St. Pierre, Robert v. Walls, Jonathan

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-3480

ROBERT ST. PIERRE,

Petitioner-Appellant,

v.

JONATHAN R. WALLS, WARDEN,

Menard Correctional Center,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 C 5040—Charles P. Kocoras, Chief Judge.

____________

ARGUED MARCH 27, 2002—DECIDED JULY 23, 2002

____________

Before FLAUM, Chief Judge, BAUER and DIANE P. WOOD,

Circuit Judges.

BAUER, Circuit Judge. Robert St. Pierre committed two

brutal murders for hire in 1982. St. Pierre was tried and

convicted of the murders in Illinois state court in 1983. On

direct appeal, the Illinois Supreme Court reversed the

conviction and ordered a new trial based on the admission

of an improperly obtained confession. People v. St. Pierre,

522 N.E.2d 61 (Ill. 1988). On remand, St. Pierre accepted

responsibility and pled guilty to the two murders in 1989,

rather than face another trial. St. Pierre then exhausted

his state post-conviction remedies, People v. St. Pierre, 588

N.E.2d 1159 (Ill. 1992), and sought federal habeas relief.

2 No. 01-3480

The district court dismissed the petition for writ of ha-

beas corpus finding five of the seven claims had been pro-

cedurally defaulted and the other two lacked merit. St.

Pierre appealed, and we reversed the dismissal of six of the

seven claims, concluding they were not procedurally de-

faulted. St. Pierre v. Cowan, 217 F.3d 939 (7th Cir. 2000).

On remand, the district court granted the petition in part,

as to the sentencing phase, but denied it in all other re-

spects. United States ex rel. St. Pierre v. Cowan, 2001 WL

1001164 (N.D. Ill. Aug. 27, 2001). St. Pierre now appeals

the partial denial of the petition, arguing that his coun-

sel was ineffective at the pleading stage and that his guilty

plea was not made knowingly and voluntarily. The State

of Illinois decided not to cross-appeal the partial grant

of the petition for the sentencing phase; thus, regardless of

the outcome of this appeal, St. Pierre will receive a new

sentencing hearing.1 For the following reasons, we affirm

the denial of the remainder of the petition for writ of ha-

beas corpus.

BACKGROUND

At age 19, Robert St. Pierre was involved in a brutal mur-

der for hire scheme in 1982, just three weeks after he was

paroled from prison. Subsequently, St. Pierre developed a

friendship with a man named Barry Wilson. At the time,

Barry Wilson was dating one Jackie Gibons. Wilson be-

came angry with Jackie’s parents, Benjamin and Sybil

Gibons, because they had taken away Jackie’s credit cards

and no longer supplied her with cash. This caused Jackie

to be unable to supply Wilson with money, and so he de-

vised a scheme to kill her parents.

1

Although, the state could again seek the death penalty in the

new sentencing hearing, this is no longer a death penalty case

because there is currently no such penalty awaiting the defen-

dant.

No. 01-3480 3

Originally, Wilson planned on doing the job himself, and

had even bought a gun. However, Wilson’s attempt at mur-

der was thwarted when he fell through a window at the

Gibons’ home and abruptly fled. Wilson told Jackie about

the attempt and told her to clean up the mess he had made.

Instead, Jackie told her parents about Wilson’s attempt,

and they contacted the police.

A short time later, Jackie and Wilson met with St. Pierre

in downtown Chicago to discuss hiring St. Pierre to com-

mit the murders. They discussed the method, timing, and

payment in detail. St. Pierre agreed that he would kill Ben-

jamin and Sybil Gibons for $500 up-front for each murder

and $2,000 later (although as much as $10,000 was dis-

cussed). The plan called for St. Pierre to kill the Gibons at

around 6 p.m. that evening.

St. Pierre later met with Jackie Gibons in an alley be-

hind her workplace to verify that she still wanted the mur-

ders to take place. Reassured of Jackie’s intent, St. Pierre

went to the Gibons’ home in Skokie, Illinois, at 6:30 p.m.

Jackie introduced St. Pierre to her father (Sybil Gibons

was not at home), and St. Pierre spoke with Benjamin

Gibons for a while. Benjamin Gibons then proceeded into

the kitchen and St. Pierre picked up a hammer, followed

Benjamin into the kitchen and bludgeoned him to death.

After Benjamin was dead, St. Pierre robbed him, taking all

the money in his wallet. As planned, Jackie then called

Wilson, who came over, and the three cleaned up the bloody

kitchen, wrapped Benjamin Gibons’s body in a plastic bag,

and placed it in the master bedroom.

At 7 p.m., Detective McLaughlin called the home look-

ing for Benjamin Gibons to follow up on investigation of

the murder attempt by Wilson. Jackie told the detective

that her father was out and that she would have him return

the call when he came home. At approximately 7:10 p.m.,

Sybil Gibons called and asked Jackie to pick her up at the

4 No. 01-3480

Skokie Swift train station. First, Jackie drove Wilson to

a hardware store to buy some plastic bags, sheets, and

tape, and to a liquor store. Jackie drove Wilson back to

her home, and then went to the station to pick up her

mother. Upon arriving back at the home, Jackie let her

mother enter the home first. As planned, St. Pierre was

waiting in the hallway and he bludgeoned Sybil Gibons

to death, hitting her on the head with a hammer as she

walked through the front door of her own home. The killers

cleaned up the blood and wrapped Sybil Gibons’s body

in plastic. St. Pierre and Wilson punched a hole in the

wall leading to the driveway, so they could load the bodies

into the trunk without being seen. St. Pierre was to accom-

pany Wilson to dispose of the bodies in Arkansas (or Cal-

ifornia, accounts differ) and receive the rest of his money.

St. Pierre then went home and waited to take the trip and

collect his payment. Instead of picking up St. Pierre, Wilson

drove the bodies to New Mexico where he buried them in

a shallow grave.

A few days later Sybil Gibons’s sister contacted the po-

lice because Sybil had not been to work for several days.

A detective was dispatched to the Gibons’ home and there

he discovered evidence of the carnage that was not com-

pletely cleaned up by the killers. The detective also found

a belt belonging to St. Pierre, bearing his name and pris-

on identification number. The next day the police ques-

tioned Jackie Gibons and she gave the police a statement

about the murders. The police then apprehended St. Pierre;

Wilson was later arrested in Arizona.

St. Pierre was interviewed at the police station and given

his Miranda warnings multiple times. Initially he wished

to make a statement to the police, however, an assist-

ant state’s attorney arrived to question St. Pierre before

the police could obtain a statement. A court reporter was

present, and from the colloquy reprinted in the Illinois Su-

preme Court opinion it appears that St. Pierre wished to

No. 01-3480 5

make a statement, but was confused by the assistant state’s

attorney rehashing the Miranda issue. After confusing him-

self and St. Pierre, the state’s attorney attempted to re-

affirm his understanding that St. Pierre wished to give a

statement without a lawyer. St. Pierre responded: “No, no.

I don’t want a lawyer.” Thereafter, St. Pierre gave a state-

ment where he admitted his role in the murders described

above.

A. The First Trial & Appeal

A full and complete trial, including a mitigation hearing,

was held in 1983. Initially, the defense counsel moved to

suppress St. Pierre’s statement on the grounds that it was

taken in violation of his Fifth Amendment rights. The mo-

tion was denied. After hearing all the evidence described

above, the jury convicted St. Pierre on all counts and sen-

tenced him to death.

Although it appears that St. Pierre actually intended

to waive his right to counsel, the Illinois Supreme Court

found that the confession was improperly obtained. De-

spite the overwhelming evidence of guilt, including the

testimony of co-defendant Jackie Gibons, the court focused

on the effect confessions have on juries and trial strategy,

and reversed, concluding that it was not harmless error

to admit the confession. The case was then remanded for a

new trial.

B. The Second Trial

The new trial began in 1988, before Cook County Circuit

Judge Richard Neville. Judge Neville appointed Robert

Barasa, a seasoned trial attorney and former Cook County

6 No. 01-3480

Public Defender,2 as counsel for St. Pierre.3 In the initial

proceedings, a very short time after Barasa was appointed

counsel,4 St. Pierre announced his intention to plead guilty

to the charges.5

St. Pierre’s decision to plead guilty after winning on ap-

peal struck Judge Neville as odd and he ordered a compe-

tency hearing. St. Pierre’s counsel also told the judge his

concern that St. Pierre might be pleading improvidently

in order to avoid any further incarceration in the unpleas-

ant conditions at Cook County Jail. Counsel for St. Pierre

also suggested the examination. Judge Neville’s decision

was principally motivated by the intent not to create re-

versible error for failing to explore a potential issue.6

2

According to his deposition Barasa had murder trial experience

and had prepared an insanity defense before. These qualifications

are relevant because the only issue remaining in this case is coun-

sel’s pre-trial (pleading stage) conduct.

3

Outside counsel was appointed in lieu of a public defender due

to the conflict created by the representation of St. Pierre’s original

co-defendants.

4

According to his deposition, after being appointed counsel,

Barasa discussed numerous issues with St. Pierre, including two

possible defenses. “By the way, I did explain to him at length—the

other interesting part—legal angle I had, which was the insanity

defense . . . .”

5

In his deposition Barasa stated: “I did talk to him numerous

times about it [pleading guilty] because I was trying to talk him

out of it.” In addition, Barasa noted that he wanted to file motions

to suppress and motions in limine, but “I couldn’t file one because

he wouldn’t—he wouldn’t—the defendant would—persisted in a

plea of guilty.”

6

The dissent makes Judge Neville’s decision to hold a compe-

tency hearing a lynchpin of its argument that St. Pierre’s men-

tal health problems manifested themselves clearly and Barasa

(continued...)

No. 01-3480 7

After the examination, Judge Neville methodically went

through the consequences of pleading guilty with St. Pierre.

Judge Neville emphasized to St. Pierre that he was “again

cloaked with the presumption of innocence” and he had a

right to a trial in which the government has the burden to

prove him guilty beyond a reasonable doubt. The judge

then heard testimony from an impartial psychiatrist, Dr.

Albert Stipes, of the Cook County Psychiatric Institute.7

Dr. Albert Stipes had examined St. Pierre and opined

that St. Pierre was competent to stand trial.8 Dr. Stipes

stated that St. Pierre’s “knowledge of the charges against

him, as well as the proceedings and the duties of court

personnel, are quite sophisticated.”9 Counsel for St. Pierre

cross-examined Dr. Stipes on the issue of St. Pierre’s prob-

lems with the living conditions at the Cook County Jail.

6

(...continued)

was on notice. However, Judge Neville specifically noted that “it

should be made clear in the record that there was no general

indication of any specific abnormality on the part of Mr. St. Pierre

that required me to ask for an examination.” (emphasis added).

7

Dr. Stipes, as Barasa noted in his deposition, was an independ-

ent “qualified health professional.” (emphasis added).

8

Dr. Stipes had examined St. Pierre three other times before,

dating back to 1981. Dr. Stipes stated that he interviewed St.

Pierre for one hour and reviewed the “previous material.” In his

1981 report Dr. Stipes noted reviewing the defendant’s previous

history “available from the old reports.” Among the “old reports”

were undoubtably the reports of Dr. Stephen R. Cann, Judy A.

Condis and the Associated Mental Health Services, all of which

discuss St. Pierre’s childhood psychology reports and examina-

tions. See infra note 11.

9

In his deposition, Barasa noted that, at the time, St. Pierre

“knew—seemed to know exactly what was going on, knew all

about guilty pleas, looked like he had his whole case set up in his

mind before I even met the guy” and “he didn’t appear to be

insane.”

8 No. 01-3480

Before Dr. Stipes stepped down from the witness stand, the

judge asked St. Pierre if he had any questions for Dr.

Stipes. St. Pierre responded in the negative.

Following the expert testimony, Judge Neville made it

clear that he ordered the examination based on the unusual

circumstances of the case, and “there was no general in-

dication of any specific abnormality on the part of Mr. St.

Pierre that required me to ask for an examination.” Judge

Neville observed that St. Pierre had meaningfully partici-

pated in the proceedings and his defense. The judge ques-

tioned St. Pierre on the issue of whether he was plead-

ing guilty simply to return to Menard and avoid any

further stay at the Cook County Jail. (St. Pierre was more

than merely displeased with the conditions at Cook County;

he apparently had a boyfriend at Cook County who was

moved to Menard, so St. Pierre also sought to be moved

back to Menard for the duration of proceedings.) St. Pierre

stated, “I am pleading voluntarily.” When pressed on the

issue again, St. Pierre replied: “[T]o enter a plea of not

guilty, okay, when in fact I did commit the crime would

be tantamount to trying to get away with murder, and

that’s not my intention.” During the discussion St. Pierre’s

counsel stated that he did not recommend the plea, and

that he was still uncomfortable with his client’s decision,

but conceded that it was St. Pierre’s “wish to proceed as he

stated.”

1. Acceptance of the Guilty Plea

Following this lengthy investigation and hearing, Judge

Neville unequivocally concluded that St. Pierre under-

stood his rights, options, and made the decision to plead

guilty knowingly and voluntarily. Counsel for St. Pierre

also stated that he explained the possible repercussions of

a guilty plea to the defendant, and that death was a pos-

sible sentence. With counsel’s assistance St. Pierre signed

No. 01-3480 9

a written jury waiver. Thereafter, St. Pierre was allowed

to plead guilty to two counts each of murder, armed robbery

and concealment of a homicide.10

The next day, St. Pierre’s counsel filed a motion to with-

draw the plea based on the theory that St. Pierre only pled

guilty to escape further confinement at the Cook County

Jail. Before the motion was argued, St. Pierre interrupted

and emphatically stated that the motion was being made

by his attorney and against his wishes. St. Pierre’s coun-

sel argued that he was obligated to file the motion be-

cause, in his opinion, a defendant should not be allowed to

plead guilty in a capital case without an agreement and

the recommendation of his attorney. Once again, Judge

Neville covered the issue of whether St. Pierre was pleading

guilty to escape the conditions of confinement at the Cook

County Jail. St. Pierre made it clear that he was pleading

guilty voluntarily and stated: “I am not pleading guilty

merely to leave the facility. That, however, is one of the

reasons. But the main reason is that I am in fact guilty of

the crime.” The motion to withdraw the plea was denied.

2. Sentencing

St. Pierre waived his right to sentencing by a jury and the

right to a presentence report, but the judge noted that there

was a report prepared from the prior trial which could be

10

However, during the plea St. Pierre refused to plead guilty to

one of the counts of armed robbery, pertaining to Sybil Gibons.

The judge read the indictment for armed robbery as being pred-

icated on the theft of Sybil Gibons’ wedding ring. St. Pierre hotly

contested this fact, stating he “did not take the ring.” The judge

corrected himself, finding the ring was not listed in the indict-

ment, and St. Pierre then pled guilty to the robbery count.

10 No. 01-3480

used.11 St. Pierre stated that he did not want a mitigation

hearing. The judge proceeded with the aggravation phase,

and strongly encouraged St. Pierre to ask for a mitigation

hearing. The judge even gave St. Pierre time to think about

it overnight.

The next day Judge Neville again admonished him to

request a mitigation hearing, and allowed St. Pierre to

consider the option while the state put on evidence of ag-

gravating factors. St. Pierre finally told his counsel that

he would agree to a mitigation hearing, if it could pro-

ceed “expeditiously”. The judge asked counsel if he needed

any time to prepare witnesses, and counsel noted that

Monte Williams, an unlicenced psychologist working for the

DOC at Menard, could be a potential mitigation witness.12

11

The Presentence Investigation Report (PSR), conducted in

1983 for the first trial, noted St. Pierre’s two prior convictions for

theft, his mental health and substance abuse history, and has

several psychiatric summaries attached. This included the 1980

psychiatric summary prepared by Dr. Stephen R. Cann, conclud-

ing St. Pierre had no formal psychological disorders and was fit

to stand trial for theft. Another summary by psychologist Judy

A. Condis was also attached. This summary noted that St. Pierre

was manipulative. Lastly, Dr. Stipes’ 1981 evaluation was ap-

pended to the PSR. In this report Dr. Stipes also noted that St.

Pierre learned to manipulate the jail system by feigning psychiat-

ric illness. St. Pierre had cut his wrists while in the “bull pen”

(holding cell) because he knew that he would be transferred out

of a particular area. St. Pierre then stated he was suicidal and

was put in “RTU”, which Dr. Stipes noted is “safer because there

are not gangs there.” St. Pierre stated that he learned these

tactics from other prisoners. Dr. Stipes conducted an array of tests

and concluded St. Pierre was antisocial, but fit for trial and sane

at the time of the theft.

12

The dissent claims Monte Williams was unqualified and that his

testimony was not beneficial. While we do not quibble with the

(continued...)

No. 01-3480 11

St. Pierre still wished to proceed with haste, but relented

and allowed counsel time to call Williams.

At the next court appearance, counsel for St. Pierre filed

a motion to have St. Pierre’s sanity at the time of the

crime determined. St. Pierre clearly stated that he wished

to proceed with the mitigation hearing and not with coun-

sel’s motion. The rejection of this issue by St. Pierre was

nothing new, counsel had previously suggested using

insanity as a defense at trial, but it was squarely rejected

by St. Pierre. Over St. Pierre’s objections, Judge Neville al-

lowed Williams to testify as an expert in support of the

motion and in mitigation.

During the hearing Williams testified that he spoke with

St. Pierre several times over the course of four years. They

usually spoke about things other than the murder, which

they spoke about only once, three years before Williams

testified. Williams discussed his shared intellectual inter-

ests with St. Pierre, including Egyptology and writing.

Williams did not bring St. Pierre’s file to court because

he believed confidentiality rules prohibited its disclosure,

which made his testimony disjointed.13 Williams diagnosed

12

(...continued)

latter point, the record is clear that Monte Williams had signifi-

cant experience in the field of psychology. Despite his unusual

specialization—forensic psychology—Williams had a masters de-

gree in counseling psychology, post-graduate training, and over

fifteen years of experience in the mental health profession. More-

over, Williams had testified as an expert witness between ten and

twenty times, and “used to do it on a routine basis for the De-

partment of Mental Health in fitness for involuntary commitment

hearings, chiefly, but also hearings in competency to stand trial”.

13

Williams’ excuse is inconsistent with Barasa’s deposition tes-

timony. Barasa stated that he convinced St. Pierre to sign all the

necessary waivers to allow the disclosure of the files. Barasa’s

version of events is supported by a court order.

12 No. 01-3480

St. Pierre as having adjustment disorder with mixed emo-

tional features and substance abuse disorder. On cross-

examination Williams conceded that such problems are

surely not uncommon among prisoners. Williams also

acknowledged that two licensed psychiatrists at Menard

(Dr. Gupta and Dr. Vallabhaneni) examined St. Pierre

and filed reports, neither concluded that St. Pierre was

psychotic. Additionally, Williams did not properly state the

legal standard for insanity and the state objected to his

testimony on foundation grounds, so the judge found Wil-

liams could not provide an expert opinion concerning St.

Pierre’s sanity.

In support of the motion and as part of the mitiga-

tion evidence, defense counsel introduced another fitness

report on St. Pierre, prepared for the first trial by Associ-

ated Mental Health Services. The report, composed by

Dr. Braun, found St. Pierre had an antisocial personality

disorder with feelings of inadequacy. The report also stated

that St. Pierre’s “mental status . . . [was] basically with-

in normal limits.” The report concluded: “Mr. Robert St.

Pierre competent to stand trial . . . [and] [h]e understands

the nature of his offense and can participate in his defense.”

This report was based on records and reports from Illinois

Masonic Hospital, Cermack Hospital, the Department

of Children and Family Services (DCFS), River Trails

School, the Institute for Applied Behavioral and Psychiatric

Research, J.F. Steffens and Associates, and the Illinois

Department of Corrections.14 After hearing all the evidence,

Judge Neville denied counsel’s motion to determine sanity

at the time of the crime.

14

Substantively, these are the same records St. Pierre’s counsel

and the dissent claim no one ever looked at prior to private coun-

sel issuing “garden-variety subpoenas”. See supra note 11 and

infra notes 22-24, 26.

No. 01-3480 13

St. Pierre’s counsel also called Father John P. Smyth, of

Maryville Academy, to testify in mitigation.15 Father

Smyth testified about St. Pierre’s parents, school and fam-

ily experiences. The testimony of Raymond Chodorowski,

St. Pierre’s half-brother, from the first trial was read into

the record. Chodorowski had testified about St. Pierre’s

early childhood and family life. Finally, St. Pierre tes-

tified describing his childhood, family life, parents, and

living in a group home. St. Pierre noted his current inter-

ests in grammar, poetry, and ancient Egypt, and stated that

life in prison would allow him time to accomplish certain

goals. In his plea for a sentence of life in prison, St. Pierre

particularly emphasized his acceptance of responsibility.

Judge Neville went through each of the statutory mitigat-

ing factors, and while he noted that St. Pierre suffered

from childhood neglect and the lack of a good upbringing,

these misfortunes were no excuse for the crimes. The judge

noted that the crime was brutally committed in cold blood,

for profit, and after the crime St. Pierre told several peo-

ple he might be able to get some of the Gibons’ property

for them. The judge took into consideration the plan-

ning involved in the crime, the fact it was done without

warning, for no defensible reason, and that there was

significant waiting time between the murders of Benjamin

and Sybil Gibons. The judge found that St. Pierre was

not remorseful, and, in fact, he was emboldened by the

enhanced status he gained in the criminal community by

committing the murders. Judge Neville concluded that

death was the appropriate sentence.

15

Barasa also stated in his deposition that he “nose[d] around” at

Maryville, attempting to find any other potential witnesses or

mitigating evidence.

14 No. 01-3480

3. Post-Sentencing Motions

In 1989, St. Pierre’s counsel filed a number of post-

sentencing motions, and the issue of St. Pierre’s mental

state at the time of the murders was again raised. Judge

Neville ordered St. Pierre examined again. Dr. Stipes,

examining St. Pierre for the fifth time, concluded that

St. Pierre was sane at the time of the murders and able

to appreciate the criminality of his conduct. The motions

were denied.

C. State Post-Conviction Proceedings

In 1995, counsel for St. Pierre filed for post-convic-

tion relief. At the same time, St. Pierre filed several

motions pro se attempting to waive any further appeals.

The Illinois Supreme Court appointed a guardian ad litem

for St. Pierre, appellate counsel, and ordered a competency

hearing to determine if St. Pierre was competent to waive

further appeals.16 The matter was sent to Judge Neville,

and a series of hearings were conducted. St. Pierre main-

tained that he wished to waive any further appeals.

The guardian called a psychiatrist, Dr. Henry W.

Lahemyer, to testify. Dr. Lahemyer interviewed St. Pierre

for a total of two hours. Dr. Lahemyer opined that St. Pierre

had an antisocial personality, suffered from bipolar disor-

der, and was not fit to make decisions. St. Pierre’s other

post-conviction counsel, five private attorneys providing

services pro bono, called psychiatrist Dr. Henry J. Conroe

16

The dissent claims the issues of mental health and bipolar

disorder were “never considered by the state trial court”. However,

St. Pierre’s mental health was the sole focus of the post-conviction

proceeding outlined above. A guardian was appointed, more

experts were called, and still the judge concluded that St. Pierre

was fit to waive any further appeals.

No. 01-3480 15

to testify. Dr. Conroe interviewed St. Pierre for one and a

half hours and reviewed prior medical records. Dr. Conroe

opined that St. Pierre has a bipolar disorder as well as

an antisocial personality with schizotypal features that

substantially impairs his ability to make decisions and

cooperate with counsel. The Cook County State’s Attorney

called Dr. Albert Stipes. Dr. Stipes examined St. Pierre

for the sixth time, spoke with St. Pierre for nearly two

hours, and reviewed all prior medical reports and rele-

vant testimony. Dr. Stipes found St. Pierre has an antiso-

cial personality with borderline features, and concluded St.

Pierre was capable of waiving his rights. St. Pierre’s ap-

pointed counsel called Dr. Jonathan Kelly. Dr. Kelly also

examined St. Pierre and the prior records, and Dr. Kelly

opined that while St. Pierre has a bipolar disorder and

antisocial personality, he is capable of making rational

decisions and cooperating with counsel. Based on all of the

expert testimony Judge Neville concluded that although

St. Pierre may suffer from a psychiatric disorder, it did not

interfere with his ability to rationally decide to waive his

appeals.

After the proceedings were concluded, St. Pierre, pro se,

again sought to waive his appeals, and several days later to

retract that waiver. In the time between the request for

waiver and the retraction, the Illinois Supreme Court

granted the motion to waive the appeals and set an execu-

tion date.

D. Habeas Proceedings

In late 1995, the private attorneys working pro bono filed

for habeas relief in federal district court. The attorneys sub-

poenaed a number of documents relating to St. Pierre’s

childhood, which, according to them, show a troubled child-

hood and psychological problems. In early 1996, St. Pierre,

pro se, filed a motion to dismiss the habeas petition and

16 No. 01-3480

waive further federal review. According to his attorneys,

St. Pierre asked them to withdraw the motion two days

later. The district court issued a decision dismissing the

petition on the merits, finding that St. Pierre had proce-

durally defaulted on five of the seven claims for habeas

relief. This court reversed the finding of procedural default

and remanded the case. St. Pierre v. Cowan, 217 F.3d 939

(7th Cir. 2000).

On remand, St. Pierre asserted claims of ineffective as-

sistance of counsel, both in the pleading stage and the

penalty phase. He also challenged his own fitness to stand

trial and the validity of the guilty plea. The district court

granted the petition in part, as to the penalty phase, and

denied the remainder of the claims.

The district court found that based on the evidence St.

Pierre was fit at the time of trial and that the guilty plea

was properly taken. The court concluded that counsel’s ser-

vices were not deficient in the pleading stage. “[N]ot open

to question was St. Pierre’s knowing and voluntary desire

to plead guilty.” United States ex rel. St. Pierre, 2001 WL

1001164 at *11. When it came to the penalty phase, the

district court indicated that counsel had a “greater obliga-

tion to discover and evaluate potential evidence of mitiga-

tion.” Id. *12-13. The court found that because counsel

did not subpoena St. Pierre’s childhood records, counsel’s

performance was constitutionally deficient in the penalty

phase of the proceedings. “[W]e cannot say with any con-

fidence that St. Pierre’s possible bipolar [disorder] would

not have changed the Judge’s decision to impose capital

punishment.” Id. at *14.

ANALYSIS

A. Standard of Review

St. Pierre petitioned for a writ of habeas corpus, and our

review is a narrow deferential review for constitutional

No. 01-3480 17

error, not an archaeological digging expedition to be con-

ducted twenty years after the crime occurred and after

numerous courts have reviewed the issues and facts first-

hand. See, e.g., Foster v. Schomig, 223 F.3d 626, 634 &

n.4 (7th Cir. 2000) (“Given the context of the actual hear-

ing, and not based on what the witnesses could or could not

recall thirteen years later, not calling Dr. Rossiter was en-

tirely reasonable.”) (emphasis added); Jones v. Page, 76

F.3d 831, 839 (7th Cir. 1996); Milone v. Camp, 22 F.3d

693, 698-99 (7th Cir. 1994) (“Federal courts can grant ha-

beas relief only when there is a violation of federal stat-

utory or constitutional law”). The factual findings of both

the state court and district courts are reviewed deferen-

tially, including the numerous findings relating to compe-

tency. We review the district court’s factual findings under

the clearly erroneous standard and legal conclusions de

novo.17 E.g., Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.

1996). We presume the factual conclusions of the state

courts correct if they were “made after a hearing on the

merits and are fairly supported by the record,” unless sub-

stantially demonstrated otherwise. Id.; Rodriguez v. Peters,

63 F.3d 546, 554 (7th Cir. 1995); Montgomery v. Greer,

956 F.2d 677, 680 (7th Cir. 1992).

17

As we noted in the prior appeal, St. Pierre v. Cowan, 217 F.3d

939, 940 (7th Cir. 2000), St. Pierre’s habeas petition was filed

before the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214.

Hence, the pre-AEDPA standards (which are still deferential)

apply to this case. See Lindh v. Murphy, 521 U.S. 320, 335-36

(1997); Williams v. Taylor, 529 U.S. 362, 402-03 (2000) (plurality

opinion) (majority for Part II by O’Connor, J.). If, after receiving

a new sentencing hearing, St. Pierre again files a habeas petition,

AEDPA’s substantially more strict standards will apply. See

Lindh, 521 U.S. at 335-36.

18 No. 01-3480

B. Ineffective Assistance of Counsel

1. Strickland Standard

The Sixth Amendment challenge to the effectiveness

of St. Pierre’s counsel is governed by the deferential stan-

dard announced in Strickland v. Washington, 466 U.S. 668,

684-98 (1984). St. Pierre has the burden of proving that:

“counsel’s performance was deficient”; and “the deficient

performance prejudiced the defense”. Id. at 687. In consid-

ering the first element, the Supreme Court has instructed

courts not to engage in “the distorting effects of hindsight,”

and to “evaluate the conduct from counsel’s perspective

at the time.” Id. at 688-91. In addition, courts must “in-

dulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assis-

tance.” Id.; Kimmelman v. Morrison, 477 U.S. 365, 382

(1986). In order to demonstrate the prejudice element, the

defendant must “show that there is a reasonable probabil-

ity that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Strickland,

466 U.S. at 694.

Although St. Pierre was not tried, the Strickland test

still applies to counsel’s conduct during the pleading stage.

See Hill v. Lockhart, 474 U.S. 52, 57 (1985); Jones, 76 F.3d

at 840. In the context of guilty pleas, challenged on the

grounds of ineffective assistance of counsel, the first part

of the Strickland analysis is the same; however, the prej-

udice requirement is altered, requiring the defendant to

establish: “but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.”

Hill, 474 U.S. at 58-59 (emphasis added). Yet, a lawyer

need not advise his client of “every defense or argument

or tactic that while theoretically possible is hopeless as

a practical matter.” Evans v. Meyer, 742 F.2d 371, 374

(7th Cir. 1984) (emphasis added). Just because there is no

“bona fide defense to the charge” does not mean that coun-

No. 01-3480 19

sel need manufacture one. United States v. Chronic, 466

U.S. 648, 656-57 n.19 (1984).

2. St. Pierre’s Challenge to Counsel’s Performance at the

Pleading Phase

St. Pierre advances three arguments supporting his inef-

fective assistance of counsel claim: (1) counsel failed to

investigate and obtain eight reports from St. Pierre’s child-

hood, some of which pertain to his mental health; (2) coun-

sel failed to have St. Pierre examined by a mental health

expert; and (3) counsel failed to advise St. Pierre about the

possibility of an insanity defense. St. Pierre attempts to

bolster these arguments using the district court’s conclusion

that counsel’s performance was deficient in the sentenc-

ing hearing. We discuss each of St. Pierre’s argument in

turn, starting with the last.

According to Robert Barasa’ s deposition, he did discuss

the possibility of an insanity defense with St. Pierre. St.

Pierre dismissed the idea, just as he openly stated he

did not want an evaluation or testimony about whether he

was sane at the time of the crime during the post-trial

motions and sentencing hearing.

Even if Barasa had not discussed an insanity defense

with St. Pierre, that does not mean his performance was

deficient. Counsel is not required to discuss every pos-

sible defense with the defendant, especially one not sug-

gested by any evidence.18 See Evans, 742 F.2d at 374. St.

Pierre decided to plead guilty, against the advice of

his attorney, and after a finding of competency. At the time

St. Pierre pled guilty, there were multiple psychiatric re-

ports available regarding his competency. Dr. Stipes tes-

18

This portion of the discussion also applies to the second of St.

Pierre’s arguments.

20 No. 01-3480

tified pursuant to court order, the Associated Mental Health

Services report prepared by Dr. Braun, from the first tri-

al, was available and later used in the mitigation hear-

ing, and the reports of Dr. Stephen R. Cann and psycholo-

gist Judy A. Condis were appended to the PSR. All of

these reports, in addition to the personal observations by

Barasa and Judge Neville, gave no indication of any

psychological problems with St. Pierre at the time of the

plea. Also, Barasa spoke with the attorneys from the first

trial, who gave no indication that St. Pierre was mentally

unfit at the time of the crime or first trial. Avoiding “the

distorting effects of hindsight” and viewing this situation

“from counsel’s perspective at the time,” we conclude coun-

sel’s conduct was proper under the circumstances because

there were no indications of mental instability at the time

St. Pierre pled guilty. Strickland, 466 U.S. at 689.

St. Pierre attempts to buttress the second and third argu-

ments with the testimony of prison psychologist Monte

Williams, and the two new psychological reports declar-

ing him presently incompetent and diagnosing him with

bipolar disorder. However, Monte Williams’ opinion was

contradicted by the report of two licensed psychiatrists

at Menard. Thus, after the plea was accepted there were

four qualified expert reports declaring St. Pierre in accept-

able mental health, and the testimony of an unlicenced

prison psychologist with no records to support his opinion,

concluding St. Pierre possibly insane at the time of the

crime. To include Williams’ testimony—or the new reports

for that matter19—in the calculus would be to engage in

19

The dissent has clearly engaged in using the “distorting effects

of hindsight”, beginning with the very first paragraph where the

dissent assumes the existence of “St. Pierre’s mental illness”. The

dissent claims St. Pierre’s behavior was erratic. The claimed in-

stances of erratic behavior began well after St. Pierre pled guilty,

(continued...)

No. 01-3480 21

“the distorting effects of hindsight” because Williams did

not testify until the penalty phase, and there is no testi-

mony demonstrating that counsel was aware, or should

have been aware, of Williams’ opinion during the pleading

phase. Id.

Moreover, St. Pierre cannot demonstrate prejudice

based on his second and third arguments. In affidavits sup-

porting his habeas petition, St. Pierre now claims that had

he known about the possibility of an insanity defense he

would not have pled guilty. However, the question is not

what St. Pierre would do now, but what he would have done

at the time had he known. Strickland, 466 U.S. at 694-96;

Hill, 474 U.S. at 58-59. St. Pierre insisted on pleading

guilty, despite Barasa’s repeated and numerous attempts

to dissuade him. Even more telling is the motion filed

by Barasa to withdraw St. Pierre’s guilty plea. St. Pierre

interrupted the proceedings immediately after Barasa

stated his intent, unequivocally stating that the motion to

withdraw the plea was being filed against his wishes.20

19

(...continued)

in the post-conviction proceedings where he attempted to waive

his appeals. As noted, it appears that St. Pierre always wished to

waive his appeals, while his attorneys attempted to convince him

otherwise (or simply acted in a manner inconsistent with his

wishes), creating the appearance of erratic behavior. However, St.

Pierre’s conduct at the time he pled guilty, his conduct in the prior

trial, and every psychological report prepared up to the time he

pled guilty, indicated he was participating fully in his own defense

and could make rational, reasoned decisions.

20

The dissent suggests that a guardian should have been ap-

pointed for St. Pierre. Once again, we point out there was no evi-

dence at the time St. Pierre pled guilty and still there exists little

evidence—demonstrating St. Pierre could not make rational and

voluntary decisions. The dissent selectively cites a few isolated

facts claiming Barasa should have declared St. Pierre incompe-

(continued...)

22 No. 01-3480

No matter what Barasa said or did St. Pierre intended to

take responsibility for his crimes and plead guilty. Thus,

St. Pierre cannot show “but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going

to trial.” Hill, 474 U.S. at 58-59 (emphasis added).

Next we discuss whether counsel’s failure to investi-

gate and obtain eight reports from St. Pierre’s childhood

constitutes ineffective assistance. We begin by noting

that counsel only “has a duty to make reasonable investiga-

tions.” Strickland, 466 U.S. at 690-91 (emphasis added);

Earl v. Israel, 765 F.2d 91, 93 (7th Cir. 1985) (holding

that “if it is reasonable in the circumstances not to con-

duct a particular investigation, the lawyer’s failure to do

so will not establish ineffective representation.”). Figur-

ing importantly in this assessment is the influence of the

defendant’s words and demeanor, and information sup-

plied by the defendant. Strickland, 466 U.S. at 690-92.

By all accounts, St. Pierre understood and actively par-

ticipated in the court proceedings and his defense. Coun-

sel spoke with St. Pierre numerous times and learned

about St. Pierre’s troubled childhood and background, but

St. Pierre mentioned nothing about a history of mental

problems. In addition, all the available medical expert eval-

20

(...continued)

tent. St. Pierre’s desire to leave Cook County Jail is explained by

his realization that the evidence clearly showed he committed a

brutal crime—which St. Pierre does not dispute—and was going

to prison, the only real questions were how soon and where. The

dissent’s suggestion that any defendant who acts in an erratic

manner must have a guardian appointed and a multiple expert

competency hearing held would put our criminal justice system at

the mercy of defendants who could feign mental illness—some-

thing St. Pierre is no stranger to doing—and require justice not be

based on law, but on the ever evolving and changing practice of

psychiatry, where experts infinitely disagree. See supra note 11

and infra note 26.

No. 01-3480 23

uations concluded St. Pierre was competent to stand trial

and plead guilty.21 Under the circumstances it was certain-

ly reasonable for counsel not to conduct any further inves-

tigation into St. Pierre’s childhood regarding mental

competence at this stage in the proceedings. See Jones, 76

F.3d at 841-45; United States ex rel. Rivera v. Franzen,

794 F.2d 314, 316-17 (7th Cir. 1986) (noting defense attor-

neys have no general Sixth Amendment duty “to explore

their clients’ mental capacity in every case”); Earl, 765

F.2d at 93; Wright v. Walls, 288 F.3d 937, 947 (7th Cir.

2002) (“An attorney’s investigation need not be unlimited

in scope or unerring in execution, but merely reasonable.”).

More importantly, it was St. Pierre himself who pre-

cluded counsel from even putting on a defense. Counsel can-

not be considered ineffective when a competent defendant

makes the informed choice not to put on a defense and

instead plead guilty to the charges. Strickland, 466 U.S. at

690-92 (“Counsel’s actions are usually based, quite prop-

erly, on informed strategic choices made by the defendant

and on information supplied by the defendant.”) (emphasis

added); Burger v. Kemp, 483 U.S. 776, 794-95 (1987) (“ ‘And

when a defendant has given counsel reason to believe that

pursuing certain investigations would be fruitless or even

harmful, counsel’s failure to pursue those investigations

may not later be challenged as unreasonable.’ ”) (quot-

ing Strickland, 466 U.S. at 691); Davis v. Greer, 13 F.3d

21

The dissent focuses on a few favorable facts, failing to mention

not only St. Pierre’s own conduct—which the dissent claims we

overemphasize—but that more than four psychological reports all

concluded St. Pierre was competent before he pled guilty. With

this mountain of evidence against a finding of incompetency,

Barasa cannot be faulted for failing to launch a full-scale expedi-

tion into the exploration of St. Pierre’s mental workings in

the short time between his appointment and St. Pierre’s guilty

plea.

24 No. 01-3480

1134, 1139 (7th Cir. 1994) (holding that a defendant’s in-

formed choice of strategy, precluding counsel from putting

on a particular defense, cannot later constitute the basis

of an ineffective assistance of counsel claim); United States

v. Weaver, 882 F.2d 1128, 1140 (7th Cir. 1989). St. Pierre’s

decision also precluded Barasa from having the time to

develop facts favorable to St. Pierre. Barasa first appeared

on behalf of St. Pierre May 19, 1988, and less than two

months later St. Pierre voluntarily pled guilty on August 8,

1988. Counsel’s performance was not ineffective by fail-

ing to obtain the additional reports because St. Pierre’s

strategic decision to plead guilty prevented further investi-

gation by counsel.

St. Pierre cannot demonstrate prejudice. St. Pierre’s argu-

ment regarding the failure to obtain these documents is

built on a number of assumptions, not the least of which is

that these documents would have been admissible,22 shown

a mental disorder23 and provided St. Pierre with an insanity

22

In order for the documents to be used by the expert they

must first be admissible or the expert’s testimony will lack found-

ation. See Pecoraro v. Walls, 286 F.3d 439, 446 (7th Cir. 2002)

(“But the facts must somehow be gotten into the record for expert

testimony premised on them to be admissible.”). Many of the

documents are appended to St. Pierre’s motion have been copied

so many times that they are unreadable.

23

The defense and the dissent claim St. Pierre suffers from bipo-

lar disorder. Bipolar disorder cannot be diagnosed with physiolog-

ical tests, instead the diagnosis is made by a psychologist or psy-

chiatrist on the basis of observation of a number of possible symp-

toms and family history. See NAT’L INST. OF MENTAL HEALTH,

DEP’T OF HEALTH & HUM. SERVICES, PUBLICATION NO. 01-3679,

BIPOLAR DISORDER 6-7 (2002). Though the disorder can develop

during childhood, many people do not develop the disorder until

late adulthood. Id. at 2. Sometimes the disorder is misdiagnosed

as schizophrenia. Id. at 5. Hence, reasonable experts could dis-

(continued...)

No. 01-3480 25

defense,24 and St. Pierre would not have still pled guilty.

The argument fails because many of the documents St.

Pierre now claims would have changed the outcome were

previously examined and noted in the Associated Men-

23

(...continued)

agree as to a particular diagnosis, its overall effect on a particular

person, and when it began. See infra note 15. Moreover, because

it is so judgment and observationally based, it would be extremely

difficult for a psychiatrist examining a person today to positively

conclude that a person suffered from the disorder twenty years

prior. Part of St. Pierre’s argument is predicated on the assump-

tion that the past diagnoses were incorrect. However, that sim-

plistic assertion does not account for the passage of time; assum-

ing St. Pierre is right doesn’t mean that the diagnosis based on

the medical science twenty years ago was wrong. Since the find-

ings of fact were made twenty years ago and are entitled to

deference, we should judge the medical findings based on a

twenty-year-old standard, not one of today. Cf. Eddmonds v.

Peters, 93 F.3d 1307, 1321 n.3 (7th Cir. 1996). Of course, all of

this argumentation is an attempt to induce this court to disregard

the Strickland standards and launch our own fact-finding ex-

pedition into mental health issues which the defense experts

disagree on today.

24

Bipolar disorder (a.k.a. manic-depressive illness) is a brain

disorder which affects a person’s mood. See NIMH, PUB. NO. 01-

3679, BIPOLAR DISORDER at 2-3. A person suffering from bipolar

disorder will typically have feelings of extreme highs and lows

(extreme in relation to normal highs and lows of life experienced

every day by people). Id. Applicable here, would be the symptoms

of restlessness, extreme irritability, distractability, poor judge-

ment, aggressive behavior and drug abuse. Id. at 4. 20-21. Over

time the symptoms tend to worsen, unless treated. Id. at 9. Thus,

St. Pierre should be even more manic today than he was twenty

years ago. However, based on his pro se filings in federal court, St.

Pierre comes off as articulate and rational when describing his

current situation. As acknowledged by defense expert Dr. Kelly,

a person with bipolar disorder can still be capable of rational

decision making. Id. at 5-6, 20-21.

26 No. 01-3480

tal Health Services report by Dr. Braun. Even with those

documents Dr. Braun concluded that St. Pierre’s “mental

status . . . [was] basically within normal limits.” As noted

before, counsel did suggest an insanity defense, which was

struck down by St. Pierre, deciding to plead guilty instead.

Regardless of the introduction of these documents the pro-

ceedings would not have been different.

St. Pierre attempts to parlay the district court’s determi-

nation that counsel’s performance was ineffective at the

penalty phase into a finding that counsel’s performance

during the pleading phase was likewise incompetent. The

two findings do create an apparent inconsistency. Cf. Bracy

v. Schomig, 286 F.3d 406, 419-26 (7th Cir. 2002) (en banc)

(Posner, J., concurring and dissenting). The inconsistency

is primarily explained by the differing performance stan-

dards between trial and death penalty mitigation hearings.

See id. at 412, 415 (majority opinion) (stating “death is

different”). See also Jonathan P. Tomes, Damned If You Do,

Damned If You Don’t: The Use of Mitigation Experts in

Death Penalty Litigation, 24 AM. J. CRIM. L. 359 (1997) (ap-

propriately titled). In Strickland, the Supreme Court ap-

plied the same standard to a trial and a separate penalty

hearing. Strickland, 466 U.S. at 684-87 (“The same princi-

ple applies to a capital sentencing proceeding”). In later

cases, the Court has continued to apply the same standard

to determine ineffectiveness of counsel at both trial and

sentencing proceedings. See, e.g., Darden v. Wainwright,

477 U.S. 168, 184-87 (1986); Williams v. Taylor, 529 U.S.

362, 390-98 (2000) (reaffirming the Court’s adherence to,

and continued application of, the Strickland standard).

Nevertheless, this circuit has held defense counsel to a

higher standard at the sentencing phase where death is a

possible sentence. See, e.g., Kubat v. Thieret, 867 F.2d 351,

369 (7th Cir. 1989) ( “[W]e hold that defense counsel must

make a significant effort, based on reasonable investiga-

tion and logical argument, to ably present the defendant’s

No. 01-3480 27

fate to the jury and to focus the attention of the jury on

any mitigating factors.”). Even this inconsistency is poten-

tially explained by the fact that nearly anything is admissi-

ble in mitigation, regardless of whether it would be admissi-

ble at trial. See 720 ILCS § 5/9-1(e) (West 2000) (“Any

information relevant to any additional aggravating factors

or any mitigating factors indicated in subsection (c) may be

presented by the State or defendant regardless of its ad-

missibility under the rules governing the admission of

evidence at criminal trials.”); People v. Jones, 447 N.E.2d

161, 165-67 (Ill. 1982) (quoting the 1979 version, which

would have applied at St. Pierre’s hearing, which is ex-

actly the same standard as the current statutory version).

While a defendant’s mental state at the time of the crime

might not rise to the level of a defense to the crime, it can

be relevant in a mitigation hearing. See 720 ILCS § 5/9-

1(c)(1) (West 2000) (“[T]he murder was committed while

the defendant was under the influence of extreme mental

or emotional disturbance, although not such as to consti-

tute a defense to prosecution”). Hence, the availability of

additional evidence increases counsel’s duty to investigate,

within reasonable limits. See Stewart v. Gramley, 74 F.3d

132, 135-37 (7th Cir. 1996) (“Presumably the lawyer is

not required to investigate the defendant’s past with the

thoroughness of a biographer.”).

Of course, the availability and admissibility of practi-

cally any evidence is a double-edged sword. If counsel in-

troduces mitigating evidence the prosecution can rebut

with other evidence, which may turn out to be substan-

tially more damaging. See Darden, 477 U.S. at 185-86;

Foster, 223 F.3d at 631-39 (“As we have noted before in

cases like this one, there is a strong possibility that the

defendant’s mitigation evidence might turn out to be ag-

gravating.”); Emerson v. Gramley, 91 F.3d 898, 906-07 (7th

Cir. 1996) (“The narratives that defense counsel and their

‘mitigation specialists’ present often contain material that

28 No. 01-3480

the jury is likely to consider aggravating rather than mit-

igating.”). Because of the increased investigative burden,

St. Pierre’s counsel could be found to have been deficient

for not uncovering mitigating evidence of childhood men-

tal illness at the penalty phase, but not be deficient for

failing to present the same evidence during the pleading

phase.25

Just about all of the cases relied upon by the district

court found counsel’s performance deficient in the pen-

alty phase because counsel failed to present any evidence

in mitigation. See Kubat, 867 F.2d at 368 (finding defense

counsel’s performance deficient by contacting only two of

the known fifteen character witnesses before trial and

calling none to testify in mitigation, relying instead on a

plea for mercy); Emerson, 91 F.3d at 907 (affirming the

grant of habeas as to the sentencing phase because “no

evidence whatsoever in mitigation, or even argument, was

presented.”); Brewer v. Aiken, 935 F.2d 850, 856-58 (7th

Cir. 1991) (finding that counsel’s failure to investigate

and present any mitigating evidence at the sentencing

25

The dissent makes a second assumption that seems fatal to

its own argument, that St. Pierre’s claimed mental illness was so

severe as to prevent rational decision making. And the dissent,

throughout its opinion, seems to confuse the evidence of a mental

illness and the evidence of a mental illness which impairs rational

decision making. The two are clearly distinguishable. St. Pierre’s

supposed mental illness might have an effect on a judge or jury

during a mitigation hearing, but only a severe, debilitating mental

illness could make St. Pierre incompetent if proved to a judge or

jury. Moreover, only two of the new expert reports prepared by

defense counsel support the dissent’s assumption, while yet

another defense expert found St. Pierre’s mental illness did not

interfere with his ability to make rational decisions. See infra note

26. (Not to mention the nine other reports or examinations, all of

which concluded that St. Pierre was able to make rational and

voluntary decisions. See supra notes 11, 22-24 and infra note 26.)

No. 01-3480 29

phase prejudiced the defense); Antwine v. Delo, 54 F.3d

1357, 1365-68 (8th Cir. 1995) (upholding the conviction but

finding counsel ineffective at the sentencing phase for

failing to present evidence of defendant’s mental illness and

presenting only a plea for mercy); see also Patrasso v.

Nelson, 121 F.3d 297, 303-05 (7th Cir. 1997). In contrast,

St. Pierre’s counsel presented significant evidence in mit-

igation, including three live witnesses (Monte Williams,

Fr. Smyth, and St. Pierre), testimony by stipulation (Ray-

mond Chodorowski), and the Associated Mental Health

Services report. These witnesses provided substantially

all of the same evidence regarding St. Pierre’s childhood

experiences that St. Pierre now asserts is in the reports

and would have made the difference if it was investi-

gated and introduced. See Darden, 477 U.S. at 185-87 (find-

ing counsel’s decision not to introduce a psychiatric report

and instead rely on a plea of mercy was reasonable); Foster,

223 F.3d at 631-39 (holding that counsel’s performance

was not ineffective for deciding not to call an expert to

testify about defendant’s mental state because it might

do more harm than good); Stewart, 74 F.3d at 135-37 (find-

ing attorney’s failure to fully investigate defendant’s his-

tory of drug use or potential brain damage was not ineffec-

tive assistance of counsel because the additional evidence

would not have made a difference).

Simply because there is additional evidence of a rough

life, deprived childhood, or mental instability does not nec-

essarily make it less likely the death sentence will be

imposed. Historical facts that show a defendant has a con-

dition or proclivity toward violence are often aggravat-

ing, not redeeming or mitigating factors. See Stewart, 74

F.3d at 139 (“And since it obviously is not the theory of

capital punishment that murderers are compelled to mur-

der by their past and therefore should not be punished, it

cannot be right that anything brought out at a death-

penalty hearing is certain or even likely to help the defen-

30 No. 01-3480

dant to save his life.”); Brewer, 935 F.2d at 860-61 (Easter-

brook, J., concurring) (noting that “[t]rying to persuade

the jury that the accused is mentally ill is worse than

no defense at all.”). Judge Neville, after considering mit-

igating evidence similar to that which St. Pierre now

proffers and the brutality and nature of the crimes, con-

cluded the death penalty was the appropriate sentence.

Counsel for St. Pierre wanted to put on a defense at trial,

and even sought to withdraw the guilty plea. It was St.

Pierre who made the decision to plead guilty to the charges.

Several psychologists, the judge, and counsel all agreed

that he was competent to do so. Based on all the available

evidence at the time of the plea and the Strickland stan-

dard, it is impossible to say that counsel’s performance

was deficient. In fact, counsel’s overall performance at the

pleading stage, considering his client’s attitude and intent,

was commendable. See Balfour v. Haws, 892 F.2d 556, 562-

63 (7th Cir. 1989) (noting that for specific allegations

of ineffective assistance courts must “weigh the over-

all quality of representation provided to the defendant”

and not individual shortcomings). The district court’s con-

clusion, finding counsel’s performance did not fall below

objective standards of reasonableness, was correct.

C. Knowing and Voluntary Guilty Plea

St. Pierre’s argument that his plea was not knowing

or voluntary directly relates to the prior discussion of

counsel’s performance because St. Pierre argues that

counsel failed to advise and provide him with information

making his plea involuntary. See Hill, 474 U.S. at 56-59

(applying the Strickland analysis when a defendant chal-

lenges the voluntariness of a plea based on inadequate ad-

vice of counsel); McMann v. Richardson, 397 U.S. 759, 770-

72 (1970) (holding counsel’s advice regarding evidence

and potential success at trial versus a guilty plea is judged

No. 01-3480 31

“not on whether a court would retrospectively consider

counsel’s advice to be right or wrong, but on whether that

advice was within the range of competence demanded of

attorneys in criminal cases.”). However, St. Pierre’s bur-

den is even more onerous in this analysis for four reasons.

First, counsel advised St. Pierre not to plead guilty and

urged St. Pierre to go to trial. Second, counsel told St.

Pierre about two possible defenses, one being insanity and

the other being the admissibility of St. Pierre’s statements.

Third, St. Pierre was found competent to plead and clearly

actively participated in the proceedings. Finally, we deal

with a guilty plea by a defendant who is, without a doubt,

guilty of the crime; and “the concern that unfair procedures

may have resulted in the conviction of an innocent defen-

dant is only rarely raised by a petition to set aside a guilty

plea.” Hill, 474 U.S. at 58 (internal quotations and cita-

tions omitted).

A guilty plea is properly accepted if it is made voluntarily

and intelligently. E.g., Boykin v. Alabama, 395 U.S. 238,

242-44 (1969). Voluntariness is determined by “considering

all of the relevant circumstances surrounding” the guilty

plea. Brady v. United States, 397 U.S. 742, 749 (1970). Dur-

ing the process of accepting the plea the defendant must

be made aware of the consequences of a guilty plea, how-

ever, he need not be made aware of every possible conse-

quence. See Boykin, 395 U.S. at 242-44; Brady, 397 U.S. at

748; United States v. Jordan, 870 F.2d 1310, 1316 (7th Cir.

1989); United States v. Lumpkins, 845 F.2d 1444, 1450

(7th Cir. 1988); United States ex rel. Salisbury v. Blackburn,

792 F.2d 498, 499-501 (5th Cir. 1986).

St. Pierre does not argue that the judge improperly ad-

vised him of all the consequences of his guilty plea. St.

Pierre cannot and does not challenge his competency

to enter the plea because Judge Neville held a hearing

on the issue of competence before accepting the guilty plea

and the state judge’s finding of competency is entitled to

32 No. 01-3480

deference.26 See Montgomery, 956 F.2d at 680 (holding

the state court’s finding of competency is a factual one

which we presume correct); Balfour, 892 F.2d at 560; cf. 725

ILCS 5/104-10 (providing the statutory presumption of

fitness of a defendant to stand trial, plead, or be sentenced).

See also Gosier v. Welborn, 175 F.3d 504, 507 (7th Cir. 1999)

(noting involuntariness of a plea is often a derivative argu-

ment of competency).

Rather, St. Pierre asserts that his plea was neither know-

ing nor voluntary because he did not have the eight rec-

ords from his childhood—later uncovered by private ha-

beas counsel—and he did not know of the availability of an

insanity plea. However, lawyers need not inform their

clients of every possible defense, argument, or tactic, es-

pecially one not suggested by any evidence at the time.

Evans, 742 F.2d at 374-75. Moreover, “ ‘[i]t is well settled

that a voluntary and intelligent plea of guilty made by an

26

The fact remains that more than twenty years ago in 1980,

1981, 1982, and 1983, St. Pierre was found competent after ex-

amination by numerous licensed psychiatrists. There are three

reports appended to the PSR, two others from the first trial, and

four more submitted or discussed in the second trial. Out of all

those reports only one, that of the unlicenced prison psychologist

Monte Williams, concluded St. Pierre had any serious psychiatric

disorders. Thirteen years later, in 1995, four more reports were

submitted. Two defense psychiatrists found a serious psychiatric

disorder which would impair St. Pierre’s ability to cooperate with

counsel, but one of the defense psychiatrists disagreed with that

assessment, and another psychiatrist found him competent. There

is little doubt that after St. Pierre has spent all this time in pris-

on, his mental state could have significantly deteriorated. How-

ever, it is temporally and logically difficult to argue with the mul-

tiple psychiatric reports which found St. Pierre competent nearly

twenty years ago. In addition, if evidence of St. Pierre’s current

abilities is important we should note that St. Pierre has submit-

ted, pro se, remarkably well written and reasoned documents

during the federal proceedings.

No. 01-3480 33

accused person, who has been advised by competent coun-

sel, may not be collaterally attacked.’ ” Bousley v. United

States, 523 U.S. 614, 621 (1998) (quoting Mabry v. Johnson,

467 U.S. 504, 508 (1984)).

The facts most indicative of a knowing and voluntary

plea are directly drawn from St. Pierre’s own participation

in the proceedings. Both Judge Neville and counsel stated

that St. Pierre knew what he was doing and had meaning-

fully participated in the proceedings and his defense. St.

Pierre staunchly contested a minor issue of fact, related

to the robbery count and Sybil Gibons’s ring, until it was

resolved to his satisfaction. Following a comprehensive

hearing, Judge Neville concluded that St. Pierre knew his

rights and made the voluntary decision to plead guilty.

And when counsel filed a motion to withdraw the plea, St.

Pierre interrupted to make it clear that the motion was

being made by counsel and against his wishes.

St. Pierre was advised not to plead guilty, and about

the possibility of using insanity as a defense. He flatly

rejected the option of going to trial, and according to Judge

Neville he did so knowingly and voluntarily. St. Pierre was

found competent, and as the judge noted, appeared to

meaningfully participate in his defense. Additionally, coun-

sel noted that St. Pierre understood the charges and clear-

ly wanted to plead guilty. Today St. Pierre says he

wouldn’t have pled guilty. However, hindsight is express-

ly prohibited in our analysis. See Hill, 474 U.S. at 56-59;

Strickland, 466 U.S. at 688-91. All the facts show that

he understood the decision he was making and volun-

tarily made it because he wanted to accept responsibility

for his crimes. There is no evidence indicating that the

plea was not knowing and voluntary.

CONCLUSION

After previously being found guilty of two murders by

a jury, Robert St. Pierre decided to forgo another trial

34 No. 01-3480

and accepted responsibility and willingly pled guilty, know-

ing that death was a possible sentence. The facts are re-

plete with examples where St. Pierre wished to do some-

thing (plead guilty or waive an appeal) and judges and

attorneys, using all the persuasive ability they could

muster, attempted to change St. Pierre’s mind, creating

the appearance of inconsistency. Despite this advice and

pressure, St. Pierre consistently wanted to plead guilty,

accept responsibility, and accept his sentence, knowing

the consequences. The fact that he chose to accept respon-

sibility might seem to some to be unusual, but it does not

automatically make him incompetent, unable to cooper-

ate with counsel, or his counsel ineffective for failing to

persuade him to go to trial. The denial of the petition for

writ of habeas corpus is therefore, AFFIRMED.

DIANE P. WOOD, Circuit Judge, dissenting. The major-

ity’s opinion affirming the district court’s Solomonic deci-

sion to deny Robert St. Pierre’s petition for a writ of ha-

beas corpus, insofar as it related to his conviction (and to

grant the petition insofar as it related to his death sen-

tence) does the best that can be done with the facts sur-

rounding the quality of the legal assistance St. Pierre

received from his attorney throughout the proceedings. Un-

fortunately, in my opinion it is not enough to warrant the

affirmance of the denial of the petition with respect to

St. Pierre’s guilty plea. As has been the case throughout

the legal proceedings in St. Pierre’s case, see, e.g., St. Pierre

v. Cowan, 217 F.3d 939 (7th Cir. 2000), St. Pierre’s mental

illness—its nature, its severity, its effect on his crime, its

No. 01-3480 35

effect on his ability to assist in his own defense, and its

impact on his sentence—is a central problem. In a case

where mental illness is or may be present, we must set

aside our normal assumptions about human behavior

and rationality of decisionmaking, and instead consider

what occurred in light of the effects of any illness on the

defendant’s actions. When one does so in St. Pierre’s case,

I believe we are left with no choice but to grant the petition

in its entirety.

I

Although the majority has given a full account of the

facts of St. Pierre’s crime, it has omitted certain informa-

tion about the course of proceedings in the state courts

that I find highly pertinent. We begin, however, on common

ground: shortly after the two murders were committed, the

police arrested St. Pierre, and he was charged with two

counts of conspiracy to commit murder, two counts of armed

robbery, and two counts of concealing a homicidal death. He

went to trial before a jury on these charges, upon the con-

clusion of which the jury found him guilty and sentenced

him to death. The Illinois Supreme Court reversed that

conviction and remanded the case for a new trial, on the

ground that inculpatory statements St. Pierre made at

the Skokie (Illinois) police station following his arrest

were improperly admitted into evidence after St. Pierre had

invoked his right to counsel.

The majority has also recounted most of the pertinent

details about St. Pierre’s retrial, which took place in

1988 before Circuit Judge Richard Neville, but it is here

that I believe additional information helps to throw

light on the problem before us. Judge Neville appointed

Robert Barasa to represent St. Pierre. The majority char-

acterizes Barasa as a “seasoned” trial attorney and former

Cook County Public Defender, but neglects to mention

36 No. 01-3480

that, no matter how seasoned an attorney Barasa was for

ordinary criminal cases, he had never before had pri-

mary responsibility for a capital case. It is telling in that

regard that the Report of the Governor’s Commission on

Capital Punishment, April 2002,1 includes among its

recommendations several pertaining to the qualifications

for counsel in capital cases, including an endorsement of

new rules from the Illinois Supreme Court that creates

a specialized Capital Litigation Trial Bar (membership

in which requires prior experience as lead or co-counsel

in at least two murder prosecutions) and further re-

quires that lead counsel in all capital cases be a member

of that bar. See Ill. S.Ct. Rules 416(d), 714(b). My point

here is certainly not that these rules are retroactive; it

is only that thoughtful people throughout the State of

Illinois, including the members of the state Supreme Court

and the members of the Governor’s Commission, have rec-

ognized the importance of prior experience for defense

counsel in capital cases. Someone like Barasa who lacks

such experience is thus a novice to the capital area, no

matter how much he has done elsewhere.

Very shortly after these new proceedings began, to every-

one’s astonishment, St. Pierre announced that he in-

tended to enter a blind plea of guilty to all charges. With

commendable caution, Judge Neville decided that this

rather bizarre decision (especially considering the fact

that St. Pierre’s inculpatory statements could no longer

be used) warranted a competency hearing. Judge Neville

found further reason for a hearing when he learned from

Barasa that St. Pierre’s motivation for his planned guilty

plea lay in his abhorrence of the conditions at Cook County

1

This report has received wide national attention and has

been disseminated throughout the country. It is available electroni-

cally at http://www.idoc.state.il.us/ccp/ccp/reports/commission_

reports.html.

No. 01-3480 37

jail and his desire to return to the state prison. In connec-

tion with the competency proceedings, the court ordered

that St. Pierre be examined by Dr. Albert Stipes, a staff

psychiatrist at the Cook County Psychiatric Institute;

Dr. Stipes was to look into St. Pierre’s fitness to plead

guilty, to be tried, and to be sentenced. As the court put it,

he wanted to be sure that “Mr. St. Pierre [was] hitting on

all eight” when he entered his blind plea. That same day,

August 8, 1988, Dr. Stipes conducted a one-hour inter-

view of St. Pierre and reviewed the records of a psychi-

atric examination from March 1981, in which St. Pierre’s

mental fitness had been assessed for purposes of a theft

charge. Nothing else was brought to Dr. Stipes’s atten-

tion, although records documenting St. Pierre’s mental

health existed dating back as far as St. Pierre’s childhood.

(The majority speculates that Dr. Stipes may have seen

these particular “old” records, ante at 7 n.8, but there

is nothing at all in the record to support this conjecture.)

Dr. Stipes concluded that St. Pierre was fit for plead-

ing, trial, and sentencing, yet at the same time he acknowl-

edged that St. Pierre was pleading guilty to escape the

intolerable conditions at Cook County jail.

Upon hearing Dr. Stipes’s opinion, Barasa did nothing

to discredit the ultimate finding of fitness. He did not

mention to the court, for example, that he knew that St.

Pierre had attempted suicide in the Cook County jail, nor

did he otherwise alert the court to the fact that there

were serious questions about St. Pierre’s mental and

emotional health. Furthermore, even though Dr. Stipes’s

opinion was unfavorable to his client, Barasa did not seek

permission to have another mental health professional

evaluate St. Pierre. All he did was highlight St. Pierre’s

desire to leave the Cook County jail, but he failed to link

this desire to any mental illness. After hearing all this,

Judge Neville pointed out that his only reason for ordering

the examination was the oddness of St. Pierre’s sudden

38 No. 01-3480

desire to plead guilty. The judge ruled that St. Pierre

was indeed competent to proceed.

Even then, however, Judge Neville’s concern is appar-

ent in the record. He decided to engage in a colloquy with

St. Pierre himself, to ensure that the plea was not moti-

vated solely by the jail problem. The judge reminded St.

Pierre of his right to a trial before a jury or the court

and stated that he would not accept a guilty plea if St.

Pierre had not in fact committed the crimes with which

he was charged. St. Pierre then acknowledged that he

was pleading guilty against the advice of his lawyer, but

he said that as long as he was at Cook County jail it was

not worth fighting the case. At that point, the following

statements were made:

Barasa: [I]t is the defendant’s wish to plead guilty

because of his inability to deal with his in-

carceration at County Jail where he is right

now, and that if he could be transferred to a

location within County Jail, anywhere where

he could be away from some of the, appar-

ently he’s told me that there’s gangs, there’s

homosexuality, there’s drugs, there’s weap-

ons, and that these factors upset him so much

that he cannot, to him it is not worth it to

fight this case . . . .

St. Pierre: [I]f it were possible that I could spend my

time, okay, during the proceedings of this

case in the penitentiary, maximum security

penitentiary, and I would be more than will-

ing, okay, to assist my attorney, okay?

The trial court rejected these requests and told St. Pierre

that his only option was Cook County jail; at the same

time, the judge again reiterated that he would not accept a

plea of guilty unless St. Pierre was really admitting he

was guilty of the crimes.

No. 01-3480 39

During these discussions, it is at best disputed wheth-

er anyone told St. Pierre that one of the rights he would

be giving up if he pleaded guilty was the right to raise

an insanity defense, and that if he raised that defense, the

state would have the burden of proving his sanity beyond

a reasonable doubt. In his deposition, Barasa claims that

he did so, but nothing on the record reveals this. In the

end, however, this is not an important dispute. If St.

Pierre is really mentally ill, it is hard to say how valuable

such advice would have been in any event—how reliable

are the decisions of someone who is operating within a

delusional system? If St. Pierre is not really mentally ill,

then the analysis suggested by the majority might be

applicable. But the key question is the way Barasa was

handling the issue of mental illness, not the way St. Pierre

might have been responding to questions posed to him.

As the majority notes, in the end the court accepted the

blind plea, and St. Pierre waived his right to a sentencing

jury.

The very next day, August 9, 1988, Barasa filed a mo-

tion on St. Pierre’s behalf seeking to withdraw the guilty

plea. The stated grounds related, not surprisingly, to St.

Pierre’s motivation for the plea: it argued that his only

reason for pleading was to obtain release from Cook Coun-

ty jail. St. Pierre himself indicated to the court that he

did not agree with Barasa’s motion and that he did not

want to withdraw the plea, because withdrawal would

mean more time in Cook County jail. The court denied

Barasa’s motion because of St. Pierre’s opposition to it. The

state then presented evidence in aggravation without any

objection from Barasa. That evidence included his prior

theft convictions, an attempt to escape confinement in

1983, and the grisly manner in which the Gibons murders

were carried out. The court was then prepared to sched-

ule a date for St. Pierre to present mitigating evidence.

Initially, St. Pierre objected, but he ultimately agreed upon

40 No. 01-3480

a hearing date within three weeks (later extended slightly

to September 12).

At the September 12 mitigation hearing, Barasa filed

a motion to have St. Pierre examined to determine his

sanity at the time of the crime; he explained to the court

that his motion was based in part on a discussion he

had with Monte Williams, an employee of the Illinois

Department of Corrections who held a master’s degree in

psychology but was not a licensed psychologist. Barasa had

Williams with him to serve as a witness on the question of

St. Pierre’s sanity. Despite the majority’s effort to portray

Williams as a credible witness, it is clear that he was not.

Judge Neville, on the record, branded Williams’s testimony

as “ridiculous,” noting that Williams did not seem to un-

derstand the legal standard for insanity:

[W]hen he was asked what the issues of insanity

were . . . he said that it had to do with whether the

defendant was a danger to himself and whether he

was a danger to society. That, of course, is a self-com-

mitment issue, which is what [Williams] says he’s been

doing for years, and what he’s most familiar with, and

has nothing to do with the issues before me in this

courtroom.

This was no surprise to anyone who had been listening

to Williams’s description of his own credentials. When

asked what he did, Williams claimed that he specialized

in “forensic psychology and the area where psychology

comes together with anthropology and archaeology.” (One

wonders how he managed to combine these three rather

different disciplines; perhaps he assessed sanity by using

ancient Native American artifacts in some kind of trib-

al ceremony, while he observed the patient’s affective re-

sponse.) Before the St. Pierre proceeding, Williams had

never before testified on the issue of sanity at the time of

a criminal offense. Moreover, he did not try to compen-

No. 01-3480 41

sate for his lack of background by unusual preparation

for the hearing.2 To the contrary, he did not bring St.

Pierre’s file to the court and he had never formally exam-

ined St. Pierre. Instead, according to him, he had chatted

with St. Pierre from time to time while St. Pierre was in-

carcerated at Illinois’s Menard prison, discussing common

interests such as Egyptology! Tellingly, Barasa had also

made no effort to procure the file.

As already noted, Judge Neville was unimpressed

with Williams’s contribution. The judge told Barasa that it

was the obligation of the defense to raise the issue of in-

sanity with enough evidence to convince the court that

there was something substantial to address. Even so, the

judge was willing to listen to Williams insofar as his tes-

timony might bear on mitigation. Williams opined that

St. Pierre was not responsible for his actions based on

vague psychological problems and an unhappy background.

Finally, and rather remarkably, Williams concluded his

testimony by analogizing St. Pierre’s mental condition to

the mental condition of the “entire nation of Germany”

prior to the rise of Adolph Hitler, who was a person (ac-

cording to Williams) “who most people think was in-

sane, and whom we know wasn’t.” At one point in this

unsatisfactory proceeding, Barasa openly admitted to the

court that he was not prepared for the hearing and that

he had not realized how severe the burden was for some-

2

The majority has made a Herculean effort to rehabilitate Wil-

liams and to paint him in a credible light, ante at 10-11 n.12, but

the facts speak for themselves. Specifically, it remains true that

Williams was not a licensed psychologist, that he had never

conducted a professional examination of St. Pierre, and that he

had never before testified on the issue of a defendant’s sanity, as

opposed to the question whether a person should be committed.

It is hard in light of all that to question Judge Neville’s evalua-

tion of Williams’s contribution.

42 No. 01-3480

one introducing a defense based upon sanity. Judge

Neville appropriately chastised Barasa for being woeful-

ly unprepared. In the end, as the majority has noted, the

court denied Barasa’s motion to determine St. Pierre’s san-

ity at the time of the offense.

That left very little in the way of mitigation evidence.

Barasa introduced a transcript from St. Pierre’s half

brother, and testimony from Father John Smyth of the

Maryville Academy, where St. Pierre had spent a signifi-

cant part of his childhood. Father Smyth testified about

some of St. Pierre’s school and family experiences. The

court also admitted by stipulation a report filed in 1983

by the Associated Mental Health group on St. Pierre’s

fitness to stand trial. Last, St. Pierre took the stand to

describe his background, including his father’s alcohol-

ism, his mother’s inability to set boundaries, and his ulti-

mate shipment to a group home. The court found that none

of the mitigating factors sufficed to lessen St. Pierre’s

culpability; it also explicitly found that “there has been

no testimony that St. Pierre ever suffered from mental

disease or defect”; and it sentenced him to death.

In February 1989, in post-trial proceedings, the court

agreed to revisit the issue of St. Pierre’s sanity. St. Pierre

agreed to be re-examined by Dr. Stipes, who once again

reviewed the same records he had looked at earlier, to

which he added the Williams testimony. Once again, even

after the passage of this much time, Barasa had never

conducted a background investigation, he never subpoenaed

records from institutions like Maryville, nor had he tried

to have St. Pierre examined by another qualified expert.

On direct review, the Illinois Supreme Court affirmed St.

Pierre’s conviction and death sentence, and the U.S. Su-

preme Court denied certiorari. Now represented by new

counsel, St. Pierre began state post-conviction proceed-

ings. These proceedings were disrupted, as we explained

No. 01-3480 43

in detail in St. Pierre v. Cowan, supra, by St. Pierre’s

inability to decide whether or not he wished to pursue

them or to waive all further review. Eventually, the Illi-

nois Supreme Court ordered the circuit court of Cook

County to conduct a hearing on St. Pierre’s competence

to waive further appeals. Only then did his psychological

record begin to come into focus. New counsel introduced

school records that identified St. Pierre as hyperactive,

noted his destructive behavior, and described his “negative”

home environment. In this context, “negative” was if any-

thing a euphemism: one of the records stated that St.

Pierre’s father encouraged St. Pierre to kill his mother.

Early psychological testing at Maryville indicated that St.

Pierre had uncontrolled destructive behavior, that he

suffered from depression, anxiety, and that he had a “phobic

nature.” Most importantly, counsel introduced testimony

of several psychologists who all diagnosed him as af-

flicted with bipolar disorder.3 Dr. Louis Hemmerich, Ph.D.,

a licensed clinical psychologist affiliated with Great

Lakes Psychological Services, was of this opinion; Dr. Hem-

3

The National Institute of Mental Health gives the following

definition of bipolar disorder: “Bipolar disorder, also known as

manic-depressive illness, is a brain disorder that causes unusual

shifts in a person’s mood, energy, and ability to function. Different

from the normal ups and downs that everyone goes through, the

symptoms of bipolar disorder are severe. They can result in

damaged relationships, poor job or school performance, and even

suicide. . . . Bipolar disorder typically develops in late adolescence

or early adulthood. However, some people have their first symp-

toms during childhood, and some develop them late in life. It is

often not recognized as an illness, and people may suffer for years

before it is properly diagnosed and treated. Like diabetes or

heart disease, bipolar disorder is a long-term illness that must be

carefully managed throughout a person’s life.” National Institute

of Health Publication No. 01-3679 (updated Mar. 7, 2002), at

http://www.nimh.nih.gov/publicat/bipolar.cfm.

44 No. 01-3480

merich also determined that St. Pierre “may not have

been fully able to conform his conduct to the requirement

of the law at the time of the commission of the crimes

with which he had been charged.” Dr. Henry Lahmeyer

(professor of psychiatry at Northwestern University), Dr.

Henry Conroe (board-certified forensic psychiatrist), and

Dr. Jonathan Kelly, also all concluded that St. Pierre

had bipolar disorder. Unlike Dr. Stipes, or even the “rid-

iculous” Williams, these doctors all had access to the full

record of St. Pierre’s history, including the documents from

his time at Maryville. Dr. Stipes testified again that he

thought St. Pierre was capable of waiving his right to

further legal proceedings, but on cross-examination he ad-

mitted that he had never, at any time over the years, looked

into the question whether St. Pierre had bipolar disorder.

St. Pierre’s new counsel, who continue to represent him

before this court, made it clear that they had been able

to obtain the important background information about

St. Pierre from “garden-variety” subpoenas issued to the

schools and institutions at which St. Pierre had spent time.

Because of the confusion over the question whether

St. Pierre was waiving post-conviction remedies, Judge

Neville never ruled on the post-conviction petition.4 After

our remand, however, the district court reviewed the claims

that St. Pierre had not procedurally defaulted. It granted

his petition only with respect to Claim VI, which was the

one in which St. Pierre claimed that he was denied his

Sixth Amendment right to effective assistance of counsel

during his capital sentencing proceeding. Claim VII had

dropped out of the case after we affirmed the district court’s

4

That means, despite the fact that St. Pierre’s mental health

had received consideration in the earlier state court proceedings,

that it was never evaluated in the light of the full record we now

have before us.

No. 01-3480 45

earlier dismissal of that claim. The other claim on which I

wish to focus at this point is Claim IV, which argued that

St. Pierre was also denied his right to effective assistance

of counsel at the guilty plea stage.

II

St. Pierre’s original petition for a writ of habeas corpus

was filed prior to the passage of the Antiterrorism and

Effective Death Penalty Act (‘AEDPA’), and thus this appeal

is governed by the standards applied prior to AEDPA’s

enactment. St. Pierre v. Cowan, 217 F.3d at 940. Although,

as the majority emphasizes, our review of facts found by

the state courts is deferential, we review issues of law

de novo, including the critical questions whether he re-

ceived ineffective assistance of counsel during his guilty

plea proceedings and the adequacy of that plea. Cabello

v. United States, 188 F.3d 871 (7th Cir. 1999). Here, of

course, the state court never had the chance to make any

findings of fact on the underlying issue of St. Pierre’s men-

tal illness because of the way Barasa was handling the

proceedings. In any event, it is the Sixth Amendment issue

(as applied to the states through the Fourteenth Amend-

ment) that is properly before us. That question, as the

majority notes, is governed by the Supreme Court’s decision

in Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, St. Pierre has the burden of show-

ing both that his counsel’s performance fell below the

minimum level that the Constitution tolerates and that he

was prejudiced by the inadequate performance. In the

context of a guilty plea, this means that he must prove

that the assistance he received leading up to the plea fell

below the constitutional minimum and that he would not

have entered the plea had he been adequately represented.

See Hill v. Lockhart, 474 U.S. 52, 56 (1985). The major-

ity finds St. Pierre’s case insufficient, largely because it

46 No. 01-3480

has assumed that St. Pierre was in fact competent to

participate actively in the court proceedings that led to his

guilty plea. It finds significant the fact that St. Pierre

himself never mentioned his mental health problems. But

there is a troubling circularity to this logic: a mentally ill

person may not have the capacity to self-diagnose a problem

of mental illness; he may be operating within a delusional

system; he may believe himself to be some kind of super-

man; and so on. No one would expect a blind person to give

a vivid description of a painting she is near, nor would one

expect a person with a severe hearing impairment to dis-

cuss knowledgeably the performance on a particular even-

ing of the cello section of the Chicago Symphony Orchestra.

Everything St. Pierre did and said in the trial proceed-

ings leading up to, and following, his guilty plea, is suspect

because of the compelling evidence of mental illness that

post-conviction counsel have uncovered. What we must

consider is whether Barasa’s failure to find the same

information amounted to inadequate performance, and

then, if so, whether that inadequate performance prejudiced

St. Pierre.

St. Pierre’s current lawyers point to Barasa’s failure

to conduct even a rudimentary background investigation

of his client as one of his primary errors. As the Fifth

Circuit put it in a case decided under the pre-AEDPA

standards, “[w]here counsel (1) makes some exploration

of the insanity defense but fails to take an obvious and

readily available investigatory step which would have made

the defense viable, (2) does not produce reasonable tactical

reasons for not pursuing further investigation, and (3)

raises no other plausible defense, courts may find ineffec-

tive assistance of counsel.” Profitt v. Waldron, 831 F.2d

1245, 1248 (5th Cir. 1987). (This court later observed that

Profitt’s conclusion, as something developed under pre-

AEDPA standards, did not apply in the post-AEDPA con-

text, because the Supreme Court has never had occasion to

No. 01-3480 47

consider this issue. See Long v. Krenke, 138 F.3d 1160, 1164

(7th Cir. 1998). As St. Pierre’s case is governed by pre-

AEDPA law, however, the constraint that the Long court

found does not apply here.)

In my opinion, the record overwhelmingly shows that

Barasa’s performance was constitutionally insufficient dur-

ing the course of the proceedings that led to St. Pierre’s

guilty plea, as well as in the proceedings before the trial

court after the guilty plea. He admitted at the first sanity

hearing that he was unprepared and unaware of what it

took to put into play a serious sanity defense. By the time

of the second hearing, which Judge Neville conscientiously

offered, Barasa was still grossly unprepared. He had not

issued so much as a single subpoena to find out what St.

Pierre’s mental health history really was. He chose to rely

on the “ridiculous” Williams as his only witness—and

we have no reason to second-guess Judge Neville’s impres-

sion of Williams’s testimony. The utter failure to look into

pertinent information cannot be accepted as a strategic

choice. The Supreme Court noted in Strickland itself

that “strategic choices made after less than complete in-

vestigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations

on investigation.” 466 U.S. at 691. Here, the issue of St.

Pierre’s mental functioning had been called into question

by the trial court judge himself; it is hard to imagine a

better clue to defense counsel that this is a topic he too

ought to exert at least some effort to explore.

The state argues that Barasa’s actions fell within the

range of acceptable professional competence because St.

Pierre was so eager to plead guilty. But, once again, that

argument suffers from the fallacy of assuming the answer

to the very question presented: could St. Pierre make

such an important decision? Just because a child is eager to

cross the street when a traffic light is still red does not

mean that a parent relents and gives her permission for

48 No. 01-3480

the child to step out into on-coming traffic. If a mentally

ill person persistently asked for a rope in his cell, the cus-

todian obviously would not furnish one. It was up to

Barasa, St. Pierre’s representative, to make some in-

quiry into his mental health and the potential for either

defenses or mitigation arguments based on that health,

without uncritical deference to St. Pierre’s demands. Al-

though the majority insists there was no evidence that

St. Pierre had a mental disorder,5 as our earlier opinion

made clear, St. Pierre was displaying precisely the kind of

erratic, irrational behavior that accompanies bipolar dis-

order.6 If what the state really means to argue is that there

5

It is unclear to me why the majority believes that it has the

expertise to make a definitive conclusion (a) about St. Pierre’s

mental health, and (b) about the effect it may have had on his

proceedings (two issues that I certainly recognize to be distin-

guishable). We are not expert psychiatrists or psychologists; all

we can do is to ensure that the proceedings that led to a result

are worthy of confidence. Here, I cannot say that they were, be-

cause of the ineffective assistance of counsel St. Pierre received.

As this dissent explains, I believe that the case should be retried

with proper assistance of counsel, through which the trier of fact

would have full information from qualified experts about St.

Pierre’s mental condition and its consequences for the crime and

the proceedings. Once the experts have made such a judgment,

I would be happy to abide by whatever conclusion they reached.

6

The NIMH pamphlet on bipolar disorder lists the following

signs or symptoms of mania, or a manic episode:

• Increased energy, activity, and restlessness

• Excessively “high,” overly good, euphoric mood

• Extreme irritability

• Racing thoughts and talking very fast, jumping from one

idea to another

(continued...)

No. 01-3480 49

was nothing about St. Pierre to tip Barasa off to the fact

that there might be a problem, the record convincingly

refutes such a position.

Barasa knew that St. Pierre had won his first appeal and

had succeeded in obtaining an order from the Illinois Su-

preme Court requiring suppression of his jailhouse confes-

sion; he knew that St. Pierre was willing to be sentenced

to death rather than to await trial in the Cook County

jail; he knew that St. Pierre had attempted suicide; and he

knew that the trial judge felt that St. Pierre’s decisions

were troubling enough that someone needed to make sure

he was “hitting on all eight.” If one wanted to take Williams

into account (which I think is unnecessary), Barasa also

knew that Williams thought St. Pierre was mentally ill.

This is ample knowledge on his part to take routine investi-

6

(...continued)

• Distractibility, can’t concentrate well

• Little sleep needed

• Unrealistic beliefs in one’s abilities and powers

• Poor judgment

• Spending sprees

• A lasting period of behavior that is different from usual

• Increased sexual drive

• Abuse of drugs, particularly cocaine, alcohol, and sleep-

ing medications

• Provocative, intrusive, or aggressive behavior

• Denial that anything is wrong

NIMH report, supra note 2, page 2. The report goes on to note

that delusions can accompany severe episodes of mania or depres-

sion. Id.

50 No. 01-3480

gatory steps such as gathering together readily available

records and seeking permission to have his own expert

psychiatrist, with full access to St. Pierre’s mental health

history, conduct a thorough examination of St. Pierre.

Barasa’s failure to do so constituted ineffective perfor-

mance, in my opinion.

Before a writ can be granted on the basis of a Sixth

Amendment violation, it is of course also necessary to

consider the question of prejudice. In my opinion, St. Pierre

has also demonstrated this. First, had his bipolar dis-

order come to light before Judge Neville (whose own deci-

sions were certainly hampered by Barasa’s failure to

develop the record properly), it is possible Judge Neville

might have appointed a guardian to act for St. Pierre,

rather than permitting him to make his own decisions. Such

a guardian might have thought St. Pierre ought to have

a full trial, rather than pleading guilty. Even if St. Pierre

had remained in charge and had pleaded guilty, it is also

quite likely that the evidence of the bipolar disorder that

was eventually developed (and never considered by the

state trial court because of the procedural mix-ups that

have plagued this case) would have influenced the court’s

decision on the penalty phase. These cases are fact-spec-

ific, and for that reason I am not persuaded that the Eighth

Circuit’s decision in Antwine v. Delo, 54 F.3d 1357 (8th Cir.

1995), based on a situation with many similarities to St.

Pierre’s, is dispositive on the prejudice question. The (prob-

able) severity of each man’s disorder, the knowledge coun-

sel had of the probable existence of mental abnormalities,

the effect the disorder may have had on the commission of

the offense, the effect it was having on the defendant’s

ability to assist in his own defense, and many other fac-

tors are different in the two cases. In any event, Antwine

had insisted that he was interested only in the kind of

defense that would produce an acquittal, whereas St. Pierre

might also have benefitted at the penalty phase.

No. 01-3480 51

To the extent that we should listen to St. Pierre, it is

also notable that St. Pierre never rejected Barasa’s efforts

to argue that he was insane at the time of the offense.

Twice Barasa tried to make this argument, and St. Pierre

raised no objection at either point. He even permitted a

second evaluation by Dr. Stipes after Barasa filed the post-

trial motion. This too suggests that it was not St. Pierre

who was preventing the competent exploration of this topic;

it was Barasa.

The district court in St. Pierre’s federal habeas corpus

proceedings also concluded that Barasa’s failures were

irrelevant because “under Illinois law, St. Pierre’s sanity

at the time of the crime was not an essential element of

the crime.” While correct as far as it goes—sanity at the

time was an affirmative defense, as codified by Section 6-

2(a) of the Criminal Code of 1961—the ultimate conclusion

of no prejudice is mistaken. In 1982, when St. Pierre com-

mitted this crime, the law pertaining to insanity defenses

was as follows: the defendant had the initial burden of

introducing evidence on the question of sanity; if he did so,

the defendant was no longer presumed to be sane, and

the state had the burden of proving sanity beyond a reason-

able doubt. See People v. Hollins, 482 N.E.2d 1053, 1055

(Ill. 1985). Although by 1988 Illinois had changed that

rule, and now imposes the burden on the defendant to

prove by a preponderance of the evidence that she was

not guilty by reason of insanity, see Pub. Act 83-288,

Ill.Rev.Stat. 1983, ch. 38, par. 6-2(e); People v. Hickman,

492 N.E.2d 1041 (Ill. 1986), St. Pierre was plainly entitled

to have the 1982 version of the law applied to his case.

As the Illinois courts themselves have recognized, to do

otherwise would amount to an ex post facto application

of the new statute. People v. Ramsey, 735 N.E.2d 533, 535

(Ill. 2000). In the end, therefore, it does not matter whether

St. Pierre’s sanity was formally an “essential element” of

the case or an affirmative defense. What does matter is

52 No. 01-3480

the fact that the state would have borne the burden of

proving his sanity beyond a reasonable doubt, had Barasa

properly raised the defense. This in turn shows once again

that Barasa’s shortcomings were prejudicial to St. Pierre

at the guilt phase of his case.

Last, there is a problem in the state’s argument that

St. Pierre cannot show prejudice because (it predicts)

the insanity defense would not have prevailed at trial. If all

the jury had heard was the testimony of Dr. Stipes, who

never even looked to see whether St. Pierre had bi-

polar disorder, or worse yet, the testimony of both Dr.

Stipes and Williams, that may be correct. But that really

is another way of providing prejudice from Barasa’s fail-

ure to create a proper record, not a way of showing lack

of prejudice. If the trier of fact had seen everything

that post-conviction counsel have uncovered, there is a

reasonable probability that the result at trial would have

been different.

For all these reasons, I would reverse the district court’s

decision denying St. Pierre’s petition for a writ of ha-

beas corpus with respect to the guilt phase of his case, and

I would find that St. Pierre is entitled to a full new trial.

As the state has not contested the district court’s grant

of the writ with respect to the sentencing phase of the

proceedings, like the majority I make no separate comment

on that aside from the observation that all the shortcomings

I have documented provide firm support for the district

court’s ruling.

I respectfully dissent.

No. 01-3480 53

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—7-23-02