Vincent Thomas v. Howard A. Peters, Iii, Director, Department of Corrections, State of Illinois

*1008 EASTERBROOK, Circuit Judge,

concurring.

The principal question before us is not “whether Gilmore v. Taylor, — U.S. -, 113 S.Ct. 2112 , 124 L.Ed.2d 306 (1993), impliedly overrules our earlier decision that the old Illinois Pattern Jury Instructions for murder and manslaughter, when given together, deprive a criminal defendant of due process of law.” Majority opinion at 1001. Taylor formally reserves that issue. We must decide, not whether Taylor has taken the subject out of our hands, but whether our earlier decision is right. The Court’s analysis in Taylor demonstrates that Falconer v. Lane, 90S F.2d 1129 (7th Cir.1990), is incorrect. We should say so rather than prop it up with yet another rationale.

Falconer used the Constitution to redress what the Supreme Court of Illinois held in People v. Reddick, 123 Ill.2d 184 , 122 Ill.Dec. 1 , 526 N.E.2d 141 (1988), to be a mistaken application of Illinois law. Federal courts lack authority to employ 28 U.S.C. § 2254 to enforce state law, see Estelle v. McGuire, 502 U.S. 62 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991), and our court soon abandoned Falconer’s original justification, replacing it with the view that the Illinois pattern jury instructions were too vague to lead to a reliable decision. Taylor v. Gilmore, 954 F.2d 441, 448-50 (7th Cir.1992), reversed, — U.S. -, 113 S.Ct. 2112 , 124 L.Ed.2d 306 (1993). See also Flowers v. Illinois Department of Corrections, 962 F.2d 703, 705 (7th Cir.1992), vacated, — U.S. -, 113 S.Ct. 2954 , 125 L.Ed.2d 656 (1993).

Just as Taylor threw over the rationale of Falconer, my colleagues renounce the rationale of Taylor. The panel in Taylor believed that the instructions are too vague, leaving jurors at sea. The Justices were distinctly unimpressed. Today’s majority writes that a review “has led us to look at prior concerns in a different way” (majority op. at 1004). Now the instructions are too clear! They make it plain that if the defendant is guilty of manslaughter as Illinois defines that offense he is guilty of murder as well. I agree with this reading of the instructions. See Flowers, 962 F.2d at 709-10 (concurring opinion). The majority believes that they place “in an impossible situation” (opinion at 1005) a juror who believes that the defendant has killed another person but should not be branded a murderer. This hypothetical juror wants to acquit of murder but under the instructions can’t. According to the majority, “[s]ueh a scheme makes a jury’s decision whether to convict for murder or manslaughter purely arbitrary, or worse, driven by impermissible considerations such as the defendant’s race, decision to testify in his own defense, prior convictions, or other such irrelevant factors.” Id. at 1005-06. In other words, the instructions are so explicit that they leave the jurors with no choice: if the defendant intentionally killed another person with an unjustified application of force, he is guilty of murder. Some jurors will find that outcome unpalatable, disregard the instructions, and decide on the basis of irrelevant or repugnant criteria.

Something must be wrong when the very precision of an instruction precludes its application. The possibility that jurors will disregard their instructions is not news. Jury nullification has not previously been thought to render instructions unconstitutional. Imagine what would happen if Illinois abolished self-defense as a mitigating factor, as Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977), and Martin v. Ohio, 480 U.S. 228 , 107 S.Ct. 1098 , 94 L.Ed.2d 267 (1987), say it may do. Then jurors who rebel at the idea of imprisoning a person who used only the force needed to repel an attack could not legitimately acquit; and if they could not legitimately acquit, they might turn to illegitimate reasons. Such a risk violates the Constitution. Patterson and Martin are thus undone.

Before Reddick Illinois defined murder and manslaughter so that every person who commits “manslaughter” also commits “murder.” The instructions told the jury to pick one of the offenses. Choosing among related offenses is a traditional task of juries; it happens when one crime is a lesser included offense of another and also when the elements of the offense overlap, or when the offenses are mutually exclusive. E.g., United States v. Gaddis, 424 U.S. 544 , 96 S.Ct. 1023 , 47 L.Ed.2d 222 (1976) (although bank *1009 robbers physically possess the proceeds, the offenses of robbery and possession are mutually exclusive and judge or jury must elect between them). Often juries (and prosecutors, see United States v. Batchelder, 442 U.S. 114 , 99 S.Ct. 2198 , 60 L.Ed.2d 755 (1979)) must choose without a rule of priority among offenses. Judges tell the jurors tcract on the basis of the evidence and arguments at trial. Jurors likely selected manslaughter for defendants with more sympathetic cases — for example, those who acted in self-defense. † None of this violates the Constitution. Yet the majority insists that it does, because of the possibility that the jurors will act for reasons outside the instructions and evidence. If that were the law — if the possibility of racial or other forbidden discrimination were treated the same as proof of discrimination — then all prosecutorial discretion would be unconstitutional, for the legislature does not prescribe the standards by which prosecutors decide who to charge, and with what crimes. But see Wayte v. United States, 470 U.S. 598 , 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985); McCleskey v. Kemp, 481 U.S. 279 , 107 S.Ct. 1756 , 95 L.Ed.2d 262 (1987). All capital punishment also would be unconstitutional, for the Supreme Court has held that jurors must be told that they may elect between life and death on the basis of criteria they choose themselves. The jurors’ ability to extend mercy cannot be limited. Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982). Jurors might be more merciful to defendants of favored races or religions. Yet last Term one Justice stood alone in thinking that this is a constitutional problem. Callins v. Collins, — U.S. -, - - -, 114 S.Ct. 1127, 1135-36 , 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting). The rest of the Justices believe that juries may possess an unfettered dispensing power. If the Constitution requires this liberty in capital murder cases, how can it forbid an equally unguided option to mete out mercy in non-capital murder cases?

Instead of assuming that jurors will defy distasteful instructions — an assumption that is the keystone of the majority’s analysis— we must proceed as if jurors follow the law as the judge articulates it. Shannon v. United States, — U.S. -, -, 114 S.Ct. 2419, 2427 , 129 L.Ed.2d 459 (1994). Juries are told to disregard irrelevancies such as race, to base their decisions on the evidence at trial. The presumption that jurors follow their instructions “is not a bursting bubble, applicable only in the absence of better evidence. It is a rule of law — a description of the premises underlying the jury system, rather than a proposition about jurors’ abilities and states of mind. See Parker v. Randolph, 442 U.S. 62, 73 , 99 S.Ct. 2132, 2139 , 60 L.Ed.2d 713 (1979) (plurality opinion) (‘A critical assumption underlying [the] system [of trial by jury] is that juries will follow the instructions given them by the trial judge. Were this not so, it would be pointless for a trial court to instruct a jury, and even more pointless for an appellate court to reverse a criminal conviction because the jury was improperly instructed.’); Jackson v. Denno, 378 U.S. 368 , 382 n. 10, 84 S.Ct. 1774 , 1783 n. 10, 12 L.Ed.2d 908 (1964); Opper v. United States, 348 U.S. 84, 95 , 75 S.Ct. 158, 165 , 99 L.Ed. 101 (1954). Cf. Sparf & Hansen v. United States, 156 U.S. 51, 80 , 15 S.Ct. 273, 284-85 , 39 L.Ed. 343 (1895).” Gacy v. Welborn, 994 F.2d 305, 313 (7th Cir.1993).

Falconer, Taylor, and today’s majority have advanced incompatible rationales for finding a constitutional problem in the old pattern jury instructions. While, the explanation mutates, the conclusion remains. As *1010 today’s 'majority all but confesses, the real defect .is not state judges’ failure to follow the Constitution. It is that the instructions • were incorrect as a matter of Illinois law.

[This circuit’s earlier] decisions essentially characterized the error as possibly depriving defendants of the benefit of the affirmative defense of manslaughter and, in so doing, resulting in murder convictions that, under Illinois law, should have been manslaughter convictions.

Majority op. at 1003. Exactly so. This is the short of it — and there is no long of it. “A federal court may not issue the writ on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 , 104 S.Ct. 871, 874-75 , 79 L.Ed.2d 29 (1984). See also, e.g., Smith v. Phillips, 455 U.S. 209, 221 , 102 S.Ct. 940, 948 , 71 L.Ed.2d 78 (1982); Flowers, 962 F.2d at 707-12 (concurring opinion). The Supreme Court’s opinion in Taylor dispels any doubt that this principle applies to errors in jury instructions. “Outside of the capital context, we have never- said that the possibility of a jury misapplying state law gives rise to a federal constitutional error. To the contrary, we have held that instructions that contain errors of state law may not form the basis for federal habeas relief.” — U.S. at -, 113 S.Ct. at 2117.

That is not all the Court has to say about the cases in our Falconer sequence. Falconer itself tried to dodge the appearance of using the Constitution to enforce state law by contending that the defendant has a constitutional right to a reasonable chance of being acquitted on a theory of self-defense. The Supreme Court addressed that argument and held it incorrect, because it contradicts Patterson and Martin — U.S. at -, 113 S.Ct. at 2117. (The Justices also observed that our opinion in Taylor had withdrawn this part of Falconer’s rationale.) Then the Court turned to the Taylor panel’s effort to lay a better foundation for Falconer’s holding. Addressing the possibility that the instructions were too vague, the Justices said that the pattern jury instructions did not fall below the standard of Boyde v. California, 494 U.S. 370 , 110 S.Ct. 1190 , 108 L.Ed.2d 316 (1990), and like cases. See — U.S. at-, 113 S.Ct. at 2118. The Court undercut the substance of our panel’s conclusion, not just its power to support retroactive application; but I need not pursue the subject because today’s majority has done a 180° turn, finding the instructions clear rather than cloudy.

After observing that all of this court’s explanations are deficient, the Justices took up some additional arguments proposed by Taylor’s lawyer — variations on the theme that the pattern instructions deprived him of the opportunity to present an effective defense. The Court might have responded that this would be a “new rule” that could not be employed on collateral review. Instead it wrote: “such an expansive reading of our cases would make a nullity of the rule reaffirmed in Estelle v. McGuire, supra, that instructional errors of state law generally may not form the basis for federal habeas relief.” — U.S. at - - -, 113 S.Ct. at 2118-19. The majority in Taylor addressed one final effort to “constitutionalize” the error of Illinois law. Justice Blackmun, writing in dissent, marshaled several strands of constitutional doctrine in an effort to show that Taylor had been deprived of a fundamentally fair trial. The majority called the result “an unrecognizable constitutional stew.” — U.S. at - n. 4, 113 S.Ct. at 2119 n. 4.

The majority dismisses these statements as dictum. The Supreme Court addressed in Taylor the question whether Falconer could be applied to cases whose direct appeals ended before June 29, 1990, when Falconer was decided. Retroactive application is possible only if Falconer was “dictated by precedent existing at the time the defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288, 301 , 109 S.Ct. 1060, 1070 , 103 L.Ed.2d 334 (1989). See also Caspari v. Bohlen, — U.S. -, 114 S.Ct. 948 , 127 L.Ed.2d 236 (1994). The Court held that Falconer was not so dictated. That could be true for either of two reasons: (a) its principle was not compelled by the Supreme Court’s pre-1990 cases; (b) its principle was contradicted by the Supreme Court’s pre-1990 cases. In Taylor the Court gave explanation (b). That it could have given an explanation of type (a) does not detract from the fact that it did give an explanation of type (b), which therefore is a holding. Compare United States v. Martin Linen Supply Co., 430 U.S. 564, 568 , 97 S.Ct. 1349, 1352-53 , *1011 51 L.Ed.2d 642 (1977), with id. at 576 n. 1, 97 S.Ct. at 1357 n. 1 (Stevens, J., concurring). Similarly, a court asked to give the defendant qualified immunity because the plaintiffs claim was not “clearly established” at the time the defendant acted may reply: “It is not clearly established even today.” See Siegert v. Gilley, 500 U.S. 226, 232-33 , 111 S.Ct. 1789, 1793-94 , 114 L.Ed.2d 277 (1991). A reason of type (b) would not be dispositive today if, after June 1990, the Supreme Court had overruled the cases with which Falconer conflicted, but it hasn’t. In Taylor the Court reiterated these cases and norms — and particularly the rule that collateral attack under § 2254 may not be used to correct errors of state law.

All of this today’s majority approaches in a never-say-die spirit. If the earlier rationales have been swept away, find a new one. Perseverance is admirable, but there comes a time to recognize that we are an inferior court. “[I]t is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.” Johnson v. United States, 163 F. 30, 32 (1st Cir.1908) (Holmes, Circuit Justice). Let us give Falconer a decent burial. Because the instructions did not violate any of Thomas’s constitutional rights, I join the majority in reversing the' judgment issuing a writ of habeas corpus.

The instructions defined murder in three "propositions” and manslaughter in four. The first two were identical. The third element of murder was "[t]hat the defendant was not justified in using the force which he used.” The third and fourth propositions of manslaughter were "[t]hat when the defendant did so he believed that circumstances existed which would have justified killing [the victim]; and [t]hat the defendant's belief that such circumstances existed was unreasonable." So murder was defined as an intentional killing without actual justification, and manslaughter as an intentional killing coupled with an unreasonable belief that the act was justified. Many a trial centered around whether the accused had a belief that the application of force was necessary, and, if so, whether that belief was reasonable. Only a juror with a tin ear would fail to appreciate that a defendant who had an actual, but unreasonable, belief in the necessity of using force ought to be convicted of manslaughter, even though the instructions defined the same circumstances as murder to boot.