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United States District Court, Northern District of Illinois, E.D

March 7, 1983


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


This case comes before the court for ruling after an evidentiary hearing on petitioner Larry Cosey's petition for writ of habeas corpus. The historical facts giving rise to this hearing have been recounted in several published opinions (discussed infra), and will not be repeated in detail.

Petitioner was tried along with a co-defendant, Ernest Van Johnson, in the Illinois Circuit Court for attempted murder, aggravated battery, and armed robbery. The victim, Michael Lightfoot, testified that he was attacked by the defendants in the basement of petitioner's home during the early morning hours of November 6, 1977. Lightfoot's testimony constituted the crux of the prosecution.*fn1 The Court, hearing the case without a jury, convicted petitioner on all counts and sentenced him to 20 years imprisonment.

Petitioner's sole contention in this proceeding is that the lawyer who represented him at trial, Joseph (J.T.) Stillo, was incompetent for failing to investigate and call five witnesses who could have impeached Lightfoot's version of the facts. These witnesses would have testified as follows:

  Cosey's step-father would have testified that he was
  on the first floor of the house on South Euclid
  Avenue where the assault was said by Lightfoot to
  have taken place, that he heard no unusual noises
  coming from the basement in the early morning of
  November 6, that he observed the basement the next
  morning and that its condition was as it had been the
  previous evening. R. 64-65. Cosey's mother would have
  testified similarly as to the

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

United States ex rel. Cosey v. Wolff, 526 F. Supp. 788, 790 (N.D.Ill. 1981).

On direct appeal, the Illinois Appellate Court rejected Cosey's argument, reasoning that "we are unable to conclude that counsel's representation amounted to no representation at all or reduced the court proceedings to a farce." People v. Cosey, 82 Ill.App.3d 968, 973, 38 Ill.Dec. 425, 430, 403 N.E.2d 656, 661 (1st Dist. 1980). The Illinois Supreme Court denied leave to appeal, and the United States Supreme Court refused Cosey's petition for a writ of certiorari. Cosey v. Illinois, 449 U.S. 1115, 101 S.Ct. 928, 66 L.Ed.2d 845 (1981).

Petitioner then instituted proceedings in this Court for a writ of habeas corpus. Judge Milton I. Shadur initially heard the case and granted Cosey's motion for summary judgment. Judge Shadur held that the Illinois Appellate Court's use of the "farce or sham" standard was "error of constitutional dimension. That criterion was specifically rejected by our Court of Appeals in favor of a `minimum standard of professional representation' some six years ago in United States ex rel. Williams v. Twomey, 510 F.2d 634, 640-41 (7th Cir. 1975), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975)." United States ex rel. Cosey v. Wolff, supra, 526 F. Supp. at 790. Judge Shadur further found that Cosey had in fact been denied representation of a minimally professional nature:

  But counsel's fatal flaw was his absolute failure to
  present any affirmative evidence at all on behalf of
  his clients, evidence that clearly existed in this
  case. Many cases in this Circuit and others have
  disallowed claims of ineffective assistance of
  counsel because, in essence, losing criminal
  defendants have merely second guessed the strategy or
  tactics of their defense counsel. But in this case
  counsel's presentation of no evidence can hardly be
  defended as "strategy" or a "judgment call,"
  incorrect only in hindsight. It can scarcely have
  been a conscious decision made after examining both
  sides of a close question with the skill of the
  experienced practitioner.

Id. at 791 (citations and footnotes omitted).

The Seventh Circuit Court of Appeals, noting that "[s]tate habeas cases rarely are proper cases for summary disposition in granting the writ," reversed. United States ex rel. Cosey v. Wolff, 682 F.2d 691, 693 (7th Cir. 1982) (per curiam). To the Court, the question of competency — "a mixed question of fact and law" — was "not so clear." Id.

  The district court could not say as a matter of law
  that the failure to call the witnesses showed
  incompetence. For instance, as the Illinois Appellate
  Court pointed out, three of the potential witnesses
  (Cosey's mother, his stepfather, and the co
  defendant's girlfriend) were biased because of their
  relationship to the defendants. Also, counsel may
  have believed that the witnesses' testimony would be
  false. Other legitimate explanations for the failure
  to call the witnesses might have become evident at a
  hearing. Therefore, there is a material question of
  fact as to whether the failure to

  call the witnesses was a matter of trial strategy,
  and respondents are entitled to a hearing on this

Id. at 693-94 (citations omitted). The Court of Appeals also found that it was not clear whether Stillo was even aware of the existence of the five witnesses prior to trial. If he was not, "and if the lack of knowledge was not due to counsel's failure to adhere to the constitutional standard of competence, counsel was not constitutionally ineffective in not calling the witnesses." Id. at 694. Finally, the Court indicated that a hearing was necessary due to concerns of basic fairness: "The targeted counsel, if at all available, should be called and given the opportunity to meet and refute the serious charges made against him. Fairness demands both sides be heard." Id. at 693.

Pursuant to Circuit Rule 18, the case was reassigned to this court for purposes of conducting the evidentiary hearing on remand. In accordance with the Court of Appeals' mandate, the hearing was designed both to give Stillo an opportunity to meet the serious charges asserted against him, and to resolve the fact questions still outstanding.

Two witnesses were called, petitioner and Stillo. Petitioner testified that he and his co-defendant, Johnson, informed Stillo of the witnesses' existence soon after the lawyer was retained.

Stillo, called by respondents, did not refute this assertion. He testified instead that he could not find his file and that as a consequence he did not have his notes of his interviews with Cosey and Johnson. Stillo further stated that he had no independent recollection of the conversations described by Cosey.*fn2 He did not deny, however, that he did not interview the five potential witnesses. Nor did he claim to have viewed the premises where the victim said the attack occurred.

Stillo described his defense strategy. Early in the case he formed the opinion that the State's case was weak. The prosecutors believed so, and told Stillo. Moreover, Lightfoot was a drug dealer and a drug addict, and consequently, under Illinois law, the trier of fact would view his testimony with skepticism. Lightfoot had also told prior inconsistent stories to the police and was thus subject to impeachment on this ground as well. Finally, Lightfoot visited Stillo prior to trial and offered to drop charges in exchange for money. (Stillo immediately reported this fact to the prosecutors, but made little, if any, effort to get it into the record during the criminal trial.) Stillo concluded that the State would not be able to prove a prima facie case.

At trial Stillo effectively cross-examined Lightfoot,*fn3 but at the close of the State's case Cosey's motion for a judgment of acquittal was denied. Faced with this unexpected development, Stillo "changed his strategy,"*fn4 and called the defendants to the stand. One of the five witnesses who could have challenged Lightfoot's testimony, Cosey's mother, was in the courtroom and was therefore available as a defense witness. But Stillo did not call her. Nor did he seek a short continuance so as to investigate and secure the other witnesses.

On the basis of the foregoing testimony, this court finds that: (1) Stillo learned of the existence of the five exculpatory witnesses well before trial; (2) Stillo made no effort to investigate or interview these witnesses; (3) Stillo reasonably believed his clients would be acquitted at the close of the State's case; and (4) Stillo failed to explore the possible use of the suggested witnesses because of his confidence in his ability to win a motion to acquit. Stillo did not explicitly articulate the latter point, but this is the only "strategy" consistent with his testimony and with what he actually did.*fn5 The question to be resolved is whether, under the circumstances, it was permissible for Stillo to reject the proffered witnesses out-of-hand — without even interviewing or investigating them — on the basis of his evaluation of the State's case.

This issue differs from that addressed by the Seventh Circuit in reversing Judge Shadur. The Court of Appeals was concerned that Stillo had been libeled unfairly; on the assumption that Stillo had in fact learned of the witnesses prior to trial, the Court indulged the belief (for purposes of reviewing a grant of summary judgment) that Stillo had investigated the witnesses and had concluded for quite legitimate reasons not to use them. But the evidence adduced on remand makes clear that Stillo reached no such judgments. Stillo did not take even the first step of interviewing the five individuals. His complete indifference prevented him from obtaining "sufficient information, although available, on which to base an intelligent decision." United States ex rel. Lee v. Rowe, 446 F. Supp. 1039, 1047 (N.D.Ill. 1978). Stillo's error was more fundamental and egregious than the Court of Appeals had assumed:

  Whereas a strategy chosen after full investigation is
  entitled to almost automatic approval by the courts,
  a strategy chosen after partial investigation must be
  scrutinized more closely in order to safeguard the
  rights of criminal defendants.

Washington v. Strickland, 693 F.2d 1243, 1255 (5th Cir. 1982) (Unit B en banc); id. at 1283 n. 13 (Johnson, J., concurring in part and dissenting in part) ("[F]or the strategy to be reasonable, the assumptions upon which it is based cannot be formed with no investigation at all.")

Nevertheless, questions of attorney competence cannot be resolved in the abstract. "Much depends on the nature of the charge, of the evidence known to be available to the prosecution, of the evidence susceptible of being produced at once or later by the defense, and of the experience and capacity of defense counsel." United States ex rel. Williams v. Twomey, supra, 510 F.2d at 639. Careful consideration of these factors reinforces the conclusion that Stillo's conduct fell well below minimum professional standards.

First, petitioner was on trial for extremely serious charges. Much was at stake, and Stillo's willingness to run risks should have been at a minimum. A significant period of incarceration loomed likely if counsel's assessment of the strength of the State's case turned out to be incorrect. Contingency arrangements, if at all possible, should have been arranged.

Examination "of the evidence known to be available to the prosecution" buttresses this conclusion. While it is conceded that Stillo had reasonable grounds for believing the State's case would fall of its own weight, the issue was nevertheless not free from a significant amount of residual doubt. The prosecution had in its favor eyewitness testimony directly implicating Cosey. Moreover, there were at least plausible grounds upon which to justify Lightfoot's prior inconsistent claims. See People v. Cosey, supra, 82 Ill.App.3d at 974-75, 38 Ill.Dec. at 431, 403 N.E.2d at 662. In all but the most exceptional cases, counsel for the defense cannot predict with a great degree of confidence that a motion to acquit will be granted at the close of the State's case. Cosey's prosecution was not so exceptional as to fall outside this general rule.

Thus, by gearing his efforts solely towards winning a motion to acquit, Stillo subjected Cosey to a significant risk of lengthy punishment.*fn6 This fact, of course, is unexceptional standing alone. Some criminal defendants have cases that are so weak that a formidable line of defense cannot be devised "no matter how dazzling the defense lawyer." Wade v. Franzen, 678 F.2d 56, 59 (7th Cir. 1982). But here, Stillo simply ignored additional "evidence susceptible of being produced at once or later by the defense" that appeared, at least on its face, to be capable of drastically improving Cosey's position. Cosey and Johnson identified early on the witnesses who could refute Lightfoot's assertions. Furthermore, there is no suggestion that these witnesses were difficult to find; three were closely tied to the defendants; a fourth had been a tenant in the building in which the assault allegedly transpired; and the fifth had a known business address. Defense lawyers are not obligated to search "for the legal equivalent of a needle in a haystack." United States v. Decoster, 624 F.2d 196, 211 (D.C.Cir. 1976) (en banc) (opinion of Leventhal, J., joined by McGowan, Tamm, Wilkey, JJ.). But neither may they completely ignore easily obtainable information that appears to be of significant value when the risks of proceeding without such information are substantial. Gomez v. Beto, 462 F.2d 596 (5th Cir. 1972) (per curiam). See generally United States ex rel. Lee v. Rowe, supra, 446 F. Supp. at 1048 (N.D.Ill. 1978) ("[W]here minimal investigation into facts which were already known by defense counsel could have disclosed a viable insanity defense," defense counsel committed constitutional error by failing to investigate.). Cf. United States v. Harris, 558 F.2d 366, 370 (7th Cir. 1977) (claim of incompetency rejected in part because there was no "basis for defendant's assertion that trial counsel failed to even investigate the possibility of [exculpatory] witnesses.").

This court simply can perceive no acceptable justification for Stillo's behavior. Investigation of the five witnesses would hardly have prevented counsel from pursuing his preferred course of action:

    Implicit in the district court's acceptance of the
  State's unsupported and merely speculative theory of
  why defense counsel acted as he did in declining to
  subpoena or call presumably available witnesses
  prepared to give important exculpatory testimony is
  the unstated assumption that a choice was forced
  between using their testimony or relying on the
  anticipated weakness of the State's case. But of
  course no such either/or choice was presented.

    So far as the record shows, the witnesses could
  readily have been subpoenaed and made available for
  calling if the course of trial dictated that
  strategy, with the decision being reserved pending
  presentation of the State's case. Had that been done,
  with the decision being then made not to use these
  witnesses, a quite different question of deliberate,
  though possibly unwise, trial strategy as against
  simple neglect would have been presented to the
  district court.

Sneed v. Smith, 670 F.2d 1348, 1354 (4th Cir. 1982) (per curiam) (emphasis added). The present case verges on "simple neglect." Stillo made absolutely no effort to investigate the five witnesses, though a minimally competent attorney would have perceived a need at least to investigate and assess such potentially promising evidence. There are undoubtedly cases in which a primary line of argument is so open and shut that an attorney may justifiably conclude that suggested fallback positions, even the most formidable, are unnecessary and need not be explored.*fn7 However, this is not such a case. Attorney Stillo's prior experience notwithstanding, petitioner was denied the assistance he was due, the assistance of a minimally competent advocate.

It must be stressed that this court is not second-guessing Stillo's decision to argue misidentification, i.e., that Cosey played no part in the assault upon Lightfoot. What this court finds inexcusable is the grossly inadequate manner in which Stillo investigated available evidence supporting the defense's theory of the case. The Fifth Circuit faced a nearly identical situation in Gomez v. Beto, supra. In that case, a defendant was charged with a crime occurring in Houston, but claimed he was in San Antonio on the day in question. To bolster his alibi contention, the defendant gave his attorneys the names of several individuals who could allegedly corroborate the defendant's whereabouts. However, due in part to a belief that "the state's evidence was too slight to result in a guilty verdict," id., 462 F.2d at 597, the defense attorneys "made no effort to contact these witnesses despite the fact that they knew [the defendant] faced a mandatory life sentence if convicted." Id. The Court of Appeals wasted little time in finding counsels' performance inadequate:

  When a defense counsel fails to investigate his
  client's only possible defense, although requested to
  do so by him; and fails to subpoena witnesses in
  support of the defense, it can hardly be said that
  the defendant has had the effective assistance of

Id. The same conclusion must follow here. Each of the factors already discussed — the significant risks Stillo ran by relying solely upon a motion to acquit, the probable value of the suggested witnesses, the ease with which they could have been investigated, and the congruity between such an investigation and Stillo's overall strategy — all argue for such a result.

Alternatively, even if Stillo's initial failure to investigate the witnesses can be excused, his behavior at trial certainly cannot. For once the motion to acquit was denied, Stillo knew his primary gambit had failed and that contingency arrangements were needed. Yet even then he did not seek a continuance to investigate the witnesses, one of whom was present in court. Stillo simply put Cosey — an individual who was "vulnerable because of his prior criminal record," United States ex rel. Williams v. Twomey, supra, 510 F.2d at 640 — on the stand.*fn8 Counsel did not render constitutionally adequate services. Id.

What has been said thus far further indicates that Cosey has surmounted his "initial burden of demonstrating a likelihood that counsel's inadequacy affected the outcome of the trial." United States v. Decoster, supra, 624 F.2d at 208, cited with approval in Wade v. Franzen, supra, 678 F.2d at 59;*fn9 see generally Cooper v. Fitzharris, 586 F.2d 1325, 1340 (9th Cir. 1978) (en banc) (Hufstedler, J., concurring and dissenting) (In holding that an attorney's performance was constitutionally deficient, courts often subsume a finding of prejudice.) To begin with, a constitutionally competent attorney would most likely have decided, following an adequate investigation, to call the suggested witnesses. What evidence there is in the record indicates that their testimony would have been extremely relevant and promising. Indeed, Stillo himself recognized (in closing argument) the importance of evidence bearing on the condition of the basement immediately after the crime allegedly took place.*fn10 Furthermore, while it is true that three of these witnesses were subject to charges of bias because of their ties to the defendants, this factor did not render them useless per se. Two non-related witnesses were in any event also proposed. This court may not abandon the record (which is barren due to Stillo's failure to investigate), and hypothesize reasons why the suggested witnesses might not have been used even if Stillo had discharged his investigatory duties. Sneed v. Smith, supra, 670 F.2d at 1354. The indications, in the record that these witnesses would most likely have been called have not been dispelled.*fn11

It is further likely, as Judge Shadur has persuasively argued, that the introduction of this testimony would have tipped the scales in Cosey's favor:

    As for step two of the necessary inquiry, it is
  clear enough that Cosey was prejudiced by his
  counsel's failure to present affirmative evidence.
  Lightfoot was the state's major witness. His
  testimony was at best somewhat inconsistent on a
  number of key portions of his story. Production of
  five witnesses on behalf of Cosey could well have
  affected the trier's perception of Lightfoot's
  credibility. It might well have altered his view of
  Cosey's credibility (the trial judge doubtless
  assumed from Cosey's lack of a case that there were
  no other witnesses able to corroborate his story at

    Indeed, testimony from the five witnesses could
  well, by strengthening the defense's overall case,
  have affected the trial judge's ultimate
  determination in ways difficult to predict. One
  example may suffice. Much of the non-proffered
  testimony stated that the basement's condition was
  the same before and after the events described by
  Lightfoot. That may have led the trial judge to
  examine more skeptically the fact that the state
  produced no physical evidence — bloodstains,
  fingerprints, or anything else — from the basement
  tending to corroborate Lightfoot's story that a death
  struggle had taken place there. Such skepticism might
  well have been the "reasonable doubt" mandating an
  acquittal for Cosey.

United States ex re. Cosey v. Wolff, supra, 526 F. Supp. at 792.

Given the foregoing analysis, respondents can prevail only by rebutting Cosey's showing of a "likelihood" of prejudice. Respondents must prove beyond a reasonable doubt that Cosey would in fact have been convicted even if Stillo had not erred. Wade v. Franzen, supra, 678 F.2d at 58-59. No such showing has been made. Before this court, respondents did little more than elicit from Stillo the weaknesses in the State's case, so as to establish the reasonableness of counsel's assessment of the prosecution. Respondents' effort cuts both ways.

For the reasons stated, the court concludes that the petition for writ of habeas corpus is meritorious. Respondents shall discharge petitioner if retrial proceedings are not commenced within 90 days.

It is so ordered.

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