Mark A. Wisehart v. Cecil Davis

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1632
M ARK A. W ISEHART ,
Petitioner-Appellant,
v.
C ECIL D AVIS ,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 98 C 1027—Larry J. McKinney, Chief Judge.
____________
A RGUED M ARCH 23, 2005—D ECIDED M AY 10, 2005
____________
Before F LAUM , Chief Judge, and P OSNER and W OOD , Circuit
Judges.
P OSNER , Circuit Judge. In 1983 an Indiana jury found Mark
Wisehart guilty of murder and robbery of an elderly
woman, the burglary of her home, and the theft of her
property. The jury recommended the death penalty, and the
judge agreed and sentenced Wisehart accordingly. After
exhausting state judicial remedies in Wisehart v. State, 484
N.E.2d 949 (Ind. 1985), 693 N.E.2d 23 (Ind. 1998), Wisehart
unsuccessfully sought federal habeas corpus, and has now
appealed to us.

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2 No. 04-1632
The police discovered the body as the result of an anon-
ymous phone call—by Wisehart himself, who disguised his
voice. Wisehart lived in a homeless shelter called the
“Christian Center” to which his victim had been a regular
visitor. Another resident, a companion in crime to Wisehart
named Johnson, testified that Wisehart had sent him a series
of letters in which he talked about going to old people’s
houses and robbing them and killing anyone who got in the
way; the letters were placed in evidence. Johnson also
testified that after the murder Wisehart, realizing that
Johnson would be a witness, told him: “Try to make it look
like I’m crazy.”
Wisehart gave the police a full and detailed confession a
week after the murder. His defense at trial was that he was
insane and his confession (which he admitted making) false.
He makes two arguments. (A third, that some of the jury
instructions suggested he might be convicted on the basis of
a mere preponderance of the evidence, was procedurally
defaulted and is anyway completely without merit.) The
first argument is that the state violated the Brady doctrine
(see, e.g., Strickler v. Greene, 527 U.S. 263, 280-82 (1999);
Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v.
Fallon, 348 F.3d 248, 251-52 (7th Cir. 2003)) by failing to
disclose benefits that Johnson had received as a result of his
agreeing to testify. The prosecution’s giving a witness bene-
fits—leniency, cash, or anything else—can be used by a
cross-examining defense counsel to undermine the witness
in two, possibly three, distinct ways. The first and most
common is by showing that the benefits were given in
return for the witness’s providing testimony that would
help the prosecution. He might have told the prosecutor
what he would testify to if called and the prosecutor might
have explicitly agreed to give him specified benefits if he tes-
tified consistently with his proffer. E.g., Giglio v. United States,

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No. 04-1632 3
405 U.S. 150, 152-55 (1972); Abbott v. United States, 195 F.3d
946, 948-50 (7th Cir. 1999); Shabazz v. Artuz, 336 F.3d 154, 161-
62 (2d Cir. 2003). Or there might have been a tacit under-
standing that if his testimony was helpful to the prosecution,
the state would give him a break on some pending criminal
charge. Another example of an implicit agreement would be
if the prosecutor promised a witness $100,000 contingent on
the defendant’s being convicted. Cf. United States v.
Villafranca, 260 F.3d 374, 380 (5th Cir. 2001). Express or tacit,
either way there would be an agreement, it would be usable
for impeachment, and it would have to be disclosed to the
defense. But the Indiana Supreme Court found that in this
case there had been no agreement, express or implied, and
as the finding has not been rebutted by “clear and convincing
evidence,” it binds us. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 324 (2003); Barrow v. Uchtman, 398 F.3d
597, 602-03 (7th Cir. 2005). The finding further implies that
Johnson was not testifying falsely when he denied having
any “kind of deal” with the prosecution regarding his other
crimes; a deal is an agreement. And so there was no viola-
tion of the rule of Napue v. Illinois, 360 U.S. 264 (1959).
The second way of invoking Brady is by showing that al-
though there was no quid pro quo, the state, as in our Boyd
and Williams cases, United States v. Boyd, 55 F.3d 239, 243-45
(7th Cir. 1995); United States v. Williams, 81 F.3d 1434, 1438
(7th Cir. 1996); see also United States v. Sipe, 388 F.3d 471,
488-90 (5th Cir. 2004); United States v. Soto-Beniquez, 356 F.3d
1, 41 (1st Cir. 2004), had lavished benefits (sex, free long-
distance calls, cash, or what have you) on its witnesses in
the hope of making them feel part of the state’s team and as
a result inclined, out of gratitude, friendship, or loyalty, to
testify in support of the prosecution. In Sipe, for example,
the aliens who testified for the government “were given . . .
significant benefits, including Social Security cards, witness

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4 No. 04-1632
fees, permits allowing travel to and from Mexico, travel
expenses, living expenses, some phone expenses, and other
benefits. They were essentially given all, and more, of the
benefits they were arrested for trying to obtain illegally—
benefits so valuable that they took great risks to obtain them
by crossing the border illegally . . . . [Prosecutors stated] that
the aliens needed to be ‘kept in orbit’; that the agents
needed to maintain ‘close control’ over the witnesses; that
they must be kept ‘in pocket’; and that the aliens needed to
be ‘re-commit[ted] to the cause.’ This evidence, which was
withheld from Sipe, reveals that the aliens were dependent
upon the government for their most basic needs, such as
visiting and communicating with their families.” 388 F.3d at
488-90. There is nothing comparable here.
There may be a third category; it could be thought inter-
mediate between the first two. This would be the definite
benefit that is neither a quid pro quo nor lavish, yet permits
an inference that the witness’s testimony would be affected.
Suppose the prosecutor had given Johnson $500, with no
words exchanged, and later called him as a witness. Johnson
might think either that his acceptance of the money had
created an obligation to cooperate with the prosecution
or that he should cooperate out of gratitude. There would be
an argument for requiring disclosure of such a benefit,
especially as the requirement would not create the problem
of fuzzy boundaries that requiring disclosure of a mere
forbearance to prosecute a witness for unrelated crimes, dis-
cussed next, would create. We need not decide how strong an
argument; Johnson received no such definite benefit.
What is decisive for this case is this court’s refusal to rec-
ognize a fourth Brady category, in which the state merely
doesn’t come down as hard on a witness as it could. “Todd
cannot prove an agreement existed. He argues that at the
very least Nielson had an ‘expectation’ of benefit. But what

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No. 04-1632 5
one party might expect from another does not amount to an
agreement between them. And Todd does not argue that the
state knew of Nielson’s expectation or that he could not
have uncovered that expectation with reasonable diligence.
This brings us back to the agreement, which Todd cannot
show existed. Without an agreement, no evidence was sup-
pressed, and the state’s conduct, not disclosing something
it did not have, cannot be considered a Brady violation.”
Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002). Or as
the Second Circuit put it in Shabazz v. Artuz, supra, 336 F.3d
at 165 (emphasis in original), “The government is free to
reward witnesses for their cooperation with favorable treat-
ment in pending criminal cases without disclosing to the
defendant its intention to do so, provided that it does not
promise anything to the witnesses prior to their testi-
mony . . . . [T]he fact that a prosecutor afforded favorable
treatment to a government witness, standing alone, does not
establish the existence of an underlying promise of leniency
in exchange for testimony.”
The objections to the extension for which Wisehart contends
are twofold. First, the category has no ascertainable bound-
aries. Rarely does the state end up charging a defendant
with every possible crime that he may have committed.
Because the state doesn’t have the resources to do that, most
criminal cases are disposed of pursuant to plea agreements
that involve some concessions on its part. The implication
of Wisehart’s argument is that whenever the state uses a
criminal as a witness, which it does very commonly in crim-
inal cases, the entire history of the state’s dealing with the
individual must be excavated and displayed and inspected
for intimations of leniency, and perhaps all his hypothetical
future dealings as well, for he might think that cooperation
now would yield benefits should he ever again become
involved with the law. Any time the government had

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6 No. 04-1632
omitted to charge the witness with a crime, the omission
would have to be disclosed to defense counsel and ex-
plained to the jury, unless the statute of limitations had run,
since until then the government could punish the witness
for unsatisfactory testimony by prosecuting him for the
crime. But second, the impeachment value would be slight,
once charging practices were explained to the jury.
Evidence presented in Wisehart’s postconviction proceed-
ings, and thus not available to the defense at trial, indicated
that the state had not prosecuted Johnson for two burglaries
that they suspected him of having committed, because they
didn’t want by doing so to dissuade him from testifying
against Wisehart; they didn’t want to antagonize him. But
what would knowledge of this motive of the state’s have
added to the jury’s consideration? Had the prosecutor tes-
tified that of course the state didn’t want to risk losing a
witness in a capital case merely to be able to convict the
witness of burglary, this would not have helped Wisehart.
Yet “certainly Johnson was aware of the benefits he was
receiving for providing what the police thought to be val-
uable testimony.” 693 N.E.2d at 58 n. 50. And it’s just a step
from that to thinking that it would have been reasonable for
Johnson to assume that if he failed to cooperate, the state
might revive the charges against him. He thus had some-
thing to gain by testifying against Wisehart and much to
lose if he stopped cooperating. But this just brings us back
to the problem of indefinite boundaries. A criminal trial
must not be allowed to turn into an inquiry into disparate
treatment of criminals, with the witness being asked
whether he’d received any benefit that he would not have
received had the state not wanted his testimony and whether
therefore he feared retaliation if he stopped playing ball. In
sum, we cannot say that the Indiana Supreme Court’s ruling
“was contrary to, or involved an unreasonable application

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No. 04-1632 7
of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
The other issue presented by the appeal is whether
Wisehart was deprived of his right to trial by an impartial
jury. In a postconviction hearing conducted more than a
decade after his trial, Wisehart presented an affidavit from
one of the jurors that stated: “I learned that Mark Wisehart
had taken a polygraph test. The jury had been brought to
the courthouse, and was preparing to begin court when we
were told court would not be held that day. I learned the
court session had been canceled because Mark Wisehart was
to take a polygraph test. I do not recall who gave me the
information about the polygraph. After the polygraph, the
trial continued, and I never learned the results of [the]
polygraph test.” No effort was made to call the juror as a
witness in an effort to obtain further detail of the incident,
and no other factual inquiry was conducted; the quoted pas-
sage is the entire information we have about the incident.
Wisehart points to the statement in the Supreme Court’s
decision in Remmer v. United States, 347 U.S. 227, 229 (1954),
that “in a criminal case, any private communication, con-
tact, or tampering directly or indirectly, with a juror during
a trial about the matter pending before the jury is, for ob-
vious reasons, deemed presumptively prejudicial . . . . The
presumption is not conclusive, but the burden rests heavily
upon the Government to establish, after notice to and hear-
ing of the defendant, that such contact with the jury was
harmless to the defendant.” Ripped from its context, the
statement is difficult to take seriously, because it is so easy
to imagine situations in which a “private communication . . .
with a juror during a trial about the matter pending before
the jury” would not create a rational presumption of
prejudice. Suppose a juror’s spouse said to the juror, “I saw
you on television in the jury box, and you looked great.”

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8 No. 04-1632
That would be a private communication concerning the case,
but it would not be suggestive of jury tampering. General
language does not decide particular cases, as Holmes liked
to say. Judges expect their pronunciamentos to be read in
context, which in Remmer, as the Court went on explain,
involved “the sending of an F.B.I. agent in the midst of a
trial to investigate a juror as to his conduct”—something
that “is bound to impress the juror and is very apt to do so
unduly. A juror must feel free to exercise his functions with-
out the F.B.I. or anyone else looking over his shoulder.” Id.
In short—and the subsequent case law is in accord with
this interpretation of Remmer—the extraneous communi-
cation to the juror must be of a character that creates a
reasonable suspicion that further inquiry is necessary to
determine whether the defendant was deprived of his right
to an impartial jury. How much inquiry is necessary (per-
haps very little, or even none) depends on how likely was
the extraneous communication to contaminate the jury’s
deliberations. Evans v. Young, 854 F.2d 1081, 1083-84 (7th
Cir. 1988); Dyer v. Calderon, 151 F.3d 970, 974-75 (9th Cir.
1998) (en banc); United States v. Williams-Davis, 90 F.3d 490,
499-501 (D.C. Cir. 1996); see generally Oswald v. Bertrand,
374 F.3d 475, 477-78, 480 (7th Cir. 2004). The Indiana
Supreme Court failed to apply this test or any reasonable
variant of it. All the court said was that Wisehart had failed
to present “live testimony” or any other evidence besides
the affidavit, that the affidavit didn’t indicate that the jury
had been biased as a result of learning about the polygraph
test, and that there is no indication that any other jurors
learned about it. The first point is irrelevant; the affidavit was
evidence. The second point shows only that the affidavit
does not prove that the juror was biased but merely raises a
suspicion. The third point is irrelevant, because a defendant
is entitled to be tried by a jury no member of which has a

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No. 04-1632 9
bias induced by extraneous matter. Williams v. Bagley, 380
F.3d 932, 943-44 (6th Cir. 2004); United States v. Brande, 329
F.3d 1173, 1178 (9th Cir. 2003); see also Morgan v. Illinois, 504
U.S. 719, 729 (1992); Smith v. Phillips, 455 U.S. 209 (1982);
Remmer v. United States, supra, 347 U.S. at 229.
The affidavit was sufficient to necessitate a further inquiry
at which the judge would have asked the juror how she had
reacted to learning about the polygraph test. From the fact
that the trial resumed after the test had she assumed that
Wisehart had flunked it? If so, had she thought polygraph
tests such reliable detectors of lies that she inferred that
Wisehart must be guilty? The reliability of polygraph tests
remains an open question (see references in United States v.
Scheffer, 523 U.S. 303, 309-12 (1998); id. at 333 (dissenting
opinion); see also United States v. Lea, 249 F.3d 632, 638 (7th
Cir. 2001); King v. Trippett, 192 F.3d 517, 522 (6th Cir. 1999);
Hubbard v. State, 742 N.E.2d 919, 924 (Ind. 2001)), but some
laypeople may think them infallible. United States v. Scheffer,
supra, 523 U.S. at 313-14. Indiana worries about this; the
prosecutor would have violated Indiana law had he told the
jury that Wisehart had taken a polygraph test and flunked,
since Wisehart hadn’t stipulated to the admissibility of the
test results. Willey v. State, 712 N.E.2d 434, 439-40 (Ind.
1999); Wisehart v. State, supra, 693 N.E.2d at 63 n. 72; Sanchez
v. State, 675 N.E.2d 306, 308 (Ind. 1996).
It doesn’t follow that permitting such evidence to be given
in a criminal trial would violate the Constitution; a violation
of a state’s rule on the admissibility of evidence is not a
violation of federal law. But it does follow that smuggling
the defendant’s test result into the jury room would have
required a hearing under the Remmer line of cases. The
concern with extraneous material in the jury room is not
limited to material that would be inadmissible at trial; if
news about a defendant’s having taken a polygraph test

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10 No. 04-1632
reaches the jurors under the table as it were, the defendant
is denied an ability to put the results in—to explain for
example that he had passed the test, or at least not failed it;
to describe the weaknesses of lie detectors; and in short to
pull, or at least try to pull, the sting.
What happened in this case was not so egregious as tell-
ing the jury sub rosa that Wisehart had taken and flunked a
polygraph test. But it was bad enough to require a hearing,
however abbreviated, to determine what impact the news
that he had taken the test had on the jury.
Back in 1994 it would have been relatively easy to call the
juror as a witness and ask her to explain her reaction to
learning about the polygraph test, though she might have
forgotten because the trial had been conducted in 1983. It
will be all the more difficult today to reconstruct an incident
now more than twenty years in the past. But it was the
state’s burden, given the juror’s affidavit, to present evi-
dence that the jury’s deliberations had not been poisoned by
the reference to Wisehart’s having been given a polygraph
test.
The judgment must therefore be vacated with directions
that the state release Wisehart, retry him, or conduct a
further postconviction hearing addressed to the issue of jury
bias.

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No. 04-1632 11
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-10-05

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