Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 6817-Prentice H. Marshall, Judge
Before CUMMINGS, Chief Judge, and BAUER and POSNER, Circuit Judges.
POSNER, Circuit Judge. The district court granted habeas corpus to George Phillips, a state prisoner, and ordered the state to release him unless it retries him; if it does retry him it will first have to conduct a hearing to determine whether he is mentally competent to stand trial. See 580 F. Supp. 839 (N.D. Ill. 1984). The basis of this ruling is that the state judge who presided at Phillips' fitness hearing (actually a "fitness restoration" hearing) failed to instruct the jury that the state had the burden of proving sanity; he told the jury that it must find fitness or unfitness by a preponderance of the evidence but did not tell them what to do if the evidence was in equipoise. this court has held that the due process clause of the Fourteenth Amendment requires that the state prove mental competence to stand trial, see United States ex rel. Bilyew v. Franzen, 686 F.2d 1238 (7th Cir. 1982); United States ex rel. SEC. v. Billingsley, 766 F.2d 1015, 1022-23 (7th Cir. 1985) - that the state cannot require the defendant to prove incompetence - and although the state asks us to reconsider these holdings, that will not be necessary here, as we shall see.
The state has appealed from the grant of habeas corpus, while Phillips has cross-appealed from the district court's refusal to order, as a further preliminary to Phillips' retrial, a new hearing on Phillips' motion to suppress certain evidence. The ground of the cross-appeal is that at the suppression hearing that preceded the trial the judge should have inquired, on his own initiative, into Phillips' mental competence to participate in the hearing.
Phillips was tried and convicted in 1978 for a murder committed six years earlier, and was sentenced to a term of 100 to 200 years in prison. The issues in this habeas corpus proceeding arise out of events preceding the trial. Shortly after his indictment in 1974, Phillips asked for a psychiatric examination. Two psychiatrists who examined him found him to be sane; a third, Dr. Tuteur, found him insane but apparently his reports (he examined Phillips twice) were not before the judge when, in August 1975, a hearing was held on Phillips' motion to suppress statements that he had made to the police about the murder. The motion was denied. Later, additional psychiatric examinations were conducted, with Dr. Tuteur again finding Phillips insane but other psychiatrists disagreeing. In November 1976 a fitness hearing was conducted. Phillips was found to be unfit to stand trial but remained in custody where later he was examined four or five more times by psychiatrists all or most of whom (the record is unclear) found him fit for trial. The state requested a fitness-restoration hearing. It was held in February 1978. Two psychiatrists testified for the prosecution and Dr. Tuteur testified for Phillips. This was the hearing at which the jury was not instructed on burden of proof. The jury found Phillips fit to stand trial and the trial followed.
Regarding the failure to instruct the jury at the fitness-restoration hearing on who had the burden of proof, we must first consider whether Phillips waived this issue by failing to raise it at the hearing. When Phillips tried to raise it on direct appeal from his conviction the Illinois Appellate Court stated that he had waived it by not making a timely objection in the trial court. People v. Phillips, 110 Ill. App. 3d 1092, 1099, 443 N.E.2d 655, 660, 66 Ill. Dec. 729 (1982). Ordinarily that would be the end of the matter. A procedural default that under state law bars consideration of the merits of a criminal defendant's challenge to his conviction also bars consideration by the federal court in a habeas corpus proceeding unless the defendant can show good cause for having committed the default, and that he probably would have been acquitted if he hadn't committed it. This is the "cause and prejudice" rule of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1976), designed to make sure that the defendant in a state criminal trial gives the state courts a fair chance to correct any federal constitutional errors before he asks the federal courts to nullify his conviction, perhaps many years later (the murder of which Phillips was convicted was committed 14 years ago) and in circumstances that preclude a retrial.
Phillips did not argue in the district court that he had had good cause for making a timely objection to the failure to instruct the jury at the fitness-restoration hearing on burden of proof. 580 F. Supp. at 849 n. 10. His argument was that all he waived, under Illinois law, was the right to argue ordinary rather than plain error, and that if there was error here, it was plain. The relevant part of the state appellate court's opinion begins, "by failing either to tender an alternate instruction or to object to the instruction as given, defendant has waived the right to raise the issue on appeal unless the omission amounts to plain error." 110 Ill. App. 3d at 1099, 443 N.E.2d at 660. The court proceeded to consider whether there was plain error in regard to the burden of proof at the fitness-restoration hearing and found that there was not, because "Our review of the record demonstrates that not only was the jury properly instructed that the State bore the burden of proving defendant fit for trial by a preponderance of the evidence, but also that the State met its burden." Id. The first clause in this passage is wrong; the judge had not told the jury which party had the burden of proof.
If a state court holds that the defendant has waived any objection he might have had to some procedural ruling (here nonruling), because he violated the state's procedural rules, its refusal to set aside the defendant's conviction is supported by an adequate and independent state ground which bars him from obtaining relief in a federal habeas corpus proceeding, even if the state court goes on and says: and anyway the objection lacked merit. United States ex rel. Merneigh v. Greer, 772 F.2d 322, 327 (7th Cir. 1985). A conviction is not invalid because in reviewing it the state court said something wrong that was not essential to its refusing to set the conviction aside; the error has no causal significance in the decision to affirm. We would not reverse a district court because one of two independent grounds of decision was incorrect; even less should we nullify the decision of another sovereign on such a basis. Of course if the alternative grounds are not independent - if the second somehow contaminates the first - then if the second is erroneous the first may be too. The alternative ground for example might show that the state didn't take its procedural rules seriously.
The decision of the Illinois Appellate Court does not read as if it rested on two distinct and independent grounds, one of which, being a matter of state procedural law, is beyond the power of a federal court to reexamine in a habeas corpus proceeding. Read literally, the decision regards Phillips as having a right to a determination of whether there was plain error, and then it proceeds to consider whether there was, and to find there was not. But a literal reading would be wrong. The Illinois plain error rule (like the federal, see Fed. R. Crim. P. 52(b)) is in terms permissive rather than mandatory: "Plain errors or defects affecting substantial rights may be noticed [on appeal] although they were not brought to the attention of the trial court." Ill. Rev. State. ch. 110A, P 615(a). Consistently with its wording, it has been interpreted to make reversal for plain error a matter of grace, rather than a duty. See, e.g., People v. Sanders, 99 Ill. 2d 262, 274, 457 N.E.2d 1241, 1247, 75 Ill. Dec. 682 (1983); People v. Burson, 11 Ill. 2d 360, 370, 143 N.E.2d 239, 245 (1957) (interpreting the common law predecessor to paragraph 615(a)). The parallel federal rule has also been deemed discretionary rather than mandatory, although the cases are few, see On Lee v. United States, 343 U.S. 747, 750 n. 3, 96 L. Ed. 1270, 72 S. Ct. 967 (1952); United States v. Jarrad, 754 F.2d 1451, 1456-57 (9th Cir. 1985); Stone v. United States, 435 F.2d 1402, 1403 n. 1 (2d Cir. 1970); United States v. Indiviglio, 352 F.2d 276, 280 (2d Cir. 1965) (en banc), and none contains a full discussion of the question. the grounds for regarding the Illinois rule as discretionary are stronger. The Illinois Supreme Court has said that the rule "is permissive. It lies within the discretion of the reviewing court to consider an alleged error not raise or brought to the attention of the trial court even if it affects substantial rights." People v. McAdrian, 52 Ill. 2d 250, 255, 287 N.E.2d 688, 691 (1972). This could hardly be clearer - leading us to note recently, "It is clear that an appellate court's authority under Illinois law to consider plain error notwithstanding a party's procedural default is purely discretionary, and that a court may therefore find an error to be waived even when the error is constitutional in nature." United States ex rel. Merneigh v. Greer, supra, 772 F.2d at 326.
Illinois has another plain error doctrine, limited to instructions in criminal cases, which states that "substantial defects are not waived by failure to make timely objections thereto if the interests of justice require." Ill. Rev. Stat. ch. 110A, P 451(c). Assuming without having to decide that this rule is applicable to instructions given in proceedings not directly concerned with guilt or innocence - namely the fitness-restoration hearing - it is not mandatory either, despite its wording. The "interests of justice" is not a definite legal standard; and consistently with this point and with the decisions on paragraph 615(a), the Illinois courts interpret paragraph 415(c) as also a doctrine of judicial grace rather than duty. See People v. Anderson, 108 Ill. App. 3d 563, 568, 439 N.E.2d 65, 69, 64 Ill. Dec. 136 (1982); People v. Roberts, 75 Ill. 2d 1, 14, 387 N.E.2d 331, 337, 25 Ill. Dec. 675 (1979).
It is true that in People v. Sanders, supra, 99 Ill. 2d at 274, 457 N.E.2d at 1247, the court said, "The decision whether to apply the plain error doctrine where the evidence is not close is one of grace" - a proposition that if read literally would imply that if the evidence is close, review for plain error is mandatory, not optional. But not only would a literal reading create inconsistency with language on the same page of the opinion indicating that review for plain error is discretionary; it would redefine plain error. Prejudice is a component of plain error; to be plain, an error must not only be clear but also be likely to have changed the outcome of the case. See, e.g., United States v. Silverstein, 732 F.2d 1338, 1349 (7th Cir. 1984). That means that the domain of the rule is limited to cases where the facts are so closely balanced that the error might have made a difference in outcome. Other Illinois cases suggest therefore that the presence of "closely balanced" facts is one of the criteria for applying the plain error rule, rather than something that creates a subset of plain error cases in which the court must, rather than may, reverse if plain error is found. See People v. Friesland, 109 Ill. 2d 369, 375, 488 N.E.2d 261, 263, 94 Ill. Dec. 435 (1985); People v. Gacy, 103 Ill. 2d 1, 28, 468 N.E.2d 1171, 1181, 82 Ill. Dec. 391 (1984); People v. Stewart, 104 Ill. 2d 463, 488, 473 N.E.2d 1227, 1238, 85 Ill. Dec. 422 (1984); People v. Lucas, 88 Ill. 2d 245, 251, 430 N.E.2d 1091, 1093-94, 58 Ill. Dec. 840 (1981) ("The doctrine of plain error may be invoked in criminal cases where the evidence is closely balanced or where the error was of such magnitude that the accused was denied a fair trial"); People v. Jackson, 84 Ill. 2d 350, 359-60, 418 N.E.2d 739, 743, 49 Ill. Dec. 719 (1981).
We doubt that the Illinois Supreme Court in the passage we quoted from Sanders (or in a similar passage in People v. Walker, 109 Ill. 2d 484, 504, 488 N.E.2d 529, 538, 94 Ill. Dec. 530 (1985)) meant surreptitiously to replace grace by duty in cases to which the plain error rule would normally apply and to create a new plain error rule for use (though purely as a matter of grace) in cases where the error was not plain in the traditional sense. This would be a weird break with the past and it seems more realistic to suppose that all the court meant was that it would invoke the plain error rule where necessary to avoid miscarriages of justice. This statement of intention would not alter the fact that invoking the rule is a matter of grace, any more than a governor would lose his discretion to grant or deny executive clemency as a matter of private conscience by saying that of course he would exercise it where necessary to avoid a miscarriage of justice. It might be monstrous if the governor refused to exercise clemency in a case where he thought there had been a miscarriage of justice, or for a court to refuse to reverse for plain error where it thought there had been a miscarriage of justice; but not every wrong - not every violation of the moral law - is a violation of a legal duty.
If the existence of a plain error rule entitled a defendant to obtain review in a federal habeas corpus proceeding of plain error whatever procedural defaults he may have committed, the domain of Wainwright v. Sykes would shrink to a small area. A defendant would always have the right to ask the federal court to set aside his state conviction for plain constitutional error, even if he had failed to make a timely objection in the state court. We do not think that this is the law; and we do not think that Illinois has some highly unusual plain error rule such as would eliminate all procedural barriers to review by federal courts of criminal convictions in Illinois for plain constitutional error. We add, finally, that even if Illinois has a mandatory plain error rule, it is limited to cases where the evidence is close, so that failure to reverse for plain error could be thought to cause a miscarriage of justice - the conviction of an innocent man. The present case is not a close case in this sense; Phillips confessed to the crime and there is no doubt of his guilt.
Although Phillips further argues that the plain error rule is not discretionary where the defendant's mental competence is in issue, there is no indication that the Illinois courts take this view, and certainly the Illinois Appellate Court in this case did not; it held that Phillips had committed a procedural default, though it went on to consider whether the error to which he had failed to make a timely objection was a plain one. Illinois courts have repeatedly enforced procedural defaults committed by defendants in matters relating to their mental competence. See People v. Foster, 76 Ill. 2d 365, 380, 392 N.E.2d 6, 12-13, 29 Ill. Dec. 449 (1979); People v. Devine, 98 Ill. App. 3d 914, 923, 424 N.E.2d 823, 830, 54 Ill. Dec. 73 (1981); People v. Drummond, 87 Ill. App. 3d 890, 895, 409 N.E.2d 361, 365, 42 Ill. Dec. 746 (1980). Of course one can think of cases where this would be a ludicrous result, as for instance if the defendant whose fitness was in question was not represented by counsel. But in such a case, the defendant could argue that there was good cause for the procedural default; and good cause was not argued in this case until too late, as we shall see. A blanket rule that defendants may not be held to any of the tactical decisions that they make through counsel in a ...