In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3851

ALBERT J. PRICE,

Petitioner-Appellant,

v.

MICHAEL THURMER, 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.

ARGUED SEPTEMBER 17, 2010—DECIDED APRIL 18, 2011

Before POSNER, KANNE, and WOOD, Circuit Judges.

POSNER, 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 appeal. 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 procrastination.

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 diagnosed 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 incompetent 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 challenged 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 difficulty 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 alcohol 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 substanceinduced 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 firsthand hearing or seeing transcription of those witnesses.” 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 possibility 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 retained 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 concluded that it was “not . . . even a close call” that the explosion 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 demonstrated 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 credibility 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 evaluation 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 evidence 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 determined 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 situation 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 inapplicable 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 relation 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 psychologist. 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 unreasonable 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 limitation 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 proceedings.” Boim v. Holy Land Foundation for Relief & Development, 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 abnormal 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) mindaltering 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 condition at the time of the offense . . . wasn’t a consequence of

drug abuse.” The documents that Price’s lawyer inexplicably 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 certainty. 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 defendant 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 proceeding only if “there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts 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 justification 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 evidence; 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 investigation 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 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 credibility of the reported observations.”

Id. (emphasis added).
18 No. 09-3851

Price argues that the Wisconsin court’s finding (culminating 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 unreasonable 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 interpretation:
No. 09-3851 19

Prosecutor: “Based upon the information that you

had, would you say that the defendant is still responsible 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 testimony 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 presented to it that Drom would not have changed his testimony 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 conviction that would enable us to declare its conclusion unreasonable. 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 unavailability 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 deprived Price of due process of law.

AFFIRMED.

4-18-11