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July 29, 1985


The opinion of the court was delivered by: Plunkett, District Judge.


Keith Eddington and Gary Hart ("Petitioners") petition for a writ of habeas corpus under 28 U.S.C. § 2254, contending that they are unlawfully in the custody of Michael Lane, the Director of the Illinois Department of Corrections; James A. Chrans, the Warden of the Pontiac Correctional Center where Eddington is incarcerated; and James H. Thieret, the Warden of Menard Correctional Center where Hart is incarcerated ("Respondents"). Presently before the court are the parties' cross-motions for summary judgment. Although we find that Petitioners were deprived of their Sixth Amendment rights by their jury's extrajudicial exposure to prejudicial information, for the reasons set forth below, we narrowly conclude that the strength of the evidence against Petitioners renders the error harmless. Accordingly, Respondents' motion is granted and Petitioners' motion is denied.


Petitioners were convicted of kidnapping and unlawful restraint following a jury trial in the Circuit Court of Cook County in 1981, and were sentenced to twelve years incarceration. Petitioners motioned for a new trial upon learning that the jury had during the course of trial viewed a list of charges pending against Petitioners, posted outside the courtroom.

The trial court held a post trial hearing, at which one member of the jury testified that he and other jurors had seen the list while walking around the courthouse during a lunch break. The juror believed the list contained approximately fifteen charges including rape and deviate sexual offenses. He testified that these charges were a topic of discussion during jury deliberations, but that his decision was not affected by the knowledge that these charges were pending against Petitioners.

Because of its erroneous application of Illinois law prohibiting judicial consideration of jurors' mental processes in arriving at a verdict, the trial court concluded that it could not consider this testimony. The court denied Petitioners' motion for a new trial.

The Appellate Court of Illinois, after reviewing the record of the post-trial hearing, affirmed Petitioners' convictions. People v. Eddington, 117 Ill. App.3d 953, 73 Ill. Dec. 248, 453 N.E.2d 1383 (1st Dist. 1983). The court did not make clear whether it found that the jurors' exposure to the list did not constitute constitutional error, or whether it found that constitutional error occurred but was harmless. The court based its affirmance primarily upon two factors. First, the jury was otherwise aware of at least some of Petitioners' criminal activity other than the crimes charged because of properly presented evidence concerning the circumstances of Petitioners' arrests. Id. 117 Ill.App.3d at 1388. Second, the trial court had instructed the jury that this evidence of Petitioners' involvement in an offense other than the offenses charged should be considered only for the limited purposes for which it had been received. Id.

The Supreme Court of Illinois denied Petitioners leave to appeal from the appellate court's decision. The parties agree that Petitioners have exhausted their state remedies, as required by 28 U.S.C. § 2254(b).


The issues raised by Petitioners are whether the exposure of the jury to the list of charges violated their right to confrontation under the Sixth Amendment and, if so, whether they are entitled to habeas relief. The threshold question we must address is the extent of deference we must extend to the decision of the Appellate Court of Illinois. The answer depends on whether that court decided a question of law, which we could review de novo, or a question of fact, which we could not review unless the fact-finding procedure was insufficient in certain respects specified by statute, 28 U.S.C. § 2254(d)(1)-(8).

The question of what events occurred with regard to the jury's witnessing of the list is undoubtedly factual, and, as we discuss infra, the state court fact-finding procedure was sufficient. The problematic issue here concerns Respondents' contention that the appellate court's conclusion derived from those facts, that either no constitutional error occurred or the error was harmless, is a finding of "historical fact" entitled to our deference. Respondents' position relies on the Supreme Court's per curiam decision in Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983).

In Rushen, the Court reviewed a grant of a writ of habeas corpus where the state appellate court had found that an ex parte communication between the trial judge and one juror was unconstitutional but harmless error. In a confusing decision, the Court on the one hand granted that "[t]he final decision whether the alleged constitutional error was harmless is one of federal law. Chapman v. California, 386 U.S. 18, 20-21 [87 S.Ct. 824, 826-827, 17 L.Ed.2d 705] . . . (1967)." Id. 104 S.Ct. at 457. Decisions by state courts on questions of federal law are not, of course, entitled to deference under § 2254(d) but are reviewable de novo. See Cuyler v. Sullivan, 446 U.S. 335, 341-342, 100 S.Ct. 1708, 1714-1715, 64 L.Ed.2d 333 (1980). But, on the other hand, the Court held that the federal courts should have deferred to the state court finding as presumptively correct. 104 S.Ct. at 457. The Court wrote:

    Nevertheless, the factual findings arising out of
  the state courts' post-trial hearings are entitled to
  a presumption of correctness. See 28 U.S.C. § 2254(d)
  [28 U.S.C. § 2254(d)]; Sumner v. Mata, 449 U.S. 539
  [101 S.Ct. 764, 66 L.Ed.2d 722] . . . (1981). The
  substance of the ex parte communications and their
  effect on juror impartiality are questions of
  historical fact entitled to this presumption. Thus,
  they must be determined, in the first instance, by
  state courts and deferred to, in the absence
  "convincing evidence" to the contrary, by the federal
  courts. See Marshall v. Lonberger, 459 U.S. 422,
  432-433, 103 S.Ct. 843, 850 (1983), 74 L.Ed.2d 646.
  Here, both the state's trial and appellate courts
  concluded that the jury's deliberations, as a whole,
  were not biased. This finding of "fact" — on a
  question the state courts were in a far better
  position than the federal courts to answer — deserves
  a "high measure of deference," Sumner v. Mata,
  455 U.S. 591, 598 [102 S.Ct. 1303, 1307, 71 L.Ed.2d 480]
  . . . (1982), and may be set aside only if it
  "lack[s] even `fair support' in the record." Marshall
  v. Longerger, supra, . . .

Id. at 456-457 (emphasis added). The Court concluded its decision with the statement that the federal courts should have deferred to the state court's finding of harmless error, id. at 457, despite the Court's earlier ...

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