that he would rather that “anyone outside”
of the public defender’s office handle his case. But when the
court asked for his reasons, Kidd never suggested that he
and Strunck had a difficult relationship or that Strunck had
abdicated his responsibilities. In fact, during the hearing on
Kidd’s motion for private counsel, he acknowledged that
Strunck “did a well good job on this case.” Kidd said that he
thought he would have a better chance of acquittal with
someone other than a public defender—not that he felt
Strunck had abandoned the case. Moreover, Kidd did not
mention Strunck during the two August hearings on his re‐
quest to waive counsel. Finally, Kidd invited Strunck to re‐
turn as his counsel for sentencing and post‐trial motions.
Kidd put forth affidavits relaying off‐record interactions
between him and Strunck. He also introduced his postcon‐
viction attorney’s observations of Strunck’s hostile attitude
toward Kidd. But the Illinois Appellate Court was not un‐
24 No. 12‐2614
reasonable in finding that the assertions in the affidavits did
not outweigh what the trial court observed on record before
and around the time of the waiver. This is especially true be‐
cause several allegations in the affidavits occurred at indis‐
tinct times or several years before or after Kidd’s waiver. The
allegations in these affidavits are certainly troubling, if accu‐
rate; but on this mixed record, we cannot conclude that it
was unreasonable for the state court to discount the affida‐
vits in favor of the record evidence.
III. Conclusion
For the foregoing reasons, we AFFIRM the denial of Kidd’s
petition for a writ of habeas corpus.