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March 15, 1995


Appeal from the Circuit Court of Cook County. Honorable Michael P. Toomin, Judge Presiding.

Released for Publication April 13, 1995.

Presiding Justice Greiman delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

In 1946 defendant William Heirens pleaded guilty to three murders, among numerous other crimes, and received a life term in prison for each of the three murders, to be served consecutively. Defendant's convictions and continued imprisonment have been the subject of many actions in both State and Federal forums for nearly a half century.

Defendant now appeals the dismissal of his second post-conviction petition and raises numerous substantive issues arguing that (1) he was deprived of his sixth amendment right to counsel due to his trial counsel's alleged conflict of interest, ineffectiveness and disloyalty; (2) he was denied due process and effective assistance of trial counsel by the State's failure to provide defense counsel with an exculpatory statement made by a psychiatrist (referred to as the Grinker diagnosis); (3) he was denied due process by the State's alleged breach of the plea agreement based on his apparent parole ineligibility; (4) he was deprived of his right to a fair trial and impartial jury due to pretrial publicity; (5) he received ineffective assistance of post-conviction counsel, referring to his original post-conviction proceeding in 1952; (6) the trial court in the second post-conviction proceeding erred by not enforcing defendant's subpoena duces tecum; and (7) he was denied equal protection and the presumption of innocence on the grounds that he was treated differently from the date of his arrest.

The State disputes the merits of these claims and further maintains that defendant's current post-conviction action is barred by (1) the statutory limitations period for bringing post-conviction proceedings; (2) the statutory restriction allowing a convicted defendant to file only one post-conviction action; (3) laches since all witnesses and attorneys involved in this case are dead; and (4) res judicata since the claims have been decided in one or more of defendant's numerous prior actions. The State also argues waiver or mootness on certain individual claims.

For all the reasons which follow, we find that defendant's second post-conviction petition is procedurally barred and thus we affirm dismissal of the petition. Moreover, if the petition was not barred, we find defendant's claims meritless.

The facts of this case are set forth in full detail in People v. Heirens (1954), 4 Ill. 2d 131, 122 N.E.2d 231, where the Illinois Supreme Court affirmed the dismissal of defendant's first post-conviction petition, and have since been restated in subsequent decisions. Accordingly, only a summary is provided here and additional relevant facts are included where necessary to address an issue.

On June 26, 1946, police officers apprehended defendant, who was then a 17-year-old student at the university of Chicago, shortly after he burglarized an apartment. During the struggle to subdue defendant, one police officer broke three flower pots over defendant's head. Defendant suffered severe injuries and was brought unconscious to a hospital where he remained as a patient for five days.

Over the course of the next five days, the police searched defendant's residence and discovered certain stolen articles. After regaining consciousness, defendant was subjected to repeated and prolonged periods of questioning by the police and assistant State's Attorneys. On June 29, 1946, Dr. Roy Grinker injected defendant with sodium pentothal, commonly known as truth serum, and interviewed him. Defendant alleges that after the drug-induced interview, Dr. Grinker told the State's Attorney that defendant was a disassociated psychotic schizophrenic (referred to as the Grinker diagnosis). Eventually defendant disclosed information about burglaries, other crimes and one murder but attributed the crimes to a friend named George Merman. When asked to describe George, defendant described himself exactly.

In July 1946 after further investigation, the issuance of formal indictments, admissions by defendant to his counsel and parents, and discussions concerning defendant's mental state, defendant and his parents instructed defendant's attorneys to negotiate a plea with the State. Defendant eventually agreed to make a statement because he did not wish to risk being sentenced to death in the electric chair.

On September 4-5, 1946, following plea negotiations, a two-day guilty plea proceeding was held where the State presented evidence of defendant's guilt in the form of numerous witnesses, exhibits, stipulations, a lengthy report prepared by three psychiatrists as to his fitness to stand trial, and statements and confessions by defendant. When the State rested its case, defense counsel offered nothing in mitigation but made a statement to which defendant now objects. *fn1

Defendant pleaded guilty to the murders of three victims, i.e., 43-year-old Josephine Ross (June 5, 1945), 33-year-old Frances Brown (December 10, 1945), and 6-year-old Suzanne Degnan (January 6, 1946), for which he received three consecutive terms of life in prison for the three murders.

In addition, defendant, by agreement, pleaded guilty to 26 other charges including burglaries, robberies and assaults. For these crimes defendant received sentences ranging from one year to life, with the sentences to be concurrent with each other but consecutive to the sentences for murder.

During the nearly 50 years that followed, defendant's convictions were the subject of numerous post-conviction proceedings and appeals. A list of pertinent decisions follow:

(a) In July 1952, defendant filed a petition under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1953, ch. 38, par. 826.) In November 1952, nearly 40 witnesses testified at a nine-day evidentiary hearing. Post-conviction relief was denied by the trial court and the decision was affirmed by the Illinois Supreme Court which took defendant's case on direct appeal and decided the substantive issues raised. ( Heirens, 4 Ill. 2d 131, 122 N.E.2d 231.) Thereafter the United States Supreme Court denied defendant's petition for certiorari. Heirens v. Illinois (1955), 349 U.S. 947, 99 L. Ed. 1273, 75 S. Ct. 876.

(b) In May 1964 defendant initiated the next proceeding by filing a pro se petition for delayed writ of error to the Illinois Supreme Court asserting that the trial court had failed to afford him a hearing to determine his competency before it accepted his guilty plea. This petition was summarily dismissed by the Illinois Supreme Court (People v. Heirens (May 21, 1964), No. 3552) and then certiorari was denied by the United States Supreme Court ( Heirens v. Illinois (1964), 379 U.S. 868, 13 L. Ed. 2d 71, 85 S. Ct. 140).

(c) In April 1967 the United States Court of Appeals, Seventh Circuit, considered defendant's appeal from the district court's denial of his Federal habeas corpus petition, found that the writ of error proceeding in Illinois was invalid because of the failure of the State to provide appointed counsel and that defendant was entitled to a full hearing in the Illinois Supreme Court aided by such counsel. United States ex rel. Heirens v. Pate (7th Cir. 1967), 401 F.2d 147.

(d) In 1967, the Illinois Supreme Court, in response to the Federal court of appeals, appointed counsel for defendant, found that it had no jurisdiction to decide matters raised in the pending Federal habeas corpus petition, held that the issues adjudicated in the first post-conviction proceeding were not open to review, rejected contentions lacking factual support in the record, affirmed the imposition of consecutive sentences as proper and denied defendant's motion for a writ of error. ( People v. Heirens (1967), 38 Ill. 2d 294, 230 N.E.2d 875.) For the third time, the United States Supreme Court denied review of defendant's case. Heirens v. Illinois (1968), 390 U.S. 1044, 20 L. Ed. 2d 306, 88 S. Ct. 1644.

(e) In 1968 the United States Court of Appeals, Seventh Circuit, affirmed the district court's denial, without a hearing, of defendant's habeas corpus petition. ( United States ex rel. Heirens v. Pate (7th Cir. 1968), 405 F. 2d 449, cert. denied, (1969), 396 U.S. 853, 24 L. Ed. 2d 102, 90 S. Ct. 113.) The court noted that before pleading guilty, defendant was found competent by a panel of three psychiatrists and the trial court was therefore not required to impanel a jury to conduct a competency hearing. ( Heirens, 405 F. 2d at 450-51.) The Federal court further rejected defendant's claim that the State's Attorney withheld from defense counsel and from the trial court the observation made by Dr. Grinker on June 29, 1946, after injecting defendant with sodium pentothal that defendant was a dissociated psychotic schizophrenic. ( Heirens, 405 F. 2d at 451.) The court further determined that defendant waived an insanity defense, received the exact sentences for which he had bargained and could not claim that the publicity about the crimes was responsible for the guilty pleas. ( Heirens, 405 F. 2d at 451-52.) Defendant's implication that the guilty pleas would not have been made if his counsel were fully loyal was also rejected by the Federal court "since trial counsel's decision to recommend entering guilty pleas was in [defendant's] best interest." Heirens, 405 F. 2d at 453.

(f) In 1965 defendant was placed on institutional (i.e., in-prison) parole for his first life sentence. In 1966 defendant was discharged from parole on his first life sentence and then began serving his second consecutive life sentence. Since that time, defendant has instituted numerous hearings in which parole was repeatedly denied and also commenced many legal proceedings regarding the denials of parole.

(g) In March 1975 the Federal district court dismissed defendant's complaint against the Illinois Parole and Pardon Board (Board) seeking a declaratory judgment that his constitutional rights had been violated by the Board's refusal to grant him an institutional parole and contesting the recently enacted statutory basis used to compute his remaining prison terms in the form of an aggregate sentence rather than sequential service. (Heirens v. Longo (N.D. Ill. 1975), No. 74 C 2732; see Ill. Rev. Stat. 1973, ch. 38, par. 1003-3-3 (aggregated consecutive sentences effective January 1, 1973); Ill. Rev. Stat. 1973, ch. 38, par.102-16 (abandoned, in effect, the unwritten, non-statutory practice of institutional paroles).) The district court observed that defendant was denied non-institutional (i.e., non-prison) parole on three occasions (January 4 and November 29, 1973, and October 24, 1974) and held that defendant's constitutional arguments regarding the application and validity of the new Illinois law should not be considered by a Federal court before the issue is decided in the State court. Defendant's motion to vacate this March 1975 decision of the Federal district court was later denied in May 1975.

(h) In 1978 the Illinois Supreme Court denied defendant's petition for mandamus which sought to treat his remaining prison terms sequentially. Heirens v. Irving (October 11, 1978), No. 6611.

(i) In 1980 the Illinois Appellate Court, Fifth District, reviewed defendant's habeas proceeding in which defendant asserted that the application of parole statutes enacted subsequent to his confinement was ex post facto. ( People ex rel. Heirens v. Mizell (1980), 89 Ill. App. 3d 1208, 417 N.E.2d 277 (an unpublished Rule 23 order).) The fifth district denied relief and the United States Supreme Court denied defendant's petition for certiorari ( Heirens v. Mizell (1981), 451 U.S. 940, 68 L. Ed. 2d 328, 101 S. Ct. 2022).

(j) In 1982, the United States Court of Appeals, Seventh Circuit, upheld the denial of parole in an unpublished decision and the United States Supreme Court later denied defendant's petition. Heirens v. Housewright (7th Cir. 1982), 688 F. 2d 841, cert. denied, 459 U.S. 992, 74 L. Ed. 2d 389, 103 S. Ct. 351.

(k) In April 1983 a Federal magistrate issued an order for the release of defendant on parole. ( Heirens v. Mizell (7th Cir. 1984), 729 F. 2d 449, 454.) On appeal in 1984 the United States Court of Appeals, Seventh Circuit, reversed the magistrate's determination and denied defendant's petition for a writ of habeas corpus. Heirens, 729 F. 2d at 469, cert. denied, 469 U.S. 842, 83 L. Ed. 2d 85, 105 S. Ct. 147.

(l) In 1984 defendant's continued imprisonment was upheld in an unpublished decision by the Seventh Circuit Court of Appeals and defendant's petition to the United States Supreme Court was again denied. United States ex rel. Heirens v. Irving (7th Cir. 1984), 732 F. ...

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