Jerry Mahaffey v. Thomas Page, Warden

reasons, Royalite we For these find years before that ter- intentionally lied three mination.) shown the Board’s decision was Royalite’s .own not respect With evidence, unsupported by substantial and we failure on Bell’s ALJ relied policies, the decision Enforced. investigation order the background up follow with of similar company’s prior treatment application incidents of false statements on as evidence criminal histories

forms and (of alleged policy tending to show would not have

firing employees all statements) initially but for those false

hired Royalite straightforward as ar-

was not as perhaps importantly most

gued. And knowledge Royalite’s of Lozano’s light Jerry MAHAFFEY, Petitioner-Appellant, timing compa- found past, ALJ compelling ny’s discharge Lozano decision Warden, PAGE, Respondent- Thomas discharge really be- evidence that Appellee. organiz- in the union cause Lozano’s role application ing of his campaign, because No. 97-4137. Vlerah, See Van past. 130 F.3d at or his Appeals, States Court 1264. United Seventh Circuit. obviously all This not a case which Argued May way, in the pointed one but real easily world such cases are rare. record Aug. Decided Royalite supported could a decision have certainty it learned needed misrepresentation about Lozano’s had

precise of crime he committed kind objection hearing,

preparing for and at the action accor-

and that it took immediate policies at that time. One

dance with its was too

might wonder whether the ALJ even account to have credited Lozano’s

credulous did, might if ALJ thoroughly as encourage

have some hidden desire great apparently made ef-

someone who early

forts to turn his life around after some contains no

serious mistakes. But the record theories,

support it is not our for those speculation.

job engage Once have

found, here, and then as we do ALJ a choice between two

the Board made evidence,

fairly conflicting views review evidence standard of re-

substantial the Board’s decision.

quires us to defer to 1312;

Joy Recovery, NLRB v. 134 F.3d Bakery Corp.,

Augusta Cir.1992)

(7th (“[T]he substantial evidence reject not allow us to

standard does fairly conflicting two

Board’s choice between

views.”) (citing v. Stor-Rite Metal NLRB

Prods., Inc., Cir.

1988)).

674 CUMMINGS, FLAUM,

Before ROVNER, Judges. Circuit FLAUM, Judge. Circuit Jerry Mahaffey was convicted an Illi murder, nois in 1985 of two counts of along attempted count one each mur der, invasion, aggravated battery, rape, home robbery, armed burglary, residential crimes, he theft. For these was sentenced to review, death. On direct the Illinois Su preme Court affirmed conviction and sen tence, 388, 366, 128 Ill.2d 132 Ill..Dec. (1989), N.E.2d and the United States petition Supreme Court for denied certio- rari, 1031, 3291, 497 U.S. (1990). Mahaffey’s peti L.Ed.2d 799 state post-conviction similarly tion relief was unsuccessful. See 165 Ill.2d 209 Ill.Dec. N.E.2d U.S. 133 L.Ed.2d 408 (1995). petition He then filed this for federal relief,1 corpus habeas which the district court denied. See United States ex rel. Peters, (N.D.Ill.1997). appeals now the denial of the writ grounds rejected on a number court, district and we affirm.

I. Jerry Mahaffey, along with his brother Reginald, Chicago’s drove North Side on night August burglarize 1983 to clothing store. The brothers plan point, they aborted that and some through open instead chose climb an win- apartment dow and into of Jo Ellen and Pueschels, along Dean Pueschel. The Richard, then-eleven-year their old son (ar- Freedman, M. Gary Alan Prichard asleep at Reginald picked up the time. After gued), Justice, Ltd., Midwest Center for Chi- kitchen, knife the brothers first IL, cago, for Petitioner-Appellant. proceeded entered Richai'd’s bedroom and Ahlstrand, Attorney Deborah L. Office stab him with the knife and hit him over the General, Division, IL, Appeals Civil Chicago, head with a baseball in bat that was (argued), Reginald well, Renee G. picked up Goldfarb Office of bedroom. a bat as Attorney County, Appeals proceeded of Cook Criminal and the brothers next into the Division, IL, bedroom, Chicago, Respondent-Appel- they began Pueschels’ where to hit lee. Dean on head Pueschel with their bats. (AEDPA) petition apply filed his November do not case. See Lindh v. Therefore, provisions Murphy, of the Antiter- 521 U.S. Penalty rorism and Effective Death Act of 1996 L.Ed.2d 481 room, misrepresentation that this violated his where serfs to another was taken Jo Ellen (cid:127) sodomized; point Eighth" and Fourteenth raped rights at some under she was attempt argu- 'draw Jerry Dean Pueschel His third and fourth saw Amendments. self-defense, Jerry hit Dean over so gun in received ineffective as- ments assert both again with his bat. When the head from his trial counsel both sistance bed- into the Puesehels’ brothers went back sentencing hearing arguing a motion they had dis- firearms that room to retrieve suppress his confession. We will relate covered, they begin to move saw Dean arguments facts relevant these additional taken death. Jo Ellen was stabbed him to context of our discussion. car, where she was out to Puesehels’ system; alarm she forced to disarm car’s II. apartment into was then taken back pistol, in the head with the butt beaten Challenge A. Batson beating last her death. This which caused pending While case re- presence, occurred Richard’s review, the Su the Illinois courts on direct Jerry point. gained consciousness Kentucky, preme held in Batson v. Court everything wiped fingerprints down 96-98, Reginald had touched that he discriminatory prosecutor’s use a dead, Leaving the apartment. Richard challenges the of race peremptory of basis ear, taking fled in Puesehels’ brothers equal right to violate a defendant’s could jewelry, equip- guns, and video with them Fourteenth protection under Amend they had stolen. Richard survived ment that of a claim entails a ment. Evaluation Batson grand- was his the attack and discovered 96; three-step process. id. 106 See at S.Ct. in day, dazedly wandering father the next First, must make a 1712. defendant alley parents’ his home.2 near prosecution prima showing facie that the has Ma- from the receiving information After peremptory challenges on the basis exercised brother, Cedric, haffeys’ police both arrested this of race. If defendant satisfies They Jerry to au- Reginald. and confessed threshold, pros then the burden shifts thorities, joint which following trial at justifica ecution to articulate race-neutral testified, Jerry Regi- only Reginald both disputed challenges. tion for the If race- to death.3 nald were convicted and sentenced tendered, explanation court neutral" Jerry Mahaffey’s and sentence conviction whether, in of light then determine post-con- appeal state were affirmed justification, has proffered the defendant sat review, argu- four viction and he now raises purposeful proving dis isfied burden appeal of district court’s denial ments on 1712; 96-98, 106 S.Ct. crimination. See id. First, argues corpus relief. he of habeas Elem, 765, 767, v. Purkett 514 U.S. see also its peremp- prosecution’s that the exercise (1995) 1769, (per 115 S.Ct. tory Four- challenges at trial violated his 288, curiam); Gramley, 96 F.3d McCain v. rights. Batson v. teenth Amendment See Cir.1996), 290 U.S. 1712, 79, Kentucky, 476 U.S. (1997). -, 1320, 137 L.Ed.2d 482 (1986). Next, Mahaffey argues L.Ed.2d 314, Kentucky, 479 v. closing argument at prosecutor’s Griffith 649.(1987), 708, subsequent hearing falsely implied that Ma- sentencing retroactively, and ly applied held that Batson than a sentence less haffey could receive Supreme directed the Illinois Court therefore if imprisonment life refused natural Mahaffey’s in case to conduct the trial court penalty. as- impose to the death trial, ability deprived Reginald to detailed account of the facts 2. For a more 388, crime, People People Mahaffey, 128 Ill.2d see brother. See cross-examine Mahaf N.E.2d 366, (1989). N.E.2d 1172 fey, Ill.Dec. 132 Ill.Dec. 128 Ill.2d retrial, (1989). Reginald was On Reginald’s Supreme Court reversed 3. The Illinois to death. See again convicted and sentenced holding appeal, his case direct conviction on Mahaffey, People 209 Ill.Dec. 166 Ill..2d Jerry’s light in con- should have been severed N.E.2d 1055 testify Jerry did not and the fact that fession prosecu peremptories. hearing prosecution determine whether declined so, prior the Fourteenth Amendment tion violated do as it was entitled to do to Bat- challenges. son, employing peremptory in its Mahaffey’s court and the denied motion black, Mahaffey, argued that pros who is to dismiss the venire. it ecution violated when exercised Mahaffey’s appeal pending While was peremptories on all black venire seven Court, Supreme the Illinois that court or Mahaffey’s pet- men were considered for Hett, judge, dered the trial Thomas con jury. it See Ill.Dec. 539 N.E.2d at hearing duct Batson to address 1175. The trial judge found that prosecution claim that the discriminated prima could not establish facie case exercising peremptory challenges. its discrimination under Batson. The Illinois procedures accordance with outlined finding, Court affirmed this see Batson, 96-98, 106 see atU.S. Ill.Dec. 539 N.E.2d at did Judge permit Mahaffey Hett directed to below, court at 781- district see present support of his claim Mahaffey argues that district court and, unconstitutional discrimination if the holding he erred failed establish a court found had established a prima argues he facie further discrimination, case of require facie purposeful established a case of dis prosecution produce justi crimination under Batson that entitles him to the questioned challenges. fications for corpus. reject a writ of habeas We 132 Ill.Dee. 539 N.E.2d argument affirm the district court’s hold support of his claim that the evidence estab

ing, though employ analysis a different Batson, lished a case under Ma- previously than the courts that have ad haffey emphasized following dismissals dressed Batson claim. cause, prosecution perempto its used ry challenges to of remove all the black Relating 1. Facts to the Batson Claim presented jury. veniremen for on service the At the Mahaffey’s jury, selection of seven addition, In he argued that fact the presented black veniremen were for non- prosecution majority had exercised a its of following challenges alternate seats for peremptory challenges by a seven six — State, cause. The which given was a total of margin black veniremen further estab —on peremptory challenges (Jerry Regi- and Further, lished a facie case. each), nald were given exercised pointed during Judge out that the voir dire peremptory on each of the seven black prosecution Hett had asked the explain presented jury, veniremen for the also and for the reasons its use of peremptory its six Mahaffey’s on white veniremen. challenges. Mahaffey argued Judge counsel moved dismiss the venire each pri- Hett’s concern was itself of indicative prosecution time the struck a black venire- ma facie ease. man, arguing prosecution im- properly excluding jury. response, blacks from the In Attorney Assistant State’s This motion was of argued renewed the conclusion Paul Tsukono5 first dire, produced voir jury which had com- had not established a facie case. posed jurors of regard, prosecution eleven white and one Asian pointed out that juror.4 posed trial judge, The of accepted had all it had a black woman to serve as an questions potential jurors during juror, alternate which it believed served dire, expressed voir regarding Mahaffey’s concern refute discrimination claim. Fur- prosecution’s ther, peremptories use of its prosecution and including noted prosecution invited the' with peremptory challenges come forward the two that it exer- justifications selecting for its jurors, majority exercise cised alternate prosecution 4. The peremptory also had two participated chal- 5. Tsukono had earlier both lenges jurors. in the selection of alternate It jury prosecution Mahaffey's selection and veniremen, exercised on both them while and case. subsequently a black venireman was seated as an alternate. Honor, believe, stated, your “I He to- well. had been directed peremptories of its from the first prosecutor has crossed over eight to seven by an wards white veniremen — stage has offered a stage the second into margin. why there was explanation deal of great Attorney pro- then The Assistant grounds no exclusion Blacks fact non-discriminatory reasons offer ceeded to argued then counsel race.” peremp- of its prosecution’s exercise for prosecution’s asserted at least some of the analysis: prefaced his Tsukono tories. example, justifications pretextual. For were “Now, challenges against People’s that reluc- prosecution asserted while minority jurors examined two can be justifi- jury serve on the had been tance to bases, individually collectively. I suggest dismissals, peremptory some of its cation for which are suggest that there are reasons white argued that other dire, reasons which from the voir revealed prosecution not jurors dis- whom had justify apparent from the record are expressed a similar reluctance missed had minority challenges against these the State’s , justifications asserted Other serve. proceeded to jurors.” prosecutor The then argued, pretextual, Mahaffey’s counsel also justifications exercising per- describe consistently pros- by the applied or were venire- against stricken black emptories white members of to the black and ecution men, justifications to each he these tied Mahaffey’s counsel concluded the venire. individually. prospective ju- Some of them stating pri- had established rors, unwill- example, demonstrated an requested further though ma facie penalty, even impose the death ingness to prosecution’s respond to the opportunity to cause; though they not been stricken for had justifications. non-discriminatory proffered unwillingness an also some had demonstrated decision, inability Hett, or an to follow instructions. Judge announcing prosecution that it had exercised analy- also noted that he had made a “detailed indicated occupation; peremptories bases of reading on the process” by selection sis police, reluc- youth, experience with the prior taking regarding the entire tran- that, in light Tsukono also noted veniremen. characteristics personal that Hett noted jury selection evolving (which nature of the proffered of the not as prosecution had the prosecution process, justifications), gen- such as its race-neutral status, der, ownership, marital scrutiny of in the home sliding scale used a eight white juror comparing in similar of or not were whether determination (including al- stricken veniremen were or excluded. Reasons would be chosen who ternates) veniremen the seven black very with may begin- have existed at the further noted that stricken. He have been who were ning selection amended, on the did not excluded, to individuals seated changed those due selected, significantly from those who were already composition those differ respect characteristics. to these and the overall stricken challenges used number concluded, people “all who were totality of He composition, overall or the people to who were were similar concerning that individual excused circumstances were The who were excused chosen. Whites juror’s background. excused.” Blacks who were similar argument prosecutor The then concluded his asserting had not made point, Judge Hett con- At this went showing under Batson. prima facie responses potential jurors’ sider prosecu- light rebuttal, questioning argued voir dire justifica- non-discriminatory asserted only argued tion’s prosecution had impose respect willingness to it With showing, but that tions. prima facie against a example, Judge Hett penalty, justifications as the death nondiseriminatory its offered any question finding “where there was found that he had not an infer- established discrimination, juror penalty, prosecution ... there ence of raised ten- justifications and two dered its race-neutral were four Whites Blacks court, justifications pre- and that these by the State.” Of the veniremen are excused crimes, Accordingly, Mahaffey textual. been asks us to previously who had accused reverse grant the district court and him Judge identified two white one- re- Hett land lief veniremen, on his claim. Batson black all whom were stricken.6 that, conclusion, Judge Hett looking noted Judge. It is true that Hett couched circumstances, totality of “I do not decision the context of whether a showing, believe there prima established facie case. More prima showing facie that the State exercised over, grounded the Illinois Court challenges their a manner that showed whether, analysis its in the context of consid They racial discrimination. treated both the circumstances,” ering “all relevant the trial being Blacks and the Whites who were ex- prima court’s facie case determination was way. apparent cused in-the same It is in the against weight the manifest of the evidence. they record that used the same factors Ill.Dec. 539 N.E.2d at 1184. Whites, again found as to as to Blacks.” similarly rejected The district court Mahaf- Judge Hett therefore concluded that Mahaf- fey’s claim on the basis that there was fey prima to establish had failed facie ease reason to Judge doubt correctness under Batson. finding regarding Hett’s factual the existence prima of a facie case. See 978 2. Discussion true, however, It is also as should be. argues apparent lower lengthy from our recitation failing recognize courts erred that he hearing proceedings, the State Further, prima established a facie case. provided justifications its race-neutral for the that, notwithstanding asserts the trial peremptory challenges.7 court’s. use of its This fact that, expresses 6. The dissent the view "rather en black veniremen that Tsukono had not dis- comparing than the excused individually, African-Americans cussed in addition to the five venire- whites, judge to the excused ... trial should previously men that he had discussed. comparing have been the excused African-Amer- legal justification position for its remained, icans to the whites who essentially it because was not un- through comparison such a could the as- proffer justifications der Batson to played any sess whether race State's role challenges.” until established his Post 693. While this it observa- substantively cogent, respectfully sug- necessarily justifi- tion is gest could not have furnished those judge proceeded in the fashion cations before facie case was estab- prescribe. that the dissent would As evidenced significance lished. This far attributes more supra, Judge underlying inquiry Hett’s reveals evidentiary burden-shifting approach Batson's justifica- that he indeed considered the State’s York, than it deserves. In v. New Hernandez respect tions with to the entire venire. (1991), relies, prosecution on which the the Su- In both its brief to this Court and at oral preme pros- Court addressed a case in which the argument, contended that it never has justified peremptoiy challenges ecutor his before justifications peremp- offered race-neutral for its the trial court could prima decide whether a tory challenges, solely because never facie cáse had been plurality established. A of prima a facie established case of discrimina- recognized departure Court "[t]his clearly wrong factually, tion. This contention is proceeding normal course of need not con- Attorney Assistant State's Tsukono offered ‘[Wjhere [prosecutor] cern us.... has done hearing apparent the Batson "reasons which are everything be that would himof if the justify from the record which the State's chal- properly prima [defendant] had made out a facie lenges against minority jurors.” these Tsukono case, really whether the [defendant] did so is no then discussed five of the seven stricken black 359, longer relevant.’” Id. 111 S.Ct. 1859 individually, discussing justifications veniremen (quoting United Postal States Serv. Bd. hesitancy imposition Gover- regarding such aas of a of Aikens, 711, 7T5, 1478, sentence,' nors v. 460 U.S. problems death 103-S.Ct. following or because, (1983)). Further, justi- court’s instructions.- This as the he discussed Supreme applied recognized fications that Court has to more than one the related venire- man, prior knowledge burden-shifting such as of approach, a a context Title VII’s or previous suspicion activity. of criminal These facie case method was "never intended justifications applied mechanized, Rather, collective rigid, to the two slrick- to be or ritualistic. it It non-diseriminatory reasons. is evident Mahaffey’s counsel at recognized transcript hearing 677, from the Batson by the supra at hearing, see prosecution’s jus- 366, Judge Hett considered Court, 132 Ill.Dec. see Supreme Illinois concluded, light of the “to- tifications and gave (“Finally, the State N.E.2d at circumstances,” prose- tality of the black challenging the seven criteria for its peremptory not its exercised cution' had veniremen, the criteria asserting discriminatory man- challenges racially in a veniremen, regard to without to all applied Attorney Tsukono Assistant State’s ner. race.”). unwilling- as an provided justifications, such recog Court plurality of the A penalty, an inabili- impose the death ness York, U.S. v. New in Hernandez nized instructions, prior run-in ty a to follow 352, 1859, 114 L.Ed.2d 395 111 S.Ct. police. Judge Hett conducted with the prosecutor offers race-neutral when analysis” of the voir dire and own “detailed challenges peremptory explanations for justifications in discussed the State’s question ultimate rules on the the trial court challenges of peremptory of its use context discrimination, the issue of intentional justifica- respect to these dire. With voir pri- had satisfied the defendant whether tions, Judge Hett found that the dis- See id. at moot. ma facie burden becomes lines. racial con- missals transcended 359, has fol This Circuit 111 S.Ct. 1859. knowledge and recollection junction with his v. See McCain Gram approach. lowed (at expressed voir dire he (7th Cir.1996), cert. ley, 96 F.3d prosecution’s use of regarding the concern - -, denied, 117 S.Ct. prior as his inter- its as well peremptories), , (1997); Cooper v. States L.Ed.2d 482 United prosecutor with Tsukono as actions —the (7th Cir.1994); see 19 F.3d 1160-61 Judge totality Hett circumstances— Evatt, v. also Matthews not established concluded that (4th Cir.1997) approach), (following the same The fact purposeful discrimination. 102, 139 U.S.-, finding in the context of judge couched his Love, (1997); 40 F.3d L.Ed.2d Johnson consequence. showing” is of no “prima facie (3d Cir.1994) (same); United 663-64 to establish is insufficient Evidence Johnson, 941 F.2d States is cer- discrimination even an inference (same). Cir.1991) good approach makes This opponent meet the tainly sufficient to sense, light that the ultimate of the fact persuasion in strike’s ultimate burden oppo- always whether the question remains purposeful discrimination. See proving the burden of the strike has satisfied nent McCain, at 293. The trial purposeful discrimina- persuasion regarding that was avail- all of the considered Elem, 514 U.S. tion. Purkett v. him, personal with his recollec- along able (1995) (per demeanor regarding prosecution’s tions Hicks, curiam); Mary’s Honor Ctr. St. cf. Indeed, in the voir dire. approach at 510-11, 509 U.S.- expressed at voir light of the concerns L.Ed.2d 407 dire, painstaking, judge conducted analysis, then strong argument thoroughly detailed makes While to es- was unable showing, concluded that he established discriminatory part of issue, motive on the pros- as the tablish not consider need prosecution. by proffering bypassed stage its ecution sensible, analysis out the district way in is borne merely orderly This error to evaluate is cases, many recognition ”[i]n experience as it court’s light in of common evidence explanation an in re- prosecutor simply question offers of discrimination.” bears on the critical Waters, objection which makes the sponse an Corp. to 438 U.S. (1978). Constr. v. See Furnco unnecessary.” 978 case decision 57 L.Ed.2d Moreover, Mahaffey suggests, the required as was at 781. Regardless of whether the develop new implication the State could justifications provide race-neutral its date, justifications after the State at this late certainly hearing, it did so. The State’s Batson challenges, already justifications provided for its justifica- provide those it did not assertion that burden-shifting pervert Batson’s do would serve simply not so because it was tions precedent framework. any or in fact. lacks foundation prosecutors, A court’s decision on ulti local conditions and determin discriminatory ing peremptory intent consti-1 question challenges mate finding by impermissible of fact that we review with were not motivated tutes a racial- Hernandez, appeal. group great on bias: deference We see no reason disturb this 1859; finding.” id. Ill.Dec. N.E.2d J., (O’Connor, joined by similarly any Sca 1185. We are unaware of rea lia, J., concurring judgment). presumption in the On fed son to disturb correctness review, findings of statutorily required eral habeas the factual that we are to accord the See, presumed e.g., finding. state trial court “shall be be state court’s factual Pit 2254(d) (1994); (7th § sonbarger Gramley, correct.” 28 U.S.C. see F.3d — Clark, Cir.1998), Splunge petition filed, F.2d also Cir.1992). -(U.S. 1998) (No. statutory July Aside from the com U.S.L.W. 98- 2254(d) context, 5153). § reject mand of in this deference We therefore Bat- to the trial court on the . issue discriminato son claim. sense,

ry good' intent makes as Court recognized in Hernandez: B. Prosecutorial Misconduct at Sentencing Hearing

[Tjhe finding turn on largely will evalua- credibility. typical peremp- tion In the 1. -Facts tory challenge inquiry, ques- the decisive Mahaffey testified in his own at his behalf will tion be whether counsel’s race-neutral sentencing hearing. prosecution’s ques- explanation peremptory challenge for a that, tioning Mahaffey revealed while he should be believed. There will be seldom trial, awaiting participated he had in an issue, bearing much escape County jail armed from the Cook the best evidence often will be the demean- apprehended days two later. attorney who exercises the chal- When attempt asked whether he would lenge. As with the state of of a mind n escape again, Mahaffey replied, “I don’t juror, prosecutor’s evaluation of the state know.” of mind credibility based demeanor and peculiarly judge’s prov- lies within a trial During closing argument, Mahaffey’s his ince. repeatedly requested jury counsel to re- imposing sist a death sentence so that Ma- (quotations 500 U.S. at 111 S.Ct. 1859 haffey spend could instead the rest of his life omitted). appellate citations an Unlike in prison.8 Mahaffey’s posed court, rely solely paper on a request to the on five occasions his record, position the trial court is in a unique closing argument, making comments such as: to review credibility and demeanor of why now, “That am here still pleading attorneys prospective ju both and the you Jerry not let free but to live the See, rors. e.g., Cooper, United States penitentiary, rest his life in the not as a (7th Cir.1994). man, prisoner, free as but still a man.” In discussed, Judge As we have Hett consid- response, prosecutor argued jury: prosecution’s ered detail the they When you they spend tell will justifications, analysis conducted his own re- prison, rest of their lives there is no garding justifications whether of these guarantee. guarantee, There is no ladies pretextual, and concluded that Mahaf- gentlemen, because of what fey had not racial shown discrimination. may say law you but because of what Moreover, fully the Illinois Court heard from the witness stand. considered the trial court’s treatment hearing prosecutor and concluded: “The record The further told if shows that experi- the trial it used did not sentence brothers to ence, superior death, as well knowledge letting go “You will be them because law, mandatory 8. Under Illinois Mahaffey a sentence life death of sentence in this because imprisonment possibility parole murdering the people. without of had been convicted of two (or life”) 8—1(a). only "natural was the alternative to a Comp See 730 III Stat. 5/5—

681 interpretation is of 778. This a reasonable turning on the law and you your back will be Even if we go.” Mahaffey disputed comment. They will be let justice. interpretations of disregard instruct the these reasonable requested that the death, prosecution’s accept him to those jury if it did not sentence the comments and that Vecchio, by Mahaffey, statute to sentence as in Del the asserted court parole. The enough of life without be to overturn the him to term “this would not however, court, give pros- this instruc- refused to at 1385. The death sentence.” tion. not “ex- contested statements were ecution’s false,” prose- as tensively materially the 2. Discussion Mahaffey that explicitly stated cution never Mahaffey appears re to make two parole eligible under Illinois law for could be process arguments in this context. lated due Toumsend, (quoting or release. See id. novo, the stan We review these claims de 1252). Further, light U.S. S.Ct. prevailed dard of review before Mahaffey’s prior escape See, e.g., Abrams AEDPA effective. became response sentencing equivocal (7th Barnett, v. Cir. escape attempts, hearing regarding future 1997). upon argument first relies His that, jury already was aware of the risk was “no prosecutor’s comment there future, Mahaffey point in the could at some spend Mahaffey would guarantee” that public. accordingly upon the It is be loosed only prison his life in “not because rest of jury “questionable [the whether the relied on may say,” along with his com what the law ‘pronouncement in its statements] contested that, impose jury if the failed ment ” sentence.’ See id. Because go.” “will penalty, be let death challenged state- has not established that im contends these statements of “constitutional ments were inaccuracies law, point in plied he could at some Tucker, 404 magnitude,” see United States paroled pris or from the future be released 92 S.Ct. 30 L.Ed.2d U.S. opinion in Vecchio v. Relying on. on our Del (1972), reject of his due this formulation Corrections, 31 F.3d Department Illinois challenge. process Cir.1994) (en banc), 1363, 1385 cert. de nied, 514 U.S. argument Mahaffey’s second related impli argues incorporates analysis the fact into above possible inference “raise[s] cation him— allow that the trial court refused to designed pronounce there was a ‘careless through or an instruction— argument either [that was] ment of sentence on foundation only explain jury alterna that the ” materially extensively (quot false.’ Id. a sentence of tive to a death sentence was Burke, 736, 741, ing 334 U.S. Townsend prose argues natural life. (1948)). 1252, 92 L.Ed. implication Mahaffey could ulti cution’s mately prison pose from prosecution’s comment that “there is be released society, ... of what law threat combined guarantee because only statu subject differing inability to inform say,” to a number of alternative, deprive him of due tory served to interpretations. Both the Illinois rule of argument This evokes the process. court below construed Court and the district Carolina, to refer to Mahaf- Simmons South prosecution’s comment Sim L.Ed.2d 133 fey’s escape jail re- previous and his prosecution argues when the not know whether he mons held that sponse that he did sentencing escape capital defendant’s attempt again. See 978 to would danger, 778; represents a future defendant F.Supp. N.E.2d at 1192. Fur- inform permitted ther, “argu- the defendant be court stated that district eligible not be jury that he would anything pen- less the death ment that than statutory alterna go parole, long so alty letting of defendant was will be imprisonment tive a death sentence is nothing more or less than comment parole. id. at only just possibility without penalty was the the death 2187; 114 S.Ct. 2187 id. at legally coiTeet sentence.” 682

(O’Connor, J., 687, 104 context, concurring judgment). at S.Ct. 2052. we do explicitly on Wisely, Mahaffey rely second-guess strategies does not not defense in his briefs to this Court. at Simmons That were sound reasonable time of the 151, 521 simply they ultimately proved v. U.S. because because O’Dell Netherlands 1969, -, 1977-78, Rather, S.Ct. 117 138 unsuccessful. must con “[c]ounsel an prosecution’s L.Ed.2d 351 held Simmons test case and advance defense; fulfilled, meaning good a new rule within the if nounced that role has been Lane, 288, 109 1060, Teague 489 corpus U.S. S.Ct. writ of habeas not should issue.” (7th (1989); Gilmore, 876, pre 334 our Circuit L.Ed.2d Holman v. 126 F.3d - Cir.1997), denied, viously -, reached this same conclusion Stew cert. U.S. Cir.1995), (7th Lane, 296, 1169, 140 (1998). 60 F.3d art 299-303 S.Ct. L.Ed.2d 179 denied, rt. 518 U.S. 116 S.Ct. ce prejudice To establish under Strick (1996). 2580, 135 The fact that land, similarly satisfy a defendant must explicitly rely does Sim high threshold. criminal al “[A] defendant mons, however, nothing Teag- alter does leging prejudice must show ‘that counsel’s principle nonretroactivity ue’s of new deprive as errors were so serious rules. became conviction final trial, of a defendant fair a trial whose result when Court denied certio- ” Fretwell, is reliable.’ Lockhart v. 506 U.S. He rari direct review. therefore cannot 364, 369, S.Ct. L.Ed.2d 180 Simmons, benefit from the rule of which the (1993) Strickland, (quoting U.S. Thus, reject Court we announced 2052); Eddmonds, 104 S.Ct. see also 93 F.3d process this variant of his due claim as well. (“Prejudice at 1313 in the Strickland sense ‘unprofessional ' refers to egregious errors’ so C. Assistance Trial Counsel Ineffective ‘that the trial was rendered unfair and the Mahaffey argues that his trial coun ”) suspect.’ verdict (quoting rendered Kim sel, Decker, provided Steven as ineffective Morrison, 365, 374, melman v. 477 U.S. First, ways. argues sistance in two he (1986)). S.Ct. 91 L.Ed.2d 305 In the Decker failed investigate and introduce context penal of ineffective assistance at the pretrial suppression hearing evidence at a ty phase capital of a noted that Second, regarding confession. he prejudice requires showing “that reason argues investigate Decker failed probability able exists but for counsel’s potentially introduce mitigating evidence performance, substandard sentencer sentencing prevail hearing. his To on either hvould have concluded that balance claims, Mahaffey satisfy of these aggravating mitigating circumstances ” Washing familiar standards Strickland v. did not Washington, warrant death.’ Hall v. ton, 668, 104 466 U.S. 80 L.Ed.2d (7th Cir.1997) (quoting (1984). requires This test him to demon Strickland, 2052), 466 U.S. at performance by strate both deficient his trial - denied, U.S.-, 264, 139 cert. prejudice counsel and as a result of the defi (1997). Reviewing Mahaffey’s L.Ed.2d 190 ciency. See id. at S.Ct. 2052. novo, claims de we conclude that neither of satisfy can them the above standards. per order establish deficient formance, a defendant must demonstrate Suppres- Ineffective Assistance at the that he has been denied his Sixth Amend sion Hearing right ment to a fair trial as the result of the incompetence See, e.g., of defense counsel. two arguments raised Peters, pretrial Eddmonds First, suppression hearing. he Cir.1996), -, argued he did not understand the Mi “This warnings given randa that were- to him requires showing that police, so made errors knowing therefore he did not serious that counsel not functioning ly intelligently right waive to counsel guaranteed Second, ‘counsel’ prior defendant confessing. argued Strickland, the Sixth Amendment.” physically 466 U.S. he was giving coerced into Mahaffey him testi- by who and heard observed he was “brutalized” confession because evidentiary in connec- fy hearing at the held Mahaffey’s his wife corroborated police. Mahaffey’s with ineffective assistance tion police came that when account. She stated claims, impression commented on the also him she Mahaffey’s apartment to arrest to Mahaffey outside, made: outside; she while was ushered screaming Jerry Mahaffey and the sounds saw in 1997 is heard her husband [I]f Mahaffey In an being Jerry thrown around. that Steven Deck- of furniture like mid-1980s, de- is attempt explain away the confession’s saw in the then Decker er failing surrounding of facts not be faulted consider tailed recitation murders, Mahaffey mental Prior to his arrest contended retardation. Pueschels’ time, living employed Mahaffey was full spoon-fed him the details police that family reasonably capable of following with his and period two hours crime over a of confession, holding own examination. Ma- under twenty-page his arrest. His testified, of his memor- haffey was the result At at 770. the time provided to izing information that had been no suppression hearing, there was reason- by police. him the abilities, Mahaffey’s mental and we question pursue say that Decker’s failure to cannot Decker, Mahaffey argues his trial now that psychological evidence amounted such counsel, provided ineffective assistance incompetence.” “gross failing Ma- suppression hearing by to have by psychologist. haffey a clinical examined Mahaffey’s physical In the context of Mahaffey’s post-convic- at the state Mahaffey argues argument, that coercion Mahaffey by a stage tion have examined did provided not Decker ineffective assistance Gunn, psychologist, Harry who concluded Dr. testimony interviewing presenting the of and retarded, mildly that could Mahaffey’s neighbor, Charles Patterson. read, likely not barely most could have heard Patterson would have testified he rights they thuds, his Miranda when understood screaming, and other similar sounds given him. asserts Mahaffey’s apartment at coming from probability there is reasonable some suggested of arrest that time if suppressed would have been Mahaffey’s confession Opposing being one was beaten. presented, testimony this had been prosecution argument, the physical coercion of his trial would been Mahaffey’s outcome testimony arresting- presented sup- if officers, different the statement had any in whom police all of denied pressed. addition, brutality. the two stances of Attorneys who took Assistant Mahaf in- responses to written Decker submitted fey’s confession testified an terrogatories in connection with eviden- they brutality complained and that tiary hearing in the district court conducted mistreatment physical evidence of saw7 Mahaffey’s ineffective assistance to address Mahaffey. during The their contact response questions about the claims. prepared technician who medical advisability of mental presenting evidence jail County similar report intake at the Cook hearing, suppression retardation com ly noted that there -wasno evidence any- that he never “discerned Decker stated brutality. Finally, physical plaints [Mahaffey] was un- thing whatsoever taken of presented photograph prosecution Further, thought able Decker to read.” gave his the time he confession questionable would be such evidence noted, which, con the district court below [Mahaffey’s] “given written statements injury he sign tains “no the substantial my to un- knowledge his abilities other as to nose.” by a to his claimed was inflicted blow7 im- Decker’s derstand communicate.” Supp. F. at 776. Mahaffey’s cognitive pression of abilities testimony, others; The court considered perception Ma- buttressed testimony by Mahaffey given along with the him as someone haffey’s sister described wife, great that “the all and his concluded “presented though himself weight refuted judge, the evidence” knowledge.” The district court U.S.-, brutality “overwhelming and that claims of Mahaffey’s Miranda viola- 137 evidence” refuted L.Ed.2d 548 context, In this not believe tion claim. do mitigation presented Ma- probability is a reasonable that there haffey’s sentencing hearing consisted of the suppression hearing would have result wife, testimony of three of his relatives —his neighbor Mahaffey’s different if Charles mother, his and his sister —as well as the See, testify. Patterson had been called to Mahaffey Mahaffey’s testimony himself. Wright Gramley, v. e.g., F.3d mother related the difficult circumstances of Cir.1997). (7th Although Patterson heard upbringing her a “rough” son’s “vio- Mahaffey’s apartment, coming from sounds neighborhood, jury lent” she told Mahaffey he states that he never saw at the Mahaffey’s loving relationship with his fami- judge time of his arrest. The trial found the ly. She further said that her son’s death testimony prosecution’s witnesses “very would affect her much ... because I credible, Patterson, unlikely and it is mother, I deeply, am him his and love having physical without evidence that seen presence would be missed.” wife brutalized, Mahaffey was would have altered similarly jury testified and told the of his Thus, analysis. we court’s conclude that relationship with close her and their children. prejudice to' unable demonstrate jury testified and told the that his under for trial fail- Strickland counsel’s family him if would miss he were sentenced testimony. present ure to Patterson’s live; death, and he discussed his desire to being. “I’m a I feelings. human I have Ineffective Assistance at the Sentenc- a heart. desire live.” coun- ing Hearing presented closing argument sel a coherent jury, discussing, among things, the other Constitution, As mandated unplanned manner which the Ohio, 586, 604, see Lockett v. U.S. brothers had arrived at apart- the Pueschels’ L.Ed.2d 973 Illinois contrasting ment and their crimes with a penalty death requires statute the sentencer murder-for-hire. Decker also discussed the all mitigating consider factors relevant to punishment nature of argued imposition of a sentence death. See III. jury mercifully should act respon- and not be Comp. compe Accordingly, 5/9-1(c). Stat. addition, an sible for death. individual’s representation tent demands that defense mitigation he focused the on the evi- present argument counsel an that focuses the presented, dence that had been stating that any mitigating attention of the on fac family, “has a he has a wife who See, Thieret, e.g., tors. Kubat v. 867 F.2d him, depend loves him and children who on (7th Cir.), denied, cert. 493 children who want him to remain alive in the (1989). 110 S.Ct. 107 L.Ed.2d 159 Like penitentiary, a wife who wants him to remain strategic decisions, other a defense counsel’s penitentiary.” alive'in the reasonable choice omit certain mitigating arguments evidence in favor of alternative When considered the context of the alternatives, does not render his assistance ineffective. strategic other available ease, id. infra, at 368. In the instant Mahaf we discuss do not believe that fey’s adopted strategy performance sentencing Decker’s fell be- pleading jury’s mercy for the at the sentenc low the competence. level reasonable This matter, ing general Hall, hearing. As a we have case is not like in which the defense recognized plea mercy simple closing argument “[a] counsel’s sentencing to the choice, plea be a valid on upon sweeping focuses “relied largely ir- if particular appeals defendant and the circum judge’s relevant personal be- particular stances of the religious offense.” Hall principles.” liefs and 106 F.3d at (7th 742; Cir.1997), Washington, Here, presentation Decker’s focused - denied, U.S.-, , cert. specifically Mahaffey’s situation and the — (1997);1 impact see also Eddmonds that' a sentence of death would have Peters, (7th Cir.1996), addition, Mahaffey’s family. F.3d our hold- personality Ma- upon from “borderline disorder.” solely not based “coun- ing in Hall was haffey mitigating argues that if this argument to closing offer failure in sel’s introduced, had been there is reasonable disregard any than blatant reason other probability that at least one of the twelve life,” id. at sparing Hall’s Illinois law jurors re who sentenced him would have implicated in the shortcoming which is not impose Em fused death sentence. See premised We event. also instant case Gramley, erson upon holding Hall the “total failure” our Cir.1996), U.S.-,-, prepara- Hall in attorneys “to contact Hall’s 1260, 1289, hearing and their sentencing tion for provided therefore asserts Decker He mitigation present to consequent failure his in- failing assistance to unearth ineffective context, Mahaffey In this witnesses.” Id. present jury. and it to the See this evidence prepare to contends that Decker failed com- (“Where Hall, appar at F.3d 749-50 it is sentencing hearing, petently for the issue concerning the from evidence crime it ent to we turn. now defendant, self, from with the or conversation provided in argues that Decker readily of infor from other available sources because he failed to ob effective assistance mation, that the defendant has some mental to school records and investi tain likely qualify other that would as condition health so that this evidence gate his mental factor, investigate mitigating to a failure ’ mitigation sentencing used in could be assistance.”). will be ineffective interrog hearing. respopses to the Decker’s requires de Constitution Mahaffey in with posed by connection atories capital in to a fense counsel case conduct evidentiary hearing stated that Decker investigation potential into miti reasonable Mahaffey “didn’t have a stel was aware that See, Strickland, e.g., factors. 466 U.S. gating completed lar had school record” and Stewart, 2052; 74 F.3d at at awareness, Mahaffey grade. eighth This investigation” A does not “reasonable contends, compelled to have Decker should strategy,” see mandate a “scorch-the-earth hope in obtain the school records Hall, requirement F.3d at Mahaffey’s mental learning more about state. limited time would fail to consider the and post-conviction counsel obtained pre lawyers resources that defense have records, school which indicated that these sentencing hearing. paring for a Stew IQ ten Mahaffey had an of 64 when he was Rather, art, 74 F.3d at 135. contours old, years special was transferred edu by investigation are dictated a reasonable grade, cation school when he was the sixth case, including circumstances each reading spell serious difficulties crime, conversations with facts argues ing. Mahaffey that the information him, with and others familiar defendant these records would com contained of informa readily available sources other investiga pelled Decker to conduct further See, Hall, tion, testimony. e.g., such as his tion into mental health. Stewart Cf. Stewart, 749-50; at 135. F.3d at Cir.1996) Gramley, 74 F.3d indi evidence will in some cases While this (recognizing that it constitutes ineffective as investigation ben that further would be cate investiga to fail to further sistance conduct eases, eficial, indica other where these “[i]n when it tion into defendant’s mental- status lacking, may ‘reasonably are tions apparent readily from available is his with de [the conversations surmise has “some mental or oth the defendant evi-' psychological that character and fendant] repay investigation”), further er condition that will ” help.’ (quoting Id. would be of little dence U.S.-, rt. ce 2052) Strickland, 113, 136L.Ed.2d 65 (alteration context, this original). contends, investigation, Mahaffey recently is reasonable “[i]t Further have noted place on his psychological lawyer evalua- a certain reliance have included a for a would client, family tion, ultimately if his so that the client and such as the one conducted scent, ... Gunn, lawyer off -the have revealed that friends throw the Dr. that would failing go lawyer cannot be faulted Mahaffey mentally and suffers retarded (a path warnings thus off.” Thomas v. down the closed to understand his Miranda con- (7th Cir.1998). Gilmore, suppres- 144 F.3d tention Decker advanced hearing). Mahaffey argues sion Mahaffey’s argument-can be in evidence should have Decker further led terpreted claiming assistance ineffective See, investigate Mahaffey’s mental state. first us to two distinct bases. The asks Hall, e.g., part 749-50. As capital se per establish a rule that defen hearing Mahaffey’s district court’s ineffec- lawyer always obtain dant’s available claims, responded tiveness Decker inter- records, records, institutional such as school rogatories regarding preparation his for the might give mitigating rise to evidence sentencing hearing. Decker stated that he argument We re factors. addressed asked both mother about Thomas, cently petitioner where the ar Mahaffey’s history, health and that mental provided gued lawyer that his inef defense both them denied subpoena failing fective assistance problems.9 importantly, mental More Deck- ¡and prison them and school records submit er’s conversations and extensive contacts psychiatrist Cognizant for evaluation. him led to believe that investi- prevailing view that a determination of gation Mahaffey’s into un- mental state was typically depends on cir ineffectiveness warranted. throughout Decker testified that id. cumstances of each see at we trial, strategy he discussed with Mahaf- recognized per that such a se rule would. fey police reports him docu- showed meaning constitute new of rule.within ments, Mahaffey of which none trouble had Lane, Teague v. understanding. Decker also considered Ma- Because we haffey’s confession, lengthy written which corpus grant proceedings relief in habeas Mahaffey had read and corrected. Based of, rule, id., on the basis a new see we de factors, upon these Decker stated that he sub-, clined to decide failure whether investigation that further indication poena per institutional records was inef se Mahaffey’s into mental condition would have Thomas, 144 F.3d at fective. See 516. The produced any mitigating evidence. This as- apply same considerations the instant Mahaffey sessment of is consistent with that case, and grant upon we are unable to relief sister, Mahaffey’s made own stated Mahaffey’s that a coun contention defense “Jerry presented though himself as he sel’s failure to obtain school records neces all knowledge.” this sarily incompetent. renders his assistance We must also consider in this context the Although Teague, the State did not raise we findings factual judge, the district court may invoke its rule even when the has opportunity who had an to observe listen See, Thomas, e.g., waived-it. F.3d Mahaffey evidentiary hearing. As 516; Washington, Winsett v. discussed, assessing we have Mahaffey’s (7th Cir.1997). testimony, judge the district “if found that Mahaffey’s Jerry This leaves Mahaffey conten I saw in 1997 is like the that, given Jerry tion the circumstances of this Mahaffey that Steven Decker saw in particular case, mid-1980s, Decker’s failure to subpoena then Decker is not to be professional school failing records fell below faulted for consider mental retarda- context, Mahaffey upon norms. F.Supp. relies accept tion.” 978 We the evidence that was apparent finding Decker: the district court’s in this regard, as “didn’t have a rec stellar school presented us with no evidence ord,” only completed eighth he had it to indicate that is erroneous. As the dis- grade, found, and he contended that he unable was trict court “nothing in his Ghent’s de- (cid:127) 9. While the prepared extent to Decker they which fact made district court are unless Mahaffey’s sentencing hearing See, mother for the clearly e.g., Camp, erroneous. Griffin court, disputed was in the district (7th Cir.1994). district event, testimony pre- credited Decker's that he challenge appeal does not the truth- pared Mahaffey's testify. mother to aspect fulness of Decker's account. F.Supp. at findings 770. We must defer such meanoi; falling below the Decker evidence than did Steven or actions showed professional compe- minimum had mental standards his client condition required by tence the Sixth Amendment. mitigate would sentence.” satisfy is unable to were corroborated Because 770. These observations Strickland, prong first see 466 U.S. at fam- by Decker’s discussions reject this ineffective as- similarly Decker no reason to ily, gave claim.10 investigation would sistance believe that further prove fruitful. III. Decker en-

We therefore conclude that investigation into Ma- gaged in a reasonable constitutional Mahaffey has not established state, haffey’s nothing as there was mental respect error with to either his conviction or apparent to Decker that further to indicate judgment affirm the sentence. We therefore investigation was The mere fact warranted. of the district court. record, which in Mahaffey’s poor scholastic many can be attributed to factors other cases ROVNER, DIAMOND Circuit ILANA difficulties, psychological than mental or Judge, dissenting. require campaign an insufficient to all-out In selecting the that would decide mitigating psychological uncover evidence. Jerry Mahaffey’s guilty fate-whether he impres- Decker consider his first-hand did Pueschel, murdering Jo Ellen and Dean Mahaffey, along with his sions of conversa- put and whether he should be to death for members, family tions with represent- prosecutors those murders —two Thomas, upon came a dead end. Cf. ing perempto- of Illinois exercised the State F.3d at 515. ry challenges to exclude the seven Afri- jury way, venire. quite In this this case unlike can-American members is Hall, at-, ultimately supra Mahaffey in thus was convicted and the situation either or Peters, comprised a F.3d 1323 sentenced to death Eddmonds v. denied, -, Cir.1996), 117 eleven whites one Asian-Ameriean. cert. U.S. (1997), 1441, 137 Fortunately Mahaffey, States in which a the United S.Ct. Supreme Kentucky, Court decided Batson majority of the Court concluded that defense L.Ed.2d 69 incompetently by failing 476 performed U.S. (1986), appeal the Illinois while his investigate mitigating psychological evi direct Eddmonds, Supreme pending. That discovery Court was court dence. In there was a ease, Mahaffey’s ordering possession in that thus remanded file the defense counsel’s hearing and to deter- trial court to conduct a substantial indications mental contained complied illness, cursory mine selection here that review of whether such “even mandate of Bat- long with the constitutional Eddmonds’ file would revealed hearing, conducting that complex, often mental son decision. After standing, severe Mahaffey compa judge at the state trial concluded problems.” Id. 1324. There is prima facie case of or ill had failed to establish rable of mental retardation evidence Thus, Batson. The Illinois we unable discrimination under ness in this case. are basis, on that Court affirmed characterize Decker’s failure to uncover more court, present mitigating psychological at sen finding after that Decker 10. The district see, performed respect competently prejudicial, e.g., tencing had sentencing with Emerson v. hearing, (7th Cir.1996), on to nonetheless went con- Gramley, cert. prejudice 1260, 1289, whether could establish sider under denied, - U.S.-,-, F.Supp. See 978 at Strickland. (1997), we have concluded 137 L.Ed.2d Mahaffey could court found that required not establish performance failure in other cases that such a prejudice in event. element of See See, Thomas, prejudicial. e.g., was not id. at 771-74. Because conclude Deck- Eddmonds, 516-18; 93 F.3d at 1319-22. A at constitutionally performance er’s cient, was not defi- depend prejudice will on the determination prejudice we need consider ele- strength along with the facts of each Strickland, U.S. ment. See could have been intro mitigation evidence that However, we have in we note while Thomas, 144 F.3d at 518. duced. Cf. held a failure to obtain and some cases trary, subsequently federal court de district record demonstrates that the State corpus. to issue writ of habeas clined striking never offered its reasons finding violation in the no Batson selection jurors, as Afriean-American itself supreme both jury, the state concedes, and those reasons thus were never district court effective court the federal by any considered the state trial or the trial ly court’s conclusion deferred or subsequently state federal court that has prima had failed to establish a reviewed his work. The Illinois courts and People Mahaffey, ease. prosecutors intimately have been so 132 Ill.Dec. N.E.2d Ill.2d long simply involved this case for so are 1184-85 not mistaken to what occurred at the (1990); hearing. majority Batson It is rather the Peters, rel. United States ex court, later, years almost eleven that I (N.D.Ill.1997). 781-82 believe misreads order to avoid record Today’s majority understandably uncom- obvious conclusion that remand conclusion, however, fortable for it required. Batson issue is essentially means that an inference of dis- my view, and I say venture to crimination, prima therefore a facie case my colleagues majority, view even of in the Batson, even under does not arise where the Jerry Mahaffey plainly prima established a peremptory challenges State has exercised facie case of discrimination the Batson against all seven African-American venire hearing in November 1987. And because a persons racially-sensitive in a double murder shown, facie case was the State must involving an African-American defen- be now to articulate to the district Acknowledging dant and white victims. striking court its race-neutral reasons for all presented “strong argument” seven African-Americans (ante 679), facie case jury. At point, the district court bypass majority 'opts aspect decide for first time the extended inquiry proceed directly and to history of this case whether the reasons of- ultimate issue of discrimination. Such valid, for the seven fered strikes are believe, my colleagues appropriate, course is whether those reasons pretext are instead a hearing by because at the Batson ordered for Jerry Mahaffey discrimination. is enti- Court, Supreme the Illinois the came State to at tled least that much the before State of forward with for striking its reasons the Illinois out cames his death sentence. The jurors, seven African-American trial and the Constitution, interpreted United States as by judge explicitly those reasons found valid Batson, Supreme the requires Court no view, non-pretextual. my Id. at 680. a majority less. Because of this court is supported simply by conclusion is not the unwilling give Mahaffey to even I must hearing. record of the Batson It also is respectfully dissent. inconsistent with the decisions issued in this Court, case the Illinois the fed- I. court, eral district judge and the state trial presided the hearing. at Batson The The fundamental mistake I find in the majority conclusion, such a reaches more- majority’s opinion is suggestion its over, in the own face the State’s insistence prosecutors actually offered their reasons that it has its never articulated reasons for hearing the Batson striking for the seven striking the jurors. seven African-American jurors. They plainly African-American did not, every as is clear from below, other court’s I will majority’s As demonstrate the issue, discussion of the from analysis the of the Batson relies State’s issue on a mis- premise appeal. Respondent’s own brief in this taken the actual reasons for —that (“The prosecution challenged the Br. at 13 never strikes were before the state tendered judge trial, trial con- during any and that those reasons were ‘race-neutral’ reasons at nor federal.”).1 accepted by sidered and him. To con- appellate proceeding, the state Respondent's emphasized point The brief further the as follows: prosecutor proceeded to the address at the Batson hear- when What the did offer State majority now misconstrues ing, and what the of five of the seven the characteristics Afri- n for the the race-neutral reasons as State’s individually, jurors he was not can-American strikes, for the possible explanations were true purporting reveal the State’s reasons record challenges apparent were the striking jurors; he was those instead for proceeding itself. The State of the voir dire offering apparent which are from “reasons hear- judge trial at the Batson argued the justify record which the State’s chal- the appar- possible explanations, if ing that such against minority jurors.” lenges these Id. record, be ent from the could considered view, then, prose- In the own its State’s prima stage case even the facie before the pretext the never crossed the line into cutor its rea- articulate true State finds, majority now stage, as the because the According to any for individual strike. son prosecutor argument focused entire State, explanations possible the those facie requirements prima case. the judge whether should relevant Indeed, argu- prosecutor concluded pur- an inference of discrimination for draw hearing by requesting at the ment poses prima facie case. See Batson prima find case judge that the trial facie “in Hearing (prosecutor argues Tr. at here. Id. at 26.3 in the circumstances determining whether or not defendant prima made facie the trial out out, responding majority points theAs may any apparent reasons consider prosecutor’s argument, Mahaffey’s minority prosecutor’s challenges against" have counsel intimated State jurors.”).2 “apparent those are Yet reasons” merely argue more than absence done distinguished be actual State’s suggesting Yet prima facie ease. after reasons, which, pointed as the out al- may have into prosecutor crossed line years ago hearing most eleven explanation stage, defense counsel ob- court, in its to this have now confirms brief assump- this is done on the served “[i]f (“Since id. at never been revealed. See ... [has] facie case tion even made a defendants significant I think that is a presented, then issue, case there is no further Otherwise, much of what he said concession. inquiry why ... need into we exer- did.”). Thus, your Honor has found challenges our review after cised deserves quite hearing, prosecutor explained Court itself made clear in its 2. Later District opinion, any explanations giv- which had been that: prosecution en were "directed to ex- justifications for certain cases the some [I]n challenges” during plaining pattern used peremptories apparent will not be selection, attempting than rather transcript court, from the selection. Howev- proffer reasons er, it has cases that the been held in such premature peti- have to would due prima prima to defendants did fail make out a facie tioner’s obvious failure to establish a fact, transcripts of discrimination. since the' case where the case of discrimination facie dire, prosecutors original time of the voir .the per- that most but not all of the State's show steadfastly have to tender "race-neu- refused challenges clearly justified by emptory were explanations challenges tral” for their until apparent in the record. facts which were petitioner prima a case had demonstrated facie effectively argued at 14-15. State thus Id. at Supreme of the discrimination. Even Illinois hearing it to the Batson that was not any explanations” "apparent for Court found possible if the for the strikes reveal true reasons challenges the Slate’s were “relevant circum- apparent explanations weire from the record that which a trial consider when stances court prima negate of a. to the existence facie served determining prima a case of discrimina- facie case. Mahaffey, 539 at tion.” N.E.2d 1184. (additional omitted). for Id. citations Counsel court, Judge Zagel took the same 3. In the district argu- point at the State then the oral reiterated prosecutor's the arguments at Batson view of the ment, assuring prosecutors that nev- us history the case, hearing: prosecutors to “In the elected long case their er the of this offered prima dispute showing the facie case striking African-Amer- true reasons for the seven though they explicitly deny basing challenges did view, majority's explana- jurors. my ican the explanation offer on race. The detailed did they simply position tion for State's not com- the does explaining pattern of chal- directed to the port ante n. with the record here. See at 678-79 Mahaffey, lenges." out, prima majority points case.” Id. 26-27. Later in Judge facie the Hett then hearing, provided that defense counsel reiterated detailed oh the observations dire, before the court was whether a issue voir which led him to conclude that shown, “[sjimilar prima types people case had been and counsel also on facie were prima if jury- people twice facie case were stated All of who were ex- found, Mahaffey would then in more people address were to cused similar who were possible explanations prosecu- detail chosen. The Whites were excused were (“As tor had offered. See id. at 28 far as the to similar the Blacks excused.” who'were Id. details, specifics respond my assertion, and the we will if Contrary colleagues’ at 51. to ease.”) your however, prima Honor finds a facie & id. Judge suggested Hett never (“And respond prosecutor at 36 we wish to would offered the State’s race- had. strikes, grounds your each of those if Honor finds neutral for the nor reasons did he case.”).4 prima was a there facie And assessing ever indicate he was whether argument by asking counsel concluded his pretext reasons those were for discrimina- judge the trial find 680 (“Judge tion. ante at Hett consid- Cf. prosecution’s satisfied burden under Batson of estab- ered detail the lishing prima facie justifications, analysis case discrimination: his own conducted re- garding any justifications whether these your

The matter Honor at this time pretextual, were and concluded Mahaf- seems to be whether the fact that all discrimination.”). fey had not shown racial by per- Blacks were excluded the State on Rather, pattern concluded emptory challenge there were of strikes and the information revealed try defendants, Blacks on the Black the record of the dire jury voir that an prima have at least established a inference of discrimination should not be entitling ruling by your facie case to a us drawn these circumstances: Honor an evaluation and consideration grounds on the and a decision.... So we Looking totality circum- your would ask Honor at this con- time to I stances do not believe that there has clude has showing prima there been a of a aprima showing been a showing, facie facie case and therefore the challenges the State [its] exercised' in a demonstrate there been neutral manner that showed racial discrimination. grounds jurors. removing They treated both the Blacks and the Id. at 36. being Whites who were excused way. apparent Having arguments heard the same It in the of both sides record they prima on the used issue the same factors that found the state Whites, trial judge proceeded again as to Blacks. address that issue alone. The court thus made no mention Hearing Judge Tr. at 54. Hett defense request given counsel’s that he be therefore concluded that had failed opportunity respond in more detail to carry establishing prima his burden of race-neutral reasons offered the State facie case under Batson. at 55. Id.. if a Judge facie case found. Hett began analysis by reciting appeal, elements On the Illinois Court af- Batson, making facie case Judge under it regarding firmed Hett’s conclusion abundantly case, clear that he was considering prima of a absence facie and nowhere only aspect equation. that my colleagues Batson As that court suggest, did now my 4. According colleagues majority, negate prima in the the of a existence facie case be- Mahaffey's the "argued counsel that at least some of jurors cause white with similar characteristics prosecution's justifications asserted opinions permitted and had been to remain on pretextual.” Ante at 677. With the re- utmost jurors the while African-American however, spect, again disagree. I It is opinions those had been ex- characteristics counsel, transcript clear like the that defense text, cluded. Id. at .As 29-36. I noted the prosecutor, only argued the what the exist- moreover, judge twice the trial that told ing jurors. revealed the record about stricken respond pretext question he would further on the possible expla- Defense counsel the asserted that prima if a facie case were found. pointed by prosecutor nations out not the did here, presumption where it conclude, judge made a invoke such had that the trial essentially finds that the Illinois courts were on the ultimate issue discrimina finding fact, supreme aspect ex court confused about which tion. In the state themselves rejected Mahaffey’s actually pressly three-part equation they assertion the judge when relied dealing had erred with. How can the federal the trial were' courts, “apparent explanations” the strikes possibly presumption the of cor- afford prima facie case by the finding offered to a court the rectness state court doing, highest In so Illinois’ stage. purport did state courts themselves hearing much record, the record of the Batson read As I make? read the the state courts today. differently my colleagues than do only to make found failed Supreme Illinois said that “rather Court discrimination, and prima out a facie ease of explanations’ for relying ‘apparent than liberty I not think we are at almost eleven do merely trial challenges, court years simply later to recast the issue because the characteristics of the stricken reviewed may find state courts’ conclusion inde- jurors heterogeneity. to determine their on this fensible record. which a is a relevant circumstance This trial. II. pri- determining when court consider People facie case ma discrimination.” only issue Having demonstrated 366, at Mahaffey, 132 539 N.E.2d Ill.Dec. courts, by the decided Illinois and therefore Evans, 50, (citing People v. 125 Ill.2d only today, was properly issue before us 1360, 790, N.E.2d 125 Ill.Dec. prima facie whether established a (1988), denied, cert. 490 U.S. S.Ct. discrimination, I must case of conclude (1989)). 3175, The Illinois 104 L.Ed.2d of discrimi he did. Unlike the ultimate issue rejected considered Supreme Court thus intent, natory question as a factual today’s very premise majority opin (see Batson, review entitled deferential the line at ion—that State had.crossed 21, 1712), at 98 n. 476 U.S. by stage offering its prima facie case preliminary question of whether a fa- strikes, explanations for the race-neutral presents a mixed case been shown cie explana trial had found those (see, e.g., law fact question of United non-pretextual. ante tions valid (1st Bergodere, 40 F.3d States Cir.1994), (1995); view, United articulating contrary my col- (2d Alvarado, judge’s inform state leagues us that the States Cir.1989), grounds, on other 497 U.S. finding on the ultimate issue discrimina- vacated (1990)), presumption of correct- tion is entitled to a (ante 679-80), appellate I courts should certainly which is true which submit the ness Although our sister finding actually been de novo. some of such an ultimate review however, clearly erroneous explained, have utilized As have circuits made. (see question of that Illinois their review finding ever was made standard such cases)), I (citing Bergodere, more 40 F.3d at 516 in this I therefore find it courts case.5 deci- Supreme Court’s recent majority would beliéve that than a bit ironic that here, testimony interpreter's finding translation of no such was the official Because made York, given Spanish. be Id. There that would cannot be likened to v. New case Hernandez prosecutor no doubt in 114 L.Ed.2d thus Hernandez 500 U.S. explanations, and plurality of had offered race-neutral where a every recognized case court to case moot once consider found the issue Court My so. 111 S.Ct. 1859. prosecutor rea- he had done Id. had offered race-neutral here, contrast, majority colleagues juror challenges. two in the ante at 679. sons for Cf. history judges in the prosecutor immediately two extended volun- arc striking concluded that two this case his race-neutral reasons for teered finding provided explanations and that a jurors objection was were prospective a Batson after 356, Hernandez, issue of discrimina- was made on the ultimate U.S. at 111 S.Ct. raised. 500 short, Hernandez, Indeed, support does specifically in prosecutor stated tion. prima bypass fa- majority's Batson’s Hispanic jurors decision to he had the two that excused stage they accept here. cie case in the he was would circumstances because uncertain 692 States, v. United 517 ber of own

sion in Ornelas U.S. face. That strikes me 1657, 690, 134 911 fairly compelling S.Ct. discrimina points de novo tion, in the direction of- review. prima stage, least facie case question The of whether an inference of dis yét where the has not may be drawn' from a set of crimination articulate its reasons for strik undisputed relating to the racial facts make ing jurors. the African-American An infer prosecutor’s up jury of the venire and ence of particularly appro discrimination is is, challenges peremptory exercise of like the believe, priate, light Supreme in of the probable question in cause before Court Court’s admonition we be Ornelas, appellate over which the courts one mindful fact “peremptory chal degree a of control that should exercise a lenges jury practice constitute selection clear error standard would not afford. Id. at permits ‘those to discriminate who are of ” Ornelas, 697, 1657. As in 116 S.Ct. factual tomind discriminate.’ 476 U.S. at context, recur in scenarios will this and de S.Ct. 1712 (quoting Avery Georgia, novo review would allow for measure of 562, U.S. 73 S.Ct. 97 L.Ed. 1244 consistency in the treatment of similar factu (1953)). Court Batson em settings, permitting al rather than different phasized an inference of discrimination judges reach inconsistent conclusions may prosecutor arise where the makes a on prima about the facie case the same- or pattern against of strikes African-American 697-98, 1657; Id. at similar facts. jurors. Id. at 1712. I submit (“This Mahaffey, is not cf. pattern plainly that such a is evident in the Judge say Hett not have could decid here, juror challenges where the way, question ed the the other but on this prosecutor every excused each and African- record, participation given jury in the jury American member venire. See selection, judgment there was no (7th Gramley, McCain v. permissible.”). case was Ulti Cir.1996) (inference of discrimination be however, mately, I find, the standard of re only drawn there are “where a few members largely question point, view beside panel of a group racial the venire and one even if more deferential standard were them”), party each strikes one of cert. de applied, Judge I would have conclude that nied, -, U.S. clearly Hett erred in finding that no infer (1997); Sowa, L.Ed.2d 482 United States ence of discrimination arise from would (“The Cir.1994) 34 F.3d govern facts and circumstances here. easily ment made its facie case that course, I recognize, of that Batson re- peremptory challenges were motivated quires that we look to all the relevant facts race; by every venireperson each and black assessing circumstances in whether an challenged.”), [six was all] inference of discrimination should arise. See Batson, 476 U.S. at 1712. Yet S.Ct.. (1995); Clark, Splunge mogt by important far the factor (7th Cir.1992) (prima facie case shown where and one that I believe the Illinois courts were both African-American jury members overlook, quick too all seven Afri- prosecution). venire were excluded jury can-American members of the venire forget, And lest we the crimes at State, issue were meaning excused that not obviously raeially-sensitive— case were single of Mahaffey’s member own race was Mahaffey, young seated on African-American that decided his male fate.6 side, Chicago’s charged This is therefore not n in which South case was one murdering couple side, two of a particular group members racial a white on the North attempting excused while and with other members of their young murder remained; group same racial it is son. This instead a is therefore a case in which the case where the State seven of racial composition potential- exercised thir- could teen total challenges every ly to exclude mem- jury might respond be a factor in how the 6. There course an African-American al- did not deliberate the verdicts either at the trial, through Mahaffey’s ternate penalty phase. who sat but she conviction or trial, whites as unaffected the fact that some well defense as-to capital arguments mitigation may the the same also have been characteristics Chrans, all sentencing phase. excused —the still struck the Afri- Williams State (7th Cir.1991), 943-45 retaining some of can-Americans while the whites, despite having strikes available ' judgment Before the that went úhused. jury in essentially ease is all-white this short, showing I made believe executed, least I- that State at believe hearing Batson was suffi- explain why required should it excused be require cient as a of law to the State matter race. person each venire own explana- to come forward with race-neutral Judge I am to-the fact that Hett sensitive challenged strikes. tions for each of the We present during jury voir dire case to should remand this therefore view, all of relevant facts district court to enable the State do so produce an inference circumstances did now. Judge Yet came to of discrimination. Hett only comparing sev- after conclusion whom the ex- en African-Americans State III. six jury cused 'the with the whites who from Jerry Mahaffey The crimes of which judge The state similarly were excused. horrific, stands convicted are indeed essentially that because the excused found jury’s certainly supports the conclu- African-Americans and excused whites perpetrator was a sion characteristics, an had similar inference doubt, moreover, crimes. those I have should not be drawn from the discrimination conclude, jury as an Illinois could this decision to strike African-Americans. .that did, jury deserved death Hearing Tr. at But than rather penalty But how I I consequence. as wish comparing the excused African-Americans to jury making whites, were confident that those judge I think the trial excused selected, in a constitution- decisions been comparing the Af- should have been excused remained, simply al manner. I cannot be confident on to the whites who rican-Americans only comparison through for such could the record.. played any whether race role assess ' The State of Illinois should once and for all challenges. If an Afri- the State’s excused true reason be to articulate its juror had characteristics and can-American striking each seven African-American to those opinions that were similar of a white persons ultimately venire sat, example, juror then obvious judgments. As the rendered those inference, prior to the at least articulation of concedes, never done so itself it has strike, explanation for the history nor extended racially-moti- would strike was be that the legitimacy ever of those court assessed vated. As far as the voir dire record would under of Batson. The reasons the dictates reveal, juror’s face the stricken would be the contrary, majority’s as I conclusions distinguishing the characteristic Afri- demonstrated, are without believe have white re- from the who was can-American support in court record. the state significant regard it tained. I find hearing Judge Hett found at the Batson reasons, respectful- all of I most For these Mahaffey’s jury sat on the whites who ly dissent... to the African-Americans the similar finding at 51. That State had excused. Id. that the African-Americans

indicates to me singled venire

out, they may have been different- treated

ly char- than whites with same similar And the inference discrimina-

acteristics. in that

tion would arise: circumstance notes (which jury, prior knowl- on the spanned tance to serve script dire voir All of these of the Pueschels’ murders. edge along copies days), seven stated, justifications, prosecution jurors. prospective all of the cards for and white Judge to strike both black analysis, been used explaining own detañed

Case Details

Case Name: Jerry Mahaffey v. Thomas Page, Warden

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 6, 1998

Citation: 151 F.3d 671

Docket Number: 97-4137

Court Abbreviation: 7th Cir.