Habeas Corpus

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7^th Circuit Court of Appeals

Case Name: Scott E. Schmidt v. Brian Foster, Warden

Case No.: 17-1727

Officials: WOOD, Chief Judge, and FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, BARRETT, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Habeas Corpus

Scott Schmidt shot and killed his estranged wife. He confessed at the scene, but come trial he sought to mitigate his crime with the second‐degree defense of adequate provocation. The Wisconsin trial court, in deciding whether the defense should go to the jury, asked for an offer of proof and an evidentiary hearing. Schmidt complied with the first request but balked at the second, not wanting to show any more of his defense hand. That concern was well taken, and the trial court ordered an ex parte, in camera examination of Schmidt instead. The trial court added, however, that Schmidt’s lawyer could “not say[ ] anything” and would “just be present” for the examination.

The trial court questioned Schmidt in chambers. Schmidt’s lawyer observed silently. Schmidt rambled, interrupted only by a few open‐ended questions from the trial court and a brief break during which he reviewed his offer of proof with his lawyer. After the examination, the trial court ruled that Schmidt did not act with adequate provocation. He therefore could not raise the defense at trial. A jury later convicted Schmidt of first‐degree homicide, and he was sentenced to life in prison.

Schmidt petitioned for a writ of habeas corpus, arguing that the trial court’s in camera examination deprived him of counsel and due process. The district court denied Schmidt’s petition, and a divided panel of our court reversed and remanded with instructions to grant it. We vacated that decision, reheard the case en banc, and now affirm the district court’s judgment. The state trial court’s unusual examination of Schmidt was constitutionally dubious, and we discourage the measure. But our habeas review is limited. We ask whether the state court of appeals unreasonably applied clearly established Supreme Court precedent in rejecting Schmidt’s constitutional claims. We answer that it did not.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Derek oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.