The opinion of the court was delivered by: James B. Zagel United States District Judge
MEMORANDUM OPINION AND ORDER
This federal court proceeding began with Petitioner, under sentence of death, seeking the writ of habeas corpus. He filed in August 1998.
After the petition was filed it did not follow the ordinary course. During the earliest stages, Petitioner's counsel, Richard Cunningham, was slain by his own mentally troubled son in March 2001. He was an able and distinguished lawyer who served many inmates under sentence of death. His demise significantly slowed the progress of the case.
This was so because resolution of some of the claims, it appeared to me, could not be resolved without an evidentiary hearing.*fn1 While Petitioner did not make a claim of actual innocence, the allegations of his petition suggested that questions of innocence might be raised. To that end, I contacted Professor Lawrence Marshall of Northwestern University Law School to suggest that justice might be best served if the law school clinics could provide legal assistance to Petitioner. Eventually Professor Thomas Geraghty appeared for and represented Petitioner at various stages of the proceedings.
After counsel for both parties examined the voluminous records in this case and discovery disputes were resolved, the challenges to the verdict and sentence requiring a hearing were boiled down to two. An evidentiary hearing was held with respect to the claims that the prosecution had knowingly used the false testimony of a key witness and that defense counsel was constitutionally ineffective at the sentencing phase of the trial.
While the lawyers were doing their work, the Governor of Illinois commuted every death sentence imposed in Illinois courts. The effect of this was a delay in most, if not all, post-conviction capital cases.
There were three major questions that had to be answered before a petitioner like Griffin would know how to proceed. First, was whether the commutation was within the Governor's power to grant to an inmate who had not requested a pardon.*fn2 The Supreme Court of Illinois held that such commutations were within the Governor's power. People ex rel. Madigan v. Snyder, 804 N.E.2d 546 (2004). Second, was whether a defendant whose conviction is reversed or vacated and remanded may be sentenced to death after a new trial. It was important for Petitioner to know the answer to this before deciding to press on with claims that might result in a new trial. The Supreme Court of Illinois held that there could be no death penalty after retrial. People v. Morris, 848 N.E.2d 1000 (2006). Third, does the commutation of the death sentence render moot a claim of ineffectiveness of counsel at sentencing, which was my initial view. The Court of Appeals held that the commutation does not moot that claim. Simpson v. Battaglia, 458 F.3d 585 (7th Cir. 2006). By mid-2006, the petitioner could safely decide to pursue the writ. In 2008, Petitioner formally moved for reconsideration of my decision that the counsel at sentencing claim was moot and I granted it.
Briefing was done in stages throughout this process and an evidentiary hearing was held as well. The matter became fully briefed in March of this year.
The basic facts of the case are set forth in the opinion of the Supreme Court of Illinois: The body of Carl Gibson was discovered near the 73rd Street exit ramp off of the Chicago Skyway on the morning of June 21, 1984. He had been shot four times at close range several hours earlier. A homicide investigation ensued.
At the time of the Gibson murder, the Chicago police department and the State's Attorney's office of Cook County were involved in "Operation Camelot" - an investigation of a major drug operation located on Chicago's south side. The investigation targeted the narcotics network of Charles Ashley, a drug dealer whose activities yielded an estimated $3 million annually. The victim was employed in Ashley's drug operation.
Also employed by Ashley's drug operation was Darryl Moore, who was arrested in August 1984 on drug and unlawful use of weapons charges. While in jail, Moore contacted Michael Pochordo, a detective with the Violent Crimes Division of the Chicago police department. Moore informed Pochordo that he had information concerning the Gibson murder and Pochordo set up a meeting with Moore and representatives of the State's Attorney's office. At a meeting on August 7, 1984, Moore supplied the State's Attorney's office with information concerning defendant's involvement in the murder. The information was sufficient for them to request permission for a consensual overhear device for use in Moore's contact with defendant. Application for the overhear device was approved by the circuit court of Cook County on August 8, 1984. On August 9, 1984, a tape-recording device was assembled at the State's Attorney's office, and Moore was instructed to call defendant. Moore recognized defendant's voice because he had known him through their "enforcer" work, and had spoken to him at least 100 times. During his taped conversation with Moore, defendant implicated himself in the murder of Carl Gibson.*fn3 Defendant was subsequently arrested and transported to the Violent Crimes Division in Area I. James Allen was also arrested in connection with the incident, and the men were placed in separate interview rooms. Assistant State's Attorney Neil Cohen was introduced to defendant and read defendant his Miranda warnings. Defendant inquired as to whether Cohen had talked to Allen and, upon hearing that Allen had made a statement, waived his Miranda rights and confessed to his participation in Gibson's murder. Defendant's confession revealed the following facts.
Ashley approached defendant and asked him if he would kill Gibson for $2,500. Ashley said that he wanted Gibson eliminated because he suspected that Gibson was secretly passing information to police. The offer was made and accepted in the presence of James Allen. Defendant and Allen then proceeded to the apartment of Darryl Moore, to obtain a gun. Moore was a fellow "enforcer" for Ashley and he and defendant had worked together in the past. Moore gave defendant a .38 caliber revolver and defendant and Allen left the apartment and dropped off members of defendant's family at home.
Defendant returned from the family home to the car accompanied by Carl Gibson. Allen drove the car, Gibson sat in the passenger seat and defendant sat in the back seat. Allen drove onto the Chicago Skyway at 89th Street, proceeding southbound. When he reached a toll plaza, he turned the car around and proceeded northbound. While driving northbound on the Skyway, defendant shot Gibson four times in the back of the head with a .38 caliber revolver. Allen then exited the Skyway at 73rd Street and stopped the car on the exit ramp. Defendant then pulled the body out of the car. The next day, defendant gave the murder weapon to Ashley. The rental car used in the slaying was disposed of by defendant and Allen. Defendant was paid by Ashley in cash and cocaine.
Subsequent to his confession, defendant was indicted with his co-defendants Charles Ashley and James Allen, for conspiracy to commit murder, solicitation to commit murder and murder. Prior to trial, the court found defendant fit to stand trial and denied defendant's motion to suppress evidence seized pursuant to a search warrant. The case was tried before a jury in June 1985. Moore testified as part of the State's evidence against defendant. Additionally, Assistant State's Attorney Cohen testified regarding the defendant's oral and written confessions. The taped telephone conversation between Moore and the defendant was also admitted into evidence. Following presentation of the State's evidence, the defense called its only witness, Detective Pochordo. Pochordo testified that he was initially contacted by Moore and that Moore had been an informant in 10 previous homicide cases, six of which had resulted in murder convictions to date. The jury found defendant guilty on all counts.
On November 17, 1989, defendant filed a post-conviction petition alleging that "substantial perjury" was employed to convict defendant and that the State's Attorney's office knew or should have known of the perjured evidence. Specifically, the petition alleged that Darryl Moore was paid $25,000 by the State's Attorney's office to lie at defendant's trial, and that Detective Pochordo's affidavit which supported the taped conversation was also a lie. Attached to the petition was a transcript of a video recording wherein Moore recanted his trial testimony and an excerpt of Moore's testimony at an unrelated trial. The petition requested an evidentiary hearing.
The video recording was taken on August 20, 1986, by defense attorney, Sam Adam.
On the recording, Moore stated that his testimony at the defendant's trial was a lie.
He further stated that his testimony was based on information he had received from Detective Pochordo and members of the State's Attorney's office. In particular, Moore had received a copy of James Allen's 16-page statement made subsequent to his arrest for the murder. In return for his testimony, Moore stated that he was housed in a Holidome hotel with his fiancee, that his living expenses were paid for, and that he was provided with money to purchase a catering truck from which he could sell hot food. Moore testified that the money for his "lavish lifestyle" came from the State's Attorney's office.
On August 10, 1987, Moore was a key witness in another Cook County homicide case, People v. Freeman, No. 86-CR-2090. During his testimony, Moore stated that he had lied at defendant's trial, and had been paid to do so by Detective Pochordo and members of the State's Attorney's office.
People v. Griffin, 592 N.E. 2d 930, 931-932 (1992) (direct appeal and appeal of denial of the first post-conviction petition).
I begin with the two issues that were the subject of the evidentiary hearing.
1. Ineffective Assistance of Counsel
A. Decisions Within the Reasonable Range of Competence
Petitioner was represented at trial and sentencing by George Howard, a well-known defender in criminal cases.*fn4 Howard anticipated that both guilt and sentence would be tried before the jury, but he had not prepared for the penalty phase. He thought that, by Petitioner's waiving the jury, he would be given some time to prepare. This was one of the reasons he recommended to Petitioner that he should waive the jury at the penalty phase. His other reason, which, unlike Petitioner's counsel, I find particularly credible, is that he believed that Judge Earl Strayhorn, a truly distinguished judge, would not readily impose the death penalty.*fn5
During the death penalty eligibility phase, defense counsel did not challenge the evidence. After Judge Strayhorn found Petitioner eligible for the death penalty, he inquired whether defense counsel was ready to proceed on aggravation and mitigation. Mr. Howard said, "Not really, Judge because knowing very well that based upon the conviction and . . . the age of the defendant, that there wouldn't be any problem with satisfying the law relative to his eligibility, I would think, your Honor, that . . . as a result . . . of the jury's verdict and so forth that I . . . think we would like to do, at this point, is to set the matter down for some post-trial motions and hear those matters before we move into any other further evidence concerning aggravation of any kind."
Judge Strayhorn responded, "No, that's not my understanding of what the statute requires Mr. Howard." Defense counsel said, "All right." The court denied the "motion for continuance for filing of post-trial motions."
The case in aggravation was quite simple--all the evidence at trial was re-offered along with certified copies of his six prior convictions.*fn6 The case in mitigation was, first, the testimony of Petitioner. Second was the testimony of someone who knew Petitioner, a woman who was according to defense counsel, "by chance . . . in the court room . . . in desperation I called her."
Petitioner testified that he had long been addicted to heroin and cocaine which he had unsuccessfully attempted to escape while working for an organization that aided ex-convicts. On cross-examination Petitioner admitted selling marijuana while working in order to make ends meet. Petitioner also testified, without much detail, that he had been committed to a mental institution as a teenager because he attempted suicide and suffered from depression. Petitioner had also escaped from the institution on two occasions. On cross-examination Petitioner denied that he had ever killed anyone despite the fact that the jury had convicted him.*fn7
The second witness, Ida Powe, testified that Petitioner did not have a reputation for violence and was not capable of doing what he was convicted of doing. Defense counsel had not spoken to her until minutes before she testified. He used this fact in closing argument to show she was not a coached or manipulated witness.
Defense counsel's argument did touch upon Petitioner's difficult life, but its main thrust was to raise a residual doubt argument as a reason for not imposing the death penalty. It also urged that Petitioner would be better able to assist his appellate lawyers with the case's unsolved mysteries if he is not "operating on the cloud of death."
The essential criticism of defense counsel is that he offered no records documenting Petitioner's troubled past, no expert testimony, and no theme in his closing argument. The choice made by defense counsel allowed the prosecutors to cite the ...