994 F.2d 305 (7th Cir. 1993), 92-3448, Gacy v. Welborn

Docket Nº:92-3448, 92-3965.
Citation:994 F.2d 305
Party Name:John Wayne GACY, Petitioner-Appellant, v. George WELBORN, Warden, Menard Correctional Center, and Roland W. Burris, Attorney General of Illinois, Respondents-Appellees.
Case Date:April 12, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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994 F.2d 305 (7th Cir. 1993)

John Wayne GACY, Petitioner-Appellant,

v.

George WELBORN, Warden, Menard Correctional Center, and

Roland W. Burris, Attorney General of Illinois,

Respondents-Appellees.

Nos. 92-3448, 92-3965.

United States Court of Appeals, Seventh Circuit

April 12, 1993

Argued March 4, 1993.

Rehearing and Rehearing En Banc

Denied May 7, 1993.

Page 306

William J. Nissen (argued), Susan Weber, Sidley & Austin, Chicago, IL, for petitioner-appellant.

Kevin Sweeney, Asst. State's Atty., Renee Golbus Goldfarb, Chicago, IL, Terence M. Madsen, Asst. Atty. Gen. (argued), Criminal Appeals Div. Chicago, IL, James E. Fitzgerald (argued), Cook County State's Atty., Chicago, IL, for respondents-appellees.

Barry Levenstam, Michael T. Brody, Jerold S. Solovy, Jeff S. Pitzer, James B. Sowerby, Jenner & Block, Chicago, IL, for Hernando Williams, amicus curiae.

Locke E. Bowman, III, Silets & Martin, Chicago, IL, David J. Bradford, Kathleen M. Banar, Niles, IL, MacArthur Justice Center, amicus curiae.

James M. Amend, Kirkland & Ellis, Chicago, IL, amicus curiae.

Before EASTERBROOK, MANION, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

John Wayne Gacy is a serial killer. Between 1972 and 1978 he enticed many young men to his home near Chicago for homosexual liaisons. At least 33 never left. Gacy tied up or handcuffed his partners, then strangled or choked them. Twenty-eight of the bodies were dumped into the crawl space under the Gacy residence; one was entombed under the driveway; the rest were thrown into the Des Plaines River. Gacy, who operated a construction business, had his workers dig trenches and throw lime into the crawl space. Gacy's wife complained about an "awful stench." But the slaughter continued until the disappearance of 15 year old Robert Piest on December 11, 1978. Piest vanished after telling his mother that he was going to see a building contractor about a summer job. The presence of Gacy's truck outside the place where Piest was to meet his potential employer led to Gacy's arrest within two days.

The discovery of so many skeletons, several with rags stuffed in the victims' mouths, created a national sensation. Gacy regaled the police with stories about his exploits, which he attributed to "Jack," an alternative personality. A jury convicted Gacy in March 1980 of 33 counts of murder, rejecting his defense of insanity. The same jury sentenced Gacy to death for 12 of these killings, the only 12 that the prosecution could prove had been committed after Illinois enacted its post-Furman death penalty statute. The Supreme Court of Illinois affirmed. People v. Gacy, 103 Ill.2d 1, 82 Ill.Dec. 391, 468 N.E.2d 1171 (1984), cert. denied, 470 U.S. 1037, 105 S.Ct. 1410, 84 L.Ed.2d 799 (1985). That court also rejected a collateral attack, 125 Ill.2d 117, 125 Ill.Dec. 770, 530 N.E.2d 1340 (1988), cert. denied, 490 U.S. 1085, 109 S.Ct. 2111, 104 L.Ed.2d 671 (1989). A United States district court has decided that Gacy is not entitled to collateral relief. 1992 WL 211018, 1992 U.S.Dist. LEXIS 12498 (N.D.Ill.), motion to suspend judgment denied, 1992 WL 358851, 1992 U.S.Dist. LEXIS 18073. Opinions in this case already exceed 200 pages. We spare readers further recapitulation and turn directly to the four arguments Gacy has culled from more than 100 raised at one or another stage of this litigation, now 14 1/2 years old. Gacy has in this sense already escaped the 12 judgments of execution, for judge and jury cannot decide whether a murderer will die, but only how soon.

I

Illinois commits the capital sentencing decision to the jury. If the jury convicts a defendant of a capital offense, there is a sentencing proceeding. At this proceeding

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the prosecution bears the burden of establishing the existence of defined aggravating circumstances. If the jury unanimously decides that there is at least one aggravating circumstance, the defendant becomes eligible for a death sentence. Section 9-1(g) of the Illinois statute (Ill.Rev.Stat. ch. 38 p 9-1(g) (1979), now 720 Ill.Comp.Stat. § 5/9-1(g)) spells out what happens next:

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.

The second paragraph means that a single juror's belief that the defendant has demonstrated the existence of a single mitigating factor precludes the death sentence. Such a rule surprises some judges, who are accustomed to telling jurors that decisions must be unanimous. For example, in Kubat v. Thieret, 867 F.2d 351 (7th Cir.1989), the judge instructed the jury: "If, after your deliberations, you unanimously conclude that there is a sufficient mitigating factor or factors to preclude imposition of the death sentence, you should sign the form which so indicates." The court did not tell the jury that a single juror could block capital punishment, and we held the instruction violated the Constitution. 867 F.2d at 371-74. Cf. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). When the jury knows about its full options, however, the Illinois system comports with all constitutional requirements. Silagy v. Peters, 905 F.2d 986, 997-1001 (7th Cir.1990); Williams v. Chrans, 945 F.2d 926, 935-38 (7th Cir.1991).

A

At the close of Gacy's penalty proceeding, Judge Garippo instructed the jury:

If, after your deliberations, you unanimously determine that there are no mitigating factors sufficient to preclude the imposition of the death sentence on the Defendant, you should sign the verdict form directing a sentence of death. If, after your deliberations, you are not unanimous in concluding that there are no mitigating factors sufficient to preclude imposition of the death sentence, you must sign the verdict form directing a sentence of imprisonment.

As Judge Grady, who denied Gacy's petition for a writ of habeas corpus, remarked: "This written instruction is completely accurate." The jurors had this instruction, like the others in the three-page charge, during their deliberations. Unfortunately, Judge Garippo did not read the instruction to the jury as written--or at least the court reporter did not take down the same words that appear in the written instructions. The transcript has it that the second sentence of this instruction was delivered as: "If, after your deliberations, you unanimously conclude there are mitigating factors sufficient to preclude the imposition of the death penalty, you must sign the verdict form directing a sentence of imprisonment." This sentence, Gacy submits, carries the same defect as the instruction in Kubat and vitiates the death sentences.

Gacy's jury was told that if it is unanimous in finding a mitigating circumstance, it must return a verdict of imprisonment. The oral version of the instruction is accurate, as far as it goes. But the instruction did not give the jury the whole truth, because it did not tell the jurors what to do in the event of disagreement. Mills and McKoy, the closest decisions from the Supreme Court, dealt with instructions telling the jury that only unanimous agreement, on a particular mitigating factor, would permit the jury to return a verdict of imprisonment. Such an instruction creates a risk that even though every juror believes that there is some mitigating factor, the jurors' inability to agree on a particular factor would lead to the defendant's execution. No such problem infects the oral instruction to Gacy's jury. Kubat dealt with a related question: what if the jury is ignorant of the power of a single juror to block the

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death penalty under state law? Both oral and written instructions in Kubat's case dealt only with unanimous verdicts, and a reasonable jury might well have thought that it was supposed to continue deliberating until it reached agreement--just as it had done at the guilt phase of the trial.

Like Judge Grady, we conclude that reasonable jurors would not have been under the misapprehension that they had to reach unanimous agreement. Judge Garippo opened the sentencing phase of Gacy's trial by describing to the jurors the findings they would need to make. The judge said, among other things:

If you cannot unanimously agree that there are no sufficient mitigating factors to preclude the imposition of the death penalty, you will sign that verdict so indicating, and the Court will sentence the Defendant to imprisonment.

The final instructions came close on the heels of the preliminary set, for the jury did not receive fresh evidence; instead the lawyers presented arguments based on the evidence at the five-week trial. Defense counsel emphasized during these arguments that unanimity was unnecessary:

[T]he only way that you can impose the death penalty on Mr. Gacy, and His Honor will instruct you, it is a unanimous decision, all 12 of you have to agree to give Mr. Gacy the death penalty. If there is just one of you who feels that he was acting under an emotional disturbance, or if there is just one of you who feels it would not be the right thing to do, if there is one of you who feels that he should be studied for any reason at all, if there is one of you, then you must sentence him or direct the court to sentence him to a term of imprisonment.

This argument, an accurate statement of Illinois law, was presented without objection from the prosecutor. For...

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