In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3851
A LBERT J. P RICE,
Petitioner-Appellant,
v.
M ICHAEL T HURMER, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03-C-849—Aaron E. Goodstein, Magistrate Judge.
A RGUED S EPTEMBER 17, 2010—D ECIDED A PRIL 18, 2011
Before P OSNER, K ANNE, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. This habeas corpus case is
before us for the second time, after the remand for an
evidentiary hearing that we ordered in Price’s first ap-
peal. 514 F.3d 729 (7th Cir. 2008). The origin of the case
is a bizarre incident of mayhem in 1991. Price was
driving his truck and struck a pedestrian. He continued
driving, pursued by an off-duty police officer; slammed
into the rear of another vehicle, causing a four-car pile-up;
2 No. 09-3851
leapt out of his truck, swinging a machete; and injured
three passersby with it before he was disarmed. He was
growling and ranting, and when the police tried to
subdue him he exhibited extraordinary strength and
imperviousness to pain—he reacted neither to being
pinned by an automobile nor to being shocked by a
stun gun. Convicted by a jury in a Wisconsin state court
of attempted murder and related crimes arising from
the incident, he was sentenced to 185 years in prison.
His lawyer had asked the jury to find him not guilty
by reason of insanity, but the jury had refused.
Before appealing his conviction Price had initiated a
state postconviction proceeding, contending among
other things that his trial lawyer had been ineffective.
After an evidentiary hearing the trial judge had rejected
the complaint, as had the Wisconsin court of appeals,
State v. Price, 2002 WL 563375 (Wis. App. Apr. 17, 2002)
(per curiam), which heard his direct and postconviction
appeals simultaneously because his direct appeal had
been delayed for six years by his public defender’s pro-
crastination.
Having exhausted his state remedies, Price sought
federal habeas corpus, but struck out in the district
court. Our previous opinion affirmed the denial of relief
on most of the grounds urged by him, but ordered an
evidentiary hearing on his complaints about his lawyer’s
waiving a hearing on Price’s mental competence to
stand trial and failing to provide essential information
to the court-appointed psychiatric witness. The district
court conducted the hearing that we had directed, and
again denied relief, precipitating this second appeal.
No. 09-3851 3
We begin with Price’s competence to stand trial. He
had a long history of mental disease and had been diag-
nosed as a paranoid schizophrenic, and his behavior
during and immediately after the attack that led
to his prosecution and conviction was consistent with
insanity. His original lawyers had succeeded in getting
the judge to agree to conduct a competency hearing, but
they withdrew from the case at Price’s request before
the hearing was scheduled to take place. His new lawyer,
the one he’s complaining about, having been appointed
just minutes before the hearing was scheduled to begin,
asked for and was granted a 24-hour adjournment. The
lawyer met with Price for three and a half hours during
the adjournment, reviewed with him the court-ordered
competency report (prepared by a Dr. Robert Miller),
which had concluded that Price was competent to
stand trial, and later testified that “there wasn’t any
doubt in my mind that Mr. Price was competent, and
he [Price] felt the same way.”
The fact that a person suffers from a mental illness
does not mean that he’s incompetent to stand trial. He
need only be able to follow the proceedings and provide
the information that his lawyer needs in order to
conduct an adequate defense, and to participate in
certain critical decisions, such as whether to appeal. Drope
v. Missouri, 420 U.S. 162, 171-72 (1975); Dusky v. United
States, 362 U.S. 402 (1960) (per curiam); Woods v.
McBride, 430 F.3d 813, 817 (7th Cir. 2005). If he is
being treated successfully with antipsychotic drugs, as in
Wilson v. Gaetz, 608 F.3d 347, 349 (7th Cir. 2010), the fact
that he has a mental illness (of which the drugs treat
4 No. 09-3851
merely the symptoms) does not render him incompe-
tent to stand trial. It is the difference between having
asthma and having an asthmatic attack, or having
coronary artery disease and having a heart attack. When
the lawyer met and talked to Price, Price gave no signs
of being in a manic state, as he had been during and
right after his assaults with the machete. It’s unlikely
that Dr. Miller would have changed his mind about
Price’s competence to stand trial had the lawyer chal-
lenged his opinion.
At the oral argument of the present appeal Price’s
lawyer ingeniously focused on his client’s alleged
inability to recall the details of the machete attack. The
ingenuity lay in the fact that such amnesia would be
consistent with his being lucid during the trial, yet
might make it impossible for him to assist his counsel
meaningfully because he had forgotten the acts for
which he was being prosecuted. The problem with such
a contention is that the defendant who didn’t want to
be tried right away might plead amnesia—and if years
later he decided the time was now ripe for a trial because
acquittal had become more likely might announce he’d
regained his memory. There are tests for detecting false
claims of amnesia, but “there is still . . . no ‘gold standard’
measure for distinguishing between cases of genuine and
feigned amnesia.” Xue Sun et al., “Does Feigning Amnesia
Impair Subsequent Recall?,” 37 Memory & Cognition 81
(2009). False pleas of amnesia by criminal defendants
are both common and difficult to detect. Marko Jelicic,
Harald Merckelbach & Saskia van Bergen, “Symptom
No. 09-3851 5
Validity Testing of Feigned Amnesia for a Mock Crime,”
19 Archives of Clinical Neuropsychology 525 (2004).
We do not suggest that amnesia can never operate as a
defense to competence to stand trial. But something
more than the defendant’s word would have to be
shown, given the ease of making such a claim, the diffi-
culty of countering it, and hence the temptation to abuse
it. See United States v. Andrews, 469 F.3d 1113, 1118-19
(7th Cir. 2006); cf. United States v. No Runner, 590 F.3d
962, 965 and n. 2 (9th Cir. 2009); United States v. Villegas,
899 F.2d 1324, 1341 (2d Cir. 1990).
Consistent with our skepticism about a claim of
amnesia, Price’s lawyer testified that he had concluded on
the basis of his meeting with Price to discuss competence
to stand trial that Price “was able to help me.” Ability to
assist one’s lawyer is the test of competence to stand trial.
We move on to the issue of Price’s mental condition
during his bout of violence. The issue has narrowed to
whether the bout was a psychotic episode attributable
to his paranoid schizophrenia, or was caused by “acute
delirium” attributable to voluntary consumption of alco-
hol or mind-altering drugs. If the latter he would (with
exceptions not claimed to be applicable to this case) be
ineligible to be found not guilty by reason of insanity.
State v. Kolisnitschenko, 267 N.W.2d 321, 324 (Wis. 1978);
see Wis. Stat. § 939.42. And that is the only verdict Price
seeks; he doesn’t deny having mounted the machete
attack and that it was a criminal attack unless it was
caused by insanity.
6 No. 09-3851
Three medical experts testified at Price’s trial: one
chosen by the prosecution, who testified that the attack
had not been the result of mental illness; one chosen by
the defense, who testified that it had been; and the third,
Dr. Robert Drom, appointed by the trial court to be the
court’s own expert witness, who testified that he had
been unable to form an opinion though he thought that
Price’s symptoms were more like those of substance-
induced acute delirium than of mental illness.
Price argues that his trial lawyer provided ineffective
assistance by failing to show Drom certain evidence that
might have persuaded him to testify that Price had
been insane during his rampage. Wisconsin law permits
a jury to reject an insanity defense by a vote of ten to two.
Wis. Stat. § 971.165(2). Two jurors voted that Price was
insane, so he was only one vote away from a mistrial.
Price’s lawyer had obtained a number of police reports
concerning the traffic accident and its violent aftermath,
plus medical records documenting his client’s history of
mental illness before the attack, plus reports by private
investigators who had interviewed family members
and friends about his behavior before the attack.
Most of the interview reports elicited observations
made the morning of, or on the days before, the attack.
But some of the interviewees reported that Price had been
acting strangely for months; if true this would bolster
the inference that the attack was the product of mental
illness rather than of intoxication, which develops and
clears rapidly. The lawyer gave some of this material
to Dr. Drom but not all—not the reports by the lay ob-
No. 09-3851 7
servers, or the medical reports of Price’s history of
mental illness, or police reports of his continued crazy
behavior after the attack when the police were trying to
subdue him (and for two or three days afterward), or a
toxicology report based on blood drawn from him
after his arrest. Although the blood was tested too late
to negate the possibility that Price’s fit had been caused
by drunkenness or by sudden cessation of drinking, it
did negate the possibility that it had been caused by drugs
such as PCP, cocaine, or amphetamines, which can also
precipitate such behavior.
Drom had said in a letter to the trial judge that Price’s
violent outburst was “highly consistent with a substance
induced psychosis,” that “[Price’s] description of the
events and perceptions of the two days preceding [the
attack] are consistent with a[n] acute psychotic episode,”
that “clarity might be shed upon this issue” if “urine
samples [had] been taken for forensic purposes,” and that
“if reliable witnesses to [Price’s] behavior in the . . . 48
hours [preceding the attacks] were available who[]
might attest to his behavior, thought content, manner of
speech and/or possible ingestion of street drugs on a
voluntary or involuntary basis support for his claims of
mental defect might be obtained.” And in a conference
with Price’s lawyer Drom had said, according to the
lawyer’s notes, that the lawyer’s “description of events
[in the weeks preceding the attack] is consistent with
an ‘acute psychotic episode’ ” and that “corroboration,”
if forthcoming, would “show[] mental illness, and [that
Price was] probably not mentally responsible for [his]
actions.” The notes also state that in answer to the
8 No. 09-3851
question whether Price was psychotic, Drom had said
“Yes,” and in answer to the further question what the
source of the psychosis was had said “1) Drug induced.
2) Result of long-term alcoholism. 3) Possibly due to
paranoia.”
The lawyer gave Drom an oral summary of the private
investigators’ reports, which might have supplied the
fuller “description of events” that Drom was seeking. But
Drom testified at the trial that he was unwilling to offer
an opinion on Price’s mental condition “without first-
hand hearing or seeing transcription of those wit-
nesses.” He speculated that Price’s manic state might
have been “acute delirium” caused by consumption of
alcohol or drugs, though he did not exclude the possi-
bility that it had been attributable to mental illness. He
refused to offer any opinion about Price’s mental state
“to a degree of medical certainty.”
At the state postconviction hearing, a new expert re-
tained by the defense, Dr. John Marshall, testified that a
psychiatric expert witness who had not had access to
reports of the “observations of people close to [Price]
just prior to this incident” would have been “severely
handicapped” in rendering an opinion concerning Price’s
mental condition during the attack. Noting that eight
witnesses had observed Price’s deterioration over the
weeks and months prior to his explosion, Marshall con-
cluded that it was “not . . . even a close call” that the ex-
plosion was the “result of a mental illness.” Dr. Drom did
not testify or provide an affidavit in the postconviction
proceeding; he had retired. The trial judge, now presiding
No. 09-3851 9
over the postconviction proceeding, refused to reappoint
him as the court’s expert and Price did not subpoena
him to obtain his presence at the postconviction hearing,
as he could have done. Left unanswered—and now, as
we’ll see, unanswerable—was whether Drom’s opinion
(or rather lack of opinion) about Price’s sanity would
have been altered had he seen the reports of the observers.
The Wisconsin court of appeals analyzed the issue of
ineffective assistance as follows: “Price had not demon-
strated any signs or symptoms of any significant
mental disorder during his stay while being evaluated
for competency. Also, trial counsel informed Dr. Drom
of the pertinent eyewitness accounts of Price’s behavior
during the weekend before the crimes. Dr. Drom
indicated at trial that those accounts did not change his
inability to form an opinion since he could not determine
the credibility of the behavioral observations. Giving
Dr. Drom the actual reports would not have changed
his testimony because he still could not assess the cred-
ibility of the reported observations. Finally, the claim
that trial counsel should have presented evidence
found in the police reports during the NGI [not guilty
by reason of insanity] phase [of the trial] ignores the
fact that during the first portion of the trial, the jury
heard descriptions of Price’s conduct, statements and
behavior. Price’s own expert [Dr. McDonald] explained
how the observations of various people played a role
in his determination that Price was NGI. Repetition of
this evidence was not necessary.” State v. Price, supra,
2002 WL 563375, at *5. The opinion does not mention
Dr. Marshall’s testimony or discuss whether a lawyer’s
10 No. 09-3851
providing an expert witness with an oral summary of
reports of fact witnesses is an adequate substitute for
giving the reports to the expert to read for himself. The
lawyer testified that his failure to respond to Drom’s
request for the reports was an error rather than a ploy.
We concluded in our first opinion that there was so
much missing from the state appellate court’s evalua-
tion of the constitutional adequacy of Price’s lawyer
that we could not determine the reasonableness of that
evaluation without asking the district court to take evi-
dence on the matter. So we directed the district court
to conduct an evidentiary hearing, explaining (with
copious citations to the case law) that “when the
merits of a petition for habeas corpus cannot be deter-
mined from the record compiled in the state court,
through no fault of the petitioner (compare 28 U.S.C.
§ 2254(e)(2)), the district court is authorized, and may
be directed by the court of appeals, to conduct its own
hearing and make appropriate findings, here on
whether Price’s defense was prejudiced by the mistakes
committed by his lawyer with regard to insanity.” 514
F.3d at 733.
We had thought that when a petitioner who is
seeking relief under section 2254(d)(1) (that is, when he is
charging that the state court’s decision was contrary to,
or an unreasonable application of, clearly established
federal law as determined by the Supreme Court, in this
case the doctrine of ineffective assistance of counsel) is
unable to create a record adequate for determining the
merits of his claim, the district court can hold an eviden-
No. 09-3851 11
tiary hearing to complete the record. That was the situa-
tion alleged by Pinholster and found by the Ninth Circuit
in a decision recently reversed by the Supreme Court in
Cullen v. Pinholster, 2011 WL 1225705 (U.S. Apr. 4, 2011).
The Court ruled that with exceptions that were inap-
plicable to Pinholster’s case and are inapplicable to
Price’s as well, a district court may not take evidence in
a habeas corpus proceeding that is based on section
2254(d)(1): “evidence introduced in federal court has
no bearing on § 2254(d)(1) review. If a claim has been
adjudicated on the merits by a state court, a federal
habeas petitioner must overcome the limitation of
§2254(d)(1) on the record that was before that state
court.” 2011 WL 1225705, at *10. In light of that decision
we should not have ordered such a hearing insofar as
Price was seeking relief under section 2254(d)(1). (Price
argues that his claim of ineffective assistance of counsel
wasn’t adjudicated on the merits, but that is not correct.)
As for a claim under section 2254(d)(2), which provides
relief from a state court’s decision that “was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” the
statutory language appears to leave little or no room for
an evidentiary hearing in the district court, because
evidence presented in such a hearing would not alter
“the evidence presented in the state proceeding,”
although we cannot be certain of this because the rela-
tion between subsections (e) and (d)(2) has never been
authoritatively determined. See Wood v. Allen, 130 S. Ct.
841, 845 (2010); Rice v. Collins, 546 U.S. 333, 338-39 (2006);
Wiggins v. Smith, 539 U.S. 510, 528 (2003); Miller-El v.
12 No. 09-3851
Cockrell, 537 U.S. 322, 348 (2003). No matter; even
if we were right to order an evidentiary hearing,
Price cannot prevail. The evidence presented at the
hearing falls short of demonstrating a denial of effective
assistance of counsel.
Three witnesses, all presented by Price, testified at the
hearing: his trial lawyer, another lawyer (an expert
on effective representation in insanity cases), and a psy-
chologist. Drom did not testify; he had died. The district
court concluded that Price’s representation by his lawyer
at trial had indeed fallen below professional standards
but that the Wisconsin court had not been unreason-
able in concluding that Price’s defense had not been
prejudiced by the lawyer’s pratfall.
Prejudice is the only issue we need discuss; the state’s
contentions that the lawyer’s withholding of documents
from Dr. Drom was mere “inadvertence,” which did not
impugn the adequacy of his representation of Price, and
that Price’s lawyer had no duty to try to elicit a helpful
opinion from Drom because Drom was not a defense
witness, are unpersuasive.
Drom may not have realized that an expert witness
is allowed to base the opinion to which he testifies on any
materials on which he would base a diagnosis or other
determination in his ordinary professional work, whether
or not the testimony would be inadmissible if given by
a nonexpert witness. Fed. R. Evid. 703. “[A]n expert is
not limited to relying on admissible evidence in
forming his opinion. That would be a crippling limita-
tion because experts don’t characteristically base their
No. 09-3851 13
expert judgments on legally admissible evidence; the
rules of evidence are not intended for the guidance of
experts. Biologists do not study animal behavior by
placing animals under oath, and students of terrorism
do not arrive at their assessments solely or even
primarily by studying the records of judicial proceed-
ings.” Boim v. Holy Land Foundation for Relief & Develop-
ment, 549 F.3d 685, 704 (7th Cir. 2008) (en banc) (citations
omitted). Like other physicians, psychiatrists rely on
statements and reports without worrying about whether
they would be admissible in a trial. Price’s lawyer
should have pointed out to Drom that admissibility is
an issue for the judge, not for the expert witness, and
having done so should have shown Drom the witness
statements, some dozen in number, and pointed out that
they were consistent in their description of Price’s ab-
normal behavior in the days preceding the attack, of the
absence of indications of substance abuse during that
period, and of his having been acting strangely for
months—his personality had changed and he had seemed
paranoid, nervous, angry, intense, and strange. Drom
thought the psychotic episode substance-induced because
he understood it to have appeared out of nowhere and
cleared very rapidly, and the reports suggested otherwise.
It is true that Price had been drinking on the day of the
attack. There were empty bottles in his truck and he
admitted to one doctor that he had been drinking in the
days before the incident and he told the hospital that
he had been drinking for weeks and had a history of
alcohol withdrawal. But his lawyer failed to show Drom
14 No. 09-3851
the police report of Price’s continued crazy behavior
(including an attempt to eat his dreadlocks) for 41 hours
after his arrest—long after the alcohol would have left
his bloodstream—and the absence of typical symptoms
of delirium tremens (acute alcohol withdrawal).
Some of the witnesses to Price’s behavior in the days
before the attack testified at the trial, and their
testimony was consistent with the investigator’s reports
of what they had told him, and more detailed. There is
no indication that Drom attended any part of the trial,
however, though he may have—the record is a blank
on the question. But there is no contention that if Drom
did not attend, Price’s lawyer was culpable; Drom was
the court’s witness, not his.
A jury is likely to think the court’s expert witness the
most credible expert witness in the case. Had Drom
been convinced that Price had been exhibiting signs of
psychosis for a significant period before the attack
without consuming alcohol in excess or (other) mind-
altering drugs during that period, and had Drom been
given the medical records that substantiated Price’s long
history of paranoid schizophrenia and the toxicology
report which negated several possible explanations,
alternative to insanity, for the attack, he might have
agreed with Price’s medical expert that the attack had
been caused by insanity rather than by a binge. The
witness at the evidentiary hearing that we ordered who
was an expert on effective representation testified that
“it appears as though [Drom] was searching for some
corroborating information to establish that whatever
No. 09-3851 15
he found to be a deficiency in Mr. Price’s mental condi-
tion at the time of the offense . . . wasn’t a consequence of
drug abuse.” The documents that Price’s lawyer inex-
plicably failed to give him contained such information.
The district court made two key findings on prejudice.
The first was that “Dr. Drom was clear in his testimony
that he believed it was necessary for him to be able to
assess the credibility of the witness[es] in order to
place any reliance on the witness[es]’ recounting of
Price’s behavior. There is no evidence to indicate that
rolling back a layer of hearsay by permitting Dr. Drom
to review the actual reports rather than hearing [Price’s
lawyer’s] recounting of the content of those reports
would have changed Dr. Drom’s inability to make a
determination with the requisite degree of medical cer-
tainty. The reports of the private investigators and of the
police would still have been hearsay, and thus, in the
view of Dr. Drom, insufficient for his purposes.” The
second key finding was that “the toxicology report could
not indicate whether Price was under the influence of
alcohol at the time of the incident” and “would not
have affected Dr. Drom’s inability to reach a conclusion
as to Price’s status at the time of the incident.”
Nevertheless as an original matter we would be
inclined to rule that Price had been prejudiced by
his lawyer’s lapses. But the Wisconsin court of appeals
disagreed; and a state court’s determination that a defen-
dant was not prejudiced by his lawyer’s ineffectiveness
is entitled to great weight in a federal habeas corpus
proceeding, as emphasized with rather unexpected vigor
16 No. 09-3851
by the Supreme Court when it said recently that a state
prisoner can prevail in a federal habeas corpus pro-
ceeding only if “there is no possibility fairminded
jurists could disagree that the state court’s decision con-
flicts with this Court’s precedents . . . . [The] prisoner
must show that the state court’s ruling on the claim
being presented in federal court was so lacking in jus-
tification that there was an error well understood and
comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 131
S. Ct. 770, 786-87 (2011).
In light of the Harrington decision we must give short
shrift to Price’s complaint that the Wisconsin court of
appeals ignored a good deal of the evidence on which
his claim for relief was based, such as his early medical
records, the reports of treating physicians, and the
report of the toxicology test. Vague language in the
court’s opinion may cover some or even all of this evi-
dence; but of greater moment is the Supreme Court’s
ruling in Harrington that even a state court “opinion”
consisting of the single word “affirmed” is entitled to
the full deference that the habeas corpus statute
demands be given determinations by state courts. Id.
at 784-85. The Supreme Court’s ruling precludes our
inferring error from the Wisconsin court’s failure to
discuss particular pieces of evidence.
Nor did that court apply an incorrect standard for
determining prejudice, which would be grounds for
relief under section 2254(d)(1); see Williams v. Taylor, 529
U.S. 362, 405-06 (2000). The correct standard is that the
No. 09-3851 17
defendant must demonstrate a reasonable probability
that had it not been for his lawyer’s ineffectiveness the
outcome at trial would have been different. Strickland v.
Washington, 466 U.S. 668, 694 (1984); Johnson v. Thurmer, 624
F.3d 786, 791 (7th Cir. 2010); Stephenson v. Wilson, 619 F.3d
664, 671 (7th Cir. 2010). The Wisconsin court recited that
standard but later in its opinion muddied the waters by
stating that to prevail Price had to show that proper
representation “would have altered the outcome of the
case,” State v. Price, supra, 2002 WL 563375, at *5, quoting
State v. Leighton, 616 N.W.2d 126, 139 (Wis. App. 2000)—not
would have created a reasonable probability of altering the
outcome. But there is more to the quotation: “A defendant
who alleges a failure to investigate on the part of his or
her counsel must allege with specificity what the inves-
tigation would have revealed and how it would have
altered the outcome of the case.” State v. Price, supra, 2002
WL 563375, at *5. Whether that’s right or wrong (right,
if the word “probably” is understood before “would
have altered,” but we needn’t decide), it doesn’t bear on
the key determination in the court’s opinion regarding
prejudice. That is found in a passage we quoted earlier:
“trial counsel informed Dr. Drom of the pertinent eye-
witness accounts of Price’s behavior during the week-
end before the crimes. Dr. Drom indicated at trial that
those accounts did not change his inability to form an
opinion since he could not determine the credibility of
the behavioral observations. Giving Dr. Drom the actual
reports would not have changed his testimony because he
still could not assess the credibility of the reported observations.”
Id. (emphasis added).
18 No. 09-3851
Price argues that the Wisconsin court’s finding (culmi-
nating in the italicized passage just quoted) that he was not
prejudiced by the ineffective assistance of his counsel
was based on a determination of facts that was unrea-
sonable in light of the evidence presented to the state
court—the ground for relief in 28 U.S.C. § 2254(d)(2); see
Wood v. Allen, supra, 130 S. Ct. at 849; Taylor v. Maddox, 366
F.3d 992, 999-1001 (9th Cir. 2004). The unreasonable
determination alleged is that the reports that Dr. Drom
did not receive would not, had they been given to him,
have persuaded him that Price had been mentally ill
when he went on his rampage. The question is not
whether Drom wanted the reports; he did; but, to repeat
once again, the court determined that “giving Dr. Drom
the actual reports would not have changed his testimony
because he still could not assess the credibility of the
reported observations.”
Drom had testified that “without first-hand hearing or
seeing transcription of those witnesses, I don’t think
I could do it [that is, offer an opinion on insanity] to a
degree of medical certainty. If that testimony is available
and considered to be from reasonable and truthful witnesses
by the Court, I think I would have to leave that to the
Court. I cannot make that statement definitively.” The
critical passage is the one we’ve italicized. It’s not entirely
clear what Drom meant (and we shall never know for
certain), but it seems he wanted the judge to validate the
reliability of the witnesses’ testimony, which the judge
could not have done.
A further exchange at the trial reinforces this inter-
pretation:
No. 09-3851 19
Prosecutor: “Based upon the information that you
had, would you say that the defendant is still responsi-
ble for his actions?”
Drom: “Without more specific information from
the sources, I would have to say that he’s responsible,
because he’s not proven otherwise.” . . .
Judge to prosecutor: “Why don’t you ask him
simply does the additional information allow you
to come to some other conclusion?”
Prosecutor asks the question and Drom answers: “I am
having to rely on the vertical [veridical?] truthfulness
of that information to make such a statement.”
Prosecutor: “Do you have some hesitancy in relying
upon the credibility of that information based upon
the chain that it went through?”
Drom: “I think—I think that’s a court decision.”
Maybe at this juncture the judge should have recessed
the trial to allow defense counsel to explain to Drom
that an expert witness is not limited to basing his testi-
mony on facts verified by a judge. Or maybe defense
counsel should have explained that to Drom before the
trial. But it would be speculation to conclude that his
insistence on judicial validation of witnesses’ testimony
was based on a misunderstanding of the rules of evidence
rather than on his own professional standards, possibly
idiosyncratic. We cannot say that it was “unreasonable”
for the Wisconsin court to infer from the evidence pre-
sented to it that Drom would not have changed his testi-
mony had he read the reports, especially since the eye-
20 No. 09-3851
witnesses were all friends of Price and so might not seem
credible to Drom. We might disagree with the Wisconsin
court, but we would not have the strength of convic-
tion that would enable us to declare its conclusion unrea-
sonable. The evidence presented at the evidentiary
hearing in the district court—if as we greatly doubt we
are permitted to consider any of it—would not alter
our conclusion, notably because of Drom’s unavail-
ability to testify at that hearing. We note finally that
Price does not argue that the court’s selection and
handling of Drom as a court-appointed witness de-
prived Price of due process of law.
A FFIRMED.
4-18-11