The opinion of the court was delivered by: Baker, Chief Judge.
This is a habeas corpus proceeding under 28 U.S.C. § 2254.
For the reasons stated in this order, the writ will issue
directing that the petitioner be resentenced within 120 days.
In the late hours of February 13 and the early hours of
February 14, 1980, in Vermilion County, Illinois, two women
were brutally beaten and murdered. The petitioner, Charles
Silagy, was prosecuted for the murders and convicted. There is
no doubt that Silagy killed the two women.
In his voluntary confession to the police, Silagy described
what he did to the first victim:
[S]he . . . got a little rowdy with me, and I
slapped her glasses off of her face, and . . . she
said somethin' else, and I reached up with my left
hand and grabbed her by the throat and started
choking her. My truck done a spin-around, and
killed itself, and I . . . shut it off and started
chokin' her . . . some more, and kept chokin' her
and . . . a car come up from the south, and so I
acted like we was makin' out, and the car was . .
. all clear, and I commenced chokin' her with my
left hand, and . . . then I decided I didn't have
enough room, or somethin' . . . in the truck . . .
so I . . . fought with the door for a little bit,
and I got it open from the outside, and . . .
because it will not open from the inside. Had to
crank the window down . . . and all this time I
still got ahold of her throat. And chokin' her.
And so I throwed her out on the ground and . . . I
got outta the truck, and I started a-stompin' on
her and jumpin' up and down, and on her head, and
. . . then I drug her across the road, and she was
still breathin', so I . . . took out my pocket
knife and opened it and pulled her coat and blouse
away, and stabbed her approximately five or six
times in the chest . . . on the . . . left . . .
left-hand side . . . and . . . then I left her lay
there. . . .
He also told how he killed the second victim:
[S]o I reached down and . . . picked her up and .
. . started to pick her up, and she turned a table
over, and . . . I tried to . . . take her to the
door, and she wouldn't let go of that table, and
finally I got her broke loose from the table, and
I throwed her over toward the TV, which was back
to the east, which the door is to the northwest .
. from where we were originally. And . . . I, uh .
. . throwed her down, and her head hit the coffee
table, and I went over, and . . . kicked her a
couple o' times in the head, and then I proceeded
to go to a . . . drawer, to where the silverware .
. . the big knives and butcher knives and utensils
were kept at . . . it was separate from the spoons
and forks and things like that. And . . . picked
me out a knife that I knew would . . . not bend,
and . . . I went back over and snatched her blouse
on the left side and yanked it back, and . . .
stabbed her . . . four times continuously in the
As you have been instructed, there is two
different verdicts. I instruct the jury to apply
themselves and think back to your verdict that was
rendered yesterday. Take all those items into your
mind studying them very closely. Upon examing
[sic] those items, do not hinder, do not look at
me for sympathy because I don't want it. I ask you
to look at it from my standpoint. There is two
victims in this crime; they can not ask for
sympathy because they are dead. Thank you.
In the second phase, to determine whether the death penalty
should be imposed, Silagy addressed the jury and said:
I would like to make a statement at this time.
Ladies and Gentlemen of the jury, I'm sitting here
today. I have voluntarily come up here and sat on
this stand to tell you that I did, without any
hesitation, stab and kill and stomp Cheryl Block;
stomp and stab Anne Budde-Waters. I do not want
sympathy from any one of you. Any decision that
you would bring back would not be held against you
in any form or fashion by anyone in this Courtroom
or any of my relations, nor by myself. Also, as
has been submitted by the Defense, I mean, excuse
me, the prosecution, three documents that have
been processed through the legal process. All of
those three items I've served some time for.
Probation on one. On number two I took a plea
bargain; got one to three years in the Illinois
State Department of Corrections. I was placed in a
maximum security penitentiary; released four
months and twenty-eight days later. I was
convicted on the second case which I received six
to ten years. Went to the Appellate Court; got
time cut, which they gave me three years, four
months, and ten days. So I am well aware of the
fact what lays in front of me. I have no desire to
sit in no man's penitentiary. That's not a cop-
out, and that's not a plea. What I am asking the
jury is do not feel sympathy, feel empathy. If you
can wear these 11's right now, do so.
My next statement, I will say this: I do want
the death penalty; and I will go to any lengths to
have it served upon me. I took two lives through
my own foolishness, not nobody else's fault. Mine.
I paid twice before. I am willing to pay the price
now, and no hesitation. I will further state that
under provisions within the law which will be
instructed by the Judge, he will tell you some of
the things that can be and would be given upon me.
I assume, Your Honor, that would be correct?
The jury granted Silagy's request and returned verdicts
finding unanimously that an aggravating factor existed
warranting imposition of the death penalty and that no
mitigating factor existed to preclude imposition of that
penalty. The trial judge entered judgment on the verdicts and
sentenced the petitioner to be executed.
The petitioner sought to overturn the judgment in the Supreme
Court of Illinois but his conviction was affirmed. People v.
Silagy, 101 Ill.2d 147, 77 Ill.Dec. 792, 461 N.E.2d 415 (1984).
The petitioner also sought post-conviction relief in the trial
court without success, and the post-conviction judgment was
affirmed by the Supreme Court of Illinois. People v. Silagy,
116 Ill.2d 357, 107 Ill.Dec. 677, 507 N.E.2d 830 (1987).
On November 7, 1988, the petitioner sought habeas corpus in
this court to overturn his conviction. Silagy makes five main
contentions in support of his petition that center on the
following occurrences during the trial proceedings:
1. The psychiatrists who were appointed by the court to
examine Silagy and to assist him with his defense of insanity
were not professionally competent. Silagy argues that the
physicians, in making their diagnoses, relied on false
information given to them by Silagy and reached professionally
unacceptable opinions about the petitioner's psychiatric state.
As a result, Silagy's rights to due process, to equal
protection, and to effective assistance of counsel were
2. The clerk of the state court jury commission arbitrarily
excluded from the jury venire all persons seventy years of age
and older. That practice, Silagy argues, deprived him of a jury
venire made up of a fair cross section of the community, taking
away his Sixth Amendment rights and his Fourteenth Amendment
due process rights.
3. Juror misconduct deprived him of his due process rights
and his Sixth Amendment right to a jury trial.
4. The trial court committed constitutional error by
permitting Silagy to represent himself in the sentencing phase
of the trial. The trial judge made no determination, the
petitioner asserts, of his mental competency to refuse the
assistance of counsel and to elect not to offer any evidence in
mitigation in the sentencing proceeding. This resulted in a
loss of the petitioner's Fourteenth Amendment due process
rights and his Eighth Amendment right to be free from cruel and
5. The prosecution did not give notice that the
psychiatrists' testimony would be relied upon by the State to
support a finding of an aggravating circumstance to warrant the
death penalty. The petitioner's statements to the psychiatrists
were introduced in evidence against him. The petitioner says
that these occurrences violated his Fourteenth Amendment rights
to due process and his right against self-incrimination under
the Fifth Amendment.
The petitioner raises two further claims. The first concerns
Illinois' abandonment of electrocution as a means of execution
and the second deals with erroneous testimony that the two
victims were siblings.
Finally, the petitioner attacks the constitutionality of the
Illinois death penalty statute. He argues that it vests
unrestricted discretion in the prosecutor to seek the death
penalty and lacks basic notice requirements that result in
Eighth and Fourteenth Amendment violations.
RIGHT TO COMPETENT PSYCHIATRIST
Prior to trial, in anticipation of raising an insanity
defense, the petitioner moved for the appointment of
psychiatrists. The trial court ordered Drs. Daniel Pugh and
Arthur Traugott of the Carle Clinic in Urbana to examine Silagy
to determine whether he "lacked a substantial capacity either
to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law as a result of mental
disorder or mental defect at the time of the offenses charged
in this case." (Record at C-53.) The parties agree that the
doctors, in formulating their diagnoses, relied to some extent
on statements made by Silagy that were later found to be false.
The petitioner now argues that because the court-appointed
psychiatrists accepted Silagy's uncorroborated and false
accounts of his experiences in Viet Nam, they were incompetent.
As a result of that incompetency, the petitioner says, there is
a great risk that the issue of his sanity was inaccurately
The petitioner relies upon the Supreme Court's decision in
Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985). In Ake, the Court held that:
Id. at 83, 105 S.Ct. at 1096 (emphasis added).
The petitioner argues that "because the diagnoses of Drs.
Pugh and Traugott are now known to have rested on false facts,
and because their methodologies were seriously flawed,
especially because they failed to corroborate the statements of
exposure to extreme violence that were made by an arguably
insane defendant, the assistance they rendered here cannot be
said to have been competent within the contemplation of
Ake." (Petitioner's Memorandum, p. 31.) The petitioner argues
that the standard for determining whether the psychiatrist is
competent is the same standard adopted by the Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), reh'g denied, 467 U.S. 1267, 104 S.Ct.
3562, 82 L.Ed.2d 864, for determining whether a petitioner was
denied effective assistance of counsel. The court rejects this
Ake requires only that "the indigent defendant have access to
a competent psychiatrist. . . ." Ake, 470 U.S. at 83, 105 S.Ct.
at 1096. Ake does not require that the psychiatrist's
evaluation be flawless. The trial judge appointed three
board-certified, experienced, practicing psychiatrists to
assist the petitioner in preparing his defense. Accordingly,
the court finds that the requirements of Ake have been met. The
court holds that Ake merely requires that to be "competent,"
the psychiatrist appointed by the court must be experienced and
board certified. To interpret Ake as the petitioner suggests
would involve resolving what amounts to a medical malpractice
claim in this collateral attack on the state court judgment.
This ground for habeas corpus relief is without merit.
The parties agree that contrary to Ill.Rev.Stat., ch. 78,
¶ 4 (1979), the civil servant responsible for assembling jury
venires in Vermilion County excluded from jury service all
persons who were seventy years of age or older. (See Scharlau
Affidavit, Exhibit VB.) The petitioner argues that because of
this systematic exclusion he was denied his constitutional
rights under the Sixth and Fourteenth Amendments to have a jury
selected from a fair cross section of the community. Taylor v.
Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975);
Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579
In Taylor, the Supreme Court held that the Sixth and
Fourteenth Amendments require that the jury venire be drawn
from a fair cross section of the community. Id. at 530, 538, 95
S.Ct. at 697, 701. In Duren v. Missouri, the Supreme Court set
forth what a defendant must show to establish a prima facie
violation of the fair cross section requirement. The Court held
[T]he defendant must show (1) that the group
alleged to be excluded is a "distinctive" group in
the community; (2) that the representation of this
group in venires from which jurys are selected is
not fair and reasonable in relation to the number
of such persons in the community; and (3) that
this underrepresentation ...