Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C. 4545 -- Susan Getzendanner, Judge.
Wood and Cudahy, Circuit Judges, and Wyatt, Senior District Judge.*fn*
WYATT, Senior District Judge.
This is an appeal by Paula Gray ("Paula"), in custody of the respondent, Director, Department of Corrections, State of Illinois, from an order of the District Court dismissing on motion a petition for a writ of habeas corpus for failure to exhaust available state remedies. 28 U.S.C. § 2254(b). Paula was sentenced on February 22, 1979, in the Circuit Court of Cook County, Illinois, after a jury had found her guilty of murder, rape, and perjury; her part was that of an aider and abettor. The sentence was imprisonment for concurrent terms of 50 years each for two murders and for rape, and of ten years for perjury.
By order filed May 6, 1982, the District Court denied motion of respondent to dismiss the petition. The reasons for the denial are said in the order to have been "stated in open court". The record does not contain any transcript of what was "stated in open court".
The District Court later changed its decision. By order with opinion filed October 18, 1982, the motion of respondent to dismiss the petition was granted on the ground that Paula had not exhausted state remedies.
This appeal followed and, the District Court having issued a certificate of probable cause, there is jurisdiction in this Court of the appeal under 28 U.S.C. § 2253.
We reverse the order of dismissal of the District Court.
On Thursday, May 11, 1978, related and revolting crimes were committed in Homewood and East Chicago Heights sections of Chicago. About five months later, three of the four men who committed these crimes and Paula, who aided and abetted them, were convicted by jury verdicts. One man was sentenced to death; one man was sentenced to life imprisonment; one man and Paula were sentenced to long prison terms. Almost five years later, the Illinois state courts and the federal courts are still dealing with these convictions. Because of Paula's perjury, one man escaped prosecution altogether.
In the early hours of May 11, 1978, a young man was abducted at gunpoint from a Homewood gasoline station where he was employed and which was robbed and looted. His fiancee, visiting him at his job, was also abducted. The two young people were taken some five miles away to an abandoned apartment, part of a housing complex where Paula and her family and Dennis Williams and his family lived as close neighbors. In the abandoned apartment, while Paula held a lighter for the men to see, the young woman was raped by Williams, Rainge, Adams, and Jimmerson; Williams then shot the young woman to death. The young man was next taken to a nearby field, with Paula in attendance. Williams shot the young man twice in the head and handed his gun to Rainge who shot the young man in the back. Williams and Paula went to a creek close at hand where Williams threw away the gun which had been used. Williams at this point told Paula not to tell the police what she had seen or he would kill her and her family.
The bodies of the victims were found on Friday, May 12. Investigation led first to Williams and Jimmerson who were arrested near the place of the murders and taken to Homewood police station for questioning. In the evening of May 12 Adams and Rainge were also questioned at the police station. They and Jimmerson were released on the same evening, to be rearrested a few days later. Williams was never released.
As to Paula, she was not subject to the death penalty under Illinois law because she was not 18 years old when the murders were committed. Ill. Rev. Stat. ch. 38, § 9-1(b). Williams, Rainge, Adams, and Jimmerson were each subject to the death penalty because they were above the age of 18 when the murders were committed.
Paula, her mother, her twin sister, and five younger brothers and sisters lived at 1525 Hammond Lane in the housing complex already mentioned. Paula not only had known Williams and his family for some time, but had also known the other three men who were shown by the evidence to have committed the crimes.
Paula and her twin sister were born June 27, 1960, and were the only children of Mrs. Gray by a Mr. Love. As recited in the presentence report: "The defendant, her sister, and the other children were raised by their mother. The mother has been on Public Aid." (Record, Volume I, p. C 62). The affidavit of Paula, made to obtain assigned counsel after her sentence in February, 1979, recites that she then had no money and no other property of any description. It is evident from the record that Paula and her family were, and for some time had been, indigent.
The record contains a report on Paula from the Cook County Office of Special Education dated September 29, 1969. This gives her Wechsler Intelligence Quotient (IQ) as 65 verbal, 57 performance, 57 full. The report states that Paula has "limited intellectual capacities in really all spheres of function [and] continues to be in need of and to remain eligible for EMH classroom placement." (EMH is understood to be an abbreviation for "Educable Mentally Handicapped"). A similar report in the record, dated June 12, 1974, shows an IQ of 69 verbal, 67 performance, and 64 full, with continued EMH classification. These figures classify Paula as mentally retarded (Stedman's Medical Dictionary 1224 (5th unabr. law. ed. (1982)).
On Saturday, May 13, Officer Pastirik and other officers went to 1525 Hammond Lane. They spoke to Paula for the first time. She was there with younger children, but neither her mother nor twin sister Paulette was at home. Pastirik told Paula that they were looking for a pair of woman's boots; she consented to a search and in a closet the officers found a pair of boots which Paula said belonged to her sister Paulette. They told Paula they were taking the boots, but when her mother returned, to ask her mother to telephone them. Paula said the Grays had no telephone. The officers then said that if her mother had any question about the boots or anything else to have her come to the police station.
At about 7:30 in the evening of May 13, Paula, her mother, Paulette, and younger brothers and sisters, came to the police station by their own chosen transportation; no police officer brought them.
Two officers spoke to Paula in an office at the station. Although she was not in custody, one officer explained to Paula her constitutional rights, reading from a card for the purpose. She indicated ("made some vague statements") that she would talk to them. (T 1054; "T" references are to pages of the stenographic transcript of the trial, which transcript includes also the suppression hearing which occurred during the trial). Paula "seemed scared" (T 1055). The officers asked her about this and she told them that "she was afraid of Dennis Williams" (T 1055-56).
The officers then left Paula, went to her mother and told her that Paula had information about the crimes but seemed frightened. The mother asked to see Paula. The officers took her to the office and left her alone with Paula. Some minutes later the officers went back to them and "Mrs. Gray said that Paula would cooperate" (T 1058). Mrs. Gray stayed with her and "kept saying [to Paula] to cooperate with the police" (T 1059). The officers asked who was there when the crimes were committed and Paula gave them the names of Williams, Adams, and Rainge; later she gave them the name of Jimmerson.
Meanwhile, Officer Pastirik had been talking to Paulette in another office. After a discussion, Paulette told the officer that Paula did know about the crimes, that Paula was present when they took place, and that Paula had told her (Paulette) about them on Thursday morning, May 11, about eleven o'clock, some seven or eight hours after they had occurred.
Pastirik then went with Paulette to the office where Paula and her mother were with the other two officers, who left. Pastirik, Paula, her mother, and Paulette remained. Paulette explained that she had told Pastirik "what happened, who shot them. I told him everything" (T 1219). She urged Paula: "for Mom, for everybody tell them everything" (T 1219). Then Paula told Pastirik "everything"; "Paula ran down the entire incident to me at that time" (T 1219). The information Paula told Pastirik was to become her testimony before a grand jury a few days later on May 16.
Mrs. Gray, the mother, confirmed that at the police station on May 13 she had told Paula "not to worry and just tell the police the truth" (T 1177). Paula herself admitted that her mother had told her "to trust the police and to tell them the truth" (T 978, 979).
About midnight May 13-14, Paula and three police officers went to the scene of the crimes. They looked at the apartment where the young woman had been raped and killed and Paula pointed out where the victim had lain. Paula showed them another empty apartment where she had been when she saw the arrival of Williams and others with the victims. Paula walked with the officers to the creek near where the young man was shot and Paula pointed out where Williams had thrown the gun into the water. They then returned to the police station.
While the officers were with Paula on the trip to the scene, she described the crimes to them. As to the disposal of the gun, one of the officers testified to what she said: "She explained that Dennis Williams took her to the creek to throw the gun in. Dennis held her by the hand real tight and made her go to the creek" (T 1085).
In the early hours of Sunday, May 14, a State's Attorney, DiBenedetto, arrived at the police station. About 3:00 a.m. he talked to Paula, her mother, and Pastirik in an office. Paula described the crimes to DiBenedetto and (again) to Pastirik, after which they left Paula and her mother. At about 7:30 in the morning of May 14, Sala (a police officer) drove Paula, her mother, and DiBenedetto to the Gray apartment in East Chicago Heights. They went into the nearby apartment where the young woman was killed but Paula seemed tired and the officers suggested that she and her mother go to their home and sleep, which they did.
Paula and the Gray family had no further contact with the police investigators until late Monday afternoon, May 15, when Paula met with State's Attorney Johnson, State's Attorney Hardiman (a woman), and police investigators. Johnson was the senior and the coordinator. Paula appeared frightened and said that "she was afraid for the safety of herself and her family" (T 1158). The State's Attorneys told her that their office could protect her and her family and could relocate them. They told her of her rights, including the right to counsel and that if she could not afford a lawyer, they could get one for her at the County's expense. They told her that she appeared herself to be involved in the crimes. Paula then told again how the crimes took place and who committed them. When she had finished, Johnson told her that he believed, from what she had said, that she was in jeopardy in the community where she lived from relatives of Williams, Jimmerson, Rainge, and Adams (all of whom by then were in custody). Johnson suggested that the State "put her up for the night" and thus "isolate her from that community" (T 1261). Johnson explained that he expected to have time the next morning before a grand jury and that he wanted Paula to repeat before the grand jury what she had told him about the crimes. Paula agreed that perhaps it would be best for her not to go back into the community at that time and to be put up overnight by the State. This was done, and it was arranged for her to stay the night of May 15 at the Holiday Inn at Harvey, a female officer "staying with and protecting" her (T 1262).
So far as the record shows, it was at this time (May 15) that the Gray family was first in touch with Archie B. Weston, the lawyer representing Williams, Rainge, and Jimmerson. This came out when Mrs. Gray was testifying (called by the State) at a suppression hearing during the trial. Under cross-examination by Weston, Mrs. Gray testified that on May 15, evidently in the early evening, she did not know where Paula had been taken. Weston asked Mrs. Gray when she learned where Paula was staying; her reply was: "That's when I got in touch with you" (T 1191). Weston dropped the subject at once. The State then questioned Mrs. Gray about her call to Weston. She would not say whether she knew Weston but said she had "heard quite a bit about him", that somebody had given her Weston's phone number, but that she couldn't remember who did so (T 1194). She further testified that "Mr. Weston had made some phone calls and that's how we found out about Paula" (T 1195).
While the record does not make it certain, it seems reasonably clear that Weston was already on May 15 representing Williams, Rainge and Jimmerson as their attorney. Paula's mother on or before May 15 had been given Weston's phone number and was in touch with him. Weston had known what phone calls to make on May 15 to find out the motel where the State was keeping Paula.
It seems evident that if Mrs. Gray did not already know Weston by Monday evening, May 15, she had indeed "heard quite a bit about him". She had been at her apartment, out of touch with the police, since Sunday morning, May 14. The relatives of Williams were close by and they were keenly interested in Paula, the only eyewitness to the crimes except for the males who as principals committed them. If anybody gave Mrs. Gray the phone number of Weston, it must have been one of the relatives of Williams.
Police officers drove Mrs. Gray on the evening of May 15 to the Holiday Inn at Harvey and, after a visit with Paula, drove her home.
On the next day, Tuesday, May 16, after breakfast, officers came to the Holiday Inn with Mrs. Gray who said: "Paula, just tell the truth" (T 1164). They all then went to the State's Attorneys' offices and Paula testified in the same building before the grand jury.
Paula testified under oath to what she had already told the police and State's Attorneys several times. In summary, she testified that she was with Adams in a car parked near her apartment from the evening of May 10 to the early hours of May 11; that she left him and went to her apartment; that she heard noise and looked out; that she saw Williams' car; that she went to a vacant house next to hers; that she was trying to hide; that she saw Williams, Jimmerson, and Rainge and "two people" (the victims) in the back of Williams' car; that Williams saw her, came to her, took her by the hand, told her to come with him, to follow him; that she did follow him; that the "two people", a white man and woman, were made to go to 1528 Cannon Lane nearby, an abandoned apartment; that they took the woman upstairs; that Rainge stayed with the man; that Williams handed Paula a lighter and told her to light it and hold it; that she did so; that the three men already named plus Adams (who had reappeared) then raped the victim twice each (once for Adams); that Williams then shot the victim twice in the head; that Williams took Paula's hand and told them all to go downstairs; that Williams, Rainge, and she then went with the man near the creek, with Williams still holding Paula by the hand; that near the creek Williams shot the man twice in the head; that Rainge then shot him once in the back; that the three then walked to the creek and Williams threw the gun in the creek at the point she had shown the police; and that Williams told her not to tell the police and that if she did, he would kill her and her family. Paula further testified that she had told what happened to her mother, to her twin sister, to police officers, and to the State's Attorneys.
After her grand jury testimony, Paula and her mother talked with Johnson, a senior State's Attorney, in an office in the same building. They discussed where Paula should stay, whether she should return to the community or be put up and protected as a witness for the State. Mrs. Gray and Paula consulted together, Mrs. Gray saying "repeatedly" to Paula "whatever you want" (T 1267). Paula finally decided and "indicated she wanted to go to the motel again" (T 1267). Mrs. Gray testified that "I just told them to take Paula because I didn't want anything to happen to Paula" (T 1192). Arrangements were made for Paula to stay that night, May 16-17, at a different motel, the Holiday Inn at Hillside, and she did stay there. The next day, May 17, Paula said she wanted to go back to her family; the police officers took her to the Gray apartment, 1525 Hammond Lane, in the housing complex.
Now, on May 17, Paula was back in the community and away from the protection of the State. It was now possible that she could be influenced to deny the truth of the testimony she had given to the grand jury and to the police officers and to refuse to give any further testimony which would ...