United States ex rel. Cosey v. Wolff

• Decision Date: 10 November 1981
• Docket Number: No. 81 C 593.,81 C 593.
• Citation: 526 F. Supp. 788
• Parties: UNITED STATES of America ex rel. Larry COSEY, Petitioner, v. Dennis WOLFF, Warden, and Tyrone Fahner, Attorney General of the State of Illinois, Respondents.
• Court: U.S. District Court — Northern District of Illinois

526 F. Supp. 788

UNITED STATES of America ex rel. Larry COSEY, Petitioner, v. Dennis WOLFF, Warden, and Tyrone Fahner, Attorney General of the State of Illinois, Respondents.

No. 81 C 593.

United States District Court, N. D. Illinois, E. D.

September 28, 1981.

On Motion For Reconsideration November 10, 1981.

Sam Adam, Chicago, Ill., for petitioner.

Office of the Illinois Attorney General, Chicago, Ill., for respondents.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

After his October 4, 1978 conviction of attempted murder, armed robbery and aggravated battery in the Circuit Court of Cook County, petitioner Larry Cosey ("Cosey") was sentenced to 20 years in the state penitentiary. Cosey exhausted his available state remedies and then brought this petition for a writ of habeas corpus, alleging improprieties of constitutional scope in the conduct of his state court trial and appeal. Because Cosey was denied the effective assistance of trial counsel¹ his motion for summary judgment is granted and the writ of habeas corpus is issued.

Factual Background²

On the morning of November 6, 1977 Michael Lightfoot ("Lightfoot") was discovered in the trunk of an automobile by an early-morning jogger. Lightfoot had been shot six times and badly beaten as well. R. 165-68. Within hours of arriving at Billings Hospital, Lightfoot told police investigators that two assailants unknown to him were responsible for his injuries, that approximately $600 had been stolen from him during the assault and that the attack had occurred at 71st Street and Jeffrey Avenue. R. 150.

Soon thereafter Lightfoot began to tell police a different story — one that he repeated at trial, perhaps with minor variations. R. 152-53. At trial he recounted the following events:

Between 2 and 3 a. m. November 6, Larry Cosey had arrived at Lightfoot's apartment with a bag of heroin. Cosey's visit was not unexpected; Lightfoot and Cosey were partners in drug trafficking. They then proceeded to Cosey's house to divide the heroin into small packages (required for street sale) and to count money. Lightfoot was carrying a .38 revolver and about $3,000 in cash. R. 85-92.

After arriving at Cosey's basement apartment Lightfoot placed his .38 and the $3,000 next to him on a table and began to "count" money given to him by Cosey. At that point Ernest Van Johnson attacked Lightfoot with the victim's own pistol, Cosey joining in the attack. Lightfoot resisted vigorously even after six bullets had been fired into his head, neck, intestine and wrist. After hitting Lightfoot on the head with hammers, Cosey and Johnson left him in the trunk of the car in which he was discovered the following morning. R. 92-111.

Lightfoot explained the radical change from his original story as to the night's events by saying that initially he did not want to "get Cosey in trouble." R. 152. In his own testimony Cosey claimed that during Lightfoot's hospital stay he had tried to blackmail Cosey by threatening to blame Cosey for the assault unless he could obtain $20,000 and a quantity of heroin for Lightfoot. R. 200.

Cosey wholly denied Lightfoot's story, testifying that the facts were these: Early on the evening of November 5 — perhaps at 5 p. m. or so — Cosey had borrowed Lightfoot's car and gone to a movie. Following the movie Cosey drove around the city to "kill time" and finally returned to Lightfoot's apartment at about 2 a. m. Lightfoot then drove Cosey home and said that he was on his way to 71st and Jeffrey to pick up some cocaine. Cosey denied that he and Lightfoot were involved in the drug trade together. R. 181-83.

State Court Decisions

Cosey waived his right to a jury trial. After a bench trial the Circuit Court judge found Cosey guilty on all counts, relying entirely upon the credibility of the respective witnesses (R. 239):

The Court finds the testimony of Mr. Cosey and Mr. Van Johnson patently incredible and, although there were some inconsistencies in the testimony of Michael Lightfoot concerning amounts of money and the fact that he did not reveal the names of his assailants until he was mending from his wounds and the Court has further considered the fact that Lightfoot has said he uses narcotics and deals in narcotics but the Court ... is convinced by the evidence, beyond a reasonable doubt, of the guilt of the two defendants.

Cosey's newly-retained counsel before the Illinois Appellate Court challenged his trial counsel's effectiveness. At the heart of the claim was the argument that Stello, trial attorney for Cosey and Johnson, had failed to investigate and prepare their case adequately. In support the new counsel produced the affidavits of five potential witnesses (located by new counsel during the 32-day period between Cosey's conviction and sentencing, R. 64-70) who would have testified to facts indicating the innocence of Cosey and Johnson:

Cosey's step-father would have testified that he was on the first floor of the house on South Euclid Avenue where the assault was said by Lightfoot to have taken place, that he heard no unusual noises coming from the basement in the early morning of November 6, that he observed the basement the next morning and that its condition was as it had been the previous evening. R. 64-65. Cosey's mother would have testified similarly as to the condition of the basement shortly before and after the alleged events described so graphically by Lightfoot. Al Merrick, a contractor hired to refurbish the bathroom in the basement, stated that he had left the shower in a "state of disrepair" on the day before the alleged events took place and that it was in precisely the same state when he returned to it the day after. R. 69. All that testimony, if given, would have challenged important details of Lightfoot's testimony, as well as forcing the prosecution to explain why using the basement as a shooting gallery and putative killing ground had not produced any overt change in its condition. In addition a second-floor tenant in the building would have testified that she was at home throughout the night of November 5-6 and heard no noises from the basement, specifically gunshots. R. 70. Finally, Johnson's girlfriend would have testified that she was with him, at her house, throughout the night in question. R. 68.

Cosey's Sixth Amendment argument was rejected by the Appellate Court in People v. Cosey, 82 Ill.App.3d 968, 972-73, 38 Ill.Dec. 425, 403 N.E.2d 656, 660-61 (1st Dist. 1980). It measured trial counsel's competency against a standard enunciated by the Illinois Supreme Court:

A strict test is applied in determining whether privately retained counsel is incompetent:

"In such a case the court will not reverse a conviction because of the incompetency of counsel unless the representation is of such a low caliber as to amount to no representation at all or reduces the court proceedings to a farce or sham."

It concluded that "we are unable to conclude that counsel's representation amounted to no representation at all or reduced the court proceedings to a farce."

Adequacy of Trial Counsel's Representation

In applying the "farce or sham" test the Illinois Appellate Court committed error of constitutional dimensions. That criterion was specifically rejected by our Court of Appeals in favor of a "minimum standard of professional representation" some six years ago in United States ex rel. Williams v. Twomey, 510 F.2d 634, 640-41 (7th Cir. 1975), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975). Accord, United States v. Starnes, 644 F.2d 673, 681 (7th Cir. 1981); Clay v. Director, Juvenile Division, 631 F.2d 516, 522 (7th Cir. 1980); Matthews v. United States, 518 F.2d 1245, 1246 (7th Cir. 1976).³

However that constitutional error only begins rather than ends the inquiry.⁴ It is necessary to examine whether Cosey was denied effective assistance under the Williams test and, if so, whether sufficient harm could have flowed from that denial to justify granting a habeas writ. Cf. United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981) (requiring "demonstrable prejudice, or substantial threat thereof").

Step one of the inquiry leads to a ready answer. Cosey's trial lawyer did not produce a single witness in support of Cosey's testimony, though at least five were available.⁵ Instead counsel merely cross-examined the state's witnesses as best he could, made many evidentiary objections to testimony (quite often sustained) and made a closing statement to the trial judge. True enough, in none of those activities did counsel fall below a minimum standard of professional representation. Indeed, many of his evidentiary objections indicate a trial counsel of some skill in criminal matters.

But counsel's fatal flaw was his absolute failure to present any affirmative evidence at all on behalf of his clients, evidence that clearly existed in this case. Cf. Matthews, 518 F.2d 1245; United States ex rel. Cyburt v. Rowe, 638 F.2d 1100, 1105 (7th Cir. 1981). Many cases in this Circuit and others have disallowed claims of ineffective assistance of counsel because, in essence, losing criminal defendants have merely second guessed the strategy or tactics of their defense counsel. See, e. g., United States v. Fleming, 594 F.2d 598, 607 (7th Cir. 1979) (Chief Judge Fairchild stating, "... we adhere to the view that tactical or strategic errors during trial do not raise a presumption of failure to meet the constitutional guarantee of adequate counsel").⁶ But in this case counsel's presentation of no evidence can hardly be defended as "strategy" or a "judgment call," incorrect only in hindsight. It can scarcely have been a conscious decision made after examining both sides of a close question with the skill of the experienced practitioner.⁷

Nothing can justify gross neglect of the lawyer's professional obligation to defend his client zealously. In essence, Cosey was sent to prison...