shown on PX 20, 25 and 35. Measured in that way, the 1992 results (48%) fell within his predicted 99% confidence interval. T. 752-65, 770-73, 1171-73, 1216-17. Rossi also observed that (1) the differences in the results of the two surveys may be accounted for by the fact that different instructions were used (2) the ranges by which the 1992 results fell outside confidence intervals were "not very far" and (3) the levels of misunderstanding in both surveys were very high. T. 763, 770-73.
We do not agree with Rossi's premise that the primary importance of the Zeisel surveys is as evidence of comprehension of the instructions "in the aggregate". While the likelihood of misunderstanding on more than one issue is significant, our analysis necessarily focuses on the likelihood of misunderstanding with respect to specific issues on which the Constitution requires that the jury be given clear guidance. Nevertheless, the facts relating to confidence intervals do not, in our opinion, detract from the validity of either survey.
First, we put aside questions 12 to 15 dealing with the burden of persuasion. Except possibly for question 12, which we explain in Part 6 has a potential ambiguity, these questions do not have correct answers. As discussed more fully in Part 6 of this Report, the significance of the survey results for those questions lies in the extent of the disagreement among the respondents reflecting substantial confusion about the burden of persuasion.
As Rossi observed, the two surveys were not identical and the use of different instructions may account for some of the variations under discussion. What is more important is that the levels of misunderstanding shown in both surveys, with few exceptions, are very high and the levels of deviation in the 1992 survey from the results predicted are modest. Finally, there is no suggestion that confidence intervals are a critical test of validity. Lavrakas said only that the deviations "suggest" and "could be interpreted" as a sign of variation or inconsistency. For these reasons, and considering all of the evidence on validity, we conclude that the facts relating to confidence intervals do not detract from the validity of either survey.
Other Possible Sources of Error
The court has considered other possible sources of error suggested by Lavrakas but finds them unsupported. Inadvertence, fatigue and literacy problems, T. 839, are possibilities. Diamond testified that if fatigue had been a factor, one would expect the subjects to score better on questions coming earlier on the list, but she found no evidence of that. T. 1153-54. Lavrakas did not dispute Rossi's analysis showing that the actual distribution of responses was very different from the distribution expected if the respondents were randomly selecting answers. PX 20. Lavrakas criticized the surveys for the absence of internal consistency checks. However, he did not address the inclusion of multiple questions on three of the five topics, a more meaningful consistency check than those he suggested. T. 138, 206, 638. Finally, in criticising the surveys for inadequate documentation, he only specified the question whether the surveyed population was a representative sample of all persons eligible to serve as jurors in Cook County. T.873. But he nowhere indicated what type of documentation on that point is needed in view of 1) the uncontradicted testimony of Zeisel and attorney James Bailinson, T. 1041-76, that the survey subjects were panels of persons summoned for jury duty at the Daley Center and previously grouped by jury officials in the same manner as groups sent to courtrooms for actual jury service and 2) the evidence summarized above that the demographic differences he stressed are not significant for this purpose. Reserved for later discussion is one other issue brought up by Lavrakas, the significance of the difference between taking a written test and the real life situation of jurors making an actual decision on life or death.
* * *
The results of the Zeisel surveys are strongly corroborated by the fact that the two surveys were done under similar conditions, each with instructions modeled on the Illinois statute and each disclosing roughly similar levels of confusion. Those results also receive some support from the Diamond-Casper study. While that study differed in several ways from the Zeisel surveys, the results of that study reflected in PX 11 are suggestive, apparently indicating, as the Zeisel surveys did, significant levels of misunderstanding among persons summoned for actual jury duty as to what are mitigating and aggravating factors and how they should be considered.
The results of the Zeisel studies are consistent with other studies of juror comprehension. Where jury instructions have been based upon statutes and appellate court decisions with no attempt to rewrite them for better comprehension, every empirical study has shown a startlingly low level of comprehension. The literature on such studies is summarized in W. Steele and E. Thornburg, Jury Instructions: A Persistent Failure to Communicate, 67 N.C.L. Rev. 77, 83-87 (1988). They conclude,
Many lawyers and judges simply do not believe that juror confusion is a serious problem. Since they understand the instructions, they believe that jurors understand them as well. This position, however, is not supported either by empirical research or case law. None of the studies that have been done show that jurors understand their instructions at an acceptable level. On the contrary, all of the empirical studies show juror comprehension of pattern instructions to be so low as to be dysfunctional.
Id. at 98-99. It is in capital sentencing, where clear guidance is required by the Eighth and Fourteenth Amendments, that the problem is one of constitutional significance.
We conclude that the Zeisel surveys are valid, meaning that within standard margins of error the survey results are true, that is, they fairly represent the levels of comprehension of the survey respondents regarding the capital sentencing instructions used in those surveys.
Reliability of the Zeisel Surveys
Are the Zeisel survey results reliable? In other words, is it reasonable to apply those results to persons other than the survey respondents, for example, persons participating in replications of those surveys in Cook County or DuPage County or the Free jurors themselves? For the reasons discussed above, we find Lavrakas' testimony on external validity unpersuasive, and accept Rossi's testimony that it is reasonable to make inferences about the comprehension of other jury populations in Illinois based on the survey results because of the magnitude of the results and the fact that no sub-group in the surveys performed well. T. 645-48, 1191-92. The court also accepts Rossi's testimony that whatever differences exist between DuPage County jurors and the survey respondents are unlikely to produce significant differences if the same surveys were done under similar conditions in DuPage County. We conclude that if the same survey instruments were used with prospective jurors in the DuPage County Courthouse under conditions like those in the Daley Center surveys, it is reasonable to expect similar results showing substantial levels of misunderstanding of the IPI instructions and the capital sentencing instructions used in the Free case.
As Judge Aspen observed, the Zeisel survey evidence is offered to establish a basis for invalidating certain aspects of the Illinois statutory scheme under which Free was sentenced. If the statute is invalidated on the grounds asserted that would call into question the constitutional reliability of the sentence Free received. Free, 778 F. Supp. at 436. That issue is addressed in Part 6 of this Report. However, the parties have also debated the question of what do the Zeisel survey results tell us about the Free jury itself? Did the Free jury misunderstand the capital sentencing instructions as the survey subjects did?
The Free jury differed from the Zeisel survey respondents in three important ways. They made an actual life or death decision, they deliberated as a group instead of separately answering written questionnaires and they made their decision after a trial and sentencing hearing in which they heard aggravating and mitigating evidence and arguments by the prosecutor and Free's attorney which discussed how the jury should decide on the sentence. To what extent do the Zeisel survey results or other evidence in the record support inferences about the level of comprehension or confusion of the Free jury with respect to constitutionally significant aspects of that decision? The Zeisel surveys themselves were not designed to study those questions. The pertinent evidence consists largely of opinions expressed by several witnesses, in some instances relying on other studies.
While the Free jurors' participation in an actual life or death decision was obviously a very different experience than that of the survey respondents, there is no evidence or reason to believe that participation in an actual decision would have increased comprehension.
Whether deliberation as a group and hearing evidence and attorneys' arguments would be likely to reduce confusion and misunderstanding is a more difficult question. The respondents cite the observation in Boyde v. California, 494 U.S. 370, 380-81 (1990), that,
Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process with common sense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.
See also Lockhart v. McCree, 476 U.S. 162, 171 (1986), expressing serious doubts about the value of studies of randomly selected individuals in predicting the behavior of actual jurors. Free, however, points to expert testimony and empirical proof which he says show that deliberation and attorneys' closing arguments would be ineffective to cure the levels of miscomprehension shown in the Zeisel surveys.
Zeisel did not believe that the deliberation process would do much to eliminate the misunderstandings shown in the 1990 survey for two reasons. First, they are very high. Second, the judge's instructions are the last thing the jurors hear and the Illinois capital sentencing instructions are not styled to give the jurors definitions likely to lead to discussion about whether the facts fit those definitions; rather the instructions are largely advice about how to articulate the elements which weigh for life or death. Zeisel's "guess" is that most of the jurors will have made up their mind to vote for death or for life by the time they commence deliberations. T. 37-41.
Zeisel cited studies which found that the importance of the deliberation process is probably over-estimated, based on interviews with real jurors showing that in one -third of the cases jurors are unanimous on the first ballot and 90% of the verdicts in the remaining cases went in the direction of the first ballot majority. Zeisel was not asked directly about the extent to which the attorneys' arguments in the Free case may have reduced the levels of misunderstanding he thought would result from the judge's instructions. However, Zeisel did state his opinion that because the judges' instructions are the last thing jurors hear before deliberating, with small corrections which might arise during the deliberation process, the jurors will apply the misunderstandings shown in the survey results to their decision. T. 91. Nevertheless, in discussing the difference between simulated and actual decisions he was careful to note that it is a question of common sense judgment whether the simulation in the 1990 survey "is close enough to allow inferences to the real [world]". T. 98-99.
According to Hans, the 1990 survey results suggest that the Free jury more likely than not had significant problems understanding the instructions they were given. T. 221-22. In her opinion that survey is applicable to the Free jury. However, she also believed that the defense attorney's argument that there is no hung jury in a penalty phase decision together with the presence of the two verdict forms in the jury room might have provided additional guidance and survey question 16 therefore might not apply to the Free jury. T. 156. She thought that deliberation would have a slight, if any, impact on enhancing juror comprehension, T. 163-66, citing a study indicating that jurors frequently correct each others' factual errors but are less likely to correct errors about judicial instructions. Phoebe C. Ellsworth, Are Twelve Heads Better Than One?, 52 Law & Cont. Prob. No. 4, 205 (1989).
According to Diamond, the Diamond-Casper Study shows a modest improvement in accuracy associated with deliberation in some cases with a drop in accuracy associated with deliberation in one case out of seven. PX 11 at 10, T. 306. But elsewhere Diamond has written, "it seems hazardous to draw pragmatic inferences about jury functioning based on studies that have only examined individual decisions made by noninteracting jurors." Weiten & Diamond, A Critical Review Of The Jury Simulation Paradigm, 3 Law & Human Behavior, 71, 79 (1979).
The studies Zeisel relied on involved conventional juries instructed to resolve factual disputes and reach unanimous verdicts on questions of guilt or liability, a task which Zeisel recognized was very different from the task of a capital sentencing jury. Professor Ellsworth cautioned that because of the small sample size in her study, statistical analysis of the data would be misguided. 52 Law & Cont. Prob. No. 4 at 208. Moreover, the deliberating groups in that study decided issues of guilt or innocense and operated under a one hour time limitation which Ellsworth thought probably resulted in an incomplete picture of the deliberation process. Id. We do not view the data from the Diamond-Casper study as sufficiently strong or clear to support any general finding about the extent to which the jury deliberation process is likely to reduce misunderstanding.
No research studies were cited which attempted to separately measure the effectiveness of attorneys' closing arguments in improving juror understanding. Free cites the comment in Boyde that "arguments of counsel generally carry less weight with a jury than do instructions from the court," 494 U.S. at 384, and the instruction to the Free jury that attorney's arguments are not evidence. Sentencing Transcript, Pretrial Order Exh. F (Sentencing Tr.) at C8443. Respondents however note that the judge also told the jury that "arguments are made by the attorneys to discuss the facts and circumstances in this case which bear upon the question of whether the death sentence should be imposed". Id. at C8442.
We find that the evidence on the likely effect of deliberation and attorneys' arguments in reducing misunderstanding is sketchy and inconclusive. That evidence is not strong enough to rule out the possibility that comprehension among members of the Free jury on some key issues may have been substantially aided by hearing the evidence, the arguments of the attorneys and by the process of deliberation. The likely effectiveness of those factors, we think, should be assessed after a closer analysis of the issues on which a likelihood of misunderstanding is claimed. We return to that analysis in Part 6 of this Report.
5. Procedural Default
Judge Aspen rejected respondents' argument that Grounds 10 and 14 were procedurally barred. He first found that those claims were fairly raised in Free's direct appeal. Alternatively, Judge Aspen concluded, those claims are not barred because Free has shown cause, that the Zeisel survey evidence was unavailable to Free at the time of his state court petitions.
It is unrealistic to suggest that Free's counsel should have expended both the time and resources necessary to independently commission the study and develop the empirical evidence to support his claim on direct appeal.
Free v. Peters, 778 F. Supp. at 436 n. 3. We will discuss the evidence developed at the hearing which bears on that alternative ruling, observing that the requirement for a showing of cause, "that the factual or legal basis for a claim was not reasonably available to counsel", Murray v. Carrier, 477 U.S. 478, 488 (1986), now applies to Judge Aspen's first holding as well. For the Supreme Court has recently ruled that one who raises a claim in state court, but fails to develop the factual predicate for it, must show cause and prejudice before he will be permitted a new hearing in federal court.
In Keeney v. Tamayo-Reyes, 112 S. Ct. 1715, 118 L.Ed 2d 318 (May 4, 1992), the petitioner, a Cuban immigrant who had pleaded guilty to manslaughter, alleged in a state post-conviction proceeding that the translator had not explained to him the nature of the plea agreement or the mens rea required for manslaughter. After a hearing the state court dismissed his petition. He then brought a habeas petition in federal court. The district court determined that his counsel's failure to adequately develop the facts concerning the alleged mistranslation was due to inexcusable neglect, no evidentiary hearing was required and dismissed the petition. The Ninth Circuit reversed, holding that under Townsend v. Sain, 372 U.S. 293, 313 (1963), and Fay v. Noia, 372 U.S. 391, 438 (1963), the petitioner was entitled to a new hearing in federal court unless his counsel had "deliberately bypassed" available state court remedies.
The Supreme Court reversed, overruling Townsend and holding that a habeas petitioner must show cause and prejudice for his failure to adequately develop the evidentiary basis for his post-conviction petition in his state court before he will be entitled to an evidentiary hearing in federal court. Thus, even though Free raised his claims on direct appeal, before he is entitled to introduce new evidence in support of those claims, he must show cause for his failure to introduce it in his state post-conviction proceedings or his direct appeal.
Free argues that Tamayo-Reyes does not apply because in Tamayo-Reyes the habeas petitioner alleged that his state court evidentiary hearing was inadequate, while Free never had one. Pet. Obj. to Resp. Findings of Fact at 7. But Free never asked for one. According to Tamayo-Reyes, it is irrational to distinguish between failing to develop a factual record before the state courts and failing to raise a claim at all, 112 S. Ct. at 1719, 118 L. Ed. 2d at 328, and therefore the cause and prejudice standard applies. It is clear from Tamayo-Reyes that the deliberate bypass standard of Fay v. Noia is dead. Henceforth the cause and prejudice standard will apply to the introduction of any new matter in a federal habeas petition -- whether evidence or legal theory -- that was not previously presented to the state courts. Thus Tamayo-Reyes may prevent our considering the Zeisel studies -- or any other evidence not first presented to the state courts -- unless Free can show cause and prejudice.
The Court in Tamayo-Reyes stated that, as under Murray, 477 U.S. at 488, "[a] showing that the factual or legal basis for a claim was not reasonably available to counsel," would constitute cause excusing the petitioner's failure to develop evidence in state court proceedings. Tamayo-Reyes, 112 S. Ct. at 1721 n.5, 118 L.Ed 2d at 330 n. 5. Free has alleged, and Judge Aspen found, that the evidence contained in the Zeisel studies was not reasonably available to his counsel in state court. We now turn to the evidence on this point brought out at the hearing.
The history of the Zeisel study was as follows. Professor Zeisel testified that David Bradford, a lawyer working for the McArthur Justice Center, T. 60-61, approached him, and stated that he believed that the Illinois jury instructions for capital sentencing were "misguided" and possibly unconstitutional, and asked whether Zeisel could design a study to test this. T. 18-19. Zeisel could not remember when Bradford first came to him. T. 54. Bradford and Zeisel shared an opposition to the death penalty. T. 46. "They" (presumably Bradford and his associates) wanted Zeisel to use the facts of the Free case, and Bradford provided a trial transcript and a set of jury instructions, which Zeisel understood to be the Illinois pattern jury instructions. T. 23, 53-54. Zeisel worked with Bradford in designing the questions for the survey. Bradford raised points where he thought jurors might be misled, and together they designed questions to test these hypotheses. T. 60-61, 84-85. When counsel pressed Zeisel to explain why the facts of the Free case, and only the Free case, had been used in preparing the survey, he replied:
Because I understood and still understand that such questions under American law are not decided in the general rule but in connection with one particular case. I mean, the law on voir dire is not established generally by the United States Supreme Court, but in Witherspoon versus Illinois. So I thought they want to have this issue of instructions decided in connection with the Free case.
T.86. Zeisel acknowledged that he could have performed the survey at any time. T. 87. After the respondents emphasized at the initial hearings here that Zeisel had not used the exact instructions given to Free's jury, Zeisel repeated the study using those instructions.
From this respondents conclude that Free and his attorneys could have carried out the same study at the Daley Center each year from 1979 to 1989. Respondents suggest that Free deliberately bypassed the opportunity to develop these facts for adjudication in the state courts and that those facts were thus reasonably available to Free during the time he was litigating his direct appeal and post-conviction petitions in the Illinois courts.
The testimony shows, however, that the Zeisel studies were not commissioned by Free or his attorneys. There is no evidence that Free's attorneys had any involvement in the creation or conduct of the 1990 Zeisel study, except for granting permission to Zeisel to use the facts of the Free case. T. 4. Further, we find no basis for respondents' assumption that Free's attorneys would have been able to gain access to the Cook County Circuit Court jury panels which the Chief Judge granted to Zeisel, a highly regarded and independent expert in empirical jury studies.
Nor is there any evidence that an academic expert in jury research, like Zeisel, would have been available at Zeisel's request to conduct such a survey.
It does appear that Bradford and Zeisel expected to make the results of the 1990 study available to Free's attorneys for use in their efforts to overturn his death sentence. Nevertheless, the record supports Free's contention that the study was entirely independent, with nothing to indicate that Bradford or Zeisel acted in response to any direction or request from Free's attorneys.
We conclude that the Zeisel survey evidence was not reasonably available to Free's attorneys during the state court proceedings. Free has shown that the Zeisel surveys were independent research. Respondents have not rebutted that showing. It is unrealistic to think that Free's attorneys could have carried out such research on their own or, if they did, that the results would be entitled to the weight appropriately due to research findings of Zeisel, a scholar of unquestioned objectivity.
6. The Impact of The Zeisel Survey Evidence on Free's Grounds for Relief, 5, 10 and 14
The question posed by Judge Aspen is whether the Zeisel survey evidence calls for reconsideration of the empirical assumptions about juror comprehension which served as the predicate for the pertinent rulings in Silagy and Williams. Free v. Peters, 778 F. Supp. at 434-35. The parties have also debated whether the findings of the Zeisel surveys can be applied to the Free jury itself. In order to answer both of those questions we undertake a closer analysis of the specific issues on which the survey evidence shows substantial misunderstanding.
Requirement that Jurors Agree on Presence of Mitigating Factors
Questions 4 and 5 of the Zeisel studies were designed to test whether jurors believe they cannot spare the defendant on the basis of a mitigating factor unless all of the jurors agree that the mitigating factor may be used. They read as follows:
4. A juror decides that the fact that Mr. Wood was only 25 years of age when he committed the murder is a mitigating factor sufficient to preclude the death penalty. However the other eleven jurors disagree and insist that his age is not a mitigating factor. The one juror believes that she cannot consider a mitigating factor unless the entire jury agrees upon it and votes for the death penalty. She votes for the death penalty.
5. A juror decides that the fact that Mr. Woods was good to his family is a mitigating factor sufficient to preclude the death penalty. However, the other eleven jurors disagree. The other jurors insist that no juror should consider the defendant's good relations with his family as a mitigating factor unless they all agree it is a mitigating factor. The one juror accepts this approach and votes for the death penalty.
In the 1992 survey 15% of the subjects answered question 4 incorrectly, while 30% answered question 5 incorrectly, in each case stating that the juror had followed the judge's instructions. In the 1990 survey 25% and 36% respectively answered those questions incorrectly.
Respondents argue that the Free jury instruction,
If, from your consideration of the evidence and after your due deliberation, there is at least one of you who finds that there is at least one mitigating factor sufficient to preclude the imposition of the death sentence, then you should return a verdict that the Defendant be sentenced to imprisonment.
C8443-44, is clearer than the closest IPI instruction,
If you do not unanimously find from your consideration of all the evidence that there are no mitigating factors sufficient to preclude the imposition of a death sentence, then you should sign the verdict requiring the court to impose a sentence other than death.