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Andrew
KOKORALEIS
Andrew Kokoraleis
was convicted of a ritualistic mutilation and murder in DuPage
County.
Kokoraleis, of
Villa Park, Illinois, was one of the "Ripper" killers who police
say kidnapped, raped, tortured, murdered and mutilated as many as 18
Chicago-area women in 1981 and 1982 and was convicted in 1987 for
the murder of Lorraine Borowski, 21, of Elmhurst.
He filed numerous
appeals of his death sentence, but all were rejected, including a
request to the U.S. Supreme Court to hear his case.
Kokoraleis, his
brother and 2 friends are believed responsible for up to 17 cult-like
mutilation deaths in DuPage and Cook Counties.
In some cases the
gang -- Kokoraleis, his brother Tommy, Edward Spreitzer and
ringleader Robin Gecht -- cannibalized their victims.
"I've done many
homicide cases and I'd never heard of anything so horrendous in my
life," said Elmhurst Police Chief John Millner, who was a detective
and polygraph expert who took the November 1982 confession of Tommy
Kokoraleis. "He talked about raping the women, stabbing the women,
having sex with the knife wounds, cutting their breasts off to leave
what he called 'Robin's mark.'"
Gecht, 46, is
serving 120 years for attempted murder, rape, kidnapping and deviate
sexual assault. Spreitzer, 38, was sentenced to death for murder.
Tommy Kokoraleis, 38, got 70 years for murder.
Lorraine was beaten,
mutilated and stabbed after she was abducted on May 15, 1982, as she
was entering the real estate office where she worked. Her body was
found 5 months later on the property of a cemetery near Darien.
TruTV.com
131 F.3d 692
Andrew KOKORALEIS,
Petitioner-Appellant,
v.
Jerry GILMORE, Warden, Pontiac Correctional Center,
Respondent-Appellee.
No. 97-2605.
United States Court of Appeals,
Seventh Circuit.
Argued Nov. 25, 1997.
Decided Dec. 16, 1997.
Rehearing and Suggestion for Rehearing En Banc Denied Jan. 12, 1998.
EASTERBROOK, Circuit Judge.
Andrew Kokoraleis has confessed to
killing as many as 18 women. His confessions narrate a ghastly
routine: kidnapping, rape, torture, stabbing victims to death with
knives or ice picks, mutilating the corpses, and hiding the remains.
Some victims had a breast amputated by piano wire. Kokoraleis and
his confederates (his brother Thomas Kokoraleis, Robin Gecht, and
Edward Spreitzer) would masturbate on and then eat the victim's
breast.
A jury convicted Kokoraleis of
killing Lorraine Borowski and sentenced him to death. The Supreme
Court of Illinois affirmed, 132 Ill.2d 235, 138 Ill.Dec. 233, 547
N.E.2d 202 (1989), and rejected a collateral attack, 159 Ill.2d 325,
202 Ill.Dec. 279, 637 N.E.2d 1015 (1994), as did the district court,
963 F.Supp. 1473 (N.D.Ill.1997).*
Kokoraleis presents three
arguments to us: that he received ineffective assistance of counsel
at sentencing; that another jury's decision not to impose the death
penalty for his murder of Rose Beck Davis precludes capital
punishment for his murder of Lori Borowski; and that the evidence
does not support the conclusion that he is eligible for the death
penalty. The latter two arguments seek to preclude any capital
resentencing, so we start with them. Because the petition was filed
before April 24, 1996, the Antiterrorism and Effective Death Penalty
Act is inapplicable. Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059,
138 L.Ed.2d 481 (1997).
Illinois requires the
prosecutor to establish a defendant's eligibility for capital
punishment. One way to do so is to demonstrate that the
defendant killed at least two people and that "the deaths were
the result of either an intent to kill more than one person or
of separate premeditated acts". 720 ILCS 5/ 9-1(b)(3). (The
codification of Illinois law after the trial did not materially
change the language; for clarity we use the current citation.)
To meet this eligibility
requirement, the prosecution introduced into evidence a copy of
the judgment convicting Kokoraleis of murdering Davis, a crime
the state described as a "separate premeditated act". On direct
appeal the Supreme Court of Illinois remarked (138 Ill.Dec. at
249-50, 547 N.E.2d at 219-20):
The multiple-murder
aggravating circumstance ... requires that a defendant have been
convicted of murdering two or more persons. That was
unquestionably proved here. The sentencing jury had found the
defendant guilty of the murder of the victim in the present
case, Lori Borowski; whether the defendant was guilty of only
one other murder or of several other murders could not have
affected the jury's determination that he had been convicted of
at least two such offenses and that the multiple-murder
circumstance therefore was established. As we have seen, defense
counsel made no challenge to the evidence of the defendant's
prior conviction in Cook County for the murder of Mrs. Davis.
Notwithstanding this
observation, Kokoraleis argued in the district court that he is
ineligible for capital punishment because the judgment of
conviction does not show that "the deaths were the result of
either an intent to kill more than one person or of separate
premeditated acts".
The district judge sensibly
replied that this contention--not presented to the state courts
on direct appeal or collateral attack--has been forfeited. 963
F.Supp. at 1482. Kokoraleis maintains that, because the Supreme
Court of Illinois automatically reviews all death sentences, it
is impossible to forfeit a defense. An automatic-review
provision removes the possibility of forfeiture by failure to
appeal but does not preclude forfeiture by failure to advance a
particular argument.
Collateral review in federal
court is designed for persons who have presented their claims to
the state courts; unless they have done so, it is impossible to
say that the state failed to honor the accused's constitutional
rights. Litigants may decide for themselves which theories to
present and which to withhold. A non-decision on a withheld
theory does not justify collateral relief--particularly not when
the theory is grounded in state rather than federal law, and the
state's highest court has announced (albeit in dictum) that the
theory is unsound.
Kokoraleis was convicted of
first-degree murder for Davis's death, and first-degree murder
in Illinois requires proof of malice aforethought, which is to
say premeditation. Whether a judgment of conviction for another
first-degree murder satisfies 720 ILCS 5/9-1(b)(3) is a question
of Illinois law, and "[a] federal court may not issue the writ
on the basis of a perceived error of state law." Pulley v.
Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29
(1984). Like the district court, we think it unnecessary to
inquire whether the prosecution also established eligibility for
capital punishment under the felony-murder circumstance listed
in 720 ILCS 5/9-1(b)(6). In Illinois, one circumstance is enough.
Seeking to turn the Davis
conviction to his advantage, Kokoraleis contends that the jury's
decision in that case to sentence him to life imprisonment
precludes a death sentence for the Borowski murder. As he sees
it, Illinois is "collaterally estopped" to seek capital
punishment a second time for the same series of murders that was
before a prior jury. And because Ashe v. Swenson, 397 U.S. 436,
90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), holds that the double
jeopardy clause incorporates some aspects of collateral estoppel
(issue preclusion), Kokoraleis believes that he is entitled to
relief under § 2254.
This argument was presented to
the state's highest court on collateral attack and held to be
forfeited because it should have been made on direct appeal. 202
Ill.Dec. at 284, 637 N.E.2d at 1020. The district judge
concurred. 963 F.Supp. at 1479-80. Kokoraleis insists that he
could not have employed this argument on direct appeal because
it depends on the record of the Davis prosecution in Cook County,
which was not before the DuPage County court in the prosecution
for the Borowski murder. Yet if (as Kokoraleis believes) the
record of the Cook County prosecution was not an appropriate
subject of judicial notice, then it was the litigant's
responsibility to place it before the court.
That is, after all, how
preclusion defenses are made in civil litigation. A party who
seeks the benefit of issue or claim preclusion puts the
necessary documents into the record. A litigant who allows the
case to reach a final decision cannot later obtain relief under
Fed.R.Civ.P. 60(b) by pointing to his own failure to supply the
tribunal with the materials needed to make out a defense of
preclusion. The Supreme Court of Illinois did no more than apply
this understanding to a preclusion defense in a criminal case.
Kokoraleis insists that the
state court's decision to enforce its rules of procedure was so
freakish that it is not an adequate state ground of decision,
even if it is an independent one. See Liegakos v. Cooke, 106
F.3d 1381 (7th Cir.1997). Given what we have said about the
normal course of civil litigation, a state court's decision to
require a litigant to make an estoppel defense at trial and on
direct appeal hardly deserves the appellation "freakish".
But because the argument
Kokoraleis makes may recur in capital cases, we now indulge the
assumption that an exception to the forfeiture doctrine is
available and hold, as an alternative ground of decision, that
the double jeopardy clause does not prevent a state from
selecting a penalty independently for each crime a person
commits. This is clear enough for a serial bank robber, whose
penalty for the first offense does not set a cap on total
punishment for extra robberies; it is no less true for a serial
killer. Each additional crime creates a fresh exposure to
punishment, which may be cumulative--indeed, must be cumulative
if there is to be deterrence for extra offenses.
Kokoraleis tells us that the
question decided by the jury in the Cook County prosecution was
"whether he should be put to death for torturing and being a
serial killer of sixteen to eighteen women." Phrasing the
question in this way makes it possible to say that the two
juries decided the same issue. But this is not the question
either jury decided.
The Cook County jury selected
the punishment for the murder of Rose Beck Davis; the DuPage
County jury chose the punishment for the murder of Lori Borowski.
Each jury was entitled to consider facts about Kokoraleis'
background, including his other criminal acts (which by the time
of the prosecution for the Borowski murder included a prior
murder conviction), but this does not mean that the punishment
in a given case is for these other crimes; it is for the crime
of which the defendant now stands convicted. Otherwise every
recidivist statute would violate the double jeopardy clause by
imposing additional punishment for a crime that has already been
punished.
Yet many cases, of which Witte
v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351
(1995), is the best recent example, hold that enhancing the
punishment for a person's latest offense on account of prior
criminal conduct does not impose a second punishment for that
conduct. If enhancement does not amount to cumulative punishment,
it follows that a reduced punishment for the prior crime or even
acquittal of the prior charge does not preclude a higher
punishment for the current offense if the person selecting the
sentence concludes that the prior acts show that the offender is
more dangerous or depraved than the facts of the current crime
suggest when considered in isolation. United States v. Watts,
--- U.S. ----, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997), makes that
implication explicit by holding that a court may enhance the
sentence for the crime at hand on account of charges for which
the defendant was tried and acquitted.
Although Watts was sentenced
under the Sentencing Guidelines, the principle is general--as
the Court made clear by relying on Williams v. New York, 337 U.S.
241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), a capital case.
Kokoraleis was convicted rather than acquitted of the Davis
murder; if even an outright acquittal would not have precluded
its consideration when selecting the appropriate punishment for
the Borowski murder, then conviction accompanied by a lenient
punishment cannot have that effect.
To put the point in the
language of the double jeopardy clause: "nor shall any person be
subject for the same offence to be twice put in jeopardy of life
or limb" (emphasis added). Kokoraleis has been in jeopardy only
once for the murder of Lori Borowski, and his murder of Rose
Beck Davis is not "the same offence" under any approach. Ashe
holds that facts about an element of the offense established
adversely to the prosecution may not be relitigated when the
standard of proof is the same in each case, but no fact
concerning the Borowski murder was established adversely to the
state in the prosecution for the Davis murder.
What remains is a line of
argument that has become the staple of capital litigation:
petitioner's current lawyers contend that their predecessors
were incompetent. In retrospect, we know that prior counsel did
not craft a winning strategy; Kokoraleis received "ineffective"
assistance of counsel in this ex post sense. But the right
perspective is ex ante (at the time of the prosecution) rather
than ex post.
The sixth amendment does not
guarantee success or entitle defendants to the best available
counsel or the most prudent strategies. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
holds, and many later cases reiterate, that the Constitution is
satisfied when the lawyer chooses a professionally competent
strategy that secures for the accused the benefit of an
adversarial trial. Compare Holman v. Gilmore, 126 F.3d 876,
881-84 (7th Cir.1997), with Hall v. Washington, 106 F.3d 742
(7th Cir.1997). "[T]he purpose of the effective assistance
guarantee of the Sixth Amendment is not to improve the quality
of legal representation, although that is a goal of considerable
importance to the legal system. The purpose is simply to ensure
that criminal defendants receive a fair trial." Strickland, 466
U.S. at 689, 104 S.Ct. at 2065.
A trial may be adversarial and
fair even if the chosen strategy goes awry. Because counsel
cannot experiment with different strategies, it is difficult in
both principle and practice to know how best to proceed. Most
plans for the conduct of a trial entail risks, for jurors'
reactions are unpredictable. Circumstances of the crime and the
strategy at trial on the guilt issue also may constrain the
choices at a capital sentencing trial.
That is why "a court must
indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound
trial strategy.' There are countless ways to provide effective
assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way."
Ibid. (citation omitted).
Counsel put the state's case
to the test at sentencing. But his options were limited (or so a
competent lawyer could have thought) by Kokoraleis' testimony
before the same jury at trial. Kokoraleis took the stand and
denied killing Borowski or anyone else. All of the charges
against him were false, Kokoraleis insisted, and all four of his
confessions had been coerced.
Much evidence in addition to
the confessions tied Kokoraleis to the crimes, and the jury did
not accept his testimony, but at sentencing he again took the
stand and denied participating. Trying to make the best of this
situation, his lawyer advanced what has come to be called a
"residual doubt defense." Conceding that the jury already had
found Kokoraleis guilty beyond a reasonable doubt, counsel
argued that this is not enough to put a man to death. Only if it
is certain that Kokoraleis committed the murder should the jury
consider execution as a penalty, counsel argued.
Two religious figures (a
chaplain at Cook County jail and a counselor at the DuPage
County jail) testified that they found Kokoraleis to be helpful,
unthreatening, and a candidate for rehabilitation, setting up an
argument that capital punishment was unnecessary to protect
society. A character witness also testified for Kokoraleis.
Hindsight reveals that these lines of defense did not persuade
the jury, but it is impossible to deny that counsel put on a
defense informed by a professional assessment of available
options.
The legal team now
representing Kokoraleis believes that his prior lawyers should
have taken a different line of defense. Instead of arguing
"residual doubt" and presenting the mitigating testimony,
counsel should have contended that Kokoraleis was emotionally
disturbed, a pawn under Gecht's control.
In support of this alternative
line of defense current counsel tendered an affidavit by a
psychiatrist, who wrote that Kokoraleis appears to have "borderline
personality disorder", making him vulnerable to the influence of
a criminal cult organizer like Charles Manson.
The district court doubted
that this affidavit satisfies the standards of Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993), because it was based on Kokoraleis'
confessions rather than the interviews and tests a psychiatrist
normally uses to reach a diagnosis.
The district judge thought the
affidavit a poor basis on which to upset the judgment of a state
court. 963 F.Supp. at 1487-90. But the big question is not
whether Kokoraleis' current legal team has found a good witness;
it is whether his former lawyers should have suspected that he
was mentally impaired and conducted an appropriate investigation
in order to obtain evidence for use at sentencing. Burris v.
Parke, 116 F.3d 256, 259-60 (7th Cir.1997); Brewer v. Aiken, 935
F.2d 850 (7th Cir.1991).
The lawyer who represented
Kokoraleis at trial and sentencing testified that he had three
reasons not to pursue a diminished-mental-capacity or undue-influence
defense. One was that neither he nor any of Kokoraleis' family
and acquaintances suspected such a possibility; he appeared
normal to them all. Now obviously a serial killer who rapes,
tortures, and eats his victims after fetishistic, misogynous
ceremonies is not "normal"; but one can be abnormal without
being mentally impaired.
The jury well knew how deviant
the criminal conduct was. Kokoraleis and Spreitzer murdered
Borowski without Gecht's participation, which suggests that
Kokoraleis is abnormally wicked rather than abnormally deficient
in resistance to the control of others. Let us suppose that this
consideration is discounted--although Strickland suggests that
any considered tactical or strategic choice is entitled to the
strong presumption of competence.
Counsel's other two reasons
also represent a thoughtful (if not unimpeachable) exercise of
professional judgment. One is that counsel did not think it
would help to present a line of defense that would focus the
jury's attention on the repulsive details of the crimes Gecht,
Spreitzer, and the two Kokoraleis brothers (in various
combinations) committed. The other is that a defense along the
lines of "Gecht made me do it" could not be reconciled with the
defense on the merits: "I didn't do it."
Kokoraleis insisted that he
did not commit a crime. What competent lawyer labels his own
client a serial murderer and undertakes a defense at war with
the defendant's protestations of innocence? A lawyer is the
client's agent. Lawyers cannot condemn their own clients as
murderers who committed perjury to the jurors' faces. It does
not take a vivid imagination to see what argument would now be
before us had counsel denounced his client as a liar and argued
that the depravity of his crimes demonstrated a mental
shortcoming that made capital punishment inappropriate. Why
should the jurors accept the position of a man whose own lawyer
calls him a liar? How could anything the defense said thereafter
have been credible? Logical jurors could have concluded that the
defense was desperate, willing to say anything without regard to
the facts.
Current counsel contend that
the defense of innocence was irrelevant at sentencing; the jury
didn't buy it, so why cling to a losing strategy? Yet even after
a conviction things can get worse; a jury could think a multiple
murderer more blameworthy for being devious and manipulative.
Whether the jury would think this, however, is in the end
irrelevant. Counsel could believe that jurors would reason this
way. A reasoned decision to make the best of a bad situation by
pursuing a particular line of defense satisfies the
constitutional minimum.
Spreitzer likewise has been sentenced to
death, and earlier this year we held that this sentence
could not be upset on collateral attack. Spreitzer v. Peters,
118 F.3d 1211, amended, 127 F.3d 551 (7th Cir.1997). Thomas
Kokoraleis pleaded guilty in exchange for a sentence of 70
years' imprisonment. See People v. Kokoraleis, 193 Ill.App.3d
684, 140 Ill.Dec. 482, 549 N.E.2d 1354 (2d Dist.1990). The
state informs us that Gecht, who alone among the four did
not confess, has been convicted of attempted murder on the
testimony of a surviving victim and is serving a term of
natural-life imprisonment