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April 29, 1989


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.

    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 abridged.

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 unusual punishment.

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.


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 resolved.

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 argument.

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 (1979).

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 that:

  [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 ...

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