Petition for Writ of Certiorari — Scott E. Schmidt, Petitioner v. Brian Foster, Warden

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Petition Appendix

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17‐1727

SCOTT E. SCHMIDT,

Petitioner‐Appellant,

BRIAN FOSTER, Warden,

Respondent‐Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 2:13‐CV‐01150‐CNC — Charles N. Clevert, Jr., Judge.

____________________

ARGUED SEPTEMBER 6, 2018 — DECIDED DECEMBER 20, 2018

____________________

Before WOOD, Chief Judge, and FLAUM, EASTERBROOK,

KANNE, ROVNER, SYKES, HAMILTON, BARRETT, SCUDDER, and

ST. EVE, Circuit Judges.*

ST. EVE, Circuit Judge. Scott Schmidt shot and killed his es‐

tranged wife. He confessed at the scene, but come trial he

sought to mitigate his crime with the second‐degree defense

* Circuit Judge Brennan did not participate in the consideration or de‐

cision of this case.

No. 17‐1727

of adequate provocation. The Wisconsin trial court, in decid‐

ing whether the defense should go to the jury, asked for an

offer of proof and an evidentiary hearing. Schmidt complied

with the first request but balked at the second, not wanting to

show any more of his defense hand. That concern was well

taken, and the trial court ordered an ex parte, in camera exam‐

ination of Schmidt instead. The trial court added, however,

that Schmidt’s lawyer could “not say[ ] anything” and would

“just be present” for the examination.

The trial court questioned Schmidt in chambers. Schmidt’s

lawyer observed silently. Schmidt rambled, interrupted only

by a few open‐ended questions from the trial court and a brief

break during which he reviewed his offer of proof with his

lawyer. After the examination, the trial court ruled that

Schmidt did not act with adequate provocation. He therefore

could not raise the defense at trial. A jury later convicted

Schmidt of first‐degree homicide, and he was sentenced to life

in prison.

Schmidt petitioned for a writ of habeas corpus, arguing

that the trial court’s in camera examination deprived him of

counsel and due process. The district court denied Schmidt’s

petition, and a divided panel of our court reversed and re‐

manded with instructions to grant it. We vacated that deci‐

sion, reheard the case en banc, and now affirm the district

court’s judgment. The state trial court’s unusual examination

of Schmidt was constitutionally dubious, and we discourage

the measure. But our habeas review is limited. We ask

whether the state court of appeals unreasonably applied

clearly established Supreme Court precedent in rejecting

Schmidt’s constitutional claims. We answer that it did not.

No. 17‐1727

I. Background

During an argument on April 17, 2009, Schmidt followed

his estranged wife, Kelly Wing‐Schmidt, out of her home and

onto her driveway. There, he shot her seven times with his

revolver. Police arrived and found Schmidt standing over the

body with the gun in his hand. He confessed immediately.1

A. Pretrial Proceedings

Wisconsin charged Schmidt with first‐degree intentional

homicide. He never recanted his confession, but he did intend

to present an affirmative defense—adequate provocation. See

Wis. Stat. § 940.01(2)(a). Under Wisconsin law, that defense

mitigates intentional homicide from first degree to second. Id.

§ 939.44(2). The defense has “both subjective and objective

components”—a defendant “must actually believe the

provocation occurred” and the provocation must be one “that

would cause an ordinary, reasonable person to lack self‐

control completely.” State v. Schmidt, 824 N.W.2d 839, 842

(Wis. Ct. App. 2012) (citing Wis. Stat. § 939.44(1); State v.

Felton, 329 N.W.2d 161, 172 (Wis. 1983)). “Once a defendant

successfully places” adequate provocation “in issue,” the

state must disprove it beyond a reasonable doubt. Id. at 843

(citing State v. Head, 648 N.W.2d 413 (Wis. 2002)). To place the

defense “in issue,” a defendant need only present “‘some’

The material facts of this case are undisputed, and this background

draws directly from the state courts’ findings and the trial record. See State

v. Schmidt, 824 N.W.2d 839 (Wis. Ct. App. 2012); State v. Schmidt, No. 09

CF 275, slip op. (Wis. Cir. Ct. July 27, 2011). Schmidt has not attempted to

rebut any of the state courts’ findings, and so we presume that they are

correct. 28 U.S.C. § 2254(e)(1); see also Hicks v. Hepp, 871 F.3d 513, 525 (7th

Cir. 2017).

No. 17‐1727

evidence supporting the defense.” Id. (quoting Head, 648

N.W.2d at 439).

Before trial, Schmidt filed a motion notifying the trial court

and the state that he intended to present the adequate‐

provocation defense. He intended, specifically, to introduce

evidence of Wing‐Schmidt’s “false allegations, controlling

behaviors, threats, isolation, unfaithfulness, verbal abuse and

arguments.” The state argued that evidence of the couple’s

history, however fraught, did not support a theory of

adequate provocation under Wisconsin law.

The trial court held a pretrial hearing in early 2010. At the

hearing, the court echoed the state’s concern that Schmidt’s

proposed provocation evidence, most of which related to

events years before the murder, was irrelevant and would un‐

fairly prejudice the state’s case. The trial court therefore or‐

dered an evidentiary hearing to determine whether Schmidt

could meet his threshold burden. It instructed Schmidt that

during the hearing his counsel could call witnesses, and, if the

court was unsatisfied with the evidence presented, Schmidt

could supplement the record. Before the hearing, Schmidt had

to file a list of witnesses he intended to call.

Schmidt did so. His counsel filed a list of 29 witnesses with

short summaries of their anticipated testimony, a legal analy‐

sis of the defense’s applicability, and a five‐page offer of proof

with a six‐year timeline of the couple’s troubled history. A

few days later, at another hearing, the trial court noted that it

had reviewed Schmidt’s submissions, but its reservations per‐

sisted. The trial court did not, however, ask for the presenta‐

tion of witnesses or evidence from Schmidt, as it had said it

would the month before. Instead, the court explained that its

review of Wisconsin law—namely, State v. McClaren, 767

No. 17‐1727

N.W.2d 550 (Wis. 2009)—confirmed that a hearing was appro‐

priate, but that it should hold the hearing in camera to protect

the defense from disclosing its trial strategy to the state (a

measure McClaren blessed, 767 N.W.2d at 559 n.12). Schmidt’s

lawyer responded that additional evidence was unnecessary,

but he agreed that if the court was going to question Schmidt

it should do so in camera and ex parte. Schmidt’s lawyer, in

fact, noted that he intended to suggest that, if the court

“ask[ed] for evidence from the defendant that goes to his sub‐

jective belief for adequate provocation,” it should do so

through an “ex parte in‐camera inspection of the Court and

the defendant and seal those records.” The state agreed this

was the “best way” to handle the court’s examination.

The trial court then asked the state whether it would object

to Schmidt’s lawyer silently observing the examination. The

state did not object—nor, for that matter, did Schmidt’s law‐

yer. The state noted, though, that it did not want Schmidt con‐

ferring with counsel about how to answer the court’s ques‐

tions. Before concluding the in‐court hearing and beginning

the in camera examination, the court offered Schmidt’s lawyer

“a few minutes” to consult with his client. Schmidt’s lawyer

accepted.

The in camera examination opened with the trial court put‐

ting on the record that Schmidt’s lawyer was “present but …

not participating in the hearing.” The court then asked

Schmidt “what was in your mind” when he confronted Wing‐

Schmidt. Schmidt’s answer, which went on uninterrupted for

14 transcript pages, addressed the events leading up to the

killing, some history between him and his estranged wife, the

moment of the killing (though he professed not to remember

pulling the trigger), and the immediate aftermath. The trial

No. 17‐1727

court stopped Schmidt as he was describing his arrest. It ex‐

plained to Schmidt that his “attorney has made an offer of

proof about other things that had occurred prior to this that

had entered into your mind at the time.” The trial court asked

Schmidt to “tell us how those things entered into your mind

at the time?” Schmidt explained that his estranged wife had

threatened to take the kids and physically abused him. The

trial court asked again; Schmidt continued to detail the cou‐

ple’s troubled history.

The trial court explained that Schmidt’s testimony did not

align with his offer of proof, to which Schmidt replied that he

had not even seen the offer. The trial court then suggested a

“short break,” during which Schmidt could review the offer

of proof while the court took a phone call. Schmidt’s lawyer

asked if he could consult with his client. The trial court re‐

sponded, “It’s off the record. Yeah, you can talk. But he

should just be reviewing” the offer of proof.

Back on the record, the trial court noted that they had

taken a break so that Schmidt could “review this offer of proof

and different facts contained in it.” Then, and again, the trial

court asked Schmidt about “what you contemplated at the

time” of the killing. Schmidt responded that everything had

come “to a head,” he was “overwhelmed, and eventually just

got—they piled up one after another.” Schmidt elaborated

upon events that happened in years past—financial struggles,

abusive behavior, and fights. The trial court concluded the ex‐

amination, asked Schmidt and his lawyer to return to the

courtroom, and said that it would consider its decision.

Schmidt’s lawyer did not ask to supplement his evidentiary

presentation with affidavits or additional testimony.

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That afternoon, and without further argument, the trial

court ruled. It did not detail factual findings, citing the ex parte

and in camera nature of the examination. Its conclusion was

that the killing “did not involve a provocation and it was not

an adequate provocation.”

A month later, at another pretrial hearing, the parties dis‐

cussed whether Schmidt would call one of the witnesses iden‐

tified in his annotated witness list. The trial court stated that

since it had ruled on the defense’s admissibility, it did not see

the relevance of the testimony. Schmidt’s lawyer explained

that he thought the “issue open” and believed that the court

would allow further supplementation. The trial court rejected

that idea, noting again that it had already ruled on the de‐

fense’s admissibility. The court would, though, allow Schmidt

to “supplement the record for appeal.” Schmidt’s lawyer did

not do so.

B. Trial and Posttrial Proceedings

Trial began on March 4, 2010, and lasted five days. The

jury convicted Schmidt of first‐degree homicide.

Schmidt moved for a new trial on two grounds: the denial

of his due process right to present a defense and the denial of

his Sixth Amendment right to counsel during the in camera

examination. The trial court held oral argument. During oral

argument, the trial court asserted that the examination was

simply “an effort to supplement the writing” which the court

“relied upon and made reference to” during the examination.

At the end of oral argument, the court denied Schmidt’s mo‐

tion and issued its opinion. The opinion explained:

[D]efense counsel suggested and agreed to an in‐camera

hearing, and did not at any point request to actively

No. 17‐1727

participate in the in‐camera examination. In addition, there

was a break during the in‐camera hearing to allow defense

counsel and defendant to confer regarding the offer of

proof. Thus, defense counsel actively participated prior to

and during the in‐camera proceeding. As the State notes,

this is not a circumstance where the issues and argument

were undertaken by the defendant without representation

of counsel. The nature and detail of the written offer of

proof clearly indicates that counsel discussed the numerous

points with the defendant.

The opinion repeated that the defense “expressed a prefer‐

ence for, and agreed to, an in‐camera proceeding for the de‐

fendant’s oral offer of proof” and that “[a]t no time did coun‐

sel make a request to question the defendant.” It concluded,

in “view of defense counsel’s extensive argument and sub‐

missions with regard to the adequate provocation defense,

the Court finds there was no denial of the right to counsel.”

The trial court sentenced Schmidt to the mandatory pen‐

alty for first‐degree homicide—life in prison. See Wis. Stat.

§§ 940.01, 939.50(3)(a), 973.014(1g).

C. The Court of Appeals Decision

Schmidt appealed. The Court of Appeals of Wisconsin ex‐

plained first that Schmidt’s case presented a “close question”

as to whether he put forth “some evidence” of adequate prov‐

ocation. Schmidt, 824 N.W.2d at 850. It noted that the state had

conceded that “Schmidt, subjectively, acted in the heat of pas‐

sion when he shot Wing‐Schmidt.” Id. at 850 n.8; see also id. at

844 n.5. But the state court of appeals, citing mostly Schmidt’s

“rambling narrative” during the in camera examination, held

that Schmidt had failed to present some evidence of objec‐

tively adequate provocation. Id. at 847, 850–52. It cited also the

No. 17‐1727

lengthy history of hostility between Schmidt and his es‐

tranged wife. Considering this history and the fact that

Schmidt had a hand in starting the fight that culminated in

the killing, the court decided that Schmidt “deliberately chose

to ignite the fire.” Id. at 852.

The court of appeals also rejected Schmidt’s right‐to‐

counsel claim. The in camera examination was, according to

the court, “merely a supplementary proceeding conducted for

his benefit.” Id. Especially in light of McClaren, the court said,

the examination in “a nonadversarial atmosphere was a

reasonable accommodation.” Id. at 852–53. Regarding

Schmidt’s argument that the examination was a “critical

stage,” the court of appeals saw it as “[f]atal” that the

examination was “not the only opportunity for Schmidt to

present his provocation evidence to the court.” Id. at 853. The

court added that, in any event, the trial court “recessed to

allow Schmidt to review his attorney’s written offer of proof

and speak with his attorney.” Id. The court of appeals

concluded that “if counsel felt Schmidt or the court was

overlooking something, or had any other concerns, there was

an opportunity to so advise Schmidt.” Id. Plus, according to

the court, “Schmidt had the opportunity to present any

concerns or questions he had to his attorney.” Id.

D. Federal‐Court Proceedings

Schmidt turned to federal court, petitioning for a writ of

habeas corpus. The district court denied Schmidt’s petition. It

concluded that the state courts had not deprived Schmidt of

his due process right to present a defense. It concluded fur‐

ther that the state courts had not unreasonably applied clearly

established Supreme Court law in rejecting Schmidt’s right‐

to‐counsel claim. See 28 U.S.C. § 2254(d)(1). On both claims,

No. 17‐1727

however, the district court granted a certificate of appealabil‐

ity. See id. § 2253(c).

A divided panel of our court reversed and remanded.

Schmidt v. Foster, 891 F.3d 302 (7th Cir. 2018). The majority rea‐

soned that Schmidt had a clearly established right to counsel

at critical stages, and, in this case, there was no more im‐

portant stage for Schmidt—whose sole defense hinged on the

ruling that immediately followed—than the ex parte, in camera

examination. The majority did not reach Schmidt’s due pro‐

cess claim. The warden petitioned for a rehearing en banc. A

majority of active judges voted to grant the petition, and we

vacated our initial opinion. Schmidt v. Foster, 732 F. App’x 470

(7th Cir. 2018).

II. Discussion

We review the district court’s decision de novo, but our

inquiry is an otherwise narrow one. Freeman v. Pierce, 878 F.3d

580, 585 (7th Cir. 2017). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), a federal court may grant

habeas relief after a state‐court adjudication on the merits

only when that decision (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States;” or

(2) “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceed‐

ing.” 28 U.S.C. §§ 2254(d)(1), (2). We focus here on the state

court of appeals opinion, as the last reasoned state‐court de‐

cision on the merits. Wilson v. Sellers, 138 S. Ct. 1188, 1192

(2018). The question, all agree, is whether that opinion unrea‐

sonably applied clearly established Supreme Court prece‐

dent. See 28 U.S.C. § 2254(d)(1).

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The bounds of a reasonable application depend on “the

nature of the relevant rule.” Yarborough v. Alvarado, 541 U.S.

652, 664 (2004). “The more general the rule, the more leeway

courts have in reaching outcomes in case‐by‐case determina‐

tions.” Id. The Supreme Court has emphasized that only its

holdings define the constitutional rule invoked. Harrington v.

Richter, 562 U.S. 86, 100 (2011); see also Carey v. Musladin, 549

U.S. 70, 75–77 (2006). If a rule entails an “inevitable” applica‐

tion to a set of facts, courts must apply it to those facts. Long

v. Pfister, 874 F.3d 544, 549 (7th Cir. 2017) (en banc), cert. denied,

138 S. Ct. 1593 (2018); see also Panetti v. Quarterman, 551 U.S.

930, 953 (2007). But AEDPA “does not require state courts to

extend” precedent nor does it “license federal courts to treat

the failure to do so as error.” White v. Woodall, 572 U.S. 415,

426 (2014) (emphasis omitted). Time and again, the Court has

cautioned against stretching its precedent to declare state‐

court decisions unreasonable. Sexton v. Beaudreaux, 138 S. Ct.

2555, 2558–60 (2018) (per curiam); Virginia v. LeBlanc, 137 S.

Ct. 1726, 1728–29 (2017) (per curiam); Woods v. Etherton, 136 S.

Ct. 1149, 1152 (2016) (per curiam); Woods v. Donald, 135 S. Ct.

1372, 1376–77 (2015) (per curiam); Lopez v. Smith, 135 S. Ct. 1,

3–4 (2014) (per curiam); Nevada v. Jackson, 569 U.S. 505, 512

(2013) (per curiam).

A state‐court decision can be a reasonable application of

Supreme Court precedent even if, in our judgment, it is an in‐

correct application. McDaniel v. Polley, 847 F.3d 887, 893 (7th

Cir. 2017), cert. denied sub nom. McDaniel v. Foster, 138 S. Ct.

554 (2017); Winston v. Boatwright, 649 F.3d 618, 632 (7th Cir.

2011). A state‐court decision can be a reasonable application

even if the result is clearly erroneous. Woodall, 572 U.S. at 419.

And a state‐court decision can withstand habeas review even

when the petitioner presents “a strong case for relief.”

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Harrington, 562 U.S. at 102. Only when a state‐court decision

is “so lacking in justification that there was an error well un‐

derstood and comprehended in existing law beyond any pos‐

sibility for fairminded disagreement” does it constitute an un‐

reasonable application of clearly established law. Id. at 103;

Woodall, 572 U.S. at 420. This standard is as Congress in‐

tended: “difficult to meet.” Harrington, 562 U.S. at 102; Sexton,

138 S. Ct. at 2558. As we have said, solely in “those relatively

uncommon cases in which state courts veer well outside the

channels of reasonable decision‐making about federal consti‐

tutional claims” is habeas relief appropriate. Dassey v.

Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc), cert. de‐

nied, 138 S. Ct. 2677 (2018).

This is not one of those uncommon cases. In our narrow

habeas review, we need not, and do not, endorse the consti‐

tutionality of the trial court’s unusual ex parte, in camera exam‐

ination without counsel’s active participation. See, e.g., Mar‐

shall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam). It is enough

to say that the Supreme Court has “never addressed” a case

like this one—factually or legally—and so we cannot brand

the state‐court decision unreasonable. Carey, 549 U.S. at 76.

A. Right‐to‐Counsel Claim

The Sixth Amendment provides that in “all criminal pros‐

ecutions, the accused shall enjoy the right … to have the As‐

sistance of Counsel for his defence.” U.S. Const. amend. VI.

This right means more than a lawyer at trial. See Powell v. Al‐

abama, 287 U.S. 45, 60–66 (1932). It ensures that defendants fac‐

ing incarceration will have counsel at “all critical stages of the

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criminal process.” Marshall, 569 U.S. at 62 (citation omitted);

see also, e.g., Lee v. United States, 137 S. Ct. 1958, 1964 (2017).

Schmidt’s claim is not about the effectiveness of his law‐

yer, a claim which would require him to show prejudice. See

Strickland v. Washington, 466 U.S. 668 (1984). He argues, in‐

stead, that his lawyer’s court‐ordered silence during the ex‐

amination completely deprived him of counsel at a critical

stage, such that prejudice is therefore presumed. This type of

claim has its roots in United States v. Cronic, 466 U.S. 648

(1984). In Cronic, decided the same day as Strickland, the Su‐

preme Court synthesized its right‐to‐counsel jurisprudence to

date and, in doing so, described the “circumstances that are

so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified.” Cronic, 466 U.S.

at 658; see also, e.g., Bell v. Cone, 535 U.S. 685, 695–96 (2002)

(describing Cronic’s “three situations”); Reynolds v. Hepp, 902

F.3d 699, 705 (7th Cir. 2018) (same).

Schmidt invokes Cronic’s first and “[m]ost obvious” cir‐

cumstance—“the complete denial of counsel.”2 Cronic, 466

U.S. at 659. Such a denial need not last the entire proceeding,

but it must occur during a critical stage. Id. Cronic explained

that the Court has “uniformly found constitutional error

without any showing of prejudice when counsel was either

totally absent, or prevented from assisting the accused during

a critical stage.” Id. at 659 n.25. That explanation referred to

cases in which counsel had not been appointed to represent

Cronic’s other two scenarios concern (1) instances in which counsel

fails entirely to subject the prosecution to meaningful adversarial testing

and (2) circumstances in which even a fully competent lawyer likely could

not provide effective assistance. Cronic, 466 U.S. at 658–60. Schmidt’s claim

does not fit into either scenario, and he does not contend otherwise.

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the accused at the time of a critical stage in the proceeding,

White v. Maryland, 373 U.S. 59 (1963) (per curiam) (no counsel

present at entry of plea); Hamilton v. Alabama, 368 U.S. 52

(1961) (no counsel present at arraignment), or cases in which

a court order or state law barred counsel from assisting dur‐

ing a critical stage of the trial, Geders v. United States, 425 U.S.

80 (1976) (bar on consultation during overnight recess); Her‐

ring v. New York, 422 U.S. 853 (1975) (bar on summation);

Brooks v. Tennessee, 406 U.S. 605 (1972) (law requiring defend‐

ant to testify first at trial or not at all); Ferguson v. Georgia, 365

U.S. 570 (1961) (bar on eliciting client’s trial testimony). At all

rates, Cronic and later decisions emphasize that the denial

must be “complete” to warrant the presumption of prejudice.

Cronic, 466 U.S. at 659; Wright v. Van Patten, 552 U.S. 120, 125

(2008); Roe v. Flores‐Ortega, 528 U.S. 470, 483 (2000); see also

Penson v. Ohio, 488 U.S. 75, 88 (1988).

Cronic and its kin are clearly established law, but they

come with two caveats. First, the presumption of prejudice is

“narrow.” E.g., Florida v. Nixon, 543 U.S. 175, 190 (2004); Smith

v. Brown, 764 F.3d 790, 796 (7th Cir. 2014). It arises only when

the denial of counsel is extreme enough to render the prose‐

cution presumptively unreliable. Flores‐Ortega, 528 U.S. at

484; see also Mickens v. Taylor, 535 U.S. 162, 166 (2002). That

happens rarely: only once in the thirty‐plus years since Cronic

has the Court applied the presumption of prejudice it de‐

scribed in a critical‐stage case. See Penson, 488 U.S. at 88 (pre‐

suming prejudice where the defendant lacked counsel for ap‐

peal). Second, the Court has outlined the principles behind

the Cronic‐described rights in only general terms. As a result,

the “precise contours” of these rights “remain unclear.” Don‐

ald, 135 S. Ct. at 1377 (quoting Woodall, 572 U.S. at 424); see also

Van Patten, 552 U.S. at 125. State courts therefore “enjoy

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‘broad discretion’ in their adjudication” of them.3 Donald, 135

S. Ct. at 1377 (quoting Woodall, 572 U.S. at 424); accord Yar‐

borough, 541 U.S. at 664. Mindful of those principles, we turn

to the reasonableness of the state‐court decision denying

Schmidt’s claim that (1) at a critical stage (2) he was com‐

pletely denied counsel.

1. Critical Stage

The Supreme Court has not provided a concise explana‐

tion of what constitutes a critical stage. Van v. Jones, 475 F.3d

292, 312 (6th Cir. 2007). Broadly, it has described a critical

stage as a “step of a criminal proceeding” that holds “signifi‐

cant consequences for the accused.” Bell, 535 U.S. at 696 (cita‐

tions omitted). Alternatively, though still broadly, the Court

has said that whether a stage is critical depends on whether,

during a “particular confrontation,” the accused faces preju‐

dice that counsel could “help avoid.” United States v. Wade,

388 U.S. 218, 227 (1967); see also Rothgery v. Gillespie Cty., Tex.,

554 U.S. 191, 212 (2008) (stating “what makes a stage critical

is what shows the need for counsel’s presence”); United States

v. Ash, 413 U.S. 300, 313 (1973) (describing a critical stage as a

moment in which the accused requires “aid in coping with le‐

gal problems or assistance in meeting his adversary”).

However described, the Supreme Court has recognized a

range of pretrial, trial, and posttrial events to count as critical

stages. See, e.g., Montejo v. Louisiana, 556 U.S. 778, 786 (2009)

(postindictment interrogation); Iowa v. Tovar, 541 U.S. 77, 87

We avoid calling these claims “Cronic claims,” as some have. Cronic

itself was not a case “in which the surrounding circumstance make it un‐

likely that the defendant could have received the effective assistance of

counsel.” 466 U.S. at 666. Cronic explained the rare types of cases in which

courts presume prejudice, but it did not exemplify any of them.

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(2004) (plea hearing); Penson, 488 U.S. at 88 (appeal); Estelle v.

Smith, 451 U.S 454, 470–71 (1981) (court‐ordered psychiatric

evaluation); Coleman v. Alabama, 399 U.S. 1, 9–10 (1970) (plu‐

rality) (preliminary hearing); Wade, 388 U.S. at 236–37

(postindictment lineup); Mempa v. Rhay, 389 U.S. 128, 134

(1967) (sentencing); White, 373 U.S. at 59–60 (plea entry); Ham‐

ilton, 368 U.S. at 53 (arraignment). Yet the Court has not con‐

fronted the circumstance that this case presents: a deprivation

of counsel during an in camera examination, which was con‐

ducted as a part of a broader, pretrial evidentiary presenta‐

tion. Its decisions, therefore, do not bind us on how to assess

the relevant stage, whether as the in camera examination alone

or as the entire evidentiary presentation.

That gap in the law shows itself here. In his papers,

Schmidt contended that the in camera examination was itself

the relevant critical stage. At oral argument, his counsel

seemed to take a different approach. She submitted that the

critical stage was the “entire proceeding” regarding the suffi‐

ciency of Schmidt’s provocation evidence, “one portion” of

which was the in camera examination. Under this view, the

critical stage comprised in‐court hearings, briefing, an offer‐

of‐proof submission, oral arguments, and, of course, the in

camera examination. The dissent, for its part, submits that both

the in camera examination and the broader evidentiary presen‐

tation are critical stages unto themselves, a conclusion which

means there can be critical stages within critical stages. That

may be one way to look at the problem. No Supreme Court

decision says that it is the only or right way.

We need not resolve how to define the scope of a critical

stage in cases like this one. Nor do we need to decide whether

this case presents a critical stage, whatever its scope, under

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clearly established law. AEDPA governs our review, and we

note only that these unanswered threshold questions portend

this case’s unsuitability for habeas relief. We can assume this

case involves a critical stage, and whether that stage was the

entire evidentiary presentation or only the in camera examina‐

tion, Schmidt cannot meet the second part of the analysis—

that he was so deprived of counsel as to mandate the pre‐

sumption of prejudice.

2. Complete Deprivation

Schmidt’s Cronic‐based claim lies only when there is a

“complete denial of counsel during a critical stage.” Flores‐

Ortega, 528 U.S. at 483 (emphasis added) (citing Cronic, 466

U.S. at 659; Penson, 488 U.S. at 88; Smith v. Robbins, 528 U.S.

259, 286 (2000)); see also Glebe v. Frost, 135 S. Ct. 429, 431 (2014)

(per curiam). Only for such out‐and‐out deprivations—those

“on par with total absence”—does the Court’s precedent

require the presumption of prejudice. Van Patten, 552 U.S. at

125; see also, e.g., Donald 135 S. Ct. at 1377.

Looking at the evidentiary presentation in its entirety,

Schmidt suffered nothing near a complete denial of counsel.

During the stage in question, Schmidt’s lawyer filed the notice

of the provocation defense, argued for its application during

court hearings, briefed the law, and submitted a detailed offer

of proof and an annotated witness list. Save for the one por‐

tion of the stage in which the trial court held the in camera ex‐

amination, Schmidt had full access to counsel. No Supreme

Court precedent suggests, much less establishes, that such

facts warrant the presumption of prejudice.

Even if the proper critical stage is the in camera examina‐

tion in isolation rather than the entire evidentiary

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presentation, the result is the same. During the examination,

as the trial court made clear, Schmidt’s lawyer was “present”

but could “not participat[e].” Schmidt insists that this de‐

prived him of counsel, and, to an extent, we agree. But again:

the deprivation must be “complete” to mandate the presump‐

tion of prejudice.

Schmidt and his counsel consulted immediately before the

examination. In the examination, the trial court repeatedly

referenced, and made plain that he was working from, the of‐

fer of proof Schmidt’s lawyer drafted. The trial court later

noted that the “nature and detail” of the offer of proof re‐

flected that counsel had discussed its many factual assertions

with Schmidt. Schmidt and his lawyer consulted again during

a recess in the examination, as the state court of appeals ob‐

served. See Schmidt, 824 N.W.2d at 853. In that recess, Schmidt

and his counsel—who had the benefit of hearing the trial

court’s questions and his client’s answers—discussed the of‐

fer of proof, the focus of the in camera examination. See id. To

be sure, Schmidt otherwise lacked assistance during the ex‐

amination. But he was not entirely, or “completely,” without

his lawyer’s help, and so a fair‐minded jurist could conclude

that the presumption does not apply. Cf. Penson, 488 U.S. at

88; Cronic, 466 U.S. at 659.

No clearly established holding of the Supreme Court man‐

dates otherwise. We, for example, have twice said that the

Court’s decisions establish a presumption of prejudice only

when counsel was “physically absent at a critical stage.” Mor‐

gan v. Hardy, 662 F.3d 790, 804 (7th Cir. 2011) (emphasis

added) (citations omitted); McDowell v. Kingston, 497 F.3d 757,

762 (7th Cir. 2007) (citations omitted); see also Rodgers, 569 U.S.

at 64 (stating a circuit court may rely on circuit precedent to

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determine whether it has recognized a “particular point in is‐

sue” as clearly established). We acknowledge that Morgan and

McDowell overstated the law; the Supreme Court has in fact

presumed prejudice for some constructive denials during a

critical stage despite counsel’s physical presence. See Herring,

422 U.S. at 865; Ferguson, 365 U.S. at 571. Yet we do not think

a state court unreasonably errs for understanding the Court’s

decisions in the same way that we have. See Woodall, 572 U.S.

at 422 n.3 (noting that divergent court of appeals decisions “il‐

lustrate the possibility of fairminded disagreement”).

Or take how we explained the Court’s precedent in Kitchen

v. United States, 227 F.3d 1014 (7th Cir. 2000). In Kitchen, we

described the Court’s complete‐denial cases (specifically in

the appellate‐stage context) as establishing that the presump‐

tion of prejudice applies only when “defendants have had no

assistance of counsel for any issues.” 227 F.3d at 1020–21 (em‐

phases in original) (citing Flores‐Ortega, 528 U.S. at 483). Not

so for Schmidt, who again consulted with his lawyer before

and during the examination and reviewed the offer of proof

that his lawyer prepared before answering questions focused

on that offer.

Consider also Estelle v. Smith. In Estelle, a defendant

submitted to a court‐ordered psychiatric examination, but

neither the state nor the trial court notified his appointed

counsel. 451 U.S. at 470–71. That evaluation “proved to be a

‘critical stage’” in his prosecution because the state later used

the findings against the defendant. Id. The Court, however,

did not take issue with the counsel’s absence during the

critical stage. See id. It instead held that the defendant’s

inability to consult with his counsel before “making the

significant decision of whether to submit to the

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examination”—that is, his inability to consult with counsel

before entering the critical stage—violated his right to

counsel. Id. at 471. Apply Estelle’s reasoning here: Schmidt

could, and did, consult with his counsel before submitting to

(and during) the in camera examination, and thus the right‐to‐

counsel problem does not necessarily follow.4

Of all the Supreme Court’s decisions, Ferguson comes clos‐

est to establishing a principle that the state‐court decision may

have misapplied. Cronic described Ferguson as a presumed‐

prejudice case because, there, counsel was “prevented from

assisting the accused during a critical stage” (though Ferguson

did not use the phrase “critical stage”). 466 U.S. at 659 n.25.

Specifically, Ferguson involved a Georgia law that prohibited

a defendant from testifying in his own defense. 365 U.S. at

570–71. By extension, the law prohibited a defendant from

having counsel elicit his testimony. The Court held that the

Georgia law denied the defendant “the guiding hand of coun‐

sel” and was therefore unconstitutional. Id. at 572 (quoting

Powell, 287 U.S. at 69).

To conclude that Ferguson clearly established a rule subject

to misapplication here is to read it at too high a level of gen‐

erality. See Long, 874 F.3d at 547. Ferguson held only that a state

law effectively banning counsel from eliciting his client’s trial

testimony was unconstitutional. It did not establish that

As the vacated panel opinion noted, Estelle, like this case, involved a

“non‐adversarial setting where the prosecutor was absent.” Schmidt, 891

F.3d at 313. We express no opinion as to whether ex parte examinations—

if ever necessary—require active and unhampered counsel. The point re‐

mains, however, that no clearly established Supreme Court holding tells

us what constitutes a complete denial of counsel in those unique circum‐

stances.

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defendants have an absolute right to have their counsel elicit

any important testimony, or else prejudice will be presumed.

Here, in fact, Schmidt did not even ask that his counsel elicit

his testimony—he objected to the need to adduce more evi‐

dence, but he agreed that an in camera examination was ap‐

propriate to address the trial court’s concerns. What is more,

Ferguson concerned (1) a defendant’s statements (2) about his

innocence (3) during a jury trial. This case concerns (1) a de‐

fendant’s response to questions, in part guided by his written

offer of proof, (2) regarding the admissibility of a defense (3)

in chambers. Those distinctions matter. Ferguson worried

about the “tensions of a trial,” embarrassment before “public

assemblies,” the chance to establish a defendant’s “innocence,”

and the risk that he could “overlook[ ] important” exculpatory

facts. Ferguson, 365 U.S. at 594–96 (emphases added) (citations

and quotations omitted). With none of those worries pressing

here, it is hardly “obvious” that Ferguson must control. Long,

874 F.3d at 549.

One may still argue that where state action (as opposed to

a lawyer’s neglect) causes a less‐than‐complete deprivation

during a critical stage, prejudice should still be presumed. A

loose reading of Cronic, which noted that the Court has pre‐

sumed prejudice when counsel was “prevented from assist‐

ing the accused during a critical stage,” could support that

view. 466 U.S. at 659 n.25 (citing, among other cases, Geders,

425 U.S 80; Herring, 422 U.S. 853; Brooks, 406 U.S. 605; Fergu‐

son, 365 U.S. 570); see also Strickland, 466 U.S. at 692 (citing

Cronic for the proposition that “prejudice is presumed … [af‐

ter] various kinds of state interference with counsel assis‐

tance”). But that view would be mistaken, at least as far as

clearly established law is concerned. The Court’s decisions,

Cronic included, speak of the “complete denial of counsel” at

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a critical stage. Van Patten, 552 U.S. at 125 (quoting Cronic, 466

U.S. at 659); Bell, 535 U.S. at 696; Flores‐Ortega, 528 U.S. at 483.

There is no clearly established lesser standard for state‐action

denials.

Glebe makes that clear. Glebe, like Herring, involved a

court‐ordered restriction on summation. Cronic described

Herring as a critical‐stage case (though Herring, like Ferguson,

did not use the phrase), and Herring held that a bar on all trial

summation violated the right to counsel. Cronic, 466 U.S. at

659 n.25; Herring, 422 U.S. at 865. In Glebe, the Court consid‐

ered whether a court‐ordered partial bar on trial summation

warranted the presumption of prejudice on habeas review.

The Court said it did not, because its precedent, namely Her‐

ring, establishes only that the “complete denial of summation”

requires the presumption. 135 S. Ct. at 431 (emphasis in orig‐

inal) (citing Herring, 422 U.S. 853). Even though a court order

caused the deprivation, Glebe held the petitioner’s claim to the

prevailing standard that the Court’s precedents establish—

that of a “complete denial.” Id. So too must we hold Schmidt’s

claim on habeas review.

The dissent sees the Supreme Court’s jurisprudence dif‐

ferently. It focuses on the fact that an accused is entitled to

effective counsel for every part of a critical stage. But the ex‐

istence of that right does not mean courts must presume prej‐

udice if it is infringed. The Court ruled out that possibility by

requiring a “complete denial of counsel during a critical

stage.” Flores‐Ortega, 528 U.S. at 483 (citing Cronic, 466 U.S. at

659).

The dissent also reads the Supreme Court’s decisions to

mean that courts may presume prejudice when the state in‐

terferes with the assistance of counsel. To get to that general

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proposition, the dissent connects Powell (which concerned the

last‐minute appointment of counsel before trial), with Hol‐

loway v. Arkansas, 435 U.S. 475 (1978) (which concerned a law‐

yer’s conflict of interests), with Brooks, Herring, and Geders

(which, as noted, concerned the sequencing of a defendant’s

testimony, summation, and an overnight recess, respectively),

and with Ferguson. This reading conflates decisions that the

Court, starting in Cronic, has thought distinct for right‐to‐

counsel purposes. Cronic, 466 U.S. at 659–61 & nn.25, 28 (citing

Brooks, Herring, Geders, and Ferguson as critical‐stage cases and

Powell and Holloway as cases in which “surrounding circum‐

stances made it so unlikely that any lawyer could provide ef‐

fective assistance”); see also Bell, 535 U.S. at 695–96. The ap‐

proach is also self‐defeating. If we must take several dissimi‐

lar decisions and reduce them to blanket principles in order

to arrive at a general proposition applicable here, the propo‐

sition is “far too abstract to establish clearly the specific rule”

Schmidt needs. Lopez, 135 S. Ct. at 4.

The state‐court decision was a reasonable application of

Supreme Court law, namely the complete‐denial requirement

for the presumption of prejudice in critical‐stage cases. We

could end there, but we add another reason the state‐court

decision has support. Even eschewing the complete‐denial re‐

quirement—and venturing beyond clearly established law5—

a fair‐minded jurist could conclude that this case’s facts were

The dissent criticizes our focus on the need for a “complete denial”

to presume prejudice as a “new theory” in this case. The warden argued

in his brief that Schmidt’s denial was not complete, and the state court of

appeals ruled similarly. See Schmidt, 824 N.W.2d at 853. That the vacated

panel decision chose not to address the Supreme Court’s complete‐denial

requirement does not make the theory new. See Schmidt, 891 F.3d at 318–

21.

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not “so likely to prejudice the accused” as to warrant the pre‐

sumption of prejudice upon which Schmidt’s case depends.

Cronic, 466 U.S. at 658.

As noted, Wisconsin’s adequate‐provocation defense has

“both subjective and objective components.” Schmidt, 824

N.W.2d at 842. The primary purpose of the in camera exami‐

nation was to assess Schmidt’s subjective belief of provoca‐

tion. For that reason, virtually all the trial court’s questions

were aimed at Schmidt’s mental state at the time of the shoot‐

ing. It inquired: “[W]hat was in your mind at that time?”;

“[H]ow things entered into your mind at the time?”; “How

did you contemplate these things on the 17th?” It wanted to

know “what [Schmidt] contemplated at the time,” and what

“weighed on [his] mind.” If in responding to these questions

Schmidt had failed to convince the trial court of his subjective

belief of provocation, perhaps his lack of full access to counsel

while facing these questions would suggest prejudice. But

that is not what happened. The trial court ruled that, based on

Schmidt’s proffer and his testimony, Schmidt lacked facts

“that would drive a reasonable person to kill his spouse.” It did

not decide whether Schmidt lacked adequate subjective evi‐

dence but only ruled on the objective prong. The state then

conceded on appeal that Schmidt had satisfied the subjective

prong. Schmidt, 824 N.W.2d at 844 n.5, 850 n.8. The court of

appeals, in turn, agreed with the trial court, ruling that

Schmidt’s defense fell short only for want of objectively ade‐

quate provocation evidence. Id. at 852.

Schmidt did not have full use of counsel during the

examination, but a fair‐minded jurist could find that

circumstance not presumptively prejudicial. The trial court

and court of appeals had plenty before them in deciding

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whether Schmidt’s evidence sufficed: Schmidt’s motion, a

brief arguing the defense’s legal support, a written offer of

proof setting forth the defense’s factual support, a summary

of 29 witnesses’ testimony, counsel’s oral argument, and 35

transcript pages of Schmidt’s testimony.6 Schmidt has not

cited one fact or piece of evidence that he could have raised

during the examination if only he had counsel. He, instead,

argues that his testimony was filled with “trivial, irrelevant[ ]

matters.” That is hard to believe, because he prevailed on the

subjective prong. But even if the argument held water, it is

unclear how superfluous testimony would likely prejudice

him. The state courts needed to look only for “some evidence”

of adequate provocation, and we cannot presume that they

are prone to distraction or obfuscation by a poorly performing

witness. There are therefore grounds to think that the

deprivation here did not render “the proceeding

presumptively unreliable.” Flores‐Ortega, 528 U.S. at 484. At

the least, “[n]o precedent of th[e] Court clearly forecloses that

view.” Etherton, 136 S. Ct. at 1152.

It is true, as the dissent points out, that the judges who

have rejected Schmidt’s right‐to‐counsel claim have had dif‐

ferent reasons for doing so. Those judges have decided that

Schmidt had adequate counsel (the state courts), that the

At oral argument, Schmidt’s lawyer emphasized that the state court’s

analysis rested on Schmidt’s in camera testimony. This, according to

Schmidt’s lawyer, undermines the impact of Schmidt’s other counseled

opportunities to present evidence. The state‐court decision did in fact ex‐

amine the offer, Schmidt, 824 N.W.2d at 851–52, and to the extent it focused

on Schmidt’s testimony that is because on appeal Schmidt “relie[d] pri‐

marily upon the in camera testimony,” id. at 846. Schmidt did not even dis‐

cuss his annotated witness list in his opening brief to the court of appeals.

Id. at 846 n.7.

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examination was not a critical stage (the state court of ap‐

peals), that the examination was too incomparable to any‐

thing the Supreme Court has considered (the district court),

that the examination was not a critical stage under clearly es‐

tablished law (the panel dissent), and that Schmidt was not

completely denied counsel under clearly established law (our

majority). The dissent thinks this divergence of thought sug‐

gests that denying Schmidt relief is an error. The opposite is

true. That so many judges see Schmidt’s claim differently un‐

derscores that there is room for fair‐minded disagreement

about how to view and resolve Schmidt’s claim. E.g., Harring‐

ton, 562 U.S. at 103.

That room exists because the Supreme Court has never ad‐

dressed a case like this. Its decisions, instead, emphasize the

limited reach of right‐to‐counsel claims that presume preju‐

dice, especially when considered on habeas review. See Don‐

ald, 135 S. Ct. at 1377; Van Patten, 552 U.S. at 125. Without

clearly established law mandating relief, we cannot grant it

under AEDPA.

B. Due Process Claim

Schmidt also raises a due process claim. He argues on ap‐

peal that the trial court’s “inquisitorial” (as opposed to adver‐

sarial) procedure for resolving the admissibility of his only

defense “was so arbitrary” that it violated his right to present

a defense. Schmidt admits that this is a “novel” argument. He

submits, however, that novelty does not doom his claim—he

argues that the claim should enjoy de novo review because the

state court of appeals did not address it.7

We are not so sure the state court of appeals “inadvertently over‐

looked” Schmidt’s due process claim thus subjecting it to de novo review,

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The warden argues that Schmidt has procedurally de‐

faulted and waived this claim. There is another problem

worth addressing first. In its order denying Schmidt’s peti‐

tion, the district court certified the following for appeal:

Schmidt’s argument that the state court violated his right to

present a defense when it ruled he had not met his burden

on the state law affirmative defense of adequate provoca‐

tion.

That is not the argument Schmidt now advances. To be sure,

the argument he now advances is difficult to pin down. His

opening brief focused on the arbitrariness of the examina‐

tion’s procedure; on reply he submits that his perhaps “eso‐

teric” claim is “not [focused on] the process per se or the result

per se” but the “arbitrariness, which suffused” both. At any

rate, the challenge is not one to the trial court’s evidentiary

ruling vis‐à‐vis his right to present a defense.

“When a petitioner’s case is subject to § 2253(c),” as this

case is, “non‐certified claims are not properly before this

court.” Bolton v. Akpore, 730 F.3d 685, 698 (7th Cir. 2013). We

have, moreover, “repeatedly reminded habeas corpus peti‐

tioners, especially when represented by counsel, to request

permission before arguing non‐certified claims.” Welch v.

Hepp, 793 F.3d 734, 737–38 (7th Cir. 2015) (collecting cases).

That much aside, a “defect in a certificate concerning one

as the district court ruled. Johnson v. Williams, 568 U.S. 289, 303 (2013). Be‐

fore the state court of appeals, Schmidt couched his due process argument

in his state‐law argument that he was entitled to the defense of adequate

provocation. The state court of appeals held that he was not entitled to the

defense under state law, and under Schmidt’s then‐theory that holding

likely resolved his due process claim as well. Schmidt, 824 N.W.2d at 850–

52. We need not decide the issue, though, for reasons explained in the text.

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claim does not deprive us of jurisdiction over that claim.” Id.

(citing Gonzalez v. Thaler, 565 U.S. 134, 142 (2012)). Looking

beyond the certificate‐of‐appealability problem, we agree

with the warden that the due process claim is procedurally

defaulted and waived.

A habeas petitioner may not raise a federal claim that he

has not exhausted in state court. 28 U.S.C. § 2254(b)(1)(A). He

must instead fairly present his federal claim to the state courts

so that they have a “fair opportunity” to consider and, if

needed, correct the constitutional problem. Picard v. Connor,

404 U.S. 270, 275–76 (1971). We have laid out four factors to

determine whether a petitioner has defaulted a claim:

1) whether the petitioner relied on federal cases that engage

in a constitutional analysis; 2) whether the petitioner relied

on state cases which apply a constitutional analysis to simi‐

lar facts; 3) whether the petitioner framed the claim in terms

so particular as to call to mind a specific constitutional right;

and 4) whether the petitioner alleged a pattern of facts that

is well within the mainstream of constitutional litigation.

Brown, 764 F.3d at 796 (quoting Ellsworth v. Levenhagen, 248

F.3d 634, 639 (7th Cir. 2001)). These factors are not applied

mechanically. The “bottom line” is whether “in concrete,

practical terms, … the state court was sufficiently alerted to

the federal constitutional nature of the issue to permit it to re‐

solve that issue on a federal basis.” Kurzawa v. Jordan, 146 F.3d

435, 442 (7th Cir. 1998) (quoting Verdin v. O’Leary, 972 F.2d

1467, 1476 (7th Cir. 1992)).

The court of appeals could not have been so alerted here.

Schmidt concedes his claim is “novel” in the law. It is neither

in the mainstream nor evocative of a specific constitutional

right. True, Schmidt did cite Chambers v. Mississippi, 410 U.S.

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284 (1973), and related cases to the state court of appeals. That,

however, was not enough to flag to the state court the claim

he now brings. Chambers did not deal with “a defendant’s

ability to present an affirmative defense”—which adequate

provocation is under Wisconsin law—nor has Chambers been

understood to apply in that context. Gilmore v. Taylor, 508 U.S.

333, 343 (1993); see also Kubsch v. Neal, 838 F.3d 845, 858 (7th

Cir. 2016) (en banc).

We afford relatively little leeway to habeas petitioners

who try to reformulate due process arguments. Chambers v.

McCaughtry, 264 F.3d 732, 738 (7th Cir. 2001) (citing Kurzawa,

146 F.3d at 443). Schmidt’s claim before the state court of ap‐

peals was that a “defendant’s due process right to a fair trial

renders it incumbent upon a trial court to err on the side of

admitting evidence of a mitigation defense.” That is a far cry

from what he argues now, namely, “the trial court’s inquisi‐

torial procedure … was so arbitrary that it violated Schmidt’s

constitutional right to present a defense.” These two claims

are not variations of the same theory, see, e.g., McGee v. Bartow,

593 F.3d 556, 566 (7th Cir. 2010); they are different in kind.

Schmidt points to no cause, prejudice, or miscarriage of jus‐

tice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). His due

process claim is procedurally defaulted.

It is also waived. Schmidt’s argument at the district court

was a straightforward one under Chambers v. Mississippi, chal‐

lenging the trial court’s “ruling” and “exclusion” of his de‐

fense. He did not, as he does now, challenge the ex parte, in

camera examination as itself violative of due process.

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III. Conclusion

Nothing we have said should be mistaken as belief that the

ex parte, in camera examination of Schmidt, held without his

counsel’s active participation and regarding his principal de‐

fense, was in fact constitutional. A pillar of the Sixth Amend‐

ment is the right to unhampered counsel; the aim of the Sixth

Amendment is to protect the promise of a fair trial tested by

adversaries. Trial courts must promote access to counsel and

guard the adversarial process while it runs its course. These

principles hold even when—especially when—courts meet

uncharted waters filled with risk for an accused facing life in

prison.

Applied here, trial courts should not opt to hold ex parte

hearings and silence defense counsel over other, less severe

alternatives without exceedingly good reasons. Even then,

trial courts must, if necessary, obtain a knowing and volun‐

tary right‐to‐counsel waiver from the accused for purposes of

the hearing.

These, however, are our admonitions. They are not clearly

established Supreme Court precedent dictating habeas relief

in this case. No such precedent exists. For that reason, we

AFFIRM the district court’s judgment.

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HAMILTON, Circuit Judge, joined by WOOD, Chief Judge, and

ROVNER, Circuit Judge, dissenting. The state trial court violated

Schmidt’s right to counsel. The judge was questioning the ac‐

cused on the merits of the case. Yet the judge ordered his lawyer

not to participate in the hearing. This constitutional violation

was clear even under the demanding standard for federal ha‐

beas corpus relief in 28 U.S.C. § 2254(d)(1).

The accused in a criminal case is entitled to the assistance

of counsel in any “critical stage” of the prosecution, a category

that applies broadly. E.g., Bell v. Cone, 535 U.S. 685, 695–96

(2002) (describing a “critical stage” as “a step of a criminal

proceeding, such as arraignment, that held significant conse‐

quences for the accused”). The Supreme Court’s critical‐stage

cases show beyond reasonable debate that the judge’s inter‐

rogation of Schmidt about his mitigation defense was a criti‐

cal stage. By commanding the lawyer to stay silent while the

judge interrogated his client, the judge violated the right to

counsel that is a foundation of our system of criminal justice.

Denying counsel at such a critical stage requires relief without

separate proof of prejudice from the denial. E.g., Bell v. Cone,

535 U.S. at 695–96; United States v. Cronic, 466 U.S. 648, 658–60

(1984).

The majority tries not to decide the critical‐stage issue and

then denies habeas relief on the new theory that the state

court’s denial of counsel was not quite “complete.” The the‐

ory does not hold up against the Supreme Court’s right‐to‐

counsel cases, which show that a “complete” denial is suffi‐

cient to presume prejudice, but it’s not necessary. The majority,

not the Supreme Court, has introduced here the notion that

only a “complete” denial of counsel requires a presumption

of prejudice. But see Cronic, 466 U.S. at 659 n.25 (“The Court

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has uniformly found constitutional error without any showing

of prejudice when counsel was either totally absent, or pre‐

vented from assisting the accused during a critical stage of the pro‐

ceeding.”) (collecting cases discussed below) (emphases

added).

If the judge had simply said that he wanted to hear what

the accused had to say without any counsel even present, I

could not have imagined, at least before this case, that any

court in the United States would find such interrogation ac‐

ceptable without a valid waiver of counsel by Schmidt him‐

self.

The only difference here is that Schmidt’s lawyer was

physically present in the room, but the judge might as well

have gagged him: he ordered the lawyer not to “participate”

in this critical stage of the prosecution. I don’t see a constitu‐

tional difference between an absent lawyer and a silenced

lawyer.

The majority’s own discomfort with the state court’s ex‐

traordinary procedure shines through from beginning to end:

“constitutionally dubious,” “we discourage the measure,”

“we … do not endorse the constitutionality of the trial court’s

unusual … examination,” “these … are our admonitions.”

That discomfort is fully justified.

Readers will notice, in addition to the majority’s discom‐

fort, that the theories to justify denying relief to Schmidt kept

shifting. The state trial court concluded that Schmidt was not

denied counsel at the ex parte hearing because his counsel sub‐

mitted the written offer of proof, made an oral argument, and

conferred with Schmidt during the brief recess for the judge’s

telephone call. That was wrong because Schmidt’s testimony

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was itself a critical stage. Even if one thinks of the entire pre‐

trial proceeding as the critical stage, Schmidt was entitled to

counsel for all of the critical stage, not just part of it. The state

appellate court found that the ex parte hearing was not a criti‐

cal stage at all, but “merely a supplementary proceeding con‐

ducted for his benefit,” so that Schmidt was not entitled to

counsel at all. State v. Schmidt, 2012 WI App 113, ¶¶ 46–48, 344

Wis. 2d 336, 362–63, 824 N.W.2d 839, 852–53. That was wrong

because the hearing so easily satisfied the Supreme Court’s

criteria for a critical stage: the accused confronted the state,

and his interests were at greater risk without counsel. E.g.,

United States v. Wade, 388 U.S. 218, 227 (1967).

The federal district court focused on the unique ex parte

procedure here, concluding briefly that habeas relief should

be denied because the Supreme Court has not yet confronted

an identical situation of silenced counsel in an in camera hear‐

ing. Schmidt v. Pollard, No. 13‐CV‐1150, 2017 WL 1051121, at

*11 (E.D. Wis. Mar. 20, 2017). That was more understandable

but wrong because § 2254(d)(1) does not insist on such a close

fit where the violation of rights is so clear. E.g., Panetti v. Quar‐

terman, 551 U.S. 930, 953 (2007).

The panel dissent focused on the absence of the prosecu‐

tor, reasoning that the Supreme Court’s critical‐stage cases

did not require state courts to treat Schmidt’s testimony as a

critical stage. Schmidt v. Foster, 891 F.3d 302, 322 (7th Cir. 2018)

(Barrett, J., dissenting). That was wrong because the accused

was still facing the power of the state (in the person of the

judge) during the prosecution, and his interests were very

much at risk, especially without counsel.

The en banc majority offers yet another theory: assuming

that Schmidt’s testimony was a critical stage, the denial of

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counsel was not “complete” and did not prejudice him, or at

least so the state courts might reasonably have concluded. Cf.

Wilson v. Sellers, 138 S. Ct. 1188, 1191–92 (2018) (federal habeas

review should ordinarily focus on state courts’ stated reasons

rather than those that might be imagined). The majority’s new

theory requires it to embrace at least one of two mistaken

propositions. The first is that Supreme Court precedents al‐

low state courts to deprive a defendant of counsel for part of

a critical stage of the prosecution. But see Ferguson v. Georgia,

365 U.S. 570 (1961). The second is that Supreme Court prece‐

dents allow state courts to silence a lawyer in a critical stage

as long as the lawyer is physically present in the room. But

see Cronic, 466 U.S. at 569 n.25 (collecting the relevant cases).

Both propositions are contrary to Supreme Court precedent.

It is widely recognized that the Supreme Court has re‐

cently been using summary reversals of decisions granting

habeas relief to push lower federal courts toward faithful ap‐

plication of the demanding standard in 28 U.S.C. § 2254(d)(1).

In this case, the majority has over‐corrected. It denies habeas

relief in the face of a blatant violation of the right to counsel.

It does so by suggesting immaterial distinctions that the Su‐

preme Court itself has refused to draw in its right‐to‐counsel

decisions. We should grant a writ of habeas corpus to allow

petitioner Schmidt a fair chance to show that he was guilty of

second‐degree murder rather than first‐degree murder. I re‐

spectfully dissent.

I. The Facts

Schmidt’s testimony in the ex parte, in camera hearing

addressed the only contested issue in his case. He admitted

shooting his wife while he was still standing over her holding

a smoking gun. He faced a mandatory life sentence for first‐

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degree murder. The only way he might have avoided a life

sentence was to show that he acted under “adequate

provocation,” which could have mitigated the crime to

second‐degree murder. See Wis. Stat. §§ 939.44, 940.01(2)(a).

The judge decided to evaluate the proposed defense be‐

fore trial. The judge wanted to see if Schmidt could satisfy the

modest “some evidence” standard under state law for sub‐

mitting the defense to the trial jury. See State v. Schmidt, 2012

WI App 113, ¶¶ 8–11, 344 Wis. 2d 336, 343–44, 824 N.W.2d

839, 843. We know that Schmidt’s testimony was critical for

the judge’s pretrial decision. The judge had already reviewed

a written submission from Schmidt’s counsel and had heard

argument from both the defense lawyer and the prosecutor.

Those submissions had not convinced the judge either way.

Before making a decision, the judge wanted to hear directly

from Schmidt himself.

The majority places great, perhaps even decisive, im‐

portance on the brief recess late during Schmidt’s testimony

during the ex parte hearing. The recess came as a surprise to

everyone except the judge, who announced that he needed to

make a telephone call. When Schmidt’s lawyer asked the

judge for permission merely to talk with his client—a phrase

that deserves emphasis: merely to talk with his client during a

recess—the judge told the lawyer he could only review with

Schmidt the written offer of proof summarizing the intended

defense. This limited opportunity for a brief talk with counsel

was not enough to satisfy the Sixth Amendment “in any sub‐

stantial sense,” and to conclude otherwise “would simply be

to ignore actualities.” Powell v. Alabama, 287 U.S. 45, 58 (1932);

see also Geders v. United States, 425 U.S. 80, 91 (1976) (court

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violated right to counsel by preventing counsel from confer‐

ring with client during overnight trial recess). At no point

during the in camera examination was Schmidt’s counsel al‐

lowed to question him directly to focus attention on the key

facts or to guide him toward meeting his burden of produc‐

tion for his defense in mitigation.

II. Denial of Schmidt’s Right to Counsel

The Supreme Court has taught that it is supposed to be

difficult for a habeas petitioner to satisfy the standard of

§ 2254(d)(1). Schmidt must show that the state courts not only

erred but unreasonably applied controlling Supreme Court

precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). Since

the 1996 amendment of § 2254(d), habeas corpus relief is re‐

served for rare cases in which state courts have strayed from

clearly established federal law. This case meets that standard.

Part II‐A explains why, under controlling Supreme Court

precedent, Schmidt’s testimony was a critical stage of the

prosecution. Part II‐B explains the principal mistakes in the

majority’s reasoning, which seeks to excuse the state court’s

denial of counsel in a critical stage on the theories that a state

court may deny the accused counsel for part of a critical stage

and/or that silencing the lawyer by court order during the

critical hearing was allowed because it was not a “complete”

denial of counsel as long as the lawyer was physically present.

A. Critical Stage

The Sixth Amendment guarantees that in “all criminal

prosecutions, the accused shall enjoy the right” to “have the

Assistance of Counsel for his defence.” The Supreme Court

has long recognized that the right applies not only at trial but

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also at all “critical stages” of the adversary process. E.g., Pow‐

ell v. Alabama, 287 U.S. 45, 57 (1932); Coleman v. Alabama, 399

U.S. 1, 9–10 (1970) (plurality opinion); Hamilton v. Alabama,

368 U.S. 52, 53–55 (1961); United States v. Wade, 388 U.S. 218,

227–28 (1967); Rothgery v. Gillespie County, 554 U.S. 191, 212–

13 & n.16 (2008). The majority tries not to base its denial of

habeas relief on the absence of a critical stage. The majority

questions whether this hearing was a critical stage but in the

end assumes without deciding that it was. Still, the critical‐

stage issue must be addressed here. The majority’s ultimate

conclusion about a less than “complete” denial of counsel de‐

pends on its views on the critical‐stage issue.

The judge’s ex parte, in camera interrogation of the accused

on the merits of his case was certainly a critical stage under

the Court’s Sixth Amendment right‐to‐counsel decisions. The

majority complains that the Supreme Court has not provided

one single definition of a critical stage. The slightly different

phrasing in different cases does not reflect substantive uncer‐

tainty about the broad and inclusive standard. In Bell v. Cone,

the Court concisely said that a critical stage is “a step of a

criminal prosecution, such as arraignment, that held signifi‐

cant consequences for the accused.” 535 U.S. at 695–96. In

Wade, the Court explained that a court must “scrutinize any

pretrial confrontation of the accused to determine whether

the presence of his counsel is necessary to preserve the de‐

fendant’s basic right to a fair trial as affected by his right

meaningfully to cross‐examine the witnesses against him and

to have effective assistance at the trial itself,” and the court

must analyze “whether potential substantial prejudice to de‐

fendant’s rights inheres in the particular confrontation and

the ability of counsel to help avoid that prejudice.” 388 U.S. at

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227. And in United States v. Ash, the Court said we must “de‐

termine whether the accused required aid in coping with legal

problems or assistance in meeting his adversary.” 413 U.S.

300, 313 (1973).

However the standard is phrased, the judge’s interroga‐

tion of the accused easily satisfies it. More important than the

particular phrasing of the standard are the many Supreme

Court decisions actually applying the standard. The sheer

number and range of these cases, discussed below, show that

the right to counsel at a critical stage is not narrow and fact‐

bound.

It’s not surprising that the Supreme Court has not consid‐

ered an ex parte, in camera hearing on a substantive issue quite

like this one. Virtually all judges in American courts under‐

stand that they simply may not do what this judge did. This

hearing was an extraordinary, apparently unprecedented, de‐

parture from the most basic standards of criminal procedure

in our system of criminal justice: “The very premise of our

adversary system of criminal justice is that partisan advocacy

on both sides of a case will best promote the ultimate objective

that the guilty be convicted and the innocent go free.” United

States v. Cronic, 466 U.S. 648, 655 (1984), quoting Herring v.

New York, 422 U.S. 853, 862 (1975).

By questioning the accused directly, the trial judge here

improvised a procedure that abandoned that “very premise

of our adversary system of criminal justice.” Then he prohib‐

ited defense counsel from participating. This hearing thus vi‐

olated Schmidt’s Sixth Amendment right to the assistance of

counsel, which “has been understood to mean that there can

be no restrictions upon the function of counsel in defending a

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criminal prosecution in accord with the traditions of the ad‐

versary factfinding process that has been constitutionalized in

the Sixth and Fourteenth Amendments.” Herring, 422 U.S. at

857, quoted in Cronic, 466 U.S. at 656 n.15.

In any event, the Supreme Court has explained that 28

U.S.C. § 2254(d)(1) does not require “federal courts to wait for

some nearly identical factual pattern” before granting relief.

Panetti v. Quarterman, 551 U.S. 930, 953 (2007), quoting Carey

v. Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J., concurring in

judgment); see also Williams v. Taylor, 529 U.S. 362, 407 (2000)

(holding that state courts can unreasonably apply clearly es‐

tablished federal law to facts the Supreme Court has not con‐

sidered). “Nor does [§ 2254(d)(1)] prohibit a federal court

from finding an application of a principle unreasonable when

it involves a set of facts ‘different from those of the case in

which the principle was announced.’” Panetti, 551 U.S. at 953,

quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003). What mat‐

ters is the extent of guidance provided by relevant Supreme

Court precedents.

Here that guidance is extensive. The Supreme Court has

treated as a critical stage every stage of the criminal process

between arraignment and appeal that either addresses a sub‐

stantive issue or risks loss of a procedural right. Critical stages

include: a preliminary hearing at which defendant could

cross‐examine witnesses and otherwise test the evidence

against him; arraignments at which defenses must be as‐

serted; entry of a plea; pretrial identification through an in‐

person line‐up; pretrial interrogation by a government in‐

formant; sentencing hearings; and deferred sentencing hear‐

ings that revoke probation. See Coleman v. Alabama, 399 U.S.

at 9 (plurality); id. at 11 (Black, J., concurring) (preliminary

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hearing where defendant could test evidence to avoid indict‐

ment and build record for trial); Hamilton v. Alabama, 368 U.S.

at 54 (arraignment where defenses could be “irretrievably

lost, if not then and there asserted”); White v. Maryland, 373

U.S. 59, 60 (1963) (entry of plea); Moore v. Michigan, 355 U.S.

155, 156, 159 (1957) (entry of plea); United States v. Wade, 388

U.S. at 236–37 (pretrial in‐person identification); Massiah v.

United States, 377 U.S. 201, 206 (1964) (pretrial interrogation);

Townsend v. Burke, 334 U.S. 736, 740–41 (1948) (sentencing);

Mempa v. Rhay, 389 U.S. 128, 137 (1967) (deferred sentencing

and revocation of probation).

The Court has explained its decisions by focusing on the

consequences of the particular stage, and in particular on con‐

sequences for the defendant’s ability to receive a fair trial. See,

e.g., Wade, 388 U.S. at 227. Looking both at what the Supreme

Court has done and at what it has said shows beyond reason‐

able dispute that testimony on a contested substantive issue

is a critical stage of the proceedings. The Court has repeatedly

found that pretrial stages were critical as long as the accused

risked serious consequences affecting the fairness of the trial.

In the face of the extensive body of case law, the majority has

not identified any Supreme Court case even suggesting, let

alone holding, that a hearing comparable to the one in this

case was not a critical stage, or offered a plausible theory for

saying it was not.

The ex parte, in camera hearing certainly had the potential

to prejudice Schmidt’s defense. The Sixth Amendment analy‐

sis focuses on whether there is a potential for prejudice given

what or whom the uncounseled defendant must confront and

what counsel could do later to fix the defendant’s mistakes.

E.g., Ash, 413 U.S. at 313, 317; Coleman, 399 U.S. at 7 (plurality);

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id. at 11 (Black, J., concurring); Wade, 388 U.S. at 227. In this

case, Schmidt was asked to show before trial that he could

meet the burden of production to go forward at trial with his

only defense in mitigation. No stage was more critical. What

happened in the judge’s chambers settled Schmidt’s fate.

The risks for Schmidt were evident. Without assistance of

counsel, he faced the risks that the judge might lose sight of

the elements of adequate provocation or might fail to separate

the wheat from the extensive chaff in Schmidt’s rambling an‐

swers. There was also a risk that Schmidt would help the

judge, perhaps unconsciously, convert the hearing into a

mini‐trial on the ultimate merits of the defense rather than a

debate about only the burden of production. If Schmidt had

met the burden of production—and only that burden—he

would have had the right to present his evidence and to argue

his defense to the jury. The trial judge’s oral ruling suggests

that this risk might have been realized here: “The Court finds

that the circumstances that led to the death of Kelly Wing did

not involve a provocation and it was not an adequate provo‐

cation and denies the motion.” That conclusion sounds a lot

more like a decision on the ultimate merits of the defense than

a decision on the burden of production.

In addition, Schmidt’s counsel could not fix later the harm

done by Schmidt’s rambling answers. The judge, having si‐

lenced counsel in the ex parte hearing, rejected the defense

shortly after the hearing ended. When counsel tried to revisit

the issue shortly before trial, the judge refused, saying he had

already made his decision. Because counsel could not later

undo the harm to Schmidt, the risk of prejudice at the eviden‐

tiary hearing affected his trial.

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Finally, there should be no doubt that Schmidt could have

benefited from his attorney’s help at the hearing. In Ferguson

v. Georgia, 365 U.S. 570, 594–96 (1961), the Supreme Court ex‐

plained the need for counsel in a context very close to this

case. At that time, Georgia prohibited the accused from testi‐

fying in his own defense, but state law allowed the accused to

make an unsworn statement to the jury. In making such a

statement, however, the accused ordinarily had to do so with‐

out questioning by his counsel to guide him.

The Supreme Court held in Ferguson that the accused had

a right to have his lawyer question him to help elicit his state‐

ment. In explaining this conclusion, the Court quoted Chief

Justice Cooley, the nineteenth‐century jurist from Michigan,

in a lengthy passage that recognizes how essential a lawyer’s

help can be, and that fits Schmidt’s case well:

But to hold that the moment the defendant

is placed upon the stand he shall be debarred of

all assistance from his counsel, and left to go

through his statement as his fears or his embar‐

rassment may enable him, in the face of the con‐

sequences which may follow from imperfect or

unsatisfactory explanation, would in our opinion

be to make, what the statute designed as an im‐

portant privilege to the accused, a trap into which

none but the most cool and self‐possessed could place

himself with much prospect of coming out un‐

harmed. An innocent man, charged with a hei‐

nous offence, and against whom evidence of

guilt has been given, is much more likely to be

overwhelmed by his situation, and embar‐

rassed, when called upon for explanation, than

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the offender, who is hardened in guilt; and if he

is unlearned, unaccustomed to speak in public as‐

semblies, or to put together his thoughts in consecu‐

tive order any where, it will not be surprising if his

explanation is incoherent, or if it overlooks important

circumstances.

365 U.S. at 595–96 (emphases added), quoting Annis v. People,

13 Mich. 511, 519–20 (1865) (reversing conviction where trial

judge had not allowed defense counsel to remind defendant

he had omitted a material fact from his statement).

Schmidt was not innocent, but the danger that Ferguson

described came to pass here. Without the guidance of coun‐

sel’s questioning, Schmidt provided a rambling and dis‐

jointed narrative, much like the defendants in Ferguson and

Annis. Even without the assistance of counsel, Schmidt’s ac‐

count of the circumstances came close to supporting his de‐

fense in mitigation. (The state appellate court said that was a

“close question.”) The “Assistance of Counsel for his defence”

could have helped Schmidt organize the facts, present a co‐

herent and legally relevant response, and meet the burden of

production. Without counsel acting in that role at this critical

stage, “a serious risk of injustice infects the trial itself.” Cronic,

466 U.S. at 656, quoting Cuyler v. Sullivan, 446 U.S. 335, 343

(1980).

The majority, however, struggles with the critical‐stage is‐

sue, unsure whether it should focus on the entire pretrial eval‐

uation of Schmidt’s mitigation defense or on only Schmidt’s

interrogation by the judge. Precedent and common sense

show that both are properly considered critical stages for pur‐

poses of the Sixth Amendment.

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In terms of precedent, for example, Ferguson shows that

when the accused tells the trier of fact his story, that’s a critical

stage by itself. Denying assistance of counsel for just that part

of the trial required reversal, though counsel was present and

active in defending during the rest of the trial. See also, e.g.,

Herring, 422 U.S. at 857 (closing argument was critical stage).

In terms of common sense, consider the alternative view

adopted by the state appellate court, that Schmidt’s testimony

was not itself a critical stage. If that were correct, then the

judge could have excluded Schmidt’s lawyer entirely without

violating the right to counsel. Yet in light of the Supreme

Court’s many decades of right‐to‐counsel decisions, it is hard

to imagine a more clear‐cut example of an unconstitutional

denial of counsel. Schmidt was entitled to the assistance of

counsel both while he was testifying and throughout the pre‐

trial proceeding, just as he was throughout the prosecution.

On the other side of the coin, neither the Wisconsin appellate

court, the state’s lawyers, nor the majority has offered a the‐

ory for treating Schmidt’s testimony as anything other than a

critical stage that can be reconciled with the Supreme Court’s

expansive treatment of the right to counsel.1

B. The Violation of Schmidt’s Right to Counsel

The judge’s order silencing Schmidt’s lawyer during the

interrogation violated Schmidt’s right to counsel. The state

1 The majority questions whether it’s possible to have “critical stages

within critical stages.” Ante at 16. Of course it is. A trial is a critical stage;

so is just the trial testimony of an eyewitness to the crime. A motion to

suppress is a critical stage; so is just the testimony of the police officer that

the accused consented to the search. It would be unreasonable to conclude

otherwise and to think the accused could be denied counsel for any of

those portions of the prosecution.

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courts’ different conclusion was, in terms of § 2254(d)(1), an

unreasonable application of clearly established Federal law,

as determined by the Supreme Court of the United States.

The Sixth Amendment, of course, guarantees the effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668,

686 (1984); Cronic, 466 U.S. at 654; McMann v. Richardson, 397

U.S. 759, 771 (1970). A lawyer can be constitutionally

ineffective either because of the lawyer’s own errors or

because the government interferes with the lawyer’s

performance. Strickland, 466 U.S. at 687, 692; Cronic, 466 U.S.

658–60 (categorizing circumstances when government

interference with attorney performance violates Sixth

Amendment and prejudice is presumed). Interference is what

happened here, by judicially‐enforced silence.

1. The Presumption of Prejudice

The government violates the Sixth Amendment when it

interferes to such an extent that, “although counsel is availa‐

ble to assist the accused,” the “likelihood that any lawyer,

even a fully competent one, could provide effective assistance

is so small that a presumption of prejudice is appropriate

without inquiry into the actual conduct.” Cronic, 466 U.S. at

659–60. The Supreme Court has applied the presumption of

prejudice to a wide variety of forms of interference with coun‐

sel at all stages of prosecutions. And it has done so where the

interference fell well short of what the majority calls a “com‐

plete” denial of counsel.

As early as Powell v. Alabama, the Court held that “defend‐

ants were not accorded the right of counsel in any substantial

sense” when the court appointed defense lawyers for the

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Scottsboro Boys but did so on the morning of trial, giving

them no adequate time to prepare for trial. 287 U.S. at 57–58.

In Ferguson v. Georgia, the Court found unconstitutional a

rule that prohibited defense counsel—though physically pre‐

sent at trial and assisting in all other portions of the trial—

from directly examining a defendant who chose to speak in

his own defense. 365 U.S. at 596.

In Geders v. United States, the Court found that “an order

preventing petitioner from consulting his counsel ‘about any‐

thing’” overnight during trial “impinged upon his right to the

assistance of counsel.” 425 U.S. 80, 91 (1976).

In Brooks v. Tennessee, the Court held that a rule requiring

a defendant to testify first or not at all deprived the accused

of “the ‘guiding hand of counsel’ in the timing of this critical

element of his defense.” 406 U.S. 605, 612–13 (1972).

In Herring v. New York, the Court held that complete denial

of counsel’s ability to offer a summation was “a denial of the

basic right of the accused to make his defense.” 422 U.S. at

859.

And in Holloway v. Arkansas, the Court found that the

“mere physical presence of an attorney does not fulfill the

Sixth Amendment guarantee” when the state refused to ap‐

point counsel free of conflicts of interest. 435 U.S. 475, 490

(1978). The lawyer’s “conflicting obligations … effectively

sealed his lips on crucial matters.” Id.

In all of these cases, the Court explained in Cronic, the in‐

terference with defense counsel had led to a presumption of

prejudice. 466 U.S. at 659–61. The Court added in Cronic that

it had “uniformly found constitutional error” when counsel

was “either totally absent, or prevented from assisting the accused

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during a critical stage.” 466 U.S. at 659 n.25 (emphases added)

(collecting Supreme Court’s cases).

Given these cases and the Court’s own summary of them,

it is simply not reasonable to conclude that the physical pres‐

ence of a silenced lawyer satisfies the Sixth Amendment or

avoids the presumption of prejudice. Schmidt’s counsel was,

in the trial judge’s own words, “just … present” and “not say‐

ing anything” during the hearing. The judge told Schmidt—

and assured the prosecutor—that his lawyer would not speak

during the hearing. Once in chambers, the judge repeated the

command that Schmidt’s lawyer not participate. And

throughout the ex parte hearing, Schmidt spoke uninterrupted

by his counsel for long enough to fill thirty‐five transcript

pages. The judge addressed Schmidt directly, not his lawyer.

Consistent with the judge’s assurance to the prosecutor, the

judge never gave the lawyer an opportunity to question

Schmidt himself, to focus on key facts or to fill in gaps.

The state—in the person of the judge—thus prevented

Schmidt’s lawyer from performing the “role that is critical to

the ability of the adversarial system to produce just results.”

Strickland, 466 U.S. at 685. Schmidt’s lawyer was not allowed

to speak while the judge conducted his own interrogation of

Schmidt on the most important issue in his defense. It was ob‐

jectively unreasonable for the state court to conclude that

Schmidt’s counsel could have provided effective assistance

and meaningfully tested the arguments against the provoca‐

tion defense by “not saying anything.” See Cronic, 466 U.S. at

656, citing Anders v. California, 386 U.S. 738, 743 (1967) (sum‐

marizing Supreme Court precedent requiring counsel acting

as an advocate).

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2. The Majority’s Erroneous Premises

The majority concedes that Schmidt was denied counsel

“to an extent,” ante at 18, but justifies denial of habeas relief

on the theory that Schmidt’s deprivation of counsel was not

“complete,” so that the presumption of prejudice does not ap‐

ply. The majority offers two branches of reasoning to support

this conclusion. Both run contrary to clear Supreme Court

precedents on the right to counsel.

a. Denial for Part of a Critical Stage?

One branch of reasoning requires the majority to take

sides on the issue it says it does not decide: whether to con‐

sider Schmidt’s interrogation as a critical stage by itself. To

conclude that the denial of counsel was not complete, the ma‐

jority expands the lens to view the entire pretrial proceeding

to evaluate the mitigation defense: “Schmidt’s lawyer filed

the notice of the provocation defense, argued for its applica‐

tion during court hearings, briefed the law, and submitted a

detailed offer of proof and an annotated witness list.” Ante at

17. That is all true but beside the point, as a matter of fact and

law.

As a matter of fact, the judge clearly had not made up his

mind based on that information submitted with the lawyer’s

assistance. The decision point for the judge was his in camera

interrogation. Shortly after it ended, the judge made a final

decision that Schmidt would not be allowed to present his de‐

fense to the jury. Schmidt was denied counsel during that crit‐

ical event due to the court’s order silencing his lawyer.2

2 Since Schmidt’s testimony in the in camera hearing was so central to

the judge’s decision, it is difficult to understand the state appellate court’s

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As a matter of law, allowing a defense lawyer to submit

written and oral arguments cannot justify excluding or silenc‐

ing the lawyer for his client’s oral testimony. Consider, for ex‐

ample, a motion to suppress evidence in a criminal case. The

defense lawyer submits a brief and affidavits in advance of

the evidentiary hearing and then makes an opening state‐

ment. Could the judge then send the lawyer away (or silence

her) during the live witness testimony, or even the defend‐

ant’s own testimony? Surely not, yet under the majority’s ra‐

tionale, it would seem to be acceptable for the judge simply to

excuse the defense lawyer while her client is cross‐examined,

whether in a hearing on a motion to suppress or at trial. After

all, the lawyer would have participated in all other aspects of

the hearing or trial. Under the majority’s reasoning, there

would not be a “complete” denial of counsel at that critical

stage of the trial.

This reasoning runs contrary to Ferguson and Herring,

among other cases. In both, a state court prevented counsel

from providing effective assistance at a critical stage within a

larger critical stage. I am aware of no support for the major‐

ity’s logic in the Supreme Court’s critical‐stage jurisprudence,

and I hope that no court would follow the majority’s logic to

the conclusion allowing denial of counsel for “part” of any

critical stage. Yet the majority’s insistence that only a suppos‐

edly “complete” denial of counsel supports a presumption of

prejudice certainly points that way.

treatment of that hearing as not a critical stage but “merely a supplemen‐

tary proceeding conducted for [Schmidt’s] benefit.” See Schmidt, 2012 WI

App. 113 ¶ 46, 344 Wis. 2d at 362, 824 N.W.2d at 852.

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b. Denial of Counsel Need Not Be “Complete”

So let’s shift back to treat the in camera examination itself

as a critical stage. It is beyond dispute that Schmidt’s counsel

was silenced for the entirety of the judge’s questioning, and

the judge never modified his order to offer counsel an oppor‐

tunity to supplement.

The majority builds its entire decision on the premise that

Supreme Court precedent requires a “complete” denial of

counsel to invoke the presumption of prejudice. See ante at

17–26. That premise is demonstrably wrong. Start with United

States v. Cronic, where the Court described the “complete de‐

nial of counsel” as the “[m]ost obvious” situation for presum‐

ing prejudice. 466 U.S. at 659. It is surely correct that a “com‐

plete” denial of counsel is sufficient to invoke the presump‐

tion of prejudice, but Cronic and other cases cannot be read to

say a “complete” denial is necessary to invoke that presump‐

tion.

In that same paragraph, Cronic dropped a footnote that

shows the majority’s reading of Supreme Court precedent is

simply wrong:

The Court has uniformly found constitu‐

tional error without any showing of prejudice

when counsel was either totally absent, or pre‐

vented from assisting the accused during a critical

stage of the proceeding. See, e.g., Geders v. United

States, 425 U.S. 80 (1976); Herring v. New York,

422 U.S. 853 (1975); Brooks v. Tennessee, 406 U.S.

605, 612–613 (1972); Hamilton v. Alabama, 368

U.S. 52, 55 (1961); White v. Maryland, 373 U.S. 59,

60 (1963) (per curiam); Ferguson v. Georgia, 365

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U.S. 570 (1961); Williams v. Kaiser, 323 U.S. 471,

475–476 (1945).

466 U.S. at 659 n.25 (emphases added). Of the cited cases,

Geders, Herring, Brooks, and Ferguson fit the description that

counsel was “prevented from assisting the accused during a

critical stage of the proceeding.” (In Hamilton, White, and Wil‐

liams, the accused had no counsel at a critical stage.)

In the text, Cronic then explained that the presumption of

prejudice applied in the Scottsboro Boys case, Powell v. Ala‐

bama, because the same‐day appointment of counsel in the

capital case made it so unlikely that even a fully competent

lawyer could provide effective assistance. 466 U.S. at 659–61.

Cronic went on to collect other cases where counsel were pre‐

sent but forced to go to trial on schedules that made effective

assistance impossible. 466 U.S. at 661 n.28. Footnote 28 also

explained that ineffectiveness is presumed (i.e., prejudice is

presumed) when counsel “actively represented conflicting in‐

terests,” citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980);

Flanagan v. United States, 465 U.S. 259, 268 (1984); Holloway v.

Arkansas, 435 U.S. at 489–90; and Glasser v. United States, 315

U.S. 60, 67–77 (1942).

In short, while a “complete” denial of counsel is sufficient

to invoke the presumption of prejudice, the Cronic opinion it‐

self rebuts the majority’s assertion that “the denial must be

‘complete’ to warrant the presumption of prejudice.” Ante at

14.3

3 Given the clear language in Cronic discussed above, I do not see how

the majority can describe this account as a “loose reading of Cronic.” Ante

at 21.

51a

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Nor do later cases fill in that gap for the majority. Roe v.

Flores‐Ortega, 528 U.S. 470, 483 (2000), held that a defense law‐

yer’s refusal to file a notice of appeal upon his client’s request

was ineffective per se, requiring relief in the form of permis‐

sion to pursue an appeal without requiring proof of prejudice.

The Flores‐Ortega opinion quoted and cited cases to the effect

that a complete denial of counsel supports a presumption of

prejudice. Id. at 483, citing Robbins, at 286 (“denial of counsel

altogether … warrants a presumption of prejudice”), and Pen‐

son v. Ohio, 488 U.S. 75, 88–89 (1988) (“complete denial of

counsel on appeal requires a presumption of prejudice”).

Again, these comments to the effect that a “complete” denial

of counsel invokes the presumption of prejudice do not show

that only a complete denial will suffice. And the language in

Flores‐Ortega cannot reasonably be read to erase from the

books Cronic, Holloway, Geders, Herring, Brooks, Powell, and

Ferguson, which show that the presumption of prejudice ap‐

plies to less‐than‐complete denials of counsel when a court

makes it impossible for counsel to provide effective assis‐

tance.

To support its requirement of “complete” denial, the ma‐

jority also cites Wright v. Van Patten, 552 U.S. 120, 125 (2008),

where the Court held that its precedents did not require a pre‐

sumption of prejudice where a state court allowed the defense

lawyer to appear at a guilty‐plea hearing by speakerphone.

Wright quoted, among other things, the critical note 25 from

Cronic, saying that prejudice is presumed when counsel is ei‐

ther totally absent or prevented from assisting the accused

during a critical stage of the proceeding. 552 U.S. at 125.

Wright did not impose a new requirement of “complete” de‐

nial of counsel, erasing in passing Cronic and the cases that it

(and I have) cited. Here’s the key passage from Wright:

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Our precedents do not clearly hold that

counsel’s participation by speakerphone should

be treated as a “complete denial of counsel,” on

par with total absence. Even if we agree with

Van Patten that a lawyer physically present will

tend to perform better than one on the phone, it

does not necessarily follow that mere telephone

contact amounted to total absence or “prevented

[counsel] from assisting the accused,” so as to entail

application of Cronic. The question is not

whether counsel in those circumstances will

perform less well than he otherwise would, but

whether the circumstances are likely to result in

such poor performance that an inquiry into its

effects would not be worth the time.

552 U.S. at 125 (emphasis added). This passage from Wright

also cannot be fairly read to impose a new requirement of

“complete” denial of counsel. It restated the Cronic standard,

which, as shown above, allows the presumption of prejudice

in a wide range of circumstances in which a trial court pre‐

vents a lawyer who is present from providing effective assis‐

tance. And the lawyer in Wright participated in a plea hearing

by speakerphone. He could at least be heard. That cannot rea‐

sonably be compared to this case, where the judge’s order si‐

lenced the lawyer.

To support its assertion that only a “complete” denial of

counsel will invoke the presumption of prejudice, the major‐

ity also quotes our decision in Kitchen v. United States, 227 F.3d

1014 (7th Cir. 2000). The majority writes: “In Kitchen, we de‐

scribed the Court’s complete‐denial cases (specifically in the

appellate‐stage context) as establishing that the presumption

53a

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of prejudice applies only when ‘defendants have had no assis‐

tance of counsel for any issues.’ 227 F.3d at 1020–21 (emphases

in original) (citing Flores‐Ortega, 528 U.S. at 483).” Ante at 19.

The critical “only” in that sentence comes from the majority

here, not from Kitchen, let alone from the Supreme Court. The

same is true for all of the majority’s other attempts to intro‐

duce “only” into the standard for presuming prejudice.

Instead, Kitchen correctly cited Cronic and Strickland re‐

garding the presumption of prejudice, 227 F.3d at 1020, and

concluded that Kitchen’s claim of ineffective assistance of ap‐

pellate counsel required proof of prejudice under Strickland.

Kitchen had in fact had counsel on appeal who pursued sev‐

eral issues, including some that were successful. We correctly

treated Kitchen’s claim as one challenging his lawyer’s strate‐

gic choice of issues to pursue on appeal. 227 F.3d at 1021. Hav‐

ing appellate counsel who chooses which issues to pursue

cannot reasonably be compared with having a lawyer whom

the trial judge has silenced. Kitchen does not support the ma‐

jority’s attempt to impose “complete” denial as a new require‐

ment for the presumption of prejudice.

The majority also argues that a state court could reasona‐

bly conclude that the mere physical presence of counsel

should defeat the presumption of prejudice. To support this

notion, the majority quotes two of our precedents. Yet even

the majority acknowledges the quoted passages from those

two cases are demonstrably wrong. In Morgan v. Hardy, 662

F.3d 790 (7th Cir. 2011), we wrote: “The Supreme Court has

consistently limited the presumption of prejudice to cases

where counsel is physically absent at a critical stage.” Id. at

804, citing Penson v. Ohio, 488 U.S. 75, 88 (1988) (withdrawal

of appellate counsel in criminal case), White v. Maryland, 373

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U.S. 59, 60 (1963) (no counsel for entry of plea in capital case),

and Hamilton v. Alabama, 368 U.S. 52, 54–55 (1961) (no counsel

for arraignment where defenses could be lost if not asserted).

That passage in Morgan had been copied verbatim, including

even the citations and their parentheticals, from the second

case the majority cites, McDowell v. Kingston, 497 F.3d 757, 762

(7th Cir. 2007), though Morgan did not cite McDowell.

Contrary to that language in Morgan and McDowell, and as

shown above, the Supreme Court in fact has decided quite a

few cases applying a presumption of prejudice where counsel

were physically present but prevented in a variety of ways

from providing effective assistance. E.g., Holloway, 435 U.S. at

490 (lawyer silenced on key issue by conflict of interest); Her‐

ring, 422 U.S. at 859 (closing argument prohibited); Geders, 425

U.S. at 91 (overnight consultation prohibited during trial);

Brooks, 406 U.S. at 609–12 (lawyer required to put defendant

on witness stand first or not at all); Ferguson, 365 U.S. at 596

(no assistance when defendant made his statement to trial

jury); and Powell, 287 U.S. at 57–58 (inadequate time to pre‐

pare).

The majority even acknowledges that the dicta in Morgan

and McDowell were wrong as a matter of fact. Yet to deny

Schmidt the benefit of the presumption of prejudice when his

lawyer was physically present but silenced, the majority of‐

fers the following astonishing excuse: “we do not think a state

court unreasonably errs for understanding the Court’s deci‐

sions in the same way that we have.” Ante at 19. This remark‐

able observation is wrong in two basic ways. First, it patron‐

izes the state courts, which did not make this error of thinking

that mere physical presence was enough, let alone cite Morgan

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or McDowell. Second, our erroneous dicta did not err in under‐

standing the Supreme Court’s decisions. They erred by over‐

looking those decisions. Oversights in our legal research could

not somehow create ambiguity in the Court’s case law.4

The majority correctly acknowledges that Ferguson v. Geor‐

gia offers strong support for Schmidt’s claim for denial of

counsel. Ante at 20. Recall that in Ferguson, state law prohib‐

ited the defense lawyer from calling the accused to the wit‐

ness stand and questioning him in the ordinary fashion. In‐

stead, the accused was required to make any statement on his

own behalf on his own, in narrative fashion, without guid‐

ance from a lawyer’s questioning. 365 U.S. at 571–72.

The majority offers several proposed distinctions to avoid

applying Ferguson to the denial of counsel in this critical stage

of the prosecution:

Ferguson held only that a state law effectively

banning counsel from eliciting his client’s trial

4 McDowell at least included a footnote recognizing that physical ab‐

sence was not actually required to apply the presumption of prejudice,

citing cases where counsel fell asleep during trial. 497 F.3d at 762 n.2, cit‐

ing Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (en banc), Tippins v.

Walker, 77 F.3d 682, 686 (2d Cir. 1996), and Javor v. United States, 724 F.2d

831, 833 (9th Cir. 1984). The results in McDowell and Morgan did not de‐

pend on their erroneous “physical presence” dicta. In McDowell, the issue

was a tactical choice by defense counsel, not a court‐imposed gag. We held

that the state courts did not act unreasonably by applying Strickland v.

Washington and its requirement that prejudice from supposedly ineffec‐

tive assistance be shown rather than presumed. 497 F.3d at 763. And Mor‐

gan was never denied counsel. At least one defense lawyer was both phys‐

ically present and able to represent him throughout his trial. 662 F.3d at

804.

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testimony was unconstitutional. It did not es‐

tablish that defendants have an absolute right to

have their counsel elicit any important testi‐

mony, or else prejudice will be presumed.

Ante at 20–21. The majority also notes that Ferguson con‐

cerned a defendant’s statements about his innocence during a

jury trial, whereas Schmidt’s situation concerned his response

to questions, in part guided by his written offer of proof, in

chambers regarding the admissibility of a defense. According

to the majority, unlike with Schmidt’s situation, “Ferguson

worried about the ‘tensions of a trial,’ embarrassment before

‘public assemblies,’ the chance to establish a defendant’s ‘in‐

nocence,’ and the risk that he could ‘overlook[ ] important’ ex‐

culpatory facts.” Ante at 21, quoting Ferguson, 365 U.S. at 594–

96.

The majority assures us that these distinctions matter be‐

cause “none of those worries” apply here. That’s hard to ac‐

cept at face value. In terms of tension, no matter how many

people were in the room, the stakes could not have been

higher for Schmidt: life in prison versus a chance at a term of

years he might survive. Ferguson spoke in terms of an accused

who is “unaccustomed to speak in public assemblies, or to put

together his thoughts in consecutive order any where.” 365

U.S. at 595–96. And while Schmidt may or may not have over‐

looked any exculpatory facts, he certainly flooded the judge

with lots of irrelevant and distracting detail in his rambling

narrative, which conflicted, at least in the judge’s mind, with

the lawyer’s summary offer of proof. See ante at 6.

More important, when considering the majority’s pro‐

posed distinctions, it’s essential to remember that Ferguson

simply does not stand alone, in terms of precedent, logic, or

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common sense. The suggestion that its logic could be limited

to only one critical stage—trial testimony—runs counter to

the entire sweep of the Supreme Court’s critical‐stage juris‐

prudence. Is the majority’s theory that even if Ferguson estab‐

lished a rule for trials, a court may deny the accused the assis‐

tance of a lawyer in presenting his testimony in other critical

pretrial proceedings? The majority’s theory for treating this

state court decision as reasonable depends on suggesting dis‐

tinctions between Ferguson and this case that the Supreme

Court’s right‐to‐counsel cases reject: between trial and sen‐

tencing (see, e.g., Mempa v. Rhay, 389 U.S. 128 (1967)), and be‐

tween trial and pretrial hearings (see all the pretrial critical‐

stage cases). The Supreme Court has made sufficiently clear

that criminal courts may not pick and choose among critical

stages, denying assistance of counsel for only some of them as

long as they allow counsel for others.

The majority criticizes this analysis of the right‐to‐counsel

cases as too general, connecting Powell, Holloway, Brooks, Her‐

ring, Geders, and Ferguson. Ante at 22–23. In the majority’s

view, drawing a general principle from such varied contexts

simply cannot meet the burden of showing that habeas relief

is required by Supreme Court precedent. After the 1996

amendment to § 2254(d)(1), that is often a good argument

against habeas relief, but not here. The point here is that the

Supreme Court itself has applied both the right to counsel and

the presumption of prejudice in so many different contexts,

regardless of distinctions the majority invokes here. The right

to counsel is broad. So is the presumption of prejudice,

though not as broad as the right to effective assistance of

counsel. Habeas relief cannot reasonably be denied on the ba‐

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sis of distinctions the Supreme Court itself has rejected by ex‐

tending both that right and the presumption of prejudice so

broadly and in so many contexts.

Ferguson stated clearly what I would expect trial judges

and lawyers to take for granted: only the most extraordinary

client could provide a narrative as effective as an account of

relevant facts set forth through a lawyer’s organized direct ex‐

amination. Ferguson is only the closest example of a series of

Supreme Court cases, cited above, holding that an accused

was denied counsel when the state silences the lawyer or oth‐

erwise prevents the lawyer from providing effective assis‐

tance to the accused in any critical stage.5

I noted earlier a potentially relevant line of cases, though

one that neither the state courts nor the majority have in‐

voked. It addresses defense lawyers who fall asleep or who

are briefly absent from trial. The practical consequences of a

silenced lawyer are akin to those of a sleeping lawyer. The

5 The majority also seeks support from a most unlikely source: Estelle

v. Smith, 451 U.S. 454 (1981). In that case, the Supreme Court held that a

defendant was entitled to the assistance of his lawyer in deciding whether

to submit to a psychiatric evaluation. Id. at 471. The Court did not hold

that the accused had a right to have his lawyer present during the psychi‐

atric examination itself. Id. at 470 n.14. The majority suggests: “Apply Es‐

telle’s reasoning here: Schmidt could, and did, consult with his counsel

before submitting to (and during) the in camera examination, and thus the

right‐to‐counsel problem does not necessarily follow.” Ante at 20.

The majority seems to be suggesting that a state court could reasona‐

bly extend a case addressing a private psychiatric examination to other

critical stages of the prosecution, including an interrogation on the merits

by the judge. That is an unreasonable stretch, and it’s a symptom of the

majority’s over‐correction in applying § 2254(d)(1), trying much too hard

to find and support a theory to deny relief.

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general rule is that a lawyer who is physically present but

asleep is not acting as a lawyer for the accused. See, e.g.,

United States v. Roy, 855 F.3d 1133, 1161 (11th Cir. 2017) (en

banc); McDowell, 497 F.3d at 762 n.2; Burdine v. Johnson, 262

F.3d 336, 341 (5th Cir. 2001) (en banc); Tippins v. Walker, 77

F.3d 682, 686 (2d Cir. 1996); Javor v. United States, 724 F.2d 831,

833 (9th Cir. 1984). The cases show, however, that courts have

allowed for de minimis exceptions to the presumption of prej‐

udice, applying the presumption if counsel slept through a

“substantial portion” of the trial. Roy, 855 F.3d at 1161 (col‐

lecting cases); see also Woods v. Donald, 135 S. Ct. 1372, 1377–

78 (2015) (reversing grant of habeas relief where one defense

lawyer chose to miss ten minutes of testimony about other de‐

fendants and had told judge in advance that the testimony

would not matter to his client’s defense).

To determine what constitutes a “substantial portion,”

courts look at “the length of time counsel slept, the proportion

of the trial missed, and the significance of the potion counsel

slept through.” Roy, 855 F.3d at 1162, quoting United States v.

Ragin, 820 F.3d 609, 622 n.11 (4th Cir. 2016). Another consid‐

eration is “whether the specific part of the trial that counsel

missed is known or can be determined.” Id.

Those cases of dozing or briefly absent lawyers help illus‐

trate how different the denial of counsel was in this case.

There was nothing de minimis about this denial of counsel. The

lawyer was silenced during the entire interrogation, and the

importance of this interrogation cannot be overstated. It was

the decisive presentation of evidence on the only disputed is‐

sue. Having been ordered by the judge not to participate in it,

Schmidt’s lawyer might as well have been asleep … or en‐

tirely absent.

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The right to counsel at all critical stages of a prosecution is

not narrow and fact‐bound. It is critical to our criminal justice

system, and the presumption of prejudice is essential to the

Supreme Court jurisprudence enforcing that right. The major‐

ity has lost sight of the fact that the accused is entitled to the

assistance of counsel during the entirety of a critical stage, not

just part of it. Schmidt needed counsel’s help in confronting

the burden of production on a complex factual and legal de‐

fense. The court’s silencing of his lawyer deprived him of

counsel at the most critical stage of his case. When the state

denies a defendant counsel at a critical stage, prejudice is pre‐

sumed. E.g., Bell v. Cone, 535 U.S. 685, 695–96 (2002); Cronic,

466 U.S. at 658–59 & n.25. This presumption should apply

here. We should reverse the denial of a writ of habeas corpus.

III. Schmidt’s Due Process Claim

Schmidt also argues that the state trial court deprived him

of his liberty without due process of law by denying him the

right to present his defense in mitigation to the jury. The Su‐

preme Court has long held that the accused in a criminal case

has a due process right to present a defense, and that arbitrary

or disproportionate limits on that right can violate the federal

Constitution. See, e.g., Holmes v. South Carolina, 547 U.S. 319,

329–31 (2006); Rock v. Arkansas, 483 U.S. 44, 55–57 (1987) (state

prohibited testimony from witnesses who had been hypno‐

tized); Crane v. Kentucky, 476 U.S. 683, 689–91 (1986) (state pro‐

hibited challenge to voluntariness of confession); Green v.

Georgia, 442 U.S. 95, 97 (1979) (at sentencing, state prohibited

hearsay from witness who testified that co‐defendant had

fired fatal shot); Chambers v. Mississippi, 410 U.S. 284, 302–03

(1973) (state hearsay rules barred reliable exculpatory evi‐

dence); accord, e.g., Kubsch v. Neal, 838 F.3d 845, 860–62 (7th

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Cir. 2016) (en banc) (same). This line of cases applies not only

to questions of innocence and guilt, but also to grounds for

mitigating punishment. Under this line of cases, state rules of

law that are ordinarily reasonable may, as applied, deprive a

particular defendant of liberty without due process.

To the extent Schmidt argues in this appeal that the state

trial court’s inquisitorial process—all questioning by the

judge rather than counsel—violated his due process rights,

that focus on the judicial questioning was not developed in

the state courts or the district court. At every stage of the pros‐

ecution and appellate and habeas review, including this ap‐

peal, however, Schmidt has raised a broader due process chal‐

lenge to the judge’s pretrial decision that prevented him from

presenting his “adequate provocation” defense to the trial

jury. His briefing has cited the Chambers/Holmes/Rock/Crane

line of Supreme Court due process cases and Wisconsin state

court decisions citing and applying them, including State v.

St. George, 2002 WI 50, ¶ 52, 252 Wis. 2d 499, 526–27, 643

N.W.2d 777, 788. His challenge in the state courts to the

judge’s pretrial decision was addressed primarily in terms of

state law: whether the judge erred in finding that Schmidt had

failed to produce “some evidence” of “adequate provoca‐

tion.” His argument included a clear assertion, however, that

he was also seeking relief on a federal due process theory.

Accordingly, on the question whether he fairly presented

his due process claim to the state courts and to the district

court, Schmidt has considerably stronger arguments than the

majority asserts. Since Schmidt’s claim for denial of his right

to counsel is so strong, however, I see no need to delve more

deeply into his due process theory.

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Conclusion

The violation of petitioner Schmidt’s right to counsel dur‐

ing the most critical stage of his prosecution was evident from

controlling Supreme Court precedent. The state courts’ rejec‐

tion of Schmidt’s claim was unreasonable under 28 U.S.C.

§ 2254(d)(1). We should reverse the denial of a writ of habeas

corpus and allow Schmidt a fair chance to show that he was

guilty of second‐degree murder rather than first degree mur‐

der.

63a

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 17-1727

SCOTT SCHMIDT,

Petitioner-Appellant,

BRIAN FOSTER,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 13-CV-1150 — Charles N. Clevert, Jr., Judge.

____________________

ARGUED JANUARY 4, 2018 — DECIDED MAY 29, 2018

____________________

Before WOOD, Chief Judge, and HAMILTON and BARRETT,

Circuit Judges.

HAMILTON, Circuit Judge. Petitioner Scott Schmidt murdered his wife, Kelly Wing-Schmidt. He admitted the murder

but tried to rely on the state-law defense of “adequate provocation” to mitigate the crime from first- to second-degree

homicide. A state trial judge denied Schmidt the assistance of

his counsel while the judge questioned Schmidt in a pretrial

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hearing on that substantive issue. Under law clearly established by the Supreme Court of the United States, the evidentiary hearing on that substantive issue was a “critical stage”

of Schmidt’s prosecution. By denying Schmidt the assistance

of counsel in that critical stage, the state court violated his

Sixth Amendment right to counsel.

The Sixth Amendment guarantees the accused in a criminal case “the Assistance of Counsel for his defence.” Because

“an unaided layman” has “little skill in arguing the law or in

coping with an intricate procedural system,” the Supreme

Court has long held that the right to counsel extends beyond

the trial itself. United States v. Ash, 413 U.S. 300, 307 (1973).

Criminal prosecutions involve “critical confrontations” before trial “where the results might well settle the accused’s

fate.” United States v. Wade, 388 U.S. 218, 224 (1967). The Sixth

Amendment therefore guarantees defendants “the guiding

hand of counsel” at all “‘critical’ stages of the proceedings.”

Id. at 224–25, quoting Powell v. Alabama, 287 U.S. 45, 69 (1932).

Since Schmidt admitted having murdered his wife, the

only substantive issue in the prosecution was whether he

acted under “adequate provocation,” which in Wisconsin

would mitigate homicide from first to second degree. The

prosecution opposed Schmidt’s intended defense, arguing before trial that he had failed to offer “some evidence” of provocation, which would be sufficient to shift the burden of persuasion to the state to disprove provocation beyond a reasonable doubt. The trial court chose to address this critical substantive issue before trial.

After a hearing where counsel debated the defense’s written summary of evidence of provocation, the trial court held

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an unprecedented ex parte, in camera hearing. The judge allowed Schmidt’s counsel to attend the hearing but, critically,

did not allow him to speak or participate. Instead, the judge

questioned Schmidt directly. After listening to Schmidt’s answers, the judge ruled that Schmidt could not present the adequate provocation defense at trial. A jury convicted Schmidt

of first-degree intentional homicide, and he was sentenced to

life in prison.

Schmidt sought post-conviction relief, and the Wisconsin

Court of Appeals held that the trial court did not violate

Schmidt’s Sixth Amendment right to counsel. That decision

was an unreasonable application of clearly established Supreme Court precedent guaranteeing counsel at all critical

stages of criminal proceedings, including whenever “potential substantial prejudice to defendant’s rights inheres in the

particular confrontation.” Wade, 388 U.S. at 227. Schmidt

therefore meets the stringent standards for habeas corpus relief under 28 U.S.C. § 2254(d)(1). 1

I. Factual & Procedural Background

In April 2009, Schmidt shot his wife, Kelly Wing-Schmidt,

seven times. She died in their driveway. When police officers

1 The usual relief in such a case would be to order the State either to

release Schmidt or to retry him. A different remedy may be appropriate

here. In the district court, the State requested the option to ask the state

trial court to modify the judgment of conviction to second-degree intentional homicide and to resentence Schmidt accordingly. In briefing in this

appeal, Schmidt says he agrees with that request. On remand, the district

court should consider that option, in addition to the usual choices of retrial

or release.

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arrived, they found Schmidt standing by her body. He quickly

admitted he had shot her.

A. The Trial Court Proceedings

Wisconsin charged Schmidt with first-degree intentional

homicide. Schmidt never denied shooting and killing Kelly,

but he intended to argue at trial that he acted with “adequate

provocation.” In Wisconsin, adequate provocation is an affirmative defense that mitigates intentional homicide from

first to second degree for defendants who “lack self-control

completely at the time of causing death.” Wis. Stat. §§ 939.44;

940.01(2)(a). To be “adequate,” the provocation must be “sufficient to cause complete lack of self-control in an ordinarily

constituted person.” § 939.44. If the defendant can produce

“some” evidence supporting adequate provocation before

trial, then the defendant may introduce evidence of the defense at trial. State v. Schmidt, 824 N.W.2d 839, 843 (Wis. App.

2012), citing State v. Head, 648 N.W.2d 413, 439 (Wis. 2002). The

prosecution must then disprove the defense beyond a reasonable doubt. Schmidt, 824 N.W.2d at 843, citing Head, 648

N.W.2d at 437–38.

Schmidt filed a pretrial motion disclosing that he would

present evidence of provocation through “false allegations,

controlling behaviors, threats, isolation, unfaithfulness, verbal abuse and arguments.” Schmidt planned to present evidence that his wife had abused him emotionally and physically throughout their marriage. He would have testified that

right before the shooting, he and Kelly had a heated argument

in which Kelly taunted him about an affair he had just discovered, told him their children were not actually his, and threatened to make up stories so that he would never see their children again. According to Schmidt, he lost self-control and

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shot his wife. The State objected to the evidence, arguing that

Schmidt’s disclosure lacked specificity and that the circumstances did not support an adequate provocation defense. The

State also argued that Schmidt did not clarify the timeframe

covered by his proposed evidence and that evidence dating

back too far would be irrelevant and prejudicial.

The court acknowledged the State’s concerns. Over

Schmidt’s objection, the court scheduled a hearing to determine whether Schmidt had met the some-evidence standard

and could present the defense at trial. Before the hearing,

Schmidt submitted two documents: an offer of proof summarizing the testimony of twenty-nine potential witnesses and a

legal analysis of the provocation defense with a timeline of

events from 2004 through the 2009 shooting.

The evidentiary hearing began in court with Schmidt, his

lawyer, and the prosecutor present. The judge was not prepared to decide on the paper submissions alone whether

Schmidt could meet the “some evidence” threshold for the

provocation defense. Schmidt’s lawyer objected to having to

expose his defense evidence before trial. The judge decided

that he should question Schmidt ex parte to assess the provocation defense. Schmidt’s counsel agreed that if the court intended to question Schmidt, it should do so in chambers outside of the prosecutor’s presence. The court then proposed to

the prosecutor that Schmidt’s counsel would attend the hearing in chambers, but would “just be present” and “not saying

anything.” The prosecutor agreed. Schmidt’s counsel did not

object, but nobody asked Schmidt if he was willing to go forward in this hearing, so critical to his fate, without the assistance of his lawyer.

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The trial judge, court reporter, Schmidt, and Schmidt’s

counsel proceeded to the judge’s chambers. The judge stated

that Schmidt “appears in person” and that “his attorney is

also present but is not participating in the hearing.” The court

then asked Schmidt an open-ended question about what was

on his mind when he shot Kelly. Schmidt gave the first of what

would be several rambling narrative responses:

The day I went over was April 17th. I hadn’t

slept in at least a week, week-and-a-half. And

I—it was like two days before that, I believe the

14th of April, the 14th or 15th of April I think it

was, that I found an e-mail on my work computer from a—of a reservation for my wife and

a guy that she supposedly was a friend with that

worked for Gold Cross Ambulance. And I

found that when I was at the fire station. I knew

of him, up until that point, that they were

friends.

Um, I had been out of the house for a couple

of weeks. And I walked there. I went to the fire

station, and I walked up to the house, because I

knew there were some issues with, um, Kelly

had threatened to take—these aren’t my f’ing

kids, that if she saw me at the house that she

didn’t want—I wasn’t going to be part of the

kids’ lives anymore, our two youngest children.

I just had a feeling that she’d probably call the

cops if I pulled in the driveway. So I parked at

the station, Fire Station 6, over on Lightning,

and I walked to the house.

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Actually, my main goal was, um, I had a job

to do. I was going to build a house for a retired

battalion chief up in Door County. And all my

tools, my job trailer, and everything was at our

house on JJ on Edgewood. I was at the time staying out at the lake—the lake house that I had—

had owned prior to us being married in Stockbridge. And there’s—I didn’t have any heat,

slept on the couch, there was no blankets. I

mean, it was—there were no dishes. I had—everything was—the house was empty. Gas was actually shut off because we—instead of paying

the bills there, I wanted to make sure the bills

were paid where the kids and Kelly were at … .

That first answer continued for fourteen transcript pages.

Thus began what the Wisconsin Court of Appeals called a

“rambling narrative” that spans thirty-five transcript pages.

Schmidt, 824 N.W.2d at 847. The trial court asked Schmidt the

same open-ended question about his mental state six times.

Each time Schmidt’s response was unfocused and confused

with irrelevant details.

Near the end of the questioning, the judge took a short

break for a telephone call. Schmidt’s lawyer asked if he could

talk to Schmidt. The judge responded that they should limit

discussion to reviewing the written offer of proof. After the

break, the judge asked Schmidt a few more questions before

ending the hearing. Later that day, the court orally announced

that “the circumstances that led to the death of Kelly Wing did

not involve a provocation” and denied Schmidt’s motion to

present the defense at trial, rejecting it conclusively.

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B. Post-conviction Processes

A jury convicted Schmidt of first-degree intentional homicide. 2 Schmidt moved for a new trial, arguing that he had

been denied his Sixth Amendment right to counsel and his

Sixth and Fourteenth Amendment right to present a defense.

The trial court denied the motion, concluding that Schmidt

had not met his burden of production to present the adequate

provocation defense. The trial court also concluded that

Schmidt was not denied counsel at the ex parte hearing because his counsel submitted the written offer of proof, made

an oral argument, and conferred with Schmidt during the recess for the judge’s telephone call.

Schmidt appealed, and the Wisconsin Court of Appeals affirmed. The Court of Appeals found that Schmidt had not met

the some-evidence standard, though the court called it “a

close question.” The court found that the ex parte interrogation

was a valid exercise of the trial judge’s discretion under state

law. Turning to the Sixth Amendment question, the Court of

Appeals found that the ex parte hearing was not a critical stage

of the proceedings at which Schmidt was entitled to counsel.

The court also reasoned that the hearing was not adversarial

and that counsel was available to advise Schmidt. The court

did not reach Schmidt’s claim that the hearing violated his

right to present a defense. The Wisconsin Supreme Court denied review.

Schmidt then sought habeas corpus relief in federal court,

raising the Sixth and Fourteenth Amendment claims. The district court denied relief on both. The district court considered

2 The jury also convicted Schmidt of recklessly endangering safety and

bail-jumping. He does not challenge those convictions.

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de novo Schmidt’s claim that he was denied the right to present

a defense and concluded that the Wisconsin evidence law did

not deprive him of that right because it protected a legitimate

interest and was not arbitrary or disproportionate. The court

next found that the deferential standard of review under the

Antiterrorism and Effective Death Penalty Act (AEDPA) governed the Sixth Amendment claim. See 28 U.S.C. § 2254(d).

The district court concluded that the Wisconsin Court of Appeals decision was not contrary to or an unreasonable application of Supreme Court precedent guaranteeing criminal defendants counsel at all critical stages. The district court therefore denied habeas relief but granted a certificate of appealability on both issues.

II. Analysis

The Wisconsin Court of Appeals rejected Schmidt’s Sixth

Amendment claim on the merits, and the facts are not disputed. Under AEDPA, a federal court therefore cannot grant

a writ of habeas corpus on that claim unless the state court

decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). A state court’s decision is unreasonable if it correctly identifies the controlling Supreme Court precedent but

“unreasonably extends” that “legal principle” to “a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.”

Williams v. Taylor, 529 U.S. 362, 407 (2000). To obtain federal

relief, Schmidt must show that the state court decision was

not just incorrect but “objectively unreasonable.” Id. at 409–

10; accord, e.g., Woodford v. Visciotti, 537 U.S. 19, 24–25 (2002)

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(per curiam). This standard is meant to be “difficult to meet.”

Harrington v. Richter, 562 U.S. 86, 102 (2011).

Even under this deferential standard, Schmidt is entitled

to a writ of habeas corpus. The state-court decision was an objectively unreasonable application of Supreme Court decisions on the right to counsel. The ex parte hearing was a critical

stage of the proceeding. Schmidt was guaranteed “the guiding hand of counsel” throughout it, see Powell, 287 U.S. at 69,

but he did not have that guidance because of the judge’s

ground rules for his inquisition of Schmidt, barring his counsel from participating. Because we grant Schmidt’s petition

based on the violation of his right to counsel, we do not reach

his claim that the trial court also denied his right to present a

defense.

A. “Critical Stage”

The Sixth Amendment guarantees that in “all criminal

prosecutions, the accused shall enjoy the right” to “have the

Assistance of Counsel for his defence.” The Supreme Court

has long recognized that the right applies not only at trial but

also at all “critical stages” of the adversary process. The first

question in this case is the scope of the Supreme Court’s precedents on what constitutes a “critical stage.”

A brief look at the history of the Sixth Amendment provides helpful context for understanding the scope of a defendant’s right to counsel in pretrial proceedings. In United States

v. Wade, 388 U.S. 218 (1967), the Supreme Court explained:

The Framers of the Bill of Rights envisaged a

broader role for counsel than under the practice

then prevailing in England of merely advising

his client in ‘matters of law,’ and eschewing any

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responsibility for ‘matters of fact.’ The constitutions in at least 11 of the 13 States expressly or

impliedly abolished this distinction. Powell v.

State of Alabama, 287 U.S. 45, 60–65; Note, 73 Yale

L.J. 1000, 1030–1033 (1964). ‘Though the colonial

provisions about counsel were in accord on few

things, they agreed on the necessity of abolishing the facts-law distinction; the colonists appreciated that if a defendant were forced to

stand alone against the state, his case was foredoomed.’ 73 Yale L.J., supra, at 1033–1034. This

background is reflected in the scope given by

our decisions to the Sixth Amendment’s guarantee to an accused of the assistance of counsel for

his defense. When the Bill of Rights was

adopted, there were no organized police forces

as we know them today. The accused confronted the prosecutor and the witnesses

against him, and the evidence was marshalled,

largely at the trial itself. In contrast, today’s law

enforcement machinery involves critical confrontations of the accused by the prosecution at

pretrial proceedings where the results might

well settle the accused's fate and reduce the trial

itself to a mere formality. In recognition of these

realities of modern criminal prosecution, our

cases have construed the Sixth Amendment

guarantee to apply to ‘critical’ stages of the proceedings. The guarantee reads: ‘In all criminal

prosecutions, the accused shall enjoy the right

* * * to have the Assistance of Counsel for his defence.’ (Emphasis supplied.) The plain wording of

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this guarantee thus encompasses counsel's assistance whenever necessary to assure a meaningful

‘defence.’

388 U.S. at 224–25 (footnotes omitted, emphasis added).

The Court has identified two historical reasons for the

right to counsel. First was the development of an “intricate

procedural system.” United States v. Ash, 413 U.S. 300, 307

(1973). As the Court explained:

A concern of more lasting importance was the

recognition and awareness that an unaided layman had little skill in arguing the law or in coping with an intricate procedural system. The

function of counsel as a guide through complex

legal technicalities long has been recognized by

this Court. […] The Court frequently has interpreted the Sixth Amendment to assure that the

‘guiding hand of counsel’ is available to those in

need of its assistance.

Id. at 307–08. Second was the development of the public prosecutor: “Another factor contributing to the colonial recognition of the accused’s right to counsel was the adoption of the

institution of the public prosecutor from the Continental inquisitorial system.” Id. at 308. “Thus, an additional motivation

for the American rule” that a criminal defendant is entitled to

counsel “was a desire to minimize imbalance in the adversary

system that otherwise resulted with the creation of a professional prosecuting official.” Id. at 309. An uncounseled defendant could not be expected to argue his case, navigate the

rules of evidence, or articulate his defenses with the same skill

as an “expert adversary,” the prosecutor. Id. at 310.

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Over time, the same became true of various pretrial steps

in prosecutions. With increasing frequency, defendants confronted issues before trial that previously would have surfaced at trial—issues like articulating defenses or disputing

the admissibility of evidence. With the history of the Sixth

Amendment in mind, the Court has repeatedly applied the

right to counsel to these critical confrontations “that might appropriately be considered to be parts of the trial itself,” that

is, steps when “the accused was confronted, just as at trial, by

the procedural system, or by his expert adversary, or by both.”

Id. at 310. The Court has called these confrontations “critical

stages.” See, e.g., Wade, 388 U.S. at 224; Hamilton v. Alabama,

368 U.S. 52, 53–54 (1961).

It is clearly established that criminal defendants are entitled to counsel at all critical stages of the criminal process, and

the case law on which stages are critical is extensive. The State

relies here on Carey v. Musladin, 549 U.S. 70 (2006), which explained that “clearly established Federal law” under

§ 2254(d)(1) includes only the Supreme Court’s holdings, not

its dicta. Id. at 74. In Carey, the Court rejected a Ninth Circuit

decision for reading Supreme Court precedent at too high a

level of generality. Id. at 75–76. Wisconsin uses Carey to argue

that no clearly established federal law applies to this case because the Supreme Court has not held that a hearing like the

extraordinary ex parte, in camera hearing here is a critical stage.

AEDPA deference does not go so far. A few months after

deciding Carey, the Court clarified that AEDPA does not require “federal courts to wait for some nearly identical factual

pattern” before granting relief. Panetti v. Quarterman, 551 U.S.

930, 953 (2007), quoting Carey, 549 U.S. at 81 (Kennedy, J., con-

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curring in judgment); see also Williams, 529 U.S. at 407 (holding that state courts can unreasonably apply clearly established federal law to facts the Supreme Court has not considered). “Nor does AEDPA prohibit a federal court from finding

an application of a principle unreasonable when it involves a

set of facts ‘different from those of the case in which the principle was announced.’” Panetti, 551 U.S. at 953, quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003).

What matters here is what the Supreme Court has done

and what it has said in deciding its many “critical stage”

cases, which we address next. Also, it is not surprising that

the Supreme Court has not considered an ex parte, in camera

hearing on a substantive issue quite like this one. “The very

premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the

ultimate objective that the guilty be convicted and the innocent go free.” United States v. Cronic, 466 U.S. 648, 655 (1984),

quoting Herring v. New York, 422 U.S. 853, 862 (1975). In this

case the trial court improvised an unprecedented procedure

that both abandoned that “very premise of our adversary system of criminal justice” to question the defendant directly and

prohibited defense counsel from participating. While trial

judges have discretion to question witnesses directly, this inquisitorial procedure in which defense counsel is silenced is

not compatible with the American judicial system. See Williams v. Wahner, 731 F.3d 731, 732–33 (7th Cir. 2013) (declaring

unlawful a federal judge’s practice of questioning prisonerplaintiff in ex parte hearing to decide material factual disputes

against the plaintiff, and comparing procedure to inquisitorial

procedures from European legal systems). As the Herring

Court explained further: “the right to the assistance of counsel

has been understood to mean that there can be no restrictions

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upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding

process that has been constitutionalized in the Sixth and Fourteenth Amendments.” 422 U.S. at 857, quoted in Cronic, 466

U.S. at 656 n.15.3

1. Confrontation

Turning first to what the Court has actually done, as the

State conceded at oral argument, the Court has treated as a

“critical stage” every stage of the criminal process between

arraignment and appeal that addresses a substantive issue or

risks loss of procedural rights. As examples, the Court has recognized the following as critical stages: a preliminary hearing

at which defendant could cross-examine witnesses and otherwise test the evidence against him; arraignments at which defenses must be asserted; entry of a plea; pretrial identification

3 By “inquisitorial,” we “don’t mean it was modeled on the proce-

dures employed by the Inquisition.” Henderson v. Wilcoxen, 802 F.3d 930,

931 (7th Cir. 2015). We refer to the “system of proof-taking used in civil

law, whereby the judge conducts the trial, determines what questions to

ask, and defines the scope and the extent of the inquiry.” Inquisitorial System, Black’s Law Dictionary (10th ed. 2014). As the Supreme Court has explained: “What makes a system adversarial rather than inquisitorial is not

the presence of counsel … but rather the presence of a judge who does not

(as an inquisitor does) conduct the factual and legal investigation himself,

but instead decides on the basis of facts and arguments pro and con adduced by the parties.” McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).

Although many countries continue to use inquisitorial systems of factfinding, our Constitution establishes an adversarial system. Cf. Henderson,

802 F.3d at 931 (“In modern usage an inquisitorial hearing is a hearing in

open court in which the judge examines the parties to the suit rather than

leaving examination to the lawyers, as in our legal system, which is adversarial rather than inquisitorial.”).

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through an in-person line-up; pretrial interrogation by a government informant; sentencing hearings; and deferred sentencing hearings that revoke probation. See Coleman v. Alabama, 399 U.S. 1, 9 (1970) (plurality); id. at 11 (Black, J., concurring) (preliminary hearing where defendant could test evidence to avoid indictment and build record for trial); Hamilton, 368 U.S. at 54 (arraignment where defenses can be “irretrievably lost, if not then and there asserted”); White v. Maryland, 373 U.S. 59, 60 (1963) (entry of plea); Moore v. Michigan,

355 U.S. 155, 156, 159 (1957) (entry of plea); Wade, 388 U.S. at

236–37 (pretrial in-person identification); Massiah v. United

States, 377 U.S. 201, 206 (1964) (pretrial interrogation); Townsend v. Burke, 334 U.S. 736, 740–41 (1948) (sentencing); Mempa

v. Rhay, 389 U.S. 128, 137 (1967) (deferred sentencing and revocation of probation).

The sheer number and range of these cases show that the

right to counsel at “critical stages” is not narrow and factbound. The Court has explained its decisions by focusing on

the consequences of the particular stage, and in particular on

consequences for the defendant’s ability to receive a fair trial.

In Wade, the Court summarized:

In sum, the principle of Powell v. Alabama

and succeeding cases requires that we scrutinize

any pretrial confrontation of the accused to determine whether the presence of his counsel is

necessary to preserve the defendant’s basic right

to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him

and to have effective assistance of counsel at the

trial itself. It calls upon us to analyze whether

potential substantial prejudice to defendant’s

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rights inheres in the particular confrontation

and the ability of counsel to help avoid that prejudice.

Wade, 388 U.S. at 227. In Mempa v. Rhay, the Court summarized its precedents as “clearly stand[ing] for the proposition

that” counsel is “required at every stage of a criminal proceeding where substantial rights of a criminal accused may be

affected.” 389 U.S. at 134. In Coleman v. Alabama, the Court

quoted the above passage from Wade and referred to it as a

“test” that the Court had consistently applied throughout its

critical-stage precedents. 399 U.S. at 8. And in Ash, the Court

stated that its “review of the history and expansion of the

Sixth Amendment counsel guarantee” demonstrated “that

the test utilized by the Court has called for examination of the

event in order to determine whether the accused required aid

in coping with legal problems or assistance in meeting his adversary.” 413 U.S. at 313.

It is true that many of the Court’s “critical-stage” cases address direct confrontations between the defendant and the

professional prosecutor, and that the prosecutor was not in

the room for the hearing at issue in this case. See, e.g., Coleman, 399 U.S. at 9 (preliminary hearing where defendant

could test prosecutor’s evidence before trial); Mempa, 389 U.S.

at 137 (deferred sentencing hearing where prosecutor argued

for revocation of probation). That is typically how proceedings are held when the rules of adversarial proceedings are

followed, but the Supreme Court’s clearly established precedent is not limited to adversarial confrontations where the

prosecution and/or police are literally in the room with the

accused. We cannot imagine that the Supreme Court would

tolerate a procedure in which the trial judge, without a valid

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waiver of the right to counsel, took the defendant alone into

chambers for questioning on the record on any substantive issue. The result is no different here, where the lawyer was

physically present but prohibited from speaking or otherwise

participating.

First, in Estelle v. Smith, 451 U.S. 454 (1981), the Court held

that a trial judge had violated the accused’s right to counsel in

a non-adversarial setting where the prosecutor was absent.

The judge “informally ordered” a psychiatrist to examine the

accused to determine competency to stand trial. Id. at 456–57,

457 n.1. The defendant was found competent to stand trial

and then found guilty at trial. At the penalty phase of the trial,

the judge then allowed the state to offer the contents of the

interview and the psychiatrist’s opinion to prove future dangerousness. The defense lawyer had not been notified in advance that the psychiatric examination would take place, let

alone that it would include the issue of future dangerousness.

Id. at 470–71, 471 n.15. The accused did not have his assistance

in deciding whether to submit to the examination. Id. at 471.

The Supreme Court held (unanimously) that the judge’s nonadversarial decision to order the psychiatric interview—with

only the accused and the psychiatrist present—was a critical

stage of the proceedings and that the accused had a right to a

lawyer in deciding whether to submit to it. Id. at 470–71. 4 Critically, the Court held that the defendant was entitled to counsel’s advice before the interview itself, because it “follows logically” from the Court’s “precedents that a defendant should

not be forced to resolve such an important issue ‘without the

4 The Court did not hold that the accused had a right to have his law-

yer present for the examination itself, but he had a right to the advice of

counsel in deciding whether to submit to it. 451 U.S. at 470 n.14.

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guiding hand of counsel.’” Id. at 471, quoting Powell, 287 U.S.

at 69. Resolving that issue—whether to submit to the evaluation—did not involve an in-person confrontation with the

prosecutor, the police, or any other agent of the state.

Similarly, in Geders v. United States, the Court found that

the defendant’s right to counsel had been violated when, during trial, the judge ordered the defendant not to consult with

his attorney during an overnight recess. 425 U.S. 80, 81 (1970).

The trial itself, of course, is a stage in the criminal process

where the defendant has a right to counsel (and the Court

therefore did not need to engage in a critical-stage analysis).

But the overnight recess was not a formal part of the trial proceedings and did not occur in the courtroom or in the prosecutor’s presence. Yet the defendant did not lose his right to

counsel when he left the courtroom and the traditionally adversarial setting. He required his counsel’s guidance overnight to make tactical decisions in light of the proceedings

against him. Id. at 88–89, 91. Importantly, the Court did not

analyze the overnight recess as a separate stage that may or

may not be critical by itself. Underlying both Smith and Geders

is the recognition that the accused needs and is entitled to the

assistance of counsel in making choices throughout the prosecution, regardless of whether the precise moment in question is “adversarial” in the sense that the professional prosecution or police are literally in the room at the time.

More generally, the Court has repeatedly applied the “critical stage” analysis by focusing on the consequences the accused faces in the particular stage of the case, not necessarily

on whether the prosecution or police are in the room. That is

clear from the critical “or” in Ash: “This review of the history

and expansion of the Sixth Amendment counsel guarantee

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demonstrates that the test utilized by the Court has called for

examination of the event in order to determine whether the

accused required aid in coping with legal problems or assistance in meeting his adversary.” 413 U.S. at 313 (emphasis

added).

Confirming the importance of that “or” in Ash, the Court

has recognized as critical stages several proceedings that require defendants to make procedural decisions. In those

cases, it was the defendant’s inability to cope with the procedural system—not any face-to-face confrontation with the

prosecutor—that drove the Court’s holdings. See, e.g., Hamilton, 368 U.S. 52 (finding Alabama arraignment a critical stage

because the defendant had to assert or forfeit defenses, without any mention of prosecutor or contested issues); White, 373

U.S. 59 (finding Maryland preliminary hearing a critical stage

because defendant had to enter a plea, without any mention

of prosecutor or contested issues); Smith, 451 U.S. 454 (finding

decision to submit to psychiatric evaluation on competence to

stand trial a critical stage, without any mention of prosecutor

or contested issues).

And this makes sense. When a defendant confronts a

purely procedural question—even outside of the courtroom

and outside of the prosecutor’s presence—he does so in response to the adversary proceedings that the prosecution has

brought against him. One motivation for the right to counsel

“was a desire to minimize the imbalance in the adversary system,” which recognizes that a layperson does not have the

same skill or knowledge necessary to navigate the law. Ash,

413 U.S. at 309 (emphasis added). After all, requiring an uncounseled defendant to make a consequential procedural decision can easily undermine the desired balance between the

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prosecutor and the accused, prejudice the defense, and reduce

“the trial itself to a mere formality.” Wade, 388 U.S. at 224 (explaining that goal of right to counsel at critical stages is to preserve the integrity of the trial).

By looking both at what the Supreme Court has done and

at what it has said, it is clear that an evidentiary hearing on a

contested substantive issue is a critical stage of the proceedings. There is no reason to think the result is different when

the judge moves half of the hearing into chambers and elicits,

through the judge’s own questioning, the defendant’s rebuttal

to the prosecutor’s opposition. Against the weight of the

many cases finding pretrial stages were critical as long as the

accused might face serious consequences affecting the fairness of the trial, the State has not identified any Supreme

Court case even suggesting, let alone holding, that a hearing

comparable to the one in this case was not a critical stage.

The Court has found stages not critical only when they are

non-adversarial and there is no risk that an accused might

make mistakes that a lawyer cannot cure before or at trial. In

Ash itself, for example, the Court distinguished between an

eyewitness identification by in-person lineup, which Wade

held is a critical stage, and a witness’s identification by looking at a photographic array, which is not. 413 U.S. at 317. At a

line-up, the defendant is present and confronts either law enforcement or the prosecutor. Without counsel’s observation

and guidance, “there is a grave potential for prejudice” because the uncounseled defendant is unable to identify a suggestive procedure and unlikely to be able to reconstruct a biased procedure at trial. Wade, 388 U.S. at 230–32, 236. A photographic array, by comparison, is only non-adversarial gathering of evidence outside of the defendant’s presence. There

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is “no possibility” that “the accused might be misled by his

lack of familiarity with the law or overpowered by his professional adversary.” Ash, 413 U.S. at 317. The Court reached a

similar conclusion in Gerstein v. Pugh when it found that the

probable cause determination, by itself, is not a critical stage.

420 U.S. 103, 120, 122 (1975). Probable cause is typically decided “by a magistrate in a nonadversary proceeding on hearsay and written testimony.” Id. at 120. It does not require the

defendant’s participation and its outcome cannot “impair defense on the merits.” Id. at 122.

The Supreme Court has clearly established that the right

to counsel extends to a pretrial evidentiary hearing on a contested, substantive issue, where an uncounseled defendant

risks decisive consequences for his prospects at trial. E.g.,

Coleman, 399 U.S. at 9 (plurality); id. at 11 (Black, J., concurring); Wade, 388 U.S. at 227, 236–37. In this case, the Wisconsin

Court of Appeals correctly recognized the general rule that

the Sixth Amendment guarantees counsel at all critical stages.

But the court strayed in finding that the ex parte hearing was

not a critical stage in Schmidt’s case.

The state court’s observation that the ex parte, in camera

proceeding was not adversarial, in the sense that the prosecutor was not in the room, thus missed the point. It unreasonably applied Supreme Court precedent and, frankly, ignored

reality in favor of a formalism that the Court has not adopted.

The ex parte, in camera hearing was not a distinct stage in

Schmidt’s case. It was part of the evidentiary hearing the court

held to address a substantive issue—the mitigating defense of

adequate provocation. That defense was certainly contested.

That is precisely why the judge held the hearing: to determine

whether the prosecution or defense had the better arguments

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on the adequate provocation defense. The prosecution opposed admission of the evidence related to the defense, while

Schmidt argued that he had met the threshold showing for

admissibility. Schmidt presented part of his side of the case in

the judge’s chambers, but that fact makes no difference given

what the Supreme Court has held to be critical stages. There

is no question that the overall hearing was an adversary proceeding. Nothing in the Supreme Court’s extensive criticalstage jurisprudence suggests that the hearing became any less

critical, or any less of a “trial-like confrontation,” when the

judge took the accused and his (silenced) lawyer into chambers to question him about the facts supporting the defense.

In addition to confronting the prosecutor’s substantive arguments on the disputed provocation defense, Schmidt

needed to navigate the “complex legal technicalities” of the

“intricate procedural system.” Ash, 413 U.S. at 307. He needed

to meet the burden of production that Wisconsin requires for

affirmative defenses like adequate provocation: the “some evidence” threshold. If he met that burden at trial, the prosecutor would bear the burden of persuasion and would have to

disprove the defense beyond a reasonable doubt. To show before trial that he had “some evidence” of adequate provocation, Schmidt needed to reveal only his best evidence. These

are not procedural concepts that a layperson—especially one

whose own fate is at stake—is likely to understand, let alone

execute. The transcript in this case shows as much. Schmidt’s

lack of understanding about the burden of production caused

him to disclose too much at this stage. In effect, Schmidt did

the prosecutor’s job for her and converted the ex parte, in camera hearing into a mini-trial on the merits of his defense.

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In sum, in this hearing conducted without his counsel’s

participation, Schmidt not only confronted a complex substantive and procedural question; he was also forced to defend his position on the meaning of the procedural rule after

the prosecutor challenged him. This was a critical stage—in

this case, actually the most critical stage—of this prosecution.

The accused’s right to counsel in this inquisitorial hearing did

not depend on whether the prosecutor was in the room, or on

whether the judge’s tone of voice and phrasing of questions

were gentle or hostile. What mattered, under clearly established Supreme Court precedent, is that Schmidt was confronting the complex machinery of the criminal justice process on the most critical, disputed, and substantive issue in

the case.

2. Potential for Prejudice

For a pretrial confrontation to be a critical stage, it must

also have the potential to prejudice the defendant and therefore undermine the integrity of the trial. Wade, 388 U.S. at 227.

The ex parte, in camera hearing had the potential to prejudice

Schmidt substantially. The state court’s conclusion to the contrary was unreasonable. “Fatal to Schmidt’s argument,” the

Wisconsin court reasoned, the hearing was “supplemental”

and “Schmidt had already submitted written offers of proof”

in support of his defense. The logic of that rationalization for

denying Schmidt assistance of counsel flies in the face of

clearly established Supreme Court precedent.

The Sixth Amendment analysis focuses on whether there

is a potential for prejudice given what or whom the uncounseled defendant must confront and what counsel could do

later to fix the defendant’s mistakes. E.g., Ash, 413 U.S. at 313,

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317; Coleman, 399 U.S. at 7 (plurality); id. at 11 (Black, J., concurring); Wade, 388 U.S. at 227. In this case, Schmidt was asked

to meet the burden of production to preserve his most promising—indeed, his only—defense in mitigation at trial. In this

case, no stage was more critical. What happened in chambers

settled Schmidt’s fate. It reduced “the trial itself to a mere formality.” See Wade, 388 U.S. at 224.

The criminal process is full of pretrial steps that involve

both written and oral submissions to the court: to name a few,

motions to suppress evidence; motions challenging venue, jurisdiction, or competency to stand trial; and motions asserting

selective or vindictive prosecution, or denial of speedy trial

rights, or discovery disputes. Counsel’s help with the written

half of the process does not erase the potential for prejudice

in the oral half, let alone justify denying assistance of counsel.

To our knowledge, the Supreme Court has never held that

having assistance of counsel in part of a critical stage of the

prosecution justifies denial of counsel in the rest of it. In this

case the judge questioned Schmidt after reviewing the written

offers of proof. If the judge had thought the written offers of

proof had met the some-evidence threshold, the ex parte, in

camera questioning would have been unnecessary. What

Schmidt would say in chambers was critical.

Even if Schmidt had met the some-evidence threshold in

his written offers of proof alone, his unfocused “rambling narrative” in chambers could have diluted that evidence with details harmful to his defense. At that point in the pretrial process, Schmidt did not need to prove adequate provocation. He

needed to provide “some evidence” of it. Schmidt, 824 N.W.2d

at 843, citing Head, 648 N.W.2d at 439.

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The risk was not only that the judge might lose sight of the

elements of adequate provocation or might fail to separate the

wheat from the extensive chaff in Schmidt’s rambling answers, though those are certainly good reasons for needing

counsel in the hearing. There was also a risk that Schmidt

would convert the hearing into a mini-trial on the merits of

his defense rather than a debate about the burden of production. If Schmidt could have just met the burden of production—and only that burden—he would have had the right to

present his evidence and argue his defense to the jury. And

the trial judge’s oral ruling suggests that this risk might have

played out here: “The Court finds that the circumstances that

led to the death of Kelly Wing did not involve a provocation

and it was not an adequate provocation and denies the motion.” That conclusion sounds more like a decision on the

merits than a decision on the burden of production.

Finally, Schmidt’s counsel could not fix later the harm

done by Schmidt’s answers. The trial court silenced counsel in

the ex parte hearing and ruled on the defense shortly after

questioning Schmidt. Because counsel could not later undo

the harm to Schmidt, the risk of prejudice at the evidentiary

hearing infected his trial.

3. Role of Counsel

The last factor in the critical-stage analysis is whether

counsel could have helped Schmidt avoid prejudice at the

hearing. There can be no doubt that Schmidt would have benefited from his attorney’s help at the hearing. It is a basic tenet

of constitutional law that an accused has a right to counsel

when he is in custody or after formal proceedings have begun

against him because of the risk that he will inadvertently

harm his defense. See Miranda v. Arizona, 384 U.S. 436, 466

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(1966) (Sixth Amendment guarantees right to counsel at police interrogation to protect defendant against self-incrimination); Massiah, 377 U.S. at 206 (same in interrogation by government informant). The dangers to Schmidt and the opportunity for his counsel to help him are both evident here.

In Ferguson v. Georgia, 365 U.S. 570, 594–96 (1961), the Supreme Court explained the need for counsel in a context very

close to this case. At that time, Georgia prohibited the accused

from testifying in his own defense. State law allowed the accused to make an unsworn statement to the jury, but he ordinarily had to do so without questioning by his counsel to

guide him. The Court held that the defendant had a right to

have his counsel question him to elicit his statement. In explaining this conclusion, the Court quoted Chief Justice Cooley, the nineteenth-century jurist from Michigan, in a lengthy

passage that fits Schmidt’s case well:

But to hold that the moment the defendant

is placed upon the stand he shall be debarred of

all assistance from his counsel, and left to go

through his statement as his fears or his embarrassment may enable him, in the face of the consequences which may follow from imperfect or

unsatisfactory explanation, would in our opinion be to make, what the statute designed as an

important privilege to the accused, a trap into

which none but the most cool and self-possessed could place himself with much prospect

of coming out unharmed. An innocent man,

charged with a heinous offence, and against

whom evidence of guilt has been given, is much

more likely to be overwhelmed by his situation,

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and embarrassed, when called upon for explanation, than the offender, who is hardened in

guilt; and if he is unlearned, unaccustomed to speak

in public assemblies, or to put together his thoughts

in consecutive order any where, it will not be surprising if his explanation is incoherent, or if it overlooks important circumstances.

365 U.S. at 595–96 (emphasis added), quoting Annis v. People,

13 Mich. 511, 519–20 (1865) (reversing conviction where trial

judge had not allowed defense counsel to remind defendant

he had omitted a material fact from his statement).

Schmidt was not innocent, but the subject of the ex parte,

in camera hearing was his only theory of mitigation. And what

Ferguson described with the quotation from Annis is just what

happened here. Without the guidance of counsel’s questioning, Schmidt provided an incoherent account of the circumstances that might have supported his defense in mitigation.

(Recall that the Wisconsin Court of Appeals said it was “a

close question” whether Schmidt had produced “some evidence” sufficient to present a triable defense of adequate

provocation.) Counsel could have helped him organize the

facts, present a coherent and legally relevant response, and

meet the burden of production. Without counsel acting in that

role, “a serious risk of injustice infects the trial itself.” Cronic,

466 U.S. at 656, quoting Cuyler v. Sullivan, 446 U.S. 335, 343

(1980).

B. Assistance of Coun

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