US ex rel. Free v. McGinnis, 89 C 3765.

• Decision Date: 07 July 1992
• Docket Number: No. 89 C 3765.,89 C 3765.
• Citation: 818 F. Supp. 1098
• Parties: UNITED STATES of America ex rel. James P. FREE, Jr., Petitioner, v. Kenneth McGINNIS, Warden of Pontiac Correctional Facility, Howard Peters III, Director of Illinois Department of Corrections and Roland W. Burris, Illinois Attorney General, Respondents.
• Court: U.S. District Court — Northern District of Illinois

818 F. Supp. 1098

UNITED STATES of America ex rel. James P. FREE, Jr., Petitioner, v. Kenneth McGINNIS, Warden of Pontiac Correctional Facility, Howard Peters III, Director of Illinois Department of Corrections and Roland W. Burris, Illinois Attorney General, Respondents.

No. 89 C 3765.

United States District Court, N.D. Illinois, E.D.

July 7, 1992.

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Kimbal Richard Anderson, Winston & Strawn, Chicago, IL, for petitioner.

Arleen C. Anderson, Vincenzo Chimera, Paula J. Giroux, Illinois Attorney General's Office, Chicago, IL, Jack Donatelli, United States Attorney's Office, Chicago, IL, for respondents.

Magistrate Judge's Report and Recommendation Regarding Juror Comprehension Studies of Professor Hans Zeisel and Their Application To Grounds for Relief 5, 10 and 14 Of Petition for Habeas Corpus

WEISBERG, United States Magistrate Judge.

Petitioner James Free was convicted on June 22, 1979 in the Circuit Court of Du Page County for the April 24, 1978 murder and attempted rape of Bonnie Serpico and the attempted murder and attempted rape of Lori Rowe. The facts of the crime do not concern us here. The prosecutor requested a hearing to determine whether the death penalty should be imposed, and a two-stage hearing was held in accordance with Illinois law. The jury unanimously found beyond a reasonable doubt that the victim was murdered in the course of a burglary and rape, aggravating factors permitting the imposition of the death penalty. After hearing evidence in aggravation and mitigation, the jury found no mitigating factors that precluded the imposition of the death penalty and on August 7, 1979 Free was sentenced to death.

On January 24, 1983, the Illinois Supreme Court affirmed Free's conviction and sentence. People v. Free, 94 Ill.2d 378, 447 N.E.2d 218, 69 Ill.Dec. 1 (1983), cert. denied, 464 U.S. 865, 104 S.Ct. 200, 78 L.Ed.2d 175 (1983). Free filed two separate petitions for post-conviction relief in the Illinois state courts. Each petition was dismissed and the Illinois Supreme Court affirmed each dismissal. People v. Free, 112 Ill.2d 154, 492 N.E.2d 1269, 97 Ill.Dec. 396 (1986), cert. denied, 479 U.S. 871, 107 S.Ct. 246, 93 L.Ed.2d 170 (1986); People v. Free, 122 Ill.2d 367, 522 N.E.2d 1184, 119 Ill.Dec. 325 (1988), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159 (1988). Having exhausted all available state remedies, Free filed this habeas petition raising 21 separate grounds for relief. The state has stayed Free's execution pending the final disposition of this petition.

In an opinion dated November 5, 1991, Free v. Peters, 778 F.Supp. 431, Judge Aspen dismissed all but three grounds for relief. These remaining claims, Grounds 5, 10 and 14, attack the Illinois Death Penalty Act and jury instructions. Free contends that those instructions provide constitutionally inadequate guidance to capital sentencing jurors, specifically, that they confuse the jury on five important issues: (1) whether jurors must unanimously agree on the existence of mitigating factors, (2) whether jurors may consider mitigating factors not mentioned by the court as reasons not to impose death, (3) which party bears the burden of persuasion, (4) whether the existence of a mitigating factor mandates a non-death verdict and (5) whether the jury must unanimously agree as to its ultimate verdict of life or death.

Judge Aspen noted that the constitutionality of the Illinois statute and jury instructions had been upheld in Silagy v. Peters, 905 F.2d 986 (7th Cir.1990), cert. den. 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991), and Williams v. Chrans, 742 F.Supp. 472 (N.D.Ill.1990) (Aspen, J.), aff'd, 945 F.2d 926 (7th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 3002, 120 L.Ed.2d 877 (1992). In Silagy, the Seventh Circuit rejected arguments that the Illinois death penalty statute and jury instructions unconstitutionally impose a presumption in favor of death (Free's Ground 5) and shift the burden of proof to the defendant to overcome that presumption (Free's Ground 6). Silagy, 905 F.2d at 997-1000. Williams rejected the related argument that the failure of the Illinois sentencing scheme to assign a specific standard of proof as to the ultimate issue renders the scheme unconstitutional (Free's Ground 14). Williams, 742 F.Supp. at 499-500. Williams additionally rejected the argument that the statute is unconstitutionally vague and fails to narrowly channel the sentencing authority's discretion, creating the impermissible risk that the death sentence will be imposed arbitrarily and capriciously (Free's Ground 10). Id. at 500.

Nevertheless, Judge Aspen reserved ruling on these claims because Free had offered the results of a juror study conducted in April 1990 by Professor Hans Zeisel which, according to Free, shows that jurors are not properly guided by the semantics of the statute. Judge Aspen believed that the study results,

if statistically reliable and unbiased ... call into question the empirical assumptions as to juror comprehension which served as the predicate to the rulings in Silagy and Williams.

Thus, the question we face is whether it is appropriate to consider such evidence as a means of supplanting those prior rulings. Although Free cites no case law on the question, he makes the compelling argument that a finding, which turns on how jurors comprehend the law they are told to apply, should be based if possible on substantial evidence rather than judicial speculation.

Free, 778 F.Supp. at 434-35.

Judge Aspen directed this court to hold an evidentiary hearing to consider the validity of the Zeisel study and its applicability to these three grounds for relief. A hearing was held on January 13, 14 and 15, and February 4, 5 and 7, 1992. The court heard the testimony of experts in empirical jury studies, statistics, survey methodology and linguistics. During the recess Zeisel carried out a second jury survey which was admitted in evidence. The parties filed post-trial briefs and proposed findings of fact and conclusions of law.

This Report will address the issues before us in the following manner. In Part 1 we will review Illinois' procedure for imposing the death penalty. Part 2 summarizes Free's claims which have been referred here and the constitutional requirements invoked in this case. Part 3 describes the Zeisel studies (sometimes called the Illinois Capital Jury Surveys). Part 4 assesses the challenges to their validity and reliability. In Part 5 we discuss whether several of Free's claims have been procedurally defaulted on the ground urged by respondents that the Zeisel studies were available to Free during the period of his state court post-conviction proceedings. Finally, Part 6 analyzes the impact of the empirical evidence on the pertinent claims in Free's petition.

1. The Illinois Death Penalty Act

Under the Illinois Death Penalty Act, the prosecution may request a capital sentencing hearing after the defendant pleads guilty to or is convicted of murder. Ill.Rev.Stat. (1979) ch. 38 ¶ 9-1(d). In the first phase of the hearing the state must prove beyond a reasonable doubt that the defendant is eligible for the death penalty: that the defendant was at least eighteen years old at the time of the offense and that one or more of seven statutory aggravating factors exist.¹ If the jury unanimously finds that the defendant is eligible for the death penalty, the second phase commences. The state presents evidence of any aggravating factors, statutory or otherwise, and the defense presents mitigating circumstances. The statute lists five potentially relevant mitigating factors, but only by way of example.² The defendant may present any aspects of the defendant's character or record, and any of the circumstances of the offense that militate against the imposition of the death sentence. The criminal rules of evidence are relaxed in this phase. The following statutory language provides the standard by which the jury is to assess the mitigating and aggravating factors:

If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.

Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.

Ill.Rev.Stat. (1979) ch. 38, ¶ 9-1(g). The death sentence is imposed only if all jurors agree that the mitigating factors are insufficient to preclude a death sentence. If the jurors unanimously agree that no such mitigating factors exist, then the court must impose a death sentence. However, a juror may find a mitigating factor even if the defendant presents no evidence at the sentencing hearing.³

The Illinois Supreme Court has held that the statute requires the jury to weigh aggravating and mitigating factors. People v. Brownell, 79 Ill.2d 508, 38 Ill.Dec. 757, 770, 772, 404 N.E.2d 181, 194, 196 (1980). That court has also said that the defendant has the burden of persuasion on the question of whether sufficient mitigating circumstances exist to preclude the imposition of the death penalty. People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 894, 560 N.E.2d 258, 291 (1990). On the other hand, in the same opinion, the court said, "we note that the defendant does not alone have a burden of persuasion at this balancing stage, for the State is the movant, the party seeking the death penalty, and so bears the primary burden of persuading the jury that, as the statute states, there are no mitigating factors sufficient to preclude the sentencer from imposing the sentence of death for which the defendant is eligible." Id., 147 Ill.Dec. at 925, 560 N.E.2d at 292 (emphasis added). The court then added:

We note also that because this is a process of balancing intangibles, not of proving

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