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Keith v. Schaub

United States Court of Appeals, Seventh Circuit

November 14, 2014

CRYSTAL KEITH, Petitioner-Appellant,
v.
DEANNE SCHAUB, Warden, Taycheedah Correctional Institution, Respondent-Appellee

Argued November 3, 2014

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 12-C-559 -- William E. Callahan, Jr., Magistrate Judge.

For Crystal Keith, Petitioner - Appellant: Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI.

For Deanne Schaub, Respondent - Appellee: Jacob J. Wittwer, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.

Before WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.

OPINION

Page 452

Easterbrook, Circuit Judge

Crystal Keith was sentenced to imprisonment for reckless homicide after a jury found that she had killed Christopher, a 13-month-old baby in her care. Keith called 911 and told the operator that she had " just killed a baby." During a videotaped interview she admitted

hitting Christopher to make him stop crying, lifting Christopher by his feet and placing his body weight on his head, slapping and choking Christopher, and attempting to resuscitate Christopher by inserting her finger and a hairbrush down his throat to induce vomiting. Keith also provided details of the various ways in which she abused C.T. [a second child in her care], including burning C.T.'s feet with hot water, hitting C.T.'s feet so much that Keith began covering C.T.'s feet with socks to avoid anyone noticing her injuries, and slapping C.T. so hard that Keith covered C.T.'s face with a scarf to prevent Keith's husband, Reginald, from noticing.

State v. Keith, 2011 WI App. 99 ¶ 2, 334 Wis.2d 809, 800 N.W.2d 958. Keith applied for a writ of habeas corpus under 28 U.S.C. § 2254, contending that the state trial judge unduly limited the testimony of a psychologist. The district court denied the petition.

The trial judge allowed Michael Kula, the psychologist,

to testify about his diagnoses and the general characteristics of people with those diagnoses, but did not allow Dr. Kula to testify about Keith's history of abuse. Dr. Kula then testified, in the presence of the jury, that Keith suffered from a schizoid personality disorder, major depressive disorder, general anxiety disorder, post-traumatic stress disorder, and obsessive-compulsive disorder. Dr. Kula also testified that Keith had an IQ of 74.

2011 WI App. 99 ¶ 15. The judge did not allow Kula to testify about Keith's mental state on the day Christopher died. The judge thought Keith's history (she had been beaten and sexually abused as a child) and its consequences irrelevant to a charge of reckless homicide and barred by the doctrine of State v. Morgan, 195 Wis.2d 388, 410, 536 N.W.2d 425 (Wis. App. 1995), under which a psychologist or psychiatrist " may not give his or her opinion on the issue of capacity to form intent if that opinion rests in whole or in part on the defendant's mental health history." ( Morgan interprets Steele v. State, 97 Wis.2d 72, 294 N.W.2d 2 (1980), and State v. Flattum, 122 Wis.2d 282, 361 N.W.2d 705 (1985). State courts sometimes call its approach the Steele--Flattum doctrine.) Keith maintains that, by excluding some of Kula's proposed testimony, the state judiciary violated her constitutional right to present a defense to the charge she was facing.

To the extent the state judiciary held part of Kula's testimony inadmissible as irrelevant, it was making a decision of state law. A federal court cannot second-guess the state about the elements of a state offense and what testimony is or isn't relevant. See, e.g., Br ...


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