Weidner v. Thieret

• Decision Date: 13 March 1989
• Docket Number: No. 88-1692,88-1692
• Citation: 866 F.2d 958
• Parties: Randall WEIDNER, Petitioner-Appellant, v. James H. THIERET, Warden, Menard Correctional Facility, and Neil F. Hartigan, Attorney General of the State of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 958

866 F.2d 958

Randall WEIDNER, Petitioner-Appellant, v. James H. THIERET, Warden, Menard Correctional Facility, and Neil F. Hartigan, Attorney General of the State of Illinois, Respondents-Appellees.

No. 88-1692.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 1988.

Decided Jan. 31, 1989.

Rehearing and Rehearing En Banc Denied March 13, 1989.

Erica M. Landsberg, Sidley & Austin, Chicago, Ill., James S. Whitehead, Chicago, Ill., for petitioner-appellant.

Jack Donatelli, IAG, Chicago, Ill., for respondents-appellees.

Before CUDAHY and POSNER, Circuit Judges, and GRANT, Senior District Judge. ^*

POSNER, Circuit Judge.

This appeal from the denial of a petition for habeas corpus, 683 F.Supp. 1195 (N.D.Ill.1988), presents a difficult question relating to the procedures to be followed in habeas corpus proceedings in which the petitioner claims that he was convicted on the basis of a coerced confession, and hence deprived of his liberty without due process of law, in violation of the Fourteenth Amendment.

Randall Weidner was convicted in an Illinois state court in 1981 of the rape and murder of Sharon Visnack, whose husband had paid Weidner (and another man, Kubick) $500 plus a car and a gun to kill Sharon in retribution for her suspected infidelities. The hired killers raped her before murdering her and made signs of forced entry into the Visnack apartment in order to throw the police off the scent. (In fact they had entered by means of a key Visnack had given them.) All three confessed. They were tried together, and their confessions were introduced at the trial. The jury convicted all three. The judge sentenced Visnack to imprisonment for his natural life, Weidner to 80 years in prison, Kubick to 70 years.

Before trial, Weidner had sought unsuccessfully to suppress his confession, on the ground that it had been coerced. Evidence was presented at the suppression hearing that Weidner had been 17 years old when arrested, that he had an eighth grade education and could barely read, and that he had serious brain damage caused by heavy use of LSD and other drugs. Weidner testified that after being arrested he had been taken to the police station and questioned by two police officers, one of whom, Matthews, toyed with a gun while questioning him, told him that if he didn't make a statement he would be sentenced to the electric chair, and refused to let him use the telephone to call his parents and, in refusing, again threatened him with the electric chair. Weidner further testified that after Matthews got through with him, the other officer, Dorsey, playing the "good cop" role in the standard interrogation routine, took over the examination and elicited Weidner's signed confession within five minutes; this was forty minutes after the arrest. The officers denied having either threatened Weidner or refused him permission to telephone his family. They also testified that they had given Weidner the Miranda warnings both when he was arrested and again at the station house; he testified that he didn't remember whether they had done so when arresting him but thought they had done so at the station. A priest had been asked by Kubick's family to go to the station and had spoken to Weidner there immediately after Weidner confessed. The priest wanted to testify that Weidner had told him that the police had said he would be killed in the electric chair unless he talked, but the judge ruled that such testimony would be inadmissible hearsay as the report of a self-serving declaration by the defendant, and so refused to allow the priest to testify. See, e.g., People v. Barnes, 107 Ill.App.3d 262, 266-67, 63 Ill.Dec. 199, 202, 437 N.E.2d 848, 851 (1982); People v. Westefer, 169 Ill.App.3d 59, 119 Ill.Dec. 522, 522 N.E.2d 1381 (1988). The judge then made an oral ruling that the confession was admissible. He expressly found that the police had given Weidner the Miranda warnings. But concerning the issue of brain damage and the behavior of the police in conducting the interrogation, the judge stated only: "I further find from the evidence as to the evidence elicited and the totality of the circumstances that the statement or statements were given voluntarily and that no threats, coercion or otherwise induced such statements."

After exhausting his state remedies, see People v. Visnack, 135 Ill.App.3d 113, 126, 89 Ill.Dec. 901, 910, 481 N.E.2d 744, 753 (1985), cert. denied by Illinois Supreme Court, Weidner brought this federal habeas corpus action. As Judge Aspen noted in his opinion refusing to hold an evidentiary hearing and dismissing the action, the central factual dispute is whether the police officers threatened or otherwise coerced Weidner into confessing. Judge Aspen acknowledged that the state trial judge's ruling on this issue had been ambiguous (as in United States ex rel. Cole v. Lane, 793 F.2d 155 (7th Cir.1986) (per curiam), where we remanded). It was unclear whether the state judge had believed the police officers' testimony in its entirety, or had thought that even if they had behaved, in whole or part, as Weidner had testified they behaved, their behavior did not in the circumstances invalidate his confession. Judge Aspen disposed of the matter by ruling that "when the state court's findings of fact are unclear, we must assume that the state court correctly applied the law and gleam [sic ] from the court's legal conclusions the implicit factual findings. This presumption fails only if there is some evidence that the state court incorrectly applied legal principles or the law applied presents a novel problem." 683 F.Supp. at 1198 (citations omitted). Judge Aspen thought the law clear that if the police officers had threatened Weidner, his confession was involuntary and therefore inadmissible. "Accordingly, the [state] trial court's legal conclusion that the statements were given voluntarily contains an implicit factual finding against Weidner's credibility. Nothing in the record detracts from that factual finding, so we presume that it is correct." Id. at 1199. With the issue of threats out of the case, Judge Aspen had no difficulty in concluding that "the confession was knowing and intelligent," id., notwithstanding Weidner's conceded youth and contested brain damage. For the transcript of the suppression hearing showed that Weidner was able to understand the questions put to him on direct examination and cross-examination; the psychiatric examination that formed the basis of the testimony about his mental condition had been brief and had been conducted almost a year after the confession was made; and Weidner had passed most of the tests administered to him by the psychiatrist.

The question whether a confession has been coerced, like such questions as negligence and possession, would ordinarily be regarded as one of fact ("ultimate fact"), even if the underlying or subsidiary or "historical" facts--the facts that have no tincture of legal doctrine--are undisputed. Cf. Mucha v. King, 792 F.2d 602, 604-06 (7th Cir.1986). That indeed was how the question used to be treated in some states. See Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). No more. See Jackson v. Denno 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). A federal district court asked to decide whether a confession has been coerced and therefore cannot be used in a state criminal trial without violating the due process clause of the Fourteenth Amendment must make up its own mind on the question; it is not to extend to the state court's finding the deference that the habeas corpus statute requires be given state court findings of fact (see 28 U.S.C. Sec. 2254(d)). Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985).

This ruling implies an unusual division of responsibilities between state court and federal court. The state court finds the underlying facts, of the "who did what to whom, when, where, and why" variety, and the federal district court defers to these findings under section 2254(d); but then the federal court makes its own judgment whether the findings "add up" to coercion. Our review of that finding is, moreover, plenary--or so at least we held, though virtually without discussion of the question, in United States v. Hawkins, 823 F.2d 1020, 1022-23 (7th Cir.1987), and Sotelo v. Indiana State Prison, 850 F.2d 1244, 1247 (7th Cir.1988). Judge Easterbrook, concurring in Sotelo, has questioned the last step in this chain. See id. at 1253-55. The fact that Miller requires the federal district court to take a fresh look at the issue of voluntariness does not entail that we should do so as well. We should be wary of facile syllogisms, such as: the issue of voluntariness is one of law (Miller ); appellate review of determinations of law is plenary; therefore our review of the district judge's determination of the voluntariness of Weidner's confession should be plenary. The Supreme Court wanted independent federal review of the issue; hence it had to hold that the issue was one of law and therefore not subject to section 2254(d). For purposes of appellate review, however, the issue might be one of fact. It is nowhere written that the law-fact distinction must be treated the same in 28 U.S.C. Sec. 2254(d) and in Fed.R.Civ.P. 52(a). "Law" and "fact" do not in legal discourse denote pre-existing things; they express policy-grounded legal conclusions. We ought to ask what is gained and what lost by appellate second-guessing of a federal district judge's determination that a state criminal defendant's confession was voluntary. Cf. Pierce v. Underwood, --- U.S. ----, 108 S.Ct. 2541, 2546-49, 101 L.Ed.2d 490 (1988).

The summary treatment of the question in Hawkins and Sotelo (the former not even a habeas corpus case, and expressing merely a conclusion, the latter merely relying on the authority of the former) suggests that it is open to reexamination. But this is not the...