Harold Earl v. Thomas Israel
765 F.2d 91
7th Cir.
1985
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*2 CUDAHY, Before POSNER and FLAUM, Judges. Circuit POSNER, Judge.

Harold Earl from the district denying petition court’s order his for habe- corpus. Earl had been sentenced life imprisonment following his conviction first-degree murder a Wisconsin state exhausting court. After his state remedies sought federal corpus, arguing habeas that he had not had effective assistance counsel at his state trial. deny

Earl does not having stabbed to Stacy, death Denise a friend of es- wife, tranged Nancy Earl. Nancy Earl tes- tified that she say overheard her husband officer, police to a days three Ha- before “Damn, rold Earl Stacy, killed Denise Den- ise, business, my if she stay doesn’t out of going I am kill that bitch.” This testi- mony complaint is the focus of Earl’s lawyer’s effectiveness his trial ef- forts on his behalf. The almost certainly police was false. Both officers post-conviction denied under oath—but in proceedings, not at the trial —that Earl had during threatened Denise the incident about which But Earl testified. failed offi- to interview the cers, knowing and not what their would be did not call them as witnesses testimony. rebut investigation, lawyer’s failure to do officers had so been listed before One prosecution representa- with the not establish ineffective will — name, “prior contact Washington, beside his tion. notation Strickland v. U.S. -, 2052, 2066, threat.” This notation led defense 80 L.Ed.2d 674 S.Ct. counsel, investigate, move (1984). rather than lawyer testified in Earl's the Wis- *3 trial, from judge, to exclude the trial before post-conviction proceeding pre- consin that Harold the trial statements made corpus action that he had ceded this habeas to the Earl that had not furnished figured that if his motion to exclude evi- discovery request. pursuant defense to its denied, he dence of death threats He judge granted The trial the motion. them; investigate to would then have time again the trial that the opening ruled at granted, he have it was would not to and if prosecutor go into the matter of was not to investigate them. He cannot be criticized “open[ed] unless defense counsel threats (in He for the motion. testified making on direct or cross.” the door on threats proceeding) that post-conviction the state Ha- During the defense counsel asked trial by making the motion the form he did—a had ever intended to rold Earl whether he to all of Earl motion exclude statements Stacy, he answered “no.” kill Denise had furnished to the defense that not been cross-examination, objection, the over On response discovery request to its —he he had ever prosecutor Earl whether asked prosecutor hoped to induce the to make had Stacy’s life. Earl an- response request, a more extensive to that completion of the the “no.” After swered prepare so easier to a would be case, prosecutor the called defense a This was not foolish or reckless defense. gave a she Earl as rebuttal tactic, especially beyond when succeeded Defense quoted we earlier. the lawyer’s expectations: the the enable for continuance to counsel asked a granting seemed to the motion eliminate Nancy Earl and other him to interview case, from the issue of threats the to presumably the officers who witnesses— had been to the make the notation about threats next Earl present when Harold had prosecution’s name of one of the witnesses alleged The trial statement. made moot. right said, to “You can talk her judge now,” defense counsel came back and when always a Of course there was with, to the state- “What about witnesses would developments at trial chance that ment?,” “I judge trial said: think be- But it was reopening the issue. result that, surprise to the yond I don’t see unprofessional to unreasonable as be not so defense____” took this to Defense counsel that he heed for counsel to assume defense precluded talking from that he was mean investigation into the factu not conduct an officers, talk to them and he did not to the background of an that he had al issue The Wisconsin or them as witnesses. call from the tri getting excluded succeeded judge found that had court unexpected that if should al—to assume prevent to defense counsel not intended an ly pop up in the trial he would have witnesses; interviewing had there from investigate A more to then. opportunity communication, mix-up in but we “a far-seeing lawyer would cautious and why understand Johnson now [Harold police gone interviewed ahead and lawyer] talk the offi- trial did not Earl’s undertaking. But men—not a burdensome court had fore- He believed the trial cers. carry duties to lawyer’s out his failure to speaking with” them. him from closed extraordinary skill and con his client with representation to which a crimi The not convict the scientiousness does constitutionally entitled re nal defendant representation. of subminimum trial, lawyer, before to look quires his pretty much dooms This conclusion helpful to the defend evidence that will be of ineffective assistance Earl’s claim ant; in the if it reasonable but of course happened at the nothing that counsel. For particular circumstances not to pro- trial indicates that Earl’s IQ counsel was tent to kill from the fact that the test he fessionally inadequate. It IQ is true that if administered to Earl showed not asked moderately had Earl whether Earl had ever which is Yet retarded. Stacy, Nancy IQ intended to kill Denise test contained on the one hand difficult (such questions would not have been admitted. height as the of the aver- woman), age But counsel had no reason to think that American the other asking question reopen questions the rul- easy hand way answer in a admissibility ing (alleged) suggestive on the of Earl’s (e.g., many retardation how during the statements. When the months year?), plus ques- are there in a prosecutor get the judge had tried to tions that have to do with morality rather change (such mind intelligence as, admission of the than you what would statement if you stamped, found a addressed en- said, go prosecution velope street?). “the will not into the principal de- *4 fense, therefore, was, matter of threats of nature with the though feeble it was Nancy against Stacy self-defense; both Stacy Denise had come at him knife, Nancy and Earl.” This have must seemed with a and he had wrested fromit definitive, pretty and emboldened Earl’s her and killed her with it. Earl does not argue question counsel to Earl about his intent to unprofessional that his counsel was kill. putting defense; in on such a and there no way was to make out the defense with- Even if counsel should have realized that being out Earl’s called as a witness. Even judge’s the warning “opening earlier if his counsel had not him asked whether force, door” judge the remained in the had he had ever intended to kill Stacy, the against opening warned the door “on prosecutor argued could still have that threats.” Defense counsel could reason- Earl’s opened up self-defense ably by have understood this that he was threats, the issue of if since Earl had long as as he safe did not ask Earl whether life, Stacy's threatened this would make his Earl had Stacy. ever Denise defense of self-defense less believable. Counsel severely cannot be criticized for having not realized any inquiry that into objected vigorously Defense counsel door,” to kill “open intent would the prosecutor when the on cross-examination when that intent awas threats, central issue in the asked Earl about and later when analytically and case was prosecutor distinct from the put on the Earl as a matter of threats. witness; rebuttal counsel tried to interview statement; the though witnesses to he Earl had stabbed a defenseless judge forbidding misunderstood the him repeated jabs woman to death with of a so, to do misunderstanding the was a rea- knife, kitchen one of which was seven sonable one. A more alert and determined penetrated deep inches the heart. His lawyer might pressed point have the harder negated by intent to kill was not the lack daring lawyer might and more tak- have planning. advance “No appreciable space aen chance and called the officers wit- required elapse time is to the between nesses without first interviewing them formation intent to kill and the act of (though altogether not clear that the killing in order for the to homicide be first- this); would have allowed but degree murder.” State, Brook 21 v. is not obey unreasonable for a to 32, 45, 535, (1963); Wis.2d 123 N.W.2d 541 judge's ruling, what thinks even 489, Clifford, 477, v. State 58 Wis. 17 N.W. though ruling might percent not be 304, (1883); see Wis.Crim.Code 940.- § Lawyers naturally clear. to anta- hesitate 01; Solina, cf. v. United States 733 F.2d gonize judges by pressing points after 1208, (7th Cir.1984). 1214-15 The defense judge appears to have ruled them. some, presented not convincing, psy but chological evidence; one all, representa witness inferred in Considered all that Earl not intended kill Stacy tion of Harold Earl did not fall below mini noting standards; indeed, that there were no professional stab wounds mum but back, her and another judge’s inferred lack of in- somewhat erratic 02(1). however, Bernal, Earl does It is illustrated v. which State the trial —of (Wis.App.1983), representation would 330 N.W.2d 220-22 complain not —the event, In we do the defendant shot at the flawless. where victim’s prejudiced; legs, killing Earl was killed him. Harold Earl’s that but think not Stacy independent requirement for was deliberate. is an of Denise prejudice finding that a criminal defendant’s consti- Affirmed. right to effective assistance of tutional been violated. has Strickland counsel CUDAHY, Judge, concurring. If Washington, supra, 104 S.Ct. at 2064. agree I not that the failure of the testified, they not officers had testify police preju- not officers to made Earl had no have testified that me dicial. The seems to to have threats; testified, rather, they would have removing crucial reasonable doubt life, rather than that was conducting intent in about the defendant’s threatened; Stacy’s, Earl had Denise Stacy.1 his altercation with Denise I am this would not the circumstance however, that persuaded, this failure to Earl went have made a critical difference. from testify did not result unconstitutional- wasn’t there. house. She wife’s ly ineffective assistance of counsel but Stacy was his was. She wife’s rather from series of misadventures re- repeatedly her and fe- friend. He stabbed majority puts it, lating part, as the rociously. that the fact that Bear mind “the somewhat erratic conduct of kill spot her would he decided on I therefore concur in much of trial.” murder, first-degree *5 guilt of affect his analysis provided majority as weak, and that psychiatric evidence was his in the well as result. was self-defense. That his defense defense, part uncorrob- because was implausible, would not have

orated proving that he

been bolstered Stacy had not threatened —but It is true that after his wife. STEINLE, Jr., Roland J. retiring jury asked the to deliberate Plaintiff-Appellant, on first- repeat the instructions murder, second-degree but we jury’s verdict would think the Robert W. WARREN and Herbert they provided followed different — Krusche, Defendants-Appellees. Nancy Earl had not judge’s instructions—if 84-1910, Nos. 84-2570. permitted testify, or if Harold Earl Appeals, United States Court of permitted to rebut her had been Seventh Circuit. testimony by The the two officers. with guilt first-degree mur- of Earl’s evidence Argued April 24, 1985. overwhelming. In sec- was Wisconsin der Decided June 1985. here) (so ond-degree far as relevant murder being “by causing the death of human imminently dangerous to another mind, regardless evincing depraved life.” 940.- human Wis.Crim.Code § psychologist, a series tests majority suggests that administered The the evidence 1. Intelligence including overwhelming. Wechsler Adult against so. Earl was Not No Scale, that Earl’s present he determined from which were when the scuffle be- witnesses Further, fifty-five, IQ” which classified Stacy “full scale was occurred. Dr. tween Earl range severely pathol- and in the Wagner, experienced him as retarded forensic Harold ogist, that, deficiency. Mc- mental Dr. upon border and severe review of testified based probable it was surrounding Stacy’s Donald concluded that death well circumstances inflicted, unplanned and committed Earl’s act impulse. act nature wounds McDonald, a clinical was “not intended." Dr.