author: CUDAHY, Circuit Judge. FLAUM, Circuit Judge,

text:
    Lee O. GRIFFIN, Petitioner-Appellee, v. Richard D. McVICAR, Warden, Shawnee Correctional Center, Respondent-Appellant.
    No. 95-2330.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 12, 1996.
    Decided May 21, 1996.

      Arden J. Lang (argued), Charles M. Schie-del, Office of the State Appellate Defender, Springfield, IL, for Petitioner-Appellee.
    Arleen C. Anderson (argued), Office of the Attorney General, Chicago, IL, for Defendant-Appellant.
    Before POSNER, Chief Judge, and CUDAHY and FLAUM, Circuit Judges.
   CUDAHY, Circuit Judge.

Respondent, Warden McVicar, appeals the grant of petitioner Lee Griffin’s habeas corpus petition. The district court granted the writ of habeas corpus on grounds of ineffective assistance of counsel due to an actual conflict of interest inhering in the joint representation of Griffin and a co-defendant, Jimmy Lee Smith, by Marvin Goldenhersh in a 1981 murder trial. We affirm.

I. Introduction

Lee Griffin and Jimmy Lee Smith were convicted in June 1981 of the shooting murder of Charles Sims, Christi Smith and Ronald Walker and of the serious wounding of Charles Kellick. The shootings occurred on February 5, 1981, in the apartment which Smith and Walker shared. Three men were identified by witnesses as having been involved in the shootings — Lee Griffin, Jimmy Lee Smith and Will Hudson, who apparently was never apprehended. Griffin was initially represented by attorney Ralph Derango. He told Derango that, though he had walked in during the shooting episode, he had not been involved in the shootings but was merely an innocent bystander who had, in fact, tried to stop the shooting. On this basis, Derango approached police officer L.C. Moore and attempted to negotiate a deal for Griffin in exchange for his testimony against Smith. Derango’s overtures were apparently not well-received by the State and, perhaps for that reason, Griffin’s family retained Marvin Goldenhersh in Derango’s place approximately three weeks after Griffin’s arrest. The state court opinions in this case indicate that Mr. Goldenhersh was already representing Jimmy Smith at that time. People v. Griffin, 124 Ill.App.3d 169, 79 Ill.Dec. 509, 511, 463 N.E.2d 1063, 1065 (5 Dist.1984); People v. Griffin, 109 Ill.2d 293, 93 Ill.Dec. 774, 777, 487 N.E.2d 599, 602 (1985).

Mr. Goldenhersh moved to sever the trials of the two defendants on grounds that Jimmy Smith’s extensive criminal record might prejudice Griffin and that either defendant might have made admissions which could prove damaging to the other. In arguing the motion Mr. Goldenhersh specifically cited examples of admissions made by Griffin. The motion to sever was denied.

The potential for conflict of interest in the joint representation of Griffin and Jimmy Smith was raised at least twice prior to trial, although not by Mr. Goldenhersh. When questioned by the judge prior to trial, Mr. Goldenhersh asserted that there was no conflict in his joint representation. Then, during the hearing of motions just prior to trial, the State, apparently concerned about the potential for reversal on appeal, raised the issue of potential conflicts:

Mr. Hamilton [State’s Attorney]: The second question which I think we should deal with is whether these defenses, these defendants’ defenses will become, if they are not now, antagonistic to each other at some point in the trial. Now Mr. Goldenhersh has represented both of these defendants for some time. He has access to the Discovery provided by the State’s Attorney’s Office. He has talked with both of these defendants, and I don’t think he should be permitted to just juggle strategic weapons, if [sic] I’m not trying to suggest that there is anything improper into his continued representation of both defendants, but if he now knows that such a conflict may develop, perhaps there is a question of whether he can continue to represent both the parties....

Trial Tr. at 12.

Neither Mr. Goldenhersh nor the trial judge responded to this point and the case proceeded to trial without further inquiry into the matter.

II. The Trial

A. The Evidence

The eyewitness testimony, taken as a whole, established that three men, other than the victims, were in the apartment during the period in which the shootings occurred. Christi Smith was already in the apartment with one of these men when Sims and Kel-lick, who had come by to visit Christi and were outside the apartment, heard her crying. When she did not answer the door, they went in to investigate. Velma Robinson, who had come with Sims and Kellick, remained outside in Kelliek’s truck while they went in. Velma saw two more men get out of a red and white Cadillac and enter the apartment after Sims and Kellick had gone in.

When Sims and Kellick entered the apartment looking for her, Christi Smith was in the bathroom with one of the other three men. The two men whom Robinson had seen enter came up behind Sims and Kellick. At this point, Sims was shot by the man in the bathroom, according to Kellick. Kellick turned to run and he was shot twice — once in the back of the head and once in the face after he fell. At some point after the three men left, Kellick managed to crawl out of the apartment and hide in a basement or crawl space under the stairs.

Next, Robinson saw the same two men she had observed entering leave the apartment and drive away. A few minutes later Walker returned home and went into the building. Shortly after that, the two men in the Cadillac returned, got out of the car and went into the building as well. Robinson heard another shot, at which time she drove away in search of police. Though Walker was shot five times, he managed to make his way to a nearby convenience store where he spoke to several police officers. He died shortly thereafter, having been taken by ambulance to a hospital.

The key issues at trial were the identification of the three men and of the role each had played. Smith was identified as a shooter by the testimony of Kellick and of three witnesses who testified as to the dying declarations of Walker. Kellick testified that Jimmy Smith shot him in the face and kicked him after he was felled by a shot from behind as he tried to run away. Three witnesses testified to having heard Walker’s dying declarations in the convenience store. Police officer Settles, state trooper Rice and store manager David Winchester each testified that he heard Walker say that Jimmy Smith shot his girlfriend (Christi Smith).

While this testimony consistently implicated Smith, there were significant contradictions in the testimony implicating Griffin in the shootings. Kellick testified that Griffin was the first man in the apartment and was in the bathroom with Christi Smith when Kellick arrived. Thus, Kellick testified, it was Griffin who shot Sims. Kellick did not identify Griffin immediately, however. He was hospitalized after the shootings due to his serious injuries. A police officer testified that at the hospital in the hours just after the shootings Kellick told him that he didn’t know who had done the shooting. Tr. at 337. Kellick testified that he did not remember talking to police during the first few days after the incident. Kellick later identified Griffin from a videotaped lineup several days after the shooting. He testified that he recognized Griffin from having seen him on two prior occasions.

Robinson, in direct contradiction of Kel-liek’s testimony, identified Griffin as one of the two men who emerged from the red and white Cadillac (later shown to be Griffin’s) and entered the apartment after Sims and Kellick.

Police officer Settles testified that Walker said that “Lee” shot him. State trooper Darrell Rice, however, testified that Walker said that Lee’s friend shot him. Winchester had not heard Walker say who had shot him.

In sum, while Kellick’s unrefuted testimony identified Jimmy Smith as his assailant and all three witnesses to Walker’s dying declaration reported his identifying Jimmy Smith as Christi Smith’s assailant, only two witnesses, Kellick and Settles, gave testimony suggesting that Griffin had shot anyone. The testimony of each of these latter two witnesses was directly contradicted by other testimony. Thus, the identification evidence against Jimmy Smith was much stronger than the evidence against Griffin.

B. The Theory of Defense

At trial, Griffin and Smith were both represented by Mr. Goldenhersh. The two defendants presented a joint alibi defense, consisting of Griffin’s testimony that he and Smith had been at a local tavern playing cards at the time of the murders. The alibi was supported to some extent by the testimony of a witness, Priscilla Smith, that she had loaned Griffin five dollars and danced with him at the tavern. Priscilla Smith placed the defendants at the tavern between 4:30 and 5:00 p.m. and again at sometime after 6 p.m. and said that she did not see them there after about 6:30 p.m. The shootings apparently took place sometime between 5 p.m. and 6:30 p.m., when Walker showed up at the convenience store.

The alibi story was presented through Griffin’s and Priscilla Smith’s testimony. However, Mr. Goldenhersh’s major trial strategy was apparently to discredit the eyewitness identifications of Griffin and Jimmy Smith. Indeed, Mr. Goldenhersh did not even mention the alibi in either his opening or closing argument. Mr. Goldenhersh’s efforts to discredit the eyewitness testimony were organized around a theory that the shootings were linked to the drug-related killing of Griffin’s brother, which had occurred just a few weeks earlier. In his opening statement, for example, Mr. Golden-hersh said that the evidence would show that Sims and Kellick “after killing the brother of Griffin, ... then have set up and plotted, plainly set up and plotted to make his brother, Lee Griffin, and Jimmy Smith the scapegoats of this dope-related killing.” Tr. at 159. To this end, Mr. Goldenhersh repeatedly tried to elicit detailed testimony about the drug involvement of the victims and to connect them to Griffin’s dead brother. The State resisted these attempts, stating in a portion of the proceedings held away from the presence of the jury that “[a]t best, all that Mr. Goldenhersh’s offer of proof does is provide speculation as to motive, and provide a motive for particularly defendant Griffin to have committed the offenses named in the indictment.” Tr. at 454. The trial court sustained the State’s objections to questioning along these lines, finding such questions irrelevant to the identification issues at hand. Mr. Goldenhersh, however, continued to pursue the scapegoat theory in his closing arguments, pointing out the time which passed after the shootings before either Kellick or Robinson identified the defendants and arguing that Kellick and Robinson were participating in a “cover-up.” Mr. Goldenhersh discussed at length the fact that Sims had one thousand dollars with him when he went to Christi Smith’s house and insinuated that the police investigation was not thorough and that “there couldn’t be all this dope and one thing and another without some police involvement.” Tr. at 499.

III. History of the Ineffective Assistance Claim

A. State Court History

Griffin has pursued the ineffective assistance claim which is the subject of this appeal through numerous state court proceedings. Griffin first presented the claim in his direct appeal of his conviction. In that appeal, Griffin relied on Mr. Goldenhersh’s failure to present a non-participating bystander defense as grounds for the ineffective assistance claim. Griffin Direct App. Br. He noted that Mr. Goldenhersh was aware that Griffin had made statements to the police indicating that he had been present at the scene and knew who had done the shooting, but that Mr. Goldenhersh, in spite of this, still did not pursue an innocent bystander defense.

In addition, Griffin argued that the joint representation left Mr. Goldenhersh completely unable, without compromising his representation of Smith, to impress upon the jury that the eyewitness testimony was much less conclusive with respect to Griffin than it was with respect to Smith. Instead, Mr. Goldenhersh was forced to attempt to discredit completely the testimony of these witnesses, including testimony, such as that of Trooper Rice. Rice reported Walker as saying that it was “Lee’s friend” who shot him. Of the same ilk was the testimony of Robinson that Griffin was not in the apartment when Kellick and Sims entered. This evidence would have tended to exonerate Griffin at Smith’s expense.

Griffin pointed out on direct appeal that Mr. Goldenhersh not only failed to pursue lines of inquiry which would have aided him at Smith’s expense, but actively pursued a defense strategy which was highly prejudicial to Griffin alone. By presenting the scapegoat theory, Griffin argued, Mr. Goldenhersh “succeed[ed] in [his] opening statement in giving the jury a motive for Griffin to kill the victims that the State would not have been able to elicit ... [and in] taking a defendant with no record and involving him by implication in dope traffic and a ‘dope-involved killing’.” Griffin Direct Appeal Br. at 13.

Finally, Griffin pointed out various other shortcomings in Mr. Goldenhersh’s representation, such as his attack on the morals of the victims on grounds of “drugs and inter-racial sex”; his suggestion that Kellick was involved in a cover-up when after being shot in the head he took three days to identify the perpetrators; Mr. Goldenhersh’s complete failure to present any evidence in support of his scapegoat theory; and his failure to object to various bits of damaging argument such as the State’s Attorney’s assertion that Walker identified Lee Griffin as his killer.

The Illinois Appellate Court, on May 14, 1984, ruled that the proposed alternative bystander defense was “too speculative to constitute the actual conflict required ...” for ineffective assistance. The court noted that there was “nothing in the record to indicate that defendant Griffin presented his attorney with any facts other than those supportive of the alibi defense.” Finally, the court stated that “[t]he failure of counsel to adopt a defense inconsistent with his client’s testimony cannot reasonably be characterized as incompetent.” Griffin, 79 Ill.Dec. at 508, 463 N.E.2d at 1062.

While waiting for his appeal to be resolved, Griffin filed a state post-conviction petition. That petition was heard on October 12, 1982. In the hearing on that petition, Griffin testified that he had told both Derango and Mr. Goldenhersh that he had been present at the time of the attacks but that he had not shot anyone nor condoned the shooting. He stated that Mr. Goldenhersh had told him that if he said he was present he would be found guilty on an accountability theory. Griffin testified that he had lied at his trial when he stated that he and Smith were playing cards at the tavern while the shootings took place. He explained that he had lied because he believed that if he put himself at the scene of the crime he would be held accountable. Griffin also testified that Mr. Goldenhersh never talked to him about having his case tried separately from Smith’s and that he and Smith and Mr. Goldenhersh had agreed that, because of Smith’s prior record, Griffin would have to be the one to take the stand and testify to the alibi.

In the post-conviction proceeding, Griffin’s attorney argued that the joint representation presented a conflict, for some of the same reasons argued on direct appeal, and that it constituted ineffective assistance of counsel. The trial judge denied the post-conviction petition, saying:

The Court is very familiar with the case, and of course what the defendant is asking me to do is disregard his prior perjured testimony and to say now that he has seen the light, and he’s in to tell the truth. I don’t know whether he’s telling the truth or not. I don’t know whether he told his attorney Mr. Goldenhersh that or not. He was afforded a defense according to the defendant’s own testimony on the stand under oath. There was no conflict in the defense between the defendant and his co-defendant. Motion will be denied.

Resp. App. Exh. C at 21-22.

Griffin’s appeal of the denial of his post-conviction petition was decided by the Illinois Appellate Court on the same day as was his direct appeal. That court reversed the trial court and granted Griffin’s post-conviction petition on grounds of ineffective assistance of counsel. People v. Griffin, 124 Ill.App.3d 169, 79 Ill.Dec. 509, 463 N.E.2d 1063 (5 Dist.1984). The court relied on the principle that “in some instances, however, the choice of treating co-defendants differently is more than a mere possibility; it is forced on counsel by the difference in evidence offered against co-defendants.” Id. 79 Ill.Dec. at 517, 463 N.E.2d at 1071. The court pointed out that:

In order to take full advantage of the inconsistencies in the identification of Griffin, Goldenhersh would have had to distinguish between the uncontradieted assertions that Smith killed the girl and shot Kelliek and the uncertainties about the identity of the man in the bathroom who shot Sims and the man or men who shot Walker. As it was, he only pointed to the inconsistencies and ambiguities as matters going to the credibility of the State’s witnesses. Counsel could not give Griffin the best possible defense under the circumstances because to do so would have been disloyal to Smith, his original client. Because of this conflict of loyalties, he remained silent when independent counsel would have spoken out on Griffin’s behalf.

Id. at 518, 463 N.E.2d at 1072. For these reasons the Appellate Court granted Griffin’s petition.

On the State’s appeal to the Illinois Supreme Court, however, the decision of the Appellate Court was reversed. People v. Griffin, 109 Ill.2d 293, 93 Ill.Dec. 774, 487 N.E.2d 599 (1985). The Illinois Supreme Court emphasized that the Appellate Court was not in a position to judge the credibility of Griffin’s testimony regarding what he had told Mr. Goldenhersh about whether he was present at the scene of the shooting. The Illinois Supreme Court also was unconvinced that Mr. Goldenhersh’s failure to closely explore the discrepancies in the identification testimony of the various state witnesses was ineffective assistance. The Court said that “[biased on these discrepancies, trial counsel did attack the credibility of the witnesses. His attack, however, was probably somewhat deflected by the fact that the defendant was testifying to the joint alibi that he and Smith were at the tavern.... It would seem incongruous to permit a defendant to perjure himself and then benefit from that perjury by successfully contending that his attorney, because of the perjury, did not most effectively explore grounds for his advantage.” Id. 93 Ill.Dec. at 779, 487 N.E.2d at 604.

B. Federal Habeas Corpus Proceedings

Griffin’s federal petition for writ of habeas corpus continued to argue that he received ineffective assistance of counsel from Mr. Goldenhersh due to the joint representation. Mr. Goldenhersh was deposed in connection with the habeas corpus proceedings. The magistrate judge found that “[i]n his deposition, Marvin Goldenhersh stated that only facts relating to the alibi defense were given to him while preparing for trial.” He also found that “Mr. Goldenhersh further stated that he never discussed the theory of accountability with the petitioner and did not tell him that he would be found guilty if he admitted being at the scene.” On this basis, the district court denied the habeas corpus petition. Resp. App. Exh. A at 11.

On appeal, however, this court noted apparent inconsistencies between the district court’s factual findings and the record. In particular, we pointed out that Mr. Golden-hersh testified in his deposition that he did discuss accountability with Griffin and that he stated that “there was the possibility that [Griffin] could be found guilty on the basis of accountability.” Griffin v. Camp, 40 F.3d 170, 174 (7th Cir.1994). We also noted that “[although Goldenhersh unequivocally stated that Griffin only gave him one version of the events — the version supporting the alibi defense — Goldenhersh’s other statements indicate that he had access to a significant amount of evidence which pointed to another potential defense.” Id.

Finally, we pointed out that the district court neglected to explain “how the law, when applied to these facts, led to the conclusion that Griffin had effective assistance of counsel.” Id. We thus remanded the case to the district court for clarification.

On remand, the district court reviewed the record and found that an actual conflict of interest existed. The district court relied on two grounds for this conclusion. First, the court acknowledged that Mr. Goldenhersh testified in his deposition that Griffin never told him facts which were at odds with the alibi defense. However, the court noted that the record shows that Mr. Goldenhersh was aware before trial of facts suggesting the availability of a viable innocent bystander defense. The district court also stated that “only Jimmy Smith would have benefited from an alibi defense,” noting that “Jimmy Smith, as a convicted felon was unable to testify” so that “[i]n a joint trial, only [Griffin] was able to take the stand in their behalf.” Finally, the court pointed out that the alibi defense provided the only way in which Mr. Goldenhersh could have represented both clients. Dist.Ct. Order at 12-14.

Based on these considerations, the district court found that a conflict of interest existed between Griffin and Smith such that joint representation of the two was precluded. The court also recognized that the record clearly showed that Griffin had never waived any conflict of interest between Smith and him with respect to their respective defenses. The district court thus granted Griffin’s petition for a writ of habeas corpus.

IV. Analysis

In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court set out the standard for a finding of ineffective assistance of counsel based on multiple representation. There, the Court held that “[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id. at 348, 100 S.Ct. at 1718. A mere possibility of a conflict is not sufficient to violate the Sixth Amendment. However, once a defendant has shown that an actual conflict exists, no showing of prejudice is required. Id. at 348-50, 100 S.Ct. at 1718-19. In general, trial courts are not required to inquire into the possibility of a conflict and “may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.” Id. at 347, 100 S.Ct. at 1717.

The determination whether a particular case presents an actual, as opposed to a potential, conflict of interest is not always straightforward. The mere presentation of a “common defense” does not conclusively demonstrate that any conflict of interest was merely potential. “A conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing.” United States ex rel. Gray v. Director, Dept. of Corrections, 721 F.2d 586, 596-97 (7th Cir.1983), quoting Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir.1975). Conversely, the mere fact that co-defendants abandon a pre-trial stance in which they accuse each other of a crime in favor of a common defense does not lead ineluctably to the conclusion that their attorney faced an actual conflict of interest. United States v. Cirrincione, 780 F.2d 620, 629-31 (7th Cir.1985). When a defendant makes a purely tactical decision to abandon a defense which is adverse to that of a co-defendant, he or she cannot then claim to have been a victim of ineffective assistance of counsel. United States ex rel. Cole v. Lane, 752 F.2d 1210, 1220 (7th Cir.1985).

Thus, in circumstances such as the present ease, where a defendant has pursued a common defense rather than an alternative defense adverse to the interests of a eodefendant, a showing of ineffective assistance of counsel requires that the complaining defendant show “specific instances where [his] attorney could have, and would have, done something different if that attorney had represented only one defendant.” Cirrincione, 780 F.2d at 630-31. However, these specific instances need not be taken solely from the conduct of the trial. Instances in which choices of strategy would have been made differently had there been separate representation may also demonstrate ineffective assistance of counsel. “The test for conflict between defendants is not whether the defenses actually chosen by them are consistent but whether in making the choice of defenses the interests of the defendants were in conflict.” Gray, 721 F.2d at 597.

Applying these standards to the present case, we find that the district court was correct in ruling that an actual conflict of interest existed in the joint representation of Griffin and Smith.

Mr. Goldenhersh was possessed of information which would have suggested to an unconflicted counsel the availability of a defense focused on discrediting the identification of Griffin and shifting the blame onto Jimmy Smith. Whether or not Mr. Golden-hersh was actually told by Griffin that he had been present at the scene of the shooting, Mr. Goldenhersh did know that Griffin had stated earlier to Derango and to Officer Moore that he had been there and could identify Smith as a shooter. Mr. Golden-hersh had also received discovery from the prosecution which included police reports indicating that Kelliek had identified Griffin as the man who shot Sims and reports describing the conflicting versions of Walker’s dying declaration. Prior to trial, Mr. Goldenhersh received a memorandum from the prosecution purporting to describe the revised testimony which Robinson intended to give. Trial Tr. at 107. In her testimony, Robinson identified Griffin as one of the two men who arrived at the scene in the Cadillac. Trial Tr. at 226. Given all of this available information, we cannot accept the conclusion that Mr. Goldenhersh was unaware of the difficulties with the alibi defense and the possibility of an innocent bystander defense.

The question, then, is what Mr. Golden-hersh was obligated to do with this information in order to provide effective assistance of counsel. Of course, the mere fact that a defendant chooses one of two available defenses cannot establish ineffective assistance of counsel, even if the defendant makes a bad choice. However, counsel may be ineffective if the joint representation precludes an obvious and viable alternative defense when the common defense is so completely untenable. Failure to consider the possible defenses with a mind to the best interests of a client is particularly likely when the alternative to a common defense is helpful to one client but is highly detrimental to the other (as was the case here).

Here, in spite of all the information suggesting the likely untruth of Griffin’s alibi and the near certainty that it would not be believed by a jury, there is no suggestion in the record that Mr. Goldenhersh pressed Griffin as to the validity of the alibi, discussed with him the possibility of a bystander defense or pointed out the comparative weakness of the State’s case against him as opposed to the case against Smith. Even if Griffin did represent that the alibi story was true, an effective attorney would have discussed with Griffin the disadvantages of linking his fortunes to those of Smith, given the strength of the eyewitness identifications of Smith and Smith’s extensive criminal history. An attorney free to consider Griffin’s singular interests would, particularly in light of Griffin’s waffling on his story, have pointed out the possibility of resting a defense on the weakness and contradictions in the testimony implicating him in the shootings. This approach would have compared favorably with bringing in an alibi which left Griffin with the task of refuting the evidence against Smith as well.

This ease is thus distinguishable from Cir-rincione and Cole. In Cirrincione, the defendant claimed that he refrained from testifying at his joint trial with his father because he feared that his testimony would hurt his father. The court, however, found that it was “not clear how [his] testimony ... could have hurt [his father]” and that it was “highly unlikely that Tom refused to take the stand” to protect his father. Similarly, the court found little merit in the defendant’s contention that he was damaged by his inability to cross-examine his father when there was “nothing in the record inculpatory of [the defendant] that was not already corroborated by other witnesses’ testimony.” Cirrincione, 780 F.2d at 631.

In Cole, the defendants never moved to sever the trial despite statements that each had given to police admitting that both were present at the scene of an armed robbery but accusing the other of having taken the money and carried the gun. At trial the defendants abandoned their mutual accusations and presented a common defense in which they attacked the credibility of prosecution witnesses and explained why they were in the area where the armed robbery occurred. Cole, 752 F.2d at 1220. The facts of Cole do not suggest that the decision to pursue a joint defense redounded to the detriment of one co-defendant and to the advantage of the other. The two co-defendants were in apparently equivalent positions ' and seemingly made a joint decision to give up accusing each other and gain the advantages of a consistent defense. There is thus nothing about Cole which suggests that separate counsel would have done anything differently.

The current case, however, is not one, like Cirrincione, in which co-defendants gambled on a common,defense which was as likely to prove advantageous to one as to the other. Nor is it a case, like Cole, in which the avenues of inquiry closed off by the joint representation were of little consequence. In contrast to these eases, the record here suggests that both before and during the trial, Mr. Goldenhersh’s choices were unacceptably constrained by the joint representation of Griffin and Smith and that these constraints worked to the. unilateral disadvantage of Griffin.

The decision to present the alibi defense was, as the district court noted, clearly favorable for Smith’s defense but likely detrimental for Griffin’s. Without Griffin’s alibi testimony, Smith did not have a leg to stand on in presenting a defense. He was unequivocally identified as having shot two of the victims and he had an extensive criminal record which effectively precluded him from testifying. Griffin, on the other hand, had the option of pursuing a defense based on the inconsistencies in the testimony identifying him as a shooter. These inconsistencies included: (i) the conflict between Kellick’s testimony that Griffin was already in the apartment when he and Sims arrived and Robinson’s testimony that Griffin was one of the two men who followed Kellick and Sims in; (ii) the conflict between Officer Settles’ report that Walker’s dying declaration was that “Lee” shot him and Trooper Rice’s account that Walker said that “Lee’s friend” shot him; and (iii) the implied conflict between Kellick’s identification of Griffin as the one man already in the apartment and Walker’s statement, attested to by all three witnesses, that Jimmy Smith killed his girlfriend, Christi Smith. (This last statement presents an implied conflict because Walker also said that Christi Smith was dead when he arrived at the apartment. Thus Walker’s identification of Jimmy Smith as her killer was likely based on Jimmy’s having been present when Walker arrived. Robinson, however, testified that Griffin and another man had left the apartment by the time Walker, arrived and that they went back in only after Walker.)

In the. face of the uncontradieted evidence placing Smith at the scene during the shootings, Griffin’s testifying to an alibi which involved Smith could do nothing but damage his own case. While a defense based on simply raising doubts about the credibility of the testimony implicating Griffin in the shootings might well have been unsuccessful, the joint alibi defense was nearly as weak as no defense at all. There was only the slimmest chance, if any, that a jury would believe the alibi in the face of the consistent eyewitness testimony placing Griffin and Smith at the scene of the murders. On the other hand, an attorney representing only Griffin could have impeached the identifications of Griffin as a shooter by exploiting obvious inconsistencies in testimony. The joint representation prevented Mr. Golden-hersh from exploiting the disparity in strength of the respective prosecution cases against Griffin and Smith.

It is true that the innocent bystander defense was not promising. It is often the unenviable job of defense counsel to choose among unpromising defenses. However, when an actual conflict of interest due to joint representation constrains an attorney to choose the hopeless in favor of the unpromising, the defendant has received ineffective assistance of counsel.

The disadvantage to Griffin which the joint alibi defense unavoidably imposed was exacerbated by Mr. Goldenhersh’s conduct of the trial. The extent to which the scapegoat argument relating to Griffin’s brother’s killing could have been helpful even to Smith is highly questionable. In any event, it is most unlikely that any attorney representing only Griffin would have pursued such an unpromising tack. An unconflicted attorney would not have had to resort to the suggestion that the victims implicated Griffin in order to frame him because they were responsible for his brother’s death a few weeks earlier. Such a flimsy theory may have been the only thing available to Smith given the consistent testimony identifying him as a shooter, but no effective attorney representing Griffin alone would have resorted to it.

Finally, Mr. Goldenhersh was apparently so confused by his joint representation of the two defendants that he argued in closing that Walker, in his dying declaration, “told them ... that Lee Griffin shot my girl friend.” Trial Tr. at 488. In fact, the three witnesses to Walker’s dying declaration unanimously reported that Walker said that it was Smith who shot his girlfriend, even though they differed as to what Walker said about his own attacker. Mr. Goldenhersh’s statement was not a mere slip of the tongue. Mr. Goldenhersh argued that Walker’s identification was unreliable by suggesting that he could not have known who shot his girlfriend since she was already dead when he arrived. In pursuing this effort, Mr. Goldenhersh suggested that “it could be argued that because Lee Griffin allegedly then shot him, that he jumped to the conclusion that he also shot his girl friend.” Id. Thus, Mr. Goldenhersh not only told the jury incorrectly that Griffin was accused of shooting Christi Smith. But he also accepted as a premise for his argument that Walker had said that Griffin had shot him. In fact, of course, the witnesses to the declaration disagreed as to whether Walker implicated Griffin or “Lee’s friend.” Such a prejudicial confusion of the evidence would not have occurred if Griffin had had his own representation.

In conclusion, the record in this case undoubtedly provides “specific instances where [Griffin’s attorney] could have, and would have, done something different if that attorney had represented only one defendant.” Cirrincione, 780 F.2d at 630-31. The record therefore supports the district court’s conclusion that an actual conflict of interest infected the joint representation of Griffin and Jimmy Smith. Lastly, the district court found, and we agree, that the record discloses no waiver of this conflict on Griffin’s part. In fact, Mr. Goldenhersh never discussed the potential for conflict of interest with Griffin. Such an unwaived actual conflict of interest is a violation of the Sixth Amendment and requires the granting of Griffin’s Petition for Writ of Habeas Corpus.

Therefore, we affirm the judgment of the district court. The writ shall issue, thereby releasing Griffin from custody, unless the State of Illinois elects to retry him within one hundred twenty (120) days from the issuance of this Court’s final mandate.

Affirmed.

FLAUM, Circuit Judge,

dissenting.

The Supreme Court has held that in order to establish ineffective assistance of counsel based on multiple representation, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). It is not enough for the defendant to prove the existence of a possible or potential conflict of interest. Id. This court has held that where a defendant pursues a common defense rather than one adverse to his code-fendant, the defendant, to establish more than merely a potential conflict, “must show specific instances where [his] attorney could have, and would have, done something different if that attorney had represented only [the] defendant.” United States v. Cirrincione, 780 F.2d 620, 630-31 (7th Cir.1985) (emphasis added). The majority applies these standards and decides that attorney Marvin Goldenhersh’s representation of Lee Griffin violated the Sixth Amendment. I conclude, however, that Griffin has failed to demonstrate anything more than a possible conflict and therefore respectfully dissent from the majority’s decision.

The relevant issue in this case boils down to whether an attorney representing Griffin alone would have presented the innocent bystander defense instead of the alibi defense at trial. Much of the majority’s analysis, however, focuses not on the choice of defenses but rather on the pre-trial discussions that Goldenhersh had with Griffin regarding his defense. Relying completely on the absence of evidence in the record, the majority concludes that no consideration or discussion of possible defenses occurred. Yet it is the defendant’s burden to prove that his attorney had an actual conflict of interest in advising him. See, e.g., Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718; Cirrincione, 780 F.2d at 630-31 n. 4. Accordingly, “[t]he mere possibility of divided loyalties is insufficient to sustain the defendant’s burden.” Id. The district court did not find that Goldenhersh failed to examine with Griffin the weaknesses of the alibi defense and the possibility of presenting an innocent bystander defense. The record on this point is indeed inconclusive. I fear the majority treads on dangerous ground by inferring the absence of specific discussions from an indeterminate record developed over ten years after the fact.

The record does make clear that Griffin told his previous attorney, Ralph Derango, that he was an innocent bystander, that Der-ango attempted to negotiate a agreement with the police where Griffin would testify against co-defendant Jimmy Smith, and that the police weren’t buying Griffin’s story. Confronted with this situation, Griffin’s family decided to retain Goldenhersh and discharge Derañgo. And, although the exact nature of the conversations that took place between Griffin and Goldenhersh regarding Griffin’s defense is unclear, we do know that, at trial, Goldenhersh presented the alibi defense, and Griffin testified under oath that he and Smith were at a tavern playing cards when the murders occurred. Thus, the facts of this case are analogous to those in United States ex tel. Cole v. Lane, 752 F.2d 1210 (7th Cir.1985), where the habeas petitioner abandoned a defense of accusing his eo-de-fendant and testified under oath that neither he nor his co-defendant was involved in the crime. In Cole, we stated:

[W]hen Cole was presented with an opportunity to accuse Cade of committing the armed robbery, Cole denied under oath telling the arresting officers that Cade had committed the crime. It is logical to assume from the record in this case, rather than demonstrating an actual conflict of interest, that in all probability the defendants agreed prior to trial upon a trial strategy of neither defendant testifying against the other. Because there is no evidence in the record that Cole ever pursued the defense of accusing Cade of committing the armed robbery and, to the contrary, disclaimed the defense under oath, we hold that Cole abandoned the defense of accusing Cade. Decisions to pursue or abandon defenses are tactical choices of trial strategy.... Since the decision to abandon the defense of accusing Cade was an obvious strategical and tactical decision, it may not be reviewed by this court on appeal.

752 F.2d at 1220. Where a defendant testifies under oath to the truth of a particular defense, we therefore presume that the defendant made a tactical decision to present the defense consistent with his testimony. Such a tactical decision cannot provide the foundation for a claim of actual conflict of interest. Id. Of course, the defendant can overcome this presumption of trial strategy by showing that an unconflicted counsel would have pursued a different course of action. See, e.g., Cirrincione, 780 F.2d at 631.

The evidence against Griffin left Golden-hersh with two options: he could have presented the alibi defense or the innocent bystander defense. The majority attempts to distinguish Cole by concluding that an uncon-flicted counsel representing Griffin would have presented a defense based on inconsistencies in the testimony identifying him as a shooter. Yet the majority fails to concretely evaluate the relative strengths of the two potential defenses that were available to Griffin. Only by comparing the strengths and weaknesses of the two defenses can we decide whether an unconflicted counsel would have presented the innocent bystander defense rather than the alibi defense. Certainly, the evidence supporting the alibi defense was weak at best. The alibi was only partially corroborated by Priscilla Smith, and extensive evidence placed both Griffin and Jimmy Smith at the scene of the crime. Furthermore, the defense had the disadvantage of connecting Griffin’s story to that of Jimmy Smith, who was consistently identified by witnesses as a shooter. This is not to say that the alibi defense lacked any advantages. We have noted that “Cjjoint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack.” Cole, 752 F.2d at 1220 (quoting Holloway v. Arkansas, 435 U.S. 475, 482-83, 98 S.Ct. 1173, 1177-78, 55 L.Ed.2d 426 (1978)). Although it may have been unlikely that Jimmy Smith would have testified against Griffin if they had been afforded separate trials, by presenting the alibi defense Goldenhersh eliminated this possibility entirely.

The majority posits that Griffin could have pursued a defense based on the inconsistencies identifying him as a shooter. I agree with the majority’s assessment that the evidence at trial did not conclusively demonstrate that Griffin was a shooter. Yet the prosecution’s ease against Griffin was broader, implicating him as at least an accomplice to the murders. Both Robinson and Kellick clearly placed Griffin at the scene of the crime in a group of three men who committed the murders. To respond to this evidence, Goldenhersh could have presented the innocent bystander defense — Griffin could have taken the stand and testified that, although he was at the scene of the crime, he had nothing to do with the murders. Accomplice liability in Illinois is broad, however, and this defense would not have provided much hope for Griffin. Under Illinois law, a person is legally accountable for the conduct of another when “[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” 720 ILCS 5/5-2. Although a person’s mere presence at the scene of a crime is insufficient to impose criminal liability, active participation in a crime is not necessary for liability to be based on a theory of accountability. People v. Davis, 254 Ill.App.3d 651, 193 Ill.Dec. 636, 651, 626 N.E.2d 1187, 1202 (1993). The Illinois Supreme Court has stated:

If the proof shows that a person was present at the commission of the crime without disapproving or opposing it, it is competent for the trier of fact to consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the crime. Stated differently, circumstances may show there is a common design to do an unlawful act to which all assent, and whatever is done in furtherance of the design is the act of all, making each person guilty of the crime.

People v. Morgan, 67 Ill.2d 1, 7 Ill.Dec. 69, 73, 364 N.E.2d 56, 60 (1977) (quoting People v. Washington, 26 Ill.2d 207, 186 N.E.2d 259, 261 (1962)). Other factors that Illinois courts have used to determine whether a defendant can be liable on an accountability theory include his association with the co-defendants (e.g., common arrival at the scene), flight from the scene, continued association with the perpetrators after the criminal act, and failure to report the incident. See Morgan, 7 Ill.Dec. at 73, 364 N.E.2d at 60; Davis, 193 Ill.Dec. at 651, 626 N.E.2d at 1202; People v. Jones, 12 Ill.App.3d 643, 299 N.E.2d 77 (1973) (holding defendant accountable for murder committed by co-defendant based on evidence that they arrived at scene together and fled together after murder).

In light of the law of accountability and the evidence against Griffin, the innocent bystander defense was far from promising. Robinson testified that Griffin and another man entered the apartment during the first set of murders, then drove away in Griffin’s car, and returned to the apartment together immediately before Walker was murdered. These facts, combined with no evidence (apart from Griffin’s presumed testimony) showing that Griffin attempted to disassociate himself from the crime or call the police, would have been severely damaging to a claim by Griffin that he was merely an innocent bystander. See, e.g., Morgan, 7 Ill.Dec. at 73, 364 N.E.2d at 60; Davis, 193 Ill.Dec. at 641, 626 N.E.2d at 1202 Jones, 12 Ill.App.3d 643, 299 N.E.2d 77. Moreover, the testimony identifying Griffin as one of the shooters would only have increased the likelihood of the jury finding him guilty of murder. See, e.g., Davis, 193 Ill.Dec. at 641, 626 N.E.2d at 1202 (finding some evidence that defendant may have actually shot at victim supported guilty verdict based on accountability theory).

Comparing the likelihood of success of the two defenses that were available to Golden-hersh, I cannot conclude that an unconflieted counsel would have presented-the innocent bystander defense. Given the evidence in this ease, Griffin was fighting an uphill, and ultimately losing, battle. Although the probability of a successful alibi defense appears close to nil, the likelihood of a successful innocent bystander defense was not significantly greater. Griffin has therefore failed to demonstrate specific instances where an unconflieted counsel representing him would have acted differently. Griffin cannot sustain his burden of demonstrating an actual conflict by showing that it was possible that Goldenhersh’s-choice of the alibi defense was a product of divided loyalties. See, e.g., Cirrincione, 780 F.2d at 630-31 n. 4. For that reason, I have determined that Griffin’s Petition for Writ of Habeas Corpus should not be granted.

      . Mr. Goldenhersh disputes this fact in his deposition, taken in connection with this habeas petition. There he claims that he undertook representation of Griffin prior to taking on the representation of Jimmy Smith. Since no one suggests that Mr. Goldenhersh intentionally gave preference to the representation of Smith over the representation of Griffin, the order in which he took on their cases is not of any material significance to the resolution of this appeal.

      . Mr. Goldenhersh recalls in his deposition that the primary grounds for the motion to sever was the potential prejudice to Griffin from Smith’s criminal record and that “anything else that [he] threw into the motion would have been incidental." Resp. App. Exh. F at 32. This recollection is contradicted by the severance hearing transcript which shows that the possibility of damaging admissions was a substantial basis for the motion. Pet. App. Exh. E. Indeed, the discussion during that hearing focused almost entirely on potential prejudice due to damaging admissions.

      . As far as we can ascertain from the record, Jimmy Smith, Christi Smith, Priscilla Smith and another witness, Betty Smith, are not related to one another.

      . Any connection between Griffin’s brother and Sims was evidenced only by Moore's hearsay grand jury testimony that he had received an anonymous phone call connecting the two. The story was presented to the grand jury to suggest that Sims was at least indirectly responsible for the death of Griffin’s brother, thereby providing a motive for Griffin to shoot Sims, he prosecution apparently abandoned this theory and the speculation about a connection between the killings came in at trial only through Mr. Golden-hersh’s opening, Tr. at 158-59, and closing, Tr. at 498, arguments and his attempts to question Officer Moore about a possible connection. Tr. at 348-49.

      . It is worth pointing out, however, that if the trial court "knows or reasonably should know that a particular conflict exists” the court is required to initiate an inquiry. Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980). The Federal Rules of Criminal Procedure, in fact, require that whenever there is joint representation "the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation.” Fed.R.Crim.P., Rule 44(c). In the current case the prosecution brought the potential for conflict of interest to the attention of the trial court. There is perhaps a question whether at that point the trial court was obligated to inquire further into the matter. Since the Petitioner does not raise this question, however, we pursue it no further.

      . The district court did not make a specific determination whether Mr. Goldenhersh was informed by Griffin that he had been at the scene of the crime. Such a determination is not necessary to our resolution of this case, for we assume for purposes of this discussion that, contrary to Griffin's testimony, Mr. Goldenhersh was not told by Griffin that he had been present at the time of the shootings. We note, however, that Mr. Goldenhersh’s deposition testimony as to what Griffin told him in this regard is not entirely consistent. While Mr. Goldenhersh insists that Griffin never presented him with facts which conflicted with the alibi story, he also stated at one point that "my recollection of what Griffin told me about the occurrence was that he and Smith were there, but by the time they got there, that the shootings had already occurred.” Resp. App. Exh. F at 15. Later in the deposition, Mr. Goldenhersh backed away from this statement, saying that he was not sure where he had gotten the idea that Smith and Griffin had been present at the scene of the shootings. Similarly, Mr. Goldenhersh, at one point, stated that his discussion of accountability with Griffin was prompted by Griffin's questions concerning the effect of the statements he had made to Derango. Id. at 21-22. When pressed, however, Mr. Goldenhersh couldn't say for sure "whether [Griffin] talked in terms of this is what he told Derango or whether he talked in terms if this were his testimony." Id.

      In general, and understandably after a ten year lapse of time, Mr. Goldenhersh's deposition testimony indicated considerable confusion in his recollection of events. For example, he stated that the motion to sever was primarily based on concerns with Jimmy Smith's criminal record. In fact, the record of the severance hearing clearly indicates that Mr. Goldenhersh was at least equally concerned with the potential effects of Griffin's damaging admissions on Smith's case.

      . We note in this regard that the fact that a client tells an attorney he has an alibi does not require the attorney to present the alibi defense.

      . Cole contains a statement that, "in all of the cases where we have found an actual conflict of interest between codefendants who were jointly represented by the same defense counsel, the defendants did not abandon their defenses.” Cole, 752 F.2d at 1220. This statement is incorrect, ignoring as it does the finding of actual conflict of interest in Gray, in which the defendant abandoned an adversarial defense in favor of a common defense with a co-defendant whom her attorney jointly represented. Gray, 721 F.2d at 597. In any event, the statement in Cole was merely one of statistics and not one of principle.

      . The dissent contends that by emphasizing the strength of the case against Smith we "fail[] to concretely evaluate the relative strengths of the two potential defenses that were available to Griffin.” Dissent at 892. There are two reasons for focusing on the strength of the case against Smith. First, as the dissent acknowledges, the presentation of the joint alibi defense inextricably bound Griffin’s defense to that of Smith’s. Griffin's alibi defense could be no stronger than Smith's. Second, the power of the case against Smith meant that the joint alibi was essentially the only defense available to Smith. This circumstance deepened the conflict inherent in the joint representation.

      . The dissent agrees "that the evidence at trial did not conclusively demonstrate that Griffin was a shooter.” What the dissent neglects to note is that the evidence at trial did conclusively demonstrate, to all Intents and purposes, that Griffin and Smith were at the scene at the time of the shootings.

      . As the majority points out, Goldenhersh's memory was less than clear regarding the extent to which Goldenhersh discussed the innocent bystander defense with Griffin. Yet Griffin’s petition for habeas relief alleged that Goldenhersh erroneously advised him that the innocent bystander defense would fail, not that Goldenhersh neglected to discuss the defense with him. Moreover, the record is silent as to whether Goldenhersh explored with Griffin the dangers of linking his defense to Jimmy Smith’s.

      . Much of the majority’s opinion focuses on the relative strength of the cases against Griffin and Jimmy Smith. The fact that the case against Jimmy Smith was stronger than that against Griffin is relevant to evaluating the risks of linking Griffin’s defense to that of Smith. It does not, however, directly determine the ultimate issue of whether an unconflicted counsel would have presented the innocent bystander defense.

      . The majority distinguishes Cole as a case in which “the avenues of inquiry closed off by the joint representation were of little consequence.” Maj. Op. at 889. Yet there is no reason to believe that Griffin’s innocent bystander defense would have had a better chance of success than the potential defense that was foreclosed in Cole.

      . To support its finding of conflict, the majority also points to Goldenhersh’s use of the scapegoat argument and his confusion of the defendants at trial. Although the scapegoat argument may have been unhelpful, and even prejudicial, to the defendants, it appears to have been the result of bad trial strategy rather than any conflict of interest. Given the weakness of both of Griffin’s potential defenses, Goldenhersh very likely would have made the same argument regardless of the defense chosen. Similarly, Goldenhersh's confusion of the two defendants and the evidence against each of them may exhibit incompetence, but it does not demonstrate a conflict of interest. Griffin has not made a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), which provides relief for defendants who can demonstrate that their counsel’s deficient performance prejudiced their defense.


source: Caselaw Access Project

author: POSNER, Chief Judge.

license: Public Domain

text:
    Ruben PEÑA, Plaintiff-Appellant, v. Edward MATTOX, Charles Bretz, Patricia Schneider, and others unknown, Defendants-Appellees.
    No. 95-2053.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 8, 1995.
    Decided May 21, 1996.

      William W. Kurnik, Kurnik, Cipolla & Bar-asha, Arlington Heights, IL, John L. Martin, James L. Tuohy, James M. Urtis, Tuohy & Martin, Chicago, II, for Edward Mattox.
    James R. Schirott, Phillip A. Luetkehans (argued), Mary E. Dickson, Matthew F. Tar-box, Schirott & Luetkehans, Itasca, IL, for Charles Bretz.
    Michael W. Condon (argued), Hervas, So-tos & Condon, Itasca, IL, for Patricia Schneider.
    Before POSNER, Chief Judge, and LAY  and ROVNER, Circuit Judges.

       Hon. Donald P. Lay of the Eighth Circuit, sitting by designation.

   POSNER, Chief Judge.

This appeal from the dismissal of a complaint for failure to state a claim, and from the denial of a motion for reconsideration and for leave to file an amended complaint, presents two questions. The first is whether a man who becomes a father as a result of his criminal intercourse with a minor has an interest in the child that is protected by the due process clause of the Fourteenth Amendment as a form of liberty. The second (which we shall not have to decide, however) is whether interference by state officials with the filing of a suit under state law violates the federal Constitution.

The only source of facts is the allegations of the complaint, and we therefore take those allegations as true for purposes of this appeal. The plaintiff, Ruben Peña, began dating Amanda Mattox in 1991. Ruben was 19 and Amanda 15. Both were living in Illinois, Amanda with her parents. Amanda became pregnant by Ruben the following year. When Amanda’s parents discovered her pregnancy they forbade her to continue seeing Ruben, but she disobeyed their order.

The months passed. He happened to visit her on the evening of December 8, 1992. Her pregnancy was far advanced. She complained to him that she felt sick. He urged her to tell her parents about the feeling. Sometime after he left he called to find out how she was doing. He could not reach her, and no one at her home would give him any information about her. He visited several hospitals looking for her, but without success.

The next night, Amanda’s father, defendant Mattox, called Ruben and asked him to meet him at a restaurant. When Ruben arrived he was arrested on the basis of a felony criminal complaint signed by Mattox. The complaint charged Ruben with the felony of sexual intercourse with a person who is at least 13 but no older than 16 and at least five years younger than the defendant. 720 ILCS 5/12-16(d). Mattox knew that Amanda was not five years younger than Ruben. The complaint had been drafted or authorized by, and the warrant for Ruben’s arrest procured by, a state prosecutor named Charles Bretz, who is also a defendant, and who also knew that the charges were false. Bail was set at $30,000.

When Ruben’s sister learned of his arrest she called the Mattox home. Patricia Schneider, who was at the time an Illinois state judge and who is Amanda’s aunt and another defendant, answered the phone, identified herself as a judge, told the sister not to call the Mattox residence again, and added that Ruben’s bail would be increased the next day. Increased it was, to $45,000. Although the complaint does not charge Schneider with any role other than to field the phone call from Ruben’s sister, the fact that she told the sister that Ruben’s bail would be raised the next day, and that it was raised, suggests that she may have spoken to the judge who handled Ruben’s case.

Ruben could not make bail and remained in jail. Two days later, however, the charges against him were reduced to criminal sexual abuse, a misdemeanor that differs from the felony with which he had been charged originally in not requiring the defendant to be at least five years older than his sexual partner. 720 ILCS 5/12-15(c). Had he been charged with a misdemeanor in the first place, his bail could not have exceeded $1,000. Ruben pleaded guilty to this offense the same day, received a sentence of 24 months supervision, and was released. One condition of his release was that he have no contact with Amanda or any member of her immediate family until April 19,1994. Ruben left Illinois, fearful that the defendants would “continue to exert improper influence” over the law enforcement authorities of Illinois, as his complaint puts it.

The scheme to arrest and prosecute Ruben had been activated when Amanda, seven and a half months pregnant, went into labor on December 8, 1992 (that was the “sickness” which, unbeknownst to him, she was complaining of). Her parents spirited her off to Indiana, where she gave birth. The child was immediately placed for adoption. Ruben was not informed of the adoption or even that the child had been born and Amanda removed to Indiana, a state that has an unusual law, dispensing with the requirement that the father consent to adoption, if, as in this case, the mother was under 16 when the child was conceived. Ind.Code §§ 31-3-1-6(i)(2)(B)(ii), 35-42-4-3(e); Mullis v. Kinder, 568 N.E.2d 1087 (Ind.App.1991).

This suit was brought in June of 1994, some 18 months after the birth and arrest. The principal claim is that the defendants conspired to deprive the plaintiff of his parental rights. Since Bretz certainly and Schneider arguably were acting under color of state law, the conspiracy is actionable under 42 U.S.C. § 1983 even though the third defendant, Amanda’s father, was not. Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970). (The remaining defendants are “persons unknown,” and their role in the conspiracy is obscure.) The plaintiff seeks damages, not rights in the child which in any event these defendants have no power to give him.

Bretz claims immunity as a prosecutor (Schneider makes no claim of immunity), and rightly so with regard to everything that he did, such as the drafting or authorization of the original criminal complaint against the plaintiff, the procuring of the warrant, the request to increase Pefia’s bail, and the request that Peña be forbidden, as a condition of his punishment, to see Amanda. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But the complaint alleges that he was a member of a conspiracy that went beyond the criminal prosecution of the plaintiff. A prosecutor has no immunity for the acts that he does outside his role as a prosecutor, Buckley v. Fitzsimmons, 509 U.S. 259, 271-78, 113 S.Ct. 2606, 2615-18, 125 L.Ed.2d 209 (1993); and the law of conspiracy would impute to him, as a coeonspirator, the acts of the other, nonproseeutor members of the conspiracy. United States v. Williams, 81 F.3d 1434, 1441 (7th Cir.1996). The acts directly connected with the criminal prosecution were not the most significant acts committed in furtherance of the conspiracy. What really defeated Ruben’s effort to establish a parental right (besides Indiana law) was the fact that Amanda was taken out of the state, and the child put up for adoption, without his knowledge, and the further fact that he found himself, a stripling of 19, up against Illinois officialdom in the persons of a judge and a prosecutor.

It would not do to strip a judge or prosecutor of his immunity merely because he conspired with nonimmune persons. Dennis v. Sparks, 449 U.S. 24, 28, 30-31, 101 S.Ct. 183, 186, 187-88, 66 L.Ed.2d 185 (1980); John v. Barron, 897 F.2d 1387, 1392 (7th Cir.1990); Young v. Biggers, 938 F.2d 565, 569 (5th Cir.1991). But we are pretty sure that this principle does not extend to a case in which the conduct of the prosecutor’s co-conspirators includes acts wholly unrelated to the prosecutorial role. No doubt prosecu-torial immunity would be worth little if it could be stripped away upon proof that the prosecutor “agreed” with his principal witness that the latter would fabricate evidence against the accused. But to take the next step and hold that it protects a prosecutor who hires a hit man to kill the accused should the latter be acquitted would carry the immunity both outside its historical scope and beyond the point at which it is necessary to protect prosecutors from being harassed by suits by the prosecuted. See Buckley v. Fitzsimmons, supra, 509 U.S. at 277, 113 S.Ct. at 2618. Buckley holds that a prosecutor lacks absolute immunity for violating the plaintiffs rights while conducting investigative work even if that work produces evidence that the prosecutor could with absolute immunity present to a grand jury. Id. at 275, 113 S.Ct. at 2617. We do not think the prosecutor’s liability is less if he hires the investigator rather than conducting the investigation himself, and agrees that the investigator shall proceed without regard to the rights of the persons investigated.

From the issue of immunity we turn to the merits of the appeal. The defendants argue that when the deprivation of a constitutional right occurs through the unauthorized acts of subordinate state officials rather than through a decision made at the policy-making level of state or local government, the plaintiff must show that the state failed to provide adequate avenues of redress. This is the principle of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); see also Hudson v. Palmer, 468 U.S. 517, 531-33, 104 S.Ct. 3194, 3202-04, 82 L.Ed.2d 393 (1984). But the principle is limited to eases in which the deprivation is of a right that the due process clause secures only against the denial of procedural protection, Parratt v. Taylor, supra, 451 U.S. at 536, 101 S.Ct. at 1913; Zinermon v. Burch, 494 U.S. 113, 131-32, 110 S.Ct. 975, 986-87, 108 L.Ed.2d 100 (1990)—hence a right that can be infringed only by a denial of reasonable notice or of an opportunity for a fair hearing, the basic elements of due process in the procedural sense of the term. Otherwise an unconstitutional search, for example, could not give rise to a federal suit, since persons whose rights are infringed by a search have available to them state as well as federal judicial remedies. The search can give rise to a federal suit because the right asserted in such a suit derives from the substantive protections of the Fourth Amendment. The due process clause of the Fourteenth Amendment is merely the vehicle by which the right is enforceable against state as well as federal officers.

The claim here is that the defendants deprived Peña of a species of liberty that the Constitution protects from more than merely procedural infringements—denied him, that is, what is called “substantive due process.” He claims that a father has a right to his child, a right shared with the mother but a genuine right nonetheless (just as the right of a joint tenant, though shared, is a genuine right), of which the defendants could not constitutionally deprive him no matter how elaborate the procedures they provide, just as they could not constitutionally deprive him of his freedom of speech merely by taking it away in procedurally regular proceedings. See id. at 125, 110 S.Ct. at 983. No rights are absolute. A speaker can be punished for defamation even though defamatory speech is speech, and a child can be taken away from his parents, without a violation of the Constitution, upon adequate proof of abuse or neglect. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That does not make the parents’ rights merely procedural.

What is true is that the Supreme Court’s decisions dealing with parental rights, such as Santosky and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), speak mainly the language of procedural rather than of substantive due process. They emphasize the importance of the right not in order to show that it is more than procedural but rather to show that under the formula of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), it warrants a higher order of procedural protection. Santosky v. Kramer, supra, 455 U.S. at 759, 102 S.Ct. at 1397. Stanley, however, does add equal protection to the procedural brew, 405 U.S. at 658, 92 S.Ct. at 1216 — understandably in view of the cases in which the Court has protected the rights of illegitimate children. E.g., Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); see Bennemon on Behalf of Williams v. Sullivan, 914 F.2d 987, 988-89 (7th Cir.1990). Stanley was an illegitimate father, as it were, and if illegitimate children are entitled to complain about discrimination in favor of legitimate children, perhaps unmarried fathers should be entitled to complain about discrimination in favor of married fathers. Discrimination to one side, if ever there were an appealing ease for invoking the controversial and oft-abused doctrine of substantive due process it would be one in which the state tried to terminate parental rights on the basis of a bizarre though not necessarily discriminatory, invidious, or procedurally irregular belief — such as that Plato was right when in the Republic he proposed that all children be separated from their parents at birth and raised by the state. A dictum in Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), suggests that the Supreme Court would indeed strike down such a law in the name of substantive due process, even if the law applied to married as well as unmarried parents and therefore could not be attacked as a denial of equal protection.

The defense based on Parratt to Pefia’s suit must fail for another reason besides the fact that the right asserted in the suit is not purely a procedural one: the defendants prevented Peña from utilizing whatever procedural rights he might have had. By analogy (not that one is needed) to the doctrine of equitable estoppel, a defendant who prevents a plaintiff from exhausting his state judicial remedies should not be allowed to set up the plaintiffs failure to exhaust as a defense. Indiana law requires notice of a proposed adoption to be sent to the father and gives him 30 days after receiving the notice to contest the adoption. Had Peña followed this route he could have challenged the constitutionality of Indiana’s refusal to allow the father to prevent the adoption if the mother was not yet 16 when she became pregnant by him. We need not consider the chances of such a challenge succeeding, although it will become plain that we do not rate those chances high. Here it is enough to note that Peña never received notice of the adoption and did not even know that the child was being adopted or in what state. By the time he found out, the 30 days had long since expired. The defendants do not argue that Peña could have challenged the adoption after the expiration of that period. It is possible that he could have, precisely because he had not received notice, In re Paternity of Baby Girl Born 6-7-94, 661 N.E.2d 873, 877-78 (Ind.App.1996) (and see our discussion below of In re Adoption of Michael H.)— although probably with only the dimmest chances of success. With every passing day, considerations of what is best for the child would weigh ever more heavily in favor of leaving the child with its adoptive parents. Unwed Father v. Unwed Mother, 177 Ind.App. 237, 379 N.E.2d 467, 473 (1978).

Even before the child was born, Peña could have sued in an Illinois state court for a declaration of paternity. 750 ILCS 45/7(a). Had he gotten a judgment he could have taken it to an Indiana court, which, at least if the adoption had not yet become final, might — or might not — have been obliged to honor it by either the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A; Thompson v. Thompson, 484 U.S. 174, 183, 108 S.Ct. 513, 518, 518, 98 L.Ed.2d 512 (1988), or the Uniform Child Custody Jurisdiction Act, adopted by Indiana as Ind.Code eh. 11.6; see section 6 of the Act, Ind.Code § 31-1-11.6-6. The case law is in disarray. The statutes require states only to honor each other’s custody decisions, and the cases disagree on whether a paternity suit should be viewed in that light, given the potential impact on custody (here, that of the adoptive parents). Sheila L. on Behalf of Ronald M.M. v. Ronald P.M., 195 W.Va. 210, 465 S.E.2d 210, 221 (1995); White v. Blake, 859 S.W.2d 551, 562-63 (Tex.App.1993); Yon v. Fleming, 595 So.2d 573, 577 (Fla.App.1992); Williams v. Knott, 690 S.W.2d 605, 608 (Tex.App.1985). We need not decide. If the failure to exploit all available legal remedies were a defense to a deprivation of substantive constitutional rights (that is, rights to more than a fair procedure), which it is not, the defendants’ argument would still be vulnerable — to the charge of being unrealistic. Until his arrest, Peña could not have been expected to realize the importance of bringing a suit to establish his paternity of the fetus, and after his arrest he was too intimidated to sue. So at least we must assume in the present posture of this suit, which was dismissed on the pleadings, before any evidence had been presented.

But the suit must fail nevertheless. The reason is that the plaintiff has no constitutionally protected interest in the offspring of his relationship with Amanda Mattox. We do not reach this conclusion because the Constitution is silent on the rights of parents or because the due process clause speaks of process rather than of substance. We regard these bridges as having been crossed, and we therefore assume that the Constitution forbids a state to deprive parents — fathers as well as mothers, including natural fathers — of their children without good reasons for doing so. But in the word “their” is concealed an important qualification. It is not the brute biological fact of parentage, but the existence of an actual or potential relationship that society recognizes as worthy of respect and protection, that activates the constitutional claim. Lehr v. Robertson, 463 U.S. 248, 259-62, 103 S.Ct. 2985, 2992-94, 77 L.Ed.2d 614 (1983). In an earlier era the relationship was that of a married person to the child born to or adopted by the marriage partners. Unmarried parents, especially fathers, lacked secure, constitutionally recognized parental rights, their relative rightlessness being the reciprocal of the illegitimate child’s lack of secure, constitutionally recognized rights. 2 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 21.2, p. 572 (2d ed.1987).

That was yesterday. The moral consensus that insisted on confining procreation within marriage has shattered. More than one in five American children are now born out of wedlock. Their unmarried parents are “fornicators”; some are adulterers; fornication and adultery remain on the books of many states as crimes. But these crimes are not taken seriously, and when the father, though a fornicator, has established a relationship with his child, the relationship receives the prima facie protection of the Constitution, much as if he were married to the mother. Stanley v. Illinois, supra. (The adulterer, however, does not receive constitutional protection, provided the mother and her husband want to raise the child as their own. Michael H. v. Gerald D., 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989).) This principle rests on a practical recognition that biology and association can together establish a relationship between father and child that may be essential to the happiness of both, even if the formality of marriage is missing. In this case, of course, there was and is no relation, other than the biological, between natural father and child, but as this was not the father’s fault (as in such cases as Lehr v. Robertson, supra, 463 U.S. at 263-65, 103 S.Ct. at 2994-95, and Shoecraft v. Catholic Social Services Bureau, Inc., 222 Neb. 574, 385 N.W.2d 448, 452 (1986)), it is not decisive against his claim. E.g., Adoption of Kelsey S., 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 627, 823 P.2d 1216, 1228 (1992); In re Adoption of Baby Boy Doe, 717 P.2d 686 (Utah 1986).

But no court has gone so far as to hold that the mere fact of fatherhood, consequent upon a criminal act that our society does take seriously and that is not cemented (whoever’s fault that is) by association with the child, creates an interest that the Constitution protects in the name of liberty. The plaintiffs counsel conceded in response to a question at argument that had Amanda’s child been conceived as the result of a violent rape, the rapist would have acquired no constitutional right to interfere with the adoption of the child or otherwise to assert a parent’s rights. We think it equally plain that had Ruben been 40 years old and Amanda 12 when she became pregnant by him, the Constitution would not have entitled him to assert a parental right. The criminal does not acquire constitutional rights by his crime other than the procedural rights that the Constitution confers on criminal defendants. Pregnancy is an aggravating circumstance of a sexual offense, not a mitigating circumstance. The criminal should not be rewarded for having committed the aggravated form of the offense by receiving parental rights which he may be able to swap for the agreement of the victim’s family not to press criminal charges.

The offense that Ruben Peña committed was not as serious as the offenses that we have described. The sexual act was consensual, Ruben was 19 rather than 40, and Amanda was 15 rather than 12. The offense was a misdemeanor rather than a felony. But statutory rape, even in its misdemeanor form, that is, even if not aggravated by an extreme disparity in ages or the extreme youth of one of the sexual partners, is not one of those crimes like adultery or fornication that remain on the statute books, archaic and unenforced, as a residue of legislative inertia. It is not merely some quirk of Hoosier morality or religious conservatism. AIDS, abortion, and welfare have heightened public concern with teenage sex and pregnancy. In most states of the United States sex with a 15-year-old is a crime and is likely (somewhat, not highly, likely) to be prosecuted if a complaint is filed. A Congressman from Illinois was sent to prison recently for having sex with a 16-year-old. The conduct in which Ruben engaged with Amanda, and the sequel, her pregnancy, are conduct and consequence of which most societies, even today, strongly disapprove and for excellent reasons. A pregnancy is a serious misfortune for a 15-year-old. The Constitution does not forbid the states to penalize the father’s illicit and harmful conduct by refusing to grant him parental rights that he can use to block an adoption or simply enjoy as the fruit of his crime.

The maxim that a wrongdoer shall not profit from his wrong is deeply inscribed in the Anglo-American legal tradition. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889). It sometimes clashes with, and is sometimes even overridden by, competing principles. Where the wrong is of a technical, trivial character and the cost of righting it would be great, the maxim yields, as in cases in which a father who has established an enduring relationship with his child seeks constitutional protection for the relationship in the face of an argument that as a fornicator he should have no rights. The balance is different in a case such as the present. There is no relationship between plaintiff and child beyond the genetic and the wrong is not of a technical, trivial nature. We find only two published decisions in which parental rights have been granted to a male statutory rapist, and in both he was offering to support the child and thus, unlike this case, shoulder the burdens as well as seeking the benefits of his wrongdoing. In re Craig “V”, 116 A.D.2d 130, 500 N.Y.S.2d 568 (1986); In re Paternity Petition of LaCroix v. Deyo, 108 Misc.2d 382, 437 N.Y.S.2d 517 (Fam.Ct.1981). These decisions emphasize the value to the child of the father’s offer of support. There is no offer here, and the child has a father, albeit adoptive rather than natural. We have found cases in which an underage male, the victim of statutory rape by a woman, has been required to pay child support. State ex rel. Hermesmann v. Seyer, 252 Kan. 646, 847 P.2d 1273 (1993); Jevning v. Cichos, 499 N.W.2d 515 (Minn.App.1993); In re Paternity of J.L.H., 149 Wis.2d 349, 441 N.W.2d 273 (App.1989). These cases could be thought to be “rewarding” the malefactress by lightening the cost to her of supporting the child. But of course the motive is different; it is to help the child. Peña is not offering to support the child, who already has, in any event, two parents. He is not to be criticized for not offering support. His parental rights were severed by the adoption and he does not seek their restoration, perhaps out of consideration for the child. Our point is only that if child support were being sought from him, he would have an argument that parental duties imply correlative parental rights.

In denying him the benefit of this argument we are not rewarding the defendants for having prevented Peña from obtaining parental rights in the first place by spiriting Amanda out of the state and putting the child up for adoption as soon as it was born. The cases that we have cited in which parental rights were granted to statutory rapists are not cases in which the rapist was trying to block an adoption. A statutory rapist who has managed somehow to establish a' relationship with his child or who in default of adoption is being dunned for child support may have a claim to parental rights. But he does not have a right to create such a relationship by blocking the adoption of the child. To recognize a blocking right would be to allow the wrongdoer to benefit from his wrongdoing. Dicta in some cases, e.g., In re Adoption of Michael H., 10 Cal.4th 1043, 43 Cal.Rptr.2d 445, 898 P.2d 891, 901 (1995), suggest that an unmarried father might be allowed, if not to block, at least to be heard in opposition to, the adoption of his child if he moved as swiftly as circumstances allowed to establish his willingness to assume parental responsibilities. But, since fornication is not a crime in every state, not every unmarried father is a criminal.

Peña argues that he paid for his crime by being placed on supervision for 24 months, and the slate should now be wiped clean. But the murdering heir who is sent to prison for his crime is not allowed upon release to claim his inheritance on the ground that he has been punished enough, or the murderer allowed to defend against the wrongful-death suit of his victim’s estate on the ground that he has suffered enough by being punished by the criminal law. These analogies are imperfect. But they show that criminal punishment does not necessarily wipe the slate clean, putting the criminal back in exactly the position that he would have occupied had he not committed the crime. Indiana did not want Peña to impregnate an underage female and does not want to reward him for his having done so by bestowing the rights of a parent on him — more precisely, the financial equivalent of those rights, for which he is suing.

The plaintiff argues that most states, perhaps all but Indiana, do recognize the parental rights of child molesters and statutory rapists. That is not all clear. The cases are very few, as we have seen, and most of them involve a female rather than male violator of the sex statutes, reflecting the traditional, and still widely accepted, view that the unmarried mother has greater rights than the man who impregnated her because the burdens of pregnancy always and of parenting usually are greater for the mother than for the father. See not only the Clark treatise cited earlier but also Planned Parenthood v. Danforth, 428 U.S. 52, 71, 96 S.Ct. 2831, 2842, 49 L.Ed.2d 788 (1976); Planned Parenthood v. Casey, 505 U.S. 833, 896, 112 S.Ct. 2791, 2830, 120 L.Ed.2d 674 (1992). All are distinguishable from this case, as we have seen. No weight can be given to the fact that states do not have explicit exceptions in their parental right statutes for the rapist, etc. This absence does not prove that any of these states would interpret the statutes as entitling the rapist, statutory or otherwise, to obtain the rights of a parent. Judge-crafted exceptions to statutes are common and uncontroversial where necessary to avoid absurd results. Recall counsel’s concession that the violent rapist would not be entitled to any parental rights — yet there is no exception in the statutes for violent rapists any more than there is for statutory rapists. When a state court does grant parental rights to the statutory rapist, thinking that as a practical if not legal matter it will be impossible to enforce a duty of child support against the father without giving him rights to the child, this is a pragmatic judgment that may confirm the wisdom of the state legislatures in not enacting a blanket exclusion of the criminal father from entitlement to a father’s rights, but that does not dictate the constitutional interpretation that the plaintiff seeks, especially in a case in which the duty of support is not involved. These statutes, their silences, the policies reflected in their interpretation, their practical enforcement by child welfare authorities in the different states — none of these things shows that a national consensus has formed around the proposition that a child conceived in crime belongs to the criminal.

When we asked the plaintiffs counsel what his strongest argument (apart from arguments based on the cases, which do not support his claim) was, he told us that the father deserves the child and the child the father. We have adequately discussed the first half of this proposition. As for the second, we think a state has discretion to decide whether it is better to encourage the kind of conduct in which the plaintiff engaged by giving him parental rights or discourage it by refusing to bestow legal protection on the relationship between father and child. The interest asserted by the plaintiff is not so compelling as to warrant our overriding the state’s choice in the name of the Constitution.

The plaintiffs second claim, which is unrelated to the first, is that by blocking him from filing his Illinois paternity action the defendants took away a form of liberty or property — the right of access to the courts— in violation of the due process clause of the Fourteenth Amendment. As we saw earlier, it is not clear that an Illinois paternity suit would have blocked the adoption; but let us assume it would have.

Many of the cases that the plaintiff cites in support of the right to access claim involve the denial of access to the courts by inmates of jails and prisons who wish to assert federal claims, e.g., Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); for those are most of the cases in which the right has been recognized. They are cases, however, in which a federal right of access to the courts can be viewed as derivative from the federal substantive rights sought to be enforced. Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974); Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir.1993). The derivative right is not involved in the present case. The plaintiff was not prevented during his two days in jail from obtaining access to the courts to assert any federal constitutional right that he might have had as a consequence of the circumstances of his arrest and incarceration. And this is not a case in which a public officer is charged with having discriminated against the plaintiff on a forbidden ground, as in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

Peña is complaining that the defendants deprived him of a state-court remedy for a state-law right; and it might be thought that for such a deprivation state-law doctrines of fraudulent concealment, equitable estoppel, malicious prosecution, and abuse of process provide all the process that is due. Pena’s complaint contains pendent state law claims for abuse of process and malicious prosecution. The district judge properly relinquished jurisdiction over these claims when he dismissed the plaintiff’s federal-law claims. 28 U.S.C. § 1367(e)(3). No one supposes that every time a public employee does something that caused a plaintiff having a claim under state law to miss a filing deadline, the plaintiff can sue for a deprivation of a constitutional right. Crowder v. Sinyard, 884 F.2d 804 (5th Cir.1989), disapproved on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). And although the right to a remedy is not the same thing as the right to notice and a hearing, e.g., Jackson v. Procunier, 789 F.2d 307, 310 (5th Cir.1986); Morello v. James, 810 F.2d 344 (2d Cir.1987), the principle of Parrott v. Taylor, discussed earlier, might be thought to bar a plaintiff who had an adequate state judicial remedy from complaining in federal court of a random and unauthorized abuse of process by state officers.

Notwithstanding the concerns that we have expressed, a number of cases recognize a right of access to the courts without tying the right to some underlying federal right that the plaintiff wants access to the courts in order to enforce. In most of these, like our own Bell v. City of Milwaukee, 746 F.2d 1205, 1261-65 (7th Cir.1984), and Crowder v. Sinyard, supra, 884 F.2d at 811-12, it is obvious, whether or not the court remarked the point, that the plaintiff sought access in order to enforce a federal right. But in quite a number of other eases, illustrated by Schrier v. Halford, 60 F.3d 1309 (8th Cir.1995); Jackson v. Procunier, supra; Ryland v. Shapiro, 708 F.2d 967, 971-75 (5th Cir.1983), and Harrison v. Springdale Water & Sewer Comm’n, 780 F.2d 1422, 1427-28 (8th Cir.1986) (which incidentally rejects a Parrott limitation on the right of access to the courts, id. at 1428 n. 10), it is equally clear that the underlying right was not federal, though some of the cases, such as Schrier, construe the right of access more narrowly if there is no underlying federal right. These cases identify a number of possible sources for an independent, nonderivative federal constitutional right of access to the courts, including the privileges and immunities clause, the petition clause of the First Amendment, and the due process clause. Although there is support in some decisions of the Supreme Court, notably California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972), it does not appear that the Court has ever examined the question carefully.

We need not try in this case to resolve the issue, which, depending on how broadly or narrowly one reads Bell, may be open in this circuit. The issue is waived. The only federal claim in the complaint is a claim that the defendants deprived the plaintiff of his parental rights. The plaintiffs brief in opposition to the motion to dismiss the complaint did not allude to the right of access to the courts. A claim of infringement of the right did not appear until a post-judgment motion. That was too late.

The last issue is whether the district judge abused his discretion in refusing to allow the plaintiff to amend his complaint after judgment to add a count for false arrest in violation of the Fourth Amendment. Had the plaintiff correctly been charged with a misdemeanor rather than a felony, he would still have been arrested, but the bail would have been set much lower — it could not have exceeded $1,000, possibly within his reach— and so he might not have had to spend two days in jail. If the defendants deprived the plaintiff of his liberty for two days on the basis of criminal charges that they knew to be false, they violated his constitutional rights. So there is a colorable claim lurking here, though it is not a false arrest claim. See, e.g., Bergren v. City of Milwaukee, 811 F.2d 1139, 1142-43 (7th Cir.1987). There was probable cause to arrest Peña, though only for the misdemeanor offense. That is a detail. What prevents Peña from obtaining relief for the deprivation of his liberty is the rule that once, your suit is dismissed you cannot get the complaint amended without first asking that the judgment be set aside. Vicom, Inc. v. Harbridge Merchant Services, Inc., 20 F.3d 771, 784-85 (7th Cir.1994). The suit is over. There is no complaint to amend. Peña did not ask the district court to set aside the judgment, and therefore his motion to amend the complaint was properly denied.

The plaintiff also argues, however, that he didn’t have to seek to amend the complaint, because the narrative of facts in the complaint clearly showed that he had been falsely arrested; the court should have assumed that the complaint charged this and not dismissed the suit. But if the plaintiff had wanted to charge false arrest in the original complaint rather than merely include it in an enumeration of the overt acts of the conspiracy, he would have done so or at least would have voiced the charge when he was resisting the dismissal of the complaint for failure to state a claim. The misnamed false-arrest charge, like the charge of denial of access to the courts, was plainly an afterthought, thrown into the hopper after the judge had rejected the other claims, and indeed after he had dismissed the suit; so it is waived. Wilson v. Wilson, 46 F.3d 660, 667 (7th Cir.1995).

,We note that although those two days of lost liberty were due to the size of the bail, the plaintiff has not claimed a violation of the excessive-bail provision of the Eighth Amendment. We therefore need not decide whether that provision is applicable (by interpretation of the due process clause of the Fourteenth Amendment) to the states, as we assumed in Faheem-El v. Klincar, 841 F.2d 712, 718 n. 8 (7th Cir.1988) (en banc), but which was left open in Brouming-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 276 n. 22, 109 S.Ct. 2909, 2920 n. 22, 106 L.Ed.2d 219 (1989) (though its applicability was strongly urged in a separate opinion, id. at 283-84, 109 S.Ct. at 2924-25), or whether, if so, it is enforceable by means of a suit for damages, as assumed in Wagenmann v. Adams, 829 F.2d 196 (1st Cir.1987).

AFFIRMED.