                              No. 94-2064


Jimmie L. Weekley,                  *
                                    *
      Appellee,                     *
                                    *   Appeal from the United States
        v.                          *   District Court for the
                                    *   Eastern District of Missouri.
Jimmie Jones,                       *
                                    *
      Appellant.                    *



                   Submitted:   September 11, 1995

                     Filed:     February 23, 1996


Before RICHARD S. ARNOLD, Chief Judge, and HENLEY, McMILLIAN, FAGG,
     BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD
     ARNOLD, and MURPHY, Circuit Judges.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     This protracted litigation grew out of tragic events that
occurred more than seventeen years ago when Jimmie L. Weekley
evidently killed his wife with a shotgun and then turned the weapon
on himself in an unsuccessful attempt to commit suicide. A jury
convicted him of second-degree murder in 1980, a judge (the jury
being unable to decide on a sentence) sentenced him to life in
prison, and, after his conviction was affirmed on appeal, see State
v. Weekley, 621 S.W.2d 256 (Mo. 1981), Mr. Weekley twice petitioned
for post-conviction relief on various grounds in the state courts
of Missouri and was turned away.


     Mr. Weekley then applied for habeas corpus relief in the
appropriate federal district court under 28 U.S.C. § 2254(a), and
his petition was denied. Our court reversed this denial on appeal,
see Weekley v. Jones, 927 F.2d 382 (8th Cir. 1991), and remanded to
the district court for further proceedings with respect to whether
Mr. Weekley's jury was constitutionally constituted, whether his
mental condition was such that he was denied due process when he
was put to trial, and whether his counsel was ineffective for not
asserting that he was incompetent to stand trial and for not going
forward with an insanity defense. On remand, Mr. Weekley abandoned
his claim that his jury was unconstitutionally composed, but the
district court granted the writ on his other claims. On appeal, a
panel of our court affirmed the district court's grant of the writ
on the ground that counsel was ineffective for not pursuing an
insanity defense, but it reversed that portion of the district
court's judgment that granted relief on other grounds. See Weekley
v. Jones, 56 F.3d 889 (8th Cir. 1995).    We granted the state's
petition for rehearing en banc and vacated the panel's decision.


                                 I.
     For the reasons stated in the original panel decision, we
reverse the holding of the district court that Mr. Weekley was
entitled to relief on his due process claim and because his counsel
was ineffective for not asserting that he was incompetent to stand
trial. See Weekley v. Jones, 56 F.3d 889, 894-95 (8th Cir. 1995).


                                II.
     A good deal more complex and troubling is Mr. Weekley's claim
that his counsel was ineffective by persuading Mr. Weekley to
withdraw his defense of "not guilty by reason of insanity" and
proceeding to trial on a simple plea of "not guilty." Mr. Weekley
has occasionally characterized his claim as one that his lawyer
"coerced" him into changing his plea, but we think that what he
means by that is that his lawyer did not properly investigate the
viability of such a defense and did not advise him of the
possibility of proceeding simultaneously with pleas of "not guilty"
and "not guilty by reason of insanity."


                               -2-
     Mr. Weekley's counsel tells an entirely different story. He
asserts that it was Mr. Weekley himself who insisted on withdrawing
the insanity plea because he did not want to run the risk of
receiving an indeterminate sentence in a mental institution.
Mr. Weekley preferred, his counsel said, to run the risk of a fixed
sentence in a prison. The district court made no specific finding
on this conflict in the testimony, although it at least intimated
that it did not believe Mr. Weekley's counsel entirely, because it
held that counsel "fell below the standard [of reasonably competent
representation of his client] by deciding when he was first hired
that the matter would be tried on a plea of not guilty."        The
district court also found counsel ineffective for not pursuing
simultaneously a defense of "not guilty" and "not guilty by reason
of insanity," especially since there was no plausible defense on
the facts.


     At the time that counsel took up his representation of
Mr. Weekley, he knew that two psychiatrists, Dr. E. Corales and
Dr. Sadashiv Parwatikar, had examined Mr. Weekley and that both of
them had determined that he suffered from paranoid schizophrenia.
Counsel also knew that Dr. Corales had been unable to make a
determination as to Mr. Weekley's probable responsibility at the
time that he committed the murder, but that Dr. Parwatikar had
opined, in words that more or less tracked the relevant Missouri
statute, that when Mr. Weekley committed the offense he "did not
know or appreciate the nature, quality or wrongfulness of his
conduct and, thus, he was incapable of conforming his conduct to
the requirements of the law."     See Mo. Ann. Stat. § 552.030.1
(subsequently amended to omit the last phrase).          There was
therefore some indication that a defense based on mental defect was
available to Mr. Weekley.


     We emphasize that all this is beside the point if counsel's
intention was to protect Mr. Weekley from an indeterminate sentence


                               -3-
in a mental institution and if such a strategy was a reasonable one
from a professional perspective. The first condition seems to be
admitted by all:     No one has contradicted the fact that the
avoidance of an indeterminate sentence was counsel's aim, and,
indeed, the district court did not find otherwise. We see nothing
inherently unprofessional, moreover, about such a strategy. At
trial, counsel did make some effort to cast doubt on Mr. Weekley's
guilt (there were no eyewitnesses), and Mr. Weekley did not admit
that he had killed his wife (he testified that he blacked out), but
counsel endeavoured mainly to make Mr. Weekley out a sympathetic
character because of his self-inflicted wounds and evident physical
difficulties in an attempt to influence the jury to give him a
light sentence.


     Such a strategy, it seems to us, would be professionally
irresponsible only if Mr. Weekley were opposed to it or were not
adequately informed of his choices, including the choice to proceed
on a combined plea of "not guilty" and "not guilty by reason of
insanity," and would have chosen to proceed on the basis of a
combined plea. See LaRette v. Delo, 44 F.3d 681, 685-86 (8th Cir.
1995), cert. denied, 116 S. Ct. 246 (1995). Mr. Weekley testified
below that his counsel did not adequately explain his options to
him, but counsel asserted otherwise by way of deposition.       The
district court again made no finding of fact on this conflict in
the testimony. But during trial, in a lengthy colloquy that has
been extensively dissected in previous opinions of this court,
and by the court below, Mr. Weekley admitted on the record that
he did indeed understand his pleading options (which the trial
court carefully described to him) and at no time expressed
dissatisfaction with his attorney. Indeed, he affirmatively stated
during this colloquy that he was relying on his counsel and later
during the trial he expressed complete satisfaction with his
counsel's representation. We think that in those circumstances a
finding of fact that accepted Mr. Weekley's self-serving and


                               -4-
late-blooming protestations would have been difficult to uphold on
appeal. We mean it in all sincerity when we say that Mr. Weekley's
sentence must necessarily have caused him some retroactive
dissatisfaction with counsel's efforts.


     Even if counsel in this case had failed to provide Mr. Weekley
with effective assistance, however, we do not believe that he has
shown prejudice.   Mr. Weekley is not entitled to relief unless
"there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 694 (1984).
Despite the use of the word "probability" in this formulation, the
Supreme Court has explained that a reviewing court does not have to
believe that an alternative strategy would more likely than not
have succeeded. Instead, the Court indicated that a "reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Id. We are thus to assume in this case that counsel
had pursued a defense that at least included a plea of "not guilty
by reason of insanity" and ask ourselves whether success with it
would have been reasonably probable. We do not believe that it
would have been for the following reasons.


     1. We are met at the outset with the difficulty that there
are some material facts missing from the hypothetical posture into
which we must put ourselves in order to answer the relevant
question. For instance, we do not know what other psychiatrists
might have said about Mr. Weekley's condition at the time he
committed the offense. If counsel had had Mr. Weekley examined by
another psychiatrist (as the district court indicated reasonably
competent counsel was obligated to do), and that psychiatrist had
found Mr. Weekley mentally sound at the time he committed the
offense, that could have done considerable damage to Mr. Weekley's
case, because, under Missouri law, that finding would have to have
been communicated to the prosecution and could have been used


                               -5-
against Mr. Weekley at trial.    See Mo. Ann. Stat. § 552.030.3,
§ 552.030.5.


     Nor do we know exactly how Dr. Parwatikar would have testified
or, indeed, whether he would have testified at all.          (Under
Missouri law, Dr. Parwatikar's written report itself was admissible
into evidence. See id.) Mr. Weekley has never made an offer of
proof on Dr. Parwatikar's availability or on the contents of his
testimony. It is not a criticism of Dr. Parwatikar's report that
it is somewhat curt, laconic, and conclusory, stating only that he
believed that Mr. Weekley "was suffering from a mental disease or
defect at the time of the alleged crime which made him act on
delusions against his wife," and ending with boilerplate that more
or less parrots the statement of the legal standard of insanity
contained in the language of Mo. Ann. Stat. § 552.030.1 in effect
at the relevant time. It is true that Mr. Weekley almost certainly
suffers from paranoid schizophrenia, but there is nothing in the
report that explains what that is, why it would make him act on
delusions, and, most important, how Mr. Weekley's medical condition
fit with the applicable legal standard. Without such supporting
material, it is not easy to make an accurate prediction about the
effect that Dr. Parwatikar's report or testimony would have had on
the jury.


     2.   We find it significant that Mr. Weekley offers no
additional evidence as to his competence at the time of the
offense, thus distinguishing the present case from Hill v.
Lockhart, 28 F.3d 832 (8th Cir. 1994), cert. denied, 115 S. Ct.
778 (1995). In that case, the petitioner introduced records of his
previous treatment for mental illness that had not been discovered
by his counsel and that contained matters of direct relevance to an
insanity defense that was in fact pursued at trial. Id. at 842,
845-46. In contrast, in this case Mr. Weekley makes no showing
whatever that his medical history was not properly reconstructed by


                                -6-
the doctors who examined him or that it was not adequately
described in the doctors' reports to which counsel had access.


     3. There was some evidence that contradicted Dr. Parwatikar's
conclusion. Dr. Corales's report or testimony to the effect that
he was unable to determine Mr. Weekley's condition at the time of
the murder could have served at least partially to undermine
whatever effect Dr. Parwatikar's report or testimony would have had
on the jury.


     4. Missouri law puts some formidable and carefully wrought
impediments in the way of a defendant wishing to be relieved from
the responsibility for his or her acts on the ground of mental
disease or defect. First of all, the burden is on the defendant to
prove that he or she is not responsible for his or her conduct.
Mo. Ann. Stat. § 552.030.6 provides, moreover, that "[a]ll persons
are presumed to be free of mental disease or defect excluding
responsibility for their conduct." This presumption is conclusive
in the absence of evidence to the contrary and does "not disappear"
upon the introduction of evidence to the contrary.         See id.
Indeed, the statute provides that the presumption "alone [is]
sufficient to take that issue to the trier of fact."        See id.
In other words, a Missouri jury may find a person free of absolving
mental defect even if all the expert testimony is to the contrary.


     5.   If Mr. Weekley had been tried in the way that we are
required to hypothesize, there would have been four possible
outcomes: The jury could have rejected the insanity defense and
sentenced him to life; it could have rejected the defense but been
unable to decide on punishment; it could have found for Mr. Weekley
on his insanity plea, whereupon he would have been indefinitely
committed to a mental institution; or it could have rejected
the insanity defense and sentenced Mr. Weekley to less than a
life term.    We see no rational way of choosing among these


                               -7-
possibilities.   We note, moreover, that the first two putative
outcomes are the same as what actually occurred in Mr. Weekley's
trial and that the third, for all that we know, could well have
turned into their near-equivalent, because Mr. Weekley might have
spent the rest of his life in a mental institution. We cannot see
how it is possible to conclude that the fourth of the hypothesized
outcomes is more likely than any of the others.


     6.    We note that, while pleading in the alternative is
certainly legally permissible, and among lawyers does not come
encumbered with a presumption of double-talk, there is much
respectable opinion to the effect that jurors are put off by it and
regard it with suspicion. In fact, there is considerable empirical
evidence that insanity pleas in and of themselves are not received
favorably by jurors. See, e.g., C. Boehnert, Characteristics of
Successful and Unsuccessful Insanity Pleas, 13 Law and Human
Behavior 31, 34, 36-37 (1989).


     7. Finally, we call attention to some difficulties that an
insanity plea in this particular case would likely have encountered
even if the jury had been otherwise receptive to or neutral with
respect to one. We have read the trial transcript with great care,
and it is clear from that reading that a reasonable jury could have
concluded that Mr. Weekley had been planning to kill his wife and
himself for some time. His own children testified that he asked
them shortly before the shooting what they would do if something
happened to him and their mother; he made arrangements at a bank to
have his money accessible to his son; and there was evidence that
he furtively took the murder weapon from the trunk of his car when
he thought that no one was looking. While people with delusions
are certainly capable of doing these things, actions like these are
hard to square with those of someone who, in the words of the
relevant statute (and of Dr. Parwatikar), "does not know
or appreciate the nature [or] quality ... of his conduct."


                               -8-
See Mo. Ann. Stat. § 552.030.1. It is true that Dr. Parwatikar
also said that in his opinion Mr. Weekley "did not," closely
tracking the words of the statute in effect at the relevant time,
"know ... the wrongfulness of his conduct and, thus, he was
incapable of conforming his conduct to the requirements of the
law."   See id.    Dr. Parwatikar said as well that he thought
Mr. Weekley was acting on delusions that his wife was unfaithful.
But it is wrongful to kill an unfaithful wife, and Dr. Parwatikar
did not say why Mr. Weekley did not know what he was doing was
wrong. In other words, Mr. Weekley's acts are certainly consistent
with someone who was suffering from delusions but not necessarily
with someone who did not know that his act was wrong.


     In sum, we see nothing in this record that would allow us to
conclude that a different result in Mr. Weekley's trial would have
been reasonably probable had his counsel pursued the course that
Mr. Weekley says he should have. That being the case, we reverse
the judgment of the district court.


HENLEY, Senior Circuit Judge, with whom RICHARD S. ARNOLD, Chief
Judge, McMILLIAN, LOKEN and MURPHY, Circuit Judges, join,
concurring and dissenting.


     Agreeing, as I must, with the majority that Weekley is not
entitled to habeas corpus relief on his due process and
incompetency claims, I concur in Part I of the majority opinion.
However, I disagree with its holding that Weekley is not entitled
to relief on his ineffective assistance of counsel claim regarding
withdrawal of his insanity plea, and thus dissent as to Part II of
the majority opinion. Counsel's performance appears to me to have
been both deficient and prejudicial to Weekley. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).




                               -9-
Performance
     As to the performance component of the Strickland test, the
majority holds that "counsel's intention [] to protect Mr. Weekley
from an indeterminate sentence in a mental institution" was a
reasonable trial strategy.      Slip op. at 3-4.      The majority
recognizes that the strategy would be unreasonable if Weekley had
been opposed to it or had not been informed of his pleading
options, and that at the evidentiary hearing in district court
Weekley testified that counsel had not explained his options and
had coerced him into withdrawing his insanity plea. The majority
also recognizes that the district court did not "entirely" believe
counsel's testimony that it was Weekley who insisted on withdrawing
the insanity plea. Id. at 3. However, critical of the district
court's credibility findings, the majority goes on to make its own
findings, crediting counsel's testimony and discrediting Weekley's
testimony.


     Although the district court did not expressly resolve all
                          1
disputes in the testimony, it certainly did not credit counsel's

    1
      For example, Weekley testified that counsel coerced him into
withdrawing the insanity plea by telling him that a client who had
been acquitted by reason of insanity had committed suicide while in
a mental hospital. Counsel did not deny that one of his insanity
acquittees had committed suicide and that Weekley had known about
the incident and had been influenced by it.       However, counsel
denied telling Weekley about it, claiming "somebody, I believe it
was one of the doctors," told Weekley. Although the district court
noted that in an undated letter to counsel Weekley had previously
claimed that counsel had told him about the incident, the court did
not expressly resolve the dispute.
     Certainly, if counsel coerced a client into withdrawing an
insanity plea, counsel's performance would be professionally
unreasonable. Bouchillon v. Collins, 907 F.2d 589, 596 (5th Cir.
1990) (counsel's performance unreasonable where he failed to
investigate insanity defense and "persuaded" defendant into
abandoning defense by telling him that juries reject defense
despite expert testimony); cf. Thomas v. Lockhart, 738 F.2d 304,
309 (8th Cir. 1984) (counsel's performance unreasonable where he
"persuaded" defendant to plead guilty by giving him impression that
"a trial would be an exercise in futility" because of racial


                               -10-
testimony that he had informed Weekley of his options and that
Weekley chose to withdraw the insanity defense. To the contrary,
the district court discredited counsel's testimony and credited
Weekley's testimony, finding as a matter of fact that it was
counsel, not Weekley, who made the decision to withdraw the
insanity plea. The court held:


     Trial counsel fell below the standard of reasonably
     competent representation of his client by deciding when
     he was first hired that the matter would be tried under
     a plea of not guilty and failing to take into account
     information that later came to his attention concerning
     the mental state of his client indicating that the client
     had a mental disease or defect.


Weekley v. Jones, No. 4:88-CV-1602, slip op. at 54-55 (E.D. Mo.
                2
Mar. 15, 1994).


     In support of this holding, throughout its 60-page opinion,
the district court indicated that it was counsel, not Weekley, who
decided to withdraw the insanity plea and proceed on a straight not
guilty plea. For example, the court stated:


     --It is apparent that from the very beginning of his
     employment [counsel] had planned to try the case upon a
     plea of not guilty. Id. at 42.

     --Underlying trial counsel's decision to withdraw the
     plea of not guilty by reason of insanity and to try the
     case on the plea of not guilty was counsel's decision
     from the very beginning that this was a case to be tried
     [on a straight not guilty plea]. Id. at 52.

     --[Counsel] appears to have made up his mind from the
     very beginning that the case was to be tried under a plea



prejudice).
     2
      The district court adopted the report and recommendation of
a magistrate judge.


                               -11-
     of not guilty and closed his mind to any alternative to
     that position . . . . Id. at 54.

     The district court believed it was "apparent" that counsel had
made up his mind from the very beginning to withdraw the insanity
defense because counsel had not, among other things, investigated
Weekley's psychiatric history, "in spite of the continuous and
consistent diagnosis of every doctor who had seen [Weekley] that
[he] was a schizophrenic, suffering from paranoia." Id. at 53.


     In addition, the majority mischaracterizes Weekley's testimony
at the evidentiary hearing as "late-blooming."      Slip op. at 5.
Although at the change of plea hearing, Weekley eventually told the
court that he understood his pleading options and that he was
withdrawing the plea voluntarily, his statement came only after the
following exchange:

     COURT: Now, do you want to withdraw the defense of mental
     disease or defect which excludes responsibility, Mr.
     Weekley?

     COUNSEL: Judge, he may not understand all those legal
     terms. May I ask him this way?

     COURT:    Certainly.

     COUNSEL: Do you understand, Mr. Weekley, that when we
     withdraw and if we withdraw the Plea of Not Guilty by
     Reason of Mental Illness or Disease or Capacity, we are
     not entering a Plea of Guilty. We are going to proceed
     to trial on your Plea of Not Guilty that you did not slay
     your wife, that you did not commit Murder in the Second
     Degree, do you understand that?

     WEEKLEY:    Yeah.

     COUNSEL: And that's what we discussed and that's what
     you wanted to do, isn't that correct?

     WEEKLY:    Well.
                                                   ****




                               -12-
     COURT:   Maybe I could put it a different way than
     [counsel]. What we're saying to you is do you want to
     plead insanity in this case; that is, that you weren't
     responsible for your actions?

     WEEKLEY: I understand what you mean, but I don't know
     what to say. I actually don't.

     COUNSEL: I believe we have to rely upon his lawyer in
     this case and I have to take the full responsibility
                                                        3
                                                          for
     the sake of the record. Mr. Weekley and his wife and
     myself discussed this matter at length. . . . [I]t was
     Mr. Weekley's desire that he invoke the defense of Not
     Guilty. Mr. Weekley by the very act of the offense does
     not remember . . . a lot of things that took place. He
     was, you know, seriously injured himself, but he feels
     that he is not guilty of Manslaughter, is that right?

     MRS. WEEKLEY:    For whatever reason.

     COUNSEL:    I mean Murder      in the Second Degree or
     Manslaughter or anything.      He does not feel that he
     killed his wife.

     COURT: Mrs. Weekley, I'll have to rely on you somewhat.
     Do you feel that it's your husband's best interest to
     withdraw this Plea of Not Guilty by Reason of Mental
     Disease or Defect?

     MRS. WEEKLEY: I don't know. . . . I do bedpans, you do
     lawbooks, okay?
                                      ****

     PROSECUTOR:   Your Honor, I hate to interrupt, but I
     believe . . . that they can go with also Not Guilty and
     Not Guilty by Reason of Insanity and combine the two.

     COURT:    Yes, you can raise both defenses at the same time
     if you   want or you can raise one or the other. In other
     words,   you can plead Not Guilty or Not Guilty and Not
     Guilty    by Reason of Mental Disease or Defect or Not
     Guilty   by the Reason of Mental Disease or Defect.

     COUNSEL: Well, the only reason we're here is we thought
     we were trying him on the grounds that he was Not Guilty.
     That's what you hired us for.


     3
      Weekley married a nurse he met while hospitalized following
the shooting.


                                 -13-
Trial Transcript at 114-18. The district court extensively noted
the above colloquy, which fully supports its finding that it was
counsel, not Weekley, who insisted on withdrawing the insanity plea
and proceeding on a straight not guilty plea.


     Moreover, counsel's failure to investigate Weekley's mental
history is not "beside the point." Slip op. at 3. Even assuming
that counsel's strategy was based on Weekley's desire to avoid an
indefinite commitment in a mental hospital, I agree with the
district court's alternative holding that such a strategy was
unreasonable in the circumstances. Although "'[t]he reasonableness
of counsel's actions may be determined or substantially influenced
by the defendant's own statements or actions[,]'" LaRette v. Delo,
44 F.3d 681, 685 (8th Cir.) (quoting Strickland, 466 U.S. at 691),
cert. denied, 116 S. Ct. 246 (1995), it does not necessarily follow
that an attorney may blindly follow a client's uncounselled wishes.
"The reason lawyers may not 'blindly follow' such commands is that
although the decision to use [insanity] evidence in court is for
the client, the lawyer first must evaluate potential avenues and
advise the client of those offering merit."            Thompson v.
Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986) (internal citation
omitted), cert. denied, 481 U.S. 1042 (1987).           "Reasonable
performance of counsel includes an adequate investigation of facts,
consideration of viable theories, and development of evidence to
support those theories." Hill v. Lockhart, 28 F.3d 832, 837 (8th
Cir. 1994) (internal quotation omitted), cert. denied, 115 S. Ct.
778 (1995). We have observed that "strategy resulting from lack of
diligence in preparation and investigation is not protected by the
presumption in favor of counsel." Kenley v. Armontrout, 937 F.2d
1298, 1304 (8th Cir.), cert. denied, 502 U.S. 964 (1991).


     It is undisputed that counsel did not obtain, review, or even
request records of Weekley's repeated hospitalizations for paranoid
ideations directed towards his wife, which I find unreasonable


                               -14-
given counsel's testimony that a psychotic episode would be a
significant factor in deciding whether to present an insanity
defense. I also find surprising counsel's admission that he took
no steps to ensure that Weekley understood the consequences of
withdrawing the insanity plea and proceeding on a straight not
guilty plea.    To me, counsel's "explanation that he did not
investigate . . . because of [Weekley's] request," or attempt to
ensure that Weekley understood the consequences of the various
pleas, is "especially disturbing," because counsel was aware of
Weekley's "mental difficulties." Thompson, 787 F.2d at 1451. Even
though Dr. Parwatikar concluded that Weekley, having been
medicated, was competent to stand trial, he nonetheless reported
that Weekley had a "thinking disorder . . . complicated by his
borderline mental retardation which ma[de] it difficult for him to
use proper judgment." It has been held that "[a]n attorney has
expanded duties when representing a client whose condition prevents
him from exercising proper judgment." Id.

Prejudice
     The majority also concludes that even if counsel had performed
deficiently, Weekley cannot prevail because he has not shown that
the performance prejudiced the outcome of the trial. I disagree.


     1. The majority believes that it cannot make an "accurate
prediction" about the effect of Dr. Parwatikar's report on the
jury, characterizing the report as "curt, laconic, and conclusory."
Slip op. at 6.    The majority mischaracterizes the report.     The
report did not "only" state that "Mr. Weekley was suffering from a
mental disease or defect at the time of the alleged crime which
made him act on his delusions against his wife" and "end[] with
boilerplate that more or less parrots the statement of insanity."
Id.    Rather, the seven-page single-spaced typewritten report
details, among other things, Weekley's psychiatric, family and
social history and the results of physical, mental status, and


                               -15-
psychological examinations. Moreover, Dr. Parwatikar discusses why
he believed Weekley was insane at the time of the offense. I set
forth below some relevant portions of the November 4, 1978 report:

     II.   PAST PSYCHIATRIC HISTORY
     Mr. Weekley has been admitted several times for
     psychiatric illness dating back to March 4, 1973. At
     that time he was an inpatient in St. Vincent's Hospital
     in St. Louis, Missouri. Reports indicate that he was
     acutely agitated and quite paranoid, paranoid ideas being
     directed toward his wife. He felt that she was having
     multiple affairs and had hired two gangs to kill him. He
     was placed on medication and was subsequently discharged
     to his wife. Later on, he had admissions to Farmington
     State hospital in 1976 and 1977 and also was treated on
     an out-patient basis at the V.A. Hospital in Poplar Bluff
     and at the Malcolm Bliss Mental Health Center in St.
     Louis. During most of his hospitalizations, he exhibited
     paranoid ideations, hallucinations and delusions, and at
     times had threatened to kill his wife or himself. Most
     of his readmissions were precipitated by him not taking
     his prescribed medication.

                                       ****
     V.    MENTAL STATUS EXAMINATION

                                       ****

     Thought Content: When asked to describe how he ended up
     at Farmington State Hospital, Mr. Weekley stated, "They
     told me I killed my wife. . . .        I don't remember
     anything." When asked to recall whatever he could during
     that period of time, he stated that just prior to this
     incident he was thinking about going to St. Vincent's
     Hospital because he was getting very nervous. In fact,
     he was so nervous that he had taken a trip to Arkansas
     without any reason and was coming back. When asked to
     describe his nervousness . . ., he stated, "I was just
     pacing around. I was nervous, shaky all over." When
     asked to describe his illness in the past, he stated that
     he had been to St. Vincent's Hospital in 1973 and,
     although he does not remember all the circumstances
     surrounding the hospital admissions, he stated that his
     mom had told him that he was constantly walking, pacing
     and crying very easily. He also readily admitted that he
     always thought that his wife was running around with his
     best friend. He also said that at one point he could see


                                -16-
rat poison in his oatmeal, and he told her son, "She was
trying to get little green men to put acid in my
shoes.". . . When asked how he was able to get the gun,
he stated . . . he does not remember . . . how he got
hold of it. . . . When asked how he was able to get
better from his sickness, he stated that medication
always made him feel good very quickly and he was able to
start feeling better.    When asked why he discontinued
medication, he stated that after discharge, it would be
either too far for him to go to the outpatient clinic or
nobody would worry whether he took medication or not.
When asked how he feels right now, he stated, "I don't
believe I did this. I really loved her. I miss her.
Even my family tells me I must have been sick to have
done that. I'm going to take my medication regularly now
and I'm going to get rid of all those guns. . . ."

Insight and Judgment: . . . He states that he was very
sick and was not on medication, thus he does not remember
anything that went on at that time. . . . He does not
hesitate to admit that he felt very paranoid about his
wife, particularly her trying to kill him as well as her
running around with other people. He also admits to the
fact that whenever he was sick, he used to feel that she
was doing all these things to him. . . .

VI.   PSYCHOLOGICAL TEST
Psychological tests . . . indicate that he is functioning
at a borderline retarded range of intelligence, his IQ
being 71 . . . [and has] little ability to cope with
daily demands or to handle his emotions.

           ****
IX.   DIAGNOSIS
295.35 Schizophrenia, Paranoid Type, in remission
310.4 Borderline Mental Retardation with some organic
impairment in verbal areas
907.1 Post gunshot wound injuries with complications (on
treatment)




                           -17-
X.    DISCUSSION
This 40 year old . . . male currently does not show
symptoms of psychosis except inappropriateness of affect
and passive delusions in the sense that he still believes
that his wife was trying to poison him as well as running
around with his best friend. Delusions [are] ideas which
are not in keeping with one's cultural realities, thus
these thoughts must be considered as delusions because if
his wife were [trying] to get rid of him, she had ample
opportunities to do so. . . .

The medication has helped him get back into reality and
look at the situation much more objectively. Although I
have made the diagnosis of schizophrenia, paranoid type,
it appears that his moods fluctuate quite frequently
between   agressivity,   paranoid   thinking   and   then
depression, which is more or less indicative of manic-
depressive or schizo-affective schizophrenia. The past
history indicates that has been going through this
particular disorder quite periodically, particularly when
he is not taking his medication regularly and has shown
consistently the same symptomalogy, including the
paranoid ideation toward his wife. His thinking disorder
is also complicated by his borderline mental retardation
which makes it difficult for him to use proper judgment
in reality. . . .
                           ****

Since this condition has been long-standing and
schizophreni[a] cannot be "cured" but only arrested with
ongoing medication, it is my opinion that he was
suffering from a mental disease or defect at the time of
the alleged crime which made him act on his delusions
against his wife. . . .

                                  ****
XI.    FINDINGS
1) Mr. James Weekley has a mental disease or defect
within the meaning of Section 552.010.
2) At this time, having been treated . . ., he has the
capacity to understand the proceedings against him and to
assist in his own defense.
3)Reviewing the history as well as previous exacerbations
of his mental illness and the delusional patterns, it is
my opinion that at the time of the alleged criminal
conduct he did not know or appreciate the nature, quality
or wrongfulness of his conduct and, thus, he was
incapable of conforming his conduct to the requirements
of the law.


                          -18-
     4)Considering his partially improved mental condition and
     need   to  stabilize   his   medications   as   well   as
     reconstruction of his jaw to prevent further physical
     deterioration, he needs to be hospitalized pending
     further proceedings.

     XII.   RECOMMENDATIONS

                                       ****

     2) It is recommended that he be considered not guilty by
     reason of insanity and committed to the Department of
     Mental Health for treatment and rehabilitation.

(Emphasis added.)


     In sum, Weekley was a man who since 1973 had been repeatedly
hospitalized following paranoid delusions and hallucinations that
his wife was trying to kill him. Although while hospitalized, he
would improve with medication which "helped him get back to
reality," on discharge Weekley would discontinue his medication,
causing the return of the delusions and hallucinations. Weekley's
delusions--including his belief that his wife had sent "little
green men" to kill him--were "not in keeping with [] reality." In
killing his wife, Weekley acted on his delusions and his
schizophrenia and borderline mental retardation prevented him from
"know[ing] or appreciat[ing] the nature, quality, or wrongfulness
of his conduct, and . . . conforming his conduct to the
requirements of the law."


     Nor do I believe that we have to "make an accurate prediction"
about the effect of the report on the jury. Slip op. at 6. As the
majority recognizes:


     [d]espite the use of the word "probability" in th[e
     Strickland] formulation, the Supreme Court has explained
     that a reviewing court does not have to believe that an
     alternative strategy would more likely than not have
     succeeded.    Instead, the Court indicated that a



                               -19-
     "reasonable probability is a probability sufficient to
     undermine confidence in the outcome."


Id. at 5 (quoting Strickland, 466 U.S. at 694). Even if counsel
only had introduced Dr. Parwatikar's report, my confidence in the
outcome of the trial is undermined.         Although the majority
hypothesizes that another doctor might have found Weekley sane at
the time of the offense, I do not think that is a reasonable
hypothesis given that Weekley's paranoid schizophrenia was long-
standing and incurable.    See Hill v. Lockhart, 28 F.3d at 841
(psychologist explained "because [defendant's] medical records
suggested a history of chronic paranoid schizophrenia, it would be
reasonable to assume that [he] has been to some degree [a] paranoid
schizophrenic for a long time, including the period of the events
in question") (internal quotation omitted).


     2. The majority faults Weekley for not offering additional
evidence of his insanity at the time of the offense and
distinguishes this case from Hill.     In Hill, the defendant was
convicted for the murder of a state game and fish commissioner and
presented an insanity defense based on paranoid schizophrenia
manifested by a violent and uncontrollable reaction "to a person in
uniform." Id. As I read Hill, while the trial attorneys requested
records of Hill's previous treatment for paranoid schizophrenia,
they "did not obtain all of his medical records before trial and []
never introduced the medical records that they did have."       Id.
However, in    large part, this court found that the attorneys'
performance was not deficient because "much of the most useful
information included in those records was alluded to in the
testimony of the clinical psychologist who testified for the
defense."    Id.    Indeed, the only part of the guilt phase
performance that the court found deficient was the attorneys'
failure to question the psychologist regarding information in the
records and his report indicating that Hill had stopped taking



                               -20-
anti-psychotic medication several weeks before the murder.    The
court believed that an insanity defense based on failure to take
medication was an "obvious one" and "more believable than the one
                                 4
actually presented." Id. at 842.

     While it is true that Weekley did not have a second evaluation
indicating he was insane at the time of the crime, in Hill the
attorneys had the defendant examined by a second mental health
professional because they needed "to find some expert testimony to
refute the conclusions of the court-ordered evaluation[,]" which
found Hill sane at the time of the offense. Id. at 841 (internal
quotation omitted). In the present case, Dr. Parwatikar examined
Weekley pursuant to court order, and, as counsel conceded, the
doctor's report would be "strong [and] persuasive" evidence for the
jury because counsel could tell the jury, "Here's somebody I didn't
hire."


     3. Dr. Corales' report does not undermine Dr. Parwatikar's
opinion that Weekley was insane at the time of the offense. Dr.
Corales noted Weekley's repeated hospitalizations dating back to
1973 for "paranoid ideations which were directed towards his wife,
who he felt was having multiple affairs and [had] hired two gangs
to kill him" and that Weekley reported seeing "small people, who he
had seen in the past as they were putting acid in his boots and
wanted to kill him." Although Dr. Corales found that Weekley was
incompetent to stand trial and diagnosed him as a paranoid
schizophrenic, he did not comment on the question whether Weekley
was insane at the time of the offense because of "lack of
supporting material." In contrast, Dr. Parwatikar found Weekley--


    4
     In the present case, as the district court noted, "[a]t least
insanity would have given a reason for what occurred. [Weekley's]
testimony gave no reason, except that he blacked out." Weekley v.
Jones, No. 4:88-CV-1602, slip op. at 52. Indeed, counsel admitted
that insanity was the only viable defense that Weekley had.


                               -21-
having been medicated--competent to stand trial, but--based on his
review of the "ward reports, previous history, medical records,
psychological testing, [and] personal interviews"--concluded that
Weekley was insane at the time of the offense.


     4.    Even though the jury could consider the statutory
presumption of sanity, at a minimum, had counsel introduced Dr.
Parwatikar's report detailing Weekley's long-standing paranoid
schizophrenia, I am not confident that the jury would have voted to
convict.


     5. The majority sees no rational way of choosing among four
possible outcomes of the trial had evidence of Weekley's mental
history been introduced. I am not aware that Strickland requires
this court to predict which outcome would be more likely.        In
addition, although the majority believes, apparently as a practical
matter, that an indefinite commitment to a mental hospital is the
"near equivalent" of a life sentence, slip op. at 8, the Supreme
Court has held that "confinement in prison is punitive and hence
more onerous than confinement in a mental hospital[.]" Heller v.
Doe, 113 S. Ct. 2637, 2645 (1993). See also Foucha v. Louisiana,
504 U.S. 71, 80 (1992) ("[a] State, pursuant to its police power,
may of course imprison convicted criminals for the purposes of
deterrence and retribution" but has no punitive interest in an
insanity   acquittee,   who  was   "exempted   []   from   criminal
responsibility").


     6.   It may well be that juries are "put off" by insanity
pleas.   Slip op. at 8.     However, a "bias against a claim of
insanity does not justify a failure to investigate" or present the
defense if the circumstances so warrant. Bouchillon v. Collins,
907 F.2d 589, 596 n.24 (5th Cir. 1990). In fact, the study cited
by the majority, Boehnert, Characteristics of Successful and
Unsuccessful Insanity Pleas, 13 Law and Human Behavior 31 (1989),


                               -22-
suggests that if counsel had presented an insanity defense Weekley
might have been successful. The study, which compared insanity
acquittees with "unsuccessful attemptees," found "[s]ignificantly
more successful acquittees had been found incompetent to stand
trial at an earlier stage in their trial" and were "more likely to
have lower intelligence and more impaired reality testing" than the
attemptees. Id. at 36.

     7.   I do not deny that the state may have produced some
evidence from which a reasonable jury could have inferred that
Weekley was planning to kill his wife.    However, the fact that
there is evidence tending to support the jury's verdict does not
defeat Weekley's claim 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.   In Kyles v. Whitley, 115 S. Ct. 1555, 1566 (1995), the
Supreme Court made clear that the "reasonable probability" standard
                                          5
"is not a sufficiency of evidence test."


     In the present case, evidence that Weekley had planned to kill
his wife is consistent with his long-standing history of paranoid
thoughts and threats to his wife which resulted in repeated
hospitalizations dating back to 1973. This is not, as the majority
suggests, a case of a domestic shooting by a jealous husband who
knew what he was doing and that it was wrong. Although it is true
that Weekley believed that his wife was having affairs, he also
believed that she was trying to kill him by having "little green
men" put acid in his shoes.     In these circumstances, I am not
confident that the jury would conclude that Weekley knew what he
was doing or appreciated the wrongfulness of his conduct.


    5
     Although Kyles concerns the "reasonable probability" standard
in the context of a suppression of evidence claim, the Court made
clear that the standard was modelled after the Strickland prejudice
standard. 115 S. Ct. at 1566.


                               -23-
     For the foregoing reasons, I would affirm the district court's
judgment granting Weekley's petition for a writ of habeas corpus on
the ground that he was denied effective assistance of counsel in
regard to the withdrawal of his insanity plea.


     A true copy.


          Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                               -24-
