Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 4650 Marvin E. Aspen, Chief Judge.
Before POSNER, Chief Judge, and BAUER and RIPPLE, Circuit Judges.
Dennis Emerson (also known as Dennis Jackson) was convicted by a jury in an Illinois state court of a murder committed in 1979 when he was 27 years old, was sentenced to death by the same jury, won a new trial from the state supreme court for trial error, People v. Emerson, 455 N.E.2d 41 (Ill. 1983), at his second trial was again convicted and sentenced to death, appealed unsuccessfully, People v. Emerson, 522 N.E.2d 1109 (Ill. 1987), failed to obtain any relief in state postconviction proceedings, People v. Emerson, 606 N.E.2d 1123 (Ill. 1992), and having thus exhausted his state remedies sought habeas corpus in the federal district court in Chicago on the ground that his counsel at the second trial had been incompetent in both the guilt and sentencing phases of the trial. The district court rejected the challenge so far as the guilt phase was concerned but accepted it with regard to sentencing and ordered that he be resentenced. United States ex rel. Emerson v. Gramley, 883 F. Supp. 225 (N.D. Ill. 1995). Both sides appeal.
The day after the appeals were argued to us, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, which among other things amends 28 U.S.C. sec. 2254(d) to require federal courts in habeas corpus proceedings to give greater deference to the determinations made by state courts than they were required to do under the previous law. Although three months have elapsed since the enactment of this highly publicized law, the state has not asked us to consider its possible bearing on these appeals, and we consider the issue waived. Rivera v. Department of Corrections, 915 F.2d 280, 283 (7th Cir. 1990). Of course, if the issue goes to the subject-matter jurisdiction of the federal district court, it cannot be waived, and we must consider it on our own. But we do not think it does. It affects the scope of federal judicial review of state court determinations rather than the power of review. Cf. Eaglin v. Welborn, 57 F.3d 496, 498-99 (7th Cir. 1995) (en banc).
Here, briefly, are the facts out of which this proceeding arises. Robert Ray, an acquaintance of Emerson's, owned and operated a bar in Chicago. On the fatal day Emerson called Ray several times and told him that he was coming to see him. Emerson arrived with his brother Richard Jackson between 1:15 a.m. and 2 a.m., shortly after the bar closed. Ray, Emerson, and Jackson sat and talked in Ray's apartment, which was at the back of the bar. Ray's girlfriend, Delinda Byrd, joined them. According to Ray's testimony at both trials, at some point after she arrived and Ray returned from a brief trip to a store to buy cigarettes Emerson pulled out a gun, ordered Ray and Byrd to lie on the floor, bound their hands and feet with electrical cord, and then ransacked the apartment for guns and jewelry. He also searched the two victims and, finding about $600 on Byrd, took it. Jackson found a blade from a broken scissors or shears in the kitchen of the apartment and gave it to Emerson, telling him, "Here, Dennis, use these." Emerson stabbed Ray twice in the chest and Byrd five times in the back. Then he set a fire in the bedroom of the apartment and with Jackson's help dragged Ray and Byrd into the bedroom and fastened the door from the outside with a coat hanger. Emerson and Jackson then left the apartment.
Ray managed to free his hands, hobble over to the window (his feet were still tied together), and fall out, dropping six or eight feet to the bottom of the airshaft between his building and the one next door. Byrd managed to follow him into the airshaft. Ray untied his feet and her hands and feet. Ray (but not Byrd) was able to get into a different room of the apartment through a window giving on the airshaft. He rushed out of the building, which was now burning furiously. The fire department had already been summoned. Firemen arrived at about 4 a.m., but were unable to extricate Byrd from the airshaft until they put out the fire. By then she was dead from burns and loss of blood. Ray told the police at the scene that Jackson and Emerson had been the assailants, and police immediately went to the brothers' home, arriving at 4:15 a.m. but finding no males there. Ray spent nine days in hospital recovering from the stab wounds and smoke inhalation.
Jackson and Emerson were tried together. Although Jackson was found guilty of murder along with Emerson, he was not sentenced to death, perhaps because, unlike Emerson, he had not done the stabbing or burning and, also unlike Emerson, he was not convicted of arson. Both were convicted of attempted murder and armed robbery as well as of murder. Jackson, like Emerson, won a new trial on the basis of trial error. People v. Jackson, 458 N.E.2d 59 (Ill. App. 1983). In the second round, Jackson and Emerson were again tried together, but Jackson waived a jury, with the result that the judge (the same judge, incidentally, who had presided at the first trial of the two defendants) was the trier of fact in his case. The judge convicted him, and this time the conviction was upheld on appeal. People v. Jackson, 507 N.E.2d 89 (Ill. App. 1987).
Ray was the principal witness for the prosecution at both trials, for no fingerprint or other physical evidence tying the defendants to the crime was produced and neither the half scissors or shears used in the stabbings nor any of the things stolen from Ray's apartment have ever been found. At Emerson's first trial, Ricky Jackson, another of Emerson's brothers, testified that he (Ricky) was not at Emerson's house the night of the murder. Emerson took the stand in that trial, denied any involvement in the crimes, and was impeached with his lengthy criminal record. He testified, contradicting Ricky, that Ricky had been sleeping on the couch in the living room of their home on the fatal night while he was in the basement listening to records until 5 a.m. He also testified, contradicting himself, that he had left home at 3:30 or 4 to visit his ex-wife. He testified that before the murder he had lent Ray $5,000 from the proceeds of a bank robbery and had been unable to obtain repayment. The theory of the defense was that Ray had accused Emerson of participation in the murder in order to avoid having to repay the loan. The jury wasn't buying, but Emerson's conviction was reversed because of improper statements by the prosecution and erroneous evidentiary rulings, including the admission of a prior consistent statement by Ray. Despite the strength of the case against Emerson, the state supreme court held that the errors and improprieties had not been harmless.
The lawyers who represented Emerson at his first trial did not represent him at his second trial, apparently because he could no longer afford to pay their fees. A lawyer named Earl Washington was appointed at the request of Emerson and his family to represent him. But a year later, shortly before the trial, Washington resigned the appointment because of "serious philosophical differences" with Emerson; the nature of those differences is not known. An assistant public defender named James Sammons was appointed to succeed Washington. Sammons had extensive trial experience, but it was not recent, because he had been a supervisor in the public defender's office for several years. He had tried one capital murder case in his career, but that had been before the U.S. Supreme Court developed its complicated jurisprudence of capital punishment.
Sammons reviewed the transcript of the first trial and met with Emerson once or twice before the second. The total length of this meeting or these meetings is unclear; it may have been as short as 45 minutes, or it may have exceeded an hour and a half. Sammons decided to follow a different strategy at the forthcoming trial from the one that had been employed by Emerson's lawyers at the first trial: he would try to plant in the minds of the jurors, through cross-examination of Ray, the suspicion that Ray himself had murdered Byrd. Sammons stated in his deposition that before the trial began he had told Emerson and Richard Jackson "that my feeling was that Robert Ray was lying and that he would only have one or two possible motives for lying, and that one of them being himself was responsible for the arson, for the murder, and they [Emerson and Jackson] seemed to find no fault with that theory whatsoever." Elaborating, Sammons described his theory of defense in the following words: that "Robert Ray was lying; that he was lying about being secured in the burning room by means of wire binding the door closed; that he was lying about being beaten and stabbed; that he was lying about the way he described what happened immediately after the offense. . . . [I]t's quite common for persons who commit crimes in their own abode or place of business to set fire to the place to more or less cover what happened."
Sammons' strategy did not require that he call any witnesses. He did not want to call any. The only possible witnesses for the defense would have been members of Emerson's family, testifying as alibi witnesses, and it was plain from the first trial that Emerson's alibi would be ripped apart. Sammons wanted to base the defense on undermining the credibility of the prosecution's key witness. Since there was no other evidence of Emerson's guilt except Ray's testimony, if the jury could be made to doubt the truthfulness of that testimony it might decide that there was reasonable doubt and acquit without Emerson or his family having to testify only to get skewered on cross-examination.
The trial began and Sammons did manage to elicit from Ray that Ray had had arguments (though not fights) with his girlfriend and had not tried to staunch her bleeding or help her out of either the apartment or the airshaft. And he used Ray's testimony that Emerson had telephoned him repeatedly before coming over to intimate that such conduct was inconsistent with Emerson's having intended to rob Ray, since if before Emerson arrived Ray happened to tell anyone that Emerson was coming to visit him this would immediately cast suspicion on Emerson when the murder was discovered. Sammons also argued that it was unlikely that Emerson would have let Ray leave to buy cigarettes if he had been planning to rob him, since Ray might become suspicious and not return or might happen to mention to someone that Emerson and Jackson were in his apartment. Sammons' cross-examination of Ray was ...