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Mack v. McCann

June 18, 2008


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 2999-Ruben Castillo, Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.


Before FLAUM, RIPPLE and ROVNER, Circuit Judges.

On the day after Thanksgiving in 1979, Larry Mack murdered Joseph Kolar, a bank security guard, in the course of robbing a Chicago bank. Initially sentenced to death for this senseless killing, Mack has waged a sometimes successful twenty-nine-year legal battle to lessen the severity of his punishment. The Illinois courts vacated the death sentence and eventually sentenced Mack to natural life in prison. At the time of his original trial, in an effort to avoid the death penalty, Mack offered to plead guilty in exchange for a sentence of natural life, an offer that was rejected by the State's Attorney. Mack now challenges his life sentence on constitutional grounds, appealing the district court's denial of his habeas corpus petition. We affirm.


We assume the state court's factual determinations are correct unless the defendant rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Julian v. Bartley, 495 F.3d 487, 492 (7th Cir. 2007). Our rendition of the facts therefore comes from the Illinois supreme court's first decision in this case. People v. Mack, 473 N.E.2d 880 (Ill. 1984), vacated, 479 U.S. 1087 (1987) (hereafter, we will refer to the Illinois supreme court's first decision as "Mack I"). On November 23, 1979, Mack and two accomplices robbed the West Pullman United Savings Bank in Chicago. When Mack first entered the bank, Mr. Kolar, a uniformed security guard, was speaking with John McGinty, a loan officer employed by the bank. Mack approached Mr. Kolar, pulled a gun from under his coat and placed it inches from the bank guard's collar. Mr. Kolar reacted by raising his arm to push the gun away. Mack fired the gun, piercing Mr. Kolar's right arm. Mack then put his hand on the back of Mr. Kolar's neck, placed the gun against his back, and walked him over to an area near the windows. Mack forced Mr. Kolar to the floor, straddled him with his legs and fired a second, fatal shot into his chest. Mack then took Mr. Kolar's gun from its holster. As Mack straddled Mr. Kolar, his two accomplices entered the bank and jumped over a partition leading to the tellers' stations. As his accomplices collected money, Mack patrolled the bank, carrying Mr. Kolar's gun as well as his own. Three Chicago police officers who happened to be passing the bank saw Mack and his cohorts making a hasty exit. After following the three robbers a short distance, the police officers stopped the getaway car and ordered Mack and the others out. The officers arrested all three, and recovered from the car the bags of money taken from the bank, Mack's gun and Mr. Kolar's gun. Mack I, 473 N.E.2d at 884-85.

Mack's accomplices pled guilty to charges arising from the bank robbery and were sentenced to prison terms. Mack's multiple attempts to enter into a plea agreement failed when the State's Attorney refused to accept Mack's final offer to plead guilty in exchange for a sentence of natural life. Mack waived a jury for the guilt phase of the trial, retaining his right to request a jury for sentencing. The trial court found Mack guilty of three counts of murder and two counts of armed robbery. Specifically, Mack was convicted of murder on three different theories:

(1) that he intentionally and knowingly shot and killed Mr. Kolar; (2) that he shot and killed Mr. Kolar with a gun knowing that shooting a person with a gun created a strong probability of death or great bodily harm to that person; and (3) that he shot and killed Mr. Kolar while committing a forcible felony, namely armed robbery. As for the two counts of robbery, Mack was charged with robbing Mr. Kolar and with robbing the loan officer by taking United States currency from the person and presence of these two men.

The case proceeded to the two-part penalty phase to determine whether Mack would be sentenced to death. A jury was impaneled for this purpose. In the first phase, the jury determined that Mack was eligible for a sentence of death because he was at least eighteen years of age at the time of the murder, and he personally murdered an individual during the course of a felony, satisfying one of the statutory aggravating factors that must be found before the death penalty may be imposed. During the second phase of the penalty hearing, the jury heard evidence relevant to aggravating and mitigating sentencing factors. The jury unanimously found that there were no mitigating factors sufficient to preclude a sentence of death. The court sentenced Mack to death, and entered concurrent terms of twenty-five years for each armed robbery conviction. Mack I, 473 N.E.2d at 884.

In Illinois, capital cases are automatically appealed directly to the supreme court. In his direct appeal, Mack raised issues regarding only the sentencing hearing and the sentence. He did not challenge any aspects of the guilt phase of the trial. Mack argued that the prosecutor had unlawfully relied on the wishes of Mr. Kolar's family in refusing to accept his offer to plead guilty in exchange for a sentence of natural life and to instead seek the death penalty. The supreme court ruled that the prosecutor was not barred from considering the wishes of the victim's family in deciding whether to accept an offered plea bargain in a capital case. Mack also argued that certain members of the prosecution team had already accepted his offered plea before a supervising prosecutor decided to defer to the wishes of the family. The trial court found that the State's Attorney's office had never accepted Mack's plea offer, and the supreme court affirmed that finding. Mack I, 473 N.E.2d at 887-89.

The Illinois supreme court next rejected Mack's argument that he was entitled to a new sentencing hearing because three jurors were erroneously excused for cause under Witherspoon v. Illinois, 391 U.S. 510 (1968). The supreme court found that the trial court conducted an appropriate voir dire and that the disputed jurors were correctly excused because they were unwilling to impose the death penalty under any circumstances. Mack I, 473 N.E.2d at 889-90. The court also rejected Mack's argument that the prosecutor had impermissibly used race as a factor in exercising its peremptory challenges. The United States Supreme Court had not yet decided Batson v. Kentucky, 476 U.S. 79 (1986), at the time the Mack I court ruled that such a challenge could not stand unless the defendant was able to demonstrate systemic and purposeful exclusion of African Americans from the jury. Mack I, 473 N.E.2d at 890. Mack could not make this showing, and the court rejected this challenge and also disallowed a claim that the jury was not adequately screened for racial bias. Mack I, 473 N.E.2d at 890-92. Nor did the court accept Mack's claim that the prosecutor made improper comments about the victim's family and the possibility that Mack might be given an early release if not subjected to the death penalty (a complaint we find somewhat ironic in light of the instant appeal). 473 N.E.2d at 892. Mack also claimed ineffective assistance of counsel at the sentencing phase, arguing that his lawyer did not adequately develop his theory that the shooting was accidental because the gun misfired twice during the robbery. The court found that counsel attempted to make this argument and presented some evidence that the first shot was accidental, but that, in light of the loan officer's testimony about the second shot, it was "impossible to accept" a claim that the second, fatal shot was fired accidentally. 473 N.E.2d at 893-94.

The court rejected several other more minor arguments, and then addressed Mack's claims that he should have been convicted of only one count of armed robbery and one count of murder. The court granted Mack relief on both of these claims. Under Illinois law, when money is taken from one victim in the presence of several persons against whom the threatened force was directed, there is only one robbery. Mack I, 473 N.E.2d at 897. The court therefore affirmed the conviction for the robbery of the bank's loan officer and vacated the conviction for the robbery of Mr. Kolar. As for the three murder convictions, the*fn1 court found that only one count of murder could stand. The three convictions were for the intentional and knowing shooting and killing of Mr. Kolar, the shooting and killing of Mr. Kolar with knowledge that the shooting created a strong probability of death or great bodily harm to Mr. Kolar, and the shooting and killing of Mr. Kolar while committing the forcible felony of armed robbery. The court found that, although "[t]here was evidence to support a conviction of all three charges," there could be only one conviction because only one person was killed. In Illinois, the rule for multiple convictions arising out of a single act required that the sentence be imposed on the most serious offense. Mack I, 473 N.E.2d at 898. All three of the murder convictions carried the possibility of a death sentence, but the court considered the knowing and intentional shooting and killing of Mr. Kolar to be the most serious crime of the three charged because it involved a more culpable mental state than the other two. The court therefore affirmed the conviction for the knowing and intentional shooting and killing of Mr. Kolar and vacated the other two murder convictions. Mack I, 473 N.E.2d at 898.

Following the Illinois supreme court's decision, the United State Supreme Court ruled in Batson that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." Batson, 476 U.S. at 96. Because the rule established in Batson was held to apply to all cases pending on direct appeal, see Griffith v. Kentucky, 479 U.S. 314 (1987), the Supreme Court vacated and remanded the judgment in Mack's case for further consideration of the issue. The Illinois supreme court remanded the matter to the trial court for a hearing on the Batson issue. That court found that the explanations offered by the prosecution for the peremptory challenges were credible, race neutral and sufficient to with-stand scrutiny under Batson. That decision was automatically appealed to the Illinois supreme court, which af-firmed and reinstated Mack's death sentence. People v. Mack, 538 N.E.2d 1107 (Ill. 1989) (hereafter "Mack II").

Mack next filed a petition for post-conviction relief in the circuit court of Cook County, arguing that the jury returned a legally insufficient verdict in the first phase of his death penalty hearing. The circuit court agreed, vacated Mack's death sentence and remanded the matter for a new sentencing hearing. This time the State appealed, and the Illinois supreme court affirmed. See People v. Mack, 658 N.E.2d 437 (Ill. 1995) (hereafter "Mack III"). The court noted that at the first stage of the death penalty hearing, the State sought to establish Mack's eligibility for the death penalty on the basis of the statutory factor set forth in section 9-1(b)(6) of the Illinois Criminal Code of 1961. The relevant statute provided:

(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:

6. the murdered individual was killed in the course of another felony if:

(a) the murdered individual was actually killed by the defendant and not by another party to the crime or simply as ...

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