In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2979

Perry Steven Miller,

Petitioner-Appellant,

v.

Rondle Anderson,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 99 C 258--Allen Sharp, Judge.

Argued May 8, 2001--Decided June 29, 2001


  Before Posner, Easterbrook, and Ripple,
Circuit Judges.

  Posner, Circuit Judge. Miller was
convicted in an Indiana state court of
the rape, torture, and murder of a young
woman and was sentenced to death. After
exhausting his state remedies in Miller
v. State, 623 N.E.2d 403 (Ind. 1993), and
Miller v. State, 702 N.E.2d 1053 (Ind.
1998), he sought habeas corpus in federal
district court, it was denied, and he
appeals, arguing that his trial counsel
was ineffective and so he is entitled to
a new trial. The Indiana Supreme Court
ruled that Miller’s counsel had not been
ineffective, and we must decide whether
the ruling was an unreasonable
application of federal constitutional law
as declared by the U.S. Supreme Court, 28
U.S.C. sec. 2254(d)(1); Williams v.
Taylor, 529 U.S. 362, 404-05 (2000);
Denny v. Gudmanson, No. 98-4275, 2001 WL
527626 at *2 (7th Cir. May 18, 2001);
Tenner v. Gilmore, 184 F.3d 608, 610,
614-16 (7th Cir. 1999); Mask v. McGinnis,
No. 99-2396, 2001 WL 568120 at *2 (2d
Cir. May 25, 2001) (per curiam)--
specifically whether the Indiana court
was unreasonable to reject Miller’s claim
that his lawyer’s representation of him
at trial fell below the minimum level of
competence required in the representation
of a criminal defendant and, if so,
whether with minimally competent
representation Miller would have had a
significant, not merely a theoretical,
chance of acquittal.

  The victim, who worked at an all-night
convenience store, was seized late at
night from the otherwise empty store,
taken to a secluded spot, tortured,
raped, and then killed by a shot from a
shotgun at close range. There were no
witnesses. Two teenagers, Wood and
Harmon, who lived with Miller, were
arrested the next day. Wood confessed,
implicating both Harmon and Miller--the
last, Wood stated, having orchestrated
the entire atrocious crime, as well as
participating in it, although Harmon had
been the one who shot the victim. Wood
testified against Miller at Miller’s
trial, pursuant to a plea
agreementwhereby Wood’s sentence was
capped at 60 years. (Harmon, who was also
prosecuted and convicted, did not testify
at Miller’s trial.) Wood’s testimony was
the centerpiece of the state’s case, but
it was not entirely satisfactory. It
contained some contradictions; it had
been induced, in part anyway, by the
state’s promise not to seek the death
penalty for him; and despite his youth he
was already an accomplished criminal when
the rape and murder occurred. The state
wanted corroboration and found it in the
testimony of its expert witness that a
pubic hair found on the victim’s thigh
almost certainly was Miller’s. The
prosecution harped on this evidence in
closing argument. Miller’s lawyer did not
consult with a hair expert, let alone
call one as a witness, but was content to
cross-examine the state’s expert. In the
postconviction proceedings, however, new
counsel for Miller retained a far more
experienced hair expert than the state’s
and this expert testified that the hair
was like the victim’s hair and unlike
Miller’s. The prosecution at Miller’s
trial had also presented DNA evidence
that it admitted was inconclusive and had
not presented tire-tread and footprint
evidence that it had said in opening
argument it would present. Had Miller’s
lawyer called his own DNA, tiretread, and
footprint experts, they would have
testified not that the evidence was
inconclusive but that it provided
absolutely no basis for supposing Miller
present at the scene of the crime.

  Of course Miller’s trial lawyer, even if
he had searched conscientiously for
expert witnesses to testify about hair,
DNA, tiretreads and footprints, might not
have found experts that would give
impressive testimony favorable to Miller,
even if such experts existed. The fact
that Miller’s postconviction counsel was
able to find a highly experienced hair
expert to testify in Miller’s favor
doesn’t mean that minimally competent
trial counsel, shopping for an expert
whom the court would appoint (since
Miller could not afford to hire an expert
in the market for high-priced expert
witnesses), could have found as effective
a witness to counter the prosecution’s
expert evidence. But the government makes
nothing of this point; it is content to
argue that Miller’s lawyer was entitled
to rely on cross-examination to undermine
the prosecution’s experts, and to make no
effort to obtain his own experts. This
argument would be convincing in some
cases, but not in this one; cross-
examination alone could weaken the
prosecution’s expert evidence, but not to
the point of denying it the essential
corroborative value for which the
prosecutor was using it.

  A hardware clerk testified that Miller
had purchased shotgun shells the day
before the murder. She based this
testimony in part on her recollection of
having received a check in Miller’s name,
and the state sought to corroborate her
recollection by introducing a check and
cash register record with the name
"Miller" on it. The check was numbered
1204 and the witness testified that she
was positive that "Miller 1204" was the
defendant. In fact the check was from a
different person, as Miller’s lawyer
would have discovered had he subpoenaed
the bank’s records from the bank. He did
obtain Miller’s copy of those records,
which contained no trace of such a check;
and while the prosecutor argued that
Miller might have had another bank
account on which he had written the
check--an argument with no basis in the
evidence--the prosecutor could have made
the same argument had Miller’s lawyer
obtained bank records, since the lawyer
could not have obtained the records of
every bank in which Miller might have had
another account. But only with the bank’s
records could the lawyer have shown that
"Miller 1204" was a different Miller from
the defendant.
  The lawyer further failed to point out
to the jury that while the clerk
testified that she had sold Miller
Remington shotgun shells, the shells
found at the scene of the crime were of
another make. The lawyer did elicit from
Miller’s wife testimony that Miller had
not written the check; but since in
closing argument the lawyer stated that
Miller’s wife would lie for him, the
testimony was unlikely to have helped
Miller--and incidentally that comment in
closing argument demolished Miller’s
alibi defense, for which the sole
evidence was his wife’s testimony.

  Most questionable of all the lawyer’s
fumbles was his decision to call a
psychologist to testify that Miller was
incapable of the kind of violence that
had been perpetrated against the victim.
The lawyer did this knowing that Miller
had been previously convicted of
kidnapping, rape, and sodomy and at the
time of the crime for which he was being
tried had been free on parole from a life
sentence for kidnapping. The state
brought these facts out on cross-
examination of the psychologist and they
not only destroyed the psychologist’s
credibility but almost certainly and
perhaps decisively bolstered the jury’s
confidence in Miller’s guilt. (The state
had made no effort to place his prior
convictions in evidence to demonstrate a
modus operandi.) At the postconviction
proceedings, the lawyer was unable to
articulate a coherent reason for having
put the psychologist on the stand, given
the inevitability of the destruction of
the psychologist and of Miller himself if
the jury was told about the prior
convictions. Nor did the Indiana courts
give any reason for supposing it an even
minimally intelligent tactic. The fact
that it was a tactic obviously does not
immunize it from review in a challenge to
the lawyer’s effectiveness. Tactics are
the essence of the conduct of litigation;
much scope must be allowed to counsel,
but if no reason is or can be given for
a tactic, the label "tactic" will not
prevent it from being used as evidence of
ineffective assistance of counsel. United
States v. Zarnes, 33 F.3d 1454, 1473 (7th
Cir. 1994); Jackson v. Roth, 24 F.3d
1002, 1004-05 (7th Cir. 1994); United
States v. Booker, 981 F.2d 289, 295 (7th
Cir. 1992); Wade v. Franzen, 678 F.2d 56,
58 (7th Cir. 1982); Kellogg v. Scurr, 741
F.2d 1099, 1102 (8th Cir. 1984).

  Although the lawyer’s conduct must be
evaluated as a whole, United States v.
Lindsay, 157 F.3d 532, 534-35 (7th Cir.
1998); Schiro v. Clark, 963 F.2d 962, 971
(7th Cir. 1992), aff’d on other grounds,
510 U.S. 222 (1994), since mistakes at
some points in the trial might be
redeemed by wise tactics at other points,
there were no bright spots in his
representation of Miller. His closing
argument, for example, was a shambles,
quite apart from the irresponsible and
unhelpful suggestion that Miller’s wife
would lie for Miller under oath.

  The clearest respect in which the
lawyer’s representation fell below the
minimum level was the decision to put the
psychologist on the stand, knowing what
the lawyer knew. He also had no excuse
for failing to inquire whether the
defendant was "Miller 1204," since if he
was not--and he was not--the clerk’s
testimony would be seriously undermined,
given the great emphasis she placed on
her recollection of the check. And, in
the circumstances (an essential
qualification), there was also no excuse
for the lawyer’s failure to consult
experts on hair, DNA, treadmarks, and
footprints. A defendant’s lawyer does not
have a duty in every case to consult
experts even if the government is
proposing to put on expert witnesses.
United States v. Anderson, 61 F.3d 1290,
1298-99 (7th Cir. 1995); Yohey v.
Collins, 985 F.2d 222, 228 (5th Cir.
1993). There may be no reason to question
the validity of the government’s proposed
evidence or the evidence may be so weak
that it can be demolished on cross-
examination. But since Miller’s defense
was that he had not been at the scene of
the crime, and he could not testify in
opposition to Wood because to do so would
enable the state to bring in the
devastating evidence of his prior
convictions, and the government was going
to put great weight on expert evidence in
order to bolster Wood’s testimony,
Miller’s only chance was to establish so
far as it was possible to do that there
was no objective evidence placing him at
the scene of the crime. A DNA expert and
a treadmark and footprint expert would
have so testified, and probably a hair
expert more credible than the state’s
would have so testified as well because
the expert that Miller’s new counsel
found was far more qualified than the
state’s and, as we noted earlier, the
state does not argue that Miller’s
postconviction expert was superior to the
average expert that competent trial
counsel might have found. In these
circumstances, it was irresponsible of
the lawyer not to consult experts.
Wallace v. Stewart, 184 F.3d 1112, 1117
(9th Cir. 1999); Bean v. Calderon, 163
F.3d 1073, 1079 (9th Cir. 1998); cf.
Strickland v. Washington, 466 U.S. 668,
690-91 (1984) (duty of reasonable
investigation).

  It remains only to consider whether
Miller would have had a reasonable shot
at acquittal had his lawyer been
minimally competent. We think so. The
minimally competent lawyer would have
presented expert evidence that there was
no physical evidence of Miller’s presence
at the crime scene, would have greatly
undermined the hardware clerk’s evidence,
would not have undermined the alibi
testimony of Miller’s wife, would by
forgoing psychological evidence (unlikely
in any event to impress a jury) have kept
the evidence of Miller’s previous crimes
from the jury, and would thus have forced
the state to rely entirely on Wood’s
questionable testimony. The jury might
have concluded that Wood was trying to
save his life by portraying himself
falsely as the tool of an older man. This
is far from certain; indeed, we think the
chance of an acquittal would still have
been significantly less than 50 percent;
but it would not have been a negligible
chance, and that is enough to require us
to conclude that the lawyer’s errors of
representation were, in the aggregate,
prejudicial. Id. at 694; Washington v.
Smith, 219 F.3d 620, 632-33 (7th Cir.
2000); Hernandez v. Cowan, 200 F.3d 995,
999-1000 (7th Cir. 2000); Gonzalez-
Soberal v. United States, 244 F.3d 273,
277 (1st Cir. 2001).

  The judgment is reversed with directions
that the state either release Miller or
retry him within 120 days. In addition,
we are sending this opinion to the
Indiana attorney disciplinary authorities
for consideration of whether attorney
Ronald V. Aungst’s deficient
representation of Miller at his trial
warrants disciplinary proceedings.
Reversed.
