Harold Earl v. Thomas Israel

CUDAHY, Circuit Judge,

concurring.

I do not agree that the failure of the police officers to testify was not prejudicial. The testimony seems to me to have been crucial in removing reasonable doubt about the defendant’s intent in conducting his altercation with Denise Stacy.¹ I am persuaded, however, that this failure to testify did not result from unconstitutionally ineffective assistance of counsel but rather from a series of misadventures relating in part, as the majority puts it, to “the judge’s somewhat erratic conduct of the trial.” I therefore concur in much of the analysis provided by the majority as well as in the result.

1 . The majority suggests that the evidence against Earl was overwhelming. Not so. No witnesses were present when the scuffle between Earl and Stacy occurred. Further, Dr. Harold Wagner, an experienced forensic pathologist, testified that, based upon his review of the circumstances surrounding Stacy’s death as well as the nature of the wounds inflicted, Earl’s act was “not intended." Dr. McDonald, a clinical psychologist, administered a series of tests to Earl, including the Wechsler Adult Intelligence Scale, from which he determined that Earl’s “full scale IQ” was fifty-five, which classified him as severely retarded and in the range of border and severe mental deficiency. Dr. McDonald concluded that it was probable that Earl’s act was unplanned and committed on impulse.