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Girvies L. DAVIS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robberies
Number of victims: 4
Date of murders: 1978 - 1980
Date of birth: January 20, 1958
Victims profile: 3 male and 1 female
Method of murder: Shooting
Location: St. Clair County, Illinois, USA
Status: Executed by lethal injection in Illinois on May 17, 1995
 
 
 
 
 
 
clemency petition 1 clemency petition 2 clemency petition 3
 
 
 
 
 
 

Illinoisan Killer Executed

The New York Times

May 18, 1995

In the Illinois execution, Girvies Davis was put to death early yesterday for the murder of an 89-year-old man who was shot in his wheelchair during a robbery of his house.

"I wish Godspeed to all," Mr. Davis murmured just before lethal chemicals were fed into his arm. Officials at the prison in Crest Hill said it took him six minutes to die.

Gov. Jim Edgar turned down pleas for clemency.

Mr. Davis, 37, was convicted in the 1978 murder of Charles Biebel of Belleville, Ill., a suburb of St. Louis. He was also convicted of three other murders.

His lawyers said Mr. Davis signed a confession after police officers drove him to a deserted road and threatened to shoot him. The confession said Mr. Davis robbed the house with an accomplice, who shot Mr. Biebel. That man is serving a life sentence for another murder.

Mr. Davis's lawyers also noted that their client, who was black, was convicted by an all-white jury and that blacks were excluded. The Supreme Court later found that practice unconstitutional, but the ruling was not retroactive.

Defense lawyers put the case on the Internet computer network last month: stories about the case, a copy of the clemency petition and a recording of Mr. Davis saying he was "not a murderer."

Mr. Davis was serving two 80-year sentences for two of the other murders. He was sentenced to death for the third, the 1980 killing of an 83-year-old blind woman, but the sentence was overturned on appeal and he was never resentenced.

 
 

Girvies L. Davis (c. 1958 – May 17, 1995), a black man, was convicted by an all white jury of the murder of Charles Biebel, 89. The murder occurred in Belleville, Illinois on December 22, 1978.

Davis allegedly confessed to the crime and was sentenced to death. There was no physical evidence or eyewitness testimony linking him to the murder. Davis, a 4th grade dropout, has been described as retarded and quite slow intellectually. After several days of questioning while in police custody, officers allege that Davis sent them a note from his cell stating that he wished to confess to a number of crimes.

Subsequently, in the middle of the night, police took him out of his cell, and took him for a ride. Two officers drove him around for hours before stopping and pulling out a briefcase from the trunk of the car. Davis said the officers placed some papers on the hood of the car, took off their gun belts, and told him he could either sign the papers or run.

"I signed everything they had", Davis said. "I was fearful for my life. If they would have had more there, I would have signed more. I found out later I had signed statements for 10 murders and 10 attempted murders and my Miranda rights." When asked if he had read the papers before signing, Davis said, "Naw, I couldn't even read back then. I could barely sign my name."

The St. Clair County State’s Attorney, Robert Haida, conceded that some of the confessions were false as other people were convicted of those crimes. Davis denied ever sending a note from his cell or seeing it before trial. Haida conceded that someone else wrote the note, but suggested Davis dictated it to a cellmate.

While on death row, Davis learned to read and write. He earned a high school equivalency certificate and became an ordained minister. He spent much of his time reading the Bible. A former police chief, a former prosecutor, and a retired judge worked to stop Davis’ execution, but Davis was executed in 1995 at the age of 37.

Wikipedia.org

 
 
 
 
 
 
Date of birth January 20, 1958
Race Black
Date of crime December 22, 1978
Age at time of crime 20
Victim: Charles Biebel
Race of victim White
Age of victim 89
Relationship to defendant None
Summary of crime Wheelchair-bound victim shot during the burglary of his home in St. Clair Co.
County where tried St. Clair
Trial judge Stephen M. Kernan
Trial attorney Patrick M. Young
Prosecutor Clyde L. Kuehn, St. Clair County State's Attorney
Trial by Jury
Race of jurors White; 3 Blacks excused by prosecutorial peremptory challenge
Convicted of Murder
Principal inculpatory evidence Confession, recanted before trial, acknowledging participation in home invasion during which crime was committed but attributing actual murder to co-defendant, Richard Holman; testimony of Gregory Mitchell, a self-described "fence" that Davis told him, "We might have something for you later on," and that Holman later the same day sold him the gun stolen from the victim and used to kill the him; evidence of two prior murders of elderly women, Frieda Mueller and Esther Sepmeyer, introduced for purpose of establishing modus operandi; items taken from Sepmeyer home found in Davis's possession.
Principal exculpatory evidence Testimony of two special agents of the Illinois Division of Criminal Investigation establishing that other persons had been convicted of two murders to which Davis had confessed at the same time he confessed to the Biebel, Mueller, and Sepmeyer murders.
Defendant testimony None
Jailhouse snitch None
Accomplice testimony None (Although during the sentencing phase the jury was shown a video-taped interrogation of Davis during which State's Attorney Clyde L. Kuehn stated that Davis's alleged accomplice, Richard Holman, had implicated Davis in several murders in which Davis allegedly was the trigger man.)
Confession Yes (recanted before trial)
Eyewitness testimony None
Forensic testimony None
Non-forensic expert testimony None
Evidence of mental illness, retardation, and/or neurological damage No evidence presented to jury (Out of the jury's presence, defense attorney Young informed Judge Kernan that there was evidence Davis suffered from mental illness, retardation, and brain damage. Young described the evidence as sufficient to show that "the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to the prosecution." Young said Davis did not want such evidence presented to the jury. Kernan then asked Davis if Young had correctly stated his position, and Davis replied, "That's correct.")
Statutory aggravating factor Prior murder convictions (murders of John Oertel and Frank Cash)
Sentencing authority Jury
Mitigating factors The only evidence in mitigation was the testimony of Davis's wife, Cindy Davis, who testified that her husband never had been violent toward her and that, if he were allowed to live, she would visit him in prison.
Criminal history Convictions for the murders of John Oertel and Frank Cash in St. Clair County, conviction for attempted murder in St. Clair County, conviction of the murder of Esther Sepmeyer in Madison County.
Date sentenced December 1980
Age when sentenced 22
Co-defendant Richard Holman
Disposition of co-defendant's case Case severed, charges dismissed on state's motion; Holman had been convicted and sentenced to natural life for the Sepmeyer crime.
Appellate history Conviction and sentence affirmed by Illinois Supreme Court on February 18, 1983, People v. Davis, 95 Ill.2d 1. (Justice Joseph Goldenhersh voted to affirm the conviction but dissented on the sentence on the ground that there was no evidence that Davis, as opposed to Holman, had been the triggerman. Justice Seymour Simon dissented on both the conviction and the sentence.)

Petition for post-conviction relief dismissed by St. Clair County Circuit Court Judge Patrick J. Fleming without a hearing, appeal unanimously denied by Illinois Supreme Court on December 21, 1987, People v. Davis, 119 Ill.2d 61. (Justices Simon and Cunningham took no part in decision.)

Petition for federal writ of habeas corpus denied by U.S. District Court Judge William D. Stiehl, of the Southern District of Illinois, appeal denied by U.S. Court of Appeals for the Seventh Circuit on January 13, 1994, Davis v. Greer, 13 F.3d 1134.

Petition for rehearing en banc denied by Seventh Circuit on April 13, 1994, Davis v. Greer, 21 F.3d 788. (Judges Kenneth F. Ripple, Richard D. Cudahy, and Ilana Diamond Rovner dissented.)
 

Appellate counsel Daniel D. Yuhas, Charles M. Schiedel, Lawrence Bapst, and David Bergschneider, of the Illinois Appellate Defender's Office, on direct appeal; Russell J. Hoover and Julia A. Martin, of Jenner & Block, in petition for post-conviction relief; John D. Shugrue, Russell J. Hoover, Barry Levenstam (argued), and Jannice A. Hornaday, of Jenner & Block, on petition for federal writ of habeas corpus.
Date of execution May 17, 1995
Age when executed 37
Time lapse (conviction to execution) 14 years, 5 months

 
 
 

Girvies DAVIS

Quixote.org

Allegation

On May 17, 1995, the State of Illinois, with acquiescence by the federal government, executed Girvies Davis by lethal injection. The state and federal governments failed to ensure Davis's right to a free and fair trial. The unfair and racially discriminatory trial resulted in Davis's execution.

Crime

On December 22, 1978, Charles Biebel, an 89-year-old man, was shot and killed during the course of a robbery in his mobile home in Belleville, Illinois. There were no witnesses to the robbery/murder and there was no physical evidence at the crime scene to help identify the murderer. Girvies Davis was arrested, tried, and convicted of Biebel's murder.

Salient Issues

  • Despite the fact that Davis was illiterate, he allegedly wrote a list of his crimes. He then signed written confessions for more than a dozen other crimes, including eleven murders. The jury was not told that he was illiterate.
     

  • Davis testified at a pre-trial hearing that he had signed the confessions under duress. He alleged that he was taken out of police car, unshackled, and told he could sign or make a run for it.
     

  • Before the trial, the prosecutor acknowledged that several of Davis's confessions appeared to be false.
     

  • The prosecution acknowledged that Davis was not the triggerman in the Biebel killing.
     

  • Davis's confession named Richard Holman as triggerman; Holman was never tried in relation to the murder.
     

  • The state presented no physical evidence to link Davis to the crime scene at the time of the crime.
     

  • Students at Medill School of Journalism at Northwestern University, working under Professor David Protess, found many inconsistencies in the confessions. One of the officers who took them down acknowledged that they were not read to Davis.
     

  • Davis refused to allow his lawyers to present evidence of his psychological disorders at his sentencing hearing, although this information might have helped avert a death sentence.
     

  • Three murders to which Davis had confessed were cited to the jury to gain a death sentence, even though prosecutors acknowledged that Davis could not have committed them.
     

  • The prosecution systematically used preemptory challenges to exclude all African Americans from the jury. Intentional exclusion of jurors solely on the basis of race has since been found to be unconstitutional. (Batson v. Kentucky, 1986)

Trial

Davis, known to the police as a small-time hustler and a thief, was picked up by the police and driven around East St. Louis in a squad car. He testified at a pre-trial hearing that he confessed to a large number of crimes under duress. He was then coerced into signing a series of confessions. Since he was illiterate, he could not read the confessions he signed. In his confession to the Biebel murder, he said he was outside the house when Richard Holman allegedly shot the victim. This confession was the only evidence linking Davis to the crime. Holman was never tried for the murder.

During the sentencing phase of the trial, the jury was never told that Davis was illiterate, nor was it told about the brain damage he had sustained when he was hit by a truck as a child. He was considered borderline mentally retarded and suffered from mental illness and alcoholism. Davis, whether out of shame or ignorance, did not allow his attorneys to present this information to the jury. Had they been able to do so, it might have helped him to avoid a death sentence.

Appeals

Davis's conviction and sentence were affirmed by the Illinois Supreme Court on February 18, 1983. Justice Joseph Goldenhersh voted to affirm the conviction, but dissented on the sentence on the grounds that there was no evidence that Davis, not Holman, had been the triggerman. Justice Seymour Simon dissented on both conviction and sentence.

The St. Clair County Circuit Court dismissed Davis's petition for post conviction relief without a hearing. The Illinois Supreme Court unanimously denied his appeal on December 21, 1987. On January 13, 1994 the U.S. District Court and the Seventh Circuit Court of Appeals denied Davis's petition for federal writ of habeas corpus. His petition for a rehearing en banc by Seventh Circuit was denied on April 13, 1994.

Conclusion

Girvies Davis was executed despite compelling evidence of his innocence. The state intentionally excluded all African Americans from the jury, a practice later found to be an unconstitutional form of racial discrimination. The only evidence against Davis was his confession, which he claimed was coerced. Many of his other confessions were found to be false. Other evidence, such as his illiteracy, brain damage, and mental impairments was not presented to the jury. Another man, thought to be the triggerman in this case, was never tried for the crime.

 
 

In Memoriam: Girvies Davis

Illinois Coalition Against The Death Penalty

Girvies Davis was executed on May 17, 1995, by the State of Illinois. David Protess, the journalist who has helped prove the wrongful convictions of several Illinois death row defendants, said that if he had had one more week to complete his investigation, he believed he could have proven Girvies’ innocence. Eric Zorn wrote more than 13 columns in the Chicago Tribune trying to Girvies’ life.

Girvies was “a hard, bad man who led a hard, bad life,” according to Zorn. He grew up in an atmosphere of neglect, in a family plagued by poverty and alcoholism, in one of the toughest and poorest sections of East St. Louis, which is one of the toughest and poorest towns in America.

As a child, Girvies, whose mother taught him to steal, was involved in burglaries, purse-snatchings, and fencing stolen goods. He was only 8 years old the first time he was arrested. His formal education ended when he was 12 – a fourth grader unable to read or write and barely able to speak coherently.

When he entered death row in 1980, Girvies was an angry, violent man who fought with prison guards, a “hate-filled individual who you did not want to be around,” recalls a fellow death row inmate.

On death row, fellow inmates taught him to read, using hand-drawn flash cards. After years of studying, Girvies earned a GED and then a correspondence degree from a Bible college. He became an ordained minister and the spiritual advisor to other condemned men.

When asked many years later what motivated him to learn to read and write, Girvies said that death row was the first place he’d been where he met people like him (other inmates) who could speak in full sentences and whose sentences didn’t require obscenities. He asked them how they learned to speak. They told him he needed to learn to read, and they taught him.

Girvies expressed remorse for his crimes, for “the harm and pain I have caused people by my evil behavior.”

Girvies' concern for his fellow human beings, guards as well as inmates, was reflected even in his preparations for his own execution. Several months before his execution, he requested that none of the staff at Menard be involved in transporting him to the execution site, because, as he put it, “It would be difficult . . . to maintain a humane working relationship or otherwise stable environment between condemned prisoners and any Menard correctional officers involved in removing me from my cell to be transported for execution."

His concern with others was also apparent when he first learned that the Governor had denied clemency – 7 hours before his scheduled execution. Four of his attorneys and friends were with him at the time; and it was Girvies who had to comfort them -- rather than they him -- assuring them that they had done everything they could, and that he was “ready”.

Girvies donated his body to the University of St. Louis medical school, saying that “The body, as far as I’m concerned, is nothing but a shell. If it can be used to help others to continue to exist. . . I’m for that.”

Everyone who knew Girvies suffered a double loss: the loss of belief in the integrity of the legal process, and the personal loss of a dear and blessed friend, whose death left an indescribable emptiness in many hearts.

 
 

Illinois Execution in 1995 Now Seen in a New Light

Chicago Tribune

May 22, 2006

Girvies Davis was executed in Illinois in 1995 after a conviction based largely on his own confession.  Davis' appellate attorney was David A. Schwartz, who now serves as senior vice-president and baseball legal counsel at CSMG Sports.  Schwartz writes in the Chicago Tribune that Davis "confessed" to many crimes, most of which he indisputably did not commit.  Davis said that the only reason he confessed to the murder that sent him to death row was that the police threatened to kill him if he did not sign the confession.  Schwartz, who was an attorney with Jenner & Block at the time he represented Davis, laments the fact that Davis' case had no DNA and that the times were different from those that led to the clearing of Illinois' death row by Gov. George Ryan in 2003:

I paused on Wednesday, as I do every May 17, to remember a man who was executed for a murder I am certain he didn't commit.

Timing is everything, of course, and former Gov. George Ryan's decision in 2003 to empty Illinois' Death Row came too late to save my client and friend, Girvies Davis, who was put to death on May 17, 1995.

By the time I got involved in the case, 15 years after the trial and five months before the execution, nothing short of finding the real murderer would have saved (Girvies) Davis' life. Our criminal justice system admits mistakes only when it has to, and belated attempts to cast doubt on a verdict are usually swept aside, regardless of merit, unless the defendant can actually prove his innocence.

Proving a defendant's innocence, though, is a tall task. Because there were no witnesses against Davis, there were no statements to recant; because there was no forensic evidence, there were no DNA tests to run.

In December 1978, Charles Biebel was found shot to death in his mobile home near Belleville, an Illinois town outside St. Louis. For 9 months the murder remained unsolved, and Davis was never considered a suspect.

Then, in the fall of 1979, 10 days after Davis was arrested in an unrelated robbery, the police announced that he had confessed to 20 murders and attempted murders.

Davis' "confession" to the Biebel murder was the only non-circumstantial evidence used against him at his trial.

Of the 20 crimes to which Davis supposedly confessed, however, it is now undisputed that he had nothing to do with most of them. Other defendants were later convicted, and prosecutors stated in court (in the other cases) that Davis' confessions were false.

Yet these same prosecutors had no problem using one of the false confessions to secure his death sentence.

According to Davis, here is why he signed the confessions: After he had spent 10 days in custody, the police checked him out of jail at 10 p.m. (the logs at the jail confirmed this) and drove him to a deserted road outside of town.

The police, Davis said, took off his handcuffs and leg shackles, drew their guns and produced a stack of already written confessions. They told him if he didn't sign they would kill him and say he died trying to escape.

Davis signed everything they had.

"You would have signed too," he told me years later, "if you had been on the side of that road instead of me."

The police had their confessions, and Davis was back in jail by dawn.

Davis was certainly not a sympathetic figure, given his long rap sheet, his history as a drug addict and his frequent outbursts in the courtroom. To an all-white jury in Belleville in 1980, this rough-looking 20-year-old black kid from East St. Louis would have appeared guilty even before the lawyers delivered opening statements.

A confession simply sealed the deal, even if there was never an adequate explanation for the middle-of-the-night outing that precipitated it.

All of this happened while I was in grade school. In 1994, fresh out of law school and 14 years removed from Davis' trial, I joined a Chicago law firm and was assigned to work pro bono on a petition seeking clemency for Davis.

Working with a team of attorneys, we found a teacher and a parole officer who signed sworn affidavits stating that Davis was illiterate when arrested and could not possibly have understood what he was signing.

We drafted a clemency petition to then-Gov. Jim Edgar, raising these issues and dozens of others and urging that Davis' death sentence be commuted to life in prison without parole.

We lost.

It was the wrong time, and we had the wrong governor. Our ability to cast doubt on Davis' guilt was not enough to spare his life, and we were never able to prove his innocence. We were unable to reconstruct his whereabouts on the day of the murder to find an alibi. I was certain that Davis was innocent but was never able to prove it, a fact that still haunts me 11 years later.

Davis didn't have the good fortune of Anthony Porter, who came within 48 hours of execution but who ultimately was exonerated when a group of Northwestern University journalism students and a private investigator found the real killer and, against all odds, persuaded him to confess on videotape.

The majority of exonerations in recent years have come about because of advances in technology and DNA testing, but for many convicts, including Davis, there are no tools to prove innocence because there is no forensic evidence to test. These unjustly imprisoned inmates will never gain their freedom.

Davis' case illustrates many of the inadequacies of our criminal justice system. His public defender had no experience in death penalty cases. Prosecutors used their peremptory challenges to exclude every potential black juror, a practice that has since been outlawed by the U.S. Supreme Court. And the appellate courts were more concerned with procedure than with discovering the truth.

I am not a death penalty activist, and people can disagree about whether Davis' actions--crimes he really committed, not what the police fabricated against him--ultimately warranted a death sentence.

To be sure, Davis took part in crimes where innocent people got killed, but he was never the one who did the killing. He openly acknowledged this in the soft-spoken manner that characterized the 36-year-old I knew--the man who learned to read in prison and became an ordained minister, not the rotten 20-year-old he was when convicted.

In the 5 months I spent on his case, Davis never shied away from talking about how much he regretted his bad deeds, including crimes the police never knew he had committed. But he was steadfast in denying any role in the murder that led to his execution.

In the beginning, I spent a lot of time trying to catch Davis in a lie--about anything--but I was never able to do it. Over time, I slowly and grudgingly came to believe his story.

To be honest, I didn't want to believe him; his guilt certainly would have made it easier on me in the days leading to his execution, when it became clear there was nothing more I could do to save his life.

It would have made it easier in the hours before midnight, when I had to say goodbye to Davis in his cell at Stateville prison, my client comforting me more than the other way around.

So frequently, and certainly on the anniversary of his death, I pause to remember that the State of Illinois executed Girvies Davis for a crime I am sure he didn't commit, and that I was powerless to prevent it.

 
 

Diverse Group Tries to Stop Illinois Inmate's Execution

By Don Terry - The New York Times

May 11, 1995

A hard-nosed former police chief here, Richard J. Brzeczek, is a believer in the death penalty. But these days, his faith has been shaken, at least in the case of Girvies L. Davis.

Mr. Brzeczek has joined an eclectic group that includes small-town ministers, big-city priests and rabbis, a former prosecutor and a retired judge working to stop the May 17 execution of Mr. Davis, a 4th-grade dropout, who suffered brain damage in a childhood accident and has tested as having an I.Q. bordering on mental retardation.

Mr. Davis, who is 37, has been convicted of four murders, but the one he is to die for is drenched in doubt about his guilt, the conduct of the police, the credibility of a confession and issues of race and class, say Mr. Brzeczek and others who have reviewed the Illinois case.

A policeman for nearly 20 years, Mr. Brzeczek (pronounced BREE-zak) says that the execution will make a mockery of capital punishment because the death sentence and some of Mr. Davis's convictions were born of a wobbly and perhaps coerced confession from Mr. Davis, who could not read or write at the time.

"I'm very much in favor of the death penalty," Mr. Brzeczek said, "but this is the kind of case that gives capital punishment a bad name."

Robert B. Haida, the state's attorney of St. Clair County in Southern Illinois, also sees the case as a test of the system but favors a different result. It was in his jurisdiction where Mr. Davis, who is black, was convicted and sentenced to die by an all-white jury nearly 16 years ago.

"From a prosecutor's perspective this is the type of person that the death penalty was enacted for," Mr. Haida said. "He stands convicted of four homicides."

Last Saturday, about 300 people demonstrated in Mr. Davis's behalf, snaking their way through shoppers and tourists in downtown Chicago and chanting "Justice for Girvies Davis." But just about the only person who can save him appears to be Gov. Jim Edgar.

The group of supporters, the Girvies Davis Clemency Committee, hopes that the Governor, a moderate Republican, will commute the death sentence to life in prison. On Thursday, the Illinois Prisoner Review Board will hold a hearing in Springfield and make a recommendation to Mr. Edgar. Mr. Davis is now represented by the big Chicago law firm of Jenner & Block.

"The public sees the Bundys and the Gacys executed and they cheer," said Gary V. Johnson, a former Kane County, Ill., prosecutor, who sought the death penalty in the past but opposes the execution of Mr. Davis. "The public doesn't see the Girvies Davises. They don't see the 20-year-old with the mental age of a 10-year-old. We've had four executions in Illinois since the death penalty was reinstated. This is really the first case where the public ought to be disconcerted that a young man is going to be put to death. There are just too many questions."

Mr. Davis is sentenced to die for the murder of Charles Biebel, an 89-year-old man who was found shot to death in his mobile home on Dec. 22, 1978, in the Southern Illinois town of Belleville. Prosecutors say Mr. Davis and a partner, Richard Holman, took a television set and a shotgun from Mr. Biebel's home during a string of burglaries and murders.

But there was no physical evidence linking Mr. Davis to the Biebel murder: no fingerprints, no murder weapon, no eyewitness.

Mr. Davis, who was 20, was convicted largely because of a signed confession given to the police. His supporters say it was coerced. Mr. Davis's medical, school and psychological records show that he was functionally illiterate. In addition, his case file is littered with words and phrases like "retarded" and "quite slow intellectually."

After several days of questioning in police custody, the authorities said, Mr. Davis handed a jail guard a note saying he wanted to confess to a list of crimes. He ended up confessing to involvement in the Biebel murder, which had occurred 10 months before, and 11 other crimes, including nine murders.

Fifteen years ago, the authorities said Mr. Davis gave them the note. But Mr. Davis denies ever seeing the note before trial, and now even Mr. Haida, the prosecutor, says the note was written by someone else, perhaps a cellmate he dictated to.

His flurry of signed confessions came only after police officers took Mr. Davis out of his cell late at night and drove him for hours through rural back roads, looking for evidence, the authorities said.

"Taking him out of his cell in the middle of the night like that is absolutely unheard of," said Mr. Johnson, the former prosecutor.

In a telephone interview from prison today, Mr. Davis said the two officers who took him drove him around for hours before stopping and pulling out a briefcase from the trunk of the car. He said the officers placed some papers on the hood of the car, took off their gun belts and told him he could either sign the papers or run.

"I signed everything they had," he said. "I was fearful for my life. If they would have had more there, I would have signed more. I found out later I had signed statements for 10 murders and 10 attempted murders and my Miranda rights."

Asked if he had read the papers before signing, Mr. Davis said, "Naw, I couldn't even read back then. I could barely sign my name."

He said the officers never roughed him up and after he had signed they offered to buy him food.

Mr. Haida concedes that some of the confessions were false -- other people were later found guilty of some of those crimes -- but denies that Mr. Davis's life was threatened.

"This was not a rush to judgment to pin as many murder cases on Girvies Davis that could be pinned on him," Mr. Haida said. "There were confessions that he gave that were false and the prosecution was very careful not to prosecute him for those."

Besides objecting to the confessions, supporters say Mr. Davis was merely an accomplice, not the triggerman in the killing. Mr. Davis says he was not in Mr. Biebel's home at the time of the shooting, and the state has not been able to prove otherwise. The prosecutors said he should have known the robbery might result in a killing.

Mr. Holman, the only other person arrested in the case, was also indicted in the killing. But he was never tried, apparently because he was just 17. He is now serving 75 years for his role in two other murders.

Mr. Davis was reared by alcoholic parents and was taught by his mother how to steal, according to a mitigation report prepared by his lawyers. Since being sent to death row, Mr. Davis has struggled to learn how to read and write. He has earned a high school equivalency certificate and has become an ordained minister, spending much of his days reading the Bible.

While denying he helped rob or kill Charles Biebel, Mr. Davis has long admitted to being involved in two robberies in which two people were slain.

"I'm truly, truly sorry for my involvement," he said today. "But I ain't never killed nobody."

 
 

13 F.3d 1134

Girvies L. Davis, Petitioner-appellant,
v.
Warden Jim Greer and Neil F. Hartigan, Respondents-appellees

United States Court of Appeals, Seventh Circuit.

Argued Oct. 12, 1993.
Decided Jan. 13, 1994

Before BAUER, COFFEY, and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

Girvies L. Davis was convicted of murder and sentenced to death in the circuit court of St. Clair County, Illinois. After unsuccessfully appealing his conviction and sentence in the Illinois courts, Davis filed this petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied Davis' petition and he appeals.

On Friday, December 22, 1978, Charles Biebel was shot to death in his mobile home in St. Clair County, Illinois. Biebel, an 89 year-old man who was confined to a wheelchair, was shot twice while inside his trailer. Davis and Richard Holman were indicted and tried for the murder. The evidence at trial established that Davis and Holman burglarized Biebel's home in addition to killing him. Davis was convicted by a jury of one count of murder in violation of section 9-1(a)(1) of the Illinois Criminal Code of 1961. Ill.Rev.Stat. ch. 38, para. 9-1(a)(1) (1977) (now codified as 720 ILCS Sec. 5/9-1(a)(1)).

As required by Illinois law, the court conducted a sentencing hearing to determine whether Davis was eligible for the death penalty. At the sentencing hearing, the jury heard evidence that Davis had been convicted for the murders of two other people in addition to Biebel, and the attempted murder of a third. These prior murder convictions, along with the Biebel conviction, made Davis eligible for the death penalty under Illinois law.

The jury determined that the necessary aggravating factors existed, and that no mitigating factors were sufficient to preclude the imposition of the death penalty. The jury returned a unanimous verdict that directed the court to sentence Davis to death. The court sentenced Davis to death and the Illinois Supreme Court affirmed his conviction and sentence. People v. Davis, 95 Ill.2d 1, 69 Ill.Dec. 136, 447 N.E.2d 353 (1983).

The United States Supreme Court denied Davis' petition for writ of certiorari. Davis v. Illinois, 464 U.S. 1001, 104 S.Ct. 507, 78 L.Ed.2d 697 (Ill.1983). Davis then filed a petition for post-conviction relief in the circuit court of St. Clair County, Illinois. That court dismissed Davis' petition and the Illinois Supreme Court affirmed. People v. Davis, 119 Ill.2d 61, 115 Ill.Dec. 553, 518 N.E.2d 78 (1987).

The United States Supreme Court denied Davis' second petition for writ of certiorari. Davis v. Illinois, 489 U.S. 1059, 109 S.Ct. 1327, 103 L.Ed.2d 595 (1989). Davis then sought leave in the Illinois Supreme Court to file a second petition for post-conviction relief. The Illinois Supreme Court denied his request in an unpublished order. With all state remedies exhausted, Davis turned to federal court. He filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court denied his petition.

On appeal, Davis alleges the following: (1) his sentencing hearing was fundamentally unfair; (2) the Illinois death penalty statute is unconstitutional on its face; and (3) the Illinois death penalty statute is unconstitutionally applied as a general matter and was unconstitutionally applied in this case.

Davis contends that his sentencing hearing violated constitutional standards in three ways. First, Davis claims that the use of a taped custodial interview of him by the prosecutor coupled with a remark by the prosecutor that the jury was only to "recommend" the death penalty unconstitutionally injected passion and emotion into the sentencing, violated his right to counsel, violated the Sixth Amendment's Confrontation Clause, and caused the jury to abdicate its responsibility in considering the death sentence. Second, Davis alleges that he was denied his right to the assistance of counsel at his sentencing hearing. Finally, Davis claims that the prosecutor at his trial systematically and purposefully excluded black members of the venire in violation of the Fourteenth Amendment Equal Protection Clause.

We begin with the videotape. At his sentencing hearing, the trial court allowed the State to play for the jury a videotape of a custodial interview of Davis. Davis said several things to the prosecutor at that interview, including: that he knew of his right to an attorney and did not want his attorney present; that he wanted to be executed quickly for his crimes because he was "tired of living"; that he was a murderer; that Ricky Holman gave him a gun; and that he committed a series of burglaries.

Davis argues that the videotape, together with the prosecutor's remarks that the jury was only to "recommend" the death penalty, eroded the moral responsibility that the jury felt for Davis' sentence. Davis' suggestion that the videotape made the jury more likely to vote for the death penalty is pure speculation. In fact, Davis' trial counsel, Patrick Young, referred to Davis' stated desire to die as a mitigating circumstance because only someone who was "extremely emotionally disturbed" and not in his "right mind" would make statements like those Davis made during the taped interview. Tr. of Oct. 28, 1980 at 160. And the prosecutor's comment was an apparent off-hand statement made during the course of the closing argument to the jury. To determine that this lone assertion required reversal, we would have to find that the statement was so inflammatory and prejudicial as to deprive Davis of a fair trial. Jentges v. Milwaukee County Circuit Court, 733 F.2d 1238, 1242 (7th Cir.1984). We examine the prosecutor's remark in the context of the proceeding as a whole. United States v. Easley, 994 F.2d 1241, 1245 (7th Cir.1993).

The jury in this case was repeatedly instructed that Davis would be sentenced to death if the jury unanimously decided that he deserved the death penalty. For example, the court instructed the jury in part: "If, at the conclusion of your deliberations in accordance with the court's instructions, you unanimously recommend that the death sentence be imposed, then the defendant will be sentenced to death by the court." Tr. of Oct. 28, 1980 at 180.

The court also instructed the jury to consider only the testimony of the witnesses and the exhibits which the court received as evidence. So instructed, the jury returned a unanimous sentence of death. We presume that juries follow their instructions. United States v. Badger, 983 F.2d 1443, 1456 (7th Cir.1993), cert. denied, --- U.S. ----, 113 S.Ct. 2391, 124 L.Ed.2d 293 (1993). Nothing in this case even begins to rebut that presumption.

Davis also challenges the use of the videotape because, he says, the interview was conducted in violation of his right to have counsel present. The record reveals that Davis was made aware of his right to counsel and waived that right. As required by Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), Davis was warned prior to any questioning that he had a right to remain silent, that he had a right to the presence of an attorney, and that if he could not afford an attorney, one would be provided for him. At the beginning of the interview, Clyde Kuehn, the State's Attorney who prosecuted Davis, explained these rights to Davis:

MR. KUEHN: Okay. Now, listen to me. I want you to understand your constitutional rights. You understand?

MR. DAVIS: Yes, sir.

MR. KUEHN: Do you have a lawyer?

MR. DAVIS: Yes, sir.

* * * * * *

MR. KUEHN: You don't mind talking to me without having him here?

MR. DAVIS: No, I don't mind talking to you without having him here.

* * * * * *

MR. KUEHN: Now, do you understand that you have a right and you can remain silent?

MR. DAVIS: Right.

MR. KUEHN: You can have a lawyer, you've got a lawyer. Maybe if you haven't paid him, you can have one appointed. Do you understand that?

MR. DAVIS: Yes, sir.

Tr. of Oct. 28, 1980 at 113-14.

This exchange demonstrates that Davis waived his right to counsel. A waiver of the right to have an attorney present at a custodial interview, like the one at issue in this case, must be knowingly and voluntarily made. United States v. Morrison, 946 F.2d 484, 502 n. 4 (7th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 826, 121 L.Ed.2d 696 (1992). Kuehn explained Davis' right to an attorney; Davis therefore knew about this right. He also voluntarily decided to abandon this known right. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ("A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege."). Davis' express statements of waiver amply demonstrate that he waived his right to have an attorney present. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).

Davis says that he lacked the requisite mental capacity to waive his right to counsel. Since Davis was competent to stand trial, (and does not claim otherwise) he was competent enough--and had the capacity--to waive his right to counsel. Godinez v. Moran, --- U.S. ----, ---- - ----, ----, 113 S.Ct. 2680, 2685-86, 2688, 125 L.Ed.2d 321 (1993). By expressly stating that he did not want an attorney present, Davis waived his right to counsel.

Next, Davis argues that Kuehn violated his Fifth Amendment right to remain silent. Toward the end of the interview, Davis told Kuehn that "I don't want to talk no more" and then, as the interview continued, said, "I don't want to talk about it any more." Tr. of Oct. 28, 1980 at 128, 131. The interview continued despite Davis' expressed desire not to talk. By continuing the interview, Davis contends, Kuehn deprived him of his right to remain silent.

A suspect who is subject to a custodial interview enjoys the right to terminate questioning at any time. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28; Bobo v. Kolb, 969 F.2d 391, 395 (7th Cir.1992). In this case, Davis refused to answer any questions about other crimes and other murders in which he was involved. No new evidence was elicited after Davis invoked his right to remain silent.

In fact, the rest of the conversation was simply follow-up by the prosecutor. The prosecutor asked Davis such questions as: why did you make these statements? did anyone in jail threaten you? and, were you promised anything by anybody? If Kuehn violated Davis' right to remain silent, we would reverse the district court and grant habeas relief if the error had " 'substantial and injurious effect or influence in determining the jury's verdict.' " Brecht v. Abrahamson, --- U.S. ----, ----, 113 S.Ct. 1710, 1714, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).

Any error here in failing to respect fully Davis' right to remain silent could not have had any substantial or injurious effect or influence on the jury's verdict. Having said all that, we would like to restate a caution to prosecutors and other law enforcement agents involved in custodial interrogations: when the arrestee says he wants to quit talking, and says he doesn't want to answer any more questions, stop the questioning. Here, the answers were inconsequential and had no effect on the proceeding. The next time may be different. The subject of the inquiry has a constitutional right not to talk; the government and its agents have a constitutional duty to respect that right.

Davis also complains that the videotaped material presented to the jury contained hearsay statements that violated the Sixth Amendment's Confrontation Clause. That provision guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. But the Confrontation Clause does not apply at sentencing. United States v. Hammer, 3 F.3d 266, 272 (8th Cir.1993). See also United States v. Corbin, 998 F.2d 1377, 1385 n. 15 (7th Cir.1993) (noting that at least eight circuits have held that the Confrontation Clause does not apply in sentencing proceedings).

The defendant at sentencing is no longer the "accused" referred to in the Sixth Amendment; instead, the defendant stands before the jury as a convicted criminal. Any violation of the hearsay rule that may have occurred at Davis' state trial is a matter of state law and outside the scope of our review in this habeas case. Estelle v. McGuire, --- U.S. ----, ----, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991); Reed v. Clark, 984 F.2d 209, 210 (7th Cir.1993).

Davis argues next that his trial attorney, Patrick Young, performed so ineffectively that he was deprived of his right "to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. To succeed on an ineffective assistance of counsel claim, a convicted defendant must show (1) that the defendant's trial counsel performed deficiently and (2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); United States v. Levine, 5 F.3d 1100, 1108 (7th Cir.1993). For these purposes, a fair trial is a trial whose result is reliable. Id.

Davis claims that Young was ineffective because he did not present evidence of Davis' alleged mental illness, retardation, and troubled family background. For this omission, however, Davis has one person to blame--himself. Davis prevented Young from presenting this evidence to the jury during the mitigation phase of the sentencing hearing. Young informed the court outside the presence of the jury that discussions he had with the St. Clair County (Illinois) Mental Health Department led him to believe that Davis had suffered for years from a mental condition and that Davis had received mental treatment for a number of years, going back to early childhood.

Young also told the court that those he talked with at the St. Clair County Mental Health Department would testify that Davis received a severe blow to his head when he was a child, that the blow to his head damaged his brain, and that Davis' E.E.G. readings were very abnormal. Young offered to put on witnesses and enter records into evidence that would confirm what he said about Davis' mental condition.

Young said this would show that "the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to the prosecution." Tr. of Oct. 28, 1980 at 18. Young explained that Davis did not want any of that evidence to go before the jury. The court asked Davis if Young was right, that is, if Davis did not want his mental health history presented to the jury. Davis responded with a terse "[t]hat's correct." As a result of this, the jury never heard this proposed mitigating evidence. Id. at 19.

Davis was fully informed of the option before him--whether to introduce evidence of his background and mental health history--and informed his attorney and the court that he did not want this evidence to go to the jury. He will not be heard to complain that the trial court's decision to grant his request deprived him of his right to the assistance of counsel. See United States v. Weaver, 882 F.2d 1128, 1140 (7th Cir.) ("Where a defendant fully informed of the reasonable options before him, agrees to follow a particular strategy at trial, that strategy cannot later form the basis of a claim of ineffective assistance of counsel."), cert. denied, 493 U.S. 968, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989).

We note as an additional matter that Young did present mitigating evidence in the form of testimony by Davis' wife, Cindy Davis. She testified that her husband once took her to the hospital, was never violent towards her, and, if the jury did not give her husband the death penalty, she would visit him in jail. The jury was not moved, or at least not moved enough, and voted unanimously to impose the death penalty.

Davis relies on our decision in Brewer v. Aiken, 935 F.2d 850 (7th Cir.1991), as support for his claim that Young's performance was constitutionally defective. His reliance is misplaced. In Brewer, we held that the defendant's attorney was ineffective during the death penalty phase of the trial because he failed to investigate the mental history of a defendant who had a low intelligence quotient and a deprived background. See Brewer, 935 F.2d at 857-59. In this case, unlike Brewer, Young did investigate Davis' mental health history and background. Young's performance easily satisfied the requirements of the Sixth Amendment.

Davis, a black man, next contends that at his trial the prosecutor systematically and purposefully excluded black members of the venire. This, he says, violated the constitutional guarantee that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, Sec. 1. Davis asks us to apply the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to his case.

In Batson, the Supreme Court held that a prosecutor violates a defendant's equal protection rights if the prosecutor purposefully uses peremptory challenges to exclude members of the defendant's race from the jury. Id. 476 U.S. at 86, 106 S.Ct. at 1717. The principle announced in Batson was not new, but changed the quantum of proof necessary to substantiate a particular claim. Ford v. Georgia, 498 U.S. 411, 420, 111 S.Ct. 850, 856, 112 L.Ed.2d 935 (1991).

In one of the forerunners to Batson, Swain v. Alabama, 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759 (1965), the Court held that a defendant could establish an equal protection violation if the defendant showed that the prosecutor systematically used peremptory challenges against blacks over a period of time. Batson did away with Swain 's requirement of proof of prior discrimination and held it possible for a defendant to make out a prima facie equal protection argument merely by reference to the prosecution's use of peremptory challenges in the defendant's own case. Ford, 498 U.S. at 418, 111 S.Ct. at 855; Williams v. Chrans, 945 F.2d 926, 941 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 3002, 120 L.Ed.2d 877 (1992).

Under the Batson standard, a defendant need only demonstrate that the use of peremptory challenges to eliminate members of a particular race raises an inference that the prosecutor used the peremptories to deny a defendant an impartial jury. When a prima facie case of this improper use of peremptory challenges has been made, the burden shifts to the prosecution to explain a constitutionally permissible reason for the challenges.

Davis urges us to apply Batson retroactively. In Williams, we considered and rejected the retroactive application of Batson. Id. at 946. Batson would, however, apply if Davis' conviction was not yet final when Batson was decided on April 30, 1986. Richardson v. Gramley, 998 F.2d 463, 464 (7th Cir.1993). A conviction is final for these purposes when the defendant has exhausted his state appellate remedies and either the United States Supreme Court has denied the defendant's petition for certiorari or the time for filing the petition has expired. Id. In this case, the Court denied Davis' petition for certiorari on November 28, 1983, long before Batson was decided. Davis v. Illinois, 464 U.S. 1001, 104 S.Ct. 507, 78 L.Ed.2d 697 (1983). Batson does not apply and we therefore examine Davis' claim under the Swain standard.

As we have explained, Swain requires Davis to show that the prosecutor systematically used peremptory challenges against blacks over a period of time. Davis has not satisfied this burden of proof. Although Davis alleges that in his case the prosecutor purposefully excluded black venire-persons, he fails to show a history of purposeful discrimination. We cannot find from this record that the prosecutor systematically and purposefully excluded black members of the jury in violation of the Fourteenth Amendment.

Given all this, we conclude that there was nothing about the videotaped custodial interview, the prosecutor's remark to the jury, the prosecutor's use of peremptory challenges during jury selection, or anything else about Davis' sentencing hearing that violated the Constitution.

B. Facial Validity of the Illinois Death Penalty Statute

Davis claims that the Illinois death penalty statute is facially unconstitutional because of defects in the statute and, in particular, the statute's accompanying jury instructions.1 He charges that the jury instructions do not inform the jury that they may consider nonstatutory mitigating factors and do not instruct jurors on the standard of proof on aggravation and mitigation. Davis also contends that the jury instructions are defective because the instructions cause jurors to believe that capital defendants, like Davis, bear the burden of persuasion on the issue of life or death. All of this, Davis says, violates the Eighth Amendment requirement that "cruel and unusual punishments [shall not be] inflicted." U.S. Const. amend. VIII. We have described the intricacies of the Illinois death penalty statute before and need not do so here to address Davis' complaint. See, e.g., Gacy v. Wellborn, 994 F.2d 305, 306-07 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 269, 126 L.Ed.2d 220 (1993).

Davis first contends that the jurors in his case were not instructed that they could consider nonstatutory mitigating factors. The record reveals otherwise. The trial judge at Davis' sentencing hearing instructed the jury that mitigating factors may include the five explicitly set out in the statute, but also added a sixth: "Any other facts or circumstances that provide reasons for imposing less than the death penalty." Tr. of Oct. 28, 1980 at 185. As this instruction indicates, the jury could consider literally anything that in its judgment provided a reason for imposing a sentence other than death.

We considered a similar challenge to similar jury instructions in Silagy v. Peters, 905 F.2d 986 (7th Cir.1990), cert. denied, 498 U.S. 1110, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991). In point of fact, the instructions in this case would seem more favorable to Davis than those we upheld in Silagy. The instructions at issue in Silagy listed mitigating factors as: "One, the murder was committed while the Defendant was under the influence of extreme mental or emotional disturbance although not such as to constitute a defense to prosecution; Two, any other facts or circumstances that provide reasons for imposing less than the most severe sentence." 905 F.2d at 1006.

In this case, the jurors were given a list of the five statutory mitigating factors in addition to the all-encompassing "any other facts or circumstances" instruction. As in Silagy, the jury instructions in this case informed the jury that they could consider nonstatutory mitigating factors and therefore did not violate the Constitution.

Davis makes other challenges to the instructions. He contends that the instructions did not instruct jurors on the standard of proof on aggravation and mitigation and that jurors incorrectly understood that he bore the burden of persuasion on the issue of life or death. The portion of the instructions challenged by Davis reads:

A person found guilty of murder may be sentenced to death only if the jury unanimously recommends that the death sentence be imposed.

If, at the conclusion of your deliberations in accordance with the court's instructions, you unanimously recommend that the death sentence be imposed, then the defendant will be sentenced to death by the court.

On the other hand, if, at the conclusion of your deliberations, you do not unanimously recommend that the death sentence be imposed, then the defendant will be sentenced to imprisonment for a number of years, not less than 20, to be determined by this court.

Tr. of Oct. 28, 1980 at 180. The court also instructed the jury that:

If, after your deliberations, in this second stage of the sentencing hearing, you unanimously determine that there are no mitigating factors sufficient to preclude the imposition of the death sentence on the defendant, you should sign the verdict form which so indicates. In such a situation, you will be returning one verdict form indicating your verdict on the absence of any sufficiently mitigating factors. If you sign this form, the Court must sentence the defendant to death.

If, after your deliberations, in this second stage of the sentencing hearing, you are not unanimous in concluding that there is no mitigating factors sufficient to preclude the imposition of the death sentence, you must sign the "No Unanimous Verdict" Form. In this situation you will sign one verdict form indicating that you did not unanimously agree on the absence of any sufficiently mitigating factors sufficient to preclude the death penalty. If you sign this form, the Court will sentence the defendant to imprisonment.

Id. at 185-86. In addition to these boilerplate instructions (which track the Illinois death penalty statute), the court explained to the jury that Davis would be sentenced to death only if the jury's verdict was unanimous and that if the jury was not unanimous he would be sentenced to imprisonment. With all this, and additional clarifying instructions, the jury returned a unanimous verdict directing the court to sentence Davis to death. After the court read the verdict, it asked each member of the jury if each person voted to sentence Davis to death. All twelve jurors answered individually that they voted for the death penalty.

Davis points to a study conducted by the late Professor Hans Zeisel that purports to demonstrate that the Illinois Pattern Instructions in death penalty cases leave jurors hopelessly confused as to the standard of proof, the burden of persuasion, and a whole host of other factors. We considered Professor Zeisel's study in both Gacy and Free v. Peters, 12 F.3d 700, (7th Cir.1993), along with jury instructions that were materially identical to those challenged by Davis, and concluded that there was no constitutional violation. See Free, 12 F.3d at 705-706; Gacy, 994 F.2d at 307-10. As in Gacy, we invoke the presumption that the jurors understood and followed their instructions. Id. at 313. The instructions pass constitutional muster.

As to the burden of persuasion issue raised by Davis, we considered and rejected a similar claim in Silagy. We noted that the imposition of the burden of persuasion on a defendant is constitutional because at this point in the hearing, the defendant stands guilty of murder and the prosecution has proven that the requisite statutory aggravating factor exists, thereby making the defendant eligible for the death penalty. Silagy, 905 F.2d at 998.

The prosecution established that Davis had two prior murder convictions. By doing so, it satisfied its statutory obligation of proving the existence of aggravating factors. Even if the jury in Davis' case believed that Davis bore the burden of persuasion on the issue of life or death, or on the issue of mitigation, his sentence would not be unconstitutional. Id. Also, the instructions did not discuss which party bore the burden of persuasion because at that stage there is no burden.

The instructions given to the jury at Davis' sentencing hearing did not violate the Constitution. The Illinois death penalty statute is not unconstitutional on its face.

C. As Applied Challenge to the Illinois Death Penalty

Davis contends that the Illinois death penalty statute was and is applied in an unconstitutional manner. He charges that in Illinois the death penalty is meted out in an arbitrary and capricious manner so as to discriminate on the grounds of race. Davis also alleges that prosecutors did not request the death penalty for other criminal defendants whose crimes, like his, made them statutorily eligible for the death penalty.

Davis points to a study by Samuel Gross and Robert Mauro as support for his claim that in Illinois a person accused of homicide against a white victim is approximately six times more likely to receive the death penalty than a person accused of the same type of homicide against a black victim. The Gross and Mauro study also alleges that a black person who kills a white person is 3.75 times more likely to receive the death penalty than is a white person who kills a white person. Davis argues that the Gross and Mauro study along with the prosecutor's decision to exclude black members of the venire from the jury demonstrates that the decisionmaking process in his case was infected with racial bias.

We start with the Gross and Mauro study and, for purposes of this case, assume as true the statistical conclusions that Davis describes. Our analysis begins and ends with McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). Like Davis, the defendant in that case offered a study that purported to show a disparity in the imposition of the death sentence in Georgia based on the race of the victim and, to a lesser extent, the race of the defendant. Id. at 286, 107 S.Ct. at 1764. The study at issue in McCleskey suggested that defendants charged with killing white persons received the death penalty more often than those who killed black persons. Id. Also, black defendants received the death penalty more often than white defendants. Id.

The study found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims, 32% of the cases involving white defendants and white victims, 15% of the cases involving black defendants and black victims, and 19% of the cases involving white defendants and black victims. Id. at 287, 107 S.Ct. at 1764. Another part of the study at issue in McCleskey concluded that defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks and that black defendants were 1.1 times as likely to receive a death sentence as other defendants. Id.

The Court held that the study was not enough to support an inference that any of the decisionmakers in the defendant's case acted with discriminatory purpose. Id. at 297, 107 S.Ct. at 1769. Only "exceptionally clear proof" of a discriminatory purpose by the decisionmakers in the defendant's case, the Court stated, would be sufficient for a constitutional violation. Id. As the defendant in McCleskey relied solely on the study, the Court held that there was nothing to suggest that his case was constitutionally unsound.

McCleskey disposes of Davis' claim with respect to the Gross and Mauro study. As described by Davis, the Gross and Mauro study purports to show the same things as the study in McCleskey: black defendants are more likely to get the death penalty than white defendants, blacks who murder whites are more likely to receive the death penalty than whites who murder blacks, defendants who murder whites are more likely to receive a death sentence than defendants who murder blacks, and so on. Like the Court in McCleskey, we do not accept Davis' proposition that his sentence was imposed along racial lines.

Davis was convicted of murdering Biebel. The jury heard additional evidence of Davis' many other crimes, including two other murder convictions. The jury also heard the testimony of a survivor of one of Davis' attacks. Davis attempted to kill that person, but failed.

We decline to hold, as Davis urges, that an all-white jury was incapable of rendering a fair decision in accord with Illinois law. As to the apparent discrepancies along racial lines that the Gross and Mauro study announced, we note that such social science studies can cut a variety of ways. For example, the Department of Justice studied murder in large urban counties in 1988. That study concluded that whites and blacks were equally likely to receive the death penalty and that there were no statistically measurable differences in sentencing outcomes between white and black murder defendants. See Bureau of Just. Stats., U.S. Dep't of Just., Special Report, Murder in Large Urban Counties, 1988 (1993). We need not decide the relative merits of the Gross and Mauro study or the Department of Justice study. We note only that nothing in them, one way or the other, establishes any constitutional violation and certainly does not provide the exceptionally clear proof of discrimination required by McCleskey. That is all we need decide.

Finally, we consider Davis' assertion that prosecutors in other murder cases did not seek the death penalty and that doing so in his case (and not others) is arbitrary and capricious. Again, McCleskey is dispositive. The Court considered the same argument there and concluded that the defendant could not prove a constitutional violation by demonstrating that other defendants who might have been similarly situated did not receive the death penalty. McCleskey, 481 U.S. at 306-07, 107 S.Ct. at 1774-75.

One simple fact exists in this case: Davis was convicted of crimes for which the Constitution and Illinois law permit the imposition of the death penalty. The jury heard the evidence, including aggravating and mitigating evidence, and concluded that Davis' actions warranted the death penalty. That decision was within their discretion, was neither arbitrary nor capricious, and did not violate the Constitution.

The State of Illinois complied with the Constitution when it sentenced Girvies Davis to death. The district court's decision to deny Davis' petition for writ of habeas corpus is therefore

AFFIRMED.

 

 

 
 
 
 
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