Petition for Writ of Certiorari — Lane v. Reed

In Tue SEP! OL, JR,

Supreme Court of the Units States

Oocroser Term, 1985

;

oi

‘

MICHAEL LANE, Director of the Illinois

Department of Corrections, and JAMES THLERET,

Warden, Menard Correctional Center,

Petitioners,

Vs.

FRED REED,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

NEIL F. HARTIGAN

Attorney General, State of Illinois |

ROMA J. STEWART

Solicitor General, State of Dlinois

MARK L. ROTERT*

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Dlinois 60601

(312) 917-2570

Counsel for Petitioners

Kenneto A. FEprnets

Assistant Attorney General

Of Counsel * Counsel of Record

a rr

Printed by Authority of the State of Illinois (P.O. 33027—650—10-30-85)

i

QUESTIONS PRESENTED FOR REVIEW

1) Whether the United States Court of Appeals for the

Seventh Circuit erred in granting a writ of habeas cor-

pus for the murder conviction of Beverly Truitt where

the state trial court properly instructed the jury as to

this offense but improperly instructed the jury as to the

murder of Michael Robbins.

2) Whether the United States Court of Appeals for the

Seventh Circuit erred in granting a writ of habeas cor-

pus for the murder of Beverly Truitt where respondent

failed to allege a due process violation as to this convic-

tion in state court thus precluding habeas corpus review

by the federal courts pursuant to Wainwright v. Sykes,

433 U.S. 72 (1979).

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..

TABLE OF AUTHORITIES .................

OPINIONS BELOW ..........cccccccccseccees

SOIT nce sscccscccccccsvescaceces

STATEMENT OF THE CASE .......... -

REASONS FOR GRANTING CERTIORARI:

I.

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT ERRED IN

GRANTING A WRIT OF HABEAS CORPUS FOR

THE MURDER CONVICTION OF BEVERLY

TRUITT WHERE THE STATE TRIAL COURT

PROPERLY INSTRUCTED THE JURY AS TO

THIS OFFENSE BUT IMPROPERLY IN-

STRUCTED THE JURY AS TO THE MURDER

OF MICHAEL ROBBINS ...........eeeeees

Il.

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT ERRED IN

GRANTING A WRIT OF HABEAS CORPU* FOR

THE MURDER OF BEVERLY TRUITT WHERE

RESPONDENT FAILED TO ALLEGE A DUE

PROCESS VIOLATION AS TO THIS CONVIC-

TION IN STATE COURT THUS PRECLUDING

HABEAS REVIEW BY THE FEDERAL COURTS

PURSUANT TO WAINWRIGHT v. SYKES, 433

is Sg) | SPererePrererrerriri rity tyre

oi oe Fi i | MPPCIeTYTETreriT re re eS

APPENDIX

A. Decision of the United States Court of Appeals

for the Seventh Circuit, dated April 10, 1985 .. la

B. Order of the United States District Court for

the Northern District of Illinois, dated October

eee oe a ue coe R eee 6 l4a

C. Order of the United States Court of Appeals

for the Seventh Circuit Denying Rehearing,

fe Ee errr rere 23a

TABLE OF AUTHORITIES

PAGE

Engle v. Isaac, 456 U.S. 107 (1982) ........... 8

People v. Reed, 104 Ill. App. 3d 331, 482 N.E.2d

es ke cases ses 2

People v. Robinson, 104 Ill. App. 3d 331, 482

N.E.2d 979 (Ist Dist. 1982) ............... 10

United States v. Brown, 692 F.2d 345 (5th Cir.

FE on 7

United States v. DeLuca, 692 F.2d 1277 (9th Cir.

ee eck check es 7

United States v. Leon, 679 F.2d 534 (5th Cir.

REE S peau i ne unetseenedskansess 6

United States ex rel. Reed v. Lane, 759 F.2d 618

a ri cae, cae laue' oiess 1, 3, 5,6

United States ex rel. Reed v. Lane, 571 F.Supp.

en a on oko gtceescecs 1,3

Wainwright v. Sykes, 433 U.S. 72 (1979) ...... 8, 10

In THE

Supreme Court of the Anited States

Octoser Term, 1985

MICHAEL LANE, Director of the Illinois

Department of Corrections, and JAMES THIERET,

Warden, Menard Correctional Center,

Petitioners,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

The decision of the United States Court of Appeals for

the Seventh Circuit is reported at United States ex rel.

Reed v. Lane, 759 F.2d 618 (7th Cir. 1985). A copy of the

decision is attached to this petition as Appendix A. The

order of the United States District Court for the North-

ern District of Illinois, Eastern Division is reported at

United States ex rel. Reed v. Lane, 571 F.Supp. 500 (N.D.

Ill. 1983). A copy of the order is attached to this petition

as Appendix B.

~ S

JURISDICTION

The court of-appeals on April 10, 1985, affirmed the dis-

trict court’s grant of respondent’s application for a writ

of habeas corpus as to the murder convictions, but stayed

its issuance pending respondent’s serving his sentence on

the offense of armed robbery. Petitioner’s timely filed

petition for rehearing and suggestion for rehearing en

bane was denied on August 1, 1985. (Appendix C) The

jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

f STATEMENT OF THE CASE

}

“AL State Court Proceedings

Respondent, Fred Reed, was found guilty after a jury

trial in the Circuit Court of Cook County, Illinois of the

murders of Michael Robbins and Beverly Truitt and the

armed robbery of Beverly Truitt. The circuit court sen-

tenced respondent to concurrent terms of imprisonment

of not less than 50 years nor more than 100 years for

each murder and not less than 20 years nor more than

30 years for armed robbery.

From a judgment of conviction, respondent took a direct

appeal to the Illinois Appellate Court, First District. The

appellate court affirmed the judgments of conviction. Peo-

ple v. Reed, 104 Ili. App. 3d 331, 482 N.E.2d 979 (1st Dist.

1982).

ale

B. Federal Court Proceedings

On June 2, 1983, respondent filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. §2254 in the

United States District Court for the Northern District of

Illinois, Eastern Division. On July 14, 1983, petitioners

filed an answer to the petition for writ of habeas corpus

with supporting memorandum of law. The district court

on October 3, 1983, granted the petition for writ of habeas

corpus and held that petitioners “are ordered to discharge

Reed unless the State of Illinois gives him a new trial

within a reasonable time.” United States ex rel. Reed v.

Lane, 571 F.Supp. 530, 534 (N.D. Ill. 1983).

Judgment was entered pursuant to Rule 58 of the Fed-

eral Rules of Civil Procedure on October 4, 1983. The peti-

tioners on October 11, 1983, filed a motion to alter or

amend judgment pursuant to Rules 52(b} and 5X%e) of the

Federal Rules of Civil Procedure. The motion was denied

by the district court on October 31, 1983. Petitioners filed

a Notice of Appeal on November 4, 1983.

The United States Court of Appeals for the Seventh

Circuit on April 10, 1985, affirmed the district court’s “‘is-

suance of the writ but stay[ed] it pending Reed’s serv-

ing of the sentence on the armed robbery charge and 120

days thereafter (for the State to retry him).” United

States ex rel. Reed v. Lane, 759 F.2d 618 (7th Cir. 1985).

Petitioners filed a Petition for Rehearing and Suggestion

for Rehearing En Banc which was denied by the court

on August 1, 1985.

—4— \

REASONS FOR GRANTING A

WRIT OF CERTIORARI

THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT ERRED IN GRANTING A WRIT OF

HABEAS CORPUS FOR THE MURDER CONVICTION OF

BEVERLY TRUITT WHERE THE STATE TRIAL COURT

PROPERLY INSTRUCTED THE JURY AS T© THIS OF-

FENSE BUT IMPROPERLY INSTRUCTED THi.. ‘URY AS

TO THE MURDER OF MICHAEL ROBBINS.

Lonnie Hall knocked on respondent’s apartment door,

showed him a gun, and told respondent he wanted respon-

dent to assist him to enter Michael Robbins’ apartment.

Subsequently, the respondent and Hall went downstairs

to Robbins’ apartment and the respondent knocked on the

door and identified himself. When Robbins opened the

door, Lonnie Hall forced his way into the apartment and

ordered Robbins to lie on the bed. Hall then told respon-

dent to tie up Robbins and the respondent complied. Hall!

placed a pillow over Robbins’ head and fired two shots.

As Hall and respondent were leaving Robbins’ apartment,

Beverly Truitt, a neighbor from across the hall, opened

her apartment door. Hall pushed her back into her apart-

ment and as respondent waited in the hallway, he heard

two shots. Hall then came out of the apartment with

jewelry. Respondent asked Hall for some of the jewelry

and was given three of four rings, a bracelet, and a neck-

lace. As a result of these facts, respondent was convicted

of the murder of Michael Robbins and the murder and

armed robbery of Beverly Truitt.

The constitutional violation as alleged in the petition for

writ of habeas corpus was based on the state trial court’s

=f

failure to instruct the jury on the defense of compulsion

as to the murder of Robbins. No constitutional challenge

was made as to the convictions for the murder or armed

robbery of Truitt. However, the United States Court of

Appeals for the Seventh Circuit affirmed the district

court’s decision granting habeas corpus relief to respon-

dent for the convictions of the murders of Michael Rob-

bins and Beverly Truitt. The decision of the court to grant

habeas corpus relief for respondent’s conviction for the

murder of Beverly Truitt is contrary to decisions of courts

of appeals from other circuits. Relief in the form of a writ

of habeas corpus which requires the State of Illinois to

release respondent unless he is retried for the murder of

Beverly Truitt is simply not required.

The fundamental flaw in the lower court’s decision is

that the court began its analysis of the issues presented

with an assertion that is factually inaccurate: “At trial

[respondent’s] defense was that he was coerced into par-

ticipating in the crimes.” United States ex rel. Reed v.

Lane, 759 F.2d 618, 620 (7th Cir. 1985). This statement

is erroneous in that respondent never asserted as a

defense in the state trial court that he was compelled to

commit the murder and armed robbery of Beverly Truitt.

Respondent in state court sought to advance the defense

that he was compelled to assist Lonnie Hall only with

respect to the charge of murder for the death of Michael

Robbins. The defense as to the murder and armed rob-

bery of Beverly Truitt was that respondent was not ac-

countable under Illinois law for Hall’s conduct. This

defense with respect to the murder and armed robbery

of Truitt is made absolutely clear by defense counsel's

argument in support of his motion for a directed verdict

after the close of the State’s case-in-chief:

ilies

Under those circumstances, I don’t believe shat the

State can argue successfully as a matter of law, not

simply as a matter of fact, that Mr. Reed is account-

able in anyway for anything that—that happened to

Miss Truitt in her own apartment... .

(Tr. 495) Moreover, defense counsel’s position during the

jury instruction conference further demonstrates that a

compulsion defense was not sought as to the Truitt

offenses:

Now, if in determining whether or not Mr. Reed

will be convicted of one or both of the homicides, the

Jury is certainly entitled to an instruction for the

second—second murder, that being the death of

Beverly Truitt, then in fact they are entitled to an

instruction as to the compulsion in regards to the

death of Michael Robbins.

(Tr. 568) Insofar as respondent failed to claim that the

jury was not properly instructed as to the murder of

Truitt, habeas corpus relief as to this conviction cannot

be granted. As Judge Coffey so accurately noted in his

dissent from the decision of the lower court, ““Reed’s con-

viction should be reversed only as to the murder of Rob-

bins. Reed only complains that he was denied his com-

pulsion defense as to the murder of Robbins, he asserted

no compulsion defense as to the murder of Truitt.” United

States ex rel. Reed v. Lane, 759 F.2d 618, 625 n.1 (7th

Cir. 1985).

There is a clear consensus that relief in the form of a

retrial is enly necessary on a count of an indictment upon

which the jury was not properly instructed. In United

States v. Leon, 679 F.2d 534 (5th Cir. 1982), defendant

argued that he could not be convicted of count 5 of: the

indictment since the trial judge failed to instruct the jury

as to that count. The court reversed the conviction as to

count 5 and held that the judge must instruct the jury

= os

on all aspects of a case in order for the jury to reach

a fair and proper verdict. Although the court reversed

the conviction on count 5 of the indictment, the court

remanded the case for a new trial on that count atone.

Id. at 541. As to all other counts, the judgment was

affirmed.

Similarly, in United States v. Brown, 692 F.2d 345 (5th

Cir. 1982), defendant was convicted on five counts of a

multicount indictment. On appeal defendant contended

that the trial court committed plain error in failing to in-

struct the jury on each of the essential elements of the

substantive offense in count eight. Although the court ac-

cepted the defendant’s argument, only the conviction on

count eight of the indictment was reversed and remanded

for a new trial. The court affirmed the four remaining

convictions. Jd. at 348.

Finally, in United States v. DeLuca, 692 F.2d 1277 (9th

Cir. 1982), the coi rt found that the trial court had im-

properly instructed the jury on count 1 of the indictment.

The court reversed the conviction on count 1, but affirmed

the convictions on the remaining 19 counts.

Based upon these decisions, the lower court’s decision

which granted respondent relief as to a murder convic-

tion creates a conflict among the circuits and is not in

line with established precedent.

=

Il.

THE UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT ERRED IN GRANTING A WRIT OF

HABEAS CORPUS FOR THE MURDER OF BEVERLY

TRUITT WHERE RESPONDENT FAILED TO ALLEGE A

DUE PROCESS VIOLATION AS TO THIS CONVICTION

IN STATE COURT THUS PRECLUDING HABEAS

REVIEW BY THE FEDERAL COURTS PURSUANT TO

WAINWRIGHT v. SYKES, 433 U.S. 72 (1979).

This Court has limited the availability of federal habeas

corpus relief by holding that “‘contentions of federal law

which were not resolved on the merits in the state pro-

ceeding due to [petitioner’s] failure to raise item there

as required by state procedure”’ precludes the review in

a habeas petition. Wainwright v. Sykes, 433 U.S. 72, 87

(1979). Failing to follow state procedure produces an in-

dependent state ground precluding federal review absent

a showing of cause and prejudice by the petitioner. Post-

Wainwright decisional law emphasizes that the waiver doc-

trine is designed to afford state courts an adequate op-

portunity to rectify any constitutional defects in their

criminal proceedings. Engle v. Isaac, 456 U.S. 107 (1982).

In the instant case not only did respondent fail to allege

a due process violation with respect to the murder con-

viction of Beverly Truitt in the district court, but the

claim was not advanced in the Illinois appellate court on

direct appeal in state court. An examination of the Brief

and Argument filed in the Illinois Appellate Court, First

District, reveals that respondent failed to advance a due

process argument with respect to the murder of Truitt.

Respondent made the following argument in the Illinois

appellate court with respect to the trial court’s failure to

instruct the jury on the defense of compulsion:

sdb

The trial court apparently refused the instruction

because two murders were committed. Ill. Rev. Stat.,

Ch. 38, § 7-11(a) states:

A person is not guilty of an offense, other than an

offense punishable by death, by reason of conduct

which he performs under the compulsion of threat or

menace of the imminent infliction of death or great

bodily harm, if he reasonably believes death or great

bodily harm will be inflicted upon him if he does not

perforrn such conduct.

Thus, the defense of compulsion is avaiiable in all

offenses other than those punishable by death. A

murder punishable by death, under the death penalty

statute in effect at the time of the crime, is one in

which at least one of seven aggravating factors is

found to be present, as set forth in Ill. Rev. Stat.,

Ch. 38, § 9-1(b).

None of the aggravating factors enumerated in

§9-1(b) was present in the murder of Michael Rob-

bins, which is the murder in which Reed claims he

was compelled to assist. Thus, the murder of Michael

Robbins was not an offense punishable by death, and

therefore Reed was entitled te have the jury in-

structed on the defense of compulsion.

(R. 14, Respondents’ Exhibit 1 at 28) (emphasis added).

Indeed, respondent on direct appeal fully recognized the

defense presented at trial by noting: “The defense argued

that the jury might find Reed accountable for the death

of Truitt, and was entitled to an instruction on compul-

sion as to the death of Robbins.” (R. 14, Respondents’

Exhibit 1 at 25) With respondent’s issue thus framed, the

appellate court stated the issue it was to decide:

The second issue raised on appeal is whether the

trial court erred in refusing the compulsion instruc-

tion tendered by the defense. The defendant contends

that the instruction should have been given with

~_— =

regard to the Robbins’ murder because the defen-

dant’s statement, which was admitted into evidence,

disclosed that the defendant participated in that

murder under threat that Lonnie Hall would kill him

if he did not go with Hall to Robbins’ apartment.

People v. Robinson, 104 Ill. App. 3d 331, 337, 482 N.E.2d

979, 984 (Ist Dist. 1982).

Insofar as the compulsion defense argument with respect

to the conviction for the murder of Truitt was not ad-

vanced in state court on direct appeal, it could not have

been advanced in the district court under this Court’s

decision in Wainwright v. Sykes, 433 U.S. 72 (1979). Con-

sequently, the lower court created a claim out of whole

cloth to reach the result of granting habeas corpus relief

with respect to the murder conviction for the death of

Beverly Truitt. Petitioner, consequently requests this

Court to grant the Petition for Writ of Certiorari and

reverse the judgment of the lower court. Summary rever-

sal is most appropriate in this case.

onlinn

CONCLUSION

For the above-advanced reasons, a writ of certiorari

should issue to review the judgment and order of the

United States Court of Appeals for the Seventh Circuit.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA J. STEWART

Solicitor General, State of Illinois

MARK L. ROTERT*

Assistant Attorney Gencral

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Counsel for Petitioners

Kenneth A. Feptnets

Assistant Attorney General

Of Counsel * Counsel of Record

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APPENDIX A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 83-2972

UNITED STATES OF AMERICA ex rel.

FRED REED,

Petitioner- Appellee,

v.

MICHAEL LANE AND JAMES GREER,

Respondents- Appellants.

Appeal from the United States District Court for the

Northern District of Iliinois, Eastern Division.

No. 83 C 3622—Milton I. Shadur, Judge.

ARGUED JUNE 1, 1984—DECIDED APRIL 10, 1985

Before CUMMINGS, Chief Judge, COFFEY, Circuit Judge,

and CAMPBELL, Senior District Judge.*

CAMPBELL, Senior District Judge. The State of Illinois

appeals the District Court’s grant of a Writ of Habeas

Corpus to Fred Reed. The petitioner had been serving two

concurrent prison terms of fifty to one hundred years for

two murders with an additional concurrent term of

twenty to thirty years for armed robbery. The con-

stitutional violation found by the District Court involved

the state trial judge’s failure to give a jury instruction on

the compulsion defense. The trial judge declined to give

the instruction based upon his interpretation of Illinois

statutory law which provided that compulsion is not a

The Honorable William J. Campbell, Senior District Judge of

the Northern District of Illinois, is sitting by designation.

a Pe

defense in a capital case. This ruling was affirmed by the

Appellate Court of Illinois, People v. Reed, 482 N.E.2d 979

(Ill. App. 1982). The District Court, however, held that

under that interpretation, the Illinois statute failed to put

the petitioner on notice as to the requirements of the

criminal law and therefore violated his due process rights.

Based on that analysis, the District Judge granted the

writ requiring Reed’s discharge unless he was properly

retried within 120 days. The state appeals that decision

raising numerous arguments.

At the state court trial the bulk of the testimony

regarding the actual incident came from statements of

Reed. Those statements presented the following scenario.

Michael Robbins, one of the murder victims, became

involved in a heroin trafficking territorial dispute with

another drug pusher named “Big 50”. Since an amicable

resolution was impossible, Big 50 determined that Robbins

would be killed.' Reed, who lived in the same apartment

building as Robbins, had lent him a 32 automatic gun for

protection.? On August 28, 1977, Lonnie Hall entered

Reed’s apartment with a gun and told him he wanted to

use Reed to get into Robbins’ apartment. Hall apparently

believed Robbins would open the door for Reed since he

trusted him. He told Reed if he didn’t cooperate he “would

come up dead.” They went to Robbins’ apartment, Reed

knocked and identified himself, and Robbins opened the

door. Hall then forced his way into the apartment and

ordered Reed to tie up Robbins. Then Hall put a pillow

over Robbins’ head and shot him twice.

‘ This was corroborated by the testimony of Bobbie Taboda, the

manager of the apartment building in which Robbins and Keed

lived. Big 50 told her that she wouldn’t have to worry about

Robbins any more because he would be “taken care of.”

2 This was corroborated by Denise Johns, the sister of the other

murder victim, Beverly Truitt.

—

Hall and Reed then left Robbins’ apartment. As they

did so, Robbins’ girl friend, Beverly Truitt, opened her

door and asked what happened. Hall told Reed to stay in

the hall and then he pushed Truitt back into her apart-

ment. He then shot her twice and returned with a

handful of jewelry. At Reed’s request, Hall gave him some

of the jewelry but told him if he revealed what had

happened he would kill him.

Thereafter, Reed was indicted for two counts of

murder and one count of armed robbery. At trial his

defense was that he was coerced into participating in the

crimes. However, after all the evidence was presented, the

trial judge refused to instruct the jury on the coercion

defense, concluding that under the applicable Illinois

statutes coercion was not a defense in this case. There-

after, the jury found Reed guilty of all three counts.

The Appellate Court of Illinois upheld the trial court’s

decision and presented the reasoning for-it. The com-

pulsion defense is codified in Ill. Rev. Stat. ch. 38, § 7-

ll(a):

A person is not guilty of an offense, other than an

offense punishable with death, by reason of conduct

which he performs under the compulsion of threat or

menace of the imminent infliction of death or great

bodily harm, if he reasonably believes death or great

bodily harm will be inflicted upon him if he does not

perform such conduct.

The court determined that Reed had committed a capital

offense because he had been involved in two murders. This

conclusion was premised on Section 9-1(b)(3) of Illinois’

death penalty statute:

A defendant who at the time of the commission of the

offense has attained the age of 18 or more and who has

been found guilty of murder may be sentenced to

death if: ...

—4g—

3. the defendant has been convicted of murdering

two or more individuals under Subsection (a) of this

Section or under any law of the United States or of

any state which is substantially similar to Subsection

(a) of this Section regardless of whether the deaths

occurred as the result of the same act or of several

related or unrelated acts so long as the deaths were

the result of either an intent to kill mere than one

person or of separate premeditated acts...

The court relied heavily on People v. Gleckler, 411

N.E.2d 849 (Ill. 1980). In that case the defendant had shot

two teenagers in the back of the head with a shotgun

while they kneeled on the side of the road. He presented a

coercion defense at the trial but the judge refused to

instruct the jury as to that defense. This ruling was

upheld by the Illinois Supreme Court. In its opinion the

court analyzed the legislative intent behind the com-

puision defense and the capital crime statutes and con-

cluded that the compulsion defense was not available to

any murder charge. In response to defendant’s argument

that the statutes did not put him on notice that com-

pulsion was not a defense, the court admitted that it was

departing from the precise terms of the statute but

justified its action stating:

The enlargement of the literal meaning of a

criminal statute by a State Court of last resort is

permissible, at least where such an enlargement con-

forms with legislative intent. 411 N.E.2d at 856.

However, realizing the due process ramifications of its

decision, the Supreme Court determined that it could only

implement its decision prospectively. Nonetheless, since

defendant’s double murder presented an aggravating

factor under the death penalty statute, the court deter-

mined that Gleckler had adequate notice that compulsion

was not a defense to his crimes. The court stated,

however:

—fa—

A distinguishable situation would be presented

here on due process grounds if no aggravating factor

under section 9-1(b) were alleged, Jbid.

Following Gleckler, the Appellate Court in People v.

Reed noted that since the defendant was being charged

with two murders, an aggravating factor as defined in

§ 9-1(b)(3) was present. Therefore, it concluded that

each murder was a capital crime and the coercion defense

was unavailable as to each of them.

In ruling on the habeas corpus petition, the District

Judge initially noted the necessary legal fiction that a

person faced with a decision regarding potentially crimi-

nal conduct is aware of the provisions of criminal law.

Thereafter, the District Judge stated:

In terms of that necessary fiction, had Reed

looked at the statute when forced to decide what

action to take in conjunction with Robbins’ murder,

he would have known from the plain statutory lan-

guage the compulsion defense was available to him.

Under that defense Reed could yield to Hall’s death

threat without putting his own life in jeopardy (via a

potential death sentence) by so yielding. That was

the legal matrix in which Reed was entitled to make

his decision about which action to take. What was

surely not obvious from the face of the statute and

then-existing case law was that a later event—Hall’s

gratuitous murder of Truitt—would deprive Reed of

the compulsion defense on the theory that as a whole

two or more murders are punishable by death. [ Foot-

notes deleted. |

Based on this reasoning, the District Judge concluded that

Reed’s due process rights were violated and that the

issuance of the writ was required. Thereafter, the state

moved for clarification to determine whether the court

intended to set aside all three of Reed’s convictions. The

District Judge denied the motion and indicated that he

—fa—

intended the petitioner to be discharged unless he was

granted a retrial as to all three counts. This appeal was

then filed.

Appellant claims that there was insufficient evidence

of compulsion presented by the defendant to justify the

giving of the jury instruction. This was not the rationale

of the trial court nor was it suggested by the Illinois

Appellate Court as an alternative basis for its decision.

Furthermore, the District Judge was not persuaded by

this argument. Under Illinois law compulsion is an

affirmative defense but the defendant need only produce

“some evidence thereon” and then the burden shifts to the

state to disprove the defense beyond a reasonable doubt,

see Gleckler, supra, 411 N.E.2d at 853. Reed’s testimony as

to Hall’s death threat is certainly evidence of compulsion

and Hall’s brandishing of a pistol constitutes a reasonable

basis for fear of death or great bodily harm. This is

further supported by Reed’s awareness that Big 50 had

ordered Robbins’ death. The fact that Reed had lent

Robbins a gun for protection also suggests that he had not

intended to participate in the killing but in fact was

opposed to the idea. Therefore, we conclude that under

Illinois law Robbins produced sufficient evidence of com-

pulsion to warrant a jury instruction.

The appellant’s constitutional arguments are both

based on a misconception of the District Judge’s decision.

It argues that the interpretation of state statutes is

purely within the domain of state courts unless a violation

of fundamental constitutional rights is_ involved.

Furthermore, it claims;

The district court improperly granted petitioner

habeas corpus relief by rejecting the construction

placed on section 7-ll(a) by the Illinois courts.

Appellant’s brief p. 15.

The requirement that criminal statutes must give fair

warning of the conduct proscribed implicates “the first

essential of due process,” see Connally v. General Construc-

—194—

tion Co., 269 U.S. 385, 391 (1926), and is a fundamental

right, see Marks v. United States, 430 U.S. 188, 191 (1977).

More importantly, the District Judge did not invalidate or

set aside the state court’s interpretation of the statute.

He simply ruled that it could not be applied retroactively

to this defend: t’s conduct. This is the proper remedy

and has been previously utilized in Boute v. City of Colum-

bia, 378 U.S. 347 (1964). In that case a South Carolina

criminal statute prohibited “entry on lands of another

after notice prohibiting same.” The petitioners were con-

victed under that statute even though they had no notice

prior to entering the property that their presence was

prohibited. The Supreme Court of South Carolina upheld

the convictions construing the statute to include situ-

ations where a person remained on the premises after

receiving notice to leave. The United States Supreme

Court, however, determined that the convictions were

invalid because they violated the due process clause of the

Constitution. The court relied on the Connally line of cases

although noting that the case before it was somewhat

distinguishable:

It is true that in the Connally and Lanzetta cases,

and in other typical applications of the principle, the

uncertainty as to the statute’s prohibition resulted

from vague or overbroad language in the statute

itself, and the Court concluded that the statute was

“void for vagueness.” The instant case seems dis-

tinguishable, since on its face the language of § 16-

386 of the South Carolina Code was admirably narrow

and precise; ... The thrust of the distinction, how-

ever, is to produce a potentially greater deprivation of

the right to fair notice in this sort of case, where the

claim is that a statute precise on its face has been

unforeseeably and retroactively expanded by judicial

construction, than in the typical “void for vagueness”

situation. 378 U.S. at 351-352.

The remedy applied was to set aside the convictions but

the court specifically noted that the South Carolina Su-

—Sa—

preme Court’s construction of the statute would be valid

prospectively, 378 U.S. at 362. That is the remedy applied

by the District Judge in this case, although here a retrial

was feasible since the situation involved the omission of a

defense rather than the creation of an offense.

Appellants also argue that the state court’s omission

of a compulsion instruction does not rise to a con-

stitutional violation because it did not result in a

fundamental miscarriage of justice, citing, inter alia,

United States ex rel. Peery v. Sielaff, 615 F.2d 402 (7th Cir.

1979). However, the Peery line of cases involve Sixth

Amendment violations which occur when

[T]}he trial judge evaluates or screens the evi-

dence supporting a proposed defense and upon such

evaluation declines to charge on that defense, [as a

result] he dilutes the defendant’s jury trial. by re-

moving the issue from the jury’s consideration,

Strauss v. United States, 376 F.2d 416, 419 (5th Cir.

1967), quoted in Peery, supra, 615 F.2d at 403-404.

The case sub judice does not arise under the Sixth Amend-

ment but rather under the due process clause of the Fifth

Amendment. Therefore, the standard of review utilized

in the Peery line cf cases is not applicable here. Rather,

the relevant standard is whether the jury instructions

accurately reflected the law as it appeared at the time of

the alleged criminal conduct, see Marks v. United States,

supra; Rabe v. Washington, 405 U.S. 313 (1972). There-

fore, the District Court was correct in concluding that the

appropriate time frame for determining the criminal law

applicable to Reed’s case was at the time of Hall’s threat.

This is a situation where “a federal right turns upom the

status of state law as of a given moment in the past—or,

more exactly, the appearance to the individual of the

status of state law as of that moment.” Amsterdam, Note

109, U.Pa.L.Rev. 67, 74, n. 34 quoted in Bouie, 378 U.S. at

354.

—Oa-—-

The District Court’s holding has a very limited scope.

Under Gleckler, decided in 1980, compulsion is no longer a

defense to any murder charge in Illinois. That decision

has not been challenged here and it remains valid for

prospective application. However, under the Illinois Su-

preme Court’s own reasoning, that principle cannot be

applied to Reed’s actions which occurred in 1977. At that

time there had been no judicial pronouncement regarding

the interplay between the compulsion defense statute and

the death penalty statute. A reading of those statutes in .

1977 would have revealed that compulsion was not a

defense to a murder charge if “the defendant has been

convicted of murdering two or more individuals.” Such a

reading would not have informed Reed that he could not

legally yield to the death threat of Hall. Nor would a fair

reading of those statutes indicate that the subsequent act

of Hall murdering Truitt, an act described by the Appel-

late Court of Illinois as “spontaneous,” could deprive him

of the compulsion defense as to the first murder.

As to Truitt’s murder, the Appellate Court of Illinois

found Reed to be accountable under the following reason-

ing:

Accountability for murder can be established by

proof that before or during the commission of that

offense, with the intent to promote or facilitate it, the

defendant aided and abetted or attempted to aid and

abet in the murder.

= * .

That the defendant was accountable for the Rob-

bins’ murder is not disputed. We believe that there

also was sufficient evidence to find the defendant

accountable for Truitt’s murder. While it appears

that Truitt’s murder was a spontaneous reaction by

Hall to Truitt’s appearance after Robbins’ murder,

this fact is not a defense when the evidence indicates

involvement by the defendant in that spontaneous

act. We believe the defendant aided and abetted in

—10a—

Truitt’s murder because he was present at the scene of

the crime, having remained outside her apartment,

and did not oppose or disapprove of Hall’s actions.

[Citations omitted.] 432 N.E.2d at 984-985.

However, Reed’s statement indicated that Hall, who was

then armed with two guns, told him to stay there. Thus,

an issue of fact exists regarding whether his presence,

which was the basis for his accountability, was the result

of compulsion. If Reed were permitted to raise the

compulsion defense as to the first murder anc were to be

successful, his involvement in the second murder could not

be a capital crime. Therefore, he would be able to raise the

compulsion defense as to it. Therefore, we find that the

second murder charge must also be retried.

With respect to the armed robbery charge,’ however,

Reed’s accountability is also premised on his voluntary

involvement in the asportation element of the crime.

Reed admitted this participation and it does not appear

that the compulsion defense could be raised to it. There-

fore, we conclude that a retrial of the armed robbery

charge is not necessary.

Accordingly, we affirm the District Court’s issuance of

the writ but stay it pending Reed’s serving of the sen-

tence on the armed robbery «..arge and 120 days there-

after (for the State to retry him).

* It is questionable whether an armed robbery was actually

committed since this could be a case of either larceny or

burglary. The murder of Truitt clearly occurred first and the

taking of the jewelry, in which Reed participated, occurred

thereafter. Therefore, the crime was either larceny or burglary.

However, since the Appellate Court of Illinois has held it to be

armed robbery, we are bound by its decision.

—lla—

CoFFEY, Circuit Judge, dissenting. The issue as

framed by the majority and the district court in this case

is whether the petitioner, Fred Reed, had adequate notice

that the compulsion defense would not be available to him

at trial when he was allegedly forced to participate in the

murder of Robbins. Despite the majority’s well-written

opinion to the contrary, I believe the petitioner had

adequate notice that the compulsion defense would not be

available to him at trial because of his participation in the

second murder involving the witness Truitt. Thus, I

respectfully dissent.

At the time the crimes in the present case were

committed, August 1977, Illinois law provided that the

compulsion defense was available unless the offense

charged was punishable by death. Ill. Rev. Stat. ch. 38 § 7-

1l(a). According to the Illinois law at the time, a person

could be punished by death if he was convicted of murder-

ing two or more individuals. Ill. Rev. Stat. ch. 38, § 9-

1(b)(3). The majority correctly notes that a person must

have adequate notice of the law prohibiting certain con-

duct in order for that person to be charged with a criminal

violation. See Bowie v. City of Columbia, 378 U.S. 347

(1964). When Reed participated in the Robbins’ murder,

arguably he did not have notice that if charged with the

murder he would be unable to raise the compulsion defense

at trial. The record reveals, however, that Reed partici-

pated in a second murder, involving the witness Truitt.

The Illinois Appellate Court found that Hall pushed Truitt

into her apartment and told Reed to wait in the hallway.

Reed did not attempt to flee or get help; rather, he waited

for Hall, heard the shots, and when Hall reappeared asked

him for a share of the jewelry taken from Truitt. The

Illinois Appellate Court ruled that these facts were

sufficient, in and of themselves, to support Reed’s con-

viction for the first-degree murder of Truitt under the

accountability theory. People v. Reed, 104 Ill.App.3d 331,

339, 432 N.E.2d 979, 985 (1982).

—12a—

For purposes of Ill. Rev. Stat. ch. 38, § 9-1(b)(3), I

believe Reed had sufficient notice that his participation in

the second murder would strip him of his compulsion

defense for both murders. A literal reading of § 9-

1(b)(3) reveals that this statute does not require contem-

poraneous acts; rather, the acts may be punishable by

death if they “occurred as a result of the same act or of

several related or unrelated acts ....” Thus, although the

compulsion defense may have been initially available for

the murder of Robbins, in my opinion Reed’s subsequent

participation in the second murder stripped him of any

right he may have had to assert the compulsion defense at

trial.

Clearly, Reed’s guilt for the second murder was a real

possibility under an accountability theory and the rele-

vant Illinois statutes provided adequate notice to Reed

that participation in the second murder would cause the

compulsion defense to be forfeited in its entirety. Thus, I

believe that when Reed made his choice to remain and

support Hall during the Truitt murder, he forfeited his

compulsion defense. Accordingly, I respectfully dissent.’

Even if one would disagree with the conclusion that there

was adequate notice in this case, Reed’s conviction should be

reversed only as to the murder of Robbins. Reed only complains

that he was denied his compulsion defense as to the murder of

Robbins; he asserted no compulsion defense as to the murder of

Truitt. The Illinois Appellate Court has made a sufficient

finding that Reed’s acts in the hallway during the murder of

Truitt and his subsequent request for part of Truitt’s jewelry

constituted enough evidence to sustain the conviction for the

second offense. I do not agree with the district court that had

the compulsion defense been available for Robbins’ murder, that

this would have necessarily impacted upon Reed’s conviction for

the murder of Truitt. As noted by the Illinois Appellate Court,

(Footnote continued on following page)

—13a—

A true Copy:

Teste:

“Clerk of the United States Court of —

Appeals for the Seventh Circuit

' continued

there were sufficient facts involving the murder of Truitt to

separately sustain the conviction for the murder of Truitt under

the accountability theory.

—l4a—

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Unitep States Or AMERICA ex rel. FRED REED,

Petitioner,

No. 83 C 3622 v.

MICHAEL LANE, DiRECTOR, ILLINOIS DEPARTMENT OF Cor.

RECTIONS and JAMES GREER, WARDEN, MENARD CORREC-

TIONAL CENTER,

Respondents.

MEMORANDUM OPINION AND ORDER

Fred Reed (“‘Reed’’) has petitioned for a writ of habeas

corpus purs‘iant to 28 U.S.C. §2254.1 For the reasons

stated in this memorandum opinion and order, Reed’s peti-

tion is granted.

Facts?

As the result of his participation in two killings and a

related robbery, Reed was convicted of two counts of

1 Reed has been represented from the outset by the State A

pellate Defender, whose well-presented supporting and reply

memoranda have been sandwiched around the Attorney General’s

memorandum in support of his answer to the petition. This Court

has also been favored with the brief filed by the Appellate

Defender on Reed’s behalf in his state court appeals.

2 Except for the critical facts as to the alleged threat under which

Reed acted (taken from the trial transcript), this is essentially a

bobtailed version of the facts summarized > the Illinois Appellate

(Footnote continued on following page)

—1l5a—

murder and one of armed robbery. All his available state

court remedies have been exhausted, and he is now ser-

ving concurrent prison terms of 50 to 100 years for each

murder and 20 to 30 years for armed robbery.

According to the trial testimony one of the murder vic-

tims, Michael Robbins (“‘Robbins’’), was killed over a nar-

cotics trafficking territorial dispute involving Robbins,

Lonnie Hall (“Hall”) and others. About 10:30 PF August

28, 1977 Hall came into Reed’s apartment with a gun and

told Reed he wanted to use Reed to gain entry into Rob-

bins’ apartment (Robbins lived in the courtway right next

to Reed’s apartment). Hall threatened Reed, telling him

to accompany Hall to Robbins’ place or Reed “would 2ome

up dead.” They went to Robbins’ ment, Reed knock-

ed and identified himself, and Robbins opened the door.

Hall forced his way into the apartment, ordered Robbins

to lie down on the bed and told Reed to tie him up. Reed

tied Robbins’ legs and Hall tied his hands. Hall then

covered Robbins’ head with a pillow and shot him twice.

As Hall and Reed left Robbins’ apartment Beverly

Truitt (“Truitt”) opened her door and asked what hap-

pened. Hall pushed her back into her apartment and shot

her twice. When Hall came out of her apartment he had

some jewelry. At Reed’s request Hall gave him three or

four rings, a bracelet and necklace.

Reed’s Constitutional Claim

Reed claims constitutional error in the trial court’s

refusal to give a tendered jury instruction on the affirm-

ative defense of compulsion. Under Ill. Rev. Stat. ch. 38,

§7-11(a) (“Section 7-11(a)’’):

A person is not guilty of an offense, other than an

offense punishable with death, by reason of conduct

2 continued

Court in People v. Reed, 104 Ill.App.3d 331, 482 N.E.2d 979 (ist

Dist. 1982). ve to appeal was denied by the Illinois Supreme

Court April 12, 1982.

—)]6a—

which he performs under the compulsion of threat or

menace of the imminent infliction of death or great

bodily harm, if he reasonably believes death or great

bodily harm will be inflicted upon him if he does not

perform such conduct.

Section 7-11(a) and its permissible reading are the focus

of this action.

In respondents; answer here the State maintains (as it

did in the state courts) Reed was not entitled to the com-

pulsion instruction because he committed “an offense

punishable with death.”* Here as in the state courts, Reed

counters such a construction of Section 7-11(a) was con-

stitutionally impermissible, because Reed was compelled

to help commit Robbins’ murder at a time when Reed

had not yet come within the statutory “punishable with

death” exception.

In affirming Reed’s conviction, the Illinois Appellate

Court rejected his proposed reading of Section 7-11(a). 104

Ill.App.3d at 337-39, 432 N.E.2d at 984-85. This Court is

bound by that construction in state law terms. /srael v.

Odom, 521 F.2d 1370, 1376 (7th Cir. 1975); United States

ex rel. Hanrahan v. Bosse, 547 F.Supp. 718, 720-21 (N.D.

Ill. 1982).

3 In relevant part th. Illinois death penalty statute, Ill. Rev. Stat.

ch. 38, §9-1(bX3) (“Section 9-1(bX3)’’), provides:

A defendant who at the time of the commission of the of-

fense has attained the age of 18 or more and who has been

found guilty of murder may be sentenced to death if: .. .

3. the defendant has been convicted of murdering two or

more individuals under Subsection (a) of this Section or under

= law of the United States or of any state which is

substantially similar to Subsection (a) of this Section

regardless of whether the deaths occurred as the result of

the same act or of several related or unrelated acts so long

as the deaths were the result of either an intent to kill more

than one person or of separate premeditated acts... .

—17a—

At this point, then, the question is whether that bin-

ding construction of Section 7-11(a) denied Reed due pro-

cess under the Fourteenth Amendment. Reed contends:

1. At the time he admittedly participated in Rob-

bins’ murder, Reed had committed no prior murder.

Therefore the Robbins murder could not have involv-

ed the quality of intent or conduct necessary for

sentencing Reed to death under Section 9-1(bX3).

2. At the time of the Robbins murder Reed could

not reasonably have anticipated Hall’s later murder

of Truitt. That later murder cannot be the retroac-

tive predicate for making Reed’s involvement in the

earlier offense punishable by death.

Essentially Reed relies on the principle that due pro-

cess requires a person to be fairly apprised of criminal

consequences at the time he acts—in this case at the time

he reacted to the compulsion he claims Hall visited upon

him immediately preceding Robbins’ murder. If such

notice is not fairly given by a statute, that statute is

deemed unconstitutionally vague under the standard of

United States v. Harriss, 347 U.S. 612, 617 (1954):

The constitutional requirement of definiteness is

violated by a criminal statute that fails to give a per-

son of ordinary intelligence fair notice that his con-

templated conduct is forbidden by the statute. The

underlying principle is that no man shall be held

criminally responsible for conduct which he could not

reasonably understand to be proscribed.

Of course every such argument relies on a fiction: the

notion that a person bent on criminal activity is indeed

aware of what the law provides, as though the potential

murderer carries a copy of the Illinois Criminal Code with

him (or has it committed to memory). But it is a n

fiction if the concept of mens rea is not to be subverted.

4 This case is perhaps not quite like those in which (say) vague

vagrancy statutes or ordinances are invalidated on the ground no

(Footnote continued on fcllowing page)

—18a—

This Court then must look at what Reed was fairly ap-

prised of at the time he was confronted with the deci-

_ how to act in the face of Hall’s menace to his own

e.

In terms of that necessary fiction, had Reed looked at

the statute when forced to decide what action to take in

conjunction with Robbins’ murder, he would have known

from the plain statutory language the compulsion defense

was available to him. Under that defense Reed could yield

to Hall’s death threat without putting his own life in

jeopardy (via a potential death sentence) by so yielding.®

That was the legal matrix in which Reed was entitled to

make his decision about what action to take. What was

surely not obvious from the face of the statute and then-

existing case law’ was that a later event—Hall’s

* continued

reasonable person could know the conduct was criminal at all.

Papachristou v. Jacksonville, 405 U.S. 156 (1972). After all,

everyone knows participating in a killing is in all likelihood a

criminal act (malum in se rather than malum prohibitum). But

on reflection the parallel is not so farfetched, for it is not really

so obvious that participating in a killing while in fear for your

own life is necessarily criminal.

5 This Court of course makes no factual judgment as to the

claimed threat to Reed’s life, for this Court is not the finder of

fact. Rather the question is whether the jury should have been

told that — See such threat—if it believed the evidence—

would render not guilty.

8 In the course of deciding the y reer intent underlying Sec-

tion 7-11(a), People v. Gleckler, 82 Ill.2d 145, 160, 411 N. 849,

856 (1980) twice 7 acknowledged the statute’s literal

meaning was that indicated in the text of this opinion. For that

reason Gleckler limited its elimination of the compulsion defense

for all murder prosecutions to apply only prospectively. Those fac-

tors provide an effective confirmation of the fundamental un-

fairness of saddling Reed with such a skewed and forced reading

of the statute.

7 Gleckler’s | ogre application further narrows the likelihood

the present decision (with its unusual facts) will have any mean-

ingful effect on any other cases.

—19a—

gratuitous murder of Truitt—would deprive Reed of the

compulsion defense on the theory that as a whole two

or more murders are punishable by death.

Now the Illinois Appellate Court has taught Section

7-11(a) must be read that latter way. That gloss on the

statute binds this Court as a matter of statutory construc-

tion. It does not however bind this Court as to the con-

stitutional effect of that construction. Under the standard

enunciated in United States v. Batchelder, 442 U.S. 114,

123 (1978), the language of the Illinois statute—as con-

trasted with its post-hoc interpretation by the Illinois

courts—did not “state with sufficient clarity the conse-

uences of violating a given criminal statute.”’ Accordingly

this Court holds tion 7-11(a), with the patina added

by the Illinois courts, is unconstitutionally vague in due

process :erms as to Reed.®

That due precess deprivation impacted on Reed by the

trial court’s refusal to give the requested instruction as

to compulsion (an instruction that would have conformed

to the statute’s natural meaning without the constitu-

tionally flawed reading). In an effort to avoid that con-

clusion, respondents have advanced ‘two further

arguments:

® This ruling should be distinguished from a holding that Reed

was constitutionally entitled to a defense that he had acted under

compulsion. This Court is not suggesting the Illinois Supreme

Court’s decision in Gleckler (see n.6), making that defense

unavailable to murderer, was itself unconstitutional! (or that

a like action ty 4 Illinois General Assembly would be constitu-

yee on suspect). Nor does this Court find Reed to have been

denied equal protection simply because all other one-time

murderers were accorded a compulsion defense under Illinois law,

for the record is devoid of any suggestion the State was motivated

by any discriminatory animus toward Reed. Rather the constitu-

tional problem is that the reasonable person in Reed’s position

could not fairly have known, at the time he was called upon to

choose a course of action in response to a death threat (the mak-

ing of which must be accepted for current Pampa my that Sec-

tions 7-11(a) and 9-1(bX3) would be read in the tricky, mirrored-

back way that eliminated the compulsion defense retrospectively.

—20e—

1. There is insufficient evidence of compulsion in

the record to warrant an instruction on the issue.

2. Even were that not so, failure to give the in-

struction did not result in a “fundamental miscarriage

of justice.”

On the first issue, the “come up dead” testimony was

plainly enough on its own to raise the compulsion defense.

Once the issue was raised by the evidence, the state court

was obligated to instruct the jury on the affirmative

defense of compulsion. People v. Wallace, 100 Ill.App.3d

424, 430, 426 N.E.2d 1017, 1023 (1st Dist. 1981).®

As for respondents’ second argument, it cannot be blink-

ed that the jury’s unawareness of a compulsion defense

subjected Reed to a conviction of Robbins’ murder that

would not have occurred had the jury credited and given

full effect to the ‘‘come up dead” testimony. In conjunc-

tion with the Truitt conviction,’© Reed was thus exposed

to a potential death penalty—a result that would not have

obtained on a conviction as to Truitt alone.

Such “risk enhancement”’ is strongly redolent of the

situation dealt with in Beck v. Alabama, 447 U.S. 625

® It will not do for respondents to argue (Mem. 9-10) their own

inferences about the reality of Hall’s threat. They are not the

triers of fact any more than this Court. For t that appears

the uninstru j could reasonably have believed the sto

about Hall’s threat, believed Reed was acting in fear of “dea

or great bodily harm,” yet, felt that fear still could not justify par-

ticipation in a callous murder. Such a frame of mind on the part

of the jury would have resulted in the guilty verdict it returned.

It is plain the refused compulsion instruction could reasonably have

tipped the scales for acquittal. Wallace itself teaches “that very

shght evidence upon a given theory of the case will justify the

giving of an instruction.”

10 Reed’s conviction of this second murder was also affirmed by

the Illinois Appellate Court, though a reading of its opinion leaves

the feeling it was Reed’s unfeeling sharing in the fruits of Hall’s

wanton killing of Truitt, more than any involvement in the offense

itself, that contributed to that result.

—2la—

(1980), where failure to give an instruction on a lesser-

included offense enhanced the defendant’s risk of being

convicted of a capital offense. What the Court said in

Beck—the principle that prompted its decision—applies

with equal force here (id. at 637-38, footnotes omitted):

For when the evidence unquestionably establishes

that the defendant is guilty of a serious, violent

offense—but leaves some doubt with respect to an

element that would justify conviction of a capital

offense—the failure to give the jury the “third op-

tion” of convicting on a ener included offense would

seem inevitably to enhance the risk of an unwar-

ranted conviction.

Such a risk cannot be tolerated in a case in which

the defendant’s life is at stake. As we have often

stated, there is a significant constitutional difference

between the death penalty and lesser punishments:

“{Djeath is a different kind of punishment from

any other which may be imposed in this coun-

try. . . . From the point of view of the defen-

dant, it is different in both its severity and its

finality. From the point of view of society, the

action of the —— in taking the life of one

of its citizens aiso differs dramatically from any

other legitimate state action. It is of vital im-

portance to the defendant and to the communi-

ty that any decision to impose the death

sentence be, and appear to be, based on reason

rather than caprice or emotion.” Gardner v.

Florida, 430 U.S. 349, 357-358 (opinion of

Stevens, J.).

To insure that the death penalty is indeed imposed

on the basis of “reason rather than caprice or emo-

tion,” we have invalidated procedural rules that tend-

ed to diminish the reliability of the sentencing deter-

mination. The same reasoning must apply to rules

that diminish the reliability of the guilt determina-

tion. Thus, if the unavailability of a lesser included

—— PPa..

offense instruction enhances the risk of an unwar-

ranted conviction, Alabama is constitutionally pro-

hibited from withdrawing that option from the jury

in a capital case.

That enhancement of risk—for Reed was in fact poten-

tially subjected to a death sentence, though the trial

court’s ultimate decision was to impose a 50- to 100- year

term—effectively distinguishes Reed’s situation from the

line of cases applying a more stringent standard to the

usual erroneous jury instruction or the usual erroneous-

ly omitted jury instruction.1! See the discussion in Nichols

v. Gagnon, 710 F.2d 1267, 1269-72 (7th Cir. 1983). Indeed,

under the circumstances of this case, the omission of the

compulsion instruction satisfied that more stringent test

of “fundamental miscarriage of justice” announced in such

cases as lVichols.

Conclusion

Reed’s petition for writ of habeas corpus is granted.

Respondents are ordered to discharge Reed unless the

State of Illinois gives him a new trial within a reasonable

time (which, absent a showing by respondents, shall be

conclusively deemed to require retrial within 120 days).

/s/_ Milton I. Shadur

United States District Judge

Date: October 3, 1983

11 Tt is a familiar truism that much of our criminal constitutional

law is generated by cases involving (perhaps an understatement)

unsavory people who have committed abhorrent offenses. That

fact, perhaps coupled with the desire (even subconsciously) not to

be “soft on crime,” may largely contribute to the current tenden-

cy to expand notions of “harmless error.”’ But what Beck teaches

is that by definition the omission of an instruction that enhances

the risk of a death sentence cannot be harmless.

—23a—

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 1, 1985.

Before

Hon. WALTER J. Cummincs, Chief Judge

Hon. Joun L. Correy, Circuit Judge

Hon. WILLIAM J. CAMPBELL, Senior District Judge*

UnitTep States Or AMERICA ex rel. FRED REED,

Petitioner-Appellee,

No. 83-2972 Vs.

MICHAEL LANE and JAMES GREER,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 83 C 3622—Milton I. Shadur, Judge.

ORDER

On consideration of the petitions for rehearing and sug-

gestions for rehearing en banc filed in the above-entitled

cause by — Fred Reed and appellants Michael Lane

and James Greer, 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 petitions for

rehearing be, and the same are hereby, DENIED.

* The Honorable William J. Campbell, Senior District Judge of

the Northern District of Illinois, is sitting by designation.