In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4116
ALBERT J. PRICE,
Petitioner-Appellant,
v.
MICHAEL THURMER,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 C 849—Aaron E. Goodstein, Magistrate Judge.
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ARGUED NOVEMBER 7, 2007—DECIDED FEBRUARY 1, 2008
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Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Back in 1991 Albert Price was
driving his truck and struck a pedestrian and then
slammed into the back of another vehicle, causing a
four car pile-up. He leapt out of his truck swinging a
machete and injured three passersby before he was dis-
armed. He was convicted by a jury in a Wisconsin state
court of attempted murder and other crimes, and was
sentenced to 185 years in prison. The jury rejected his plea
of not guilty by reason of insanity, primarily it seems
on the basis of testimony by Dr. Vincent Giannattasio, a
psychiatrist called as a witness by the state. Two other
2 No. 06-4116
psychiatrists testified: Dr. Walter McDonald, Price’s ex-
pert, testified that Price was indeed insane; Dr. Robert
Drom, a court-appointed expert, was unable to form an
opinion about Price’s mental condition. The prosecution
did not tell Price’s lawyer (and apparently did not know)
that the federal government had indicted Giannattasio
for Medicare fraud. The indictment had been dismissed,
but the government’s appeal from the dismissal was
pending during Price’s trial. The dismissal was reversed
after the trial, United States v. Giannattasio, 979 F.2d
98 (7th Cir. 1992), but the government later dismissed
criminal charges against Giannattasio, instead success-
fully suing him in a civil case for fraud.
Price appealed his conviction to the Wisconsin court of
appeals, arguing that the failure of the prosecution to
disclose the indictment was a Brady violation. The court
disagreed. State v. Price, 2002 WL 563375, at *2 (Wis. App.
Apr. 17, 2002) (per curiam). It ruled that since under
Wisconsin’s law of evidence an indictment cannot be used
to impeach a witness’s credibility, State v. Reynolds, 137
N.W.2d 14, 20 (Wis. 1965); see also State v. Cathey, 145
N.W.2d 100, 105 (Wis. 1966); State v. Raether, 48 N.W.2d
483, 485 (Wis. 1951); compare Wis. Stat. § 906.09(1), the
information about Giannattasio’s indictment was immate-
rial. There is no obligation to turn over immaterial evidence
to a defendant, United States v. Rodríguez-Rivera, 473
F.3d 21, 26 (1st Cir. 2007); United States v. Jones, 399 F.3d
640, 648 (6th Cir. 2005), unless it is apparent that it might
lead to the discovery of material evidence. United States v.
Perez, 280 F.3d 318, 349 (3d Cir. 2002); Bradley v. Nagle, 212
F.3d 559, 567 (11th Cir. 2000); East v. Johnson, 123 F.3d 235,
238 (5th Cir. 1997). In the alternative, the court held that
any Brady error was harmless, because the Medicare fraud
No. 06-4116 3
was unrelated to Giannattasio’s testimony about Price’s
sanity and therefore could not have affected the jury’s
decision.
Before appealing his conviction, Price had initiated a
state postconviction proceeding complaining about the
effectiveness of his trial lawyer. After conducting an
evidentiary hearing, the trial judge rejected the complaint,
as did the Wisconsin court of appeals on Price’s appeal
from his conviction. Having exhausted his state rem-
edies, Price petitioned for federal habeas corpus; he was
denied relief, without a hearing.
He contends that his right to confront Dr. Giannattasio
was infringed because he could not tell the jury (not hav-
ing been informed by the prosecution) that Giannattasio
had been indicted for fraud. A jury might rationally
discount the testimony of a witness who had committed
a crime involving fraud. Fed. R. Evid. 609(a)(2); United
States v. Chevalier, 1 F.3d 581, 583-84 (7th Cir. 1993); United
States v. Mejia-Alarcon, 995 F.2d 982, 988-89 (10th Cir.
1993); see also State v. Gary M.B., 676 N.W.2d 475, 483 (Wis.
2004). But no more than Wisconsin evidence law do the
Federal Rules of Evidence permit impeachment by an
indictment, as distinct from a conviction, Fed. R. Evid. 609;
Michelson v. United States, 335 U.S. 469, 482 (1948);
United States v. Chance, 306 F.3d 356, 385 (6th Cir. 2002);
Dowthitt v. Johnson, 230 F.3d 733, 756 (5th Cir. 2000), and
we cannot believe that this limitation infringes the right
of confrontation.
Of course, under federal as under Wisconsin law,
“specific instances of the conduct of a witness, . . . in the
discretion of the court, if probative of truthfulness or
untruthfulness, can be inquired into on cross-examination”
concerning the witness’s “character for truthfulness or
4 No. 06-4116
untruthfulness,” Fed. R. Evid. 608(b); see Wis. Stat.
§ 906.08(2); see also Lindh v. Murphy, 124 F.3d 899, 901 (7th
Cir. 1997); United States v. Machado, 804 F.2d 1537, 1545
(11th Cir. 1986); United States v. Collins, 472 F.2d 1017, 1019
(5th Cir. 1972), though it cannot be proved by extrinsic
evidence. United States v. Dabney, 498 F.3d 455, 459 (7th
Cir. 2007); United States v. Thomas, 467 F.3d 49, 56 (1st
Cir. 2006); Wis. Stat. § 906.08(2); State v. Sonnenberg, 344
N.W.2d 95, 102-03 (Wis. 1984). So the trial court could
have allowed Price’s lawyer to ask Giannattasio whether
he had committed Medicare fraud (had the lawyer
known about the prosecution), though if as is quite proba-
ble Price had answered “no” the lawyer could not have
presented evidence to prove the fraud and the effort at
impeachment would have fizzled.
This suggests a basis for a finding of harmless error,
but one different from that of the Wisconsin court of
appeals. Evidence need not, as that court thought, be
“relevant” to any issue to be usable to impeach a witness;
all it need do is undermine his credibility, as is obvious
when a witness’s criminal record is used to impeach his
credibility under Fed. R. Evid. 609 in a case in which he
is not a party. Harmlessness aside, Price did not argue in
the Wisconsin court of appeals that he should have been
told about the indictment so that he could impeach
Giannattasio not with the indictment but with the alleged
Medicare fraud that had given rise to it. He argues the
point in this court, by a different lawyer, but it is too
late. See 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526
U.S. 838, 844-45 (1999); Simpson v. Battaglia, 458 F.3d
585, 593 (7th Cir. 2006).
Price had suggested another way in which he could
have used the pending federal charges to impeach Dr.
No. 06-4116 5
Giannattasio: by showing that Giannattasio had a motive
to testify favorably to the state in Price’s case because if
he did so the state prosecutors might put in a good word
for him with their federal counterparts. That’s quite a
stretch, but in any event the argument has been aban-
doned in this court. And since it seems that no one on
the prosecution team knew about Giannattasio’s indict-
ment; and it was a matter of public record readily accessi-
ble to Price’s lawyer, unlike the circumstances of Boss v.
Pierce, 263 F.3d 734, 744 (7th Cir. 2001); United States v.
Payne, 63 F.3d 1200, 1208-09 (2d Cir. 1995), and United
States v. Perdomo, 929 F.2d 967, 973 (3d Cir. 1991), the
prosecution had no obligation to disclose it to the defense.
United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002);
United States v. Young, 20 F.3d 758, 764 (7th Cir. 1994);
Matthews v. Ishee, 486 F.3d 883, 890-91 (6th Cir. 2007); United
States v. Infante, 404 F.3d 376, 386-87 (5th Cir. 2005); United
States v. Delgado, 350 F.3d 520, 527 (6th Cir. 2003).
As for ineffective assistance of counsel, Price complains
not about his trial lawyer’s failing to discover the indict-
ment of Giannattasio but about the lawyer’s waiving a
hearing on Price’s mental competence to stand trial and
withholding essential information from the court-ap-
pointed expert who testified about Price’s mental state
when he committed the crimes—Dr. Drom, the expert
who could not make up his mind about Price’s sanity.
Thus there are two issues relating to the lawyer’s han-
dling of the issue of Price’s sanity: whether Price was
mentally competent to stand trial and whether he had
been insane when he committed the crimes for which
he was being tried.
Price had a long history of mental disease, and had been
diagnosed as a paranoid schizophrenic; and his original
6 No. 06-4116
lawyer had succeeded in getting the judge to agree to
conduct a competency hearing. Wis. Stat. § 971.14(4)(b). But
his new lawyer (the one about whom he is complaining),
who had been appointed just minutes before the hear-
ing was scheduled to begin, asked for a 24-hour adjourn-
ment and when it was up told the judge that Price was
waiving the hearing. The Wisconsin court of appeals first
said that the lawyer had made this decision, State v. Price,
supra, at *1, but later said that it had been made jointly by
the lawyer and Price, id. at *8—which raises the question
whether the judge should have accepted the waiver
without first determining Price’s competence. The lawyer
did not recall having discussed competence with Price,
but he thought that probably he had and that in any
event “there wasn’t any doubt in my mind that Mr. Price
was competent, and he felt the same way.” Dr. Robert
Miller, whom the court had asked to report on Price’s
competence to stand trial, had reported that he was
competent, but Price’s lawyer had failed to give him all
the documents that the lawyer possessed concerning
Price’s mental history.
Concerning Price’s mental condition when he com-
mitted the crimes, his lawyer had amassed a number of
reports concerning the traffic accident and the mêlée
that had ensued, as well as medical records (including
the ones he had not shown Dr. Miller at the time of the
inquiry into Price’s competency to stand trial). He gave
some of this material to the court-appointed expert wit-
ness at trial, Dr. Drom, but not all. He especially neg-
lected to give Drom the reports of persons who had
observed Price in the days preceding the machete attack
and medical reports of Price’s previous bouts of mental
illness. He did give Drom an oral summary of the witness
No. 06-4116 7
reports, but Drom was unwilling to offer an opinion on
Price’s mental condition on the basis of those summaries.
At the state postconviction hearing, a new expert re-
tained by Price, Dr. John Marshall, examined the full
record and concluded that it was “not, in my opinion,
even a close call” that “Mr. Price suffered from a mental
disease at the time of the offense, and that the disease
caused him to not know right from wrong and to be unable
to conform his behavior to the requirements of the law.”
He opined that experts 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 on Price’s mental condition dur-
ing the attack.
Drom did not testify or provide an affidavit in the
postconviction proceeding, so we do not know whether
his opinion (or rather lack of opinion) concerning
Price’s sanity would have been altered had he seen the
additional reports. Apparently it was not Price’s fault
that Drom did not participate in the postconviction pro-
ceeding. Drom had retired and refused to testify. The
state does not argue that Price could or should have
compelled him to do so.
The Wisconsin court of appeals gave short shrift to the
ineffective-assistance issues, stating that “Price had not
demonstrated any signs or symptoms of any significant
mental disorder during his stay while being evaluated
for competence. Also, trial counsel informed Dr. Drom of
the pertinent eyewitness accounts of Price’s behavior
during the weekend before the crimes. Drom indicated at
trial that those accounts did not change his inability to
form an opinion since he could not determine the credibil-
ity of the behavioral observations. Giving Dr. Drom the
8 No. 06-4116
actual reports would not have changed his testimony
because he still could not assess the credibility of the
reported observations. Finally, the claim that trial coun-
sel 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 var-
ious people played a role in his determination that
Price was NGI. Repetition of this evidence was not neces-
sary.” There is no mention of the attempt by Price’s
lawyer to make his own competency determination, of
Dr. Marshall’s testimony, or of whether a lawyer’s pro-
viding an expert witness with an oral summary of re-
ports of fact witnesses is an adequate substitute for giv-
ing the reports to the expert to read for himself.
We cannot be certain that the lawyer’s handling of the
insanity aspects of the case was prejudicial to Price, as
we are well aware that insanity is not a defense to
which many jurors are sympathetic; we do not know
whether Dr. Drom’s testimony would have been altered
had he had the additional reports; and it is very difficult
to predict the outcome of a competency hearing that
was never held. We cannot conclude, therefore, that the
Wisconsin courts acted unreasonably in rejecting Price’s
claims of ineffective assistance of counsel. But there is so
much missing from the state appellate court’s evaluation
of the claims that we cannot determine the reasonableness
of that evaluation without asking the district court to take
evidence on the matter. When the merits of a petition for
habeas corpus cannot be determined from the record
compiled in the state court, through no fault of the peti-
No. 06-4116 9
tioner (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 find-
ings, here on whether Price’s defense was prejudiced by
the mistakes committed by his lawyer with regard to
insanity. E.g., Williams v. Taylor, 529 U.S. 420, 432 (2000);
Davis v. Lambert, 388 F.3d 1052, 1064-65, 1067 (7th Cir.
2004); United States ex rel. Hampton v. Liebach, 347 F.3d 219,
244-45 (7th Cir. 2003); Barkell v. Crouse, 468 F.3d 684, 697-99
(10th Cir. 2006); Hendricks v. Vasquez, 974 F.2d 1099, 1109-10
(9th Cir. 1992); Lawrence v. Armontrout, 900 F.2d 127, 131
(8th Cir. 1990).
The ruling relating to Dr. Giannattasio is affirmed, but
the judgment denying all relief is reversed and the case
is remanded to the district court for further proceedings
consistent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-1-08