# Appendix — Lindh v. Murphy

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0085%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 320

## Text

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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

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--- 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

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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

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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,

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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

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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

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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
’

C-15

STATE v. LINDH | : Wis. 183

The trial court clearly did not abuse its
discretion in finding that any relevance of
the proffered evidence was outweighed by
other factors. Pointing out that the allega-
tions against Dr. Roberts were nothing

more than allegations and there was a risk |

that the jury would think that “if there’s
smoke, there’s fire,” the trial court accu-
rately focused on what would have amount
ed to an unfairly prejudicial admission.

Moreover, in reviewing the trial court's
ruling, the appellate court should conclude
that the trial court relied on the considera-
tions expressed by the prosecutor as
grounds for the court's ruling, where the
court obviously acquiesced in the prosecu-
tor’s explanation, but did not expressly ar-
ticulate all of its reasoning itself. See Ha-
genkord v. State, 100 Wis.2d 452, 464, 302
N.W.2d 421 (1981). In this regard, al

gations of sexual misconduct with patients
would serve no purpose except to “trash”
Dr. Roberts, that it would distract the jury
from the real issue, the mental responsibili-
ty of Lindh, and that it would cause the
jury to specula : about an unrelated issue.
These are traditional grounds of prejudice
under sec. 904.03, Stats.

We hold that the trial court did not abuse
its discretion or otherwise err insofar as it
concluded that any relevance of the prof-
fered evidence was outweighed by other
considerations, including the msk of unfair
prejudice, such that it was not improper to
exclude the evidence.

We now turn to the second issue, in
which Lindh argues that the trial court
erred in refusing to suppress the use of
Statements taken by Dr. Roberts within
hours of Lindh’s arrest. Lindh argues that
the nght against self-incrimination applies
to phase II of a trial and that his rights
under Miranda were not honored.

The Fifth Amendment to the United
States Constitution and Article I, sec. 8 of
the Wisconsin Constitution guarantee a de-
fendant a right against self-incrimination.

[3] We note as a general matter that

(1987); Powell v. Texas, 492 U.S. 680, 109
S.Ct. 3146, 106 L.Ed.2d 551 (1989); United
States v. Byers, 740 F.2d 1104, 1110-11
(D.C.Cir.1984); Riles v. MeCotter, 799 F.2d
947, 953 (Sth Cir.1986); Schneider v. Ly-
naugh, 835 F.2d 570, 575-76 (5th Cir.1988),
Granviel v. Lynaugh, 881 F.2d 185, 190
(5th Cir.1989); State v. Hope, 96 N.C.App.
498, 386 S.E.2d 224 (1989); State v. Huff,
325 N.C. 1, 381 S.E.2d 635 (1989).

Lindh relies upon United States v.
Hinckley, 672 F.2d 115 (D.C.Cir.1982) and
Cape v. Francis, 741 F.2d 1287 (Lith Cir.
1984) to support his contention that the
right against self-incriminauion apphes to
phase I] of a trial. Both cases are clearly
distinguishable. In Hinckley, F.B.I.
agents continued to interrogate the defen-
dant after he requested an attorney and
after the defendant said he wanted the
interview stopped. The government ar-
gued it should at least be allowed to use
the defendant's statements and psychiatric
opinion evidence based on the police reports
of the interview to rebut the defendant's
insanity defense. The court held evidence
gleaned from the police officer's egregious
violatior. of the defendant's Miranda rights

C-16

Lindh also reli aly, pen

Arizona v. Mauro, 481 US. 520, 107 S.Ct

1931, 95 L.Ed.2d 458 (1987), which involved

a police interview and not a psychiatric

interview. The question of whether the
to

fifth amendment applied the insanity
issue was not considered. Finally, Lindh
relies on 7

MENTE
404 RS
bal
Hit

penalty. At the competency hearing, the
psychiatrist had not informed the defen-
dent that he had the right to remain silent
and he had given the defendant no indica-
tion that the court-ordered examination
would be used to gather information neces-
sery w decide whether he would receive
the death penalty. The court held that
under “these distinct circumstances,” the
defendant's fifth amendment privilege
against self-incrimination was violated. /d.
at 466, 101 S.Ct at 1875.

Ev its own terms, Estelle is limited to its
fects. Im fact, the Supreme Court in Es-
telle clearly «appears to have exempted
from its holding a situation such as in the
instant case, indicating that a defendant
who asserts the insanity defense and intro
duces supporting psychiatric evidence can-
no” also preclude the state from conducting
ar, examination and introducing the product
of that examination. Estelle, 451 US. at
46*. 101 S.C at 1875.

ae

quoting
Connecticut, 367 U.S. 568, 581-82, 81 S.Ct
1860, 1867, 6 L.Ed.2d 1037 (1961).

We focus on the nature and purpose of
the examination and not on its timing. The

phase II of trial, is not accusatory in na-
ture. It looks at the past conduct of which

the interview at phase Il. Cf State v.
Knapp, 111 Wis.2d 380, 388, 330 N.W.2d
242 (Ct App.1983); State v. Heffran, 129
Wis.2d 156, 165-66, 384 N.W.2d 351 (1986).
Complete information is essentia] on the
insanity defense, and the best information
comes from an expert examination of the
defendant himself. To the extent official
misconduct needs to be deterred, sufficient
deterrence is adequately provided by ex-
The great importance and reliability of the
defendant’s own statements on this issue
should not be undereut by any incremental!
benefits to be gained by suppression. Reli-
ability of the fact-finding process would be
decreased by application of the constitu-

c-17

STATE v. LINDH Wis. 185
Cite as 468 N.W2d 168 (Wis. 1991)

tional privilege. Cf Allen v. Illinois, 478
US. 364, 374-75, 106 S.Ct. 2988, 2994-95,
92 L.Ed.2d 296 (1986). Admission of the
results of a state psychiatric examination
of a defendant who raises the insanity de
fense does not tarnish or diminish the “ no

Comm 'n., 378 U.S. 52, 55, 84 S.Ct
1594, 1596, 12 LEd.2d 678 (1964).

We thus hold that the constitutional priv-
ilege against self-incrimination does not re-
quire the exclusion of results of a psychiat-
ric interview with the defendant from
phase II of a trial on the grounds that the

psychiatrist did not comply with the dic-
tates of Miranda

[5] Assuming, arguendo, that Miranda
is applicable in the case at bar, we will
consider Lindh’s argument that Dr. Rob-
erts failed to scrupulously honor his pur-
ported assertion of his right to remain si-
lent when he indicated he did not want to
discuss the details of the shootings.

A defendant's exercise of his right to
silence must be “scrupulously honored,”
State v. Hartwig, 123 Wis.2d 278, 284, 366
N_W.2d 866 (1985), citing Michigan v. Mos-
ley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46
L.Ed.2d 313 (1975). The critical safeguard
of the right to silence is the right to termi-
nate questioning by invocation of the nght
to silence. Jd

These principles notwithstanding, it is
clear that Lindh never exercised or invoked
his might to silence during his imterview
with Dr. Roberts on the day of the shoot-
ing. Lindh did not assert that he did not
want to talk with Dr. Roberts. Never did
he say that he did not want to answer
additional questions. He did not ask Dr.
Roberts to end the interview or to go away.
He said only that he did not want to dis-
cuss the details of the shootings. That,
Standing alone, is not, an invocation of the

1. Cross-examination directed toward revealing
biases, prejudices, or ulterior motives of a wit-
ness—that 1s, an interest of the witness that may
rclate directly to issues or personales in the

right two silence. See eg., State v. Koput.
134 Wis.2d 195, 202, 396,N.W.2d 773 (Cc
App.1926), rev'd on other grounds, 142
Wis.2d 370, 41 N.W.2d 804 (1988), People
v. Galimanis, 765 P.2d 644 (Colo.Ct.App.
1988), cert. granted, 783 P.2d 83% (Colo.
1989); People v. Brockington, 126 A.D2d
655, 511 N.YS.2d &4, 8 (1987).

We conclude that, even if Lindh arguably
did invoke his right to remain silent, Dr.

Turner, 136 Wis.2d 333, 357-60, 401
N.W.2d 827 (1987). Here, such tacts
were not used.

Thus, we hold that the trial court did not
abuse its discretion or otherwise err either
in excluding the evidence proffered by
Lindh on cross-examination or in admitung
the testimony of Dr. Roberts pertaining to
his interview of Lindh on the evening of
the shootings. Because of our holdings in
of harmless error with respect to either
issue.

The decision of the court of appeals is
reversed.

BABLITCH, J., withdrew from

SHIRLEY S. ABRAHAMSON, Justice
(dissenting).

I agree with the unanimous decision of
the court of appeals that the circuit court
committed prejudicial error in completely
barring the defendant from cross-exam-
ining the psychiatrist-witness about a pend-
in investigation into the witness's alleged
criminal misconduct to show bias.'

The majority opinion holds that the test
to determine whether defense counsel may
cross-examine a state’s witness about al
leged criminal misconduct to show the wit-
ness’s bias is whether a jury could find a

the test of relevancy in crossexamination is
whether the evidence will be useful to the jury
in appraising the credibility of the witness.
Rogers v. State, 93 Wis.2d 682, 689, 287 N.W2d

case at hand—1s a parucuiar atiack on the cred: 774 (1980).
bility of the witness. The proper standard for

C-18

186 Wis. 468 NORTH WESTERN REPORTER, 2d SERIES |

“logical connection” between the criminal!
investigation of the witness and the district
attorney's office on whose behalf the wit-
ness was testifying. The majority then
concludes that the circuit court did not err
in excluding the evidence, because “the re-
lationship between the Dane county district
attorney's office and [the witness) which
would be necessary to suggest bias, inter-
est or motive simply did not exist” Major-
ity op. at 177."

This test does not conform to the test set
forth in earlier cases. This court and the
United States Supreme Court have conclud-
ed that “a defendant, as an ingredient of
meaningful cross-examination, must have
the right to explore the subjective motives
for the witness’ testimony.” * Evidence is
relevant to the issue of bias in this case if it
tends to prove that the witness believed
that he might be aided or harmed by test-
fying in a particular way. The focus of the
circuit court's inquiry should be on the
witness's state of mind.

Because I believe the majority opinion
uses an incorrect standard and reaches an
incorrect decision, I dissent.

L.

1 believe that the circuit court in this
case had to apply the following analysis to
determine the relevance of evidence prof-
fered on cross-examination to show a wit-
ness's bias: Does the proposed cross-exam-

2. The majority asserts that there was no evi
dence of any investigavion of Dr. Roberts during
the pendency of the defendant's case. Majority
op. at 178. 1 believe that for the purposes of
this appeal, the fact that allegations of profes.
sional misconduci by Dr. Roberts had been re-
ferred to a special prosecutor 1s sufficient evr.
dence that some kind of invesugstion would
follow

3. Sate v. Lenarchick, 74 Wis.2d 425, 448, 247
N.W.2d 80 (1976) (Emphasis added).
According to the Unned States Supreme
Court, evidence relating to bias on Cruss-cxam
nation is relevant if « jury might reasonably
find that the evidence “furnished the [state’s)
witness @ motive for favoring the prosecution in
his testimony.” Delawere v. Van Arsdall, 475
US. 673, 679, 106 S.Ci. 143), 1435, 89 L-Ed.2d
674 (1986).
The circuit court must recognize that @ jury
need noi accept the wiiness + denial about bias

ination support a reasonable inference that
the witness believed he might benefit if he
testified in favor of the state's position, or
he might be disadvantaged if he testified
against ‘the state’s position’ :

The party asserting bias need not prove
the state or would in fact benefit from or
be harmed by giving certain testimony. It
is enough if the witness believes he or she
has a self-interest in the testimony.‘

Even if the witness's beliefs were “ab
surd,” the adverse party has a right and a
duty to explore the witness's motives. We
explained this obligation in State v. Lenar-
chick, 74 Wis.2d 425, 447, 247 N.W.2d 80
(1976), as follows:

4. In Davis v. Alaska, 415 US. 308, 94 S.Ci. 1195.
39 L.Ed.2d 347 (1974), for example, the Su

See also Siete v. Balistreri, 106 Wis.2d 741.
753, 317 N.W.2d 493 (1982).

c-19

STATE v. LINDH Wis. 187
Cite as 468 N.W2d 168 (Wis. 1991)

Applying the test this court and the Unit-
ed States Supreme Court have used to de
termine the relevance of evidence proffered
to show bias, I conclude that the circuit
court erred in barring cross-examination on
the issue of bias in this case.

In reviewing the circuit court's decision
about the scope of cross-examination to
show bias, an appellate court must consider
(1) that an adverse party is allowed great
latitude regarding the subject and scope of
the inquiry to show bias; (2) that the deter-
mination of the relevancy of the line of
questioning proffered to establish bias is
within the discretion of the circuit court; *
and (3) that it is error for a circuit court to
bar an accused from presenting all facts
from which a jury might reasonably infer
bias of a prosecution witness.‘

The circuit court in this case determined
that the evidence proffered was “totally
irrelevant and immaterial” to the issues of
motive, interest or bias.’ The state argues
that on a sliding scale of possible bias, the
defendant's theory of bias in this case is
too weak to allow the defendant to cross-
examine on this subject.

Both the majority opinion and the circuit
court apparently base their determination
of lack of relevance on two factors and
reason as follows:

l. Dr. Roberts learned two facts simul-
taneously. He learned that the state might
investigate allegations of criminal conduct
his patients made against him. He also

5S. In Hartung v. Hartung 102 Wis.2d 58, 66, 306
N.W.2d 16 (1981), the court stated the method
for reviewing a circuit court's discretionary de
termination

A discretionary determination, to be sus
tained. must demonstuably be made and
based upon the facts appearing in the record
and in reliance on the appropriate and appl:
cable law Additionally. and most imponant
ly, a discretionary determination must be the
product of a rational mental! process by which
the facts of record and law relied upon are
Stated and are considered together four the
Purpose of achieving a reasoned and reason
able determination. Ii is recognized that a
trial court in an exercise of its discretion may
reasonably reach a conclusion which anniher
judge or another court may not reach, but it
must be a decision which a reasonable judge
or coun could arrive at by the consideration

learned that a special prosecuwr uncon-
nected with the Dane County district attor-
ney's office would te in charge of the
matter. Knowing that the Dane County
district attorney was prosecuting the de
fendant in this case and another district
attorney's office was in charge of a poss?
ble investigation of him for criminal

charges, Dr. Roberts could not possibly

think that his testimony benefitting the
Dane County district atwrney’s case
against the defendant could influence the
outcome of his own potential criminal! case.

2. Criminal charges were not filed
against Dr. Roberts during the pendency of
the defendant's case. Thus during the
pendency of the defendant's case, because
any prosecution of Dr. Roberts was “mere
ly a possibility, there was no reasonable
basis to believe that Dr. Roberts would
color his report...." or testimony. Majori-
ty op. at 178. The majority intimates that
no bias can be shown unless criminal
charges are filed or there is proof of actua!
negotiation between the witness and the
state regarding specific pending charges.

This reasoning is, | believe, flawed. The
majority's reliance upon the special prose
cutor’s being in the Milwaukee County dis-
trict attorney's office and not in the Dane
County district attorney's office lends little
support for the majority’s conclusion.
Even though the circuit court or the majori-
ty believes that the presence of two auton-
omous district attorney offices guarantees
that the one would not influence the other,

of the relevant law, the facts, and a process of
logical reasoning. The record here demon-
strates beyond doubt that the trial court in
this case failed to aniculate and uve the dis
cretionary standards which the legislature has
set as guidelines for determining an award of
maintenance and failed w set forth the facts
upon which it relied.

6 State v. Lenarchick, 74 Wis.2d 425, 446-448.
247 N.W.2d 80 (1976)

7. The circuit court stated: “And I think it's fair
to say that, no matter what (Dr. Roherts does)
for the Dane County district attorney's office,
[Dr Roberts} would nut be able tu influence any
result, as # result of [the special prosecutor's)
investigation or any judge that might ultimatels
hear it, should there be any charges filed”

LETFEGT,
i Hl
lal i
aie
tities!

it
+
,
f

the entire period to shade his testimony in
favor of the state. A jury could infer that
Dr. Roberts believed, however unwarrant-
ed the belicf, that if he testified fevorably
for the state in the defendant's case, the

Neither case law nor logic supports the
majority's view that formal charges must
be filed before an investigation into crimi-
na! behavior is relevant to the issue of bias.
The cases stand for the proposition that
“when « witness is subject to the coercive
power of the state and can also be the

& See Lmwed States v. Gerrett, $42 F.2d 23 (6th
Cwr.1974), holding n was abuse of discrenion for
the trial coun to exclude evidence thai the
government's witness in @ drug case had been
suspended from the police force because he was
suspected for using hard drugs himself and
refused to submit to @ urine test. The coun
appeals concluded that a jury may have inf
that the wiiness looked upon a successful prose.
cution as « means of having his suspension
lifted.

See else Stove v. Chesnut, 62) P.2d 1228, 1233
(Liah 1986,. disapproved on other grounds, Siate

i

object of its leniency” an adverse party
must have the opportunity to explore the
subjective motives for the witness's testi-
mony. State v. Lenarchick, 74 Wis.2d 425,
447-448, 247 N.W.2d 80 (1976).*

That charges had not been filed against
Dr. Roberts strengthens rather than weak-
ens the defendant's theory of bias.’ Dr.
Roberts rendered his opinion on the defen-
dant's mental capacity when he did not
know what the state would do to him. The
jury could reasonably infer that as long as
the special prosecutor deferred action on
Dr. Roberts's case, Dr. Roberts could
hope—even though that hope may have
been unrealistic—that he might help his
own cause by testifying favorably for the
state's position in the defendant's case.

In this case the range of cross-examina-
tion to show bias should be even broader
than in other cases. In many areas, such
as fingerprints, ballistics, and forensic
chemistry, expert testimony opinions are
formed from “hard” data, knowledge or
principles. The opportunity for the expert
opinion to be influenced by bias is limited.
Psychiatry, in contrast, is a field based
largely on “soft” data or knowledge. Un-
der these circumstances the possibility in-
creases that the psychiatrist's findings,
opinions, and presentations may be slanted,
consciously or unconsciously, by any bias-
es. J. Ziskin and D. Faust, Coping with
Psychiatric and Psychological Testimony
45 (4th ed. 1988).

1 conclude that under the circumstances
of this case the circuit court abused its
discretion in ruling that the evidence of the
criminal investigation involving Dr. Rob-

v. Crick, 675 P.2d $27, S31 (Utah 1983) (“the

mere possibility of future criminal charges is a
sufficient basis to explore the motives of the
wiiness on cross-examination [and to} place his
apprehensions thereof before the jury”).

9. The fact that the charges againsi Dr. Roberts
were unproven might be important to the defen.
dants theory of admissibility basea on challeng
ing Dr. Roberts's credibility. Since | conclude
that the evidence was admissibic to show bias. !
do not reach that issuc.

C-21

STATE v. LINDH Wis. 189
Cite as 468 N.W2d 168 (Wie. 1991)

erts was irrelevant to the defendant's theo
ry of bias.’*

III.

Relevant evidence, of course, may be
barred if its probative value is outweighed
by unfair prejudice. The circuit court may
exclude relevant evidence if it has “a tend-
ency to influence the outcome by improper
means.” State v. Baldwin, 101 Wis.2d
441, 455, 304 N.W.2d 742 (1981). The state
argues that unproved allegations of Dr.
Roberts's sexual misconduct with patients
is a “highly emotionally charged” issue
that would distract the jury.

Dr. Roberts’s testimony was of great
importance to the state. The sole issue in
the second phase of the tria! was the defen-
dant’s mental state. Both the state and
the defendant relied on expert witnesses to
prove the defendant's mental state. Dr.
Roberts was the only expert witness who
saw the defendant at the critica] time, the
day of the offense. The jury's responsibili-
ty was to “weigh the opinion of one expert
against that of another ... consider{ing]
the relative qualifications and credibility of
the expert witnesses.” Wis JI-Criminal
200A (Rel. No. 10—11/83)."'

The evidence of Dr. Roberts's being an
object of an investigation for criminal
wrongdoing was probative of bias. Any
prejudice or distraction caused by giving
this information to the jury could have
been circumscribed by restricting the scope
of the defendant's cross-examination."*
The nature of the allegations made by Dr.
Roberts's patients was irrelevant to the
defendant's theory of bias. The relevant
information for the jury was the serious-
ness of the allegations, the referral of the
allegations by the hospital to the state for
possible criminal prosecution, and the ef.-
fect on Dr. Roberts's professional career,
livelihood, reputation and personal life

10. Because | believe the circuit court abused its
discretion in refusing tc admit the evidence of
bias on crossexamination, | do not reach the
defendant's constitutional claim based on the
confrontatior. clause. | note, however, that con-
forming to the Wisconsin Rules of Evidence
May not satisfy constitutional requirements

should he be charged with or convicted of
these charges. a

Given an adverse party's great latitude
regarding the subject and scope of an in-
quiry to show the witness's bias, the impor-
tance of Dr. Roberts’s testimony, and the
circuit court’s power to curtail any undue
prejudice to the state by limiting the cross-
examination, the circuit court abused its
discretion in barring all the proffered evi-
dence, concluding that prejudice to the
state outweighed the probative value of the
evidence in this case.

IV.

I further conclude that the error barring
the evidence was not harmless. Dr. Rob
erts was the state’s primary psychiatric
witness. He emphasized in his testimony
the value of having interviewed the defen-
dant on the day of the shooting—an advan-
tage the other psychiatric Witnesses could
not claim. Despite the defendant’s having
the burden of proof on the mental disease
or defect issue in the second half of the
bifurcated trial, I conclude that prohibition
of the bias evidence on cross-examination
of Dr. Roberts undermines confidence in
the outcome of this case. State v. Dyess,
124 Wis.2d 525, 544-45, 370 N.W.2d 222
(1985).

V.

Finally, | register my disagreement with
the majority's conclusion that the Miranda
rule does not apply to Dr. Roberts's initial
interview of the defendant. The United
States Supreme Court has not yet decided a
case which discusses the application of Mi-
randa in situations such as the one
presented in this case, namely, where the
interview takes place before the accused

11. The members of the jury are always the “sole
judges of the credibility of the witnesses and the
weight and credit to be given to their testimo
ny.” Wis Ji-Criminal 300 (Rel. No. 25—6/90)

12. The circuit court never considered limiting
instructions, because the court ruled the evi-
dence was not relevant.

190 Wis. 468 NORTH WESTERN REPORTER, 24 SERIES

has been charged or has raised a defense
of insanity."

The court should not reach out and de
cide this issue which is not presented by
the facts of the case. The court of appeals
correctly determined, I believe, that Dr.
Roberts's Miranda warnings to the defen-
dant were adequate and that the defen-
dant’s rights were honored. Although Dr.
Roberts failed to inform the defendant that
« lawyer would be provided to him at state
expense, if necessary, a Dane County de
tective gave the defendant his full Mi-
randa rights less than an hour before the
interview with Dr. Roberts.

For the reasons set forth, I would affirm
the decision of the court of appeals. Like
the court of appeals, I would remand for a
new trial on the defendant’s plea of not
hed by reason of mental disease or de-
ect.

7 . > -
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PY
r 156 Wis.2d 768
4 STATE of Wisconsin,
. Plaintiff—Respondent,' .
v.
Aaron LINDH, Defendant-Appellant.
No. 83-0896-CR.
ey * Court of Appeals of Wisconsin.
Submitted on Briefs Dec. 8, 1989.
Opinion Released May 24, 1990.
: Opinion Filed May 24, 1990.
Defendant was convicted of murder.
Judgment was entered in the Circuit Court,
- Dane County, Robert R. Pekowsky, J. De

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STATE v. LINDH Wis. 565
Cite as 457 N.W.2d S64 (Win App. 1990)

fendant appealed. The Court of Appeals,
Gartzke, PJ., held that: (1) psychiatrist
interviewing suspect shortly after incident
did not improperly advise him of his rights
to remain silent, and (2) trial court commit-
ted prejudicial error by refusing to permit
defendant to cross-examine psychiatrist as
to charges that ne had sexually abused his
patients.

Reversed and remanded.

1. Criminal Law ¢412.2(3)

Warnings given by psychiatrist acting
as agent of state in questioning suspect in
murder case, as to his right to remain
silent, were satisfactory even though no
mention was made of right to free lega
counsel and to suspect’s right to stop an
swering questions at any time; ful! and
correct Miranda warnings had been giver
by police detective less than one hour prem
ously. U.S.C.A. Const Amend. 14

2. Criminal Law @=412.1(4), 412.2(5)

Murder suspect’s closing of his eyes,
following comment by psychiatmst acting
as agent of police that he would give sus-
pect a few minutes to consider whether he
wished to continue answering questions,
did not constitute assertion of right to re
main silent but was rather an expressed
initia! reluctance to discuss a topic which
Suspect waived by continuing to answer
questions after psychiatrist returned. U.S
C.A. Const.Amend. 14

3. Criminal Law 489

Trial court erred in prohibiting defen-
dant in murder case from cross-examining
State’s psychiatric witness as to psychia-
inst’s alleged sexual activities with his pa
ents, even though issue was unrelated w
the murder; defendant should have been
allowed to develop argument that psychia-
trist, who was facing possible criminal!
charges, would be apt to tailor his testimo-
nY regarding defendant's competency in or.
der to gain favor with prosecutor.

1. Section 971.15. Stats., provides

4. Criminal Law 1169.9

Trial court committed prejudicial! error
by prohibiting defendant in murder case
from cross--xamining psychiatrist, who
was State's principal witness as to defen-
dant’s competency, as to charges that psy-
chiatrist had engaged in improper sexual
activity with patients; psychiatrist had em-
phasized that his findings were superior to
contrary findings of defendant's psychia-
trist because they were made shortly after
incident occurred, and if jury had discount-
ed testimony due to revelations of state
psychiatrist’s sexual activities, State’s only
other psychiatrist witness had given much
more “guarded” statement that defendant
was competent.

Kenneth P. Casey, Asst. State Public De
fender, on the brief, for defendant-appel-
lant

Donald J. Hanaway, Atty. Gen., by Sally
L. Wellman, Asst. Atty. Gen., on the brief,
for plaintiff-respondent.

Before GARTZKE, PJ., and SUNDBY
and DYKMAN, JJ.

GARTZKE, Presiding Judge.

Aaron Lindh appeals from a judgment of
conviction of two counts of first-degree
murder, sec. 940.01(1), Stats. 1985, while
using a dangerous weapon, sec. 939.-
63(1Ma)2, Stats., of attempted first-degree
murder while using a dangerous weapon,
sec. 939.32(1Ma), and of carrying a firearm
in a public building, sec. 941.235(1), Stats.

On January 15, 1988, Lindh carried a
shotgun into the City-County Building in
Madison, Wisconsin, and shot three people
he did not know When deputy sheriff
Louis Molnar ordered Lindh to stop and put
down his weapon, Lindh advanced on him
while shouting “Shoot me! _ Kill me!”
Lindh and Molnar simultaneously fired at
each other. Lindh was hit and disabled.
Molnar was not hit. Two of Lindh’s three
vicums died.

Lindh pled not guilty by reason of mental!
disease ' to all charges. A bifurcated trial

(1) A person is not responsible for criminal
conduct if at the time of such conduct as a

566 Wis. 457 NORTH WESTERN REPORTER, 2d SERIES

was held pursuant to sec. 971.165, Stats.
He pled guilty to the firearm charge and
the dangerous weapon penalty enhancer
and was found guilty of the other charges
by a jury. The jury then found Lindh did
not have a mental! disease at the time of the
shootings. Lindh challenges only that find-
ing.

Lindh contends that the trial court erred
by refusing to suppress statements he
made to a psychiatrist. We conclude that
the court did not err in that regard. Lindh
also contends that he should have been
allowed to cross-examine the psychiatrist
about pending investigations into his sexu-
al misconduct with patients. We agree,
and because the error was prejudicial, we
reverse the judgment and remand for a
new trial as to Lindh’s mental state.

1. FACTS

Lindh was taken to the hospital after
deputy Molnar shot him, was placed under
general anesthesia, and underwent surgery
which ended at 3:30 p.m. Lindh was then
sedated, placed in intensive care, and given
pain medication.

During the afternoon, the prosecutor as-
signed to the case retained Dr. Leigh Rob-
erts, a psychiatrist with a specialty in fo
rensic psychiatry. The prosecutor told Dr.
Roberts that a shooting had occurred, that
Lindh was in custody, and that questions
might be raised regarding his mental state
during the shooting. The prosecutor asked
Dr. Roberts to interview Lindh.

At 8:34 p.m., two Madison detectives
questioned Lindh in irtensive care. They
quesuoned him for thirty minutes after

result of mental disease or defect he lacked
substantial capacity either to appreciate the
wrongfulness of his conduct or conform his
conduct to the requirements of law.

(2) As used in this chapter, the terms “men-
‘tal disease or defect” do not include an abnor-
mality manifested only by repeated criminal

otherwise antisocial conduct.

or

(3) Mental disease or defect excluding re-
sponsibility is an affirmative defense which
the defendant must establish to a reasonable
certainty by the greater weight of the credible
evidence.

2 One of the detectives read Lindh his rights
fromm a card which said: “You have the right to

him in accordance with Miranda v. Ari.
zona, 384 US. 436, 86 S.Ct 1602, 16
L.Ed.2d 694 (1966)? They concluded the
interview when Lindh said he was thirsty
and was starting to fee] some pain.

At 9:33 p.m., Dr. Roberts came to
Lindh’s hospital room. At the suppression
hearing, Dr. Roberts testified as follows:

Q: When you first contacted (Lindh),

what did you tell him, if anything?

A: When I first contacted him, I intro .

duced myself. I explained that you~
{the prosecutor] had sent me. I ex-
plained the purpose of the examina-
tion, related to my determining his
mental state as of that time and as of
earlier that day. As I went through
each of the items with him, I asked
him if he understood and got a verbal
affirmative response from him. I ex-
plained to him that our discussion was
not of a confidential nature, that any-
thing that was reported could subse
quently be reported to other persons,
since it was done at the request of the
District Attorney's office and it related
to legal matters. I explained to him
that he did not have to speak with me.
I asked him if he had an attorney. He
indicated, “No.” I asked him if he
wanted an attorney before he spoke
with me. And, again, he indicated,
“No.” I asked him if he understood
that he was giving up his right to have
an attorney before talking with me, if
he did talk with me. And he indicated
he did. I explained to him that the

STATE v. LINDH Wis. 567
Cite as 457 N.W2d 564 (Wis App. 1990)

concerns about his menta! state had to
do with was he at risk to harm himself.

I explained to him, also, that the pur-
of the examination had w do with
his mental abilities now, in terms of talk-
ing with people, and my assessment of
his mental abilities that afternnoon, and
that that might be used later in a court
process, concerning was he mentally re
sponsible.

Q: Did you indicate to him, sir, that if he
couldn't afford to hire an attorney, one
would be provided for him, before you
talked to him?

A: No. I did not.

Dr. Roberts did not tell Lindh that he could
stop the questioning at any time.

Dr. Roberts asked Lindh if he could re-
call what had happened earlier that day in
the City-County Building. Lindh said he
had a limited amount of recal] but remem-
bered shooting three people. When asked
why, Lindh responded that he did not know
and that he did not want to discuss the
details at that time. Dr. Roberts then sug-
gested that Lindh might want to reconsider
whether to talk at all because he did not
have a lawyer. Lindh responded by closing
his eyes. Dr. Roberts stated that he would
leave, wait a few minutes, and then return.

Dr. Roberts left Lindh and returned
twelve minutes later. Lindh said he under-
stood that he did not have to talk with Dr.
Roberts and understood why Dr. Roberts
was there. Dr. Roberts then mentioned
the absence of a lawyer but Lindh said he
would talk. Dr. Roberts asked Lindh
about his background, what had led to the
shooting incident, and his past and present
mental state. This second meeting lasted
for about thirty minutes.

On March 8, 1988, Dr. Roberts learned
that the University of Wisconsin hospital
was investigating a claim that he had en-
gaged in sexual misconduct with a female
patient He knew of sec. 940.22, Stats.,
which provides criminal penalties for the
sexual exploitation of a patient by a thera-
pist. In May 1988, he learned that the
Medical Examining Board was investigat-

ing charges against him. The complaint
before the board alleged several incidents
of sexual misconduct by Dr. Roberts with
three female patients.

On April 8, 1988, Lindh moved to sup
press his statements to the police and Dr.
Roberts because they were obtained in vio-
lation of Miranda. The tria! court denied
the motion by decision and oraer filed Sep-
tember 15, 1988.

Meanwhile, on June 22, 1988, Dr. Rob
erts again interviewed Lindh in the Dane
county jail. The next day, the hospital
referred the investigation of Dr. Roberts’
sexual misconduct to the Dane county dis- .
trict attorney. The district attorney imme
diately sought to have a special prosecutor
appointed. The circuit court made the ap
pointment on June 28, 1988. Dr. Roberts
learned of the appointment on July 8, 1988.
On August 17, 1988, he issued a report
concluding that Lindh did not suffer from a
mental disease on the day of the shooting.
On August 22, 1988, he again interviewed
Lindh.

The state moved the trial court in limine
to prohibit any inquiry at trial about the
allegations of sexual misconduct against
Dr. Roberts or any possible ramifications
of the allegations. The court granted the
mouon.

At the mental disease stage of the trial,
Dr. Ezra Griffith testified on behalf of
Lindh. Dr. Griffith is a specialist in foren-
sic psychiatry and an associate professor of
psychiatry at Yale University. He opined
that at the time of the shooting Lindh
suffered from a mental disease. He was in
the throes of a psychotic state diagnosed as
a brief reactive psychosis. As a result of
that state, Lindh lacked substantial capaci-
ty to appreciate the wrongfulness of his
conduct or to conform his conduct w the
requirements of law.

Dr. Griffith also testified that long be-
fore the shooting Lindh had suffered from
mental disorders. Dr. Griffith character-
ized Lindh’s long-term disorder as a mixed
personality disorder which fit into two di-
agnostic categories: borderline personality
disorder and narcissistic personality disor-

ness. While being qualified in the presence

sex crimes law, that he had chaired confer-
ences on mental health in relation to reli-
gion, rehabilitation, and law, and that he
had recently been honored “as essentially
the mid-west psychiatrist of the year.” He
had testified “several hundred times” on
the mental condition of persons who have
committed crimes.

Dr. Roberts opined that Lindh was not
suffering from a mental disease at the time
of the shooting. He had an antisocial per-
sonality disorder but that is not a mental
disease. He had neither a borderline nor a
narcissistic personality disorder. He did
not suffer a brief reactive psychosis.

Dr. Roberts implied he had an advantage
in diagnosing Lindh's menta! state because
he had interviewed Lindh within hours of
the crime. When asked how important it
was to see Lindh on the day of the shoot-
ing, Dr. Roberts testified:

It's very important. It’s not always es-

sential.... However, it is very helpful

to have had the first hand experience and
to be able to do a professional evaluation
that close in time to the actual event and
to see what he looked like in that immedi-
ate period, that particular day within just

a few hours of the time that (the) behav-
The state also called Dr. Frederick Fos-
dal, a psychiatrist, as an expert witness.
Dr. Fosda] was present during the testimo
ny of the other two doctors and had avail-

D-5

able to him most of the same materia),
they relied upon. He testified that he had
twice talked with Lindh for three hours and
the information he obtained during those
interviews was identica) to that the other
doctors obtained.

Dr. Fosdal opined that Lindh was not

suffering a brief reactive psychosis on the
day of the shootings. Lindh had no mentg!
disease on that day. He agreed with Dr.
Griffith that Lindh fit the category of
mixed personality disorder. He conec +-4
that Lindh might have the traits of both
narcissistic personality disorder and a bor.
derline personality disorder. He agreed
that brief reactive psychoses are possible
complications of each disorder and that a
brief reactive psychosis is a mental! disease
The jury found that Lindh was not suf.
fering from a mental! disease at the time of
the shootings in the City-County Building
on January 15, 1988. The trial court ep-
tered the judgment of conviction from
which Lindh appeals.

2. VIOLATION OF MIRANDA
RIGHTS

{1]} The prosecution stipulated that Dr.
Roberts acted as an agent of the police
when he initially questioned Lindh after his
surgery. As a police agent, Dr. Roberts
was required to give Miranda warnings.

Lindh argues that Dr. Roberts gave him
insufficient Miranda warnings when inter-
viewing him on the day of the shooting.
Lindh notes that Dr. Roberts failed to ad-
vise him that he had the rights to have
counsel appointed for him if he could not
afford counsel! and to cut off questioning at
any time. He also argues that Dr. Roberts
failed to scruoulously honor Lindh’s invoca-
tion of his right to remain silent.

The state denies that Lindh’s Miranda

STATE v. LINDH Wis. 569
Cite as 457 N.W2d 564 (WisApp. 1990)

Given the complete Miranda warnings to
Lindh an hour earlier, we conclude that Dr.
Roberts gave him “the now familiar Mi-
randa warnings ... or their equivalent.”
California v. Prysock, 453 U.S. 355, 360,
101 S.Ct. 2806, 2809, 69 L.Ed.2d 696 (1981)
(emphasis in original) (quoting Rhode /s-
land v. Innis, 446 U.S. 291, 297, 100 S.C
1682, 1688, 64 L.Ed.2d 297 [1980)). “It
would be strange indeed for [a) court to
hold that, where within the space of a few
hours a defendant has been properly ad-
vised of his rights, a subsequent confession
would be vitiated by an admonition that
was somewhat less than technically per-
fect.” Grennier v. State, 70 Wis.2d 204,
213, 234 N.W.2d 316, 321 (1975). Here only
an hour intervened between Lindh’s being
properly advised and the less than complete
admonitions.

{2} Lindh argues that he invoked his
right to remain silent by telling Dr. Rob
erts that he did not want to discuss the
details of the shootings and by closing his
eyes when Dr. Roberts said he might want
© reconsider whether to have an attorney
Present. We disagree.

Lindh did not invoke his right to remain
silent but rather expressed initial reluc-
tance to discuss a topic. People v. Gali-
manis, 765 P.2d 644, 647 (Colo.Ct. App.
1988), cert. granted, 783 P.2d 838 (Colo.
1989). Dr. Roberts gave Lindh a few min-
ules to reconsider whether he wanted to
talk at all and whether he wanted an attor-
ney. Lindh acquiesced by closing his eyes.
He at no time stated he did not wish to talk
Or that he wanted an attorney. When Dr.
Roberts returned, Lindh agreed to talk,

answered background questions, and then
freely discussed details of the shootings.
As in Galimanis, “(there is nothing in the
record to show that his comments were
coerced or involuntary in any way, or that
his responses were the result of surrepti-
tious mental invasion.” /d. (citing Early v.
Tinsley, 286 F.2d 1 [10th Cir.1960), cert
denied, 365 US. 830, 81 S.Ct 717, 5
L.Ed.2d 708 [1961]}).

Having concluded that Lindh’s Miranda
rights were not violated, we need not and
do not decide whether statements taken in
violation of Miranda must be suppressed

in the mental disease phase of a bifurcated |

trial.

3. IMPEACHMENT OF PSYCHIA-
TRIST

Lindh argues here, as he forcefully ar-
gued to the trial court, that he should have
been allowed to cross-examine Dr. Roberts
about the pending investigations concern-
ing his alleged sexua] misconduct with pa-
tients. Lindh avers that the error preju-
diced him and violated the confrontation
clause of the sixth amendment to the Unit-
ed States Constitution. We conclude preju-
dicia] error occurred and do not reach the
consttutional question.

{3} The trial court precluded Lindh’s
cross-examining Dr. Roberts regarding the
investigations on grounds that the matter
was irrelevant to the sanity issues and did
not support Lindh’s theory that Dr. Rob-
erts was biased. We will sustain the exclu-
sion of evidence on relevancy grounds un-
less the trial court abused its discretion.
Rogers v. State, 93 Wis.2d 682, 689, 287
N.W.2d 774, 777 (1980). “The proper stan-
dard for the test of relevancy on cross-ex-
amination is not whetl.:- the answer
sought will elucidate any of the main issues
in the case but whether it will be useful to
the trier of fact in appraising the credibility
of the witness and evaluating the probative
value of the direct testimony.” /d In
Wisconsin, any relevant matter may be in-
quired into on cross-examination without
regard to the scope of direct examination.
Id.

gation had been referred by the Dane coun-
ty district attorney to a specia) prosecutor.
No criminal charges had been brought
against Dr. Roberts. No dea! had been

However, in this case, as in Rogers, the

He disputed each contention of Lindh's ex-
pert. And his profession and livelihood
could be jeopardized if he were convicted of
sexual misconduct with a patient.’
A trial court should be particularly solic-
itous of cross-examination intended wo
disclose bias or prejudice; ¢.g., a broad
opportunity for examination should be
allowed if its objective is to establish that
an adverse witness in a cmmuina! matter
is giving his tesumony in anucipauon of
favorable personal treatment, such as,
police leniency by the state...

... The mere possibility of future
criminal charges is a sufficient basis to
explore the motives of the witness on
cross-examination [and to} piace his ap
prehensions thereof before the jury.

State v. Chesnut, 621 P.2d 1228. 1233
(Utah 1980), disapproved on other

3. A “therapist” (which includes a physician)
“who intentionally has sexua! contact with a
patient ... during any ongoing therapist-patient
... Telationship” is guilty of a class D felony.

Sec. 940.22(2), Stats.

the probative value of the direct testimo
ny.” Rogers, 93 Wis.2d at 689, 287 N.W.2d
at 777.

{4) The error prejudiced Lindh. If the
jury had disbelieved Dr. Roberts, they
could have relied upon the other expert for
the state, Dr. Fosdal. His testimony was
significantly more guarded than Dr. Rob
erts’. Dr. Fosdal agreed with Dr. Griffith
that Lindh fit the category of mixed per-
sonality disorder and conceded Lindh might
have the traits of narcissistic and border-
line personality disorders. Dr. Fosdal con-
ceded that brief reactive psychoses are
known complications of the latter two dis-
orders. If the jury had been given reason
to doubt Dr. Roberts’ diagnoses, it could
have concluded Lindh had suffered a brief
reactive psychosis and therefore a mental
disease.

4. Lindh killed two county employees and 4t-
tempted to kill an employee of the state's justice
department

SCHUNK v. BROWN ’ Y Wis, 57]

Cite as 457 N.W.2d STi (Win App. 1990)

A reasonable possibility exists that the

error contributed to the jury’s finding that

Lindh did not suffer from a menta! disease

at the time of the shootings. That being

the case, we cannot find that the error was

harmless. State v. Dyess, 124 Wis.2d 525,

548, 370 N.W.2d 222, 231-32 (1985).

We conclude the second phase of the
bifurcated proceeding must be retried We
do not reach the issue whether the error
deprived Lindh of his rights under the con-
frontation clause of the sixth amendment
See Id. at 533, 370 N.W.2d at 227 (appellate
court need not address claim of constitu-
tional error if relief available on statutory
or common law grounds).
Judgment reversed and cause remanded
for a new trial as to whether Lindh is not :
guilty of the charges by reason of mental!
disease or defect.

CONSTITUTIONAL AND STATUTORY PROVISIONS
THAT THIS CASE INVOLVES

C , , LP TT
Article I, § 9, 497 2:

The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases or Rebellion or Invasion the
public Safety may require it.

Article Ili:

SECTION 1. The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and
shall at state Times, receive for their Services, a
Compensation, which shall not be diminished during their
Continuance in Office.

SECTION 2. The judicial Power shall extend to all
Cases, in Law and Equity, arising under the Constitution,
the Laws of the United States, and Treaties made, or which
shall be made, under their Authority.

Article VI, 42:

This Constitution and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the Contrary

notwithstanding.
Amen VI:
In all criminal prosecutions, the accused shall enjoy the
right .. . to be confronted with the witnesses against him
Amendment XIV:

No state shall deprive any person of life, liberty, or
property, without due process of law.

Statutory Provisions

HABEAS CORPUS STATUTES — 28 U.S.C. §§ 2241-2266
[As amended through April 1996]

[Provisions added by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, tit. 1 (1996), enacted on April 24, 1996, are indicated by redline; provisions deleted by the Act
are indicated by strikeout. ]

Sec.

2241. Power to grant writ.

2242. Application.

2243. Issuance of writ; return; hearing; decision.

2244. Finality of determination.

2245. Certificate of trial judge admissible in evidence.

2246. Evidence; depositions; affidavits.

2247. Documentary evidence.

2248. Return or answer, conclusiveness.

2249. Certified copies of indictment, plea and judgment; duty of respondent

2250. Indigent petitioner entitled to documents without cost.

2251. Stay of State court proceedings.

2252. Notice.

2253. Appeal.

2254. State custody; remedies in Federal courts.

2255. Federal custody; remedies on motion attacking sentence

2261. Prisoners in State custody subject to capital sentence; appointment of counsel; requirement
of rule of court or statute; procedures for appointment. )

2262. Mandatory stay of execution; duration; limits on stays of execution; successive petitions.

2263. Filing of habeas corpus application; time requirements; tolling rules.

2264. Scope of Federal review; district court adjudications.

2265. Application to State unitary review procedure

2266. Limitation periods for determining applications and motions

§ 2241. Power to grant writ

(a) | Whits of habeas corpus may be granted by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge
shall be entered in the records of the district court of the district wherein the restraint complained of
is had

(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain
an application for a wrt of habeas corpus and may transfer the application for hearing and
determination to the district court having jurisdiction to entertain it

Habeas Corpus Statutes -

(c) The writ of habeas corpus shall not extend to a prisoner unless —

(1) He is in custody under or by color of the authority of the United States or is
committed for trial before some court thereof, or

(2) He is in custody for an act done or omitted in pursuance of an Act of Congress,
or an order, process, judgment or decree of a court or judge of the United States; or

(3) He is in custody in violation of the Constitution or laws or treaties of the United
States; or

(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act
done or omitted under any alleged right, title, authority, privilege, protection, or
exemption claimed under the commission, order or sanction of any foreign state, or
under color thereof, the validity and effect of which depend upon the law of nations;
or

(5) It is necessary to bring him into court to testify or for trial.

(d) | Where an application for a writ of habeas corpus is made by a person in custody under
the judgment and sentence of a State court of a State which contains two or more Federal judicial
districts, the application may be filed in the district court for the district wherein such person is in
Custody or in the district court for the district within which the State court was held which convicted
and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the
application. The district court for the district wherein such an application is filed in the exercise of
its discretion and in furtherance of justice may transfer the application to the other district court for
hearing and determination

§ 2242. Application

Application for a writ of habeas corpus shall be in writing signed and verified by the person
for whose relief it is intended or by someone acting in his behalf.

It shall allege the facts concerning the applicant's commitment or detention, the name of the
person who has custody over him and by virtue of what claim or authority, if known.

It may be amended or supplemented as provided in the rules of procedure applicable to civil
actions

If addressed to the Supreme Coun, a justice thereof or a circuit judge it shall state the reasons
for not making application to the district court of the district in which the applicant is held.

§ 2243. Issuance of writ; return; hearing; decision

Habeas Corpus Siatutes - a

A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith
award the writ or issue an order directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant or person detained is not entitled

thereto.
The writ, or order to show cause shall be directed to the person having custody of the person

detained. It shall be returned within three days unless for good cause additional time, not exceeding
twenty days, is allowed.

The person to whom the writ or order is directed shall make a return certifying the true cause
of the detention.

When the writ or order is returned a day shall be set for hearing, not ieee me
the return unless for good cause additional time is allowed.

Unless the application for the writ and the return present only issues of law the person to
whom the writ is directed shall be required to produce at the hearing the body of the person detained.

The applicant or the person detained may, under oath, deny any of the facts set forth in the
return or allege any other material facts.

The return and all suggestions made against it may be amended, by leave of court, before or
after being filed.

The court shall summarily hear and determine the facts, and dispose of the matter as law and
justice require.

§ 2244. Finality of determination

(a) No circuit or district judge shall be required to entertain an application for a writ of
habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the
United States if it appears that the legality of such detention has been determined by a judge or court
of the United States on a prior application for a writ of habeas corpus-and-the petition presents 710

of sustice-witt not-be-served-by-suctrinquiry,, except as provided in section 2255.

Habeas Corpus Siatutes

Habeas Corpus Siatutes .

K por CRI
maa AASLIT.
bras Sy cans

of certiorari.

(4) A district court shall dismiss any claim presented in a second or successive application
that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies
the requirements of this section.

| (c) In a habeas corpus proceeding brought in behalf of a person in custody pursuant to
the judgment of a State court, a prior judgment of the Supreme Court of the United States on an
appeal or review by a writ of certiorari at the instance of the prisoner of the decision of such State
court, shall be conclusive as to all issues of fact or law with respect to an asserted denial of a Federal
nght which constitutes ground for discharge in a habeas corpus proceeding, actually adjudicated by
the Supreme Court therein, unless the applicant for the writ of habeas corpus shall plead and the court
shail find the existence of a material and controlling fact which did not appear in the record of the
proceeding in the Supreme Court and the court shall further find that the applicant for the writ of

ao corpus could not have caused such fact to appear in such record by the exercise of reasonable
iligence.

(d\(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus

md : a Custody pursuant to the judgment of a State court. The limitation period shall run from
the latest of —

eview W h respect to the pertinent | counted toward any

§ 2245. Certificate of trial judge admissible in evidence

On the hearing of an application for a writ of habeas corpus to inquire into the legality of the
detention of a person pursuant to a judgment the certificate of the judge who presided at the trial
resulting in the judgment, setting forth the facts occurring at the trial, shall be admissible in evidence.
Copies of the certificate shall be filed with the court in which the application is pending and in the
court in which the trial took place.

§ 2246. Evidence; depositions; affidavits

On application for a wnt of habeas corpus, evidence may be taken orally or by deposition, or,
in the discretion of the judge, by affidavit. If affidavits are admitted any party shall have the right to
propound written interrogatories to the affiants, or to file answering affidavits.

§ 2247. Documentary evidence

On application for a writ of habeas corpus documentary evidence, transcripts of proceedings
upon arraignment, plea and sentence and a transcnpt of the oral testimony introduced on any previous
similar application by or in behalf of the same petitioner, shall be admissible in evidence

§ 2248. Return or answer; conclusiveness

The allegation of a return to the wnt of habeas corpus or of an answer to an order to show
cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent
that the judge finds from the evidence that they are not true.

Habeas Corpus Statutes

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge,
the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which

the proceeding is held.

b-wiiaot 85 vemove to anther Halts ar plane eezisaaatoeel als prota th arged with 2
seca oflenal apaude the Dalisd Seaiesni4a'ateie oakaay ot'pach Pick bt aslo oaaraie
removal proceedings.

(cX1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not
be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained
of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made
a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).

§ 2254. State custody; remedies in State courts

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain
an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment
of a State court only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant
(2) An application for a wnt of habeas corpus may be denied on the merits, notwithstanding
the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped

Habeas Corpus Statutes

§ 2249. Certified copies of indictment, plea and judgment; duty of respondent

On application for a writ of habeas corpus to inquire into the detention of any person pursuant
to a judgment of a court of the United States, the respondent shall promptly file with the court
certified copies of the indictment, plea of petitioner and the judgment, or such of them as may be
material to the questions raised, if the petitioner fails to attach them to his petition, and same shall be
attached to the return to the writ, or to the answer to the order to show cause.

§ 2250. Indigent petitioner entitled to documents without cost

If on any application for a writ of habeas corpus an order has been made permitting the

petitioner to prosecute the application in forma pauperis, the clerk of any court of the United States
shall furnish to the petitioner without cost certified copies of such documents or parts of the record
on file in his office as may be required by order of the judge before whom the application is pending.

§ 2251. Stay of State court proceedings

A justice or judge of the United State before whom a habeas corpus proceeding is pending,
may, before final judgment or after final judgment of discharge, or pending appeal, stay any
proceeding against the person detained in any State court or by or under the authority of any State
for any matter involved in the habeas corpus proceeding.

After the granting of such a stay, any such proceeding in any State court or by or under the
authority of any State shall be void. If no stay is granted, any such proceeding shall be as valid as if
no habeas corpus proceedings or appeal were pending.

§ 2252. Notice

Prior to the hearing of a habeas corpus proceeding in behalf of a person in custody of State
officers or by virtue of State laws notice shall be served on the attorney general or other appropriate
officer of such State as the justice or judge at the time of issuing the writ shall direct.

§ 2253. Appeal

Habeas Corpus Statutes

from reliance upon the requirement unless the State, through counsel, expressly waives the
requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if he has the right under the law of the State
to raise, by any available procedure, the question presented.

Dibrtrs C3 it ort dee States;

(2) Fesilliéd in a decision that was based on an wnréasGeiable Basarittsaiscereletcet
in light of the evidence presented in the State court proceeding.

for a writ of habeas corpus by'a person in
etermination of a factual issue made by a State
y t shall have the burden of rebutting the

POU

Soh i) thee underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional esr, no reasonable factfinder would have

¢eX(f) If the applicant challenges the sufficiency of the evidence adduced in such State court
proceeding to support the State court's determination of a factual issue made therein, the applicant,

if able, shall produce that part of the record pertinent to a determination of the sufficiency of the
evidence to support such determination. If the applicant, because of indigency or other reason is
unable to produce such part of the record, then the State shall produce such part of the record and
the Federal court shall direct the State to do so by order directed to an appropriate State official. If
the State cannot provide such pertinent part of the record, then the court shall determine under the
existing facts and circumstances what weight shall be given to the State court's factual determination.

(f(g) A copy of the official records of the State court, duly certified by the clerk of such
court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia
showing such a factual determination by the State court shall be admissible in the Federal court

proceeding

(h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings
brought under this section, and any subsequent proceedings on review, the court may appoint counsel
for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule
promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under
this section shal] be governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising under section
2254.

E-10

Habeas Corpus Siatutes

§ 2255S. Federal custody; remedies on motion attacking sentence

A prisoner in custody under sentence of a court established by Act of Congress claiming the
nght to be released upon the ground that the sentence was imposed in violation of the Constitution
or laws of the United States, or that the court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the
sentence.

rae ee On —

Unless the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief, the court shall cause notice thereof to be served upon the United States
attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and
conclusions of law with respect thereto. If the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner
as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment
aside and shall discharge the prisoner or resentenc him or grant a new trial or correct the sentence
as May appear appropriate.

A court may entertain and determine such motion without requiring the production of the
prisoner at the hearing

- enter aeons salt wor be required tor enNerIEnY © SUCRE Or SUCCNRVe MOTION oot

An appeal may be taken to the cour of appeals from the order entered on the motion as from
a final judgment on application for a writ of habeas corpus

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply
for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant
has failed to apply for relief, by motion. to the court which sentenced him, or that such court has
derued hum relief, unless it also appears that the remedy by motion is inadequate or ineffective to test
the legality of his detention

A 1-year penod of limitation shal! apply to a motion under this section. The limitation period
shal! run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if the movant
was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme
Count, if that nght has been newly recognized by the Supreme Court and made retroactively

Soe ert evapo ey res dine enon 284 Seppo
the scheduled execution is subject to stay.

(b) A stay of execution granted pursuant to subsection (a) shall expire if— :

(1) a State prisoner fails to file a habeas corpus application under section 2254 within
the time required in section 2263; | —

(2) before a court of competent jurisdiction, in the presence of counsel, unless the
prisoner has competently and knowingly waived such counsel, and after having been advised
of the consequences, a State prisoner under capital sentence waives the right to pursue habeas
corpus review under section 2254; or

(3) a State prisoner files a habeas corpus petition under section 2254 within the time
required by section 2263 and fails to make a substantial showing of the denial of a Federal
right or is denied relief in the district court or at any subsequent stage of review.

(c) If one of the conditions in subsection (b) has occurred, no Federal court thereafter shall
have the authority to enter a stay of execution in the case, unless the court of appeals approves the
filing of a second or successive application under section 2244(b).

§ 2263. Filing of habeas corpus application; time requirements; tolling rules

(a) Any application under this chapter for habeas corpus relief under section 2254 must be
filed in the appropriate district court not later than 180 days after final State court affirmance of the
conviction and sentence on direct review or the expiration of the time for seeking such review.

(b) The time requirements established by subsection (a) shall be tolled—

()) from the date that a petition for certiorari is filed in the Supreme Court until the
date of final disposition of the petition if a State prisoner files the petition to secure review

E-12

Habeas Corpus Statutes

applicable to cases on collateral review,or
(4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.

Except as provided in section ete ‘ontrolied Substanc

A second of successive motion must be certified as provided in section 2244 by a panel of the
appropriate court of appeals to contain— | | lias
(1) newly discovered evidence that, if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.

§ 2261. Prisoners in State custody subject to capital sentence; appointment of counsel;
requirement of rule of court or statute; procedures for appointment

(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State
custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b)
and (c) are satisfied.

(b) This chapter is applicable if a State establishes by statute, rule of its court of last resort,
or by another agency authorized by State law, a mechanism for the appointment, compensation, and
payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings
brought by indigent prisoners whose capital convictions and sentences have been upheld on direct
appeal to the court of last resort in the State or have otherwise become final for State law purposes.
The rule of court or statute must provide standards of competency for the appointment of such
counsel

(c) Any mechamsm for the appointment, compensation, and reimbursement of counsel as
provided in subsection (b) must offer counsel to all State prisoners under Capital sentence and must
provide for the entry of an order by a court of record—

(1) appointing one or more counsels to represent the prisoner upon a finding that the
prisoner is indigent and accepted the offer or is unable competently to decide whether to
accept or reject the offer,

(2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel
and made the decision with an understanding of its legal consequences; or

(3) denying the appointment of counsel upon a finding that the prisoner is not
indigent

States,

(2) NicNibiat Or ts tuqreme Chih teiagiltan de eee Paige siete
siinentiedifaiilicthie:-ex
ioe (3) based on a factual predicate that could not have been discovered through the
exercise of due diligence in time to present the claim for State or Federal post-conviction
review.

(b) Following review subject to subsections (a), (d), and (e) of section 2254, the court shall
rule on the claims properly before it.

§ 2265S. Application to State unitary review procedure

(a) For purposes of this section, a ‘unitary review’ procedure means a State procedure that
authorizes a person under sentence of death to raise, in the course of direct review of the judgment,
such claims as could be raised on collateral attack. This chapter shall apply, as provided in this
section, in relation to a State unitary review procedure if the State establishes by rule of its court of
last resort or by statute a mechanism for the appointment, compensation, and payment of reasonable
litigation expenses of competent counsel in the unitary review proceedings, including expenses
relating to the litigation of collateral claims in the proceedings. The rule of court or statute must
provide standards of competency for the appointment of such counsel.

(b) To qualify under this section, a unitary review procedure must include an offer of counsel
following tnal for the purpose of representation on unitary review, and entry of an order, as provided
in section 2261(c), concerning appointment of counsel or waiver or denial of appointment of counsel
for that purpose. No counsel appointed to represent the prisoner in the unitary review proceedings
shal] have previously represented the prisoner at trial in the case for which the appointment is made
unless the prisoner and counsel expressly request continued representation.

E-14

a

Habeas Corpus Statutes

ie a (3) Sections 2262, 2263, a ceauviaer Sood aie
of death from — een a ing as

os suiting to Sus SSN ees bor echoicle )
but if transcript of the trial proceedings

wvalabla'to the prisGar os Goaeaaa of the prisoner.
§ 2266. Limitation periods for determining applications and motions

fa) The adjudication of any application under section 2254 that is subject to this chapter, and
the adjudication of any motion under section 2255 by a person under sentence of death, shall be given
priority by the district court and by the court of appeals over all noncapital matters.

~ (0X 1A) A district court shall render a final determination and enter a final judgment on any
application for a writ of habeas corpus brought under this chapter in a capital case not later than 180
days after the date on which the application is filed.

(B) A district court shall afford the parties at least 120 days in which to complete all-actions,
including the preparation of all pleadings and briefs, and if necessary, a hearing, prior to the
submission of the case for decision.

(Ci) A district court may delay for not more than one additional 30-day period beyond the
peniod specified in subparagraph (A), the rendering of a determination of an application for a writ of
habeas corpus if the court issues a written order making a finding, and stating the reasons for the
finding, that the ends of justice that would be served by allowing the delay outweigh the best interests
of the public and the applicant in a speedy disposition of the application.

(u) The factors, among others, that a court shall consider in determining whether a delay in
the disposition of an application is warranted are as follows:

(I) Whether the failure to allow the delay would be likely to result in a miscarnage
of justice

(I) Whether the case is so unusual or so complex, due to the number of defendants,
the nature of the prosecution, or the existence of novel questions of fact or law, that it is
unreasonable to expect adequate briefing within the time limitations established by
subparagraph (A).

(I) Whether the failure to allow a delay in a case, that, taken as a whole, is not so
unusual or so complex as described in subclause (II), but would otherwise deny the applicant
reasonable time to obtain counsel, would unreasonably deny the applicant or the government
continuity of counsel, or would deny counsel for the applicant or the government the
reasonable time necessary for effective preparation, taking into account the exercise of due
diligence
(ui) No delay in disposition shall be permissible because of general congestion of the court's

calendar

(iv) The court shall transmit a copy of any order issued under clause (1) to the Director of

E-15 °

Habeas Corpus Statutes ‘

trative Odie atthe Litto’ States Courts for inclusion in the report under paragraph (5).

Eo NAY heist wo une hy ww an bleh SN

not be a ground for granting relief from a judgment of conviction or sentence.

_ -(B) The State may enforce a time limitation under this section by petitioning for a writ of
nm ‘to the court of appeals. The court of appeals shall act on the petition for a writ of

mandamus not later than 30 days after the filing of the petition. |

_« (SA) The Administrative Office of United States Courts shall submit to Congress an annual

(B) The report described in subparagraph (A) shall include copies of the orders submitted by
the district courts under paragraph (1)(B)iv).

(cX1)(A) A court of appeals shall hear and render a final determination of any appeal of an
order granting or denying, in whole or in part, an application brought under this chapter in a capital
case not later than 120 days after the date on which the reply brief is filed, or if no reply brief is filed,
not later than 120 days after the date on which the answering brief is filed.

(B)(G) A court of appeals shall decide whether to grant a petition for rehearing or other
request for rehearing en banc not later than 30 days after the date on which the petition for rehearing
is filed unless a responsive pleading is required, in which case the court shall decide whether to grant
the petition not later than 30 days after the date on which the responsive pleading is filed.

(i) Lf a petition for rehearing or rehearing en banc is granted, the court of appeals shall hear
and render a final determination of the appeal not later than 120 days after the date on which the
order granting rehearing or rehearing en banc is entered.

(2) The time limitations under paragraph (1) shall apply to—

(A) an initial application for a writ of habeas corpus;

(B) any second or successive application for a writ of habeas corpus; and

(C) any redetermination of an application for a writ of habeas corpus or related
appeal following a remand by the court of appeals en banc or the Supreme Court for further
proceedings, in which case the limitation period shall run from the date the remand is ordered.

(3) The time limitations under this section shall not be construed to entitle an applicant to a
stay of execution, to which the applicant would otherwise not be entitled, for the purpose of litigating
any application or appeal

(4A) The failure of a court to meet or comply with a time limitation under this section shall

Habeas Corpus Statutes

not be a ground for granting relief from a judgment of conviction or sentence. :

(B) The State may enforce a time limitation under this section by applying for a writ of
mandamus to the Supreme Court. 5

(5) The Administrative Office of United States Courts shall submit to Congress an annual
report on the compliance by the courts of appeals with the time limitations under this section.

[The foregoing provisions relating to special habeas corpus procedures in capital cases “shall apply
to cases pending on or after the date of enactment of this Act.” Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, tit. 1, § 107(c) (1996) (enacted Apr. 24, 1996).]

17

6)
'

Habeas Corpus Statutes

STATUTE ON COUNSEL IN DEATH PENALTY CASES — 21 U.S.C. § 848(q)

[Provisions added by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-
132, tit. 1 (1996), enacted on April 24, 1996, are indicated by redline; provisions deleted by the Act
are indicated by strikeout. }

21 U.S.C. § 848(q):

(4A) Notwithstanding any other provision of law to the contrary, in every criminal
action in which a defendant is charged with a crime which may be punishable by death, a
defendant who is or becomes financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary services at any time either -- -

(i) before judgment; or

(ii) after the entry of a judgment imposing a sentence of death but before the

execution of that judgment;
shal] be entitled to the appointment of one or more attorneys and the furnishing of such other
services in accordance with paragraphs (5), (6), (7), (8), and (9). P

(B) In any post conviction proceeding under section 2254 or 2255 of title 28 seeking
to vacate or set aside a death sentence, any defendant who is or becomes financially unable
to obtain adequate representation or investigative, expert, or other reasonably necessary
services shall be entitled to the appointment of one or more attorneys and the furnishing of
such other services in accordance with paragraphs (5), (6), (7), (8), and (9).

(S) If the appointment is made before judgment, at least one atto

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0085%3A03. Public record. Not legal advice.