Michael D. Overstree v. Bill Wilson

courtroom free symbols implying sup- Before EASTERBROOK, Judge, Chief port for the juror victim. No could have WOOD, BAUER and Circuit Judges. doubted that Eckart had friends and fami- EASTERBROOK, Chief Judge. ly who her mourned death. That’s the message the pictures A jury conveyed, concluded and in Michael Over- post-conviction street kidnapped, proceedings raped, the state trial murdered judge found Kelly that Overstreet Eckart. had not The estab- recommended prejudice. lished that he be executed for offenses, these the state judge imposed a death sentence. His second contention is that his The Supreme Court of Indiana affirmed lawyers failed to convey “effectively” or sentence, convictions and “meaningfully” prosecutor’s offer of a (2003), N.E.2d 1140 and affirmed an order plea bargain. Overstreet contends that denying petition his post-conviction re- prosecutor orally proposed a sentence lief, 877 N.E.2d 144 is- of life in prison without possibility pa sues in this collateral attack under 28 — role. Frye, Missouri v. U.S.-, U.S.C. 2254 concern the penalty. The 1399, 1408-10, S.Ct. district court denied Overstreet’s petition. (2012),holds that failure to communicate a 2011 WL 2011 U.S. Dist. Lexis plea offer to the defendant deficient (N.D.Ind. 2011). 4,Mar. performance. lawyers did re- Overstreet contends that during him, lay the offer to and he turned it down. the penalty proceedings contends, made however, He that the communi- three errors that individually or collective cation was not effective because he was ly amount to ineffective assistance. having One a “break” at the time and supposed error is that counsel did not ask could appreciate signifi- offer’s judge trial require spectators who Frye cance. does not consider whether wore buttons or ribbons with pic- Eekart’s counsel furnish ineffective assistance herself, “effectively”; she convey plea judge offer failing to accepted guilty plea. deciding that counsel assume without we Similarly, Frye does not dis- must do so. process permits The due clause of oral offers proper treatment cuss judges accept pleas from guilty defen (the Frye stressed that offer Court dants who do not admit factual basis of material writing contained all them, charge against judge when assume, terms); again without decid- we adequate has an for find nonetheless basis duty to that counsel’s communicate ing, ing defendant committed the bargains to their clients covers potential Alford, crime. North Carolina v. 400 See term-complete. are they before oral offers 25, 160, 91 U.S. S.Ct. 27 L.Ed.2d 162 (1970). But that the Court added states problems. has The Overstreet mental required accept pleas, are not to such id. in the leaves psychiatric evidence record 160, 11, at n. 91 38 & S.Ct. and Indiana has on occasions Over- little doubt that some pleas. chosen to forbid See Carter ability have would lacked the street Alford (Ind. State, 126, 739 N.E.2d 128-29 rationally. The legal his situation evaluate 2000). who to plead A defendant wants men- mixed about Overstreet’s evidence is guilty in Indiana must admit the factual lawyers presented at the time his tal state plea open basis court. 2011 his consideration. See the offer for having any memory night denies *7-10, Dist. Lexis 836800 at 2011 U.S. WL repeated when Eckart was killed and said judge at con- 22175 *21-26. The district lawyers ly and to the trial judge— the of- that Overstreet understood cluded —to plead guilty that could not when he he did intelligently it with his fer discussed guilty. why not himself to be This know sister; says judge that the judge she the state declared that would mistaken, we not After need decide. accepted guilty had plea not have a Over- on conducting six-day hearing a Over- attempted relief, street to enter one. request collateral street’s trial judge who had conducted Overstreet’s that a He contends Carter allows imposed the sentence issued a death judge accept guilty plea in Indiana to petition. lengthy denying his The opinion amnesiac; according from an Over- at of her decision judge page stated 82 street, pleas only Indiana blocks Alford any by did not shortcoming that counsel affirmatively when the defendant denies because, if prejudice cause Overstreet had culpability. § But a writ 2254 under can trial, attempted plead guilty she on a court’s belief be based federal rejected Frye plea. holds would have judiciary that the state misunderstands that, from fail- prejudice to show Corcoran, See, e.g., state law. Wilson v. offer, plea convey ure to “defendants — U.S.-, 13, 131 S.Ct. 178 L.Ed.2d probability have who shown reasonable (2010). judge 276 The state trial has told plea earlier accepted would done, why, us what she would that, if prosecu- offer must also show attempted plead guilty; had Overstreet if had to cancel it or tion the discretion given Frye’s prejudice, definition of court had the discretion to refuse to trial dispositive. finding is it, accept probability is a there reasonable argument third line of prosecution neither the nor the trial court Oversteet’s present being offer from is that his fell short when prevented would have during ing mitigating evidence the sen accepted implemented.” 132 S.Ct. at Given 28 finding, by tencing hearing. the trial U.S.C. 1410. Here we have a 408 See, 2254(d), uphill Diagnostic is an battle. ciation’s and Statistical Man- — Pinholster, -, Disorders, ual Cullen v. U.S. Mental while schizo-

e.g., phrenia is a 1388, 1401-11, more serious Axis “clinical 131 S.Ct. 179 L.Ed.2d 557 — (2011); Richter, The Supreme disorder”. Court Indiana Harrington v. U.S. jurors doubted would 770, have seen much -, 131 L.Ed.2d 624 S.Ct. difference, “it all writing: is not at clear (2011); Allen, 290, Wood v. lay jury necessarily appreci- that a (2010); v.Wong S.Ct. ate the subtle and nuanced distinction be- Belmontes, 558 U.S. tween a schizoaffective disorder and a Supreme L.Ed.2d 328 Court disorder.” of Indiana did contradict law es replies N.E.2d 156. Overstreet Court; Supreme tablished cited Supreme this shows that Court of accurately Strickland and summarized its evidence, Indiana did not understand the And, holding. court, like the district we Smith would have testified to judiciary do not think that the state acted schizophrenia. appellate judges, If five unreasonably holding not briefing, after full see didn’t the difference within the was Engum’s approach Smith’s, between of competence, bounds but also that Over- unlikely lay jury is that a would have prejudice street did not show from any But wrong done so. Overstreet is about shortcoming. appreciation the state court’s the evi- the Counsel retained services of three dence; related, ibid., expressly the court professionals: Engum, mental-health Eric that to Smith “schizoaffective a disorder is Smith, a neuropsychologist; Robert a clini- schizophrenia depres- combination Coons, cal psychologist; and Philip a fo- sion.” psychiatrist. rensic Engum testified at lawyers this court harp Overstreet’s sentencing hearing that Overstreet had on the theme that an Axis I “clinical disor- “schizotypal disorder”, a personality der” is worse than an Axis II “personality jury “among he told the was the most disorder” and surely assert difference severe of personality He disorders.” would jury. have affected the But it was also testified that had a “se- not clear the state see judiciary, verely personality disturbed structure”. us, N.E.2d at not and is clear to that post-conviction Smith testified in the hear- psychiatric terminology juries. affects that, ing called, had he been he would have point jury a showing that the defen- testified that a Overstreet had “schizoaf- dant a has mental disorder tois reduce disorder”, fective which Smith defined as a blameworthiness, juries because are more schizophrenia combination of and depres- think likely capital punishment appro- Coons, sion. It is unclear whether had he priate a morally when is respon- defendant testified at sentencing hearing, Barnett, sible. Stanley See Michelle E. L. agreed Engum, Smith, have or Davis, & Brodsky Manning Cali When offered third view. Mitigation Evidence Makes a Difference: Overstreet contends that counsel should Psychological Mitigating Evi- Effects of have called Engum, Smith as well as dence Sentencing Capital on Decisions in to impress better on jury Trials, his mental 22 Behavioral Sciences the & Law problems, or should have called Smith 751 lawyers put on alone, because personality dis- that evidence he has serious mental ab- just is order a “personality disorder” normality on and contended that he is not Axis II of Psychiatric the American blameworthy. agreed Asso- Smith “significantly law” just im- symptoms; quirements about paired”. his labels. Whether attached different “schizotypal is called

condition get finding To around the state court’s depression schizophrenia plus disorder” jurors would not have probably that seen mitigat- change nature of this does Engum’s and much difference between strategy. ing assessments, Overstreet needs lawyers’ say-so. than his current post-conviction testified Smith post-con- trial at the His testified not close to hearing hearing they put Engum but viction Engum’s; he the difference between views not Smith on the stand two reasons: Engum, Axis II as substantial. Axis and first, Engum saw have a psy- contrast, very testified that there is episode chotic and could tell the what diagnoses. between the little difference happened, while Smith had not seen such (He dividing “if there is explained second, episode; given the decision to an nonpsycho- ... psychosis and line between Engum testify, counsel believed sis, schizotypal nonpsychotic on the imprudent put been Smith it would have close, you’re quite side. You’re stand, jurors then the on there.”) judiciary was entitled The state pro- would have learned that mental-health Engum’s view and to think that accept disagreed fessionals about Overstreet’s jurors was not what would have affected might condition discounted symptoms formal classification but the both men. reported if there was the two —and way in the two described difference the lawyers pooh-pooh Overstreet’s current it is hard to dis- symptoms, Overstreet’s that these rationales and insist their cern. schizophrenia testimony about view—that schizotypal person- beats about Hallucinations, example, among are for disorder, ality neuropsycholo- even from a II Axis I and Axis the distinctions between gist undergo who has seen the defendant is halluci- yet the line not some disorders — only ap- psychotic episode sensible —is none, but frequency. nations versus their however, us, tells that proach. Strickland Engum diagnosed Overstreet not by trial counsel cannot be tactical decisions in- personality disorder that ineffective differ- declared (in distortions” Over- “perceptual cludes lawyers set of would have handled ent case, “seeing shadows out of street’s differently. trial things coun- testified) eyes,” Engum corner his but of choice, quite unlike sel made an informed with occasional breakdowns also Smith, in Wiggins the situation Engum Engum the one witnessed. such as 2527, probably had that stresses caused testified (2003), where had not done an counsel episodes to experience Overstreet similar lawyers investigation; Overstreet’s decid- episodes psychosis in the Periodic past. after proceed only receiving how to ed (and Engum so testi- entail hallucinations professionals. of three mental-health views fied); diagnosed Overstreet likewise Smith choices, hal- To undermine trial counsel’s periodic with a that involves disorder difference, judiciary’s findings about is a but and state lucinations. This more needs than prejudice, that marks the line the sort of difference lawyers’ showing talk. He needs evidence responsibility. Engum testified of moral lawyer would have that no reasonable emphatically that he viewed Overstreet’s witness, and ability thought Engum re- the better to “conform conduct ousness, Distance, jurors likely that would be less to recom- and Social 89 Am. J. for a mend death defendant who has Pub. Health But these both schizophrenia of these studies do concern the behavior —and propositions strongly supported are so jurors being by testimony; after informed decision contrary by judiciary the state they public take untutored beliefs giv- is But brief unreasonable. does not than evaluating laypersons’ ens rather re- evidence; point such it relies entire- sponses to evidence. So contest boils ly on If current counsel’s certitude. we by down to the beliefs held must between the choose belief the state lawyers, current versus the beliefs held judiciary Smith lawyers judiciary. his trial and Indiana’s pretty impression have left much the same AEDPA, Under Strickland and the trial jurors, on and the belief Over- judiciary counsel and the state pre- must lawyers street’s current that the two would vail. materially effect, have had a different both has arguments some other 2254(d) 2254(e) § § tell us that about presented mitigation, the evidence judiciary federal prefer must the conclu- pale beside the one we have judiciary. sions of the state It takes clear require addressed and do not discussion. convincing upset evidence to a state finding, 2254(e)(1), court’s factual see Affirmed. beliefs, lawyers’ however confident be, and sincere counsel may are not “evi- WOOD, Judge, Circuit dissenting. dence” at all. No one who has followed the law post-conviction hearing, state federal post-conviction pris- relief state Overstreet’s new not present did oners since when the Anti-Terrorism evidence an expert jury psycholo- from (AEDPA) Penalty and Effective Death Act gy, statistician, or a capital juries are effect, went into the impression under favorably disposed toward defen- a readily this is remedy. available dants whose condition is called schizoaffec- Indeed, question the real is whether its tive than disorder when the same condition promise anything is than an illusion. is called personality disorder. Success in obtaining relief under 28 U.S.C. briefs do not cite studies § 2254 sometimes just seems as difficult as in the psychological medical or literature quest the rich man’s to enter the Kingdom about psychiatric how different terms af- Heaven, of compared in the Bible to juries. fect We oral argument asked at passing camel’s through eye of a nee- whether counsel knew a study; of such dle. See Matthew 19:23-24. The answer number was no. We looked could not of cases in years find last three one. A few studies find that the man Supreme has Court has impressions street different overturned of a federal psychiatric appeals erroneously different court of conditions. See Mel- ody Sadler, granting S. relief Elizabeth L. under 28 is Meagor & U.S.C. 2254 indeed, Kimberly Kaye, legion; E. Stereotypes Court has Mental often (though always) Disorders in Competence chosen handle these Differ Warmth, basis, 74 summary per Social Science cases on a & Medicine 915 curiam (2012); Link, Phelan, See, Matthews, G. opinions. Bruce C. e.g., Jo Mi- v. Parker — Bresnahan, U.S.-, 2148, chaelene Ann Stueve & Bern- 132 S.Ct. 183 L.Ed.2d Pescosolido, (2012) ice (mem.) A. Public Conceptions (reversing Circuit); 32 6th — Labels, Causes, Mental Johnson, Illness: Danger- -, Coleman v. U.S. 132

411 (2010) (mem.) (11th (2012) (revers- denied relief Circuit 2060, 978 182 L.Ed.2d S.Ct. — Lambert, reverses); v. Holland v. Circuit); Wetzel Supreme Court ing 3d — Florida, 1195, U.S.-, 2549, U.S.-, L.Ed.2d 35 182 130 S.Ct. 177 132 S.Ct. Har- Circuit); (2012) (mem.) (2010) (reversing 3d (Supreme Court re- L.Ed.2d 130 — Cross, —, 490, 132 dy v. U.S. S.Ct. holding petition verses 11th Circuit — (2011) (mem.) (reversing Upton, L.Ed.2d 468 v. untimely); 181 Jefferson — Dixon, Circuit); Bobby v. U.S. 2217, 7th -, 130 S.Ct. 176 L.Ed.2d U.S. (2011) 26, -, L.Ed.2d 328 181 (mem.) 132 S.Ct. (2010) 11th (rejecting Circuit’s 1032 v. Circuit); Cavazos (mem.) (reversing 6th relief). decisions con- Important denial of — Smith, 2, -, 132 S.Ct. 181 U.S. ruling in favor of the struing AEDPA (2011) (mem.) (reversing 9th 311 L.Ed.2d Quarterman, Panetti v. petitioner, such as — Pinholster, Cullen v. Circuit); U.S. 2842, 930, 127 S.Ct. 168 L.Ed.2d 551 U.S. 1388, -, 179 L.Ed.2d 557 131 S.Ct. (2007) executed), (competency to be 662 Circuit); Felkner v. (2011) (reversing 9th Smith, 510, 123 Wiggins v. 539 U.S. S.Ct. — U.S.-, Jackson, 1305, 179 131 S.Ct. (effectiveness (2003) 2527, 471 156 L.Ed.2d (mem.) (2011) (reversing 9th L.Ed.2d 374 Taylor, v. counsel), and Williams 529 — Moore, U.S.-, Circuit); Premo v. 1495, 362, 120 S.Ct. U.S. (re (2011) 178 L.Ed.2d 131 S.Ct. (effectiveness (2000) counsel), reinforce v. Rich Harrington Circuit); versing 9th point. — ter, --, 131 S.Ct. us, petitioner In the ease before Michael (2011) Circuit); (reversing 9th L.Ed.2d — pursuing a collateral attack U.S.-, Thompkins, Berghuis v. against § 2254 the convic- under 28 U.S.C. (2010) (re- 2250, 176 L.Ed.2d 1098 S.Ct. — resulting tion and the death sentence he Lett, v. Circuit); Renico versing 6th Kelly for his brutal murder of received U.S.-, 1855, 176 L.Ed.2d 678 130 S.Ct. general, Eckart. he asserts that he (2010) Circuit); and Thaler (reversing 6th — constitutionally received ineffective assis- U.S.-, Haynes, (2010) (mem.) counsel. He focuses on three (reversing tance of L.Ed.2d 1003 Circuit). counsel let him particular instances where 5th down, relating handling the first to their know that the Court does not But we alleged plea bargain, an the second relat- is an suggest mean to the statute handling to the trial court’s of the ing vessel, occasionally rules empty courtroom, in the and the third spectators may go for corpus petition that a habeas sentencing pro- relating exclusively ward, permits at least a decision colleagues’ ceeding. agree my I dis- See, e.g., granting relief to stand. Lafler — I arguments, of the first two but position 1376, Cooper, U.S.-, v. 132 S.Ct. handling to their of the cannot subscribe (2012) (upholding 6th Cir 182 L.Ed.2d 398 ante at 407-10. my Opinion, See third. remanding on finding cuit’s of violation but — view, something far more serious and sin- U.S.-, Milyard, v.Wood remedy); (2012) simple ister than a semantic debate over 1826, L.Ed.2d 733 132 S.Ct. mental illness should be what Overstreet’s (reversing peti 10th decision that Circuit — Lawhorn, sentencing hearing. labeled tainted his untimely); Allen v. tion was has led both the state courts 562, This error U.S.-, L.Ed.2d 131 S.Ct. (2010) (mem.) my colleagues ap- to an unreasonable (denying certiorari over standard of plication of the well known the 11th three dissents case where Cir 668, Hall, Washington, v. 466 U.S. 558 Strickland relief); Wellons granted cuit 80 L.Ed.2d 104 S.Ct. behavior, literally will misapprehension disorganized speech, This grossly I consequences disorganized fatal Overstreet. witnessing behavior. After respectfully this, therefore dissent. Dr. changed primary diag- schizophrenia

nosis from a schizotypal personality disorder. my colleagues acknowledge pro- As in a engaged defense also a second ex- understatement, found “Overstreet has Smith, pert, Dr. Robert who is a clinical problems.” mental Ante at 407. It was psychologist. diagnosed He sentencing stage therefore critical at the disorder, with schizoaffective which is a place jury his murder trial to an schizophrenia combination of depres- picture severity accurate of the of his con- sion; addition, he identified alcohol de- dition. information This about Over- pendence problem. as a Dr. Smith later problems street’s mental was essential to testified that his was not even enable the punishment to decide what “pretty close” to that of Dr. Engum. PCR proper Every lawyer was for his offense. Engum specifically 517. Dr. did not case, involved in attorney from his first diagnose Overstreet with the disease Dickinson), (Roy recognized onward had schizophrenia. Finally, a third expert that Overstreet’s mental condition had to defense, by hired psychiatrist Dr. Phil- be assessed. Dickinson filed a notice of Coons, ip diagnosed Overstreet with disso- insanity requested a psychiatric evalu- ciative disorder and ation. Jeffrey Successor counsel Bald win disorder. Dr. Coons was unaware at the Nugent and Peter sought funds for a miti- time that Smith had also evaluated Over- gation specialist investigate street. He later said that had he known of life. person appointed, Such a was but his the underlying information in Smith’s re- task by was thwarted inability port as well as information in other crimes, to recall virtually sources, he too would diagnosed anything Instead, about his childhood. Overstreet with schizophrenia. the disease perseverated questions In order to understand what these com- reality about the of the interview and what peting diagnoses mean, really it is neces- time; happening was at that he sometimes sary to turn for moment to the Diag- recognize person unable to nostic and Statistical Manual Mental whom speaking. he was (DSM-IV-TR), Disorders pub- trial, Three months before counsel asked lished Psychiatric American Asso- for and received engage funds to a mental ciation. The widely recognized DSM is health expert. They found Dr. Eric En- the authoritative source for information gum, a neuropsychologist. Dr. Engum di- about various mental conditions. It uses agnosed Overstreet as “a relatively high system multiaxial for assessments. Id. functioning and schizophren- well-defended at 27. The axes are as follows: ic, paranoid type.” Tr. at 803. He recom- Axis I: Clinical Disorders mended an assessment psychiatrist “a expertise disorders, with in psychotic espe- Other May Conditions That Be a Fo- cially schizophrenia.” Id. at 804. One cus of Clinical Attention trial, month before the Overstreet dis- Personality Axis II: Disorders psychotic solved into a state while he was Mental Retardation presence in the lawyer of both his and Dr. Engum. engaging He was in delusional Axis III: General Medical Conditions Psychosocial page and Environmen- with the various IV: DSM-IV-TR Axis in the subtypes set forth DSM codes tal Problems (beginning earlier mentioned with DSM- Function- Global Assessment of Axis V: 295.30). Notably, IV-TR the DSM ing that persons suffering stresses from purposes critical our The distinction Id. or Schizophrenia Schizoaffective disorder I,Axis which addresses the one between is persistent severe and disorders, II, and Axis which ad- “clinical” than symptoms Schizotypal do those This is “personality” disorders. dresses Personality Disorder. id. at 699-700 See terminology. Schizo- not a mere matter of (“Schizotypal Personality Disorder can be are under disorders classified phrenic Disorder, distinguished from Delusional 295.20, 295.30, 295.10, 295.90, and codes Schizophrenia, and Mood Disorder Id. The introduction 295.60. 303. Psychotic Features because these disor- explains that the disorders this section aby are all characterized of period ders disorder, schizophreniform (schizophrenia, persistent psychotic symptoms (e.g., delu- others) disorder, and a few schizoaffective hallucinations).”) and sions psychotic symptoms promi- as a “include of Id. at aspect presentation.” nent their light why This brief sheds on discussion “psychotic” The term refers to “delu- experts themselves hallucinations, sions, any prominent disor- recognized the critical case nature of speech, disorganized or cataton- ganized Engum’s diagnosis distinction between Dr. manual Id. The later notes ic behavior.” (about schizotypal personality of a symptoms of “[t]he characteristic sentencing) heard at and Dr. range cognitive Schizophrenia involve of of a schizoaffective disor- include dysfunctions emotional and (about nothing, which it heard even der thinking, language perception, inferential though apparently the trial court had communication, monitoring, behavioral and report, truncated version of a without affect, fluency thought productivity and explanatory testimony). importance The speech, capacity, and hedonic volition and ap- of the distinction becomes even more drive, and Id. No attention.” at 299. parent when we look at the two elements symptom or suf- single necessary is either argument about ineffective ficient; instead, person display will deficient perform- assistance counsel: signs symptoms.” “constellation of and Id. Strickland, ance, prejudice. su- See Personality disorders, contrast, are pra. enduring pattern as “an described performance. Overstreet as- behaving

thinking, feeling, and that is rel- Deficient that his serts fell time.” atively stable over Id. at 688. minimum below constitutional when undoubtedly is some be- overlap There present failed to the full accu- counsel tween the Axis I clinical disorders and illness fami- picture rate his mental II the Axis disorders. Never- sentencing ly history jury. theless, through when one reads the dis- rejected argument, al- Disorder, state court Personality of Schizoid cussion explanation it for that 301.20, though offered no Per- Schizotypal DSM-IV-TR conclusion, 301.22, Disorder, choosing instead discuss sonality DSM-IV-TR prejudice. accepting Even fact that are condi- apparent that these distinct any- obligation say courts have no tions from the clinical disorder known state Richter, all, in see at Schizophrenia, general thing at at S.Ct. described in the court’s conclusion this case about Smith’s later certainly was in entirely arbitrary. plain English, and one must assume that he could have communicated as well My colleagues would have us understand jury. with the saying only lawyers Overstreet as that his they were ineffective because decided to majority, my view, The has either call Dr. Engum rather than Dr. Smith. misunderstood or mischaraeterized Over- fact, enough, that is bad since it left the argument. They say street’s that Over- sentencing jury with the idea that he was street “contends that counsel should have merely suffering enduring person- from an Engum, called Smith as well as the better disorder, ality rather than from a serious impress jury on the prob- mental psychotic illness. The ineffectiveness of lems.” Ante cannot find that that decision apparent Expert would be if argument Instead, Overstreet’s brief. A diagnosed had Defendant X epilep- emphasizes that counsel failed sy, while B Expert opined that X was to understand the distinction between Dr. merely exhibiting histrionic Ep- behavior. Engum’s Dr. and Smith’s diagnoses and ilepsy disease, is a recognized well and the compounded then by the error making an trier of fact job could not do its unless “present unreasonable decision to the vac- both opinions properly were before it. illating Smith, Engum rather than who Our case is no different: Dr. Smith diagnosed had Overstreet with a signifi- thought Overstreet suffering was from the cantly more severe illness.” Overstreet Axis I clinical disorder known as Next, Br. at 40. although opinion schizophrenia, Engum while Dr. thought correctly recognizes the argument problem was far less severe. But the Overstreet should have called Dr. Smith problem is even lawyers’ worse than the alone, 408, goes ante at on to state that failure to call Dr. they Smith: actually it would be reasonable for the state court factually entered into a stipula- inaccurate jurors assume that would not have tion that Drs. Engum Smith and had made by been affected “the formal classifica- (The diagnosis. the same majority opinion tion” of Overstreet’s disease. It also as- nothing has to say about problem.) serts that “if there was difference in And this characterization depend does not way the two described Overstreet’s on our research and interpretation of the symptoms, discern,” it is hard to ante at DSM. Engum Drs. Smith and agreed that 409. But the reason it is hard to discern is schizophrenia is a more diagnosis severe precisely lawyers because the than themselves schizotypal personality. Dr. Smith bring failed to out important differ- testified at the post-conviction state hear- ences. Overstreet is not ings not, arguing merely that his contrary to labels, about but about what majority’s here, those description even labels “pret- ty mean: schizophrenia close” Engum’s. to Dr. Dr. dis- also order jury diseases, testified —to the are two distinct schizophrenia dif- —that was distinct ferent symptoms presentations characterized severe symptoms, different severity. and he told levels of them that “quite was not trial there.” missed this critical differ- ence, state court seems to have assumed that the DSM-IV-TR spells out at jury length, would not have understood the and which should have been difference between the professional given two aware of the two diagnoses different opinions, but there is no evidence in the made at the time. There is no reason to record support prediction. Dr. think would not have difference, conflicting diagnoses. anyone if be confused had told this grasped Instead, told, court, they however, in were Overstreet’s brief this about it. them agreed all doctors that post-conviction that indicates that record inaccurately, disorder, had to Overstreet contains evidence from counsel the ef- was that this less severe they they memory why were told of they fect that had no Engum ju- Dr. told schizophrenia. than Engum chose to call Dr. and not Dr. not psychotic, that was rors Overstreet fill in part It is not our to Smith. blanks (he minimized not have hallucinations did record, give in the and so I would distortions”), and them as “perceptual weight. hypothesis no for not met the test the insan- would have subject of moving prej- Before on to the of his condition. Dr. ity defense because acknowledge I udice—which would be testimony would have been enough by pe- itself to defeat Overstreet’s respects. opposite in of these each tition, if it cannot be shown—I note that end, In the no choice but to con- see a the state court made no mention of num- clude that handled in ber additional deficiencies expert testimony sentencing they as performance. Counsel failed follow the did, they making not were a stra- because in prevailing professional guidelines effect decision, they igno- were tegic but is, at the time the trial —that not rant-they simply did understand the guideline ABA mandating that a defense Ignorance them. is the evidence before sentencing lawyer begin should investi- strategy. We thus have no antithesis of ABA gation immediately. Guidelines actions. col-My reason to to their defer Appointment Performance failing leagues criticize Overstreet for also Penalty Cases 11.8.3 Counsel Death showing that present evidence no rea- lawyers failed to start preferred Dr. lawyer might sonable process obtaining psychiatric evalua- Engum, but I do not read record that until months before tions few trial. At hear- way. post-conviction the state addition, they presented In no evidence to testimony that ings, presented why may not explain from very point addressed this two crimi- treatment, sought may not have com- experts, nal Johnson McDan- defense plied given, treatment he was in the state court iels. Johnson testified are though symptoms even those behaviors oversight about that Overstreet’s counsel’s illness. go along that with his mental This the two between doctors’ distinction utterly that were meant unable to diagnoses problem” “the crux of the was respond the state trial court when re- attorneys were under working because the failure peatedly get cited Overstreet’s your assumption “the false client has weight treatment to lessen the that she [the an two [Axis] of the gave mitigating impact to the illness. true, if you’re And that’s disorder].... fact, bring not even out the counsel did leading to believe this indi- everyone leading up that in fact the months from, vidual, that he suffers the disorder crime, prescribed Overstreet had been it nearly great as is.” PCR at 777. Paxil, drug may perversely have Lastly, my colleagues speculate that coun- aggravated symptoms. Dr. might rationally have chosen to call sel thought The district court Over- Dr. Engum Smith because instead like very case much the one street’s was Dr. who witnessed McBride, Overstreet, we considered Woods episode by further (7th Cir.2005), a closer that the F.3d 813 look they might have feared just why at shows Woods Overstreet’s case letter from Dr. in reports Smith which he (schizoaffective disorder) should succeed when that one failed. explain[ did “not Woods what witness ] explain not does it further. The sentencing said, have or any investigation order that diagnosis restates without uncovered, might would have that have led mentioning how it differs from that of Dr. to a different at sentence.” Id. fact, Engum. following language in “Really, claim Woods’s boils down to the appears the order to conflate opin- the two present contention that his counsel did not equivalents: ions and treat them as “Both enough mitigating evidence.” Id. at 826 Dr. diagnosed Smith and Dr. have (emphasis original). Overstreet’s case personality the Defendant with disorders. not be could more different. Overstreet is Dr. Smith has assessed the disorder as complaining generically that his coun- ‘schizo affective disorder’ and Dr. Engum present sel did not ” enough mitigating evi- ‘schizotypal as personality disorder.’ Tr. dence. pointing specific mitigat- He is 1300; at see Tr. at (making also same ing existence, evidence that was in that his mistake in hearing). court entirely This put counsel failed to jury, before the overlooks important difference re- that would have jury revealed viewed above between clinical expert least one Smith —believed —Dr. disorders and broader-range personality that Overstreet was suffering from a much disorders. Nothing severe mental illness. compels, Woods supports, even the out- Perhaps this error is what led the state my colleagues come have reached here. post-conviction court to decide not to re- weigh the mitigating evidence that counsel Prejudice. The state court gave three should presented against aggra- reasons for finding its that Overstreet was evidence, vating to see if there was a rea- prejudiced by performance. probability sonable would not First, it concluded that it was not clear imposed the death sentence if it had that a lay-jury would have understood the known about Dr. (or opinion Smith’s and its schizophrenia difference between schi- disorder) import. full duty That is the zoaffective that Strick- opposed as to a schi- zotypal imposes court, Williams, Second, land on a disorder. see court 397-98, noted that even though Dr. Smith U.S. at and the testify, did not Dr. Engum opined that state carry court failed to it out. To the Overstreet met the legal definition for mit- original extent that the gave trial court igation: suffering he was from an extreme psychiatric testimony any weight, mental disturbance and was unable to con- court unequivocally erred downplaying form Last, his conduct to the law. significance its for the reason that Over- court found that the trial court had consid- street had not sought treatment during the ered the report written of Dr. Smith. six leading up months to the crime. At point, one the court implied even address the point last first. Over- failure to seek treatment was an aggrava- street points out that the trial court did ting factor. This fundamentally not in fact misunder- consider Dr. full Smith’s written report, stands report Schizophren- because that Overstreet’s disease. was not My treatment, it. own ic people examination often fail to of the record seek indicates that later, this is accurate. Dr. Coons Despite the testified “because they trial court’s really statement it had Dr. don’t have insight into their illness.” report, record contains at 460. PCR added). (emphasis Tr. at The state’s prejudice court also found no The trial con- Dr. En- steps lawyer had taken did not mischaracterize believed, crime; actions, it testimony. Engum spoke these Dr. at gum’s ceal his It is finding responsibility. of high IQ, a supported length about Overstreet’s which cleaned out van that Overstreet true in of surprising light he found the crime scene after (a revisited the low levels of academic fact if the court had had But deed was done. willpower). he attributed to lack of it and had diagnosis full Dr. Smith’s presented he Even when seriously, likely it would taken it disorder, he mini- schizotypal personality on this evidence. weight placed different mized the seriousness of that condition. hallucinations and delusions people impression He left to follow the orders compulsions involved merely needy, saying that disorder are (a schizo- sign classic of severe of demons others, “They’re highly dependent upon compulsion might have af- This phrenia). affection, they attention and strongly need the crime his commission of fected either get very much they, don’t As up, to cover it both. or his efforts themselves, give very can’t much back.” testified, al- “The disorder is Dr. Coons Tr. at 5085. [though] hallucinations are ways present Dr. impression Engum The overall left at 525. intermittent.” PCR by changed was not his brief admission inflict- prejudice is the counsel Last testimony that he during his witnessed by use opting case ed on Overstreet’s experiencing psychotic epi- Nothing as its star witness. Dr. that people sode and his concession explain can this preparation but lack of schizotypal personality disorder can some- comes choice. The best evidence symptoms. experience psychotic times closing argument: from the state’s emphasis throughout His was that schizo- amazing thing Eng- about Dr. The most typal personality disorders fell on the if him for you ham is that take [sic] “nonpsychotic side” of disorders. Dr. face, says helps what he at his he testimony given would have Smith’s surprised hearing I’m after him State. jury opposite viewpoint. majority testify actually by that he was called great this difference is not so believes Engham Dr. Defense.... testified responsibili- the line of moral “mark[] average intelli- had above Defendant ty.” Ante at 409. But we do not know insane, gence, he was not he was not responsibility what level of moral multiple personalities schizophrenic, no assigned would had here, psychotic, he going on was not presented been with accurate information might psychotic epi- have had said he I severity about the of his condition. do Engham ... but Dr. said that sodes majority’s certainty not share the that it faking. could have all been He [Over- difference, especially would have made no Eng- Dr. was characterized street] entirety in of Dr. light Engum’s having schizotypal personality ham as testimony, consistently minimized asked what that means disorder. When illness, in severity of Overstreet’s con- terms, well, layman’s he said 40 or 50 post- Dn at the trast to years ago they would have called this hearing. just common indicated, conviction Not A hermit. He guy hermit. sense, research, extreme, before, but also medical demon- about as we talked extreme, lay differently react persons on a strates that less than six to seven See, types of mental illnesses. of one to ten. different scale al., e.g., Melody Stereotypes igating jury. Sadler et evidence before such a See 2527; Competence Wiggins, Mental Disorders Differ (2012) Williams, Warmth, Sci. & Med. 529 U.S. at Soc. S.Ct. stereotypes of (assessing lay prejudiced op- various men Overstreet was when that concluding portunity slipped away tal illnesses and stereo because of his types perceptions of those illnesses counsels’ decisions. label); diagnostic differed based on the grant petition for a writ of al., Conceptions Link Public Bruce et corpus habeas limited to the im- sentence Labels, Causes, Danger

Mental Illness: I posed, give oppor- and would the state an ousness, Distance, Social 89 Am. J. tunity to resentencing proceedings conduct (1999) (“The 1328,1330 public Pub. Health period within reasonable of time. makes clear distinctions between the disor respectfully therefore dissent. causes.”). ders terms of their It does not matter these studies were not jurors. specifically

conducted with There (who jurors

is no reason think that after too), lay

all are persons would not also differently

react to more and less severe

mental illnesses. There is a reasonable LIU, Plaintiff-Appellant, WENFANG

probability presenting Dr. that Overstreet had persistent psychotic severe and disorder Timothy MUND, Defendant-Appellee. changed the outcome of the life-and-death decision it had to make. No. 11-1453.

[*] ^{[*] [*]} United States Court of Appeals, court, my district and now col- Seventh Circuit. leagues, have concluded that this record Argued June 2012. does not show that the decision of the Supreme July Decided 2012. objectively Court of Indiana was unreasonable, as must be in order to July As Amended warrant grant petition under respect, 2254. With I cannot

agree with them. The explana- three

tions that supreme gave state court unreasonable,

were were

based on inaccurate assumptions. factual

At problem the heart of the lies counsel’s

deficient failing put be- sentencing jury

fore the the available evi- showing

dence the seriousness of Over-

street’s mental A capital jury illness.

cannot make its decision with only half of it, story worse, objec-

tively Indeed, inaccurate information.

Supreme Court has stressed that the de-

fendant must be able to put all of his mit-

Case Details

Case Name: Michael D. Overstree v. Bill Wilson

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 11, 2012

Citation: 686 F.3d 404

Docket Number: 11-2276

Court Abbreviation: 7th Cir.