Hernando Williams (c. 1955 – 25 March 1995) was a convicted murderer, executed by the State of Illinois.

On 29 March 1978, Williams, a young black man, kidnapped Linda Goldstone, a white woman, from the Northwestern Medical Center parking lot in Chicago, Illinois.

Goldstone, the wife of a physician and mother of a young boy, was on her way to teach a Lamaze class when Williams approached her, gun in hand. He told her it was a robbery. She gave him her money, but Williams made her partially disrobe and get into the front seat of his car. Williams held Goldstone captive for more than two days.

At the time of his kidnapping of Goldstone, Williams was out on bail for kidnapping and rape of another woman.

He drove around with her in the trunk of his car for several days, even attending a court hearing in Maywood, Illinois with her in his trunk. At the hearing, the assistant state's attorney told the judge he was not ready for trial and Williams left the courtroom a relatively free man.

When he returned to the court parking lot, he saw some people who appeared to be talking to the trunk of his car. He told those people to get away and left the scene with Goldstone still in the trunk. One of those who had talked to Goldstone while she was in the trunk at the Courthouse, reported the license plate number to the police. Police did not act on the tip.

Williams spent two nights in different motels with Goldstone and later admitted that he sexually assaulted her.

At around 5:00 a.m. on 1 April 1978, Williams let Goldstone go, giving her $1.25 for bus fare and telling her to get on a bus and go home. Instead, she approached a home, knocked on the door, and asked for help. The door was opened by a Chicago firefighter. Goldstone told him that she needed help. The firefighter told her that he would call the police. Then he closed the door, leaving her outside.

Meanwhile, Williams had gotten nervous, doubting whether Goldstone would keep her promise and get on a bus. He circled back around the block and saw her speaking to a man inside a house. After the firefighter had closed the door, Williams got out of his car and called to Goldstone. He led her around to a back alley where he shot her twice and left her. Some hours later, Chicago Police found Williams at his parents' home, washing out the trunk of his car.

A psychiatrist who examined Williams before trial reported that Williams suffered from "borderline personality disorder with episodic deterioration in reality testing and thought processes with episodic psychotic thinking".

At the urging of his attorneys, Williams pleaded guilty to aggravated kidnapping, robbery, rape, and murder. The hope of the entire team was that Hernando would escape the death penalty. The strategy did not work. The state's attorneys prosecuting the case systematically removed all blacks from the jury.

In January 1980, the all-white jury sentenced Hernando Williams to death. He was executed by lethal injection on 25 March 1995 at the age of 40.

Williams was briefly married to Shirley Coleman, but they were already divorced by the time of the murder.

Wikipedia.org

2 Executions In Illinois, Rarity There

By Don Terry - The New York Times

March 23, 1995

The first double execution in Illinois in 43 years, and the first outside the South since the 1976 Supreme Court ruling that allowed reinstatement of the death penalty, was carried out by lethal injection at the Stateville Correctional Center near here early this morning.

As killers go, the two men put to death were "just a couple of average Joes," and so the carnival atmosphere that often accompanies the end of more notorious criminals was absent outside the prison's high walls.

Baptist ministers opposed to capital punishment prayed for the souls of the condemned men and for the state, a woman walked through the cold darkness carrying a sign that said, "Execute Justice, Not People," and most of the demonstrators on both sides of the issue had gone home before the executions were complete.

When the serial killer John Wayne Gacy was executed last May behind the same prison walls, people sold T-shirts. And they chanted "Let the clown die!" so loudly that a man who lives a couple of miles away, Jesse Cantu, heard the commotion and hurried to the prison to join the fun.

In contrast to that night, when Mr. Cantu found hundreds of people eager for the condemned prisoner's death, this time there were only a few death-penalty proponents like himself, along with several dozen opponents.

"These were just a couple of average Joes, who committed one terrible crime apiece," Mr. Cantu said. "They're not famous. Maybe that's why more people aren't here. But I came out to have some fun and to support the death penalty."

Indeed, if there was anything at all extraordinary about this early morning's proceedings, it was just how ordinary the ritual of executions has become. A total of 270 people have now been put to death by the states since the Supreme Court's 1976 ruling, and the routine outside the prisons has become all but unvarying: Officials emerge to tick off the details matter-of-factly -- the condemned's last meal, his last words -- and protesters pack up their candles and begin planning their next vigil.

One demonstrator today, Bill Pelke, a 47-year-old steelworker, said that last year he stood outside four prisons, from Idaho to Indiana, to protest executions. Today's vigil was his first of this year, he said, "and I hope my last, but I know it won't be."

"They're all the same," he said. "Tragic."

The condemned men -- Hernando Williams, the 40-year-old son of a Chicago minister, and James P. Free Jr., 41, a former Army mechanic who grew up in Chicago's western suburbs -- committed unrelated murders and did not know each other until they were sent to death row nearly 17 years ago.

They died about an hour apart.

Mr. Williams was black, Mr. Free white. They were executed together, prison officials said, simply because their appeals had been exhausted at the same time. But some protesters outside the prison said they believed that the state had timed the executions to coincide as a way of demonstrating that capital punishment in Illinois was applied without prejudice.

Mr. Williams was sent to his death for the 1978 murder of Linda Goldstone, a 29-year-old childbirth instructor. He forced her into the trunk of his car in Chicago and drove her around the city for 36 hours, raping her at least twice and keeping her in the trunk even as he attended a court hearing on an earlier rape charge.

After once giving her $1.25 for bus fare and freeing her, he changed his mind a few minutes later, recaptured her and forced her back into his car. Finally he shot her to death.

The Williams case has become a bizarre issue in a current City Council race in Chicago. Mr. Williams was briefly married to Shirley Coleman, who is now a Councilwoman, and, although they were divorced before the murder, her opponent in an April 4 runoff, Hal Baskin, has been quoted in The Chicago Sun-Times as apparently blaming her at least partly for the crime. "She may not have been giving the man what he needed at home," he said.

As for Mr. Free, he was convicted of the 1978 murder of Bonnie Serpico, 34. He was on leave from the Army when he slipped into the office of a data-processing company in a suburb of Chicago and, carrying a gun and a knife and wearing a towel wrapped around his face, tried to rape Ms. Serpico and a co-worker. Ms. Serpico broke away, and Mr. Free shot her to death. He also shot the co-worker, who survived.

When it came time for Mr. Williams to die today, he had no last words, the authorities said.

Mr. Free, however, asked for forgiveness, adding, "Taking my life will not bring back the victims."

U.S. Supreme Court

WILLIAMS v. ILLINOIS , 466 U.S. 981 (1984)

466 U.S. 981

Hernando WILLIAMS v. ILLINOIS.

Wendell Byron DIXON v. ILLINOIS.

Lonnie YATES v. ILLINOIS.

No. 83-5785. No. 83-5966. No. 83-6199.

Rehearing Denied June 25, 1984. May 14, 1984.

On petition for writ of certiorari to the Supreme Court of Illinois. On petition for writ of certiorari to the Appellate Court of Illinois, First District. On petition for writ of certiorari to the Supreme Court of Illinois.

The petitions for writs of certiorari are denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting. [ Williams v. Illinois 466 U.S. 981 (1984) ][981-Continued.]

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgments of the Supreme Court of Illinois and the Appellate Court of Illinois insofar as they left undisturbed the death sentences imposed in these three cases. Gregg v. Georgia, 428 U.S. 153, 231 , 2973 (1976) (MARSHALL, J., dissenting). However, even if I believed that capital punishment were constitutional under certain circumstances, I would vote to grant these petitions because they present a substantial constitutional challenge to the Illinois state's attorneys' practice of using peremptory challenges to exclude Negro jurors from participating in capital cases.

The claim raised in these petitions is distressingly familiar. Whenever a Negro defendant is charged with a capital offense, there is a substantial chance that the prosecution will employ its peremptory challenges to remove Negroes and other minorities from the jury panel. See Gilliard v. Mississippi, 464 U.S. 867 , 867-868, and n. 3, 43 and n. 3 (1983) (MARSHALL, J., dissenting) (listing cases in 19 different jurisdictions raising the issue since 1979). Illinois provides a striking, but by no means isolated, illustration of the dimensions of the problem. Since 1959, the Supreme Court of Illinois has reviewed at least 33 cases in which criminal defendants have alleged prosecutorial misuse of peremptory challenges to exclude Negro jurors. See People v. Payne, 99 Ill.2d 135, 152-153, 75 Ill.Dec. 643, 651-652, 457 N.E. 2d 1202, 1210-1211 (1983) (Simon, J., dissenting) (list of cases). Petitioners in these three cases stand at the end of a long line of Negro criminal defendants who claim that the State of Illinois has denied them trial by a fair cross-section of the community.

The intentional exclusion of Negro jurors is particularly pronounced in capital cases in Illinois. Since the enactment of the latest Illinois Death Act, 29 juries have been empaneled to sentence Negro defendants in capital cases. Nineteen of these juries were all-white, and five had only one Negro juror. Illinois Coalition Against the Death Penalty, Death Sentences in Illinois (July 31, 1983). It is simply inconceivable that the racial composition of these juries was the result of statistical anomaly. According to the most recent Census figures, 14.65% of the Illinois population is Negro.2 If the jury-selection process in Illinois were completely race-blind, roughly 17% of all juries would be expected to have one or no Negro jurors. In fact, more than 80% of the Illinois sentencing juries have had less than two Negro members when the defendant was a Negro. [466 U.S. 981 , 983]   In reviewing petitioner Williams' appeal, the Illinois Supreme Court reviewed these jury-composition statistics prepared by the Illinois Coalition. 97 Ill.2d 252, 273, 73 Ill.Dec. 360, 370, 454 N.E.2d 220, 230 ( 1983). Despite the clear import of the figures, the Illinois Supreme Court concluded that the statistics were insufficient to establish prosecutorial misconduct under Swain v. Alabama, 380 U.S. 202 (1965).3 Since in Illinois Swain presents the only limitations on a prosecutor's use of peremptory challenges, the Illinois Supreme Court concluded that the procedure used to select petitioner Williams' jury, like the procedures used in the trials of petitioners Yates and Dixon, was without constitutional defect.

A majority of this Court has already recognized that the exclusion of minority jurors through peremptory challenges is a significant constitutional issue this Court will some day have to address. McCray v. New York, 461 U.S. 961 , 961-962 (1983) ( opinion of STEVENS, J., joined by BLACKMUN and POWELL, JJ.); id., at 966- 967 (MARSHALL, J., joined by BRENNAN, J., dissenting). As the years pass, it becomes increasingly clear that the problem will not be solved until this Court intervenes. See Gilliard v. Mississippi, supra, 464 U.S., at 873 . Over the last 12 months, I have twice urged the Court either to reconsider our decision in Swain v. Alabama, supra, or to address the distinct question whether the Sixth and Fourteenth Amendments prohibit the States from excluding potential jurors solely on the basis of race. See McCray v. New York, supra, 461 U.S., at 963 (MARSHALL, J., dissenting); Gilliard v. Mississippi, supra. These petitions present the Court with three more opportunities to protect criminal defendants against jury-selection procedures that are clearly racially discriminatory. Again today, I urge my colleagues to grant [466 U.S. 981 , 984]   certiorari on what I believe to be one of the gravest and most persistent problems facing the American judiciary today.

I dissent from the Court's refusal to confront this issue.

*****

945 F.2d 926

Hernando Williams, Petitioner-Appellant,
v.
James Chrans and Neil F. Hartigan, Respondents-Appellees.,

Docket number: 90-2707

Federal Circuits, 7th Cir.

RIPPLE, Circuit Judge.

Hernando Williams pled guilty to state charges of armed robbery, aggravated kidnapping, rape, and murder. A jury sentenced Mr. Williams to death. The conviction and sentence were affirmed on direct appeal to the Illinois state courts. A petition for collateral review likewise resulted in no relief. Mr. Williams then petitioned the district court for habeas relief under 28 U.S.C. 2254. The district court denied his petition, 742 F.Supp. 472. Mr. Williams appealed. For the following reasons, we affirm the judgment of the district court.

I

* BACKGROUND

A. Facts

II

ANALYSIS

The people of Illinois, through their elected representatives, have decided that, under certain circumstances, the crime of murder ought to be punished by death. In this case, the state, acting through an elected prosecutor, asked that such a penalty be imposed. An Illinois jury agreed and the courts of Illinois have determined that the jury's decision is lawful as a matter of state law.

The state courts also have determined that the imposition of death by the state in this case does not offend federal constitutional standards. It is, of course, only this last decision that is reviewable on petition for a writ of habeas corpus in the district court and, on appeal, in this court. With this perspective in mind, we shall address each of Mr. Williams' contentions. In each instance, we set out, when appropriate, the analysis of the district court. We also note that we have had the benefit of excellent briefs and oral presentations by both counsel for the state and counsel for Mr. Williams, who, we gratefully note, served by appointment of the court.

A. Coercion of Guilty Plea

The Cook County Public Defender's Office assigned four attorneys to represent Mr. Williams. According to their affidavits, which the district court took as true for purposes of this claim, they initially agreed that Mr. Williams should continue to plead not guilty and proceed to trial. A psychologist and psychiatrist were hired to assist in jury selection, to assess Mr. Williams' competency to stand trial, and to advise on the merits of an insanity defense.

Mr. Williams argued in the state courts that he entered the plea unintelligently because he was unaware that the death penalty was an option after a guilty plea. The Illinois Supreme Court denied the claim. It noted that the trial court told Mr. Williams numerous times that he could be subject to the death penalty, and there was no evidence that he was informed otherwise.7

More fundamentally, Mr. Williams has not demonstrated that he was prejudiced by his counsels' failure to challenge the voluntariness of his guilty plea. The test for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). "Simply because the [defendant] was subjected to pressure from sources not associated with the state or prosecutors does not mean that [the defendant's] guilty plea was necessarily involuntary. It is not an uncommon occurrence that a criminal defendant is pressured to some extent by co-defendants, friends, and relatives.

B. Constitutionality of the Illinois Death Penalty Statute

We now turn to the penalty phase of the state proceeding. Mr. Williams submits that the part of the Illinois statute detailing the procedure for determining whether the death penalty ought to be imposed is constitutionally infirm. He sets forth several arguments that, in his view, are not precluded by this court's earlier decisions. He also asks this court to consider several additional issues which, while admittedly precluded by this circuit's current case law, require, he contends, reappraisal. The state submits that all of Mr. William's contentions are precluded by this court's decision in Silagy v. Peters, 905 F.2d 986 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1024, 112 L.Ed.2d 1106 (1991).

The defendant may present any aspects of the defendant's character or record, and any of the circumstances of the offense that militate against the imposition of the death sentence. The criminal rules of evidence are relaxed in this phase. The following statutory language provides the standard by which the jury is to assess the mitigating and aggravating factors:

If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.

Mr. Williams raises a number of constitutional challenges to the Illinois death penalty statute that, he submits, are not precluded by the court's earlier decision in Silagy. First, Mr. Williams argues that the statute does not permit an individualized determination of the appropriateness of a death sentence. Second, he argues that the statute places an impermissible burden of persuasion on capital defendants. Third, Mr. Williams contends that the statute is unconstitutionally vague. We shall review each.

1. Individual sentencing determination

Mr. Williams' initial constitutional argument is that the Illinois death penalty statute improperly requires the defendant's mitigating evidence "to preclude" the death penalty, and thus removes from a sentencing jury the discretion to determine in each individual case whether the aggravating and mitigating evidence supports the imposition of a death sentence. See Ill.Rev.Stat. ch. 38, p 9-1(g). "Because of the word 'preclude,' this language does not direct a sentencing jury to weigh the evidence. The statute does not permit the jury to sentence the defendant to a punishment less than death if mitigating evidence narrowly outweighs aggravating evidence." Petitioner's Br. at 52.

In Silagy v. Peters, the court rejected the argument that section 9-1(g) prevents the sentencer from basing its sentencing determination on the individual characteristics of the defendant and the unique circumstances of the crime. The court relied upon the Supreme Court's decision in Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990).

In Blystone, the Supreme Court reviewed the Pennsylvania death penalty statute, which permitted the death penalty "if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances." Id. 110 S.Ct. at 1081 (emphasis added). In upholding the Pennsylvania statute, the Supreme Court wrote that "[d]eath is not automatically imposed upon conviction for certain types of murder. It is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances in the particular crime committed by the particular defendant." Blystone, 110 S.Ct. at 1082.

Mr. Williams endeavors to distinguish Blystone by highlighting the different wording of the Pennsylvania statute (requiring aggravating factors to "outweigh " mitigating factors) and the Illinois statute (requiring mitigating factors "sufficient to preclude " the death penalty). Having thus attempted to distinguish Blystone, which served as the foundation of the court's decision in Silagy, Mr. Williams asserts that Silagy does not govern his case.

Because this court already has determined that no meaningful difference exists between the Illinois and the Pennsylvania statutes on this issue, we cannot accept Mr. Williams' argument that the Illinois statute fails to require the sentencer to base its determination on the individual characteristics of the defendant and the unique circumstances of the crime.

2. Burden of persuasion

Mr. Williams' second argument is that the Illinois statute places an impermissible burden of persuasion on capital defendants. Under Mr. Williams' view of the statute, because mitigating factors must be "sufficient to preclude" the imposition of the death penalty, the defendant carries the burden of proving beyond a reasonable doubt that death is the wrong sentence. Appellant's Br. at 56.

The petitioner in Silagy argued that the statute created a mandatory rebuttable presumption in favor of the death penalty, thus impermissibly shifting the burden of persuasion to the defendant to show that the death penalty is inappropriate in his case. The Silagy court, however, found that this language did not place an unconstitutional burden on defendants. "Section 9-1(g), simply provides a balance upon which the sentencing authority can place the various mitigating and aggravating circumstances to determine whether the imposition of the death penalty is appropriate in a particular case." 905 F.2d at 998.

The court agreed with the Illinois Supreme Court that the State " 'bears the primary burden of persuading the jury that, as the statute states, there are no mitigating factors sufficient to preclude the sentencer from imposing the sentence of death for which the defendant is eligible.' " Id. (quoting People v. Bean, 137 Ill.2d 65, 147 Ill.Dec. 891, 925, 560 N.E.2d 258, 292 (1990)).

After the state has attempted to persuade the jury that the death penalty should be imposed, the defendant then may attempt to dissuade the jury from imposing the death penalty. If the defendant attempts to dissuade the jury from imposing the death penalty, the statute imposes a burden of persuasion on him. "[T]he imposition of such a burden of persuasion on a defendant 'is constitutional because at this point in the hearing the prosecution has already proven beyond a reasonable doubt that a statutory aggravating factor exists making the defendant eligible for the death penalty, and the jury is now weighing aggravating and mitigating factors presented by both the State and the defendant.' " Id. (quoting Bean, 147 Ill.Dec. at 925, 560 N.E.2d at 292) (citation omitted).

3. Vagueness

Mr. Williams' third attack on the constitutionality of the Illinois death penalty statute is that it is impermissibly vague. Mr. Williams suggests that the statute is vague in three respects: a) the burden of persuasion placed on defendants during the aggravation/mitigation phase; b) the "sufficient to preclude" language in the statute itself; and c) the jury instruction based upon the statute to the effect that the jury should return a verdict against the death penalty if the jury "cannot unanimously conclude that there are no sufficiently mitigating factor or factors to preclude the imposition of the death penalty." Tr. 5493.

a. burden of persuasion

This court stated in Silagy that the burden of persuasion provision "in a constitutional way guides the jury (or judge) in determining under what circumstances the death penalty should be imposed." 905 F.2d at 998. Because the statute provides "for a certain result based on the balance struck by the jury between the aggravating and mitigating circumstances," the court found that the statute did not impose the death penalty in an arbitrary or capricious manner. Id. In short, this court already has determined that the statute is not vague with regard to the burden of persuasion at the sentencing hearing.

b. "sufficient to preclude"

c. jury instructions

Mr. Williams also challenges the jury instruction used in his case, contending that it prevented the jury from making an intelligent decision. The jury was instructed that:

If, after your deliberations, you unanimously determine that there are no sufficiently mitigating factor or factors to preclude the imposition of the death sentence on the defendant, you should sign the verdict form which so indicates.

If, after your deliberations, you cannot unanimously conclude that there are no sufficiently mitigating factor or factors to preclude the imposition of the death sentence, you should sign the form which so indicates.

Tr. 5493. The jury later was instructed that:

If after your deliberations one or more jurors conclude that the defendant should not be sentenced to death, all jurors shall sign the verdict reflecting the jury's inability to reach a unanimous verdict.

If after your deliberations you unanimously conclude that the defendant should be sentenced to death, all jurors shall sign the verdict reflecting the jury's unanimous conclusion that the court shall sentence the defendant to death.

Tr. 5495.

The Supreme Court recently has refined the proper standard by which to evaluate vagueness challenges to jury instructions. "We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990). The Supreme Court also stated that

[j]urors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.

Id. After reading the instructions as a whole, we are convinced that the jury was adequately guided by the instructions and that the jury was not prevented from considering all constitutionally relevant evidence. In our view, the instructions, read as a whole, directed the jury to balance aggravating and mitigating factors and to impose the death sentence only if all members of the jury concluded that aggravating factors outweighed mitigating factors. Therefore, the Illinois statute is not unconstitutionally vague.

4. Other challenges

Mr. Williams requests this court to reconsider several rulings admittedly controlled by its prior rulings.

a. prosecutorial discretion

In Silagy, the petitioner argued that the prosecutor's unfettered discretion under § 9-1(d) of the statute in deciding whether to seek the death penalty in a particular case violates the eighth amendment. The court rejected this argument and held that prosecutorial discretion was analytically distinguishable from the post-conviction discretion that has served as the focus of the Supreme Court's concern in its death penalty jurisprudence. "The concern of the Court has been to limit and channel the discretion of the sentencing body--i.e., the judge or jury--which actually imposes the sentence in a given case." Silagy, 905 F.2d at 993 (emphasis in original).

b. lack of pretrial notice

The court noted that "the sixth amendment's guarantee of effective assistance of counsel is not valued for its own sake, but rather for an accused individual's ability to receive a fair trial. We do not believe that [the petitioner] received an unfair trial." Silagy, 905 F.2d at 995 (citation omitted). The court added that a rule mandating certain pretrial knowledge of the state's intention to pursue the death penalty would require prosecutors to commit one way or another as to whether to pursue the death penalty without the insight into the individual characteristics of the defendant that develop at trial.

c. consideration of nonstatutory factors

Section 9-1(c) of the Illinois statute states that "[t]he court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. Aggravating factors may include but need not be limited to [the statutory aggravating factors]."

The petitioner in Silagy contended that the statute violates the eighth and fourteenth amendments because it fails to assure that all aggravating factors relied on by the prosecution are relevant and constitutionally permissible. However, the court noted that the statute mandated that "the jury's discretion at the selection stage of the sentencing hearing is focused on that which is 'relevant' to the task at hand." 905 F.2d at 1000.

It also noted that the standard used by the Supreme Court on this issue was whether the jury's discretion was guided in a constitutionally adequate way and whether the jury's decision was so wholly arbitrary as to offend the Constitution. See Barclay v. Florida, 463 U.S. 939, 950-51, 103 S.Ct. 3418, 3425-26, 77 L.Ed.2d 1134 (1983). Because the Illinois statute's guidance of the jury's discretion did not fail this standard, the court found the petitioner's argument meritless in Silagy. Silagy, 905 F.2d at 1000-01.

Although Mr. Williams certainly is entitled to request this court to reconsider its prior rulings, see, e.g., Rheinstrom v. Commissioner, 925 F.2d 1066, 1069 (7th Cir.1991), he has not presented sufficient reason to overturn our established precedent. Under the doctrines of stare decisis and precedent, we conclude that Mr. Williams' challenges are controlled by Silagy.

In the district court, Mr. Williams proffered additional evidence in an attempt to meet the demands of Swain: a study by Professor Zeisel from the University of Chicago Law School that analyzed seventeen pre-1982 cases in which Cook County juries sentenced a black defendant to death; a breakdown of the composition of 32 Cook County juries in sentencing hearings in which the defendant was sentenced to death; a survey by the Chicago Tribune of 31 Cook County felony trials during July of 1984; and ten cases in which the Illinois Supreme Court remanded for a Batson hearing.21

We cannot say that Mr. Williams has presented evidence demonstrating that, "in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be," the prosecution removes qualified blacks from serving as jurors through the use of its peremptory challenges. Swain, 380 U.S. at 223, 85 S.Ct. at 837.

2. Contesting peremptory challenges under Batson

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court recognized the difficult burden of proof that Swain imposed upon defendants, and the Court thus implemented a less demanding burden of proof. Under Batson, a defendant can make a prima facie showing of discrimination solely on the basis of the prosecutor's use of peremptory challenges at his own trial. A defendant must demonstrate only that the use of peremptory challenges, and any circumstances relevant in his case, raises an inference that the prosecutor used the peremptories to exclude veniremen because of their race. Batson, 476 U.S. at 93-96, 106 S.Ct. at 1721-23.

3. Retroactive application of Batson

a. guiding principles

The "new rule" principle was articulated initially by Justice O'Connor in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion). "[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction becomes final." Id. at 301, 109 S.Ct. at 1070 (emphasis in original; citations omitted).

The new rule principle is intended to ensure that federal habeas review is compatible with the purpose of habeas corpus articulated in Sawyer by validating reasonable, good-faith interpretations of existing precedent made by state courts even though these interpretations are contrary to subsequent decisions. See Butler, 110 S.Ct. 1212, 1217 (1990).

Under the first exception, "a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.' " Teague, 489 U.S. at 307, 109 S.Ct. at 1073 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgment in part and dissenting in part)). In this case, as in Butler, the proscribed conduct is capital murder, the prosecution of which has not been forbidden by any statute or judicial decision. Therefore, this exception is clearly inapplicable to capital cases. Butler, 110 S.Ct. at 1218.

The second exception requires far more analysis. The Supreme Court has not ruled definitively on the question of whether the Batson holding is a "watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, 110 S.Ct. at 1263.28 Here, we must determine that issue in the special context of the capital sentencing procedure.

With respect to this case, two factors make the foregoing considerations a matter of significant concern. First, the crimes involved here are particularly susceptible to racial prejudice and passion. Because of the great discretion entrusted to a jury in a capital sentencing hearing, a unique opportunity exists for racial prejudice to operate but remain undetected. Turner v. Murray, 476 U.S. 28, 35, 106 S.Ct. 1683, 1688, 90 L.Ed.2d 27 (1986). "More subtle, less consciously held racial attitudes could also influence a juror's decision.... Fear of blacks, which could easily be stirred up by the violent facts of [the defendant's] crime, might incline a juror to favor the death penalty." Id. As the Illinois Supreme Court recently noted:

In a case where the defendant is black and the victim is white, we recognize, at the prima facie stage of establishing a Batson claim, that there is a real possibility that the prosecution, in its efforts to procure a conviction, will use its challenges to secure as many white jurors as possible in order to enlist any racial fears or hatred those white jurors might possess.

Second, we cannot ignore the possibility that a black juror might well have been more receptive to Mr. Williams' arguments in mitigation than a white juror. Mr. Williams presented evidence to the effect that he was a product of the urban ghetto; he claimed that his sister was raped when he was unable to escort her home because the police had delayed him in order to question him about the disappearance of a bicycle; he suggested that his behavior could be attributed in part to the shock that resulted from the brutalization of his sister, and the resultant destructive impact upon his family. Obviously, whether such a background impacts upon a juror's capital sentencing decision is an individual, subjective decision.

Indeed, capital sentencing necessarily is based on subjective determinations. "In a capital sentencing before a jury, the jury is called upon to make a 'highly subjective, "unique, individualized judgment regarding the punishment that a particular person deserves." ' " Turner, 476 U.S. at 33-34, 106 S.Ct. at 1686-87 (quoting Caldwell v. Mississippi, 472 U.S. 320, 340 n. 7, 105 S.Ct. 2633, 2645 n. 7, 86 L.Ed.2d 231 (1985) (quoting Zant v. Stephens, 462 U.S. 862, 900, 103 S.Ct. 2733, 2755, 77 L.Ed.2d 235 (1983) (Rehnquist, J., concurring in judgment))). A black juror, giving weight only to appropriate considerations, could well have been more empathetic and receptive to Mr. Williams' mitigation evidence.

We must acknowledge, however, that, despite the foregoing considerations, other countervailing factors must be weighed in our judgment. These are not factors that we have a right to evaluate de novo. This is an intermediate appellate court and its judges are bound to give respectful deference to the opinions of the Supreme Court. As we have noted already, the scope of review of federal habeas corpus proceedings has been a matter of great attention by the Court and its opinions delineate important considerations that must be weighed in our determination as to whether application of Batson in capital sentencing hearings falls within an exception to the "new rule" principle of Teague.

In Allen, the Court held that Batson did not go "to the heart of the truthfinding function." 478 U.S. at 259, 106 S.Ct. at 2880 (quoting Solem v. Stumes, 465 U.S. 638, 645, 104 S.Ct. 1338, 1343, 79 L.Ed.2d 579 (1984)). The Court recognized that "the rule in Batson may have some bearing on the truthfinding function of a criminal trial.... [But] we cannot say that the new rule has such a fundamental impact on the integrity of factfinding as to compel retroactive application." Id. (emphasis supplied). The Supreme Court noted that "the new rule joins other procedures that protect a defendant's interest in a neutral factfinder. Those other mechanisms existed prior to ... Batson, creating a high probability that the individual jurors seated in a particular case were free from bias." Id. (footnote omitted).

Therefore, the Court clearly did not believe that Batson implicated the fundamental fairness and accuracy of criminal proceedings in Allen. As we have noted already, sentencing in a capital case is an especially delicate task to entrust to jurors. Yet, as the Fifth Circuit pointed out, the same procedural devices available to ferret out or control passion and prejudice in an adjudication of guilt--voir dire and jury instructions--are available in the capital sentencing situation. See Prejean v. Smith, 889 F.2d 1391, 1397 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1836, 108 L.Ed.2d 964 (1990).

More fundamentally, Batson does not appear, in the parlance of Teague, to alter an understanding of a "bedrock procedural element." See Teague, 489 U.S. at 311-15, 109 S.Ct. at 1075-78. Batson undoubtedly implicates important considerations; but it is not analytically the equivalent of the Court's proffered example of a "bedrock principle"--the right to be represented by an attorney in all criminal trials for serious offenses (recognized in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). Although it created a significant break with prior precedent by easing the evidentiary burden of a defendant who contested the state's use of peremptory challenges, Batson did not create the underlying constitutional principle that blacks may not be systematically excluded from jury service. This distinction goes to Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), and Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

While the precise question before us has yet to be decided by the Supreme Court,36 we believe the existing case law requires us to hold that the rule in Batson may not be applied retroactively. At this point in the development of the case law, if a deviation from the course we have discerned is to come, it must come from the Supreme Court.

The part of the statement that Swies read was written by Mr. Williams' counsel and indicated that Mr. Williams "recognized responsibility for his conduct, was cooperative, and thought he could help others if he were allowed to live by showing through example the consequences of his conduct." 73 Ill.Dec. at 383, 454 N.E.2d at 243. On redirect examination, Swies read, at the request of the state and over the objection of Mr. Williams, the following portion of the victim impact statement:

Personal injury was death. The financial losses are not measurable. The victim, Linda Goldstone, was a 29-year-old mother of a 3-year-old son, the wife of a doctor. The impact that this crime had upon her immediate family, not to mention the parents of this woman, cannot be adequately put into words. The grief and sorrow inflicted upon them by this one man's deed is sufficiently aggravated to justify the death penalty. The loss of this woman to society will go unmeasured in time. She was on her way to teach a course in the Lamaze method of childbirth when her--when Williams abducted her. The irony is apparent. A woman and her husband, an obstetrician, devoted to assisting in giving life. A criminal bent upon taking it away.

Tr. 4377.

In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the Court held that the Eighth Amendment prohibits a jury from considering a victim impact statement at the capital sentencing stage. However, in Payne v. Tennessee, --- U.S. ----, 111 S.Ct. 2597, 2611, 115 L.Ed.2d 720 (1991), the Supreme Court explicitly overruled Booth. "We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant's moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant." Id. 111 S.Ct. at 2608.

The Court held that the state should be entitled to " 'counteract[ ] the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.' " Id. (quoting Booth, 482 U.S. at 517, 107 S.Ct. at 2540) (White, J., dissenting) (citation omitted). The Court thus held that the "Eighth Amendment erects no per se bar" to the use of victim impact evidence. Id. 111 S.Ct. at 2609.

The Court did not hold that states must, or even should, admit victim impact evidence. Moreover, the Court did not immunize victim impact statements from habeas review. "If, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment." Id. at 2612 (O'Connor, J., concurring). "[T]he appropriate standard of review for such a claim on writ of habeas corpus is 'the narrow one of due process, and not the broad exercise of supervisory power.' " Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974)). Thus, our review is limited to whether the use of the victim impact statement made Mr. Williams' sentencing hearing "so fundamentally unfair as to deny him due process." Donnelly, 416 U.S. at 645, 94 S.Ct. at 1872.

In applying this standard to the facts of Mr. Williams' sentencing hearing, we cannot say that his trial was rendered unfair by the use of the victim impact statement. The victim impact statement was relatively brief, especially when compared to the overwhelming amount of aggravating evidence admitted. The court instructed the jury to avoid passion and sympathy in reaching its decision. See 742 F.Supp. at 485; Tr. 5488.

Finally, although the state did use victim impact as a theme in its closing argument, the prosecutor's use of the victim impact evidence was not so inflammatory as to have rendered the trial unfair. We must recognize that the state should not be required to present victim impact evidence or closing arguments that are devoid of all passion. Such sterile prosecution of heinous crimes cannot be expected, let alone required.

Finally, we note that "[i]f there was any impropriety in having the lawyers' comments read, it must be kept in mind that the defense opened the door and should not complain that the prosecution also crossed the threshold." 73 Ill.Dec. at 383, 454 N.E.2d at 243. Because Mr. Williams used the mitigating evidence contained in the victim impact statement, the state clearly was entitled to "counteract" this evidence.

E. Exclusion of Defense Evidence

We agree with the district court that it was not error to exclude proffered evidence of the lack of deterrent value of the death penalty. Such evidence cannot be characterized as mitigating evidence "bearing on the defendant's character, prior record, or the circumstances of the offense." Lockett v. Ohio, 438 U.S. 586, 605 n. 12, 98 S.Ct. 2954, 2965 n. 12, 57 L.Ed.2d 973 (1978); see also Shriner v. Wainwright, 715 F.2d 1452, 1456 (11th Cir.1983), cert. denied, 465 U.S. 1051 , 104 S.Ct. 1328, 79 L.Ed.2d 723 (1984). Nor can we say that the state trial court violated Mr. Williams' right to a fair sentencing hearing when it excluded the testimony of a professor of psychiatry that Mr. Williams would be a good subject for further study.

It is difficult to characterize such testimony as "bearing on the defendant's character, prior record, or the circumstances of the offense." Lockett, 438 U.S. at 605 n. 12, 98 S.Ct. at 2965 n. 12. Therefore, the state Supreme Court was correct in ruling that it was not error to preclude such testimony. See People v. Williams, 97 Ill.2d 252, 73 Ill.Dec. 360, 384, 454 N.E.2d 220, 244 (1983).

In order to find an error harmless beyond a reasonable doubt, we must determine whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. at 24, 87 S.Ct. at 824; see also United States ex rel. Savory v. Lane, 832 F.2d 1011, 1019 (7th Cir.1987). "To say that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." Yates v. Evatt, --- U.S. ----, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991). When viewed in conjunction with the other evidence presented in this case, exclusion of Mr. Williams' "psychiatric evidence," of the type and quality contained in the proffer, even if erroneous, clearly did not contribute to the verdict.

F. Prosecutorial Misconduct

As he did before the district court, Mr. Williams also argues that pervasive misconduct by the prosecution rendered his sentencing proceeding unfair. In evaluating a claim of prosecutorial misconduct as a violation of the petitioner's due process right to a fair trial, the inquiry is whether the prosecutor's statements " 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)); see also United States v. Torres, 809 F.2d 429, 435 (7th Cir.1987).

Mr. Williams argues that the prosecution ignored court rulings when it told the jury that Mr. Williams should be sentenced to death in order to send a message to the entire community that such behavior will not be tolerated. He contends that this argument highlighted that he had not presented any psychiatric testimony, and made several references to Mr. Williams' possible release from prison if the jury should fail to sentence him to death.

The district court stated that "[s]ome of these actions did not constitute misconduct. Those statements that may be viewed as conscious attempts to ignore a court ruling and to exceed evidentiary bounds were infrequent in light of the volume and nature of the total evidence submitted by the prosecution." 742 F.Supp. at 491. We agree.

Although the trial court sustained defense objections to each of the prosecutorial comments made above, it does not follow that Mr. Williams was sentenced to death because of the objectionable comments made by the prosecutor, most of which occurred at the end of a six-week sentencing hearing.

Mr. Williams confessed that he abducted Mrs. Goldstone; that he held her captive in the trunk of his car for 36 hours; that he raped her twice; and that he murdered her by shooting her in the chest and head while she knelt in front of him. We are confident that Mr. Williams' sentence was a result of his own conduct, not of comments made by the prosecutor.

In reviewing the trial transcript, two additional factors support our conclusion that Mr. Williams' rights were not prejudiced by the prosecutor's remarks. First, the trial judge sustained the defense's objections and admonished the jury to disregard the utterances. Tr. 5476-78, 5482. Second, the jury was explicitly instructed that it should consider as evidence only the testimony of witnesses and the exhibits that the court received; the jury also was instructed that the arguments of counsel are not evidence. Tr. 5491.

United States v. Cortes, 922 F.2d 123, 127 (2d Cir.1990) (emphasis in original).42

He testified that the defendant was a very severe sociopath who showed no remorse for his actions and would commit similar crimes if given the opportunity. Id. 451 U.S. at 459-60, 101 S.Ct. at 1871-72. While explicitly limiting its holding to "the circumstances of this case," id. at 461, 101 S.Ct. at 1872, the Supreme Court held that the state trial court had committed error in admitting the psychiatrist's testimony. Wrote Chief Justice Burger:

During the psychiatric evaluation, respondent assuredly was "faced with a phase of the adversary system" and was "not in the presence of [a] perso[n] acting solely in his interest." Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.

Id. at 467, 101 S.Ct. at 1875 (citation omitted). He continued:

A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist, if his statements can be used against him at a capital sentencing proceeding.

Id. at 468, 101 S.Ct. at 1876. Notably, the Supreme Court specifically emphasized that the same fifth amendment concerns are not "necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination." Id. at 469 n. 13, 101 S.Ct. at 1876 n. 13.

b. fifth amendment concerns

Mr. Williams also argues that the use of the "no comment" response was an improper use of the invocation of his fifth amendment rights. He contends that the state used this fifth amendment invocation as substantive evidence that he lacked remorse in violation of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

The use of the "no comment" response amounted to no more than providing the jury with a complete picture of the presentence interview--the jury would have thought the interview was strange indeed if Swies had failed to ask Mr. Williams about the murder of Mrs. Goldstone. Cf. Rogers v. United States, 340 U.S. 367, 371, 71 S.Ct. 438, 441, 95 L.Ed. 344 (1951) (refusing to uphold fifth amendment privilege if invocation "would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony"); United States v. Davenport, 929 F.2d 1169, 1175 (7th Cir.1991) ("outside the coercive setting of a custodial interrogation, willingness to answer some questions can properly be given greater weight in deciding whether that willingness should forfeit the right to object to comment on a refusal to answer a particular question").

Although the prosecution did mention Mr. Williams' lack of remorse, these statements were based on the defendant's testimony and demeanor during trial, not on Swies' "no comment" reference. Id. Because the State never referred to Mr. Williams' comment, presented abundant evidence that Mr. Williams lacked remorse, and Mr. Williams' comment had very limited probative value, we agree with the district court that the admission of Swies' statement was, at worst, harmless error.

H. Aggravating Factors

Mr. Williams argues that, under Illinois law, the facts of his case did not permit the jury to find that he committed both murder in the course of a felony and murder of an eyewitness. His argument is based on People v. Brownell, 79 Ill.2d 508, 38 Ill.Dec. 757, 404 N.E.2d 181 (1980). In Brownell, the Illinois Supreme Court held that:

the aggravating factor relating to a murdered individual who was, or who may be, a witness against a defendant, or who may assist in the investigation or prosecution of a defendant, does not include the investigation or prosecution for the offenses which occurred in the course of the commission of the murder offense, including the murder offense itself.

Id. 38 Ill.Dec. at 766-67, 404 N.E.2d at 190-91. Mr. Williams contends that "a defendant charged with the aggravating factor of murder in the course of another felony cannot simultaneously be charged with the additional aggravating factor of murdering a potential witness, if the witness was also the victim of the predicate felonies. Yet that is precisely what happened here." Appellant's Br. at 33.

The district court's conclusion emphasized that the rule in Brownell must be read in light of the facts of that case. "The Brownell court was faced with a finding by the trial judge that the defendant's murder victim was also an eyewitness to other felonies by mere virtue of the fact that she could have testified against him as to the contemporaneous felonies." 742 F.Supp. at 495-96.

We think that the circumstances here are sufficiently different from those in Brownell to permit us to reach a different conclusion. Here, the evidence showed that after kidnapping and raping the victim, the defendant set her free with instructions to go directly home and not to call the police. She did not obey, however, and went to a house for help. The owner of the house told her he would call the police for her and he did so. The defendant was actually secretly watching her, and he took her off and murdered her. The police were on their way to the scene in response to the resident's phone call at the time of the killing.

By his own admission, the defendant acted as he did because he knew Mrs. Goldstone was going to report the crimes to the police....

Under these circumstances, the jury could have found both that the murder was committed "in the course" of the other felonies, and that the victim was an eyewitness. There is no significant difference between the circumstances here and a situation in which a defendant kidnaps and rapes the victim, sets her free, and at a later time kills her while she is on her way to testify against him. The latter situation is clearly within this court's understanding of the statute considered in Brownell. We do not see why the General Assembly would not have intended the circumstances here to be within the statutory factor.

73 Ill.Dec. at 369, 454 N.E.2d at 229 (emphasis supplied).

742 F.Supp. at 496. Illinois law, then, as interpreted by the Illinois Supreme Court, permitted the jury to conclude that Mr. Williams committed both murder in the course of a felony and murder of an eyewitness.

A habeas petitioner cannot challenge a state court's construction of state law. "If the state law, as construed by the state's tribunal, provided an unconstitutional result, then the writ should be granted, but not on the ground the state doesn't know its own law." United States ex rel. Bracey v. Fairman, 712 F.2d 315, 317 (7th Cir.1983).

Therefore, we review a state's determination of aggravating factors only to examine whether they "genuinely narrow the class of persons eligible for the death penalty and ... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); see also Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980) (must be principled way to distinguish between those cases in which death penalty imposed and those cases it was not); Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726, 2764, 33 L.Ed.2d 346 (1972) (White, J., concurring) (same).

Under the Illinois Supreme Court's construction of state law, there is a principled distinction between those who commit both murder in the course of a felony and murder of an eyewitness and those against whom only the former aggravating circumstance can be made applicable; as we have indicated above, the Illinois Supreme Court has defined reasonably those circumstances justifying a finding that the defendant murdered an eyewitness. This construction is neither vague nor overbroad, and provides a meaningful way to determine whether the eyewitness factor ought to be considered in a given case.

Conclusion

After consideration of the briefs, oral argument of counsel, and careful independent review of the record, we conclude that the district court committed no reversible error in denying the petition for a writ of habeas corpus. Accordingly, its decision must be affirmed.

AFFIRMED.

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