                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-3868

M ATTHEW H ALE,
                                                Petitioner-Appellant,
                                  v.

U NITED S TATES OF A MERICA,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 08 C 94—James T. Moody, Judge.



    A RGUED F EBRUARY 11, 2013—D ECIDED M ARCH 5, 2013




   Before E ASTERBROOK, Chief Judge, and P OSNER and
T INDER, Circuit Judges.
  E ASTERBROOK, Chief Judge. Matthew Hale was the
head of a group now known as the Creativity Movement.
It used to call itself the World Church of the Creator
but lost a trademark battle with an organization that
had a senior claim to that name. See TE-TA-MA Truth
Foundation—Family of URI, Inc. v. World Church of the
Creator, 297 F.3d 662 (7th Cir. 2002). Hale then put out a
2                                              No. 11-3868

contract on the life of District Judge Lefkow, who
entered the injunction implementing that decision. He
was convicted of soliciting a crime of violence and ob-
structing justice. We affirmed. 448 F.3d 971 (7th Cir.
2006). A person sympathetic to the Creativity Movement
has been convicted of threatening the life of the foreman
of the jury that found Hale guilty. See United States v.
White, 698 F.3d 1005 (7th Cir. 2012).
  The Creativity Movement is racist. Its Five Fundamental
Beliefs are:
       Based on the Eternal Laws of Nature, History,
       Logic and Common Sense we Creators believe:
       1. WE BELIEVE that our Race is our Religion.
       2. WE BELIEVE that the White Race is Nature’s
       Finest.
       3. WE BELIEVE that Racial Loyalty is the
       greatest of all honors, and racial treason is the
       worst of all crimes.
       4. WE BELIEVE that what is good for the
       White Race is the highest virtue, and what is
       bad for the White Race is the ultimate sin.
       5. WE BELIEVE that the one and only, true
       and revolutionary White Racial Religion—
       Creativity—is the only salvation for the White
       Race. To the fulfillment of these Religious
       Beliefs we Creators forever pledge our Lives,
       our Sacred Honor and our Religious Zeal.
The Movement’s founder was Ben Klassen. According
to his book The White Man’s Bible, not only all non-whites
No. 11-3868                                              3

but also all Jews, Christians, and Muslims deserve con-
tempt. Jews receive special opprobrium as the sup-
posed masterminds of the white race’s decay; Christians
are censured for the religion’s role in the decline of the
Roman Empire (which the Movement treats as civiliza-
tion’s apex); all theistic religions are ridiculed for pro-
moting what the Movement calls the “spook in the sky”
fallacy (though the Romans worshipped gods). Medicine
is seen as a Jewish hoax aimed at weakening the
white race. The Movement’s web site declares: “all medi-
cines, drugs, narcotics and chemicals are poisonous and
toxic to the human body”. The legal profession is con-
demned as a bleeding-heart group that supports the
weak, while the Movement favors the strong. Farmers
are denounced for using fertilizer, which according to
the Movement injures consumers. The web site states
that food “must be uncooked, unprocessed, unpreserved
and not tampered with in any other way. This further
means it must be organically grown, without the use
of chemicals.”
   Although the Movement declares itself non-violent
(with this proviso: “we take deliberate care that the
misfits are culled”), the jury found that Hale planned
violence. He contends in this proceeding under 28
U.S.C. §2255 that the convictions should be set aside.
The district court held, however, that no constitutional
error occurred and denied Hale’s petition. 2010 U.S. Dist.
L EXIS 73604 (N.D. Ill. July 22, 2010), reconsideration
denied, 2011 U.S. Dist. L EXIS 124657 (N.D. Ill. Oct. 27,
2011). The district court’s opinions comprehensively
address Hale’s contentions. We add only a few thoughts
about his principal appellate arguments.
4                                              No. 11-3868

   Chief among them is a contention that the trial judge
violated the Constitution by excluding Hale from the
portion of the jury selection that dealt with pretrial pub-
licity—a potentially sensitive subject, because Hale
had praised Benjamin Smith, who in 1999 shot at least
11 members of minority groups. Hale’s support of Smith
had been noted in the press. It was essential to
learn whether members of the venire could distinguish
Smith’s crimes from the charges against Hale and also
put aside anything they may have heard or read about
Hale himself. Both the judge and Hale’s lawyer believed
that these inquiries would be more fruitful if made
outside of Hale’s presence.
  The judge called members of the venire into a small
conference room and questioned them one at a time,
thinking that this setting would promote candid an-
swers—and ensure that an answer disclosing something
prejudicial would not taint the rest of the venire. Hale
did not protest, but neither did he formally consent on
the record. We held in United States v. Rodriguez, 67
F.3d 1312, 1316 (7th Cir. 1995), that consent to ques-
tioning the venire outside the accused’s presence is not
one of the steps a lawyer can take on his client’s behalf.
Personal consent is essential. Hale maintains that this
means express consent, directly to the judge, and that
consent cannot be inferred from his conduct or any-
thing counsel says.
  During jury selection, the judge asked Hale’s lawyer
whether his client agreed to questioning outside his
presence. His lawyer said: “Mr. Hale had asked whether
No. 11-3868                                             5

I thought he should come here. I said I would report
back. I said I thought it okay if he was not here.” The
judge took this as conveying Hale’s consent. Hale now
contends that the judge was mistaken. We need not
decide, because Hale defaulted that contention and
cannot present it on collateral attack unless he shows
both cause and prejudice. See Engle v. Isaac, 456 U.S. 107
(1982); United States v. Frady, 456 U.S. 152 (1982).
  The argument has been doubly defaulted. First, Hale
did not protest even though he knew exactly what was
happening. He sat in the courtroom while the judge
and the lawyers were in the conference room, to which
members of the venire were called one at a time. Hale,
a law-school graduate, was not shy about telling the
judge that he disagreed with one or another step that
his lawyer had taken. Yet he said nothing about ques-
tioning jurors outside his presence. Had Hale raised
the subject, the judge could have either obtained
Hale’s consent on the record or permitted him to
observe all questioning. Either way, the issue that Hale
now identifies could have been fixed before it became
a problem. That’s why courts require contemporaneous
action.
  The second default was failure to raise the issue on
direct appeal. Because Hale knew what had occurred,
any claim of error could and should have been presented
on appeal. Hale had by then fired his lawyer and was
representing himself. He contends that the lack of a
transcript of what occurred in the conference room is
“cause” for not raising the issue immediately. But why
6                                                No. 11-3868

was there no transcript? Only because Hale failed to
order one. A person who elects to represent himself
cannot contend that his own decisions vitiate the judg-
ment. Faretta v. California, 422 U.S. 806, 834–35 n.46 (1975).
  Hale’s brief in this court tells us that he did not order
that transcript because he thought that the proceeding
had been sealed. If that’s what he thought—though the
district judge never said any such thing—he could have
asked that the events be unsealed, or that a transcript
be submitted to the court of appeals for review in camera.
He made neither request, so he must accept responsi-
bility. (Anyway, we don’t see why, on Hale’s view, a
transcript was necessary. Hale maintains that only a
formal consent given directly to the judge could have
authorized the proceedings in the conference room. Yet
Hale was never in that room, so the nonexistence of
the kind of consent that Hale insists is essential could
have been established using the transcript of the public
proceedings.) The lawyer representing Hale in these
collateral proceedings contends that “actual innocence”
excuses the default, but that argument is hard to take
seriously. The evidence recounted in our 2006 opinion
supports the convictions. The evidence was contested
at trial, to be sure, and the jury might have drawn in-
ferences in Hale’s favor, but it was not compelled to do so.
  Hale’s other principal contention is that, before
taking over his own defense, he received ineffective
assistance of counsel. He complains about almost every-
thing counsel did or did not do. The district court ana-
lyzed each of the current lawyer’s objections to his pred-
ecessor’s performance. We discuss only two of them.
No. 11-3868                                               7

  Trial counsel used all of the peremptory challenges
allotted to the defense. Hale’s current lawyer contends
that he used them unwisely by striking white members
of the venire rather than black members. Because black
jurors may have held Hale’s racist views against him,
current counsel contends that his trial counsel should
have used the peremptory challenges to remove as
many black members of the venire as possible, and coun-
sel’s failure to do this violated the sixth amendment.
  Yet the Supreme Court has held that lawyers are for-
bidden to exercise challenges on racial grounds. See
Batson v. Kentucky, 476 U.S. 79 (1986). This rule applies to
defense counsel as well as to prosecutors. See Georgia v.
McCollum, 505 U.S. 42 (1992). Although defense lawyers
are not state (or federal) actors, a judge’s decision to
honor a challenge is governmental and therefore must
not implement racial discrimination. Far from holding
that defense lawyers must defy Batson whenever evasion
would be in the interest of the defense, we have held
that racially motivated challenges constitute ineffective
assistance, even when the lawyer sincerely believes
that removing jurors of a particular race or sex would
help the defendant. See Winston v. Boatwright, 649 F.3d
618 (7th Cir. 2011). Hale’s trial lawyer should be
praised, not condemned, for resisting the temptation
to use race as the basis of challenges.
  On top of the impropriety of targeting blacks for chal-
lenge is the fact that singling them out would have
done Hale little good. Many white members of the venire
may have deemed Hale’s beliefs repugnant. And the
8                                               No. 11-3868

Creativity Movement holds so many groups in deri-
sion—blacks, Asians, Latinos (the Movement calls darker-
skinned persons “mud races”), Jews and all other ad-
herents to theistic religions, physicians (and presumably
nurses, pharmacists, and practitioners of related occupa-
tions), lawyers, farmers (other than organic farmers), food-
service workers who handle goods that have been
cooked or contain preservatives—that it would be impos-
sible for defense counsel to strike even a small fraction
of those in the jury pool whom Hale and his followers
had denounced. The judge was not about to say to the
assembled venire: “If you are not Nordic, or believe in
God, or work in jobs related to food, medicine, or law,
you are excused.” Hale was entitled to trial by a fair cross-
section of the whole community, not just that subset of
the community that the Creativity Movement favors.
Hale’s hatred of blacks did not entitle him to an all-
white jury.
  The best hope for the defense was to identify persons
who would not hold Hale’s beliefs against him. The
judge asked all members of the venire a series of
questions, including: “The evidence in this case may
show that the defendant has strong negative feelings
and views about racial and religious minorities. Would
that fact prevent you from impartially judging the facts
of this case?” and “Have any of you or has anyone close
to you ever been the victim of an offense motivated by
race, gender, sexuality or religion or treated differently
in your school or workplace based on any of those fac-
tors?” An affirmative answer to either of these, or a
number of related questions, led to further exploration.
No. 11-3868                                                9

Answers could be, and were, used as the basis of both
challenges for cause and peremptory challenges. Hale
does not contend that his lawyer performed inade-
quately in proposing these questions to all potential
jurors and following up on the answers. His current
argument is limited to a contention that counsel should
have exercised peremptory challenges on the basis of
race alone. That argument cannot succeed, given
McCollum and Winston.
  Let us turn to a second of current counsel’s complaints
about trial counsel’s performance. The prosecution’s
theory was that Hale told Tony Evola, the Movement’s
“head of security,” to kill Judge Lefkow. Hale’s
lawyer advanced two principal responses: first, that
Evola misunderstood him, and that far from urging
Evola to kill the judge he had told Evola to comply
with all state and federal laws; second, that if he did
tell Evola to kill the judge, he did so only at Evola’s
instigation and that he had been entrapped. These
defenses were presented to the jury, which rejected
them. Hale’s current lawyer insists that these defenses
were doomed and that trial counsel should have
conceded that Hale told Evola to kill someone—but that
the “someone” was not Judge Lefkow. According to
Hale’s current lawyer, Hale was using roundabout lan-
guage to tell Evola to kill the principal lawyer for
the plaintiff in the trademark suit.
   Hale’s trial lawyer made a choice among potential
defenses. Strickland v. Washington, 466 U.S. 668, 690 (1984),
tells us that a strategic choice, made after deliberation,
is “virtually unchallengeable”.
10                                          No. 11-3868

  Trial counsel did not have much room for maneuver,
and trying to show that Hale’s ambiguous statements
had been misunderstood was the best of the available
choices. The approach that current counsel pre-
fers—defending against a contract-murder charge by
conceding that a hit had been contracted but disputing
the identity of the target—was unlikely to appeal to
jurors. More than that: If Hale had been acquitted after
presenting such a defense, an indictment charging
him with planning the murder of the TE-TA-MA Truth
Foundation’s lawyer would have been the prosecutor’s
next logical step. And in that follow-up case the pros-
ecutor could have made hay out of the fact that Hale had
effectively confessed. So the defense would not have
seemed attractive; it could not have extricated Hale
from his legal problems. Counsel did not render ineffec-
tive assistance by settling on the theory of defense.
  The remaining arguments were carefully canvassed
by the district court and do not require discussion
here. The judgment is affirmed.




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