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
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
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
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.
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.
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.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
"Taking him out of his cell in the middle of the
night like that is absolutely unheard of," said Mr. Johnson, the
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
"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
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
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
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.
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.
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.
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.
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
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
MR. KUEHN: Okay. Now, listen to me. I want you to
understand your constitutional rights. You understand?
MR. KUEHN: Do you have a lawyer?
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. 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?
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).
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
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
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
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.
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).
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.
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.
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.
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.
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
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.
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
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
B. Facial Validity of the Illinois Death
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.
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
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
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.
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
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.
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
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
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.
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.
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
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