Charles Silagy, Cross-Appellant v. Howard Peters, Iii, Warden, Pontiac Correctional Center, Cross-Appellee

standpoint, are not tax plight their from a claims or as extracontractual

recoverable equitable relief” un- appropriate

as “other 502(a)(3)(B)(i) any other section

der § already said as court has

ERISA. Our in Davis (and the same effect

much

Varhola), circuits which have and all other interpret- question have so

considered this allegation in I find no Because

ed ERISA. complaint that SNB amended

the Warrens’ specific in- specific duty or

was under a complete the transfer of the

struction 31, 1984, I can see no

funds December my extensive efforts of breth- for the

basis of action for the

ren to create a cause equitable principles general

Warrens on language of ERISA.

apart from the the district the decision of

I would affirm accordingly DISSENT.

court. I SILAGY, Petitioner-Appellee,

Charles

Cross-Appellant, Warden, PETERS, III, Pontiac

Howard Center, Respondent-Ap

Correctional Cross-Appellee.

pellant, 89-2129, and 89-3117.

Nos. 89-2212 Appeals,

United States Court of Circuit.

Seventh

Argued 1990. Jan. 2,May 1990.

Decided July Amended 1990.

As Rehearing on Denial of

As Amended Rehearing En Banc

July enough I have room ... so

decided didn’t bit, door for a little fought I with the outside, it got open I ... because from the inside. open will not Had this time down all crank window Gabrielsen, Mys- G. Timothy M. Patricia got hold of her throat. And I still Defender, za, Appellate of the State Office And so I throwed her out chokin’ her. Ill., Silagy. for Charles Springfield, truck, got I ground and outta the Gen., Dona- Atty. Jack Hartigan, F. Neil a-stompin’ jum- her and I and started Ill., Gen., Chicago, telli, Atty. Asst. head, down, up and on her pin’ Peters, III. Howard road, and she I her across the drug then breathin’, my I out so took was still Block, Mascherin, Ran- L. Jenner & Terri pulled it and her pocket opened and knife Isaacson, Stone, P. Office N. Robert dolph away, and her and blouse stabbed coat County, Defender Cook of the Public six times in the approximately five or Bradford, P. Ill., James Chicago, David J. I left side and then chest on the left-hand Niles, Ill., Of- Bailinson, for amicus curiae there, got lay and went and into her back County Defender Public fice the Cook my truck left. and Justice Center. and MaeArthur occurred, went Petitioner After that had Strawn, Anderson, & R. Winston Kimball he apartment which shared back to National Ill., amicus curiae Chicago, and Miss Budde-Waters with Miss Block Defender Ass’n. Legal Aid and Shortly and face. there- wash hands Ill., Chicago, for amicus Buckley, P. John after, arrived back Miss Budde-Waters Attorneys Jus- for Criminal Illinois curiae refused to leave. As apartment and tice. he: stated that response, Petitioner TV, and COFFEY, and toward the ... over EASTERBROOK throwed her Before down, and her I, her head KANNE, Judges. ... throwed Circuit table, over, I and went and hit the coffee KANNE, Judge. Circuit couple o’ times head. kicked her drawer, go to a morning proceeded of Feb- early And then I During the hours Block, Cheryl big knives and butcher 1980, body of to where ... ruary 14, kept.... Petitioner, Silagy, And utensils were Charles knives and girlfriend that I knew dis- a knife would picked were me out Anne Budde-Waters and that of bend, and I back over in Vermil- and went separate locations not in two covered left and side had been her blouse County, Illinois. Each snatched lion back, her four as a result it and stabbed yanked and had died repeatedly stabbed continuously in the chest. by those hemorrhaging caused times of massive stab wounds. led to These confessions police sever- these mur made conviction for prosecution a confession and and later, Silagy stated that found days al The Illinois which same ders. as in an subsequently him guilty Miss Block had been sentenced him night club to local they driving provisions from a of the Illinois under the were death 38, he be- statute, eh. Silagy recounted that Ill.Ann.Stat. another bar. penalty death 1979). the course ¶ gan 1(d)(Smith choke Miss Block Hurd 9— argument. He continued: Petitioner’s con of this Court of Illinois affirmed 101 People Silagy, and killed viction sentence. and My spin-around, done a truck 415, 792, 147, 461 N.E.2d Ill.Dec. cho- Ill.2d itself, started 77 I shut it off and 227, 873, 105 denied, more, her cert. kept chokin’ kin’ her some Silagy subsequently (1984). south, and so L.Ed.2d up car come and a post-conviction relief petition for out, filed a like we was makin’ I acted by the trial court. was dismissed clear, cho- which and I commenced car was all by the Illinois affirmed hand, I This dismissal was then my left kin’ her with People Silagy, Although expressly hold- stated its Supreme Court 677, 830, fur- ing, appears the district court 357, 507 N.E.2d Ill.2d 107 Ill.Dec. pretrial concluded that this lack of denied, 98 ther cert. 108 S.Ct. implicates Thereafter, notice also the sixth amendment (1987). he filed a right assistance of counsel.” “effective rehearing in the United States petition for Finally, while not a basis for the district denied. petition This Supreme Court. decision, argues court’s Illinois, Silagy v. Illinois is unconstitutional in that statute (1987). In November 98 L.Ed.2d impact provisions to raise a of its petition for writ of Silagy filed a im- presumption in favor of the rebuttable States District corpus in the United habeas in violation of position of death District of Illinois. for the Central amendment. he raised various issues petition, In this his conviction and propriety of bоth must address various issues We also denied Peti The district court sentence. prayer Silagy support raises in of his conviction, challenges to his but tioner’s that this court reverse his conviction. We issued a writ to vacate and the discuss both the factual bases will Illi on its conclusion based they arise in substance of those issues as penalty statute was violative nois death the course of our review. sixth, eighth fourteenth amend and Silagy ex rel. v. A. FACIAL ATTACK ON ILLINOIS States United ments. Peters, (C.D.Ill.1989). STATUTE F.Supp. 1246 713 appeal from this Silagy the State Both Petitioner’s attack on the constitutionali- final decision. “facial” ty of the Illinois statute both argu- applied.” regard “as With I. ment that the Illinois statute is unconstitu- must ad primary face, ap- issue which we shotgun The tional on its Petitioner’s constitutionality the Illinois proach arguments dress is the raises three of conse- penalty First, The district court’s quence. argues death statute. that the discre- penalty 9-l(d) Illinois death prosecutor conclusion that tion afforded the under § deciding based al to seek statute is unconstitutional was of the statute in whether penalty particular rationale of the in a case vio- exclusively most on the the death Carey guarantee People ex rel. eighth lates the amendment’s dissenting opinion in Cousins, 531, 137, punishment.” against Ill.Dec. “cruel and unusual 77 Ill.2d 34 denied, Second, argues that the Illinois cert. (1979), 445 Petitioner 397 N.E.2d 809 prior 1603, notify failure to the accused 953, L.Ed.2d statute’s 100 63 788 S.Ct. penalty will be to trial the death (1980). That concluded dissent sought in his case violates both the sixth prosecutorial dis grant statute’s Illinois right assistance of amendment to effective 1(d) request sepa a under cretion § 9— and the fourteenth amendment counsel violative of sentencing hearing rate was right process. Finally, to due against guarantee eighth amendment’s argues that the Illinois statute is unconsti- capricious” imposition of “arbitrary practical in effect of its tutional addition, In the dissent penalty. the death 9-l(g) pre- is to a rebuttable establish explica § concluded, much although without in sumption penalty in favor of the death tion, provide the statute’s failure eighth violation of the amendment. the death pretrial to an accused that notice his case penalty sought was will be Discretion under Prosecutorial process. of due violative of basic notions 9-l(d) § 151-52, N.E.2d at Id. 34 Ill.Dec. at 397 adopted eighth these initial 823-24.1 The district court Petitioner’s on the discretion afforded own in its final order. concern focuses conclusions as its 129, 179, 895, 1346, constitutionality N.E.2d Ill.2d 58 Ill.Dec. 1. This stance as to the 1011, denied, subsequently penalty cert. Illinois death statute was Lewis, (1982). adopted by People the dissent 9-l(d) sentence, imposed it could not under form of be prosecutors Illinois request separate sentencing under circumstances which a a statute potential imposition risk that it would be inflicted hearing consider the substantial “arbitrary capricious defen- an manner.” 428 sentence for a convicted of a death 9-l(d), any 96 S.Ct. nor other sec- U.S. at at 2932. Court dant.2 Neither § statute, penalty death further noted mandate Furman tion of the Illinois guidelines any to was that discretion afforded sentenc provide express legislative ing body imposing penalty the death determining under prosecutor assist narrowly must channeled so as to mini separate request what circumstances capri Moreover, mize the risk of arbitrariness sentencing hearing. under ciousness. Id. at 96 S.Ct. at 2932. not make prosecutor need Illinois scheme guided has subse This mandate Court’s has request until a conviction been such penalty quent jurisprudence. death Categorizing prosecutorial obtained. post-con- the realm of discretion as within years Four after the decision Fur- which served viction discretion man, eighth considered the concern as the focus of Court’s posed by post-Fur- amendment issues five Georgia, 428 U.S. Gregg v. statutes. each of man (1976) proge- and its cases, these the Court’s decision as to argues that the failure of the ny, Petitioner the statute unconstitutional whether legislative guide- prоvide Illinois statute “sentencing the nature turned on exercising prosecutor in lines to assist the procedures” prescribed by particular violates the amend- this discretion pro- those statute and the extent to which agree. do not ment. We sentencing authority’s cedures focused the particularized nature of attention claim, it is nec- assessing particularized character- the crime and the examine the Court’s essary to defendant.3 istics of each and, in jurisprudence so eighth amendment doing, focus on the Court’s concerns Gregg of these cases was The first in decisions. The they presented upheld are those supra, in the Court Georgia, Georgia, Georgia in Furman v. constitutionality Court’s decision death the 2726, 238, 92 S.Ct. 33 L.Ed.2d scheme as it penalty statute. Under the 1976, (1972), Georgia the foundation of our in the class of serves as in existed capital ‍​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌​‌​​​​​​​​​‌​​​​‌​​​‍punishment presented eligible The issue to the Court analysis. murderers specifi- imposition through the statute’s was whether “the was narrowed in Furman statutory aggravating circum- in of ten carrying penalty out of the death cation and stances, de- of which must have been one cases before the constitute^] court] [the beyond by jury the to exist in termined punishment unusual violation cruel and sentence a death reasonable doubt before fourteenth amendments.” Georgia Code Ann. imposed. 239, While this could be 92 S.Ct. at 2727. Id. at addition, (Supp.1975). In 27-2534.1 by the various con- not resolved issue was § any appro- decision, jury authorized to consider in that was curring opinions presented mitigating or circum- priate aggravating recognized Gregg later the Court 27-2534.1(b). Believing that of those stances. supra, that the residue Georgia, requirements would as- that, procedural these opinions because of concurring was jury’s be attention would penalty as a sure uniqueness of the death (1978), disposition (d) provides part: 57 L.Ed.2d 973 2. Section 9-1 upon votes of State, of these cases turned each by requested the court Where joint opinion sentencing рroceed- separate three Justices who delivered a shall conduct ing purpose the existence of factors set to determine each of the five cases. For the (b) any and to consider in subsection clarity, forth “decisions cases, we refer to we note that when mitigating aggravating factors as indicated discussing our these five of the Court” in (c). in subsection joint opinion, delivered reference is to that Stewart, Powell, and Stevens. Justices Burger pointed later out in Chief Justice 3. As Ohio, 586, 601, Lockett v. evidentiary hearing conduct- particularized nature of rate would be focused “on the particularized jury character- whether the crime and ed before the determine defendant”, imposed. of the individual penalty istics the death should be jury’s that the discretion mitigat- Court concluded upon Based its consideration of the adequately impor- channeled more was presented ing aggravating evidence tantly, prompted the concerns which evidentiary hearing, the Court’s decision Furman were “advisory opinion” as to would render an Georgia Gregg, present under the statute. im- penalty the death should be whether 206-07, U.S. 96 S.Ct. at 921.141(2)(b)and posed. Fla.Stat.Ann. §§ (c) re- (Supp.1976-77). The final decision upholding The Court’s the Texas decision sen- garding imposition of the death Texas, penalty death statute Jurek v. made tence in each case would be judge, impose who could trial premised was on the same funda- find- only making after a written capital sentenc- mental concern. Under Texas, mitigating circumstances were ing that the ing scheme in force in once a defen- outweigh aggravating capital crime dant had been convicted of insufficient 921.141(3). sentencing procedure required The Court circumstances. § questions in a procedures employed be with three found that post-conviction sentencing hearing. Tex. the constitutional deficien- Florida satisfied Crim.Proc., (Supp.1975- Art. 37.071 Furman, Code stating: cies identified in 76). the state had If the found that Flоrida, sentencing authority in [t]he proved beyond a reasonable doubt that the weigh eight judge, is directed to trial questions each the three was answer to against aggravating circumstances seven im- “yes”, penalty the death was to be whether mitigating factors to determine 37.071(c). Thus, posed. Art. the issue imposed. shall This the death presented to the Court was whether requires judge the trial determination jury, answering questions, these three the circumstances of the crime focus on permitted to consider all of the miti- defen- the character of the individual gating aggravating circumstances sur- dant. rounding the defendant and his crime. 96 S.Ct. at 2966.4 Proffitt, 428 U.S. Concluding capital sentenc- that the Texas eighth pronouncement on A recent ing procedure “guides and focuses the penalty in the death amendment concerns objective partic- jury’s consideration 492 Penry Lynaugh, came in v. context circumstances of the individual of- ularized —, 2934, L.Ed.2d 256 109 S.Ct. 106 U.S. and the individual offender before fense (1989). ruling pen- In the Texas death sentence”, impose can a the Court deter- statute, alty applied to the facts of not viola- mined that the Texas statute was case, prohibiting eighth was unconstitutional in the and fourteenth amend- tive of Jurek, 274, giving all of the 428 at 96 at the effect to ments. U.S. S.Ct. mitigating surrounding the indi- 2957-58. evidence defendant, reaffirmed its vidual the Court Florida, 242, 428 U.S. 96 Proffitt principles reliance on the established 2960, (1976), the Court S.Ct. 49 L.Ed.2d progeny. The stat- Furman and its Court constitutionality upheld of the Florida the ed: capital sentencing procedure. Under the ‘reliability in statute, order to ensure Florida once a defendant was [i]n offense, appropri- capital sepa- a that death is guilty found of a determination cases, degree part murder. As of its 4. In two additional Woodson v. North victed of first 280, 2978, cases, Carolina, the Court relied on the 428 U.S. 96 S.Ct. 49 L.Ed.2d rationale in these Louisiana, (1976) mandatory nature these statutes and Roberts v. fact that the 944 325, sentencing authority permit to con- did not aspects the North Car- sider the relevant of the crime and the Court declared unconstitutional Woodson, penalty death statutes individual nature of the defendant. olina and Louisiana which, instance, 303-04, 2991; Roberts, "mandatory S.Ct. at in each called for a 428 U.S. at 334-36, penalty” whenever a defendant was con- 428 U.S. at 96 S.Ct. at 3006-07. death case’, argues, however, punishment specific ate in a Wood that the fact prosecutors son, permitted that Illinois are 96 S.Ct. at “post-conviction” exercise this discretion give to consider and must be able differentiates the Illinois statute from mitigating any effect to evidence rele by those have been considered background, char vant to a defendant’s consequence, Court as a renders it acter, or the circumstances of the crime. violative of the and fourteenth —, Id. at 109 S.Ct. at agree amendments. We that the Illinois posed by issue The fundamental Si unique statute is from other state’s stat- context, therefore, lagy in this is whether utes that have been addressed this re- post-conviction by discretion exercised spect, but we do not believe that this 9-l(d) prosecutor a under of the Illinois § uniqueness is of constitutional dimension. category properly statute falls within that prosecutor An Illinois exercises the same “sentencing which has discretion” discretionary authority fundamental under focus of the concern. served as the Court’s 9-l(d) prosecutors as do in other states § that it does. The con We do not believe penalty Specifi- that have death statutes. has been to limit and cern of cally, prosecutor determines in each the discretion of the channel by case whether the crime committed judge body i.e., the —which — eligible capital defendant makes him actually imposes given the sentence in a statute, sentence. Under Illinois Harris, Pulley case. See necessarily pros- determination focuses the (1984) (In 9-l(b) ecutor’s attention on of the statute § cases, subsequent discussing Gregg and eight “aggravating lists factors” attention on the ex the Court focused its crime, pertaining to the one of which must statutory systems tent to which the state proved beyond by be reasonable doubt discretion). jury’s directed and limited imposition the State before the of the death 9-l(d) prosecutor’s decision under A even considered sentence forego to commence or the Illinois statute substantially jury. This is the same deci- hearing is not a decision to death prosecutor to a sion which Rather, death sentence.5 “impose” the who, Georgia penalty under the stat- limited to that of initiat prosecutor’s role is example, pretrial ute for must determine— ing proceedings. stage capital the indictment —whether addressed the Court in The concerns charged. Georgia crime will be Under regard progeny and its with Furman Gregg, scheme as it existed at the time of limiting “sentencing the discretion prosecutor guided by a list of six play authority” simply do not come into categories of crimes for which the death Illinois statute until after the under the deciding imposed. could be requested separate a sen- prosecutor crime, has charge capital whether or not to a a hearing sentencing tencing formal Georgia prosecutor necessarily considered such, procedures have commenced. As any whether of those six crimes could be pro- fact that the Illinois statute does not proved beyond a reasonable doubt to the guidelines Thus, legislative vide for to assist the jury. the two schemes are substan- exercising in prosecutor tially prosecutor’s his discretion does the same in that implicate penalty guided not the Court’s amend- decision to seek the death is by of the ment concerns. each instance his assessment argument po prosecutor "impose” Contrary does not the sentence 5. to Petitioner’s by adopted People simply by requesting separate sentencing sition the dissent ex rel. a hear Cousins, prosecutor’s post-conviction Carey Rather, a v. ing. penal as under other state’s deаth under the Illinois statute exercise of discretion ty procedures, imposition of the sentence is “judicial not amount to a function.” This does judge left to the or after careful considera pointed recognition the dissent’s fact is out aggravating mitigating tion of the circum imposition Cousins that "the of a criminal sen surrounding stances the crime and the individu 818, judicial tence is a function.” 34 Ill.Dec. at al defendant. statute, at Under the Illinois 397 N.E.2d 818. 994 de- such a representation to vide effective element of specific a proving

possibility of pre- can be assistance gree that ineffective a reasonable doubt. beyond the crime that it does. fact, see how the not believe fail to We do we sumed. on this Based impli- decision prosecutorial timing of this from follows of this issue Our resolution concerns. eighth amendment cates in United decision Supreme Court’s the in- jeopardizing Indeed, than rather 648, Cronic, 104 S.Ct. v. States sentencing procedure, of death tegrity Cronic, (1984). In 2039, 657 80 L.Ed.2d grant Illinois statute’s we believe consider, in the asked the Court was may enhance discretion post-conviction ineffective actual of evidence absence in this decisions prosecutorial quality of counsel, when part of trial on the ness prosecutor permits the regard that counsel’s defense with state interference the evidence weigh all of may defense an effective ability to conduct proceedings stage of the guilt/innocence of the sixth presumed be violative be seeking propriety of the his assessment concluded that The Court amendment. particular case.6 in that death in presumption circumstances certain authority’s ulti- Thus, like v. may arise. Henderson See effectiveness penalty, death impose the mate decision Cir.1988), 492, (7th Thieret, 499 859 F.2d decision preliminary prosecutor’s — 1648, U.S. -, denied, 109 S.Ct. cert. case particular death seek the (1989); States United only by the nature not guided will be 725, n. 33 Morales, F.2d 752 & Moreno any individualized itself, also crime but dеnied, (1st Cir.), cert. U.S. may of the defendant characteristics (1987). Specifi L.Ed.2d 397 S.Ct. trial. during the course come out presumption that a cally, the noted Court reasons, reject Petition- all of these For “a there is when ineffectiveness arises challenge to the eighth amendment er’s counsel,” if “counsel complete denial penal- death the Illinois constitutionality of prosecution’s subject the entirely fails to ty statute. testing." adversarial meaningful case at Cronic, Notice Pretrial 2. Lack of proceed necessarily must Petitioner’s claim claim sixth amendment recognized the Court’s third of under the assist right to “effective focuses counsel is i.e., although “when scenarios — to which and the extent ance counsel” trial, the accused to assist available protects penalty statute Illinois death fully any lawyer, even the likelihood regard, right. In this effective as one, provide could competent right to “ef recognized has presumption of that a is so small sistance protects a of counsel” fective assistance 659- Id. at appropriate....” prejudice only from “actual not defendant criminal 2047. We believe do counsel, but also ineffectiveness” the cer knowledge regarding pretrial a de prejudice to in which circumstances penalty is for the tainty request of a effectively repre ability to fense counsel’s necessary to sixth protect presumed. sent Strickland concern. 668, 104 S.Ct. Washington, 466 Silagy’s to focus attempt In an is to de (1984). Our task issue, regard properly frame in this pretrial no lack of whether termine defense necessary point out that to inter it is statute the Illinois provision tice notice as completely not without pro- counsel is ability to counsel’s with defense feres involved, decline assume process is we to that a accept assertion Petitioner’s do 6. We not unexplained See also pro- is invidious.” stage what is of the at this prosecutor's decision 225, (“absent Gregg, at 96 S.Ct. at 2949 by any "caprice ceedings be tainted will contrary it cannot be assumed during developed facts have emotion” which charging their prosecutors will be motivated in Court stated trial. As the course McClesky the likelihood other than decision factors Kemp, penalty impose ‍​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌​‌​​​​​​​​​‌​​​​‌​​​‍if it the death 1756, 1778, that a convicts”) (White, would ”[w]here 95 L.Ed.2d J., concurring). to our criminal fundamental is discretion that intends possibility penalty of a death sentence under to seek the death his penalty scheme. On the case. the Illinois death

contrary, particular the fact that a defen- argument that he Petitioner’s received an and the eligible dant is for a death sentence primarily premised unfair trial is on his may choose to seek a fact that the State pursue insanity decision to defense and in that defendant’s case are death sentence the nature of the evidence which came into attorneys early to defense as made known Spe- the trial as a result of that decision. Moreover, filing of the indictment. as cifically, Silagy argues that if he had possibil- defense counsel is reminded of this certainty known to a that the intend- State through dire.7 In ity up the time of voir penalty case, ed to seek the death his he light of the existence of this “constructive may foregone insanity have defense at notice”, not an the issue is whether abso- doing, presenting trial in so avoided lack of notice violates the sixth amend- lute inflammatory certain evidence nec- guarantee ment’s of effective assistance of essary argu- for that defense. Petitioner's Rather, we must determine to counsel. ment, however, comport fails to with reali- guaran- what extent the sixth amendment’s ty. Although dispositive of our deci- of counsel man- tee of effective assistance today, initially sion we note that the cir- counsel know to a cer- dates that defense surrounding cumstances Petitioner's crime tainty prior to trial that the State intends practical him lеft with no choice but to given pursue penalty the death ease. plead insanity. The record shows that Peti- discussion, this latter In our we refer to voluntarily tioner confessed to the murder pretrial “certain type knowledge as shortly of both victims after the commis- knowledge.” Thus, sion of the crimes. defense counsel’s might foregone that he have knowledge re- pretrial is not Certain insanity pretrial defense had he had certain protect sixth quired to a defendant’s knowledge pursue that the State would rights. This conclusion is not penalty is merit. More fun- without upon application of premised an insensitive argument, damental how- amorphous principles surround- the rather ever, damaging is the claim that evidence assistance ing what constitutes “effective during presented was trial which would Rather, note, did the of counsel.” we kept jury’s liked to have from the have Cronic, during sentencing phase. consideration guar- that the sixth amendment’s however, argument, fails to Silagy’s take assistance of counsel is antee of effective cognizance of the fact that this evidence sake, rather for not valued for its own but during have introduced the sen- would been ability receive a an accused individual’s tencing phase regardless of whether it Newsome, fair trial. See Hammonds Thus, during the trial itself.8 Pe- admitted Cir.1987). (11th do F.2d We pretrial knowledge lack of certain titioner’s an un- that Petitioner received not believe prejudice presentation him in his did not Silagy’s agree Nor do with fair trial. we defense at trial. only under that the circumstance assertion level, encompassing a more hes- death-eligible defendant can re- On itate to conclude that the of a a fair trial is when he knows to a assurance ceive eligible trial for certainty from the outset the State fair all death defendants 9-l(e) penalty § in Illinois will 8. Under of the Illinois death 7. The indictment for murder statute, any direct a defense counsel’s attention 9-1 information relevant to non-statu- contаins both the Illinois Criminal Code which any mitigating tory aggravating factors and the elements of the offense of murder (c) may factors be intro- in subsection statutory provisions governing death regardless duced the State or the defendant addition, proceedings. defense counsel will governing admissibility rules of their under the apprised voir dire fact at trial. admission of evidence eligible the death defendant granted peremptory chal- he will be extra that lenges part process "death-qualify- of the ing” jury. the of the defendant the al given “cer- characteristics accused be that mandates crime in- which trial knowledge” that the circumstances State pretrial tain reasons, reject in case. we Si- penalty his For these provides. the death tends to seek knowledge is not essential the sixth amendment Simply put, such that lagy’s amendment. pre- of the sixth purposes “certain for the in all instances that mandates given is type of notice Regardless of what to the ac- knowledge” be afforded trial intends to seek the state accused that an cused. case, re- his the fact penalty death (i.e., amendment bind- fourteenth ultimate that the State’s mains claim, forego death pursue or his sixth amendment ing) argument, to like decision trial. made until after the is not of the Illinois statute penalty on the failure focuses prosecutor in which in those states pretrial Even notice that a defendant grant to pretrial pleadings indicate required to penalty is death intends to seek the the State death to seek the state intends claim, that Silagy’s aspect of case. This present- the evidence nature of penalty, the however, failure consti that asserts that prosecutor may convince ed at trial pro due deprivation procedural tutes a penalty would the death imposition of pro does the Illinois statute cess. In that in that case. Under appropriate not be death-eligible defen notice to a vide aсtual circumstance, prosecutor must such to seek the that the State intends dant for request his earlier able to withdraw be thereafter, mandates penalty death penalty. Under death imposition of the sentencing hearing be con separate that a scenario, petitioner would a factual that of such a propriety to determine ducted a sixth amendment to raise then be able deprivation, we conclude that constitutional that if he had arguing known claim pro for all the provides statute Illinois pursue the going to the state was fourteenth due under cess which case, may have he penalty in his death amendment. Or, strategy? to trial opted for a different authority’s decision The knowl- pretrial differently, if “certain put it the Illi- impose a sentence under death under constitutionally mandated edge” is notice to the clearly requires nois statute amendment, prosecu- could a how the sixth in a different con- As was noted accused. will the State tor who has indicated Central the Court Mullane text particular in a penalty pursue the death Co., Bank & Trust Hanover request subsequently withdraw case (1950), a 652, 657, 94 L.Ed. creating appealable automatic an without process of due requirement “fundamental Under amendment? under the sixth issue accorded is to be any proceeding which do proposes, we rule which Petitioner calculated, reasonably un- finality is notice could. not believe circumstances, apprise inter- der all creating this untenable In addition to action pendency of the parties ested prosecutors constitutional dilemma present opportunity to them an and afford rule unwar- cases, such a find capital omitted); see (citations objections.” their re- only serve to it would ranted in that Eldridge, also Mathews informed manner strict the otherwise (1976) 893, 902, the Illinois stat- under prosecutor pro- requirement of due (the fundamental analyze the evidence permitted ute is to be heard at а opportunity cess is deciding at trial whether before meaningful time and in a man- meaningful pursue the death appropriate to ner). presented by Petition- question Were we particular case. penalty in a claim is wheth- er’s fourteenth pretrial mandating “certain adopt rule process due mandates that procedural er required prosecutors would be knowledge”, given pretrial of a notice the accused be issue way commit one or another in a intent to seek penalty death State’s pursue of whether that it do not particular case. We believe insight into individu- without the added of the statutorily-mandated does.9 elusion sen- tencing hearing. sentencing hearing The that, recognized The Court has “ by statute, mandated the Illinois we con- process is flexible and calls for ‘[D]ue clude, provides procedure for all the which procedural protections particu as the such ” is due under the fourteenth amendment. Mathews, lar situation demands.’ at (quoting Arm statute, Under the Illinois if the State Manzo, strong 545, 552, pursue penalty par- wishes to a death in a 1187, 1191, (1965)). In deter request separate ticular case it must a sen- mining process due particular what a situa tencing hearing which will be conducted demand, may tion the Court has indicated jury either before the that determined the (1) that three factors must be considered: guilt, defendant’s a separately impanelled private by interest that be affected will jury, 9-l(d). or the court. This sentenc- § action; (2) official the risk of erroneous ing hearing purpose is conducted for the deprivation through of such interest permitting sentencing authority to de- procedures value, probable used and the if any termine the aggravating existence of (3) any, safeguards; of additional mitigating relating or circumstances to the government’s interest. U.S. at Id. individual weigh defendant or crime and to Obviously, private 96 S.Ct. at 903. determining those factors in whether the claim, interest at stake under Petitioner’s question defendant in should rеceive the any death-eligible and that of other defen 9-l(c) (g). sentence of death. In- §§ dant, greatest magnitude. is of the any formation to non-statutory ag- relevant light procedural of the notice and safe gravating any mitigating factors or factors guards provided are under the Illi which (c) present- subsection statute, however, nois we do believe by ed State or defendant at the any deprivation of erroneous risk sentencing hearing, regardless any evi- might adoption exist mandates the which dentiary might obstacles which obstruct proposed procedural additional admission of that information at trial. safeguard. Nor do we believe that 9-l(e). Finally, pro- the Illinois statute procedural imposition of such an additional any vides for automatic review of convic- al safeguard would serve to enhance the by and sentence of death the Illinois tion ready ample opportunity a death-eli sum, Supreme Court. the defendant is given respond gible defendant notified, post-conviction, albeit penalty to seek the death State’s decision penalty to seek the death State intends statutorily-mandated death sentenc via the Thereafter, procedur- a series of case. ing hearing. safeguards ensure that the defendant is al guided The State action which must be meaningful respond given opportunity process by procedural due is the ultimate request imposition for the to the State’s (or impose judge) decision penalty. the death Based on notice process pur- For due death. afforded, opportunity respond which is poses, distinguish this decision from we reject Petitioner’s claim that the Illinois prosecutor made to seek or process statute violates the due concerns of that, penalty hearing in forego the death the fourteenth amendment. judge unlike the decision of the or death, prosecutor's impose a sentence of Presumption 3. Rebuttable in Favor of the death in а decision to seek Penalty Death depri- particular case does not constitute life, yet finding liberty property. As another basis vation of or The face, occurs, all, only through if Illinois statute on its deprivation unconstitutional impact judge argues the action of the at the con- Petitioner argument presented on behalf of Petition- decisions the course of the trial necessar- provide er curiae that failure to ily amicus falls within Petitioner’s earlier sixth amend- ability pretrial impacts notice of death-eli- ment and our resolution of that issue. effectively strategical gible defendant make 998 bears 9-l(g), prosecution the Under to create a is § Illinois statute 9-l(g) of the bal persuasion the initial burden of the favor presumption

mandatory rebuttable sentencing proceeding. the ancing stage of impermissibly which penalty death stated Supreme Court capi- Illinois As the persuasion of the burden shifts —Bean, Ill.2d penal- People the death of that case recent to show tal defendant — 65062), 18, 1990, “the State his case. Section No. (April inappropriate ty is seeking the death spells movant, out for the party the statute 9-l(g) of the is the will authority primary the results which burden it sentencing and so bears the penalty, that, struck be- on the balance the statute depending jury as persuading obtain of the mitigating and aggravating suf mitigating the factors states, are no tween there during the presented are im factors the sentencer preclude to ficient sentencing hearing. pro- It course for which the of the death posing sentence — part: pertinent —, vides Ill.2d at eligible.” is defendant Supreme unanimously The Illinois Court slip op. that at 52. jury If determines the sentencing the say sufficient that because mitigating factors to no went on are there balancing of imposition process of the death “a the is preclude to determination facts, im the it is sentence, sentence intangibles, proving the court shall of not having a death. speаk to of defendants to proper defendant has as movant the State After ‘burden.’ that unanimously finds the Unless jury the death persuade to the attempted mitigating factors sufficient are no there imposed, a defendant should be the sentence imposition of death the preclude jury from the attempt dissuade the de- shall sentence the court sentence attempts the defendant so. Whether imprisonment.... doing to a term fendant he decides jury, the whether to dissuade place not statutory provision does This him; law ‘burden,’ up the is up this take persuasion burden an unconstitutional up.” Id. require him to take not does hearing to sentencing in a defendant Illinois Thus, agree the with we of the death inappropriateness prove the attempts to that a defendant where Rather, this case. in his or her is penalty jury that the death the persuade the way guides in a language constitutional case, per “a burden inappropriate in determining under (or what judge) the placed is defendant suasion penalty should be death circumstances — statute_” —, Ill.2d at sentencing Court stated Woodson imposed. As the agree However, also op. at 51. slip Carolina, 96 v. North Supreme Court the Illinois with (1976), a 49 L.Ed.2d S.Ct. persuasion imposition of such burden does penalty the death imposition of State’s constitutional because defendant “is on a guarantees of comport with hearing prosecution point in the sentencing unless eighth amendment a reasonable already proven beyond has and character “the authority considers statutory factor aggravating doubt and offender of the individual record eligible making defendant for exists of- particular circumstances omitted], and penalty death [citation Illinois mandate statute’s ...” The fense. aggravating miti weighing jury is now any miti- (or judge) consider State by both the gating factors re- circumstances gating aggravating Su Id. As the Illinois and defendant.” defendant garding the individual capital noted, this kind preme Court to ensure these serves рarticular crime specifies sentencing procedure which rights are observed. eighth amendment eligible of murderers who are class simply provides balance 9-l(g), Section for considera provides penalty authority can upon which the unique mitigating factors tion aggravat- mitigating and place the various approved has been and offender offense whether determine ing circumstances Texas, 428 Supreme Court Jurek ap- the death imposition 2950, L.Ed.2d U.S. S.Ct. in a case. particular propriate — also, Arizona, (1976); closely see Walton v. In a related under -, -, 3047, -, eighth amendment, 111 the argues (1990) (“So impact that the long 9-l(g) preclude as a State’s is L.Ed.2d 511 § the sentencer determining, from allocating proof the based on method of burdens the individual characteristics of the defen prove lessen the burden to does not State’s dant unique and the circumstances of the every charged, the offense or in element of crime, whether death is appropriate the prove aggra the existence of this case to penalty in Specifically, his case. circumstances, vating a defendant’s consti argues 9-l(g) that denies the sentencer § rights not by placing tutional are violated the impose choice not to the death penalty proving mitigating on him the burden in certain circumstances. sufficiently circumstances substantial leniency”). call for Arguments substantially similar to this aspect of challenge Petitioner’s to the Illi statutory A scheme which calls for a nois statute recently were addressed and particular body, sentencing such as the au- rejected by Supreme the in Blystone Court thority 9-l(g), weigh under various § Pennsylvania, —, v. guide body factors must that as to the (1990) Boyde results which follow from a determination California, —, U.S. outweighs that one set of factors the other. (1990). Bly L.Ed.2d 316 At issue in guidance If given, weigh- no such were the constitutionality stone was the ing process itself would be rendered inef- 9711c(l)(iv) Pennsylvania § arriving fective as a means of at similar penalty рertinent part, statute. In example, results in similar situations. For provided, section verdict must be a “[t]he jury weigh if a were asked various miti- jury sentence of death if the unanimously gating aggravating circumstances in a aggravating finds at least one circum case, particular defendant’s not but were mitigating stance ... and no circumstance given any guidance as to the sentence jury or if unanimously finds one or imposed upon which must be based aggravating more circumstances which out they compet- balance strike between those weigh any mitigating Bly- circumstances.” considerations, ing there would be no argued provision stone this violated preventing jury imposing means of from eighth guarantee amendment’s of indi a death sentence even in those situations in vidualized in that it mandated mitigating which the circumstances out- death sentence in certain circumstances weighed aggravating circumstances. precluded doing, impermissibly so Certainly, statutory jury such a scheme would evaluating weight from to be eighth guar- aggravating run afoul of the amendment’s afforded that circumstance. jury The California instruction at issue in antee that the death not be im- pertinent part, “If Boyde provided, you posed “arbitrary capricious” in an or man- aggravating conclude that the circumstanc By providing ner. for a certain result circumstances, outweigh mitigating es based on the balance struck you impose shall a sentence of death.” aggravating mitigating between Supreme rejected eighth circumstances, 9-l(g) impose does not § challenges to both of these persuasion on burden of the defendant. statutes. Rather, it serves to ensure that similar results will be achieved in similar circum- Petitioner, challengers Like in each while, time, allowing stances at the same argued these cases that the effect of the to consider individual charac- statutory language was to create manda- particu- teristics of the defendant and the tory presumption in favor of the death larized nature crime. For these precluded reasons, reject Petitioner’s assessing propriety the death sen- 9-l(g) violates either the rejecting or argu- tence each case. this ment, fourteenth amendments. the Court stated: eighth and four it violates argues that imposed automatically is [d]eath pro it fails to in that amendments types of mur- teenth certain conviction upon aggravat assuring that all a determi- a means only after vide imposed It der. upon by the sen relied circumstanc- ing circumstances aggravating nation constitutionally per or mitigating circumstanc- relevant outweigh the tencer are es Pe argument, support of committed crime particular missible. es decision defendant, there Court’s particular raises titioner 862, 103 S.Ct. mitigating Stephens, circumstances. such are no in Zant (1983). and Pen- Lockett under sufficient This is holding omitted). however, misapplies the (footnote challenge, ry upholding the in Zant. the Court —, at 110 S.Ct. at Blystone, Zant, in Court the petitioner’s a sentence Pennsylvania, inAs 1082-83. which the roles between distinguished the only after in Illinois imposed is of death aggravat- “nonstatutory” “statutory” the that authority determines sentencing Georgia under the play ing circumstances outweigh the circumstances aggravating stated: sentencing scheme. particular circumstances mitigating statutory aggravating circumstances defen- particular crime committed necessary function constitutionally reject play Accordingly, we dant. legislative definition: aspect stage of challenge to at eighth amendment persons the class they circumscribe penalty statute. death Illinois But the penalty. eligible for death three chal preceding Along with require does not Constitution Illinois validity facial lenges factors aggravating possible ignore other chal two raised statute, has Petitioner among selecting, in the process by this discussion merit little lenges which ac- class, who will those defendants that argues that Initially, Petitioner court. tо death. tually sentenced be is unconstitu statute penalty Illinois death (footnote omit- 103 S.Ct. at at Id. ‘‘compa for provide that fails tional in to fo- challenge appears ted). Petitioner’s Some state review”. proportionality rative aggravating cir- latter on this class cus statutes, those particularly “nonstatutory” ag- i.e., those place Geor the scheme cumstances — after modeled assist circumstances which gravating determine reviewing court to gia, require making an individu- authority in sentencing dis is a sentence degree whether to some stage” of “selection at the alized decision im been which has to that proportionate respect to sentencing hearing. With Pulley v. cases. other similar posed in expressly factors, statute the Illinois these 37, 44, 104 S.Ct. Hams, 465 U.S. 9-l(c): states recognizing (1984). While 79 L.Ed.2d consider, in- or shall proportionali court shall provide many states that [t]he any aggravat- statutes, the Court to consider struct in their ty review are factors any mitigating is which ing a review such that Pulley concluded 45, 104 the death imposition Id. to the constitutionally relevant mandated. may in- an “addi factors Rather, simply Aggravating it is penalty. at 876. S.Ct. arbitrarily im limited to need not against [the clude but safeguard tional ” forth set statutory aggravating Id. factors] sentences.... posed death added). (b) (emphasis that not believe do we subsection at 879. that is lack Illinois statute the remainder assertions, Thus, contrary to Petitioner’s man as to safeguards so ing procedural stage the selection discretion at jury’s review, proportionality addition of date hearing is focused pro reject Petitioner’s we task at is “relevant” which re constitutionally is review portionality stated: has the Court hand. As quired. will exercise expect that sentencers [w]e way and to own their discretion facial their challenge final aAs long ability. As as their statute, the best validity of the Illinois guided constitutionally Pugh Traugott, in a discretion Drs. concluded in their (citation way omitted), adequate reports and as and testified at trial that Petitioner long wholly decision is not so was not insane at the time of his offense. Constitution, arbitrary Ziporyn, as to psychiatrist, offend the Dr. the third came to opposite and should an cannot conclusion and testified at trial finding. not demand more. as to findings, These how- ever, are not the focus of Petitioner’s due Florida, 939, 951-52, Barclay v. Rather, process argument. Petitioner fo- 3418, 3425, cuses on the lies Pugh told Drs. (1983). In light precedent of this and the Traugott in his examinations and the jury’s extent to which the discretion is extent to which this false information was statute, guided reject under the Illinois importantly, more relied Silagy’s as meritless assertions to the con- upon by impose in their decision to trary. the sentence of death. The false informa- APPLIED ILLI- B. AS ATTACKS ON upon premises tion which Petitioner now NOIS STATUTE this fourteenth amendment claim was arguments Petitioner’s thus far fo- have presented following to the in the man- validity cused on the facial Illinois ner. sixth, penalty statute under pretrial In his interviews with both Drs. eighth, and fourteenth amendments. He Pugh Traugott, Silagy conveyed and mate- challenges constitutionality of the also rially regarding false information the na- applied as it has in his case. statute been ture of his service while in Vietnam. Dr. Pugh’s report written to counsel and the Testimony 1. Admission into of “False provides perhaps pro- court the most Facts” example nounced of Petitioner’s falsifica- arguments in Silagy’s The first of Reviewing tions. Petitioner’s account of regard focuses on the admission at trial of experience, Pugh his Vietnam Dr. wrote: what Petitioner refers to as “false facts” He served a total of 19 months of combat regarding duty his tour of in Vietnam. Un- duty in Vietnam. combat ...] [ guise der the fourteenth Vietnam, exposed great he was to deal claim an amend- process due many of ene- of violence. He killed claim, punishment ment cruel and unusual my, up. both at a distance and close He argues reliability of his says that on occasions he killed several by jury’s was undermined ex- knives, by cutting people with sometimes regarding posure testimony to certain his says cap- their heads off. He he was later turned out activities Vietnam which by enemy three times and was tured proceeding to false. Before to address subjected says He that he to torture. claim, necessary merits of this it is to interrogation by subjected was also to exactly lay a factual foundation as to what escaped captivity our side when he more im- this information consisted intelligence our concerned because was came to be that this infor- portantly, how it might given that he information to have put jury. mation was before enemy. says partici- he also He enemy for the pated torturing result of Petitioner’s stated intent

As a trial, insanity purpose extracting information from present to defense says partici- separate psychiatrists psy- captives. conducted their He three pated MyLai examinations of Petitioner and massacre chiatric [sic] Calley shortly reports to the court as to talked with Lieutenant be- presented written operation.10 findings. psychiatrists, fore that their Two these report only following Ziporyn’s not make makes references to Viet- Dr. written does nam: any relayed to Vietnam as reference account of Traugott’s report proceeded explain Petitioner. Dr. written He then that he had many people killed while in the armed forces talking Now, Q turning specifically Dr. report nor that of Pugh’s Dr. Neither He served Nam. about the unit Viet into evi- however, were admitted Traugott, in combat? months trial, psychiatrists Rather, these dence. A Yes. con- their conclusions as to simply testified Fahey: at this time. object I sanity. In that Petition- would Silagy’s cerning Mr. neces- information Answer to this challenge Court: Overruled. er’s The it was to ‍​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌​‌​​​​​​​​​‌​​​​‌​​​‍which stand. Proceed. the extent sarily limited focus our jury, we will him of Q Now, your with discussion presented to Nam, was duty issue. that tour Viet on that attention you in- anything significant that there phase guilt/innocence During the than the sit- terpreted from that other the stand trial, was called each doctor transferring telling us about uation defense, Dr. testify. witness As sig- anything unit? Is there from the Petitioner’s no reference Ziporyn made you in that? saw nificant in Vietnam. experiences of his accounts exposure to vio- I felt that his A Yes. Traugott, Pugh testimony of Drs. it, Nam, I was reported lence Viet subject. however, briefly touch did and severe. unusually protracted Dr. Trau- prosecution, for the As a witness more than not serve people Most did ac- Petitioner’s testimony regarding gott’s told me he And he year in Viet Nam. very experience was Vietnam counts tor- times and was captured three to which extent limited.11 The interrogation in the course tured jury on were fabrications participated that he enemy, cross-examination, how- defense counsel’s cap- enemy who was torturing the counsel ever, limited. Defense so was not interrogated by intel- One time tured. how Peti- Traugott Dr. specifically asked they were because ligence on our side en- had military alleged experience tioner’s enemy things had told the afraid he Traugott re- diagnosis. Dr. into his tered a number He had killed under torture. sponded: distance, enemy, sometimes at of history of There’s ways. In several killed up He had close. sometimes service. he’s in the while alcohol abuse knives; by cut- some killed them with history drug of abuse.... [] There’s a off. And ... ting their heads reac- possible made to another reference lost) testimony is (Intervening I ... in the Service. psychosis [ ] tive lot an awful Q like he had ... sounded actions, man’s looking this think peo- most exposure to violence women, that kill he able two how was thought that you And ple don’t have. of our coun- in the service trained was in this significant factor was a have a reac- people, and would try to kill makeup? psychological peo- being around tion, pattern some Yes, Somebody has been I A did. who killed. ple who were may of that sort exposed to violеnce Dr. testimony it, trial it to whereas regard quite callous With become alleged who to Petitioner’s occur to someone might never Pugh, all references the result or been were a murder never has seen Vietnam acts of violence It is certain- examination. murder. threatened with cross counsel’s of defense to some- something occur pros- ly that would objection of Indeed, over only exposed repeatedly body had been take who following discourse did the ecutor it, they are under duress. if place: stated, only Traugott military, "The Dr. spoke openly about his He in Vietnam.... drug verbal is a openly thing his about that is there about I know and also alcoholism psychiatrist in Vietnam. Silagy report a soldier stationed that another of Mr. abuse while psychosis. have been reactive said there had the fact that 11. He testified any documents or other It is unverified "concerning of his mili- some talked with him this, psy- report his alone records. That’s family histo- his tary experiences and some of interpretation." chiatrist’s history psychosis alleged Regarding ry.” an testimony regarding constituted the any aspect This erence made to of Petitioner’s presented at trial. alleged experiences Vietnam Rather, in Vietnam. prosecution simply argued: closing argument, prosecution’s reference to Vietnam limited. The was Silagy proved Mr. throughout has stated, “Vietnam, prosecution don’t man; lifetime that he ... is a violent much, know that but we know he had proved through he has his convictions Again, however, amnesia.” defense coun- through testimony that he con- great lengths sel went discuss tinues to be a violent man.... subject. argued: Defense counsel indicate, only one, The facts ... that Mr. Silagy’s You’ve heard about Mr. tour of Silagy man; incredibly is an violent duty age eighteen. in Vietnam at the two, very, very temper. that he has a bad You’ve heard of violence associated with That’s all the evidence shows. That is duties, that —the combat that he had and the evidеnce Traugott Dr. and Dr. experiences length of that tour who, Pugh, diagnose both—one didn’t duty. Pugh I believe was Dr. who anything Silagy but alcoholism Mr. has a yesterday great testified ex- about problem with. The other one—neither violence, posure to about 19 months that diagnosed within that realm him as hav- he served in combat. That he related ing a mental disease or defect. killing people up, from close from far this, Beyond the nature of the away.... closing portions of the sentenc- individuals, doctors Both of the both ing hearing Petitioner, only consisted Traugott Pugh testified about point se, who at this proceeding pro periods they as reactive of what termed asking allay any feelings psychosis, psychosis reactive which took sympathy they may have and sentence him and, second, place first Vietnam to death. prison.... years allowing Only after all of this testi- Pugh Traugott both Dr. and Dr. talked mony to come at trial as an accurate experience. abot his Viet Nam And [sic] experiences in reflection of his Vietnam did Pugh protracted I think Dr. said how Petitioner reveal that his stories Vi- about Silagy severe the violence that Charles Indeed, etnam were not fact true. Peti- exposed Pugh to And Dr. was. also

was tioner did not disclose the actual nature of conditioning gave testified as to how that duty in his tour of Vietnam until all of his nonchalance, apparently him a lesser remedies had been exhausted and he state violence, reluctance towards how this petitioned had the district court for habeas conditioning through Viet Nam had add- Yet, corpus precisely upon review.12 it is ed to his mental state. exposure jury’s the to his own false state- Thus, to the extent Petitioner’s own fabri- ments that Petitioner his fourteenth bases experiences cated account of was re- his Although apparent it amendment claim. is during guilt/in- ferred to the course of the presented that false information was trial, phase primarily nocence of the it was impose decision it to the whose was doing. the result of defense counsel’s own death, unique sentence of under the cir- request prosecution, At the all of of this case cannot conclude cumstances previously the evidence which had been that Petitioner has suffered a violation of guilt/innocence phase into the admitted process rights. his due sentencing hearing. was admitted into the point during thought the sen- This is an issue the to be At no the course of State however, tencing hearing, express agree ref- do not address was waived. We will During evidentiary hearing enemy, the course of an tured the and did not cut off their heads. 12. court, testified actuality, before the district Petitioner that he In Petitioner testified that was present MyLai he was not at the Massacre and repairman, track vehicle and util- construction addition, Calley. that he did not know Lt. In stationed in ities worker and a mail clerk while engaged Petitioner stated that he had never the Vietnam. combat, enemy in hand-to-hand had not tor- testimony the Vietnam however, of merits, Peti- the introduction the merits. On the exposure hearing. The sentencing into his Peti- must fail. process claim due tioner’s was complains now holding of Petitioner the which on this claim about premises tioner Burke, own fabrica- of his the result in Townsend v. nothing but Supreme Court the Indeed, experiences. 92 L.Ed. his Vietnam tions of came which Townsend, asked information Court was the the (1948). to the extent In who, references prisoner had explicit of at trial sentence into evidence to reverse the counsel, atrocity, it had been acts fabricated Silagy’s benefit to without con- assumptions cross own counsel’s basis his on the result of sentenced was the ma- were psychiatrists. which record cerning his criminal State’s examination at Id. terially untrue. to Vietnam Any references required process concluding that due of these witness- In examination State’s direct reversed, nondescript. Fi- the sentence very limited es was pro- designed stаted, careless “it to motion to the State’s response nally, in so a foundation of sentence nouncement hearing all sentencing into admit false, materially extensively and the Petitioner trial, presented evidence correct to opportunity no had prisoner he under- whether expressly asked was pro- would which counsel services an admis- implications such stood the lacking vide, proceedings renders asked was Petitioner particular, sion. added). As (emphasis Id. process.” in due the admission understood he whether Court’s language, this from is evident necessarily include testimony would this on situations focused process concern due Peti- psychiatrists. testimony of the an ade- not have did prisoner in which understand. did responded tioner the false respond to opportunity quate efforts sum, own it Petitioner’s was the information nature infor- false which led the facts disguise prompted concern same jury. This own counsel. being elicited mation imposed to vacate court op- adequate Moreover, had an Lane, F.2d in Lewis petitioner na- inaccurate respond to the portunity denied, Cir.1987), cert. (7th impor- more information ture of (1988). In 83, 102 L.Ed.2d 829, 109 S.Ct. being presented prevent tantly, erroneously repre- Lewis, prosecution sentencing phase of during the counsel, and to to defense sented facts, there these on all of trial. Based pe- hearing, during the process. of due deprivation no convicted been previously had titioner Certified chal felony convictions. eighth amendment prior four by the testimony obtained later this were of which admission lenge to the records defense a hearing presents concealed yet sentencing prosecution, during the had actual- petitioner counsel, considera revealed this court’s issue for different felony prior only two this of convicted ly i.e., the admission been whether tion — na- inaccurate the reliability Based the the testimony convictions. undermined inability and the information for of this a remand ture death such respond to adequately petitioner the Su necessary. the As resentencing is context same, determined admonished, this court funda has preme “[t]he “effective assistance underlying sixth humanity respect mental im- the sentence claim that of counsel” prohibition against amendment’s eighth the Id. reversed. must be posed gives rise to punishment unusual cruel and in the determi reliability ‘need for special un- which process concerns The due appropriate punish is the death nation that in decision Supreme Court’s the derlied Johnson case.” any capital ment’ in deci and, indirectly, this court’s Townsend 578, 584, 108 S.Ct. Mississippi, 486 U.S. the present under are not in Lewis sion (1988) (quoting 1986, 575 1981, 100 L.Ed.2d Specifi today. to the court presented facts 280, Carolina, v. North that Woodson assertion reject Petitioner’s cally, we 2978, 2991-92, L.Ed.2d S.Ct. by implicated rights were process due his (1976) (White, J., concurring)). In dealing penalty. John You are with the death very That’s what I want and son, presented with an issue would much the Court was appreciate everyone you it if could substantially to that which we must similar bring that verdict you. back. Thank Although the Court deter today. address resentencing remand for Moreover, mined that a although all of the evidence preserve integrity presented of the necessary to at trial was admitted into the guarantees phase proceedings, of the Peti- eighth under the amendment’s tioner’s “Vietnam atrocities” not ex- review, were princi for its presented facts pressly by prosecution raised as an decision, underlying the Court’s ples com aggravating upon circumstance which pre the nature of Petitioner’s bined with impose could rest its decision to during sentencing hearing, sentation sentence. unique Based on this factual us that such a remand is not nec convince circumstance, reject we Petitioner’s asser- in case. essary this jury’s impose tion that the decision in The facts to the Court John- sentence of death must under be vacated being as follows. After convict- son were amendment. officer, police of the murder of a ed thought, As a final Petitioner ar by jury petitioner was sentenced to death gues, although explication, without aggra- on its determination that the based psychiatric testimony Pugh of Drs. surrounding peti- vating circumstances Traugott was obtained in violation of Es outweighed any miti- tioner and his crime Smith, telle v. aggra- gating circumstances. One of (1981). regard 68 L.Ed.2d 359 With to this vating circumstances which the found claim, undisputed it is that Petitioner was exist, upon prosecution prior psychiatric not advised to the exami extensively arguments relied in its favor psychia nations that his statements to the imposition dur- against him trists could later be used dur sentencing hearing, ing prior was a ing the course of the trial. is it Nor dis felony conviction from the State of New however, puted, that Petitioner’s mental Subsequent petitioner’s York. sen- put status had been in issue at the time of tencing hearing jury’s imposition of and the psychiatric these examinations as a result the death sentence based on this and other insanity of his assertion of the defense. To circumstances, prior aggravating this felo- the extent Petitioner’s regard challenges testimony the use of this ny was reversed the New conviction during guilt/innocence phase of his tri Appeals. light of these York Court right recog al under the fifth amendment facts, Court concluded Smith, reject as mer nized his claim petitioner’s sentence could not stand. subsequent under the Court’s deci itless not confronted a factual sce- We are Kentucky, sion Buchanan presents type nario that “unreliabili- (1987). ty sentencing” prompted the Court Buchanan, the Court held that to vacate the sentence Pro- Johnson. use of information obtained State’s sentencing hearing, ceeding 'pro se limited psychiatric examination for the right present Petitioner waived his to miti- insanity purpose rebutting of a defendant’s gating expressly and the evidence asked implicate the fifth amend defense does not jury impose the death sentence. He to 423-24, To ment. at 107 S.Ct. at 2918. Id. stated: psychiatric testimony was the extent this I penalty; I do want the death and will sentencing phase the admitted into the of go any lengths upon to to it served have trial, expressly any Petitioner has waived through my me. I took lives own two response In to objection to that admission. foolishness, nobody not else’s fault. motion to introduce all of the the State’s paid willing Mine. I I am sentencing hearing, twice before. the trial evidence into now, pay price by the and no hesi- Petitioner was asked the court whether of the trial tation. ... he realized that the introduction 1006 statute, pe- the Pennsylvania death the necessarily include would testimony the court’s argued that Blystone titioner stated testimony. Petitioner

psychiatric 9711(e) of the under instructions objec- raised no understand that he did the precluded “impermissibly the statute no fifth amend- Accordingly, find we tion. degrees of lesser of consideration jury’s introduc- from the to result violation ment 495 disturbance, impairment, or duress.” testimony.13 of this tion 1084. Section —, at 110 S.Ct. U.S. provid- Pennsylvania statute 9711(e) the Re Jury Instructions Propriety 2. factors, any mitigating list of ed for a Mitigation in- could judge the of which combination next ar Petitioner’s The focus deciding to consider the struct which following instruction the gument is sentence. impose the death whether during aggrava given to was instructed case, judge trial Blystone’s phase of tion/mitigation consider “whether they could jury that hearing: ‘extreme’ by an affected petitioner was that: include Mitigating factors disturbance, whether emotional or mental while committed One, was the murder ‘substantially’ impaired from was petitioner the influence under the Defendant conduct, peti- or whether appreciating his distur- or emotional mental extreme As ‘extreme’ duress.” under tioner acted as to constitute although not such bance instruction, the court catch-all an additional Two, any other prosecution; a defense entitled jury that it was instructed provide rea- or circumstances facts con- matter mitigating “any other consider most than imposing less sons for of the de- or record cerning the character sentence. severe of his of- fendant, the circumstances of this the effect argues that Petitioner —, 1084. 110 S.Ct. at Id. at fense.” prosecution’s instruction, together with fully that the instruction Court determined subject, towas on this closing statements of Lockett requirements with the complied jury’s con unconstitutionally foreclose 57 Ohio, 438 U.S. v. short “ex state a mental (1978) Penry Lynaugh, sideration v. 973 L.Ed.2d disturbance” L.Ed.2d —, or emotional treme mental S.Ct. mitigating aas on might argument have served rejected which imposition of precedent counseling against Based on this ground. factor Id. an issue As with earlier penalty. similarity of the instructions and the Petitioner, resolution of conclude today, our the court raised before issue mer- Court’s without guided issue is Pennsylva Blystone it.14 recent decisions 1078, 108 —, 110 S.Ct. nia, Right to Proceed Petitioner’s Faretta 3. (1990) Boyde v. L.Ed.2d Califor Pro Se 1190, 108 —, nia, (1990). the sen- Prior commencement hearing, Petitioner indicated tencing con- challenge to the portion of As a during the pro se proceed wished sentence under stitutionality of his Petition- court had denied 14. After the district Smith, sixth addressed the also conviction, filed a use as to his implications of the State’s er’s writ Rules of 60(b) a court-ordered under Federal obtained motion Rule information which defense about the district psychiatric examination for relief from Procedure Civil Although Peti- based, impact not been informed. part, had counsel judgment court’s developed a sixth amendment Penry tioner has Supreme Court’s decision that, Smith, as in Buchan- we note claim under argu- particular supra, on this Lynaugh, had request- expressly an, supra, Petitioner’s counsel argument in rejection Petitioner’s Our ment. purposes psychiatric examination ed necessarily dismissal of includes regard this insanity such defense. Under supporting his 60(b) aspect his Rule motion. this circumstances, vio- sixth amendment we find no 424-25, Buchanan, S.Ct. at lation. at 2918-19. sentencing phase provide merely of the trial. After exten- amendment does not that a advising rights accused; sively Petitioner his and defense shall be made for the it possible implications grants of his choice to to personally right the accused own, proceed on his the court ruled: to make his defense.” 422 U.S. at Moreover, stated, S.Ct. at 2533. the Court responsible person the Defendant is a language spirit and of the sixth “[t]he disability under no mental and who is counsel, contemplate amendment that like knowingly, intelligently, is who guaranteed by the other defense tools electing proceed in understanding^, to amendment, willing shall be an aid to the suggested. his defense as he has organ defendant —not an of the State inter- Defendant court further finds that the posed unwilling between an defendant and charges the nature of the understands right personally.” to defend himself convicted, he’s the seri- for which been Petitioner, Id. 95 S.Ct. at 2533. penalties in possible ousness of the however, attempts distinguish right to case, freely voluntarily un- and has proceed pro to recognized se which was in attorney.... dertaken to act as his own grounds. Faretta on a number of We find Proceeding on his own the sentenc- arguments lacking each of his in merit. trial, chose ing phase of the Petitioner to fact, mitigation in in offer no evidence Initially, argues Petitioner return with a sentence of asked the right recognized in applica Faretta is not upon It this factual foundation death. is sentencing ble within the context aof hear challenge raises his next which Petitioner ing capital premises in a case. Petitioner constitutionality of his sentence. He argument simple this fact that Far argues imposition of the death death-eligible etta did not involve a defen these circumstances consti- penalty under Relying dant. on this fact and the Court’s amendment’s tutes violation i.e., recognition subsequent in cases— against pun- cruel and unusual guarantee Gregg Georgia progeny and its —that disagree. ishment. We there must be an individualized case, capital determination in each Petition argument support in Petitioner’s argues right er the Faretta cannot argument The first proposition is twofold. apply capital sentencing phase in of a reconcile his sixth requires this court to in disagree. The Court Faretta trial. We proceed right pro se under amendment impose any upon a de did not restrictions California, 422 Faretta v. U.S. right the assistance of fendant’s to refuse with S.Ct. right except counsel to state that the must ensuring interest of that death is societal “knowingly intelligently” waived. case in appropriate each at 2541. More Oklahoma, imposed. which it is Ake v. over, principled can think of no reason 68, 83-84, 1087, 1096, 84 deny death-eligible defendant his Far (1985). argues that Petitioner right proceed the assistance etta without no such as his where evidence situations capital If an individual in a of counsel. mitigation presented, is Faretta sentencing hearing proceed pro wishes right of counsel to refuse the assistance se, grants right him the to do Faretta so. yield interest must to the latter described society. that Petitioner mis- We believe next at scope characterizes the of the sixth amend- tempts the sixth right to make right granted ment Faretta. granted contingent upon Faretta Faretta, recognized the con- nature of the defense the Petitioner the Court right present. Specifically, stitutional of a criminal defendant to wishes proceed argues right state-provided refuse counsel and sixth amendment voluntarily representation recognized apply if he which Faretta without does situations, his, intelligently to do so. such elects Conclud- where no evidence ing right implicit presented mitigation during that this in the sixth is the sen amendment, stated, tencing phase. Although the Court sixth is evident “[t]he part death-eligi- Second, argues such a decision on the of a Petitioner that his present mitigating may impact jury's decision not to during evidence ble defendant deci- sentencing phase sion-making process, of his trial so we do not believe that reliability right grants undermined the of his sentence which F'aretta can or guarantees contingent that it cannot stand under the should be on this factor. As the Again, Court stated in Faretta: of the agree. amendment. we dis B1~jstone,supra, As in Petitioner's right personal. [t]he to defend is The jury expressly was instructed the court defendant, ‍​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌​‌​​​​​​​​​‌​​​​‌​​​‍lawyer and not his or the "any that it could consider other facts or State, personal will bear conse- provide circumstances that reasons for im quences of a conviction. It is the defen- posing less than the most severe sentence." dant, therefore, per- who must be free Thus, under the Court's determination in sonally particu- to decide whether in his Blystone requirement "{t]he of indi advantage. lar case counsel is to his capital vidualized cases is sat although And conduct his own by allowing isfied to consider all ultimately detriment, defense to his own mitigating evidence", relevant 495 U.S. at

his choice must be honored out of "that -, 110 S.Ct. at 108 L.Ed.2d 255 respect for the individual which is the regard Petitioner's fail. in this must lifeblood of the law." (quoting Id. at 95 S.Ct. at 2540-41 Jury Impeachment Allen, 337, 350-51, Verdict under Illinois v. 606(b) 1057, 1064, (1970) Fed.R.Evid. S.Ct. (Brennan, J., concurring)). During sentencing phase of Si- lagy's trial, juror upon support conclusion, an individual took it As additional for our himself to inform other members of the contrary we note that a result would turn understanding Bly- about his of Illinois Court's recent decision in sentencing procedures. Pennsylvania, supra, In an offer of stone v. on its head. proof court, juror Blystone, petitioner before the district chose not to testified that he told the others that it was present any mitigation evidence Silagy sentencing phase trial, though his belief that would serve no more of his even years they contrary by than five to seven if sentenced he was advised to the his trial opining possible implica- him to life. He also testified to counsel and warned of the jurors that, they judge. the other even were tions of such a decision the trial death, sentence Petitioner to he would nev Nevertheless, the ultimate decision of the executed, spend er be but would more than Court was to affirm the death sentence years prison. seven The district court imposed. implication that was objection sustained the State's to this testi Blystone, then, Court's decision in is that mony under Federal Rule of Evidence forego presentation one can choose to 606(b).15 points repre to these mitigation of trary evidence even over the con- argues sentations and under various consti warnings advice of counsel and the jury's tutional amendments that the sen light fact, the court. of this it would be tencing decision cannot stand and that the strange indeed for this court to conclude proffered district court's exclusion of this forego presentation that a decision to disagree. evidence was error. We mitigation evidence could act as a bar to concluded, right As the district court this dis a defendant's otherwise constitutional simply juror's proceed pro Accordingly, reject cussion was the result of "a Se. say, contrary. erroneous ideas"-that is to this is not Petitioner's assertion to the ing 507,511, proper. People Holmes, People See 69 Ill.2d 15. The districtcourt also referredto 460,462, Silagy, 357,369, 677,681, 14 Ill.Dec. 372N.E.2d 116Ill.2d 107Ill.Dec. (1978)(affidavits testimony 507N.E.2d Supreme in whichtheIllinois to show"the motive, processby Courtheld that the dismissalof this method or whichthe evidentiaryhearing admissible). claimwithoutan Illinoistrial courtin a beforethe reachedits verdict"is not post-convictionproceed- something upon permit which the im- I don’t prison, wanna die in I wanna die peachment jury verdicts under Federal right Danville, here in and I don’t care 606(b). Rule of Evidence As was noted judge who the is. It don’t make me no Ford, this court in United States v. give difference. Just him a thrill so he (7th Cir.1988), 606(b) F.2d 460 Rule is de- get off, can his nut Ibut want the death signed protect judicial process from penalty. attempts jury constant to undermine ver- apparent It is that the method of execution through scrutiny juror’s dicts play did not a role in Petitioner’s decision thoughts poli- and deliberations. With this right to waive his right to counsel or his mind, cy inquire this court “will not into present mitigating Accordingly, evidence. including jury’s process, deliberative attempt what, we will not to determine if statements, discussions, arguments, men- any, rights might constitutional have been votes, reactions, tal and emotional implicated by the state’s decision change the absence of a claim of external influ- the method of execution. added). (emphasis ence.” Id. Peti- juror’s tioner cannot use this statements in C. CHALLENGES TO THE CONVIC- corpus proceeding impeach habeas TION jury’s sentencing determination. Shillcutt challenging addition to the constitu- (7th Gagnon, 827 F.2d 1158-59 tionality of his sentence in pro- the habeas Cir.1987) 606(b) (Applying Rule a 2254 below, ceedings variety Petitioner raised a hearing). Accordingly, Petitioner’s chal- challenges propriety to the of his convic- lenge ground to his sentence based on that order, tion. In its final the district court rejected. rejected challenges these and denied Peti- argu- tioner’s writ. We will address these

5. Mode of Execution ments in turn. Finally, we address that which is creative, perhaps yet per the most least Challenge Jury Fair-Cross-Section arguments suasive of Petitioner’s with re Venire gard constitutionality to the of his sen primary attack which Petitioner rais- argues tence. Petitioner that various propriety es as to the of his conviction rights his constitutional were violated process by jury focuses on the which his rights the waiver of his to counsel where Specifically, venire was selected. Petition- present mitigation and to not “intelli were argues process deprived er that this him of gently” made he was under the because right jury his sixth amendment to a select- belief that he would be electrocuted rather from a ed fair-cross-section of the commu- lethally injected. than As is from evident nity as well as his fourteenth amendment authorities, Petitioner’s statement right process. Although to due Illinois might is what we call the state in the law wаs followed selection “kitchen sink.” He stated: venire, of Petitioner’s we do not be- death, you I want either ... can stand impact irregularity of this lieve fuck, me, up give I don’t me shoot deprive was to Petitioner of either his sixth mom you know. Her and dad can come rights. or fourteenth amendment me, fuck, give I over and stab don’t ¶¶ Contrary to Ill.Rev.Stat. ch. do, they you whatever wanna know. responsible compil- the official They judge jury. can their own ing venire from concerned, already As far as Pm I know petit jury ultimately out, would be chosen ex- I I what I want. want but wanna empted persons service those my birthday. die thirtieth I wan- before die, jury questionnaires who indicated on their early morning na at six o’clock east, they facing seventy years age were high, on the fourteenth March, 1980, Although day give and I don’t a older. this Illinois statute ex- they they hang pressly provides it. If exemption fuck how do wanna for the of cer- flagpole i.e., me from that groups persons over there ... but tain un- individuals — purposes the necessarily be linked to must provi- nois eighteen of age the der —there As requirement. the fair-cross-section seventy years of exempts persons sion which v. Louisi- Taylor in originally identified sixth age or older. of ana, purposes are: those arguments focus amendment fourteenth judg- exemption. (1) that the commonsense to ensure this unwarranted act a community will as ment these under issue primary the over-zealous hedge against group of this exclusion is whether facts prosecutor; mistaken of his deprived of individuals in the (2) public confidence preserve jury selected right to a amendment sixth ensuring system justice criminal community. of from a fair-cross-section in community participates that 357, 99 Missouri, U.S. 439 v. Duren In criminal of our the administration (1979), the Su- 664, L.Ed.2d 579 58 S.Ct. laws; and that, establish in order to held preme Court sharing in (3) the belief that to further the fair-cross-sec- of violation prima a facie a justice is the administration must show: a defendant requirement, tion responsibility. civic phase of excluded alleged to be group (1) that 698; 530-31, in the commu- at Lock- group” 95 S.Ct. a “distinctive at is 419 U.S. 174-75, 1765- 106 at hart, at S.Ct. nity; 476 U.S. group this (2) representation that the 66. juries are from which venires Petition precedent, Relying on reasonable not fair and is selected act of official’s argues the state er per- such number relation age of seven persons over singling out community; sons exclu group whose ty created a distinctive is due to underrepresentation (3) require fair-cross-section sion violated group in exclusion of systematic We dis amendment. the sixth ment of process. jury-selection agree. The district 364, at 99 S.Ct. 668. Id. matter, “age” note As an initial had not met that Petitioner court concluded as by this circuit already rejected has been and, as test of the Duren prong the first group a can define a characteristic of a prima facie case such, had not raised re the fair-cross-section purposes of for agree. We violation. amendment sixth Greer, F.2d 675 Davis v. quirement. denied, U.S. (7th Cir.), a “distinctive 459 141, constitutes cert. Exactly what 146 (1982), concept 310, 289 amorphous 975, 74 L.Ed.2d a rather group” is persons between has burdened held that Supreme Court this court that the a “dis- precise 21 not constitute with a 18 do group” ages of “distinctive the term McCree, purposes of the sixth 476 U.S. for group” v. tinctive Lockhart definition. premised 1758, 1765, L.Ed.2d This conclusion was 90 amendment. 162, 174, 106 S.Ct. recognition part a factor Court’s been Age has not (1986).16 137 Jury Greene v. Comm’n group as in Carter defined previously that has 518, 320, 332, S.Ct. has, 396 U.S. 90 County, how- The Court group.” “distinctive (1970), re- 525, 549 that states 24 L.Ed.2d “distinc- concept of ever, intimated of venire- free to confine selection main purposes amendment for sixth tiveness” claims, equal protection Pe- teenth amendment a "distinctive Precisely constitutes what 16. 2163, 493, Kiff, 33 S.Ct. ters v. 92 is purposes group” sixth for (blacks); (1972) (plurality opinion) Taylor The Court’s decision not clear. 1272, Partida, S.Ct. 97 Louisiana, Castaneda v. 42 L.Ed.2d S.Ct. 95 (1977) (Mexican-Americans), 51 L.Ed.2d such a women constitute holds that of his course proceeded in Rehnquist Justice opinion the Court majority for group. exclusion McCree, Rehnquist discussion to intimate listed Justice Lockhart who, violation groups might constitute groups these also as Mexican-Americans blacks and Lockhart, requirement. women, subject have been the fair-cross-section along with Thus, these at 1766. 476 U.S. at cases.” 476 U.S. “jury-representativeness prior per se “distinctive Although groups constitute the inclu- also S.Ct. at amendment. purposes of the sixth groups” premised groups was on four- sion of these persons meeting “specified to citizens qual- ican citizens from substantially service age ifications of ment_”17 and educational attain- jeopardizes public’s perception of the Although the exclusion be- fairness of the justice system. criminal Is today unique fore the court somewhat exemption such an perceived being any official, that it was an individual state and more unfair outright than the exclusion of statutory provision, respon- not a that was persons ages between the of 18 and 21? exclusion, sible for the this distinction is Finally, recognize while we that the exclu- signifi- not one is of that constitutional sion of jurors this class of implicated the age cance. If the exclusion of a certain concern of the sixth amendment that all group does not violate sixth amendment persons participate continue to in the ad- encompassed concerns when it is in a statu- ministration justice, of this unfortunate tory provision, we decline to find a constitu- by fact itself cannot establish a fair-cross- tional violation when exclusion is sim- section violation. The ultimate concern of ply the result of an individual state actor.18 requirement fair-cross-section is to en- solely We do not rest our conclusion on sure that each criminal defendant be af- precedent, persons this however. That right forded his sixth amendment to an age seventy over the of do not constitute a “impartial jury.” Taylor Louisiana, group” purposes “distinctive of 530, 419 atU.S. 95 S.Ct. at 697-98. We do supported by sixth amendment is further not believe that the persons exclusion of analysis purposes underlying an of the age seventy jeopardized over the that First, requirement. fair-cross-section we right. reject Petitioner’s that assertion ex- Finally, reject we Petitioner’s assertion emption persons age seventy over the expert testimony of Dr. McCona- somehow threatens the extent to which the hay, professor public policy sciences at judgment “commonsense of the communi- University, persons Duke established present ty” impanelled jury. will be age over the seventy constitute a “dis- question generalized percep- We do not group” tinctive for sixth pur- amendment bring unique tion that older Americans do poses. regard, agree In this we with the perspective jury proceedings. Petition- elderly district court that while “the er, however, have has failed to demonstrate that experience much to offer in terms of life perspective adequately rep- this will not be exposure”, they by aged sixty resented those cannot be classified as and over who group” represented were on the venire wheel. Nor a “distinctive for sixth amendment exemption purposes age do we believe the of elder Amer- on the basis of alone.19 provisions by legislature 17. undertaken Illinois selection or court. Id. at statute, (1979), provide exempt- IH.Rev.Stat. ch. ¶ 1010. The actions of the Chief Clerk in persons for the exclusion from service of ing persons age seventy, although over the age law, under the of 18. unwarranted under state do not raise the same constitutional concerns as did the actions points 18. Petitioner to this court's decision in jury supervisor Specifically, in Davis. no Warden, Davis v. Joliet Institute at Correctional purports persons Illinois statute to define over Stateville, (7th Cir.), F.2d cert. age seventy group.” the Moreover, as a "distinctive — denied, U.S. -, 110 S.Ct. 107 L.Ed.2d age we have held that the fact of does support of his assertion not define one as a member aof "distinctive permit an individual actor to tinker with the Greer, group”. supra. See Davis v. provisions legislatively of a enacted statute nec essarily principles undermines the behind the Davis, 19.Petitioner's that the exclusion of requirement. fair-cross-section our jurors prong with the these also violated his fourteenth amend- concern was second of the Duren and, specifically, process rights test the actions of the with the extent to which ment due argues is meritless. Petitioner jury supervisor exempt- had redefined that the Chief Clerk’s actions in "community” appears ing persons automatically exempt the term as it in that who were not Noting pro provisions context. that the sixth amendment under the of the Illinois selec- rights process. vides that a "defendant ... is entitled to a trial tion law violated his tioner, however, to due Peti- impartial jury authority an ... ..., of the state and district cites no relevant previously support Accordingly, which shall have been ascer of such an assertion. law", contention, reject tained this court held that such a as well as the remainder "community” 60(b) redefinition of the term should be of Petitioner’s Rule motion which dealt sup- argument and the Psychiatrists Trial Both Petitioner’s Competence of however, Schwarz, Dr. porting affidavit of challenge to the con As a second of both to account for the testimonies fail conviction,20Petitioner stitutionality of his Traugott expressly Pugh Drs. which his fourteenth denied argues that “accept reality” they did not state process right to due Traugott Dr. tes- Petitioner’s fabrications. “incompe Traugott were Pugh and Drs. as follows: tified at trial and ultimate in their examinations tent” Doctor, conducting Q you are when sanity at the time regarding his diagnoses Doctor, examination, do psychiatric premises this his offense. people say at face you take what the decision in Court’s claim on value? Oklahoma, Ake v. A No. (1985), and the affida 84 L.Ed.2d Then, just be- Q would it be correct states that of one Dr. Schwarz vit sоmething, it not they say is cause testimony of Drs. trial diagnoses and necessarily sign that it is true? professionally Traugott were Pugh and That’s correct. A this Petitioner raised sound.21 Q Silagy, of Mr. your In examination the district court first time with for the proposition hold general did this rejected this ar court The district below. true? per concluding that services gument gathering In data explain. A Let me Traugott Pugh and were by Drs. formed I sift and sort through an interview pro due purposes of federal competent for mind, through my in own and this ultimate conclu agree with this cess. We something are trained to do we find no abuse of dis accordingly, sion field, consistency our to look rejection of in the district court’s cretion they hang together Do statement. testimony. expert Unit Dr. Schwarz’s Cf. conflicting or are there as whole (7th Soto, F.2d v. De ed States parts in there. And to be able Cir.1989). evaluation, one that kind of an make stated, Ake, “when a defen- skeptical the Court has to be somewhat judge the trial demonstrates to the in- everything dant that’s said within the offense is to be it in a sanity at the time of and look at terview context must, trial, general significant very factor at State sense. the defendant access at a minimum assure skepticism. this same Pugh Dr. testified to con- competent psychiatrist who will to a testimony does Pugh’s Dr. trial Although and assist appropriate examination duct an placed on some reliance was indicate that evaluation, presentation preparation arriving at his fabrications Petitioner’s Id. 470 U.S. of the defense.” Pugh’s Dr. written re- diagnosis, ultimate argues that the 1096. Petitioner S.Ct. at experiences that those port simply states Pugh Traugott were diagnoses of Drs. bearing present “may have some they “accepted Moreover, as reali- incompetent Pugh’s in that Dr. written charges.” court, regarding his Petitioner’s statements was the district ty” report, which before experi- alleged The affi- alleged experiences Vietnam. indicates that Petitioner’s Vietnam, they extent did comes to this same of Dr. ences davit Shwarz only one equation, into the were enter conclusion. support of his claim Penry Lynaugh U.S.C. 3006A impact on this with issue, psychiatrists court-appointed without discussion. diagnoses. incompetent trial in their state were challenges propriety of his Petitioner also appointment district was denied This respect to this issue. Our resolu- with sentence tion of this supporting affidavit of Dr. Schwarz court. The regard process to his due claim with claim, however, presented at Petitioner’s propriety necessarily applies to the conviction evidentiary hearing the district court before as well. of his sentence proof. as an offer of sought appointment Dr. 21. Act, the Criminal Justice Schwarz under prior psychiatrist’s together diagnosis. among many came factor We do not hardly estab- diagnosis. This believe this was support his the intent of the Court in on false infor- unyielding reliance lishes the Ake when it held indigent defendants Dr. Schwarz Petitioner and mation which who raise a defense insanity are entitled Thus, premise the factual suggest. wish to psychiatric preparation assistance unsup- claim is underlying Petitioner’s of their Accordingly, reject defense. we very record from which he ported Petitioner’s fourteenth amendment due psychiatrists’ incom- to establish wishes process concerning competence claim petence. psychiatrists at his trial. case, this not the we Even were open up type this reluctant would be II. experts to a battle of the in a

Ake claim reasons, foregoing For all of the Af- Every aspect review. of a “competence” firm the district court’s denial of the writ testimony case which involves the criminal respect with to Petitioner’s conviction and conceivably subject could experts grant the district court’s Reverse ending process. never such a review—a vacating writ sentence of case, noted, court three as the district death. board-certified, experienced, independent psychiatrists appointed to practicing were ON PETITION FOR REHEARING AND psychiatrist the Petitioner. Each examine SUGGESTION FOR REHEARING thorough examination and sub conducted a EN BANC diagnosis to the court. Two mitted his BAUR, Judge, Before and Chief him sane at the time of the found to be CUMMINGS, WOOD, Jr., CUDAHY, Pugh indicated that Petition murders. Dr. POSNER, COFFEY, FLAUM, alcoholism, in er alcoholic suffered EASTERBROOK, RIPPLE, incident, MANION at the time of the and a toxication KANNE, Judges. Circuit history psychosis. past of acute reactive Traugott Dr. concluded that Petitioner suf consideration of the Petition for Re- On disorders, one of three mental fered from Rehearing hearing Suggestion for En all were similar in nature to an of which by Silagy, in this case Charles Banc filed Each, personality disorder. how antisocial of the court vote of the active members ever, concluded that Petitioner substantial majority of the requested, was and a active ly the nature of his actions on understood deny have voted to members of the court night killings and did have the Judge Cudahy rehearing en banc. ability conform his conduct to the re Judge Ripple have dissents from submitted Ziporyn, quirements of the law. Dr. whose rehearing of en banc. the denial challenged appeal, in this diagnosis is not judges original panel All of the insane at the time of found Petitioner to be deny petition for rehear- have voted regard Without to their ulti the offenses. IT ing. Accordingly, IS ORDERED diagnoses, we believe that this meets mate be, rehearing petition the aforesaid requirements set forth in Ake.22 A hereby DENIED. the same is contrary require would conclusion other federal courts to en this court and CUDAHY, Judge, dissenting Circuit gage “psychiatric in a form of medical mal rehearing from denial of en banc. part-and-parcel its practice” review as of respectfully I dissent from the denial of judgments. of state court collateral review rehearing particular concern en banc with result would be a never-end The ultimate prosecutorial appointed post-trial ex for the issue of dis- ing psychiatrists battle purpose discrediting a cretion and for the issues of arbitrariness perts for the sole Ake, psychiatrist personal liking pointed of his out the Court in to select a 22. As competent process requires testify fact that due psychiatrist that a in his favor. 470 U.S. at one who will appointed does not mean that S.Ct. at right indigent defendant has a constitutional plenary easy area and not an This is ably discussed Chief notice and lack might resolve by the entire court reflection ex rel. opinion below. U.S. Judge Baker’s constitutionality the matter in favor F.Supp. 1258-60 Peters, 713 Silagy However, ought to re- the statute. Judge noted (C.D.Ill.1989). The issues for the sake all now both solve doubts consideration. plenary Ripple also merit one hun- for the over defendant and execution already awaiting dred defendants dissenting RIPPLE, Judge, Circuit inevitably cases Those under this statute. rehearing en banc. from denial of should hear this court. We come to will en banc. the matter description Supreme Court’s Illinois mit producing the defendant’s burden —Bean, evidence, People v. igating see 65062, slip op. —, -, No.

Ill.2d 18, 1990), with (April combined

51-52 in mit the evidence

statutory mandate that “preclude” sufficient

igation must be America, semantically death, different quite STATES UNITED substance, approach Plaintiff-Appellee, from the perhaps in Bly Supreme Court by the approved —, 110 Pennsylvania, stone v. Rector, Selby, PAIZ, Douglas Dick Sam (1990).1 An Rector, Barbara Al Cooper, Joe Leann ‍​​‌​‌‌‌​​‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌‌​‌​​​​​​​​​‌​​​​‌​​​‍given the same certainly is not Illinois Rector, Defendants-Appel len, and Tim jury. Pennsylvania as a degree of direction lants. jury, an Illinois Pennsylvania Unlike 89-1304, 89-1282, 89-1285, 89-1264, Nos. told, directly, that at least is not apparently 89-1307, and 89-1315. 89-1308 must out circumstances aggravating mitigating circumstances. any weigh Appeals, States Court United jury, Therefore, an Illinois appears that Circuit. Seventh aggravat where the a situation faced with Argued Feb. is close or mitigating evidence ing and 6, 1990. Decided June guidance the same equipoise, does not have 21, 1990. As Modified June Indeed, even when Pennsylvania jury. as a arguably out mitigation the evidence there is a sub aggravation,

weighs that the word question as to whether

stantial give sufficiently definite

“preclude” arriving meaningful guidance juror permissible decision. constitutionally at a — -, Arizona, U.S. v.

While Walton (1990) ad 111 L.Ed.2d 511 issue, it does proof allocation of

dresses the linkage between squarely the address problem vagueness and the

that allocation Nor does Illinois statute.

presented by the problems those combined

it address gen determination. See

context of a —, 109 Penny Lynaugh,

erally (1989).

S.Ct. (1990). California, Boyde —, 1. See also

Case Details

Case Name: Charles Silagy, Cross-Appellant v. Howard Peters, Iii, Warden, Pontiac Correctional Center, Cross-Appellee

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 10, 1990

Citation: 905 F.2d 986

Docket Number: 89-2129, 89-2212 and 89-3117

Court Abbreviation: 7th Cir.