Oswald v. Bertrand

374 F.3d 475

Theodore W. OSWALD, Petitioner-Appellee, v. Daniel BERTRAND, Respondent-Appellant.

No. 03-2092.

United States Court of Appeals, Seventh Circuit.

Argued November 3, 2003.

Decided June 29, 2004.

Rehearing and Rehearing En Banc Denied August 12, 2004.

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Jerome F. Buting (argued), Buting & Williams, Brookfield, WI, for Petitioner-Appellee.

Warren D. Weinstein (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellant.

Before POSNER, DIANE P. WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge.

Oswald, a Wisconsin state prisoner, sought federal habeas corpus after exhausting his state remedies in State v. Oswald, 232 Wis.2d 62, 606 N.W.2d 207 (App.1999), review denied, 233 Wis.2d 84, 609 N.W.2d 473 (2000). The district court found that the state court of appeals had been unreasonable in ruling that the judge who presided at Oswald's criminal trial had conducted a constitutionally adequate inquiry into possible jury bias. 249 F.Supp.2d 1078 (E.D.Wis.2003). The state appeals.

Ordinarily it would be clear that the issue for the district court and us would be whether in turning down Oswald's claim of constitutional error the state courts had made "an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). But this is only if the prisoner's claim was adjudicated by the state court "on the merits." § 2254(d). If not, the special deference to a state court's determinations that is prescribed by section 2254(d)(1) goes by the board. Braun v. Powell, 227 F.3d 908, 916-17 (7th Cir.2000); Moore v. Parke, 148 F.3d 705, 708 (7th Cir.1998); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir.2003). The state appellate court discussed and disposed of Oswald's claim that the jury selection procedure used in his case had denied him an impartial tribunal, but it did not discuss the claim with reference to federal law. No matter. So long as the standard it applied was as demanding as the federal standard, Mitchell v. Esparza, 540 U.S. 12, ___, 124 S.Ct. 7, 10, 157 L.Ed.2d 263 (2003) (per curiam); Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam); Reid v. True, 349 F.3d 788, 799-800 (4th Cir.2003); Sellan v. Kuhlman, 261 F.3d 303, 311-14 (2d Cir.2001) — and there is no suggestion that it was not, cf. Hammill v. State, 89 Wis.2d 404, 278 N.W.2d 821, 822 (1979) — the federal claim is deemed adjudicated on the merits and its rejection therefore entitled in this habeas corpus proceeding to the deference prescribed by section 2254(d)(1).

The nature of Oswald's claim has now to be explained. The due process clause of the Fourteenth Amendment entitles a state criminal defendant to an impartial jury, Morgan v. Illinois, 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), which is to say a jury that determines guilt on the basis of the judge's instructions and the evidence introduced at trial, as distinct from preconceptions or other extraneous sources of decision. Patton v. Yount, 467 U.S. 1025, 1037 n. 12, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984); Irvin v. Dowd, 366 U.S. 717, 721-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); United States v. McClinton, 135 F.3d 1178, 1185-86 (7th Cir.1998); United States v. Angiulo, 897 F.2d 1169, 1182-83 (1st Cir.1990). In addition — and this is critical — due process requires the trial judge, if he becomes aware of a possible source of bias, to "determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial." Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 98 L.Ed. 654 (1954); see also United States v. Thomas, 463 F.2d 1061, 1063-64 (7th Cir.1972); United States v. Humphrey, 208 F.3d 1190, 1198-99 (10th Cir.2000); United States v. Davis, 177 F.3d 552, 556-57 (6th Cir.1999); Howard v. Moore, 131 F.3d 399, 422 (4th Cir.1997) (en banc). In Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), the Supreme Court put the two points together, saying that "due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." The Court also made clear in Smith that while Remmer had been a federal prosecution, the duty of inquiry is equally engaged when a defendant is tried in a state court. 455 U.S. at 215, 218, 102 S.Ct. 940; see also Whitehead v. Cowan, 263 F.3d 708, 724-26 (7th Cir.2001); Evans v. Young, 854 F.2d 1081, 1083-84 (7th Cir.1988); United States v. Bradshaw, 281 F.3d 278, 289-93 (1st Cir.2002); Howard v. Moore, supra, 131 F.3d at 422.

In 1994, Oswald, who was then 18 years old, robbed a bank with his father. Fleeing toward Waukesha by car, they were stopped by two policemen. The two Oswalds, both armed with semi-automatic rifles, shot at the officers, killing one, and continued their flight, in the course of which they took a woman hostage and forced her to drive them in her van. At a police roadblock there was another shootout; the hostage and two officers were wounded, the hostage escaped, and the Oswalds took off in the van; eventually it crashed and they were arrested. The second shootout, the hostage's escape, and the crash of the getaway car were all videotaped, and broadcast throughout the Waukesha area. As the district judge explained, "the case generated an enormous amount of publicity both in the immediate aftermath of the crime and during the period leading up to the trials of the Oswalds. The serious nature of the offenses, the fact that a local police officer was killed, the existence of the videotape (with its echoes of the O.J. Simpson case) and the fact that the defendants were father and son combined to make the case probably the most notorious in the history of Waukesha County." The widow of the police officer who had been killed initiated a highly publicized petition for reinstatement of the death penalty in Wisconsin. Hundreds of T-shirts and sweatshirts were sold, many to police and prison guards, depicting the crashed van, bearing the legend "Oswald's final mistake was coming to the Town of Pewaukee," and calling for the reinstatement of the death penalty in Wisconsin.

Oswald (the son, the petitioner in our case) was tried separately from his father nine and a half months after their crime spree and was convicted and given the redundant sentence of 565 years in prison consecutive to two life sentences. His father was tried separately and received a comparable sentence. Because of the avalanche of pretrial publicity, Oswald could doubtless have obtained a change of venue had he moved for it, but he did not. His only defense against the criminal charges was that his father had coerced or brainwashed him into participating in the robbery and subsequent mayhem, and, again in the words of the district judge, Oswald's lawyer thought that "because some of the publicity had portrayed him as a victim of his abusive and manipulative father, a local jury might be more receptive to his defense than a jury elsewhere" in Wisconsin.

The court sent jury questionnaires to 156 residents of Waukesha County, more than 80 percent of whom responded that on the basis of the media coverage of the crime they thought that Oswald was guilty. Fifty of the 156 were voir dired, and of those 50, 29 were picked to be the jury pool. Since under Wisconsin law each side would have seven peremptory challenges (the usual number for crimes punishable by life in prison is six, but since the judge decided to seat three alternates he gave each side one more peremptory challenge, Wis. Stat. Ann. §§ 972.03, .04(1)), if all 14 were used there would still be 15 jurors — 12 regulars and the three alternates. Hence the cut to 29.

It took four days to winnow the list down first from 156 to 50 and then from 50 to 29, and during this period the prospective jurors spent all day in a room in the courthouse from which the bailiff would lead them out one by one to be questioned in the courtroom. On the last day, one of the prospects, Roger Klitzka, in the course of being voir dired, said, "I know I've learned more in the last three days here sitting down there in that room about this case than I have since the day that it happened.... [A]ccording to what I hear, the young man is guilty of what he is being accused of and things like that and everything and I just think it's just a waste of time." The judge asked him whether he meant "it's a waste to have the trial at all," and Klitzka confirmed that that was indeed what he meant.

Apparently this was not just Klitzka's personal opinion (he was not selected for the jury). The implication of what he said was that the entire jury pool had made up its mind that Oswald was guilty. We will never know for sure, however, what he meant. Rightly fearing that the prospective jurors had been conducting marathon bull sessions on Oswald's guilt, Oswald's lawyer asked Klitzka to explain what he had heard in these sessions. Klitzka refused to answer, and at the prosecutor's urging the judge refused to direct him to answer. Oswald's lawyer requested the judge to ask the other prospective jurors what had been discussed in the jury room. The prosecutor (who made every possible effort to prevent the judge's determining whether jurors were biased) objected, saying it was "crazy" to think that the jurors had not discussed the case when they had been sitting "for 4 days in a crowded jury room downstairs" in "a case that everybody other than one juror that we have talked about has seen a videotape concerning probably the highest profiled case in this county in 20 years and not to even think or mention the case or mention how disgusted they are with the process." Apparently the "process" that the prosecutor thought must have disgusted the prospective...