Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, No. 85 C 10386 -- Paul E. Plunkett, Judge.
Wood, Jr., Posner, and Easterbrook, Circuit Judges.
Dickey Gaines was sentenced to death by an Illinois state court after being convicted of the murder of two persons, the attempted murder of a third, and other crimes, all growing out of a hold-up committed by him and his brother Michael in 1978. The brothers were indicted together, but Dickey Gaines' motion to sever was granted, and Michael was tried separately, convicted, and sentenced to 75 years in prison. Dickey Gaines, after exhausting his state remedies, see People v. Gaines, 88 Ill. 2d 342, 430 N.E.2d 1046, 58 Ill. Dec. 795 (1981) (direct appeal); People v. Gaines, 105 Ill. 2d 79, 473 N.E.2d 868, 85 Ill. Dec. 269 (1984) (state post-conviction proceeding), brought this habeas corpus action, alleging federal constitutional error both at trial and in the capital sentencing hearing. See 28 U.S.C. § 2254. The district court held that Gaines had not been effectively represented at his capital sentencing hearing and was therefore entitled to a new hearing, but refused to disturb the conviction. Gaines appeals from the refusal to vacate his conviction and the state from the vacating of the death sentence. Because we have concluded that Gaines was convicted in violation of the Constitution and is therefore entitled to a new trial, we need not address the difficult questions raised by the state's appeal.
The murder victims were Andre Davis and Causia McCall; and the attempted-murder victim, who was also the state's star witness, was Lenious Thomas. At 2:00 a.m. on the fatal day, Lenious Thomas, Andre Davis, and Michael Gaines--whom Thomas and Davis had met that evening in a tavern--left the tavern. They were joined by Dickey Gaines, and at Davis' behest went to a house where Davis wanted to pick up some clothes that belonged to him. Davis and Thomas entered a bedroom where McCall was sleeping. The Gaines brothers appeared. According to Thomas, Dickey Gaines announced a stick-up and produced a pistol. Thomas pulled two one-dollar bills from his pocket and turned toward Dickey Gaines, who began shooting. Alter the first shot, Thomas, who was not hit, hurled himself to the floor, face down, and thus did not see what happened next. However, he heard several more shots fired, following by retreating footsteps, presumably of the Gaines brothers. When Thomas looked up, Davis and McCall had been shot dead. The shots had been fired from the same gun, a pistol later found in the attic of the house where the Gaines brothers lived with their mother. Thomas picked Gaines out of a lineup, and identified him at trial as well.
The police visited the Gaines residence, looking for the brothers. Michael, but not Dickey, was there. While the police were there Dickey phoned, and Mrs. Gaines allowed a police officer to listen in to the conversation on an extension phone. Dickey spoke to Michael, upbraided him, and acknowledged his own involvement in the crime: "Don't you know they can give us the chair for what we done? You ain't even doing your part, man. You ain't even put the gun where you was supposed to." Alter Dickey hung up, Michael led the police to the murder weapon.
At trial, Robert Dwyer, a police officer, testified about what he had told Dickey Gaines after Gaines had been arrested and been given his Miranda warnings: "To the best of my recollection I informed him that he had just been identified by an eyewitness as the individual who had shot and killed Mr. Davis and Mr. McCall." The eyewitness was, of course, Lenious Thomas. Dwyer went on--and this is the crucial interchange:
I also told him that he had been implicated by his own brother as the person who shot and killed these two--
Mr. Walsh [Dickey Gaines' counsel]: I'll object Judge. Move for a mistrial.
The Court: Objection overruled. Motion for a mistrial is denied.
Mr. Boyle [prosecutor]: Please continue, officer.
A: I also called to his attention that we did in fact have the murder weapon in custody and that his brother had given us an accounting of the whole sequence of events.
Dickey Gaines contends that the disclosure to the jury of the fact (if it was a fact) that his brother had implicated him as the triggerman violated the principle laid down in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Bruton and Evans were tried together for armed robbery. A postal inspector testified that Evans had confessed that he and Bruton had committed the robbery. The judge held that this testimony, though hearsay, was admissible against Evans, as an admission against interest, but not against Bruton; and so he told the jury not to consider Evans' confession when deliberating about Bruton's guilt. The Supreme Court held that Bruton's constitutional right to confront the witnesses against him (Pointer v. Texas, 380 U.S. 400 404-05, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965)) had been infringed. The co-defendant's statement implicating Bruton was particularly damaging, and the limiting instruction bound to be ineffectual, for how could the jury realistically be expected to consider the confession when deliberating on Evans' guilt but ignore it when deliberating on Bruton's guilt? Later cases make clear that although not every Bruton error is reversible, to avoid reversal the prosecution must show that the error was harmless beyond a reasonable doubt. See, e.g., Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726 (1969); Schneble v. Florida, 405 U.S. 427, 31 L. Ed. 2d 340, 92 S. Ct. 1056 (1972).
As an original matter, we might well doubt whether the rule of Bruton is applicable to this case at all. Officer Dwyer did not testify that Michael Gaines had confessed and in confessing had implicated Dickey Gaines; he merely testified that Michael (the reference was clear, though the name was not mentioned) had implicated Dickey Gaines. To the extent that the rule of the Bruton case is based on concern that the jury will give special weight to a confession, the concern is absent here and weakens the argument for applying the rule. On the other hand, the jury knew that Michael had been indicted along with Dickey, because the judge read the indictment to the jury several times, count by count, naming both brothers. It knew from the testimony of Lenious Thomas (which preceded that of Dwyer), and above all from the testimony about the brothers' phone conversation overheard by the police, that in all likelihood the brothers had been in cahoots in staging ...