Free v. Peters, s. 92-3618

• Decision Date: 31 March 1994
• Docket Number: Nos. 92-3618,92-3711 and 93-2517,s. 92-3618
• Citation: 19 F.3d 389
• Parties: James P. FREE, Jr., Petitioner-Appellee/Cross-Appellant, v. Howard A. PETERS, III, et al., Respondents-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 389

19 F.3d 389

James P. FREE, Jr., Petitioner-Appellee/Cross-Appellant, v. Howard A. PETERS, III, et al., Respondents-Appellants/Cross-Appellees.

Nos. 92-3618, 92-3711 and 93-2517.

United States Court of Appeals Seventh Circuit.

Submitted Feb. 25, 1994.

Decided March 31, 1994.

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, No. 89 C 3765; Marvin E. Aspen, Judge.

Kimball R. Anderson, Bruce R. Braun, and Gregg D. Reisman, Winston & Strawn, Chicago, IL, for James P. Free, Jr., petitioner.

Arleen C. Anderson, Paula Giroux, Asst. Attys. Gen., Vincenzo Chimera, Richard Schwind, Office of the Atty. Gen., Steven J. Zick, Terence M. Madzen, Asst. Atty. Gen., Office of the Atty. Gen., Criminal Appeals Div., and Jack Donatelli, Asst. Atty. Gen., Office of U.S. Atty., Civ. Div., Appellate Section, Chicago, IL, for Howard A. Peters, III, respondent.

Arleen C. Anderson, Paula Giroux, Asst. Attys. Gen., Vincenzo Chimera, Richard Schwind, Office of the Atty. Gen., Steven J. Zick, Office of the Atty. Gen., Cr. Appeals Div. and Jack Donatelli, Asst. Atty. Gen., Office of the Atty. Gen., Civ. Div., Appellate Section, Chicago, IL, for Michael P. Lane and Neil F. Hartigan, respondents.

Cynthia Grant Bowman, Northwestern University Legal Clinic, David J. Bradford, Locke E. Bowman, III, and Kathleen M. Banar, University of Chicago Law School, Chicago, IL, for MacArthur Justice Center, amicus curiae.

Before POSNER, Chief Judge, and CUMMINGS, BAUER, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

On January 18, 1994, petitioner-appellee/cross-appellant filed a petition for rehearing with a suggestion of rehearing en banc. The panel majority voted to deny rehearing, Judge Cudahy dissenting. A vote of the active members of the Court was requested on the suggestion of rehearing en banc, and a majority has voted to deny a rehearing en banc. ^* The petition is therefore DENIED. ^**

ROVNER, Circuit Judge, with whom CUDAHY, Circuit Judge, joins, dissenting from the denial of rehearing en banc.

I believe this case should have been reheard by the full court. Our decisions upholding the provisions of the Illinois death penalty statute and the pattern jury instructions regarding aggravating and mitigating factors rest on the assumption that the statute and the instructions provide sufficient guidance for a jury to balance those factors appropriately. Silagy v. Peters, 905 F.2d 986, 998-99 (7th Cir.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991); Williams v. Chrans, 945 F.2d 926, 936-37, 938 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3002, 120 L.Ed.2d 877 (1992). Although there may be room for disagreement as to what the record in this case ultimately proves, at the very least it calls into question the soundness of that assumption.

Mr. Free's jury was instructed (in language that closely tracks the relevant statutory provision):

If, from your consideration of the evidence and after your due deliberation, there is at least one of you who finds that there is at least one mitigating factor sufficient to preclude the imposition of the death sentence then you should return a verdict that the Defendant be sentenced to imprisonment. On the other hand, if from your consideration of the evidence and after your due deliberation you unanimously find that there are no mitigating factors sufficient to preclude the imposition of the death sentence then you should return a verdict that the Defendant be sentenced to death.

and

If you unanimously find from your consideration of all the evidence that there are no mitigating factors sufficient to preclude the imposition of a sentence of death then you should return a verdict imposing a sentence of death. If, on the other hand, you do not unanimously find that there are no mitigating factors sufficient to preclude the imposition of a sentence of death then you should return a verdict that the sentence of death should not be imposed.

See 720 ILCS 5/9-1(g). I cannot agree that these instructions are as lucid as the court has portrayed them to be. See Free v. Peters, 12 F.3d 700, 704 (7th Cir.1993). The quadruple negative aside (see Gacy v. Welborn, 994 F.2d 305, 314 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 269, 126 L.Ed.2d 220 (1993)), I doubt a lay jury's ability to comprehend what the critical phrase "sufficient to preclude" means in terms of the parties' respective burdens (or lack thereof) and how aggravating and mitigating factors are to be weighed against one another. See Silagy, 905 F.2d at 1014 (Ripple, J., dissenting from denial of rehearing en banc ). The court's contrary holding in Silagy notwithstanding, 905 F.2d at 998-99, "sufficient to preclude" seems to me to create a rebuttable presumption in favor of the death penalty. More important than our own divergent impressions, however, is the substantial evidence presented here that the instructions indeed do not adequately convey to jurors the balancing process in which they are to engage. See United States ex rel. Free v. Peters, 806 F.Supp. 705, 728-31 (N.D.Ill.1992); United States ex rel. Free v. McGinnis, 818 F.Supp. 1098, 1121-26 (N.D.Ill.1992). Thus, although we have imagined that jurors will readily discern their duty to consider the individual characteristics of the individual defendant and the nature of his crime, balance the competing equities, and impose the death penalty only if they unanimously agree that the aggravating circumstances outweigh the mitigating circumstances (Silagy, 905 F.2d at 999-1000; Williams, 945 F.2d at 938), Professor Zeisel's study suggests that jurors given the pattern instructions will, with an alarming frequency, misconstrue their task. As Judge Aspen explained below:

The source of this misunderstanding is conspicuous. It is ironic that to the extent that the sentencing scheme is designed to be a process of balancing aggravating and mitigating evidence, neither the IPI [pattern instruction] nor the Free instructions uses the term "balance" or "weigh." Rather, these instructions rely on the term "preclude," a word which is defined as "to prevent" or "rule out." See Webster's New International Dictionary of the English Language 1785 (3d ed. 1976). In addition to the likelihood that a juror would not know the definition of the word "preclude," the common usage of the term does not convey the notion that the Illinois death penalty statute requires a weighing process.

806 F.Supp. at 729-30 (footnote omitted); see also 818 F.Supp. at 1125-26.

I am reluctant to conclude as readily as the court has that the evidence on which Judge Aspen relied was insufficient to expose a constitutional defect in the jury instructions. See Free, 12 F.3d at 705-06; Gacy, 994 F.2d at 308-10. Although Professor Zeisel's study may have been imperfect, it was subjected to...