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September 30, 1971


The opinion of the court was delivered by: Will, District Judge.


Petitioner is seeking habeas corpus relief under Section 2254 of Title 28 of the United States Code. He is presently on parole from the Illinois State Penitentiary at Pontiac, Illinois, where he had been serving a fifteen-to-thirty year sentence imposed on December 13, 1962, by the Circuit Court of Cook County, Chicago, after he was found guilty by a jury of the offense of murder. The conviction was affirmed by the Supreme Court of Illinois on December 1, 1966, where the same arguments advanced by the petitioner in this action were rejected. People v. Kirk, 36 Ill.2d 292, 222 N.E.2d 498 (1966). The petitioner next sought relief under the Illinois Post Conviction Act where the action was dismissed even though the petitioner sought to withdraw the petition on the ground that the decision of the Supreme Court made the issues res judicata in the state courts. An appeal from this dismissal is now pending in the Illinois Supreme Court.

Petitioner claims that certain statements made in the closing argument of the prosecutor to the jury were so inflammatory and prejudicial as to deprive him of a fair trial as guaranteed by the Fourteenth Amendment. We reach the merits of his claim and deny his petition.

At the outset, a question of great significance to the viability of the federal system must be dealt with. Are there any circumstances under which a state prosecutor's closing argument, albeit highly prejudicial and inflammatory, can deprive a defendant in a state case of fundamental rights guaranteed by the federal Constitution? A negative response would answer the question for all prospective petitioners regardless of the unfairness that might stem from a highly improper and prejudicial closing statement. On the other hand, an affirmative response might require a federal court to sit as a reviewing court of all trial errors which are generally considered to be strictly "state" questions, asking itself that most nebulous of questions — did this error, if error it be, deprive the petitioner of a fair trial?

Either categorical answer seems unacceptable. There may be a situation where the closing statement of the prosecutor is so prejudicial that it does indeed deprive the defendant of a fair trial. Is such a defendant to be left without a federal remedy? Does our system of federalism require that the federal government be strictly limited in its power to overturn decisions, even though outrageous, made in areas that have been left to the states by the Constitution? Reviewing errors to see whether or not the trial was "fundamentally fair," it can be urged, breaks down the distinction between state and federal courts.

Unaided as we are by a specific ruling either by the Supreme Court or by this Circuit, conflicting decisions of other circuits and districts must be examined to see if they provide any compelling logic. The two Circuit decisions that can be found ruling specifically on whether statements by a prosecutor to the jury involve a federal constitutional question are conflicting. In Setser v. Welch, 159 F.2d 703 (4th Cir. per curiam 1947), cert. denied 331 U.S. 840, 67 S.Ct. 1510, 91 L.Ed. 1851, it was held that the allegedly prejudicial language used by a prosecutor (there a United States Attorney) in an address to the jury is not a question that can be raised by habeas corpus. In Jackson v. California, 336 F.2d 521 (9th Cir. 1964), on the other hand, the court made a determination of whether the allegedly improper remarks of a state prosecutor did deprive the petitioner of a fair trial after acknowledging the concept that federal courts should not sit as reviewing courts of their state counterparts. In United States ex rel. Chase v. Rundle, 266 F. Supp. 487 (M.D.Pa. 1967), the court stated that "absent substantial prejudice the remarks of a prosecuting attorney in his opening statement cannot be raised by habeas corpus," and then went on to determine whether there had been "substantial prejudice."

As with most difficult legal questions, the easiest way is to follow the traditional path of a general rule with exceptions. The general rule is that federal habeas corpus is not a proper proceeding in which to attack errors that are made at a state trial. Frank v. Mangum, 237 U.S. 309, S.Ct. 582, 59 L.Ed. 969 (1915). However, if these errors are so grievous as to constitute a denial of fundamental constitutional rights, then habeas corpus may be appropriate. Sampsell v. California, 191 F.2d 721 (9th Cir. 1951), cert. denied, 342 U.S. 929, 72 S.Ct. 369, 96 L.Ed. 692 (1952); Jackson v. California, supra; United States ex rel. Chase v. Rundle, supra.

Accordingly, we accept the procedure employed by the Ninth Circuit, and examine the alleged errors to ascertain whether or not they made the proceeding so devoid of fairness that it deprived the petitioner of due process of law. In making such an analysis, alleged errors in the trial that do not relate to some specific Constitutional right in the first eight Amendments which has been "incorporated" into the Fourteenth Amendment must be so outrageous and so prejudicial as clearly to constitute a denial of due process.

In the instant petition, five statements made by the State's Attorney in his closing argument to the jury are singled out as being inflammatory and prejudicial:

  1. "What you have heard is an insult to your
     intelligence, and I think you realize that. I am
     ashamed to see twelve jurors in this box have to
     walk by this witness stand where so much filth, so
     many lies, obvious lies, have been spoken. I am
     ashamed to see that men that I have looked up to,
     professional men who I thought and I feel are
     someone I should respect for the fact that they are
     professional men, have taken the stand and, I don't
     think they were mistaken, I think they tried to
     hoodwink this jury." R-1926
  2. "I'm ashamed to see these two young defense
     attorneys taking the doctrine that Adolph Hitler,
     a long time ago, told the people of Germany. He
     said if you told enough lies and enough people
     told lies, you'd get to believe these lies." R-1927
  3. "You heard many things that were said, many of the
     questions that were asked of Maggie McMillan, who
     is sitting in this courtroom today. You heard about
     this Windy City, you heard about these threats, you
     heard a lot of filth and trash. Did they back up
     those statements as they said they were going to
     do? Did you hear anyone testify to these dirty
     statements, dirty that they brought out, that she
     was a gambler, that she was doing this and that?
     No. No you didn't hear a word of that. You also
     heard how their star standup witness, Isiaah
     Terrell, is such a wonderful man, this man who
     they have the audacity to call an officer. That
     perjurer wouldn't be qualified to sweep the floors
     of this Courtroom. And how he became a Hawk man, I
     have no idea, but I will go into that a little
     more." R-1928
  4. "I also want to apologize to the ladies and
     gentlemen of the jury for both Mr. Siet and myself,
     who forgot to ask them, as did Mr. Siet, `Did you
     get paid for your testimony?'" R-1928
  5. "The citizens of Chicago scream, we want justice.
     They scream, don't let these defendants go. They
     ask for law and order. Fortunately you ladies and
     gentlemen of the jury have a chance that many
     citizens don't have. You have a chance to show a
     community on the south side of Chicago that
     citizens who sit as jurors, don't tolerate
     senseless killing. Ladies and gentlemen, this is a
     responsibility which is in your hands. All I can do
     is ask, in the name of the ...

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