Felicia Aries Morgan v. Kristine Krenke

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4160
FELICIA ARIES MORGAN,
Petitioner-Appellee,
v.
KRISTINE KRENKE,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 96-C-1176--Lynn Adelman, Judge.
Argued September 7, 2000--Decided November 13,
2000
Before BAUER, POSNER, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Early one morning
in October of 1991, 17-year-old Felicia
Morgan and two friends went on a
senseless and incomprehensible 15-minute
crime spree on Milwaukee’s north side.
They committed several armed robberies,
motivated by nothing more meaningful than
the desire to steal jewelry or clothing
from a bevy of victims. But robbery
target Brenda Adams did not go quietly.
When Adams refused to give up her leather
trench coat, Morgan shot and killed her.
Morgan then ran off with the coat.
At her state trial on multiple charges
growing out of these chilling events,
Morgan entered pleas of not guilty and
not guilty by reason of mental disease or
defect pursuant to a Wisconsin procedural
statute, sec. 971.165. Under that
statute, a trial is bifurcated into two
parts. The first deals with guilt and the
second with responsibility.
Morgan proceeded to trial before a jury
in the Milwaukee courtroom of Circuit
Judge Michael D. Guolee. In the guilt
phase, Morgan was convicted of first

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degree intentional homicide while armed,
five counts of armed robbery, and one
count of attempted armed robbery. In the
second phase, the jury rejected her plea
of not guilty by reason of mental disease
or defect. She was sentenced to a life
term on the homicide and assorted other
terms on the robberies. The Wisconsin
Court of Appeals upheld her convictions
(see State v. Morgan, 195 Wis. 2d 388
(1995)) and the Wisconsin Supreme Court
denied review. Morgan then filed a habeas
corpus petition pursuant to 28 U.S.C.
sec. 2254 in the federal district court.
The district court granted the petition,
adecision the State of Wisconsin now
appeals.
In her habeas petition, Morgan claimed
that the state trial judge’s exclusion of
lay and expert opinion testimony
regarding her mental condition during the
guilt phase of her trial violated her
constitutional rights to due process of
law, to present a defense, and to testify
in her own behalf. Morgan said she
suffered from post-traumatic stress
disorder and that events just prior to
the murder triggered a trance-like state,
consistent with PTSD, which cast doubt on
whether she had the specific intent to
shoot Adams. In granting her habeas
petition, the district court parsed her
evidence into four categories: expert
opinion testimony on the ultimate issue
of capacity to form intent; other expert
psychiatric testimony that Morgan
suffered from PTSD; lay testimony
regarding Morgan’s "psycho-social
history"; and Morgan’s own testimony.
With the exception of the first, the
district court found that exclusion of
the evidence violated Morgan’s
constitutional rights.
To state more precisely what Morgan’s
claim is requires a brief explanation of
Wisconsin’s bifurcated trial system,
which in one form or another dates back
to 1878. The current version, codified at
sec. 971.165 Wis. Stat., controls the
admission of psychiatric testimony on a
defendant’s intent to commit a crime. In
general, the Wisconsin law sets out a
sequential order of proof in which
psychiatric testimony regarding a
defendant’s capacity to form intent is
relevant only in the responsibility
(second) phase of the trial, not the
guilt phase. The precise scope of the

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exclusion of psychiatric testimony as to
intent has been the subject of a fair
number of decisions of the Wisconsin
courts and, from time to time, from this
court as well. An interesting series of
cases reveals the federal-state tension
this procedure has provoked. In Hughes v.
Mathews, 576 F.2d 1250 (7th Cir. 1987),
we held a conviction invalid where
psychiatric testimony as to intent was
excluded in a single-stage trial. For a
short time the Wisconsin Supreme Court
went along with us and, in Schimmel v.
State, 84 Wis. 2d 287 (1978), applied our
rationale to the Wisconsin bifurcated
trial system. But just 2 years later, the
Wisconsin Supreme Court took a closer
look at the issue in Steele v. State, 97
Wis. 2d 72 (1980), and reasserted its
former stand excluding psychiatric
testimony as to a defendant’s capacity to
form intent during the guilt (first)
phase of a bifurcated trial. We, in turn,
reconsidered the issue in Muench v.
Israel, 715 F.2d 1124 (7th Cir. 1983),
concluding that a state may
constitutionally exclude expert testimony
offered to show that a defendant lacked
the capacity to form specific intent.
Steele, authored by former Chief Justice
Nathan S. Heffernan, is Wisconsin’s
definitive opinion on the issue at hand.
Its holding is premised on Wisconsin’s
skepticism about the reliability of
psychiatric opinion evidence offered to
show a causal link between a defendant’s
mental disease and the capacity to form
an intent to commit the crime alleged.
The court found evidence of that sort to
be lacking in trustworthiness and
reliability. It is, in Justice
Heffernan’s words, "neither competent,
relevant, nor probative . . . ." 97 Wis.
2d at 97. In other words, in Wisconsin "a
finding of insanity is not a finding of
an inability to intend." State v. Repp,
122 Wis. 2d 246, 261 (1985). It is
important to note that psychiatric
evidence is admissible during a trial’s
responsibility phase where the issue
involves more a moral than a legal
question; the determination of capacity
to form intent in the criminal law sense
requires "a fine tuning of an entirely
different nature" than that required for
the determination of whether or not there
should be criminal responsibility:
"Whether or not there should be criminal
responsibility is essentially a moral

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issue." Steele, at 96.
There has been some erosion of the
general principle set out in Steele. For
instance, psychiatric evidence regarding
the capacity to form intent based solely
on a defendant’s voluntary intoxication
is admissible. State v. Flattum, 122 Wis.
2d 282 (1985), reaffirmed that under
Steele psychiatric opinion testimony is
prohibited on the issue of capacity to
form intent when the opinion is based on
a defendant’s mental health history and
restated Wisconsin’s skepticism "in the
ability of psychiatry to causally link
psychiatric disorders to a lack of
capacity to form specific intent." At
297. The court concluded, however, that
such testimony is admissible if the
opinion is based solely on a defendant’s
intoxicated condition. Nevertheless,
exclusion of the testimony was upheld in
Flattum because the opinion of the
psychiatrist regarding the defendant’s
capacity to form intent was based on both
the defendant’s intoxication and his
mental health history, which rendered it
inadmissible under Steele. Then the court
added that psychiatric testimony as to a
defendant’s mental health history,
stopping short of a conclusion regarding
a capacity to form intent, could be
admissible to cast doubt as a factual
matter on whether a defendant had the
specific intent to commit the crime
alleged. At the same time, the court
granted trial judges considerable
discretion to evaluate the evidence as to
relevance, reliability, and the
possibility of prejudice and confusion.
See also State v. Repp, 122 Wis. 2d 246
(1985).
Taking heart from Flattum and Repp,
Morgan contends that in the guilt phase
of her trial she was prevented from
introducing admissible evidence regarding
her mental health history. In general,
her claim is that in the environment in
which she grew up, she lived through
several traumatic incidents which caused
her to suffer from PTSD and Brief
Reactive Psychosis. These conditions
caused her to "act unintentionally" in
killing Adams. She wanted to present
expert psychiatric evidence regarding her
condition; lay testimony regarding 17
specific incidences of trauma and
violence she experienced which trigger
symptoms of PTSD, one of which goes back

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to an incident when she was 3 years old
when her father shot at her mother
"because there was too much salt in the
gravy"; and her own testimony that she
was in a trance-like state of mind when
she killed Adams. Morgan contends that,
in excluding this evidence, the Wisconsin
courts were confused as to the "use of
ultimate opinion testimony and the use of
causation testimony." In an attempt to
clarify the distinction, she says "It was
not Felicia Morgan’s post-traumatic
stress disorder which caused her to
unintentionally kill Brenda Adams, but
the flashbacks and resulting trance-like
states which were unavoidable symptoms of
PTSD." Apparently she believes that it
might be proper to exclude evidence that
the disorder itself made her incapable of
forming intent, but not to exclude
evidence that the symptoms of the
disorder caused her actions to be
unintentional. This is a razor-thin
distinction, to say the least. In any
case, the essence of her argument is that
her evidence does not go to the ultimate
issue of her capacity to form intent, and
therefore its exclusion is not supported
by the Steele-Flattum rule. So banning
the evidence, Morgan says, violated her
constitutional rights to due process, to
present a defense, and to testify in her
own behalf.
We proceed under sec. 2254 which, even
prior to the amendments made to the
habeas statute by the Antiterrorism and
Effective Death Penalty Act (AEDPA),
placed constraints on the issues federal
courts may consider when reviewing state
convictions. There were limits to our
review of state fact-finding set out
under the previous version of sec.
2254(d). For instance, when a petitioner
has had a "full and fair opportunity" to
litigate a Fourth Amendment claim in
state court, we will not grant habeas
relief on a claim based on an
unconstitutional search and seizure.
Stone v. Powell, 428 U.S. 465 (1976). And
more than ever, after the revisions set
out in AEDPA, we must clearly focus on
what our role as federal judges is.
As amended by AEDPA, sec. 2254 provides
that
(d) [a]n application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court

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shall not be granted with respect to any
claim that was adjudicated on the merits
in State court proceedings unless the
adjudication of the claim--
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the Supreme
Court of the United States[.]
In Williams v. Taylor, 120 S. Ct. 1495
(2000), Justice O’Connor, writing for the
court on the meaning of this provision
(Justice Stevens’ views prevailing as to
other issues), said the phrases "contrary
to" and "an unreasonable application of"
are separate concepts. A state court
decision can be "contrary to" Supreme
Court precedent if the state court
arrives at a conclusion "opposite to that
reached by this Court on a question of
law." At 1519. It can also be "contrary
to" the Court’s precedent if "the state
court confronts facts that are materially
indistinguishable from a relevant Supreme
Court precedent and arrives at a result
opposite" the Court’s. At 1519. A
decision is an "unreasonable application"
of Court precedent if "the state court
identifies the correct governing legal
principle from this Court’s decisions but
unreasonably applies that principle to
the facts of the prisoner’s case." At
1523. Unreasonableness is judged by an
objective standard, and under the
"unreasonable application" clause,
a federal habeas court may not issue the
writ simply because that court concludes
in its independent judgment that the
relevant state-court decision applied
clearly established federal law
erroneously or incorrectly. Rather, that
application must also be unreasonable.
120 S. Ct. at 1522. See also Anderson v.
Cowan, 2000 WL 1310513 (7th Cir. 2000).
In Morgan’s case, applying principles
from Steele, Flattum, and other Wisconsin
cases, the Wisconsin Court of Appeals
determined that the exclusion was proper-
-that Morgan’s evidence was not relevant
during the guilt phase of her trial nor
was it tied to any defense recognized
under Wisconsin law. Any alleged fact
that she was in a dissociative state was
said not to carry with it the automatic
supposition that she lacked the specific

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intent to kill Adams. Citing Chambers v.
Mississippi, 410 U.S. 284 (1973), the
court then concluded that exclusion of
the evidence at the guilt phase did not
deprive Morgan of her constitutional
right to present a defense.
Was this conclusion an "unreasonable
application" under sec. 2254? To decide,
we must first examine Supreme Court
precedent, set out both in Chambers and,
because Chambers presents a broad general
principle, in other cases which involve
the right to present a defense. In 1967
the Sixth Amendment right of a defendant
to have compulsory process for obtaining
witnesses in his favor was found to be
incorporated into the Due Process Clause
of the Fourteenth Amendment and thus
applicable to state criminal trials.
Washington v. Texas, 388 U.S. 14 (1967).
In Chambers, the Court said that the
right of an accused in a criminal trial
to due process is essentially the right
to a fair opportunity to defend himself.
Chambers was arrested for murder, but a
fellow named McDonald made and later
repudiated a written confession. In
addition, McDonald orally admitted the
killing on separate occasions to three
friends. During his trial, Chambers was
blocked from cross-examining McDonald,
whom he had called to testify, on the
basis of a Mississippi rule that
prevented a party from "impeaching" his
own witness./1 Chambers was also
prevented, on hearsay grounds, from
introducing the testimony of the three
persons to whom McDonald confessed. The
Supreme Court found that the exclusion of
evidence, coupled with the denial of
cross-examination, denied Chambers a fair
trial. Perhaps recognizing that it was
approaching territory traditionally left
to the states, the Court cautioned that
it was not establishing a new principle
of constitutional law, nor was it
"signal[ling] any diminution in the
respect traditionally accorded to the
States in the establishment and
implementation of their own criminal
trial rules and procedures." 410 U.S. at
302-303.
Neither the rights of the states to
define crimes and establish procedures
for prosecuting them nor the
constitutional rights of defendants in
criminal cases are absolute. A
defendant’s right to present a defense

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does not mean he has a right to
irrelevant evidence or even relevant
evidence which, for instance, is
privileged. Taylor v. Illinois, 485 U.S.
400 (1988). On the other hand, the
state’s well-recognized right to control
its criminal code does not mean it has
unfettered power. Apprendi v. New Jersey,
120 S. Ct. 2348 (2000). These competing
interests often intersect, as they do in
Morgan’s case.
They also intersected in Montana v.
Egelhoff, 518 U.S. 37 (1996). Egelhoff
was before the Supreme Court on direct
appeal from a Montana criminal
conviction. Montana had a law that said a
defendant’s intoxicated condition could
not be admitted to cast doubt on whether
he possessed the mental state required as
an element of the crime charged. The
Montana Supreme Court reversed Egelhoff’s
conviction, saying that his rights under
the Due Process Clause were violated by
the statutory exclusion of evidence; the
court said he had a right to have the
jury consider all relevant evidence to
rebut the State’s evidence and his
intoxicated state was relevant to the
issue whether he acted knowingly and
purposely. The United States Supreme
Court reversed. While noting that
Chambers and Crane v. Kentucky, 476 U.S.
683 (1986), say that in the absence of a
valid state justification, exclusion of
evidence may deprive a defendant of due
process, the Court emphasized that a
defendant does not have an unfettered
right to present evidence, even relevant
evidence. Citing Patterson v. New York,
432 U.S. 197 (1977), the Court pointed
out that, within reason, states may
regulate procedures under which their
laws are carried out. Furthermore, the
Due Process Clause does not permit
federal courts to "engage in a finely
tuned review of the wisdom of state
evidentiary rules." At 43, quoting
Marshall v. Lonberger, 459 U.S. 422
(1983). The Court upheld the Montana law:
The doctrines of actus reus, mens rea,
insanity, mistake, justification, and
duress have historically provided the
tools for a constantly shifting
adjustment of the tension between the
evolving aims of the criminal law and
changing religious, moral, philosophical,
and medical views of the nature of man.
This process of adjustment has always

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been thought to be the province of the
States.
At 56, quoting Powell v. Texas, 392 U.S.
514, 535-536 (1968).
In cases like Morgan’s, the role of any
federal court under sec. 2254 is limited.
The issue here is not whether the
exclusion of any particular piece of
evidence was error in light of Steele,
Flattum, and Repp. A state court of
appeals said it was not. That is the end
of the matter of possible error based on
the measuring of the evidence against
state law because state, not federal,
courts decide these things. And even if
there had been an error of Wisconsin law
regarding the admission of evidence, it
is not our role to correct it. It has
never been our job unless the error rises
to the level of a constitutional
violation. See, e.g., Burrus v. Young,
808 F.2d 578 (7th Cir. 1986). It remains
decidedly not our business under AEDPA.
No federal court may second-guess a state
court’s adjudication of an issue simply
because we disagree with it. The drastic
act of upsetting a judgment entered by
another judicial system, after full
litigation of the question, "is reserved
for grave occasions." Lindh v. Murphy, 96
F.3d 856, 871 (7th Cir. 1996) (en banc),
rev’d on other grounds, 521 U.S. 320
(1997). So the only question for us is
whether the exclusion of evidence was not
just wrong, but whether it was
unreasonable to say that it did not
violate Morgan’s due process right to
present a defense.
It is perfectly clear, at least after
Egelhoff, that Wisconsin’s bifurcated
trial scheme itself does not run afoul of
Supreme Court precedent--and, in fact,
Morgan does not argue that it does. But
it is that scheme which makes Morgan’s
task so difficult. If excluding at least
most psychiatric evidence from the guilt
phase of a trial is within the power of
the State, and if the exclusion of
evidence in her case is proper under
state law according to a court which has
the authority to decide that issue, then
Morgan has to argue that despite what the
state court said, the exclusion of
evidence in her case was nevertheless so
serious as to violate her right to
present a defense, a defense which
attempts to cast doubt on the existence

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of specific intent by using evidence the
State says is not relevant as to that
element. Morgan does not, in our view,
successfully jump over the state-law
fence which surrounds her. What she is
arguing is, in reality, a state law
claim. It is that somehow in her case the
evidence should have been admitted
through a door left sightly ajar in
Flattum.
Even were the state law issue our
business, we would not agree with Morgan
that the state trial judge’s barring of
the evidence was error under state law.
Despite the fact that Wisconsin remains
skeptical of psychiatric evidence, Morgan
contends that her evidence was different
from that prohibited by Steele. However,
when one looks at her proffered evidence
as a whole, it really adds up to
something very much like opinion evidence
on capacity to form intent. There would
be testimony about the nature of PTSD--
that it is caused by traumatic incidents
and that traumatic events may cause
flashbacks, trance-like states, etc., in
which a person might act unintentionally.
That testimony would be coupled with
testimony that Morgan’s life was filled
with traumatic incidents and her own
testimony that when she killed Adams she
was in a trance-like state. Her evidence
differs only subtly from psychiatric
evidence that she lacked the capacity to
form intent. It is not at all clear that
Morgan’s evidence is more like that
possibly admissible under Flattum than
that which is clearly precluded by
Steele. In addition, Flattum made it very
clear that the trial judge retains
considerable discretion in evaluating
psychiatric evidence.
It is obvious that Judge Guolee, the
state trial judge, wrestled with Morgan’s
proffer, cited appropriate case law, and
ultimately determined that, given
Wisconsin’s skepticism about psychiatric
testimony, much of Morgan’s evidence
should be excluded. He showed concern for
Morgan’s right to present a defense, but
he also correctly noted that normally a
defendant must rely on a recognizable de
fense--that there are "certain parameters
as to defenses." He referred to the
struggle the Wisconsin appellate courts
have had in evaluating psychiatric
testimony and their conclusion that such
testimony often goes to a moral issue,

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which is the relevant inquiry in the
second stage of a bifurcated trial. As to
whether an expert might be allowed to
testify to matters stopping short of the
ultimate issue of capacity to form
intent, the judge recognized the very
"real dilemma" for a court in drawing and
enforcing the boundaries between the two
types of evidence. He then made clear
that Morgan’s own testimony was relevant
as to what she was doing at the moment of
the killing and why she "closed her
eyes," for instance. When pressed as to
whether he was excluding entirely the
other lay testimony about the 17
incidents of trauma, he said, "That’s
pretty broad." He said he was excluding
"irrelevant social testimony" but that he
could not "anticipate what that would
be," thus leaving the door open to some
testimony, the precise contours of which
would be determined as the evidence was
presented. It was this ruling that the
Wisconsin Court of Appeals affirmed. Even
if it were our role to agree or disagree
with this conclusion, we cannot say the
court made the wrong call. And that’s
what it means to give "discretion" to the
trial judge on evidentiary calls.
As an aside, we note that Morgan would
have placed a very heavy burden on the
trial were she allowed to present 17
separate incidents of past traumatic
incidents, some dating back to when she
was a little girl. For instance
(according to her pretrial submissions),
she wanted to offer, through testing of
friends and family, that when she was
"four to six years old, [she] witnessed
her mother and father regularly dine with
loaded revolvers at their sides during
family dinners so that neither one would
be unprotected from the violent outbursts
of the other." She also wanted to show
that her "cousin was shot in a 1988
street fight and subsequently lost the
use of her arm" and that her mother "shot
a man, in front of Morgan, because he was
molesting Morgan while giving her a
bath." We mentioned earlier that she also
wanted to offer evidence that when she
was only 3 years old, her father shot her
mother "because there was too much salt
in the gravy."
Unless Morgan assumed the State would
just sit back and listen to all this
testimony without investigating its
accuracy, she was in effect asking the

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trial judge to hold 17 mini-trials on
collateral events, some of which were far
outside any conceivably relevant time
period.
With that detour into Wisconsin law
(which is not really our business) out of
the way, we finally arrive at what is our
business. We must decide whether it is
unreasonable, given what the Supreme
Court has said, for the Wisconsin Court
of Appeals to conclude that the exclusion
of Morgan’s evidence did not deprive her
of her right to present a defense. The
exclusion of evidence of intoxication in
Egelhoff, evidence which was offered to
cast doubt on whether the defendant’s
actions were taken knowingly and
purposely, is closely analogous to the
exclusion of psychiatric evidence on the
issue of specific intent. As we have
already said, it is more than reasonable
to conclude that under Egelhoff,
Wisconsin’s exclusion of psychiatric
evidence during the guilt phase of a
bifurcated trial does not violate a
defendant’s rights. There can be no
misunderstanding the Wisconsin Supreme
Court’s mistrust of such evidence. That
mistrust, as Justice Heffernan clearly
set out in Steele, is grounded in a
belief that the causal link is not
sufficiently strong between a mental
disease and a defendant’s state of mind
at the precise moment a crime is
committed. Furthermore, it seems likely
that the Wisconsin courts might very well
find PTSD evidence less, rather than
more, reliable than evidence of other
mental conditions. According to Morgan,
the relevant symptoms of PTSD, such as
the trance-like state, are not
persistent, but rather are triggered by
specific events. For instance, Morgan
does not claim that she was suffering
from PTSD during the entire 15-minute
crime spree, but only at the moment she
pulled the trigger and shot Adams. It
would require a good deal of precision to
determine just when the PTSD kicked in.
We think it is not an unreasonable
application of United States Supreme
Court precedent to conclude that
Wisconsin can exclude psychiatric
testimony as irrelevant in the first
stage of the trial, and further that the
exclusion of evidence in Morgan’s case
did not violate her constitutional
rights.

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In sum, precedent tells us that in
appropriate instances, the exclusion of
evidence violates a defendant’s right to
present a defense. But the defendant’s
right to present evidence is not
absolute, and the exclusion of even
relevant evidence does not automatically
create a Due Process violation. We also
know that the states retain the right,
also not absolute, to establish
procedures for running its criminal
trials. At the present time, for
Wisconsin to exclude psychiatric
testimony on the capacity to form intent
is within its power. That means that many
defendants who have mental diseases,
which some might think would cast doubt
on their ability to form the intent
necessary to commit a crime, can be
precluded from presenting that testimony
during the guilt phase of their trials.
The exclusion in Morgan’s case is well
within the norm and does not rise to the
level of a constitutional violation.
We have framed our analysis in terms of
Morgan’s right to present a defense. The
right to present a defense includes a
right to testify on her own behalf. Rock
v. Arkansas, 483 U.S. 44 (1987). Morgan
also seems to make a claim that she was
prevented from testifying. The claim is
not supported by either common sense or
the record. The state trial judge did not
prevent Morgan from testifying. He
indicated that there could be testimony
regarding what Morgan did at the time of
the shooting: "[S]he closed her eyes,
that’s a fact that can be brought out."
Additionally, she could testify as to why
she closed her eyes: "Why she closed her
eyes, what she was doing during those
facts is a fact." If, in reality, the
trial judge had prevented Morgan from
testifying, common sense tells us we
would not now be tangled up in
Wisconsin’s esoteric bifurcation
procedure. Any attorney would have
raised, starkly and with emphasis, the
fundamental issue regarding her right to
testify. If Morgan had been prohibited
from testifying entirely, the Wisconsin
Court of Appeals would certainly have
ordered a new trial. Rather, the court of
appeals never even considered the issue--
more than likely because it was not
raised. If by some chance the case got to
us before some other court corrected the
error, we would waste no time finding
that a decision upholding her conviction

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was "contrary to" established Supreme
Court precedent.
But to be charitable, although Morgan
says in her brief with us that she was
prohibited from testifying, her argument
is, in fact, that the exclusion of the
other testimony "effectively precluded"
her from testifying, another issue not
presented to or considered by the
Wisconsin Court of Appeals.
We will briefly discuss the issue
despite a possible problem regarding the
exhaustion of state remedies on this
subset of Morgan’s primary claim. No
doubt sensing that the jury might be
skeptical about her testimony that she
was in a trance or did not know what she
was doing, Morgan wanted to present the
whole package: the testimony that she
had PTSD; the symptoms of PTSD that, for
instance, a sufferer may experience
trance-like states; and lay testimony
about traumatic experiences (the 17 inci
dents) and Morgan’s behavior. With that
testimony as a base, she hoped that her
own testimony that she suffered a trance-
like state at the time of the murder
would gain a measure of credibility.
That’s why, when she was not allowed to
present the base, she claims she was
"effectively precluded" from testifying.
To that we say two things. She has no
right to present evidence which is
irrelevant in order to bolster her own
testimony. And it is not unusual for
defendants in criminal cases to be
"effectively precluded" from testifying.
A defendant with a nasty criminal record,
for instance, may make a strategic
decision that it is better to remain
silent than to let the jury find out too
much about him. He is effectively
precluded from testifying, but his
constitutional rights are not violated.
For all these reasons, the judgment of
the district court granting Morgan’s
petition for a writ of habeas corpus is
REVERSED.
/1
Not much is left of the hoary rule against
"impeaching" one’s own witness, a rule that has
been discredited as a remnant of the old "vouch-
er" rule (with "oath-takers" summoned to support

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one’s case) under primitive English trial prac-
tice.

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