Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79 C 4229 - Abraham Lincoln Marovitz, Judge.
Cummings, Chief Judge, Easterbrook, Circuit Judge, and Wright, Senior Circuit Judge.*fn*
EASTERBROOK, Circuit Judge.
Alonzo Howard Jones is serving a lengthy term of imprisonment following his conviction in state court for several offenses in the course of a riot in the Menard Penitentiary. During the riot three officers were stabbed to death, others were injured, and several guards and inmates were taken hostage and threatened with death. The evidence in the state trial would have supported a conclusion that Jones was a ringleader, that he threw a homemade firebomb at a guard tower in the dining room to start the riot, that he murdered one of the guards himself, and that he was in command during the period the inmates barricaded themselves and held hostages. See People v. Bassett, 56 Ill. 2d 285, 307 N.E.2d 359 (1974) (affirming his convictions but vacating his sentence of death).
We omit further description of the facts and procedural details of this case, which have been set out in the opinion of the Supreme Court of Illinois, a prior opinion of this court, see 676 F.2d 261 (7th Cir. 1982), and a lengthy opinion of the district court. We assume familiarity with these opinions and turn directly to Jones's arguments.
Jones first argues that he is entitled to relief because the state induced witnesses to give false testimony at his trial (or at least knowingly let perjured testimony pass without correction). He raised this contention in the state court, which held a hearing after the trial and decided adversely to him. The Supreme Court of Illinois also rejected the claim. The district court has now given full consideration to the question whether the findings and procedures of the state courts are sufficient to foreclose further review under 28 U.S.C. § 2254(d). The district court concluded that they are, and we agree.
The parties disagree about just what evidence was before the state court and what inferences should be drawn from it. It is unnecessary to resolve the dispute. It is clear that the depositions of three prisoners were in evidence before the state court. One of these (Scroggins) had been a witness for the state at trial; two (Austin and Case) had not. Scroggins maintained that he had lied and that other witnesses also had lied at the state's behest; Austin and Case said that they had heard that the state procured perjured testimony, though they could not or would not name names and identify times.*fn** The state trial court rejected the arguments, essentially without opinion. The Supreme Court said: "we do not find that [the evidence] established the knowing use of perjured testimony" (307 N.E.2d at 364). The finding of a state court, even an appellate court, is entitled to deference under § 2254(d), see Sumner v. Mata, 449 U.S. 539, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981).
We agree with the district court that there was such a "finding" here. The state court must have determined that the deponents' statements were not credible. The judge who heard the post-trial motions also presided over the lengthy trial. At the trial 52 witnesses inculpated the defendants. One guard testified that he saw Jones hurl the bomb and heard him shout "contact" to start the riot, another that Jones stabbed him, still another that Jones held him hostage, and so on. Two of the deponents were quite vague about who offered or responded to inducements to perjury. Of the fifteen prisoners who testified, only one (Scroggins) has since recanted and claimed that the state procured perjured testimony. Courts treat recantations and claims of perjury with great skepticism even under the best of circumstances. See United States v. Krasny, 607 F.2d 840 (9th Cir. 1979) (collecting cases), cert. denied, 445 U.S. 942, 100 S. Ct. 1337, 63 L. Ed. 2d 775 (1980). The judge had heard Scroggins and the 51 other witnesses at trial and therefore was in an unusually good position to make a determination. It is regrettable that he did not make an explicit determination of credibility on the record, but it is plain from the context -- and the treatment of the case by the Supreme Court of Illinois -- that he indeed made this determination. Cf. Townsend v. Sain, 372 U.S. 293, 315, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963) (permissible to reconstruct findings not made expressly). Jones says (and he may be right) that the Supreme Court of Illinois misstated exactly what was in evidence and what was just offered but not admitted, but we do not think this undermines either the procedures or the conclusions of the state court.
Jones has not offered new affidavits or any other evidence calling into question the decision of the state courts. He relies essentially on the proposition that because the deponents' statements were uncontradicted the judge was required to credit them. This is not the law. A judge may disbelieve testimony, and he may do this even without giving reasons. Here the ground of a credibility decision was apparent -- the judge's experience at trial coupled with the vagueness of the depositions -- and we therefore think his findings entitled to force now.
One additional ground Jones offers in support of his attack on the state's findings is the observation that ten of the fifteen inmate-witnesses received early release after the trial. Seven of the inmate-witnesses had been asked if they received promises of clemency; all denied such promises. The experience of the ten shows, according to Jones, that the witnesses were lying; at least it furnishes support for the positions of the three deponents. This evidence is troubling but ultimately not dispositive. The evidence certainly suggests a pattern. No one suggests that two-thirds of the prisoners in Illinois jails receive early release under circumstances such as those here. Numbers may speak louder than words in criminal cases as well as in cases of employment discrimination, and the release rates suggest that the witnesses received rewards. But the questions at trial asked if the witnesses had been promised early release. A truthful answer of "no" may be perfectly consistent with an actual reward. The state was entitled to reward those who helped make the case, if only because (a) this showed an attitude far preferable to that of prisoners who refused to testify truthfully against their fellow inmates, and (b) the witnesses who testified truthfully may have been in danger back in prison. The fact of early release does not show the promise of early release -- or so, at least, the trier of fact would be entitled to conclude.
Jones argues that the state failed to turn over material required by Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The material in question is the typed version of interview notes of witnesses. The notes were transcribed on "white cards" and destroyed; the white cards were not turned over at trial; the white cards themselves now apparently have been lost. Jones says that the white cards must have contained information favorable to the defense.
We very much doubt that this issue has been preserved in the state courts. Jones makes an elaborate argument that the issue has been preserved, because his counsel cited in state court some state cases that contained citations to cases in the Brady line. The state responds that the cases counsel cited all were in the line of Jencks v. United States, 353 U.S. 657, 1 L. Ed. 2d 1103, 77 S. Ct. 1007 (1957), and that because the Supreme Court explicitly has held that Jencks is not based on the Constitution, Jones failed to alert the state courts adequately. See United States v. Augenblick, 393 U.S. 348, 21 L. Ed. 2d 537, 89 S. Ct. 528 (1969) (no constitutional problem in not turning over witness's verbatim statements to defense). The state says that because Jones failed to alert the state court to the substance of the claim, it has been forfeited and may not now be raised. See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977); United States ex rel. ...