The opinion of the court was delivered by: BRIAN BARNETT DUFF
Petitioner Charles Albanese was convicted in separate trials of the murders of his father, mother-in-law, grandmother-in-law, and the attempted murder of his brother. He was sentenced to death in both proceedings. Albanese seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 ("§ 2254") and asks this court to review the constitutionality of his convictions and sentences. For the reasons stated below, the Petition for Writ of Habeas Corpus is denied.
In May 1982 Petitioner Albanese was convicted of the murders of Mary Lambert, his wife's grandmother, and M.J. Albanese, his father, as well as the attempted murder of his brother Michael Albanese, all by arsenic poisoning.
At the request of Albanese, the May 1982 trial was transferred from McHenry County, where the indictment was outstanding, to McLean County. The McLean County jury sentenced Albanese to death.
On direct appeal, the Illinois Supreme Court affirmed the conviction and sentence, People v. Albanese, 102 Ill. 2d 54, 464 N.E.2d 206, 79 Ill. Dec. 608 (1984) (hereinafter "Albanese I"). The United States Supreme Court denied certiorari, Albanese v. Illinois, 469 U.S. 892, 83 L. Ed. 2d 205, 105 S. Ct. 268, (1984).
In October 1982 Albanese was convicted in Lake County of the murder of his mother-in-law, Marion Mueller. Petitioner waived a jury for sentencing, and the trial judge imposed the death sentence. The Illinois Supreme Court affirmed the conviction and sentence on direct appeal, People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246, 85 Ill. Dec. 441 (1984) (hereinafter "Albanese II"), and certiorari was denied, Albanese v. Illinois, 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061, (1985).
Albanese filed separate post conviction petitions attacking the constitutional validity of his convictions and death sentences in McHenry and Lake Counties. The McHenry County petition was denied after a three-day evidentiary hearing held in May 1986. The Lake County petition was denied without a hearing. Both denials were appealed directly to the Illinois Supreme Court, which affirmed the denial of post conviction relief after consolidating the appeals due to the similarity of issues presented. People v. Albanese, 125 Ill. 2d 100, 531 N.E.2d 17, 125 Ill. Dec. 838 (1988) (hereinafter "Albanese III"). Once again, certiorari was denied, Albanese v. Illinois, 490 U.S. 1075, 104 L. Ed. 2d 652, 109 S. Ct. 2088, (1989). Petitioner now seeks federal habeas relief from the McHenry and Lake County convictions and sentences.
Respondents (hereinafter referred to as the "State") concede that Albanese has exhausted his state remedies and have moved that the court deny the Petition.
Under § 2254(d) factual findings by a state court "are presumed to be proper in a federal habeas corpus proceeding, if the findings are made after a hearing on the merits, and they are fairly supported by the record." Wilson v. McCaughtry, 994 F.2d 1228 (7th Cir. 1993) Factual findings made by a state appellate court are accorded the same statutory presumption of correctness as findings made by a state trial court. Lewis v. Huch, 964 F.2d 670, 671 (7th Cir. 1992).
The following facts are taken from the Illinois Supreme Court's opinion in Albanese I (McHenry County). Additional facts from this court's review of the trial transcripts have been added in brackets ([ ]).
In 1980, Charles Albanese was president of Allied Die Casting Corporation, a family business that manufactured trophies and loving cups. Albanese was married and lived in a large home in Spring Grove with his third wife and two daughters. Albanese had three other daughters by his first wife, and they were living in Wisconsin with their mother. Albanese maintained what can be termed a comfortable life style; he had a swimming pool, two Cadillacs leased by Allied Die Casting Corporation for the family's use, and he took frequent vacations to tropical destinations. Albanese testified that he spent everything that he earned and was not able to live on $ 110,000 per year "and do some of the things I want."
Charles Albanese began experiencing serious economic problems in July of 1980. He was behind in his mortgage payment and six months' delinquent in child-support payments to his first wife. He also owed a $ 15,000 note at the State Bank of Richmond, due on August 14, 1980. In July of 1980, his ex-wife's lawyer filed a petition requiring him to appear in court on a rule to show cause, and a body attachment was issued when he failed to appear.
On August 3, Marion Mueller, [Albanese's] mother-in-law, and Mary Lambert, Mrs. Albanese's grandmother, came to the Albanese home for Sunday dinner. Mueller and Lambert lived together in a condominium at Leisure Village, a retirement complex in Fox Lake, and often visited the Albanese home for Sunday dinner. The family ate Polish sausage and sauerkraut family style from the same platter, so it appears the arsenic was ingested from another source. Charles Albanese testified that, to his knowledge, the two guests had nothing to drink. Charles Albanese insisted this was the case even though the 87-year-old Mary Lambert was working in the yard on a hot day for several hours prior to eating dinner. On August 4, 1980, Charles Albanese sent his ex-wife's lawyer a postdated check for $ 3,648, the amount of the child-support arrearages, along with a note that informed the attorney that the check was dated August 15 because a deposit would be made to his account around August 13. Charles also sent him a postdated check for $ 500. On August 5, 1980, Mary Lambert was admitted to the emergency room at McHenry Hospital with a history of vomiting and diarrhea for the preceding 36 to 48 hours. On August 6, 1980, Mrs. Lambert died leaving Marion Mueller and Virginia Albanese as her heirs. Charles Albanese's wife, Virginia Albanese, closed out her grandmother's checking account and transferred $ 3,600 to the joint-tenancy account she shared with her husband. This amount helped to cover the postdated check for Charles Albanese's child-support payments.
The body of Marion Mueller was exhumed on August 31, 1981, and the body of Mary Lambert was exhumed on August 13, 1981. The official cause of death for both women was acute gastroenteritis due to arsenic poisoning. Mary Lambert had approximately eight times the normal amount of arsenic in her body and Marion Mueller had five times the normal concentration of arsenic. Forensic chemist Joerg Pirl testified that the two women died of a massive dose of arsenic.
Virginia Albanese received $ 6,000 in life insurance proceeds and pension fund proceeds from Marion Mueller's death, and the money was used to make the delinquent payments on the Albaneses' mortgage. The State Bank of Richmond granted Charles Albanese two extensions on the note due August 14, 1980, because Charles Albanese told the bank that he had some real estate that he was trying to sell. Charles and Virginia Albanese sold the Leisure Village condominium owned by the two dead women for $ 50,000 in October of 1980. Virginia Albanese inherited the condominium by intestate succession. Twenty thousand dollars from this sale was deposited in the joint account of Charles and Virginia Albanese, and this amount was used to satisfy the $ 15,000 note due at the Richmond State Bank.
In 1980, Allied Die Casting was owned by three stockholders: Charles Albanese, M.J. Albanese (Charles' father), and Michael Albanese (Charles' brother). The three men made up the board of directors and each held an executive office. Charles Albanese was president of the corporation, Michael Albanese was vice-president, and M.J. Albanese held the office of secretary-treasurer. The shareholder agreement, approved by the board of directors, gave special powers to M.J. Albanese. He had absolute power to control and manage the company, including the power to veto or negate the decision of any other officer or employee. This arrangement was consistent with the origins of Allied Die Casting. M.J. Albanese was the moving force behind the business, and Charles had joined the family business when a previous job had not worked out. Charles Albanese did not have a good relationship with his brother, Michael Albanese, but conflicting testimony was offered concerning the relationship between Charles Albanese and M.J. Albanese.
A. Donald Fishbein, attorney for Allied Die Casting, testified that he attended a corporate meeting on September 4, 1980. Fishbein, Michael Albanese, Charles Albanese, M.J. Albanese, and M.J.'s wife, Clara Albanese, were in attendance. Fishbein testified that the purpose of the meeting was to terminate the employment of Charles Albanese. Charles Albanese disputed this claim when he testified in his own behalf at trial. After the meeting, the board of directors executed an amendment to the shareholder's agreement that caused the demotion of Charles Albanese. M.J. Albanese was made president, Michael Albanese was made secretary and vice president, and Charles Albanese was made treasurer. Clara Albanese was to become a stockholder, having equal ownership with the three men.
On September 8, 1980, Michael Albanese ate his lunch at work. He had left his sandwich in his office prior to lunch. Michael began vomiting about an hour after eating lunch, and was hospitalized later that day. He left the hospital on September 13, 1980. On November 14, 1980, Michael Albanese experienced another attack of vomiting and diarrhea about two hours after eating lunch at work, and again sought medical attention. He was not hospitalized, but was placed on a bland diet in order to alleviate the symptoms of an ulcer that was detected by the treating physician, Dr. Miller. Michael Albanese's wife began preparing lunches for Michael to take to work in order to conform with the bland diet recommended by Dr. Miller. Michael testified that his periods of illness usually began after he had eaten or had coffee at work.
On February 21, 1981, Michael Albanese's wife heated a can of pea soup and placed it in a thermos for her husband to take to work. Michael Albanese left the thermos in his office when he left to keep an appointment with Dr. Miller. He returned around lunch time after Dr. Miller had told him that his ulcer was under control and that he could discontinue the bland diet. Michael began eating his soup while M.J. Albanese was talking to him. Charles Albanese urged his father to leave Michael alone until he had finished eating. Michael testified that he only ate about half of the soup because it "tasted funny." He went into the computer room and began working. After a short time, he began vomiting and became so ill that he left the office. He had to stop his car on the side of the road in order to vomit before he reached home. He went to bed but was plagued by vomiting and diarrhea until the next morning when he called Dr. Miller. Outpatient tests were performed that day, and Dr. Miller ordered immediate hospitalization.
Although Michael was discharged from the hospital on March 13, 1981, his condition was still very serious. In addition to the gastrointestinal difficulties, Michael began experiencing numbness in his hands and feet, and the nerve damage became so severe he was unable to walk, dress himself, or carry on normal business activities. He was in intense pain and had difficulty sleeping at night. His wife had rinsed out the thermos, but police tests revealed the presence [but did not determine the quantity]
of arsenic in the thermos.
Medical tests revealed that Michael Albanese was not suffering from an ulcer, but that he had received sublethal doses of arsenic over a period of months, and that this poisoning was the cause of his nerve damage. Michael's condition improved slowly, and he was finally able to return to work and walk with the aid of leg braces. At the time of [McHenry] trial, in May 1982, he still had difficulty with his hands, and the residual numbness was so severe he was unable to perform many simple tasks such as buttoning his shirt.
M.J. Albanese kept a cookie jar in his credenza at work, and often ate cookies while he worked at his desk. In March of 1981, M.J. began vomiting and experiencing severe diarrhea. The symptoms were so similar to Michael's that Dr. Miller suspected that M.J. was having psychological problems caused by the serious illness of his son. On April 21, 1981, M.J. Albanese was so ill he was taken to the emergency room and hospitalized. He was released after a few days, but his condition did not improve. M.J. complained of numbness in his hands and feet, and was referred to a neurologist for tests which demonstrated some sensory nerve deficit.
M.J. was hospitalized for the last time on May 9, 1981. He complained of vomiting, pain, and increasing numbness in his hands and feet, and his condition gradually deteriorated. Charles Albanese visited M.J. frequently. Dr. Miller testified that "the one I remember most being there, almost hovering every day, was Charles." M.J. had skim milk at his bedside in order to alleviate the dehydration caused by the severe vomiting and diarrhea.
On May 15, 1981, Charles Albanese called Mr. Fishbein at home in the early morning hours. He told Fishbein that the doctors did not expect M.J. to live very long, and that he should prepare an amendment to the Allied Die Casting Corporation agreement as soon as possible, and get to the hospital. Dr. Miller testified that he was mystified by M.J.'s deterioration and certainly did not expect M.J. to die soon. Charles and Michael Albanese visited M.J. at the hospital that day, and the three men signed an amendment to the shareholder agreement. This agreement promoted Charles to vice-president of Allied Die Casting Corporation. M.J. was in intense pain and strapped to the hospital bed. Michael was in a wheelchair, and he was so crippled he needed his wife's assistance to sign the agreement. M.J. Albanese died in the early morning hours of May 16, 1981. Joerg Pirl, forensic chemist, examined samples of M.J.'s hair and fingernails, and concluded that death was caused by arsenic poisoning, with sublethal doses administered over a four-month period, and a large lethal dose administered immediately prior to death.
Defense counsel theorized that M.J. might have received arsenic poisoning from an octopus meal consumed shortly before entering the hospital. The package of octopus was retrieved, and laboratory tests revealed the arsenic in the octopus was within normal, nonlethal levels. Arsenic is a compound that is found as a trace element in many food items and in every person.
Laboratory tests revealed the presence (but did not determine the quantity)
of arsenic in the crumbs remaining in M.J.'s cookie jar. Charles Albanese testified that he often ate cookies out of M.J.'s cookie jar, and that he continued to do so after M.J.'s death. Charles was not able to explain how he had escaped the arsenic that had killed his father, nor was he able to satisfactorily explain why the cookie jar was left in his father's credenza. Charles explained that he continued to walk to his father's office every time he wanted a cookie, instead of moving the jar into his own office. Charles claimed there was no room in his office for a cookie jar. [. . .]
With M.J. dead, and Michael crippled and at home, Charles Albanese was in sole control of Allied Die Casting Corporation. His financial situation was still very serious and he began selling scrap metal and zinc, property of the corporation, to J.W. Reichel and Sons and to Clearing Smelting Corporation. Charles sold 88,000 pounds of zinc and $ 9,300 worth of scrap metal in these transactions. Charles insisted that the checks be made out to him personally or to cash, and he would not accept checks made out to Allied Die Casting Corporation. Charles received nearly $ 40,000 for these transactions. In November of 1981, when police began investigating the mysterious deaths in the Albanese family and visiting Allied Die Casting Corporation, Charles called Edward Cohen at Clearing Smelting and told him, "If anybody calls regarding any of our transactions, you know nothing of it."
Police investigators were unable to discover the presence of arsenic in hair and fingernail samples of [Charles Albanese, or]
employees at Allied Die Casting, or the presence of the poison at the Leisure Village complex. Charles Albanese was arrested in November 1981, shortly before he was to leave for a holiday in Jamaica with his wife and mother. Charles has not contested the theft charges stemming from the sale of the company scrap metal and zinc. [. . .]
At trial, Joe Reichel, vice-president of J.W. Reichel and Sons in Elkhorn, Wisconsin testified that he talked with Charles Albanese in the autumn of 1979. Reichel testified that Charles told him he needed something to "get rid" of "some pests around the house." Reichel's company had a small quantity of arsenic which was used for a plating process. Reichel brought Charles a small tupperware container of arsenic a few weeks after the conversation. Charles requested more arsenic about two weeks later, and Reichel brought Charles a small baby food jar containing arsenic. [Charles initially denied to McHenry police that he had ever possessed arsenic.]
One of Albanese's neighbors, Pat Marshall, testified at trial. She stated that there had been problems with pests in the area, but that the problems did not begin until the spring of 1980. Both Pat Marshall and Virginia Albanese testified that the Albanese's garbage was strewn all over the lawn in the spring of 1980. Thus, Charles Albanese obtained the arsenic at least four months before the garbage and pest problem described by other witnesses.
Charles testified at trial that he did not poison anyone. He accused his brother Michael of poisoning M.J. Charles further testified that Michael poisoned himself so it would appear that Charles was the criminal. Charles was not able to explain how Michael could have administered the fatal dose to M.J. on May 15, 1981, when Michael was so crippled he could barely hold a pen in his hand.
Charles testified that Michael was the architect of the clandestine sale of zinc and scrap metal. Charles stated that he paid Michael cash because his brother was so crippled he could not sign checks. Charles was unable to explain how his brother signed his paychecks during the period of his most severe paralysis.
Charles denied being present at Allied Die Casting on September 8, 1980, shortly after he was demoted, and the day Michael had his first attack of vomiting. Charles was presented with a series of checks and order forms that he had signed on September 8, 1980, but he explained that he must have put the wrong date on all of the documents and signed them on a different day. [Charles also denied being at work on January 6, 1981, a day when Michael became ill with vomiting. Charles testified that a check and telephone order dated January 6, 1981 and signed by him must have been completed on a different day.]
Charles could not establish that Michael had seen Mary Lambert and Marion Mueller shortly before their deaths. He conceded that Michael had not profited from the deaths of the two women. When asked who had profited, Charles said, "I did, my wife did."
While Charles was an inmate at McHenry County jail awaiting trial, he made the acquaintance of another inmate, Marty Nathan. Nathan testified that Charles asked him "* * * if I knew anybody that would take care of some people for him * * * and then he said like about some money for like $ 10,000 on a first payment and like 10 or 20 on a second one. And I took it and - you know, thinking that he meant to have them killed." Nathan testified that Charles wanted to have his brother Michael and Joe Reichel, the man who supplied Charles with arsenic, killed while he was in jail. Nathan did not receive any money from Charles, but Nathan agreed to mail some letters for Charles when he was discharged from prison.
At trial, Charles admitted that he wrote a letter in prison that attempted to implicate Michael in the poisoning deaths and that he had Marty Nathan mail copies of the letter to his mother, his wife, the plant supervisor at Allied Die Casting, and his uncle, Frank Albanese. The letter was admitted into evidence, and stated:
Joe Reichel and Charles' brother, Mike, he used me to kill those people and set up Charles. The containers Joe gave Charles had powdered sugar with a little arsenic, just enough to get rid of the animals.
Michael almost took too much by trying to make himself look like a victim. The police followed the clues just as we set them up. Mike set up the phony theft. Now they tried to double cross me. That was their first and last mistake they ever made.
Albanese I, 464 N.E.2d at 208-213.
The evidence presented in the Lake County trial was substantially similar to that set out above, except that no evidence regarding the murder of M.J. Albanese, the attempted murder of Michael Albanese, or the charges of theft was admitted. Charles Albanese did not testify in the guilt phase of the Lake County trial. The main new evidence presented in the Lake County trial was testimony by another of Charles' cellmates, John Saltz. According to Saltz, Charles hatched a scheme whereby he would give Saltz a "suicide note," written as though by Michael Albanese, Saltz would go to Michael Albanese's home, force Michael to copy and sign the note, and then Saltz would murder Michael and his wife, Gayle, by shooting them. The note, as copied by Saltz from Charles' instructions, read as follows:
We can no longer live with what we have done. We with the help of another killed the old ladies. I took arsenic myself to make Chuck look guilty but I over did it and now I'll never be the same. The sale of the zinc and scrap was actually my idea but I had him do it in a way that I could make mom [sic] believe Chuck did it alone. We wanted the company and power for ourselves. Chuck is innocent and I'm sorry for what we've done. Mom and Chuck, please take care of my children. . . .
(Lake R. vol. 10 at 1444) In exchange for these services, Saltz testified, Charles agreed to give Saltz $ 20,000, hire a lawyer for him, and make him a partner in the business. (Id. at 1436-37).
2. Developments Since Trial.
Many of Albanese's claims for habeas corpus relief focus on the reliability of the scientific evidence recited in Albanese I and set forth above. Albanese contends that the forensic tests showing high levels of arsenic in the bodies of the murder victims were unreliable. The tests were performed by a laboratory which, subsequent to the trials and direct appeals, was roundly criticized by state officials for numerous and serious methodological inadequacies. These criticisms were issued several years after the toxicology tests in question were performed and did not specifically address those results.
Samples of tissue from the three victims were quantitatively tested for arsenic by the Illinois Department of Public Health Toxicology Laboratory (hereinafter "Toxicology Laboratory") between May and September 1981. (McHenry R. vol. XXXIII at 12, 18, 20-21, 24, 26; Lake R. vol. 9 at 1185, 1193) The Toxicology Laboratory was under the direction of Chief Toxicologist Dr. John Spikes and Assistant Chief Toxicologist Dr. Joerg Pirl. The testing in Petitioner's case was primarily performed by chemist Fred Townsend. All three men testified at Albanese's trials. Townsend testified that he tested the tissue samples using the Gutzeit method of quantitation and reported his specific findings. (McHenry R. vol. XXXIII at 4-51; Lake R. vol. 9 at 1180-1209). Dr. Pirl provided testimony regarding normal levels of arsenic in various tissues and compared those levels to the Gutzeit results obtained by Townsend and reviewed by himself. (McHenry R. vol. XXXII at 52-103; Lake R. vol. 9 at 1211-39). Dr. Spikes testified about the effects of arsenic poisoning on the body and methods of testing tissues for arsenic. (McHenry R. vol. XXX at 359-98; Lake R. vol. 9 at 1150-80).
The results of the testing were dramatic. The examples listed below are from the testimony regarding Mary Lambert, but they are representative of the dozens of tests performed on tissue samples of the other victims in that they show large concentrations of arsenic in the body.
Tissue Normal Level Level in Lambert Tissue
nails (proximal) 200 micrograms 6,500 micrograms
hair (distal) 200 micrograms 400 micrograms
liver 10 micrograms 440 micrograms
gastric contents 200 micrograms 16,800 micrograms
In the spring of 1985, three years subsequent to Albanese's trials, and four years after the tests were performed, the Toxicology Laboratory and its personnel, including Drs. Spikes and Pirl, came under severe criticism for poor evidence handling and testing procedures. The Toxicology Laboratory was closed by the Department of Law Enforcement, now called the Department of State Police, after investigators determined that the Laboratory had "routinely failed to protect the chain of custody in cases submitted to it and had consistently and habitually produced inaccurate analyses of evidence." (Department of Law Enforcement "Toxicology Final Report," at 1). The investigation was triggered when the Toxicology Laboratory lost crucial evidence in a case in which law enforcement officials were trying to determine whether parents had intentionally poured acid down their child's throat. (Id. at 3). Various reports were prepared about the functioning of the facility, detailing numerous failings in health and safety practices, testing protocols, scientific equipment condition and maintenance, and management of technical staff. (Id. at 30-32; Report of Dr. Randall Baselt, May 24, 1985; Report of Director of Public Health Thomas Kirkpatrick, Jr., March 26, 1985).
Albanese argued at the May 19-21, 1986 post conviction evidentiary hearing in the McHenry County case that these developments showed that the scientific evidence used at trial was "inaccurate, unreliable and untrustworthy." (Petitioner's Br. on Post Conviction Appeal at 29). In addition to the reports mentioned above, Albanese also presented a report by Dr. Alphonse Poklis criticizing the methodology used by chemist Townsend in testing the samples in Albanese's case. Dr. Poklis, Director of St. Louis University School of Medicine Division of Forensic and Environmental Pathology, concluded from his review of the medical and toxilogical testimony and records that the quantitative analysis of specimens by the Toxicology Laboratory was "meaningless."
None of these reports was accepted as substantive evidence at the post conviction hearing because Albanese failed to produce witnesses or affidavits to vouch for their truth or accuracy. (Post Conviction R. vol. II at 283, 291). Instead, the reports were admitted for the limited purpose of preserving the record as to what Andrea Lyon, Albanese's expert witness on effectiveness of counsel and the handling of capital cases, relied upon in reaching her opinion as to the effectiveness of Albanese's attorney. (Id. at 282-83). On appeal, the Illinois Supreme Court considered the reports and assumed their accuracy, but determined that the information contained therein did not entitle Albanese to a new trial. Albanese III, 531 N.E.2d at 21-22.
has raised nineteen claims of constitutional error stemming from his convictions for murder and attempted murder ("conviction claims"), and his sentences ("sentence claims").
In reviewing his convictions and sentences, the court is mindful that its task is "to ensure that [Albanese was] not imprisoned in violation of the Constitution -- not to correct errors of fact." Herrera v. Collins, 122 L. Ed. 2d 203, 113 S. Ct. 853, 860 (1993); see Jackson v. Virginia, 443 U.S. 307, 332, 61 L. Ed. 2d 560, 99 S. Ct. 2781, n. 5 (1979) ("habeas corpus is not intended as a substitute for appeal, nor a device for reviewing the merits of guilt determinations . . . . Instead, it is designed to guard against extreme malfunctions in the state criminal justice systems.") (Stevens, J. concurring in judgment) (citation omitted).
Part One: Conviction Claims.
Albanese argues that his convictions cannot stand for any one of the following reasons: First, he received ineffective assistance of counsel (Claims 1(a) - 1(n)); Second, the trial court erred in allowing the jury to be death qualified under Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), and in allowing expert testimony regarding Albanese's financial condition (Claims 2, 3); Third, the evidence was insufficient to support Albanese's convictions (Claims 4, 5); and Fourth, the State violated his rights by withholding evidence that the Toxicology Laboratory which tested tissue samples of the victims was grossly inadequate contrary to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) (Claim 6), and by soliciting, or knowingly permitting, the introduction of perjured or patently false evidence (Claims 7-12).
I. Ineffective Assistance of Counsel.
The Sixth Amendment guarantees criminal defendants the right to effective counsel. United States v. Donaldson, 978 F.2d 381, 394 (7th Cir. 1992). Claims of ineffective assistance of counsel are governed by the two-part test set out in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To succeed on such a claim, the habeas petitioner must show both that the attorney's performance was deficient, and that the deficiency prejudiced the defense. Id. at 687. "Unless a [petitioner] makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. As this statement of the test makes clear, a petitioner bears a considerable burden in establishing ineffective assistance of counsel.
Under the first prong of the test, an attorney's performance must be evaluated for reasonableness on the facts and circumstances of the particular case viewed as of the time of counsel's conduct. Id. at 690. Review of counsel's performance is to be "highly deferential . . . . a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 76 S. Ct. 158 (1955)). Hindsight and "Monday morning quarterbacking" are to be avoided. See United States v. Donaldson, 978 F.2d at 394.
Under the second prong of the test, the petitioner must "affirmatively prove prejudice," meaning that he or she must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 693-94. The test, however, is not simply whether the outcome of the trial would have been different absent the error:
An analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him.
Lockhart v. Fretwell, 122 L. Ed. 2d 180, 113 S. Ct. 838, 842-43 (1993) (citation omitted). The inquiry, instead, is whether the attorney's performance was adequate to allow the adversarial process to operate in the particular case: "We reiterate that Strickland requires us to focus, not upon whether counsel could have done a better job, but upon whether counsel provided the assistance necessary to ensure the fundamental fairness of the proceeding whose result is being challenged." Resnover v. Pearson, 965 F.2d 1453, 1460 (7th Cir. 1992), petition for cert. filed (Feb. 26, 1993).
B. Performance of Albanese's Attorney.
Albanese was represented by Richard C. Kelly in both the McHenry trial and the Lake trial. The judge presiding over the post conviction evidentiary hearing determined that Kelly was "an experienced criminal law trial attorney." (Post Conviction R. vol. II at 291). The record bears this out. Kelly testified that he had been licensed to practice in Illinois since 1967. He had experience as an Assistant State's Attorney in Cook and McHenry Counties, an Associate Judge in McHenry County, and as a private practitioner. Sixty to 70% of Kelly's practice consisted of criminal matters. At the time of the hearing, Kelly had tried approximately 148 jury trials, including 140 criminal matters. Seventy of these involved felonies, 20 involved Class X felonies. Further, Kelly testified that he had tried eleven homicide cases. The Albanese case was the first capital case Kelly had ever tried. (Post Conviction R. vol. IX at 421-28, 462-63).
Albanese's ineffectiveness claims challenge Kelly's case preparation, generally and with regard to both the scientific and financial evidence. In addition, Albanese urges the court to find Kelly's strategic decisions constitutionally deficient.
Claim 1(a) asserts that Kelly "failed to consult with any attorneys experiencing [sic] capital litigation." Kelly disputed this at the post conviction hearing, claiming that he contacted the Cook County Public Defenders Office to obtain information about capital cases. (Post Conviction R. vol. IX at 476, 480-81). Kelly also testified that he reviewed all of the then reported Illinois death penalty cases prior to trial. (Id. at 463).
Albanese contends that "qualitative differences from capital litigation to other criminal trials and Kelly's lack of experience therein, made it incumbent upon him to do substantially more preparation than would be necessary in a normal criminal case at which he was experienced. In these circumstances, effective assistance of counsel must include talking to some experienced attorney at length as to the differences in capital litigation from other criminal litigation." (Petitioner's Resp. to Mot. to Deny Pet. at 7). Albanese cites no authority for his conclusion that only "lengthy" discussion with "some experienced attorney" is a prerequisite to effective representation, and this court has found none. In fact, Strickland teaches that effectiveness of counsel in the type of adversarial capital sentencing proceeding applicable in Illinois is governed by the same standard as for the guilt phase of trial. 466 U.S. at 686-687 ("For purposes of describing counsel's duties, therefore, Florida's [adversarial] capital sentencing proceeding need not be distinguished from an ordinary trial."). The Strickland court specifically declined to impose on counsel "detailed rules" or "guidelines" for effective assistance. Id. at 688-89. Consulting an attorney experienced in the particular matter would certainly be prudent, but is by no means constitutionally mandated.
At the post conviction hearing, Kelly alluded to another factor bearing on the reasonableness of his research into capital litigation. Kelly filed his appearance on February 22, 1982. (McHenry R. vol. I at C-64). The Illinois death penalty statute, enacted in 1977, Ill. Rev. Stat. ch. 38, § 9-1, was upheld against constitutional attack on November 21, 1979. People ex rel. Carey v. Cousins, 77 Ill. 2d 531, 397 N.E.2d 809, 34 Ill. Dec. 137 (1979), cert. denied sub nom., Brown v. Illinois, 445 U.S. 953, 100 S. Ct. 1603, 63 L. Ed. 2d 788 (1980). Between the date Carey was decided and the date Kelly came into the case, only nine appellate opinions discussing the death penalty in any detail were issued. As Kelly testified, there was no surplus of experts on capital litigation in Illinois with whom to consult, at length or otherwise. (Post Conviction R. vol. IX at 463).
While it is true that Albanese did not present these claims in precisely the same language as they appear here, the Illinois courts had a full opportunity to consider Albanese's assertion that Kelly was inadequately prepared for trial. In Albanese III, the Illinois Supreme Court specifically addressed claims that Kelly's representation was deficient because he was "ill-prepared for trial" and that he "prepared for trial in less than one month. " 531 N.E.2d at 19. In his brief before the court in Albanese III, Albanese argued that "trial counsel was ill prepared . . . and went to trial without a request for additional time within weeks of retainer." (Petitioner's Post Convention Br. at 4). This, combined with Albanese's other claims in the state courts about Kelly's lack of experience with capital litigation, sufficed to preserve the matter for federal habeas review. The claims, however, fail on the merits.
Under Strickland, to succeed on Claims 1(m) and (n), Albanese must overcome the presumption that under the circumstances as they existed in 1982, Kelly's failure to seek continuances "'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. At the post conviction hearing, Kelly explained that he had not sought a continuance before trial for two reasons. First, Albanese had already been incarcerated for more than ninety days. Second, Kelly testified that he believed going to trial sooner was to Albanese's advantage because the prosecution's case was entirely circumstantial. (Post Conviction R. vol. IX at 471). This strategic decision is not objectively unreasonable; Kelly could have rationally believed that forcing the State to go to trial earlier rather than later would result in some "holes" in the State's circumstantial case remaining unfilled. Albanese has not offered any persuasive argument to overcome the presumption that Kelly's actions were reasonable; therefore, Claims 1(m) and (n) provide Petitioner with no basis for relief.
2. Preparation for Scientific Evidence.
Claim 1(b) asserts that Kelly "failed to obtain and consult with an expert in chemistry or toxicology, who could have refuted or discredited the expert testimony of the State's expert witnesses." The record from the post conviction hearing is clear that Kelly did consult an expert on arsenic poisoning, Dr. Shirley Conibear, before trial. Albanese asserts, however, that Dr. Conibear was not the right kind of expert; according to Albanese, Kelly should have retained a chemist or toxicologist who was familiar with methods employed to quantitate arsenic in substances. (Petitioner's Resp. to Mot. to Deny Pet. at 8). This claim invites the kind of hindsight analysis of counsel's performance prohibited by Strickland. The question is not what would be reasonable preparation and investigation now, when it is a matter of public record that the Toxicology Laboratory which performed the quantitative arsenic tests was closed by the state for serious inadequacies. Rather, the question is whether Kelly's investigation and preparation were reasonable in 1982, three years before the laboratory was closed.
The post conviction record reveals that Kelly enlisted Mel Wallace, a professor of criminal justice at McHenry County College, to locate an expert in arsenic poisoning. Wallace made at least a dozen calls looking for an arsenic expert. (Post Conviction R. vol. IX at 85-87). Kelly testified that he contacted a toxicologist named Gayle Marks, described the case to her, and was told that an expert in arsenic poisoning would be of more help than a toxicologist. According to Kelly, it was Dr. Marks who referred him to Dr. Conibear. (Post Conviction R. vol. IX at 432). This version of the facts did not go undisputed. Dr. Marks filed an affidavit stating that, to the best of her recollection, Kelly never contacted her about the Albanese case. The post conviction judge did not expressly resolve this factual conflict: did Kelly contact Dr. Marks or not? Given the judge's ultimate conclusion that Kelly's investigation was reasonable under the circumstances, it is implicit that he credited Kelly's testimony. Determinations of credibility are the province of trial judges who observe the witnesses in question, Marshall v. Lonberger, 459 U.S. 422, 434, 74 L. Ed. 2d 646, 103 S. Ct. 843 (1983), and are not to be reevaluated by federal courts hearing habeas cases.
According to Kelly's version of the facts, he contacted the type of expert (a toxicologist) Albanese claims would have been proper, and the toxicologist told him to contact an expert in arsenic poisoning, Dr. Conibear. After reviewing medical records, autopsy reports, and arsenic test results, Dr. Conibear told Kelly that Lambert and Mueller had died of arsenic poisoning. (Post Conviction R. vol. VIII at 398, 401). She noted that the symptoms of the surviving victims were definitely caused by arsenic.
In addition, she told Kelly that the date of arsenic ingestion by Mueller and Lambert was August 3, 1980, the day of the last Albanese family dinner. (Id. at 401-02). Under these circumstances, it would have been reasonable for Kelly to conclude that a battle of the experts on the medical evidence was not in his client's best interests.
Although Albanese asserts that Dr. Conibear was the wrong expert witness, he has never presented the right expert witness, or shown that the right witness would have testified favorably to the defense. Albanese offered into evidence at the post conviction hearing two reports authored by Dr. Baselt and Dr. Poklis, respectively. The Baselt report, written in 1985, criticized the procedures followed by the Illinois Department of Public Health Toxicology. The Poklis report, written in April 1986, directly attacked the toxicology reports used at Albanese's trial. As was noted supra at 15, Albanese did not offer any authentication for the reports. The post conviction judge admitted these reports for the limited purpose of preserving the record on the issue of ineffective assistance of counsel. (Post Conviction R. vol. II at 282-83). Albanese had offered the testimony of Ms. Andrea Lyon, an attorney specializing in capital crime litigation, who opined that Kelly was ineffective due to his failure to discover the types of irregularities at the Toxicology Laboratory reported by Drs. Baselt and Poklis. Obviously, Albanese knew of Dr. Poklis and Dr. Baselt in May of 1986 (the date of the post conviction hearing). Yet he did not present their testimony by deposition, affidavit, or otherwise. The record does not reveal that Albanese even attempted to offer the type of authenticating evidence necessary to admit the Baselt and Poklis reports as substantive evidence.
Albanese has not, therefore, established that had Kelly contacted the "right" expert, that expert would have testified at trial that the quantitative tests for arsenic were unreliable. Having failed to demonstrate that Kelly's representation was deficient with regard to consulting and hiring an expert, Albanese cannot obtain relief from his convictions based on Claim 1(b).
Claim 1(c) is similar to 1(b): Kelly's representation was ineffective because he "failed to adequately educate himself in the field of toxicology, specifically with respect to arsenic poisoning and the methodology employed in investigating the same. Albanese's argument is based on speculation and hindsight. Under the scenario envisioned by Albanese, Kelly would have learned enough about arsenic testing methodology to establish that the Toxicology Laboratory tests were unreliable; in other words, he would have come to the same conclusion as Dr. Poklis. As discussed above, Albanese has failed to present substantive evidence that the test results actually were unreliable, despite the fact that, with the passage of time from 1981 to 1986, the Toxicology Laboratory had been closed, providing Albanese with many more clues to possible testing irregularities than Kelly had had in 1982.
A review of the trial transcripts reveals that Kelly had familiarized himself with arsenic testing technologies. He consistently elicited testimony on cross-examination from the prosecution's experts that the Gutzeit method of quantitating arsenic in tissues was well over one hundred years old, and that more modern methods were available. He questioned the State's experts about the history, sensitivity, and accuracy of these other methods, which included atomic absorption spectrometry, neuron activation analysis, and x-ray fluorescence. (See McHenry R. vol. XXXII at 84-89).
In closing argument in the McHenry trial, Kelly noted that the equipment necessary to perform the more modern and accurate atomic absorption test was available in the Department of Public Health's Springfield laboratory. (McHenry R. vol. XXXVI at 117-18). Kelly also took full advantage of the weak testimony of Fred Townsend, the chemist who performed the tests in question. Townsend, as Kelly pointed out in closing argument, had not been able to remember the name of the college he attended on the stand. Kelly questioned the ability of this 71-year-old chemist to perform the various complicated steps involved in the Gutzeit test and to interpret the results:
Fred Townsend is a nice old elderly gentleman, and I have nothing against him because of his age. But he should have been retired from the Department of Toxicology years ago. And very simply why? Because he got up there on the stand, and he couldn't even remember the name of the college that he went to. But yet he took this test . . . . and he couldn't remember any of the dates that he performed it. . . .
Now, how many steps were there to this [Gutzeit] test that this man had to perform? . . . first of all, [Townsend] said that the sample . . . has to be prepared in a kjeldahl solution, liquified and colorless. The second step is placing this solution into the Gutzeit apparatus . . . . Then it is diluted to a standard variance with distilled water. Then hydrochloric acid is added; two milliliters -- and [Townsend] was very specific about that -- of potassium iodide is added. When the vapor is in the upper column, zinc is added. This test must be done at zero degrees Fahrenheit temperature.
Now, here's a man who couldn't remember the name of his college; and he's performing this test. And this is only about half way through the test. . . .
(McHenry R. vol. XXXVI at 115-17).
At the post conviction hearing, Kelly testified that Dr. Conibear gave him several text books on toxicology, and that he read them in preparation for trial. He kept these books with him at counsel table and occasionally used them in conducting cross-examination. (Post Conviction R. vol. IX at 435-36). Perhaps Kelly could have mounted a better defense, but that is not the inquiry. To obtain habeas relief, Petitioner is required to overcome the presumption that Kelly's preparation was adequate and his performance sufficient to ensure the fundamental fairness of the trial proceedings. See Resnover v. Pearson, 965 F.2d at 1460. Petitioner has not done so; relief based on Claim 1(c) is denied.
Claim 1(h) concerns arsenic testing performed on various tissue samples and other objects by the Northern Illinois State Crime Laboratory ("Crime Laboratory"), not to be confused with the Department of Public Health Toxicology. Specifically, Albanese contends that Kelly's representation was ineffective because he "failed to rebut evidence of the testing done by the Northern Illinois State Crime lab which indicated the presence of arsenic [in] several items relevant to petitioner's case, although he was aware that the qualitative nature of that testing, as opposed to quantitative testing, was invalid for the purposes for which the testing was done." (Emphasis added). Albanese has not challenged the methodological validity of the qualitative tests. Rather, Albanese asserts that the very nature of the tests made them invalid for "criminal investigatory purposes." (Petition at P 33).
This claim has its origin in Dr. Conibear's testimony at the post conviction hearing that the qualitative tests on non-tissue samples were "worthless," and that she so informed Kelly prior to trial.
I told [Kelly] that some of what I would call the environmental measurements of arsenic in things other than people's bodies I felt were not valid. They were what I would call qualitative. That is they said yes, there was arsenic there. They didn't say how much. They didn't quantitate the arsenic. And, I told him that arsenic was present in many things and that this did not demonstrate that these items had not been the source of the poisoning . . . . The fact that the tests themselves [on the non-tissue] were not quantitative meant that they really were worthless.
(Post Conviction R. vol. VIII at 403-04) (emphasis added).
The Crime Laboratory tested samples of hair and fingernails from various individuals and certain other non-tissue objects for the presence of arsenic using the x-ray fluorescence method. Chief Chemist Andrew Principe testified in both trials that the Crime Laboratory tested samples qualitatively only; any arsenic found to be present was not quantitated. Specifically, Principe testified at the McHenry trial that arsenic was present in the nails and hair of Mary Lambert; arsenic was present in the hair of Marion Mueller; arsenic was present in Michael's hair and nails. No arsenic was found to be present in the hair or nails of Charles Albanese; no arsenic was detected in the hair or nails of employees of Allied Die Casting Corporation.
Arsenic was not detected in soil samples taken from around Marion Mueller's grave, although other elements were detected. Objects tested for the presence of arsenic included a jar, a thermos bottle, and cookie crumbs. The contents of a jar was tested, revealing the presence of arsenic and no other elements.
A scraping from Michael's thermos showed the presence of arsenic, while a sample of the thermos bottle itself did not. Crumbs from a cookie jar tested positive for the presence of arsenic. (McHenry R. vol. XXXIII at 75-97, 109).
There were fewer Crime Laboratory test results presented at the Lake County trial because the murder of M.J. and attempted murder of Michael were not at issue. Principe testified that the Crime Laboratory had performed qualitative, not quantitative, tests for the presence of arsenic in hair, nail, soil, and enbalming fluid samples. The results were as follows: arsenic was present in Marion Mueller's nails and in Mary Lambert's hair; arsenic was not detected in samples of soil from either woman's grave, nor in samples of enbalming fluid; arsenic was not present in samples of hair and nails from Charles Albanese. (Lake R. vol. 9 at 1275-80).
Although Claim 1(h) has not been clearly argued, the court infers from the record and briefs filed on post conviction review and in support of the Petition, that Albanese is claiming that the tests on the jar, the cookie crumbs, and thermos bottle were worthless.
More importantly, Albanese argues that Kelly knew those tests were worthless because Dr. Conibear so informed him. The reason the tests were worthless, according to Dr. Conibear, was that a mere determination that the crumbs and thermos contained arsenic could not establish that lethal doses of arsenic were delivered from those sources. (Post Conviction R. vol. VIII at 403). After all, as was pointed out during both trials, arsenic is an elemental substance, present in many objects, including humans, naturally.
Kelly disputed Dr. Conibear's testimony. He testified at the post conviction hearing that Dr. Conibear never told him the qualitative tests were worthless. (Post Conviction R. vol. IX at 453). The judge did not resolve this conflict. It is not the province of this court to weigh the credibility of these witnesses, and in this case it is also unnecessary. If the court were to presume that Dr. Conibear's testimony was correct, and that Kelly had notice that the qualitative tests were incompetent to show that the cookies and thermos were the vessels for poisoning, then Kelly's performance in this particular could conceivably constitute deficient assistance under Strickland. If the tests on the cookies and thermos bottle were worthless, then the State's theory in the McHenry case was faulty in positing the methods by which Albanese introduced arsenic to his father M.J. (through cookies) and his brother Michael (thermos of soup). The State emphasized this evidence in urging that Albanese had opportunity to commit the crimes charged. (McHenry R. vol. XXXVI at 72-75). The story presented by the State about poisoned pea-soup and cookies must have had some prime-time drama appeal to the jury, which Kelly might have been able to contradict, given what he knew at the time of the McHenry trial, not at some future time.
The court does not and need not decide whether Kelly's performance was deficient in this regard, however, because Albanese has not shown prejudice, the second hurdle to be cleared under the Strickland test. In order to establish prejudice, Albanese must show that the result of the McHenry trial probably would have been different, but for Kelly's failure to challenge the cookie and thermos tests, such that confidence in the outcome of the trial is undermined. See Strickland, 466 U.S. at 693. Albanese has not done so. The State presented other evidence to show that Albanese had access to all of the murder victims. The cookie jar and thermos bottle tests purported to pinpoint how arsenic was introduced to M.J. and Michael, but other evidence showed that Albanese worked with M.J. and Michael on a daily basis at the offices of Allied Die Casting. That evidence of opportunity would have remained, even if Kelly had argued that the cookie and thermos tests were inconclusive. Albanese has shown neither a probability that he would have been acquitted had Kelly done as Albanese now suggests, nor that the alleged error rendered his trial unreliable.
3. Preparation for Financial Evidence.
The State posited that Albanese's motive for the murders was to improve his precarious financial position. Kelly countered with evidence at the McHenry trial, in the form of expert testimony, that Albanese's financial condition was not "critical," as urged by the State. Albanese now challenges Kelly's preparation of the expert witness, James Woods.
Albanese argues that errors in the State's financial case, overstating items of expense and failing to show items of income, were crucial because his supposed motive for murder becomes weaker with every dollar added to the asset column. That argument is beside the point. The question is whether Kelly's representation fails constitutional muster due to his handling of the financial aspect of the State's case. On ...