The opinion of the court was delivered by: MARVIN E. ASPEN
MARVIN E. ASPEN, District Judge:
The petitioner, James P. Free, Jr., is confined in the Pontiac Correctional Center's condemned unit and has filed this petition for habeas relief pursuant to 28 U.S.C. 2254, seeking relief from both his conviction and death sentence. For the reasons that follow, we deny Free's petition for relief from his conviction and grant him relief from his death sentence.
I. Factual Background and Procedural History
In the early morning hours of April 24, 1978, Free entered the M-2 Service Center, an all-night keypunch business located in Glen Ellyn, Illinois. Carrying a gun and a cloth bag, he encountered the only other people in the office at that time: two employees, Bonnie Serpico and Lori Rowe. Free ordered them into a back room, then forced them at gunpoint into the lunchroom, had them lie down, and told them he was going to rape them. Free bound Rowe's hands and feet with twine he had removed from the bag he was carrying, and then led Serpico into another room where he had her remove her clothes. In the meantime, Free returned to check on Rowe and found that she had managed to loosen the ropes around her hands and feet. He became angry and yanked the rope, pulling her sideways until she fell on her side. Meanwhile, Serpico got up and began to run away. Free ran back to the other room and shot Serpico. He then returned to the lunchroom, shot Rowe, and fled the building. After he fled, Rowe managed to crawl to a phone and call the police who arrived 15 minutes later. Serpico died due to severe blood loss from the gunshot wound.
Free was apprehended the next morning. On June 22, 1979, he was convicted of murder, attempted murder, and two counts of attempted rape. The prosecution then formally requested a capital sentencing hearing on the murder conviction, and Free submitted his jury request. In August 1979, the trial court conducted the capital sentencing hearing on the murder conviction. The jury found that Serpico was killed during the course of a rape and a burglary and that no mitigating factors existed sufficient to preclude imposition of the death sentence. The trial judge accordingly entered judgment sentencing Free to death.
On January 24, 1983, the Illinois Supreme Court affirmed Free's conviction and sentence. People v. Free ("Free I "), 94 Ill. 2d 378, 447 N.E.2d 218, cert. denied, 464 U.S. 865, 104 S. Ct. 200, 78 L. Ed. 2d 175 (1983). Free subsequently filed two separate petitions for post-conviction relief in the Illinois state courts. The trial court dismissed each petition and the Illinois Supreme Court affirmed each dismissal. People v. Free ("Free II "), 112 Ill. 2d 154, 492 N.E.2d 1269, 97 Ill. Dec. 396 , cert. denied, 479 U.S. 871, 107 S. Ct. 246, 93 L. Ed. 2d 170 (1986); People v. Free ("Free III "), 122 Ill. 2d 367, 522 N.E.2d 1184, 119 Ill. Dec. 325 , cert. denied, 488 U.S. 872, 109 S. Ct. 190, 102 L. Ed. 2d 159 (1988). Having exhausted all available state remedies in satisfaction of 28 U.S.C. 2254(b), Free filed this habeas petition raising 21 separate grounds for relief (individually designated as "Ground "). Illinois has stayed execution pending the final disposition of this petition. To the extent necessary, we shall set forth additional facts that may be relevant to individual issues raised by Free's petition.
II. Issues Resolved by or Related to Silagy and Williams
Notwithstanding any waiver arguments that might also apply, ten of Free's challenges to the constitutionality of the Illinois death sentencing scheme would appear either to be governed by or to have recently been resolved by the Seventh Circuit in Silagy v. Peters, 905 F.2d 986 (7th Cir. 1990), cert. denied, 111 S. Ct. 1024, 112 L. Ed. 2d 1106 (1991), and by this court in Williams v. Chrans, 742 F. Supp. 472 (N.D. Ill. 1990), aff'd, 945 F.2d 926 (7th Cir. 1991). In Silagy, the Seventh Circuit specifically rejected the arguments that the Illinois death penalty statute and jury instructions unconstitutionally impose a presumption in favor of death (Ground 5) and shift the burden of proof to the defendant to overcome that presumption (Ground 6). Silagy, 905 F.2d at 997-99. Drawing upon that holding, we rejected the related argument that the failure of the Illinois sentencing scheme to assign a specific standard of proof as to the ultimate issue renders the scheme unconstitutional (Ground 14). Williams, 742 F. Supp. at 499-500. We additionally rejected the argument that the statute is unconstitutionally vague and fails to narrowly channel and guide the sentencing authority's discretion, thereby creating the impermissible risk that the death sentence will be imposed arbitrarily and capriciously (Ground 10). Id. at 500.
Further, the Seventh Circuit has concluded that the scheme is not unconstitutional for its failure to require written findings by the sentencing body setting forth any unspecified aggravating factors upon which it may have relied in reaching its decision to impose the death penalty (Ground 13). Silagy, 905 F.2d at 1000-01; cf. Williams, 742 F. Supp. at 501 n.41. Nor is the scheme unconstitutional for its failure to provide for comparative review of death sentences (Ground 15). Silagy, 905 F.2d at 999-1000.
The Seventh Circuit has also upheld the death penalty scheme against three specific challenges to the prosecution's power to request a sentencing hearing: (1) that the prosecutor's discretion to seek the death penalty under the statute is standardless (Ground 2); (2) that the ability of the prosecutor to exercise such discretion under the statute vests in the prosecutor the judicial function of determining the appropriate sentence (Ground 8); and (3) that the statute fails to provide for adequate notice to a defendant that the state will seek the death penalty and will present certain aggravating factors (Ground 7). Id. at 990-94. But see Daniel S. Reinberg, Comment, The Constitutionality of the Illinois Death Penalty Statute: The Right to Pretrial Notice of the State's Intention to Seek the Death Penalty, 85 Nw. U.L. Rev. 272 (1990).
Finally, in Williams we considered and rejected the argument that it was a denial of due process when three of the members of the Illinois Supreme Court upheld the constitutionality of lllinois' death penalty scheme by adhering to the common law doctrine of stare decisis rather than their expressed conclusions that the statute was unconstitutional (Ground 9). Williams, 742 F. Supp. at 502.
Concerning Grounds 2, 8-9, 13, and 15, Free has advanced no arguments in support of his challenges other than those which have previously been considered by the Seventh Circuit or by us. Accordingly, Free is not entitled to habeas relief on these grounds. Free has, however, raised a few additional matters with respect to Grounds 5, 6, 7, 10 and 14, which merit further consideration.
Regarding Grounds 5, 10 and 14, while Free's general arguments remain substantially the same as those rejected by the Seventh Circuit in Silagy and by this court in Williams, Free now proffers empirical evidence that has recently come to light which he claims factually refutes the judicial assessment in those decisions as to whether jurors are properly guided by the semantics of the statute. The evidence consists of a juror survey that was conducted in April 1990 by Professor Hans Zeisel and an affidavit by Professor Zeisel interpreting the results of that survey. Reply Exhibits G and H. This evidence was neither proposed, nor available for consideration either by the Seventh Circuit in Silagy or by us in Williams. If statistically reliable and unbiased, the results of the survey, as interpreted by Professor Zeisel, do call into question the empirical assumptions as to juror comprehension which served as the predicate to the rulings in both of those cases.
Thus, the question we face is whether it is appropriate to consider such evidence as a means of supplanting those prior rulings. Although Free cites no case law on the question, he makes the compelling argument that a finding, which turns on how jurors comprehend the law they are told to apply, should be based if possible on substantial evidence rather than judicial speculation. Indeed, this very logic seems to have driven such landmark decisions as Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). At trial in several of the cases consolidated in Brown, several psychiatrists and social scientists testified as to the harmful effects of state-imposed segregation on black children. On appeal, appellants submitted a statement to this effect signed by 32 sociologists, anthropologists, psychologists, and psychiatrists who worked in the area of American race relations.
The Court most certainly drew upon this information as a substantial basis for overruling Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). See Brown, 347 U.S. at 494, 74 S. Ct. at 692 ("Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority.") (citations omitted).
Free has made a showing that he can adduce such evidence. Free thus places his challenge in a slightly different posture than that of the petitioners in Silagy and Williams.
Aside from simply citing to Silagy and Williams as controlling law, the respondents' only substantive objection to the consideration of this evidence is that it sheds no light on the question whether in Free's particular case the law was properly applied.
That proposition, however, is not relevant to the particular challenges that Free has raised, and in any event, the proposition is not correct. The evidence is being offered to establish a basis for invalidating certain aspects of the statutory scheme under which Free was sentenced. Yet, if the statute is invalidated on the grounds asserted, that would also call into question the constitutional reliability of the sentence Free received. It is conceivable that evidence of the sort proffered by Free may alter our assessment as to whether jurors are likely to misinterpret the statutory language and instructions in a manner that creates an impermissible risk that a death sentence will be arbitrarily imposed or that diminishes the jury's power to spare a defendant's life on any mitigating factor. See Williams, 742 F. Supp. at 498 (citing Gregg v. Georgia, 428 U.S. 153, 185, 96 S. Ct. 2909, 2935, 49 L. Ed. 2d 859 (1976)). We are therefore inclined to further explore this matter.
Free does not ask us to take this evidence at face value. Instead, he proposes an evidentiary hearing at which we may have the opportunity to fully explore the validity of the survey. Concluding that such a hearing is warranted, we refer the matter to Magistrate Judge Bernard Weisberg. Magistrate Judge Weisberg is to assess (1) the validity of the Zeisel study, and (2) its impact on each of the grounds (5, 10 & 14) for which it is offered as support. Due to the nature of this case and the need for expedited review, we request Magistrate Judge Weisberg to file a Report and Recommendation regarding this inquiry on or before February 1, 1992. This Report should include a transcript of the hearing before the Magistrate Judge along with any exhibits considered by him. Accordingly, we reserve ruling on Grounds 5, 10 and 14.
Regarding Ground 6, Free first reiterates a facial challenge to the death penalty statute on the ground that it unconstitutionally shifts the burden of persuasion against death to the defendant. Free offers no reasoning to circumvent the holding in Silagy on this point, and therefore that specific challenge fails. Free further contends, however, that, unlike Silagy, the prosecutor's argument at his sentencing hearing together with the jury instructions had the effect of imposing such a burden on him. Thus, he challenges the application of the statute under the particular circumstances of his case. However, having examined the passage from the prosecutor s closing argument to which Free refers (C. 8363-64, 8374) as well as the jury instructions given, we do not believe that they amount to the burden-shifting that Free claims. The prosecution simply and correctly indicated that it no longer had to prove anything beyond a reasonable doubt, but rather that the jury now faced an "open question." These remarks are consistent with the structure of the aggravation/mitigation phase of the sentencing hearing as a "weighing process in which presumptions and burdens of proof have very little meaning." Williams, 742 F. Supp. at 499. Accordingly, we deny Free's petition as it pertains to Ground 6.
III. Constitutionality of the Proceedings Against Free
Free challenges the entirety of the proceedings against him by claiming that discriminatory zoning practices in DuPage County resulted in a denial of his Sixth Amendment right to an impartial jury (Ground 21). As a predicate for this claim, Free relies on HOPE Inc. v. County of DuPage (Illinois), No. 71-0587 (N.D. Ill. Nov. 9, 1981), in which the district court found that DuPage County engages in intentional individual discrimination in its zoning practices. Free, further relying on Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905 (1990), contends that the district court's findings provide compelling evidence of discriminatory practices that ...