                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 06-2184
LESLIE STANLEY,
                                               Petitioner-Appellee,
                                v.

KEN BARTLEY,
                                            Respondent-Appellant.
                         ____________
            Appeal from the United States District Court
                 for the Southern District of Illinois.
            No. 00-895-DRH—David R. Herndon, Judge.
                         ____________
    ARGUED SEPTEMBER 7, 2006—DECIDED OCTOBER 17, 2006
                         ____________


  Before POSNER, EASTERBROOK, and RIPPLE, Circuit Judges.
  POSNER, Circuit Judge. In 1994 Leslie Stanley was tried by
a jury and convicted of the first-degree murder the year
before of Sammie Wilborn, and was sentenced to 35 years in
prison. After exhausting his state remedies, People v. Stanley,
775 N.E.2d 1078 (Ill. App. 2000) (unpublished opinion),
petition for leave to appeal denied, 738 N.E.2d 934 (Ill. 2000)
(without opinion), he sought habeas corpus, claiming that
his trial lawyer had given him ineffective assistance. He
prevailed in the district court after an evidentiary hearing,
and the state appeals.
2                                               No. 06-2184

  According to the state’s key witness, James Dean, Dean
was a passenger with Stanley and Wilborn in Stanley’s car
around midnight on December 21, 1993, cruising the
slums of Centreville, Illinois. All three were members of
the “Metros” gang and Dean and Wilborn had been snort-
ing cocaine. Wilborn said he had to pee and Stanley stopped
the car and he and Wilborn got out. Dean watched the two
of them because he had seen an automatic pistol, black with
a brown handle, of German make, on the seat beside
Dean—and now it was gone. Stanley stood behind Wilborn
while the latter was urinating and Dean saw Stanley shoot
Wilborn in the back. After hearing a second shot, Dean took
off running, and heard another shot. He did not report the
shooting to anyone. Wilborn was later found dead in a
street. Stanley visited Dean a few days later and told him,
according to Dean, that Wilborn “had messed . . . up” an
eight-ball of cocaine that Stanley had given him.
  A cocaine addict and convicted felon, Dean was not a
highly credible witness; after all, he might well have been
the murderer. But Stanley’s sister, Dwana Stanley, also
testified at trial. The prosecutor led off his questioning
of her by saying “I’m going to call your attention to Decem-
ber 22nd, on the morning, early morning of December 22nd
of last year” (1993). She then testified that her brother had
come into her bedroom about 10 p.m. (which would have
been before the shooting, but her statement to the police had
said that her brother had come into her room at midnight)
and told her that he wanted to talk to her and that he’d
“shot somebody, killed somebody.” A short time later, her
testimony continued, he had come back into her room, and
he had a gun with him, “a little black, I guess, twenty-two,”
with a clip (which would indicate that it was an automatic
rather than a revolver); .22 caliber casings were found by
Wilborn’s body, though the gun itself was never found.
No. 06-2184                                                  3

  There were other witnesses, but their testimony was
distinctly secondary. It was the combination of Dean’s and
Dwana Stanley’s evidence that convicted Leslie Stanley.
  His lawyer, who had had only one brief meeting with his
client before the trial, prepared for the trial by reading the
statements that prospective witnesses had given the police.
He did not interview any of them, though he may (he
was not sure) have encountered Dwana Stanley briefly
in the hallway outside the courtroom shortly before the trial
began. His trial strategy, he explained in the postconviction
proceedings, was to listen to the witnesses’ direct testimony
and cross-examine them regarding any discrepancies
between that testimony and their pretrial statements that
were harmful to his client.
   Among the prospective witnesses whom he neither
interviewed nor called as a witness was Robert Brock. The
state didn’t call Brock as a witness either; so he did not
testify at the trial. Brock’s brief statement to the police had
reported that a few hours before the murder Dean (the
state’s principal witness) and Wilborn (the murder victim)
had had a quarrel over a cocaine shooter, and the quarrel
had involved pushing and shoving. In cross-examining
Dean, the defendant’s lawyer asked him whether he’d had
an “argument” with Wilborn, and Dean said yes. But he
answered “no” to the lawyer’s further question whether
it had been “a pretty good argument” involving “pushing
and shoving.” Dean said it had not been “serious.” Not only
was this inconsistent with Brock’s statement, which the
lawyer had, but at the federal habeas corpus hearing Brock
testified that in the course of the “quarrel” Wilborn had
struck Dean with a wine bottle and Dean had punched
Wilborn in the head and knocked him down and that
when the fight was over Dean had told Wilborn ominously,
4                                              No. 06-2184

“I’ll catch your ass later on.” Brock also testified that
Wilborn was despised by the other Metros.
  Had he been interviewed by the defendant’s lawyer,
Brock might have told him these details. That would
have enabled a damaging cross-examination of Dean,
who may have been the murderer—a suspicion that
would have been heightened by his denying that his fight
that day with Wilborn was serious. Brock’s testimony
indicated that Dean had a motive to kill Wilborn. And
he had as good an opportunity as Stanley to do so.
   The jury would have been particularly unlikely to have
convicted Stanley had it not been for the testimony of his
sister. The prosecutor told the jury in his closing argu-
ment that “the thing that corroborates Mr. Dean’s testimony
over anything else in this case, is the testimony of Leslie
Stanley’s own flesh and blood, Dwana, his sister, the wife
and mother of four, who lived in the house where Leslie
Stanley lived.” She had told the police that she’d seen him
with a gun not on the night of his confession to her but a
week before. And in the postconviction proceedings she
testified that he might have “confessed” to her not on
December 21 or 22 but on December 15, a week before the
murder, which was consistent with her having thought
she’d seen the gun then and with her testimony at trial that
her brother had seemed to be drinking the night he con-
fessed and when he drank he was “always saying like he’s
gonna beat someone up, or kill him a nigger, or something
like that.”
  The defendant’s lawyer didn’t cross-examine her at trial
about the date of the confession or the date on which
she had seen her brother with the gun. And he failed to
object to the prosecutor’s having led her by prefacing his
No. 06-2184                                                   5

question about the confession with the statement that he
was directing her attention to the night of the murder.
  And Dean, when he testified in the postconviction
proceedings, said that he had been drinking the night of the
murder (he had denied that at trial), that he hadn’t seen
the defendant shoot Wilborn, and that in fact he didn’t
“know who had the gun, really, man.”
  The Illinois courts nevertheless determined that the
lawyer’s assistance to defendant Stanley had not been
ineffective. If in so determining the courts applied the
correct constitutional standard, that of Strickland v. Washing-
ton, 466 U.S. 668 (1984), we must affirm unless convinced
that the determination was unreasonable, Brown v. Payton,
544 U.S. 133, 141 (2005); Eckstein v. Kingston, 460 F.3d 844,
848 (7th Cir. 2006), while if they applied the wrong standard
we must apply the correct one ourselves. Williams v. Taylor,
529 U.S. 362, 405-06 (2000); Martin v. Grosshans, 424 F.3d 588,
592 (7th Cir. 2005). In Stanley’s direct appeal, after correctly
reciting the Strickland standard, the Illinois Appellate Court
concluded that even if (as the court did not believe) his
lawyer’s performance had fallen below minimum profes-
sional standards, “Stanley was not so prejudiced by any
of the alleged mistakes that the outcome of the trial
would have been any different.” That was incorrect; to show
the requisite prejudice from incompetent representation, all
Stanley had to show was, as the court earlier had correctly
stated, “a reasonable probability that, but for counsel’s
unprofessional errors, the outcome of the trial would have
been different.” To show a reasonable probability of a
different outcome is a less demanding burden than to show
that the outcome would have been different. But the Illinois
court is entitled to the benefit of the doubt. Having ex-
pounded the well-known standard correctly on the previous
6                                                 No. 06-2184

page of its opinion, it is more likely that the court stated its
conclusion imprecisely than that it applied a different
standard. Woodford v. Visciotti, 537 U.S. 19 (2002) (per
curiam); Floyd v. Hanks, 364 F.3d 847, 852 (7th Cir. 2004);
White v. Roper, 416 F.3d 728, 732-33 (8th Cir. 2005); Parker v.
Secretary for Dept. of Corrections, 331 F.3d 764, 785-86 (11th
Cir. 2003).
  But this makes no difference to the outcome of the
state’s appeal, because the state courts’ determination that
Stanley had had effective assistance of counsel at his trial
was an unreasonable application of the Strickland standard.
The state does not even bother to defend the ruling that the
lawyer provided minimally competent representation. To
fail to interview any witnesses or prospective witnesses was
a shocking dereliction of professional duty in a case
in which the state’s evidence, though sufficient to con-
vict the defendant of murder beyond a reasonable doubt,
was far from compelling. Davis v. Lambert, 388 F.3d 1052,
1064 (7th Cir. 2004); Washington v. Smith, 219 F.3d 620, 633-
34 (7th Cir. 2000); Montgomery v. Petersen, 846 F.2d 407 (7th
Cir. 1988); Anderson v. Johnson, 338 F.3d 382, 393-94 (5th Cir.
2003); Lord v. Wood, 184 F.3d 1083, 1095-96 (9th Cir. 1999);
United States v. Gray, 878 F.2d 702, 713-14 (3d Cir. 1989). The
lawyer could not know how complete or accurate a prospec-
tive witness’s statement to the police was without talking to
the witness. Of course it is possible that interviewing Dean
and Dwana Stanley and Brock would have revealed nothing
of value to the defense. The testimony they gave at the
postconviction proceedings came years after the trial and
they might not have told the lawyer the same things before
the trial. But that is the issue not of the lawyer’s competence
but of the consequences of his incompetence, to which we
now turn.
No. 06-2184                                                   7

  When a defendant’s lawyer has failed to interview key
actual or potential witnesses, as in this case, and in
postconviction proceedings the witnesses give testimony
that the defendant contends a competent lawyer could have
elicited by interviewing them before trial and could have
used effectively at the trial, two questions arise. The first is
whether they actually would have told the lawyer the
same thing before trial, and the second is whether, if
they had, the defendant would have had a reasonable
chance of being acquitted. Although it is entirely possible
that Dean and Dwana Stanley and Robert Brock said
things at the postconviction proceedings that they would
not have confided to the defendant’s lawyer before trial, the
state courts made no findings on the question. The courts
did make clear that they didn’t believe that Dwana Stanley
had received her brother’s “confession” a week before the
murder, but that is irrelevant. The question is whether she
would have so testified had the lawyer interviewed her and
at the interview explored her admitted dubiety about the
date, and if so whether the jury would have discredited the
confession. Kyles v. Whitley, 514 U.S. 419, 435 (1995). For the
issue is not whether Stanley is innocent, but whether if he
had had a competent lawyer he would have had a reason-
able chance (it needn’t be a 50 percent or greater chance,
Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001)) of being
acquitted; given that guilt must be proved beyond a reason-
able doubt, guilty people are often acquitted.
   Similarly, Dean, had the lawyer interviewed him before
trial, might have told the lawyer things about the murder,
the gun, and the fight with Wilborn that would have
enabled effective cross-examination. And if the lawyer
had interviewed Brock, and Brock had told him the same
things that he later testified to in the habeas corpus hearing,
the lawyer would not have been content with Dean’s reply
8                                                No. 06-2184

on cross-examination that there was no pushing and
shoving and that it wasn’t even a serious “argument.” Had
Dean persisted in these denials, Brock could have been
called as a defense witness. Dean might have been thor-
oughly discredited. Had the jury thought him a liar and
possibly the murderer, and Dwana Stanley an unreliable
witness because of uncertainty about dates, Leslie Stanley
would have had a decent shot at acquittal. The state courts’
contrary conclusion is not reasonable, and so the judg-
ment of the district court is
                                                  AFFIRMED.

A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




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