Scott Schmidt v. Brian Foster , 891 F.3d 302 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1727
SCOTT SCHMIDT,
Petitioner-Appellant,
v.
BRIAN FOSTER,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-CV-1150 — Charles N. Clevert, Jr., Judge.
____________________
ARGUED JANUARY 4, 2018 — DECIDED MAY 29, 2018
____________________
Before WOOD, Chief Judge, and HAMILTON and BARRETT,
Circuit Judges.
HAMILTON, Circuit Judge. Petitioner Scott Schmidt mur-
dered his wife, Kelly Wing-Schmidt. He admitted the murder
but tried to rely on the state-law defense of “adequate provo-
cation” to mitigate the crime from first- to second-degree
homicide. A state trial judge denied Schmidt the assistance of
his counsel while the judge questioned Schmidt in a pretrial
2 No. 17-1727
hearing on that substantive issue. Under law clearly estab-
lished by the Supreme Court of the United States, the eviden-
tiary hearing on that substantive issue was a “critical stage”
of Schmidt’s prosecution. By denying Schmidt the assistance
of counsel in that critical stage, the state court violated his
Sixth Amendment right to counsel.
The Sixth Amendment guarantees the accused in a crimi-
nal case “the Assistance of Counsel for his defence.” Because
“an unaided layman” has “little skill in arguing the law or in
coping with an intricate procedural system,” the Supreme
Court has long held that the right to counsel extends beyond
the trial itself. United States v. Ash, 413 U.S. 300, 307 (1973).
Criminal prosecutions involve “critical confrontations” be-
fore trial “where the results might well settle the accused’s
fate.” United States v. Wade, 388 U.S. 218, 224 (1967). The Sixth
Amendment therefore guarantees defendants “the guiding
hand of counsel” at all “‘critical’ stages of the proceedings.”
Id. at 224–25, quoting Powell v. Alabama, 287 U.S. 45, 69 (1932).
Since Schmidt admitted having murdered his wife, the
only substantive issue in the prosecution was whether he
acted under “adequate provocation,” which in Wisconsin
would mitigate homicide from first to second degree. The
prosecution opposed Schmidt’s intended defense, arguing be-
fore trial that he had failed to offer “some evidence” of prov-
ocation, which would be sufficient to shift the burden of per-
suasion to the state to disprove provocation beyond a reason-
able doubt. The trial court chose to address this critical sub-
stantive issue before trial.
After a hearing where counsel debated the defense’s writ-
ten summary of evidence of provocation, the trial court held
No. 17-1727 3
an unprecedented ex parte, in camera hearing. The judge al-
lowed Schmidt’s counsel to attend the hearing but, critically,
did not allow him to speak or participate. Instead, the judge
questioned Schmidt directly. After listening to Schmidt’s an-
swers, the judge ruled that Schmidt could not present the ad-
equate provocation defense at trial. A jury convicted Schmidt
of first-degree intentional homicide, and he was sentenced to
life in prison.
Schmidt sought post-conviction relief, and the Wisconsin
Court of Appeals held that the trial court did not violate
Schmidt’s Sixth Amendment right to counsel. That decision
was an unreasonable application of clearly established Su-
preme Court precedent guaranteeing counsel at all critical
stages of criminal proceedings, including whenever “poten-
tial substantial prejudice to defendant’s rights inheres in the
particular confrontation.” Wade, 388 U.S. at 227. Schmidt
therefore meets the stringent standards for habeas corpus re-
lief under 28 U.S.C. § 2254(d)(1). 1
I. Factual & Procedural Background
In April 2009, Schmidt shot his wife, Kelly Wing-Schmidt,
seven times. She died in their driveway. When police officers
1 The usual relief in such a case would be to order the State either to
release Schmidt or to retry him. A different remedy may be appropriate
here. In the district court, the State requested the option to ask the state
trial court to modify the judgment of conviction to second-degree inten-
tional homicide and to resentence Schmidt accordingly. In briefing in this
appeal, Schmidt says he agrees with that request. On remand, the district
court should consider that option, in addition to the usual choices of retrial
or release.
4 No. 17-1727
arrived, they found Schmidt standing by her body. He quickly
admitted he had shot her.
A. The Trial Court Proceedings
Wisconsin charged Schmidt with first-degree intentional
homicide. Schmidt never denied shooting and killing Kelly,
but he intended to argue at trial that he acted with “adequate
provocation.” In Wisconsin, adequate provocation is an af-
firmative defense that mitigates intentional homicide from
first to second degree for defendants who “lack self-control
completely at the time of causing death.” Wis. Stat. §§ 939.44;
940.01(2)(a). To be “adequate,” the provocation must be “suf-
ficient to cause complete lack of self-control in an ordinarily
constituted person.” § 939.44. If the defendant can produce
“some” evidence supporting adequate provocation before
trial, then the defendant may introduce evidence of the de-
fense at trial. State v. Schmidt, 824 N.W.2d 839, 843 (Wis. App.
2012), citing State v. Head, 648 N.W.2d 413, 439 (Wis. 2002). The
prosecution must then disprove the defense beyond a reason-
able doubt. Schmidt, 824 N.W.2d at 843, citing Head, 648
N.W.2d at 437–38.
Schmidt filed a pretrial motion disclosing that he would
present evidence of provocation through “false allegations,
controlling behaviors, threats, isolation, unfaithfulness, ver-
bal abuse and arguments.” Schmidt planned to present evi-
dence that his wife had abused him emotionally and physi-
cally throughout their marriage. He would have testified that
right before the shooting, he and Kelly had a heated argument
in which Kelly taunted him about an affair he had just discov-
ered, told him their children were not actually his, and threat-
ened to make up stories so that he would never see their chil-
dren again. According to Schmidt, he lost self-control and
No. 17-1727 5
shot his wife. The State objected to the evidence, arguing that
Schmidt’s disclosure lacked specificity and that the circum-
stances did not support an adequate provocation defense. The
State also argued that Schmidt did not clarify the timeframe
covered by his proposed evidence and that evidence dating
back too far would be irrelevant and prejudicial.
The court acknowledged the State’s concerns. Over
Schmidt’s objection, the court scheduled a hearing to deter-
mine whether Schmidt had met the some-evidence standard
and could present the defense at trial. Before the hearing,
Schmidt submitted two documents: an offer of proof summa-
rizing the testimony of twenty-nine potential witnesses and a
legal analysis of the provocation defense with a timeline of
events from 2004 through the 2009 shooting.
The evidentiary hearing began in court with Schmidt, his
lawyer, and the prosecutor present. The judge was not pre-
pared to decide on the paper submissions alone whether
Schmidt could meet the “some evidence” threshold for the
provocation defense. Schmidt’s lawyer objected to having to
expose his defense evidence before trial. The judge decided
that he should question Schmidt ex parte to assess the provo-
cation defense. Schmidt’s counsel agreed that if the court in-
tended to question Schmidt, it should do so in chambers out-
side of the prosecutor’s presence. The court then proposed to
the prosecutor that Schmidt’s counsel would attend the hear-
ing in chambers, but would “just be present” and “not saying
anything.” The prosecutor agreed. Schmidt’s counsel did not
object, but nobody asked Schmidt if he was willing to go for-
ward in this hearing, so critical to his fate, without the assis-
tance of his lawyer.
6 No. 17-1727
The trial judge, court reporter, Schmidt, and Schmidt’s
counsel proceeded to the judge’s chambers. The judge stated
that Schmidt “appears in person” and that “his attorney is
also present but is not participating in the hearing.” The court
then asked Schmidt an open-ended question about what was
on his mind when he shot Kelly. Schmidt gave the first of what
would be several rambling narrative responses:
The day I went over was April 17th. I hadn’t
slept in at least a week, week-and-a-half. And
I—it was like two days before that, I believe the
14th of April, the 14th or 15th of April I think it
was, that I found an e-mail on my work com-
puter from a—of a reservation for my wife and
a guy that she supposedly was a friend with that
worked for Gold Cross Ambulance. And I
found that when I was at the fire station. I knew
of him, up until that point, that they were
friends.
Um, I had been out of the house for a couple
of weeks. And I walked there. I went to the fire
station, and I walked up to the house, because I
knew there were some issues with, um, Kelly
had threatened to take—these aren’t my f’ing
kids, that if she saw me at the house that she
didn’t want—I wasn’t going to be part of the
kids’ lives anymore, our two youngest children.
I just had a feeling that she’d probably call the
cops if I pulled in the driveway. So I parked at
the station, Fire Station 6, over on Lightning,
and I walked to the house.
No. 17-1727 7
Actually, my main goal was, um, I had a job
to do. I was going to build a house for a retired
battalion chief up in Door County. And all my
tools, my job trailer, and everything was at our
house on JJ on Edgewood. I was at the time stay-
ing out at the lake—the lake house that I had—
had owned prior to us being married in Stock-
bridge. And there’s—I didn’t have any heat,
slept on the couch, there was no blankets. I
mean, it was—there were no dishes. I had—eve-
rything was—the house was empty. Gas was ac-
tually shut off because we—instead of paying
the bills there, I wanted to make sure the bills
were paid where the kids and Kelly were at … .
That first answer continued for fourteen transcript pages.
Thus began what the Wisconsin Court of Appeals called a
“rambling narrative” that spans thirty-five transcript pages.
Schmidt, 824 N.W.2d at 847. The trial court asked Schmidt the
same open-ended question about his mental state six times.
Each time Schmidt’s response was unfocused and confused
with irrelevant details.
Near the end of the questioning, the judge took a short
break for a telephone call. Schmidt’s lawyer asked if he could
talk to Schmidt. The judge responded that they should limit
discussion to reviewing the written offer of proof. After the
break, the judge asked Schmidt a few more questions before
ending the hearing. Later that day, the court orally announced
that “the circumstances that led to the death of Kelly Wing did
not involve a provocation” and denied Schmidt’s motion to
present the defense at trial, rejecting it conclusively.
8 No. 17-1727
B. Post-conviction Processes
A jury convicted Schmidt of first-degree intentional hom-
icide. 2 Schmidt moved for a new trial, arguing that he had
been denied his Sixth Amendment right to counsel and his
Sixth and Fourteenth Amendment right to present a defense.
The trial court denied the motion, concluding that Schmidt
had not met his burden of production to present the adequate
provocation defense. The trial court also concluded that
Schmidt was not denied counsel at the ex parte hearing be-
cause his counsel submitted the written offer of proof, made
an oral argument, and conferred with Schmidt during the re-
cess for the judge’s telephone call.
Schmidt appealed, and the Wisconsin Court of Appeals af-
firmed. The Court of Appeals found that Schmidt had not met
the some-evidence standard, though the court called it “a
close question.” The court found that the ex parte interrogation
was a valid exercise of the trial judge’s discretion under state
law. Turning to the Sixth Amendment question, the Court of
Appeals found that the ex parte hearing was not a critical stage
of the proceedings at which Schmidt was entitled to counsel.
The court also reasoned that the hearing was not adversarial
and that counsel was available to advise Schmidt. The court
did not reach Schmidt’s claim that the hearing violated his
right to present a defense. The Wisconsin Supreme Court de-
nied review.
Schmidt then sought habeas corpus relief in federal court,
raising the Sixth and Fourteenth Amendment claims. The dis-
trict court denied relief on both. The district court considered
2 The jury also convicted Schmidt of recklessly endangering safety and
bail-jumping. He does not challenge those convictions.
No. 17-1727 9
de novo Schmidt’s claim that he was denied the right to present
a defense and concluded that the Wisconsin evidence law did
not deprive him of that right because it protected a legitimate
interest and was not arbitrary or disproportionate. The court
next found that the deferential standard of review under the
Antiterrorism and Effective Death Penalty Act (AEDPA) gov-
erned the Sixth Amendment claim. See 28 U.S.C. § 2254(d).
The district court concluded that the Wisconsin Court of Ap-
peals decision was not contrary to or an unreasonable appli-
cation of Supreme Court precedent guaranteeing criminal de-
fendants counsel at all critical stages. The district court there-
fore denied habeas relief but granted a certificate of appeala-
bility on both issues.
II. Analysis
The Wisconsin Court of Appeals rejected Schmidt’s Sixth
Amendment claim on the merits, and the facts are not dis-
puted. Under AEDPA, a federal court therefore cannot grant
a writ of habeas corpus on that claim unless the state court
decision “was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). A state court’s decision is unreasonable if it cor-
rectly identifies the controlling Supreme Court precedent but
“unreasonably extends” that “legal principle” to “a new con-
text where it should not apply or unreasonably refuses to ex-
tend that principle to a new context where it should apply.”
Williams v. Taylor, 529 U.S. 362, 407 (2000). To obtain federal
relief, Schmidt must show that the state court decision was
not just incorrect but “objectively unreasonable.” Id. at 409–
10; accord, e.g., Woodford v. Visciotti, 537 U.S. 19, 24–25 (2002)
10 No. 17-1727
(per curiam). This standard is meant to be “difficult to meet.”
Harrington v. Richter, 562 U.S. 86, 102 (2011).
Even under this deferential standard, Schmidt is entitled
to a writ of habeas corpus. The state-court decision was an ob-
jectively unreasonable application of Supreme Court deci-
sions on the right to counsel. The ex parte hearing was a critical
stage of the proceeding. Schmidt was guaranteed “the guid-
ing hand of counsel” throughout it, see Powell, 287 U.S. at 69,
but he did not have that guidance because of the judge’s
ground rules for his inquisition of Schmidt, barring his coun-
sel from participating. Because we grant Schmidt’s petition
based on the violation of his right to counsel, we do not reach
his claim that the trial court also denied his right to present a
defense.
A. “Critical Stage”
The Sixth Amendment guarantees that in “all criminal
prosecutions, the accused shall enjoy the right” to “have the
Assistance of Counsel for his defence.” The Supreme Court
has long recognized that the right applies not only at trial but
also at all “critical stages” of the adversary process. The first
question in this case is the scope of the Supreme Court’s prec-
edents on what constitutes a “critical stage.”
A brief look at the history of the Sixth Amendment pro-
vides helpful context for understanding the scope of a defend-
ant’s right to counsel in pretrial proceedings. In United States
v. Wade, 388 U.S. 218 (1967), the Supreme Court explained:
The Framers of the Bill of Rights envisaged a
broader role for counsel than under the practice
then prevailing in England of merely advising
his client in ‘matters of law,’ and eschewing any
No. 17-1727 11
responsibility for ‘matters of fact.’ The constitu-
tions in at least 11 of the 13 States expressly or
impliedly abolished this distinction. Powell v.
State of Alabama, 287 U.S. 45, 60–65; Note, 73 Yale
L.J. 1000, 1030–1033 (1964). ‘Though the colonial
provisions about counsel were in accord on few
things, they agreed on the necessity of abolish-
ing the facts-law distinction; the colonists ap-
preciated that if a defendant were forced to
stand alone against the state, his case was fore-
doomed.’ 73 Yale L.J., supra, at 1033–1034. This
background is reflected in the scope given by
our decisions to the Sixth Amendment’s guaran-
tee to an accused of the assistance of counsel for
his defense. When the Bill of Rights was
adopted, there were no organized police forces
as we know them today. The accused con-
fronted the prosecutor and the witnesses
against him, and the evidence was marshalled,
largely at the trial itself. In contrast, today’s law
enforcement machinery involves critical con-
frontations of the accused by the prosecution at
pretrial proceedings where the results might
well settle the accused's fate and reduce the trial
itself to a mere formality. In recognition of these
realities of modern criminal prosecution, our
cases have construed the Sixth Amendment
guarantee to apply to ‘critical’ stages of the pro-
ceedings. The guarantee reads: ‘In all criminal
prosecutions, the accused shall enjoy the right
* * * to have the Assistance of Counsel for his de-
fence.’ (Emphasis supplied.) The plain wording of
12 No. 17-1727
this guarantee thus encompasses counsel's assis-
tance whenever necessary to assure a meaningful
‘defence.’
388 U.S. at 224–25 (footnotes omitted, emphasis added).
The Court has identified two historical reasons for the
right to counsel. First was the development of an “intricate
procedural system.” United States v. Ash, 413 U.S. 300, 307
(1973). As the Court explained:
A concern of more lasting importance was the
recognition and awareness that an unaided lay-
man had little skill in arguing the law or in cop-
ing with an intricate procedural system. The
function of counsel as a guide through complex
legal technicalities long has been recognized by
this Court. […] The Court frequently has inter-
preted the Sixth Amendment to assure that the
‘guiding hand of counsel’ is available to those in
need of its assistance.
Id. at 307–08. Second was the development of the public pros-
ecutor: “Another factor contributing to the colonial recogni-
tion of the accused’s right to counsel was the adoption of the
institution of the public prosecutor from the Continental in-
quisitorial system.” Id. at 308. “Thus, an additional motivation
for the American rule” that a criminal defendant is entitled to
counsel “was a desire to minimize imbalance in the adversary
system that otherwise resulted with the creation of a profes-
sional prosecuting official.” Id. at 309. An uncounseled de-
fendant could not be expected to argue his case, navigate the
rules of evidence, or articulate his defenses with the same skill
as an “expert adversary,” the prosecutor. Id. at 310.
No. 17-1727 13
Over time, the same became true of various pretrial steps
in prosecutions. With increasing frequency, defendants con-
fronted issues before trial that previously would have sur-
faced at trial—issues like articulating defenses or disputing
the admissibility of evidence. With the history of the Sixth
Amendment in mind, the Court has repeatedly applied the
right to counsel to these critical confrontations “that might ap-
propriately be considered to be parts of the trial itself,” that
is, steps when “the accused was confronted, just as at trial, by
the procedural system, or by his expert adversary, or by both.”
Id. at 310. The Court has called these confrontations “critical
stages.” See, e.g., Wade, 388 U.S. at 224; Hamilton v. Alabama,
368 U.S. 52, 53–54 (1961).
It is clearly established that criminal defendants are enti-
tled to counsel at all critical stages of the criminal process, and
the case law on which stages are critical is extensive. The State
relies here on Carey v. Musladin, 549 U.S. 70 (2006), which ex-
plained that “clearly established Federal law” under
§ 2254(d)(1) includes only the Supreme Court’s holdings, not
its dicta. Id. at 74. In Carey, the Court rejected a Ninth Circuit
decision for reading Supreme Court precedent at too high a
level of generality. Id. at 75–76. Wisconsin uses Carey to argue
that no clearly established federal law applies to this case be-
cause the Supreme Court has not held that a hearing like the
extraordinary ex parte, in camera hearing here is a critical stage.
AEDPA deference does not go so far. A few months after
deciding Carey, the Court clarified that AEDPA does not re-
quire “federal courts to wait for some nearly identical factual
pattern” before granting relief. Panetti v. Quarterman, 551 U.S.
930, 953 (2007), quoting Carey, 549 U.S. at 81 (Kennedy, J., con-
14 No. 17-1727
curring in judgment); see also Williams, 529 U.S. at 407 (hold-
ing that state courts can unreasonably apply clearly estab-
lished federal law to facts the Supreme Court has not consid-
ered). “Nor does AEDPA prohibit a federal court from finding
an application of a principle unreasonable when it involves a
set of facts ‘different from those of the case in which the prin-
ciple was announced.’” Panetti, 551 U.S. at 953, quoting Lock-
yer v. Andrade, 538 U.S. 63, 76 (2003).
What matters here is what the Supreme Court has done
and what it has said in deciding its many “critical stage”
cases, which we address next. Also, it is not surprising that
the Supreme Court has not considered an ex parte, in camera
hearing on a substantive issue quite like this one. “The very
premise of our adversary system of criminal justice is that par-
tisan advocacy on both sides of a case will best promote the
ultimate objective that the guilty be convicted and the inno-
cent go free.” United States v. Cronic, 466 U.S. 648, 655 (1984),
quoting Herring v. New York, 422 U.S. 853, 862 (1975). In this
case the trial court improvised an unprecedented procedure
that both abandoned that “very premise of our adversary sys-
tem of criminal justice” to question the defendant directly and
prohibited defense counsel from participating. While trial
judges have discretion to question witnesses directly, this in-
quisitorial procedure in which defense counsel is silenced is
not compatible with the American judicial system. See Wil-
liams v. Wahner, 731 F.3d 731, 732–33 (7th Cir. 2013) (declaring
unlawful a federal judge’s practice of questioning prisoner-
plaintiff in ex parte hearing to decide material factual disputes
against the plaintiff, and comparing procedure to inquisitorial
procedures from European legal systems). As the Herring
Court explained further: “the right to the assistance of counsel
has been understood to mean that there can be no restrictions
No. 17-1727 15
upon the function of counsel in defending a criminal prosecu-
tion in accord with the traditions of the adversary factfinding
process that has been constitutionalized in the Sixth and Four-
teenth Amendments.” 422 U.S. at 857, quoted in Cronic, 466
U.S. at 656 n.15.3
1. Confrontation
Turning first to what the Court has actually done, as the
State conceded at oral argument, the Court has treated as a
“critical stage” every stage of the criminal process between
arraignment and appeal that addresses a substantive issue or
risks loss of procedural rights. As examples, the Court has rec-
ognized the following as critical stages: a preliminary hearing
at which defendant could cross-examine witnesses and other-
wise test the evidence against him; arraignments at which de-
fenses must be asserted; entry of a plea; pretrial identification
3 By “inquisitorial,” we “don’t mean it was modeled on the proce-
dures employed by the Inquisition.” Henderson v. Wilcoxen, 802 F.3d 930,
931 (7th Cir. 2015). We refer to the “system of proof-taking used in civil
law, whereby the judge conducts the trial, determines what questions to
ask, and defines the scope and the extent of the inquiry.” Inquisitorial Sys-
tem, Black’s Law Dictionary (10th ed. 2014). As the Supreme Court has ex-
plained: “What makes a system adversarial rather than inquisitorial is not
the presence of counsel … but rather the presence of a judge who does not
(as an inquisitor does) conduct the factual and legal investigation himself,
but instead decides on the basis of facts and arguments pro and con ad-
duced by the parties.” McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991).
Although many countries continue to use inquisitorial systems of fact-
finding, our Constitution establishes an adversarial system. Cf. Henderson,
802 F.3d at 931 (“In modern usage an inquisitorial hearing is a hearing in
open court in which the judge examines the parties to the suit rather than
leaving examination to the lawyers, as in our legal system, which is adver-
sarial rather than inquisitorial.”).
16 No. 17-1727
through an in-person line-up; pretrial interrogation by a gov-
ernment informant; sentencing hearings; and deferred sen-
tencing hearings that revoke probation. See Coleman v. Ala-
bama, 399 U.S. 1, 9 (1970) (plurality); id. at 11 (Black, J., concur-
ring) (preliminary hearing where defendant could test evi-
dence to avoid indictment and build record for trial); Hamil-
ton, 368 U.S. at 54 (arraignment where defenses can be “irre-
trievably lost, if not then and there asserted”); White v. Mary-
land, 373 U.S. 59, 60 (1963) (entry of plea); Moore v. Michigan,
355 U.S. 155, 156, 159 (1957) (entry of plea); Wade, 388 U.S. at
236–37 (pretrial in-person identification); Massiah v. United
States, 377 U.S. 201, 206 (1964) (pretrial interrogation); Town-
send v. Burke, 334 U.S. 736, 740–41 (1948) (sentencing); Mempa
v. Rhay, 389 U.S. 128, 137 (1967) (deferred sentencing and rev-
ocation of probation).
The sheer number and range of these cases show that the
right to counsel at “critical stages” is not narrow and fact-
bound. The Court has explained its decisions by focusing on
the consequences of the particular stage, and in particular on
consequences for the defendant’s ability to receive a fair trial.
In Wade, the Court summarized:
In sum, the principle of Powell v. Alabama
and succeeding cases requires that we scrutinize
any pretrial confrontation of the accused to de-
termine whether the presence of his counsel is
necessary to preserve the defendant’s basic right
to a fair trial as affected by his right meaning-
fully to cross-examine the witnesses against him
and to have effective assistance of counsel at the
trial itself. It calls upon us to analyze whether
potential substantial prejudice to defendant’s
No. 17-1727 17
rights inheres in the particular confrontation
and the ability of counsel to help avoid that prej-
udice.
Wade, 388 U.S. at 227. In Mempa v. Rhay, the Court summa-
rized its precedents as “clearly stand[ing] for the proposition
that” counsel is “required at every stage of a criminal pro-
ceeding where substantial rights of a criminal accused may be
affected.” 389 U.S. at 134. In Coleman v. Alabama, the Court
quoted the above passage from Wade and referred to it as a
“test” that the Court had consistently applied throughout its
critical-stage precedents. 399 U.S. at 8. And in Ash, the Court
stated that its “review of the history and expansion of the
Sixth Amendment counsel guarantee” demonstrated “that
the test utilized by the Court has called for examination of the
event in order to determine whether the accused required aid
in coping with legal problems or assistance in meeting his ad-
versary.” 413 U.S. at 313.
It is true that many of the Court’s “critical-stage” cases ad-
dress direct confrontations between the defendant and the
professional prosecutor, and that the prosecutor was not in
the room for the hearing at issue in this case. See, e.g., Cole-
man, 399 U.S. at 9 (preliminary hearing where defendant
could test prosecutor’s evidence before trial); Mempa, 389 U.S.
at 137 (deferred sentencing hearing where prosecutor argued
for revocation of probation). That is typically how proceed-
ings are held when the rules of adversarial proceedings are
followed, but the Supreme Court’s clearly established prece-
dent is not limited to adversarial confrontations where the
prosecution and/or police are literally in the room with the
accused. We cannot imagine that the Supreme Court would
tolerate a procedure in which the trial judge, without a valid
18 No. 17-1727
waiver of the right to counsel, took the defendant alone into
chambers for questioning on the record on any substantive is-
sue. The result is no different here, where the lawyer was
physically present but prohibited from speaking or otherwise
participating.
First, in Estelle v. Smith, 451 U.S. 454 (1981), the Court held
that a trial judge had violated the accused’s right to counsel in
a non-adversarial setting where the prosecutor was absent.
The judge “informally ordered” a psychiatrist to examine the
accused to determine competency to stand trial. Id. at 456–57,
457 n.1. The defendant was found competent to stand trial
and then found guilty at trial. At the penalty phase of the trial,
the judge then allowed the state to offer the contents of the
interview and the psychiatrist’s opinion to prove future dan-
gerousness. The defense lawyer had not been notified in ad-
vance that the psychiatric examination would take place, let
alone that it would include the issue of future dangerousness.
Id. at 470–71, 471 n.15. The accused did not have his assistance
in deciding whether to submit to the examination. Id. at 471.
The Supreme Court held (unanimously) that the judge’s non-
adversarial decision to order the psychiatric interview—with
only the accused and the psychiatrist present—was a critical
stage of the proceedings and that the accused had a right to a
lawyer in deciding whether to submit to it. Id. at 470–71. 4 Crit-
ically, the Court held that the defendant was entitled to coun-
sel’s advice before the interview itself, because it “follows log-
ically” from the Court’s “precedents that a defendant should
not be forced to resolve such an important issue ‘without the
4
The Court did not hold that the accused had a right to have his law-
yer present for the examination itself, but he had a right to the advice of
counsel in deciding whether to submit to it. 451 U.S. at 470 n.14.
No. 17-1727 19
guiding hand of counsel.’” Id. at 471, quoting Powell, 287 U.S.
at 69. Resolving that issue—whether to submit to the evalua-
tion—did not involve an in-person confrontation with the
prosecutor, the police, or any other agent of the state.
Similarly, in Geders v. United States, the Court found that
the defendant’s right to counsel had been violated when, dur-
ing trial, the judge ordered the defendant not to consult with
his attorney during an overnight recess. 425 U.S. 80, 81 (1970).
The trial itself, of course, is a stage in the criminal process
where the defendant has a right to counsel (and the Court
therefore did not need to engage in a critical-stage analysis).
But the overnight recess was not a formal part of the trial pro-
ceedings and did not occur in the courtroom or in the prose-
cutor’s presence. Yet the defendant did not lose his right to
counsel when he left the courtroom and the traditionally ad-
versarial setting. He required his counsel’s guidance over-
night to make tactical decisions in light of the proceedings
against him. Id. at 88–89, 91. Importantly, the Court did not
analyze the overnight recess as a separate stage that may or
may not be critical by itself. Underlying both Smith and Geders
is the recognition that the accused needs and is entitled to the
assistance of counsel in making choices throughout the pros-
ecution, regardless of whether the precise moment in ques-
tion is “adversarial” in the sense that the professional prose-
cution or police are literally in the room at the time.
More generally, the Court has repeatedly applied the “crit-
ical stage” analysis by focusing on the consequences the ac-
cused faces in the particular stage of the case, not necessarily
on whether the prosecution or police are in the room. That is
clear from the critical “or” in Ash: “This review of the history
and expansion of the Sixth Amendment counsel guarantee
20 No. 17-1727
demonstrates that the test utilized by the Court has called for
examination of the event in order to determine whether the
accused required aid in coping with legal problems or assis-
tance in meeting his adversary.” 413 U.S. at 313 (emphasis
added).
Confirming the importance of that “or” in Ash, the Court
has recognized as critical stages several proceedings that re-
quire defendants to make procedural decisions. In those
cases, it was the defendant’s inability to cope with the proce-
dural system—not any face-to-face confrontation with the
prosecutor—that drove the Court’s holdings. See, e.g., Hamil-
ton, 368 U.S. 52 (finding Alabama arraignment a critical stage
because the defendant had to assert or forfeit defenses, with-
out any mention of prosecutor or contested issues); White, 373
U.S. 59 (finding Maryland preliminary hearing a critical stage
because defendant had to enter a plea, without any mention
of prosecutor or contested issues); Smith, 451 U.S. 454 (finding
decision to submit to psychiatric evaluation on competence to
stand trial a critical stage, without any mention of prosecutor
or contested issues).
And this makes sense. When a defendant confronts a
purely procedural question—even outside of the courtroom
and outside of the prosecutor’s presence—he does so in re-
sponse to the adversary proceedings that the prosecution has
brought against him. One motivation for the right to counsel
“was a desire to minimize the imbalance in the adversary sys-
tem,” which recognizes that a layperson does not have the
same skill or knowledge necessary to navigate the law. Ash,
413 U.S. at 309 (emphasis added). After all, requiring an un-
counseled defendant to make a consequential procedural de-
cision can easily undermine the desired balance between the
No. 17-1727 21
prosecutor and the accused, prejudice the defense, and reduce
“the trial itself to a mere formality.” Wade, 388 U.S. at 224 (ex-
plaining that goal of right to counsel at critical stages is to pre-
serve the integrity of the trial).
By looking both at what the Supreme Court has done and
at what it has said, it is clear that an evidentiary hearing on a
contested substantive issue is a critical stage of the proceed-
ings. There is no reason to think the result is different when
the judge moves half of the hearing into chambers and elicits,
through the judge’s own questioning, the defendant’s rebuttal
to the prosecutor’s opposition. Against the weight of the
many cases finding pretrial stages were critical as long as the
accused might face serious consequences affecting the fair-
ness of the trial, the State has not identified any Supreme
Court case even suggesting, let alone holding, that a hearing
comparable to the one in this case was not a critical stage.
The Court has found stages not critical only when they are
non-adversarial and there is no risk that an accused might
make mistakes that a lawyer cannot cure before or at trial. In
Ash itself, for example, the Court distinguished between an
eyewitness identification by in-person lineup, which Wade
held is a critical stage, and a witness’s identification by look-
ing at a photographic array, which is not. 413 U.S. at 317. At a
line-up, the defendant is present and confronts either law en-
forcement or the prosecutor. Without counsel’s observation
and guidance, “there is a grave potential for prejudice” be-
cause the uncounseled defendant is unable to identify a sug-
gestive procedure and unlikely to be able to reconstruct a bi-
ased procedure at trial. Wade, 388 U.S. at 230–32, 236. A pho-
tographic array, by comparison, is only non-adversarial gath-
ering of evidence outside of the defendant’s presence. There
22 No. 17-1727
is “no possibility” that “the accused might be misled by his
lack of familiarity with the law or overpowered by his profes-
sional adversary.” Ash, 413 U.S. at 317. The Court reached a
similar conclusion in Gerstein v. Pugh when it found that the
probable cause determination, by itself, is not a critical stage.
420 U.S. 103, 120, 122 (1975). Probable cause is typically de-
cided “by a magistrate in a nonadversary proceeding on hear-
say and written testimony.” Id. at 120. It does not require the
defendant’s participation and its outcome cannot “impair de-
fense on the merits.” Id. at 122.
The Supreme Court has clearly established that the right
to counsel extends to a pretrial evidentiary hearing on a con-
tested, substantive issue, where an uncounseled defendant
risks decisive consequences for his prospects at trial. E.g.,
Coleman, 399 U.S. at 9 (plurality); id. at 11 (Black, J., concur-
ring); Wade, 388 U.S. at 227, 236–37. In this case, the Wisconsin
Court of Appeals correctly recognized the general rule that
the Sixth Amendment guarantees counsel at all critical stages.
But the court strayed in finding that the ex parte hearing was
not a critical stage in Schmidt’s case.
The state court’s observation that the ex parte, in camera
proceeding was not adversarial, in the sense that the prosecu-
tor was not in the room, thus missed the point. It unreason-
ably applied Supreme Court precedent and, frankly, ignored
reality in favor of a formalism that the Court has not adopted.
The ex parte, in camera hearing was not a distinct stage in
Schmidt’s case. It was part of the evidentiary hearing the court
held to address a substantive issue—the mitigating defense of
adequate provocation. That defense was certainly contested.
That is precisely why the judge held the hearing: to determine
whether the prosecution or defense had the better arguments
No. 17-1727 23
on the adequate provocation defense. The prosecution op-
posed admission of the evidence related to the defense, while
Schmidt argued that he had met the threshold showing for
admissibility. Schmidt presented part of his side of the case in
the judge’s chambers, but that fact makes no difference given
what the Supreme Court has held to be critical stages. There
is no question that the overall hearing was an adversary pro-
ceeding. Nothing in the Supreme Court’s extensive critical-
stage jurisprudence suggests that the hearing became any less
critical, or any less of a “trial-like confrontation,” when the
judge took the accused and his (silenced) lawyer into cham-
bers to question him about the facts supporting the defense.
In addition to confronting the prosecutor’s substantive ar-
guments on the disputed provocation defense, Schmidt
needed to navigate the “complex legal technicalities” of the
“intricate procedural system.” Ash, 413 U.S. at 307. He needed
to meet the burden of production that Wisconsin requires for
affirmative defenses like adequate provocation: the “some ev-
idence” threshold. If he met that burden at trial, the prosecu-
tor would bear the burden of persuasion and would have to
disprove the defense beyond a reasonable doubt. To show be-
fore trial that he had “some evidence” of adequate provoca-
tion, Schmidt needed to reveal only his best evidence. These
are not procedural concepts that a layperson—especially one
whose own fate is at stake—is likely to understand, let alone
execute. The transcript in this case shows as much. Schmidt’s
lack of understanding about the burden of production caused
him to disclose too much at this stage. In effect, Schmidt did
the prosecutor’s job for her and converted the ex parte, in cam-
era hearing into a mini-trial on the merits of his defense.
24 No. 17-1727
In sum, in this hearing conducted without his counsel’s
participation, Schmidt not only confronted a complex sub-
stantive and procedural question; he was also forced to de-
fend his position on the meaning of the procedural rule after
the prosecutor challenged him. This was a critical stage—in
this case, actually the most critical stage—of this prosecution.
The accused’s right to counsel in this inquisitorial hearing did
not depend on whether the prosecutor was in the room, or on
whether the judge’s tone of voice and phrasing of questions
were gentle or hostile. What mattered, under clearly estab-
lished Supreme Court precedent, is that Schmidt was con-
fronting the complex machinery of the criminal justice pro-
cess on the most critical, disputed, and substantive issue in
the case.
2. Potential for Prejudice
For a pretrial confrontation to be a critical stage, it must
also have the potential to prejudice the defendant and there-
fore undermine the integrity of the trial. Wade, 388 U.S. at 227.
The ex parte, in camera hearing had the potential to prejudice
Schmidt substantially. The state court’s conclusion to the con-
trary was unreasonable. “Fatal to Schmidt’s argument,” the
Wisconsin court reasoned, the hearing was “supplemental”
and “Schmidt had already submitted written offers of proof”
in support of his defense. The logic of that rationalization for
denying Schmidt assistance of counsel flies in the face of
clearly established Supreme Court precedent.
The Sixth Amendment analysis focuses on whether there
is a potential for prejudice given what or whom the uncoun-
seled defendant must confront and what counsel could do
later to fix the defendant’s mistakes. E.g., Ash, 413 U.S. at 313,
No. 17-1727 25
317; Coleman, 399 U.S. at 7 (plurality); id. at 11 (Black, J., con-
curring); Wade, 388 U.S. at 227. In this case, Schmidt was asked
to meet the burden of production to preserve his most prom-
ising—indeed, his only—defense in mitigation at trial. In this
case, no stage was more critical. What happened in chambers
settled Schmidt’s fate. It reduced “the trial itself to a mere for-
mality.” See Wade, 388 U.S. at 224.
The criminal process is full of pretrial steps that involve
both written and oral submissions to the court: to name a few,
motions to suppress evidence; motions challenging venue, ju-
risdiction, or competency to stand trial; and motions asserting
selective or vindictive prosecution, or denial of speedy trial
rights, or discovery disputes. Counsel’s help with the written
half of the process does not erase the potential for prejudice
in the oral half, let alone justify denying assistance of counsel.
To our knowledge, the Supreme Court has never held that
having assistance of counsel in part of a critical stage of the
prosecution justifies denial of counsel in the rest of it. In this
case the judge questioned Schmidt after reviewing the written
offers of proof. If the judge had thought the written offers of
proof had met the some-evidence threshold, the ex parte, in
camera questioning would have been unnecessary. What
Schmidt would say in chambers was critical.
Even if Schmidt had met the some-evidence threshold in
his written offers of proof alone, his unfocused “rambling nar-
rative” in chambers could have diluted that evidence with de-
tails harmful to his defense. At that point in the pretrial pro-
cess, Schmidt did not need to prove adequate provocation. He
needed to provide “some evidence” of it. Schmidt, 824 N.W.2d
at 843, citing Head, 648 N.W.2d at 439.
26 No. 17-1727
The risk was not only that the judge might lose sight of the
elements of adequate provocation or might fail to separate the
wheat from the extensive chaff in Schmidt’s rambling an-
swers, though those are certainly good reasons for needing
counsel in the hearing. There was also a risk that Schmidt
would convert the hearing into a mini-trial on the merits of
his defense rather than a debate about the burden of produc-
tion. If Schmidt could have just met the burden of produc-
tion—and only that burden—he would have had the right to
present his evidence and argue his defense to the jury. And
the trial judge’s oral ruling suggests that this risk might have
played out here: “The Court finds that the circumstances that
led to the death of Kelly Wing did not involve a provocation
and it was not an adequate provocation and denies the mo-
tion.” That conclusion sounds more like a decision on the
merits than a decision on the burden of production.
Finally, Schmidt’s counsel could not fix later the harm
done by Schmidt’s answers. The trial court silenced counsel in
the ex parte hearing and ruled on the defense shortly after
questioning Schmidt. Because counsel could not later undo
the harm to Schmidt, the risk of prejudice at the evidentiary
hearing infected his trial.
3. Role of Counsel
The last factor in the critical-stage analysis is whether
counsel could have helped Schmidt avoid prejudice at the
hearing. There can be no doubt that Schmidt would have ben-
efited from his attorney’s help at the hearing. It is a basic tenet
of constitutional law that an accused has a right to counsel
when he is in custody or after formal proceedings have begun
against him because of the risk that he will inadvertently
harm his defense. See Miranda v. Arizona, 384 U.S. 436, 466
No. 17-1727 27
(1966) (Sixth Amendment guarantees right to counsel at po-
lice interrogation to protect defendant against self-incrimina-
tion); Massiah, 377 U.S. at 206 (same in interrogation by gov-
ernment informant). The dangers to Schmidt and the oppor-
tunity for his counsel to help him are both evident here.
In Ferguson v. Georgia, 365 U.S. 570, 594–96 (1961), the Su-
preme Court explained the need for counsel in a context very
close to this case. At that time, Georgia prohibited the accused
from testifying in his own defense. State law allowed the ac-
cused to make an unsworn statement to the jury, but he ordi-
narily had to do so without questioning by his counsel to
guide him. The Court held that the defendant had a right to
have his counsel question him to elicit his statement. In ex-
plaining this conclusion, the Court quoted Chief Justice Coo-
ley, the nineteenth-century jurist from Michigan, in a lengthy
passage that fits Schmidt’s case well:
But to hold that the moment the defendant
is placed upon the stand he shall be debarred of
all assistance from his counsel, and left to go
through his statement as his fears or his embar-
rassment may enable him, in the face of the con-
sequences which may follow from imperfect or
unsatisfactory explanation, would in our opin-
ion be to make, what the statute designed as an
important privilege to the accused, a trap into
which none but the most cool and self-pos-
sessed could place himself with much prospect
of coming out unharmed. An innocent man,
charged with a heinous offence, and against
whom evidence of guilt has been given, is much
more likely to be overwhelmed by his situation,
28 No. 17-1727
and embarrassed, when called upon for expla-
nation, than the offender, who is hardened in
guilt; and if he is unlearned, unaccustomed to speak
in public assemblies, or to put together his thoughts
in consecutive order any where, it will not be sur-
prising if his explanation is incoherent, or if it over-
looks important circumstances.
365 U.S. at 595–96 (emphasis added), quoting Annis v. People,
13 Mich. 511, 519–20 (1865) (reversing conviction where trial
judge had not allowed defense counsel to remind defendant
he had omitted a material fact from his statement).
Schmidt was not innocent, but the subject of the ex parte,
in camera hearing was his only theory of mitigation. And what
Ferguson described with the quotation from Annis is just what
happened here. Without the guidance of counsel’s question-
ing, Schmidt provided an incoherent account of the circum-
stances that might have supported his defense in mitigation.
(Recall that the Wisconsin Court of Appeals said it was “a
close question” whether Schmidt had produced “some evi-
dence” sufficient to present a triable defense of adequate
provocation.) Counsel could have helped him organize the
facts, present a coherent and legally relevant response, and
meet the burden of production. Without counsel acting in that
role, “a serious risk of injustice infects the trial itself.” Cronic,
466 U.S. at 656, quoting Cuyler v. Sullivan, 446 U.S. 335, 343
(1980).
B. Assistance of Counsel at the Hearing
Because the hearing was a critical stage in Schmidt’s case,
the next question is whether Schmidt received the assistance
No. 17-1727 29
of counsel during it. The Wisconsin Court of Appeals rea-
soned that Schmidt’s counsel was present for the ex parte hear-
ing and could have advised Schmidt and answered any ques-
tions he had. Under AEDPA, we presume that this was a find-
ing on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013).
Even assuming AEDPA controls, it is unreasonable to con-
clude that counsel’s silent (and silenced) presence satisfied the
Sixth Amendment. See 28 U.S.C. § 2254(d)(1).
The Sixth Amendment guarantees the effective assistance
of counsel, of course. Strickland v. Washington, 466 U.S. 668, 686
(1984); Cronic, 466 U.S. at 654; McMann v. Richardson, 397 U.S.
759, 771 (1970). The Sixth Amendment is not satisfied when
“no actual Assistance for the accused’s defence is provided”
and, as a result, the prosecution’s case is not tested against
“the crucible of meaningful adversarial testing.” Cronic, 466
U.S. at 654, 656 (internal quotations omitted). Attorneys can
be constitutionally ineffective either because of their own er-
rors or because the government interferes with their perfor-
mance. Strickland, 466 U.S. at 687, 692; Cronic, 466 U.S. 658–60
(categorizing circumstances when government interference
with attorney performance violates Sixth Amendment). The
Supreme Court has held that the government violates the
Sixth Amendment when it interferes to such an extent that
“although counsel is available to assist the accused,” the “like-
lihood that any lawyer, even a fully competent one, could pro-
vide effective assistance is so small that a presumption of pre-
judice is appropriate without inquiry into the actual con-
duct.” Cronic, 466 U.S. at 659–60.
A long line of Supreme Court cases has applied the rule
that mere appointment or presence of counsel is insufficient
30 No. 17-1727
if state action converts counsel’s presence into a sham. In Pow-
ell v. Alabama, the Court held that “defendants were not ac-
corded the right of counsel in any substantial sense” when the
court appointed defense lawyers for the Scottsboro Boys but
did not give the lawyers adequate time to prepare for trial.
287 U.S. at 57–58; see also Avery v. Alabama, 308 U.S. 444, 446
(1940) (“[T]he denial of opportunity for appointed counsel to
… prepare his defense, could convert the appointment of
counsel into a sham and nothing more than a formal compli-
ance with the Constitution’s requirement.”). In Ferguson, as
noted, the Court found unconstitutional a rule that prohibited
defense counsel—though present at trial—from directly ex-
amining a defendant who chose to speak in his own defense.
365 U.S. at 596. In Geders, the Court found that “an order pre-
venting petitioner from consulting his counsel ‘about any-
thing’” overnight during trial “impinged upon his right to the
assistance of counsel.” 425 U.S. at 91. And in Holloway v. Ar-
kansas, the Court found that the “mere physical presence of an
attorney does not fulfill the Sixth Amendment guarantee”
when the state refused to appoint counsel free of conflicts of
interest and “the advocate’s conflicting obligations … effec-
tively sealed his lips on crucial matters.” 435 U.S. 475, 490
(1978). Thus, the Court has “uniformly found constitutional
error” when counsel was “either totally absent, or prevented
from assisting the accused during a critical stage.” Cronic, 466
U.S. at 659 n.25 (emphasis added).
Even comparatively modest government interference with
the attorney’s ability to exercise judgment can render counsel
ineffective and violate the Sixth Amendment. See Herring, 422
U.S. at 863, 865 (state violated Sixth Amendment by barring
defense attorney from giving closing summation in bench
No. 17-1727 31
trial); Brooks v. Tennessee, 406 U.S. 605, 612–13 (1972) (state vi-
olated Sixth Amendment by requiring that defendant who
chose to testify be the first witness). The Court summarized
its precedent in Strickland:
That a person who happens to be a lawyer is
present at trial alongside the accused, however,
is not enough to satisfy the constitutional com-
mand. The Sixth Amendment recognizes the
right to the assistance of counsel because it en-
visions counsel’s playing a role that is critical to
the ability of the adversarial system to produce
just results. An accused is entitled to be assisted
by an attorney, whether retained or appointed,
who plays the role necessary to ensure that the
trial is fair. For that reason, the Court has recog-
nized that the right to counsel is the right to ef-
fective assistance of counsel.
466 U.S. at 685–86 (collecting cases; internal quotations omit-
ted).
In this case, Schmidt’s counsel was, in the trial judge’s own
words, “just … present” and “not saying anything” during
the ex parte hearing. The state thus prevented Schmidt’s coun-
sel from performing the “role that is critical to the ability of
the adversarial system to produce just results.” Strickland, 466
U.S. at 685. Schmidt’s counsel was not allowed to speak while
the court questioned his client on the most important issue in
his defense. It was objectively unreasonable for the state court
to conclude that Schmidt’s counsel could have provided effec-
tive assistance and meaningfully tested the arguments against
the provocation defense by “not saying anything.” See Cronic,
466 U.S. at 656, citing Anders v. California, 386 U.S. 738, 743
32 No. 17-1727
(1967) (summarizing Supreme Court precedent requiring
counsel acting as an advocate).
In this appeal, the State echoes the state court’s suggestion
that Schmidt’s counsel “could have objected” during the hear-
ing and was “functionally present” to help Schmidt. We find
no factual support for these statements. The trial judge told
Schmidt—and assured the prosecutor—that Schmidt’s coun-
sel would not say anything during the hearing. Once in cham-
bers, the judge reiterated that Schmidt’s counsel was not to
participate. And throughout the ex parte hearing, Schmidt
spoke uninterrupted by his counsel for long enough to fill
thirty-five transcript pages. The judge addressed Schmidt di-
rectly, not his counsel. Given the judge’s ground rules for the
hearing, there is no basis for the conclusion that counsel could
have objected or advised Schmidt. Doing so would have
amounted to contempt of court.
The State also argues that Schmidt could have cured any
prejudice by supplementing his offers of proof after the ex
parte hearing. The State points to an earlier pretrial hearing
when the court announced that it would hold the hearing on
the provocation defense and might allow Schmidt to supple-
ment the record “if the Court is not satisfied” at “the end of
that” hearing. There are three major flaws in this argument.
First, the accused is entitled to the assistance of counsel dur-
ing the entirety of a critical stage, not just part of it. Second,
and more specifically, Schmidt needed counsel’s help in con-
fronting the burden of production on a complex factual and
legal defense. The prejudice he suffered came from disclosing
irrelevant details and diluting the evidence that could support
his defense. Any hypothetical opportunity to supplement the
record later would not have reversed the damage to Schmidt’s
No. 17-1727 33
case or satisfied Schmidt’s right to counsel during the critical
hearing itself.
Third, again, the factual record does not support the
State’s argument. The trial court ruled on the provocation de-
fense immediately after the ex parte proceeding. When
Schmidt’s counsel mentioned supplementing the record a
month later, the judge replied that he had already “ruled on”
the defense.
The State also points out that Schmidt’s counsel did not
object to the judge’s ground rules that required counsel to re-
main silent during the ex parte hearing. (Schmidt’s counsel did
object to holding the hearing at all, and to the judge’s plan to
question Schmidt himself, but on Fifth Amendment grounds.)
The absence of a Sixth Amendment objection does not matter
here. The accused himself may waive the right to counsel,
whether for the entire case or for a particular stage of the pro-
ceeding, but any waiver must be knowing and intelligent.
E.g., Brewer v. Williams, 430 U.S. 387, 404 (1977) (state must
prove “intentional relinquishment or abandonment of a
known right or privilege” to show waiver of right to counsel
at critical stage). There is also a strong presumption against
waiver of constitutional rights that preserve a fair trial. Id.;
Schneckloth v. Bustamonte, 412 U.S. 218, 237–38 (1973). There is
no indication in this record that Schmidt knew he had a right
to effective assistance of counsel in the highly unusual ex
parte, in camera hearing, let alone that he knew the judge’s
ground rules would deny him that right or that he agreed to
waive the right.
Finally, the State points to the brief recess late in the hear-
ing when the judge made a telephone call. Counsel asked if
he might speak to his client during the short recess. The judge
34 No. 17-1727
said only that counsel could review the written offer of proof
summarizing Schmidt’s intended defense. This limited oppor-
tunity for a brief talk with counsel was not enough to satisfy
the Sixth Amendment “in any substantial sense,” and to con-
clude otherwise “would simply be to ignore actualities.” Pow-
ell, 287 U.S. at 58. As the Supreme Court has observed, the
“tensions of a trial for an accused with life or liberty at stake
might alone render him utterly unfit to give his explanation
properly” when speaking “without the guiding hand of coun-
sel.” Ferguson, 365 U.S. at 594 (internal quotations and cita-
tions omitted). Schmidt was never guided while explaining
his offense and the provocation he claimed. The problems the
Supreme Court predicted in Ferguson occurred here.
Schmidt’s answers to the judge’s questions were so unfocused,
with so much irrelevant and distracting details and side-
tracks, that the judge asked him the same question six times:
what was your mental state when you shot your wife? The
Sixth Amendment guaranteed him more than a silenced at-
torney listening to his answers.
When the State denies a defendant counsel at a critical
stage, prejudice is presumed. E.g., Bell v. Cone, 535 U.S. 685,
695–96 (2002); Cronic, 466 U.S. at 658–59. The district court’s
judgment is REVERSED and the case is REMANDED with in-
structions to grant the writ of habeas corpus ordering that
Schmidt be released or retried promptly, or perhaps, as the
State suggested in the district court, that the state court mod-
ify Schmidt’s judgment of conviction to second-degree inten-
tional homicide and re-sentence him accordingly.
No. 17-1727 35
BARRETT, Circuit Judge, dissenting. I dissent from the ma-
jority opinion for three reasons. First, I disagree that clearly
established Supreme Court precedent dictates the resolution
of Schmidt’s Sixth Amendment claim. The majority says that
this ex parte and in camera proceeding was a “critical stage,”
but the Court’s “critical stage” precedent deals exclusively
with adversarial confrontations between the defendant and
an agent of the State. Second, the majority suggests that even
if the presence of an adversary is necessary, the judge played
that role. The procedural context and transcript, however,
provide ample grounds for a fairminded jurist to conclude
otherwise. Finally, I disagree with the majority that the Wis-
consin Court of Appeals unreasonably applied federal law in
deciding that this proceeding did not risk substantial preju-
dice to Schmidt. The prejudice alleged is that Schmidt’s wan-
dering testimony cluttered the record with irrelevant details
that distracted the judge from Schmidt’s best evidence. This
proceeding, however, supplemented the defense’s written of-
fer of proof detailing Schmidt’s evidence of adequate provo-
cation. A fairminded jurist could conclude that the written
summary of Schmidt’s evidence kept the judge from losing
the forest for the trees.
I.
Because the Wisconsin Court of Appeals adjudicated
Schmidt’s Sixth Amendment claim on the merits, the Anti-
Terrorism and Effective Death Penalty Act of 1996 (AEDPA)
prevents us from granting his application for a writ of habeas
corpus unless the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
36 No. 17-1727
United States.” 28 U.S.C. § 2254(d)(1). The majority’s descrip-
tion of this case as “unprecedented” and “highly unusual”
gives away the fact that the opinion enters territory that the
Supreme Court has not broached. Existing Supreme Court
precedent addresses a defendant’s right to counsel in certain
adversarial confrontations with a prosecutor, the police, or an
agent of either. No Supreme Court precedent addresses the
question presented by this case: whether a defendant has the
right to counsel when testifying before a judge in a nonadver-
sarial proceeding. Because there is no clearly established Su-
preme Court precedent for the Wisconsin Court of Appeals to
have unreasonably applied, Schmidt cannot satisfy
§ 2254(d)(1)’s stringent standard for relief.
A.
The majority describes Supreme Court precedent as
“clearly stand[ing] for the proposition that” counsel is “re-
quired at every stage of a criminal proceeding where substan-
tial rights of a criminal accused may be affected.” Majority
Op. at 17 (citing Mempa v. Rhay, 389 U.S. 128, 134 (1967)). That
states the rule at too high a level of generality. The Court’s
“critical stage” precedent deals exclusively with a defendant’s
right to counsel in adversarial confrontations with law en-
forcement. And the connection between the right to counsel
and an adversarial confrontation is by no means a mere side-
light in the cases; it is central to them.
The Court has rooted the right to counsel in the need to
protect the defendant when he faces the prosecuting author-
ity. In United States v. Ash, it explained that the right emerged
alongside the introduction of a “government official whose
specific function it was to prosecute, and who was incompa-
rably more familiar than the accused with the problems of
No. 17-1727 37
procedure, the idiosyncrasies of juries, and, last but not least,
the personnel of the court.” 413 U.S. 300, 308 (1973) (citing F.
Heller, The Sixth Amendment 20–21 (1951)). Consistent with
this history, the Sixth Amendment was designed “to minimize
imbalance in the adversary system that otherwise resulted
with the creation of a professional prosecuting official.” Id. at
309. While the Amendment’s protection is not limited to the
formal trial, “[t]he Court consistently has applied a historical
interpretation of the guarantee, and has expanded the consti-
tutional right to counsel only when new contexts appear pre-
senting the same dangers that gave birth initially to the right
itself.” Id. at 311.
The “new contexts” to which the Court has extended the
right invariably involve a confrontation between the defend-
ant and his adversary, be it a prosecutor, the police, or one of
their agents. For example, in Estelle v. Smith, a psychiatrist
functioning as an “agent of the State” performed an examina-
tion of the defendant in his jail cell. 451 U.S. 454, 467 (1981). 5
5
The majority characterizes Estelle as a case in which the Court recog-
nized the right to counsel in a non-adversarial proceeding. Majority Op.
at 18–19. In Estelle, the judge had “informally ordered the State’s attorney
to arrange a psychiatric examination of [the defendant] … to determine
[his] competency to stand trial,”451 U.S. at 456–57, and the majority asserts
that the Court held that “the judge’s non-adversarial decision to order the
psychiatric interview … was a critical stage of the proceedings.” Majority
Op. at 18. But it was the examination by the psychiatrist, not the decision
by the judge, that the Court deemed a “critical stage.” 451 U.S. at 470
(“[R]espondent’s Sixth Amendment right to counsel clearly had attached
when Dr. Grigson examined him at the Dallas County Jail, and their inter-
view proved to be a ‘critical stage’ of the aggregate proceedings against
the respondent.” (footnote omitted)). And the Court left no doubt that the
psychiatrist functioned as the defendant’s adversary. It stressed that the
defendant was “faced with a phase of the adversary system” and was “not
38 No. 17-1727
In Coleman v. Alabama, the defendant attended a preliminary
hearing at which there was an opportunity to cross-examine
the prosecution’s witnesses, preview the prosecutor’s case to
better prepare for trial, and argue for matters such as “the ne-
cessity for an early psychiatric examination or bail.” 399 U.S.
1, 9 (1970) (plurality opinion). In United States v. Wade, an FBI
agent conducted a lineup of Wade and several other prison-
ers. 388 U.S. 218 (1967). In Mempa v. Rhay, the defendant was
summoned to a hearing at which the prosecutor sought to
have his probation revoked and a sentence imposed. 389 U.S.
128 (1967). In Massiah v. United States, federal agents sent an
informant wearing a wire to elicit incriminating testimony
from the defendant after he had already been indicted. 377
U.S. 201 (1964). In Escobedo v. Illinois, the police interrogated
the defendant without counsel despite his repeated requests
that counsel be present. 378 U.S. 478 (1964). In White v. Mary-
land, the prosecutor presented a prima facie case against the
defendant at a preliminary hearing, where the defendant
pleaded guilty. 373 U.S. 59 (1963) (per curiam). 6 In Hamilton v.
in the presence of [a] perso[n] acting solely in his interest.” Id. at 467 (cita-
tions omitted). The psychiatrist assessed the defendant’s “future danger-
ousness,” gathering evidence that the prosecution used in seeking the
death penalty, id. at 467, 471, and he then testified against the defendant
at trial, “recounting unwarned statements made in a postarrest custodial
setting.” Id. at 467. Given the stakes of submitting to such an interview,
the Court held that the defendant had the right to counsel’s help in decid-
ing whether to do it. Id. at 470.
6
The brief per curiam opinion is short on details, but the petitioner’s
brief explains that at a preliminary hearing in Maryland, “the defendant
may be called upon by the magistrate to plead guilty or not guilty, and a
plea of guilty is admissible evidence at the subsequent trial of his case.
Here, also, the defendant is afforded the first opportunity to be informed
of the charges against him, cross-examine State’s witnesses, and begin to
No. 17-1727 39
Alabama, the defendant faced the prosecutor at arraignment,
which was his only opportunity to plead insanity, make pleas
in abatement, and move to quash the indictment based on ra-
cial discrimination in the composition of the grand jury. 368
U.S. 52 (1961). Although these confrontations occurred out-
side the context of the formal trial, the Sixth Amendment ap-
plied because they “offered opportunities for prosecuting au-
thorities to take advantage of the accused,” or the risk that the
accused “might be misled by his lack of familiarity with the
law.” Ash, 413 U.S. at 312, 317. 7
effectively prepare his defense … [The magistrate’s] sole function at this
hearing is to determine from the evidence presented by the State’s attor-
ney whether to hold the accused for the action of the Grand Jury … or
discharge him.” Petitioner’s Brief at 4, 6.
7
The majority relies on Geders v. United States, 425 U.S. 80 (1976), as
support for the proposition that a proceeding need not be adversarial for
the right to counsel to apply. See Majority Op. at 19. Geders—which is not
a “critical stage” case—is inapposite. In Geders, the Court held that the trial
court violated the defendant’s Sixth Amendment right when it instructed
all witnesses, including the defendant, not to discuss the case with anyone
during an overnight recess in the trial. The case did not present the ques-
tion whether a particular event (there, the overnight recess) is a “critical
stage” at which the state must ensure that the defendant is either accom-
panied by counsel or waives his right to be accompanied by counsel. It
presented the different question whether a trial court can prevent the de-
fendant from consulting counsel on his own initiative outside of the trial.
Id. at 88. Geders says nothing about the characteristics of a “critical stage,”
much less suggests that such a stage need not be adversarial. Nor does
Geders stand for the proposition that the start of the adversarial process—
or even the start of trial—marks the beginning of a continuous “critical
stage.” On the contrary, the Court has indicated that a trial may encom-
pass stages that are not critical. See, e.g., Woods v. Donald, – U.S. –, 135 S. Ct.
1372, 1377–78 (2015) (per curiam) (reversing the Sixth Circuit’s grant of
40 No. 17-1727
Ash includes a line that is susceptible to misinterpretation.
There, the Court said that a stage is critical when “the accused
was confronted, just as at trial, by the procedural system, or
by his expert adversary, or by both.” Id. at 310. This language
could be understood as setting up alternative settings—one
non-adversarial and the other adversarial—in which the right
to counsel applies. In context, however, it is evident that the
Court was explaining why it has extended the right of counsel
not only to situations in which the defendant or his witness is
questioned by the police or prosecutor (as in post-indictment
interrogation of the accused or examination at trial), but also
to situations in which the prosecutor puts the accused to a
procedural choice (like entering a plea or raising a defense).
In other words, Ash describes two kinds of risks that an ac-
cused might face in an adversarial setting. It does not describe
the right to counsel as extending outside of an adversarial
proceeding, and the Court has not understood it that way.
To the contrary, the Court has never extended the right
outside of the adversarial context. And when it has refused to
extend the right, it has done so on the ground that the pro-
ceeding was not adversarial. Ash refused to extend the right
of counsel to a post-indictment photographic display pre-
cisely because the display involved no confrontation between
the accused and the prosecuting authority. 413 U.S. at 315, 321.
Similarly, in Gerstein v. Pugh, the Court held that a probable
cause hearing is not a critical stage “[b]ecause of its limited
function and its nonadversary character.” 420 U.S. 103, 122
habeas relief to a petitioner whose counsel was absent during trial testi-
mony about the petitioner’s co-defendants because the Court had never
held that the presentation of testimony tangentially related to the defend-
ant was a “critical stage”).
No. 17-1727 41
(1975). We too have recognized the presence of an adversary
as a necessary factor for Sixth Amendment protection. In
United States v. Jackson, 886 F.2d 838, 844 (7th Cir. 1989), for
example, we held that a defendant’s uncounseled interview
with a probation officer in the course of the officer’s prepara-
tion of the presentence report was not a critical stage precisely
because the “probation officer does not have an adversarial
role in the sentencing proceedings.” Rather than serving as an
arm of the prosecutor, “the probation officer serves as a neu-
tral information gatherer for the sentencing judge.” Id.
B.
The majority acknowledges that the Court has never ad-
dressed a claim like Schmidt’s. But it points out that a case
need not present facts identical to those previously consid-
ered by the Court for clearly established precedent to govern
it. The Court has said that a state court acts unreasonably for
purposes of § 2254(d)(1) if it “refuses to extend [controlling
Supreme Court precedent] to a new context where it should
apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). The major-
ity reasons that the Wisconsin trial court’s questioning of
Schmidt is such a context—not one that the Court has con-
fronted before, but one to which its “critical stage” precedent
clearly extends.
This reasoning only works, however, if the controlling
precedent is read at the level of generality the majority pro-
poses—as establishing the right to counsel in any post-indict-
ment proceeding in which legal assistance would help the ac-
cused avoid substantial prejudice. If that is the law, then we
need to decide whether the state court unreasonably refused
to apply it to this new context. But if the precedent is read
more narrowly—as establishing the right to counsel when the
42 No. 17-1727
accused faces his adversary—then clearly established law
does not dictate the outcome. Resolving the Sixth Amend-
ment question therefore requires us to decide the level of gen-
erality at which to read the Supreme Court’s precedent.
Carey v. Musladin answers that question: we track the level
of generality at which the Court has spoken. 549 U.S. 70
(2006). In Carey, the Court reviewed the Ninth Circuit’s deter-
mination that buttons with the victim’s image worn by court-
room spectators had deprived the habeas petitioner of a fair
trial. The Court had previously held that certain state-spon-
sored practices (like compelling a defendant to wear prison
clothing at trial) were “inherently prejudicial,” and the Ninth
Circuit reasoned that the buttons posed a similar risk. The
Court rejected that reasoning. The Ninth Circuit interpreted
the Court’s precedent as establishing a general rule against
courtroom conduct inherently prejudicial to the defendant; it
should have interpreted the Court’s precedent as establishing
a more specific rule against state-sponsored courtroom conduct
inherently prejudicial to the defendant. Id. at 76. The Court
emphasized that it “ha[d] never addressed a claim that such
private-actor courtroom conduct was so inherently prejudi-
cial that it deprived a defendant of a fair trial.” Id. By stating
the rule more broadly than the Court had, the Ninth Circuit
held the state responsible for violating law that was not
clearly established.
So here. The Court has never addressed a claim that a de-
fendant has a right to counsel in an ex parte and in camera pro-
ceeding before a judge. Like the Ninth Circuit in Carey, the
majority errs by stating the established law at a higher level
of generality than the Court has. Indeed, the centrality of ad-
No. 17-1727 43
versarial confrontation to the Court’s “critical stage” jurispru-
dence makes the extraction of a general principle from a more
specific rule even more evident here than it was in Carey.
To be clear, Carey is not inconsistent with the Court’s ad-
monition in Williams v. Taylor that a state court acts unreason-
ably if it “refuses to extend [controlling Supreme Court prec-
edent] to a new context where it should apply.” 529 U.S. at
407. A state court cannot treat the Court’s clearly established
precedent as fact-bound. On the contrary, a state court, like a
reviewing federal court, must respect the level of generality
at which the Court has spoken. Just as a federal court cannot
elevate the level of generality, a state court cannot contract it.
Thus, a state court would act unreasonably if it refused to rec-
ognize a defendant’s right to counsel in a post-indictment, ad-
versarial proceeding on the ground that the proceeding was
not exactly the same as those the Court has previously ad-
dressed. Clearly established law does not entitle the defend-
ant to counsel in a laundry list of specific proceedings, but in
“proceedings between an individual and agents of the State
… that amount to ‘trial-like confrontations,’ at which counsel
would help the accused ‘in coping with legal problems or …
meeting his adversary.” Rothgery v. Gillespie County, 554 U.S.
191, 212 n.16 (2008) (citations omitted). The state court is
obliged to follow that rule, even if the factual circumstance is
new. But under AEDPA, we cannot hold the state court ac-
countable for declining to expand the rule itself.
Perhaps the right to counsel should extend to a hearing
like the one the judge conducted in Schmidt’s case. But
AEDPA precludes us from disturbing a state court’s judgment
on the ground that a state court decided an open question dif-
ferently than we would—or, for that matter, differently than
44 No. 17-1727
we think the Court would. Because the Court has never ad-
dressed the question that the Wisconsin Court of Appeals
faced, there was no clearly established precedent for it to
flout.
II.
The majority does not rely exclusively on an extension of
the Court’s “critical stage” cases to nonadversarial proceed-
ings. Its opinion appears to rest on a second rationale: that this
proceeding was functionally adversarial. While it stops short
of actually calling the judge the defendant’s “adversary,” it
strongly implies that the judge stood in the shoes of the pros-
ecutor. The majority’s reasoning, then, seems to be twofold.
Clearly established Supreme Court precedent is not limited to
adversarial proceedings, but in any event, this proceeding
was functionally adversarial and risked substantial prejudice
to Schmidt. In concluding otherwise, the Wisconsin Court of
Appeals unreasonably applied clearly established federal law.
The majority gives too little deference to the Wisconsin
Court of Appeals. A state-court decision is “unreasonable”
under § 2254(d) if it is “so lacking in justification that there
was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”
Woods v. Etherton, – U.S. –, 136 S. Ct. 1149, 1151 (2016) (per cu-
riam) (citation and quotation marks omitted); see also Harring-
ton v. Richter, 562 U.S. 86, 102 (2011) (Section 2254(d) “pre-
serves authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court’s decision conflicts with this Court’s precedents.”). That
is a high bar, and Schmidt does not clear it.
No. 17-1727 45
A.
The majority holds that the Wisconsin Court of Appeals
unreasonably applied the Court’s “critical stage” jurispru-
dence when it concluded that the ex parte and in camera pro-
ceeding was nonadversarial. Given the prosecutor’s absence,
it was certainly not “adversarial” in the ordinary sense of the
word—or in the sense that the Court has employed it in the
cases. In an effort to get around that, the majority character-
izes the proceeding as “inquisitorial.” If used in its benign
sense—as referring to the system of proof-taking in civil law
systems—the word “inquisitorial” by definition means non-
adversarial. See Majority Op. at 15 n.3. At some points in its
opinion, the majority concedes that the proceeding was non-
adversarial and faults it on that ground. See, e.g., Majority Op.
at 14. (That concession, of course, forecloses the argument that
the Wisconsin Court of Appeals unreasonably characterized
the ex parte and in camera hearing as a nonadversarial one.)
Elsewhere, however, the majority asserts that the proceeding
was adversarial. Majority Op. at 22–23. This suggests that the
majority is using the description “inquisitorial” as it is often
deployed in American criminal cases—to describe a proceed-
ing in which the accused faces an aggressive questioner gath-
ering evidence against him. See, e.g., Miller v. Fenton, 474 U.S.
104, 110 (1985); Miranda v. Arizona, 384 U.S. 436, 442–43 (1966).
And while the majority does not attribute ill will to the judge,
it does cast him as Schmidt’s adversary. Majority Op. at 23 (as-
serting that the hearing was a “trial-like confrontation” in
which “the judge took the accused and his (silenced) lawyer
46 No. 17-1727
into chambers to question him about the facts supporting the
defense”).
The transcript, however, contains no suggestion that the
judge ever functioned as a surrogate prosecutor. His aim was
not to secure Schmidt’s conviction—or, as specifically relevant
here, to establish that Schmidt was not entitled to raise the
“adequate provocation” defense. On the contrary, as the Wis-
consin Court of Appeals observed, the judge conducted the
proceeding this way for Schmidt’s benefit.
The hearing grew out of a dispute between the parties
about when the trial court would decide whether Schmidt
had sufficient evidence to put the “adequate provocation” de-
fense in issue. Schmidt argued that Wisconsin law required
the court to wait to resolve that question until it instructed the
jury; doing it before trial, he insisted, would give the prosecu-
tion a preview of his case. The State wanted the court to rule
on the admissibility of Schmidt’s evidence before trial; other-
wise, it argued, the jury would hear a litany of prejudicial ev-
idence about the victim that might not be probative of an issue
actually in the case. The court agreed with the State. It de-
cided—in a ruling that the Wisconsin Court of Appeals ulti-
mately affirmed—that Wisconsin law gave the trial court the
discretion to determine before trial whether the defendant
could carry his burden of production on the “adequate prov-
ocation” defense.
While the judge decided to make the evidentiary determi-
nation before trial, he was sympathetic to Schmidt’s concern
about showing the prosecutor his hand. He proposed the ex
parte and in camera hearing as a way of addressing that con-
cern. Defense counsel responded as follows to the court’s pro-
posal:
No. 17-1727 47
A suggestion that I was going to bring up today is
that the Court, if you are going to ask for evidence
from the defendant or evidence that goes to his sub-
jective belief for adequate provocation, is that, in
fact, we would do an ex parte in-camera inspection
of the Court and the defendant and seal those rec-
ords because I don’t think it would be—it should be
allowed to the State and should have that infor-
mation prior to trial.
Transcript of Motion Hearing 2.10.2010 at 5. The court wanted
defense counsel to accompany Schmidt, but because the pros-
ecution was barred from the hearing, the court instructed de-
fense counsel to function as an observer only. The prosecutor
agreed to the proceeding on that condition. Had Schmidt’s
counsel actively participated, the judge would have included
the prosecutor, and Schmidt wanted the prosecutor out of the
room.
The majority puts little weight on the prosecutor’s ab-
sence, because it suggests that the judge filled the prosecutor’s
shoes. 8 The judge, however, spoke very little during the hear-
ing. Instead, he primarily listened as Schmidt testified about
8
The majority also suggests that the ex parte and in camera proceeding
followed on the heels of the prosecutor’s oral argument about why
Schmidt’s evidence fell short of what was necessary to carry his burden of
production. Majority Op. at 21. But the judge did not hear arguments
about the substance of the adequate provocation issue from either side be-
fore he examined Schmidt. He “entertain[ed] comments from counsel” on
the procedural questions of whether he could resolve the burden-of-pro-
duction question before trial and whether he could do an in camera inspec-
tion of Schmidt. Transcript of Motion Hearing 2.10.2010 at 2–7. The rest of
the hearing dealt with various trial-management matters. At no point did
48 No. 17-1727
his state of mind before he shot his wife. 9 And far from posi-
tioning himself as Schmidt’s adversary, the judge tried to help
him by calling a recess so that Schmidt could review the writ-
ten offer of proof with his counsel. 10 The offer of proof was a
roadmap for Schmidt’s testimony. It contained a timeline of
the allegedly provocative events, and the judge wanted
Schmidt to refresh his memory so that he didn’t overlook any.
Before the recess, he told Schmidt “that you might not state
all of the things that are in the offer of proof, possibly because
you … haven’t had an opportunity to review this.” Transcript
of Proceedings at 25. When the hearing resumed, the judge
asked Schmidt how the incidents described in the document
might have affected his state of mind.
In retrospect, it may have been better for the judge to de-
cline Schmidt’s request for an ex parte and in camera hearing.
There would be no Sixth Amendment question before us if the
judge had proceeded in the normal course, with both lawyers
participating. That said, the judge structured the hearing as
the prosecutor make an argument about why Schmidt’s evidence of ade-
quate provocation was insufficient.
9
Schmidt, who testified voluntarily, does not argue that the court vi-
olated his Fifth Amendment right against self-incrimination. As the trial
court noted “[the pretrial hearing] accelerates what the defendant might
already say in a trial, but it is the defendant that chooses to present this
defense.” Transcript of Motion Hearing 2.10.2010 at 4.
10
During this recess, the judge permitted defense counsel to confer
with Schmidt while the judge stepped out to make a phone call. Defense
counsel asked: “Am I allowed to talk to my client now or not?” The judge
responded: “It’s off the record. Yeah, you can talk. But he should just be
reviewing [the offer of proof].” Transcript of Proceedings at 26.
No. 17-1727 49
he did in an effort to accommodate Schmidt, and the tran-
script reflects that the judge remained neutral throughout it.
It was therefore reasonable for the Wisconsin Court of Ap-
peals to conclude that this was not a trial-like confrontation in
which Schmidt was entitled to counsel to “compensate[] for
advantages of the prosecuting authorities.” Ash, 413 U.S. at
314.
B.
It is not enough for Schmidt to demonstrate that the Wis-
consin Court of Appeals unreasonably concluded that this
proceeding was nonadversarial. To secure relief, Schmidt
must also show that no fairminded judge could conclude that
this hearing lacked the potential to substantially prejudice
him. That is yet another ground on which Schmidt’s argument
fails.
According to the majority, “The prejudice [Schmidt] suf-
fered came from disclosing irrelevant details and diluting the
evidence that could support his defense.” Majority Op. at 32.
In other words, Schmidt was harmed because his rambling
narrative failed to focus the judge on the evidence most help-
ful to his “adequate provocation” defense. The idea that the
judge—who knew the legal elements of the adequate provo-
cation defense—was incapable of separating the wheat from
the chaff sells the judge short.11 But in any event, the judge
11
The majority also sells the trial judge short with its argument that
by saying too much, Schmidt risked confusing the judge about whether he
was supposed to resolve the merits or decide whether Schmidt had carried
his burden of production on the defense. Majority Op. at 25–26. This ar-
gument not only underrates the judge (and the court of appeals that af-
firmed his judgment), but it also rests on an assumption that is odd given
50 No. 17-1727
was not left to cull the evidence without input from defense
counsel. As the Wisconsin Court of Appeals said, the exami-
nation of Schmidt was supplementary. The judge went into it
already having reviewed a legal analysis of the adequate
provocation defense; a detailed timeline of the relevant
events; the summarized testimony of 29 witnesses who ob-
served his wife’s allegedly provocative behavior; a hotel res-
ervation that Schmidt discovered shortly before the shooting
and took as evidence of his wife’s infidelity; and a copy of a
statement that Schmidt gave police at the scene that detailed
some of what was in his mind when he shot his wife. So even
if Schmidt’s testimony cluttered the record with irrelevant de-
tails, the written evidence focused the judge on the key facts.
The Wisconsin Court of Appeals acknowledged that it
might have been more efficient to have counsel guide the
presentation of Schmidt’s testimony. But the fact that the par-
ticipation of counsel would have been helpful to Schmidt does
not necessarily mean that the lack of counsel risked substan-
tial prejudice to him. A fairminded jurist could find that this
proceeding, which was reinforced by written evidence, did
not risk substantial unfair prejudice to Schmidt.
III.
Because the majority holds that Schmidt is entitled to relief
on his Sixth Amendment claim, it does not reach Schmidt’s
the facts of this case: that Schmidt should have been sparing in his testi-
mony to avoid “convert[ing] the hearing into a mini-trial on the merits of
his defense rather than a debate about the burden of production.” Id at 26.
As it was, both the Wisconsin trial and appellate courts found that
Schmidt had not introduced enough evidence to get the defense before the
jury. Given that his evidence was thin enough to permit that finding, he
would have been ill advised to hold back any evidence from the judge.
No. 17-1727 51
claim that the ex parte and in camera hearing arbitrarily vio-
lated his due process right to present a defense. For the sake
of completeness, I briefly note that I would deny relief on this
claim as well.
In both the Wisconsin Court of Appeals and the federal
district court, Schmidt asserted a claim under Chambers v. Mis-
sissippi, which holds that state evidentiary rules must yield to
the defendant’s due-process right to present a defense. 410
U.S. 284 (1973). According to Schmidt, Wisconsin violated the
Due Process Clause by requiring him to satisfy a burden of
production (that he produce “some evidence” of adequate
provocation) before he could introduce evidence of that de-
fense at trial. Both the Wisconsin Court of Appeals and the
federal district court correctly rejected that claim, because,
among other things, none of the cases in which the Chambers
principle has prevailed (and it has prevailed only rarely) “in-
volved restrictions imposed on a defendant’s ability to present
an affirmative defense.” Gilmore v. Taylor, 508 U.S. 333, 343
(1993); see also Kubsch v. Neal, 838 F.3d 845, 858 (7th Cir. 2016)
(en banc) (discussing Chambers and its progeny). Adequate
provocation in Wisconsin is an affirmative defense. Wis. Stat.
§ 939.44(2).
Presumably recognizing the weakness of his Chambers
claim, Schmidt has repackaged his due process argument into
a new claim. Before us, he argues not that Wisconsin’s eviden-
tiary rules must yield to his due process right to put on a de-
fense, but that the trial court’s use of the ex parte and in camera
process violated the Due Process Clause. Because Schmidt did
not raise this claim in either the Wisconsin Court of Appeals
52 No. 17-1727
or the federal district court, I would deny it as both procedur-
ally defaulted and forfeited.
***
The standard for relief under AEDPA is intentionally dif-
ficult because federal habeas review of state convictions
“frustrates both the States’ sovereign power to punish offend-
ers and their good-faith attempts to honor constitutional
rights.” Calderon v. Thompson, 523 U.S. 538, 555–56 (1998) (ci-
tation and quotation marks omitted). To reinforce that point,
the Court has not hesitated to reverse the courts of appeals
when they fail to give state courts the deference that AEDPA
requires. See, e.g., Woods, 136 S. Ct. 1149; Woods v. Donald,
– U.S. –, 135 S. Ct. 1372 (2015) (per curiam); White v. Wheeler,
– U.S. –, 136 S. Ct. 456 (2015) (per curiam); Marshall v. Rodgers,
569 U.S. 58 (2013) (per curiam); Nevada v. Jackson, 569 U.S. 505
(2013) (per curiam); Parker v. Matthews, 567 U.S. 37 (2012) (per
curiam); Renico v. Lett, 559 U.S. 766 (2010). The majority fails
to give the Wisconsin Court of Appeals the required defer-
ence, and I therefore dissent.