In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3227

JIM LOWERY,

Petitioner-Appellant,

v.

RONDLE ANDERSON, Superintendent,
Indiana State Prison,

Respondent-Appellee.


Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 96-0071-C-H/G--David F. Hamilton, Judge.


Argued June 28, 2000--Decided August 29, 2000



      Before Flaum, Chief Judge, Bauer and Manion, Circuit
Judges.

      Bauer, Circuit Judge. Jim Lowery is under
sentence of death for the 1979 murders of Mark
and Gertrude Thompson. A direct appeal to the
Supreme Court of Indiana won him a new trial, but
upon retrial he was again convicted and again
sentenced to death. His appeals thereafter were
fruitless. He petitioned for collateral relief,
but his challenges to the murder convictions and
death sentence were unsuccessful. His attempt to
win a writ of habeas corpus from the U.S.
District Court also failed. Now he is before us.
We find that neither his conviction nor his
sentence were the result of constitutional
violations and affirm the District Court’s
decision to deny the writ.

I.   BACKGROUND

      Mark and Gertrude Thompson were murdered in
their home on the night of September 30, 1979 by
a man they once trusted as their caretaker. The
Thompsons were an elderly couple and their
declining health necessitated that they hire
others to help care for them and their property.
During the summer of 1979, Lowery and his wife
Barbara filled that role.

      Only a few months before the murders, Mark
Thompson fired Jim Lowery and ordered him off the
Thompson property. The loss of that job included
the loss of the rent-free caretaker’s trailer on
the Thompson property, in which Lowery and his
family lived, and the loss of the modest salary.
At first, Lowery refused to accept his demise,
pleading with Mark Thompson that he had no money
and no place to go. Thompson, however, was so
dissatisfied with the Lowerys’ service that he
offered Lowery $100.00 if he would leave the
property immediately. Lowery took the money and
moved his family to an old school bus in a nearby
campground.

      On September 30, 1979, Lowery and his friend
Jim Bennett drove to the Thompson’s home
intending to rob and murder the couple. Several
weeks before, Lowery and Bennett had discussed
committing a crime for pecuniary gain, as both
were in need of money. Lowery told Bennett he
knew where he could get some money, but it was
not until they were in the car on their way to
the Thompson’s house that Lowery told Bennett
that they were going to rob the Thompsons.
Lowery’s plan was to force Mark Thompson to write
a check for $9,000 and then to kill and bury the
couple. Lowery was armed with a pistol and
Bennett a sawed-off shotgun.

      Lowery and Bennett arrived at the Thompson’s
property around dark. Janet Brown, the new
caretaker, was in the trailer reading a book when
she heard the Thompson’s dog bark. Seconds later,
the trailer door was kicked in and an armed
Lowery entered, leaving Bennett outside.

      Ms. Brown later told police that she
immediately recognized the man as the Thompson’s
former caretaker. The two had met at the post
office a week earlier and had struck up a
conversation. When she told Lowery that she
worked for the Thompsons, Lowery admitted that he
had been their previous caretaker and he spoke,
she thought, hatefully of them.

      Lowery put the pistol against Brown’s neck and
forced her to take him into the Thompson’s house.
Bennett joined them as they crossed the lawn to
the house. Inside, they found Mark Thompson
standing in the kitchen. Immediately upon seeing
Lowery and being told that this was a "hold up,"
Thompson said "You don’t want to do this now,
Jim." Lowery responded by shooting him in the
stomach.

      After shooting Mark Thompson, Lowery forced
Brown, with the gun to her head, through the
kitchen, down the hall, and into the den where
Gertrude Thompson was watching television. Lowery
ordered Mrs. Thompson to get up and to go into
the kitchen. She complied. As she was walking
down the hall, Lowery hit her in the head with
the gun. She began to bleed, but was able to make
it into the kitchen, where Lowery shot her once
in the head at close range. Gertrude Thompson
died before help could arrive.

      Lowery also shot Janet Brown, but because she
put her hands in front of her, the shot was
deflected and she was grazed but alive. She
wisely lay on the floor pretending to be dead. As
she lay there, she heard the burglar alarm sound.
Somehow, despite his wound, Mark Thompson had
activated it, obviously greatly distressing
Lowery and Bennett. Lowery went back to where
Mark Thompson was, and Brown heard two more
shots. Lowery and Bennett then fled.

      Later, when she was certain the two men were
gone, Brown called the police. When they arrived,
Gertrude Thompson was dead and Mark Thompson was
dying from a gunshot wound to the head. Before
his death, Mark Thompson was able only to say
that four "monkeys" assaulted him. His son
testified that Mr. Thompson used the term
"monkeys" when he could not remember someone’s
name.

      Using the back roads, Lowery and Bennett
returned to the old school bus. They told
Lowery’s wife, Barbara, about the shootings.
Lowery was arrested two days later. Bennett the
day after that. After his arrest, Lowery made
several incriminating statements to police
officers. He also told his cellmate of his
crimes, describing them in a detailed manner.
Before trial he challenged the admissibility of
these statements, but was successful in excluding
only some.

      The prosecution struck a deal with Bennett. In
exchange for his testimony against Lowery and a
plea of guilty, the State dropped the habitual
offender charge against Bennett and its request
for the death penalty. It also guaranteed Bennett
a sentence of 40 years.

      Bennett testified that he and Lowery had
planned to rob the Thompsons and that Lowery shot
the Thompsons and Ms. Brown during the attempted
burglary. Brown identified Lowery in court and
testified that he was the person who shot her and
the Thompsons. Barbara Lowery also testified,
recounting how her husband and Bennett left the
camp with a handgun and a shotgun, saying they
were "off on a caper." When they returned later
that night, she said, they were visibly upset and
shaking, with Bennett explaining that it "went
bad," and, in Lowery’s presence, saying "he"
(meaning Lowery) shot them in the head. The jury
convicted Lowery of two counts of murder and one
count of attempted murder and recommended that he
be put to death. The judge sentenced him to
death. The Supreme Court of Indiana reversed
Lowery’s convictions on direct appeal because the
trial court failed to sequester the jury. Lowery
v. State, 434 N.E.2d 868 (Ind. 1982). Lowery was
tried a second time.

      Bennett refused to testify at the second trial.
He wanted a "better deal" on his plea bargain.
The State refused. Bennett was brought before the
court (out of the jury’s presence) and refused to
be sworn in. The court threatened to hold Bennett
in contempt, but Bennett still refused to
testify. He was held in contempt. The next day,
this procedure was repeated and the same result
obtained. Frustrated, the trial judge told
Bennett that if he continued to refuse to
testify, the court would order the prosecutor to
bring murder charges against Bennett because he
had violated his plea agreement. Both the
prosecutor and the defense counsel agreed that
such an order was beyond the scope of the court’s
authority and the court recanted. Before Bennett
was aware that the threat of prosecution had been
removed, however, he changed his mind and agreed
to testify. That change was short lived. Once
Bennett was advised that the only penalty for
refusing to testify was to be held in contempt of
court, he again refused to testify. The court
then declared Bennett to be unavailable and
allowed the prosecutor to read Bennett’s
testimony from the first trial to the jury. The
jury convicted Lowery of the murders of Mark and
Gertrude Thompson and the attempted murder of
Janet Brown.
      At the sentencing phase of the trial, the
prosecution argued for the death penalty, saying
it was justified because the murders were
committed during an attempted burglary (an
aggravating factor) and because there were
multiple murders. Lowery’s mother, father and
youngest sibling testified on Lowery’s behalf, as
did a psychiatrist retained by the defense.
Lowery also took the stand, admitting to the
crimes. Nevertheless, the jury recommended the
death penalty. The trial judge sentenced Lowery
accordingly.

      The Supreme Court of Indiana affirmed the
murder convictions and death sentences. Lowery v.
State, 478 N.E.2d 1214 (Ind. 1985). However, it
later reversed the conviction of attempted
murder, saying the jury had been wrongly
instructed on that count. Lowery v. State, 640
N.E.2d 1031 (Ind. 1994). The State chose not to
retry Lowery for the attempted murder. The U.S.
District Court denied habeas relief. Lowery v.
Anderson, 69 F.Supp.2d 1078 (S.D.Ind. 1999).
Lowery appeals, claiming that the introduction of
Bennett’s prior testimony violated his Sixth and
Fourteenth Amendment rights, that the State and
trial court violated Caldwell v. Mississippi, 472
U.S. 320 (1985), by leading the jury to believe
that its recommendation to the judge concerning
the death penalty carried less weight than in
fact it does, and that he was denied effective
assistance of counsel. We affirm.

II.   DISCUSSION

      Federal courts may grant a writ of habeas
corpus when a person is held in custody under a
state court judgment in violation of the United
States Constitution. 28 U.S.C. sec.2254; Kavanagh
v. Berge, 73 F.3d 733, 735 (7th Cir. 1996).
Because Lowery filed his petition before the
effective date of the Antiterrorism and Effective
Death Penalty Act of 1996, our review is plenary.
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en
banc) rev’d on other grounds 521 U.S. 320 (1997).
We must accept as true the reasonable factual
findings of the state courts, Abrams v. Barnett,
121 F.3d 1036, 1038 (7th Cir. 1997), but questions
of law or mixed questions of law and fact are
considered de novo. Brewer v. Aiken, 935 F.2d
850, 855 (7th Cir. 1991). Furthermore, we may
consider our own jurisprudence, in addition to
the jurisprudence of the United States Supreme
Court. Abrams, 121 F.3d at 1037-38.

       A.   Admission Of Bennett’s Prior Testimony

      At Lowery’s first trial, Jim Bennett testified
for the prosecution. He did so pursuant to a plea
agreement that required his testimony and
guaranteed him a sentence of 40 years. Before the
retrial, Bennett informed the prosecutor that he
would not testify again unless the prosecutor
reduced his sentence to 10 years. The prosecutor
refused. Bennett, then, true to his word, refused
to testify when called. The trial judge held
Bennett in contempt, but Bennett still refused to
testify. As described below, this procedure was
repeated several times, outside the jury’s
presence. Finally, Bennett was called with the
jury present. He refused again to testify and was
again held in contempt. At that point, the trial
judge declared Bennett to be an unavailable
witness and allowed the prosecutor, over Lowery’s
objection, to read to the jury Bennett’s
testimony from the first trial. Lowery claims
this was reversible error because it denied him
his constitutional right to confront and cross-
examine the witness against him. He also argues
that Bennett was not truly "unavailable" because
the State failed to exhaust other means which
might have induced Bennett to testify.

       The Confrontation Clause of the Sixth Amendment
guarantees the right of the accused to "be
confronted with the witnesses against him." U.S.
Const. Amendment VI. See also Delaware v. Van
Arsdall, 475 U.S. 673, 678 (1986). The main and
essential purpose of confrontation is to secure
for the opponent the opportunity for cross-
examination. United States v. Sasson, 62 F.3d
874, 882 (7th Cir. 1995), cert. den’d, 516 U.S.
1131 (1996). Lowery contends that he was deprived
of this right when Bennett’s prior testimony was
read to the jury.

      The Sixth Amendment confrontation clause,
however, "permits, where necessary, the admission
of certain hearsay statements against a defendant
despite the defendant’s inability to confront the
declarant at trial." Maryland v. Craig, 497 U.S.
836, 847-48 (1990) (citations omitted). The
confrontation clause is satisfied, and no
constitutional violation occurs, when the
defendant had a full and fair opportunity to
cross-examine the witness at the earlier
proceeding and the witness is "unavailable" for
the subsequent proceeding. Mancusi v. Stubbs, 408
U.S. 204, 216 (1972). Lowery admits that
Bennett’s testimony was subject to cross-
examination at the first trial and does not
contend that the cross-examination was less than
full or meaningful. He complains that Bennett’s
prior testimony was improperly admitted because
Bennett was not truly "unavailable" the second
time around.

      It is well established that a witness may be
deemed "unavailable" and use of his former
testimony permitted if the witness "persists in
refusing to testify . . . despite an order of the
court to do so." Fed.R.Evid. 804(a)(2). See also
California v. Green, 399 U.S. 149, 168-69 (1970).
However, there is more to consider. The
prosecution must also demonstrate that it made a
good faith effort to obtain the witness’
testimony, in person, before the trier of fact.
Ohio v. Roberts, 448 U.S. 56, 74 (1980). The
lengths to which the prosecution must go to
produce a witness is a question of
reasonableness. Id.

      Here, in an effort to secure Bennett’s
testimony for the second trial, the prosecutor
had Bennett transported from the state prison in
which he was incarcerated to a county jail so
that he could be available to testify. He also
attempted to talk with Bennett before calling him
as a witness, and kept calling him as a witness
during the trial, even though Bennett refused to
testify and had been held in contempt of court.
What the prosecution did not do was, as the trial
judge suggested, threaten to revoke Bennett’s
plea agreement and try him for murder, or
threaten to try him for obstruction of justice.
The Supreme Court of Indiana found that Bennett
"was amenable" to these tactics and Lowery
suggests that because they might have worked, the
State did not act reasonably or in good faith in
attempting to obtain Bennett’s testimony for the
retrial. The District Court disagreed, saying:

[t]he fact that other steps the prosecution did
not take might also have been reasonable does not
show either that it failed to make a reasonable,
good faith effort to secure Bennett’s testimony,
or that Lowery’s Sixth Amendment rights were
violated by use of Bennett’s testimony from
Lowery’s first trial.

Lowery, 69 F.Supp.2d at 1093. We agree. Although
the record is silent as to why the prosecution
chose not to threaten Bennett with further
prosecution or charge him with a crime, there is
no requirement that it do so and such decisions
are well within the prosecution’s discretion.
Johnson v. State, 675 N.E.2d 678, 683 (Ind.
1996); LaMotte v. State, 495 N.E.2d 729, 733
(Ind. 1986). We decline to impose a rule imposing
the court’s will upon the prosecution and we fear
that to do so would violate the separation of
powers.

      The fact that more, theoretically, could have
been done to persuade Bennett to testify does not
persuade us to reach a contrary result. If we
adopt Lowery’s position and mandate that the
prosecution threaten recalcitrant witnesses, or
possibly even charge them with minor crimes,
where do we stop? A bright line test is not
possible in cases such as this. We believe the
better rule is to consider the totality of the
circumstances and determine reasonableness and
good faith on a case by case basis. In this case
we find that the prosecution did make a good
faith effort to secure Bennett’s testimony for
the retrial.

      We understand the passion with which Lowery
presents his argument, especially in light of the
inconsistent statements Bennett made between the
first and second trials. During that interim,
Bennett wrote letters to state officials and to
Lowery, saying in one that there were three
people involved in the crime and, in another,
that Lowery was not present when the crime
occurred. In each instance, he offered to
exchange information for a further reduction in
his sentence./1 Lowery argues that he was
irrevocably prejudiced by the prosecution’s
failure to procure Bennett as a live witness so
that he could cross-examine him with this new
information. He asks that we review this claim
under the harmless error standard of Chapman v.
California, 386 U.S. 18 (1967), and says that
once we do reversal is mandated.

      Under the Chapman harmless error standard, the
government has the burden of demonstrating that
the error was harmless beyond a reasonable doubt.
Id. at 22. We have reviewed and rejected that
argument and instead adopted the standard set
forth by the Supreme Court in Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993), which holds
that an error is harmless unless the defendant
can show that it had a "substantial and injurious
effect or influence in determining the jury’s
verdict." Tyson v. Trigg, 50 F.3d 436, 446-47 (7th
Cir. 1995), cert. den’d, 516 U.S. 1041 (1996).
See also Fleenor v. Anderson, 171 F.3d 1096, 1101
(7th Cir. 1999), cert. den’d, 120 S.Ct. 215 (1999)
(applying the Brecht standard in a capital case).
The Brecht standard recognizes that an earlier
court has already reviewed the claimed error
under the heightened Chapman standard and,
therefore, permits a lower level of scrutiny on
appeal. Here, the "new evidence" upon which
Lowery relies developed before the second trial.
His claims thereafter could have been reviewed by
the Supreme Court of Indiana on direct appeal and
on petition for collateral relief or by the U.S.
District Court on the petition for writ of habeas
corpus. They were not, however, because the
letters and testimony regarding Bennett’s alleged
recantation were not offered at trial. The
Supreme Court of Indiana, in refusing to review
the alleged error said "the court did not have an
opportunity to rule on the offer of the letter,
and there is no error presented for our review."
Lowery, 478 N.E.2d at 1223-24 (Ind. 1985). Thus,
contrary to Lowery’s assertion, we believe that
the courts before us have had an opportunity to
address the claimed error and have rejected it,
finding that it was either waived or did not
present an issue of manifest injustice requiring
the reversal of his conviction. We therefore
believe the rationale behind Brecht has been
satisfied and apply its standard of review to
this case.

      We find that Lowery has not met that burden.
The trial court indicated that Lowery could
inform the jury about Bennett’s letter and
statements, but Lowery’s attorney never attempted
to do so. Lowery, 478 N.E.2d at 1223.
Furthermore, the jury was informed that Bennett
was testifying pursuant to a plea agreement
which, as the State points out, could make the
jury skeptical of his testimony anyway. But most
importantly, we believe that Lowery fails to meet
his burden of proving that the claimed error had
a "substantial and injurious effect or influence
in determining the jury’s verdict" because of the
wealth of corroborative information presented by
the prosecution. Not only did Bennett testify
that it was Lowery who shot the Thompsons and Ms.
Brown, Lowery himself confessed those facts to
various police officers and his cellmate and
those statements were presented to the jury. Ms.
Brown also testified and identified Lowery as her
attacker and as the murderer of the Thompsons.
And, finally, there was the testimony of Lowery’s
ex-wife, Barbara. Our review of the entire record
in this case convinces us that any error (and we
believe there was none) in the admission of
Bennett’s prior testimony was harmless.


      B.   Role Of The Jury’s Recommendation Of Death

      A death sentence may not be based on "a
determination made by a sentencer who has been
led to believe that the responsibility for
determining the appropriateness of the
defendant’s death rests elsewhere." Caldwell v.
Mississippi, 472 U.S. 320, 328-29 (1985). Lowery
complains that he was denied due process and a
fair sentencing determination because the court
and prosecutor "demeaned" the jury’s sense of
responsibility in a "materially inaccurate and
misleading manner" that violated Caldwell. The
court told the jury during voir dire that "it’s
not the function of the jury to sentence a
defendant. It is solely the responsibility of the
Judge, me, and the Judge must make the final
decision. The jury’s decision is merely a
recommendation." The prosecutor spoke likewise.

      In Caldwell, the prosecutor, apparently hoping
to sway timid jurors, argued to the jury that if
it decided to impose the death penalty, its
decision would not be the "final decision," and
that its decision was "automatically reviewable"
by the state’s supreme court. The Supreme Court
held that these comments were inappropriate and
required reversal because the suggestion that
"the responsibility for any ultimate
determination of death will rest with others
presents an intolerable danger that the jury will
in fact choose to minimize the importance of its
role." Id. at 333. Any decision based upon a
jury’s inaccurate perception about its role in
the imposition of a death sentence is, under the
reasoning of Caldwell, unconstitutional. Lowery
argues to us that the court’s and prosecutor’s
statements were inaccurate and require reversal
of his sentence because they minimized the jury’s
role and made the juror’s believe their role in
imposing a death sentence was almost ceremonial.
We do not agree.

      To violate Caldwell, the remarks to the jury
must inaccurately describe the role of the jury
under state law. Romano v. Oklahoma, 512 U.S. 1,
9 (1994); Dugger v. Adams, 489 U.S. 401, 401
(1989); Darden v. Wainwright, 477 U.S. 168, 183-
84 n.15 (1986). Under Indiana law, the jury
recommends to the judge whether the death penalty
should be imposed. The judge must consider the
jury’s recommendation, but, the final decision is
his. Ind. Code sec.35-50-2-9(e). In this case,
the jury was informed that its role was to
recommend to the trial judge whether or not to
impose the death penalty. Contrary to Lowery’s
suggestion, the jury was properly instructed as
to its role and there was no Caldwell violation.

      We recently addressed, in Fleenor v. Anderson,
171 F.3d 1096, 1099-101 (7th Cir. 1999), cert.
den’d, 120 S.Ct. 215 (1999), the application of
Caldwell to the jury recommendation procedure in
Indiana. There, the jury was repeatedly informed
that its role in sentencing was to make a
recommendation to the trial judge, who would make
the final sentencing decision. The judge advised
the jury during voir dire:

In Indiana, after the trial of a case, if a
defendant is found guilty, then another hearing
is held before the jury, where the parties have
an opportunity to present . . . evidence of
aggravating and mitigating circumstances in the
case and then the jury again retires to make a
recommendation to the court from the jury whether
they recommend the death penalty. It’s not the
function of a jury to sentence a defendant. It is
solely the responsibility of the Judge, me, and
the Judge must make the final decision. The
jury’s opinion is merely a recommendation to me.

Lowery, 69 F.Supp.2d at 1101, citing state court
record, exhibit 28 at page 48. These words
mirror, almost exactly, the words given to
Lowery’s jury. We found in Fleenor, and we find
here, that telling the jury that its role is
advisory and that the court makes the final
sentencing determination does not violate
Caldwell. As we said in Fleenor, "what the judge
was telling the jurors was true, and it was also
something they were entitled to know." Id. There
being no affirmative misstatement of law or fact
that could mislead the jury, we find that there
was no violation of Lowery’s rights.


      C.   Ineffective Assistance Of Counsel

      The Sixth Amendment protects a defendant’s right
to a fair trial by providing him with a right to
counsel. Strickland v. Washington, 466 U.S. 668,
684 (1984). This right is satisfied as long as
counsel’s conduct at trial was competent. This
right is violated when counsel’s conduct was so
deficient as to render the trial meaningless or
its result unreliable. Id. at 686. Lowery claims
his trial counsel was so ineffective as to meet
this standard.

      To prevail on a claim of ineffective assistance
of counsel, Lowery must prove: (1) counsel’s
representation was deficient, and (2) the
deficient performance so prejudiced him as to
deprive him of a fair trial. Id. at 687-88. The
absence of either prong defeats his claim. Id. at
700. Our review is highly deferential, id. at
689, and we will indulge "a strong presumption
that counsel’s conduct falls within the wide
range of reasonable professional assistance."
Galowski v. Berge, 78 F.3d 1176, 1180 (7th Cir.
1996), cert. den’d, 519 U.S. 878 (1996)
(citations omitted). Indeed, we will reverse only
when it has been shown with a reasonable
probability "that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different." Id.

      Lowery argues that his trial counsel provided
ineffective assistance by (1) failing to
introduce evidence of Ms. Brown’s prior
misidentification of him at the first trial,
where she identified a picture of Bennett as a
picture of him, (2) failing to introduce
additional evidence impeaching Bennett; and (3)
failing to investigate and present additional
mitigating evidence during the sentencing phase
of the trial. Like the District Court, we quickly
dismiss Lowery’s challenge to his attorney’s
failure to impeach Brown with the mistaken
identification.

      In Lowery’s first trial, defense counsel showed
Janet Brown a photograph of Bennett and asked
whether the person in the photo was the person
who shot her. Brown said "[i]t’s not a very good
picture. It looks like James Lowery’s eyes, but
it’s not a very good picture of him." Counsel did
not repeat the exercise or raise the prior
misidentification in the second trial. Claiming
that this omission was a constitutional
violation, Lowery asks us to reverse his
conviction.

      We will not second guess a trial counsel’s
strategic or tactical decisions. United States v.
Godwin, 202 F.3d 969, 973 (7th Cir. 2000), cert.
den’d, 120 S.Ct. 2023 (2000). At a post-
conviction hearing, counsel testified that he did
not introduce this evidence because he considered
it a "lucky fluke" and was concerned that the
jury might have regarded the use of a poor
quality photograph as an attempt to trick Ms.
Brown. It also, he said, would have gone against
his trial strategy of making no reference to
Lowery’s prior trial and conviction. This is
likely because the court had granted a defense
motion in limine to exclude any reference to the
previous trial. The District Court found that
this omission was a strategic decision and did
not rise to the level of ineffective assistance
of counsel. We agree. Counsel can fairly have
been said to have been exercising trial strategy
and tactics in deciding not to challenge Brown’s
credibility in this manner.

      Lowery also argues that his attorney was
ineffective because he failed to offer Bennett’s
letters and other inconsistent statements during
the second trial. He believes this evidence would
have further impeached Bennett’s credibility. The
State argues that counsel’s failure did not
prejudice Lowery.

      Our inquiry into whether Lowery was prejudiced
by his counsel’s omission, under Strickland,
focuses on whether the claimed deficiency
rendered the proceeding unreliable or unfair.
Lockhart v. Fretwell, 506 U.S. 364, 369-70
(1993). As the District Court noted, the jury was
already skeptical of Bennett. They were aware of
the existence of the plea agreement whereby he
was trading his testimony in exchange for
leniency, and they saw him refuse to testify and
saw the judge hold him in contempt. It is hard to
imagine that the jury could have held Bennett in
high regard after all of that. Therefore, it can
be supposed that his credibility had already been
damaged in the eyes of the jury. The additional
evidence probably would have had little
additional impact on that front.

      Furthermore, as the District Court also
discussed, "Bennett’s testimony on the critical
points was corroborated." Lowery’s ex-wife
Barbara testified to her observations and to the
statements made to her by both Lowery and
Bennett. There was also the testimony of Janet
Brown, an innocent victim who was at the wrong
place at the wrong time. Her testimony was
virtually unchallenged and powerful. It was also
consistent with and in addition to Bennett’s
testimony. Finally, there were the admissions
made by Lowery to various police officers and to
his cellmate. Viewed in the totality of these
circumstances, we believe that the admission of
this extra evidence to impeach Bennett would not
have changed the jury’s verdict. The omission did
not, then, render the trial unfair or unreliable.

      Lowery challenges the District Court’s reliance
on his penalty phase testimony to conclude that
trial counsel’s failure to offer Bennett’s
letters and statements did not prejudice him. The
District Court said that the trial result could
not be doubted as Lowery admitted on cross-
examination that he murdered the Thompsons. He
fears that the court’s analysis renders the
Strickland prejudice prong outcome determinative
and puts defendants in a no-win situation if they
choose to confess at the penalty phase in hopes
of receiving a more lenient sentence. He
correctly argues that if that were the standard,
no defendant would ever confess because he could
not later challenge any errors on appeal.
Although this argument contains some logic, it is
inapplicable here. The District Court did not
base its finding of no-prejudice on Lowery’s
penalty phase testimony alone. As discussed
above, it found a wealth of other corroborative
testimony that supported the jury’s verdict. For
this reason, we reject Lowery’s argument and
affirm the District Court’s finding that he was
not prejudiced by his trial counsel’s failure to
introduce Bennett’s letters and statements.

      Finally, we turn to Lowery’s contention that
his counsel was ineffective because he failed to
introduce additional mitigating evidence at the
sentencing phase of the trial. He wishes that his
lawyer had presented more biographical and
character evidence. The Supreme Court of Indiana
found that the desired evidence would have
mirrored evidence presented and been cumulative.
Lowery, 640 N.E.2d at 1048. This is true.
Lowery’s mother, father, and brother testified
that he had a rough childhood. A psychiatrist
testified to his previous bouts of mental
illness. The additional evidence that he wished
to present was of the same nature. It was
testimony by his younger siblings that he was
kind to children and that he showed kindness to
them while growing up. This proffered testimony,
as the courts before us found, would not have
added much and would have been largely
repetitive. Although we understand Lowery’s wish
to present as much evidence as possible to
humanize him to the jury and avoid the death
penalty, we cannot say that his trial counsel’s
failure to offer this evidence was a violation of
his constitutional rights.

III.   CONCLUSION

      For the foregoing reasons, the judgment of the
District Court is affirmed.

AFFIRMED.



/1 He also reportedly told prison officials that he
was high on drugs at the time of the crime and
that he was going to "fuck up" the second trial
by saying that Lowery wasn’t there.
