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September 4, 1997


The opinion of the court was delivered by: ZAGEL

 Jerry Mahaffey and his brother, Reginald invaded the Pueschel home, murdered a husband and a wife and tried hard to murder their eleven-year-old son. This was found by a jury which also decided that he deserved to die for what he had done, and he was sentenced to death. After unsuccessful challenges to the sentence in state court, he seeks to overturn the judgment in federal court. With neither fact nor law to justify his federal claims, he cannot prevail. I deny his petition for a writ of habeas corpus and allow the law to proceed on its stern course.

 The crimes were discovered by the father of Jo Ellen Pueschel who found her dead body and that of her husband, Dean Pueschel in their home. He first found his severely beaten grandson, Richard wandering near the alley by the home. The eleven-year-old Richard swore that in the night he awoke to find himself in a headlock, being told by two separate voices to "shut up and be cool." He could not remember whether he fell asleep or was knocked out, but he did later wake and, in a daze, walked into his kitchen, where he was told to stay on the floor next to his mother. He did so, and saw his mother being struck.

 Missing from the home were a video recorder, videotapes, an Atari game console, seven game cartridges, several items of the Pueschel's jewelry, along with a .357 magnum revolver and a shot gun. Pueschel's red Camaro was missing as well.

 The Pueschel's Camaro was recovered on August 30, 1983 in a parking lot at 2245 West Lake Street in the Henry Horner projects.

 Both defendants confessed to an Assistant State's Attorney, and both confessions were read in full to the jury. Reginald's confession was ultimately admissible against Jerry Mahaffey because Reginald testified on his own behalf.

 Jerry Mahaffey told the prosecutor that he and Reginald had discussed committing a burglary on the north side and drove to a clothing store at Howard Street and Western Avenue. Jerry saw a "paddy wagon" in an alley, so Reginald drove around the block and parked in a lot. After deciding not to burglarize the store, they were unable to restart their van. They walked away from it and saw an open window leading into a bathroom. They climbed through the window into the bathroom. They went into the "grown-ups' room" and the "boy's room" and then to the kitchen where Reginald picked up a knife. Jerry wiped everything Reginald touched "for not finding fingerprints." They went to the boy's room, and Jerry tried to strangle him with a towel, then they put a pillow over his head, and Reginald strangled him four to five times. The boy kept struggling, and Jerry hit him on the head with a baseball bat he found in the room.

 The brothers Mahaffey each took a bat from the boy's room, went to the other room and proceeded to hit the man on the head with the bats. Reginald took the woman to the living room where he raped her and forced fellatio. Jerry went into the room where the woman was present but returned to the man's room where the man was pulling a pistol out. Jerry hit the man with the baseball bat and then returned to the living room. Reginald asked the woman where there were other guns, and she told them. They went to get them, two could not be removed from a locked rack, but Reginald did get a shotgun. The man started moving again, so Reginald stabbed him four or five times in the chest and the side.

 Reginald asked the woman for the keys to the car and took her with him to the car so she could disarm the alarm. He took her back to the house, and Jerry loaded their stolen goods in the car. During his statement, Jerry Mahaffey identified as the stolen items those things recovered from his and his brother's residences.

 After loading up the car, Jerry went back to the house and told the woman to lie down. The boy was now with her saying, "Ma, Ma, Ma, Ma." Reginald struck her on the head several times with the pistol which blows killed her.

 The brothers then drove the car to Reginald's house where they left their stolen goods. After this, they abandoned the car in the Henry Homer projects. *fn1"

 No prints of either of the brothers were found at the crime scene. There was physical evidence of intercourse, but no sign of vaginal trauma. The sperm was untypable.

 The brothers Mahaffey were tried jointly. At trial, Jerry Mahaffey defended on grounds of coercion of the confession and the reasonable doubt arising from the absence of physical evidence and any identification other than that of the young, injured boy.

 Reginald Mahaffey took the witness stand, denied his guilt, denied that any stolen property had been removed from his home, but then stated that he had purchased the stolen property from a man who visited his apartment shortly before the arrest. He also offered the theory that the real culprit was Cedric Mahaffey.

 The police did not arrest Cedric Mahaffey despite his knowledge of unpublished details of the crimes and the fact that he was a light-complected black. Cedric Mahaffey's prints were never compared to the ones found at the crime scene. *fn2"

 The jury convicted both men of all charges except that it acquitted Reginald of deviate sexual assault. *fn3" At the sentencing hearing, members of Jerry Mahaffey's family testified, and so did Mahaffey who denied committing the crime. His counsel argued that prison was so bad that life in prison was enough punishment, that no one should be executed and that the crime was not planned in advance. The jury thought the death sentence was called for under Illinois law, and the trial judge decided to sentence Jerry Mahaffey to death.

 This habeas corpus proceeding presents an attack on the conviction and on the death penalty. The principal theme is a customary one of incompetency of counsel but some trial errors are raised as well and these involve some matters to which defense counsel did object at trial.

 The defendant's arguments here are ably drafted, but they fail primarily because they are based on a misreading of the law, a misreading of trial counsel's position and the defense of it he was first asked to make several years after the trial and a misreading of the trial record. The principal arguments depend on a narrow focus on specific details combined with a relentless ignoring of the factual context of the case as a whole.

 The recitation of the prior legal challenges to conviction and sentence may be tedious but what has gone before counts in habeas corpus law.

 In the state post-conviction proceeding, defendant raised a constitutional claim based on the failure of the Illinois Supreme Court to apply its decision in People v. Gacho 122 Ill. 2d 221, 522 N.E.2d 1146, 119 Ill. Dec. 287 to Mahaffey's case, another based on the failure to preserve the right of individualized sentencing, an argument that the allocation of peremptory challenges was wrong and an argument based on the issues resolved now in Free v. Peters, 12 F.3d 700 (7th Cir. 1993). There was a lengthy attack on the competency of counsel. This argument was that counsel had a conflict of interest because it was his partner who defended Reginald Mahaffey, and that counsel failed to interview witnesses, investigate mental disability shortcomings for mitigation and evidence suppression purposes, or give a coherent closing argument. He was also said to have committed errors which cumulatively made his defense incompetent. Apparently it was, around this time, that Mahaffey's post-conviction counsel tried to discuss the case with trial counsel. A letter dated Dec. 5, 1991 asked trial counsel to submit to an interview regarding his thought processes at the 1985 trial. He apparently refused to do so, and the state court refused to order a deposition.

 This habeas petition rehearses the post-conviction arguments. I address each of them in turn, but first I will state the context in which Steven Decker, the defense counsel, had to make his decisions.

 The crime itself was both heinous and heartless. No one here disputes this now and the Mahaffeys did not dispute it then.

 What the jury heard here, what any jury would have heard, was the tale of a grandfather who, along with his wife, became concerned at the failure of his grandson, Richard to arrive so they could babysit for him. After phoning the boy's home and the parents' workplaces to no avail, he drove to the Pueschel house and found his eleven year-old grandson wandering, blood covered and beaten, outside the family home. Richard told him that "mom and dad are dead". The grandfather went in and saw the horrific scene for himself as did the jury by means of photography. While the grandfather and Richard waited for the ambulance, all the traumatized young boy wanted at that moment of his life was to have his grandfather open a soft drink for him. The grandfather was unable to do so that morning. This was a very powerful image of victimization, it is striking even in the dry text of transcript.

 The killers entered the house the night before and slew the father by battering him with a baseball bat and stabbing him many times. The mother was battered to death too. The boy was severely battered and stabbed. The killers stole jewelry, guns, a video recorder, a video game, video cassettes, and game cartridges.

 The defendant, Jerry Mahaffey and his brother were both identified by Richard as the killers, and Jerry Mahaffey and his brother both confessed to being the killers, and in Jerry Mahaffey's case the confession of his brother was admissible against him.

 By the time the jury set out to decide the penalty, it had found that Jerry and Reginald Mahaffey were the killers and it knew all of the details of the crime. The brothers entered the Pueschel home because their original intent to burglarize a store could not be carried out. Jerry Mahaffey systematically erased fingerprints, tried to strangle Richard with a towel and hit him in the head with a baseball bat. Jerry Mahaffey hit the father several times with a baseball bat. He also stood by (at the very least) while his brother criminally sexually assaulted the mother and stabbed the father and then battered the mother to death with a handgun. He helped steal their property and drove off in their car which he wanted to burn. He kept some of the stolen goods in his apartment. To devise a defense strategy counsel had to operate within the constraints presented by the facts found against his client and the constraints presented by his client's response to the charges.

 Mahaffey begins his efforts here with an attack on the competency of counsel at sentencing, an attack unsuccessfully made in the Supreme Court of Illinois.

 The standards by which counsel's competency is judged are well known since Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Their application to capital sentencing cases requires defense counsel to "make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant's fate to the jury and to focus the attention of the jury on any mitigating factors." Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989). What this means in practice is not very well known, although in the following cases counsel was deemed ineffective. In Kubat, no evidence in mitigation was presented and the closing argument was neither logical nor coherent and presented the jury with a coda that served to aggravate rather than mitigate. In Hall v. Washington, 106 F.3d 742 (7th Cir. 1997), defense counsel did virtually nothing to investigate mitigation and offered a diatribe against the death penalty as his sole argument for mercy. In Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991), defense counsel had knowledge of Brewer's psychiatric problems and refused to use it despite the absence of any other mitigating theory and the fact that it might have supported his client's version that he played a lesser role in the offense. See also Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996) (no effort by counsel).

 In Stewart v. Gramley, 74 F.3d 132 (7th Cir. 1996), counsel was competent who called witnesses to establish Stewart's difficult early life but failed to introduce other evidence of severe problems in Stewart's upbringing -- this was so because counsel's conversations with Stewart turned up nothing remarkable in his personal history.

 The summary of the rule in Hall v. Washington is simple. A decision not to present evidence "can rationally be made ... only after some inquiry or investigation by defense counsel.... This does not mean that only a scorch-the-earth strategy will suffice ... But it does mean that the attorney must look into readily available sources of evidence. Where it is apparent from evidence concerning the crime itself, from conversation with the defendant, or from other readily available sources of information, that the defendant has some mental or other condition that would likely qualify as a mitigating factor, the failure to investigate will be ineffective assistance." 106 F.3d at 749-50.

 In this case, it is the mental condition and the psychological makeup of the defendant which is at the heart of this aspect of the habeas corpus challenge.

 What Steven Decker did not do is have Jerry Mahaffey examined by a psychiatrist, nor did he review Mahaffey's grammar school records or speak to more of Mahaffey's family members. If he had done so, it is now said, he would have learned that Mahaffey is mentally retarded, has a psychological disorder, witnessed violence at an early age, and on occasions helped his youngest sister and the elderly.

 What Steven Decker did is call three of Jerry Mahaffey's relatives -- his mother, wife and sister -- who testified about his upbringing in a bad neighborhood and his redeeming qualities as a family member, his loving relationship with his children and his nieces and nephews. Jerry Mahaffey testified to the terrible, punitive nature of life in prison. He argued reasonably well that which he could argue -- the crime was fortuitous, not planned in advance, like a contract killing, that the jury should not kill anyone for all death is terrible, and that life in prison is so bad that it is punishment enough.

 Why did Decker act as he did? We have his written answers to Mahaffey's questions. Decker's responses are designated as preliminary and there are some things which escape his recall *fn5" but his basic response, fairly read, is that he spoke to members of his client's family and to his client. He was unaware of the fact that a clinical psychologist would have found Mahaffey had a full scale I.Q. of 67 but even so would have waited before introducing such evidence (at the suppression hearing) because of his own knowledge of his client's ability to understand and communicate which I read to mean that Steven Decker did not think his client was retarded. *fn6" He did not see any need to have a psychologist examine his client (prior to the motion to suppress). While Jerry Mahaffey adopted the ploy of trying to portray some inability to read, counsel believed Jerry could read, and the introduction of evidence that he could not do so would have been fraud on the court. He had conversations with family members and anyone who indicated to him that they might have something useful to say. He interviewed the mitigation witnesses before putting them on the stand though this is disputed in part. He consulted with his client to discover if there were other witnesses that might be helpful on sentencing. He took some affirmative steps to explore past mental history, but does not recall what they were, and he believes that one reason he had no psychological examination performed before sentencing was his concern that his client would have confessed to the psychologist. *fn7"

 Steven Decker explicitly describes in the record before me an adequate investigation that he made into Mahaffey's sentence. It is implicit that based on his dealings with his client and his client's family that he saw no basis to pursue a psychological defense. *fn8"

 There is no need to conduct an evidentiary hearing on counsel's reasons for his actions. He has explained them in written deposition, and it is clear that he would not be able to recall all of his reasons. His primary reasons, these he does recall and state, and nearly all of these are clearly inferable from the record. I did hold a hearing on May 22, 1997 with respect to certain concrete actions that Decker alleges he took and others deny, and I find as follows.

 At the May 1997 hearing Myrtis Mahaffey testified that she had not been prepared for her appearance as a witness at Jerry Mahaffey's sentencing hearing. She also denied having much conversation at all with Steven Decker. Yet she did concede that she spoke to him once or twice a week during the time that he represented Jerry. And she admitted having called Steven Decker for legal advice within two months previous ...

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