Habeas – Jury Exposure to Extraneous Information
Subsequent to trial, Hall discovered that a juror’s son was a fellow inmate of Hall who initially told the juror that Hall was likely innocent, but later indicated that he “and several co-inmates had changed their mind about Hall and thought him guilty.” The (Indiana) state court ruled that this extrinsic information wasn’t prejudicial: the burden to show actual prejudice from exposure to extraneous information is on the defendant and, because a jury verdict can’t be impeached, Hall therefore could neither show prejudice nor even have an evidentiary hearing on how the jury was affected: “Because the appellate court was not permitted to consider any testimony from jurors regarding their perception of the effect of the extraneous information, the court believed that it had a dearth of information upon which to rule, and found against Hall simply because the burden was on him to prove prejudice.” (If this strikes you as, “Heads I win, tails you lose,” you’d be right; don’t bother cogitating further: even AEDPA doesn’t set the review-bar that low, as the Seventh proceeds to demonstrate.) Although diminished in stature, the “Remmer presumption” that jury exposure to extraneous information harms the defendant, Remmer v. United States, 347 U.S. 227 (1954), retains sufficient vitality to require relief here:
Taking Phillips and Olano together, two conclusions seem inescapable: (1) not all suggestions of potential intrusion upon a jury deserve a presumption of prejudice, and thus the government does not always carry the burden of proving prejudice; but (2) there are at least some instances of intrusion upon a jury which call for a presumption of prejudice, contrary to the State’s contention. … We have interpreted Supreme Court case law as establishing that the Remmer presumption is, in fact, vital, though its use should not be automatic regardless of the level of prejudicial impact that is likely to flow from a given intrusion. … What is more, we have implied, though not stated directly, that the Remmer presumption is clearly established federal law under AEDPA, meaning state courts must apply the Remmer presumption to avoid running afoul of the federal Constitution. …
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Taking these cases together, as well as the actual language used by the Supreme Court, what seems to be “clearly established” is that federal constitutional law maintains a presumption of prejudice in at least some intrusion cases. The standard applied by the Court of Appeals of Indiana requires that a defendant prove that he was probably harmed by an extraneous communication had with a juror, which leaves no room for the potential for a presumption, in contravention of Remmer and Olano….
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… Even under a narrow reading of Remmer that permits a presumption of prejudice only where there is a likelihood of prejudice, … a presumption was due to Hall in his postverdict hearing, and the state court decision to the contrary was an abuse of discretion. Thus, we are confident that despite some ambiguity regarding when the Remmer presumption should apply, all reasonable interpretations of Remmer and its progeny would lead to a presumption of prejudice in favor of Hall in his postverdict hearing. Thus, the [Indiana state] trial court that oversaw Hall’s conviction acted contrary to clearly established federal law under AEDPA.
Hall can now see the finish line looming within touch, but that doesn’t mean the court is going to break the tape for him:
… The Remmer presumption is meant to protect against the potential Sixth Amendment harms of extraneous information reaching the jury, but a state court’s failure to apply the presumption only results in actual prejudice if the jury’s verdict was tainted by such information. … Thus, Hall must now prove what he allegedly failed to prove to the Indiana courts: that he was likely prejudiced by the intrusion upon his jury. It is enough, however, that we have a “grave doubt as to the harmlessness of [a constitutional error]” to grant relief. Basinger, 635 F.3d at 1052 (quoting O’Neal v. McAninch, 513 U.S. 432, 445 (1995)).
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What the state courts should have done, at least to satisfy their federal constitutional obligations, is:
to limit the questions asked the jurors to whether the communication was made and what it contained, and then, having determined that communication took place and what exactly it said, to determine—without asking the jurors anything further and emphatically without asking them what role the communication played in their thoughts or discussion—whether there is a reasonable possibility that the communication altered their verdict.
Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th Cir. 1991). Because the state court judge did not make any determination of this nature, we hold that the court abdicated its duty to make a factual determination regarding the likelihood of prejudice in Hall’s case. …
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… If, hypothetically, the legitimate evidence presented by the State in a habeas petitioner’s case was overwhelming, and the trial judge in such a case gave a stern pre-verdict warning to the jurors to only consider facts that were presented during trial, concerns about the prejudicial impact of extraneous information might be lessened.
… We therefore must vacate the district court’s grant of Hall’s habeas petition and remand to the district court. It is there that the State will have an opportunity to show, despite the strong evidence of prejudice already presented by Hall, that countervailing facts would have alleviated concerns of a prejudiced jury.
