January 4, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. 13-CV-1150 Charles N. Clevert,
Wood, Chief Judge, and Hamilton and Barrett, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
Scott Schmidt murdered his wife, Kelly Wing-Schmidt. He
admitted the murder but tried to rely on the state-law
defense of "adequate provocation" to mitigate the
crime from first- to second-degree homicide. A state trial
judge denied Schmidt the assistance of his counsel while the
judge questioned Schmidt in a pretrial hearing on that
substantive issue. Under law clearly established by the
Supreme Court of the United States, the evidentiary hearing
on that substantive issue was a "critical stage" of
Schmidt's prosecution. By denying Schmidt the assistance
of counsel in that critical stage, the state court violated
his Sixth Amendment right to counsel.
Sixth Amendment guarantees the accused in a criminal case
"the Assistance of Counsel for his defence."
Because "an unaided layman" has "little skill
in arguing the law or in coping with an intricate procedural
system, " the Supreme Court has long held that the right
to counsel extends beyond the trial itself. United States
v. Ash, 413 U.S. 300, 307 (1973). Criminal prosecutions
involve "critical confrontations" before trial
"where the results might well settle the accused's
fate." United States v. Wade, 388 U.S. 218, 224
(1967). The Sixth Amendment therefore guarantees defendants
"the guiding hand of counsel" at all
"'critical' stages of the proceedings."
Id. at 224-25, quoting Powell v. Alabama,
287 U.S. 45, 69 (1932).
Schmidt admitted having murdered his wife, the only
substantive issue in the prosecution was whether he acted
under "adequate provocation, " which in Wisconsin
would mitigate homicide from first to second degree. The
prosecution opposed Schmidt's intended defense, arguing
before trial that he had failed to offer "some
evidence" of provocation, which would be sufficient to
shift the burden of persuasion to the state to disprove
provocation beyond a reasonable doubt. The trial court chose
to address this critical substantive issue before trial.
hearing where counsel debated the defense's written
summary of evidence of provocation, the trial court held an
unprecedented ex parte, in camera hearing.
The judge allowed Schmidt's counsel to attend the hearing
but, critically, did not allow him to speak or participate.
Instead, the judge questioned Schmidt directly. After
listening to Schmidt's answers, the judge ruled that
Schmidt could not present the adequate provocation defense at
trial. A jury convicted Schmidt of first-degree intentional
homicide, and he was sentenced to life in prison.
sought post-conviction relief, and the Wisconsin Court of
Appeals held that the trial court did not violate
Schmidt's Sixth Amendment right to counsel. That decision
was an unreasonable application of clearly established
Supreme Court precedent guaranteeing counsel at all critical
stages of criminal proceedings, including whenever
"potential substantial prejudice to defendant's
rights inheres in the particular confrontation."
Wade, 388 U.S. at 227. Schmidt therefore meets the
stringent standards for habeas corpus relief under 28 U.S.C.
Factual & Procedural Background
April 2009, Schmidt shot his wife, Kelly Wing-Schmidt, seven
times. She died in their driveway. When police officers
arrived, they found Schmidt standing by her body. He quickly
admitted he had shot her.
The Trial Court Proceedings
charged Schmidt with first-degree intentional homicide.
Schmidt never denied shooting and killing Kelly, but he
intended to argue at trial that he acted with "adequate
provocation." In Wisconsin, adequate provocation is an
affirmative defense that mitigates intentional homicide from
first to second degree for defendants who "lack
self-control completely at the time of causing death."
Wis.Stat. §§ 939.44; 940.01(2)(a). To be
"adequate, " the provocation must be
"sufficient to cause complete lack of self-control in an
ordinarily constituted person." § 939.44. If the
defendant can produce "some" evidence supporting
adequate provocation before trial, then the defendant may
introduce evidence of the defense at trial. State v.
Schmidt, 824 N.W.2d 839, 843 (Wis. App. 2012), citing
State v. Head, 648 N.W.2d 413, 439 (Wis. 2002). The
prosecution must then disprove the defense beyond a
reasonable doubt. Schmidt, 824 N.W.2d at 843, citing
Head, 648 N.W.2d at 437-38.
filed a pretrial motion disclosing that he would present
evidence of provocation through "false allegations,
controlling behaviors, threats, isolation, unfaithfulness,
verbal abuse and arguments." Schmidt planned to present
evidence that his wife had abused him emotionally and
physically throughout their marriage. He would have testified
that right before the shooting, he and Kelly had a heated
argument in which Kelly taunted him about an affair he had
just discovered, told him their children were not actually
his, and threatened to make up stories so that he would never
see their children again. According to Schmidt, he lost
self-control and shot his wife. The State objected to the
evidence, arguing that Schmidt's disclosure lacked
specificity and that the circumstances did not support an
adequate provocation defense. The State also argued that
Schmidt did not clarify the timeframe covered by his proposed
evidence and that evidence dating back too far would be
irrelevant and prejudicial.
court acknowledged the State's concerns. Over
Schmidt's objection, the court scheduled a hearing to
determine whether Schmidt had met the some-evidence standard
and could present the defense at trial. Before the hearing,
Schmidt submitted two documents: an offer of proof
summarizing the testimony of twenty-nine potential witnesses
and a legal analysis of the provocation defense with a
timeline of events from 2004 through the 2009 shooting.
evidentiary hearing began in court with Schmidt, his lawyer,
and the prosecutor present. The judge was not prepared to
decide on the paper submissions alone whether Schmidt could
meet the "some evidence" threshold for the
provocation defense. Schmidt's lawyer objected to having
to expose his defense evidence before trial. The judge
decided that he should question Schmidt ex parte to
assess the provocation defense. Schmidt's counsel agreed
that if the court intended to question Schmidt, it should do
so in chambers outside of the prosecutor's presence. The
court then proposed to the prosecutor that Schmidt's
counsel would attend the hearing in chambers, but would
"just be present" and "not saying
anything." The prosecutor agreed. Schmidt's counsel
did not object, but nobody asked Schmidt if he was willing to
go forward in this hearing, so critical to his fate, without
the assistance of his lawyer.
trial judge, court reporter, Schmidt, and Schmidt's
counsel proceeded to the judge's chambers. The judge
stated that Schmidt "appears in person" and that
"his attorney is also present but is not participating
in the hearing." The court then asked Schmidt an
open-ended question about what was on his mind when he shot
Kelly. Schmidt gave the first of what would be several
rambling narrative responses:
The day I went over was April 17th. I hadn't slept in at
least a week, week-and-a-half. And I-it was like two days
before that, I believe the 14th of April, the 14th or 15th of
April I think it was, that I found an e-mail on my work
computer from a-of a reservation for my wife and a guy that
she supposedly was a friend with that worked for Gold Cross
Ambulance. And I found that when I was at the fire station. I
knew of him, up until that point, that they were friends.
Um, I had been out of the house for a couple of weeks. And I
walked there. I went to the fire station, and I walked up to
the house, because I knew there were some issues with, um,
Kelly had threatened to take-these aren't my f'ing
kids, that if she saw me at the house that she didn't
want-I wasn't going to be part of the kids' lives
anymore, our two youngest children. I just had a feeling that
she'd probably call the cops if I pulled in the driveway.
So I parked at the station, Fire Station 6, over on
Lightning, and I walked to the house.
Actually, my main goal was, um, I had a job to do. I was
going to build a house for a retired battalion chief up in
Door County. And all my tools, my job trailer, and everything
was at our house on JJ on Edgewood. I was at the time staying
out at the lake-the lake house that I had- had owned prior to
us being married in Stock-bridge. And there's-I
didn't have any heat, slept on the couch, there was no
blankets. I mean, it was-there were no dishes. I
had-everything was-the house was empty. Gas was actually shut
off because we-instead of paying the bills there, I wanted to
make sure the bills were paid where the kids and Kelly were
at … .
first answer continued for fourteen transcript pages. Thus
began what the Wisconsin Court of Appeals called a
"rambling narrative" that spans thirty-five
transcript pages. Schmidt, 824 N.W.2d at 847. The
trial court asked Schmidt the same open-ended question about
his mental state six times. Each time Schmidt's response
was unfocused and confused with irrelevant details.
the end of the questioning, the judge took a short break for
a telephone call. Schmidt's lawyer asked if he could talk
to Schmidt. The judge responded that they should limit
discussion to reviewing the written offer of proof. After the
break, the judge asked Schmidt a few more questions before
ending the hearing. Later that day, the court orally
announced that "the circumstances that led to the death
of Kelly Wing did not involve a provocation" and denied
Schmidt's motion to present the defense at trial,
rejecting it conclusively.
convicted Schmidt of first-degree intentional
homicide. Schmidt moved for a new trial, arguing
that he had been denied his Sixth Amendment right to counsel
and his Sixth and Fourteenth Amendment right to present a
defense. The trial court denied the motion, concluding that
Schmidt had not met his burden of production to present the
adequate provocation defense. The trial court also concluded
that Schmidt was not denied counsel at the ex parte
hearing because his counsel submitted the written offer of
proof, made an oral argument, and conferred with Schmidt
during the recess for the judge's telephone call.
appealed, and the Wisconsin Court of Appeals affirmed. The
Court of Appeals found that Schmidt had not met the
some-evidence standard, though the court called it "a
close question." The court found that the ex
parte interrogation was a valid exercise of the trial
judge's discretion under state law. Turning to the Sixth
Amendment question, the Court of Appeals found that the
ex parte hearing was not a critical stage of the
proceedings at which Schmidt was entitled to counsel. The
court also reasoned that the hearing was not adversarial and
that counsel was available to advise Schmidt. The court did
not reach Schmidt's claim that the hearing violated his
right to present a defense. The Wisconsin Supreme Court
then sought habeas corpus relief in federal court, raising
the Sixth and Fourteenth Amendment claims. The district court
denied relief on both. The district court considered de
novo Schmidt's claim that he was denied the right to
present a defense and concluded that the Wisconsin evidence
law did not deprive him of that right because it protected a
legitimate interest and was not arbitrary or
disproportionate. The court next found that the deferential
standard of review under the Antiterrorism and Effective
Death Penalty Act (AEDPA) governed the Sixth Amendment claim.
See 28 U.S.C. § 2254(d). The district court concluded
that the Wisconsin Court of Appeals decision was not contrary
to or an unreasonable application of Supreme Court precedent
guaranteeing criminal defendants counsel at all critical
stages. The district court therefore denied habeas relief but
granted a certificate of appealability on both issues.
Wisconsin Court of Appeals rejected Schmidt's Sixth
Amendment claim on the merits, and the facts are not
disputed. Under AEDPA, a federal court therefore cannot grant
a writ of habeas corpus on that claim unless the state court
decision "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1). A state court's decision is
unreasonable if it correctly identifies the controlling
Supreme Court precedent but "unreasonably extends"
that "legal principle" to "a new context where
it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply."
Williams v. Taylor, 529 U.S. 362, 407 (2000). To
obtain federal relief, Schmidt must show that the state court
decision was not just incorrect but "objectively
unreasonable." Id. at 409- 10; accord, e.g.,
Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)
(per curiam). This standard is meant to be "difficult to
meet." Harrington v. Richter, 562 U.S. 86, 102
under this deferential standard, Schmidt is entitled to a
writ of habeas corpus. The state-court decision was an
objectively unreasonable application of Supreme Court
decisions on the right to counsel. The ex parte
hearing was a critical stage of the proceeding. Schmidt was
guaranteed "the guiding hand of counsel" throughout
it, see Powell, 287 U.S. at 69, but he did not have
that guidance because of the judge's ground rules for his
inquisition of Schmidt, barring his counsel from
participating. Because we grant Schmidt's petition based
on the violation of his right to counsel, we do not reach his
claim that the trial court also denied his right to present a
Sixth Amendment guarantees that in "all criminal
prosecutions, the accused shall enjoy the right" to
"have the Assistance of Counsel for his defence."
The Supreme Court has long recognized that the right applies
not only at trial but also at all "critical stages"
of the adversary process. The first question in this case is
the scope of the Supreme Court's precedents on what
constitutes a "critical stage."
look at the history of the Sixth Amendment provides helpful
context for understanding the scope of a defendant's
right to counsel in pretrial proceedings. In United
States v. Wade, 388 U.S. 218 (1967), the Supreme Court
The Framers of the Bill of Rights envisaged a broader role
for counsel than under the practice then prevailing in
England of merely advising his client in 'matters of law,
' and eschewing any responsibility for 'matters of
fact.' The constitutions in at least 11 of the 13 States
expressly or impliedly abolished this distinction. Powell
v. State of Alabama, 287 U.S. 45, 60-65; Note, 73 Yale
L.J. 1000, 1030-1033 (1964). 'Though the colonial
provisions about counsel were in accord on few things, they
agreed on the necessity of abolishing the facts-law
distinction; the colonists appreciated that if a defendant
were forced to stand alone against the state, his case was
foredoomed.' 73 Yale L.J., supra, at 1033-1034.
This background is reflected in the scope given by our
decisions to the Sixth Amendment's guarantee to an
accused of the assistance of counsel for his defense. When
the Bill of Rights was adopted, there were no organized
police forces as we know them today. The accused confronted
the prosecutor and the witnesses against him, and the
evidence was marshalled, largely at the trial itself. In
contrast, today's law enforcement machinery involves
critical confrontations of the accused by the prosecution at
pretrial proceedings where the results might well settle the
accused's fate and reduce the trial itself to a mere
formality. In recognition of these realities of modern
criminal prosecution, our cases have construed the Sixth
Amendment guarantee to apply to 'critical' stages of
the proceedings. The guarantee reads: 'In all criminal
prosecutions, the accused shall enjoy the right * * * to have
the Assistance of Counsel for his defence.'
(Emphasis supplied.) The plain wording of this
guarantee thus encompasses counsel's assistance whenever
necessary to assure a meaningful 'defence.'
388 U.S. at 224-25 (footnotes omitted, emphasis added).
Court has identified two historical reasons for the right to
counsel. First was the development of an "intricate
procedural system." United States v. Ash, 413
U.S. 300, 307 (1973). As the Court explained:
A concern of more lasting importance was the recognition and
awareness that an unaided layman had little skill in arguing
the law or in coping with an intricate procedural system. The
function of counsel as a guide through complex legal
technicalities long has been recognized by this Court.
[…] The Court frequently has interpreted the Sixth
Amendment to assure that the 'guiding hand of
counsel' is available to those in need of its assistance.
Id. at 307-08. Second was the development of the
public prosecutor: "Another factor contributing to the
colonial recognition of the accused's right to counsel
was the adoption of the institution of the public prosecutor
from the Continental inquisitorial system." Id.
at 308. "Thus, an additional motivation for the American
rule" that a criminal defendant is entitled to counsel
"was a desire to minimize imbalance in the adversary
system that otherwise resulted with the creation of a
professional prosecuting official." Id. at 309.
An uncounseled defendant could not be expected to argue his
case, navigate the rules of evidence, or articulate his
defenses with the same skill as an "expert adversary,
" the prosecutor. Id. at 310.
time, the same became true of various pretrial steps in
prosecutions. With increasing frequency, defendants
confronted issues before trial that previously would have
surfaced at trial-issues like articulating defenses or
disputing the admissibility of evidence. With the history of
the Sixth Amendment in mind, the Court has repeatedly applied
the right to counsel to these critical confrontations
"that might appropriately be considered to be parts of
the trial itself, " that is, steps when "the
accused was confronted, just as at trial, by the procedural
system, or by his expert adversary, or by both."
Id. at 310. The Court has called these
confrontations "critical stages." See, e.g.,
Wade, 388 U.S. at 224; Hamilton v. Alabama,
368 U.S. 52, 53-54 (1961).
clearly established that criminal defendants are entitled to
counsel at all critical stages of the criminal process, and
the case law on which stages are critical is extensive. The
State relies here on Carey v. Musladin, 549 U.S. 70
(2006), which explained that "clearly established
Federal law" under § 2254(d)(1) includes only the
Supreme Court's holdings, not its dicta. Id. at
74. In Carey, the Court rejected a Ninth Circuit
decision for reading Supreme Court precedent at too high a
level of generality. Id. at 75-76. Wisconsin uses
Carey to argue that no clearly established federal
law applies to this case because the Supreme Court has not
held that a hearing like the extraordinary ex parte,
in camera hearing here is a critical stage.
deference does not go so far. A few months after deciding
Carey, the Court clarified that AEDPA does not
require "federal courts to wait for some nearly
identical factual pattern" before granting relief.
Panetti v. Quarterman, 551 U.S. 930, 953 (2007),
quoting Carey, 549 U.S. at 81 (Kennedy, J., con-
curring in judgment); see also Williams, 529 U.S. at
407 (holding that state courts can unreasonably apply clearly
established federal law to facts the Supreme Court has not
considered). "Nor does AEDPA prohibit a federal court
from finding an application of a principle unreasonable when
it involves a set of facts ...