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May 2, 1997


The opinion of the court was delivered by: ZAGEL

 Andrew Kokoraleis is under sentence of death for murder and another sentence of 30 years for aggravated kidnaping, both received in the Circuit Court of DuPage County. Before he came to trial in DuPage County, he had received a sentence of life without parole in Cook County, this sentence for a different murder. Essentially prosecutors have portrayed Kokoraleis as one of three serial killers who perpetrated horrifying crimes against women. The petitioner has always maintained that he is not guilty of any such crimes and that his confessions to them were false. By their verdict the jury implicitly accepted the serial killer characterization.

 On May 15, 1982, a 21-year-old secretary in a real estate office, Lori Borowski, disappeared between the time she left for work, about 8:15 a.m., and the time she was supposed to arrive. Her employer found her shoes and keys on the pavement in front of her office. He also found cosmetics, coins and a nutdriver, a hand tool. An owner of a nearby store reported that he saw nothing on the pavement when he was there at 7:50 a.m., but he did see a reddish-orange van parked in the normally empty lot. He said the van was similar to one which police later found being driven by Edward Spreitzer and belonging to Robin Gecht.

 On October 10, 1982, Lori Borowski's remains were discovered in an unused portion of a cemetery. The clothing was the same that she was wearing on May 15. Her blouse was up around her armpits and her bra had been lowered. Her purse was found a few yards away and jewelry was found about her remains. Some of her flesh was intact but her left nipple was missing. An anthropologist attributed the absence of the nipple to decomposition, insects, animals, or amputation. He found bone injuries in the front of the upper chest, these consistent with stab wounds from a sharp instrument like an ice pick. He found frontal wounds on two lower vertebrae, cause unknown, and three more wounds to the back, causable by knife or ice pick. Her nasal bone had been fractured.

 Ten days later the police stopped a reddish-orange van described by a crime victim. In it was Edward Spreitzer along with three knives. The interior handle on the back door was missing; it could be opened only by using a tool like a nutdriver.

 After several more days, the police arrested Robin Gecht, the car owner, and then Spreitzer whose statements in turn led the officers to Kokoraleis who, over a two-day period, confessed to the murder of Lori Borowski and several more women.

 When shown three photographs of Lori Borowski, the petitioner said, "This is the girl that Eddie Spreitzer and I killed in the cemetery." He told DuPage police that he and Spreitzer were driving in Gecht's van one morning, entered a lot, saw her, forced her into a van, drove to the cemetery, and beat and stabbed her. When she was dead they dragged her body into some weeds. He wrote out a confession in his own hand.

 In all, Kokoraleis talked to police from DuPage County and from the City of Chicago, and to Assistant State's Attorney (now Judge) Robert Bastone and spoke of the murders of other women.

 About Linda Sutton, age 26, Kokoraleis said that he and Gecht were driving in the Rush Street area of Chicago when Gecht talked with a woman who then encountered the van. They drove to a motel in Villa Park where they found Spreitzer. The woman refused to leave the van. At Gecht's request, he and Spreitzer pulled her from the van, Gecht struck her several times and, with Spreitzer's help, dragged her to a field behind the motel. Kokoraleis watched Gecht pull down the woman's slacks and Spreitzer hold her arms while Gecht raped her. Gecht then took his hatchet and hit her three or four times in the face. Over the course of three statements, he added that Gecht had struck the victim, stabbed her and amputated a breast with some piano wire. The autopsy generally confirmed the manner of death as Kokoraleis described it including the breast amputation. He recalled the murder as occurring in spring or early summer of 1981; the body was found on June 1, 1981 in a field near the motel. Her hands were cuffed behind her back; her slacks and underpants had been pulled down and her sweater and bra had been pulled up.

 About Shui Mak, aged 30, Kokoraleis said that he and Spreitzer saw an oriental woman walking alone. They offered her a ride, she accepted. But when they stopped in a field where new houses were being built and Spreitzer told her to get out she refused, so he and Spreitzer pulled her out. Spreitzer hit her several times, she fell and they dragged her a short distance. Spreitzer stabbed her three or four times with a kitchen knife. Kokoraleis became ill and went back to the van. This occurred in late May or early June 1982. Other evidence showed that Mak disappeared on May 30. Her remains were found on September 30 in a wooded area near a new housing development. She was clothed but her sweater and her slacks zipper were both torn. There were multiple fractures, some attributed to blunt trauma and others from unknown causes; stabbing was a possible cause of rib injuries.

 The defense was that the confessions were coerced. Kokoraleis said he worked for Robin Gecht from mid-1981 until May 1982. He had met Spreitzer before that period. He took part in no murders and the confessions were coerced from him. He testified that he also told police that he was involved in the murder of Lorraine Bieze. A police officer was then called to testify that he believed petitioner did not commit the Bieze murder. A store manager at the plaza where Lori Borowski was abducted said that on the morning of her disappearance he saw a woman and a man fighting near a silver or gray car parked close to the office where Borowski worked. Another person at the shopping plaza that morning noticed a silver or off-white car leaving the lot on that same morning, and he identified Spreitzer as the angry driver of the car. A third witness said that she saw a woman whom she identified, from a picture, as Lori Borowski, alive and well two weeks after her disappearance. Kokoraleis' brother and sister testified that they went with their brother to visit their mother's grave on May 24, the day after Linda Sutton's disappearance. His sister said she had seen him on May 23 at 4 or 6 in the afternoon and then again at 9 or 9:30 the next morning. She noticed nothing unusual about him that day.

 During the cross-examination of Kokoraleis, he admitted that he told the police of his participation in 16 different murders and that he did so prior to the time he claimed he was beaten by police officers. On direct examination, he had testified that police struck him to force him to make an untrue confession to the murder of Rose Beck Davis. On cross examination, he was asked about the presence of an assistant state's attorney when he made that confession and whether the assistant had told him what to say. In the course of this inquiry on cross-examination, the contents of that confession were disclosed, i.e., that he, Gecht and Spreitzer abducted the woman from a Chicago street, took her to a nearby gangway, beat, raped and stabbed her and violated her with an ax handle.

 The jury returned a guilty verdict on the charge of murdering Lori Borowski.

 At the sentencing hearing the prosecution proved the defendant's age and the fact of his conviction of the Davis murder and of the convictions for murder and kidnaping just rendered by the jury, all to establish death penalty eligibility. At the next stage, the prosecution proved more of the details of Rose Beck Davis' murder. She was found in a gangway. A ligature was fixed tightly on her neck and one of her arms, her sweater raised and her bra ripped off, slash wounds were on her breasts, her slacks and underpants were around her ankles, her face was blood covered and there was more blood in the vaginal area. The pathologist found blunt trauma injury to her face and her nose was badly broken. There were contusions in several places on her body and a four inch long piece of wood was found in her vagina, it had perforated the vagina and entered the abdominal cavity. Kokoraleis' confession to the crime was proved as well. He said that he and Spreitzer seized the woman who was walking on the street, forced her into the van where he put handcuffs on her while Spreitzer gagged her. At the gangway, Gecht hit her in the face while he pulled her slacks down. Gecht raped her and later struck her in the face with a hatchet and forced the handle of the hatchet into her vagina. Acting at Gecht's direction, Kokoraleis took a knife and "poked at her midsection three or four times." He dropped the knife and fell against a wall of a building. Eventually they went back to the van and drove off.

 The mitigation witnesses were a chaplain at the Cook County jail who knew Kokoraleis during the two years petitioner was in that jail. He found petitioner to be helpful and unthreatening and rehabilitable. A religious counselor at the DuPage County jail knew petitioner for a year and found him unthreatening and believed he was not a danger to society. The mother of someone who Kokoraleis dated said that her daughter had run away from home and petitioner had persuaded her to return home. She visited Kokoraleis at both jails. He had corresponded with her daughter while he was in jail. Kokoraleis testified that he had become involved in religion while he was in jail, he denied his guilt and said he was framed.

 The jury found no mitigating circumstances sufficient to preclude a sentence of death, and the trial judge imposed a death sentence.

 On direct appeal, petitioner challenged the admission of the other murders but the Illinois Supreme Court found them admissible both as modus operandi evidence and as supporting the reliability of the confession and its voluntariness; the Court also rejected various challenges to admission of the details of some of those murders. He also appealed the unobjected to evidence that Spreitzer, who did not testify, had implicated him. The Court found this point waived and found counsel was competent despite failing to object because the evidence was consistent with the defense theory that the police put words (perhaps Spreitzer's words) in his client's mouth. Indeed, defense counsel had brought this fact out as well so the confrontation claim was waived. The claim of improper cross examination questions to Kokoraleis, e.g., is officer x lying when he says something different from what you say?, left the Court unpersuaded. While the questions were generally impermissible, they were not necessarily inappropriate when Kokoraleis was indeed claiming that he was framed by lying police officers. In any event, defense counsel (now Judge) Eugene Wojcik had not objected, and this waiver was not incompetent where credibility was the issue. So too for arguments of the prosecutor who told the jury the issue was who was lying. The petitioner argued that the jury was improperly left with the impression that he had been convicted of four murders in Cook County, instead of four counts of murder involving only a single victim. In light of the undisputed statements of counsel and the record, the Court concluded the jury could have only thought that it was the murder of Rose Beck Davis of which Kokoraleis had been convicted. There was a challenge to an erroneous instruction on felony murder given without objection. The jury returned a disjunctive verdict finding beyond a reasonable doubt that either the statutory aggravating factor of multiple murder or the factor of felony murder existed. The instruction told the jury that if felony murder is to be applicable, the defendant himself must have inflicted the fatal injury or inflicted injuries contemporaneously with those causing death. (Emphasis added.) As it turned out, the underlined portion was not the applicable law at the time this murder occurred. To fail to object to such an instruction was incompetence of counsel, argued Kokoraleis. The Court found that no possible prejudice could have resulted from this act because the other aggravating circumstance, multiple murder, was undeniably true. It also thought there was evidence beyond a reasonable doubt that Kokoraleis inflicted fatal injury because Kokoraleis said he killed the woman and said that he, as well as Spreitzer, beat and stabbed her. The Court rejected the double enhancement claim under state law because it found that there were separate acts of physical harm (apart from fatal ones) which could establish that a kidnaping was aggravated. The Court did not find that Kokoraleis had the right to unsworn allocution to the jury or that the prosecutor gave an improper closing argument or that he was entitled to an instruction that told the jury the alternative to the death sentence was life in prison without parole or that the court should have told the jury the admission of many other murders was without corroboration. Finally the Court rejected, as it had in other cases, a constitutional challenge to the Illinois death penalty law. People v. Kokoraleis, 132 Ill. 2d 235, 547 N.E.2d 202, 138 Ill. Dec. 233 (1989).

 After denial of his post-conviction petition, Kokoraleis appealed again. The Court rejected his challenges to the competency of counsel on grounds of procedural default insofar as the incompetency claim might have been raised on appeal as might a claim of poor closing argument been raised. It rejected on the merits the claim of incompetency based on the failure to mount a psychiatrically based defense in mitigation. It found counsel's judgment and investigation to be within reasonable bounds. It refused to reconsider two grounds it had already rejected on appeal. It rejected other challenges to instructions of the sort decided against petitioners in Gacy v. Welborn, 994 F.2d 305 (7th Cir. 1993) and Free v. Peters, 12 F.3d 700 (7th Cir. 1993). Finally, it rejected a claim that this death sentence was barred by double jeopardy and collateral estoppel because of the failure to secure the death sentence in the earlier Rose Beck Davis murder trial. Here the Court said it was a matter that could have been raised on direct appeal and was not.

 The petition for habeas corpus narrows somewhat the range of claims that were made in state court.

 1. Telling the Jury that the Alternative to the Death Penalty is Life in Prison Without Parole.

 In People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146, 119 Ill. Dec. 287 (1988), the Court reiterated its longstanding rule that a prosecutor could not argue for the death penalty on the grounds that the murderer might be paroled. Then it found, for the first time, the standard instruction telling the jury that the alternative to death is imprisonment was inadequate. It then decided to abandon its prior holdings regarding the standard instruction and said:

Under the supervisory authority inherent in this court, as well as that conferred by ... the Illinois Constitution ... we direct that after the date of this opinion the trial courts of this State, when conducting a sentencing hearing involving a defendant convicted of multiple murders use [an instruction which states that where no death penalty is imposed, life imprisonment will be imposed and no one serving that sentence can be paroled or released except through executive clemency].

 This rule was applied to anyone whose case was tried after the date of the opinion and to no one whose case was tried before it except Robert Gacho. At least eight multiple murderers whose cases were on direct appeal, including Kokoraleis, were not entitled to invoke this rule. In Stewart v. Lane, 60 F.3d 296 (7th Cir. 1995), this was held not to be error. There is no reason why it should be. A State is perfectly free to apply its own judge made law in a fully prospective fashion. A prospective only construction of an existing statute may be constitutionally problematic ( Fetterly v. Paskett, 997 F.2d 1295, 1298-1301 (9th Cir. 1993)) but this should not be true of the rules made by judges, at least those designed to be prophylactic in nature. It is clear that the rule in Gacho was prophylactic. The Court did not hold that death penalty judgments imposed without the instruction were inherently flawed even when parole was argued to the jury, it simply set forth a rule which would save it and trial judges from having to make nice calculations in particular cases about how prejudicial an argument had been.

 Simmons v. South Carolina, 512 U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), did not go as far as Gacho did. It did not require an instruction in all cases, but it said that instructions about life without parole should be given when the prosecutor argues that parole is possible. Simmons is a new rule and not applicable to this case on habeas corpus. I am persuaded here by O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996).

 Yet if Simmons were to apply here it would not affect the result. It was not parole that was the subject of the prosecutor's argument; it was the opinion of a mitigation witness, a former college science professor and then religious counselor who stated, on cross examination, that Kokoraleis would not be a danger to society if he were free. The defense counsel had urged the jury to consider the rehabilitative potential of his client. His argument was that Kokoraleis had no prior criminal history, had been confined in jail since he was nineteen and had made the best of his situation becoming sincerely religious, helping people and impressing two religious counselors, one of whom had a doctorate in science. The prosecutor was entitled to use what the witness had said in an attempt to discredit the witness. The defense did not object. The prosecution also said Kokoraleis had no rehabilitative potential. It was never argued that Kokoraleis could or would be paroled, and the one thing that was clear to everyone in the courtroom was that Kokoraleis was either going to be executed or imprisoned. And by asking one of the counselors if it was okay just to let Kokoraleis "go right now," it was understood as an attack on the religious counselor witnesses, both of whom felt unthreatened by petitioner and endorsed his character. The prosecutor was entitled to argue that the religious counselors' opinions were too extreme to be given any credit. This is not the argument that troubled the Court in Simmons. Read as a whole the argument was not about future dangerousness or parole, it was about the defendant's character and the worth of the mitigation witness' opinions of that character.

 Finally, there is the related claim that the jury ought to have been told not only about the conviction in the Rose Beck Davis murder but also that the sentence there was life imprisonment without parole, because it would incline a juror less toward the death penalty since there was an assurance of life in prison. The argument is made without citation to authority and was not made on direct appeal. On post-conviction the Illinois Supreme Court found it to be procedurally ...

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