Petition — Director, Illinois Department of Corrections v. Gray

83-1286 [rirrs”

No. FEB 3 1984

~T ALEXANDER L. STEVAS.

CLERK

3n the

Supreme Court of the Anited States

OctToser Term, 1983

DIRECTOR, Illinois Department Of Corrections,

Petitioner,

vs.

PAULA GRAY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Ne F. Hartican

Attorney General

State of Illinois,

188 West Randolph Street,

Suite 2200,

Chicago, Illinois 60601,

Attorney for Petitioner.

Ricuarp M. DaLtey,

State’s Attorney,

County of Cook,

Room 500 Richard J. Daley Center,

Chicago, Illinois 60602,

Micwaet E. Sxasat,*

Kevin SwWEENEY,

Assistant State’s Attorneys,

Of Counsel.

* Counsel of Record

(312) 443-5496

The Scheffer Press, Inc.—(312) 263-6850

i

QUESTIONS PRESENTED

Whether the Court of Appeals should have vacated

a state murder conviction in habeas corpus proceedings

on grounds which were not considered by the District

Court, raised on appeal or briefed by the parties.

Whether a federal court, when it feels that a prompt

retrial would be just, may waive the requirement that a

habeas corpus petitioner exhaust state remedies.

Whether representation of co-defendants by a single

attorney is barred when there is a theoretical possibility,

not proven at any hearing, that one of the defendants

could have benefited by cooperating with the prosecution.

3

TABLE OF CONTENTS

Questions Presented for Review ..........ccccccsseseseseeseeemeeses

IN TE III -cccncsacsceepessienunssecisieinseieetivoesn nent fuddanbitinemnianl

I III ics cninsieseanetnttephedlichiaiadeinababadeameani

ITE IIIT “dias iccatacseesicetn detiandeshncihieeesisnennapabaceitealaliani

EE te GUID «in csneccchnninsniesinipshisnsaignaptinesmsansiiondion

Constitutional and Statutory Provisions Involved ....

I I OID cache lake setscissehichpaiainieeniaiiilaies

Reasons for Granting the Writ ..............cccccccccssssssessseeees

THE COURT OF APPEALS SHOULD NOT

HAVE VACATED A STATE MURDER CON-

VICTION ON GROUNDS NOT CONSIDERED

BY THE DISTRICT COURT, RAISED ON

APPEAL, OR BRIEFED BY THE PARTIES...

THE COURT OF APPEALS HAD NO

AUTHORITY TO WAIVE THE REQUIRE-

MENT THAT RESPONDENT EXHAUST HER

STATE REMEDIES BEFORE SEEKING FED-

ERAL HABEAS CORPUS RELIEF. ................

UNDER THE RULE OF CUYLER V.

SULLIVAN, THE RECORD IN THIS CASE

DOES NOT PROVE AN ACTUAL CONFLICT

TAETUIIITITIS disnshicccshisissiessiccideimensunsehtednmsttbeineniaisabiateoaions

ES EES Eee RO AER HE SAN Se ;

Appendix A

Opinion of the United States Court of Appeals

SE CORMIER IONE victnccsnsicseorsisectssdadanemstinsnainies

Appendix B

Order Denying a Rehearing ...........ccccccccccceseeeseeeesees

ll

- » »°»¥» »®™vw

iil

TABLE OF AUTHORITIES

Cases:

PAGE

Barefoot v. Estelle, 103 S.C. 3383 (1983) 0.0... cece 10

Cuyler v. Sullivan, 446 U.S. 335 (1980) ............ 16, 18, 20

Dukes v. Warden, 406 U.S. 250 (1972) coccccceseees 19, 20

Engle v. Issac, 456 U.S. 107 (1982) .......ccsccccecscessseneses 7

Holloway v. Arkansas, 435 U.S. 475 (1978) ....ccccseee 20

Nelson v. George, 399 U.S. 244 (1970) w..cccccsccccssseeees 13

People v. Edmonds, 79 Ill. App.3d 33, 398 N.E.2d

BE ER eee ne mene seem 14

People v. Gleckler, 82 Ill.2d 145, 411 N.E.2d 849

ISITUTT . Sssceaslihabclcilctietiposapainsstitasiesalesiasnieunbianlaghtiobinaiidtiseases 8

People v. Gray, 87 Tl. App.3d 142, 408 N.E.2d 1150

Be I SUD atkercecssdincsinccciscanin’ seiahedlinctinaceantneeingn 14

People v. Meyers, 46 Tll.2d 149, 163 N.E.2d 81 (1970) 14

People v. Partin, 69 Tll.2d 80, 370 N.E.2d 535 (1977) 14

People v. Rainge, 112 Ill. App.3d 396, 445 N.E.2d

BE EE SUIEs CURUED siccicssseaschschacelanenennmnivteinnietzanind 9,14

People v. Ruiz, 24 Ill. App.3d 449, 321 N.E.2d 746

TIE TMIOTIET coniehtaicsensactaspabaeaclaescamenGandeietenemninienstian 14

People v. Sigafus, 39 Tll.2d 68, 233 N.E.2d 386 (1968) 15

People v. Stepheny, 46 Ill.2d 153, 263 N.E.2d 83

EEE eee Ne OOO ee ER Re BO 14

People v. Williams, 93 Ill.2d 309, 444 N.E.2d 136

SOMITE cacdlbcticrssiiibasciscineieiiescscanhcaentmibcianiibandsdeidneintilcbetansanibsanieaiid 9,14

Pritchess v. Davis, 421 U.S. 482 (1975) ..ccccccceceeees 13

Rose v. Lundy, 455 U.S. 509 (1982) ou... .ccccsccsesecseesees 8,13

Strunk v. United States, 412 U.S. 434 (1973) ........... 7

iv

Swenson vy. Stidham, 409 U.S. 224 (1972)

United States v. Philadelphia National Bank, 374 U.S.

321 (1963)

Wood v. Georgia, 450 U.S. 261 (1981) vce. 15, 19, 20

STATUTES:

Ill. Rev. Stat. 1977, ch. 38, sec. 122-1 et seq.

28 U.S.C. 992254(b), 2254(c)

In THE

SUPREME COURT OF THE UNITED STATES

Ocroser T'reRM, 1983

No.

DIRECTOR, Illinois Department Of Corrections,

Petitioner,

vs.

PAULA GRAY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

To THe Curer Justice ANp AssociATE Justices Or THE

Supreme Court Or Tue Unirep Srates:

May It Puease THE Covrt:

Petitioner, the Director, [llinois Department of Cor-

rections, respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Seventh Circuit.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit is reported as United States ex

rel. Gray v. Director, Department of Corrections, State

—

of Illinois, 731 F.2d 586 (7th Cir. 1983). It is reproduced

as Appendix A of this petition. The order of the Court

of Appeals denying a rehearing is reproduced as

Appendix B of this petition.

STATEMENT OF JURISDICTION

This Court’s jurisdiction is invoked pursuant to 28

U.S.C. 91254(1). The opinion of the United States Court

of Appeals for the Seventh Circuit was filed on November

16, 1983. A timely petition for rehearing was filed and

was denied on December 22, 1983. This petition is filed

within 90 days of th@sdenial of the rehearing.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. United States Constitution, Sixth Amendment:

In all criminal prosecutions the accused shall en-

joy the right... to have the Assistance of Counsel for

his defense.

2. 28 U.S.C. 1912254(b), 2254(c):

An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judg-

ment of a State Court shall not be granted unless it

appears that the applicant has exhausted the reme-

dies available in the courts of the State, or that

there is an absence of available State corrective

process or the existence of circumstances rendering

such process ineffective to protect the rights of the

prisoner.

An applicant shall not be deemed to have ex-

hausted the remedies available in the courts of the

State, within the meaning of this section, if he had

the right under the law of the State to raise, by any

available procedure, the question presented.

ies

3. Illinois Post-Conviction Hearing Act (Ill. Rev.

Stat., Ch. 38, sec. 122-1):

Any person imprisoned in the penitentiary who

asserts that in the proceedings which resulted in his

conviction there was a substantial denial of his

rights under the Constitution of the United States

. . May institute a proceeding under this Article.

STATEMENT OF THE CASE

Respondent Paula Gray was convicted in the Illinois

courts of the crimes of murder, rape and perjury. Her

convictions were affirmed on appeal, but she failed to

file a petition in the state courts for post-conviction

relief. Respondent did file a petition for a writ of habeas

corpus in federal court. That habeas corpus petition was

dismissed for failure to exhaust state remedies. The

Court of Appeals for the Seventh Circuit reversed, and,

after considering the merits of the hebeas corpus petition,

remanded with directions that the petition be granted.

Respondent Paula Gray was a co-defendant of two

respondents whose cases are now before this Court on

petitions for writs of certiorari. People v. Dennis

Williams, No. 82-1691; People v. Willie Rainge, No.

83-147. Respondent was tried before a separate jury,

however, and the evidence against her was stronger

than the evidence against her co-defendants. Specifically,

respondent confessed on several occasions to participation

in the gang rape of Carol Schmal and the murder of

Miss Schmal and Larry Lionberg.

At about 2:30 a.m., on May 11, 1978, Larry Lionberg

and his girlfriend Carol Schmal were kidnapped at a

gas station in Homewood, Illinois. Money and other items

had been taken from the station, where Lionberg had

—

been working as an attendant. The next day the dead

bodies of Lionberg and Schmal were discovered at an

abandoned building in East Chicago Heights, Illinois.

Both had been shot to death. Carol Schmal’s body was

naked from the waist down, and there was medical

evidence indicating that she had been raped.

Respondent gave accounts of her participation in these

crimes to a police officer, to an assistant state’s attorney,

and to the Cook County grand jury. All three accounts

were essentially the same. Respondent had not been

present when Larry Lionberg and Carol Schmal were

kidnapped, but she had been present when both were

murdered. She had held a cigarette lighter to illuminate

the scene while Carol Schmal was gang raped and shot

to death.

At about 3:00 a.m. on May 11, respondent had been

near the abandoned building in East Chicago Heights

together with her boyfriend, co-defendant Kenneth

Adams. She saw several men, including co-defendants

Dennis Williams and Willie Rainge, force Larry Lionberg

and Carol Schmal out of a car. Then Dennis Williams

went over to respondent, grabbed her by the arm, and

told respondent to come with them. Everyone then went

into the abandoned building. While Larry Lionberg was

held downstairs, Carol Schmal was taken to an unlit

bedroom on the second floor.

As the bedroom was very dark, Dennis Williams told

respondent to light and hold a Bie lighter to illuminate

the scene. Respondent held the lighter, periodically re-

lighting it, while four men raped Carol Schmal. Respon-

dent continued to hold the lighter while three of the

men raped Carol Schmal again. Kenneth Adams refrained

from raping Miss Schmal! a second time because respon-

a

dent asked him not to. Then, as respondent continued

to hold the lighter, Dennis Williams turned Carol Schmal

over and shot her to death.

Respondent, Dennis Williams and Willie Rainge then

took Larry Lionberg to a field near the abandoned

building. Respondent watched while Williams and Rainge

shot Lionberg to death.

Respondent was not arrested or charged after the

police first learned of her involvement in the murders.

Instead it was the intention of prosecution to use respon-

dent as a witness against the other offenders. For that

reason respondent was called as a witness before the

grand jury. However, respondent was never granted any

kind of immunity.

But at a preliminary hearing on June 19, 1978, respon-

dent repudiated all her statements incriminating the

other offenders, and claimed that she had been forced

to lie by the prosecutors. It was discovered that before

the preliminary hearing respondent and her family had

moved into the home of Dennis Williams. Respondent

had arrived at the preliminary hearing in the company

of Archie Weston, the attorney for Dennis Williams and

Willie Rainge.

There is no evidence that after the preliminary hear-

ing on June 19, the prosecution ever attempted to plea

bargain with respondent or ever attempted to gain her

cooperation against the other offenders. Nor is there

any evidence that respondent ever indicated any interest

in plea bargaining with the prosecution. On September

1, 1978, respondent was indicted for murder, rape and

perjury. Shortly thereafter attorney Archie Weston en-

tered an appearance for respondent. At no time before

—_ oo

September 1 had attorney Weston ever appeared as

respondent’s attorney.

At the trial in this case respondent and co-defendants

Williams, Rainge and Adams all presented consistent

defenses. All claimed that they were not present at the

time of the murders and had no involvement in them.

All defendants were convicted, Williams was sentenced

to death, and respondent and the other defendants re-

ceived long prison terms.

Respondent’s conviction was affirmed on appeal. People

v. Gray, 87 Til. App.3d 142, 408 N.E.2d 1150 (1st Dist.

1980). She then filed a petition for a writ of habeas

corpus in the United States District Court for the North-

ern District of Illinois. United States ex rel. Paula Gray

v. Director, Department of Corrections, State of Illinois,

81 C 4545. The District Court dismissed the petition,

ruling that respondent had failed to exhaust state reme-

dies in that she had not filed a petition under the Illinois

Post-Conviction Hearing Act. Ill. Rev. Stat., Ch. 38, sec.

122-1 et seq.

Respondent appealed to the United States Court of

Appeals for the Seventh Circuit, solely on the issue of

whether she had exhausted her state remedies. No other

issue was briefed by the parties. But the Seventh Circuit

went directly to the merits of the habeas corpus petition,

and ruled that it should have been granted. The matter

was remanded with directions that respondent be released

or retried.

— oe

REASONS FOR GRANTING THE WRIT

1

THE COURT OF APPEALS SHOULD NOT HAVE

VACATED A STATE MURDER CONVICTION ON

GROUNDS NOT CONSIDERED BY THE DISTRICT

COURT, RAISED ON APPEAL, OR BRIEFED BY

THE PARTIES.

In this case the Court of Appeals vacated a state

murder conviction without ever giving the state a chance

to defend the validity of that conviction. The sole ques-

tion considered by the District Court was whether

respondent had exhausted her state remedies. Exhaustion

of state remedies was the sole question raised or briefed

by the parties in the Court of Appeals. At no time was

petitioner ever given notice that the Court of Appeals

would consider the merits of the habeas corpus petition,

and at no time was petitioner ever given an opportunity

to brief the question of whether respondent had been

deprived of effective assistance of counsel. In effect the

State of Illinois has been condemned unheard.

The Court of Appeals erred when it vacated respon-

dent’s convictions on grounds neither raised by respon-

dent or briefed by either party. Strunk v. United States,

412 U.S. 484, 437 (1973). Review of state convictions

in federal-habeas corpus actions entail great “finality

problems and special comity concerns.” Engle v. Issac,

456 U.S. 107, 134 (1982). It was a violation of federal

state comity to vacate respondent’s murder conviction

without ever giving the State of Illinois a chance to

defend that conviction,

dnsllitien

The briefs of the parties in the Court of Appeals

were directed solely to the question of whether respon-

dent had exhausted her state remedies, and never dis-

cussed the merits of respondent’s habeas corpus petition.

The Argument section of respondent’s brief as appellant

in the Court of Appeals was only three pages long, and

the single issue discussed was exhaustion of state reme-

dies. The sole argument heading in respondent’s brief

was as follows:

The District Court Erred In Dismissing The Instant

Habeas Corpus Petition By Misapplying The Rule

Announced in Rose v. Lundy.

Rose v. Lundy, 455 U.S. 509 (1982), of course, deals

solely with the question of exhaustion of state remedies.

Thus the merits of the habeas corpus petition were

never before the Court of Appeals, and the court erred

in deciding a question which was not before it.

Perhaps it would not have mattered that the Court of

Appeals decided an issue neither raised nor briefed by

the parties if that court had correctly stated and applied

the law. But that is not the case. The opinion of the

Court of Appeals contains an elementary but important

mistake concerning Illinois law.

The Court of Appeals held that, because respondent’s

attorneys also represented her co-defendant, respondent’s

attorney could not have asserted the defense of coercion

at trial. But coercion or compulsion is no defense to a

charge of murder in Illinois. Ill. Rev. Stat. 1977, ch. 38,

sec. 7-11(a); People v. Gleckler, 82 Til. 2d 145, 411 N.E.2d

849 (1980). As the [Illinois Supreme Court said in

Gleckler: “The defence of compulsion, therefore, as a

matter of legislative intent, is unavailable to one charged

atin

with murder.” 82 Ill. 2d at 157, 411 N.E. 2d at 854. The

Court of Appeals erred when it held that respondent

could have benefited by asserting the defense of coercion,

or compulsion as it is called in Illinois, at her state

murder trial.

The error is important, because the failure to assert

the defense of compulsion is the only way in which the

Court of Appeals suggests that respondent was prejudiced

at trial by the fact that she had the same attorney as

her co-defendants. The other prejudice suggested by the

Court of Appeals concerns hypothetical pretrial plea bar-

gaining. In fact the defenses used by respondent and her

co-defendants were entirely consistent, and there is no

way in which respondent could have benefited at trial

by having a different attorney.

Thus the Court of Appeals vacated a state murder con-

viction in part because of an erroneous conclusion con-

cerning Illinois law. There are other ways in which

Court of Appeals suffered by considering issues not

raised or briefed by the parties. The Seventh Circuit’s

opinion relied heavily on the fact that Illinois reviewing

courts, after respondent’s conviction was affirmed, re-

versed the convictions of respondent’s two co-defendants.

People v. Williams, 93 Tl1.2d 309, 444 N.E.2d 136 (1982);

People v. Rainge, 112 Ill. App.3d 396, 445 N.F.2d 535

(1st Dist. 1983). However, the Seventh Circuit was not

informed, and did not note, that those decisions are now

before this Court on petitions for certiorari. People v.

Williams, No. 82-1691; People v. Rainge, No. 83-147.

More importantly, the Court of Appeals did not consider

the fact that the Williams and Rainge opinions gave re-

spondent a basis for seeking state post-conviction relief.

—

Finally, none of the facts as given in the opinion of

the Court of Appeals can be considered reliable, since

petitioner has never been given an opportunity to pre-

sent evidence in any brief or hearing.

In general it is the business of a reviewing court to

consider the issues decided by the court below and raised

by the parties on appeal. Swenson v. Stidham, 409 U.S.

224, 231 (1972); United States v. Philadelphia National

Bank, 374 U.S. 321, 334 fn. 10 (1963). Therefore, the

Court of Appeals in this case should not have decided

a question which was not reached by the District Court,

raised by respondent on appeal, or briefed by the parties.

This is particularly true since in habeas corpus proceed-

ings a state conviction is presumed to be valid, and should

not be lightly vacated. Barefoot v. Estelle, 103 S.Ct.

3383, 3391 (1983).

Respondent was convicted on overwhelming evidence

of participation in a gang rape and double murder. The

State of Illinois should be given a chance to defend the

validity of that conviction. Accordingly, a writ of cer-

tiorari should issue to review the decision of the Court

of Appeals. Two other forms of relief are possible.

The decision of the Court of Appeals could he sum-

marily vacated and the matter remanded with directions

to either affirm the District Court on the issue of ex-

haustion of state remedies or to remand to the District

Court for a ruling on the merits of the habeas corpus

petition. At a minimum, the matter should be remanded

to the Court of Appeals with directions to permit the

parties to brief the merits of respondent’s habeas corpus

action.

—o

t.

THE COURT OF APPEALS HAD NO AUTHORITY

TO WAIVE THE REQUIREMENT THAT RESPON-

DENT EXHAUST HER STATE REMEDIES BEFORE

SEEKING FEDERAL HABEAS CORPUS RELIEF.

Although the sole issue raised by respondent on ap-

peal concerned exhaustion of state remedies, the Court

of Appeals did not discuss that issue until the end of

its opinion. The discussion of the exhaustion juestion

by the Court of Appeals is by no means clear, but a

fair reading of the opinion indicates that the Seventh

Circuit simply waived the requirement that respondent

exhaust her state remedies before seeking federal habeas

corpus relief. The Court of Appeals had no legal author-

ity to do this.

This issue is an important one to the federal court

system, justifying a grant of certiorari. This court should

determine that a habeas corpus petitioner must exhaust

state post-conviction remedies before seeking federal

relief.

The key language of the Court of Appeals on the ex-

haustion question is as follows (Appendix A, p. 24a-25a) :

Nevertheless, the District Court held that the peti-

tion raised unexhausted claims because (1) sugges-

tions of improprieties “truly deserve a hearing’’,

(2) there should be a hearing in which counsel can

defend himself against serious charges; and (3) that

state courts should be given the first chance to con-

duct such a hearing.

We believe that under the circumstances here

present-especially the grant of new trials by the

Illinois Courts to Williams and Rainge after the

decision of the District Court in the case at bar—

these reasons are not sufficient to require Paula to

i

attempt to secure post-conviction relief in the Illinois

courts. In making this determination, we have in

mind that considerable lapse of time since the crimes

were committed and since the date of the conviction.

The interests of justice will be better served if the

new trial can be conducted with reasonable prompt-

ness.

In other words the Court of Appeals held that respon-

dent would not be required to exhaust her state remedies

because that court felt that it would be more just to

have a prompt retrial. The Seventh Circuit dismissed

as inappropriate the concern of the District Court that

‘* . . the state courts should be given the first chance

to conduct .. . a hearing.” (Appendix A, p. 25a) But

a concern that the state courts given the first chance to

conduct a hearing is the essence of the requirement that

a convicted defendant exhaust state remedies before seek-

ing federal habeas corpus relief.

There are no relevant exceptions to the requirement

that state remedies be exhausted before a state convic-

tion may be challenged in federal habeas corpus proceed-,

ings. Exhaustion of state remedies is required both by

the Habeas Corpus Act and by explicit decisions of this

Court. Therefore, the Court of Appeals violated the

law when it vacated respondent’s conviction without re-

quiring that she exhaust her state remedies.

The Habeas Corpus Act states as follows: (28 U.S.C.

992254(b), 2254(c)):

An application for a writ of habeas corpus on be-

half of a person in custody pursuant to the judgment

of a State Court shall not be granted unless it ap-

pears that the applicant has exhausted the remedies

available in the courts of the State, or that there is

=—

an absence of available State corrective process or

the existence of circumstances rendering such pro-

cess ineffective to protect the rights of the prisoner.

An applicant shall not be deemed to have exhausted

the remedies available in the courts of the State

within the meaning of this section, if he had the

right under the law of the State to raise, by any

available procedure, the question presented.

This Court had consistently enforced the requirement

that a habeas corpus petitioner first exhaust state reme-

dies. Rose v. Lundy, 455 U.S. 509 (1982); Pritchess v.

Davis, 421 U.S. 482 (1975); Nelson v. George, 399 U.S.

224 (1970).

In fact respondent had an available state remedy

through which she could have raised the issue of whether

her trial attorney labored under a conflict of interest.

The Illinois Post-Conviction Hearing Act provides that

‘*Any person imprisoned in the penitentiary who asserts

that in the proceedings which resulted in his conviction

there was substantial denial of his rights under the Con-

stitution of the United States . .. may institute a pro-

ceeding under this Article.’’ Ill. Rev. Stat. 1977, ch. 38,

sec, 122-1. If a petition under the Post-Conviction Hear-

ing Act establishes that a defendant was convicted in

violation of his federal constitutional rights, then he

must be granted a retrial or other appropriate relief.

Til. Rev. Stat., ch. 38, sec. 122-6. Thus the Post-Conviction

Hearing Act provides a remedy which is similar to a

federal habeas corpus petition. Respondent never filed

a state post-conviction petition, so she had failed to ex-

haust her state remedies.

Specifically, in an Illinois post-conviction proceeding

a petitioner may assert that his trial attorney was sub-

=

ject to a conflict of interest. People v. Meyers, 46 IIl.

149, 263 N.E.2d 81 (1970). The Court of Appeals should

have required respondent to assert that claim in a state

post-conviction petition before seeking federal relief.

It is true that in Illinois post-conviction proceedings

matters which have been decided on direct appeal are

res judicata and will not be reconsidered. People v.

Stepheny, 46 Ill. 2d 153, 263 N.E.2d 83 (1970). How-

ever, res judicata will not bar an Illinois post-conviction

petition when that petition is based on matters which

were not considered or could have been considered on

a direct appeal from the conviction. People v. Edmonds,

79 Ill. App.3d 33, 398 N.E.2d 230 (1st Dist. 1979). In

fact, the rule of res judicata will be relaxed in Illinois

post-conviction proceedings whenever “fundamental fair-

ness’’ requires that it be relaxed. People v. Partin, 69

Ill.2d 80, 370 N.E.2d 545 (1977); People v. Ruiz, 24 Ill.

App.3d 449, 321 N.E.2d 746 (1st Dist. 1974).

Therefore, the grounds on which the Court of Appeals

vacated the respondent’s murder conviction could have

been asserted in a state post-conviction proceeding. The

Court of Appeals relied on the fact that Illinois reviewing

courts had vacated the convictions of respondent’s co-

defendants. People v. Williams, 93 Ill.2d 309, 444 N.E.

2d 136 (1982); People v. Rainge, 112 [ll. App.%d 396,

445 N.E.2d 535 (1st Dist. 1983). But that fact could

not have been considered in respondent’s direct appeal,

since the Williams and Rainge decisions were handed

down after respondent’s direct appeal was decided. Peo-

ple v. Gray, 87 Ill. App.3d 142, 408 N.E.2d 1150 (1st Dist.

1980). In addition, in Illinois post-conviction proceedings

an evidentiary hearing may be held to determine if a

defendant in a criminal case had been deprived of effec-

— =

tive assistance of counsel. People v. Sigafus, 39 Tll.2d

68, 233 N.E.2d 386 (1968). An evidentiary hearing is the

usual means to determine whether a defense attorney in

a criminal case was subject to a conflict of interest. Wood

v. Georgia, 450 U.S. 261 (1981). No such hearing has yet

been held in Illinois courts, so of course no such hear-

ing was reviewed on respondent’s direct appeal. The

Court of Appeals, rather than voiding respondent’s con-

viction, should have given the [llinois courts a chance

to hold a hearing on whether an actual conflict of interest

existed in respondent’s representation at trial.

In conclusion, the Court of Appeals should not have

waived the requirement that respondent exhaust her state

remedies. Respondent could have filed a state post-con-

viction petition asserting that the convictions of her co-

defendants had been reversed and demanding an eviden-

tiary hearing on whether she received effective assistance

of counsel at trial. The questions of whether a habeas

corpus petitioner must exhaust state post-conviction re-

medies is an important one which should be resolved by

this Court. Therefore, this Court should grant certiorari

in order to determine whether petitioner was required to

pursue state post-conviction remedies before seeking fed-

eral habeas corpus relief.

ITT.

UNDER THE RULE OF CIUUYLER V. SULLIVAN

THE RECORD IN THIS CASE DOES NOT PROVE AN

ACTUAL CONFLICT OF INTEREST.

The Court of Appeals voided respondent’s conviction

largely because it felt that respondent could have benefited

by plea bargaining with the prosecution and by offering

to cooperate with the state against her co-defendants.

=

But there is no evidence that after respondent was in-

dicted the state had any interest in plea bargaining with

her or that she had any interest in plea bargining with

the state. In fact it is more reasonable to conclude that,

after respondent repudiated her statements incriminating

herself and her co-defendants, the prosecution lost all

interest in plea bargaining with her. Since there has never

been an evidentiary hearing proving that respondent was

prejudiced by multiple representation, the Court of Ap-

peals erred in vacating her conviction, Cuyler v. Sullivan,

446 U.S. 335 (1980).

This case presents an important question concerning in-

terpretation of the Sixth Amendment, justifving a grant

of certiorari. This Court should determine whether a

per se conflict of interest exists when a single attorney

represents co-defendants and there is a theoretical pos-

sibility, not proven at anv hearing, that one of the

co-defendants could benefit by cooperating with the pro-

secution.

Respondent was indicted more than two months after

she had repudiated her incriminating statements and

had claimed to know nothing about the murders, Her

trial attorney entered an appearance on her behalf only

after the indictment. The opinion of the Seventh Cir-

cuit suggests three wavs in which respondent could have

prejudiced by multiple representation. (Appendix A, p.

22a):

1. Her trial attorney might have been prevented

from asserting the defense of coercion;

2. Her trial attorney might have been inhibited

in asserting at sentencing that respondent played a

smal] role in the rape and murders;

on

3. Her trial attorney might have been inhibited

in plea bargaining with the state in return for respon-

dent's cooperation against her co-defendants.

The first of these three suggestions is based on a mis-

statement of Tlinois law. Coercion or compulsion is no

defense to a charge of murder in Tllinois. People v. Gleck-

ler, 82 Til. 2d 145, 411 N.E.2d 849 (1980), The second

of these three suggestions is irrelevant to the validity of

respondent’s conviction, since at most it could justify a

new sentencing hearing. Therefore, respondent's convie-

tions for murder, rape and perjury were vacated solely

because of a theoretical possibility that, after the indict-

ment, respondent could have benefited by offering to co-

operate with the prosecution against her co-defendants,

Since there is no evidence that the proseeutors had any

desire to plea bargain with respondent after she was in-

dicted, there is no proof ap the record that respondent

was prejudiced by multiple representation,

After all, in almost every criminal case involving co-

defendants, there is theoretical possibility that one de-

fendant micht benefit by testifving against another. But

that possibility alone should not make representation of

co-defendants by a single attorney illegal. It is true

that in this case the prosecution had originally intended

to use respondent as a witness against the other offen-

ders. But that plan was thwarted when respondent at a

preliminary hearing repudiated all the statements she

had given incriminating the defendants, After that her

value as a potential witness almost vanished, Her testi-

mony repudiating her prior statements showed that the

prosecution could not rely on her, In addition, even if

respondent had agreed to testify as a state’s witness,

she could have been impeached by her testimony from

=

the preliminary hearing. It is far more likely than not

that after respondent was indicted the prosecutors neither

wanted to plea bargain with respondent nor thouglit that

they had anything to gain by trying to secure her co-

operation.

The truth of this matter could have been discovered

through an evidentiary hearing to determine if respon-

dent’s trial attorney was subject to an actual conflict in

interest. Evidence could have been taken concerning

whether, after respondent was indicted, there was any

possibility that she could have benefited by trving to

plea bargain with the prosecutors. But the Court of Ap-

peals refused to order an evidentiary hearing either in

federal district court or in state court. Thus the Court

of Appeals erred when it vacated respondent's convic-

tion without evidence of an actual conflict of interest,

This Court’s decision in Cuyler is in point on this

issue. Cuyler v. Sullivan, 446 U.S. 335 (1980). Tn that

case the same attorneys represented three co-defendants,

One of the defendants, after being convicted of murder,

petitioned for habeas corpus. He alleged that he had

been prejudiced by multiple representation, and there

was evidence that his attorneys at trial had rested with-

out calling witnesses in order to protect the interests of

the two co-defendants, Nevertheless, this Court held

that the facts did not establish a per se conflict of in-

terest, and that the defendant could obtain relief only

on a showing of actual prejudice. This Court said:

We hold that the possibility of conflict is insuffi-

cient to impugn a criminal conviction. In order to

demonstrate a violation of his Sixth Amendment

rights, a defendant must establish that an actual

conflict of interest adversely affected his lawyer’s per-

formance. 446 U.S. at 350.

— |

Therefore, respondent here was entitled to relief only

if it could be found after an evidentiary hearing that

she was actually prejudiced after her indictment by

having the same attorney as her co-defendants.

The same conclusion is required by Wood v. Georgia,

450 U.S. 261 (1981). In that case certain employees in

a state obscenity prosecution were represented by the

same attorneys as their employers. This Court held that

the situation created a possibility of a conflict of interest,

and remanded for an evidentiary hearing in state court

on whether an actual conflict of interest existed. The

Court of Appeals erred in this case by refusing to fol-

low this Court’s decision in Wood. Instead of finding a

per se conflict of interest, the Court of Appeals at most

should have remanded for an evidentiary hearing on

whether an actual conflict of interest existed in respon-

dent’s representation at trial.

The decision of the Court of Appeals also conflicts

with the decision of this Court in Dukes v. Warden, 406

U.S. 250 (1972). In that case an attorney represented

three co-defendants who each pled guilty. The attorney

sought leniency for two of the defendants on the grounds

that they had been misled by the third defendant and

had cooperated with the prosecution against the third

defendant. This Court held that the third defendant had

not been deprived of effective assistance of counsel, since

there was no evidence that the representation afforded

the third defendant had been affected in any way by his

attorney’s efforts on behalf of the co-defendants. Simi-

larly, there is no actual evidence that respondent here

was prejudiced by having the same trial attorney as her

co-defendants.

In fact, representation of co-defendants at trial by a

single attorney is a common event in criminal cases in

a ae

both state and federal court. When, as here, the defen-

dants have consistent defenses at trial, they may benefit

by having a single attorney to coordinate their defense.

The Court of Appeals held that multiple representation

is barred when one defendant might benefit by co-opera-

ting with the prosecution against a co-defendant. That

rule would bar multiple representation in most cases.

Of course, if there is evidence of an actual conflict of

interest causing prejudice to a defendant, then there are

grounds to vacate a conviction. But the Court of Appeals

here found evidence of an actual conflict to be unnecessary,

since it voided respondent’s conviction outright without

remanding for an evidentiary hearing on whether an actual

conflict of interest existed.

This Court has attempted to define the law governing

multiple representation and conflicts of interest. Wood

v. Georgia, 450 U.S. 261 (1981); Cuyler v. Sullivan, 446

U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475

(1978); Dukes v. Warden, 406 U.S. 250 (1972). The

question is an important one to the administration of

criminal justice. This Court should grant certiorari in

order to establish that a mere possibility that one defen-

dant might benefit by cooperating with the prosecution

against a co-defendant is insufficient to void a conviction

in the absence of evidence of an actual! conflict of interest.

CONCLUSION

Petitioner respectfully prays that this Honorable Court

grant a petition for a writ of certiorari to review the

judgment and opinion of the United States Court of Ap-

peals for the Seventh Circuit.

— ee

Or, in the alternative, petitioner prays that the deci-

sion of the Court of Appeals be summarily vacated, and

that the matter be remanded to the Court of Appeals

with directions to either affirm the judgment of the Dis-

trict Court on the exhaustion issue or remand to the

District Court for a hearing on the merits of the peti-

tion for a writ of habeas corpus.

Or, in the alternative, petitioner prays that the deci-

sion of the Court of Appeals be summarily vacated, and

that the matter be remanded to the Court of Appeals

with directions to permit the parties to brief the merits

of the petition for a writ of habeas corpus.

Respectfully submitted,

Ne F. Hartican

Attorney General

State of Illinois,

188 West Randolph Street,

Suite 2200,

Chicago, Illinois 60601,

Attorney for Petitioner.

Ricwarp M. Datey,

State’s Attorney,

County of Cook,

Room 500 Richard J. Daley Center,

Chicago, Illinois 60602,

MicHaet FE. SHasat,*

Kevin SwEeENey,

Assistant State’s Attorneys,

Of Counsel.

* Counsel of Record

(312) 443-5496

——l

APPENDIX A

Opinion of the United States Court of Appeals for the

Seventh Circuit in United States ex rel. Gray v. Direc-

tor, Department of Corrections, State of Illinois, 731 F.

2d 586 (7th Cir. 1983).

Ix THE

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 82-2940

UNITED STATES OF AMERICA, ex rel. Paula Gray,

Petitioner-Appellant,

Vs.

DIRECTOR, DEPARTMENT OF CORRECTIONS,

STATE OF ILLINOIS,

Respondent-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 81 C. 4545—Susan GetTzENDANNER, Judge.

Argued May 25, 1983—Decided November 16, 1983

Before, Woop and Cupany, Circuit Judges, and Wyatt,

Senior District Judge.*

Wyvatr, Senior District Judge. This is an appeal by

Paula Gray (“Paula”), in custody of the respondent, Di-

rector, Department of Corrections, State of Illinois, from

an order of the District Court dismissing on motion a

* The Honorable Inzer B. Wyatt, Senior District Judge

for the Southern District of New York, is sitting by

designation.

— Ja —

petition for a writ of habeas corpus for failure to ex-

haust available state remedies. 98 U.S.C. § 2254 (b).

Paula was sentenced on February 92, 1979, in the Cir-

euit Court of Cook County, Illinois, after a jury had

found her guilty of murder, rape, and perjury; her

part was that of an aider and abettor, The sentence was

imprisonment for eoncurrent terms of 50 years each

for two murders and for rape, and of ten years for

perjury.

By order filed May 6, 1982, the District Court denied

motion of respondent to dismiss the petition. The reasons

for the denial are said in the order to have been “stated

in open court”. The record does not contain any transcript

of what was “stated in open eourt”.

The District Court later changed its decision. By order

with opinion filed October 18, 1982, the motion of re-

spondent to dismiss the petition was granted on the

ground that Paula had not exhausted state remedies.

This appeal followed and, the District Court having

issued a certificate of probable cause, there is jurisdic-

tion in this Court of the appeal under 28 U.S.C. § 2258.

We reverse the omer of dismissal of the District Court.

a

On Thursday, May 11, 1978, related and revolting

crimes were committed in the Homewood and East Chi-

caro Heights sections of Chicago. About five months

later, three of the four men who committed these crimes

and Paula, who aided and abetted them, were convicted

by jury verdicts. One man was sentenced to death; one

man was sentenced to life imprisonment; one man and

Paula were sentenced to long prison terms. Almost five

years later, the Illinois state courts and the federal courts

are still dealing with these convictions. Because of Paula’s

perjury, one man escaped prosecution altogether.

In the early hours of May 11, 1978, a young man was

abducted at gunpoint from a Homewood gasoline sta-

—

tion where he was employed and which was robbed and

looted. His fiancee, visiting him at his job, was also

abducted. The two voung people were taken some five

miles away to an abandoned apartment, part of a housing

complex where Paula and her family and Dennis Williams

and his family lived as close neighbors. In the aban-

donei apartment, while Paula held a lighter for the

men to see, the young woman was raped by Williams,

Rainge, Adams, and Jimmerson; Williams then shot the

young woman to death. The young man was next taken

to a nearby field, with Paula in attendance. Williams

shot the voung man twice in the head and handed his

gun to Rainge who shot the young man in the back.

Williams and Paula went to a creek close at hand where

Williams threw away the gun which had been used.

Williams at this point told Paula not to tell the police

what she had seen or he would kill her and her family.

The bodies of the victims were found on Friday, May

12. Investigation led first to Williams and Jimmerson

who were arrested near the place of the murders and

taken to Homewood police station for questioning. In

the evening of May 12 Adams and Rainge were also

questioned at the police station. They and Jimmerson

were released on the same evening, to be rearrested

a few days later. Williams was never released.

2

As to Paula. she was not subject to the death penalty

under Illinois law because she was not 18 years old when

the murders were committed. Ill. Rev. Stat, ch. 38,

§ 9-1(b). Williams, Rainge, Adams, and Jimmerson were

each subject to the death penalty because they were

above the age of 18 when the murders were committed.

3.

Paula, her mother, her twin sister, and five younger

brothers and sisters lived at 1525 Hammond Lane in the

housing complex already mentioned. Paula not only had

=e

known Williams and his family for some time, but had

also known the other three men who were shown by the

evidence to have committed the crimes.

Paula and her twin sister were born June 27, 1960, and

were the only children of Mrs. Gray by a Mr. Love. As

recited in the presentence report: “The defendant, her

sister, and the other children were raised by their

mother. The mother has been on Public Aid.” (Record,

Volume I, p. C 62). The affidavit of Paula, made to

obtain assigned counsel after her sentence in February,

1979, recites that she then had no money and no other

property of any description. It is evident from the rec-

ord that Paula and her family were, and for some

time had been, indigent.

The record contains a report on Paula from the Cook

County Office of Special Education dated September 29,

1969. This gives her Wechsler Intelligence Quotient (IQ)

as 65 verbal, 57 performance, 57 full. The report states

that Paula has “limited intellectual capacities in really

all spheres of function [and] continues to be in need of

and to remain eligible for EMH classroom placement.”

(EMH is understood to be an abbreviation for “Educable

Mentally Handicapped”). A similar report in the record,

dated June 12, 1974, shows an IQ of, 69 verbal, 67 per-

formance, and 64 full, with continued EMH eclassifica-

tion. These figures classify Paula as mentally retarded

(Stedman’s Medical Dictionary 1224 (5th unabr. law. ed.

(1982)).

4.

On Saturday, May 13, Officer Pastirik and other offi-

cers went to 1525 Hammond Lane. They spoke to Paula

for the first time. She was there with younger children,

but neither her mother nor twin sister Paulette was at

home. Pastirik told Paula that they were looking for a

pair of woman’s boots; she consented to a search and

in a closet the officers found a pair of boots which

Paula said belonged to her sister Paulette. They told

— “sn

Paula they were taking the boots, but when her mother

returned, to ask her mother to telephone them. Paula

said the Grays had no telephone. The officers then said

that if her mother had any question about the boots

or anything else to have her come to the police sta-

tion.

5.

At about 7:30 in the evening of May 13, Paula, her

mother, Paulette, and younger brothers and sisters, came

to the police station by their own chosen transportation;

no police officer brought them.

Two officers spoke to Paula in an office at the station.

Although she was not in custody, one officer explained

to Paula her constitutional rights, reading from a ecard for

the purpose. She indicated (“made some vague state-

ments”) that she would talk to them. (T 1054; “T” refer-

ences are to pages of the stenographic transcript of the

trial, which transcript includes also the suppression hear-

ing which occurred during the trial). Paula “seemed

seared” (T 1055). The officers asked her about this and

she told them that “she was afraid of Dennis Williams”

(T 1055-56).

The officers then left Panla, went to her mother and

told her that Paula had information about the crimes but

seemed frightened. The mother asked to see Paula. The

officers took her to the office and left her alone with

Paula. Some minutes later the officers went back to them

and “Mrs. Gray said that Paula would cooperate” (T

1058). Mrs. Gray stayed with her and “kept saying [to

Paula] to cooperate with the police” (T 1059). The

officers asked who was there when the crimes were

committed and Paula gave them the names of Williams,

Adams, and Rainge; later she gave them the name of

Jimmerson.

Meanwhile. Officer Pastirik had been talking to Paulette

in ‘another office. After a discussion, Paulette told the of-

ficer that Paula did know about the crimes, that Paula

=

was present when they took place, and that Paula had

told her (Paulette) about them on Thursday morning,

May 11, about eleven o’clock, some seven or eight hours

after they had occurred.

Pastirik then went with Paulette to the office where

Paula and her mother were with the other two officers,

who left. Pastirik, Paula, her mother, and Paulette re-

mained. Paulette explained that she had told Pastirik

“what happened, who shot them. I told him everything”

(T 1219). She urged Paula: “for Mom, for everybody tell

them everything” (T 1219). Then Paula told Pastirik

“everything”; ‘‘Paula ran down the entire incident to me

at that time” (T 1219). The information Paula told

Pastirik was to become her testimony before a grand

jury a few days later on May 16.

Mrs. Gray, the mother, confirmed that at the police sta-

tion on May 13 she had told Paula “not to worry and just

tell the police the truth” (T 1177). Paula herself admit-

ted that her mother had told her “to trust the police and

to tell them the truth” (T 978, 979).

About midnight May 13-14, Paula and three police of-

ficers went to the scene of the crimes. They looked at

the apartment where the young woman had been raped

and killed and Paula pointed out where the victim had

lain. Paula showed them another empty apartment where

she had been when she saw the arrival of Williams and

others with the victims. Paula walked with the officers

to the creek near where the voung man was shot and

Paula pointed out where Williams had thrown the gun

into the water. They then returned to the police station.

While the officers were with Paula on the trip to the

seene, she deseribed the crimes to them. As to the dis-

posal of the gun, one of the officers testified to what she

said: “She explained that Dennis Williams took her to the

creek to throw the gun in. Dennis held her by the hand

real tight and made her go to the creek” (T 1085).

—

In the early hours of Sunday, May 14, a State’s Attor-

ney, DiBenedetto, arrived at the police station. About

3:00 a.m. he talked to Paula, her mother, and Pastirik

in an office. Paula described the crimes to DiBenedetto

ani (again) to Pastirik, after which they left Paula

and her mother.. At about 7:30 in the morning of May

14, Sala (a police officer) drove Paula, her mother, and

DiBenedetto to the Gray apartment in East Chicago

Heights. They went into the nearby apartment where

the young woman was killed but Paula seemed tired

and the officers suggested that she and her mother go

to their home and sleep, which they did.

6.

Paula and the Gray family had no further contact with

the police investigators until late Monday afternoon, May

15, when Paula met with State’s Attorney Johnson,

State’s Attorney Hardiman (a woman), and police inves-

tigators. Johnson was the senior and the coordinator.

Paula appeared frightened and said that “she was afraid

for the safety of herself and her family” (T 1158). The

State’s Attorneys told her that their office could protect

her and her family and could relocate them. They told

her of her rights, including the right to counsel and

that if she could not afford a lawyer, they could get

one for her at the County’s expense. They told her that

she appeared herself to be involved in the crimes. Paula

then told again how the crimes took place and who

committed them. When she had finished, Johnson told

her that he believed, from what she had said, that

she was in jeopardy in the community where she lived

from relatives of Williams, Jimmerson, Rainge, and

Adams (all of whom by then were in custody). Johnson

suggested that the State ‘‘put her up for the night’’

and thus “isolate her from that community” (T 1261).

Johnson explained that he expected to have time the

next morning before a grand jury and that he wanted

Paula to repeat before the grand jury what she had

told him about the crimes. Paula agreed that perhaps it

=

would be best for her not to go back into the community

at that time and to be put up overnight by the State.

This was done, and it was arranged for her to stay the

night of May 15 at the Holiday Inn at Harvey, a female

officer “staying with and protecting” her (T 1262).

So far as the record shows, it was at this time (May

15) that the Gray family was first in touch with Archie

B. Weston, the lawyer representing Williams, Rainge, and

Jimmerson. This came out when Mrs. Gray was testify-

ing (called by the State) at a suppression hearing during

the trial. Under cross-examination by Weston, Mrs. Gray

testified that on May 15, evidently in the early evening,

she did not know where Paula had been taken. Weston

asked Mrs. Gray when She learned where Paula was stay-

ing; her reply was: “That’s when I got in touch with

you” (T 1191). Weston dropped the subject at once.

The State then questioned Mrs. Gray about her call to

Weston. She would not say whether she knew Weston

but said she had “heard quite a bit about him”, that

somebody had given her Weston’s phone number, but

that she couldn’t remember who did so (T 1194), She

further testifred that “Mr. Weston had made some phone

calls and that’s how we found out about Paula” (T 1195).

While the record does not make it certain, it seems

reasonably clear that Weston was already on May 15

representing Williams, Rainge and Jimmerson as their

attorney. Paula’s mother on or before May 15 had been

given Weston’s phone number and was in touch with him.

Weston had known what phone calls to make on May 15

to find out the motel where the State was keeping Paula.

It seems evident that if Mrs. Gray did not already know

Weston by Monday evening, Mav 15, she had indeed

“heard quite a bit about him”. She had been at her apart-

ment out of touch with the police, since Sunday morn-

ing, May 14. The relatives of Williams were close by and

they were keenly interested in Paula, the only eyewitness

to the crimes except for the males who as principals com-

mitted them. If anybody gave Mrs. Gray the phone

— % —

number of Weston, it must have been one of the relatives

of Williams.

Police officers drove Mrs. Gray on the evening of May

15 to the Holiday Inn at Harvey and, after a visit with

Paula, drove her home.

7

On the next day, Tuesday, May 16, after breakfast, of-

ficers came to the Holiday Inn with Mrs. Gray who said:

“Paula, just tell the truth” (T 1164). They all then went

to the State’s Attorney’s offices and Paula testified in

the same building before the grand jury.

Paula testified under oath to what she had already told

the police and State’s Attorneys several times. In sum-

mary, she testified that she was with Adams in a car

parked near her apartment from the evening of May 10

to the early hours of May 11; that she left him and went

to her apartment: that she heard noise and looked out;

that she saw Williams’ car; that she went to a vacant

house next to hers; that she was trying to hide; that she

saw Williams, Jimmerson, and Rainge and “two people”

(the victims) in the back of Williams’ car; that Williams

saw her, came to her, took her by the hand, told her to

come with him, to follow him; that she did follow him;

that the “two people”, a white man and woman, were

made to go to 1528 Cannon Lane nearby, an abandoned

apartment; that they took the woman upstairs; that

Rainge stayed with the man; that Williams handed Paula

a lighter and told her to light it and hold it; that she did

so; that the three men already named plus Adams (who

had reappeared) then raped the victim twice each (unce

for Adams); that Williams then shot the vietim twice in

the head; that Williams took Paula’s hand and told them

all to go downstairs; that Williams, Rainge, and she then

went with the man near the creek, with Williams still

holding Paula by the hand; that near the creek Williams

shot the man twice in the head; that Raimge then shot

him once in the back; that the three then walked to the

creek and Williams threw the gun in the creek at the

~<a

point she had shown the police; and that Williams told

her not to tell the police and that if she did, he would

kill her and her family. Paula further testified that she

had told what happened to her mother, to her twin sister,

to police officers, and to the State’s Attorneys.

8,

After her grand jury testimony, Paula and her mother

talked with Johnson, a senior State’s Attorney, in an of-

fice in the same building. They discussed where Paula

should stay, whether she should return to the communi-

ty or be put up and protected as a witness for the State.

Mrs. Gray and Paula consulted together, Mrs. Gray say-

ing “repeatedly” to Paula “whatever you want” (T 1267).

Paula finally decided and “indicated she wanted to go to

the motel again” (T 1267). Mrs. Gray testified that “T just

told them to take Paula because I didn’t want anything

to happen to Paula” (T 1192). Arrangements were made

for Paula to stay that night; May 16-17, at a different

motel, the Holiday Inn at Hillside, and she did stay there.

The next day, May 17, Paula said she wanted to go back

to her family; the police officers took her to the Gray

apartment, 1525 Hammond Lane, in the housing complex.

Now, on May 17, Paula was back in the community and

away from the protection of the State. It was now possi-

ble that she could be influenced to deny the truth of the

testimony she had given to the grand jury and to the

police officers and to refuse to give any further testimony

which would incriminate the male principals, all but one

of whom were represented by Weston.

9.

It was now arranged for Paula and her family to move

in with the Williamses in their home. The Williams fami-

ly itself did the moving (T 2259). It is not possible from

the record to establish exactly when the Gray family

moved in with the family of Williams, but it was some-

time after Paula testified to the grand jury on May 16

and before the preliminary hearing on June 19, 1978 for

—lla—

the males accused. Paula admitted this as follows

(T 2283) :

Q But it was sometime between the time that you

went home from the Holiday Inn and when you came

to the preliminary hearing with Mr. Weston, isn’t

that correct?

A Yes.

According to the Appellate Court of Illinois in aftirm-

ing the conviction of Paula, she and her family moved in

with the Williams a “few days” after May 17 when she

returned home from the Hillside Motel (408 N.E.2d at

1156).

It is evident from the record that Weston began to have

contacts with Paula at about this time and that he was

concerned with any further testimony by her concerning

Williams, Rainge and Jimmerson. Exactly when Weston

began to represent Paula as her attorney cannot be estab-

lished from the record but the only reasonable conclusion

is that Weston was advising her before the preliminary

hearing on June 19,

10,

The State had arranged for Paula to testify as a witness

for the State to show probable cause at the preliminary

hearing on June 19 against Williams, Rainge, Adams, and

Jimmerson. She came to the courtroom for the hearing

with Weston, counsel to three of the aceused, and had

walked up the steps to the courtroom, hand in hand with

Weston. When she testified for the State, she flatly con-

tradicted what she had told to police officers and to the

grand jury; she swore that she knew nothing about the

crimes committed on May 11 and that she had been forced

by the law enforcement officers to lie. Without Paula’s

supporting testimony, the charges as to Jimmerson were

dismissed for want of probable cause and he was released.

Even without her testimony, the charges were sustained

as to Williams, Rainge, and Adams.

_—

Paula left the court building with Weston.

On July 3, 1978, an information was filed against

Williams, Rainge, and Adams charging them with the

crimes committed by them as principals on May 11, 1978.

On September 1, 1978, an indictment was filed against

Paula for the crimes committed by her as aider and abet-

tor against the two victims on May 11, 1978, and for the

perjury committed on June 19, 1978, at the preliminary

hearing. As was to be expected, Weston, on the day the

indictment was filed, entered his formal appearance as at-

torney for Paula.

It may be noted that. in acting as attorney for Paula,

Weston could expect to receive no compensation from

Paula or her family. The record shows that they were

all indigent, without property, and receiving Public Aid.

Were Weston in prosperous circumstances, it might be

reasonable for him to undertake a publie service. But as

will later be seen, Weston was himself in deep financial

distress at the time. The only reasonable conclusion is that

Weston acted as attorney for Paula primarily, if not en-

tirely, to prevent her testifying against Williams, Rainge,

and Jimmerson who—unlike Paula—faced the death penal-

ty. Whether Weston in fact was paid by Williams or the

others for representing Paula, does not appear of record.

11.

The trial began on September 14, 1978, with Weston

representing Williams, Rainge, and Paula: another lawyer

represented Adams. At the suggestion of the State, the

trial was before two separate juries in the same court-

room, one jury for the charges against Paula, the other

jury for the charges against Williams, Rainge, and Adams.

Some evidence was heard by the jury for Paula. some

by the other jury, and some by both juries. This method

was designed, among other things. to avoid the problem

that the incriminating testimony of Paula to the grand

jury and her incriminating statements to others, while ad-

=

missible against her, were not admissible against the male

defendants (Bruton v. United States, 391 U.S. 123 (1968)).

On September 29, during the presentation of the State’s

case, a motion was filed by Weston on Paula’s behalf to

suppress as evidence all statements, admissions, ete., of

Paula, including her grand jury testimony on May 16.

There were several grounds recited for the motion, such

as failure to give Miranda warnings, coercion, ete. The

motion falsely claimed that she was arrested on May 13.

According to the arrest card in the record and all the

other evidence, she was arrested on August 31, 1978.

The motion to suppress was heard, without the jury,

on October 4. As indicative of the testimony Paula gave

about police coercion of her to lie to the grand jury, the

following may be noted (T 1025-26, emphasis supplied) :

Q And, Paula, down there at the Grand Jury how

was it that they made you lie to the Grand Jury?

What did they do to you and who did it?

A Look, they forced me to tell a lie.

Q Who did?

A I know what I'm talking about. P.J. and all the

rest of them and him too.

Q P.J. wasn’t in that Grand Jury room with you,

was he?

A They were standing outside of the Grand Jury.

Q How did he make you tell a lie that day down

ai the Grand Jury?

[Colloquy and objection overruled]

Mr. ArtHur: Would you repeat the question.

(Record read by reporter)

Tue Witness: They was trying to be nice to me

and everything and all that. I don’t take no niceness

from no cops because I don’t like them.

At the conclusion of the hearing, the motion to suppress

was denied from the Bench. The trial judge found, among

— l4a —

other things, that Paula was “adequately and properly ad-

vised and warned” under the Miranda ruling; that Paula

was “not under arrest”; that “no force was exercised, no

promises; no threats, no harm was done’; and that she

made her statements, including her testimony to the

grand jury, “voluntarily” (T 1311-14).

The trial resumed. The State completed its case in chief

on October 16 (T 2136). The State then dismissed ten

counts against Paula, leaving against her five counts

charging murder, one count charging rape, and one count

charging perjury.

The defense for Paula Gray was presented on October

18. An investigative officer, called by Adams, testified ap-

parently before both juries. Then Paula testified before

the jury in her case. After her testimony, Weston rested

her case (T 2308).

The State called a rebuttal witness on October 19 and

rested its case. There were no further defense witnesses.

Summations and the instructions of the Court were

given on October 20. The jury returned, on the same day,

written verdicts of guilty against Paula Gray on the seven

counts of murder, rape, and perjury.

Sentence was imposed on Paula on January 22, 1979.

The sentence was 50 years imprisonment for the murders

and for rape and 10 years for the perjury, all sentences

to run concurrently. The trial judge found that the per-

jury was aggravated by a false claim that her original

and truthful account of what happened was a lie forced

on her by the law enforcement officers.

At the sentencing of Paula, Weston represented that

she was indigent and provided a statement showing finan-

cial destitution. The Court appointed the Public Defender

to perfect her appeal.

_ “on

12.

At the close of the trial, the jury hearing the case

against Williams, Rainge and Adams returned written

verdicts of guilty on all counts submitted.

The State advised the Court that it would ask the death

penalty on the murder counts against the three convicted

male defendants.

Adams waived a jury for the separate sentencing pro-

ceeding. Ill. Rev. Stat., ch. 38, § 9-1(d)(3). Very long

prison terms were imposed on Adams.

Williams and Rainge asked for a jury for the death

sentence proceedings and that the jury be different from

that at the trial. Ill. Rev. Stat., ch. 38, § 9-1(d).

The sentencing jury agreed unanimously that there

were no mitigating factors to preclude the death penalty

for Williams and Rainge and unanimously concluded that

Williams should be sentenced to death. The jury could

not agree unanimously on the death penalty for Rainge.

The Court sentenced Rainge to life imprisonment for

murder and to long prison terms on the other counts.

13.

On August 8, 1980, the Appellate Court of Illinois, First

District, Fifth Division, affirmed the convictions and

sentences of Paula. 408 N.E.2d 1150.

Appointed counsel, replacing Weston, argued on appeal

that if Paula’s statements and grand jury testimony are

assumed to be truthful, whatever she did was forced by

Williams and that, without any request, an instruction

should have been given on the affirmative defense of com-

pulsion. The Court found that there was not sufficient

evidence presented for Paula to support the defense of

compulsion or to justify an instruction on the subject.

Appointed counsel also argued that there was a viola-

tion of Paula’s constitutional right to conflict-free coun-

sel because Weston had an actual conflict of interest in

— l6a —

representing Paula and also Williams and Rainge. The

Court found that this argument required an assumption

that Paula’s “grand jury testimony was the truth and was

known to be so by attorney Weston”. 408 N.E.2d at 1157

The Court refused to make the assumption and found that

there was “no proof of actual conflict”. 408 N.E.2d at 1157

It may be noted that the conviction of Paula of perjury

had established that her grand jury testimony was the

truth.

On December 2, 1980, leave to appeal was denied by

the Supreme Court of Illinois. 81 Tll.2d 604.

On March 30, 1981, certiorari was denied by the

Supreme Court of the United States. 450 U.S. 1032.

On August 11, 1981, with the Public Defender continuing

as her counsel, the petition of Paula for a writ of habeas

corpus—the petition now before us—was filed in the Dis-

trict Court.

14.

Williams prosecuted a direct appeal to the Supreme

Court of Illinois, to which he was entitled as of right be-

cause he was under sentence of death. Ill. Const. art. VI,

) 4. The Public Defender had been appointed to repre-

sent him.

On April 16, 1982, the Supreme Court of Illinois filed

an opinion and decision affirming the judgment of convic-

tion and sentence of death imposed on Williams. One

justice dissented from the affirmation of the death sen-

tence and one justice dissented from the affirmation of

conviction. For reasons which will appear, this opinion

was never published, but we have been furnished a copy

by the Clerk of the Court.

One of the arguments mde for Williams was that he

did not have effective assistance of counsel and that the

loyalty of Weston was divided by a conflict of interest

between Williams and Paula. The Court rejected this

argument on the ground that, after she changed her grand

— 17a—

jury testimony at the preliminary hearing, any conflict

which might have existed “disappeared” and that after

the preliminary hearing the positions taken by Williams

and Paula were “totally consistent”. The Court pointed

out a possible benefit to Williams from the dual repre-

sentation by Weston of Paula, in that “had Gray been

represented by other counsel, she might well have de-

fended on grounds of coercion and become a witness

against Williams”.

On May 7, 1982, Williams filed a petition for a rehear-

ing.

15.

While the petition of Williams for a rehearing was

pending before the Supreme Court of Illinois, oral argu-

ment took place before that Court in a disbarment pro-

ceeding against Weston. The proceeding involved mis-

conduct by Weston in the handling of the estate of a

client, including conversion of funds. There had been a

judgment against Weston and apparently a sheriff’s sale

of his home.

The information in the disbarment proceeding was new

to the Supreme Court of Illinois, which caused the record

to be sent to counsel on the Williams appeal and invited

suggestions whether the disbarment proceedings were

relevant to the Williams appeal. Thereafter, the Court

granted the Williams petition for a rehearing.

16.

On June 7, 1982, the Appellate Court of Illinois, First

District, First Division, filed an opinion affirming the con-

victions of Rainge and Adams. This opinion was later

“revised” and it was never published as filed. We have

not been able to obtain a copy of the opinion from the

Clark of the Court.

Rainge and Adams moved for a rehearing on their

appeals, the disposition of which was contained in the

June 7, 1982 opinion.

_

17.

On May 6, 1982, the District Court, as earlier noted,

had denied the motion of the respondent custodian to dis-

miss the petition of Paula for a writ of habeas corpus.

On October 18, 1982, the District Court granted the mo-

tion of the respondent custodian and dismissed the peti-

tion of Paula for a writ of habeas corpus, thus changing

the earlier decision.

18.

On October 22, 1982, the Supreme Court of Illinois filed

an opinion in the disbarment proceeding against Weston;

it found the charges of misconduct amply proved. A last-

ditch motion by Weston to strike his name from the roll

of attorneys was denied, primarily because of the “serious

nature of the unprofessional conduct involved”. The Su-

preme Court ordered Weston disbarred. 442 N.E.2d 236.

19.

On November 18, 1982, the Supreme Court of Illinois

filed a second opinion on the appeal by Williams. 444

N.12.2d 136. The Court continued to find the evidence suf-

ficient to prove Williams guilty beyond a _ reasonable

doubt. But the Court did not affirm the conviction; in-

stead the Court reversed and remanded to the Circuit

Court for a new trial. The Court first explained:

[F ]undamental fairness requires us to examine the

additional information now before us concerning coun-

sel’s misconduct and the events occurring during the

same period that he represented three defendants in

a capital case to determine whether it has any bear-

ing on the quality of that representation. 444 N.E.2d

at 138.

— 19a —

After the examination indicated, the Court found that:

[Bjecause of the newly acquired information concern-

ing Williams’ counsel, which we have concluded may

well have had an effect on counsel’s ability to repre-

sent his client in the trial of this capital case, we can

no longer say, with any degree of assurance, that

Williams received the effective assistance of counsel

guaranteed by the Constitution. 444 N.E.2d at 142.

The Court concluded:

We believe, however, considering the unique cireum-

stances and sequence of events in this capital case,

which will rarely, if ever, be duplicated, that the in-

terests of justice require that Dennis Williams be

granted a new trial. 444 N.E.2d at 143.

20.

On the same day, November 18, 1982, on which the

Supreme Court of Illinois filed its opinion reversing the

conviction of Williams, counsel for Paula filed a motion,

on the basis of the decision as to Williams, for leave to

file a motion for a supervisory order granting Paula a

new trial or alternatively to reconsider Paula’s petition

for leave to appeal to the Supreme Court of Illinois.

On November 24, 1982, the Supreme Court of Illinois

denied Paula’s motion “without prejudice to petitioner to

file a petition for post-conviction relief in the trial court”.

21.

On February 22, 1983, on the appeals of Rainge and

Adams, the Appellate Court of Illinois, First District,

First Division, filed “the revised opinion of the court upon

consideration of defendants’ petition for rehearing”. 445

N.E.2d 535, 537. The decision was different from that in

the opinion filed June 7, 1982. The judgments of convic-

tion of Rainge were vacated and the cause remanded for

— Ha —

a new trial. The judgments of conviction of Adams were

affirmed.

As to Adams, he could not rely on the argument of in-

effective assistance of counsel or conflict of interest from

multiple representation. It was this argument that had

persuaded the Supreme Court of Illinois to order a new

trial for Williams; but Adams had separate counsel who

represented Adams alone.

As to Rainge, however, the situation was substantially

the same as that of Williams. Weston had represented

them both. The Court concluded that the decision of the

Supreme Court of Illinois in its second opinion concern-

ing Williams (“Williams II’) mandated a new trial for

Rainge as well. The Court stated its conclusion (445 N.E.

2d at 547):

We are of the opinion that the similar interests of

Williams and Rainge and the similar issue raised on

the same record require that defendant Rainge be

granted a new trial. As in Williams II, we base our

decision upon “the unique circumstances and se-

quence of events in this capital case which will rare-

ly, if ever, be duplicated.”

22.

We have recounted the history of the prosecutions in

some detail so as to explain how the present state of af-

fairs has come about. Five persons are shown by the evi-

dence to have done the rape and killing on May 11, 1978.

After the passage of more than five years, the convic-

tion of only one of these (Adams) appears final; one (Jim-

merson) has escaped even a trial; two (Williams and

Rainge) must be retried; and the fifth—the least culpable,

except for her perjury—is the appellant now before us.

23.

The record establishes that an actual conflict of interest

existed between appellant Paula and her co-defendant

— 2la—

Dennis Williams (for simplicity we limit our discussion to

Williams) and that they were both represented by the

same attorney. This was a violation of Paula’s constitu-

tional right to the assistance of counsel and entitles her

to a new trial. “Where a constitutional right to counsel

exists, our Sixth Amendment cases hold that there is a

correlative right to representation that is free from con-

flicts of interest”. Wood vy. Georgia, 450 U.S. 261, 271

(1981).

While Paula was not indicted until September 1, 1978,

the record leads us to conclude that Weston was advis-

ing Paula from a time after her grand jury testimony on

May 16, 1978, and before her appearance with Weston,

although to be a state’s witness, at the preliminary hear-

ing on June 19, 1978. It is not significant on this appeal

as a matter of law whether Weston acted as attorney for

Paula before her indictment and trial, but is is significant

as a matter of fact because it shows the genesis of

Weston’s involvement with Paula and the results of that

involvement.

Between May 13 and May 17, 1978, while she was in

close touch with the police officers, kept by them at a

motel for two nights and advised by her mother and twin

sister to cooperate and tell the truth, Paula, as an eye-

witness, made a number of statements and gave sworn

testimony to a grand jury, seriously implicating Williams

in the May 11, 1978, crimes, and implicating herself in

the same crimes.

When she left police protection and returned to the com-

mnunity on May 17, 1978, Paula was a 17 year old, men-

tally retarded girl, in school classes for EMH (educable

mentally handicapped) children, herself and family indi-

gent, without any criminal record, and, as (at most) an

aider and abettor, much less seriously implicated in the

crimes than Williams, a principal. By reason of her age,

Paula was not subject to the death penalty. Moreover,

on her statements and testimony to the grand jury, she

had the defense of coercion by Williams to do whatever

a ee

she did and, if this defense did not prevail, it could have

been urged for her that whatever she did was not suff-

cient to constitute her an aider and abettor.

An independent, conflict-free, competent attorney for

Paula would at this point have carefully considered con-

tinued cooperation with the State as a means of avoid-

ing any prosecution of her; or an immunity agreement

with the State; or a plea bargain with the State; or in

the event prosecution and trial were necessary, a strong

defense of coercion by Williams; or, in the event of con-

viction, a strong plea for leniency based on minimum par-

ticipation. Weston could not, and did not, adopt any of

these options because each of them would have put his

client Williams in jeopardy. “A conflict of interest is pres-

ent whenever one defendant stands to gain significantly

by counsel adducing probative evidence or advancing

plausible arguments that are damaging to the cause of

a codefendant whom counsel is also representing.” Foz-

worth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir. 1975).

The interests of Williams, however, were completely

different from those of Paula. Williams was over 21, male,

had a criminal record which included guilty pleas in 1976

to two felonies (theft and arson), and was deeply impli-

cated in the crimes, there being an evewitness (other than

Paula) who could (and did) identify Williams as one of

those active in the area when the crimes were commit-

ted and where the bodies were found. The same witness

could (and did) identify the automobile of Williams as one

of those in the area of the crimes when they were com-

mitted. Williams was subject to the death penalty.

The interests of Williams were to prevent Paula from

continuing to cooperate with the State, to influence her

to recant her grand jury testimony against him, and to

influence her to forego any defense of coercion by Wil-

liams.

The interests of Williams were successfully advanced by

his family and his attorney. Soon after May 17 Paula and

— Ba —

her family moved in with the family of Williams, and

Weston, already in contact with Paula’s family, undoubted-

ly began advising her. So it was that on June 19 at the

preliminary hearing, Paula—although a witness for the

State—appeared with Weston and changed entirely her

grand jury testimony. She denied that she knew anything

about the May 11 crimes.

As a result of her change at the preliminary hearing,

Paula was then indicted, Weston appeared formally for

her, and the trial followed with Weston representing

Paula, as well as Williams and Rainge.

We believe that the actual conflict between Paula and

Williams clearly appears on the face of the record.

The Appellate Court of Illinois, in affirming Paula’s con-

viction, rejected any argument that there was a conflict

of interest between Paula and Williams, primarily for the

reason, mistaken we believe, that their defenses at trial

did not conflict (408 N.F.2d at 1157) because both denied

having hal anything to do with the crimes. The test for

conflict between defendants is not whether the defenses

actually chosen by them are consistent but whether in

making the choice of defenses the interests of the defen-

dants were in conflict. As expressed in a discussion of

this point by the Fifth Cireuit: “{T]he conflict occurred

not in presenting the defense chosen by appointed coun-

sel, but in selecting defenses and strategies in the first

place.” Forworth v. Wainwright, supra, at 1079.

The Appellate Court also felt that to find Weston dis-

qualified, it had to be assumed that Paula’s grand jury

testimony was true and that Weston knew it. We believe

this reasoning also was mistaken. Weston’s disqualifica-

tion did not depend on the truth of Paula’s grand jury

testimony but on whether Weston could make an inde-

pendent conflict-free judgment on that and other points.

As long as Weston represented Williams he was not

conflict-free and could not make an independent judgment.

This appears to have been recognized by the Supreme

=

Court of Illinois in its unpublished opinion filed April 16,

1982, when, in dealing with Williams’ argument based on

the representation by Weston of him and Paula, the Court

said:

“. . . had Gray been represented by other counsel

she might well have defended on grounds of coercion

and become a witness against Williams.”

If, because he was represented by Archie Weston, “the

interests of justice require that Dennis Williams be

granted a new trial”, as ruled by the Supreme Court of

Illinois (444 N.E.2d at 443), and if Rainge has been

granted a new trial, as ruled by the Appellate Court of

Illinois (445 N.E.2d 535), we are satisfied that Paula

Gray, represented to her prejudice by the same Weston,

should also be given a new trial.

24.

The District Court did not reach the merits of the mat-

ter, ruling that Paula has not exhausted available state

remedies under post-conviction relief procedure. Ill. Rev.

Stat. ch. 38, §§122-1 and following.

The District Court recognized that claims which were

raised (as was the conflict of interest claim) on direct ap-

peal will not be reviewed in post-conviction proceedings

in Illinois unless they are based on matters outside the

record.

The District Court recognized that the petition and sup-

porting memorandum do not rely on matters outside the

trial record. The memorandum for petitioner asserts that

the conflicting interests of Paula and Williams were “plain

upon the trial record”.

Nevertheless, the District Court held that the petition

raised unexhausted claims because (1) suggestions of im-

proprieties “truly deserve a hearing”; (2) there should be

a hearing in which counsel can defend himself against

=

serious charges; and (3) the state courts should be given

the first chance to conduct such a hearing.

We believe that under the circumstances here present—

especially the grant of new trials by the Illinois Courts

to Williams and Rainge after the decision of the District

Court in the case at bar—these reasons are not sufficient

to require Paula to attempt to secure post-conviction relief

in the Illinois courts. In making this determination, we

have in mind the considerable lapse of time since the

crimes were committed and since the date of the convic-

tion. The interests of justice will be better served if the

new trial can be conducted with reasonable promptness.

The order of the District Court is reversed and the

cause remanded to that Court with directions to issue an

order to respondent to release Paula Gray unless the

State elects to retry her within such reasonable time as

may be fixed by the District Court.

_ Sa —

APPENDIX B

Order of the United States Court of Appeals for the

Seventh Circuit Denying a Rehearing.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

December 22, 1983

Before

Hon. HARLINGTON WOOD, JR., Cireuit Judge

Hon. RICHARD D. CUDAHY, Cireuit Judge

Hon. INZER B. WYATT, Senior District Judge*

No. 82-2940

UNITED STATES OF AMERICA ex rel.

PAULA GRAY,

Petitioner-Appellant,

vs.

DIRECTOR, DEPARTMENT OF CORRECTIONS,

STATE OF ILLINOIS,

Respondent-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois Eastern Division.

No. 81 C 4545

Susan Gerzenpanner, Judge.

* The Honorable Inzer B. Wyatt, Senior District Judge

for the Southern District of New York, is sitting by des-

ignation.

—%a—

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing in banc filed in the above-en-

titled cause by counsel for the respondent-appellee, no

judge in active service has requested a vote thereon, and

all of the judges on the original panel have voted to deny

a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for re-

hearing be, and the same is hereby, DENIED.