The opinion of the court was delivered by: Plunkett, District Judge.
MEMORANDUM OPINION AND ORDER
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
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 ...