Nicole Harris v. Sheryl Thompson

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1088

N ICOLE H ARRIS,

Petitioner-Appellant,

v.

S HERYL T HOMPSON, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 CV 6257—James B. Zagel, Judge.

A RGUED JUNE 7, 2012—D ECIDED O CTOBER 18, 2012

Before M ANION, K ANNE, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. Illinois prisoner Nicole

Harris was convicted in an Illinois state court of

murdering her four-year-old son, Jaquari Dancy, and

was sentenced to 30 years in prison. It is undisputed

that Jaquari died from asphyxiation and that the instru-

ment of death was an elastic band that had come loose

from a fitted bed sheet. The parties also agree that

Jaquari was not alone when he died. His five-year-old

2 No. 12-1088

brother Diante was in the top bunk of the bed the two

shared. On the day of Jaquari’s death, Harris dis-

ciplined the boys for leaving the apartment while she

was across the street doing laundry. The State’s theory

was that Jaquari would not stop crying, and Harris grew

so mad that she strangled him with the elastic band

while Diante slept in the bunk above. The defense

theory was that Jaquari had wrapped the elastic around

his own neck and accidentally asphyxiated himself

while Harris was at the laundromat. At trial, by

far the most damning evidence against Harris was her

videotaped confession, recorded the day after Jaquari’s

death following 27 hours of intermittent interrogation at

a Chicago police station. In the tape, Harris admitted

to choking Jaquari with the elastic band because he

had misbehaved.

Harris’s best exculpatory evidence was the proffered

testimony of Diante, age six at trial, who has main-

tained since he was first interviewed the day after

Jaquari’s death that his brother wrapped the elastic

band around his own neck and that neither his mother

nor father was present when he did so. The jury never

heard Diante’s testimony, however, because the trial

court determined that Diante was not a competent wit-

ness. No one disputes that the trial judge made a

legal error in reaching this conclusion: he reversed

Illinois law’s presumption of competency by requiring

the defendant, as the proponent of the witness, to

prove that Diante was competent to testify. Illinois’s

competency statute places the burden of proof on

the party challenging competency — in this case, the

No. 12-1088 3

State — even when the witness is a child. See 725 ILCS

5/115-14(c).

In this collateral attack on her conviction, Harris con-

tends that the trial court’s exclusion of Diante’s testi-

mony violated her federal Sixth Amendment right to

present witnesses in her own defense, see Washington

v. Texas, 388 U.S. 14 (1967), and that she received

ineffective assistance of counsel at Diante’s competency

hearing. The original state trial court denied Harris’s

motion for a new trial on these and other grounds. The

Illinois Appellate Court rejected her direct appeal, and

the district court determined that federal habeas relief

was not available.

We reverse with instructions to grant the writ. A

court’s exclusion of defense evidence violates the Com-

pulsory Process Clause of the Sixth Amendment where

the evidence is material to the outcome of trial and the

application of the evidentiary exclusion is arbitrary or

disproportionate to the state’s legitimate interests pro-

moted by the rule. Although Diante and his testimony

posed challenges, the complete exclusion of this critical

exculpatory evidence in this case was arbitrary and

disproportionate to the truth-seeking and reliability

concerns advanced by witness competency restric-

tions. We review this issue de novo because it was not

addressed by the Illinois courts. The disqualification

of Diante as a witness violated Harris’s Sixth Amend-

ment right to present a complete defense.

We also conclude that trial counsel’s serious errors in

the competency hearing deprived Harris of the right to

4 No. 12-1088

effective counsel. As the only eyewitness to Jaquari’s

death, Diante’s testimony was essential to Harris’s de-

fense. His competency hearing was crucial, but

Harris’s counsel was not ready for it: he did not inter-

view Diante, he did not secure the presence of a

witness who would have shown that Diante’s recollec-

tions of what happened were consistent and credible,

and he did not correct the trial court’s misapplication

of the burden of proof. Under Strickland v. Washington,

466 U.S. 668 (1984), and its progeny, each of these

mistakes — lack of investigation, failure to secure a key

witness, and ignorance of applicable law — amounted

to constitutionally deficient performance of defense

counsel. If counsel had taken simple and obvious steps

to prepare for the hearing, it is reasonably likely that

Diante would have been deemed competent. And if

the jury had heard his testimony, there is a reasonable

probability that the outcome of the trial would have

been different. In concluding that Harris was not preju-

diced by her counsel’s errors at the competency

hearing, the state appellate court unreasonably ap-

plied Strickland.

I. Factual and Procedural Background

The underlying facts of this case are detailed in the

Illinois Appellate Court’s decision affirming Harris’s

conviction and sentence. People v. Harris, 904 N.E.2d 1077

(Ill. App. 2009). Those facts are entitled to a presump-

tion of accuracy, see 28 U.S.C. § 2254(e)(1), and they are

in any event uncontested insofar as they are relevant

to our decision.

No. 12-1088 5

A. Jaquari’s Death and the Initial Investigation

In May 2005, Harris, age 23, lived in an apartment on

Chicago’s west side with her boyfriend, Sta-Von Dancy,

and their two sons, five-year-old Diante and four-year-

old Jaquari. In the afternoon of Saturday, May 14, Harris

and Dancy went to the laundromat across the street,

leaving their sons home alone for approximately

40 minutes with instructions to stay in the apartment.

While the clothes were drying, Harris returned home

and discovered Diante in the hallway and Jaquari

playing outside. Harris yelled at the children and

ordered them to their bedroom, where Jaquari began

crying. At this point, Dancy returned to the apartment,

spoke to his children in their room, and lay down to

take a nap.

When he awakened, Dancy discovered Jaquari lying

on the floor of the boys’ bedroom, unresponsive and

blue in the face. An elastic band hanging from Diante’s

fitted sheet was wrapped repeatedly (close to ten times)

around Jaquari’s neck. Dancy unwrapped the band and

performed mouth-to-mouth resuscitation. Jaquari re-

mained unconscious. Dancy lifted him up and ran

outside, where he met Harris returning again from the

laundromat. The two jumped in their car and raced off

in search of a hospital with Harris driving and Dancy

continuing CPR on Jaquari in the back seat. They called

911 and eventually met an ambulance that took Jaquari

to a hospital. Harris and Dancy returned home to

retrieve Diante and then went to the hospital, where

Jaquari was pronounced dead.

6 No. 12-1088

Chicago police officers arrived at the hospital to begin

their investigation into Jaquari’s death. After a brief

conversation with detectives around 7:15 p.m., Harris

and Dancy agreed to accompany them to the police

station to answer further questions. Detectives inter-

viewed the parents in separate rooms. With Diante on

her lap, Harris answered questions for approximately

30 minutes before the detectives left to continue their

investigation at the scene. Around midnight, Diante

was taken to his grandmother’s home by an official with

the Department of Child and Family Services. Back at

the family’s apartment, officers ordered crime scene

technicians to collect the sheet with the loose elastic

band and a telephone cord they suspected might have

been used to strangle Jaquari. After speaking with other

tenants in the building, the detectives returned to the

station to confront Harris with discrepancies between

her earlier account and what they had learned from

her neighbors, who said she had struck her children

with a belt that day. According to the detectives, after

approximately fifteen minutes of questioning, Harris

broke down, started crying, and spontaneously ad-

mitted, “I wrapped the phone cord around Jaquari’s neck

and then I wrapped the elastic band from the bed sheet

around his neck to make it look like an accident.” Harris,

904 N.E.2d at 1080. That first confession was undis-

putedly false: the autopsy would later show that the

telephone cord played no role in Jaquari’s death.

The detectives read Harris her Miranda rights, which

she said she understood. Over the next 24 hours,

Harris recanted her initial unwarned confession, slept

No. 12-1088 7

overnight in a holding cell, took a polygraph examina-

tion (with inconclusive results), and confessed a second

time — this time saying she had used the elastic band,

which conformed to the physical evidence. A prosecutor

arrived and obtained a videotaped statement of Harris’s

confession. In it, Harris stated that she had struck

Jaquari with a belt when she came over from the laundro-

mat and that because he would not stop crying, she

wrapped the sheet’s elastic band around his neck until

she saw blood coming from his nose. She said she then

left the room, attempted to fix a phone jack, and returned

to the laundromat to retrieve her clothing. She was

charged with first-degree murder. Her trial began on

October 20, 2005 in Cook County Circuit Court.

B. The Trial

At trial, Harris’s videotaped confession provided the

State’s most powerful evidence against her.1 Several police

officers and prosecutors testified for the prosecution to

discuss the investigation and interrogation of Harris.

1

In pretrial proceedings, Harris filed a motion to suppress

the videotaped confession as involuntary. She has argued — to

the trial court, on direct appeal, in the district court, and in

this appeal — that the police used an improper two-step

“question first, warn later” interrogation procedure, rendering

both the initial unwarned confession and later confessions

inadmissible. See Missouri v. Seibert, 542 U.S. 600 (2004). Because

we grant Harris’s habeas petition on other grounds, we do

not consider here whether a Seibert violation occurred.

8 No. 12-1088

Dancy was called by both the State and the defense. He

testified that when he found Jaquari lying inert on the

floor, he saw a clear mucus bubble coming out of the

boy’s nose. Dancy said he had seen the elastic band

before, hanging from Diante’s sheet on the top bunk

down almost to the bottom bed. Dancy also testified

that, on previous occasions, Jaquari had played with the

elastic by wrapping it around his neck. According to

Dancy, Diante was in the room lying on his top bunk

bed when he found Jaquari.

The State also called Dr. John Scott Denton, who had

conducted the postmortem examination. Dr. Denton

found impression or ligature marks on Jaquari’s neck

that were an “exact fit” to the blue sheet’s elastic band.

His report indicated that the impression marks did not

match the telephone cord that had initially aroused the

police’s suspicions and which Harris had identified as

the murder weapon in her first, “spontaneous” confession.

Dr. Denton also acknowledged that he had at first con-

cluded after the May 15 autopsy that Jaquari’s death

was accidental — specifically, that Jaquari had “become

entangled with an elastic bed fitted sheet and had fallen

to the ground from his upper bunk.” Harris, 904 N.E.2d

at 1083. Several days later, however, a detective told

Dr. Denton that Harris had confessed to strangling

Jaquari. Dr. Denton also learned from the investigation

report that Jaquari slept on the bottom bunk and that

traces of blood were found on the lower bed’s linen.

Dr. Denton then revised his medical opinion to con-

clude that Jaquari’s death was a homicide. Dr. Denton

did not say whether he was also told that Diante had

No. 12-1088 9

been present when Jaquari died and said he saw Jaquari

wrap the elastic around his own neck.2

Harris testified in her own defense. She testified that

when she came home from the laundromat to find her

children outside the apartment, she scolded them and sent

them to their room but did not strike them. She then

fiddled with a telephone jack, helped Dancy to the bed-

room to take a nap, and went across the street to get

her clothes from the dryer. Upon her return to the apart-

ment, she was met by Dancy outside bearing Jaquari

in his arms. This testimony obviously contradicted the

videotaped confession the jury had already seen. But

Harris told the jury that the videotaped confession was

the product of a 27-hour coercive interrogation in

which detectives pushed her, deprived her of food and

2

Harris has argued to the state courts and in her federal

habeas proceedings that the State failed to prove the corpus

deliciti element of first-degree murder — that is, proof that a

crime occurred. This due process claim is cognizable in

habeas review under Jackson v. Virginia, 443 U.S. 307, 319 (1979),

if no “rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Under

Illinois law, “in establishing the corpus delicti, there must be

some evidence, apart from the confession, demonstrating that a

crime occurred.” People v. Willingham, 432 N.E.2d 861, 864 (Ill.

1982). Harris asserts that Dr. Denton’s opinion that Jaquari’s

death was a homicide was derived from her confession and

therefore did not independently corroborate criminal agency.

Because we grant habeas relief on other grounds, we do not

pass on Harris’s due process argument.

10 No. 12-1088

water, threatened her, and promised her lenient treat-

ment in exchange for cooperation. In the videotaped

confession, though, she had said that the police had fed

her and treated her well and had made neither threats

nor promises.

The defense theory of accidental death was supported

by Dancy, who had previously seen Jaquari coiling the

sheet’s elastic band around his neck, and by other

family members who spoke more generally about his

curiosity and playfulness. For example, one aunt said

that she had once seen Jaquari put a plastic laundry

bag over his face.

The defense’s key witness, however, was six-year-old

Diante, who was with Jaquari when he died. The day

after Jaquari’s death, Diante was interviewed by Ale

Levy, an investigator with the Child Advocacy Center,

an agency that partners with the Chicago Police Depart-

ment, the State’s Attorney, and the Department of Child

and Family Services. A Chicago police detective who

was present for Levy’s interview took notes. The notes

state that Diante “knows his age,” “his colors,” “different

amounts,” his “grade in school,” and the “difference

between truth/lies.” Diante indicated that he “knows

about Jaquari’s death, knows Jaquari was at the hospi-

tal.” Diante also said that Jaquari had “wanted to go

outside” but he “got in trouble.” “Mom and Dad came

home [and] gave both of them a spanking. Mom

spanked Diante with Belt on his leg,” which “was bleed-

ing.” Most important, Diante said that “Jaquari was

playing [and] wrapped elastic around neck from blue

No. 12-1088 11

sheet” and that Diante was “playing Spiderman game”

and “couldn’t help Jaquari get out of his sheet.” Levy

wrote, “Diante & Jaquari were supposed to go to sleep.”

Towards the end, Jaquari told Levy, “ ‘Jaquari had a

bubble’ while he was asleep.” He said, “Jaquari died

it happened in their bedroom” and “Diante was

sleeping when Jaquari died.”

C. The Competency Hearing and Ruling

Although Diante was also listed as a witness for the

State, the State moved to disqualify him as incompetent

to testify. Under Illinois law, every person is presumed

competent to be a witness and will be permitted

to testify unless he or she is either (1) “Incapable of ex-

pressing himself or herself concerning the matter so as

to be understood, either directly or through interpreta-

tion by one who can understand him or her”; or

(2) “Incapable of understanding the duty of a witness to

tell the truth.” 725 ILCS 5/115-14(a), (b); see People v.

Velasco, 575 N.E.2d 954, 959 (Ill. App. 1991). The burden

of proof is on the party challenging competency. See

725 ILCS 5/115-14(c); People v. Hoke, 571 N.E.2d 1143,

1148 (Ill. App. 1991).

The trial court began the competency hearing with a

basic legal error, stating “the Defense, it’s their witness

whom they’re attempting to call. They shall bear the

burden of proof in demonstrating Diante’s competency.”

No objection was made. With defense counsel’s agree-

ment, the hearing took place without Harris present.

Diante took the stand and fielded some preliminary

12 No. 12-1088

questions from defense counsel, spelling his name and

stating his age, birthday, the cities where he had lived,

his teacher’s name, and the colors of certain objects. Asked

by the court if he knew the difference between a truth

and a lie, Diante responded, “Telling a lie, you might get

in trouble. Telling the truth, you might get a star,”

which he agreed was “a good thing.”

Diante also described the events from the day Jaquari

died. On the last day that Diante had been in his room

at the North Chicago apartment, he had been with

Jaquari and was “Playing my game.” Defense counsel

asked what Jaquari was doing and Diante replied, “Jaquari

was playing with that string and wrapping it around

his neck.” S.A. 118. Asked what string he was referring

to, Diante said it was the band from the blue sheet.

He also testified that no one else was in the room with

them when Jaquari was wrapping the sheet’s elastic

around his neck. The prosecutor later asked whether

Jaquari “wrapped something around his neck from the

sheet.” Diante nodded and said that the sheet was “On

my bed” and that Jaquari was “Standing on the floor”

while Diante was “Sitting, playing with my toys.” S.A. 125.

The prosecutor also asked Diante if he remembered

telling a Department of Child and Family Services in-

vestigator named Karen Wilson — who spoke with

Diante the day after Levy did — that he was asleep

when Jaquari “got hurt.” Diante answered yes. S.A. 127.

In his direct questioning, defense counsel had asked

Diante whether he knew “the difference between real

people and cartoons.” S.A. 118. Diante said he did and

No. 12-1088 13

named “Scooby-Doo, Tom and Jerry” as examples of

the latter. S.A. 119. Later, the prosecutor followed up

on this line of questioning, but after referring to the

original difference between real people and cartoons,

the prosecutor shifted to use the word “real” differently

to ask about the difference between real people and

fictional characters. This shift caused some confusion:

Q Okay. Now, you were talking about some cartoons

a couple of minutes ago. You were talking about

Scooby-Doo, and cartoons and real things, right?

A (Nodding.)

Q Do you think Spiderman is real?

A Yes.

Q And have you ever seen Spiderman in person?

A Yes.

Q Okay. And what did you say to Spiderman when

you saw him in person?

A Nothing.

Q You didn’t say anything to him?

A (Nodding.)

Q Have you ever seen Scooby-Doo?

A No.

Q Okay. Is Scooby-Doo real?

A No.

Q Okay. Scooby-Doo is what?

14 No. 12-1088

A A movie.

Q Okay. And how about The Hulk? Is The Hulk real

or is he something else?

A Something else.

...

Q Okay. Let’s see. How about Santa Claus, is Santa

Claus real?

A Yes.

Q And have you ever seen Santa Claus in person?

A No.

S.A. 122-23. Later, the prosecutor asked whether Diante

believed the tooth fairy was real, to which he said yes.

S.A. 129. Consistent with the real-versus-cartoon frame-

work established by the defense, Diante evidently under-

stood the prosecutor to be asking whether Spiderman

and Santa Claus were animated or human characters,

and that they were “real” insofar as they were not

cartoons, which was correct. See, e.g., Elf (New Line

Cinema 2003) (live-action film); Spider-Man (Columbia

Pictures 2002) (same). At trial, Dancy testified that

Diante was familiar with the recent Spiderman live-

action films at the time of Jaquari’s death.

The prosecutor asked Diante about Jaquari, and once

again ambiguous questioning and a failure to follow up

generated confusion:

Q . . . . You told me earlier that you have seen

Jaquari in heaven, right?

No. 12-1088 15

A Yes.

Q And do you remember the last time you saw

Jaquari in heaven?

...

A Where I was in the rainbow.

Q When you were in the what?

A In the rainbow.

Q “In the rainbow”? You were in the rainbow?

A Uhn-uhn. No, in the car.

Q Oh, in the car. And you saw Jaquari in heaven

then?

A (Nodding.)

S.A. 123-24. The transcript reads, “rainbow,” but the

context shows that Diante was saying “limo.” That

was the conclusion of Dr. Robert Galatzer-Levy, a child

psychiatrist who conducted a thorough competency

assessment of Diante six months after trial. See S.A. 141.

(“[H]is pronunciation of the word ‘limo’ was difficult

for this evaluator to understand; I initially believed he

was saying something like ‘lambo.’ ”).

As for the “heaven” reference, during Dr. Galatzer-

Levy’s evaluation, Diante described a church as a “church

with heaven” and a courtroom as a “church with the

judge.” Id. That would be consistent with the rest of

Diante’s testimony on the subject at the competency

hearing, in which he said that other living family

16 No. 12-1088

members were present “in heaven” in an exchange

that took on great importance for the judge:

Q Who else was in heaven with him?

A My brother and my cousin.

Q Okay. What’s your brother’s name?

A Junior.

Q Okay. And he was there, too?

A (Nodding.)

Q And did you talk to Jaquari then?

A Uh-huh.

Q Did he say anything to you?

A Yes.

Q What did he say to you?

A He—He said, my mommy killed my brother,

and my mommy didn’t.

Q Okay. Now, I want to ask you a little bit about

your bedroom . . . .

S.A. 124-25. Because this account involves both of

Diante’s brothers, we cannot be completely certain

whether the “He” in the penultimate line refers to

Junior or to Jaquari. The difference bears on both the

competency determination and Harris’s guilt or inno-

cence. If the speaker was Junior, Diante was describing

what his surviving brother Junior had told him at the

wake or funeral: Junior said that Harris had killed

Jaquari, and Diante was telling the judge that was

No. 12-1088 17

wrong. The testimony is entirely different if Diante

meant that Jaquari appeared to his brothers from

beyond the grave to accuse their mother of killing him.

The first reading is supported by the fact that Diante

said, “He said, my mommy killed my brother,” not “He

said, my mommy killed me,” or “He said, my mommy

killed him.” The best support for the second reading is

that Jaquari was the brother the prosecutor had last

mentioned (three questions earlier), but it’s safe to say

that six-year-old Diante was not precise with pronouns

and antecedents. Given the ambiguity, one would have

expected counsel or the court to ask some follow-up

questions to learn what Diante meant, at least before

assuming that he was reporting a visit from beyond

the grave. But nothing more was said on the subject.

And not only did the court assume that this testimony

referred to a communication with Jaquari’s spirit, but it

relied heavily on his report of this supposed “fantasy” to

find that Diante was not competent to testify.

At the close of Diante’s testimony, the court asked him:

“did you — anyone tell you what you should say here

when you got to court?” Diante said “No.” “Have you

spoken before with any of the people who are here

today before you came to court?” Diante again answered

“No.” S.A. 131.3 Then, the following final exchange took

place between the judge and Diante:

3

Apparently, Diante had spoken with the prosecutor. Dkt. 1-17

at 92. Defense counsel had also spoken to Diante, but “that

was actually here at court . . . prior to [his] taking the stand.”

Id. at 94.

18 No. 12-1088

Q Diante, you [told] me you remember playing

Spiderman in your bedroom with your brother, is

that right?

A Yes.

Q Do you remember anything else that happened

that day?

A No.

Q Nothing at all?

A No.

Q Okay. Anything further, Mr. Wright?

S.A. 132.

Following Diante’s testimony, defense counsel said

that he wished to call Ale Levy, the investigator who

interviewed Diante the day after his brother’s death. Levy

was not present at the courthouse, however. Defense

counsel said that he had subpoenaed Levy, but neither the

court nor the prosecutor was familiar with her. The

court asked, “have you made any effort to procure her

appearance here at this time, so as not to delay these

proceedings?” Dkt. No. 1-17 at 81. Defense counsel said

he had not. In response to the court’s question about the

substance of Levy’s expected testimony, defense counsel

said that she “actually interviewed Diante Dancy; and

asked him a lot of the same questions that was asked,” and

“he was able to tell her, on that day, which is roughly 12,

15 hours after the event, exactly everything that hap-

pened.” Id. at 82. The trial judge replied, “I’m not saying

it’s not relevant. I’m just at a lack to find out what that

No. 12-1088 19

would be, in order to determine whether I would

grant a continuance to get that witness here.” Id. at 83.

Counsel then said the defense had no further wit-

nesses. The court confirmed that counsel was “not choos-

ing to call that person at this time?” Counsel answered no.

The State then called Karen Wilson, the second inves-

tigator to interview Diante after Jaquari died. She

testified that in her conversation with Diante, he stated

that Scooby-Doo, Spiderman, and Santa Claus were real

persons. Dkt. No. 1-17 at 86. She also said that

Diante told her he was asleep when his brother got hurt.

On cross-examination, Wilson agreed that Diante had

said he did not see “mommy or daddy tie a sheet

around Jaquari’s neck.” Dkt. 1-17 at 89.

The court heard oral argument. Defense counsel went

first, contending that Jaquari really was in heaven, and

that it was perfectly reasonable for a six-year-old to

believe in Santa Claus and the tooth fairy, and that such

beliefs did not affect his “ability to recall the facts on

May 14th.” Dkt. No. 1-17 at 98. Counsel concluded by

saying “we believe that we’ve met our burden” showing

that Diante was competent to testify. Id. at 100. The prose-

cutor argued that Diante was incompetent because of

his “inability to differentiate between reality and

fantasy with the Spiderman, Santa Claus, tooth fairy

characters,” and that he testified not just that he believed

his brother was in heaven but that he “saw his brother

in heaven.” Id. at 101 (emphasis added). In rebuttal,

defense counsel stated: “The only issue is that . . . he

observed on that day Jaquari wrap the sheet around his

20 No. 12-1088

own neck. He knew where they were at, he knew who

was present. That’s the only issue that is relevant as

relates to the information for him being called as a wit-

ness.” Id. at 102.

The court ruled that Diante was incompetent. The judge

began by saying: “Defense counsel misperceives what

the issue is with regard to witness competency” because “a

two month old baby could have been in the room

and witnessed or observed what occurred, but that would

not make them a competent witness if they’re lacking

other criteria.” He acknowledged that Illinois had abol-

ished age-based presumptions of incompetency and

that the statute now provided for only two bases for

disqualification: (1) inability to express oneself so as to

be understood; or (2) inability to understand the duty of

a witness to tell the truth. S.A. 85-86; see 725 ILCS 5/115-

14. The court first addressed the second prong, saying:

“I don’t find any questions at all that were posed to

the witness with regard to his understanding of any

concept of a duty to tell the truth when presented in a

courtroom.” S.A. 87. Diante’s testimony that “[y]ou get

in trouble” for telling a lie and “[y]ou get a star” for

telling a truth “gave the Court very little insight into

whether or not Diante knows what is the truth and what

is a lie or not true.” S.A. 86. “The witness was never

asked whether he would promise to tell the truth and

what that might mean to him here in this proceeding.”

S.A. 88.

Turning to the first prong, the court said it had “consid-

erable question as to that issue,” identifying a number of

No. 12-1088 21

factors that cast doubt on Diante’s ability to “perceive

and remember events and to relate them.” S.A. 88. First,

Diante recalled “playing Spiderman” and “the aspect

with the cord and the neck,” but the court, referring to

its own question at the end of his testimony, said Diante

“remembers nothing else at all from that day.” Id. Second,

the court questioned whether Diante had the ability to

distinguish between reality and fantasy:

Diante is still at that point in his life . . . where the

Court cannot say that he has moved through that

youthful period or childhood period of fantasy

with regard to still believing certain things to be

real, whether it be Spiderman, who he says, he has

met in person, the tooth fairy, Santa Claus. . . . He

said, he met with his brother in heaven and his

brother told him his mother killed him. I mean,

that is not real. That is a fantasy.

S.A. 89-90. The court then concluded that Diante was

incompetent to testify under either prong of the statute:

And so I do believe at this point in time Diante lacks

the ability to differentiate between reality and fan-

tasy. And also, I believe he lacks the ability to

recall the events of the date in question and to be

able to communicate them effectively here in court

under an understanding and acceptance of a duty

to testify truthfully in this case. And again, it is not

clear to this Court that even he understands to dif-

ferentiate significantly between those two concepts,

truthfulness and falsehood.

S.A. 90. Diante did not testify. The jury convicted Harris

of first-degree murder.

22 No. 12-1088

D. Post-Conviction Proceedings

With new counsel, Harris moved for a new trial. Her

supplemental motion included four constitutional

claims: (1) the court violated Harris’s right to call

witnesses in her own defense in deeming Diante incom-

petent to testify (Sixth Amendment right to compulsory

process); (2) the evidence was insufficient to prove

the corpus delicti element of murder (Due Process); (3) the

court erred in denying her motion to suppress her con-

fession (Fifth Amendment right against self-incrimina-

tion); and (4) trial counsel was ineffective (Sixth Amend-

ment right to counsel). Her motion included Dr. Galatzer-

Levy’s competency assessment. He had concluded that

Diante was “neither incapable of expressing himself

concerning the events surrounding his brother’s death,

nor incapable of understanding the duty of a witness to

tell the truth.” S.A. 143.4 Harris also submitted the in-

terview notes of Child Advocacy Center investigator

Ale Levy and affidavits from two expert witnesses on

false confessions and pediatric asphyxiation.

4

Dr. Galatzer-Levy wrote that Diante was “able to clearly

articulate during my evaluation what he observed concerning

the circumstances surrounding his brother’s death,” including

that “ ‘Jaquari killed his own self,’ that Jaquari wrapped a

sheet around his neck (indicating physically with his hands

what he saw)” and that “Diante’s mother and father were not

in the room when this occurred.” S.A. 139. Although

Diante’s sequencing of the events surrounding his brother’s

death was “sometimes confused,” Dr. Galatzer-Levy said

this was “typical of a child of Diante’s age.” Id.

No. 12-1088 23

The trial court denied Harris’s motion for a new trial. In

addressing the issue of Diante’s competency hearing, the

court conceded that it had erred in placing the burden

of proof on Harris but held that it would have reached

the same result even if the State had borne the burden.

In his ruling from the bench, the trial judge said: “It was

clear to the Court that [Diante] was in the world of a

child. That he could not do those things that the law

requires competent witnesses to do, so that was upon

that basis that I found [Diante] not competent to testify,

and that would have been the outcome or my finding

regardless of whether I had articulated the correct

burden of proof.” S.A. 59. Aside from this vague, post hoc

justification for its ruling and some recitation of the

statutory language, the court did not elaborate on its

ruling at trial that Diante was incompetent to testify.

The trial court did not address Harris’s Compulsory

Process claim. The court sentenced Harris to 30 years in

prison.

On direct appeal, the Illinois Appellate Court affirmed.

People v. Harris, 904 N.E.2d 1077 (Ill. App. 2009). The

panel majority held that: (1) the trial court did not abuse

its discretion in finding Diante incompetent under

Illinois’s witness competency statute and that, even if it

had, any error was harmless because Diante’s testimony

would not have influenced the verdict; (2) Dr. Denton’s

revised conclusion that Jaquari’s death was a homicide

was sufficiently independent to establish that a crime

had occurred; (3) the motion to suppress was properly

denied because Harris was not in custody during her

initial, unwarned confession; and (4) Harris failed to

24 No. 12-1088

establish an ineffective assistance of counsel claim

because “she suffered no prejudice from her counsel’s

purported deficiencies.” Id. at 1098. One judge dis-

sented, taking the view that Harris’s confession

should have been suppressed. Id. at 1100-02 (Tully, J.,

dissenting). Neither the majority nor the dissent said

anything about Harris’s Compulsory Process claim. The

Supreme Court of Illinois denied Harris’s petition for

leave to appeal.

Harris filed a petition for habeas corpus under 28

U.S.C. § 2254, seeking relief on the same grounds she

presented to the state courts. With the exception of the

competency issue, the district court found reasonable

the Illinois Appellate Court’s adjudication of each of

Harris’s four claims. See Harris v. Thompson, No. 10 cv

6257, 2011 WL 6257143 (N.D. Ill. Dec. 14, 2011). As to the

incompetency determination, the district court did not

recognize that the state courts had neglected to reach

Harris’s Compulsory Process claim. Instead, it appears to

have treated the state courts’ denial of Harris’s state

evidentiary law claims as an adjudication of her Sixth

Amendment claim, as well. The district court concluded

that the appellate court unreasonably affirmed the trial

judge on the basis of the competency statute’s second

prong (incomprehension of the duty to tell the truth),

since the trial judge had said that he had heard no testi-

mony on that question, and it was the State that bore

the burden of proof. However, the appellate court had

also affirmed the incompetency determination on the

grounds of the first prong (inability to be understood),

and the district court concluded that this ground for

affirmance was reasonable because there was some evi-

No. 12-1088 25

dence on that issue. The district court also found reason-

able the appellate court’s conclusion that any error in

disallowing Diante’s testimony was harmless, and the

court denied the petition for a writ of habeas corpus.

Harris timely appealed. The parties agree that she has

exhausted her state remedies and no procedural bar

applies to any of the claims presented.

II. Habeas Corpus Review Under 28 U.S.C. § 2254

We have jurisdiction under 28 U.S.C. § 2253(a), and we

review de novo the district court’s denial of habeas

corpus relief. See Steffes v. Pollard, 663 F.3d 276, 281 (7th

Cir. 2011). The statutory authority of federal courts to

issue a habeas writ for persons in state custody is § 2254,

as amended by the Antiterrorism and Effective Death

Penalty Act (AEDPA). Under AEDPA, a habeas petition

may be granted only if a state court’s ruling on a

federal constitutional question “was contrary to, or in-

volved an unreasonable application of, clearly estab-

lished Federal law,” or “was based on an unreasonable

determination of the facts in light of the evidence pre-

sented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)

& (2).

In applying this “difficult to meet . . . and highly deferen-

tial standard,” Cullen v. Pinholster, 131 S. Ct. 1388, 1398

(2011) (internal quotation marks omitted), federal courts

must avoid “using federal habeas corpus review as a

vehicle to second-guess the reasonable decisions of state

courts.” Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012),

quoting Renico v. Lett, 130 S. Ct. 1855, 1866 (2010). Rather,

26 No. 12-1088

“a state prisoner must show that the state court’s ruling

on the claim being presented in federal court was

so lacking in justification that there was an error well

understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington

v. Richter, 131 S. Ct. 770, 786-87 (2011). Our review

under § 2254(d) “is limited to the record that was

before the state court.” Pinholster, 131 S. Ct. at 1398.

AEDPA’s deferential standard of review applies only

to claims that were actually “adjudicated on the merits

in State court proceedings.” 28 U.S.C. § 2254(d). Where

the state courts did not reach a federal constitutional

issue, “the claim is reviewed de novo.” Cone v. Bell, 556

U.S. 449, 472 (2009). When no state court has squarely

addressed the merits of a habeas claim, “we review

the claim under the pre-AEDPA standard of 28 U.S.C.

§ 2243, under which we ‘dispose of the matter as law

and justice require.’ ” Toliver v. Pollard, 688 F.3d 853, 859

(7th Cir. 2012), quoting Morales v. Johnson, 659 F.3d 588,

599 (7th Cir. 2011). The operative decision under review

is that of the last state court to address a given claim on

the merits. See Greene v. Fisher, 132 S. Ct. 38, 45 (2011);

Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006). In this

case, that is the Illinois Appellate Court’s decision in

People v. Harris, 904 N.E.2d 1077 (Ill. App. 2009).

III. Compulsory Process Clause Claim

A. Standard of Review

The Sixth Amendment guarantees the accused the

right to “have compulsory process for obtaining wit-

No. 12-1088 27

nesses in his favor.” As a threshold matter, we must

determine whether AEDPA deference applies to this

claim. The habeas petitioner clearly presented a federal

constitutional claim to the state courts, which affirmed

her conviction in a published opinion but did not

explicitly address or even acknowledge the existence of

the federal constitutional issue. In her brief to the

state court, Harris alleged a deprivation of “her right to

compulsory process under the Sixth Amendment of the

U.S. Constitution and Article I, § 8 of the Illinois Con-

stitution,” cited the foundational Supreme Court case,

Washington v. Texas, 388 U.S. 14 (1967), and other federal

and state cases, and set forth the applicable constitu-

tional standard. See Dkt. No. 1-5 at 42. Yet the state

court analyzed the disqualification of Diante as a wit-

ness purely as an issue of state evidentiary law, re-

viewing the trial court’s incompetency determination

for an abuse of discretion and harmless error. See 904

N.E.2d at 1091-95. At the beginning of the relevant

section of its opinion, the court acknowledged that

Harris “assert[ed] that the trial court abused its discretion

and violated her constitutional rights when it ruled that

Diante Dancy was incompetent to testify.” Id. at 1091-92

(emphasis added). But the appellate court never

identified which constitutional rights were at issue or

referred to the Compulsory Process Clause, the Sixth

Amendment, or even the Due Process Clause. And the

court cited no case — state or federal — on the constitu-

tional issue.

The appellate court’s silence on the issue fell below

even the low threshold a state court decision must meet

28 No. 12-1088

to qualify as “on the merits” under AEDPA. The state

court need not explain its reasoning in rejecting the peti-

tioner’s federal claim. See Richter, 131 S. Ct. at 784; see

also Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005)

(“AEDPA’s requirement that a petitioner’s claim be

adjudicated on the merits by a state court is not an en-

titlement to a well-articulated or even a correct decision

by a state court.”). Nor must it cite or even be aware of any

particular cases. See Richter, 131 S. Ct. at 784. Sometimes

even saying nothing at all will suffice. In Richter, the

Supreme Court held that the California Supreme

Court’s one-sentence summary order denying a

prisoner’s petition for state collateral relief was “on the

merits” for AEDPA purposes: “When a federal claim

has been presented to a state court and the state court

has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence

of any indication or state-law procedural principles to

the contrary.” 131 S. Ct. at 784-85. But that “presumption

may be overcome when there is reason to think some

other explanation for the state court’s decision is more

likely,” though there was no such reason in Richter. Id.

at 785. Although the state supreme court’s summary

dismissal of post-conviction relief in Richter did not

address the merits of the petitioner’s federal constitu-

tional arguments, “the state court did not say it was

denying the claim for any other reason,” such as a proce-

dural default or other independent and adequate state-

law ground. Id. at 784.

In this case, by contrast, we have ample reason to

think some other explanation for the state court’s deci-

No. 12-1088 29

sion is more likely — the very reasons the state court

actually gave, which were all based on state evidence

law, not federal constitutional law. The state court’s

decision on the incompetency ruling reached four legal

conclusions. First, the trial court’s “procedural error”

in misallocating of the burden of proof was not “outcome-

determinative” in the ultimate determination of incom-

petency. Harris, 904 N.E.2d at 1092. Second, the trial

court did not “base[ ] its analysis on factors outside

Illinois statutory law.” Id. at 1093. Third, the trial

court’s “determination of incompetency” was not “unsup-

ported by the record.” Id. at 1094. Finally, even assuming

that the trial court had erred in its ruling, the error

had been “harmless beyond a reasonable doubt.” Id. at

1094. In sum, the appellate court’s adjudication rested

entirely on Harris’s claim of state evidentiary error. It

did not hint at any federal (or state) constitutional

ground of decision. The Richter presumption and AEDPA

deference therefore do not apply. See Sussman v. Jenkins,

642 F.3d 532, 534 (7th Cir. 2011) (Ripple, J., in chambers)

(denying motion to stay mandate and concluding that

Richter presumption was inapplicable where state

appellate court issued an opinion but did not address

the constitutional question); see also Sussman v. Jenkins,

636 F.3d 329, 350 (7th Cir. 2011) (underlying opinion).

This also is not a case where an earlier state opinion

“fairly apppear[s] to rest primarily upon federal law,”

but a later one is silent or cryptic. See Ylst v. Nunnemaker,

501 U.S. 797, 803 (1991), quoting Coleman v. Thompson,

501 U.S. 722, 740 (1991). In that situation, the federal

habeas court “ ‘looks through’ [ the later decision] to the

30 No. 12-1088

last reasoned decision” and treats the later one as

reaching the merits if the earlier one did. Ylst, 501 U.S.

at 805. In this case neither the state appellate court nor

trial court mentioned Harris’s compulsory process

claim. When we look for the “last explained state-

court judgment” on Harris’s Sixth Amendment right

to present a defense, we do not find one. No state court

has actually decided it.

It follows from the Supreme Court’s AEDPA jurispru-

dence that where a state court overlooks a constitu-

tional claim that was fairly presented to it, federal

review is de novo. In Cone v. Bell, 556 U.S. 449 (2009), the

state post-conviction court deliberately bypassed a

federal claim because it believed — erroneously — that

the state courts had already addressed it on direct ap-

peal. Because the state courts therefore never reached the

merits of the Brady claim, the Supreme Court reviewed the

issue de novo. Id. at 472. Cone shows that when the state

court knowingly (but mistakenly) declines to address a

constitutional claim, AEDPA deference does not apply.

It would be odd, then, if AEDPA deference did apply

when the state court’s decision simply overlooked the

constitutional issue, as happened here.

This case is also analogous to the relatively common

situation in which the state courts address one prong of

the two-prong Strickland v. Washington test for ineffec-

tive assistance of counsel, but not the other. In that situa-

tion, federal courts apply AEDPA deference to the

prong the state courts reached but review the unaddressed

prong de novo. E.g., Rompilla v. Beard, 545 U.S. 374, 390

No. 12-1088 31

(2005) (de novo review where state courts did not reach

prejudice prong); Wiggins v. Smith, 539 U.S. 510, 534 (2003)

(same); see also Sussman, 636 F.3d at 350 (applying

Rompilla/Wiggins rule after Richter); accord, Toliver v.

Pollard, 688 F.3d 853, 857 (7th Cir. 2012) (same); Hooks

v. Workman, 689 F.3d 1148, 1188 (10th Cir. 2012) (same);

Foster v. Wolfenbarger, 687 F.3d 702, 709 (6th Cir. 2012)

(same); Johnson v. Sec’y, DOC, 643 F.3d 907, 930 (11th

Cir. 2011).

Here, the state courts simply have not addressed the

federal constitutional issue. When that happens, federal

habeas review must be de novo for there is no state court

judgment to which we could defer. See, e.g., Fenenbock v.

Dir. of Corrections, 681 F.3d 968, 978 n.12 (9th Cir. 2012)

(“No deference is due to the last reasoned state court

opinion because it failed to address the constitutional

question, resolving the claim only on state evidentiary

grounds.”); accord, Campbell v. Bradshaw, 674 F.3d 578,

596 (6th Cir. 2012), petition for cert. filed (U.S. July 18,

2012) (No. 12-5374); Han Tak Lee v. Glunt, 667 F.3d 397,

403 (3d Cir. 2012); Clements v. Clarke, 592 F.3d 45, 55 (1st

Cir. 2010).5

5

In some cases, perhaps, the state court’s analysis of state law

may be substantively co-extensive with the federal constitu-

tional issue. See, e.g., Childers v. Floyd, 642 F.3d 953, 970, 971 n.19

(11th Cir. 2011) (en banc) (concluding that AEDPA deference

applied to review of Confrontation Clause claim because

state court’s disposition under state evidentiary law in effect

“addressed the Confrontation Clauses’s concerns,” which

(continued...)

32 No. 12-1088

AEDPA requires federal courts to accord substantial

deference to state court adjudications of federal constitu-

tional claims. Such deference is “part of the basic

structure of federal habeas jurisdiction,” which is “de-

signed to confirm that state courts are the principal

forum for asserting constitutional challenges to state

convictions” and to honor “the State’s significant interest

in repose for concluded litigation.” Richter, 131 S. Ct. at

787, quoting Harris v. Reed, 489 U.S. 255, 282 (1989) (Ken-

nedy, J., dissenting). Where the state courts have over-

looked a constitutional claim, however, these comity

and finality concerns have less force. In the absence of

a state decision on the merits, our review is “not circum-

scribed by a state court conclusion” on the issue.

Wiggins, 539 U.S. at 534. The Illinois courts did not adjudi-

cate Harris’s Compulsory Process Clause claim “on

the merits,” so our review is de novo.6

(...continued)

“did not slip the [state] court’s collective mind”), petition for

cert. filed, (U.S. July 6, 2011) (No. 11-42). In this case, we

need not decide that difficult issue, for there is no colorable

argument that the Illinois Appellate Court effectively

addressed the Compulsory Process Clause issue when it

decided that the trial court did not abuse its discretion in

finding Diante incompetent to testify. The constitutional

implications of the competency ruling were simply overlooked.

6

Even if this court were to indulge the presumption that the

Illinois courts actually adjudicated the Compulsory Process

claim “on the merits,” the outcome of our review would be

(continued...)

No. 12-1088 33

B. The Constitutional Standard

The Compulsory Process Clause, which provides that

the accused shall have the right “to have compulsory

process for obtaining witnesses in his favor,” together

with the Due Process Clause of the Fourteenth Amend-

ment, embodies a substantive right to present a mean-

ingful and complete criminal defense. See Holmes v.

South Carolina, 547 U.S. 319, 324 (2006); Taylor v. Illinois,

484 U.S. 400, 408 (1988). “The right to offer the testimony

of witnesses, and to compel their attendance, . . . is in

plain terms the right to present a defense, the right

to present the defendant’s version of the facts as well as

the prosecution’s to the jury so it may decide where the

truth lies.” Washington v. Texas, 388 U.S. 14, 19 (1967).

“Few rights are more fundamental than that of an

accused to present witnesses in his own defense,” Taylor,

484 U.S. at 408 — a right Chief Justice Marshall described

as “sacred.” United States v. Burr, 25 F. Cas. 30, 33 (C.C.D.

Va. 1807). The compulsory process right is an “essential

attribute of the adversary system itself,” Taylor, 484 U.S.

at 408, and “imperative to the function of the courts,”

which “depend on full disclosure of all the facts, within

the framework of the rules of evidence.” United States

v. Nixon, 418 U.S. 683, 709 (1974).

6

(...continued)

no different. For the reasons described below, the state court’s

harmless error analysis (which would stand as a proxy for,

at least, the materiality prong of the constitutional issue)

would be both an unreasonable determination of facts and

an unreasonable application of law in the instant case.

34 No. 12-1088

Of course, the right is not unlimited. The defendant

“must comply with established rules of procedure

and evidence designed to assure both fairness and reli-

ability.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

The accused “does not have an unfettered right to

offer testimony that is incompetent, privileged, or other-

wise inadmissible under standard rules of evidence.”

Taylor, 484 U.S. at 410. While a “trial court may not

ignore the fundamental character of the defendant’s

right to offer the testimony of witnesses in his favor,” the

“countervailing public interest[ ]” in the “integrity of

the adversary process, which depends both on the pre-

sentation of reliable evidence and rejection of unreliable

evidence, . . . must also weigh in the balance.” Id. at

414, 415. Thus, the Compulsory Process Clause does

not require criminal courts to admit evidence that is

irrelevant, Crane v. Kentucky, 476 U.S. 683, 689-90 (1986),

testimony by persons who are mentally infirm, see Wash-

ington, 388 U.S. at 23 n.21, or evidence that represents

a half-truth, see United States v. Nobles, 422 U.S. 225,

241 (1975).

On the other hand, the exclusion of defense evidence

“abridge[s] an accused’s right to present a defense”

where the restriction is “ ‘arbitrary’ or ‘disproportionate

to the purposes’ [it is] designed to serve,” and the

evidence “implicate[s] a sufficiently weighty interest of

the accused.” United States v. Scheffer, 523 U.S. 303, 308-09

(1998), quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987).

For example, the Supreme Court has struck down

under the Compulsory Process Clause a rule against

introducing the testimony of an alleged accomplice,

Washington, 388 U.S. at 22-23; an application of the

No. 12-1088 35

hearsay bar to statements that “were originally made

and subsequently offered at trial under circumstances

that provided considerable assurance of their reliabil-

ity,” Chambers, 410 U.S. at 300; the exclusion of evidence

bearing on the credibility of a voluntary confession,

Crane, 476 U.S. at 688-91; and a per se rule excluding

all post-hypnosis testimony, Rock, 483 U.S. at 56-62.

The Court has acknowledged the “power of States to

exclude evidence through the application of evidentiary

rules that themselves serve the interests of fairness

and reliability—even if the defendant would prefer to

see that evidence admitted.” Crane, 476 U.S. at 690. But

it simultaneously observed that the “opportunity

[to be heard] would be an empty one if the State

were perm itted to exclude competent, reliable

evidence . . . when such evidence is central to the defen-

dant’s claim of innocence.” Id.

The applicable constitutional standard is this: to

establish that her right to compulsory process was

violated by the exclusion of Diante’s testimony, Harris

must show that (1) the testimony would have been

“both material and favorable” to her defense, United

States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982), and

(2) that the exclusion was “arbitrary” or “disproportionate”

to the evidentiary purpose advanced by the exclusion,

Scheffer, 523 U.S. at 308, quoting Rock, 483 U.S. at 56.

We conclude that Harris has made each showing.7

7

Several other circuits have applied equivalent standards for

adjudicating Compulsory Process claims. See, e.g., Jackson v.

(continued...)

36 No. 12-1088

1. Material and Favorable to the Defense

In Valenzuela-Bernal, the Supreme Court imported the

materiality requirement of the Brady v. Maryland line

of cases into the Compulsory Process Clause analysis.

Under this standard, the exclusion of a witness is

material “only if there is a reasonable likelihood that

the testimony could have affected the judgment of the

(...continued)

Nevada, 688 F.3d 1091, 1096 (9th Cir. 2012) (“Additionally, a

violation of the right to present a defense does not occur any

time such evidence is excluded, but rather only when its

exclusion is ‘arbitrary or disproportionate to the purposes

[the exclusionary rule is] designed to serve.’ ”), quoting Holmes

v. South Carolina, 547 U.S. 319, 324 (2006); United States v.

Hardy, 586 F.3d 1040, 1045 (6th Cir. 2009) (to determine

whether exclusion of defense evidence violated right of

accused to present a defense, courts first “weigh a defendant’s

Compulsory Process Clause rights against . . . countervailing

public interests” and then examine “whether the omitted

evidence evaluated in the context of the entire record creates a

reasonable doubt that did not otherwise exist”) (internal

quotation marks and brackets omitted); Gov’t of Virgin Islands

v. Mills, 956 F.2d 443, 446 (3d Cir. 1992) (“[F]or Mills

to establish that he was convicted in violation of his Sixth

Amendment right to compulsory process, he must show:

First, that he was deprived of the opportunity to present

evidence in his favor; second, that the excluded testimony

would have been material and favorable to his defense; and

third, that the deprivation was arbitrary or disproportionate

to any legitimate evidentiary or procedural purpose.”), citing

Rock, 483 U.S. at 56.

No. 12-1088 37

trier of fact.” Valenzuela-Bernal, 458 U.S. at 874 (govern-

ment’s deportation of defense witness did not violate

Sixth Amendment because defendant did not show a

reasonable probability that he would not have been

convicted if the witness had testified). This materiality

standard is also identical to the one used to determine

whether ineffective assistance of counsel is “prejudi-

cial” under Strickland. See 466 U.S. at 694. (This

equivalence between the two standards is helpful

when we address Harris’s Strickland claim in Part IV,

below.)

Let’s first consider what Diante’s testimony would

have been. It is undisputed that Diante was in the

room when Jaquari died and that his account was

entirely exculpatory to Harris. He would have testified

that he saw Jaquari wrap the elastic band around his

own neck, that his mother was not in the room when

this happened, that Jaquari vomited in his “sleep,” and

that he saw a bubble form on Jaquari’s mouth. This was

all consistent with the physical evidence. Indeed, the

medical examiner had initially concluded that the cause

of death was self-asphyxiation. It was also consistent

with Sta-Von Dancy’s testimony that Jaquari had

wrapped the elastic band around his own neck on

previous occasions and that a mucus bubble had

formed when Dancy found Jaquari lying unconscious.

No other witness testified to what actually happened in

the moments before Jaquari died. As the trial court

itself acknowledged, Diante’s testimony was “critical”

to the defense. See S.A. 90-91. The testimony was

new, favorable, and not cumulative.

38 No. 12-1088

Diante’s testimony was also material. It is reasonably

likely it would have significantly altered the balance

of evidence to tip the scales in Harris’s favor. The analogy

to Brady helps show why. Imagine for a moment that

the prosecutor in Harris’s case had withheld from

the defense the fact that Diante had told police investiga-

tors that he saw Jaquari strangle himself with the

sheet’s elastic band. And imagine the prosecution’s

evidence is the same as it was at trial: no other eye-

witness contradicts Diante and says that Harris did

it, and no physical evidence implicates Harris in

Jaquari’s death. “If, for example, one of only two eye-

witnesses to a crime had told the prosecutor that

the defendant was definitely not its perpetrator and if

this statement was not disclosed to the defense, no

court would hesitate to reverse a conviction resting on

the testimony of the other eyewitness.” United States

v. Agurs, 427 U.S. 97, 113 n.21 (1976), quoting Victor

Bass, Comment, Brady v. Maryland and The Prosecutor’s

Duty to Disclose, 40 U. Chi. L. Rev. 112, 125 (1972).

A fortiori, if the prosecution failed to disclose the

existence of the case’s only eyewitness, whose testimony

is unique, exculpatory, and uncontradicted, the suppres-

sion would clearly be material. In such a case, the

Brady violation would be obvious. Cf. Smith v. Cain, 132

S. Ct. 627, 630-31 (2012) (finding Brady violation in pros-

ecution’s failure to disclose police notes that im-

peached only eyewitness).

Smith shows that impeachment of the inculpatory

testimony of the only eyewitness is material to an

accused’s defense. It follows that an undisclosed exculpa-

No. 12-1088 39

tory statement of the only eyewitness is certainly

material as well. Cf. Kyles v. Whitley, 514 U.S. 419, 429

(1995) (holding that State’s suppression of evidence that

would have enabled impeachment of the government’s

best witness violated Brady where the “heart of the

State’s case was eyewitness testimony”). As the

Supreme Court has made clear, “the materiality inquiry

is not just a matter of determining whether, after dis-

counting the inculpatory evidence in light of the undis-

closed evidence, the remaining evidence is sufficient

to support the jury’s conclusions.” Strickler v. Greene,

527 U.S. 263, 290 (1999), citing Kyles, 514 U.S. at 434-35.

Rather, the question is whether the “favorable evidence . . .

‘could reasonably be taken to put the whole case in such

a different light as to undermine confidence in the ver-

dict.’ ” Cone, 556 U.S. at 470, quoting Kyles, 514 U.S. at

435. Had the prosecution in this case withheld Diante’s

statements to authorities that Jaquari had asphyxiated

himself, it would require reversal of Harris’s conviction

under Brady.

Diante’s testimony is also material under the Compul-

sory Process Clause, for the same standard applies.

The trial court’s disqualification of Diante deprived

Harris of direct evidence from the sole eyewitness. This

evidence was central to her theory of the case — that

Jaquari’s death was a tragic accident. No other witness

replicated Diante’s testimony. And no other witness

contradicted Diante’s account at trial; only the medical

examiner supported the prosecution’s theory that the

Jaquari’s death was even a homicide, and Dr. Denton

admitted that this was a revised opinion. Diante’s testi-

mony was at least as valuable to Harris’s defense as

40 No. 12-1088

were the undisclosed statements from the State’s eye-

witness in Smith v. Cain, and it was just as likely to

cast “the whole case in such a different light as to under-

mine confidence in the verdict.” Cone, 556 U.S. at 470,

quoting Kyles, 514 U.S. at 435.

In its harmless error analysis of the state evidentiary

issue, the Illinois Appellate Court wrote that “the pro-

posed testimony of Diante was [not] likely to have

[had] any significant impact upon the strength of the

State’s case” because of the “inherent weakness in the

Diante proffer.” Harris, 904 N.E.2d at 1094. The only

value to Diante’s testimony, the court found, was the

“observation of Jaquari wrapping an elastic band around

his neck.” Id. But the court saw this testimony as not

particularly important because “jurors had learned

from other witnesses that Jaquari had done such

things before.” Id. And the force of Diante’s account

would have been “negated or otherwise diminished

by Diante’s admission to Ms. Wilson,” who interviewed

him two days after the death, “that ‘he was asleep

when his brother got hurt.’ ” Id. at 1095. (Diante also

told Ale Levy, who interviewed him the day before

Wilson, that he was “asleep when Jaquari died.”)

We respectfully find this analysis to lack merit. Diante’s

testimony that he saw his brother wrapping the very

instrument of death around his neck just before he died

is far more relevant than Dancy’s testimony that Jaquari

had wrapped the band around his neck on some

previous occasions. Evidence is cumulative when it

“goes to prove what has already been established by

No. 12-1088 41

other evidence.” Mosley v. Atchison, 689 F.3d 838, 848

(7th Cir. 2012), quoting Smith v. Sec’y of New Mexico

Dep’t of Corrections, 50 F.3d 801, 829 (10th Cir. 1995); see

also Arizona v. Fulminante, 499 U.S. 279, 299 (1991). None

of the other defense witnesses came close to Diante in

terms of their exculpatory value. Diante’s testimony

would not have been cumulative.

Nor does Diante’s “admission” to Wilson that he

was asleep when Jaquari died significantly reduce the

probative force of his testimony. At most, it suggests

that Diante, like many children, did not fully compre-

hend the concept of death and that, heartbreak-

ingly, he may well have watched his brother die with-

out realizing it. See Mark W. Speece & Sandor B. Brent,

Children’s Understandings of Death: A Review of Three Compo-

nents of a Death Concept, 55 Child. Dev. 1671, 1679 (1984)

(studies show that children acquire some understanding

of conceptual components of death between ages five

and seven, with “wide range of ages of acquisition”

observed). Diante believed Jaquari fell “asleep” with the

mucus bubble, and only later was he informed of

Jaquari’s death. Given Diante’s age, a reasonable jury

would understand perfectly well what was going on

here. At worst, Diante’s “admission” to being asleep

created a superficial tension with his earlier (and unam-

biguous) report that he saw Jaquari wrap the elastic

around his own neck and that his mother was not pres-

ent. At trial, the prosecution could certainly have explored

that tension and the jury may have considered it in evalu-

ating his testimony. But the idea that this would have

“negated” the rest of his testimony is groundless. By

42 No. 12-1088

excluding Diante’s testimony altogether, the trial court

denied Harris the opportunity to present the strongest

evidence of her innocence and impeded the jury in its

search for truth. The appellate court minimized the sig-

nificance of this exclusion by pointing to Diante’s ambigu-

ous “admission” and seizing on the most favorable in-

terpretation to the prosecution. That is not how harmless

error review works, and it is not how our materiality

analysis proceeds under the Compulsory Process

Clause. That inquiry asks whether the exclusion of the

evidence had a reasonable probability of affecting the

outcome of trial, and the disqualification of Diante did.

The State argues also that Diante’s testimony, even

if credited, would not have made a difference because

the evidence against Harris was “overwhelming.” Exculpa-

tory evidence may be inconsequential to the outcome of

the trial “if the State’s other evidence is strong enough

to sustain confidence in the verdict.” Smith, 132 S. Ct. at

630, citing Agurs, 427 U.S. at 112-13. But that is certainly

not this case. The prosecution presented no physical

evidence that linked Harris to Jaquari’s death. The

medical examiner initially concluded that Jaquari’s

death was a “tragic accident.” The testimony of Dancy,

the only person present at the apartment aside from

the accused and the two children, supported Harris’s

account.

The prosecution’s case rested entirely on Harris’s video-

taped confession. To be sure, a “voluntary confession”

is “highly probative evidence.” Oregon v. Elstad, 470 U.S.

298, 312 (1985); see also Fulminante, 499 U.S. at 296 (“A

No. 12-1088 43

confession is like no other evidence.”). But a confession is

not incontrovertible evidence of guilt. See Crane v. Ken-

tucky, 476 U.S. 683, 689 (1986).8 Nor does a confession

guarantee a guilty verdict.9 Not all confessions are

equally probative. See Crane, 476 U.S. at 691 (“evidence

about the manner in which a confession was obtained

is often highly relevant to its reliability and credibility”);

Smith v. United States, 348 U.S. 147, 153 (1954)

(“[T]hough a statement may not be ‘involuntary’ . . . , still

its reliability may be suspect if it is extracted from

one who is under the pressure of a police investiga-

tion — whose words may reflect the strain and confu-

sion attending his predicament rather than a clear reflec-

tion of his past.”). Simply because a confession is in

evidence does not make every violation of the accused’s

8

See also Innocence Project, False Confessions & Recording of

Custodial Interrogations, http://www.innocenceproject.org/

C o n t e n t / F a l s e _ C o n f e s s io n s _ _ R e c o r d i n g _ O f _ C u s t o d i a l _

Interrogations.php (last visited Oct. 12, 2012) (“Over 25 percent

of the more than 290 wrongful convictions overturned by

DNA evidence in the U.S. have involved some form of a

false confession.”).

9

See, e.g., Ben-Yisrayl v. Davis, 245 F. Supp. 2d 960, 961 (N.D.

Ind. 2002) (“Peterson was tried twice in Lake County for three

of the murders and was acquitted in those two trials,

despite his confession.”); Johnson v. Village of Riverdale, 192

F. Supp. 2d 874, 875 (N.D. Ill. 2002) (“Johnson — even though

innocent — confessed falsely to the murder. . . . Despite the

bogus ‘confession,’ Johnson was acquitted of all charges . . . .”).

44 No. 12-1088

constitutional rights ipso facto a harmless error.1 0 Con-

versely, even a coerced confession may be harmless when

the other evidence of guilt is “overwhelming,” Fulminante,

499 U.S. at 294-95 (White, J., dissenting), although that

situation is rare in the absence of a separate and

voluntary admission by the defendant.1 1

Here, we do not ask whether Diante’s testimony

would have overwhelmed the probative value of Harris’s

videotaped confession, nor even whether the jury

would more probably than not have credited Diante’s

eyewitness account over the confession. An appellate

court does not engage in such apples-to-oranges eviden-

tiary comparisons. Our task is simply to ask whether,

if Diante had testified, there is a reasonable probability

the jury would have returned a different verdict.

We are confident that the answer is yes. The videotaped

confession was powerful evidence, but the jury had

reasons to question its reliability, too — reasons in line

with leading research on false confessions. The jury

knew the confession was the product of interrogation

10

See, e.g., Brown v. Dugger, 831 F.2d 1547, 1554-55 (11th Cir.

1987) (granting writ; violation of Confrontation Clause and

prosecutorial comment on defendant’s silence were not

harmless despite confession).

11

See, e.g., United States v. Thompson, 286 F.3d 950, 962 (7th Cir.

2002) (finding harmless error where “the government presented

overwhelming evidence of the defendants’ guilt,” and where

“to the extent the [inculpatory] statements were important,

they were cumulative”).

No. 12-1088 45

stretching over 27 hours at the police station. Cf. Saul M.

Kassin et al., Police-Induced Confessions: Risk Factors and

Recommendations, 34 L. & Hum. Behav. 3, 16 (2010) (noting

that “false confessions tend to occur after long periods

of time” and “sleep deprivation is historically one of

the most potent methods used to . . . extract confessions”).

The jury knew Harris did not have an attorney

present during this questioning and that, as a mother

who had just lost her son, she was under stress and

stricken with grief. Cf. Gisli H. Gudjonsson et al.,

Custodial Interrogation, False Confession and Individual

Differences: A National Study Among Icelandic Youth, 41

Personality & Individual Differences 49, 56 (2006)

(finding that depressed mood is linked to a susceptibility

to provide false confession to police). The jury knew

that Harris’s initial, unwarned confession was incon-

sistent with the physical evidence — she said she had

used the telephone cord. Only in later confessions (and

after many more hours of interrogation) did she correct

this curious discrepancy. See Brandon L. Garrett, The

Substance of False Confessions, 62 Stan. L. Rev. 1051,

1087 (2010) (“The vast majority of these exonerees

made statements in their interrogations that were con-

tradicted by crime scene evidence, victim accounts, or

other evidence known to police during their investiga-

tion.”).12 The jury also heard Harris testify that she

12

See generally Richard A. Leo, False Confessions: Causes,

Consequences, and Implications, 37 J. Am. Acad. Psychiatry & L.

332, 337 (2009) (“Interrogators help create the false confession

(continued...)

46 No. 12-1088

had spent a sleepless night handcuffed in the inter-

rogation room and that the police had threatened her,

pushed her, called her names, and deprived her of food,

water, and access to the bathroom, though she had

said otherwise in the recorded confession.

These warning signals were not enough to overcome

the videotaped confession at trial. But they might well

have been enough if the jury had considered them

along with Diante’s testimony, which would have

changed the entire tenor of the defense case. The theory

of accidental death would have been buttressed by

an actual eyewitness — the only person, according to

the defense, who was present when Jaquari died. Such

testimony “could reasonably be taken to put the whole

case in such a different light as to undermine confidence

in the verdict.” Cone, 556 U.S. at 470, quoting Kyles, 514

U.S. at 435. In this light, the circumstances of Harris’s

interrogation and the possibility of a false confession

(...continued)

by pressuring the suspect to accept a particular account and

by suggesting facts of the crime to him, thereby contaminating

the suspect’s postadmission narrative. . . . If the entire inter-

rogation is captured on audio or video recording, then it may

be possible to trace, step by step, how and when the inter-

rogator implied or suggested the correct answers for the

suspect to incorporate into his postadmission narrative.”);

accord, Steven A. Drizin & Beth A. Colgan, Let the Cameras

Roll: Mandatory Videotaping of Interrogations Is the Solution to

Illinois’ Problem of False Confessions, 32 Loy. U. Chi. L.J.

337, 339-41 (2001).

No. 12-1088 47

may well have given the jury greater pause. In sum,

Diante’s testimony was significant enough to be rea-

sonably likely to have changed the outcome of the trial.

Diante’s testimony would have been material and favor-

able to Harris’s defense.

2. Arbitrary or Disproportionate

The second part of the constitutional question is

whether the disqualification of Diante as a witness was

arbitrary or disproportionate to the evidentiary interests

advanced by the exclusion. The Supreme Court has

had only limited occasions to deal in detail with the

arbitrary or disproportionate prong of Compulsory

Process Clause analysis. One pattern that has emerged

is the “parity” principle: a state rule that restricts the

presentation of testimony for the defense but not

the prosecution will generally be deemed arbitrary. See

Akhil Reed Amar, Sixth Amendment First Principles, 84

Geo. L. J. 641, 699 (1996). As Professor Amar noted, “the

Court has repeatedly struck down asymmetric wit-

ness rules, and noted the asymmetry.” Id. at 700, citing

Pennsylvania v. Ritchie, 480 U.S. 39, 57 & n.14 (1987) (dis-

tinguishing between symmetric and asymmetric

privileges in due process analysis); Green v. Georgia, 442

U.S. 95, 97 (1979) (invalidating, on due process grounds,

exclusion of hearsay statement that defendant sought

to introduce where government introduced same state-

ment in another criminal proceeding); Cool v. United

States, 409 U.S. 100, 103 n.4 (1974) (rejecting as “funda-

mentally unfair” an instruction telling jury it could

48 No. 12-1088

convict solely on basis of accomplice testimony but not

telling jury it could acquit solely on this basis, where

defendant put accomplice on the stand); Chambers v.

Mississippi, 410 U.S. 284, 295-98 (1973) (invalidating,

under Due Process Clause, verdict where defendant was

barred from impeaching his own witness while govern-

ment was free to impeach that witness); Webb v. Texas,

409 U.S. 95, 96, 98 (1972) (per curiam) (trial judge intimi-

dated sole witness for defense but not prosecution wit-

nesses); Washington v. Texas, 388 U.S. 14, 22 (1967) (accom-

plices were allowed to testify for government but not

for defendants); see also id. at 24-25 (Harlan, J., con-

curring in the judgment) (stressing this fact).

At first glance, the trial court’s disqualification of

Diante looks like an asymmetric application of Illinois’s

witness competency statute. Under the statute, all wit-

nesses are to be presumed competent, and the party

opposing competency has the burden to prove that

either of the two prongs of the statute applies. In the

usual case involving child witnesses, it is the prosecu-

tion offering the testimony, often from a victim of

sexual abuse. In such cases the defense bears the burden

of proof, and Illinois courts have often allowed very

young children to testify.1 3 Here, however, where the

13

See, e.g., People v. Mulvey, 853 N.E.2d 68, 70 (Ill. App. 2006)

(five-year-old with mental retardation found competent to

testify for prosecution); People v. Sutherland, 743 N.E.2d 1007,

1013-14 (Ill. App. 2000) (six-year-old competent to testify for

prosecution); People v. DeWeese, 698 N.E.2d 554, 559 (Ill. App.

(continued...)

No. 12-1088 49

defense offered the child witness’s testimony, the trial

court placed the burden on Harris to establish that

Diante was competent. If this procedural decision

reflected an actual rule in Illinois, it would certainly

violate the Compulsory Process Clause.

Of course, that is not the rule in Illinois. The trial judge

did not say that it was Harris’s burden to prove compe-

tency because she was the defendant; he simply forgot

about the presumption of competency in general. This

case therefore does not involve a formally asymmetric

evidentiary rule but rather the potentially arbitrary or

disproportionate application of a facially neutral rule.

To deal with that issue, precedents from the Supreme

Court, this court, and other circuits teach that we

should apply a balancing test, weighing the value of the

excluded evidence to the criminal defendant against

the state’s legitimate interests in the criminal trial

(...continued)

1998) (same); People v. Smith, 604 N.E.2d 858, 871-72 (Ill. App.

1992) (four-year-old competent to testify for prosecution);

People v. Mitchell, 576 N.E.2d 78, 83-84 (Ill. App. 1991) (same);

People v. Hoke, 571 N.E.2d 1143, 1148 (Ill. App. 1991) (two six-

year-olds competent to testify for prosecution); In re A.M.C. III,

500 N.E.2d 104, 106-07 (Ill. App. 1986) (five-year-old competent

to testify for prosecution); People v. Epps, 493 N.E.2d 378, 380

(Ill. App. 1986) (six-year-old competent to testify for prosecu-

tion); In Interest of E.S., 495 N.E.2d 1334, 1335-36 (Ill. App.

1986) (five-year-old competent to testify for prosecution);

People v. McNichols, 487 N.E.2d 1252, 1255-56 (Ill. App.

1986) (same).

50 No. 12-1088

process that are implicated by the exclusion. See

Chambers, 410 U.S. at 295; see also Holmes v. South

Carolina, 547 U.S. 319, 326-27 (2006) (“While the Con-

stitution thus prohibits the exclusion of defense

evidence under rules that serve no legitimate purpose

or that are disproportionate to the ends that they are

asserted to promote . . . the Constitution permits judges

‘to exclude evidence that is repetitive . . . , only

marginally relevant or poses an undue risk of harass-

ment, prejudice, [or] confusion of the issues.’ ”) (internal

citations and some internal quotation marks omitted),

quoting Crane v. Kentucky, 476 U.S. 683, 689-90 (1986). In

Crane, for example, the Supreme Court addressed the

state trial court’s ruling that the accused could not

testify about the coercive circumstances of his con-

fession because it would have amounted to a relitigation

of voluntariness, an issue the court had already decided

in the prosecution’s favor. 476 U.S. at 685-87. The

Court held that this limit on the defendant’s testimony

violated his right “to present a complete defense.” Id. at

690, quoting California v. Trombetta, 467 U.S. 479, 485 (1984).

While acknowledging the power of state trial courts

“to exclude evidence through the application of eviden-

tiary rules that themselves serve the interests of

fairness and reliability,” id., such interests could

not justify the exclusion of the defendant’s testimony

about the circumstances under which the police

secured his confession. “In the absence of any valid

state justification, exclusion of this kind of exculpatory

evidence deprives a defendant of the basic right to”

present a complete defense. Id.

No. 12-1088 51

The Crane Court reached its conclusion based on two

considerations: the importance of the evidence to the

defendant, and the lack of a legitimate state interest in

excluding the testimony. The case indicates that to deter-

mine whether a particular evidentiary exclusion is arbi-

trary or disproportionate to the interests served, the

proper approach is to weigh the defendant’s interest

in the evidence against the state’s legitimate interests in

promoting “fairness and reliability” in criminal trials. See

id.; see also Taylor v. Illinois, 484 U.S. 400, 416-18 (1988)

(using a balancing approach to determine whether ex-

clusion of evidence as discovery sanction violated

criminal defendant’s compulsory process right); Green v.

Georgia, 442 U.S. 95, 97 (1979) (per curiam) (holding

that exclusion of testimony that mitigated defendant’s

role in crime was violation of due process “[r]egardless

of whether the proffered testimony comes within

Georgia’s hearsay rule” because it “was highly relevant

to a critical issue in the punishment phase of the trial,

and substantial reasons existed to assume its reliability”)

(internal citations omitted).1 4

14

Our own precedents also support a balancing approach to

“arbitrary or disproportionate” analysis under the Compulsory

Process Clause. See, e.g., Stephens v. Miller, 13 F.3d 998, 1002

(7th Cir. 1994) (en banc) (“A criminal defendant’s right to

testify, however, is not unlimited and may bow to accommodate

other legitimate interests in the criminal trial process. . . .

Restrictions imposed by rape shield statutes, especially as they

relate to a criminal defendant’s right to testify, may not, how-

(continued...)

52 No. 12-1088

As we have explained, Diante’s testimony in this

case was critical and would have been new, excul-

patory, non-cumulative, and uncontradicted. As in

Crane, Harris’s (disavowed) confession made Diante’s

testimony “all but indispensable to any chance of

[Harris’s defense] succeeding.” See 476 U.S. at 691. Against

Harris’s substantial interest in this testimony, we must

weigh the legitimate state interests in safeguarding the

trial process against evidence that is “ ‘repetitive . . . ,

only marginally relevant’ or poses an undue risk of ‘har-

assment, prejudice, [or] confusion of the issues.’ ” Id.

(...continued)

ever, be arbitrary or disproportionate to the purposes they are

designed to serve. Rather, the state is required to evaluate

whether the interests served by the rule justify the limitation

imposed on the criminal defendant’s right to testify.”) (citations

omitted); id. at 1005 (Flaum, J., concurring) (“Whether a state

interest can justify a limitation upon a defendant’s right to

present relevant evidence depends upon the relative weights

of the interest and the evidence.”); id. at 1020 (Ripple, J., dis-

senting) (“The more critical the excluded evidence to the

defense of the accused, the more important must be the

asserted state interest.”); accord Cunningham v. Peters, 941 F.2d

535, 538-39 (7th Cir. 1991); Johnson v. Chrans, 844 F.2d 482, 484-85

(7th Cir. 1988). Other circuits are in accord. See, e.g., Ellis v.

Mullin, 326 F.3d 1122, 1128-30 (10th Cir. 2002); Wood v. Alaska,

957 F.2d 1544, 1551-54 (9th Cir. 1992). A detailed scholarly

treatment of the Compulsory Process Clause also endorses

a balancing test. See Robert N. Clinton, The Right to Present

a Defense: An Emergent Constitutional Guarantee in Criminal

Trials, 9 Ind. L. Rev. 711, 797 (1976).

No. 12-1088 53

at 689-90, quoting Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986).

Of course, competency requirements serve legitimate

and important state interests. But it is not enough that

Illinois’s competency rule serves legitimate state

interests in general. The Compulsory Process Clause

demands more particularized scrutiny of the application

of the rule in each case. In Chambers, 410 U.S. 284

(1973), the defendant was on trial for murdering a police

officer and offered the testimony of three witnesses

who heard another man admit to being the real killer.

The trial court excluded the evidence on the ground

that it was hearsay. (Mississippi did not at that time

recognize a hearsay exception for an admission against

penal interest.) The Supreme Court reversed Chambers’s

conviction, holding that the state courts unconstitu-

tionally restricted Chambers’s right to present witnesses

in his own defense. The Court acknowledged the legiti-

macy of the hearsay rule as an important rule of

evidence “designed to assure both fairness and reliability

in the ascertainment of guilt and innocence.” Id. at 302.

But “[i]n these circumstances, where constitutional

rights directly affecting the ascertainment of guilt

are implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice.” Id.

Chambers shows that “if the defendant tenders vital

evidence the judge cannot refuse to admit it without

giving a better reason [than] that it is hearsay.” Rivera v.

Director, Dep’t of Corrections, 915 F.2d 280, 281-82 (7th

Cir. 1990). In Rivera, the defendant and his co-con-

54 No. 12-1088

spirator were tried separately. The co-conspirator had

confessed and his confession contained statements

that were exculpatory to Rivera. The confession was

excluded as hearsay and Rivera was convicted. Ap-

plying Chambers, we granted habeas relief: “the exclusion

of [the co-conspirator’s] confession from Rivera’s trial

was arbitrary, because the state has offered no

plausible reason for believing that the exculpatory

portion of the confession was so unreliable as to justify

denying Rivera the right to introduce the only evidence

of his innocence that he had.” Id. at 283.

Witness competency laws advance the same truth-

seeking interests as hearsay rules. They protect the integ-

rity of the adversary process by excluding categorically

testimony that is likely to be unreliable. See, e.g.,

George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J.

575, 624-25 (1997) (“In effect, this panoply of competency

rules preempted the jury’s lie-detecting function by

declaring certain witnesses to be likely liars as a matter

of law.”). When competency rules are applied reasonably,

they may limit the right of an accused to call certain

witnesses, even when they may be important to his de-

fense. See Washington v. Texas, 388 U.S. 14, 23 n.21 (1967)

(“Nor do we deal in this case with nonarbitrary state

rules that disqualify as witnesses persons who, because

of mental infirmity or infancy, are incapable of observing

events or testifying about them.”). But the Compulsory

Process Clause does not countenance evidentiary ex-

clusions that sweep far more broadly than the interest

in the integrity of trial would justify.

No. 12-1088 55

Under the Compulsory Process Clause balancing test,

where the challenged witness is critical to the defense’s

case, the state must have some “plausible reason for

believing that” the witness would be “so unreliable as to

justify denying [the defendant] the right to introduce

the only evidence of his innocence that he had.” Rivera,

915 F.2d at 283; see also Peter Westen, The Compulsory

Process Clause, 73 Mich. L. Rev. 71, 135 (1974) (“It would

be unconstitutional, for example, to disqualify a child

from testifying for the defense on the ground that he

lacked a perfect memory, or that he lacked the ability

to express himself as well as an English professor. To

disqualify the child under such a standard would be

unconstitutional for the same reason that it was

improper to disqualify the accomplice in Washington:

It prevents the jury from hearing a material witness for

the defense whose testimony may well be reliable.”).

In this case, Diante’s competency hearing did not

reveal that he was so unreliable as a witness as to justify

depriving the defense of his uniquely exculpatory testi-

mony. Diante indicated that he knew the difference be-

tween the truth and a lie and that one may be rewarded

for telling the truth and punished for telling a lie. Illinois

courts have repeatedly found that sufficient under

Illinois law to show that a child witness understands

the duty to tell the truth.1 5 Diante also provided a fairly

15

See, e.g., People v. Williams, 891 N.E.2d 904, 932 (Ill. App. 2008)

(nine-year-old found competent to testify even though he

initially “responded in the negative to the State’s question

(continued...)

56 No. 12-1088

coherent and highly relevant account of what had hap-

pened on the day of Jaquari’s death: his brother

wrapped the cord around his own neck, his parents

had not been in the room, and Jaquari went to “sleep”

when a “bubble” formed on his mouth. This was con-

sistent with the physical evidence and with the

account he gave to investigators in the days immediately

following the death. Nothing suggested that Diante

had fabricated the account or been coached. Although a

few times it took additional questioning to draw out

Diante’s precise meaning, he was clearly not so incom-

prehensible as to have made his entire testimony inher-

ently unreliable.

15

(...continued)

of whether he knew the difference between the truth and a

lie,” because he thereafter “displayed a threshold grasp of

the difference between telling the truth and lying.”); People

v. Dempsey, 610 N.E.2d 208, 217-18 (Ill. App. 1993)

(nine-year-old sexual abuse victim found competent to testify

even though, when first questioned whether he knew the

difference between a truth and a lie, he indicated that he did

not; court found that boy’s statement that if he told a lie he

would “go to the devil” demonstrated his understanding that

it was sinful and therefore wrong to tell a lie); see also Suther-

land, 743 N.E.2d at 1013 (six-year-old shooting victim was

found competent to testify even though she stated that

“telling the truth made people ‘happy’ and lying made people

‘mad,’ ” where she demonstrated having knowledge of the

difference between telling the truth and lying by saying it

was wrong to lie and that if she lied she would get a “ ‘whop-

ping’ ”).

No. 12-1088 57

Diante was by no means a perfect witness. He said

that he believed Santa Claus and Spiderman were real

and that he had seen Jaquari “in heaven.” He also told

investigators Levy and Wilson that he had been

asleep when Jaquari got hurt, which was superficially

inconsistent with the defense’s claim that Diante

witnessed Jaquari’s death. (Nobody asked him to

explain the difference.) And he did not respond to the

court’s satisfaction to two of its questions: first, whether

he could “remember anything else that happened that

day” (he said no); and second, whether he had

“spoken before with any of the people who are here

today before you came to court.” (Diante again said

no, even though he had previously spoken to the pros-

ecutor).

But none of these responses were explored by the

court or counsel with even minimal follow-up. Had

there been any, the court should have gained the same

insights that Dr. Galatzer-Levy did: that Diante believed

Santa and Spiderman were real to the extent they

were not cartoons; that by “heaven,” Jaquari probably

meant “church”; that he did not realize that he witnessed

Jaquari die because he did not understand death; and

that he remembered many details from the day of

Jaquari’s death. Moreover, even if like many six-year-

olds Diante believed that these mythical characters

were real, such imaginings were not commingled with

his memory of the day of Jaquari’s death and would not

58 No. 12-1088

have hindered his ability to tell what he saw.1 6

The bigger issue, and the trial court’s more glaring

failure at the competency hearing, was its unrealistic

expectations for a six-year-old witness. As Illinois courts

have emphasized, “[i]t is not incumbent upon a child to

give perfect answers to questions asked during the compe-

tency determination or at trial to be deemed a

competent witness.” Williams, 891 N.E.2d at 932, quoting

Sutherland, 743 N.E.2d at 1013. A child’s belief in Santa

Claus or Spiderman does not make the child’s testimony

about his real-life experiences unreliable.1 7 Nor does

16

Even if Diante had truly believed he saw Jaquari “in heaven”

(which, as we have noted, is an improbable interpretation

of his testimony), having a spiritual vision is not a basis to

disqualify a person as incompetent to testify. See Rodney

Stark, What Americans Really Believe 48-60 (2008) (finding that

55% of Americans surveyed believed they have been

protected from harm by a guardian angel and 45% believed

they have had at least two mystical or religious experiences

such as hearing the voice of God).

17

Courts commonly find children competent to testify despite

their expressed beliefs in Santa Claus and other fictitious

characters. See, e.g., Hurt v. Commonwealth, No. 2002-SC-0209-

MR, 2003 WL 22417232, at *4 (Ky. Oct. 23, 2003) (six-year-old

believed in Santa Claus); State v. Anderson, 798 N.E.2d 1155, 1167

(Ohio App. 2003) (recognizing that a four-year-old child’s

claim that she believed in Santa Claus and that she saw

monsters did not negate her competency to testify because

very young children “generally believe in such things as

(continued...)

No. 12-1088 59

Diante’s negative response to the court’s general inquiry

if he remembered anything else from the day. Such a

broad, open-ended question in a hearing or deposition

often confuses adults who have already been testifying

about what they remember. It was unlikely to elicit

a detailed, substantive account of the day’s events from

a six-year-old, especially when posed by a stranger in

a black robe. Likewise, the trial court’s question, “Have

(...continued)

Santa Claus and the bogeyman and frequently play

make-believe”); Humphrey v. State, 1999 WL 46541, at *3 (Alaska

App. Feb. 3, 1999) (six-year-old believed in Santa Claus and

the tooth fairy); State v. Miller, 2003 WL 22077677, at *5 (Wash.

App. Sept. 9, 2003) (“Mr. Miller first contends [six-year-old]

V.S. was not competent to testify because, when asked

whether dinosaurs were real or cartoon, V.S. said that they

were real. It is difficult to see how this response demonstrates

any mental incapacity when fossil evidence establishes the

previous existence of dinosaurs.”); Carmona v. State,

No. 05-96-01789-CR, 05-96-01790-CR, 1998 WL 304700, *3-4 (Tex.

App. 1998) (five-year-old who believed his stuffed animal

was a person and that cartoons were real). We have found

only one case in which a court found a child was incompetent

in part because she could not say that cartoon characters

were make-believe. See B.B. v. Commonwealth, 226 S.W.3d 47

(Ky. 2007). In that case, the child was four at the time of the

hearing, she “had no concept of a lie, nor the consequences

of lying,” and “when asked directly if she understood ‘what

telling the truth means’ or ‘what being honest is and telling

exactly what happens’ means, C.Y. shook her head ‘no’.” Id.

at 49.

60 No. 12-1088

you spoken before with any of the people who are

here today before you came to court?” was both com-

pound and ambiguous enough that many adults might

have trouble answering it. Was the judge asking

whether Diante had ever spoken before with anyone

present at court that day? Or whether he had spoken

that day with anyone present before coming to court?

And how many people were in the courtroom? The

answer says nothing probative about Diante’s reliability

as a witness. There was no follow-up to make sure he

even understood the question.

Even if some other aspects of Diante’s testimony

might reasonably have caused the finder-of-fact to

question the reliability of his account, sorting out

truthful from untruthful testimony is the essence of the

jury’s function in our criminal justice system. See

Scheffer, 523 U.S. at 313 (“A fundamental premise of our

criminal trial system is that the jury is the lie detector.

Determining the weight and credibility of witness testi-

mony, therefore, has long been held to be the ‘part of

every case [that] belongs to the jury, who are presumed

to be fitted for it by their natural intelligence and their

practical knowledge of men and the ways of men.’ ”)

(internal citation and some quotation marks omitted),

quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891).

Had Diante testified, the jury would have heard his

account that he saw Jaquari wrap the cord around his

own neck — the most valuable piece of evidence for

Harris’s defense. His testimony would also have been

subjected to cross-examination, and the able prosecutors

in this case no doubt would have tried to impeach him

No. 12-1088 61

on some of the same lines of questioning they raised at

the competency hearing. That is how the adversary

process is designed to work.

By finding Diante to be an incompetent witness, the

trial court short-circuited that process and excluded

Harris’s best evidence of her innocence. It reached that

conclusion in part by erroneously placing the burden of

proof on the defense, and in effect presuming that

Diante was incompetent. It also relied on the facts

that Diante expressed age-appropriate beliefs in

mythical or fictional characters, said he saw his brother

“in heaven,” and, in his response to a broad and

confusing question from the bench, did not admit to

having spoken with the prosecutor at some point

before the hearing. These considerations did not

reliably indicate that Diante’s testimony at trial was

likely to be so unreliable as to justify eliminating it com-

pletely from Harris’s defense. The importance of this

evidence substantially outweighed the danger that it

would have injected inherently unreliable evidence

into the trial.

In so holding, we emphasize that we do not decide

whether the trial court’s incompetency determination

was erroneous as a matter of Illinois law. Obviously,

“habeas corpus relief does not lie for errors of state

law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citations

omitted), quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

The Illinois Appellate Court determined that the trial

court, despite its burden of proof error, did not abuse

its discretion in applying Illinois’s witness competency

statute, and we do not disturb that conclusion. As the

62 No. 12-1088

Supreme Court cautioned long ago, the determination

of competency “rests primarily with the trial judge, who

sees the proposed witness, notices his manner, his ap-

parent possession or lack of intelligence, and may resort

to any examination which will tend to disclose his

capacity and intelligence, as well as his understanding

of the obligations of an oath.” Wheeler v. United States,

159 U.S. 523, 524-25 (1895). Harris presented and we

have considered a different question: whether in this

case the damage done to Harris’s defense by dis-

qualifying Diante as a witness was disproportionate to

the state’s interest in guarding against the admission

of unreliable testimony. That question is a Sixth Amend-

ment question, and no state court addressed it. Ans-

wering it involves a familiar analytic tool of the law

of evidence — balancing the probative value of a witness’s

testimony against the risk of “confusing the issues” or

“misleading the jury.” See Fed. R. Evid. 403. But our

approach does not constitutionalize the law of evidence.

On the contrary, by requiring state courts to consider

the effect of an evidentiary exclusion on the right of

the accused to present exculpatory testimony, we

ensure that the rules of evidence will be applied in

accord with the demands of the federal Constitution.

That is a central function of the federal courts and of

the habeas corpus writ itself.

If the Compulsory Process Clause is to be more than

a “dead letter,” see Burr, 25 F. Cas. at 33, it demands

that courts recognize that the exclusion of defense

evidence can have constitutional consequences beyond

the rules of evidence. Here, state courts overlooked the

Sixth Amendment significance of Diante’s testimony. By

No. 12-1088 63

disqualifying Diante from taking the stand, the trial court

deprived Harris of evidence that was favorable and

material to her defense, and on the evidence before it, the

exclusion was “arbitrary or disproportionate” to the

interests served by the competency rule. The exclusion

violated Harris’s right to present a complete defense

under the Sixth and Fourteenth Amendments of the

U.S. Constitution.

IV. Ineffective Assistance of Counsel Claim

The Sixth Amendment also provides that the “accused

shall enjoy the right to . . . have the Assistance of

Counsel for his defense.” To demonstrate that the right

to counsel was violated by ineffective assistance, a

criminal defendant must meet the familiar two-prong

standard set forth in the leading case, Strickland v. Washing-

ton, 466 U.S. 668 (1984). First, she must show that her

“counsel’s performance was deficient” because it “fell

below an objective standard of reasonableness.” Id. at 687-

88. Second, she must show that “the deficient per-

formance prejudiced the defense,” which means that

“there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. Harris con-

tends that her trial counsel was ineffective cumula-

tively throughout trial and for three specific deficien-

cies: (1) his performance at Diante’s competency

hearing; (2) his withdrawal of a motion to quash

Harris’s arrest; and (3) his failure to call expert witnesses

on child asphyxiation and false confessions.

64 No. 12-1088

Under AEDPA, “the bar for establishing that a

state court’s application of the Strickland standard was

‘unreasonable’ is a high one, and only a clear error in

applying Strickland will support a writ of habeas corpus.”

Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009). “When

§ 2254(d) applies, the question is not whether counsel’s

actions were reasonable. The question is whether there

is any reasonable argument that counsel satisfied Strick-

land’s deferential standard.” Harrington v. Richter, 131 S. Ct.

770, 788 (2011). However, “if a state court does not

reach either the issue of performance or prejudice on the

merits, then federal review [of that prong] . . . is de novo.”

Sussman v. Jenkins, 636 F.3d 329, 350 (7th Cir. 2011) (some

internal quotation marks omitted), quoting Toliver v.

McCaughtry, 539 F.3d 766, 775 (7th Cir. 2008).

Because the Illinois Appellate Court did not reach

the Strickland performance prong, we consider that issue

de novo and conclude that defense counsel’s performance

at the crucial competency hearing was constitutionally

deficient. Applying AEDPA deference to the prejudice

prong, we conclude that the court unreasonably misap-

plied Strickland. If counsel had provided effective assis-

tance at the competency hearing, it is reasonably likely

that Diante would have been allowed to testify. His

testimony was pivotal to Harris’s case, and there is at

least a reasonable probability that it would have made

a difference in the outcome of the trial.1 8

18

Because we find that defense counsel’s performance at the

competency hearing did not meet the minimum standards

(continued...)

No. 12-1088 65

A. Performance Prong

To satisfy Strickland’s performance prong, the

defendant must identify “acts or omissions of counsel

that could not be the result of professional judgment.”

U.S. ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th

Cir. 1988), citing Strickland, 466 U.S. at 690. “The question

is whether an attorney’s representation amounted to

incompetence under ‘prevailing professional norms,’ not

whether it deviated from best practices or most

common custom.” Richter, 131 S. Ct. at 788, quoting

Strickland, 466 U.S. at 689. A reviewing court must seek

to “evaluate the conduct from counsel’s perspective at

the time.” Strickland, 466 U.S. at 689. We “must indulge

a strong presumption that counsel’s conduct falls

within a wide range of reasonable professional assis-

tance,” id., and “strategic choices made after thor-

ough investigation of law and facts relevant to

plausible options are virtually unchallengeable.” Id. at

690. The Illinois Appellate Court did not decide

whether defense counsel’s performance was deficient

under Strickland. See Harris, 904 N.E.2d at 1097-98. Our

review of Harris’s claim under the performance prong

is therefore de novo.

(...continued)

of professional competency imposed by the Sixth Amendment,

and that there was a reasonable probability that these

errors altered the outcome of Harris’s trial, we do not

address the other allegations of ineffectiveness.

66 No. 12-1088

We see three serious mistakes in trial counsel’s perfor-

mance at the competency hearing.1 9 First, and most

glaring, counsel did nothing to prepare Diante for his

testimony. Second, counsel failed to secure the presence

of Levy, the investigator for Child and Family Services

who interviewed Diante the day of Jaquari’s death.

Third, counsel failed to correct the trial court’s misplace-

ment of the burden of proof on the defense at the compe-

tency hearing.

1. Preparation

Counsel admitted to the trial court that he had seen

Diante on just one prior occasion (when he interviewed

Dancy), had only spoken with the child in court just

before the hearing, and that he “didn’t ask [Diante] any

questions” before he took the stand. Dkt. No. 1-17 at 93.

According to the trial court, on the day Diante testified,

defense counsel had yet to “determine whether they

even wanted to call the witness.” S.A. 56. These revela-

tions are disturbing. The defense theory was that

Jaquari’s death was accidental. Diante was the only

witness who could testify directly to that theory. The

substance of Diante’s testimony was not only exculpatory;

no other witness contradicted it, and no other witness

could replicate it. In terms of its strategic importance to

19

Both parties assume, and we agree, that the competency

hearing was a “critical stage” of the proceedings against

petitioner during which her right to counsel remained in

full force. See United States v. Wade, 388 U.S. 218, 224-25 (1967).

No. 12-1088 67

the defense, Diante’s competency hearing was the

whole defense.

Preparation is important with witnesses of any age,

but it is critical with child witnesses, who are often

nervous in unfamiliar settings and among strangers.2 0

20

See Nancy Walker Perry & Lawrence S. Wrightsman, The Child

Witness: Legal Issues and Dilemmas 252-55 (1991); William Wesley

Patton, Viewing Child Witnesses through a Child and Adolescent

Psychiatric Lens: How Attorneys’ Ethical Duties Exacerbate Chil-

dren’s Psychopathology, 16 Widener L. Rev. 369, 370 n.4 (2010),

citing Andrea N. Welder, Sexual Abuse Victimization and the

Child Witness in Canada: Legal, Ethical, and Professional Issues for

Psychologists, 41 Canadian Psychol. 160, 164-65 (2000); Myrna S.

Raeder, Enhancing the Legal Profession’s Response to Victims of

Child Abuse, 24 Crim. Just. 12, 43 (Spring 2009); Tom Harbinson,

When the Child “Freezes” in Court, Part One: Prevention, Reasonable

Efforts 2, Nat’l Dist. Attorneys Ass’n/Nat’l Ctr. for Prosecution of

Child Abuse (2005), available at http://www.mcaa-mn.org/

docs/2005/APRIReason — Part161005.pdf; Helen L. Westcott &

Graham M. Davies, Children’s Welfare in the Courtroom: Prepara-

tion and Protection of the Child Witness, 7 Child. & Soc’y 388, 389-

91 (1993). In his evaluation of Diante, Dr. Galatzer-Levy empha-

sized the importance of questioning children in a manner

consistent with their cognitive capacities, and he provided

some background on child development and interview tech-

niques. For example, “most children of Diante’s age cannot

answer an abstract question regarding the difference

between the truth and a lie” but can have a “complete functional

understanding of the concepts.” S.A. 137-38. Likewise, while

“[a]dults tend to conceptualize things that they themselves

(continued...)

68 No. 12-1088

Interviewing Diante in advance would have enabled

defense counsel to familiarize Diante with the types of

questions he would be asked, to anticipate the State’s

approach in challenging competency, and to develop a

rapport with an understandably nervous and reticent

child. In light of both the delicacy of child witnesses

in general and the importance of this witness’s testi-

mony to the defense in particular, trial counsel’s failure

even to speak with Diante about his testimony is inex-

plicable.

The Supreme Court has said that “the Strickland

test provides sufficient guidance for resolving virtually

all ineffective-assistance-of-counsel claims.” Williams v.

Taylor, 529 U.S. 362, 391 (2000). In Strickland itself, the

Supreme Court made clear that “counsel has a duty

to make reasonable investigations or to make a

reasonable decision that makes particular investiga-

tions unnecessary.” 466 U.S. at 691. A “particular

decision not to investigate must be directly assessed

for reasonableness in all the circumstances,” which

depend on the information the attorney had at his dis-

posal. Id. “For example, when the facts that support

a certain potential line of defense are generally known

to counsel because of what the defendant has said,

the need for further investigation may be considerably

20

(...continued)

witness as ‘real,’ referring to a highly abstract concept of truly

existing,” “[c]hildren of Diante’s age . . . typically do not

employ such abstractions in their thinking.” S.A. 139.

No. 12-1088 69

diminished or eliminated altogether.” Id. In this case,

however, Harris’s counsel clearly did not have all the

information needed to question Diante effectively at

his competency hearing. And what information counsel

did have — above all, the facts that Diante was young

and critical to the defense — would only have indicated

to a reasonably diligent defense attorney the need

for careful investigation and preparation.

Since Strickland, the Supreme Court has several times

found that an attorney’s failure to prepare or investigate

witnesses or evidence was deficient performance. See,

e.g., Porter v. McCollum, 130 S. Ct. 447, 452-53 (2009)

(per curiam); Rompilla v. Beard, 545 U.S. 374, 385 (2005);

Wiggins v. Smith, 539 U.S. 510, 523-25 (2003). Here, too,

counsel’s failure to interview Diante overlooked obvious

information — his age, importance as a witness, and the

statements he made to Levy and Wilson — that urgently

conveyed the need for more “thorough investigation.”

Porter, 130 S. Ct. at 452.

This court and other circuits have found that an at-

torney’s failure to interview prospective witnesses

can render his performance deficient under Strickland.

See, e.g., Davis v. Lambert, 388 F.3d 1052, 1063-64 (7th

Cir. 2004) (“As Davis relied exclusively on a theory of

self-defense at trial, his counsel’s failure to interview

Perry, the only other eye-witness to the altercation, is

inexplicable.”); Washington v. Smith, 219 F.3d 620, 632

(7th Cir. 2000) (“failure to try to ascertain what ex-

culpatory evidence ‘new’ witnesses might have [was a]

flagrant example[ ] of ineffective assistance”); Sowell

70 No. 12-1088

v. Anderson, 663 F.3d 783, 790 (6th Cir. 2011) (granting

habeas relief and holding that “[c]ounsel’s failure to

interview Sowell’s family was inconsistent with their

obligation to conduct a thorough sentencing-phase in-

vestigation”) (citations omitted); Anderson v. Johnson,

338 F.3d 382, 392 (5th Cir. 2003) (granting habeas relief

and holding that, due to “the fact that there were only

two adult eyewitnesses to the crime, it is evident that

‘a reasonable lawyer would have made some effort to

investigate the eyewitnesses’ testimony’ ”), quoting

Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994).

In Stanley v. Bartley, 465 F.3d 810 (7th Cir. 2006), defense

counsel had not interviewed any prospective witnesses

before trial. His “trial strategy . . . was to listen to the

witnesses’ direct testimony and cross-examine them

regarding any discrepancies between that testimony

and their pretrial statements that were harmful to his

client.” Id. at 812. The lawyer had “prepared for the trial

by reading the statements that prospective witnesses had

given the police” but “did not interview any of them.”

Id. Had he done so, it would have “enabled a damaging

cross-examination” of a witness who himself “may

have been the murderer” and allowed counsel to

impeach as unreliable another witness who testified that

the defendant had confessed to her. Id. We said that

the failure to interview witnesses “was a shocking derelic-

tion of professional duty.” Id. at 813.

In this case, too, trial counsel’s failure to conduct

a careful interview with Diante fell below the minimum

standards of professional reasonableness required

No. 12-1088 71

under Strickland. Any reasonably diligent attorney

would have understood the special challenges in ques-

tioning witnesses of Diante’s age, as well as the

critical importance of his testimony.

We recognize that, in preparing for the testimony of

child witnesses, attorneys should be especially careful to

avoid suggesting answers or otherwise coaching the

witness. See Maryland v. Craig, 497 U.S. 836, 868 (1990)

(Scalia, J., dissenting); John R. Christiansen, The Testimony

of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial

Interviews, 62 Wash. L. Rev. 705, 709-11 (1987). This does

not mean, however, that lawyers must give up pretrial

interviews altogether to avoid being accused of coaching

child witnesses. A variety of procedural safeguards

are available to ensure the integrity of children’s

testimony, such as having a child-witness examiner

conduct or observe the interview, avoiding the use of

leading questions, and of course videotaping the inter-

view. See Christiansen, supra, at 713-14. If the attorney

is concerned about being accused of coaching his

child witness, the solution is to take these precautionary

steps, not to forego preparation entirely.

Yet that is what Harris’s attorney did here, and not

because he made a tactical decision that investigative

efforts would be counter-productive. Cf. Bobby v. Van

Hook, 130 S. Ct. 13, 18-19 (2009) (counsel gathered sub-

stantial amount of information and then made

reasonable decision not to pursue additional sources).

Rather, at this important stage of trial, his unreadiness

was all. See Williams v. Lemmon, 557 F.3d 534, 541 (7th

72 No. 12-1088

Cir. 2009) (“[In Stanley, 465 F.3d 810 (7th Cir. 2006),] Stan-

ley’s lawyer did not prepare for trial; he just showed

up and winged it. That’s ineffective assistance, when

information in counsel’s possession suggested that

some potential witnesses had exculpatory information.”).

In fact, until just before Diante took the stand, counsel

had not even made up his mind whether he wanted

this pivotal witness to testify. Failing to interview

Diante was not based on “reasoned strategic judgment.”

See Wiggins, 539 U.S. at 526.

2. Investigator Levy

Second, trial counsel’s performance was deficient for

failing to secure the presence of Ale Levy, the Child

Advocacy Center investigator who had spoken with

Diante the day after his brother’s death. Counsel’s failure

to discover and present exculpatory evidence that is

reasonably available can constitute deficient perfor-

mance. See, e.g., Wiggins, 539 U.S. 523-29. And we have

found Strickland’s performance prong met by a defense

attorney’s “inexplicable” refusal to investigate and call

the only sober eyewitness to the altercation on which

the defendant’s murder conviction was based, given

“the obvious importance of this potential testimony to

[defendant’s] self-defense argument.” Davis v. Lambert,

388 F.3d 1052, 1064, 1063 (7th Cir. 2004). Here, Levy’s

testimony would have countered that of Karen Wilson,

another state investigator who interviewed Diante

and testified at the hearing that he had trouble distin-

guishing fantasy from reality. Levy would have demon-

No. 12-1088 73

strated that Diante’s testimony was consistent with

what he had told her (that Jaquari asphyxiated himself),

and described Diante’s satisfactory responses to her

preliminary “qualifier” questions that gauged his

memory and communication skills. Defense counsel

subpoenaed Levy but conceded he did “nothing” to

secure her actual presence.2 1

When Levy did not appear, counsel also did not

explain to the trial court how critical she was, except to

say that she had interviewed Diante. The trial court stated,

“All right. . . . Diante may have been interviewed by . . .

next-door neighbors or relatives or you. What I’m won-

dering is, what relevance is it to my determination at

this point in time as to the witness’s competency that

other people have talked to him at other points in

time?” Instead of explaining that Levy would show that

Diante’s account of Jaquari’s death had remained con-

sistent from day one, that he was capable of articulating

21

In addition, even if Diante had nevertheless been found

incompetent, his statements to Levy could have been admitted

through Levy. Although such testimony would other-

wise be hearsay, Illinois exempts statements made by a

declarant who is unavailable where the statement concerns the

history — explicitly including the “death”— of “another

person, if the declarant was related to the other by blood,

adoption, or marriage.” Ill. Evid. R. 804(b)(4)(B). “A child

witness is considered unavailable if the child is . . . declared

incompetent because she is incapable of expressing herself so

as to be understood concerning the matter.” People v. Learn,

919 N.E.2d 1042, 1049 (Ill. App. 2009).

74 No. 12-1088

that account coherently when questioned by someone

trained to question children, and that she would

counter the testimony of Wilson, counsel withdrew his

motion to call her and said he had nothing further. This

was another major oversight that counsel could have

avoided with modest efforts.

3. Incorrect Burden of Proof

Finally, defense counsel was deficient in not correcting

the trial court when it misallocated the burden of proof

during the competency hearing. The Supreme Court

determined in Kimmelman v. Morrison, 477 U.S. 365, 385

(1986), that Strickland’s performance prong was satis-

fied where counsel failed to file a suppression motion

due to his “startling ignorance” of discovery rules. When

an attorney takes or forgoes some action at trial due

to ignorance of the law, that mistake can amount to con-

stitutionally deficient performance. See, e.g., Wrinkles

v. Buss, 537 F.3d 804, 814-15 (7th Cir. 2008) (holding

that counsel’s ignorance of relevant law made per-

formance objectively deficient under Strickland); Barrow v.

Uchtman, 398 F.3d 597, 605 (7th Cir. 2005) (same); Dixon

v. Snyder, 266 F.3d 693, 703 (7th Cir. 2001) (same); see

also Medina v. Diguglielmo, 461 F.3d 417, 428-29 (3d Cir.

2006) (trial counsel’s failure to object to competency

of child witness, as required by Pennsylvania law, fell

below an objective standard of reasonableness).

In this case, the trial court explicitly placed the

burden of proof on Harris to establish that Diante was

No. 12-1088 75

competent to testify. Even the trial judge himself agreed

later that this was an error. There is no tactical explana-

tion for the failure to correct the judge’s mistake — except

that counsel too was unaware of Illinois law’s presump-

tion of competency. In the competency hearing,

counsel even restated and compounded the trial court’s

error by asserting “that we’ve met our burden.” Dkt. No.

1-17 at 100. By embracing without objection the

misplaced burden to prove Diante was a competent

witness, counsel made his job harder. A “reasonably

competent attorney patently is required to know the

state of the applicable law.” Medina, 461 F.3d at 428,

quoting Everett v. Beard, 290 F.3d 500, 509 (3d Cir. 2002),

abrogated on other grounds by Priester v. Vaughn, 382

F.3d 394 (3d Cir. 2004). In this regard, as well, counsel’s

performance at the competency hearing was deficient.

We conclude that the performance of Harris’s trial

counsel was unconstitutionally deficient in failing (1) to

interview Diante prior to his testimony; (2) to secure

the presence of Ale Levy; and (3) to correct the court’s

legal error in placing the burden on the defense. We

now turn to whether Harris was prejudiced by these

deficiencies.

B. Prejudice Prong

1. Legal Standard

To show the required prejudice, the defendant must

show “that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

76 No. 12-1088

proceeding would have been different.” Strickland, 466

U.S. at 694. This does not mean that the defendant

must show that “counsel’s deficient conduct more

likely than not altered the outcome in the case.” Id. at

693. Rather, a “reasonable probability is a probability

sufficient to undermine confidence in the outcome,” id. at

694, which in turn means a “substantial, not just con-

ceivable” likelihood of a different result. Harrington

v. Richter, 131 S. Ct. 770, 792 (2011); see also Canaan v.

McBride, 395 F.3d 376, 386 (7th Cir. 2005) (“Even if the

odds that the defendant would have been acquitted had

he received effective representation appear to be less

than fifty percent, prejudice has been established so long

as the chances of acquittal are better than negligible.”),

quoting U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 246

(7th Cir. 2003). Making this probability determination

requires consideration of the “totality of the evidence

before the judge or jury,” Strickland, 466 U.S. at 695, and a

“verdict or conclusion only weakly supported by the

record is more likely to have been affected by errors

than one with overwhelming record support,” id. at 696.

The Supreme Court has reaffirmed this framework re-

peatedly. See, e.g., Richter, 131 S. Ct. at 787-88; Rompilla,

545 U.S. at 380-81; Wiggins, 539 U.S. at 521.

The Illinois Appellate Court determined that Harris

was not prejudiced by counsel’s performance at

Diante’s competency hearing, so AEDPA requires us to

ask whether the state court reached a decision that

was either “contrary to, or involved an unreasonable ap-

plication of, clearly established Federal law, as deter-

mined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A

No. 12-1088 77

state court’s decision is “contrary to” clearly established

federal law where it is “substantially different from

the relevant precedent of [the Supreme] Court.” Williams

v. Taylor, 529 U.S. 362, 413 (2000). An “unreasonable

application” occurs when a state court “ ‘identifies the

correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that

principle to the facts’ of petitioner’s case.” Williams,

529 U.S. at 413.

2. Application

Determining whether Harris was prejudiced by her

counsel’s errors at the competency hearing actually

involves two separate inquiries: first, whether the ad-

mission of Diante’s testimony at trial would have had

a reasonable probability of changing the jury’s verdict;

and second, whether the errors had a reasonable prob-

ability of influencing the outcome of the competency

hearing itself.

a. Effect on the Verdict

We have already answered the first question by conclud-

ing (though under de novo review) that the exclusion

of Diante’s testimony was material for purposes of

the Compulsory Process Clause. See ante, section III.B.1, at

36-47. When a defendant is deprived of favorable evi-

dence, the same “reasonable probability” standard ap-

plies to determining materiality under Brady and the

Compulsory Process Clause, and to determining

78 No. 12-1088

whether the accused was prejudiced for the purposes

of Strickland. See Strickland, 466 U.S. at 694 (“Accord-

ingly, the appropriate test for prejudice finds its

roots in the test for materiality of exculpatory informa-

tion not disclosed to the defense by the prosecution,

and in the test for materiality of testimony made unavail-

able to the defense by Government deportation of a

witness.”) (citations omitted); United States v. Valenzuela-

Bernal, 458 U.S. 858, 867-68 (1982) (noting existence of

“materiality requirement” in “what might loosely be

called the area of constitutionally guaranteed access to

evidence”). The relevant standard is whether, if Diante

had testified, there was a “reasonable probability” that

the result of Harris’s trial would have been different. We

have already found that the exclusion of Diante’s testi-

mony was material to Harris’s defense, analogizing to

the Brady line of cases. Because of the equivalency

between Brady materiality and Strickland prejudice, the

same conclusion must apply to defense testimony that

is absent from trial due to deficient performance of

defense counsel.

Our review on the Strickland prejudice issue, however,

must be deferential under AEDPA. To grant habeas

relief on Harris’s Strickland claim, we must conclude

not just that there was a reasonable probability that

Diante’s testimony would have changed the outcome

of trial, but that the state court’s conclusion to the

contrary was an unreasonable application of clearly

established law.

For two reasons, we conclude that the state court’s

application of Strickland’s prejudice prong was not just

No. 12-1088 79

wrong but unreasonable. First, the court failed to analo-

gize to the Supreme Court’s Brady precedents, which

show unmistakably that the suppression of exculpatory

evidence from or relating to the case’s sole eyewitness

is reasonably probable to change the outcome of trial.

See Smith v. Cain, 132 S. Ct. 627, 630-31 (2012); Kyles

v. Whitley, 514 U.S. 419, 441-45 (1995); United States v.

Agurs, 427 U.S. 97, 112-13 n.21 (1976). A state court deci-

sion “involves an unreasonable application of this

Court’s precedent if the state court . . . unreasonably

refuses to extend [a legal principle from Supreme Court

precedent] to a new context where it should apply.”

Williams v. Taylor, 529 U.S. 361, 407 (2000). The Strickland

prejudice and Brady materiality standards are identical.

Harris’s ineffective assistance claim is an obvious

context to which the principle illustrated by Smith,

Kyles, and Agurs should apply. See Strickland, 466 U.S.

at 694.

Second, the Supreme Court’s Strickland precedents

also show that a defense counsel’s failure to secure sig-

nificant exculpatory or mitigating evidence can be prej-

udicial to the defense. See Porter v. McCollum, 130 S. Ct.

447, 453-56 (2009) (per curiam); Rompilla v. Beard, 545

U.S. 374, 390-93 (2005); Wiggins v. Smith, 539 U.S. 510, 534-

38 (2003). Our own precedents also demonstrate that

Strickland’s prejudice prong is met when defense

counsel’s deficient performance causes critical ex-

culpatory testimony to be absent from trial. See, e.g.,

Toliver v. McCaughtry, 539 F.3d 766, 776-78 (7th Cir. 2008)

(holding that trial counsel’s failure to call two witnesses

who would have offered testimony tending to show

80 No. 12-1088

defendant “had no intention of aiding and abetting in

[accomplice’s] murder” and “would have enhanced

significantly the chances of the jury’s accepting [the defen-

dant’s] characterization of the facts,” prejudiced his

defense, and the state court’s determination to the

contrary was “not only incorrect but unreasonable”);

Washington v. Smith, 219 F.3d 620, 634 (7th Cir. 2000)

(granting habeas writ and finding that petitioner was

prejudiced by counsel’s failure to produce alibi witnesses

for trial because, even though another alibi witness did

testify for the defense, the additional and more credible

witnesses “would have added a great deal of substance

and credibility” to petitioner’s alibi). So, too, do a number

of cases in other circuits. See, e.g., Stewart v. Wolfenbarger,

468 F.3d 338, 360-61 (6th Cir. 2006) (granting writ on the

grounds that the petitioner was prejudiced by counsel’s

failure to secure the testimony of alibi witnesses and to

call a witness who would have testified that a major

prosecution witness lied in testifying that petitioner

had threatened the victim before she was killed); Clinkscale

v. Carter, 375 F.3d 430, 445 (6th Cir. 2004) (granting writ

and holding that petitioner was prejudiced by counsel’s

failure to secure testimony of alibi witnesses); Anderson

v. Johnson, 338 F.3d 382, 393-94 (5th Cir. 2003) (granting

writ and finding that counsel’s failure to call the only

known exculpatory eyewitness satisfied Strickland’s

prejudice requirement).

These cases all fit with the lesson of the Supreme

Court’s Brady jurisprudence: when a defendant is de-

prived of the exculpatory, non-cumulative testimony of

one of the case’s few eyewitnesses, or the only eye-

No. 12-1088 81

witness, there is a reasonable probability the result

would have been different.2 2

22

In a number of similar cases, circuit courts have strongly

suggested that the prejudice prong was met and remanded for

an evidentiary hearing to determine the precise nature of

the omitted testimony. See, e.g., United States v. Moore, 651 F.3d

30, 87-88 (D.C. Cir. 2011) (per curiam) (concluding that

habeas petitioner “has made a ‘colorable claim’ that his

counsel’s decision not to call” the shooting’s only eyewitness,

who identified someone else as the assailant “was constitu-

tionally deficient and that he was prejudiced by his counsel’s

conduct,” but remanding for an evidentiary hearing because

of “lack of clarity” as to “the precise nature of [the witness’s]

testimony”), cert. denied in part and granted in part on

other grounds sub nom. Smith v. United States, 132 S. Ct. 2772

(2012); Harrison v. Quarterman, 496 F.3d 419, 427-28 (5th Cir.

2007) (stating that “counsel prejudices his client’s defense

when counsel fails to call a witness who is central to

establishing the defense’s theory-of-the-case,” and concluding

that “in this case, there exists a ‘reasonable probability’ that,

but for counsel’s errors, the jury might have reached a

different verdict,” but remanding for evidentiary hearing to

determine what witness’s testimony would have been

because “the only evidence of what [witness] would have

testified to comes from” petitioner and witness “has not

provided an affidavit from [witness] indicating that [he]

would have been willing to testify”); Davis v. Lambert, 388

F.3d 1052, 1064-65 (7th Cir. 2004) (holding that counsel was

ineffective in failing to interview only sober eyewitness to

death of victim, stating that if his testimony would have

supported theory of self-defense advanced at trial by the

(continued...)

82 No. 12-1088

To the extent the Illinois Appellate Court concluded

that the failure to secure Diante’s testimony at trial did

not prejudice Harris’s defense, it was an unreasonable

application of Strickland and its progeny. If, as a result

of ineffective assistance of counsel, Harris was deprived

of Diante’s testimony, the errors prejudiced her defense.

b. Effect on the Competency Decision

Whether it is reasonably likely that counsel’s errors

altered the result of the competency hearing is a

separate question. The Illinois Appellate Court deter-

22

(...continued)

petitioner, “there is a reasonable probability that a court could

find” that he acted in self-defense, and remanding for eviden-

tiary hearing to determine what the anticipated testimony

of that witness would have been).

Here, we have a clear idea of what Diante’s testimony would

have been because he testified to the same matters at the

competency hearing at the time of trial. This sharply distin-

guishes this case from Harrison, Moore, and Davis and makes

remand for an evidentiary hearing unnecessary. See Schriro v.

Landrigan, 550 U.S. 465, 474 (2007) (“an evidentiary hearing is

not required on issues that can be resolved by reference to

the state court record”), quoting Totten v. Merkle, 137 F.3d

1172, 1176 (9th Cir. 1998); see also Siverson v. O’Leary, 764 F.2d

1208, 1218 (7th Cir. 1985) (declining to remand for evidentiary

hearing to consider prejudice prong unaddressed by district

court where record was sufficient for review).

No. 12-1088 83

mined that they did not, and we may therefore grant

the writ only if this decision was also an unreasonable

application of Supreme Court precedent. The appellate

court gave two reasons: first, “the record reflects that

defense counsel as well as the prosecutor spoke with

Diante before he testified and counsel makes no

showing that a different result would have obtained

had there been more extensive preparation,” and second,

“the trial judge noted in denying defendant’s

posttrial motions[ ] [that] his ruling would have been

the same had the burden been properly placed” on the

State and that Levy’s testimony “would [not] have

changed his opinion concerning Diante’s competency.”

Harris, 904 N.E.2d at 1098. There are two problems

with this analysis.

First, it weighs in isolation the effect of each aspect of

counsel’s deficient performance on the outcome of the

competency hearing, rather than, as the Supreme Court

requires, assessing the “totality of the omitted evidence.”

Williams, 529 U.S. at 397. To determine whether a dif-

ferent outcome is reasonably probable, the court must

“evaluate the totality of the available . . . evidence — both

that adduced at trial” and the additional available

evidence that adequate counsel would have procured.”

Id. The “predictive judgment” thus does not depend “on

the notion that a single item of omitted evidence . . .

would require a new hearing.” Id.; see also Strickland,

466 U.S. at 695 (“In making this determination, a court

hearing an ineffectiveness claim must consider the

totality of the evidence before the judge or jury.”); Washing-

ton v. Smith, 219 F.3d 620, 634-35 (7th Cir. 2000) (“Evaluated

84 No. 12-1088

individually, these errors may or may not have been

prejudicial to Washington, but we must assess ‘the

totality of the omitted evidence’ under Strickland rather

than the individual errors. Considering the ‘totality of

the evidence before the . . . jury,’ [trial counsel’s] unpro-

fessional errors were prejudicial to Washington.”) (cita-

tion omitted). The question is whether counsel’s en-

tire performance at the hearing prejudiced Harris.

By analyzing each deficiency in isolation, the appellate

court clearly misapplied the Strickland prejudice prong.

Second, the appellate court improperly relied on the

trial judge’s own post hoc rationalization (during the

proceedings on Harris’s motion for a new trial) that a

more diligent performance would not have changed

his mind. Under Strickland, the assessment of prejudice

is an objective inquiry that “should not depend on the

idiosyncracies of the particular decisionmaker,” which

“are irrelevant to the prejudice inquiry.” 466 U.S. at 695;

see also Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir.

2007) (“we cannot accept as conclusive the judge’s state-

ment that the new evidence would not have made

any difference to the outcome of the case”); Hall v. Washing-

ton, 106 F.3d 742, 752 (7th Cir. 1997) (trial judge’s asser-

tion in a post-conviction proceeding that peti-

tioner’s “additional evidence would not have changed

his mind . . . cannot, however, be conclusive”). By

focusing on how the trial judge personally would have

ruled in the competency hearing if Harris’s counsel had

performed adequately, the Illinois Appellate Court

allowed subjective analysis to creep into the prejudice

inquiry. The court’s reasoning was therefore a misap-

No. 12-1088 85

plication of Strickland, under which courts must

consider the effect the evidence would have had on an

unspecified, objectively reasonable decision-maker — not

its effect on one particular judge.

The appellate court’s prejudice determination was

unreasonable insofar as it failed to apply the correct

framework. Applying that correct framework, the com-

bined effect of counsel’s errors was clearly prejudicial.

At a minimum, the application of the correct burden

of proof would, as a matter of law, have precluded

finding Diante incompetent under the second prong of

the competency statute, his capacity to understand a

witness’s duty to tell the truth. The trial court said in

his ruling at trial that he did not “find any questions at

all that were posed to the witness with regard to his

understanding of any concept of a duty to tell the

truth when presented in a courtroom,” and that the

“witness was never asked whether he would promise to

tell the truth and what that might mean to him here in

this proceeding.” S.A. 87, 88 (emphasis added). The trial

court ruled that Diante was incompetent under the

second prong because he erroneously believed that the

proponent of the witness bore the burden to establish

competency. Had Harris’s counsel called the court’s

attention to this error, the absence of any testimony as

to the second prong would as a matter of law have fore-

closed finding Diante incompetent on that basis.

Diante’s statement that he knew the difference between

lying and truth-telling and that he could be punished

for the one and rewarded for the other was enough to

find him competent on the second prong.

86 No. 12-1088

As for the first prong, it is true that the application of

the proper burden of proof would not, by itself, have

compelled the court to find Diante capable of expressing

himself coherently. But in light of the evidence that

was presented at the hearing, it is reasonably likely

that a different result would have obtained if defense

counsel had prepared for Diante’s testimony, secured

the presence of Levy, and objected to the court’s pre-

sumption against Diante’s competency. The only actual

and possible basis in the record for the conclusion that

Diante was incapable of expressing himself was the

idea that he could not “differentiate between reality

and fantasy.”

There is no doubt that adequate preparation for

Diante’s testimony would have mitigated the adverse

effect of his saying that Santa Claus, the tooth fairy, and

Spiderman were “real.” Reading Karen Wilson’s inter-

view with Diante would have alerted counsel that this

issue would likely come up on cross-examination and

that counsel should be ready to clarify the boy’s under-

standing in the hearing. The prosecutor’s questions on

this subject were confusing. At one point she asked

about the difference between “real things” and “cartoons,”

and then shifted to the difference between “real” and

“something else” — by which she evidently meant “ficti-

tious.” Adequate preparation of the witness would

have enabled defense counsel to recognize this obvious

misunderstanding and to correct it on re-direct or by

asking that the questions be made clear for the six-year-

old witness. And interviewing Diante in advance

would have allowed counsel to develop a rapport with

No. 12-1088 87

the witness and to anticipate the linguistic quirks (such

as pronouncing “limo” like “rainbow” and referring to

church as “heaven”) that made some of Diante’s

responses more difficult to comprehend. In short, pre-

paring Diante for his testimony would have made

defense counsel a better examiner and Diante a better

witness.

Levy would have strengthened the credibility of

Diante’s version of how Jaquari died by showing that

his account had remained consistent. Since the day after

the tragedy, he had said that Jaquari put the string

around his neck. Levy’s testimony also would have

directly contradicted the testimony of investigator

Wilson, who suggested at the hearing that Diante had

trouble distinguishing reality from fantasy and that he

had told her that he was asleep when Jaquari got hurt.

See Dkt. No. 1-17 at 86-87. Diante also told Levy that he

was asleep when Jaquari died, but he also explained

that Jaquari was playing and wrapped the elastic from

the sheet around his neck, and that “ ‘Jaquari had a bub-

ble’ while he was asleep.” S.A. 105. Levy’s testimony

thus could have helped reconcile an apparent dis-

crepancy in Diante’s account. The Levy interview notes

also indicated that Diante was competent to testify,

observing that he knew his age, colors, numbers, and

the “difference between truth/lies.” S.A. 104. As a trained

child-witness examiner in the state’s law enforcement

apparatus, Levy’s observations and opinions of Diante

likely would have been helpful in showing the trial

court that Diante could provide competent testimony.

88 No. 12-1088

If counsel had prepared adequately for Diante’s testi-

mony and secured Levy’s presence, the evidence in

support of Diante’s competency probably would have

outweighed the evidence against it. Even without Levy

and with an unprepared Diante, the trial judge said that

he had “considerable question” as to Diante’s capacity

to express himself so as to be understood. With the

benefit of Levy’s testimony and modest preparation of

Diante, it is reasonably likely that Diante would have

been found competent. Even if the evidence were only

in equipoise, the court still should have found Diante

competent if trial counsel had objected to the misalloca-

tion of the burden of proof. If counsel had made the

needed effort, it is reasonably likely that an objective

decision-maker would have found Diante competent

to testify. The Illinois Appellate Court’s opinion to the

contrary is itself unreasonable.

Harris has demonstrated that her defense counsel’s

performance was deficient at Diante’s competency

hearing, and that, but for his unprofessional errors,

there was a reasonable probability that both the outcome

of that hearing and the outcome of her trial would

have been different. Because of clear errors the Illinois

Appellate Court made in applying the prejudice standard

as developed by the Supreme Court’s cases under Strick-

land, we find its decision on that issue to have been

an unreasonable application of clearly established law.

See 28 U.S.C. § 2254(d)(1).

No. 12-1088 89

Conclusion

The decision of the district court is R EVERSED and

the case R EMANDED with instructions to grant a writ of

habeas corpus unless the State elects to retry Harris

within 120 days after issuance of the mandate.

M ANION, Circuit Judge, concurring. I concur with the

court’s comprehensive opinion. The Sixth Amendment

of the United States Constitution provides that

the accused shall have the right “to have compul-

sory process for obtaining witnesses in his favor.” This

seldom-visited provision necessarily emerges under

the facts of this case. Forty-five years ago the Supreme

Court summed it up pretty well.

The right to offer the testimony of witnesses, and to

compel their attendance, if necessary, is in plain

terms the right to present a defense, the right to pre-

sent the defendant’s version of the facts as well as

the prosecution’s to the jury so it may decide where

the truth lies. Just as an accused has the right to con-

front the prosecution’s witnesses for the purpose

of challenging their testimony, he has the right to

90 No. 12-1088

present his own witnesses to establish a defense. This

right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19 (1967).

At the time of Jaquari’s death, his brother Diante was

five years old. Apparently he was the only one in the

room when Jaquari became strangled by the elastic

band from the fitted bed sheet. After many hours in

custody, Nicole Harris made a very lucid confession, on

videotape, under careful questioning by the prosecuting

attorney. When this was presented at trial, Ms. Harris

vehemently challenged it. Nevertheless, the jury viewed

it in full.

The court cites several shortcomings in Harris’s

counsel’s performance that contributed to the decision

not to allow Diante’s testimony. In that regard, I agree

that counsel’s assistance was ineffective.

If the government chooses to retry the case, presumably

two things will occur. The jury will again see the taped

confession and Ms. Harris will similarly challenge it.

But when Diante testifies, he will be 13 or 14 years old.

No doubt he has reflected on what he saw (and did not

see) ever since, especially during his visitations in

prison with his mother during the intervening years.

His reflections will be much more precise, and in all

likelihood beneficial to his mother.

Regardless of the decision whether or not to retry,

or the subsequent testimony if it is tried, nothing will

override the tragedy of Jaquari’s death.

10-18-12