Dean v. Young

• Decision Date: 26 November 1985
• Docket Number: No. 85-1070,85-1070
• Citation: 777 F.2d 1239
• Parties: Douglas G. DEAN, Petitioner-Appellant, v. Warren YOUNG, Warden, Waupun Correctional Institute, and Bronson C. LaFollette, Attorney General of Wisconsin, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1239

777 F.2d 1239

Douglas G. DEAN, Petitioner-Appellant, v. Warren YOUNG, Warden, Waupun Correctional Institute, and Bronson C. LaFollette, Attorney General of

Wisconsin, Respondents-Appellees.

No. 85-1070.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 1985.

Decided Nov. 26, 1985.

James C. Reiher, Perry, First, Reiher, Lerner & Quindel, S.C., Milwaukee, Wis., for petitioner-appellant.

David J. Becker, Atty. Gen. Wis., Dept. of Justice, Madison, Wis., for respondents-appellees.

Before EASTERBROOK and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

Expeditious review of criminal convictions should be the norm. Review must come quickly in order to relieve those in prison of the continuing effects of a wrongful conviction. A day in jail cannot be reclaimed. And if the error is one that can be repaired in a second trial, a prompt decision is essential so that this second trial will yield an accurate result. Memory and time pass together. This may harm the prosecutor in some cases, the defendant in others. In either case delay is the enemy of truth.

This case proceeded at a pace more usually associated with antitrust litigation than with the review of a criminal conviction. In November 1971 a Wisconsin court convicted Douglas Dean of killing his mother, his girlfriend's mother, and his girlfriend's three brothers. Dean received five consecutive terms of life imprisonment. In 1975 the Supreme Court of Wisconsin held that there had been several errors during the trial, all harmless. State v. Dean, 67 Wis.2d 513, 227 N.W.2d 712 (1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976). In August 1977 the parties completed the briefing on Dean's petition for habeas corpus. Dean amended the petition in July 1980, and new briefs were filed in August. In June 1981 the district court granted the petition and issued a conditional writ, creating the prospect of a second trial more than a decade after the first.

In February 1982 the parties completed the briefing on the state's appeal, which was argued in April 1983. In September 1983 this court held in an unpublished order that because Dean had not exhausted all of the claims in his petition, he must return to the district court and start over. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Dean then deleted the unexhausted claims from his petition, and in November 1984 (only three months after the filing of the last significant paper) the district court reversed itself and denied the petition. Between June 1981 and November 1984, the court held, cases decided by the Supreme Court and this court had removed the basis of the earlier holding of constitutional error--a basis that itself had been created five years after Dean's trial. This case now has exceeded in duration the government's antitrust suits against both IBM and AT & T. We cannot bring it to an end today, although we trust that any further proceedings yet in store can occur before it exceeds the duration of certain litigation involving the Jarndyce family. Cf. Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir.1981); Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir.1978); Dozie v. Cady, 430 F.2d 637, 638 (7th Cir.1970).

I

The murders occurred during the evening of July 18, 1971, or the early hours of July 19. All five victims were killed by shots from Dean's rifle; several were murdered in their sleep. Dean turned up in an incoherent condition on the back step of a church at noon on July 19. He was taken to a hospital, where the physicians found some LSD in his pocket. His defense at trial was that he killed the people while under the influence of LSD and so lacked criminal intent. He said he had taken the LSD by accident. The state replied to this with the testimony of a psychiatrist that the effects of LSD last approximately eight hours, and that the duration of Dean's affliction in the hospital demonstrated that he had ingested the drug shortly before being discovered at the church. The prosecutor also offered evidence that Dean hated his mother and had told friends that he planned to come into money by killing her and his girlfriend's mother, that he told another inmate in jail that these were his first murders, and that he had expressed regret that he had to shoot his girlfriend's brothers more than once because they would not stop crying.

Dean's sister learned during the afternoon of July 19 that her mother was dead and Dean was in the hospital. She promptly called the family attorney and asked him to go to the hospital to represent Dean. The attorney told Dean not to talk to anyone. Dean followed this to the letter; he would not even talk to the physicians at the hospital except to give them a medical history. The prosecutor brought this out from four witnesses. He asked the examining physician what Dean had said; the physician replied that Dean said nothing, on advice of counsel. He asked the same questions of a detective and of Dean himself, getting the same answer. Then the prosecutor asked Dean's sister: "Why did you think he needed an attorney?" Dean's lawyer (not the family attorney) did not object to any of these questions.

The Supreme Court of Wisconsin found the questioning improper but harmless (227 N.W.2d at 723-24). It was improper because the retention of counsel did not impeach anything Dean said. It was harmless because "the sister's responses to this improper line of questioning sufficiently negated the inference that she asked the family attorney to go to her brother because she thought he had killed her mother" (ibid.) and because the "improper questioning of the defendant was mitigated by the fact that it was clear that he had not requested the attorney himself,--it was the family lawyer sent by his sister and he merely did what the attorney told him to do." Id. at 724.

The district court in 1981 agreed with the state court that the questioning was error. It relied on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which had been decided long after the trial in 1971 and a year after the state court's opinion. ¹ Doyle holds that a prosecutor may not comment on a defendant's silence, at the time of arrest, after the defendant has received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district judge thought Doyle equally applicable to this case, even though the silence in question preceded arrest and warnings. The judge also thought the questions impaired Dean's right to counsel under the sixth amendment, and he rejected the state court's conclusion that any error was harmless.

In 1984, however, the district judge took it all back. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), which the district court had overlooked in 1981, the Supreme Court held that a prosecutor may impeach a defendant with prior silence, if the silence preceded his arrest. Then in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Court held that impeachment from silence after arrest is permissible, provided the silence precedes the Miranda warnings. Fletcher treats Doyle as a prohibition of trickery by the government--the state may not first implicitly warn the defendant that silence will not be used against him and then accost him at trial once he remains silent. Here, the district court observed, the state had elicited Dean's silence before Miranda warnings, which under Fletcher it may do. As for the comment on the exercise of the sixth amendment right to counsel, the district court cited Sulie v. Duckworth, 689 F.2d 128 (7th Cir.1982), which held that the sixth amendment does not come into play until after a suspect is arrested or otherwise becomes an "accused" within the meaning of that amendment. Dean was not an "accused" until he was arrested on July 22, and the court thought that was that.

Dean now seeks to distinguish Fletcher on the ground that he had been advised by counsel to keep silent, while the suspect in Fletcher had not. The distinction will not wash. See United States ex rel. Smith v. Rowe, 746 F.2d 386 (7th Cir.1984). Under Jenkins and Fletcher, the essential prohibition is against changing positions in midcase. The state may not advise the suspect that he has a right to remain silent and then turn about and use that silence against him. If the defendant selects silence for his own reasons, the state may refer to the silence without the vice of self-contradiction.

Although a state may not bushwhack a suspect who relies on the state's advice, it need not make a private lawyer's advice that silence is costless a self-fulfilling prophesy. Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed.2d 1054 (1926), illustrates the point. Raffle stood trial twice. At the first he did not testify; at the second he did; the prosecutor impeached his testimony at the second with his silence at the first. Raffel's decision to remain silent was more fully considered than Dean's, yet the Court held (and reiterated in Fletcher ) it may legitimately be the basis of an inference. And although Dean presses on us the additional argument that he was dazed when he remained silent, this goes to the weight of the evidence rather than its admissibility. It may be, as Dean says, that his silence is perfectly consistent with innocence. That is an argument for the jury, not a constitutional objection to allowing the prosecutor to ask the question that will reveal whether the silence was indeed sufficiently inconsistent with the story at trial to be useful.

The prosecutor elicited not only Dean's silence but also his representation by counsel. Sulie disposes of the contention that any reference to counsel itself violates the sixth amendment. See also Jacks v. Duckworth, 651 F.2d 480, 482-83 (7th Cir.1981); United States v. Kopel, 552 F.2d 1265, 1271-72 (7th Cir.1977). But it does not...