Deshawn Harold Jewell v. Gary Boughton, No. 22-3082, 1/22/24
Despite an obvious constitutional violation, Jewell is still precluded from obtaining a new trial given that Wisconsin courts did not unreasonably find the error harmless.
(See our post on the previous state court litigation here).
During Jewell’s trial, the jury sent a factual question to the court, asking whether the numbering system in a “six pack” containing mugshot photos was the same as in the photo array used during a controverted identification procedure. (p.3). The court answered the question in the negative without consulting the parties. (p.3). Jewell ultimately argued in a postconviction motion that this was a Sixth Amendment violation entitling him to a new trial. (p.4). The motion was denied in the circuit court and the Wisconsin Court of Appeals affirmed, holding that while there was a Sixth Amendment violation, any error was harmless. (p.4). After his habeas was denied by the district court, he appealed to the Seventh Circuit which affirms. (p.4).
The Seventh Circuit identifies two rationales given by our COA for finding the error harmless. First, that the evidence was sufficient to convict. (p.6). This first rationale, however, is flat-out wrong as it contravenes Chapman v. California. (p.7). However, for Jewell to succeed, he has to show that the COA got it wrong on both grounds–and this is where he fails.
COA’s second justification for finding the error harmless was that the court’s answer to the jury was a factually correct statement based on undisputed trial testimony. (p.7). Jewell argues that this is an irrelevant consideration, as what matters is that the circuit court improperly invaded the province of the jury, which is the finder of fact in a criminal trial. (Id.). This is where AEDPA rears its head. According to the Seventh Circuit, this could be a close call if it were presented to the court on direct appeal. (p.9). To that end, it identifies a number of divergent approaches in different circuits and avers that “[t]his circuit has grappled with similar harmlessness determinations.” (Id.). This, however, is not a direct appeal; it is a habeas case requiring Jewell to establish that COA’s holding went beyond what “fairminded” jurists could disagree over. (p. 10). Thus, even though COA may have erred, that error was within this zone of “fairminded disagreement” and, hence, the Seventh Circuit affirms. (And, even if he had succeeded on this point, the Court makes clear that it would not have granted the writ as Jewell has not established any “grave doubts” about his conviction, as required by Brecht v. Abrahamson.) (Id.).
