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UNITED STATES EX REL. CRIST v. LANE

December 12, 1983

UNITED STATES OF AMERICA EX REL. GILBERT CRIST, PETITIONER,
v.
MICHAEL LANE, RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Gilbert Crist ("Crist"), a prisoner at Menard Correctional Center, has brought this habeas corpus proceeding under 28 U.S.C. § 2254 against Illinois Department of Corrections Director Michael Lane ("Lane"). On August 5, 1983 this Court issued its memorandum opinion and order ("Opinion I," 570 F. Supp. 999), denying the writ on what it believed to be the only issue posed: whether the prosecutor had violated Crist's Fifth Amendment*fn1 right against self-incrimination by his comments in closing argument.

Crist now moves for reconsideration on the ground asserted in his proposed amended petition, pointing out his motion for leave to file that amendment had been filed before Opinion I issued.*fn2 On September 16 this Court set Crist's additional claim for briefing. If reconsideration is granted, the issues are presented on cross-motions for summary judgment.

Crist's additional claim is the state prosecutor's improper comments on rebuttal deprived him of a fair trial as guaranteed by the Due Process Clause. This Court does not lightly make the finding of "egregious misconduct" required by Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974). But here the prosecutor's language and conduct were indeed so outrageous and so inflammatory that relief must be granted. Because that conclusion — though compelled — requires detailed discussion and analysis, this opinion launches on that process.

Facts*fn3

There is no dispute as to any of the relevant facts. According to Crist's state appellate brief 7-8, the complainant and only eyewitness Anthony Russell ("Russell") testified this way:

  At approximately 5:30 p.m. on June 27, 1980 Anthony
  Russell was accosted by a man in the front hall of a
  Chicago housing project building at 1510 West 13th
  Street. (R. 96, 115-116) Russell testified it was a
  sunny day and the lights were on in the building. (R.
  97-98) Russell was carrying a bag of clothing
  belonging to his girlfriend, who was then upstairs.
  (R. 96, 127)
  Russell had just entered the building when he heard a
  voice say, "stop, come here." (R. 97-98) He turned
  around and saw a man about five feet away walking
  toward him and pointing a gun at him. (R. 98-99)
  Russell immediately threw the bag at the man and ran
  to the rear entrance. (R. 101, 122-123) Russell
  testified it would be fair to say he only got a quick
  glimpse of the man and it really wasn't enough time
  for him to get a good look. (R. 128-131) At the same
  time, he testified that the gun was a .22 caliber
  pistol, kind of old looking, with paint chipped off
  the barrel. (R. 99-100)
  As Russell ran to the rear entrance of the building,
  he heard four or five shots. (R. 102) He ran out the
  rear entrance, heard another shot, and felt a pain in
  his back. (R. 102) Russell kept on running until he
  was about 100 feet from the

  building where he thought he was out of the range of
  fire. (R. 123-124) At that time, he felt very
  nauseated and dizzy. He had a pain in his back and a
  lump in his stomach. Blood was coming out of his
  mouth. (R. 103, 124)
  Russell turned around to go back to the building and
  saw the offender come out. (R. 104) The man shouted
  "get some business," fired twice in the air, and ran
  off carrying the bag that Russell had thrown at him.
  (R. 105, 125) Russell testified he got about a 10
  second look at the man outside the building. (R. 105)
  After the offender ran off, friends of Russell's
  named Drew and Michael Lee helped Russell back into
  the building where he fell down. (R. 105-106, 124,
  126) Drew and Lee had seen the whole thing. (R. 126)
  Sometime later, the police arrived and took Russell
  to the hospital. (R. 106)

Some days later Russell told police he had received a telephone call informing him of the whereabouts, vehicle, license number and clothing of his assailant. Then police arrested Crist near the location and wearing the clothing described, and Russell identified Crist in a lineup.*fn4 Michael Lee ("Lee") said Crist was the assailant when he viewed him through one-way glass, but that identification was quashed by the trial judge as made under impermissibly suggestive circumstances.

Crist was tried by a jury on seven counts: attempt murder, armed robbery, armed violence and four counts of aggravated battery. At the trial Russell and two police officers testified for the state. As was its right, the defense then rested without presenting any evidence. In the rebuttal portion of closing argument the prosecutor made eight comments to which Crist now objects.*fn5

Crist was convicted on all seven counts and was sentenced to concurrent 20-year terms on the counts of attempt murder, armed robbery and armed violence, and five years on each count of aggravated battery. It is uncontested Crist exhausted state remedies as to his objections to the prosecutor's rebuttal.

Standard of Review and Its Application

United States v. Carter, 720 F.2d 941 at 950 (7th Cir. 1983) contains our Court of Appeals' most recent exposition of the constitutional standard of review of prosecutorial arguments:

  To determine whether the prosecutor's comments were
  so egregious as to require reversal, we must ask
  whether the
    "statements were so inflammatory and prejudicial to
    the defendant petitioner as to deprive him of a
    fair trial and thus deprive him of his liberty
    without due process of law as proscribed by the
    Fourteenth Amendment. The standard for the court to
    apply in making a determination of whether the
    petitioner was afforded a fair trial is [by]
    jurisprudential necessity a broad one. . . . [E]ach
    case must be decided on its unique facts."
  United States v. Zylstra, [713 F.2d 1332, 1339-40]
  (7th Cir. 1983); United States ex rel. Clark v. Fike,
  538 F.2d 750, 760 (7th Cir. 1976), cert. denied,
  429 U.S. 1064, 97 S.Ct. 791, 50 L.Ed.2d 781 (1977). "It
  is thus necessary to examine the allegedly
  prejudicial remarks of the prosecutor in the context
  of the trial as a whole." United States ex rel.
  Garcia v. Lane, 698 F.2d 900, 902 (7th Cir. 1983).

Crist contends taken as a whole the presence of the eight improper comments (or combinations of comments) in the prosecutor's rebuttal rendered his trial unfair. Those comments are reproduced and discussed in turn (though the two most serious breaches are discussed first, rather than in the chronological order in which they occurred).

1.

  [Prosecutor Kenneth Wadas]: Now, we get their aspect.
  Where is Michael Lee and where is this other
  individual? Well, ladies and gentlemen, since Mr. Fox
  [trial defense counsel*fn6] is one of the last few
  people to talk to Mr. Michael Lee, I would like to
  ask Mr. Fox where Michael Lee is at because I don't
  know where he's at. Ladies and gentlemen, this judge
  sitting on this bench has the authority and power to
  issue subpoenas to any lawyer that comes in this
  courtroom, to me and to the defense. If they know
  where Michael Lee is, they can go get Michael Lee —
  [Defense Counsel Lawrence Fox]: Objection, Judge. The
  state has the burden in this case.

The Court: Sustained.

  [Prosecutor]: Since he's one of the last people to
  talk to Michael Lee I would ask him where Michael Lee
  is.
  [Defense Counsel]: Objection. The state has the
  burden in this case.

The Court: I will instruct as to the burden.

  [Prosecutor]: Ladies and gentlemen, there are
  witnesses to crimes and there are witnesses to
  crimes. There are witnesses who come in open court
  and testify to cases and there are other witnesses in
  the housing projects of the City of Chicago that, for
  some reason or another, do not come into court to
  testify. Why don't they come in to testify? Use your
  common sense and draw some reasonable inferences,
  fear, intimidation, two reasons why people don't come
  into court and testify. I don't know why Michael Lee
  is not here. The defense could have brought him in if
  they wanted him here. Why didn't they bring him in?

[Defense Counsel]: Objection, Judge.

The Court: Sustained. (R. 231-32)

In this excerpt the prosecutor discusses the absence of testimony by Lee, an eyewitness to the shooting. Unknown to the jury, Lee's testimony (which would have identified Crist) had been suppressed as being the product of an impermissibly suggestive identification procedure. Yet the prosecutor himself testified (there being no evidence to support the statement) defense counsel was one of the last people to talk to Lee, then challenged the defense to produce Lee (an objection to which was sustained), then repeated his charge the defense knew where Lee was (an objection to which the trial judge did not rule on expressly). Finally the prosecutor said many people don't testify because they are afraid or have been intimidated, and he again charged the defense with willfully failing to produce Lee (an objection to which was sustained).

That entire argument flouted and subverted the judge's suppression of Lee's testimony. It implicitly accused defense counsel of procuring Lee's absence, a charge the prosecutor knew to be untrue. It testified regarding facts not in evidence, including recent contacts with Lee and conditions in housing projects. Finally, it deliberately repeated improper and prejudicial argument to which an objection had just been sustained.

2.

  [Prosecutor]: [I]f all of this is staged, if he's
  lying on the witness stand, Anthony Russell, then we
  must be part of that. And, ladies and gentlemen, let
  me tell you something. I'm a licensed lawyer in the
  State of Illinois. I took an oath to support the
  Constitution Mr. Arnold told you about and I would
  not put my license on the line for this dog in a
  million years, one million years, a ...

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