# James T. Foster v. James M. Schomig, Cross-Appellee > Court of Appeals for the Seventh Circuit · August 24, 2000 · 223 F.3d 626 URL: https://www.frixlaw.com/law-library/cases/9493332 ## Case - **Full name:** James T. FOSTER, Petitioner-Appellee, Cross-Appellant, v. James M. SCHOMIG, Respondent-Appellant, Cross-Appellee - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** August 24, 2000 - **Citations:** 223 F.3d 626 - **Precedential status:** Published - **Opinion:** Concurring in part by Rovner - **Judges:** Coffey, Manion, Rovner - **Cited by:** 49 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9493332 ## How later opinions describe it (automated extraction) - holding that counsel's performance was not ineffective for deciding not to call an expert to testify about defendant's mental state because it might do more harm than good - concluding attorney's decision not to call witness was sound when "based on the attorney's determination that the testimony the [witness] would give might on balance harm rather than help the defendant" (quoting Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997) ## Opinion text ILANA DIAMOND ROVNER, Circuit Judge, concurring in part and dissenting in part. I respectfully dissent because I believe the majority has failed to give any deference to the fact-findings of the district court, instead ignoring the evidentiary hearing in its entirety and applying de novo review. Federal Rule of Civil Procedure 52(a) provides that “[fjindings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” See also Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573-76 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985); Moffat v. Gilmore, 113 F.3d 698, 700 (7th Cir.1997) (for a habeas petition, the district court’s findings of fact are reviewed for clear error and conclusions of law are reviewed de novo); Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996) (same). Because the findings the majority calls clearly erroneous and unreasonable and contrary to the record are based on credibility determinations, the majority necessarily implies that the credibility determinations themselves are wrong. But the majority points to no circumstances which would permit us to overturn the credibility findings. See United States v. Williams, 216 F.3d 611, 614 (7th Cir.2000) (credibility determinations may be reversed only under exceptional circumstances such as where it is physically impossible for the credited witness to observe that which he claims occurred or impossible under the laws of nature for the occurrence to have taken place at all); United States v. Ruiz, 178 F.3d 877, 880 (7th Cir.), cert. denied, 120 S.Ct. 229 (1999). Thus, it is impossible for me to reconcile the majority’s view with our prior jurisprudence. Here, the district court heard the testimony of Foster’s original defense attorneys as well as Dr. Rossiter. After listening to the attorneys themselves, the district court concluded that Foster’s attorneys did not make a strategy decision at all regarding whether to call Dr. Rossiter. On the contrary, the court concluded, “Indeed, it does not appear that counsel made a ‘decision’ not to offer Dr. Rossiter, but rather simply succumbed to the fact that they were not prepared to do so.” Foster v. Gilmore, 35 F.Supp.2d 626 , 632 n. 11 (N.D.Ill.1999). Implicit in this finding is the district court’s conclusion that Foster’s attorneys were not credible at the evidentiary hearing when they testified that they decided on balance that Dr. Rossiter’s testimony would harm Foster more than help him. The district court concluded that the attorneys’ failure to consult a psychiatric expert prior to or during the trial in order to lay the groundwork for demonstrating extreme emotional disturbance was “inexplicable” and “wholly ineffective.” Id., 35 F.Supp.2d at 630 . The subsequent failure to present Dr. Rossiter’s testimony was “inexcusable,” according to the district court. Id., 35 F.Supp.2d at 631 . Without pointing to any flaws in the reasoning and findings of' the district *640 court, the majority opines that “the hearing before the district court ... left something to be desired.” Ante at 632. The majority concludes that the hearing “supports the conclusion of the Illinois Supreme Court that the decision not to call Dr. Rossiter was a matter of reasonable trial strategy.” Id. Of course, there was no evidentiary hearing at all in the state court, and so it is unclear on what evidence the Illinois Supreme Court based this conclusion and even more unclear why we should uphold it. Instead of deferring to the district court’s findings of fact following a full evidentiary hearing, the majority takes a lengthy tour through the original sentencing transcript, concluding from the cold record, contrary to the credibility findings of the district court, that “not calling Dr. Rossiter was entirely reasonable.” Ante at 684. Again, the district court found, as a matter of fact, that Foster’s counsel made no reasoned decision at all, but rather “succumbed” to unpreparedness. We cannot set aside that finding unless we have a strong conviction that the district court committed clear error. Anderson, 470 U.S. at 673 , 105 S.Ct. 1504 (“The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court.”). The majority has supplied no reason to believe the district court clearly erred. It should go without saying that counsel’s failure, due to lack of preparation, to present the only statutory mitigating factor that applied to Foster constitutes deficient performance. See Eddmonds v. Peters, 93 F.3d 1307, 1324 (7th Cir.1996) (Flaum and Rovner concurring), cert. denied, 520 U.S. 1172 , 117 S.Ct. 1441 , 137 L.Ed.2d 548 (1997). Counsel in a capital case is obliged to mount a “significant effort, based on reasonable investigation and logical argument” in order to mitigate a client’s punishment. Id., 93 F.3d at 1323 -24 (quoting Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir.1989), cert. denied, 493 U.S. 874 , 110 S.Ct. 206 , 107 L.Ed.2d 159 (1989)). When it is apparent that the client has some mental condition that warrants further investigation, the failure to investigate- is ineffective assistance. Id. (citing Stewart v. Gramley, 74 F.3d 132, 135 (7th Cir.1996), cert. denied, 519 U.S. 838 117 S.Ct. 113 , 136 L.Ed.2d 65 (1996)). Dr. Rossiter was not contacted by defense counsel until June 7, 1985, a few hours after the jury returned its verdict of guilty and a few days before the trial court commenced proceedings to determine Foster’s eligibility for the death penalty. Dr. Ros-siter began his examination of Foster on June 8, 1985. The hearing in mitigation and aggravation began on June 11, 1985, immediately following the court’s determination that Foster was death penalty eligible. The trial court allowed a short continuance to allow Dr. Rossiter to complete his examination of Foster, and to write his report. On June 25, 1985, the hearing concluded and the trial court sentenced Foster to death. James Foster suffers from borderline paranoid schizophrenia, schizoid personality, explosive personality disorder and antisocial personality disorder. He also suffered from depression, brought on by the death of his mother approximately five months before he committed this crime. He has a long history of drug and alcohol abuse, and at the time of the offense, he was under the influence of alcohol, cocaine and marijuana. Foster has a history of serious head injuries sustained in 1969, 1975 and 1981. The sentencing court never heard any of this evidence because Foster’s counsel did not call Dr. Rossiter to testify at the hearing in mitigation. Dr. Rossiter did testify before the district court, and the district court found him to be highly credible. Dr. Rossiter testified that defense counsel never asked him at the time of the sentencing hearing to determine whether Foster was under an “extreme emotional disturbance,” a statutory factor in mitigation in Illinois. See Eddmonds, 93 F.3d at 1325 (attorney essentially abdicated his duty to make reasonable inquiry of mitigating circumstances where, *641 among other things, he never asked a mental health expert to render an opinion on whether the defendant suffered a mental disturbance at the time of the crime when other information pointed to past psychological problems) (Flaum and Rov-ner concurring). Dr. Rossiter testified in the district court that, had he been asked, he would have answered that Foster was suffering from an extreme emotional disturbance at the time of the crime. When defense counsel knew that the evidence against his client was overwhelming, indeed when defense counsel admitted in closing arguments that the defendant killed the woman he loved, it was patently clear that the only issue for the finder of fact to resolve was the defendant’s mental state at the time of the crime. 1 Under these circumstances, to fail to consult a mental health expert earlier is inexplicable and constitutes ineffective assistance of counsel. The subsequent failure to ask Dr. Rossiter the only relevant question, whether the defendant was under an extreme emotional disturbance at the time of the crime, demonstrates that Foster was essentially without counsel for the purposes of the sentencing hearing. The question remains whether Foster was prejudiced by his attorneys’ ineffective assistance at sentencing. Under Strickland, Foster must show that there is a reasonable probability that, but for his attorneys’ errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). “[A] defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id., 466 U.S. at 693 , 104 S.Ct. 2052 . Rather, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694 , 104 S.Ct. 2052 . The district court found that because extreme emotional disturbance is a factor in mitigation that the trial court must consider under the statute, and because Foster had no other effective evidence in mitigation, he was prejudiced by this failure. I agree. ' Illinois law provides that: The court shall consider ... any aggravating and any mitigating factors which are relevant to the imposition of the death penalty.... Mitigating factors may include but need not be limited to the following: (1) the defendant has no significant history of prior criminal activity; (2) the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution; (3) the murdered individual was a participant in the defendant’s homicidal conduct or consented to the homicidal act; (4) the defendant acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm; (5) the defendant was not personally present during commission of the act or acts causing death. 720 ILCS § 5/9-1. The trial court considered the statutory mitigating factors one by one, concluding that there was no evidence supporting mitigation under any of these theories. The trial court then considered non-statutory evidence presented, which consisted entirely of statements by friends and family members regarding Foster’s more redeeming personal qualities. The evidence was thin. Indeed, the majority recognizes the flimsy nature of the mitigation evidence, noting that “[t]he mother (not his wife) of two of his six children testified that his generosity occasionally entailed *642 the provision of financial support for the two children.” Ante at 629. Other evidence presented included testimony by Foster’s father and uncle about Foster’s religious convictions, and testimony by Foster’s twelve-year-old son that his father was a “nice man” who played basketball with him, took him on vacations and taught him about the Bible. The trial court, after finding no statutory mitigating factors present, stated, “I listened with interest to Mr. Giampoli’s so-called nonstatutory mitigating factors. And I find none of those to be of adequate mitigation to change this situation.” Sentencing Tr. June 25, 1985 at 62. Foster was effectively without any evidence in mitigation. “Without a reasonable showing of mitigation by the defense, the court had no choice: under the Illinois death penalty scheme, if no sufficient mitigating factors are found, ‘the court shall sentence the defendant to death.’ ” Hall v. Washington, 106 F.3d 742, 752 (7th Cir.1997), ce rt. denied, 522 U.S. 907 , 118 S.Ct. 264 , 139 L.Ed.2d 190 (1997) (citing 720 ILCS 5/9-l(h)). The majority has adequately detailed the evidence in aggravation. Against this, the trial court weighed nothing. Foster’s attorneys testified before the district court that they feared Dr. Rossiter’s testimony on cross-examination would have harmed rather than helped Foster. It is difficult to see how it could have harmed him. The district court was already well aware of Foster’s tendency toward explosive anger and aggressive physical outbursts. Dr. Rossiter’s testimony would have provided the only explanation for this behavior, the only evidence that Foster suffers from a number of serious psychological problems. The district court concluded: In the instant case, having heard Dr. Rossiter’s testimony at the evidentiary hearing, in which he was subjected to skillful cross-examination, this court concludes that his testimony would have demonstrated the statutory mitigating factor of extreme mental or emotional disturbance. This court finds that Dr. Rossiter was highly credible and that his testimony was effective and persuasive. The failure to present this testimony at the sentencing hearing was inexcusable. Foster, 35 F.Supp.2d at 631 (footnote omitted). The court commented that Dr. Ros-siter “convincingly defended his conclusion that petitioner was acting under an extreme emotional disturbance.” Id., 35 F.Supp.2d at 631 n. 9. The district court also noted that Dr. Rossiter testifies for the prosecution two-thirds to three-quarters of the time. It is difficult to imagine how Dr. Rossi-ter’s testimony would not have affected the sentencing court. Again, we need not find that the sentencing court would more likely than not have sentenced Foster to life rather than death. Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . We need only find that Dr. Rossiter’s testimony undermines our confidence in the outcome. Id. My confidence is undermined. I therefore respectfully dissent. . I agree with the majority that defense counsel’s reference to Foster killing the woman he loved did not constitute deficient performance under the circumstances. Therefore, I concur in this part of the majority’s opinion. I also concur with the majority’s conclusion that the AEDPA applies to Foster’s petition. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9493332. Public record. Not legal advice.