In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2326

JOHNNIE BROWN,

Petitioner-Appellant,

v.

JERRY STERNES, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 5341—William T. Hart, Judge.

____________

ARGUED JANUARY 8, 2002—DECIDED SEPTEMBER 4, 2002

____________

Before POSNER, COFFEY and DIANE P. WOOD, Circuit

Judges.

COFFEY, Circuit Judge. This case is before us on a writ

of habeas corpus. In 1991, Petitioner-Appellant Johnnie

Brown (“Brown”) was arrested, and shortly thereafter

convicted after a bench trial of armed robbery and was

sentenced to the maximum term of 30 years imprisonment. After exhausting his appeals in the Illinois state

court system, Brown petitioned for relief in the federal

district court under 28 U.S.C. § 2254, alleging that he

had received ineffective assistance of counsel and arguing that his attorneys failed to bring his mental problems to the court’s attention and that the proceedings in

the state court infringed upon his constitutional right not
2 No. 01-2326

to be tried when mentally incompetent. The district court

dismissed Brown’s petition on April 19, 2001. Brown appeals. For the reasons we set forth, we conclude that Brown

was denied his Sixth Amendment right to effective assistance of counsel. We remand with instructions to grant

the writ of habeas corpus unless the State of Illinois

elects to retry Brown within a reasonable time to be determined by the federal district court.

This case exposes a tragic breakdown in the Cook County,

Illinois criminal justice system. A mentally ill criminal defendant of recent vintage was arrested, put on trial, convicted of armed robbery, and sentenced to a term of thirty

years without anyone taking proper notice of the fact

that this same defendant had been diagnosed on more

than one occasion, confined and treated (from 1986-88), and

medicated intermittently for chronic schizophrenia for an

extended period of years. His court-appointed attorneys

provided a halfhearted defense, neglecting to thoroughly

investigate his medical condition and failing to procure

medical records establishing that he suffered from a myriad of psychiatric problems. Thereafter, the attorneys proffered self-serving affidavits once their lackadaisical lawyering was revealed and challenged. Their less-thanlawyer-like attention to duty caused problems for the courtappointed psychologist and psychiatrist. These doctors,

relying on inadequate data, filed reports with the court

that could best be classified as incomplete, as they ignored essential documentation of his medical history (i.e.,

his past psychiatric records), a basic element and requirement of any competency evaluation, and furthermore overlooked important information easily ascertainable from

the defendant’s family members. The state probation officer,

in preparing the pre-sentence investigative report, neglected to interview the defendant’s family members, to

make a thorough inquiry about Brown’s prior confinement, (i.e., his adjustment to his institution), to investi-
No. 01-2326 3

1 Schizophrenia is a “common type of psychosis, characterized

by abnormalities in perception, content of thought, and thought

processes (hallucinations and delusions) and by extensive withdrawal of interest from other people and the outside world, with

excessive focusing on one’s own mental life.” Stedman’s Medical

Dictionary 1601 (27th ed. 2000).

gate the circumstances surrounding his general discharge

from the Navy, or his mental health history. Thus, the

sentencing judge was less than well-informed of critical

information, including the defendant’s long and welldocumented history of mental illness, as well as his prolonged period of treatment and confinement in a psychiatric

unit during his prior imprisonment.

I. FACTUAL BACKGROUND

A. Brown’s Medical History

Brown’s medical records reflect that he was initially

diagnosed to be suffering from chronic schizophrenia1

in 1986 while incarcerated in the Menard Correctional

Facility in southern Illinois. During his period of confinement, Brown was found to be unable to function in the

minimum security unit of the facility because he was

mentally incapable of following the orders of the security

personnel and counselors, which in turn necessitated his

transfer to the prison’s psychiatric unit. Brown’s treating psychiatrist at Menard, Dr. Vallabhaneni, noted in

his reports throughout 1986 that Brown had “no ability

to communicate” and had admitted to hearing voices

that “help him to do his time.” Dr. Vallabhaneni diagnosed him as suffering from chronic schizophrenia and

prescribed various anti-psychotic medications for Brown

on a regular basis and continued to treat his mental illness until his release in 1988. During the defendant’s

period of treatment, Dr. Vallabhaneni noted on at least
4 No. 01-2326

four occasions in 1986 and 1987 that Brown was “probably

hallucinating,” and that Brown was not only uncooperative, but demonstrated little or no insight into the existence of his psychiatric problems and frequently refused

to take his prescribed medication. Throughout this period Brown insisted that he was not mentally ill and

spoke very little about his mental condition with Dr.

Vallabhaneni. After nearly two years of confinement and

treatment, Dr. Vallabhaneni noted on May 1, 1988 that

Brown’s psychiatric problems are “in a chronic state and

he is not making any progress or worsening either.”

In 1989, after Brown’s release from prison, he applied

for Social Security disability benefits. As part of his application for benefits, Dr. Mark Amdur, a consulting

psychiatrist for the Social Security Administration, evaluated Brown and once more diagnosed him as suffering

from chronic schizophrenia. Dr. Amdur observed and diagnosed the following symptoms: impaired concentration

and attention, stilted speech with moderately severe

irrelevancy and illogicality, loosened associations, and

auditory hallucinations. Additionally, Dr. Amdur interviewed Brown’s mother, who is a nurse, about his mental state, and she advised the doctor that his “mind is

random” and that he makes sense one minute and then

“goes into autistic position and talks to himself.” Brown’s

mother also reported that he told her that he heard

voices. Unfortunately, not one of these records referred

to above was reviewed by the court-appointed mental

health doctors who examined Brown, much less introduced into evidence by Brown’s attorneys at his state criminal trial.

B. Brown’s Arrest

The police report and the trial testimony from the victim and the defendant outline essentially similar conduct
No. 01-2326 5

2 The defendant, Johnnie Brown, and the victim, James Brown,

are not related.

on the part of the defendant at the time of the crime.

At about 12:45 a.m. on March 26, 1991, roughly an hour

before the armed robbery occurred, the defendant and

the victim, James Brown,2

 engaged in a brief conversation about a cigarette. About an hour later, the defendant

encountered the victim a second time. According to the

victim, the defendant grabbed him from behind, held a

pearl-handled knife to his throat, and demanded “everything [he] had,” which amounted to fifty cents and an

adult bookstore token. The defendant, however, testified

that he was in fear for he believed the victim was following him and that he thought the victim was going to attack him. The defendant said he grabbed the victim,

“showed him” the knife, demanded to know why the victim was following him, and only then did he ask the victim for money. Brown was apprehended a few minutes

later, and the police recovered a pearl-handled knife, some

change, and an adult bookstore token.

C. Brown’s Pre-Trial Proceedings

On April 17, 1991, Asst. Public Defender Camille Kozlowski was appointed to represent Brown. Six months later,

on October 28, 1991, on what was to have been the date

of Brown’s criminal trial, Kozlowski asked the court for

a continuance in order that she might arrange for Brown

to be evaluated both for “mental competency” and for

“sanity.” When the judge asked why she had waited until

the day of trial to raise this issue, Kozlowski replied

that just that morning, Brown had informed her that

Professor Thomas Geraghty, director of the Northwestern

University Law Center, had previously represented

Brown. Kozlowski telephoned Geraghty, who advised her
6 No. 01-2326

that Brown had once been found “unfit for trial” and that

while incarcerated at Menard he had received “large doses”

of “psychotropic” medication.

The trial judge, reluctant to grant the continuance

on such short notice, was eventually persuaded by an

insistent Ms. Kozlowski. She stated that after first meeting Brown, she realized that there was “something different” about him. She complained to the judge of her

“difficulties” communicating with Brown, that he did “not

answer some of my questions,” and that he “yelled at

my law clerk.” She also told the judge that this new information about Brown’s mental issues “certainly answers some of the questions that I had.” The rest of her onthe-record statements bear quoting at length, especially

in light of her later prevarications:

Your honor, if there is an issue of fitness or sanity,

I believe justice is not going to be served unless we

have that answer, an answer to that. I would apologize to the Court for any inconvenience, but this is a

serious case as it is a Class X case; Mr. Brown is

looking at six to thirty years in the penitentiary. And

I think it’s very important that we look into these

issues. I am not doing this at the last minute to avoid

trial, obviously, your Honor, I would only do it because this man, who is the legal assistant dean at

Northwestern indicated that he—Mr. Brown—has

some serious background, psychiatric background.

Kozlowski concluded her supplication by notifying the

judge that she had just begun to attempt to secure Brown’s

“records from the Psychiatric Institute” at Menard, that

the authorities there stated “they are looking for them,”

and that she “just need[ed] to examine those records.”

The judge granted the motion and set a status hearing

for November 25, 1991, after a Behavioral Clinic fitness

and sanity evaluation (BCX) could be performed. The rec-
No. 01-2326 7

3 Whereas it is clear that individuals with chronic schizophrenia

often do not fully recover normal functioning and typically require

long-term treatment, generally including medication, to control

the symptoms, conducting an examination without the benefit

of Brown’s records is problematic, to say the least.

ord reflects that Kozlowski subpoenaed Brown’s medical

records from the Illinois State Penitentiary on November 1,

1991.

D. Brown’s Mental Health Examinations

On November 19 and 21, 1991, doctors from the Cook

County Circuit Court’s Psychiatric Institute, at the direction of the criminal court, interviewed and examined

Brown to determine his fitness for trial, sanity, and ability

to understand his constitutional rights. These examinations

were conducted without the benefit of Brown’s history

of mental illness, treatment, and confinement in the Menard

psychiatric unit.3

 His mental history had not been forwarded to the court. Despite her stated belief that there

was “certainly an issue of sanity” and her prior request

to the trial judge, Brown’s court-appointed attorney Kozlowski not only failed to follow up on her subpoena, but also

failed to advise the court-appointed doctors (Psychiatric

Institute) that she had been informed that Brown had a

recent history of treatment for mental illness and of his

confinement in the psychiatric unit at Menard.

The record reflects that during Brown’s initial competency

exam on November 19, he personally made the courtappointed psychologist, Dr. Rabin, aware of the fact that

he had a history of prior psychiatric problems and treatment. Brown informed Dr. Rabin that he suffered from

multiple hallucinations (“auditory, visual, olfactory, and

tactile”), had been placed in a “special unit” at Menard, and

was prescribed the anti-psychotic medication thiothixene
8 No. 01-2326

4 It is well established that persons suffering from schizophrenia

behave differently at different times and experience psychotic

episodes that come and go. See National Institutes of Health,

Schizophrenia, at http://www.nimh.nih.gov/publicat/schizoph.htm.

5 “A well-established history of disorder before the relevant

criminal behavior is also useful in helping to rule out malingering

[pretending to be ill], although it is not unheard of for even

genuinely disordered persons to recall their symptoms at will if it

appears to be in their interests to do so.” Robert D. Miller &

Edward J. Germain, The Retrospective Evaluation of Competency

to Stand Trial, 11 Int’l J.L. & Psychiatry 113, 122 (1994).

(“Navane”) for some two years while in confinement. Dr.

Rabin’s report is summary in nature, evidenced by the

fact that he made but a most modest effort to test the

credibility of Brown’s assertions concerning his mental

health history, his ingestion of prescribed anti-psychotic

medication, and his confinement in a psychiatric unit

at Menard. Furthermore, he made no effort to locate

Brown’s medical records to ascertain the veracity of

Brown’s claims. On the contrary, Dr. Rabin’s written report simply reflects his summary dismissal of Brown’s

statements concerning his illness, and an acknowledgment that Brown “dropped his allegations of multiple

hallucinations” after he had “confronted and pushed”

Brown.4

 Dr. Rabin’s conclusion that Brown was fabricating his history of mental illness (referring to him as “malinger[ing] in a half-hearted way”), is a particularly dubious judgment when the subject has just recently been

diagnosed as a chronic schizophrenic.5

Two days later, on November 21, 1991, Dr. Gerson

Kaplan, a psychiatrist at the Psychiatric Institute, met

with Brown to evaluate his fitness to stand trial. Prior

to interviewing Brown, Dr. Kaplan reviewed the arrest

report as well as Dr. Rabin’s report. Even though Dr.

Rabin’s notes reflected that Rabin had discussed Brown’s

prior psychiatric treatment and confinement at Menard
No. 01-2326 9

with him, Dr. Kaplan also failed to conduct an adequate

investigation into the possibility that Brown had in fact

been diagnosed as suffering from chronic schizophrenia

and had received treatment, including medication, for his

mental illness. Dr. Kaplan’s report briefly discussed Brown’s

claims of a previous history of psychiatric problems:

Defendant states his only psychiatric history was in

1988, when he was stabbed while he was at Menard

and he said at that point, he was placed on psychiatric

medication, he is vague as to the reasons for this or

what the medication was. . . . Defendant denies any

other psychiatric history other then [sic] the above

mentioned history from Menard.

The record reflects that Dr. Kaplan, even though aware

of Brown’s claim to have been confined in the Menard

psychiatric unit, offered no explanation for his failure to

attempt to get information from either Kozlowski or from

Menard about Brown’s stated psychiatric problems in

testing Brown’s history of past recollection for accuracy

and truthfulness. In spite of the absence of information

concerning Brown’s case history, Dr. Kaplan concluded

that the defendant was “mentally fit for trial” as of November 21, 1991, and furthermore went on to find that he

was legally sane at the time of the commission of the

offense charged, and submitted this recommendation to the

court.

E. Brown’s Status Hearing

Brown appeared in court for a status hearing on November 25, 1991. On the basis of Dr. Kaplan’s medical

report, the trial judge concluded that Brown was fit to

stand trial. Kozlowski, in spite of her wealth of knowledge

about her client to the contrary, failed to object or question

Kaplan’s competency recommendation in any manner,

much less the court’s finding that Brown was mentally

competent to proceed to trial. She also neglected to make
10 No. 01-2326

the court aware that the prison authorities at Menard

had not yet complied with the subpoena for the records.

Kozlowski’s less than vigorous approach in advocating

her client’s interests came in spite of several important

facts: (1) she had been informed by Geraghty, the Northwestern University Law School professor, that Brown

had previously been prescribed and received anti-psychotic

medication; (2) she had also been informed by Geraghty

that Brown had previously been found unfit to stand trial;

(3) she had been having difficulty communicating with

Brown and had as well advised the court of the episode

when he yelled at her law clerk; (4) she had earlier expressed to the trial judge that there was “certainly an issue

of sanity”; and (5) she had subpoenaed, but never received (and neglected to continue her investigation into

the failure to produce) Brown’s medical records from

Menard.

Not surprisingly, as a result of the inadequate work

products of the public defenders and the court-appointed

doctors, the court found Brown competent to stand trial

and set the date for his criminal proceeding in January

1992.

F. Brown’s Trial

On January 30, 1992, the day of the defendant’s trial

before Judge Morissey in the Cook County Circuit Court,

Kozlowski was ill. At trial he was represented by a substitute public defender, Lafonzo Palmer, who met Brown

for the first time that morning. Kozlowski neglected to

inform Palmer of Brown’s questionable conduct with her

and her law clerk as well as the fact that she had been

informed that Brown had suffered recently from mental

problems, that he had been confined in a psychiatric unit

while receiving treatment at Menard, and furthermore

that she had as of that date been unable to obtain

Brown’s medical records. As a result of these problems in
No. 01-2326 11

the Cook County, Illinois justice system and state prison system, attorney Palmer conducted Brown’s defense

totally unaware of the fact that Brown had been previously diagnosed as suffering from chronic schizophrenia and

had been treated for the same. The only knowledge that

Palmer had regarding Brown’s mental condition was the

November 21, 1991, report in Brown’s file from Dr. Kaplan

stating that Brown was competent to stand trial and

was also sane at the time of the offense.

Brown waived his right to a jury trial and entered a

plea of not guilty, although the transcript of Brown’s

colloquy with the judge reveals Brown’s confused responses to the judge’s questions about the waiver of his

constitutional rights. A 30-minute bench trial ensued,

during which time only three witnesses (the victim, the

arresting officer, and Brown) testified. During Brown’s

short time on the witness stand, the judge’s own frustration with Brown is evident, as the judge had to instruct

Brown repeatedly to speak so that he could be understood.

The essence of Brown’s testimony was (like his statement to the police) that he believed the victim was following him, that he was going to attack him, and that his use

of the knife was designed to scare the victim away.

Shortly after the defense rested, the judge mentioned

that he thought he had observed Brown laughing at an

inappropriate time during the trial and asked Brown if

“there was something funny?” At that point, Brown engaged in an outburst of random obscenities and insults

directed at the court as follows:

MR. BROWN: F*** you, Jack. Hear what I am saying?

THE COURT: Take it easy, Mr. Brown.

MR. PALMER: Be quiet, Johnnie.

MR. BROWN: I am grown. I am locked up, mother

f***er. That is my mother f***ing ass.
12 No. 01-2326

MR. PALMER: I know that, Johnnie. I know. I know.

I know.

MR. BROWN: You are a lying mother f***er.

MR. PALMER: Just relax. It is okay.

MR. BROWN: Can I go to the washroom?

THE COURT: We are waiting on opening argument.

MR. PALMER: Just a second. You can go to the washroom. Tell the Judge you are sorry.

MR. BROWN: Excuse me.

After the oral exchange between the defendant, the

court, and the defense attorney, Brown’s attorney waived

closing argument and the trial judge proceeded to find

Brown guilty of armed robbery. His counsel, Palmer, at

this time moved for a psychiatric examination prior to

sentencing in light of Brown’s in-court, uncontrolled and

irrational outburst at the conclusion of the trial. The trial

judge took the motion under advisement but never ruled

on it, for reasons unexplained.

G. Brown’s Sentencing Hearing

At the February 25, 1992, sentencing hearing, Brown

was again represented by Palmer. Since nearly a month

had passed, Palmer certainly had the opportunity to

acquaint himself with Brown’s file, which included a copy

of the Menard subpoena Kozlowski had served. Though

Menard had still not complied with the subpoena for

Brown’s medical records, and even though his client

was being sentenced without the benefit of these critically

important documents, Palmer failed to make even a cursory inquiry into the reasons Kozlowski had sought the

records, much less into the reasons why the prison had

failed to produce them. Even though Palmer had ob-
No. 01-2326 13

served Brown’s erratic behavior and outburst at trial, and

in spite of the fact that he knew or should have known

about Kozlowski’s subpoena and Menard’s inaction on

that subpoena, Palmer failed to request an adjournment

of the sentencing to allow him more time to produce these

records.

The sentencing was also affected by the incomplete

and inaccurate pre-sentence report that had been filed with

the court. The investigating officer who authored the report, Sunsaray Hodges, failed to collect information about

and report on Brown’s family history, psychiatric history

and illness, prior psychiatric treatment and confinement, the circumstances surrounding his general discharge

from the Navy, and his conduct while in prison. Thus,

because of this inaccurate report, the judge was still

unaware at the time of sentencing that Brown had been

diagnosed as suffering from chronic schizophrenia.

As this court has stated before (though in a slightly

different context), a sentencing judge’s inquiry is broad in

scope, “largely unlimited either as to the kind of information he may consider, or the source from which it may

come.” United States v. Gerstein, 104 F.3d 973, 978 (7th Cir.

1997) (quotation omitted). The reasoning for this is plain:

The sentencing stage of a trial is one of the most

important parts of the criminal process. In order for

a judge to be well advised of the facts surrounding

the defendant’s background, and particularly in view

of the judge’s obligation to the general public, as well

as to the defendant, to be fair, reasonable, and just,

it is imperative that he be allowed to draw upon a

wealth of information concerning the defendant’s

background, from his date of birth up to and including the moment of sentencing. . . . In order to render

justice to all the judge must be able to impress upon a

defendant through the expansive contents of an all
14 No. 01-2326

encompassing sentencing report that we are a country

of laws and not men.

Id.

During the sentencing hearing, Palmer asked the trial

judge to consider Brown’s strange behavior at trial as a

mitigating factor in the severity of his sentence:

I understand there was a psychiatric evaluation in

this case. I understand he did come back fit; however

your Honor did see his demeanor throughout the trial,

and I’d ask your Honor to take that into consideration,

that although he did come back legally fit, you saw

everything that occurred in the court, Judge. And I’d

ask your Honor not to ignore that. This is a man who

does have problems. This is a man who is not an

extremely—a violent person. This is not a person who

on his own volition is a violent person. We would ask

the court to take all of that into consideration in sentencing him, and we would ask for leniency in the

sentence.

The trial court responded that “certainly some psychological observation of [Brown] is in order,” but in spite of

this comment reflecting his awareness of the problem

and in spite of the request for a psychiatric exam (on which

the court failed to act), the judge went on to conclude

that Brown was fully responsible for his own actions at

the time of the offense and went on to describe him as a

“pathetic individual” who “could have overcome” his “pathos” “a long time ago” if he had “made some effort” to do

so. The judge found him guilty, and in sentencing him

to the maximum term for armed robbery, 30 years, stated

that Brown had “virtually no hope for rehabilitation.”

H. Post-Conviction Proceedings

The Illinois Appellate Court affirmed Brown’s conviction and sentence on direct appeal. Thereafter Brown
No. 01-2326 15

6 The record is silent as to how the Northwestern Legal Clinic’s

attorneys were able to obtain Brown’s psychiatric records from

Menard, while Kozlowski was not. The record does reveal that

Kozlowski’s subpoena was served on the prison authorities by

mail on November 1, 1991 by the Cook County clerk.

filed a pro se petition for post-conviction relief in the

state court, alleging without any evidentiary support that

his prison sentence violated several unidentified constitutional rights. The state trial judge summarily dismissed

the petition as frivolous and legally insufficient.

Brown appealed the dismissal of the petition, and the

Illinois Court of Appeals appointed the Cook County public defender to represent Brown. Shortly after the appointment, Brown’s public defender filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551

(1987), on the ground that Brown’s pro se petition failed to

allege facts sufficient to give rise “to a deprivation of

constitutional rights.” The motion to withdraw was granted,

and his representation was transferred to and assumed by

attorneys from the Northwestern University Legal Clinic.

At this point, Brown’s fortunes began to improve. New

counsel immediately moved the appellate court for leave

to amend the pro se petition and to supplement the trial

record with Brown’s Menard mental health records (mental history referred to above) as well as the records from

the Social Security Administration.6

 The Illinois Court

of Appeals denied the motion to supplement the record

and amend the petition, affirming the dismissal of

Brown’s pro se petition for post-conviction relief. At the

same time, however, the state appellate court noted, in light

of the medical evidence submitted on Brown’s behalf in

counsel’s motion to amend the petition for post-conviction relief, that fundamental fairness would require that

Brown be given the opportunity to file a second postconviction petition at the trial court level.
16 No. 01-2326

Brown followed the direction of the Illinois Appellate

Court and returned to the trial court, filing a second postconviction petition seeking relief on the grounds that his

trial counsel was ineffective for failing to make a professional, lawyer-like effort to ascertain whether the defendant had a history of mental illness after counsel had been

so advised. Furthermore, Brown argued that his trial

counsel (Palmer) had been ineffective in failing to challenge the doctor’s conclusion that Brown was fit to stand

trial and that he was sane at the time of the offense. In

addition, Brown argued that his due process rights were

violated when he was forced to go to trial while mentally

incompetent.

In support of Brown’s petition for post-conviction relief, Brown’s new attorneys retained Dr. Keenan Ferrell,

a clinical psychologist, to examine and evaluate Brown

in order to ascertain if Brown was suffering from a mental illness and, if so, the nature thereof. Dr. Ferrell examined Brown on December 3, 1995, and as part of this examination reviewed the records of Brown’s conviction, his

mental health records (from Menard as well as the evaluation conducted by the Social Security Administration)

and in addition interviewed Brown’s mother and older

brother. Dr. Ferrell’s report states in pertinent part as

follows:

The irrational, child-like, immature manner in which

Mr. Brown executed his recent crime demonstrates

a lack of logical, cohesive thinking processes . . . .

Mr. Brown’s execution of his crime indicates a combination of the various components of his disturbed

thoughts. First, he felt he was under attack, secondly,

he perceived himself as a criminal, and thirdly, he felt

a sense of urgency to simply get the incident over with.

Mr. Brown has prominent paranoia and at that time

he believed that he was about to be attacked, as he

reported during his trial.

* * *
No. 01-2326 17

Mr. Brown admitted to having previously been on

prescription medication. Currently he has been off

this medication for so long that he is not responsible

or rational enough to make appropriate decisions.

Therefore, all decisions Mr. Brown made while off

his medication should indeed be viewed as the decisions of an irresponsible, unreasonable, and illogical

man . . . . [I]t is felt that Mr. Brown has the diagnosis of

Schizophrenia, Residual Type.

* * *

Personality data and clinical interview indicated that

Mr. Brown has chronic, significant mental health problems which hinder his daily functioning. He tends to

be extremely withdrawn, he continually fears that others

are out to hurt him, and he was with [sic] poor insight

into his emotional problems. Mr. Brown’s thoughts are

dominated by a severely disturbing, chronic mental

illness known as schizophrenia. It is this examiner’s

opinion that this disorder has interfered with Mr.

Brown’s thought processes for the majority of his life,

apparently since adolescence. Therefore, his past criminal acts were clearly committed while under the

thought-distorting effects of schizophrenia.

The state opposed Brown’s petition for relief and, in spite

of the record to the contrary, saw fit to argue that Brown’s

attorneys had no reason to suspect Brown was schizophrenic. The state somehow steadfastly adhered to its

belief in the accuracy of Dr. Kaplan’s findings pronouncing Brown competent to stand trial as well as sane at the

time of the offense. In support of its argument, the state

presented affidavits from public defenders Kozlowski and

Palmer. In her post hoc, self-serving affidavit, Kozlowski

provides blanket and general statements that Brown “[a]t

all times . . . was lucid and coherent . . . and did not

demonstrate delusional behavior” and further that she
18 No. 01-2326

had no indication that “he did not understand the proceedings against him or could not cooperate with counsel.”

To describe Kozlowski’s sworn affidavit as “not worthy

of credence” is to put it mildly. She made all of the assertions as to his competency in her post hoc affidavit in spite

of the record, which so eloquently sets forth her personal

knowledge of Brown’s mental history, her experience with

her client, and her previous in-court, on-the-record vigorous

plea for a mental examination of her client. Furthermore,

Kozlowski’s affidavit fails to offer an explanation, much less

a reason, as to why she abandoned any further effort to

investigate Brown’s mental condition, or to follow up on the

subpoena she had requested for her client’s psychiatric

records. Finally, Kozlowski’s affidavit, in which she claims

she believed that “[a]t all times [Brown] was lucid and

coherent,” is most inconsistent with her earlier representation to the trial judge that there “certainly [was] an issue

of sanity,” not to mention her request for a continuance

in order to investigate Brown’s medical history.

Palmer’s affidavit is as defensive and as incomplete

as Kozlowski’s. He avers, for example, that during his

conversation with Brown the morning of trial, Brown was

both “lucid and coherent” and was able to assist in the

preparation of a defense. But then Palmer fails to make any

explanation of why he moved for a psychiatric evaluation

shortly after the completion of the trial and before sentencing, when he had observed firsthand Brown’s uncontrolled

and irrational outburst during the court proceeding as

described herein. Furthermore, he also fails to elucidate

in his affidavit why he never renewed this motion for a

psychiatric evaluation nor did he request that the court rule

upon his pending motion before sentencing.

With this new material in front of him, the state trial

court judge thus had a second chance at the bat to rule

on Brown’s fitness. Despite having the benefit of the
No. 01-2326 19

mountain of evidence (including the missing psychiatric

reports from Menard (1986-88) as well as Dr. Ferrell’s 1996

report and finding of schizophrenia) submitted by the

Northwestern University attorneys in support of Brown’s

petition, the judge dismissed the second petition for postconviction relief without even so much as holding an

evidentiary hearing. The trial court ruled and stated that

although Brown did exhibit some bizarre behavior during the trial proceedings, the state court proceedings “did

not amount to a substantial denial of Mr. Brown’s constitutional rights” (ineffective assistance of counsel).

Brown then appealed—for a third time—to the Illinois

Appellate Court, which affirmed the state trial court’s

dismissal, holding that there was “no compelling basis or

reason for counsel to further investigate defendant’s mental

condition,” despite the fact that the record reflects that

he was confined in the Menard psychiatric unit while

being treated for chronic schizophrenia from 1986 to 1988.

The state appellate court somehow reasoned that Brown’s

trial attorneys had no reason to pursue an investigation

of Brown’s mental condition, evidently believing the assertions that Kozlowski and Palmer had made in their

affidavits; to wit, that they had not been informed of the

specific nature and diagnosis of his problem and because

he was “lucid and coherent” on the particular days during which their representation brought them in contact

with him.

The reasoning and comments of the state appellate court

can best be described as alarming, confusing, and most

surprising, particularly as the court never saw fit to deal

with the newly presented evidence through the valiant

efforts (once again) of the Northwestern University Law

Center attorneys detailing his prior and well-documented

psychiatric history and confinement. Neither did the

court see fit to analyze the problem of the lack of diligence and attention on the part of Brown’s attorneys
20 No. 01-2326

7 The long-term prognosis of schizophrenia varies. “In general,

one-third of [persons with schizophrenia] achieve significant and

lasting improvement, one-third achieve some improvement with

intermittent relapses and residual disability, and one-third

experience severe and permanent incapacity.” The Merck Manual

of Medical Information 437 (Robert Berkow, M.D., ed., 1997).

(Kozlowski and Palmer) in failing to gain access to his

past psychiatric problems. We are at a loss to understand

the court’s conclusion—that there was “no evidence that

if Dr. Kaplan had reviewed [Brown’s Menard] medical

records, he would have altered his fitness finding”—if only

because of the contrary findings of two different psychiatrists (Dr. Vallabhaneni from Menard and Dr. Amdur

consulting for the Social Security Administration), both

of whom conducted independent evaluations of Brown and

both of whom emphatically concluded at the time of their

respective evaluations that Brown was suffering from

chronic schizophrenia.

7

 Similarly, we have great difficulty

in accepting and can neither comprehend nor concur in the

court’s contention that Brown’s complete medical history

(including Dr. Ferrell’s report) would have failed to support

an insanity defense or persuade the trial judge to impose a

shorter prison sentence. The Illinois Appellate Court rejected Brown’s due process claim, once more without giving us the benefit of an analysis of the problem created

by Brown’s attorneys’ lack of diligence in gaining custody of his documented history of chronic schizophrenia

(Menard). The court simply stated that the quantum of

evidence submitted was insufficient to conclude that he

was unfit to stand trial. The Illinois Supreme Court denied

leave to appeal.

After being spun around in the Illinois state court system for three years, Brown (and his Northwestern University Law Center attorneys) then wisely turned to the

federal courts for relief, filing a petition under 28 U.S.C.
No. 01-2326 21

§ 2254 in the Northern District of Illinois, arguing that:

(1) he was denied his Sixth Amendment right to effective

assistance of counsel by his attorneys’ failure to adequately investigate his mental health dealing with the question

of his fitness to stand trial, his sanity at the time of the

offense, and as a mitigating factor in his sentencing; and

(2) his Fourteenth Amendment due process rights were

violated because he went to trial when he was mentally

unfit. The district court held that the Illinois Court of

Appeals reasonably decided these issues against Brown

and denied the petition. Brown appeals.

II. ISSUES

Brown initially argues in his habeas appeal that his trial

attorneys were ineffective for at least two reasons: (1)

their lack of diligence in investigating his history of mental

illness even after they had been made aware of it; and

(2) their failure to bring his history of mental illness to the

state trial court’s attention. Brown alleges that his counsel

failed to unearth several important facts crucial to his

defense; namely, that he had in recent vintage been diagnosed twice as suffering from chronic schizophrenia, that

he had in fact been prescribed anti-psychotic medication

for this illness, and that he had been treated and confined

in the psychiatric unit at Menard from 1986 to 1988.

Brown argues that his trial attorneys’ failure to act diligently prejudiced him because it precluded him from:

(1) receiving a proper competency hearing; (2) raising an

insanity defense; and (3) arguing that he should receive

a more lenient sentence in light of his mental illness.

Brown also claims that he was denied his Fourteenth

Amendment due process right because he was tried and

convicted when he was mentally incompetent to stand trial.
22 No. 01-2326

III. ANALYSIS

A. Standard of Review

Under the Anti-Terrorism and Effective Death Penalty

Act (AEDPA), a state prisoner who files for a writ of habeas corpus must establish that the state court proceedings:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S.

362, 412 (2000); Ellsworth v. Levenhagen, 248 F.3d 634,

638 (7th Cir. 2001). A state court’s decision is “contrary to”

clearly established federal law “if the state court applies

a rule that contradicts the governing law set forth” by the

Supreme Court or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme]

Court and nevertheless arrives at a result different from

[Supreme Court] precedent.” Williams, 529 U.S. at 405-06.

With respect to the “unreasonable application” prong, the

petitioner must demonstrate that the state court identified the correct governing legal rule but unreasonably

applied it to the facts of the case. Id. at 407; Matheney v.

Anderson, 253 F.3d 1025, 1041 (7th Cir. 2001); Washington

v. Smith, 219 F.3d 620, 628 (7th Cir. 2000).

Although state court legal conclusions, as well as mixed

questions of law and fact, are before us under the de novo

standard, that standard is also tempered by AEDPA’s

deferential constraints: the “criterion for assessing the

reasonableness of a state court’s application of Supreme

Court case law, pursuant to § 2254(d)(1), is whether the

determination is at least minimally consistent with the
No. 01-2326 23

facts and circumstances of the case.” Sanchez v. Gilmore,

189 F.3d 619, 623 (7th Cir. 1999) (quoting Sweeney v. Parke,

113 F.3d 716, 718 (7th Cir. 1997)). We can only conclude that the state court’s conclusions were not even

“minimally consistent” with the facts of this case, as we

have described at length above.

B. Ineffective Assistance of Counsel

In order to establish a claim for ineffective assistance

of counsel, a petitioner must demonstrate that: (1) his

attorney’s performance fell below an objective standard of

reasonableness; and (2) the attorney’s deficient performance actually prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the

“prejudice” prong of the Strickland test, the petitioner must

demonstrate that there is a reasonable probability that,

but for counsel’s error, the result of the proceeding would

have been different. Id. at 694. A reasonable probability is

a “probability sufficient to undermine confidence in the

outcome.” Id.

1. The Objective Reasonableness of Counsels’ Actions

Attorneys have a professional obligation to conduct

“reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691 (emphasis added). The duty to

investigate derives from counsel’s basic function, which is

“ ‘to make the adversarial testing process work in the

particular case.’ ” Kimmelman v. Morrison, 477 U.S. 365,

384 (1986) (quoting Strickland, 466 U.S. at 690). “Because

that testing process generally will not function properly unless defense counsel has done some investigation into the prosecution’s case and into various defense

strategies, [the Supreme Court has] noted that ‘counsel has
24 No. 01-2326

a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations

unnecessary.’ ” Id. (quoting Strickland, 466 U.S. at 691).

“Review of the first prong [of the Strickland test] contemplates deference to strategic decision making . . . .”

Williams v. Washington, 59 F.3d 673, 679 (7th Cir. 1995)

(emphasis added). Ordinarily when an attorney articulates some strategic reason for a decision, we will defer

to that choice. Strickland, 466 U.S. at 690-91; Stewart v.

Gramley, 74 F.3d 132, 135 (7th Cir. 1996); Montgomery v.

Petersen, 846 F.2d 407, 413 (7th Cir. 1988). At the same

time, we realize that it is not the role of a reviewing

court to engage in a post hoc rationalization for an attorney’s actions by “construct[ing] strategic defenses that

counsel does not offer” or engage in Monday morning

quarterbacking. Harris v. Reed, 894 F.2d 871, 878 (7th

Cir. 1990).

It is often times a reasonable exercise of professional

judgment to limit or terminate further investigation when

counsel determines that a particular investigation would

be fruitless. See Hall v. Washington, 106 F.3d 742, 749

(7th Cir. 1997). On the other hand, where “it will be

apparent from the evidence concerning the circumstances of the crime, from conversation with the defendant, or from other sources of information not requiring

fresh investigation, that the defendant has some mental

or other condition that will repay further investigation . . .

then the failure to investigate will be ineffective assistance.” Stewart, 74 F.3d at 135; accord Brewer v. Aiken,

935 F.2d 850, 857-58 (7th Cir. 1991). “This does not mean

that only a scorch-the-earth strategy will suffice, but it

does mean that the attorney must look into readily available sources of evidence.” Hall, 106 F.3d at 749 (emphasis

added). In our assessment of counsel’s actions, we evaluate counsel’s conduct from the perspective at the time

the decision was made to forgo the investigation. See

Williams, 59 F.3d at 680.
No. 01-2326 25

“Where the record establishes that counsel had reason to

know, from an objective standpoint, that a possible defense, such as insanity, was available, failure to investigate

fully can constitute ineffective assistance of counsel.” Jones

v. Page, 76 F.3d 831, 841 (7th Cir. 1996) (quotation omitted)

(emphasis added). Further, we have previously held that

it may constitute ineffective assistance if, without a legitimate explanation, counsel fails to pursue a competency

hearing when counsel has a reasonable belief as to the

client’s competence to stand trial, especially when that

attorney initially acts upon that belief by requesting an

investigation into the client’s mental health. Matheney, 253

F.3d at 1040.

The Illinois Appellate Court, in its August 31, 1999 order affirming the trial court’s dismissal of Brown’s second post-conviction petition, somehow, someway characterizes Kozlowski’s and Palmer’s lack of action in obtaining Brown’s medical records as a conscious, tactical stratagem that an investigation of his past history of psychiatric

problems would not be beneficial to his defense or of use

at sentencing. The court surmises that Kozlowski’s and

Palmer’s performances were objectively reasonable because,

under the circumstances, “there was no compelling basis

or reason for counsel to further investigate defendant’s

mental condition,” despite these facts: (1) Kozlowski had

been informed that Brown had received treatment for mental illness while he was at Menard; (2) Kozlowski had told

the court there was “certainly an issue of sanity” in Brown’s

case and that she had “questions” about Brown’s competency

because of the difficulty she had communicating with him

and because of the incident in which Brown had yelled

at her law clerk; (3) Kozlowski knew she had not received

Brown’s mental health records that she had requested from

Menard; (4) Palmer, Brown’s other public defender, had

observed first-hand Brown’s uncontrolled and irrational

outburst at trial; (5) Palmer had moved for a psychiatric
26 No. 01-2326

evaluation shortly after the trial’s completion; and (6)

Palmer knew or should have known that Brown’s record

reflected his two-year confinement in the Menard psychiatric unit while being treated for chronic schizophrenia.

The Illinois Appellate Court pointed to several factors

to support its ruling: (1) Kozlowski’s statement in her

affidavit that Brown had been cooperative, coherent, and

not delusional in his dealings with her; (2) Kozlowski was

unaware of “the specific nature of any problem” with

Brown’s mental health; (3) there was “no evidence” that

Brown had experienced mental problems since his release from prison; and (4) Palmer had averred that

Brown was “lucid and coherent at all times” [sic]. In

reasoning that there was nothing to alert Kozlowski or

Palmer to Brown’s mental illness, the Illinois court makes

no mention of the following incontrovertible facts:

(1) Kozlowski had been specifically informed by another attorney who had formerly represented Brown

(i.e., Geraghty) that Brown had been diagnosed as suffering from a mental illness (chronic schizophrenia);

(2) Kozlowski had been informed by this same attorney that Brown had once been found “unfit for trial”

and that Brown had been taking “large doses” of antipsychotic medication to treat his chronic schizophrenia;

(3) Kozlowski had informed the trial court of her own

perception, based on her own “difficulties” she had

communicating with Brown and that he had “yelled

at [her] law clerk,” that she had realized that there was

“something different” about Brown and that there was

“certainly an issue of sanity” in Brown’s case;

(4) Kozlowski had secured a court order for Brown’s

medical records from the psychiatric unit at Menard

but had failed to follow up on this subpoena and discover the reason it had not been complied with;
No. 01-2326 27

(5) Palmer witnessed Brown’s bizarre and uncontrolled

outburst at trial, and thought enough of it to raise it

as an issue before the judge at sentencing; and

(6) Palmer either knew or should have known about

Menard’s inaction on the subpoena from Kozlowski, his

colleague and fellow public defender.

Based on the record before us, we are convinced that

the Illinois Appellate Court’s application of Strickland to

the facts of Brown’s case was not only unreasonable, but

also inaccurate. Indeed, the Illinois court’s conclusion is

not only incompatible with the record before us, but a

reasonable reading of the transcript reveals that precisely the opposite is true. The record is replete with facts

that establish that Brown’s counsel made a strategic decision to initiate an investigation into Brown’s psychiatric

condition: (1) Kozlowski represented and emphasized to

the trial court that “there was certainly an issue of sanity”;

(2) she was informed by Brown’s former counsel (a Northwestern University Law School faculty member) that he

not only had a history of psychiatric problems and treatment, but had once been found unfit to stand trial; (3) she

had difficulty communicating with Brown during the pretrial period; (4) she requested a continuance, on the morning Brown’s trial was scheduled to commence, so that she

could investigate Brown’s psychiatric history; and (5) she

subpoenaed Brown’s prison medical records and thereafter received a court order to compel the production of

Brown’s psychiatric records. The Illinois Appellate Court

for some reason saw fit neither to give us the benefit of

its reasoning or to refer to the unfortunate case history

discussed above in its conclusion that Kozlowski made a

strategic decision that an investigation into Brown’s mental health would be fruitless.

Attorneys have an obligation to explore all readily available sources of evidence that might benefit their clients.
28 No. 01-2326

Hall, 106 F.3d at 749. In the case at hand, both Kozlowski and Palmer had “readily available sources” of information (e.g., Brown’s medical records) that would have established that Brown had been, on two separate occasions,

previously diagnosed as suffering from a serious psychiatric illness, chronic schizophrenia, that caused him to

hallucinate and suffer from delusions of paranoia. We have

held in the past that where a defense attorney has received information from a reliable source that his client

has had a history of psychiatric problems, but failed to

adequately investigate this history, counsel failed to provide effective assistance. Brewer v. Aiken, 935 F.2d 850, 857-

58 (7th Cir. 1991); Eddmonds v. Peters, 93 F.3d 1307, 1325-

26 (7th Cir. 1996) (Flaum, J. concurring). At least six of

our sister circuits have arrived at the same conclusion.

See Seidel v. Merkle, 146 F.3d 750, 755-56 (9th Cir. 1998);

Williamson v. Ward, 110 F.3d 1508, 1517-18 (10th Cir.

1997); Antwine v. Delo, 54 F.3d 1357, 1367-68 (8th Cir.

1995); Genius v. Pepe, 50 F.3d 60, 61 (1st Cir. 1995);

Bouchillon v. Collins, 907 F.2d 589, 597-98 (5th Cir. 1990);

Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989);

Hooper v. Garraghty, 845 F.2d 471, 474-75 (4th Cir. 1988);

Profitt v. Waldron, 831 F.2d 1245, 1248-49 (5th Cir. 1987).

We are convinced that it was abundantly clear from the

evidence in the record and available to Brown’s attorneys

at the time of trial that Brown had more than a mere

exposure to mental health professionals, but rather had

a prolonged and documented history of severe mental

illness, even to the point of necessitating confinement

from 1986 through 1988. Thus, they had a professional obligation to do an in-depth investigation into their client’s

deep-seated psychiatric problems. Even though they

might not have known the precise nature or clinical diagnosis of Brown’s illness, both of Brown’s public defenders

certainly had a legal and an ethical obligation to explore

and investigate completely the nature and extent of his
No. 01-2326 29

illness, not to mention the reasons why the prison had

failed to send Brown’s medical records. It is clear that

at least Kozlowski had actual, and not simply constructive, notice—from more than one source—of the possibility

that Brown had been suffering from psychiatric illness

both from her interaction with him as well as the information she gained from her conversation with Geraghty.

Indeed, Kozlowski informed the court that she had difficulty communicating with her client and that her own

law clerk had been “yell[ed] at” by Brown. Based on the

totality of her knowledge of Brown’s mental condition,

Kozlowski represented to the state trial court that she

believed Brown’s mental condition was a serious enough

issue that she certified to the court in her statement that

there was “certainly an issue of sanity.” In addition, she

explicitly expressed concern to the trial judge that Brown

may have been “off his medication . . . at the time the

[robbery] occurred.” Finally, as we have made abundantly clear in Part I, ante, Kozlowski believed Brown’s mental condition to be of sufficient importance and of such

severity that she saw fit to place her credibility on the line

with the state trial court by requesting (and receiving)

a continuance for further investigation on the morning

the case was originally set for trial. Similarly, Palmer

believed Brown’s mental condition was enough of an

issue to raise it, albeit halfheartedly, before the sentencing judge.

Despite these legitimate concerns, neither Kozlowski nor

Palmer saw fit to speak to Brown’s family about his past

history (of possible crimes, mental illness, or educational

background, for instance), much less conduct a further

investigation that would certainly be considered reasonable under the circumstances. Brown’s attorneys requested by subpoena his medical records from Menard

and thereafter proceeded to trial without this information nor inquiring why Menard had not complied with the
30 No. 01-2326

court’s order. Kozlowski’s affidavit offers no explanation

as to why, after expressing her sincere concern about

her client’s condition in open court regarding his sanity to

the trial judge and subpoenaing his medical records, she

proceeded to abandon her interest in the medical records.

The Illinois Appellate Court, in an attempt to justify

Kozlowski’s inaction, points to her affidavit that stated

that she believed Brown “at all times . . . was lucid and

coherent.” Kozlowski’s self-serving affidavit, submitted

long after the trial and after Brown had subsequently

filed numerous challenges to his conviction alleging that

her representation was ineffective and therefore a violation of his constitutional rights, is not worthy of any credence because it is contradicted by the record detailing her

on the record statements and lack of action during her

inadequate representation of the defendant. For example,

Kozlowski’s unconvincing statement that Brown was “at all

times . . . lucid and coherent” fails to shed any light upon the question of why she failed to follow through with

the investigation she launched to a conclusion. Furthermore, she fails to explain why she went so far as to represent to the trial judge that she had trouble communicating with him and stated that he had yelled at her law

clerk. If we are to put credence in Kozlowski’s affidavit

that she truly believed Brown was “at all times . . . lucid

and coherent,” why did she urge the court to delay the

trial in order that she might obtain his medical records

so that she could address the “certain[ ] . . . issue of sanity”?

In its attempt to justify Palmer’s inaction, the Illinois

Appellate Court actually attributes Kozlowski’s statement

to Palmer. In the order dated August 31, 1999, affirming

the trial court’s dismissal of Brown’s amended post-conviction petition, the court wrote that Palmer swore in his

affidavit that Brown was “lucid and coherent at all times.”

Palmer was considerably more circumspect in his affidavit,

stating only that Brown was “lucid and coherent at all
No. 01-2326 31

times during my conversations with him.” We cannot

support the conclusion of the Illinois Court of Appeals—

on the critical issue of what Brown’s attorneys knew about

his mental state and when they knew it—as it is based

on faulty information, provided by Brown’s own public defender lawyers.

Based on the record before us, we are compelled to

conclude that counsel’s performance in the case before us

was deficient. Kozlowski had knowledge from a very reliable source—a Northwestern Law School professor who

had previously represented Brown—that her client had

received treatment for a mental illness, including large

doses of anti-psychotic medication. Counsel also had reason to believe that based on a comparison of the victim’s

and the defendant’s versions of events (in the police statements at trial) that he might have suffered from paranoia and hallucinations at the time of the crime from

his recounting of the episode. Finally as was made clear

in Part I, ante, both Kozlowski and Palmer represented

to the judge that they believed that insanity was a potential defense or mitigating factor.

Despite these concerns, counsel inexplicably abandoned

their investigation and failed to articulate any strategic reason for the abandonment of the investigation into

Brown’s mental history. There is no evidence in the record that either public defender subsequently spoke with

Brown’s family members (about his mental health history or education) or his treating or examining doctors.

We conclude that this failure to investigate adequately

and discover Brown’s documented history of schizophrenia

and treatment fell below an objectively reasonable standard of performance. Indeed, Kozlowski’s abandonment

of her client’s interest was exemplified by her failure to:

(1) follow through on the investigation that she initiated;

(2) provide her replacement counsel with even the barest

of details regarding Brown’s mental condition; or (3) en-
32 No. 01-2326

ter a defense of not guilty by reason of insanity. Similarly,

Palmer’s failure to demand action on the subpoena and

to renew his request for a second psychiatric examination after Brown’s courtroom outburst certainly fell below an objectively reasonable standard of performance.

Kozlowski’s and Palmer’s lack of diligence more than

demonstrates that Brown was not represented in a professionally competent manner. We hold that the Illinois

Appellate Court’s contrary conclusion is an unusual and

an unreasonable application of Strickland to the facts of

this case.

2. Prejudice

Having found that the performance of Brown’s counsel

was deficient, we turn now to whether Brown was prejudiced by the error. In order to establish that he was prejudiced by counsel’s failure to investigate his mental condition, Brown must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

Brown’s argument is that the failure of his trial counsel to supply the court and court-appointed psychiatrists

with available documentation of his psychiatric illness

prejudiced his defense by providing the trial judge with

less than reliable information, thereby contributing to

the trial judge’s rendering a finding of law based on inaccurate conclusions regarding his competency and sanity.

We are at a loss to understand the Illinois Court of Appeals’ stated reasoning that “[e]ven if defense counsel had

obtained the prison records, it does not appear there is a

reasonable probability the result of the proceedings would

have been different . . . [because] [t]here is . . . no evidence

that if Dr. Kaplan had reviewed the records, he would

have altered his fitness finding” (emphasis supplied). We
No. 01-2326 33

are well aware that a person suffering from chronic schizophrenia may have certain periods of lucidity and thus

appear perfectly normal at one moment while suffering

from delusions of paranoia or hallucinating at another.

Indeed, it is the imprecise and imperfect nature of the

science known as psychiatry that makes a review of the

past available psychiatric records an essential part of an

evaluation of a defendant’s competency to stand trial. See,

e.g., Randy Borum & Thomas Grisso, Establishing Standards for Criminal Forensic Reports: An Empirical Analysis, 24 Bull. Am. Acad. Psychiatric & L. 297 (1996) (psychiatric history is an “essential” element in a competency

evaluation); Daniel W. Shuman, Psychiatric & Psychological Evidence § 11.08 (2d ed. 2001) (sources of information to consider include other psychiatrists or psychologists who have diagnosed or treated the defendant, the

defendant’s family and friends, etc.); Kirk Heilbrun, et al.,

The Use of Third-Party Information in Forensic Assessments: A Two State Comparison, 22 Bull. Am. Acad.

Psychiatry & L. 399 (1994) (the person’s mental health history is among the most important sources of third-party

information in forensic assessments). The Illinois appeals

court, however, failed to explain adequately the basis of

its reasoning. We think it is obvious that a psychiatrist’s

diagnosis, especially when dealing with a chronic schizophrenic, must necessarily rely heavily on the patient’s

past psychiatric history, family history, criminal activity,

and medical records. See, e.g., Drope v. Missouri, 420 U.S.

162, 180 (1975); Parkus v. Delo, 33 F.3d 933 (8th Cir. 1994).

The Illinois Appellate Court’s analysis is summary in

nature, in that it fails to provide sufficient explanation for

its conclusion, and we are convinced that the Illinois

court’s cursory dismissal of Brown’s argument is a most

unfortunate and an unreasonable application of the Strickland prejudice standard. Dr. Kaplan based his opinions

on but one single interview with Brown, his review of
34 No. 01-2326

Dr. Rabin’s similarly inadequate report, and his review of

the police report documenting Brown’s arrest. Neither Dr.

Kaplan nor Dr. Rabin saw fit to interview and have the

benefit of the observations of Brown’s family members

(unlike Dr. Ferrell), let alone the unequivocal opinions of

two psychiatrists, one of whom had treated Brown for a

period of nearly two years, that Brown had been diagnosed with chronic schizophrenia and suffered from symptoms that included auditory hallucinations and paranoia.

We are convinced that the glaring absence of even a

minimal investigation into Brown’s medical history clearly affected the validity and thus the utility of the findings

of the Psychiatric Institute doctors. The doctors there

failed to investigate Brown’s assertions of claims of mental

illness in order to be able to corroborate them or cast them

aside. Though his case history was lacking, the examinations submitted to the court mistakenly suggest that Brown

was someone who made a fictitious claim of suffering

from mental illness, when in fact Brown had a long-standing, well-documented history of suffering from chronic

schizophrenia. These conclusions are unsubstantiated, unaccompanied as they were by the readily available documentation of Brown’s psychiatric history. Certainly a prudent psychiatrist, in the proper exercise of his professional

obligations to conduct a thorough mental exam, would

have obtained and reviewed the opinions of the two

other examining psychiatrists who had evaluated Brown,

and perhaps at least spoken with Brown’s family members (as did Dr. Ferrell) to evaluate whether he had a

history of acting out. It is reasonable to assume that Dr.

Vallabhaneni’s diagnosis of Brown as suffering from chronic schizophrenia, including symptoms of paranoia and

hallucinations, would have shed light upon the bizarre

set of facts surrounding the crime (in which Brown believed he was being followed by the victim and was about

to be assaulted by him) and thus affected Dr. Kaplan’s
No. 01-2326 35

diagnosis. Dr. Vallabhaneni’s diagnosis would certainly

have helped to explain Brown’s conduct and demeanor

with his counsel Kozlowski, Palmer, and the court itself.

In short, we are convinced that Dr. Kaplan’s lack of information concerning Brown’s medical history renders his

opinions on Brown’s competency and sanity useless and

unreliable.

Similarly, because of the failure of attorneys Kozlowski

and Palmer to discover and to bring Brown’s mental

problems and medical history to the court’s attention, his

trial and sentencing hearing were conducted without

the benefit of the knowledge of the severity of his mental

condition. See Drope, 420 U.S. at 176-77. In the case before us, the trial judge’s comments during sentencing reveal the prejudice that flowed from Brown’s attorneys’

failure to provide the court with evidence of his schizophrenic history and the incomplete report provided by

the probation officer. The trial judge went so far as to

describe Brown as a “pathetic individual,” who “could have

overcome” his “pathos” “a long time ago” if he had “made

some effort” to do so. The judge further stated that Brown

had “virtually no hope for rehabilitation,” and sentenced

him to the maximum term of imprisonment permitted under Illinois law (30 years).

We disagree with the Illinois Appellate Court’s conclusion that Brown suffered no prejudice from counsel’s error, for we are of the opinion that the prejudice is clear

and readily apparent. Because of Brown’s attorneys’ failure to present evidence of his mental condition, the court

admitted, without even a whisper of an objection from

counsel, the finding of Dr. Kaplan that Brown was competent to stand trial and sane at the time he committed

the crime. It should be pointed out that Brown’s trial

attorney (Palmer) had ample opportunity to make a record of insisting upon a competency hearing had he presented evidence (as the attorneys from the Northwestern
36 No. 01-2326

8 Rule 1.3 of the Illinois Rules of Professional Conduct requires

lawyers to “act with reasonable diligence and promptness in representing a client.”

Legal Clinic have properly seen fit to do) that Brown had

in the past suffered and probably was now suffering from

chronic schizophrenia, along with symptoms of paranoia

and hallucinations, and that he had also evidently failed

to take medication to remedy his condition for at least

two years. Illinois law requires that courts conduct competency hearings whenever “a bona fide doubt of the defendant’s fitness is raised.” 725 Ill. Comp. Stat. 5/104-11.

Certainly the medical records confirm Brown’s medical

problems, and those records would raise a “bona fide doubt”

regarding his competence. Further, Brown’s attorneys

might very well have found it probable (and certainly

had an ethical and legal obligation to explore this possibility)8

 to prevail on an insanity defense, given Dr. Ferrell’s

conclusion that “all decisions Mr. Brown made while off

his medication should indeed be viewed as the decisions

of an irresponsible, unreasonable, and illogical man.”

We understand that psychiatry is an imperfect science

at best. However, Strickland does not require absolute

certainty—it only requires a probability sufficient to undermine confidence that the result of the proceeding is

reliable. Strickland, 466 U.S. at 694. The failure of the

public defenders, the doctors, the probation officer, and

the state courts in the handling of this case of an indigent and mentally ill defendant not only “undermine[s]

confidence” in the reliability of the result; it might well

signal a system that is in need of review and repair. Given

Brown’s extensive and well-documented battle with

chronic schizophrenia, as well as Dr. Ferrell’s report characterizing Brown’s crime as demonstrative of a “lack

of logical, cohesive thinking” and the product of “the

thought-distorting effects of schizophrenia,” we refuse to
No. 01-2326 37

countenance the appellate court’s conclusion that the

result of Brown’s trial “would not have been different” had

trial counsel taken the minimal time to secure his mental health records and properly inform the court of

Brown’s condition.

We conclude that Brown was prejudiced by his counsel’s

failure to investigate (e.g., talking to his family, securing his prison medical records), to request a hearing to determine his competency to stand trial, and to consider

seriously the question of whether to enter a plea of not

guilty by reason of insanity. The Illinois Court of Appeals’

decision to the contrary is an unreasonable application

of the Strickland standard.

IV. CONCLUSION

This case is a striking example of a legal system that

processed this defendant as a number rather than as a

human being; it signals a breakdown of a process that

might very well be in need of review, adjustment, and repair. Brown’s psychiatric illness was not given so much

as a sideways glance by the parties involved. Not only

did Brown’s public defender trial attorneys drop the ball;

so did the court-appointed mental health doctors (a psychologist and a psychiatrist) and probation officer, all of

whom failed to conduct even a sufficient inquiry into his

family background and extensive medical history. As a

result, the state trial court proceeded without any awareness of his condition. We have a record before us that

mandates—in the interest of justice—the conclusion that

Brown was denied his Sixth Amendment right to effective

assistance of counsel on the grounds that his counsels’

failure to investigate his history of mental illness prejudiced the outcome of his trial. In so doing, we find it

unnecessary to address Brown’s claim that he was denied

his Fourteenth Amendment due process right because he
38 No. 01-2326

was tried and convicted when he was not competent to

stand trial.

We REVERSE the decision of the district court and

REMAND with directions to GRANT the writ of habeas

corpus unless the State of Illinois elects to re-try Brown

within a reasonable time to be fixed by the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—9-4-02