Walter L. Thomas v. Jerry Gilmore, Warden, Pontiac Correctional Center
144 F.3d 513
7th Cir.
1998
Check Treatment

*1 PETITION FOR GRANTED. REVIEW

The BIA s order AFFIRMED IN PART

and VACATED IN PART. The RE- case is proceed-

MANDED to BIA for further

ings. THOMAS, L.

Walter Petitioner-

Appellant,

Jerry GILMORE, Warden, Pontiac Center, Respondent-

Correctional

Appellee.

No. 97-1854. Appeals,

United States Court of

Seventh Circuit.

Argued Feb. 1998. May Decided 1998. g

Rehearing Suggestion for Rehearin

En Banc Denied June

514 into, he broken and which she

which had perfume. large quantity of had stored a (who previous admitted to his boss Thomas burglaries garage) stabbed the vic- from her, times, killing poured per- 12 then tim body, garage, fume over her floor parked garage, the car and perfume in an lit the effort obliterate and garage of crime. The the traces complex gone condominium exploded. flames the car After the up in had routine, murder, resumed his normal nothing happened. had acting as He dis- weapon and cleaned his carded murder sweater, and, arrested, at when blood-stained eventually guilt, though he first denied his confessed. the murder was committed in

Because committing felony, another course eligible for the under Illinois law death /9-1(a)(6), formerly 5 Ill. penalty. 720 ILCS 38, para. 9-1. At his Rev.Stat.1985 ch. sen tencing hearing the heard evidence of Gardner, & (argued), Latham Carton Mark 720 aggravating mitigating and factors. both Hartman, IL, Chicago, Marshall Douglas, J. /9—1(c),(g). prosecution empha 5 ILCS IL, Center, Chicago, Alan Capital Resource history. Thomas’s criminal sized Freedman, Justice, Center for M. Midwest prior of six assaults on had been convicted IL, Petitioner-Appellant. Chicago, for women, attempts primarily involving sexually knifepoint to rob and assault them. George Moutoussamy (argued), Penelope raped cases In one these he woman General, Attorney Appeals Criminal Office of (The rape times also stabbed her. three and Division, Chicago, IL, Respondent-Appel- for sentencing hearing.) at the victim testified lee. carjacked woman and at In another he POSNER, Judge, get Chief and knifepoint Before her to drive to a tried . RIPPLE, Judges. area; deliberately and Circuit CUMMINGS collided with secluded and, thrust, eluding car his knife another POSNER, Judge. Chief (She testified.) Thomas had fled. leg. one of his teachers with a table struck Illinois Thomas was convicted in an Walter other his murder, He had committed and three burglary, in 1987 and state court juvenile. he was a arson, offenses when When aggravated sentenced and was murder, he remedies, questioned connection with exhausting his After state death.. joke. previous offenses as a Thomas, dismissed his People v. 137 Ill.2d see for He no remorse either those (1990); exhibited People v. 561 N.E.2d 57 Ill.Dec. offenses, which he attributed to his desire to Thomas, 164 Ill.2d 207 Ill.Dec. manhood, for (1995), prove his or the murder. sought federal habeas N.E.2d (N.D.Ill.1996); lost, corpus; F.Supp. mitigation—a preparing case principal challenge His is to appeals. and year preparation begun a before the sentenc- sentencing lawyer of his adequacy ing hearing—Thomas’s interviewed begin hearing, we there. mother, Thomas, girl- live-in former friend, 31-year- friends relatives. The victim discovered any cleaning that she asked them whether he histo- employee old service used, problems, all of them stealing perfume garage, ry from her quired including that he did. She Thomas denied conduct a reasonable prepared a narra- psychologist possibilities hired a into the proving mitigating (so factors, but did not far tive of Thomas’s life Washington, 466 U.S. Strickland recall) anyone can that he recommend under- 2066-67, 104 S.Ct. 80 L.Ed.2d *3 go lawyer a examination. The (1984); Thieret, 351, 674 Kubat v. 867 F.2d subpoena prison did not Thomas’s or school (7th Cir.1989); Cargill 369 Turpin, v. 120 until, not in records. That was done the 1366, (11th Cir.1997); F.3d 1385 Porter v. postconviction proceedings, new counsel for (11th 554, Singletary, Cir.1994), 14 F.3d 557 mitigation expert. Thomas hired another might persuade factors that the not to searched, This time the records were and impose penalty. the death A reasonable in they average showed that was of low not, vestigation however, is (his I.Q. in intelligence range of 81 to that lawyer the best criminal defense 85), disturbed, emotionally that he was that world, blessed not with unlimited time “paranoid he had and a “schizoid tendencies” and resources but inestimable personality,” learning and that he had a dis- benefit of hindsight, would conduct. Kokora ability—and might organic brain have dam- (7th Gilmore, 692, leis v. 131 F.3d 696 Cir. age—as a result scarlet had fever 1997); Gramley, Stewart v. 74 F.3d 135 youth. two falls as Armed these (7th Cir.1996); v. Waters 46 F.3d records, counsel Thomas’s new reinterviewed (11th Cir.1995); 1514 Single White v. family Thomas’s and friends and learned that (11th Cir.1992). tary, 972 F.2d 1220 him siblings his mother had beaten and his they with an extension cord when were chil- lawyer It is for a place reasonable to dren, alcoholic, that his father had been client, a certain reliance on his so that if the parents fought that his with each other client family and his and friends throw the in front of the children. lawyer scent, by off the here denying the in presented mitigation The evidence psychological problems existence of sentencing hearing consisted of testimo- might provided have theory an alternative ny Thomas’s and relatives friends that he mitigation, lawyer cannot be faulted for good person was a that the murder was failing go path to down thus closed off. inexplicable deviation from his normal supra, Strickland v. Washington, U.S. girlfriend behavior. His former testified that 2066-67, 2070-71; 104 S.Ct. at Ko years she had lived with him for four or five Gilmore, 697; supra, koraleis v. 131 F.3d at and he had never been violent to her or her supra, 135; Gramley, Stewart v. F.3d daughters, and that the Walter Thomas Delo, LaRette v. Cir. (and whom continuing she knew to visit 1995); Lockhart, Whitmore F.3d prison) in could not have committed the mur- (8th Cir.1993). lawyer was Thomas’s led to der or other crimes Thomas had com- person believe that normal mitted. The other witnesses defense testified family, from a warm close-knit a man who in similar vein. His mother testified that a violent, a'steady job, held was not and whose that, police officer had her if told crimes were aberrant therefore and did not (who murder) committing denied irredeemably mark him as evil. His criminal death, confess he would be not sentenced however, history, profile drew a sexual part mitigation and this was the testi- predator, and sex criminals are often emo mony lawyer emphasized in tionally people. It would disturbed have closing argument. easy lawyer subpoena been for Thomas’s prison and school records and to submit argues lawyer’s that his trial by psychiatrist. them for evaluation subpoena prison Since failure to and school records, powerful— the “nice evidence was not which would have revealed serious lawyer placed emphasis herself little on it problems, demonstrated that lawyer provide closing in her argument, emphasizing failed to him with instead even representation. minimally competent alleged the state’s promise Thomas’s case, death defendant’s is re- mother he confessed he would be up profession- yer alterna- failed to come to minimum to find an spared—the incentive felt great. subpoenaing have al the records should standards tive of defense been line particular this case. circumstances of read as brief be Thomas’s up Even if she fail to come to the mini- did per rule that lay down se asking us strong argument mum—and can made always, lawyers must or capital defendants’ good mitigat- given the absence of sex all which at least in cases evidence, ing posi- in her a reasonable have, (may murder been an element subpoenaed tion the insti- would indeed evidence, even after the sec there no has tutional records—Thomas not succeeded investigation, of a sexual ele mitigation ond prejudiced proving that murder, of Thom unlike the case ment in the lawyer’s right failure. assis- effective crimes), subpoena all available previous as’s *4 presupposes if counsel tance of counsel that be a Such rule would institutional records. made, competent, it would have to been path that to long step leads down -the likelihood, a substantial difference in some protocol rigid that laying down courts’ the outcome. Therefore defendant must “the. they if lawyers must follow criminal defense probability that is a show there reasonable escape being ineffective. are to later deemed errors, unprofessional for but counsel’s rule, many It a new while would proceeding have the result been need not hold that defense counsel cases supra, Washington, v. different.” Strickland circumstances) present (depending on the 694, 466 at 104 S.Ct. at 2068. See also U.S. all, e.g., any mitigation Preston v. evidence Cooke, (7th Liegakos 1381, v. F.3d 1387 106 (8th Cir.1996); 596, Delo, 100 603 Ma F.3d Cir.1997); States, David v. United 134 F.3d (11th 1295, 1300 Singletary, rek 62 F.3d v. Cir.1998). 470, (1st 477-78 Counsel cannot Cir.1995); Singletary, supra, v. 14 Porter confidently if it is be deemed ineffectual un- 557, any F.3d cannot find case that we performance likely that a better would actu- particular follow a holds that counsel must ally helped his client. possibilities for ob investigating line in with, is taining The usual view that begin such evidence. To This such ease. of ineffective assistance of possible strategies, assessment two the “nice strate cases, depends, barring extreme on gy “psycho” strategy counsel failed particular of the case. any circumstances us which Thomas’s current counsel tells 343, States, E.g., Payne F.3d v. United 78 competent preferred, would have Cir.1996). (8th supposed combined; are not 348 We could not have been was ei corpus proceeding grant in habeas argument relief At Thomas’s current law ther/or. Lane, Teague rule. v. 489 yer, split the basis of new equating “schizoid” to 288, 1060, 109 103 L.Ed.2d 334 personality—when actually U.S. S.Ct. what the term (7th (1989); Gacy Page, v. 24 F.3d 887 Cir. having difficulty expressing means is emo (1st Duval, 1994); 1, 4-5 relationships, Curtis v. 124 F.3d forming American tions Lockhart, Cir.1997); 676, Association, v. F.3d Psychiatric Diagnostic Miller 65 and Sta Cir.1995). (8th argue 301.20, not 685 The state does Manual Mental Disorders tistical (4th Teague, neglect, but this is excusable because p. ed.1994)—suggested that the 638 two rule, though wanting Thomas denies a new strategies have been combined in a could Any of his is one construal submission. nice theory that Thomas was most way Teague crazy particular a court can invoke even stimuli. time but went under Bohlen, Caspari it. v. 510 state has waived argument is neither made in Thomas’s This 952-53, 948, U.S. 114 127 supported by S.Ct. brief nor evi (1994); Welborn, Eaglin v. sentencing hearing. L.Ed.2d dence obtained after the Cir.1995) (en (7th banc); 496, F.3d Cur post- All that research of the the extensive Duval, v. supra, tis F.3d mitigation expert conviction counsel and prevail by up was that Thomas was of dull nor- So Thomas cannot ask turned intelligence, may ing subpoenaing of mal his mother requiring for a rule cases; growing up capital him he was institutional all but beaten when records father, open possibility fought alcoholic that he is law- leaves (“mildly suspicious paranoid”), that he has states, situation.” report Another such “this (“schizoid difficulty relating people appears to other good family be a unit.” tendencies”), and that- he have some isolation, Even viewed in the mitigation damage, though enough push evidence was unimpressive. principal average him below the intelligence. level of report document is psychiatrist of a unimpressive comparison This is evidence examined Thomas on death report row. The cases which the fail attributes the murder to “an unfortunate pre ure obtain evidence for synchronicity events,” Thomas having sentencing sentation at the hearing was the process been “in the of leaving the victim’s ordering hearing. basis for a new Emerson garage when she screamed and tried re- (7th 898, Cir.1996); Gramley, 91 F.3d strain him from behind. Mr. Thomas was Aiken, (7th Brewer v. 935 F.2d 858-59 conditioned to reflexively act in such a cir- Cir.1991); Calderon, Bloom v. 132 F.3d cumstance.” The evidence that (9th Cir.1997); Lewis, 1273-77 Clabourne v. murder victim screamed and tried to “re- (9th Cir.1995); 64 F.3d 1385-86 Ant Thomas, strain” or that already he was Delo, wine v. 54 F.3d 1365-68 process of leaving garage when she sur- Cir.1995); Baxter v. him, prised came from Thomas’s -confession. (11th Cir.1995); 1512 and n. 30 Hendricks v. *5 psychiatrist’s dependence uncritical (N.D.Cal. Calderon, 929, F.Supp. 933-35 the murderer’s self-exculpa- uncorroborated 1994), (9th aff'd, 1032, 70 F.3d 1044-45 Cir. tory statement, along psychiatrist’s with the 1995). actually It is weaker than evidence in effort to blame Thomas’s behavior on an in upheld eases which courts have the denial “oedipal situation,” exposed would have Peters, of such relief. Eddmonds v. 93 F.3d psychiatrist to lacerating cross-examination (7th Cir.1996); 1319-22 v. Green John had he testified at sentencing hearing. son, Cir.1997). 116 F.3d Men who And, cases, repeatedly women, finally in assault as those in mixed one, murdering unlikely are psychological in to have a normal mitigation is evi psychological profile. mitigation dence had a Cf. Kokoraleis defense based on v. Gil more, supra, 131 F.3d at attempted, They evidence been' are unlikely to by prosecutor highly intelligent products would have been be the used as aggravation. loving further evidence in of a warm and home. It is Eddmonds difficult to Peters, supra, v. 1321; jury believe that a Green otherwise minded to sen Johnson, supra, v. 116 F.3d at 1123. tence This Thomas to death would have been evidence, included by evidence that Thomas was belliger whole, moved evaluated as a hostile, ent and and had been in lawyers so the which his unreasonably current classroom; poor impulse control; that he had lawyer fault his trial for failed to “quite that he is intelligent” speech and his is uncover. dug up Even if she had' all this grammatical”; evidence, “fluent and that when irritat might reasonably she have decided ed and explo frustrated he could “act out in that on keep balance it was better to away it ways”; sive that judge one jury had said that “it from the and instead stake her all on (or dangerous person would be to allow this to convincing at least one member street”; walk the that a clinical jury, evaluation of the all that it in takes Illinois to condition, present- said that “in his prevent imposition penalty, of the death regarded must quite danger People [Thomas] as Ramey, 152 Ill.2d 178 Ill.Dec. ous, specifically point (1992)) from a sexual of view.” 604 N.E.2d that This evidence in aggravation, generally secreted as it Thomas person decent in were psychological yielded interstices of the at times impulse to irresistible to defense, violence; further impossibil demonstrates the that redeeming quali he had some ity combining ties; that defense with a “nice and that it would be unfair to sentence guy” defense. One of the documents un a man to police death when the had extracted postconviction earthed investigation, a confession from him promising his incidentally, report is a social worker’s con mother he confessed he would not be firming stability “the relative compe- home executed. The fact that in the end a possibly child just eight to do and the death might have decided lawyer tent mother; did, to “a psy- strangled we referred fearing lawyer what Thomas’s juror find so life that one twelve simply chological evidence would bleak, deprived, harrowing, so so full of dangerous, sug- so her client look weird investigate ... as to reduce Emerson’s moral to was horrors failure gests that her responsibility” 91 F.3d at for the murder. plainly it shows that But more harmless. nothing comparable 907. There here. a substantial is failed to establish Thomas has soeiopath-a history is that of a lawyer conducted Thomas’s had his trial likelihood that eventually homicidal, crim- compulsive, that his thorough the same Moreover, there inal. because Emerson conducted postconviction counsel theory mitigation, it spared. was no alternative would been possible here con- was not there it is to his trial say This is not approach while clude that the alternative By trying fact the better defense. chose may very good, was taken not have been opened guy,” as a “nice portray Thomas psychohistory good have been as as the prosecu- withering scorn of the herself to approach that was not taken. argument tor, closing who in rebuttal remarked, “He never of Thomas’s argument His other rever family. never attacks his rapes his He prosecutor, opening in his sal is that He is guy. a nice nice friends. And is hearing, argument sentencing appeal at the go neighborhood and enough leave his by doing fatally so prejudice ed to racial neighborhoods to terrorize people’s hearing resulting sen tainted the added, “There no evidence them.” He prosecutor passing tence. The remarked from a bad home environment. Walter came testify that a that one or detective fact, opposite. is the There the evidence in prior both offenses of Thomas’s sexual *6 any psychological is no that he “young white women and both volved prosecutor’s main problems.” But the em- those cases involved knives.” Thomas’s being piti- and cruel phasis remark, was on Walter’s object not and the counsel did less, potential, of rehabilitative re- devoid Supreme of Illinois therefore consid Court morseless, sadistic; he thus and could waived; though ered the issue and it added that psychological evidence Thom- error, used the plain People that no v. there was good pur- lawyer present did not to as as’s Thomas, supra, 148 Ill.Dec. “nice evidence.

pose as he used the plain error does not N.E.2d review (Toward rebuttal, said, the end of Gramley, v. procedural cure a default. Neal every night- Cir.1996). Thomas woman’s “Walter 843-44 mare”—a theme to which the seem, in other This not cases resonance.) In- evidence would have added be, entirely satisfactory not resolu- deed, that if Thomas’s predictable it is law- tion, prosecutor appealing since was yer path that his current law- had taken objection prejudice an racial taken, says we yer she should have would magnified ap- appeal. But in context argument that now be faced pears only purpose that the of the remark wrong psy- choice—that following a was to that Thomas was establish chological too evidence was thin be worth behavior; pattern in his and his assaultive jury—and a putting before that therefore object- not testified later that she had sentencing hearing new should be ordered. not it an ed because she had considered Gramley, prosecution appeal prejudice. is Emerson v. The His best case su racial suggest possible racial did not elsewhere a pra, where we held that failure investi crimes; history, was gate in a in motive for Thomas’s remark the defendant’s case fleeting planted too to have such mitigation evidence at all was intro and isolated which no mind; jury’s and the sentencing hearing, suggestion entitled him duced at testify hearing. history, detective never did about race to a new Emerson’s howev er, including any The remark did garish shocking, of Thomas’s victims. was trial, from seriously age prevent at the Thomas fair being shot and wounded process Mm deny so it did not due arrived for work- at Mount Hospital. Sinai DeChristoforo, Lying hospital lot, Donnelly wait parking law. U.S. Mr. nurse, 637, 642-43, 1871-72, placed Thomas accosted the knife to S.Ct. throat, (1974). her grabbed her the wrists and led L.Ed.2d her nearby park. point, to a At that some- magnitude No error of constitutional Thomas; tMng frightened Mr. he released sentencing hearing. committed The the victim and scene. fled the court is judgment the district therefore pattern A continued. few months la- Affirmed. ter, Mr. Thomas attacked another nurse in the parking hospital. lot of that same On RIPPLE, Judge, dissenting. Circuit occasion, knife, that wielding Mr. began Mr. Thomas’ with the law troubles car, ordered the nurse into her told her to years when he was old.1 In Febru- fourteen clothes, take off purse. and stole her ary Mr. attacked a female Again, Mr. apparently scared attending. teacher at the he was school off opportunity before he had the to assault attack, Mr. accosted that teach- sexually crimes, his victim. For these two knife, and, holding er with a while the knife adjudicated Mr. Thomas was a delinquent throat, attempted to her to lead her down the ward of the court committed to the later, hall. Several months Thomas at- Department Corrections, Juvenile Divi- During tacked another teacher. female sion, for During time, fifteen months. attack, Mr. struck Thomas twice the teacher Mr. Thomas psycholog- underwent numerous leg. face with a table these two For ical examinations and was treated with at offenses, adjudicated a de- least psychothera- six months of one-on-one linquent pro- minor six and received months py. juvenile Mr. Thomas’ records contain During probation, bation. Mr. Thomas ample evidence of these examinations and was examined the Clinical Division of the treatments and indicate serious concern Court. individual conducting Juvenile with Mr. Thomas’ mental health. the examination2 concluded Mr. Thomas February On an initial examina- “explosive” could be “poor at times and had tion psychologist was conducted associ- impulse control.” He further noted that Mr. County ated with the Cook Juvenile .Court. tendency explo- Thomas had a to “act out in The psychologist reported that Mr. Thomas *7 ways” sive when “irritated and frustrated.” IQ placing had an of him at the “low end The examiner Mr. Thomas concluded range of the intelligence.” dull normal of was an intelligence” individual of “limited psychologist The also concluded that Mr. who “is new unable to handle stresses and Thomas exhibited elements of a “schizoid concepts always and does not tolerate au- personality.” further He noted that Mr. examiner, very thorities well.” This howev- signs Thomas exhibited of “conflict with the er, did not believe that Mr. in Thomás was opposite by sex” and felt threatened female any psychiatric need of care and concluded authority figures. Finally, psychologist the “thinking there was no disorder.” counseling recommended and warned that

It long placed was not Mr. Mr. before Thomas should be under “strict juvenile in morning supervision” prevent back court. On the controls in of and order wrongdoing. October he attacked a nurse as his involvement further in part, transcript the 1. For most the information contained taken from the of Mr. in Thomas' sen- following the has been discussion taken from the tencing hearing which found in the state court psychiatric reports ju- record, contained in Mr. Thomas' transcript trial volume numbers 44-46. deposition venile records and the of Mr. Thomas’ trial defense was counsel which taken in connec- conducting 2. The the name and title of individual post-conviction proceeding. tion with the state this been had redacted from the The reports can he found volume in report Accordingly, found in the we do record. post-conviction one of the record state of the professional background not know the 10-24; proceeding deposition at labs can be findings individual are whose contained in that addition, found tab 1 in the volume. In same n (cid:127) report. following some information in discussion was “very and juvenile Thomas suffered from real seri- report, this reviewing After problem.” of light In this “dangerous it ous was court concluded problem, Ac- the doctor warned that Mr. Thomas to walk the street.” Thomas] allow [Mr. quite dangerous, par- regarded “no “must be as the court decided cordingly, , ticularly point view.” The from of recommend commitment sexual alternative but boy’s that Mr. Thomas prob- this doctor concluded should understanding that psychotherapy. six months of of an emotional receive deeply rooted and lems are addition, court' recom- In nature.” examination, Shortly after Mr. Thom- placed be that Mr. Thomas mended regime psycho- began prescribed of rather than Mental Health Clinic Tinley Park therapy. Mr. Thomas’ treatment consisted The court further punitive institution. weekly meetings In psychologist. with a placement was not stated such addition, EEG examination was conducted an be psychotherapy should available possible, during Mr. Thom- that time. The results of placed. April wherever Mr. Thomas Al- EEG were “borderline abnormal.” as’ placed in the Illinois Thomas Mr. strong though EEG itself was not evi- Boys (“Training Training School State own, its organic damage brain dence School”). electroeneephalographer noted that School, supportive opin- clinical EEG “could be placement Training Prior to psychi- epilepsy” the event that the clinical both a ion Mr. Thomas was evaluated supported that He psychiatrist The record also conclusion. psychologist. atrist and that Mr. Thomas return for a from recommended that Mr. suffered concluded repeat in six months and that he be but noted that he exhib- EEG psychosis” “no overt subject clinical propensities.” In addi- to additional observation “mildly paranoid ited tion, the meantime. psychiatrist recommended that given electroencephalogram At the conclusion of six months of (“EEG”) if he to ascertain had suffered treating psy- psychotherapy, Mr. Thomas’ long a result' of a bout with scarlet damage as chologist reported that Mr. Thomas had diag- youth. psychologist The fever as a significant progress during the six- emotionally as “an dis- nosed Mr. Thomas began regime. Athough Mr. Thomas month youth” concluded that his attacks turbed regime disposition, with a hostile his feeling of his threatened were continuation “a therapist hostility had noted that the subsid- attempts “to increase females” and and that Mr. had im- ed over time masculinity.” psychologist rec- sense proved relationships peers. with his Thomas be involved ommended that Mr. therapist reported that be- psychotherapy” “intensive one-to-one improved institution had havior “psychiatrically prior examined he be significant in his that he had shown interest degree threat release to assess time, welding classes. At that Mr. Thomas poses assess for females and himself psychiatrist re-evaluated the same *8 mildly paranoid propensities.” his place- shortly him his who examined after psychia- Training The placement A his at the ment School. months after few School, Mr. made signif- trist Thomas had Training Mr. Thomas evaluated noted therapy report, progress but cautioned psychiatrist. In his icant another progress by no that Mr. Thomas’ “should psychiatrist stated his examination interpreted suggestion as an strong “a of means be indication Thomas revealed Mr. psychopa- plus degree of emotional Walter out of woods from organicity, a severe addition, strongly suspected thological point of view.” In He psychopathology.” organic noted the inconclusive EEG results suffered from brain doctor that Mr. Thomas suspicion that strong Mr. that an EEG be done and restated damage and ordered degree organ- Thomas suffered from some on The doctor stressed Mr. Thomas. damage.3 organic damage, Mr. ic brain with or without organic question organicity regard possibility of his is still unre- 3. The With to the and, course, electroencephalo- damage, psychiatrist solved stated: Nonetheless, light progress. pattern later, The continued. A few weeks made, psychiatrist Thomas had recom- Mr. Thomas attacked a female medical stu- that Mr. Thomas be mended transferred to dent who was leaving the Medical Center out-patient setting on the condition that mid-afternoon. Mr. grabbed arrangements continuing be made for treat- car, student as she entered her which was psychiatrist psychologist ment or packed on a side street near the Medical regular repeated ups that there be follow put Center. He a knife to her throat and ensure such treatment was indeed get ordered her to in the car and to move taking place. The doctor also recommended over to passenger’s seat. After rummag- that a second EEG be done on Mr. Thomas ing through the purse, student’s Mr. Thomas during out-patient therapy. the course of the pants unbuttoned her and looked down her Accordingly, placed Mr. Thomas was on pa- shirt. remarking After that the student’s ear custody role and to the par- released of his small, was too Mr. Thomas switched seats April Department ents in of Correc- with the victim and ordered her to drive to a tions arrangements records indicate that secluded area. After turning busy onto a were made for Mr. Thomas to con- receive road, the-victim deliberately bumped into the tinuing psychotherapy Englewood car in front of her. When the driver turned Mental Health Center. around, began the victim to waive her arms later, year About one Mr. Thomas reverted and scream. After attempting to stab the pattern ways to his old and the of his earlier victim, Mr. Thomas fled the scene. assaultive behavior toward females resumed. pattern again continued. July On In June Mr. Thomas followed nurse 1973, University Security Illinois leaving University work at the Officer of Illinois (“Medical Center”) observed Mr. Thomas following Medical Center and ac- women near costed her with a knife the Medical getting as she was Center. Each patrol time his place into her car. This attack by, took car drove Mr. Thomas would do “a 180” middle of the afternoon a few blocks way. and walk the other This scenario- away from the Medical Center. After hour; played itself out about ten times over an nurse, threatening kill Mr. Thomas and a half. The officer placed then ripped raped off her clothes and her. Mo- Thomas under arrest for the attacks on the later, ments Mr. Thomas forced the victim to two women. Both victims later identified perform oral sex. He then instructed the him as their attacker. Mr. Thomas was victim to drive the car to a more secluded charged robbery, with armed deviate sexual raped again. kept area where he He her rape assault and for the first attack and was in the car for another hour and a half. Dur- charged attempted rape attempted time, ing that he told the victim that he robbery pleaded armed for the second. He kill would have to her because the last nurse guilty charges against to all -him 'and was raped identified him go and caused him to sentenced to concurrent sentences of four to prison. implored She him to spare her life eight years. Mr. paroled promised that she would not turn him in. 23,1978. February He then parking drove to the lot of a Sears raped foregoing store and her one narrative of Mr. Finally, more time. propensity after instructing the victim to to attack drive to a females evidences either location, very depraved certain Mr. Thomas very took her wallet individual or a dis- (so and driver’s making license he would turbed one. know where the life or death lived), judgment falls, exited her vehicle and fled the as to whether Mr. Thomas *9 conduct, scene. group virtue of his into that small of gram very interesting exactly electroencephalographer saying since it is in the this could vis-a-vis, picture, line organic depending with the clinical it is be on the clinician. This being possibili- recorded right as borderline and the leaves us we where were and we still ty epileptic say of an disorder suspicion cannot be ruled out. have to that there is a of peculiar picture We are damage Certainly, thus faced with the insight of here. the lack of stating organic a clinician displays that this could be that Walter is characteristic of this depending electroencephalogram on the kind of condition. responsibility imposition Illinois the for moral makes of for which reserves criminals 5/9-1, it penalty, 720 ILCS was penalty see the death unwarranted. death jury know that important that the not majority evades this crucial issue history, that a but he had such conduct focusing holding on its concern that history. jury clinical also had such a perfor- to such a standard of deprived information the of that because per a se mance would establish rule that did not uncover it. trial defense counsel comprehensive counsel must make a investi- my view, this failure constituted substandard gation every background of a defendant’s competent representation. I that a believe capital ease which the defendant has a attorney in a representing a defendant crimi- history committed sex-related point would make a nal case of this nature answers, correctly, majority crimes. The its thoroughly with the familiarizing herself by noting firmly that it is history. apprised own fears estab- Once client’s criminal competent must history, reasonably a lished that each case be assessed on its that criminal pos- attorney strong the recognize would also As own merits. the rendition above makes accompanied, sibility it might admits, that it clear, majority and as the this case was, significant psychiatric with a dimension. predator a involves recidivist sexual whose Furthermore, presented given options the behavior, severity frequency, both its record, was no real choice but to there- ought possibili- to have to the alerted counsel jury.. that information to disclose ty psychiatric importance information of a capital sentencing hearing. Under the cir- that, agree majority in a

I situa here, presented cumstances is no reason tion which there to doubt family ability simply or of his conducted defense was far defendant counsel assistance, good it performance render makes sense for below level of that one r'ely upon Indeed, their accounts of the expect. counsel to majority admits Indeed, past. specifi defendant’s Strickland as much. See ante at 515-516. cally contemplates such reliance. Strick See Having a good admitted that case can be Washington, land 466 U.S. performance that up made counsel’s was not (1984). 2066-67, 80 L.Ed.2d 674 S.Ct. par, majority nevertheless sends Mr. approval general ap Strickland’s such Thomas to his death because believes that not, however, proach permit counsel tó does no possibility there is substantial that a com- case, suspend judgment. In this professional petent investigation and submission to the given the nature of the defendant’s criminal jury would have It reach- difference. history, obligation counsel had to investi by deciding—on es result first its own— the causes for a life- gate aggressively such the two defenses—“the nice pattern and then to assess whether the re “psycho”—could not be combined. This might jury sults of that search indeed lead conclusion is not Criminal be- self-evident. that, given psychi decide the defendant’s havior, especially deviant criminal behavior responsibility history, moral for the atric. here, always per- as exhibited not such does punishment required crime than person’s person’s all of a life all of vade history death. The criminal evidenced here Indeed, relationships. the contrast between competent would alert a defense the Mr. Thomas’ life at home and his life on possibility the distinct defendant had might emphasized psychiatric history the street to a mem- convince a that; jury ber of a jury member of the to decide the defendant’s however present hardly heinous the crime and the criminal condition within the normal history, capacity range.4 the defendant’s diminished majority put

4. The contends in the event that have been for counsel to reasonable psychological trial on the counsel discovered shelf and to "stake evidence, swayed jury by convincing all ... could that Thomas presenting "theory generally person yielded that Thomas nice was a decent crazy impulse most of the time but went under certain times an irresistible to violence.” Yet, view, my majority two stimuli.” Ante at 516. later Ante 517. In these theories are *10 that, circumstances, fact, substantially jury might under the it In a concludes same similar. penalty majority engages imposed. then its own as- would not have been psychiatric Gramley, of the evi- See Emerson v. of the worth sessment (7th Cir.1996) (evidence petitioner’s dull; notes the obvious risk that it dence and jurors. IQ, accepted by many psychological problems Two normal might not be and con against giving militate sistent antisocial considerations behavior have con nonacceptance jury juror some vinced at least possibility against one to vote imposition sentence), controlling effect. of the members death cert. de —nied, -, U.S. S.Ct. First, prejudice, in order to show (1997); Aiken, L.Ed.2d 364 Brewer v. a Thomas must show that “there is reason Cir.1991) (petitioner F.2d 857-58 that, unpro probability but for counsel’s able prejudiced by present counsel’s failure to errors, proceeding fessional the results of IQ, damage, evidence of low brain lack of self Strickland, 466 would have been different.” control, susceptibility to influence of others 694, 104 S.Ct. at 2068. Under Illinois U.S. disadvantaged background). law, a defendant cannot receive the death Second, admits, juror objects imposi majority to the as the sentence one possibility rejection tion of"that sentence. See ILCS of such must be 5/9- Thus, case, weighed against 1(g). this Mr. Thomas need the alternate defenses avail- proba guy” show that there is a reasonable able to Mr. Thomas. The “nice defense is, bility unprofessional adequate by panel majority for counsel’s found but essence, errors, juror against no at all.5 one voted defense Its weakness short, juror penalty. emphasized by aggra- if one the death State’s ease that Mr. Thomas’ back vation which believed focused the horrible nature ground penalty unacceptable, of Mr. Thomas’ earlier made death crimes—an account theory, presented that Walter found the first when Thomas she knew could not have n copious psychological evidence summarized committed the murder or the crimes. above, persuasive probability more than the second. There is a reasonable that this strate- gy juror would have convinced least one Indeed, guy” trial counsel’s chosen "nice strat- capacity Mr. Thomas’ diminished for moral re- large part egy because it did not faltered in sponsibility required punishment other than provide jury explanation with an of Mr. death. aberrant This Thomas’ behavior. omission easy jury for the to dismiss the "nice testimony In addition to the of Mr. Thomas’ view Mr. Thomas as defense as irrelevant and to urged mother that she had her son to confess who, words, depraved criminal in the State's police because a had assured that he officer enough neighborhood was "nice to leave his disposition, could obtain a favorable counsel of- people’s neighborhoods go to other to terrorize following testimony. fered the The first witness fact, guy” strategy them.” In the "nice was so was a cousin of Mr. Thomas whom counsel dis- dismiss, easy to it amounted to no at all. defense morning mitigation phase covered the contrast, By strategy combining evidence of accompanied when she Mr. Thomas' mother to "good Mr. Thomas’ with the evidence of side” court. This witness admitted that she was not psychological problems presented would have very "quite but knew close Mr. him picture logical with a more coherent and testimony account well.” Her was limited to an psychologically aof disturbed individual who doing jobs of Mr. Thomas various around the normally may have been able to function in some witness, Wallace, church. The second Noreen life, aspects subject but was nonetheless family, landlord of Mr. Thomas’ testified that she bouts of behavior under certain stimuli. aberrant (cid:127) years had and that he known him for last ten juve- in Mr. Thomas' evidence performed jobs helped odd for her and supports theory—Mr. nile records this neighborhood gatherings. On cross-examina- diagnosed as an individual with a "schizoid tion, admitted, however, that, a substan- tendency” impulse "poor who had control” and time, period tial Mr. Thomas had not lived prone explosive ways.” to "act out family. apartment A former mate testi- diag-

Thomas’ records also reveal that he was apartment fied that he had shared an with Mr. having "very psycho- nosed as real and serious n Thomas, but that he was unaware of his logical problem" admitted and that at least one girlfriend A psychologists criminal record. former live-in testi- strong possibility felt there was a knew could not organic fied that the individual that she that Mr. Thomas suffered some damage have committed the crimes of which he stood as the result aof childhood illness. For example, prepared mitigation ample psychological convicted. Counsel all these group morning given entirely would have different context to witnesses in a session on the girlfriend testimony. the statement of Mr. former their *11 above, that, account set forth unlike the America, of Mr. of no mention Thomas’ UNITED STATES fact, argument, closing Plaintiff-Appellee, its

condition.6 emphasized fact that there the the State Mr. indicating that in the record no-evidence MILWAUKEE, Jones, Arthur CITY OF any from suffered Police, City Milwaukee, of of Chief problems. City Gardner, Chief, of Mil Lawrence course, that we is, well established Department, al., of It Fire et Defen waukee tactical choices of second-guess the shall not dants-Appellees, 689, 104 Strickland, 466 U.S. at counsel. See CULVER, Appeal of: Scott (“Judicial scrutiny of counsel’s S.Ct. at Proposed Intervenor. deferential.”). highly performance must be Nonetheless, choices must be reason those No. 97-3167. Here, simply was unreasonable able ones. Appeals, of United States Court go unanswered the State’s counsel to let for Seventh Circuit. past and to Thomas’ criminal account of Mr. guy exclusively on so-called nice rely the Argued April 1998. defense. May Decided 1998. I believe that Mr.

Because right assistance of the effective

denied Amend- guaranteed by the Sixth

counsel

ment, judgment reverse the of I would

district court. attacks, began aggravation told him its case with the June 1973 Mr. Thomas 6. The State really testimony the nurse Mr. Thomas brutal- "he didn't care about the victims of whom time,” ly raped described that those "were more or less of a on June 1973. The nurse crimes "trying prove graphic joke,” de- that he with Mr. Thomas in ánd man- her encounter testimony presented presented then from hood to his friends.” The State then tail. The State Foster, University testimony employees Illinois two of Donald of Illinois Officer Security First, Department Thomas for of Corrections. Dermis Jen- Officer arrested Mr. observing nings, Sociologist, attacks him follow- described June 1973 after Correctional an University ing Mr. of Illinois interview with Thomas after his conviction women outside gears Jennings The- State shifted for June 1973 attacks. Mr. testified Medical Center. momentarily then presented testimony responsibility of a that Mr. Thomas denied for the complex where Mr. June 1973 attacks that he was of a condominium and claimed tak- resident ing ness, performed janitorial work. This fall some second friends. The wit- Caldwell, employee testified that he once discovered Mr. Robert De- individual Division, garage. Returning partment snooping in his of Corrections Microfilm read attacks, presented description containing the State then from records Mr. the June 1973 testimony prior including juvenile of the crimes of Detective Michael Thomas’ of- Shull circle, Department participat- Coming pre- Chicago full Police who had fenses. the State then testimony investigation June 1973 attacks. the medical student ed in the sented testimony attempted rape Mr. Thomas State followed Detective Shull's whom 22, June student, testimony two Aurora members of the former who had become doctor, provided testimony concerning Department who- were vivid Police involved Dudek, Finally, Thomas. of the murder of Darlene her encounter ’ aggravation by offering its case. The second State closed case into the crime issue . officer, copies juvenile Langston, told the certified Detective Lawrence questioned convictions. Mr. Thomas about and adult when