United States District Court, Central District of Illinois, Danville Division
April 29, 1989
UNITED STATES OF AMERICA, EX REL. CHARLES SILAGY, PETITIONER,
HOWARD PETERS, III, AND NEIL HARTIGAN, RESPONDENTS.
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. . . .
Record at C-386.
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
Record at C-387.
In the sentencing stage of the case,*fn1 Silagy elected to
proceed pro se. Silagy told
the jury during the first phase, where it was determined that
his offense was one to which the death penalty could apply:
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.
Record at 906.
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?
Record at 979-81.
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:
[W]hen a defendant demonstrates to the trial judge
that his sanity at the time of the offense is to
be a significant factor at trial, the State must,
at a minimum, assure the defendant access to a
competent psychiatrist who will conduct an
appropriate examination and assist in evaluation,
preparation, and presentation of the defense. This
is not to say, of course, that the indigent
defendant has a constitutional right to chose a
psychiatrist of his personal liking or to receive
funds to hire his own. Our concern is that the
indigent defendant have access to a
psychiatrist for the purpose we have discussed,
and as in the case of the provision of counsel we
leave to the State the decision on how to
implement this right.
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.
FAIR CROSS SECTION
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 is due to the systematic
exclusion of the group in the jury-selection
439 U.S. at 364, 99 S.Ct. at 668.
The petitioner argues that he has established a prima facie
cross section violation under Duren. The only point of
contention is whether the group excluded by the jury clerk is a
"distinctive" group within the meaning of the Duren test. To
support that position, the petitioner introduced the testimony
of a social scientist during the evidentiary hearing before
this court. The court did not find that testimony persuasive.
The court accepts that the petitioner has satisifed parts two
and three of the Duren test. The court, however, does not agree
that the excluded group is a "distinctive" group for Duren
purposes. People age seventy and above do not, based on age
alone, constitute an "identifiable" segment
that plays a major role in the community. Taylor, 419 U.S. at
530, 95 S.Ct. at 697. While the elderly have much to offer in
terms of life experience and exposure that make their
contribution to all aspects of life, including jury service,
invaluable, they cannot be classified as an identifiable
segment on age alone. They are not a distinct group for Duren
purposes. What is it that distinguishes people who are seventy
years old and older from people who are sixty- nine or sixty or
fifty-five for that matter? No evidence was offered to suggest
that there is some common thread of shared experience or
political, social or religious viewpoint that binds this group
together to make it distinct from any other age group. The
systematic exclusion of citizens seventy years old and older
violated Illinois law but it did not violate the fair cross
section requirements of the Constitution. Accordingly, the
court holds that the group excluded was not distinctive for
Duren purposes and as a result the petitioner has failed to
raise a proper cross section violation.
Moreover, even if the court found that the group excluded in
this case was distinctive for Duren purposes, the Supreme
Court's recent decision in Teague v. Lane, ___ U.S. ___, 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989), bars this court from
applying that finding to overturn the petitioner's conviction.
In Teague, the plurality decision written by Justice O'Connor
held that "habeas corpus cannot be used as a vehicle to create
new constitutional rules of criminal procedure unless those
rules would be applied retroactively to all defendants on
collateral review through one of the two exceptions we have
articulated." Id. 109 S.Ct. at 1078. In Teague, the plurality
adopted Justice Harlan's exceptions to the general rule of
non-retroactivity for cases on collateral review.
First, a new rule should be applied retroactively
if it places "certain kinds of primary, private
individual conduct beyond the power of the
criminal law — making authority to proscribe."
Mackey v. United States, 401 U.S.  at 692 [91
S.Ct. 1171 at 1180, 28 L.Ed.2d 388 (1971)]. Second,
a new rule should be applied retroactively if it
requires the observance of "those procedures that .
. . are `implicit in the concept of ordered
liberty.'" (Citation omitted.)
Id. 109 S.Ct. at 1073. Under Teague the court must first look
at the proposed constitutional rule to determine if it falls
within one of Justice Harlan's two exceptions. If it does, then
the new constitutional rule of criminal procedure may be
recognized on collateral review. Otherwise, the court must
refuse to create new constitutional rules of criminal procedure
on collateral review.
The petitioner argues that Teague does not apply since he is
not asking the court to create a new constitutional rule. The
petitioner maintains that the rule to be applied in this case
is the rule adopted in Taylor and Duren, and that all he is
asking the court to do is apply an old rule and hold that the
group of citizens seventy years and older constitutes a
"distinctive group." The court does not agree. Taylor and Duren
establish that distinctive groups cannot be excluded from jury
venires. The Court has not defined what constitutes a
distinctive group. In fact, the Court left it to the states to
determine what constitutes a distinctive group. See Duren 439
U.S. at 370, 99 S.Ct. at 671; Taylor, 419 U.S. at 538, 95 S.Ct.
at 701. Accordingly, for this court to decide that the group
comprised of persons seventy years and older is a distinctive
group for Duren purposes, would be to announce a new
constitutional rule. Furthermore, the rule would not fall
within the two exceptions described by Justice Harlan and
adopted by the Supreme Court in Teague. This ground for habeas
corpus relief, therefore, fails.
Silagy claims that his constitutional rights were violated
when (1) the trial court failed to replace a sleeping juror,
(2) the jury considered off-the-record evidence in the form of
media coverage and one juror's personal input, and (3) the
jury, in reaching its sentencing verdict, considered off-the-
inaccurate information regarding possible punishments Silagy
Silagy argues that his rights to due process and to a fair
trial were violated when the trial court failed to replace a
juror who dozed off "a couple of times" during the presentation
The Illinois Supreme Court addressed this claim.
After all of the testimony had been received,
the defendant's counsel requested that one of the
jurors be removed by the court and replaced by one
of the three alternate jurors. Defense counsel
stated that she and "other individuals in the
Courtroom" had observed the juror periodically
dozing during the trial. She claimed that the
juror "was about falling or leaning against the
juror seated next to him." The trial court stated
that it had seen "no evidence as stated by Defense
Counsel." When asked why she had not previously
called the juror's alleged inattentiveness to the
court's and the prosecutor's attention, defense
counsel acknowledged that she should have objected
Despite its expressed belief that the tardiness
of the claim raised a question as to the sincerity
of the request, the court examined the juror. The
juror stated that he may have nodded once or twice
for a period of seconds, but could not say that he
fell asleep at any time during the course of the
trial. He further stated that he did not think he
had missed any of the testimony. The defendant's
attorney did not question the juror and offered no
evidence that the juror had fallen asleep. The
court denied the motion to dismiss the juror.
The defendant now argues that he was denied the
right to be tried by a jury of 12 competent
persons who consider all of the evidence
presented. He cites United States v. Cameron (3d
Cir. 1972), 464 F.2d 333, and United States v.
Smith (5th Cir. 1977), 550 F.2d 277, in arguing
that the juror should have been replaced. In both
of those cases it was said that a juror who cannot
remain awake during much of a trial is unable to
perform his duty. Here, not only was it not shown
that the challenged juror slept regularly during
the trial, but the trial court found that the
evidence was insufficient to prove that he was
asleep at any time. On this issue there was only
the defense counsel's allegation and the juror's
own testimony that he had not missed any of the
testimony. Despite her claim that others had seen
the juror sleeping, the defense counsel did not
present any testimony to support her claim. It
cannot be said that the trial court abused
discretion in denying the motion. Too, if the
defendant or his attorney did see the juror
sleeping, there was a duty to call it to the
attention of the court at that time. (United States
v. Carter (10th Cir. 1970), 433 F.2d 874, 876.) The
failure to do so resulted in a waiver of the
point.People v. Nachowicz, (1930), 340 Ill. 480
[172 N.E. 812]; People v. Shockey (1966), 66 Ill. App.2d 245
[213 N.E.2d 107].
People v. Silagy, 101 Ill.2d 147, 170-71, 77 Ill.Dec. 792,
461 N.E.2d 415 (1984).
The Illinois Supreme Court subsequently refused to readdress
the issue on post-conviction review, finding that such review
was barred by res judicata because the issue had been raised
and disposed of on direct appeal. People v. Silagy, 116 Ill.2d 357,
367, 107 Ill.Dec. 677, 507 N.E.2d 830 (1987).
This court is bound by the factual determinations of the
Illinois Supreme Court unless the record shows that there is no
basis for such determinations. Sumner v. Mata, 449 U.S. 539,
547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); United States
ex rel. Cosey v. Wolff, 682 F.2d 691, 693 (7th Cir. 1982). The
record shows ample basis for the Illinois Supreme Court's
conclusion that the trial court did not abuse its discretion in
denying Silagy's motion to dismiss the juror.
The petitioner also alleges that the jury considered off-the-
record evidence in the form of media coverage and one juror's
personal input. In disposing of his petition for post-
conviction relief, the Illinois Supreme
Court addressed this claim. That court stated:
Because the actual effect of the complained-of-
conduct on the minds of the jurors cannot be
proved, this court has held that "the standard to
be applied is whether the `conduct involved "such
a probability that prejudice will result that it
is [to be] deemed inherently lacking in due
process."'" (People v. Holmes (1978), 69 Ill.2d 507,
514 [14 Ill.Dec. 460, 372 N.E.2d 656], quoting
Estes v. Texas (1965), 381 U.S. 532, 542-43, 14
L.Ed.2d 543, 550, 85 S.Ct. 1628, 1633; People v.
Tobe (1971), 49 Ill.2d 538, 544 [276 N.E.2d 294].)
We consider that the juror's affidavit concerning
jurors' alleged discussion of news reports did not
demonstrate that the jury deliberations were so
affected as to deprive the defendant of due
process. Assertions of exposure to media coverage
do not of themselves de monstrate prejudice to a
defendant. (People v. Lieberman (1986), 149 Ill. App.3d 1052,
1057 [103 Ill.Dec. 480,
501 N.E.2d 797].) Considering the record before us, we cannot
say the judge's denial of an evidentiary hearing on
this claim was manifestly erroneous. (People v.
Griffin (1985), 109 Ill.2d 293, 303 [93 Ill.Dec.
774, 487 N.E.2d 599]; People v. Bracey (1972),
51 Ill.2d 514 [283 N.E.2d 685].) If a juror did
comment to other jurors that the defendant was a
bad person, it must, however, be presumed, absent a
showing to the contrary, that they jury followed
the court's instructions in reaching a verdict.
Too, the defendant confessed before the jury that
he had killed the two women; his mother had
testified that she and the defendant's sister had
been raped by the defendant. We can be certain that
the juror's remark, if made, did not affect the
jury's appraisal of the defendant's character.
People v. Silagy, 116 Ill.2d 357, 366-67, 107 Ill.Dec. 677,
507 N.E.2d 830 (1987).
Again, because there is ample basis in the record, the court
finds itself bound to accept the factual findings of the
Illinois Supreme Court.
Finally, Silagy argues that the jury's sentencing verdict was
affected by consideration of off-the-record, inaccurate
information regarding the punishment he would receive if the
jury did or did not impose the death penalty. Silagy claims
that the jury discussed that if sentenced to life imprisonment
he would serve only five to seven years in prison. If the jury
imposed the death penalty, on the other hand, he would never be
executed but would remain incarcerated for longer than seven
In the post-conviction case, the Illinois Supreme Court found
that this claim was also properly dismissed on the ground that
"affidavits or testimony to show `the motive, method, or
process by which the jury reached its verdict' is not
admissible." People v. Silagy, 116 Ill.2d at 367, 107 Ill.Dec.
677, 507 N.E.2d 830 (citations omitted).
Federal Rule of Evidence 606(b) also supports that position.
Upon an inquiry into the validity of a verdict or
indictment, a juror may not testify as to any
matter or statement occurring during the course of
the jury's deliberations or to the effect of
anything upon that or any other juror's mind or
emotions as influencing the juror to assent to or
dissent from the verdict or indictment or
concerning the juror's mental processes in
connection therewith, except that a juror may
testify on the question whether extraneous
prejudicial information was improperly brought to
the jury's attention or whether any outside
influence was improperly brought to bear upon any
juror. Nor may a juror's affidavit or evidence of
any statement by the juror concerning a matter
about which the juror would be precluded from
testifying be received for these purposes.
The discussions about the number of years Silagy would actually
serve if he were sentenced to life imprisonment rather than
being sentenced to death were not based on extraneous matter
but were rather based on a juror's erroneous ideas. The jurors
were talking about whether or not the
death penalty would be justified in this case. The fact that
they discussed what they thought the actual result would be
were Silagy sentenced to life imprisonment rather than
execution, does not invalidate the proceeding.
Accordingly, this ground for habeas relief is denied.
WAIVER OF COUNSEL AND MITIGATING EVIDENCE AT CAPITAL
1. Silagy alleges that he was not mentally competent either
to waive his constitutional right to counsel or to represent
himself at the sentencing proceeding or to decide not to offer
mitigating evidence at the sentencing proceeding.
With respect to his waiver of counsel at the sentencing
proceeding, the Illinois Supreme Court determined that Silagy
was competent. Responding to Silagy's suggestion that the
extreme stress resulting from the trial might have triggered
anxiety neurosis so that he was not competent to make an
intelligent waiver of counsel, the Illinois Supreme Court
Immediately after the defendant had been found
guilty of the offenses charged, he asked that he
be allowed to proceed without counsel. The court
allowed the defendant to reconsider his request
overnight. The following day he again made the
request and the court questioned the defendant.
This examination included:
"THE COURT: Do you think you understand the
severity of this, and do you understand what you
are doing? Do you think you understand what the
actual circumstances are?
THE DEFENDANT: Yes, sir.
THE COURT: You've thought about this for some
time, have you?
THE DEFENDANT: Yes.
THE COURT: Have you discussed this with your
attorney, that this is what you want to do?
THE DEFENDANT: Yes, I have very thoroughly.
THE COURT: And you feel this is the way you
want to proceed?
THE DEFENDANT: Yes, sir.
THE COURT: Does Counsel have anything else
that they think that this defendant should be
COUNSEL: No, your Honor."
It was explained to the defendant that his
attorneys would continue to sit at the counsel
table and advise him as to how to proceed, but
that all decisions would be made by him and that
his attorneys would not address the court without
the defendant's consent. The defendant's request
to proceed without counsel was "due to the fact
that their ethics of law, I would not ask them to
go against their work. It was my decision to carry
out what will happen." The defendant then stated
that his decision was made freely and voluntarily
without threats, promises, or coercion. The court
made this finding:
"[t]hat the Defendant is a responsible person
who is under no mental disability and who is
knowingly, intelligently, and understandingly,
electing to proceed in his defense as he
suggested. The court further finds that the
Defendant understands the nature of the charges
for which he's been convicted, the seriousness
of the possible penalties in the case, and has
freely and voluntarily undertaken to act as his
own attorney with assistance from his Counsel
who are present at all times whenever he
requested that Counsel for any assistance from
Do you have any objections to that statement,
THE DEFENDANT: No, Your Honor.
THE COURT: That is a true statement?
THE DEFENDANT: It is a true statement.
THE COURT: At this time the Court will rule
that the Defendant has a right to proceed as he
has requested representing himself with his
attorneys advising him in any respect he wishes.
And the attorneys can participate and perform
all the usual functions
as Defense Counsel as requested by the defendant
or not participate as directed by the Defendant
from time to time."
People v. Silagy, 101 Ill.2d 147
, 176-78, 77 Ill.Dec. 792,
461 N.E.2d 415
(1984). In disposing of a related claim, the
Illinois Supreme Court stated further:
It is clear that the sixth amendment to the
Constitution of the United States (U.S. Const.,
amend. VI) provides for the right of self-
representation in criminal proceedings.
(Faretta v. California (1975), 422 U.S. 806, 45
L.Ed.2d 562, 95 S.Ct. 2525; see also, Ill. Const.
1970, art. I, sec. 8.) The "`right of a defendant
to represent himself, when his choice is
intelligently made, is as basic and fundamental as
his right to be represented by counsel.'" (People
v. Nelson (1971), 47 Ill.2d 570, 574
[268 N.E.2d 2]; People v. Bush (1965), 32 Ill.2d 484, 487
[207 N.E.2d 446].). . . . Although a court may consider
his decision unwise, if it is freely, knowingly and
intelligently made, that decision must be accepted
out of "that respect for the individual which is
the lifeblood of the law." Illinois v. Allen
(1970), 397 U.S. 337, 350-51, 25 L.Ed.2d 353, 363,
90 S.Ct. 1057, 1064 (Brennan, J., concurring).
The record shows that the trial court fully
informed the defendant of the relevant substantive
and procedural law involved. The defendant was
informed of the possible sentencing alternatives.
His decision was made after consultation with his
attorneys. He was obviously aware of the
possibility of being sentenced to death, since
that was the punishment he requested. The record
is clear that Silagy's decision to discharge his
counsel was knowingly and intelligently made.
There is no suggestion that the defendant was
suffering any impairment of reasoning ability at
the time of his waiver of counsel. He showed
understanding of the law, asked intelligent
questions, and did not demonstrate any of the
symptoms which he said had accompanied the
disturbed episodes that he described. Dr. Ziporyn,
who testified for the defendant, reported that he
understood the nature of the charge and could
cooperate with his attorney. The jury had found he
was not insane at the time of the murders. The
defendant's attorneys did not advise the trial
court of any indication of an inability of the
defendant to make a rational decision concerning
the discharge of counsel, as the attorneys would
have had a duty to do. The reasons the defendant
expressed for discharging his attorneys and
desiring a sentence of death were not irrational
(he feared their ethical duty prevented them from
carrying out his wishes to be given a death
sentence, and he wished to be sentenced to death
because of feelings of guilt and remorse, a desire
to spare his parents from further agony because of
his conduct, his dread of confinement in the
penitentiary, and a desire to die with grace and
dignity). There simply is no showing that Silagy
was suffering under a reactive psychosis at trial
or was otherwise mentally incapable of making an
intelligent waiver of counsel. We note, too, that
even Dr. Ziporyn testified that the defendant did
not suffer a loss of intellectual function during
his periods of disturbance.
Id. 101 Ill.2d at 179-81, 77 Ill.Dec. 792, 461 N.E.2d 415
This court is bound by the factual determinations of the
Illinois Supreme Court unless the record shows that there is no
basis for such determinations. The record shows ample basis for
the Illinois Supreme Court's conclusion that Silagy's
competence to waive counsel at the sentencing proceeding was
made knowingly and intelligently.
Because it has been determined that Silagy's waiver of
counsel was knowingly and intelligently made, it follows that
his waiver of mitigating evidence at the sentencing proceeding
was also knowingly and intelligently made.
The petitioner now argues that there were various
alternatives by which all available mitigating evidence could
have been presented to his sentencing jury. He suggests that:
stand-by counsel could have
argued mitigating evidence; the court could have called its own
witnesses; the court could have appointed a special counsel to
present mitigating evidence; or the court could have admitted
a presentence investigation report into evidence. Adopting one
of these alternatives, Silagy says, would have allowed the
sentencing jury to perform its constitutionally mandated
function of assuring that the penalty of death is appropriate
Silagy argues that any of these alternatives would have
coalesced perfectly with the law in this jurisdiction and cites
United States v. Taylor, 569 F.2d 448, 452 (7th Cir.), cert.
denied, 435 U.S. 952, 98 S.Ct. 1581, 55 L.Ed.2d 803 (1978), for
the proposition that:
[F]aretta holds that an accused has a
constitutional right to dispense with the
assistance of counsel and to conduct his defense
personally. It does not inevitably follow, however,
that this right of self-representation comprehends
any correlative right to preclude the trial court
from appointing counsel and authorizing him to
participate in the trial over the accused's
objection in order to protect the public interest
in the fairness and integrity of the proceedings.
The facts of Taylor, however, are readily distinguishable from
those in the present case. In Taylor the court appointed
standby counsel to assist a pro se defendant at trial who had
previously indicated that he felt unqualified to put on his own
defense. Id. at 451. It was only after the defendant stated,
and it became clear, that he would take no part in the
proceedings, that the trial court lifted its initial ban on
appointed counsel's participation. It was following the
recitation of these facts that the Taylor court made the above
quoted statement. In the present case, however, Silagy never
indicated that he believed himself to be unqualified, and
rather than refusing to participate in the sentencing
proceedings, he dismissed counsel so as to be able to
More importantly, the court finds that the petitioner's
argument that the court should have employed alternative means
to present mitigating evidence collides squarely with the
reasoning of Faretta v. California, 422 U.S. 806, 95 S.Ct.
2525, 45 L.Ed.2d 562 (1974). In Faretta, the Supreme Court
observed initially that there existed a "nearly universal
conviction, on the part of our people as well as our courts,
that forcing a lawyer upon an unwilling defendant is contrary
to his basic right to defend himself if he truly wants to do
so." Id. at 817, 95 S.Ct. at 2532. Faretta also noted that the
structure of the Sixth Amendment supports the right of
self-representation: This amendment "does not provide merely
that a defense shall be made for the accused; it grants to the
accused personally the right to make his defense." Id. at 819,
95 S.Ct. at 2533.
The Supreme Court was aware that in most criminal cases
defendants could present a better defense with the help of
counsel than without it. The Court, however, explicitly refused
to allow this fact to undercut a defendant's right to proceed
The right to defend is personal. The defendant,
not his lawyer or the State, will bear the
personal consequences of a conviction. It is the
defendant, therefore, who must be free personally
to decide whether in his particular case counsel
is to his advantage. And although he may conduct
his own defense ultimately to his own detriment,
his choice must be honored out of "that respect
for the individual which is the lifeblood of the
law." (Citation omitted.) (Brennan, J.,
Id. at 834, 95 S.Ct. at 2540.
Under Faretta and its progeny, exercise of the Sixth
Amendment right to self-representation is unqualified before
the trial begins. Faretta at 818-21, 95 S.Ct. at 2532- 34;
United States v. Brown, 744 F.2d 905, 908 (2nd Cir.), cert.
denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984).
Once the trial is in progress, the judge may curtail the right
upon finding that the legitimate interests of the defendant are
outweighed by potential disruption of the proceedings already
in progress. United
States v. Brown, 744 F.2d at 908; United States v. Wesley,
798 F.2d 1155, 1155, (8th Cir. 1986). There are no allegations and
the record contains no evidence that Silagy's presentation to
the sentencing jury was in any way disruptive of the
Additionally, the Seventh Circuit has rejected the notion
that the court should intervene if it becomes apparent that the
pro se litigant is unable to defend himself. In United States
v. Moya-Gomez, 860 F.2d 706, 741 (1988), the court adopted the
reasoning of the Sixth Circuit in United States v. McDowell,
814 F.2d 245 at 251 (6 Cir. 1987):
The only thing that was "unfair" about McDowell's
trial was that he did not represent himself very
well. . . . However, as the Supreme Court stated
in Faretta, "whatever else may or may not be open
to him on appeal, a defendant who elects to
represent himself cannot thereafter complain that
the quality of his own defense amounted to a denial
of `effective assistance of counsel.'" (Citation
omitted.) We think this logic applies equally to
preclude the instant "fair trial" claim. The
district court accorded McDowell his full
constitutional rights at trial. (Citation omitted.)
Based on the foregoing, this claim also fails.
CONSIDERATION OF PSYCHIATRIC TESTIMONY IN PHASE TWO OF CAPITAL
The petitioner alleges that neither he nor his attorneys were
informed that the psychiatric testimony used at trial to rebut
the defense of insanity would be used by the State in phase two
of the capital sentencing proceeding as aggravating factors to
be weighed in determining whether the death penalty should be
imposed. Silagy says this denied his Fifth Amendment right not
to incriminate himself and his Sixth Amendment right to the
effective assistance of counsel. In support of his position,
the petitioner relies on the Supreme Court's decision in
Estelle v. Smith, 451 U.S. 454
, 101 S.Ct. 1866, 68 L.Ed.2d 359
(1981). In Estelle v. Smith, the Court considered whether:
[T]he admission of [a psychiatrist's] testimony at
the penalty phase violated respondent's Fifth
Amendment privilege against compelled
self-incrimination because respondent was not
advised before the pretrial psychiatric examination
that he had a right to remain silent and any
statement he made could be used against him at a
Id. at 461, 101 S.Ct. at 1872. The Court held that the Fifth
Amendment privilege against self-incrimination applied to the
unwarned statements that the respondent made to the court-
appointed psychiatrist. Id. at 463, 101 S.Ct. at 1873.
The petitioner acknowledges that the holding in Estelle v.
Smith "was limited to the situation where the criminal
defendant neither initiated a psychiatric evaluation nor
introduced any psychiatric evidence at trial. Estelle v. Smith,
451 U.S. at 468 [101 S.Ct. at 1875]." (Page 131, Petitioner's
Memorandum in Support of Petition for Writ of Habeas Corpus.)
Nonetheless, he argues that subsequent cases have held that
"the fact that the defense requested the examination does not
obviate the necessity for giving the Miranda warnings where the
defense did not request . . . an examination on the question of
future dangerousness." Battie v. Estelle, 655 F.2d 692, 702
(5th Cir. 1981); Accord Booker v. Wainwright, 703 F.2d 1251,
1256 (11th Cir.), cert. denied, 464 U.S. 922, 104 S.Ct. 290, 78
L.Ed.2d 266 (1983). See Petitioner's Memorandum, p. 131.*fn2
Both Estelle v. Smith and Battie v. Estelle arose under the
Texas death penalty statute that requires the jury to assess
the defendant's future dangerousness. Estelle v. Smith, 451
U.S. at 457-58, 101 S.Ct. at
1870-71. In Texas, because the state must prove future
dangerousness beyond a reasonable doubt in a death penalty
proceeding, the involuntary, unwarned statements to the court-
appointed psychiatrist violate the Fifth Amendment. But in
Illinois, future dangerousness is not an element of the state's
case for the availability of death as a penalty. Ill.Rev.Stat.
ch. 38, ¶ 9-1(b). In Silagy's case the jury did not consider
the psychiatrists' testimony in deciding whether death was an
Finally, and what is determinative on this issue, the court
notes that "volunteered statements . . . are not barred by the
Fifth Amendment. . . ." Estelle v. Smith, 451 U.S. at 469, 101
S.Ct. at 1876. Silagy voluntarily allowed the psychiatrists'
testimony to be considered at the death penalty hearing. Record
at 919. Accordingly, the court concludes, based on the above
discussion, that the petitioner's Fifth Amendment rights were
not violated by the use of the psychiatrists' testimony at the
death penalty hearing.
With regard to the petitioner's Sixth Amendment claim, the
court notes that it was never presented to the Illinois courts.
The petitioner has not shown cause and prejudice for that
procedural default. See Wainwright v. Sykes, 433 U.S. 72, 97
S.Ct. 2497, 53 L.Ed.2d 594 (1977).
Accordingly, this ground also fails.
The petitioner also advances two additional grounds for
habeas relief which have no merit but should be mentioned.
First, at the time Silagy asked to be given the death penalty,
the method of execution in Illinois was by electrocution.
Subsequent to Silagy's sentencing, the method of execution was
changed to lethal injection. The petitioner claims that lethal
injection is a cruel and unusual punishment. There is nothing
in the record that supports that contention. The Eighth
Amendment does not guarantee a convicted defendant the right to
select the method by which punishment will be inflicted.
Second, the petitioner says that erroneous information was
put before the jury that the victims were sisters. The source
of that erroneous fact seems to be Silagy's confession in which
he referred to the victims as sisters. This claim of error was
never presented to the state court and there is no support in
the record that there was cause for that default or that the
petitioner was prejudiced by reference to the victims as
sisters. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497,
53 L.Ed.2d 594 (1977).
Both these claims fail.
CONSTITUTIONALITY OF ILLINOIS STATUTE
The Illinois death penalty statute provides that the sentence
of death may be considered only "where requested by the State."
Ill.Rev.Stat. ch. 38, § 9-1(d) (1979). This means that only
where the local state's attorney asks the court to consider
imposition of the death penalty will the court hold a
sentencing proceeding in which that penalty may be imposed.
Four Justices of the Illinois Supreme Court have joined in
writing that the statute violates the provisions of the Eighth
Amendment to the federal Constitution. People ex rel. Carey v.
Cousins, 77 Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809 (1979)
(Ryan, J., Goldenhersh, C.J., and Clark, J. dissenting), cert.
denied, 445 U.S. 953, 100 S.Ct. 1603, 63 L.Ed.2d 788 (1980);
People v. Lewis, 88 Ill.2d 129, 58 Ill.Dec. 895,
430 N.E.2d 1346 (1981) (Simon, J., dissenting), cert. denied, ___ U.S.
___, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988). Those dissents
constitute an articulate and persuasive statement of the basis
for holding the Illinois statute unconstitutional under the
Eighth Amendment. The dissents contain an exhaustive discussion
of the controlling United States Supreme Court precedents. This
court cannot improve upon those statements and discussions and
therefore embraces and adopts them as its own. Justice Ryan
points up specifically how the Illinois statute allows
arbitrary and capricious imposition of the death penalty.
The risk of arbitrary and capricious action under section 9-
1(d) is most vividly demonstrated by the case of People v.
Greer, [79 Ill.2d 108, 37 Ill.Dec. 313, 402 N.E.2d 203 (1980)]
Docket No. 51214, which was only recently argued before this
court. In that case the prosecutor requested the penalty
hearing, and the death penalty was imposed upon the defendant.
At oral argument before this court, the Attorney General
confessed error and stated that this is not a case in which the
death penalty should be imposed. Furthermore, this court was
informed in oral argument that the State's Attorney who had
prosecuted the case is no longer in office and that his
successor agrees with the Attorney General. Greer's case
clearly shows that because of the lack of adequate guidelines
the decision to request or not to request a penalty hearing
will, to a great degree, depend upon the whim of the individual
prosecutor. Without legislatively enacted guidelines, the
differences in prosecutors, though they be sincere in their
beliefs, will inevitably lead to arbitrary and capricious
action. Fortunately, this court is in a position to correct an
unauthorized imposition of the death penalty. However, the
statute may well be rendered arbitrary and capricious in its
application by the fact that many prosecutors, in the exercise
of unguided discretion, will not request a penalty hearing,
whereas other prosecutors, faced with the same set of facts,
will request such a hearing, and the death penalty may be
In Gregg v. Georgia, Mr. Justice Stewart stated:
"Because of the uniqueness of the death penalty,
Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972)] held that it could not be
imposed under sentencing procedures that created a
substantial risk that it would be inflicted in an
arbitrary and capricious manner * * *.
Furman mandates that where discretion is afforded
a sentencing body on a matter so grave as the
determination of whether a human life should be
taken or spared, that discretion must be
suitably directed and limited so as to minimize
the risk of wholly arbitrary and capricious
action." (Emphasis added.) (Gregg v. Georgia
(1976), 428 U.S. 153, 188-89, 49 L.Ed.2d 859,
883, 96 S.Ct. 2909, 2932.)
Our statute contains no directions or guidelines
to minimize the risk of wholly arbitrary and
capricious action by the prosecutor in either
requesting a sentencing hearing or in not
requesting a sentencing hearing. The vague belief
of the majority that the State's Attorney will not
request such a hearing unless he believes that
there will be evidence which will persuade a jury
that the requisite elements for a death sentence
exist is meaningless. Such belief, although the
prosecutor may be sincere, will not "minimize the
risk of wholly arbitrary and capricious action"
unless the exercise of discretion by the
prosecutor is aided, directed and limited by
guidelines prescribed by the legislature.
People v. Cousins, 77 Ill.2d at 558-69, 34 Ill.Dec. 137,
397 N.E.2d 809 (Ryan, J., dissenting).
The lack of an adequate notice provision in the statute as to
when the death penalty will be sought is also a constitutional
defect. It affects the defendant's right to effective counsel
as well as his right to basic due process. The prosecutor may
withhold the decision to seek the death penalty until after a
finding of guilt has been returned. Ill.Rev.Stat. ch. 38, ¶
9-1(d) (1979). A lawyer and a defendant need to know as soon as
possible whether the death penalty will be sought. That
knowledge affects their decisions on what type of defense will
be made, what plea bargaining can be done, and whether a jury
trial should be waived. See People ex rel. Carey v. Cousins, 77
Ill.2d at 560-61, 34 Ill. Dec. 137, 397 N.E.2d 809 (Ryan, J.
In summary, none of the claims raised as grounds for habeas
relief has merit, with the exception of the one challenging the
constitutionality of the Illinois death penalty
statute. For the reasons stated in this order, that claim has
merit and the statute violates the precepts of the Eighth and
Fourteenth Amendments to the United States Constitution.
IT IS ORDERED that a writ of habeas corpus issue in this case
vacating the petitioner's sentence of death. The State has 120
days to resentence the petitioner, or he shall be
On the court's own motion, the execution of this order is
stayed pending appeal by the parties.