Fleenor v. Anderson

Decision Date07 June 1999
Docket NumberNo. 98-1916,98-1916
Citation171 F.3d 1096
PartiesD.H. FLEENOR, Petitioner-Appellant, v. Ron ANDERSON, Superintendent of Indiana State Prison, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Alan M. Freedman (argued), Midwest Center for Justice, Ltd., Chicago, IL; Carol R. Heise, Midwest Center for Justice, Chicago, IL, for Petitioner-Appellant.

Michael A. Hurst (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

In 1983 an Indiana state court convicted D.H. Fleenor of murder and sentenced him to death. After exhausting his state remedies, see Fleenor v. State, 514 N.E.2d 80 (Ind.1987); Fleenor v. State, 622 N.E.2d 140 (Ind.1993), he sought federal habeas corpus, lost, and appeals. The only challenges, here as in the district court, are to the sentence. District Judge Hamilton wrote a 97-page opinion; lucid and meticulous, the opinion thoroughly discusses and soundly resolves all the issues presented by Fleenor's highly competent and experienced counsel. We discuss only two issues, and for the rest rely entirely on Judge Hamilton's opinion.

The first and more important issue comes out of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Mississippi, as in most states, the decision for or against death is made by the jury. The prosecutor told the jury that "your decision is not the final decision.... Your job is ... automatically reviewable by the Supreme Court." The trial judge explained to the jury that its verdict "is reviewable automatically as the death penalty commands." Id. at 325-26, 105 S.Ct. 2633. The Supreme Court held that this wording constituted reversible error; the suggestion that "the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role." Id. at 333, 105 S.Ct. 2633.

In Indiana, however, unlike Mississippi, the jury does not have the ultimate power of decision. The jury makes a recommendation to the judge about whether or not to impose the death penalty, but the judge is not required to follow the recommendation--it is his decision to make, not the jury's, Ind.Code § 35-50-2-9(e) ("The court shall make the final determination of the sentence after considering the jury's recommendation...; the court is not bound by the jury's recommendation")--although the Indiana courts have held that he is required to give the recommendation "due consideration," Fleenor v. State, supra, 622 N.E.2d at 143, because the jury's recommendation is a "valuable contribution" to the sentencing process. Brewer v. State, 275 Ind. 338, 417 N.E.2d 889, 909 (1981); see also Minnick v. State, 698 N.E.2d 745, 760 (Ind.1998); Saylor v. State, 686 N.E.2d 80, 87 (Ind.1997); Peterson v. State, 674 N.E.2d 528, 543 (Ind.1996). Such a system of capital sentencing is constitutionally permissible. Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995); cf. Schiro v. Farley, 510 U.S. 222, 226-27, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994).

Caldwell cannot be applied literally to this case because the responsibility for the ultimate determination whether to impose the death penalty does not rest with the jurors, but with the judge. Several decisions of the Eleventh Circuit assume that Caldwell stands for the broader principle that the jury must not be led to believe that its decision for death will have less weight in the ultimate determination of the defendant's fate than state law gives it. Johnston v. Singletary, 162 F.3d 630, 643-44 (11th Cir.1998); Duren v. Hopper, 161 F.3d 655, 664 (11th Cir.1998); Davis v. Singletary, 119 F.3d 1471, 1481-85 (11th Cir.1997); Julius v. Johnson, 840 F.2d 1533, 1544 (11th Cir.1988) (per curiam). Two of the cases (Johnston and Davis) come from Florida, where the judge is required to give the jury's recommendation for or against death "great weight." Tedder v. State, 322 So.2d 908, 910 (Fla.1975) (per curiam). There is no such requirement in Indiana--or in Alabama, where the other two Eleventh Circuit cases come from, but those cases do not discuss the significance of this difference. Nor do they hold--they merely assume without discussion--that the principle of Caldwell is applicable to capital cases from Alabama. In Indiana, the sentencing judge must give due consideration to the jury's recommendation, but he need not give it any particular weight. It is obscure in these circumstances how a prosecutor or judge could mislead the jury about how much weight its recommendation would have. But let us set our doubt about Fleenor's being able to invoke Caldwell to one side and assume without having to decide that even in an Indiana death penalty case a sentence of death could be found unconstitutional if the jury had been misled concerning the significance of its recommendation.

Judge, prosecutor, and defense counsel all made clear repeatedly to the jury in this case that the jury's role in the sentencing process was to make a recommendation for or against death, and that although the recommendation (as the word "recommendation" implies) would not be binding on the judge, it would be given due weight and recognized as a "valuable contribution" to the sentencing process. So far, so good; the jury was told exactly what its proper role is under Indiana law. But the prosecutor and the judge said other things as well. In voir dire the judge told one juror that "your recommendation is just that. It's a recommendation; it is not binding on the Court.... The Court may ignore it; the Court can accept it. In the final analysis the decision will be up to the Court." The defendant fastens on the word "ignore" (which the judge used with another juror as well). But words must be read in context. When "ignore" is opposed not to "give careful attention to" but to "accept," and when the subject is "recommendation," "ignore" clearly means "not follow" rather than "pay no attention to." So what the judge was telling these jurors was true, and it was also something they were entitled to know, as the defendant concedes.

It was also at least as likely to help as to hurt the defendant. For it was used primarily to allay the concerns of prospective jurors troubled by capital punishment by pointing out to them that they would not have the full burden of responsibility for sending a person to his death even if they voted for the death penalty. Prospective jurors who express adamant opposition to the death penalty are excludable for cause from the jury in a capital case. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Smith v. Fairman, 862 F.2d 630, 634 (7th Cir.1988); Foster v. Delo, 39 F.3d 873, 881 (8th Cir.1994). The explanation of the jurors' role in an Indiana death case, of which the defendant now complains, made it more likely that the jury would include persons with qualms about the death penalty, and such persons were more likely than the average juror to be moved by defense counsel's impassioned plea (of which more shortly) to spare his client.

More troublesome is the disquisition on mistake in the prosecutor's rebuttal argument. He noted that there had been "a lot of talk [in defense counsel's closing argument] about what if we make a mistake." To this he responded:

The judge is going to consider your final recommendation.... He's gonna make the final decision. Number One. Number Two, the law of this State requires--it's not optional--it requires that every death penalty decision is reviewed by the Supreme Court of this State. The Supreme Court of Indiana is gonna, automatically, review a death penalty case in this State. There's governors; there's Federal Judges; U.S. Supreme Court Justices.... You are asked to make a recommendation--a serious recommendation. It's not the end of this case.... You're only part of it. The Judge is only part of it.... Maybe the Jury's wrong.... And then, we go to the Indiana Supreme Court ... and then beyond ... we know there are many other recourses if somebody's made a mistake in this kind of case.

This sounds much like what the prosecutor and the trial judge said in Caldwell. But there is a critical difference. The jury here already knew that it was not going to determine the defendant's penalty. It was a detail whether it thought the penalty was going to be decided by just the trial judge, or by the trial judge plus the state supreme court and federal judges. In Caldwell, it was the jury that was going to decide the penalty subject only to limited judicial review, yet the jury may have inferred from what the prosecutor and trial judge said that their determination actually was subject to plenary review. In the present case, the jury wasn't going to decide anything; or, stated differently, its decision would be subject to plenary review, by the trial judge. Everyone knows that after a death sentence is imposed, there are tiers of appellate review designed to catch errors; the prosecutor wasn't telling the jurors anything they didn't know already. Appellate review is a fact of almost all criminal cases that are tried. Knowledge of this does not cause jurors to take lightly their sentencing responsibilities.

It could be argued that the very fact that Indiana juries have only a recommending role in capital sentencing makes any dilution of their role particularly dangerous. If they are told not only that their recommendation is weightless but also that they are backstopped by endless tiers of appellate review, they may go about their business with an unseemly casualness. But they were told nothing that is not true. Under Indiana law, the judge is not required to give their recommendation weight; and all capital sentences are multiply...

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19 cases
  • Lowery v. Anderson
    • United States
    • U.S. District Court — Southern District of Indiana
    • 6 de julho de 1999
    ...The Seventh Circuit recently addressed the application of Caldwell to the jury recommendation procedure in Indiana in Fleenor v. Anderson, 171 F.3d 1096 (7th Cir.1999), affirming Fleenor v. Farley, 47 F.Supp.2d 1021 (S.D.Ind.1998). In Fleenor the jury was told repeatedly and correctly that ......
  • Woods v. Anderson
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    • U.S. District Court — Southern District of Indiana
    • 2 de fevereiro de 2004
    ...to the jury by local law." Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); see also Fleenor v. Anderson, 171 F.3d 1096, 1099 (7th Cir.1999). At the time of Woods' trial, under the law of Indiana the jury made a recommendation on whether a defendant should receive......
  • Sergent v. Douma
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 26 de janeiro de 2016
    ...469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed.2d 841 (1985) (emphasis added), would be, in other words, "adamant," Fleenor v. Anderson, 171 F.3d 1096, 1099 (7th Cir. 1999) — in our hypothetical if, for example, the person added, "Nothing will ever convince me that the government would indict ......
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    • United States
    • U.S. Court of Appeals — Third Circuit
    • 28 de dezembro de 2001
    ...cases that are tried. Knowledge of this does not cause jurors to take lightly their sentencing responsibilities. Fleenor v. Anderson, 171 F.3d 1096, 1098 (7th Cir. 1999). What Caldwell forbids is not a simple reference to automatic appellate review, but the suggestion that the scope of revi......
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3 books & journal articles
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2019 Contents
    • 4 de agosto de 2019
    ..., 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (emphasis added), would be, in other words, “adamant,” Fleenor v. Anderson , 171 F.3d 1096, 1099 (7th Cir.1999)—in our hypothetical if, for example, the person added, “Nothing will ever convince me that the government would indict an......
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    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2020 Contents
    • 4 de agosto de 2020
    ..., 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (emphasis added), would be, in other words, “adamant,” Fleenor v. Anderson , 171 F.3d 1096, 1099 (7th Cir.1999)—in our hypothetical if, for example, the person added, “Nothing will ever convince me that the government would indict an......
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    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • 1 de agosto de 2022
    ...not Caldwell violation because it was response to defense’s distinction between legal and moral culpability); Fleenor v. Anderson, 171 F.3d 1096, 1099-1101 (7th Cir. 1999) (prosecutor’s emphasis on judicial review of jury’s decision not unlawful because was in response to defense’s attempt ......

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