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U.S. EX REL. HALL v. WASHINGTON

February 22, 1996

UNITED STATES OF AMERICA EX REL. ANTHONY HALL, PETITIONER,
v.
ODIE WASHINGTON, DIRECTOR OF THE ILLINOIS DEPARTMENT OF CORRECTIONS, RESPONDENT.



The opinion of the court was delivered by: McDADE, District Judge.

        ORDER

Before the Court is Petitioner Anthony Hall's Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 By a Person in State Custody Under a Sentence of Capital Punishment [Doc. # 6].

BACKGROUND

Procedural History

On April 17, 1984, following a bench trial in the Circuit Court of McLean County, Illinois, Anthony Hall was found guilty of murder. After the court determined that he had waived his right to a jury sentencing, the court sentenced him to death. Hall filed a direct appeal to the Illinois Supreme Court which affirmed his conviction and sentence on October 17, 1986, People v. Hall, 114 Ill.2d 376, 102 Ill.Dec. 322, 499 N.E.2d 1335 (1986) ("Hall I"), and denied his petition for rehearing on December 1, 1986. The United States Supreme Court denied Hall's petition for writ of certiorari on March 30, 1987, Hall v. Illinois, 480 U.S. 951, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987), and his petition for rehearing on May 18, 1987. Hall v. Illinois, 481 U.S. 1060, 107 S.Ct. 2205, 95 L.Ed.2d 860 (1987).

Hall subsequently filed a state post-conviction petition in the Circuit Court of McLean County on September 28, 1987. On March 6, 1991, the trial court denied the petition. On September 23, 1994, the Illinois Supreme Court affirmed the denial of post-conviction relief. People v. Hall, 157 Ill.2d 324, 193 Ill.Dec. 98, 626 N.E.2d 131 (1993) ("Hall II"). The petition for rehearing was denied on January 31, 1994. On November 14, 1994, the United States Supreme Court denied Hall's petition for writ of certiorari. Hall v. Illinois, ___ U.S. ___, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994).

On March 7, 1995, the Illinois Supreme Court stayed Hall's execution pending the filing of his petition for habeas corpus in federal court. Hall filed a § 2254 Petition in this Court on March 23, 1995. By leave of this Court, an Amended § 2254 Petition was filed on July 11, 1995, which asserts the following claims:

  I.  MR. HALL WAS DEPRIVED OF HIS CONSTITUTIONAL
      RIGHTS UNDER THE EIGHTH AND FOURTEENTH
      AMENDMENTS WHEN THE TRIAL COURT PRONOUNCED A
      DEATH SENTENCE, ERRONEOUSLY HOLDING THAT
      ILLINOIS LAW PREVENTED

      IT FROM BEING MERCIFUL AND FROM FOLLOWING ITS
      INDIVIDUAL CHOICE TO IMPOSE A SENTENCE OF LIFE
      IMPRISONMENT
  II. TRIAL COUNSEL WERE CONSTITUTIONALLY
      INEFFECTIVE AT THE CAPITAL SENTENCING HEARING
      WHERE THEY FAILED TO INVESTIGATE AND PRESENT
      ANY OF TEN SIGNIFICANT AND AVAILABLE
      MITIGATION WITNESSES AND WHERE THEY FAILED TO
      HIRE A MITIGATION EXPERT AND FAILED TO ASSIST
      IN THE PREPARATION OF THE PRESENTENCE REPORT
III.  MR. HALL'S RIGHTS UNDER THE EIGHTH AND
      FOURTEENTH AMENDMENTS WERE VIOLATED WHERE HE
      DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE HIS
      RIGHT TO A SENTENCING JURY BECAUSE NEITHER THE
      COURT NOR COUNSEL INFORMED HIM THAT A JURY'S
      DECISION TO IMPOSE THE DEATH PENALTY MUST BE
      UNANIMOUS OR ELSE NO DEATH PENALTY MAY BE
      IMPOSED
  IV. THE TRIAL JUDGE'S REFUSAL TO RECUSE HIMSELF
      AFTER HE HAD BEEN PHYSICALLY ASSAULTED BY THE
      DEFENDANT VIOLATED THE RIGHT TO A TRIAL AND
      SENTENCING HEARING BEFORE AN IMPARTIAL
      ADJUDICATOR AS GUARANTEED BY THE FOURTEENTH
      AMENDMENT AND BY THE EIGHTH AMENDMENT
  V.  THE TRIAL JUDGE'S REFUSAL TO ALLOW DEFENSE
      COUNSEL TO WITHDRAW AFTER THEY HAD A SERIES OF
      DISPUTES WITH MR. HALL CULMINATING IN MR.
      HALL'S PHYSICAL ATTACK ON COUNSEL AND AFTER
      COUNSEL'S ASSERTION THAT THE ATTORNEY/CLIENT
      RELATIONSHIP WAS "IRRETRIEVABLY LOST" VIOLATED
      MR. HALL'S RIGHT TO THE EFFECTIVE ASSISTANCE
      OF COUNSEL UNDER THE SIXTH AND FOURTEENTH
      AMENDMENTS
  VI. MR. HALL WAS DENIED A FULL AND FAIR HEARING TO
      ESTABLISH HIS CONSTITUTIONAL CLAIMS WHERE THE
      POST-CONVICTION COURT REFUSED TO ALLOW HIGHLY
      RELEVANT EVIDENCE AND WHERE IT REFUSED TO
      RECUSE ITSELF IN THE FACE OF THE APPEARANCE OF
      PARTIALITY
  A.  The Refusal To Allow An Expert In the Defense
      of Capital Cases To Testify and Give His
      Opinion That Trial Counsel Rendered
      Prejudicially Ineffective Assistance of
      Counsel
  B.  The Refusal To Appoint A Mitigation Expert To
      Establish Prejudice In Sentencing Counsel's
      Ineffective Performance
  C.  The Trial Judge's Failure To Recuse Himself
      From The Post-Conviction Proceedings
VII.  THE ILLINOIS DEATH PENALTY STATUTE IS
      UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED
  A.  The Illinois Death Penalty Statute is
      unconstitutional on its face because it fails
      to guard against discriminatory, arbitrary and
      capricious exercise of prosecutorial
      discretion in determining which defendants
      shall be subjected to a death penalty hearing.
  B.  The Illinois Death Penalty Statute is
      unconstitutional because it is applied in an
      arbitrary, capricious and discriminatory
      manner.
  C.  The Illinois Death Penalty Statute
      unconstitutionally vests a judicial function
      in the prosecution.
  D.  The Illinois Death Penalty Statute is
      unconstitutional on its face because it fails
      to limit the nonstatutory aggravating factors
      which may be considered by the sentencing
      authority.
  E.  The Illinois Death Penalty Statute is
      unconstitutional on its face because it fails
      to require written findings with regard to
      nonstatutory aggravating factors that would
      allow meaningful review and ensure that
      improper factors were not considered at
      sentencing.
  F.  The Illinois Death Penalty Statute is
      unconstitutional because it shifts to the
      defendant the burden of proving that a
      sentence other than death is appropriate or at
      least it is unclear who bears the burden of
      proof.
  G.  The Illinois Death Penalty Statute
      unconstitutionally fails to require a
      determination that death is the appropriate
      penalty.
  H.  The Illinois Death Penalty Statute
      unconstitutionally fails to provide adequate
      notice that the State will seek the death
      penalty.
  I.  The determination by a majority of the
      Illinois Supreme Court that the Death Penalty
      Statute is unconstitutional renders the
      statute and Mr. Hall's execution
      unconstitutional.
  J.  The cumulative effect of its defects renders
      the Illinois Death Penalty Statute
      unconstitutional.

Factual Background*fn1

On February 8, 1983, the body of Frieda King was found in a small closet next to a large walk-in freezer in the Pontiac Correctional Center. An autopsy revealed that King had died from severe blood loss resulting from stab wounds in the upper portion of her back and chest. At the time of the murder, Petitioner Hall had been working as a clerk in the inmate kitchen. After an investigation, Hall was charged with the murder on February 14, 1983.

Mr. Hall's case was assigned to Judge William T. Caisley. The case remained on Judge Caisley's call throughout trial and post-conviction proceedings. On March 8, 1983, the court appointed Livingston County Public Defender David Ahlemeyer as Hall's counsel. Soon after, Hall sent a letter to Judge Caisley complaining that he was unable to establish a rapport with Ahlemeyer, apparently out of fear that the public defender's ties to the community and political concerns would weaken his ability to represent Hall. In a second letter to Judge Caisley dated June 20, 1983, Hall continued to express dissatisfaction with Ahlemeyer and asked to be represented by private counsel. Hall wrote that a "conflict of interest [between himself and Ahlemeyer is] an understatement" of the situation.

On July 11, 1983, Ahlemeyer filed a motion for a fitness hearing on the ground that "defendant refuses to cooperate with counsel and refuses to visit with him at the Pontiac Correctional Center." On August 17, 1983, the court held a hearing to consider Hall's motion to discharge Ahlemeyer and Ahlemeyer's motion to withdraw as Hall's counsel. Ahlemeyer informed the court that Hall had refused to meet with him at the Pontiac Correctional Center on June 29, 1983. Ahlemeyer further alleged that the correspondence with Hall thereafter indicated that Hall would not cooperate with him. Ahlemeyer therefore requested leave to withdraw on the ground that it was impossible to prepare an adequate defense without the cooperation of Hall. He did assure the court, however, that he had no animosity toward Hall and that there was no conflict of interest which would affect his representation.

In requesting the appointment of other counsel, Hall informed the court that he was dissatisfied because Ahlemeyer had never provided him with discovery material despite his requests and because Ahlemeyer was often not available to take Hall's phone calls or to keep Hall fully informed as to the status of the case. Hall also claimed that he had lost confidence in Ahlemeyer's ability to vigorously contest guilt because Ahlemeyer had advised him to take a bench trial to avoid the death penalty. Finally, Hall requested counsel more experienced in capital litigation since Ahlemeyer had never been involved in a capital case before.

After hearing the State's argument in opposition to the appointment of other counsel, the court stated:

  I do find that the evidence produced here before
  this court today, the representation of the public
  defender and the representation of the defendant,
  show that there has been inadequate preparation of
  this case for trial at the present time; that is
  in part due to the fact that the public defender
  had other matters which he was attending to
  earlier in this year and was unable to confer with
  Mr. Hall and that he may have been absent from his
  office on several occasions when Mr. Hall
  attempted to call him and to that extent the
  failure to be ready for trial may be attributable
  to the public defender. I do also find that Mr.
  Hall has refused to consult with his counsel since
  June and that the public defender has on [at least
  one occasion] been out to the penitentiary . . .
  and Mr. Hall has refused to consult with him
  relevant to his defense . . . and so I do find
  that a portion of the failure to be ready for
  trial on the defense's part rests with the
  defendant in failing to accept a visit from the
  Public Defender on one and possibly two occasions,
  and it is obvious to the court from what has
  transpired here in open court today that there
  does appear to be a lack of a good working
  relationship between the defendant and his
  counsel.

The court ruled that, while it "is apparent that [Hall and counsel] are not getting along well together . . . that there is some bickering going on here, [this does not] constitute cause for the appointment of counsel other than the Public Defender." The court also found that counsel's lack of experience in capital litigation did not call for the appointment of other counsel. The court reasoned that an indigent defendant is entitled only to representation by the Public Defender and not by counsel of his choice. Ahlemeyer then asked that the court disregard any pro se motions the defendant filed. The court thereafter granted Ahlemeyer's motion for a fitness hearing.

The fitness hearing was held on October 4, 1983. Ahlemeyer offered into evidence the report of Dr. Robert Chapman who concluded that Hall was psychologically fit to stand trial. Ahlemeyer requested to testify, and he was examined by the court. He testified that Hall continually refused to meet with Ahlemeyer or to assist Ahlemeyer on the case. As a result, Ahlemeyer was of the opinion that it was impossible to prepare an adequate defense. However, Hall testified that his refusal to cooperate with Ahlemeyer was a "deliberate and rational act" based upon Ahlemeyer's collusion with the State. He then told the court: "I am not going to cooperate with him and if he comes within an arm's length of me I will spare you the particulars. If that is what I have to do to get him off this case, I will rise to that occasion. I can only get an assault charge." Hall further stated that he would not cooperate with any local counsel, explaining that he had written to "private practice attorneys in the Bloomington area and they are so unethical they won't answer my letters." The court ruled that Hall was fit for trial and continued the matter until November 1, 1983.

On November 1, 1983, Ahlemeyer requested that Hall be shackled while he was in the courtroom. The court, after reading a letter addressed to the court in which Hall substantially repeated the threat made earlier, ordered Hall shackled. The court then indicated that it would entertain Hall's renewed motion for other counsel. Hall indicated he did not want to deal with Ahlemeyer or any other local counsel. He also informed the court that a private attorney, Shelly Bannister, had corresponded with him and agreed to represent him if the court would order her appointment. A letter from Bannister to the court, which was made part of the record, indicated that she had extensive background in criminal cases arising from the penitentiary, that she had discussed the case with Hall and was able to cooperate with him, and that she was willing to accept appointment as Hall's counsel.

Ahlemeyer also renewed his motion to withdraw as counsel. Ahlemeyer argued that the physical threat Hall made in open court was a changed circumstance which required Ahlemeyer's withdrawal. He said that the threat gave "rise to a conflict between the defendant and myself that would make it very difficult for me to represent him." Ahlemeyer said that even if the defendant were rendered "absolutely immobile," the threat still "would create a conflict in my own mind." Ahlemeyer also stated: "I personally feel that his threats both in the courtroom and by letter to me were simply a part of his . . . tactics of putting the court in the position not knowing what to do as far as restraining the Public Defender." Ahlemeyer said he regretted the need for the shackling. The following then occurred:

  Mr. Ahlemeyer: I personally think, your Honor, his
    being shackled while I prepare the case with him
    would not — why should I get away from you, are
    you threatening me again?

Defendant: No, I am not threatening you.

  Mr. Ahlemeyer: What did you say, say it louder so
    the court reporter can get it on the record.

Defendant: That was off the record.

Mr. Ahlemeyer: He said "get away from me."

  Defendant: Yes, Get away from me. I am afraid of
    you. Keep him away from me.

The Court: Please have a seat.

  Defendant: I am afraid of that man, keep him away
    from me.

The Court: Mr. Hall, have a seat.

Defendant: You understand?

The Court: I understand.

  Defendant: Keep him away from me, I am afraid of
    him.

The Court: Just please take a seat.

  Mr. Ahlemeyer: I would simply state your Honor, I
    don't think the shackling would inhibit any
    preparation for trial . . . I would agree with
    Mr. Hall that being shackled in the courtroom is
    not the best procedure and may be something that
    would have to be overcome, but unfortunately I
    don't think that he has left us with any choice
    in the matter.

The court denied the motions to replace Ahlemeyer as counsel and to appoint Shelly Bannister as Hall's counsel. The court then announced that it would meet in chambers off the record separately first with Hall and then with Ahlemeyer. After these conferences, the court indicated that it had discussed the possibility of appointing the Public Defender of McLean County to assist Ahlemeyer in the defense. While Hall initially refused this offer, on December 5, 1983, he acquiesced to the court's appointment of Steven Skelton, the Public Defender of McLean County.

The selection of the jury for Hall's trial commenced on February 21, 1984. Just prior to jury selection, the court ordered that Hall be and remain unshackled for the trial. The proceedings continued through the selection of the jury. At that point, Hall made a motion to the court saying there were certain witnesses he wanted to testify but that his counsel refused to call them. Defense counsel stated that these witnesses would harm the defense, and if they were called, Hall would have to represent himself. Hall thereby made a motion to conduct the trial pro se. The court urged Hall to consider the matter overnight and stayed the proceedings until the next day.

The following day, after Hall's continued insistence that he be allowed to proceed pro se, the court adjourned the proceedings to the conference room so that it could talk privately with defense counsel and Hall. During this conversation, the court advised Hall that it would be "foolhardy" to conduct the trial pro se. Hall in response asked the court if he could proceed pro se but have counsel sit with him, advise him, and pose objections for him. Ahlemeyer objected "strenuously" to this arrangement, calling it half-way representation and a violation of "every ethical code." The court asked Hall who the witnesses were that he wished to call, but before Hall could answer, Ahlemeyer objected because he believed it possible that a jury trial might still be waived and that Judge Caisley could then be the trier of fact. Judge Caisley then suggested that he (Judge Caisley) leave the room and that Hall's objections be placed on the record in his absence.

There followed an interruption in the record, after which the court stated:

  Let the record show that the defendant has now
  been removed and that the prosecution is now
  present in chambers and that we are outside the
  presence of the jury and the persons assembled in
  the courtroom, and let the record further show
  that defense counsel, Steven Skelton has just been
  struck on the head with a chair and that the court
  has also been struck by defendant on the head with
  his fist and at this point, bearing in mind the
  previous threats that were made by the defendant
  at the pretrial stage against defense counsel, the
  court is going to order from this stage on the
  defendant shall be shackled at all times whether
  in the presence of the jury or not because it is
  essential for the security of the court and the
  officers of the court. This decision has been made
  only with most reluctance, but I think that with
  this overt act and the fact that one defense
  counsel and the court itself has been attacked by
  this defendant indicates the necessity of this
  step which is most reluctantly taken.

Ahlemeyer and Skelton subsequently testified that, not only had Hall struck Skelton over the head with a chair, but he had also thrown a chair at Ahlemeyer before punching Judge Caisley. Skelton's injuries included "a pretty good lump and a welt, a concussion." His jacket was ripped down the back. Skelton had headaches continuously for two weeks thereafter, causing him to consult his physician. Ahlemeyer slightly injured his leg as he tripped over the court reporter's machine on the way out the door. Ahlemeyer and Skelton testified that Judge Caisley was the "most severely hurt" of the three. Medical personnel at the courthouse told him to lie down, and he did so for about a half hour. He had abrasions and contusions on his head. Judge Caisley disagreed with defense counsel's assessment as follows: "I was struck in the head, and I did suffer a contusion, swollen slightly in the head, and I was not significantly injured."

After the attack, Hall was removed from the conference room by several correctional officers and was ordered to be shackled by the court. After this was done, Hall was brought back into the court outside the presence of the jury. The court then asked Hall if he still wished to proceed without counsel. When Hall did not respond, the court assumed that his silence constituted a withdrawal of his motion.

Defense counsel then made another motion to withdraw from the case, stating that they could not "ethically or morally" proceed on Hall's behalf and that any attorney-client relationship which had previously existed was now "irretrievably lost." They also pointed out that the occasion may arise when they might be called to testify against Hall in a separate proceeding arising from the battery. However, the court denied the motion saying that "under the circumstances, just minutes before the trial is to begin I don't think at this point I can in all fairness allow defense counsel to withdraw."

Defense counsel also asked the court to reconsider its decision that Hall's silence constituted a withdrawal of his motion to proceed pro se. Counsel pointed out that the last thing Hall had said was that he still wanted to represent himself and that the matter had never been adequately resolved. The court responded that Hall had never unequivocally stated that he did not want counsel and thus he had never knowingly waived his right to counsel.

Defense counsel next made a motion for a mistrial, arguing that the occurrence in the conference room had tainted the jury. The court denied the motion for a mistrial saying that a defendant could not, by his own misconduct, bring about a mistrial. Moreover, the court found that the conflict between Hall and his counsel afforded no grounds for mistrial, nor did the possibility that the jury might have heard the scuffle in chambers.

Defense counsel further asked the court to recuse itself, arguing that it would be impossible for the court to be fair after being struck on the head by Hall. The court denied the motion for recusal, saying that the interests of "proceeding to justice . . . requires a certain element of courage to go forward" and that it would not allow the fact that Hall had struck the court to prejudice or influence it.

The court allowed Hall back into the courtroom, but required that he sit away from his counsel, with several guards seated behind him, and with his hands and feet cuffed. Hall made another motion to waive his right to counsel and proceed pro se. The court questioned Hall and found that there was no knowing and intelligent waiver. Hall told the court, "I still don't understand a word you said," and accused Skelton of hitting him. The motion was denied.

During the prosecution's opening statement to the jury, Hall interrupted to inform the court that he wanted to waive his right to a jury trial. After the prosecution concluded its opening statement and defense counsel reserved an opening statement, the jury was excused and counsel repeated Hall's request to waive a trial by jury. The court admonished Hall as to the charges against him, and that the court would determine his guilt or innocence and the range of possible sentences if judgment ...


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