698 F.3d 609 (7th Cir. 2012), 12-1088, Harris v. Thompson

Docket Nº:12-1088.
Citation:698 F.3d 609
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Nicole HARRIS, Petitioner-Appellant, v. Sheryl THOMPSON, Warden, Respondent-Appellee.
Attorney:Alison R. Flaum (argued), Attorney, Northwestern University School of Law, Bluhm Legal Clinic, Robert R. Stauffer, Attorney, Jenner & Block LLP, Chicago, IL, for Petitioner-Appellant. Erin O'Connell (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
Judge Panel:Before MANION, KANNE, and HAMILTON, Circuit Judges. MANION, Circuit Judge, concurring.
Case Date:October 18, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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698 F.3d 609 (7th Cir. 2012)

Nicole HARRIS, Petitioner-Appellant,


Sheryl THOMPSON, Warden, Respondent-Appellee.

No. 12-1088.

United States Court of Appeals, Seventh Circuit.

October 18, 2012

Argued June 7, 2012.

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Alison R. Flaum (argued), Attorney, Northwestern University School of Law, Bluhm Legal Clinic, Robert R. Stauffer, Attorney, Jenner & Block LLP, Chicago, IL, for Petitioner-Appellant.

Erin O'Connell (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before MANION, KANNE, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Illinois prisoner Nicole Harris was convicted in an Illinois state court of murdering her four-year-old son, Jaquari Dancy, and was sentenced to 30 years in prison. It is undisputed that Jaquari died from asphyxiation and that the instrument of death was an elastic band that had come loose from a fitted bed sheet. The parties also agree that Jaquari was not alone when he died. His five-year-old brother Diante was in the top bunk of the bed the two shared. On the day of Jaquari's death, Harris disciplined the boys for leaving the apartment while she was across the street doing laundry. The State's theory was that Jaquari would not stop crying, and Harris grew so mad that she strangled him with the elastic band while Diante slept in the bunk above. The defense theory was that Jaquari had wrapped the elastic around his own neck and accidentally asphyxiated himself while Harris was at the laundromat. At trial, by far the most damning evidence against Harris was her videotaped confession, recorded the day after Jaquari's death following 27 hours of intermittent interrogation at a Chicago police station. In the tape, Harris admitted to choking Jaquari with the elastic band because he had misbehaved.

Harris's best exculpatory evidence was the proffered testimony of Diante, age six at trial, who has maintained since he was first interviewed the day after Jaquari's death that his brother wrapped the elastic band around his own neck and that neither his mother nor father was present when he did so. The jury never heard Diante's testimony, however, because the trial court determined that Diante was not a competent witness. No one disputes that the trial judge made a legal error in reaching this conclusion: he reversed Illinois law's

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presumption of competency by requiring the defendant, as the proponent of the witness, to prove that Diante was competent to testify. Illinois's competency statute places the burden of proof on the challenging competency— in this case, the State— even when the witness is a child. See 725 ILCS 5/115-14(c).

In this collateral attack on her conviction, Harris contends that the trial court's exclusion of Diante's testimony violated her federal Sixth Amendment right to present witnesses in her own defense, see Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and that she received ineffective assistance of counsel at Diante's competency hearing. The original state trial court denied Harris's motion for a new trial on these and other grounds. The Illinois Appellate Court rejected her direct appeal, and the district court determined that federal habeas relief was not available.

We reverse with instructions to grant the writ. A court's exclusion of defense evidence violates the Compulsory Process Clause of the Sixth Amendment where the evidence is material to the outcome of trial and the application of the evidentiary exclusion is arbitrary or disproportionate to the state's legitimate interests promoted by the rule. Although Diante and his testimony posed challenges, the complete exclusion of this critical exculpatory evidence in this case was arbitrary and disproportionate to the truth-seeking and reliability concerns advanced by witness competency restrictions. We review this issue de novo because it was not addressed by the Illinois courts. The disqualification of Diante as a witness violated Harris's Sixth Amendment right to present a complete defense.

We also conclude that trial counsel's serious errors in the competency hearing deprived Harris of the right to effective counsel. As the only eyewitness to Jaquari's death, Diante's testimony was essential to Harris's defense. His competency hearing was crucial, but Harris's counsel was not ready for it: he did not interview Diante, he did not secure the presence of a witness who would have shown that Diante's recollections of what happened were consistent and credible, and he did not correct the trial court's misapplication of the burden of proof. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and its progeny, each of these mistakes— lack of investigation, failure to secure a key witness, and ignorance of applicable law— amounted to constitutionally deficient performance of defense counsel. If counsel had taken simple and obvious steps to prepare for the hearing, it is reasonably likely that Diante would have been deemed competent. And if the jury had heard his testimony, there is a reasonable probability that the outcome of the trial would have been different. In concluding that Harris was not prejudiced by her counsel's errors at the competency hearing, the state appellate court unreasonably applied Strickland.

I. Factual and Procedural Background

The underlying facts of this case are detailed in the Illinois Appellate Court's decision affirming Harris's conviction and sentence. People v. Harris, 389 Ill.App.3d 107, 328 Ill.Dec. 567, 904 N.E.2d 1077 (2009). Those facts are entitled to a presumption of accuracy, see 28 U.S.C. § 2254(e)(1), and they are in any event uncontested insofar as they are relevant to our decision.

A. Jaquari's Death and the Initial Investigation

In May 2005, Harris, age 23, lived in an apartment on Chicago's west side with her

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boyfriend, Sta-Von Dancy, and their two sons, five-year-old Diante and four-year-old Jaquari. In the afternoon of Saturday, May 14, Harris and Dancy went to the laundromat across the street, leaving their sons home alone for approximately 40 minutes with instructions to stay in the apartment. While the clothes were drying, Harris returned home and discovered Diante in the hallway and Jaquari playing outside. Harris yelled at the children and ordered them to their bedroom, where Jaquari began crying. At this point, Dancy returned to the apartment, spoke to his children in their room, and lay down to take a nap.

When he awakened, Dancy discovered Jaquari lying on the floor of the boys' bedroom, unresponsive and blue in the face. An elastic band hanging from Diante's fitted sheet was wrapped repeatedly (close to ten times) around Jaquari's neck. Dancy unwrapped the band and performed mouth-to-mouth resuscitation. Jaquari remained unconscious. Dancy lifted him up and ran outside, where he met Harris returning again from the laundromat. The two jumped in their car and raced off in search of a hospital with Harris driving and Dancy continuing CPR on Jaquari in the back seat. They called 911 and eventually met an ambulance that took Jaquari to a hospital. Harris and Dancy returned home to retrieve Diante and then went to the hospital, where Jaquari was pronounced dead.

Chicago police officers arrived at the hospital to begin their investigation into Jaquari's death. After a brief conversation with detectives around 7:15 p.m., Harris and Dancy agreed to accompany them to the police station to answer further questions. Detectives interviewed the parents in separate rooms. With Diante on her lap, Harris answered questions for approximately 30 minutes before the detectives left to continue their investigation at the scene. Around midnight, Diante was taken to his grandmother's home by an official with the Department of Child and Family Services. Back at the family's apartment, officers ordered crime scene technicians to collect the sheet with the loose elastic band and a telephone cord they suspected might have been used to strangle Jaquari. After speaking with other tenants in the building, the detectives returned to the station to confront Harris with discrepancies between her earlier account and what they had learned from her neighbors, who said she had struck her children with a belt that day. According to the detectives, after approximately fifteen minutes of questioning, Harris broke down, started crying, and spontaneously admitted, " I wrapped the phone cord around Jaquari's neck and then I wrapped the elastic band from the bed sheet around his neck to make it look like an accident." Harris, 328 Ill.Dec. 567, 904 N.E.2d at 1080. That first confession was undisputedly false: the autopsy would later show that the telephone cord played no role in Jaquari's death.

The detectives read Harris her Miranda rights, which she said she understood. Over the next 24 hours, Harris recanted her initial unwarned confession, slept overnight in a holding cell, took a polygraph examination (with inconclusive results), and confessed a second time— this time saying she had used the elastic band, which conformed to the physical evidence. A prosecutor arrived and obtained a videotaped statement of Harris's confession. In it, Harris stated that she had struck Jaquari with a belt when she came over from the laundromat and that because he would not stop crying, she wrapped the sheet's elastic band around his neck until she saw blood coming from his nose. She said she then left the room, attempted to fix a phone jack, and returned to the laundromat

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to retrieve her clothing. She was charged with first-degree murder. Her trial began on October 20, 2005 in...

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