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August 30, 1989

MICHAEL LANE, et al., Respondents

Suzanne B. Conlon, United States District Judge.

The opinion of the court was delivered by: CONLON


 Frank Alerte, Jr. petitions for habeas corpus relief under 28 U.S.C. § 2254. Alerte is in the state penitentiary serving a 30 year sentence for murdering a fellow-student at DePaul University. His conviction was affirmed on direct appeal. People v. Alerte, 120 Ill. App. 3d 962, 458 N.E.2d 1106, 76 Ill. Dec. 452 (1st Div. 1983). The Illinois Supreme Court denied Alerte leave to appeal. It is undisputed that Alerte exhausted his state remedies.

 Alerte contends that he was denied a fair trial and due process of law as the combined result of the prosecutors' closing arguments and the trial judge's refusal to instruct the jury on the consequences of a verdict of not guilty by reason of insanity. For the reasons that follow, the petition is granted.


 The state's principal argument is that Alerte's due process and fair trial claim is barred because in his direct appeal, he

raised the above claim as a matter of mere trial court error and did not rely on the federal constitution in any way, shape or form . . . [and he] has procedurally defaulted any right to raise this claim.

 Respondents' memo. at 3. The state's argument is predicated on the rule that a habeas petitioner must provide the state courts with a fair opportunity to apply constitutional principles and to correct any constitutional error committed by the trial court. United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir. 1984).

 In the brief Alerte submitted to the state appellate court, however, he contended that he

. . . should be granted a new trial because both prosecutors repeatedly commented on matters not material to the question of guilt or innocence in their arguments to the jury. As a whole, the prosecution's arguments manifest a deliberate attempt to prejudice and inflame the jury and to divert the jurors' attention from the closely contested issue of defendant's sanity. These statements infringed upon defendant's State and Federal right to a trial by jury and denied defendant due process of law. (U.S. Constitution, Amendments 6 & 14 ; Illinois Constitution, Article 1 sec. 13.)

 Exhibit to petitioner's response to answer at 59 (emphasis supplied). Here, Alerte contends that the same prosecutorial statements in closing arguments, combined with the trial court's failure to sustain objections to these improper statements and failure to give a curative instruction, deprived him of a fair trial and due process of law in violation of the sixth and fourteenth amendments of the United States Constitution. Petition at paras. 37-45.

 The state belatedly recognizes that Alerte adequately asserted the deprivation of a federal constitutional right in the state appellate court with respect to his claim of prosecutorial misconduct. Respondents' reply at 11. However, the state misdefines this habeas petition to include only the trial court's failure to instruct the jury about the consequences of an acquittal by reason of insanity. Id. This is not a fair or reasonable reading of the petition. Quoted prejudicial and inflammatory prosecutorial statements are central to the petition; the failure to give an instruction that would have dispelled or ameliorated the prejudicial impact of the improper prosecutorial comments is an aggravating circumstance that supports the federal constitutional claim asserted. Petition at para. 45. The state appellate court had a fair opportunity to apply constitutional principles to substantially the same claim presented here and to correct any constitutional error. The fact that Alerte may have organized his arguments differently in his state appeal is insignificant. The issues he raises now were raised in his direct appeal, however articulated. Accordingly, the state's procedural default argument lacks merit.


 This court is bound by 28 U.S.C. § 2254(d) to presume the factual issues determined by a state court are correct. Sumner v. Mata, 449 U.S. 539, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1981). The state appellate court's summary of the facts serve as the basis for review. Smith v. Fairman, 862 F.2d 630, 632 (7th Cir. 1988), cert. denied, 490 U.S. 1008, 109 S. Ct. 1645, 104 L. Ed. 2d 160 (1989).

 Although there were no eyewitnesses to the murder, the state presented substantial circumstantial evidence placing Alerte with the victim at the time of death. Shortly before the murder, Alerte was seen pacing outside a school dormitory with an envelope or papers in his hands. Alerte then walked inside and sat down near where the victim was playing ping-pong without saying hello and began looking through the papers with a pensive expression. Alerte was later seen supporting the victim against the exterior wall of a dormitory near the bushes where the victim's body was found. Alerte was also seen leaving the area quickly with his left hand pushing something that appeared to be a weapon into his pocket. A medical examiner for Cook County testified that the victim died from 25 stab wounds to the back, head and chest. Alerte was arrested later that evening; he gave an exculpatory statement and answered questions in a coherent and intelligent manner.

 At trial, Alerte relied almost entirely on a defense of insanity, presenting in detail his long history of psychiatric treatment and hospitalizations and his continued pattern of violent, assaultive behavior. Alerte's mother testified that when her son was five years old, she sought help for him from a child psychiatrist upon the recommendation of his school psychologist. Alerte was eventually dismissed from the school due to his aggressive behavior. Alerte's mother testified that he was expelled from six schools due to behavior problems, he saw at least a dozen psychiatrists and psychologists, he spent time in at least six mental hospitals and ran away from home repeatedly. His mother and other defense witnesses described specific violent incidents: Alerte struck a grade school classmate with a rock, hit a neighbor's son with a hammer, set fire to his house, attacked a young man he had never met before on a train platform, struck a co-worker over the head with a metal pipe, and stuck a knife in the back of a woman hired to care for Alerte's younger brother. Other witnesses testified about incidents when Alerte behaved violently or aggressively and seemed like a different person: his facial expression changed, his strength doubled, showing no remorse and offering no explanation.

 Each side produced two expert witnesses on the issue of sanity. Alerte called Dr. Frederic A. Gibbs, an expert in the field of epilepsy and electroencephalography, who testified that he first met Alerte in 1965 when Alerte was 11. At that time, Dr. Gibbs administered and read Alerte's electroencephalogram (EEG), which was abnormal and revealed a type of seizure activity in the part of the brain that controls emotions. Dr. Gibbs stated that this type of abnormality does not produce convulsions; two percent of the population with this abnormality have rage attacks during which they cannot control their actions or exercise normal judgment. Based on Alerte's EEG and history, Dr. Gibbs believed Alerte suffered from this condition. Alerte's 1969 EEG, administered and read by Dr. Gibbs, showed the same abnormality with some improvement. However, on that day Alerte suddenly grabbed Dr. Gibbs' necktie and, with a display of unusual strength, dragged Dr. Gibbs toward an open window. A friend of Dr. Gibbs grabbed Alerte and helped quiet him down. In Dr. Gibbs' opinion, this incident was a rage attack. According to Dr. Gibbs, epileptics and people who have rage attacks may have normal EEGs. Following a normal EEG in 1977, Dr. Gibbs referred Alerte to Dr. Frank Lorimer. Dr. Lorimer, a psychiatrist, testified that Alerte suffered from limbic epilepsy, a category of epilepsy gaining medical recognition. Limbic epilepsy is characterized by rage attacks and blackouts. Dr. Lorimer testified that at the time of the murder, Alerte was undergoing a distinct rage attack that prevented him from appreciating the criminality of his behavior or conforming his conduct to the requirements of the law.

 In rebuttal, the state called Dr. John Hughes, a specialist in electroencephalography and epileptology. Dr. Hughes found one of Alerte's five EEGs considered abnormal by Dr. Gibbs as normal. Dr. Hughes testified that Dr. Lorimer's diagnosis did not appear in the manual containing acceptable psychiatric diagnoses and that limbic epilepsy is not a term commonly understood and agreed upon by the world neurological community. Dr. Robert Reifman, a psychiatrist for the Circuit Court of Cook County, testified that Alerte did not suffer from any mental disease or defect at the time of the murder. Dr. Reifman diagnosed Alerte as having a narcissistic personality that is consistent with problems in school and violent episodes. In Dr. Reifman's opinion, Alerte's personality disorder did not prevent Alerte from appreciating the criminality of his conduct or conforming his conduct to the requirements of the law.

 During closing arguments, the prosecutor described Alerte's insanity defense as a fraud and opined concerning Dr. Lorimer that "he is to me the epitome of what criminal defenses can be brought down to in the criminal justice system." R. 1141. Defense counsel did not object until the prosecutor described the effect of a finding of insanity.

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