# Appendix — Page v. Mahaffey

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1127

## Text

Supreme Court, U.S.
FILED

No. 1981466 MAR15 199

OFFICE OF THE CLERK
IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

THOMAS PAGE, Warden,

. Petitioner,

JERRY MAHAFFEY,
Respondent.

On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Seventh Circuit

SEPARATE APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI

JAMES E. RYAN

Attorney General

State of Illinois

100 West Randolph Street
12th Floor

Chicago, Illinois 60601

Counsel for Petitioner
RICHARD A. DEVINE
State’s Attorney
Cook County, Illinois

RENEE GOLDFARB*
ARLEEN C. ANDERSON
JUDY L. DeANGELIS
Assistant State’s Attorneys
309 Richard J. Daley Center
Chicago, Illinois 60602
(312) 603-5496

Of Counsel *Counsel of Record

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

} r ? (¥

TABLE OF CONTENTS
PAGE

Mahaffey v. Page, 162 F.3d 481 (7th Cir. 1998)
(decision of the United States Court of
Appeals for the Seventh Circuit upon
WEI 0 oe ee re we ee Al

Mahaffey v. Page, 1999 U.S. App. LEXIS 698
(7th Cir. Jan. 15, 1999) (denial of Petitioner’s
Petition for Rehearing with Suggestion for
a ee NE ee ee es Bl

Mahaffey v. Page, 151 F.3d 671 (7th Cir. 1998)
(original panel decision of the United States
Court of Appeals for the Seventh Circuit) ..... Cl

Mahaffey v. Page, 160 F.3d 1139 (7th Cir. 1998)
(grant of the Respondent’s Petition for
INN os Sr ag ee ale ei D1

Mahaffey v. Peters, 978 F.Supp. 762 (N.D. Ill. 1997)
(District Court’s denial of petition for writ
OE PN OI os eS eee ee ces ok ks El

Mahaffey v. Peters, No. 95 C 6623 (Nov. 18, 1997)
(District Court’s grant of certificate of
probable cause or of appealability) ..-....... Fl

Mahaffey v. Peters, No. 95 C 6623 (Dec. 18, 1997)
(District Court’s denial of Respondent’s
Motion to Alter or Amend the Judgment) ..... Gl

People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.2d
1172, 132 Ill. Dec. 366 (1989) (decision
of the Illinois Supreme Court affirming
Respondent’s convictions and death
PE hres ree te eee eee eee ee H1

Al
APPENDIX A

JERRY MAHAFFEY, Petitioner-Appellant, v.
THOMAS PAGE, Warden, Respondent-Appellee.

No. 97-4137

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

162 F.3d 481; 1998 U.S. App. LEXIS 29496
November 19, 1998, Decided

SUBSEQUENT HISTORY: As Amended November 20,
1998.

Rehearing In Banc and Rehearing Denied January 15,
1999, Reported at: 1999 U.S. App. LEXIS 698.

PRIOR HISTORY: [*1] Appeal from the United States
District Court for the Northern District of Illinois,
Eastern Division. No. 95 C 6623. James B. Zagel,
Judge.

Original Opinion of August 6, 1998, now Partially Va-
cated, Reported at 1998 U.S. App. LEXIS 18189.

DISPOSITION: REVERSED judgment of district court
and order the writ be granted unless, within 120 days,
the state trial court holds a new hearing on Mahaffey’s
Batson claim in accordance with this opinion. Our prior
opinion in Mahaffey v. Page, 151 F.3d 671 (7th Cir.
1998), vacated to the extent that it is inconsistent with
this decision.

CORE TERMS: juror, excused, prima facie, prosecutor,
prima facie case, peremptory, jury venire, venireperson,

A2

race-neutral, defense counsel, jury selection, state trial,
similarity, pretextual, articulate, venire, ultimate issue,
prior opinion, raceneutral, proceeded, stricken, exclud-
ing, comparing, federal district, matter of law, racial
group, come forward, voir dire, de novo, discriminate

COUNSEL: For JERRY MAHAFFEY, Petitioner - Ap-
pellant: Alan M. Freedman, MIDWEST CENTER FOR
JUSTICE, LTD., Chicago, IL USA. Gary Prichard, MID-
WEST CENTER FOR JUSTICE, Chicago, IL.

For THOMAS F. PAGE, Warden, Respondent - Appel-
lee: Deborah L. Ahlstrand, OFFICE OF THE ATTOR-
NEY GENERAL, Chicago, IL USA. Renee G. Goldfarb,
OFFICE OF THE STATE’S ATTORNEY OF COOK
COUNTY, Chicago, IL USA.

JUDGES: Before CUMMINGS, FLAUM, and ROVNER,
Circuit Judges. FLAUM, Circuit Judge, dissenting.

OPINION BY: ROVNER

OPINION: ROVNER, Circuit Judge. This case is before
us on rehearing by the panel solely of the Batson issue.
The details of the crime are set forth in our prior opin-
ion, Mahaffey v. Page, 151 F.3d 671 (7th Cir. 1998). We
need only review the facts relevant to the Batson issue.

Jerry Mahaffey was convicted of murder, attempted
murder, aggravated battery, home invasion, armed rob-
bery, residential burglary, and theft, and ultimately
sentenced to death, by a jury comprised of eleven
whites and one Asian-American. Mahaffey [*2] and his
brother, African-Americans from the South side of
Chicago, were accused of these heinous crimes against
three white victims from the North side of the city. The
State exercised peremptory challenges against all seven
African-American members of the jury venire.

A3

While Mahaffey’s direct appeal to the Illinois Su-
preme Court was pending, the United States Supreme
Court decided Batson v. Kentucky, 476 U.S. 79, 90 L.
Ed. 2d 69, 106 S. Ct. 1712 (1986). In accordance with
the mandate of Batson, the Illinois Supreme Court
remanded Mahaffey’s case, ordering the trial court to
conduct a hearing and to determine whether jury
selection complied with that decision. After conducting
that hearing, the state trial judge concluded that Ma-
haffey had failed to establish a prima facie case of
discrimination under Batson. The Illinois Supreme
Court affirmed on that basis, and the federal district
court subsequently declined to issue a writ of habeas
corpus. In finding no Batson violation in the selection
of Mahaffey’s jury, both the state supreme court and
the federal district court effectively deferred to the trial
court’s conclusion that Mahaffey had failed to establish
a prima facie case. See [*3] People v. Mahaffey, 128 Ill.
2d 388, 539 N.E.2d 1172, 1184-85, 132 Ill. Dec. 366 (Ill.
1989), cert. denied, 497 U.S. 1031 (1990); United States
ex rel. Mahaffey v. Peters, 978 F. Supp. 762, 781-82
(N.D. Ill. 1997).

I.

As an initial matter, we must determine whether the
trial court ever proceeded beyond the prima facie
determination in this case. The petition for rehearing
and answer to that petition have clarified, and our
review of the record confirms, that the trial court never
ventured beyond that first stage of the Batson inquiry.
Indeed, all courts that have reviewed this case to this
point are in agreement on that point, and their con-

A4

struction of the record is entitled to deference. More-
over, the trial court never developed the facts that
would be necessary for the next stages of the Batson
analysis; specifically, the court did not elicit facts to
compare excluded African-American jurors with accept-
ed jurors, instead focusing on a comparison of excluded
jurors with one another. Finally, because the trial court
dismissed Mahaffey’s Batson claim at the prima facie
stage, the government was never required to articulate
its actual reasons for striking the African-American
jurors [*4} and defense counsel consequently was never
given an opportunity to address the prosecutor’s true
reasons for the exclusions.

A Batson hearing normally progresses through 3
stages: (1) the defendant must make a prima facie
showing that the prosecutor has exercised peremptory
challenges on the basis of race; (2) once that showing
has been made, the burden shifts to the prosecutor to
articulate a raceneutral explanation for striking the
jurors in question; (3) the trial court, after hearing the
defendant’s response, must decide whether those rea-
sons are pretextual and whether the defendant has
thus carried his burden of proving purposeful discrimi-
nation. Batson v. Kentucky, 476 U.S. 79, 96-98, 90 L.
Ed. 2d 69, 106 S. Ct. 1712 (1986). There are allowable
deviations from this three-step process. In Hernandez
v. NY, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 111 S. Ct.
1859 (1991), the Supreme Court held that if the prose-
cutor immediately proceeds to give race-neutral reasons
and the trial court rules on the ultimate question of
intentional discrimination, there is no constitutional
problem merely because the court bypassed the prima
facie stage.

A5

In this case, however, the court never proceeded [*5]
beyond the prima facie determination, and the State
was not called upon to articulate its reasons for exercis-
ing peremptory challenges against the African-Ameri-
can members of the venire. In addressing Mahaffey’s
prima facie showing, the State did note certain explana-
tions for its exclusions of the African-American venire-
persons that were “apparent” from the record. The dis-
cussion of those “apparent” reasons for exclusion has
generated some inconsistent arguments in the briefs as
to just how far the Batson inquiry proceeded. Mahaffey
argues, for example, that the district court erred in
failing to proceed beyond the prima facie stage of the
analysis. He further contends, however, that the ex-
planations the State proffered for excluding the African-
American jurors were pretextual, and that we should
find discrimination as a matter of law. This implies
that the State provided its actual reasons for the chal-
lenges with respect to every African-American excluded,
and that we can reach the ultimate issue of discrimina-
tion as the court did in Hernandez. Somewhat inconsis-
tently, Mahaffey also argues that if we find that the
reasons are not pretextual, the case should be remand-
ed to allow him [*6] an opportunity to address the gov-
ernment’s actual reasons individually.

The defendant’s characterization of the Batson hear-
ing in this case unnecessarily obfuscates the only issue
properly before this Court. The state trial court, state
supreme court, district court, and the State itself in its
brief, all maintain that the Batson hearing was limited
to the prima facie determination. Although the State
provided more detailed reasons for its challenges than
is perhaps necessary at that stage, it has consistently

A6

asserted that it never provided the actual reasons for
its challenges of each potential African-American juror.
See, e.g., Brief of Attorney General at p.13 (arguing
that only “apparent,” not actual reasons were provided
and declaring that “the prosecution never tendered
‘race-neutral’ reasons at trial, nor during any appellate
proceeding, state or federal.”). Instead, the State lim-
ited its explanations to identification of “apparent”
similarities on the record between excluded white
venirepersons and excluded African-Americans, arguing
that those apparent similarities negated any inference
of discrimination.’ Those apparent similarities, howev-

' This difference between actual and apparent reasons is not
one of semantics. Apparent reasons are those that are discern-
ible on the record, regardless of whether they were the actual
motivation for the challenges. As the Attorney General argued
and the district court found, the apparent explanations were
“directed to explaining the pattern of challenges” used during
the jury selection. One could imagine a case in which all
stricken jurors were attorneys, for example, in which the ap-
parent explanation could negate an inference of race discrimi-
nation, regardless of whether the attorney status was the
actual reason for each strike. In such a case, the apparent
reasons might be sufficiently convincing that the court would
not require the prosecutor to come forward with actual rea-
sons.

The discussion of apparent reasons for the challenges in this
case thus consisted of pointing to characteristics on the face of
the voir dire record which demonstrated a similarity among
stricken jurors. For instance, the prosecutor pointed out that
both an African-American and a white juror excluded were
under age 25. Such “apparent” reasons were designed to indi-
cate a pattern of challenges against African-American mem-
bers of the venire explainable on grounds other than race. If
a prima facie violation had been found, the State would have
been forced to identify a race-neutral justification for each

(continued...)

ee

A7

er, cannot be mistaken for the [*7] actual reasons for
the challenges. Only after the defendant establishes a
prima facie case is the State required to reveal its
actual reasons for the exclusions. Moreover, at that
stage, the relevant comparison is between the excluded
African-Americans and the jurors that were allowed to
sit on the jury. Because the trial judge never reviewed
the actual reasons for the challenges and did not
compare the excluded African-American venirepersons
with those accepted on the jury, we are limited on
appeal to determining whether the prima facie showing
was met.

[*81 We note that this conclusion would be mandated
in any case because the trial court informed Mahaffey
that he could respond to the raceneutral reasons after
the prima facie determination was made. Although
Mahaffey’s counsel argued at some length that the chal-
lenges demonstrated discrimination, he also repeatedly
noted that he would respond in more detail if the court
determined that the prima facie showing was met. The
court ultimately found to the contrary, of course, and
thus Mahaffey never had the opportunity to address the
State’s rationale for excluding the African-American
jurors. In those circumstances, it would be inappropri-

' (...continued)

excluded African-American juror (its “actual” reasons), and
defense counsel would have been able to rebut that justifica-
tion for each juror. Continuing the above example, if the prose-
cutor had asserted age as the actual reason for excluding the
juror, the defense counsel could have argued that it was pre-
textual because four white jurors in their twenties were not
excluded.

A8

ate for us to proceed on appeal to the ultimate issue of
discrimination even with a more complete record.

II.

Therefore, the only issue properly before us today is
whether Mahaffey established a prima facie case of dis-
crimination. Unlike the ultimate issue of discriminatory
intent, which as a factual question is entitled to defer-
ential review (see Batson, 476 U.S. at 98 n.21), the pre-
liminary question of whether a prima facie case has
been shown presents a mixed question of law and fact
(see, e.g., United States v. Bergodere, 40 F.3d 512, 516
(1st Cir. [*9] 1994), cert. denied, 514 U.S. 1055, 131 L.
Ed. 2d 318, 115 S. Ct. 1439 (1995); United States v.
Alvarado, 891 F.2d 439, 443 (2d Cir. 1989), vacated on
other grounds, 497 U.S. 543 (1990)), which the appel-
late courts should review de novo. Although some of our
sister circuits have utilized a clearly erroneous stan-
dard in their review of that question (see Bergodere, 40
F.3d at 516 (citing cases)), the Supreme Court’s recent
decision in Ornelas v. United States, 517 U.S. 690, 134
L. Ed. 2d 911, 116 S. Ct. 1657 (1996), points in the di-
rection of de novo review. The question of whether an
inference of discrimination may be drawn from a set of
undisputed facts relating to the racial makeup of the
jury venire and the prosecutor’s exercise of peremptory
challenges is, like the probable cause question before
the Court in Ornelas, one over which the appellate
courts should exercise a degree of control that a clear
error standard would not afford. Jd. at 697. As in
Ornelas, factual scenarios will recur in this context,
and de novo review would allow for a measure of con-

AQ

CE WARE mare's

sistency in the treatment of similar factual settings,
rather than permitting different trial judges to reach
inconsistent conclusions [*10] about the prima facie
case on the same or similar facts. Id. at 697-98; cf.
Mahaffey, 978 F. Supp. at 781 (“This is not to say that
Judge Hett could not have decided the question the
other way, but on this record, given his participation in
the jury selection, his judgment that there was no
prima facie case was permissible.”). Ultimately, how-
ever, the standard of review question is largely beside
the point, for even if a more deferential standard were
applied, we would have to conclude that Judge Hett
clearly erred in finding that no inference of discrimina-
tion arose from the facts and circumstances here.

We recognize, of course, that Batson requires us to
look to all the relevant facts and circumstances in
assessing whether an inference of discrimination should
arise. See Batson, 476 U.S. at 96. Yet by far the most
important factor in this case, and one that the Illinois
courts were too quick to overlook, is that all seven
African-American members of the jury venire were
excused by the State, meaning that not a single mem-
ber of Mahaffey’s own race was seated on the jury that
decided his fate.” This is therefore not a case in which
only one or two members of a particular racial [*11]
group were excused while other members of the same
racial group remained; it is instead a case where the
State exercised seven of thirteen total challenges to

2 There was of course an African-American alternate who sat
through Mahaffey’s trial, but she did not deliberate on the ver-
dicts either at the conviction or penalty phase, and she was
admitted on the jury only after the State had exhausted its
peremptory challenges.

Al10

exclude every member «f Mahaffey’s own race. That is
fairly compelling evidence of discrimination, at least at
the prima facie case stare, where the State has not yet
been required to articulate its race-neutral reasons for
striking the African-American jurors. An inference of
discrimination is particularly appropriate in light of the
Supreme Court’s admonition in Batson that we be
mindful of the fact that “peremptory challenges consti-
tute a jury selection practice that permits ‘those to dis-
criminate who are of a mind to discriminate.’” 476 U.S.
at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562, 97
L. Ed. 1244, 73 S. Ct. 891 (1953)). The Supreme Court
in Batson emphasized that an inference of discrimina-
tion may arise where the prosecutor makes a pattern of
strikes against African-American jurors. 476 U.S. at 97.
Such a pattern plainly is evident in the State’s juror
challenges here, where the prosecutor excused each and
every African-American member of the jury venire. See
McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996)
(inference [*12] of discrimination may be drawn “where
there are only a few members of a racial group on the
venire panel and one party strikes each one of them”),
cert. denied, 520 U.S. 1147, 117 S. Ct. 1320, 137 L. Ed.
2d 482 (1997); United States v. Sowa, 34 F.3d 447, 452
(7th Cir. 1994) (in challenge to use of peremptory chal-
lenges by defense counsel, court held that “the govern-
ment easily made its prima facie case that the peremp-
tory challenges were motivated by race; each and every
black venireperson [six in all] was challenged.”), cert.
denied, 513 U.S. 1117, 130 L. Ed. 2d 796, 115 S. Ct.
915 (1995); Splunge v. Clark, 960 F.2d 705, 707 (7th
Cir. 1992) (prima facie case shown where both African-
American members of the jury venire were excluded by
the prosecution).

ee

—

All

Daly | aia og pana Fora ces

[*13] And lest we forget, the crimes at issue in this
case were obviously racially-sensitive—Mahaffey, a
young African-American male from Chicago’s South
side, was charged with murdering a white couple on the
North side, and with attempting to murder their young
son. This is therefore a case in which the racial compo-
sition of the jury could potentially be a factor in how
the jury might respond to Mahaffey’s defense at trial,
as well as to his arguments in mitigation at the capital
sentencing phase. See Williams v. Chrans, 945 F.2d
926, 943-45 (7th Cir. 1991), cert. denied, 505 U.S. 1208,
120 L. Ed. 2d 877, 112 S. Ct. 3002 (1992). Before the
judgment of the essentially all-white jury in this case
is executed, the State at least should be required to
explain why it excused each venire person of Mahaffey’s
own race, and Mahaffey should be allowed to respond
to those reasons.

sc a Me SoSiapagae ted ie ets

We are sensitive.to the fact that Judge Hett was
present during the jury voir dire and that, in his view,
all of the relevant facts and circumstances did not
produce an inference of discrimination. Yet Judge Hett
came to that conclusion only after comparing the seven
African-Americans whom the State excused from the
(*14] jury with the six whites who were similarly ex-
cused. The state trial judge essentially found that be-
cause the excused African-Americans and the excused
whites had similar characteristics, an inference of dis-
crimination should not be drawn from the decision to
strike the African-Americans. Batson Hearing Tr. at 54.
But rather than comparing the excused African-Ameri-
cans to the excused whites, the trial judge should have
been comparing the excused African-Americans to the
jurors who remained, for only through such a compari-

Al12

son could the judge assess whether race played any role
in the State’s challenges. If an excused African-Ameri-
can juror had characteristics and opinions that were
similar to those of a juror who sat, for example, then an
obvious inference, at least prior to the articulation of a
race-neutral explanation for the strike, would be that
the strike was racially-motivated. As far as the voir
dire record would reveal, the stricken juror’s race would
be the only characteristic distinguishing the African-
American from the juror who was retained.

It is significant in that regard that Judge Hett found
at the Batson hearing that the whites who sat on Ma-
haffey’s jury were similar [*15] to the African-Amer-
icans the State had excused. Id. at 51. That finding
suggests that the State may have used its peremptory
challenges to single out African-American venirepersons
for exclusion, in comparison to whites with the same or
similar characteristics. And the inference of discrimina-
tion that would arise in that circumstance is unaffected
by the fact that some whites with the same characteris-
tics also may have been excused—the State still struck
all the African-Americans while retaining some of the
whites, and despite having strikes available that went
unused.

In short, the showing made by Mahaffey at the Bat-
son hearing was sufficient as a matter of law to require
the State to come forward with raceneutral explana-
tions for each of the challenged strikes. Because the
court never required the State to do so, Mahaffey has
established a Batson violation. The proper remedy for
this Batson violation is the one set forth in Coulter v.
Gilmore, 155 F.3d 912, 922 (7th Cir. 1998). We there-
fore REVERSE the judgment of the district court and

Al13

order that the writ be granted unless, within 120 days,
the state trial court holds a new hearing on Mahaffey’s
Batson claim in accordance with [*16] this opinion. Our
prior opinion in Mahaffey v. Page, 151 F.3d 671 (7th
Cir. 1998), is vacated to the extent that it is inconsis-
tent with this decision.

DISSENT BY: FLAUM

DISSENT: FLAUM, Circuit Judge, dissenting. Based
on the analysis advanced in my prior opinion in this
case, Mahaffey v. Page, 151 F.3d 671, 675-680 (7th Cir.
1998), 1 respectfully dissent. I remain of the view that
the constitutional commands of Batson v. Kentucky,
476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)
have been met in this matter. Accordingly, I would
deny the writ of habeas corpus and affirm the decision
of the district court.

Bl
APPENDIX B

JERRY MAHAFFEY, Petitioner-Appellant, v.
THOMAS PAGE, Respondent-Appellee.

No. 97-4137

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

1999 U.S. App. LEXIS 698

January 15, 1999, Decided

PRIOR HISTORY: [*1]

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division. No. 95 C
6623. James B. Zagel, Judge Presiding.

Original Opinion of November 19, 1998, Reported at:
1998 U.S. App. LEXIS 29496.

JUDGES: Before Honorable Walter J. Cummings, Cir-
cuit Judge, Honorable Joel M. Flaum, Circuit Judge,
Honorable Ilana Diamond Rovner, Circuit Judge.

OPINION: ORDER

On consideration of the petition for rehearing with
suggestion for rehearing en banc filed by respondent-
appellee on December 10, 1998, no judge in active
service has requested a vote thereon, and a majority* of

* Honorable Joel M. Flaum voted to grant a rehearing.

B2

the judges on the original panel have voted to deny a
rehearing. Accordingly,

IT IS HEREBY ORDERED that the petition for re-
hearing with suggestion for-rehearing in banc be, and
the same is, hereby DENIED.

Cl
APPENDIX C

Jerry Mahaffey, Petitioner-Appellant, v.
Thomas Page, Warden, Respondent-Appellee.

No. 97-4137

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

151 F.3d 671; 1998 U.S. App. LEXIS 18189

August 6, 1998, Decided

SUBSEQUENT HISTORY: Rehearing Granted October
26, 1998, Reported at: 1998 U.S. App. LEXIS 28201.

PRIOR HISTORY: [**1] Appeal from the United States
District Court for the Northern District of Illinois,
Eastern Division. No. 95 C 6623. James B. Zagel,
Judge.

Original Opinion of August 6, 1998, now Partially Va-
cated, Reported at: 1998 U.S. App. LEXIS 18189.

DISPOSITION: Affirmed the judgment of the district
court.

CORE TERMS: prima facie case, juror, prosecutor, per-
emptory, race-neutral, excused, veniremen, ineffective
assistance, sentencing hearing, voir dire, sentence,
prima facie, stricken, brother, confession, state trial,
colleagues, venire, jury selection, death sentence, apart-
ment, defense counsel, mitigating, proceeded, suppres-
sion hearing, death penalty, jury venire, pretextual,
prison, mitigation

j

C2

COUNSEL: For JERRY MAHAFFEY, Petitioner - Ap-
pellant: Alan M. Freedman, Gary Prichard, MIDWEST
CENTER FOR JUSTICE, LTD., Chicago, IL USA.

For THOMAS F. PAGE, Respondent - Appellee: Deb-
orah L. Ahlstrand, OFFICE OF THE ATTORNEY GEN-
ERAL, Civil Appeals Division, Chicago, IL USA. Renee
G. Goldfarb, OFFICE OF THE STATE’S ATTORNEY
OF COOK COUNTY, Criminal Appeals Division,
Chicago, IL USA.

JUDGES: Before Cummings, Flaum, and Rovner, Cir-
cuit Judges. ROVNER, Circuit Judge, dissenting.

OPINION BY: FLAUM

OPINION: [*674] Flaum, Circuit Judge. Jerry Ma-
haffey was convicted by an Illinois jury in 1985 of two
counts of murder, along with one count each of attempt-
ed murder, aggravated battery, home invasion, rape,
armed robbery, residential burglary, and theft. For
these crimes, he was sentenced to death. On direct
review, the Illinois Supreme Court affirmed his convic-
tion and sentence, 128 Ill. 2d 388, 539 N.E.2d 1172, 132
Ill. Dec. 366 (Ill. 1989), and the United States Supreme
Court denied his petition for certiorari, 497 U.S. 1031
(1990). Mahaffey’s state petition for post-conviction
relief was similarly unsuccessful. See 165 Ill. 2d 445,
651 N.E.2d 174, 209 Ill. Dec. 246 (ill.), cert. denied, 516
U.S. 977 (1995). He then filed this petition for federal
habeas corpus relief,’ which the district court denied.

' Mahaffey filed his petition on November 14, 1995. Therefore,
the provisions of the Antiterrorism and Effective Death Penal-
ty Act of 1996 (AEDPA) do not apply to this case. See Lindh
v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059
(1997).

C3

See United States ex rel. Mahaffey v. Peters, 978 F.
3 Supp. 762 (N.D. Ill. 1997). Mahaffey now appeals the
denial of the writ on a number of grounds rejected by
j the district [**2] court, and we affirm.

ET

I.

Jerry Mahaffey, along with his brother Reginald,
drove to Chicago’s North Side on the night of August
29, 1983 to burglarize a clothing store. The Mahaffey
brothers aborted that plan at some point, and they
instead chose to climb through an open window and
into the apartment of Jo Ellen and Dean Pueschel. The
Pueschels, along with their then eleven-year old son
Richard, were asleep at the time. After Reginald picked
up a knife from the kitchen, the brothers first entered
Richard’s bedroom and proceeded to stab him with the
knife and hit him over the head with a baseball bat
that was in the bedroom. Reginald picked up a bat as
well, and the brothers next proceeded into the Pue-
schels’ bedroom, where they began to hit Dean Pueschel
on the head with [**3] their bats. [*§675] Jo Ellen was
taken to another room, where she was raped and sodo-
mized; at some point Jerry saw Dean Pueschel attempt
to draw a gun in self-defense, so Jerry hit Dean over
the head again with his bat. When both brothers went
back into the Pueschels’ bedroom to retrieve firearms
that they had discovered, they saw Dean begin to move
and stabbed him to death. Jo Ellen was taken out to
the Pueschels’ car, where she was forced to disarm the
car’s alarm system; she was then taken back into the
apartment and beaten in the head with the butt of a
pistol, which caused her death. This last beating oc-

ee

C4

curred in Richard’s presence, who had regained con-
sciousness by this point. Jerry wiped down the finger-
prints on everything that he and Reginald had touched
in the apartment. Leaving Richard for dead, the broth-
ers fled in the Pueschels’ car, taking with them jewelry,
guns, and video equipment that they had stolen. Rich-
ard survived the attack and was discovered by his
grandfather the next day, dazedly wandering in the
alley near his parents’ home.’

[**4] After receiving information from the Mahaffeys’
brother, Cedric, police arrested both Jerry and Regi-
nald. They confessed to authorities, and following a
joint trial at which only Reginald testified, both Jerry
and Reginald were convicted and sentenced to death.”
Jerry Mahaffey’s conviction and sentence were affirmed
on appeal and state post-conviction review, and he now
raises four arguments on appeal of the district court’s
denial of habeas corpus relief. First, he argues that the
prosecution’s exercise of its peremptory challenges at
trial violated his Fourteenth Amendment rights. See
Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106
S. Ct. 1712 (1986). Next, Mahaffey argues that the

* For a more detailed account of the facts of this crime, see
People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.2d 1172, 132 Iil.
Dec. 366 (Til. 1989).

* The Illinois Supreme Court reversed Reginald’s conviction
on direct appeal, holding that his case should have been sev-
ered in light of Jerry's confession and the fact that Jerry did
not testify at trial, which deprived Reginald of the ability to
cross-examine his brother. See People v. Mahaffey, 128 Ill. 2d
388, 539 N.E.2d 1172, 1183, 132 Ill. Dec. 366 (Ill. 1989). On
retrial, Reginald was again convicted and sentenced to death.
See People v. Mahaffey, 166 Ill. 2d 1, 651 N.E.2d 1055, 209 Ill.
Dec. 607 (1995).

5 aca bia

; C5

‘.

j prosecutor’s closing argument at the sentencing hearing
falsely implied that Mahaffey could receive a sentence
less than natural life imprisonment if the jury refused
to impose the death penalty. Mahaffey asserts that this
misrepresentation violated his rights under the Eighth
and Fourteenth Amendments. His third and fourth
arguments assert that he received ineffective assistance
from his trial counsel both at the sentencing hearing
and in arguing a motion to suppress his confession. We
will relate (**5] additional facts relevant to these argu-
ments in the context of our discussion.

II.

A. Batson Challenge

While Mahaffey’s case was pending in the Illinois
courts on direct review, the Supreme Court held in
Batson v. Kentucky; 476 U.S. 79, 96-98, 90 L. Ed. 2d
69, 106 S. Ct. 1712 (1986), that a prosecutor's discrimi-
natory use of peremptory challenges on the basis of
race could violate a defendant’s right to equal protec-
tion under the Fourteenth Amendment. Evaluation of
a Batson claim entails a three-step [**6] process. See
id. at 96. First, the defendant must make a prima facie
showing that the prosecution has exercised peremptory
challenges on the basis of race. If the defendant satis-
fies this threshold, the burden then shifts to the prose-
cution to articulate a race-neutral justification for the
disputed challenges. If a race-neutral explanation is
tendered, the court then must determine whether, in
light of the proffered justification, the defendant has
satisfied his burden of proving purposeful discrimina-
tion. See id. at 96-98; see also Purkett v. Elem, 514

———7~

C6

U.S. 765, 767, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995)
(per curiam); McCain v. Gramley, 96 F.3d 288, 290 (7th
Cir. 1996), cert. denied, 137 L. Ed. 2d 482, 117 S. Ct.
1320 (1997).

Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d
649, 107 S. Ct. 708 (1987), subsequently held that
Batson applied retroactively, and the Illinois Supreme
Court therefore directed the trial court in Mahaffey’s
case to conduct [*676] a hearing to determine whether
the prosecution had violated the Fourteenth Amend-
ment im employing its peremptory challenges. Mahaffey,
who is black, argued that the prosecution violated Bat-
son when it exercised peremptories on [**7] all seven of
the black veniremen who were considered for Ma-
haffey’s petit jury. See 539 N.E.2d at 1175. The trial
judge found that Mahaffey could not establish a prima
facie case of discrimination under Batson. The Illinois
Supreme Court affirmed this finding, see 539 N.E.2d at
1185, as did the district court below, see 978 F. Supp.
at 781-82. Mahaffey argues that the district court erred
in holding that he failed to establish a prima facie case,
and he further argues that he has established a case of
purposeful discrimination under Batson that entitles
him to a writ of habeas corpus. We reject this argument
and affirm the district court’s holding, though we em-
ploy a different analysis than the courts that previously
have addressed Mahaffey’s Batson claim.

1. Facts Relating to the Batson Claim

At the selection of Mahaffey’s jury, seven black ven-
iremen were presented for non-alternate seats following
challenges for cause. The State, which was given a total

i NEES Tee SR ee a ™
Pe Biaie Ptiaie we nase sale

C7

of 24 peremptory challenges (Jerry and Reginald Ma-
haffey were given 12 each), exercised a peremptory on
each of the seven black veniremen presented for the
jury, and also on six white veniremen. Mahaffey’s trial
counsel moved [**8] to dismiss the venire each time the
prosecution struck a black venireman, arguing that the
prosecution was improperly excluding blacks from the
jury. This motion was renewed at the conclusion of voir
dire, which had produced a jury composed of eleven
white jurors and one Asian juror.‘ The trial judge, who
had posed all of the questions to the potential jurors
during the voir dire, expressed concern regarding the
prosecution’s use of its peremptories and invited the
prosecution to come forward with race-neutral justifica-
tions for its exercise of peremptories. The prosecution
declined to do so, as it was entitled to do prior to
Batson, and the court denied Mahaffey’s motion to dis-
miss the venire.

While Mahaffey’s appeal was pending in the Illinois
Supreme Court, that court ordered the trial judge,
Thomas Hett, to (**9] conduct a Batson hearing to
address Mahaffey’s claim that the prosecution had
discriminated in exercising its peremptory challenges.
In accordance with the procedures outlined in Batson,
see 476 U.S. at 96-98, Judge Hett was directed to
permit Mahaffey to present evidence in support of his
claim of unconstitutional discrimination and, if the
court found that Mahaffey had established a prima

* The prosecution also had two peremptory challenges in the
selection of alternate jurors. It exercised both of them on white
veniremen, and a black venireman was subsequently seated as
an alternate.

C8

facie case of discrimination, to require the prosecution
to produce race-neutral justifications for the questioned
challenges. See 539 N.E.2d at 1175. In support of his
claim that the evidence established a prima facie case
under Batson, Mahaffey emphasized that, following
dismissals for cause, the prosecution used its peremp-
tory challenges to remove all of the black veniremen
presented for service on the jury. In addition, he argued
that the fact that the prosecution had exercised a ma-
jority of its peremptory challenges—by a seven to six
margin—on black veniremen further established a
prima facie case. Further, Mahaffey pointed out that
during the voir dire Judge Hett had asked the prosecu-
tion to explain the reasons for its use of its peremptory
challenges. Mahaffey argued that Judge Hett’s [**10]
concern was itself indicative of a prima facie case.

In response, Assistant State’s Attorney Paul Tsukono’
first argued that Mahaffey had not established a prima
facie case. In this regard, the prosecution pointed out
that it had accepted a black woman to serve as an
alternate juror, which it believed served to refute
Mahaffey’s discrimination claim. Further, the prosecu-
tion noted that, including the two peremptory chal-
lenges that it exercised in selecting alternate jurors, a
majority [*677] of its peremptories had been directed
towards white veniremen—by an eight to seven margin.

The Assistant State’s Attorney then proceeded to offer
non-discriminatory reasons for the prosecution’s exer-
cise of its peremptories. Tsukono prefaced his analysis:

° Tsukono had earlier participated in both the jury selection
and prosecution of Mahaffey’s case.

3
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s
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oi]

C9

“Now, the People’s challenges against the minority
jurors can be examined from two bases, I suggest in-
dividually and collectively. I suggest that there are
reasons which are revealed [**11] from the voir dire,
reasons which are apparent from the record which
justify the State’s challenges against these minority
jurors.” The prosecutor then proceeded to describe the
justifications for exercising peremptories against t’ °
stricken black veniremen, and he tied these justifica-
tions to each of them individually. Some prospective
jurors, for example, demonstrated an unwillingness to
impose the death penalty, even though they had not
been stricken for cause; some had also demonstrated an
unwillingness or an inability to follow instructions. The
prosecution also noted that it had exercised peremp-
tories on the bases of occupation, youth, prior experi-
ence with the police, reluctance to serve on the jury,
and prior knowledge of the Pueschels’ murders. All of
these justifications, the prosecution stated, had been
used to strike both black and white veniremen. Tsukono
also noted that, in light of the evolving nature of the
jury selection process, the prosecution used a sliding
scale of scrutiny in the determination of whether or not
a juror would be chosen or excluded. Reasons which
may have existed at the very beginning of this jury
selection may have been amended, excluded, or changed
(**12] due to the composition of those already selected,
the number of challenges used and the overall composi-
tion, or the overall totality of the circumstances con-
cerning that individual juror’s background. The prose-
cutor then concluded his argument by asserting that
Mahaffey had not made a prima facie showing under
Batson.

C10

In rebuttal, Mahaffey’s counsel argued that the prose-
cution had not only argued against a prima facie show-
ing, but that it had offered its nondiscriminatory jus-
tifications as well. He stated, “I believe, your Honor,
the prosecutor has crossed over from the first stage into
the second stage and has offered a great deal of expla-
nation on why there was in fact no exclusion of Blacks
on grounds of race.” Mahaffey’s counsel then argued
that at least some of the prosecution’s asserted justifi-
cations were pretextual. For example, while the prose-
cution asserted that reluctance to serve on the jury had
been a justification for some of its peremptory dismiss-
als, Mahaffey’s counsel argued that other white jurors
whom the prosecution had not dismissed had expressed
a similar reluctance to serve. Other asserted justifica-
tions were also pretextual, Mahaffey’s counsel argued,
or were [**13] not applied consistently by the prosecu-
tion to the black and white members of the venire.
Mahaffey’s counsel concluded by stating that Mahaffey
had established a prima facie case, though he requested
further opportunity to respond to the prosecution’s prof-
fered non-discriminatory justifications.

Judge Hett, in announcing his decision, indicated that
he had made a “detailed analysis of the jury selection
process” by reading and taking notes regarding the
entire transcript of the voir dire (which had spanned
seven days), along with copies of the jury cards for all
of the prospective jurors. In explaining his own detailed
analysis, Judge Hett noted that personal characteristics
(which the prosecution had not proffered as its race-
neutral justifications), such as gender, home ownership,
and marital status, were similar in comparing the eight
white veniremen who were stricken (including alter-

Cll

nates) with the seven black veniremen who were strick-
en. He further noted that those individuals seated on
the jury did not differ significantly from those who were
stricken with respect to these characteristics. He con-
cluded, “all of the people who were excused were sim-
ilar to the people who were [**14] chosen. The Whites
who were excused were similar to the Blacks who were
excused.”

At this point, Judge Hett went on to consider the
potential jurors’ responses to his voir dire questioning
in light of the prosecution’s asserted non-discriminatory
justifications. With respect to willingness to impose the
death penalty, for example, Judge Hett [*678] found
that “where there was any question raised by the juror
as to penalty, .. . there were four Whites and two
Blacks who were excused by the State.” Of the venire-
men who had previously been accused of crimes, Judge
Hett identified two white and one black veniremen, all
of whom were stricken.® In conclusion, Judge Hett
noted that, looking at the totality of the circumstances,
“I do not believe that there has been a showing, a
prima facie showing that the State exercised their chal-

6 The dissent expresses the view that, “rather than comparing
the excused African-Americans to the excused whites, . . . the
trial judge should have been comparing the excused African-
Americans to the whites who remained, for only through such
a comparison could the judge assess whether race played any
role in the State’s challenges.” Post at 41. While this observa-
tion is substantively cogent, we respectfully suggest that the
trial judge proceeded in the fashion that the dissent would
prescribe. As evidenced supra, Judge Hett’s underlying inquiry
reveals that he indeed considered the State’s justifications
with respect to the entire venire.

C12

lenges in a manner that showed racial discrimination.
They treated both the Blacks and the Whites who were
being excused in the same way. It is apparent in the
record that they used the same factors that I found as
to Whites, again as to Blacks.” Judge Hett therefore
concluded that Mahaffey had failed to establish a prima
facie case under Batson. [**15]

2. Discussion

Mahaffey argues that the lower courts erred in failing
to recognize that he established a prima facie case. Fur-
ther, he asserts that, notwithstanding the trial court’s
finding that he had not established an inference of
discrimination, the prosecution tendered its race-neu-
tral justifications to the court, and that these justifica-
tions are pretextual. Accordingly, Mahaffey asks us to
reverse the district court and grant him relief on his
Batson claim.

It is true that Judge Hett couched his decision in
the context of whether Mahaffey had established a
prima facie case. Moreover, the Illinois Supreme Court
grounded its analysis in the context of whether, con-
sidering “all relevant circumstances,” the trial court’s
prima facie case determination was against the mani-
fest weight of the evidence. See 539 N.E.2d at 1184.
The district court similarly rejected Mahaffey’s claim on
the basis that there was no reason to doubt the correct-
ness of Judge Hett’s factual finding regarding the exist-
ence of a prima facie case. See 978 F. Supp. at 781. It
is also true, however, as should be apparent from our
lengthy recitation of the Batson hearing proceedings,
that the State provided [**16] its race-neutral justifica-

i a

4
\
3

C13

tions for the use of its peremptory challenges.’ This fact

7 In both its brief to this Court and at oral argument, the
State contended that it never has offered race-neutral justifi-
cations for its peremptory challenges, solely because Mahaffey
never has established a prima facie case of discrimination.
This contention is clearly wrong factually, as Assistant State’s
Attorney Tsukono offered at the Batson hearing “reasons
which are apparent from the record which justify the State’s
challenges against these minority jurors.” Tsukono then dis-
cussed five of the seven stricken black veniremen individually,
discussing justifications such as a hesitancy regarding impo-
sition of a death sentence, or problems in following the court's
instructions. Further, he discussed justifications that applied
to more than one venireman, such as a prior knowledge of the
case, or a previous suspicion of criminal activity. These collec-
tive justifications applied to the two stricken black veniremen
that Tsukono had not discussed individually, in addition to the
five veniremen that he had previously discussed.

The State’s legal justification for its position is essentially
that, because it was not required under Batson to proffer race-
neutral justifications until Mahaffey established his prima
facie case, it necessarily could not have furnished those jus-
tifications before a prima facie case was established. This at-
tributes far more significance to Batson’s evidentiary burden-
shifting approach than it deserves. In Hernandez v. New York,
500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991), on
which the prosecution relies, the Supreme Court addressed a
case in which the prosecutor justified his peremptory challeng-
es before the trial court could decide whether a prima facie
case had been established. A plurality of the Court recognized
that “this departure from the normal course of proceeding
need not concern us. . . . ‘Where the [prosecutor] has done
everything that would be required of him if the [defendant]
had properly made out a prima facie case, whether the [de-
fendant| really did so is no longer relevant.’” Id. at 359
(quoting United States Postal Serv. Bd. of Governors Uv.
Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478
(1983)). This is because, as the Supreme Court has recognized
in the related context of Title VII's burden-shifting approach,
the prima facie case method was “never intended to be rigid,

(continued...)

C14

[(*679] was recognized by Mahaffey’s counsel at the
Batson hearing, see supra at 7-8, and by the Illinois
Supreme Court, see 539 N.E.2d at 1181 (“Finally, the
State gave its criteria for challenging the seven black
veniremen, asserting that the criteria were applied to
all veniremen, without regard to race.”).

[(**17] A plurality of the Supreme Court recognized in
Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d
395, 111 S. Ct. 1859 (1991), that when a prosecutor
offers race-neutral explanations for peremptory chal-
lenges and the trial court rules on the ultimate ques-
tion of intentional discrimination, the issue of whether
the defendant had satisfied his prima facie burden
becomes moot. See id. at 359. This Circuit has followed
that approach. See McCain v. Gramley, 96 F.3d 288,
292 (7th Cir. 1996), cert. denied, 137 L. Ed. 2d 482, 117

” (...continued)

mechanized, or ritualistic. Rather, it is merely a sensible, or-
derly way to evaluate the evidence in light of common experi-
ence as it bears on the critical question of discrimination.” See
Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed.
2d 957, 98 S. Ct. 2943 (1978).

Regardless of whether the State was required to provide its
race-neutral justifications at the Batson hearing, it certainly
did so. The State’s assertion that it did not provide those jus-
tifications simply because it was not required to do so lacks
any foundation in precedent or in fact. This error in analysis
is borne out by the district court’s recognition that “in many
cases, the prosecutor simply offers an explanation in response
to an objection which makes the prima facie case decision
unnecessary.” 978 F. Supp. at 781. Moreover, as Mahaffey
suggests, the implication that the State could develop new jus-
tifications at this late date, after the State has already pro-
vided justifications for its challenges, would serve to pervert
Batson’s burden-shifting framework.

C15

S. Ct. 1320 (1997); United States v. Cooper, 19 F.3d
1154, 1160-61 (7th Cir. 1994); see also Matthews v.
Evatt, 105 F.3d 907, 918 (4th Cir.) (following the same
approach), cert. denied, 118 S. Ct. 102, 139 L. Ed. 2d 57
(1997); Johnson v. Love, 40 F.3d 658, 663-64 (3d Cir.
1994) (same); United States v. Johnson, 941 F.2d 1102,
1108 (10th Cir. 1991) (same). This approach makes
good sense, in light of the fact that the ultimate ques-
tion always remains whether the opponent of the strike
has satisfied the burden of persuasion regarding pur-
poseful discrimination. See Purkett v. Elem, 514 U.S.
765, 768, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995) (per
curiam); cf. St. Mary’s Honor Ctr. v. [**18] Hicks, 509
U.S. 502, 510-11, 125 L. Ed. 2d 407, 113 S. Ct. 2742
(1993).

While Mahaffey makes a strong argument that he
established a prima facie showing, we need not consider
this issue, as the prosecution bypassed this stage by
profiering its non-discriminatory reasons. It is evident
from the Batson hearing transcript that Judge Hett
considered the prosecution’s justifications and conclud-
ed, in light of the “totality of the circumstances,” that
the prosecution had not exercised its peremptory chal-
lenges in a racially discriminatory manner. Assistant
State’s Attorney Tsukono provided justifications, such
as an unwillingness to impose the death penalty, an
inability to follow instructions, or a prior run-in with
the police. Judge Hett conducted his own “detailed
analysis” of the voir dire and discussed the State’s
justifications in the context of its use of peremptory
challenges at voir dire. With respect to these justifica-
tions, Judge Hett found that the State’s dismissals
transcended racial lines. In conjunction with his knowl-

C16

edge and recollection of the voir dire (at which he had
expressed concern regarding the prosecution’s use of its
peremptories), as well as his prior interactions [**19]
with Tsukono as a prosecutor—the totality of the cir-
cumstances—Judge Hett concluded that Mahaffey had
not established purposeful discrimination. The fact that
the judge couched his finding in the context of a “prima
facie showing” is of no consequence. Evidence that is
insufficient to establish even an inference of discrimina-
tion is certainly not sufficient to meet the opponent of
the strike’s ultimate burden of persuasion in proving
purposeful discrimination. See McCain, 96 F.3d at 293.
The trial judge considered all of the evidence that was
available to him, along with his personal recollections
regarding the prosecution’s demeanor and approach at
the voir dire. Indeed, in light of the concerns he ex-
pressed at voir dire, the judge conducted a painstaking,
thoroughly detailed analysis, and only then concluded
that Mahaffey was unable to establish discriminatory
motive on the part of the prosecution.

[*680] A trial court’s decision on the ultimate ques-
tion of discriminatory intent constitutes a finding of
fact that we review with great deference on appeal.See
Hernandez, 500 U.S. at 364; id. at 372 (O’Connor, J.,
joined by Scalia, J., concurring in the judgment). On
federal habeas review, [**20] the factual findings of a
state trial court “shall be presumed to be correct.” 28
U.S.C. § 2254(d) (1994); see also Splunge v. Clark, 960
F.2d 705, 708 (7th Cir. 1992). Aside from the statutory
command of § 2254(d) in this context, deference to the
trial court on the issue of discriminatory intent makes
good sense, as the Court recognized in Hernandez:

C17

The finding largely will turn on evaluation of
credibility. In the typical peremptory challenge
inquiry, the decisive question will be whether coun-
sel’s race-neutral explanation for a peremptory chal-
lenge should be believed. There will seldom be
much evidence bearing on that issue, and the best
evidence often will be the demeanor of the attorney
who exercises the challenge. As with the state of
mind of a juror, evaluation of the prosecutor’s state
of mind based on demeanor and credibility lies
peculiarly within a trial judge’s province.

500 U.S. at 365 (quotations and citations omitted). Un-
like an appellate court, which must rely solely on a
paper record, the trial court is in a unique position to
review the credibility and demeanor of both the attor-
neys and the prospective jurors. See, e.g., United States
v. Cooper, 19 F.3d 1154, [**21] 1161 (7th Cir. 1994).

As we have discussed, Judge Hett considered in detail
th p>rosecution’s racé-neutral justifications, conducted
his own analysis regarding whether any of these justi-
fications were pretextual, and concluded that Mahaffey
had not shown racial discrimination. Moreover, the IIli-
nois Supreme Court fully considered the trial court’s
treatment of the Batson hearing and concluded: “The
record shows that the trial judge used his experience,
as well as his superior knowledge of local conditions
and prosecutors, in determining that the State’s per-
emptory challenges were not motivated by impermissi-
ble racial-group bias. We see no reason to disturb this
finding.” 539 N.E.2d at 1185. We are similarly unaware
of any reason to disturb the presumption of correctness
that we are statutorily required to accord the state
court’s factual finding. See, e.g., Pitsonbarger v. Gram-
ley, 141 F.3d 728, 734 (7th Cir. 1998), petition for cert.

C18

filed, U.S.L.W. (U.S. July 8, 1998) (No. 98-5153). We
therefore reject Mahaffey’s Batson claim.

B. Prosecutorial Misconduct at Mahaffey’s Sentencing
Hearing

1. Facts

Mahaffey testified in his own behalf at his sentencing
hearing. [**22] The prosecution’s questioning of Ma-
haffey revealed that, while he was awaiting trial, he
had participated in an armed escape from the Cook
County jail and had been apprehended two days later.
When asked whether he would attempt to escape again,
Mahaffey replied, “I don’t know.”

During his closing argument, Mahaffey’s counsel re-
peatedly requested the jury to resist imposing a death
sentence so that Mahaffey could instead spend the rest
of his life in prison.* Mahaffey’s counsel posed this re-
quest to the jury on five occasions in his closing argu-
ment, making comments such as: “That is why I am
here now, still pleading with you not to let Jerry free
but to live the rest of his life in the penitentiary, not as
a free man, as a prisoner, but still a man.” In response,
the prosecutor argued to the jury: When they tell you
that they will spend the rest of their lives in prison,
there is no guarantee. There is no guarantee, ladies
and gentlemen, not only because of what the law may

* Under Illinois law, a mandatory sentence of life imprison-
ment without the possibility of parole (or “natural life”) was
the only alternative to a death sentence in this case, because
Mahaffey had been convicted of murdering two people. See 730
Ill. Comp. Stat. 5/5-8-1(a).

LS ee a as a ,

C19

say but because of what you heard from the witness
stand. The prosecutor further told the jury that, if it
did not sentence the Mahaffey brothers to death, “You
will be letting them go because [*681] you will be
turning [**23] your back on the law and justice. They
will be let go.” Mahaffey requested that the trial judge
instruct the jury that if it did not sentence him to
death, the court was required by statute to sentence
him to a term of life without parole. The court, how-
ever, refused to give this instruction.

2. Discussion

Mahaffey appears to make two related due process
arguments in this context. We review these claims de
novo, the standard of review that prevailed before the
AEDPA became effective. See, e.g., Abrams v. Barnett,
121 F.3d 1036, 1038 (7th Cir. 1997). His first argument
relies upon the prosecutor’s comment that there was
“no guarantee” that Mahaffey would spend the rest of
his life in prison “not only because of what the law may
say,” [**24] along with his comment that, if the jury
failed to impose the death penalty, Mahaffey “will be
let go.” Mahaffey contends that these statements im-
plied that, by law, he could at some point in the future
be released or paroled from prison. Relying on our
opinion in Del Vecchio v. Illinois Department of Correc-
tions, 31 F.3d 1363, 1385 (7th Cir. 1994) (en banc), cert.
denied, 514 U.S. 1037, 131 L. Ed. 2d 290, 115 S. Ct.
1404 (1995), he argues that this implication “raises the
possible inference that there was a ‘careless or designed
pronouncement of sentence on a foundation [that was]
extensively and materially false.’” Id. (quoting Town-

a

C20

send v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S.
Ct. 1252 (1948)).

The prosecution’s comment that “there is no guaran-
tee ... because of what the law may say,” is subject to
a number of differing interpretations. Both the Illinois
Supreme Court and the district court below construed
the prosecution’s comment to refer to Mahaffey’s pre-
vious escape from jail and his response that he did not
know whether he would attempt to escape again. See
978 F. Supp. at 778; 539 N.E.2d at 1192. Further, the
district court stated that the “argument that anything
[**25] less than the death penalty will be a letting go
of defendant was nothing more or less than a comment
that the death penalty was the only just and legally
correct sentence.” 978 F. Supp. at 778. This is a reason-
able interpretation of this disputed comment. Even if
we were to disregard these reasonable interpretations
of the prosecution’s comments and accept those asserted
by Mahaffey, as in Del Vecchio, “this would not be
enough to overturn the death sentence.” 31 F.3d at
1385. The prosecution’s contested statements were not
“extensively and materially false,” as the prosecution
never explicitly stated that Mahaffey could be eligible
under Illinois law for parole or release. See id. (quoting
Townsend, 334 U.S. at 741). Further, in light of the
evidence of Mahaffey’s prior escape and his equivocal
response at the sentencing hearing regarding future
escape attempts, the jury already was aware of the risk
that, at some point in the future, Mahaffey could be
loosed upon the public. It is accordingly “questionable
whether the jury relied on [the contested statements] in
its ‘pronouncement of sentence.’” See id. Because Ma-
haffey has not established that the challenged state-

C21

ments were inaccuracies [**26] of “constitutional mag-
nitude,” see United States v. Tucker, 404 U.S. 443, 447,
30 L. Ed. 2d 592, 92 S. Ct. 589 ( 1972), we reject this
formulation of his due process challenge.

Mahaffey’s second related argument incorporates into
the above analysis the fact that the trial court refused
to allow him—either through argument or an instruc-
tion—to explain to the jury that the only alternative to
a death sentence was a sentence of natural life. Ma-
haffey argues that the prosecution’s implication that
Mahaffey could ultimately be released from prison and
pose a threat to society, combined with Mahaffey’s in-
ability to inform the jury of the only statutory alter-
native, served to deprive him of due process. This argu-
ment evokes the rule of Simmons v. South Carolina,
512 U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994).
Simmons held that when the prosecution argues to a
capital defendant’s sentencing jury that the defendant
represents a future danger, the defendant must be per-
mitted to inform the jury that he would not be eligible
for parole, so long as the only statutory alternative to
a death sentence is imprisonment without possibility of
parole. See id. at 169; id. at 177 [*682] (O’Connor, J.,
(**27] concurring in the judgment). Wisely, Mahaffey
does not explicitly rely on Simmons in his briefs to this
Court. That is because O’Dell v. Netherland, 521 U.S.
151, 138 L. Ed. 2d 351, 117 S. Ct. 1969, 1977-78 (1997),
held that Simmons announced a new rule within the
meaning of Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d
334, 109 S. Ct. 1060 (1989); our Circuit had previously
reached this same conclusion in Stewart v. Lane, 60
F.3d 296, 299-303 (7th Cir. 1995), cert. denied, 518
U.S. 1033 (1996). The fact that Mahaffey does not ex-

C22

plicitly rely on Simmons, however, does nothing to alter
Teague’s principle of the nonretroactivity of new rules.
Mahaffey’s conviction became final in 1990, when the
Supreme Court denied certiorari on direct review. He
therefore cannot benefit from the rule of Simmons,
which the Court announced in 1994. Thus, we reject
this variant of his due process claim as well.

C. Ineffective Assistance of Trial Counsel

Mahaffey argues that his trial counsel, Steven Deck-
er, provided ineffective assistance in two ways. First, he
argues that Decker failed to investigate and introduce
evidence at a pretrial suppression hearing regarding
Mahaffey’s confession. Second, he argues that [**28]
Decker failed to investigate and introduce potentially
mitigating evidence at his sentencing hearing. To pre-
vail on either of these claims, Mahaffey must satisfy
the familiar standards of Strickland v. Washington, 466
U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). This
test requires him to demonstrate both deficient per-
formance by his trial counsel and prejudice as a result
of the deficiency. See id. at 694.

In order to establish deficient performance, a defen-
dant must demonstrate that he has been denied his
Sixth Amendment right to a fair trial as the result of
the incompetence of defense counsel. See, e.g., Edd-
monds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996),
cert. denied, 117 S. Ct. 1441, 137 L. Ed. 2d 548 (1997).
“This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. In this context, we do not

Ree a)

C23

second-guess defense strategies that were sound or
reasonable at the time of the trial simply because they
ultimately proved unsuccessful. Rather, “counsel must
contest the prosecution’s case and advance a good de-
fense; if that role has been fulfilled, a writ of habeas
(**29] corpus should not issue.” Holman v. Gilmore, 126
F.3d 876, 882 (7th Cir. 1997), cert. denied, 118 S. Ct.
1169, 140 L. Ed. 2d 179 (1998).

To establish prejudice under Strickland, a defendant
must satisfy a similarly high threshold. “{A] criminal
defendant alleging prejudice must show ‘that counsel’s
errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.’” Lockhart v.
Fretwell, 506 U.S. 364, 369, 122 L. Ed. 2d 180, 113 S.
Ct. 838 (1993) (quoting Strickland, 466 U.S. at 687); see
also Eddmonds, 93 F.3d at 1313 (“Prejudice in the
Strickland sense refers to ‘unprofessional errors’ so
egregious ‘that the trial was rendered unfair and the
verdict rendered suspect.’”) (quoting Kimmelman v.
Morrison, 477 U.S. 365, 374, 91 L. Ed. 2d 305, 106 S.
Ct. 2574 (1986)). In the context of ineffective assistance
at the penalty phase of a capital case, we have noted
that prejudice requires a showing “that a reasonable
probability exists that, but for counsel’s substandard
performance, the sentencer ‘would have concluded that
the balance of aggravating and mitigating circumstanc-
es did not warrant death.’” Hall v. Washington, 106
F.3d 742, 749 (7th Cir.) (quoting Strickland, [**30] 466
U.S. at 695), cert. denied, 139 L. Ed. 2d 190, 118 S. Ct.
264 (1997). Reviewing Mahaffey’s claims de novo, we
conclude that neither of them can satisfy the above
standards.

C24

1. Ineffective Assistance at the Suppression Hearing

Mahaffey raised two arguments at his pretrial sup-
pression hearing. First, he argued that he did not un-
derstand the Miranda warnings that were given to him
by the police, and therefore he did not knowingly and
intelligently waive his right to counsel prior to confess-
ing. Second, he argued that he was physically coerced
into giving this [*683] confession because he was “bru-
talized” by the police. Mahaffey’s wife corroborated his
account. She stated that when police came to Mahaf-
fey’s apartment to arrest him she was ushered outside;
while outside, she heard her husband screaming and
the sounds of furniture being thrown around. In an at-
tempt to explain away the confession’s detailed recita-
tion of the facts surrounding the Pueschels’ murders,
Mahaffey contended that police spoon-fed him the de-
tails of the crime over a period of two hours following
his arrest. His twenty-page confession, Mahaffey tes-
tified, was the result of his memorizing information
that had been [**31] provided to him by the police.

Mahaffey now argues that Decker, his trial counsel,
provided ineffective assistance at the suppression hear-
ing by failing to have Mahaffey examined by a clinical
psychologist. Mahaffey’s counsel at the state post-con-
viction stage did have Mahaffey examined by a psychol-
ogist, Dr. Harry Gunn, who concluded that Mahaffey
was mildly retarded, could barely read, and most likely
could not have understood his Miranda rights when
they were given to him. Mahaffey asserts that there is
a reasonable probability that his confession would have
been suppressed if this testimony had been presented,
and that the outcome of his trial would have been dif-
ferent if the statement had been suppressed.

C25

Decker submitted responses to written interrogatories
in connection with an evidentiary hearing conducted in
the district court to address Mahaffey’s ineffective
assistance claims. In response to questions about the
advisability of presenting evidence of mental retarda-
tion at the suppression hearing, Decker stated that he
never “discerned anything whatsoever that [Mahaffey]
was unable to read.” Further, Decker thought that such
evidence would be questionable “given [Mahaffey’s]
(**32] written statements and my other knowledge as
to his abilities to understand and communicate.” Deck-
er’s impression of Mahaffey’s cognitive abilities is but-
tressed by the perception of others; Mahaffey’s sister
described him as someone who “presented himself as
though he had all this knowledge.” The district court
judge, who observed Mahaffey and heard him testify at
the evidentiary hearing held in connection with Ma-
haffey’s ineffective assistance claims, also commented
on the impression Mahaffey made: If the Jerry Ma-
haffey I saw in 1997 is like the Jerry Mahaffey that
Steven Decker saw in the mid-1980s, then Decker is not
to be faulted for failing to consider mental retardation.
Prior to his arrest Mahaffey was employed full time,
living with his family and reasonably capable of holding
his own under examination. 978 F. Supp. at 770. At the
time of the suppression hearing, there was no reason to
question Mahaffey’s mental abilities, and we cannot say
that Decker’s failure to pursue such psychological evi-
dence amounted to “gross incompetence.”

In the context of Mahaffey’s physical coercion argu-
ment, Mahaffey argues that Decker provided ineffective
assistance by not interviewing and presenting [**33]
the testimony of Mahaffey’s neighbor, Charles Pat-

C26

terson. Patterson would have testified that he heard
screaming, thuds, and other similar sounds coming
from Mahaffey’s apartment at the time of the arrest
that suggested that someone was being beaten. Oppos-
ing Mahaffey’s physical coercion argument, the prose-
cution presented testimony of Mahaffey’s arresting
police officers, all of whom denied any instances of bru-
tality. In addition, the two Assistant State’s Attorneys
who took Mahaffey’s confession testified that Mahaffey
had not complained of any brutality and that they saw
no physical evidence of mistreatment during their con-
tact with Mahaffey. The medical technician who pre-
pared Mahaffey’s intake report at the Cook County jail
similarly noted that there was no evidence or com-
plaints of physical brutality. Finally, the prosecution
presented a photograph taken of Mahaffey at the time
he gave his confession which, the district court below
noted, contains “no sign of the substantial injury he
claimed was inflicted by a blow to his nose.” 978 F.
Supp. at 776.

The trial court considered this testimony, along with
the testimony given by Mahaffey and his wife, and con-
cluded that “the great [**34] weight of the evidence”
refuted Mahaffey’s [*684] claims of brutality and that
“overwhelming evidence” refuted Mahaffey’s Miranda
violation claim. In this context, we do not believe that
there is a reasonable probability that the result of the
suppression hearing would have been different if Ma-
haffey’s neighbor Charles Patterson had been called to
testify. See, e.g., Wright v. Gramley, 125 F.3d 1038,
1041 (7th Cir. 1997). Although Patterson heard sounds
coming from Mahaffey’s apartment, he states that he
never saw Mahaffey at the time of his arrest. The trial

ewe

C27

judge found the testimony of the prosecution’s witness-
es credible, and it is unlikely that Patterson, without
having seen physical evidence that Mahaffey was bru-
talized, would have altered the court’s analysis. Thus,
we conclude that Mahaffey is unable to demonstrate
prejudice under Strickland for his trial counsel’s failure
to present Patterson’s testimony.

2. Ineffective Assistance at the Sentencing Hearing

As mandated by the Constitution, see Lockett v. Ohio,
438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954
(1978), the Illinois death penalty statute requires the
sentencer to consider all mitigating factors relevant to
imposition [**35] of a sentence of death. See III. Comp.
Stat. 5/9-1(c). Accordingly, competent representation
demands that defense counsel present an argument
that focuses the attention of the jury on any mitigating
factors. See, e.g., Kubat v. Thieret, 867 F.2d 351, 369
(7th Cir.), cert. denied, 493 U.S. (1989). Like other stra-
tegic decisions, a defense counsel’s reasonable choice to
omit certain mitigating evidence in favor of alternative
arguments does not render his assistance ineffective.
See id. at 368. In the instant case, Mahaffey’s trial
counsel adopted a strategy of pleading for the jury’s
mercy at the sentencing hearing. As a general matter,
we have recognized that “(a] simple plea for mercy may
be a valid choice, if that plea focuses on the particular
defendant and the circumstances of the particular
offense.” Hall v. Washington, 106 F.3d 742, 750 (7th
Cir.), cert. denied, 139 L. Ed. 2d 190, 118 S. Ct. 264
(1997); see also Eddmonds v. Peters, 93 F.3d 1307, 1322
(7th Cir. 1996), cert. denied, 117 S. Ct. 1441, 137 L. Ed.
2d 548 (1997).

C28

The mitigation evidence presented at Mahaffey’s sen-
tencing hearing consisted of the testimony of three of
his relatives—his wife, his mother, and his sister—as
well as the [**36] testimony of Mahaffey himself. Ma-
haffey’s mother related the difficult circumstances of
her son’s upbringing in a “rough” and “violent” neigh-
borhood, and she told the jury of Mahaffey’s loving
relationship with his family. She further said that her
son’s death would affect her “very much... because I
am a mother, and I love him deeply, and his presence
would be missed.” Mahaffey’s wife testified similarly
and told the jury of his close relationship with her and
their children. Mahaffey testified and told the jury that
his family would miss him if he were sentenced to
death, and he discussed his desire to live: “I’m a human
being. I have feelings. I have a heart. I desire to live.”
Mahaffey’s counsel presented a coherent closing argu-
ment to the jury, discussing, among other things, the
unplanned manner in which the Mahaffey brothers had
arrived at the Pueschels’ apartment and contrasting
their crimes with a murder-for-hire. Decker also dis-
cussed the nature of punishment and argued that the
jury should act mercifully and not be responsible for an
individual’s death. In addition, he focused the jury on
the mitigation evidence that had been presented, stat-
ing that Mahaffey “has a family, [**37] he has a wife
who loves him and children who depend on him, chil-
dren who want him to remain alive in the penitentiary,
a wife who wants him to remain alive in the peniten-
tiary.”

When considered in the context of the other available
strategic alternatives, which we discuss infra, we do not
believe that Decker’s performance at sentencing fell

wi aie ne

i Peres ae , go sagik i a or eee

C29

below the level of reasonable competence. This case is
not like Hall, in which the defense counsel’s closing
argument to the sentencing judge “relied upon sweeping
and largely irrelevant appeals to the judge’s personal
beliefs and religious principles.” 106 F.3d at 750. Here,
Decker’s presentation focused specifically on Mahaffey’s
situation and the impact that a sentence of death would
have on Mahaffey’s family. In addition, our holding
(*685] in Hall was not based solely upon “counsel’s
failure in his closing argument to offer any reason other
than blatant disregard of Illinois law for sparing Hall’s
life,” id. at 749, a shortcoming which is not implicated
in the instant case in any event. We also premised our
holding in Hall upon the “total failure” of Hall’s attor-
neys “to contact Hall in preparation for the sentencing
hearing and their consequent [**38] failure to present
his mitigation witnesses.” Id. In this context, Mahaffey
contends that Decker failed to prepare competently for
the sentencing hearing, the issue to which we now turn.

Mahaffey argues that Decker provided ineffective as-
sistance because he failed to obtain Mahaffey’s school
records and to investigate his mental health so that
this evidence could be used in mitigation at the sen-
tencing hearing. Decker’s responses to the interroga-
tories posed by Mahaffey in connection with the evi-
dentiary hearing stated that Decker was aware that
Mahaffey “didn’t have a stellar school record” and had
only completed the eighth grade. This awareness,
Mahaffey contends, should have compelled Decker to
obtain the school records in the hope of learning more
about Mahaffey’s mental state. Mahaffey’s post-con-
viction counsel obtained these school records, which
indicated that Mahaffey had an IQ of 64 when he was

C30

ten years old, was transferred to a special education
school when he was in the sixth grade, and had serious
difficulties reading and spelling. Mahaffey argues that
the information contained in these records would have
compelled Decker to conduct further investigation into
his mental [**39] health. Cf. Stewart v. Gramley, 74
F.3d 132, 135 (7th Cir.) (recognizing that it constitutes
ineffective assistance to fail to conduct further inves-
tigation into a defendant’s mental status when it is
apparent from readily available evidence that the
defendant has “some mental or other condition that will
repay further investigation”), cert. denied, 136 L. Ed.
2d 65, 117 S. Ct. 113 (1996).

Further investigation, Mahaffey contends, would have
included a psychological evaluation, such as the one
ultimately conducted by Dr. Gunn, that would have
revealed that Mahaffey is mentally retarded and suffers
from “borderline personality disorder.” Mahaffey argues
that if this mitigating evidence had been introduced,
there is a reasonable probability that at least one of the
twelve jurors who sentenced him would have refused to
impose a death sentence. See Emerson v. Gramley, 91
F.3d 898, 907 (7th Cir. 1996), cert. denied, 117 S. Ct.
1260, 137 L. Ed. 2d 339 (1997). He therefore asserts
that Decker provided ineffective assistance in failing to
unearth this evidence and present it to the jury. See
Hall, 106 F.3d at 749-50 (“Where it is apparent from
evidence concerning the crime itself, from conversation
with [**40] the defendant, or from other readily avail-
able sources of information, that the defendant has
some mental or other condition that would likely qual-
ify as a mitigating factor, the failure to investigate will
be ineffective assistance.”).

C31

The Constitution requires defense counsel in a capital
case to conduct a reasonable investigation into potential
mitigating factors. See, e.g., Strickland, 466 U.S. at
691; Stewart, 74 F.3d at 135. A “reasonable investiga-
tion” does not mandate a “scorch-the-earth strategy,”
see Hall, 106 F.3d at 749, a requirement that would fail
to consider the limited time and resources that defense
lawyers have in preparing for a sentencing hearing. See
Stewart, 74 F.3d at 135. Rather, the contours of a
reasonable investigation are dictated by the circum-
stances of each case, including the facts of the crime,
conversations with the defendant and others familiar
with him, and other readily available sources of in-
formation, such as trial testimony. See, e.g., Hall, 106
F.3d at 749-50; Stewart, 74 F.3d at 135. While this
evidence will in some cases indicate that further in-
vestigation would be beneficial, “in other cases, where
these indications are, lacking, counsel [**41] may ‘rea-
sonably surmise from his conversations with [the de-
fendant] that character and psychological evidence
would be of little help.’” Id. (quoting Strickland, 466
U.S. at 698) (alteration in original). In this context, we
recently have noted that “it is reasonable for a lawyer
to place a certain reliance on his client, so that if the
client and his family and friends throw the lawyer off
the scent, . . . the lawyer cannot be faulted for failing
to go [*686] down the path thus closed off.” Thomas v.
Gilmore, 144 F.3d 513, 515 (7th Cir. 1998).

Mahaffey’s argument can be interpreted as claiming
ineffective assistance on two distinct bases. The first
asks us to establish a per se rule that a capital defen-
dant’s lawyer must always obtain available institution-
al records, such as school records, that might give rise

C32

to evidence of mitigating factors. We addressed this
argument recently in Thomas, where the petitioner
argued that his defense lawyer provided ineffective
assistance by failing to subpoena his prison and school
records and submit them to a psychiatrist for evalu-
ation. Cognizant of the prevailing view that a deter-
mination of ineffectiveness typically depends on the
circumstances [**42] of each case, see id. at 516, we
recognized that such a per se rule would constitute a
new rule within the meaning of Teague v. Lane, 489
U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).
Because we may not grant relief in habeas corpus pro-
ceedings on the basis of a new rule, see id., we declined
to decide whether the failure to subpoena institutional
records was per se ineffective. See Thomas, 144 F.3d at
516. The same considerations apply in the instant case,
and we are unable to grant relief upon Mahaffey’s con-
tention that a defense counsel’s failure to obtain school
records necessarily renders his assistance incompetent.
Although the State did not raise Teague, we may in-
voke its rule even when the State has waived it. See,
e.g., Thomas, 144 F.3d at 516; Winsett v. Washington,
130 F.3d 269, 274 (7th Cir. 1997).

This leaves Mahaffey’s contention that, given the cir-
cumstances of this particular case, Decker’s failure to
subpoena the school records fell below professional
norms. In this context, Mahaffey relies upon the evi-
dence that was apparent to Decker: Mahaffey “didn’t
have a stellar school record,” he had only completed the
eighth grade, and he contended that he was unable
{**43] to understand his Miranda warnings (a conten-
tion that Decker advanced at the suppression hearing).
Mahaffey argues that this evidence should have led

C33

Decker to further investigate Mahaffey’s mental state.
See, e.g., Hall, 106 F.3d at 749-50. As part of the
district court’s hearing on Mahaffey’s ineffectiveness
claims, Decker responded to interrogatories regarding
his preparation for the sentencing hearing. Decker
stated that he asked both Mahaffey and his mother
about Mahaffey’s mental health history, and that both
of them denied that Mahaffey had any mental prob-
lems.’ More importantly, Decker’s extensive conver-
sations and contacts with Mahaffey led him to believe
that investigation into Mahaffey’s mental state was
unwarranted. Decker testified that throughout the trial,
he discussed strategy with Mahaffey and showed him
police reports and documents, none of which Mahaffey
had trouble understanding. Decker also considered
Mahaffey’s lengthy written confession, which Mahaffey
had read and corrected. Based upon these factors, Deck-
er stated that he had.no indication that further investi-
gation into Mahaffey’s mental condition would have
produced any mitigating evidence. This assessment
(**44] of Mahaffey is consistent with that made by
Mahaffey’s own sister, who stated that “J erry presented
himself as though he had all this knowledge.”

We must also consider in this context the factual find-
ings of the district court judge, who had an opportunity

* While the extent to which Decker prepared Mahaffey’s
mother for the sentencing hearing was disputed in the district
court, the district judge credited Decker’s testimony that he
prepared Mahaffey’s mother to testify. See 978 F. Supp. at
770. We must defer to such findings of fact made by the dis-
trict court unless they are clearly erroneous. See, e.g., Griffin
v. Camp, 40 F.3d 170, 172 (7th Cir. 1994). In any event,
Mahaffey does not challenge on appeal the truthfulness of this
aspect of Decker’s account.

C34

to observe and listen to Mahaffey at the evidentiary
hearing. As we have discussed, in assessing Mahaffey’s
testimony, the district judge found that “if the Jerry
Mahaffey I saw in 1997 is like the Jerry Mahaffey that
Steven Decker saw in the mid-1980s, [**45] then Deck-
er is not to be faulted for failing to consider mental re-
tardation.” 978 F. Supp. at 770. We must accept the
district court’s finding in this regard, as Mahaffey has
presented us with no evidence to indicate that it is
erroneous. As the district court found, “nothing in his
client’s demeanor [*687] or actions showed Steven
Decker that his client had a mental condition that
would mitigate sentence.” 978 F. Supp. at 770. These
observations were corroborated by Decker’s discussions
with Mahaffey’s family, which similarly gave Decker no
reason to believe that further investigation would prove
fruitful.

We therefore conclude that Decker engaged in a rea-
sonable investigation into Mahaffey’s mental state, as
there was nothing apparent to indicate to Decker that
further investigation was warranted. The mere fact of
Mahaffey’s poor scholastic record, which in many cases
can be attributed to factors other than mental or psy-
chological difficulties, is insufficient to require an all-
out campaign to uncover mitigating psychological evi-
dence. Decker did consider his first-hand impressions of
Mahaffey, along with his conversations with Mahaffey’s
family members, and came upon a dead end. Cf.
Thomas, [**46] 144 F.3d at 515.

In this way, this case is quite unlike the situation in
either Hall, supra at 23, or Eddmonds v. Peters, 93
F.3d 1307, 1323 (7th Cir. 1996), cert. denied, 117 S. Ct.
1441, 137 L. Ed. 2d 548 (1997), in which a majority of

aaa

the Court concluded that defense counsel performed in-
competently by failing to investigate mitigating psy-
chological evidence. In Eddmonds, there was a discov-
ery file in the defense counsel’s possession that con-
tained substantial indications of mental illness, such
that “even a cursory review of Eddmonds’ file would
have revealed long-standing, complex, and often severe
mental problems.” Jd. at 1324, There is no comparable
evidence of mental retardation or illness in this case.
Thus, we are unable to characterize Decker’s failure to
uncover more evidence than he did as falling below the
minimum standards of professional competence re-
quired by the Sixth Amendment. Because Mahaffey is
unable to satisfy the first prong of Strickland, see 466
U.S. at 694, we reject this ineffective assistance claim.”

'° The district court, after finding that Decker had performed
competently with respect to the sentencing hearing, nonethe-
less went on to consider whether Mahaffey could establish
prejudice under Strickland. See 978 F. Supp. at 771. The court
found that Mahaffey could not establish the required element
of prejudice in any event. See id. at 771-74. Because we con-
clude that Decker’s performance was not constitutionally defi-
cient, we need not consider the prejudice element. See Strick-
land, 466 U.S. at 697. However, we note that, while we have
in some cases held that a failure to obtain and present miti-
gating psychological evidence at sentencing was prejudicial,
see, e.g., Emerson v. Gramley, 91 F.3d 898, 907 (7th Cir.
1996), cert. denied, 117 S. Ct. 1260, 137 L. Ed. 2d 339 (1997),
we have concluded in other cases that such a failure in perfor-
mance was not prejudicial. See, e.g., Thomas, 144 F.3d at 516-
18; Eddmonds, 93 F.3d at 1319-22. A determination of preju-
dice will depend on the facts of each case, along with the
strength of the mitigation evidence that could have been in-
troduced. Cf. Thomas, 144 F.3d at 518.

C36
(**47] III.

Mahaffey has not established constitutional error
with respect to either his conviction or sentence. We
therefore affirm the judgment of the district court.

DISSENT BY: ROVNER

DISSENT: ROVNER, Circuit Judge, dissenting. In se-
lecting the jury that would decide Jerry Mahaffey’s
fate—whether he was guilty of murdering Jo Ellen and
Dean Pueschel, and whether he should be put to death
for those murders—two prosecutors representing the
State of Illinois exercised peremptory challenges to
exclude the only seven African-American members of
the jury venire. Mahaffey thus was convicted and ulti-
mately sentenced to death by a jury comprised of eleven
whites and one Asian-American. Fortunately for Mahaf-
fey, the United States Supreme Court decided Batson
v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct.
1712 (1986), while his direct appeal to the Illinois Su-
preme Court was pending. That court thus remanded
Mahaffey’s case, ordering the trial court to conduct a
hearing and to determine whether jury selection here
complied with the constitutional mandate of the Batson
decision. After conducting that hearing, the state trial
judge concluded that Mahaffey had failed to establish
a prima facie (**48] case of discrimination under Bat-
son. The Illinois Supreme Court affirmed on that basis,
and [*688] the federal district court subsequently de-
clined to issue a writ of habeas corpus. In finding no
Batson violation in the selection of Mahaffey’s jury,
both the state supreme court and the federal district

C37

court effectively deferred to the trial court’s conclusion
that Mahaffey had failed to establish a prima facie
case. See People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.
2d 1172, 1184-85, 132 Ill. Dec. 366 (Ill. 1989), cert. de-
nied, 497 U.S. 1031 (1990); United States ex rel. Ma-
haffey v. Peters, 978 F. Supp. 762, 781-82 (N_D. Ill.
1997).

Today’s majority is understandably uncomfortable
with that conclusion, however, for it essentially means
that an inference of discrimination, and therefore a
prima facie case under Batson, does not arise even
where the State has exercised peremptory challenges
against all seven African-American venire persons in a
racially-sensitive double murder trial involving an
African-American defendant and white victims. Ac-
knowledging that Mahaffey has presented a “strong
argument” on the prima facie case (ante at 12), the
majority opts to bypass that aspect of the Batson [**49]
inquiry and to proceed directly to the ultimate issue of
discrimination. Such a course is appropriate, my col-
leagues believe, because at the Batson hearing ordered
by the Illinois Supreme Court, the State came forward
with its reasons for striking the seven African-Ameri-
can jurors, and the trial judge explicitly found those
reasons valid and nonpretextual. Id. at 14. In my view,
that conclusion simply is not supported by the record of
the Batson hearing. It also is inconsistent with the
decisions issued in this case by the Illinois Supreme
Court, the federal district court, and the state trial
judge who presided at the Batson hearing. The majority
reaches such a conclusion, moreover, in the face of the
State’s own insistence that it has never articulated its
reasons for striking the seven African-American jurors.

C38

As I will demonstrate below, the majority’s analysis
of the Batson issue relies on a mistaken premise—that
the actual reasons for the challenged strikes were be-
fore the state trial judge and that those reasons were
considered and accepted by him. To the contrary, the
record demonstrates that the State never offered its
reasons for striking the African-American jurors, as
{**50] the State itself concedes, and those reasons thus
were never considered by the state trial judge or by any
state or federal court that subsequently has reviewed
his work. The Illinois courts and the prosecutors who
have been so intimately involved in this case for so long
simply are not mistaken as to what occurred at the
Batson hearing. It is rather the majority of this court,
almost eleven years later, that I believe misreads the
record in order to avoid the obvious conclusion that a
remand on the Batson issue is required.

In my view, and I venture to say in the view even of
my colleagues in the majority, Jerry Mahaffey plainly
established a prima facie case of discrimination at the
Batson hearing in November 1987. And because a
prima facie case was shown, the State must now be
required to articulate to the district court its race-
neutral reasons for striking all seven African-Americans
from Mahaffey’s jury. At that point, the district court
must decide for the first time in the extended history of
this case whether the reasons offered for the seven
strikes are valid, or whether those reasons are instead
a pretext for discrimination. Jerry Mahaffey is entitled
to at least that much [**51] before the State of Illinois
carries out his death sentence. The United States Con-
stitution, as interpreted by the Supreme Court in Bat-
son, requires no less. Because a majority of this court

C39

is unwilling to give Mahaffey even that, I must respect-
fully dissent.

I,

The fundamental mistake I find in the majority’s
opinion is its suggestion that the prosecutors actually
offered their reasons at the Batson hearing for striking
the seven African-American jurors. They plainly did
not, as is clear from every other court’s discussion of
the issue, and from the State’s own brief in this appeal.
See Respondent’s Br. at 13 (“The prosecution never
tendered ‘race-neutral’ reasons at trial, nor during any
appellate proceeding, state or federal.”).' [*689] What
the State did offer at the Batson hearing, and what the

' The Respondent’s brief further emphasized the point as fol-
lows: The District Court itself made quite clear in its opinion,
any explanations which had been given by the prosecution
were “directed to explaining the pattern of challenges” used
during the jury selection, rather than attempting to proffer
raceneutral reasons to the court, which would have been pre-
mature due to petitioner’s obvious failure to establish a prima
facie case of discrimination. In fact, since the time of the orig-
inal voir dire, the prosecutors have steadfastly refused to
tender “race-neutral” explanations for their challenges until
petitioner had demonstrated a prima facie case of discrimina-
tion. Even the Illinois Supreme Court found any “apparent ex-
planations” for the State’s challenges were “relevant circum-
stances which a trial court may consider when determining a
prima facie case of discrimination.” Mahaffey, 539 N.E.2d at
1184. Id. (additional citations omitted). Counsel for the State
then reiterated the point at oral argument, assuring us that
the prosecutors have never in the long history of this case of-
fered their true reasons for striking the seven African-Ameri-
can jurors. In my view, the majority's explanation for the
State’s position simply does not comport with the record here.
See ante at 10-11 n.7. [**54]

C40

majority now misconstrues as the State’s race-neutral
reasons for the strikes, were possible explanations for
the challenges that were apparent in the record of the
voir dire proceeding itself. The State argued to the trial
judge at the Batson hearing that such possible explana-
tions, if apparent from the record, could be considered
at the prima facie case stage even before the State was
{**52] required to articulate its true reason for any
individual strike. According to the State, those possible
explanations were relevant to whether the trial judge
should draw an inference of discrimination for purposes
of the prima facie case. See Batson Hearing Tr. at 12
(prosecutor argues that “in determining whether or not
the defendant has made out a prima facie case, the
trial judge may consider any apparent reasons for the
prosecutor’s challenges against minority jurors.”).” Yet
those “apparent reasons” are to be distinguished from
the State’s actual reasons, which, as the State pointed
out almost eleven years ago at the hearing and now
confirms in its brief to this court, have never been
revealed. See id. at 25 (“Since the defendants have not
even made a prima facie case on this issue, there is no
further need for any . . . inquiry into why we exercised

* Later in the hearing, the prosecutor explained that: In cer-
tain cases the justifications for some of the State’s per-
emptories will not be apparent from the transcript of jury
selection. However, it has been held in such cases that the de-
fendants did fail to make out a prima facie case of discrimi-
nation where the transcripts show that most but not all of the
State’s peremptory challenges were clearly justified by facts
which were apparent in the record. Id. at 14-15. The State
thus effectively argued at the Batson hearing that it was not
required to reveal the true reasons for the strikes if possible
explanations that were apparent from the record served to
negate the existence of a prima facie case.

C41

our challenges as we did.”). Thus, when the prosecutor
proceeded to address the characteristics of five of the
seven African-American jurors individually, he was not
purporting to reveal the State’s true reasons for strik-
ing those jurors; he was instead offering “reasons which
are apparent from the record which justify the State’s
(**53] challenges against these minority jurors.” Id. at
20. In the State’s own view, then, its prosecutor never
crossed the line into the pretext stage, as the majority
now finds, because the prosecutor focused his entire
argument on the requirements of the prima facie case.
Indeed, the prosecutor concluded his argument at the
Batson hearing by requesting that the trial judge find
no prima facie case in the circumstances here. Id. at
26.°

As the majority [**55] points out, in responding to the
prosecutor’s argument, Mahaffey’s counsel intimated
that the State may have done more than merely argue
the absence of a prima facie case. Yet after suggesting
that the prosecutor may have crossed the line into the
explanation stage, defense counsel observed that “if this
is done on the assumption that... a prima facie case
[has] been presented, then I think that is a significant
concession. Otherwise, much of what he said deserves
review after your Honor has found [*690] a prima facie
case.” Id. at 26-27. Later in the hearing, defense coun-

* In the district court, Judge Zagel took the same view of the
prosecutor's arguments at the Batson hearing: “In this case,
the prosecutors elected to dispute the showing of the prima
facie case though they did explicitly deny basing challenges on
race. The detailed explanation they did offer was directed to
explaining the pattern of challenges.” Mahaffey, 978 F. Supp.
at 781.

C42

sel reiterated that the issue before the court was
whether a prima facie case had been shown, and coun-
sel twice stated that if a prima facie case were found,
Mahaffey would then address in more detail the possi-
ble explanations the prosecutor had offered. See id. at
28 (“As far as the specifics and the details, we will
respond if your Honor finds a prima facie case.”) & id.
at 36 (“And we would wish to respond to each of those
grounds if your Honor finds that there was a prima
facie case.”).* And counsel concluded his argument by
asking the trial judge to find that Mahaffey had
satisfied his burden under Batson of [**56] establishing
a prima facie case of discrimination: The matter for
your Honor at this time seems to be whether the fact
that all Blacks were excluded by the State on peremp-
tory challenge and there were no Blacks on the jury to
try Black defendants, that we have at least established
a prima facie case entitling us to a ruling by your
Honor and an evaluation and consideration on the
grounds and a decision. . . . So we would ask your

* According to my colleagues in the majority, Mahaffey’s coun-
sel “argued that at least some of the prosecution’s asserted
justifications were pretextual.” Ante at 8. With the utmost
respect, however, I again must disagree. It is clear from the
transcript that defense counsel, like the prosecutor, argued
only what the existing record revealed about the stricken
jurors. Defense counsel asserted that the possible explanations
pointed out by the prosecutor did not negate the existence of
a prima facie case because white jurors with similar character-
istics and opinions had been permitted to remain on the jury
while African-American jurors with those characteristics and
opinions had been excluded. Id. at 29-36. As I noted in the
text, moreover, counsel twice told the trial judge that he would
respond further on the pretext question if a prima facie case
were found.

PS RNS Lae he ae OE, OO Ae am eee | Feu ea Bea kee

C43

Honor at this time to conclude there has been a show-
ing of a prima facie case and therefore the State must
demonstrate there has been neutral grounds for remov-
ing the jurors. Id. at 36.

[**57] Having heard the arguments of both sides on
the issue of the prima facie case, the state trial judge
proceeded to address that issue alone. The court thus
made no mention of defense counsel’s request that he
be given the opportunity to respond in more detail to
any race-neutral reasons offered by the State if a prima
facie case were found. J udge Hett began his analysis by
reciting the elements of a prima facie case under
Batson, making it abundantly clear that he was consid-
ering only that aspect of the Batson equation. As the
majority points out, Judge Hett then provided detailed
observations on the jury voir dire, which led him to
conclude that “similar types of people were also on the
jury. . . . All of the: people who were excused were
similar to the people who were chosen. The Whites who
were excused were similar to the Blacks who were
excused.” Id. at 51. Contrary to my colleagues’ asser-
tion, however, Judge Hett never suggested that the
prosecutor had offered the State’s race-neutral reasons
for the strikes, nor did he ever indicate that he was
assessing whether those reasons were a pretext for
discrimination. Cf. ante at 14 (“Judge Hett considered
in detail the prosecution’s [**58] race-neutral justifica-
tions, conducted his own analysis regarding whether
any of these justifications were pretextual, and con-
cluded that Mahaffey had not shown racial discrimi-
nation.”). Rather, the judge concluded from the pattern
of strikes and the information revealed by the record of
the jury voir dire that an inference of discrimination

C44

should not be drawn in these circumstances: Looking at
the totality of the circumstances I do not believe that
there has been a showing, a prima facie showing that
the State exercised [its] challenges in a manner that
showed racial discrimination. They treated both the
Blacks and the Whites who were being excused in the
same way. It is apparent in the record they used the
same factors that I found as to Whites, again as to
Blacks. Batson Hearing Tr. at 54. Judge Hett therefore
concluded that Mahaffey had failed to carry his burden
of establishing a prima facie case under Batson. Id. at
55.

On appeal, the Illinois Supreme Court affirmed Judge
Hett’s conclusion regarding the absence of a prima facie
case, and nowhere did that court suggest, as my col-
leagues now [*691] conclude, that the trial judge had
made a finding on the ultimate issue of discrimination.
i**59] In fact, the state supreme court expressly re-
jected Mahaffey’s assertion that the trial judge had
erred when he relied on the “apparent explanations” for
the strikes offered by the State at the prima facie case
stage. In so doing, Illinois’ highest court read the record
of the Batson hearing much differently than my col-
leagues do today. The Illinois Supreme Court said that
“rather than relying on ‘apparent explanations’ for the
State’s challenges, the trial court merely reviewed the
characteristics of the stricken jurors to determine their
heterogeneity. This is a relevant circumstance which a
trial court may consider when determining a prima
facie case of discrimination.” People v. Mahaffey, 539
N.E.2d at 1184 (citing People v. Evans, 125 Ill. 2d 50,
530 N.E.2d 1360, 1365, 125 Ill. Dec. 790 (Ill. 1988),
cert. denied, 490 U.S. 1113 (Ill. 1989)). The Illinois Su-

C45

preme Court thus considered and rejected the very
premise of today’s majority opinion—that the State had
crossed the line at the prima facie case stage by offer-
ing its race-neutral explanations for the strikes, and
that the trial judge had found those explanations valid
and nonpretextual. See ante at 14.

In articulating a contrary [**60] view, my colleagues
inform us that the state trial judge’s finding on the
ultimate issue of discrimination is entitled to a pre-
sumption of correctness (ante at 13-14), which is cer-
tainly true had such an ultimate finding actually been
made. As I have explained, however, no such finding
ever was made by the Illinois courts in this case.” |
therefore find it more than a bit ironic that the major-

* Because no such finding was made here, this case cannot be
likened to Hernandez v' New York, 500 U.S. 352, 359, 114 L.
Ed. 2d 395, 111 S. Ct. 1859 (1991), where a plurality of the
Supreme Court found the prima facie case issue moot once the
prosecutor had offered his race-neutral reasons for juror chal-
lenges. Cf. ante at 11-12. In that case, the prosecutor immedi-
ately volunteered his race-neutral reasons for striking two pro-
spective jurors after a Batson objection was raised. Hernandez,
500 U.S. at 356. Indeed, the prosecutor specifically stated that
he had excused the two Hispanic jurors because he was uncer-
tain that they would accept the official interpreter’s transla-
tion of testimony that would be given in Spanish. Id. There
was thus no doubt in Hernandez that the prosecutor had of-
fered his race-neutral explanations, and every court to con-
sider the case recognized that he had done so. Id. at 358. My
two colleagues in the majority here, by contrast, are the only
two judges in the extended history of this case who have con-
cluded that race-neutral explanations were provided and that
a finding was made on the ultimate issue of discrimination.
Hernandez, in short, does not support the majority's decision
to bypass Batson’s prima facie case stage in the circumstances
here.

C46

ity would invoke such a presumption here, where it
essentially finds that the Illinois courts were them-
selves confused about which aspect of the three-part
Batson equation they actually were dealing with. How
can the federal courts possibly afford a presumption of
correctness to a state court finding that the state courts
themselves did not purport to make? As I read the
record, the state courts only found that Mahaffey had
failed to make out a prima facie case of discrimination,
and I do not think we are at liberty almost eleven years
later to recast the issue simply because we may find
the state courts’ conclusion indefensible on this record.
[**61]

IT.

Having demonstrated that the only issue decided by
the Illinois courts, and therefore the only issue properly
before us today, was whether Mahaffey established a
prima facie case of discrimination, I must conclude that
he did. Unlike the ultimate issue of discriminatory in-
tent, which as a factual question is entitled to defer-
ential review (see Batson, 476 U.S. at 98 n.21), the pre-
liminary question of whether a prima facie case has
been shown presents a mixed question of law and fact
(see, e.g., United States v. Bergodere, 40 F.3d 512, 516
(Ist Cir. 1994), cert. denied, 514 U.S. 1055, 131 L. Ed.
2d 318, 115 S. Ct. 1439 (1995); United States v. Alva-
rado, 891 F.2d 439, 443 (2d Cir. 1989), vacated on other
grounds, 497 U.S. 543 (1990)), which I submit the ap-
pellate courts should review de novo. Although some of
our sister circuits have utilized a clearly erroneous
standard in their review of that question (see Bergo-

C47

dere, 40 F.3d at 516 (citing cases)), I believe that the
Supreme Court’s recent decision (*692] in Ornelas v.
United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S.
Ct. 1657 (1996), points in the direction of de novo
review. The question of whether an inference of dis-
crimination [**62] may be drawn from a set of undis-
puted facts relating to the racial makeup of the jury
venire and the prosecutor’s exercise of peremptory
challenges is, like the probable cause question before
the Court in Ornelas, one over which the appellate
courts should exercise a degree of control that a clear
error standard would not afford. Jd. at 697. As in
Ornelas, factual scenarios will recur in this context,
and de novo review would allow for a measure of con-
sistency in the treatment of similar factual settings,
rather than permitting different trial judges to reach
inconsistent conclusions about the prima facie case on
the same or similar facts. Id. at 697-98; cf. Mahaffey,
978 F. Supp. at 781 (“This is not to say that Judge Hett
could not have decided the question the other way, but
on this record, given his participation in the jury selec-
tion, his judgment that there was no prima facie case
was permissible.”). Ultimately, however, I find the
standard of review question largely beside the point, for
even if a more deferential standard were applied, I
would have to conclude that Judge Hett clearly erred in
finding that no inference of discrimination would arise
from the facts and circumstances [**63] here.

I recognize, of course, that Batson requires that we
look to all the relevant facts and circumstances in
assessing whether an inference of discrimination should
arise. See Batson, 476 U.S. at 96. Yet by far the most
important factor in this case, and one that I believe the

C48

Illinois courts were too quick to overlook, is that all
seven African-American members of the jury venire
were excused by the State, meaning that not a single
member of Mahaffey’s own race was seated on the jury
that decided his fate.® This is therefore not a case in
which only one or two members of a particular racial
group were excused while other members of the same
racial group remained; it is instead a case where the
State exercised seven of thirteen total challenges to
exclude every member of Mahaffey’s own race. That
strikes me as fairly compelling evidence of discrimina-
tion, at least at the prima facie case stage, where the
State has not yet been required to articulate its race-
neutral reasons for striking the African-American
jurors. An inference of discrimination is particularly
appropriate, I believe, in light of the Supreme Court’s
admonition in Batson that we be mindful of the fact
that “peremptory [**64] challenges constitute a jury
selection practice that permits ‘those to discriminate
who are of a mind to discriminate.’” 476 U.S. at 96
(quoting Avery v. Georgia, 345 U.S. 559, 562, 97 L. Ed.
1244, 73 S. Ct. 891 (1953)). The Supreme Court in
Batson emphasized that an inference of discrimination
may arise where the prosecutor makes a pattern of
strikes against African-American jurors. 476 U.S. at 97.
I submit that such a pattern plainly is evident in the
State’s juror challenges here, where the prosecutor
excused each and every African-American member of
the jury venire. See McCain v. Gramley, 96 F.3d 288,

® There was of course an African-American alternate who sat
through Mahaffey’s trial, but she did not deliberate on the ver-
dicts either at the conviction or penalty phase.

a

C49

292 (7th Cir. 1996) (inference of discrimination may be
drawn “where there are only a few members of a racial
group on the venire panel and one party strikes each
one of them”), cert. denied, 137 L. Ed. 2d 482, 117 S.
Ct. 1320 (1997); United States v. Sowa, 34 F.3d 447,
452 (7th Cir. 1994) (“The government easily made its
prima facie case that the peremptory challenges were
motivated by race; each and every black venireperson
[six in all] was challenged.”), cert. denied, 513 U.S.
1117, 130 L. Ed. 2d 796, 115 S. Ct. 915 (1995); Splunge
v. Clark, 960 F.2d 705, 707 (7th Cir. 1992) (prima
(**65] facie case shown where both African-American
members of the jury venire were excluded by the pros-
ecution).

And lest we forget, the crimes at issue in this case
were obviously racially-sensitive—Mahaffey, a young
African-American male from Chicago’s South side, was
charged with murdering a white couple on the North
side, and with attempting to murder their young son.
This is therefore a case in which the racial composition
of the jury could potentially be a factor in how the jury
might respond [*693] to Mahaffey’s defense at trial, as
well as to his arguments in mitigation at the capital
sentencing phase. See Williams v. Chrans, 945 F.2d
926, 943-45 (7th Cir. 1991), cert. denied, 505 U.S. 1208,
120 L. Ed. 2d 877, 112 S. Ct. 3002 (1992). Before the
judgment of the essentially all white jury in this case
is executed, I believe that the State at least [**66]
should be required to explain why it excused each
venire person of Mahaffey’s own race.

I am sensitive to the fact that Judge Hett was pres-
ent during the jury voir dire and that, in his view, all
of the relevant facts and circumstances did not produce

C50

an inference of discrimination. Yet Judge Hett came to
that conclusion only after comparing the seven African-
Americans whom the State excused from the jury with
the six whites who were similarly excused. The state
trial judge essentially found that because the excused
African-Americans and the excused whites had similar
characteristics, an inference of discrimination should
not be drawn from the decision to strike the African-
Americans. Batson Hearing Tr. at 54. But rather than
comparing the excused African-Americans to the ex-
cused whites, I think the trial judge should have been
comparing the excused African-Americans to the whites
who remained, for only through such a comparison
could the judge assess whether race played any role in
the State’s challenges. If an excused African-American
juror had characteristics and opinions that were similar
to those of a white juror who sat, for example, then the
obvious inference, at least prior [**67] to the articula-
tion of a race-neutral explanation for the strike, would
be that the strike was racially motivated. As far as the
voir dire record would reveal, the stricken juror’s race
would be the only characteristic distinguishing the
African-American from the white who was retained. I
find it significant in that regard that Judge Hett found
at the Batson hearing that the whites who sat on Ma-
haffey’s jury were similar to the African-Americans the
State had excused. Id. at 51. That finding indicates to
me that the African-Americans on the jury venire may
have been singled out, as they may have been treated
differently than whites with the same or similar char-
acteristics. And the inference of discrimination that
would arise in that circumstance is unaffected by the
fact that some whites with the same characteristics also

C51

may have been excused—the State stil] struck all the
African-Americans while retaining some of the whites,
and despite having strikes available that went unused.

In short, I believe that the showing made by Mahaf-
fey at the Batson hearing was sufficient as a matter of
law to require the State to come forward with race-
neutral explanations for each of the challenged [**68]
strikes. We should therefore remand this case to the
district court to enable the State to do so now.

ITI.

The crimes of which Jerry Mahaffey stands convicted
are indeed horrific, and the evidence certainly supports
the jury’s conclusion that Mahaffey was a perpetrator
of those crimes. I have no doubt, moreover, that an
Illinois jury could conclude, as this jury did, that Ma-
haffey deserved the death penalty as a consequence.
But how I wish I were confident that the jury making
those decisions had been selected in a constitutional
manner. I simply cannot be confident on this record.

The State of Illinois should once and for all be re-
quired to articulate its true reason for striking each of
the seven African-American venire persons from the
jury that ultimately rendered those judgments. As the
State itself concedes, it has never done so in the ex-
tended history of this case, nor has any court ever
assessed the legitimacy of those reasons under the
dictates of Batson. The majority’s conclusions to the
contrary, as I believe I have demonstrated, are without
support in the state court record.

For all of these reasons, I most respectfully dissent.

D1
APPENDIX D

JERRY MAHAFFEY, Petitioner-Appellant, v.
THOMAS PAGE, Warden, Defendant-Appellee.

No. 97-4137

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

160 F.3d 1139; 1998 U.S. App. LEXIS 28201

October 26, 1998, Decided

PRIOR HISTORY: [*1]

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Div. No. 95 C
6623. James B. Zagel, Judge.

Original Opinion of August 6, 1998, Reported at: 1998
U.S. App. LEXIS 18189.

JUDGES: Before Hon. WALTER J. CUMMINGS, Cir-
cuit Judge, Hon. JOEL M. FLAUM, Circuit Judge, Hon.
ILANA DIAMOND ROVNER, Circuit Judge.

OPINION: ORDER

On consideration of the petition for rehearing and
suggestion for rehearing en banc filed by petitioner-
appellant on August 27, 1998, and the answer of re-
spondent-appellee, all of the members of the original
panel have voted to grant the petition for rehearing.
Accordingly, the petition for rehearing is granted, and
the panel will take the case under advisement on the
briefs and the record.

El
APPENDIX E

UNITED STATES OF AMERICA ex rel.
JERRY MAHAFFEY, Plaintiff, v.
HOWARD PETERS, III, Defendant.

No. 95 C 6623

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT
OF ILLINOIS, EASTERN DIVISION

978 F. Supp. 762; 1997 U.S. Dist. LEXIS 13597

September 5, 1997, Docketed

DISPOSITION: [**1] Petition for Writ of Habeas Cor-
pus denied.

CORE TERMS: juror, prosecutor, brother, death penal-
ty, psychological, sentencing, defense counsel, mitiga-
tion, psychologist, confession, sentence, boy, prima facie
case, peremptory, guilt, woman, gun, mental condition,
mitigate, prison, mental retardation, arrest, killers, hit,
jury selection, conversation, impression, interview, bru-
tality, retarded

COUNSEL: For JERRY MAHAFFEY, plaintiff: Alan
Michael Freedman, Freedman & Bornstein, Chicago, IL.

For JERRY MAHAFFEY, plaintiff: Gary O. Prichard,
United States Environmental Protection Agency, Chica-
go, IL.

For HOWARD PETERS, III, defendant: Arleen C. An-
derson, Illinois Attorney General’s Office, Chicago, IL.

E2

For HOWARD PETERS, III, defendant: Sally Louise
Dilgart, Judy L. Deangelis, Renee Goldfarb, Cook Coun-
ty State’s Attorney, Chicago, IL.

JUDGES: James B. Zagel, United States District
Judge.

OPINION BY: James B. Zagel

OPINION: [(*764] MEMORANDUM OPINION AND
ORDER

Jerry Mahaffey and his brother, Reginald invaded the
Pueschel home, murdered a husband and a wife and
tried hard to murder their eleven-year-old son. This
was found by a jury which also decided that he de-
served to die for what he had done, and he was sen-
tenced to death. After unsuccessful challenges to the
sentence in state court, he seeks to overturn the judg-
ment in federal court. With neither fact nor law to jus-
tify his federal claims, he cannot prevail. I deny his
petition for a writ of habeas corpus and allow the law
to proceed on its stern course.

The crimes were discovered [**2] by the father of Jo
Ellen Pueschel who found her dead body and that of
her husband, Dean Pueschel in their home. He first
found his severely beaten grandson, Richard wandering
near the alley by the home. The eleven-year-old Richard
swore that in the night he awoke to find himself in a
headlock, being told by two separate voices to “shut up
and be cool.” He could not remember whether he fell
asleep or was knocked out, but he did later wake and,
in a daze, walked into his kitchen, where he was told to
stay on the floor next to his mother. He did so, and saw
his mother being struck.

hla alti Gh Nica nah) Ra

E3

Missing from the home were a video recorder, video-
tapes, an Atari game console, seven game cartridges,
several items of the Pueschel’s jewelry, along with a
-357 magnum revolver and a shot gun. Pueschel’s red
Camaro was missing as well.

The Pueschel’s Camaro was recovered on August 30,
1983 in a parking lot at 2245 West Lake Street in the
Henry Horner projects.

(*765] On September 2, Jerry Mahaffey’s brother,
Cedric apparently made contact with the police and
made statements which led to the arrest of Jerry and
Reginald Mahaffey and the recovery from Jerry’s resi-
dence of the video recorder, the Atari game and [**3]
cartridges. In Reginald’s residence was found the .357
revolver and 24 pieces of jewelry. At arrest, Reginald
was wearing Dean Pueschel’s ring and carrying his
watch.

Both defendants confessed to an Assistant State’s
Attorney, and both confessions were read in full to the
jury. Reginald’s confession was ultimately admissible
against Jerry Mahaffey because Reginald testified on
his own behalf.

Jerry Mahaffey told the prosecutor that he and Reg-
inald had discussed committing a burglary on the north
side and drove toa clothing store at Howard Street and
Western Avenue. Jerry saw a “paddy wagon” in an
alley, so Reginald drove around the block and parked in
a lot. After deciding not to burglarize the store, they
were unable to restart their van. They walked away
from it and saw an open window leading into a bath-
room. They climbed through the window into the bath-
room. They went into the “grown-ups’ room” and the

4

“boy’s room” and then to the kitchen where Reginald
picked up a knife. Jerry wiped everything Reginald
touched “for not finding fingerprints.” They went to the
boy’s room, and Jerry tried to strangle him with a
towel, then they put a pillow over his head, and Regi-
nald strangled [**4] him four to five times. The boy
kept struggling, and Jerry hit him on the head with a
baseball bat he found in the room.

The brothers Mahaffey each took a bat from the boy’s
room, went to the other room and proceeded to hit the
man on the head with the bats. Reginald took the
woman to the living room where he raped her and
forced fellatio. Jerry went into the room where the
woman was present but return

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1419%3A2. Public record. Not legal advice.