In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2282

John Pecoraro,

Petitioner-Appellant,

v.

Jonathan R. Walls, Warden,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 5361--John F. Grady, Judge.

Argued January 10, 2002--Decided April 1, 2002



  Before Posner, Ripple, and Rovner, Circuit
Judges.

  Posner, Circuit Judge. John Pecoraro was
convicted by a jury in an Illinois state
court in 1987 of murder and sentenced to
death. After exhausting his state
remedies, see People v. Pecoraro, 578
N.E.2d 942 (Ill. 1991), 677 N.E.2d 875
(Ill. 1997), he sought relief from the
judgment through federal habeas corpus,
which the district court denied after an
evidentiary hearing, precipitating this
appeal. Pecoraro challenges the
constitutionality of his conviction but
does not claim that if he was properly
convicted the sentence of death imposed
on him violated any of his federal
constitutional rights. He had a previous
conviction for a murder in which he and
some friends, after abducting and
shooting their victim, doused the body
with gasoline, lit it, and watched it
burn for some time, and under Illinois’s
death-penalty law--the constitutionality
of which is not questioned in this
appeal--that prior conviction was an
aggravating factor that warranted the
sentence. 720 ILCS 5/9-1(b)(3); see
Coleman v. Ryan, 196 F.3d 793, 796-97
(7th Cir. 1999); People v. Coleman, 660
N.E.2d 919, 939-40 (Ill. 1995). The
sentencing judge thought that Pecoraro’s
current crime involved another
aggravating factor as well: "the murder
was committed in a cold, calculated and
premeditated manner pursuant to a
preconceived plan, scheme or design to
take a human life by unlawful means." 720
ILCS 5/9-1(b)(11).

  These are the circumstances of that
crime. In December of 1982, Jimmy
Christian was found shot dead in his car;
the fatal bullet was a .357 magnum.
Martha Jackson, who worked with
Christian’s wife Nadine in a jewelry
business, had seen Pecoraro "kissing on"
Nadine and had heard him say, upon seeing
Jimmy Christian, who also worked for the
jewelry company: "She’s mine; if I can’t
have her, nobody will."

  Pecoraro was suspected from the first of
the murder, but was not charged. However,
more than three and a half years later,
in August of 1986, he flagged down a
police officer and told him that he
wanted to turn himself in for a murder.
He described the murder briefly to the
officer, who had no previous knowledge of
it. The officer then arrested him. At the
police station, after being given the
Miranda warnings, Pecoraro narrated the
Christian murder in detail. He explained
that he and Nadine had become lovers and
that Nadine had complained to him about
Christian’s beating her and her son and
that he had told her he’d kill Christian
if she wanted him to. He said that he had
used a .45 caliber pistol to murder
Christian, not a .357 magnum, and there
were a few other, but very minor,
discrepancies as well--understandably, in
light of the years that had elapsed since
the murder. Even the mistake about the
caliber of the gun might well have been a
memory lapse, especially if Pecoraro
owned more than one gun, as most gun
owners do, James B. Jacobs & Kimberly A.
Potter, "Keeping Guns Out of the ’Wrong’
Hands: The Brady Law and the Limits of
Regulation," 86 J. Crim. L. & Criminology
93, 103 n. 65 (1995), although there is
no evidence one way or another on whether
Pecoraro did.

  A prosecutor reduced Pecoraro’s
statement to writing, but Pecoraro
refused to sign it, saying, "I don’t want
to go to jail over this. I just want to
get it off my chest." Before trial he
tried to get the statement suppressed on
the ground that he had been so far under
the influence of cocaine and beer that he
could not make a voluntary statement.
After hearing witnesses for both sides
(including Pecoraro), the judge denied
the motion. The principal evidence for
the prosecution at trial was Pecoraro’s
confession, corroborated by the
circumstances in which Christian had been
killed, which Pecoraro would have been
unlikely to know had he not been the
murderer, and by Martha Jackson’s
testimony, which supplied the motive for
the killing. Doubtless fearing
impeachment by his prior murder
conviction (as well as by another
conviction, for shooting a teenage girl),
Pecoraro did not take the stand.

  The principal argument pressed on this
appeal is that the prosecution failed to
turn over possibly exculpatory evidence
to the defense, in violation of the rule
of Brady v. Maryland, 373 U.S. 83, 86
(1963). In evaluating this and Pecoraro’s
other arguments, we are confined to the
standard that Congress adopted in the
Antiterrorism and Effective Death Penalty
Act to govern federal courts’ review, in
habeas corpus proceedings, of
adjudications by state courts of the
merits of challenges to state
convictions. The Act authorizes us to
upset such a conviction only if the state
courts’ adjudication "resulted in a
decision that was contrary to, or
involved an unreasonable application of,
clearly established Federal law, as
determined by the Supreme Court of the
United States." 28 U.S.C. sec.
2254(d)(1). As held in Valdez v.
Cockrell, 274 F.3d 941, 946-47, 951-52
(5th Cir. 2001), and assumed in other
cases, United States v. Pierson, 267 F.3d
544, 550, 556 (7th Cir. 2001); Williams
v. Coyle, 260 F.3d 684, 697-98 (6th Cir.
2001), this standard is applicable even
though the district judge held an
evidentiary hearing. The evidence
obtained in such a hearing is quite
likely to bear on the reasonableness of
the state courts’ adjudication; that is
true; but we do not see why it should
alter the standard of federal review.

  The Brady doctrine is of course clearly
established law determined by the Supreme
Court; the only question concerning the
doctrine in this case is whether it was
unreasonably applied. In February of
1983, three months after the murder,
Martha Jackson signed an affidavit
stating that she had solicited Pecoraro
to kill her husband for $4,000; she had
already admitted this to the police, as
recorded in several police reports. She
was arrested, and agreed at the request
of the police to meet with Pecoraro and
secretly record their conversation; the
police hoped he would admit to her that
he was the murderer of Jimmy Christian.
The effort to incriminate Pecoraro
failed. Jackson was released from custody
and never charged with her crime. The
details of her agreement with Pecoraro,
as she described them to the police, were
odd: Pecoraro insisted that they put the
deal in writing and that the $4,000 be
paid in weekly installments of $20-30.
The writing was not produced. Nor was the
agreement carried out, or Jackson’s
husband harmed.

  The prosecution turned the police
reports of Jackson’s statements over to
the defense, but not her affidavit.
Pecoraro argues that it could have been
used to undermine her credibility as a
witness by establishing that she had a
motive to play ball with the police by
testifying against him. A failure to turn
over potentially exculpatory evidence is
actionable, however, only if material,
that is, only "if there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of
the proceeding would have been
different." Strickter v. Greene, 527 U.S.
263, 280 (1999), quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)
(concurring opinion); see also Wood v.
Bartholomew, 516 U.S. 1, 5 (1995) (per
curiam); Crivens v. Roth, 172 F.3d 991,
996 (7th Cir. 1999); In re United States,
267 F.3d 132, 135 (2d Cir. 2001). Since
Jackson’s affidavit merely repeated what
was in the police reports, we cannot say
that it was unreasonable for the state
courts to conclude that it was unlikely
that the defense could have used the
affidavit to produce an acquittal.
Granted that it was signed and under oath
and the police reports were merely
hearsay reports of what Jackson had told
the police, they were admissible hearsay
because Jackson’s admission that she had
hired Pecoraro to kill her husband was an
admission against her penal interest.
People v. Williams, 737 N.E.2d 230, 241-
42 (Ill. 2000); People v. Cruz, 643
N.E.2d 636, 650-51 (Ill. 1994); People v.
Rutherford, 653 N.E.2d 794, 800 (Ill.
App. 1995); People v. Kokoraleis, 501
N.E.2d 207, 220-21 (Ill. App. 1986).
Anyway a document doesn’t have to be
admissible as substantive evidence in
order to be used for purposes merely of
impeaching a witness (or refreshing his
recollection). In re Estate of Rennick,
692 N.E.2d 1150, 1157 (Ill. 1998). Nor is
there any suggestion that either Jackson
or the police would if asked have denied
that she had admitted her criminal act.
In short, the incremental effectiveness
of the affidavit for purposes of
impeachment would have been negligible--
or so at least the state courts could,
and did, reasonably conclude, which, to
repeat, is the only issue for this court.

  Defense counsel did not, however, use
even the police reports in cross-
examination of Jackson and so her
solicitation of Pecoraro to murder her
husband never was brought to the jury’s
attention. Pecoraro argues that this
failure constituted ineffective
assistance of counsel. The concern of
defense counsel was that if Jackson were
cross-examined about the solicitation,
the jury would learn that it was Pecoraro
whom she had hired and that this would
doom him in the jury’s eyes;
realistically, a limiting instruction
would not have been likely to cause the
jury to disregard so dramatic a bit of
evidence of Pecoraro’s willingness to
kill people. See Shepard v. United
States, 290 U.S. 96, 104 (1933) (Cardozo,
J.); United States v. Bowie, 142 F.3d
1301, 1306 n. 4 (D.C. Cir. 1998); United
States v. Daniels, 770 F.2d 1111, 1118
(D.C. Cir. 1985); United States v. Delli
Paoli, 229 F.2d 319, 321 (2d Cir. 1956)
(L. Hand, J.), aff’d, 352 U.S. 232
(1957); 1 Kenneth S. Brown et al.,
McCormick on Evidence sec. 59, p. 260
(5th ed. 1999). In determining the harm
(anessential element of the
constitutional doctrine of ineffective
assistance of counsel) caused by a
lawyer’s tactical decision, we must be
realistic rather than formalistic. We
must consider whether the tactical
decision was reasonable given a realistic
understanding of jury behavior, rather
than indulge the fiction that jurors
always obey the judge’s instructions
however much the instructions go against
the grain. There is no doubt that if
Pecoraro’s lawyer had allowed the jury to
learn about his deal with Jackson and
Pecoraro had been convicted, we would be
confronting a claim that the lawyer had
made a tactical decision so mistaken as
to constitute ineffective assistance of
counsel--and it would be a stronger claim
than the one urged here.

  As Pecoraro’s current counsel argues,
however, since the identity of the
killer-for-hire was not important to
Jackson’s credibility, the trial judge
might well have granted a motion in
limine to forbid her to mention his name
if she was cross-examined about hiring
someone to kill her husband. Even so, we
have trouble seeing what value the
solicitation would have had in cross-
examination, other than to blacken her
name. It is doubtful that the judge would
even have permitted it to be used to
cross-examine her. Jackson was not
testifying under any promise of leniency,
or pursuant to any other deal with the
prosecution--she had never made a deal
with the prosecution, even when she wore
a wire in an effort to gather evidence
that Pecoraro was indeed the murderer of
Jimmy Christian. And by the time she
testified at Pecoraro’s trial in 1987 the
statute of limitations on prosecuting her
for solicitation for murder had run, see
720 ILCS 5/3-5(b); People v. Thingvold,
584 N.E.2d 89, 90-91 (Ill. 1991); United
States v. Parades, 751 F. Supp. 1288,
1292-93 and n. 4 (N.D. Ill. 1990)--and
anyway she could not have been convicted
on her bare confession of that crime,
because her confession was
uncorroborated. People v. Hernandez, 521
N.E.2d 25, 37 (Ill. 1988); People v.
Neal, 489 N.E.2d 845, 850 (Ill. 1985);
People v. Willingham, 432 N.E.2d 861, 864
(Ill. 1982); People v. Banks, 678 N.E.2d
348, 357 (Ill. App. 1997). She had
nothing to gain from cooperating in the
prosecution of Pecoraro.

  The only real significance of defense
counsel’s putting the solicitation crime
before the jury would have been to show
that Jackson was a bad person, and that
is not a proper method of challenging
credibility when as in this case the
alleged criminal conduct sought to be
used to impeach the witness did not
result in a conviction. People v. Bull,
705 N.E.2d 824, 837 (Ill. 1998). It is
true that "the defendant may show or
inquire into the fact that a witness has
been arrested or otherwise charged with a
crime where it would reasonably tend to
show that the witness’ testimony might be
influenced by interest, bias, or a motive
to testify falsely," id.; see also
Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986); People v. Lucas, 603 N.E.2d
460, 474 (Ill. 1992), but we have just
seen that Jackson’s criminal offense
would not have shown any of these things.

  Furthermore, on December 11, 1982, just
three days after the murder of Jimmy
Christian, Martha Jackson had told the
police about Pecoraro’s romantic
involvement with Christian’s wife and
said she had suspected Pecoraro as soon
as she had heard that Christian was
missing. Although prior consistent
statements of a witness normally are
inadmissible hearsay, they are admissible
to rebut a claim that the witness’s later
consistent statement was a fabrication.
People v. Williams, 588 N.E.2d 983, 1003
(Ill. 1991); People v. Titone, 505 N.E.2d
300, 304 (Ill. 1986); see also Fed. R.
Evid. 801(d)(1)(B); United States v.
Stoecker, 215 F.3d 788, 791 (7th Cir.
2000); United States v. Patterson, 23
F.3d 1239, 1247 (7th Cir. 1994). So if
defense counsel had tried to impeach
Jackson’s testimony with the
solicitation, arguing that it showed that
her testimony was a fabrication designed
to curry favor with the authorities, the
prosecution could have introduced her
December 11 statement, made before she
was accused or, so far as appears,
suspected of having tried to hire someone
to kill her husband. Not only would the
admission of that statement have scotched
the effort to impeach her with the
solicitation; it would have shown that
Pecoraro was suspected of Christian’s
murder from the start and so it would
have undermined defense counsel’s
argument to the jury that Pecoraro’s
confession had "come out of the blue," a
product of his inebriation. Moreover, to
bolster the credibility of the December
11 statement, the prosecution would
probably have been permitted to present
evidence that Jackson had hired Pecoraro
to murder her husband, since that would
show that Jackson had good reason to
suspect Pecoraro of being capable of
murdering someone else, namely Jimmy
Christian.

  Mention of inebriation brings us to the
only other argument that warrants
discussion--that defense counsel was
ineffective for failing to call as a
witness an expert on the effects of mind-
altering substances, who would testify
that Pecoraro might, under the influence
of these substances, have confessed to a
murder that he had not committed. The
argument is based on an affidavit that
Pecoraro’s current counsel has obtained
from a clinical psychologist.

  There have been false confessions,
including false volunteered confessions,
as distinct from false confessions
extracted by torture, fraud, or other
coercive means. Smith v. United States,
348 U.S. 147, 153 (1954); O’Guinn v.
Dutton, 88 F.3d 1409, 1416-17 (6th Cir.
1996) (en banc) (per curiam) (concurring
opinion); Hugo Adam Bedau & Michael L.
Radelet, "Miscarriages of Justice in
Potentially Capital Cases," 40 Stan. L.
Rev. 21, 62-63 (1987). Conceivably they
are more likely to be made by people
under the influence of drugs or alcohol
than by the sober, since drugs and
alcohol reduce inhibitions; but actually
there is very little evidence of drug- or
alcohol-induced false confessions. See
id. at 63; State v. Burns, 691 P.2d 297,
302 (Ariz. 1984); State v. Baker, 606
P.2d 120, 123 (Kan. App. 1980). In any
event, the trial judge probably would not
have allowed an expert to testify for
Pecoraro on this issue. An expert witness
must base his testimony on the facts. Not
that he has to know the facts himself;
they can be established by other
witnesses and then used as the premise
for his testimony. Hulman v. Evanston
Hospital Corp., 631 N.E.2d 322, 329 (Ill.
App. 1994); Nelson v. Speed Fastener,
Inc., 428 N.E.2d 495, 498-99 (Ill. App.
1981); Elcock v. Kmart Corp., 233 F.3d
734, 756 n. 13 (3d Cir. 2000); Werth v.
Makita Electric Works, Ltd., 950 F.2d
643, 648 (10th Cir. 1991). But the facts
must somehow be gotten into the record
for expert testimony premised on them to
be admissible.

  At the pretrial evidentiary hearing on
Pecoraro’s motion to suppress his
confession as involuntary, see, e.g.,
United States v. Walker, 272 F.3d 407,
413 (7th Cir. 2001), several witnesses
testified to his having on the day of the
confession and the night before imbibed
large quantities of beer and cocaine,
while several police officers testified
that he appeared to be sober and the
judge found the officers more credible.
The principal witness on Pecoraro’s side,
however, was Pecoraro himself, and he
would not have given evidence at trial
about his inebriation because to do so
would have exposed him to impeachment
with his prior murder conviction. (A
defendant can, as Pecoraro did, testify
at a pretrial suppression hearing without
waiving his Fifth Amendment right not to
take the stand at trial. Simmons v.
United States, 390 U.S. 377, 393-94
(1968); United States v. Meyer, 157 F.3d
1067, 1080 n. 5 (7th Cir. 1998); United
States v. Bounos, 693 F.2d 38, 39 (7th
Cir. 1982); United States v. Smith, 783
F.2d 648, 650 (6th Cir. 1986).) As a
result, the expert’s testimony would have
lacked a factual foundation.

  What is more, the expert’s affidavit
states only that inebriation might have
caused Pecoraro to fabricate a
confession, not that it was likely to do
so. Drugs or liquor are more likely to
induce an involuntary though true confes
sion than a fabricated one. The expert’s
"might have caused" testimony would have
carried little weight with the jury
(quite apart from the fact that jurors
are unsympathetic to users of illegal
drugs), and the state would have had no
difficulty procuring an expert on the
other side. Pecoraro’s current counsel
has also made no effort to show that
reasonably competent defense counsel at
the time of trial would have found as
supportive an expert as current counsel
discovered years later. Miller v.
Anderson, 255 F.3d 455, 457 (7th Cir.
2001). (The judgment in Miller, but not
the opinion, was vacated by reason of
supervening mootness. 268 F.3d 485 (7th
Cir. 2001) (per curiam).) And, to sound a
recurrent note in this opinion, the issue
for us is not whether we think defense
counsel fell down on the job by failing
to find an expert who might have been
permitted to testify about Pecoraro’s
consumption of cocaine and beer on the
day of the confession; it is whether the
state courts were unreasonable in
concluding that defense counsel did not
in this or any other respect fall below
minimum professional standards to the
prejudice of their client. The answer to
that question is no.

Affirmed.
