Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 346 - Joseph Sam Perry, Judge.
Pell, Bauer, Circuit Judges, and Campbell, Senior District Judge.*fn* Campbell, Senior District Judge, concurring in part, dissenting in part.
The issue on this appeal from the dismissal of the petitioner's habeas corpus petition is whether the state trial judge unconstitutionally coerced the jury by repeatedly polling them during deliberations in order to ascertain whether they could reach a verdict.
Inasmuch as the petitioner partially rests his argument on the nature of the jury's verdict as well as on the instructions given, it is necessary to briefly state the facts surrounding the underlying charge.
Petitioner Anthony, an inmate at the Joliet Branch of the Illinois State Penitentiary, was charged with four counts of attempted murder for attacking four prison guards with a razor after he had been ordered to shave his moustache. His sole defense was insanity.
The events in issue in this appeal occurred during the jury deliberations in Anthony's second trial, his first trial having ended in a mistrial after the jury reported itself deadlocked following ten hours of deliberation.
During the second trial, the judge communicated with the deliberating jury three times. First, after three hours of deliberation, he denied a written request from the jury for a transcript of the defense psychiatrist's testimony. Second, after about twelve hours of deliberation, the judge gave the jury a modified Allen instruction. Third, one and one-half hours after giving the Allen-type instruction, the judge called the jury into the courtroom to determine whether they could reach a verdict. This third contact is the one Anthony challenges.
The details of the judge's questioning are significant. After the jury returned to the courtroom, the judge asked each juror, "In your opinion, are you a deadlocked jury?" Eleven of the jurors answered "yes"; juror Avalon answered "no." The judge then asked Avalon, "Do you feel by further deliberations this jury can come to a verdict?" He responded "I think so," and the judge asked the same question of each of the jurors. They all responded negatively, except Avalon, who responded that the jury could return a verdict in a half-hour. The judge then asked all the jurors, "Do you believe that by deliberating another half-hour this jury can arrive at a verdict?" Eight answered "yes," two answered that they "would like to try," and two answered "no." The judge then remarked, "All right, I'm going to send you back to deliberate further upon your verdict," and the jury retired. Defendant's counsel never objected to the judge's questioning. Twenty minutes later, the jury returned guilty verdicts on two of the counts and not guilty verdicts on the other two counts.
Anthony appealed to the Illinois Appellate Court on the jury coercion theory presented here. The Appellate Court affirmed his conviction, People v. Anthony, 30 Ill. App. 3d 464, 334 N.E.2d 208 (3d Dist. 1975), and the Illinois Supreme Court denied his petition for leave to appeal. People v. Anthony, 61 Ill.2d 598 (1975).
Thereafter Anthony filed his habeas petition with the district court. After both sides moved for summary judgment, the district judge treated the state's motion as a motion to dismiss and dismissed the suit. The judge found that (1) the petitioner had failed to exhaust his state remedies by neglecting to seek relief under the Illinois Post-Conviction Hearing Act, Ill. Rev. Stat. ch. 38 § 122-1; (2) the facts set forth in the petition did not support petitioner's jury coercion claim and (3) the trial judge acted within his discretion in declining to give a copy of the defense psychiatrist's testimony to the deliberating jury. The petitioner appeals only the first two findings.
This Circuit held in United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974), that an Illinois habeas corpus petitioner whose claim has been rejected by the Illinois courts on direct appeal need not process a petition under the Illinois Post-Conviction Hearing Act before the district court can hear the claim. The Illinois Appellate Court denied Anthony's jury coercion claim on direct appeal, and the Illinois Supreme Court denied him leave to appeal. Thus, the district court erred in holding ...