Brown, Johnnie v. Sternes, Jerry ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2326
JOHNNIE BROWN,
Petitioner-Appellant,
v.
JERRY STERNES, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 5341—William T. Hart, Judge.
____________
ARGUED JANUARY 8, 2002—DECIDED SEPTEMBER 4, 2002
____________
Before POSNER, COFFEY and DIANE P. WOOD, Circuit
Judges.
COFFEY, Circuit Judge. This case is before us on a writ
of habeas corpus. In 1991, Petitioner-Appellant Johnnie
Brown (“Brown”) was arrested, and shortly thereafter
convicted after a bench trial of armed robbery and was
sentenced to the maximum term of 30 years imprison-
ment. After exhausting his appeals in the Illinois state
court system, Brown petitioned for relief in the federal
district court under 28 U.S.C. § 2254, alleging that he
had received ineffective assistance of counsel and argu-
ing that his attorneys failed to bring his mental prob-
lems to the court’s attention and that the proceedings in
the state court infringed upon his constitutional right not
2 No. 01-2326
to be tried when mentally incompetent. The district court
dismissed Brown’s petition on April 19, 2001. Brown ap-
peals. For the reasons we set forth, we conclude that Brown
was denied his Sixth Amendment right to effective assis-
tance of counsel. We remand with instructions to grant
the writ of habeas corpus unless the State of Illinois
elects to retry Brown within a reasonable time to be de-
termined by the federal district court.
This case exposes a tragic breakdown in the Cook County,
Illinois criminal justice system. A mentally ill criminal de-
fendant of recent vintage was arrested, put on trial, con-
victed of armed robbery, and sentenced to a term of thirty
years without anyone taking proper notice of the fact
that this same defendant had been diagnosed on more
than one occasion, confined and treated (from 1986-88), and
medicated intermittently for chronic schizophrenia for an
extended period of years. His court-appointed attorneys
provided a halfhearted defense, neglecting to thoroughly
investigate his medical condition and failing to procure
medical records establishing that he suffered from a myri-
ad of psychiatric problems. Thereafter, the attorneys prof-
fered self-serving affidavits once their lackadaisical law-
yering was revealed and challenged. Their less-than-
lawyer-like attention to duty caused problems for the court-
appointed psychologist and psychiatrist. These doctors,
relying on inadequate data, filed reports with the court
that could best be classified as incomplete, as they ig-
nored essential documentation of his medical history (i.e.,
his past psychiatric records), a basic element and require-
ment of any competency evaluation, and furthermore over-
looked important information easily ascertainable from
the defendant’s family members. The state probation officer,
in preparing the pre-sentence investigative report, neg-
lected to interview the defendant’s family members, to
make a thorough inquiry about Brown’s prior confine-
ment, (i.e., his adjustment to his institution), to investi-
No. 01-2326 3
gate the circumstances surrounding his general discharge
from the Navy, or his mental health history. Thus, the
sentencing judge was less than well-informed of critical
information, including the defendant’s long and well-
documented history of mental illness, as well as his pro-
longed period of treatment and confinement in a psychiatric
unit during his prior imprisonment.
I. FACTUAL BACKGROUND
A. Brown’s Medical History
Brown’s medical records reflect that he was initially
diagnosed to be suffering from chronic schizophrenia1
in 1986 while incarcerated in the Menard Correctional
Facility in southern Illinois. During his period of confine-
ment, Brown was found to be unable to function in the
minimum security unit of the facility because he was
mentally incapable of following the orders of the security
personnel and counselors, which in turn necessitated his
transfer to the prison’s psychiatric unit. Brown’s treat-
ing psychiatrist at Menard, Dr. Vallabhaneni, noted in
his reports throughout 1986 that Brown had “no ability
to communicate” and had admitted to hearing voices
that “help him to do his time.” Dr. Vallabhaneni diag-
nosed him as suffering from chronic schizophrenia and
prescribed various anti-psychotic medications for Brown
on a regular basis and continued to treat his mental ill-
ness until his release in 1988. During the defendant’s
period of treatment, Dr. Vallabhaneni noted on at least
1
Schizophrenia is a “common type of psychosis, characterized
by abnormalities in perception, content of thought, and thought
processes (hallucinations and delusions) and by extensive with-
drawal of interest from other people and the outside world, with
excessive focusing on one’s own mental life.” Stedman’s Medical
Dictionary 1601 (27th ed. 2000).
4 No. 01-2326
four occasions in 1986 and 1987 that Brown was “probably
hallucinating,” and that Brown was not only uncoopera-
tive, but demonstrated little or no insight into the exis-
tence of his psychiatric problems and frequently refused
to take his prescribed medication. Throughout this peri-
od Brown insisted that he was not mentally ill and
spoke very little about his mental condition with Dr.
Vallabhaneni. After nearly two years of confinement and
treatment, Dr. Vallabhaneni noted on May 1, 1988 that
Brown’s psychiatric problems are “in a chronic state and
he is not making any progress or worsening either.”
In 1989, after Brown’s release from prison, he applied
for Social Security disability benefits. As part of his ap-
plication for benefits, Dr. Mark Amdur, a consulting
psychiatrist for the Social Security Administration, evalu-
ated Brown and once more diagnosed him as suffering
from chronic schizophrenia. Dr. Amdur observed and diag-
nosed the following symptoms: impaired concentration
and attention, stilted speech with moderately severe
irrelevancy and illogicality, loosened associations, and
auditory hallucinations. Additionally, Dr. Amdur inter-
viewed Brown’s mother, who is a nurse, about his men-
tal state, and she advised the doctor that his “mind is
random” and that he makes sense one minute and then
“goes into autistic position and talks to himself.” Brown’s
mother also reported that he told her that he heard
voices. Unfortunately, not one of these records referred
to above was reviewed by the court-appointed mental
health doctors who examined Brown, much less intro-
duced into evidence by Brown’s attorneys at his state crim-
inal trial.
B. Brown’s Arrest
The police report and the trial testimony from the vic-
tim and the defendant outline essentially similar conduct
No. 01-2326 5
on the part of the defendant at the time of the crime.
At about 12:45 a.m. on March 26, 1991, roughly an hour
before the armed robbery occurred, the defendant and
the victim, James Brown,2 engaged in a brief conversa-
tion about a cigarette. About an hour later, the defendant
encountered the victim a second time. According to the
victim, the defendant grabbed him from behind, held a
pearl-handled knife to his throat, and demanded “every-
thing [he] had,” which amounted to fifty cents and an
adult bookstore token. The defendant, however, testified
that he was in fear for he believed the victim was follow-
ing him and that he thought the victim was going to at-
tack him. The defendant said he grabbed the victim,
“showed him” the knife, demanded to know why the vic-
tim was following him, and only then did he ask the vic-
tim for money. Brown was apprehended a few minutes
later, and the police recovered a pearl-handled knife, some
change, and an adult bookstore token.
C. Brown’s Pre-Trial Proceedings
On April 17, 1991, Asst. Public Defender Camille Kozlow-
ski was appointed to represent Brown. Six months later,
on October 28, 1991, on what was to have been the date
of Brown’s criminal trial, Kozlowski asked the court for
a continuance in order that she might arrange for Brown
to be evaluated both for “mental competency” and for
“sanity.” When the judge asked why she had waited until
the day of trial to raise this issue, Kozlowski replied
that just that morning, Brown had informed her that
Professor Thomas Geraghty, director of the Northwestern
University Law Center, had previously represented
Brown. Kozlowski telephoned Geraghty, who advised her
2
The defendant, Johnnie Brown, and the victim, James Brown,
are not related.
6 No. 01-2326
that Brown had once been found “unfit for trial” and that
while incarcerated at Menard he had received “large doses”
of “psychotropic” medication.
The trial judge, reluctant to grant the continuance
on such short notice, was eventually persuaded by an
insistent Ms. Kozlowski. She stated that after first meet-
ing Brown, she realized that there was “something dif-
ferent” about him. She complained to the judge of her
“difficulties” communicating with Brown, that he did “not
answer some of my questions,” and that he “yelled at
my law clerk.” She also told the judge that this new in-
formation about Brown’s mental issues “certainly an-
swers some of the questions that I had.” The rest of her on-
the-record statements bear quoting at length, especially
in light of her later prevarications:
Your honor, if there is an issue of fitness or sanity,
I believe justice is not going to be served unless we
have that answer, an answer to that. I would apolo-
gize to the Court for any inconvenience, but this is a
serious case as it is a Class X case; Mr. Brown is
looking at six to thirty years in the penitentiary. And
I think it’s very important that we look into these
issues. I am not doing this at the last minute to avoid
trial, obviously, your Honor, I would only do it be-
cause this man, who is the legal assistant dean at
Northwestern indicated that he—Mr. Brown—has
some serious background, psychiatric background.
Kozlowski concluded her supplication by notifying the
judge that she had just begun to attempt to secure Brown’s
“records from the Psychiatric Institute” at Menard, that
the authorities there stated “they are looking for them,”
and that she “just need[ed] to examine those records.”
The judge granted the motion and set a status hearing
for November 25, 1991, after a Behavioral Clinic fitness
and sanity evaluation (BCX) could be performed. The rec-
No. 01-2326 7
ord reflects that Kozlowski subpoenaed Brown’s medical
records from the Illinois State Penitentiary on November 1,
1991.
D. Brown’s Mental Health Examinations
On November 19 and 21, 1991, doctors from the Cook
County Circuit Court’s Psychiatric Institute, at the di-
rection of the criminal court, interviewed and examined
Brown to determine his fitness for trial, sanity, and ability
to understand his constitutional rights. These examinations
were conducted without the benefit of Brown’s history
of mental illness, treatment, and confinement in the Menard
psychiatric unit.3 His mental history had not been for-
warded to the court. Despite her stated belief that there
was “certainly an issue of sanity” and her prior request
to the trial judge, Brown’s court-appointed attorney Kozlow-
ski not only failed to follow up on her subpoena, but also
failed to advise the court-appointed doctors (Psychiatric
Institute) that she had been informed that Brown had a
recent history of treatment for mental illness and of his
confinement in the psychiatric unit at Menard.
The record reflects that during Brown’s initial competency
exam on November 19, he personally made the court-
appointed psychologist, Dr. Rabin, aware of the fact that
he had a history of prior psychiatric problems and treat-
ment. Brown informed Dr. Rabin that he suffered from
multiple hallucinations (“auditory, visual, olfactory, and
tactile”), had been placed in a “special unit” at Menard, and
was prescribed the anti-psychotic medication thiothixene
3
Whereas it is clear that individuals with chronic schizophrenia
often do not fully recover normal functioning and typically require
long-term treatment, generally including medication, to control
the symptoms, conducting an examination without the benefit
of Brown’s records is problematic, to say the least.
8 No. 01-2326
(“Navane”) for some two years while in confinement. Dr.
Rabin’s report is summary in nature, evidenced by the
fact that he made but a most modest effort to test the
credibility of Brown’s assertions concerning his mental
health history, his ingestion of prescribed anti-psychotic
medication, and his confinement in a psychiatric unit
at Menard. Furthermore, he made no effort to locate
Brown’s medical records to ascertain the veracity of
Brown’s claims. On the contrary, Dr. Rabin’s written re-
port simply reflects his summary dismissal of Brown’s
statements concerning his illness, and an acknowledg-
ment that Brown “dropped his allegations of multiple
hallucinations” after he had “confronted and pushed”
Brown.4 Dr. Rabin’s conclusion that Brown was fabricat-
ing his history of mental illness (referring to him as “ma-
linger[ing] in a half-hearted way”), is a particularly dubi-
ous judgment when the subject has just recently been
diagnosed as a chronic schizophrenic.5
Two days later, on November 21, 1991, Dr. Gerson
Kaplan, a psychiatrist at the Psychiatric Institute, met
with Brown to evaluate his fitness to stand trial. Prior
to interviewing Brown, Dr. Kaplan reviewed the arrest
report as well as Dr. Rabin’s report. Even though Dr.
Rabin’s notes reflected that Rabin had discussed Brown’s
prior psychiatric treatment and confinement at Menard
4
It is well established that persons suffering from schizophrenia
behave differently at different times and experience psychotic
episodes that come and go. See National Institutes of Health,
Schizophrenia, at http://www.nimh.nih.gov/publicat/schizoph.htm.
5
“A well-established history of disorder before the relevant
criminal behavior is also useful in helping to rule out malingering
[pretending to be ill], although it is not unheard of for even
genuinely disordered persons to recall their symptoms at will if it
appears to be in their interests to do so.” Robert D. Miller &
Edward J. Germain, The Retrospective Evaluation of Competency
to Stand Trial, 11 Int’l J.L. & Psychiatry 113, 122 (1994).
No. 01-2326 9
with him, Dr. Kaplan also failed to conduct an adequate
investigation into the possibility that Brown had in fact
been diagnosed as suffering from chronic schizophrenia
and had received treatment, including medication, for his
mental illness. Dr. Kaplan’s report briefly discussed Brown’s
claims of a previous history of psychiatric problems:
Defendant states his only psychiatric history was in
1988, when he was stabbed while he was at Menard
and he said at that point, he was placed on psychiatric
medication, he is vague as to the reasons for this or
what the medication was. . . . Defendant denies any
other psychiatric history other then [sic] the above
mentioned history from Menard.
The record reflects that Dr. Kaplan, even though aware
of Brown’s claim to have been confined in the Menard
psychiatric unit, offered no explanation for his failure to
attempt to get information from either Kozlowski or from
Menard about Brown’s stated psychiatric problems in
testing Brown’s history of past recollection for accuracy
and truthfulness. In spite of the absence of information
concerning Brown’s case history, Dr. Kaplan concluded
that the defendant was “mentally fit for trial” as of No-
vember 21, 1991, and furthermore went on to find that he
was legally sane at the time of the commission of the
offense charged, and submitted this recommendation to the
court.
E. Brown’s Status Hearing
Brown appeared in court for a status hearing on No-
vember 25, 1991. On the basis of Dr. Kaplan’s medical
report, the trial judge concluded that Brown was fit to
stand trial. Kozlowski, in spite of her wealth of knowledge
about her client to the contrary, failed to object or question
Kaplan’s competency recommendation in any manner,
much less the court’s finding that Brown was mentally
competent to proceed to trial. She also neglected to make
10 No. 01-2326
the court aware that the prison authorities at Menard
had not yet complied with the subpoena for the records.
Kozlowski’s less than vigorous approach in advocating
her client’s interests came in spite of several important
facts: (1) she had been informed by Geraghty, the North-
western University Law School professor, that Brown
had previously been prescribed and received anti-psychotic
medication; (2) she had also been informed by Geraghty
that Brown had previously been found unfit to stand trial;
(3) she had been having difficulty communicating with
Brown and had as well advised the court of the episode
when he yelled at her law clerk; (4) she had earlier ex-
pressed to the trial judge that there was “certainly an issue
of sanity”; and (5) she had subpoenaed, but never re-
ceived (and neglected to continue her investigation into
the failure to produce) Brown’s medical records from
Menard.
Not surprisingly, as a result of the inadequate work
products of the public defenders and the court-appointed
doctors, the court found Brown competent to stand trial
and set the date for his criminal proceeding in January
1992.
F. Brown’s Trial
On January 30, 1992, the day of the defendant’s trial
before Judge Morissey in the Cook County Circuit Court,
Kozlowski was ill. At trial he was represented by a sub-
stitute public defender, Lafonzo Palmer, who met Brown
for the first time that morning. Kozlowski neglected to
inform Palmer of Brown’s questionable conduct with her
and her law clerk as well as the fact that she had been
informed that Brown had suffered recently from mental
problems, that he had been confined in a psychiatric unit
while receiving treatment at Menard, and furthermore
that she had as of that date been unable to obtain
Brown’s medical records. As a result of these problems in
No. 01-2326 11
the Cook County, Illinois justice system and state pris-
on system, attorney Palmer conducted Brown’s defense
totally unaware of the fact that Brown had been previous-
ly diagnosed as suffering from chronic schizophrenia and
had been treated for the same. The only knowledge that
Palmer had regarding Brown’s mental condition was the
November 21, 1991, report in Brown’s file from Dr. Kaplan
stating that Brown was competent to stand trial and
was also sane at the time of the offense.
Brown waived his right to a jury trial and entered a
plea of not guilty, although the transcript of Brown’s
colloquy with the judge reveals Brown’s confused re-
sponses to the judge’s questions about the waiver of his
constitutional rights. A 30-minute bench trial ensued,
during which time only three witnesses (the victim, the
arresting officer, and Brown) testified. During Brown’s
short time on the witness stand, the judge’s own frustra-
tion with Brown is evident, as the judge had to instruct
Brown repeatedly to speak so that he could be understood.
The essence of Brown’s testimony was (like his state-
ment to the police) that he believed the victim was follow-
ing him, that he was going to attack him, and that his use
of the knife was designed to scare the victim away.
Shortly after the defense rested, the judge mentioned
that he thought he had observed Brown laughing at an
inappropriate time during the trial and asked Brown if
“there was something funny?” At that point, Brown en-
gaged in an outburst of random obscenities and insults
directed at the court as follows:
MR. BROWN: F*** you, Jack. Hear what I am saying?
THE COURT: Take it easy, Mr. Brown.
MR. PALMER: Be quiet, Johnnie.
MR. BROWN: I am grown. I am locked up, mother
f***er. That is my mother f***ing ass.
12 No. 01-2326
MR. PALMER: I know that, Johnnie. I know. I know.
I know.
MR. BROWN: You are a lying mother f***er.
MR. PALMER: Just relax. It is okay.
MR. BROWN: Can I go to the washroom?
THE COURT: We are waiting on opening argument.
MR. PALMER: Just a second. You can go to the wash-
room. Tell the Judge you are sorry.
MR. BROWN: Excuse me.
After the oral exchange between the defendant, the
court, and the defense attorney, Brown’s attorney waived
closing argument and the trial judge proceeded to find
Brown guilty of armed robbery. His counsel, Palmer, at
this time moved for a psychiatric examination prior to
sentencing in light of Brown’s in-court, uncontrolled and
irrational outburst at the conclusion of the trial. The trial
judge took the motion under advisement but never ruled
on it, for reasons unexplained.
G. Brown’s Sentencing Hearing
At the February 25, 1992, sentencing hearing, Brown
was again represented by Palmer. Since nearly a month
had passed, Palmer certainly had the opportunity to
acquaint himself with Brown’s file, which included a copy
of the Menard subpoena Kozlowski had served. Though
Menard had still not complied with the subpoena for
Brown’s medical records, and even though his client
was being sentenced without the benefit of these critically
important documents, Palmer failed to make even a cur-
sory inquiry into the reasons Kozlowski had sought the
records, much less into the reasons why the prison had
failed to produce them. Even though Palmer had ob-
No. 01-2326 13
served Brown’s erratic behavior and outburst at trial, and
in spite of the fact that he knew or should have known
about Kozlowski’s subpoena and Menard’s inaction on
that subpoena, Palmer failed to request an adjournment
of the sentencing to allow him more time to produce these
records.
The sentencing was also affected by the incomplete
and inaccurate pre-sentence report that had been filed with
the court. The investigating officer who authored the re-
port, Sunsaray Hodges, failed to collect information about
and report on Brown’s family history, psychiatric history
and illness, prior psychiatric treatment and confine-
ment, the circumstances surrounding his general discharge
from the Navy, and his conduct while in prison. Thus,
because of this inaccurate report, the judge was still
unaware at the time of sentencing that Brown had been
diagnosed as suffering from chronic schizophrenia.
As this court has stated before (though in a slightly
different context), a sentencing judge’s inquiry is broad in
scope, “largely unlimited either as to the kind of informa-
tion he may consider, or the source from which it may
come.” United States v. Gerstein, 104 F.3d 973, 978 (7th Cir.
1997) (quotation omitted). The reasoning for this is plain:
The sentencing stage of a trial is one of the most
important parts of the criminal process. In order for
a judge to be well advised of the facts surrounding
the defendant’s background, and particularly in view
of the judge’s obligation to the general public, as well
as to the defendant, to be fair, reasonable, and just,
it is imperative that he be allowed to draw upon a
wealth of information concerning the defendant’s
background, from his date of birth up to and includ-
ing the moment of sentencing. . . . In order to render
justice to all the judge must be able to impress upon a
defendant through the expansive contents of an all
14 No. 01-2326
encompassing sentencing report that we are a country
of laws and not men.
Id.During the sentencing hearing, Palmer asked the trial
judge to consider Brown’s strange behavior at trial as a
mitigating factor in the severity of his sentence:
I understand there was a psychiatric evaluation in
this case. I understand he did come back fit; however
your Honor did see his demeanor throughout the trial,
and I’d ask your Honor to take that into consideration,
that although he did come back legally fit, you saw
everything that occurred in the court, Judge. And I’d
ask your Honor not to ignore that. This is a man who
does have problems. This is a man who is not an
extremely—a violent person. This is not a person who
on his own volition is a violent person. We would ask
the court to take all of that into consideration in sen-
tencing him, and we would ask for leniency in the
sentence.
The trial court responded that “certainly some psycholog-
ical observation of [Brown] is in order,” but in spite of
this comment reflecting his awareness of the problem
and in spite of the request for a psychiatric exam (on which
the court failed to act), the judge went on to conclude
that Brown was fully responsible for his own actions at
the time of the offense and went on to describe him as a
“pathetic individual” who “could have overcome” his “pa-
thos” “a long time ago” if he had “made some effort” to do
so. The judge found him guilty, and in sentencing him
to the maximum term for armed robbery, 30 years, stated
that Brown had “virtually no hope for rehabilitation.”
H. Post-Conviction Proceedings
The Illinois Appellate Court affirmed Brown’s convic-
tion and sentence on direct appeal. Thereafter Brown
No. 01-2326 15
filed a pro se petition for post-conviction relief in the
state court, alleging without any evidentiary support that
his prison sentence violated several unidentified consti-
tutional rights. The state trial judge summarily dismissed
the petition as frivolous and legally insufficient.
Brown appealed the dismissal of the petition, and the
Illinois Court of Appeals appointed the Cook County pub-
lic defender to represent Brown. Shortly after the appoint-
ment, Brown’s public defender filed a motion to with-
draw pursuant to Pennsylvania v. Finley, 481 U.S. 551(1987), on the ground that Brown’s pro se petition failed to
allege facts sufficient to give rise “to a deprivation of
constitutional rights.” The motion to withdraw was granted,
and his representation was transferred to and assumed by
attorneys from the Northwestern University Legal Clinic.
At this point, Brown’s fortunes began to improve. New
counsel immediately moved the appellate court for leave
to amend the pro se petition and to supplement the trial
record with Brown’s Menard mental health records (men-
tal history referred to above) as well as the records from
the Social Security Administration.6 The Illinois Court
of Appeals denied the motion to supplement the record
and amend the petition, affirming the dismissal of
Brown’s pro se petition for post-conviction relief. At the
same time, however, the state appellate court noted, in light
of the medical evidence submitted on Brown’s behalf in
counsel’s motion to amend the petition for post-convic-
tion relief, that fundamental fairness would require that
Brown be given the opportunity to file a second post-
conviction petition at the trial court level.
6
The record is silent as to how the Northwestern Legal Clinic’s
attorneys were able to obtain Brown’s psychiatric records from
Menard, while Kozlowski was not. The record does reveal that
Kozlowski’s subpoena was served on the prison authorities by
mail on November 1, 1991 by the Cook County clerk.
16 No. 01-2326
Brown followed the direction of the Illinois Appellate
Court and returned to the trial court, filing a second post-
conviction petition seeking relief on the grounds that his
trial counsel was ineffective for failing to make a profes-
sional, lawyer-like effort to ascertain whether the defen-
dant had a history of mental illness after counsel had been
so advised. Furthermore, Brown argued that his trial
counsel (Palmer) had been ineffective in failing to chal-
lenge the doctor’s conclusion that Brown was fit to stand
trial and that he was sane at the time of the offense. In
addition, Brown argued that his due process rights were
violated when he was forced to go to trial while mentally
incompetent.
In support of Brown’s petition for post-conviction re-
lief, Brown’s new attorneys retained Dr. Keenan Ferrell,
a clinical psychologist, to examine and evaluate Brown
in order to ascertain if Brown was suffering from a men-
tal illness and, if so, the nature thereof. Dr. Ferrell exam-
ined Brown on December 3, 1995, and as part of this ex-
amination reviewed the records of Brown’s conviction, his
mental health records (from Menard as well as the evalu-
ation conducted by the Social Security Administration)
and in addition interviewed Brown’s mother and older
brother. Dr. Ferrell’s report states in pertinent part as
follows:
The irrational, child-like, immature manner in which
Mr. Brown executed his recent crime demonstrates
a lack of logical, cohesive thinking processes . . . .
Mr. Brown’s execution of his crime indicates a com-
bination of the various components of his disturbed
thoughts. First, he felt he was under attack, secondly,
he perceived himself as a criminal, and thirdly, he felt
a sense of urgency to simply get the incident over with.
Mr. Brown has prominent paranoia and at that time
he believed that he was about to be attacked, as he
reported during his trial.
***
No. 01-2326 17
Mr. Brown admitted to having previously been on
prescription medication. Currently he has been off
this medication for so long that he is not responsible
or rational enough to make appropriate decisions.
Therefore, all decisions Mr. Brown made while off
his medication should indeed be viewed as the deci-
sions of an irresponsible, unreasonable, and illogical
man . . . . [I]t is felt that Mr. Brown has the diagnosis of
Schizophrenia, Residual Type.
***
Personality data and clinical interview indicated that
Mr. Brown has chronic, significant mental health prob-
lems which hinder his daily functioning. He tends to
be extremely withdrawn, he continually fears that others
are out to hurt him, and he was with [sic] poor insight
into his emotional problems. Mr. Brown’s thoughts are
dominated by a severely disturbing, chronic mental
illness known as schizophrenia. It is this examiner’s
opinion that this disorder has interfered with Mr.
Brown’s thought processes for the majority of his life,
apparently since adolescence. Therefore, his past crimi-
nal acts were clearly committed while under the
thought-distorting effects of schizophrenia.
The state opposed Brown’s petition for relief and, in spite
of the record to the contrary, saw fit to argue that Brown’s
attorneys had no reason to suspect Brown was schizo-
phrenic. The state somehow steadfastly adhered to its
belief in the accuracy of Dr. Kaplan’s findings pronounc-
ing Brown competent to stand trial as well as sane at the
time of the offense. In support of its argument, the state
presented affidavits from public defenders Kozlowski and
Palmer. In her post hoc, self-serving affidavit, Kozlowski
provides blanket and general statements that Brown “[a]t
all times . . . was lucid and coherent . . . and did not
demonstrate delusional behavior” and further that she
18 No. 01-2326
had no indication that “he did not understand the proceed-
ings against him or could not cooperate with counsel.”
To describe Kozlowski’s sworn affidavit as “not worthy
of credence” is to put it mildly. She made all of the asser-
tions as to his competency in her post hoc affidavit in spite
of the record, which so eloquently sets forth her personal
knowledge of Brown’s mental history, her experience with
her client, and her previous in-court, on-the-record vigorous
plea for a mental examination of her client. Furthermore,
Kozlowski’s affidavit fails to offer an explanation, much less
a reason, as to why she abandoned any further effort to
investigate Brown’s mental condition, or to follow up on the
subpoena she had requested for her client’s psychiatric
records. Finally, Kozlowski’s affidavit, in which she claims
she believed that “[a]t all times [Brown] was lucid and
coherent,” is most inconsistent with her earlier representa-
tion to the trial judge that there “certainly [was] an issue
of sanity,” not to mention her request for a continuance
in order to investigate Brown’s medical history.
Palmer’s affidavit is as defensive and as incomplete
as Kozlowski’s. He avers, for example, that during his
conversation with Brown the morning of trial, Brown was
both “lucid and coherent” and was able to assist in the
preparation of a defense. But then Palmer fails to make any
explanation of why he moved for a psychiatric evaluation
shortly after the completion of the trial and before sentenc-
ing, when he had observed firsthand Brown’s uncontrolled
and irrational outburst during the court proceeding as
described herein. Furthermore, he also fails to elucidate
in his affidavit why he never renewed this motion for a
psychiatric evaluation nor did he request that the court rule
upon his pending motion before sentencing.
With this new material in front of him, the state trial
court judge thus had a second chance at the bat to rule
on Brown’s fitness. Despite having the benefit of the
No. 01-2326 19
mountain of evidence (including the missing psychiatric
reports from Menard (1986-88) as well as Dr. Ferrell’s 1996
report and finding of schizophrenia) submitted by the
Northwestern University attorneys in support of Brown’s
petition, the judge dismissed the second petition for post-
conviction relief without even so much as holding an
evidentiary hearing. The trial court ruled and stated that
although Brown did exhibit some bizarre behavior dur-
ing the trial proceedings, the state court proceedings “did
not amount to a substantial denial of Mr. Brown’s constitu-
tional rights” (ineffective assistance of counsel).
Brown then appealed—for a third time—to the Illinois
Appellate Court, which affirmed the state trial court’s
dismissal, holding that there was “no compelling basis or
reason for counsel to further investigate defendant’s mental
condition,” despite the fact that the record reflects that
he was confined in the Menard psychiatric unit while
being treated for chronic schizophrenia from 1986 to 1988.
The state appellate court somehow reasoned that Brown’s
trial attorneys had no reason to pursue an investigation
of Brown’s mental condition, evidently believing the as-
sertions that Kozlowski and Palmer had made in their
affidavits; to wit, that they had not been informed of the
specific nature and diagnosis of his problem and because
he was “lucid and coherent” on the particular days dur-
ing which their representation brought them in contact
with him.
The reasoning and comments of the state appellate court
can best be described as alarming, confusing, and most
surprising, particularly as the court never saw fit to deal
with the newly presented evidence through the valiant
efforts (once again) of the Northwestern University Law
Center attorneys detailing his prior and well-documented
psychiatric history and confinement. Neither did the
court see fit to analyze the problem of the lack of dili-
gence and attention on the part of Brown’s attorneys
20 No. 01-2326
(Kozlowski and Palmer) in failing to gain access to his
past psychiatric problems. We are at a loss to understand
the court’s conclusion—that there was “no evidence that
if Dr. Kaplan had reviewed [Brown’s Menard] medical
records, he would have altered his fitness finding”—if only
because of the contrary findings of two different psychia-
trists (Dr. Vallabhaneni from Menard and Dr. Amdur
consulting for the Social Security Administration), both
of whom conducted independent evaluations of Brown and
both of whom emphatically concluded at the time of their
respective evaluations that Brown was suffering from
chronic schizophrenia.7 Similarly, we have great difficulty
in accepting and can neither comprehend nor concur in the
court’s contention that Brown’s complete medical history
(including Dr. Ferrell’s report) would have failed to support
an insanity defense or persuade the trial judge to impose a
shorter prison sentence. The Illinois Appellate Court re-
jected Brown’s due process claim, once more without giv-
ing us the benefit of an analysis of the problem created
by Brown’s attorneys’ lack of diligence in gaining custo-
dy of his documented history of chronic schizophrenia
(Menard). The court simply stated that the quantum of
evidence submitted was insufficient to conclude that he
was unfit to stand trial. The Illinois Supreme Court denied
leave to appeal.
After being spun around in the Illinois state court sys-
tem for three years, Brown (and his Northwestern Uni-
versity Law Center attorneys) then wisely turned to the
federal courts for relief, filing a petition under 28 U.S.C.
7
The long-term prognosis of schizophrenia varies. “In general,
one-third of [persons with schizophrenia] achieve significant and
lasting improvement, one-third achieve some improvement with
intermittent relapses and residual disability, and one-third
experience severe and permanent incapacity.” The Merck Manual
of Medical Information 437 (Robert Berkow, M.D., ed., 1997).
No. 01-2326 21
§ 2254 in the Northern District of Illinois, arguing that:
(1) he was denied his Sixth Amendment right to effective
assistance of counsel by his attorneys’ failure to adequate-
ly investigate his mental health dealing with the question
of his fitness to stand trial, his sanity at the time of the
offense, and as a mitigating factor in his sentencing; and
(2) his Fourteenth Amendment due process rights were
violated because he went to trial when he was mentally
unfit. The district court held that the Illinois Court of
Appeals reasonably decided these issues against Brown
and denied the petition. Brown appeals.
II. ISSUES
Brown initially argues in his habeas appeal that his trial
attorneys were ineffective for at least two reasons: (1)
their lack of diligence in investigating his history of mental
illness even after they had been made aware of it; and
(2) their failure to bring his history of mental illness to the
state trial court’s attention. Brown alleges that his counsel
failed to unearth several important facts crucial to his
defense; namely, that he had in recent vintage been diag-
nosed twice as suffering from chronic schizophrenia, that
he had in fact been prescribed anti-psychotic medication
for this illness, and that he had been treated and confined
in the psychiatric unit at Menard from 1986 to 1988.
Brown argues that his trial attorneys’ failure to act dili-
gently prejudiced him because it precluded him from:
(1) receiving a proper competency hearing; (2) raising an
insanity defense; and (3) arguing that he should receive
a more lenient sentence in light of his mental illness.
Brown also claims that he was denied his Fourteenth
Amendment due process right because he was tried and
convicted when he was mentally incompetent to stand trial.
22 No. 01-2326
III. ANALYSIS
A. Standard of Review
Under the Anti-Terrorism and Effective Death Penalty
Act (AEDPA), a state prisoner who files for a writ of habe-
as corpus must establish that the state court proceedings:
(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S.
362, 412 (2000); Ellsworth v. Levenhagen, 248 F.3d 634,
638 (7th Cir. 2001). A state court’s decision is “contrary to”
clearly established federal law “if the state court applies
a rule that contradicts the governing law set forth” by the
Supreme Court or “confronts a set of facts that are materi-
ally indistinguishable from a decision of [the Supreme]
Court and nevertheless arrives at a result different from
[Supreme Court] precedent.” Williams, 529 U.S. at 405-06.
With respect to the “unreasonable application” prong, the
petitioner must demonstrate that the state court iden-
tified the correct governing legal rule but unreasonably
applied it to the facts of the case. Id. at 407; Matheney v.
Anderson, 253 F.3d 1025, 1041 (7th Cir. 2001); Washington
v. Smith, 219 F.3d 620, 628 (7th Cir. 2000).
Although state court legal conclusions, as well as mixed
questions of law and fact, are before us under the de novo
standard, that standard is also tempered by AEDPA’s
deferential constraints: the “criterion for assessing the
reasonableness of a state court’s application of Supreme
Court case law, pursuant to § 2254(d)(1), is whether the
determination is at least minimally consistent with the
No. 01-2326 23
facts and circumstances of the case.” Sanchez v. Gilmore,
189 F.3d 619, 623 (7th Cir. 1999) (quoting Sweeney v. Parke,
113 F.3d 716, 718 (7th Cir. 1997)). We can only con-
clude that the state court’s conclusions were not even
“minimally consistent” with the facts of this case, as we
have described at length above.
B. Ineffective Assistance of Counsel
In order to establish a claim for ineffective assistance
of counsel, a petitioner must demonstrate that: (1) his
attorney’s performance fell below an objective standard of
reasonableness; and (2) the attorney’s deficient perform-
ance actually prejudiced the petitioner. Strickland v. Wash-
ington, 466 U.S. 668, 687 (1984). With respect to the
“prejudice” prong of the Strickland test, the petitioner must
demonstrate that there is a reasonable probability that,
but for counsel’s error, the result of the proceeding would
have been different. Id. at 694. A reasonable probability is
a “probability sufficient to undermine confidence in the
outcome.” Id.
1. The Objective Reasonableness of Counsels’ Actions
Attorneys have a professional obligation to conduct
“reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” Strick-
land, 466 U.S. at 691 (emphasis added). The duty to
investigate derives from counsel’s basic function, which is
“ ‘to make the adversarial testing process work in the
particular case.’ ” Kimmelman v. Morrison, 477 U.S. 365,
384 (1986) (quoting Strickland, 466 U.S. at 690). “Because
that testing process generally will not function prop-
erly unless defense counsel has done some investiga-
tion into the prosecution’s case and into various defense
strategies, [the Supreme Court has] noted that ‘counsel has
24 No. 01-2326
a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.’ ” Id. (quoting Strickland, 466 U.S. at 691).
“Review of the first prong [of the Strickland test] con-
templates deference to strategic decision making . . . .”
Williams v. Washington, 59 F.3d 673, 679 (7th Cir. 1995)
(emphasis added). Ordinarily when an attorney articu-
lates some strategic reason for a decision, we will defer
to that choice. Strickland, 466 U.S. at 690-91; Stewart v.
Gramley, 74 F.3d 132, 135 (7th Cir. 1996); Montgomery v.
Petersen, 846 F.2d 407, 413 (7th Cir. 1988). At the same
time, we realize that it is not the role of a reviewing
court to engage in a post hoc rationalization for an at-
torney’s actions by “construct[ing] strategic defenses that
counsel does not offer” or engage in Monday morning
quarterbacking. Harris v. Reed, 894 F.2d 871, 878 (7th
Cir. 1990).
It is often times a reasonable exercise of professional
judgment to limit or terminate further investigation when
counsel determines that a particular investigation would
be fruitless. See Hall v. Washington, 106 F.3d 742, 749
(7th Cir. 1997). On the other hand, where “it will be
apparent from the evidence concerning the circum-
stances of the crime, from conversation with the defen-
dant, or from other sources of information not requiring
fresh investigation, that the defendant has some mental
or other condition that will repay further investigation . . .
then the failure to investigate will be ineffective assis-
tance.” Stewart, 74 F.3d at 135; accord Brewer v. Aiken,
935 F.2d 850, 857-58 (7th Cir. 1991). “This does not mean
that only a scorch-the-earth strategy will suffice, but it
does mean that the attorney must look into readily avail-
able sources of evidence.” Hall, 106 F.3d at 749 (emphasis
added). In our assessment of counsel’s actions, we eval-
uate counsel’s conduct from the perspective at the time
the decision was made to forgo the investigation. See
Williams, 59 F.3d at 680.
No. 01-2326 25
“Where the record establishes that counsel had reason to
know, from an objective standpoint, that a possible de-
fense, such as insanity, was available, failure to investigate
fully can constitute ineffective assistance of counsel.” Jones
v. Page, 76 F.3d 831, 841 (7th Cir. 1996) (quotation omitted)
(emphasis added). Further, we have previously held that
it may constitute ineffective assistance if, without a legiti-
mate explanation, counsel fails to pursue a competency
hearing when counsel has a reasonable belief as to the
client’s competence to stand trial, especially when that
attorney initially acts upon that belief by requesting an
investigation into the client’s mental health. Matheney, 253
F.3d at 1040.
The Illinois Appellate Court, in its August 31, 1999 or-
der affirming the trial court’s dismissal of Brown’s sec-
ond post-conviction petition, somehow, someway charac-
terizes Kozlowski’s and Palmer’s lack of action in obtain-
ing Brown’s medical records as a conscious, tactical strata-
gem that an investigation of his past history of psychiatric
problems would not be beneficial to his defense or of use
at sentencing. The court surmises that Kozlowski’s and
Palmer’s performances were objectively reasonable because,
under the circumstances, “there was no compelling basis
or reason for counsel to further investigate defendant’s
mental condition,” despite these facts: (1) Kozlowski had
been informed that Brown had received treatment for men-
tal illness while he was at Menard; (2) Kozlowski had told
the court there was “certainly an issue of sanity” in Brown’s
case and that she had “questions” about Brown’s competency
because of the difficulty she had communicating with him
and because of the incident in which Brown had yelled
at her law clerk; (3) Kozlowski knew she had not received
Brown’s mental health records that she had requested from
Menard; (4) Palmer, Brown’s other public defender, had
observed first-hand Brown’s uncontrolled and irrational
outburst at trial; (5) Palmer had moved for a psychiatric
26 No. 01-2326
evaluation shortly after the trial’s completion; and (6)
Palmer knew or should have known that Brown’s record
reflected his two-year confinement in the Menard psychiat-
ric unit while being treated for chronic schizophrenia.
The Illinois Appellate Court pointed to several factors
to support its ruling: (1) Kozlowski’s statement in her
affidavit that Brown had been cooperative, coherent, and
not delusional in his dealings with her; (2) Kozlowski was
unaware of “the specific nature of any problem” with
Brown’s mental health; (3) there was “no evidence” that
Brown had experienced mental problems since his re-
lease from prison; and (4) Palmer had averred that
Brown was “lucid and coherent at all times” [sic]. In
reasoning that there was nothing to alert Kozlowski or
Palmer to Brown’s mental illness, the Illinois court makes
no mention of the following incontrovertible facts:
(1) Kozlowski had been specifically informed by an-
other attorney who had formerly represented Brown
(i.e., Geraghty) that Brown had been diagnosed as suf-
fering from a mental illness (chronic schizophrenia);
(2) Kozlowski had been informed by this same attor-
ney that Brown had once been found “unfit for trial”
and that Brown had been taking “large doses” of anti-
psychotic medication to treat his chronic schizophrenia;
(3) Kozlowski had informed the trial court of her own
perception, based on her own “difficulties” she had
communicating with Brown and that he had “yelled
at [her] law clerk,” that she had realized that there was
“something different” about Brown and that there was
“certainly an issue of sanity” in Brown’s case;
(4) Kozlowski had secured a court order for Brown’s
medical records from the psychiatric unit at Menard
but had failed to follow up on this subpoena and dis-
cover the reason it had not been complied with;
No. 01-2326 27
(5) Palmer witnessed Brown’s bizarre and uncontrolled
outburst at trial, and thought enough of it to raise it
as an issue before the judge at sentencing; and
(6) Palmer either knew or should have known about
Menard’s inaction on the subpoena from Kozlowski, his
colleague and fellow public defender.
Based on the record before us, we are convinced that
the Illinois Appellate Court’s application of Strickland to
the facts of Brown’s case was not only unreasonable, but
also inaccurate. Indeed, the Illinois court’s conclusion is
not only incompatible with the record before us, but a
reasonable reading of the transcript reveals that precise-
ly the opposite is true. The record is replete with facts
that establish that Brown’s counsel made a strategic deci-
sion to initiate an investigation into Brown’s psychiatric
condition: (1) Kozlowski represented and emphasized to
the trial court that “there was certainly an issue of sanity”;
(2) she was informed by Brown’s former counsel (a North-
western University Law School faculty member) that he
not only had a history of psychiatric problems and treat-
ment, but had once been found unfit to stand trial; (3) she
had difficulty communicating with Brown during the pre-
trial period; (4) she requested a continuance, on the morn-
ing Brown’s trial was scheduled to commence, so that she
could investigate Brown’s psychiatric history; and (5) she
subpoenaed Brown’s prison medical records and there-
after received a court order to compel the production of
Brown’s psychiatric records. The Illinois Appellate Court
for some reason saw fit neither to give us the benefit of
its reasoning or to refer to the unfortunate case history
discussed above in its conclusion that Kozlowski made a
strategic decision that an investigation into Brown’s men-
tal health would be fruitless.
Attorneys have an obligation to explore all readily avail-
able sources of evidence that might benefit their clients.
28 No. 01-2326
Hall, 106 F.3d at 749. In the case at hand, both Kozlow-
ski and Palmer had “readily available sources” of informa-
tion (e.g., Brown’s medical records) that would have estab-
lished that Brown had been, on two separate occasions,
previously diagnosed as suffering from a serious psychiat-
ric illness, chronic schizophrenia, that caused him to
hallucinate and suffer from delusions of paranoia. We have
held in the past that where a defense attorney has re-
ceived information from a reliable source that his client
has had a history of psychiatric problems, but failed to
adequately investigate this history, counsel failed to pro-
vide effective assistance. Brewer v. Aiken, 935 F.2d 850, 857-
58 (7th Cir. 1991); Eddmonds v. Peters, 93 F.3d 1307, 1325-
26 (7th Cir. 1996) (Flaum, J. concurring). At least six of
our sister circuits have arrived at the same conclusion.
See Seidel v. Merkle, 146 F.3d 750, 755-56 (9th Cir. 1998);
Williamson v. Ward, 110 F.3d 1508, 1517-18 (10th Cir.
1997); Antwine v. Delo, 54 F.3d 1357, 1367-68 (8th Cir.
1995); Genius v. Pepe, 50 F.3d 60, 61 (1st Cir. 1995);
Bouchillon v. Collins, 907 F.2d 589, 597-98 (5th Cir. 1990);
Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989);
Hooper v. Garraghty, 845 F.2d 471, 474-75 (4th Cir. 1988);
Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th Cir. 1987).
We are convinced that it was abundantly clear from the
evidence in the record and available to Brown’s attorneys
at the time of trial that Brown had more than a mere
exposure to mental health professionals, but rather had
a prolonged and documented history of severe mental
illness, even to the point of necessitating confinement
from 1986 through 1988. Thus, they had a professional ob-
ligation to do an in-depth investigation into their client’s
deep-seated psychiatric problems. Even though they
might not have known the precise nature or clinical diag-
nosis of Brown’s illness, both of Brown’s public defenders
certainly had a legal and an ethical obligation to explore
and investigate completely the nature and extent of his
No. 01-2326 29
illness, not to mention the reasons why the prison had
failed to send Brown’s medical records. It is clear that
at least Kozlowski had actual, and not simply construc-
tive, notice—from more than one source—of the possibility
that Brown had been suffering from psychiatric illness
both from her interaction with him as well as the informa-
tion she gained from her conversation with Geraghty.
Indeed, Kozlowski informed the court that she had diffi-
culty communicating with her client and that her own
law clerk had been “yell[ed] at” by Brown. Based on the
totality of her knowledge of Brown’s mental condition,
Kozlowski represented to the state trial court that she
believed Brown’s mental condition was a serious enough
issue that she certified to the court in her statement that
there was “certainly an issue of sanity.” In addition, she
explicitly expressed concern to the trial judge that Brown
may have been “off his medication . . . at the time the
[robbery] occurred.” Finally, as we have made abundant-
ly clear in Part I, ante, Kozlowski believed Brown’s men-
tal condition to be of sufficient importance and of such
severity that she saw fit to place her credibility on the line
with the state trial court by requesting (and receiving)
a continuance for further investigation on the morning
the case was originally set for trial. Similarly, Palmer
believed Brown’s mental condition was enough of an
issue to raise it, albeit halfheartedly, before the sentenc-
ing judge.
Despite these legitimate concerns, neither Kozlowski nor
Palmer saw fit to speak to Brown’s family about his past
history (of possible crimes, mental illness, or educational
background, for instance), much less conduct a further
investigation that would certainly be considered rea-
sonable under the circumstances. Brown’s attorneys re-
quested by subpoena his medical records from Menard
and thereafter proceeded to trial without this informa-
tion nor inquiring why Menard had not complied with the
30 No. 01-2326
court’s order. Kozlowski’s affidavit offers no explanation
as to why, after expressing her sincere concern about
her client’s condition in open court regarding his sanity to
the trial judge and subpoenaing his medical records, she
proceeded to abandon her interest in the medical records.
The Illinois Appellate Court, in an attempt to justify
Kozlowski’s inaction, points to her affidavit that stated
that she believed Brown “at all times . . . was lucid and
coherent.” Kozlowski’s self-serving affidavit, submitted
long after the trial and after Brown had subsequently
filed numerous challenges to his conviction alleging that
her representation was ineffective and therefore a viola-
tion of his constitutional rights, is not worthy of any cre-
dence because it is contradicted by the record detailing her
on the record statements and lack of action during her
inadequate representation of the defendant. For example,
Kozlowski’s unconvincing statement that Brown was “at all
times . . . lucid and coherent” fails to shed any light up-
on the question of why she failed to follow through with
the investigation she launched to a conclusion. Further-
more, she fails to explain why she went so far as to repre-
sent to the trial judge that she had trouble communicat-
ing with him and stated that he had yelled at her law
clerk. If we are to put credence in Kozlowski’s affidavit
that she truly believed Brown was “at all times . . . lucid
and coherent,” why did she urge the court to delay the
trial in order that she might obtain his medical records
so that she could address the “certain[ ] . . . issue of sanity”?
In its attempt to justify Palmer’s inaction, the Illinois
Appellate Court actually attributes Kozlowski’s statement
to Palmer. In the order dated August 31, 1999, affirming
the trial court’s dismissal of Brown’s amended post-con-
viction petition, the court wrote that Palmer swore in his
affidavit that Brown was “lucid and coherent at all times.”
Palmer was considerably more circumspect in his affidavit,
stating only that Brown was “lucid and coherent at all
No. 01-2326 31
times during my conversations with him.” We cannot
support the conclusion of the Illinois Court of Appeals—
on the critical issue of what Brown’s attorneys knew about
his mental state and when they knew it—as it is based
on faulty information, provided by Brown’s own public de-
fender lawyers.
Based on the record before us, we are compelled to
conclude that counsel’s performance in the case before us
was deficient. Kozlowski had knowledge from a very reli-
able source—a Northwestern Law School professor who
had previously represented Brown—that her client had
received treatment for a mental illness, including large
doses of anti-psychotic medication. Counsel also had rea-
son to believe that based on a comparison of the victim’s
and the defendant’s versions of events (in the police state-
ments at trial) that he might have suffered from para-
noia and hallucinations at the time of the crime from
his recounting of the episode. Finally as was made clear
in Part I, ante, both Kozlowski and Palmer represented
to the judge that they believed that insanity was a poten-
tial defense or mitigating factor.
Despite these concerns, counsel inexplicably abandoned
their investigation and failed to articulate any strate-
gic reason for the abandonment of the investigation into
Brown’s mental history. There is no evidence in the rec-
ord that either public defender subsequently spoke with
Brown’s family members (about his mental health his-
tory or education) or his treating or examining doctors.
We conclude that this failure to investigate adequately
and discover Brown’s documented history of schizophrenia
and treatment fell below an objectively reasonable stan-
dard of performance. Indeed, Kozlowski’s abandonment
of her client’s interest was exemplified by her failure to:
(1) follow through on the investigation that she initiated;
(2) provide her replacement counsel with even the barest
of details regarding Brown’s mental condition; or (3) en-
32 No. 01-2326
ter a defense of not guilty by reason of insanity. Similarly,
Palmer’s failure to demand action on the subpoena and
to renew his request for a second psychiatric examina-
tion after Brown’s courtroom outburst certainly fell be-
low an objectively reasonable standard of performance.
Kozlowski’s and Palmer’s lack of diligence more than
demonstrates that Brown was not represented in a profes-
sionally competent manner. We hold that the Illinois
Appellate Court’s contrary conclusion is an unusual and
an unreasonable application of Strickland to the facts of
this case.
2. Prejudice
Having found that the performance of Brown’s counsel
was deficient, we turn now to whether Brown was preju-
diced by the error. In order to establish that he was preju-
diced by counsel’s failure to investigate his mental condi-
tion, Brown must demonstrate that “there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been dif-
ferent.” Strickland, 466 U.S. at 694.
Brown’s argument is that the failure of his trial coun-
sel to supply the court and court-appointed psychiatrists
with available documentation of his psychiatric illness
prejudiced his defense by providing the trial judge with
less than reliable information, thereby contributing to
the trial judge’s rendering a finding of law based on inac-
curate conclusions regarding his competency and sanity.
We are at a loss to understand the Illinois Court of Ap-
peals’ stated reasoning that “[e]ven if defense counsel had
obtained the prison records, it does not appear there is a
reasonable probability the result of the proceedings would
have been different . . . [because] [t]here is . . . no evidence
that if Dr. Kaplan had reviewed the records, he would
have altered his fitness finding” (emphasis supplied). We
No. 01-2326 33
are well aware that a person suffering from chronic schizo-
phrenia may have certain periods of lucidity and thus
appear perfectly normal at one moment while suffering
from delusions of paranoia or hallucinating at another.
Indeed, it is the imprecise and imperfect nature of the
science known as psychiatry that makes a review of the
past available psychiatric records an essential part of an
evaluation of a defendant’s competency to stand trial. See,
e.g., Randy Borum & Thomas Grisso, Establishing Stan-
dards for Criminal Forensic Reports: An Empirical Analy-
sis, 24 Bull. Am. Acad. Psychiatric & L. 297 (1996) (psychi-
atric history is an “essential” element in a competency
evaluation); Daniel W. Shuman, Psychiatric & Psycholog-
ical Evidence § 11.08 (2d ed. 2001) (sources of informa-
tion to consider include other psychiatrists or psycholo-
gists who have diagnosed or treated the defendant, the
defendant’s family and friends, etc.); Kirk Heilbrun, et al.,
The Use of Third-Party Information in Forensic Assess-
ments: A Two State Comparison, 22 Bull. Am. Acad.
Psychiatry & L. 399 (1994) (the person’s mental health his-
tory is among the most important sources of third-party
information in forensic assessments). The Illinois appeals
court, however, failed to explain adequately the basis of
its reasoning. We think it is obvious that a psychiatrist’s
diagnosis, especially when dealing with a chronic schizo-
phrenic, must necessarily rely heavily on the patient’s
past psychiatric history, family history, criminal activity,
and medical records. See, e.g., Drope v. Missouri, 420 U.S.
162, 180 (1975); Parkus v. Delo, 33 F.3d 933 (8th Cir. 1994).
The Illinois Appellate Court’s analysis is summary in
nature, in that it fails to provide sufficient explanation for
its conclusion, and we are convinced that the Illinois
court’s cursory dismissal of Brown’s argument is a most
unfortunate and an unreasonable application of the Strick-
land prejudice standard. Dr. Kaplan based his opinions
on but one single interview with Brown, his review of
34 No. 01-2326
Dr. Rabin’s similarly inadequate report, and his review of
the police report documenting Brown’s arrest. Neither Dr.
Kaplan nor Dr. Rabin saw fit to interview and have the
benefit of the observations of Brown’s family members
(unlike Dr. Ferrell), let alone the unequivocal opinions of
two psychiatrists, one of whom had treated Brown for a
period of nearly two years, that Brown had been diag-
nosed with chronic schizophrenia and suffered from symp-
toms that included auditory hallucinations and paranoia.
We are convinced that the glaring absence of even a
minimal investigation into Brown’s medical history clear-
ly affected the validity and thus the utility of the findings
of the Psychiatric Institute doctors. The doctors there
failed to investigate Brown’s assertions of claims of mental
illness in order to be able to corroborate them or cast them
aside. Though his case history was lacking, the examina-
tions submitted to the court mistakenly suggest that Brown
was someone who made a fictitious claim of suffering
from mental illness, when in fact Brown had a long-stand-
ing, well-documented history of suffering from chronic
schizophrenia. These conclusions are unsubstantiated, un-
accompanied as they were by the readily available docu-
mentation of Brown’s psychiatric history. Certainly a pru-
dent psychiatrist, in the proper exercise of his professional
obligations to conduct a thorough mental exam, would
have obtained and reviewed the opinions of the two
other examining psychiatrists who had evaluated Brown,
and perhaps at least spoken with Brown’s family mem-
bers (as did Dr. Ferrell) to evaluate whether he had a
history of acting out. It is reasonable to assume that Dr.
Vallabhaneni’s diagnosis of Brown as suffering from chron-
ic schizophrenia, including symptoms of paranoia and
hallucinations, would have shed light upon the bizarre
set of facts surrounding the crime (in which Brown be-
lieved he was being followed by the victim and was about
to be assaulted by him) and thus affected Dr. Kaplan’s
No. 01-2326 35
diagnosis. Dr. Vallabhaneni’s diagnosis would certainly
have helped to explain Brown’s conduct and demeanor
with his counsel Kozlowski, Palmer, and the court itself.
In short, we are convinced that Dr. Kaplan’s lack of in-
formation concerning Brown’s medical history renders his
opinions on Brown’s competency and sanity useless and
unreliable.
Similarly, because of the failure of attorneys Kozlowski
and Palmer to discover and to bring Brown’s mental
problems and medical history to the court’s attention, his
trial and sentencing hearing were conducted without
the benefit of the knowledge of the severity of his mental
condition. See Drope, 420 U.S. at 176-77. In the case be-
fore us, the trial judge’s comments during sentencing re-
veal the prejudice that flowed from Brown’s attorneys’
failure to provide the court with evidence of his schizo-
phrenic history and the incomplete report provided by
the probation officer. The trial judge went so far as to
describe Brown as a “pathetic individual,” who “could have
overcome” his “pathos” “a long time ago” if he had “made
some effort” to do so. The judge further stated that Brown
had “virtually no hope for rehabilitation,” and sentenced
him to the maximum term of imprisonment permitted un-
der Illinois law (30 years).
We disagree with the Illinois Appellate Court’s conclu-
sion that Brown suffered no prejudice from counsel’s er-
ror, for we are of the opinion that the prejudice is clear
and readily apparent. Because of Brown’s attorneys’ fail-
ure to present evidence of his mental condition, the court
admitted, without even a whisper of an objection from
counsel, the finding of Dr. Kaplan that Brown was compe-
tent to stand trial and sane at the time he committed
the crime. It should be pointed out that Brown’s trial
attorney (Palmer) had ample opportunity to make a rec-
ord of insisting upon a competency hearing had he pre-
sented evidence (as the attorneys from the Northwestern
36 No. 01-2326
Legal Clinic have properly seen fit to do) that Brown had
in the past suffered and probably was now suffering from
chronic schizophrenia, along with symptoms of paranoia
and hallucinations, and that he had also evidently failed
to take medication to remedy his condition for at least
two years. Illinois law requires that courts conduct com-
petency hearings whenever “a bona fide doubt of the de-
fendant’s fitness is raised.” 725 Ill. Comp. Stat. 5/104-11.
Certainly the medical records confirm Brown’s medical
problems, and those records would raise a “bona fide doubt”
regarding his competence. Further, Brown’s attorneys
might very well have found it probable (and certainly
had an ethical and legal obligation to explore this possibil-
ity)8 to prevail on an insanity defense, given Dr. Ferrell’s
conclusion that “all decisions Mr. Brown made while off
his medication should indeed be viewed as the decisions
of an irresponsible, unreasonable, and illogical man.”
We understand that psychiatry is an imperfect science
at best. However, Strickland does not require absolute
certainty—it only requires a probability sufficient to un-
dermine confidence that the result of the proceeding is
reliable. Strickland, 466 U.S. at 694. The failure of the
public defenders, the doctors, the probation officer, and
the state courts in the handling of this case of an indi-
gent and mentally ill defendant not only “undermine[s]
confidence” in the reliability of the result; it might well
signal a system that is in need of review and repair. Given
Brown’s extensive and well-documented battle with
chronic schizophrenia, as well as Dr. Ferrell’s report char-
acterizing Brown’s crime as demonstrative of a “lack
of logical, cohesive thinking” and the product of “the
thought-distorting effects of schizophrenia,” we refuse to
8
Rule 1.3 of the Illinois Rules of Professional Conduct requires
lawyers to “act with reasonable diligence and promptness in rep-
resenting a client.”
No. 01-2326 37
countenance the appellate court’s conclusion that the
result of Brown’s trial “would not have been different” had
trial counsel taken the minimal time to secure his men-
tal health records and properly inform the court of
Brown’s condition.
We conclude that Brown was prejudiced by his counsel’s
failure to investigate (e.g., talking to his family, secur-
ing his prison medical records), to request a hearing to de-
termine his competency to stand trial, and to consider
seriously the question of whether to enter a plea of not
guilty by reason of insanity. The Illinois Court of Appeals’
decision to the contrary is an unreasonable application
of the Strickland standard.
IV. CONCLUSION
This case is a striking example of a legal system that
processed this defendant as a number rather than as a
human being; it signals a breakdown of a process that
might very well be in need of review, adjustment, and re-
pair. Brown’s psychiatric illness was not given so much
as a sideways glance by the parties involved. Not only
did Brown’s public defender trial attorneys drop the ball;
so did the court-appointed mental health doctors (a psy-
chologist and a psychiatrist) and probation officer, all of
whom failed to conduct even a sufficient inquiry into his
family background and extensive medical history. As a
result, the state trial court proceeded without any aware-
ness of his condition. We have a record before us that
mandates—in the interest of justice—the conclusion that
Brown was denied his Sixth Amendment right to effective
assistance of counsel on the grounds that his counsels’
failure to investigate his history of mental illness preju-
diced the outcome of his trial. In so doing, we find it
unnecessary to address Brown’s claim that he was denied
his Fourteenth Amendment due process right because he
38 No. 01-2326
was tried and convicted when he was not competent to
stand trial.
We REVERSE the decision of the district court and
REMAND with directions to GRANT the writ of habeas
corpus unless the State of Illinois elects to re-try Brown
within a reasonable time to be fixed by the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-4-02