Schmidt v. Foster, No. 17-1727 (7th Cir. 2018)Annotate this Case
Schmidt admitted to murdering his wife but argued the Wisconsin-law defense of “adequate provocation” to mitigate the crime from first- to second-degree homicide. A state judge held a pretrial hearing on that substantive issue, allowing Schmidt’s counsel to attend but not to speak or participate. The judge questioned Schmidt directly and ruled that Schmidt could not present the adequate provocation defense at trial. A jury convicted Schmidt of first-degree intentional homicide. The Wisconsin Court of Appeals held that the trial court did not violate Schmidt’s Sixth Amendment right to counsel. The Seventh Circuit initially granted habeas corpus relief, but, acting en banc, reversed itself and upheld the conviction. A state‐court decision can be a reasonable application of Supreme Court precedent even if it is an incorrect application, if the result is clearly erroneous, and if the petitioner presents “a strong case for relief.” While emphasizing that it did not endorse the constitutionality of the trial court’s “unusual ex parte, in camera examination” without counsel’s active participation, the court noted that the Supreme Court has “never addressed” a case like this. Even assuming this case involves a critical stage, Schmidt cannot establish that he was so deprived of counsel as to mandate the presumption of prejudice. A fair‐minded jurist could conclude that these facts were not “so likely to prejudice the accused” as to warrant the presumption of prejudice.
This opinion or order relates to an opinion or order originally issued on May 29, 2018.