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Brown v. Sternes

September 04, 2002


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 5341--William T. Hart, Judge.

Before Posner, Coffey and Diane P. Wood, Circuit Judges.

The opinion of the court was delivered by: Coffey, Circuit Judge


This case is before us on a writ of habeas corpus. In 1991, Petitioner-Appellant Johnnie Brown ("Brown") was arrested, and shortly thereafter convicted after a bench trial of armed robbery and was sentenced to the maximum term of 30 years imprisonment. After exhausting his appeals in the Illinois state court system, Brown petitioned for relief in the federal district court under 28 U.S.C. § 2254, alleging that he had received ineffective assistance of counsel and arguing that his attorneys failed to bring his mental problems to the court's attention and that the proceedings in the state court infringed upon his constitutional right not to be tried when mentally incompetent. The district court dismissed Brown's petition on April 19, 2001. Brown appeals. For the reasons we set forth, we conclude that Brown was denied his Sixth Amendment right to effective assistance of counsel. We remand with instructions to grant the writ of habeas corpus unless the State of Illinois elects to retry Brown within a reasonable time to be determined by the federal district court.

This case exposes a tragic breakdown in the Cook County, Illinois criminal justice system. A mentally ill criminal defendant of recent vintage was arrested, put on trial, convicted of armed robbery, and sentenced to a term of thirty years without anyone taking proper notice of the fact that this same defendant had been diagnosed on more than one occasion, confined and treated (from 1986-88), and medicated intermittently for chronic schizophrenia for an extended period of years. His court-appointed attorneys provided a halfhearted defense, neglecting to thoroughly investigate his medical condition and failing to procure medical records establishing that he suffered from a myriad of psychiatric problems. Thereafter, the attorneys proffered self-serving affidavits once their lackadaisical lawyering was revealed and challenged. Their less-than-lawyer-like attention to duty caused problems for the court-appointed psychologist and psychiatrist. These doctors, relying on inadequate data, filed reports with the court that could best be classified as incomplete, as they ignored essential documentation of his medical history (i.e., his past psychiatric records), a basic element and requirement of any competency evaluation, and furthermore overlooked important information easily ascertainable from the defendant's family members. The state probation officer, in preparing the pre-sentence investigative report, neglected to interview the defendant's family members, to make a thorough inquiry about Brown's prior confinement, (i.e., his adjustment to his institution), to investigate the circumstances surrounding his general discharge from the Navy, or his mental health history. Thus, the sentencing judge was less than well-informed of critical information, including the defendant's long and welldocumented history of mental illness, as well as his prolonged period of treatment and confinement in a psychiatric unit during his prior imprisonment.


A. Brown's Medical History

Brown's medical records reflect that he was initially diagnosed to be suffering from chronic schizophrenia *fn1 in 1986 while incarcerated in the Menard Correctional Facility in southern Illinois. During his period of confinement, Brown was found to be unable to function in the minimum security unit of the facility because he was mentally incapable of following the orders of the security personnel and counselors, which in turn necessitated his transfer to the prison's psychiatric unit. Brown's treating psychiatrist at Menard, Dr. Vallabhaneni, noted in his reports throughout 1986 that Brown had "no ability to communicate" and had admitted to hearing voices that "help him to do his time." Dr. Vallabhaneni diagnosed him as suffering from chronic schizophrenia and prescribed various anti-psychotic medications for Brown on a regular basis and continued to treat his mental illness until his release in 1988. During the defendant's period of treatment, Dr. Vallabhaneni noted on at least four occasions in 1986 and 1987 that Brown was "probably hallucinating," and that Brown was not only uncooperative, but demonstrated little or no insight into the existence of his psychiatric problems and frequently refused to take his prescribed medication. Throughout this period Brown insisted that he was not mentally ill and spoke very little about his mental condition with Dr. Vallabhaneni. After nearly two years of confinement and treatment, Dr. Vallabhaneni noted on May 1, 1988 that Brown's psychiatric problems are "in a chronic state and he is not making any progress or worsening either."

In 1989, after Brown's release from prison, he applied for Social Security disability benefits. As part of his application for benefits, Dr. Mark Amdur, a consulting psychiatrist for the Social Security Administration, evaluated Brown and once more diagnosed him as suffering from chronic schizophrenia. Dr. Amdur observed and diagnosed the following symptoms: impaired concentration and attention, stilted speech with moderately severe irrelevancy and illogicality, loosened associations, and auditory hallucinations. Additionally, Dr. Amdur interviewed Brown's mother, who is a nurse, about his mental state, and she advised the doctor that his "mind is random" and that he makes sense one minute and then "goes into autistic position and talks to himself." Brown's mother also reported that he told her that he heard voices. Unfortunately, not one of these records referred to above was reviewed by the court-appointed mental health doctors who examined Brown, much less introduced into evidence by Brown's attorneys at his state criminal trial.

B. Brown's Arrest

The police report and the trial testimony from the victim and the defendant outline essentially similar conduct on the part of the defendant at the time of the crime. At about 12:45 a.m. on March 26, 1991, roughly an hour before the armed robbery occurred, the defendant and the victim, James Brown, *fn2 engaged in a brief conversation about a cigarette. About an hour later, the defendant encountered the victim a second time. According to the victim, the defendant grabbed him from behind, held a pearl-handled knife to his throat, and demanded "everything [he] had," which amounted to fifty cents and an adult bookstore token. The defendant, however, testified that he was in fear for he believed the victim was following him and that he thought the victim was going to attack him. The defendant said he grabbed the victim, "showed him" the knife, demanded to know why the victim was following him, and only then did he ask the victim for money. Brown was apprehended a few minutes later, and the police recovered a pearl-handled knife, some change, and an adult bookstore token.

C. Brown's Pre-Trial Proceedings

On April 17, 1991, Asst. Public Defender Camille Kozlowski was appointed to represent Brown. Six months later, on October 28, 1991, on what was to have been the date of Brown's criminal trial, Kozlowski asked the court for a continuance in order that she might arrange for Brown to be evaluated both for "mental competency" and for "sanity." When the judge asked why she had waited until the day of trial to raise this issue, Kozlowski replied that just that morning, Brown had informed her that Professor Thomas Geraghty, director of the Northwestern University Law Center, had previously represented Brown. Kozlowski telephoned Geraghty, who advised her that Brown had once been found "unfit for trial" and that while incarcerated at Menard he had received "large doses" of "psychotropic" medication.

The trial judge, reluctant to grant the continuance on such short notice, was eventually persuaded by an insistent Ms. Kozlowski. She stated that after first meeting Brown, she realized that there was "something different" about him. She complained to the judge of her "difficulties" communicating with Brown, that he did "not answer some of my questions," and that he "yelled at my law clerk." She also told the judge that this new information about Brown's mental issues "certainly answers some of the questions that I had." The rest of her onthe-record statements bear quoting at length, especially in light of her later prevarications:

Your honor, if there is an issue of fitness or sanity, I believe justice is not going to be served unless we have that answer, an answer to that. I would apologize to the Court for any inconvenience, but this is a serious case as it is a Class X case; Mr. Brown is looking at six to thirty years in the penitentiary. And I think it's very important that we look into these issues. I am not doing this at the last minute to avoid trial, obviously, your Honor, I would only do it because this man, who is the legal assistant dean at Northwestern indicated that he--Mr. Brown--has some serious background, psychiatric background. Kozlowski concluded her supplication by notifying the judge that she had just begun to attempt to secure Brown's "records from the Psychiatric Institute" at Menard, that the authorities there stated "they are looking for them," and that she "just need[ed] to examine those records." The judge granted the motion and set a status hearing for November 25, 1991, after a Behavioral Clinic fitness and sanity evaluation (BCX) could be performed. The record reflects that Kozlowski subpoenaed Brown's medical records from the Illinois State Penitentiary on November 1, 1991.

D. Brown's Mental Health Examinations

On November 19 and 21, 1991, doctors from the Cook County Circuit Court's Psychiatric Institute, at the direction of the criminal court, interviewed and examined Brown to determine his fitness for trial, sanity, and ability to understand his constitutional rights. These examinations were conducted without the benefit of Brown's history of mental illness, treatment, and confinement in the Menard psychiatric unit. *fn3 His mental history had not been forwarded to the court. Despite her stated belief that there was "certainly an issue of sanity" and her prior request to the trial judge, Brown's court-appointed attorney Kozlowski not only failed to follow up on her subpoena, but also failed to advise the court-appointed doctors (Psychiatric Institute) that she had been informed that Brown had a recent history of treatment for mental illness and of his confinement in the psychiatric unit at Menard.

The record reflects that during Brown's initial competency exam on November 19, he personally made the courtappointed psychologist, Dr. Rabin, aware of the fact that he had a history of prior psychiatric problems and treatment. Brown informed Dr. Rabin that he suffered from multiple hallucinations ("auditory, visual, olfactory, and tactile"), had been placed in a "special unit" at Menard, and was prescribed the anti-psychotic medication thiothixene ("Navane") for some two years while in confinement. Dr. Rabin's report is summary in nature, evidenced by the fact that he made but a most modest effort to test the credibility of Brown's assertions concerning his mental health history, his ingestion of prescribed anti-psychotic medication, and his confinement in a psychiatric unit at Menard. Furthermore, he made no effort to locate Brown's medical records to ascertain the veracity of Brown's claims. On the contrary, Dr. Rabin's written report simply reflects his summary dismissal of Brown's statements concerning his illness, and an acknowledgment that Brown "dropped his allegations of multiple hallucinations" after he had "confronted and pushed" Brown. *fn4 Dr. Rabin's conclusion that Brown was fabricating his history of mental illness (referring to him as "malinger[ing] in a half-hearted way"), is a particularly dubious judgment when the subject has just recently been diagnosed as a chronic schizophrenic. *fn5

Two days later, on November 21, 1991, Dr. Gerson Kaplan, a psychiatrist at the Psychiatric Institute, met with Brown to evaluate his fitness to stand trial. Prior to interviewing Brown, Dr. Kaplan reviewed the arrest report as well as Dr. Rabin's report. Even though Dr. Rabin's notes reflected that Rabin had discussed Brown's prior psychiatric treatment and confinement at Menard with him, Dr. Kaplan also failed to conduct an adequate investigation into the possibility that Brown had in fact been diagnosed as suffering from chronic schizophrenia and had received treatment, including medication, for his mental illness. Dr. Kaplan's report briefly discussed Brown's claims of a previous history of psychiatric problems:

Defendant states his only psychiatric history was in 1988, when he was stabbed while he was at Menard and he said at that point, he was placed on psychiatric medication, he is vague as to the reasons for this or what the medication was. . . . Defendant denies any other psychiatric history other then [sic] the above mentioned history from Menard.

The record reflects that Dr. Kaplan, even though aware of Brown's claim to have been confined in the Menard psychiatric unit, offered no explanation for his failure to attempt to get information from either Kozlowski or from Menard about Brown's stated psychiatric problems in testing Brown's history of past recollection for accuracy and truthfulness. In spite of the absence of information concerning Brown's case history, Dr. Kaplan concluded that the defendant was "mentally fit for trial" as of November 21, 1991, and furthermore went on to find that he was legally sane at the time of the commission of the offense charged, and submitted this recommendation to the court.

E. Brown's Status Hearing

Brown appeared in court for a status hearing on November 25, 1991. On the basis of Dr. Kaplan's medical report, the trial judge concluded that Brown was fit to stand trial. Kozlowski, in spite of her wealth of knowledge about her client to the contrary, failed to object or question Kaplan's competency recommendation in any manner, much less the court's finding that Brown was mentally competent to proceed to trial. She also neglected to make the court aware that the prison authorities at Menard had not yet complied with the subpoena for the records.

Kozlowski's less than vigorous approach in advocating her client's interests came in spite of several important facts: (1) she had been informed by Geraghty, the Northwestern University Law School professor, that Brown had previously been prescribed and received anti-psychotic medication; (2) she had also been informed by Geraghty that Brown had previously been found unfit to stand trial; (3) she had been having difficulty communicating with Brown and had as well advised the court of the episode when he yelled at her law clerk; (4) she had earlier expressed to the trial judge that there was "certainly an issue of sanity"; and (5) she had subpoenaed, but never received (and neglected to continue her investigation into the failure to produce) Brown's medical records from Menard.

Not surprisingly, as a result of the inadequate work products of the public defenders and the court-appointed doctors, the court found Brown competent to stand trial and set the date for his criminal proceeding in January 1992.

F. Brown's Trial

On January 30, 1992, the day of the defendant's trial before Judge Morissey in the Cook County Circuit Court, Kozlowski was ill. At trial he was represented by a substitute public defender, Lafonzo Palmer, who met Brown for the first time that morning. Kozlowski neglected to inform Palmer of Brown's questionable conduct with her and her law clerk as well as the fact that she had been informed that Brown had suffered recently from mental problems, that he had been confined in a psychiatric unit while receiving treatment at Menard, and furthermore that she had as of that date been unable to obtain Brown's medical records. As a result of these problems in the Cook County, Illinois justice system and state prison system, attorney Palmer conducted Brown's defense totally unaware of the fact that Brown had been previously diagnosed as suffering from chronic schizophrenia and had been treated for the same. The only knowledge that Palmer had regarding Brown's mental condition was the November 21, 1991, report in Brown's file from Dr. Kaplan stating that Brown was competent to stand trial and was also sane at the time of the offense.

Brown waived his right to a jury trial and entered a plea of not guilty, although the transcript of Brown's colloquy with the judge reveals Brown's confused responses to the judge's questions about the waiver of his constitutional rights. A 30-minute bench trial ensued, during which time only three witnesses (the victim, the arresting officer, and Brown) testified. During Brown's short time on the witness stand, the judge's own frustration with Brown is evident, as the judge had to instruct Brown repeatedly to speak so that he could be understood. The essence of Brown's testimony was (like his statement to the police) that he believed the victim was following him, that he was going to attack him, and that his use of the knife was designed to scare the victim away.

Shortly after the defense rested, the judge mentioned that he thought he had observed Brown laughing at an inappropriate time during the trial and asked Brown if "there was something funny?" At that point, Brown engaged in an outburst of random obscenities and insults directed at the court as follows:

MR. BROWN: F*** you, Jack. Hear what I am saying?

THE COURT: Take it easy, Mr. Brown.

MR. PALMER: Be quiet, Johnnie.

MR. BROWN: I am grown. I am locked up, mother f***er. That is my ...

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