Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 03 C 4105-William T. Hart, Judge.
The opinion of the court was delivered by: Tinder, Circuit Judge.
Before EASTERBROOK, Chief Judge, and WOOD and TINDER, Circuit Judges.
Frazier Crockett is currently serving sentences of natural life in prison without parole and 30 years' imprisonment for his 1996 convictions for two counts of first degree murder and two counts of robbery. After unsuccessful appeals to the Illinois Appellate Court and Illinois Supreme Court, Crockett filed a petition for a writ of habeas corpus in the Northern District of Illinois. The court denied his petition, and he filed a notice of appeal. The district court granted Crockett's motion for a certificate of appealability on one issue: Were Crockett's constitutional rights denied when he was not timely informed that the jury had sent a question to the trial judge during deliberations?
Crockett's convictions arise from the robbery and fatal shooting of two men, Javier Guzman and Jorge Torres, in an alley in Chicago's Rogers Park neighborhood. Upon Crockett's arrest, he gave a statement to police describing the crimes: He and James Swansey, with a gun drawn, followed two men into an alley and demanded that the men lie down. Swansey asked the men if they had any money on them, but the men claimed they did not. Crockett pointed the gun at the men while Swansey searched them. Crockett then also searched the men and found money in one man's pocket. He suggested to Swansey that they "pop" the men for lying, and Swansey shot them both in the head.
At trial, it was undisputed that Swansey was the trigger-man. Three of Crockett's acquaintances testified for the State that Crockett told them that he and Swansey robbed the men and Swansey shot them. Crockett's theory of defense was that he was present and watched the com-mission of the crimes but did not participate. Crockett testified at trial that on the night of the murders he had been walking around with Swansey and Kenneth Henry. (Henry was one of the State's witnesses at trial and the person who initially provided the tip to police that Crockett had been involved in the crimes.) Crockett claimed that he stopped to talk to a friend on the street when Swansey and Henry followed two men into the alley. He was attempting to catch up to Swansey and Henry and was standing in the entrance to the alley sixty feet away when Henry and Swansey robbed the men. He began to run away after Swansey fired the first shot. He later accepted "hush money" from Henry to keep quiet about what he had witnessed. Crockett explained that his prior statement to police implicating himself (which did not mention Henry) was a lie to protect Henry, whom he feared, because Henry was a drug dealer for whom Crockett sold drugs.
During deliberations, the jury sent three notes to the judge. The first two notes asked for a dictionary and for the reports of police detectives. The judge directed the sheriff to contact defense counsel by telephone about the notes, and the court conferred with counsel about the appropriate response. After the parties conferred, the judge declined the jury's requests and directed the jury to continue deliberating. Later, the jury sent a third note to the judge asking for a definition of the word "abet." The *fn1 judge again directed the sheriff to contact defense counsel, but for unknown reasons the sheriff either did not contact defense counsel or was unable to reach them. The judge did not respond to the jury, and the jury eventually reached a guilty verdict. The judge did not inform defense counsel before or after the verdict that the jury had asked a third question.
After the trial, defense counsel discovered the third note from the jury in the court's case file. In a post-verdict motion for acquittal or a new trial, defense counsel included affidavits from three jurors. All three jurors stated that they had requested a dictionary to look up the word "abet" but received a response from the trial judge to keep deliberating. All three jurors stated that they later sent a note specifically asking for the definition of "abet" but received no response. One juror explained:
Some of the jurors sent out a note asking for the definition of the word abet. We waited for a response but never received one. Eventually some of the jurors came up with their own definition because we had no legal definition. We decided that Frazier Crockett was guilty of aiding and abetting Kenneth Henry and James Swansey because, while he observed the robbery and murder from 60 feet away, Frazier Crockett did nothing to stop them, he kept the $40.00 hush money after the fact, and he never went to the police. The jury did not determine that Frazier Crockett encouraged, solicited, promoted or facilitated the commission of the armed robberies and murders.
In less detail, the other two jurors provided similar ac-counts of the deliberations, stating that they concluded Crockett was guilty because he observed the crime and never went to the police. The jurors made conflicting estimates as to how much time had passed between sending the note and reaching the verdict: one estimated fifteen minutes, another estimated between thirty minutes and one hour, and a third estimated one hour.
The trial court denied Crockett's motion for a new trial. On appeal, the Illinois Appellate Court found that the definition of the word "abet" was central to Crockett's defense because if the jury "mistakenly believed that 'abet' could encompass less culpable behavior than the other terms [in the jury instruction], such as being present at the commission of a crime and doing nothing about it, the defendant's defense was precluded." People v. Crockett, 731 N.E.2d 823, 835 (Ill. App. Ct. 2000). The court noted that the jury was entitled to clarification, but Crockett shouldered the burden of demonstrating factors such as how much time elapsed before the verdict was reached and what attempts were made to reach counsel; if the jury reached a verdict before the court could reasonably answer, then there was no reversible error. Id. at 835-36. The court concluded that Crockett failed to construct a record that demonstrated that the trial court unreasonably delayed in responding to the jury prior to the verdict. Id. at 836. The court found, however, that the trial court erred in not informing Crockett after the verdict was reached that the jury had asked a third question, but it determined that the error was harmless because Crockett had discovered the note within a 30-day period (in time to move for acquittal or a new trial), the argument on the motion did not occur for several more months, and he was able to obtain affidavits from three jurors. Id. The Illinois Supreme Court denied Crockett's petition for leave to appeal. People v. Crockett, 738 N.E.2d 930 (Ill. 2000).*fn2
Crockett filed a habeas petition under 28 U.S.C. § 2254 with the district court. The court noted that it does not violate a defendant's constitutional right to a fair trial when a deliberating jury asks a question but reaches a verdict before the court can reasonably respond. Crockett contended that the situation was different where the trial judge entirely failed to inform the defense counsel before the verdict that the note even existed; the court agreed the distinction could be important but found it to be irrelevant in light of the Illinois Appellate Court's finding that the trial judge did attempt to contact the defense counsel. While noting that Crockett had never appealed the state court's decision to place the burden upon him, the district court inquired as to whether the Illinois Appellate Court did so in error. The court reasoned that if there were a constitutional error, then the Illinois Appellate Court should have applied the harmless error analysis of Chapman v. California, 386 U.S. 18, 24 (1967), and placed the burden on the State. The district court con- cluded, however, that it was appropriate for Crockett to bear the burden until he established that a constitutional violation ...