Incompetence of Counsel on Defense at Trial
Conflict of Interest
It is not clear whether Jerry Mahaffey persists in his claim that Steven Decker had a conflict of interest because his law partner represented Reginald Mahaffey. This lack of clarity is due to the absence of the claim in Jerry Mahaffey's papers filed in response to the decision in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), rev., 138 L. Ed. 2d 481, 117 S. Ct. 2059 (Jun. 23, 1997).
The claim, I find, is without merit. Representation of one defendant by a law partner of a co-defendant is not a per se violation of the Constitution. Burger v. Kemp, 483 U.S. 776, 97 L. Ed. 2d 638, 107 S. Ct. 3114 (1987). Actual conflict must be shown. Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980). The conflict said to exist here is that Steven Decker should have argued that the crime was committed by Cedric Mahaffey and Reginald Mahaffey. Decker explained his refusal to do so with a question "If Cedric was a purported perpetrator of the offense, why would he name one of his co-conspirators?" The question serves as an adequate answer, indeed a persuasive answer, as to why Jerry Mahaffey's trial counsel would not want to suggest the guilt of Reginald. It is not credible that Cedric would name one of his co-conspirators and lie about the other, the personal risk to Cedric is too great. Otherwise, it is clear that Decker did suggest to the jury that Cedric Mahaffey was a perpetrator of the crime. The brothers Jerry and Reginald offered consistent defenses -- "I did not do it and my confession was coerced." There was no conflict and each gave the other support on the coerced confession claim.
Failure to Obtain and Use Evidence at the Motion to Suppress
There are two parts to this claim.
First, there is a recurrence of the theme that Steven Decker ought to have had Jerry Mahaffey examined by a clinical psychologist. In this aspect of the case, the argument has more force than it did in the mitigation context because the psychologist's opinion can be tied to the facts of the case. Dr. Harry Gunn does say it was highly probable that Jerry Mahaffey did not understand his Miranda rights. Steven Decker's written answers on this subject tell us, if fairly read, why Decker did not have a psychological examination conducted. He thought the evidence would be questionable "given [Mahaffey's] written statements and my other knowledge as to his abilities to understand and communicate." This is why Decker now says he might have presented psychological evidence like that of Dr. Gunn only after all the other evidence was in. It is also the reason why he would not seek to obtain such evidence since, based on his impression of Jerry Mahaffey, including his ability to read, there was no reason for competent counsel in Decker's position to suppose a report like Dr. Gunn's would be forthcoming.
Indeed, Steven Decker today says only that it is "possible" he would introduce Dr. Gunn's evidence even if he had it. As an experienced defense counsel, he may well have been aware that the prosecution could also present expert evidence that even more severely retarded persons, particularly those with prior criminal experiences, would understand Miranda. See People v. Henderson, 83 Ill. App. 3d 854, 863-64, 404 N.E.2d 392, 400, 39 Ill. Dec. 8 (1st Dist. 1980). There was the further risk that in asking the trial court for appointment of a psychologist to determine competency to waive Miranda rights, defense counsel might have opened the door to the prosecution to request or the Court to order on its own a psychological examination by the court psychiatrist to determine competency to stand trial under Ill. Rev. Stat. 1983, Ch. 38, Sec. 104-11 and 103-13 (now 725 ILCS 5/104-11 and 5/104-13). Damaging statements made by defendants in such interviews are not admissible absent the raising of a mental condition defense but even inadmissible statements give an advance look to the prosecution of what the defense might have (or, more importantly, not have) to offer. It is true that Steven Decker does not expressly state this, but a practitioner experienced in criminal defense in Cook County would, I think, routinely give consideration to these matters in every case. It is apparent from the hearing that defense counsel did adopt a strategy of disclosing as little as possible to the court and the prosecutor. And it does not matter if he did not, the impression his client gave him is grounds enough to explain why no psychological examination was called for here.
There is another more important reason why the psychologist does not matter in Jerry Mahaffey's case, and this reason applies also to the second part of this argument about incompetence which is based on the affidavit of Charles Patterson, a neighbor of Jerry's who heard screaming from the Mahaffey apartment on the night Jerry was arrested. He also heard various thuds and similar sounds which lead him to conclude that someone was being beaten. This would corroborate to some extent Jerry's claims of coercion. Of this potential testimony Decker was unaware, but he does say he is uncertain whether he would have called Patterson as a witness because "he may not have been able to support Jerry's position that he . . . Physically showed signs of being abused at the time of his arrest." This latter concern is justified because Patterson never saw Mahaffey that night.
Patterson's evidence is critical, says Mahaffey's present counsel, because the "question of whether Mahaffey was brutalized by the police therefore came down to a credibility determination between two groups of biased witnesses: the testimony of Mr. Mahaffey and his wife against the testimony of the police officers who allegedly brutalized Mr. Mahaffey" so "a disinterested witness would have been extremely significant."
This is not an accurate statement of what occurred at trial.
The credibility determination came down to a choice between Jerry Mahaffey and his wife on one side and (1) the police officers, (2) the Assistant State's Attorneys, (3) an Emergency Medical Technician, and (4) a photograph of Jerry Mahaffey taken around the time of his interrogation.
The interrogation photograph which I now have on my desk shows Jerry Mahaffey holding a soft drink can in one hand and a cigarette in the other. There is no sign of the substantial injury he claimed was inflicted by a blow to his nose. The EMT at the Cook County jail recorded no evidence of trauma or complaints of brutality. Jerry Mahaffey testified he made a complaint of brutality to an Assistant State's Attorney, but the prosecutor credibly denied this. Another Assistant State's Attorney heard no complaint of brutality. A denial of any claim of mistreatment appears in the petitioner's written statement, and neither prosecutor saw evidence of prior mistreatment. They both thought his statement was voluntary and that he understood his rights. One prosecutor testified that Jerry Mahaffey read his confession and corrected the spelling of one word.
This is to be weighed against at least one inherently incredible aspect of Jerry Mahaffey's story. Several police officers testified that he had made incriminating admissions in his home and in the car on the way to the station and these same officers denied brutality. In his testimony, Jerry Mahaffey, pursuing an apparent policy of denying everything, contradicted both police assertions; that he incriminated himself and that the police did not abuse him. This left him in the position of arguing that in the face of atrocious physical violence he steadfastly refused to confess to officers who were torturing him. Only after the torture stopped and he was in the presence of two prosecutors and a court reporter, did he admit to the crime. Both of these two assertions can logically be true, but it is difficult to believe both. And the trier of fact did not believe at least one of them, the claim of coercion.
Under the law, the decision on questions of voluntariness and Miranda compliance are decided by the preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972); Colorado v. Connelly, 479 U.S. 157, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986). The trial judge found by "the great weight of evidence" there was no brutality and that overwhelming evidence refuted claims of brutality and claims of Miranda violations. On this record, the decision is clearly correct and neither testimony of Patterson nor Dr. Gunn had any reasonable probability of altering the result. Steven Decker's choices were limited by the state of the evidence and the court and not by lawyerly incompetence.
There is a minor argument that Decker should have introduced evidence of a pattern and practice of police brutality in Area 2 from whence came the police officers who arrested Mahaffey. What present counsel produced here is not admissible. It is not tied to any of the officers who participated in a major way in this case. Habits and practices may be admissible, but not if they are not those of someone whose conduct is not at issue in the case. And this evidence, too, would have failed to carry the day because of the particular facts in this case.
The Closing Argument at the Sentencing Hearing
In Simmons v. South Carolina, 512 U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), the Court held that a capital defendant is entitled to have the jury told that the alternative to the death sentence is life imprisonment without parole where that is what state law provides and the prosecution has raised the question of future dangerousness. It is apparent from reading Simmons that the issue before that jury was whether the jury ought to risk the threat posed by the possibility of paroling a dangerous man.
Jerry Mahaffey argues that the rule in Simmons was violated in his case. His argument fails because Simmons is not retroactive, therefore does not apply to his case, and, even if it were, it would not require vacating the death sentence. See Lambrix v. Singletary, 137 L. Ed. 2d 771, 117 S. Ct. 1517, 1525 (1997) (holding that a case decided after a habeas petitioner's conviction and death sentence became final was a new rule under Teague v. Lane and therefore did not apply retroactively).
In Spreitzer v. Peters, 118 F.3d 1211, 1997 U.S. App. LEXIS 21172, 1997 WL 273568, *12 (7th Cir. 1997), the Seventh Circuit affirmed its earlier ruling in Stewart v. Lane, 60 F.3d 296, 299-302 (7th Cir. 1995), that Simmons was not to be applied retroactively. A closely divided court in another circuit reached the same conclusion. O'Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996) (en banc). To the extent that this issue was raised on a federal constitutional basis in state court, it was rejected on retroactivity grounds on the first appeal. People v. Mahaffey, 128 Ill. 2d 388, 430-31, 539 N.E.2d 1172, 1192-93, 132 Ill. Dec. 366. I am unpersuaded that it was ever raised on direct appeal as a federal constitutional claim that was adequately articulated. Certainly the Supreme Court of Illinois thought the only applicable precedent was its state law decision in People v. Gacho, 122 Ill. 2d 221, 522 N.E.2d 1146, 119 Ill. Dec. 287 (1988).
In any event, Simmons, if applied here, would not affect the outcome. The prosecution's arguments on sentence consume just short of sixteen pages of transcript.
In controversy are these lines,
When they tell you that they will spend the rest of their lives in prison, there is no guarantee. [objection overruled]
. . .
There is not guarantee, ladies and gentlemen, not only because of what the law may say but because of what you heard from that witness stand. You know who you are dealing with."