Nicole Harris v. Sheryl Thompson

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1088
N ICOLE H ARRIS,
Petitioner-Appellant,
v.
S HERYL T HOMPSON, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CV 6257—James B. Zagel, Judge.
A RGUED JUNE 7, 2012—D ECIDED O CTOBER 18, 2012
Before M ANION, K ANNE, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Illinois prisoner Nicole
Harris was convicted in an Illinois state court of
murdering her four-year-old son, Jaquari Dancy, and
was sentenced to 30 years in prison. It is undisputed
that Jaquari died from asphyxiation and that the instru-
ment of death was an elastic band that had come loose
from a fitted bed sheet. The parties also agree that
Jaquari was not alone when he died. His five-year-old
2 No. 12-1088
brother Diante was in the top bunk of the bed the two
shared. On the day of Jaquari’s death, Harris dis-
ciplined the boys for leaving the apartment while she
was across the street doing laundry. The State’s theory
was that Jaquari would not stop crying, and Harris grew
so mad that she strangled him with the elastic band
while Diante slept in the bunk above. The defense
theory was that Jaquari had wrapped the elastic around
his own neck and accidentally asphyxiated himself
while Harris was at the laundromat. At trial, by
far the most damning evidence against Harris was her
videotaped confession, recorded the day after Jaquari’s
death following 27 hours of intermittent interrogation at
a Chicago police station. In the tape, Harris admitted
to choking Jaquari with the elastic band because he
had misbehaved.
Harris’s best exculpatory evidence was the proffered
testimony of Diante, age six at trial, who has main-
tained since he was first interviewed the day after
Jaquari’s death that his brother wrapped the elastic
band around his own neck and that neither his mother
nor father was present when he did so. The jury never
heard Diante’s testimony, however, because the trial
court determined that Diante was not a competent wit-
ness. No one disputes that the trial judge made a
legal error in reaching this conclusion: he reversed
Illinois law’s presumption of competency by requiring
the defendant, as the proponent of the witness, to
prove that Diante was competent to testify. Illinois’s
competency statute places the burden of proof on
the party challenging competency — in this case, the
No. 12-1088 3
State — even when the witness is a child. See 725 ILCS
5/115-14(c).
In this collateral attack on her conviction, Harris con-
tends that the trial court’s exclusion of Diante’s testi-
mony violated her federal Sixth Amendment right to
present witnesses in her own defense, see Washington
v. Texas, 388 U.S. 14 (1967), and that she received
ineffective assistance of counsel at Diante’s competency
hearing. The original state trial court denied Harris’s
motion for a new trial on these and other grounds. The
Illinois Appellate Court rejected her direct appeal, and
the district court determined that federal habeas relief
was not available.
We reverse with instructions to grant the writ. A
court’s exclusion of defense evidence violates the Com-
pulsory Process Clause of the Sixth Amendment where
the evidence is material to the outcome of trial and the
application of the evidentiary exclusion is arbitrary or
disproportionate to the state’s legitimate interests pro-
moted by the rule. Although Diante and his testimony
posed challenges, the complete exclusion of this critical
exculpatory evidence in this case was arbitrary and
disproportionate to the truth-seeking and reliability
concerns advanced by witness competency restric-
tions. We review this issue de novo because it was not
addressed by the Illinois courts. The disqualification
of Diante as a witness violated Harris’s Sixth Amend-
ment right to present a complete defense.
We also conclude that trial counsel’s serious errors in
the competency hearing deprived Harris of the right to
4 No. 12-1088
effective counsel. As the only eyewitness to Jaquari’s
death, Diante’s testimony was essential to Harris’s de-
fense. His competency hearing was crucial, but
Harris’s counsel was not ready for it: he did not inter-
view Diante, he did not secure the presence of a
witness who would have shown that Diante’s recollec-
tions of what happened were consistent and credible,
and he did not correct the trial court’s misapplication
of the burden of proof. Under Strickland v. Washington,
466 U.S. 668 (1984), and its progeny, each of these
mistakes — lack of investigation, failure to secure a key
witness, and ignorance of applicable law — amounted
to constitutionally deficient performance of defense
counsel. If counsel had taken simple and obvious steps
to prepare for the hearing, it is reasonably likely that
Diante would have been deemed competent. And if
the jury had heard his testimony, there is a reasonable
probability that the outcome of the trial would have
been different. In concluding that Harris was not preju-
diced by her counsel’s errors at the competency
hearing, the state appellate court unreasonably ap-
plied Strickland.
I. Factual and Procedural Background
The underlying facts of this case are detailed in the
Illinois Appellate Court’s decision affirming Harris’s
conviction and sentence. People v. Harris, 904 N.E.2d 1077(Ill. App. 2009). Those facts are entitled to a presump-
tion of accuracy, see 28 U.S.C. § 2254(e)(1), and they are
in any event uncontested insofar as they are relevant
to our decision.
No. 12-1088 5
A. Jaquari’s Death and the Initial Investigation
In May 2005, Harris, age 23, lived in an apartment on
Chicago’s west side with her boyfriend, Sta-Von Dancy,
and their two sons, five-year-old Diante and four-year-
old Jaquari. In the afternoon of Saturday, May 14, Harris
and Dancy went to the laundromat across the street,
leaving their sons home alone for approximately
40 minutes with instructions to stay in the apartment.
While the clothes were drying, Harris returned home
and discovered Diante in the hallway and Jaquari
playing outside. Harris yelled at the children and
ordered them to their bedroom, where Jaquari began
crying. At this point, Dancy returned to the apartment,
spoke to his children in their room, and lay down to
take a nap.
When he awakened, Dancy discovered Jaquari lying
on the floor of the boys’ bedroom, unresponsive and
blue in the face. An elastic band hanging from Diante’s
fitted sheet was wrapped repeatedly (close to ten times)
around Jaquari’s neck. Dancy unwrapped the band and
performed mouth-to-mouth resuscitation. Jaquari re-
mained unconscious. Dancy lifted him up and ran
outside, where he met Harris returning again from the
laundromat. The two jumped in their car and raced off
in search of a hospital with Harris driving and Dancy
continuing CPR on Jaquari in the back seat. They called
911 and eventually met an ambulance that took Jaquari
to a hospital. Harris and Dancy returned home to
retrieve Diante and then went to the hospital, where
Jaquari was pronounced dead.
6 No. 12-1088
Chicago police officers arrived at the hospital to begin
their investigation into Jaquari’s death. After a brief
conversation with detectives around 7:15 p.m., Harris
and Dancy agreed to accompany them to the police
station to answer further questions. Detectives inter-
viewed the parents in separate rooms. With Diante on
her lap, Harris answered questions for approximately
30 minutes before the detectives left to continue their
investigation at the scene. Around midnight, Diante
was taken to his grandmother’s home by an official with
the Department of Child and Family Services. Back at
the family’s apartment, officers ordered crime scene
technicians to collect the sheet with the loose elastic
band and a telephone cord they suspected might have
been used to strangle Jaquari. After speaking with other
tenants in the building, the detectives returned to the
station to confront Harris with discrepancies between
her earlier account and what they had learned from
her neighbors, who said she had struck her children
with a belt that day. According to the detectives, after
approximately fifteen minutes of questioning, Harris
broke down, started crying, and spontaneously ad-
mitted, “I wrapped the phone cord around Jaquari’s neck
and then I wrapped the elastic band from the bed sheet
around his neck to make it look like an accident.” Harris,
904 N.E.2d at 1080. That first confession was undis-
putedly false: the autopsy would later show that the
telephone cord played no role in Jaquari’s death.
The detectives read Harris her Miranda rights, which
she said she understood. Over the next 24 hours,
Harris recanted her initial unwarned confession, slept
No. 12-1088 7
overnight in a holding cell, took a polygraph examina-
tion (with inconclusive results), and confessed a second
time — this time saying she had used the elastic band,
which conformed to the physical evidence. A prosecutor
arrived and obtained a videotaped statement of Harris’s
confession. In it, Harris stated that she had struck
Jaquari with a belt when she came over from the laundro-
mat and that because he would not stop crying, she
wrapped the sheet’s elastic band around his neck until
she saw blood coming from his nose. She said she then
left the room, attempted to fix a phone jack, and returned
to the laundromat to retrieve her clothing. She was
charged with first-degree murder. Her trial began on
October 20, 2005 in Cook County Circuit Court.
B. The Trial
At trial, Harris’s videotaped confession provided the
State’s most powerful evidence against her.1 Several police
officers and prosecutors testified for the prosecution to
discuss the investigation and interrogation of Harris.
1
In pretrial proceedings, Harris filed a motion to suppress
the videotaped confession as involuntary. She has argued — to
the trial court, on direct appeal, in the district court, and in
this appeal — that the police used an improper two-step
“question first, warn later” interrogation procedure, rendering
both the initial unwarned confession and later confessions
inadmissible. See Missouri v. Seibert, 542 U.S. 600 (2004). Because
we grant Harris’s habeas petition on other grounds, we do
not consider here whether a Seibert violation occurred.
8 No. 12-1088
Dancy was called by both the State and the defense. He
testified that when he found Jaquari lying inert on the
floor, he saw a clear mucus bubble coming out of the
boy’s nose. Dancy said he had seen the elastic band
before, hanging from Diante’s sheet on the top bunk
down almost to the bottom bed. Dancy also testified
that, on previous occasions, Jaquari had played with the
elastic by wrapping it around his neck. According to
Dancy, Diante was in the room lying on his top bunk
bed when he found Jaquari.
The State also called Dr. John Scott Denton, who had
conducted the postmortem examination. Dr. Denton
found impression or ligature marks on Jaquari’s neck
that were an “exact fit” to the blue sheet’s elastic band.
His report indicated that the impression marks did not
match the telephone cord that had initially aroused the
police’s suspicions and which Harris had identified as
the murder weapon in her first, “spontaneous” confession.
Dr. Denton also acknowledged that he had at first con-
cluded after the May 15 autopsy that Jaquari’s death
was accidental — specifically, that Jaquari had “become
entangled with an elastic bed fitted sheet and had fallen
to the ground from his upper bunk.” Harris, 904 N.E.2d
at 1083. Several days later, however, a detective told
Dr. Denton that Harris had confessed to strangling
Jaquari. Dr. Denton also learned from the investigation
report that Jaquari slept on the bottom bunk and that
traces of blood were found on the lower bed’s linen.
Dr. Denton then revised his medical opinion to con-
clude that Jaquari’s death was a homicide. Dr. Denton
did not say whether he was also told that Diante had
No. 12-1088 9
been present when Jaquari died and said he saw Jaquari
wrap the elastic around his own neck.2
Harris testified in her own defense. She testified that
when she came home from the laundromat to find her
children outside the apartment, she scolded them and sent
them to their room but did not strike them. She then
fiddled with a telephone jack, helped Dancy to the bed-
room to take a nap, and went across the street to get
her clothes from the dryer. Upon her return to the apart-
ment, she was met by Dancy outside bearing Jaquari
in his arms. This testimony obviously contradicted the
videotaped confession the jury had already seen. But
Harris told the jury that the videotaped confession was
the product of a 27-hour coercive interrogation in
which detectives pushed her, deprived her of food and
2
Harris has argued to the state courts and in her federal
habeas proceedings that the State failed to prove the corpus
deliciti element of first-degree murder — that is, proof that a
crime occurred. This due process claim is cognizable in
habeas review under Jackson v. Virginia, 443 U.S. 307, 319 (1979),
if no “rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Under
Illinois law, “in establishing the corpus delicti, there must be
some evidence, apart from the confession, demonstrating that a
crime occurred.” People v. Willingham, 432 N.E.2d 861, 864 (Ill.
1982). Harris asserts that Dr. Denton’s opinion that Jaquari’s
death was a homicide was derived from her confession and
therefore did not independently corroborate criminal agency.
Because we grant habeas relief on other grounds, we do not
pass on Harris’s due process argument.
10 No. 12-1088
water, threatened her, and promised her lenient treat-
ment in exchange for cooperation. In the videotaped
confession, though, she had said that the police had fed
her and treated her well and had made neither threats
nor promises.
The defense theory of accidental death was supported
by Dancy, who had previously seen Jaquari coiling the
sheet’s elastic band around his neck, and by other
family members who spoke more generally about his
curiosity and playfulness. For example, one aunt said
that she had once seen Jaquari put a plastic laundry
bag over his face.
The defense’s key witness, however, was six-year-old
Diante, who was with Jaquari when he died. The day
after Jaquari’s death, Diante was interviewed by Ale
Levy, an investigator with the Child Advocacy Center,
an agency that partners with the Chicago Police Depart-
ment, the State’s Attorney, and the Department of Child
and Family Services. A Chicago police detective who
was present for Levy’s interview took notes. The notes
state that Diante “knows his age,” “his colors,” “different
amounts,” his “grade in school,” and the “difference
between truth/lies.” Diante indicated that he “knows
about Jaquari’s death, knows Jaquari was at the hospi-
tal.” Diante also said that Jaquari had “wanted to go
outside” but he “got in trouble.” “Mom and Dad came
home [and] gave both of them a spanking. Mom
spanked Diante with Belt on his leg,” which “was bleed-
ing.” Most important, Diante said that “Jaquari was
playing [and] wrapped elastic around neck from blue
No. 12-1088 11
sheet” and that Diante was “playing Spiderman game”
and “couldn’t help Jaquari get out of his sheet.” Levy
wrote, “Diante & Jaquari were supposed to go to sleep.”
Towards the end, Jaquari told Levy, “ ‘Jaquari had a
bubble’ while he was asleep.” He said, “Jaquari died
it happened in their bedroom” and “Diante was
sleeping when Jaquari died.”
C. The Competency Hearing and Ruling
Although Diante was also listed as a witness for the
State, the State moved to disqualify him as incompetent
to testify. Under Illinois law, every person is presumed
competent to be a witness and will be permitted
to testify unless he or she is either (1) “Incapable of ex-
pressing himself or herself concerning the matter so as
to be understood, either directly or through interpreta-
tion by one who can understand him or her”; or
(2) “Incapable of understanding the duty of a witness to
tell the truth.” 725 ILCS 5/115-14(a), (b); see People v.
Velasco, 575 N.E.2d 954, 959 (Ill. App. 1991). The burden
of proof is on the party challenging competency. See
725 ILCS 5/115-14(c); People v. Hoke, 571 N.E.2d 1143,
1148 (Ill. App. 1991).
The trial court began the competency hearing with a
basic legal error, stating “the Defense, it’s their witness
whom they’re attempting to call. They shall bear the
burden of proof in demonstrating Diante’s competency.”
No objection was made. With defense counsel’s agree-
ment, the hearing took place without Harris present.
Diante took the stand and fielded some preliminary
12 No. 12-1088
questions from defense counsel, spelling his name and
stating his age, birthday, the cities where he had lived,
his teacher’s name, and the colors of certain objects. Asked
by the court if he knew the difference between a truth
and a lie, Diante responded, “Telling a lie, you might get
in trouble. Telling the truth, you might get a star,”
which he agreed was “a good thing.”
Diante also described the events from the day Jaquari
died. On the last day that Diante had been in his room
at the North Chicago apartment, he had been with
Jaquari and was “Playing my game.” Defense counsel
asked what Jaquari was doing and Diante replied, “Jaquari
was playing with that string and wrapping it around
his neck.” S.A. 118. Asked what string he was referring
to, Diante said it was the band from the blue sheet.
He also testified that no one else was in the room with
them when Jaquari was wrapping the sheet’s elastic
around his neck. The prosecutor later asked whether
Jaquari “wrapped something around his neck from the
sheet.” Diante nodded and said that the sheet was “On
my bed” and that Jaquari was “Standing on the floor”
while Diante was “Sitting, playing with my toys.” S.A. 125.
The prosecutor also asked Diante if he remembered
telling a Department of Child and Family Services in-
vestigator named Karen Wilson — who spoke with
Diante the day after Levy did — that he was asleep
when Jaquari “got hurt.” Diante answered yes. S.A. 127.
In his direct questioning, defense counsel had asked
Diante whether he knew “the difference between real
people and cartoons.” S.A. 118. Diante said he did and
No. 12-1088 13
named “Scooby-Doo, Tom and Jerry” as examples of
the latter. S.A. 119. Later, the prosecutor followed up
on this line of questioning, but after referring to the
original difference between real people and cartoons,
the prosecutor shifted to use the word “real” differently
to ask about the difference between real people and
fictional characters. This shift caused some confusion:
Q Okay. Now, you were talking about some cartoons
a couple of minutes ago. You were talking about
Scooby-Doo, and cartoons and real things, right?
A (Nodding.)
Q Do you think Spiderman is real?
A Yes.
Q And have you ever seen Spiderman in person?
A Yes.
Q Okay. And what did you say to Spiderman when
you saw him in person?
A Nothing.
Q You didn’t say anything to him?
A (Nodding.)
Q Have you ever seen Scooby-Doo?
A No.
Q Okay. Is Scooby-Doo real?
A No.
Q Okay. Scooby-Doo is what?
14 No. 12-1088
A A movie.
Q Okay. And how about The Hulk? Is The Hulk real
or is he something else?
A Something else.
...
Q Okay. Let’s see. How about Santa Claus, is Santa
Claus real?
A Yes.
Q And have you ever seen Santa Claus in person?
A No.
S.A. 122-23. Later, the prosecutor asked whether Diante
believed the tooth fairy was real, to which he said yes.
S.A. 129. Consistent with the real-versus-cartoon frame-
work established by the defense, Diante evidently under-
stood the prosecutor to be asking whether Spiderman
and Santa Claus were animated or human characters,
and that they were “real” insofar as they were not
cartoons, which was correct. See, e.g., Elf (New Line
Cinema 2003) (live-action film); Spider-Man (Columbia
Pictures 2002) (same). At trial, Dancy testified that
Diante was familiar with the recent Spiderman live-
action films at the time of Jaquari’s death.
The prosecutor asked Diante about Jaquari, and once
again ambiguous questioning and a failure to follow up
generated confusion:
Q . . . . You told me earlier that you have seen
Jaquari in heaven, right?
No. 12-1088 15
A Yes.
Q And do you remember the last time you saw
Jaquari in heaven?
...
A Where I was in the rainbow.
Q When you were in the what?
A In the rainbow.
Q “In the rainbow”? You were in the rainbow?
A Uhn-uhn. No, in the car.
Q Oh, in the car. And you saw Jaquari in heaven
then?
A (Nodding.)
S.A. 123-24. The transcript reads, “rainbow,” but the
context shows that Diante was saying “limo.” That
was the conclusion of Dr. Robert Galatzer-Levy, a child
psychiatrist who conducted a thorough competency
assessment of Diante six months after trial. See S.A. 141.
(“[H]is pronunciation of the word ‘limo’ was difficult
for this evaluator to understand; I initially believed he
was saying something like ‘lambo.’ ”).
As for the “heaven” reference, during Dr. Galatzer-
Levy’s evaluation, Diante described a church as a “church
with heaven” and a courtroom as a “church with the
judge.” Id. That would be consistent with the rest of
Diante’s testimony on the subject at the competency
hearing, in which he said that other living family
16 No. 12-1088
members were present “in heaven” in an exchange
that took on great importance for the judge:
Q Who else was in heaven with him?
A My brother and my cousin.
Q Okay. What’s your brother’s name?
A Junior.
Q Okay. And he was there, too?
A (Nodding.)
Q And did you talk to Jaquari then?
A Uh-huh.
Q Did he say anything to you?
A Yes.
Q What did he say to you?
A He—He said, my mommy killed my brother,
and my mommy didn’t.
Q Okay. Now, I want to ask you a little bit about
your bedroom . . . .
S.A. 124-25. Because this account involves both of
Diante’s brothers, we cannot be completely certain
whether the “He” in the penultimate line refers to
Junior or to Jaquari. The difference bears on both the
competency determination and Harris’s guilt or inno-
cence. If the speaker was Junior, Diante was describing
what his surviving brother Junior had told him at the
wake or funeral: Junior said that Harris had killed
Jaquari, and Diante was telling the judge that was
No. 12-1088 17
wrong. The testimony is entirely different if Diante
meant that Jaquari appeared to his brothers from
beyond the grave to accuse their mother of killing him.
The first reading is supported by the fact that Diante
said, “He said, my mommy killed my brother,” not “He
said, my mommy killed me,” or “He said, my mommy
killed him.” The best support for the second reading is
that Jaquari was the brother the prosecutor had last
mentioned (three questions earlier), but it’s safe to say
that six-year-old Diante was not precise with pronouns
and antecedents. Given the ambiguity, one would have
expected counsel or the court to ask some follow-up
questions to learn what Diante meant, at least before
assuming that he was reporting a visit from beyond
the grave. But nothing more was said on the subject.
And not only did the court assume that this testimony
referred to a communication with Jaquari’s spirit, but it
relied heavily on his report of this supposed “fantasy” to
find that Diante was not competent to testify.
At the close of Diante’s testimony, the court asked him:
“did you — anyone tell you what you should say here
when you got to court?” Diante said “No.” “Have you
spoken before with any of the people who are here
today before you came to court?” Diante again answered
“No.” S.A. 131.3 Then, the following final exchange took
place between the judge and Diante:
3
Apparently, Diante had spoken with the prosecutor. Dkt. 1-17
at 92. Defense counsel had also spoken to Diante, but “that
was actually here at court . . . prior to [his] taking the stand.”
Id. at 94.
18 No. 12-1088
Q Diante, you [told] me you remember playing
Spiderman in your bedroom with your brother, is
that right?
A Yes.
Q Do you remember anything else that happened
that day?
A No.
Q Nothing at all?
A No.
Q Okay. Anything further, Mr. Wright?
S.A. 132.
Following Diante’s testimony, defense counsel said
that he wished to call Ale Levy, the investigator who
interviewed Diante the day after his brother’s death. Levy
was not present at the courthouse, however. Defense
counsel said that he had subpoenaed Levy, but neither the
court nor the prosecutor was familiar with her. The
court asked, “have you made any effort to procure her
appearance here at this time, so as not to delay these
proceedings?” Dkt. No. 1-17 at 81. Defense counsel said
he had not. In response to the court’s question about the
substance of Levy’s expected testimony, defense counsel
said that she “actually interviewed Diante Dancy; and
asked him a lot of the same questions that was asked,” and
“he was able to tell her, on that day, which is roughly 12,
15 hours after the event, exactly everything that hap-
pened.” Id. at 82. The trial judge replied, “I’m not saying
it’s not relevant. I’m just at a lack to find out what that
No. 12-1088 19
would be, in order to determine whether I would
grant a continuance to get that witness here.” Id. at 83.
Counsel then said the defense had no further wit-
nesses. The court confirmed that counsel was “not choos-
ing to call that person at this time?” Counsel answered no.
The State then called Karen Wilson, the second inves-
tigator to interview Diante after Jaquari died. She
testified that in her conversation with Diante, he stated
that Scooby-Doo, Spiderman, and Santa Claus were real
persons. Dkt. No. 1-17 at 86. She also said that
Diante told her he was asleep when his brother got hurt.
On cross-examination, Wilson agreed that Diante had
said he did not see “mommy or daddy tie a sheet
around Jaquari’s neck.” Dkt. 1-17 at 89.
The court heard oral argument. Defense counsel went
first, contending that Jaquari really was in heaven, and
that it was perfectly reasonable for a six-year-old to
believe in Santa Claus and the tooth fairy, and that such
beliefs did not affect his “ability to recall the facts on
May 14th.” Dkt. No. 1-17 at 98. Counsel concluded by
saying “we believe that we’ve met our burden” showing
that Diante was competent to testify. Id. at 100. The prose-
cutor argued that Diante was incompetent because of
his “inability to differentiate between reality and
fantasy with the Spiderman, Santa Claus, tooth fairy
characters,” and that he testified not just that he believed
his brother was in heaven but that he “saw his brother
in heaven.” Id. at 101 (emphasis added). In rebuttal,
defense counsel stated: “The only issue is that . . . he
observed on that day Jaquari wrap the sheet around his
20 No. 12-1088
own neck. He knew where they were at, he knew who
was present. That’s the only issue that is relevant as
relates to the information for him being called as a wit-
ness.” Id. at 102.
The court ruled that Diante was incompetent. The judge
began by saying: “Defense counsel misperceives what
the issue is with regard to witness competency” because “a
two month old baby could have been in the room
and witnessed or observed what occurred, but that would
not make them a competent witness if they’re lacking
other criteria.” He acknowledged that Illinois had abol-
ished age-based presumptions of incompetency and
that the statute now provided for only two bases for
disqualification: (1) inability to express oneself so as to
be understood; or (2) inability to understand the duty of
a witness to tell the truth. S.A. 85-86; see 725 ILCS 5/115-
14. The court first addressed the second prong, saying:
“I don’t find any questions at all that were posed to
the witness with regard to his understanding of any
concept of a duty to tell the truth when presented in a
courtroom.” S.A. 87. Diante’s testimony that “[y]ou get
in trouble” for telling a lie and “[y]ou get a star” for
telling a truth “gave the Court very little insight into
whether or not Diante knows what is the truth and what
is a lie or not true.” S.A. 86. “The witness was never
asked whether he would promise to tell the truth and
what that might mean to him here in this proceeding.”
S.A. 88.
Turning to the first prong, the court said it had “consid-
erable question as to that issue,” identifying a number of
No. 12-1088 21
factors that cast doubt on Diante’s ability to “perceive
and remember events and to relate them.” S.A. 88. First,
Diante recalled “playing Spiderman” and “the aspect
with the cord and the neck,” but the court, referring to
its own question at the end of his testimony, said Diante
“remembers nothing else at all from that day.” Id. Second,
the court questioned whether Diante had the ability to
distinguish between reality and fantasy:
Diante is still at that point in his life . . . where the
Court cannot say that he has moved through that
youthful period or childhood period of fantasy
with regard to still believing certain things to be
real, whether it be Spiderman, who he says, he has
met in person, the tooth fairy, Santa Claus. . . . He
said, he met with his brother in heaven and his
brother told him his mother killed him. I mean,
that is not real. That is a fantasy.
S.A. 89-90. The court then concluded that Diante was
incompetent to testify under either prong of the statute:
And so I do believe at this point in time Diante lacks
the ability to differentiate between reality and fan-
tasy. And also, I believe he lacks the ability to
recall the events of the date in question and to be
able to communicate them effectively here in court
under an understanding and acceptance of a duty
to testify truthfully in this case. And again, it is not
clear to this Court that even he understands to dif-
ferentiate significantly between those two concepts,
truthfulness and falsehood.
S.A. 90. Diante did not testify. The jury convicted Harris
of first-degree murder.
22 No. 12-1088
D. Post-Conviction Proceedings
With new counsel, Harris moved for a new trial. Her
supplemental motion included four constitutional
claims: (1) the court violated Harris’s right to call
witnesses in her own defense in deeming Diante incom-
petent to testify (Sixth Amendment right to compulsory
process); (2) the evidence was insufficient to prove
the corpus delicti element of murder (Due Process); (3) the
court erred in denying her motion to suppress her con-
fession (Fifth Amendment right against self-incrimina-
tion); and (4) trial counsel was ineffective (Sixth Amend-
ment right to counsel). Her motion included Dr. Galatzer-
Levy’s competency assessment. He had concluded that
Diante was “neither incapable of expressing himself
concerning the events surrounding his brother’s death,
nor incapable of understanding the duty of a witness to
tell the truth.” S.A. 143.4 Harris also submitted the in-
terview notes of Child Advocacy Center investigator
Ale Levy and affidavits from two expert witnesses on
false confessions and pediatric asphyxiation.
4
Dr. Galatzer-Levy wrote that Diante was “able to clearly
articulate during my evaluation what he observed concerning
the circumstances surrounding his brother’s death,” including
that “ ‘Jaquari killed his own self,’ that Jaquari wrapped a
sheet around his neck (indicating physically with his hands
what he saw)” and that “Diante’s mother and father were not
in the room when this occurred.” S.A. 139. Although
Diante’s sequencing of the events surrounding his brother’s
death was “sometimes confused,” Dr. Galatzer-Levy said
this was “typical of a child of Diante’s age.” Id.
No. 12-1088 23
The trial court denied Harris’s motion for a new trial. In
addressing the issue of Diante’s competency hearing, the
court conceded that it had erred in placing the burden
of proof on Harris but held that it would have reached
the same result even if the State had borne the burden.
In his ruling from the bench, the trial judge said: “It was
clear to the Court that [Diante] was in the world of a
child. That he could not do those things that the law
requires competent witnesses to do, so that was upon
that basis that I found [Diante] not competent to testify,
and that would have been the outcome or my finding
regardless of whether I had articulated the correct
burden of proof.” S.A. 59. Aside from this vague, post hoc
justification for its ruling and some recitation of the
statutory language, the court did not elaborate on its
ruling at trial that Diante was incompetent to testify.
The trial court did not address Harris’s Compulsory
Process claim. The court sentenced Harris to 30 years in
prison.
On direct appeal, the Illinois Appellate Court affirmed.
People v. Harris, 904 N.E.2d 1077 (Ill. App. 2009). The
panel majority held that: (1) the trial court did not abuse
its discretion in finding Diante incompetent under
Illinois’s witness competency statute and that, even if it
had, any error was harmless because Diante’s testimony
would not have influenced the verdict; (2) Dr. Denton’s
revised conclusion that Jaquari’s death was a homicide
was sufficiently independent to establish that a crime
had occurred; (3) the motion to suppress was properly
denied because Harris was not in custody during her
initial, unwarned confession; and (4) Harris failed to
24 No. 12-1088
establish an ineffective assistance of counsel claim
because “she suffered no prejudice from her counsel’s
purported deficiencies.” Id. at 1098. One judge dis-
sented, taking the view that Harris’s confession
should have been suppressed. Id. at 1100-02 (Tully, J.,
dissenting). Neither the majority nor the dissent said
anything about Harris’s Compulsory Process claim. The
Supreme Court of Illinois denied Harris’s petition for
leave to appeal.
Harris filed a petition for habeas corpus under 28
U.S.C. § 2254, seeking relief on the same grounds she
presented to the state courts. With the exception of the
competency issue, the district court found reasonable
the Illinois Appellate Court’s adjudication of each of
Harris’s four claims. See Harris v. Thompson, No. 10 cv
6257, 2011 WL 6257143 (N.D. Ill. Dec. 14, 2011). As to the
incompetency determination, the district court did not
recognize that the state courts had neglected to reach
Harris’s Compulsory Process claim. Instead, it appears to
have treated the state courts’ denial of Harris’s state
evidentiary law claims as an adjudication of her Sixth
Amendment claim, as well. The district court concluded
that the appellate court unreasonably affirmed the trial
judge on the basis of the competency statute’s second
prong (incomprehension of the duty to tell the truth),
since the trial judge had said that he had heard no testi-
mony on that question, and it was the State that bore
the burden of proof. However, the appellate court had
also affirmed the incompetency determination on the
grounds of the first prong (inability to be understood),
and the district court concluded that this ground for
affirmance was reasonable because there was some evi-
No. 12-1088 25
dence on that issue. The district court also found reason-
able the appellate court’s conclusion that any error in
disallowing Diante’s testimony was harmless, and the
court denied the petition for a writ of habeas corpus.
Harris timely appealed. The parties agree that she has
exhausted her state remedies and no procedural bar
applies to any of the claims presented.
II. Habeas Corpus Review Under 28 U.S.C. § 2254We have jurisdiction under 28 U.S.C. § 2253(a), and we
review de novo the district court’s denial of habeas
corpus relief. See Steffes v. Pollard, 663 F.3d 276, 281 (7th
Cir. 2011). The statutory authority of federal courts to
issue a habeas writ for persons in state custody is § 2254,
as amended by the Antiterrorism and Effective Death
Penalty Act (AEDPA). Under AEDPA, a habeas petition
may be granted only if a state court’s ruling on a
federal constitutional question “was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law,” or “was based on an unreasonable
determination of the facts in light of the evidence pre-
sented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)
& (2).
In applying this “difficult to meet . . . and highly deferen-
tial standard,” Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011) (internal quotation marks omitted), federal courts
must avoid “using federal habeas corpus review as a
vehicle to second-guess the reasonable decisions of state
courts.” Parker v. Matthews, 132 S. Ct. 2148, 2149 (2012),
quoting Renico v. Lett, 130 S. Ct. 1855, 1866 (2010). Rather,
26 No. 12-1088
“a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was
so lacking in justification that there was an error well
understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington
v. Richter, 131 S. Ct. 770, 786-87 (2011). Our review
under § 2254(d) “is limited to the record that was
before the state court.” Pinholster, 131 S. Ct. at 1398.
AEDPA’s deferential standard of review applies only
to claims that were actually “adjudicated on the merits
in State court proceedings.” 28 U.S.C. § 2254(d). Where
the state courts did not reach a federal constitutional
issue, “the claim is reviewed de novo.” Cone v. Bell, 556
U.S. 449, 472 (2009). When no state court has squarely
addressed the merits of a habeas claim, “we review
the claim under the pre-AEDPA standard of 28 U.S.C.
§ 2243, under which we ‘dispose of the matter as law
and justice require.’ ” Toliver v. Pollard, 688 F.3d 853, 859
(7th Cir. 2012), quoting Morales v. Johnson, 659 F.3d 588,
599 (7th Cir. 2011). The operative decision under review
is that of the last state court to address a given claim on
the merits. See Greene v. Fisher, 132 S. Ct. 38, 45 (2011);
Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006). In this
case, that is the Illinois Appellate Court’s decision in
People v. Harris, 904 N.E.2d 1077 (Ill. App. 2009).
III. Compulsory Process Clause Claim
A. Standard of Review
The Sixth Amendment guarantees the accused the
right to “have compulsory process for obtaining wit-
No. 12-1088 27
nesses in his favor.” As a threshold matter, we must
determine whether AEDPA deference applies to this
claim. The habeas petitioner clearly presented a federal
constitutional claim to the state courts, which affirmed
her conviction in a published opinion but did not
explicitly address or even acknowledge the existence of
the federal constitutional issue. In her brief to the
state court, Harris alleged a deprivation of “her right to
compulsory process under the Sixth Amendment of the
U.S. Constitution and Article I, § 8 of the Illinois Con-
stitution,” cited the foundational Supreme Court case,
Washington v. Texas, 388 U.S. 14 (1967), and other federal
and state cases, and set forth the applicable constitu-
tional standard. See Dkt. No. 1-5 at 42. Yet the state
court analyzed the disqualification of Diante as a wit-
ness purely as an issue of state evidentiary law, re-
viewing the trial court’s incompetency determination
for an abuse of discretion and harmless error. See 904
N.E.2d at 1091-95. At the beginning of the relevant
section of its opinion, the court acknowledged that
Harris “assert[ed] that the trial court abused its discretion
and violated her constitutional rights when it ruled that
Diante Dancy was incompetent to testify.” Id. at 1091-92(emphasis added). But the appellate court never
identified which constitutional rights were at issue or
referred to the Compulsory Process Clause, the Sixth
Amendment, or even the Due Process Clause. And the
court cited no case — state or federal — on the constitu-
tional issue.
The appellate court’s silence on the issue fell below
even the low threshold a state court decision must meet
28 No. 12-1088
to qualify as “on the merits” under AEDPA. The state
court need not explain its reasoning in rejecting the peti-
tioner’s federal claim. See Richter, 131 S. Ct. at 784; see
also Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005)
(“AEDPA’s requirement that a petitioner’s claim be
adjudicated on the merits by a state court is not an en-
titlement to a well-articulated or even a correct decision
by a state court.”). Nor must it cite or even be aware of any
particular cases. See Richter, 131 S. Ct. at 784. Sometimes
even saying nothing at all will suffice. In Richter, the
Supreme Court held that the California Supreme
Court’s one-sentence summary order denying a
prisoner’s petition for state collateral relief was “on the
merits” for AEDPA purposes: “When a federal claim
has been presented to a state court and the state court
has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to
the contrary.” 131 S. Ct. at 784-85. But that “presumption
may be overcome when there is reason to think some
other explanation for the state court’s decision is more
likely,” though there was no such reason in Richter. Id.
at 785. Although the state supreme court’s summary
dismissal of post-conviction relief in Richter did not
address the merits of the petitioner’s federal constitu-
tional arguments, “the state court did not say it was
denying the claim for any other reason,” such as a proce-
dural default or other independent and adequate state-
law ground. Id. at 784.
In this case, by contrast, we have ample reason to
think some other explanation for the state court’s deci-
No. 12-1088 29
sion is more likely — the very reasons the state court
actually gave, which were all based on state evidence
law, not federal constitutional law. The state court’s
decision on the incompetency ruling reached four legal
conclusions. First, the trial court’s “procedural error”
in misallocating of the burden of proof was not “outcome-
determinative” in the ultimate determination of incom-
petency. Harris, 904 N.E.2d at 1092. Second, the trial
court did not “base[ ] its analysis on factors outside
Illinois statutory law.” Id. at 1093. Third, the trial
court’s “determination of incompetency” was not “unsup-
ported by the record.” Id. at 1094. Finally, even assuming
that the trial court had erred in its ruling, the error
had been “harmless beyond a reasonable doubt.” Id. at
1094. In sum, the appellate court’s adjudication rested
entirely on Harris’s claim of state evidentiary error. It
did not hint at any federal (or state) constitutional
ground of decision. The Richter presumption and AEDPA
deference therefore do not apply. See Sussman v. Jenkins,
642 F.3d 532, 534 (7th Cir. 2011) (Ripple, J., in chambers)
(denying motion to stay mandate and concluding that
Richter presumption was inapplicable where state
appellate court issued an opinion but did not address
the constitutional question); see also Sussman v. Jenkins,
636 F.3d 329, 350 (7th Cir. 2011) (underlying opinion).
This also is not a case where an earlier state opinion
“fairly apppear[s] to rest primarily upon federal law,”
but a later one is silent or cryptic. See Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991), quoting Coleman v. Thompson,
501 U.S. 722, 740 (1991). In that situation, the federal
habeas court “ ‘looks through’ [ the later decision] to the
30 No. 12-1088
last reasoned decision” and treats the later one as
reaching the merits if the earlier one did. Ylst, 501 U.S.
at 805. In this case neither the state appellate court nor
trial court mentioned Harris’s compulsory process
claim. When we look for the “last explained state-
court judgment” on Harris’s Sixth Amendment right
to present a defense, we do not find one. No state court
has actually decided it.
It follows from the Supreme Court’s AEDPA jurispru-
dence that where a state court overlooks a constitu-
tional claim that was fairly presented to it, federal
review is de novo. In Cone v. Bell, 556 U.S. 449 (2009), the
state post-conviction court deliberately bypassed a
federal claim because it believed — erroneously — that
the state courts had already addressed it on direct ap-
peal. Because the state courts therefore never reached the
merits of the Brady claim, the Supreme Court reviewed the
issue de novo. Id. at 472. Cone shows that when the state
court knowingly (but mistakenly) declines to address a
constitutional claim, AEDPA deference does not apply.
It would be odd, then, if AEDPA deference did apply
when the state court’s decision simply overlooked the
constitutional issue, as happened here.
This case is also analogous to the relatively common
situation in which the state courts address one prong of
the two-prong Strickland v. Washington test for ineffec-
tive assistance of counsel, but not the other. In that situa-
tion, federal courts apply AEDPA deference to the
prong the state courts reached but review the unaddressed
prong de novo. E.g., Rompilla v. Beard, 545 U.S. 374, 390
No. 12-1088 31
(2005) (de novo review where state courts did not reach
prejudice prong); Wiggins v. Smith, 539 U.S. 510, 534 (2003)
(same); see also Sussman, 636 F.3d at 350 (applying
Rompilla/Wiggins rule after Richter); accord, Toliver v.
Pollard, 688 F.3d 853, 857 (7th Cir. 2012) (same); Hooks
v. Workman, 689 F.3d 1148, 1188 (10th Cir. 2012) (same);
Foster v. Wolfenbarger, 687 F.3d 702, 709 (6th Cir. 2012)
(same); Johnson v. Sec’y, DOC, 643 F.3d 907, 930 (11th
Cir. 2011).
Here, the state courts simply have not addressed the
federal constitutional issue. When that happens, federal
habeas review must be de novo for there is no state court
judgment to which we could defer. See, e.g., Fenenbock v.
Dir. of Corrections, 681 F.3d 968, 978 n.12 (9th Cir. 2012)
(“No deference is due to the last reasoned state court
opinion because it failed to address the constitutional
question, resolving the claim only on state evidentiary
grounds.”); accord, Campbell v. Bradshaw, 674 F.3d 578,
596 (6th Cir. 2012), petition for cert. filed (U.S. July 18,
2012) (No. 12-5374); Han Tak Lee v. Glunt, 667 F.3d 397,
403 (3d Cir. 2012); Clements v. Clarke, 592 F.3d 45, 55 (1st
Cir. 2010).5
5
In some cases, perhaps, the state court’s analysis of state law
may be substantively co-extensive with the federal constitu-
tional issue. See, e.g., Childers v. Floyd, 642 F.3d 953, 970, 971 n.19
(11th Cir. 2011) (en banc) (concluding that AEDPA deference
applied to review of Confrontation Clause claim because
state court’s disposition under state evidentiary law in effect
“addressed the Confrontation Clauses’s concerns,” which
(continued...)
32 No. 12-1088
AEDPA requires federal courts to accord substantial
deference to state court adjudications of federal constitu-
tional claims. Such deference is “part of the basic
structure of federal habeas jurisdiction,” which is “de-
signed to confirm that state courts are the principal
forum for asserting constitutional challenges to state
convictions” and to honor “the State’s significant interest
in repose for concluded litigation.” Richter, 131 S. Ct. at
787, quoting Harris v. Reed, 489 U.S. 255, 282 (1989) (Ken-
nedy, J., dissenting). Where the state courts have over-
looked a constitutional claim, however, these comity
and finality concerns have less force. In the absence of
a state decision on the merits, our review is “not circum-
scribed by a state court conclusion” on the issue.
Wiggins, 539 U.S. at 534. The Illinois courts did not adjudi-
cate Harris’s Compulsory Process Clause claim “on
the merits,” so our review is de novo.6
(...continued)
“did not slip the [state] court’s collective mind”), petition for
cert. filed, (U.S. July 6, 2011) (No. 11-42). In this case, we
need not decide that difficult issue, for there is no colorable
argument that the Illinois Appellate Court effectively
addressed the Compulsory Process Clause issue when it
decided that the trial court did not abuse its discretion in
finding Diante incompetent to testify. The constitutional
implications of the competency ruling were simply overlooked.
6
Even if this court were to indulge the presumption that the
Illinois courts actually adjudicated the Compulsory Process
claim “on the merits,” the outcome of our review would be
(continued...)
No. 12-1088 33
B. The Constitutional Standard
The Compulsory Process Clause, which provides that
the accused shall have the right “to have compulsory
process for obtaining witnesses in his favor,” together
with the Due Process Clause of the Fourteenth Amend-
ment, embodies a substantive right to present a mean-
ingful and complete criminal defense. See Holmes v.
South Carolina, 547 U.S. 319, 324 (2006); Taylor v. Illinois,
484 U.S. 400, 408 (1988). “The right to offer the testimony
of witnesses, and to compel their attendance, . . . is in
plain terms the right to present a defense, the right
to present the defendant’s version of the facts as well as
the prosecution’s to the jury so it may decide where the
truth lies.” Washington v. Texas, 388 U.S. 14, 19 (1967).
“Few rights are more fundamental than that of an
accused to present witnesses in his own defense,” Taylor,
484 U.S. at 408 — a right Chief Justice Marshall described
as “sacred.” United States v. Burr, 25 F. Cas. 30, 33 (C.C.D.
Va. 1807). The compulsory process right is an “essential
attribute of the adversary system itself,” Taylor, 484 U.S.
at 408, and “imperative to the function of the courts,”
which “depend on full disclosure of all the facts, within
the framework of the rules of evidence.” United States
v. Nixon, 418 U.S. 683, 709 (1974).
6
(...continued)
no different. For the reasons described below, the state court’s
harmless error analysis (which would stand as a proxy for,
at least, the materiality prong of the constitutional issue)
would be both an unreasonable determination of facts and
an unreasonable application of law in the instant case.
34 No. 12-1088
Of course, the right is not unlimited. The defendant
“must comply with established rules of procedure
and evidence designed to assure both fairness and reli-
ability.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973).
The accused “does not have an unfettered right to
offer testimony that is incompetent, privileged, or other-
wise inadmissible under standard rules of evidence.”
Taylor, 484 U.S. at 410. While a “trial court may not
ignore the fundamental character of the defendant’s
right to offer the testimony of witnesses in his favor,” the
“countervailing public interest[ ]” in the “integrity of
the adversary process, which depends both on the pre-
sentation of reliable evidence and rejection of unreliable
evidence, . . . must also weigh in the balance.” Id. at
414, 415. Thus, the Compulsory Process Clause does
not require criminal courts to admit evidence that is
irrelevant, Crane v. Kentucky, 476 U.S. 683, 689-90 (1986),
testimony by persons who are mentally infirm, see Wash-
ington, 388 U.S. at 23 n.21, or evidence that represents
a half-truth, see United States v. Nobles, 422 U.S. 225,
241 (1975).
On the other hand, the exclusion of defense evidence
“abridge[s] an accused’s right to present a defense”
where the restriction is “ ‘arbitrary’ or ‘disproportionate
to the purposes’ [it is] designed to serve,” and the
evidence “implicate[s] a sufficiently weighty interest of
the accused.” United States v. Scheffer, 523 U.S. 303, 308-09
(1998), quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987).
For example, the Supreme Court has struck down
under the Compulsory Process Clause a rule against
introducing the testimony of an alleged accomplice,
Washington, 388 U.S. at 22-23; an application of the
No. 12-1088 35
hearsay bar to statements that “were originally made
and subsequently offered at trial under circumstances
that provided considerable assurance of their reliabil-
ity,” Chambers, 410 U.S. at 300; the exclusion of evidence
bearing on the credibility of a voluntary confession,
Crane, 476 U.S. at 688-91; and a per se rule excluding
all post-hypnosis testimony, Rock, 483 U.S. at 56-62.
The Court has acknowledged the “power of States to
exclude evidence through the application of evidentiary
rules that themselves serve the interests of fairness
and reliability—even if the defendant would prefer to
see that evidence admitted.” Crane, 476 U.S. at 690. But
it simultaneously observed that the “opportunity
[to be heard] would be an empty one if the State
were perm itted to exclude competent, reliable
evidence . . . when such evidence is central to the defen-
dant’s claim of innocence.” Id.The applicable constitutional standard is this: to
establish that her right to compulsory process was
violated by the exclusion of Diante’s testimony, Harris
must show that (1) the testimony would have been
“both material and favorable” to her defense, United
States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982), and
(2) that the exclusion was “arbitrary” or “disproportionate”
to the evidentiary purpose advanced by the exclusion,
Scheffer, 523 U.S. at 308, quoting Rock, 483 U.S. at 56.
We conclude that Harris has made each showing.7
7
Several other circuits have applied equivalent standards for
adjudicating Compulsory Process claims. See, e.g., Jackson v.
(continued...)
36 No. 12-1088
1. Material and Favorable to the Defense
In Valenzuela-Bernal, the Supreme Court imported the
materiality requirement of the Brady v. Maryland line
of cases into the Compulsory Process Clause analysis.
Under this standard, the exclusion of a witness is
material “only if there is a reasonable likelihood that
the testimony could have affected the judgment of the
(...continued)
Nevada, 688 F.3d 1091, 1096 (9th Cir. 2012) (“Additionally, a
violation of the right to present a defense does not occur any
time such evidence is excluded, but rather only when its
exclusion is ‘arbitrary or disproportionate to the purposes
[the exclusionary rule is] designed to serve.’ ”), quoting Holmes
v. South Carolina, 547 U.S. 319, 324 (2006); United States v.
Hardy, 586 F.3d 1040, 1045 (6th Cir. 2009) (to determine
whether exclusion of defense evidence violated right of
accused to present a defense, courts first “weigh a defendant’s
Compulsory Process Clause rights against . . . countervailing
public interests” and then examine “whether the omitted
evidence evaluated in the context of the entire record creates a
reasonable doubt that did not otherwise exist”) (internal
quotation marks and brackets omitted); Gov’t of Virgin Islands
v. Mills, 956 F.2d 443, 446 (3d Cir. 1992) (“[F]or Mills
to establish that he was convicted in violation of his Sixth
Amendment right to compulsory process, he must show:
First, that he was deprived of the opportunity to present
evidence in his favor; second, that the excluded testimony
would have been material and favorable to his defense; and
third, that the deprivation was arbitrary or disproportionate
to any legitimate evidentiary or procedural purpose.”), citing
Rock, 483 U.S. at 56.
No. 12-1088 37
trier of fact.” Valenzuela-Bernal, 458 U.S. at 874 (govern-
ment’s deportation of defense witness did not violate
Sixth Amendment because defendant did not show a
reasonable probability that he would not have been
convicted if the witness had testified). This materiality
standard is also identical to the one used to determine
whether ineffective assistance of counsel is “prejudi-
cial” under Strickland. See 466 U.S. at 694. (This
equivalence between the two standards is helpful
when we address Harris’s Strickland claim in Part IV,
below.)
Let’s first consider what Diante’s testimony would
have been. It is undisputed that Diante was in the
room when Jaquari died and that his account was
entirely exculpatory to Harris. He would have testified
that he saw Jaquari wrap the elastic band around his
own neck, that his mother was not in the room when
this happened, that Jaquari vomited in his “sleep,” and
that he saw a bubble form on Jaquari’s mouth. This was
all consistent with the physical evidence. Indeed, the
medical examiner had initially concluded that the cause
of death was self-asphyxiation. It was also consistent
with Sta-Von Dancy’s testimony that Jaquari had
wrapped the elastic band around his own neck on
previous occasions and that a mucus bubble had
formed when Dancy found Jaquari lying unconscious.
No other witness testified to what actually happened in
the moments before Jaquari died. As the trial court
itself acknowledged, Diante’s testimony was “critical”
to the defense. See S.A. 90-91. The testimony was
new, favorable, and not cumulative.
38 No. 12-1088
Diante’s testimony was also material. It is reasonably
likely it would have significantly altered the balance
of evidence to tip the scales in Harris’s favor. The analogy
to Brady helps show why. Imagine for a moment that
the prosecutor in Harris’s case had withheld from
the defense the fact that Diante had told police investiga-
tors that he saw Jaquari strangle himself with the
sheet’s elastic band. And imagine the prosecution’s
evidence is the same as it was at trial: no other eye-
witness contradicts Diante and says that Harris did
it, and no physical evidence implicates Harris in
Jaquari’s death. “If, for example, one of only two eye-
witnesses to a crime had told the prosecutor that
the defendant was definitely not its perpetrator and if
this statement was not disclosed to the defense, no
court would hesitate to reverse a conviction resting on
the testimony of the other eyewitness.” United States
v. Agurs, 427 U.S. 97, 113 n.21 (1976), quoting Victor
Bass, Comment, Brady v. Maryland and The Prosecutor’s
Duty to Disclose, 40 U. Chi. L. Rev. 112, 125 (1972).
A fortiori, if the prosecution failed to disclose the
existence of the case’s only eyewitness, whose testimony
is unique, exculpatory, and uncontradicted, the suppres-
sion would clearly be material. In such a case, the
Brady violation would be obvious. Cf. Smith v. Cain, 132
S. Ct. 627, 630-31 (2012) (finding Brady violation in pros-
ecution’s failure to disclose police notes that im-
peached only eyewitness).
Smith shows that impeachment of the inculpatory
testimony of the only eyewitness is material to an
accused’s defense. It follows that an undisclosed exculpa-
No. 12-1088 39
tory statement of the only eyewitness is certainly
material as well. Cf. Kyles v. Whitley, 514 U.S. 419, 429
(1995) (holding that State’s suppression of evidence that
would have enabled impeachment of the government’s
best witness violated Brady where the “heart of the
State’s case was eyewitness testimony”). As the
Supreme Court has made clear, “the materiality inquiry
is not just a matter of determining whether, after dis-
counting the inculpatory evidence in light of the undis-
closed evidence, the remaining evidence is sufficient
to support the jury’s conclusions.” Strickler v. Greene,
527 U.S. 263, 290 (1999), citing Kyles, 514 U.S. at 434-35.
Rather, the question is whether the “favorable evidence . . .
‘could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the ver-
dict.’ ” Cone, 556 U.S. at 470, quoting Kyles, 514 U.S. at
435. Had the prosecution in this case withheld Diante’s
statements to authorities that Jaquari had asphyxiated
himself, it would require reversal of Harris’s conviction
under Brady.
Diante’s testimony is also material under the Compul-
sory Process Clause, for the same standard applies.
The trial court’s disqualification of Diante deprived
Harris of direct evidence from the sole eyewitness. This
evidence was central to her theory of the case — that
Jaquari’s death was a tragic accident. No other witness
replicated Diante’s testimony. And no other witness
contradicted Diante’s account at trial; only the medical
examiner supported the prosecution’s theory that the
Jaquari’s death was even a homicide, and Dr. Denton
admitted that this was a revised opinion. Diante’s testi-
mony was at least as valuable to Harris’s defense as
40 No. 12-1088
were the undisclosed statements from the State’s eye-
witness in Smith v. Cain, and it was just as likely to
cast “the whole case in such a different light as to under-
mine confidence in the verdict.” Cone, 556 U.S. at 470,
quoting Kyles, 514 U.S. at 435.
In its harmless error analysis of the state evidentiary
issue, the Illinois Appellate Court wrote that “the pro-
posed testimony of Diante was [not] likely to have
[had] any significant impact upon the strength of the
State’s case” because of the “inherent weakness in the
Diante proffer.” Harris, 904 N.E.2d at 1094. The only
value to Diante’s testimony, the court found, was the
“observation of Jaquari wrapping an elastic band around
his neck.” Id. But the court saw this testimony as not
particularly important because “jurors had learned
from other witnesses that Jaquari had done such
things before.” Id. And the force of Diante’s account
would have been “negated or otherwise diminished
by Diante’s admission to Ms. Wilson,” who interviewed
him two days after the death, “that ‘he was asleep
when his brother got hurt.’ ” Id. at 1095. (Diante also
told Ale Levy, who interviewed him the day before
Wilson, that he was “asleep when Jaquari died.”)
We respectfully find this analysis to lack merit. Diante’s
testimony that he saw his brother wrapping the very
instrument of death around his neck just before he died
is far more relevant than Dancy’s testimony that Jaquari
had wrapped the band around his neck on some
previous occasions. Evidence is cumulative when it
“goes to prove what has already been established by
No. 12-1088 41
other evidence.” Mosley v. Atchison, 689 F.3d 838, 848
(7th Cir. 2012), quoting Smith v. Sec’y of New Mexico
Dep’t of Corrections, 50 F.3d 801, 829 (10th Cir. 1995); see
also Arizona v. Fulminante, 499 U.S. 279, 299 (1991). None
of the other defense witnesses came close to Diante in
terms of their exculpatory value. Diante’s testimony
would not have been cumulative.
Nor does Diante’s “admission” to Wilson that he
was asleep when Jaquari died significantly reduce the
probative force of his testimony. At most, it suggests
that Diante, like many children, did not fully compre-
hend the concept of death and that, heartbreak-
ingly, he may well have watched his brother die with-
out realizing it. See Mark W. Speece & Sandor B. Brent,
Children’s Understandings of Death: A Review of Three Compo-
nents of a Death Concept, 55 Child. Dev. 1671, 1679 (1984)
(studies show that children acquire some understanding
of conceptual components of death between ages five
and seven, with “wide range of ages of acquisition”
observed). Diante believed Jaquari fell “asleep” with the
mucus bubble, and only later was he informed of
Jaquari’s death. Given Diante’s age, a reasonable jury
would understand perfectly well what was going on
here. At worst, Diante’s “admission” to being asleep
created a superficial tension with his earlier (and unam-
biguous) report that he saw Jaquari wrap the elastic
around his own neck and that his mother was not pres-
ent. At trial, the prosecution could certainly have explored
that tension and the jury may have considered it in evalu-
ating his testimony. But the idea that this would have
“negated” the rest of his testimony is groundless. By
42 No. 12-1088
excluding Diante’s testimony altogether, the trial court
denied Harris the opportunity to present the strongest
evidence of her innocence and impeded the jury in its
search for truth. The appellate court minimized the sig-
nificance of this exclusion by pointing to Diante’s ambigu-
ous “admission” and seizing on the most favorable in-
terpretation to the prosecution. That is not how harmless
error review works, and it is not how our materiality
analysis proceeds under the Compulsory Process
Clause. That inquiry asks whether the exclusion of the
evidence had a reasonable probability of affecting the
outcome of trial, and the disqualification of Diante did.
The State argues also that Diante’s testimony, even
if credited, would not have made a difference because
the evidence against Harris was “overwhelming.” Exculpa-
tory evidence may be inconsequential to the outcome of
the trial “if the State’s other evidence is strong enough
to sustain confidence in the verdict.” Smith, 132 S. Ct. at
630, citing Agurs, 427 U.S. at 112-13. But that is certainly
not this case. The prosecution presented no physical
evidence that linked Harris to Jaquari’s death. The
medical examiner initially concluded that Jaquari’s
death was a “tragic accident.” The testimony of Dancy,
the only person present at the apartment aside from
the accused and the two children, supported Harris’s
account.
The prosecution’s case rested entirely on Harris’s video-
taped confession. To be sure, a “voluntary confession”
is “highly probative evidence.” Oregon v. Elstad, 470 U.S.
298, 312 (1985); see also Fulminante, 499 U.S. at 296 (“A
No. 12-1088 43
confession is like no other evidence.”). But a confession is
not incontrovertible evidence of guilt. See Crane v. Ken-
tucky, 476 U.S. 683, 689 (1986).8 Nor does a confession
guarantee a guilty verdict.9 Not all confessions are
equally probative. See Crane, 476 U.S. at 691 (“evidence
about the manner in which a confession was obtained
is often highly relevant to its reliability and credibility”);
Smith v. United States, 348 U.S. 147, 153 (1954)
(“[T]hough a statement may not be ‘involuntary’ . . . , still
its reliability may be suspect if it is extracted from
one who is under the pressure of a police investiga-
tion — whose words may reflect the strain and confu-
sion attending his predicament rather than a clear reflec-
tion of his past.”). Simply because a confession is in
evidence does not make every violation of the accused’s
8
See also Innocence Project, False Confessions & Recording of
Custodial Interrogations, http://www.innocenceproject.org/
C o n t e n t / F a l s e _ C o n f e s s io n s _ _ R e c o r d i n g _ O f _ C u s t o d i a l _
Interrogations.php (last visited Oct. 12, 2012) (“Over 25 percent
of the more than 290 wrongful convictions overturned by
DNA evidence in the U.S. have involved some form of a
false confession.”).
9
See, e.g., Ben-Yisrayl v. Davis, 245 F. Supp. 2d 960, 961 (N.D.
Ind. 2002) (“Peterson was tried twice in Lake County for three
of the murders and was acquitted in those two trials,
despite his confession.”); Johnson v. Village of Riverdale, 192
F. Supp. 2d 874, 875 (N.D. Ill. 2002) (“Johnson — even though
innocent — confessed falsely to the murder. . . . Despite the
bogus ‘confession,’ Johnson was acquitted of all charges . . . .”).
44 No. 12-1088
constitutional rights ipso facto a harmless error.1 0 Con-
versely, even a coerced confession may be harmless when
the other evidence of guilt is “overwhelming,” Fulminante,
499 U.S. at 294-95 (White, J., dissenting), although that
situation is rare in the absence of a separate and
voluntary admission by the defendant.1 1
Here, we do not ask whether Diante’s testimony
would have overwhelmed the probative value of Harris’s
videotaped confession, nor even whether the jury
would more probably than not have credited Diante’s
eyewitness account over the confession. An appellate
court does not engage in such apples-to-oranges eviden-
tiary comparisons. Our task is simply to ask whether,
if Diante had testified, there is a reasonable probability
the jury would have returned a different verdict.
We are confident that the answer is yes. The videotaped
confession was powerful evidence, but the jury had
reasons to question its reliability, too — reasons in line
with leading research on false confessions. The jury
knew the confession was the product of interrogation
10
See, e.g., Brown v. Dugger, 831 F.2d 1547, 1554-55 (11th Cir.
1987) (granting writ; violation of Confrontation Clause and
prosecutorial comment on defendant’s silence were not
harmless despite confession).
11
See, e.g., United States v. Thompson, 286 F.3d 950, 962 (7th Cir.
2002) (finding harmless error where “the government presented
overwhelming evidence of the defendants’ guilt,” and where
“to the extent the [inculpatory] statements were important,
they were cumulative”).
No. 12-1088 45
stretching over 27 hours at the police station. Cf. Saul M.
Kassin et al., Police-Induced Confessions: Risk Factors and
Recommendations, 34 L. & Hum. Behav. 3, 16 (2010) (noting
that “false confessions tend to occur after long periods
of time” and “sleep deprivation is historically one of
the most potent methods used to . . . extract confessions”).
The jury knew Harris did not have an attorney
present during this questioning and that, as a mother
who had just lost her son, she was under stress and
stricken with grief. Cf. Gisli H. Gudjonsson et al.,
Custodial Interrogation, False Confession and Individual
Differences: A National Study Among Icelandic Youth, 41
Personality & Individual Differences 49, 56 (2006)
(finding that depressed mood is linked to a susceptibility
to provide false confession to police). The jury knew
that Harris’s initial, unwarned confession was incon-
sistent with the physical evidence — she said she had
used the telephone cord. Only in later confessions (and
after many more hours of interrogation) did she correct
this curious discrepancy. See Brandon L. Garrett, The
Substance of False Confessions, 62 Stan. L. Rev. 1051,
1087 (2010) (“The vast majority of these exonerees
made statements in their interrogations that were con-
tradicted by crime scene evidence, victim accounts, or
other evidence known to police during their investiga-
tion.”).12 The jury also heard Harris testify that she
12
See generally Richard A. Leo, False Confessions: Causes,
Consequences, and Implications, 37 J. Am. Acad. Psychiatry & L.
332, 337 (2009) (“Interrogators help create the false confession
(continued...)
46 No. 12-1088
had spent a sleepless night handcuffed in the inter-
rogation room and that the police had threatened her,
pushed her, called her names, and deprived her of food,
water, and access to the bathroom, though she had
said otherwise in the recorded confession.
These warning signals were not enough to overcome
the videotaped confession at trial. But they might well
have been enough if the jury had considered them
along with Diante’s testimony, which would have
changed the entire tenor of the defense case. The theory
of accidental death would have been buttressed by
an actual eyewitness — the only person, according to
the defense, who was present when Jaquari died. Such
testimony “could reasonably be taken to put the whole
case in such a different light as to undermine confidence
in the verdict.” Cone, 556 U.S. at 470, quoting Kyles, 514
U.S. at 435. In this light, the circumstances of Harris’s
interrogation and the possibility of a false confession
(...continued)
by pressuring the suspect to accept a particular account and
by suggesting facts of the crime to him, thereby contaminating
the suspect’s postadmission narrative. . . . If the entire inter-
rogation is captured on audio or video recording, then it may
be possible to trace, step by step, how and when the inter-
rogator implied or suggested the correct answers for the
suspect to incorporate into his postadmission narrative.”);
accord, Steven A. Drizin & Beth A. Colgan, Let the Cameras
Roll: Mandatory Videotaping of Interrogations Is the Solution to
Illinois’ Problem of False Confessions, 32 Loy. U. Chi. L.J.
337, 339-41 (2001).
No. 12-1088 47
may well have given the jury greater pause. In sum,
Diante’s testimony was significant enough to be rea-
sonably likely to have changed the outcome of the trial.
Diante’s testimony would have been material and favor-
able to Harris’s defense.
2. Arbitrary or Disproportionate
The second part of the constitutional question is
whether the disqualification of Diante as a witness was
arbitrary or disproportionate to the evidentiary interests
advanced by the exclusion. The Supreme Court has
had only limited occasions to deal in detail with the
arbitrary or disproportionate prong of Compulsory
Process Clause analysis. One pattern that has emerged
is the “parity” principle: a state rule that restricts the
presentation of testimony for the defense but not
the prosecution will generally be deemed arbitrary. See
Akhil Reed Amar, Sixth Amendment First Principles, 84
Geo. L. J. 641, 699 (1996). As Professor Amar noted, “the
Court has repeatedly struck down asymmetric wit-
ness rules, and noted the asymmetry.” Id. at 700, citing
Pennsylvania v. Ritchie, 480 U.S. 39, 57 & n.14 (1987) (dis-
tinguishing between symmetric and asymmetric
privileges in due process analysis); Green v. Georgia, 442
U.S. 95, 97 (1979) (invalidating, on due process grounds,
exclusion of hearsay statement that defendant sought
to introduce where government introduced same state-
ment in another criminal proceeding); Cool v. United
States, 409 U.S. 100, 103 n.4 (1974) (rejecting as “funda-
mentally unfair” an instruction telling jury it could
48 No. 12-1088
convict solely on basis of accomplice testimony but not
telling jury it could acquit solely on this basis, where
defendant put accomplice on the stand); Chambers v.
Mississippi, 410 U.S. 284, 295-98 (1973) (invalidating,
under Due Process Clause, verdict where defendant was
barred from impeaching his own witness while govern-
ment was free to impeach that witness); Webb v. Texas,
409 U.S. 95, 96, 98 (1972) (per curiam) (trial judge intimi-
dated sole witness for defense but not prosecution wit-
nesses); Washington v. Texas, 388 U.S. 14, 22 (1967) (accom-
plices were allowed to testify for government but not
for defendants); see also id. at 24-25 (Harlan, J., con-
curring in the judgment) (stressing this fact).
At first glance, the trial court’s disqualification of
Diante looks like an asymmetric application of Illinois’s
witness competency statute. Under the statute, all wit-
nesses are to be presumed competent, and the party
opposing competency has the burden to prove that
either of the two prongs of the statute applies. In the
usual case involving child witnesses, it is the prosecu-
tion offering the testimony, often from a victim of
sexual abuse. In such cases the defense bears the burden
of proof, and Illinois courts have often allowed very
young children to testify.1 3 Here, however, where the
13
See, e.g., People v. Mulvey, 853 N.E.2d 68, 70 (Ill. App. 2006)
(five-year-old with mental retardation found competent to
testify for prosecution); People v. Sutherland, 743 N.E.2d 1007,
1013-14 (Ill. App. 2000) (six-year-old competent to testify for
prosecution); People v. DeWeese, 698 N.E.2d 554, 559 (Ill. App.
(continued...)
No. 12-1088 49
defense offered the child witness’s testimony, the trial
court placed the burden on Harris to establish that
Diante was competent. If this procedural decision
reflected an actual rule in Illinois, it would certainly
violate the Compulsory Process Clause.
Of course, that is not the rule in Illinois. The trial judge
did not say that it was Harris’s burden to prove compe-
tency because she was the defendant; he simply forgot
about the presumption of competency in general. This
case therefore does not involve a formally asymmetric
evidentiary rule but rather the potentially arbitrary or
disproportionate application of a facially neutral rule.
To deal with that issue, precedents from the Supreme
Court, this court, and other circuits teach that we
should apply a balancing test, weighing the value of the
excluded evidence to the criminal defendant against
the state’s legitimate interests in the criminal trial
(...continued)
1998) (same); People v. Smith, 604 N.E.2d 858, 871-72 (Ill. App.
1992) (four-year-old competent to testify for prosecution);
People v. Mitchell, 576 N.E.2d 78, 83-84 (Ill. App. 1991) (same);
People v. Hoke, 571 N.E.2d 1143, 1148 (Ill. App. 1991) (two six-
year-olds competent to testify for prosecution); In re A.M.C. III,
500 N.E.2d 104, 106-07 (Ill. App. 1986) (five-year-old competent
to testify for prosecution); People v. Epps, 493 N.E.2d 378, 380
(Ill. App. 1986) (six-year-old competent to testify for prosecu-
tion); In Interest of E.S., 495 N.E.2d 1334, 1335-36 (Ill. App.
1986) (five-year-old competent to testify for prosecution);
People v. McNichols, 487 N.E.2d 1252, 1255-56 (Ill. App.
1986) (same).
50 No. 12-1088
process that are implicated by the exclusion. See
Chambers, 410 U.S. at 295; see also Holmes v. South
Carolina, 547 U.S. 319, 326-27 (2006) (“While the Con-
stitution thus prohibits the exclusion of defense
evidence under rules that serve no legitimate purpose
or that are disproportionate to the ends that they are
asserted to promote . . . the Constitution permits judges
‘to exclude evidence that is repetitive . . . , only
marginally relevant or poses an undue risk of harass-
ment, prejudice, [or] confusion of the issues.’ ”) (internal
citations and some internal quotation marks omitted),
quoting Crane v. Kentucky, 476 U.S. 683, 689-90 (1986). In
Crane, for example, the Supreme Court addressed the
state trial court’s ruling that the accused could not
testify about the coercive circumstances of his con-
fession because it would have amounted to a relitigation
of voluntariness, an issue the court had already decided
in the prosecution’s favor. 476 U.S. at 685-87. The
Court held that this limit on the defendant’s testimony
violated his right “to present a complete defense.” Id. at
690, quoting California v. Trombetta, 467 U.S. 479, 485 (1984).
While acknowledging the power of state trial courts
“to exclude evidence through the application of eviden-
tiary rules that themselves serve the interests of
fairness and reliability,” id., such interests could
not justify the exclusion of the defendant’s testimony
about the circumstances under which the police
secured his confession. “In the absence of any valid
state justification, exclusion of this kind of exculpatory
evidence deprives a defendant of the basic right to”
present a complete defense. Id.No. 12-1088 51
The Crane Court reached its conclusion based on two
considerations: the importance of the evidence to the
defendant, and the lack of a legitimate state interest in
excluding the testimony. The case indicates that to deter-
mine whether a particular evidentiary exclusion is arbi-
trary or disproportionate to the interests served, the
proper approach is to weigh the defendant’s interest
in the evidence against the state’s legitimate interests in
promoting “fairness and reliability” in criminal trials. See
id.; see also Taylor v. Illinois, 484 U.S. 400, 416-18 (1988)
(using a balancing approach to determine whether ex-
clusion of evidence as discovery sanction violated
criminal defendant’s compulsory process right); Green v.
Georgia, 442 U.S. 95, 97 (1979) (per curiam) (holding
that exclusion of testimony that mitigated defendant’s
role in crime was violation of due process “[r]egardless
of whether the proffered testimony comes within
Georgia’s hearsay rule” because it “was highly relevant
to a critical issue in the punishment phase of the trial,
and substantial reasons existed to assume its reliability”)
(internal citations omitted).1 4
14
Our own precedents also support a balancing approach to
“arbitrary or disproportionate” analysis under the Compulsory
Process Clause. See, e.g., Stephens v. Miller, 13 F.3d 998, 1002
(7th Cir. 1994) (en banc) (“A criminal defendant’s right to
testify, however, is not unlimited and may bow to accommodate
other legitimate interests in the criminal trial process. . . .
Restrictions imposed by rape shield statutes, especially as they
relate to a criminal defendant’s right to testify, may not, how-
(continued...)
52 No. 12-1088
As we have explained, Diante’s testimony in this
case was critical and would have been new, excul-
patory, non-cumulative, and uncontradicted. As in
Crane, Harris’s (disavowed) confession made Diante’s
testimony “all but indispensable to any chance of
[Harris’s defense] succeeding.” See 476 U.S. at 691. Against
Harris’s substantial interest in this testimony, we must
weigh the legitimate state interests in safeguarding the
trial process against evidence that is “ ‘repetitive . . . ,
only marginally relevant’ or poses an undue risk of ‘har-
assment, prejudice, [or] confusion of the issues.’ ” Id.(...continued)
ever, be arbitrary or disproportionate to the purposes they are
designed to serve. Rather, the state is required to evaluate
whether the interests served by the rule justify the limitation
imposed on the criminal defendant’s right to testify.”) (citations
omitted); id. at 1005 (Flaum, J., concurring) (“Whether a state
interest can justify a limitation upon a defendant’s right to
present relevant evidence depends upon the relative weights
of the interest and the evidence.”); id. at 1020 (Ripple, J., dis-
senting) (“The more critical the excluded evidence to the
defense of the accused, the more important must be the
asserted state interest.”); accord Cunningham v. Peters, 941 F.2d
535, 538-39 (7th Cir. 1991); Johnson v. Chrans, 844 F.2d 482, 484-85
(7th Cir. 1988). Other circuits are in accord. See, e.g., Ellis v.
Mullin, 326 F.3d 1122, 1128-30 (10th Cir. 2002); Wood v. Alaska,
957 F.2d 1544, 1551-54 (9th Cir. 1992). A detailed scholarly
treatment of the Compulsory Process Clause also endorses
a balancing test. See Robert N. Clinton, The Right to Present
a Defense: An Emergent Constitutional Guarantee in Criminal
Trials, 9 Ind. L. Rev. 711, 797 (1976).
No. 12-1088 53
at 689-90, quoting Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986).
Of course, competency requirements serve legitimate
and important state interests. But it is not enough that
Illinois’s competency rule serves legitimate state
interests in general. The Compulsory Process Clause
demands more particularized scrutiny of the application
of the rule in each case. In Chambers, 410 U.S. 284(1973), the defendant was on trial for murdering a police
officer and offered the testimony of three witnesses
who heard another man admit to being the real killer.
The trial court excluded the evidence on the ground
that it was hearsay. (Mississippi did not at that time
recognize a hearsay exception for an admission against
penal interest.) The Supreme Court reversed Chambers’s
conviction, holding that the state courts unconstitu-
tionally restricted Chambers’s right to present witnesses
in his own defense. The Court acknowledged the legiti-
macy of the hearsay rule as an important rule of
evidence “designed to assure both fairness and reliability
in the ascertainment of guilt and innocence.” Id. at 302.
But “[i]n these circumstances, where constitutional
rights directly affecting the ascertainment of guilt
are implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.” Id.Chambers shows that “if the defendant tenders vital
evidence the judge cannot refuse to admit it without
giving a better reason [than] that it is hearsay.” Rivera v.
Director, Dep’t of Corrections, 915 F.2d 280, 281-82 (7th
Cir. 1990). In Rivera, the defendant and his co-con-
54 No. 12-1088
spirator were tried separately. The co-conspirator had
confessed and his confession contained statements
that were exculpatory to Rivera. The confession was
excluded as hearsay and Rivera was convicted. Ap-
plying Chambers, we granted habeas relief: “the exclusion
of [the co-conspirator’s] confession from Rivera’s trial
was arbitrary, because the state has offered no
plausible reason for believing that the exculpatory
portion of the confession was so unreliable as to justify
denying Rivera the right to introduce the only evidence
of his innocence that he had.” Id. at 283.
Witness competency laws advance the same truth-
seeking interests as hearsay rules. They protect the integ-
rity of the adversary process by excluding categorically
testimony that is likely to be unreliable. See, e.g.,
George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J.
575, 624-25 (1997) (“In effect, this panoply of competency
rules preempted the jury’s lie-detecting function by
declaring certain witnesses to be likely liars as a matter
of law.”). When competency rules are applied reasonably,
they may limit the right of an accused to call certain
witnesses, even when they may be important to his de-
fense. See Washington v. Texas, 388 U.S. 14, 23 n.21 (1967)
(“Nor do we deal in this case with nonarbitrary state
rules that disqualify as witnesses persons who, because
of mental infirmity or infancy, are incapable of observing
events or testifying about them.”). But the Compulsory
Process Clause does not countenance evidentiary ex-
clusions that sweep far more broadly than the interest
in the integrity of trial would justify.
No. 12-1088 55
Under the Compulsory Process Clause balancing test,
where the challenged witness is critical to the defense’s
case, the state must have some “plausible reason for
believing that” the witness would be “so unreliable as to
justify denying [the defendant] the right to introduce
the only evidence of his innocence that he had.” Rivera,
915 F.2d at 283; see also Peter Westen, The Compulsory
Process Clause, 73 Mich. L. Rev. 71, 135 (1974) (“It would
be unconstitutional, for example, to disqualify a child
from testifying for the defense on the ground that he
lacked a perfect memory, or that he lacked the ability
to express himself as well as an English professor. To
disqualify the child under such a standard would be
unconstitutional for the same reason that it was
improper to disqualify the accomplice in Washington:
It prevents the jury from hearing a material witness for
the defense whose testimony may well be reliable.”).
In this case, Diante’s competency hearing did not
reveal that he was so unreliable as a witness as to justify
depriving the defense of his uniquely exculpatory testi-
mony. Diante indicated that he knew the difference be-
tween the truth and a lie and that one may be rewarded
for telling the truth and punished for telling a lie. Illinois
courts have repeatedly found that sufficient under
Illinois law to show that a child witness understands
the duty to tell the truth.1 5 Diante also provided a fairly
15
See, e.g., People v. Williams, 891 N.E.2d 904, 932 (Ill. App. 2008)
(nine-year-old found competent to testify even though he
initially “responded in the negative to the State’s question
(continued...)
56 No. 12-1088
coherent and highly relevant account of what had hap-
pened on the day of Jaquari’s death: his brother
wrapped the cord around his own neck, his parents
had not been in the room, and Jaquari went to “sleep”
when a “bubble” formed on his mouth. This was con-
sistent with the physical evidence and with the
account he gave to investigators in the days immediately
following the death. Nothing suggested that Diante
had fabricated the account or been coached. Although a
few times it took additional questioning to draw out
Diante’s precise meaning, he was clearly not so incom-
prehensible as to have made his entire testimony inher-
ently unreliable.
15
(...continued)
of whether he knew the difference between the truth and a
lie,” because he thereafter “displayed a threshold grasp of
the difference between telling the truth and lying.”); People
v. Dempsey, 610 N.E.2d 208, 217-18 (Ill. App. 1993)
(nine-year-old sexual abuse victim found competent to testify
even though, when first questioned whether he knew the
difference between a truth and a lie, he indicated that he did
not; court found that boy’s statement that if he told a lie he
would “go to the devil” demonstrated his understanding that
it was sinful and therefore wrong to tell a lie); see also Suther-
land, 743 N.E.2d at 1013 (six-year-old shooting victim was
found competent to testify even though she stated that
“telling the truth made people ‘happy’ and lying made people
‘mad,’ ” where she demonstrated having knowledge of the
difference between telling the truth and lying by saying it
was wrong to lie and that if she lied she would get a “ ‘whop-
ping’ ”).
No. 12-1088 57
Diante was by no means a perfect witness. He said
that he believed Santa Claus and Spiderman were real
and that he had seen Jaquari “in heaven.” He also told
investigators Levy and Wilson that he had been
asleep when Jaquari got hurt, which was superficially
inconsistent with the defense’s claim that Diante
witnessed Jaquari’s death. (Nobody asked him to
explain the difference.) And he did not respond to the
court’s satisfaction to two of its questions: first, whether
he could “remember anything else that happened that
day” (he said no); and second, whether he had
“spoken before with any of the people who are here
today before you came to court.” (Diante again said
no, even though he had previously spoken to the pros-
ecutor).
But none of these responses were explored by the
court or counsel with even minimal follow-up. Had
there been any, the court should have gained the same
insights that Dr. Galatzer-Levy did: that Diante believed
Santa and Spiderman were real to the extent they
were not cartoons; that by “heaven,” Jaquari probably
meant “church”; that he did not realize that he witnessed
Jaquari die because he did not understand death; and
that he remembered many details from the day of
Jaquari’s death. Moreover, even if like many six-year-
olds Diante believed that these mythical characters
were real, such imaginings were not commingled with
his memory of the day of Jaquari’s death and would not
58 No. 12-1088
have hindered his ability to tell what he saw.1 6
The bigger issue, and the trial court’s more glaring
failure at the competency hearing, was its unrealistic
expectations for a six-year-old witness. As Illinois courts
have emphasized, “[i]t is not incumbent upon a child to
give perfect answers to questions asked during the compe-
tency determination or at trial to be deemed a
competent witness.” Williams, 891 N.E.2d at 932, quoting
Sutherland, 743 N.E.2d at 1013. A child’s belief in Santa
Claus or Spiderman does not make the child’s testimony
about his real-life experiences unreliable.1 7 Nor does
16
Even if Diante had truly believed he saw Jaquari “in heaven”
(which, as we have noted, is an improbable interpretation
of his testimony), having a spiritual vision is not a basis to
disqualify a person as incompetent to testify. See Rodney
Stark, What Americans Really Believe 48-60 (2008) (finding that
55% of Americans surveyed believed they have been
protected from harm by a guardian angel and 45% believed
they have had at least two mystical or religious experiences
such as hearing the voice of God).
17
Courts commonly find children competent to testify despite
their expressed beliefs in Santa Claus and other fictitious
characters. See, e.g., Hurt v. Commonwealth, No. 2002-SC-0209-
MR, 2003 WL 22417232, at *4 (Ky. Oct. 23, 2003) (six-year-old
believed in Santa Claus); State v. Anderson, 798 N.E.2d 1155, 1167
(Ohio App. 2003) (recognizing that a four-year-old child’s
claim that she believed in Santa Claus and that she saw
monsters did not negate her competency to testify because
very young children “generally believe in such things as
(continued...)
No. 12-1088 59
Diante’s negative response to the court’s general inquiry
if he remembered anything else from the day. Such a
broad, open-ended question in a hearing or deposition
often confuses adults who have already been testifying
about what they remember. It was unlikely to elicit
a detailed, substantive account of the day’s events from
a six-year-old, especially when posed by a stranger in
a black robe. Likewise, the trial court’s question, “Have
(...continued)
Santa Claus and the bogeyman and frequently play
make-believe”); Humphrey v. State, 1999 WL 46541, at *3 (Alaska
App. Feb. 3, 1999) (six-year-old believed in Santa Claus and
the tooth fairy); State v. Miller, 2003 WL 22077677, at *5 (Wash.
App. Sept. 9, 2003) (“Mr. Miller first contends [six-year-old]
V.S. was not competent to testify because, when asked
whether dinosaurs were real or cartoon, V.S. said that they
were real. It is difficult to see how this response demonstrates
any mental incapacity when fossil evidence establishes the
previous existence of dinosaurs.”); Carmona v. State,
No. 05-96-01789-CR, 05-96-01790-CR, 1998 WL 304700, *3-4 (Tex.
App. 1998) (five-year-old who believed his stuffed animal
was a person and that cartoons were real). We have found
only one case in which a court found a child was incompetent
in part because she could not say that cartoon characters
were make-believe. See B.B. v. Commonwealth, 226 S.W.3d 47(Ky. 2007). In that case, the child was four at the time of the
hearing, she “had no concept of a lie, nor the consequences
of lying,” and “when asked directly if she understood ‘what
telling the truth means’ or ‘what being honest is and telling
exactly what happens’ means, C.Y. shook her head ‘no’.” Id.
at 49.
60 No. 12-1088
you spoken before with any of the people who are
here today before you came to court?” was both com-
pound and ambiguous enough that many adults might
have trouble answering it. Was the judge asking
whether Diante had ever spoken before with anyone
present at court that day? Or whether he had spoken
that day with anyone present before coming to court?
And how many people were in the courtroom? The
answer says nothing probative about Diante’s reliability
as a witness. There was no follow-up to make sure he
even understood the question.
Even if some other aspects of Diante’s testimony
might reasonably have caused the finder-of-fact to
question the reliability of his account, sorting out
truthful from untruthful testimony is the essence of the
jury’s function in our criminal justice system. See
Scheffer, 523 U.S. at 313 (“A fundamental premise of our
criminal trial system is that the jury is the lie detector.
Determining the weight and credibility of witness testi-
mony, therefore, has long been held to be the ‘part of
every case [that] belongs to the jury, who are presumed
to be fitted for it by their natural intelligence and their
practical knowledge of men and the ways of men.’ ”)
(internal citation and some quotation marks omitted),
quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891).
Had Diante testified, the jury would have heard his
account that he saw Jaquari wrap the cord around his
own neck — the most valuable piece of evidence for
Harris’s defense. His testimony would also have been
subjected to cross-examination, and the able prosecutors
in this case no doubt would have tried to impeach him
No. 12-1088 61
on some of the same lines of questioning they raised at
the competency hearing. That is how the adversary
process is designed to work.
By finding Diante to be an incompetent witness, the
trial court short-circuited that process and excluded
Harris’s best evidence of her innocence. It reached that
conclusion in part by erroneously placing the burden of
proof on the defense, and in effect presuming that
Diante was incompetent. It also relied on the facts
that Diante expressed age-appropriate beliefs in
mythical or fictional characters, said he saw his brother
“in heaven,” and, in his response to a broad and
confusing question from the bench, did not admit to
having spoken with the prosecutor at some point
before the hearing. These considerations did not
reliably indicate that Diante’s testimony at trial was
likely to be so unreliable as to justify eliminating it com-
pletely from Harris’s defense. The importance of this
evidence substantially outweighed the danger that it
would have injected inherently unreliable evidence
into the trial.
In so holding, we emphasize that we do not decide
whether the trial court’s incompetency determination
was erroneous as a matter of Illinois law. Obviously,
“habeas corpus relief does not lie for errors of state
law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citations
omitted), quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
The Illinois Appellate Court determined that the trial
court, despite its burden of proof error, did not abuse
its discretion in applying Illinois’s witness competency
statute, and we do not disturb that conclusion. As the
62 No. 12-1088
Supreme Court cautioned long ago, the determination
of competency “rests primarily with the trial judge, who
sees the proposed witness, notices his manner, his ap-
parent possession or lack of intelligence, and may resort
to any examination which will tend to disclose his
capacity and intelligence, as well as his understanding
of the obligations of an oath.” Wheeler v. United States,
159 U.S. 523, 524-25 (1895). Harris presented and we
have considered a different question: whether in this
case the damage done to Harris’s defense by dis-
qualifying Diante as a witness was disproportionate to
the state’s interest in guarding against the admission
of unreliable testimony. That question is a Sixth Amend-
ment question, and no state court addressed it. Ans-
wering it involves a familiar analytic tool of the law
of evidence — balancing the probative value of a witness’s
testimony against the risk of “confusing the issues” or
“misleading the jury.” See Fed. R. Evid. 403. But our
approach does not constitutionalize the law of evidence.
On the contrary, by requiring state courts to consider
the effect of an evidentiary exclusion on the right of
the accused to present exculpatory testimony, we
ensure that the rules of evidence will be applied in
accord with the demands of the federal Constitution.
That is a central function of the federal courts and of
the habeas corpus writ itself.
If the Compulsory Process Clause is to be more than
a “dead letter,” see Burr, 25 F. Cas. at 33, it demands
that courts recognize that the exclusion of defense
evidence can have constitutional consequences beyond
the rules of evidence. Here, state courts overlooked the
Sixth Amendment significance of Diante’s testimony. By
No. 12-1088 63
disqualifying Diante from taking the stand, the trial court
deprived Harris of evidence that was favorable and
material to her defense, and on the evidence before it, the
exclusion was “arbitrary or disproportionate” to the
interests served by the competency rule. The exclusion
violated Harris’s right to present a complete defense
under the Sixth and Fourteenth Amendments of the
U.S. Constitution.
IV. Ineffective Assistance of Counsel Claim
The Sixth Amendment also provides that the “accused
shall enjoy the right to . . . have the Assistance of
Counsel for his defense.” To demonstrate that the right
to counsel was violated by ineffective assistance, a
criminal defendant must meet the familiar two-prong
standard set forth in the leading case, Strickland v. Washing-
ton, 466 U.S. 668 (1984). First, she must show that her
“counsel’s performance was deficient” because it “fell
below an objective standard of reasonableness.” Id. at 687-
88. Second, she must show that “the deficient per-
formance prejudiced the defense,” which means that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Harris con-
tends that her trial counsel was ineffective cumula-
tively throughout trial and for three specific deficien-
cies: (1) his performance at Diante’s competency
hearing; (2) his withdrawal of a motion to quash
Harris’s arrest; and (3) his failure to call expert witnesses
on child asphyxiation and false confessions.
64 No. 12-1088
Under AEDPA, “the bar for establishing that a
state court’s application of the Strickland standard was
‘unreasonable’ is a high one, and only a clear error in
applying Strickland will support a writ of habeas corpus.”
Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009). “When
§ 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there
is any reasonable argument that counsel satisfied Strick-
land’s deferential standard.” Harrington v. Richter, 131 S. Ct.
770, 788 (2011). However, “if a state court does not
reach either the issue of performance or prejudice on the
merits, then federal review [of that prong] . . . is de novo.”
Sussman v. Jenkins, 636 F.3d 329, 350 (7th Cir. 2011) (some
internal quotation marks omitted), quoting Toliver v.
McCaughtry, 539 F.3d 766, 775 (7th Cir. 2008).
Because the Illinois Appellate Court did not reach
the Strickland performance prong, we consider that issue
de novo and conclude that defense counsel’s performance
at the crucial competency hearing was constitutionally
deficient. Applying AEDPA deference to the prejudice
prong, we conclude that the court unreasonably misap-
plied Strickland. If counsel had provided effective assis-
tance at the competency hearing, it is reasonably likely
that Diante would have been allowed to testify. His
testimony was pivotal to Harris’s case, and there is at
least a reasonable probability that it would have made
a difference in the outcome of the trial.1 8
18
Because we find that defense counsel’s performance at the
competency hearing did not meet the minimum standards
(continued...)
No. 12-1088 65
A. Performance Prong
To satisfy Strickland’s performance prong, the
defendant must identify “acts or omissions of counsel
that could not be the result of professional judgment.”
U.S. ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1015 (7th
Cir. 1988), citing Strickland, 466 U.S. at 690. “The question
is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not
whether it deviated from best practices or most
common custom.” Richter, 131 S. Ct. at 788, quoting
Strickland, 466 U.S. at 689. A reviewing court must seek
to “evaluate the conduct from counsel’s perspective at
the time.” Strickland, 466 U.S. at 689. We “must indulge
a strong presumption that counsel’s conduct falls
within a wide range of reasonable professional assis-
tance,” id., and “strategic choices made after thor-
ough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Id. at
690. The Illinois Appellate Court did not decide
whether defense counsel’s performance was deficient
under Strickland. See Harris, 904 N.E.2d at 1097-98. Our
review of Harris’s claim under the performance prong
is therefore de novo.
(...continued)
of professional competency imposed by the Sixth Amendment,
and that there was a reasonable probability that these
errors altered the outcome of Harris’s trial, we do not
address the other allegations of ineffectiveness.
66 No. 12-1088
We see three serious mistakes in trial counsel’s perfor-
mance at the competency hearing.1 9 First, and most
glaring, counsel did nothing to prepare Diante for his
testimony. Second, counsel failed to secure the presence
of Levy, the investigator for Child and Family Services
who interviewed Diante the day of Jaquari’s death.
Third, counsel failed to correct the trial court’s misplace-
ment of the burden of proof on the defense at the compe-
tency hearing.
1. Preparation
Counsel admitted to the trial court that he had seen
Diante on just one prior occasion (when he interviewed
Dancy), had only spoken with the child in court just
before the hearing, and that he “didn’t ask [Diante] any
questions” before he took the stand. Dkt. No. 1-17 at 93.
According to the trial court, on the day Diante testified,
defense counsel had yet to “determine whether they
even wanted to call the witness.” S.A. 56. These revela-
tions are disturbing. The defense theory was that
Jaquari’s death was accidental. Diante was the only
witness who could testify directly to that theory. The
substance of Diante’s testimony was not only exculpatory;
no other witness contradicted it, and no other witness
could replicate it. In terms of its strategic importance to
19
Both parties assume, and we agree, that the competency
hearing was a “critical stage” of the proceedings against
petitioner during which her right to counsel remained in
full force. See United States v. Wade, 388 U.S. 218, 224-25 (1967).
No. 12-1088 67
the defense, Diante’s competency hearing was the
whole defense.
Preparation is important with witnesses of any age,
but it is critical with child witnesses, who are often
nervous in unfamiliar settings and among strangers.2 0
20
See Nancy Walker Perry & Lawrence S. Wrightsman, The Child
Witness: Legal Issues and Dilemmas 252-55 (1991); William Wesley
Patton, Viewing Child Witnesses through a Child and Adolescent
Psychiatric Lens: How Attorneys’ Ethical Duties Exacerbate Chil-
dren’s Psychopathology, 16 Widener L. Rev. 369, 370 n.4 (2010),
citing Andrea N. Welder, Sexual Abuse Victimization and the
Child Witness in Canada: Legal, Ethical, and Professional Issues for
Psychologists, 41 Canadian Psychol. 160, 164-65 (2000); Myrna S.
Raeder, Enhancing the Legal Profession’s Response to Victims of
Child Abuse, 24 Crim. Just. 12, 43 (Spring 2009); Tom Harbinson,
When the Child “Freezes” in Court, Part One: Prevention, Reasonable
Efforts 2, Nat’l Dist. Attorneys Ass’n/Nat’l Ctr. for Prosecution of
Child Abuse (2005), available at http://www.mcaa-mn.org/
docs/2005/APRIReason — Part161005.pdf; Helen L. Westcott &
Graham M. Davies, Children’s Welfare in the Courtroom: Prepara-
tion and Protection of the Child Witness, 7 Child. & Soc’y 388, 389-
91 (1993). In his evaluation of Diante, Dr. Galatzer-Levy empha-
sized the importance of questioning children in a manner
consistent with their cognitive capacities, and he provided
some background on child development and interview tech-
niques. For example, “most children of Diante’s age cannot
answer an abstract question regarding the difference
between the truth and a lie” but can have a “complete functional
understanding of the concepts.” S.A. 137-38. Likewise, while
“[a]dults tend to conceptualize things that they themselves
(continued...)
68 No. 12-1088
Interviewing Diante in advance would have enabled
defense counsel to familiarize Diante with the types of
questions he would be asked, to anticipate the State’s
approach in challenging competency, and to develop a
rapport with an understandably nervous and reticent
child. In light of both the delicacy of child witnesses
in general and the importance of this witness’s testi-
mony to the defense in particular, trial counsel’s failure
even to speak with Diante about his testimony is inex-
plicable.
The Supreme Court has said that “the Strickland
test provides sufficient guidance for resolving virtually
all ineffective-assistance-of-counsel claims.” Williams v.
Taylor, 529 U.S. 362, 391 (2000). In Strickland itself, the
Supreme Court made clear that “counsel has a duty
to make reasonable investigations or to make a
reasonable decision that makes particular investiga-
tions unnecessary.” 466 U.S. at 691. A “particular
decision not to investigate must be directly assessed
for reasonableness in all the circumstances,” which
depend on the information the attorney had at his dis-
posal. Id. “For example, when the facts that support
a certain potential line of defense are generally known
to counsel because of what the defendant has said,
the need for further investigation may be considerably
20
(...continued)
witness as ‘real,’ referring to a highly abstract concept of truly
existing,” “[c]hildren of Diante’s age . . . typically do not
employ such abstractions in their thinking.” S.A. 139.
No. 12-1088 69
diminished or eliminated altogether.” Id. In this case,
however, Harris’s counsel clearly did not have all the
information needed to question Diante effectively at
his competency hearing. And what information counsel
did have — above all, the facts that Diante was young
and critical to the defense — would only have indicated
to a reasonably diligent defense attorney the need
for careful investigation and preparation.
Since Strickland, the Supreme Court has several times
found that an attorney’s failure to prepare or investigate
witnesses or evidence was deficient performance. See,
e.g., Porter v. McCollum, 130 S. Ct. 447, 452-53 (2009)
(per curiam); Rompilla v. Beard, 545 U.S. 374, 385 (2005);
Wiggins v. Smith, 539 U.S. 510, 523-25 (2003). Here, too,
counsel’s failure to interview Diante overlooked obvious
information — his age, importance as a witness, and the
statements he made to Levy and Wilson — that urgently
conveyed the need for more “thorough investigation.”
Porter, 130 S. Ct. at 452.
This court and other circuits have found that an at-
torney’s failure to interview prospective witnesses
can render his performance deficient under Strickland.
See, e.g., Davis v. Lambert, 388 F.3d 1052, 1063-64 (7th
Cir. 2004) (“As Davis relied exclusively on a theory of
self-defense at trial, his counsel’s failure to interview
Perry, the only other eye-witness to the altercation, is
inexplicable.”); Washington v. Smith, 219 F.3d 620, 632
(7th Cir. 2000) (“failure to try to ascertain what ex-
culpatory evidence ‘new’ witnesses might have [was a]
flagrant example[ ] of ineffective assistance”); Sowell
70 No. 12-1088
v. Anderson, 663 F.3d 783, 790 (6th Cir. 2011) (granting
habeas relief and holding that “[c]ounsel’s failure to
interview Sowell’s family was inconsistent with their
obligation to conduct a thorough sentencing-phase in-
vestigation”) (citations omitted); Anderson v. Johnson,
338 F.3d 382, 392 (5th Cir. 2003) (granting habeas relief
and holding that, due to “the fact that there were only
two adult eyewitnesses to the crime, it is evident that
‘a reasonable lawyer would have made some effort to
investigate the eyewitnesses’ testimony’ ”), quoting
Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994).
In Stanley v. Bartley, 465 F.3d 810 (7th Cir. 2006), defense
counsel had not interviewed any prospective witnesses
before trial. His “trial strategy . . . was to listen to the
witnesses’ direct testimony and cross-examine them
regarding any discrepancies between that testimony
and their pretrial statements that were harmful to his
client.” Id. at 812. The lawyer had “prepared for the trial
by reading the statements that prospective witnesses had
given the police” but “did not interview any of them.”
Id. Had he done so, it would have “enabled a damaging
cross-examination” of a witness who himself “may
have been the murderer” and allowed counsel to
impeach as unreliable another witness who testified that
the defendant had confessed to her. Id. We said that
the failure to interview witnesses “was a shocking derelic-
tion of professional duty.” Id. at 813.
In this case, too, trial counsel’s failure to conduct
a careful interview with Diante fell below the minimum
standards of professional reasonableness required
No. 12-1088 71
under Strickland. Any reasonably diligent attorney
would have understood the special challenges in ques-
tioning witnesses of Diante’s age, as well as the
critical importance of his testimony.
We recognize that, in preparing for the testimony of
child witnesses, attorneys should be especially careful to
avoid suggesting answers or otherwise coaching the
witness. See Maryland v. Craig, 497 U.S. 836, 868 (1990)
(Scalia, J., dissenting); John R. Christiansen, The Testimony
of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial
Interviews, 62 Wash. L. Rev. 705, 709-11 (1987). This does
not mean, however, that lawyers must give up pretrial
interviews altogether to avoid being accused of coaching
child witnesses. A variety of procedural safeguards
are available to ensure the integrity of children’s
testimony, such as having a child-witness examiner
conduct or observe the interview, avoiding the use of
leading questions, and of course videotaping the inter-
view. See Christiansen, supra, at 713-14. If the attorney
is concerned about being accused of coaching his
child witness, the solution is to take these precautionary
steps, not to forego preparation entirely.
Yet that is what Harris’s attorney did here, and not
because he made a tactical decision that investigative
efforts would be counter-productive. Cf. Bobby v. Van
Hook, 130 S. Ct. 13, 18-19 (2009) (counsel gathered sub-
stantial amount of information and then made
reasonable decision not to pursue additional sources).
Rather, at this important stage of trial, his unreadiness
was all. See Williams v. Lemmon, 557 F.3d 534, 541 (7th
72 No. 12-1088
Cir. 2009) (“[In Stanley, 465 F.3d 810 (7th Cir. 2006),] Stan-
ley’s lawyer did not prepare for trial; he just showed
up and winged it. That’s ineffective assistance, when
information in counsel’s possession suggested that
some potential witnesses had exculpatory information.”).
In fact, until just before Diante took the stand, counsel
had not even made up his mind whether he wanted
this pivotal witness to testify. Failing to interview
Diante was not based on “reasoned strategic judgment.”
See Wiggins, 539 U.S. at 526.
2. Investigator Levy
Second, trial counsel’s performance was deficient for
failing to secure the presence of Ale Levy, the Child
Advocacy Center investigator who had spoken with
Diante the day after his brother’s death. Counsel’s failure
to discover and present exculpatory evidence that is
reasonably available can constitute deficient perfor-
mance. See, e.g., Wiggins, 539 U.S. 523-29. And we have
found Strickland’s performance prong met by a defense
attorney’s “inexplicable” refusal to investigate and call
the only sober eyewitness to the altercation on which
the defendant’s murder conviction was based, given
“the obvious importance of this potential testimony to
[defendant’s] self-defense argument.” Davis v. Lambert,
388 F.3d 1052, 1064, 1063 (7th Cir. 2004). Here, Levy’s
testimony would have countered that of Karen Wilson,
another state investigator who interviewed Diante
and testified at the hearing that he had trouble distin-
guishing fantasy from reality. Levy would have demon-
No. 12-1088 73
strated that Diante’s testimony was consistent with
what he had told her (that Jaquari asphyxiated himself),
and described Diante’s satisfactory responses to her
preliminary “qualifier” questions that gauged his
memory and communication skills. Defense counsel
subpoenaed Levy but conceded he did “nothing” to
secure her actual presence.2 1
When Levy did not appear, counsel also did not
explain to the trial court how critical she was, except to
say that she had interviewed Diante. The trial court stated,
“All right. . . . Diante may have been interviewed by . . .
next-door neighbors or relatives or you. What I’m won-
dering is, what relevance is it to my determination at
this point in time as to the witness’s competency that
other people have talked to him at other points in
time?” Instead of explaining that Levy would show that
Diante’s account of Jaquari’s death had remained con-
sistent from day one, that he was capable of articulating
21
In addition, even if Diante had nevertheless been found
incompetent, his statements to Levy could have been admitted
through Levy. Although such testimony would other-
wise be hearsay, Illinois exempts statements made by a
declarant who is unavailable where the statement concerns the
history — explicitly including the “death”— of “another
person, if the declarant was related to the other by blood,
adoption, or marriage.” Ill. Evid. R. 804(b)(4)(B). “A child
witness is considered unavailable if the child is . . . declared
incompetent because she is incapable of expressing herself so
as to be understood concerning the matter.” People v. Learn,
919 N.E.2d 1042, 1049 (Ill. App. 2009).
74 No. 12-1088
that account coherently when questioned by someone
trained to question children, and that she would
counter the testimony of Wilson, counsel withdrew his
motion to call her and said he had nothing further. This
was another major oversight that counsel could have
avoided with modest efforts.
3. Incorrect Burden of Proof
Finally, defense counsel was deficient in not correcting
the trial court when it misallocated the burden of proof
during the competency hearing. The Supreme Court
determined in Kimmelman v. Morrison, 477 U.S. 365, 385
(1986), that Strickland’s performance prong was satis-
fied where counsel failed to file a suppression motion
due to his “startling ignorance” of discovery rules. When
an attorney takes or forgoes some action at trial due
to ignorance of the law, that mistake can amount to con-
stitutionally deficient performance. See, e.g., Wrinkles
v. Buss, 537 F.3d 804, 814-15 (7th Cir. 2008) (holding
that counsel’s ignorance of relevant law made per-
formance objectively deficient under Strickland); Barrow v.
Uchtman, 398 F.3d 597, 605 (7th Cir. 2005) (same); Dixon
v. Snyder, 266 F.3d 693, 703 (7th Cir. 2001) (same); see
also Medina v. Diguglielmo, 461 F.3d 417, 428-29 (3d Cir.
2006) (trial counsel’s failure to object to competency
of child witness, as required by Pennsylvania law, fell
below an objective standard of reasonableness).
In this case, the trial court explicitly placed the
burden of proof on Harris to establish that Diante was
No. 12-1088 75
competent to testify. Even the trial judge himself agreed
later that this was an error. There is no tactical explana-
tion for the failure to correct the judge’s mistake — except
that counsel too was unaware of Illinois law’s presump-
tion of competency. In the competency hearing,
counsel even restated and compounded the trial court’s
error by asserting “that we’ve met our burden.” Dkt. No.
1-17 at 100. By embracing without objection the
misplaced burden to prove Diante was a competent
witness, counsel made his job harder. A “reasonably
competent attorney patently is required to know the
state of the applicable law.” Medina, 461 F.3d at 428,
quoting Everett v. Beard, 290 F.3d 500, 509 (3d Cir. 2002),
abrogated on other grounds by Priester v. Vaughn, 382
F.3d 394 (3d Cir. 2004). In this regard, as well, counsel’s
performance at the competency hearing was deficient.
We conclude that the performance of Harris’s trial
counsel was unconstitutionally deficient in failing (1) to
interview Diante prior to his testimony; (2) to secure
the presence of Ale Levy; and (3) to correct the court’s
legal error in placing the burden on the defense. We
now turn to whether Harris was prejudiced by these
deficiencies.
B. Prejudice Prong
1. Legal Standard
To show the required prejudice, the defendant must
show “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
76 No. 12-1088
proceeding would have been different.” Strickland, 466
U.S. at 694. This does not mean that the defendant
must show that “counsel’s deficient conduct more
likely than not altered the outcome in the case.” Id. at
693. Rather, a “reasonable probability is a probability
sufficient to undermine confidence in the outcome,” id. at
694, which in turn means a “substantial, not just con-
ceivable” likelihood of a different result. Harrington
v. Richter, 131 S. Ct. 770, 792 (2011); see also Canaan v.
McBride, 395 F.3d 376, 386 (7th Cir. 2005) (“Even if the
odds that the defendant would have been acquitted had
he received effective representation appear to be less
than fifty percent, prejudice has been established so long
as the chances of acquittal are better than negligible.”),
quoting U.S. ex rel. Hampton v. Leibach, 347 F.3d 219, 246
(7th Cir. 2003). Making this probability determination
requires consideration of the “totality of the evidence
before the judge or jury,” Strickland, 466 U.S. at 695, and a
“verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors
than one with overwhelming record support,” id. at 696.
The Supreme Court has reaffirmed this framework re-
peatedly. See, e.g., Richter, 131 S. Ct. at 787-88; Rompilla,
545 U.S. at 380-81; Wiggins, 539 U.S. at 521.
The Illinois Appellate Court determined that Harris
was not prejudiced by counsel’s performance at
Diante’s competency hearing, so AEDPA requires us to
ask whether the state court reached a decision that
was either “contrary to, or involved an unreasonable ap-
plication of, clearly established Federal law, as deter-
mined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A
No. 12-1088 77
state court’s decision is “contrary to” clearly established
federal law where it is “substantially different from
the relevant precedent of [the Supreme] Court.” Williams
v. Taylor, 529 U.S. 362, 413 (2000). An “unreasonable
application” occurs when a state court “ ‘identifies the
correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that
principle to the facts’ of petitioner’s case.” Williams,
529 U.S. at 413.
2. Application
Determining whether Harris was prejudiced by her
counsel’s errors at the competency hearing actually
involves two separate inquiries: first, whether the ad-
mission of Diante’s testimony at trial would have had
a reasonable probability of changing the jury’s verdict;
and second, whether the errors had a reasonable prob-
ability of influencing the outcome of the competency
hearing itself.
a. Effect on the Verdict
We have already answered the first question by conclud-
ing (though under de novo review) that the exclusion
of Diante’s testimony was material for purposes of
the Compulsory Process Clause. See ante, section III.B.1, at
36-47. When a defendant is deprived of favorable evi-
dence, the same “reasonable probability” standard ap-
plies to determining materiality under Brady and the
Compulsory Process Clause, and to determining
78 No. 12-1088
whether the accused was prejudiced for the purposes
of Strickland. See Strickland, 466 U.S. at 694 (“Accord-
ingly, the appropriate test for prejudice finds its
roots in the test for materiality of exculpatory informa-
tion not disclosed to the defense by the prosecution,
and in the test for materiality of testimony made unavail-
able to the defense by Government deportation of a
witness.”) (citations omitted); United States v. Valenzuela-
Bernal, 458 U.S. 858, 867-68 (1982) (noting existence of
“materiality requirement” in “what might loosely be
called the area of constitutionally guaranteed access to
evidence”). The relevant standard is whether, if Diante
had testified, there was a “reasonable probability” that
the result of Harris’s trial would have been different. We
have already found that the exclusion of Diante’s testi-
mony was material to Harris’s defense, analogizing to
the Brady line of cases. Because of the equivalency
between Brady materiality and Strickland prejudice, the
same conclusion must apply to defense testimony that
is absent from trial due to deficient performance of
defense counsel.
Our review on the Strickland prejudice issue, however,
must be deferential under AEDPA. To grant habeas
relief on Harris’s Strickland claim, we must conclude
not just that there was a reasonable probability that
Diante’s testimony would have changed the outcome
of trial, but that the state court’s conclusion to the
contrary was an unreasonable application of clearly
established law.
For two reasons, we conclude that the state court’s
application of Strickland’s prejudice prong was not just
No. 12-1088 79
wrong but unreasonable. First, the court failed to analo-
gize to the Supreme Court’s Brady precedents, which
show unmistakably that the suppression of exculpatory
evidence from or relating to the case’s sole eyewitness
is reasonably probable to change the outcome of trial.
See Smith v. Cain, 132 S. Ct. 627, 630-31 (2012); Kyles
v. Whitley, 514 U.S. 419, 441-45 (1995); United States v.
Agurs, 427 U.S. 97, 112-13 n.21 (1976). A state court deci-
sion “involves an unreasonable application of this
Court’s precedent if the state court . . . unreasonably
refuses to extend [a legal principle from Supreme Court
precedent] to a new context where it should apply.”
Williams v. Taylor, 529 U.S. 361, 407 (2000). The Strickland
prejudice and Brady materiality standards are identical.
Harris’s ineffective assistance claim is an obvious
context to which the principle illustrated by Smith,
Kyles, and Agurs should apply. See Strickland, 466 U.S.
at 694.
Second, the Supreme Court’s Strickland precedents
also show that a defense counsel’s failure to secure sig-
nificant exculpatory or mitigating evidence can be prej-
udicial to the defense. See Porter v. McCollum, 130 S. Ct.
447, 453-56 (2009) (per curiam); Rompilla v. Beard, 545
U.S. 374, 390-93 (2005); Wiggins v. Smith, 539 U.S. 510, 534-
38 (2003). Our own precedents also demonstrate that
Strickland’s prejudice prong is met when defense
counsel’s deficient performance causes critical ex-
culpatory testimony to be absent from trial. See, e.g.,
Toliver v. McCaughtry, 539 F.3d 766, 776-78 (7th Cir. 2008)
(holding that trial counsel’s failure to call two witnesses
who would have offered testimony tending to show
80 No. 12-1088
defendant “had no intention of aiding and abetting in
[accomplice’s] murder” and “would have enhanced
significantly the chances of the jury’s accepting [the defen-
dant’s] characterization of the facts,” prejudiced his
defense, and the state court’s determination to the
contrary was “not only incorrect but unreasonable”);
Washington v. Smith, 219 F.3d 620, 634 (7th Cir. 2000)
(granting habeas writ and finding that petitioner was
prejudiced by counsel’s failure to produce alibi witnesses
for trial because, even though another alibi witness did
testify for the defense, the additional and more credible
witnesses “would have added a great deal of substance
and credibility” to petitioner’s alibi). So, too, do a number
of cases in other circuits. See, e.g., Stewart v. Wolfenbarger,
468 F.3d 338, 360-61 (6th Cir. 2006) (granting writ on the
grounds that the petitioner was prejudiced by counsel’s
failure to secure the testimony of alibi witnesses and to
call a witness who would have testified that a major
prosecution witness lied in testifying that petitioner
had threatened the victim before she was killed); Clinkscale
v. Carter, 375 F.3d 430, 445 (6th Cir. 2004) (granting writ
and holding that petitioner was prejudiced by counsel’s
failure to secure testimony of alibi witnesses); Anderson
v. Johnson, 338 F.3d 382, 393-94 (5th Cir. 2003) (granting
writ and finding that counsel’s failure to call the only
known exculpatory eyewitness satisfied Strickland’s
prejudice requirement).
These cases all fit with the lesson of the Supreme
Court’s Brady jurisprudence: when a defendant is de-
prived of the exculpatory, non-cumulative testimony of
one of the case’s few eyewitnesses, or the only eye-
No. 12-1088 81
witness, there is a reasonable probability the result
would have been different.2 2
22
In a number of similar cases, circuit courts have strongly
suggested that the prejudice prong was met and remanded for
an evidentiary hearing to determine the precise nature of
the omitted testimony. See, e.g., United States v. Moore, 651 F.3d
30, 87-88 (D.C. Cir. 2011) (per curiam) (concluding that
habeas petitioner “has made a ‘colorable claim’ that his
counsel’s decision not to call” the shooting’s only eyewitness,
who identified someone else as the assailant “was constitu-
tionally deficient and that he was prejudiced by his counsel’s
conduct,” but remanding for an evidentiary hearing because
of “lack of clarity” as to “the precise nature of [the witness’s]
testimony”), cert. denied in part and granted in part on
other grounds sub nom. Smith v. United States, 132 S. Ct. 2772(2012); Harrison v. Quarterman, 496 F.3d 419, 427-28 (5th Cir.
2007) (stating that “counsel prejudices his client’s defense
when counsel fails to call a witness who is central to
establishing the defense’s theory-of-the-case,” and concluding
that “in this case, there exists a ‘reasonable probability’ that,
but for counsel’s errors, the jury might have reached a
different verdict,” but remanding for evidentiary hearing to
determine what witness’s testimony would have been
because “the only evidence of what [witness] would have
testified to comes from” petitioner and witness “has not
provided an affidavit from [witness] indicating that [he]
would have been willing to testify”); Davis v. Lambert, 388
F.3d 1052, 1064-65 (7th Cir. 2004) (holding that counsel was
ineffective in failing to interview only sober eyewitness to
death of victim, stating that if his testimony would have
supported theory of self-defense advanced at trial by the
(continued...)
82 No. 12-1088
To the extent the Illinois Appellate Court concluded
that the failure to secure Diante’s testimony at trial did
not prejudice Harris’s defense, it was an unreasonable
application of Strickland and its progeny. If, as a result
of ineffective assistance of counsel, Harris was deprived
of Diante’s testimony, the errors prejudiced her defense.
b. Effect on the Competency Decision
Whether it is reasonably likely that counsel’s errors
altered the result of the competency hearing is a
separate question. The Illinois Appellate Court deter-
22
(...continued)
petitioner, “there is a reasonable probability that a court could
find” that he acted in self-defense, and remanding for eviden-
tiary hearing to determine what the anticipated testimony
of that witness would have been).
Here, we have a clear idea of what Diante’s testimony would
have been because he testified to the same matters at the
competency hearing at the time of trial. This sharply distin-
guishes this case from Harrison, Moore, and Davis and makes
remand for an evidentiary hearing unnecessary. See Schriro v.
Landrigan, 550 U.S. 465, 474 (2007) (“an evidentiary hearing is
not required on issues that can be resolved by reference to
the state court record”), quoting Totten v. Merkle, 137 F.3d
1172, 1176 (9th Cir. 1998); see also Siverson v. O’Leary, 764 F.2d
1208, 1218 (7th Cir. 1985) (declining to remand for evidentiary
hearing to consider prejudice prong unaddressed by district
court where record was sufficient for review).
No. 12-1088 83
mined that they did not, and we may therefore grant
the writ only if this decision was also an unreasonable
application of Supreme Court precedent. The appellate
court gave two reasons: first, “the record reflects that
defense counsel as well as the prosecutor spoke with
Diante before he testified and counsel makes no
showing that a different result would have obtained
had there been more extensive preparation,” and second,
“the trial judge noted in denying defendant’s
posttrial motions[ ] [that] his ruling would have been
the same had the burden been properly placed” on the
State and that Levy’s testimony “would [not] have
changed his opinion concerning Diante’s competency.”
Harris, 904 N.E.2d at 1098. There are two problems
with this analysis.
First, it weighs in isolation the effect of each aspect of
counsel’s deficient performance on the outcome of the
competency hearing, rather than, as the Supreme Court
requires, assessing the “totality of the omitted evidence.”
Williams, 529 U.S. at 397. To determine whether a dif-
ferent outcome is reasonably probable, the court must
“evaluate the totality of the available . . . evidence — both
that adduced at trial” and the additional available
evidence that adequate counsel would have procured.”
Id. The “predictive judgment” thus does not depend “on
the notion that a single item of omitted evidence . . .
would require a new hearing.” Id.; see also Strickland,
466 U.S. at 695 (“In making this determination, a court
hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury.”); Washing-
ton v. Smith, 219 F.3d 620, 634-35 (7th Cir. 2000) (“Evaluated
84 No. 12-1088
individually, these errors may or may not have been
prejudicial to Washington, but we must assess ‘the
totality of the omitted evidence’ under Strickland rather
than the individual errors. Considering the ‘totality of
the evidence before the . . . jury,’ [trial counsel’s] unpro-
fessional errors were prejudicial to Washington.”) (cita-
tion omitted). The question is whether counsel’s en-
tire performance at the hearing prejudiced Harris.
By analyzing each deficiency in isolation, the appellate
court clearly misapplied the Strickland prejudice prong.
Second, the appellate court improperly relied on the
trial judge’s own post hoc rationalization (during the
proceedings on Harris’s motion for a new trial) that a
more diligent performance would not have changed
his mind. Under Strickland, the assessment of prejudice
is an objective inquiry that “should not depend on the
idiosyncracies of the particular decisionmaker,” which
“are irrelevant to the prejudice inquiry.” 466 U.S. at 695;
see also Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir.
2007) (“we cannot accept as conclusive the judge’s state-
ment that the new evidence would not have made
any difference to the outcome of the case”); Hall v. Washing-
ton, 106 F.3d 742, 752 (7th Cir. 1997) (trial judge’s asser-
tion in a post-conviction proceeding that peti-
tioner’s “additional evidence would not have changed
his mind . . . cannot, however, be conclusive”). By
focusing on how the trial judge personally would have
ruled in the competency hearing if Harris’s counsel had
performed adequately, the Illinois Appellate Court
allowed subjective analysis to creep into the prejudice
inquiry. The court’s reasoning was therefore a misap-
No. 12-1088 85
plication of Strickland, under which courts must
consider the effect the evidence would have had on an
unspecified, objectively reasonable decision-maker — not
its effect on one particular judge.
The appellate court’s prejudice determination was
unreasonable insofar as it failed to apply the correct
framework. Applying that correct framework, the com-
bined effect of counsel’s errors was clearly prejudicial.
At a minimum, the application of the correct burden
of proof would, as a matter of law, have precluded
finding Diante incompetent under the second prong of
the competency statute, his capacity to understand a
witness’s duty to tell the truth. The trial court said in
his ruling at trial that he did not “find any questions at
all that were posed to the witness with regard to his
understanding of any concept of a duty to tell the
truth when presented in a courtroom,” and that the
“witness was never asked whether he would promise to
tell the truth and what that might mean to him here in
this proceeding.” S.A. 87, 88 (emphasis added). The trial
court ruled that Diante was incompetent under the
second prong because he erroneously believed that the
proponent of the witness bore the burden to establish
competency. Had Harris’s counsel called the court’s
attention to this error, the absence of any testimony as
to the second prong would as a matter of law have fore-
closed finding Diante incompetent on that basis.
Diante’s statement that he knew the difference between
lying and truth-telling and that he could be punished
for the one and rewarded for the other was enough to
find him competent on the second prong.
86 No. 12-1088
As for the first prong, it is true that the application of
the proper burden of proof would not, by itself, have
compelled the court to find Diante capable of expressing
himself coherently. But in light of the evidence that
was presented at the hearing, it is reasonably likely
that a different result would have obtained if defense
counsel had prepared for Diante’s testimony, secured
the presence of Levy, and objected to the court’s pre-
sumption against Diante’s competency. The only actual
and possible basis in the record for the conclusion that
Diante was incapable of expressing himself was the
idea that he could not “differentiate between reality
and fantasy.”
There is no doubt that adequate preparation for
Diante’s testimony would have mitigated the adverse
effect of his saying that Santa Claus, the tooth fairy, and
Spiderman were “real.” Reading Karen Wilson’s inter-
view with Diante would have alerted counsel that this
issue would likely come up on cross-examination and
that counsel should be ready to clarify the boy’s under-
standing in the hearing. The prosecutor’s questions on
this subject were confusing. At one point she asked
about the difference between “real things” and “cartoons,”
and then shifted to the difference between “real” and
“something else” — by which she evidently meant “ficti-
tious.” Adequate preparation of the witness would
have enabled defense counsel to recognize this obvious
misunderstanding and to correct it on re-direct or by
asking that the questions be made clear for the six-year-
old witness. And interviewing Diante in advance
would have allowed counsel to develop a rapport with
No. 12-1088 87
the witness and to anticipate the linguistic quirks (such
as pronouncing “limo” like “rainbow” and referring to
church as “heaven”) that made some of Diante’s
responses more difficult to comprehend. In short, pre-
paring Diante for his testimony would have made
defense counsel a better examiner and Diante a better
witness.
Levy would have strengthened the credibility of
Diante’s version of how Jaquari died by showing that
his account had remained consistent. Since the day after
the tragedy, he had said that Jaquari put the string
around his neck. Levy’s testimony also would have
directly contradicted the testimony of investigator
Wilson, who suggested at the hearing that Diante had
trouble distinguishing reality from fantasy and that he
had told her that he was asleep when Jaquari got hurt.
See Dkt. No. 1-17 at 86-87. Diante also told Levy that he
was asleep when Jaquari died, but he also explained
that Jaquari was playing and wrapped the elastic from
the sheet around his neck, and that “ ‘Jaquari had a bub-
ble’ while he was asleep.” S.A. 105. Levy’s testimony
thus could have helped reconcile an apparent dis-
crepancy in Diante’s account. The Levy interview notes
also indicated that Diante was competent to testify,
observing that he knew his age, colors, numbers, and
the “difference between truth/lies.” S.A. 104. As a trained
child-witness examiner in the state’s law enforcement
apparatus, Levy’s observations and opinions of Diante
likely would have been helpful in showing the trial
court that Diante could provide competent testimony.
88 No. 12-1088
If counsel had prepared adequately for Diante’s testi-
mony and secured Levy’s presence, the evidence in
support of Diante’s competency probably would have
outweighed the evidence against it. Even without Levy
and with an unprepared Diante, the trial judge said that
he had “considerable question” as to Diante’s capacity
to express himself so as to be understood. With the
benefit of Levy’s testimony and modest preparation of
Diante, it is reasonably likely that Diante would have
been found competent. Even if the evidence were only
in equipoise, the court still should have found Diante
competent if trial counsel had objected to the misalloca-
tion of the burden of proof. If counsel had made the
needed effort, it is reasonably likely that an objective
decision-maker would have found Diante competent
to testify. The Illinois Appellate Court’s opinion to the
contrary is itself unreasonable.
Harris has demonstrated that her defense counsel’s
performance was deficient at Diante’s competency
hearing, and that, but for his unprofessional errors,
there was a reasonable probability that both the outcome
of that hearing and the outcome of her trial would
have been different. Because of clear errors the Illinois
Appellate Court made in applying the prejudice standard
as developed by the Supreme Court’s cases under Strick-
land, we find its decision on that issue to have been
an unreasonable application of clearly established law.
See 28 U.S.C. § 2254(d)(1).
No. 12-1088 89
Conclusion
The decision of the district court is R EVERSED and
the case R EMANDED with instructions to grant a writ of
habeas corpus unless the State elects to retry Harris
within 120 days after issuance of the mandate.
M ANION, Circuit Judge, concurring. I concur with the
court’s comprehensive opinion. The Sixth Amendment
of the United States Constitution provides that
the accused shall have the right “to have compul-
sory process for obtaining witnesses in his favor.” This
seldom-visited provision necessarily emerges under
the facts of this case. Forty-five years ago the Supreme
Court summed it up pretty well.
The right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to pre-
sent the defendant’s version of the facts as well as
the prosecution’s to the jury so it may decide where
the truth lies. Just as an accused has the right to con-
front the prosecution’s witnesses for the purpose
of challenging their testimony, he has the right to
90 No. 12-1088
present his own witnesses to establish a defense. This
right is a fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19 (1967).
At the time of Jaquari’s death, his brother Diante was
five years old. Apparently he was the only one in the
room when Jaquari became strangled by the elastic
band from the fitted bed sheet. After many hours in
custody, Nicole Harris made a very lucid confession, on
videotape, under careful questioning by the prosecuting
attorney. When this was presented at trial, Ms. Harris
vehemently challenged it. Nevertheless, the jury viewed
it in full.
The court cites several shortcomings in Harris’s
counsel’s performance that contributed to the decision
not to allow Diante’s testimony. In that regard, I agree
that counsel’s assistance was ineffective.
If the government chooses to retry the case, presumably
two things will occur. The jury will again see the taped
confession and Ms. Harris will similarly challenge it.
But when Diante testifies, he will be 13 or 14 years old.
No doubt he has reflected on what he saw (and did not
see) ever since, especially during his visitations in
prison with his mother during the intervening years.
His reflections will be much more precise, and in all
likelihood beneficial to his mother.
Regardless of the decision whether or not to retry,
or the subsequent testimony if it is tried, nothing will
override the tragedy of Jaquari’s death.
10-18-12