Hale v. United States , 11–3868.

• Decision Date: 08 May 2013
• Docket Number: No. 11–3868.,11–3868.
• Citation: 710 F.3d 711
• Parties: Matthew HALE, Petitioner–Appellant, v. UNITED STATES Of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

710 F.3d 711

Matthew HALE, Petitioner–Appellant,

v.UNITED STATES Of America, Respondent–Appellee.

No. 11–3868.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 2013.

Decided March 5, 2013.

Rehearing and Rehearing En Banc Denied May 8, 2013.

Clifford J. Barnard, Attorney, Boulder, CO, for Petitioner–Appellant.

David E. Bindi, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent–Appellee.

Before EASTERBROOK, Chief Judge, and POSNER and TINDER, Circuit Judges.

EASTERBROOK, Chief Judge.

Matthew Hale was the head of a group now known as the Creativity Movement. It used to call itself the World Church of the Creator but lost a trademark battle with an organization that had a senior claim to that name. See TE–TA–MA Truth Foundation–Family of URI, Inc. v. World Church of the Creator, 297 F.3d 662 (7th Cir.2002). Hale then put out a contract on the life of District Judge Lefkow, who entered the injunction implementing that decision. He was convicted of soliciting a crime of violence and obstructing justice. We affirmed. 448 F.3d 971 (7th Cir.2006). A person sympathetic to the Creativity Movement has been convicted of threatening the life of the foreman of the jury that found Hale guilty. See United States v. White, 698 F.3d 1005 (7th Cir.2012).

The Creativity Movement is racist. Its Five Fundamental Beliefs are:

Based on the Eternal Laws of Nature, History, Logic and Common Sense we Creators believe:

1. WE BELIEVE that our Race is our Religion.

2. WE BELIEVE that the White Race is Nature's Finest.

3. WE BELIEVE that Racial Loyalty is the greatest of all honors, and racial treason is the worst of all crimes.

4. WE BELIEVE that what is good for the White Race is the highest virtue, and what is bad for the White Race is the ultimate sin.

5. WE BELIEVE that the one and only, true and revolutionary White Racial Religion—Creativity—is the only salvation for the White Race. To the fulfillment of these Religious Beliefs we Creators forever pledge our Lives, our Sacred Honor and our Religious Zeal.The Movement's founder was Ben Klassen. According to his book The White Man's Bible, not only all non-whites but also all Jews, Christians, and Muslims deserve contempt. Jews receive special opprobrium as the supposed masterminds of the white race's decay; Christians are censured for the religion's role in the decline of the Roman Empire (which the Movement treats as civilization's apex); all theistic religions are ridiculed for promoting what the Movement calls the “spook in the sky” fallacy (though the Romans worshipped gods). Medicine is seen as a Jewish hoax aimed at weakening the white race. The Movement's web site declares: “all medicines, drugs, narcotics and chemicals are poisonous and toxic to the human body”. The legal profession is condemned as a bleeding-heart group that supports the weak, while the Movement favors the strong. Farmers are denounced for using fertilizer, which according to the Movement injures consumers. The web site states that food “must be uncooked, unprocessed, unpreserved and not tampered with in any other way. This further means it must be organically grown, without the use of chemicals.”

Although the Movement declares itself non-violent (with this proviso: “we take deliberate care that the misfits are culled”), the jury found that Hale planned violence. He contends in this proceeding under 28 U.S.C. § 2255 that the convictions should be set aside. The district court held, however, that no constitutional error occurred and denied Hale's petition. 2010 WL 2921634, 2010 U.S. Dist. LEXIS 73604 (N.D.Ill. July 22, 2010), reconsideration denied, 2011 WL 5104630, 2011 U.S. Dist. LEXIS 124657 (N.D.Ill. Oct. 27, 2011). The district court's opinions comprehensively address Hale's contentions. We add only a few thoughts about his principal appellate arguments.

Chief among them is a contention that the trial judge violated the Constitution by excluding Hale from the portion of the jury selection that dealt with pretrial publicity—a potentially sensitive subject, because Hale had praised Benjamin Smith, who in 1999 shot at least 11 members of minority groups. Hale's support of Smith had been noted in the press. It was essential to learn whether members of the venire could distinguish Smith's crimes from the charges against Hale and also put aside anything they may have heard or read about Hale himself. Both the judge and Hale's lawyer believed that these inquiries would be more fruitful if made outside of Hale's presence.

The judge called members of the venire into a small conference room and questioned them one at a time, thinking that this setting would promote candid answers—and ensure that an answer disclosing something prejudicial would not taint the rest of the venire. Hale did not protest, but neither did he formally consent on the record. We held in United States v. Rodriguez, 67 F.3d 1312, 1316 (7th Cir.1995), that consent to questioning the venire outside the accused's presence is not one of the steps a lawyer can take on his client's behalf. Personal consent is essential. Hale maintains that this means express consent, directly to the judge, and that consent cannot be inferred from his conduct or anything counsel says.

During jury selection, the judge asked Hale's lawyer whether his client agreed to questioning outside his presence. His lawyer said: “Mr. Hale had asked whether I thought he should come here. I said I would report back. I said I thought it okay if he was not here.” The judge took this as conveying Hale's consent. Hale now contends that the judge was mistaken. We need not decide, because Hale defaulted that contention and cannot present it on collateral attack unless he shows both cause and prejudice. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

The argument has been doubly defaulted. First, Hale did not protest even though he knew exactly what was happening. He sat in the courtroom while the judge and the lawyers were in the conference room, to which members of the venire were called one at a time. Hale, a law-school graduate, was not shy about telling the judge that he disagreed with one or another step that his lawyer had taken. Yet he said nothing about questioning jurors outside his presence. Had Hale raised the subject, the judge could have either obtained Hale's consent on the record or permitted him to observe all questioning. Either way, the issue that Hale now identifies could have been fixed before it became a problem. That's why courts require contemporaneous action.

The second default was failure to raise the issue on direct appeal. Because Hale knew what had occurred, any claim of error could and should have been presented on appeal. Hale had by then fired his lawyer and was representing himself. He contends that the lack of a transcript of what occurred in the conference room is “cause” for not raising the issue immediately. But why was there no transcript? Only because Hale failed to order one. A person who elects to represent himself cannot contend that his own decisions vitiate the judgment. Faretta v. California, 422 U.S. 806, 834–35 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Hale's brief in this court tells us that he did not order that transcript because he thought that the proceeding had been sealed. If that's what he thought—though the district judge never said any such thing—he could have asked that the events be unsealed, or that a transcript be submitted to the court of appeals for review in camera. He made neither request, so he must accept responsibility. (Anyway, we don't see why, on Hale's view, a transcript was necessary. Hale maintains that only a formal consent given directly to the judge could have authorized the proceedings in the conference room. Yet Hale was never in that room, so the nonexistence of the kind of consent that Hale insists is essential could have been...