Kidd v. Lemke, 12–2614.
| Citation | 734 F.3d 696 |
| Decision Date | 01 November 2013 |
| Docket Number | No. 12–2614.,12–2614. |
| Parties | Leonard KIDD, Petitioner–Appellant, v. Michael LEMKE, Warden, Respondent–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
OPINION TEXT STARTS HERE
Eric Jonathan Allen, Attorney, Law Office of Eric J. Allen, Ltd, Columbus, OH, for Petitioner–Appellant.
Katherine D. Saunders, Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.
Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.
Leonard Kidd was convicted of ten counts of murder in 1987 and sentenced to death. On appeal, his conviction was reversed and the case was remanded for a new trial. At his new trial, Kidd waived the assistance of counsel and represented himself, despite the trial judge's repeated warnings and advice. Kidd was convicted again, and is currently serving a life sentence. He now petitions for a writ of habeas corpus, arguing that his Sixth Amendment rights were violated because his decision to represent himself was neither knowing nor voluntary. The district court denied Kidd's habeas petition, and we affirm.
On October 28, 1980, a fire broke out in a Chicago apartment building, killing ten children. Kidd became a suspect in 1984, following his arrest on unrelated charges.1 He was charged with arson and ten counts of murder, and his first trial was in 1987. Robert Strunck, a public defender, represented him. Kidd was convicted on all counts and sentenced to death. In 1992, the Illinois Supreme Court reversed his conviction due to trial errors and remanded for a new trial.
We now set out this case's procedural history at some length. Although we limited Kidd's current appeal to the voluntariness of his waiver, Kidd draws upon several of his earlier arguments, and earlier proceedings are relevant here.
After the remand, Kidd filed a pro se motion seeking appointment of counsel other than Strunck. At a July 1992 hearing, Kidd asked the court to appoint “Dan Webb or Jenner & Block” as his new attorney. When the court asked why, Kidd said that his was a capital case and that he would “prefer for one of them to represent me.” Strunck worked for the public defender's office and Kidd “would rather for anyone outside of the office to handle this case now.” The court told Kidd that it would not appoint Webb or Jenner & Block to represent him, as he had “very competent” counsel. Kidd responded that the public defender “did a well good job on this case,” but continued, “[a]ll I am saying is that I feel that it would be my best interest, I would feel more secure and comfortable, you know—I don't want to have to go back on death row.” The court told Kidd that Webb or Jenner & Block would have to represent him pro bono and then tabled the issue. Ultimately, Kidd was unable to find private counsel.
Kidd's case was set to go to trial in September 1994—more than two years after the remand. On August 23, 1994, Strunck told the court that Kidd wanted to proceed pro se. As the colloquy that followed is critical to our waiver analysis, we set it out at some length:
STRUNCK: Mr. Kidd has also informed me after a recent jail visit that it's his desire in this matter to go, pro se.
... Obviously, the relationship, I believe, goes back approximately 10 years.
Now, I have explained to him that absolutely, he has a right to go pro se. It is not—probably not in his best interest. That it goes without saying, that Leonard Kidd is not a licensed attorney, in the State of Illinois or any other state nor does he have any formal legal education, legal training nor has he tried any cases.
Basically, Judge, I have informed him that this is obviously not in his best interest to proceed, pro se. He wishes to address the Court on that issue.
Your Honor, obviously, he has a right to do as he pleases.
You know very well that you can receive the death penalty on this case. You were for 20 years in the Illinois Department of Corrections through natural life to the death penalty, and you would be called upon to make your own arguments, to make your own objections, gather your own legal written instructions at the end of the case, to introduce evidence.
You have, I think, a good idea from your trials, all that it takes to conduct a trial, to conduct a defense. And you would be called upon to do so.
But particularly in this case, which is not a simple case, requires presentation of a good cross examination, involves the death penalty, which calls all kinds of things that you know about since you went through this trial already.
I have real doubt whether you can do it yourself.
Kidd then asked for copies of “the transcript” and a court order for the law library. When the government discussed changes to its witness list, Kidd asked whether he needed to prepare a list as well. He told the court that he was definitely going to add witnesses. The court then gave the parties a deadline; Kidd said the date was “cutting it short” but he would try his best to meet it. When the court pointed out that it would be difficult for Kidd to meet deadlines while in custody, Kidd responded, “[b]ut sometimes you have no choice, when people sit right there on the stand and lie, too.”
The court followed up with Kidd's pro se request a week later, on August 31, 1994:
Secondly, you should also know that on the murder charges, the minimum is 20 years, and the maximum is the death penalty. You understand that that's the minimum and the maximum. 20 years is the minimum; the death penalty is the maximum.
If there's a penitentiary sentence, the sentences can run concurrent, together at the same time, or consecutive, one to follow the other.
You also must be informed, and I'm sure you already know, that you have a right to counsel, and if you are indigent, without money, counsel, Mr. Strunck, the public defender, will be appointed for you. Do you understand?
You're going to be responsible for cross-examining witnesses against you. You're going to be responsible for bringing in appropriate instructions that you might want, legal instructions. All the kinds of things you saw your lawyer do during the first trial, that's your responsibility.
You can't order Mr. Strunck to do this for you and then order him to sit down, and you'll carry on from there. You're responsible for your own defense. That means presenting evidence, it means cross-examining, it means introducing possibly exhibits into the case, it means having legal instructions at the end of the case. Do you understand that?
The court then allowed Kidd to proceed pro se, with Strunck as standby counsel. Kidd was again convicted of all charges. At Kidd's request, Strunck represented him during the penalty phase of his capital case.
During the penalty phase, the defense presented mitigation evidence. Dr. Linda Wetzel found that Kidd's 1993 IQ test score, 73, placed him in the borderline mentally retarded range according to one accepted classification scheme, and “at the high end of the mentally retarded range of intelligence” according to another. Moreover, Kidd had a seizure disorder and suffered from “impaired brain functions.” His memory and concentration were very poor; if sentences became too complex, Kidd needed repetition and for the speaker to slow down. However, she found that Kidd was “good at expressing himself.” Another defense expert, Dr. George Savarese, testified that Kidd had been diagnosed as mentally retarded three times during his youth (after IQ tests of 64, 67, and 63 in 1968, 1971, and 1976, respectively).
The parties also stipulated that the state's psychiatrist examined Kidd in 1985 and said he was malingering. Ultimately, Kidd was again sentenced to death. (In 2003, Illinois Governor George Ryan commuted all death sentences, Kidd's included, to life in prison without the possibility of parole.)
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