Appendix — Lindh v. Murphy

oo

3

vu-o2o2 ORIGINAL

No. 96- a

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1996

AARON LINDE,

Petitioner,

Vv.

JAMES P. MURPHY, WARDEN,

Respondent.

APPENDIX TQ

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATE COURTS OF APPEALS

FOR THE SEVENTH CIRCUIT

JAMES S. LIEBMAN*

435 W.116th St.

Box B-16

New York, NY 10027

(212) 854-3423

*Counsel of record

RICHARD C. NEUHOFF

600 Harrison St.,

KEITH A. FINDLEY

Assistant State Public Defender

Office of the State Public Defender

Trial Division

P.O. Box 7884

Madison, WI 53707

(608) 267-5026

Suite 535

San Francisco, CA 94107

(415) 543-0433

ATTORNEYS FOR PETITIONER |)

var Si

~ - . — _

we 2. >i >

. %.

Be ta 24 ~.

ES sears Pa

tye > +

é- er Nae ag it eS ing et d:

one * A+ ‘

Dees. «hse

“a To es a : ry

Ae ’ ‘ >

" “4

$F, fy

oy

--- F.3d ----

(Cite as: 1996 WL 517290 (7th Cir.(Wis.)))

Aaron LINDH, Petitioner-Appellant,

v

James P. MURPHY, Warden, Respondent-

Appellee.

No. 95-3608.

United States Court of Appeals,

é Seventh Circuit.

Argued April 9, 1996.

Reargued En Banc June 17, 1996.

Decided Sept. 12, 1996.

appeal from the united states district court for

the eastern District of Wisconsin. No. 92-C-

690--Rudolph T. Randa, Judge.

Before POSNER, Chief Judge, and

CUMMINGS, COFFEY, FLAUM,

EASTERBROOK, RIPPLE, MANION,

KANNE, ROVNER, DIANE P. WOOD, and

EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

*1 In January 1988 Aaron Lindh marched

inte the City-County Building of Madison,

Wisconsin, and shot three strangers for no

apparent reason Two died. Lindh pleaded

guilty to carrying and using a firearm in a

public building; a jury convicted him of two

murders and one atternpted murder. During

the second phase of a bifurcated proceeding,

Lindh argued that he was insane at the time

~ of the shootings, which under Wisconsin law

would alter the place of his confinement (from

a prison to a prison-hospital) and entitle him

to release if at some future time he should be

deemed “recovered.” But the jury found that

Lindh did not have a mental] disease when he

pulled the trigger, and the judge sentenced

him to life plus 35 years in prison.

Lindh's principal] contention on appeal was

that the judge unduly restricted his cross-

examination of Dr. Leigh Koberts, a

psychiatrist who interviewed him on the day

of the shootings (and several times thereafter)

and testified for the prosecution during the

second phase of the tna!. During March 1988

Copr.” West 1996 No claim to orig. U.S. govt. works

Page 1

Roberts learned that he was under

investigation for engaging in improper sexual

conduct with a female patient; in May 1988

Roberts learned that the Medica] Examining

Board was looking into allegations made by

three female patients. By the time of trial in

September 1988 a criminal investigation was

ongoing- conducted by the Milwaukee County

District Attorney, acting as a _ special

prosecutor after the Dane County District

Attorney (whose jurisdiction includes Madison)

recused himself. Lindh’s attorney sought to

explore the allegations made against Roberts,

contending that the pending investigation

would give Roberts a reason to slant his

testimony in the prosecution’s favor. Lindh

did not argue that Roberts had entered into

discussions with the prosecutor about the

sexual misconduct allegations; any plea

agreement or negotiations in progress would

have been subjects of cross-examination under

Giglio v. United States, 405 U.S. 150, 92 S.Ct.

763, 31 L.Ed.2d 104 (1972). Instead Lindh

argued that even if the Dane County

prosecutor could not provide a quid pro quo by

forgoing charges or reducing their severity, he

might put in a good word with the Milwaukee

prosecutor, and whether or not lenity was in

the cards, Roberts might believe that he had

something to gain from helping to convict

Lindh, which could color his analysis and

testimony. Lindh argued that both state law

and the Confrontation Clause of the Sixth

Amendment, applied to the states by the due

process clause of the Fourteenth, entitled him

to cross- examine Roberts about al) potential

sources of bias. See Olden v. Kentucky, 488

US. 227, 109 S.Ct. 480, 102 L.Ed.2d 513

(1988); Delaware v. Van Arsdall, 475 US.

673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986),

United States v. Abel, 469 U.S. 45, 105 S.Ct.

465, 83 L.Ed.2d 450 (1984); Davis v. Alaska,

415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347

(1974).

*2 The trial judge foreclosed inquiry into this

subject (although he permitted extensive cross-

examination on other matters), the court of

appeals reversed, State v. Lindh, 156 Wis.2d

768, 457 N.W.2d 564 (Wis. App.1990), and the

Supreme Court of Wisconsin reversed in turn,

reinstating the sentences, State v. Lindh, 161

- F.3d --

(Cite as: 1996 WL 517290, *2 (7th Cir.(Wis.)))

Wis.2d 324, 468 N.W.2d 168 (1991). The

state’s highest court concluded that the

possibility of bias was so remote, given the

appointment of a special prosecutor, and the

prospect of diverting attention to the sexual

encounters (a subject of no relevance to

Lindh’s sanity) sufficiently great, that the

trial judge did not abuse the discretion he

possessed under both state and federal law.

Justice Abrahamson dissented on state-law

grounds. 468 N.W.2d at 185-89. Lindh then

commenced a collateral attack in federal

court. The district court denied the petition,

writing that it “agrees wholeheartedly with

the analysis of” the state’s Supreme Court.

Lindh appealed to this court.

Fifteen days after a panel heard oral

argument, the President signed the

Antiterrorism and Effective Death Penalty

Act of 1996, Pub.L. 104-132, 110 Stat. 1214.

Section 104 of the new statute amends 28

U.S.C. § 2254, the law under which Lindh

seeks relief. Unaffected by the 1996 Act, §

2254(a) provides that a writ of habeas corpus

may issue “on the ground that [the petitioner]

is in custody in violation of the Constitution or

laws or treaties of the United States.” It does

not further elaborate. Federal courts

exercising their authority under § 2254(a)

disregarded the state courts’ legal conclusions

and reached independent judgments on issues

presented to them. Brown v. Allen, 344 U.S.

443, 458 (1953). Section 104(2) of the 1996 Act

redesignates the former § 2254(d), which deals

with state courts’ findings of fact, as § 2254(e);

§ 104(3) of the 1996 Act, 110 Stat. 1219, adds

a new § 2254(d) that for the first time specifies

the appropnate treatment of legal

determinations by state courts

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shal] not be

granted with respect to any claim that was

adjudicated on the merits in State court

proceedings unless the adjudication of the

claim--

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as

determined by the Supreme Court of the

United States, or

Copr ° West 1996 No claim to orig. U.S. govt. works

Page 2

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding. We set this case for

reargument before the full court in order to

decide whether the new provision applies to

pending cases and, if it does, how it affects

them. We invited and received supplemental

briefs from the parties, and we have had the

benefit of briefs from the American Bar

Association and a group of former federal

judges as amici curiae.

I

*3 Landgraf v. USI Film Products, 511 US.

244, 114 S.Ct. 1483, 128 L.Ed.2é 229 (1994),

lays out a sequence of issues. First we must

decide whether Congress has decided to which

cases a new law applies; if it has, the only

task is to follow the statute. If Congress has

not provided one way or the other, we must

apply the law in force at the time of decision--

which is to say, the new § 2254(d)--unless “the

new provision attaches new legal

consequences to events completed before its

enactment.” 114 S.Ct. at 1499. But what is a

“new legal consequence"? Landgraf says that

not every change in outcome counts; it

matters whether the party adversely affected

by the change has legitimate reliance

interests in the operation of the former law.

A

Has Congress answered the question at hand?

Not directly. Section 104 of the 1996 Act

lacks an effective-date provision Lindh

contends that Congress addressed the subject

indirectly, by providing that the new Chapter

154 of Title 28 (28 U.S.C. §§ 2261-66),

captioned Special Habeas Corpus Procedures

in Capital Cases and contained in § 107(a) of

the 1996 Act, applies “to cases pending on or

after the date of enactment of this Act.”

Section 107(c), 110 Stat. 1226. This

establishes, Lindh submits, that §§ 101 to 106

of the statute do not apply to pending cases.

“Establishes” is too strong a word. Sections

101 to 106 amend Chapter 153 of Title 28.

Nothing in the 1996 Act provides one way or

—

-- F.3d ----

(Cite as: 1996 WL 517290, *3 (7th Cir.(Wis.)))

another for the temporal extent of the

changes. Do they govern collateral attacks

arising out of crimes committed after April 24,

1996? Convictions after that date? Appellate

decisions after that date? Collateral attacks

filed after that date? The statute is silent.

Congress addressed those issues for Chapter

154, but not Chapter 153. There is at most a

negative implication. Should we draw it? A

amendments to Chapter 153, leaving the

subject to judicial resolution Perhaps instead

Congress overlooked the subject when drafting

$§ 101-106 (the changes to Chapter 153 and

the new Chapter 154 originated in different

Houses of Congress at different times)--or

recognized its importance but thought the

answer so clear that express provision was

unnecessary. Which understanding is

Potential negative implications of effective-

date provisions have been urged before, most

recently in Landgraf. The Civil Rights Act of

1991 provides that “le}xcept as otherwise

specifically provided, this Act and the

amendments made by this Act shall take

effect upon enactment.” The Court held that

this language “does not even arguably suggest

that [the Act] has any application to conduct

that occurred at an earlier date.” 114 S.Ct. at

1493 (emphasis added). Two other provisions

of the 1991 Act are more explicit. One says

that the statute does not apply to a particular

ongoing case, the other says that the

extension of the civil mghts laws to overseas

employers “shall not apply with respect to

conduct occurring before the date of the

enactment of this Act.” Landgraf argued that

these two anti-retroactivity provisions

established that the rest of the 1991 Act

applied to conduct preceding its enactment.

Otherwise the two anti-retroactivity

provisions would be irrelevant, and courts try

to interpret laws to avoid both irrelevance and

redundancy. Landgraf, 114 S.Ct. at 1494.

The Court conceded this but held nonetheless

that the 1991 Act is effectively silent on the

question. Id. at 1494-96. It was unwilling to

draw a negative implication from two

provisions that may have been inserted just to

Copr. " West 1996 No claim to orig. U.S. govt. works

Page 3

make double sure. Although “a majority of

the 1991 Congress [may have) favored

retroactive application, even the will of the

majority does not become law unless it follows

the path charted in Article I, § 7, cl. 2 of the

Constitution” (114 S.Ct. at 1496)-that is,

unless it yields a text agreed on by both

Houses and signed by the President.

*4 Just so with the 1996 Act. And the

argument by negative implication is weaker

for the 1996 Act than for the 1991 Act. The

Supreme Court's holding in Landgraf made

two sections of the statute irrelevant. Nothing

we could hold, one way or the other, about §§

101-106 could deprive § 107(c) of ihdependent

meaning. True enough, 28 U.S.C. § 2264(b),

in Chapter 154, refers to § 2254(d), so § 107(c)

requires the application of the amended §

2254(d) to capital cases within the scope of

Chapter 154. But we think that Lindh

misunderstands Chapter 154 when contending

that § 2264(b) has “no function other than to

cause certain of the otherwise inapplicable

Chapter 153 revisions to apply retroactively”

(Supp. Reply Br. 3). Section 2264(a) provides

that, when Chapter 154 applies, a court shal!

consider only “a claim or claims that have

been raised and decided on the merits in the

State courts” unless failure to raise a claim

was caused by one of three identified

circumstances. Section 2264(b) adds:

“Following review subject to subsections (a),

(d), and (e) of section 2254, the court shall rule

on the claims properly before it.” Why only

“subsections (a), (d), and (e) of section 2254"?

Surely not because these are to be retroactive,

while subsections (b), (c), (f), (g), (h), and (i) are

not. If as Lindh believes the only reason to

include § 2254(d) in § 2264(b) is to apply it to

pending cases, then this must also be the sole

reason for referring to § 2254(a)--but § 2254(a)

is not amended by the 1996 Act, while many

subsections omitted from the list in § 2264(b)

were amended or added by the new statute.

Section 2264(b) conveys its meaning only

when read together with § 2264(a).

Subsections (b) and (c) of § 2254 have been

omitted from the list because § 2264(a)

replaces their rule with one more favorable to

the states. Section 2254(b) and (c) codify the

A-2

- F.3d =

(Cite as: 1996 WL 517290, *4 (7th Cir.(Wis.))

exhaustion requirement, which § 2264(a)

displaces for Chapter 154 cases. The

remaining subsections of § 2254 likewise don’t

fit the Chapter 154 scheme. For example, §

2254(i), added by the 1996 Act, says that

“ineffectiveness or incompetence of counsel

during Federal or State collatera] post-

conviction proceedings shall not be a ground

for relief in a proceeding arising under section

2254.” 110 Stat. 1219. Chapter 154 addresses

this question directly in the new 28 U.S.C. §

226 1(e), 110 Stat. 1222, making incorporation

of § 2254(i) inapt. Section 2264(b) tells us not

“when,” but “which.” Lindh’s argument

therefore misses the mark: this section

neither addresses any other section's temporal

effectiveness nor is made irrelevant by

applying § 2254(d) to pending cases.

Chapter 154 comprises many rules that

Congress evidently wanted to apply forthwith

no matter what the courts made of §§ 101-106.

For example, the new 28 U.S.C. § 2262(a)

provides for automatic stays of execution

during initial collateral attacks covered by

Chapter 154. Prisoners on death row received

stays on April 24, 1996, even if courts had

denied stays under prior law. Having blocked

executions while litigation continues,

Congress curtailed the time federal courts

may take to act--for example, a court of

appeals must decide a capital appeal within

120 days after the filing of the reply brief. 28

U.S.C. § 2266(cK1MA). Section 107(c) applies

that limit to pending capital cases, a step that

serves quite a different function from a

decision one way or the other about the

application of § 2254(d) to non-capital cases

Congress obviously wanted to ensure that both

the stays of execution and the time limuts--

provisions of Chapter 154 without

counterparts in Chapter 153-- extended to as

many cases as possible. Nothing about that

decision has any implications for Chapter 153

We conclude that § 107(c) does not govern the

question at hand. Sections 101-106 lack an

effective-date provision. We must decide what

to do when the legislation is silent

B

*S Landgraf reiterates two long-established

Copr * West 1996 No claim to orig. U.S. govt. works

A-4

Page 4

rules that govern when the legislature is

silent: first, courts normally apply the law in

force at the time of decision; second, the court

does not use the new law if application would

be “retroactive.” Each side appeals to one of

these propositions. Wisconsin contends that §

2254(d) is today’s rule of decision and should

be applied. Lindh rejoins that § 2254(d) would

be “retroactive” to the extent it reduce: his

chance of prevailing. He also contends that he

is entitled to a writ of habeas corpus whether

or not § 2254(d) applies, but he uses the

possibility of an adverse effect as the

definition of retroactivity. As a definition, it

will not do--for it would obliterate the first

rule, turning it into something like “a court

applies the law in force at the’ time of its

decision whenever it is the same as the law in

force all along.” Landgraf was explicit that

“leven uncontroversially prospective statutes

may unsettle expectations and impose burdens

on past conduct". 114 S.Ct. at 1499 n 24; see

also id. at 1501-04.

“A statute does not operate ‘retrospectively’

merely because it is applied in a case arising

from conduct antedating the statute's

enactment, or upsets expectations based on

prior law. Rather, the court must ask whether

the new provision attaches new legal

consequences to events completed before its

enactment.” Landgraf, 114 S.Ct. at 1499

(citation and footnote omitted). Section 2254(d)

does not attach new legal consequences to the

filing of petitions for habeas corpus, although

some other parts of the 1996 Act may do this.

We take it that under Landgraf a certificate of

probable cause to appeal issued before Apri!

24, 1996, authorizes an appeal, although after

Apnl 24 appeal depends on a “certificate of

appealability” under § 102 of the 1996 Act

(amending 28 U.S.C. § 2253(c)), which not only

changes the name but also requires the court

to identify the appealable issue. Similarly, a

second or successive petition already pending

on April 24 does not require prior approval of

the court of appeals under § 106 (amending 28

U.S.C. § 2244(b)), see Williams v. Calderon, 83

F.3d 281, 285-86 (9th Cir.1996), although the

application of the substantive standards in the

new § 2244(b) to determine who is eligible for

relief is a more difficult question, which the

-- F.3d ----

(Cite as: 1996 WL 517290, *5 (7th Cir.(Wis.)))

court addresses separately today in Burris v.

Parke, No. 95-3725.

For a provision such as § 2254(d), which

affects the relation between federal and state

courts, rather than regulating the details of

filed can’t be any more important than the

date on which the suits were filed in Landgraf

and Mojica v. Gannett Co., 7 F.3d 552 (7th

Cir.1993) (en banc). In Landgraf the Court

asked whether the Civil Rights Act of 1991

could be applied to employment decisions that

the statute. A lawsuit concerning

1990 conduct is governed by 1990 law, no

matter when the suit began, Landgraf held (as

we had held in Mojica, 7 F.3d at 558-59). See

also Rivers v. Roadway Express, Inc., 511 U.S.

298, 114 S.Ct. 1510, 128 L.Ed. 2d 274 (1994).

The parallel question is whether the 1996 Act

may be applied when the crime or state court

decision preceded Apri] 24, 1996.

*6 Understandably, Lindh does not argue

that, when deciding whether to commit a

crime (and, if so, which one), he relied on the

availability of the version of § 2254 that was

on the books in 1988. Under the Ex Post

Facto clauses people charged with crime have

powerful, and enforceable, expectations about

the legal rules that apply to their conduct.

But the 1996 Act does not change any of the

rules defining or penalizing crime. Moreover,

having lost in the state's judicial system

before the amendment, Lindh cannot

successfully argue that the change of law

affected the judicial process. By any

standards, the former version of § 2254 was

more favorable to prisoners than the current

one, and the prospect of more intensive review

by federal courts may have made state courts

more attentive to claims under federal! law.

Lindh wants us to cast a darker light on state

yudges--to assume that the prospect of plenary

federal review made them inattentive to

federal nghts, because then they could appear

tough on crime (to improve reelection

prospects) while knowing that the people they

confine in prison would eventually be let go.

He does not offer any empirical support for

believing that state judges wrongfully

impnson people to further their own careers,

Copr. * West 1996 No claim to orig. U.S. govt. works

A-5

Page 5

and in Wisconsin judges who proclaim

willingness to give defendants extra rights

have had no difficulty being retained. See

Shirley S. Abrahamson, The Emergence of

State Constitutional Law, 63 Tex.L.Rev. 1141

(1985). It would not be appropriate to presume

that the Justices of the Supreme Court of

m

:

iff

ie

0

rebarE

FSEES<Fe

i

iE

i

i

if

te XY rr be ee —

was motivated by a respect for the States’

strong interest in the finality of criminal

convictions, and the recognition that a State

should not be penalized for relying on “the

constitutional standards that prevailed at the

time the original proceedings took place.”

“The ‘new rule’ principle therefore validates

reasonable, good-faith interpretations of

existing precedents made by state courts even

though they are shown to be contrary to later

decisions.” Butler v. McKellar, 494 U.S. 407,

414, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990).

*7 A federal habeas petitioner has no interest

in the finality of the state court judgment

under which he is incarcerated: indeed, the

F.3d

(Cite as: 1996 WL 517290, *7 (7th Cir.(Wis.))

very purpose of his habeas petition is to

overturn that judgment. Nor does such a

petitioner ordinarily have any claim of

reliance on past judicial precedent as a basis

for his actions that corresponds to the State's

interest described in the quotation from

Butler, supra. The result of these differences

is that the State will benefit from our Teague

decision in some federal habeas <-ses, while

the habeas petitioner will not. This result is

not, as the dissent would have it, a “windfall”

for the State, but instead is a perfectly logical

limitation of Teague to the circumstances

which gave rise to it. Cessante ratione legis,

cessat et ipsa lex. 506 US. at 372-73

(citations omitted). In other words, legal

changes that reduce the willingness of federal

courts to set aside judgments presumptively

apply to existing judgments.

This is the historical practice. The Supreme

Court consistently applies statutory changes

in the law of collateral attack to pending

cases, and perforce to newly filed cases that

seek relief from judgments entered before the

statute's enactment. In Felker v. Turpin, --

US. ---, 116 S.Ct. 2333, 135 L.Ed.2d 827

(1996), the Court decided a case under the

1996 Act’s standards, even though the

conviction preceded the amendments. (The

petition for habeas corpus in Felker was filed

after April 24, 1996, but we have already

explained why the date of the petition cannot

be dispositive) Thirty years ago Congress

made extensive amendments to Chapter 153,

which the Court applied to cases under review

without so much as remarking on the date of

enactment Smith v. Yeager, 393 US 122,

124-25, 89 SCt. 277, 21 L.Ed.2d 246 (1968),

Carafas v LaVallee, 391 US 234, 239, 88

SCt 1556, 20 L.Ed2d 554 (1968) Earlier

amendments to the rules of collatera! attack

likewise were brought to bear in pending

cases Gusik v. Schilder, 340 US 128. 131-33

& n 4 71 SCt 149, 95 LEd 146 (1950),

implements the exhaustion requirement

introduced by the 1948 amendment to § 2254

Accord, Darr v. Burford, 339 U.S. 200,70S Ct

587, 94 L Ed 761 (1950)

The language of the amendments likewise

implies immediate application Recall that §

Copr *" West 1996 No claim to orig. U.S. govt. works

A-6

Page 6

2254(d) does not empower a court to issue the

writ. Instead it forbids issuance of the writ-

prohibition is one we must respect. See Ivey

v. Harney, 47 F.3d 181 (7th Cir.1995). It is

the sort of difference that the Supreme Court

has relied on when holding that changes in

the law affecting judicial ability to supply

prospective relief govern pending cases. E.g.,

Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24

L.Ed.2d 214 (1969), American Steel Foundries

v. Tri- City Central Trades Council, 257 U.S.

184, 201-02, 42 S.Ct. 72, 66 L.Ed. 189 (1921);

Duplex Printing Press Co. v. Deering, 254

U.S. 443, 464, 41 S.Ct. 172, 65 L.Ed. 349

(1921), all discussed favorably in Landgraf,

114 S.Ct. at 1501. Current law normally

governs when statutes “speak to the power of

the court rather than to the rights or

obligations of the parties,” Republic National

Bank of Miami v. United States, 506 U.S. 80,

99-100, 113 S.Ct. 554, 121 L.Ed. 2d 474 (1992)

(Thomas, J., concurring) (quoted with approval

in Landgraf, 114 S.Ct. at 1499, 1502). We do

not suggest that § 2254(d) reduces the power of

the court in the sense of subject-matter

jurisdiction, which survives intact in 28 U.S.C.

§ 2241; a state may waive the benefits of §

2254(d), although other provisions of the 1996

Act, such as the revised exhaustion

requirement in § 2254(b), suggest that

counsel's inattention to the niceties of federal

practice does not forfeit the benefits the law

bestows on the state as an entity. See also

Eaglin v. Welborn, 57 F.3d 496, 498-99 (7th

Cir.1995) (en banc) (holding that a court may

decide a case on the basis of Teague even if

the state's lawyers overlooked that

possibility), Our point, rather, is that the

amended § 2254(d) is designed to curtail

collateral review and augment the finality of

judgments, which strongly implies application :

to exusting judgments.

Cc

*8 Lindh and the State of Wisconsin litigated

in the state's forums the constitutional claim

--- F.3d ---~-

(Cite as: 1996 WL 517290, *8 (7th Cir.(Wis.)))

could influence the selection of issues--is the

sort of event to which the amended statute

would “attach new legal consequences.”

Courts treat a reduction in the statute of

limitations as a rule for new cases only. See

Landgraf, 114 SCt. at 1502 n 29 And

although no decision of the Supreme Court

addresses the question directly, we do not

doubt that the Court would give a plaintiff

who files after the enactment a reasonable

post-amendment time to get litigation

underway. A new statute is unlike a judicial

construction of an existing statute, which after

Lampf, Pleva, Lipkind, Prupis & Petigrow v

Gilbertson, 501 US. 350, 111 S.Ct. 2773, 115

Copr. * West 1996 No claim to orig. U.S. govt. works

A-7

Page 7

L.Ed.2d 321 (1991), and James B. Beam

Distilling Co. v. Georgia, 501 U.S. 529, 111

S.Ct. 2439, 115 L.Ed.2d 481 (1991), governs al!

provision

2255 by § 105 of the 1996 Act.

But Lindh lacks any reliance interest nearly

treatment under § 2254, but because they

recognize that the Supreme Court of the

United States rarely grants such requests. “A

petition for a writ of certiorari will be granted

only for compelling reasons.” S.Ct. R. 10. As

a practical matter, to obtain direct review

Lindh would have had to establish not only

the national importance of the question at

hand, but also that the decision of the

Supreme Court of Wisconsin interpreted the

Constitution in a way disagreeing with the

S.Ct. R. 10%). Lindh does not argue that his

case presents such an abstract legal question,

instead he argues that the state's courts

~ 7

(Cite as: 1996 WL 517290, *8 (7th Cir.(Wis.))

misapplied settled law to the facts of his case.

Such a contention had no prospect in 1991 of

receiving an audience in the Supreme Court of

the United States, and Lindh gave up nothing

of value by deciding not to seek certiorari.

Lightning can strike a petition for certiorari,

but Lindh’s would not have been a good

lightning rod.

*9 As for the omission of a collateral attack in

state court: Wisconsin would not have

entertained one, had Lindh filed it. Wisconsin

does not permit an inferior court to review a

decision of the state’s highest court. Wis. Stat.

§ 974.06. A prisoner who can establish an

unusual reason, such as an intervening change

of law, may wage a collateral attack in

Wisconsin even after the state’s Supreme

Court has addressed the merits, see State v.

Escalona- Naranjo, 185 Wis.2d 168, 517

N.W.2d 157 (1994), but Lindh does not qualify

for this exception--and, if he does, the state

courts remain open to him. Lindh contends

that the Supreme Court of Wisconsin

misunderstood one factual question: whether

Roberts’ privileges at the University of

Wisconsin Hospital had been suspended by the

time of trial. The court wrote that the record

did not show such a suspension, 468 N.W.2d at

173. and Lindh says that this is wrong. If so,

and if this is important, Lindh could have

sought rehearing in the state court or could

have introduced factual support for his

position in the federal district court. He did

neither, raising this contention for the first

time only in supplemental! briefs filed after

the case had been set for rehearing en banc

Issues raised so belatedly are forfeited, we

deny the motion to supplement the record

Lindh’s delay cannot be attributed to the 1996

Act. as he had ample opportunity to make his

version of events known under both former

and current § 2254 (the amended §& 2254(e¥ 1),

110 Stat. 1219, authorizes a petitioner to

dispute a factual determination by a state

court. although proof of error requires clear

and convincing evidence) Once again,

therefore, Lindh’'s litigating decisions were not

affected by the difference between the versions

of § 2254. The 1996 Act does not “impair

rights a party possessed when he acted,

increase a party's liability for past conduct, or

Copr.’ West 1996 No claim to ong. U.S. govt. works

aA-8

Page 8

impose new duties with respect to transactions

already completed.” Landgraf, 114 S.Ct. at

1505. The new law therefore governs our

consideration of Lindh’s contentions.

D

Almost as an afterthought, Lindh (with the

support of the American Bar Association, as

amicus curiae) asserts that any alteration in

the scope of collatera] review after a prisoner

has filed a petition under § 2254 violates Art.

1, § 9, cl. 2 of the Constitution: “The Privilege

of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion

or Invasion the public Safety may require it.”

Lindh does not cite any authority for this

proposition, and we think the contention

feckless. If the new § 2254(d) “suspends” the

Great Writ, it does so no less for cases filed on

April 25, 1996, than for cases pending on April

24. Yet to alter the standards on which writs

issue is not to “suspend” the privilege of the

writ. Felker so holds for another amendment

made by the 1996 Act.

*10 The writ known in 1789 was the pre-trial

contest to the executive's power to hold a

person captive, the device that prevents

arbitrary detention without trial. Ex parte

Bollman & Swartwout, 8 U.S. (4 Cranch) 75, 2

L.Ed. 554 (1807); Ex parte McCardle, 73 U.S.

(6 Wall.) 318, 18 L.Ed. 816 (1868); Ex parte

Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868

(1886). See McCleskey v. Zant, 499 U.S. 467,

478, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991);

Schlup v. Delo, --- U.S. ----, ---, 115 S.Ct. 851,

862, 130 L.Ed.2d 808 (1995). The power thus

enshrined did not include the ability to

reexamine judgments rendered by courts

possessing jurisdiction. Ex parte Kearney, 20

U.S. (7 Wheat.) 38, 5 L.Ed. 391 (1822), see

also Dallin H. Oaks, Habeas Corpus in the

States--1776-1865, 32 U. Chi. L.Rev. 243, 244-

45 (1965). Under the original practice, “a

judgment of conviction rendered by a court of

general criminal jurisdiction was conclusive

proof that confinement was legal ... (and)

prevented issuance of a writ”. United States

v. Hayman, 342 U.S. 205, 211, 72 S.Ct. 263,

96 L.Ed. 232 (1952), see also Ex parte Yerger,

75 US. (8 Wall.) 85, 101, 19 L.Ed. 332 (1869).

ae.

we F.3d ==

(Cite as: 1996 WL 517290, *10 (7th Cir.(Wis.)))

i Ex

parte Watkins, 28 U.S. (3 Pet.) 193, 7 L.Ed.

650 (1830). Section 14 of Judiciary Act of 1789

general power of collateral review in 1867, 14

Stat. 385, and then repealed it the next year,

15 Stat. 44, a step sustained in McCardle.

(Limited powers created in 1833, 4 Stat. 634-

35, to protect federal officers from state

interference, and in 1842, 5 Stat. 53940, to

protect foreign nationals, did not affect the

bulk of criminal cases.) The general power

was not reestablished unti] 1885, 23 Stat. 437,

and has been subject to frequent revision by

Congress-and reinterpretation by the

Supreme Court--ever since. Collateral review

of judgments entered after full oppor*unity for

litigation is the work of the 20th Century.

Whether the first occasion came in 1953 with

Brown v Allen, or that honor belongs instead

to Waley v. Johnson, 316 U.S. 101, 62 SCt.

964, 86 L.Ed 1302 (1942), or even Frank v.

Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed.

969 (1915), which stretched the rule that a

writ may issue when the convicting court

lacks “jurisdiction” (see Ex parte Lange, 85

LS (18 Wall.) 163, 21 L.Ed. 872 (1874)), does

not matter. Justices debated the question in

Wright v. West, 505 U.S. 277, 112 S.Ct. 2482,

120 LEd2d 225 (1992), as a matter of

statutory interpretation. “Judgments about

the proper scope of the writ are ‘normally for

Copr.* West 1996 No claim to crig. U.S. govt. works

A-9

Page 9

Congress to make.’ ” Felker, -- US. at ---,

116 S.Ct. at 2340, quoting from Lonchar, ---

US. at ---, 116 S.Ct. at 1298. Any suggestion

that the Suspension Clause forbids every

contraction of the powers bestowed by

Congress in 1885, and expanded by the 1948

and 1966 amendments to § 2254, is untenable.

The Suspension Clause is not a ratchet.

0

*11 Section 2254(dX1) provides that a writ

may not issue unless the state court’s decision

"was contrary to, or involved an unreasonable

application of, clearly established Federal law,

as determined by the Supreme Court of the

United States”. What does this mean’? Is it

congruent with the judicial role established by

Article III of the Constitution? And how does

it affect Lindh’s contentions?

A

The Conference Report on the 1996 Act says

that § 2254(d) “requires deference to the

determinations of state courts that are neither

‘contrary to,’ nor an ‘unreasonable application

of,’ clearly established federal law.”

H.R.Conf.Rep. 104-518, 94th Cong., 2d Sess.

111 (1996). This passage, together with

similar comments on the floor, has led to an

unproductive debate among the parties and

the amici about what “deference” entails. It is

a wonderful illustration why legislative

history so often misleads-for the word

“deference” does not appear in the statute. It

does not tell us to “defer” to state decisions, as

if the Constitution means one thing in

Wisconsin and another in Indiana. Nor does it

tell us to treat state courts the way we treat

federal administrative agencies. Deference

after the fashion of Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467

US. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694

(1984), depends on delegation. See Adams

Fruit Co. v. Barrett, 494 U.S. 638, 110 S.Ct.

1384, 108 L.Ed.2d 585 (1990). Congress did

not delegate either interpretive or executive

power to the state courts. They exercise

powers under their domestic law, constrained

by the Constitution of the United States.

"Deference” to the jurisdictions bound by

w=» F.3d ---

(Cite as: 1996 WL 517290, *11 (7th Cir.(Wis.)))

those constraints is not sensible. We see no

need to pursue this subject, however, because

our task is to construe the enacted statute, not

to construe its legislative history.

The first phrase of § 2254(dX1)--authorizing a

federa] court to issue the writ when the state

court’s decision is “contrary to ... clearly

established Federal law, as determined by the

Supreme Court of the United States”,

preserves rather than undermines federal

courts’ independent interpretive power.

Federal courts are free to express an

independent opinion on all legal issues in the

case. So if, for example, the Supreme Court of

Wisconsin had held that the Confrontation

Clause does not entitle defendants to cross-

examine witnesses to establish bias, then

Davis v. Alaska would show that the decision

is “contrary to ... clearly established Federal

law, as determined by the Supreme Court of

the United States", even if decent arguments

could be constructed that Davis misunderstood

the Confrontation Clause. Section 2254(d)

requires us to give state courts’ opinions a

respectful reading, and to listen carefully to

their conclusions, but when the state court

addresses a legal question, it is the law “as

determined by the Supreme Court of the

United States” that prevails

*12 This is a retrenchment from former

practice. which allowed the United States

courts of appeals to rely on their own

jumsprudence in addition to that of the

Supreme Court. The novelty in this portion of

§ 2254(d¥1) is not the “contrary to” part but

the reference to “Federa)] law, as determined

by the Supreme Court of the Umited States”

(emphasis added) This extends the pnnciple

of Teague by limiting the source of doctrine on

which a federal court may rely in addressing

the application for a wnt It does not,

however. purport to limut the federal! courts

independent interpretive authonty with

respect to fecera) questions

An application for a wnt is only an invitation

to a federa) court to grant the requested relief

upon its review of a cnminal conviction and

confinement under state law See Felker, ---

Lo. a 116 S.Ct. at 2339. The authority

Copr * West 1996 No claim to orig. U.S. govt. works

A-10

Page 10

to issue the writ is conferred on courts by

statute. Ex parte Bollman & Swartwout,

supra. It is doctrinally distinct from the

statutory grant of jurisdiction to decide a case

or controversy, e.g., 28 U.S.C. § 1331. Yet just

as Congress may restrict the jurisdiction of the

inferior Article III courts, so it may prescribe

limits on the granting of the extraordinary

relief provided by the writ of habeas corpus.

A conflict between decisions of the Seventh

Circuit and the Supreme Court of Wisconsin

would not authorize issuance of a writ under §

2254(dX1). State courts must knuckle under to

decisions of the Supreme Court, but not of this

court. So Lindh must be able to point to an

authoritative decision of the Supreme Court in

order to secure a writ. He has Davis and Van

Arsdall. We therefore need not shoulder the

potentially difficult task of determining when

an appellate gloss on a decision of the

Supreme Court has so far departed from its

wellisprings as to be the “real” source of law,

or when the chain of reasoning has stretched

so long that the rule cannot be called “clearly

established” as of the time the state court

rendered its decision. These are the sorts of

questions presented by the Teague standard,

e.g., Gray v. Netherland, --- U.S. ---, --- - ---

116 S.Ct. 2074, 2083-85, 135 L. Ed.2d 457

(1996); Sawyer v. Smith, 497 U.S. 227, 236,

110 S.Ct. 2822, 111 L.Ed.2d 193 (1990); Saffle

v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257,

108 L.Ed.2d 415 (1990) (“compelled by

existing precedent"), and the “ciearly

established" language is unlikely to pose a

different kind of interpretive challenge.

The new § 2254(dX1) adds a twist to the

complexities of the Teague inquiry, however,

because it explicitly identifies only the

Supreme Court as the font of “clearly

established" rules. This language could be

understood to adopt an unfortunate view that

applies the unitary model of the executive

department to the judicial department as well.

Such a view of the judiciary, which runs

counter to the explicit textual differences

between the vesting clauses of Articles I] and

IIl, assigns to the inferior Article [I] courts a

role analogous to that of an executive agency.

From this flawed perspective, the inferior

{

-~- F.3d ----

(Cite as: 1996 WL 517290, *12 (7th Cir.(Wis.)))

courts are seen as agencies of the judicial

with authority derived from the

power vested in the Supreme Court.

*13 The Constitution vests the judicial power

“in one supreme Court, and in such inferior

Courts as the Congress may from time to time

ordain and establish” Art. [1 § 1. The

vesting clause of Article II] is quite different

from the vesting clause of Article II, which

says that the “executive Power shall be vested

in a President of the United States of

America.” Art. I § 1 cl. 1. By virtue of the

grant in Article II to a single person, agencies

of the executive department exercise executive

authority on behalf of the President. See

Myers v. United States, 272 U.S. 52, 47 S.Ct.

21, 71 L.Ed. 160 (1926).

In contrast, the judicial power is given by the

Constitution to each of the inferior Article I

courts. Accordingly, when these courts act

within their jurisdictions, they exercise the

judicial power directly, though subject to the

limits of revisionary jurisdiction of a court

superior within the Article I] hierarchy. The

inferior courts do not rely on the Supreme

Court for their authority to exercise the

judicial power, for this power is given them

directly by Article III once they are ordained,

established, and provided with jurisdiction by

Congress

Lindh would like us to stop here, to announce

that § 2254(d) has not changed the law in any

way material to his case, and to proceed to

decision. We cannot do that, because one

ingredient of Lindh’s claim is not well

established. The Confrontation Clause (and

therefore the principles of Davis and Van

Arsdall) governs at trial of the merits, but not

at sentencing. Is the dispositional! phase of a

bifurcated trial closer to the merits, or to

sentencing? We return to that question in

Part I.C. Moreover, we do not read the

“contrary to " Janguage to authorize

issuance of a writ whenever a court errs, as

Lindh and the amici prefer; that would vitiate

the second (“unreasonable application”) clause

of § 2254(dX1). The two clauses have separate

functions. We must ensure that the Supreme

Court of Wisconsin adheres to legal principles

Copr.’ West 1996 No claim to orig. U.S. govt. works

A-11

Page 11

articulated by the Supreme Court of the

United States. But when the dispute lies not

in the meaning of the Constitution, but in its

application to a particular set of facts--when it

is, in the standard phrase, a “mixed question

of law and fact"-sec. 2254(dX1) restricts the

grant of collateral relief to cases in which the

state’s decision reflects “an unreasonable

application of” the law.

The reference to an “unreasonable application

of Federal law” sounds like the official-

immunity question in constitutional-tort

litigation, but we doubt that this is quite the

right analogy. Principles of immunity are

designed to draw the line between prospective

relief and damages from a governmental body,

on the one hand, and payment from the pocket

of a public employee, on the other. Section

2254(dX1) serves an entirely different

function. Perhaps, then, the unreasonable-

application language should be understood as

another variation on Teague. Recall the

quotation in Lockhart from Butler: Teague

“validates reasonable, good-faith

interpretations of existing precedents made by

state courts even though they are shown to be

contrary to later decisions.” Section 2254(dX1)

generalizes this principle of respect by

withdrawing the "later decisions” proviso.

*14. How much leeway does the

“unreasonable application” language create?

None on questions of interpretation. It does

not authorize or permit state courts to deviate

from the Constitution. Federal courts acting

within their jurisdiction are always entitled to

interpret the law independently. Section

2254(dX1) as we read it does no more than

regulate relief. It tells federal courts: Hands

off, unless the judgment in place is based on

an error grave enough to be called

“unreasonable.” Historical practice (see Part

1.D above) likewise counseled restraint in use

of the writ. Other rules limiting the remedy

abound. We have mentioned official

immunity cases, in which federal courts retain

full interpretive power, but forbear from using

the remedy of damages. Consider, too, the

doctrine of United States v. Leon, 468 US.

897 (1984), under which the exclusionary rule

does not apply to evidence gathered in

PP BBa

(Cite as: 1996 WL 517290, *14 (7th Cir.(Wis.)))

reasonable reliance on a search warrant, even

if the warrant was issued in violation of the

Constitution. In such cases the court retains

(but need not exercise) the power to identify

the state court’s violation of the Fourth

Amendment, see 468 U.S. at 925, but the

remedy of suppression (and a new trial) is

withheld unless the violation is obvious, or the

officer's reliance wunrear able. The

inevitable-discovery doctrine similarly

specifies situations in which a constitutional

violation (established by independent review

in the federal courts) does not lead to the

remedy of upsetting a criminal conviction.

See Nix v. Williams, 467 U.S. 431, 104 S.Ct.

2501, 81 L.Ed.2d 377 (1984).

None of this answers the question when a

departure is so great as to be “unreasonable,”

for that question lacks an abstract answer,

just as courts have been unable to give precise

content to phrases such as “abuse of

discretion." Application of Leon therefore has

required careful inquiry one case at a time,

and we do not see how application of §

2254(dX1) can be much different. For current

purposes it is enough to say that when the

constitutional question is a matter of degree,

rather than of concrete entitlements, a

“reasonable” decision by the state court must

be honored. By posing the question whether

the state court’s treatment was

“unreasonable,” § 2254(dX1) requires federal

courts to take into account the care with which

the state court considered the subject.

Questions of degree--like questions about the

proper use of “discretion”--lack answers to

which the labels “nght" and “wrong” may be

attached. When the subject is painted in

shades of grey, rather than in contrasting

colors, a responsible, thoughtful answer

reached after a full opportumuty to litigate 15

adequate to support the judgment Thinx of

the Speedy Trial Clause of the Sixth

Amendment, which after Barker v. Wingo.

407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101

(1972), does not prescribe a rule for “how long

is too long” but rather establishes a list of

factors to consider. The Supreme Court of the

United States sets the bounds of what is

“reasonable”; a state decision within those

Copr.* West 1996 No claim to ong. U.S. govt. works

A-12

Page 12

limits must be respected--not because it is

right, or because federal courts must abandon

their independent: decisionmaking, but

because the grave remedy of upsetting a

juagment entered by another judicial system

after full litigation is reserved for grave

occasions. That is the principal change

effected by § 2254(dX1).

*15 The American Bar Association and a

group of former federal judges, appearing as

amici curiae, contend that § 2254(dX1) is

unconstitutional to the extent it requires

anything less than plenary review of all

contentions based on federal law. Their

argument, distinct from Lindh’s invocation of

the Suspension Clause, is that the “judicial

Power of the United States” (Art. III § 1) is the

power to interpret the law independently.

They rely on Marbury v. Madison, 5 US. (1

Cranch) 137, 177, 2 L.Ed. 60 (1803) ("[ikt is

emphatically the province and duty of the

judicial department to say what the law is")

and modern statements such as Plaut v.

Spendthrift Farm, Inc., --- U.S. ---, ---, 115

S.Ct. 1447, 1453, 131 L.Ed.2d 328 (1995), and

Gutierrez de Martinez v. Lamagno, 115 S.Ct.

2227, 2234 (1995).

If by this line of argument the amici mean

that federal courts must give judgment

without regard to the legal views of other

public actors, and without regard to the

resolution of contested issues in_ state

litigation, then their argument reaches far

beyond § 2254(d). It would mean that

deference in administrative law under

Chevron is unconstitutional; that the respect

accorded to Congress when it speaks on

constitutional questions (e.g., Wisconsin v.

New York City, --- U.S. ----, ---- - ---- , 116 S.Ct

1091, 1100-01, 134 L.Ed.2d 167 (1996); Weiss

v. United States, 510 U.S. 163, 177, 114 S.Ct.

752, 127 L.Ed.2d 1 (1994); Donovan v. Dewey,

452 U.S. 594, 603, 101 S.Ct. 2534, 69 L.Ed.2d

262 (1981); United States v. Watson, 423 U.S.

411, 416, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976)),

must be abandoned; and that the Full Faith

and Credit Clause (Art. IV § 1) conflicts with

Article I]. This position would demolish

Consider Stone v. Powell, 428 U.S. 465, 482,

law, and even though the

(claims under the Interstate Agreement on

Detainers); Withrow v. Williams, 507 U'S.

680, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993)

(claims based on Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). If

the Court could adopt Stone and consider

extending its scope, creating a gap between

the “merits” and the obligation to issue a writ,

then Congress may do the same by amending

§ 2254.

*16 Teague likewise establishes a disjunction

between the meaning of the Constitution and

the use of habeas corpus. If a state judgment

becomes final in 1992, and the Supreme Court

articulates a new rule of constitutional law in

1993, then a petition for collateral review in

1994 will fail--not because the state court was

“right” on the merits, but because some errors

of constitutional law do not support collateral

relief. Section 2254(dX1) codifies and extends

the principle of Teague, and if Teague is

consistent with Article IT], then so is §

2254(dX 1) as we have construed it.

The amici curiae neglect a basic distinction

that Plaut recognizes: Congress cannot tell

courts how to decide a particular case, but it

Copr. " West 1996 No claim to orig. U.S. govt. works

A-13

Page 13

may make rules that affect classes of cases.

See --- U.S. at --- - ---, 115 S.Ct. at 1452- 53;

see also Robertson v. Seattle Audubon Society,

503 U.S. 429, 441, 112 S.Ct. 1407, 118 L.Ed.2d

73 (1992). Congress cannot say that a court

must award Jones $35,000 for being run over

by a postal truck, but it may prescribe

maximum damages for categories of cases,

Carter v. United States, 983 F.2d 1141 (7th

Cir.1992), or provide that victims of torts by

federal employees cannot receive punitive

damages, see 28 U.S.C. § 2674. It may

establish that if the driver was acting within

the scope of his employment, the United

States must be substituted as a party and the

driver dismissed-even if that turns out to

deprive the victim of compensation. See

United States v. Smith, 499 U.S. 160, 111

S.Ct. 1180, 113 L.Ed.2d 134 (1991). Even for

claims based on the Constitution, there may

be rights without remedies. FDIC v. Meyer,

510 US. 471, 114 S.Ct. 996, 1005-06, 127

L.Ed.2d 308 (1994); Schweiker v. Chilicky, 487

U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370

(1988); Bush v. Lucas, 462 U.S. 367, 103 S.Ct.

2404, 76 L.Ed.2d 648 (1983); Chappell v.

Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76

L.Ed.2d 586 (1983). So too with § 2254(dX1).

Congress lacks power to revise the meaning of

the Constitution or to require federal judges to

“defer” to the interpretations reached by state

courts. Once the judicial power is brought to

bear by the presentation of a justiciable case

or controversy within a statutory grant of

jurisdiction, the federal courts’ independent

interpretive authority cannot constitutionally

be impaired. Regulating relief is a far cry

from limiting the interpretive power of the

courts, however, and Congress has ample

power to adjust the circumstances under which

the remedy of the writ of habeas corpus is

deployed.

This distinction between rights and remedies

is fundamental. Every day, courts decline to

disturb judgments that they know are wrong.

This is the principal function of the law of

judgments. Suppose A and B are plaintiffs in

the same lawsuit, which they lose; A appeals

and wins, while B does not appeal. It has now

been established that the judgment against B

is wrong. May B file a new suit to obtain the

~fii-

(Cite as: 1996 WL 517290, *16 (7th Cir.(Wis.)))

benefit of A's victory? The answer is “no.”

Federated Department Stores, Inc. v. Moitie,

452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed. 2d 103

(1981). The Full Faith and Credit Clause is

designed to make this result a matter of

constitutional entitlement. And although

today we think of claim preclusion (res

judicata) as a specialty of civil law, it is only

in this century that courts have treated civil

and criminal judgments differently. Recall

the discussion in Part ID above. See also

Felker, --- U.S. at ----, 116 S.Ct. at 2340; Paul

M. Bator, Finality in Criminal Law and

Federal Habeas Corpus for State Prisoners, 76

Harv.L.Rev. 441, 465-99 (1963) (tracing the

history).

*17 In suits under 42 U.S.C. § 1983 and

Bivens v. Six Unknown Named Agents, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),

courts frequently rule for the defendant even

though the plaintiff may be right on the

merits. Public employees receive the benefit of

the dovbt on legal questions and must pay

damages only when the legal right has been

sufficiently well established and particularized

that a reasonable official would have

understood that what he is doing violates that

right. See Anderson v. Creighton, 483 US.

635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523

(1987); Auriemma v. Rice, 910 F.2d 1449 (7th

Cir.1990) (en banc). Section 2254(dX1) creates

a related approach and is no less consistent

with Article I. Even in criminal cases,

courts sometimes enforce decisions they would

not have made in the first instance. Stone,

Teague, Leon, Nix, and the harmiess-error

cases, eg, Brecht v. Abrahamson, 507 U.S

619, 113 SCt. 1710, 123 L.Ed.2d 353 (1993),

are among many illustrations of the gap

between having a good legal argument and

winning release from custody. X and Y are

indicted for a jointemme. X pleads guilty, Y

pleads double jeopardy and wins, whereupon X

claims that his sentence is illegal and asks for

relief United States v. Broce, 488 U.S. 563.

109 S.Ct. 757, 102 L.Ed.2d 927 (1989), holds

that X must serve his sentence, because the

plea of guilty waives even arguments that in

retrospect are known to be correct

Section 2254(d¥1)'s requirement that judges

Copr." West 1996 No claim to orig. U.S. govt. works

. A-14

Page 14

apply “Federal law, as determined by the

Supreme Court of the United States”, rather

than their own understanding of the law, is

consistent with the hierarchical nature of the

federal judiciary. Judges of the inferior courts

must implement the views of their superiors,

from which it follows that many decisions of

the lower courts will be inconsistent with the

up the bulk of the work of a federal judge--not

only when interpreting the decisions of the

Supreme Court, but also when deciding cases

under the diversity jurisdiction, see Erie R.R.

v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.Ed. 1188 (1938), and when coping with

federal law that is not uniform geographically,

see Eckstein v. Balcor Film Investors, 8 F.3d

1121, 1126-27 (7th Cir.1993); Olcott v.

Delaware Flood Co., 76 F.3d 1538, 1544-48

(10th Cir.1996). See also Lehman Brothers v.

Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 40

L.Ed.2d 215 (1974); Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper, 17A

Federal Practice and Procedure § 4248 (2d ed.

1988), discussing a circumstance under which

a state court’s decision is directly binding in

federal litigation: the certification of a

question of law to a state court. Article I

does not establish a system under which

judges of the inferior federal courts always

must render judgment without regard to the

conclusions of other courts.

*18 Shortly before Brown v. Allen changed

the rules, Learned Hand could write with

confidence that upon habeas corpus a federal

court does not in any sense review the decision

jn the state courts. Here, for example, the

District Court could not properly have issued

the writ, no matter how erroneous the judge

had thought the state judge’s conclusion that

the evidence did not make out a prima facie

case of the deliberate use of perjured

testimony. The writ was limited to the

assertion of the relator’s rights under the

Fourteenth Amendment; and due process of

law does not mean infallible process of law. If

the state courts have honestly applied the

pertinent doctrines to the best of their ability,

--- F.3d ----

(Cite as: 1996 WL 517290, *18 (7th Cir.(Wis.)))

they have accorded to an accused his

constitutional rights. Schechtman v. Foster,

172 F.2d 339, 341 (2d Cir.1949). This

expression of the longstanding distinction

between unlawful custody, which supported a

writ of habeas corpus, and unlawful procedure

in the course of a trial, which did not, reflected

the law of the United States until 1953.

Congress has elected to move back in that

direction--but hardly very far, preserving

independent federal review on pure questions

of law, and subjecting mixed questions of law

and fact to review for reasonableness. We

would have to cast history to the winds to say

that this decision, which respects fully-

litigated judgments unless the state court has

gone seriously wrong, transgresses

constitutional limitations.

The American Bar Association's further

argument (which Lindh joins) that the Due

Process Clause of the Fifth Amendment

protects § 2254 from amendment is

unpersuasive. The ABA contends that

because federal “courts traditionally have

conducted a plenary review of (state) courts’

rulingis) on legal issues", the entitlement to

such a review has become a “fundamental

right” protected by the substantive component

of due process analysis. To establish this

“traditional” role, the ABA cites no case

before Norris v. Alabama, 294 U.S. 587, 55

S.Ct. 579, 79 L.Ed. 1074 (1935), a decision that

is hardly pertinent. (Norris was not a

collateral attack but arose on certiorari to a

state court under what is now § 1257.) The

summary of collateral review in Part 1.D of

this opinion, and Learned Hand's assessment

of the state of the law in 1949, should disabuse

any observer of the belief that plenary federal

review of state criminal] judgments is 60 firmly

rooted in American tradition that any

alteration has passed beyond legislative

power. The Constitution contains an express

limit on the power of Congress over the writ of

habeas corpus--the Suspension Clause. It is

not an appropriate exercise of the “judicial

Power” to supplement the Suspension Clause

with a rule that enhancements of the 20th

Century cannot be altered.

C

Copr. ” West 1996 No claim to orig. U.S. govt. works

A-15

-7)

Page 15

At last we reach Lindh’s arguments about the

restrictions the trial judge placed on his

lawyer's cross-examination of Dr. Roberts.

Lindh insists that he was entitled to cross-

examine Roberts about the allegations of

sexual misconduct in order to show, if not

actual bias, a reason Roberts may have had to

make his assessment more favorable to the

prosecutor. Wisconsin replies with two

arguments: first, that the decision is not

“contrary to ... clearly established Federal

law" because the Supreme Court has never

held that witnesses during the dispositional

phase of bifurcated trials are subject to cross-

examination; second, that if the

Confrontation Clause applies, the ‘decision to

limit cross examination was not “an

unreasonable application of" federal law,

because under the Confrontation Clause “trial

reasonable limits on such cross-examination

based on concerns about, among other things,

harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is

repetitive or only marginally relevant.” Van

Arsdall, 475 U.S. at 679.

*19 Lindh rejoins that the first of these

arguments is untenable because the Supreme

Court of Wisconsin did not decide the case on

that ground. Recall that the amended §

2254(d) begins by saying that a petition must

not be granted “with respect to any claim that

was adjudicated on the merits in State court

proceedings” unless subsection (1) or (2)

authorizes that step. Because the Supreme

Court of Wisconsin addressed only the

propriety of restricting the scope of cross-

examination, it did not adjudicate on the

merits the state’s “claim” about the scope of

the confrontation right. Lindh has this

backwards. Wisconsin is not making any

“claim” based on the Confrontation Clause. It

is defending against Lindh’s claim that the

Confrontation Clause entitled him to cross-

examine Roberts about the criminal

investigation of the sexual-misconduct

allegations. To prevail on this contention,

Lindh must establish two propositions: that

the Confrontation Clause applies at the

dispositional phase of a bifurcated trial, and

that the limitations on cross-examination were

(Cite as: 1996 WL 517290, *19 (7th Cir.(Wis.)))

excessive. The Supreme Court of Wisconsin

resolved this claim adversely to Lindh on the

merits, by deciding the second proposition

against him. Nothing in § 2254(d) calls on

state courts to fill their opinions with

discussions that by their lights are

unnecessary, as the price of avoiding de novo

review in federal court. There is a

fundamental difference in federal practice

between a “claim” and a legal theory. A

“claim” is a demand for relief from an

identified injury, which may be supported (or

defeated) by many different theories. See

Christianson v. Colt Industries Operating

Corp., 486 U.S. 800, 807-10, 108 S.Ct. 2166,

100 L.Ed.2d 811 (1988); Herrmann v. Cencom

Cable Associates, Inc., 999 F.2d 223 (7th

Cir.1993). The injury here is the restriction of

cross-examination; the relief, a new trial.

That claim has been resolved on the merits.

Lindh’s contrary position would have

especially unfortunate consequences when

state law leads a state court to bypass a

particular legal theory. Suppose Wisconsin

decides as a matter of its domestic law to

extend the right of cross- examination to

sentencing. A defendant then contends that

he is entitled to cross-examine a given witness

to uncover bias; the _tate’s highest court

disagrees on the ground that the potential for

bias is too remote to justify what might be a

lengthy line of questioning. If the defendant

then seeks a writ of habeas corpus, a state

should be entitled to reply that there is no

“clearly established Federal law” creating any

mght of cross-examination in non-capital

sentencing--indeed, that it is clearly

established that there is none, see Williams v.

Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 3

L.Ed.2d 516 (1959), Williams v. New York,

337 U.S. 241, 249-50, 69 S.Ct. 1079, 93 L.Ed

1337 (1949), United States v. Wise, 976 F.2d

393, 397 (8th Cur.1992) (en banc)--and that the

State court's decision therefore cannot be

“contrary to ... clearly established Federal!

law”. By Lindh’s argument this response is

impermissible, which could transmute a rule

of state law (the extension of cross.

examination to sentencing) into a rule of

constitutional law, at least for purposes of that

case Yet one well established rulc, not

Copr.* West 1996 No claim to orig. U.S. govt. works

A-16

Page 16

altered by the amendments, is that “[a) federal

court may not issue the writ on the basis of a

perceived error of state law." Pulley v.

Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79

L.Ed.2d 29 (1984). See also, e.g., Gilmore v.

Taylor, 508 U.S. 333, 342, 344, 113 S.Ct. 2112,

124 L.Ed.2d 306 (1993); Estelle v. McGuire,

502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d

385 (1991); Smith v. Phillips, 455 U.S. 209,

221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). If

the Confrontation Clause does not apply to a

particular proceeding, then a mistaken

restriction on the scope of cross-examination is

nothing but an error of state law (which is how

Justice Abrahamson’s dissenting opinion

approached Lindh’s arguments). We therefore

conclude that Wisconsin is entitled to make

both of its arguments, and we turn to the first.

*20 Starting from the premise that the

Confrontation Clause is inapplicable to

sentencing, Wisconsin contends that the

dispositional phase of a bifurcated trial is

more like sentencing than it is like the trial of

the merits. At the first phase of Lindh’s trial,

the jury determined that he deliberately killed

two people and tried to kill a third; he

pleaded guilty to two other crimes. Having

established all elements of the crimes beyond

a reasonable doubt, Wisconsin contends, it was

entitled to treat everything that followed as a

matter of what should be done with the

criminal]--whether to imprison him (and, if so,

where and for how long) or whether to “treat”

him. As the state sees things, the two

Williams cases necessarily establish that a

person who provides evidence relevant only to

disposition is not a “witness against" the

defendant for purposes of the Confrontation

Clause ("[iJn all criminal prosecutions, the

accused shall enjoy the right ... to be

confronted with the witnesses against him”).

Like questions about sentencing, the

consequences of an insanity finding may be

removed from the jury's purview. Shannon v.

United States, 512 U.S. 573, 114 S.Ct. 2419,

129 L.Ed.2d 459 (1994). Because “lack of

mental disease" is not an element of the

crimes under state law, Wisconsin was free to

decide that question by a preponderance of the

evidence and even to assign the burden of

persuasion to the defendant. A decision that

which sanity was an element of the offense),

then Roberts plainly would have been a

“witness against” him; and if a psychiatrist

would have been a witness against the

defendant in a unitary trial, how can

bifurcaticn change things?, Lindh wonders.

Perhaps one could respond that a chemist

testifving at trial that a certain white powder

is cocaine is a witness against the defendant,

but the same chemist testifying at sentencing

about the same subject (to determine the

quantity of the drug) is not, the contradiction

is built into the Supreme Court's current

junsprudence

*21 Not prepared to concede that point, Lindh

contends that Specht v. Patterson, 386 US.

605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967),

establishes that psychiatrists are “witnesses

against” defendants even at sentencing. If

that is correct, then Specht would “clearly

establish” the lesser included proposition that

Copr. * West 1996 No claim to orig. U.S. govt. works

A-17

—

“sentencing.” Compare Bullington v.

Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68

L.Ed.2d 270 (1981), and Gardner v. Florida,

430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393

(1977), with Schiro v. Farley, 516 US. 222,

114 S.Ct. 783, 127 L.Ed.2d 47 (1994), and Grey

punishable by life in prison, to be a mentally

ill habitual sex offender. Wisconsin has not

done anything of the kind. Murder is

punishable by life in prison; the elements

proved beyond a reasonable doubt at the first

phase of Lindh's trial therefore authorize the

punishment imposed on him. The

dispositional phase offered Lindh the

opportunity for mitigation, quite unlike

proceedings under the Sex Offenders Act in

Colorado.

It may well be that, when the Supreme Court

finally considers the question at issue here, it

will decide that all testimony bearing on the

defendant's mental! state, and its effect on his

punishment, comes from a “witness against”

the accused, and therefore must be subject to

cross-examination, no matter how the state

structures the trial and sentencing process.

=~ =

(Cite as: 1996 WL 517290, *21 (7th Cir.(Wis.))

But it has not yet so held, and such a

conclusion would be a nontrivial extension of

current law. We think it impossible to say

that “clearly established Federal law, as

determined by the Supreme Court of the

United States", entitled Lindh to cross

examine Roberts about the allegations of

sexual] misconduct with patients.

Lindh therefore has to demonstrate that the

state court's decision “involved an

unreasonable application of, clearly

established Federal law”. Davis and Van

Arsdall, which demonstrate that the

Confrontation Clause entitles defendants to

cross-examine adverse witnesses to expose

their bias to the jury, are equally clear that

the proper scope of cross-examination is a

matter of degree. We quoted the pertinent

language of Van Arsdal] above. The Supreme

Court of Wisconsin asked the legally correct

question by inquiring whether the trial judge

abused his discretion; this is exactly how Van

Arsdall poses the issue. And the fact-specific

answer cannot be called “unreasonable” even

if it is wrong (as some members of this court

who join this opinion believe). Roberts knew

that prosecutors were investigating

allegations made against him, but, by the

time he filed his final report and testified, he

also knew that the Dane County prosecutor

was not in charge. He may have thought that

the Milwaukee County prosecutor would

reward aid to the Dane County prosecutor--but

if Roberts thought that, he probably also

believed that his many pnor engagements as a

prosecutorial expert would carry even more

weight. Hindsight implies as much The

special prosecutor filed misdemeanor charges,

to which Roberts pleaded guilty in January

1989. He was sentenced to probation without

time in prnson, and he agreed to surrender his

medical license The special prosecutor

informed the sentencing judge of Roberts

many appearances as an expert witness over

the course of his long career, Lindh's case was

not singled out

*22 Nothing in the record shows that Koberts

altered his views between his initia! interview

Page 18

testimony at trial. The possibility that

prosecutors one thing orally at the outset of

the case but offering another view, less

favorable to Lindh, in the written report and

on the stand--was open to unfettered cross-

examination. Lindh’s counsel did not need to

mention the sexual misconduct allegations to

explore this ques*‘~n in depth. Under these

circumstances, a reasonable and responsible

based on the allegations that Roberts had

sexual relations with three female patients

would divert attention from the principal issue

at hand--whether Lindh had a mental disease

in January 1988-- without producing concrete

evidence of bias. When a district judge comes

to such a conclusion, a federal court of appeals

will exercise deferential review, see United

States v. Hernandez, 84 F.3d 931, 933-34 (7th

Cir.1996), and will accord greater weight to

thoughtfully reasoned decisions. Cf. United

States v. Beasley, 809 F.2d 1273, 1278-79 (7th

Cir.1987). Hernandez draws, for federal

practice, a line similar to that of § 2254(dX1):

De novo appellate review for core legal issues,

such as whether the Confrontation Clause

decisions within areas in which the

constitutional norm allows discretion. Section

2254(dX1) requires a federal court hearing a

collateral attack to accord at least that much

respect to the state courts.

The opinion of the Supreme Court of

Wisconsin in Lindh’s case is careful; _ it

correctly states the holdings of Davis and Van

Arsdall; it does not transgress any clearly

established principles; instead it addresses a

matter of degree about which thoughtful

people can, and do, differ. Several portions of

the opinion suggest that as a matter of state

law the court was holding the trial judge to an

even higher standard, which it thought

satisfied. Lindh believes that the state court

put too much weight on objective factors (such

as whether the Dane County prosecutor could

reward favorable testimony) and not enough

on subjective ones (such as the possibility that

Roberts credited the Dane County prosecutor

ancillary decision to deny Lindh’s motion to

supplement the record in this court. See ante,

at 16. Lindh wanted to demonstrate that the

record in the Wisconsin court reflected Dr.

Leigh Roberts’ suspension of privileges at the

University of Wisconsin Hospitals by the time

of the trial. This is not an effort to introduce

new evidence in any sense of that term, it is

only an effort to show us what was

legitimately in the record before the

Wisconsin courts. In my view, in light of the

changes in the law that have occurred and the

lack of prejudice to all concerned, we should

grant that motion.

I am also in substantial agreement with Parts

0A and IB of the majority's opinion, which

hold that the amended version of § 2254(dX1),

Ante, at 20. For better or for worse, that task

Koput, 142 Wis.2d 370, 418 N.W.2d 804

(1988), is not controlling as a matter of federal

law. These are questions, however, that go to

the application of amended § 2254(d), not to

its compatibility with Article I.

Finally, in broad terms I agree with the

majority's interpretation of the key

components of § 2254(dX1) and its explanation

of the difference between something “contrary

to” clearly established law and something that

is an “unreasonable application of such law.

My concern is with a few statements that |

fear could be misunderstood. For example, the

majority states broadly that the “contrary to”

language of § 2254(d) does not authorize

issuance of a writ whenever a court errs. If all

it means by that is that doctrines like

with more influence than he possessed, or was

harmless error continue to apply, then the

willing to exercise). By restricting in the new

construed properly, does not

unconstitutionally trample on the Article [I

with Lindh (before any allegations of

misconduct had come to light) and his

Copr. ~ West 1996 No claim to orig. U.S. govt. works Copr. * West 1996 No claim to orig. U.S. govt. works

A-18

--- F.3d ---

(Cite as: 1996 WL 517290, °23 (7th Cir.(Wis.))

clearly established law as declared by the

Supreme Ccurt of the United States and

because no deference is owed to the state

court's own views of that issue. The real

problem is a familiar one (though no easier for

being familiar): when is the issue purely one

of law, and when is it a mixed question of law

and fact. If the federal court concludes (de

application of the law. This, I agree, is

another way of describing the “mixed question

of law and fact” situation Unreasonableness

makes sense as a standard here, if for no other

reason than the deference that is owed to the

state court’s determination of the facts, see §

2254(e). The majority suggests that when the

constitutional question is a matter of degree,

rather than of concrete entitlements, the

federal court must honor a “reasonable”

decision by the state court. Most

constitutional entitlements in the area of

criminal procedure have elements of both if a

defendant's rights under Brady v. Maryland,

373 US. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963), have been violated with respect to part

of the prosecutor's file, it is little comfort that

the prosecutor turned over other Brady

material, the same goes for Confrontation

Clause nghts of the sort we have here. Just

because one can cross-examine a witness about

prior inconsistent statements, for example,

does not mean that cross. examination is

unnecessary to show that the same witness

had a plea bargain with the government

Many of these mghts, in short, will not be

matters of degree when we address them at

the proper level of detai! the depnvation will

be clear, and the federal court must decide

whether the nght was violated

0

*24 In order to explain why | disagree with

- )

Page 20

the majority's resolution of Lindh’s own case

used in Wisconsin cases where a plea of not

guilty by reason of mental] disease or defect is

Court on February 26, 1988, and entered pleas

district attorney's office. Recognizing the

potential for a conflict of interest, that office

' j

*-_-

~ F.3d —

(Cite as: 1996 WL 517290, *24 (7th Cir.(Wis.)))

referred the case to a special) prosecutor from

the Milwaukee district attorney's .

|

~

li

i

4

i

PaF SESE

it

iol

Hie

itl

*25 On September 12, 1988, the state

motion in limine requesting that the trial

proceedings to revoke his license were

pending Second, defense counse! noted that

University Hospitals had already suspended

Roberts’ privileges, which was important for

the jury to know. Finally, Lindh argued that

Roberts would have an incentive to please the

prosecution, regardless of the technical fact

that the particular prosecuting attorney was

from Milwaukee rather than Madison The

case had received state-wide notoricty, and

Roberts himself was a well-known expert

witness. Unmoved by Lindh's arguments, the

trial court granted the state's motion and

found that evidence relating to the

investigation of Roberts’ misconduct was

“totally irrelevant and immaterial! ~

motive to favor the prosecution in his

(

:

F

TEE

if

|

was the

prosecution's star witness during the second

(mental disease) stage of the proceedings.

unable to appreciate the wrongfulness of his

actions and conform his conduct to the law

when he was in such a state. Finally, the

other prosecution expert, Dr. Fosdal, offered

Copr * West 1996 No claim to orig. U.S. govt. works Copr.* West 1996 No claim to orig. U.S. govt. works

A-20

~ $29

(Cite as: 1996 WL 517290, *25 (7th Cir.(Wis.))

an opinion somewhere in the middle: he

agreed with Griffith that Lindh was suffering

from a mixed personality disorder, but he

disagreed that Lindh had experienced a brief

reactive psychosis during the shootings. With

this evidence before it, the jury found that

Lindh was able to appreciate the wrongfulness

of his conduct and to conform it to the law.

See Wis. Stat. Ann. § 971.15(1). In accordance

with Wisconsin law, the judge therefore

proceeded to the sentencing phase of the

proceeding, see Wis. Stat. Ann §

971.163Xa), and imposed a sentence of life in

prison.

*26 Wisconsin uses a three-phase proceeding

in cases in which the mental responsibility of

the defendant is at issue. A defendant is

entitled to couple a plea of not guilty with a

plea of not guilty by reason of mental! disease

or defect, pursuant to Wis. Stat. Ann. §

971.161). The statute establishes the order

of proceedings for the two pleas as follows:

(a) There shall be a separation of the issues

with a sequential order of proof in a

continuous trial. The plea of not guilty shall

be determined first and the plea of not guilty

by reason of mental disease or defect shal! be

determined second.

Section 971.13), Wis. Stat. Ann., provides

that “[mjental disease or defect excluding

responsibility is an affirmative defense which

the defendant must establish to a reasonable

degree of certainty by the greater weight of

the credible evidence “

If the jury finds the defendant not guilty on

the first plea. the court must enter a judgment

of acquittal and discharge the defendant %

971.1651¥d). If, on the other hand, the jury

finds the defendant guilty on the first plea,

then the trial continues into phase two and

the court withholds judgment pending the

jury's determination on the second plea Id

At the end of the second phase, the jury either

finds that the defendant is not guilty by

reason of mental disease or defect, or that the

defendant is guilty (i.e. his affirmative defense

fails) § 971.1653). At that point, the court

either enters a judgment of “not guilty by

reason of mental disease or defect.” or it

enters a judgment of conviction Id After the

Copr * West 1996 No claim to orig. U.S. govt. works

- A-22

The Wisconsin Supreme Court discussed the

used in Wisconsin from the guilt/innocence

phase, labeling it “a special proceeding in the

criminal process in which the defendant has

the burden of proof to establish his lack of

responsibility to a reasonable certainty by the

greater weight of the credible evidence.” 418

N.W.2d at 805. It rejected the public

defender's arguments that the usual

protections for a criminal trial, such as the

need for a unanimous verdict by a jury of

twelve, and the requirement of proof beyond a

reasonable doubt, applied in the phase two

proceeding. The affirmative defense tried

during phase two related only to

“responsibility,” and had the effect of

relieving the person of the sanctions for

criminal conduct. The finding of guilt during

concluded that phase two was “dispositional”

were inapplicable. Id. at 812.

approved that similarly shift the burden of

proof. See, e.g., Leland v. Oregon, 343 U.S.

790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952) (state

may require accused to prove his insanity

beyond a reasonable doubt), Patterson v. New

York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d

281 (1977) (constitutional to require defendant

to prove affirmative defense of extreme

emotional! disturbance in order to qualify for

mitigating factor that reduced a charge to

manslaughter), McMillan v. Pennsylvania,

477 US 79, 106 S.Ct. 2411, 91 L.Ed.2d 67

(1986) (constitutional to use “preponderance of

the evidence” standard for the State's burden

of proof at sentencing for minimum sentencing

law), Martin v. Ohio, 480 U.S. 228, 107 S.Ct.

1098, 94 L.Ed.2d 267 (1987) (constitutional for

Ohio to require defendant to prove affirmative

defense of self-defense by a preponderance, as

long as instructions required prosecution to

prove al! elements of the offense of aggravated

murder bevond a reasonable doubt) Thus, the

Wisconsin Supreme Court was on firm ground

Copr. " West 1996 No claim to orig. U.S. govt. works

A-23

yields either a finding of criminal

responsibility for the offense, and hence

incarceration, or a finding of no criminal

possibility of release under § 971.17 as trivial,

equating it to the chance of release under an

indeterminate sentencing scheme. This

position, however, overlooks both the critical

features of the second phase of tne Wisconsin

proceeding and the defining characteristics of

“dispositive” in the sense that it governs what

kind of further proceedings will be required,

but it is not “dispositive” in the same way a

sentencing proceeding is. At the risk of

stating the obvious, the purpose of a

sentencing hearing is to pronounce the

sentence, and the jury's phase two verdict does

not even begin to address that subject. A

sentence might be a fine or incarceration, or

some combination of the two. It might include

a period of probation or supervised release,

construing the term broadly, it might even

include commitment to a mental! institution

for a period of years. These issues are simply

not before the court or the jury during the

phase two trial in Wisconsin. Its sole purpose

is instead to decide whether the person is

criminally responsible, and hence will receive

a criminal sentence, or if the person is not to

be held responsible and instead is to receive

=

(Cite as: 1996 WL 517290, *28 (7th Cir.(Wis.)))

involuntary commitment to a mental

institution. (The latter, of course, occurs every

day in contexts far removed from the criminal

justice system.) The fact that the verdict of

“guilty” from phase one stands does not

distinguish this from many other situations--

such as self-defense, heat of passion, or

justification-- where it is clear that the

defendant committed the criminal act, but he

will not be punished for it. Furthermore, the

analogy to parole or release under an

indeterminate sentencing scheme does not

hold up. No such system of which I am aware

_ confers an entitlement on the defendant to win

release unless the court finds by clear and

convincing evidence that he must remain

incarcerated. Yet this is exactly how the

commitment rules in Wisconsin operate for

individuals found not to be criminally

responsible for their acts. See Wis. Stat. Ann.

§ 971.17(4Xd), (5).

The Supreme Court has always required

application of the Confrontation Clause to

proceedings that begin with a plea of not

guilty and conclude with a finding of guilt or

acquittal. Cruz v. New York, 481 U.S. 186,

190, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) (for

purposes of the Confrontation Clause, a

witness against a defendant is anyone whose

testimony “is part of the body of evidence th .

the jury may consider in assessing his guilt.");

Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct.

1065, 13 L.Ed.2d 923 (1965) (holding the right

of confrontation applicable to the states under

the Fourteenth Amendment). More than that,

it has applied the Confrontation Clause to

capital sentencing proceedings, where it is

true that the only difference is in the nature of

the sentence imposed (albeit an exceptionally

important difference), explicitly recognizing

the need for adversarial debate in such a

context. See generally Gardner v. Flornda,

430 U.S. 349, 360, 97 S.Ct. 1197, 51 L.Ed.2d

393 (1977) ("Our belief that debate between

adversaries is often essential to the truth.

seeking function of tnals requires us also to

recognize the importance of giving counsel! an

opportunity to comment on facts which may

influence the sentencing decision in capital

cases") The plain fact here is that Lindh

could, ir. the words of the Wisconsin Supreme

Copr. " West 1996 No claim to orig. U.S. govt. works

A-24

Page 24

Court, have been “relieveld) ... of the sanctions

for criminal conduct" at the end of the phase

two proceeding. See Koput, 418 N.W.2d at

812. It is no expansion of clearly established

Supreme Court law to find here that stakes of

this magnitude in the proceeding bring the

Confrontation Clause into play, as the

Wisconsin Supreme Court itself recognized.

*29 Decisions of the Supreme Court of the

United States also establish that Lindh’s right

to confront Roberts was impermissibly

restricted, through the trial] court’s grant of

the motion in limine. The two key cases, the

majority agrees, are Davis v. Alaska, 415 U.S.

308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and

Delaware v. Van Arsdall, 475 U.S. 673, 106

S.Ct. 1431, 89 L.Ed.2d 674 (1986). In the 1974

Davis decision, the Supreme Court began with

the observation that “[clonfrontation means

more than being allowed to confront the

witness physically.” 415 U.S. at 315. The

main and essential purpose of confrontation is

“to secure for the opponent the opportunity of

cross- examination.” Id. at 315-16 (emphasis

in original). Cross-examination involves both

the testing of the witness’s story and

impeachment or discrediting of the witness.

As the Davis Court said, “[a] more particular

attack on the witness’ credibility is effected by

means of cross-examination directed toward

revealing possible biases, prejudices, or

ulterior motives of the witness as they may

relate directly to issues or personalities in the

case at hand.” Id. at 316. The Court held that

counsel should have had the opportunity not

only to ask the witness in question whether he

was biased, but also to explore why he might

have been biased or otherwise lacked

impartiality.

The Court reiterated all these points in Van

Arsdall. Notably for Lindh’s case, it drew a

distinction between trial court control of cross-

examination to limit harassment, confusion,

repetition, or the marginally relevant, and the

prohibition of all inquiry into the possibility of

a witness's bias. 475 U.S. at 679. It held that:

a criminal defendant states a violation of the

Confrontation Clause by showing that he was

prohibited from engaging in otherwise

appropriate cross- examination designed to

-~ F.3d —-

(Cite as: 1996 WL 517290, *29 (7th Cir.(Wis.)))

show a prototypical form of bias on the part of

the witness, and thereby “to expose to the

jury the facts from which jurors ... could

appropriately draw inferences relating to the

reliability of the witness." 475 U.S. at 680,

in Lindh’s effort to show that Roberts, too,

might have been shading his testimony with

the ulterior motive of securing better

Confrontation Clause applies to the kind of

proceeding we have here, and that the

Confrontation Clause is violated when the

defendant is precluded from exposing “possible

biases, prejudices, or ulterior motives.” Davis,

415 US. at 316.

*30 The only question remaining is whether

the Confrontation Clause was violated here,

when the trial court precluded all inquiry into

the proceedings at which Roberts risked loss of

his professional license, obloquy from his

peers, and criminal conviction Both the

Wisconsin Supreme Court and the majority

here believe that the administrative transfer

of the case from the Dane County prosecutor's

office to the Milwaukee special prosecutor

erased al! possibility of concern from Roberts’

mind. In my view, this asked the wrong

question (i.e. was it sufficient when steps were

taken to assure formal insulation of the

Milwaukee prosecutor from the Dane County

office). and thus produced the wrong answer.

The focus must instead be on Roberts’

motivations to shade his testimony, just as it

was in Van Arsdall. It is worth recalling what

had already happened to Roberts, before

deciding whether the tria] court erred in its

total exclusion of the impeachment testimony.

The two critical dates are July 8, 1988, and

August 17, 1988. No later than July 8, 1988,

Roberts knew that a criminal investigation of

his activities was underway, with all that

Copr. * West 1996 No claim to orig. U.S. govt. works

A-25

Page 25

implied for his career. Yet it was not until

August 17, 1988, as far as this record shows,

that he first reduced his conclusions about

Lindh to writing. The majority comments

that there is no reason to believe Roberts

changed his mind between the initial

interview on the date of the shooting and

August 17, but there is obviously no way to

know if t* trial court forbade inquiry and

cross-examination on the matter. (The

majority suggests that Roberts was open to

“unfettered cross-examination” on this issue,

but that cannot be true given the fact that

Lindh’s counsel was forbidden to question

Roberts on the one fact that might have led

Roberts to change his mind: ~ his legal

problems, and his hope of winnmg favorable

treatment from the prosecutors.) By the time

the trial started, the state Medical Examining

Board had also filed a civil complaint against

Roberts to take away his license. Again, the

jury knew nothing of this; instead, it was

informed that he was “mid-west psychiatrist

of the year.”

Cross-examination on Roberts’ legal

difficulties was required for at least two

reasons. First, when expert witnesses are

proffered the jury is entitled to learn about

their qualifications. See Daubert v. Merrell

Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct.

2786, 125 L.Ed.2d 469 (1993). Particularly in

a field like psychiatry, where methodologies

are not readily subject to the kind of objective

scientific verification the Supreme Court

called for in Daubert, the jury is entitled to

evidence that will suggest what weight it

should give to the expert’s opinions. It is

fanciful to assume that a jury would give the

same weight to the “mid-west psychiatrist of

the year” as it would give to someone who was

facing both criminal charges and civil

proceedings to revoke his license. Second, as

Justice Abrahamson of the Wisconsin

Supreme Court so ably demonstrated in her

dissenting opinion, Roberts subjectively may

have believed or hoped that a “good

performance” on his part for the state might

cause the prosecutor to treat him leniently.

The fact that the prosecutor was called a

“special prosecutor” for Dane County, rather

than a member of the usual staff, cannot have

F.3d =~

(Cite as: 1996 WL 517290, *30 (7th Cir.(Wis.)))

made any difference from Roberts’ subjective

viewpoint. The courts regularly see witnesses

in criminal) trials who face charges in multiple

jurisdictions (federal and state, or several

states or parts of states), and the witnesses are

aware that their performance is being watched

by all concerned. If a witness were testifying

in a case before the Circuit Court of DuPage

County, Dlinois, and that witness «ere facing

charges in Cook County, the State’s Attorney

would have no ground for keeping out cross-

examination designed to show hope of

favorable treatment at the hands of the Cook

County authorities. Roberts’ case is no

different.

*31 Indeed, the case is even stronger for

finding that Roberts may have entertained

such a hope. Not all criminal prosecutions--

not even all murder prosecutions--receive

state-wide publicity, but the Lindh case did.

Roberts, who had testified by his own account

all over the state, knew that he was known in

Milwaukee, just as he was known in other

parts of Wisconsin. He had every reason to

begin his efforts for leniency on the witness

stand in Lindh’s case. (Although it is not

relevant to the trial court’s ruling on the

motion in limine here, the record of the actual

criminal sentencing that took place after

Roberts was convicted on the charges shows

that his expectations were well founded. Both

the prosecutor and the judge expressed intense

regret at having to sentence him to anything

at all, given his outstanding service to the

State over many vears.)

Van Arsdal! and Davis make clear that the

trial court did not face an “all or nothing”

option with respect to the proffered

impeachment testimony. It was entitled to

place reasonable limits on it, to avoid having

the jury distracted with Roberts’ problems.

The tmal court could, for example, have

permitted cross-examination about the

exustence of the pending charges and forbidden

discussion of their basis, instructing the jury

that the nature of the professiona] misconduct

charges was not relevant. This, or other

possible limitations, would have eliminated or

minimized any nsk of a salacious exploration

of Roberts’ sexual proclivities The problem

Copr. * West 1996 No claim to orig. U.S. govt. works

A-26

recall that only Roberts testified both that

Lindh had no personality disorder and that he

was responsible at the time of the offense.

The jury would have seen an entirely different

picture if Roberts had been discredited, and it

was left only with Fosdal, who agreed that

Lindh had a personality disorder but who

thought he was responsible at the time, and

Griffith, who thought Lindh had the disorder

and was not responsible for what he did.

Lindh, recall, had only to persuade the jury by

could not conform his actions to the law.

In my view, the adjudication of Lindh’s claim

in the Wisconsin courts resulted, in the words

of § 2254(dX1), in a decision that was contrary

and fact, the Wisconsin decision was an

- unreasonable application of clearly

established federal law. For the reasons I

have explained, I would grant the writ of

habeas corpus.

RIPPLE, Circuit Judge, with whom

ROVNER, Circuit Judge, joins, dissenting.

{(FN*)

*32 This case presents several issues

involving the new amendments to section

2254 of the Judicial Code. Among those issues,

the one of most enduring importance is

whether the new section 2254(d) is compatible

with the judicial role of the United States

courts required by the Third Article of the

Constitution. The problematic subsection,

identified as such by the President in his

approval of the legislation [FN1]) and by

legislators who favored and opposed the

measure, forbids the issuance of a writ of

habeas corpus unless the decision of the state

-- F.3d --—

(Cite as: 1996 WL 517290, *32 (7th Cir.(Wis.)))

court “was contrary to, or involved an

urreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States.”

1.

Several rules of statutory construction are

pertinent to our analysis. First, we must

remmber that the statute must be

interpreted as a whole. The amended

language therefore must be considered in

relation to the unamended language. We must

give every word of the statute a meaning. We

cannot assume that Congress intended certain

words or phrases to have no force and effect.

See Mackey v. Lanier Collection Agency &

Serv., 486 U.S. 825, 837, 108 S.Ct. 2182, 100

L.Ed.2d 836 (1988). We also must attempt to

interpret the statute in a manner that renders

it constitutional. See Johnson v. Robison, 415

U.S. 361, 366-67, 94 S.Ct. 1160, 39 L.Ed.2d

389 (1974). In doing so, however, we must not

give the statute a strained meaning that

clearly was not the intent of Congress. See,

e.g., Seminole Tribe of Florida v. Florida, ---

US. ----, ---- n. 9, 116 S.Ct. 1114, 1124 n 9, 134

L.Ed.2d 252 (1996).

We turn briefly to another preliminary

consideration. The text of the amended

statute sets forth what can be characterized

semantically as two separate requirements:

(1) that the underlying state decision be

contrary to or involve an unreasonable

application of federal constitutional law; and

(2) that the applicable federal constitutional

law have been determined by the Supreme

Court of the United States. Ease of

presentation and discussion certainly suggests

such a division and the majority adopts it as

its analysis. In the paragraphs that follow,

the same pattern will be followed as a

preliminary matter. However, we must also

remember that the structure of our analysis

can, and indeed often does, predetermine the

result. This two-pronged approach, helpfu! as

it is in the presentation of the material, must

be critically evaluated because, although it

has the virtue of clarity, it may well not

reveal the true operation and effect of the

statute and therefore present a skewed model

for final evaluation of the amendment's

Copr. * West 1996 No claim to orig. U.S. govt. works

A-27

x Page 27

constitutionality.

Finally, it is important to note that, both

before and after the amendment in question,

the fundamental task of the judiciary under

this statute remains unchanged: Congress has

given the federal] courts, including this court,

the task of determining whether a state

prisoner is “in custody in violation of the

Constitution or laws or treaties of the United

States,” 28 U.S.C. § 2254. Under the previous

version of the statute, the federal court

determined on its own the applicable federal

constitutional standard. The new statute

operates in a decidedly different manner.

Having given the federal cdurts the

jurisdiction to determine whether a person is

being held in custody in violation of the

Constitution and laws of the United States,

Congress now has also mandated how the

courts will determine the applicable

constitutional standard.

2.

*33 Under the new amendment, in

ascertaining whether there has been a

violation of the Constitution, the courts are

restricted to the case law of the Supreme

Court of the United States; they are not

permitted to rely as well upon their own

precedent. In short, Congress, although

continuing to vest the federal courts with the

authority to decide whether a person is being

held in state custody in violation of the

Constitution, has now specified that the

judiciary is required to disregard the work

product of one of its components. a source of

law upon which the courts otherwise would

rely in the adjudication of the case.

It is a “basic principle that the federal

judiciary is supreme in the exposition of the

law of the Constitution, and that principle has

ever since been respected ... as a permanent

and indispensable feature of our constitutional

system.” Cooper v. Aaron, 358 U.S. 1, 18, 78

S.Ct. 1401, 3 L.Ed.2d 5 (1958). As Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60

(1803), made clear in the earliest days of the

Republic, this obligation flows from the

constitutionally imposed obligation of. the

ll

~—<—

(Cite as: 1996 WL 517290, *33 (7th Cir.(Wis.)))

courts to decide cases within their jurisdiction

and to determine and apply the law necessary

to adjudicate those cases.

In determining whether Congress has

intruded impermissibly into the federal

judicial function, we must, as the majority

acknowledges, first § determine, with

specificity, the nature of the judicial power.

There can be no disagreement with the basic

proposition that the Constitution, in its very

text, makes clear that, once created, the

inferior federal] courts share the judicial power

with the “one Supreme Court” mentioned

explicitly in the constitutional text. Nor can

there be any disagreement that such power

must be exercised in light of the “revisionary”

jurisdiction of the Supreme Court. Beyond

this point, however, it is difficult to determine

the precise contours of the majority’s concept

of the federal judicial power. Despite its

emphasis on the distinctive responsibility of

an inferior court, it describes the role of that

inferior court as simply placing a “gloss” on

the work of the Supreme Court. If we are to

understand the constitutional function that we

are duty bound to protect, a far more carefully

drawn description of its contours is indicated.

It helps little to define it in the negative; it is

obviously not the “agency relationship” that

exists between the Chief Executive and the

executive departments of the government.

The relationship and interreaction of the

various levels of the judiciary in molding

constitutional doctrine is the product of a

carefully crafted balance of power between the

judiciary and the legislative branch. That

balance of power 1s constitutionally based

Through its control of the appellate

jyunsdiction of the Supreme Court and the

entire jumsdiction of the lower courts,

Congress certainly can influence the

development of the constitutional doctrine

However, just as there are limits on the

constitutiona! authority of the judicial branch,

s0 too there are limits on the power of

Congress to dictate the process of decision-

making within the judicial department with

respect to the meaning of the Constitution.

Although Congress has the authority to create

and abolish the lower federal courts and to

Copr. * West 1996 No claim to orig. U.S. govt. works

within the province of the Supreme Court.

the authority to bring a court of appeals to

the lower courts ought to be permitted to

engage in constitutional doctrinal

development.

*34 When a case comes before an inferior

federal court in the normal course of its

exercise of jurisdiction, it is the duty of that

court to determine the constitutional question

before it. The inferior courts have a clear

responsibility to refine the basic constitutional

principles enunciated by the Supreme Court.

The task is accomplished through the process

of reasoned elaboration disciplined by the

doctrines of stare decisis and precedent. The

duty “to say what the law is” is a unitary one

within the unitary judicial department created

by the Constitution. See Plaut v. Spendthrift

Farm, --- U.S. ----, ----, 115 S.Ct. 1447, 1457,

131 L.Ed.2d 328 (1995) ("not a batch of

unconnected courts, but a judicial department

composed of ‘inferior Courts’ and ‘one

Supreme Court’ ") (emphasis in original). In

performing that function, an inferior federal

court is not free to determine the content of

the Constitution without reference to the

existing jurisprudence of the Supreme Court of

the United States. It must decide the case,

but it must decide it as it believes, after study

of and reflection upon existing case law, the

Supreme Court of the United States would

decide it under the Constitution. See Levine

v. Heffernan, 864 F.2d 457, 459 (7th Cir.1988),

cert. denied, 493 U.S. 873, 110 S.Ct. 204, 107

L.Ed.2d 157 (1989). The Supreme Court then

determines, in due course, whether the

doctrinal development will be short- lived or

{ }

~—

-- F.3d ----

(Cite as: 1996 WL 517290, *34 (7th Cir.(Wis.)))

concrete, tangible form.

. v. United States, 409 U.S.

151, 175, 7 93 S.Ct. 408, 34 L.Ed.2d 375 (1972)

J., dissenting). The longevity of our

constitutional jurisprudence is a matter that

Congress can control only through the

A

:

Pes

In section 2254, Congress has given the

district court the task of determining whether

a person is being held in violation of the

Constitution. To require the federal judiciary

to hold that there is no constitutional violation

simply because there is no case of the Supreme

Court of the United States directly on point, is

to deny it the right to refer to the corpus of

jurisprudence to which it turns when it must

“say what the law is.” Marbury v. Madison, 5

U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803);

see also Wright v. West, 505 U.S. 277, 305,

112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (“We

have always held that federal courts, even on

habeas, have an independent obligation to say

what the law is.”) (O’Connor, J., concurring).

The amended statute requires that we decide

whether a person is in custody in violatihe law

is.”) (O'Connor, J., concurring). The amended

statute requires that we decide whether a

person is in custody in violation of the

Constitution without consulting the body of

law that determines what the judicial

department says the Constitution requires

{[FN2)

3.

*35 Limiting the judicial function of

determining the meaning of the Constitution

Copr. * West 1996 No claim to orig. U.S. govt. works

Page 29

to a scrutiny of the decisions of the Supreme

Court is, in itself, a sufficient constitutional

infirmity to vitiate the amended statute. An

examination of the “second requirement,”

independent of the first, raises, however,

substantial additional concerns about the

amendment’s effect on the constitutional

if the Supreme Court’s rendition of the

Constitution is “clearly established,” it

becomes the rule of decision only if the state

court’s interpretation of tthe federal

Constitution is deemed to be very different

from that of the Supreme Court of the United

States. Otherwise, the state’s view of the

Constitution, not the Supreme Court’s view, is

operative.

Cast in its best light, this argument, at

bottom, characterizes the restriction contained

in the amendment as one of remedy: Congress

simply has determined that the writ is to be

available to state prisoners only when the

state court’s departure from the federal norm

had been “unreasonable.” Habeas relief is to

be limited to those instances in which the

degree of departure from the federal standard

is so great as to have worked a gross

deprivation of federal protection. This

argument can be best evaluated by examining

the support that the majority offers for this

characterization. In its attempt to justify this

approach, the majority points to other

instances in which, despite the existence of a

constitutional violation, plenary relief may

not be available to an aggrieved individual.

A-28

A-29

=

(Cite as: 1996 WL 517290, *35 (7th Cir.(Wis.)))

At first glance, these instances present

seductive analogues to the present situation.

Upon closer scrutiny, however, it is clear that

in none of these instances is the federal court

deprived of its essential responsibility and

prerogative to define the meaning of ‘tue

federal Constitution and to apply it to the case

before it. Therefore these superficial

comparisons provide no support for the statute

under review in the present case.

There are several instances in which federal

courts, although both declaring and applying

the Constitution of the United States, place

significant limitations on the available

remedy. For example, in adjudicating a civil

rights matter under section 1983, a federal

court determines the applicable federal

constitutional rule and applies it to the case

before it. Its view, not the view of any other

sovereign, determines tthe applicable

constitutional standard. Nevertheless, if a

violation of a substantive constitutional

standard is identified, the available remedy

will vary depending on the circumstances.

{(FN3]} So too, in our Fourth Amendment

jurisprudence, the legality of the search

always remains a matter of federal

constitutional law, although the remedy of the

exclusionary rule is inapplicable when the law

enforcement officer reasonably relied upon a

judicially issued search warrant. See United

States v. Leon, 468 U.S. 897, 925 (1984).

*36 In the area of habeas corpus, the same

pattern is evident. Stone v. Powell, 428 U.S

465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976),

simply holds that violations of the Fourth

Amendment are not cognizable on habeas

review because the violation does not affect

the truth-finding process that is the principal

focus of habeas relief There is no deprivation

of either the law declaring function or the

adjudicatory function of the federal courts

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,

192 L.Ed.2d 334 (1989), likewise leaves intact

the essential functions of the adjudicatory

process. The case is adjudicated by the federal

court on the basis of federal law. The rules of

retroactive application of new developments

are adjusted to take into account the nature of

habeas relief [FN4) It is not accurate,

Copr.’ West 1996 No claim to orig. U.S. govt. works

7 Page 30

therefore, to term this amendment a mere

extension of the principle of Teague. There is

a qualitative difference-a constitutional

difference--between fixing the time frame at

which federal law will be applied and

requiring that the federal court defer to any

application of constitutional principle that

cannot be characterized as unreasonable.

Under the latter approach, mandated by the

amended statute, the federal court must be

content with a careful application of the

Constitution, even if it is wrong. In essence,

the federal court is free to have its own

opinion of what federal law requires, but it

must grant or deny the writ on the basis of

another non-federal tribunal’s view. Federal

courts, however, must not merely expound on

the cases before them; they must decide them.

Plaut, --- U.S. at ----, 115 S.Ct. at 1453. The

judicial power is the authority, and the

obligation, to adjudicate the case.

Adjudication involves more than just the

opportunity to declare the content and

meaning of the law; it also involves the

authority to apply that law as well.

4.

The magnitude of the deprivation worked on

the judicial function can best be appreciated,

however, by assessing the impact of the two

phrases of the amendment together. Under

the new scheme, the only permissible

reference to federal constitutional law is to

clearly established Supreme Court precedent.

That precedent becomes the rule of decision

with respect to the issuance of the writ only if

the state court reaches an unreasonable view.

When we pause to reflect on the role of the

Supreme Court of the United States in

constitutional adjudication and on _ the

majority's view as to how reasonableness is to

be measured, it becomes clear that any

suggestion that a federal rule of decision will

be applied to adjudications under section 2254

is illusory.

First, it must be remembered that it has

never been the role of the Supreme Court of

the United States to micro-manage the

development of federal constitutional

jurisprudence. From the days of the Great

Chief Justice in McCullough v. Maryland, 17

at REET mes

~~ —

-~ F.3d

(Cite as: 1996 WL 517290, *36 (7th Cir.(Wis.))

U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1818)-

reassessment of the certiorari i statute, see 28

function has been to set, at a significantly

Art. VL On habeas review, the majority holds

that it is not simply a matter of the lower

federal court’s giving respectful heed to the

interpretation of the federal constitution

rendered by the state court. Rather, the lower

federal court must accept as the federal rule of

decision the state court's view as preferable to

its own. Moreover, given the broad level of

difference between the views of the federal

and state court may indeed be substantial.

Nevertheless, the majority tells us that these

issues are “[qluestions of degree” and that a

reasonable decision of the state court must be

honored. “Questions of degree” are subjects

“painted in shades of grey, rather than in

contrasting colors..." This statement stands

in stark contrast to the Supreme Court's own

description of “contrasting colors” in Estin v.

Estin, 334 US. 541, 545, 68 S.Ct. 1213, 92

L.Ed. 156] (1948): “there are few areas of the

law in black and white. The greys are

dominant and even between them the shades

are innumerable. For the eternal problem of

the law is one of making accommodation

between conflicting interests” The majonty

requires deference on al! questions of degree

Yet, as the Supreme Court itself reminded us

in Estin, discerning among the shades of grey

is the essence of the adjudicatory function.

See Miller v. Fenton, 474 U.S 104, 112, 106

S.Ct. 445, 88 L.Ed.2d 405 (1985) (“But, as we

now reaffirm, the ultimate question whether,

under the totality of the circumstances, the

Copr. " West 1996 No claim to orig. U.S. govt. works

Page 31

challenged confession was obtained in a

manner compatible with the requirements of

the Constitution is a matter for independent

federal determination”). By suggesting that

the amendment deprives the federal district

court of responsibility for all questions of

degree, the majority points graphically to why

the amendment does not leave intact the

integrity of the Third Branch: ‘+ deprives the

federal court not only of its prerogative to

determine the content of federa] law, but also

of its right and duty to apply that law to the

case before it.

As the Supreme Court has reaffirmed “time

and again,” the Constitution assighs to each of

the three coordinate branches their own

responsibilities and vests in each their own

powers. Morrison v. Olson, 487 U.S. 654, 693,

108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). And

although the Supreme Court has rejected the

formalist view that there is to be no “control

or coercive influence,” [FN5) exerted by one

branch over another, if one branch, through its

actions, “unduly interfere[s)" with the role of

another, such actions are void. Morrison, 487

US. at 693. In making this determination of

“whether an Act [of Congress) disrupts the

proper balance between the coordinate

branches,” we are to focus “on the extent to

which it prevents ... (another) Branch from

accomplishing its constitutionally assigned

functions." Nixon, 433 U.S. at 443. The

amended statute significantly “interfere(s)”

with the judicial role and to a great extent

prevents the judicial department from

accomplishing its “constitutionally assigned

functions.” Simply put, the statute, as

amended, deprives a federal court of the right

to adjudicate the case. And a court that does

not adjudicate advises: a role decidedly

different than the one the Constitution

envisions for courts and judges of the Third

Article.

FN* Judge Ripple also joins Part Il of Judge Wood's

dissenung Opimon.

FN1. Suatement of the President of the Unned Sutes

Upon Signing the Antierrorism Bill, April 29. 1996.

1996 WL 203049 (White House)

A-30

F.3d Page 32

(Cite as: 1996 WL 517290, *37 (7th Cir.(Wis.)

FN2. The majority appears to sense the incongruity

of 1s position when m seemingly acknowledges that

such an intrusion imto the federal judiciary’s

adjudicative function would not be permissible in the

regular case or controversy but is acceptable in the

case of habeas corpus. For the majority, a habeas

corpus proceeding is somehow less of a

constitutional case or controversy properly within the

jurisdiction of the federal courts. Although this

distinction is apparently crucial tw its holding, the

majority never discloses how or why the habeas

jurisdiction of the federal courts somehow is

different than other areas of the courts’ jurisdicuon.

Although it is very clear that the Congress, having

once enacted a cause of action and vested a tribunal

with the authority to adjudicate cases arising under

it, can no longer dictate the rule of decision for the .

resolution of cases under i. we are told—as a matter

of ipse dixit—that the situation is different with

habeas

FN3. For instance, although a state official's conduct

may be determined to have violated a prevailing

conststutional standard, the official may be held to

enjoy absolute immunity, see Sump v. Sparkman,

435 US. 349, 98 S.Ci. 1099, 55 L.Ed.2d 331

(1978) (holding that a judge enjoys absolute

immunity for judicial acts within his jurisdiction), or

qualified immunity, see Malley v. Briggs. 475 U.S

335. 340. 106 S.Ct. 1092. 89 L.Ed.2d 271 (1986)

(staung that qualified wmmunity for executive

officials--state or federal--1s the norm). from a

damages remedy. although not from a prospective

equitable remedy

FN4 Teague, 489 US. at 309 (noting that in the

haheas review conte xt “lalpplication of

constitutional rules not m existence at the me a

comsicuon became final seriously undermines the

principle of finality which 1s essential w= the

Operation of our Crominal justice SvStem)

FNS Nixon 8 Administrator otf Gen Servs

Admin . 433 U.S 425, 441-42. 97 $. Ci. 2777. §3

lL. kd 2d 867 (1977) (curing Humphrey's Ex ¥

Lnuted Sustes. 295 US 602. 629. 55 S$ Ci 869. 79

L Ed 1611 (1935))

END OF DOCUMENT

Copr.* West 1996 No claim to orig. U.S. govt. works

A-32

LJ

-

- eee

ocr 4st" bifurcated the issue in the manner suggested, primarily because Lindh had no

UNITED STATES DISTRICT COURT—--- ~~ objection to the State’s preference to proceed with the constitutional issue first.

EASTERN DISTRICT OF WISCONSIN

The Court recently reviewed this file with an eye towards deciding the

constitutional issue briefed by the parties. During the course of this review,

=3 AARON LINDH, ere

s 5 3 however, it became clear to the Court that proceeding in the manner requested by

> fe Petitioner .

c ‘

gas : the State was a mistake. Indeed, after a thorough review of the decisions from the

2% P -“vS- Case No. 92-C-690 ;

5283 Wisconsin Court of Appeals and Wisconsin Supreme Court in this case, it is clear

is - z JAMES P. MURPHY, ° that those courts, along with the trial court, operated under the assumption that

>23s

5 g : é Respondent. the Sixth Amendment's right to confrontation applied during the insanity phase of

atten Lindh’s trial. Ultimately, however, the Supreme Court affirmed the trial court’s

DECISION AND ORDER decision denying the cross-examination at issue on relevancy -- not constitutional --

grounds. The Supreme Court did so after a thorough review of the evidence and

Steet

This matter comes before the Court on Aaron Lindh’s ("Li ndh") the voir dire relied upon by the trial court, evidence which is already before the

petition for a writ of habeas corpus under 28 U.S.C. § 2254. By wey of Court through respondent’s answer herein. Thus, if the state courts were correct

procedural background, the Court first notes that this matter was initially pending m thee Cotermingtion of the relevency lneue, the constint aun cee cs Ge

before another branch of this District Court, at which time Lindh filed a motion to reeched. The Court therefore disc © Sie eetovency love fret.

compel the State to produce the transcripts of the underlying state trial court . MOTION FOR TRANSCRIPTS

proceedings. The State opposed this motion on the grounds that the Court should SaaS CEE OF OSS er CHEE & Oe Oe cout

first address a preliminary constitutional issue raised by Lindh’s petition, Le., cape ieee mae oe — —

whether the Sixth Amendment's right to confrontation applies during the insanity CORSERITERE Seeus Met. Mow Cat the a SO Sa

‘

phase of a bifurcated criminal proceeding. This issue, the State argued, did not septate ws see . oe ae Te —_

require reference to the voluminous transcript and, if decided in the State's favor, : SNUG: OF RP ON, Oe sg Puen ocuaine 5 Sane

would obviate the need to reproduce the same. The matter was subsequently meneES GUBEEN. Mere, Ge question twelved ts ee "o-

examination of a psychiatric doctor who examined Lindh was relevant as showing

transferred to this Court. After a preliminary review of the pleadings, the Court i

B-2

B-1 |

re)

72a *

¢

8

> 724

potential bias on the part of the doctor. When Lindh first learned of the potential

for bias, his counsel submitted a list of factual questions to the assistant district

attorney, seeking detailed information as to the facts supporting the allegations of

bias. The Court has a copy of those questions. in response, the assistant district

attorney provided detailed answers to all of the questions submitted. The Court

has @ copy of those answers. During hearings connected with the trial, the State

moved to exclude any cross-examination regarding the facts and circumstances of

the alleged bias on relevancy grounds, arguing that the facts established by the

State in response to Lindh’s written questions establishes that the doctor at issue

could not possibly have been biased in the manner alleged by Lindh. The trial court

first agreed with the State, but then later allowed the parties to voir dire the

doctor, outside of the presence of the jury, regarding the facts and circumstances

Supporting the claims of bias. The Court has a copy of the voir dire transcript.

The trial court found, and the Supreme Court agreed, that the testimony brought

Out On voir dire, which included cross-examination by Lindh’s counsel, fully

confirmed the facts detailed in the State’s responses to Lindh’s written questions.

Lindh himself acknowledges that the “voir dire disclosed no material variance

between Dr. Roberts own responses and Prosecutor Burr’s written answers to the

defense’s Specific Demand for Exculpatory Evidence.” (Respondent's Answer, Ex.

B at 16, fn. 3.) The trial court then re-affirmed its legal conclusion that the

undisputed facts did not give rise to a reasonable inference of bias, and therefore

denied the proffered cross-examination on relevancy grounds.

Therefore, it appears to the Court that the facts underlying Lindh’s

petition are undisputed and contained in Lindh’s written questions, the State's

B-3

written responses thereto, the voir dire transcript, and the Wisconsin Supreme

Court's discussion of the issue in its written opinion, found at State v. Lindh, 161

Wis.2d 324 (Wis. 1991). All of the foregoing are already before the Court by way

of the respondent's answer. The question before the Court, therefore, is simply

the legal question of whether those facts were relevant, i.e., whether they gave

rise to a reasonable inference of bias, such that a reasonable jury could have

disregarded Roberts’ testimony as biased and thereby reached a different verdict

on the question of insanity. The Court need not have any other portions of the

record before it to make that determination. Nor is a traverse necessary from the

petitioner. indeed, on this issue, the Court already has the benefit of the briefs

submitted by petitioner to the Wisconsin Court of Appeals and Wisconsin Supreme

Court, as well as the decisions from those courts, including the Court of Appeals’

decision, which agreed with petitioner’s arguments.

il. RELEVANCY

A. Facts.

In the underlying proceedings, Lindh was charged with, inter alia, two

counts of first degree murder and one count of attempted first degree murder. id.

The day of the shootings, and shortly after Lindh was taken into custody, Dane

-ounty Assistant District Attorney John Burr ("Burr") retained Dr. Leigh Roberts

("Roberts"), a forensic psychiatrist, anticipating that Lindh or others might raise

questions Concerning Lindh’s mental state during the shootings at issue. id., 161

Wis.2d at 335. That same night, January 15, 1988, Roberts interviewed Lindh in

the hospital for purposes of assessing his mental state. |d., at 336. The interview-

B-4

consisted of two sessions of questioning separated by a single 12-minute break.

Id., at 336-38.

On February 26, 1988, Lindh was arraigned and entered pleas of not

guilt, and not guilty by reason of meraai disease. id., at 338. Roberts was

appointed by the Court as one of the doctors who were to examine Lindh on behalf

of the State. Id. Shortly thereafter, on March 8, 1988, Roberts became aware

that the University of Wisconsin Hospital was investigating an allegation that he

had engaged in sexual misconduct with a female patient. id. At the time, Roberts

was generally aware that, if proven true, such allegations could subject him to

criminal penalties under a state statute, and he presumed that any such

prosecution, if it came to that, would occur in Dane County, where the allegations

were made, and would be prosecuted by someone in the Dane County District

Attorney's office. Id. Although he admits having this general knowledge, Roberts

did not give any particularized thought to the possibility of such a prosecution by

the Dane County district attorneys. Id. Sometime in May, 1988, Roberts became

aware that the Medical Examining Board was also investigating allegations of

sexual misconduct by Roberts with three female patients. Id., at 339. Roberts

learned of this investigation when he received a request for records from the

examining board. id.

On June 22, 1988, Roberts interviewed Lindh again, this time at the

Dane County jail. Id. The next day, unbeknownst to Roberts, University of

Wisconsin Hospital attorneys met with the Dane County District Attorney and

referred to him the allegations against Roberts. Id. At that meeting, the District

Attorney informed hospital officials that he would immediately seek to transfer the

B-5

AO 72A

‘Rev. 8/82)

matter to @ special prosecutor because of the potential for a conflict of interest

between his office and Dr. Roberts. Id. On June 28 or 29, 1988, the Dane

County Circuit Court appointed the Milwaukee County District Attorney’s office as

special prosecutor for the Roberts matter. ld. At this time, Roberts had no

knowledge that charges had been referred to the Dane County District Attorney or

that @ special prosecutor had been appointed to investigate those charges. Id. No

member or representative of the Dane County District Attorney's office, nor any

police officer, ever contacted Roberts or his counsel concerning these allegations.

ld. Nor did anyone from the Dane County District Attorney’s office ever make a

formal or informal decision as to whether a formal investigation should proceed,

or ever contact the special prosecutor regarding the actual investigation. Id. at

339-40.

On July 8, 1988, Roberts became aware, for the first time, through

his attorney, that allegations had been referred to the Dane County District

Attorney's office. Id., at 339. At the same time, Roberts also learned that a

special prosecutor from outside of Dane County had already been appointed to

investigate the allegations. Id., at 339-40. On August 17, 1988 Roberts

submitted his report concluding that Lindh was not suffering from a mental disease

or defect at the time of the shootings. Id., at 340. On August 22, 1988, Roberts

interviewed Lindh fur the last time. Id.

On September 7, 1988, Lindh submitted his aforementioned discovery

demand upon the State seeking detailed information as to the misconduct

allegations against Dr. Roberts and the timing and substance of Roberts knowledge

regarding the same. Id. The State promptly responded, and Lindh acknowledged

B-6

40 724

that the S* «te fully complied with his discovery request. Id., at 340-41. Ina

hearing on the State’s subsequent mution in limine, the trial court heard oral

argument on the same and concluded that the proffered evidence -- consisting of

the State’s responses to Lindh’s discovery questions -- was irrelevant. Id., at 341-

43. The trial court reasoned that in light of the fact that the allegations against Dr.

Roberts were almost instantaneously transferred out of the Dane County District

Attorney's office to the special prosecutor, there was no possibility of bias, motive

or interest on the part of Dr. Roberts. Id. at 343. The trial court also concluded

that, even if relevant, the probative value of the evidence had to be weighed

against the risk of “unfair prejudice", and found that the latter outweighed the

former, providing another ground tor precluding the cross-examination at issue.

Id. At the same time, however, as indicated earlier, the trial court allowed Lindh’s

counsel to voir dire Dr. Roberts outside the presence of the jury, which voir dire

essentially confirmed and reiterated the information contained in the state's

response to Lindh’s discovery questions. Id., at 343-44. For that reason, the trial

court found no reason to alter its prior ruling granting the State’s motion in limine.

Id.

On appeal, the Wisconsin Court of Appeals reversed the trial court's

ruling regarding the relevancy of the proffered cross-examination and the risk of

unfair prejudice presented by the same. State v. Lindh, 156 Wis.2d 768

(Wis.Ct.App. 1990). The Wisconsin Supreme Court granted review of the

appellate court's decision and reversed the same, finding that the trial court did not

abuse its discretion in finding the proffered evidence irrelevant. Lindh, 161 Wis.2d

at 345-49. This Court agrees.

‘

B. Analysis.

As The Wisconsin Supreme Court explained, “[t}he confrontation

Clause of the Sixth Amendment of the United States constitution guarantees the

right of an accused in a criminal prosecution ‘to be confronted with the witnesses

against him’" Lindh, 161 Wis.2d at 345-46. More specifically, "(t]he United

States Constitution protects the opportunity to cross-examine a witness with

regard to bias and motivation to lie." Bell v. Coughlin, 778 F. Supp. 164, 174

(S.D.N.Y. 1991), aff'd, 17 F.3d 390 (2nd Cir. 1993), cert. denied, 114'S.Ct. 2685

(1994). Indeed, ‘the exposure of a witness’ motivation in testifying is a proper

and important function of the constitutionally Protected right of cross-

examination.’” Lindh, 161 Wis.2d at 346. However, the U.S. Supreme Court has

also ruled that the right of cross-examine is not unlimited:

[T)rial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable

limits On such cross-examination based on concerns

about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally

relevant.

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431 , 1435 (1986). Thus

it is said that “[t]he confrontation clause ‘guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and

to whatever extent, the defendant might wish.’” Id., quoting Delaware v.

Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294 (1985). "Furthermore, the denial

of a defendant’s opportunity to impeach a witness for bias and motivation to lie,

like other Confrontation Clause errors, is subject to Chapman harmiess-error

analysis.” Bell, 778 F. Supp. at 174.

B-8

72A

~v. 8/82)

Site |

Under the foregoing principles, the question becomes whether or not

the jury might have reasonably assessed Dr. Roberts’ credibility and Opinion

differently had Lindh’s defense counsel been permitted to pursue the line of

questioning regarding the allegations of sexual misconduct. See Bell, 778 F. Supp.

| at 174. If the evidence Lindh hoped to bring out could not reasonably support the

conclusion that Roberts was biased against Lindh or had an ulterior motive to

render an opinion favorable to the prosecution’s case, the Confrontation Clause

was not violated. As stated earlier, the evidence Lindh howed to bring out

consisted of the facts contained in Lindh’s voir dire of Roberts and the State’s

answers to Lindh’s written discovery demands. That evidence clearly shows that,

by the time Roberts was aware that the allegations of sexual misconduct had been

referred to the District Attorney’s office, the matter had already been transferred

to &@ special prosecutor outside of Dane County. At that point, because the matter

was already out of the hands of Dane County authorities, Roberts had no reason

to believe that he would obtain some form of leniency in exchange for an opinion

favorable to the prosecution in the Lindh case. The Court agrees wholeheartedly

with the analysis of the Wisconsin Supreme Court in this regard:

Clearly, up until July 8, 1988, there was no

reasonable possibility for bias, motive or interest on the

part of Dr. Roberts because until that date he did not

know that any allegations had been referred to the Dane

county district attorney's office. Because Dr. Roberts

became aware of the immediate transfer of the matter

to the special prosecutor at the same time, he had no

reason to believe after July 8, 1988, that the Dane

county district attorney's office would be in a position

tO prosecute him and thus possibly favor him in

exchange for his testimony. Dane county was not ina

position to make any “deals,” reduce any charges, or

even make any recommendation as to any criminal

B-9

investigation or prosecution against Dr. Roberts and Dr.

Roberts knew it. He therefore had no reason to favor

the prosecutor in the instant case by testifying or giving

@ report favorable to him.

The relationship between the Dane county district

attorney’s office and Dr. Roberts which would be

necessary to suggest bias, interest o: motive simply did

not exist. The disclosure provided by the prosecutor

upon the request of the defense and the voir dire of Dr.

Roberts unequivocally showed the same thing. There is

no reason whatsoever to conclude that there was fertile

ground for even the seed of a “deal” to be sewn and to .

germinate under those circumstances. To suggest that

Dr. Roberts’ testimony would be influenced in favor of

the prosecution under these circumstances amounts to

mere speculation. There being no nexus between the

future criminal investigation and prosecution of Dr.

Roberts, if any were to be undertaken, and the Dane

county district attorney's office, a jury could not

reasonably find a logical connection between the two,

because none existed.

Lindh, 161 Wis.2d at 350-51. Because the jury’s assessment of Roberts’

testimony could not reasonably have been altered by the excluded evidence, the

trial court did not violate petitioner’s 6th Amendment rights.

NOW THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY

ORDERED THAT:

1. Lindh’s petition is denied and the case dismissed.

B-10

168 Wis.

468 NORTH WESTERN REPORTER, 2d SERIES

161 Wis.2d 324

STATE of Wisconsin,

Plaintiff—-Respondent-Petitioner,

Vv.

Aaron LINDH, Defendant-Appellant.

No. 89-0896-CR.

Supreme Court of Wisconsin.

Argued Jan. 25, 1991.

Decided April 17, 1991.

Defendant was convicted before the

Circuit Court, Dane County, Robert R. Pe

kowsky, J., of two counts of first-degree

murder, one count of attempted first-de

gree murder, committing acts alleged by

using a dangerous weapon, and one count

of carrying a firearm in a public building,

and he appealed. The Court of Appeals,

156 Wis.2d 768, 457 N.W.2d 564, reversed

and remanded. State petitioned for review.

The Supreme Court, Steinmetz, J., held

that: (1) trial court did not abuse its discre-

tion in granting State's in limine motion to

restrict impeachment of State's psychiatric

witness during mental capacity phase of

bifurcated trial, and (2) court did not abuse

its discretion during mental capacity phase

of trial in refusing to suppress statements

taken from defendant by psychiatric wit-

ness within hours of defendant's arrest.

Reversed.

Shirley S. Abrahamson, J. dissented

with opinion.

1. Criminal '»« @1170'A(5)

Appellate court should reverse a trial

court's determination to limit or prohibit a

certain area of cross-examination offered

to show bias only if trial court's determina-

tion represents a prejudicial abuse of dis-

creuon.

2. Criminal Law © 625.15

Trial court did not abuse its discretion

during mental capacity phase of bifurcated

murder trial in granting State's motion in

limine precluding cross-examination of

State's psychiatric witness concerning alle-

gations of sexual misconduct by witness

C-1

STATE v. LINDH

Cite as 468 N.W2d 168 (Wie. 1991)

with female patients; as allegations were

not being investigated by prosecutor in

murder case, but by special prosecutor, wit-

ness had no reason to favor prosecutor by

testifying or giving report favorable to

him; moreover, even if evidence concerning

allegations could be considered marginally

relevant to bias, motive or interest or to

character or credibility of witsess as an

expert, risk of unfair prejudice from admis-

sion of the evidence far outweighed its

probative value.

3. Criminal Law €=393(1), 396(1)

Right against self-incrimination does

not apply to prohibit admission of testimo-

ny of a State psychiatric expert in circum-

stances where defendant already has inter-

posed an insanity defense and has present-

ed expert testimony in support of that de

fense. U.S.C.A. Const.Amend. 5: W.S.A.

Const. Art 1, § 8.

4. Criminal Law <393(1)

Privilege against self-incrimination

does not require exclusion of results of a

psychiatric interview with defendant from

mental capacity phase of a bifurcated trial!

on ground that psychiatrist did not comply

with dictates of Miranda; psychiatric in-

terview designed to ascertain a defendant's

mental responsibility is not accusatory in

nature, and Miranda warnings, which are

aimed against involuntary self-incrimina-

Uon, are not a prerequisite to such an inter-

view or to admission of results of interview

in mental capacity phase. U.S.C.A. Const

Amend. 5; W.S.A. Const. Art. 1§8

5. Criminal Law €393(1)

Assuming that Miranda was applica-

ble to interview of defendant by State psy-

chiatrist within hours of defendant's arrest,

Statements taken by psychiatrist were ad-

missible despite defendant's claim that psy-

chiatnst failed to scrupulously honor defen-

dant’s purported assertion of his right to

remain silent which occurred when defen-

dant indicated he did not want to discuss

details of Shootungs, defendant's statement

that he did not want to discuss details of

sheoungs, Standing alone, was not an invo-

“atlon of the right to silence, where defen-

'. Siete , Lindh, 156 Wis.2d 768, 457 N.W 2d

chiatrist to end the interview or go away:

moreover, even if defendant did invoke his

right to remain silent, psychiatrist scrupu-

lously honored that right. U.S.C.A. Const.

Amend. 5.

Sally L. Wellman, Asst. Atty. Gen., ar-

gued, Donald J. Hanaway, Atty. Gen., on

the briefs, for plaintiff-respondent-petition-

er.

Kenneth P. Casey, Chief, Appellate Div.,

argued, Keith A. Findley, Asst. State Pub-

lic Defender, on a brief, for defendant-ap-

pellant.

STEINMETZ, Justice.

The principal issue in this case is wheth-

er the trial court abused its discretion by

ruling in favor of the state's in limine

motion to restrict defense impeachment of

one of the state’s psychiatric witnesses

during the mental capacity phase of the

bifurcated trial.

A second issue is whether the trial court

abused its discretion during the mental ca-

pacity phase of the trial by refusing to

suppress the use of statements taken from

the defendant by a psychiatric witness

within hours of the defendant's arrest.

With respect to the first issue, the court

of appeals reversed the circuit court for

Dane county, Judge Robert R. Pekowsky,

holding that the trial court's order restrict-

ing defense impeachment of the state’s

psychiatric witness was an abuse of discre-

tion and remanding the case for a new

mental capacity phase of the trial. With

respect to the second issue, the court of

appeals affirmed the trial court's decision

allowing the introduction of the defen-

dant’s statements.'

We reverse the court of appeals and hold

that the trial court did not abuse its discre-

tion in granting the state’s motion in ii-

mine. We affirm that portion of the court

of appeals decision which held that the trial

court did not err by refusing to suppress

564 (Ct App. 1990)

Wis. 169

dant did not say he did not want to answer

170 Wis.

the use of the statements challenged by the

defense. :

of the crimes and so pleaded not guilty for

that reason. The jury found that Lindh did

Building in Madison, Wisconsin, to meet

with officers of the Madison Police Depart-

ment? After talking with certain police

officers, Lindh apparently left the building

and went to his automobile parked nearby,

in which he had a modified .22-<aliber rifle.

Lindh then re-entered the building and pro-

ceeded to walk inw an office of the Dane

County Sheriffs Department, hiding the

2. Secon 971.15, Suts.. Se

Mental Responsibilits of .

person is neu: responsible for criminal conduct

if at the ume of such concuct as 2 result of

meniz! disease or defect he lacked subsiantial

Capacits ether tw appreciace the wrongfulness

of his conduct or conform his conduct to the

reauirements of law. ;

(2) As used in this chapte’, the terms ‘men-

ta! disease or defect’ co no: include an abnor-

malty manifested onix b. repeatec criminal

or otherwise anusocia! conduc!

(3) Menta! disease or Ocieci exciuding re-

spensitilts rs an aff:rmatve cefense which

the defender! must estadlish t a reasonable

468 NORTH WESTERN REPORTER, 24 SERIES

}

i

i

;

Hittite

E F

tel

E 5

rea

ey

:

vg

Lindh of his rights under Miranda v. Ari-

L.Ed2d 694 (1966)‘, which rights he

4. See State v. Hernandez 61 Wis.2¢ 253, 257.

212 N.W.2d 118 (1973), in which these rights are

set forth and discussed.

STATE v.

Lindh that same evening. Dr. Roberts

agreed to do so and arrived at Lindh’s

bedside at 9:33 p.m. He explained to Lindh

that Assistant District Attorney Burr had

sent him and indicated that the interview

was taking place “at the request of the

District Attorney's office.” Before begin-

ning his interview of Lindh. Dr. Roberts

essentially reiterated to him all of his Mi-

randa rights, except that he did not inform

him that before any interview an attorney

would be provided to him at county ex-

pense if he wanted and could not afford

the purpose of his interview related to as-

sessing Lindh’s mental state at the time of

the shootings. Lindh did nothing to sug-

gest that he was not disposed to such an

interview.

Dr. Roberts began to question Lindh,

asking him if he could recall what hap

pened earlier that day in the City-County

Building. Lindh said he had a limited

amount of recall but described shooting

two men and a woman. When asked why

he shot them, Lindh responded that he did

not know. When asked if he cared to dis-

cuss the details of the shootings, he an-

swered in the negative. At that point, Dr.

Roberts suggested to Lindh that he might

not want to talk with him at all, since Lindh

did not have an attorney present. “Well,”

Dr. Roberts said to Lindh, “I'll wait a few

minutes and come back and talk with you

again.” Dr. Roberts then left the defen.

dant alone because, in his words:

I wanted to be very sure that he under-

Stood, really, the purpose of my being

there, and that he understood his nghts

im relation to anything that he might

Share with me, because, in general, I'd

much prefer that he have an attorney

Prior to that time, and that his attorney

be aware that he was talking with me.

Twelve minutes later, Dr. Roberts re-

turned to Lindh’s bedside. Before talking

with Lindh, Dr. Roberts again generally

C-4

LINDH Wis. 17)

informed him of his rights concerning the

interview. Lindh responded that he under-

stood he did not have to talk with Dr.

Roberts and understood why Dr. Roberts

an attorney before he talked. Lindh indi-

cated, however, that he would talk with Dr.

Roberts.

persona] and family background. Lindt,

again indicated that he shot three human

beings, none of whom he knew personally,

was not suicidal, that he did not have sig-

nificant depression, that he was not experi-

encing inati hearing voices or

seeing visions, and that he had not been

experiencing any significant eating or

sleeping problems. Dr. Roberts later testi-

fied to his opinion that Lindh, based upon

his ability to converse, absence of slurred

speech, and responsive answers to specific

questions the nature of which is indicated

above, was able to understand what was

taking place and being said at the inter-

view. Dr. Roberts stopped the interview at

about 10:25 p.m., when Lindh indicated he

was experiencing some pain.

On February 26, 1988, Lindh was ar-

raigned and entered his pleas of not guilty

and not guilty by reason of mental disease.

At the request of the district attorney, the

court appointed Dr. Roberts and Dr. Fred-

erick Fosdal, another forensic psychiatrist,

to examine the defendant on behalf of the

State.

On March 8, 1988, Dr. Roberts became

aware of allegations of professioral mis-

pen in Dane county, where the allegations

were made and therefore would be conduct-

ed by the Dane county district attorney's

office.

In May 1988, Dr. Roberts learned that

the Medical Examining Board was also in-

vestigating allegations of sexua) miscon-

duct by him with three female patients

after the examining board made a request

of him w provide it with records.

Dr. Koberts interviewed Lindh again on

June 22, 1988, at the Dane county jail. The

transfer the matter two a special Prosecutor.

After the meeting, Harlowe immediately

undertook to transfer the mater to the

office of Milwaukee County District Attor-

ney E. Michael McCann so as w establish

that office as special prosecutor in the mat-

ler.

The Dane county district attorney's of-

fice sought this transfer in light of the fact

that it had worked closely with Dr. Roberts

on the prosecution of a number of past and

pending cases. The district attorney's of-

fice considered that that relationship could

5. Specifically, sec. 940.22, Stats. provides crim.

na! penalties for the sexual expliciation of »

On August 17, 1988, Dr. Roberts sub-

mitted a report concluding that Lindh was

not suffering from a mental disease or

defect at the time of the shootings. On

August 22, 1988, he interviewed Lindh for

the last time.

C-S +

STATE v. LINDH Wis. 173

Cite as 468 N.W2d 168 (Wis. 1991)

nal charges; when the allegations were

referred to the Dane county district attor-

ney’s office; when a special prosecutor was

appointed, when Dr. Roberts became aware

of this; and whether the Dane county dis-

trict attorney's office had made any deci-

sion as to whether charges should be filed.

The state promptly responded to the de-

mand, denying that any of the material

requested was exculpatory but fully an-

swering each and every question set forth

by the defense.* The state also filed, on

September 12, 1988, a motion in limine

requesting that the trial court prohibit any

cross-examination of Dr. Roberts concern-

ing the allegations of misconduct pending

against him or concerning any ramification

of those pending allegations, including but

not limited to the status of Dr. Roberts’

hospital privilege at the University of Wis-

consin Hospital. The motion asserted that

any such inquiry by the defense would be

“totally irrelevant and immaterial to the

issues” before the court.

A hearing on the state’s motion was held

on September 13, 1988. At that hearing,

the defense acknowledged that the state

had fully complied with its discovery de

mand. It also indicated it was alleging no

wrongdoing or bad faith on the part of the

prosecution. The parties argued the merits

of the state’s motion, the defense arguing

that the circumstances raised serious ques-

tions relating to the bias, motive and inter-

est of Dr. Roberts. The defense also ar-

gued more generally that Lindh should be

permitted to explore the credibility of Dr.

Roberts as an expert witness. In this con-

nection, the defense, although it had no

support in the record upon which to base

its position, asserted that University of

Wisconsin Hospital had temporarily sus-

pended Dr. Roberts’ privilege to treat pa-

Uents at that institution after conducting

its own investigation. Lindh argued that

he should be permitted, during his own

questioning on Dr. Roberts’ qualifications,

w question Dr. Roberts concerning the alle-

gations against him and his purported sus-

pension so that the prosecution would not

6 The information contained in the state's an-

swers, entirely undisputed by the defense. is

be able to present Dr. Roberts as “pure as

the driven snow.”

The state argued that the allegations

contained in the board’s complaint were not

Concerning the defense’s more generally

stated line of inquiry as to Dr. Roberts’

character or credibility as an expert wit-

ness, the state responded that an expert

witness should be treated like any other

witness and that there was no basis to

question Dr. Roberts about the allegations.

The state argued that cross-examination

pertaining to the allegations of sexual mis-

conduct and purported hospital suspension

would serve no purpose insofar as those

matters did not reflect on Dr. Roberts’

qualifications as an expert witness. Such

cross-examination, the prosecution said,

would serve only to “trash” Dr. Roberts, to

put him on trial and draw the issue away

from the mental responsibility of Lindh.

Following extensive arguments by the

parties, the trial court, after having “given

a lot of thought to this,” found the prof-

fered evidence to be “irrelevant and imma-

incorporated within this factual portion of this

opimon.

ee

174 Wis. 468 NORTH WESTERN

terial.” Rejecting the defense’s theories of

prosecutor, there was no possibility of bias,

motive or interest on the part of Dr. Rob-

erts. “I do not find anything in this record

risk of unfair prejudice so as to determine

its admissibility pursuant to sec. 904.03,

Stats. In conducting its balancing test, the

trial court found that the risk of unfair

prejudice to the state would outweigh any

relevance. The court expressly noted that

the allegations against Dr. Roberts were

nothing more than allegations and said that

there was the risk that the jury would

think that “if there's smoke, there's fire.”

Thus, the court held that cross-examination

pertaining to the allegations against Dr.

Roberts and his purported hospita! suspen-

sion was not admissible. The court there-

fore granted the motior in limine

At the same time, the court gave defense

counsel the right to voir dire Dr. Roberts

outside the presence of the jury, end « voir

dire hearing wok place before Dr. Roberts

testified at phase I] of the trial. The hear-

ing essentially amounted to @ reiteration by

Dr. Roberts of much of the information

contained in his response to Lindh’s dis-

covery demand. In addition, Dr. Roberts

stated at the hearing that when he wes

first called into the case by Assistant Dis-

orders long before January 15, 1988. He

characterized these long-term disorders as

“mixed personality disorder.”

The principal expert witness for the state

was Dr. Roberts. At the outset of his

testimony, Dr. Roberts indicated that he

was: a faculty member at the University of

psychiatrist of the year;” and, a grandfa-

ther. Dr. Roberts proceeded to give his

opinion that the defendant did not suffer a

mental iliness at the time of the crimes,

that a personality disorder is not a mental

disease, and that a conduct disorder is not

« mental disease. He testified to his opin-

jon that the defendant wa8 not suffering a

brief reactive psychosis at the time of the

offenses. He gave his opinion that the

defendant knew his conduct was wrong

and that he could conform his conduct to

the requirements of the law.

STATE v. LINDH

Cle as 468 N.W.2d 168 (Wis. 1991)

The state also called Dr. Fosdal who

stated that he diagnosed Lindh as suffer-

ing a mixed personality disorder. He testi-

fied, however, that such a disorder does not

prevent one from appreciating the wrong-

fulness of his conduct or from conforming

his conduct to the requirements of the law.

He testified to his opinion that the defen-

dant did not suffer a brief reactive psycho

sis at the time of the crimes, did not have a

mental disease, and suffered no impair-

ment of his ability to conform his conduct

to the requirements of the law.

With respect to the first issue, Lindh

contends that the evidence he wished to

show on cross-examination of Dr. Roberts

was wrongfully excluded to the extent it

might have shown bias on the part of Dr.

Roberts, who, facing the possibility of a

criminal! investigation and criminal charges,

allegedly might have wanted to curry favor

with the prosecutor by reporting a diagno

sis of Lindh’s mental state that would fa-

vor the prosecution against Lindh. Lindh

also asserts more generally that the evi-

dence was relevant to Dr. Roberts’ charac-

ter and credibility.

The confrontation clause of the Sixth

Amendment of the United States constitu-

tion guarantees the right of an accused in a

criminal! prosecution “to be confronted with

the witnesses against him.” By virtue of

the fourteenth amendment, this right is

applicable to the citizens of this state. Ar-

ticle 1, sec. 7 of the Wisconsin constitution

essentially provides the same right, indicat-

ing that an accused has a right to meet his

witnesses “face to face.” ‘“‘“The main

and essential purpose of confrontation is to

secure for the opponent the opportunity

7. Section 904.01, Stats., provides:

‘Relevant evidence’ means evidence having

any tendency to make the existence of any

fact that is of consequence to the determina-

tion of the action more probable or less prob-

able than it would be without the evidence.

8. Section 904.02, Stats., provides:

All relevant evidence is admissible, except

as otherwise provided by the constitutions of

the United States and the state of Wisconsin,

by statute, by these rules, or by other rules

adopted by the supreme court. Evidence

which is not relevant is not admissible.

of cross-examination.”'”

Van Arsdali, 475 US. 673,

1431, 1435, 89 L.Ed.2d 674 (

Davis v. Alaska, 415 US. 3

S.Ct. 1105, 1110, 39 L.Ed.2d 3

phasis in original). “ {The «

witness’ motivation in testify:

and important function of the

ally protected right of cross-ex

Id. at 678-79, 106 S.Ct at 14

Nevertheless:

[T)rial judges retain wide lat

as the Confrontation Clause

to impose reasonable lim

cross-examination based

about, among other things,

prejudice, confusion of th

witness’ safety, or interro

repetitive or only marginz

Id. at 679, 106 S.Ct. at 1435.

tation clause “ ‘guarantees a

for effective cross-examina’

examination that is effecti

way, and to whatever exten

might wish.”” Jd. quotir

Fensterer, 474 US. 15, 20

294, 88 L.Ed.2d 15 (1985) (E

inal).

Wisconsin evidence law

these fundamental precept

relevant, as defined by se

it is admissible, unless

would be prohibited by ar

constitutions of the Units

consin. Section 904.02,

admissible, evidence may

probative value is substa)

by other factors, includi

prejudice. Section 904.

08." pertains specifica!

character and conduct «

9. Section 904.03, Stats., 5

Although relevant, ev

ed if its probative val:

weighed by the dang«

confusion of the iss

jury, or by consider:

waste of time, or m

cumulative evidence.

10. Section 906.08, Stat

Evidence of chara

ness. (1) OPINION

DENCE OF CHARAC

176 Wis. 468 NORTH WESTERN REPORTER, 24 SERIES

shed ‘eht on the subject of inquiry.”

ayy 93 Wis.2d 682, 688, 28

N.W.2d 774 (1980). In Rogers, we also said

ve of the direct testimony.

Id. at 689, 287 N.W.2d 774. The scope of

cross-examination is not limited to the

trial court discretion. State v. Pharr, 115

Wis.2d 334, 342, 340 N.W.2d 498 (1983);

Rogers, 93 Wis.2d at 689, 287 N.W.2d 774.

This discretion of the trial court is broad.

State v. Oberlander, 149 Wis.2d 132, 140,

438 N.W.2d 580 (1929). The appellate

court should reverse a trial court's determi-

nation to limit or prohibit a certain area of

cross-examination offered to show bias

only if the trial court's determination repre-

sents a prejudicial abuse of discretion.

ed in s. 972.11(2). the credibility of a witness

may be attacked or supporied by evidence in

to these limitations: a) the evidence may refer

only to character for truthfulness or untruth-

fulness, and b), except with respect to an

accused who testifies in his or her own behalf,

evidence of truthful character is admissible

only after the character of the witness for

truthfulness has been attacked by opimon or

ion evidence or otherwise.

(2) SPECIFIC INSTANCES OF CONDUCT.

Specific instances of the conduct of a witness.

for the purpose of attacking or supporting the

witness's credibility, other than conviction

c-9

Williamson, 84 Wis.2d at 384-85, 267

N.W 2d 337); State v. Whiting, 136 Wis.2d

400, 422, 402 N.W.2d 723 (Ct-App.1987). In

of appeals erred in substituting its discre

inquire “whether, during the period in

question, he was investi ted with respect

to possible criminal conduct which, upon

conviction, would have serious professional

sion ignores the fact that the trial court

of truthfulness or untruthfulness and not re-

mote in time, be inquired into on cross-<examr

nation of the witness or on cross-examination

of a witness who testifies to his or her charac-

ter for truthfulness or

only to credibility.

STATE v.

——

LINDH Wis. 177

Cite a0 468 N.W2d 168 (Wie 1991)

had a reasonable basis to conclude that the

proffered evidence simply was not in any

way relevant

From the time Dr. Roberts first inter-

viewed Lindh in the hospital on January 15,

1988, through the times that he interviewed

him in June 1988 end August 1988 and up

through and including September 1988,

there is no evidence in the record that a

Roberts. At most, it is known that the

matter of the complaints by Dr. Roberts’

patients against him was referred to the

Dane county district attorney's office in

June and that the matter was immediately

transferred to the Milwaukee county dis-

trict attorney's office for any investigation

it would choose to pursue and any prosecu-

tion it would choose to conduct. There is

no evidence that after that time and as of

the time of trial, the Milwaukee county

district attorney's office ever began any

criminal investigation."

Clearly, up until July 8, 1988, there was

no reasonable possibility for bias, motive or

interest on the part o

This text is long and has been trimmed here. Open the source document for the complete record.